Austin Lawyer, February 2024 by Austin Bar Association

austinbar.org FEBRUARY 2024 | VOLUME 33, NUMBER 1

NJC Names Judge Maya Guerra Gamble a “Courageous Judge”

udge of the 459th District Court and Austin Bar Treasurer Maya Guerra Gamble was named one of The National Judicial College (NJC)’s “60 Courageous Judges.” The NJC’s Courageous Judges Awards “honor 60 judges, present and past, from courts in the United States and abroad, who have demonstrated courage in upholding the rule of law and providing justice for all.”1 Nominations were solicited from NJC’s alumni, faculty, staff, and others associated with the organization. An internal committee headed by College President Benes Z. Aldana made the final selections, relying almost exclusively on the examples of courage described by the nominators. Many of the judges were recognized for honoring their vow to follow the law and Constitution in the face of contrary public opin-

ion, political pressure, and threats to personal safety. Judge Guerra Gamble’s nomination heralded her handling of Heslin v. Jones, one of the many lawsuits filed against conspiracy theorist Alex Jones and his network, InfoWars. Plaintiff Neil Heslin was the parent of a student killed during the Sandy Hook school shooting in 2012. In the suit, Heslin sought damages from Jones and other defendants. In numerous instances after the shooting, Jones accused the parents, school staff, and students of being “crisis actors,” alleging no one had died at Sandy Hook, and calling it a “false flag” or fake event. As a result of these accusations, Heslin was subjected to harassment and threats, both in person and online, Heslin’s attorneys said during the trial.

TOP LEFT: 459th Civil District Judge and Austin Bar Treasurer Maya Guerra Gamble. TOP RIGHT: Alex Jones being questioned in Judge Guerra Gamble’s courtroom. BOTTOM RIGHT: A Zoom hearing with Molly Duane, an attorney with the Center for Reproductive Rights, and Austin Kaplan, both of whom represented Kate and Justin Cox. Kate Cox sought a temporary restraining order (TRO) against Texas’s abortion ban in order to terminate a nonviable and potentially life-threatening pregnancy. Judge Guerra Gamble granted the TRO during this hearing.

The trial started in July 2022 and lasted two weeks. In August 2022, Judge Guerra Gamble ruled against Jones, awarding more than $4 million in compensatory damages and more than $45 million in punitive damages. Jones and his attorneys argued that Texas law capped the amounts that could be awarded in certain types of damages, and that the ruling should be cut by more than $40 million. In November 2022, Judge Guerra Gamble rejected this argument.

Speaking to the media during breaks in the trial and during his daily four-hour broadcast, Jones called the proceedings “a kangaroo court,” “a show trial,” and “a witch hunt.” In addition to this highly publicized trial, Judge Guerra Gamble’s NJC nomination also cited her ruling against a law allowing private citizens in Texas to sue anyone who “aids or abets” abortion after six weeks. continued on page 4.

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CONTENTS

AUSTINLAWYER FEBRUARY 2024 | VOLUME 33, NUMBER 1 AL AL

INSIDE 1

NJC Names Judge Maya Guerra Gamble a “Courageous Judge”

IN EVERY ISSUE

Briefs

CONNECTIONS

Travis County Service and Filing Fees Updated for 2024

AYLA

ONLINE austinbar.org

Austin Bar Member Richard Pena Named 2024 NCBP Fellow

Federal Civil Court Update

Third Court of Appeals Civil Update

22nd Annual Austin Adoption Day Sees 10 Families Grow

Third Court of Appeals Criminal Update

The Denise Hyde Scholarship Fund Needs You!

A Message from VLS’ New President

DEPARTMENTS

UT Law Researching How to Reduce Invalid Drug Patents

Responsible Data Handling in the Age of AI

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22 Decriminalizing Mental Health in Travis County: Part 6 26

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On Sept. 3, 2021, Judge Guerra Gamble stopped a lawsuit from the advocacy group Texas Right to Life against workers at Planned Parenthood in Texas from proceeding. The ruling came just two days after Sept. 1, when Senate Bill 8 had gone into effect. This bill allows private citizens to sue women who get abortions and anyone who helps facilitate getting an abortion after six weeks’ gestation. “The Court finds that S.B. 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8,” Gamble wrote in her decision. Gamble also played an integral role in another abortion-related case in November 2023. Kate Cox of Dallas applied for a temporary restraining order (TRO) against Senate Bill 8, arguing she had been advised her pregnancy was nonviable and posed a risk to her health. Her unborn child had been diagnosed with a condition called Trisomy 18, which is reportedly nearly always fatal before or very soon after birth. Cox was also advised by her OB-GYN that continuing to carry the child could impact her future fertility, as her previous two pregnancies had been delivered via C-section. A third C-section could result in rupturing her uterus and/or needing a hysterectomy, she was told. On Dec. 7, 2023, Judge Guerra Gamble issued the TRO, allowing Cox to obtain an abortion in Texas and exempting Cox and anyone involved in the abortion from the bill’s provisions. The Texas Supreme Court subsequently blocked Judge Guerra Gamble’s order, holding that Cox did not qualify for an exception to Texas’s abortion ban. Cox had already traveled out of state to have the procedure done, however, according to her lawyers a few hours after the Texas Supreme Court issued its order. AL ENDNOTES

1 https://www.judges.org/60th_anniversary/60-courageous-judges-honorees/.

AUSTINLAWYER OFFICIAL PUBLICATION ALOF THE ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION

Justice Chari Kelly �� President Mary-Ellen King �� President-Elect Maitreya Tomlinson �� Secretary Judge Maya Guerra Gamble �� Treasurer Amanda Arriaga �� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

Sarah Harp �� President Emily Morris �� President-Elect Jenna Malsbary �� Treasurer Gracie Wood Shepherd �� Secretary Blair Leake �� Immediate Past President

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712 W. 16th Street Austin, TX 78701 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 DeLaine Ward....................... Executive Director Debbie Kelly.......................... Associate Executive Director Rachael K. Jones................... Editor-In-Chief Billy Huntsman...................... Managing Editor Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar board of directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. District Court for the Western District of Texas and the Texas Third Court of Appeals; CLE opportunities; members’ and committees’ accomplishments; and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association board of directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed above. For editorial guidelines, visit austinbar.org in the “About Us” tab.

AUSTINLAWYER | FEBRUARY 2024

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PRESIDENT’S COLUMN

Taking the Leap for Board Certification BY JUSTICE CHARI L. KELLY, THIRD COURT OF APPEALS

ne of my proudest professional accomplishments is being board-certified in criminal law. There are many types of board certifications and professional recognitions for trial work, but three of the most popular in Texas are the Texas Board of Legal Specialization (TBLS), the National Board of Trial Advocacy (NBTA), and the American Board of Trial Advocates (ABOTA). While each has different requirements, if you are board-certified in one organization, you often can waive the examination for another. (For example, I am board-certified by TBLS and NBTA, but only had to take the TBLS exam.) I did not know many board-certified attorneys before I took my exam, and I remember being discouraged by many from taking it. My coworkers at the time would pepper me with comments and questions, downplaying board certification.

“You are a government employee; you don’t need clients.” “Why would you take another test after the bar?” “You know, you aren’t going to be paid any more for being board-certified.” Other people told me the test was too hard. I remember a few attorneys sharing their experiences failing and never attempting it again. Now, after being board-certified for several years, I always encourage attorneys to take the leap. It’s a winwin scenario. If you pass, you can use it in marketing, to negotiate for a raise, and as a talking point should you choose to run for judicial office. Even if you don’t pass, the time you spend studying the rules and the law in your practice area makes you a better lawyer. Also, if your exam score is close to passing, you can advocate to the examination officials whether a particular question should be counted toward your score or not considered if it was misleading or incorrect. (I have had at least one friend go from a failing score to a passing score because two questions were later eliminated on the exam). If you are thinking about board certification, start compiling a list of your trials, hearings, and appeals now. Even if you don’t currently meet the requirements for board certification, it will be easier to count as you go rather than trying to recreate a log of your past five years of work the afternoon you start your

application. Also, if you’re close to meeting the requirements, you can advocate in your application to take the test, even if you are short a trial or an appeal. I know what you’re thinking: “Chari, I’m a civil litigator, and there aren’t that many opportunities for civil jury trials.” A solution? Take on some pro bono cases each year. Volunteer Legal Services is always in need of great attorneys. One local member of ABOTA used pro bono cases to meet the jury trial eligibility requirements for that organization. This month, VLS president Neal Falgoust also shares his experience with VLS cases and how to be more involved with pro bono, which you can read

about on page 21. And on the appellate side, if you mention in your request for oral argument that you are seeking board certification, or that you are participating in a pro bono program, the justices take that into consideration and grant many of those requests. If you’re on the fence, why not go for it? There are many attorneys in town willing to give you their tips for studying for their respective board examinations or getting jury trials. I have an open door to anyone who wants information about becoming board-certified in criminal law. And if you’re worried about not passing, I know many well-respected lawyers who’ve taken their exams more than once to become board-certified. AL

Visit these sites to get started: Texas Board of Legal Specialization: https://www.tbls.org National Board of Trial Advocacy: https://www.nbtalawyers.org/ American Board of Trial Advocates: https://www.abota.org/

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BRIEFS New Members The Austin Bar welcomes the following new members: Roy Adams Stephanie Allen William Arnold Glorieni Azeredo Caitlin Boehne Casey Craft

TOP (from left): Armbrust, Fischer, Loehr, Meade, Petri. BOTTOM (from left): Robertson, Suttle, Taylor, Winstead.

