austinbar.org JULY/AUGUST 2019 | VOLUME 28, NUMBER 6
Introducing Austin Bar President—D. Todd Smith
n July 1, 2019, D. Todd Smith officially took over the reins of the Austin Bar Association as he began his term as president. Joining him on the executive committee for the 201920 bar year is Kennon Wooten, president-elect; David Courreges, secretary; Amanda Arriaga, treasurer; Adam Schramek, past-president; Sandy Bayne, AYLA president; and Jorge Padilla, AYLA past-president. Smith, a civil appellate lawyer with the Smith Law Group, is a fifth-generation Texan originally from Fort Worth. His parents moved to rural Johnson County when he was in elementary school, and he grew up in the Crowley area. He returned to Fort Worth for college and earned his bachelor’s degree at TCU. From there, he headed out to West Texas, where he received a master’s degree in public administration from Texas Tech University, and then south to San Antonio, where he earned his J.D. from St. Mary’s University School of Law. He met his wife, Julie, when they were undergrads at TCU. Married 22 years, they have two sons, Landon (17) and Walker (14). Landon is a senior at Hyde Park High School, and Walker is a freshman at Westlake High School. Smith agreed to be interviewed so the members of the Austin Bar
could learn more about their new president and his plans for the organization in the coming year. AUSTIN BAR: Why did you want to become a lawyer? SMITH: I am the only lawyer in my family. I first thought about a legal career after my high school speech teacher recruited me and some other students to represent Crowley High in University Interscholastic League speech and debate competitions. When I was a senior, I wound up making the state tournament in standard debate. By that point, I could argue both sides of a controversial issue fairly well. Law seemed like a natural fit. Another major influence was my father’s reverence for the judicial branch. Dad spent his career working in the field of federal probation, and he valued the relationships he developed with the judges he worked for. He spoke well of them and was honored that they trusted and relied on his recommendations. He made sure I had the opportunity to meet the judges and ask them questions when I first started thinking about law school. He later tried to talk me out of going—thinking he could steer me toward a career in government like he’d had—but by then, my mind was made up. AUSTIN BAR: What was your first job out of law school?
(from left) Austin Bar President D. Todd Smith with his wife, Julie; and sons, Walker, and Landon.
SMITH: I was privileged to complete a two-year clerkship with Texas Supreme Court Justice Raul A. Gonzalez. That job sparked my interest in appellate work and helped me appreciate the skill set needed to become a successful appellate lawyer. It also brought me to Austin! AUSTIN BAR: What has been your career path from then until now? SMITH: After finishing my clerkship, I joined Fulbright & Jaworski, where I had the opportunity to practice with, and learn from, some of the finest appellate lawyers in Texas. After six years in the Dallas office, I transferred to Austin and stayed three more years before launching my own firm in 2006. Since then, I’ve focused my practice on civil appeals and consulting in matters before the Texas Supreme Court, the Third Court of Appeals, and other courts in and around Central Texas.
AUSTIN BAR: How long have you been involved with the Austin Bar? SMITH: I joined the Austin Bar after moving back in 2003 and really got involved when I went out on my own in 2006. I officed on the twelfth floor at 816 Congress Ave., so an abundance of CLE, networking, and service opportunities were available simply by riding the elevator down five floors. I soon became active in sections and started volunteering for committee work. I ran for director after chairing the Solo/Small Firm and Civil Appellate Sections and put in to become an officer when the time felt right. Every stage has been thoroughly enjoyable. AUSTIN BAR: Why would you encourage someone to get involved? SMITH: Most lawyers practice solo or in small-firm settings. In continued on page 5
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AUSTINLAWYER JULY/AUGUST 2019 | VOLUME 28, NUMBER 6 AL A L INSIDE FEATURED ARTICLES
Introducing Austin Bar President—D. Todd Smith
Ground-Breaking Ceremony Held for New Travis County Civil and Family Courts Facility
Austin Bar/AYLA Leadership Academy Hosts Pie Fest
Third Court of Appeals Civil Update
Thank You, Hilgers House Donors and Supporters!
