Austin Lawyer, September 2023

SEPTEMBER 2023 | VOLUME 32, NUMBER 7

Texas Lawyer’s Best Austin CLE Provider for 2023: The Austin Bar Association

The Austin Bar Association has been chosen as the best CLE provider in Austin by Texas Lawyer for 2023.

The decision was based on a poll conducted by Texas Lawyer of their readers. The Austin Bar ranked as the number one CLE provider in Austin.

The Austin Bar previously ranked as the number two CLE provider in Austin in 2022.

“We’re very grateful to Texas Lawyer for this distinct recognition,” said Austin Bar Executive Director DeLaine Ward. “Most of all, we’re grateful to our wonderful members, who spread the word that the Austin Bar is the premier legal association and CLE provider in Austin.”

The Austin Bar Association has been providing legal education and networking opportunities in the Austin legal community since 1893.

Among our 27 sections are: Civil Litigation, Eminent Domain, Entertainment & Sports, and our new Privacy Law Section.

For a limited time, join the Austin Bar Association for 2024 and get the rest of 2023 free.

You’ll get immediate access to all member benefits, including:

• Member meeting space at Hilgers House;

• Notary services provided by Austin Bar staff;

• Court Resource Guide available exclusively to Austin Bar members;

• 100+ hours of CLE online;

• Designated parking at the Travis County Civil and Family Courts Facilit;

• Physical and digital editions of Austin Lawyer;

• The weekly Bar Code newsletter;

• Access to the Austin Bar’s online CLE library;

• Access to the Austin Bar’s free app for iPhone and Android;

• Jury trial court schedules sent through the Austin Bar app;

• Discounted rates to attend Austin Bar CLEs;

• and much more! AL

I’m not sure why I waited so long to get it set up.

AU ST INL AW Y ER AL AL

FEATURED ARTICLES

1 Texas Lawyer’s Best Austin CLE Provider for 2023: The Austin Bar Association

10 Congratulations to Austin’s 50-Year Lawyers!

11 2023 Austin Bar 100 Club Members

20 Watch Out for the Corporate Transparency Act

28 Amicus Briefs Filed in Support of Texas Man on Death Row for Daughter’s Death

30 Legislature Strips Austin’s Third Court of Appeals of Significant Jurisdiction

34 Two Bills Endorsed by Chief Justice Hecht Signed Into Law

36 Decriminalizing Mental Health in Travis County: Part 2

42 Expanding Access to Estate Planning is Important

DEPARTMENTS

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NEWS & ANNOUNCEMENTS

It’s Official—Join the Austin Bar’s New Section! Interested in learning about data privacy law? Join the Austin Bar Association’s new Data Privacy Law Section! Chaired by the first chief privacy officer for the State of Texas, Elizabeth Rogers, this section focuses on the far-reaching effects data privacy has on every aspect of our society.

UPCOMING EVENTS

SEPT. 11 Veterans’ Legal Advice Clinic Austin VA Outpatient Clinic 7901 Metropolis Drive

Interested in volunteering? Contact Doug Lawrence at doug@austinbar.org.

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AUST INL AW Y ER AL AL

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

©2023 Austin Bar Association; Austin Young Lawyers Association

EXECUTIVE OFFICES

712 W. 16th Street

Austin, TX 78701

Email: austinbar@austinbar.org

Website: austinbar.org

Ph: 512.472.0279

DeLaine Ward Executive Director

Debbie Kelly Associate Executive Director

Rachael K. Jones Editor-In-Chief

Billy Huntsman Managing Editor

Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701.

Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar board of directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. District Court for the Western District of Texas and the Texas Third Court of Appeals; CLE opportunities; members’ and committees’ accomplishments; and various community and association activities.

The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association board of directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement.

Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed above. For editorial guidelines, visit austinbar.org in the “About Us” tab.

Jaynie Badgett

Liz Duggan

Mark Pryor

Rick Cofer

Garrett Emerson

Ramey Ko

Alyse Munrose

Jeffrey Connelly

Geoffrey Puryear

Natalia Tsokos

Learn About Mentor/Mentee Opportunities

BY JUSTICE CHARI L. KELLY, THIRD COURT OF APPEALS

We can all think of a time in our careers when a mentor made a difference. Whether it was advice on how to handle a deposition, what to wear to a job interview, or to how to ask for a raise, the guidance of a lawyer who had been there before made all the difference in the world. From retired Chief Justice Woodie Jones to Professor Tracy McCormack and past Austin Bar President JoAnn Merica, I have been lucky enough to be surrounded by mentors to help me along the way during my career.

BE A MENTOR

Mentorship doesn’t require a career-long commitment; it can be something as easy as a coffee or lunch. But it does require accessibility, authenticity, and honesty.

I remember Woodie Jones sitting across from me at the Spaghetti Warehouse at an Inn of Court mentorship lunch (now 15 years ago) and simply saying, “I am Woodie Jones, and I am running to be the chief of the Third Court of Appeals. Chari, what do you want to do?” That moment made me feel instantly at ease and inspired. I never would have approached him and asked for his guidance, but when he opened himself up to hear about my goals, it changed the dynamic. It gave me access to him as a mentor. He was authentic with me about his past career experiences and how they shaped his decisions. And finally, he gave, and continues to give, honest feedback about my career. Ironically, years later he would cover for me at the Third Court of Appeals when I went on maternity leave for the birth of my daughter.

With that example in mind, think about ways in which you can open yourself up to be a mentor to a less experienced attorney. You can start by attending an Austin Bar event and, rather than chatting with the old familiars, strike up a conversa-

tion with a younger attorney. You’ll see them off to the side, wondering if they should have attended since they are new to the profession and don’t know anyone. Offer to take a newer coworker for coffee. Also remember that lawyers of any age can be sustaining members of AYLA and attend their events—another great place to find a mentee.

FIND A MENTOR

If you are looking for a mentor, first start by making a list of the lawyers you admire. It can be for any reason, whether it’s how they argued a case or how they dressed for the argument. Then ask them if they’d be willing to meet with you. Most lawyers are willing to share their experiences (many won’t stop talking about them). I once asked a local lawyer to lunch and started off the conversation with, “You have my dream job—how can I be like you?” It led to a wonderful conversation.

If someone doesn’t immediately respond to you, don’t be offended and have a little patience. The longer you are in this profession, generally the busier you are. Reach out again. Your email or call may have just been lost in the shuffle of a day in the life of a litigator. And if they don’t have time, thank them for their honesty and contact someone else.

RESOURCES

If you want more help getting matched with someone either as a mentor or mentee, there are several local programs in town that offer formal mentorship programs:

Travis County Women Lawyers’ Association matches Mentors (licensed five years or more) with a Mentee in their first five years of practice according to respective backgrounds and legal interests. The Mentors and Mentees will develop a mentoring relationship throughout the year and will be able to discuss career and personal goals, as well as methods to improve legal skills, adjust to the challenges of law practice,

and explore new legal career options.

The nine-month program requires a commitment of about one hour per month and will consist of alternating lunch CLE programs and Mentor-Mentee small group meetings. The program begins in September 2023 and will conclude in June 2024.

Any TCWLA member interested in participating as a Mentor or as a Mentee should visit tcwla.org or email co-chairs Neha Paymaster at npaymaster@emaustin.com or Sherine Thomas at sherine@sherinethomaslaw.com. Application materials must be submitted by Sept. 15, 2023.

The University of Texas School of Law matches local Texas Law alumni with 1Ls in their spring semester of law school. The program runs from January to May, begins with a reception to meet your mentee, and includes resources and events for connecting throughout the semester. You can sign up or learn more at https://law.utexas. edu/mentoring/or by emailing mentoring@law.utexas.edu. Applications open in the fall.

The Texas Board of Law Examiners seeks local attorney mentors in all practice areas for Texas bar candidates who have a probation-

ary license. Mentors should have practiced for at least five years and must meet with their mentee every two weeks during the probationary period. Please contact Austin Bar Executive Director DeLaine Ward at delaine@austinbar.org for more information.

Young Women’s Alliance (YWA) Connect Program connects women who are established community leaders and professionals with YWA members to help empower the next generation of female leaders. The program includes a Mentorship Training Program, Mentor/Mentee networking events, and a YWA Slack group to help YWA Connect participants to learn from one another.

Applications open in September. If you are interested in participating, visit https://youngwomensalliance. org/ywa-connect/ or contact the Senior YWA Connect chair, at ywaconnect@youngwomensalliance.org.

BRIEFS

NEW MEMBERS

The Austin Bar welcomes the following new members:

Alyssa Arellano

Melanie Brahm

Geoffrey Brow

Paul DiFiore

Madolyn Falone

David Golden

Xiaotong Guan

Brittany Harner

Tiffany Harrod

Stephanie Holan

Ella Icard

Daniel Kim

Rachel Messer

Caroline Morrison

Hayat Nassour

KUDOS

Congratulations to Texas Supreme Court Justice Jeff Boyd, who was awarded a Texas Young Lawyers Association President’s Award of Merit at the State Bar of Texas’ annual meeting.

Congratulations to Perkins Coie LLP for being named one of the best places to work by Austin Business Journal. Based out of Seattle, Wash., the Austin office is managed

ton Fischer of Goranson Bain Ausley, who was named Austin’s Lawyer of the Year in Collaborative Law: Family Law in Austin by Best Lawyers.

Congratulations to Robert O’Keefe, who recently started a mediation practice. Robert has mediated a variety of commercial disputes and stands ready to help parties reach a resolution. He also has an intellectual property law practice, including experience in

tact Robert at (512) 423-9806 or robertmokeefe@gmail.com.

Congratulations to Armin Salek, chair of the Austin Bar’s Law-Related Education Committee and executive director of the Youth Justice Alliance, who was awarded a Texas Young Lawyers Association President’s Award of Merit at the State Bar of Texas’ annual meeting.

Congratulations to Mike Slack

partners:

associate attorneys:

ABOVE (from left): Boyd, Fillmore, Fischer, O'Keefe, Salek, Slack.

Arielle Rosvall, Coleen Kinsler

Congratulations to Austin’s 50-Year Lawyers!

The Austin lawyers below were honored for their 50 years of service to the profession at the State Bar of Texas’ annual meeting.

Anita Ashton

Karen Johnson Butler

Thomas William George

David Biggs Kultgen

Hon. Jan P. Patterson

Judge Bob Perkins

Jimmy Altman

John C. Augustine

Ron Dale Betz

Evelyn Hudson Biery

William P. Boone

Dick Terrell Brown

J. Winston Chapman, Jr.

Carol Couch Clark

Gary J. Cohen

Mark Allen Cohen

Hector De Leon

Jack Kelly Dillard

J. Ferris Duhon

Nicholas Duncan

Osborne J. Dykes, III

Harry F. Faulkner, III

Dillon J. Ferguson

Robert Lynn Frederick

Michael D. Ginsberg

Fabian S. Gomez, III

Russell R. Graham

Malcolm N. Greenstein

John Pierce Griffin

Jack Wallace Gullahorn

Edward Keith Gurinsky

Mark J. Hanna

James C. Harrington

R. Alan Haywood

Daniel W. Herd

David W. Hilgers

Thomas S. Hoekstra

Susan Jean Hollon

Ronald G. Houdyshell

C. Wayne Huffman

Stanley M. Johanson

Cary D. Jones

Theresa Ann Kraatz

Jack W. Latson

Nathan H. Leistico

Philip R. Lerway

Jerry Douglas Lindauer

Jimmie Mathews

Garry P. Mauro

R. Michael McCauley

R. Douglas Muir

Barry Keith Odell

William G. Owens

Larry Parks

James C. Phillips

Robert C. Presley

William Quick

Joseph M. Riddell, III

Charles Riles Roberts

Owen L. Roberts

Susan Ruth Roberts

Victor Rogers

Regina Lynn Rogoff

Joe James Sawyer

Judge Michael James Schless

Michael G. Shirley

Sarah J. Shirley

Craig Hinman Smith

Langdon M. Smith, Jr.

Terral R. Smith

Janet Stockard

Joe Clayton Strange

David Homer Thornberry

Thomas Van Zandt

Thomas F. Virr

B. J. Walter, Jr.

Joseph P. Webber

Richard Barr West

Ralph B. Weston

Jim D. Wiginton

Duncan Morris Wilder

Mary Anne Wiley

W. Roger Wilson

Larry W. Wise

2023 Austin Bar 100 Club Members – Thank You!

The Austin Bar Association is proud to recognize our 2023 Austin Bar 100 Club Members. The following firms, government agencies, organizations/schools, and corporate legal departments have 100-percent attorney membership in the Austin Bar.

The Austin Bar 100 Club is a distinguished membership that reflects a commitment to the advancement of the legal profession and involvement in the community. The Austin Bar 100 Club consists of firms with four or more attorneys that have 100-percent attorney membership in the Austin Bar. Recognition is free and given to Austin Bar 100 Club members at austinbar.org, in Austin Lawyer, and in our Bar Code e-newsletter.

The Austin Bar 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s membership due to changes in attorney rosters each year.

It’s not too late! To become a 2023 Austin Bar 100 Club member, submit your request via email and include a list of all lawyers in your Austin-area office to Billy Huntsman, billy@austinbar.org. Your list will be verified with our member records, and if your firm is eligible, it will be added to the 2023 Austin Bar 100 Club!

Thank you for your support of the Austin Bar Association!

