April 2014 Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES April 2014 Volume 39 Number 4

Thank You E-Mentoring Volunteers!

Focus Energy/Environmental Law

American Democracy and the Rule of Law: Why Every Vote Matters ate of Baylor University. She also graduated cum laude from Harvard Law School. After law school, she clerked for the Honorable Sim Lake of the United States District Court by Meghan Hausler for the Southern District of Texas. She then worked at Baker Botts, focusing on civil As Abraham Lincoln eloquently stated, litigation, antitrust and employment matone of America’s most venerated ideals is ters. She moved behind the bench in 2002, “government of the people, by the people, when she was appointed, then twice elected, and for the people.” In the spirit Judge of the 190th District of these words, and in honor of Court of Harris County, Texas. the upcoming 50th anniversaWhile serving in that posiries of Civil Rights Act of 1964 tion, she presided over more and the Voting Rights Act of than 200 jury and bench tri1965, this year’s ABA Law Day als. Judge Elrod was appointed theme is “American Democto the federal bench by Presiracy and the Rule of Law: Why dent George W. Bush in 2007 Every Vote Matters.” As in when Judge Patrick Higginyears past, the DBA will celebotham assumed senior stabrate Law Day with a luncheon tus. Judge Elrod has received featuring a keynote speaker numerous awards for her confrom the judiciary. tributions to the Bar and to President Dwight D. Eisenthe community. She received hower proclaimed the first Law the Judge Thomas Gibbs Gee Day in 1958 and stated, “In Hon. Jennifer Walker Elrod award for her pro bono work a very real sense, the world no longer has a and has twice received the President’s Award choice between force and law. If civilization from the Houston Bar Association. In 2004, is to survive, it must choose the rule of law.” the Houston Young Lawyers Association Since President Eisenhower’s proclamation, (HYLA) named her the Woodrow Seals May 1st has been marked a day of national Outstanding Young Lawyer of Houston, recognition of our country’s heritage of lib- and in 2012, HYLA presented her with the erty, justice and equality under the law. Outstanding Mentor Award. In 2008, the President Lyndon B. Johnson stressed Mexican-American Bar Association of Texas the importance of voting rights—the theme named her Judge of the Year. of this year’s Law Day—when he stated, “In Judge Elrod is honored to be a part of our system, the first right and most vital of all the DBA’s celebration of Law Day, and she our rights is the right to vote. . . . It is from believes that President Eisenhower’s words at the exercise of this right that the guarantee of the first Law Day proclamation—that withall our other rights flows. Unless the right to out the rule of law, civilization could not survote be secure and undenied, all other rights vive—are as crucial today as they were then. are insecure and subject to denial for all our Judge Elrod is committed to promoting the citizens.” The right to vote is the foundation rule of law for citizens living in a democratic of government by the people, and although republic. While presiding over naturalization the struggle to establish and protect every ceremonies, Judge Elrod has seen first-hand citizen’s right to vote began decades ago, the appreciation new American citizens have there is still work to be done to ensure that for their rights in our country. Judge Elrod all Americans have the right to participate in also notes that the importance of the rule of our democracy. law in securing the right to vote is evident in Even in today’s modern democracy, citi- news from around the world, such as in the zens frequently face avoidable barriers to vot- striking pictures of the Iraqi people proudly ing participation. The bipartisan Presidential holding up their purple-stained fingers after Commission on Election Administration, voting for the first time. Judge Elrod comfor example, found that voters frequently mends the DBA for celebrating Law Day and stand in long lines caused by broken voting for spending time in schools to help children machines, confusing ballots and untrained or learn the importance of the rule of law. undertrained poll workers. This Law Day, let The luncheon begins at noon on Friday, us reflect upon what each of us can contrib- May 2, 2014, at the Belo Mansion. Doors ute to minimize these obstacles and promote open at 11:45 a.m. Tickets are $40 per perthe voting rights of ourselves and our fellow son or $400 per table. For tickets or more Americans. information, contact Mary Ellen Johnson The Dallas Bar Association will continue at mjohnson@dallasbar.org or (214) 220its tradition of celebrating Law Day with a 7400. Reservations are available online at luncheon honoring the judiciary, featuring ww.dallasbar.org. HN keynote speaker the Honorable Jennifer Walker Elrod, Circuit Judge, United States Meghan Hausler is an associate with Baker & McKenzie LLP and a CoCourt of Appeals for the Fifth Circuit. Vice Chair of the DBA’s Publications Committee. She can be reached at Judge Elrod is a Phi Beta Kappa gradu- meghan.hausler@bakermckenzie.com.

Keynote Speaker Honorable Jennifer Walker Elrod

The Dallas Bar Association E-Mentoring Committee hosted a year-end banquet for the 2013-2014 Dallas ISD E-Mentoring students and mentors. Attending were (left to right) Co-Chair Ashley Sissell, DBA President Scott McElhaney, keynote speaker retired Dallas Maverick Rolando Blackman, and Tracy Graves Wolf. Thank you to all of the volunteer attorneys who participated in this program. Find out more at www.dallasbar.org/ementoring.

Focus

Energy/Environmental Law

Where Does All the Water Go? by R. Grant Wood

Unless you have been hiding under a rock for the past eight years, you have probably noticed the increased reporting of the Texas Energy Boom. If you have been hiding under a rock and depending on the depth of that rock, you may have encountered oilfield brine, the subject of this article. A few statistics about oil and gas underscore the importance of disposal wells within our state’s energy infrastructure. There are over 409,000 oil and gas wells in the State of Texas. Since 1936 there have been around 107,000 wells permitted for injection in Texas, with over 55,000 current injection well permits. In addition, there are over 33,000 active permits. The occurrence of ancient saltwater in productive oil and gas formations presents a different kind of water challenge than we normally deal with in Texas. Unlike scarce surface water, energy-related water is a waste product of oil and gas production. Naturally occurring saltwater brought to the surface during oil and gas production is referred to as produced water. Production of this type of water can range from nearly zero to many thousands of barrels per day. With the advent of hydraulic fracturing, there has been a rise in another class of water, called flowback. Flowback and produced water are similar in that they both contain high levels of total dissolved solids (TDS). The source

and makeup of those TDS differ, however. In produced water, there are traces of hard rock minerals from the interval where the water was produced. Also, produced water contains dissolved hydrocarbons and naturally occurring radioactive materials, including radium isotopes. In contrast, flowback contains a “cocktail” of suspended particles, including clays, sands, chemical additives, and dissolved metals, with chemicals typically constituting 0.5% or less of the volume. Regardless of the classification of the water, we cannot simply make it go away, or dispose of these volumes on the surface. Regulation of produced water and flowback is predominately accomplished by utilizing Class II wells, which fall under the regulatory authority of the Texas Railroad Commission (Railroad Commission). On April 23, 1982, the Environmental Protection Agency awarded the Railroad Commission “primary enforcement responsibility” over oil and gas injection and disposal wells in Texas. Administration of this program falls to the Technical Permitting Section-Underground Injection Control (UIC) program of the Railroad Commission. Class II wells are utilized for injecting waste arising out of, or incidental to, drilling for or production of oil, gas, or geothermal resources. Other permitted uses for Class II wells include the underground storage of Continued on Page 10

Inside 9 Joint Development Trends in Oil & Gas Transactions 11 Environmental Programs That Close Real Estate Transactions 13 Three Steps for Beginning Your Energy Litigation Practice

Save the Date!

Friday, May 30, Noon at Belo MCLE 1.00 “Dismantling the Schools to Prison Pipeline: What Can Lawyers Do?” Celebrating the 60th Anniversary of Brown v. Board of Education Sponsored by: Dallas Bar Association, DBA Juvenile Justice Committee, DBA Mentoring Committee, DBA Community Involvement Committee, DBA Law in the Schools Committee, J.L. Turner Legal Association, Dallas Hispanic Bar Association, Dallas Asian American Bar Association

2 He a d n o t e s l D a l l a s B a r A s s o ciation

Calendar

April Events

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

FRIDAY CLINICS

APRIL 4-BELO Noon

A pri l 2014

“Attorneys’ Fees: Setting and Collecting Them,” Robert Tobey. (MCLE 1.00)* RSVP to kzack@dallasbar.org.

FRIDAY, APRIL 11 Noon

APRIL 11-NORTH DALLAS** Noon

“Considerations in Drafting Arbitration Clauses,” Elizabeth Scott and Scott Williams. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org.

TUESDAY, APRIL 1 Noon

Corporate Counsel Section “The Cyber Security Landscape: Thoughts on the Latest Threats, Legal Obligations and Potential Liabilities,” Shawn Cleveland, Jay Johnson and Matt Orwig. (MCLE 1.00)*

WEDNESDAY, APRIL 2

9:00 a.m. DVAP Family Law Nuts & Bolts Video (MCLE 6.00; Ethics 2.00)* For information contact perkinsa@lanwt.org.

Employee Benefits & Executive Compensation Section “Current Challenges Faced by Church Plans,” Danny Miller. (MCLE 1.00)* Solo & Small Firm Section “Technology in the Courtroom,” Paul Malouf. (MCLE 1.00)*

Juvenile Justice Committee

Public Forum Committee

DAYL Judiciary Committee

THURSDAY, APRIL 3

Construction Law Section “Worker Classification Issues in the Construction Industry – What You Need to Know,” Michelle Morgan. (MCLE 1.00)* Judiciary Committee “Persuasive Writing and Courtroom Presentation: Tips For More Effective Advocacy,” Hon. Catharina Haynes, Hon. Debra Lehrmann, Hon. Liz Lang-Miers and Danny Tobey, moderator. (MCLE 1.00)*

Family Law Section Board Meeting St. Thomas More Society

FRIDAY, APRIL 4

8:45 a.m. Dallas Minority Attorney Program Learn more about business development and practice management for the solo, small firm and minority attorney. Luncheon speaker: Lisa Tatum, President, State Bar of Texas. RSVP to ahernandez@dallasbar.org. (MCLE 7.00)* Noon

Friday Clinic at Belo

Tax Law Section “What to do When CI Knocks on the Door: an Overview of Criminal Tax and Bank Secrecy Act Investigations,” Robert Kemins and Michael Villa. (MCLE 1.00)*

TUESDAY, APRIL 8 Noon

Business Litigation Section “Supreme Court of Texas Update for Business Litigators and Trial Lawyers,” Justice Jeff Brown and Joe Cox. (MCLE 1.00)*

Trial Skills Section “Witness Preparation: Failing to Prepare is Preparing to Fail,” David Carlock, Rob Crain and Chris Lewis. (MCLE 1.00)*

DAYL Freedom Run Committee

7:30 p.m. DBA Night with the Dallas Stars. Tickets online at https://oss.ticketmaster.com/aps/dallasstars/EN/ promotion/home.

