THL_SepOct15

2015 Legislative Updates • Litigation

• Criminal Law

• Guardianship

• Family Law

Using Visuals in Appellate Briefs The Error Preservation Cheat Sheet The Top Ten Reasons for Hiring an Appellate Specialist in the Trial Court

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THE HOUSTON

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Volume 53 – Number 2

September/October 2015

Legislative & Appellate Updates

FOCUS

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contents Volume 53 Number 2

September/October 2015

FEATURES

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10

12 16 22

2015 Legislative Updates Litigation

By David V. Wilson II

12

Criminal Law

16

Guardianship

22

Family Law

26

By Nicole DeBorde

By Amanda Kreshover

By Aaron M. Reimer

Appellate Features More than Words Can Say: Using Visuals in Appellate Briefs

By Robert Dubose

30

26

By Christina Crozier

32

30

The Top Ten Reasons for Hiring an Appellate Specialist in the Trial Court

By Robert M. (Randy) Roach, Jr.

32

The Houston Lawyer

The Error Preservation Cheat Sheet

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. ŠThe Houston Bar Association, 2015. All rights reserved.

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September/October 2015

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The 66Th AnnuAl hArvesT CelebrATion Monday, November 16, 2015 7 p.m. - 10 p.m.

River Oaks Country Club 1600 River Oaks Blvd.

Benefiting the Houston Bar Foundation

Please join your colleagues who have committed to suppporting pro bono by underwriting the Harvest Celebration, as of press time.

Harvest Celebration Underwriters

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Hewlett-Packard Co.

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For information on underwriting, visit www.hba.org.

contents Volume 53 Number 2

September/October 2015

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37

departments Message 6 President’s Using Our Gifts To Help Others

Less Fortunate

By LAURA GIBSON the Editor 8 From Change Happens

By Angela L. Dixon Lawyers Who 36 Houston Made a Difference

Maurice Hirsch

By The Hon. Mark Davidson

38

42

in Professionalism 37 ALisaProfile Pennington

Managing Partner, BakerHostetler

the record 38 off Kona Ironman 2015:

Doing it for Emily

By Jonathan C.C. Day SPOTLIGHT 39 COMMITTEE The Juvenile Consequences

Partnership Committee: Giving Juveniles a Second Chance

By The Hon. Josefina M. Rendón

Trends 40 Legal Reigning In the Field of Entities Subject

to the Texas Public Information Act

By Matthew D. Walker

High Court Underscores the Significance of Patent Invalidity and Non-infringement Opinions

By Kyle Musgrove and Mini Kapoor Review 42 Media Dark Places of the Earth Reviewed by The HON. Jeff Work

Social Media and Litigation Practice Guide Reviewed by Al Harrison

The Houston Lawyer

Life Lessons from Legendary Texas Lawyers

44 Litigation MarketPlace 4

September/October 2015

thehoustonlawyer.com

president’s message

By LAURA GIBSON Ogden, Gibson, Broocks, Longoria & Hall, L.L.P.

Using Our Gifts To Help Others Less Fortunate

The Houston Lawyer

A

s fall approaches and we begin thinking of Thanksgiving, we should be mindful that we are uniquely qualified to help those who cannot afford legal services obtain them. The Texas Lawyer’s Creed mandates that as lawyers we are “responsible to assure that all persons have access to competent representation regardless of wealth or position in life.” Creed at I, para. 1. We can provide pro bono services to those in need by taking cases through the Houston Volunteer Lawyers, a non-profit service of the HBA. The mission of HVL is to provide free legal aid to low-income residents of Harris County and to promote volunteerism among lawyers.

Last year, HVL adopted a new vision statement whereby it hopes to lead the Houston legal community’s efforts to provide access to civil justice and facilitate mentoring and support for volunteers through its own programs and also through collaboration with other Houston-area pro bono organizations that share HVL’s mission.

This year, the HVL is focusing on training, mentoring and supporting its volunteers to assist them in providing pro bono services. One of the primary reasons lawyers say they do not take pro bono cases is they fear that they lack skills in certain areas of the law. HVL is deepening the staff attorney involvement in cases, increasing the number of seminars and training opportunities it hosts, and matching staff attorneys with volunteers.

To celebrate and to further increase awareness of the need for pro bono services, HVL will join the American Bar Association’s National Celebration of Pro Bono Services the week of October 25-31. The ABA has invited local bar associations to engage in a “friendly competition” and “social media blitz using the hashtag #ABADayofService.” The HBA and HVL are working together to show the country how Houston lawyers work together to make justice happen.

Since we always do everything bigger in Texas, we are launching our Pro Bono Week efforts the week before the rest of the country on October 21 by hosting a collaborative law CLE. While registration is already filled, we will be sure to host future collaborative law CLEs. On Monday, October 26, we will partner with Center6

September/October 2015

thehoustonlawyer.com

Point Energy, Marathon Oil Company and Texas Children’s Hospital in hosting a special General Counsel’s Breakfast at the Houston Area Women’s Center. Attendees will demonstrate their company’s commitment to supporting pro bono legal services and will participate in a legal advice clinic for the clients of HAWC. This is especially fitting since October is Domestic Violence Awareness Month. Throughout the week, we will host free legal advice clinics and a special family law LegalLine to serve the public.

On Wednesday, October 28, we will encourage companies and firms to participate in “Jeans Day.” Employees will be entitled to wear jeans to work that day by paying $5, which will go to HVL. Last year, a similar effort successfully raised $4,000, which was used to provide further staffing for pro bono services. This year, we hope to have significantly greater participation in “Jeans Day.” We also invite lawyers and their staff members who office in the downtown area to congregate at assigned times in front of their building wearing their team shirts for photos with a justicethemed art car, which we will also take to our three Houston area law schools. To find a full list of our activities during Pro Bono Week, visit www.makejusticehappen.org/probonoweek. During Pro Bono Week, please remember to post photos and tweets regarding your pro bono activities using #houprobono and #ABADayofService.

This also is the time of year that the HBA works with the Houston Bar Foundation to raise money for the Harvest Celebration.

The 66th annual Harvest Celebration will be held on Monday, November 16, 2015. Historically, harvest celebrations are designed to provide an opportunity for people to share with others who are not as fortunate. Please make a contribution to this Harvest Celebration and plan to attend the event. It is the best “see and be seen” lawyer event in Houston!

Take a moment to remind yourselves of all your blessings in this life and make a commitment to give back to others and satisfy your obligation under the Texas Lawyer’s Creed to ensure that all persons have access to legal representation regardless of their financial status. You are truly uniquely qualified to make justice happen. Thank you for your generosity.

Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

September/October 2015

7

from the editor

By Angela L. Dixon Law Office of Angela L. Dixon, PLLC

Associate Editors

Polly Graham Fohn Haynes and Boone, LLP

Change Happens

A

ship law. She addresses alternatives to guardianship, s we all know, one thing that is constant is attorney ad litem duties and issues regarding the ward, change. We have heard this over and over among others. Nicole DeBorde touches on a number of again. Some of us adapt to change well and changes in the criminal law area including new rules take it in stride, while others are reluctant regarding handguns, changes to DWI occupational to change and resist the very thought of it. licenses and petitions for nondisclosure. For more inIn the legal field, changes are inevitable. Laws, formation on all of the legislative changes, please visit regulations and requirements are often up for dethe Texas Legislative Online webpage bate and discussion because many at www.capitol.state.tx.us. are viewed as outdated and in need In the legal field, On the appellate side, Christina of revision. Some situations lend themselves to new laws all together. changes are inevitable. Crozier provides an error preservation cheat sheet that is sure to assist Even though we may question them, Laws, regulations you during trial. If you have ponthose who advocate for them do so dered using visuals in your appelbecause they believe they are best and requirements are late briefs, Robert Dubose’s article for the population as a whole. Senaon effective use of visuals will give tors and Representatives convened often up for debate you some guidance and tips on how together for the 84th Texas legislative they can add clarification and undersession in January and concluded in and discussion standing to your arguments. Finally, June. Over 6,200 bills and resolutions because many Randy Roach discusses the advanwere filed with approximately 1,300 tages of hiring an appellate specialist becoming law. As you can imagine, are viewed as in his piece on the top ten reasons for this represented a vast amount of ishiring one at trial. These articles are sues, everything from weapons, tax outdated and in sure to give you some solid guidance cuts, health care, public education that can be helpful if you find that an and the list goes on. While we cannot need of revision. appeal is necessary. investigate and discuss all of the new Some situations The September/October issue of laws and changes, we have assembled The Houston Lawyer had to be assome practitioners in a few key praclend itself to sembled in a short period of time, tice areas to help us identify some of so I would like to give my thanks the changes that attorneys should be new laws to editorial board members Preston aware of.

Hutson and Jeff Oldham who volunThe current issue actually serves a all together. teered to serve as the guest editors. dual role. In addition to the legislative They worked tirelessly to find authors and coordiupdates, we have included three articles on appellate nated the articles so that our readers could have the law topics. On the legislative update side, David V. array of topics included in this issue. It really takes a Wilson II provides an informative piece on the litigateam working cohesively together to bring this magation changes. He addresses a variety of issues from zine to life so enjoy what the board members have asbestos and silica litigation to punitive damages and prepared for you and we will be back shortly with construction litigation. Aaron Reimer provides insight our “How to Be the Best Lawyer You Can Be” issue into the changes in family law. Amanda Kreshover for November/December. gives detailed information on the changes to guardian-

“

Farrah Martinez Attorney at Law

Taunya Painter Painter Law Firm PLLC

The Houston Lawyer

Hon. Jeff Work Law Offices of Susan E. Cartwright

Jill Yaziji Yaziji Law Firm

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September/October 2015

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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

Nicole Bakare Catherine Bratic Kimberly Chojnacki Jason Goff Al Harrison Preston Hutson Judy Ney Marni Otjen Raymond Panneton David Rusk Zach Wolfe

Farrah Martinez Hon. Jeff Work

Editorial Board

Paul Bowers Heaven Chee Jonathan C.C. Day Amy Hargis Matthew Heberlein Amanda Kreshover Jeff Oldham Suchismita Pahi Hon. Josefina Rendon Matthew Walker

Managing Editor

Tara Shockley

HBA office staff Executive Director

Kay Sim Administrative Assistant

Director of Projects

Receptionist/ Resource Secretary

Projects Assistant

Amanda Piesche

Bonnie Simmons Kristine Pagel

Lucia Valdez

Membership and Technology Services Director

Director of Education

Ashley G. Steininger

Ron Riojas

Continuing Legal Education Assistant

Membership Assistant

Caroline Fitzgerald

Dozie Oheri

Communications Assistant /Web Manager

Communications Director

Tara Shockley

Ariana Ochoa

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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September/October 2015

9

legislative

1

By David V. Wilson II

2015 W Legislative Update for Litigators

hile the 84th Legislature, which convened in January 2015, did not pass contentious bills such as “loser pays” or major new tort reform, it, nonetheless, passed several bills that impact trial lawyers and litigators. This article is a brief survey, highlighting those issues which will impact one’s litigation docket in the coming years.

