Changes from the 87th Legislature Does ERCOT Have Sovereign Immunity? COVID-19 Vaccine Mandates: An Employer’s Rights and Duties Under Federal Law Conflict, Custody & Covid: Vaccination Consent The Shifting Landscape in Immigration Law in 2021 Crisis in the Suez Canal
Jennifer A. Hasley 2021-2022 President Houston Bar Association
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THE HOUSTON
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Volume 59 – Number 1
July/August 2021
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contents July/August 2021
Volume 59 Number 1
FEATURES
10
14
Legislative Update for 10 Texas Lawyers: Changes from the 87th Legislature By Bobby Debelak
ERCOT Have Sovereign 14 Does Immunity? By Mia Lorick and Carrie Collier-Brown
Vaccine Mandates: 18 COVID-19 An Employer’s Rights and Duties Under Federal Law By Sophia George
Custody & Covid: 22 Conflict, Vaccination Consent
18
22
By Emily C.A. Hull
Shifting Landscape in 24 The Immigration Law in 2021 By Anuj A. Shah
in the Suez Canal: 28 Crisis Egypt’s Suez Canal Closure By Janna Mouret and Rebecca Piller
Hasley Takes Office 32 Jennifer as HBA President
24
28
33 50-Year Lawyers 35 President’s Awards Together: 36 Stronger An Interview with HBA President Jennifer Hasley
SPOTLIGHT 38 VETERAN • The Honorable Erica R. Hughes
• Colonel Terri R. Zimmermann
The Houston Lawyer
By Anietie Akpan
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2021. All rights reserved.
2 July/August 2021
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contents July/August 2021
Volume 59 Number 1
departments
42
43
Message 6 President’s Stronger Together By Jennifer A. Hasley
From the Editor
Do You Measure 8 How a Year in a Life? By Anietie Akpan
Spotlight 42 Section Juvenile Law Section Update:
Advocating for Juveniles through COVID-19 By Liz Furlow
in professionalism 43 ATheProfile Hon. Edith H. Jones
44
48
Judge, U.S. Court of Appeals for the Fifth Circuit
in professionalism: 44 ALawProfile in the Family • The Frels Family • The Hanen/Dillard Family
THE RECORD 48 OFF A Lesson in What Really Matters:
Brittany Scheier By Andrew Pearce
Spotlight 49 Committee Habitat for Humanity: Building
Homes in Challenging Times
49
51
By Deanna Markowitz Willson and Tara McElhiney
trends 50 legal Litigants Can Now Claim
Attorneys’ Fees Under Chapter 38 from Limited Liability Companies, Thanks to Texas Legislature Amending Restrictive Statutory Language By Kirsten Vesel
reviews 51 Media Garner’s Guidelines for Drafting
& Editing Contracts
Reviewed by Avi Moshenberg
The Houston Lawyer
52 Litigation MarketPlace
4 July/August 2021
thehoustonlawyer.com
president’s message By Jennifer A. Hasley Hasley Scarano, L.L.P.
Stronger Together
Celebrating Members, Professionalism and Those Who Served
The Houston Lawyer
I
Every year, the incoming HBA president sets certain initiaam honored to follow in the footsteps of the HBA presidents tives that express the individual president’s views and goals who have led this organization, developed relationships for the HBA. HBA members do so many meaningful things and programs to enhance the legal profession, and served and we have so many successful programs and initiatives, the community through various outreach efforts. On bethat narrowing down to a few focus items can be difficult. half of all the HBA members, I want to thank Bill Kroger This year, my three focus initiatives are straightforward: for his service as president. Bill meticulously outlined goals for 1. Celebrating our members; his presidency, but could not have anticipated that all his care2. Promoting professionalism and pro bono; and ful planning would be repeatedly thwarted by a pandemic. Bill 3. Expanding our military and veterans programs. was undeterred and used every opportunity, mostly through a virtual world, to carry My first initiative— out our mission of service celebrating our memby prioritizing connecbers—jumped out from tions and opportunities the start. Of course, we for members. Under Bill’s are proud of how our steadfast leadership, the members stepped up and HBA’s operations, memkept things going during ber services, and fundthe last unusually diffiraising efforts continued cult year. But, more than uninterrupted with asthat, I want to celebrate tounding and unprecwhat our members acedented positive results. complish together. As the HBA leadership Part of celebrating changed with the beginmembers is acknowlning of the new bar year, edging that the HBA is a we stood ready for the voluntary organization. future with renewed opBill and Elizabeth Kroger with Jennifer and Greg Hasley at the HBA Annual Dinner. We depend on members timism and a greater apto accomplish all of our objectives. I like many of you have preciation for our loyal members. Despite a year of uncertainty served on committees, taken pro bono cases, given speeches, and lingering questions about the long-term implications of and volunteered at our community outreach events. We apCOVID-19, members submitted their dues and volunteered for preciate your past service and thank you, in advance, for the committees, sections, and community activities. The message continued service you will provide in the coming year. We from our membership was clear: we are united and stronger greatly appreciate all our board members, committee chairs, together. section leaders, and volunteers for your time and all that you We adopted the Stronger Together slogan to capture the apdo. This will be a continuing theme throughout the year with preciation for our loyal HBA members and the excitement of special member profiles and features in The Houston Lawyer coming back together with steadfast friends and colleagues magazine and our other publications, at events, and with who are committed to each other, professionalism, and all awards. things HBA. The sentiment is heartfelt and personal because My second initiative will focus on promoting professionI too am an HBA member and believe in the value of memberalism and pro bono. Consistent with our mission, we will ship for achieving personal growth, professional development, continue to emphasize professionalism in our education, and philanthropic aims. There is little doubt that we are the programming, awards, and through mentorship. To foster best metro bar association in the country because of the quala commitment to pro bono legal work, we will also encourity and enthusiasm of our members. 6 July/August 2021
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age members to volunteer their time and expertise to provide legal information, assistance, and representation to eligible low-income clients through our ancillary organization, Houston Volunteer Lawyers. Finally, my third initiative will focus on expanding our commitment to military and veterans. While HBA activities are designed to be a service to our members and our communities, there are those among us who have demonstrated a special kind of service. Their service to our country allows the rest of us to safely practice our craft. This year we want to honor our military and veterans and expand the work HBA has already done to support this group. In 2008, Travis Sales started the Veteran’s Legal Initiative (VLI). The program provides free legal advice and legal representation to U.S. veterans. Any veteran, or spouse of a deceased veteran, can get advice and counsel at one of our in-person or virtual legal clinics. Lowincome veterans who need further legal representation in civil matters and meet eligibility guidelines can be assigned a pro bono attorney through Houston Volunteer Lawyers. Under the leadership of Jonny Havens, Rick Houghton, and Randy Clark, I have established a Military and Veterans Committee that will promote collegiality among attorneys who are serving or who have served in all branches of military and encourage public awareness of veterans issues. The Committee will be responsible for planning networking and CLE opportunities for members of the HBA who are current military service members or veterans. The Committee will assist Houston Volunteer Lawyers by encouraging committee members to support and participate in HVL’s pro bono services and community efforts, particularly those aimed at supporting veterans. It is our hope to advance these objectives over the long run. Over the years, I have had the opportunity to learn from each president who served before me, and I hope to follow their good examples as we look forward to the year ahead. We are going to have a great year! Remember, we have been and remain Stronger Together. thehoustonlawyer.com
July/August 2021
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from the editor By Anietie Akpan METRO
Associate Editors
Brooksie Bonvillain Boutet Shipley Snell Montgomery
Kimberly Chojnacki Baker Donelson
Elizabeth Furlow Baker Botts
Carly Milner Foglar Brar O’Neil Gray
The Houston Lawyer
Andrew Pearce BoyarMiller
Koby Wilbanks Murrah & Killough
8 July/August 2021
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How Do You Measure a Year in a Life?
ne of my favorite songs from one of my favorite musicals asks the question: How do you measure a year in a life? Is it measured in daylights? In sunsets? In midnights? In cups of coffee? Over the past eighteen months, though all our lives may have been quantified by these metrics, they were also measured in a number of other ways: They were measured in marches demanding social justice. They were measured in the hours spent waiting in lines to vote. They were measured in numbers that we watched with dread tick higher and higher each day. A year ago, The Houston Lawyer published its General Issue which focused on the transformative ways the pandemic had impacted not only our profession, but our communities, our schools, and our homes. It would only be the first of many issues which would encapsulate the ways our lives would be measured over the coming year. This year, as incoming Editor-in-Chief, I aspire to uphold the standard of excellence set by those who came before me, especially the immediate past Editor-in-Chief, Anna Archer, who set the standard for a compassionate, encouraging, and engaging leader. Thank you, Anna, for being such a supportive friend, ally and mentor to me this past year! I’m incredibly honored to have been appointed to this position, but it means even more to me to be appointed by Jennifer A. Hasley, only the fifth woman to hold the position of President of the Houston Bar Association in its 150-year history. President Hasley has already demonstrated tireless support to The Houston Lawyer, and I’m excited to work with a great group of new and returning editors to support her presidential pillars this year. In this issue, we kick off the bar year with an outstanding line-up: Jennifer Hasley shares her agenda and goals for the new bar year. Bobby Debelak provides an important summary of Texas legislative updates which will impact and shape the legal profession. Mia Lorick and Carrie Collier-Brown contribute a scholarly article dissecting the Texas Supreme Court’s recent decision regarding ERCOT’s sovereign immunity. Sophia George and Emily thehoustonlawyer.com
C.A. Hull both explore two important ever-evolving legal issues regarding COVID-19: employer-mandated vaccinations in Texas and determining parental consent for vaccinating children subject to shared conservatorship agreements, respectively. Anuj A. Shah writes on the big changes to the immigration legal landscape that have occurred this year. Finally, Janna Mouret and Rebecca Piller discuss the important economic, global, and legal implications of a temporary closure of the Houston Ship Channel, contextualized against the Suez Canal closure earlier this spring. Thank you to Ben Sanchez and Anuj A. Shah for their hard work and creativity while serving as guest editors for this issue! In addition to these informative and well-written articles, I’m very proud to share that in support of President Hasley’s objective to celebrate and serve local veterans, The Houston Lawyer will publish a running column in each issue highlighting local attorneys and judges who have served our nation. Our first two spotlight columns, which will be featured in this issue, are on the Honorable Erica R. Hughes (Harris County Criminal Court at Law No. 3) and Colonel Terri R. Zimmermann (Zimmermann Lavine & Zimmermann, P.C.). I know you will be inspired by both of these courageous women, their experiences in the military, and their selfless work in support of veterans in the community. Finally, I would like to offer my congratulations to the publication’s incoming Associate Editors who serve as leaders on the editorial board—Koby Wilbanks, Articles Editor; Kimberly Chojnacki, Legal Trends Editor; Liz Furlow, Committee & Section Spotlight Editor; Andrew Pearce, Off-the-Record Editor, and Carly Milner, Media Reviews Editor. Last, but not least, Brooksie Boutet will be returning as Podcast Editor for Behind the Lines: The Houston Lawyer Podcast. As we begin this new bar year, I look ahead in the months to come, hoping that this year will be measured in joy, in laughter and celebration as we shift into a postpandemic world. Stay safe, be kind to one another, and as always, thank you for reading The Houston Lawyer.
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Jennifer A. Hasley
Greg Moore
Chris Popov
Diana Gomez
Daniella Landers
Bill Kroger
Second Vice President
David Harrell
DIRECTORS (2020-2022)
Kaylan Dunn Robert Painter
Collin Cox Pamela Medina
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Anietie Akpan Associate Editors
Brooksie Bonvillain Boutet Kimberly A. Chojnacki Elizabeth Furlow Carly Milner Andrew Pearce Koby Wilbanks
Anna M. Archer Elizabeth M. Bruman Elizabeth P. Furlow Trey Holm Kristen Lee David T. Lopez Tim McInturf Avishay Moshenberg George Oggero Timothy B. Riley Juliana Serrano Jennifer Smith Tara Taheri Emma P. Tennant Michael J. Wynne
Editorial Board
Natasha Breaux Heath DeJean Dasha K. Hodge Jennifer R. Jenkins Emilio Longoria Kylie Loya Nikki Morris Katya Nikitina Ruby Powers Benjamin K. Sanchez Anuj A. Shah Kyle Steingreaber Mahsa Tajipour Hon. Joe Villarreal Nicolette J. Zulli
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July/August 2021
9
By Bobby Debelak
Texas Legislative Update for Lawyers:
Changes from the 87th Legislature
T
hough much of the attention on the 87th Legislature focused on broader political issues like voting procedure, other changes from the recent term will impact lawyers— and especially litigators—in Texas. In this session, the Texas Legislature took on the twofold task of addressing the challenges resulting from emergencies like Winter Storm Uri and the COVID-19 pandemic as well as curing several longstanding procedural problems in existing Texas law, especially in construction and health law.
