THL_Nov/Dec_2010

Why the Law Needs to Catch Up to Teenagers’ Texts Student Discipline Goes to Court Protecting the Rights of Unaccompanied Immigrant Children Rethinking Juvenile Detention in Harris County HAY Center: Helping Youth Beat the Odds...

lawyer

THE HOUSTON

inside...

Volume 48 – Number 3

November/December 2010

Protecting Youth at Risk

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contents Volume 48 Number 3

November/December 2010

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18

FEATURES Frustrations: 10 Sextual Why the Law Needs to Catch Up to Teenagers’ Texts

By Meghaan C. McElroy

Discipline Goes to Court: 18 Student The Advent of Campus Policing and Class C Ticketing in Texas Public Schools

By Deborah Fowler

Place to Call Home: 22 AProtecting the Rights of

22

32

Unaccompanied Immigrant Children

By Sara V.C. Goldberg and Joy E. Sanders

Juvenile 28 Rethinking Detention in Harris County

By Keri D. Brown and Nancy H. Baird

Youth 32 Helping Beat the Odds...

HBA Partners with HAY Center to Serve Those Aging Out of Foster Care

By Tara Shockley

The Houston Lawyer

Cover Photo: Mural at the Houston Alumni and Youth (HAY) Center Used by permission of HoustonWorks, USA. Photo by Brooke Eshleman.

The Houston Lawyer (ISSN 0439-660X) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, 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.thehouston lawyer.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. For article REPRINTS, please contact Wright’s Reprints: 1-877-652-5295. ©The Houston Bar Association, 2010. All rights reserved.

2

November/December 2010

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ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & FRIEND is proud to announce that

sammy ford IV

formerly with susman godfrey law clerk to the honorable jerry e. smith, united states court of appeals, fifth circuit university of texas school of law (j.d. with honors) harvard university (a.b. Magna cum laude) has joined our firm

the firm also congratulates bar leaders

benny agosto, jr. president elect - hispanic national bar association

daniel d. horowitz, iii chair - texas trial lawyers association advocates board

johnny n. garza, jr. president - hispanic bar association of houston

nick c. nichols

muhammad s. aziz

randall o. sorrels*!

johnny n. garza, jr.

benny agosto, jr.*

chelsie king garza

clyde j. “jay� jackson, iii*

brant J. stogner

daniel d. horowitz, iii*

sammy ford iv

frank j. battaglia, m.d., j.d. medical director

800 commerce street houston, tx 77002 telephone (713)222-7211 toll free (800)870-9584 facsimile (713)225-0827

* board certified-personal injury trial law, texas board of legal specialization

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! board certified-civil trial law texas board of legal specialization

contents Volume 48 Number 3

November/December 2010

34

38

departments Message 6 President’s You Should Try It!

By T. Mark Kelly the Editor 8 From Protecting Children

in the Age of the Internet

By John S. Gray

Spotlight 34 Committee Juvenile Consequences

45

46

Partnership: Using Positive Reinforcement to Keep Youth Offenders Out of the System

By Keri D. Brown

36 At the Bar Reviews 38 Media The Other Wes Moore: One Name, Two Fates

Reviewed by Lisa Brindle Talbot

A Practical Guide to Federal Evidence, Ninth Edition Reviewed by Jennifer C. Chiang Trends 40 Legal United States Supreme Court

Says “Maybe” to Business Method Patents

By Al Harrison

Destruction of Electronic Evidence: What is the Standard for an Adverse Inference Jury Instruction?

By Gary Wiener

45 OffHavetheYouRecordBeen Naughty or Nice?

Santa Bill Wants to Know

By Angela L. Dixon in Professionalism: 46 ATheProfileHonorable Al Bennett The Houston Lawyer

Judge, 61st Civil District Court

To The Editor 47 Letter Placement Service

48 Litigation MarketPlace 4

November/December 2010

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Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Abrams Scott & Bickley, L.L.P. Adair & Myers PLLC Ahmad, Zavitsanos & Anaipakos, P.C. Ajamie LLP Allen Boone Humphries Robinson LLP Andrews Myers Coulter & Hayes, P.C. Bair Hilty, P.C. The Bale Law Firm, PLLC Barker Lyman, P.C. Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann, House & Gibson Brown McCarroll L.L.P. Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley L.L.P. Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Cochran Baker Williams & Matthiesen LLP Cokinos Bosien & Young Conley Rose P.C. Connelly • Baker • Wotring LLP Cooper & Scully, P.C. Cozen O’Connor Crady, Jewett & McCulley, LLP Currin, Wuest, Mielke, Paul & Knapp, PLLC David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Diamond McCarthy LLP Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski L.L.P. Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Drucker, Rutledge & Smith, L.L.P. Ebanks Taylor Horne L.L.P. Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Essmyer, Tritico & Rainey, L.L.P. Ewing & Jones, PLLC Farnsworth & Von Berg, L.L.P. Fibich Hampton & Leebron, L.L.P. Fisher, Boyd, Brown & Huguenard, LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming & Associates L.L.P. Foreman DeGeurin & Nugent Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Goldstein, Faucett & Prebeg, L.L.P.

Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harberg, Huvard, Jacobs & Wadler, LLP Harris, Hilburn & Sherer Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hays McConn Rice & Pickering, P.C. Heard, Robins, Cloud & Black, L.L.P. Heim, Payne & Chorush, L.L.P. Hicks Thomas LLP Hirsch & Westheimer, P.C. Hogan Lovells US LLP Holm I Bambace LLP The Hudgins Law Firm Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson, DeLuca, Kennedy & Kurisky, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones, Walker, Waechter, Piotvent, Carrere & Denegree, L.L.P. Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kasowitz Benson Torres & Friedman LLP Kelly Hart & Hallman, LLP Kelly, Sutter & Kendrick, P.C. Kroger Frisby LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP Manning, Gosda & Arredondo, L.L.P. McGinnis Lochridge & Kilgore LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Myers, Dale & Associates Nathan Sommers Jacobs Nickens Keeton Lawless Farrell & Flack LLP Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Okin Adams & Kilmer LLP Osha Liang LLP Pagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue & Kidd, L.L.P. Phelps Dunbar LLP Phillips & Akers, P.C. Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Roach & Newton, L.L.P. Roberts Markel P.C. Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C.

Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Seyfarth Shaw LLP Shannon Martin Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris, LLP Singleton Cooksey LLP Slusser Wilson & Partridge LLP Smith & Carr, P.C. Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. The Spencer Law Firm Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Steele Sturm P.L.L.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Sutherland Asbill and Brennan LLP Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson & Henneman, LLP Westmoreland Hall Maines & Lugrin PC Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wong, Cabello, Lutsch, Rutherford & Brucculeri, P.C. Wright Brown & Close, L.L.P. Yetter Coleman LLP Ytterberg | Deery LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P. Firms of 25-49 Attorneys Adams & Reese LLP Baker & McKenzie LLP Beck Redden & Secrest, L.L.P. Gibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLP Howrey LLP Hughes Watters Askanase LLP Jones Day Littler Mendelson, PC Looper Reed & McGraw, P.C. Morgan, Lewis & Bockius LLP Olson & Olson LLP Susman Godfrey LLP Firms of 50-100 Attorneys Akin Gump Strauss Hauer & Feld LLP Baker Hostetler LLP

Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Martin Coats I Rose Gardere Wynne Sewell LLP Jackson Walker L.L.P. King & Spalding LLP Martin, Disiere, Jefferson & Wisdom, L.L.P. Porter & Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord Bissell & Liddell LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc Lyondell Petrochemical Company MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University 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

president’s message

By T. Mark Kelly Vinson & Elkins LLP

How Do We Keep Our Children Safe?

T

The Houston Lawyer

his issue of The Houston Lawyer addresses some of the most important problems that face us as a society today: How do we keep our children safe and ensure they have the opportunity to grow and succeed? You will find many startling statistics about at-risk youth that will provoke thought and, I hope, action. And you will hear about many things being done by the legal community, the schools, social services and law enforcement to stem those statistics.

Serving as president of the Houston Bar Association provides a unique opportunity to see all that our organization does to focus on the needs of children. It has been one of the stated objectives of my year to further the reach of our organization in this area. I have witnessed the activities of our many committees and sections as they strive to develop programs to help educate and empower future generations. If you want to join this effort, the HBA offers many opportunities. Here are some things you can do through your bar association: Partner with a doctor to educate children about drugs and alcohol.

The HBA’s Interprofessional Drug Education Alliance (IDEA) Program sends teams of lawyers and physicians into elementary schools throughout Houston to educate fifth graders about the legal and medical dangers of alcohol, drugs and tobacco.

This 18-year-old partnership has reached more than 43,000 young children by showing – not just telling – them how these substances affect their minds, bodies and futures. The HBA pairs you with a

6

November/December 2010

summons if they are called. The HBA promedical professional, provides orientation vides materials to help you tell them about and training, and can even provide you the history of the jury system, how it works with props to enhance the presentation. and how it preserves the right to justice for It takes just a few hours of your time, and all, regardless of their we do the program financial or social statwice a year.

“You will find many tus. You can speak to startling statistics one class period or Tutor or mentor a several, depending on middle school student about at-risk the schools’ requests. through the Adopt-ASchool Program. youth that will If you practice juFor 18 years, the provoke thought and, venile law, speak to HBA has been a partchildren and teens ner with B.C. Elmore I hope, action. that are part of a Middle School in the And you will hear court-ordered North Forest Indeprogram to give them pendent School Disabout many things a second chance. trict, one of the most The Juvenile Coneconomically-disadbeing done...to stem sequences Program vantaged districts in those statistics.” is a partnership of the area. Through this the HBA, the Harris program, you can tuCounty District Attorney’s Office, the Hartor students in math and reading, talk to ris County Juvenile Probation Department them about the importance of books and and the Houston Police Department. It gives reading in their lives, take them on field a second chance to youth, some as young trips, provide school supplies and do many as 10, who have been arrested for misdeother things to enhance their learning enmeanor crimes. If they attend this program vironment. Tutoring takes only two hours with a parent and meet other requirements twice a month; other programs even less. of the court, they can have their case disAt a luncheon early in the school year at missed. This may keep them from enterB.C. Elmore, the staff of the school exing a system that can be a downward spiral pressed their appreciation over our longtoward adult crime and incarceration. The standing partnership with B.C. Elmore and program is held once a month and a reprehow much of a difference it has made. sentative from each of the partners speaks for about 30 minutes.

Teach high school students about the importance of good citizenship through Help provide a home for families who jury service. would otherwise not be able to afford one.

This program teaches high school seniors, This can be as easy as contributing to the who are about to become eligible for jury HBA’s Habitat Construction Fund Drive, duty, why it is so important to answer a jury

thehoustonlawyer.com

which is going on right now, or as handson as joining the construction crew. Habitat for Humanity is a worldwide, ecumenical organization that provides decent, affordable housing for low-income families.

Having a safe place to call home can be the most important step in determining a child’s future. This year’s house, built with funds provided by HBA members, will be our 14th.

Give a family touched by HIV/AIDS a happier holiday season.

Through the HBA’s AIDS Outreach Committee, you or your law firm can adopt a family whose lives have been affected by the HIV/AIDS of a parent or child. You can provide food, gifts and other necessities these families would do without, and show them that someone cares about their wellbeing.

Donate to the upcoming HBA/HAY Center drive for youth aging out of the foster care system.

You can read more about the HBA’s involvement with the Houston Youth and Alumni (HAY) Center in this magazine. This spring, the HBA will conduct a drive to stock a “ready room” that will offer house wares, furniture, clothes and other items for youth who face their first independent living arrangement after years of foster homes.

Some of these youth have lived in as many as a dozen foster and group homes. If they are in the HAY Center programs, they are trying to better their lives and build successful futures. Your donations can help them construct a foundation.

These are just some of the programs in which any HBA member can join the effort to help at-risk kids rise above dire circumstances and pursue a brighter future.

In the New Year, I hope you will consider participating in one or more of these programs. They take so little of your time and can have such a big effect on the life of a child or teen.

For information on any of these programs, contact the HBA office at 713-7591133.

713.840.1000

jatkinson@linscomb-williams.com www.linscomb-williams.com

Strategies for Wealth

thehoustonlawyer.com

November/December 2010

7

from the editor

By John S. Gray Gardere Wynne Sewell LLP

Associate Editors

Keri Brown Baker Botts L.L.P.

Catherine Le Law Firm of Catherine Le

Robert W. Painter The Painter Law Firm

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Tamara Stiner Toomer Attorney at Law

8

Protecting Children in the Age of the Internet

I

n this issue, The Houston Lawyer has put together a collection of articles that may prove to be more valuable to our community than the purely legal articles we routinely publish. That is because this issue is dedicated to the risks our children face in today’s computerized world of social networking, texting and internet browsing. While not all of us have young children, many have school-age nieces, nephews or cousins, or are otherwise in a position to influence children through Big Brothers/Big Sisters, Scouting, or youth programs at local houses of worship. While we may be experts in the law, few of us are experts in identifying the risks the children in our lives may already be confronting at school or on the internet, and even fewer of us really know how to teach children to avoid the harms those risks pose. And those risks are ever-changing.

I cannot over-hype this problem enough. I know that just about everyone has been warned of the dangers of internet chat rooms and that many parents actively warn their children not to talk to people online that they don’t know. But children are curious, naïve, they don’t always listen and they love to explore new technology. Consequently, the statistics of child abuse, peer bullying and high risk behavior that occurs either during internet chat sessions or as a result of them is alarming. Just as alarming is the fact that the dangers are not limited to pre-teens. Yet, we adults often become more complacent with our teenagers, trusting that they are older, wiser and more mature (anyway that is what my children constantly claim). Unfortunately, most teenagers seem shockingly naïve when it comes to developing friendships and even more intimate relationships over the internet.

Today’s children spend an inordinate amount of time chatting with people (friends and strangers) on social networking sites such as My Space and Facebook. Although these sites provide a sense of safety since you have to accept someone as a friend in order to chat, they also offer unique risks. Sparing you the details, suffice it to say

November/December 2010

thehoustonlawyer.com

that statistics regarding internet-related harm to children is frightening. We all need to be vigilant and watch for signs that the children in our lives might be spending too much time online, and to know when to pull the plug or otherwise redirect their attention.