Christopher Crumbley Amanda Czocher Monica Dike Missy Franklin Matthew Gamboa-Lutz Taylor Gifford Nathan Inurria Daniel Jordan Lannie Todd Kelly Emi Lawson Nathaniel Moore Luke Porche Julian Rios Ronald Rodriguez Melissa Ruiz Teddy Scott Mikhaela Stavrinou Caroline Swift John Sydow Veronica Valenzuela Charles Verdict Blake Young Faris Young

KUDOS Congratulations to David Armbrust for his inclusion in Austin Business Journal’s inaugural Power Players list, which recognizes individuals who have notable influence in their industry. Armbrust is the founding partner of Armbrust & Brown and practices administrative, environmental, land use, and real estate law. Congratulations to Kelly Caperton Fischer on her promotion to partner in Goranson Bain Ausley’s Austin office. Fischer’s practice focuses on family law, specifically complex property and child-related matters. She was honored by The Best Lawyers in America as Lawyer of the Year for Collaborative Law: Family Law in Austin for 2024. Austin Monthly has also named her a Top Attorney in Austin since 2020. Congratulations to Jacob Loehr, who has joined Cofer & Connelly, transitioning his practice from corporate M&A to criminal law. Good luck!

AUSTINLAWYER | FEBRUARY 2024

Congratulations to Nikelle Meade for her inclusion in Austin Business Journal’s inaugural Power Players list. Meade is a partner in Husch Blackwell’s Austin office and is a member of the firm’s Real Estate, Development & Construction section. Congratulations to Jamey Petri, who has been promoted to shareholder in Ogletree Deakins’ Austin office. Her legal practice focuses on procuring immigrant and non-immigrant visas in employment and family-based preference categories. Congratulations to Eric Robertson, who has been tapped to head Goranson Bain Ausley’s new Divorce Coaching division. Congratulations to Richard Suttle for his inclusion in Austin Business Journal’s inaugural Power Players list. Suttle is a partner at Armbrust & Brown and practices land use and real estate development law.

Congratulations to Tim Taylor for his inclusion in Austin Business Journal’s inaugural Power Players list. Taylor is a partner at Jackson Walker and practices real estate law. Congratulations to Pete Winstead for his inclusion in Austin Business Journal’s inaugural Power Players list. Winstead is the founder of Winstead PC. He practices alternate and renewable energy law and also chairs the firm’s Government Relations Practice Group. AL

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA GUEST COLUMN BY TANNER MICHELLE SCHEEF, KAPLAN LAW FIRM

How the CROWN Act Protects Individual Rights

Tanner Michelle Scheef is an associate at Kaplan Law Firm.

exas law historically has not specifically prohibited discrimination on the basis of hairstyle and texture, despite regular public outcries against such discrimination in practice.1 Civil rights practitioners, finding Texas law unhelpful, would regularly look to federal anti-discrimination laws to try to remedy instances of hairstyle and texture discrimination. Unfortunately, without a strong state prohibition, this kind of discrimination appeared to be common practice in employment and school settings across Texas.2 The Treyvion Gray case exemplified the problem in Texas. School officials at Needville High School in Fort Bend County ordered Gray to cut his locs to conform with the school’s grooming policy. When he did not, the school placed him in inschool suspension for two months, and an alternative school for another month, and banned Gray from all extracurricular activities, including prom and his class graduation ceremony. Gray filed a lawsuit in federal court, and the judge granted a temporary restraining order undoing the punishment.3 The case is set for trial in November 2024. The case of DeAndre Arnold, a Texas high school student who was suspended in 2020 because the length of his locs allegedly violated the district’s dress code, created a nationwide movement. Arnold, a Black student of Trinidadian descent, emphasized that his hairstyle was a significant aspect of his family’s cultural heri10

AUSTINLAWYER | FEBRUARY 2024

tage, and all the men in his family wore their locs to their waists. Arnold filed a federal lawsuit as well.4 The judge in that case granted a preliminary injunction in 2020 enjoining the Barbers Hill Independent School District from enforcing hair-length policy or otherwise seeking to force a specific student to cut his locs.5 Arnold and his case became national news, with Arnold appearing on Ellen6 and at the Oscars.7 Inspired by Arnold’s fight, members of the Texas Legislative Black Caucus pushed to pass a new law in Texas banning hairstyle discrimination. In 2023, Texas passed the CROWN (Creating a Respectful and Open World for Natural Hair) Act as part of a national movement of states protecting the rights of those with a hair texture or style that is either currently or historically associated with race. While national CROWN Act legislation stalled in the Senate in 2022 and has yet to be taken up again, 24 states (both red and blue) have passed such legislation. These laws protect against unjust grooming policies that have a disparate impact on Black children, women, and men in workplaces and public schools. “After all this time to get what we’ve been fighting for, this made everything worth it because I know now they can never do anything like this to anybody else in the state of Texas,” Arnold told KTRK-TV when the Texas CROWN Act passed.8 The Act passed with overwhelming support: 143-5 in the House and 29-1 in the Senate. The new law took effect on Sept. 1, 2023. It amends the Texas Education Code, the Texas Property Code, and the Texas Labor Code to prohibit school

districts, colleges/universities, employers, and labor unions from discriminating against any “protected hairstyle.” The amended Labor Code section reads: (a) In this section, “protective hairstyle” includes braids, locks, and twists. (b) A provision in this chapter referring to discrimination because of race or on the basis of race includes discrimination because of or on the basis of an employee’s hair texture or protective hairstyle commonly or historically associated with race. (c) An employer, labor union, or employment agency commits an unlawful employment practice if [it] adopts or enforces a dress or grooming policy that discriminates against a hair texture or protective hairstyle commonly or historically associated with race. Tex. Labor Code § 301.0045. The amended Education Code section contains similar language: “Any student dress or grooming policy adopted by a school district, including a student dress or grooming policy for any extracurricular activity, may not discriminate against a hair texture or protective hairstyle commonly or historically associated with race.” Tex. Educ. Code § 25.902(b). Texas litigants are already testing the limits of the CROWN Act. Arnold’s high school continued to enforce its grooming code, in arguable contravention of the law, when it suspended junior Darryl George for over three weeks in 2023 because the alleged length of his locs violated the district’s dress and grooming code rule, which states hair “will not extend,

at any time, below the eyebrows or below the ear lobes.”9,10 In response, George’s family has filed a lawsuit against the school district, alleging among other things that the district violated the CROWN Act.11 Meanwhile, the district suspended George again in late 2023, claiming the length of his hair violates school policy.11 The CROWN Act marks a step forward in anti-discrimination and civil rights protections in schooling, housing, and the workplace across the state of Texas. Yet the extent to which courts will interpret and apply the statute remains to be seen. AL FOOTNOTES

