Austin Lawyer May 2024

MAY 2024 | VOLUME 33, NUMBER 4

Austin Bar Recognizes Award Winners

The Austin Bar Association has announced the 2024 winners of the Joseph C. Parker Jr. Diversity Award, the Regina Rogoff Award, the Professionalism Award, and the Larry F. York Mentoring Award.

The winner of the Joseph C. Parker Jr. Diversity Award is Manuel Escobar, partner at McGinnis Lochridge.

The winner of the Professionalism Award is V. Blayre Pena.

The winner of the Larry F. York Mentoring Award is Judge Jan Soifer

The winner of the Regina Rogoff Award is Raymond Winter, inspector general for Texas Health and Human Services.

Joseph C. Parker Jr. Diversity Award: Manuel Escobar

The Joseph C. Parker Jr. Diversity Award is named in honor of Joseph C. Parker Jr., the first African American president of the Austin Bar Association. Blazing the trail for minority lawyers who followed in his footsteps, Parker has spent his life and work championing the equal, ethical, and fair treatment of all people, and raising awareness of the need to diversify our community. The award is presented to a firm or an individual who has led the way in bringing diversity to Austin’s legal community and who exemplifies all that Parker stands for.

Manuel Escobar counsels private companies and individuals

across multiple industries, working closely on transactional matters with business owners and senior management. He assists clients with business formation and ownership from entity selection to dissolution, as well in as a broad range of other transactional matters for both for-profit and nonprofit entities, including ownership structure, drafting formation and operating documents, and advising on corporate governance. Escobar has helped a variety of businesses and individuals form, wind down, and buy and sell businesses across Texas.

Escobar’s securities law practice includes working with private placement transactions involving small- and medium-sized companies, including review and qualification for state and federal securities exemptions as well as drafting offering memorandums and related subscription documents. Escobar has also assisted clients with numerous real estate transactions. His experience includes drafting contracts, deeds, deed covenants and restrictions, and easement agreements as well as reviewing

and negotiating small and large commercial leases.

Escobar has worked with clients ranging from individual entrepreneurs and small business owners to oil and gas companies and operators, groundwater producers, cooperative associations, hospitals and healthcare providers, real estate developers, property managers, landlords, restaurant owners, doctors, veterinarians, beverage manufacturers, and more.

Escobar counsels private companies and individuals across multiple industries, working closely on transactional matters with business owners and senior management. He assists clients with business formation and ownership from entity selection to dissolution, as well in as a broad range of other transactional matters for both for-profit and nonprofit entities, including ownership structure, drafting formation and operating documents, and advising on corporate governance. Escobar has helped a variety of businesses and individuals

V. Blayre Pena

Judge Jan Soifer

Manuel Escobar

Raymond Winter

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AU ST INL AW Y ER

NEWS & ANNOUNCEMENTS

Austin Bar/AYLA Boards of Directors Elections Elections will conclude on May 17. Attorneys and judges with paid memberships in either organization are eligible to vote. If you have not received a ballot, check your junk folder for an email from “BallotBox.” If you still cannot find a ballot, contact billy@austinbar.org.

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AUST INL AW Y ER

OFFICIAL PUBLICATION OF THE AUSTIN BAR ASSOCIATION

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

Austin Lawyer

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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.

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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.

These are extraordinary times. As lawyers and as guardians of the third branch of government, we have a unique duty to lead our nation in the protection of judges, the rule of law and American democracy. The time has come to rededicate ourselves to our obligations.”

This is the recent charge from American Bar Association (ABA) President Mary Smith, calling on each of us to affirmatively act to protect the rule of law.1 Her letter drew attention to an alarming trend of attacks on our courts, judges, and the legal system itself. The U.S. Marshals Service recently reported that serious threats against federal judges have doubled since 2021.2 These include threats of physical harm or death made not only to judges but to their families and staff. It is notable that the spike started after the 2020 presidential election, when our courts heard a series of highly politicized cases that polarized American society.

The Rule of Law Is Under Attack: What Are We Going

BY JUSTICE CHARI L. KELLY, THIRD COURT OF APPEALS

Of course, attacks on the judiciary include more than just threats of violence, and they target far more than just the federal judiciary. Even before this spike, we in Travis County are all too aware of the near deadly attack on our own Judge Julie Kocurek, which made national headlines.3 Further, we have all seen national and state leaders, as well as private citizens, make false statements and baseless accusations against judges for partisan and personal gain. We have even seen pressure tactics to attempt to change a judge’s ruling in a particular case. While criticism can be a natural part of the democratic process, we are still governed by the Texas Disciplinary Rules of Professional Conduct:

• Rule 3.05 Maintaining Impartiality of Tribunal: A lawyer shall not: seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;

• Rule 3.07 Trial Publicity: [A] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a

substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

• Rule 8.02 Judicial and Legal Officials: A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.

When the judiciary is threatened, judicial independence is threatened. And when judicial independence is threatened, so goes the rule of law. So, what are we going to do about it?

The ABA Standing Committee on the American Judicial System released a report, “Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary,”4 which urges lawyers to correct the record when judges are unfairly attacked. Its toolkit for response includes tips and methods for when, how, and whether to respond to these attacks. It advises to first consult with the judge who is the subject of the attack and respect his or her

wishes. If a response is warranted, the committee advises to respond in the same news cycle with a coherent message that can be easily repeated on many platforms. These platforms can include:

• Op-eds/editorials;

• Letters to the editor;

• Letters to the offending party;

• Social media posts; and

• News conferences.

To help the public more easily recognize misleading statements and unjust criticism, the committee also urges each of us to seek opportunities to educate the public about fundamental concepts such as:

• The rule of law, including separation of powers and judicial independence;

• The importance of preserving fair and impartial courts;

• The organization of the judicial system and basics of the legal process;

• The role of the judge and accountability through appeals and discipline; and

• Methods of judicial selection and qualifications that candidates for judicial office should possess.

New Members

The Austin Bar welcomes the following new members:

Jason Beall

Daniel Brey

Johanna Chavarria

Lauren DeClark

Allison Edwards

Chaudhry Hameed

Jasmine Isokpunwu

Danielle Jordan

Jackson Klug

Louis Lachowsky

Katharine Marvin

Sarah McGiffert

Megan Newman

Jacob Pons

William Read KUDOS

Congratulations to Matthew “Maff” Caponi, associate at the Kaplan Law Firm, who negotiated a $55,000 settlement for his client, Eli Winkelman, in a federal lawsuit against the City of Austin. Winkelman alleged Austin police used excessive force against her when, during the protest marches of May 2020, she attempted to film police arresting another protester.

Congratulations to Frank O. Carroll III, shareholder in Winstead’s Austin office. Carroll was included in the Super Lawyers “Up-and-Coming 100: 2024 Texas Rising Stars” Top List. Carroll is double-board-certified in civil trial law and property owners association law. His practice focuses on land use and real estate litigation. He represents developers, property owners’ associations, and nonprofit corporations in lawsuits before federal and state courts.

Congratulations to Noah Galton, partner in Jackson Walker’s Austin office. Galton was included in the Super Lawyers “Up-andComing 100: 2024 Texas Rising Stars” Top List. His practice focuses on condemnation/eminent domain and commercial litigation, including real estate, energy, governmental/sovereign immunity, and general business litigation. He has practiced in both state and federal courts and has appeared in dozens of administrative hearings.

Top List. Smith represents clients in litigation matters in state and federal courts. She also provides alternative dispute resolution services to clients. Prior to Lloyd Gosselink, Smith represented federal employees in discrimination complaints and appeals of adverse personnel actions before the Equal Employment Opportunity Commission and Merit Systems Protection Board. She has been named a Super Lawyers Rising Star since 2022.

Congratulations to Sarah Glaser, chair of Lloyd Gosselink’s Employment Law Practice Group. Glaser was included in the Super Lawyers “Up-and-Coming 100: 2024 Texas Rising Stars” Top List. Glaser practices employment law and litigation before federal and state courts, as well as administrative agencies, such as the U.S. Equal Employment Opportunity Commission, Texas Workforce Commission, and U.S. Department of Labor. Glaser has been named a Super Lawyers Rising Star since 2019.

Congratulations to Laura Ramos James, of Ramos James Law. James was included in the Super Lawyers “Up-and-Coming 100: 2024 Texas Rising Stars” Top List. James is a plaintiff’s personal injury lawyer. She has earned membership in America’s Top 100 High Stakes Litigators, a recognition given to attorneys who have successfully litigated a matter with at least $2 million in alleged damages at stake. She is also a life member of the Million Dollar Advocates Forum, as well as the Multi-Million Dollar Advocates Forum. These recognitions are reserved for trial lawyers who have won million- and multi-million-dollar verdicts and settlements, respectively.

Congratulations to Gabrielle Smith, principal at Lloyd Gosselink. Smith was included in the Super Lawyers “Up-and-Coming 100: 2024 Texas Rising Stars”

Congratulations to Ilana R. Tanner, managing partner of the Law Office of Ilana R. Tanner, who was included in Glaser was included in the Super Lawyers “Up-and-Coming 50: 2024 Women Texas Rising Stars” Top List. Tanner is board-certified in family law by the Texas Board of Legal Specialization. Tanner practices family law in Travis, Williamson, and Burnet counties. Her practice particularly focuses on defending families being investigated by Child Protective Services and preserving parental rights.

SUBMIT A BRIEF

Share your hiring announcements, promotions, and accolades with the Austin Bar community at no charge! All individuals named in the announcement must be Austin Bar members. Send announcement materials to Austin Lawyer managing editor Billy Huntsman at billy@austinbar.org.

TOP (from left): Caponi, Carroll, Galton, Glaser. BOTTOM (from left): James, Smith, Tanner.

AYLA GUEST COLUMN

In the month of March, not only do we get to witness the blooming of breathtaking wildflowers that are so unique to Texas, but we also have the opportunity to reflect on the Sixth Amendment right to counsel and the way it impacts different communities, especially those who are not citizens of the United States. I mention this because March commemorates two significant cases that revolve around the Sixth Amendment: Gideon v. Wainwright (1963)1 and Padilla v. Kentucky, 599 U.S. 356 (2010).2

The Gideon case, a turning point in the interpretation of the Sixth Amendment, established that the right to have the assistance of an attorney is a fundamental right essential to a fair trial.This was a significant departure from the previous understanding, which limited the application of the Sixth Amendment right to counsel to federal court trials.

Gideon was charged with allegedly entering a poolroom with the intent to commit a misdemeanor in Florida. Despite his request for an attorney, the court initially denied it, as Florida only provided appointed counsel for capital offenses.

After carefully analyzing the caselaw, the U.S. Supreme Court overruled Betts v. Brady, 3 which held that the Sixth Amendment applies only to trials in federal court.In Gideon, however,

BY NORA PICASSO UVALLE, CAPITAL AREA PRIVATE DEFENDER SERVICE

Gideon’s Promise and Padilla Advisals: Who Supports Criminal Defense Attorneys?

the court said that “any person brought into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.”4 In the United States, said the Supreme Court, states’ and the national constitutions have given great importance —from the beginning—to procedural and substantive safeguards to guarantee fair trials before impartial tribunals in which every person stands equal before the law. These safeguards can only be realized if everyone obtains a competent lawyer, regardless of their ability to pay.

In Texas, the right to counsel is established, among others, in the Texas Constitution (article 1, section 10) and the Texas Code of Criminal Procedure (article 1.051). The latter says that when individuals cannot afford legal representation, they are entitled to have an attorney appointed to represent them in any adversary judicial proceeding that may result in punishment by confinement. This provision outlines a timeline within which an attorney should be appointed, further protecting the individual’s right to a promptly appointed counsel.

In Padilla v. Kentucky, the U.S. Supreme Court had the opportunity to analyze the Sixth Amendment in the context of individuals who are not citizens of the United States.