Towards the goal of informing you about the problems at-risk children here in Houston are facing, we bring you five feature articles that discuss some aspects of this problem and what the HBA is doing to help educate our children about cybersafety and to help those most at risk – children aging out of foster care. There is also a special focus on what our police and the HBA are trying to accomplish through the juvenile justice system. Caroline Pace, an editorial board member of The Houston Lawyer, has done an excellent job of coordinating the articles as our guest editor for this issue. She deserves our gratitude and thanks for her yeoman-like efforts to find and edit the various articles. Without her efforts and the hard work of all the members of The Houston Lawyer editorial board, the continued publication of this fine magazine would not be possible.

If you want to find out more about the whole spectrum of risks Houston children confront consider logging onto http://childrenatrisk.org. Children at Risk is a nonprofit, non-partisan, research, educational, and advocacy organization focused solely on the well-being of Houston children. It tracks and publishes statistics and identifies trends on over 140 quality-of-life indicators in its “Growing Up in Houston” publication. Those indicators cover a wide range of issues that affect our children’s safety, education, physical and mental health, and overall well being. If you prefer a more national perspective, Congress recently released “Youth Safety on a Living Internet,” a report that reviewed industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content, etc. Available at www.ntia.doc.gov/ reports/2010/OSTWG_Final_Report_060410.pdf.

BOARD OF DIRECTORS President

Secretary

T. Mark Kelly

David A. Chaumette

President-Elect

Treasurer

Denise Scofield

Brent A. Benoit

First Vice President

Past President

M. Carter Crow

Barrett H. Reasoner

Second Vice President

Laura Gibson

DIRECTORS (2009-2011)

Alistair B. Dawson Jennifer A. Hasley

Benny Agosto, Jr. Warren W. Harris

Hon. David O. Fraga Daniella D. Landers

DIRECTORS (2010-2012) Todd M. Frankfort John Spiller

editorial staff Editor in Chief

John S. Gray Associate Editors

Keri D. Brown Robert W. Painter Tamara Stiner Toomer

Catherine Le Don Rogers

Editorial Board

Julie Barry Angela Dixon Dori Kornfeld Goldman Farrah Martinez Caroline C. Pace Joy E. Sanders Hannah Sibiski Mark R. Trachtenberg N. Jill Yaziji

Sharon D. Cammack Don D. Ford III Al Harrison Judy L. Ney Maidie Ryan Mark Schuck Lisa Brindle Talbot Gary A. Wiener

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim Administrative Assistant

Ronald Riojas

Ashley G. Steininger

Membership Assistant

Administrative Assistant

Billy Salinas

Bonnie Simmons

Committees & Events Director

Receptionist/Resource Secretary

Janice Trojan

Lucia Valdez

Committees & Events Assistant

Director of Education

Ashley Sugg

Lucy Fisher Continuing Legal Education Assistant

Amelia Burt

Community Education Assistant

Natasha Williams

Communications Director

Communications Assistant/Web Designer

Tara Shockley

Brooke Eshleman

Advertising sales Design & production

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November/December 2010

9

Sextual Frustrations:

Why the Law Needs to Catch Up to Teenagers’ Texts

By Meghaan C. McElroy I. Introduction Today’s youth has introduced a new word into the American vocabulary – “sexting.”

The media-driven term combines “sex” and “texting” to describe the practice of teens sending sexually suggestive text messages or nude or semi-nude photographs either of themselves or of other teens by cell phone or email. Of course, while sexting is not unique to teenagers, the focus of the news media has been on the prevalence of this phenomenon among teens and the prosecution of teens engaging in sexting on charges of child pornography. The fixation on this behavior among teenagers highlights the concerns surrounding teenage sexting, especially the legal quagmire for addressing these alleged crimes.

Teens have met differing fates at the hands of state prosecutors intent on addressing the sexting issue – some received warnings, some received convictions as child pornographers, and some fought back seeking legal redress against the prosecutor. The fate that is most troubling is the prosecution of teens under child pornography laws and the long-lasting repercussions of labeling a teen a sex offender for the rest of his or her life. Undeniably, sexting among teens must be addressed, monitored, and curtailed; the question, however, remains whether the criminal justice system is the best avenue for addressing what some would characterize as quintessential hormone-driven teenager behavior. After all, teenagers are bound to have lapses in judgment during their developmental years, but is it the state prosecutor’s role to teach these misguided teens what is right from wrong or is that task better left to parents and schools?

Perhaps the most telling story evidencing the need to address sexting among teens is the tragic suicide of an eighteenyear-old Cincinnati girl, Jessica Logan, in 2008. During her senior year of high school, Logan sent nude pictures of herself to her boyfriend, but when the rela-

tionship ended, he sent the pictures to other high school girls.1 In true mean girl form, these girls began to harass Logan.

Logan became depressed and habitually skipped class in an effort to avoid the harassment. Ultimately, the pain and embarrassment were too much for Logan to bear, so she hanged herself in her bedroom two months after graduation.

Another example of the negative repercussions of teen sexting is the case of the then 18-year-old Florida teen, Phillip Alpert. Just as the typical sexting story goes, his 16-year-old girlfriend emailed him nude photos of herself when the teens were happy and mistakenly in love.2 When the relationship went sour, Alpert, angered by the rejection and in a sleeping-pill induced stupor, forwarded the photos in a mass email to her parents, grandparents, teachers, and friends. Days later, the police arrested Alpert for distributing child pornography. Albert was subsequently convicted under Florida’s child pornography laws and sentenced to five years probation.

Now, at age 20, Albert will be a registered sex offender until he is 43 years old, a stigma that this confused and immature teen will never be able to escape.

The stories of teens like Jessica Logan and Phillip Alpert demonstrate the harm that can arise from sexting gone awry, namely, embarrassment, sexual exploitation, selfdestruction, and criminal convictions. In most cases, however, sexting is simply a sophomoric indiscretion of normal teenagers preoccupied with sex and fixated on the thrills of electronic communications.

Even Disney teen stars such as Miley Cyrus and Vanessa Hudgens are guilty of taking provocative pictures of themselves and emailing them to their boyfriends. While the teens who engage in sexting may be deserving of punishment, especially those like Alpert who exploit personal photographs meant to be kept private, these teens are not child pornographers.

The inherent flaw in the legal system is that the law cannot catch up with the technology that has given rise to the phenomenon of sexting. Consequently, state prosecutors reacted based on the only le-

gal arsenal available to them – child pornography laws. Rational state lawmakers, however, eventually recognized that new laws needed to be passed to specifically address teenage sexting. Now, after the initial frenzy of teenage sexting and the decline of the prosecutorial witch hunt, the focus of the legal debate on sexting should be whether criminalization is appropriate and, if appropriate, how to properly classify and punish the variety of sexting activity.

II. The Rationales for Child Pornography Law Unquestionably, creating, possessing, or distributing child pornography is and should be a crime, but the voluntary act of teens sending and receiving nude or seminude photographs should not fall within the punishable acts contemplated by child pornography statutes. Moreover, even the more reprehensible act of a teenager forwarding the nude or semi-nude photographs to friends should not be classified as a child pornography offense. Prosecutors’ use of child pornography statutes to punish the sexting activity of teens goes beyond the legislative intent of such laws and ultimately hurts the class of individuals that child pornography statutes are meant to protect.

The United States Supreme Court first enunciated the rationales for punishing child pornography in New York v. Ferber.3 The Court determined that child pornography is a category of speech outside the protection of the First Amendment and, consequently, states have greater leeway in regulating pornographic depictions of children than other pornographic materials, which must be considered obscene under the Supreme Court’s Miller standard to lack First Amendment protection.4 The Court initially stated that states have a compelling interest in protecting the “physical and psychological well-being of a minor.” The Court then articulated the harm to children depicted in child pornography as being two-fold.

First, the production of child pornography harms the children involved because “the

use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.” Second, the distribution of child pornography harms the children involved because “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by [the materials’] circulation.”

Another rationale developed by the Ferber Court for imposing severe criminal penalties on the selling, advertising, and promotion of child pornography is that aggressive prosecution is necessary to “dry up the market” and decrease exploitation of children. Ultimately, the primary purpose of child pornography statutes is to shield children from the sexual abuse that occurs in the production, and the only practical means for combating the production problem is to criminalize the possession5 and distribution as well.

The Supreme Court reaffirmed the rationales for child pornography statutes in Ashcroft v. Free Speech Coalition.6 In Free Speech Coalition, the Supreme Court held unconstitutional the provisions of the federal Child Pornography Prevention Act outlawing “virtual” child pornography – i.e., materials created using only computer-generated children or youthful looking adults – because virtual child pornography is not the product of child sexual abuse and, therefore, is not completely devoid of First Amendment protection. The Court in Free Speech Coalition emphasized that “Ferber’s judgment about child pornography was based upon how it was made, not on what it communicated.” Thus, the decision in Free Speech Coalition reiterates that the motivation behind prohibiting child pornography is to prevent the sexual exploitation of children in the creation process.

Based on the rationales articulated by the Supreme Court, prosecuting teenagers for sexting under child pornography statutes makes no sense. If the focus of child pornography law is to curtail what goes on in the creation of child pornography, namely, child abuse and sexual exploitation of children, then punishing teens for

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sexting under child pornography statutes must be based on the same basic principles. Accordingly, the teenager who takes a nude or semi-nude photograph of himself or herself must be sexually exploited or abused during the creation of the photograph to classify sexting as a child pornography crime. Because sexual exploitation of the teen only occurs with

the potential future act of forwarding the photograph to third parties, not the actual creation of the photograph, the use of child pornography statutes as the legal vehicle for punishing sexting is inherently flawed. Therefore, prosecutors should not be charging teenagers under child pornography laws and state lawmakers should be considering alternative avenues

HBA, HYLA Join Forces to Make Cyberspace Safety

By Tara Shockley Program Available to Local Schools The Houston Bar Association (HBA) and the Houston covered on the DVD. Talking about the issues may Young Lawyers Association (HYLA) have teamed up make it easier for a student that is being bullied to provide students and their parents with informa- either online or at school to come forward. tion on cyberspace safety through the distribution “We don’t necessarily expect students to raise of a new DVD, “R U Safe? Protecting Yourself in Cy- their hands and say, ‘Hey, I’m being bullied.’ berspace.” The award-winning DVD was developed But we’re giving them a program that puts the by the Texas Young Lawyers Association through a education in their hands so they can make better grant from the Texas Bar Foundation. “R U Safe?” decisions,” Barksdale said. She added that many includes components for elementary, middle and young people find it easier to bully someone in the high school students, as well as parents, that cover anonymous land of cyberspace because they are topics including cyber bullying, social networking, not directly faced with the consequences. chat rooms, “sexting,” and online predators.

In addition to educating children and teens on The HBA contacted how to protect themselves 26 school districts in the and how to report suspicious greater Houston area to activity, the videos address offer copies of the DVD to some of the legal issues each school, as well as involved in online activities private schools. The HYLA that can get them in trouble has developed a speakers with the law. program that will send an “The R U Safe? video is attorney to schools and an excellent resource for parent-teacher organizaschools and parents on what tions to present a 30-45 they need to know about minute supplemental cyberspace and the legal presentation that adramifications of certain ondresses how colleges/ line behavior,” said Courtney universities/recruiters E. Palm, president of the use social media and Houston Young Lawyers offers practical advice to Association. “I would encourall age groups on how HBA President Mark Kelly and HYLA President Court- age schools and families to to protect themselves. get informed through the R U ney Palm with the R U Safe? DVD. To date, 18 school districts and 34 private schools Safe? program.” have requested DVDs or are providing a link to the Barksdale said more colleges and employers are DVD, and speakers are scheduled at some schools looking at what prospective students or employees beginning in November. put online, and that there are sophisticated pro“The Houston Bar Association is enthusiastic grams being developed for retrieving that informaabout partnering with the Houston Young Lawyers tion. It is important for children, teens and parents Association to provide this outstanding program to know about that in order to protect themselves in local schools,” said Mark Kelly, president of the now and in the future.

Houston Bar Association. “The initial response tells “Our volunteers are doing a really good job of us this is an issue that presents challenges for coordinating this program, and I am very thankful schools, parents and students as they try to balto them for their hard work,” she said. “You don’t ance the positive aspects of the Internet and social really see the benefits of this type of education until media with some of the dangers of irresponsible or you go out to the schools. If we don’t do it, who uninformed use.” will?”

“R U Safe?” is available for viewing and downAnita Barksdale of Fulbright & Jaworski L.L.P. loading through a link on the HBA site, www.hba. chairs the HYLA R U Safe? Committee. She said org, and at www.tyla.org or you may request a there has been a lot of interest from schools in DVD by calling 800-204-2222, ext. 1529. having an attorney talk to students about issues 12

November/December 2010

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for addressing this volitional, albeit misguided and juvenile, act of teens.

III. The Application of Texas’ Child Pornography Statutes to Sexting Texas criminalizes the creation and production of child pornography as well as the possession and distribution. To date, no law has been introduced into the Texas legislature to address sexting among teens. Consequently, if a state prosecutor decides to pursue a teenager for sexting, the teenager will be charged under Texas’ child pornography statutes. Depending on the particular sexting act in question, a teen charged under Texas’ child pornography laws could be guilty of a second or third degree felony, with a prison sentence of up to 20 years.

While sexting is generally defined as the practice of teens sending sexually suggestive text messages or nude or semi-nude photographs either of themselves or of other teens by cell phone or email, sexting can manifest itself in a variety of forms – no single type of minor, reason, image, or situation characterizes sexting. Despite the different shades of sexting, the most stereotypical incidents are the following: (1) girlfriend sends boyfriend a nude picture of herself in an effort to impress him; (2) boyfriend, after the relationship ends, sends the picture to some friends; and (3) one of boyfriend’s friends sends the picture to another friend unsolicited, who forgets to delete the text message. All of the above teens could be charged with a child pornography offense in Texas and be required to register as sex offenders, a punishment that most would agree does not fit the crime.

Section 43.25 of the Texas Penal Code makes it a third degree felony, punishable up to ten years in prison, for a person to knowingly produce, direct, or promote “a performance that includes sexual conduct by a child younger than 18 years of age.”7 The statute defines “sexual conduct” to include “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” A court could easily construe a nude or semi-nude pho-

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tograph sexted by a minor to be a lewd exhibition of the genitals or female breast.