1 See, e.g., https://www.newsweek.com/ teen-six-flags-texas-job-dreadlocks-extreme-hairstyle-1380118 (Texas teen claimed Six Flags denied him a job because his dreads were considered an “extreme hairstyle”). 2 See, e.g., https://spectrumlocalnews.com/tx/south-texas-el-paso/ news/2022/05/11/hair-discrimination-black-teen-graduation-. 3 Order, Gray v. Needville Indep. Sch. Dist., 601 F. Supp. 3d 188 (S.D. Tex. 2022), appeal dismissed, No. 22-20229, 2022 WL 3593770 (5th Cir. May 11, 2022). 4 Arnold v. Barbers Hill Independent School District, 4:20-cv-01802, (S.D. Tex. filed May 22, 2020). 5 Mem. Op. and Order, Arnold, 4:20cv-01802, available at https://storage.courtlistener.com/recap/gov. uscourts.txsd.1779350/gov.uscourts. txsd.1779350.98.0_1.pdf. 6 h t t p s : // w w w . y o u t u b e . c o m / watch?v=aInpfPQRnyc. 7 h t t p s : // w w w . t e x a s t r i b u n e . org/2020/02/06/prewrite-after-blackstudent-suspended-over-dreadlockssome-texas-lawm/. 8 https://abc13.com/crown-act-deandre-arnold-house-bill-567-discriminatory-hairstyles/13321454/. 9 https://abc13.com/barbers-hill-isdstudent-darryl-george-suspended-fordreadlocks-crown-act-hair-discrimination-texas-law/13806662/. 10 https://resources.finalsite.net/images/ v1658765652/bhisd/oinchkulgqrkychthutu/BHISDDressandGroomingCode_1.pdf. 11 Complaint, George v. Abbott, 4:23-cv03609, 2023 WL 6298155 (S.D. Tex., filed Sept. 23, 2023). 12 h ttps://apnews.com/article/hairstyle-texas-crown-act-racial-discrimination-student-9fdf5384db15b925a6d601d746da3367.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Teams Up with YMCA to Serve Parents and Children

Nominations for AYLA Board Positions Now Open

re you interested in running for a position on AYLA’s 2024-25 board of directors? If so, now is the time to apply! Nomination forms are now available on AYLA’s website, and may be submitted through March 1, 2024. Serving as a director on the AYLA board is a great way to gain leadership experience, shape the local legal community, and meet other young attorneys outside of the confines of your own office and legal field. Candidates must be current AYLA members and be 40 years of age or younger as of July 1, 2024 in order to be eligible for a board position. To be placed on the ballot, submit a nomination form signed by 10 current AYLA members to Debbie Kelly at debbie@austinbar.org by March 1. Nomination forms and additional information can be found online at ayla.org. Don’t miss this chance to get plugged into—and lead—your generation of Austin attorneys! AL

AYLA hosted its Holiday Program in partnership with the YMCA on Dec. 3, 2023. AYLA was able to provide for 96 families and more than 200 children! AYLA’s Holiday Program is an annual event for underprivileged families in the Austin community. AYLA collects donations of toys, gifts, and funds for the event, which offers parents an opportunity to “shop” for presents for their children at no cost to them, and even have the gifts wrapped by volunteers. Children in attendance enjoyed

FRONT (L-R): AYLA President Sarah Harp, Lena Proft, David Courreges as Santa, and Jillian French. BACK (L-R): AYLA Executive Director Debbie Kelly, Michelle King, and Emily Morris.

a magic show, photos with Santa, games, and holiday crafts courtesy of AYLA volunteers and the YMCA. The sponsors of AYLA’s Oct. 28 Tailgate for a Cause event provided funds to purchase presents and HEB gift cards for the families. Thank you to all of our volunteers who made this event possible! Special thanks to our generous sponsor: YMCA of Central Texas. AL

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FEDERAL CIVIL COURT UPDATE

Jason LaFond is an Austin-based appellate litigator with significant experience before the Fifth Circuit. He is a Senior Counsel at Yetter Coleman, LLP.

The following are summaries of opinions issued by the Fifth Circuit in October 2023. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

> FIRST AMENDMENT: All State Bar speech supported by mandatory dues must be directly related to regulating the legal profession or improving the quality of legal services. Boudreaux v. La. State Bar Ass’n, 86 F.4th 620 (5th Cir. 2023). In 2021, the Fifth Circuit—in parallel cases from Louisiana and Texas—held that compelling lawyers to join and financially support a state bar violates the First Amendment to the extent the bar uses mandatory dues to support non-germane speech. Subsequently, the Louisiana State Bar made significant changes to its operations. Even so, Boudreaux maintained that the bar continued to violate the First Amendment. The district court disagreed and dismissed his claims. The Fifth Circuit reversed in part and rendered a preliminary injunction preventing the bar from requiring Boudreaux to join or pay dues. The court began by restating the rule laid down in 2021: If a bar’s speech activities are ger12

AUSTINLAWYER | FEBRUARY 2024

mane, then there is no free association or free speech problem with compulsory membership. But if a bar engages in non-germane speech, then forced membership is subject to and fails to satisfy “exacting scrutiny.” In finding that several of the bar’s challenged speech activities were non-germane, the court offered two clarifications of its prior holding. First, speech promoting purely informational articles is not germane—the bar may promote others’ speech only when that speech is tailored to regulating the legal profession or improving the quality of legal services. Second, there is no de minimis exception to the germaneness requirement. Animating both clarifications was the court’s concern with line-drawing. The court explained, for example, that if the bar may opine, advise, and inform on anything that they deem is generally conducive to attorney health and wellness, there is no limiting principle. Similarly, the court found that a de minimis standard is unworkable in the context of free speech because it would force judges to decide whether speech is objectionable enough to raise First Amendment problems. As a result, the court found the following non-germane: the bar’s “Wellness Wednesday” tweets; tweets about technology and safety; notifications about Red Mass and generic community-engagement opportunities; and the sharing of articles on student loan burdens and Pride Month. The court, however, rejected several of Boudreaux’s challenges. The court found that Boudreaux’s claims were moot to the extent he relied on activities occurring before the bar made significant changes in 2021. And the court found that the bar’s policy positions on taxation of legal services and access to justice initiatives were germane because they directly related to the regulation of the legal profession and the provision of legal services.

ANTITRUST: FTC’s adjudication of challenge to merger was constitutional but flawed. Illumina, Inc. v. Fed. Trade Comm’n, No. 23-60167, 2023 WL 8664628 (5th Cir. Dec. 15, 2023). Illumina is at the forefront of genetic sequencing technology used in multi-cancer early detection (MCED) tests. Illumina is the only manufacturer of the sequencing technology needed for MCED tests. In 2020, Illumina merged with Grail, the maker of the only MCED test currently on the market. Grail was originally a wholly owned subsidiary of Illumina, but was spun off to raise money to bring Grail’s MCED test to market. In between the spin-off and merger, several other companies began developing MCED tests based on Illumina’s sequencing technology. To assuage fears that Illumina would hold its technology open to only the Grail’s MCED, Illumina followed the merger with an irrevocable offer to all for-profit U.S. oncology customers: Until 2033, Illumina would provide its sequencing platforms at the same price and with the same access to services and products as provided to Grail. Customers would have until 2027 to accept the offer. The Federal Trade Commission’s complaint counsel challenged the merger in an administrative proceeding. The administrative law judge rejected the challenge, but the FTC commissioners reversed, finding the merger was likely to substantially lessen competition in the market for the research, development, and commercialization of MCED tests. Importantly, the commissioners refused to consider Illumina’s open offer when deciding the merits—finding that the offer could only be considered at the remedy stage. The FTC ordered Illumina to divest Grail. The Fifth Circuit vacated and remanded. The court rejected most of Illumina’s challenges to the FTC’s decision, but concluded that the FTC erred by refusing to consider the open offer at the merits stage.

The court first rejected multiple constitutional challenges. The court denied Illumina’s non-delegation challenge, for example, holding that Congress’ direction to pursue “the interest of the public” offers an intelligible principle. And the court refused to find that FTC commissioners were too insulated from presidential removal—in Humphrey’s Executor, the Supreme Court upheld the FTC, and even if the FTC’s powers had changed since, only the Supreme Court could overrule Humphrey’s. The court then rejected several challenges to the merits. The court held that substantial evidence supported the FTC’s product market definition—“the research, development, and commercialization of MCED tests.” Undercutting nearly all of Illumina’s merits challenges, the court concluded that the FTC was allowed to define the market based on products that are anticipated or expected, as opposed to just those products that currently exist for sale. As a result, Grail’s product could not be considered in isolation. But the court held that the FTC erred in refusing to consider Illumina’s open offer as part of the merits. The court explained that the FTC must prove that a merger will substantially reduce competition, and the open offer could sufficiently mitigate the merger’s effect such that it was no longer likely to substantially lessen competition. As a result, the court concluded, Illumina should have been allowed to press the open offer to rebut the FTC’s prima facie case. AL

THIRD COURT OF APPEALS CIVIL UPDATE supported the modification and reversed and rendered. TORT CLAIMS ACT: Evidence of actual notice waived immunity.

