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austinbar.org FEBRUARY 2020 | VOLUME 29, NUMBER 1

Austin Bar Members to Be Honored with ABA Spirit of Excellence Awards

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he American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession will present the Spirit of Excellence Awards during the ABA Midyear Meeting in Austin on Feb. 12-17, 2020. Among the honorees are two Austin Bar members, the Honorable Lora Livingston and Richard Peña. Other honorees are Patty Ferguson-Bohnee, Donise E. Brown,

Among the honorees are Austin Bar members the Hon. Lora Livingston and Richard Peña, along with Patty Ferguson-Bohnee, Donise E. Brown, and Donald K. Tamaki. and Donald K. Tamaki. The awards will be presented at a luncheon held to celebrate the efforts and accomplishments of lawyers who work to promote a more racially and ethnically

diverse legal profession. The luncheon will be held at the JW Marriott Austin, on Saturday, Feb. 15 from 12 – 2 p.m. If you would like to attend, please register for the ABA Midyear

THE AUSTIN BAR ASSOCIATION

WELCOMES ABA, NABE, NCBP, AND NCBF TO THE

2020 MIDYEAR MEETING FEBRUARY 12 - 17

FEB 15 ABA SPIRIT OF EXCELLENCE AWARDS JW MARRIOTT AUSTIN 12 – 2 p.m. TICKETS: ambar.org/midyear

meeting free of charge at ambar. org/midyear, AUSTIN and thenLAWYER select tickAL AL ets to the Spirit luncheon.


CONTENTS

AUSTINLAWYER FEBRUARY 2020 | VOLUME 29, NUMBER 1 AL A L INSIDE FEATURED ARTICLES

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Austin Bar Members to Be Honored with ABA Spirit of Excellence Awards

7

Call for Austin Bar Board Nominations

12

1

8

Consider a Leadership Position in 2020

New Laws in Texas for Hemp

11 Simply Complex Living Together and Texas Law 14 2020 Austin Bar Judicial Preference Poll 16 The Honorable Lee Yeakel IP Inn of Court Holds CLE Focus on Legal Issues in Social Media and Voir Dire

CONNECTIONS

DEPARTMENTS 10 17 19

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21 22 24 28

ONLINE austinbar.org

President’s Column Briefs Be Well Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Federal Criminal Court News AYLA Practice Pointers

EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar

ONLINE

WATCH vimeo.com/austinbar

austinbar.org

NEWS & ANNOUNCEMENTS

EVENTS & MORE

CANLAW Clinic

FEB. 28 4th Friday Members Only

Volunteers Needed for Feb. 29 Clinic at Travis County Law Library

Interested in Writing for Austin Lawyer? Now Seeking Contributing Authors for 2020

Free CLE

Topic: Representing Asylum Seekers Pro Bono Under the Remain in Mexico Program

12-1 p.m.

Austin Bar, 816 Congress, Ste. 700

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION D. Todd Smith ����������������������� President Kennon Wooten ������������������ President-Elect David Courreges ������������������ Secretary Amanda Arriaga ������������������� Treasurer Adam Schramek ������������������� Immediate Past-President

AUSTIN YOUNG LAWYERS ASSOCIATION Sandy Bayne ������������������������� President David King ���������������������������� President-Elect Rachael Jones ����������������������� Treasurer Blair Leake ����������������������������� Secretary Jorge Padilla �������������������������� Immediate Past-President

Austin Lawyer

©2020 Austin Bar Association; Austin Young Lawyers Association

EXECUTIVE OFFICES 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward....................... Executive Director Nancy Gray............................ Managing Editor Debbie Kelly.......................... Director of AYLA Jennifer Hopgood................. Editor-in-Chief Rachael Jones........................ Copy Editor

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP

Why Lead?

lsewhere in this issue, readers will see a call for Austin Bar Association members to consider applying to serve as an officer of the association or on its board of directors. Directorships are important leadership positions in our organization. And the officer vacancy is particularly noteworthy because the successful candidate will be on track to serve as president in a few short years. Some of you may be asking, “Why lead?” Here are a few reasons that come to mind.

or toward a common goal. Our board consists of lawyers from a cross-section of practice areas and firm sizes, sitting judges, and candidates for judicial office. Bar leadership will inevitably establish connections that would not exist otherwise. But the connection possibilities don’t end locally. Our alumni have gone on to serve as State Bar directors and presidents and have held leadership positions with national bar organizations. Past president Judge Eric Shepperd recently completed a term on the National Conference of Bar Presidents’ executive council, and past president Laura Sharp was elected to the American Bar Association board of governors. Each of these opportunities placed a former Austin Bar leader in a position to lead on a bigger geographic scale. These folks built on their Austin Bar experience to get there.

TO CONNECT Joining the Austin Bar provides members abundant opportunities to meet other lawyers in our community. That’s enough for some. But if you’re looking for deeper connections, there’s no better way to establish them than working side-by-side on a shared project

TO REPRESENT The flip side of establishing connections within the Austin Bar is setting out to represent members or potential members of the Austin Bar. Our substantive law sections get a seat at the boardroom table, helping to ensure that section members have

E 

If you’re looking for deeper connections, there’s no better way to establish them than working side-by-side on a shared project or toward a common goal.

Members of the Austin Bar Board of Directors at a recent monthly board meeting.

great opportunities to showcase our city and our organization to bar leaders from around the country. As part of these gatherings, the NCBP executive council will hold a dinner and reception at Hilgers House, and the ABA will honor Judge Lora Livingston and past Austin Bar and State Bar president Richard Peña, among others, at its Spirit of Excellence TO ELEVATE Awards luncheon. As current president, I will be Austin Bar leaders also have attending these events. In true opportunities to elevate our status Texas fashion, I look forward to nationally. This goes hand in bragging about the Austin Bar, hand with connection on a bigger our leadership and members, geographic scale. For example, Hilgers House, our excellent the ABA and NCBP are holding staff, and the wonderful city we their mid-year meetings here in AUSTIN LAWYER AL AL call home. Austin later this month, providing

a voice in Austin Bar decisions. Placing a section member in a two-year director position or as an officer also helps ensure continuity in representation. And as the law evolves, those in cutting-edge practice areas or with specific interests can educate other leaders, planting seeds for future development and growth.

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AUSTINLAWYER | FEBRUARY 2020


Call for Austin Bar Board Nominations Consider a Leadership Position in 2020

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ustin Bar Association members are leaders in their firms, their communities, and their world. They work to make a difference and care deeply about the law, while juggling family commitments and responsibilities to multiple civic groups, non-profits, and faith organizations. This is especially true of those who serve in leadership positions. The dedicated, passionate, and talented lawyers who serve on the Austin Bar Board of Directors or as officers, along with those who chair its committees and lead its sections, are in the unique position of significantly impacting the Austin legal profession and the community at large. If you’ve been active in the Austin Bar and would like to join this dynamic leadership team, now is the time. If you are interested in running for a position

FEB 26 BOARD OF DIRECTORS NOMINATIONS DUE Email Austin Bar Executive Director DeLaine Ward at delaine@austinbar.org

as an officer or on the Board of Directors for the Austin Bar, please email a resume, along with the desired position, to Austin Bar Executive Director DeLaine Ward at delaine@austinbar.org by Wednesday, Feb. 26. Officer positions are one-year terms; director positions are for two years. Nominees for the office of president-elect shall have served at least two years on the Board of Directors prior to assuming office. Nominations will be reviewed by the Austin Bar’s Nominating Committee. The number

Making connections at the 2019 Austin Bar/AYLA End-of-Year Board Reception.

of candidates to be nominated for each position shall be left to the discretion of a majority of the Nominating Committee. The Nominating Committee’s decision will be announced on or before Monday, March 16. Any qualified member not receiving the nomination of the committee may be included on the ballot by submitting a written petition signed by 75 members

of the Austin Bar. Such written petitions must be submitted by Thursday, April 9. Voting shall be conducted via electronic ballot and at the annual meeting of the Austin Bar membership at the Bench Bar Conference on Friday, May 1. If you have questions about the nomination or election process, contact DeLaine Ward at AUSTIN LAWYER delaine@austinbar.org. AL AL

FEBRUARY 2020 | AUSTINLAWYER

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New Laws in Texas for Hemp BY LISA L. PITTMAN, THOMAS PITTMAN

Lisa Pittman is a partner at Thomas Pittman. She has focused her practice in the past five years on cannabis and hemp issues, spending two years in Colorado to learn the industry. She has been appointed by the TDA to its Texas Industrial Hemp Advisory Council.

