Three Rosters, One Bar Professional and Personal Notes On Captain James Addison Baker Houston Lawyers Forge the Bayou City’s Path to The Sea A Cornerstone of Justice Ross v. HISD and the Desegregation of Houston’s Public Schools Blazing Trails for Women Attorneys in Houston Law Week 2016
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THE HOUSTON
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Volume 53 – Number 6
Houston’s Legal History
1896 Roster of Houston Bar Association Members
May/June 2016
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contents Volume 53 Number 6
May/June 2016
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FEATURES Rosters, One Bar 10 Three By The Hon. Mark Davidson and Personal Notes 16 Professional On Captain James Addison Baker By Bill Kroger
Lawyers Forge the Bayou 20 Houston City’s Path to The Sea By Taunya Painter
of Justice: 26 ATheCornerstone 1884 Courthouse
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By The Hon. Ken Wise
Started with Two Brave 28 “ItLittleAll Girls”: Ross v. HISD and
the Desegregation of Houston’s Public Schools By The Hon. Josefina Rendón and Rubén Rendón
Trails for Women Attorneys 31 Blazing in Houston: The Honorable Carolyn Dineen King and Carol E. Dinkins By Judithe Little
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Rededicates “Family” 35 HBAA Sculpture in Juvenile Justice Center By Tara Shockley
Week 2016: 36 Law Miranda: More Than Words Place Houston Bar Association 37 First Law Day Essay Contest
The Houston Lawyer
John J. Eikenburg Law Week 38 31st Fun Run Benefits The Center
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, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, 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, 2016. All rights reserved.
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67th Harvest Celebration Benefiting the Houston Bar Foundation November 14, 2016 7-10 p.m.
River Oaks Country Club 1600 River Oaks Blvd.
Join your colleagues in supporting the legal profession’s spirit of giving. Sow seeds of hope through underwriting the 67th Annual Harvest Celebration, where 100% of net proceeds directly benefit pro bono legal services in our community. Your contribution supports the HBA’s Houston Volunteer Lawyers, providing programs that change the lives of low-income Houstonians.
Underwriting Levels & Benefits
• Diamond - $30,000 20 tickets to the event; inclusion in full page ad in the Houston Chronicle; recognition in HBA publications; recognition on signage at the event. • Platinum - $20,000 16 tickets to the event; inclusion in full page ad in the Houston Chronicle; recognition in HBA publications; recognition on signage at the event. • Gold - $10,000 10 tickets to the event; inclusion in full page ad in the Houston Chronicle, recognition in HBA publications; recognition on signage at the event. • Silver - $5,000 6 tickets to the event; inclusion in full page ad in the Houston Chronicle; recognition in HBA publications; recognition on signage at the event. • Bronze - $2,500 4 tickets to the event; recognition in HBA publications; recognition on signage at the event. • Crystal - $1,000 2 tickets to the event; recognition in HBA publications; recognition on signage at the event. • Individual Tickets $200 (Underwriters at $5,000 and above may purchase additional tickets at $125 each.) For more information on underwriting or to purchase tickets, visit www.hba.org or call 713-759-1133.
Provide hope to families.
Help veterans get the justice they earned.
Give seniors peace of mind and dignity.
contents Volume 53 Number 6
May/June 2016
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departments Message 6 President’s HBA Recognized for Outstanding
Programs
By LAURA GIBSON the Editor 8 From Learning from the Past By Angela L. Dixon Lawyers Who 40 Houston Made a Difference
Lewis W. Cutrer
By The Hon. Mark Davidson
42
43
Spotlight 41 Committee HBA Historical Committee:
Preserving the History of the Legal Profession in Houston By Marni Magowan Otjen
the record 42 off Houston Attorney Chris Stevenson and
the Texas Water Safari: ‘I Am NEVER Doing This Again!’ By The Hon. Jeff Work
in professionalism 43 ATheProfile Honorable Harvey G. Brown, Jr Justice, First Court of Appeals Cover: The Houston Bar Association would like to thank Former Secretary of State James A. Baker III and Baker Botts L.L.P. for providing a copy of the 1896 HBA Roster for publication. Members of the Houston Bar Association, 1896 Top Row: Charles E. Ashe, Jas. A. Baker, Jas. A. Baker, Jr., Alexander Barttlingck, D.U. Barziza, W.B Botts, S.H. Brashear (Ex-Judge, District Court) J.D. Bryant 2nd Row: Frank S. Burke, Berry W. Camp, J.M. Coleman, Joe H. Eagle, Presley K. Ewing, Henry F. Fisher, T.W. Ford, Moses W. Garnett 3rd Row: George Goldthwaite, W.P. Hamblen, E.P. Hamblen, E.P. Hill, J.W. Jones, John Kennedy, John H. Kirby, J. Fisher Lanier, J.W. Lockett 4th Row: W.G. Love, R.S. Lovett, Carlisle B. Martin, James. R. Masterson, W.B. Munson, Isaac H. Oliver, W.C. Oliver, G.H. Pendarvis
The Houston Lawyer
5th Row: S.R. Perryman, Henry F. Ring, W. Nelson Shaw (Judge, County Court), Leon Bigelow Smith, E.R. Spotts, Charles Stewart, John S. Stewart (City Attorney), G.W. Tharp, John G. Tod (Judge, District Court) 6th Row: S.E. Tracy, Edgar Watkins, W.H. Wilson, Eugene J. Wilson, Louis J. Wilson, William D. Wilson, J.D. Wolverton, Chas. B. Wood
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Trends 44 Legal Property Owners Should Cheer the
Texas Supreme Court’s Ruling on Duties Concerning Property Conditions By Jason D. Goff
14th Court of Appeals Panel interprets CPRC Chapter 95, in light of Abutahoun By Preston Hutson ReviewS 46 Media The Rise of the Right to Know:
Politics and the Culture of Transparency, 1945-1975 Reviewed by Taunya Painter
Judicial Review in an Objective Legal System Reviewed by Michael J. Mazzone
48 Litigation MarketPlace
Large Firm Champions
Andrews Kurth LLP Baker Botts L.L.P. Bracewell LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions
Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips, Inc. Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions
Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Gardere Wynne Sewell LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP Sidley Austin LLP Strasburger & Price, L.L.P.
Susman Godfrey LLP Sutherland Asbill & Brennan LLP Winstead PC Winston & Strawn LLP
Boutique Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Blank Rome LLP Dentons US LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Hicks Thomas LLP Hogan Lovells US LLP Hughes Watters Askanase LLP Jenkins & Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. LeClairRyan McGuireWoods LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. ReedSmith LLP Sutton McAughan Deaver LLP Vorys, Sater, Seymour and Pease LLP Weil, Gotshal & Manges LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions
Coane & Associates Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Funderburk Funderburk & Courtois LLP Fuqua & Associates, P.C. Hunton & Williams LLP Law Office of James and Stagg, PLLC Katine & Nechman L.L.P.
Katten Muchin Rosenman LLP KimLy Law Firm PLLC KoonsFuller, P.C. Kroger | Burrus MehaffyWeber, P.C. The Law Office of Scardino & Fazel Shortt & Nguyen, P.C. Strong Pipkin Bissell & Ledyard, L.L.P. Tindall & England, P.C. Trahan Dinn Kornegay Payne, LLP
Individual Champions
Alejandro Macias Angela Solice Burford Perry, LLP C.Y. Lee Legal Group, PLLC Damani Law Firm David Hsu Diane C. Treich The Dieye Firm Hasley Scarano L.L.P. Helene Dang The LaFitte Law Group, PLLC Law Office of Bertrand C. Moser Law Office of Cindi L. Robison Law Office of Gregory S. Lindley Law Office of J. Thomas Black, P.C. Law Office of Jeff Skarda Law Office of Maria S. Lowry Law Office of Peter J. Bennett Law Office of Robbie Gail Charette Martin R.G. Marasigan Law Offices Pilgrim Law Office Robert E. Price The Ericksen Law Firm The Jurek Law Group, PLLC Law Office of Evangeline Mitchell, PLLC The Law Office of Norma Levine Trusch
president’s message
By LAURA GIBSON Dentons US LLP
HBA Recognized for Outstanding Programs
A
s this bar year comes to a close I want to tell you about dents in 106 schools. Co-chairs Helene Dang of Foster LLP and some of the good things that the Houston Bar AssociaChris Domingo of Jones Day, as well as all of the committee memtion and our members have done for our community bers, are to be congratulated for their hard work this year. and our profession. One of the missions of the HBA is In October 2015, in recognition of Pro Bono Week, the Hous“to improve community relations through charitable ton Bar Association, in partnership with the Houston Volunteer service and education; and to promote fellowship Lawyers, conducted a number of events designed to We make a among [our] members.” The volunteer services our highlight the importance of pro bono service. Events members have provided this year have been outstandincluded a collaborative law CLE; a Houston General living by what ing. Counsel event at the Houston Area Women’s Center, The State Bar of Texas recently announced that we get, but we followed by a legal clinic where general counsel prothe HBA, which is in Division V, will receive the folvided pro bono services to the HAWC’s constituents; make a life by lowing awards at the Bar Leaders Luncheon during Jeans Day, which raised $8,100 to support pro bono the Annual Meeting in Fort Worth on June 16, 2016: efforts; a special LegalLine for family law issues; a what we give. the Award of Merit, which is an overall award for judges’ luncheon spotlighting other pro bono provid– Winston Churchill programming and projects; the Star of Achievement ers in the Houston area; and special veteran’s Friday Award, which recognizes an outstanding project, for Teach Texas; clinics at both the VA hospital and the VA regional office. the Outstanding Partnership Program for our Juvenile Records As a result of our joint efforts, the American Bar Association Sealing Project, which recently celebrated the 200th case sealed; recognized the HBA with its third place Pro Bono Week award, in the Best Overall Newsletter Award for The Houston Lawyer; the Best a tie with the Dallas Bar Association. The HBA and the DBA were Feature/Human Interest Story for our profile on Todd Slobin and the only metro bars to be recognized for their efforts. his production of Pocket Full of Soul, a documentary on the harThe 31st Annual John J. Eikenburg Law Week Fun Run took monica; and the Best Series of Articles on a substantive area of law place on Saturday, March 12 in Sam Houston Park downtown. for our articles on Cybersecurity, Facebook and Employer Liability. This year’s committee, co-chaired by Susan Oehl of Jenkins & Congratulations to everyone involved in these winning projects! Kamin, Kara Philbin of Fernelius Alvarez, and Zach Wolfe of the While this column is not long enough to allow me to cover all Zach Wolfe Law Firm, raised approximately $62,000 in sponsorof our volunteer efforts, I wanted to highlight a few outstanding ships from 52 underwriters as well as in kind donations. The run efforts. drew 611 registrants comprising 36 teams, 367 individual runners, Our Lawyers for Literacy committee has worked tirelessly this 89 walkers, 16 children’s run participants, and 31 adopted walkers year holding a book drive and Constitution Day readings. As a rewho are residents of The Center. sult of their efforts, the book drive had the third highest collection As a result of the hard work of the committee and the generosity in the history of the HBA. The committee collected over 29,000 of our sponsors, the committee presented The Center with a check books that were distributed to 32 participants as a result of the in the amount of $57,830. Since 1986, the Fun Run has contribgenerosity of 97 firms, 18 corporations, three courts, two schools, uted over $1,270,000 to The Center, a United Way organization eight legal organizations, four book clubs and libraries, and 55 inthat promotes the pursuit of choice, growth and personal independividual donors. dence for adults with intellectual and developmental disabilities. On Constitution Day in September, the committee, as well as This spring our new Teach Texas Committee, co-chaired by other HBA members, read So You Want to Be President in 21 school Justice Brett Busby, Judge Erin Lunceford and David Furlow, in Continued on page 49 districts and nine private schools, reaching just under 9,000 stu-
“
The Houston Lawyer
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THE POWER OF AN LL.M. DEGREE The University of Houston Law Center is home to renowned LL.M. specialty programs with two (Health Law and Intellectual Property) ranked in the Top Ten according to U.S. News & World Report. • Energy, Environment and Natural Resources- There is no better place to study the interrelated areas of energy, environment and natural resources law than UH Law Center located in the energy capital of the world. • Health Law- The Health Law & Policy Institute emphasizes interdisciplinary studies in all areas of health law and policy, and benefits from UH’s association with the Texas Medical Center, the world’s largest medical complex. • Intellectual Property & Information Law- The Law Center’s top-rated IPIL program is on the cutting edge as these disciplines rapidly evolve in the global economy. • International Law- Growing interdependence places a premium on lawyers who understand the intricacies of public and private international law. Houston holds a commanding presence in the global marketplace, and our LL.M. program capitalizes on the city’s substantial connections. • Tax Law- The LL.M. tax program provides the enhanced knowledge and practical skills needed to meet the challenge of successfully dealing with ever-changing tax laws. Apply now for fall 2016 or spring 2017 semester. For more information contact llm@uh.edu or visit law.uh.edu/llm The University of Houston is a Carnegie-designated Tier One research institution and an EEO/AA Institution.
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713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com
May/June 2016
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from the editor
By Angela L. Dixon Law Office of Angela L. Dixon, PLLC
Associate Editors
Polly Graham Fohn Haynes and Boone, LLP
Farrah Martinez Attorney at Law
Taunya Painter Painter Law Firm PLLC
The Houston Lawyer
Hon. Jeff Work Work Law Firm
Jill Yaziji Yaziji Law Firm
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May/June 2016
Learning From the Past
T
and highlights significant changes depicted over the years in his is my final column as editor-in-chief of The the profession. Bill Kroger provides a fascinating profile on Houston Lawyer. It has truly been an enlightenCaptain James Addison Baker. Mr. Kroger’s article explores ing and rewarding experience. Each issue has Captain Baker’s influence in Houston’s legal community and provided outstanding contributions from memalso provides a personal note on how his life was impacted bers of the Houston Bar Association, as well as by Captain Baker. members of the editorial board who volunteered to serve so The Honorable Ken generously. I am honored Wise contributes, “A to have worked with some Cornerstone of Justice,” of the most dedicated an article discussing and creative attorneys in the 1884 Harris County Houston. Courthouse and the sigWhen I began as ednificance of the corneritor-in-chief last year, I stone. In “Houston Lawentitled my first column, yers Forge the Bayou’s “Our Winning Ways.” In The Houston Lawyer’s 2015-2016 Editorial Board, from left: Taunya Painter, associate City’s Path to the Sea,” the comments, I noted editor; Paul Bowers; Zach Wolfe; Ray Panneton; Polly Fohn, associate editor; Marni that The Houston Lawyer Otjen; Judy Ney; Jonathan C.C. Day; Amanda Kreshover; Jill Yaziji, associate editor; editorial board member was selected as the State Preston Hutson; Angela Dixon, editor in chief; Jason Goff; Hon. Josefina Rendon; Taunya Painter gives us Walker; Jeff Oldham; Hon. Jeff Work, associate editor; Kimberly Chojnacki; a historical account of a Bar of Texas Best Over- Matthew and Farrah Martinez, associate editor. Not pictured: Nicole Bakare, Heaven Chee, Houston attorney who all Newsletter and that I Amy Hargis, Al Harrison, Matthew Heberlein, David Rusk, and Suchismita Pahi. was instrumental in helping get funding for the establishhoped we would continue winning with excellence through ment of the Houston Ship Channel. The Honorable Josefina the magazine. I am pleased to say we met those standards and Rendón and Ruben Rendón contribute an article on Ross exceeded them. We were recently informed that The Houston vs. Houston Independent School District, the desegregation of Lawyer received the Best Newsletter Award for a second year Houston Public Schools. Finally, Judithe Little in her article, in a row. We did not stop there and also earned awards for “Blazing Trails for Women Attorneys in Houston,” profiles the Best Feature/Human Interest for “Pocket Full of Soul” by two women, the Honorable Carolyn Dineen King and Carol editorial board member Ray Panneton and Best Series of ArE. Dinkins, sharing insight on their journey in the legal proticles – Substantive Law for three articles in the Technology fession. and the Law issue. This is a testament to the high caliber of In closing, I would like to thank HBA President Laura Gibdedication to this magazine and to the profession, so I apson for giving us some outstanding themes for the year. The plaud everyone involved in making this magazine a success. editorial board truly rallied together to make sure we had This takes me to the final issue of The Houston Lawyer for engaging feature articles and profiles for each issue. I want to this bar year. The issue focuses on a historical perspective. thank the guest editors of this issue, Polly Graham Fohn and It is important to take some time to look back at the past Marni Otjen, for their excellence and dedication in ensuring in order to embrace the present. So many individuals have we had an array of historical pieces. It can sometimes be a paved the way for us in this profession and while we canchallenge balancing so many responsibilities, so I appreciate not highlight all of them, we have assembled some articles their willingness to take the lead on this effort. As I bid you that shed light on some groundbreaking moments in the all farewell, I encourage each of you to be active in the Housbar’s history. The first article, “Three Rosters, One Bar,” diston Bar Association and contribute to The Houston Lawyer. cusses the historical pictorial Rosters published by the HousWe depend on members like you to help us tell stories and ton Bar Association. The Honorable Mark Davidson authors keep the bar informed, so we welcome your input. this piece and provides us with the foundation of the Roster thehoustonlawyer.com
BOARD OF DIRECTORS President
Secretary
Laura Gibson
Warren W. Harris
President-Elect
Treasurer
Neil D. Kelly
Alistair B. Dawson
First Vice President
Past President
Todd M. Frankfort
M. Carter Crow
Second Vice President
Benny Agosto, Jr.