Padilla, a 40-plus-year lawful permanent resident of the United States and Vietnam War veteran, was charged with transporting marijuana in his tractor-trailer in Kentucky. His attorney counseled him to accept a plea deal and said he “did not have to worry about

immigration status since he had been in the country so long.” Padilla relied on his attorney’s incorrect advice and accepted the plea deal. Padilla sought post-conviction relief and argued that he would have insisted on going to trial if he had not received incorrect advice.

In Padilla, the Supreme Court answered whether the Sixth Amendment required Padilla’s attorney to inform him that his guilty plea would ultimately lead to his removal from the United States. The court found that a “competent counsel” would have advised Padilla that his conviction would subject him to automatic deportation. This decision has had wide-ranging implications, setting a specific obligation for cases where an individual’s immigration status is at risk.

While immigration proceedings are civil “in nature,” the Supreme Court said that because the law has enmeshed criminal convictions and the penalty of deportation, it is hard to analyze them as completely separate matters. For many individuals, “de -

portation may be more important to the client than any potential jail sentence.”5 Furthermore, the Supreme Court acknowledged the existence of many professional norms that require criminal defense attorneys to counsel their clients on the risk of deportation.

Under Padilla, criminal defense attorneys must inform their clients about the potential risk of deportation associated with their plea.

Although this decision is a win for individual rights, it creates several challenges for counties (as they are in charge of appointing attorneys) and criminal defense attorneys. This is especially difficult for public defenders and appointed attorneys, because they may need access to certain resources in order to provide complete and accurate advice.

The Texas Court of Criminal Appeals has also rendered a decision on this matter. In the case of Ex parte Torres, 6 the court ruled that simply advising a client to consult with an immigration at-

continued on page 11

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torney and mentioning the possibility of deportation is insufficient. Instead, the court held that when the consequences of a guilty plea include automatic deportation, an attorney must provide accurate legal advice about the “truly clear” consequences, as required under Padilla Texas is divided into 254 counties. However, as of November 2023, only about 75 counties have established “indigent” defense organizations. Out of these, there are 29 public defender offices and eight managed assigned counsel offices.7 It’s important to note that around 10 of these organizations, which cover 21 counties (mostly the major cities, including Travis County), have immigration attorneys on staff. These attorneys ensure that criminal defense attorneys comply with the duties outlined in Gideon and Padilla

Specific initiatives, such as myPadilla,8 are working to bridge the gap and ensure that attorneys throughout Texas provide comprehensive and competent representation.

However, 61 years after Gideon and 14 years after Padilla, we are still working toward a system that supports criminal defense attorneys in providing quality representation for all. AL

ENDNOTES

1 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963).

2 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010).

3 Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252 (1942).

4 Gideon, 372 U.S. at 796.

5 Padilla, 559 U.S. at 1483.

6 Ex parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016)

7 Texas Indigent Defense Commision, https://www.tidc.texas.gov/.

8 myPadilla, mypadilla.com.

AYLA Honors Award Winners

The AYLA board of directors has recognized members of our community for three prestigious awards. These local winners will be submitted to the Texas Young Lawyers Association as nominees for the corresponding statewide awards.

The Mentor Award recognizes an attorney who has consistently demonstrated a commitment to mentoring young lawyers in the legal community. This year’s winner is Sam Denton. The Liberty Bell Award recog-

Senior District Judge

Stephen Yelenosky

nizes one outstanding non-lawyer in Texas who has made the most selfless contribution to his or her community to strengthen the effectiveness of the American system of justice by instilling better understanding and appreciation of the law. This year’s winner is Hollie Toups. The Outstanding Young Lawyer Award recognizes a young lawyer who has demonstrated professional proficiency, service to the profession, and service to the community. This year’s winner is Nora

Picasso Uvalle AL

(from left): Denton, Toups, Uvalle.

AYLA GUEST COLUMN

In most cases, “doing your job with your eyes closed” means you have an easy job. In another case, it literally means doing your job with your eyes closed, or blind, every day and doing it very well. From a sighted person’s perspective, a career as an attorney may not seem possible with limited or no sight. Of course, this is not the preferred method, but we play with the cards we are dealt. Thinking outside the box, combined with a positive attitude, plus a little technology, and voila! Anything is possible.

Let’s take a deep dive into the technology component: All iPhones, iPads, and Macs, along with all the apps, are accessible to anyone out of the box. This goes far beyond turning up the volume or enlarging the font. With voiceover enabled, these devices effortlessly vocalize texts, emails, PDFs, spreadsheets, and almost anything else. Integrated AI describes photos on Facebook, webpages, or in your camera roll as something like “three adult beverages on a wooden table surrounded by intoxicated people.” Dictation features convert speech to text faster than you can type with amazing accuracy and sometimes even wacky hilariousness.

And then there are the magical apps: SeeingAI reads print, deciphers handwriting, identifies products from barcodes, recog-

BY STEVE PURYEAR,

THE UNIVERSITY OF TEXAS AT AUSTIN GRADUATE; BUSINESS, REAL ESTATE AND HEALTHCARE INVESTOR; BEEP BASEBALL WORLD CHAMPION

Could You Do Your Job With Your Eyes Closed?

nize faces, identifies money, and navigates a room. Be My Eyes connects you with volunteers to assist you in the kitchen, matching clothes, putting on makeup, or reading mail, all through the app and your phone’s camera. Similarly, Aira Explorer connects you with someone to help navigate around the city, the subway, campus, the grocery store, and even find your rideshare. WayAround makes small dime-sized tags that can be affixed to clothing, seasonings, cleaning products, prescriptions, or almost anything else, and then their app will read whatever information you program to the tag. Many other apps will take a photo of a document, use optical character recognition to convert the image to text, and then the text-to-speech feature on the phone can read it. When in an Uber, you can always know where you are by memorizing all of the streets or simply opening Apple Maps to get your current location and change the settings to announce cross streets as you are approaching them.

For those not part of the Apple culture, there is software for you too, and your inferior equipment. Samsung does a decent job with accessibility on their phones and tablets, but the apps are hit-andmiss because neither they nor Google require much from the app developers. ZoomText is a pretty good product for the visually impaired on Windows-based computers to magnify the screen and read menus and text. JAWS (Job Access With Speech) goes a step further and allows the totally blind to easily use a Windows computer. Windows itself has accessibility features built-in, but not as tightly integrated as Apple.

Beyond phones, apps, and com-

puters, there are many familiar products on the market modified so anyone can use them. These include talking watches, clocks, calculators, scales, thermometers, and even a solar-powered talking Bible. A dedicated color detector will tell you the color of something like a shirt along with its shade and intensity. Another cool standalone device is the OrCam MyEye. About the size of a tube of lipstick, it easily attaches to the arm of your glasses and will instantly read mail, menus, documents, street signs, or anything else in its view. It can also identify currency, faces, products, and colors.

And there’s more: You are likely familiar with closed captioning for the hearing impaired, but how about “audio described” for the blind and visually impaired? Nearly every program on Netflix, AppleTV, Prime, and other services offer audio descriptions. Turning on this feature in settings adds an additional layer of audio which concisely describes the action in between the dialogue. Too much description is annoying and unnecessary, but quick tidbits along with imagination to fill in the rest

make it really easy to follow. So now that your mind is blown and you have come to the realization that a blind person armed with some technology may take your job sooner than AI, here are some ways you can keep them happy. Put stuff back where it belongs. Offer a shoulder or elbow for them to follow you, and don’t even think about grabbing both their shoulders and pushing them where you think they want to go. Don’t overthink it by changing verbs to something you wouldn’t normally use with others. It is still “watching” TV, “reading” a book, and going to “see” a movie. No, their cane or stick is not nun-chucks nor a pool cue. Yes, I’ve been asked that more than once. And finally, if you ever see a blind person at a bar, you should buy them a drink, not because they’re blind, but because they deserve it for all of the ridiculous things people say and ask. You might find one at Star Bar in Austin most Fridays. Just saying. If somehow this didn’t change your perspective on people and life, then take off the blinders and open your eyes to what is possible. AL

Ninth Annual Diversity Bar Mixer a Success

On Thursday, March 21, attorneys from various local bar associations converged at the Vince Young Steakhouse for AYLA’s ninth annual Diversity Bar Mixer.

Attorneys from AYLA, the Austin Bar LGBTQ+ Section, the Austin Asian American Bar Association, the Austin Black Lawyers Association, the Hispanic Bar Association of Austin, the South Asian Bar Association of Austin, the Austin Bar Association, and Travis County Women Lawyers Association enjoyed a nice evening.

Special thanks to Judge Karin Crump, Judge-Elect Sherine Thomas, and Boulette, Golden & Marin for sponsoring the food for this event! AL

partners:

associate attorneys:

Arielle Rosvall, Coleen Kinsler

(from left): Arthur Bryan, Elliott Beck, Eric Cuellar, and Jillian French.

(from left): Judge-Elect Sherine Thomas, 455th Civil District Judge Laurie Eiserloh, 261st Civil District Judge Daniella Deseta Lyttle, AYLA President Sarah Harp, 250th Civil District Judge Karin Crump, and 460th Criminal District Judge Selena Alvarenga.

(from left): AYLA President Sarah Harp, AYLA President-Elect Emily Morris, AYLA Treasurer Jenna Malsbary, and AYLA Secretary Gracie Wood Shepherd.

(from left): TYLA ABA YLD Rep. Armin Salek, TYLA President-Elect Candidate Alyson Martinez, TYLA Director Jenna Malsbary, TYLA President-Elect Candidate Michael Hanson, and Katie Fillmore.

Meet Attorney & Tech Entrepreneur Karl Seelbach

On Opening His Own Firm, Co-Founding Skribe.ai, and Advice for Starting New Businesses

Austin Lawyer recently sat down with Karl Seelbach, founding partner at Doyle & Seelbach, PLLC. Seelbach is also the co-founder of Skribe.ai, a testimony capture tool. We wanted to learn more about Seelbach: how he got into the law profession, what led him to opening his own firm, and how he manages his time as both an attorney and entrepreneur.

AL: What was your road to opening your own firm?

KS: My path was a pretty straight line. I was at South Texas for law school in Houston, and the first summer I spent the entire summer working at a really great plaintiff personal injury firm, Williams Bailey, which later became Williams Kherkher. And that was a lot of fun. They sent me on some wild goose chases helping investigate some of their asbestos cases. After the first year of law school, I was fortunate that I studied pretty hard and I made good grades. I ended up one of the top two or three students in the class, and that helped me with on-campus recruiting, to get interviews with some of the larger firms, which is ultimately how I got connected with Winstead’s Houston office. They hired me for my second summer of law school. So my path from there was very straight. I started at Winstead in the Houston office in 2006. I worked there for two years before transferring to Austin. I would always jokingly tell people that it was a promotion without a raise in pay. I enjoyed my time in the Houston office, but there’s just something about the Austin environment that was more appealing to me. I worked at Winstead in Austin from Christmas of 2008, made partner, and left in 2015 when I launched my own firm that May.

AL: What kind of work did you do at Winstead?

KS: I did a mixture. When I first started, the firm was reorganizing

some of their practice groups. As a first-year attorney, one of the partners told me, “You have to pick a practice group.” Well, how do I know which one to pick? I knew I wanted to do some type of litigation, but should I pick commercial litigation or construction litigation? I also like appellate work, should I join the appellate people? I ultimately joined the commercial litigation section, but still had the opportunity to do some appellate work with a couple of the judges who were working at Winstead at the time. [Former Texas Supreme Court] Chief Justice John Hill was at Winstead at the time, [former Eleventh District Court of Appeals Chief Justice] Bud Arnot was there at the time, [former Texas Supreme Court Associate Justice Craig T.] Enoch was there when I transferred to the Austin office, and I learned a lot. Most of my work before I moved to Austin was in commercial litigation, finance and banking litigation, and a little bit of construction litigation. When I moved to Austin, I had the opportunity to do some personal injury defense work, and that’s where I really found my niche. I found that is what I enjoy doing the most: taking depositions; doing site inspections; trying to figure out what happened, not by sifting through rooms of documents, but by actually getting out there.

AL: So in 2015, you branched out and started Doyle & Seelbach. Do you only do personal injury work, or are there other areas you practice now?