One bill that will impact every lawyer in Texas is Senate Bill 534. This bill adds to the lawyer’s oath or pledge the obligation “to conduct oneself with integrity and civility in dealing and communicating with the court and all parties.” This bill was signed by Governor Greg Abbott on May 15, 2015. It generally had support from both the plaintiff and defense bars, and reflected a feeling that the ideals of the Texas Lawyers Creed needed to be placed into the oath administered to all new attorneys. Another issue that took the attention of the legislature was forum non conveniens in House Bill 1692. In response to recent Texas Supreme Court cases, the legislature worked to preserve the legal residency exemption for both claimants and derivative claimants.

However, the definition of “plaintiff” now excludes guardians, next friends, administrators and representatives. The new statute requires a trial court to determine the residency of each plaintiff. This is to be undertaken irrespective of the plaintiff’s citizenship or national origin.

The issue of asbestos and silica litigation, which has been a part of the Texas court system for decades, was also addressed. Those plaintiffs who can make asbestos or silica claims upon a bankruptcy trust, must file claims in advance of trial and give notice to each defendant of each claim and the amount of compensation paid by the trust. A defendant receiving this information is authorized to move for a stay of trial in order for the claimant to seek recovery from the trust fund, so

long as the claimant has not previously applied for compensation. Irrespective of any prior confidentiality agreement, the bill makes trust claim information discoverable, relevant, and makes a claim of privilege inapplicable. Moreover, this bill, HB1492, extends the deadline for the multidistrict litigation court to dismiss inactive asbestos claims from August 31 to December 31 of this year.

Moving on to the issue of punitive damages, the only activity in this area had to do with net worth discovery. Under Senate Bill 735, the discoverability of net worth is now held to a threshold test of “substantial likelihood of success on the merits.” The bill also defines “net worth” as consisting of total assets less total liabilities on a date determined by the trial court to be appropriate. One of the issues which may well be litigated in the future is the definition of “substantial likelihood of success.” The legislature did not elect to define this term in Senate Bill 735.

One area of litigation that does not take up much time in state court, but has resulted in voluminous litigation in the federal courts in East Texas, is litigation surrounding patents and intellectual property. Under Senate Bill 1457, the Attorney General of the State of Texas has the authority to sue a bad faith “patent troll” for up to $50,000 in civil penalties.

Significantly, for those facing claims by alleged patent trolls, the bill fails to create a private cause of action which could be pursued by defending parties.

Several bills passed that provided for new immunities from tort suits. House Bill 1666 amends Chapter 78 of the Civil Practices and Remedies Code to provide immunity from suit from a person’s execution of a training exercise in the context of fire and emergency personnel.

Additionally, Chapter 75 of the Civil Practices and Remedies Code was amended by House Bill 2303, which expands liability protection for private land owners with respect to recreational off-highway vehicle activities.

As the nation addresses the purported “obesity crisis,” House Bill 2390 limits the

liability of employers who establish an employee wellness program, unless there is intentional discrimination on the basis of a prior medical condition, age, gender or income level. On a different issue, Senate Bill 450 amends section 101.064 of the Texas Civil Practices and Remedies Code to expand the exception from the Tort Claims Act for liability arising from a condition of land acquired by the entity due to foreclosure on a lien. The expansion covers land acquired by any political subdivision by foreclosure or by conveyance of real property in payment of property taxes. Additionally, section 84.003 of the Civil Practices and Remedies Code was amended by Senate Bill 378 to include licensed social workers in the list of health care providers with immunity from suit for providing volunteer services. In addition, Section 73.005 of the Civil Practices and Remedies Code was amended to apply the “truth defense” to accurate reporting of allegations made by a third party regarding matters of public concern.

For those who represent homeowners associations and defend construction litigation, House Bill 1455 makes a significant change to cases involving condominium regimes. Under this bill, a new section, 82.119 of the Property Code, requires a condominium owners association to obtain an inspection and third party report from a licensed professional engineer identifying defective elements in the common elements. It also requires approval from the unit owners of at least 50 percent of the votes in the association prior to bringing a lawsuit or arbitration proceeding relating to construction or design of the unit’s common elements. In addition, the new section of the Property Code requires the association to provide at least ten days advanced notice of the inspection. Moreover, at least thirty days

“

before the meeting of the unit owners to vote on the litigation or arbitration, the association must provide a copy of the engineer’s report to each owner and a detailed description of the proposed lawsuit or arbitration. Interestingly, the description of the proposed litigation or arbitration cannot be prepared by the proposed law firm for the association. In recognition of the impact of these requirements, limitations are tolled for one year of the date these procedures are initiated, if such procedures were initiated during the final year of the applicable limitations period.

In another development that will impact some construction litigators, House Bill 2049 amends section 271.904 of the Local Government Code to render void and unenforceable a covenant or promise in a contract for engineering and architectural services to which a governmental agency is a party requiring an architect or engineer to defend a party.

The bill also includes a statutorily enumerated standard of care for the engineer or architect. Any attempt to change this standard of care established by statute by contract is declared void and unenforceable by House Bill 2049.

While the results of this session were relatively quiet on the litigation front in comparison to prior sessions, the session nevertheless created a panoply of changes that will impact a wide variety of litigation. Particularly in those areas creating new definitions and standards, one can expect creative counsel to take advantage of such undefined areas until clarity is provided by the appellate courts.

This article is a brief survey, highlighting those issues which will impact one’s litigation docket in the coming years.

”

David V. Wilson II is a shareholder in the law firm of LeClairRyan, based in Houston. He practices in both Texas and Nevada and is a former editor in chief of The Houston Lawyer.

thehoustonlawyer.com

September/October 2015

11

legislative

2

By Nicole DeBorde

2015 T Legislative Update: Criminal Law Highlights

his year’s legislative session resulted in fewer changes for the criminal practitioner than in previous years; still there were far more changes than can be comprehensively covered here.

This article is only an overview of the most significant changes.

Weapons When the amendments take effect in 2016, police should no longer stop people simply because they are openly carrying a handgun. That said, property owners will be able to forbid open carrying of handguns on their property by posting a clear warning that entry onto the property is forbidden for those carrying a handgun. People who do not obey the property owners rule could be prosecuted for Class C misdemeanor trespass unless they are also orally told to depart and fail to do so, in which case the trespass is a Class A misdemeanor.

On August 1, 2016, the amendments will ensure that concealed handguns can be carried by those with concealed handgun licenses at institutions of higher education. Private institutions of higher education may establish rules prohibiting license holders from carrying handguns on campus or at any location in which an activity sponsored by that university is being conducted. Even where allowed, a licensed handgun holder cannot knowingly display the weapon in plain view of another at an institution of higher learning. The new rules concerning open carrying of handguns are likely to spur significant courtroom debate, especially in cases dealing with campus carry issues.

No More Pick-A-Pal Grand Juries Grand juries must now be randomly selected. Previously they could be, and in Harris County generally were, empaneled by invitation from the court, allowing appointed commissioners to choose

grand jurors. The legislature amended Texas Code of Criminal Procedure, art.

19.01 to forbid this practice.

Synthetic Marijuana and Marijuana Amendments to the Texas Health and Safety Code Chapter 481 make illegal all forms of ever-evolving synthetic marijuana and eliminate the affirmative defense of packaging containing the notation “not for human consumption.”

Texas Health and Safety Code Chapter 487 makes it legal to prescribe low-THC cannabis to a patient with intractable epilepsy if the doctor and patient comply with a variety of fairly complex rules.

Inflation and the Legislature For criminal law purposes, the degree of the property crime, and therefore punishment range, is tied to the value of the damage or loss in most cases. This session, the loss thresholds were increased for the first time since 1993. Sections 28.03(b), (f), (h) and (j) of the Texas Penal Code were amended to classify property crimes as follows: Class C misdemeanor below $100 Class B misdemeanor more than $100 but less than $750 Class A misdemeanor more than $750 but less than $2,500 State Jail Felony more than $2,500 but less than $30,000 3rd Degree Felony more than $30,000 but less than $150,000 2nd Degree Felony more than $150,000 but less than $300,000 1st Degree Felony $300,000 or more.

If the damage inflicted was to certain schools or educational facilities, a place of worship, human burial, a public monument or community center providing medical, social or educational programs, the offense is a state jail felony if the destruction was more than $750 but less

than $30,000. There are many property crime statutes in the Penal Code affected by this change, most notably the theft and criminal mischief statutes.

Cell Phone Searches and Search and Seizure Issues of Note To keep pace with the advancement of technology, and in response to a 2014 United States Supreme Court decision dealing with the private nature of the materials we all store in our phones, Article 18.02 of the Texas Code of Criminal Procedure was amended to require law enforcement to get a warrant before accessing a suspect’s cellular phones.

One of several other smaller interesting changes to Article 18 is that police officers can no longer do traffic stop body cavity searches without a warrant.

DWI and Occupational Licenses There were significant changes to the rules surrounding occupational licenses. Ignition interlock devices must remain on each vehicle owned by the subject of a DWI occupational license for the entire duration of the suspension, regardless of any suspension credit for an administration license revocation suspension. Previously, an interlock device could be removed prior to the end of the suspension period. Also of significance, drivers with a DWI occupational license who own multiple vehicles may not choose a single vehicle for ignition interlock installation. Each car owned by the subject of the license must have the device.

On a more positive note for people whose licenses are suspended as a result of a first time DWI, occupational licenses no longer require a showing of need and no longer are restricted by purpose, time or location. The only two requirements are: 1) proof of financial responsibility; and 2) proof that ignition interlocks have been installed in each of their vehicles.