At long last, Texas House Bill No. 1578 (“H.B. 1578”) addresses the recovery of attorneys’ fees in contract cases. Previously, Texas courts’ rigid interpretation of Texas Civil Practice and Remedies Code §38.001 permitted recovering attorney’s fees only against an incorporated entity or an individual person, but not against LLCs or LLPs—even though these limited liability entities could recover when they were the aggrieved party.1 As a result, many practitioners felt that §38.001 unfairly limited the recovery available to a claimant suing an LLC or LLP versus claimants suing a corporation or individual. Despite the apparent imbalance, prior attempts to introduce curative legislation failed, supporting lawyers’ arguments that the distinction had the blessing of the Texas legislature. The rule has now changed. H.B. 1578 amends §38.001 to permit attorneys’ fees recovered against any “organization,” as defined by §1.002 of the Texas Business Organizations Code. That definition is more expansive than the prior “corporation,” and will now broadly include any “corporation, limited or general partnership, limited liability company, business trust, real estate investment trust, joint venture, joint stock company, cooperative association, bank, insurance company, credit union, savings and loan association, or other organizations.”2 H.B. 1578 still prohibits recovery of attorneys’ fees from “quasi-governmental entities authorized to perform a function by state law, a religious organization, a charitable organization, or a charitable trust.”3 These new rules will apply only to suits filed after September 1, 2021.4 Plaintiffs who anticipate contract litigation against a limited liability entity (and who are not facing limitations issues) will likely wait until after September to file suit to take advantage of the new rule. Next, in response to Win-
ter Storm Uri, Texas House Bill 2604 amends the Utilities Code to exclude school facilities from rolling blackouts.5 Hopefully the new provision will never be needed. Also related to recent emergency events, the legislature addressed Pandemic-related Liability Protections through omnibus Texas Senate Bill 6 (“S.B. 6”), an act “relating to liability for certain claims arising during a pandemic or disaster related to a pandemic.” The bill amends several existing statutes, chief among them the Medical Liability Act and Civil Practice and Remedies Code. The amendment here is designed to protect healthcare providers, manufacturers, businesses, nonprofits, and schools from claims arising from the COVID-19 pandemic. Under the new law, a person or business is not responsible for “injury or death caused by exposing an individual to a pandemic disease during a pandemic emergency”6 unless the plaintiff proves both that (1) the defendant “failed to warn the individual of or remediate a condition that the person knew was likely to result in the exposure of an individual to the disease,”7 and (2) that the defendant “knowingly failed to comply with government-promulgated standards” that are “meant to limit the exposure to that disease.”8 Second, the plaintiff must show through “reliable scientific evidence” that it was the defendant’s failure that caused the injury to the plaintiff.”9 In this, S.B. 6 seeks to encourage a return to pre-COVID economic normalcy by removing the fear of unfounded suits against reopening businesses. The bill does not, however, provide blanket immunity. Notably, the language carves out actors who behaved wantonly or who did not follow “government-promulgated” safety guidelines. Unsurprisingly for a state law, “government-promulgated” guidelines are defined around state agencies (not federal ones), and the new law includes a provision at §148.003(j) to treat any conflict between state standards and
any “different government-promulgated standard.”10 This language anticipates the potential for conflict between, say, recommendations from the CDC and Texas state agencies. In that event, the defendant is not considered to be out of compliance so long as they made a “good faith effort to substantially comply with at least one conflicting order[.]”11 S.B. 6 also expands existing liability protections to cover healthcare providers and others who provide medical care, like first responders. Now, these persons will not be liable for “an injury, including economic and non-economic damages, or death arising from care, treatment, or failure to provide care or treatment” as long as they can show that the pandemic or pandemic-related disaster was a “producing cause” of the care, treatment, or failure to provide care or treatment, or that the injured party was “diagnosed or reasonably suspected to be infected” with the pandemic disease.12 Liability may still be found, however, for “reckless conduct” or “intentional, willful, or wanton misconduct.” The bill defines nine areas that fall under care and treatment, such as the use or nonuse of personal protective equipment and using medical devices or tools outside of their intended use. The law also protects businesses and individuals engaged in manufacturing, selling, or donating medical supplies and equipment during the pandemic by insulating them from liability for injury caused by allegedly defective products unless the business or individual had actual knowledge of the defect and acted with malice. Though new laws typically have a September 1 effective date, S.B. 6 retroactively applies to all incidents starting on the day that Governor Greg Abbott declared the pandemic as a state emergency (March 13, 2020) and extends until the emergency declaration is lifted. Looking ahead, the Act will also apply to any future pandemics or states of emergency.13 Other legislation will impact non-COVID healthcare claims more generally. thehoustonlawyer.com
July/August 2021
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Texas Senate Bill No. 232 amends the Civil Practice and Remedies Code provisions for healthcare liability claims. This new law gives Courts the opportunity to define, upon a party’s motion, whether the suit qualifies as a “health care liability claim.” The judicial determination is important in these suits because if a claim qualifies, it triggers the attendant rules for expert designations. Under the new statutory scheme, a “claimant” may move a Court “not later than 30 days after the date each defendant’s original answer is filed,” to make a preliminary determination as to whether a claim is a health care liability claim.14 If the Court determines that the claim is a healthcare claim, then the claimant must serve an expert report by the later of (i) 120 days after the date each defendant’s original answer is filed; (ii) 60 days after the date the court issues the preliminary determination; or (iii) a date agreed to in writing by the affected parties. If the Court fails to rule on the determination request within 90 days, then the case will be deemed a health care liability claim, though the parties may file an interlocutory appeal.15 Next, other legislation will impact construction litigation. Most significantly, a 100-year construction law doctrine is changing with the passage of Texas Senate Bill 219 (“S.B. 219”). Effective September 1, 2021, S.B. 219 curtails contractors’ responsibility for certain design defects that are a result of ownerprovided plans and creates a statutory standard of care for architects and engineers that limits owners’ ability to contract for a higher standard.16 Texas construction law previously adhered to the Texas Supreme Court’s Lonergan doctrine, which placed the risk of construction faults in owner-procured designs on the contractor who received the plans unless the parties’ agreement explicitly shifted that risk to the owner. In this, Texas was an outlier: every other state follows the Spearin doctrine (derived from the eponymous Supreme Court case) which instead assigns re12 July/August 2021
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sponsibility for owner-furnished plans to the owner rather than the contractor.17 The less-forgiving Texas rule required contractors to include extra protections in any housing contract that included owner-furnished designs, either by contracting to shift the risk, or by assuming the owner-furnished plans as if their own. Past legislation that tried to relieve this burden on contractors failed. S.B. 219 changes this structure. The language of the new law amends Title 4 of the Business & Commercial Code to reflect that a contractor is no longer liable “for the consequences of a design defect in . . . plans, specifications, or other design documents provided to the contractor by a person other than the contractor’s agents, contractors, fabricators, or suppliers, or its consultants, of any tier.”18 The protection is not absolute, however, and S.B. 219 does leave some responsibility on contractors. For example, if a contractor discovers a “defect, inadequacy, or insufficiency” in the design plans, they must “disclose in writing” the existence of this defect.19 S.B. 6 also establishes that a contractor can be held liable for failing to disclose a defect they discover through “ordinary diligence.” The shift does not require actual knowledge—constructive knowledge that can be gained through “ordinary diligence” will suffice. And since contractors will hold the plans provided to them, homeowners will argue that reviewing those plans would be “ordinary diligence,”20 and so the scope of contractor responsibility for defects that could have been discovered by that review will likely remain the subject of litigation. Thus, while S.B. 219 will not eliminate disputes, the change remains welcomed news for contractors and their counsel, at least in shifting the burden to homeowners for their provided plans. S.B. 219 separately amends §130.0021 of the Civil Practice and Remedies Code to create a non-waivable standard of care for architects and engineers, now requiring that their services “be performed
with the professional skill and care ordinarily provided by competent architects or engineers.”21 If a contract establishes a different standard of care for engineers and architects, then that provision is unenforceable. This change prevents owners from contracting for a higher standard of care from architects and engineers. This Act is only effective for “a contract”—not a lawsuit—“entered into on or after the effective date of the Act,” which is September 1, 2021.22 And finally, two other changes impact the Texas Judiciary. First, for any litigator considering running for office, Texas Senate Joint Resolution No. 47 changes eligibility requirements, now including an eight-year experience requirement for candidates of a Texas District Court.23 Second, Texas House Bill No. 3774 created a new judicial district court in Harris County (the 482nd) to accommodate the growing Houston population and alleviate overburdened dockets.24 Bobby Debelak is a litigation partner with the Houston office of McDowell Hetherington LLP. He can be reached at bobby. debelak@mhllp.com or 713.337.8853. Gus Talkington is a rising 2L at the University of Texas School of Law who assisted with research for this article.
Endnotes
1. See, e.g., Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). 2. TEX. BUS. ORGS. CODE ANN., § 1.002 (62). 3. TEX CIV. PRAC. & REM. CODE ANN. § 38.001(b). 4. H.B. 1578, 87th Leg., Reg. Sess. (Tex. 2021) 5. TEX. UTIL. CODE ANN., § 38.0711. 6. TEX CIV. PRAC. & REM. CODE ANN. §148.003(a). 7. Id. at §148.003(a) (1)(A). 8. Id. 9. Id. at §148.003(a)(2). 10. Id. at §148.003(j). 11. Id. 12. Id. at §74.155(b). 13. S.B. 6, 87th Leg., Reg. Sess. (Tex. 2021). 14. TEX CIV. PRAC. & REM. CODE ANN. § 74.353(a). 15. S.B. 232, 87th Leg., Reg. Sess. (Tex. 2021). 16. S.B. 219, 87th Leg., Reg. Sess. (Tex. 2021). 17. See generally U.S. v. Spearin, 248 U.S. 132 (1918). 18. TEX. BUS. & COM. CODE ANN. § 59.051(a). 19. Id. at § 59.051(b). 20. Id. 21. TEX CIV. PRAC. & REM. CODE ANN. § 130.0021(a). 22. S.J. Res. 47, 87th Leg., Reg. Sess. (Tex. 2021). 23. S.B. 219, 87th Leg., Reg. Sess. (Tex. 2021); Tex. Const. art V, § 2(b). 24. H.B. 3774, 87th Leg., Reg. Sess. (Tex. 2021); TEX. GOV’T CODE ANN., § 24.60027(b).
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Does ERCOT Have Sovereign Immunity? “The parties want to know. The public wants to know. The Court refuses to answer.” –Chief Justice Nathan Hecht
I
n February of 2021, Winter Storm Uri hit Texas and delivered never-before seen freezing temperatures and power outages. Many people found themselves without power for several days. For that, most people—whether justified or not—blamed ERCOT (the Electric Reliability Council of Texas). It seemed almost inevitable that lawsuits would follow. What most Texans did not know is that while most of us were learning who and what ERCOT was for the first time, there was already a case pending in the Texas Supreme Court to determine whether ERCOT is a governmental entity with the protection of sovereign immunity. The importance of this question is vast because if ERCOT is considered a governmental entity with sovereign immunity protection, it could use that as a defense in lawsuits brought against it. As most lawyers know, a sovereign immunity defense allows a governmental entity to assert its immunity early in the lawsuit for a speedy dismissal. Without a sovereign immunity defense, litigation against ERCOT could last years. In the days and weeks following Winter Storm Uri, a flurry of lawsuits were filed—many of them naming ERCOT as a
defendant. As the lawsuits piled up, lawyers watched for a ruling from the high court as to whether ERCOT could assert sovereign immunity to end several active lawsuits against ERCOT. On March 19, 2021, when the Texas Supreme Court issued an opinion in Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund LLC1, we were left with more questions than answers. The case facts are as follows: ERCOT is the operator of the majority of the Texas power grid: managing the buying and selling of wholesale power as well as the reliability of the grid, at any given time, so that Texans have power. Rather than being governed by the Federal Energy Regulatory Commission (“FERC”), ERCOT reports to the Public Utility Commission (“PUC”).2 Twice a year, ERCOT issues a “Report on Capacity, Demand, and Reserves” to provide a projection of power generation capacity and electricity demand. Market participants in ERCOT frequently use ERCOT’s reports when making a determination on whether to invest in new generation plants or transmission facilities. In 2011 and 2012, ERCOT’s reports projected substantial capacity shortfalls. After reviewing ERCOT’s reports, Panda Power, a power generator, claims that it relied on the reports when it decided to invest $2.2 billion in building two new power plants. After Panda Power began construction, ERCOT revised its report. The revised report no longer projected a shortfall but rather predicted an excess of generation capacity. Panda Power then filed a lawsuit against ERCOT and three of its officers, claiming that the original report was misleading and caused Panda Power to invest in a “losing endeavor.” The lawsuit alleged claims of negligent misrepresentation, fraud, and breach of fiduciary duty. ERCOT responded by filing a plea to the jurisdiction that argued that the PUC has exclusive jurisdiction over Panda Power’s claims because ERCOT is a governmental entity under the Tort Claims Act. The PUC filed an amicus brief in favor of ER-
COT’s argument, but the trial court denied ERCOT’s motion. ERCOT then filed a motion for reconsideration as well as an amended plea to the jurisdiction arguing sovereign immunity, but the trial court denied both pleadings. ERCOT filed an interlocutory appeal and, alternatively, a petition for writ of mandamus arguing that sovereign immunity bars Panda’s claims even if ERCOT is not a governmental unit. The Fifth Court of Appeals consolidated ERCOT’s interlocutory appeal and petition for writ of mandamus, granting the latter. In its holding, the Court found that although ERCOT is not a governmental unit, sovereign immunity applies and is a complete bar to Panda Power’s claims.3 This appeal is referred to as Panda I. The Court of Appeals directed the trial court to dismiss the lawsuit against ERCOT within thirty days of the judgment. Panda Power filed a petition for writ of mandamus in the Texas Supreme Court challenging the ruling. ERCOT also filed a conditional petition for review challenging the Fifth
Court of Appeals’ holding that ERCOT is not a governmental unit under the Tort Claims Act. The Texas Supreme Court requested briefing in both cases and consolidated the cases for oral argument. In reviewing the record, the Texas Supreme Court considered the following procedural background: • Eight days after the Court of Appeals directed the trial court to dismiss Panda Power’s lawsuit, the trial court entered final judgment dismissing Panda Power’s Claims. In those eight days, Panda Power took no action. • Three days after the final judgment was entered, Panda Power filed an emergency motion asking the Court of Appeals to stay its mandamus order and to set aside the entry of final judgment. • The Court of Appeals denied Panda Power’s motion. • Twenty-nine days after the trial court’s entry of final judgment, Panda Power filed a notice of appeal
from the final judgment, sparking a separate appeal. • The separate appeal is referred to as Panda II. • Panda Power filed a motion seeking en banc rehearing in Panda I, and filed a motion to abate Panda II. The Court of appeals denied the motion. • Panda Power filed its petition for writ of mandamus to the Texas Supreme Court in Panda I. • ERCOT also filed a conditional petition for review, indicating that the trial court entered a final judgment and that Panda Power appealed that judgment in Panda II. Notably, ERCOT argued that Panda I might be moot because of the trial court’s final judgment. • The Texas Supreme Court requested supplemental briefing on the issue of whether the trial court’s entry of final judgment rendered Panda I and the existing proceedings moot.4 The Texas Supreme Court’s majority
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opinion, authored by Justice Boyd, details the mootness doctrine at length. Although the court acknowledges that there is a live controversy, it explains how entry of a final judgment causes all interlocutory orders to merge into the final judgment, thereby eliminating the interlocutory order and rendering the proceeding moot.5 Specifically, the court states: Because the trial court’s interlocutory order (which gave rise to these consolidated causes) merged into the final judgment, the final judgment is on appeal in a separate proceeding in the court of appeals, and the trial court no longer has plenary jurisdiction over Panda’s claims against ERCOT, this Court cannot instruct the trial court to render a new judgment. Nor can we instruct the court of appeals how to resolve Panda II without issuing an advisory opinion, because that appeal is not yet before us. We are therefore unable to provide the relief the parties’ petitions seek, and any order by this Court would be without practical effect. Therefore, we are compelled to conclude that this proceeding is moot.6 Ultimately, the Texas Supreme Court does not reach the question of whether ERCOT has sovereign immunity. Although the majority opinion relies on the mootness doctrine, some of the Justices disagreed. Chief Justice Hecht, joined by Justice Guzman, Justice Lehrmann, and Justice Devine, issued a dissenting opinion that frankly raises several points that were squarely presented by the majority opinion. Chief Justice Hecht’s dissent reiterates that the stakes between the parties are high because Panda Power alleges more than $1 billion in damages.7 He further acknowledges the impact of the majority’s decision following Winter Storm Uri by stating: [T]he public also wants to know whether ERCOT can be sued. Will ERCOT be immune to claims against 16 July/August 2021
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it for failing to prevent the power outages across Texas that not only crippled millions of users but resulted in water outages that were at least as bad, if not worse? The answer to the immunity issue in this case has become perhaps more important to the public than even to the parties. The parties want to know. The public wants to know. The Court refuses to answer. In criticizing the majority opinion, Chief Justice Hecht highlights that now more than ever, there is a live controversy that is of public importance.8 But what is most compelling is Chief Justice Hecht’s argument against the majority’s holding on the mootness doctrine. He points out that if the Texas Supreme Court were to find that ERCOT was not immune, it could simply direct the Fifth Court of Appeals to vacate its prior ruling and judgment that ordered the dismissal of the lawsuit. And, that to hold otherwise would mean that intermediate courts could avoid review by a higher court by simply issuing judgments that direct the trial court to act quickly. In this case, the Fifth Court of Appeals directed the trial court to dismiss the lawsuit within thirty days. Presumably, had the judgment not contained such a speedy directive, the trial court would not have entered a final judgment—the judgment that the majority opinion believes robbed it of jurisdiction. If the Fifth Court of Appeals’ judgment is vacated, then it follows that the final judgment issued by the trial court would be vacated as well. Chief Justice Hecht struggles to find the logic behind the majority opinion’s holding. But, as the majority opinion points out, review of whether ERCOT has sovereign immunity is an issue pending in Panda II. Therefore, while the Court lacked jurisdiction in Panda I, the issue will be decided in Panda II. Chief Justice Hecht also points to Texas Rule of Appellate Procedure 27.3, which states: After an order or judgment in a civil
case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another appealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment...Any party may nonetheless appeal from the subsequent order or judgment.9 In citing this Rule, Chief Justice Hecht suggests that the same procedure should apply to mandamus review—which is perhaps an argument that the Rule should be amended. Chief Justice Hecht also reiterates that if the court determined that the Fifth Court of Appeals erred it could direct the trial court to vacate its order.10 Another point raised in Chief Justice Hecht’s dissent is one that is often overlooked—the cost of litigation. While the cost of litigation is not a consideration when determining jurisdiction, the dissent cautions that the decision reached by the majority is dangerous because a party with lesser means “might not be able to afford two appeals to get one decision.”11 The dissent ends with a punchy observation: Here, the Court’s decision makes no difference because Panda has been careful to appeal the final judgment, and the same parties can afford to argue the same issues to the same court of appeals, which can issue the same ruling, from which Panda can seek review, with it and ERCOT reasserting the same arguments they have made to this Court already in briefs and oral argument, for the Court to finally decide, maybe only a year or so from now. The Court wastes the parties’, the court of appeals’, and this Court’s resources, and everyone’s time—to no one’s benefit. Joining in the crescendo of criticism
of the majority’s opinion is Justice Guzman, who authored her own dissenting opinion stating, “the Court’s mootness analysis fundamentally misunderstands the nature of the relief requested and our mandamus jurisdiction.”12 She goes on to write that there is no limitation on the Court’s mandamus power that would prevent it from ordering the Fifth Court of Appeals to correct its clear abuse of discretion, should the Court find one.13 Justice Guzman ends her dissenting opinion by stating: One of our principal missions is to decide cases of statewide importance, and the public always benefits when we do our job. The public’s interest in an expeditious resolution of this dispute has long been championed by both sides of the case. It is not a novel concern for the Court or even for this case. As for the concurrence’s suggestion that the Court should “stick to deciding cases,” I wholeheartedly agree. Let’s start by deciding this one.14
The Texas Supreme Court’s highly anticipated answer as to whether ERCOT has sovereign immunity will have to wait until Panda II is decided. While most lawyers understand the Court’s analysis, it is likely the public does not. When it was given an opportunity to decide an issue that would have an immediate and direct impact, it held that it lacked jurisdiction to do so. And, the result for ERCOT is that it is now faced with several lawsuits against it and no precedent on whether it can assert sovereign immunity. When the issue ultimately reaches the high court again in the next couple of years, we will hopefully get an answer to the question “does ERCOT have sovereign immunity?” Because, according to Chief Justice Hecht, the public wants to know. Mia Lorick is a litigation and appellate partner at Locke Lord LLP and focuses her practice on energy litigation, real estate litigation, and civil appeals. She is board certified in civil appellate law and
frequently advises on preserving error in the trial court for appellate review. Carrie Collier-Brown is a regulatory and administrative law attorney at Locke Lorde with a focus on Texas energy markets, energy regulations and administrative litigation. With her deep understanding of the Texas wholesale and retail electric markets and utility regulatory environment at the Texas PUC and ERCOT, Carrie provides clients with practical solutions in agency proceedings, corporate transactions, and civil litigation.