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hile Texas is not yet known as a state friendly to cannabis, the state is not lagging behind on the hemp bandwagon. Hemp is rising even faster from the shadows of prohibition than cannabis. Products containing hemp extracts high in cannabidiol (CBD), such as oils, topicals, and infused products, gained such mainstream popularity and acceptance that in 2019 hemp became legal at the federal level and removed from the definition of “marihuana” under the Controlled Substances Act (CSA).1 Under the 2018 Farm Bill,

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AUSTINLAWYER | FEBRUARY 2020

effective Jan. 1, 2019, if Texas did not pass a hemp law during the 2019 session, the state would have been subject to the United States Department of Agriculture’s (USDA) default rules for growing hemp as an agricultural commodity. On June 10, 2019, Gov. Greg Abbott signed HB 1325, legalizing hemp in Texas and directing the Texas Department of Agriculture (TDA) to devise rules from planting to harvest and the Department of State Health Services (DSHS) to devise rules from harvest to end consumable hemp product. The rules address licensing qualifications, testing and inspection requirements, and plans for disposal of “hot” crops (cannabis plants with >.3%

—though regulation is coming from multiple federal agencies, including the USDA and the Food and Drug Administration (FDA). The FDA retains regulatory authority over CBD, another compound of the cannabis plant, now considered a drug rather than a dietary supplement because of FDA’s approval of a marijuana-derived CBD formulation to treat epilepsy. The USDA released its proposed rules for farming under the 2018 Farm Bill on October 31, 2019, with a notice and comment period ending January

After the 2018 Farm Bill, most states are activating hemp programs—and some have not waited on the USDA. tetrahydrocannabinol (THC)), among other issues. TDA and DSHS are currently promulgating these rules. Hemp is a type of cannabis plant. In contrast to marijuana, which is tightly regulated from a law-enforcement perspective because of its status on Schedule 1 of the CSA, hemp contains low THC (< 0.3% THC) and currently is subject to much less regulation

29, 2020. The USDA must approve each state’s plan, so even states that have already been producing hemp will have to adjust their programs to receive USDA approval. It is unknown when the FDA will promulgate proposed hemp CBD regulations, but Sen. Mitch McConnell, who passed the Hemp Farming Act inside of the 2018 Farm Bill (due to Kentucky’s profitable participa-

tion in the hemp trade), recently requested a status report and a timeline for draft rules. The FDA has already held public hearings and taken public comment on the regulation of hemp CBD. Under the 2014 Agricultural Improvement Act (the 2014 Farm Bill), hemp was only permitted to be grown in two limited situations: in conjunction with a state’s industrial hemp program, or under a contract with a university’s research pilot program. In neither of these instances were hemp or extracts made from hemp allowed to leave those states’ lines. But they did, even on Amazon, and the word got out about CBD’s ability to relieve inflammation, pain, anxiety, sleeplessness, and other common ailments, without the side effects of synthetic drugs and opiates.


The main states to take advantage of the 2014 Farm Bill were Kentucky, Colorado, Oregon, and Montana. After the 2018 Farm Bill, most states are activating hemp programs—and some have not waited on the USDA. Our founding fathers grew hemp, and growing hemp was a requirement of some early colonists. Before 1937, industrial hemp was legal and used for clothing, paper, rope, and fuel. But in 1937, Congress passed the Marihuana Tax Act, which made all species of the Cannabis sativa L. plant illegal, including hemp. While the purported purpose was to eliminate the use of cannabis as a drug, some theorists posit that the real intent of the Act was to eliminate the competition hemp posed to paper, steel, and textile manufacturers by referring to cannabis as “marihuana” as a scare tactic in relation to its use as a drug. But, the U.S. needed hemp during World War II for the strength of the product, and it was briefly re-legalized. Since then, the U.S. has been importing hemp to use as fiber for the seats of BMW and Mercedes vehicles manufactured here. Hemp powders and other goods have been imported for years, found mostly in health stores such as Whole Foods. But now hemp CBD has become mainstream, sold in Kroger, other national retail chains, and even gas stations. (Pro tip: Do not try CBD from a gas station.) There is a lot of confusion about hemp and the nuanced

new law. For example, state law enforcement often intervenes and is frequently unclear about the legality of the substance they may discover in a vehicle or a store shelf. The DPS raided People’s Pharmacy for it in 2017, and similar such raids continue, though usually at smoke or smoke accessory shops. The latest issue surrounds hemp leaves that can be smoked, and there have been many seizures from smoke shops on the allegation that the leaves are marijuana. They look and smell the same, and you can find it all over Austin—for now. The Texas hemp bill indicates an intent to prohibit the smoking of hemp, and proposed rules issued by DSHS, which will regulate Texas’ hemp program from post-harvest to end consumable hemp product, would outright ban the smoking of hemp. This is another fascinating issue: Courts in the tobacco states have been using stretches of legal reasoning to ban the smoking of hemp, but a federal court in Indiana recently held it was unconstitutional to ban the smoking of hemp because the 2018 Farm Bill outright legalized hemp as an agricultural commodity. It did not create separate “forms” of hemp, and it is not just to treat someone with this federally legal commodity differently in one state while passing through another. But again, this, and other hemp-related litigation, could be the subject of another article. Texas’ legalization of hemp has caused law enforcement some

As a leading agricultural state, Texas is poised to become the new leader in hemp production, whether for medicinal or industrial purposes. grief because the state crime labs are not equipped to measure percentages of THC, only whether THC is present or not—and the same goes for drug dogs. The alleged smell of marijuana is no longer automatic probable cause, and until the crime labs update their equipment, many prosecutors are shelving their low-level marijuana possession cases because they will not be able to prove beyond a reasonable doubt that the substance was marijuana rather than hemp. KVUE ran a story on January 3, 2020, demonstrating the sharp drop-off in the filing of marijuana possession charges since the Governor’s signing of Texas HB 1325. The Governor issued a memorandum to prosecutors in summer 2019, reminding them that marijuana is still illegal and to continue to prosecute. This is also somewhat of a regional issue as all major metropolitan cities in Texas have devised “cite and release” policies for small amounts of marijuana possession. But make no mistake, marijuana remains as illegal as it ever was, and the crime labs will have updated equipment soon. The TDA is charged with promulgating rules for the planting, sampling, testing, harvesting, and disposal of hot hemp. This is

in progress right now, with a comment period ending on February 9, 2020 and the goal of adoption of the rules on February 17, with an effective date of March 8, 2020, to enable farmers to get a 2020 growing season to compete with the other states. A person or entity will have to have a license and pay permit and associated fees to grow hemp in Texas. From an agricultural, industrial, and medicinal standpoint, the hemp movement—largely beleaguered by the crushing compliance and taxing obligations of cannabis businesses—is on an exponential rise in the United States and internationally. A leading trade publication states that in 2020, CBD will become a multi-billion dollar business. As a leading agricultural state, Texas is poised to become the new leader in hemp production, whether for medicinal or industrial purposes. This is an incredibly exciting time to participate in the change of major laws in the dawn of a AUSTIN LAWYER new industry. AL AL Footnote 1 Cannabis is defined as “marihuana” under the U.S. Controlled Substances Act, although its species name is Cannabis sativa L.