MONDAY, APRIL 14 Noon

Alternative Dispute Resolution Section “Dispute Resolution in the Public Sector,” Panel of Members of the Dallas City Council and Local Mediators. (MCLE 1.00)*

Real Property Law Section Topic Not Yet Available

Peer Assistance Committee

TUESDAY, APRIL 15

MONDAY, APRIL 21 Noon

Labor & Employment Law Section “The NLRB for Union and Non-Unionized Employers,” Dan Dargene. (MCLE 1.00)*

Senior Lawyers Committee Speaker Holly Carroccio, Nexus Advisors. (MCLE 1.00)*

TUESDAY, APRIL 22

11:45 a.m. Government Law Section “Investigation and Discipline of Government Employees and Impact of Internal Review: Legal and Strategic Issues,” Darrell G-M Noga. (MCLE 1.00)* Noon

Probate, Trust & Estate Law Section “Case Law Update,” Prof. Gerry Beyer. (MCLE 1.00)*

American Immigration Lawyers Association

DAYL Solo & Small Firm CLE

WEDNESDAY, APRIL 23

10:00 a.m. Securities Section “SEC update on Enforcement, National Exam Program and Cyber Security,” Marshall Gandy, David Peavler and David Woodcock. (MCLE 2.75) Noon

Sports & Entertainment Law Section “The Nature of the Contract between Colleges and their Athletes,” Brad Sham. (MCLE 1.00)*

DVAP CLE “Juvenile Issues From Arrest to Detention Hearing,” Ezekiel “Zeke” Tyson, Jr. (MCLE 1.00) For more information, contact perkinsa@lanwt.org.

Noon

Franchise & Distribution Law Section “What I Learned in Franchising,” Phil Romano. (MCLE 1.00)*

DAYL Foundation Board Meeting

DVAP New Lawyer Luncheon. For more information contact reed-brownc@lanwt.org.

International Law Section Topic Not Yet Available

THURSDAY, APRIL 24

Legal Ethics Committee

DAYL Lawyers Promoting Diversity 6:00 p.m. Home Project Committee

Legal Ethics Committee “A ‘Friend’ at Court? Lawyers, Judges, and the Ethics of Facebook Friendships,” John Browning. (Ethics 1.00)*

DAYL Elder Law Committee

WEDNESDAY, APRIL 9

WEDNESDAY, APRIL 16

Mergers & Acquisitions Section “Recent Due Diligence and Preparation Trends in M&A Transactions,” Regina Balderas, Ryan Burke and Lance Turner. (MCLE 1.00)*

7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group

5:30 p.m. Bankruptcy & Commercial Law Section “Multiemployer Plan Issues to Watch for During Transactions - For the Buyer and the Seller,” Mo Garfinkel and Suzanne Kelly. (MCLE 1.00)*

Noon

Crawfish for Cancer. 2900 McKinney Ave. for all-you-can-eat crawfish and live music. $20 donation at the door. All proceeds benefit Susan G. Komen for the Cure. Sponsored by the DBA Entertainment Committee, Three Sheets Uptown and The Standard Pour.

MONDAY, APRIL 7

DBA Arts Month Happy Hour at Belo/Crow Collection of Asian Art Museum. RSVP to rthornton@dallasbar.org.

6:00 p.m. DAYL Board of Directors Meeting

Noon

5:30 p.m. Bar None XXIX Auditions

SATURDAY, APRIL 5

Tort & Insurance Practice Section “Texas Trial Legend Honorees Panel Discussion,” Stephen Johnson, Harriet Miers, Rod Phelan and Hon. Mary Murphy, moderator. (MCLE 1.00)* DBA Community Service Fund Board Meeting

“Attorneys’ Fees: Setting and Collecting Them,” Robert Tobey. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.

Friday Clinic-North Dallas** “Considerations in Drafting Arbitration Clauses,” Elizabeth Scott and Scott Williams. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org.

11:30 .m. House Committee Walk Through Noon

Family Law Section “Role of a Receiver in Family Law Cases,” Craig Penfold. (MCLE 1.00)*

Morris Harrell Professionalism Committee “Why Civility Matters,” Jim Coleman, Jim Cowles, Sarah Saldana and Linda Eads, moderator. (Ethics 1.00)*

Bench Bar Conference Committee

DAYL Lunch & Learn CLE

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

THURSDAY, APRIL 10 Noon

CLE Committee

Law in the Schools & Community Committee

Publications Committee

Christian Lawyers Fellowship

DAYL How to Get Involved Meeting

DAYL Lawyers Serving Children Committee

6:00 p.m. J.L. Turner Legal Association

Noon

Energy Law Section “Keeping your Trade Secrets Secret,” Charles Sartain. (MCLE 1.00)*

Health Law Section “Recent Settlements and Developments With Respect to the Stark and Anti-Kickback Statutes,” Darrell Armer and Joe Nelson. (MCLE 1.00)*

Noon

Collaborative Law Section “Introducing the Collaborative Approach to Prospective Clients Dealing with Civil Disputes,” Robert A. Miller and Anne Shuttee. (MCLE 1.00, Ethics 0.25)*

Criminal Law Section “Discovery in Criminal Law -Applying the Michael Morton Act,” Bruce Anton and Russell Wilson. (MCLE 1.00)*

Environmental Law Section “U.S. House of Representatives Update,” Congressman Michael C. Burgess, M.D. (MCLE 1.00)*

FRIDAY, APRIL 25 Noon

Intellectual Property Law Section “Intellectual Property Holding Company: Tax, Standing, Damages and Other Litigation Issues,” Prof. Xuan-Thao Nguyen. (MCLE 1.00)*

Law Day Committee

Pro Bono Activities Committee

Transition to Law Practice Committee

Non-Profit Law Study Group

DAYL CLE Committee

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

THURSDAY, APRIL 17 Noon

Appellate Law Section “Federal Practice Update,” David Coale. (MCLE 1.00)*

Minority Participation Committee

Summer Law Intern Program Committee

Christian Legal Society

DAYL Animal Welfare Committee

Dallas Gay & Lesbian Bar Association

MONDAY, APRIL 28 Noon

Computer Law Section “Maintaining Privilege for In-House Communications,” David Tobin. (Ethics 1.00)

Golf Tournament Committee

DAYL Solo & Small Firm Committee

TUESDAY, APRIL 29

6:00 p.m. Dallas Hispanic Bar Association

WEDNESDAY, APRIL 30 Noon

DAYL Animal Welfare Committee CLE “Recent Changes in Animal Law Legislation.” For more information, email cherieh@dayl.com.

DAYL Equal Access to Justice Committee

Municipal Justice Bar Association

3:30 p.m. DBA Board of Directors Meeting

FRIDAY, APRIL 18

DBA Offices Closed in Observance of Good Friday

Mother’s Day Brunch At the Pavilion at the Belo Mansion

Sunday, May 11, 2014

oin us for a culinary tour at the beau�ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace over‐ looking the Arts District and enjoy complimentary champagne and mimosas. A boun�ful selec�on of fresh fruit, breakfast breads, chilled seafood sta�on, carved prime rib, omelets and freshly made pancakes and waﬄes, a variety of pies, cakes and sweets and the ever‐popular children’s buﬀet. Serving hours from 10:30 a.m. to 2:30 p.m. | Adults: $39.00; Children 6-12: $13.00 Garage parking available ( from Olive Street ) Taxes, gratuities and parking not included Reservations Required by May 6. Credit Card to hold reservation. No-shows will be billed. Call: ( 214 ) 220-0239 or e-mail jgreer@dallasbar.org. Limited seating. Sponsored by the DBA Entertainment Committee.

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.

April 2 0 1 4 â&#x20AC;

D al l as Bar A ssoci ati on l Headnotes 3

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5600 W. Lovers Ln. Ste. 224, | Dallas, TX 75209

4 He a d n o t e s l D a l l a s B a r A s s o ciation

A pri l 2014

Headnotes

President's Column

Mock Trial, Genuine Competition. Scott M. McElhaney

Campbell Colquitt was astonished when she saw a post on her company’s electronic bulletin board stating that she had contracted a rare but horrid and extremely contagious disease called Seeliasis on her recent vacation in the tropics. She was even more shocked when she saw that a co-worker named Casey Hogg appeared as the author of the post. Both Colquitt and Hogg had applied to become the new Manager of Quality Control for their employer, HOPco. Colquitt, a well-regarded mechanical engineer with about ten years of experience, was generally considered to be in line to succeed Judy Yarbro as the quality control manager. Hogg had qualifications of his own and was liked by some of the executives at the company, but he did not have as much experience at HOPco. Colquitt had returned from her vacation just in time for her interview for the manager position. She had a bad sunburn and blisters from spending too much time hiking in the noon-day sun. She looked terrible. During her interview, she began feeling ill and had to leave early in order to go to the doctor. A day later, Colquitt’s doctor, Sayers Stockdale, told her that a blood test showed that she had Seeliasis and that she had to be quarantined immediately. Colquitt did not tell anyone about her diagnosis except for her close friend, Sterling Hobby, who had also applied for the quality control manager position. It turns out that Colquitt did not have Seeliasis. A few days after the first diagnosis, the blood testing lab called Dr. Stockdale’s office to say that further exams had revealed that Colquitt only had Shigellosis, an infection easily treated with antibiotics. The nurse who received the message ran through the office waiting room shouting to the doctor that Colquitt did not have Seeliasis, but only Shigellosis. It turns out that Hogg was in the waiting room, waiting to have his annual physical. The next day, the post about Colquitt having Seeliasis appeared on the company bulletin board. Many co-workers added comments that Colquitt never should have come back to work and exposed them to a contagious disease that caused cramps, nausea, vomiting, and oozing blisters. When Colquitt came back to work, she was shunned and isolated. That is when she saw the posts about her supposed case of Seeliasis. When Hogg won the promotion for the quality control manager position, Colquitt thought she knew what had happened: Hogg had posted a false story about her in order to win the job. She decided to sue for defamation. Discovery revealed interesting facts. Hogg swore in his deposition that he did not write the post and that he had locked his computer and gone on a break when the post was made from his computer. A company investigation showed that Hobby, the only person who Colquitt had told about the Seeliasis diagnosis, had made Internet searches from her work computer about the disease. Hobby was also a self-confessed germaphobe, and she took it upon herself to clean and disinfect many of the HOPco offices. She was seen entering Hogg’s office (ostensibly to clean it), but witnesses were unsure whether it was on the day the post appeared. Hobby also claimed that she did not know Hogg’s computer password, but Hogg said that it was widely known that HOPco employees kept their passwords on notes taped under their mouse pads. So did Hogg make the Seeliasis post knowing it was false in an