Endnotes
1. Elec. Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund LLC, 619 S.W.3d 628 (Tex. 2021). 2. Id. at 632. 3. Id. at 632–33. 4. Id. at 634. 5. Id. at 635. 6. Id. at 638–39. 7. Id. at 643. 8. Id. at 644. 9. Id. at 645–46 (citing TEX. R. APP. P. 27.3). 10. Id. at 646. 11. Id. at 647. 12. Id. at 648. 13. Id. at 649–50. 14. Id. at 650.
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By Sophia George
COVID-19 Vaccine Mandates:
An Employer’s Rights and Duties Under Federal Law
C
OVID-19 presented a variety of new and unique circumstances for many individuals to navigate in the employment context. Many employers are facing the reality that their offices would be shut down and employees would have to work from home. Employees had to relearn how to fulfill and complete their job duties without access to the office. In a global pandemic infecting around 33 million people in the United States, of which over 600,000 died from infection, employers are forced to prioritize the health and safety of their employees and the general public.1 Upon release of a vaccine, many employers debated whether they would require their employees to get the COVID-19 vaccine. While some employees felt comfortable and preferred for employers to require vaccinations prior to having employees come back into the office, others have felt differently. Critics most often voice concerns that the vaccine was rushed and does not have true approval by the U.S. Food and
Drug Administration (“FDA”). Based on precedent,2 some employers began to require employees to be vaccinated prior to returning to work, arguing that the health and safety of the general public outweighed any privacy concerns. This is especially true in places of employment that deal with immunocompromised members of society. For example, front line workers at hospitals and nurses at retirement communities are more likely than others to be required to take the COVID-19 vaccine given the population they serve. In order to protect the immunocompromised, employers who choose to implement a policy mandating vaccination will generally find shelter under the law given the public policy concern of protecting the general public. General Laws and Regulations It is well known that Texas law allows private employers to terminate an employee “at-will” with no recourse.3 Currently, case precedent shows courts have generally allowed for policies that favor the safety of the general public over an individual’s concerns related to their biological autonomy.4 While there are federal laws which provide protections to employees, the U.S. Congress delegated the Equal Employment Opportunity Commission (“EEOC”) with the task of interpreting legislation pertaining to same. As such, EEOC guidelines become binding authority when courts begin to analyze claims under these statutes. Under current EEOC guidelines, employers can require employees to take a COVID-19 vaccine so long as they do not have a qualifying disability under the Americans with Disabilities Act (“ADA”) or a sincerely held religious belief that would prevent an individual from receiving the vaccine.5 Exceptions to the Law On May 28, 2021, the EEOC updated its guidelines and stated employers may require that their employees be vaccinated as a condition of employment so long as the employer makes reasonable accom-
modations for any qualifying disability under the ADA or sincerely held religious belief.6 In order for a court to find against an employer’s vaccine policy, it would need to find that the policy is discriminatory in nature based on race, religion, gender, sexual orientation, or disability. While employers can require their employees to be vaccinated as a condition of employment, this policy must adhere to current federal laws restricting inherently discriminatory policies based on the listed areas. An employer’s reasonable accommodation can be provided in a variety of ways. For example, a retail worker who usually works the cash register might work where he or she is not exposed to customers. Another example could be an office worker who is allowed to work from home to provide a reasonable accommodation to his or her disability or religious belief. The goal of a reasonable accommodation is to allow an employee to continue with his or her general job duties without risk of termination. While an employer can require an employee to be vaccinated, under the Genetic Information Nondiscrimination Act (“GINA”), it cannot ask an employee to disclose medical information pertaining to family members.7 An employer may ask whether anyone in an employee’s family has tested positive for COVID-19, but questions beyond determining an employee’s potential exposure are prohibited. While this does provide some protections to employees who are concerned their privacy rights are being infringed on by a vaccine mandate, it does not address the fact that current guidelines give private employers the right to make vaccination a condition of employment.
are appealing a decision from the Southern District of Texas, asking the Court to reverse the district court ruling denying dismissal of their case alleging wrongful termination from Houston Methodist under its mandatory vaccination policy.8 This will likely not be the last case employers can expect to see on the issue. More employees who disagree with EEOC guidelines may ask courts to redefine the bounds of current guidelines to provide more protections to private
employees. The success of such litigation is yet to be determined. Generally, courts rely on administrative guidelines and narrow their interpretations of the law to any areas of uncertainty in the guidelines themselves. “The Middle Ground” Although the latest ruling from the Southern District of Texas was a win for employers across the state, many employers are still hesitant to require a
Current Litigation For any employees in Texas who do not fall under a legal exemption, the EEOC’s May 28, 2021 update to the guidelines severely limits their options. Currently, several front line workers at Houston Methodist Hospital in Houston, Texas thehoustonlawyer.com
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Civil Rights Act, and other various fedpolicy that could potentially lead to such eral statutes prohibiting workplace dislitigation. Instead, some employers may crimination. choose to strongly incentivThe best option for emize their employees to take ployees who have conthe vaccine. This could incerns about an employer clude incentives such as boCurrently, mandating the COVID-19 nuses or making the vaccine case precedent vaccination is to reach easily accessible by scheduling appointments at the shows courts have out to an attorney to better understand what opplace of employment. The generally allowed tions are available under EEOC has spoken to this in its guidance as well, explainfor policies that current law. Given that COVID-19 is still an ising that an employer may offavor the safety of sue of first impression fer incentives to employees the general public for lawmakers and the who voluntarily receive the COVID-19 vaccine if the inover an individual’s judiciary, this will likely be an area of developing centive is not “so substantial concerns related law that attorneys should as to be coercive.”9 While an employee might attempt to their biological be intent on closely following to best assist their to come to an agreement autonomy.” clients. with his or her employer, it is important to note that as the law currently stands, an employer is Sophia George is an associate attorney not under a requirement to agree to any at Ware, Jackson, Lee, O’Neill, Smith & accommodation unless legally required Barrow, LLP where she practices across a to do so under the ADA, Title XII of the wide spectrum of areas including employ-
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Endnotes
1. Mortality Analysis, JOHN HOPKINS UNIV. AND MEDICINE, CORONAVIRUS RESOURCE CTR., https:// coronavirus.jhu.edu/data/mortality (last updated July 5, 2021, 6:55 p.m.). 2. See Allen Smith, When Employers Can Require COVID-19 Vaccinations, SHRM (Dec. 8, 2020), https:// www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-mandatoryvaccinations.aspx (noting an early example of the discussion of employee vaccination requirements). 3. Cty. of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex. 2007). 4. See e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905). 5. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EQUAL EMP’T OPPORTUNITY COMM’N at § K.5, https://www.eeoc.gov/wysk/what-you-should-knowabout-covid-19-and-ada-rehabilitation-act-and-othereeo-laws# (last updated June 28, 2021) (emphasis added). 6. Id. at § K.2, K.12. 7. Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff (2008). 8. Gwendolyn Wu & Gabrielle Banks, Unvaccinated Houston Methodist Employees Appeal Judge’s Ruling on COVID Vaccine Mandate, HOUS. CHRON., June 15, 2021, https://www.houstonchronicle.com/news/ houston-texas/health/article/Unvaccinated-HoustonMethodist-employees-appeal-16249282.php 9. See U.S. EQUAL EMP’T OPPORTUNITY COMM’N, supra note 5 at § K.17.
By Emily C.A. Hull
CONFLICT, CUSTODY & COVID:
Vaccination Consent
W
hile at CVS’ Minute Clinic for a last-minute camp physical for one of my kids earlier this summer, I overheard an angry mother describing that Dad had taken the child to an Independence Day gathering and exposed their daughter to COVID-19 before returning her to Mom’s home. Mom was upset and angry that Dad had apparently taken no precautions and the sick child was miserable. I kept my distance—and my mask on. Unlike a child with a simple cold, a COVID-positive child carries significant implications for each parent’s employment and social activities; the child’s ability to attend school, daycare, or summer camp; and the concern that vulnerable household members or members of the public have been exposed. Making small talk, our nurse practitioner informed us that positive COVID-19 test numbers are up and the clinic sees elevated numbers of positive tests after every holiday—even in vaccinated people—and she worries about the incoming virus mutations. It was a reminder that the COVID-19 pandemic isn’t over yet and may not be for a while. It’s also teaching us how to prepare better for the next pandemic. With rapid-fire state laws, seemingly never-ending Texas Supreme Court emergency orders, and high conflict custody cases with novel questions, it can
be difficult to keep abreast of the current state of affairs in family law. Parents disagreeing about vaccinations is not new,1 but as COVID-19 vaccines are approved for even younger ages, legal practitioners can expect more inquiries. Each parent typically has the right to consent to routine medical and dental health care when they have possession of the child, provided the care does not involve an “invasive procedure,” in which case the custody order often provides that parents must agree before consent may be given.2 What if parents disagree on vaccination or, more commonly, what if one parent is simply absent or nonresponsive and fails to respond to requests for medical consent? In Texas, as of July 2021, 49.8% of adults have received at least one dose of the COVID vaccine including 90% of those ages 65+.3 The Centers for Disease Control and Prevention currently recommends the vaccine for everyone over the age of twelve for whom it is not medically contraindicated, but some parents are wary.4 Are Vaccinations an “Invasive Procedure” as Contemplated by the Texas Family Code? In a case out of Dallas, the Second Court of Appeals found that because the Family Code does not define “invasive procedure,” it was appropriate to use the definition found in Texas Health and Safety Code, Section 85.202(3).5 That case dealt with orthodontia, rather than vaccines, so Section 85.202(3)(b) may not be the correct statute for consideration. Section 85.202(3)(a) provides that “a surgical entry into tissues, cavities, or organs” is considered an invasive procedure.6 While a vaccine is admittedly “an entry into tissue” the question becomes, is it “surgical”? So, what defines “surgical”? To answer this question, I consulted with a local healthcare attorney7 who referred me to the Current Procedural Terminology (CPT).8 CPT codes, developed and maintained
car. They do not include use of inby the American Medical Association, struments such as otoscopes for exare used nationally within the medical aminations or very minor procedures community for invoicing and categosuch as drawing blood.11 rizing medical care. Each discrete task, such as a medical procedure or test, is assigned a specific code, ensuring uniforTaking this into account, although vacmity in care and billing practices. Code cinations are not specifically mentioned, 90460 is used for billing the first coma sound argument is that vaccinations ponent of each pediatric vaccine adminare akin to “a very minor procedure such istered, regardless of manner of inocuas drawing blood,” and thus are neither lation, and includes counseling for the surgery nor an invasive procedure, parfirst vaccine component. ticularly as vaccines are Each specific vaccination also excluded as surgery also has its own code; but by the nationally used and all vaccinations, both adult When drafting industry-accepted CPT and pediatric and including codes. your final or tempoall COVID-19 vaccinations, There are a few circumare in the 90000s.9 stances where a minor rary order allocating may consent to vaccinaIs vaccination ever coded rights and duties, tion, but parents get the fias surgery? Surgical CPT codes range from 10021 to consider specifically nal say unless the child is: legally emancipated; en69990 and these do include allocating the right listed and on active duty in minimally invasive procedures, but surgical codes to make vaccination the military; over the age of sixteen and lives apart never overlap with vaccinadecisions...” from their parents while tions. Even if a vaccination managing their own afis given in the same visit, fairs; pregnant and vaccination is recomsuch as a tetanus shot given at the same mended; in a criminal justice facility; or time as stitches for a child’s head injury, is consenting to the vaccination of their the two tasks are coded separately. The own minor child.12 takeaway here is that in the medical community, vaccinations, even though As with all things in family law, the the skin is pierced, are not ever considbest interest of the child must be taken ered surgical operations. into account, safety issues in vulnerable Further, federal Medicare guidelines populations (either the child or family provide that “[s]urgical and other invamembers) must be factored in, and pubsive procedures are defined as operative lic policy arguments may come into play. procedures in which skin or mucous A parent wanting to vaccinate their child membranes and connective tissue are as routine preventative care and without incised or an instrument is introduced the consent of the other parent should 10 through a natural body orifice” and feel comfortable doing so, as long as they have the right to consent to day-to-day that, medical care. [T]hey include all procedures deIdeally, family law attorneys will look scribed by the codes in the surgery for ways to avoid conflict before it besection of the CPT and other invacomes a problem. When drafting your fisive procedures such as percutaneous nal or temporary order allocating rights transluminal angioplasty and cardiac and duties, consider specifically allocatcatheterization. They include miniing the right to make vaccination decimally invasive procedures involving sions, particularly with clients for whom biopsies or placement of probes or this is a hot-button issue. Lastly, recatheters requiring the entry into a mind your conservator clients that they body cavity through a needle or tro-
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have a continual duty to keep the other conservator(s) informed of even routine medical care, and encourage meaningful discussions beforehand to minimize further conflict and distrust. Emily C. A. Hull practices in Harris and surrounding counties focusing on family law, estate planning, and real estate. Emily is also a civil and family law mediator. She has four children and is accustomed to generating creative solutions.
Endnotes
1. See Richard Knox, HPV Vaccine: The Science Behind the Controversy, NPR (Sept. 19, 2011), https://www.npr. org/2011/09/19/140543977/hpv-vaccine-the-sciencebehind-the-controversy (discussing controversy over Gardasil and Cervarix, two HPV vaccines); see also Human Papillomavirus (HPV) Vaccination: What Everyone Should Know, CTRS. FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/vaccines/vpd/ hpv/public/index.html (last updated Mar. 17, 2020) (discussing answers to common questions about the HPV vaccine). 2. TEX. FAM. CODE. ANN. § 153.074 (“Unless limited by a court order a parent appointed as a conservator of a child has the... right to consent for the child to medical and dental care not involving an invasive procedure.”). 3. U.S. COVID-19 vaccine tracker: See your state’s progress, MAYO CLINIC, https://www.mayoclinic.org/coronavirus-covid-19/vaccine-tracker (last visited July 20, 2021). 4. Children and Teens, CTRS. FOR DISEASE CONTROL AND PREVENTION (May 27, 2021), https://www.cdc. gov/coronavirus/2019-ncov/vaccines/recommendations/adolescents.html (“CDC recommends everyone 12 years and older should get a COVID-19 vaccination to help protect against COVID-19... Children 12 years and older are able to get the Pfizer-BioNTech COVID-19 Vaccine.”). 5. Brennan v. Cedeno, No. 2-09-020-CV, 2010 WL 2089979, at *3 (Tex. App.—Fort Worth May 20, 2010, no pet.) (citing TEX. HEALTH & SAFETY CODE ANN. § 85.202(3) (Vernon 2009)). 6. TEX. HEALTH & SAFETY CODE ANN. § 85.202. 7. See Megan Neel, DUMASNEEL, https://dumasneel.com/ attorney-bios/#megan-neel (Megan Neel is a Houstonbased attorney who has over twenty years of experience in the healthcare industry and focuses primarily on healthcare business transactions and related compliance). 8. Practice Management, CPT, AM. MED. ASSOC., https:// www.ama-assn.org/practice-management/cpt. 9. AM. MED. ASSOC., CPT CATEGORY I NEW SARSCOV-2 VACCINE CODES LONG DESCRIPTORS (2021), available at https://www.ama-assn.org/system/ files/2021-01/covid-vaccine-long-descriptors.pdf. 10. National Coverage Determination (NCD) for Surgical or Other Invasive Procedure Performed on the Wrong Body Part, CTRS. FOR MEDICARE & MEDICAID SERVS., www.cms.gov/medicare-coverage-database/details/ ncd-details.aspx?NCDId=328&ver=1&fbclid=IwAR3A xnkK9DBTN3rut8cSB_Oiy7kmA7wKo2LL9IRUJhJhQ jSEnnt_3YrPxJY. 11. Id. 12. TEX. FAM. CODE. ANN. § 32.001 (describing circumstances of consent of a child by a non-parent).