DIRECTORS (2014-2016)
Richard Burleson Chris Popov
Diana Perez Gomez Greg Ulmer
Jennifer A. Hasley Daniella D. Landers
DIRECTORS (2013-2015) Bill Kroger Hon. Erin Lunceford
editorial staff Editor in Chief
Angela Dixon Associate Editors
Polly Graham Fohn Taunya Painter Jill Yaziji
Farrah Martinez Hon. Jeff Work
Nicole Bakare Heaven Chee Jonathan C.C. Day Amy Hargis Matthew Heberlein Amanda Kreshover Jeff Oldham Suchismita Pahi Hon. Josefina Rendon Matthew Walker
Editorial Board
Paul Bowers Kimberly Chojnacki Jason Goff Al Harrison Preston Hutson Judy Ney Marni Otjen Raymond Panneton David Rusk Zach Wolfe
Managing Editor
Tara Shockley
HBA office staff Executive Director
Kay Sim Administrative Assistant
Director of Projects
Director of Education
Projects Assistant
Continuing Legal Education Assistant
Membership and Technology Services Director
Communications Director
Membership Assistant
Communications Assistant /Web Manager
Receptionist/ Resource Secretary
Amanda Piesche
Bonnie Simmons
Ashley G. Steininger
Lindsey Ham
Jessica Lindsey
Ron Riojas
Tara Shockley
Sheena John
Ariana Ochoa
Lucia Valdez
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
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thehoustonlawyer.com
May/June 2016
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E Three Rosters, By The Hon. Mark Davidson
One Bar The 1896 Roster of Houston Bar Association Members. See page 4 for list of names.
tions for of abbrevia uded a list copy is “Propert y of cl in ch hi w is al Roster, a note indicating th the HBA . BA Pic tori The 1961 H mes. On the cover isexecutive director of law firm na ” who was the first Ruth Laws,
very year, the Houston Bar Association publishes its Pictorial Roster, a book that gives the address and phone number of each HBA member. A friend, Lindsey Moorhead, recently lent me Judge Ben Moorhead’s copy of the 1961 Roster.1 The book is a snapshot of the membership shortly before the Baby Boomers started graduating from law school and before other, more significant, changes transformed both our nation and our profession. Former Secretary of State James A. Baker recently found a hitherto unknown copy of the 1896 Pictorial Roster of the Houston Bar and shared his discovery with Bill Kroger. Bill, in turn, shared that discovery with me. Before the size of the bar made a book necessary, the Roster consisted of a frameable display showing individual pictures of each HBA member. That version of the Roster was created once or so a decade. Before the discovery of the 1896 version, it was believed that the first HBA Roster was created in 1912, with the last one made in 1954. After that, the size of the bar made it necessary to publish the Roster in book form. A comparison of the 1896, 1961, and 2015 Rosters paint instructive portraits of the legal profession in our city, then and now. We can see how much, and how little, we have changed. It is worth noting that not all members of the bar are in the Rosters, because some lawyers either chose not to join or, in the case of the earlier Rosters, were not allowed to be members of the Houston Bar Association. Law Firms The 1896 Roster was printed only five years before discovery of oil in the Spindletop field
near Beaumont, a discovery that radically changed the economy of Southeastern Texas. The Port of Houston had been but a dream in the eyes of some city fathers. The Houston economy was built on railroads and cotton. The city’s center of commerce was the two Cotton Exchange Buildings and the railroad station, conveniently located close to each other and the courthouse. The fifty members of the bar pictured then were all lawyers who were expected to be able to try a case for their clients at any time. Several lawyers, such as George Goldwaithe and Presley Ewing, were known as “railroad lawyers,” but they had to be as adept at the freight regulations or land acquisition for building lines as they were at defending claims against their clients in the courtroom. At that time law firms were largely associations of solo practitioners, the fivemember firm of Baker, Botts & Baker being a singular exception. In the 1890s, Bake Botts was the local General Counsel to the Southern Pacific Railroad. This was not only remunerative, but it also gave that firm considerable power in the development of the region. The Roster shows Judge James A. Baker, who had left the bench at the end of the Civil War about thirty years before, and his son, James A. Baker, Jr. The contributions of the Bakers to Houston’s development are far too immense and numerous to be listed here. W.B. Botts is shown, although he did not live to see the Roster in its printed form; he passed away in March of 1894. Also shown is a young associate with the firm, Robert S. Lovett. He would become a name partner of the firm before becoming general counsel, and eventually president, of the Union Pacific Railroad System. Inexplicably, Edwin Parker, who had started at the firm in 1893, is not pictured. He would become managing partner of the firm after the turn of the century and would undertake yeoman tasks for the Wilson Administration during and after World War I. A firm that was perhaps more profitable, if not as long-lasting was Kirby,
Lanier and Martin. John H. Kirby would become one of the richest men in Houston, making a fortune harvesting lumber from East Texas. His law partners apparently spent much of their time representing the Kirby interests. In time, both J. Fisher Lanier and Carlisle Martin would move to Beaumont to be closer to the timber that Kirby was selling. While there, Lanier would also come to represent Patillo Higgins, who thought of drilling for oil in the Spindletop field near Sour Lake, Texas. Higgins had been removed from the title to the land, and Lanier represented him in the successful litigation to profit from the well. In the 1961 Roster, we see a shift from being solo practitioners to being aggregated law firms. The front of the book has several pages of firm names that would be referred to by their initials in the 175 pages of individual listings. Lawyers with Butler Binion Rice & Cook, for example, would be identified as being with “B. B. R. & C.” Unless a reader were familiar with most firms, one would have to flip back to the firm listings to learn what “H. S. J & B.” or “H. B. K. & A.” or “F. C. F. B. & J.” stood for in an individual’s listing.2 Today’s Roster shows more lawyers than ever working for firms, corporations, and governmental agencies, especially the latter. This is true not only in regard to the number of attorneys but also as a percentage of the whole bar. The number of solo practitioners has dropped, perhaps because of increasing specialization. In eras such as 1896 or 1961, most lawyers were general practitioners, although many did relatively little criminal defense work. Today, an urban or suburban lawyer who does civil, family and criminal litigation as well as real estate, corporate patent, tax and environmental advice is a rare bird. Demographics The three Rosters also portray the changing nature of the workforce in general, and the organized bar in particular, over the last 120 years. The 1896 bar association showed fifty white men. Most were
Protestant, and only one appears to have been born in another country. Alexander Barttlingck had come to America in 1867 but returned to his native Prussia to fight in the Franco-Prussian War of 1870-71. After the war, he returned to Texas for good and became an attorney. At the time, many Germans had come to Texas and prospered, and Barttlingck no doubt represented their interests, among others. The 1961 Roster shows that thirty women had joined the bar. None of them were members of any law firm, and many listed only their home addresses, indicating that they might have been law school graduates who took the Bar Exam, and passed, but could not get jobs in the law. One of the exceptions was Helene Susman, who is shown with an address on the 23rd floor of the Gulf Building. Ms. Susman was a 1934 graduate of the University of Texas School of Law and was the first woman in Texas licensed to practice before the United States Supreme Court. She suspended her law practice to raise two sons, but later resumed her career upon the death of her husband. Her son described her practice this way: “She did a little of everything until she became involved exclusively in selling commercial real estate in around 1958.”3 The 1961 Roster had the same number of African-Americans as the 1896 version—zero. There were no Black attorneys in Houston in 1896. After the creation of the Texas Southern University School of Law in 1950, there were several dozen African-American men, and one woman, practicing law.4 None could join the HBA, however, as Article II, Section I of the HBA Constitution limited membership to white lawyers. It would take two elections and the leadership of President W. James Kronzer to remove that word, and that would not occur until 1965. The 1961 Roster shows only three lawyers known to be Hispanic—Felix Salazar, Louis Moore and Frank Pinedo.5 There were certainly other Hispanic lawyers practicing in Houston in 1961, but they apparently were not HBA members. thehoustonlawyer.com
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The requirement that members must be “White” was ignored in at least one case, as Jimmy F. Y. Lee was a Chinese-American lawyer whose picture appears in the roster. Legal Education The 1961 and 2015 Rosters show the law school each member attended and year of graduation. The 1896 Roster does not, and for a very good reason: Very few of them had attended law school. The State’s first law school, Baylor Law School, closed right after the University of Texas School of Law opened in 1883.6 Only one obituary of an 1896 attorney reports him to be a law-school graduate. Frank Burke graduated from Yale Law School before moving to Houston and practicing with Anson Jones, the last President of the Republic of Texas. In the 19th century, a person became an attorney by working in a lawyer’s office for an unspecified period of time, then going to District Court and asking the judge to quiz him on the law to see
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if he knew enough to practice. In many cases, judges would defer the decision to a three-member panel, which would then question the prospective initiate and were said to have one requirement for admission—that the prospective lawyer had to provide whiskey for a post-bar exam celebration with his quizmasters. The 1961 Roster shows a bar heavily populated by graduates of the University of Texas School of Law. About 60 percent of the 1961 membership had graduated from the school. South Texas College of Law was second, with about ten percent of the membership. The University of Houston Law School had graduated its first class in 1950, but was in third place with about 50 lawyers. The Houston Law School, a night school operated by Ewing Werlein, Sr. out of the Harris County Courthouse, showed several dozen graduates—and included some of the leading lights of the bar, despite its closing in 1946. Several Ivy League law schools are represented in that Roster, especially Harvard and Yale.
Public Office The 1896 Roster shows two future members of Congress from Houston, Joe Eagle and Charles Stewart. Several members had been or would become judges. For example, J. R. Masterson had served as Judge of the 11th District Court from 1873 until 1892. Pictured in the Roster are his next three successors, Samuel Brashear (1892-1896), John G. Tod (1896-1900), and Charles E. Ashe (1900-1936). Tod would serve as Texas Secretary of State and Brashear would serve as mayor of Houston. The County Judge of Harris County, W. Nelson Shaw is on the bottom row of the Roster. Also pictured are the first two judges of the 55th District Court, William D. Wilson and W. P. Hamblen. Finally, G. H. Pendarvis served on the Houston School Board. None of this should be a surprise, since attorneys have always been leaders in our community. Somewhat surprisingly, the 1961 Roster contains no past or future members of Congress. One of our two congressional
representatives at the time, Bob Casey, was an attorney and had been a member of the HBA, but apparently let his membership lapse while serving in Congress. Similarly, while all of Houston’s state senators in the preceding twenty years had been attorneys and most of our future state senators would be, only one, Walter Mengden, Jr, is shown as an HBA member. The past, present, and future judges listed are too numerous to mention. Given the explosion of courts created in Harris County in the 1960s and 1970s to match our population growth, it is not surprising that there are many, many future judges of all levels pictured. Today’s Roster includes four members of Congress, several members of the Legislature, and virtually all of the judiciary. Hopefully, future rosters will show that the tradition of public service by HBA members will continue. Military Service The HBA has always had members who served in the military during times of
war. Even though the 1896 Roster was created 31 years after the end of the Civil War, at least nine members had fought in that war — seven on the Confederate side and two on the Union. Of all of the pictured veterans, the best story is that of D. U. Barziza.7 Barziza, a lieutenant colonel in the Southern army, was wounded and captured at the Battle of Gettysburg in 1863. While recovering, he escaped from the hospital, walked to Canada, and then took passage on a blockade runner from Nova Scotia to North Carolina. From there, he rode on horseback to Texas. He would later be elected to the Texas Legislature, where he would serve two terms, and miss being elected Speaker of the House by two votes. The 1961 Roster has many representatives of what we today call “The Greatest Generation.” These include at least one who landed on Omaha Beach on DDay (Joseph Guarino), two who fought at Iwo Jima (Joe Reynolds and George Cire), and the liaison between generals Eisenhower and Montgomery (William
N. Blanton, Jr.). Future Judge Madison Rayburn was known to have been on the team of cryptographers that broke Japanese codes. Tom Stovall was the captain of the P. T. 108, and sank several enemy boats.8 John B. Davidson, a patent attorney at Humble Oil and Refining Company, helped design ignition switches for the atomic bomb.9 This is by no means a complete listing of the HBA members’ war records. The 1961 Roster is undoubtedly full of lawyers who served honorably and whose full military records are lost to history. Today’s Roster includes hundreds of lawyers who served in Vietnam, the Gulf War, Iraq, or Afghanistan. Perhaps some future roster can place a mark next to their names as a small token of the esteem we have for our veterans. It might be a good idea for someone to do for those veterans what we did not do often enough for the Greatest Generation— put together a recorded history of their military records and legal careers so as to leave for the future generations of the bar
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a record that would help future veterans transition back to the practice of law. Conclusion While most of us tend to discard our old rosters in favor of the new ones, the old rosters serve a number of important functions, both at the practical and historical levels. If you want to look up the practice history of an opposing counsel, a roster collection is helpful. If the person is no longer an HBA member, but you are looking for a home address, a roster could be indispensable. The 1896 Roster is a monument to the varied accomplishments of that generation of Houston lawyers, one that is worth emulating. Today, our more diversified and diverse bar has a roster that, it is hoped, will serve as a marker to future attorneys of service to the profession and the public at large. The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court.
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Endnotes 1. Judge Moorhead was Judge of the 11th District Court from 1949 until 1968. 2. In order, that is 1) Hofheinz, Sears, James & Burns, 2) Hill, Brown, Kronzer and Abraham and 3) Fulbright, Crooker Freeman Bates and Jaworski. Sadly, there was no listing for firms with the initials PB&J, BLT, or LSMFT. 3. My thanks to Steve Susman for telling me of his mother’s career. I hope an exhaustive article is made on the first two generations of women lawyers in Harris County. 4. Barbara Jordan would become the first African American female attorney in Houston in 1959. 5. I acknowledge that Hispanic ethnicity cannot always be determined by last names. Anthony J. P. Farris was practicing in Houston in 1961, and was not an HBA member. His middle initials stood for “Juan Perez,” his maternal grandfather, and he identified himself as a Hispanic. 6. Baylor Law School would reopen in 1920. 7. D. U. stood for” Decimus et Ultimus,” Latin for “Tenth and Last.” His obituary states that he was the tenth and last child born of his parents’ marriage, and that his mother gave him that name to indicate that there would be no more children to follow. There were not. 8. Future President John F. Kennedy was the captain of the PT 109. Stovall maintained all of his life that he was one PT boat away from becoming President. 9. Mr. Davidson was the author’s father. I was unaware he had been an HBA member until I saw the roster.