The statute defines “produce” to include “any conduct that directly contributes to the creation or manufacture of the sexual performance.” When a teenager takes a nude or semi-nude picture of himself or herself, the teenager is producing a performance that includes sexual conduct, as defined by Section 43.25. Thus, the girlfriend who takes a nude picture of herself could be guilty of the felony of “sexual performance by a child.”

Section 43.26 of the Texas Penal Code makes it a third degree felony, punishable up to ten years in prison, to knowingly or intentionally possess “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.”8 Sexual conduct has the same meaning assigned by Section 43.25, and photographs are included in the definition of “visual material.” Consequently, the girlfriend who sexts the nude picture as well as the boyfriend who receives the

nude picture could both be found guilty of the felony of “possession or promotion of child pornography.” Moreover, each friend and subsequent third party who receives the nude picture by cell phone or email could be prosecuted for this crime of possession and face serious jail time and the mark of a registered sex offender.

Section 43.26 further criminalizes the knowing or intentional possession with intent to promote “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.”9 The definition of “promote” encompasses distribution, circulation, and dissemination of child pornography.

Accordingly, the boyfriend who sends the nude picture of his ex-girlfriend to his friends is guilty of the second degree felony of possession of child pornography with intent to distribute, punishable up to 20 years in prison. Further, each teen that forwards the picture via text or email is guilty of this second degree felony.

While the sexting activity of Texas teens

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falls within the purview of the state child pornography statutes, prosecuting teens for the felonies of “sexual performance by a child” or “possession or promotion of child pornography” seems too harsh a punishment, even for those teens who forward the original picture without the taker’s consent or knowledge. The basic fact remains that application of laws targeting child pornography to minors who engage in sexting goes far beyond teaching a lesson – a child pornography conviction based on sexting could ruin a teen’s life. Luckily, prosecutors in Texas have not gone after teens for sexting with the same vengeance as prosecutors in other states. Perhaps then, a legislative response is not needed in Texas to address the issue and, instead, Texans should rely on parents and schools to educate teens on the perils of sexting.

IV. Recent Legislative Responses to Sexting In 2009, lawmakers in 11 states introduced legislation aimed at sexting, while in 2010, lawmakers in 16 states introduced or considered legislation aimed at sexting.10 Currently, only six states – Arizona, Illinois, Nebraska, North Dakota, Utah, and Vermont – have adopted sexting laws to respond to the issues that have arisen in prosecuting teens for child pornography.11 Each state has taken a different legislative approach to tackle teens’ sexting proclivities, evidencing the lack of a consistent legal framework for dealing with sexting. For example, Vermont, North Dakota, and Utah reduced certain incidents of sexting to misdemeanors, whereas Nebraska decriminalized certain sexting activity by creating affirmative defenses to the state’s child pornography offenses.12 While these states should be commended for taking the lead in trying to find the proper legal avenue for addressing sexting, their responsive legislation leaves room for improvement.

For instance, legislators in Vermont chose to criminalize the act of sexting for minors, but removed certain sexting behaviors from the reach of the state’s child

pornography laws. Section 2802b(a)(1) of the Vermont Statutes states that “[n]o minor shall knowingly and voluntarily and without threat or coercion use a computer or electronic communication device to transmit an indecent visual depiction of himself or herself to another person.”13 Section 2802b(a)(2) states that “[n]o person shall possess a visual depiction transmitted to the person in violation of [Section 2802b(a)(1)].”14 Section 2802b(a), therefore, prohibits a minor from sending an indecent photo of himself or herself and prohibits any person, adult or minor, from possessing such an indecent photo.

The punishment for minors under either subsection is a misdemeanor in juvenile court, and minors who violate Section 2802b(a) cannot be tried under Vermont’s traditional child pornography laws unless they are repeat offenders. If a court has previously adjudicated the minor under Section 2802b(a), the prosecutor may try the minor under the child pornography statutes, but the minor will not be required to register as a sex offender.

Despite Vermont’s effort to address sexting behavior and remove it from the realm of Vermont’s child pornography statutes, Section 2802b is defective. First, the misdemeanor exception for creation and distribution in Section 2802b(a)(1) solely covers the distribution by the original picture taker – any subsequent distribution down the line still can be prosecuted under Vermont’s child pornography laws.

Second, the misdemeanor exception for possession in Section 2802b(a)(2) solely covers the possession of a photo sent in violation of Section 2802b(a)(1). Consequently, only the possession by the teen who receives the picture from the original picture taker falls within the purview of the misdemeanor possession exception – any teen who subsequently receives the picture still can be prosecuted under Vermont’s child pornography laws. Thus, the Vermont statute only seems to address the sexting behavior of the teenage lovebirds – the minor-sender who takes the photograph of herself and sends it to her boyfriend and the minor-recipient who

merely keeps the image to himself.

While the behavior of the teenage lovebirds is obviously less deserving of criminal punishment, the behavior of those minors who forward sexted images downstream also does not deserve to be prosecuted under child pornography statutes. Even though most of the harms associated with sexting – i.e., embarrassment, shame, loss of potential job or educational opportunities – arise from the dissemination of the images to unintended recipients, child pornography laws do not provide the appropriate avenue of legal redress given the longterm ramifications of labeling minors sex offenders for the rest of their lives. The purpose of child pornography laws is to protect children from sexual abuse and exploitation, not punish them. Thus, lawmakers and prosecutors who wish to punish teens to teach them the lesson that sexting is wrong should not seek retribution under statutes meant to protect minors. Teenagers can be educated on the perils of sexting without facing extended prison sentences and registration as sex offenders.

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The weaknesses of these recent laws aimed at sexting hopefully will create the necessary dialogue among lawmakers, prosecutors, parents, educators, and minors on how best to handle the social situation of sexting and whether the legal system is best equipped to teach minors the necessary lesson regarding the dangers of sexting.

IV. Conclusion The fixation by the news media on sexting has left prosecutors, lawmakers, and parents grappling for solutions and a means to deter this problematic teenage behavior. While the initial approach for addressing sexting – prosecution under child pornography statutes – proved to be too harsh a punishment for the behavior, the recent legislative responses are proving to be equally defective. If the legal system is going to be used to punish and deter these misguided teenage acts, then states must safeguard against prosecutors using child pornography statutes to prosecute sexting crimes. Based on the

contemplated purpose and intent of child pornography laws to shield children from the sexual abuse and exploitation that occurs in the pornography’s creation, it is nonsensical to prosecute teenagers who voluntarily send nude or semi-nude photographs of themselves to other teenagers under child pornography statutes. Moreover, use of child pornography laws to criminalize the more obviously culpable conduct of teenagers forwarding sexted pictures still results in a punishment too retributive for the act.

Undoubtedly, sexting should be addressed and controlled, but not at the expense of labeling a teen a sex offender.

Teenagers who are found guilty of child pornography offenses will not only learn the negative repercussions of sexting, their lives will forever be ruined all on account of juvenile and confused behavior.

While the task of educating teens about the consequences of sexting is likely best left to parents and schools, legislators that seek to intervene should carefully craft legislation to remove the various forms

of sexting activity from the reach of the state’s child pornography statutes.

Even though the legal framework for addressing sexting issues may be murky, one thing is crystal clear – teenagers who sext are not child pornographers.

Meghaan C. McElroy is an associate in the Labor and Employment Practice Group of Haynes and Boone in the firm’s Houston office.

Endnotes

Mike Celizic, Her Teen Committed Suicide Over ‘Sexting,’ MSNBC.COM, Mar. 6, 2009, http://today.msnbc.msn.com/ id/29546030.

2. Gil Kaufman, Sexting Leads to Teen Having to Register as a Sex Offender, MTV.COM, Feb. 11, 2010, http://www.mtv.com/news/ articles/1631734/20100211/story.jhtml.

3. See New York v. Ferber, 458 U.S. 747 (1982).

4. See Miller v. California, 413 U.S. 15 (1973).

5. The Supreme Court in Osborne v. Ohio ruled that the same rationales articulated in Ferber justified a ban on the possession of child pornography. See Osborne v. Ohio, 495 U.S. 103 (1990).

6. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

7. TEX. PENAL CODE ANN. § 43.25(d).

8. TEX. PENAL CODE ANN. § 43.26(a).

9. TEX. PENAL CODE ANN. § 43.26(e).

10. See National Conference of State Legislatures, Sexting Legislation 2009, http://www.ncsl.org/default.aspx?tabid=17756 (last visited Sept. 22, 2010); National Conference of State Legislatures, Sexting Legislation 2010, http://www.ncsl.org/?tabid=19696 (last visited Sept. 22, 2010).

11. See supra note 10.

12. See VT. STAT. ANN. tit. 13, § 2802b; N.D. CENT. CODE § 12.1-27.1-03.3; UTAH CODE ANN. § 76-10-1204(4)(b)-(c); UTAH CODE ANN. § 76-10-1206(2)(b)-(c); NEB. REV. STAT. § 28-813.01(3); NEB. REV. STAT. § 28-1463.03(5)-(6).

13. VT. STAT. ANN. tit. 13, § 2802b(a)(1).

14. VT. STAT. ANN. tit. 13, § 2802b(a)(2).

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By Deborah Fowler

Student Discipline Goes to Court: The Advent of Campus Policing and Class C Ticketing in Texas Public Schools

In a little over two decades, a paradigm shift has occurred in the Lone Star State. The misdeeds of children—acts that in the near recent past resulted in trips to the principal’s office, corporal punishment, or extra laps under the supervision of a middle school or high school coach, now result in criminal prosecution, criminal records and untold millions of dollars in punitive fines and hefty courts costs being imposed against children ages 10 through 16.1 Ryan Turner, General Counsel and Director of Education, and Mark Goodner, Program Attorney and Deputy Counsel Texas Municipal Courts Education Center.

S

chools in Texas have historically been safe places for teachers to teach and students to learn—even in crime-ridden neighborhoods, and that is true today. Yet, discipline of students for nonviolent, low-level offenses is increasingly moving from the school house to the court house.

Disrupting class, using profanity, misbehaving on a school bus, student fights, and truancy used to mean a “trip to the principal’s office.” Increasingly, such misbehavior results in a Class C misdemeanor ticket and a trip to court for thousands of Texas students and their families each year. Ticketing at school is having a disproportionate impact on minority and special education students—and even elementary school students are being ticketed by campus police, according to the latest research from Texas Appleseed, a non-partisan public interest law center.

It is conservatively estimated that more than 275,000 non-traffic Class C tickets are issued to juveniles each year based on information from the Texas Office of Court Administration (TOCA). Low reporting of juvenile cases to TOCA by justice of the peace courts suggests that

the number of tickets issued to juveniles is likely to grossly exceed 275,000 annually. While it is impossible to pinpoint how many of these tickets are issued by campus police (also known as School Resource Officers or SROs), the vast majority are issued for offenses most commonly linked to school-related misbehavior— disruption of class, disorderly conduct, disruption of transportation, truancy, and student fights ticketed as assault.

In Houston, where the school district has created one of the largest stand-alone school police forces in the state, there were 5,763 Class C misdemeanor tickets issued at school in 2008-09, an increase from 4,852 tickets written the year before.2 The ticketing of students at school raises an important public policy question: Are the courts best suited to address lowlevel student misbehavior, none of which is weapons-related and none of which is new to Texas public schools?

Today, most Texas public schools have a police officer assigned to patrol hallways, lunchrooms, school grounds, and after-school events. Campus policing is the largest and fastest growing area of law enforcement in Texas, according to its own professional association.3 And, it should come as no surprise that the growth in school-based policing has coincided with an increase in Class C misdemeanor ticketing in schools.

Texas Appleseed’s interest in the “criminalization” of student misbehavior, the subject of a growing body of state and national research, stems from our threeyear examination of Texas’ “school-toprison pipeline,” which has focused on how school disciplinary policies impact school dropout and future involvement in the justice system. Our earlier research documented that African American and special education students, and to a lesser extent Hispanic students, are overrepresented in in-school and out-of-school suspensions, expulsions and referrals to Disciplinary Alternative Education Programs, compared to their representation in the total student population. Available data now suggests that these students

also are disproportionately represented in Class C misdemeanor ticketing at school, which is introducing more young people to the justice system.

According to the Public Policy Research Institute at Texas A&M University, “the single greatest predictor of future involvement in the juvenile system is a history of disciplinary referrals at school.” Early intervention and policy changes at the state and local levels can interrupt this cycle and prevent the loss of more young people to the Texas justice system.

Major Findings: Class C Misdemeanor Ticketing in Texas Schools To better understand the impact of ticketing on Texas public school students, Texas Appleseed submitted an Open Records Request to the 167 Texas school districts that have created their own police departments, requesting Class C ticketing data for a five-year period (2001-02 through 2006-07) broken down by race or ethnicity, the student’s age, the nature of the offense, and the special education status of the student receiving the ticket. Texas Appleseed also wrote to 800 municipal courts and 900 justice of the peace courts requesting similar Class C ticketing data.

Twenty-two school districts and four municipal court districts responded affirmatively to Texas Appleseed’s request.

What follows are highlighted findings based on all reporting jurisdictions which, in 2006-07, represented about a quarter of all Texas students: • Increase in ticketing. More than 90 percent of participating jurisdictions reported an increase in the number of tickets issued to students at school over a two- to five-year period, with many increasing ticketing by 25 percent and some more than doubling the number of tickets issued. This is in marked contrast to the statewide 14 percent decrease in referrals to the juvenile justice system between 2000 and 2008.

• Greatest predictor of ticketing.

Where a child attends school, not the

nature of the offense, is the greater predictor that a Class C ticket will be issued at school for low-level student misbehavior. While large numbers of tickets are issued in Texas’ largest school districts (4,402 tickets in Dallas ISD in 2006-07, for example), this practice is not limited to large school districts: Brownsville ISD, 2,846 tickets; Corpus Christi ISD, 2,095; Alief ISD, 1,926; and Waco ISD, 1,070 (2006-07).

• Ticketing for low level offenses.

The most common misdemeanors for which students receive Class C tickets are: non-violent Disruption of Class or Transportation, Disorderly Conduct, and curfew violations (leaving campus without permission).

• Overrepresentation of minority and special education students. African American and special education students, and to a lesser extent Hispanic students, are disproportionately represented in Class C misdemeanor ticketing on Texas public school campuses -- at rates double their representation in the school population in some districts.