• Alexander Dubose & Jefferson LLP

• Allensworth Law

• Almanza, Blackburn, Dickie & Mitchell LLP

• Andrews Myers PC

• Armbrust & Brown PLLC

• Barnes Lipscomb Stewart & Ott PLLC

• Barnett & Garcia PLLC

• Barron, Adler, Clough & Oddo

• Blazier, Christensen, Browder & Virr PC

• Board of Law Examiners

• Bollier Ciccone LLP

• Boulette Golden & Marin LLP

• Bracewell LLP

• Brim, Robinett Cantu & Brim

• Brink Bennett Pargaman Atkins & Sanchez

• Burnett Turner PLLC

• Burns Anderson Jury & Brenner LLP

• Butler Snow LLP

• Cain & Skarnulis PLLC

• Cantilo & Bennett LLP

• Chamberlain - McHaney

• City of Austin Law Department

• Coffin Renner LLP

• Coldwell Bowes LLP

• Cook Brooks Johnson PLLC

• Cornell Smith Mierl Brutocao Burton LLP

• Dalrymple, Shellhorse, Ellis & Diamond LLP

• Davis & Wright PC

• DeShazo & Nesbitt LLP

• Doyle & Seelbach PLLC

• DuBois, Bryant & Campbell LLP

• Dykema Gossett PLLC

• Eichelbaum Wardell Hansen Powell & Munoz PC

• Enoch Kever PLLC

• Evertson & Sanchez PC

• Friday Milner Lambert Turner PLLC

• Fritz, Byrne PLLC

• Giordani Baker Grossman & Ripp LLP

• Gjerset & Lorenz LLP

• Goranson Bain Ausley

• Graves, Dougherty, Hearon & Moody

• Gray & Becker PC

• Greenberg Traurig LLP

• Hanna & Plaut LLP

• Herring & Panzer LLP

• Hopper Mikeska PLLC

• Howry, Breen & Herman LLP

• Jackson, Sjoberg & Townsend

• Kaplan Law Firm PLLC

• Kelly Hart & Hallman LLP

• Kirker Davis

• Kuperman, Orr & Albers PC

• Lloyd Gosselink

• Locke Lord

• Martens, Todd & Leonard

• Martin, Disiere, Jefferson & Wisdom LLP

• McGinnis Lochridge LLP

• McKool Smith PC

• McLean & Howard LLP

• Metcalfe Wolff Stuart & Williams LLP

• Minton, Bassett, Flores & Carsey PC

• Mitchell, Williams, Selig, Gates & Woodyard PLLC

• Munsch Hardt Kopf & Harr PC

• Naman Howell Smith & Lee PLLC

• National Trial Law

• Noelke Maples St. Leger Bryant LLP

• Osborne, Helman, Scott, Knisely & Stanton LLP

• Pillsbury Winthrop Shaw Pittman LLP

• Potts Blacklock Senterfitt PLLC

• Reed Claymon Meeker Krienke & Spurck PLLC

• Reeves & Brightwell LLP

• Richards Rodriguez & Skeith LLP

• Richie & Gueringer PC

• Scott Douglass & McConnico

• Shearman & Sterling LLP

• Sheehy, Ware, Pappas & Grubbs PC

• Slack Davis Sanger LLP

• Soltero Sapire Murrell PLLC

• Streusand, Landon, Ozburn & Lemmon LLP

• Texas Comptroller of Public Accounts

• Texas Department of Motor Vehicles

• Texas Workforce Commission

• The Carlton Law Firm PLLC

• The Chapman Firm PLLC

• The Supreme Court of Texas

• Third Court of Appeals

• Thompson Coe

• Thompson Salinas & Londergan LLP

• Travis County Attorney’s Office

• Travis County Civil Court

• Travis County Criminal Court

• Travis County District Attorney’s Office

• Travis County Office of Child Representation

• Travis County Probate Court #1

• Weisbart Springer Hayes LLP

• Winstead PC

• Wright & Greenhill PC

Grammar in Real Cases

Passives, Apostrophes, and Commas

WAYNE SCHIESS | TEXAS LAW | LEGALWRITING.NET

Legal writers should always aim for grammatically correct prose. Why? To me, the key reason is to establish and maintain your credibility: When readers see that you know how to write correctly, they are also likely to believe that you stated the facts and law correctly and presented accurate, valid arguments, explanations, or advice.

But occasionally, grammar itself becomes an issue in a case. Here are some grammatical matters that made it into caselaw, including one that made headlines.

Although using the passive voice is not a grammar error, using it unwisely can have bad consequences. In one case, a due-process claim written in the passive voice failed to identify who did the “assuring” in the following statement from the complaint: “She was assured that she would continue on the job as long as she performed satisfactorily.” As a result, the judge dismissed that claim.1

In another case, a lawyer used apostrophes inconsistently in a settlement offer before trial— sometimes Plaintiffs and sometimes Plaintiff’s. The court said, “The offer was apostrophe-challenged, creating ambiguities…” Thus, the offer failed to satisfy the particularity requirement, and the court reversed an award of attorney’s fees.2

One case involved a comma splice—joining independent clauses with only a comma, when a period, semicolon, or conjunction is called for. A federal district judge, attempting to apply state law, noted, “The Supreme Court of South Dakota first recognized a cause of action for insurance bad faith in [Champion]. The published version of the Champion case unfortunately…employed a comma splice in a key passage, creating a confusing standard.” 3

And then there’s a serial-comma case that made some headlines in 2018.4 Under Maine law, overtime-wage laws do not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of: [certain products].5

The question: Is “packing for shipment” one activity, and “distribution” a separate activity? That would be correct if there had been a serial comma after “shipment.”

Or is the activity, “packing for shipment or distribution”? That could be correct if the drafter was a practitioner of the serial comma but had intentionally omitted it because “packing for shipment or distribution” was intended to be a single activity.

The specific question before the First Circuit was about truck drivers: If distribution is a separate activity, the drivers are not entitled to overtime pay. But if the activity was “packing for shipment or distribution,” the drivers are entitled to overtime pay because drivers don’t pack; they distribute.

The court declined to apply Maine’s Legislative Drafting Manual, which calls for omitting the serial comma—a common approach, especially in journalism.

That would have made “packing for shipment” a separate activity from “distribution,” and the drivers would not be entitled to overtime pay.

Instead, the court relied on parallelism, pointing out that the listed activities were all gerunds (-ing) except for distribution, and as a result, distribution was not a separate activity, but a part of the “packing” activity.

Treating “packing for shipment or distribution” as a single activity means that the list lacked a conjunction: the “or” in “packing for shipment or distribution” was part of that single activity and could not serve as the conjunction in the larger list.

Can you have a list without a conjunction before the last item, even if you don’t use a comma?

Yes, you can, although doing so is a rhetorical technique called “asyndeton.” Asyndeton means creating a list but omitting the coordinating conjunction: The flag is red, white, blue (omitting “and”). So, although the court expressed some distaste for the idea, it implicitly accepted asyndeton as a legitimate drafting practice.6

Are you aware of other cases involving grammar? I’d love to hear more about them: wayne@legalwriting.net. AL

FOOTNOTES

1 Ponder v. Cnty. of Winnebago, 2021 WL 3269842, *7, *12 (N.D. Ill. Sept. 30, 2021).

2 Bradshaw v. Boynton-JCP Assocs., 125 So. 2d 289, 289, 290 (Fla. Dist. Ct. App. 2013).

3 Anderson v. W. Nat. Mut. Ins. Co., 857 F. Supp. 2d 896, 903 (D.S.D. 2012).

4 An Expensive Dispute About Serial Commas, ABA Journal (May-June 2018) https://www.americanbar.org/ groups/real_property_trust_estate/ publications/probate-property-magazine/2018/may-june-2018/an-expensive-dispute-about-serial-commas/.

5 Me. Stat. tit. 26 § 664(3)(F).

6 O’Connor v. Oakhurst Dairy, 851 F.3d 69, 71, 73, 76, 80-81 (1st Cir. 2017).

Cloud Technology Myth-Busting: 3 Truths About the Cloud’s Impact on Law Firm Efficiency

By: Morgan Martinez, Content Manager, LawPay and MyCase

Times are a-changin’

Most lawyers are transitioning data storage and essential workflows to the cloud in this digital age. Yet, some attorneys are still hesitant to take the plunge. This reluctance often stems from misinformation or a lack of clarity around cloud technologies’ benefits, cost, and ease of use. Below, we’ll correct the six most common myths about cloud technologies.

Myth: Cloud software isn’t secure

A locked filing cabinet or a password-protected computer folder may seem like a secure document storage solution. But can it compete with bank-grade security?

The best SaaS tools use 256-bit encryption—the same type used by banks and financial institutions. In addition, this software allows you to control access to confidential information and track who accesses files.

You can also mitigate the risk of lost data with automatic updates. That means no more worrying about losing valuable files if a computer goes down.

Myth: Cloud technology is expensive, especially for smaller firms

SaaS software allows solo practitioners, small, and mid-sized firms to access resources that may otherwise be cost-prohibitive. For example, you may not be able to afford an in-house accountant, but you can use legal accounting software to track your law firm’s finances, reconcile transactions, and stay compliant when managing trust accounts.

Many of these SaaS tools are very affordable because they’re offered on a subscription basis—typically monthly or annually. This pricing structure offers a suite of benefits, such as smaller, consistent fees and the flexibility to scale to your firm’s individual usage.

Myth: Cloud software isn’t worth it

Also known as “cloud technology won’t impact our bottom line that much, anyway.” No disrespect, but we beg to differ.

• Law firms that accept online payments get paid 32% faster than those that don’t.

• More than 60% of people said their law firm collected more money due to online payment processing software.

• 54% of firms captured more leads using online (software-enabled) client intake forms. Additionally, 94% of legal professionals said document management software made document sharing easier, and 92% believed it facilitated document collaboration.

• Attorneys who use SaaS tools see a 38% average increase in caseloads and gain 3+ billable hours per day

What does this mean?

Using everyday legal SaaS tools is just as simple. Most importantly, these tools can make your life easier and your firm more efficient and profitable.

Schedule your demo of LawPay at lawpay.com/austinbar. This online legal payments solution is trusted by more than 150,000 lawyers, and LawPay and MyCase seamlessly integrate, so you can manage your caseload and securely accept payments all in one place.

“Information

is power, the not knowing is devastating.”

Bringing Vegas to Austin: Relive the Austin Bar/AYLA Leadership Academy Casino Night Fundraiser

On June 24, people from across the legal community gathered at Chateau Bellevue to laugh, connect, and even do a little “gambling.” Fully equipped with poker, blackjack, and roulette, the Austin Bar/Austin Young Lawyers Association’s Leadership Academy hosted a Casino Night and Silent Auction that transformed the downtown Austin venue into a casino on the Vegas Strip.

The Austin Bar/AYLA Leadership Academy was established to assist Austin-area lawyers in making a difference in our community, serving the Bar, and promoting professional development. Each year, a class of approximately 2030 members is selected from applications submitted by lawyers of all areas of practice, firm size, and levels of experience. The class curriculum includes informative articles on leadership, as well as in-person discussions with community leaders who share their thoughts and stories about leadership. To wrap up each class year, the Leadership Academy is tasked with completing a class project that benefits the Austin community. This year, after researching a number of well-deserving organizations, the class chose to host a fundraising event for the Youth Justice Alliance.

The Youth Justice Alliance is an Austin-based non-profit with a focus on making a difference early in students’ lives. Specifically, the Youth Justice Alliance is designed to identify aspiring first-generation lawyers in high school and engage them with four years of experiential learning, mentorship, and financial support to help them overcome common barriers that can prevent those students from achieving successful legal careers. The Youth Justice Alliance was established by Armin Salek, who has received several accolades for his efforts, including the Rather Award for Education Innovation in 2019. As Salek would tell you,

the Youth Justice Alliance aspires to make a difference and spark a change in a profession that often struggles to serve an increasingly diverse society. The following student testimonials describe the amazing opportunities these students are able to have through the organization:

“As an undergraduate aspiring to become the first lawyer in my family, I have learned so much from my involvement in the Youth Justice Alliance,” said Sofia K. “I have participated in moot court, observed a jury trial, and made connections in the legal community.”

“The Youth Justice Alliance has provided me with invaluable first-hand legal experiences, including opportunities to shadow a jury selection process, observe closing arguments, and meet with a district court judge,” said Tracy O.

To learn more about the Youth Justice Alliance and the great work its members are doing, please visit: https://youthjusticealliance.org.

Being a non-profit itself, the Austin Bar/AYLA’s Leadership Academy leaned heavily on the local community to support the

event. For months, the class’s fundraising committee reached out to leaders within our city, and they certainly showed up. Law firms, legal vendors, fan-favorite bars and restaurants, and many more donated. Approximately $16,000 was raised. The event would truly not have been able to succeed as it did without the generous support of so many who saw the value of Youth Justice Alliance’s vision.

As you might expect, the event began long before June 24. The

Leadership Academy planned for months—finding the perfect venue, picking the right date, securing the right vendors, you name it. The class formed seven committees to ensure the event’s success, with each committee appointing a leader to represent their team on an executive committee. All committees played an integral role. The Venue Committee called and met with dozens of venues over several weeks before selecting the perfect spot—Chateau Bellevue.

(L-R): 250th District Court Judge Karin Crump; Youth Justice Alliance Executive Director Armin Salek; and Katherine Obando, attorney at Bollier Ciccone LLP.

The Entertainment Committee found and worked with the Casino Knights for casino games, Justin Hargrove for live music, Alvies to provide patrons with boot fittings and a wide array of boot styles and selections, and the Jigglewatts, which provided two authentic Vegas showgirls. The Advertising, Fundraising, and Silent Auction committees got the word out and raised approximately $30,000 in sponsorships, ticket sales, and donations from across the community. The Food and Beverage Committee worked with Shiner, Tequila 512, Tito’s Vodka, Genius Gin, Treaty Oaks, Austin Wine Merchant, and Dripping Springs Vodka to garner enough donations that, even after a three-hour open bar, there was plenty to spare. Finally, the Charity Outreach Committee worked directly with the Youth Justice Alliance to make sure their message was spread early and often.

On the night of the event, doors opened at 7 p.m. However, the Leadership Academy arrived hours before, working to create an atmosphere where one could step out of the Texas heat and into the heart of a Vegas casino. As showtime neared, the venue looked incredible. Banners hugged the window frames. Diamond- and club-shaped decorations twirled down from the ceiling. Casino games spread the length of the venue hall with dealers at the ready. All that was needed were people dressed to the nines ready to have a good time. And the people did not disappoint. Colorful suits and sequined dresses soon filled the room. Attorneys,

judges, and vendors all made appearances.

At the outset of the event, heartfelt messages were provided by Judge Karin Crump and Armin Salek that reminded everyone of the important work being done by the Youth Justice Alliance. Thereafter, patrons quickly filled the

LAWYERS ASSOCIATION

seats of the various tables for some lighthearted “gambling” and made their way back to the silent auction to make their bids.

The evening seemed to go by in a flash—attendees grabbing a quick photo with the Vegas showgirls, trying not to crap-out at the craps table, and trying one of the

event’s recommended cocktails. Before you knew it, three hours evaporated. And, while a few folks had a brief scare exiting the elevator, the fun and fellowship shared throughout the evening, along with the support generated for a local charity, wouldn’t be traded for the world. AL

First AYLA Trial Institute a Success

AYLA’s inaugural Trial Institute proved to be a great success. The soldout event took place on June 30, 2023, in the Ceremonial Courtroom of the new Travis County Civil & Family Courts Facility. AYLA partnered with the American College of Trial Lawyers to host a day of honing trial skills using materials and testimony from the real-life espionage trial of Julius and Ethel Rosenberg of 1951.