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By Bill Kroger
Professional and Personal Notes On Captain James Addison Baker 16
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Professional Profile It is hard to imagine an attorney who had a greater impact on the development of Houston than Captain James A. Baker. He continues to inspire generations of Houston lawyers, including this author, and has left behind a legacy as lasting as any in Texas.1 Born in 1857 in Huntsville, Texas, to Judge James A. Baker and Rowena Baker, Captain James Baker moved to Houston in 1872 when his father joined Gray & Botts, which then became “Gray, Botts & Baker.” He attended the Texas Military Institute of Austin in 1877 and, for many years, served as “Captain” of the Houston Light Guard. Since then, he has been known as “Captain Baker.” He began practicing law with Baker Botts in 1879 and became a firm partner in 1887. He represented many of the early railroads and utilities in Houston, and was known in his early days as a skilled trial lawyer. Captain Baker is best remembered as one of the founders of Rice University. By the 1890s, William Marsh Rice may have been the wealthiest man in Texas. Captain Baker represented Rice for many years before agreeing in 1891 to serve as trustee for a new educational institution that Rice planned to endow upon his death. Rice’s plan, however, was interrupted in 1900 when he suddenly died in New York City. Captain Baker was instrumental in exposing Rice’s butler as the murderer and recovering Rice’s fortune, which led to the creation of Rice University. He became the first chairman of the Rice University Board of Trustees and served in that capacity until his death in 1941. Captain Baker was a man of enormous energy and considerable interests and passions, in addition to his passion for Rice University. He organized the Commercial National Bank in Houston, and oversaw its merger with South Texas National Bank, forming one of the largest banks in Texas, where he served as Chairman of the Board for many years (1914–1926). As
one of Houston’s leading bankers, he was instrumental in preventing the collapse of Houston banks after the Wall Street Crash of 1929. He also was a director and later president of the Houston Gas Light Company and founder and first president of the Guardian Trust Company, the largest trust company in Houston during his time. He organized several other prominent companies, including the Galveston, Houston and Henderson Railway, and the Southwestern Drug Company. In addition to his success as a businessman, Captain Baker was an influential leader in the Houston community. He was the founder of the Houston Business League and a founding member of the Houston Club and the Houston Country Club. He wrote the charter for the DePelchin Faith Home Association, and was an original supporter of the Houston Symphony. Captain Baker was also involved in creating the Museum of Fine Arts, Glenwood Cemetery, the Rice Hotel, Memorial Park, and the expansion of the Houston Ship Channel. He was also active in the Houston legal community. Captain Baker is the only person to serve twice as president of the Houston Bar Association, was one of the organizers of the Texas Bar Association in 1882, and served as vice president of the American Bar Association. He was one of the original founders of the Harris County Law Library, which, in 1915, made legal resources available to its members and, later, the public. This simple measure was a major advance that improved the quality of legal representation in Houston at the time and continues to benefit Houstonians today. One of Captain Baker’s lasting legacies is his leadership of Baker Botts, which continued for 60 years. He understood, at the beginning of the 20th Century, the effects that the Galveston Hurricane and the discovery of oil at Spindletop would have on Houston and the practice of law. He expanded the firm by hiring and training many of the finest lawyers in Houston during the early 20th century, including
Edwin Parker (1900), Hiram Garwood (1904), Jesse Andrews (1905), Clarence Wharton (1909), Clarence Carter (1909), Walter Walne (1917), and Alvis Parish (1923).
Under Captain Baker’s leadership, the firm also formed specialized practice groups, including corporate, tax, energy, and real estate groups that are still in existence today. He understood, decades be-
Captain Baker with members of the Baker Botts staff in 1895. Photo courtesy Baker Botts L.L.P.
Under Captain Baker’s leadership, Baker Botts adopted innovative practices that are still followed today. In 1911, the firm executed its first written partnership agreement—one that is the direct predecessor of the Baker Botts partnership agreement today. At that time, Captain Baker owned the largest interest in the firm. He understood, however, that if the firm was to grow, he would The original firm partnership agreement of Baker, Botts, Parker have to share his ownership & Garwood. Photo courtesy Baker Botts L.L.P. fore most other firms, that a modern econinterest with his partners. And so, virtuomy would need lawyers with specialized ally every time the partnership agreement skills. He also recognized the importance was amended to admit new partners, his of good centralized management. Baker ownership interest declined. By the time Botts was one of the first firms to adopt of his passing, he had given away all of his a managing partner position and form an shares to his partners. He recognized that executive committee.2 such generosity was necessary for the firm Captain Baker also instilled important to continue beyond the lives of its foundvalues and practices at Baker Botts. He proers. Today, every Baker Botts partner folmoted the fundamental idea that all clients lows Captain Baker’s example—upon had a relationship with the firm, not with reaching the age of 65, each partner gives a specific lawyer. Information about clients up his or her entire ownership interest to and their needs was shared among all partthe benefit of the next generation of Baker ners and across all departments. The firm’s Botts lawyers. thehoustonlawyer.com
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pears as a modern, urban lawyer/banker/ prominent member of the Houston bench archive contains dozens of client-develcivic leader of the fourth largest city. His for more than 16 years. opment notebooks from Captain Baker’s thinking and understanding of the world time that show how partners shared client grew and matured with the city he loved. Personal Notes information with each other. The archives In order to lead such a large number Captain Baker has greatly influenced my also contain dozens of ledgers, reflecting and range of legal, business and civic life and legal practice, and I am thankful careful and conservative accounting pracprojects, Captain Baker built and tices. These ledgers were accesdepended upon teams of men sible to all partners, and this and women who shared his comtransparency reduced the risks mitment and vision. It is telling of disputes and financial scanthat the 1895 photograph depicts dals. him with three members of his Captain Baker also carved Baker Botts staff, two of whom time out of his busy schedule are women. Captain Baker was to mentor lawyers on how to a great judge of talent, but also practice law professionally, inknew how to retain his team, telligently and ethically. For both men and women. His lawalmost twenty years, he hosted yers and staff worked at the firm monthly meetings at his home, for decades, and respected him affectionately called “The immensely. J. H. Freeman, who Oaks.” During these meetings The author, Bill Kroger, former Secretary of State James A. Baker III at The Oaks, Captain Baker and Bob Downie, manager of library services, with some of the firm’s worked beside him at the Firm during his later years, said Capand other Baker Botts law- restored archives. tain Baker’s “genius for selecting people for the many gifts he has left me years afyers discussed new work, important lebuilt this great law firm.”3 ter his passing. His biggest gift has been gal trends, business developments, firm Baker Botts, where I have practiced law for values, tips on improving legal practice, Captain Baker did not let ego interfere more than 26 years. I am one of the many community involvement, and, on occawith his projects or goals. Some of his hundreds of lawyers who have received sion, Baker Botts history. Last year, in partners had strong personalities, but shares in the firm that can be traced back our archives, we found two volumes of his correspondence with them shows to Captain Baker’s interests. But his influminutes from these meetings, showing that he had a gentle hand and knack for ence upon me extends beyond that. vividly the time that Captain Baker spent saying and doing the rights things that About eight year years ago, I began to training his lawyers. kept them working together as a cohesive review hundreds of dusty files, ledgers, Captain Baker died in 1940, at the age team. Teamwork was constantly stressed minute books, and other documents that of 83. In addition to his remarkable conin his meetings. He also knew how to had been buried in the firm’s archives at tributions to Houston, to Texas, and to lead gently from the back of the room. He Iron Mountain. Many of these documents Baker Botts, Captain Baker was the patrinever held the title of managing partner. had not been reviewed for many decades, arch of a dynamic and influential family Instead, he promoted younger partners or had been completely forgotten. And that has continued to play a leadership to that position. During meetings at The they opened new insights into the characrole in local, state, national and global Oaks, he would often make a comment ter of Captain Baker. affairs. His wife, Alice Graham Baker, or observation, and then solicit feedback He had a flexible and nimble mind, as founded the organization now known as from his colleagues on whether his views the photographs in this article illustrate. Neighborhood Centers. His son, James were correctly held or not. Freeman obOne shows Captain Baker at the Baker A. Baker, Jr., was a World War I veteran served that “[a]ll through the years, [CapBotts offices in 1895, when Houston had and a Baker Botts partner for many years tain Baker] was happy to let others occumud streets, the firm had only a few law(1919–1973). His grandson, Secretary of py center stage while he remained in the yers, and crude oil hadn’t been discovState James A. Baker, in turn, joined Bakbackground–though everyone knew he ered in Texas. Captain Baker appears as er Botts as a partner in 1993 after many was the most powerful man in the firm.”4 a Western character, with his boots and years of public service. And his great Captain Baker was honest in his dealchair resting on a bear skin rug. The office grandson, Jamie Baker, chairs the firm’s ings, and understood the importance of is lit by electricity, which Captain Baker Global Projects Department and is a good accounting to reduce the risk of misonly a few years before had helped bring member of the firm’s Executive Commitunderstandings or worse. His ledgers for to Houston. A second photograph was tee. Judge Caroline Baker, another great all of his activities (personal, firm, bank, taken more than 30 years later, and he apgrandchild of Captain Baker, has been a trust) are meticulous, and cover every day 18
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of his professional life. The ledgers for his personal investments reveal the scope of his business acumen, for he invested in real estate, stocks, notes, and oil and gas properties. When the stock market crashed in 1929, he held onto and actually increased his investments, taking advantage of the discounted prices. When he died, he was a wealthy man. Captain Baker’s conservative finances and judgment allowed him to pursue complicated and difficult projects. Although he had no experience running an educational institution or bank, he helped build Rice University into a world-class institution, and his bank into the second largest in Texas. By 1920, he had built a law firm that in its size, complexity and sophistication was unlike any other firm in Texas. By the 1920s, almost every major project in Houston seemed to need Captain Baker’s support, because his judgment and experiences were so well respected. In the Houston Volunteer Lawyers offices today, there are many pictures of Gregory Peck as Atticus Finch from To Kill a Mockingbird. Atticus Finch is a role model for many lawyers, but he was fictional and never actually lived or practiced law. In Houston, though, we have many examples of outstanding lawyers who have left behind important legacies and impact on their community. And one of them was Captain Baker. Bill Kroger is a partner and chair of the Energy Litigation Practice Group at Baker Botts. He serves as second vice president on the 2016-2017 board of directors of the Houston Bar Association. Endnotes 1. His definitive biography is Captain James A. Baker of Houston, 1857–1941 by Kate Sayen Kirkland. Her book is a joy to read, and is one of the best biographies on the practice of law in Texas. It should be in the library of every Houston lawyer. This article relies on Sayen’s excellent book, along with materials from the Baker Botts archives and two earlier histories written about the Firm. 2. During our 175th anniversary, we found in our archives the minutes from the first executive committee meetings, which were led by Captain Baker. 3. Freeman, The People of Baker Botts, p. v. Freeman dedicated his great book to Captain Baker.
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By Taunya Painter
Houston Lawyers Forge the Bayou City’s Path to The Sea During his work on bringing the ship channel to Houston, Thomas Ball also served as president of the Houston Bar Association in 1906.
W
hen Thomas Henry Ball left his law practice in Houston and went to Washington, D.C. in 1896, he walked into his new office in the U.S. House of Representatives with a singular focus. He was there not to be a career politician, but to build a deepwater path from Houston to the Gulf. This would be no small task. The political forces of Galveston–a city that was bigger, older, and more politically connected than Houston at this time were strongly against him. More importantly, the Chairman of the House Rivers and Harbors Committee was against him. To finish his task, he was both creative and relentless. But luck, fate, and Houston’s quest to be great were also on the side of Representative Ball when he sought Congressional approval to transform Houston’s 6-to-10-foot deep bayou into a deep-water ship channel. Around the same time, the full benefits of the industrial revolution in engineering equipment and rail were being seen in Houston. Houston experienced the fast advancements in railroads, much to the credit of Charles Morgan, a shipping and railroad magnate, who was not afraid to pick a fight and roll over obstacles. Rail lines were built, with Houston being the central point and its spokes radiating to the interior of Texas and down to the Galveston port. Morgan, who operated rail and ships, ran into Galveston’s ever increasing wharf fees. Galveston would not budge, so Morgan decided to do an end run. He took control over management and the funding of the Bayou. He built over a thousand feet of wharves, created a turning basin, and constructed a canal at a place called Morgan’s Point to straighten and deepen the bayou at Galveston Bay. Houston also got its own port designation and customs agent, so Houstonians could anchor out in the Galveston bay, off-load to barges, and float up to the Houston Port. It was not ideal, but it made the path forward to a ship channel to Houston a clear necessity. Years before
Representative Ball sought federal funding to dredge a deep water ship channel, Morgan improved the whole operation of the Bayou and Port. In effect, he set the stage. In the production side of the Houston economy, there were also major changes at this time. When Representative Ball first went to Washington, the Buffalo Bayou commerce had largely been shipping timber, cotton, and farm goods. But oil was soon discovered in Texas, and on January 10, 1901, there was a famous discovery when a great gusher erupted in an oil well being drilled at Spindletop, near Beaumont, Texas–some said, a gusher “seen ‘round the world’.” Investors poured into Houston. Houston commerce was speeding along, then oil attached a jet engine to the economy. Companies located refineries along the bayou and developed a critical mass of petroleum and petrochemical related companies. Representative Ball got an incredible boost. On the national front, there was another fortuitous event occurring. At the exact same time, Congress was debating where to place a Central American canal, a path between the great seas. Both of these engineering feats were strongly opposed by powerful interests who had persuaded the majority in Congress that Nicaragua was preferable over Panama for a canal, and that the Brazos River was better than the Buffalo Bayou for a Texas inland port. Congress had just voted almost unanimously to put a canal in Nicaragua. In both instances, an attorney started to turn the tide. Representative Ball advocated for the Houston Channel, and William Cromwell, also a lawyer, advocated for the Panama Canal. Representative Ball arranged to take his Congresional colleagues on a factfinding mission to Houston. As the trip drew nearer, Ball grew nervous. The Bayou at this time looked like little more than a muddy ditch due to a drought. But as Mark Twain said, “If you don’t like the weather…, just wait five minutes,” and as luck would have it, a Gulf-sized storm blew into Houston. By the time
the delegation from Washington arrived, By 1901, the path for Houston’s deep the water had overflown the banks of the sea port was clearer. Another tragedy hit. Bayou by five feet. Houston Mayor Horace President William McKinley was assasBaldwin Rice, Jesse H. James, and Represinated. Theodore Roosevelt was sworn sentative Ball gave the Congressmen a in as the new President, and once again, Houston-sized party and introduction events born out of tragedy propelled the to their booming city. While touring the channel approval forward. As former Bayou, the tour guide did not mention Assistant Secretary of the Navy, Presione word about the storm and even exagdent Roosevelt had aggressive goals to gerated the depth strengthen and of the Bayou for expand Amerthe benefit of his ica’s ports and audience. ocean power, and While in Houshe almost immeA steamboat travels the Houston Ship ton, the U.S. diately supported Channel. Representatives the plan that Wilwere struck by liam Cromwell the high level of was proposing involvement by for Panama to be the business leadthe path between ers. It would be a the world’s two business led port, largest oceans. not a government Within just a led port. Janiece few months, he Longoria, the signed authorizaShips holding cotton and grain in the Port, as current Chairtions and fundseen from Allen’s Landing. man of the Port ing for both the Commission, and a Houston attorney, exHouston Ship Channel and the Panama plains Representative Ball’s idea: “There Canal. His instructions for the Panama was still the thorny probCanal were direct: “Make lem of funding this masthe dirt fly!” sive project, a 52 mile deepThe dirt, or rather mud, water channel. A novel idea flew in Houston as well. soon solved that problem. Once there was the fundLocal citizens agreed to ing, Houston Mayor Rice partner with the federal pushed for the Bayou to be government and pay half dredged from its average of the cost of dredging the of 16 feet to a full 25 feet deep-water channel. Confor the length of the Ship gress was impressed with Channel. The Mayor wantHouston Port Commission the idea that local citizens Chair Janiece Longoria with ed to ensure that he would would share the cost, and Texas Secretary of State not run into roadblocks Carlos Cascos. they named the proposal outside of Houston’s city the ‘Houston Plan’.” limits, so he again turned to Ball, who Sadly, also around this time, the infahad since returned to Houston and was mous “Storm of 1900” hit Galveston, a practicing law for the rail and shipping hurricane that killed more than 6,000 industries. To solve the issue of authoripeople and wiped out most of the city. ty, Port of Houston Authority Chief Legal Many survivors had to retreat to HousOfficer and General Counsel Erik Erikston. It was at that point that the business son stated that “Congressman Ball came community aligned behind Representaup with the plan to designate the entire tive Ball’s proposal. ship channel as a ‘Navigation District.’” thehoustonlawyer.com
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The district would span Harris County, have the power to raise funds from its property owners, and later gain responsibility for economic development over the entire course of the Ship Channel. Ball went to the Texas Legislature in 1909, and pushed through approval for his idea, which became known as the Harris County Houston Ship Channel Navigation District, for which he would serve as its first General Counsel. “Ball was a pragmatist,” Eriksson adds, “but