DWI Videos: The recently amended discovery rules

were changed again to allow defense attorneys to give their DWI clients a copy of their DWI videos. Previously, attorneys could not release this vital evidence to their clients without first obtaining permission from the prosecution.

Petitions for Nondisclosure Non-disclosure petitions, after defendants have successfully completed deferred adjudication in certain nonviolent misdemeanors, are now almost automatic with the changes to the Texas Government Code, Chapter 411. Previously they were discretionary with the court. This is a meaningful change because without the granting of a petition for nondisclosure, deferred adjudications remain on the defendant’s criminal history for all to see. Once a petition for nondisclosure has been granted, however, the defendant’s record is no longer public and only accessible by statutorily enumerated agencies. The amendments to the nondisclosure rules provide for the timing and costs as well as the criterion.

Similarly, an amendment to the Texas Family Code 58.03 makes the sealing of a juvenile record automatic two years after the juvenile judgment, as long as: 1) the child has no new or pending criminal charges; and 2) prosecutors do not object. If the State objects, a hearing will be held.

Expunction eligibility was expanded for minors 18 and under by an amendment to the Texas Code of Criminal Procedure Art. 45.0216(h). This amendment allows for the inclusion of those 18 years-old and younger, as opposed to 17 and younger, in certain Class C misdemeanors ending in a dismissal. The amendment also reduces the waiting period or an expunction from two years to one in these limited circumstances.

Leasing to People with Criminal Records Section 92.025 of the Texas Property Code was amended to establish that a cause of action does not accrue against a landlord or a landlord’s manager or agent

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September/October 2015

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solely for leasing a dwelling to a tenant with a criminal record. The bill does not preclude a cause of action for negligence in leasing if the tenant was convicted of certain more serious offenses or is subject to sex offender registration, and the landlord, manager, or agent knew or should have known of the conviction or adjudication. With the ballooning number of people who have a criminal history, this amendment is a step toward allowing productive reentry into society by providing an opportunity for the basic stability of a place to live when property ownership is out of reach.

Reports for Officer Involved Injuries and Deaths A public hot button issue of late, police officers involved in shooting, arrest, or detention-related injuries received some attention this legislative session. New to the Texas Code of Criminal Procedure are articles 2.139 & 2.1395, which spell out the requirements for mandatory reports that must be made within 30 days

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September/October 2015

of an event involving in-custody injuries or deaths or when officers are injured or killed.

Improper Photography Now Invasive Visual Recording The previously named “Improper Photography” statute in the Penal Code is now called “Invasive Visual Recording.”

The legislature amended the law to require courts to allow the defense the discovery of images of children under the age of 14; however, the defense cannot receive copies of this material so long as the prosecution makes the material reasonably available for inspection. The revised law seems likely to face additional Constitutional challenges.

Rule of Lenity The Rule of Lenity was formally codified for offenses not in the Texas Penal Code. The rule of lenity in this regard requires ambiguous criminal laws to be interpreted in favor of the defendants subject to them.

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The Michael Morton Act While largely the same, an amendment to the Texas Code of Criminal Procedure, article. 39.14 makes the disclosure of experts a requirement upon request when made at least 30 days prior to trial. A written motion and signed order granting that motion are no longer necessary.

Conclusion This year’s legislative session brought many interesting new rules, from revenge porn to the new innocence review boards.

The laws discussed here are just a taste of some of these major changes.

Nicole DeBorde is a criminal defense lawyer, practicing in state and federal court with Bires, Schaffer & DeBorde.

A former prosecutor, DeBorde handles criminal matters from the most basic to most complex at the investigation, trial and post-conviction stages. The author would like to thank Patricia Cummings for her assistance.

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Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Greenberg Traurig Jackson Walker LLP Martin Disiere Jefferson & Wisdom LLP Morgan Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts LLP Bracewell & Giuliani LLP Norton Rose Fulbright US LLP Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root, Inc. LyondellBasell Industries MAXXAM, Inc. Newfield Exploration Company Plains All American Pipeline L.P. Rice University S & B Engineers and Constructors, Ltd. Sysco Corporation Texas Children’s Hospital Total E&P USA, Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas

September/October 2015

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legislative

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By Amanda Kreshover

2015 T Legislative Update: Texas Guardianship Law

he 2015 legislative session brought a number of amendments to the Texas guardianship law. This article provides an overview of the major changes to the law that may affect practitioners in this area of practice, though it is not intended to be exhaustive.

Alternatives to Guardianship Section 1002.0015 of the Texas Estates Code is added to provide an alternative to guardianship proceedings. Under this section, guardianship proceedings may be avoided if the following alternatives are pursued: (1) execution of a medical power of attorney; (2) execution of a durable power of attorney; (3) execution of a declaration for mental health treatment; (4) appointment of a representative payee to manage public benefits; (5) establishment of a joint bank account; (6) creation of a management trust or special needs trust; (7) execution of a declaration of guardian before the need arises; or (8) establishment of an alternate form of decision-making.

Supports and Services Similarly, Section 1002.031 is added to provide that guardianship proceedings may be prevented if a proposed ward has sufficient “supports and services” available. Sufficient “supports and services” includes any assistance or resources that allows proposed wards to (1) meet their needs for food, clothing, or shelter; (2) care for their physical or mental health; (3) manage their financial affairs; or (4) make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.

Texas Estates Code Sections 1202.051, 1202.151(a), and 1202.153(c) were amended to expand the grounds by which a modification or termination of guardianship may be sought. If guardianship has already been established, sufficient supports and services is a

valid ground for seeking a modification or termination of guardianship. If sufficient supports and services are available to a ward warranting the need to modify or terminate a guardianship, the ward or any interested person may submit an application to the court requesting that the guardianship be amended or terminated.

Expanded Duties of the Attorney Ad Litem Section 1054.001 of Texas Estates Code expands the role of the attorney ad litem to require the ad litem to discuss with the proposed ward any alternatives to guardianship that may assist the ward in meeting their needs. Additionally, the ad litem is required to discuss with the proposed ward whether the ad litem believes guardianship is necessary, and if the ad litem does believe it is necessary, whether any powers or duties of the guardian should be limited.

Physician’s Certificate Section 1101.103(b) of the Texas Estates Code expands the physician’s evaluation of a proposed ward to include: 1) an assessment of whether supports and services available to the proposed ward could mitigate the need for guardianship; and (2) an assessment of whether it is possible for the ward’s condition to improve, and if so, the time period in which the proposed ward should be reevaluated to determine whether guardianship continues to be necessary. In amended Section 1101.153, the legislature provided that if the physician determines that a reevaluation of the proposed ward is appropriate, the court order must include the date by which the guardian must submit an updated physician’s letter or certificate to the court.

Application Contents and Court Findings Texas Estates Code Section 1101.101 was expanded to provide that an application for guardianship must address: (1) which, if any, alternatives to guardian-

ship were considered prior to filing the application; (2) which, if any, supports and services are available to the ward; and (3) if any available supports and services would avoid the need for guardianship.

Upon hearing the application, the Court must determine by clear and convincing evidence that all alternatives to guardianship, as well as all supports and services available to the proposed ward, were considered and deemed not feasible.

“

ity to make personal decisions regarding their residence.

More Restrictive Care Facility Texas Estates Code Section 1151.051 was amended to expand the duties of a guardian seeking to move a ward to a more restrictive facility. A guardian who has the authority to determine a ward’s residence must notify the court, the ward, and any other individual that has requested notice of any plans to move the ward to a more restrictive care facility. Once notice has been received, the ward or another individual has eight business days to object to the new placement. If an objection is received, the court will hold a hearing to determine the ward’s placement. If no objection is received, and the court has not scheduled a hearing on its own motion, the ward may be moved into the proposed placement.

The major changes made to the law focus predominantly on defining and advocating for alternatives to guardianship proceedings...

Bill of Rights for Wards Section 1151.351 establishes a bill of rights for every ward subject to guardianship. Generally speaking, each ward is entitled to the rights, benefits, responsibilities and privileges granted by the constitution and laws of Texas and the United States, unless otherwise restricted by court order. This section lists a number of specific rights that each practitioner in this area of law should read as well as provide to any court-appointed guardian.

Ward’s Right to Determine Residence For all limited guardianships, it is presumed that wards retain their right to determine their own residence. Consequently, Section 1101.001(b) was amended to require practitioners assisting a guardian to determine if wards are capable of determining their own residence, and if they are not, then to specifically state this fact in the application for guardianship. Additionally, Sections 1101.101(c) and 1101.152(a)-(b) were expanded to require that the court order admitting wards to guardianship state specifically whether a ward lacks capac-

”

Visitation and Communication with Ward and about the Ward Texas Estates Code Section 1151.055 was added to provide that if a guardian prevents a family member, including a spouse, child, sibling, or parent of a ward, from visiting or communicating with a ward, the family member may apply to the court for an order permitting them to visit or communicate with the ward. This section also permits attorney’s fees and court costs to be awarded to the prevailing party.

Similarly, newly added Texas Estates Code Section 1151.056 obligates a guardian to inform family members if the ward: (1) dies; (2) is admitted to a medical facility for more than three days; (3) changes residences; or (4) stays

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at a location other than the ward’s residence for more than one week. A family member may waive his right to these communications, but the waiver must be in writing and submitted by the guardian to the court.

Transferring Guardianship-Bond Requirements Texas Estates Code Sections 1023.005 and 1023.010 were amended to provide that once the Court approves an application to transfer a guardianship to another county, the current bond in effect must remain so until a new bond has been issued or a rider has been filed.

Further, the court to which the new guardianship is transferred must enter an order requiring a new bond be issued made payable to the judge of the new county, or a rider to an existing bond be filed.

Notice Requirements for Financial Records Texas Estates Code Section 1054.155 was added to provide that if an investigation is conducted by a court investigator, and the investigator requests financial information from a financial institution, the court must provide written notice of that fact within five days after receiving the requested information.

Third Party Intervention Newly added Section 1055.003 of the Texas Estates Code permits an interested person to intervene in a guardianship proceeding by filing a timely motion to intervene and serving that motion on all parties.

Criminal Background Check of Proposed Guardian Texas Estates Code Sections 1104.402 and 1104.409 were amended to require family members who wish to be appointed as a guardian of a ward to undergo a criminal background check.

Payment of Guardianship Proceedings Texas Estates Code Section 1155.151

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September/October 2015

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was expanded to allow the costs of a guardianship proceeding to be paid by a management trust created for the benefit of a ward.