The day included some of Austin’s finest trial lawyers performing authentic demonstrations of opening statements, direct examinations, cross examinations, and closing arguments, as well as a lecture and a panel discussing each trial skill for a full day’s worth of MCLE credit.

AYLA would like to thank Robby Alden and the Austin Chapter of the American College of Trial Lawyers for handling the lion’s share of the substantive aspects of the event; the Civil Litigation section of the Austin Bar for sponsoring the event; Burgess Law PC for sponsoring the afternoon refreshments; the law firm of Butler Snow LLP for sponsoring and hosting the happy hour reception after the event; the Travis County judiciary as a whole for the use of the Ceremonial Courtroom and court staff; and Debbie Kelly and the Trial Institute Committee for

making the event happen.

AYLA would also like to thank the 27 judges and trial lawyers who acted as demonstrators, lecturers, and panelists for the event—including Shannon Ratliff, Heidi Coughlin, Judge Lee Yeakel, Eric Nichols, David Gonzalez, Judge Lora Livingston, Blair Leake, Steve McConnico, Karen Burgess, David Boyce, Paul Sandler, Judge Karin Crump, Dan Richards, Judge Alan Albright, Dicky Grigg, Judge Jan Soifer, Carl Pierce, Judge Karen Sage, Kathy Snapka, Judge Susan Hightower, David Deaderick, and Judge Dustin Howell.

Please contact Debbie Kelly at debbie@austinbar.org if you are interested in participating in future AYLA Trial Institute events. AL

UPCOMING EVENTS

SUNDAY, SEPT. 17

CASA Superhero Run

7 a.m.

Circuit of the Americas 9201 Circuit of the Americas Blvd.

THURSDAY, SEPT. 21

AYLA Judicial Reception

5:30 p.m. – 7:30 p.m. The Austin Club 110 E. 9th St.

TUESDAY, OCT. 10

AYLA Members CLE

Helpful Tips and Common Mistakes - Travis County Central Docket

Speaker: Warren Vavra Noon – 1:00

Hilgers House 712 W. 16th St.

(L-R): Karen Burgess, David Gonzalez, Dan Richards, Judge Karen Sage, Robby Alden, Dicky Grigg, Judge Jan Soifer, Paul Sandler.

Spotlight on Diversity

Meet the Members of the Austin Bar’s DEI Committee

Ketan Kharod

Ketan Kharod is of-counsel at Guerrero & Whittle, PLLC, representing plaintiffs in personal injury and environmental justice litigation. Ketan first came to Austin in 1997 to attend UT Law School, and then was fortunate to clerk for U.S. District Judge Sam Sparks after earning his J.D. in 2000. After his clerkship, Ketan was a briefing and litigation attorney on behalf of clients injured by asbestos and other toxic exposures, and for whistleblowers in qui tam litigation, before joining Guerrero & Whittle in 2017.

As much as Ketan enjoys being a lawyer, he tries to have a life outside the law, whether as a husband, parent, or community member. He is a former longtime board member of Asian Family Support Services of Austin (AFSSA), which provides culturally specific services to survivors of domestic violence, abuse, and trafficking. From 2016 to 2019, Ketan served as a city councilmember (and, later, mayor pro tem) for the City of Sunset Valley, becoming one of the first Indian-American elected officials in Central Texas. He was a co-founder of the Indian American Coalition of Texas and is a lifetime member of the South Asian Bar Association of Austin (SABAA) and Austin Asian Amer-

ican Bar Association (AAABA). He has also been recognized by the UT Division of Diversity and Community Engagement and the State Bar of Texas—Asian Pacific Interest Section for community service over the years.

Ketan is a vital member of the Austin Bar Association’s Diversity, Equity & Inclusion Committee, whose invaluable contributions to the Equity Summit helped make it a successful and impactful event.

Johnathan Stone

Johnathan Stone is a civil litigator with the Office of the Texas Attorney General as a senior attorney in the General Litigation Division. His practice is primarily administrative, employment, constitutional, and health law. He is board-certified in administrative law.

Johnathan is president of the Austin Black Lawyers Association and a member of the State Bar of Texas Administrative & Public Law Section Council. He is a member and former chair of the SBOT Administration of Rules of Evidence Committee, which is tasked with monitoring and proposing revisions to the Texas Rules of Evidence and related statutes. Johnathan spent three years as a District 9 subcommittee member of the Supreme Court of Texas’ Unauthorized Practice of

Law Committee. He is a fellow of the Texas Bar Foundation and a member of the Texas Bar College.

Johnathan has participated in LeadershipSBOT, Austin City Works Academy, the Leadership Austin EMERGE program, AYLA Leadership Academy, and several SBOT Bar Leaders Conferences. He is a former Texas Young Lawyers Association director for District 9 and member of AYLA.

Johnathan graduated from the University of Missouri, where he majored in history. He met his future wife, Ayeola Williams, in law school at the University of Toledo. They both graduated from law school in 2010. Ayeola is the deputy general counsel at Capital Metro. They have three children: Iman, Ali, and Idris.

April Griffin

April has served as in-house counsel for several state agencies, advising clients on matters pertaining to government procurement, open government law, agency rulemaking, legislative issues, special education, rehabilitative services, employment, and policy issues.

As a solo practitioner, April has handled estate planning, probate, and guardianship matters. She has served as legal counsel for individuals and business entities

handling transactional matters including business development, entity formation, filings, entity status changes, contract review, contract formation, negotiations, breach of contract, and termination issues.

April is a proud supporter of veterans’ rights, having served active duty in the United States Air Force for more than seven years. She is a board member for the Austin Black Lawyers Association Foundation and a council member of the State Bar of Texas Administrative and Public Law Section. April also serves as a commissioner on the Travis County Emergency Services District No. 2.

Kate Lincoln-Goldfinch

Kate Lincoln-Goldfinch is the managing partner of Lincoln-Goldfinch Law and is a preeminent immigration lawyer.  After receiving her J.D. from The University of Texas School of Law, she received an Equal Justice Works Fellowship in 2008, completed at American Gateways. Her fellowship project served detained families seeking asylum. After her fellowship, she began her private immigration-focused practice. Her firm offers family-based immigration, such as green cards and naturalization, deportation defense, and humanitarian cases such as asylum, U

Visa, and VAWA. Everyone at Lincoln-Goldfinch Law is bilingual, has a connection to their passion, and has demonstrated a history of activism for immigrants.

Kate is a former member of the City of Austin’s Commission on Immigrant Affairs, is the pro bono liaison for the American Immigration Lawyers Association Texas Chapter, and serves on the Board of Directors of VECINA, an immigration mentoring organization.

For all the above examples of her dedication to families in need, Kate was one of the recipients of the Travis County Women Lawyers’ Association 2023 Pathfinders awards.

Elliott Beck

Elliott Beck is a staff attorney for the 345th District Court, serving with Judge Jan Soifer since she took the bench in 2017. Prior to working for Travis County, Elliott began his career in civil litigation, where he had the opportunity to represent members of the LGBTQ+ community in civil, family, and employment matters. Elliott served as the chair of the LGBT Section of the Austin Bar Association, which, under his leadership, formed its first scholarship program that continues to this day.

Later, as chair of the LGBT Section of the State Bar of Texas, Elliott focused on connecting and providing resources to LGBTQ+ affinity groups across the state. He and his board also drafted legislative proposals to the State Bar

Stephen Yelenosky

seeking to remove discriminatory laws from the Texas Constitution and Health and Safety Code, and regularly testified at the Capitol on these efforts. Elliott remains a strong statewide voice in support of and advocacy for LGBTQ+ rights.

Elliott is a past chair of the Austin Bar/AYLA Leadership Academy and currently serves on the board of directors of the Austin Bar Association, where he co-chairs the DEI Committee with

Leslie Dippel. This year, the committee successfully planned and presented the first in-person Equity Summit, which registered more than 110 attendees, and looks forward to even bigger numbers next year.

At home, Elliott enjoys time with his husband of five years, Ryan, their greyhound, Minnie, and their chihuahua, Bernie. The whole family loves to eat, and the humans enjoy wine, travel, and exploring the city. AL

Specialists In Professional Liability For Lawyers And Title Agents

Any

Senior District Judge

Watch Out for the Corporate Transparency Act

BY ZACHARY B. WIEWEL AND MARC LIMSIACO, TEXAS TRUST LAW

Some people are terrified of heights. Others are scared of public speaking. What should keep attorneys up at night is a little-known law called the Corporate Transparency Act (CTA).1

The CTA is a new, groundbreaking federal reporting law for business entities that may leave your office inundated with calls from disgruntled clients blaming you for failing to warn them about it. Here’s what you should know.

What is the CTA?

The CTA was enacted on Jan. 1, 2021. It imposes stringent reporting requirements on business entities. You’re likely thinking, “Which ones?”

The answer is most of them.

The CTA applies to any business entity formed with a state’s secretary of state (a “reporting company”), with few exceptions (i.e. more than $5 million in annual revenue, more than 20 employees, etc.). This wide net catches everything from corporations and local businesses to a family-owned limited liability company that holds a rental property. This law also applies to PCs and PLLCs, such as law firms.

In addition to reporting companies, “beneficial owners” must report, as well. A beneficial owner is defined as: (A) anyone with a 25% ownership stake; or (B) someone else who has substantial control over a company (i.e., directors, officers, etc.).2 You will not be alone if you think that definition is vague.

For example, who needs to report if a trust is a beneficial owner? All of the trustees? What about primary or contingent beneficiaries? While we wait for more guidance on this topic, it may be best to err on the side of caution.

Lastly, “applicants” of the business entity have a duty to report also. This would be the individu-

al who filed the formation documents with the secretary of state. While this would include the beneficial owners at times, this could also include lawyers, CPAs, and financial advisers.

It looks as though a few members of Congress must have watched a few too many episodes of Ozark, as the CTA’s stated purpose is to increase transparency in order to prevent money laundering and similar illicit crimes. Unfortunately for some clients, this may destroy the very privacy protections that led clients to form these entities in the first place.

What to report?

Reporting companies must provide the company’s legal name (including trade names), address for the principal place of business, state of formation, tax identification number, and an identifying document from the issuing jurisdiction (i.e. certificate for formation).

The beneficial owners and applicants must provide their full legal names, dates of birth, home addresses, and government-issued photo IDs.

When to report?

Reporting requirements for the CTA begin on Jan 1, 2024. However, when to report depends on the reporting company’s formation date. Reporting companies formed after Jan. 1, 2024, have 30 days after formation to report. Reporting companies formed before Jan. 1, 2024, have one year (until Jan. 1, 2025) to satisfy reporting requirements.

Beginning on Jan. 1, 2025, all reporting companies are subject to the same 30-day deadline.

What if an owner moves?

The reporting company has 30 days to report the new address.

What if the owner gets married and changes their last name?

Again, the company has 30 days to report.

Where to report?

Reporting will be to the Financial Crimes Enforcement Network (FinCEN), which is an office under the Department of the Treasury.

What are the penalties for failing to report?

Failure to comply with the CTA may result in severe penalties for you and your clients. The civil penalties are up to $500 per day and the criminal penalties are up to $10,000 and two years in jail.

Let’s give an example.

Client A is a CFO of a reporting company. Client A moves on Nov. 15, 2025 but fails to notify the company until April 15, 2026. Client A’s delay may result in a roughly $60,000 civil fine for the company.

Let’s give another example to bring this point home:

Client A is the sole member of a limited liability company that owns a rental property. Client A gets married on March 21, 2025, and changes her last name. Client A does not report this name change until April 15, 2026. Client A’s failure to report may result in a roughly $180,000 civil fine.

What can lawyers do?

It would be prudent to start building CTA compliance processes into your own legal practice as soon as possible—2024 is coming quickly. For new clients, it would be helpful to get all of the information that would be reported and ask whether they plan to move residences or get married in the next year. A reminder informing the client to report any changes to you immediately would help, as well.

For former clients, you may want to consider giving them a heads up. A letter informing them of this new law would be a good start, even if you are not going to assist with the CTA reporting. AL

FOOTNOTES

1 87 Fed. Reg. 59,498 (Sept. 30, 2022); 31 C.F.R. § 1010.380.

2 87 Fed. Reg. 59,498 (Sept. 30, 2022); 31 C.F.R. § 1010.380 pg. 11.

Zachary Wiewel (L) and Marc Limsiaco (R) are associate attorneys at Texas Trust Law, an Austin-based estate planning and probate law firm.

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

>FEDERAL PREEMPTION: Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not preempt Texas law charging out-of-state citizens higher tuition than Texas residents, including noncitizens not lawfully present in the country.

Young Conservatives of Tex. Found. v. Smatresk, 2023 WL 4419365 (5th Cir. July 10, 2023)

The IIRIRA’s express preemption provision directs that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State...for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit...without regard to whether the citizen or national is such a resident.”

Undocumented immigrants in Texas are eligible for in-state tuition so long as they meet residency requirements.

A group of nonresident citizens paying out-of-state tuition to the University of North Texas (UNT) sued UNT officials. The nonresidents did not challenge the tuition

rate undocumented immigrants pay, but rather claimed that the IIRIRA required UNT to charge them no more than resident undocumented immigrants pay.

The district court agreed, concluding that federal law expressly preempted Texas’ tuition law and required Texas to charge all citizens tuition no higher than what undocumented immigrants pay. The district court alternatively held that Texas and federal law conflicted, and so the Texas law was impliedly preempted.

The Fifth Circuit disagreed on both counts. The Court reasoned that the IIRIRA’s express preemption provision does not require a state to offer any benefits to citizens, but instead forbids a state from offering certain benefits to undocumented immigrants. The IIRIRA imposes a prohibition, not a duty.

As the nonresidents challenged only the Texas law imposing outof-state tuition for those who do not have Texas residency, and not the Texas law that allows resident undocumented immigrants to receive in-state tuition, their claims failed.

The Court rejected implied preemption for similar reasons: “[The] problem with Texas’ system relevant to” the IIRIRA, the Court explained, “is that it grants illegal aliens in-state benefits, not that it denies those benefits to U.S. citizens.”

INSURANCE: Insured’s officers and directors qualified as additional insureds under commercial general liability policies, but conduct alleged in shareholder derivative complaint did not qualify as an “accident” under the policies.

Discover Prop. & Cas. Ins. Co. v. Blue Bell Creameries USA, Inc., 2023 WL 4443246 (5th Cir. July 11, 2023).

A 2015 listeria outbreak traced to Blue Bell ice cream shut down its factories and required a nationwide recall of its products. Following substantial financial losses from the outbreak, a shareholder brought a derivative action against Blue Bell’s directors and officers.