• Ticketing of children as young as six. Texas Appleseed’s research revealed that some districts have ticketed children as young as six years old. Over a six-year period, districts reporting the largest number of tickets to elementary school students are: Dallas ISD, 1,248 tickets; Alief ISD, 355; Wichita Falls ISD, 99; Austin ISD, 91; Humble, 75; Pasadena, 43; and United ISD, 48.

• Fines and court costs. When a student is charged with a non-traffic related Class C misdemeanor, the student’s parent must appear in municipal or justice of the peace court with their child.4 The fine for a Class C misdemeanor can be up to $500.5 The base fee for court costs associated

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with misdemeanors is $52, but courts may add additional fees. The seven courts providing information for this study reported assessing $60 to more than $500 in fines and court costs for a Class C ticket, and it is not uncommon for a student to receive multiple tickets in a single school year.

• Bench warrants for arrest for failure to appear in court. If a youth fails to appear in court, the judge can issue a bench warrant for the student’s arrest.6 One study of a large, urban Texas municipal court found that 30 percent of African American and 59 percent of Hispanic youth who received Class C Misdemeanor tickets at school had a warrant issued for their arrest as the result of the failure to appear on a Class C charge they received in connection with a schoolbased offense.7 • A criminal record. Youth convicted of a Class C misdemeanor do not enjoy the protections that apply in the juvenile setting.8 For example, there is no comparable intake process and no opportunity for a prosecutor to exercise discretion to dismiss a case before it reaches the court. Unlike in juvenile court, a conviction or entering a “guilty or no contest” plea to a “fine-only misdemeanor” in municipal and justice courts results in a youth’s having a criminal record. Normally, a conviction in a municipal or justice court is a matter of public record; however, in an effort to address concerns surrounding the impact this has on juveniles, the legislature passed a bill in 2009 requiring the Texas Department of Public Safety (DPS) to issue nondisclosure orders in these cases.

Still, massive problems persist with this system, one of which is that the non-disclosure orders do not appear to be reaching the appropriate entities, possibly as a result of a backlog at DPS.9 20

November/December 2010

• Arrests for failure to pay fines or complete community service. Students who fail to pay a court-imposed fine or complete court-imposed community service to resolve a Class C ticket issued at school can be arrested at age 1710 —and incidents of this happening in Hidalgo County are currently being challenged in court.

• Insufficient training of school police officers. Of particular concern is the lack of specialized training requirements for police officers working in schools. What training exists is heavily weighted towards traditional law enforcement techniques, including Class C ticketing. What is missing is training in child development, how to respond when a child’s disability is a factor in misbehavior at school, what de-escalation techniques are effective in working with school-age children, and the role of a campus police officer in reinforcing campuswide positive student behavior.

• Insufficient data keeping on ticketing. Only 15 of the 22 school districts providing ticketing data to Texas Appleseed could disaggregate it by the student’s race or ethnicity, age or grade-level, and only two districts by special education status.

Still, there is sufficient data to conclude that minority and special education students are overrepresented in Class C ticketing—and to raise serious concerns about the ticketing of young children. Today, planning for improved school performance is data-driven, yet there is no requirement that important data be collected to inform school disciplinary policy.

The Texas Education Agency does not require school districts to report student ticketing and arrest data, and very few school districts submit school-based crime data to the Texas Department of Public Safety for inclusion in the department’s annual Uniform Crime Report. Absent in

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many school districts is any ongoing meaningful review of the impact of school policing on the school environment and student behavior, the impact of students missing school to attend court, and the financial impact on low-and moderate-income families whose children are assessed fines and court costs for non-violent misbehavior at school.

Class C ticketing cases originating in schools are not only crowding municipal and justice court dockets, but are introducing young people to the justice system for behaviors that, historically, have been addressed at school. It is also creating burdens for low-income families.

In Their Words A parent shared with Texas Appleseed her son’s experience receiving multiple tickets at school: I received a call from the principal who wanted to inform me that my 12-year-old son was ticketed. She said she was proud of my son because he tried to avoid the incident. An older child came up behind my son and pushed him down in the hallway, attempting to start a fight. My child did not physically touch the other child, but he did curse at him. Both of the boys were ticketed and sent to in school suspension since there was only an hour of school left. Our court date for this ticket is... on a school day. I’m a single parent financially struggling to merely pay basic bills. I can’t afford an attorney, but at this point my son’s future is at stake. This is very sad because he is a smart and sweet kid. He’s in Pre-AP courses... He’s been diagnosed with ADHD, and much of the (earlier) “disturbing the educational environment” charges are related to ADHD symptoms, or class clown type of behavior.

Policy Recommendations & Summation To reverse a disturbing trend toward “criminalizing” low-level student misbehavior, it is essential to find alternative ways to create a safe school environment where all are respected, and where teachers can teach and students can learn. Research-based Positive Behavioral Support

(PBS) programs have repeatedly proven successful in schools across the country in creating a positive school environment, improving student behavior, and reducing the need to suspend, expel, ticket or otherwise remove students from the regular classroom to address behavior problems.

PBS programs involve campus-wide training in strategies to engender and reinforce positive student behavior, as opposed to reacting to negative behavior. To dramatically reduce the practice of issuing Class C misdemeanor tickets at school, Texas Appleseed is recommending: • Training and incentives for Texas public schools to implement PBS programs.

search that Class C ticketing in Texas public schools has out-paced development of adequate data collection and reporting to measure its effectiveness, and the development of officer training programs specifically tailored to schoolbased policing. It is an issue deserving close attention if we are serious about eliminating a “school-to-prison pipeline” in Texas.

Deborah Fowler is Legal Director of Texas Appleseed.

• Requiring campus police officers or SROs to participate in PBS training.

(Currently, in some districts with PBS programs, such as Austin ISD, campus police officers do not participate in campus-wide PBS training, and incidents of Class C ticketing remain high (2,653 tickets in 2006-07)).

Endnotes Ryan Kellus Turner & Mark Goodner, Passing the Paddle: Nondisclosure of Children’s Criminal Cases (2010), on file with author.

2. Brian Thevenot, School District Cops Ticket Thousands of Students, THE TEXAS TRIBUNE, June 2, 2010.

3. Mike Kennedy, Teachers with a Badge, AMERICAN SCHOOL & UNIVERSITY, Feb. 1, 2001 (Tucson, AZ).

4. Tex. Code of Crim. Proc. §45.0215.

5. Tex. Code of Crim. Proc. §12.23.

6. Tex. Code Crim. Proc. §45.048 & 45.059.

7. Elyshia Aseltine, Juvenile Justice in the Shadows: Texas Municipal Courts and the Criminalization of Student Misbehavior, 176 (2010) (unpublished Ph.D. dissertation, The University of Texas), (on file with author).

8. Turner & Goodner, supra note 1, at 6.

9. Id. at 1.

10. Tex. Code Crim. Proc. §45.045 & §45.046.

1.

the right fit and experience

won’t be easy to find.

where do

we star t?

• A statutory change to decriminalize (i.e., eliminate) Disruption of Class and Disorderly Conduct as a Class C misdemeanor for which a youth can be ticketed at school.

• Require ongoing specialized training for all school-based law enforcement personnel to heighten awareness of child development, the impact of disabilities on behavior, discipline issues relevant to special education, de-escalation techniques, and how to foster positive behavior at school.

• Require school districts to collect the following data in a searchable database and report it to the Texas Education Agency: number of tickets issued at school by nature of offense; date issued; the child’s age, race/ethnicity, and special education status; and outcome (fine and court cost amount, community service imposed).

It is clear from Texas Appleseed’s re-

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November/December 2010

21

By Sara V.C. Goldberg and Joy E. Sanders

A Place to W Call Home: Protecting the Rights of Unaccompanied Immigrant Children

ith only $55 in his pocket, 17year-old Manuel1 begins his journey to the United States riding on top of a train from Guatemala to Mexico.

This mode of transportation is known as El Tren de la Muerte—The Train of Death. Three months before this journey, the grandmother who raised Manuel passed away. Estranged from his parents for years, and with no other family, he is struggling to survive in his hometown of Poptun. He believes his mother is in California.

Once in Mexico, Manuel works for two months as an agricultural worker harvesting olives and cucumbers so that he can earn money to pay for the rest of his trip. He travels by bus to the Arizona border where he meets two other teenagers bound for the U.S. He and his travel companions find a coyote who will take

them to America for $1,500 each. Since they do not have the money, the young boys instead walk for two days to Arivaca, Arizona where they are almost immediately detained by Customs and Border Protection agents (“CBP”). Manuel is deported to Mexico, but when Mexican officials learn that he is Guatemalan, he is sent back to the U.S. where he is jailed in detention centers in Tucson and Phoenix.

After being detained in Arizona, Manuel is transferred to Houston, Texas where he is afforded expanded protections once the determination is made that he is an unaccompanied child.

Every year, thousands of children like Manuel risk life and limb traveling alone to the United States to reunite with their families, or to escape violence, poverty and perilous living conditions. Over the past several years, much progress has been made to protect immigrant and refugee children who come to the United States alone. Manuel’s story is a product of these achievements. Through the pro bono assistance of the University of Houston’s immigration clinic, Manuel received Special Immigrant Juvenile Status and eventually legal permanent residence. Nevertheless, there is much work to be done to truly protect these at-risk youths.

rors. The risks and challenges of making the trip appear as a beacon of hope Children like Manuel are referred to relative to their current situation. Motias unaccompanied alien children, or vations range from economic need and “UACs,” and include those under the age family unification to wanting to escape of 18 who have no lawful immigration forced prostitution and gang recruitment. status and no parent or guardian in the The choice is really U.S. Over the past not a choice; it is the decade, the number “Historically, when only option. of unaccompanied apprehended by immigration Historically, when children who arrive apprehended by imin the U.S. has inofficials, these children migration officials, creased significantwere lost in a system that 2 these children were ly. More than 80,000 lost in a system that juveniles are appremade no distinction between made no distinchended at the border their treatment and that of 3 tion between their annually. In 2007, similarly apprehended adults. treatment and that over 8,000 children of similarly apprewere detained as Children were detained in hended adults. ChilUACs.4 Others are jail-like environments dren were detained returned or “kicked in jail-like environback” almost imsuch as criminal facilities ments such as crimmediately with or for juveniles.” inal facilities for juwithout a verifiveniles. But imporable determination tantly, being in the U.S. as an unlawful as to whether they are unaccompanied. immigrant is a civil, not criminal, offense An unknown number enter undetected under federal law. Therefore, this type of and are either later apprehended, or join detention was inappropriate; reports of the population of undocumented immiabuse were common, and these facilities grants. Texas has the most apprehensions were inadequate for children with behavof unaccompanied children of any state.5 ioral or mental health issues.6 If the journey is perilous and most chilThings began to change for the betdren are ultimately caught, why do they ter with the enactment of the Homeland come? The answer is that most of these Security Act of 2002. Section 462 of this children are desperate and out of options.

Act, which was a comprehensive overhaul Some come to escape unspeakable horof national security agencies, transferred care and placement of UACs to the Office

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November/December 2010

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of Refugee Resettlement (“ORR”). When DHS apprehends a child without lawful immigration status and determines that the child is unaccompanied, the child is transferred to ORR’s Division of Unaccompanied Children’s Services (“ORR/ DUCS”).7 The 2002 Act had a profound effect on the care, custody and placement of UACs; however, some problems have persisted with respect to conditions and locations of facilities.

A next step towards systematic change came with passage of the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”) in 2008.

The TVPRA provides that custody and placement arrangements should be the least restrictive and factor in the interests of the child.8 In addition, the TVPRA made procedural and substantive changes to legal relief, including increasing the availability of options for UACs seeking relief from removal from the U.S.9 One form of relief that was expanded by the TVPRA is Special Immigrant Juvenile Status (“SIJS”), which is available to UACs who have been abused, abandoned or neglected. A child qualifies as a Special Immigrant Juvenile if a domestic juvenile court determines that reunification with one or both parents is not possible and return to the country of nationality or last residence is not in the child’s best interest.10 Children were previously required to obtain consent from DHS to pursue the requisite determination in juvenile court, but the TVPRA transferred this authority to ORR.11 Further, the TVPRA expands waivers for several grounds of inadmissibility for Special Immigrant Juveniles that seek Permanent Residence status in the U.S. Inadmissibility refers to circumstances that, if present, can prevent an immigrant from obtaining an immigration benefit. By expanding the waivers available to children, the Government is extending leniency to children, thereby acknowledging under immigration law that minors have diminished capacity and should not be held accountable or treated as adults.

Asylum is available if a UAC is unable 24

November/December 2010

or unwilling to return to their country of origin due to a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.12 This standard is applicable to all claims whether made by a child or an adult. One effect of the TVPRA is that it gives the Asylum Office of the U.S. Citizenship and Immigration Services (USCIS) initial jurisdiction over asylum claims made by UACs. The Asylum Office is a dedicated unit primarily responsible for processing asylum applications, and it is thus better equipped to handle applications by UACs. The problem that attorneys often face is that the type of persecution and fear suffered by UACs does not fit squarely into one of the five grounds. While most applications are made on account of membership in a particular social group, just what constitutes a social group has not been clearly defined. Cases based on vulnerability of street children, gang recruitment, or domestic violence, child abuse, rape or sexual assault, present unique challenges to arguing for classification as a social group. What complicates matters further is that these forms of persecution are difficult to document because the children-victims may have been too fearful to report their experience or their pleas may have been ignored by local authorities. The outcomes of these types of claims are mixed, and although there has been some recent progress in gang recruitment cases, adjudicators have generally been reluctant to liberally create new social groups. More legal talent and advocacy is needed to help shape the law so that it better suits the needs of these at-risk children.

A relatively recent development in immigration law is the creation of the T and U nonimmigrant visa classifications. The T visa is an option for adult and child victims of human trafficking who are willing to assist law enforcement in investigating or prosecuting trafficking crimes. However, if the victim is under the age of 18 and unable to assist law enforcement because of resulting trauma, the victim may be el-

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igible for the relief without providing assistance. The T visa is temporary but can lead to U.S. permanent residence. The U visa is available to victims of substantial physical or mental abuse resulting from a wide range of criminal activity, where the victim has, or is likely to be, helpful with investigation or prosecution of the crime.

Qualifying criminal activity includes offenses such as sexual assault and female genital mutilation, but the activity must have occurred in the U.S. or must violate a federal law that provides for extraterritorial jurisdiction. Only 10,000 U visas are available each year. To qualify, the victim must obtain a signed certification from a law enforcement official. Obtaining permanent residence is also possible in this context.