Annual Report of the Person Texas Estates Code Section 1163.1011(a) was amended to allow a guardian of the person that must file an annual report to now file an unsworn declaration.

Temporary Guardian Pending Contest Texas Estates Code Section 1251.052(b) was amended to provide that if a temporary guardian is appointed pending a contest, the term of guardianship expires, at the latest, on the nine month anniversary of the date the temporary guardian qualifies, unless the term is extended by court order.

Certification Requirements Texas Estates Code Section 1054.201 was expanded to require that all attorneys who represent an applicant for guardianship must be certified by the

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State Bar of Texas as having completed a course in guardianship law. Additionally, the certification course has been expanded from a three-hour course to a four-hour course, with the extra hour focusing exclusively on alternatives to guardianship and supports and services.

Consequently, all attorney ad litems and attorneys representing a guardian will need to complete a new certification course, or attend a one-hour supplemental CLE and submit an updated certification to the courts in which they practice.

Sale of Minor’s Property Texas Estates Code Section 1351.001 and 1352.002 were expanded to allow the court to appoint an attorney ad litem or a guardian ad litem to act on a minor’s behalf for the purpose of applying for an order to sell a minor’s interest in property, if a minor does not have a parent or managing conservator willing or able to serve, and the minor is not subject to guardianship.

Supported Decision-Making Agreement Act In a newly introduced procedure under Chapter 1357 of the Texas Estates Code, an adult individual who has a disability, but is not fully incapacitated, may designate another individual to serve as a supportive decision maker (“the supporter”). This act is a means to allow individuals with a disability that interferes with some or many aspects of daily life, to select another individual to: (1) assist them with decision making; (2) assist them in accessing and understanding information necessary to make life decisions; and (3) assist them with communicating their decisions to other individuals or institutions. The agreement between the adult and the supporter must spell out what decisions the supporter has the authority to assist with, must be signed by the adult and supporter, and must be notarized or witnessed by two witnesses over the age of 14. The agreement must be entered into without

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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coercion, and can be terminated by either party at any time.

Conclusion The major changes made to the law focus predominantly on defining and advocating for alternatives to guardianship proceedings, as well as expanding and defining a ward’s rights once the ward is subject to guardianship. This, in addition to the new certification requirements for applicants’ attorneys and ad litems, comprise the greatest changes that guardianship practitioners should be apprised of as they continue with their practices.

Amanda Kreshover is a solo practitioner at Kreshover Law. She focuses on estate planning, probate, and guardianship law.

She is a member of the Houston Bar Association, the Real Estate, Probate, and Trust Law Section of the Texas State Bar, and is a certified Attorney Ad Litem.

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September/October 2015

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legislative

4

By Aaron M. Reimer

2015 T Legislative Update: Family Law

he 84th Legislature was notable for family law practitioners, both for the bills that passed and those that were defeated. The following are selected excerpts from the 2015 legislative session.1

TITLE 1. The Marriage Relationship Subtitle a. Marriage Chapter 2. The Marriage Relationship Subchapter B. Public Policy § 1.109. Use of Digitized Signature— ADDED. (a) A digitized signature on an original petition under this title or any other pleading or order in a proceeding under this title satisfies the requirements for and imposes the duties of signatories to pleadings, motions, and other papers identified under Rule 13, Texas Rules of Civil Procedure. (b) A digitized signature under this section may be applied only by, and must remain under the sole control of, the person whose signature is represented.

Subchapter G. Freedom of Religion with Respect to Recognizing or Performing Certain Marriages— ADDED § 2.601. Rights of Certain Religious Organizations— ADDED. A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.

§ 2.602. Discrimination Against Religious Organization Prohibited— ADDED. A refusal to provide services, accommodations, facilities, goods, or privileges under Section 2.601 is not the basis for a civil or criminal cause of action or any other action by this state or a political subdivision of this state to penalize or withhold benefits or privileges, including tax exemptions or governmental contracts, grants, or licenses, from any protected organization or individual.

TITLE 4-Protective Orders and Family Violence Subtitle b. Protective Orders Chapter 81- General Provisions § 81.0015. Presumption— ADDED For purposes of this subtitle, there is a presumption that family violence has occurred and is likely to occur in the future if: (1) the respondent has been convicted of or placed on deferred adjudication community supervision for any of the following offenses against the child for whom the petition is filed: (A) an offense under Title 5, Penal Code, for which the court has made an affirmative finding that the offense involved family violence under Article 42.013, Code of Criminal Procedure; or (B) an offense under Title 6, Penal Code; (2) the respondent’s parental rights with respect to the child have been terminated; and (3) the respondent is seeking or attempting to seek contact with the child.

TITLE 5 –The Parent-Child Relationship & SAPCR Subtitle a. General Provisions Chapter 101. Definitions § 101.0094. Dental Insurance— ADDED “Dental insurance” means insurance coverage that provides preventive dental

care and other dental services, including usual dentist services, office visits, examinations, X-rays, and emergency services, that may be provided through a single service health maintenance organization or other private or public organization.

“

The

§ 101.0094. Dental Support— ADDED “Dental support” means periodic payments or a lump-sum payment made under an order to cover dental expenses, including dental insurance coverage, incurred for the benefit of a child.

than those prohibited by Subsection (a), relating to any party that the mental health professional has personally evaluated. (c) This section does not apply to a suit in which the Department of Family and Protective 84th Services is a party.

Legislature was

CHAPTER 105.

Settings, Hearings notable for & Orders § 105.006(e-2). family law Contents of Final Order— practitioners, ADDED (e-2) An order in a suit both for the that orders child support must contain the bills that following prominently CHAPTER 102. displayed statement passed Filing Suit in boldfaced type, in and those Subchapter C. Filing capital letters, or underSuit § 102.0045(a-1). lined: that were Standing for Sibling— “The court may modify ADDED this order that provides defeated. (a-1) The sibling of a for the support of a child who is separated child, if: from the sibling as the result of an action (1) the circumstances of the child by the Department of Family and Proor a person affected by the order tective Services may file an original suit have materially and substantially as provided by Section 153.551 requestchanged; or ing access to the child, regardless of the (2) it has been three years since the age of the sibling. A court shall expedite order was rendered or last modia suit filed under this subsection. fied and the monthly amount of the child support award under the SUBTITLE A. General Provisions order differs by either 20 percent or Chapter 104. Evidence $100 from the amount that would § 104.008. Certain Testimony be awarded in accordance with the Prohibited— child support guidelines.”

ADDED (a) A person may not offer an expert SUBTITLE B. Suits Affecting the opinion or recommendation relating Parent-Child Relationship to the conservatorship of or possesChapter 153 – Conservatorship, sion of or access to a child at issue in a Possession, and Access suit unless the person has conducted Subchapter A. General Provisions a child custody evaluation relating to § 153.005. Appointment of Sole or Joint the child under Subchapter D, ChapManaging Conservator— ter 107.

AMENDED (b) In a contested suit, a mental health … professional may provide other rel(c) In making an appointment authoevant information and opinions, other rized by this section, the court shall

”

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consider whether, preceding the filing of the suit or during the pendency of the suit: (1) a party engaged in a history or pattern of family violence, as defined

by Section 71.004; (2) a party engaged in a history or pattern of child abuse or child neglect; or (3) a final protective order was rendered against a party.

CHAPTER 154. Child Support Subchapter D. Medical Support and Dental Support for Child—AMENDED § 154.1815. Dental Support Order— ADDED … (b) In a suit affecting the parent-child relationship or in a proceeding under Chapter 159, the court shall render an order for the dental support of the child as provided by this section and Section 154.1825. … (d) In rendering temporary orders,

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September/October 2015

the court shall, except for good cause shown, order that any dental insurance coverage in effect for the child continue in effect pending the rendition of a final order, except that the court may not require the continuation of any dental insurance that is not available to the parent at a reasonable cost to the obligor. If dental insurance coverage is not in effect for the child or if the insurance in effect is not available at a reasonable cost to the obligor, the court shall, except for good cause shown, order dental insurance coverage for the child as provided by Section 154.1825. (e) On rendering a final order the court shall: (1) make specific findings with respect to the manner in which dental insurance coverage is to be provided for the child, in accordance with the priorities identified under Section 154.1825; and (2) except for good cause shown or on agreement of the parties, require

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the parent ordered to provide dental insurance coverage for the child as provided by Section 154.1825 to produce evidence to the court’s satisfaction that the parent has applied for or secured dental insurance or has otherwise taken necessary action to provide for dental insurance coverage for the child, as ordered by the court.

CHAPTER 156. Modification Subchapter A. General Provisions §156.006(b-1). Temporary Orders— ADDED (b-1) A person who files a motion for a temporary order authorized by Subsection (b)(1) shall execute and attach to the motion an affidavit on the person’s personal knowledge or the person’s belief based on representations made to the person by a person with personal knowledge that contains facts that support the allegation that the child’s present circumstances would significantly impair the child’s physical health or

emotional development. The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines, on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit. If the court determines that the facts stated are adequate to support the allegation, the court shall set a time and place for the hearing.

Aaron M. Reimer is an associate attorney at Jenkins & Kamin, LLP, a boutique family law firm where his practice includes a diverse range of topics from complex property issues in divorce to child custody, premarital and post-marital agreements, and family law appellate issues. He is secretary of the HBA Family Law Section.

Endnotes 1. For a comprehensive report of the most recent legislative changes both to the Texas Family Code and to other Texas statutes affecting family law practitioners, see Legislative Report 2015, STATE BAR OF TEX. SECTION REPORT FAMILY LAW, Vol. 2015-3; and Warren Cole, 2015 Legislative Update: Family Law, STATE BAR OF TEX. 41ST ANNUAL ADVANCED FAMILY LAW COURSE. CH. 11 (2015).

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appellate

1

By Robert Dubose

More A than Words Can Say: Using Visuals in Appellate Briefs

ppellate briefs rely on words, sentences, and paragraphs.

There is a good reason for this.

Our law—statutes, rules, and court opinions—consists of words. And because briefs were prepared for decades on typewriters, it became an established practice for appellate briefs to rely exclusively on words.

But as law is applied to a more complex, data-driven world, words are often not enough. Consider how we receive information online: most websites devote as much space to images as they do to words in order to inform and persuade.

