2012 Year in Review: Texas Access to Justice

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BAR january 2013 • Vol. 76, No. 1 • TexasBar.com(fBJ

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Year In Review

2012 Year in Review 13. Seeid., citing 7-Eieven, Inc. t~. Combs, 311 S.WJd 676 (Tex. App.- Austin 2010, pet. denied) (original opinion dated Aug. 31, 2009 withdrawn}.

Cause No. 03-10--00323--CV.

17. See Tex. Tax Code§ 151.311. (The case is pending resetting at the district court.)

18. _ S.W.3d _ , Cause No. 03-10-00764-CV (Tex. App- Austin 201 L).

19. _S.W.3d _ , Cause No. 03-10-00648-CV (Tex. App.- Austin 2012).

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CHRISTINA A. MONDRIK

is the founder of Mondrik & Associates in Austin. She represents taxpayers in resolving state and federal tax controversies and litigation. Mondrik is an active member of the State Bar Tax Section. serving on its council and having served as chair and vice chair of its CLE. Tax Controversy. and Solo and Small Firms. She is also active with the Texas Society of CPAs.

Texas Access to Justice

By Harry M. Reasoner

Texas experienced an increased number of people living in poverty with critical legal needs and declining funding from Interest on Lawyers Trust Accounts and the federal government in 2012. Legal aid providers are being forced to lay off lawyers. The Texas Access to Justice Commission launched several initiatives and redoubled current efforts to enhance access to the justice system.

In March, the commission kicked off the Texas Access to Justice Campaign. Attorneys from across the state were encouraged to make a $150 AT] contribution on their State Bar of Texas dues statement. This year's campaign raised awareness by sending a personalized email and video to all Texas attorneys. AT] contributions increased nearly 10 percent, raising almost $ 1 million for legal aid this year.

Additionally, the commission created a competition among law firms to encourage greater attorney participation. Attorney contributions within firms increased more than 40 percent. The commission congratulated 17 law firms from Austin, Dallas, H ouston, and San Antonio as leaders in their respective cit ies in the September issue of the Texas Bar Journal. These inaugural Champions of Justice Law Firms were presented awards at the annual Supreme Court 55

Texas Bar Journal • January 2013

of Texas luncheon on Oct. 22 for raising the most dollars or having the highest percentage of participation of employees who donated to the campaign.

This year's Champions of]ustice Gala Benefitting Veterans raised more than $414,000, a 10 percent increase from the previous year, and brought in 17 first-time sponsors. Adm. William H. McRaven, commander in charge of the mission that led to Osama bin Laden's death, was the keynote speaker. The commission presented several awards. Terry Tottenham, State Bar past president, received the James B. Sales Boots on the Ground Award for his role in initiating Texas Lawyers for Texas Veterans. Charles Kimbrough, parmer at Bickerstaff Heath Delgado Acosta, was honored for providing pro bono legal assistance to 13 families who were sold property but never received title.

Bruce Bower, deputy director of Texas Legal Services Center, was honored for his many contributions to legal aid, including helping to create the Legal Hotline for Older Texans. Texas Attorney General Greg Abbott received the Star of Justice Award, and Lt. Gov. David Dewhurst received the Legislative Hero Award for their support in securing statewide funds for access to justice. Because of the State Bar's generous underwriting of the event, all proceeds from the Gala were distributed by the Texas Access to Justice Foundation to 11 nonprofit organizations that will help fund legal aid services for Texas veterans.

In addition to its fundraising efforts, the commission continues to focus on trying to get direct representation for those with the greatest need. It strives to help those who cannot obtain attorneys to navigate the court system in a fair and efficient manner. The commission responded to local community requests for assistance by educating those who interface with pro se litigants on how to serve them more effectively. To provide a deeper understanding of the fine line between being helpful and improperly giving legal advice, almost every district and county clerk around the state participated in training conducted by the commission and Office of Court Administration titled, "How to Give Legal Information Without Giving Legal Advice." Judges, law librarians, legal aid staff, and court administrators were provided information on how to effectively assist pro se litigants without overstepping ethical duties. Other training was given to private attorneys and judges on limited scope representation, a model of service where the attorney and client agree at the beginning on what portions of the case the attorney will provide representation.

The Protective O rder Kit was revised and approved by the Texas Supreme Court for use by self-represented litigants seeking to obtain a protective order against domestic violence. The revised kit incorporates significant changes to the Texas Family Code during the 82nd legislative seswww.texasbar.com

2012 Year in Review sian and is available in English on TexasLawHelp.org.

The kit will soon be translated into Spanish and Vietnamese.