effort to boost his chances for the promotion? Or did Hobby make the post, hoping to frame Hogg and increase her own chances at getting the job? Only a trial could answer the question. This fictional case, set in a world where most of the characters have the same names as former Texas governors, formed the dispute that high school mock trial teams have been trying in competitions across Texas this year. In early March, 24 of the best teams from across the state gathered at the George Allen Courthouse in Dallas for the Texas High School Mock Trial Championships. The Dallas Bar Association’s Mock Trial Committee has organized and administered this competition for the entire state for the past 35 years. The committee—led by Steve Gwinn, Steve Russell, Jennifer Crane and Prater Monning—volunteers an untold number of hours preparing case materials. Along with State Mock Trial Coordinator Kimberlynn Taylor, who ably stepped in in the middle of the year, the committee also coordinated and ran many of the regional tournaments that precede the state finals. Of course, the real work was done by the teams of 10 students from the participating high schools who act as the lawyers and witnesses. The mock trial program gives students the experience of trying a case in a real courtroom in a hands-on role. Trials are structured just like a real court, and the rules of evidence apply. The students learn exactly what role judges, lawyers, witnesses play in the judicial system. The teams are coached by teachers and often by volunteer attorneys who help the students prepare. The preparation is intense and thorough. One mother of a student in the state championship this year reported that her child’s team had been scrimmaging after school until about 8:00 pm most days for the preceding few weeks, leaving homework to be done from the time students got home through about midnight. Many DBA members contributed time and energy to make this year’s competition a rousing success. Judges lent their courtrooms for the competition. Hundreds of DBA members volunteered to serve as scoring judges, and several real judges volunteered to preside over the mock trials, including judges Elizabeth Frizell, Lana Myers, Elizabeth Lang-Miers, Irma Ramirez, Jeff Rosenfield, Doug Skemp and Ken Tapscott. The competition also could not be the success it was without the financial support of the Gwinn Family Foundation, Tom Goranson, Peter Malouf, the DBA Tort & Insurance Practice Section and the Dallas Bar Foundation. This year’s final four consisted of Carrollton Creekview High School, Covenant Classical School from Fort Worth, Dallas Hillcrest High School and Richardson High School. Covenant Classical’s tournament run was especially impressive, as this is its first year participating in the mock trial competition. The final round pitted last year’s champion, Creekview, against Hillcrest, which fielded a team mostly made up of younger students. In the end, Creekview prevailed with an outstanding performance from both witnesses and lawyers alike. As Justice Lana Myers said after the round, the performance of both teams was better than one often sees in a real courtroom. As Texas state champions, Creekview will travel to the National High School Mock Trial Championship in Madison, Wisconsin in about a month. Creekview represented Texas at the national competition last year, and learned a great deal there. With a team of six seniors, three juniors, and a sophomore, let’s hope that they prevail in Wisconsin and bring home a national championship. HN

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Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Scott M. McElhaney President-Elect: Bradley C. Weber First Vice President: Jerry C. Alexander Second Vice President: Rob Crain Secretary-Treasurer: Audrey Moorehead Immediate Past President: Sally L. Crawford Directors: Tatiana Alexander (President, J.L. Turner Legal Association), A. Shonn Brown (At-Large), Wm. Frank Carroll, Laura Benitez Geisler (Vice Chair), Hon. Martin Hoffman, Hon. David Horan (Judicial At-Large), Michael K. Hurst (Chair), Krisi Kastl, Michele Wong Krause, Meyling Ly (President, Dallas Association of Young Lawyers), Karen McCloud, Courtney Barksdale Perez (At-Large), Sakina Rasheed (President, Dallas Asian American Bar Association), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Elisabeth A. Wilson (President, Dallas Hispanic Bar Association) Advisory Directors: Jonathan Childers (President-Elect, Dallas Association of Young Lawyers), Monica Lira (President-Elect, Dallas Hispanic Bar Association), Bill Richmond (PresidentElect, Dallas Asian American Bar Association) and Ebony Rivon (President-Elect, J.L. Turner Legal Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Andy Payne, Florentino A. Ramirez and Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Jared Slade Vice-Chairs: Paul Clevenger and Meghan George Members: Timothy Ackermann, Vincent Allen, Natalie Arbaugh, Benjamin Barmore, Joi-lee Beachler, Martha Beard-Duncan, Lisa Blackburn, Jason Bloom, Eric Blue, Leigh Bradford, Bobby Braxton, Kandice Bridges, Kelsey Brock, Sara Ann Brown, John G. Browning, Casey Burgess, Eliot Burriss, Stacie Cargill, Nancy Carroll, Lance Caughfield, Julie Chandler, Joel Crouch, Walter Dean, Lea Dearing, David Dodds, Adam Dougherty, Brandon Duck, Christopher Elam, Alexander Farr, J. Martin Futrell, Jenny Givens, Jennifer Gjesvold, Andrew Gould, James Gourley, Nadia Haghighatian, Susan Halpern, William Hammel, Jordan Harrison, Jeremy Hawpe, John Herring, Zachary Hilton, Kelli Hinson, Tyler Hokanson, Alison Hollender, Mary Louise Hopson, Mandy Jenkins, Soji John, Amanda Kelley, Cynthia Jon-Ubabuco, Yoon-Joo Jung, Tiffany Kamuche, Nicholas Kennedy, Adam Kielich, Michelle Koledi, Matthew Kolodoski, Susan Kravik, Norman Lofgren, Sixuan Lu, Margaret Lyle, Ashley Mason, Andrew Mayo, Jennifer McCollum, Christina McCracken, R. Sean McDonald, Scott McElhaney, Elizabeth “Jodi” McShan, John McShane, Michael Merrick, Christopher Meuse, Aaron Michelsohn, Wendy Mills, Constance Mims, Ethan Minshull, Paige Montgomery, Caitlin Morgan, Hon. Jim Moseley, Terah Moxley, Derek Neilson, Nick Nelson, Christopher Norcross, David Parham, Murali Pasupulati, Seth Phillips, Keith Pillers, Amiee Pingenot, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Ellen Pryor, Gabriel Reyes, Edward Rice, Morgan Richards, David Ritter, Carl Roberts, Richard Salgado, Joshua Sandler, Brandon Schwarzentraub, Calvin Scott, Ifeyinwa “Ify” Seales, Isabel Segarra, Micah Skidmore, Crystal Smith, Phillip Smith, Bradley Smyer, Yon Sohn, Thad Spalding, Timothy Springer, Jacob Stasny, Cori Steinmann, John Stevenson, Scott Stolley, Brian Stork, Amy Stowe, Billye Summers, Kristopher Tate, SaKinna Thomas, Pryce Tucker, Brent Turman, Peter S. Vogel, Whitney Warren, Bradley C. Weber, Suzanne Westerheim, Elisabeth Wilson and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Marisol Guzman, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2014. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

April 2 0 1 4

Focus

D al l as Bar A ssoci ati on l Headnotes 5

Energy/Environmental Law

Do Horizontal Wells Implicate Texas Pooling Laws? by D. Jason McCoy

One of the latest hot topics in Texas oil and gas litigation involves the issue of implied pooling of horizontal wells. The issue is whether and to what extent horizontal wells implicate the pooling laws designed for traditional, pooled wells. Specifically, must an operator first obtain pooling consent from all drillsite royalty owners represented by a horizontal well before using their tracts to host a portion of the well? Operators and royalty owners answer this question differently. Royalty owners often argue the consent requirement should apply to all horizontal wells merely because, like a traditional pooled well, the operator must allocate royalty payments among multiple owners jointly represented by a single well. They allege that this is tantamount to a cross-conveyance of real property, which cannot be conveyed without express written consent of the owner. The argument is premised on the fact that an operator intends to produce minerals from multiple drillsites and commingle them within the horizontal wellbore. Operators assert the royalty owners’ argument fails to recognize that the sort of pooling uniquely associated with horizontal well production has nothing to do with real property. Texas property law distinguishes between minerals before and after production: oil and gas in place (i.e., pre-production) is real property; oil and gas production is not. According to Texas courts, oil and gas in place becomes production when it leaves the formation and enters the wellbore. In contrast to traditional pooling, which involves constructively joining tracts (via contract) to pool oil and gas in place, tracts pooled via horizontal wellbore are actually, physically joined, and the pooling of min-

erals would be pooled production (not pooled minerals in place). Accordingly, operators argue this sort of pooling has no effect on minerals in place or real property, therefore consent is not necessary. Because horizontal pooling does, by definition, involve pooling of production, it may be more prudent to apply the rules governing surface commingling, where production from disparately owned tracts are combined into tanks for storage and royalties are allocated back to the rightful owner when sold. There, operators do not need consent as long as production allocations can be attributed to the true royalty owners with reasonable probability based on the operator’s measurements prior to commingling. Notably, in 2011, the legislature seemed to adopt this logic when it proposed House Bill 2087 (Bill), which implied that horizontal wells did not necessarily require consent provided minerals are allocated to the rightful drillsite tract based on methods prescribed in the Bill or by the Texas Railroad Commission (Commission). However, despite favorable reception, the Bill died before it passed, and it remains to be seen whether it will be revived. Currently, there is no clear guidance on the horizontal pooling issue. In fact, administrators of Texas oil and gas laws have taken different approaches to address the interplay between horizontal and pooled wells. In 1995, the Commission began changing its permitting rules to suggest that horizontal wells do not imply pooling. It introduced two permitting options—production sharing agreement (PSA) well permits and allocation well permits. With this, the Commission began permitting horizontal wells without first requiring drillsite royalty owners’ consent authorizing the operator’s method

for allocating royalties among the various drillsite tracts represented by the well. Notably, to the extent an operator seeks to constructively join nondrillsite tracts with drillsite tracts (i.e., traditional pooling), the Commission still requires consent before issuing a permit. While the issue remains unsettled, operators must be wary of the method for allocating royalties among the drillsite owners joined by a PSA or allocation well. The courts and legislature have taken a stagnant approach and provided no meaningful guidance as to whether drillsite-to-drillsite royalty allocations require consent. As it is, an operator who uses PSA or allocation well permits to drill a horizontal well across a non-consenting drillsite owner’s tract could risk a financially devastating lawsuit for exceeding its allocation authority, which is generally established in an existing

pooling clause as part of the lease or a separate contract. Notwithstanding that the parties unlikely intended such clause would apply to a horizontal well, to avoid this risk, an operator’s only choice is to incur the costly burden of renegotiating lease terms to expand the scope of the pooling clause by expressly providing operators with authority to allocate proceeds among drillsite royalty participants of a horizontal well. In the meantime, in order to navigate the inevitable litigation that will emerge from this issue, oil and gas attorneys must familiarize themselves with the complex policy arguments for and against imputing pooling laws to horizontal wells, and, more importantly, how to calculate potential dam HN ages. Jason McCoy is an associate at Rapier & Wilson, P.C. and can be reached at mccoy@rapierwilson.com.