Shareholder derivative suits are brought in the name of the company to enforce duties owed to the company. On behalf of Blue Bell, the shareholder alleged that Blue Bell’s officers and directors breached their fiduciary duties of care and loyalty to the company by allowing the outbreak to occur.

The directors and officers sought defense coverage under Blue Bell’s commercial general liability insurance policies. The insurers sued, seeking a declaration that they had no duty to defend the derivative suit.

Blue Bell’s policies provide that “‘executive officers’ and directors are insureds, but only with respect to their duties as officers or directors.” And the policies’ duty to defend is triggered “by an ‘occurrence,’” which is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

The district court granted summary judgment to the insurers. Applying Texas’s “eight-corners rule”—an insurer’s duty to defend is based on: (1) the pleading against the insured in the underlying litigation and (2) the terms of the insurance policy—the Fifth Circuit affirmed.

The Court first held that Blue Bell’s officers and directors qualified as insureds. The Court re -

jected the idea that the officers and directors were not sued “with respect to their duties as officers or directors” under the policies merely because the shareholder alleged the officers and directors breached their fiduciary duties.

The Court read “duties” in the policies as analogous to the officers’ and directors’ scope of employment. As the shareholder’s allegations targeted conduct within the officers’ and directors’ scope of employment under Texas law, they were insureds under the policies.

The Court held, however, that because the shareholder’s suit alleges intentional conduct by the officers and directors, there was no “accident,” and so the suit did not trigger the insurers’ duty to defend. Under Texas law, the Court explained, so long as the underlying complaint alleged facts showing that the injuries “could be reasonably anticipated” to result from the misconduct, the complaint did not allege an accident.

The Court went on to reject several subsidiary arguments made by the insureds. AL

Jason LaFond is an Austin-based appellate litigator with significant experience before the Fifth Circuit. He is senior counsel at Yetter Coleman LLP.

>The following are summaries of selected civil opinions issued by the Third Court of Appeals during June and July 2023. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Aug. 9, 2023.

ADMINISTRATIVE LAW:

Emails with agency staff insufficient to constitute request for hearing.

Udenze v. Johnston, No. 03-2200084-CV (Tex. App.—Austin June 22, 2023, no pet. h.) (mem. op.).

DMV sent Udenze notice of a decision that revoked his dealer license and assessed sanctions. The notice informed Udenze of the requirement and deadline to request an administrative hearing. Although Udenze exchanged emails with DMV staff, Udenze did not request a hearing and the sanctions order became final. DMV denied Udenze’s motion for rehearing. In his direct appeal, Udenze contended that his emails with DMV staff constituted a request for a hearing. The court of appeals observed that “hearing” was not mentioned in any email. Further, Udenze did not challenge in his motion for rehearing DMV’s findings that he failed to request a hearing. The court affirmed.

PUBLIC INFORMATION ACT:

Delay in producing documents amounts to refusal to supply information.

Muir v. University of Tex., No. 03-2200196-CV (Tex. App.—Austin June 22, 2023, no pet. h.) (mem. op.). Muir requested documents from UT. The attorney general concluded UT could withhold certain documents but must disclose the remainder. In response to Muir’s mandamus, UT claimed immunity because it produced all responsive documents other than those withheld under AG’s opinion. The trial court granted UT’s plea to the jurisdiction. According to the court of appeal, Muir’s allegations that UT delayed producing the information for over 180 days from his request and withheld public information contending it was excepted from disclosure demonstrated a refusal to comply with the PIA. The court held that immunity did not bar Muir’s lawsuit. Further, because UT continued to withhold documents, the controversy was not moot. The court reversed and remanded.

ARBITRATION: Non-signatories required to arbitrate residential-construction dispute.

Meritage Homes of Tex. LLC v. Pouye, No. 03-21-00281-CV (Tex. App.—Austin June 23, 2003, no pet. h.) (op. on reh’g) (mem. op.).

Pouye, a subsequent purchaser of a home, sued Meritage for defects in the home’s exterior stucco. Meritage filed a motion to compel arbitration based on the arbitration clause in the contract with the original homeowners. The trial court denied the motion. The court of appeals concluded that subsequent purchasers are bound by the original contract’s arbitration clause under direct benefits estoppel. Under direct benefits estoppel, nonparties must arbitrate claims that depend upon the contract and that do not exist independently from the contract. Thus, the trial court abused its discretion in denying the motion to compel. The court reversed and remanded.

TRIAL PROCEDURE: Trial court abused its discretion in granting motion to withdraw.

Mannas v. Mannas, No. 03-2100288-CV (Tex. App.—Austin June 28, 2023, no pet. h.) (mem. op.).

A month before a March 22, 2021 trial, appellant’s counsel filed a motion to withdraw. The trial court granted the motion on March 12 and ordered that no continuance would be granted. Appellant’s attorney notified her on Friday, March 19 at approximately 2 p.m. of the trial court’s order. Appellant appeared for trial and announced she was not ready and that she needed to hire counsel. The trial court proceeded to trial and denied appellant’s will contest. The court of appeals observed that Rule 10’s requirements to withdraw are mandatory and that Disciplinary Rule 1.15 requires a withdrawing attorney to give the client reasonable notice to allow time to hire other counsel. The court held that the motion to withdraw failed to comply with Rule 10 and counsel failed to timely inform appellant of the trial-court order. Accordingly, the trial court abused its discretion in granting the motion to withdraw and denying a continuance. The court reversed and remanded.

TTCA: Court reverses dismissal of claims against governmental employee.

Lankford v. Abreo, No. 03-2200303-CV (Tex. App.—Austin July 12, 2023, no pet. h.) (mem. op.).

Lankford sued Abreo, a Bastrop County constable, for his failure to comply with statutory provisions relating to the public sale of her property. Vickers, a renter on Lankford’s property, sued Dzienowski, a Bastrop County deputy, who entered Lankford’s property, detained Vickers, and intimidated him into abandoning the property. Both defendants sought dismissal under Texas Tort Claims Act (TTCA) § 101.106. When plaintiffs did not dismiss the employees and name their governmental employers, the trial court dismissed the suit. The court of appeals concluded that

Lankford’s claims were not TTCA claims. Lankford’s claims against Abreo were brought pursuant to statutes with immunity waivers. Vickers’ claims against Dzienowski for false imprisonment challenged conduct within the scope of Dzienowski’s employment. Accordingly, the court reversed the order dismissing Lankford’s claims and affirmed the order dismissing Vickers’ claims.

ADMINISTRATIVE LAW: Court dismisses ruleapplicability challenge.

Tex. Dep’t of State Health Servs. v. Kensington Title-Nevada, LLC, No. 03-21-00370-CV (Tex. App.— Austin July 7, 2023, no pet. h.) (mem. op.).

DSHS issued Kensington a notice of violation for possession of radioactive waste without a license. Kensington sought declaratory relief under the Administrative Act that the rule does not apply to it because it did not possess the waste. The trial court denied DSHS’s plea to the jurisdiction based on its claim that the suit was not a proper rule-applicability challenge. The court of appeals noted that a proper rule-applicability challenge is limited to determining whether a rule is capable of being applied to a factual situation as distinguished from a challenge to a rule’s application to particular facts. Thus, the only permissible inquiry is whether the rule applies to the factual scenario—the possession of radioactive material by an entity that lacks a license. The court concluded that Kensington failed to plead a rule-applicability challenge. The court reversed and dismissed.

TRIAL PROCEDURE: Court reverses trial court’s denial of party’s jury demand.

Brisco v. Kahlden, No. 03-2100618-CV (Tex. App.—Austin July 13, 2023, no pet. h.) (mem. op.).

During 2020 and 2021, a final trial in the parties’ divorce was scheduled six times on the non-jury docket, each time continued. In May 2021, more than 30 days before the then-set June 28 trial, wife filed a jury demand. Husband

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 an owner at Laurie Ratliff LLC.

opposed the request, contending it was solely for delay. The trial court denied wife’s motion to strike the non-jury setting and proceeded with a non-jury trial. The court of appeals observed that wife’s jury demand was presumed timely because it was made more than 30 days before trial. Trial courts, however, have discretion to determine what is a reasonable amount of time. The court held that husband failed to meet his burden to show harm. Accordingly, the trial court abused its discretion in denying wife’s jury demand. The court reversed and remanded.

WILL CONTEST: Court holds affidavit’s statement of beliefs sufficient to raise fact issue.

Castello v. Executor of the Estate of Castello, No. 03-22-00012-CV (Tex. App.—Austin June 23, 2023, no pet. h.) (mem. op.).

Son filed father’s 2012 will for probate. Wife alleged father lacked capacity and sought to probate a 2009 will. The trial court granted son’s motion for summary judgment admitting the 2012

will. In determining whether wife raised a fact question on testamentary capacity, the court of appeals held that wife’s affidavit testimony showed father’s physical and mental decline following a 2006 stroke. The court rejected son’s argument that wife’s affidavit testimony was simply her beliefs and “self-serving and conclusory.” Wife’s affidavit described the facts that formed her conclusions drawn about father’s mental state. Thus, wife presented sufficient evidence to show a fact issue on testamentary capacity. The court reversed and remanded. AL

ficer while in jail and was charged with the offense of harassment by a person in a correctional facility. Prior to trial, Vaughan’s appointed counsel filed a motion asking the trial court to order that Vaughan’s competency be evaluated. The trial court granted the motion and appointed two forensic psychologists to evaluate Vaughan’s competency to stand trial, both of whom concluded that Vaughan was competent to stand trial.

At the beginning of jury selection, the trial court was informed by a transport officer that Vaughan refused to come to court. The trial court inquired about whether Vaughan had “a factual and rational understanding of his surroundings and the purpose of the discussion” with the officer on coming to court, and the officer responded that Vaughan “seemed pretty rational.” Additionally, Vaughan had numerous conflicts with trial counsel, who informed the judge that Vaughan had been abusive to her and had mental-health issues that “impact his behavior quite negatively.” However, she believed that he was competent to stand trial.

proceeded to make several comments disparaging trial counsel, indicating that he wanted to fire her but that the trial court would not let him. Then, throughout the state’s voir dire, Vaughan interrupted the state multiple times and responded to comments made by jury panelists. He behaved respectfully during the remainder of the trial proceedings. At the end of trial, the jury convicted Vaughan, and the trial court sentenced him to 13 years’ imprisonment.

On appeal, Vaughan asserted that the trial court erred by failing to sua sponte convene an informal inquiry into whether he was competent to stand trial. He claimed that the reports by the psychologists, combined with Vaughan’s “bizarre” interruptions and exchanges during voir dire, should have suggested to the trial court that Vaughan was incompetent. The appellate court disagreed.

tent. The court explained that a defendant is generally “presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

A person is incompetent to stand trial only if the person does not have “(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person.”

COMPETENCY

TO

STAND TRIAL: Trial court did not err by failing to sua sponte convene an informal inquiry into whether defendant was competent to stand trial.

Vaughan v. State, No. 03-2200038-CR (Tex. App.—Austin Mar. 30, 2023, no pet.) (mem. op., not designated for publication).

Vaughan spit on a detention of-

The trial court ordered that Vaughan be brought to court. When Vaughan arrived, he informed the trial court that he had recently undergone psychological evaluations and that the results showed that he was “not crazy.” The trial court then asked Vaughan if he had a “factual and rational understanding” of the proceedings, and he responded that he did. When the jury panel entered the courtroom, Vaughan

First, it noted that the trial court arguably did convene an informal inquiry into Vaughan’s competency. The trial court discussed the matter with the transport officer, asked to review the reports by the two psychologists, and listened to the opinion of Vaughan’s attorney. Further, the trial court asked Vaughan if he understood the nature of the proceedings and the allegations against him, and Vaughan indicated that he did. However, even if the trial court did not conduct an informal inquiry, the appellate court could not conclude that the trial court abused its discretion in finding Vaughan to be compe -

Patrick Keel Former District Judge

In this case, the trial court reviewed the reports by the two psychologists, who determined that, although Vaughan had numerous mental-health issues, he was competent before trial, and they based their assessments on the competency factors listed in the Code of Criminal Procedure. Regarding Vaughan’s behavior, the court observed that “Vaughan communicated to the trial court on multiple occasions that he was purposefully acting out because the trial court denied his request for a new attorney.” Moreover, although Vaughan’s behavior was hostile, “the trial court was able to observe Vaughan interact with his attorney and his ability to tell his version of events.” Also, his interruptions during voir dire “were responsive to the topics being discussed at the time.” For these reasons, the court was unable to conclude that the trial court abused its discretion. AL

Zak Hall is a staff attorney for the Third Court of Appeals. The summary below represents the views of the author alone and does not reflect the views of the court or any of the individual Justices on the court.

Mediator Arbitrator

Amicus Briefs Filed in Support of Texas Man on Death Row for Daughter’s Death

Austin attorney Gretchen Sims Sween in May 2023 filed a petition for a writ of certiorari asking the U.S. Supreme Court to conduct plenary review or summarily reverse the Texas Court of Criminal Appeals’ (CCA) decision in January to uphold the conviction of Robert Roberson.1

In 2002, Roberson was charged with capital murder in the death of his two-year-old daughter, Nikki. At trial, Roberson argued that Nikki had fallen out of bed, resulting in subdural bleeding. The State argued that Nikki’s death was the result of shaken baby syndrome (SBS). The court agreed, and Roberson was sentenced to death.

Days before he was scheduled for execution in 2016, the CCA granted a stay of execution based on a filing from Roberson contesting the validity of the SBS testimony.

The CCA sent the case back for review in the trial court in Anderson County. In 2022, that court recommended the CCA deny Roberson relief. In January 2023, the CCA agreed with the trial court.

In 2013, the Texas Legislature had passed Article 11.073 of the Texas Code of Criminal Procedure. According to the statute, relief on an application for a writ of habeas corpus may be granted under various circumstances. Roberson’s application for a writ of habeas corpus was filed under the article’s paragraph d:

“…The court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed…”.

In her petition for a writ of certiorari, Sween writes that, in the 2016 habeas filing, Roberson established:

1) the State relied on an uncontested SBS causation theory to obtain his convic -

tion;

2) each of the SBS premises considered medical orthodoxy in 2003 have since been undermined by evidence-based science;

3) the jury heard misleading, highly prejudicial testimony from one nurse suggesting that Nikki was sexually abused, even though no doctor endorsed that belief; and

4) the combination of Nikki’s undiagnosed pneumonia, medications prescribed to her, and an accidental fall entirely explain Nikki’s condition. But the little the jury heard about Nikki’s medical history was dismissed as irrelevant; the jury did not hear about her severe pneumonia, only identified during re-investigation of the autopsy. Nor did they hear about the lethal quantities of respiratory-suppressing prescription drugs in her system at the time of her collapse.