Because of the large and increasing number of people who cannot obtain legal assistance in divorce proceedings, the commission urged approval by the Supreme Court of official forms for self-representation in such proceedings. In November, the court approved the forms, which were drafted by a Supreme Court-appointed task force. While we must continue to seek ways to increase pro bono by lawyers, no solution has been found for dealing with all of the tens of thousands who cannot obtain legal assistance. Official forms have been used successfully throughout the country. They have been found to relieve the burden on the courts, to facilitate access to justice, and not to damage economically the family law attorneys in the states using them.

The commission's technology committee is helping legal aid providers become more efficient and is using technology to reduce the barriers between rural and urban communities. With generous donations provided by law firms, Traveling Coaches and UniversitySite, TAJF-funded legal service organizations, now have access to a vast collection of software training sessions created by IT professionals.

Additionally, an exciting new pilot project is underway to connect rural clients to urban pro bono attorneys through the use of videoconferencing technology.

Through the Access to Justice Internship Program, law students served throughout the state and helped legal aid officials assist more clients during the summer months.

Brittany Wray, a third-year Baylor Law School student, was awarded the Law Student Pro Bono Award for her significant impact in legal services and in the community. South Texas College of Law was recognized for its exemplary efforts in educating law students about access to justice. In 2013, the Commission will commence a new law student initiative, Pro Bono Spring Break, where students from all nine Texas law schools will travel to underserved areas throughout the state to engage in pro bono work during spring break.

The commission, the Texas Access to Justice Foundation, and the State Bar's Legal Services Support Division celebrated National Pro Bono Week in October to spotlight pro bono volunteers from across the state. Additionally, Bill Whitehurst and Ned Dennis, two founding members of the Pro Bono College who achieved 20 years of membership, were honored at the Supreme Court luncheon that kicked off the national celebration.

We hope all of you will consider participating in increasing access to justice for all Texans in 2013.

HARRY M. REASONER

is chair of the Texas Access to Justice Commission. He is a partner in V1nson & Elkins. L.L.P in Houston. www.texasbar.com/tbj

Texas Supreme Court

By Scott P Stolley and Meghan Nylin

The Texas Supreme Court had an eventful2012, with some important rule changes, many notable opinions, and two justices leaving the court.

Regarding personnel changes, Justice Dale Wainwright, the third longest-serving justice on the court, resigned effective Sept. 30, 2012. To replace Wainwright, Gov. Rick Perry appointed Jeffrey S. Boyd, who took the oath of office on Dec. 3 and is subject to Senate confirmation.

Also, Justice David Medina lost in the Republican primary to John Devine, a former district judge from Houston, who will take office Jan. 1, 2013.

Regarding rule changes, the court has jettisoned page limits for appellate briefs and instituted word-count limits instead. Effective Dec. 1, 2012, opening briefs that are computer-generated are Limited to 15,000 words, while reply briefs are limited to 7,500 words. Other word-count Limits will apply to other types of briefs. This change gives counsel more flexibility to improve readability through good typography.

The court has also proposed new rules for ( 1) expedited handling of cases less than $100,000; (2) dismissal of cases with no basis in law or fact; and (3) standardized forms for certain uncontested divorces.

Turning to case developments, the court in Thota v.

Young, 366 S.W.3d 678 (Tex. 2012), clarified what it takes to preserve Casteel error in a jury charge. In this medicalmalpractice case, the trial court submitted a single liability question asking whether either the doctor or the patient was negligent. Id. at 682. The plaintiff objected that the charge improperly submitted contributory negligence and improperly included inferential-rebuttal instructions. Id. The Supreme Court ruled that the plaintiff could preserve the alleged Casteel error without referring to Casteel. Id. at 691. But the court ultimately concluded that Casteel did not apply since this was a single-theoryof-liability case, and the inferential-rebuttal instructions did not create Casteel error. Id . at 693.

In Centocor Inc. v. Hamilton, 372 S.W.3d 140, 157-58 (Tex. 2012), the court held that the learned-intermediary doctrine applies in pharmaceutical products-liability cases.

Under that doctrine, a manufacturer satisfies its duty to warn consumers by providing an adequate warning to an intermediary, who then assumes the duty to convey this warning to consumers. The court left open whether the doctrine would apply when the manufacturer directly markets misleading information to consumers. Id. at 162.

The court upheld the state franchise tax in In re Nestle USA, Inc., - S.W.3d - , No. 12-0518, 2012 WL 5073315 (Tex. Oct. 19, 2012). Nestle contended that the franchise tax bears no reasonable relationship to its purVol. 76, No. 1 • Texas Bar Journal 56