2014 Conference of the Professions Agony & Ecstasy: How Your Emotions Affect Practice Friday, May 9, 2014, 8:00 - 11:30 a.m. at Texas Scottish Rite Hospital Keynote Speaker: Danielle Ofri, MD, author of What Doctors Feel Panelists: Dr. Wayne Albrecht, James Wagner and Will Pryor Cynthia Pladziewicz, Moderator Fee: $25/per person. Register online at www.smu.edu/Provost/Ethics

Persuasive Writing and Courtroom Presentation Tips for More Effective Advocacy Speakers: Hon. Catharina Haynes, Hon. Debra Lehrmann, Hon. Liz Lang-Miers, Danny Tobey, Moderator MCLE 1.00 • Thursday, April 3, 2014, Noon at Belo Sponsored by the DBA Judiciary Committee

Now You Have a Choice Do your Labor and Employment referrals receive the attention they deserve? Send your referral to the front of the line. Contact Joe Kendall or Matt Scott at 214-744-3000.

Advocating for employees from all walks of life. 3232 McKinney, Suite 700 | Dallas, Texas 75204 www.kendalllawgroup.com

6 H e a d n o t e s l D a l l a s B a r A s s o ciation

A pri l 2014

To Document and Preserve: Practical Advice for Construction Clients by Paul A. Derks

The lifeblood of construction cases is documentary evidence. Often damages, and even injuries, are not discovered or disclosed until after the passage of significant amounts of time. Documentation of work events and activities on a site usually provides the best evidence available to a construction lawyer. How well your client documents and preserves activities and interactions on the worksite can significantly impact construction claim results. Regardless of whom you represent, practical advice should be given to your client to ensure proper documentation of activities taking place on the worksite. Today’s technology offers many viable and affordable options for documenting, disseminating and preserving key information. A culture of documentation also

causes workers to be more attentive and diligent in observing safety rules because they know “big brother” is watching them. Smartphones are pervasive but often not utilized to their full potential. A smart phone’s camera and video tools can record daily site photographs and videos. This evidence provides a wealth of information. Documentation of construction progress can be used to pursue or defend claims that materials were not installed correctly. Dated photographs can support or rebut delay claims. Photographs of construction equipment can buttress or defeat allegations it was unsafe or lacked proper warnings. Sequencing of construction can be discerned through daily photo logs. Safety meetings can be documented and, if videotaped, replayed later for new hires so they are privy to specific jobsite hazards previously discussed.

Sustaining Members of the Dallas Bar Association The DBA sincerely appreciates the support of its Sustaining Members whose financial contributions enhance the preservation of the historic Belo Mansion.

Visual evidence impacts jurors as well. Jurors expect to “see” the event or defect being discussed in Court. The phrase, “a picture is worth a thousand words” has endured through the years for good reason. What a person can analyze with their own eyes will impact their opinions far more than hours of testimony. If an accident occurs, the camera and video capabilities on the phone can be used to document then existing conditions on the site. Most phones also have applications which allow users to digitally record statements. If the phone does not have this application, it can be freely downloaded. Immediate documentation of site conditions, equipment used, and the taking of statements from witnesses often determinatively decides the ultimate result of an injury claim. Digital cameras are also very useful in documenting construction projects. They are cheap and offer the ability to store significant amounts of photographs and videos at a low cost. Higher end cameras allow users to dictate observations which are digitally attached to the photographs being taken. When reviewed later, a user can listen to real time observations in conjunction with viewing the photographs. However, no amount of documentation is of assistance if the client is not diligent in preserving it. Many lawyers have been faced with the client who “lost” the project file, whose laptop, camera or phone was lost or stolen, or whose computer system “crashed.” Documentation of conditions only works if the data is properly preserved. Luckily, many cheap storage options are available which effectively safeguard large amounts of data. Clients should be counseled to have

a system for depositing information into a central location. This can be as simple as requiring daily or weekly data dumps into a project folder on a centralized server. Subfolders should be created as the project progresses so the data can be easily located. If the client does not have a server, an external hard drive can be purchased. An external hard drive can be connected to a local computer through a USB cable. Reputable companies offer various models with different storage capacities. You can obtain more than a terabyte worth of storage for less than $100. Such a drive can easily store over 150,000 high quality photographs with room to spare for contracts, e-mails, correspondence, videos, plans, specifications and other documents. You can also use external hard drives in conjunction with Wi-Fi modems to create a central archive which can be remotely accessed when workers log into the office’s Wi-Fi system. Many Wi-Fi modems offer the capability of connecting the external hard drive directly to the modem. All users connected to the Wi-Fi can then access and save data to the Wi-Fi connected hard drive. All information should be periodically backed up to a secondary drive to prevent loss. Many programs are available which automatically backup data to a secondary drive. Documentation and preservation of evidence is the key to winning the battle in construction litigation. Advising your clients to document, disseminate and preserve key information will protect them and make your job easier if a claim HN arises.

Ben Abbott Ben Abbott, P.C.

Sawnie A. McEntire Beirne, Maynard & Parsons, L.L.P.

Randolph D. Addison Addison Law Firm P.C.

Mike McKool, Jr. McKool Smith P.C.

Frederick J. Barrow The Godsey Martin Law Firm, P.C.

Tahira Khan Merritt Tahira Khan Merritt PLLC

William W. Camp William W. Camp, P.C.

Nancy Arnole Nasher NorthPark Development Company

David Carlock Carlock-Gormley-Hight

Robert H. Osburn Robert H. Osburn, P.C.

Carol Crabtree Donovan Carol Crabtree Donovan, PC

Ellen Smith Pryor University of North Texas System

Al Ellis Sommerman & Quesada, L.L.P.

Richard D. Pullman Kessler Collins, P.C.

David L. Godsey The Godsey Martin Law Firm, P.C.

Glynis W. Redwine The Redwine Law Firm

Hon. Bonnie L. Goldstein Bonnie Lee Goldstein, P.C.

Michael L. Riddle Middleberg, Riddle & Gianna

James J. Hartnett, Jr. The Hartnett Law Firm

Scott R. Seideman The Seideman Law Firm

Houston E. Holmes, Jr. Attorney at Law

Daniel J. Sheehan, Jr. Daniel Sheehan & Associates, L.L.P.

Kathleen E. Irvin Attorney at Law

Darryl J. Silvera The Silvera Firm

ARE YOU A MEMBER OF THE 2014 DBA 100 CLUB?

Justice Tom James Attorney at Law

M.J. Trusty Guaranty Bond Bank

What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association.

Kristina N. Kastl Kastl Law, P.C.

Peter S. Vogel Gardere Wynne Sewell LLP

What is the cost to join the DBA 100 Club? It’s FREE!

Justin Martin The Godsey Martin Law Firm, P.C.

Debra L. Witter The Witter Law Firm

Paul A. Derks is a partner with Fee, Smith, Sharp & Vitullo, LLP and can be reached at pderks@feesmith.com.

How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are a member of the Dallas Bar Association. To join the 2014 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2014 DBA 100 Club membership list! What are the perks? Our 2014 DBA 100 Club members will be recognized in Headnotes, the 2015 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.

PLEASE SAVE THESE DATES October 5‐11, 2014

JOIN TODAY!

Family Law “Nuts & Bolts” Video Wednesday, April 2, 2014, 9:30 a.m. to 3:30 p.m. Belo MCLE 6.00, Ethics 2.00 Free to those volunteering to take a DVAP case (or $200 if not).

President Jimmy Carter, together with thousands of volunteers, will be in the DFW area for a weeklong build. The DBA and the sister bar associa�ons will partner with Dallas Habitat for Humanity on this project. For more informa�on about volunteering, contact kzack@dallasbar.org.

Juvenile Issues From Arrest to Detention Hearing Wednesday, April 23, Noon, Belo MCLE 1.00 Free to those volunteering to take a DVAP case. To register, contact Alicia Perkins at perkinsa@lanwt.org.

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D al l as Bar A ssoci ati on l Headnotes 7

Energy/Environmental Law

Conservation Easements and the Enhancement of Planned Communities by John Dugdale

A conservation easement is a voluntary and perpetual restriction on the beneficial use of a property a landowner places in the hands of a “holder,” in this instance a land trust. In the context of this article, a conservation easement is a contract between the developer and the land trust to preserve in perpetuity what are known as conservation values. The intent of a conservation easement is to protect ecological/biological, cultural, historical, aesthetic or vegetative/geological features unique to the property. Like any deed restriction, a conservation easement runs with the land and therefore diminishes the bundle of rights inherent to a property. However, the landowner does retain legal title to the property in question. Typically, the purpose of establishing a conservation easement is to preserve a property that has significant conservation values. Residential development and conservation are not mutually-exclusive. The preservation of open space that conserves native habitat is something people in North Texas value. Developers of planned residential communities can use conservation easements

in their plans of development to provide “green” aesthetic and recreational common areas that prospective homeowners purchasers find appealing and, therefore, enhance the value of the development project and of the homes situated therein. If the conservation easement and the affected property meet certain IRS requirements, a conservation easement can provide developers and landowners with distinct income and property tax advantages. Please note that this article will not address tax issues in any detail—should you require such information, you should consult with a qualified tax professional. In order for a conservation easement to qualify under IRS regulations as a charitable donation, it must a) serve a bona fide and recognized “conservation purpose,” b) must be permanent and run with the land, and c) must be donated to a qualified 501(c)(3) charitable or governmental organization. Both Federal (26 U.S.C. § 170(h)) and Texas (Chapter 183, TX Natural Resource Code) law treat for tax purposes as charitable donations the granting of qualifying conservation easements, typically where the conservation easement: 1. provides at least one of the following public benefits:

a. the preservation of land for public outdoor recreational or educational purposes; b. the protection of natural or manmade habitats of plant, animal or insect resources; c. the preservation of open space, which includes farms, ranches or forests, either for scenic enjoyment or in keeping with a clearly delineated public policy (such as a local open space plan); or, d. the preservation of historically important land or certified historic structures. 2. is granted in perpetuity; 3. is granted to a qualified organization that is either: a. a nonprofit 501(c)(3) charitable organization (i.e., a land trust) with a conservation purpose and the means to enforce the easement, or b. a local, state or federal public agency. As a general rule, for a conservation development to qualify for such treatment, the ratio of preserved acreage must meet, or exceed, 50 percent of the total landmass (be “density neutral”). In fact, in practice the percentage of the whole preserved ranges from 50 to 70 percent. A model for a successful conservation development is one where the municipality has in place a master development plan that includes a land use plan for a conserva-

Topics Include: court appointments, client development, managing and developing your practice, technology and much more. MCLE 7.00, pending To register, email ahernandez@dallasbar.org.