FEBRUARY 2020 | AUSTINLAWYER

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Demi Allen Rodolfo Altillo Mark Aschermann Melvin Bailey Laura Bowen Chelsea Cates Megan Chalifoux Christopher Daves Anne Derrig Aashish Desai Haley Devaney Michael Finley Nicholas Gallion Sam Gammage Iris Gonzalez Katelyn Hammes Brooke Hauglid Deron Henry Alec Herzog David Hines Jeremy Jackson Barry Kanarek Daniel Martens Heather McCormick Madison McMullan Samuel Mkrtchian Gilbert Nwaopara Kara O’Shaughnessy Melissa Pulido George Rendziperis Madison Santana Bliss Scharfenberger Ramez Shamieh Stan Springerly Lauren Thomas

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AUSTINLAWYER | FEBRUARY 2020

Camillone, Moore, Murphy, Plummer

NEW TO THE OFFICE

„ Chris Camillone has joined Weisbart Springer Hayes as an associate in the firm’s Austin office. Camillone has experience in a range of commercial litigation and family law matters, including trials and arbitrations involving breach of contract claims, securities-related claims and other financial disputes, and child custody.  

„ Joey Moore became a shareholder in Walsh Gallegos Treviño Russo & Kyle. Moore has spent her legal career representing public entities and public employees. „ Jill G. Murphy joined Ruffner Schoenbaum to lead the firm’s real estate practice as partner, where she collaborates with local investors, businesses, and builders in navigating the dynamic real estate market in Austin and throughout the country.

Murphy advises on leasing, disposition, acquisition, and financing of commercial properties. MOVING ON UP

„ Dykema announced that its executive board elected Travis Plummer, along with eight other new members, to the firm. Plummer counsels clients on general commercial, construction, insurance, and healthcare litigation.

SUBMIT A BRIEF If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing.

Announcements should include all pertinent information including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer Managing Editor Nancy Gray at Nancy@austinbar.org.


Simply Complex Living Together and Texas Law BY BRAD WIEWEL

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e all know people who are living together without being married. As with many things in life, however, things that appear to be simple can be complex. Unmarried couples who do not do the appropriate estate planning can be placing themselves in a highly problematic legal environment because Texas law favors married couples over unmarried ones regardless of their sexual orientation. Medical decisions should be their first concern. Without proper legal documents, the law considers an unmarried couple to be “legal strangers.” If one member of the couple falls ill or gets hurt, the healthy partner will have no legal authority to make medical decisions on behalf of the incapacitated partner, regardless of how long the couple has been together. Instead, Texas law gives blood relatives priority. A medical power of attorney, along with a Texas living will and HIPAA release could avoid potential disaster. Access to money during incapacity can also become a problem. Without a financial power of attorney or revocable living trust, all of one partner’s assets could become frozen, with the other partner denied access to these accounts. If a guardianship of the estate is

required to unfreeze assets, courts tend to give priority to blood kin when filling financial roles. The healthy partner could not only lose control of those assets, but also could possibly be evicted from the home if the incapacitated partner owns the entire property. Unless appropriate planning has happened, more problems arise at death. Without the proper legal documents, the surviving partner is not the one entitled to make decisions regarding the deceased’s burial or cremation. Signing an agent for remains or pre-planning funeral services can give the surviving partner the right to make final arrangements and avoid problems. Additionally, if the deceased partner did not have a will or revocable living trust, estate assets are distributed according to Texas intestacy law. Assets will go to blood kin only, not the surviving partner. Likewise, the surviving partner does not get the protection of a “probate homestead,” and is not eligible for other benefits that Texas law gives to spouses. A “probate homestead” gives a surviving spouse the automatic right to occupy the couple’s home for life, regardless of legal title. An unmarried couple with a will or revocable living trust could avoid this problem if the partner who owns the

Anji Maddox

residence gives the property to the surviving partner. The property owner could alternatively use a “Transfer on Death” deed, which would transfer the home to the surviving partner outside of court. Keep in mind, however, that—as with incapacity—if the property owner partner passes away without legally enforceable documents, the living partner would have no right to remain in the home, and the executor/administrator of the deceased partner’s estate could evict the other partner. Common-law marriage claims typically arise on a breakup or a death. The aim of a successful assertion is to transform the “partners” into “spouses.” If the goal of living together is simplicity, then the partners need to be aware that the complexity, uncertainty, and expense of making or defending a claim of common-law marriage could obliterate that objective. Additionally, a person is not legally entitled to any benefits from his or her partner’s 401(k) or employment-related life insurance policy unless the owner legally designated his or her partner as a named beneficiary. With a married couple, however, the surviving spouse is legally required to be the beneficiary of those funds, or has to consent to the naming of another beneficiary.

IRAs and privately owned life insurance are also distributed according to beneficiary designations, so unless the partner is specifically named as the beneficiary on these too, he or she will not receive those funds either. Substantial estate tax and capital gains tax savings are available for couples at death, but only if the couple was married. There are yet other issues, such as evidentiary privileges, this article does not address. Simply living together can have a lot of appeal, but the reality is that, from a legal perspective, it can be anything but simple when one partner becomes incapacitated or dies. Having clients obtain proper estate planning documents can eliminate many of the problems that would otherwise arise. On closer look, getting married with a strong pre-nuptial agreement may be the most bulletproof approach. TheAUSTIN seemingly simple LAWYER AL AL here is especially complex. Brad Wiewel is the founding member of The Wiewel Law Firm. He is board certified in estate planning and probate law by the Texas Board of Legal Specialization.

Offices in Austin, Round Rock and Dallas FEBRUARY 2020 | AUSTINLAWYER

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BE WELL

Don’t Forget—Judges Are People, Too BY SCOTT FIELD

Scott Field is a partner at Butler Snow. Before joining the firm, Field served for six years as a Justice on the Third Court of Appeals in Austin.

