AYLA Member Spotlight: Kelly Combs

AYLA: Tell us a little bit about yourself and your law practice.

COMBS: I am originally from Odessa, Tex., and came to Austin for law school at UT. I am in my second year of practice at Cagle Pugh, a firm that primarily rep- resents homeowners’ associations with issues involved in the operation and governance of association-governed communities.

AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far?

COMBS: I am about to start my third year in AYLA, and my best experience was being involved in the Leadership Academy. From that experience, I was able to get to know other members of the local legal community, and Debbie Kelly has been instrumental in helping me get plugged into other areas of AYLA. I particularly enjoy the many health and wellness events that are put on throughout the year.

AYLA: What was your childhood dream job?

COMBS: As a child my dream wasn’t so much the type of job but where. I wanted to travel! In the two years between my B.A. and M.B.A., I lived in Morocco and France.

AYLA: What are some of the things you enjoy most about living in Austin?

COMBS: I really enjoy Austin’s ease of access to outdoor activities. It is so nice to go on a bike ride around Lady Bird Lake or jump into Barton Springs to unwind after a long day.

AYLA: What’s your best piece of advice for fellow young attorneys?

COMBS: Many tasks young associates are asked to do have been done before, so don’t reinvent the wheel. Figure out the issues and your knowledge gaps, then ask someone with more experience for direction. AL

>ADMINISTRATIVE LAW: Court reverses judgment on immunity grounds.

Texas Educ. Agency v. Devereux Tex. League City, No. 03-2200172-CV (Tex. App.—Austin May 10, 2023, no pet. h.) (mem. op.).

Devereux operated a nonpublic residential-placement facility for disabled students. After an investigation, TEA revoked Devereux’s approval for contracting. Devereux sued, claiming a violation of its due-process rights. The trial court denied TEA’s plea to the jurisdiction. The court of appeals noted that immunity bars only viable causes of action. The court rejected Devereux’s argument that it had a vested interest in TEA approval. A constitutionally protected property interest requires a legitimate claim of entitlement, not a mere unilateral expectation. The statute gives no right to approval. Thus, TEA’s immunity was not waived. The court also rejected Devereux’s ultra-vires claims. Commissioner has broad authority to approve, deny, or revoke a nonpublic residential-placement contract. Thus, official’s immunity was not waived. The court reversed and dismissed.

TRIAL PROCEDURE: Court rejects application of virtual representation doctrine.

Brown v. Freed, No. 03-21-005560CV (Tex. App.—Austin May 10, 2023, no pet. h.) (mem. op.).

Tenants sued landlords for failing to return their security deposit. After the trial court announced its ruling for tenants, but before signing the judgment, landlords’ property manager sought to intervene. The trial court denied the motion and manager appealed. Manager contended he had standing under the doctrine of virtual representation. The doctrine requires a nonparty to establish that he is bound by the judgment, is in privity of estate with a party, and has an identity of interest with a party. Manager contended he was bound by the judgment because, as landlords’ agent, he is potentially liable for landlords’ liability to tenants. The court of appeals concluded that manager and landlords were not adversaries at trial, a necessary element of collateral estoppel. Because landlords did not sue manager as a third-party defendant, landlords would have to independently show manager wrongfully withheld tenant’s security deposit in a subsequent suit. The court dismissed. AL ing while intoxicated and filed a motion to suppress the evidence. At the suppression hearing, the trial court heard evidence that, on the morning of his arrest, Williams’s neighbor called 911 and reported that she believed Williams had been drinking and driving. Officer John Bowman of the Lampasas Police Department was on patrol when dispatch provided him with the description of the vehicle and advised him that the driver was possibly intoxicated. Bowman found a vehicle “consistent with” the description given by dispatch that was parked in a nearby gas-station parking lot and saw that the vehicle’s brake lights were activated. Bowman pulled into the parking lot and positioned his car to block other vehicles from entering. feel free to leave when Bowman approached, did not feel that he could tell Bowman that he did not wish to speak with him, and did not feel that he could have backed up without hitting Bowman.

The following is a summary of a selected criminal opinion issued by the Third Court of Appeals from January 2023. The summary is an overview; please review the entire opinion. The subsequent history is current as of May 31, 2023.