he was also a creative lawyer who solved problems for the long term.” When the Mayor ran into any challenge, he put his friends on it (“call my banker” or “call my lawyer”) -- Jesse H. James or Representative Ball. These three were a team that made the dirt fly. In true Houston fashion, the work was completed a year ahead of schedule. Amazingly, the Houston Ship Channel and the Panama Canal were finished the same year, just about a month apart,
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and the completion being marked by the push of a button in Washington, D.C., by President Woodrow Wilson. But their christenings, in 1914, were overshadowed by the beginning of a World War, which broke out just eleven days before the Panama Canal opened and a little over one month before the Houston Ship Channel was finalized. The muddy bayou that was six feet deep 100 years ago, and hardly navigable by a small vessel, is now a worldclass port and channel 45 feet deep, 400 feet wide, and about 52 miles long. It is the largest U.S. port in terms of foreign tonnage and second in total tonnage. In Texas, alone, it supports more than an estimated 1.175 million jobs and more than $265 billion in economic activity. As we look at recent expansions and the future, we look to the leadership of another Houston attorney: Janiece Longoria, Chairman of the Port Commission, which governs the Port of Houston Authority. Longoria has continued with major expansion plans for the channel and port because global trade is changing--the capacity of ships has more than doubled just in the last ten years. Also, U.S. retailers are diversifying after they were hit with a major 2002 port strike in California. After the strike, Houston made a move for that retail distribution business, and the retailers listened and acted, by building massive distribution centers near the Houston Port. They were shipping only from East Asia to California, with trains and semi-trucks moving products West to East. After 2002, they wanted to ship from Asia, traverse the Panama Canal, and dock at the East Coast or Gulf ports, which includes Houston. As a result, the Panama Canal is finishing a major expansion in 2016, by adding in a third lane to accommodate these “Post Panamax” ships. “Panamax” means the maximum dimensions of a ship that could fit through the Panama Canal locks and dams system since the Canal opening in 1914, while “Post Panamax” will be the maximum size for a ship to travel the
new, larger lane in 2016. While the PostPanamax ships are not significantly larger in length (1,200 feet vs. 1,050 feet) or width (161 feet vs. 110 feet), there is a big difference in draft, which is how far the ship sinks below the water level (50 feet vs. 39 feet). With these increased dimensions, the volume of the Post-Panamax vs. the Panamax ships has more than doubled (new ships can hold 12,000 twenty-foot equivalent units (TEU), which are the size of a semi-truck container, vs. 5,000 TEUs). Houston has been expanding on a parallel path to accommodate some of these Post-Panamax ships, by further increasing Channel depth and bringing in mammoth cranes to unload the ships. Longoria, like Ball, has been a creative and strong leader. In addition to jumping on new opportunities, she has not allowed progress at the Port to be dependent on Federal government funding, which can take decades. The Port Authority, to remain at the forefront
of new trade opportunities from larger ships and more volume, has self-funded terminal dredging projects to assure that the Port of Houston Authority is ready to accommodate larger ships from an expanded Panama Canal expected to come on line in mid-2016. “In light of the expansion of the Panama Canal, it is certainly important that we are ready to receive the larger vessels that will be calling on our terminals,” Longoria said. “We are committed to have the Port of Houston and the Ship Channel ready for this expansion.” Longoria is leading the way and is consistently ahead of schedule to bring the business of the world to Houston’s doorstep. The Houston Ship Channel and Port continue to grow and expand, often leading the growth in the region. Without Thomas H. Ball, Representative, industry lawyer, and former president of the Houston Bar Association, it is possible this backbone of the Houston
economy would not even exist. And as we look at the Port of Houston and Ship Channel today and its future growth in scale, significance, and strength, we also appreciate the work of another Houston lawyer and business leader, Janiece Longoria. Taunya Painter is an attorney with the Painter Law Firm, focusing on international law, business law, and litigation. She is on the editorial board of The Houston Lawyer. The author is grateful for these resources and recommends them highly: • Sheer Will: The Story of the Port of Houston and the Houston Ship Channel, April 28, 2014, David H. Falloure. • “PBS: Houston Ship Channel, Centennial, 1914-2014,” aired, Houston Public Media TV 8, November 10, 2014. • The Path Between the Seas: The Creation of the Panama Canal, October 15, 1978, David McCullough.
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Association of Attorney-Mediators Houston Chapter
AAM is a nonprofit trade association of qualified independent attorney-mediators. In Texas, AAM is synonymous with quality and professionalism. Members must meet qualifications and ethical standards which meet or exceed state or federal requirements for mediators. The AAM Houston Chapter has been the leader in service, education and promotion of mediation as the preferred method of resolving disputes. Membership in the Houston chapter of AAM signifies a mediator who has completed the most comprehensive training program by the most capable mediation trainers in Texas. For an AAM Houston Chapter Directory visit: www.attorney-mediators.org/HoustonChapter For additional information, please contact: Larry Hinojosa, President at 713.236.7772 or jlarryh@gmail.com
MEMBERS Michael Kuhn Jeff Abrams Alan Levin Nancy Atlas Jim Lober Trey Bergman David Lopez Bob Black Dave Matthiesen Elaine Block Jane McEldowney Henry Blum Genevieve McGarvey Fran Brochstein Gary McGowan Randy Butler Michele O’Brien Will Cannon Alice O’Neill Paul Clote Austin O’Toole Bryan Coleman Danielle Comeaux Susan Perin Gloria Portela Carla Cotropia John Powell Allan Davis Tommy Proctor Ben DeVries Roger Rider John Donovan Leigh Saint-Germain Donald Eckhardt Stanley Santire Frank Evans Louis Selig John Feather Susan Soussan Terry Fry Sundra Spears Hal Hargis Brian Tagtmeier Larry Hinojosa Amy Dunn Taylor Pam Hoerster Franklin Holcomb Robin Taylor Bill Towns Steven Howard Ronald Wardell Nancy Huston Sherry Wetsch John Hutchison Michael Wilk Greg Jones Doug Wilson Charles Jordan John Wooldridge John Kelly Alvin Zimmerman Raymond Kerr Jeff Kilgore
By The Hon. Ken Wise
A Cornerstone of Justice
The 1884 Courthouse O
ne ordinary work day downtown, a landscaping crew scraped the ground in the northeast corner of Houston’s courthouse square. When their blades hit something hard, the crew dug around the obstruction and unearthed a large square stone. The crew gave it a thorough cleaning that revealed a beautiful white marble cornerstone marked “1883.” The laying of a cornerstone during the construction of a significant building dates back to biblical times, often marked by a ceremonial occasion. The tradition has evolved over the years but continues today. In 1836, Augustus and John Allen founded a new city at the head of naviga-
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tion on Buffalo Bayou, wisely naming it after the hero of San Jacinto, President Sam Houston. They designated the block surrounded by Fannin, Preston, San Jacinto and Congress streets as the courthouse square. The first court in the Republic of Texas was held under a tree on that block in 1837. Today, the block is occupied by the historic 1910 courthouse, home to the First and Fourteenth Courts of Appeals. Despite its historic status, the 1910 courthouse is actually the fifth courthouse to occupy the site. Construction began on the prior courthouse in 1883 and included a traditional cornerstone. At 4:00 p.m. on October 19, 1883, Harris County held a ceremony for the laying of
the cornerstone. The cornerstone was laid in the Masonic tradition at the northeast corner of the building near the intersection of San Jacinto Street and Congress Avenue.1 Representatives from both the Holland Lodge, A.F. and A.M. No. 1 and Gray Lodge, A.F. and A.M. No. 329, participated. The Most Worshipful Grand Master Charles Stewart, of the Grand Lodge of Texas, presided over the ceremony. To mark the occasion, a time capsule was also placed with the cornerstone. A newspaper account of the day laments that many of the items placed in the cornerstone were meaningless and placed there only to get the name of the depositor in print.2 Among the items considered to be more important by the Galveston Daily News reporter covering the event included the by-laws and lists of officers from both the Holland and Gray lodges, a list of city officials, a tribute to the Governor of Texas John Ireland, and an 1836 brass-barreled flintlock pistol.3 The reporter also pointed out that County Commissioner Frank Burke deposited a copy of the October 10 Houston Post defending him against allegations that he stole money from the county in connection with the bond-issue for the courthouse construction.4 For reasons unknown, the scheduled speaker for the ceremony did not show at the event. In his stead, the Most Worshipful Charles Stewart made a speech stating that he “trusted the balances would ever be held in equilibrium in this magnificent temple of justice.”5 That temple of justice opened in 1884 and stood until 1908 when it was torn down to make room for the 1910 Courthouse, the current occupant of Houston’s courthouse square. But her cornerstone remains, now displayed on the first floor of the 1910 Courthouse. The Hon. Ken Wise is a justice on the Fourteenth Court of Appeals. Endnotes
1. 2. 3. 4. 5.
Galveston Daily News, October 19, 1883 Ibid Ibid Ibid Ibid
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
Holm I Bambace LLP
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Cokinos, Bosien & Young
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Firms of 100+ Attorneys
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& Barrow, LLP
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Wilson Cribbs & Goren PC
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& Young, LLP
Wilson Elser Moskowitz Edelman
Corporate Legal Departments
Cozen O’Connor
McGinnis Lochridge
& Dicker LLP
Anadarko Petroleum Corporation
Crady, Jewett & McCulley, LLP
McGuireWoods LLP
Wright Abshire, Attorneys, PC
AT&T Texas
Crinion Davis & Richardson LLP
MehaffyWeber PC
Wright & Close LLP
BP
De Lange Hudspeth McConnell & Tibbets LLP
Morris Lendais Hollrah & Snowden
Ytterberg Deery Knull LLP
CenterPoint Energy
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Nathan Sommers Jacobs
Zimmerman Axelrad Meyer Stern
El Paso Corporation
Dobrowski, Larkin & Johnson LLP
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& Wise PC
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Dow Golub Remels & Beverly LLP
Ogletree Deakins Nash Smoak
Zimmerman, Lavine & Zimmermann P.C.
LyondellBasell Industries
Doyle Restrepo Harvin & Robbins LLP
& Stewart, P.C.
Zukowski Bresenhan, Sinex & Petry LLP
MAXXAM, Inc.
Ewing & Jones, PLLC
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Firms of 25-49 Attorneys
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Adams and Reese LLP
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Perdue & Kidd
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S & B Engineers and Constructors, Ltd.
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Fleming | Nolen | Jez, L.L.P.
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Andrews Myers, P.C.
Texas Children’s Hospital
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Beck Redden LLP
Total E&P USA, Inc.
Fullenweider Wilhite
Roach & Newton, L.L.P.
Beirne Maynard & Parsons, L.L.P.
University of Houston System
Funderburk Funderburk Courtois, LLP
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Blank Rome LLP
Galloway Johnson Tompkins Burr
Royston, Rayzor, Vickery & Williams, L.L.P.
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Gibbs & Bruns LLP
Thurgood Marshall School of Law
Givens & Johnston PLLC
Schiffer Odom Hicks & Johnson PLLC
Kane Russell Coleman & Logan PC
University of Houston Law Center
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Government Agencies
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Firms of 50-100 Attorneys
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Chamberlain Hrdlicka White Williams & Aughtry
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Newfield Exploration Company
Harris County District Attorney’s Office
By The Hon. Josefina Rendón and Rubén Rendón
“It All Started with Two Brave Little Girls.”1
Ross v. HISD and the Desegregation of Houston’s Public Schools
T
here are few cases in Houston’s legal history that have had as strong an impact on the city and its residents as Ross v HISD. The case started in the fall of 1956 with two girls, Delores Ross (age 9) and Beneva Williams (age 14), whose parents tried to enroll them in two all-white schools in Houston, only to be rejected because of their race. Soon after, attorneys from the National Association for Colored People (NAACP) filed the lawsuit demanding the end of racial segregation in Houston Schools. They were
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asserting their claim based on the thenrecent Supreme Court decision, Brown v. Board of Education.2 The Brown decision, announced by U.S. Supreme Court Chief Justice Earl Warren on May 17, 1954, declared school segregation unconstitutional: “In the field of public education the doctrine of ‘separate but equal’ has no place.” “Separate educational facilities are inherently unequal,” the Supreme Court unanimously concluded.3 Because Brown involved a series of cases and class actions, and because of the complexity of possible relief to the parties and remedial actions to implement desegregation, the Court remanded the cases to the original courts, inviting the parties, the U. S. Attorney General, and the Attorneys General of affected states to submit briefs regarding plans for implementation.4 A year later, the U.S. Supreme Court addressed questions of actual implementation of desegregation in the schools. The Court acknowledged that implementation of the Brown constitutional mandate would require local solutions. “School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.”5 Accordingly, the Court remanded the cases to the original courts to “best perform this judicial appraisal”6 and to “enter such orders and decrees... as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”7 The Court required defendants to start promptly toward desegregation. However, if defendants established need for more time and showed good faith attempts to comply “at the earliest practicable date,” the Court gave the lower courts authority to grant additional time.8 Accordingly, the Brown decision stated that the courts could consider factors necessary to achieve a system of determining non-racially-biased admission to the
public schools, such as revision of local discriminatory laws as well as school administration issues, including physical conditions, transportation systems, personnel, and other factors. The courts were also given authority to consider the adequacy of any plans proposed by defendants and the mandate to “effectuate a transition to a racially nondiscriminatory school system.”9 Finally, the Brown order specified that the courts would retain jurisdiction of the cases during the period of transition. At the time of the Brown decision, Texas still had constitutionally mandated school segregation10 and Governor Allan Shivers—a staunch supporter of state’s rights—advocated resistance to integration and federal intervention.11 Still, some Texas cities with low percentages of African American students announced plans to desegregate,12 while cities with larger percentages of African American students resisted implementation.13 The Houston Independent School District (HISD) was, in fact, the largest segregated school district in the country. Some members of HISD’s board of trustees started gestures to implement the general mandate of the Brown decisions but met strong resistance. “Every step of the way, they did everything they could to slow down the process,” asserts one historian, “[t]his is what school districts did all over the South.”14 After Brown, and a year before the filing of Ross, at least eighteen children tried to enroll in all-white schools in Houston, only to be denied entrance. But in the fall of 1956, the parents of Delores Ross and Beneva Williams, acting in conjunction with attorneys from the NAACP, soon filed suit. The case was to be heard by federal district Judge Ben C. Connally. Shortly before the filing of Ross, Judge Connally had ruled that the Harris County courthouse could not refuse service to African Americans and gave the defendants 90 days to comply and implement the necessary changes.15 However, when faced with a lawsuit seeking the desegregation of Houston’s public schools, he
protested the pairing of Hispanic and was cautiously slower. In many ways he African American schools while most acted as mediator in many informal diswhite schools were left untouched.21 Ancussions, trying to resolve the issues. But, by November 1959, after many such disother act of resistance to integration was cussions and little action from the school, the proposal to create a separate, mostly Judge Connally issued an order requiring white, Westheimer ISD, which was struck HISD to desegregate with down by the courts.22 all “deliberate speed,” By 1983, many white and ordered the school students had left the disto submit plans for detrict, so, there were still segregation. The HISD several one-race schools board again dragged its in HISD. Plaintiffs once feet. Thus, Judge Conagain sought court internally promptly ordered vention. However, in this the HISD board to file instance, the Fifth Cira desegregation plan cuit concluded that this by June 1, 1960, warnwas occurring because ing them that if they African American and missed the deadline he Hispanic students were a would “grant the relief... majority rather than as a Brown decision, announced by sought” and immediately “vestige of past discrimiU.S. Supreme Court Chief Justice order desegregation.16 nation.”23 “There are not Earl Warren on May17, 1954 enough students left in The HISD board finally the district to effect greater integration filed a plan but Judge Connally ruled that of student bodies without untoward cost the proposed plan did not even constitute on the students themselves.”24 Finally in a good faith attempt at compliance. He then ordered the desegregation of HISD 1984, the parties reached an out-of-court schools. The order established a “stairsettlement which was later accepted by step” plan starting in September 1960 in the court. The agreement reaffirmed and which HISD would desegregate one grade formalized the magnet schools program per year.17 Defendants appealed and furthat had already started in the mid-seventies as the best-fitting desegregation ther delayed the case, but the Circuit program. Because of the uniqueness of Court affirmed the decision.18 By the end their curriculum, magnet schools worked of 1960, the issue was no more whether as “magnets” that would attract students HISD schools would desegregate, but from other zones and races within the rather, when and how. school district and consequently encourEven then the battle continued. Espeage voluntary integration.25 cially in the earlier years, the electoral wins and losses of board trustees often The Ross litigation remained under rested on the candidates’ stance on intecourt oversight for almost 30 years. It ingration. School board meetings involved volved many local political changes, five heated discussions.19 Only nominal numdifferent district judges,26 and at least ten bers of African American students were published legal decisions.27 It is a fascigranted transfers to the white schools as nating study in judicial case management they were still not welcomed. “Change or activism, political gamesmanship, and came slowly. Emotions ran high.”20 The the art of negotiation. According to some sources, nothing much changed, while ensuing years witnessed “White flight” others believe that Ross definitely did from HISD, countless court orders, a help the HISD to integrate in a peaceful short-lived attempt at forced busing, manner. In the end, the two brave little demonstrations by African American girls, Delores Ross and Beneva Brown, students demanding more deliberate never attended a racially integrated speed, and boycotts by Hispanics who
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In the field of public education the doctrine of ‘separate but equal’ has no place.