KS: We do other areas, as well. About 70 to 80 percent of our practice is personal injury defense, and the other 20 to 30 percent is real estate litigation, commercial litigation, and one of our partners has a specialized practice involving the Randolph Sheppard Act. We also do some collections work for some commercial real estate clients of ours, helping them pursue past-due rents, breach-of-lease

disputes. I’m interested in diversifying. We left Winstead with one client. It did not go as planned. It was a very good career and life lesson on what not to do when you leave a law firm. I told myself, “I’m never doing that to myself again. I’m going to make sure that I’m diversified, that I’ve got a lot of clients and different practice areas.” We’ve got over 30 clients now, institutional clients that send us repeat business across several practice areas. It helps me sleep at night.

AL: When did the idea for Skribe.ai first come to you?

KS: So I’m a tech guy. I tend to be an early adopter. When I first joined Winstead, I was trying to convince my secretary, who was

probably in her 50s or 60s (and I was 24), that we needed to digitize the files in the practice management system the firm had. She was resistant at first, but we compromised. I said, “Let’s do it for the next new case we get. I promise, it’ll be great.” She didn’t believe me then, but eventually she did. She realized it was super convenient to have everything paperless. My first software venture was eDepo, an iPad app. Back then, I was always busy taking depositions, and I thought it would be cool if, after the deposition, all of it got delivered to me in an app with the video transcribed and I could create video clips and search the transcripts. That idea led me to putting my money where my mouth was and launching eDepo,

which had ups and downs, successes and failures. I learned a lot before I ultimately closed it to focus on launching the law firm with Trek [Doyle].

But I still had this passion for technology and this idea that there was a better way to capture testimony using software. In today’s world, we don’t need a human to write or type everything that’s said; we can record it and transcribe it with software. If it needs to be cleaned up, we can have a professional transcriptionist do that after the fact. By doing it that way, we can speed up the entire process and reduce the cost.

My cofounder, Tom Irby, owned a court reporting agency that he sold to Veritext years ago. He saw the same problem from a different angle. I’m seeing the problem from the attorney’s side: Why does it take so long and why is it so expensive? Tom realized there was a shortage of stenographers. So we have more litigation, more depositions and hearings with less supply of stenographers.

Once everything moved online during COVID and the vast majority of depositions were taking place over Zoom, we decided it was time to launch this modern alternative to traditional court reporting and testimony capture.

AL: What are some of the stigmas associated with testimony transcription software that you’ve experienced when pitching to potential clients?

KS: I wouldn’t call it stigma so much as lack of awareness. There’s two pieces to it: One is that a lot of attorneys just don’t know that non-stenographic depositions are allowed by the federal rules, the Texas rules, and most state rules. They don’t know because they’ve never had a reason to look and never realized there was an alternative. The other is, when it comes to other dictation software that you’ve used, like Siri, you get frustrated at the quality, the misheard or mis-transcribed words. The quality of the transcription of Skribe and other testimony capture tools is so good and probably within two to five years is going to surpass human accuracy. Yes, they’ve been saying that for years, but that was before we had the benefit of these large language models. We’re able

to replicate the entire court reporting process using software: It records the testimony and uses automated speech recognition (ACR) to turn those sounds into words. Before we had these large language models, where this kind of software would fall off in quality is in contextualizing the words the ACR created. It would translate the sounds phonetically, instead of in the context of what was being talked about, which would lead to mistakes like “there,” “their,” and “they’re”; “too,” “to,” and “two.”

Now, using these large language models, the software can contextualize the words, and that has just sent the quality of the transcription through the roof.

And the transcript is synced with the video recording, so if there’s ever a question about what was said, you can just click to that part of the recording. You get a non-stenographic deposition whether you do it yourself, use some other non-stenographic party, or use Skribe. With Skribe, you get the result within an hour or two. You can jump right back in, see the video, create clips, share those clips. It really does speed things up. We also deliver professionally proofread transcripts that look just like the court reporter’s transcripts within three to five business days at no extra charge.

Really, testimony capture is

low-hanging fruit for modern AI software.

AL: Talk about the history of admissibility of non-stenographic depositions in federal and Texas courts.

KS: The federal rules were changed in 1993 to allow for non-stenographic depositions, meaning depositions were not required to be recorded only by stenographers. Federal Rule of Civil Procedure 30(b)(3) says, “… testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party

continued on page 16

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Jeff Lilly Partner, Client Services

may arrange to transcribe a deposition.” In Texas, Rules of Civil Procedure 199(b) and (c) allow for non-stenographic depositions by telephone or remote electronic means. And Rule 203.6 says, “A non-stenographic recording of an oral deposition, or a written transcription of all or part of such a recording, may be used to the same extent as a deposition taken by stenographic means.” Nowhere in the rules does it say the transcript has to be typed or come from a

court reporter. In the comments to the 1993 federal amendment, there’s a section that explains the rules require that a transcript of a non-stenographic deposition be provided to other parties in advance of a trial for verification, “an obvious concern since counsel often utilize their own personnel to prepare transcripts from audio or video tapes.1” So the federal rules, when they were being amended in 1993, envisioned transcripts being prepared by an attorney’s own staff, which was OK so long as the other side had an opportu-

nity to review it before trial. Which makes sense because, if you have a non-stenographic deposition, that means the video is the official record and the transcript is just a reference of your video record. Skribe also provides a notary to swear in witnesses, and the notary is also there to provide light technical support. We also have redundancies, backup recordings for both the audio and video.

We’re not anti-stenography or anti-court reporting. We just have heard from lawyers in all areas of practice, particularly family law

PARALEGAL TRAINING FROM UT AUSTIN

and personal injury, that the fees have gotten so outrageous that they can’t afford to take depositions. And those kinds of costs trickle down to the client.

The American Bar Association had some resolutions that they passed about a year or two ago. One is Resolution 112, and it talks about how attorneys should be having conversations with their clients about not only using AI, but they should have conversations with their clients if they choose not to use AI and whether you, as an attorney, could have substantially reduced the amount of time and legal fees associated with performing a particular task. And I think we’re going to be reaching the point, the next year or two, that clients and courts in general are going to start questioning attorney fees if they’re too out of whack. If you could have accomplished the task in two hours using this tool, how can you say 20 hours is reasonable because you chose not to use a more efficient path?

AL: How do you manage your time as both a full-time attorney with your own firm and also as an entrepreneur with Skribe?

KS: I am not the CEO of Skribe; my co-founder, Tom Irby, is. I’m more the spokesman. I help with some of the strategic planning and fundraising, pitching, and media presentations. But the vast majority of my time goes to my law firm.

AL: What advice would you give to other lawyers who may have their own law firms or are also interested in starting their own businesses, whether within or outside the law?

KS: I would say you don’t want to have any regrets, so take the swing. And don’t be afraid to ask for help. You’d be surprised how many entrepreneurs are willing to help if you just ask. AL

ENDNOTES

1 Federal Rule of Civil Procedure 26, Notes of Advisory Committee on Rules—1993 Amendment, Paragraph (3), Subparagraph (B).

If you have a story you think would benefit the members of the Austin Bar, please reach out to Communications Director Billy Huntsman at billy@austinbar.org.

Jason LaFond is a board-certified appellate lawyer with significant experience in the Fifth Circuit. He is a Senior Counsel at

The following are summaries of selected civil opinions issued by the Fifth Circuit in March 2024. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

>CLASS ACTIONS: Class Action Fairness Act’s local controversy exception to federal jurisdiction requires that all plaintiffs sustain their principal injuries in the forum state and nowhere else.

Cheapside Mins., Ltd. v. Devon Energy Prod. Co., L.P., 94 F.4th

492 (5th Cir. 2024).

The Class Action Fairness Act (CAFA) expanded federal subject-matter jurisdiction over many large class-action lawsuits and mass actions so long as there exists minimal diversity between the plaintiffs and defendants and the amount in controversy exceeds $5 million.

CAFA offers a handful of statutory exceptions, including the local controversy exception. That exception mandates that a federal district court decline to exercise jurisdiction when several requirements are met, including that “principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed.”

More than 200 plaintiffs sued Devon Energy Production Company in Texas state court, alleging that Devon had underpaid them in excess of $100 million in oiland-gas royalties based on leases concerning lands in Dewitt County, Texas. Most plaintiffs reside in Texas, but some do not.

Relying on CAFA, Devon removed. Plaintiffs moved to remand under the local controversy exception. The district court granted plaintiffs’ motion and Devon appealed. The Fifth Circuit reversed.

The merits turned on two ques -

tions: (1) Where did the plaintiffs’ “principal injuries” occur, and (2) if some principal injuries occurred outside Texas, would that preclude the local controversy exception?

The court first agreed with Devon that plaintiffs’ injuries occurred where plaintiffs reside.

The court rejected plaintiffs’ argument that all injuries necessarily occurred in Dewitt County since that is where the leases specified payment. The court concluded that accrued royalties are personal property under Texas law and reasoned that the economic injuries plaintiffs alleged are most directly felt where the injured person resides.

The court next agreed with Devon that the local controversy exception requires that all plaintiffs sustain their principal injuries in the forum state and nowhere else.

The court rejected plaintiffs’ argument that “principal” means “most.” Instead, the court interpreted “principal” to mean “most important.” And the court found that the “principal injuries” must be to the entire class, which means a district court may not remand when some plaintiffs sustained the principal injuries outside of the forum state.

Mott bought the pair’s tickets as a surprise gift for Jackson’s birthday. Jackson’s seat was next to the stage. A pyrotechnics blast at the beginning of the performance allegedly caused Jackson to lose most of the hearing in his left ear. He sued WWE in Texas state court, alleging that WWE’s negligence caused his hearing loss. WWE removed to federal court and moved to compel arbitration.

Mott’s purchase and download of the WrestleMania tickets came with repeated notifications that use of the tickets to enter AT&T Stadium constituted consent to arbitrate.

As a result, the district court compelled arbitration. Jackson appealed and the Fifth Circuit affirmed.

On appeal, Jackson argued that the arbitration agreement was not enforceable against him because Mott could not agree on Jackson’s behalf to arbitrate. Mott, not Jackson, purchased, downloaded, held, and presented the tickets for entry.

The court found additional support from other parts of CAFA which—unlike the local controversy exception—enumerated when fewer than all plaintiffs must meet certain requirements, concluding that Congress’s choice to omit such language from the local controversy exception showed that the entire class must meet the exception’s requirements.

ARBITRATION:

An individual who permits a third party to present a ticket for admittance to an event on his behalf is bound by the arbitration clause governing the use of that ticket.

Jackson v. World Wrestling Entertainment, Inc., 95 F.4th 390 (5th Cir. 2024).

In April 2022, WrestleMania 38, a WWE event, took place at AT&T Stadium in Arlington, Tex. In attendance were Marvin Jackson and his nephew, Ashton Mott.

The court disagreed. Under Texas law, nonparties may be bound to an arbitration clause when the rules of law or equity would bind them to the contract generally. Thus, a nonparty may be bound to arbitrate through agency principles. The court held that Mott agreed on Jackson’s behalf to arbitrate as Jackson’s agent.

The court explained that while Mott was not acting subject to Jackson’s authorization or control when he bought the tickets as a surprise gift, Mott did act as Jackson’s agent when Jackson allowed Mott to present the ticket on his behalf to enter the stadium.

The court reasoned that, as accepting the arbitration agreement was a required condition for Jackson to enter the event, accepting the agreement was well within Mott’s implied authority as Jackson’s agent to gain his entry into the stadium. AL

Yetter Coleman, LLP.

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 in March 2024. The summaries are overviews of particular aspects of the opinions; please review the entire opinions. Subsequent histories are current as of April 9, 2024.

>GOVERNMENTAL IMMUNITY:

Court holds agency is immune from takings claim.

Texas State Library & Archives Comm’n v. Westmoreland, No. 03-22-00276-CV (Tex. App.— Austin Mar. 22, 2024, no pet. h.).