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  hat’s wrong?” The question came from my wife, and my response, “Nothing, I’m good,” is something I’ve repeated— sometimes truthfully, sometimes not—hundreds of times during the course of our marriage. But the second question had a new wrinkle. “The boys are asking me what’s wrong with you; they say you’re quieter than usual and grumpy—so really, what’s wrong?” As the unofficial “fun parent” to our three kids, the question shook me a little and made me stop and reflect after telling her I was “good” one more time and ending the conversation. The truth is I wasn’t “good.” In fact, I was far from it. I just hadn’t fully realized it until that moment. To the outside world, all was “good.” I was fairly new to my role as a Justice on the Third Court of Appeals, and I loved my job. I had never been happier professionally. And yet, the combination of my job and my personal life was having an effect on me that I hadn’t yet realized. I had allowed myself to become isolated, physically and emotionally. In addition, I did not realize at that point the way my docket was affecting me. When my wife asked me those questions, I had just finished reviewing trial court records in three cases: (1) the gang rape of 12

AUSTINLAWYER | FEBRUARY 2020

a 15-year-old girl by a group of her high school classmates; (2) a close call on termination of a mother’s parental relationship with her child; and (3) a criminal case in which a mother had intentionally starved her infant. My job had immersed me into the evils of the world around me, and it was affecting me. And then there was my world outside of the courthouse. By that point, my mom was in the final stages of a decade-long battle with Alzheimer’s. My dad insisted on serving as her caretaker, and the disease was killing him, too, albeit indirectly (they would both pass away within the next two years). He needed help, and I was the only one of their kids who lived somewhat close by. So each weekend I made the two-hour drive to my hometown to take care of my mom and give my dad a break. The end stages of Alzheimer’s are not pretty, and I came home each weekend feeling sadder than before. It was affecting me—greatly. And the cycle continued each week. Between my family’s circumstances and an unusually depressing series of cases at work, I had allowed myself to draw inward into my own protective shell. My wife and kids were correct—I had become quiet and grumpy, and I had no idea how to express what I was feeling. My point of recounting this dark period in my life is that both judges and lawyers can learn from it. Once I realized there was a problem, I made changes that helped me. As a judge, I made several adjustments. Because I handled criminal and civil cases on my docket, I made sure that for every particularly depressing record I reviewed, I would intentionally mix in a civil case or a fairly run-of-the-mill case. In addition, I became proactive about not isolating myself. I

Judges gathered to support the Austin Bar and enjoy an afternoon of fun, chili, and pie at the 2019 Austin Bar/AYLA Leadership Academy’s PieFest.

Judges’ jobs naturally isolate them. And in those jobs, judges make tough, life-changing decisions. It’s a recipe that can negatively affect even the strongest of individuals. began to reach out to friends and schedule lunches like I had in private practice. I would not allow a great job to become a negative. Judges, don’t allow your position to isolate you from your family, friends, and those in the legal community. Schedule lunches. Attend bar events. Take care of yourself. And, to the extent you can, recognize when a particular case is having a negative effect on your emotions and demeanor and step away from it if you can, even if for a short time. Lawyers, you can help judges, too. Although in my view there is hardly ever an excuse for a judge not to have an even temperament from the bench, do understand that judges have lives outside of work and may be going through difficult times. As with all people, a little kindness can go a long way. More importantly, for those who were already friends of the judge before he or she took the bench, be sure to stay in touch, invite him or her out, etc. It’s

difficult for most lawyers to have a normal conversation with a judge, even in a social setting. That’s why a judge’s pre-judgeship friends become even more important once the judge takes office. They and the judge’s family are the judge’s primary connection to normalcy. Trust me—when outside the courtroom, a judge wants to be treated like a regular human being. Judges are people, just like you and me. They have problems, and their jobs naturally isolate them. And in those jobs, judges make tough, life-changing decisions. It’s a recipe that can negatively affect even the strongest of individuals. Judges cannot allow themselves to live in an isolated, dark place while performing their duties. But we, as lawyers, need to recognize their challenges and help them. In doing so, we not only make the justice system better, but we also help a fellow lawyer who just happens to wear AUSTIN LAWYER AL AL a robe while at work.


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FEBRUARY 2020 | AUSTINLAWYER

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2020 Austin Bar Judicial Preference Poll

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embers of the Austin Bar Association and the Austin Criminal Defense Lawyers Association will receive an email with a link to the biennial Judicial Preference Poll on February 3, 2020. The private preference poll allows members of both organizations to rate candidates who will appear on the ballot in the March primary. The poll will include 16 candidates in seven Travis County judicial races, and four candidates in each of the races for District Attorney, County Attorney, and Sheriff. The purpose of the short poll is to give the general public an opportunity to see how local attorneys evaluate their colleagues in the legal community. For each race, Austin Bar and ACDLA members are asked to indicate which candidate they believe is best qualified to serve in the position for which he or she is running. 

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AUSTINLAWYER | FEBRUARY 2020

FEB 14 JUDICIAL POLL CLOSES BALLOT BOX (ONLINE) Current members will receive an email link on Feb. 3, 2020 from noreply@ballotboxonline.com.

The results are strictly the opinions of the individual attorneys participating in the poll and are not intended as an endorsement of any candidate(s) by the Austin Bar Association, ACDLA, or any affiliated organization. The poll will be conducted online through Ballot Box, an online polling system, and will remain open until 5 p.m. on February 14, 2020. The email with the link to the ballot is sent from noreply@ballotboxonline.com. If your 2020 Austin Bar dues were paid by Jan. 27, 2020, and you haven’t received the email, please

check your spam filter. If you still can’t find it, add the email address to your safe senders list

and contact the Austin Bar office at 512.472.0279 have another AUSTINtoLAWYER L AL ballot emailed toAyou.


Former District Judge

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The Honorable Lee Yeakel IP Inn of Court Holds CLE Focus on Legal Issues in Social Media and Voir Dire

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he Honorable Lee Yeakel IP Inn of Court held its second CLE-approved meeting of the year on November 13, 2019 at The Headliners Club in Austin. The program, organized by the second pupilage team under team leader Brian C. Banner, focused on legal issues in social media. By 2020, one study estimates that 1.7 megabytes of data will be created every second for every person on earth. Social media content makes up a big part of that number, and each video, Snap, Tweet, or image posted could implicate intellectual property and other rights. Two guest speakers and two team members presented. The first guest speaker, Jason Bloom of Haynes & Boone (Dallas), discussed the perils of using copyrighted materials on social media and what to do if someone is found infringing your content. Student Inn member Aro Han gave a brief and humorous presentation covering copyright memes for people with an interest in IP. The second guest speaker, Jim Hemphill of Graves Dougherty Hearon & Moody, discussed the First Amendment, copyright, defamation, and social media, which included real world examples from the “cute little girl” case,

Instagram model cases, and more. Inn member Jacob Porter of Dechert (Austin) discussed the collision between the Texas Anti-SLAPP Statute (TCPA) and trade secret misappropriation. Also at The Headliners Club, the third CLE-approved meeting of the Honorable Lee Yeakel IP Inn of Court was held on December 16, 2019. The program, organized by the third pupilage team under team leader David Hoffman, focused on voir dire. With fewer and fewer IP cases going to trial, IP practitioners have relatively few opportunities to learn critical voir TOP: Team 2: Back row (from left): Vikram Iyengar, Jose Villarreal, Kent Chambers, Steve Wingard, Rob dire skills. Group King, and Brian Banner. Front row (from left): Hong Shi, Aro Han, and Darlene Ghavimi. three presented BOTTOM: Team 3: John Williams, Samoneh Kadivar, David Armendariz, Marla Hayes, David Palmer, two guest speakers David Hoffman, Chris Ryan, and Travis Wimberly. with expertise in voir dire. The first, the various types of expected graphics and presentation with Britta Stanton, is an experienced jurors, and choosing jurors to over 100 trials under his belt. former trial attorney who now strike. They also conducted a Their presentation focused on works as a jury consultant and module on the ethics of using techniques for conducting voir advisor. The second, Jason AUSTIN LAWYER social media during voir Adire. dire, identifying archetypes for Barnes, is a specialist in trial L AL

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OPENING STATEMENT

Using Styles in Microsoft Word The Learning Curve Is Worth It BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

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tyles in Microsoft Word are pre-set formats you can apply to parts of your document. There are existing Styles for body text (Normal) headings (Heading 1, Heading 2, etc.), and you can create other types for block quotations, bullet lists, and more. Styles allow you to set font, line spacing, paragraph spacing, automatic tabbing, and other features and then apply those pre-set formats to any document. On a PC, you can find Styles in a large section at the Home tab. (It’ll be different on a Mac.) If you spend a lot of time creating Word documents, I encourage you to learn more about Styles. Yes, there’s a learning curve, but you’ll save time and reduce frustration if you master Styles. One good source to consult is this book: Ben M. Schorr, The Lawyer’s Guide to Microsoft Word (2015) GETTING STARTED You’ll need to change Word’s default Styles. For example, the default Normal Style (for body text) uses Calibri, a sans serif font that’s probably not right for most legal documents. Some of the default Heading Styles use colored fonts—also not right for legal writing. So right click on the Style you want to change, choose “Modify,” and set it up the way you want: choose a font, click Format then Paragraph and set the line spacing (double, single), and then set the paragraph spacing (probably zero). Tell it to automatically indent one tab for each new paragraph. Or don’t; you can still do it manually. For the Heading Styles, do the same but apply boldface or italics. To keep these new Styles, click the button for “New documents based on this template.”