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By Anuj A. Shah
The Shifting Landscape in Immigration Law in 2021
O
ver the years, immigration has evolved into one of the more legally complex areas of law, evidenced in no small part by the U.S. Supreme Court’s having addressed immigration in at least eight cases just this past term.1 Additionally, those following news headlines are aware that immigration continues to provide a heated battleground for those on all sides of the political spectrum. Former President Donald Trump regularly touted “being tough on immigration” as one of the salient points of his campaign, and he delivered on his promise. The Trump Administration significantly altered major immigration policies and procedures. While international law had sanctioned certain political asylum protections since the middle of the 20th century, applicants now found every stage of the application process much more difficult.2 Enforcement under Immigration and Customs Enforcement (“ICE”) became much swifter and more stringent, greatly affecting the ability for noncitizens to enter the United States, whether by applying for visas at a U.S. Department of State consular post, or while applying for admission at a legal or physical border here in the United States. Interestingly, in a maneuver that had been implemented only rarely by previous administrations, the Administration’s attorney generals began referring a large number of Board of Immigration Appeals (“BIA”) decisions to themselves.3 The BIA, under the Department of Justice, is the agency’s appellate body that reviews Immigration Court decisions. BIA decisions are controlling law nationwide in immigration cases barring either conflicting U.S. Circuit Court of Appeals authority in the case’s respective circuit jurisdiction, or of course, conflicting U.S. Supreme Court authority. Through this referral mechanism, attorney generals under the Trump Administration often overturned years of precedent, transforming the nature of
the relief otherwise available to possibly tens of thousands of noncitizens seeking relief under the immigration laws. Two of those decisions are discussed below. Moving to the present, President Joe Biden had promised emphatically during his campaign trail to make a favorable difference for noncitizens and immigration policy. This is no simple task, since he inherited a vastly different immigration landscape, as well as a global pandemic. However, President Biden has instructed the appropriate immigration agencies to implement policies to relieve backlogs and to be selective in immigration enforcement. In addition, Attorney General Merrick Garland has been referring BIA cases to himself to restore many of the legal policies and case holdings that predated the previous administration and were more favorable to noncitizens. As a final thought, while the focus of this article will be on recent court decisions, it is useful to understand that immigration matters invoke all three branches of government, as executive agencies govern much of the day-to-day
operations of the system, and the legislative branch is called on regularly to enact laws that impact noncitizens. Let us, then, turn to some of the more noteworthy immigration cases of the past months. A Sampling of Recent Significant Immigration Cases 1. Texas v. U.S., et al.4 Most people are, by now, familiar with the Deferred Action for Childhood Arrivals (“DACA”) program that was initiated by former President Barack Obama in 2012, essentially via a Department of Homeland Security (“DHS”) Memorandum.5 DACA was meant to provide protection from removal from the United States for qualifying individuals who, as children, came with their parents to the United States, in most cases without legal authorization. Those closely following DACA may remember that in September 2017, just as Houston was coming out of Hurricane Harvey, the Trump Administration announced it would end DACA. Lawsuits
(along with politically heated rhetoric and anxiety) abounded, which ultimately ended just last year with the Supreme Court’s 5-4 decision in DHS v. Regents of the Univ. of California, a decision upholding the DACA program.6 The Regents decision addressed, inter alia, the government’s attempt to rescind DACA. The Supreme Court ultimately held that the attempt to rescind DACA was reviewable, and that, upon review, rescission of the program was arbitrary and capricious under the Administrative Procedures Act (“APA”). DACA, then, lived to see another day. The matter was not over, however. While the Supreme Court was deciding the rescission issue in Regents, a number of states had already begun litigating the legality of DACA itself. Those suits culminated in a decision that was issued on July 16, 2021, viz., Texas v. United States. In a 77-page decision, U.S. District Judge Andrew Hanen of the Southern District of Texas granted summary judgment in favor of Plaintiffs, finding that DHS had violated the APA with the creation of
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DACA and its continued operation. Specifically, the court held that DACA should have been subjected to formal noticeand-comment under the APA, and, additionally, that the substance of the original DACA program was illegal because it exceeded powers Congress granted to executive branch agencies. The court vacated the DACA memo and the DACA program and remanded to DHS for further consideration.7 As of the date of this article being finalized,8 Defendants, represented by the Mexican American Legal Defense Fund (“MALDEF”), have stated they will appeal, and are exploring other related procedural options in the interim.9 2. Niz-Chavez v. Garland 10 Similar to the function of misdemeanor information or an indictment in criminal matters, in immigration law, the charging document that initiates “removal proceedings” against a noncitizen, placing him or her in Immigration Court, is called a Notice to Appear (“NTA”). By law, the NTA must contain certain information for it to be considered a proper NTA. Yet for decades, DHS has been issuing (arguably) insufficient NTAs to noncitizens. The issue made its way up all the way to the Supreme Court, first in 2018, in the Pereira v. Sessions decision,11 and again, more recently, in Niz-Chavez v. Garland. In Pereira, the Supreme Court ruled that an NTA had to contain all of the legally required information for it to constitute a valid NTA. Following Pereira, however, the BIA issued several precedential decisions that interpreted Pereira very narrowly, and the several U.S. Courts of Appeals issued often conflicting decisions on the numerous arguments that arose post-Pereira. One of the principal arguments, also adopted by the U.S. Court of Appeals for the Fifth Circuit, was that an NTA, coupled with a follow-up hearing notice from the Immigration Court, would satisfy the legal requirements for that NTA to be legally sufficient. In Niz-Chavez, the Supreme Court clarified that issue. The Court held unequiv26 July/August 2021
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ocally that an NTA must contain the time and place of the hearing in a single document, and not in a combination of documents, in order to trigger what is termed the “stop-time rule” in cancellation of removal cases (one of many types of relief noncitizens may seek in Immigration Court). A subsequently issued hearing notice, the Court held, does not stop time if the NTA did not include the required information. For those outside of the immigration world, this may appear to be a mere technicality. Within the immigration space, however, this is a seismic decision, potentially opening up relief for many thousands of noncitizens who had previously, and incorrectly, been foreclosed from pursuing certain types of relief in Immigration Court. 3. Sanchez v. Mayorkas 12 This case deals with a technical aspect of Temporary Protected Status, or TPS. Over twenty years ago, the U.S. government began, by statute,13 extending temporary immigration relief to individuals from certain countries that had experienced devastating events, such as natural disasters or protracted civil wars. The original countries from which the U.S. offered qualifying individuals TPS were Honduras, El Salvador, and Nicaragua. Since that time, over a dozen other countries, such as Haiti, Nepal, Syria, and Burma, to name a few, have been designated TPS countries. In immigration cases, the ability to qualify for immigration benefits very often depends on whether a noncitizen was actually inspected and admitted into the U.S., or, whether her or his entry was conducted in an alternate matter (lawful or unlawful). Those who were inspected and admitted enjoy certain benefits under the law that those who were not so admitted often do not. As an example of the latter, most noncitizens with TPS had originally entered the U.S. without proper authorization. Therefore, even if they were to marry a U.S. citizen, for instance, they could not
avail of the laws to adjust their status (the lingo for “getting a green card” in many cases), as their entry would not have been a proper “admission.” For years, however, proponents argued that TPS actually did constitute an admission, given the procedural hurdles a noncitizen normally undergoes to be granted TPS. After years of uncertainty (and an even circuit split),14 the Supreme Court, in a unanimous decision, resolved the question, holding that under the applicable adjustment of status provision, TPS was not an admission.15 The Court reasoned that “lawful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.”16 This decision will prevent many TPS recipients who entered without inspection the opportunity to become permanent residents. It does not, however, impact TPS recipients who initially entered with inspection, so that those in the latter category may, should they marry a U.S. citizen, for instance, still apply for lawful permanent residence. Advocates are hoping that Congress might amend the Immigration and Nationality Act (“INA”) to make TPS an admission, but until that time, the Supremes’ decision reigns, well, supreme. 4. Matter of A-B-, Respondent, 28 I&N Dec. 307 (2021) This is one of those decisions which, as discussed above, the U.S. Attorney General referred to himself to alter the state of the law on a particular topic. On June 16, 2021, Attorney General Garland issued his decision, the latest iteration of Matter of A-B- (“A-B- III”), vacating the two previous Matter of A-B- decisions, the first from 2018, and the second from earlier this year.17 For context, in 2014, the BIA had issued a decision, Matter of A-R-C-G-.18 This was a precedential decision in the political asylum context, finding that the group of “married women in Guatemala who are unable to leave their relationship,” constituted a valid “particular social group,”
one of the five protected grounds considered in asylum cases.19 A-R-C-G- was a landmark decision which strengthened the ability of adjudicators to grant asylum to individuals fleeing gender and family-based persecution in particular, and more broadly, to individuals fleeing harm by non-state actors. In 2018, and then again in January 2021, however, then-AGs issued A-B- I and II, respectively, decisions which significantly weakened the ability of survivors of gender-based violence, as well as those fleeing persecution by private (nongovernmental) actors, among others, to make a cognizable claim for asylum in the U.S. Extensive litigation ensued nationwide resulting in, as one might expect, conflicting decisions. Attorney General Garland’s A-B- III decision has helped resolve the conflict, at least for now. His opinion specifically states that adjudicators should follow the pre-A-B- I (and II) model, including Matter of A-R-C-G-, the precedential decision that provides a framework for determining the asylum eligibility of certain survivors of gender violence. By doing so, Garland’s opinion establishes a uniform set of rules noncitizens can apply in their cases barring a specific Circuit Court case to the contrary in a given circuit. The import of this decision is nothing less than momentous. Thousands of individuals seeking protection from certain categories of harm now have a pathway reopened to them through which they can, once again, pursue lives free of persecution, or even torture. As outlined here, immigration law presents a rich landscape of legal and intellectual exploration. This article provided only a mere sampling of the issues that immigration practitioners deal with daily. There is a profusion of cases that could have been included with the above mentioned cases in this discussion, such as: restoring “administrative closure” to the Immigration Courts,20 clarifying what is and is not a “crime of violence” in the criminal (and immigration) context,21 and a case addressing the shifting
burdens of proof in Immigration Court cases.22 Whatever the case, immigration promises to remain an abundant arena of legal deliberation for the foreseeable future. Anuj A. Shah is the managing partner of Anuj A. Shah, P.C., and is Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization. He is a member of The Houston Lawyer editorial board.
Endnotes
1. Pereida v. Barr, 140 S. Ct. 1102 (2020); Niz-Chavez v. Barr, 141 S. Ct. 84 (2020); Pham v. Guzman Chavez, 141 S. Ct. 228 (2020); Rosen v. Dai, 141 S. Ct. 1234 (2021); Sanchez v. Wolf, 141 S. Ct. 973 (2021); Trump v. Sierra Club, 141 S. Ct. 618 (2020); U.S. v. Palomar-Santiago, 141 S. Ct. 1615 (2021); Wolf v. Innovation Law Lab, 141 S. Ct. 617 (2020). 2. See Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration, U.S. DEP’T OF HOMELAND SEC. (Dec. 20, 2018), https://www.dhs. gov/news/2018/12/20/secretary-nielsen-announceshistoric-action-confront-illegal-immigration (discussing the Migrant Protection Protocol in which individuals entering the U.S. from Mexico without proper documentation may be returned to Mexico for the duration of their immigration proceedings). 3. 8 C.F.R. § 1003.1(h)(1)(i).
4. Texas v. U.S., No. 1:18-CV-00068, 2021 WL 3022434 (S.D. Tex., July 16, 2021). 5. Memorandum from Janet Napolitano, Sec’y of Homeland Sec. to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Prot. (June 15, 2012) (on file with author). 6. Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020). 7. Texas, 2021 WL 3022434. 8. This article was drafted in July 2021. 9. Rapid Response Briefing: The Texas Court Decision on DACA and its Implications for Higher Education, PRESIDENTS’ ALLIANCE ON HIGHER EDUCATION AND IMMIGRATION (July 22, 2021) (downloaded using Zoom). 10. Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). 11. Pereira v. Sessions, 138 S. Ct. 2105 (2018). 12. Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021). 13. 8 U.S.C. § 1254a; INA § 244. 14. The Sixth, Eighth, and Ninth Circuit Courts of Appeal held that a grant of Temporary Protected Status is considered an “admission” for adjustment purposes, while the Third, Fifth, and Eleventh Circuit Courts have held the opposite. 15. 8 U.S.C. § 1255 (2009); INA § 245(a). 16. Sanchez v. Mayorkas, 141 S. Ct 1809, 1810 (2021). 17. Matter of A-B-, Respondent, 27 I&N Dec. 316 (2018); Matter of A-B-, Respondent, 28 I&N Dec. 199 (2021). 18. Matter of A-R-C-G et al., Respondents, 26 I&N Dec. 388 (2014). 19. The four remaining protected grounds are: race, nationality, religion, and political opinion. 8 U.S.C. § 1158; INA § 208. 20. Matter of Cruz-Valedez, Respondent, 28 I&N Dec. 326 (2021). 21. Borden v. U.S., 141 S. Ct. 1817 (2021). 22. Pereida, 140 S. Ct.
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By Janna Mouret and Rebecca Piller
Crisis in the Suez Canal
E
Background gypt’s Suez Canal plays a critical role in global trade and provides the quickest seaborne route connecting Asia and Europe.1 Since its completion in 1869, this 120mile man-made waterway has experienced growth, ownership changes, war, and much more.2 In July 1956, Egypt nationalized the Suez Canal and created the Suez Canal Authority (the “SCA”) as a state-owned authority to own, manage, operate, and maintain the canal.3 Today, it continues to be one of the world’s most important and most-used waterways. On March 23, 2021, traffic on the Suez Canal came to a standstill when the Ever Given, one of the largest container ships in the world, ran aground en route from China to the Netherlands after turning sideways during a dust storm and strong winds. The Ever Given blocked the passage of hundreds of ships through the canal for six days. Finally, on March 29, 2021, tugboats and rescue teams dislodged the Ever Given, allowing ships to pass through the canal once again. However, the Ever Given did not join them. Instead, the SCA relocated the ship to the Great Bitter Lake, where it detained the ship, its cargo, and many crewmembers for over
three months. As discussed below, a complicated legal battle and negotiation ensued between the SCA and the Ever Given’s owner, Shoei Kisen Kaisha Ltd. Legal Matters At the center of the Suez Canal dispute are two issues: the party or parties at fault, and the resulting damages. Following the detention of the Ever Given, the SCA initially demanded approximately $916 million in damages from the Ever Given’s owner, including $300 million for loss of reputation, $300 million for a salvage bonus, and a remaining unallocated $316 million.4 On May 23, 2021, the SCA has reduced its claim to $550 million, in hopes of reaching an out-of-court settlement, and has clarified that its claim consisted of canal damages, loss of revenues and business, and the costs of rescuing the Ever Given.5 The SCA has also offered to release the Ever Given from its custody if its owner provides a $200 million deposit, with the remaining $350 million to be paid later.6 In early April 2021, the Ever Given’s owner filed a general average claim to compel the ship’s operator and cargo customers to share losses in connection with the Suez Canal closure,7 and on April 23, 2021, the Ever Given’s insurer, UK Club, appealed the detention of the ship, its cargo, and its crewmembers.8 An Egyptian court subsequently ruled against the appeal,9 and the SCA stated it would detain the Ever Given until an ongoing investigation is completed and the Ever Given’s owner paid the damages claimed against it. In late April 2021, the Ever Given’s owner attempted to limit its liability by forming a limitation fund of $115 million pursuant to the Convention on Limitation of Liability for Maritime Claims, 1976 (also known as “LLMC 1976”)10 limiting claimants to payments from the fund. Typically, limitation funds do not apply to salvage claims (i.e., claims associated with the ship) or general average claims (i.e., claims to share losses
between a ship owner and its cargo customers if a catastrophic event occurs).11 The main issue at hand is which of the SCA’s claims fall within the limitation fund; this remains undetermined. In late May 2021, the Ever Given’s owner asserted a claim that the SCA was at fault because its pilots allowed the Ever Given to navigate through the Suez Canal despite the dust storm and high winds.12 In response, while continuing to deny fault or responsibility, the SCA has asserted a new claim, that the Ever Given should have waited for the weather conditions to improve before entering the Suez Canal, and so the owner was at fault for losing control of its ship.13 An Egyptian court has adjourned the proceedings until late June 2021 to allow the SCA and the Ever Given to continue negotiations. On July 7, 2021, more than three months after the initial incident, the SCA released the Ever Given to continue its voyage to the Netherlands after the SCA and the Ever Given’s owner and insurer reached an undisclosed settle-
ment.14 However, the legal battle for the Ever Given’s owner is not over and could take years to resolve. Following the ship’s release, the Ever Given’s owner expects potentially “hundreds or thousands” of additional legal claims by other parties, including individual cargo owners due to the shipping delays caused.15 Effects on Global Trade and Supply Chains The Suez Canal is one of the most heavily used and critical waterways in the world, handling an estimated 10% of global trade and approximately $9.6 billion worth of container cargo per day, according to Lloyd’s List Intelligence as of March 2021.16 During the six-day closure of the Suez Canal, the Ever Given blocked hundreds of ships from passing through the Suez Canal in both directions, a closure with rippling effects on global trade and supply chains, including cargo shipment delays, scheduling delays and changes, route changes, increased transportation costs, and port
congestion. Moreover, the closure came at a time when global trade and supply chains were already stressed due to COVID-19 demands and other events. Preventative Measures Today, the growth of the global economy, including imports and exports, only continues to accelerate, as governments, industries, companies, and consumers navigate through a rapidly changing world and emerge from the COVID-19 pandemic. As ships have increased in size and capacity to help accommodate growth and improve efficiency, many ports and waterways around the world have strained to add the capacity and infrastructure to accommodate these larger ships. The Suez Canal closure has shown the world that even the most critical and well-established waterways of the world are affected by these developments. Over the years, the Suez Canal has undergone multiple expansions to accommodate the growth of the global
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economy and increased ship traffic and ship size. For example, in 2015, the Suez Canal expanded to allow two-directional ship traffic by deepening the main channel and creating a new 22-mile channel that runs parallel to the main channel. Following the Ever Given incident, the SCA announced new plans to deepen and widen portions of the canal17 and began dredging (i.e., removing sediment, debris, and other materials from waterways) for the expansion; it expects to complete work in the next two years.18 The proposed expansion will allow larger ships and more traffic to pass through the Suez Canal, as well as improve infrastructure to help avoid future catastrophic closures. PARALLELS WITH THE HOUSTON SHIP CHANNEL The Suez Canal closure raises the question about what would happen if a similar closure occurred in the Houston Ship Channel, namely by examining this issue from the standpoint of the Port of Houston Authority of Harris County, Texas (the “Port of Houston Authority”) and the local (“non-federal”) governmental sponsor of the Houston Ship Channel. Regional Impacts The Houston Ship Channel sees more deep-draft ship calls each year than any other port in the United States (along with nearly 200,000 barge transits)19 and serves the nation’s largest petrochemical complex. Each year the 200-plus private and public facilities that comprise the greater Port of Houston drive $802 billion in national economic value20 and $339 billion in statewide economic value (approximately 20% of Texas’ gross domestic product).21 Accordingly, a temporary closure of the Houston Ship Channel could have significant regional and national impacts. However, a fact pattern similar to the Ever Given closure is unlikely in the first instance, because local conditions make it improbable that a ship would be 30 July/August 2021
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grounded in similar circumstances or remain grounded and close the Houston Ship Channel for days. Instead, the most significant closures within the Houston Ship Channel have been caused by inclement weather, while infrequent ship collisions have also resulted in shortterm closures. In the event of a closure of the Houston Ship Channel, while some cargo would find other trade routes to and from the region, the impacts could be more strongly felt by bulk liquids transported by ship. Liability In the event of a ship-caused closure in the Houston Ship Channel akin to the Ever Given incident, the apportionment of liability would be highly fact-dependent. Liability for navigational or maneuvering errors, delays, and other matters between the ship owner and charterer may be set out in the “charter party,” a specialized contract whereby one individual or entity, the charterer, is permitted to use a ship belonging to another, usually for the carriage of cargo. Under some charter parties, the charterer is responsible for the actions of the ship’s operator, master, and crew, while other charter parties place that responsibility with the ship owner. Additionally, the Texas Transportation Code mandates that state-licensed pilots (i.e., the individuals that guide ships arriving to and departing from ports) provide most piloting services within the Houston Ship Channel and sets forth the legal regime for their liability.22 As for the Port of Houston Authority’s recovery for any damages it might suffer, it would likely look to the provisions of its tariff (i.e., a set of rates, rules, and regulations promulgated in accordance with the Shipping Act, 46 U.S.C. § 40101 and posted on the Port of Houston Authority’s website), in addition to tort and other remedies at law and in equity. Preventative Measures On May 10, 2021, the Port of Houston
Authority began initial construction work to widen and deepen the Houston Ship Channel as part of its latest expansion project, known as Project 11.23 For almost a decade, the Port of Houston Authority has partnered with the U.S. Army Corps of Engineers and other governmental agencies to plan Project 11 and bring its monumental improvements to fruition. As global imports and exports continue to grow, and global demand and consumption continues to increase, Project 11 aims to accommodate these opportunities by expanding the Houston Ship Channel to allow for larger ships and more traffic and to improve overall safety and efficiency. Like the SCA’s current expansion project of the Suez Canal, the Port of Houston Authority has made Project 11 a high-priority objective to improve the Houston Ship Channel; to bring continued economic growth and other benefits to the State of Texas, the United States, and the world; and to head off challenges such as the Suez Canal closure. Janna Mouret is counsel for the Port of Houston Authority. Previously, she was an associate in the Corporate group at Haynes and Boone, LLP and the Capital Markets group at Shearman & Sterling LLP. Janna earned her B.B.A. in Finance from Texas A&M University and her J.D. from the University of Houston Law Center. Rebecca Piller is counsel for the Port of Houston Authority. Previously, she was an associate in the Real Estate and Finance group at Locke Lord LLP. Rebecca earned her J.D. from the University of Texas School of Law and her B.A. from Trinity University.