Commission sued Westmoreland to recover a Republic of Texas-era letter, contending it was a state record. Westmoreland counterclaimed, alleging an unconsti-

tutional taking. The trial court denied commission’s plea to the jurisdiction. The court of appeals observed that immunity does not shield the state from an unconstitutional taking of property. But here, commission had only asserted a claim of ownership; it had not attempted to take possession. Thus, there was no basis for a takings claim. If the trial court determined the letter to be a state record, then it is the state’s property and no unlawful taking occurs. Accordingly, the court held that the trial court lacked jurisdiction over the takings counterclaim and reversed and rendered.

REAL PROPERTY:

Court affirms express easement interpretation but reverses appellate-fee award.

Uptown Cars, Inc. v. Newcastle Mgmt., No. 03-22-00422-CV (Tex. App.—Austin Mar. 22, 2024, no pet. h.) (mem. op.).

Uptown claimed its easement allowed construction of a road and boat dock on neighbor’s property. The trial court granted summary judgment that the easement only allowed Uptown ingress and egress to the water and awarded trial and appellate fees. The court of appeals agreed with the trial court that the express terms of the easement did not grant a right of construction. The court further rejected Uptown’s prescriptive-easement claim, noting that there was no evidence of Uptown’s continuous use of neighbor’s property. The court concluded the evidence

of trial attorney’s fees complied with Rohrmoos1 but reversed the appellate-fee award for failure to comply with Yowell 2 The court affirmed in part and reversed and remanded for a redetermination of appellate fees.

TRIAL PROCEDURE:

Court reverses temporary injunction for lack of specificity.

Whinstone US Inc. v. Rhodium 30MS, LLC, No. 03-23-00853-CV (Tex. App.—Austin Mar. 27, 2024, no pet. h.).

Whinstone contracted to provide electricity to Rhodium. After disputes arose, Whinstone sued, locked Rhodium out, and cut off the power. Rhodium sought a temporary injunction to require Whinstone to reinstate access to the property and restore power. The trial court’s injunction commanded Whinstone to restore and maintain the status quo in its contract with Rhodium, including access to the property and electricity. The court of appeals noted that TRCP 683 requires injunctions to be clear, specific, and unambiguous. The parties had signed multiple contracts and disputed their contractual obligations, yet the injunction did not refer to any particular contract. The injunction required reference to multiple documents to determine Whinstone’s required conduct. Accordingly, the injunction did not meet Rule 683. The court reversed and rendered judgment dissolving the injunction.

ADMINISTRATIVE LAW:

Charter school did not waive immunity for breach-of-contract claim.

TGP Public Schools, Inc. v. Powell Law Group, LLP, No. 0322-00200-CV (Tex. App.—Austin Mar. 29, 2024, no pet. h.) (mem. op.).

Law firm sued charter school for failure to pay outstanding invoices. The trial court denied school’s plea to the jurisdiction. According to the court of appeals, there is a limited waiver of immunity for charter schools’ contract liability. The dispute was whether firm’s fee agreement was properly executed. To be properly executed, either school’s charter must authorize a specific representative to execute a contract or school’s board must approve the contract. Three months after school’s representative signed firm’s fee agreement, board minutes showed approval of “legal representation.” Other evidence indicated that school was in the process of hiring a new law firm when the board minutes indicated approval. The court concluded no evidence showed board’s approval of firm’s contract and reversed and rendered. The dissent concluded a factfinder could infer from the board-minute entries that firm’s contract had been approved. AL

FOOTNOTES

1 See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 (Tex. 2019).

2 See Yowell v. Granite Operating Co., 630 S.W.3d 566 (Tex. App. 2021).

The following are summaries of selected criminal opinions issued by the Third Court of Appeals in October 2023. The summaries are overviews of particular aspects of the opinions; please review the entire opinions. Subsequent histories are current as of April 1, 2024.

>BURDEN OF PROOF – DUE DILIGENCE:

Trial court did not abuse its discretion by prohibiting defense counsel from questioning grand jury foreman on the burden of proof for grand juries.

Gonzalez v. State, No. 03-2200287-CR (Tex. App.—Austin Oct. 27, 2023, no pet.) (mem. op., not designated for publication).

Gonzalez was convicted of aggravated assault with a deadly weapon. At trial, the State called the foreman of the grand jury, who testified that the officers who presented evidence to the grand jury were uncertain of the manner and means by which the victim’s injuries were caused and that the indictment’s language reflected this uncertainty. Defense counsel attempted to question the foreman on the burden of proof required for obtaining an indictment. The State objected to that line of questioning, and the trial court sustained the objection. On appeal, Gonzalez argued that the questioning should have been allowed because, in his view, “when an indictment alleges that the object used to inflict injury on a complainant is unknown, the State must prove both that the object was unknown to the grand jury and that the grand jury exercised due diligence to ascertain its nature.”

This was known as the due-diligence rule, which provided that if the State failed to meet its burden, a fatal variance arose between the pleading and proof, requiring reversal. The appellate court rejected this argument, observing that the due-diligence rule was no longer the law, and that the State was not required to prove non-essential elements of the offense, such as the kind of weapon that was used.

SUFFICIENCY OF

CHARGING INSTRUMENT – MURDER: Indictment and subsequent disclosures by State provided sufficient notice to defendant.

Chagoya-Williams v. State, No. 03-

“Information is power, the not knowing is devastating.”

22-00309-CR (Tex. App.—Austin Oct. 19, 2023, pet. ref’d) (mem. op., not designated for publication).

Chagoya-Williams and her husband were each charged with capital murder for the death of their infant son. The indictment for Chagoya-Williams alleged that she “intentionally and knowingly cause[d] the death of [her infant son], by compressing or squeezing[.]”

Chagoya-Williams filed a motion to quash the indictment, arguing that it did not provide her with sufficient notice of (1) the alleged manner and means of committing the offense or (2) how she was a party to the offense. The district court denied the motion, and the appellate court affirmed.

Regarding the manner and means, the court concluded that “even if the indictment did not provide sufficient information concerning the ‘compressing or squeezing,’ the State’s theory was identified through subsequent disclosures,” including trial transcripts from the termination proceeding in which Chagoya-Williams’s parental rights to another child had been terminated. The trial court explained in its disclosure order that “[t]he facts and circumstances” related to the termination proceeding were “intricately linked to the facts and circumstances” of the criminal charges. Also, Chagoya-Williams filed a motion for expert assistance, acknowledging that her attorneys were “intimately familiar with the strategy used by the State in the associated” termination proceeding, including the state’s reliance “on pictures showing bruising and fractures to the

young children to substantiate its claim that the fractures could only have been caused by either blunt force trauma or compression of the chest area to suffocate the deceased child.” Additionally, Chagoya-Williams had obtained transcripts of her husband’s trial, at which the State’s theory was that the infant “was killed by his chest being compressed to where he could no longer get oxygen to his brain and that the compression was caused by someone wrapping their hands around his chest and squeezing hard.” Chagoya-Williams had “access to full discovery,” including the offense reports and medical records describing how the infant had died. The court concluded “that the indictment and the additional information disclosed by the State provided Chagoya-Williams with notice that was specific enough to allow her to investigate the allegations against her and establish a defense.”

Regarding Chagoya-Williams’s claim that the indictment failed to provide her with notice “regarding an allegation or description of [her] conduct as a party,” the court observed that “the law of parties need not be pled in the indictment” because “the facts which make a person criminally responsible for the conduct of another are evidentiary” in nature. Thus, a “party to an offense may be charged with the offense without alleging the facts which make the defendant a party.” Additionally, the court concluded that “the indictment and other disclosures” provided her with the constitutionally required notice of her possible party status. AL

Divorce and Child Custody Surveillance ~ Undercover Background Checks Computer & Phone Forensics Corporate Investigations Expert Testimony and more

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.

Anji Maddox

The following are summaries of selected opinions issued by the Texas Supreme Court in March 2024. These summaries are prepared by court staff as a courtesy and are not a substitute for the actual opinions. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

GOVERNMENTAL IMMUNITY:

Governmental entity contract deemed properly executed until entity provides notice of failure to submit disclosure of interested parties.

Legacy Hutto v. City of Hutto, No. 22-0973, ___ S.W.3d ___ (Tex. Mar. 15, 2024) (per curiam) . This case concerns statutory requirements for a contract between a governmental entity and a business entity.

Legacy Hutto sued the City for its failure to pay for work Legacy had performed under a contract.

Section 2252.908(d) of the Government Code prohibits a governmental entity from entering into certain contracts with a business entity unless the business entity submits a disclosure of interested parties to the governmental entity when the contract is signed. Legacy had never submitted the disclosure. The City argued that the lack of disclosure meant that the contract was not “properly executed,” as required by Chapter 271 of the Local Government Code, which waives a governmental en-

tity’s immunity to suit for breach of contract. The City thus argued that its immunity to suit was not waived for Legacy’s claim. The City filed a plea to the jurisdiction and a Rule 91a motion on that basis.

The trial court granted the City’s plea and motion but also granted Legacy leave to replead. Both parties appealed.

The court of appeals affirmed, holding that Chapter 271’s waiver of immunity requires compliance with Section 2252.908(d). The court of appeals also held that the trial court’s consideration of the City’s Rule 91a motion was inappropriate due to the court’s lack of subject-matter jurisdiction but that any complaint about that error was moot. Finally, the court held that it lacked appellate jurisdiction to review the order granting Legacy leave to replead, as that order was not final or otherwise appealable.

Both parties petitioned for review. After they had done so, the Legislature passed HB 1817, which amended Section 2252.908 to require that a governmental entity notify a business entity of its failure to submit a disclosure of interested parties. HB 1817 also provides that a contract is deemed to be “properly executed” until the governmental entity provides notice to the business entity. Lastly, it permits a court to apply the new statutory requirements to already-pending cases if the court finds that failure to enforce the new requirements would lead to an inequitable or unjust result.

Due to this change in the law,

the Supreme Court granted the petitions for review, vacated the court of appeals’ judgment, and remanded for the trial court to conduct further proceedings in accordance with the new statutory requirements.

PROFESSIONAL NEGLIGENCE: Petition for review granted in dispute over anti-fracturing rule.

Rivas v. Pitts, No. 23-0427 (pending), appealing ___ S.W.3d ___, 2023 WL 3070811 (Tex. App.— Austin 2023), pet. granted (Mar. 15, 2024).

At issue in this pending case is whether a plaintiff can maintain fraud and breach of fiduciary duty claims against his accountants.

From 2007 to 2018, Brandon Pitts and other accountants at the Pitts & Pitts firm provided accounting services to Rudolph Rivas, a custom home builder. These services included preparing tax returns and financial statements, defining ledger accounts, and training Rivas’s staff in various accounting skills.

In 2016, Rivas discovered several accounting errors that had artificially inflated the valuation of shareholder equity in his company. Rivas had to pay millions of dollars to various financial institutions to avoid defaulting on loans. Rivas also struggled to secure new lines of credit, and several of his businesses have since failed.

Rivas sued the accountants for professional negligence, breach of contract, breach of fiduciary duty, and fraud.

The accountants filed a traditional and no-evidence motion for summary judgment as to each claim. The trial court granted the accountants’ motion without stating its reasoning.

The court of appeals affirmed in part and reversed in part. The court first held that Rivas had waived or confessed error with respect to his negligence and breach of contract claims, and it affirmed the summary judgment for those claims. That left Rivas’s claims for fraud and breach of fiduciary duty.

The accountants argued that these claims are barred by the anti-fracturing rule, which prohibits a plaintiff from converting a claim for professional negligence into some other common law or statutory claim. The accountants also argued that there is no evidence to support either claim. The court of appeals rejected both arguments and reversed the summary judgment with respect to the fraud and breach of fiduciary duty claims.

The accountants petitioned the Supreme Court for review, urging their antifracturing rule and no-evidence points. The Supreme Court granted the petition on March 15, 2024. AL

DOJ Announces White-Collar Whistleblower Rewards Program, Sentencing Enhancements for Corporate Misuse of AI

At the American Bar Association’s 39th National Institute on White Collar Crime, U.S. Deputy Attorney General Lisa Monaco announced the formation of a Department of Justice (DOJ)-run rewards program for whistleblowers.