SEARCH

AND SEIZURE – NATURE OF POLICE ENCOUN-

TER: Trial court did not abuse its discretion in denying DWI defendant’s motion to suppress evidence obtained during encounter with police.

Williams v. State, No. 03-2100029-CR (Tex. App.—Austin Jan. 27, 2023, no pet.) (mem. op., not designated for publication).

Williams was charged with driv-

When Bowman approached the vehicle and contacted Williams, he could smell a strong odor of alcohol coming from his person, observed that Williams’s speech was slow and slurred, and noticed that Williams seemed “disoriented or confused.” While Bowman was questioning Williams, a second officer, Lieutenant Charles Montgomery, arrived to assist with the investigation. After conducting field sobriety tests on Williams, the officers arrested him for driving while intoxicated.

Williams testified that he had not been drinking on the morning of his arrest, that his neighbor could not have seen him drinking, that he did not see her when he was driving, and that, although he had been drinking the night before, he felt that he was no longer intoxicated that morning. Williams also testified that he did not

He further testified that, when Bowman entered the lot, he had just gotten back into his truck and was preparing to back out when he saw the squad car in his rearview mirror. Montgomery testified initially that he believed Williams would have been able to leave the parking lot by reversing his truck, going around Bowman’s car, and exiting through the unblocked driveway of the parking lot. However, he later testified that he did not know if Williams would have been able to back up. In addition to the testimonies of Bowman, Montgomery, and Williams, a video recording of the stop was admitted into evidence. Following the hearing, the trial court denied Williams’s motion to suppress and later made findings of fact and conclusions of law. One of the issues that Williams raised on appeal was that his initial interaction with Bowman was an investigatory detention, and Bowman lacked reasonable suspicion to detain him.

The appellate court affirmed the denial of the motion to suppress. The opinion provides an excellent summary of the law on consensual encounters. The court concluded that the initial interaction between Bowman and Williams was consensual and did not rise to the level of a detention. The court observed that what constitutes a sufficient restraint on liberty to implicate the Fourth Amendment will vary depending on the circumstances. Here, Bowman parked his car in such a way as to block only one entrance to the parking lot, neither the car’s siren nor its overhead lights was activated, and the trial court found that it would have been possible for Williams to drive around Bowman’s car if he had chosen to do so.

Also, during their initial interaction, Bowman approached the driver’s side of Williams’s truck and spoke to him “in a friendly tone” through the window, which was already lowered, and Bowman “did not draw his service weapon, wield a flashlight, or make any commands.” Moreover, there was no evidence that Bowman physically touched Williams, ordered him to remove the keys from the ignition, or utilized the squad car’s spotlight or loudspeaker. Further, “Officer Bowman never told Williams that he was not free to leave, and Williams never attempted to do so.”

Finally, the court concluded that “the subjective beliefs of both the officers and Williams are irrelevant to our inquiry.” Thus, it was irrelevant that Williams did not feel free to leave and that the officers believed it might have been difficult for Williams to leave. AL involved tampering both prior to the initial sale of the vehicles and during post-sale recall and service campaigns. The manufacturers initially installed the illegal defeat-device software before importing the vehicles to the United States for sale.

The following is a summary of a selected opinion issued by the Supreme Court of Texas in May 2023. The summary is intended as an overview of selected aspects of the opinion only; please review the entire opinion.

PERSONAL JURISDICTION:

“Dieselgate” auto manufacturers subject to specific personal jurisdiction in Texas, despite contacts with Texas being undifferentiated from those with other states involved in nationwide scheme.

State v. Volkswagen Aktiengesellschaft, No. 21-0130 (Tex. May 5, 2023).

This consolidated interlocutory appeal arises out of the “Dieselgate” scandal, which involved the intentional installation and use of illegal “defeat devices” by certain German auto manufacturers into imported vehicles in order to avoid compliance with U.S. emissions standards. The vehicles were marketed as environmentally friendly “clean diesels,” but in fact the defeat devices would cause the vehicles to perform differently during emissions testing than during normal operation, when the vehicles’ emissions would be “substantially higher”— up to 40 times the legal limits.