During the 2016 trial, four doctors testified on behalf of Roberson, agreeing that Nikki’s injuries were consistent with a single impact site, rather than multiple impact sites, as the state argued.

Dr. Janice Ophoven, a licensed M.D. since 1971, board-certified in forensic pathology and anatomic pathology with special training and experience in pediatrics and pediatric pathology, concluded that Nikki’s death should not have been designated a homicide, in part because there is no scientific basis for looking at an impact site and concluding whether it was intentionally inflicted or the result of an accidental fall.

Ophoven said that Nikki’s internal condition simply meant that she had suffered irreversible damage from oxygen deprivation. Ophoven explained that anyone who stops breathing and has their heart stop is at risk for the same

constellation of internal head conditions. If the brain is deprived of oxygen, brain swelling occurs. Then, as pressure against the brain increases, bleeding into the eyes, which are connected to the brain, can occur.

Ophoven was confident that the precipitating event was not “shaking” or “multiple impacts” to the head. She further explained that the state’s autopsy pictures, to which the jury had been subjected, were misleading because they did not reflect Nikki’s condition when she was brought to the ER but were taken after multiple intervening events had affected Nikki’s internal and external condition.

Dr. Ken Monson explained the relevant scientific literature and studies showing that the SBS assumptions about how shaking would cause internal head injuries but no neck injuries have been falsified. He also explained how the laws of physics and modeling are utilized to study the injury-impact of falls with head impacts. Monson explained how a teddy bear, such as that used in a demonstration during Roberson’s trial, weighing less than a pound, is not a comparable model in any relevant respect to a 28-pound toddler like Nikki and thus misled the jury.

Dr. Carl Wigren, a forensic pathologist who has performed over 2,000 autopsies and is a member of the American Academy of Forensic Sciences, concluded that Nikki’s death was not a homicide based on:

(1) the report of a fall off of a bed;

(2) the evidence (CT scans and autopsy photographs) showing only a single impact site to the back of Nikki’s head that was consistent with the report that she had sustained a short fall;

(3) evidence in the toxicology report of potentially toxic quantities of Phenergan/ promethazine, now known

to suppress the nervous system, in Nikki’s bloodstream at the time of autopsy;

(4) evidence that, shortly before her collapse, she had been prescribed Phenergan in two forms and cough syrup with codeine, a narcotic that metabolizes into morphine and further suppresses the nervous system;

(5) evidence that the fall occurred while she was in an unsafe and unfamiliar sleep environment, a bed that consisted of a mattress and box springs propped up on cinder blocks, some of which were sticking out from under the box springs; and

(6) evidence that Nikki had undiagnosed pneumonia.

Dr. Wigren concluded that these factors had come together to cause an “unfortunate accident,” “absolutely not” a homicide, and opined that SBS played no role in causing Nikki’s death.

Dr. Roland Auer, a neuropathologist board-certified in the United States and Canada, who is both a medical doctor and a Ph.D. scientist, the author of a leading neuropathology treatise and over 130 scientific articles in peer-reviewed journals, and a researcher with extensive experience with head trauma, hypoxia, hypoxic ischemia, and pediatric pneumonia, independently identified factors relevant to assessing the cause of Nikki’s death.

He concluded that her death could not reasonably be deemed a homicide. As a specialist in brain pathology, Auer clarified that trauma sufficient to cause internal brain damage would leave external markers on the skin in the form of corresponding bruises/ contusions and likely corresponding skull fractures.

He found no evidence suggesting significant trauma to Nikki’s head,

only one minor impact, “no support for multiple impact sites neither on the brain nor in the skull nor in the scalp,” and “no evidence for multiple impact sites whatsoever” but instead found evidence in Nikki’s lung tissue of advanced interstitial viral pneumonia.

He explained that interstitial viral pneumonia causes hypoxia by disrupting the lung tissue and, if untreated, a cascade of symptoms will result in brain death: oxygen-deprived blood vessels leak into the dura; the blood accumulating outside of the brain causes swelling and increased intracranial pressure; the pressure inside the skull in turn causes retinal hemorrhages.

He also noted that the drugs Nikki had been prescribed before her collapse—Phenergan, which depresses respiration, and codeine, an opiate—would have done nothing to address her undiagnosed pneumonia but would have further hindered her ability to breathe.

Austin attorneys Nicole S. LeFave and Emily R. Linn of Littler Mendelson P.C. filed an amicus brief for the Center for Integrity in Forensic Sciences.2

“(Roberson) was convicted of causing the death of his daughter, a chronically ill child suffering from fever and pneumonia before her collapse,” the brief states. “He was sentenced to death based on scientific evidence the forensic community now understands to be outdated and deeply flawed. No conviction should be allowed to stand on this foundation, particularly a death sentence. The death of two-year-old Nikki Curtis was a tragedy—a tragedy that will be compounded beyond measure if Mr. Roberson is wrongfully executed due to flawed forensic evidence.”

The Innocence Project of Texas also filed a brief.3

“In this capital case, the CCA summarily denied relief, despite overwhelming record evidence that (Roberson’s) underlying conviction and death sentence rest on tabloid science. As courts in other jurisdictions have held, upholding a conviction in these circumstances violates fundamental due process principles. But the decision

raises a second and independent constitutional concern: the courts failed to engage meaningfully with the postconviction record, and instead uncritically adopted nearly word-for-word the prosecution’s proposed findings.”

Concerned Physicians and Scientists filed a concurrent amicus brief, saying the scientific understanding of SBS has changed in the two decades since Roberson was convicted.4

“The previously prevailing scientific belief regarding SBS has been discredited, and amici file this brief out of concern that some courts continue to rely uncritically on outdated

theories and refuse to consider the current state of the science. Amici fervently believe that the courts must meaningfully take into account the evolution in the scientific consensus regarding SBS and carefully consider whether individuals convicted years ago on a now-discredited shaken-baby-syndrome hypothesis are entitled to judicial relief.”5

The U.S. Supreme Court has not responded to the petition for a writ of certiorari, and Roberson remains on death row. AL

FOOTNOTES

1 https://drive.google.com/ file/d/1r1QoAwA3u4aMDUV -

du-fTgy3Ns5r7DMJY/view.

2 https://drive.google.com/file/d/1X_ vbperKLHV8yxWywfuNZQjG5UxG_ H99/view.

3 https://drive.google.com/ file/d/1mWXGW059STLeJXU8z-WAEbmSKsCvmjY-/view.

4 https://drive.google.com/ file/d/1cogHYxkUPEeo9VsCNWCmsHQu7-AOkyjn/view.

5 https://drive.google.com/file/d/ 1S1o_bsfkM-1qBL0A3Q37ABS9O8Nz86rr/view.

Legislature Strips Austin’s Third Court of Appeals of Significant Jurisdiction

BY MICHAEL CURRY, ATTORNEY-MEDIATOR, MICHAEL CURRY PC

The opinions expressed in this article are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

In its 88th Legislative Session, the Texas Legislature transferred jurisdiction over important litigation involving state agencies and state legislation from the Third Court of Appeals and the other 13 courts of appeals to a newly created court.1 The change applies to appeals perfected on or after Sept. 1, 2024, and to all cases pending in other courts of appeals on that date that were filed on or after Sept. 1, 2023.2

Senate Bill 1045 amends sections 22.201 and 22.220 of the Texas Government Code to create a new statewide Fifteenth Court of Appeals with exclusive intermediate appellate jurisdiction over:

(1) matters brought by or against the State or a board, commission, department, office, or other agency in the executive branch of the state government, including a university system or institution of higher education as defined by Section 61.003, Education Code, or by or against an officer or employee of the State or a board, commission, department, office, or other agency in the executive branch of the state government arising out of that officer’s or employee’s official conduct.

(2) matters in which a party to the proceeding files a petition, motion, or other pleading challenging the constitutionality or validity of a state statute or rule and the attorney general is a party to the case; and

(3) any other matter as provided by law.3

The legislature carved out 15 specific types of proceedings involving the State or State employees from the new court’s exclusive jurisdiction that would remain with the existing 14 courts of appeals. These include proceedings under the Texas Tort Claims Act or for personal injury or wrongful death, employment discrimination, and eminent domain.4

The Fifteenth Court of Appeals will have five justices, with “the initial vacancies” filled by appointment.5 The Chief Justice and two justices will hold their places “for the first three years following the court’s creation.”6 The bill is otherwise silent regarding the terms of office and manner of selection.

The justification for SB 1045 expressed in the Bill Analysis was that cases involving the State “apply highly specialized precedent in complex areas of the law” for which the 14 courts of appeal “have varying levels of experience,” resulting in “inconsistent results for litigants.”7 No supporting evidence

was offered in the analysis. The bill’s solution was to create a single statewide court to hear those cases.

The legal profession vigorously contested SB 1045 in the legislature. Among those opposing the bill were justices from several courts of appeal, including the Third Court, and representatives of three lawyer organizations (Texas ABOTA, TADC, and TTLA), who pointed out, among other things, the absence of any evidence to justify an additional court or support the rationale advanced for creating one, as well as logistical and cost concerns. Those registering support for the bill largely consisted of business and industry associations.

Among the concerns expressed was the potential conflict of SB 1045’s judicial appointment provision with Article V, Section 6 of the Texas Constitution, which provides that court of appeals justices are to be elected at a general election for a six-year term.8 Accepting that an initial opening on a newly created

court can be considered a “vacancy,”9 the Texas Constitution allows the governor to fill a judicial vacancy but only “until the next succeeding General Election for state officers,”10 not for three years or six.11 Importantly, filling the court seats through appointments rather than an election gives the appointees the advantage of running as incumbents at the next general election.

The configuration of the Fifteenth Court to include all counties of the state12 appears to conflict with the Article V, Section 6 (a) requirement that “the state be divided into courts of appeals districts.”13 SB 1045 acknowledges as much by substituting the word “organized” for “divided” in Government Code Section 22.201, which will now read: “The state is organized into 15 courts of appeals districts.” Because the Fifteenth Court is composed of the undivided whole of the state, the legislature was forced to amend the language of Section 22.201 in a way that

highlights its non-conformity with the Constitution.

In addition to the constitutional questions, concerns were raised that the party that controls the executive and legislative branches of government created a new court specifically to exercise broad exclusive jurisdiction over cases involving those branches, including suits that challenge “the constitutionality or validity of a state statute or rule.”14

Under our democratic system based on the rule of law, the separation of powers, and the independence of the courts, the judges are the referees who decide whether the rules (laws and constitution) are being followed. SB 1045 strips jurisdiction from the existing referees, seeks to pack a new court with hand-chosen referees, facilitates their reelection as incumbents by a statewide vote (where the appointing party has had the electoral advantage for over a quarter of a century), and gives them near-exclusive intermediate appellate jurisdiction over the governing party’s actions, rules, and legislation. Manipulating the selection of referees on crucial issues erodes trust in the new court’s independence and ability to serve as a constitutional check on the executive and legislative branches’ conduct. Consolidating power across all branches of government in this way also violates democratic norms and threatens the accountability necessary for a working democracy.

SB 1045 provides that the Texas Supreme Court “has exclusive and original jurisdiction over a challenge to the constitutionality of this Act or any part.”15 There will be more riding on the outcome of that challenge than the bill’s compliance with the Texas Constitution. AL

FOOTNOTES

1 SB 1045, available at Texas Legislature Online (TLO), 88th Legislature First Called Session, https://capitol. texas.gov.

2 SB 1045 Section 1.15 (a) and (b). The use of “perfected” in the bill in connection with “appeals” suggests that the use of “filed” in connection with “cases pending” refers to the date that the lawsuit (not the appeal) was filed. Those pending cases falling within the exclusive jurisdiction of the Fifteenth Court are to be transferred to that court.

3 For example, the Fifteenth Court has exclusive jurisdiction of appeals from the new Business Court created by House Bill 19. Analysis of HB 19 is outside the scope of this article. HB 19 is available at Texas Legislature Online (TLO), https://capitol.texas. gov.

4 See SB 1045, Section 1.05, amending Govt. Code Section 22.220 by adding a new subsection (d) (1) (a)-(o) to the complete list of excluded proceedings.

5 SB 1045 Section 1.14 (b).

6 SB 1045 Section 1.04, amending Govt. Code Section 22.216 by adding subsection (n-2).

7 CSSB 1045 Bill Analysis, Senate Research Center, 3/24/23 (Author’s/ Sponsor’s Statement of Intent) available at Texas Legislature Online

(TLO), https://capitol.texas.gov.

8 Tex. Const. Art. V, Section 6 (b) (“Said Justices shall be elected by the qualified voters of their respective districts at a general election, for a term of six years …”).

9 See Tex. Const. Art. IV, Section 12 (i) (“For purposes of this section, the expiration of a term of office or the creation of a new office constitutes a vacancy.”); State ex rel. Angelini v. Hardberger, 932 S.W.2d 489 (Tex. 1996).

10 Tex. Const. Art. V, Section 28 (a).

11 See State ex rel. Angelini v. Hardberger, 932 S.W.2d 489, 495 (Tex. 1996) (“Section 28 clearly specifies the circumstances for, and the duration of, such interim appointments.”); See also Draughn v. Brown, 651 S.W.2d 728 (Tex. 1983).

12 SB 1045 Section 1.01, amending Govt. Code Section 22.201 by adding subsection p.

13 SB 1045 Section 1.01, amending Govt. Code Section 22.201, subsection a.

14 SB 1045, Section 1.05, amending Govt. Code Section 22.220 by adding subsection (d)(2). This jurisdiction applies only when “the attorney general is a party to the case.” Government Code Section 402.010 requires that the attorney general be notified when a statute’s constitutionality is challenged and given time to intervene.

15 SB 1045 Section 3.02.

Michael Curry received his law degree from The University of Texas School of Law and was a Texas Supreme Court briefing attorney for Justice Tom Reavley.

Carola M. Davis, CFS

Texas Bans Investigators from Using Hypnosis to Obtain Testimony

The 88th Texas Legislature passed a bill that bans hypnosis-induced statements from being introduced as evidence in criminal trials.

Senate Bill 338 took effect on Sept. 1, 2023.

The bill defines investigative hypnosis as a law enforcement technique using hypnosis to enhance a witness’s recall of an event, including descriptions of people, conversations, and the environment.

This is the second session in a row that the legislature passed a bill that would negate hypnosis-induced testimony.

Gov. Greg Abbott vetoed the 87th Legislature’s bill on the grounds that it was too broad.

“The bill would grant lifetime immunity for everyone who undergoes this type of hypnosis from

having any subsequent statements used in a criminal trial,” Abbott said in his 2021 veto statement.