“The premise is simple,” Monaco said during her remarks in San Francisco on March 7, 2024. “If an individual helps DOJ discover significant corporate or financial misconduct—otherwise unknown to us—then the individual could qualify to receive a portion of the resulting forfeiture.”

The program is part of the DOJ’s increased interest in creating corporate cultures of compliance, Monaco said. She further stated that the DOJ had already established “guardrails” for the pilot rewards program.

“We’d offer payments: only after all victims have been properly compensated; only to those who submit truthful information not already known to the government; only to those not involved in the criminal activity itself; and only in cases where there isn’t an existing financial disclosure incentive—including qui tam or another federal whistleblower program,” Monaco said.

While the DOJ will always accept any information about violations of federal law, Monaco said the department is especially interested in:

• Criminal abuses of the U.S. financial system;

• Foreign corruption cases outside the jurisdiction of the SEC, including Foreign Corrupt Practices Act violations by non-issuers and violations of the recently enacted Foreign Extortion Prevention Act; and

• Domestic corruption cases, especially involving illegal corporate payments to government officials.

Monaco gave two examples

Fraud using AI is still fraud. Price fixing using AI is still price fixing. And manipulating markets using AI is still market manipulation.

of whistleblowing in which the whistleblower would be eligible for monetary rewards: “Maybe you work—or your client does—at a fast-growing private startup here in the Bay Area, and you discover the company’s been paying bribes to get regulatory approvals and doctoring the books to hide the payments. If you come forward, you could get paid as part of the recovery from that criminal case. Or maybe you’ve got a client at a private equity firm, and she discovers the CFO is forging underlying loan documents. Once again, if your client reports it, a portion of the recovery could be hers.”

Monaco also addressed corporate use of artificial intelligence.

“Fraud using AI is still fraud,” Monaco said. “Price fixing using AI is still price fixing. And manipulating markets using AI is still market manipulation.”

Monaco went on to say that the DOJ will seek sentencing enhancements for individual and corporate defendants who “deliberately misused” AI “to make a white-collar crime significantly more serious.”

She also said the DOJ’s AI policies would be informed through its Justice AI initiative, “a series of convenings with stakeholders across industry, academia, law enforcement, and civil society to address the impacts of AI.”

To view the full transcript of Monaco’s remarks, visit https://

www.justice.gov/opa/speech/deputy-attorney-general-lisa-monaco-delivers-keynote-remarks-american-bar-associations. AL

U.S. Deputy Attorney General Lisa Monaco announced the formation of a Department of Justice-run rewards program for whistleblowers during the American Bar Association’s 39th National Institute on White Collar Crime.

An Open Letter of Gratitude

BY JUDGE ANDY HATHCOCK, TRAVIS COUNTY CIVIL DISTRICT COURTS

It is with immense gratitude that I write to announce that I will retire from service as associate judge for the District Courts of Travis County on May 31, 2024.

I have enjoyed my service on the bench as an associate judge in Travis County and, before that, as the first associate judge for the Child Protection Court of Central Texas.

I am grateful to the judges who first appointed me and to those who have been my supervisors and colleagues for the past 24 years.

I am grateful to all those who mentored and encouraged my legal career before and on the bench.

I am grateful to my court staff: court reporter Angie Hertel, judicial executive assistant Patsy Ybarra, and former bailiff Wilson Andrews, for making the court work smoothly and for always making me look better than I am.

I am grateful to the Austin Bar, especially the Family Law bar. I cannot think of a better, more collegial, and supportive group of lawyers and judges.

I am especially grateful to my wife, Valinda Bolton, and our son, Marshall, for their unwavering love and support.

I have always felt that being a judicial officer is both a craft and a calling. One of my law professors was fond of saying that judicial decisions must be correct, and they must be fair. The correctness part is self-evident; by fairness, she meant that the process must be fair and, equally important, must appear to be fair. Litigants must feel they have been heard respectfully and their concerns taken seriously, even if the law requires ruling against them.

It is a sacred responsibility to uphold the Rule of Law and to seek to administer justice fairly and impartially, and I am most grateful to have had the opportunity to try to do that every day.

Andy

Hathcock Associate Judge Civil District Courts of Travis County

A retirement party for Judge Hathcock will take place on May 31, 2024, from 11 a.m. to 3 p.m., in the multi-purpose room on the first floor of the Travis County Civil and Family Courts Facility, 1700 Lavaca Street.

Does UT Tyler Health Science Center’s Deal with Private Equity Shield Doctors From Malpractice Suits?

BY ELEANOR KLIBANOFF, THE TEXAS TRIBUNE

Michael Simington wasn’t one to see a doctor. But when the 67-year-old retired welder started having trouble urinating, he knew something was wrong.

He saw Dr. Ruben Garcia, a urologist in Corsicana, in October 2019. A biopsy showed he had prostate cancer. But Garcia didn’t share those results with him for a year and a half, Simington said. By the time Simington learned of his diagnosis in March 2021, “it done spread,” he said. “They said that usually when it’s gone that far, there ain’t no going back.”

A urologist from the University of California, Los Angeles, hired by Simington’s attorney, reviewed the case and determined that the delayed diagnosis may have cost Simington eight to 10 years of his life. To Simington, this seemed like a clear-cut case of medical malpractice, so he sued Garcia.

That’s when Simington fell through a trapdoor in Texas’s medical malpractice system and found himself facing an unexpected adversary: The University of Texas System.

While the clinic where Garcia practices is owned and operated by a for-profit healthcare system, he is employed by that system’s business partner: The University of Texas at Tyler Health Science Center.

Most people don’t pay much attention to who their doctor works for. But if things go awry, it becomes a distinction with a significant difference. In Texas, doctors employed by a government entity—like a county hospital or state medical school—are generally not subject to medical malpractice suits. Patients can, under narrow circumstances, sue the doctor’s employer, but for far less money than a standard medical malpractice suit.

What began as a case about a delayed diagnosis has spawned something much larger. Simington’s lawyer alleges that UT Tyler Health Science Center is fraudulently hiring doctors like Garcia as medical school professors to shield them from lawsuits, while they perform all of their work for a for-profit, private equity-backed healthcare system the university has an ownership stake in.

The university declined to comment on the pending litigation, but said in a statement that its healthcare venture “has been exceptionally successful and significantly enhanced medical education and healthcare for East Texas.”

In March 2023, Simington recorded a statement from his bed in the corner of his son’s living room. The frail, sunken man on camera is virtually unrecognizable from the sturdy, foulmouthed fisherman featured in photographs around the house. He was in unrelenting, teeth-chattering pain as the cancer essentially starved him to death.

This video affidavit was one of his last acts to allow his children to continue the lawsuit without him. He died at home less than two weeks later.

“Man, they ain’t covered by no government immunity,” he said, his wispy voice gaining steam. “That’s just some type of loophole they found to get their damn foot in the door.”

A Health System Is Born

Tucked “behind the pine curtain,” Northeast Texas reflects the fundamental mismatch of rural healthcare. While residents in the area are older and sicker than the state at large, they are less likely to have access to nearby medical care. It’s a region that’s been hit hard by hospital closures, physician and nursing shortages and lack of affordable health insurance.

A few years ago, these grim economics seemed to be coming for one of Northeast Texas’s largest health care providers, East Texas Medical Center (ETMC). The nine-hospital system, with associated physician practices, outpatient clinics, and ambulance services, had been struggling with debt and operational issues for years.

But then, in 2017, ETMC announced it had found a buyer. Two, in fact. Seemingly overnight, a familiar shade of orange unfurled across the region, signaling the dawn of a new healthcare system: UT Health East Texas.

UT Health East Texas was created in partnership with UT Tyler Health Science Center, the graduate medical education center in the region. But most of the funding for this acquisition came from the university’s for-profit partner: Ardent Health Services. Ardent invested almost $350 million to buy the ETMC properties and promised $125 million in system improvements.

Based in Nashville, Ardent is

the fourth-largest privately held hospital operator in the country, with hospital systems in six states. It’s owned by Ventas, a real estate investment trust; Pure Health, a healthcare platform in the United Arab Emirates; and Equity Group Investments, a private equity firm founded by billionaire investor Sam Zell.

Zell, who died in 2023, called himself the “grave dancer” for his success buying and selling moribund companies. He is perhaps best known for his failed turnaround of Tribune Co., which owned the Los Angeles Times and The Chicago Tribune. The “deal from hell,” as he called it, led to the largest media bankruptcy at that point in U.S. history in 2008.

A decade later, Zell’s backing allowed Ardent to move into academic medicine, starting with a University of Kansas hospital in 2017, and soon after, UT Health East Texas.

Despite its affiliation with a public university, UT Health East Texas is a for-profit health care system. Ardent owns 70% of the

The UT Tyler School of Medicine under construction on Dec. 7, 2023.

Photo by Greta Díaz González Vázquez for The Texas Tribune

entity and manages day-to-day operations. The university owns 30%; UT Tyler’s president chairs the corporate board.

The exact terms of the joint venture between Ardent and UT Tyler Health Science Center are detailed in a master services agreement, which the university declined to provide to The Texas Tribune through an open records request, saying it would provide an advantage to marketplace competitors. The Texas attorney general’s office upheld that denial.

Private equity has become an increasingly dominant force in American healthcare, snapping up physician practices, hospital chains and whole healthcare systems with the goal of turning a profit for investors. But it’s moved more slowly into academic medicine, which is built on a model of reinvesting at least some of its revenue into less profitable ventures, like education, research and development.

“These partnerships with academic health centers and nonprofits are relatively new, and they’re playing under the radar,” said Eileen O’Grady, healthcare director at Private Equity Stakeholder Project, an industry watchdog. “It allows a private equity firm to penetrate a market that has historically not been available to [private equity], and to do so with, I would argue, less financial risk.”

Private equity’s rapid acquisitions of hospital systems have raised red flags for researchers, watchdog groups and even a bipartisan group of U.S. senators, who worry about the emphasis on profits over patients and providers. But for rural and community hospitals, struggling with debt and shrinking payer bases, private equity firms may present an option too enticing to turn down.

In East Texas, Ardent was welcomed in with open arms, heralded as a savior for a healthcare system on the brink.

“The formation of UT Health East Texas is a game-changer for our region,” UT System regent Kevin Eltife said in a press release at the time. “With the support of the UT System and Ardent, UT Health East Texas will continue to raise the bar for quality and accessibility of healthcare services while generating significant

economic impact for communities throughout East Texas.”

ETMC took the proceeds of the sale and became a private foundation, which then donated $80 million back to UT Tyler to help start the area’s first medical school. The medical school, which admitted its first class this fall, hopes to help rebuild East Texas’s physician pipeline by recruiting students interested in staying in the region after graduation.

For people who’d watched the rise and fall of health care in Northeast Texas, this all seemed like good news. Reid Martin, a longtime medical malpractice attorney, was excited about the investment in the region—as a Tyler

resident, as a UT alum and as the proud parent of a medical student. “I want the medical school here. I want doctors here,” Martin said.

“But I want good doctors here.”

A few years later, he took on Michael Simington’s case. And that’s when he started to look

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more closely at some of the implications of this partnership for medical malpractice lawsuits.

“I didn’t realize until I looked into it,” Martin said. “But the way they’ve set up [UT Health East Texas], there’s no way to hold the doctors working here accountable.”

Governmental Immunity

Since it launched, UT Health East Texas has expanded far beyond ETMC’s original footprint. Originally, there were 52 physician clinics under its name. Today, it has more than 90.

Among the acquisitions were four urology clinics owned by Dr. Ruben Garcia. At the time, a press release assured patients they could see the “same providers in the same locations with the same telephone numbers.” But Garcia and his fellow doctors would become “official members of the UT Health Athens team.”

But Garcia was not actually hired by UT Health East Texas or its subsidiary, UT Health Athens. While UT Health East Texas now owned the equipment, employed the staff, handled the billing and scheduled patients’ appointments, Garcia himself was hired by The University of Texas at Tyler Health Science Center, which paid him an annual salary to serve as a 100% clinical assistant professor of surgery.