Once you’ve made your Style choices, create your document by typing and, as you go or during revision, apply your Styles. To apply a Style to any piece of text, select the text, or place your cursor in the text, and choose the appropriate Style. THREE REASONS TO USE STYLES First, you’ll get consistent formatting. All your headings at the same level will look the same, all your lists will look the same, all your block quotations will look the same, and so on. Naturally, you’re aiming for consistency already, but Styles make consistency easier. For a block quotation, instead of indenting left and right and converting to single spacing, just type (or paste in) the text and click the Style for Block Quotation. Done. Universal changes are easy, too. To change all your first-level headings from bold italics to bold, you don’t find and re-format each one. Instead, modify the

I now save time when I create and modify documents, and producing a table of contents in 10 seconds is wonderful. Heading 1 Style from bold italics to bold, and the format changes automatically. Second, with Styles for headings, you can use the Navigation Pane. To see it, go to the View tab. In the Show section, check the box for Navigation Pane. It appears on the left and displays an outline, pulling the entries from your Styles Headings. The entries in the outline are click-able, allowing you to move around easily in a large document—like a 40-page brief or a 60-page contract. Third, using Styles enables you to create a Table of Contents in seconds. Go to the References tab, click on Table of Contents, and choose Custom Table of Contents (near the bottom). Word will generate a table of contents from the Styles headings in your docu-

ment—correct page numbers and all. You can adjust the settings: How many heading levels do you want displayed? Do you want the entries to be hyperlinked? And so on. If you make any changes later, right click on the table of contents and Update Field to update the headings and the page numbers. I’ll admit it took me a while to master the Styles function and to see the benefits, but ultimately it was worth it. I now save time when I create and modify documents, and producing a table of contents in 10 seconds is wonderful. So it might take a while to master the Styles function, but the effort willLAWYER pay off in time and AUSTIN AL AL headaches saved.

FEBRUARY 2020 | AUSTINLAWYER

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Representing Attorneys

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THIRD COURT OF APPEALS CIVIL UPDATE

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The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of January 6, 2020. ARBITRATION: Court upholds denial of motion to compel arbitration against non-signatory. Lincoln Fin. Advisors Corp. v. Ards, No. 03-18-00437-CV (Tex. App.—Austin Dec. 19, 2019, no pet. h.) (mem. op.). Carl established an account with Lincoln purportedly as trustee of a trust for his daughter, Gabrielle. Carl, however, signed the account individually and crossed out Gabrielle’s name as an account holder. Carl depleted the account. Bridgette Ards sued Carl and Lincoln as next friend for Gabrielle. Lincoln sought to enforce the account agreement’s arbitration clause against Bridgette, a non-signatory. The trial court denied the motion to compel. According to the court of appeals, none of the theories for enforcing arbitration clauses against non-signatories applied. There was no third-party beneficiary because nothing in the account agreement showed an intent to benefit Gabrielle. Estoppel did not apply because Bridgette’s breach-of-fiduciary-duty claims did not rely on the account

agreement. Finally, there was no evidence that Carl acted as Gabrielle’s agent. The court affirmed. TCPA: Court holds that TCPA applies to abandoned claims. Amini v. Spicewood Springs Animal Hosp. LLC, No. 03-1800272-CV (Tex. App.—Austin Nov. 7, 2019, no pet. h.) (mem. op.). Amini complained to hospital staff, the city, and others of noise from barking dogs at the hospital and garbage trucks servicing the hospital. Eventually, the hospital sued Amini for tortious interference with a contract, business disparagement, and nuisance. Amini’s motion to dismiss under the TCPA was denied by operation of law. The court of appeals held that the TCPA applied to the hospital’s abandoned claims. Thus, Amini could seek fees for such claims. The court further rejected the hospital’s argument that the TCPA did not apply to Amini’s tortious conduct. Amini’s communications were matters of public concern and within his right to petition. Finally, the court concluded that the hospital failed to meet its evidentiary burdens on its abandoned and live claims. The court reversed and remanded. TRIAL PROCEDURE: Misrepresentations made in meetings in Austin supported venue. Pellegrini v. Six Pines Exploration, LLC, NO. 03-18-00774-CV (Tex. App.—Austin Nov. 22, 2019, no pet. h.) (mem. op.). Six Pines

hired an auditor to investigate its failing financial position. The audit revealed that Pellegrini had misappropriated funds from Six Pines. Pellegrini attended a meeting in Austin to discuss restructuring and to repay Six Pines for money he had taken. When Pellegrini did not repay, Six Pines sued Pellegrini in Travis County. The trial court denied Pellegrini’s motion to transfer venue. According to the court of appeals, Six Pines’s fraud claims were based largely on the meeting in Austin when Pellegrini represented that he would repay the money. Pellegrini also made other misrepresentations to investors in Austin, which were also a basis of Six Pines’s claims. Accordingly, the court concluded that a substantial part of the events giving rise to the claims occurred in Travis County and affirmed. FAMILY LAW: Court reverses denial of request for jury trial on property division. Brubaker v. Brubaker, No. 03-1800273-CV (Tex. App.—Austin Nov. 21, 2019, no pet. h.) (mem. op.). Wife filed for divorce, requested a jury trial, and paid the jury fee. Shortly before the final trial, wife withdrew the jury request. Husband objected, citing Rule 220, and sought a jury trial on property division. The trial court denied husband’s jury request and held a bench trial on all issues. The court of appeals concluded that Rule 220 preserved husband’s

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

right to a jury. Under that rule, once a case is on a jury docket, it cannot be removed over objection of an adverse party. Husband could rely on wife’s request for a jury. The court reversed and remanded for a new trial on property division. The concurring and dissenting opinion concluded that because the case was never placed AUSTIN on a jury LAWYER docket, Rule 220 was never triggered. AL AL

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THIRD COURT OF APPEALS CRIMINAL UPDATE

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

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The following are summaries of selected criminal opinions issued by the Third Court of Appeals during August 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of January 1, 2020. SPECIFICITY OF INDICTMENT: Trial court did not err in quashing theft indictment. State v. Mireles, No. 03-18-00453CR (Tex. App.—Austin Aug. 1, 2019, no pet.) (mem. op., not designated for publication). Mireles, a former faculty member at Texas State University, managed and oversaw the allocation of funds at the university’s Center for Mathematics Readiness. The State charged Mireles with the offense of theft by unlawfully appropriating funds from the Center, in the amount of $1,500 or more but less than $20,000. Mireles filed a motion to quash the indictment, arguing in part that the indictment failed to specify which expenditures constituted misappropriation. The district court granted the motion. The 20