John Dugdale is Of Counsel at Guida, Slavich & Flores PC and can be reached at dugdale@guidaslavichflores.com.

Professionalism Tip

Dallas Minority Attorney Program Friday, April 4, 2014 | 8:45 a.m.-5:00 p.m. Belo | Free Luncheon Speaker: Lisa Tatum, President, State Bar of Texas

tion development district. Such conservation development districts would have to encompass the specific eco-region where the proposed development would be sited, and the development would necessarily have to conform to any applicable land preservation standards, regulations and ordinances. An easement’s preservation requirements must be enforceable and protect all of the conservation values intended, and none of the gross area of the proposed development may change so that the ratio or identity of the net preserved areas may not change. Therefore, once the conservation easement is executed and filed, the specific preserved acreage within the development cannot be reduced, and the remaining developable acreage that is not subject to the easement cannot be increased. Finally, homeowner associations typically serve as stewards of the conserved lands that form the living core of their community. A conservation ethic homeowners share in common helps to strengthen their community, while the tax advantages and higher sales values help to add to the developer’s HN bottom line.

I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed

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8 He a d n o t e s l D a l l a s B a r A s s o ciation

A pri l 2014

Are You Taking Advantage of Section Benefits? Each of the DBA’s 29 Sections offers cutting-edge CLEs and opportunities for networking and social engagement. Get involved, contact Kim Watson at kwatson@dallasbar.org.

The Judiciary Committee hosted a CLE with Judge Ken Tapscott, Committee Co-Chair Robert Tobey and Judge Martin Hoffman.

The Tort & Insurance Practice Section CLE hosted speakers Pat Wielinski, Meloney Perry and Blake Evans.

Corporate Counsel CLE with speakers Jeff Dempsey, Stan Eigenbrodt and Jill Brooks.

Speakers Judge Royal Furguson, Judge Jeff Kaplan, Judge Irma Ramirez and Britta Stanton present a CLE for the Trial Skills Section.

The Courthouse Committee presented a TexFile CLE with Committee Chair Michele Wong Krause, Judge Sally Montgomery and Brian McGrath.

The Criminal Law Section hosted speaker Gary Frost.

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D al l as Bar A ssoci ati on l Headnotes 9

Energy/Environmental Law

Joint Development Trends in Oil & Gas Transactions by Arthur Wright and Rebecca Seidl

The development of shale plays continues to be the focus of the energy industry. According to the U.S. Energy Information Administration, almost a quarter of the estimated natural gas resources in the U.S. and approximately 24 billion barrels of technically recoverable oil resources are located in shale formations. Producers have been rapidly developing these formations; however, there is a shortage of infrastructure to gather and process the resultant production. Often, producers lack the capital to drill and/or develop the necessary infrastructure. As a result, producers are: (i) forming joint ventures (JVs) with other companies; (ii) seeking investment capital from venture capital firms; and/or (iii) forming joint ventures with midstream companies to develop midstream assets and acquire additional dedications with the intention of “flipping” to a master limited partnership (MLP). Due to a lack of capital, producers are forming JVs to develop exploration and production (E&P) assets. The $95 million JV between the Gas Authority of India Limited and Carrizo Oil & Gas in the Eagle Ford Shale play is one example of a foreign JV that developed E&P assets. Since 2008, foreign companies have entered into 21 JVs with U.S. companies, investing more than $26 billion in shale plays. Many of these investments involved acquiring acreage through an upfront cash payment with a commitment to cover a portion of the drilling costs. Both U.S. and foreign companies benefit from these deals because the domestic companies receive financial support and the foreign companies gain experience in drilling operations

while earning profits. An example of a JV between two domestic companies is that of Noble Energy and CONSOL Energy in the Marcellus Shale, which is one of the lowest cost domestic shale plays and is ideally located near major markets. Their JV agreement contained provisions that ensured both partners were economically aligned in an environment of low natural gas prices. Midstream companies’ lack of resources to construct systems large enough to support the production from the emerging shale plays has sparked the interest of private equity investors. These investors recognize the upside in development of midstream projects and then marketing a system with cash flow for sale. Such investors are generally not in the business of long term ownership and operation of oil and gas assets, but rather in building a valuable and marketable asset and making a profit as quickly and seamlessly as possible. One recent example of a privately owned and investor-funded midstream company developing large-scale infrastructure in an area of rapid growth can be found in Howard Energy Partners’ acquisition of Meritage Midstream Services’ and Laredo Energy’s JV, Eagle Ford Escondido Gathering, LLC in the Eagle Ford shale. Meritage was formed for the purpose of acquiring assets, constructing a gathering system, and “flipping” the system. As part of that effort, Meritage entered into a JV with Laredo and formed a holding company for the gathering system built by the JV and which had, as an anchor contract, a dedication of Laredo’s large acreage position in the Eagle Ford shale. This transaction is an example of a “win-win” situation: the producer benefited by participating

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Order your copy today by calling 1-800-756-8993 or shop online at www.TexasLawyerPress.com ABOUT THE EDITOR: Robert Dubose is a partner in the Houston office of Alexander Dubose Jefferson & Townsend LLP. He handles appeals with an emphasis on commercial and contract disputes, insurance coverage, and corporate governance issues. Robert is a co-author of the Texas chapter of the American Bar Association’s Appellate Practice Compendium (2012). From 1998 to 2010 he taught courses at the University of Houston Law Center, including Appellate Advocacy and Insurance Appeals. Robert graduated cum laude from Harvard Law School. He is Board Certified by the Texas Board of Legal Specialization in Civil Appellate Law and is past-chair of the Appellate Section of the Houston Bar Association.

in a JV that capitalized on its dedication, and the midstream entity acquired, for resale, a strong position in an area with growth potential. Increasingly, midstream companies are obtaining producing acreage dedications, building infrastructure, and, once there is cash flow, “flipping” such assets to MLPs that need such cash flow to pay their dividends. Small, private-equity backed portfolio companies have the ability and incentive to develop midstream infrastructure quickly in emerging shale plays for sale to MLPs that desire assets with cash flow and growth potential. These portfolio companies recognize the need for MLPs to acquire assets with sufficient resources to pay dividends and are in the position to develop assets before there is positive cash flow. They are able to construct and develop systems

that can be “flipped” quickly to an MLP, not only because they have the technical expertise to quickly design, construct, and operate the midstream assets, but also because they have experienced business development teams willing to structure transactions creatively and develop producer relationships that create a “winwin” situation. The foregoing examples demonstrate the trend of companies entering into joint ventures that simultaneously capitalize on the strengths of each party and serve each party’s needs. Furthermore, forward-looking parties and a “win-win” negotiating style are vital to the success HN of such joint ventures. Arthur Wright is senior counsel and Rebecca Seidl is an associate at Thompson & Knight LLP. They can be reached at arthur. wright@tklaw.com and rebecca.seidl@tklaw.com, respectively.

Annual Evening Ethics Fest 3 Hours of Ethics Thursday, May 8, at the Belo Mansion Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration To register, log on to www.dallasbar.org. For more information contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org. Sponsored by the DBA Legal Ethics Committee

10 H e a d n o t e s l D a l l a s B a r A s s o ciation

A pri l 2014

Prevent Chargebacks When Accepting Credit Cards from Your Clients LawPay Can Help You by Tracey Gavin

LawPay is a custom credit card payment solution designed for attorneys. LawPay meets the ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 20–25 percent off standard credit card fees by using LawPay. Credit cards and debit cards are becoming the payment of choice among consumers. According to a March 2009 report of the American Bankers Association, some 10,000 payment card transactions are made every second around the world. Based on these trends, attorneys can no longer ignore the importance of accepting credit cards, but should proceed with caution. One of the most common concerns with credit card acceptance is the risk of chargebacks which occurs when a client disputes a charge. Chargebacks

allow a cardholder to temporarily not pay for a specific transaction until the charge is investigated.

Most Common Reasons for Chargebacks:

1. The firm does not have permission from the cardholder to charge the card. 2. The cardholder says the firm did not provide the service agreed to by the cardholder. 3. The cardholder says the dollar amount charged was different than what was agreed.

Tips to Avoid Chargebacks:

1. Let clients know what your payment expectations are on the front end by including due dates, late fees, and payment options as part of your fee agreement. 2. Your client should initial the firm’s payment and credit card policies

contained in fee agreements. 3. Confirm the name on the card. If the name is different from your actual client, obtain approval from the cardholder. 4. Obtain authorization from the cardholder for the amount being charged. 5. When accepting credit card information over the phone or through your website, ensure you have a charge authorization or previous client agreement to charge payments. 6. When receiving payments from relatives or other third parties, include the specific client name, invoice number and matter number. Obtain a signature from the third party to confirm they are accepting responsibility for payment of another party.

What Happens When You Receive a Chargeback Notice:

1. Your client has filed a formal dispute for a specific charge.

2. Notice will generally be sent to you by mail from the card-issuing bank. 3. LawPay will attempt to notify you by email or phone to expedite the process. 4. Your firm will be asked by the card-issuing bank to respond within a 7-10 day time period. 5. To successfully defend an unfounded dispute, your firm must prove the work was performed and your client gave his or her permission to charge the card for that work.