Since 2018, more than 200 doctors across East Texas have been hired by the university as professors while practicing at UT Health East Texas.

UT Health East Texas CEO G. Todd Hill said in a 2023 deposi-

tion that adding the faculty physicians was part of getting ready to have the medical school in Tyler.

The UT Tyler School of Medicine admitted its first class this fall, four years after Garcia first signed on as a professor.

“There is a growth of the [graduate medical education] program throughout East Texas,” Hill said. “And so I think all of this has been preparatory and planned. So having the growth of university physicians throughout makes sense.”

Less than a month after Garcia signed on as a university professor, Simington went to see him for a prostate biopsy. The signage at Garcia’s office, as well as his white coat and his web presence, all branded him as working for UT Health East Texas, a for-profit company. To confuse things further, the forms Simington filled out still bore the name of Garcia’s private practice.

In recent weeks, after the Tribune began asking questions about the partnership, UT Health East Texas updated its website to say that certain providers, including Garcia, are “employed as a clinical faculty physician at The University of Texas Health Science Center at Tyler under the UT Tyler School of Medicine.”

When it comes to medical malpractice cases, which entity has the “right to control” your doctor’s work can mean the difference between getting your day in court—or getting thrown out on a technicality.

After the biopsy, Simington said he never heard from Garcia. His medical records show a fol-

low-up appointment was scheduled for two weeks later, but Simington said he was never told about this, and there wasn’t a “no show” noted in his file, according to the UCLA expert’s report.

Simington called Garcia’s office several times, and his primary care provider twice requested the results on his behalf, but got no response, according to the lawsuit.

“He’s from the generation of no news is good news,” Rodney Simington, his son, said. “Nobody called him. Nobody sent him letters. He doesn’t do email or anything like that, so he didn’t hear anything.”

In March 2021, with his symptoms worsening, Simington’s primary care provider urged him to go see Garcia again. Finally, 18 months after the biopsy, Garcia gave Simington the results.

It was cancer. And it appeared to be stage 4.

“I wanted to knock him out of that chair, is what I wanted to do, but I kind of held my temper a little bit,” Simington said. “That’s when I started getting in contact with all my kids and stuff and giving him a hard time not having me an oncologist onboard.”

When an oncologist did a bone scan, “his whole body just lit up,” Rodney said. “It was in his hips, his knees, ankles, back, neck, shoulders. It metastasized into the bones.”

Garcia declined to comment through his lawyer. But in a legal filing, he denied wrongdoing and said Simington’s damages were a result of “unavoidable occurrence” and “pre-existing and/ or subsequently occurring conditions and disabilities and/or unrelated treatment of the decedent.”

Rodney Simington, a detective with the Tyler Police Department, and his wife, Michelle, a nurse, moved into a single-story house so they could care for Rodney’s dad in his final months. In the beginning, he stood around “supervising” Rodney’s renovations. But pretty quickly, he was in too much pain to do much more than sit in his recliner and shuffle outside for a cigarette.

“We did all the appointments, anything you could think of, even to the point of … doing radiation,” Rodney said. “It was pain-

ful for him. He’d be sick for days afterwards. But he was fighting, tooth and nail.”

Just shy of two years after his initial biopsy, Simington filed a lawsuit against Garcia and UT Health East Texas, which he believed to be Garcia’s employer. Martin, his lawyer, thought it was a pretty open-and-shut medical malpractice case against a private healthcare provider.

“Normally, we wouldn’t take a misdiagnosis or delayed diagnosis, because they get to them timely enough to where it didn’t really change the outcome,” Martin said. “But here, 18 months, with no treatment and not telling him and allowing it to spread throughout his body in such an aggressive manner, it’s inexcusable.”

That’s when the question of who Garcia worked for suddenly became very, very important.

If Garcia is employed by UT Health East Texas, a private, for-profit company, Simington could have sued under the typical medical malpractice statute. Under Texas’s 2003 tort reform law, a plaintiff can be awarded up to $250,000 in non-economic damages against a doctor, among the lowest damage caps in the nation. But there’s no limit on economic damages—things like medical expenses and lost wages—so a plaintiff can sometimes win significantly more in the end. In 2018, Martin won a $43 million judgment against ETMC on behalf of a patient who ended up in an induced coma for a month after he was treated by a doctor who was on probation; the hospital system settled for $9 million.

But Garcia’s lawyers say he is employed by UT Tyler Health Science Center, a state agency, a distinction that could protect him from most medical malpractice suits.

Instead of suing Garcia directly, Simington would have to sue the university under a much narrower statute with lower potential winnings. He would have had to have notified the state of his intent to sue within six months, and he would have to prove that the incident involved “tangible personal property.” For medical malpractice, that usually means something like a nick with a scalpel or a sponge left inside a patient. Non-treatment or a missed diagnosis rarely qualifies.

Dr. Ruben Garcia’s office in Athens, Tex.

Photo by Greta Díaz González Vázquez for The Texas Tribune

Even if Simington’s case met these very narrow qualifications, which it likely doesn’t, the most he could win is $250,000—economic and non-economic damages combined. It’s difficult to find a lawyer in Texas willing to take on these cases for so small a payout.

This is the two-tiered system of medical malpractice liability in Texas: Doctors employed by private healthcare systems can be held liable for malpractice; doctors employed by government medical facilities, like county hospitals and academic health centers, generally cannot.

“I don’t agree with the limitations of [the law], but I’ve learned to work within its confines,” Martin said. “I’ve made a practice out of it. But now, they’re saying that’s not enough for them, they want to stretch this even further.”

In his lawsuit, Martin argues that the partnership between Ardent and UT Tyler Health Science Center is an attempt to pull the shroud of governmental immunity over doctors who actually work for a private healthcare facility.

“I’d never seen anything like this in my 32 years practicing,” he said.

Hill, the UT Health East Texas CEO, said in his deposition that the partnership was intended to address healthcare shortages and expand medical education in East Texas, not close off a group of doctors from medical malpractice liability.

Martin asked Hill if he would characterize it as an “unintended consequence.”

“It’s not the purpose of it. I’m not going to characterize it,” Hill said. “But certainly sitting in my chair … it’s not even on the top 10 list of what I’m—why I’m here and what we’re focused on.”

Medical malpractice attorneys on both sides have spent years trying to figure out just how far this veil of protection extends, litigating cases involving Parkland Health in Dallas, University Hospital in San Antonio, UT Southwestern, M.D. Anderson and other county and state entities.

Texas courts have tended to rule that doctors can carry their immunity with them, even when practicing at a non-governmental medical facility, as long as the government agency still retains the “right to control” the doctor’s work.

In an affidavit, Garcia said his employment was entirely directed and controlled by the university, “such as the schedule that I worked, the facility where I worked, the type of patients I cared for … and the type of medical services I was authorized to render.”

The original memorandum of appointment that Garcia signed in 2019, which governed the period when he treated Simington, said he was being paid a university salary “solely for clinical and administrative services provided on behalf of UT Health East Texas.” Future versions of the contract added that his work was provided on behalf of the university, at UT Health East Texas facilities.

The contracts say Garcia may be responsible for research and educational activities; in his deposition, he said he did not teach a class or supervise a resident during the period he was treating Simington. The contracts are signed by Garcia, representatives from the university, and the president of UT Health East Texas.

Further details about the partnership and terms of Garcia’s employment are contained in nearly 900 pages of documents filed with the court under a protective order.

Martin twice had to ask the judge to intervene to get UT Health East Texas to hand over records he was due as part of the standard discovery process. He has, unsuccessfully, petitioned the court to unseal the records.

Martin believes he can prove in court that the university is not actually controlling Garcia’s work, and that this partnership involves doctors “pretending” to be state employees to get medical malpractice protections.

“They’re purchasing all these clinics, and doctors are signing these MOAs in East Texas from Carthage to Canton,” he said. “If we don’t fight, we’re going to have an area in the state of Texas where the patient is going to lose their rights.”

The Case Continues

On March 6, 2023, less than a month before Simington died, lawyers gathered in a conference room to depose Garcia.

On one side was Martin, representing Simington.

On the other side were two pri-

vate attorneys from Dallas medical malpractice defense firms; two lawyers from The University of Texas System; and an assistant attorney general.

A case that started out about a delayed diagnosis is now focused entirely on the details of this partnership between the university and a for-profit healthcare system. Both sides have filed motions for summary judgment, asking the judge to resolve the central questions in this case. The court has not set a hearing date.

Martin is hoping the judge will rule that Garcia is not a state doctor. That would allow Martin to sue him as an individual for his treatment of Simington, as well as pursue his claims that the university and UT Health East Texas engaged in fraud by hiring these doctors as professors.

Garcia’s attorneys are asking the judge to remove him from the case and substitute the university, essentially validating the structure of the partnership between Ardent and the university. Simington’s case would likely then be thrown out since it was reported more than six months after the incident and didn’t involve the

tangible use of personal property. Either ruling will likely result in an appeal. Martin said he is willing to litigate this all the way to the Texas Supreme Court if necessary, and Simington’s children say they’re not planning to quit anytime soon.

“I miss him everyday, but I’m more angry than anything,” Rodney Simington said. “They don’t care. To them, it’s an issue of shoving the blame somewhere else … . I’m not going to let this go. They picked the wrong person.”

Martin ended Garcia’s deposition with a question: “Do you think it’s fair to the patients in East Texas to have doctors providing medical care on behalf of a for-profit healthcare corporation while claiming to be protected by governmental immunity?”

“I believe that East Texas has been an underserved community,” Garcia replied, “and that The University of Texas Health Science Center is providing opportunities for healthcare that have not been available prior to this.”

“Objection, nonresponsive,” Martin responded. “But we’ll leave it at that.” AL

On behalf of the Austin Bar Association’s DEI Committee, I am excited to invite members of the Austin legal community to our annual Equity Summit.

This year’s CLE program will be held on Thursday, May 23, 2024, from 12:30 to 5:30 p.m. at the Austin Community College Rio Grande Campus, 1212 Rio Grande St, Austin, TX 78701.

The theme for this year’s program is “Equity Is for Everyone.”To that end, this year’s panels and presentations will focus on the importance of diversity, equity, and inclusion in the legal profession— not just on behalf of our clients, but also within the legal community. It will also provide a legislative update on recent changes to the DEI landscape in Texas.

This year’s Equity Summit also builds upon the work of previous programs. In 2021, the inaugural equity summit focused on implic -

Annual Equity Summit Registration Now Open

BY KETAN KHAROD, GUERRERO & WHITTLE, PLLC

it bias and systemic hurdles (e.g., land development codes, inequitable access to the legal system, etc.).

The following year, the DEI committee shined a spotlight on gender equity in the profession.

In 2023, the focus was broader, looking at “Identity at Work”— thereby highlighting both barriers and best practices from the perspective of lawyers of various backgrounds. And while many people think of these only in terms of race, ethnicity, religion, and gender identity, we also focused on other “identities”—e.g., as caregivers of family members with special needs, practicing with disabilities, and other “identities” that may not be visible to the eye.

Given the heightened attention these issues have in our current political and cultural discourse, we are hopeful the 2024 Equity Summit can build upon the success of the prior programs to serve Austin lawyers and, in turn, the communities that we serve and represent. This year’s panels and presentations will again bring together a range of voices and experience—because, as our theme says, “Equity Is for Everyone.” More importantly, we hope to give all attendees some tools they can bring back to their communities and the people they serve to assist in reset-

ting the conversation: “DEI” is not a caricature or a racially charged pejorative, nor is it a menacing, amorphous bogeyman (See, e.g., “go woke, go broke”). Each of the letters represents a concept that has meaning and value: Diversity. Equity. Inclusion. I recognize that, among lawyers, there may be respectful disagreement about how we embody those values in the workplace and within the profession, but hopefully this summit will help provide some tools to guide these conversations and an opportunity for internal reflection.