Communicating complex ideas often requires visuals. Yet many lawyers remain reluctant to use images in briefs, leading Seventh Circuit Judge Richard Posner to complain: “[S]o disfavored are pictures, maps, objects, and diagrams in appellate briefs [...] that I’ve said some lawyers think a word is worth a thousand pictures.”1 Judge Posner, who may use more images in his opinions than any other American judge, encourages lawyers to do the same.

Other judges and lawyers are beginning to advocate using visuals in briefs.

Computer technology now makes incorporating images into documents easy.

And visuals often convey information about complex facts or data better than words. This article explores some of the most effective ways of using visuals in legal briefs.

Arguing with Images Judge Posner often uses images from the Internet to support his opinions. For instance, in a prisoner-rights case regarding the forcible shearing of dreadlocks, Posner argued that “[d]readlocks can attain a formidable length and density” and can be used to hide weapons.2 Most legal readers might not immediately agree with that written argument. But most legal readers are aware of this iconic photo of Bob Marley that Posner included in his

opinion3: This photo communicates Judge Posner’s point much more effectively than words can explain.

Simplifying Complex Relationships and Processes Some types of complex information are easier to see than read.

As statistician Edward Tufte explains, “[o]ften the most effective way to describe, explore, and summarize a set of numbers—even a very large set—is to look at pictures of those numbers.”4 I once struggled to explain a complicated insurance structure that applied to a catastrophic accident. The defendant was insured by two towers of insurance with multiple layers of coverage. This was much easier to show with a graph than a paragraph:

Similarly, paragraphs often fail to communicate a complex corporate structure. In one opinion, now-Chief Justice Kem Frost of the Fourteenth Court of Appeals, solved the problem with a graph:5

Graphics also can help explain a complex process. For instance:6

Using Graphic Timelines In almost every complex commercial trial, at least one party uses a graphic timeline. Yet, in appellate briefs, many lawyers forgo the graphics and use a harder-to-understand textual narrative, each sentence beginning with a date (“In May 2010...”).

This is a mistake. Judges benefit from the graphic timeline as much as jurors. Consider this example:7

Visualizing Legal Reasoning In some instances, even legal reasoning can be more effectively conveyed with a visual than with words.

Consider this decision tree, which shows the order in which appellate issues should be decided. thehoustonlawyer.com

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27

Another legal concept that works well visually is a table showing how courts apply a multi-factor legal test. For example, this table shows how three cases have applied a three-factor legal test.

A reader can see what the result should be in this case before learning the details about the three factors and other cases applying them.

Five Tips for Using Visuals in Briefs 1. Brainstorm possibilities for visuals.

Because we have a habit of relying on words to argue, we should approach every draft brief with the question, “Will visuals aid this argument?� Consider whether the argument involves decision trees, timelines, complex relationships, analysis of data, or comparisons of information or legal factors.

All of those subjects are candidates for visuals.

2. Put visuals in the text, not the appendix.

Some lawyers feel compelled to place visuals in the appendix,

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thehoustonlawyer.com

as if they were mere exhibits, rather than incorporate them into the body of the brief. Remember that visuals can be the most important part of the argument, not just peripheral support. Place visuals in a location that highlights their importance.

3. Use visuals that simplify, not complicate.

The purpose of visuals in briefs is to make information easier to understand. If the visual makes the information more complex, it fails its purpose.

4. When needed, provide record support.

In some instances, visuals will be contained in the trial record and can be pasted in the brief and the record cited. But in other instances, the appellate team will be creating a visual based on information in the record. When taking this approach, cite all necessary information in the record, and make sure the visual accurately reflects the record.

5. Seek professional help.

Lawyers can create their own basic visuals by cutting and pasting images from the record or Internet, or by creating simple graphs and flow charts using the Smart Art function in MS Word. But for more complex information, and better-

looking visuals, seek out legal media professionals who have experience translating complex information into effective visuals.

Robert Dubose is a partner in the civil appellate boutique Alexander Dubose Jefferson & Townsend LLP. He is also the author of Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World.

3. Id. 4. EDWARD R. TUFTE, THE VISUAL DISPLAY OF QUANTITATIVE INFORMATION (2d ed. 2013).

5. See Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 805 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (the graphics have been modified slightly for this article).

6. Graphic courtesy of Francesca Cerrato, Legal Media Inc., Houston.

7. Graphic courtesy of Francesca Cerrato, Legal Media Inc., Houston.

Endnotes 1. FRICHARD A. POSNER, REFLECTIONS ON JUDGING 143 (2013).

2. Grayson v. Schuler, 666 F.3d 450, 452 (7th Cir. 2012).

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September/October 2015

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appellate

2

By Christina Crozier

The T Error Preservation Cheat Sheet

rial can sometimes feel like a pop quiz on error preservation, but there is no need to walk into court unprepared. The following cheat sheet is designed to be a quick reference on the most common error preservation issues that arise during trial. Rip it out, pop it in your trial binder, and you’ll look like an error preservation whiz.

Motion in Limine: ✯A ✯ ruling on a motion in limine does not preserve error.1 ✯If ✯ the court grants a motion in limine excluding your evidence:2 • During trial, approach the bench and ask for a ruling.

• Formally offer the evidence.

• Obtain a ruling.

• If the court rules that the evidence is inadmissible, make an offer of proof.3 (See below.) ✯If ✯ the court denies your motion in limine:4 • Object during trial when the evidence is offered.

• Obtain a ruling. ✯If ✯ opposing counsel violates an order granting a motion in limine:5 • Timely object.

• Request a curative instruction.

• Move for a mistrial if instructions to the jury could not eliminate the danger of unfair prejudice.6 Motion to Exclude: A ruling denying a motion to exclude testimony preserves error, but only as to the evidence that is the subject of the motion. The ruling eliminates the need to make the same objection every time evidence on the topic is admitted. 7

Voir Dire: ✯To ✯ preserve error when your challenge for cause is denied:8 • State the basis for the challenge for cause.

• Obtain a ruling.

• Use a peremptory challenge against the venire member involved.

• Exhaust all remaining peremptory challenges.

• Notify the court that a specific objectionable venire member will remain on the jury list because the court refused to strike the venire member for cause.

• Make clear on the record that you are giving the clerk your peremptory strikes after going through all of these steps. ✯To ✯ preserve error when your opponent’s challenge for cause is granted: Object to the trial court’s grant of the challenge for cause.9 Running Objections: ✯A ✯ running objection can preserve error, but it must be specific and unambiguous.10 ✯To ✯ make a running objection: • Clearly identify the source and specific subject matter of the expected objectionable evidence before disclosure to the jury.11 • Ask for a running objection with respect to all witnesses who will testify on the matter, or re-urge your running objection for each witness.12 Excluded Evidence: ✯To ✯ challenge the exclusion of evidence, you must:13 • Attempt to introduce the evidence.

• If there is an objection, specify why the evidence is offered and why the evidence is admissible.

• Obtain a ruling.

• If the court rules that the evidence is inadmissible, make an offer of proof. ✯Offer ✯ of proof14 preserves error if it 15 is: • Made outside the presence of the jury before the judge, court reporter, and opposing counsel.

• Transcribed in the reporter’s record.

• Made before the charge is read to

the jury.

• Specific enough that the reviewing court can determine admissibility.16 Motion for Directed Verdict: • A defendant who moves for directed verdict after the plaintiff rests and then proceeds with the defendant’s case must re-urge the motion at the close of the defendant’s evidence to preserve error.17 • A motion for directed verdict is one of several ways to preserve a no-evidence challenge. A no-evidence challenge may alternatively be preserved after trial through a motion for judgment notwithstanding verdict, motion for new trial, or motion to disregard the jury’s answer to a vital fact issue.18

Improper Jury Argument:24 ✯Generally, ✯ to preserve error: • Object during the jury argument.

• Request an instruction that the jury disregard the improper remark. ✯In ✯ rare circumstances, you can complain for the first time in a motion for new trial that the jury argument was so extreme that it was “incurable.”

Incomplete or Defective Verdicts:25 Before the jury is discharged, object that the jury’s answers are incomplete or conflict.

Christina Crozier is counsel in the appellate section of Haynes and Boone, LLP. She regularly assists trial teams with error preservation.

Endnotes

The Jury Charge: ✯When ✯ to object and when to make a written request?19 • Object to complain about: • Questions, instructions, or definitions submitted in the court’s charge, or20 • The court’s failure to submit a question for which your opponent has the burden.21 • Make a written request to complain about the court’s failure to submit:22 • An instruction or definition, or • A question for which you have the burden.

• Do nothing if your opponent fails to submit an entire cause of action or affirmative defense for which it has the burden. ✯Creating ✯ a clear record at the charge conference: • As to objections, get a separate ruling on each individual question.

• As to written requests,23 • Tender written requests on separate sheets of paper, pre-marked with blanks for “given,” “refused,” and “modified as follows.”

• Make sure that the court signs each refused request.

1. BNSF Ry. Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth 2014, pet. filed).

2. Id. 3. TEX. R. EVID. 103(a)(2).

4. Norfolk S. Ry. v. Bailey, 92 S.W.3d 577, 583 (Tex. App.—Austin 2002, no pet.).

5. See Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000); Citigroup Global Markets Realty Corp. v. Stewart Title Guaranty Co., 417 S.W.3d 592, 604 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

6. Dove v. Director, State Emps. Worker’s Comp. Div., 857 S.W.2d 577, 580 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

7. Austin v. Weems, 337 S.W.3d 415, 422 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203-04 (Tex. App.—Texarkana 2000, pet. denied).

8. Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 90-91 (Tex. 2005).

9. Solomon v. Steitler, 312 S.W.3d 46, 58 (Tex. App.—Texarkana 2010, no pet.).

10. Huckaby, 20 S.W.3d at 203.

11. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).

12. Id.; Leaird’s, Inc. v. Wrangler Inc., 31 S.W.3d 688, 691 (Tex. App.— Waco 2000, pet. denied).

13. Culver v. Culver, 360 S.W.3d 526, 532 n.9 (Tex. App.—Texarkana 2011, no pet.).

14. TEX. R. EVID. 103(b).

15. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.— Dallas 2008, no pet.).

16. TEX. R. EVID. 103(a)(2); Lone Starr Multi-Theatres, Ltd. v. Max Interests, Ltd., 365 S.W.3d 688, 703 (Tex. App.—Houston [1st Dist.]

2011, no pet.).

17. Ratsavong v. Menevilay, 176 S.W.3d 661, 667 (Tex. App.—El Paso 2005, pet. denied).

18. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992).