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school. However they helped change history and the landscape of race relations in Houston. Nevertheless, a half century later it seems that Houston schools, and even the magnet programs put in place to integrate the schools, are still treated differently in terms of funding. For example, in 2010 it was reported that Sharpstown Middle School received $3,500 per pupil, while Herrera Elementary School received $18 per pupil.28 Recently, some magnet schools were closed for lack of enrollment; many of those schools were historically African American, such as Pleasantville, Holland Middle School, and Wheatley High.29 Currently, HISD is the seventh-largest public school system in the nation, and the largest in Texas, with almost 300 schools encompassing 301 square miles and over 215,000 students.30 Of these HISD schools, the students are 62.1% Hispanic, 24.9% African American, 3.6% Asian, and 8.2% White. About 100 languages are spoken by students throughout the district, and 75.5%
are considered “economically disadvantaged.”31 The authors believe more could and should be done to improve Houston schools. We encourage the readers to help make a better future for equality in our schools. Josefina Rendón is an Associate Municipal Judge and Mediator in Houston. She is the former Judge of the 165th District Court and a member of The Houston Lawyer editorial Board. Rubén Rendón was local counsel for the Hispanic Children in the Ross v HISD litigation in the late 1970’s thru the early 1980’s and an attorney for the Mexican American Legal Defense and Education Fund (MALDEF). He currently practices workers compensation and personal injury. The Rendon’s two children proudly attended Houston’s Magnet schools. Endnotes
1. Quote from Salatheia Bryant, Integration did not come to HISD until 1984, HOUSTON CHRONICLE, May 16, 2004. Available at http://www.chron.
Guardianship Ad Litem in the Probate Courts Certification Video Now available for viewing in the HBA Office! Approved for 4.25 MCLE credit including .75 hour of ethics. $70.00 for HBA members, $140 for non-members. *Meets the new certification requirements Call 713-759-1133 to schedule a viewing. *Your ad litem certification may be void. Effective Sept 1, the law now requires a 4-hour certification course, of which one hour shall be alternatives to guardianship. In addition all applicant’s attorneys must also be certified.
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com/news/houston-texas/article/Integration -did-not-come-to-HISD-until-1984-1512348.php 2. Brown v. Bd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 495 (1956). 3. Id. 4. Id. 5. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 299 (1955). 6. Id. at 299. 7. Id. at 301. 8. Id. at 300-301. 9. Id. at 300-301. 10. Tx. Const. Art. VII section 7. (Repealed Aug. 5, 1969.)(“[S]eparate schools shall be provided for the White and colored children, and impartial provision shall be made for both.”) 11. William H. Kellar, Make Haste Slowly; Moderates, Conservatives and School Desegregation in Houston, Texas (A&M Univ. Press 1999). Letter from V. McMurry to Shivers, January 10, 1955, Records of Allan Shivers, Texas Office Of The Governor, Archives And Information Services Division, Texas State Library and Archives Commission. Available at https://www.tsl.texas.gov/ governors/modern/shivers-mcmurry.html 12. These were, among others, San Antonio, El Paso, Corpus Christi, Austin, Lubbock and Waco. 13. Dallas, Fort Worth, Galveston, and Houston. 14. Kellar, Supra 11. 15. Id. at 78. 16. Steven Harmon Wilson, RISE OF JUDICIAL MANAGEMENT IN THE U.S. DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, 1955-2000, Univ. of Georgia Press (2002) at 23. 17. Houston Indep. Sch. Dist. v. Ross, 282 F.2d 95 (5th Cir 1960). 18. Id. 19. Kellar, Supra 11. 20. Supra 1. 21. Hispanics were considered White therefore pairing Hispanics and African Americans would technically be “integration.” Supra 1. 22. Houston Indep. Sch. Dist. v. Ross, 559 F.2d 937 (5th Cir 1977). The proposed Westheimer District would have been 89% White, 6% African American, and 5% Hispanic. 23. Ross v HISD, 699 F.2d 218 (5th Cir. 1983) 24. Id. 25. Some of these Magnet programs were for “Gifted students,” Performing Arts, Aviation, Medical Careers. 26. These were: Judges Ben C. Connaly, James L. Noel, Jr., Finis Cowan, Robert O’Conor, Jr., and John V. Singleton, Jr. 27. Houston Indep. Sch. Dist. v. Ross, 282 F.2d 95 (5th Cir. 1960); Ross v. Dyer, 312 F.2d 191 (5th Cir. 1962), Ross v. Dyer, 203 F. Supp. 124 (S.D. Tex. 1962); Ross v. Eckels, 317 F. Supp. 512 (S.D. Tex. 1970); Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970) cert. denied, 402 U.S 953 (1971); Ross v. Eckels, 468 F.2d 649 (5th Cir.1972); Ross v. HISD, 457 F. Supp. 18 (S.D. Tex.1977); Ross v. HISD, 559 F.2d 937 (5th Cir. 1977); Ross v HISD, 583 F.2d 712 (5th Cir. 1978); Ross v HISD, 699 F.2d 218 (5th Cir. 1983). 28. Safiya Ravat, At HISD Magnet Event, There’s No Hint of Funding Controversy, HOUSTON CHRONICLE, Nov. 8, 2010. Available at http:// www.chron.com/news/houston-texas/article/ At-HISD-magnet-event-there-s-no-hint-offunding-1700880.php 29. Andy Cerota, Houston ISD closes 20 magnet school programs. HOUSTON CHRONICLE, Oct. 17, 2013. Available at http://www.click2houston.com/news/houston-isd-closes-20-magnetschool-programs. 30. Houston Independent School District: Facts & Figures available at: http://www.houstonisd. org/site/handlers/filedownload.ashx?module instanceid=48525&dataid=137826&FileNam e=J94838_2014-15_FactsandFigures_Final_ LR_20150401093211_195315.pdf 31. HISD General Information. Available at http:// www.houstonisd.org/achievements
By Judithe Little
Blazing Trails for Women Attorneys in Houston:
The Honorable Carolyn Dineen King and Carol E. Dinkins
F
or women who attended law school in the 1960s or earlier, there were no set paths, no precedent for how to fit into a maledominated profession. Women in the law was a new frontier where ideas of equal rights and diversity were years away. While most of their contemporaries stayed home to raise families or held more traditional jobs, what drove these women to venture outside typical female roles? What kept them going when doors to the all-male, white shoe law firms were closed politely, yet firmly, in their faces? The Women Trailblazers in the Law Project, a public service program of the American Bar Association’s Senior Lawyers Division and Commission on Women in the Profession, sought to answer these questions. Through an interview format, the Trailblazers Project captures the life stories of these female pioneers in their own voices as they recount their trials as well as their triumphs. Two of these oral histories tell of paths forged right here in Houston. One, by the Honorable Carolyn Dineen King, the first female Chief Judge of the Fifth Circuit, and
the other by Carol Dinkins, the first female partner at Vinson & Elkins and first female U.S. Deputy Attorney General. The Honorable Carolyn Dineen King Carolyn King was born in Syracuse, New York in 1938, and moved to Milwaukee in the eighth grade. In addition to excelling academically (“it was not acceptable in my family to come home with anything less than an A”), she volunteered every summer starting at age thirteen. “My father’s view was that you had to tithe your time as well as your money.” After high school, she enrolled in Smith College where her generation was “expected to graduate with a Mrs. Degree” or go on to the Katharine Gibbs School to become secretaries. Instead, after graduating summa cum laude in 1959 and taking the MCAT, the LSAT and the Graduate Record Exam, King chose Yale law school.
King was one of five women out of 175 in the class of 1962. “I never really knew why I was in law school my first and second year…I just didn’t know why I was there except that it was the only alternative to the Katharine Gibbs School.” But in 1961, after spending the summer as a participant in an honors program with the Department of Justice during the Kennedy Administration, that changed. “All of a sudden that summer I found out what it was like to be a lawyer and I was just smitten.” King was also smitten with a classmate. They married before her third year. Not wanting to raise a family in New York, after graduation they settled on Houston because it “offered the best prospects for the development of a good corporate law practice with the challenges of a New York practice.” King’s first impression of Houston was from an airplane window. Seeing gas flaring at the refineries, she thought the city was on fire. Once on land, while her husband interviewed at Baker Botts, she interviewed with the United States Attorney who had a hat tree full of Stetsons in his office. “I had never seen a grown up in cowboy boots, and he had a big belt with a buckle on it.” She didn’t get the job because he said he “wasn’t up to hiring him a woman yet.” King interviewed at Fulbright and Jaworski, where they offered to hire her for collection work at half what they paid the men. She told Leon Jaworski she did not want to do collection work or work for half pay. After a long pause, Jaworski agreed to hire her at what they were paying the men and agreed she did not have to do collection work. “[S]ometimes just saying no is the right thing to do because it then calls upon somebody to come up with the best that he can.” In the corporate section, she billed between 2,500 and 3,000 hours a year, loving every minute. “I loved practicing law, I mean, to me that was like eating ice cream 24-7.” In 1968, she had the first of three sons, hiring an English nanny and going back to work three weeks later. “There was no such thing as a maternity leave… thehoustonlawyer.com
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they never had this experience before of a woman lawyer who had a baby while working for the law firm, so it was treated like a heart attack…you just came back when you were well.” But at 34, at a time when “everyone made partner at Fulbright,” King was told without explanation that she would not make partner. Forcing the issue with Leon Jaworski, she concluded that she had committed ten years of her life to the firm while they were operating on the unspoken premise that she would eventually leave to stay home with her family. The idea of making her partner had never been considered. She quit on the spot. “I would like to say that I was, you know, grave and steely and all that but I wasn’t. I was crying, I was tearing—oh, my God, what a sight I make when I cry, too.” King landed at Childs, Fortenbach, Beck & Guyton in 1972. To her surprise, and that of Fulbright’s, several large corporate clients came with her and her practice flourished. “It took me two years to emerge from the emotional devastation that being passed over for partner at Fulbright resulted in. It took me many more years simply to accept the fact that a decision had been made for me that was different than the decision that would have been made for a man.” Her career took a major turn in 1979 when President Carter decided to appoint a woman to the Fifth Circuit. She was reluctant to leave her law practice, but realized the appointment was another opportunity for community service. “The plan was to do it for ten years, then do something else.” Over 35 years later, King is still on the Fifth Circuit. She has earned a reputation for cutting right to the issue at oral argument and has authored three decades worth of important opinions, some with billions of dollars on the line, some with lives on the line. For instance, based on her dissenting opinion in a petition for a writ of habeas corpus where the state withheld evidence, the Supreme Court granted certiorari and reversed the decision. “I remember going through all of the evidence for several days. I just laid it out on the floor 32
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of my office and went through it all on my hands and knees.” Meeting Justice Souter years later, he remarked “Without you, that man would be dead.” As Chief Judge from 1999 to 2006, she worked for two years developing the Southwest Border Initiative to fix a severely overworked court system covering three circuits from Brownsville to San Diego. As a member of the Executive Committee of the Judicial Conference, she developed a critical cost containment strategy with Chief Justice Rehnquist as a key ally. She initiated disaster planning for the courts just before Hurricane Katrina hit New Orleans. With all of the district judges dispossessed, she worked quickly to amend the U.S. Code so courts could conduct business outside their district, then oversaw the temporary move of the Fifth Circuit to Houston, relocating offices and families and becoming “pretty good at dealing with apartment locators.” Finding life as an appellate judge to be somewhat isolating, she has made it a point to stay involved in the community in other ways because “the nonprofits have nourished me at every state of my life.” She has served in various leadership positions with the United Way, Baylor College of Medicine, the American Law Institute, South Texas College of Law and the University of St. Thomas. “I had been passed over for partner in 1972…and in seven years, we had gone from a country in which being a woman was a real liability to a situation where being a woman was apparently a tremendous asset. As far as I was concerned, it was irrelevant—both times.” Carol E. Dinkins For Carol Dinkins, in addition to ambition and intellect, a key to her success was the proverbial being in the right place at the right time, ironically because she was a
woman. Dinkins began her law career before she could read, sharpening pencils in her father’s law office in Mathis, Texas. The summers she was in high school, she filled in as secretary when his regular secretary, also the bookkeeper for the cotton gin, was too busy to do both. Growing up in a small town, Dinkins felt flush with opportunity. “Because there were only 51 people in my high school graduating class, one had an opportunity to do anything we wanted to. And so, to have a band—as many of us as could carry a tune or maybe just a horn got to be in band. And to have a choir—if you could carry a tune, you could sing in the choir. And so I was able to do a lot of different things that I didn’t have to be really good at, just really enthusiastic about.” During her senior year Dinkins was drum major, leading the band in routines with baton and whistle. During one performance, she gave the wrong signal. Part of the band followed her signal while another part followed the original routine. Perhaps foreshadowing a future in the federal government, Dinkins chewed out those who failed to follow her signal. “The main thing to do is to follow the drum major—and if the drum major makes a mistake, we’ll all make the mistake together. But if you keep that rule in mind, then at least I’ll know where we all are and not be going in two different directions.” In the fall of 1964, Dinkins enrolled at the University of Texas. Her plan was to earn her undergraduate degree followed by a law degree, a plan that marriage and pregnancy could not derail. She married the summer before junior year and gave birth to a daughter the summer after graduation. She enrolled at UT School of Law in the fall of 1968 where there were “9 or 10 women out of 130 or 140 students.” Her husband, a third year law student, arranged their schedules so she took courses in the morning, he took his in the afternoon, and they would “trade the baby in the parking lot at lunch time.” Dinkins transferred to the University of Houston, one of three women in her class,
after her husband took a job in Houston. “I was so focused on making my grades so that I could write for the Law Review because that was one of my ambitions, and taking care of the baby, and you know, that’s all I did were those two things.” During her third year, she sought a clerkship with Vinson & Elkins (V&E) but was not invited to the firm for an interview. “I wasn’t discouraged…it was just so clear that it was going to take a while for the firms to adjust to the fact that the new wave of lawyers were going to be female and in skirts.” During her last semester, Dinkins accepted a job with the professor heading the newly-created Texas Law Institute of Coastal and Marine Resources. He was specifically looking for a woman for the position, thinking he would have “better prospects with a woman because she might have family obligations and not be so intent on getting with one of the big law firms.” “I said this is perfect because I love property law, I love the coast, I love the water, and I really want to learn a brand new area of law so that it won’t be easy for a law firm not to take a hard look at me.” After taking the bar exam while being so pregnant she could barely reach the table, Dinkins started working at the Institute, which sponsored conferences, hired experts to write articles on matters like water rights, and worked to help create a coastal zone management program. Industrial, urban and coastal development in Texas was taking off, “[s]o there were a lot of opportunities for things to be regulated and for things that were regulated to be authorized by government permits of other activities.” She was on the front lines of developing law that up until then did not exist, gaining unique expertise and making valuable contacts. In 1973, after two years at the Institute, she sought new challenges. V&E was looking for help, and this time she got the job. Having been told that the firm did not practice coastal and marine law, she was slotted for the public finance section. But by the time she arrived, three of the firm’s