Other potential forms of relief include claims under the Violence Against Women Act (“VAWA”), which allows abused immigrant women and children to seek legal residence in the U.S. independently of their abusers, and Temporary Protected Status (“TPS”), which allows nationals and residents from designated countries to remain temporarily in the U.S. if conditions in those countries prevent safe return.

Much has been done to reform the care, custody and forms of relief available to unaccompanied alien children. But once a child makes it into the system, determining eligibility and navigating procedural requirements to benefit from available relief is a daunting task, especially for a child who may not speak or understand English. This is because UACs are not entitled to legal counsel or guardianship and largely face these legal hurdles unrepresented. As such, the problem that persistently places these children at risk is the failure of the system to ensure access to legal representation.

As is true of all immigration proceedings, adult and juvenile alike, the law does not provide a right to counsel. These children do not have the resources to avail themselves of the relief available if there is no one advocating on their behalf, and virtually all UACs are unable

to afford paying for representation. Some argue that taxpayers should not be responsible for representation of individuals who have knowingly entered the U.S. unlawfully. However, these children’s plight is of humanitarian concern. Our justice system provides a right to counsel in criminal proceedings regardless of immigration status because we as a society believe life and liberty are fundamental rights. Here, a child’s only “crime” is often a desperate attempt to escape persecution and the consequences of being returned to the status quo can be a death sentence. Certainly then, the determinations made by immigration adjudicators in these matters affect these children’s life and liberty.

There is a continual need for attorneys willing to represent UACs on a pro bono basis. Attorneys do not need prior experience in immigration law. In Houston, for example, several organizations have taken up the call to advocate on behalf of these children. These include Cabrini Center of Catholic Charities, YMCA In-

26

November/December 2010

ternational Services, and the University of Houston’s Law Center’s Immigration Clinic. In addition to ongoing efforts, these organizations come together annually to provide a free Asylum Workshop in honor of the late Joseph A. Vail.

Another organization, the National Center for Refugee and Immigrant Children, reaches out to attorneys of all levels of experience, skill, and background to represent children or to mentor other attorneys. Furthermore, Kids in Need of Defense (“KIND”), founded by the Microsoft Corporation and Angelina Jolie, is active locally and aims to provide legal representation for 100 percent of UACs by creating a pro bono movement of law firms, corporate law departments, nongovernmental organizations and volunteers.

All of these entities provide resources and support to attorneys willing to provide pro bono services. The plight of these children has also been featured in the HBO documentary, “Which Way Home.” Lack of sympathy towards immi-

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grant populations is especially prevalent in times of economic hardship and insecurity. The time for us to protect these children is now.

Sara V.C. Goldberg is an associate at Katine & Nechman, L.L.P. where she focuses primarily on immigration law.

Joy E. Sanders practices immigration law with Fong & Associates, L.L.P., and is a member of The Houston Lawyer editorial board. She tweets about law, sustainability and community at http://twitter.com/ sandersjoy.

Endnotes 1.

2.

3.

4.

5.

Name changed to protect identity. Story is courtesy of ‘Manuel’ and his attorney, Dalia Castillo-Granados, Staff Attorney at Catholic Charities in Houston, Texas.

Wendy Young and Megan McKenna, The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 HARV. C.R.-C.L. L. REV. 247, 248 (2010).

CHAD C. HADDAL, CONG. RESEARCH SERV., UNACCOMPANIED ALIEN CHILDREN: POLICIES AND ISSUES (2008), available at http://assets.opencrs.com/rpts/ RL33896_20080131.pdf.

Id. DIV. OF UNACCOMPANIED CHILD. SERVS., DEP’T OF HUM. HEALTH & SERVS., DHS UAC APPREHENSIONS PLACED IN ORR/DUCS CARE, FY 2009 BY STATE (2009), available at http://www.acf.hhs.gov/programs/orr/programs/FY2009UAC_ ApprehensionsMap.pdf.

WOMEN’S REFUGEE COMM’N & ORRICK, HERRINGTON & SUTCLIFFE LLP, HALFWAY HOME: UNACCOMPANIED CHILDREN IN IMMIGRATION CUSTODY (2009), available at http://womensrefugeecommission.org/component/docman/ doc_download/196.

7. Homeland Security Act of 2002, Pub. L. No. 107-296, § 462, 116 Stat. 2135, 2202.

8. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 [hereinafter TVPRA], Pub. L. No. 110-457, § 235(c)(2), 122 Stat. 5044, 8 U.S.C.A § 1232.

9. DEBORAH LEE ET AL., UPDATE ON LEGAL RELIEF OPTIONS FOR UNACCOMPANIED ALIEN CHILDREN FOLLOWING THE ENACTMENT OF THE WILLIAM WILBERFORCE TRAFFICKING VICTIMS PROTECTION REAUTHORIZATION ACT OF 2008, posted on AILA InfoNet, Doc. No. 09021830 (February 19, 2009).

10. See TVPRA at § 235(d)(1).

11. Id. 12. 8 U.S.C. § 1158(b) (2006).

13. Turner & Goodner, supra note 1, at 6.

14. Id. at 1.

15. Tex. Code Crim. Proc. §45.045 & §45.046.

6.

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By Keri D. Brown and Nancy H. Baird

Rethinking Juvenile Detention in Harris County S ince the Harris County Juvenile Detention Center became a Juvenile Detention Alternatives Initiative (“JDAI”)1 site in 2007, the county has made substantial strides toward implementing reform strategies to safely reduce reliance on secure detention, while at the same time reducing juvenile crime and keeping communities safe.

In 2007, Harris County’s two juvenile detention centers had a population approaching 300 youth at any given time 28

November/December 2010

and were regularly out of compliance with state standards. Today, one facility (the Westside Command Station) has closed. Initially closed in 2009 because of a security issue, the facility is no longer needed, as the downtown Juvenile Justice Center, which has a population capacity of 250 youth, has maintained a detention population of fewer than 200 for over a year. These changes are the result of implementing JDAI, resulting in a fundamental change in the way Harris County works with youthful offenders. Through JDAI, over 250 community stakeholders

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(including these authors) are working with juvenile probation professionals in an attempt to develop better methods to deliver juvenile justice.

Perhaps the most important statistics are juvenile crime rates. From 2007 to 2009, juvenile crime in Harris County was down in many areas: • 41 percent drop in juveniles referred for murder2 • 44 percent drop in auto theft3 • 53 percent drop in felony drugs4 • 18 percent drop in burglary5 • 31 percent drop in unauthorized use of a motor vehicle6 • 14 percent overall drop in juveniles referred to juvenile probation7 • 28 percent drop in average caseload for all of juvenile probation8 As profiled in The Houston Lawyer’s November/December 2009 issue,9 Harris County JDAI efforts are spearheaded by task forces. The task forces and certain of their accomplishments to date include: • Risk

Assessment Instrument (“RAI”): The RAI has been implemented and tested for effectiveness. Since its implementation in January 2009, the detention population has decreased 19 percent. The RAI has received accolades from juvenile probation staff for providing an objective scoring system to determine whether a youth should be detained. The RAI and its effects are discussed in greater detail below in this article.

• Self-Inspection:

The self-inspection was completed and the committee’s report presented in December 2009.

Corrective action recommended in the self-inspection report is being implemented, including an increase in programming for the youth and installation of air conditioning to allow year-round use of the rooftop gym.

• Alternatives

to Secure Detention: This task force is developing a continuum of services for the release of medium-risk cases. The task force is also evaluating

current detention alternatives. In partnership with Harris County Juvenile Probation Department (“HCJPD”), the Alternatives to Secure Detention task force launched the Evening Reporting Center (“ERC”) in March 2010.

ERC was created to provide youth with supervision and educational and recreational counseling during the afternoon and evening. The youth are picked up from either school or home, and returned home in the evening. ERC is funded with state grants.

• Case

Processing: The task force is developing a “Know Your Rights” information pamphlet for youth, working to shorten the court process, and working to improve compliance with law enforcement guidelines.

• Special

Detention Cases: The task force has developed a sanctions grid for use when determining the appropriate recourse for a youth who has violated probation.

• Disproportionate

Minority Confinement: The task force is reviewing the cases of youth who have violated probation to determine the influence of bias.

• Youth Advisory Council (“YAC”): One of the more interesting developments for Harris County JDAI in 2010 is the implementation of a Youth Advisory Council, in which select youth aged 16-24 who have successfully navigated the probation process serve as peer mentors and make presentations to youth currently on probation or deferred prosecution. YAC is a win-win-win situation, as the youth council members receive a stipend and receive training on professional appearance, public speaking, and career development skills; the youth on probation receive guidance from people who have been in their unique situations; and the cost to Harris County is minimal, because JDAI pays the YAC representatives’ stipends. YAC

representatives are being integrated into the JDAI task forces.

sulting in automatic detention. The lowest potential score in this category is for Class B misdemeanors, which are typically property related offenses or offenses Risk Assessment Instrument related to possession of small amounts of The remainder of this article focuses on illegal drugs. the RAI and achievements since its impleThe next category relates to the nummentation. The Risk Assessment Instruber of offenses the youth is charged with ment is an objective, two-page evaluation in the instant situation. Following that used to determine if a youth who has been is the number of prior adjudications of charged with a crime should be held in delinquency the youth has faced. The custody for a detention hearing before an 10 severity of the prior adjudications is also Associate Judge. The Harris County Juconsidered, with venile Probation Defelonies against a partment (“HCJPD”) “Creating the RAI began person earning a completes an RAI on with a simple question: For youth more points every youth brought than other felonies, to the detention cenwhom is detention appropriate? and misdemeanors ter. The RAI is also against a person used as a telephone The JDAI Management earning more points screening instruOversight Committee than other kinds of ment when law enmisdemeanor offorcement officers developed a definition of fenses. contact HCJPD from Going hand-inthe field for records detention, confirming that hand with the numchecks and a reber of prior adjudicalease/detention decidetention is best used for tions is the number sion for youth newly youth who either represent a of active petitions charged with Class pending against the B misdemeanors and danger to their community or youth. Again, the above. severity of these alCreating the RAI who are at significant risk for legations is considbegan with a simple ered. question: For whom failure to appear in court.”

The next category is detention approscores the youth’s prior history of appearpriate? The JDAI Management Oversight ing in court. Two or more prior failures Committee developed a definition of to appear automatically result in secure detention, confirming that detention is detention. Finally, a youth who has been best used for youth who either represent released but who does not comply with a danger to their community or who are each condition of his release will be asat significant risk for failure to appear in signed points toward a finding that could court. With that philosophy in mind, the result in a detention-eligible score.

RAI Task Force developed an instrument With each category scored, a youth designed to fit those criteria. with 15 points or more will be placed in The RAI is based on a point system, secure detention. A youth with 10 to 14 with several categories in which a youth points is considered a medium risk and may be assigned points. If a youth reachwill have a conditional release, requires 15 points, he is detained, with limited ing daily checks by staff from the Youth override exceptions.

Advocate Program and compliance with The first category is the offense that other conditions tailored to the youth.11 brings the youth into custody. Committing a first degree felony or a felony against Scoring zero to nine points results in the a person earns the youth 15 points, reyouth being considered a low risk and thehoustonlawyer.com

November/December 2010

29

a release under conditions; specifically, those conditions are that he commit no new offenses, notify the department if he changes addresses or living arrangements, and appear in court as directed.

There are other conditions that will result in the youth’s mandatory detention.

For example, a youth who is an out of county or out of state runaway or has an active warrant for his arrest will be detained. The Texas Family Code also requires that a youth be held for a detention hearing if he is charged with an offense that involves the possession, use or exhibition of a firearm.

The RAI includes overrides that allow HCJPD to detain a youth who otherwise has a release-eligible score or to release a youth who otherwise has a detentioneligible score. Some factors that may result in an override include the medical or psychiatric needs of the youth or the absence of a responsible parent or guardian. These overrides are applied on a case-by-case basis, and the number of overrides ranges from 10 to 17 percent of

30

November/December 2010

total youth.

Tim Broussard, Deputy Director of Intake/Court Services for HCJPD, is a cochair of the RAI committee. Broussard was initially resistant to the idea that the RAI (“a piece of paper,” as he puts it) could better determine the likelihood of a youth reoffending than the expertise of a probation officer with decades of experience. After seeing the results, he has changed his mind. He discovered that the evidence-based instrument indeed works better than relying on the subjectivity of human nature. With the RAI in use for nearly two years, Broussard now says that he “wouldn’t dream of making a detention decision without this instrument.”

Detention decisions in the past were partially subjective and partially objective. For example, if a youth was charged with criminal mischief and caused property damage over $5,000, he was automatically detained. That result was not always appropriate because that youth was not necessarily a danger to the community or unlikely to appear in court.

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Post-RAI, a youth charged with this offense would likely be scored in the medium risk category, resulting in release with Tracker monitoring.

Another problem before the implementation of RAI was subconscious, subjective bias and preconceptions, which sometimes resulted in less than fair detention decisions. RAI levels the field, forcing the parties to be gender, race, and ethnicity-neutral. RAI requires that every youth be treated the same.

Broussard firmly believes that detention itself is not a deterrent to future crime. As he puts it, “there’s nothing magic about spending a night or many nights in the detention center that makes a kid stop committing crimes.” He believes that “if detention were truly a deterrent, then we would not have children detained time and time again, only to be released and continue to violate the law.” Instead, detention is generally appropriate only for those youth who pose a threat to the community or who are at significant risk for failure to appear. Broussard notes that

JDAI is changing the way detention is used for youth in Harris County. In his position, the RAI makes him the gatekeeper responsible for educating others about how detention is now used in Harris County.

JDAI is making Harris County more proactive and more inclusive. Community stakeholders, particularly those from the communities in which the troubled youth live, have been brought in to help Harris County find solutions to reduce the crime and recidivism rates. By any measurable standard, their work is paying off. Juvenile crime is down, the number of detained youth is down, and Harris County’s costs for juvenile probation and detention are down. The national JDAI newsletter for October 2010 reports that Harris County JDAI is saving the county $700,000 per month, according to Harris County juvenile court judges and HCJPD officials.12 With the implementation of JDAI, Harris County is finally coming into its own as a leader in proactive juvenile justice.

More work remains to be done, and future articles will focus on these accomplishments.

percent20July percent202010 percent20Final.pdf.