The scheme was active from approximately 2006 to 2015, and

All of the vehicles in question were imported through an exclusive distributor, which had entered into detailed Importer Agreements with the manufacturers. Pursuant to the Importer Agreements, the manufacturers retained both direct and indirect control over post-sale recalls, warranty repairs, and other service work, such that the distributor was contractually required to deploy its network of local dealerships to complete recall and service campaigns in accordance with the manufacturers’ directions, and the manufacturers retained contractual control over the dealerships with regard to these campaigns. The dealerships were also required to use the manufacturers’ proprietary software distribution system in servicing the vehicles. Finally, the Importer Agreements established that the manufacturers had to pay for all costs associated with all warranty repairs and recall work.

After the vehicles in question had been sold, malfunctions in the defeat-device technology began to cause issues in certain vehicles, requiring expensive repairs that were covered under the manufacturers’ warranty. In response, the German manufacturers developed updates to the defeat-device software that were designed to prevent further damage, facilitate continued use of the defeat devices, and avoid the devices being discovered. The software updates were uploaded to servers in Germany, which then synchronized with the distributor’s and dealerships’ servers. The manufacturers then created fake recall campaigns and took advantage of regularly scheduled dealer services to ensure that the updates were automatically installed in all affected vehicles.

VW Germany previously pled guilty to federal criminal charges for violations of the Clean Air Act and agreed to pay a criminal fine of $2.8 billion. The German manufacturers also settled federal civil claims filed by the EPA, but no agreement was entered to bar further civil suits by state or local governments; instead, each state expressly reserved the ability to sue the manufacturers for damages. The manufacturers’ total liability from the federal claims is estimated to exceed $20 billion.

In this case, the State of Texas and several local governments sued the manufacturers for violations of state environmental laws. Summary judgment on the basis of preemption was granted in favor of the defendants on the pre-sale claims, but the post-sale recall claims survived. The manufacturers filed special appearances contesting personal jurisdiction, contending that there was no basis for specific personal jurisdiction because (1) all contacts with Texas were limited to the distributor and dealerships, and could not be imputed to the manufacturers; and (2) any U.S. contacts by the manufacturers were targeted at the country as a whole, and not Texas specifically.

The trial court denied the jurisdictional challenge, and the manufacturers appealed. A divided appellate court reversed and dismissed, finding that the defendants’ actions were directed towards the United States as a whole and not Texas specifically, and thus were insufficient to constitute purposeful availment of the privileges of conducting activities in Texas.

The plaintiffs appealed to the Texas Supreme Court, which framed the issue before it as “whether a foreign defendant can be subject to personal jurisdiction in this forum when its contacts in Texas are undifferentiated from its contacts with other states”— specifically, whether the relevant facts gave rise to Texas courts’ specific personal jurisdiction over the manufacturers based on the manufacturers’ intentional post-sale tampering with vehicles owned, operated, and serviced in Texas.

The Supreme Court found that the manufacturers had established minimum contacts with Texas by exercising their direct contractual control over the distributor and their direct and indirect control over the dealerships.

The Court also noted that the manufacturers’ control over the entire scheme, which was granted and exercised under the Importer Agreements, allowed them to “perpetrate a fraud on the State of Texas and its citizens under the guise of recall and service campaigns.” Noting that states have an interest in protecting against torts that take place within their jurisdiction, and that the U.S. Supreme Court has recognized state interests in protecting regulatory schemes, the Court found that “engaging the forum with the specific intent to take actions to thwart the enforcement of an applicatory scheme could not be more purposeful.”

As for the argument that a nationwide campaign wherein the contacts among states were undifferentiated in kind and quality could not form the basis for purposeful availment, the Court held that personal jurisdiction is a forum-specific inquiry which requires no consideration of behavior that may or may not have been directed elsewhere. As the Court explained, “[t]he contacts an entity forms with one jurisdiction do not negate its purposeful contacts with another.”

The Court held that the manufacturers were subject to specific personal jurisdiction in Texas; accordingly, it reversed the court of appeals’ judgment and remanded to the trial court for further proceedings. AL