In addition, this year’s summit will also focus on another category of lawyers who are traditionally overlooked in DEI-themed discussions: first-generation lawyers. Regardless of any other “identity,” first-gen lawyers face unique challenges in the profes -

sion—starting in law school (if not before) and continuing into their legal careers. We will look forward to hearing from some of our firstgen peers about their experiences, including what they learned in their journey that would pave the way for future waves of first-gen lawyers.

Finally, recognizing that conversations around diversity, equity, and inclusion cannot be contained to a finite time or space, we hope that all attendees will join us for a post-CLE happy hour and networking event (details TBA). In the meantime, please register for this year’s annual Equity Summit at austinbar.org. AL

Ketan Kharod is Of Counsel with Guerrero & Whittle, PLLC, and a co-chair of this year’s Equity Summit.

American Inns of Court Accepting Applications for 2024-25

The Austin chapters of the American Inns of Court are accepting applications for the 2024-25 terms. The American Inns of Court are designed to improve the skills, professionalism, and ethics of the bench and bar. Information about the American Inns of Court can be found at www.innsofcourt.org. Each inn meets monthly.  The deadline to apply is May 31, 2024. Interested applicants should submit a letter of interest, a current resume, and two letters of recommendation to the membership chairs below.

Robert W. Calvert Inn of Court

The Robert W. Calvert Inn of Court is the first inn established in Austin and has received Platinum recognition from the American Inns of Court. Applications are welcome from any practicing attorney or judge in Travis and contiguous counties. Membership is open to all licensed Texas attorneys without regard to area of practice or trial experience. Contact Matt Garcia (matt@barnettgarcia.com) or Shelby O’Brien (sobrien@enochkever.com) for more information.

Barbara Jordan Inn of Court

The Barbara Jordan Inn of Court is accepting applications from any practicing litigation attorney, government attorney, judicial law clerk/staff attorney,

in-house counsel, or judge from Travis and contiguous counties.

The Barbara Jordan Inn enjoys an enthusiastic and diverse community of members committed to honoring Barbara Jordan’s legacy of collegiality, professionalism, and integrity. The inn has received Platinum recognition from the American Inns of Court.  Membership is open to all licensed Texas attorneys and graduating 3Ls awaiting bar results, without regard to practice area or years of experience. Contact Pam Deitchle (pam@dstexaslaw.com) for more information.

Lloyd Lochridge Inn of Court

The Lloyd C. Lochridge American Inn of Court is dedicated to the promotion of excellence in professionalism, ethics, civility, and legal skills within the Austin litigation community. Applications are welcome from any practicing litigation attorney or judge. Membership is limited to the number of available openings. Contact Christie Mason Hebert (christie.emh@ gmail.com) for more information.

The Honorable Lee Yeakel Intellectual Property Inn of Court

The Honorable Lee Yeakel Intellectual Property Inn of Court focuses on intellectual property law. The inn’s membership includes judges, judicial

clerks, special masters, in-house counsel, litigators, IP prosecution attorneys, transactional attorneys, professors, and law students. The Yeakel IP Inn accepts membership applications during the entire month of May each year. Information on applying is available at https://inns. innsofcourt.org/for-members/ inns/the-honorable-lee-yeakel-intellectual-property-american-inn-of-court/application-information/. All membership application materials can be sent to Membership Chair Travis Wimberly, twimberly@pirkeybarber.com, with a copy to Darla Thomas, dkthomas@wsgr. com. For tracking purposes, please include “Lee Yeakel IP Inn of Court” in the subject line.

Larry E. Kelly American Bankruptcy Inn of Court

The Larry E. Kelly American Bankruptcy Inn of Court is an organization of judges, lawyers, legal educators, and law students dedicated to promoting excellence in legal advocacy in all areas of bankruptcy practice.  The LEK Inn has been awarded Platinum recognition from the American Inns of Court. Membership is available to practicing attorneys, bankruptcy judges, and their law clerks, as well as law students interested in the practice of bankruptcy law. For more information about the LEK Inn and admission applications, contact LEK Inn Membership Chair Leslie Luttrell at  luttrell@lclawgroup.net. AL

Austin Bar Members Appear Before Texas Supreme Court

Austin Bar Member PAUL MATULA, Assistant City Attorney’s Office, for Respondents

Borgelt v. Austin Firefighters Assoc. IAFF Local 975, No. 22-1149

The main issue in this case is whether a provision in a collective bargaining agreement that allocates a pool of paid leave to further a union’s interests violates any “Gift Clause” in the Texas Constitution (Art. III, Secs. 50, 51, 52(a) and Art. XVI, Sec. 6(a)). The Gift Clauses are structural limitations that aim to reduce the misuse of public funds and resources by requiring specific conditions to be met before such expenditures can be made.

The Austin Firefighters Association represented members of the Austin Fire Department in contract negotiations with the City of Austin, which resulted in a collective bargaining agreement. Article 10 of the agreement allocates thousands of hours of paid leave to be used by the Association president and authorized firefighters for “Association business.”

A group of Austin taxpayers sued the Association and City, arguing that Article 10 violates the Gift Clauses because it lacks sufficient consideration and fails to serve a predominantly public purpose. The State intervened in support of the taxpayers and further asserted that Article 10 does not serve a strictly public purpose. The trial court rendered judgment for the defendants after a bench trial. The court of appeals affirmed, reasoning that the paid leave arrangement is not a gratuitous gift and serves a predominantly public purpose.

The taxpayers and the State filed petitions for review, which the Supreme Court granted.

Austin Bar Member

WILLIAM L. MENNUCCI, Thompson Coe Cousins & Irons, LLP, for Petitioner

Ford Motor Co. v. Parks, No. 23-0048

This case concerns when a sale occurs under the statute of repose for products liability, which requires a claimant to sue the manufacturer or seller “before the end of 15 years after the date of the sale of the product by the defendant.”

Samuel Gama sustained permanent, severe injuries when his Ford Explorer flipped and rolled several times during a traffic accident. Gama, his mother, and his wife, Parks, sued Ford for products liability under negligence and strict-liability theories. Ford asserted the statute of repose as an affirmative defense, arguing that the case was barred because it was brought more than 15 years after the Explorer was originally sold. Ford moved for a traditional summary judgment, arguing that a dealership first sold the Explorer more than 15 years before Parks brought suit. When Parks demonstrated that the dealership had initially leased the Explorer, Ford brought a second motion for a traditional summary judgment based on its sale of the Explorer to the dealership. In response, Parks argued that Ford failed to conclusively establish the date of sale because it relied on the inconsistent and contradictory testimony of interested witnesses.

The trial court granted summary judgment for Ford, but the court of appeals reversed, and Ford filed a petition for review. Ford argues that proof of payment on a date certain is not required to demonstrate that a sale oc -

curred for purposes of the statute of repose. Instead, Ford contends it merely had to show that a sale must have occurred outside of the 15-year window for suit. Ford also asserts that it met its burden at summary judgment to prove that a sale occurred outside the 15year window. The Supreme Court granted the petition for review.

Austin Bar Member

WALLACE B. JEFFERSON, Alexander Dubose & Jefferson LLP, for Petitioner

Tex. Disposal Sys. Landfill, Inc., v. Travis Cent. Appraisal Dist., No. 22-0620

The issue in this case is whether the trial court had subject-matter jurisdiction over an appraisal district’s claim that the Appraisal Review Board’s appraisal of a taxpayer’s property was below market value, even though the taxpayer brought, and the board decided, only an unequal-appraisal protest.

After the Travis County Appraisal District appraised Texas Disposal Systems Landfill’s 344acre property for the 2019 tax year, the Landfill protested the value to the Travis ARB, asserting only an unequal-appraisal challenge. The ARB issued an order agreeing that the appraisal was unequal and significantly reducing the appraised value of the property. The ARB did not determine the property’s market value.

As authorized by the Tax Code, TCAD appealed the ARB’s order to a district court, pleading that the ARB’s appraisal resulted in unequal appraised value and was below market value. The trial court granted the Landfill’s plea to the jurisdiction and dismissed TCAD’s market-value claim on the ground that the ARB only determined an unequal-appraisal

protest. The court of appeals reversed the plea, holding that the trial court had jurisdiction over TCAD’s market-value claim.

Texas Disposal Systems petitioned the Supreme Court for review, arguing that the Tax Code limits trial courts’ subject-matter jurisdiction to only the grounds raised in the taxpayer protest and determined by the ARB. The Supreme Court granted the petition.

Austin Bar Member RACHEL A. EKERY, Alexander Dubose & Jefferson LLP, for Petitioner

USAA Cas. Ins. Co. v. Letot, No. 22-0238

The issue in this case is whether the trial court erred by certifying a proposed class action.

Sunny Letot’s vehicle was rear-ended by a USAA-insured driver. USAA determined that the cost to repair Letot’s vehicle exceeded its value and deemed her car a total loss. USAA therefore sent Letot a check for the car’s value and filed a report with the Texas Department of Transportation identifying Letot’s car as “salvage.” Letot later rejected USAA’s valuation and check. She sued USAA for conversion for sending TxDOT the report before she accepted payment. Letot then sought class certification. The trial court certified a class for both injunctive relief and damages. The class consisted of all claimants for whom USAA filed a report within three days of attempting to pay a claim for a vehicle deemed a total loss. The court of appeals affirmed the certification order.

USAA petitioned for review. It argues that neither Letot nor the alleged class members have

standing to sue. In the alternative, USAA argues that the class fails to satisfy the certification requirements. The Supreme Court granted USAA’s petition.

Austin Bar Member

SHELDON E. RICHIE, Richie & Gueringer, PC, for Petitioners

Austin Bar Member ISABELLE ANTONGIORGI, Dunham LLP, for Respondents

Keyes v. Weller, No. 22-1085

At issue in this case is whether Business Organizations Code Section 21.223 shields a corporate agent from being held personally liable for torts committed during the course and scope of employment or in the role of corporate agent.

David Weller, president and sole member of IntegriTech Advisors, spent several months in employment negotiations with MonoCoque Diversified Interests LLC, which is wholly owned by Mary Alice Keyes and Sean Leo Nadeau. The parties exchanged emails detailing compensation terms, Weller’s salary, IntegriTech’s training supplement, and payments based on quarterly revenues. Weller had other employment opportunities available but, in reliance on MonoCoque’s representations, declined them and accepted MonoCoque’s employment offer. After Weller’s acceptance, MonoCoque refused to pay him the promised revenue payments for the first quarter. Weller quit and in later discussions was told that MonoCoque had never intended to pay quarterly revenue interest or a training supplement.

Weller filed suit asserting various fraud claims against Keyes and Nadeau, alleging that they were personally liable for their

own fraudulent and tortious conduct notwithstanding that they were acting as agents of MonoCoque. Keyes and Nadeau filed a motion for partial summary judgment on all of Weller’s claims against them in their individual capacities. The trial court granted the motion, but the court of appeals reversed.

Keyes and Nadeau petitioned the Supreme Court for review, arguing that Weller only relied on statements that Keyes and Nadeau made in their capacity as representatives of MonoCoque and that Section 21.223 shields corporate agents from personal liability for the corporation’s contractual obligations. Weller responds that Section 21.223 only shields veil-piercing theories of liability and was never intended to preclude personal tort liability.

The court granted the petition for review.

Austin Bar Member

MARCY HOGAN GREER, Alexander Dubose & Jefferson LLP, for Respondent

In re Trust A & Trust C, No. 22-0674

The central issue in this case is whether compulsory joinder extends to subsequent purchasers of stock when a lawsuit between other parties effectively adjudicates the stock’s ownership.

Glenna Gaddy, a co-trustee of a family trust, transferred stock from the family trust to her personal trust. Gaddy then sold the stock from her personal trust to her two sons. Following the sale, Mark Fenenbock sued Gaddy, seeking a declaration that he is a co-trustee under the trust agreement and that the transfer was void because he had not consented to it as co-trustee.

The probate court declared the stock transfer to be void, ordered that the stock be “restored” to the family trust, and ordered Gaddy to

undertake certain actions, including an accounting and deposit of substantial funds. Gaddy appealed the probate court’s order declaring the stock transfer from the family trust to her personal trust void.