SB 338, the bill that has been passed into law, specifies that hypnosis-induced statements would only be inadmissible as evidence in the case at hand.

In 1987, the legislature charged the Texas Commission on Law Enforcement with implementing forensic hypnosis training and testing for law enforcement, said Rep. Gina Hinojosa in the bill’s statement of intent.

“The course’s handbook has not been updated since the training was established in the 1980s,” she said.

Prior to inducing hypnosis, witnesses are told that memory works like a videotape, and during hypnosis they will be able to recall certain events and suspect descriptions that their normal memory

would not be able to access.

“However, scientific studies have found the use of hypnosis to produce an alarming amount of unreliable eyewitness identification testimony,” Hinojosa said. “Rather than increase the accuracy of eyewitness recall and recognition, Johns Hopkins Medicine has warned that hypnosis does not work as a memory-recovery method and leads witnesses to be more confident in their memories, even when they are false.”

While hypnotherapy has been found effective in treating addiction and mental illness, its use as a forensic tool, particularly by nonprofessionals, is ineffective, Hinojosa said.

The Texas Department of Public Safety suspended its hypnosis program in 2021 in favor of “more advanced interview and interrogation techniques that yield

better results.”

“As of today, at least 27 states have banned testimony retrieved during hypnosis from being introduced as evidence,” Hinojosa said. “With so much uncertainty in investigative hypnosis, it is vital to protect the public by requiring that forensic evidence is supported by science, research, and data so as not to wrongfully convict an innocent person.”

Authored by Rep. Hinojosa and coauthored by Sens. Sarah Eckhardt, Morgan LaMantia, and Borris Miles, the bill was sponsored by Rep. Jeff Leach, who authored the identical House Bill 4271.

SB 338 passed the Senate unanimously with 29 yeas, and it also passed unanimously in the House with 31 yeas. The bill was passed into law without the Governor’s signature. AL

Firearms Experts Can’t Tie Bullets to Specific Guns, Per Maryland Supreme Court

House Bill 4628 was passed by the 88th Texas Legislature and establishes clear communication requirements between law enforcement and forensics labs.

The bill went into effect Sept. 1, 2023, and requires crime labs to notify a law enforcement agency within 30 days when they obtain a match from DNA or other forensic evidence. Within five business days of this first notification, the police agency must notify the crime lab that the first notification was received. The police must then follow up within another 30 days, certifying to the crime lab that they have attempted to follow the lead, including attempts to get a new DNA sample from a suspect.

Previously, communications between these agencies typically relied on phone calls or emails with no system in place to ensure receipt.

“Many times, depending on the type of case it is, it could be a cold case, or an older case, and that investigator has either been promoted, moved on, retired, ter-

minated, and that email falls on dead air,” said Chambers County Sheriff Brian Hawthorne to the Austin American-Statesman

Hawthorne testified in favor of the bill for the Sheriffs’ Association of Texas

“You could have a very active hot lead that could be preventing a crime or stopping other crimes if you are able to move forward,” he said.

State Rep. Craig Goldman of Fort Worth introduced the bill. His district includes the city of Allen.

In 2017, 22-year-old Molly Jane Matheson of Allen was found dead in her apartment.

Four days later, 36-year-old Megan Getrum was found dead.

Both murders were linked to Reginald Kimbro, who had been investigated for sexual assaults in 2012 and 2014. Forty-one days before Matheson’s murder, Allen police were notified that Kimbro had been linked to one of the survivors.

Tracy Matheson, a relative of Molly Jane, told the Statesman that this notification might have prompted police to arrest Kimbro before he could kill Molly Jane or Getrum.

“It is my understanding that (the notification email) went to an inbox that didn’t belong to anyone,” said Matheson to the Statesman. “It was not being monitored. It was not received by whomever should have received it. And so it sat unread, and Molly was killed 41 days later.”

Kimbro was convicted of the two murders and received two life sentences.

The Allen Police Department said in a statement that a threeyear backlog at the DPS forensics

lab prevented them from arresting Kimbro earlier.

“(The Allen Police Department) acknowledges additional delays occurred due to case reassignment over the intervening years along with the volume of active cases at that time,” the statement said. “APD has since made several improvements to case management. We believe these measures will ensure prompt processing of DNA evidence to provide more timely resolution for victims.” AL

Maryland Supreme Court: Firearms Experts Can’t Say Bullets Came From Specific Gun

The Maryland Supreme Court has issued an opinion limiting the testimony of firearms experts.

In Kobina Ebo Abruquah v. State of Maryland, the Circuit Court for Prince George’s County allowed a firearms examiner to testify that bullets recovered at a murder scene were fired from a gun Abruquah acknowledged was his.

In so doing, the circuit court abused its discretion, the Maryland Supreme Court held.

Reports, studies, and other testimony presented at the trial do not

support the idea that bullets can be identified as having come from a particular gun, the opinion says.

Instead, firearms identification experts can only testify as to whether recovered bullets may have been fired from a particular type of firearm.

The ruling impacts pending and previously closed cases in Maryland.

“We have a case that was getting ready for sentencing, and they postponed sentencing this week so that they could pull the transcript and see exactly what the expert said,” Baltimore County State’s At-

torney Scott Shellenberger said to NBC Washington.

Shellenberger is also pulling transcripts for other cases to see what

firearms experts said during trial. Shellenberg said this ruling could potentially impact cases around the country. AL

Two Bills Endorsed by Chief Justice Hecht Signed Into Law

Two of the bills Texas Supreme Court Chief Justice Nathan L. Hecht endorsed in his State of the Judiciary address on April 5, 2023, passed during the 88th Texas Legislative Session.

The first, House Bill 19, relates “to the creation of a specialty trial court to hear certain cases; authorizing fees.” Specifically, the bill calls this the “Business Court.”

The bill is effective Sept. 1, 2023, and the court will be established Sept. 1, 2024.

The court will have 11 divisions, each serving the counties composing the corresponding administrative judicial region defined in the Texas Government Code, Title 2, Subtitle F, Chapter 74. Travis, Hays, and Williamson counties fall under the Third Business Court Division.

The business court will have the powers provided to district courts by Chapter 24 of the Government Code, including the powers to: issue writs of injunction, mandamus, sequestration, attachment, garnishment, and supersedeas; and grant relief that may be provided by a district court.

“As soon as practicable after the effective date of this Act, the governor shall appoint judges to the First, Third, Fourth, Eighth, and Eleventh Business Court Divisions,” the bill says.

A business court division judge shall receive an annual base sala-

ry of $140,000 from all state and county sources, the bill says.

The bill passed in the House of Representatives with 86 yeas, 53 nays, and with one representative present but not voting.

The bill passed in the Senate with 24 yeas and six nays.

“Business cases are often more complex than other civil cases and handling them alongside simpler cases makes for serious inefficiencies,” said Hecht in his State of the Judiciary address. “The costs and increased uncertainties of such litigation have led businesses to turn to arbitration and oth-

er dispute-resolution alternatives with the resulting lack of transparency and development of precedent. Many states have met this problem by providing specialized business courts.”

The second bill Hecht endorsed in his address and which was signed into law is House Bill 3186, “the Texas Youth Diversion and Early Intervention Act,” “relating to youth diversion strategies and procedures for children accused of certain fine-only offenses in municipal and justice courts and related criminal justice matters; authorizing fees.”

“The number of cases against juveniles in justice and municipal courts remains high, with more than 36,300 non-traffic Class C misdemeanor cases filed last year,” Hecht said. “This act would allow local governments to adopt youth diversion plans with a wide range of strategies on the front end of a case where they are most effective, rather than only on the back end as part of a conviction or deferred disposition.”

This act requires municipal courts to establish a youth diversion plan by Jan. 1, 2025. Where the evidence presented

Texas Supreme Court Chief Justice Nathan L. Hecht presenting the 2023 State of Judiciary. Photo by Leila Saidane, The Texas Tribune.

in a class-C misdemeanor case involving a minor would support a finding of guilt, this act requires courts to allow placement of the defendant and the defendant’s parents in a diversion program.

A diversion plan would need to be agreed upon by the defendant, the defendant’s parents, the State, and the court. Diversion activities can include “performing community service, participating in a court-approved teen court program, a school-related program, a community-based program, an educational program, a rehabilitation program, a self-improvement program, or similar third-party service provider programs.”

If the defendant does not comply with the diversion agreement or order, the court can refer the defendant to criminal court.

The bill will go into effect on Jan. 1, 2024.

The bill passed in the House with 135 yeas, two nays, and two representatives present but not voting.

The bill passed in the Senate with 31 yeas and zero nays.

Other New Laws of Interest

Visiting Judge Appointments

Constitutional Substitute House Bill 103 amends the Government Code to allow a county judge serving in a rural county with no statutory or probate court to appoint a former constitutional county judge as a visiting judge. The regular county judge would need to be absent, physically incapacitated, recused, disqualified, or find that the dockets are backlogged—as is the case in many jurisdictions currently as a result of the COVID-19 pandemic.

CSHB 103 stipulates the former constitutional judge must have served as a judge for at least 96 months in a constitutional county court (Texas attorney license not required); or must be a licensed Texas attorney who has served as a judge for at least 48 months in a constitutional county court.

This bill went into effect Sept. 1, 2023.

Legible Signatures on Search Warrants

House Bill 1712 requires a

magistrate’s full name to legibly appear on a search warrant. This can be in handwriting, in type, or as a stamp.

This bill has origins in the 84th Texas Legislature in 2015, where HB 644 was passed requiring magistrates’ names to legibly appear on search warrants. Despite this, some jurisdictions still had difficulty locating the originating courts for some orders.

If a magistrate fails to provide a legible name on an order, it does not affect the validity of the order.

If the magistrate’s name on the order is illegible, the defendant may request the magistrate’s name

be legibly added to the order.

The Supreme Court may adopt rules to implement this process.

This bill went into effect Sept. 1, 2023.

Increased Damages Awards for Justice Courts

Senate Bill 1259 allows a justice court to award up to $20,000 for any landlord-tenant dispute.

This limit would apply to judgments providing a remedy to “a tenant, including orders that require a landlord to make repairs, orders that reduce the tenant’s rent while repairs are ongoing, judgments against the landlord

for damages, and court costs and attorney’s fees incurred by the tenant.”

The bill went into effect Sept. 1, 2023.

Leaking Judicial Work Products

Senate Bill 372 makes the unauthorized disclosure of non-public judicial opinions and judicial work products a criminal offense.

Inspired by the leak of the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, violations of this section are Class A misdemeanors.

The bill went into effect Sept. 1, 2023. AL

Attorney Erin Leake Board-Certified in Family Law by the Texas Board of Legal Specialization

Decriminalizing Mental Health in Travis County: Part 2

This is the second in a series of eight articles about the Travis County Forensic Mental Health Project.

The Travis County Forensic Mental Health Project delivered its recommendations to the Travis County Commissioners in March 2023. The goal of these recommendations is to provide solutions other than jail to address mental health and substance abuse disorders in the county.

Recommendation #1

The report’s first recommendation is to digitize Travis County’s legal infrastructure and add to the existing local health information exchange (HIE) to provide data sharing at all levels.

This recommendation addresses the issues—or “gaps”—of outdated data collection methods and non-standardized datasets.

Many county entities rely on pencil-and-paper data-collection methods, “making data manually intensive to collect and difficult to retrieve and merge with other relevant datasets.”

In addition to outdated collection methods, many of these entities also “collect different and differently defined data.”

“Research shows that efficient data sharing among the jails and community health groups is essential to reduce recidivism and provide appropriate continuity of care,” the recommendation document says.

To implement a modern data infrastructure, a three-step approach is recommended. The first step is to establish data utilization agreements (DUAs) among stakeholders (legal, clinical, law enforcement, social service, and education providers).

The second step is for all entities interacting in the criminal, legal, and mental health spaces to go paperless and to ensure these paperless systems are connected to allow data sharing. The Travis County health information ex-

change, Connexus, can provide a platform from which to launch the larger data infrastructure.

Connexus currently syncs the data from local hospitals and community clinical providers in eight Central Texas counties, including Travis.

“The current major role of the HIE is to push notifications,” the document says. “When a person is admitted to an emergency room, that person’s outpatient provider is automatically notified. The HIE system is limited to individuals who have Medicaid, Medicare, or are uninsured, but could integrate information from all individuals regardless of insurance status.”

A possible next step, the document says, is for the Travis County Sheriff’s Office to connect to the HIE, “thereby integrating the health care provided in the jail to the community care providers.

Counties in Florida, Oregon, Massachusetts, Kentucky, and New York have already integrated their jail health records into their local HIEs.

The final step is to standardize the type of data collected.

“Modernizing data architecture and standardizing data dictionaries would dramatically enhance measuring progress, identifying gaps and barriers, and improving planning for each individual as they enter and exit the system,” the document says. “For the other recommendations in this report to optimally impact the system, a modern data infrastructure is required.”

The estimated cost of digitizing and connecting the county’s legal and health infrastructures is between $10 and $15 million. The estimated implementation time is between one and two years.

Calculating the financial benefit of such a system is difficult, the document says.

“The current system is so dated that a series of expansive, inefficient, labor-intensive work-arounds have been created to provide what data can be harvested to make decisions,” the document says.

Without implementing this first recommendation, “the impact of (the other recommendations) will be difficult, if not nearly impossible, to assess,” the document says. AL

FOOTNOTES

1 Glowalla, Geoffrey, and Vignesh Subbian, “Data Sharing Between Jail and Community Health Systems: Missing Links and Lessons for Re-Entry Success,” https://utexas.app. box.com/s/ l9r9h200xcahbp53ef8w- 5pfj9npudwzu, last accessed May 25, 2023.5pfj9npudwzu.

The Travis County Forensic Mental Health Project had eight workgroups, each researching specific topics to contribute to the decriminalization of mental health.

The Adjudication workgroup reviewed the current adjudication options and necessary programs and services for certain adjudication options. The members were:

• Travis County D.A. José Garza, co-chair

• Travis County Probate Court Judge Guy Herman, co-chair

• Juliana Guirguis of Integral Care

• Pete Valdez, Court Administrator of the Downtown Austin Community Court

• Vicki Ashley, Justice & Public Safety Interim County Executive

• Meg Ledyard, Travis County business analyst

• Michelle Hallee, assistant district attorney

• Jana Ortega of Ortega Law PLLC

• Lisa Snead, attorney at Disability Rights Texas

• Erin Shinn Sreenivasan, director of the criminal trial division at the Travis County Attorney’s Office

The Travis County Forensic Mental Health Project proposes connecting jail health systems with their management systems and with community/hospital health systems. This technological connection is the project’s first recommendation made to the Travis County Commissioners.