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board-certified in civil appellate law by the Texas Board of Legal Specialization and owner of Laurie Ratliff LLC.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2023. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of Jan. 9, 2024.

> FAMILY LAW: Court reverses modification order entered without evidence. Abila v. Miller, No. 03-22-00452CV (Tex. App.—Austin Dec. 21, 2023, no pet. h.). In a conservatorship modification proceeding, father sought the exclusive right to designate child’s residence. Mother did not respond and did not appear at the hearing. After father’s attorney’s opening statement, the trial court granted the requested relief without admitting any evidence. The court of appeals held that when a movant seeks modification of a child-conservatorship order, even when a respondent defaults, the movant must prove the required allegations: a material and substantial change and best interest of the child. The court further noted that the trial court could not take judicial notice of the truth of allegations, including father’s allegation that mother had denied him access to the child. The court held that no evidence

Univ. of Tex. SW Med. Ctr. v. Matias, No. 03-21-00575-CV (Tex. App.—Austin Nov. 30, 2023, no pet. h.) (mem. op.). Matias sued UT for negligence in treating her newborn child. UT moved to dismiss for failure to comply with the pre-suit notice requirement in TTCA § 101.101. UT contended that it did not receive formal notice of the claim until more than a year after the child’s death. The trial court denied UT’s plea to the jurisdiction. The court of appeals observed that immunity is waived if the governmental unit has either formal or actual notice of the claim within six months of the incident. A governmental unit has actual notice if it has subjective knowledge of: 1) a death or injury; 2) the unit’s alleged fault in producing or contributing to the injury; and 3) the identity of the parties involved. Matias alleged that the hospital’s discharge summary described the cause of injury as the improper placement of a heart tube during surgery. The court held that the evidence created a fact issue on actual notice and affirmed. TRIAL PROCEDURE: Court reverses attorney-fees award for failure to meet Rohrmoos. Allan v. Allan, No. 03-22-00193CV (Tex. App.—Austin Nov. 17, 2023, no pet. h.) (mem. op.). In a divorce proceeding, the trial court ordered husband to pay wife $25,480 in attorney fees. Husband contended that the attorney-fees evidence failed to describe the particular services performed as required by Rohrmoos. Wife produced her trial attorney’s invoices totaling $9,262. Wife’s attorney filed a post-trial supplemental declaration stating that $13,910 in additional fees were accrued through trial. The court of appeals held that supplemental declaration failed to state the particular services provided and was too general to

support the award. Because wife presented some evidence of fees incurred ($9,626) but failed to provide the requisite details to support the amount awarded, the court reversed and remanded for a redetermination. STATUTORY INTERPRETATION: Funeral home immune from liability from alleged improper burial. Tran v. Affordable Burial & Cremation Servs., LLC, No. 03-2200406-CV (Tex. App.—Austin Dec. 15, 2023, no pet. h.) (mem. op.). Affordable embalmed and entombed Lien Dang’s remains at David Ritter’s direction. Tran sued Affordable for damages arising from the disposition of Lien’s remains, contending Ritter lacked authority. The trial court concluded Affordable was immune from liability under Health & Safety Code § 711.002(i) and granted summary judgment. Section 711.002(i) provides immunity for funeral establishments when carrying out

the written directions of any person who represents that the person is entitled to control the disposition of a decedent’s remains. Ritter represented to Affordable that he was Lien’s common-law spouse and presented Lien’s written designation giving Ritter sole authority over her funeral arrangements. Interpreting the statute’s plain language, the court rejected Tran’s argument that Affordable had to investigate Ritter’s actual authority and affirmed. AL

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THIRD COURT OF APPEALS CRIMINAL UPDATE

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries that follow represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from July 2023. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of Jan. 3, 2024.

> JUR ISDICT ION—APPE AL ABLE ORDERS BY THE STATE: Appellate court lacked jurisdiction to review trial court order granting in part defendant’s motion in limine. State v. Nassour, No. 03-2300079-CR (Tex. App.—Austin July 13, 2023, pet. ref’d) (mem. op., not designated for publication). Nassour and his co-defendant

were indicted for tampering offenses. Nassour’s co-defendant filed a pretrial application for writ of habeas corpus and motions to dismiss, challenging the indictment and arguing that his prosecution was preempted by the federal Privacy Protection Act. He also filed a motion in limine requesting that the trial court issue an order prohibiting and precluding the State from arguing or introducing evidence regarding certain matters, including several matters pertaining to the defendants’ legal rights and duties regarding video footage that was the subject of the charged offenses. Nassour joined the motion. The trial court granted the motion in part, stating that the effect of its ruling was “exactly what a motion in limine does” and that it was “the proper remedy because it’s just saying we’re going to wait and see to some extent” whether the evidence was admissible. The trial court noted that it had not granted and was not granting the motions to dismiss the indictment. The State appealed from the trial court’s order, contending that it constituted a dismissal of the indictment or the granting of a motion to suppress. The appellate court concluded that it did not have jurisdiction. The court observed that the State is entitled to appeal an order in a criminal case only when authorized by law, such as “a trial court ruling that dismisses an indictment or grants a motion to suppress or an order that acts as the functional equivalent.” An order granting a motion in limine is not an appeal-

able order, although the label of the order is not controlling. Thus, whether the court had jurisdiction turned on whether the challenged order granted a motion to suppress or a motion in limine. The court concluded that the order was the latter, explaining that “although the defendants’ motion in limine used the same arguments from their previous motions to dismiss, it also made clear that the relief being sought was different.” They were seeking “a preliminary determination ... subject to reconsideration ... at any time” and asked that the State be directed not to mention or present evidence regarding certain matters and to approach the trial court for approval before introducing evidence or making arguments regarding those matters. Moreover, the trial court’s order “directed the State to approach the bench to seek a definitive ruling before presenting evidence or discussing the topics covered by the motion and informed the State that it may ask the trial court to reconsider its ruling.” Because the State was challenging a motion in limine, the court dismissed the State’s appeal. CUMULATION ORDERS— EFFECT OF PAROLE: Defendant’s sentences could not be stacked when he was sentenced for charged offense while on parole for prior offense.

Webb was convicted of the offense of aggravated robbery and sentenced to 50 years’ imprisonment, which the trial court ordered to begin after Webb finished serving his sentence from a prior conviction for aggravated robbery. On appeal, Webb argued that the stacking order should be deleted. The appellate court agreed. Article 42.08 of the Code of Criminal Procedure provides that if a defendant “has been convicted in two or more cases,” the trial court has the discretion to decide whether the punishments for “the second and subsequent convictions ... begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate” or “run concurrently with the other case or cases.” The court explained that a sentence “ceases to operate” when a defendant serves his sentence in full or makes parole, provided that his parole has not been revoked. In this case, the evidence showed that Webb was on parole for the prior offense when he was sentenced, and nothing in the record indicated that his parole had been revoked. Thus, the cumulation order was improper and the court deleted it. AL

Webb v. State, 03-22-00203-CR (Tex. App.—Austin July 28, 2023, no pet.) (mem. op., not designated for publication).

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Travis County Fees and Court Costs Updated for 2024 On Jan. 1, 2024, the Travis County Commissioners’ Court’s new schedule of fees to be charged for services rendered by the Travis County Sheriff’s Office and Travis County constables in 2024 went into effect. See Texas Local Gov’t Code §§ 118.131. The 2024 fees are as follows: Service of Process: • Citation (County and District Court): $85 • Citation (Small Claims and Justice Court): $85 • Citation (Probate, by posting): $85 • Subpoena (Civil): $85 • Summons (Civil): $85 • Forcible Detainer: $85 • Injunction: $120 • Turnover Order: $120 • Order of Sale: $240*‡ • Writ of Execution: $240*‡ • Writ of Possession: $175‡ • Writ of Attachment: $170‡ • Writ of Sequestration: $170‡ • Writ of Garnishment: $125‡ • Writ of Re-entry: $175‡ • Writ of Personal Property • Retrieval: $175‡ • Other Writs: $125‡ • Temporary Restraining Order: $120 • Protective Order (to be charged to respondent): $155 • Distress Warrant: $225 • Civil Show-Cause Order: $85 • Mental/Alcohol/Drug \ Commitment: $17 • Peace Bond: $17 • Posting Written Notice (each): $65 • Taking and Approving Bond: $40 • Executing a Deed: $40 • Executing a Bill of Sale: $40 • Criminal Record/Warrant Letter: $17 (†) The fees listed above apply to an unsuccessful attempt as well as successful service. (*) County commission due based on percent of monies collected up to the judgment amount is 10% of first $20,000, and 4% of amounts greater than $20,000. (‡) For writs and orders served which exceed two hours, an addition16