Endnotes
1. Suez Canal, HISTORY (Mar. 30, 2021), https://www. history.com/topics/africa/suez-canal. 2. Id. 3. SCA Overview, SUEZ CANAL AUTH., https://www. suezcanal.gov.eg/English/About/SuezCanalAuthority/ Pages/SCAOverview.aspx (last visited July 14, 2021). 4. Kelly McLaughlin & Madison Hall, Egypt Seized the Ever Given, Demanding the Ship’s Owners Pay Nearly $1 Billion for Blocking the Suez Canal, INSIDER (Apr. 13, 2021), https://www.businessinsider.com/egypt-seizedever-given-demanding-owners-pay-suez-canal-blocking-2021-4.
5. Aidan Lewis, Court Allows Suez Canal to Keep Holding Ever Given – Lawyers, REUTERS (May 23, 2021, 6:52 a.m.), https://www.reuters.com/world/middle-east/ court-allows-suez-canal-keep-holding-ever-givenlawyers-2021-05-23/. 6. Id. 7. McLaughlin & Hall, supra note 4. 8. Nafisa Eltahir, Insurer for Suez Grounded Ship Appeals Detention by Egypt, REUTERS (Apr. 23, 2021), https://www.reuters.com/business/energy/insurersuez-grounded-ship-appeals-detention-by-egypt2021-04-23/. 9. Aidan Lewis, Egyptian Court Rejects Appeal Against Detention of Ship in Suez Canal, REUTERS (May 4, 2021), https://www.reuters.com/world/middle-east/egyptiancourt-rejects-appeal-against-detention-ship-suezcanal-source-2021-05-04/. 10. See Convention on Limitation of Liability for Maritime Claims, ch. III, Nov. 19, 1976, No. 24635, 1456 U.N.T.S. 1-24635 (outlining the rules relating to the constitution and distribution of limitation funds). 11. Id. 12. Aidan Lewis, Ship Owner Says Suez Canal Was at Fault Over Ever Given Grounding – Lawyer, REUTERS (May 22, 2021), https://www.reuters.com/world/ship-ownersays-suez-canal-was-fault-over-ever-given-groundinglawyer-2021-05-22/. 13. Amira El-Fekki & Jared Malsin, Egyptian Officials Accuse Ever Given’s Captain of Losing Control of Ship in Suez Canal, WALL STREET J., May 30, 2021, https:// www.wsj.com/articles/egyptian-officials-accuse-evergivens-captain-of-losing-control-of-ship-in-suez-canal-11622406701.
14. Nafisa Eltahir, Ever Given Container Ship Leaves Egyptian Waters, REUTERS (July 13, 2021), https://www. reuters.com/world/middle-east/ever-given-containership-leaves-egyptian-waters-source-2021-07-13/. 15. Ellen Milligan, Suez Ship’s Owner Braces for ‘Thousands’ of Legal Claims, YAHOO FINANCE (July 13, 2021), https://finance.yahoo.com/news/ever-given-ownerexpects-thousands-153202495.html. 16. James Baker, Eric Watkins, & David Osler, Suez Canal Remains Blocked Despite Efforts to Refloat Grounded Ever Given, LLOYD’S LIST (Mar. 24, 2021), https://lloydslist.maritimeintelligence.informa.com/LL1136229/ Suez-Canal-remains-blocked-despite-efforts-tor e f l o a t- g r o u n d e d Ever-Given. 17. Nadine Awadalla, Suez Canal Chief Says Southern Stretch to Be Expanded, REUTERS (May 11, 2021), https://www. reuters.com /world / suez-canal-chief-sayssouthern-stretch-beexpanded-2021-05-11/. 18. Aidan Lewis, Suez Canal Starts Dredging Work to Extend Double Lane, REUTERS (May 15, 2021), www. reuters.com /world / m i d d l e - e a s t /s u e z canal-starts-dredging-
work-extend-double-lane-statement-2021-05-15/. 19. PORT HOUSTON, 2040 PLAN, COMPREHENSIVE LONG-RANGE PLAN 7, 19 (2020), available at https:// porthouston.com/wp-content/uploads/Port-Houston2040-Plan.pdf. 20. Benefits, HOUSTON SHIP CHANNEL EXPANSION – PROJECT 11, https://www.expandthehoustonship channel.com/benefits/ (last visited July 14, 2021). 21. PORT HOUSTON, supra note 19 at 9. 22. TEX. TRANSP. CODE ANN. §§ 66.069, 66.083. 23. Press Release, Port Houston, History is Made as Project 11 Begins Construction (May 10, 2021) (on file with author).
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Jennifer Hasley Takes Office as HBA President 2021-2022 President Jennifer A. Hasley of Hasley Scarano, L.L.P. and 2020-2021 President Bill Kroger of Baker Botts L.L.P. celebrated the accomplishments of the association and its members during the past year and outlined goals for the coming year at the Houston Bar Association’s Annual Dinner on July 15 at River Oaks Country Club.
Most photos by Debi Wallace, Barfield Photography
Shauna Johnson Clark
2021-22 HBA President Jennifer Hasley and Greg Hasley
The slogan for 2021-22 emphasizes that HBA and its members are “Stronger Together”
2020-21 HBA President Bill Kroger and Elizabeth Kroger
Greg, Katie, Jennifer and Hunter Hasley
Bill Kroger and Jennifer Hasley present Susan L. Bickley with the 2021 Justice Ruby Kless Sondock Award.
Bill Kroger and Jennifer Hasley with members of the HBA team, from left: Kroger, HBA Executive Director Mindy Davidson, Amanda McLeroy, Tara Shockley, Bonnie Simmons, Angela Crenwelge, Ashley Steininger, Andrea Chambliss, Hasley, and Ron Riojas. 32 July/August 2021
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The Hon. Ruby Kless Sondock, center, namesake of the Sondock Award, with 2021 recipient Susan L. Bickley and former recipient Lynne Liberato.
Jennifer Hasley and Bill Kroger present David J. Beck with the 2021 Justice Eugene A. Cook Professionalism Award.
Hon. Robert Schaffer and Jo Ann Schaffer.
Bill Kroger presents HBA Associate Executive Director Tara Shockley with an inaugural award named for her that will honor HBA staff for exceptional service.
Shannon Kroger and Richard Kroger
Former Cook Award recipients Kelly Frels and Harry Reasoner with Bill Kroger and 2021 recipient David J. Beck.
Bill Ogden and State Bar of Texas President-elect Laura Gibson.
50-Year Lawyers The HBA recognized lawyers who have reached their 50th year of practice in both 2020 and 2021. The 50-Year Lawyers pictured here joined us for the Annual Dinner.
50-Year Lawyer Bill Allen and spouse, 50Year Lawyer Hon. Patricia Lykos
50-Year Lawyer Hon. Eric Andell and Lynne Liberato
50-Year Lawyer William Book
50-Year Lawyer Jimmie Culpepper
Ethan Davis, Patty Davis and 50-Year Lawyer C. Michael Davis
50-Year Lawyer Stephen Dillard and Cathie Dillard
50-Year Lawyer Kelly Frels and Carmela Frels
50-Year Lawyer Robin Gibbs
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Connie Lawrence and 50-Year Lawyer F.B. “Ben” Harvie, Jr.
50-Year Lawyer Randal Hendricks and Jill Hendricks
Bobbi Kelly and 50-Year Lawyer John Kelly
50-Year Lawyer David T. Lopez and Romelia Lopez
50-Year Lawyer William Pannill and Molly Hammond
50-Year Lawyer Robert Pendergraft and Jane Pendergraft
50-Year Lawyer Michael Phillips
50-Year Lawyer George Rustay and Mary Rustay
50-Year Lawyer Hon. Ross Sears and Mariann Sears
50-Year Lawyer Jeffrey Skarda and Penny Cerling Skarda
50-Year Lawyer Edgar Smith
50-Year Lawyer Robert Steelhammer and Judith Steelhammer
50-Year Lawyer Gregory Thrower and Carole Thrower
50-Year Lawyer Dale Tingleaf and Nanako Tingleaf
50-Year Lawyer Alton Todd, far right, with C. Michael Davis and State Bar of Texas Executive Director Trey Apffel
50-Year Lawyer Michael Wood
50-Year Lawyers Courtney Young, 50-Year Lawyer J. Ron Young and John Young 34 July/August 2021
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2020 Emeritus Members Mr. William A. Allen Mr. Harry C. Arthur Mr. John W. Belk Mr. Robert David Bernstein Mr. William C. Book Mr. Thomas M. Braniff Mr. Richard B. Cagney, Jr. Mr. Bert Louis Campbell Mr. Richard Noble Carrell Mr. Lawrence B. Chapman Mr. Norman L. Chersky Mr. William G. Christian, Jr. Mr. Robert John Collins Mr. Joe Jeffrey Cone Mr. R. Richard Coston
Mr. C. Michael Davis Mr. James V. Derrick, Jr. Mr. James S. Dougherty Mr. James Matthew Douglas Mr. James Eloi Doyle Mr. Jerry Lynn Elmore Mr. Charles E. Fitch Mr. Wayne C. Fox Mr. Kelly Frels Mr. Robert W. Gibbs, Jr. Mr. Roger B. Greenberg Mr. George P. Hardy III Mr. Calvin Alfred Hartmann Mr. David T. Harvin Mr. George S. “Steve” Hebert
Mr. Isaac E. Henderson Mr. Max Hendrick III Mr. Randal Arlan Hendricks Ms. Ragna Henrichs Mr. Gary Edwin Lee Mr. James Michael Little Mr. Edward Lowenberg Mr. Bruce B. Mack Mr. Edward Mallett Mr. Thomas D. Manford III Mr. Barry H. Margolis Mr. Charles W. Matthews Mr. Malcolm S. Morris Mr. Michael C. Neel Mr. David L. Nelson
Mr. Rick Oshman Mr. William P. Pannill Mr. Michael Phillips Mr. Sheldon Edward Richie Mr. Robert N. Ross, Jr. Mr. George A. Rustay Hon. Ross A. Sears Mr. Jeffrey J. Skarda Mr. Barry H. Snowden Mr. Gregory Warren Thrower Mr. Ronald Edwin Tigner Mr. Daniel S. Trachtenberg Mr. Eliot P. Tucker Mr. Wallace W. White, Jr. Mr. William Dickinson Yale, Jr.
2021 Emeritus Members Mr. William B. “Ben” Adair Hon. Eric Gordon Andell Mr. David L. Baird, Jr. Mr. David R. Bires Mr. Gerald Mark Birnberg Mr. John G. Bissell Mr. Barry Allan Brown Mr. Raymond F. Burgert, Jr. Mr. Lowell T. Cage Mr. Douglas S. Craig, Jr. Mr. Jimmie Leonard Culpepper Mr. Stephen C. Dillard Mr. John H. Eaker Mr. Randall E. Evans Mr. T. Brooke Farnsworth Mr. William Sumpter Frazier Mr. Robin C. Gibbs
Mr. Jarrold Alan Glazer Mr. Larry A. Harman Mr. F. B. “Ben” Harvie, Jr. Mr. Ted A. Hodges Prof. Dannye Holley Mr. Daniel A. Hyde Mr. John Richard Jones Mr. John W. Kelly, Jr. Mr. David E. Kinnan Mr. Paul R. Lawrence Mr. James R. Leahy Mr. David T. Lopez Mr. William G. Lowerre Mr. John William Lowes III Hon. Patricia Rae Lykos Mr. William Westwood “Woody” McClellan
Mr. Michael Ray McGown Mr. Timothy E. McKenna Mr. Richard L. Moore* Mr. John Will Odam Mr. Terence L. O’Rourke Mr. David W. Pace Mr. Robert L. Pendergraft Mr. Dennis Peters Mr. John Hagaman Polk Mr. D. Bruce Pope Ms. Regina J. Rogers Mr. Alan G. Sampson Hon. Michael H. Schneider Mr. William E. Schweinle, Jr. Mr. George A. Shannon, Jr. Mr. William B. Sing Mr. William G. Small
Mr. Edgar Ashley Smith Mr. Gavin H. Smith Mr. Donald E. Snow, Jr. Mr. Robert Harold Steelhammer Ms. Anna E. Stool Mr. Robert G. Taylor II Mr. Dale M. Tingleaf Mr. Alton C. Todd Mr. Louis B. Trenchard III Mr. Charles Sydney Turet, Jr. Mr. Robert Charles Watts Mr. Sanford A. Weiner Mr. William T. Womble Mr. Michael Wade Wood Mr. J. Ron Young *Mr. Moore passed away in May 2021, but we honor his milestone achievement.
President’s Awards Bill Kroger presented the 2020-2021 President’s Awards to outstanding committee chairs during the HBA’s Annual Dinner. Bench Bar Conference Committee Rick Anderson, Roberts Markel Weinberg Butler Hailey PC Hon. Julie Countiss, First Court of Appeals Hon. Michael Gomez, 129th District Court Jennifer A. Hasley, Hasley Scarano, L.L.P. Hon. Lauren Reeder, 234th District Court County Law Library Committee Hon. Sonya Heath, 310th District Court Hon. Sarah Beth Landau, First Court of Appeals Maria Lowry, Law Office of Maria S. Lowry Diversity and Inclusion Committee Scott Ellis, Foley & Lardner Murtuza Hussain, Baker & McKenzie LLP Jacquelyn Rex, Smyser Kaplan & Veselka, L.L.P.