Former Texas State Bar President Leads Delegation to United Arab Emirates

Adelegation of U.S. legal professionals, led by former Texas State Bar President Richard Pena, visited the United Arab Emirates (UAE) to meet and exchange knowledge with professional counterparts, academics, and government officials.

Also among the Legal Structures and Rule of Law Delegation were Kenneth Owens, administrative law judge with the Texas Health and Human Services Commission; and Wallace B. Jefferson, former chief justice of the Texas Supreme Court.

The delegation toured Dubai and Abu Dhabi after they arrived in February 2023 and returned to the States in March.

“The UAE was a fascinating destination that turned out to be a wonderful adventure and learning

experience,” said Pena in a blog post. “From a cultural perspective we experienced the dynamic architecture, modern city scape, and the clean environment. Our delegation was fortunate in getting to interact with our professional counterparts for substantive matters, and we were able to gain an understanding of the UAE legal system, which for them works.”

The delegation was sponsored by the Citizen Ambassador Program, which has provided exchanges between high-level professions for more than 35 years. Citizen Ambassadors is a program of Cultural Visas, a U.S. nonprofit based in Washington, D.C.

While in the UAE, the delegation sought to understand how Islamic principles impact social laws and how cultural variances among

the individual emirates are addressed in the laws and execution of the legal system.

The delegation met with representatives of the UAE’s Ministry of Justice to develop a foundational understanding of the UAE constitution and legal processes. They also met with UAE academics to learn how the rule of law has evolved in the UAE.

They also observed the C3 court system in practice.

“C3 is publicized as the future of litigation processing,” Pena said. “It is a project in which the three levels of litigation are merged into one court, and the time limit for litigation is reduced to 30 days from the current 305 days. We were told this system works, but there were also mixed reviews. This unique project is

characterized by the ability to reduce the time for handling a case, issue a ruling, simplifying litigation procedure, and reducing litigation expenses. Whether this system will catch on in other countries is an open question. Also, the authoritarian aspect of the country limits dissent and political protest, but things do get done quickly.”

Pena further praised UAE President Mohamed bin Zayed Al Nahyan as a visionary leading the UAE into the modern world.

Austin Bar members interested in future legal delegations abroad can contact Richard Pena at richard@rpenalaw.com. AL

Austin Aviation Attorney Appointed to Advisory Board of Texas A&M Institute

Austin aviation attorney Michael Slack has been appointed to the External Advisory Board for Texas A&M’s Hagler Institute for Advanced Study.

The Hagler Institute was established in 2010 by the Texas A&M regents to create an incubator for advanced study in various fields, including medicine, science, architecture, social sciences, business, education, engineering, agriculture, law, and public and foreign policy. The institute attracts international talent in these fields to conduct research at Texas A&M, in which students take part.

The institute’s External Advisory Board annually reviews the activities of the institute, providing guidance and recommendations.

“Michael Slack is among the most distinguished attorneys in the nation,” said John L. Junkins, founding director of the Hagler Institute. “His combination of aviation expertise as a pilot and an aerospace engineer, and his world class legal expertise has made truly remarkable impacts in aviation law. He is a highly successful trial lawyer who has greatly contributed to aviation safety. He has contributed greatly as a volunteer and leader to Texas A&M, the legal profession, and to the nation.”

Slack earned his B.S. and M.S.

in aerospace engineering at Texas A&M before obtaining his J.D. from The University of Texas at Austin.

Before becoming a lawyer, Slack was a senior aerospace engineer at NASA, where he worked on the Apollo-Soyuz and Space Shuttle programs. During this time, he developed a system to greatly reduce flight loads during ascent.

In 2002, the American Institute of Aeronautics and Astronautics named Slack an associate fellow. He has also been awarded the Outstanding Aerospace Engineer

and Distinguished Aerospace Engineer alumni awards by Texas A&M’s Department of Aerospace Engineering.

As a lawyer, Slack is a co-founder and managing partner of Slack Davis Sanger with more than 36 years of legal experience focused on aviation law and product liability cases against major corporations.

He serves on the board of governors for the American Association for Justice. He is certified by the National Board of Trial Advocacy and the Texas Board of Legal

Specialization.

In 2023, he received the Distinguished Aggie Lawyer Award from the Texas Aggie Bar Association. He has also previously served as president of the Texas Trial Lawyers Association. AL

Mike Slack of Slack Davis Sanger.

Loving It Lawyers Club Tours the CFCF

BY LAURA FOWLER, THE FOWLER LAW FIRM PC

Loving It Lawyers Club hosted “An Insiders Tour of the New Travis County Civil and Family Law Court Facility” on June 30, 2023.

The tour was presented by Travis County District Clerk Velva Price and featured Hon. Karin Crump, presiding judge of the 250th District Court.

We had about 35 people in attendance, including five lawyers with more than 25 years of experience. Also among our ranks were students from the Youth Justice Alliance who were interning for Judge Crump for the summer.

The most incredible thing about the new courthouse is the service the Travis County team provides to our community.

The security staff on the first floor were very welcoming and friendly.

One deputy sheriff came up to us and said, “Oh, yeah, you’re the Loving It people” and escorted us to the escalator up to our room.

Our room was spotlessly clean, well-lit, and comfortable. It was configurable and could have ac -

commodated up to 60 people.

Lisa Rush told us about the administrators she oversees, who provide aid to people in legal difficulties—from licensing to court orders—at no charge.

Even though my firm does a lot of pro bono legal work, I didn’t know any of this.

Judge Crump showed us the other features of the courthouse, such as private rooms for nursing mothers and areas where jurors and witnesses can convene without climbing all over each other. The CFCF is truly what courthouses in

heaven must look like!

We had a blast and would recommend it for meetings to everyone!

The Youth Justice Alliance (YJA) is headed by the Austin Bar Association’s Law-Related Education Committee’s Chair Armin Salek. YJA is dedicated to moving the needle on diversity investments in the legal profession to high school and college students.

By providing interventions before talented aspiring lawyers are filtered out by financial and institutional barriers, the organization is hoping to work toward a legal profession that is accessible to students from all communities and backgrounds. Eventually, YJA hopes that the legal profession will lose the title of the least diverse profession in America. AL

Third Court of Appeals Hosts Judicial Delegation from Egypt

On July 13, 2023 the Third Court of Appeals hosted a delegation of Egyptian judges as part of the U.S. State Department’s International Visitor Leadership Program (IVLP). The IVLP is the State Department’s premier professional exchange program and connects current and emerging foreign leaders with their American counterparts through short-term visits to the United States. The justices visited and discussed their respective legal systems. AL

The Loving It Lawyers Club touring the CFCF. Among those pictured are 250th District Court Judge Karin Crump (far left); Law-Related Education Committee Chair Armin Salek (next to Crump); Travis County District Clerk Velva Price (middle); and Loving It Lawyers Club Chair Laura Fowler (white scarf). On the right-hand side are Judge Crump’s summer interns. These interns are also part of the Youth Justice Alliance, which is headed by Salek.

Pictured here are the Justices of the Third Court of Appeals (Judge Theofanis not pictured) along with the Egyptian delegation. Third Court Justices pictured are Justice Gisela Triana (far left); Chief Justice Darlene Byrd, Justice Chari L. Kelly, Justice Thomas A. Baker, and Justice Edward Smith (middle, L-R). Members of the Egyptian delegation are (in no order): Hagar Mohamed Mohamed Aboelenen, head of Political and Civil Committee of the National Council for Human Rights; Mahmoud Ahmed Abdelzaher Ahmed, executive director of Gohoud to Support Human Rights Defenders; Judge Hossameldin Hussein Ali Hussein Ali Elhaddad, chief of the Technical Office of the Court of Cassation in the Ministry of Justice; Aziza Hussein Fathy Hassan Eltawil, attorney with the Egyptian Initiative for Personal Rights (EIPR); Judge Emadeldin Hamdy Abdelaziz Kandil, chief judge of the Court of Appeal in the Ministry of Justice; Judge Mahmoud Ahmed Sabry Youssef Mahmoud Sabry Youssef, judge in the Ministry of Justice/Alexandria Court of Appeal.

Austin Bar Receives Award from Texas Access to Justice Commission

The Austin Bar Association recently won the 2023 Deborah G. Hankinson Access to Justice Award from the Texas Access to Justice Commission.

The award is given to local bar associations that demonstrate a commitment to access to justice in their communities and to raising financial support for legal service providers on a local and statewide basis.

The Austin Bar won the award for Division III (2,000+ members). The Austin Bar was recognized for launching, developing, and sustaining numerous pro bono programs, such as Adoption Day, CANLAW clinics to help cancer patients with end-of-life planning, the Self-Repre sented Litigant Project supporting litigants on the uncontested civil docket, and the Veterans Initiative,

which has helped over 6,000 veterans since its inception.

Additionally, the Austin Bar’s DEI committee supports diversity in the legal profession and compiles resources and information for historically disadvantaged individuals to aid their efforts in accessing and navigating the justice system. The Austin Bar supports the operations of Volunteer Legal Services of Central Texas and operates the Lawyer Referral Service of Central Texas, which offers reduced-fee attorneys for eligible applicants.

The award is named after Deborah G. Hankinson, a former Texas Supreme Court Justice, who now

Together, we’re making a difference in making the law and justice more accessible for people throughout Austin. AL

The Austin Bar delegation to the Texas Access to Justice Commission accepting the Austin Bar’s 2023 Deborah G. Hankinson Award. (L-R): Cindy Tisdale, president of the State Bar of Texas; Leslie Dippel, former president of the Austin Bar and 2023 chair of SBOT’s Local Bar Leaders Conference; David Courreges, former president of the Austin Bar and current director on SBOT’s board of directors; Terry Tottenham, former SBOT

Travis County District Clerk

Velva Price was named the County & District Clerks Association of Texas (CDCAT) Clerk of the Year for 2023!

Price was presented her plaque at CDCAT’s 128th annual conference in June 2023 in McAllen.

CDCAT’s Clerk of the Year award is presented to both a district clerk and a county clerk, each of whom should have provided notable service to the association while promoting its purpose.

CDCAT’s purpose is to promote professional standards, to provide a means for the education of its members regarding the statutory and constitutional duties of the county clerk and the district

Velva Price Wins Clerk of the Year

clerk, and to participate in the legislative, judicial, and executive processes of the state government beneficial in the performance of the members’ duties.

Price has previously served as secretary on CDCAT’s executive board and on the board of directors for Region IV.

Additionally, Price was the first African American president of the Austin Bar Association, a past president of the Austin Black Lawyers Association, past president of the Travis County Women Lawyers’ Association, and a past board member for District 9 with the State Bar of Texas.

Congratulations on this well-deserved accolade, Velva! AL

Darlene Byrne Wins Jurist of the Year

Chief Justice of the Third Court of Appeals Darlene Byrne was awarded Jurist of the Year by the Texas Chapters of the American Board of Trial Advocates (TEX-ABOTA) at their annual awards dinner in Sante Fe, N.M., on June 17, 2023.  ABOTA’s guiding principles are

preservation of an independent judiciary and the right to a trial by jury, and this award recognizes a judge for honoring these principles and for outstanding service  and commitment to the civil justice system.

Congratulations, Chief Justice Byrne. AL

Member: FINRA/SIPC

Travis County District Clerk Velva Price (L) won CDCAT’s 2023 District Clerk of the Year. Donece Gregory (R) of Tyler County won CDCAT’s 2023 County Clerk of the Year.

Chief Justice Darlene Byrne (L) of the Third Court of Appeals and TEX-ABOTA President Tim Newsom (R).

Lindsey

Expanding Access to Estate Planning is Important

BY LINDSEY S. DRAKE, DRAKE LAW PLLC

make those decisions. A person without these basic documents who needs assistance and lacks capacity to execute them will be facing a guardianship proceeding. A person with capacity may face rush fees or difficulty finding an attorney who can provide emergency planning when time is short.

Far too many American adults have no will and have granted no powers of attorney. Surveys say the number is as high as 60%.1

One of the big barriers is the cost of preparing an estate plan as compared to what people have to leave behind. Costs range from free for DIY solutions for very simple distributions; to hundreds of thousands of dollars for large and complex estates. Commonly among attorneys in the central Texas area, rates run from $800 to $7,000 for the basics up to the simple trust plan.

According to an article in U.S. News and World Reports from March 2023,2 the median net worth for American adults is $121,760 as of September 2020. With a net worth in that range, many people do not think they have enough for an “estate” plan or attorney. An estate plan is more than just a will. It also involves powers of attorney, directing who will make financial and medical decisions in the event a person needs care. However, the financial power of attorney can be useful if you are simply out of the country or need help paying daily bills. Both young and old can benefit from having chosen who will

To overcome both poorly designed DIY options that are not Texas-specific and the barrier of expense, the Supreme Court of Texas approved standard forms for a single person and a married person to prepare wills themselves.3 The order was first signed on May 5, 2023, and revised forms were approved July 7, 2023. While the forms are not a substitute for legal advice, they do contain the required language to pass property and appoint an independent executor, both of which save thousands of dollars in probate costs.

The backlash among estate attorneys was significant, but it must be remembered that these are designed to be a better alternative to non-Texas-specific forms that lack the required language to be considered self-proved or forms that fail to dispose of all property. The Texans who turn to these forms cannot afford an attorney or, when they can, they do not recognize the value an attorney can bring, and therefore were not going to hire a lawyer, regardless of whether they had the means to do so. The forms were carefully written to provide broad protection and detailed instructions in each section about what is necessary.

These forms are a combination of handwritten and typed text, and attorneys are sometimes confused, thinking a will must be either fully typed or fully holographic (written in the person’s own handwriting). To be considered valid, a will simply needs to

be in writing, signed by the testator—the person whose will it is— and witnessed by two disinterested witnesses. No date is required on the will itself, and witnesses are not required to watch the testator sign, though both of these things are recommended. A testator can later declare to the witness that this is her will and request the witness sign, confirming the testator is over 18 and of sound mind. While the customary practice is for both witnesses to be in each other’s presence while they watch the testator sign, this is not statutorily required or required by case law to be a valid will. The requirements for a valid will are found in Texas Estates Code Section 251.051.

A testator’s signature need not be subscribed and may appear at the beginning of a will as long as it is handwritten. Witnesses must subscribe their names, meaning the witness signatures must be at the end of the will. A testator may also handwrite a will that does not need to be witnessed in order to be valid. See Texas Estates Code 251.052.