AUSTINLAWYER | FEBRUARY 2024

The Travis County Administration Building, where the county commissioners meet.

al fee of $60/hour/deputy is required to perform the service. Additionally, mileage will be added at the IRS business standard mileage rate for an officer to perform service and to return from performing that service. Other Sheriff/Constable Fees: • Issuance, renewal or reinstatement of Alarm Permit: Residential: $50.00 Commercial: $110.00 • Response to false alarm, if more than five false alarms have occurred within the preceding 12-month period: $75.00

• Sexually Oriented Businesses: Initial registration for exemption: $50.00 Renewal of exemption: $25.00 • Initial or renewal application for Sexually Oriented Business License: $500.00 • Initial or renewal application for Operator’s License: $50.00 • Issuance of duplicate registration or license: $15.00 Filing Fees On Jan. 1, 2024, filing fees increased to $80 for the following types of filings:

•Counterclaim •Cross-action •Intervention •Contempt Action •Interpleader •Motion for New Trial •Motion to Reinstate •Third-Party Action These filing fees apply to all civil cases except probate, guardianship, or mental-health cases in Travis County district courts, statutory county courts, and county courts. See Texas Local Gov’t Code §§ 135.101, 135.151. AL

Austin Bar Member Richard Pena Named 2024 NCBP Fellow

he National Conference of Bar Presidents (NCBP) has selected Richard Pena as the winner of its 2024 Fellows Award. This marks the first time a former Austin Bar president has won this distinguished award, and only the second time a bar president from Texas has won. (James Sales of the Houston Bar Association, who subsequently served as State Bar of Texas president, won in 2007.) The announcement from NCBP is quoted below: Richard has embodied excellence in the legal profession for over 30 years, made history as the first Hispanic and minority president of the Austin Bar Association and the State Bar of Texas, is a trailblazer in the Hispanic legal community, a trusted and invaluable mentor to many, and has consistently provided the organized bar with stellar leadership and service; to wit: Mr. Pena’s profound impact on the organized bar is undeniable and will continue far into the future. Mr. Pena was elected as president of the Austin Bar Association in 1990 and the State Bar of Texas in 1998 and successfully led both organizations. Following his tenures as president of the Austin Bar Association and the State Bar of Texas, Mr. Pena continued serving the legal community as president of the American Bar Foundation, com-

pleting multiple terms as a member of the American Bar Association House of Delegates, serving on multiple committees within the American Bar Association, and actively engaging with several other legal organizations. In 2000, Mr. Pena was elected to the National Conference of Bar Presidents’ Executive Council and remained on the council until 2003. Mr. Pena is an extraordinarily accomplished attorney. He is president and CEO at the Law Offices of Richard Pena in Austin, Texas. He is committed to ensuring the rule of law is available for all. An advocate for learning about the legal systems of other cultures, Mr. Pena has led numerous Texas delegations of lawyers to Turkey, South Africa, China, Tibet, Cuba, Vietnam, Cambodia, Egypt, India, Israel, and Brazil. Mr. Pena’s impact extends far beyond the organized bar. He tirelessly gives his time, serving as a mentor and inspiration to countless lawyers. He is invested in blazing a trail for Hispanic and minority attorneys and has received several honors, including the Spirit of Excellence Award from the ABA Commission on Racial and Ethnic Diversity in the Profession, recognition as a Trailblazer by the State Bar of Texas, and the Difference Makers Award from the ABA General Practice, Solo & Small Firm Division, among

others. Mr. Pena is a phenomenal attorney and bar leader who consistently enriches those around him and adds immeasurable value to the legal community. THEREFORE, be it resolved, on this 2nd day of February 2024, that the National Conference of Bar Presidents recognizes Richard Pena, by presenting him with the National Conference of Bar Presidents Fellows Award, for exemplifying all that this award was created to celebrate, showing a powerful dedication to the NCBP mission, and a continuing commitment to bar leaders nationwide. AL

Richard Pena, of the Law Offices of Richard Pena, has been named as the National Conference of Bar Presidents’ 2024 Fellow.

HBAA Endows St. Edward’s University Scholarship Fund The Hispanic Bar Association of Austin (HBAA) gave a $50,000 grant to St. Edward’s University to establish the HBAA Endowed Scholarship. The endowment will provide financial support to junior or senior students in the Pre-Law Advising Program. Students will need to demonstrate need for financial assistance, and preference is given to those who are the first in their families to go to college. HBAA members will serve as mentors to endowment recipients. HBAA first established a partnership with St. Edward’s in 2018, giving $50,000 to benefit Hispanic pre-law students over five years. Since then, 35 St. Edward’s students have received mentorship and financial assistance, and 19 are currently attending law school or graduate school, or working full-time in related professional fields. HBAA was founded in 1988 as the Capital Area Mexican-American Lawyers. Among its founders are Austin Bar members Thomas Esparza; Hon. Jim Coronado; and Richard Pena, former State Bar of Texas and Austin Bar president. AL

FEBRUARY 2024 | AUSTINLAWYER

22nd Annual Austin Adoption Day Sees 10 Families Grow Chief Justice Byrne

Judge Crump

Judge Jones

Justice Kelly

Judge Lyttle

Judge Mauzy

Judge Rodriguez

Judge Soifer

Justice Triana

Ten families welcomed their newest additions during the recent Adoption Day. The 10 cases were heard by nine local judges

Sign created by CASA of Travis County.

he Austin Bar co-sponsored the 22nd annual Austin Adoption Day on Nov. 9, 2023, where 10 families welcomed the children they adopted as official members of the family. Austin Adoption Day took place at the Travis County Civil and Family Courts Facility on Nov. 9. The cases were heard by the following judges: Justice Chari L. Kelly of the Third Court of Appeals (and current Austin Bar president); Chief Justice Darlene Byrne of the Third Court of Appeals; Justice Gisela Triana of the Third Court of Appeals; Judge Aurora Martinez Jones of the 126th Civil District Court; Judge Karin Crump of the 250th Civil District Court; Judge Danielle Deseta Lyttle of the 261st Civil District Court; Judge Jan Soifer of the 345th Civil District Court; Associate Court Judge Leigh Mathews Rodriguez; and Judge Catherine 18

AUSTINLAWYER | FEBRUARY 2024

Employees of CASA of Travis County dressed up as “Wizard of Oz” characters to celebrate the 22nd Annual Austin Adoption Day.

Mauzy of the 419th Civil District Court. The day was full of happy tears, love, laughter, and plenty of playful children running around the courtrooms filled with colorful stuffed animals. The Austin Bar’s Adoption Day Committee is chaired by member Denise Hyde. The Austin Bar’s Family Law Section served as a co-sponsor of the event. Other co-sponsors included the Department of Family and Protective Services, the Travis County Office of Child Representation, CASA of Travis County, Kendra Scott, Whitestone Jewelry, Amy’s Ice Cream, Dignity Memorial, Ballet Austin, and Cook-Walden. AL

Austin Bar President Chari L. Kelly presides over one of the 10 adoption cases during Austin Adoption Day.

Denise Hyde, chair of the Austin Bar Association’s Austin Adoption Day Committee, greets the attendees of the day’s first case held on November 9th.

The Denise Hyde Scholarship Fund Needs You! BY AMANDA ARRIAGA, AUSTIN BAR FOUNDATION CHAIR

ustin attorney Denise Hyde initiated the Adoption Day Committee for the Austin Bar Association and has been the chair of the committee since it began. While Adoption Day is a wonderful celebration for children who get adopted, the reality is that some children in the foster care system never reunite with their families or find new families, and instead “age out” of the system. These teens are often establishing the next educational and professional steps of their young adult lives without readily available support or financial resources from immediate family. In 2012, then-Judge (now Chief Justice) Darlene Byrne established the Denise Hyde Scholarship Fund to provide funding for post-high-school educational resources for those youth in the child welfare system who are ag-

ing out of the system. “Denise has tirelessly and gracefully led the Adoption Day festivities in Austin for many years and even more widely in the Hill Country,” Chief Justice Byrne said. “There is no one more deserving of having this scholarship fund named in her honor. She has truly changed the lives of many children and families for the better, continually pursuing forever families for children with her time, toil, and treasure. Let’s continue Denise’s mission of helping and empowering foster children by increasing this fund, so that it does the transformative good for children it was intended to do.” The Austin Bar Foundation is seeking additional funds for the Denise Hyde Scholarship. The scholarship will provide recipients with $1,000 for post-high-school educational program expenses.