AUSTINLAWYER | FEBRUARY 2020

State appealed, arguing that an indictment charging aggregated theft does not have to allege specific instances of misappropriation. The State relied on Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003), in which the Court of Criminal Appeals held that an indictment for aggregated theft must allege only the aggregation and that notice of the specific acts of theft could be provided through other means. In Kellar, the defendant was given access to binders containing documentation of more than one hundred transactions showing instances of theft, and the State filed copies of business records and affidavits showing the thefts in question. In this case, in contrast, the State provided Mireles with copies of emails, letters, CDs with multiple pdf attachments, and a DVD with an auditor’s thumb drive, but did not distinguish between authorized and unauthorized transactions. The appellate court concluded that this case was more like State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004), in which the Court of Criminal Appeals held that in cases where large numbers of transactions both legal and illegal are questioned, the State must provide sufficient specificity in the indictment to ensure the defendant is given proper notice. The record failed to establish that such notice was provided to Mireles, and thus the trial court did not err in quashing the indictment. HABEAS CORPUS/IMMIGRATION CONSEQUENCES: Claims in application for writ of habeas corpus barred by laches. Ex parte Govea, No. 03-1900058-CR (Tex. App.—Austin Aug. 21, 2019, no pet.) (mem. op., not designated for publication). Govea was charged in 2013 with unlawful possession of less than two ounces of marijuana, a misdemeanor. He pleaded nolo contendere and was placed on community supervision for four months. Years later, Govea filed an application for writ of habeas

corpus, arguing that the 2013 judgment should be vacated because he did not knowingly, intelligently, and voluntarily enter his plea or agree to waive his rights, including his right to an attorney. Govea argued that his plea was involuntary because neither the trial court nor the State informed him of the immigration consequences of his plea. The State argued in response that (1) the trial court was not required to admonish Govea of the immigration consequences of his plea because he had been charged with a misdemeanor, and (2) Govea’s claims were barred by laches. The trial court denied relief. The appellate court affirmed but disagreed on the reason for affirmance. The majority concluded that Govea’s claims were barred by laches. He had waited five years to bring his claims, which courts have held is a presumptively unreasonable delay that prejudices the State’s ability to retry the case. More-

over, the trial court as factfinder was entitled to disbelieve Govea’s justification for the delay—that he was unaware of the possibility of deportation. The trial court had found that Govea had been charged in 2010 with unlawful possession, and at that time he was advised of the immigration consequences of his plea. The appellate court concluded that the trial court was entitled to rely on evidence from the 2010 case to support its finding that Govea was aware of the immigration consequences of his 2013 plea. The concurring justice disagreed with “the habeas court’s use of admonitions from a prior unrelated plea proceeding in 2010 to support fact findings relating to the 2013 plea proceeding” and did not agree with the majority’s application of the laches doctrine in this case. However, the concurring justice believed that the record supported the trial court’s conclusion regarding the merits AUSTIN LAWYER of Govea’s claims. AL AL

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

2016-PRESENT


FEDERAL CIVIL COURT UPDATE

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The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of January 1, 2020. BANKRUPTCY: A creditor is not “impaired” by a reorganization plan simply because it incorporates the Bankruptcy Code’s disallowance provisions; the plan itself, not the Code or state law, must do the impairing. In re Ultra Petroleum Corp., 943 F.3d 758 (5th Cir. 2019). In 2016, related oil and gas exploration and production companies (“Debtors”) voluntarily petitioned for Chapter 11 reorganization. During bankruptcy proceedings, the price of oil increased, and Debtors became solvent once again. Now solvent, the Debtors proposed a reorganization plan that (they said) would compensate certain creditors in full under the Bankruptcy Code (referred to in the opinion as “Class 4 Creditors”). “The debtors would pay three sums to the Class 4 Creditors: the outstanding principal on those obligations to the Class 4 Creditors, pre-petition interest at a rate of 0.1%, and post-petition interest at the federal judgment rate.” Because Debtors claimed that their plan paid the Class 4 Creditors in full, Debtors elected to treat the Class 4 Creditors as “unimpaired,” which prevented the Class 4 Creditors from objecting to the plan (citing 11 U.S.C. § 1126(f)). The Class 4 Creditors nevertheless attempted to object to the plan, claiming that the plan impaired them because their contracts with the Debtors included make-whole provisions and post-petition interest provisions that entitled the Class 4 Creditors to hundreds of millions of dollars more than the plan provided.

The Court held that the additional amounts of money the Class 4 Creditors sought were unmatured interest or unenforceable liquidated damages. The Bankruptcy Code prevents claims for unmatured interest, and New York law precludes recovery of unenforceable liquidated damages. For this reason, the Court held that the plan did not impair the Class 4 Creditors’ rights. Rather, federal and/or state law provisions incorporated by the plan impaired the Class 4 Creditors’ rights. Because federal and state law provisions, not the plan itself, impaired the Class 4 Creditor’s rights, the Court held that the Class 4 Creditors were unimpaired by the plan and could not object to the plan. PERSONAL JURISDICTION: The grant of licenses to third parties that choose to conduct business in a forum state is insufficient to establish personal jurisdiction over the licensor in the forum state, and establishing personal jurisdiction over a subsidiary of a company does not establish personal jurisdiction over the parent company absent alter-ego-like evidence. Diece-Lisa Indus., Inc. v. Disney Enterprises, Inc., 943 F.3d 239 (5th Cir. 2019). Plaintiff sued various Disney entities in Texas, claiming that the use and sale of Disney’s character from Toy Story 3, “Lots-O’Huggin’-Bear,” violated Plaintiff’s “Lots of Hugs” trademark. Plaintiff sued Disney retailers that sold “Lots-O’Huggin’-Bear” merchandise in Texas as well as Disney IP companies that controlled the licenses for “Lots-O’-Huggin’ Bear.” The IP entities moved to dismiss for lack of personal jurisdiction, and the district court granted their motions. On appeal, Plaintiff asserted two theories to establish personal jurisdiction over the IP entities—the licensor theory and the franchise theory. The licensor theory proposed that because the district court had personal

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jurisdiction over the third parties to whom the IP entities grant their licenses, the court also had personal jurisdiction over the IP entities. In other words, the IP entities’ act of granting licenses and conducting quality control over retailers that sold infringing products in Texas were contacts sufficient to establish personal jurisdiction. The Court disagreed and held that Plaintiff needed to allege contacts that went beyond the licensor–licensee relationship to establish personal jurisdiction, and facts such as “sharing the right to litigate infringement cases with its licensees or controlling the licensee’s sales.” Exercise of quality control was not enough to establish personal jurisdiction. Under the franchise theory, Plaintiff argued that the entire Disney company should be treated as one franchise for purposes of personal jurisdiction. Because the district court had personal jurisdiction over some Disney subsidiaries, such as the retail entities, Plaintiff argued the court also had jurisdiction over other Disney subsidiaries, such as the IP entities. The Court disagreed and that held that “[g]enerally, ‘the proper exercise of personal jurisdiction over a nonresident corporation may not be based solely upon the contacts with the

forum state of another corporate entity with which the defendant may be affiliated’” (quoting Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 346 (5th Cir. 2004)). This presumption of institutional independence may be rebutted by clear evidence showing something beyond the mere existence of a corporate relationship between a resident and nonresident entity. This analysis is similar to the alter-ego analysis. Courts use the following Hargrave factors to determine whether the presumption of separateness has been established for jurisdictional purposes: “‘(1) the amount of stock owned by the parent of the subsidiary; (2) whether the entities have separate headquarters, directors, and officers; (3) whether corporate formalities are observed; (4) whether the entities maintain separate accounting systems; and (5) whether the parent exercises complete control over the subsidiary’s general policies or daily activities’” (quoting Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983)). Because the Plaintiff introduced no evidence to establish these factors, the Court held that it did not have personal jurisdiction overAUSTIN the IP entities under the LAWYER franchise theory. AL AL FEBRUARY 2020 | AUSTINLAWYER

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FEDERAL CRIMINAL COURT NEWS

State Bail Reform—More Like The Feds? BY DAN DWORIN

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.