Fun Run Committee Brooksie Boutet, Shipley Snell Montgomery LLP Amber Morrison, Laredo Energy Cara Vasquez, DLA Piper LLP (US) Gender Fairness Committee Jason Beesinger, Joyce + McFarland LLP Catherine North Hounfodji, Morgan Lewis & Bockius LLP Tiffany Larsen, Harris County District Attorney’s Office The Houston Lawyer Editorial Board Anna Archer, U.S. District Court for the Southern District of Texas Implicit Bias Task Force Mindy Davidson, Houston Bar Association Hon. Genesis Draper, County Criminal Court at Law #12 Scott Ellis, Foley & Lardner LLP
Karen Hurwitz, Karen Hurwitz & Associates Hon. Latosha Lewis Payne, 55th District Court Shemin Proctor, Hunton Andrews Kurth LLP Hon. R.K. Sandill, 127th District Court Ashley Steininger, Houston Bar Association Law Week Committee Joseph Lawson, Harris County Robert W. Hainsworth Law Library Karen Lukin, Attorney at Law Charles Shaw, Harris County District Attorney’s Office LegalLine Committee Joyce Banks, Baker Botts L.L.P. Ellyn Josef, Vinson & Elkins LLP Mitch Reid, Hunton Andrews Kurth LLP Sarah Roark, Locke Lord LLP John Stavinoha, Bracewell LLP
Andrew Yeh, Norton Rose Fulbright US LLP President’s Awards for Exemplary Service to the Legal Profession and the Community Bill Kroger presented special awards to the deans of the three Houston law schools for their leadership in legal education and community engagement. Dean Michael F. Barry, South Texas College of Law Houston Dean Joan R.M. Bullock, Thurgood Marshall School of Law Dean Leonard M. Baynes, University of Houston Law Center
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Stronger Together:
An Interview with HBA President Jennifer Hasley Jennifer Hasley discusses the importance of family, professionalism, collegiality, and community as the pillars that support a strong bar association. Where were you born and where did you grow up? Jennifer: I was born and spent my early years in Tucson, Arizona. I have an older brother who is an executive at a pharmaceutical company, and we grew up in the 70’s enjoying roller skating, pinball, bowling, horseback riding, and backyard barbecues with one or two dogs in tow. We later moved around quite a bit, but I always considered Arizona home and returned for college and law school. I graduated from the University of Arizona, James E. Rogers College of Law (1993), and started my career at a law firm in Philadelphia after taking the Pennsylvania and New Jersey bar exams. I relocated to Houston with my parents and received a Master of Laws in Health Law and Policy from the University of Houston Law Center (1995) while waiting to take the Texas bar exam. Tell us about your family. Jennifer: I met my husband, Greg Hasley, a chemical engineer turned intellectual property attorney, while we were both studying for the Texas bar exam. It was a whirlwind romance, and we were married shortly after receiving our passing scores. Greg and I have always enjoyed our work and goodnatured banter over the interpretation of rules, the admissibility of evidence, and the best trial strategy. Eventually, we became law partners at Hasley Scarano, L.L.P., so we are together all the time and I still consider myself lucky to have found such a great guy who supports my legal career, bar activities, and my decisions, even when he thinks he knows better! Greg and I are immensely proud of our two children. Our son Hunter graduated from Columbia University with a Biomedical Engineering degree and is starting his second year of medical school at Hackensack 36 July/August 2021
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Jennifer wit
h her husba
Meridian School of Medicine in New Jersey. Our daughter Katie recently graduated from Washington University in St. Louis with a BS in marketing and entrepreneurship and is starting her Master of Science in Sports Management at Columbia University. How did you become interested in law as a career? Jennifer: I thought about being a doctor, an oceanographer, and even an astronaut before deciding to attend law school. My dad helped direct me toward the law. I have always been up for a good fight over things that I believe are important, and I guess he saw that would fit well with a legal career. Besides, he had suffered through enough bouts of my motion sickness to know that I was not well-suited for certain other career paths. What are your areas of specialty and with what firms have you worked in your legal career? Jennifer: After a few short stints at smaller firms focusing on workers’ compensation, personal injury, and medical malpractice cases, I spent almost nine years working for the Office of the Chief Disciplinary Counsel at the State Bar of Texas trying disciplinary cases in the state courts. In 2006, I formed Hasley Scarano, L.L.P. with my dad. I specialize in legal ethics and professionalism issues, grievance defense, attorney licensure and legal malpractice. Who were your mentors? Jennifer: There is no doubt that my primary mentors were my maternal grandfather and my parents, as I see their influence in almost everything I do. My grandfather, a pharmacist born and raised in New York, graduated from Columbia University and eventually relocated to Tucson where he opened his
nd Greg Ha
sley.
own full-service pharmacy well before the existence of the chain drugstores on every corner. His soda fountain counter was a neighborhood meeting place, with some residents arriving on horseback for supplies, cures, and conversation. He believed in the value of education, hard work, and public service. When he retired, he and his friends took an interest in the local court proceedings and regularly attended trials. They arrived early to have coffee with the court staff and watched the trials with a friendly wager on the predicted outcome. My grandfather would tell me about the most interesting cases which incorporated life lessons and a critical analysis of the proceedings. This was my first introduction to law, and his appreciation and respect for the justice system made me want to be a part of it. My parents have always been very supportive, encouraging, and proud of me. My dad, Victor Scarano, recently passed away. He was an incredible man who started out as an Air Force surgeon, later becoming a triple-board certified pediatric surgeon specializing in cardiac and thoracic congenital anomalies. In his early 50’s he attended law school and naturally focused on medical malpractice cases when he joined a firm in his hometown of Philadelphia. He found another intersection between law and medicine when he pursued a residency in psychiatry and a fellowship in forensic psychiatry at Baylor. He became one of Texas’ leading forensic psychiatrists for his last twenty-five years. He loved learning and excelled in everything, had an incredible sense of adventure, and believed that life was full of endless possibilities. My mom earned her bachelor’s, master’s, and doctorate degrees in nursing, and worked in a traditional hospital setting as well as on the regulatory side of healthcare. My mom was a superb role model as she
seemed to effortlessly balance family, education, and career. She forever changed my life when she gave up her career to care for my young children, so I could work long hours as a trial attorney. My mom loves people and people love her. It is ironic that she enjoys hearing me talk about my cases, as much as I enjoyed my grandfather’s recitations about his courtroom observations.
port is needed and to stay away from those issues that divide us or involve politics. Together, the lawyers of the HBA can accomplish great works. With this in mind, we developed our new slogan, STRONGER TOGETHER.
What do you see as the role of the president in the Houston Bar Association? Jennifer: My role as president involves several facets. The primary role Hunter, Katie , Greg and Je of the president of the nnifer Hasle y HBA is to help make the organization work for the members. The president and the HBA team cloud or over the internet. I can create, communicate, and implement the communicate easily through email and texts, existing policies and programs of the HBA. electronically file and serve documents, and There are many things to do, many decisions attend client meetings, mediations, and court to make, and many problems to help resolve proceedings in any city by using any web as we work together with our volunteers to conferencing platform. carry out the HBA’s plans. Second, the HBA president must look long term to be sure that What do you like to do outside of the the HBA and its ancillary organizations will practice of law? grow and adapt to the needs of the members Jennifer: When I am not working or voland the community in the future. Just as unteering for the HBA, I am devoted to my things change for the practice of law, it is family. For years, Greg and I loved chasing our obligation to look ahead and efficiently our kids around the country as they commanage our organization toward a successpeted in athletic events. We also love travelWhat do you think is the role of the ful future. ing together and have explored the parks, organized bar in society today? museums, theaters, and other sites all over Jennifer: I believe the purpose of organized What areas will you focus on during the United States and overseas. I am looking bar associations is to promote the interests your administration? forward to the final defeat of the pandemic of the legal community and to support the Jennifer: I have three primary focus issues: so we can return to traveling to many places local community. I think bar associations (1) celebrating members; (2) promoting that have been off limits this last year and a should focus on those issues where there is professionalism and pro bono; and (3) half. consensus that change or supexpanding our military and veterans programs. We will also be looking strategiAre you involved with other cally at the future by critically analyzing professional or community how our organization can continue to organizations? use lessons learned during the panJennifer: I am a member of several local, demic to serve members and the pubstate, and national law-related organizations lic more efficiently and economically. and have served on the Executive Committee of the Garland Walker Inn of Court for sevenWhat do you think has changed teen years. I have also spent many hours as most about the practice of law a volunteer and leader in various positions since you became licensed? of support for my children’s activities and Jennifer: The most significant schools. change has been the impact of technology on the practice of law. Is there anything else you would like to My early cases were characterized bring out in this interview that is imby building big paper files, sendportant to you? ing formal letters and mailings Jennifer: I am excited about the opportunity between counsel, using books to serve the HBA members as president this for research, and spending time year. I can see already just how fast time is waiting around the courthouse. passing, and the twelve months will go by Now, a briefcase has been requickly. No single individual can accomplish placed with a laptop that has the many things that we will accomplish every client file, legal statutes, HBA, I am together. In other words, we are STRONGER cases and other resources, e th h it ng w volunteeri . TOGETHER. and access to anything in the r o g in rk s o
How did you get interested in volunteering with the bar? Jennifer: Like many of our members, I joined the HBA primarily as a networking opportunity. As I volunteered for committees, I enjoyed the camaraderie and developed particular interests in many of the important activities provided to the legal community and the people in Houston. Over time, I chaired various committees such as Fee Dispute, CLE, and Professionalism, and eventually decided that I could have a larger impact on the HBA Board. While serving the last twelve years on the Board, I chaired other committees, sections, and the boards of the Houston Lawyer Referral Service, Houston Volunteer Lawyers, and the Dispute Resolution Center. At each stage of my HBA tenure, I have been able to see more and more the benefits that the HBA provides and how much work is required by the HBA volunteers to make the organization a success.
t w r say “When no y family,” Jennife m to d te o v de
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By Anietie Akpan
VETERAN SPOTLIGHT
The Honorable Erica R. Hughes
“When I see the term ‘veteran,’ I see someone who has helped [their] fellow mankind to the best of their ability, without thinking about it and consequences.” –Judge Erica R. Hughes
demeanor offenses by diverting veterans directly into VA treatment, reducing jail time, costs, and criminal recidivism, while improving mental health recovery and successful re-entry into the community. In her position, Judge Hughes oversees the management of the nspired by the discipline and service of her father—a Vietnam court program, and as a result has been able to witness how veteran who was stationed overseas and in Alaska— the Hontransformative the program can be. “Texas has the second bigorable Erica R. Hughes valiantly gest military population in the country,” she explained, “A lot served in the National Guard and of participants are homeless and the United States Army for four don’t have basic necessities. Most years. Over the course of her miliveterans won’t apply for service or tary career, she achieved the rank of assistance, and even when they Captain and was commended with do apply, the process is very long. the National Defense Service Medal, The Veterans’ Court assists with Global War on Terror Service Medal, paperwork so that they have the and Army Service Ribbon. necessary tools to get the services In a social and political landscape they need.” that has been catalyzed by a call for racial reckonIn managing Veterans’ Court, ing, Judge Hughes’ experience as a Black woman in the skills that Judge Hughes acthe military likely resonates with many women toquired during her military serday. “I had to combat the stereotype that women of vice are apparent: the discipline color should fit in a certain job description, rank, and order required to run a timely and physical capability,” she explained. “If you and effective court docket and the look at military enlisted [population] versus officer ability to multitask and navigate population, most minorities are enlisted. These are difficult problems, are just a few folks coming out of high school going straight into examples. She has impeccably the military. Officers—lieutenants, majors and so coupled this skill set with using forth—have to have a degree. So, when I would compassion as the touchstone of walk into a room with a JAG pin on my chest, her work to support fellow veterpeople were surprised.” Her story parallels that of ans. It’s nothing short of inspiraother Black women in the military, who have had tional. to combat both racial and gender biases: “You have In a community that is often to prove that you are qualified,” she shared, “prove The Honorable Erica R. Hughes discarded and forgotten, she has utilized her influence and exthat you can do the job at hand.” perience to humanize the brave men and women who have selfBut Judge Hughes’ unique journey from Army Captain to the lessly served this country. When asked what being a veteran bench has presented the opportunity for her to not only shatter means to her, Judge Hughes responded without hesitation, “The stereotypes; it has also equipped her with the compassion, expemain goal, to me, is service and helping individuals.” In looking rience, and leadership skills to best manage a project very close at her work both as a military veteran and a member of the legal to her heart: the Harris County Veterans’ Court. community, it is evident that Judge Hughes gracefully personiAs presiding judge of the Harris County Criminal Court at fies this very sentiment. Law No. 3, Judge Hughes adjudicates criminal misdemeanor cases. But in addition to her daily work in CCL #3, she currently Anietie Akpan is the Editor-in-Chief of The Houston Lawyer. serves as the first female judge of the Harris County Veterans’ She is staff counsel for the Metropolitan Transit Authority of Court. The mission of the court is to increase access to mental Harris County, Texas (METRO). health and addiction treatment for veterans with felony and mis-
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By Anietie Akpan
VETERAN SPOTLIGHT
Colonel Terri R. Zimmermann
“Our country is not perfect, but I am grateful for the freedom we have to point out the deficiencies and try to fix them.” –-Colonel Terri R. Zimmermann
bar exam, she went on active duty in the Marine Corps and the Basic School in Quantico, Virginia. Afterwards she attended the Naval Justice School in Newport, Rhode Island for a nine-week course learning military law where upon graduation, she was certified as a Judge Advocate and began practicing military law.1 father with a distinguished and decorated military caAfter leaving active duty in 1996, Colonel Zimmermann transreer. A loving mother who gave endless support to evferred to the Marine Corps Reserve and began practicing with ery endeavor her daughher father, Jack Zimmermann, in Houston. There, she learned ter undertook. With a how to defend not only civilsuccessful law practice, ians in state and federal courts, robust community engagement and but also servicemembers in her own highly decorated military military courts. career, Colonel Terri R. ZimmerAs military experience apmann accounts her parents as the pears to collectively provide foundation of all her achievements, key skills and sensibilities, encouraging her to give back to the Colonel Zimmermann says the country and community. lessons and skills she learned “Neither of them were very happy about me joinwhile serving have transferred ing [the military] when I told them (after the fact),” to the practice of law: “LearnColonel Zimmermann shared with me, “They didn’t ing to not only take direction want their ‘little girl’ to crawl in mud under barbed from those with more seniorwire or worse, be on the receiving end of gunfire[.]” ity and experience, but to think But after Colonel Zimmermann completed Officer on my own and communicate Candidate School and received her commission, clearly with others are skills they couldn’t have been prouder: “They are two of that I acquired early in my milimy strongest supporters,” she said, “along with my tary career and still work on husband, who was an enlisted Marine and law ento this day,” she shared. “They Col. Terri R. Zimmermann forcement officer for over thirty years.” are extremely useful in my law practice because there are new A shareholder at Zimmermann Lavine & Zimmermann, P.C., things to learn every day. ...Teamwork also is critically imporColonel Zimmerman has dedicated her life to advocating for tant – it takes a team to succeed in just about every endeavor. Bemilitary servicemembers and veterans both in and out of the ing able to lead, delegate to, and learn from others exponentially courtroom. In 1989, she joined the Marine Corps (“Because I increases the chance of success.” wanted the challenge of being part of ‘the best of the best.’”), and Colonel Zimmermann is also involved in several military-and still serves as a drilling Reservist today, with plans to retire in veteran-based community initiatives such as veteran treatment 2023 (“When they make me!”). Over the course of her military courts to address combat-related post-traumatic stress disorder career, she was commissioned a Second Lieutenant in 1990, and and traumatic brain injuries. She was the first attorney to chair then was promoted to First Lieutenant, Captain, Major, Lieutenthe State Bar of Texas’ Military and Veterans Law Section while ant Colonel, and then in 2012 she became a Colonel. A decorated on active duty, and currently serves as the chair of the Veterans officer, Colonel Zimmermann has earned numerous commendaAssistance Committee and Texas Criminal Defense Lawyers tions, including but not limited to, the Navy and Marine Corps Association and vice-chair of the Military Law Committee and Commendation Medal, the Meritorious Service Medal with Gold National Association of Criminal Defense Lawyers. Star, the National Defense Service Medal with Gold Star, the SeAnd despite its recent politicization, it is Colonel Zimmerlected Marine Corps Reserve Medal, and the Global War on Termann’s belief that the military is an institution that beautifully ror Service Medal. represents a “melting pot” in our society, providing opportuAfter graduating from law school and passing the Maryland
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nities for men and women of all backgrounds, ethnicities, and belief systems to learn, work, and grow together. “We all have strengths and weaknesses,” Colonel Zimmermann explained, “and it is the effective commander who understands his or her people and leads by maximizing the former and minimizing the latter. While some women are not as physically strong as some men, many are. And as more women prove their abilities, both physical and mental, their value to our armed forces will only be more acknowledged and appreciated. Like everyone else, female servicemembers should strive to be competent at their jobs and treat people with kindness and respect.” Colonel Zimmermann has dedicated her personal and professional life to advocating the needs of servicemembers and vet-
erans. She has (and continues to) set an example to men and women alike, as well as the next generation of young military members who defy cultural stereotypes and have dedicated themselves to something bigger than themselves. Anietie Akpan is the Editor-in-Chief of The Houston Lawyer. She is staff counsel for the Metropolitan Transit Authority of Harris County, Texas (METRO).