7.

Press Release, supra note 2.

8.

Harris County JDAI Newsletter, supra note 6.

9.

Keri D. Brown and Nancy H. Baird, Revising Juvenile Detention Procedures: Harris County’s JDAI Program,

Keri D. Brown is an associate in the Private Clients Section at Baker Botts L.L.P. and a member of The Houston Lawyer Editorial Board. She is also a member of the Harris County JDAI Self-Inspection Task Force.

Nancy H. Baird, M.Ed., is the Harris County JDAI Site Coordinator.

The Houston Lawyer, Nov./Dec. 2009, at 34.

10.

Interview with Tim Broussard, co-chair of JDAI Risk Assessment Instrument Committee and Deputy Director of Intake/Court Services for the Harris County Juvenile Probation Department, in Houston, Tex. (Oct. 5, 2010).

11.

The services from the Youth Advocate Program (“YAP�) are provided through a program called “Tracker.� In Harris County, the Tracker program started on December 14, 2009. Tracker monitors make initial contact with the released youth within 24 hours and have face-to-face contact with the youth once daily, along with one daily

Endnotes 1.

telephone contact. Contact is made either at the youth’s home or school. YAP monitors access part of the HCJPD

JDAI is a project of the Annie E. Casey Foundation.

operating system to enter progress notes for each youth

For more information, visit the national JDAI website at www.aecf.org/majorinitiatives/

in the program. Through September 27, 2010, a total of

juveniledetentionalternativesinitiative.aspx.

137 youth were monitored through Tracker. 124 of those

Press Release, Harris County Juvenile Probation

youth did not reoffend while on Tracker monitoring

Department, CHILDREN AT RISK and Community

and did appear in court as required. Thirteen youth

Leaders to Hold Press Conference to Announce Successful

either reoffended or failed to appear in court as required,

Efforts have Reduced Juvenile Crime in Harris County

resulting in a 90.5 percent success rate. E-mail from Tim

(May 19, 2010), available at www.hcjpd.org/news.asp.

Broussard, Deputy Director of Intake/Court Services,

3.

Id.

Harris County Juvenile Probation Department, to Keri D.

4.

Id.

5.

Id.

6.

Harris County JDAI Newsletter, (Harris County Juvenile

NEWS (Juvenile Detention Alternatives Initiative, a

Probation Department, Harris County, Tex.), July 2010,

project of the Annie E. Casey Foundation), Oct. 2010 (on

available at www.hcjpd.org/JDAINewsletter/Newsletter

file with the authors.

2.

3OLVING DOG FIGHTS PEOPLE FIGHTS

Brown (Oct. 6, 2010) (on file with the author).

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31

By Tara Shockley

Helping Youth Beat the Odds...

HBA Partners with HAY Center to Serve Those Aging Out of Foster Care

“D

on’t allow your circumstances to dictate who you are, and don’t become a victim of your circumstances.” Those are wise words from a young man who grew up in foster care, but beat the odds to face a successful future.1 The Houston Bar Association is partnering with the Houston Alumni and Youth (HAY) Center to help young people as they prepare for a future outside of foster care. The HAY Center is a one-stop center where foster youth and alumni, ages 16-25, can receive transition resources, 32

November/December 2010

services and support. The HAY Center offers services through the Harris County Preparation for Adult Living (PAL) Program, established by the State of Texas in 1986 to ensure that older youth in foster and substitute care are prepared to leave Harris County Protective Services for independent living. The program provides life skills training, teaches about money management, helps with education planning, provides job and workforce training, assists with transportation and housing, provides mentoring and counseling, and even helps with transitional living allowances if the youth participates fully in the PAL Program. It brings together a

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number of governmental and community-based partners to assist young people in the transition process.

The HAY Center has turned around the lives of many youth like Xavier,2 who entered foster care at age 7, then moved through 18 different group homes and programs. He lost count of the schools he attended, but remembers five different high schools. He was determined to get out of CPS as soon as he turned 18, and his caseworker told him about the HAY Center. Xavier took advantage of all the services, classes and support groups offered by the HAY Center. He enrolled in college and at 22 has earned his associates degree in applied sciences. He plans to transfer to a four-year university and earn an anthropology degree, then wants to travel the world and produce documentaries on diverse cultures.

While there are programs in other Texas cities that provide services to youth leaving foster care, Green said she is not aware of one that has a similar partnership with its local bar association.

“The HAY Center is so fortunate to have such an amazing relationship with the Houston Bar Association and the very important services the volunteers are able to provide,” said Mary Green, Director of Transitional Living Services for the HAY Center and the PAL Program. “The HBA program will allow so many of the current and former foster youth served by the HAY Center the opportunity to move forward with their lives in a productive and meaningful way.”

The HBA’s involvement with the HAY Center began in 2009 when the Speakers Bureau was asked to provide attorneys to speak as part of a legal series. The topics were chosen by the young people in the program and included criminal law, legal issues for drivers and car owners, family law, child custody, landlord tenant law, and guardianship. This sparked the interest of then-president elect T. Mark Kelly of Vinson & Elkins, who saw an opportunity to expand the HBA’s involvement with the HAY Center during his administration in 2010-2011.

“As a lawyer and a father, I have always been interested in exploring what we can do to reach out to children, who are our future, and particularly at-risk children,” said Kelly. “I learned some startling statistics regarding children who have been in foster care programs.”

In a study conducted by Chapin Hall at the University of Chicago, they found: • foster children are much more likely to be unemployed; • almost 25 percent live on the street or in shelters; • more than 75 percent of young women have been pregnant; • nearly 60 percent of young men have been convicted of a crime, and more than 80 percent have been arrested; and • only six percent had an associate or bachelor’s degree.

Nationwide, 513,000 young people live in foster care. The State of Texas ranks fourth highest in the nation, with 28,883 youth currently in foster care. In Houston alone, that number is over 6,600. The typical young person aging out of foster care in Houston has been in the system for more than five and half years and has lived in more than eight different foster homes, group facilities, shelters or treatment programs. Those exiting the foster care system are twice as likely to drop out of high school and are at great risk of arrest and incarceration.

“As lawyers and as concerned citizens, we can help them,” said Kelly. “We might not be juvenile law specialists, family law practitioners or criminal defense attorneys, but there are unique ways in which we can provide assistance to these young adults.”

This year, the Houston Bar Association is working with the HAY Center in several ways.

Sealing Records Three law firms have volunteered to handle cases from the HAY Center that involve the sealing of juvenile records.

Vinson & Elkins LLP, Baker Hostetler

LLP and Jenkins & Kamin, L.L.P. will alternate taking the cases for four months each. They will provide pro bono legal services to expunge or seal records that could keep youth from getting into college or getting a job. Ellyn Josef of Vinson & Elkins and Lynn Kamin of Jenkins & Kamin serve as co-chairs of the HBA’s HAY Center Program, with assistance from Greg Ulmer of Baker Hostetler.

On September 30, Kris Moore, an expert on juvenile records, presented a CLE program for attorneys from the three firms that will volunteer to handle cases. The HBA staff prepared an extensive resource and training manual. The firms will begin accepting cases referred by the HAY Center on December 1.

Speakers On November 17, attorneys conducted a five-hour training session for HAY Center case workers. Topics included custody, child support, sealing of juvenile records, employment, alcohol and drug laws, and landlord-tenant issues.

Through the legal lecture series, attorneys also will continue to provide speakers for youth and alumni on topics of their choosing.

Housewares/Clothing Drive This spring the HBA will conduct a drive among members to stock a “Ready Room” where youth can get clothing, housewares and other items they will need as they pre-

pare for their first independent living arrangement.

For more information about the HAY Center Program contact Ashley Steininger at 713-759-1133 or ashleys@hba.org.

Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer.

Endnotes From the HAY Center video, “Failure is Not an Option.”

Excerpts at www.haycenter.org.

2. From the HAY Center Web Site, http://www.haycenter. org/form.htm.

1.

Lynn Kamin of Jenkins & Kamin, Greg Ulmer of Baker Hostetler, Ellyn Josef of Vinson & Elkins and HBA President Mark Kelly at a planning session for the HBA’s HAY Center Project that will help youth get their juvenile records sealed or expunged.

Attorney Tom Radosevich speaks in the HAY Center Program about the consequences of juvenile crime.

This mural on the HAY Center building depicts a message of hope.

thehoustonlawyer.com

November/December 2010

33

COMMITTEE SPOTLIGHT

Juvenile Consequences Partnership: Using Positive Reinforcement to Keep Youth Offenders Out of the System

By Keri D. Brown

The Houston Lawyer

T

importance of successfully complethe Houston Bar Association’s or attending certain other programming. ing the JCP program.

Juvenile Consequences PartIn addition to the youth and his par• A probation officer from the Harris nership (“JCP”) is one of HBA’s ents or guardian, the participants in each County Juvenile Probation Departnewest committees, starting in JCP program include the following: ment explains the rules of probation 2007 as a spin-off of the now • A District Attorney’s representative and the conditions that the youth will defunct Inmate Changes Program, which discusses the consequences that the have to follow in order to satisfy the focused on educating adults about to be youth can face if he continues to vioprogram’s requirements. released from prison about their legal late the law. The District Attorney’s • A Houston Police Derights. JCP is a diversionpartment officer disary program for youth cusses the consequences in Harris County who of poor decision-making are charged with certain and being mindful of the first-time offenses. HBA friends the youth makes. partners with the Harris • In 2010, JCP added County District Attoranother partner – a repney, the Houston Police resentative from the Department, the Harris Youth Advisory Council County Juvenile Proba(“YAC”). YAC represention Department, and the tatives are youth aged 16Harris County Youth Ad24 who have successfully visory Council to present completed the juvenile a program once a month probation process. They about the consequences serve as peer mentors to a juvenile can face if he the youth, enabling the or she continues to comyouth to identify with mit offenses.

Attorney Paul St. John speaks to youth and their parents during a Juvenile Consequences Program. one of the speakers.

Youth and their parents The JCP partners are working to reduce or guardian participate in the program to representative discusses the penalties the need for secure detention and prekeep the youths’ juvenile records clean. that the youth faces from the current vent recidivism in Harris County youth.

If a youth successfully completes the JCP offense and penalties that could result The goal – to never see the youth again program and follows certain other confrom future offenses.

– is causing positive change throughout ditions, his case will never be filed and • A defense attorney educates the Harris County. he will avoid the repercussions that havyouth on the importance of maintaining a juvenile criminal record can cause. ing a clean juvenile record. Miriam The conditions that a youth must satisfy Riskind, current co-chair of JCP, ofKeri D. Brown is an associate in vary based on the youth and the offense, ten fills this role. Her goal is to let the Private Clients Section at Baker but generally include attending school, the youth understand that one bad Botts L.L.P. and a member of The following a curfew, and not committing decision should not dictate the rest Houston Lawyer Editorial Board. other offenses. Other conditions tailored of their lives. She explains the role She is also a member of the Harris to the youth might include community of the defense attorney in the juvenile County Juvenile Detention Alternatives service, watching an educational video, adjudication process and explains the Initiative.

34

November/December 2010

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at the bar

Legal Delegation The Houston Bar Association welcomed a delegation of attorneys from Malaysia, Quetta, Nepal and Ethiopia on October 5. They met with members of the HBA board of directors, the Houston Volunteer Lawyers Program and the Dispute Resolution Center to exchange ideas about the legal professions in their respective countries. The delegation was participating in the U.S. State Department’s International Visitor Leadership Program through the Institute of International Education –Houston.

Networking Luncheon Linda Glover and Debra Bruce, two of the co-chairs of the HBA Gender Fairness Committee, along with Alison Sulentic were instrumental in the success of the HBA’s first Gender Fairness Networking Luncheon of the bar year, held on October 19 at Winstead PC. The program featured lunch provided by Women of Weil and a panel discussion on “Negotiating and Implementing a Successful Part-time Practice.” The networking luncheons are held throughout the year and provide a forum for discussion on topics relevant to women attorneys.

Lawyers Against Waste Fall Project The HBA Lawyers Against Waste Committee sponsored an “Adopt A Cemetery” program on Saturday, October 16. Volunteers helped beautify

The Houston Lawyer

historic College Memorial Park Cemetery at 3600 W. Dallas, as well as helped the cemetery check maps and records to verify burial locations. The cemetery houses the burial places of over 6,000 persons, mostly former slaves, including the Rev. Jack Yates, who was pastor of Antioch Baptist Church and instrumental in the development of Houston’s Fourth Ward in the 1890s. The committee is co-chaired by the Hon. David O. Fraga, municipal court judge, and Julie Baumgarten Pradel of The Williams Companies, Inc.

HBAA Fall Coffee The Houston Bar Association Auxiliary’s annual Fall Coffee, held October 7 at the home of Travis and Sandy Sales, collected items for holiday gift bags for veterans at US VETS at Midtown Terrace and DeGeorge at Union Station, two residential facilities for veterans where the HBA provides legal advice clinics and helps with holiday parties. Left: Beuna Sales and HBA Auxiliary President Kathy Redden. Right: Jennifer Benesh, president of the Texas Lawyers Auxiliary, is welcomed by Sandy Sales.

36

November/December 2010

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at the bar

Fall Programs at B.C. Elmore Middle School The HBA Adopt-A-School Committee continued to provide programs and activities to enhance the learning environment at B.C. Elmore Middle School, the HBA’s adopted school in the North Forest Independent School District. Right: Author Mignette Patrick Dorsey spoke to students about her new book, “Speak Truth to Power: The Story of Charles Patrick,” which chronicles her father’s brave stand in 1954 against white police officers in Birmingham, Alabama who beat him after an argument over a parking space. Patrick’s resistance of oppression prior to the Civil Rights Movement united blacks, whites, politicians and the press. Left: HBA volunteers provide bi-monthly tutoring in math and reading for students who need extra help. The Adopt-A-School Committee is co-chaired by Philip A. Sellers, attorney at law, and Phyllis Y. Young of Akin Gump Strauss Hauer & Feld.

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Media Reviews

The Other Wes Moore: One Name, Two Fates

By Wes Moore Random House, 2010 www.theotherwesmoore.com

The Houston Lawyer

I

Reviewed by Lisa Brindle Talbot f you are looking for a compelling story that grabs you from the very start, you’ve found it in the book, The Other Wes Moore: One Name and Two Fates—A Story of Tragedy and Hope, by author Wes Moore.