Austin attorney Denise Hyde initiated the Austin Bar’s Adoption Day Committee and still serves as its chair.

This could include tuition, supplies, and incidentals, and could be for students attending any form of higher education, including technical and trade programs. Any youth who was part of a CPS court-ordered services case

or was in the conservatorship of the Department of Family and Protective Services will be eligible to apply. For more information on the Denise Hyde Scholarship, or to donate, please contact Amanda Arriaga at amanda@austinbar.org. AL

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Call for Nominations for the Austin Bar’s Board of Directors!

f you are interested in running for a position as a director or officer of the Austin Bar Association, please fill out the form located at austinbar.org and email it to DeLaine Ward at delaine@austinbar. org by Feb. 25. All candidates must be current attorneys and Austin Bar members in good standing. Officer positions are one-year terms; director positions are for two years. Nominees for the office of president-elect must have served at least two years on the board of directors prior to assuming office. The number of candidates to be nominated for each position shall be left to the discretion of a majority of the Nominating Committee. The Nominating Committee’s decision will be announced on or before March 15. Any qualified member not receiving the nomination of the committee may be included on the ballot by submitting a written petition signed by 75 members of the Austin Bar. Such petitions

must be submitted by April 5. Voting will be conducted via electronic ballot. If you have any questions about the nomination or election process, please contact DeLaine Ward at delaine@austinbar.org; 512-4720279 ext 104. Board Duties & Expectations Each board member is expected to actively support the Austin Bar’s mission, programs, and activities. The board usually meets nine times each year, typically on the last Wednesday of the month from 5:30 p.m. to approximately 6:30 p.m. Occasionally, alternative dates are selected or additional sessions held. Attendance at these meetings is expected and unexcused absences are grounds for removal. An absence is unexcused if not conveyed to and excused by the executive director prior to the meeting. In order to participate in board meetings, it is imperative that each board member attend the entire

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meeting. Failure to arrive by 5:45 p.m. or before the first action item is considered, whichever is earlier, constitutes an unexcused absence. Executive committee meetings usually take place on the Mondays prior to board meetings, from noon to approximately 1 p.m. Directors, section chairs, and affiliate representatives are welcome to attend executive committee meetings but are not required to do so. Each board member is expected to serve as (a) a member or chair of at least one Austin Bar committee; and (b) a liaison to his/her assigned Austin Bar sections. The president seeks board input when making these annual appointments. Each board member is expected to prepare for and participate in board and committee meetings. This includes being knowledgeable about related materials, being prepared to develop and/or articulate Austin Bar policy, asking substantive questions, and/or suggesting agenda items on significant member or professional issues. AL

NOMINATION DEADLINE FOR 2024-25 AUSTIN BAR BOARD OF DIRECTORS Nomination Form: www.austinbar.org Email to: delaine@austinbar.org

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A Message from VLS’ New President: Step Into Your Discomfort BY NEAL FALGOUST, PRESIDENT, VOLUNTEER LEGAL SERVICES OF CENTRAL TEXAS

first stepped foot into a Volunteer Legal Services (VLS) clinic more than a decade ago. I remember the long line of folks waiting outside in the summer heat at Webb Middle School and the handful of volunteers in the school cafeteria waiting to answer their questions. The task seemed impossible. There were so many people who needed help and so few of us to provide it. I was terrified that I wouldn’t be able to answer their questions or, worse, that I would give them the wrong advice. Now, more than 10 years later, I am stepping up as president of the board of directors for VLS. I began volunteering with VLS at the weekly legal clinics and the Capital Area AIDS Legal Program clinics. I joined the board a few years later as a representative of the LGBTQ+ Section of the Austin Bar. And this year, I will serve my term as president of the board of directors. At every step of my journey with VLS, I have experienced the feelings of imposter syndrome— those feelings that say, “You’re not good enough,” or “You’ll fail if you try this.” These are also the most frequent refrains I hear from attorneys who have never taken a VLS case or served an evening at the legal clinic. If you have ever had this feeling, I want you to know you are not alone, and I ask that you make 2024 the year to step into your discomfort and help lower the barriers to justice in our community. The past three years have been fraught with the pandemic and its side effects. We have become more isolated from each other and our community. VLS has weathered these effects with the support of our committed volunteers and donors—law firms and solo practitioners who have taken on eviction cases for our clients; our Sustainability Society donors, who provide the financial resources for our staff to help victims of

family violence; and clinic volunteers who help pro se clients fight predatory lenders. We could not address these community crises without their devoted support. As we look forward to 2024, I want to help VLS build upon its strong foundation to bring in new donors and new volunteers. Service to the community is at the

heart of VLS’ mission. We are not just providers of legal aid; we are partners in the pursuit of justice. Meeting this mission requires adaptability, creativity, and a genuine desire to make a positive impact. We must continue to bring in new supporters to ensure VLS continues as a vibrant part of our

community. If you know someone who has never donated or volunteered, please have them reach out to Lauren Wright at lwright@ vlsoct.org to make a donation or sign up to take a case. And if they are afraid they are not good enough, you can tell them the president of the VLS board of directors had the same feeling. AL

FEBRUARY 2024 | AUSTINLAWYER

Decriminalizing Mental Health in Travis County: Part 6 This is the sixth in a series of articles about the Travis County Forensic Mental Health Project.

he Travis County Forensic Mental Health Project delivered its recommendations to the Travis County Commissioners in March 2023.1 The goal of these recommendations is to provide solutions other than jail to address mental health and substance abuse disorders in the county. Recommendation #5 The Project’s fifth recommendation is for the county to establish a permanent counsel at first appearance program at Central Booking. “(We) believe it is a fundamental right of every individual to have appropriate legal counsel,” the document says. The recommendation is based on a 2022 pilot program funded by a $500,000 grant from the Texas A&M Public Policy Research Institute to the Travis County Sheriff’s Office (TCSO). TCSO partnered with the Capital Area Private Defender Service to implement the counsel at first appearance program to ensure counsel was present at first appearance for all people, primarily at magistrate court. “Anecdotal evidence from both the prosecuting and defense attorneys indicated improved outcomes for individuals when the program was in place, albeit very briefly,” the document says. The pilot program was shut down after only nine days due to staffing shortages and space limitations at TCSO. “(Defense attorneys) were able to lower charges from felonies to misdemeanors, obtain bail/ bond when an individual would have otherwise been remanded to wait in jail, and ensure safety for domestic violence charges,” the document says. The funding is still available, the document says, and the Project recommends reinstatement 22

AUSTINLAWYER | FEBRUARY 2024

of the one-year pilot program, during which time the county can evaluate how to finance the program in perpetuity. To address the spacing issue, the Project proposes two solutions: (1) Use $1.5 million approved by the county in January 2023 to renovate a space adjacent to Central Booking, and (2) Develop an alternative facility, such as the diversion center.2 The Project recommends a total of 23 full-time TCSO personnel to support the counsel at first appearance program, in addition to: • 1 full-time county attorney/ administrative assistant; • 2 full-time district attorneys; • 7.5 full-time employees from the Travis County Public Defender’s Office; • 2 full-time employees from the Capital Area Private Defender Service; and • An undetermined number of employees from the Mental Health Public Defender’s Office. “The county is already working with the sheriff’s office to identify ways to improve recruiting and retention (of TCSO personnel),” the document says. The total annual operating cost for the counsel at first appearance

program would be about $4 million, the document says. Other Gaps and Preliminary Solutions In addition to the five big recommendations, the Project also cites several other “gaps” and offers recommendations on how to address them. One is “insufficient acute inpatient care for individuals.” Most of the individuals who are arrested as a result of a mental health crisis do not have medical insurance, the document says. That means they can’t get treatment at private psychiatric facilities and are sent instead to state hospitals, which are severely understaffed and were so even before COVID-19. Additionally, private psychiatric facilities, such as Austin Oaks, have closed, and emergency bed units, such as 16 at Brackenridge, have been removed. Currently there are only about five psychiatric emergency beds in the Dell Seton Medical Center’s emergency department, the document says. “Many people who are indigent with a mental health disorder end up being detained by police for their behavior and ultimately land in jail awaiting alternatives,” the

The Travis County Forensic Mental Health Project recommends the county re-implement a counsel at first appearance program at Central Booking in the Travis County Sheriff’s Office. The county previously had a pilot program in 2022, but it was shut down after only nine days due to space limitations and staffing shortages.