big clients needed advice on coastal issues. She was immediately sent to Austin, alone, to meet with state agencies about one of those client’s problems, the only person in the firm who knew that area of law. In her early years at V&E, Dinkins lobbied for legislation that resulted in the Surface Mining and Reclamation Act. She helped clients draft forms necessary to apply for permits in environmentally sensitive areas. On behalf of a sports fisherman, she drafted a bill to regulate fin fishing on the Texas coast because redfish were being depleted. She represented commercial shell dredging interests and was hired by Perry Bass and George Mitchell to provide input on their interests to the thendeveloping state coastal zone management program. She worked on projects involving deepwater ports, huge land developments, power plant siting and reservoir construction. As an associate, she found herself pulling partners in to work on her cases, rather than the other way around. “One of the things that was so unique about what I did was that the clients had to come to me because there was nobody else anywhere that did what I did.” On the home front, Dinkins had fulltime housekeepers. She woke at 4 am, working until her daughters woke at 6:30 am. They went to school in the mornings and she arranged carpools with other mothers to bring them home. “I tell young women now that they shouldn’t try to do everything, that when I was an associate here at the firm, all I did was practice law and deal with my children and husband.” The first year she was up for partner, she was passed over. “I am sure that there were times in my anger that I thought it was because I was a woman and that it was easier to tell a woman no than a man no, but... that really didn’t seem to me to be a factor in the decision making.” The next year, 1979, she made partner. For the ceremony, “I went out and bought a red designer suit and had in my mind that I was going to look so different anyway from the rest of the partners, just by virtue of wearing a skirt, that I would make a very bold statement in my red suit. And I
had a good time buying that suit, but I had an even better time wearing it.” When asked how she felt being the first woman partner, she realized the thought had never occurred to her before. “By that point in time, I just, you know, had it in my mind that it was a thing that would be accomplished and it had to be done.” Dinkins would go on to be the first woman section head and first woman on the management committee at V&E in addition to a long list of government appointments that included Assistant Attorney General for the Environment and Natural Resources Department of the U.S. Department of Justice and Deputy Attorney General, at the time the highest-ranking woman at the Justice Department. During her tenure as its chief, the Environment Division at Justice implemented enforcement of the then-newly created Superfund program that governs cleanup of inactive hazardous waste sites and instituted the seminal program to prosecute environmental crimes under numerous federal statutes. Upon her return to private practice, Dinkins defended clients in federal environmental enforcement actions, often ones attendant upon incidents that were crisis events, or ones involving novel applications or interpretations of federal environmental laws. “I don’t get appointments because I’m a woman but I’m on the list and they are glad to see a woman on the list. I think it’s not an insignificant matter but it’s not the deciding matter, I suspect.” The paths forged by these two women trailblazers tell the story of how historical change requires unrelenting effort and the will to conquer the consequences of being different. Judithe Little is counsel at Haynes and Boone, LLP, where she practices corporate finance and securities law, among other areas. For more on the Women Trailblazers in the Law Project, visit: http://www.americanbar. org/groups/senior_lawyers/resources/ women_trailblazers_project.html. thehoustonlawyer.com
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2016 Pro Bono Awards
Outstanding Pro Bono Service Honored by Bench and Bar
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arris County judges and attorneys came together to recognize outThe 2016 Harris County Bench Bar Pro Bono Award Winners – From left: Harris County Administrative Judge Robert Schaffer of the 152nd District Court; Elizabeth Ellis and Bruce Coane, representing Coane & Asstanding pro bono service by presociates; Donna Petrone and Susan Sanchez, representing Exxon Mobil Corporation’s Legal Department; Lan senting the annual Harris County Nguyen; Grant Harvey and Aundrea Gulley, representing Gibbs & Bruns LLP; Ellyn Josef and Harry Reasoner, representing Vinson & Elkins LLP; and HBA President Laura Gibson. Bench Bar Pro Bono Awards on May 2. The awards program was established to recogAssociation Military Assistance Program. legal representation for clients with limited nize outstanding pro bono serVolunteers handled cases involving immifinancial means, as well as legal vice through local legal service gration, divorce and child custody, taxes and assistance for non-profit orgaproviders and to encourage law guardianship. nizations. Attorneys devoted firms, corporate legal depart10,202.75 hours to pro bono ments and individual attorneys Individual – Lan T. Nguyen legal work through the Houston to volunteer direct legal services Lan Nguyen is managing partner in a firm office, handling cases in legal to low-income Harris County of four attorneys, yet she individually proareas including guardianship, residents. A committee of seven vided 358.80 hours of pro bono service durestate planning and probate, judges and six attorneys, including 2015. Lan’s outstanding pro bono work family law, immigration law, Anthony Graves talks about ing representatives from the the impact that pro bono intellectual property law, litigahas been recognized by the Houston Bar Houston Bar Association, the legal service had on his life. tion and civil rights, and crimiFoundation, the HBA’s Houston Volunteer Houston Lawyers Association, the Asian Lawyers and other legal organizations, and nal/juvenile law. American Bar Association and the Hispanic her long history of pro bono service earned Bar Association of Houston, reviewed nomiher the American Bar Association’s Pro Bono Mid-size Firm – Gibbs & Bruns LLP nations and selected the recipients in several Publico Award in 2010. During 2015, 30 attorneys from Gibbs & categories. Bruns logged 3,151.75 pro bono hours. The The keynote speaker was Anthony Graves, Large Corporation – Exxon Mobil firm’s pro bono cases included an inversethe 138th death row exonoree in America, Corporation Law Department condemnation suit, a prisoner civil rights who recounted the impact that pro bono leIn 2015, approximately 10,000 ExxonMobil suit, divorce and child custody, financial gal services had on his life. employees relocated to the company’s new problems, medical and estate planning docThe award recipients were honored with a Houston campus. Yet despite the distractions uments, termination of parental rights and ceremony and luncheon at the Civil Courtof the relocation, 160 ExxonMobil volunteers adoption, a student loan matter, and rephouse. In addition to receiving a custom-dedevoted more than 3,470 pro bono hours to resentation of veterans. Gibbs & Bruns acsigned crystal and wood award, their names serve veterans, seniors, children, persons cepted numerous cases through the HBA’s are featured on permanent plaques in the affected by domestic violence and other unHouston Volunteer Lawyers. lobbies of the Civil Courthouse, Criminal served, low-income area residents through Justice Center and Juvenile Justice Center in direct representation, nonprofit assistance Small Firm – Coane & Associates, PLLC downtown Houston. and legal clinics. The legal department’s pro The five-attorney firm of Coane & Associates bono contributions actually increased over provided 465.9 hours of pro bono legal serLarge Firm – Vinson & Elkins LLP 2014, when they also received this recognivices in 2015. The firm’s attorneys accepted In 2015, there were 192 Vinson & Elkins attion from the Harris County Bench Bar Pro cases from Houston Volunteer Lawyers, as torneys who participated in providing direct Bono Awards Committee. well as the American Immigration Lawyers
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By Tara Shockley
HBAA Rededicates ‘Family’ Sculpture in Juvenile Justice Center
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n 1988, after five years of dedicated and few Houstonians visited the Family planning, the Houston Bar AssociaLaw Center. The HBAA formed a Rededition Auxiliary (HBAA) launched its cation Committee, co-chaired by CarLeon Jaworski Award Program to mela Frels, Jane Larkin and Sandy Norrecognize excellence in community serris. The committee worked with Harris vice by members of the legal profession. The award was named for Leon Jaworski, the Watergate and World War II war crimes prosecutor whose life and achievements reflected the deep commitment to public service that symbolized the spirit of the award. Participating in the rededication ceremony were, from left: Lisa Sharp, HBAA The outward 2017-2018 president-elect nominee; Lisa Ganucheau, 2016-2017 HBAA presisymbol of the award dent; Wendy Dawson, 2015-2016 HBAA president; Hon. Robert Schaffer, chief administrative judge of Harris County; Laura Gibson, president of the Houston was the 900-pound Bar Association; and Jane Larkin, Carmela Frels and Sandy Norris, co-chairs of bronze sculpture, the Rededication Committee. “Family,” by internationally acclaimed County Commissioners Court and Chief Houston artist and teacher, Pat Foley. Administrative Judge Robert Schaffer to The sculpture represents a family envelarrange for the sculpture to move to an oped within the protective arm of the equally relevant location in the Harris law. The HBAA presented the sculpture County Juvenile Justice Center. as a gift to Harris County in commemoBecause of the planning and work ration of the Leon Jaworski Award, and a that went into moving the sculpture, small replica is presented to each award the HBAA suspended the Leon Jaworski recipient. Award program for one year, but will reFittingly, the sculpture was installed sume accepting nominations for the 2017 in 1988 in the lobby of the Harris County award. Family Law Center. In recent years, howOn March 30, 2016 the HBAA redediever, the Harris County Family Courts cated the sculpture in the lobby of the moved to the newer Civil Courthouse, Juvenile Justice Center, with members of
the HBAA, the Houston Bar Association, the judiciary and the county in attendance. In its new home, “Family” continues to represent the nomination criteria for the Leon Jaworski Award: “The award is given to a member in good standing of the Houston Bar Association, who is civically minded, professionally capable, socially and culturally concerned, family oriented, morally and spiritually aware and who has demonstrated these qualities over a significant number of years.” Past Recipients of the HBAA Leon Jaworski Award *1988 Thomas D. Anderson *1989 Tom Martin Davis *1990 Herman P. Pressler *1991 William C. Harvin 1992 Gibson Gayle, Jr. *1993 Gail Whitcomb *1994 Sam W. Davis, Jr. 1995 Wyatt H. Heard *1996 Searcy Bracewell *1997 Charles A. Saunders 1998 R. Bruce LaBoon 1999 J. Kent Friedman 2000 E. William Barnett 2001 Daniel C. Arnold 2002 Harry M. Reasoner 2003 Neal S. Manne 2004 Julius Glickman 2005 Harry Gee, Jr. 2006 Charles Szalkowski 2007 Jonathan Day 2008 Scott J. Atlas 2009 Hon. Ewing Werlein, Jr. 2010 Lynne Liberato 2011 Carol Vance 2012 Kelly Frels 2013 Charles C. Foster 2014 Rufus P. Cormier, Jr. 2015 William K. Kroger *Deceased
Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer. thehoustonlawyer.com
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Law Week 2016:
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Miranda: More Than Words
he Houston Bar Association by 200 adults and students. celebrated Law Week with pro• A Special Day at the Courthouse for grams that educated the public 170 special needs students and their on the 2016 Law Day focus: teachers, with presentations from loMiranda: More Than Words. cal judges and attorneys. The theme celebrated • Poster Contests open to the 50th anniversary of all elementary and midperhaps the nation’s best dle school students in the U.S. Supreme Court case, Houston area, along with Miranda v. Arizona, higha Photography Contest lighting the procedural and an Essay Contest in protections afforded to all local high schools. Postof us by the U.S. Constitu- Daniella Landers at the Miranda re-enactment ers, photos and the wintion through the Miranda Warning. ning essay were displayed in 11 office The Law Week Committee was cobuildings downtown for two weeks chaired by Daniella D. Landers and Karsurrounding Law Day. The winning en Lukin. The co-chairs and committee students, their parents and teachers planned a wide range of activities and edwere recognized at the annual HYLA/ ucational programs to commemorate this HYLF Law Day Luncheon on May 3. celebration of the rule of law. Programs There were 463 entries overall. included: • Poster workshops in three commu• A re-enactment of the final Supreme nity centers in partnership with the Court Arguments in Miranda v. ArizoHouston Lawyers Association, the na at the 1910 Courthouse attended Hispanic Bar Association, the Mexican American Bar Association and the Asian American Bar Association. • HBA volunteers reading the book Today on Election Day to 8,650 K-2nd graders in 100 schools in 19 Houstonarea school districts. • Interactive “Dialogues” on the Miran-
Law Day Contest Winners
The HBA recognized the winners of its Law Week Poster, Essay and Photography Contests at the Houston Young Lawyers Association Law Day Luncheon on May 3. Pictured here are the winners along with contest underwriters Blake Pratz, Jennifer Moore and Cindy Pickett of the Pratz Simmons Group at UBS; HBA President Laura Gibson; and Christin McConnell Chandler of Stratos Legal Services.
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da Warning that reached 550 students in 10 high schools, led by teams that included a judge, an attorney and a law student. • A Naturalization Ceremony were HBA President Laura Gibson welcomed almost 2,000 new citizens and the HBA distributed information about public services • A special LegalLine program during the entire week of May 2-6 to assist those affected by April floods in Houston. On Wednesday, May 4, LegalLine was extended until 9 p.m. • Copies of the U.S. Constitution provided to all citizens who reported for jury duty the morning of May 5. HBA President Laura Gibson, Harris County Administrative Judge Robert Schaffer and District Clerk Chris Daniel spoke to citizens and personally passed out the Constitutions.
Cash prizes for students and their teachers in the Poster, Photography and Essay Contests were generously underwritten by the Pratz Simmons Group at UBS, Stratos Legal Services, Andrews Kurth LLP, Daniella Landers, and Karen Lukin.
Miranda Reenactment
Naturalization Ceremony
Karen Lukin, Law Week co-chair, shares information on legal and educational services available through the HBA with new citizens during the Law Day Naturalization Ceremony.
To commemorate the landmark case of Miranda v. Arizona, an all-volunteer cast from Houston’s legal community performed a reenactment of the 1966 oral arguments before the Supreme Court of the United States. Narrators Daniella Landers, Carmen Roe, Hon. Joe Villarreal, and Michael Rahmn set the stage, then local judges took on the roles of the nine members of the Supreme Court and attorneys played the four advocates.
Jury Service
To commemorate Law Day, HBA President Laura Gibson, Administrative Judge Robert Schaffer and District Clerk Chris Daniel distributed copies of the Constitution to citizens who reported for morning jury duty on May 5.
Law Week Dialogues on Freedom
Justice Ken Wise and Karen Lukin, along with law students Nick Brown and Savana Dearman, gave an interactive presentation on Miranda to students at Kingwood High School.
Law Week Legal Line
The HBA extended the hours for LegalLine on Wednesday, May 4, giving callers the opportunity to talk to attorneys until 9:00 p.m. Volunteers answering the phone lines included a group from Marathon Oil, led by general counsel, Sylvia Kerrigan.