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Where Does All the Water Go? continued from page 1

hydrocarbons, disposal of waste arising out of, or incidental to, the operation of gasoline plants or natural gas processing plants, enhanced recovery of oil or natural gas, and underground storage of hydrocarbons that are liquid at standard temperature and pressure. In order to dispose of these waste streams in Class II wells, operators must register with the Railroad Commission, post a blanket bond, P-5PB(2), or sufficient surety, and have successfully permitted a Class II well. In

Texas, Statewide Rule 9 requires an operator to use Form W-14 to apply for Disposal into a Non-Productive Formation. The formation is deemed non-productive if there is no production in that interval within a two-mile radius. If there is production within a two-mile radius of the proposed wellbore, Statewide Rule 46 provides for application via Form H1 and H1a to apply for Injection, or Disposal into a Productive Formation, or if there is a mix of Productive and Non-productive zones in the proposed disposal interval. In order to avoid confusion, however, an operator should engage the Railroad Com-

Crawfish for Cancer Saturday, April 5, Noon-7:00 p.m. for all-you-can-eat crawfish and live music! 2900 Block of McKinney Avenue $20 donation at the door. All proceeds benefit Susan G. Komen for the Cure. For more information, contact rthornton@dallasbar.org. Sponsored by the DBA Entertainment Committee, Three Sheets Uptown and The Standard Pour

mission staff and seek their assistance in satisfying all requirements listed on the instruction sheet. The requirements are too extensive to describe for the purposes of this article, but two of the most critical requirements relate to the protection of groundwater. The Groundwater Advisory Unit (GAU) is tasked with assuring that the Base of Usable Quality Water (BUQW) is protected. Accordingly, commercial and new injection wells must set and cement surface casing through the BUQW, as determined by the GAU. Technical reviewers assure that the

proposed injection interval is isolated from overlying usable quality water by at least 250 feet of relatively impermeable strata, composed of clay or shale. By assuring that these criteria are met, the GAU seeks to mitigate risks related to possible contamination of usable quality water. Once approved by the UIC, an operator has three years to obtain a drilling permit W-1 and to proceed with the drilling and completion of a Class HN II disposal well. Grant Wood is a partner at the Law Office of R. Grant Wood PLLC and can be reached at grant @woodpllc.com.

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Focus

Dal l as Bar A ssoci ati on l Headnotes 11

Energy/Environmental Law

Environmental Programs That Close Real Estate Transactions by Jill A. Kotvis

Your transaction is moving along on schedule. The purchaser’s Phase II investigation identifies contaminated soil or groundwater. A time-out is called. What do you do to get to the closing goal line? Six programs of the Texas Commission on Environmental Quality (TCEQ) can help you score a closing depending on the source, type and extent of the contamination, and the level of protection, speed of closure and cost limitations desired. Dry Cleaner releases can be closed in the Dry Cleaner Remediation Program (DCRP), Voluntary Cleanup Program (VCP) or Corrective Action Program (CAP). Petroleum storage tank (PST) releases can be addressed in the leaking PST (LPST) Program, CAP or VCP. Contamination from other commercial or industrial operations can be closed in the CAP or the VCP. Why would you choose one program over another and how will it help move the transaction ball forward? If the contamination was caused by an on-site source, the choice of program will depend on the type of contaminant involved. Both the LPST and the CAP Programs are closed with a No Further Action Letter and offer no release of liability upon closure; however, they generally result in a less costly and more rapid closure. Neither program requires contribution to the agency’s costs, but the applicant pays for all of the investigation and response action costs. The VCP will generally require more investigation, and take longer to close; however, a Certificate

of Completion issued upon closure provides a release of on-site cleanup liability to future owners and lenders for contamination then existing. Prospective purchasers and lenders also qualify for the release if they are a VCP Applicant prior to closing on their purchase or loan. The VCP applicant pays the agency’s costs as well as all investigation and response action costs. Properties involving prior remediation or permits that carry cleanup obligations are not eligible for the VCP. Timing and costs of closure in the above programs can be reduced by addressing groundwater contamination through the Municipal Setting Designation (MSD) Program. The MSD is an official state designation certifying that the designated groundwater on that property is not used, and is prohibited from use, as potable water. The prohibition is in the form of a municipal ordinance or a restrictive covenant filed in the property records. Upon completion of certain MSD notice requirements, an MSD application is filed with the TCEQ, and if acceptable, the TCEQ will issue an MSD Certificate. None of the above programs provide a release of liability for thirdparty claims, or from cleanup liability for contamination migrating off-site. However, with an MSD Certificate, groundwater contamination migrating off-site is deemed to meet residential criteria and no notices to or permission from the off-site property owners are required for closure. The DCRP Program provides a release of cleanup liability to the property owner applicant for contamination on and migrating from the prop-

erty, however, closure times are long tive purchasers and operators may be and no closure is guaranteed. Appli- included in IOP applications in order cants incur no on-going investiga- to facilitate property transactions, in tive or response action costs once the which case the TCEQ will issue a letter TCEQ accepts the property into the stating that the prospective party will DCRP and takes the lead in closing be eligible for an IOP Certificate once the site, but applicants do share in the evidence of ownership of the property agency’s costs with a $5,000 deductible is provided to the TCEQ. Each of the programs described obligation and annual property owner registration fees that are retroactive have further elements and nuances in their criteria and TCEQ’s implemen(with penalties) to 2007. If the property is impacted by con- tation, which cannot be described in tamination migrating on-site from an detail due to the space limitations of off-site source, the Innocent Owner/ this article. Whether and to what Operator Program (IOP) can provide extent these programs will benefit your some level of comfort to a prospective transaction will depend on the specific purchaser. The IOP provides a process facts of your transaction and the profor current owner/operators to be cer- gram nuances. Experienced environtified as “innocent” and immune from mental counsel can help you determine liability for assessment and remediation which program will provide the gameif they can prove that they (and the winning touchdown in each of your HN property) did not cause or contribute transactions. to the contamination migrating onto their property. The immunity is con- Jill A. Kotvis has been an environmental practitioner for Lawyers’ Assistance 343-8527 taminantTexas and media specific. Prospec-Program…………...(800) 27 years. She can be reached at jillkotvis@jillkotvis.com.

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Mental Health Assoc…………………………….…(214) 828-4192 Texas Lawyers’ Assistance Program…………...(800) 343-8527 Crisis Hotline………………………………………..1-800-SUICIDE Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Texas Lawyers’ Assistance Program…………...(800) 828-1000 343-8527 Suicide Crisis Ctr SMU.…………………………...(214) Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) Alcoholics Anonymous…………………………...(214) 699-9306 887-6699 Metrocare Services………………………………...(214) 743-1200 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 363-0461 828-4192 Al Anon…………………………………………..…..(214) Mental Health Assoc…………………………….…(214) 828-4192 Crisis Peer Assistance Committee MentalHotline………………………………………..1-800-SUICIDE Health DBA Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE SuicideHotline………………………………………..1-800-SUICIDE Crisis Ctr SMU.…………………………...(214) 828-1000 Crisis Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 Metrocare Services………………………………...(214) 743-1200

Monday, April 28, 2014

Ple

ase j

DBA Peer Assistance Committee DBA Peer Assistance Committee DBA Peer Assistance Committee

Belo Mansion 2101 Ross Ave., Dallas, TX 75201 6:00 - 7:30 p.m.

oin

us!

a conversation with

ALAn M. DerSHowitz on

Constitutional Law and interpretation Alan M. Dershowitz, Harvard Law Professor, and Lackland H. Bloom, Jr., SMU Dedman Law Professor, will exchange views on constitutional law and its modern interpretation. Linda eads, Associate Provost and Associate Professor of Law, will moderate the discussion. Called the “nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of civil rights,” Dershowitz is well-known for his work on famous cases including o.J. Simpson, Mike tyson, and Julian Assange.

Alan M. Dershowitz

Felix Frankfurter Professor of Law Harvard Law School

Lackland H. Bloom, Jr.

Purchase tickets online: law.smu.edu

Professor of Law SMU Dedman School of Law

Tickets are $25. Supported by the roy r. ray endowed Lecture Series. For more information, call rebekah Bell at 214-768-4177 or email rbell@smu.edu.

12 H e a d n o t e s l D a l l a s B a r A s s o ciationâ&#x20AC;

A pri l 2014 wwww

In Memoriam THINKING ABOUT SET TING UP A P R I VAT E F O U N D AT I O N ?

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Call or email Geri Jacobs at 214-750-4255 or g jacobs@cftexas.org

David N. Reed 1949-2013 In memory of a Founding Partner and true friend. He served his clients successfully for over 30 years. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. remembers David with great respect and admiration.

5 5 0 0 C A R U T H H AV EN L A N E | DA L L A S , T E X A S | CF T E X A S .O R G /G I V I N G F U N D

April 2 0 1 4

Focus

D al l as Bar A ssoci ati on l Headnotes 13

Energy/Environmental Law

Three Steps for Beginning Your Energy Litigation Practice by Basheer Ghorayeb

Are you interested in developing an energy litigation practice, but not sure where to start? You are not alone. The renaissance in the U.S. energy industry has reinvigorated energy law, piquing litigators’ interest in this booming practice area. Last October at the Belo Mansion, the effects of this renewed interest were apparent when an experienced energy litigator was asked to speak at the DBA Energy Law Section’s monthly meeting. The Belo had underestimated the popularity of the topic, so lawyers were milling around the edge of the room, unable to find a seat, while the Belo staff rushed to find extra chairs to accommodate the large turnout. This was quite a change from the speaker’s last presentation before the DBA Energy Section nearly 10 years ago. At that time, the room was nearly empty, energy law’s future looked bleak and the speaker advised litigators in the audience to abandon energy and become commercial litigators. While many lawyers now recognize the opportunity offered by energy law, they are also intimidated by the barriers to entry: the oil and gas industry is jargon-heavy and energy law is technical and often counter-intuitive. On top of that, energy

law is evolving quickly, with developments occurring on multiple fronts and jurisdictions. If you are overwhelmed by the prospect of learning energy law, do not be discouraged. What you need are tools to help you (1) master the jargon, (2) learn the substantive legal principles and (3) keep up with the legal and business developments in energy.