document says. “With alternative facilities in the community other than jail or the emergency department, arrests could often be avoided altogether.” The Project recommends that Travis County partner with available psychiatric facilities to eliminate arrests and lengthy emergency stays. Another gap identified is “insufficient outpatient services of all types.” “With explosive growth, it is difficult to maintain community-based services at scale,” the document says. “Improving and expanding existing community-based outpatient services is necessary to prevent mental health disorder crises, provide needed services to the community, and assist in preventing recidivism by ensuring individuals released from jail can continue with their treatment.” To address this gap, the Project recommends expanding Integral

Care’s Expanded Mobile Crisis Outreach Team (EMCOT)’s fulltime staff from 47 to 88.5, at a cost of $10.5 million annually. “This would support Austin-Travis County EMS and APD, as well as calls fielded from other partners such as Travis County Sheriff’s Office, Pflugerville Police Department, and The University of Texas Police Department,” the document says. Another gap identified is an “unwieldy competency restoration process.” In 2022, the Mental Health Public Defender’s Office represented 180 individuals seeking competency restoration. Of those cases, none were successfully referred to a state hospital due to the current barriers to admission. In such cases, the individuals remain in jail while solutions are sought, leading to weeks or months of detainment, the document says. “Alternatives to referrals to the state hospitals require more outpatient or other types of and locations for competency restoration,” the document says. “Additionally, some individuals may be able to be processed through dismissing charges in concert with treatment to manage the behaviors that led to incarceration.” The project recommends the county implement a program similar to the Miami-Dade Forensic Alternative Center, a 90- to 120-day program for second- and third-degree felonies focusing on community reintegration while providing competency restoration services. “If an individual is referred and approved for this program, their charges are dismissed, and they are released back into the community upon effective treatment,” the document says. The program has “largely eliminated competency restoration for misdemeanors through charge dismissal and clinical support.” It has also led to 68 percent fewer bookings and 94 percent fewer jail days for participants as opposed to nonparticipants.3 The final gap noted by the Project is a lack of alternatives to jail or competency restoration programs for individuals with more complex disorders, such as intellectual/developmental disorders,

traumatic brain injuries, dementia, and Alzheimer’s. The Project makes a distinction between these individuals, which “are relatively uncommon in the total service demand,” and those who have “mental health conditions—specifically substance use,” though brain-health conditions and mental-health conditions can be co-occurring. These types of co-occurrent individuals’ needs are further complicated by criminal charges or histories, the document says, and alternatives to languishing in jail or participation in competency restoration programs, “though their condition may preclude

them from ever regaining competency status,” are few. One example of this gap is the SMART program, which only offers substance-abuse treatment. “The SMART program does not accept individuals with I/DD as they are unlikely to remain compliant with the program,” the document says. “Consequently, alternatives are needed.” AL

lWOT8EK7VSMr%2ForkqNjA%2FC esBehjIm06Y%3D. 2 See “Decriminalizing Mental Health in Travis 2 County: Part 4,” Austin Lawyer Nov. 2023. 3 https://utexas.app.box.com/s/6ytzxonrf75ahknn9r3owq82p8m0mh30.

FOOTNOTES

1 https://civicclerk.blob.core. windows.net/stream/TRAVISCOTX / 956f1347-2fce-43cb-b1ee-ba892d b89ae7.pdf?sv=2021-10-04&st=20 23-03-14T16%3A15%3A50Z&se =2024-03-14T16%3A20%3A 50Z&sr=b&sp=r&sig=BJ3KDFoP1r

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Veterans Legal Assistance Program (VLAP) Welcomes Attorney Volunteers in Any Practice Area

he Veterans Legal Assistance Program (VLAP) would like to thank Austin Bar member Dominic Castillo, an associate at Husch Blackwell, for his work at the Dec. 11, 2023 free legal advice clinic. Castillo’s practice at Husch Blackwell focuses on healthcare regulatory compliance. His clients include individual healthcare practitioners and large national hospital systems. But attorneys of any practice area are well-equipped to provide free legal advice to veterans at VLAP’s monthly clinics. The areas in which veterans most frequently need legal advice are: divorce, child support, child custody, consumer law, contracts, criminal law, wills, estate planning, probate, guardianship, hous-

ing, landlord/tenant disputes, and bankruptcy law. The best part is that the intake process has gone digital. No more filling out forms by hand! Keep an eye out for future VLAP clinics. VLAP would also like to thank these other volunteers: Wayne Cavalier, Michelle Hunter, Tracey Reyna, Stephanie Long, Sophia Palat, Kyle Ryman, Annie Melendez, Marissa Lara-Arebalo, Deepak Sabiki, Barbara Chapman, Xiangyun Li, and Thomas Mehaffy. VLAP’s important work is made possible by the Austin Bar Foundation, the Texas Veterans Commission, the Texas Bar Foundation, the Texas Access to Justice Foundation, and the Central Texas Community Foundation. AL

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UT Law Researching How to Reduce Invalid Drug Patents BY CHRIS ROBERTS, THE UNIVERSITY OF TEXAS SCHOOL OF LAW

ow to improve the process of pharmaceutical patent approvals is the focus of a new study by a researcher at The University of Texas School of Law. The result could potentially save consumers billions of dollars and increase access to medications. As pharmaceutical costs rise, many consumers may find themselves either unable to fill or forced to ration their prescriptions. So-called secondary patents— patents that protect peripheral features of a drug—are becoming more common. But the debate centers on whether secondary patents protect novel features and represent true innovation or if they provide little to no innovative benefit, simply delaying the production of generic alternatives and increasing drug prices unnecessarily. Currently, secondary drug patents can prolong the life of ex-

pired primary patents, preventing the generic market from creating affordable options that expand access to treatments for consumers, and harming the people who rely

UT Law Professor Melissa Wasserman is the co-principal investigator in a research study examining the process of pharmaceutical patent approvals.

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the patent approval process, saving consumers billions by giving patent examiners more time to review patent applications on drugs. “We estimate that the aggregate accelerated entry of generics stemming from patent examiners’ increased scrutiny would result in consumer savings of between $2.53 billion and $5.28 billion per year from lower prices and increased access to drugs,” said Melissa Wasserman, UT Law School’s Charles Tilford McCormick Professor of Law and co-principal investigator. “Patent examiners currently spend on average 19 hours reviewing a patent application, and many experts believe this is not enough time to do a good job.” Wasserman estimates that $32 million in administrative costs— associated with downstream litigation of invalid patents—can be saved through spending $20 million to give examiners 50 percent more time to review secondary drug patent applications. That approach would mean the Patent and Trademark Office would issue

fewer invalid secondary patents. Along with co-principal investigator Michael Frakes at Duke University School of Law, the investigators plan to extend their research to cover biologics—drugs made from proteins or living entities such as cells and tissues. The Food and Drug Administration (FDA) provides a mapping of patents to FDA-approved small-molecule drugs, but currently no such mapping exists for biologics. The NIH grant will enable the team to begin to understand how pharmaceutical companies protect biologics with patents. “How many patents does a company obtain, how long does patent exclusivity last on average for a biologic, and what types of patents do companies obtain? These are some of the questions we will be looking at,” Wasserman said. “If patent examiners are given more time to review patent applications, how many fewer invalid patents would the Patent Office issue, and would we expect to see earlier biosimilar entry?” AL

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Responsible Data Handling in the Age of AI BY MICHAEL WOLMAN, UT COMMUNICATIONS

o mark Data Privacy Week in January, two experts on the subject from The University of Texas’s ethical AI research team Good Systems were interviewed: Sharon Strover, former chair of the Good Systems Executive Team and professor in UT’s School of Journalism and Media, and Amy Kristin Sanders, associate professor in both the School Journalism and Media and the School of Law. How does our increasing reliance on technology and artificial intelligence impact individual privacy? Sanders: Unfortunately, many people are unaware of just how much data their devices collect as they are using them. Lengthy terms of service and privacy policies aren’t really helpful to the average user, so they just agree to whatever default terms are set. Here in the U.S., that almost always means collecting as much data as possible and then storing it for long periods of time. That stored information is ripe for data breaches, which we see happening more and more frequently. What considerations should be taken into account to ensure responsible data handling and use? Strover: One approach that doesn’t receive enough attention is simply ascertaining what data are really needed. At this point many companies, governmental units and other institutions are simply gathering a lot of data because they can. Responsible data handling should begin with figuring out what data are really needed, and then whether or not personal identifiers are necessary. In the U.S., our data policies have been driven by opting out. This means people have to actively choose to not be part of services or data gathering efforts. In the European Union, by comparison, opting in is the norm. 28