Law Week Readings
Attorneys and judges read the book, Today on Election Day, to 8,650 K-2nd graders from April 20 through May 20. Just a few of the volunteers are pictured here with students.
Suewan Johnson at Glen Loch Elementary School in Conroe ISD
Bryon Rice at Bethune Academy in Aldine ISD
Jennifer Hasley at Shearn Elementary School in Houston ISD
Teresa Messer at Link Elementary School in Spring ISD
First Place, Houston Bar Association Law Day Essay Contest
Miranda v. Arizona and Equal Treatment O By Nathalie Cruz, 11th Grade, High School for Law Enforcement and Criminal Justice
ne of the most valued ideals of the United States is that all of its citizens and courts treasure that everyone is innocent until proven guilty. The only way to actually uphold this ideal and conserve it is to treat all people equally, even if they are suspected of doing something wrong. One way to let people know they have this right is to actually tell them what their rights are. The case Miranda v. Arizona made sure that everyone that was
arrested knew their rights. In the actual case of Miranda v. Arizona, the criminal, Ernesto Miranda, confessed to kidnapping and raping a young woman while under police interrogation. He was found guilty in part due to this confession. Even though he signed the confession, he did not know he had the right to remain silent or that he could have an attorney. Because of this, he made an appeal to the Supreme Court with the claim that his 5th Amendment right was denied and that his
confession was unconstitutional because he didn’t know he could have chosen not to do that. The Court ruled in his favor and the confession was made moot because it was declared unconstitutional. Even so, the criminal court still found him guilty and he went to jail anyway. Miranda v. Arizona is a significant case because the Supreme Court ruled that criminal suspects must be informed of their constitutional right to protection Continued on page 49
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31st John J. Eikenburg Law Week Fun Run Benefits The Center
he John J. Eikenburg Law Week Fun Run on March 12th raised $57,830 for The Center, a nonprofit agency that provides opportunities that promote individual choice, personal growth and community involvement for persons with developmental disabilities so they may reach their maximum potential. This brings the total to $1,270,376 in contributions to The Center over the life of the race. More than 600 runners and walkers participated in the
Runners get ready for the start of the 8K race.
Members of the Eikenburg family attended to support the race, named for the late John J. Eikenburg, who started the event as HBA president. 38
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event in downtown’s Sam Houston Park. Named for the HBA president who founded the race in 1985, the John J. Eikenburg Law Week Fun Run is truly a team effort that involves many months of planning and coordination. Special thanks to race directors Susan Oehl, Kara Philbin and Zach Wolfe. Photos by Anthony Rathbun Photography.
HBA President Laura Gibson and emcee Lee Jolly welcome participants to the 31st Eikenburg Law Week Fun Run.
Pillsbury Winthrop Shaw Pittman LLP took home the President’s Trophy for the fastest law firm team. Runners were, from left, Adam Residents of The Center supported the race by Weaver, Andrew Strong and Zeshan Malik. participating in the family walk.
Law Week Fun Run Sponsors Gold Sponsor Anne & Don Fizer Foundation Exxon Mobil Corporation KoonsFuller, P.C. Isabelle & Eric Mayer Norton Rose Fulbright US LLP Serpe, Jones, Andrews, Callendar & Bell, PLLC Vinson & Elkins LLP Silver Sponsor Amicus Search Group Andrews Kurth LLP Archer Solutions Baker Botts L.L.P. BakerHostetler BDO Consulting Beck Redden LLP BRG - Berkeley Research Group Blank Rome LLP BoyarMiller Bracewell LLP BWA Video, Inc. Brenda & Joe Cialone Fernelius Alvarez & Simon PLLC Fullenweider Wilhite Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone Houston Bar Association Family Law Section Jenkins & Kamin, L.L.P. Johnson, Trent, West & Taylor, L.L.P. Jones Day King & Spalding LLP Law Office of Diane St. Yves PLLC Legal Directories Publishing Company, Inc. Morgan, Lewis & Bockius LLP Nathan Sommers Jacobs
Nell McCallum & Associates, Inc. Paul Hastings LLP Shannon, Gracey, Ratliff & Miller, LLP Shook Hardy & Bacon, L.L.P. Sidley Austin LLP Strasburger & Price, LLP Tindall England PC Mark Wawro & Melanie Gray Friends of Fun Run Johnny & Nataya Carter Joe & Amy Grinstein Charles & Erica Harris Houston Bar Association Auxiliary Charitable Fund, Inc. Hon. Erin Lunceford Neal & Nancy Manne Hon. Debra I. Mayfield Shawn & Alicia Raymond Jonathan & Jeannie Ross In Kind Sponsors Buffalo Specialties Copy Source One Doug Teel Faust Distributing Company Fleet Feet Gainsborough Waste Texas Outhouse Inc. Grand Old Grizzly Nothing Bundt Cakes Constable Alan Rosen and the staff of Precinct 1 The Coca-Cola Company Todd Lonergan Watermill Express Master of Ceremonies Services donated by long-time emcee, Lee Jolly.
To view complete race results and more photos, visit www.hba.org/committees/ john-j-eikenburg-lawweek-fun-run. Photos can be downloaded using password funrun.
H o u s to n L a w y e r s W h o M a d e a D i f f e r e n c e
Lewis W. Cutrer By The Hon. Mark Davidson
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he City of Houston did not grow from a collection of wooden frames on a mosquito-infested bayou to one of the greatest cities in the world without contributions from many people who could, in all fairness, be called city builders. Some of the largest, most needed and longest lasting contributions to our city came from a man who worked for the development and growth of the city for all of his adult life — Lewis Cutrer. As a young lawyer he became involved in municipal law when he was an assistant city attorney. He would later serve as the City Attorney under two different mayors. That knowledge of the powers of a city and the potential use of those powers paid great dividends when he became Mayor in 1957. Realizing that a larger city would require more water than often fell within our city limits, he promoted construction of a dam to create Lake Livingston, which provides water to
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support both household and industrial use for the City of Houston. That water capacity led to many industries locating to Houston, and has enabled population growth for the region and provided jobs for many Houstonians. He realized that the Houston Municipal Airport (now known as Hobby Airport), while adequate for our needs of 1958, Lewis W. Cutrer would not be close to having enough capacity if the city continued to grow. He started the effort to build a modern facility capable of future growth. The result is the airport we know as Bush Intercontinental. Thinking ahead, he helped lobby the Civil Aeronautics Commission to authorize more flights into the airport. Cutrer was a community leader on other levels. He ordered desegrega-
tion of City Hall Facilities, municipal swimming pools and lunch counters without litigation or court orders. When Jefferson Davis Charity Hospital was exposed as being inadequate, he helped create the Harris County Hospital District. As a leader of the legal profession, he served as president of the Houston Bar Assocation in 1955. He knew more about municipal law than any of his contemporaries, and used that knowledge to help build a better city. In making the growth of the City of Houston possible for years beyond his service as an elected official, he proved himself to be a visionary. To those to have lived in Houston, and to generations that follow, he was an attorney that made a difference.
The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.
COMMITTEE SPOTLIGHT
HBA Historical Committee:
Preserving the History of the Legal Profession in Houston By Marni Magowan Otjen
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ext year will mark the 30th anniversary of the HBA Historical Committee. Since its creation during the 1986-1987 bar year, the broad mission of the Committee has been to research and preserve the history of the HBA and its members. Today the Committee continues in this tradition, but is also working to share with Bar members the amazing wealth of material that has already been collected. The cornerstone of the Historical Committee is the Living History Series. This project, initiated early in the history of the committee, focuses on video interviews of senior members of the Bar. To date, nearly 100 interviews have been completed and more are in the works. The goal of the Living History Series is to preserve the war stories, professional insights, personal memories, and everything else that went into the storied careers of notable Houston lawyers. It is an opportunity to learn what it was like to practice in Houston in a different time, to hear what having that great mentor meant for a career, or what struggles were undertaken to make our own careers possible. The Historical Committee shepherds the Living History Series in a number of ways, including maintaining an archive of completed videos, as well as an ever updated list of potential interviewees. The Committee also works to coordinate new interviews, with either committee members or other Bar members serving as interviewers. The objective is to include a diverse and broad range of perspectives, so there
are no set criteria suggest other ways for interviewing the Living History candidates. Series might be In recent years further expanded the Historical Comor developed. For mittee has broadexample, the Comened its focus, mittee has made seeking to make initial forays into HBA historical maprojects involving terial more accessi- The Living History Project allows viewers to learn more key cases instead ble to all members about some of the Bar’s most interesting members. To of individual lawof the Bar. This pro- view, visit www.hba.org/video/ yers, starting with a cess began with the digitization of tangible panel discussion regarding the Andrea Yates historical records and continued with the trial which the committee intends to use as modernization of the technological format part of a documentary style presentation. for the Living History videos. Today highThe Living History Project is an ever lights of select interviews are available on expanding treasure trove of information the HBA website, as well as links to comabout some of our Bar’s most interesting plete video interviews. members. It is a project that appeals to peoWhen watching these wonderful retrople at every point of their lives and careers. spectives about individual experiences, it For new lawyers, it is a way to learn about is apparent that the most compelling interhow things are done, and the secrets beviews are led by friends or colleagues of the hind professional success. For more senior interviewees. These interviews tend not to lawyers it is often a way to honor those who adhere to a script, or outline, but rather folhave made a difference in their own lives. low a natural, conversational path through While the committee will continue to find a lawyer’s professional and personal jourways to make this amazing material even ney. Because of this, the Historical Commore accessible to the Bar membership, mittee welcomes input from HBA members we hope that anyone who is interested will who are interested in participating in a Livbecome a part of the committee and a coning History project and encourages those tributor to this great project. members to contact the committee and become involved. Marni Magowan Otjen co-chairs the HBA The committee would also welcome Bar Historical Committee and is an HBA Ammembers who might be interested in asbassador. She also is a member of the Board sisting with efforts to review and edit the of Directors for the Dispute Resolution backlog of interviews in the video archive. Center and serves on The Houston Lawyer In addition, Bar members are encouraged to Editorial Board. thehoustonlawyer.com
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OFF THE RECORD
Houston Attorney Chris Stevenson and the Texas Water Safari:
‘I Am NEVER Doing This Again!’
By The Hon. Jeff Work
The Houston Lawyer
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ing the finish line in Seadrift – a mixture of relief, joy and pride. allucinations, dehydration, sleep deprivation, snakes, rapids, logjams – these are all obstacles a person Have you ever suffered any injuries? could face participating in the Texas Water Safari It isn’t really an injury, but I have hallucinations almost every (TWS). Billed as the “World’s Toughest Boat Race,” time I compete. Some years are more inthe TWS starts at San Marcos, tense. In 2008, my first year, my cousin and Texas, which is midway between San AnI had the same hallucination. Between Victonio and Austin, and ends at Seadrift, toria and Tivoli we swore we saw a “River Texas, about 80 miles up the Gulf from City” where the trees along the bank apCorpus Christi. Its route goes down the peared as houses, bridges and castles. We San Marcos River to the Guadalupe River, half expected hobbit-like creatures to pop then across the bay to Seadrift, for a total out. On my last race, one night I thought distance of 260 miles. Depending on the I was seeing a Mardi Gras parade – giant speed of the team and boat, it is a non-stop colorful bobbing heads lining both banks. two to four day canoe trip, with a timeFortunately, none of my hallucinations limit of 100 hours. Last year, there were Chris Stevenson says despite the difficulty, he have been scary, and I’ve come to expect over 200 participants. keeps coming back to compete in the Texas them. During a normal work day, Chris Ste- Water Safari. venson is a managing partner with Adair & Myers, PLLC. HowWhat was your best and worst experience in the TWS? ever, in June each summer, he grabs his paddle, competes, and My best experience was probably my first year. A close second finishes, the TWS, and has done so six almost-consecutive years. would have to be the training season of 2010; ironically, the race, Chris recently answered some questions concerning his particithat same year, was probably my worst experience. That year, I pation. wanted to finish in the Top 15, to be awarded the Safari trophy. I knew I had to team up with others in a boat, so I put together Why did you start competing in the TWS? a six-man team of guys who were like me: solid paddlers but My cousin’s grandfather completed the very first TWS in 1963. unlikely to win on their own. We called ourselves the “Guad My cousin and I always idolized him for it, so we decided to Squad.” For the training, we had a great time on the river. But on compete. We already grew up playing sports together – football, race day, about 60 miles down the river, I became violently ill. fishing, hunting – so this was a natural challenge to do as a team. I lay in the bottom of the boat while my teammates paddled my We spent almost a year training, and in June 2008, we completed sorry carcass down the river. We also ended up getting lost in our first Safari. a fetid swamp. To add insult to injury, we finished 17th, outside of the Top 15. Why do you still keep doing it? Strange as it seems, the Safari is very addictive. I have completed Is it time to hang up your paddle? the Safari six times, and after several of them, the first words out Definitely not. It’s amazing just finishing the Texas Water Safari, of my mouth were some form of, “I am NEVER doing this again.” but I’m still chasing that trophy. All I can say is that it feels really My wife has learned to ignore me when I say this. good and it’s definitely something that keeps me coming back. I think there must be some sort of Safari amnesia that sets in and makes me forget all of the pain, leaving only good memories. I enjoy the exertion of paddling and the technical aspects of maThe Hon. Jeff Work is a former judge of Harris County State neuvering a boat around obstacles. The Safari has also become a District Courts. He practices as Work Law Firm as a litigasocial outlet, and I’ve made some truly remarkable friends. The tor, mediator, and arbitrator. He is an associate editor on The last reason, and maybe the biggest, is the feeling I get from reachHouston Lawyer editorial board. 42
May/June 2016
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A Profile
in pro f e s s io n ali s m
P
The Honorable Harvey G. Brown, Jr Justice, First Court of Appeals
rofessionalism includes three fundamental qualities: service, integrity, and courage.