Talk Like an Energy Lawyer

The following books and electronic resources will teach you the meaning of “casing collar,” “Pugh clause,” and “upstream,” and introduce you to how the energy industry works: • Oil 101, by Morgan Downey. This book gives you a good overview of the oil and gas industry. Oil & Gas Production in Nontechnical Language, by Martin Raymond and William Leffler, or try any of William Leffler’s other nontechnical introductions to the energy industry, including books on pipelines, refineries, and deep-water exploration. Manual of Oil and Gas Terms, 14th Edition, by Howard Williams and Charles Meyers. This is a good resource for learning the legal jargon associated with energy law. Schlumberger Oilfield Glossary (http://

Speak to Dallas ISD Students! Speak to Dallas ISD students during May 2014 in celebration of Law Week. DISD schools are hosting various Career Days and speakers are requested. Speakers are encouraged to address the audience about Law Day. The time commitments and class sizes vary. Sign-up by Friday, April 18 to Kimberlynn Taylor at ktaylor@dallasbar.org.

Passing the bar is one thing.

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www.glossary.oilfield.slb.com). This free on-line glossary is also available as a free app for the iPhone or iPad.

Learn the Law

Learn the basics of Texas energy law by reading the Primer on the Texas Law of Oil and Gas by Joseph Shade. Deepen your studies with a more comprehensive treatise, the eight-volume Oil and Gas Law by Howard Williams and Charles Meyers. Then make plans to learn in-person from leading energy lawyers at one or more of these annual CLE conferences: • The Annual Review of Oil Gas Law, presented by the DBA Energy Law Section at the Belo in the summer. • The Annual Energy Symposium, presented by the law review editors of Texas A&M University School of Law at their school in the Spring. • The Annual Energy Litigation Conference, presented by the Institute for Energy Law in Houston in the Fall.

Keep Up With the Law

Attending an annual conference will not be enough for you to stay current with energy law, which is developing rapidly. In between conferences, the following two resources will help you stay up-to-date.

• The Energy Litigation Committee of the ABA’s Section of Litigation. The committee’s website (http://apps.americanbar.org/litigation/committees/energy) is a good resource for staying up-to-date with energy litigation topics. When you become a member, you will also receive access to articles and a subscription to the committee’s Energy Litigation Journal. Membership is free if you are already a member of the ABA Section of Litigation. • The Energy Law Section of the Dallas Bar Association. This section is a great local resource for new energy lawyers. The DBA Energy Section meets at the Belo on the third Wednesday of every month for lunch and a presentation by an energy lawyer. The topics of upcoming meetings are available on the section’s website (http://www.dallasbar.org/content/energylaw-section). The Energy Section membership fee is $20 for DBA members. Energy litigation is an exciting field, allowing you to work on disputes that will shape the law, politics and economy of our state and nation for the foreseeable future. The resources in this article will help you enter this exciting practice area. Basheer Ghorayeb is a partner at Jones Day and can be reached at bghorayeb@jonesday.com.

DBA Annual Senior Lawyers Appreciation Dinner Thursday, May 8 ~ The Belo Mansion

Cocktails at 5:30 p.m. ~ Dinner at 6:30 p.m. • Tickets $40 ~ Tables available $400 Keynote Speaker: Hubert A. Crouch III, Crouch & Ramey, L.L.P. To RSVP or for more information regarding sponsorship opportunities, contact Kathryn Zack at kzack@dallasbar.org. Sponsored by the DBA Senior Lawyers Committee

We look for people who raise it.

specialcounsel.com/dallas 800.737.3436 214.698.0200

14 H e a d n o t e s l D a l l a s B a r A s s o ciation

Column

In The News

FROM THE DAIS

Chuck Meadows, of Meadows Collier Reed Cousins Crouch & Ungerman LLP, spoke at the 2013 ABA’s 30th Annual National Institute on Criminal Tax Fraud and Third National Institute; Trey Cousins spoke at the Louisiana Society of CPAs Tax Conference; Tom Hineman, Mary Wood and Kathryn Lyles spoke at the Tax Planning Basics for the Small Business Owner Accounting Continuing Professional Education Satellite Broadcast; Joel Crouch and Anthony Daddino spoke at the Texas Society of CPAs CPE Expo and Crouch spoke at the American Association of AttorneysCPAs, and at the Corpus Christi Chapter/TSCPA 56th Annual Tax Conference; Josh Ungerman spoke at WTAS/ Barclays and at the ABA’s 30th Annual National Institute on Criminal Tax Fraud and Third National Institute on Tax Controversy; Matt Beard spoke at the San Antonio Estate Planners Council and Corpus Christi Chapter/TSCPA 56th Annual Tax Conference and at a seminar hosted by American National Bank of Texas. David Colmenero and Steve Beck spoke to the Midland-Odessa Business and Estate Council; Mike Villa and Jason Freeman spoke at the ABA’s Section of Taxation 2014 Midyear Meeting. Henry Simpson, of Busch, Ruotolo & Simpson, LLP, served as a Judge at the Texas A&M School of Law’s Mediation Competition in Fort Worth. Ellen Bennett, of Burdette & Rice, PLLC, and Barkley T. Miller, of the Law Office of Barkley T. Miller, spoke to the Real Estate, Probate and Trust Law Section of the Denton Bar Association.

KUDOS

Dallas Habitat for Humanity has awarded its most prestigious honor, the Mary Brock Award, to Al Ellis, Of Counsel, Sommerman & Quesada LLP, for his 23 years of service as a core volunteer in all aspects of Dallas Habitat’s programs. Rob Velevis, of Sidley Austin LLP, has been presented with the 2013 Daniel R.

Ginsberg Leadership Award given by the Anti-Defamation League.

Kids Matter International in a pro bono capacity.

Steven Rasch, of Thompson & Knight LLP, has been elected President of the St. Thomas More Society of the Diocese of Dallas. Kelly M. Perez, of the firm, has been awarded The Texas Board of Legal in Estate Planning and Probate Law Specialization.

Michael Laussade, Sara McEown, Nicole Metcalf, Lauren Mutti, and Justin Shipley, of Jackson Walker L.L.P., have all been elected to Partner.

Jerry Clements, of Locke Lord LLP, has been Re-Elected Firm Chair. Kirsten Castañeda, of the firm, has been awarded The Texas Board of Legal Specialization in Civil Appellate Law. Jordan W. Cowman, of Greenberg Traurig, LLP, has become Chairman of the Texas Business Hall of Fame. Courtney Barksdale Perez, of Carter Scholer, has been Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. Patrick E. “Gene” Blanton, of Ford, Nassen & Baldwin, P.C., has been named Shareholder. Brittany K. Byrd, of Winstead PC, has been selected by American Bar Association as one of two 2013 National Outstanding Young Lawyer Award finalists. Michael A. Villa, Jr. and Mary E. Wood, of Meadows Collier Reed Cousins Crouch & Ungerman LLP, have been named Partners. Jason B. Freeman, of the firm, was named Committee Member of the Year by the Dallas CPA Society and Aaron P. Borden published the cover story article in the January/February 2014 issue of Today’s CPA. Clint Brown, of Gray Reed & McGraw, P.C., has been board certified with the Texas Bar Legal Specialization in Family Law. Jenny Givens, of the firm, has been board certified with the Texas Bar Legal Specialization in Health Law. Jeffrey O. Anderson, of McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P., has accepted the position of General Counsel for the not-for-profit

‘BAR NONE’ AUDITIONS

Tuesday, April 1 ~ 5:30 to 7 p.m. ~ Belo Mansion Auditions for Bar None XXIX: Kinky Suits will take place April 1 at Belo! All who audition will be cast. The Bar None show, to be held at the Greer Garson Theater June 11-14, benefits the Sarah T. Hughes Diversity Scholarships. Choreographers Also Needed. Contact Rhonda Hunter at rfhunter@hotmail.com. Questions? Contact Bar None’s Director, Martha Hardwick Hofmeister, at (214) 780-1400 or mhofmeister@shacklaw.net.

COMMUNITY VOLUNTEER OPPORTUNITIES FOR LAWYERS Help Build the DBA’s 24th House with Habitat for Humanity, contact gmcallister@ghjhlaw.com.





Tutor a Child Confined to the Henry Wade Juvenile Justice Center, contact ahernandez@dallasbar.org.





Mentor a Child Impacted by Incarceration, contact Mandy Klem at (214) 288-3551.







Speak to a Community or Civic Group on a Law-Related Topic, contact mjohnson@dallasbar.org.



A pri l 2014

Kirk Pittard, of Kelly, Durham & Pittard, LLP, has been selected as a director to the Texas Lyceum. Travis Patterson, of Shannon, Gracey, Ratliff & Miller, LLP, has been selected to be District Representative for the ABA’s Young Lawyers Division for District 26. Shelley Carlin, of the Rogaliner Law Firm, has been appointed to the Ethics Advisory Board for ImmPort.

MOVE

Robert Callaway joined Shackelford, Melton & McKinley, LLP as Of Counsel and Rakhee Patel has joined the firm. R. Clark Carruth joined Winstead PC as Associate. Brandon Zuniga joined Carstens & Cahoon, LLP as Associate. Desmond Jenkins joined McCathern, PLLC as Associate. George T. Lee III and Evan D. Stone joined Gardere Wynne Sewell LLP as Corporate Partners. Todd A. Murray joined the firm as Partner, Rebecca Brame and Kate Purdom joined as Associates. Orrin L. Harrison III joined Gruber Hurst Johansen Hail Shank LLP as Partner. The Honorable Karen Gren Scholer (formerly Johnson) has joined Carter Stafford Arnett Hamada & Mockler, PLLC as a name partner. The firm will now be known as Carter Scholer Arnett Hamada & Mockler, PLLC. Stromberg Stock, PLLC has moved to 8750 N. Central Expressway, Suite 625, Dallas, TX 75231. Matthew H. Lawrence PC and Kim L.

Lawrence, P.C. have joined to create Lawrence Law PLLC and are each managing members. Naval H. Patel opened Patel Law, PLLC, 1211 E. 15th St., Plano, TX 75074-6207. J. Paulo Flores has joined Ford, Nassen & Baldwin, P.C. as Shareholder. April R. Terry joined Gray Reed & McGraw, P.C. Suzanne Campbell Wellen joined BNSF Railway Company as Assistant General Attorney. Laura Bradarich joined Phelps Dunbar LLP as Associate. Arthur V. Lambert joined Constangy, Brooks & Smith, LLP as Partner. Jason Lewis and David Klaudt joined Greenberg Traurig LLP as Shareholders. Jason Hopkins and Adam Tyler joined the firm as Associates. Prichard Bevis joined Whitaker, Chalk, Swindle & Swartz, PLLC in Fort Worth as Partner. Brent Rosenthal and David Weiner have formed Rosenthal Weiner LLP located at One Lincoln Centre, 5400 LBJ Freeway, Suite 1260, Dallas, TX 75240. J. Kendall Ray joined Kane Russell Coleman and Logan, PC as Associate. A. Robert Lamb joined The Bassett Firm as Associate. Charles Hardy joined Slates Harwell, LLP as Of Counsel. Erika Bright joined Wick Phillips as Partner. Richard Y. Cheng joined the new Dallas office of Anderson Kill as Shareholder. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.