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Sanders: When I advise organizations about data handling, I encourage them to be thoughtful about the data they collect. It is important to think about why you need the data. Don’t just collect other people’s data because you can. Especially for non-commercial uses, I tend to preach data minimization: collect the smallest amount of data necessary. People also need to think about how they are transferring data. Most people don’t use VPNs; they transfer lots of sensitive information using apps on their phones —banking and financial data, medical data, etc. Many people send sensitive data via email without encrypting it. We all need to think about secure ways to share this information, and companies need to be incentivized to encourage their customers and clients to only share information securely. What trends are you seeing when

(L-R) UT School of Journalism and Media Professor Sharon Strover; and UT School of Journalism and Media and School of Law Associate Professor Amy Kristin Sanders. Both Strover and Sanders are part of UT’s ethical AI research team Good Systems.

it comes to how citizens view their privacy and what services they are willing (or not willing) to exchange their data for? Strover: One result of our investigations is that people are unaware of the many technologies in

the physical environment that are gathering data. We investigated the presence of cameras in several fairly routine governmental operations—including what the fire department does, what the library does, what the transportation unit

does—for the City of Austin and found that ordinary people don’t know about cameras’ presence in ordinary life. When we explicitly ask people about data gathering from such cameras, there is a certain resignation about it. Many people feel helpless, and some feel as if it is simply an exchange that they make for receiving certain services: give up your privacy and you can use this desirable service or application. Sanders: I teach classes on surveillance and privacy issues. My students are always alarmed once they know what data is being collected and how it is being used. But they also feel a general sense of inevitability. They say things like, “How am I supposed to stop using Google products?” or “Being on social media is part of my job.” I think many of us are concerned about the privacy and security of our data, but we also don’t feel like we have the power to fight Big Tech. This is where government regulation has to step in and level the playing field. How are state and local govern-

ments using emerging AI technologies to collect personal data or monitor citizens? Strover: State and local government policies around using AI are in flux right now. We found that about 22 cities in the U.S. had explicit policies for using surveillance technologies within city operations, and I believe that number is growing. Still, that’s a small number. State governments are also grappling with AI technologies. The first target appears to be how state entities are using AI within their own operations. Another evolving question has to do with state authority and control of data produced by AI apparatuses, and whether or not such data constitute public records. Sanders: The City of Austin just announced it was redeploying license plate scanners. Police say this will help them recover stolen cars given the recent wave of auto thefts, but I have real concerns about the ability to track individuals as they move around the city. I worry that many governments are being sold this technology by companies hungry for profits, and

Our innovation industries are motivated by being first in a given market. This has led to trampling over the issues of privacy. While I see a lot more people talking about ethical guidelines, I still don’t see enforceable actions in this country. The most responsive privacy protections at this point seem to be in very conventional legal instruments around liability. Sharon Strover they aren’t being properly briefed on the privacy concerns. In addition, few state and local governments have the staff expertise to develop policies and procedures that will ensure not only that they use these technologies legally and ethically, but also that they store information in ways that don’t jeopardize citizens’ privacy and safety.

What legislative actions could improve the governance of public records? Strover: An opt-in approach to the kinds of data that are subject to public records could be one consideration. While citizens deserve access to the data that the state is gathering about them, one does not necessarily want that data to be available to the entire

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world. Another helpful step might be having an expert commission or a group of people charged with deliberating around the types of data that should be released and when that data should be de-identified. Sanders: My research shows the very powerful ways in which AI can be used to improve access to public records. We have developed a tool that can conduct large-scale content analysis of court records to help determine whether the justice system is functioning fairly and efficiently. Similar technology can be used to redact private information from court records and other public records, making it possible to safely release far more government information to the public. How do you see the balance between innovation and privacy protection evolving? What role can ethical guidelines play in shaping this balance? Strover: Our innovation industries are motivated by being first in a given market. This has led to trampling over the issues of priva-

cy. While I see a lot more people talking about ethical guidelines, I still don’t see enforceable actions in this country. The most responsive privacy protections at this point seem to be in very conventional legal instruments around liability. Even this, however, represents evolving territory. Sanders: Right now, several major lawsuits are targeting prominent AI developers alleging the developers violated copyright law in training their tools with data protected by copyright, including photographs, news stories and literary works. It will be interesting to see how these lawsuits play out because I have heard some developers say their business is based on taking risks in spaces where they view the law as being “fuzzy.” If that is the mindset, then I fear ethical guidelines alone would be ineffective at protecting our interests in our privacy and intellectual property. How can policymakers strike a balance between fostering AI innovation and protecting individual privacy, and what

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are some key considerations in crafting effective policies? Strover: This is a really tricky question. A first step should be engaging the public more broadly and deeply around privacy practices and the sorts of benefits that people experience from AI-related technologies. I bring this up in part because we found that a lot of people do appreciate some of the security aspects of surveillance systems. People want to feel safe. However, what becomes of data after it is gathered, who has access to it, and who can reuse it are the sorts of questions that most people—the subjects of the surveillance—can’t answer. Sanders: The biggest concerns I’m hearing from folks I work with—media lawyers and content creators—have to do with how large language models are trained. Content creators have filed lawsuits alleging developers have used copyrighted material to train their models. Attorneys and other data privacy professionals are raising concerns about the data ingestion that occurs when users type queries into chatbots and other AI tools. If those tools are designed based on reinforcement learning, then anyone entering client information, trade secrets or other proprietary information as part of their prompts is putting their data at risk.

a high bar. There are different approaches around the world to how to protect privacy, and different approaches to the stakes that certain countries have in AI technologies. Some states actively use them, for example, to surveil citizens; others, such as the EU, have newly enacted legislation that establishes allowable data gathering and data privacy standards. I am not optimistic about a global standard at this point. Sanders: Right now, the U.S. is behind the curve in helping to establish standards for data protection and AI. The EU largely set the standard for data protection with its General Data Protection Regulation, and we’ve seen many countries around the world (except the U.S.) adopt similar comprehensive data protection laws. Similarly, the EU’s AI Act is the world’s first comprehensive AI law, and I suspect many countries will take a similar approach, once again allowing Europe to set the global standard. How do AI technologies such as facial recognition and large language models (LLMs) pose unique privacy challenges? What strategies or technical solutions can we employ to mitigate these challenges? Strover: Facial recognition technologies and LLMs are challenging on several levels. A lot of cities in the U.S. prohibit the use of facial recognition technologies by local government, and some try to regulate its use by local companies as well. One problem is knowing when cameras have facial recognition technology activated. For example, I know of

How can AI technologists collaborate with other stakeholders, including legal experts, policymakers, and ethicists, to establish global standards for digital data privacy in the age of AI? Strover: Global standards are

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some city cameras here in Austin that are capable of facial recognition, but the city has explicitly not used that capability. However, there is nothing preventing them from using that capability. Large language models are a little different but also represent problems of misrepresentation. Their training data predispose them toward biased representations textually and visually. It’s difficult to know what the training data are for given models, and of course some of the recent copyright challenges add another layer of problems to how these models operate. Sanders: I had my students ask Dall-E to generate images of a law professor. Nearly all the images generated were white males. This isn’t surprising if you know how these tools are trained. These biases have real-world consequences beyond just reinforcing existing stereotypes. Because facial recognition was largely trained on images of white faces, it is far less reliable at identifying Black and brown people. This has serious repercussions for law enforcement and other uses of the technology in our everyday lives. But they also pose real privacy challenges because often tools like facial recognition are offered as time-savers or conveniences. Delta recently rolled out facial recognition boarding. It should worry people that the government and commercial entities are storing and using their biometric data because it makes you easier to track and monitor. Even law-abiding citizens should be concerned about this. If the “good guys” can use this data to track you, then so can the “bad guys.” What do you see as the biggest challenges regarding data privacy in the coming year? Strover: I would love to see more attention to data privacy. We need some strong laws, and we need knowledgeable people to write them and to implement them. In the U.S., we’ve had a patchwork of privacy protections over the past century, and the lack of comprehensiveness and clearly spelled-out rights regarding peoples’ authority over their own information or information about themselves has been dis-

tressing and disempowering. Sanders: I agree. The U.S. still lacks a comprehensive data protection law, unlike many countries in the world. I’d say it is imperative that Congress take these issues seriously and pass legislation to protect U.S. residents and their data. In the meantime, states are trying, and struggling, to protect their residents by passing state-level legislation. AL

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