19. TEX. R. CIV. P. 278.

20. Gutierrez v. County of Zapata, 951 S.W.2d 831, 843 (Tex. App.— San Antonio 1997, no writ).

21. TEX. R. CIV. P. 278.

22. Id.; McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 585-86 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

23. TEX. R. CIV. P. 276.

24. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); TEX. R. CIV. P. 324.

25. Beltran v. Brookshire Grocery Co., 358 S.W.3d 263, 267 (Tex. App.— Dallas 2011, pet. denied); TEX. R. CIV. P. 295.

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appellate

3

By Robert M. (Randy) Roach, Jr.

The Top W Ten Reasons for Hiring 1. an Appellate Specialist in the 2.

Trial Court

ith increasing frequency, defendants and plaintiffs have been adding appellate specialists to their trial teams. For clients or trial lawyers who have never done so, the obvious question is “Why?” If the potential verdict is less than a few hundred thousand dollars, the expense is probably not justified. But if there is a real chance for a substantial judgment that will lead to an appeal, the expense may be necessary. In those cases, consider these specific advantages that an appellate specialist can bring to your trial team.

Properly preserving error.

On appeal, only properly preserved error may be urged as grounds for reversal. Appellate rules on preservation are demanding, unforgiving, and often confusing. For example, excluded evidence is governed by different rules than admitted evidence. For admitted evidence, the record must contain (1) a proper objection, (2) an express ruling, (3) a motion to strike, (4) an instruction to disregard, and (5) a motion for mistrial. If the court does not rule on the objection, the record must also contain an express request for a ruling. If this procedure is not followed, any error would be waived. Appellate courts often also hold that failure to preserve has waived error during voir dire and in connection with jury instructions.

Freeing the trial lawyer to focus on persuading the jury.

There are two sides to the trial coin: the fact side and the law side.

The trial lawyer’s primary focus is the fact side—persuading the jury during voir dire, opening arguments, witness examination, and closing arguments.

The appellate specialist’s primary fo-

cus is the law side—making a complete record, preserving objections, and drafting motions and jury charges.

Not all error can be anticipated, but an appellate specialist can be tasked with fleshing out the record during opportunities such as in the morning before the jury arrives, during breaks, or after the jury leaves. By off-loading a large part of those responsibilities to the appellate specialist, the trial lawyer can concentrate on winning the case with the jury.

3.

Deflecting the wrath of juries and judges who dislike interruptions. There are few subtle ways to adequately preserve error.

Frequent objections become irksome to the judge and jury, trial judges may actively discourage pursuing overruled objections to the extent necessary to actually preserve error, and routine denials make a lawyer look “wrong” to a jury. Not being the personification of the client in the eyes of the jury, the otherwise low-profile appellate specialist can better draw that disdain and fade that heat. If big stakes are riding on the jury’s positive regard for the trial lawyer, it can be important to minimize the occasions that could cause the jury to dislike him or her.

4.

Keeping a perceived “hostile” judge in check. While judges strive to be truly impartial, there are some instances, albeit infrequent, in which they may appear to the parties to favor one side or the other, seemingly making rulings designed to lead to a particular judgment or even refusing to rule altogether.

Experience suggests that trial judges generally take special notice when an appellate specialist has been hired to actively make a thorough appellate record. Judges that might otherwise have appeared “hostile” may temper their “hostility” when they know that an appellate specialist is shaping the record to be reviewed by the appellate

courts. Some of the most egregious errors may be deterred by actively focusing on preparing for appeal during the trial itself.

5.

Creating a more credible chance of reversal. Trial judges generally appreciate that an appellate specialist is more likely to be successful on appeal than a nonappellate specialist. Two separate formal surveys of appellate judges that I have conducted support this notion.

Just as many parties believe that trial judges have higher regard for particular trial lawyers, trial judges may expect that appellate judges will have higher regard for particular appellate specialists. Being more familiar with appellate procedure and substantive law, the appellate specialist presents a more credible potential for reversing an errant trial judge.

6.

Showing that you’re in it “for the long haul.” By incurring the additional expense of an appellate specialist, a party demonstrates a real commitment to pursuing an effective appeal to vindicate its client’s interest, and disabuses the other side of a mistaken belief that they can run rough shod over that party during or after trial. Preparing to fully appeal the case, even retrying it if necessary, creates a substantial financial disincentive for the opposing party.

7.

Crafting and arguing the jury charge. No aspect of trial procedure is as daunting or as easily mishandled as the jury charge.

Most trial lawyers, and some appellate lawyers, will admit that they dislike handling the jury charge because of the obtuse rules and case law, and because of the opportunity for mistakes with significant consequences. For example, a proper objection will preserve error on some jury charge matters.

However, other matters may require also tendering a written request for a

substantially correct charge item to avoid waiving error. The jury charge is one area in which many trial lawyers have previously utilized an appellate specialist.

8.

Knowing appellate law and trends. In general, appellate specialists are more likely to appreciate when the law has changed or may change. Over the last few years, the combination of statutory tort reform and a more conservative Texas Supreme Court has changed some areas of the law dramatically and some other areas very subtly. Moreover, the process of change is continuing. While trial lawyers attempt to stay on top of some particular changes in substantive law, day-to-day trial practice necessarily focuses on developing the facts of cases. The appellate specialist’s focus on the development of the law may enable them to better apply those changes when the need arises during trial.

9.

Handling mandamus actions.

If the trial court is perceived as having abused its discretion, mandamus relief may be considered. Unfortunately, the procedural requisites of mandamus are many and difficult. For example, it was once reported that the Dallas court of appeals rejected approximately nine out of ten mandamuses strictly for procedural defects, without any consideration of the substance of the issues. While mandamus actions are difficult enough prior to trial, they are even more difficult for a trial lawyer to handle during trial because even an appellate specialist needs to devote full time to them.

Many trial lawyers are miracle workers, but an in-trial mandamus may present an insurmountable challenge.

10.

Helping the judge avoid reversible error. While the previous nine points focus on a losing trial, appellate lawyers can also be of real assistance when

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September/October 2015

33

you expect to win. Because trial judges are mindful of being reversed, they usually appreciate and listen to an appellate specialist who has been hired to help sustain their judgment on appeal. For many years, plaintiffs’ trial lawyers have been hiring appellate specialists to assist them in big cases

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for this very reason.

CONCLUSION There are a variety of circumstances and a number of factors that need to be considered, but there is no doubt that an appellate specialist can bring real advantages to a trial team.

thehoustonlawyer.com

Robert M. (Randy) Roach, Jr. is a partner at Roach & Newton, LLP. He teaches appellate advocacy classes at the University of Houston Law Center and University of Texas School of Law, and is a Fellow of the American Academy of Appellate Lawyers.

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Houston Lawyers Who Made a Difference

Maurice Hirsch

I

By The Hon. Mark Davidson

t is axiomatic that the difference between a good city and a worldclass city is the presence of worldclass fine arts. By that measure, no one made more of a difference in Houston’s formative years to make it the city we are today than Maurice Hirsch.

Hirsch’s mother was an Alabamaborn singer who helped Ima Hogg found the Houston Symphony Society in 1913. He inherited his mother’s love of music, and became active in carrying that mission forward. While he was quite active in the law, being the founding partner of the firm that would become Hirsch & Westheimer, his passion was the arts. His work on behalf of the Houston Symphony was critical in turning a local group of musicians into an orchestra that is known and respected worldwide. He personally recruited musicians and conductors from other cities to come to Houston.

He was chair of the symphony’s board of directors from 1956 until 1970, a

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time in which its reputation grew exponentially.

Maurice Hirsch His efforts on behalf of the arts did not stop there. He was active in organizing the Houston Grand Opera and the Society for the Performing Arts.

He was a major benefactor to the Museum of Fine Arts, among many other educational and cultural organizations. He was a driving force in the creation of a park on the San Jacinto

thehoustonlawyer.com

Battlegrounds.

His sense of civic duty did not stop with the arts. During World War II, although well beyond the age of draft eligibility, Hirsch volunteered for duty and was assigned to the Judge Advocate General’s Corps. In time, he would be assigned to serve on the War Department Renegotiation Board, where he worked tirelessly to keep supplies being furnished to combat troops while making sure the costs were within reason. For his exemplary service, he earned the rank of Brigadier General.

To all of us that enjoy performing arts, great music, visual arts and the pleasure of living in a city in which all of them are available throughout the year, a great deal of thanks is owed to General Hirsch. By any measure, he made a difference for us all.

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.

A Profile

in pro f e s s io n ali s m

n November, the Texas Board of Law Examiners announces the new lawyers who have passed the Bar. In my firm, as in many others, we open champagne and congratulate our new attorneys.

Because I am the office Managing Partner, I make the toast – and it begins with welcoming them to the greatest profession in the world.

Our “sacred calling” is thousands of years old. In every society, in every time – law and lawyers have formed the building blocks of civilization. From Moses’ Ten Commandments to Hammurabi’s Law Codes, every society has sought a system of laws and a means of accomplishing justice. Ancient Egyptians thought legal instruments were so important, they preserved them in their tombs!

As American lawyers, we continue the proud tradi-

tion of John Winthrop, Margaret Brent, John Adams (my favorite), Thomas Jefferson, Daniel Webster, Abraham Lincoln, Thurgood Marshall and other great lawyers who have built our country. Although we may not write a constitution or challenge a king, each of us can, with honesty, candor and fairness, aid the system of justice and walk in the shoes of our professional ancestors. Our transactional lawyers negotiate deals, grow companies and strengthen America’s economy.

Our litigators enforce rights and litigate disputes so that our citizens can obtain redress and achieve justice.