The court of appeals vacated and remanded, holding that the probate court lacked jurisdiction to declare the stock transfer void due to the omission of “jurisdictionally indispensable” parties.

In particular, the court of appeals concluded that the probate court committed fundamental error and lacked subject-matter jurisdiction to enter the order for failing to join Gaddy’s sons—the purported owners of the stock in question.

Both parties petitioned for review as to the court of appeals’ jurisdictional holding. Fenenbock argues that Gaddy’s sons need not have been joined at all. Gaddy argues that her sons need not have been joined in order for the probate court to have jurisdiction, but that the probate court’s adjudication of the stock’s ownership in her sons’ absence was error.

The Supreme Court granted the parties’ petitions for review.

Austin Bar Member W. LANCE CAWTHON, Snell Law, for Petitioner

Malouf v. State ex rel. Ellis, No. 22-1046

A primary issue in this case is whether the State can conclusively establish Medicaid fraud at summary judgment when scienter is an essential element of the claim.

Dr. Malouf is a dentist who owned a chain of dental offices. Dr. Malouf and his associates were approved Medicaid providers who provided dental and orthodontic services to Medicaid recipients. Over a three-year period, Dr. Malouf submitted forms falsely representing that he provided services to Medicaid recipients, although the dental services provided to the beneficiaries of those claims

were actually performed by other dentists in Dr. Malouf’s practice.

Two private citizens brought separate qui tam actions against Dr. Malouf for violations of the Texas Medicaid Fraud Prevention Act. The trial court consolidated the cases after the State intervened in both. The State’s live petition at the time of summary judgment asserted that Dr. Malouf knowingly failed to identify the license type and Medicaid billing number of the treating dentist on more than 1,800 Medicaid claims, listing himself as the treating dentist, when, in fact, another dentist had provided the services. Both parties moved for summary judgment, the State on traditional grounds and Dr. Malouf on no-evidence grounds. The district court denied Dr. Malouf’s motion, granted the State’s, and awarded more than $16 million in civil penalties, attorney fees for the State and the private citizens who originally brought qui tam actions, and other costs and sanctions against Dr. Malouf.

Dr. Malouf filed a petition for review, arguing that the State did not conclusively show that he failed to indicate the treating dentist’s license type or that he acted knowingly. Specifically, Dr. Malouf contends that he did indicate the correct license type and that his testimony that he lacked personal knowledge of improper billing raised a genuine issue of material fact as to scienter. The court granted the petition for review.

Austin Bar Member

KENNON L. WOOTEN, Scott, Douglass & McConnico LLP, for Appellees

State of Texas v. Loe, No. 23-0697

This case involves a challenge under the Texas Constitution to a statutory prohibition on the provision of certain medical treatments to children experiencing gender dysphoria.

SB 14 adds to the Health and Safety Code subchapter X, which governs “Gender Transitioning and Gender Reassignment Procedures and Treatments for Certain Children.” New Section 161.702 of the Code prohibits a physician or healthcare worker from knowingly performing certain procedures or administering certain treatments “[f]or the purpose of transitioning a child’s biological sex as determined by the sex organs, chromosomes, and endogenous profiles of the child or affirming the child’s perception of the child’s sex if that perception is inconsistent with the child’s biological sex.” SB 14 authorizes the Attorney General to bring an action to enforce the prohibition in Section 161.702, and it amends the Occupations Code to require that the medical license of a physician in violation of Section 161.702 be revoked.

Plaintiffs-Appellees are the parents of children who seek medical treatments prohibited by Section 161.702, physicians who wish to continue providing such treatments to children, and organizations representing the interests of these groups. Plaintiffs sued the Attorney

General and other state defendants, alleging that SB 14 violates the Texas Constitution. Specifically, the plaintiffs alleged that SB 14 violates the due course of law guarantee in Article I, Section 19 by infringing on parental autonomy with respect to medical decision-making, by depriving physicians of a vested property interest in their medical licenses, and by infringing on the occupational freedom of healthcare workers. The plaintiffs further alleged that SB 14 violates the guarantees of equal rights and equality under the law in Article I, Sections 3 and 3a by discriminating against transgender children because of their sex and transgender status.

The trial court denied the State’s plea to the jurisdiction, concluded that the plaintiffs are likely to prevail on the merits of their constitutional claims, and granted a statewide temporary injunction prohibiting the State from enforcing SB 14.

The State filed a direct appeal to the Supreme Court, which noted probable jurisdiction under Section 22.001(c) of the Government Code and set the case for oral argument.

The State challenges the injunction on jurisdictional grounds and on the merits. AL

President’s Column

As Professor Gerald Postema of the University of North Carolina Chapel Hill’s Philosophy Department so aptly noted in his recent article “Almost Sacred Responsibility: The Rule of Law in Times of Peril”: [T]he rule of law is threatened by impunity, not by infractions. Violations of laws or rule-of-law standards themselves threaten law’s rule only when the community’s accountability response is meek or mute. … Vigorous, principled, and articulate resistance by judges, lawyers, and public officials to attacks on rule of law institutions and norms can neutralize any threat and may even strengthen them. But … this response is compromised when first responders or the public at large lack the integrity and courage to hold those who wield ruling power accountable.

Now it’s time, as the ABA president put it, to “rededicate ourselves to our obligations” to protect the rule of law. AL

Editor’s Note: The Austin Bar Board of Directors is actively monitoring rhetoric about the judiciary and will issue responses when necessary. We also encourage readers who are so inclined to submit editorials and articles to be considered for publication in Austin Lawyer.

FOOTNOTES

1 “Statement of ABA President Mary Smith Re: Attacks on Judges.” April 8, 2024. https://www.americanbar.org/news/abanews/aba-news-archives/2024/04/statement-of-aba-president-re-attacks-on-judges/.

2 Tanfani, J, Eisler, P., and Parker, N. “Exclusive: Threats to US Federal Judges Double Since 2021, Driven by Politics.” Reuters, Feb. 13, 2024, https://www.reuters. com/world/us/threats-us-federal-judges-double-since-2021-driven-by-politics-2024-02-13/.

3 You can learn more about Judge Kocurek’s story here: https://www.txcourts.gov/supreme/news/watch-judge-julie-kocureks-terrifying-night-on-cbs-news-48-hours/.

4 ABA Standing Committee on the American Judicial System, “Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary.” American Bar Association, 2018, https://www.americanbar.org/content/dam/aba/administrative/american-judicial-system/2018-rapid-response-to-fake-news.pdf.

Local Solutions. Global Reach.

Goranson Bain Ausley opens our newest office — in Midland.

Six locations, all committed to safeguarding the interests of clients and securing their futures.

By expanding our footprint, Goranson Bain Ausley aims to make the family law experience better in every community we serve. That means offering more people a client-centered, constructive, and strategic divorce to protect what is most important in their lives. From handling complex custody disputes to navigating difficult property divisions, GBA is equipped to guide clients through every step of their legal journey.

We welcome you to our Midland office, the latest testament to our growing presence and dedication to making a positive impact on the lives of families across Texas.

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form, wind down, and buy and sell businesses across Texas.

Escobar’s securities law practice includes working with private placement transactions involving small and medium-sized companies, including review and qualification for state and federal securities exemptions as well as drafting offering memorandums and related subscription documents.  Escobar has also assisted clients with numerous real estate transactions. His experience includes drafting contracts, deeds, deed covenants and restrictions, and easement agreements as well as reviewing and negotiating small and large commercial leases.

Escobar has worked with clients ranging from individual entrepreneurs and small business owners to oil and gas companies and operators, groundwater producers, cooperative associations, hospitals and healthcare providers, real estate developers, property managers, landlords, restaurant owners, doctors, veterinarians, beverage manufacturers, and more.

Professionalism Award:

V. Blayre Pena

The Professionalism Award honors a lawyer who best exemplifies, by conduct and character, truly professional traits that others in the bar seek to emulate, and whom all in the bar admire. Those selected for the award are truly role models for the bar, particularly younger or less experienced lawyers.

V. Blayre Pena was nominated by Abigail Ventress, associate at VBPena Law.

“Ms. Pena always checks all the rules and case law and strives to comply with local rules and standing orders,” Ventress wrote in her nomination, specifically citing the civility with which Pena interacts with opposing counsel.

Pena is a former chair of the Austin Bar’s Civil Litigation Section, a former president of the Williamson County Bar Association, and a fellow of the Texas Bar Foundation.

Pena is certified in civil appellate law by the Texas Board of Legal Specialization. She represents both plaintiffs and defendants in construction disputes, including

general contractors, subcontractors, owners, and sureties.

Pena also encourages attorneys at her firm to engage in pro bono opportunities.

Pena’s practice is located in Round Rock, north of Austin, but she has handled cases all over the state, including Dallas, Houston, Lubbock, and McAllen.

“Ms. Pena goes above and beyond to provide the best legal services possible and is constantly working on perfecting her practice,” Ventress wrote.

Larry F. York Mentoring Award: Judge Jan Soifer

The Larry F. York Mentoring Award is given to a local lawyer or judge who has demonstrated exceptional skill and generosity in mentoring younger members of the bar. This award was created to pay tribute to Larry York, who encouraged many young lawyers in Travis County to achieve professional and personal excellence, with integrity, grace, and humor. Nominees must have practiced at least 10 years and have served as role models and counselors to other lawyers, distinguishing them-

selves as leaders of their profession while fully embracing life’s experiences.

Judge Jan Soifer was nominated by Elliott Beck, staff attorney for the 345th Civil District Court.

“I don’t know anyone else who consistently mentors as many law students and young lawyers as she does, both formally and informally,” Beck wrote in his nomination.

For several years now, Judge Soifer has simultaneously mentored a first-year law student through The University of Texas School of Law’s 1L Mentoring Program; a young female lawyer through the Travis County Women Lawyers’ Association mentoring program; and a young lawyer from the Lloyd Lochridge Inn of Court’s mentoring program.

“Even during the pandemic, Judge Soifer actively served as a resource for these mentees, meeting outside for a chat, going on hikes or bike rides, or chatting on Zoom,” Beck wrote.

Since taking the bench in January 2017, Judge Soifer has recruited law-student interns most semesters and maintains professional relationships with them.

She never misses an opportunity to swear in these former interns when they pass the bar, and is always available to provide career advice.

“She gets regular requests from middle and high school classes to speak or, on occasion, borrow her courtroom,” Beck wrote. “Such requests are always met with an enthusiastic, ‘Of course!’”

Judge Soifer also counsels judicial candidates and new judges in how to run strong campaigns and how to approach judging, either in general or regarding specific cases.

“I am awestruck by the patience, kindness, and empathy with which Judge Soifer approaches her role as my boss and as a jurist,” Beck wrote.

Regina Rogoff Award: Raymond Winter

The Regina Rogoff Award is given annually to an attorney in Travis County that has demonstrated outstanding service in the public/non-profit sector. This award was created as a lasting tribute to the career achievements of Regina Rogoff, who started with Legal Aid of Central Texas (now Volunteer Legal Services of Central Texas) in 1973 and served as its executive director for 19 years.

Raymond Winter was nominated by David Duncan, senior attorney at the Texas Alcoholic Beverage Commission.

“[Winter] has been an exemplary public servant for decades,” Duncan wrote in his nomination, going on to call Winter a fierce and dedicated enforcement attorney at the Texas Natural Resource Conservation Commission, now known as the Texas Commission on Environmental Quality.

For 15 years, Winter worked in the Civil Medicaid Fraud Division of the Texas Attorney General’s Office, eventually becoming chief of that division.

“[Winter] has also mentored many young attorneys and guided them to successful careers throughout the state,” Duncan wrote.

Winter has also served as an infantry officer in the U.S. Army Reserve and the Texas National Guard.

He was appointed inspector general of Texas Health and Hu-

man Services on Oct 2., 2023.

“[Winter] will no doubt leave his indelible legacy on that office as well,” Duncan wrote.

Congratulations to all the award winners! AL