Service. We serve our clients by providing quality legal work and zealous advocacy. Dedicated service requires continuously seeking to master our chosen field of practice, thoroughly preparing, willingly sacrificing our “personal time” when necessary, and constantly putting our clients’ interests above our own. We serve our profession by engaging in activities that enhance it, such as providing pro bono services; working on bar, political, and charitable activities; and serving as mentors. We all need mentors, and we all need to be mentors. We benefit from both roles. Integrity. Our threshold responsibility under the Disciplinary Rules is to “maintain the highest standards of ethical conduct.” This requires that we act with integrity. Generally, integrity means being forthright
and not hiding the ball. Always, it requires acting with personal and intellectual honesty and keeping promises. Our word—whether a passing remark or promise—is our bond. Integrity requires respect for the Law, lawyers, judges, and opposing parties. There is no room for personal attacks or “win at all cost” tactics. Courage. Integrity often requires courage—courage to say no to clients and colleagues. It takes courage to resist fears created by self-doubt, bad facts, weak legal positions, and the risk of losing. Through courage, we admit our fears and avoid its distortion of our thinking and judgment. Judges likewise are called to professionalism. As Supreme Court Justice Robert Jackson observed, taking the judicial robe requires a psychological change to “get into an attitude of deciding other people’s controversies, instead of waging them.... Some never make it—and I am not sure I have.” thehoustonlawyer.com
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LEGAL TRENDS
Property Owners Should Cheer the Texas Supreme Court’s Ruling on Duties Concerning Property Conditions By Jason D. Goff
The Houston Lawyer
T
he case of Occidental Chemical Corp. v. Jason Jenkins will have past property owners sighing in relief. The Texas Supreme Court definitively ruled that a property condition created by a past owner would still be considered a premises liability claim, and thus, the past owner’s duties to warn and make safe would cease upon transfer of the property. Jason Jenkins worked for Equistar Chemicals, L.P. at a chemical plant making triethylene glycol (“TEP”). One of the key steps in the production of TEP is in
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maintaining its acidity while in the production tank – accomplished by injecting acid into the tank through a pressurization device. The device in question was developed and constructed by Occidental Chemical Corporation in 1992. Equistar bought the plant from Occidental in 1998. The accident in question occurred in 2006. The device was operated for 14 years without incident while used by the two companies. Jenkins’ injury occurred during an attempt to inject acid into the tank for the second time in the day. Jenkins was injured when he opened the pressurization pot where the acid was deposited and pressurized. Unknown to Jenkins, the pot was still pressurized and contained some acid from the last injection earlier that day and, upon opening the device, blew acid into Jenkins’ face. Jenkins sued Occidental, among others, based on a theory of negligent design of the device. The jury found that Occidental was negligent in its creation of the device. The trial court, however, found in favor of Occidental in its statute of repose defenses and rendered judgment that Jenkins take nothing. The court of appeals reversed the trial court’s rendered judgment on the statute of repose defenses. In addition to the statute of repose defenses, Occidental argued before the appellate court that it had no duty to Jenkins since the claim against it was a premises liability claim. Occidental posited that it could not owe, nor breach, any duty for Jenkins’ safety since Occidental had transferred the property. The court of appeals disagreed, finding that Jenkins’ claim could survive the transfer of ownership because it was based on Occidental’s negligence in the design of the device. The issue to be determined by the Texas Supreme Court then was whether property owners could owe and breach a duty after they sell the property to another person or entity. The ruling by the appellate court would have property owners owing
duties under both premises-liability and negligence. Occidental again argued that its only duty with respect to the property was that defined under premises liability, namely to make safe or warn of dangerous conditions, and once the property was sold to Equistar, that duty passed to Equistar. Jenkins argued that the ruling in Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962) already determined that the creator of a dangerous condition can remain liable even after relinquishing control over a property. Jenkins also cited to §385 of the Second Restatement of Torts, which states that a person or entity who creates a dangerous condition can still be liable even after the work has been accepted by the owner. The Texas Supreme Court distinguished the Strakos case from the instant case, stating that Strakos involved the actions of an independent contractor who was responsible for the dangerous condition. Because the contractor had a direct hand in the creation of the dangerous condition, the contractor should not escape liability merely because the property owner had accepted the work and taken control of the property. Similarly, the Texas Supreme Court found that section 385 of the Second Restatement of Torts also addressed the work of independent contractors and “other third parties” and dismissed it as irrelevant. The Texas Supreme Court ruled that even where the property owner creates a dangerous condition, the cause of action against the property owner will remain in premises liability regardless of how it is pleaded. Thus, property owners would not be subjected to the roles of duty holders under both theories – i.e, premises liability and negligence. Jason D. Goff is an attorney with Sheehy, Ware and Pappas. His practice is dedicated to trial work where he regularly defends premises owners in a variety of civil litigation claims. He is a member of The Houston Lawyer editorial board.
LEGAL TRENDS
14th Court of Appeals ...an injured Panel “ contract employee interprets can no longer articulate any CPRC negligence theory against a property Chapter owner... ” 95, in light of Abutahoun By Preston Hutson
I
n May 2015, the Texas Supreme Court authored its latest interpretation of TEX. CIV. PRAC. & REM. CODE § 95.00, et seq. In Abutahoun v. Dow Chem. Co., 463 S.W.3d 42 (Tex. 2015), the Court broadly interpreted Chapter 95 to apply to all negligence-based claims made against commercial property owners for injuries suffered by independent contractor employees. That is, an injured contract employee can no longer articulate any negligence theory against a property owner, whether that claim is couched in premises liability or negligent activity, without first establishing both that the property owner retained or exercised control over that employee’s work and that the property owner had actual knowledge of the danger or condition causing the injury. Neither Chapter 95 nor the Abutahoun opinion appears revolutionary. But ap-
pearances can be deceiving, a fact illustrated recently by a three-member panel of the 14th Court of Appeals. Oiltanking Houston, L.P. v. Delgado arose out of a June 2012 explosion at the Oiltanking storage facility near the Houston Ship Channel.1 Before the explosion, Oiltanking hired an independent subcontractor to weld a flange into a preexisting 24-inch pipe used to transport crude oil. After cutting a gap into the pipe, subcontract employees installed a “plumber’s plug” 2-3’ inside the remaining pipe, thus sealing the pipe’s open end and ostensibly allowing the contract employees to weld the flange. Once plugged, an Oiltanking supervisor wiped down the pipe’s exposed end, removing residual hydrocarbons that might endanger the contract welders. And, before the contract welders could begin installing the flange, the Oiltanking supervisor issued a “Hot Work Permit” confirming that “all necessary measures had been taken to ensure the work is carried out safely,” as well as a “Gas-free Certificate” confirming the area to be free of hydrocarbons. Subsequently, Javier Delgado was decapitated when sparks came into contact with leaking hydrocarbon vapors. Tried before the Abutahoun decision, the trial court submitted 3 negligence issues against Oiltanking; negligent undertaking, premises liability, and negligent activity. The jury found for the plaintiffs, awarding over $21 million in actual damages. Oiltanking appealed, primarily contesting the sufficiency of plaintiffs’ evidence to establish its “actual knowledge” of the hydrocarbon vapors. In reversing the verdict, the Panel held the evidence insufficient to prove Oiltanking’s actual awareness of leaking hy-
drocarbon vapors. Applying Abutahoun, the Panel then rendered judgment against plaintiffs’ three negligence issues, explaining that owner’s lack of actual awareness to the specific hazard made other considerations moot: It can be assumed for argument’s sake that the claimants articulated a colorable basis for a negligent activity or negligent undertaking claim by contending that a “hazard arose during the work” performed by L–Con when Oiltanking used inferior methods for excluding hydrocarbon vapors from a hot work area; employed a “very sloppy” hot work permitting process; and used deficient sniff test procedures. Even with this assumption, more is required here after Abutahoun—namely, evidence of actual knowledge. While mindful that it has not been released for publication and therefore subject to revision, withdrawal, or reconsideration by the full Court; Oiltanking offers a revealing window into post-Abutahoun commercial property litigation. Consider, the Panel openly acknowledged both the property owner’s control over the work (it cleaned, tested, and certified the pipe as safe) and its awareness of the “potential” for residual gas. Under a common law negligent activity theory, this evidence would appear to create a fact issue upon both whether the property owner committed affirmative conduct and that conduct’s ultimate contribution to the putative injury. Abutahoun, at least as interpreted by this Panel, renders these findings moot. Preston Hutson is an officer with the firm of LeClair Ryan who specializes in defense litigation involving both commercial property owners and general contractors. He is a member of the editorial board of The Houston Lawyer. Endnotes
1. No. 14014-0158-CV; 2016 W.L. 354439 (Houston [14th Dist.]).
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Media Reviews
The Rise of the Right to Know: Politics and the Culture of Transparency, 1945-1975 By Michael Schudson The Belknap Press of Harvard University, 2015 Reviewed by Taunya Painter
The Houston Lawyer
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NN’s “The Lead” host, Jake Tapper, recently had some challenging words for President Obama. In the midst of a highlypublicized presidential election, the President challenged the media to do a better job at probing candidates. Tapper agreed with the President, but questioned: “Is President Obama the right messenger?” Tapper said the media’s job of probing “has been made far more difficult by his administration than any in recent decades, a far cry from the assurances on transparency he offered as he first took office,” citing an in-depth report by The Washington Post that “Obama hasn’t delivered. In fact, FOIA [the Freedom of Information Act] has been a disaster under his watch.” This exchange is not surprising, as Michael Schudson, author of the book, The Rise of the Right to Know, points out that every American President has had a
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challenge with the media, starting with George Washington. Schudson documents, though, just how far our country has come: the people’s “right to know” is really about someone’s ability to access information about their government, their finances, or their health and livelihood. The United States Constitution grants no such right. Even the few quotes that appear to support such a right, in context, were simply statements about the need for elementary education. Schudson focuses extensively on how the years, 1945-1975, greatly advanced the public’s right to know. First, though, he shows his readers how pervasive the tendency of nondisclosure was, not just in government, but in all aspects of private life, education, and the private sector. One quite shocking example is the field of medicine. As late as the early 1960s, not even 12 percent of doctors would disclose to a patient a cancer diagnosis, and even fewer doctors would disclose possible side-effects or dangers of any surgery or attempt to get an informed consent. Schudson discusses changes in society and education, as well as several major events of the time, that collectively set the stage for transparency initiatives. He concludes, however, that none of these were a sole ignitor of sweeping changes. The real warriors for the people’s right to know are what Schudson calls a sort of “second lieutenant” – he gives the credit not to the most powerful, not to the masses, but to people in the middle that we may have never heard of. By way of example are Esther Peterson and Representative John Moss (D-CA). Peterson made a career out of changing food packaging. In the early 1960s,
consumers were confronted with only marketing on packages. Peterson wanted accurate weights, ingredients, nutritional value, and shelf life. While Peterson had multiple Presidential appointments, she ultimately wielded her greatest power working for the grocery store chain, Giant. Giant went down Peterson’s path of transparency. Consumers responded. Congress responded. Then the entire market flipped toward the consumer’s right to know. Moss is the founding father of the FOIA, and Schudson gives us his story. When Moss was just a new Freshman, he was given a lowly spot on the Post Office committee. He requested some documents from an agency, and they stonewalled. This brush-off lit a fire in his belly to draft FOIA. A colleague described Moss as the “hardest working member of Congress I knew,” recalling a hearing that Moss was chairing, which was still going strong at 10:30 p.m. The electricity went out, and the participants were thrilled, thinking they would finally get to go home. It was pitch black, and Moss said, “Let’s find some candles.” They did, and he carried on. His authenticity helped him get the backing of major media outlets. They helped him charge through all obstacles and later declare that FOIA was “like gaining a fleet of nuclear subs” in the fight for information. The fiftieth anniversary of FOIA is July 4, 2016. This Independence Day is a great time to pick up Schudson’s book. You will understand why it was a positive step for President Obama to be reminded of the public’s right to know, but you will also see a historical context for the confrontations that will no doubt be coming the way of the next President, whomever that may be. Taunya Painter is a business lawyer and a member of the Painter Law Firm PLLC. She is an Associate Editor of The Houston Lawyer.
Media Reviews
Judicial Review in an Objective Legal System By Tara Smith Cambridge University Press, 2015 Reviewed by Michael J. Mazzone
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ara Smith asks, “How should courts interpret the law? By fidelity to the text? To the will of the people? To certain moral ideals?” In Judicial Review in an Objective Legal System, Tara Smith, philosopher of law and professor at the University of Texas at Austin, provides fresh new answers to these longstanding questions. Professor Smith initially clarifies why we should care about judicial review. As she progresses in her book, she succinctly surveys the major theories of review and presents a fresh theory of her own. Professor Smith’s approach rests on her clarifying portrait of objectivity then Smith focuses on the five competing accounts of judicial review that dominate both scholarly and popular debate. “The basic problem with Textualism,” writes Smith, “is that text without context is empty.” Meaning “is not one and the same as words and is not contained entirely inside words.” Meaning requires mental work to grasp and apply. Conceptual thinking is needed. Smith argues that “Textualism fails to appreciate the open-endedness of concepts,” which allows us to correct misunderstandings of meaning “without be-
traying words’ meaning or defying the law” (p. 155). Under Textualism, “judges interpreting a legal text are simply pursuing historical facts about language use.” The subjectivism of Public Un d e r s t a n d i n g Originalism is shown by its interpretation of the concept “commerce” as used in the Constitution: “commerce” means what the public at the time thought commerce meant—without any concern whatsoever for the actual nature of commerce in reality. “Originalists (appropriately) seek to honor the original concept enacted into law but... they do not understand the nature of concepts.” Regarding Democratic Deference she writes that the essence of this approach is that courts should defer to the will of the people. Smith argues that under Democratic Deference the law would be in continual flux based on political winds. If both Progressives and Tea Partiers favor these theories of judicial review (and they do), how is a court to even know what popular will is? Smith next addresses Living Constitutionalism/Perfectionism: The law is to resolve disputes to suit current conditions and today’s morality. The law should be interpreted to advance ideals in current conditions. In her view, Living Constitutionalism is vibrant, not weighed down by past errors, recognizes the role of philosophy, has a better understanding of language and word meaning than the Originalist view, and asserts an active role for judges. But Smith’s critique is that it misunderstands the law itself. It is, she argues, overly philosophical and invites judges
to inappropriately engage in philosophical judgment, promoting the rule of philosophy over the Rule of Law. “Rational interpretation... requires... philosophical thought; it does not require that [judges] assume the role of philosopher kings.” Finally, Smith addresses Minimalism, which urges courts to issue narrow rulings, to steer clear of broad principles and far-reaching implications, and to avoid bright-line rules, abstract theories, and final resolutions. It purports to be neutral on political principles. It is a “jurisprudence of deference.” Smith observes Minimalism’s incoherence. There is no “distinctive, logically unified method of judicial reasoning.” As a result, it is not a genuine guide for judges. Its singular instruction is, “do little.” Smith notes that the Minimalists view Brown v Board of Education and Lawrence v Texas as Minimalist decisions. Minimalism’s “incoherence in conception... necessitates its erratic governance in practice.” In Part II, Smith sets out her own approach. Her proposal includes all of the positive aspects of the other methods of judicial review (transparency, consistency, fidelity to the law’s mission, etc.) while excluding all the negative aspects (subjectivism, irrelevant considerations, popular will, indeterminate and evolving law, etc.). Professor Smith’s proposal breaks through the false dichotomies inherent in the dominant theories of judicial review. Smith has a way of presenting even highly-abstract, complex ideas in everyday, common-sense language that is quite palatable even to lay readers. Michael J. Mazzone is a partner with Haynes and Boone, LLP. He has taught trial advocacy at the University of Houston Law School and has served on the editorial board of The Houston Lawyer magazine. thehoustonlawyer.com
May/June 2016
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HBA Recognized for Outstanding Programs
Miranda v. Arizona and Equal Treatment From page 37
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partnership with the Texas Supreme Court Historical Society, launched a pilot program in which lawyers and judges partnered to teach judicial civics to 7th grade history classes using the book Taming Texas: How Law and Order Came to the Lone Star State by James L. Haley and Marilyn P. Duncan. Nearly 200 lawyers and judges visited 28 schools in nine districts, reaching 9,534 students in 401 classes. This will be an ongoing committee whose work next year will be spread out over the school year, enabling more lawyers and judges to participate. This is the time of year when you have an opportunity to sign up to be a participant in one of our many committees. If you aren’t already a volunteer for Teach Texas, I encourage you to sign up. You can read a digital copy of Taming Texas and download it to your Kindle or e-reader by going to the Texas Supreme Court Historical Society’s website. Finally, as I write this column, the Habitat for Humanity Committee, co-chaired by Benny Agosto, Jr. and Greg Ulmer, is finishing up the construction of our 19th home. Funding of the house was made possible by 193 individual donors, 12 law firms and 18 HBA sections. Please keep an eye out for information about the dedication of the Habitat home. I look forward to this event each year because it is so gratifying to see the deserving family as they cut the ribbon to their new home. In addition to being the right thing to do, volunteering is good for you. People who volunteer feel better physically, mentally and emotionally. Volunteers are better able to manage and lower their stress levels. Volunteers also feel a deeper connection to their communities and to others. Finally, volunteers are healthier. The 2015-2016 Bar year has been tremendously successful, and you deserve a huge round of applause for all that you do. With heartfelt sincerity, I thank you.
against self-incrimination and to an attorney before the police begin their questioning. This is important because this right was guaranteed in the 5th Amendment of the United States Constitution, but most people don’t know about it. This Amendment and this decision were necessary to prevent civilians from being abused by the police and to protect them from being pressured and bullied into confessing to a crime. It also protects people from being abused by the government and from having their property or liberties taken without being properly convicted. By making the Miranda Rights a requirement, people are aware that they are being protected and can be safe from abuse by police or the government. All people should be treated equally, even if they are suspected of some wrongdoing because all people have the right to defend themselves from the court and the police. Even if they do end up being guilty, people should be able to feel like they had a fair case instead of the case being predetermined and the criminal feeling like they were forced into conviction without really being given the chance to defend themselves.
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