Endnotes
1. Military courts only hear criminal cases. However, there are military lawyers who practice other things such as labor law, environmental law, and “legal assistance” which includes some uncontested family law, landlord-tenant, and consumer protection issues.
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SECTION spotlight
Juvenile Law Section Update:
T
Advocating for Juveniles Through COVID-19
The Houston Lawyer
By Liz Furlow
his year, COVID-19 has made much of the Juvenile Law Section’s practice remote, and the majority of inperson trials last occurred in March 2020. The juvenile detention center was hit hard with COVID-19 infections, so the detention court went fully virtual and remains so to date. Nonetheless, some virtual aspects proved beneficial to the children that Section members represent, as some of those who would have been sentenced to prison or a lockdown facility stayed home, attended remote school, followed their release conditions, and turned their lives around. Despite the transition, elements of the practice still required in-person participation. Juveniles who enter a plea bargain must provide a thumbprint and sign a judgment in person, so, throughout COVID-19, juvenile advocates continued to meet in person with the children they represented to walk them through those processes. Though COVID-19 prevented the Section from holding its annual training seminar, the Section is determined to place the Department of Family Protective Services training seminar back on the books this year, along with its annual CLE program. The CLE program provides a full 18 hours of CLE in a day-and-a-half, all local to Houston, for $150. A low-cost, local seminar reinforces the nuts-and-bolts strategies and tools that Section members use on a day-to-day basis. The topics of the CLE include everything from certifications, expert testimony, and detention hearings to general trial knowledge and advice, and legislative and case updates. Typical speakers are practitioners, judges, and representatives from various child-related institutions, such as Texas Children’s Hospital, for injury-tochild cases. The section has continued to remain involved in recruiting new attorneys to the practice. The Honorable Dena Fisher, As-
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sociate Judge for the 315th Juvenile Court, started the Juvenile and Children’s Advocacy Project of Houston at the University of Houston, where law students can work on records sealing and shadowing attorneys who practice in the field. Section members also work with various law firms’ young associates in pro bono matters, including juvenile expunction projects. Ryan Mitchell, the past chair of the Section, is a sole practitioner focusing on Child Protective Services and delinquency work who formerly worked at the district attorney’s office for over six years and was a juvenile prosecutor for three years. Hans Nielsen, the current chair of the Section, is a sole practitioner focusing on criminal defense of juveniles. He is the former Chief Prosecutor for two juvenile district courts and is Board Certified in both Criminal Law and Juvenile Law. Ryan and Hans will continue to work together this year to lead the Section to achieve its goals. The Section’s forty members, who include approximately eight board-certified attorneys, are also primarily sole practitioners. The main goal of the Section is to foster comradery and idea-sharing between juvenile law practitioners and to provide members with the resources they need to excel in their work. For that reason, the Section keeps dues low, at $25, so that no one is cost-barred from joining. That helps create a community where juvenile law practitioners learn and grow in their practices together. If you are interested in becoming a member of the Juvenile Law Section, or for more information about the programs planned for this year, please visit www.hba.org/juvenilelaw. Liz Furlow is a litigation associate at Baker Botts LLP. She is a member of The Houston Lawyer editorial board.
A Profile
in p r o f e s s io n a l is m
A
The Hon. Edith H. Jones Judge, U.S. Court of Appeals for the Fifth Circuit
s their final step to being admitted to the practice, Texas lawyers take an oath that, in part, commits us to defend the Constitution of the United States. How often are we reminding ourselves of the oath during this traumatic political and social period? An oath is a solemn undertaking of religious origin. Violating one’s oath to testify truthfully is the ground for criminal punishment. Should our professional oath be taken more lightly than that of witnesses? With the oath’s solemnity in mind, we must consider carefully what it means to defend the Constitution of the United States. The United States Constitution is the finest document in human history crafted to enable citizens to direct the course of their government and lives. Its structures of Federalism and checks and balances empower the government where needful while restraining the politicians’ impulse to amass power. Ordered liberty is the Constitution’s goal; unprecedented prosperity has been its gift through generations. Slavery and its aftermath blighted progress, to be sure. But the Constitution survived a Civil War to end slavery, other wars and conflicts, and the 9/11 attacks, while adapting to political and economic challenges. The legal profession’s efforts have been indispensable to secure our Constitutionally-guaranteed freedoms. Yet today, a shocking number of public officials, lawyers, and legal scholars deride and would erase significant portions of the Constitution. What the detractors say and write, for example, to undermine First Amendment free speech and religion is very clear. Our oath as lawyers calls us to defend the Constitution. To do this, we must know the Constitution, study how it protects liberty and limits government, and respond to its attackers. “The only thing necessary for the triumph of evil is for good men to do nothing.” —Edmund Burke.
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A Profile in Professionalism:
Law in the Family
The Houston Lawyer
A
The Frels Family
of my fondest memories and engendered a love of public policy and n interest in law and public policy has been a common debate. In many respects being a good father is about establishing bond in the Frels family for many years. Kelly Frels, who connections with your children. For my father and me, the law has now serves of counsel at Bracewell LLP, is a former presiprovided a wonderful bond. dent of the both the Houston Bar Association and the State Bar of Texas and is a forCarmela Frels: On a trip to Disney mer managing partner at Bracewell. when Jonathan was two years old, he He has been an attorney for schools, began jumping on the hotel bed. We community colleges, universities, told him we didn’t do that at home, and other public bodies for more and it was not appropriate in a hotel. than 45 years, and was one of six He began to jump on the floor. No, we lawyers who founded the State Bar’s explained, that disturbs the people’s School Law Section. Kelly chaired room under you. So, he began to jump the Texas Center for Legal Ethics affrom the bed to the floor. “What did ter his State Bar Presidency. Carmela we just say?” Jonathan replied, “You Frels served as the 50th president of told me not to jump on the bed, and the HBA Auxiliary and as an ex of- Jonathan, Carmela, Kelly and Catherine. not to jump on the floor. But you did not say I couldn’t jump from ficio member of the HBA Board during her term, and in many other the bed to the floor.” We knew we might have a lawyer on our hands. advisory roles in the HBA and Texas Bar Auxiliaries. Daughter CathState Bar conventions played a big role in our lives. During my Auxerine Frels is a leadership development facilitator/coach and performiliary presidency, a committee planned spouse activities for the 1997 ing artist in Austin. Son Jonathan Frels, a former Deputy Attorney SBOT Houston convention. In 2003, Kelly and I chaired the State Bar General for legal counsel at the Texas Attorney General’s Office, is a Convention in Houston, a formidable challenge that required funding partner a Bracewell LLP practicing in the areas of public law, public adjustments and format changes. finance, and legislative matters. HBA President Jennifer Hasley cites During Kelly’s year as State Bar President in 2004-2005, he had a the Frels family as a perfect example of the type of professionalism stroke, but soldiered on to fulfill his duties. Driving him for months, I and collegiality that the legal community needs and as her inspiration heard all his telephone conversations, helped him rewrite documents, for service to the HBA. and facilitated their delivery. He attributes finishing that leadership year to motivating his recovery. Jonathan Frels: I am fortunate to have a father who through his law I’ve made many friends throughout my Auxiliary years, and I treapractice has been deeply engaged both in the community and the sure the relationships developed with both lawyers and spouses in evolution of public education in Texas. Throughout my childhood, the HBA and the Auxiliary, with members of the Texas Lawyers AuxI had a front row seat to debates on issues including the desegregailiary Board, and with peers during our many years of State Bar voltion of schools, immigration, transgender restroom use, and prayer unteerism. Those relationships are so important. in schools. The accessibility of and public discussion surrounding these legal issues meant that the law, and more specifically my father’s Kelly Frels: Being the senior school lawyer at Bracewell and among practice, formed a prism through which I grew up viewing the world the oldest school lawyers in the state, along with Carmela I was able and a connection between father and son. The most important lesto develop strong relationships with many younger lawyers. I stressed son, though, was one that my dad repeatedly emphasized. In order to their professional growth, particularly as they represented school dislearn how to be an effective advocate or policy maker, I had to learn tricts in public matters like the Houston desegregation case. Carmela how to “disagree without being disagreeable.” may hold a record for attending and participating in client functions, One of our cherished family traditions was sitting down to nightly and Houston and State bar meetings. family dinners. These gatherings frequently involved lively debates After serving as a Deputy Attorney General, Jonathan returned to on the legal issues my dad was facing in his practice and the political the private sector and later became a partner at Bracewell where he forealities that surrounded them. Often, these very same issues were cuses on public law, public finance, and state legislative matters. Jonaplaying themselves out in real time at my school, which lent a difthan and I have had the satisfaction of practicing together—a reward, ferent perspective to the discussions. Mom often remarked that we and reminiscent of the legal discussions at the family dinners. should file briefs before dinner. Those evenings together form some 44 July/August 2021
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A Profile in Professionalism:
Law in the Family
A
The Hanen/Dillard Family
The Houston Lawyer
vided refreshments to the volunteers, and my daughter designed n interest in public service has been a common thread the volunteers’ t-shirts and helped keep the worksite clean. Since for the Hanen/Dillard family. They are one example out the HBA started that program, the HBA has built over 20 houses. of many HBA families that have made public service a So, whether it is volunteering for a Houston Volunteer Lawyer’s family matter. Andy Hanen is a former HBA President, case or swinging a hammer to creformer director of the ate a home for someone—these State Bar, and a former Chair of are the kind of the activities that the Houston Volunteer Lawyers. provide meaning and context to He was a trial lawyer in Houston our daily work in the law and they for almost twenty-five years and can be just as meaningful for your in 2002 was appointed as a United family. States District Judge for the Southern District of Texas—a post he Diane Dillard: Sometimes in the still holds. He has been recognized practice of law, you find a need and by the Texas Bar Foundation as volunteer to fill it; sometimes the the state’s Outstanding Jurist and, need finds you. In the late 1980s, most recently, by the alumni assothe AIDS crisis generated a high ciation of Baylor University for his level of fear because at the time years of distinguished public serDiane Dillard, Kelly Hanen, and the Hon. Andy Hanen. little was known about its cause or vice. Diane Dillard, a board certihow it spread. Andy and I were approached by friends in Housfied commercial real estate attorney, is the former chair of the ton’s gay community to help HIV positive individuals with their Real Estate Probate Trust Law Section of the State Bar. Diane is a unique legal problems. Many of these individuals were being frequent author and speaker at continuing legal seminars sponfired from their jobs and evicted from their homes because of sored by numerous law schools and bar associations. In 2015, she their medical status. They not only needed legal representation became the first woman to receive the Distinguished Real Estate in those matters, but they also needed wills and medical powers Lawyer Lifetime Achievement Award, the highest honor awarded of attorney. At the time, Andy was a HYLA officer and between by the Real Estate Probate Trust Law Section of the State Bar of us, we were able to mobilize a number of very dedicated volunTexas. She is currently a director on the Texas Board of Legal teers. Being a part of creating and then chairing the first AIDS Specialization and a Regent of Baylor University. Their daughter, Committee to provide free legal services for AIDS victims gave Kelly Hanen, is an associate at Baker Botts LLP and is Presidentme a richer understanding of human nature, a realization that Elect of the Houston Young Lawyers Association. She serves on life is fleeting, and an urgency to help others when and where I the board of the Houston Volunteer Lawyers and as a chair of the can. HBA’s Membership Committee. Judge Andy Hanen: Perhaps because I married a lawyer, and now have a daughter that is a lawyer, we have made our pro bono efforts a family affair. It has been fun, and our family has probably received many more benefits than those we helped. I think these projects can be some of the most memorable aspects of the legal practice. For example, I have tried countless cases and sat on innumerable committees, but none of those experiences gave me the same sense of satisfaction I got from participating in the building of the HBA’s first two Habitat for Humanity houses. I still remember everyone who participated on those two projects and still have a photograph with the recipient of the first house in my office. It was a team effort by the HBA and a team effort by my family. I worked construction (heavily supervised), my wife pro46 July/August 2021
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Kelly Hanen: When you are the only child of two lawyers, your parents drag you to all sorts of legal functions. Some of my first memories are of me running through the halls of the HBA office and working on the Habitat for Humanity house. At the time, I thought that was all a part of being an attorney. Now that I am a lawyer myself, I realize that pro bono work and other acts of public service are not required. Rather, lawyers choose to spend what little free time they have in service to others. My parents set that example for me and I try to live up to it, even when the stress of billable hours and partner/client satisfaction looms. Our family is not unique in this regard as many HBA members (and their families) are dedicated to service above and beyond their daily legal practice.
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C.
Jordan, Lynch & Cancienne PLLC Kane Russell Coleman & Logan PC Kean | Miller LLP Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. Liskow & Lewis McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP
Sorrels Law Spencer Fane LLP Sponsel Miller Greenberg PLLC Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Yetter Coleman LLP Firms of 50-99 Attorneys Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. BakerHostetler LLP Brown Sims, P.C. Greenberg Traurig, LLP Haynes and Boone, LLP
Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
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OFF THE RECORD
A Lesson in What Really Matters:
I
The Houston Lawyer
By Andrew Pearce
Brittany Scheier
n March 2018, Brittany Scheier was a 27-year-old finishing her last semester of law school. So, when she woke up in the middle of the night having lost function on the right side of her body and most of her vision, it was nearly impossible to imagine what might have caused it. Brittany had no symptoms, no family history. In fact, earlier that week, she had celebrated her birthday and, when the symptoms first began, Brittany thought they were likely just the result of her earlier birthday celebration. But when she lost the ability to move her right arm, then her leg, followed by the loss of vision, Brittany called out to her two fellow 3L roommates, who carried Brittany to a car and rushed her to the emergency room. Yet even at the hospital, the cause of Brittany’s worsening condition was unclear. Based on her age, the doctors initially assumed she was on drugs. Brittany’s first doctor ordered a CT scan, which did not show anything, and the hospital was pre- Brittany Scheier paring to release her until a second doctor ordered an MRI. After five hours, the doctors – and Brittany – finally had an answer. Brittany had suffered a stroke. And although they had an answer, the ordeal was only just beginning. Brittany would learn that she had developed a rare syndrome called thalamic pain syndrome (TPS) that can occur following a stroke. That diagnosis was followed by numerous medications—as many as 20—as well as countless doctor appointments and vision, physical, occupational, and speech therapy. Three years later, Brittany no longer needs the medications, she successfully graduated law school and passed the bar exam, and she is currently a corporate associate in the Houston office of Kirkland & Ellis LLP. Earlier this year, Brittany was recognized as a 2021 Real Woman Ambassador by the American Heart Association. Looking to the future, Brittany is writing a book about her
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story as a survivor. Most importantly, she wants the book to be relatable to others who might face the challenges of a stroke survivor, which included depression, changing relationships, and even having to learn to drive again. As for today, Brittany hopes that others might learn from her experience because education is the key. For example, be aware of F.A.S.T., which is an acronym for the classic stroke symptoms—Facial drooping, Arm weakness, Speech difficulties and Time. As lawyers, there is no question that we often fail to prioritize our health, but Brittany stresses the importance of being active, eating healthy,
and the big and small ways she focuses on heath. Yet even modest changes to diet and lifestyle can lower risk of heart disease and stroke by as much as 80%. For example, Brittany’s favorite activities are biking around Houston or attending workout classes but, when she is short on time, she will still try to walk outside for 20 minutes (without her work phone) or meditate in the mornings before the day gets too hectic. The biggest lesson is that she tries, and every lawyer should try, to do something active every single day. “I hope attorneys take this as an extreme case, but as a warning not to let your health go,” said Brittany. “That, I hope, is the biggest takeaway.” Andrew Pearce is a shareholder and the litigation group chair at BoyarMiller. He is Off the Record editor for The Houston Lawyer.