In cynical times, we can forget the magnificent record of our profession. It’s incumbent upon all of us to remember our history and to rise to Cicero’s challenge “to speak for those who cannot speak for themselves.”

thehoustonlawyer.com

September/October 2015

The Houston Lawyer

I

Lisa Pennington Managing Partner, BakerHostetler

37

OFF THE RECORD

Kona Ironman 2015

Doing it for Emily

By Jonathan C.C. Day

The Houston Lawyer

“W

raise money for the Leukemia & Lymphoma Society. Speaking hat do you want for your birthday, Daddy?” with hope in his voice, John explains, “Blood cancers are one of Emily Jordan was five years old and couldn’t the areas where they are making the most advances in treatment. leave her hospital isolation room to get a Today, they are actually healing people.” present for her dad. “I want you to be healed John speaks from experience. This is the second time he has and come home with us!” “I know,” she inbraved a triathlon to fight blood terrupted, “But, what else do you cancers. John and two of his want?” “Well, you know, Em. I former law partners at Gibbs & want to get into Ironman Hawaii Bruns completed Ironman Brazil and have you, Mom and Timothy to raise money in the name of a at the finish line!” colleague of theirs who was diEmily had been diagnosed agnosed with lymphoma. Their with leukemia at the age of four friend, a father of two, is now and this transplant was her last healthy. hope of healing. She was not When asked about the race itthinking about herself when she self, John explained, “Every mile dictated a letter from her hospiof this course is brutal.” It begins tal bed asking the lottery officials at 7:00 a.m. with a 2.4 mile swim, who decide which amateurs will 1.2 miles straight out into the Pabe invited to the most important cific surf with no wet suits, then triathlon in the world to “please 1.2 miles back in. Then, you get pick my daddy.” They did! Emily knew that they picked her dad John Black will run the Ironman Triathlon to raise money for leukemia on your bike and start the 112 mile bike ride that includes 4,200 and it was a huge birthday sur- and lymphoma research in memory of 5-year-old Emily Jordan. feet of vertical climbing with crosswinds so strong they sometimes prise, but unfortunately she was not at the finish line. She died knock riders off their bikes. Once you are off the bike, you start a five days after Bob’s birthday. marathon through the lava fields. You have until midnight to finHouston trial lawyer John Black heard Emily’s story for the first ish, with time cutoffs along the way. Having described this chaltime as he was running the marathon leg in Ironman Boulder last lenge, John leans back and thinks about what it all really means, year. He met Bob Jordan on the race course, and they ran together “God willing, it should take me somewhere between 13 and 15 for miles. When he talks about that day, John remembers, “As a hours. It will be a long day. But this is a gift. An opportunity to do daddy to two little girls, his story made me cry. Not the kind of something incredible for kids like Emily.” tears that you might imagine on an Ironman run course, but the kind that stir your soul to act. It is a sad and inspiring story that I still can’t wrap my head around. That day while we were runTo find the donation page, Google “John Black Emily Jordan Team in ning, I tried to put myself in Bob’s shoes. It still gives me gooseTraining.” The goal is lofty – as it should be – for each mile traversed bumps when I think about Emily’s story and Bob’s devotion to her John is asking for $1, or if you are moved by Emily’s story and hope to memory.” find a cure to leukemia and lymphoma, consider a larger gift. If you Fast forward one year and John, with Bob’s help, has been are interested in a corporate or family gift or if you have any difficulty awarded one of only five slots given to Team in Training funddonating online, please contact John directly at jblack@dalyblack.com. raisers, to race with the best in the world at the “Super Bowl” of Ironman, the place where the Ironman competition was born in Jonathan C.C. Day owns the law firm of Day PLLC. He is a memthe 1970s. More importantly, John and Bob have joined forces to ber of The Houston Lawyer editorial board.

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September/October 2015

thehoustonlawyer.com

COMMITTEE SPOTLIGHT

The Juvenile Consequences Partnership Committee:

Giving Juveniles a Second Chance

By The Hon. Josefina M. Rendón

T

he Houston Bar Association’s Juvenile Consequences Partnership (JCP) Committee is unlike most HBA committees. Instead of meeting at the HBA’s offices, the committee meets with the people it serves, young offenders and their parents.

Also, unlike committees that are composed mostly of HBA members, JCP is composed of representatives of each agency that deals with the juvenile justice system. These are the Harris County Probation Department, Harris County District Attorney’s Office and Houston Police Department, together with HBA members who are interested in helping young offenders.

Co-chaired by attorneys Scott Rothenberg and Jo Ann Schaffer, the JCP committee provides young offenders and their parents information about the juvenile justice system and helps these young people get a second chance and avoid criminal records. Committee members are expected to attend at least one of the monthly programs a year, though most attend more.

The evening of the third Tuesday of August 2015 was typical of a JCP committee program. Harris County’s Jury Assembly Plaza had two rooms full of young people and their parents. These were first offenders selected by the Juvenile Department to be placed on deferred prosecution for 90 or 180 days, depending on the offense and the expected level of intervention. They had not yet faced a judge and hopefully never will if they successfully complete the program. Each juvenile is required to stay out of trouble for the assigned period and abide by the conditions placed on him

or her. One condition is to attend a JCP program.

HBA Executive Director Kay Sim spoke first. As she stood talking, as well as listening to others, her pride and passion for the program was palpable. She spoke of the program and reminded them how lucky they were to be there. “Listen to everything they say!” she told the audience.

And most of them did.

The moderator, Captain Jay Jones, spoke next. Jones is in charge of the Houston Police Department Juvenile Program. He recognized Kay as the person who started the current JCP. He expressed concern and care for the young people present.

Next, Houston Police Officer Randall Kelley spoke of having himself been a juvenile offender and high school drop-out, turning his life around by going to the military, joining the Houston Police Department, completing college, and attending graduate school. “Turn the situation you’re in now, make it a positive thing. Make your parents proud of you.” His messages seemed to resonate with the audience.

Gus Guerrero from the Harris County Probation Department stated he didn’t see a room of bad people, but a room of young people who acted dumb at one time. He acknowledged how hard it is to be their age. He also stated that parents should be in charge. “How many of you have apologized to your parent?” Thirty or so kids stood up. “Congratulations, you have taken your first step into adulthood,” he said.

Guerrero also told them to put their hands behind their back. He then took out some handcuffs while noisily opening and closing them to remind them what it sounds

like when being arrested.

District Attorney Hans Nielsen, shared that though they didn’t know him, he knew them because he had seen their police record. “And those records will remain unless you decide to complete this program,” he said. “You’re getting a second chance… and if you finish it, your record will be wiped clean.” He reminded them that non-completion results in having a record and, with time, possibly jail.

Juvenile defense attorney Mark Eisenberg told them that, with today’s technology it is easy to get caught. “You all have the chance to fix this. Don’t come back!” he said.

Capt. Jones concluded by urging them to remember what they learned that night, to turn it around. “You don’t like your parents telling you what to do? Then, do the right thing without being told.”

In short, each speaker showed a tough love combination of “we care” but “be scared” that seemed to be effective with the audience. Their tone was gentle and non-threatening, yet firm and admonishing as to what the future would hold if the young audience did not heed their advice.

And the approach apparently works! JCP has a 90 percent success rate of convincing young people not to return to the juvenile system by teaching them about the consequences of their actions.

The Hon. Josefina M. Rendón is an Associate Municipal Judge who, over the years, has presided over many juvenile cases. She is also a mediator, a former Civil District Judge and a member of The Houston Lawyer Editorial Board.

thehoustonlawyer.com

September/October 2015

39

LEGAL TRENDS

Reining In the Field of Entities Subject to the Texas Public Information Act

By Matthew D. Walker

The Houston Lawyer

T

he Texas Supreme Court, in Greater Houston Partnership v. Paxton, 2015 WL 3978138 (June 26, 2015), has clarified what it means to be a “governmental body” under the Texas Public Information Act. Greater Houston Partnership (“GHP”) is a nonprofit corporation that promotes regional economic growth in the ten county region around Houston. In 2007, GHP contracted with the City of Houston to provide consulting, event planning and marketing services.

In May, 2008, GHP received a request pursuant to the Texas Public Information Act (“TPIA”) for copies of all checks it had written in 2007.

The TPIA requires every “governmental body” in Texas to disclose information in its possession to any member of the public upon request. “Governmental body” is defined in the TPIA to include “the part, section or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds.”1 The requestor asserted that GHP was a “governmental body” subject to the TPIA because it was “supported in whole or in part by public funds.” The Texas Attorney General agreed with the requestor. Applying the longstanding test stated in Kneeland v.

National Collegiate Athletic Association, 850 40

September/October 2015

responsibilities. Adding this context to the F.2d 224 (5th Cir. 1988), the Attorney Genlanguage of the statute informed the Court eral reasoned that GHP was a governmental that the Texas Legislature body because it 1) provided meant to limit the reach of services traditionally proThe Texas the statute to those entities vided by the government Supreme Court, in whose existence depends and 2) shared a common upon public funds. purpose and objective with Greater Houston Applying the facts to this the City. analysis, the Court conGHP filed a declaratory Partnership v. Paxton, cluded that GHP was not judgment action against the (June 26, 2015), a governmental body beTexas Attorney General, cause it was not supported seeking a declaration that it has clarified what by public funds. The Court was not subject to the TPIA. it means to be a recognized that GHP does After a bench trial, the trial not rely on its government court found that GHP was a “governmental body” contracts to sustain itself governmental body and oras a going concern since dered the disclosure of the under the Texas the government funds it requested documents. FolPublic Information receives constitutes a relalowing the Attorney Gentively miniscule portion eral’s reasoning, the trial Act. of its annual budget. The court determined that GHP Court recognized GHP as being no differreceived public funds to provide economic ent than numerous other chambers of comdevelopment on behalf of the City; that GHP merce providing services to cities and other and the City shared the common purpose of clients pursuant to quid pro quo contracts. economic development and; that an agency Ultimately, the fact that GHP provides sertype relationship arose between GHP and vices to the City pursuant to a contract and the City. The court of appeals agreed with shared common objective with the City did the trial court and affirmed the judgment. not transform it into a government appendThe Texas Supreme Court rejected this age subject to the TPIA. line of thinking. The Court held that the The Court’s decision disposed of the phrase “supported in whole or in part by Kneeland test typically relied upon by the public funds” is appropriately defined to Texas Attorney General in favor of a newer only include those entities “sustained,” at test that is more faithful to the language of least in part, by public funds to such an exthe TPIA. Parties facing this issue after GHP tent that “they could not perform the same can expect a fact intensive analysis into or similar service without public funds.” whether an entity that received public funds The Court reasoned that a weaker definition could sustain themselves without such asof “supported” would risk sweeping any prisistance. This will serve to narrow the field vate entity that received any public funds of private entities doing business with the within the definition of a “governmental government that are subject to Texas’ public body,” while defining “supported” as “susdisclosure law. tenance” ensures that only an entity whose existence is predicated on the continued receipt of government funds would qualify Matthew D. Walker is an attorney with as a “governmental body.” The Court also Litchfield Cavo, LLP. His practice is focused took note that the other types of “governon the trial of civil lawsuits. mental bodies” defined in the TPIA were all private entities ostensibly deputized by the Endnote 1. Texas Government Code § 552.003(1)(A)(xii). government to perform core governmental

thehoustonlawyer.com

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LEGAL TRENDS

High Court Underscores the Significance of Patent Invalidity and Noninfringement Opinions

By Kyle Musgrove and Mini Kapoor

I

n Commil USA, LLC v. Cisco Systems, Inc.,1 the Supreme Court held that a good faith, but ultimately incorrect belief in invalidity of a patent is not a defense to induced infringement. Of course, where the claim is found invalid, such a holding still operates to foreclose liability because where a patent “is shown to be invalid, there is no patent to be infringed.”2 Commil sued Cisco for induced infringement of Commil’s patent for implementing short-range wireless networks. The Federal Circuit stated that a good faith belief that the patent was invalid negated the requirement that the alleged infringer acted with intent to induce the infringement.3 The Supreme Court disagreed.