This book is a fascinating look at the lives of two boys, both named Wes Moore. The book parallels the lives of these boys living in the same povertystricken neighborhood of Baltimore, Maryland. The similarities between the two are undeniable. Both boys are African-American, around the same age, raised in single-family households, and born into an under-privileged urban community.

Despite the haunting similarities between the boys, they take starkly different paths in life. The author, Wes Moore, has an impressive resume. He is a Rhodes Scholar, an investment banker, a combat veteran in Afghanistan, a Special Assistant to Secretary Condoleezza Rice as a White House Fellow, and now a New York Times Best Seller. The resume of the other Wes Moore is not nearly as promising. He is a convicted felon serving a life sentence without parole for the murder of a police officer during an armed robbery of a jewelry store.

The author first became captivated by the life of the other Moore after reading an article in The Baltimore Sun. The ar38

November/December 2010

ticle detailed the massive manhunt for a suspect by the name of Wes Moore, who was wanted for murder. After following the story of the robbery and the subsequent trial to its conclusion, he wrote a letter to other Moore asking: “What were the differences between us? What happened in each of our lives that caused two dramatically different fates?” This correspondence led to a series of letters from both men discussing their lives, the challenges they faced, and the decisions they made that led them to the very place they are now. The book chronicles their stories and explores the answer to the question: why did one Wes Moore succeed where the other did not? As the author profoundly concludes, “The chilling truth is his story could have been mine.

The tragedy is my story could have been his.”

This is a dynamic book that shows the role that education and luck play in the lives of so many of our youth. It’s a book that forces you to confront ways that you can encourage our youth to make good choices and to rise above their bleak circumstances. Moore is doing exactly that by ensuring that two organizations focused on children, US Dream Academy and City Year receive a portion of the book’s proceeds.1 US Dream Academy focuses on assisting and creating opportunities for children who have one or both parents incarcerated. City Year unites young people of all backgrounds for a year of full-time service, giving them the skills and opportunities to change the world.

Lisa Brindle Talbot is a member of The Houston Lawyer Editorial Board. She is an associate at Cotten Schmidt & Abbott’s Houston office. Her practice areas include commercial, insurance and environmental litigation.

Endnotes 1.

http://theotherwesmoore.com/book-proceeds/

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A Practical Guide to Federal Evidence, Ninth Edition

By Anthony J. Bocchino and David A. Sonenshein.

336 pages, paperback.

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Reviewed by Jennifer C. Chiang n the ninth edition of A Practical Guide to Federal Evidence, authors Anthony J. Bocchino and David A Sonenshein manage to achieve both usefulness and concision in 336 user-friendly pages.

Both authors spent years teaching evidence and trial advocacy in the classroom at Temple University Beasley School of Law and at the National Institute for Trial Advocacy. This experience shines through in every page of A Practical Guide, from the thoughtful organization and helpful tips, to the readily understood prose.

The book contains nine chapters, the

Media Reviews

complete Federal Rules of Evidence and a Quick Reference Guide. Each chapter is organized by subject category of objection. Within each chapter there are short sections dedicated to specific issues and objections. The first few sections of each chapter cover general issues and objections, and the later sections cover specific issues and objections. Each section contains definitions, applicable rules, examples of both the objection in use as well as how to respond, and helpful commentary. Issue tables to help illustrate concepts are also found throughout the book.

One of this book’s great successes is in its ease of use. The authors organized each chapter by broad subject categories such as “Hearsay” or “Relevance” so the reader can still locate what he or she is seeking even if they forgot the applicable rule.

Once the reader reaches the desired section, everything he or she needs to make a competent courtroom objection is laid out on two to four pages. The commentary provides straight-forward, succinct explanations on how and when to use the objection and even refers to useful federal case law and notes from the Federal Rules of Evidence Advisory Committee.

Another helpful feature is the Quick Reference Guide. In this part the authors compiled all of the objections in the book and listed them in alphabetical order. Under each objection are the relevant rule numbers, as well as an example of how to make the objection and form a response to the objection.

Overall, A Practical Guide to Federal Evidence is a simple and effective practice guide for litigators. New lawyers will find it to be a fast-track tool for evidence and objections. It is also a great refresher course for attorneys used to state court who find themselves in a federal court matter.

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39

LEGAL TRENDS

United States Supreme Court Says “Maybe” to Business Method Patents

I

By Al Harrison

The Houston Lawyer

n Bilski et al. v. Kappos, 130 S.Ct. 3218 (2010), the United States Supreme Court struck down the Federal Circuit’s “Machine-or-Transformation” test for patent eligibility on the basis of it not being the sole patent-eligibility test under 35 U.S.C. § 101. Section 101 specifies four independent and broad categories of patent-eligible inventions or discoveries: (1) processes, (2) machines, (3) manufactures, and (4) compositions of matter.

After fitting into one of these four eligible categories based upon the subject matter and context of an invention, a corresponding application seeking to attain the Patent Grant must also satisfy other conditions and requirements under 35 U.S.C.: novelty in the field of the invention (§ 102), “nonobviousness” relative to the prior art (§ 103), and detailed description fully defining embodiments of the invention (§ 112). A plurality of the Court held that a business method invention may be patent-eligible as a process provided that the method is not excluded as an abstract idea.

The Unanimous Opinion Justice Kennedy, writing for a unanimous Court, articulated that Bilski’s patent claims for a method of instructing energy traders how to hedge against risk associated with price fluctuations were unpatentable abstract ideas that failed to satisfy § 40

November/December 2010

101. Supreme Court precedents carve out a threefold § 101 exclusion devolving to laws of nature, physical phenomena, and abstract ideas. Justice Kennedy couched this exclusion as constituting modest constraints upon § 101’s broad, permissive new and useful patent-eligibility principles commensurate with Congressional intent that ingenuity should be accorded liberal encouragement. While Supreme Court precedent established the Machine-or-Transformation (“M-o-T”) test as constituting a useful and important investigative tool, the Court held that the Federal Circuit, sitting en banc, violated a fundamental principle of statutory interpretation by relying exclusively upon this M-o-T test to affirm the Board of Patent Appeals and Interferences which, in turn, affirmed the nonpatentability ruling of the patent examiner who rejected the application on the grounds that the invention was not implemented on a specific apparatus, but merely manipulated an abstract idea, and concomitantly only solved a mathematical problem.

According to the Federal Circuit’s M-o-T formulation, an invention is a § 101 “process” only if: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or different thing.” But, Justice Kennedy emphasized that courts have been cautioned not to read into the patent laws limitations and conditions that Congress has not expressed either in statutory verbiage or as intentions. He observed that the contemporary meaning of “process” was devoid of a requirement that it be tied to a machine or to an article-transformation. Not unlike all statutory construction, in patent law, unless otherwise defined, words should be interpreted in accordance with their ordinary and common meaning.

Bilski’s patent application claimed a stepwise methodology for instructing buyers and sellers how to protect or hedge against risk associated with price fluctuations in commodities trading in the energy

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marketplace. Claim 1 delineated the basic concept of hedging and Claim 4 reduced the underlying concept of hedging to an equation. The Court unanimously held that these claims constituted an unpatentable abstract idea, and that the dependent claims (Claims 2-3 and 5-8) devolved to broad examples of hedging uses in commodities and energy markets, including use of conventional random analysis techniques to derive input to the implicated equation.

The remainder of the Bilski opinion was split between a plurality opinion authored

by Justice Kennedy and joined by Chief Justice Roberts, Justice Thomas and Justice Alito; a concurring opinion authored

by Justice Stevens and joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor; and another concurring opinion authored by Justice Breyer and joined by Justice Scalia.

The Plurality Opinion Writing for the plurality, Justice Kennedy articulated that a § 101 “process” does not preclude business methods and that stare decisis generally contemplates methods of doing business that would include technologies that enable business to be conducted with efficiencies heretofore unknown. For instance, in the context of the patentability of computer software design and infrastructure, and implementations thereof, he recognized that, as times change, technology and other innovations typically progress in unexpected ways. Accordingly, relying upon a rule that categorically denies patent protection for inventions in areas not contemplated

by Congress would frustrate the purposes of the patent law. As argued by the Houston Intellectual Property Law Association, among other amici curiae, the M-o-T test applied to Information Age inventions would create uncertainty regarding the patentability of significant technological innovations such as advanced diagnostic medicine techniques, data compression,

LEGAL TRENDS

digital signal manipulation, and computer programming design and infrastructure (“software”).

The plurality further observed that categorical exclusion of business methods would be undermined by § 273(b)(1) of the Patent Statute, wherein an infringer alleged to infringe upon a patented methodology can assert prior use (of the implicated methodology) as a defense. Hence, by contemplating and allowing such a defense by statute, Congress expressly acknowledged the existence of business method patents.

Nevertheless, the Court cautioned that, while § 273 opens the door for business method patent-eligibility, there is no suggestion of broad patentability thereof. The Court also cautioned that this well-established exclusion hardly affords the judiciary carte blanche to impose other limitations inconsistent with the verbiage—and the purpose and design—of the patent statute.

Justice Kennedy noted that Supreme Court precedent has focused on the need to consider an invention as a whole, rather than dissecting its underlying claims into old and new elements — and then essentially ignoring the presence of the old elements in the ensuing analysis. While Bilski’s claims recited the basic concept of hedging against risk, the Court stated that hedging is well known to be a fundamental economic practice ingrained into our national system of commerce and which is routinely taught in introductory finance classes.

Justice Stevens’ Concurring Opinion Justice Stevens, in his concurrence, articulates that the plurality has committed serious interpretive errors in its §101

“process” analysis. Noting that the plurality appears to suggest that any process that invokes an abstract idea is itself an unpatentable, abstract idea, he indicates that the Court has never suggested any such rule which would tend to undermine a host of patentable processes. Furthermore, the suggestion that this analysis turns on the category of patent involved is

also devoid of any precedent pointing to the inquiry varying by subject matter. He observes that the Court does not recite a satisfying account of what constitutes an unpatentable abstract idea, nor whether the M-o-T criteria was used to arrive at the conclusion of patent-ineligibility.

Justice Stevens articulates that Congress, pursuant to its Constitutionallyauthorized power under Art. I, § 8, Cl. 8, “[t]o promote the Progress of . . .useful Arts, by securing for limited times to . . . Inventors the exclusive Right to their . . . Discoveries,” has passed patent laws granting certain exclusive rights over particular inventions and discoveries as a means of encouraging innovation.

But asserting that the term “process” in § 101 is not a “‘process’ in the ordinary sense of the word” and taking exception to the Court positing that the word “process” must be understood in light of its

“ordinary, contemporary, common meaning,” Justice Stevens regards the plurality opinion as being a flawed approach for a statute that relies on complex terms of art developed against a specialized historical background.

Mindful of § 101 being a “dynamic provision designed to encompass new and unforeseen inventions,” and of corresponding “historical conceptions of patent-eligible subject matter” preferably being perceived at a high level of generality, Justice Stevens articulates that, while there have been a plethora of innovations in fields of business, methods of doing business fall outside of the subject matter that has “historically been eligible to receive the protection of our patent laws,” and likely extend beyond the protections afforded by the modern patent statute. Significantly, since Congress enacted the latest (1952) Patent Act against the background of a well-settled understanding that a series of steps for conducting business cannot be patented, Justice Stevens opined that such considerations ought to guide the § 101 process analysis and concomitant patenteligibility of business methods analysis.

He observes that the historical clues of the metes and bounds of a § 101 patentable “process” converge on the conclusion that a business method is not a “process.” He then rationalizes that business innovation generally does not entail the same kinds of risk as does more traditional, technological innovation. Justice Stevens further articulates that business method patents tend to prohibit a wide swath of legitimate competition and innovation. Accordingly, while concurring in the judgment, Justice Stevens disagrees with the Court’s disposition because, on the basis of “process”

thehoustonlawyer.com

November/December 2010

41

LEGAL TRENDS

The Houston Lawyer

within the meaning of § 101, methods of doing business are not, in themselves, covered by the patent statute.

Justice Breyer’s Concurring Opinion In his concurrence, Justice Breyer agrees with Justice Stevens that a general method of engaging in business transactions is not a patentable “process” within the meaning of 35 U. S. C. § 101. Justice Breyer seeks to harmonize what he perceives as “substantial agreement” among the Court’s Justices on many of the fundamental issues of patent law raised, with the objective of achieving clarity and resolving the law “in this highly technical area.” He articulates that there are four points that are consistent with both the opinion of the Court and Justice Stevens’ concurrence.

Justice Breyer first notes that, in view of the Court having been careful to interpret the scope of the Patent Act to “determine not only what is protected, but also what is free for all to use,” in so doing, the Court has long held under § 101 that phenomena of nature (though just discovered), mental processes, and abstract intellectual concepts are not patentable.

This threefold exclusion to § 101 patentability prevents preemption of the public’s access to the “basic tools of scientific and technological work.”

Second, Justice Breyer recaps the genesis of the Federal Circuit’s M-o-T test. He notes that, in a series of time-tested cases, the Court has stated that transformation and reduction of an article to a different state or thing is a crucial clue to the patentability of a process claim devoid of any machines. The M-o-T test has been repeatedly invoked to help determine process patentability under such circumstances.

Third, while this M-o-T test has always been a “useful and important clue,” it has never been relied upon by the Court solely as the threshold for determining patentability. Rather, the Court has emphasized that a process claim satisfies § 101 when, “considered as a whole,” the claim “is 42

November/December 2010

performing a function which the patent laws were designed to protect.” The Court unanimously held that the Federal Circuit erred by exclusively relying on the M-o-T criteria. Fourth, the Federal Circuit’s rejection of its previously-announced “useful, concrete, and tangible result” approach to patentability—which was not based upon any holding or statement of the Court— should not be taken as disapproving of that sensible determination.

Al Harrison is an intellectual property lawyer and patent attorney, and is a member of The Houston Lawyer Editorial Board.

Destruction of Electronic Evidence: What is the Standard for an Adverse Inference Jury Instruction?

W

By Gary Wiener

thehoustonlawyer.com

hen the judge who chairs the Federal Rules Advisory Committee’s Committee on Rules of Practice and Procedure

issues an opinion regarding e-discovery sanctions, a prudent litigator would take note. When the judge happens to be based in Houston, local lawyers should perk up their ears. And when the ruling goes in a very different direction from opinions issued by another judge who arguably “wrote the book” on federal e-discovery practice, well, Judge Lee Rosenthal, you have our undivided attention.