Committee spotlight
Habitat for Humanity:
T
Building Homes in Challenging Times
By Deanna Markowitz Willson and Tara McElhiney
he past year has held challenges for all of us, but CoOver the course of the HBA Habitat Committee’s partnership vid-19 has been particularly hard on those in need of with Houston Habitat, the HBA has worked with Houston Habiaffordable housing. The HBA’s Habitat for Humanity tat to dedicate twenty-two houses to deserving Houston families. Committee partners with Houston Habitat for HuEach year, the HBA Habitat Committee has two primary objecmanity to help provide safe, affordable housing to tives. First, the Committee raises the funds necessary to build those who qualify. These efa Habitat home from the forts are particularly imporgenerosity of HBA Sections, tant today, as rising prices in law firms, legal organizathe housing market and the tions, and individual donors. economic upsets of Covid-19 Second, the Committee cohave placed affordable housordinates build days during ing out of reach for many which members of the HousHouston residents, who ton legal community volunfound themselves living in teer to participate in the acunsafe, overcrowded, or subtual measuring, sawing, and standard housing or paying hammering required to build more than 30% of their gross the home. income on rent. Typically, volunteers will The Covid-19 pandemic Par and Nya Aye, with one of their children, at the dedication of their Habitat home, each sign up to work one day only exacerbated the need for the 23rd home built through the efforts of the HBA Habitat for Humanity Committee. on the house. The build takes affordable housing in the aftermath of Hurricane Harvey. By place over several consecutive weeks, with one or two build days building homes and providing financial assistance to qualified scheduled every week, and fifteen to twenty volunteers pitching applicants, Houston Habitat works to meet the needs of lowin together on each build day to make a home. That means there income Houstonians, provides a foundation for future success, are plenty of opportunities for individuals to volunteer throughand helps local residents overcome what we all recognize to be out each project. Firms and companies that donate at the Gold unparalleled current events. level are invited to select their own build day as a community Habitat for Humanity not only assists in providing affordable outreach and volunteer opportunity for their employees. housing for a community but also prepares future homeowners In 2020, the ubiquitous challenges posed by Covid-19 also crefor success. Habitat homeowners receive financial guidance and ated hurdles for our work. The construction of the twenty-third home maintenance training. They build their homes alongside home, originally scheduled for the Spring of 2020, was delayed volunteers and ultimately purchase their home with an affordfor weeks, and then months, due to stay-at-home orders and Coable mortgage made possible by Houston Habitat. Houston Habvid safety protocols. We plan on building the twenty-third home itat has witnessed how the stability of homeownership is transin the Fall of 2021. We also began our efforts to fundraise for a formative for the Habitat families, providing the foundation to new Habitat home. We are still in the process of collecting donasave more, invest in education, live in a healthier environment, tions and will kick-off a large fundraiser on December 1. We plan and improve financial security. Affordable housing empowers on building in the Spring of 2021. Therefore, this coming year these homeowners to build a better future for themselves and holds exciting changes with more than one build scheduled for the their families for generations to come. same bar year. The HBA has partnered with Houston Habitat since 1998. Continued on page 52 thehoustonlawyer.com
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LEGAL TRENDS
Litigants Can Now Claim Attorneys’ Fees Under Chapter 38 from Limited Liability Companies, Thanks to Texas Legislature Amending Restrictive Statutory Language
F
The Houston Lawyer
By Kirsten Vesel
or years, courts have permitted an award of attorneys’ fees in certain civil cases from individuals and corporations but denied the award of attorneys’ fees from limited liability companies for similar cases. The Texas Legislature has recently amended Texas Civil Practice and Remedies Code section 38 to correct the ambiguity that limited claimant’s recovery from certain entities. In general, Texas only allows a party to recover attorneys’ fees from an opposing party in litigation when specifically provided for in a contract or by statute. One such statute that allows recovery of attorneys’ fees for certain claims is Chapter 38 of the Texas Civil Practice and Remedies Code. Chapter 38 provides “[a] person may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs,” if the claim is for certain enumerated claims. The term “corporation” created an interpretation problem for many courts. Several Texas appellate courts allowed limited liability companies to recover attorneys’ fees under Chapter 38. See, e.g., RM Crowe Prop. Services Co., L.P. v. Strategic Energy, L.L.C., 348 S.W.3d 444, 452 (Tex. App.—Dallas 50 July/August 2021
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2011, no pet.). However, several courts section 1.002 of the Texas Business Orgahave since interpreted the plain language nizations Code. Recovery of Attorney’s Fees of Chapter 38 does not include limited liin Certain Civil Cases, 2021 Tex. Sess. Law ability companies. See, e.g., TEC Olmos, Serv. Ch. 665 (H.B. 1578). The new law LLC v. ConocoPhillips Co., 555 S.W.3d 176, takes effect for lawsuits filed after Septem188 (Tex. App.—Houston [1st Dist.] 2018, ber 1, 2021. pet. denied); Varel Int’l Indus., L.P. v. PetThis change allows a claim for attorneys’ roDrillbits Int’l, Inc., No. 05-14-01556-CV, fees under Chapter 38 against any organi2016 WL 4535779, at *7 (Tex. App.—Dalzation whether a “corporation, limited or las Aug. 30, 2016, pet. denied) (mem. general partnership, limited liability comop.); Alta Mesa Holdings, L.P. v. Ives, 488 pany, business trust, real estate investment S.W.3d 438, 455 (Tex. App.— trust, joint venture, joint Houston [14th Dist.] 2016, pet. stock company, cooperative, denied). association, bank, insurance This interpretation caused company, credit union, savinconsistency in the ability to The Texas ings and loan association, recover attorneys’ fees merely Legislature has or other organization, repredicated on the type of defengardless of whether the orrecently amended dant: if the plaintiff had sued an ganization is for-profit, nonTexas Civil Prac- profit, domestic, or foreign.” individual or corporation, they could recover attorneys’ fees tice and Reme- TEX. BUS. ORG. CODE § under Chapter 38; if the plaindies Code section 1.002. Another affect of this tiff had sued a limited liability amendment is the timing 38 to correct the of claims. Many potential company, attorneys’ fees were ambiguity that plaintiffs are likely to hold not recoverable under Chapter 38 for the same claim. limited claimant’s off on filing claims against Since providing the mechaan LLC until after Septemrecovery from nism for creating a limited liber 1, 2021 to take advancertain entities.” ability in 1991, the Texas Legistage of this new access to lature has passed amendments Chapter 38 attorneys’ fees. to apply concepts applicable to corporaUltimately, the change is a reasonable tions to limited liability corporations. For one that follows the Texas Legislature’s example, in 2011, the Texas Legislature trend of directing certain corporation added Texas Business Organizations Code principles as applicable to limited liability section 102.002 to apply corporation “veil companies. The new Chapter 38 defines piercing” principles to limited liability the exact types of entities from which a companies. Applicability of Certain Laws plaintiff can recover attorneys’ fees, effecGoverning Corporations to Limited Liability tively providing equal opportunities for Companies, 2011 Tex. Sess. Law Serv. Ch. plaintiffs to recover without respect to the 25 (S.B. 323). type of entity. Likewise, the Texas Legislature rectified the inconsistency in application of Chapter Kirsten Vesel is an associate in Baker 38 by passing House Bill 1578 which was Donelson Bearman Caldwell & Berkowitz, signed by Governor Greg Abbott on June PC and a member of the Advocacy 15, 2021. The bill revises Chapter 38 elimiDepartment. She advises clients on a nating the term “corporation” and instead wide range of litigation matters, including providing “[a] person may recover reasoncommercial, construction, energy, able attorney’s fees from an individual or environmental, insurance, government organization” defining “organization” by investigations, and professional liability.
‘‘
Media Reviews
Two Thumbs Up for Garner’s Guidelines for Drafting & Editing Contracts By Bryan A. Garner West Academic Publishing, 2019 Reviewed by Avi Moshenberg
G
arner has done it again. The legal-writing guru— renowned for his leading works on writing in plain English, like The Winning Brief, The Redbook: A Manual on Legal Style, and Making Your Case: The Art of Persuading Judges (which he cowrote with the late Justice Scalia)—recently authored a book on drafting and editing contracts. The work is titled Garner’s Guidelines for Drafting & Editing Contracts, and it’s an excellent read for those looking to add a powerful tool to their lawyer toolbelts. Whether you’re a seasoned transactional attorney, a general practitioner, or a litigator who drafts settlement agreements, Garner’s Guidelines for Drafting & Editing Contracts offers useful tips to hone your contract drafting. Let’s be honest. Too often, lawyers recycle antiquated contract forms with archaic legalisms that many lawyers don’t even understand. But does doing so best serve our clients, who will be legally bound to perform under these agreements? Garner doesn’t think so. And his tips and strategies for drafting clearer contracts offers worthy solutions to the problem. Drawing on over 30 years of experience in teaching contract drafting and in consulting on contracts with companies throughout the world, Garner provides these tips and strategies in 150 sections
that explain how to prepare contracts that are precise and readable. These tips and strategies span the spectrum of useful advice from the types of words the contract should deploy, to the tense it should be written in, to how sections should be numbered, to how sentences should be organized, and even which fonts are ideal. And all throughout, Garner gifts readers with not only his practical advice but also examples from countless contracts to illuminate how his tips can help. And in classic Garner fashion, these tips and strategies are structured into short and simple sections designed to be read independently. Practitioners can jump to the topic they want to learn about, or refresh on, without having to read the book from start to finish. The book has six overarching sections. The first explores the fundamental principles of contract drafting, focusing on accuracy, clarity, conciseness, an effective numbering system, and standard sections and clauses. The second section is on contract formatting and focuses on fonts, spacing, emphasizing text, and general document appearance. The third section covers the best general conventions—like how to name the parties, what contract date to use, what tense and voice to apply, how to avoid confusing positive and negative sentences, and shunning the bedeviled term shall. (For years, shall has drawn Garner’s scorn because of the confusion it creates.) The fourth section focuses on structuring the contract, including how to handle key terms and definitions and when to use tables of contents. The fifth section addresses syntax, offering readers ways to structure their sentences to maximize impact and understanding. And the sixth section teaches what types of words your contracts should contain—and avoid. Simply put, Garner’s Guidelines for Draft-
ing & Editing Contracts is an unparalleled field manual that’s saturated with helpful ways to improve your contract drafting. If you’re looking to import proven wisdom to improve your practice, this book is a must read. And for that reason, this book earns four gavels. Avi Moshenberg is a senior commercial and employment litigator with McDowell Hetherington and a member of The Houston Lawyer editorial board.
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LITIGATION MARKETPLACE
Office Space HOUSTON/ENERGY CORRIDOR I-10 & 1155 Dairy Ashford Established law firm with estate/ trust planning, probate/trust administration, elder law and business practice seeks to lease large 12x15 window office in friendly, beautiful office suite, with reception area. Office easily accommodates credenza, full size desk, two client chairs, two 5-drawer lateral files. Telephone, WiFi, high speed Internet, copiers/ scanners, fax. Kitchen with microwave and coffee. Notary available. Access to conference rooms on scheduled basis. Free covered parking for attorney and clients. Possible overflow work subject to attorney availability, skill and experience. $895/month, quarterly term. Steve 713-553-0732 (cell) steve@mendellawfirm.com. HOUSTON—ONE GREENWAY PLAZA, SUITE 100— Beautiful Class A space available for sublease. Great Multi-Lawyer/Corporate/Professional Suite-1st floor, 15 ft+ ceilings, security, garage/covered parking, digital phone/voicemailemailed/fax/high-speed-internet/ cable system, 2 conference rooms, file room, front full-time bilingual receptionist, kitchen area, walk to restaurants-food court/gyms/Tony’s/ Starbucks/Double Tree-Hilton. At present, five well established law firms lease at this location... being around other attorneys is also a great way to start a new practice. Currently available: 2 large window offices, 1 large interior office, and 2 furnished secretarial spaces, as well as virtual space! Call Lawrence at 713-650-1222 or email: legal@texas.net.
HOUSTON MEMORIAL OFFICE SUITES Legal offices available on Westview Drive between Wirt and Antoine. Shared receptionist, conference room, and break room. Rent includes all utilities, internet, phone, parking, security, cleaning service, and office maintenance. For details contact: jacquesb@marksfirm.com. 4 executive offices & secretarial space available for lease starting July 1. Historic building in Woodland Heights completely renovated in 2021. New: kitchen, windows, appliances, phone system, bathrooms, paint, wiring/hi-speed internet cabling, HVAC, refinished hard wood floors. 12 person conference room with flat screen TV. Security system. Shared receptionist. New parking lot & landscaping coming soon. Call Lee Thweatt at 713-600-4710 for appointment. Position Available
San Antonio/Hill Country AV Rated Nine Lawyer Estate Planning and Probate Law Firm seeking an associate lawyer with substantial probate experience (preferably 5 years or more) to head up the firm’s probate division. The well-established firm has an extensive list of clients and a strong referral base. The firm has a substantial Hill Country practice with a satellite office in Kerrville. The ideal candidate will be a selfstarter with strong communication and organizational skills. He or she should be technically proficient in probate, trust law, with experience in real property law. The position offers competitive compensation commensurate with experience, retirement and health insurance benefits e a diverse with the billable hour Austin, TXbody - We have of 4,600students rentable as well as reasonable square feet of office space WITH a requirements. This is an excellent ity to HUGE obtain an exceptional legal education. RATE DISCOUNT AVAIL- opportunity for someone interested ABLE NOW! Across the street from in living in a wonderful and growollege of Law Houston one ofPUthe most widely diverse student the Capitol. NEWserves ADVANCED ing part of Texas while advancing RIFICATION AIR SYSTEM AND his or her career. Interested canation and maintains close to a 90% ultimate bar passage rate. NEW LED LIGHTING. It has 9-10 didates should submit a resume ntury, South Texas College of Law Houston has educated successful, to private offices, open work areas, ggaedke@caglaw.net. ttorneys from diverse backgrounds, who now serve our community, and a large shared kitchen. Garage d 13 countries around the globe. parking and furniture are available The Houston Lawyer
23 we’ve remained true to our mission:
too. Contact Patrick; 915-373-0488 pfinnegan@texcon.org. 52 July/August 2021
www.stcl.edu/hire
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For Sale 281-LAWYERS & 972-LAWYERS Metro Houston & Dallas phone #s Branding Opportunity for Law Firm Gary Fusfield, Esq: 972-529-9377 Member State Bar of Texas (1980) Principal Office: Highland Park, TX Law Firm Acquiring Kiefaber & Oliva LLP is KIEFABER & OLIVIA LLPS IS INTERESTED IN ACQUIRING A LAW FIRM We are eager to hear from principals of law firms that meet all of the following criteria: •Sizable revenue (an average of at least $1M of top line revenue over the last 5 years); •Demostrated consistent earning power (we are not interested in future projections); •Business earning good returns while employing little or no debt; •Management and staff in place; •Simple practice; •An offering price (we don’t want to waste our time or that of the seller by talking, even preliminarily, about a transaction when price is unknown). We can promise complete confidentiality and a very fast answer as to whether we’re interested. Please send correspondence to Zachary Oliva, Managing Partner of Kiefaber & Oliva LLP, via email (zoliva@kolawllp.com) or U.S. Mail (Kiefaber & Oliva LLP, 815 Walker Street, Suite 1140, Houston, Texas 77002). Professional Services
Committee spotlight From page 49
Once the home is completed and the new homeowner is about to move in, Houston Habitat and the HBA Habitat Committee will take part in a dedication ceremony. During this ceremony, members of the HBA and Houston Habitat have the opportunity to meet and congratulate the new homeowner. Last year, the ceremony was primarily virtual, with only the family and a few HBA and Habitat officials attending, but we anticipate that the dedication ceremonies will occur in-person in the coming year. It is beyond rewarding to hear the family explain how meaningful homeownership is for them. None of this could be accomplished without support from the HBA, donors, volunteers, and all the invaluable assistance of Houston Habitat. Thank you! For more information on the HBA’s Habitat for Humanity Committee, please reach out to Bonnie Simmons (BonnieS@hba.org). If you wish to make a tax-deductible donation towards a HBA Habitat home, we invite you to do so here: www.houstonhabitat.org/hba.
Deanna Markowitz Willson and Tara McElhiney are co-chairs of the HBA Habitat for Humanity Committee, along with Kaylan Dunn and Erin Juvenal, both of Video Mediations Available Hunton Andrews Kurth LLP. Willson is a litigation associate at Locke Lord LLP where she focuses her classifieds ads: practicebody on complex To provide a diverse ofcommercial students w litigation. She can be reached at opportunity to obtain an exceptional leg Deanna.Willson@lockelord.com. McElhiney is an associate at South Texas College of LawMorgan Houston of the most wi Lewisserves where one she focuses mary@quantumsur.com bodies in the nation and maintains close to a 90% ultimate bar p her practice on complex corporate or call She can be reached at has For nearly a century, South transactions. Texas College of Law Houston Tara.Mcelhiney@morganlewis.com. practice-ready attorneys from diverse backgrounds, who now ser all 50 states, and 13 countries around the globe.
Since 1923 we’ve remained true to o
Mary Chavoustie
72nd Annual Harvest Celebration Support pro bono by underwriting the Harvest Celebration. 100% of net proceeds benefit Houston Volunteer Lawyers. Peer-to-Peer Giving Challenge September 13 - October 22 Houston Chronicle Donor Ad Deadline October 31 *Only donors at $1,000 and above will be included in the ad
Harvest Celebration Event November 8 at River Oaks Country Club
Learn more and make your contribution at
hba.org/harvest