Emphasizing the dichotomy between invalidity and infringement the Court stated

such opinions had prior to the Federal Cirthat “because infringement and invalidcuit’s Commil opinion. While merely havity are separate issues under the statute,4 ing a good faith belief in the invalidity of a a belief regarding invalidity cannot negate patent will not insulate an alleged infringer the scienter [i.e., the intent] required under 5 from liability for inducement, an ultimate §271(b).” finding of invalidity will lead to a holding It is usual for a company to seek nonof non-liability. infringement and invalidity opinions for The Supreme Court’s holding underpatents. After arming itself with an opinion, scores the importance of some companies feel free obtaining invalidity and to practice the invention Commil sued Cisco non-infringement opinat issue. Commil, however, for induced infringement ions that are of high qualnotes some differences ity. High quality opinions between the two types of of Commil’ s patent for provide the company the opinions. support it needs to make The Court drew a disimplementing shortdecisions and often are tinction as to why a good range wireless networks. ultimately found to be faith belief of non-infringecorrect, i.e., the patent in ment would insulate an The Federal Circuit question is invalid or not alleged infringer from induced infringement while stated that a good faith infringed. Thus, the correct focus is on the quality a good faith belief of invabelief that the patent of the opinions obtained lidity would not. In sum, the Court stated that a was invalid negated the without regard for whether the opinion is one of nongood faith belief of invalidrequirement that the infringement or invalidity. ity does not operate to imAfter all, a correct opinion ply that a patent is not inalleged infringer acted is the starting point for fringed; rather, the alleged a litigation strategy leadinducer would believe that, with intent to induce ing to a holding of nonbecause the patent is inthe infringement. liability. valid, liability would not lie, and infringement is The Supreme Court Kyle Musgrove is a partner irrelevant. In other words, in the intellectual property “invalidity is not a defense disagreed. group at Haynes and Boone, to infringement, it is a deLLP. Mini Kapoor is an associate in the fense to liability.”6 litigation group at Haynes and Boone, LLP. So what does this mean for companies attempting to determine whether they are Endnote free to operate amidst a variety of patents 1. 575 U.S. ____ (2015). that others might assert? Under Commil, 2. Id. at ___ (slip op., at 11). as long as the accused infringer has a good 3. Commil USA LLC v. Cisco Sys. Inc., 720 F.3d 1361, faith belief of non-infringement, it lacks the 1368 (Fed. Cir. 2013).

4. “Part III of the Act deals with ‘Patents and Proknowledge required for inducement. Thus, tection of Patent Rights,” including the right to a reasonable, although ultimately incorrect, be free from infringement. §§ 251-329. Part II, non-infringement opinion may insulate the entitled ‘Patentability of Inventions and Grants alleged infringer from liability for induced of Patents,’ defines what constitutes a valid patent. §§101-212.” Commil, 575 U.S. at ____ (slip infringement as long as the good faith belief op., at 10). is held.

5. “Whoever actively induces infringement of a What then is the place for invalidity patent shall be liable as an infringer.” opinions? They have the same stature that 6. Commil, 575 U.S. at ____ (slip op., at 11).

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thehoustonlawyer.com

September/October 2015

41

Media Reviews

Dark Places of the Earth

By Jonathan M. Bryant 2015, Liveright Publishing Corporation Reviewed by The HON. Jeff Work

The Houston Lawyer

F

rom the title of this book, some may think this story is a tale of horror. In reality, it is not, although for the 300 or so African passengers aboard the ship Antelope, it was surely a nightmare. Furthermore, this historic novella is not a yarn to produce guilt in the reader.

The story is meant to inform as to American culture in the early 1800’s. It helps the reader to understand a little more as to what was the historic backdrop to the American Civil War. What makes this story even more fascinating are some of the key characters involved. The case appeared on three different occasions to the U.S. Supreme Court and Chief Justice John Marshall with its final decision coming in 1827, some 15 years before the now more famous Amistad case. One of the integral advocates for the government in the Antelope case was Francis Scott Key. Key, although known more generally now as the composer of the national anthem, was one of the more skilled lawyers and advocates of his time. Unfortunately, very little is known of the actual Africans involved and their voices can only be heard through others.

The Antelope was an American made ship that passed, through legitimate transactions, to a Spanish owner. The ship was built for the purpose of importing slaves even though international slave

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September/October 2015

trade in the United States had been illegal since 1808. The Antelope was eventually captured in 1820 by a United States Marine cutter. The occupants of the ship were taken to Savannah, Georgia and basically forced into slavery while awaiting all the legal maneuvering — maneuvering that would take seven years of their respective lives. However, whether the individual Africans were free, “owned” by the Spanish government, or by other privateers were the main issues before the U.S. Supreme Court once the case wound itself to the high court. In 1925, Chief Justice Marshall delivered the first decision which was characteristically split in its findings, remanding the case back to the trial court for further findings. Ultimately two more appeals to the U.S. Supreme Court were heard with the case coming to a close in 1927. Ultimately, three-fourths of the Africans were declared “free” while approximately three dozen were declared “property” of the Spanish claimants. The freed Africans were sent to Liberia in July, 1827 to establish a “new” and “free” colony.

The author, Jonathan M. Bryant, is professor of history at Georgia Southern University. His rich writing style and detailed story-telling making the book very easy to read. He divides the book into four parts: Sea; Savannah; Washington, D.C.; and Legacies. But again, more than anything, the writer gives much more understanding how the United States came to a Civil War when President Lincoln was elected.

The book is highly recommended.

The Hon. Jeff Work is a former judge of Harris County Sate District courts.

He practices with the Law Offices of Susan Cartwright/Zurich Insurance Group Staff Counsel, litigating for the Major Claims Unit.

thehoustonlawyer.com

Social Media and Litigation Practice Guide

By John G. Browning 2014, Westlaw PublishingReuters Reviewed by Al Harrison

T

hose of us who relish the author’s writings recurring in the Texas Bar Journal, will appreciate his scholarly but pleasantly poetic presentation of the unavoidable nexus between social media and litigation. Browning handily acquaints us with the seemingly endless issues that permeate the nexus between social media and litigation. He drives home his practical guide to social media—from a litigation vantage point.

In his “Introduction and Overview” constituting Chapter 1, the author describes social networking as representing “a paradigm shift in how people communicate and share information” as if it was a “digital watercooler” and observes that the contemporary social media landscape “spreads its digital tendrils worldwide and permeates virtually every facet of our lives.” Having laid the predicate for this rapidly developing electronic environment, he delivers a must-have handy practice guide to both plaintiff and defense litigators. Regardless of the extent of legal experience acquired by the reader, Browning makes no presumption about extent of social media expertise. Indeed, virtually any notion of the seemingly unlimited scope of social media-related attributes suffices for lawyers’ benefitting

Media Reviews

from the author’s clarification and analysis of how social media has already affected issues including: jurisdiction (Chapter 2), service of process (Chapter 3), discovery (Chapter 4), preservation of evidence (Chapter 5), evidence admissibility and authentication (Chapter 6), attorney ethics (Chapter 7), jury-related considerations (Chapters 9 and 10), and even the judiciary (Chapter 8).

The crucial jurisdiction issue is initially addressed by explaining that mere presence on social media platforms has consistently been found to be an insufficient basis. Nevertheless, the author points out that the jurisdiction threshold can be satisfied via amplified and extensive social media presence. Active engagement on social media websites has frequently been deemed to devolve to continuous and systematic contacts having particular focus upon an entity or individual clearly situated in a specific venue. The author provides an extensive global discussion of service of process “without leaving the computer” in Chapter 3. According to Browning, “How the legal landscape has shifted—and continues to shift—in the age of Facebook, Twitter, and YouTube, to allow service [of process] via social media is a study in the law’s Sisyphean struggle to keep pace with technology.”

In his subsequent chapters, Browning cleverly integrates his vital discussion of e-ethics with the impact of social media upon discovery, authentication and admissibility of evidence, and preservation and spoliation of evidence. The issues covered include attorneys’ duty of (technology) competence, duty of confidentiality, proper information-collection protocol, spoliation concerns, juror interface, and social media “rogues gallery.” Thus, the author lays a comprehensive foundation for his analysis of a plethora of ethical considerations encompassing issues ranging from being conversant with the metes and bounds of social media from attorneys’ duty to comply with ethical rules of

professional conduct to communicating with jurors online, to inadvertently establishing the attorney-client relationship.

His rogues gallery is intended to be a sobering warning of the ease with which uninformed and unaware attorneys can inadvertently cross the ethics line and become immersed in “ethical hot water.”

Several instances of such professional impropriety are interpreted for readers.

Browning’s practice guide also includes 15 appendices containing a treasure trove of carefully crafted and useful forms including litigation-related documents including pleadings and letters.

Al Harrison is a patent attorney practicing intellectual property law with Harrison Law Office, P.C. and has been a long-time member of The Houston Lawyer Editorial Board.

Life Lessons from Legendary Texas Lawyers

T

he Texas Young Lawyers Association recently published a booklet entitled, If I Knew Then...Life Lessons from Legendary Texas Lawyers. This is an entertaining read or coffee table book with advice from several great lawyers across the State of Texas. If you are interested in obtaining a copy, contact the TYLA or download a copy from their website, http:// t yla.org /t yla /index.cfm /resources / lawyers.

Jeff Work, Editor, Media Reviews thehoustonlawyer.com

September/October 2015

43

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