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arris County, Texas’ most populous, recently settled a federal civil rights lawsuit by agreeing to a series of bail reforms, which will bring state pre-trial detention decisions in misdemeanor cases closer to the way they are customarily handled in the Austin Division of the Western District of Texas. In the state system, magistrates who issue arrest warrants typically set a bond amount at the time the warrant is issued. Defendants who are arrested without a warrant are brought before a magistrate to have bail set. Bail is set as

a dollar amount, with defendants either posting the amount of the bail in cash or hiring a bail bondsman to guarantee the bail (usually for a non-refundable fee which is 10 to 15 percent of the bond amount). The Fifth Circuit affirmed a lower court by holding that this practice, as applied to misdemeanor defendants in Harris County, is unconstitutional.1 In the federal system, arrested defendants whom the government seeks to detain are brought before a U.S. magistrate for a detention hearing, generally after they have either retained a lawyer or had counsel appointed. After hearing a summary of the evidence supporting the charge, either from a case agent’s testimony or by stipulation, the judge then hears any evidence concerning the defendant’s criminal history, ties to the community, employment, health issues, and anything else the parties choose to present at the hearing. The magistrate then either recommends release with conditions (which often include supervision by a pretrial services officer, drug tests, forfeiture of firearms and passports, etc.) or continued detention. When release is recommended, the longstanding practice in the Western District has been to recommend unsecured bonds in the vast majority of cases. Thus, the

defendant’s ability to raise large amounts of cash is not a factor in determining whether they should be released. As part of the settlement in Harris County, the county commissioners agreed to release 85 percent of all misdemeanor defendants on personal bonds (similar to an unsecured bond in federal court); only defendants charged with violent or repeat offenses need appear before a magistrate at all.2 The courts have adopted a risk-assessment tool to determine whether release is appropriate or under what conditions; this is similar to the bail reports generated by the U.S. pretrial services officers in the federal system. Other Texas jurisdictions have adopted similar practices, and lawsuits are pending in Dallas and Galveston counties seeking similar relief. Travis County has a robust pretrial services office which recommends personal (or unsecured) bonds for many misdemeanor defendants. Magistrates always sign bonds when they are recommended by that office, and in many cases do so even without a recommendation. In Travis County, anyone held in jail for more than a few days on a misdemeanor charge is set on a “bond review” docket, at which judges, with input from defense counsel and the State, try

to determine whether conditions of release could be imposed, despite an initial denial by pretrial services. Statistics show that outcomes for defendants who are out on bond are far better than for those who remain in jail; incarcerated defendants are more likely to plead guilty to expedite their release from jail rather than wait for a trial to test the state’s evidence. Taking money out of the jail-release equation certainly goes some way towards leveling the playing field between defendantsAUSTIN with resources and those LAWYER who are indigent. AL AL Footnotes 1. ODonnell v. Harris Cty., 882 F.3d 528 (5th Cir. 2018). 2. Jolie McCullough, “Harris County agreed to reform bail practices that keep poor people in jail. Will it influence other Texas counties?,” Texas Tribune, July 31, 2019.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW

Four Ways to Get More Involved in AYLA

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t brings me so much joy to see our membership increasing significantly each month! From our solo/government attorney, law student, and sustaining member (40+) categories, our membership is increasing at almost historic levels. This trend reflects the value that our community finds in AYLA. At each event, I love meeting so many new attorneys from such a broad spectrum of legal practices. It’s so wonderful to see networking at play when, for example, a lawyer who recently moved here from California is exchanging business cards with several new colleagues. At our hugely successful tailgate, thanks to our chair Franklin Hopkins and his tireless committee, one of our sponsors met a potential new client within five minutes of walking into the event. It’s not all propaganda! Valuable new connections and friendships are made at our events. This past year, we have seen our membership growing and becoming more diverse and robust. I really hope the trend continues. We hope to see you at our upcoming events. Below are four ways to get more involved with AYLA:

1. SERVE ON A COMMITTEE If you feel like you have too much on your plate to chair an event, but would still like to get 24

AUSTINLAWYER | FEBRUARY 2020

involved, sign up for a committee. Our 6th Annual Runway for Justice takes place on March 26, 2020 (mark your calendars, you don’t want to miss this event). This is our biggest fundraiser of the year, and we always need all hands on deck. You can volunteer in many ways: Help collect silent auction items, help set up the day of the event, or even help dress the models backstage! When I first signed up for the Runway for Justice committee years ago, I met an attorney whom I now consider a mentor and dear friend, with whom I joint-ventured on a medical malpractice case. I’m not sure we would have crossed paths but for Runway for Justice. 2. VOLUNTEER AT A COMMUNITY SERVICE DAY Check in regularly on our website (ayla.org) and Facebook page “Austin Young Lawyers Association–Community Service Days” for information on our community service days. This year, our hardworking chairs have already organized service days at BookSpring, Green Corn Project, Central Texas Food Bank, and Coats for Kids. 3. ATTEND OUR NEXT DOCKET CALL HAPPY HOUR We’re excited that our next Docket Call will be the Diversity Bar Mixer. We’re also hosting the American Bar Association Young Lawyers Division at this event, which takes place on February 13, 2020 at 5:30 p.m. at Sellers Underground. REFERRAL ALERT: If you bring a friend who signs up to become an AYLA member, you will be entered into a raffle for

AYLA and Austin Bar members at the 2019 Diversity Bar Mixer.

an Amazon gift card! (Note: Antikickback statute not applicable, we’re legally allowed to thank you with money!)

fastest-growing membership categories. Like our Facebook and Instagram pages for more announcements and sign-up opportunites, 4. FOREVER YOUNG and please email me anytime Don’t forget, contrary to popular AUSTIN with LAWYER any questions at president@ belief, there is NO AGE LIMIT AL AL ayla.org. TO JOIN AYLA. Our sustaining membership category is for attorneys over 40 years young. In fact, this has been one of our

UPCOMING EVENTS THURSDAY, FEB. 13 Diversity Bar Mixer 5:30 – 7:30 p.m. Sellers Underground 213 W. 4th St. SAVE THE DATE! THURSDAY, MAR. 26 6th Annual AYLA Runway for Justice To get involved, email debbie@austinbar.org.


AUSTIN YOUNG LAWYERS ASSOCIATION

The Origins of Lodestar BY BENJAMIN DOWER

How did a navigational term become synonymous with the product of an attorney’s hours expended and a reasonable hourly rate?