It is also widespread practice and highly advisable to make the will self-proved by having a notary. The notary is confirming several things: The testator is over 18 or, if under, the testator is a member of the United States Armed Forces; the witnesses are over 14; the witnesses swear that the testator has declared the instrument to be her last will and directed the witnesses sign the will; and that the witnesses believe the testator to be of sound mind. The recommended form for the self-proving affidavit is found in the Texas Estates Code Section 251.104, but may appear in a substantially similar way.

The new promulgated forms contain all the elements to be valid and self-proved. They direct the

distribution of property to either spouse or children, depending on whether the testator is married or single. They provide for use of custodial accounts for property passing to persons under 21 years of age. There is a section to declare the testator’s choice of guardian of their minor child. These will forms are not designed for anyone who is not passing property to spouse or children, and do not provide for a disaster clause where property is passing to more remote family (heirs) or charitable institutions, should children fail to survive the testator leaving no descendants. This can set up a partial intestacy if the testator survives all the named beneficiaries. Ask a probate attorney for more details on partial intestacy.

These forms instruct a person to consult with an attorney if they have questions about how to use them. However, finding an attorney willing to review for a fee less than the cost of preparing a will might be difficult since it is often easier to trust the attorney’s familiarity with their own forms rather than check the Supreme Court’s form for accuracy as prepared by the testator.

As attorneys get more familiar with the forms and more comfortable advising on them, it would be an act of public service to offer to review for a reasonable fee, recognizing that the goal is to expand access to wills to more people. AL

FOOTNOTES

1 https://www.aarp.org/money/investing/info-2017/half-of-adults-donot-have-wills.html.

2 https://money.usnews.com/money/ personal-finance/saving-and-budgeting/articles/what-is-the-averageamerican-net-worth-by-age#:~:text=Between%2035%20to%20 44%2C%20the,for%20someone%20 over%20age%2075.

3 https://www.txcourts.gov/forms.

S. Drake is a solo practiontioner at Drake Law PLLC and an adjunct professor at UT Law teaching Elder Law this fall. She has been practicing estate planning and probate law for 12 years with a focus on elder law for the past eight years. She is an administrator for the Texas Estates & Probate Facebook group and frequently mentors new attorneys. She is a member of both AYLA and the Austin Bar.

Cultivating Diverse Leadership

Immediate Past President of the Austin Bar Association

Amanda Arriaga will participate in a panel discussion on cultivating and retaining diverse leaders in bar associations on Sept. 20, 2023.

Arriaga served as Austin Bar president for 2022-23 and was its first Latina president.

The panel discussion is being put on by the National Conference of Bar Presidents. Joining Arriaga in the panel discussion are two other Latinas who were the first such presidents of their respective associations.

Laura Benitez Geisler served as the 110th president of the Dallas Bar Association but was its first Latina president in 2019.

Diana Perez Gomez currently serves the Houston Bar Association for its 2023-24 bar year, but is the only Latina elected to that

position since the association was established 153 years ago.

Such “firsts” as these are the topic of the Austin Bar Association’s Council of Firsts podcast. Hosted by Arriaga, past guests include Travis County District Clerk Velva Price, who was the first African American female president of the Austin Bar; Richard C. Pena, first Hispanic State Bar of Texas president; and Third Court of Appeals Justice Gisela Triana, the first Latina judge to serve that court.

New episodes come out every Tuesday and are available in video on YouTube or as audio through Apple Podcasts, Spotify, or wherever else you get podcasts.

To register for the panel discussion on Sept. 20 at 1 p.m., visit https://americanbar.zoom. us/webinar/register/WN_6ZtxPSg-Que3HSUwfxbo1Q#/registration. AL

Austin Bar Celebrates Pride

The LGBTQ Section of the Austin Bar celebrated Austin Pride with thousands of fellow Austinites on August 12, 2023. The Section marched in the parade with members, supporters, and friends, handing out flags, necklaces, and fans for the hot summer night. The parade also provided the opportunity to share the Section’s “know your rights” website with community members through a QR code. The LGBTQ Section was honored to welcome Associate Judge James Arth, and Judges Selena Alvarenga, Denise Hernandez, Maya Guerra Gamble, Jessica Mangrum, and Tamara Needles, who all participated in the parade. An even bigger celebration is expected in 2024 and Austin Bar members are invited!

Like Skittles, I’ve experienced many flavors of the practice of law. I’ve worked as in-house counsel to a health care system and a Fortune 500 managed care company. I’ve worked at a mid-size medical malpractice firm, a small boutique litigation firm, and as a solo attorney. I have worked on both the plaintiff and defense sides. Given my exposure to so many flavors of the legal rainbow, I wanted to share my experience in the event someone has considered making a jump!

Life circumstances have predominately accounted for my shifts, but there were other impetuses. Let me start from the beginning, a long, long time ago… .

Many people ask me why I chose to specialize in health care law. First, my father is a cardiologist, and I was surrounded by physicians growing up, so representing them was something I really enjoyed. I love the art of medicine, and I felt like a pseudo-doctor using big words like “chorioamnionitis” or “encephalitis.” I was exposed to a broad array of heath care laws while competing in moot court. I was engrossed with issues such as patient-dumping and insurance companies making health care decisions on behalf of patients, even when their decisions conflicted with the attending physician. Con-

Taste the Rainbow: Reflections on a Varied Career in Law

BY SANDY BAYNE, BAYNELAW LLC

sequently, my first job out of law school was at a medical malpractice defense firm in Houston. While working there, I also received my LLM in health law.

In 2003, tort reform legislation was passed in Texas placing an unprecedented ceiling on non-economic damages in med mal cases. Medical malpractice dockets dried up statewide. I was sad to switch gears, but there were not enough cases to bill enough hours.

Having gone to college in Philadelphia, I was eager to get back to the northeast. An opportunity arose with a managed care company. During my interview, they told me there were no billable hours. A perk to working as in-house counsel is that lawyers don’t bill. There were many things I enjoyed there. However, in administering heath plan benefits, I had to be the bearer of bad news, telling insureds that benefits for their dying loved ones would be denied (see page 74 of the contract you never read). After a few years, I wanted to do more to help people in need.

My fiancé encouraged me to move to Austin after years of long-distance dating. Seton Hospitals was hiring, and the idea of inhouse on the provider side was appealing. During my interview, I was told I would get a pager, as lawyers

had to take 24-hour calls every few weeks, further supporting my wanna-be-doctor persona. I was back to helping doctors and still didn’t have to bill any hours!

I loved working at Seton. Toward the end of my time at Seton, I was pulled in by the CEO to help reorganize the board of directors’ structure. At this point, and for the first time in almost 10 years of practicing law, I stopped practicing law, per se, and was heading up the governance department. While I valued the work immensely, I missed practicing law. I was working very early mornings and very late nights. I rarely saw my kids. It was not an easy decision, but after six years, I decided it was time for a shift.

I was soon approached by a friend of the family, who almost died after delivering her child. She became infected with necrotizing fasciitis, which almost killed her. I became passionate about her case, and I decided it was finally time to take on a case for the “dark side.” Or was the defense side the dark side? It didn’t matter. I was ready to step out of my comfort zone, establish my own law firm, and help the underdog! I was motivated to make this change thanks to my wonderful experience in recently graduating from the Austin Bar/AYLA

Academy. I decided to partner with a reputable firm and mentor, and we settled the case favorably.

This was my first experience working as a plaintiff’s attorney. Two notable takeaways: 1) If you’re nervous about taking on a behemoth on your own, that’s OK! You can joint venture the case with a firm until you feel confident about handling one on your own; 2) I will never forget the family I worked with and their gratitude when I presented them with a large settlement check. It’s just not the same feeling when you dispose of a case for a multi-million-dollar corporation. Their gratitude stays with you forever.

Through my time working as a plaintiff’s lawyer, I have received signed New York Times bestseller books from authors, gift cards, and heartfelt notes, all of which I cherish.

There are some challenges working on the plaintiff’s side, especially if you are solo—you eat what you kill. There is no salary, no money coming in until you win. The luxury of showing up to the office and getting a check every two weeks is a refreshing notion. To properly litigate your case, there are a lot of expenses you must front. It can be daunting to be out thousands of dollars for a year or two, not recov-

Sandy Bayne has specialized in different areas of health law for 20 years. She received her LLM in Health Law from the University of Houston. She now specializes in health insurance denials on behalf of patients and physicians. In her free time, She loves litigating on the tennis court.

ering any money, and not knowing if you’ll prevail. I think this risk is a significant barrier to entry.

There are a lot of perks to being a solo practitioner. Here are my some of my favorites: I love that I get to practice with my own style. I am very compassionate and empathetic; I like that I can develop my own rapport both with my client and opposing counsel. Setting your own schedule is amazing, especially when you have three kids. Finally, working as a solo practitioner has allowed me to develop a niche practice: helping people fight their health insurance denials to ensure the health care promised to them is not illegally denied. I am proud that I have helped an endless number of sick, vulnerable patients helplessly trying to navigate the abyss of health insurance denials. When I call a client and tell them that their $100,000 hospital bill has been reduced to $0, there are tears in both of our eyes.

I’ve tasted most of the colors of the legal rainbow, and I have enjoyed them all in some way. Ultimately, I love helping people in need, and my solo practice, BayneLaw, has afforded me this privilege.

Certain practices only lend themselves to big firms or in-house positions. For me, after generating savings, gaining sufficient experience, and having the blessing of three beautiful children, I was able to pivot to what fulfilled me. I’m eternally grateful for each unique experience. But I’m happy where I landed…for now.

Is this where I’ll stay? Or will there be a new flavor that I’ll just have to try in the future? AL

Are We Tired of Being Attired?

BY CLAUDE DUCLOUX

The opinions expressed in this article are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

My law school professor for Agency & Partnership Law was Harold G. Reuschlein, former dean of Villanova Law School, and everyone’s “Proper Gentleman.” He appeared for each class nattily attired, clad in a three-piece suit, a carefully chosen pocket square, with a golden watch fob spanning his vest pockets. His demeanor and impeccable elocution would suggest an impending post-class engagement for a quick sherry with Rumpole of the Bailey. But it was clear that he was frustrated by our generation of law students, whose casual (and often ragged) dress drove him to the occasional remonstration and full-on rant.

To Dean Reuschlein, both the study and vocation of the legal profession required a serious commitment. Lady Law, of course, was just a single genuflection under a vocation to the priesthood in his mind. And to Dean R, nothing demonstrated that dedication more than “looking like a lawyer.” Sadly, our “boomer” generation of the mid-1970s would never meet that expectation. From our shaggy hair, T-shirts, and insouciant disregard for social norms, we presented a formidable and often intolerable challenge to his message that “you must always ‘present’ as a lawyer.” Now remember, in 1974 the Vietnam War was still going on, and my class included a number of military veterans, including myself, who had no interest in shining another pair of shoes for the foreseeable future. Rather, we were delighted by having re-gained our right to grow hair and look sloppy.

But time, experience, and the

wisdom acquired during the past 46 years of practice make me appreciate Dean Reuschlein’s perspective, as he recognized his job was not only informing but molding each class of men and women into top-flight thinkers and achievers. And he realized then, as I do now, that the professionalism of young lawyers is often judged by their initial appearance. And part of that is the public’s expectations; a social construct that I explain in CLEs to young lawyers by saying, “Hollywood’s done a number on us.”

While John Grisham, among others, has romanticized the independent and iconoclastic loner lawyer, that is rarely what the public wants. Someone with a thick wallet looking for first-class legal talent invariably goes to firms with flawless exposition, known expertise, and well-dressed lawyers. It doesn’t matter if I agree with it. It’s simply true. (By the way, the same ethic applies to real estate agents: The top agents know that they are judged by their jewelry, cars, and clothes.) Some of these expectations are age-related, too. For a first meeting with a client, “Hollywood” has told the client that a “mature” (older?) lawyer like me, or Tom Watkins, or Yvonne Puig, will be wearing an appropriately dignified ensemble (for men, that will include a tie). So, we try to meet that expectation.

But let’s discuss how things have changed over my four plus decades.

Indeed, in my first job as assistant general counsel, men would not have dreamed of coming to work without sporting a tie. Often, we wore three-piece suits, which were in fashion in the late ‘70s and early ‘80s. Women wore dresses or smart pantsuits with silk blouses. A meeting with anyone (or even a trip to the courthouse to file something) involved wearing your coat, even in the melting heat of summer. Arriving without a coat subjected you to incredu-

lous stares and suppositions that you were ill, overly medicated, or even disbarred. True, we had our own iconoclasts, like our open-collared and gold-necklaced Judge Jerry Dellana, a quirky native Austinite whose brash departure from couture was excused by a somber demeanor and a solid record of reliable and trusted decisions.

By the late ’80s and early ’90s, women suffered through a decade of immense shoulder-pads and long skirts, while younger lawyers often wore oversized sport coats with sleeves pushed up to the elbow, hoping to evoke the coolness of Judd Nelson or Rob Lowe in St. Elmo’s Fire. But our true legal icons of the 1990s were L.A. Law’s Arnie Becker and Grace Van Owen, whose impeccable styles became de riguer to the successful lawyer.

But the rise of the Silicon Valley nerd culture at the turn of the century cut major swaths into our desire–and need–to dress up. Billionaires wore jeans! Turtlenecks? And…Izod Polos!? Dressing down was now the overarching impulse. The Western tradition of “Casual Fridays”–credited to Hewlett Packard by first allowing “Aloha

Fridays,” where Hawaiian attire was allowed in the office–had spread to nearly half of the 1,000 largest corporations in America by 2000.

And we’ve not looked back. Wingtips gave way to Sperry Top-Siders, and Ralph Lauren yielded to Lululemon.

Nevertheless, a major disrupter to fashion continuity was the pandemic shutdown, where dressing up became more akin to temporary “costuming” as we conducted business in a virtual reality. This fakery resulted in two distinct polemics among our profession’s members:

I can’t wait to dress in my lawyer stuff again–I am a lawyer! or Virtual practice rules! I love not having to dress in my lawyer stuff.

So, where does this ambiguity lead us, and what’s the moral of this story? Here’s my take on it:

Dean Reuschlein’s logic cannot be faulted. And it resonates with many who believe that, “I think better in my lawyer frame of mind. And dressing like one helps me get in character, so I do it.”

To others, clothes are just a false front, designed to misdirect and bamboozle the unwary.

But make no mistake: The power of a first impression remains undeniable. If you disagree, you better be a darn good lawyer, because you’ll have to earn the client’s respect, which more easily comes with meeting Hollywood’s expectation.

Hey, I don’t make these rules. But I’m tired of fighting them. Following them is much easier. So tuck in that shirt. And, ladies, closed-toe shoes–please!

the faith.