Happy hour supporting DBA’s 23rd Habitat for Humanity House Thursday, May 15, 5:00 p.m. - 7:00 p.m. at Tower Club, 1601 Elm Street, 48th Floor, Dallas, TX Please join us as we celebrate—and raise funds for—the DBA’s 23rd home!

Dedication of DBA’s 23rd Habitat for Humanity House Saturday, June 28, 10:00 a.m. at 3030 Dorris Street, Dallas, Texas 75212. Please join us as we turn over the keys to the homeowner.

Still Need to Make Your Donation?

The DBA’s Home Project is building its 21st house for Habitat for Humanity, and your contributions are needed. To donate, log on to www.dbahp.com or make checks payable to Dallas Area Habitat for Humanity and mail to Teddi Rivas, c/o DBA, 2101 Ross Ave., Dallas, TX 75201. Questions? Email gmcallister@ghjhlaw.com or kc@ashmorelawfirm.com.

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Classifieds

Dal l as Bar A ssoci ati on l Headnotes 15

April

EXPERT WITNESS

Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com

OFFICE SPACE

Offices available for rent with law firm located in Downtown Dallas Class A, arts district building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Downtown Dallas. Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. North Dallas. Law Firm has several offices with window views for lease near 635 & 75. Amenities include use of 3 conference rooms, covered parking, copier. Asking $650.00 month, Contact Aaron at (214) 336-4004. North Dallas. Law firm located at Lincoln Centre has two partner size offices and one cubicle available. Located at Tollway and LBJ; two conference rooms; break room/ kitchen; copiers; postage machine. Email: dallasipfirm@gmail.com for more information. North Central at Meadow Road. Thinking about leaving your law firm and looking for office space? Officing on your own and looking for new space? Consider officing with PlusAssociates LLP, a Multidisciplinary Professional Services Group of Firms. If your area of practice complements those that are currently provided at PlusAssociates LLP, this may be the perfect place for you. Our current firms provide the following services: Tax Planning, Tax Return Preparation and Asset Protection (Bruce E. Bernstien & Associates, P.C.), Commercial Collections, Wills and Trusts (Law Office of James R. Alexander), IRS Controversies, Wills and Trusts (Law Office of Stanton D. Goldberg), Financial Planning, Investments, Insurance, Estate Planning and Retirement Planning (Lora J. Hoff Financial Planning - CFP), Real Estate Investments (Trendview Real Estate Services - Carl Cross), Commercial Litigation (Cole & Cole, P.C. - Robert R. Cole, Jr.), Estate Planning, Probate, Wills and Trusts (John Paul Kelly, PC) and Commercial Litigation (Grams Law Firm P.C. - Darrell Grams). Several offices are available with conference rooms, kitchen, fax machine, copier, scanner, phone service, high-speed Internet, email, voicemail, free covered parking and Dart Station nearby. Meadow Park office building is at Meadow Road and North Central Expressway. Join us and take advantage of being associated with a growing group of firms with many opportunities

for referral of clients to your firm. Call (214) 706-0837. North Dallas Tollway/LBJ – Class A Building - Lincoln Centre. Approx. 5,000 sq. ft. of office space for sublease. Several varying sized offices available. Shared Amenities include: Receptionist, use of conference rooms, copiers, postage meter, highspeed Internet, phones, kitchen area and parking garage. Contact: Cindy Robbins (972) 458-5358. Law office space available in beautiful Watter’s Creek, Allen, Texas. Covered parking, easy access on and off I-75. 140 – 2,000 SQ Ft. with use of conference rooms and common areas. Call for more information, (214) 443-6001. Large furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared Conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $750.00. Call Tom Smith at (214) 520-0600. Central Expressway overlooking George W. Bush Library and SMU: Seeking lawyer(s) with compatible or complementary practices. Two window offices and support staff workstation available. Shared high-speed copier and scanner, fax, telephone system, high speed Internet, conference room, kitchen, receptionist. Near Mockingbird Station. Call Myra at (214) 691-6622, extension 107. Available immediately. North Dallas/ Addison/ Carrollton/ Farmers Branch. Business, Real Estate, Employment, Litigation Law Firm has lease space for one or two attorneys, or for one attorney and staff member. Available immediately. Seeking compatible persons with similar or augmenting practices, preferably in an “of Counsel” role. Contact Anne at (214) 7647978, or email asmith@metrocrestlaw.com. Office Sublease. Very nice updated law office in Richardson at Central/Campbell. Two window offices - $1000/mo./each; one interior office - $800/mo.; and one legal assistant area -$600/mo. available. Office environment is quiet and friendly with new furnishings and updated technology. Base rent includes receptionist, use of four conference rooms, up-to-date security system, three kitchen areas, free parking with 24-hour access to building. Additional costs include telephone, Internet, office and kitchen supplies. For more information please email Jennifer Som at Jennifer@baalegal.com or call (214) 570-0700.

POSITION AVAILABLE

Probate/Litigation Paralegal Boutique probate, trust, and guardianship administration and litigation firm has an immediate opening for a probate / litigation paralegal with a minimum of 5 years’ experience in either probate or litigation. Excellent drafting and proofing skills a must. Candidate must be proficient in WordPerfect, Excel, Word and Outlook. Key traits include attention to detail, diligence, problem-solving skills, and the ability to work autonomously. Some evening/weekend work anticipated. Salary commensurate with experience. References, salary history and salary requirements are required with submission of resume for consideration. Send requested information to bbthompson@cnbwlaw.com. Small boutique firm with predominantly commercial litigation practice looking to add lawyer(s) to Collin County office. 8 plus years civil litigation experience preferred. Compensation arrangements negotiable. Call (214) 850-5297. Convenient location. Commercial Real Estate Lending Attorney. State-Thomas boutique commercial real estate firm is seeking an associate or

partner-level attorney with three or more years’ experience in commercial real estate transactions. Ideal candidate is a graduate of a top-tier law school who has been successful in the real estate section of a large law firm. This may be a full-time, part-time or contract-based position based on the candidate’s personal desires. Compensation based on experience, time commitment and achievement. No portable business requirements; however, any portable business will be additionally compensated. No benefits other than bonuses. Please call or submit resume on a confidential basis. Contact: Niles Holmes at nholmes@nilesholmeslaw. com or (214) 855-9866 Ext. 101. Commercial Real Estate Lending Paralegal. State-Thomas boutique commercial real estate lending firm is seeking a paralegal with minimum 5 years’ experience in commercial real estate lending, which may have been either bank or CMBS representation. Attention to detail and positive attitude is extremely important. This may be a full-time, part-time or contract-based position. Compensation based on experience, time commitment and achievement. No benefits other than bonuses. Please call or submit resume on a confidential basis. Contact: Niles Holmes at nholmes@nilesholmeslaw.com or (214) 855-9866 Ext. 101. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org. Attorney Position Available. Growing Collin County (Craig Ranch) AV Preeminent™-rated litigation and business boutique is seeking attorney(s) who believe they are ready to “do their own thing” with like-minded attorneys. Firm to provide beautifully-furnished office and everything needed for successful practice, including collegial atmosphere. Applicant will keep what s/he collects after contributing reasonable fraction to overhead. For self-motivated lawyer(s) with some portable business and looking to “make the leap” and control their own destiny, please email resume and cover letter to info@saunderswalsh.com. Come practice law with (not for) a really great 14-lawyer firm in beauti-

ful offices in Campbell Centre. Walk in the door and start practicing immediately. We will take care of virtually everything else. Bring your own staff or we will supply. Also 1 or 2 window offices with secretarial space and conference room available for sublease. Contact Steve Palmer @(214) 242-6440 or spalmer@ pamlaw.com. See our website at www. pamlaw.com.

POSITION WANTED

Real Estate and Finance Lawyer. More than 15 years major firm experience representing purchasers/sellers/lenders in commercial transactions, including multistate portfolios. Prefer real estate section of lawfirm. Excellence and responsiveness are priorities. Full or part time. D/FW area. (Principals only please). Respond to: Dallas Bar Association, Box 14–02, 2101 Ross Avenue, Dallas, Texas 75201. (Principals only please.)

SERVICES

Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and non-operating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member. Research/Drafting for your pleadings, motions, briefs, appeals, etc by retired, experienced trial lawyer/law professor. Federal/State courts. (405) 238-0903. lnunn@usi.edu. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800760-9890 or 214-720-9890 for a friendly and quick analysis and response. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.

Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.

DVAP’s Finest Reed Allmand

Reed Allmand is a consumer bankruptcy attorney and the owner of Allmand Law firm. Allmand Law focuses exclusively on consumer bankruptcy cases and their mission is to help consumers get a fresh start on their debt and life, with the understanding that bad things can happen to good people. Reed accepts several bankruptcy referrals from DVAP each month and assists consumers who cannot afford to access the legal system because of financial limitations. Reed had this to say: “It is gratifying to help these consumers get relief from financial problems and the stress those debts bring. It is an honor to be in a position where we can help give back to the community.” Thank you for all you do, Reed!

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.

16 H e a d n o t e s l D a l l a s B a r A s s o ciation

A pri l 2014

Reputation. Resources. Results.

“The breadth, depth and pace of family law has changed immensely since I began practicing. To be successful in family law today, you have to be a savvy business person, with expertise in a multitude of areas such as business, accounting, and real estate. As a firm our size, we’re able to leverage each others expertise, resources and experience for every client’s benefit.” KoonsFuller, P.C. President Rick Robertson

Uptown Dallas 1717 McKinney Avenue Suite 1500 Dallas, Texas 75202 (214) 871-2727

Houston 109 North Post Oak Lane Suite 425 Houston, Texas 77024 (713) 789-5112

West Plano 5700 West Plano Parkway Suite 2200 Plano, Texas 75093 (972) 769-2727

www.koonsfuller.com

Denton 320 West Eagle Drive Suite 200 Denton, Texas 76201 (940) 442-6677

Southlake 181 Grand Avenue Suite 225 Southlake, Texas 76092 (817) 481-2710