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ost litigators are familiar with the “lodestar method” of calculating attorney’s fees. The lodestar method multiplies the number of hours worked by the prevailing hourly rates.1 If you are like me, you may have assumed that the “lodestar” method derived its name from a foundational Lodestar case. But the real origin is much more interesting. The word “lodestar” derives from the combination of word “lode,” meaning “way or course,” and the word “star” referring to the celestial body. Thus, a “lodestar” is literally a guiding star. The first definition of “lodestar” in Black’s Law Dictionary reflects this origin, defining lodestar as

a “principle or fact that guides someone’s actions; an inspiration or model.” How did a navigational term become synonymous with the product of an attorney’s hours expended and a reasonable hourly rate? The first reference to the word “lodestar” to describe a method to calculate attorney’s fees occurred in 1973. The United States Court of Appeals for the Third Circuit opined that the reasonable hourly rate multiplied by number of hours worked on the case ought to be the “lodestar of the court’s fee determination,” adjusted thereafter.2 The word appears only once in the opinion. Prior to Oct. 31, 1973, the

word “lodestar” appears in only 139 judicial opinions across all state and federal courts. But since the Third Circuit’s Lindy Bros. Builders opinion, the word “lodestar” has been used in over 10,000 cases, including 178 in Texas state courts alone. Today, many litigators are likely completely unfamiliar with the original meaning of the word. It is unlikely that the Third Circuit understood at the time that its word choice would breathe new life into an archaic term. But as Oliver Wendell Holmes Jr. once said, “The life of the law has not been logic: It has been experience.” Perhaps nowhere doesAUSTIN that hold truer than LAWYER AL AL in legal language itself.

Footnotes 1. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 759 (Tex. 2012). 2. Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). Benjamin Dower works at the Office of the Attorney General of Texas representing state agencies and public servants, and also serves on the Board of Directors for AYLA.

AYLA Holiday Program 2019 Offered a “Toy Store” with 200 Toys and Magical Holiday Fun

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AYLA volunteers n Dec. 8, 2019 Auswrapped in festive tin Young Lawyers paper. Association memDue to the trebers volunteered mendous success at the YMCA of Austin East of the Fourth Communities Center to make the holidays extra special—even Annual AYLA magical—for local children and Tailgate for a families. The children participatCause, chaired by ed in fun holiday activities includFranklin Hopkins,  ing face painting, holiday crafts, a AYLA was able to bounce house, and even a magic meet its goal of show performed by Austin Bar purchasing 200 Past President Adam Schramek toys for children and his talented “assistant” (and this year and looks spouse), Third Court of Appeals forward to helping even more in Justice Chari Kelly.  AUSTIN LAWYER AL AL A “toy store” was provided 2020.  by AYLA and while the children were being entertained, their loved ones were able to select a gift for each child, which

COUNTERCLOCKWISE FROM TOP: Austin Bar Past President Adam Schramek and Third Court of Appeals Justice Chari Kelly with Santa. Schramek entertains with a magic show. Loads of toys ready for stocking the toy store. Jessica Mangrum with Santa. FEBRUARY 2020 | AUSTINLAWYER

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PRACTICE POINTERS

Arbitration Agreements—Not Mandatory BY WILSON STOKER

Wilson Stoker is a Principal with Cokinos | Young and Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization

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n 2018, the Supreme Court reconciled years of debate between split federal circuits into a unified standard that permits the waiver of class actions via the compelled individual arbitration of employment disputes. In Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018), the issue was whether employers could compel employees to waive their rights to file or participate in class or collective actions and individually arbitrate their claims. The National Labor Relations Board argued on behalf of employees that these waivers unlawfully infringed on employees’ rights to engage in protected concerted activity under the National Labor Relations Act. The Supreme Court held that “arbitration agreements providing for individualized proceedings must be enforced,” and upheld the waivers. It was commonly thought that Epic Systems was a momentous victory for employers that would curtail protections of employee rights, and widely predicted that all employers would universally implement mandatory arbitration agreements across the board. Well, not so fast. Employers have 26

AUSTINLAWYER | FEBRUARY 2020

found that mandatory arbitration agreements are not a cure-all for employee-related claims. There are certainly benefits to arbitration agreements, but those benefits for employers are not found in every instance or for every employee. Seasoned employers are wisely analyzing the benefits of arbitration agreements for each group of employees before brashly implementing mandatory arbitration agreements just because they can. Perhaps the most significant benefit to employers in the #MeToo era is the confidentiality that arbitration provides. Arbitration proceedings are generally not public and even the existence of arbitration proceedings is generally unknown unless one of the parties seeks to enforce an arbitration award in court. The private nature of arbitration proceedings means that there is less risk of unwanted media attention. It stands to reason that the chance of employees filing copycat claims is reduced. Other “benefits” perceived to be provided by arbitration are not so simple and cut both ways. For instance, a common perception is that arbitration costs less for employers and acts as a deterrent for employees because of the cost. That is not necessarily the case. Employers must include the cost to file the claim, which is usually split or carried entirely by the employer, in the equation. Moreover, these fees do not include the arbitrators’ time at their standard hourly rate. Employers are paying the arbitrator (and defense counsel) for all pre-hearing conferences, discovery and motion practice, the actual hearing time, as well as the drafting of the opinion. Arbitrators also allow plaintiffs to engage in discovery that is nearly as expansive as courts permit. Thus, defense costs associated with arbitration can outweigh defense costs in a traditional court proceeding. Moreover, these costs only

Employers have found that mandatory arbitration agreements are not a cure-all for employee-related claims. increase if you are arbitrating dozens, or hundreds, of individual claims as opposed to one class action. If plaintiffs’ lawyers are forced to comply with arbitration agreements, they simply file individual arbitration claims instead of having class or collective actions. The deterrent effect of arbitration agreements also does not always hold true. It is thought that filing costs of arbitration will deter employees from bringing claims. That may be true, but at the same time arbitration allows employees to bring weak claims, at greater expense to employers. Absent an agreement to arbitrate, nuisance claims will, with the help of an investigator, many times disappear at the administrative stage with the EEOC or another administrative agency. Even if a case is filed in trial court, a weak claim can be summarily dismissed with a 12(b)(6) motion or similar procedural mechanism, or before trial at summary judgment. If the employee demands arbitration, however, the employer will be compelled to proceed to arbitration. Motions to dismiss and for summary judgment are rarely considered, let alone granted, by arbitrators. Weak claims filed in arbitration are likely to get arbitrated at the employer’s expense. Well, what about runaway jury verdicts, though? Another common justification for mandatory arbitration agreements is to avoid massive jury verdicts. The theory is that employers are more likely to prevail on a claim’s merits, and if an employer is found to be in violation of an employment statute, arbitration will enable the employer to avoid the risk of the

jury reaching an excessive verdict. If this is the concern, it can also be addressed with a jury trial waiver. Contractual jury trial waivers have been upheld by courts for decades. Furthermore, jury trial waivers offer employers one additional protection above and beyond that which arbitration offers—appeals. Arbitration awards can be appealed only in very limited circumstances, with a very low rate of success. Bench trials, on the other hand, are appealable for a variety of reasons. Attorneys who work with employers that choose to implement arbitration agreements must pay particular attention to the form and style of the agreements to ensure they are upheld. A standalone agreement to arbitrate, containing nothing else, is more likely to be upheld than one included with other policies. The arbitration agreement should NOT be part of the employee handbook. Employers should use large, bold, all-capital disclaimers, alerting the employee that the right to a jury trial and to proceed as part of a class or collective action is being waived. Arbitration agreements provided at the beginning of employment, in connection with a promotion or payment, are more likely to be enforced in certain jurisdictions. It is also important to include language specifying broad classes of claims that the arbitration agreement covers, including the specific employment laws. Finally, it is vital to know the applicable discrepancies between different states’ laws—not just the law of the state chosen by the arbitration agreement, but alsoLAWYER the state AUSTIN where the employee works. AL AL


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