Judge Rosenthal’s opinion in Rimkus Consulting Group v. Cammarata1 was issued only a month after New York federal judge Shira Scheindlin published her evidence spoliation ruling in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities.2 In Pension Committee, Judge Scheindlin (who had earlier authored the seminal Zubulake opinions that have shaped the federal courts’ approach to e-discovery) found that failure to implement best practices with respect to preserving electronic evidence rose to the level of gross negligence, even though no allegation had been made that the spoliating party had acted in bad faith. Judge Scheindlin issued an “adverse inference” sanction, in which she instructed the jury that there was a rebuttable presumption that the lost evidence could be presumed relevant to the case and prejudicial to the spoliating party.

In Rimkus, Judge Rosenthal applied Fifth Circuit precedent and took a different approach. There were substantial allegations that the defendants had intentionally destroyed relevant e-mails, disregarded litigation holds and court orders for preservation, and failed to comply in anything resembling “good faith” with discovery requests. It was no surprise that Judge Rosenthal found sufficient evidence that the defendants acted in bad faith.

However, instead of finding gross negligence as a matter of law (as Judge Scheindlin had) and instructing the jury that the missing evidence could be presumed

The Houston Lawyer

LEGAL TRENDS

to be adverse to the spoliating party, Judge Rosenthal gave the Rimkus jury the discretion to decide whether the defendants had, indeed, acted in bad faith, and gave them the further discretion whether to draw an adverse inference from such bad faith or not. Judge Rosenthal pointed out that in the Fifth Circuit, “the severe sanction of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith,’” and that “[m]ere negligence is not enough.”3 Among the e-discovery field, the Rimkus opinion— especially since it followed so closely on the heels of Pension Committee—was initially seen as a break in the judicial e-discovery ranks.

Commentator Ralph Losey noted, “Many commentators are spinning Judge Rosenthal’s opinion as critical of Judge Scheindlin’s work and suggest that a high level intellectual duel is going on here.”4 In point of fact, there is no conflict between Judges Rosenthal and Scheindlin.

The conflict, as Judge Rosenthal pointed out, is among the circuits.5 “The circuit differences in the level of culpability necessary for an adverse inference instruction,” she wrote, “limit the applicability of the Pension Committee approach.”6 In the Second Circuit, in which Judge Scheindlin sits, case law allows an adverse inference sanction in case of negligent destruction of evidence. However, in the Fifth Circuit, “negligent as opposed to intentional, ‘bad faith’ destruction of evidence is not sufficient to give an adverse inference instruction and may not relieve the party seeking discovery of the need

to show that missing documents are relevant and their loss prejudicial.”7 If Judge Rosenthal was merely applying the law of our Circuit, why is this so-called “split” important? Sadly, most organizations and their attorneys remain woefully unprepared to deal with the special requirements of electronic evidence.

Whether due to a stubborn reliance on the discovery protocols that have served them adequately in the past, a fear of technology that promotes a head-in-thesand approach, a prevailing sense that “these e-discovery sanctions can’t happen to me,” or even the lack of awareness within the litigation bar of the prevalence of electronic evidence and the best practices for managing it, most lawyers simply do not have ediscovery on their radar.

Rimkus is the first major federal e-discovery ruling that directly affects Houston lawyers. Rather than take Judge Scheindlin to task for her Circuit’s rather Draconian approach to e-discovery sanctions, Judge Rosenthal has merely (and quite artfully) pointed out the fractured nature of federal discovery case law as it applies to electronic evidence. This does not mean that lo-

cal counsel should take false comfort in the less-stringent Fifth Circuit standard and disregard the importance of mastering e-discovery best practices. Rather, counsel should consider Rimkus a warning shot across their bow. Now that Judge Rosenthal has pointed out the rather substantial difference in standards among the circuits, it should only be a matter of time before the U.S. Supreme Court takes up an e-discovery case that will apply a single adverse-inference standard throughout all circuits. When that happens, if a failure to apply best practices happens to you, will you be prepared to deal with the consequences?

Gary Wiener (gary.wiener@autonomy. com) is a former trial lawyer and a current e-discovery expert and trainer with Autonomy, Inc., and is a member of The Houston Lawyer editorial board.

Endnotes 1.

2.

3.

4.

5.

6.

7.

688 F. Supp. 2d 598 (S.D. Tex. 2010).

685 F. Supp. 2d 456 (S.D.N.Y. 2010).

Rimkus, supra n. 1, 688 F. Supp. 2d at 614.

“Judge Rosenthal v. Judge Scheindlin: A Bogus Battle,” e-Discovery Team, March 28, 2010, http://e-discoveryteam. com/2010/03/28/judge-rosenthal-v-judge-scheindlin-abogus-battle/.

Rimkus, 688 F. Supp. 2d at 614-615.

Id. at 615.

Id.

thehoustonlawyer.com

November/December 2010

43

HBA-CLE Online The following topics are just some of the more than 115 hours of HBA/CLE Seminars that are available online at CLEonline.com. To receive a 20% discount on HBA programs online, HBA members must call (713) 759-1133 prior to registering.

www.hba.org A Practical Approach to Assisting with Veteran’s Legal Issues Changing Practice for Changing Times: Working from Home Changing Practice for Changing Times: Going Solo Construction Law’s Dirty Dozen: Twelve Things Every Lawyer Should Know Copyright Infringement for the General Practitioner Crimes in Foreign Lands Eminent Domain for the General Practitioner Entertainment Law-Intellectual Property Protection Ethics Issues Updates: E-Discovery, Trial Prep, Advertising, Grievances, Lying & Negotiations Ethics Traps and the Texas Grievance System Family Law for the Non-Family Attorney Firing Without Fear Fundamentals in Real Estate Handling High Profile Cases: Considerations When Dealing with the Media

HIPAA Update: Privacy and Security Regulation in 2010 and Beyond Income Tax for the Solo/Small Firm Attorney Juvenile Adjudication, Disposition and Modification Law Practice Management: Building and Enhancing Client Relationships Lessons from the Courtroom Margin Tax: What Every Lawyer Needs to Know About the New Texas Franchise Tax Mediation - From the Mediator and the Litigant Nuts and Bolts of Texas Criminal Law Off to Slake Their Thirst: The Texas Dram Shop Act Offer of Settlement Under Texas Rule 167 - A Double Edged Sword Persuasive Communication for Lawyers - Both Inside and Outside the Courtroom Post-Judgment Collection Techniques Practicing Law in the IV-D Courts Prosecution and Defense for Healthcare Fraud Search & Seizure Law Update For the 21st Century Attorney

Summary Judgments: Views From the Trial and Appellate Bench Tax Return Preparer’s Penalties: What General Practitioners Need to Know and Why Ten Rules for Great Jury Selection Texas Attorney Grievance Procedures The City of Houston as Plaintiff: Litigation You Never Knew Existed The Equal Protection Clause and the Lasting Meaning of Brown v. Board of Education: From Desegregation Through Affirmative Action Admissions” The Ultimate Settlement Secret: The Advantages of §468B Qualified Settlement Funds for Medicare/ Medicaid Claims U.S. Immigration Law: Qualifying Through Employment & Family Update on Employment Law Update on Texas Juvenile Law in Harris County Voir Dire and the Jury Charge: How to Master Two Essential Trial Skills That Are Often Overlooked What to Do When ICE Comes Calling on Your Client

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OFF THE RECORD

Have You Been Naughty or Nice?

Santa Bill wants to know

By Angela L. Dixon

A

He missed virtually all of the last Christmas season due to cancer s a child, most of us remember at one point in time treatment, which was completely successful. Now that he has his sitting on Santa’s knee, answering the question of health back, Santa Bill is planning to make up for lost time this whether we have been naughty or nice and tellyear by spreading Christmas cheer as far and as wide as he can. Of ing Santa what we wanted for Christmas. For Bill course, a Santa’s job is never done, and Santa Bill spends time atFrench, Santa Claus is not just a figure you see durtending Santa conferences and meeting regularly with other Santa’s ing the holiday season; he is the jolly old elf year to exchange war stories and ideas, as well as support each other in round and is now making it his life’s work. their efforts to restore the Christmas After reading a book by the late spirit.

Art Linkletter, Santa Bill adopted his Santa Bill has special plans for the suggestions on how to make the rest off season. He will work with area of his life the best of his life. Linkletschool districts to help institute a proter said to pursue your passions and gram called Character Counts! This Santa Bill has taken that to heart. is a wonderfully successful program A trial attorney since 1983, Santa training teachers to include character Bill recently closed his formal law building in their curriculum. Most office, only retaining a virtual office districts report more than a 50-60 perfor previous clients. He has emcent reduction in referral for discipline barked on being Santa - 24/7, 365 and a significant increase in academic days a year. Just looking at Santa achievement. Since Santa is the keeper Bill, you can see the twinkle in his of the naughty and nice list, who beteyes. He possesses most of the Santa Bill French listens to one of his helpers. ter to help schools achieve similar results and demonstrate to kids physical, mental and spiritual attributes of Santa and feels he has that developing good character traits will reward them very nicely in fact been called to be Santa in as many ways as he is able and for in the future? as long as he is able. Santa Bill’s dream is to be the Santa at the end Santa Bill does not do all of this work alone. He has his very own of a Thanksgiving Day parade for the City of Houston.

Christmas Carol, his wife, whose name really is Carol. Now that Being Santa is no easy task because oftentimes, with older kids, she is retired, Santa Bill hopes she will be able to join him on his Santa Bill finds himself having to prove his very existence. “I’ve appearances in homes, country clubs, companies and other venues had several kids tell me they don’t believe in me because I couldn’t all over the Greater Houston area. possibly know where they live or there is no way I could enter their Santa Bill has a website that highlights his appearances and achouse because their parents keep the doors locked,” he said. Santa tivities at http://myownsanta.com. It’s going to be a busy season, Bill has a few tricks up his sleeves and by the time he is done, the but Santa Bill is up for the challenge. So keep a look out this holiquestioning ceases and the wish lists begin. day – Santa Bill, his sleigh and reindeer are on the way. If you don’t Santa Bill has acted in many local plays and events and particibelieve, well, that’s up to you. Santa Bill has his list and he’s checkpated in films and video projects during the last 20 years, which ing it twice; you don’t want to take a chance on being naughty, so always included Santa. He is a long time member of the Houston just be nice.

Bar Association’s Night Court production and played Santa earlier this year in the “Legal Holidays” show.

Angela L. Dixon is a solo practitioner and handles primarily civil While Santa Bill is known for his jolly disposition, things have matters. She is a member of The Houston Lawyer editorial board. not been easy for him as he was diagnosed with cancer last year. thehoustonlawyer.com

November/December 2010

45

A Profile

in professionalism

M

The Honorable Al Bennett Judge, 61st Civil District Court

The Houston Lawyer

y foundation in professionalism begins with “To Kill a Mockingbird.” Like many, I have been captivated by the mythical Atticus Finch.

The noted wordsmith President Abraham Lincoln might have said of Atticus, “He put his feet in the right place and stood firm.”

The exemplar of Mr. Finch was later personified for me by the real life examples that I encountered in history books and my own career. Justice Thurgood Marshall, Representatives Barbara Jordan and Mickey Leland, Judges Andrew Jefferson and Matthew W. Plummer, and attorney Aloysius

46

November/December 2010

thehoustonlawyer.com

M. Wickliff, Sr., just to name a few. From arguably the greatest Supreme Court litigator in history, to a man that simply refused to be told “No” when he tried to enter the Harris County Courthouse cafeteria, Atticus Finch was made real for me.

As a lawyer, and now as a judge, my personal test of professionalism is “Do I honor Representative Jordan, Judges Jefferson and Plummer, et al. in how I execute my professional duties?” I hope that if Justice Marshall had stared down at me from his perch on the bench and posed his famous question, “What is the quality of your intent?” that I could respond “The very best Sir, the very best!”

The Art of a Lawyer’s Craft Editor: I read the review [Media Reviews, September-October 2010] and I saw the movie. Please permit a second observation.

The movie Mao’s Last Dancer displays the art of a lawyer’s craft.

In representing his client the lawyer, Charles Foster, threads the needle between the conflicting interests of two countries in such a way as to deal with the geopolitical concerns and yet allow his client to be the big winner. What makes this story even more refreshing, in a culture that celebrates power and individualistic accomplishment, is the lawyer quietly continues about his work for more than a quarter of a century, without any self-aggrandizement or public fan-fare, before he engages in any public celebration of this legal victory.

The practice of law is an art. Attempts to describe professionalism in the practice of law are difficult because we are trying to describe an art form. It’s often easier to identify good art than to describe it. Sometimes it’s easier to identify professionalism when we see it than it is to describe it in words. Sometimes other lawyers are the best teachers of professionalism. There are still some giants in the land. Look around.

Professionals offer insight and perspective. They are the artists that help us see; they are the lens through which we should view the practice of law.

John F. Rhem Rhem P.C.

PLACEMENT POLICY The Houston Bar Association Lawyer Placement Service will assist members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions.

1. In order to place an ad, attorneys and law firms must complete a registration record.

Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.

2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner.

3. In order to promote the efficiency of the Houston Lawyer Placement Service. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin Street, Houston, Texas 77002 or e-mail Brooke Eshleman at BrookeE@hba.org.

Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.

PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. Issue If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office, 713-759-1133.

Positions Available

5076 Boutique Civil Litigation law firm specializing in complex business litigation is looking for an associate attorney with 1-3 years litigation experience and excellent research and writing skills.

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4 yrs. experience with pensions, employment, administrative, institutional investing or local government law.

Competitive benefit package.

Background checks required. thehoustonlawyer.com

5084 Full time associate position available. 5+ years experience required. Must have commercial and personal injury background. Competitive compensation package.

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Positions Wanted

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Looking for in-house position.

2064 Attorney with extensive experience in collections and enforcement of judgments will take cases on a fee-for-service or—if meritorious—on a contingency basis.

If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office,

713-759-1133 November/December 2010

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placement service

Letter to the Editor

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Houston Bar Association, 1001 Fannin, Suite 1300, Houston, Harris County, Texas 77002-6715 There is no staff editor for this publication Tara Shockley, Houston Bar Association, 1001 Fannin, Suite 1300, Houston, Harris County, Texas 77002-6715

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