Celebrating a Job Well Done
Third Court of Appeals Criminal Update
12 100 Years of Women’s Suffrage in Texas
Federal Criminal Court News
16 The “Mentoring A Student” Program
20 Hon. Lee Yeakel Inn of Court Presents Successful CLE Programs
22 American Inns of Court and American Board of Trial Advocates
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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
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Introducing Austin Bar President—D. Todd Smith continued from cover
our profession, though, going it alone has become increasingly dangerous. We’re all human, which means we have an innate need to belong, to exchange social feedback, and to receive support when our path is uncertain. The Austin Bar provides innumerable opportunities to connect at whatever level one feels comfortable. Attend a CLE event or section meeting and just observe and learn. Or, go all in and join a committee or sign up for one of our award-winning pro bono projects. There truly is something for everyone in this welcoming and inclusive organization. Complementing these opportunities, we’ve acquired a permanent home on Judges Hill and will be transitioning to that space during my term. Anyone who has seen the building appreciates its upside, as we’ll be able to host committee meetings, receptions, and other events on-site. The historic property will provide a wonderful environment for our board and committees to meet and further the Austin Bar’s mission of enhancing the legal profession, administration of justice, and our community through education, networking, and public service. There’s never been a better time to join and get involved. AUSTIN BAR: What has been the biggest benefit you’ve received from being involved in the Austin Bar? SMITH: The CLE programs
alone make Austin Bar membership worth the price of admission. For me, though, participating on committees and getting involved in section leadership was where things took off. I found myself working shoulder-to-shoulder with a cross-section of lawyers and judges I probably would not have come to know otherwise. Now, I am privileged to count many of these folks among my colleagues and friends. AUSTIN BAR: If you could give your younger self a word of advice, what would you tell him? SMITH: Don’t let the perfect be the enemy of the good. AUSTIN BAR: What are your goals for the upcoming year? SMITH: Having acquired Hilgers House during the past bar year, our new focus will be getting it ready, moving in, and getting settled. We have some work left to do in the transition, including a renovation that will turn the carriage house garage into a boardroom-type meeting space and creating ADA-compliant restrooms. I would love for everything to be completed so we can showcase the property to national bar leaders when they come to town in February 2020 for the American Bar Association midyear conference. No pressure! AUSTIN BAR: Do you have any new initiatives or programs you’re hoping to start this year?
With help, I am developing an initiative that will address lawyer well-being at the local level. SMITH: We lawyers have trouble coping with the stresses of our profession in healthy ways. This is not some generic problem we only hear about in the national news. In recent years, we have lost valued members of our own legal community to suicide and substance abuse, among other causes. With help, I am developing an initiative that will address lawyer well-being at the local level. This is about more than diet and exercise, although those things certainly factor into one’s overall wellness. We need to break through the stigma that keeps those struggling with mental-health issues from talking about them and getting the help they need. AUSTIN BAR: What challenges do you think we face as an organization, and how do you think we can overcome them? SMITH: Providing the same or a better level of service without raising dues is a challenge in any voluntary organization. We have been confronted with increasing overhead costs and somewhat lower membership numbers, creating a challenge on both the revenue and expense sides of the balance sheet. And for a while, we’ll have the joy of paying both a mortgage and rent
as we complete the Hilgers House transition. We’ve planned for this overlap, though, and the Hilgers House capital campaign has gone very well, so we are very stable financially despite this challenge. Still, it would be great if we could sublease our 816 Congress space (so we can put that money back into the house) and increase our membership numbers. Once we jettison our downtown rent, our monthly operating expenses will be lower than they were before. AUSTIN BAR: What is a littleknown fact about yourself? SMITH: The initial “D” in my name stands for “David,” which was my father’s middle name. AUSTIN BAR: Is there anything else you’d like to share about yourself or your goals? SMITH: Organizationally, we are in great shape right now. Our staff is top notch, and we continue to win awards for our programming and raise money for the Austin Bar Foundation and its charitable projects. We’re planning another fantastic winter gala, and we’ll be celebrating the 30th anniversary of the Bench Bar Conference next spring. It’s shaping up toLAWYER be anothAUSTIN ALus! AL er great year. Please join
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Ground-Breaking Ceremony Held for New Travis County Civil and Family Courts Facility
n May 31, 2019, Travis County leaders convened to break ground on the site of the future Civil and Family Courts Facility—a day many in attendance thought would never come. According to Austin Bar Association Executive Director DeLaine Ward, the Austin Bar has been working with the Travis County Commissioners since 2002 to get a new courthouse built. Travis County Judge Sarah Eckhardt kicked off the ceremony by speaking to the crowd gathered at 1700 Guadalupe, where the new courthouse will be constructed. Joining Judge Eckhardt as speakers at the event were Travis County Commissioners Brigid Shea and Jeff Travillion, Travis County District Judge Lora Livingston, and Austin Bar Past-President Adam Schramek. “This ground-breaking marks the beginning of the construction
phase of our plans for a new civil and family courthouse,” remarked Judge Livingston. “This new courthouse will provide a safe and dignified space for the resolution of civil and family law disputes in Travis County. I could not be more excited! There are so many people to thank including Judge John Dietz and, of course, every single member of the Travis County Commissioners Court.” Schramek reminded the audience that, as the preamble to the U.S. Constitution states, our country was founded in order to establish justice. He said, “And so today, as our community comes together to celebrate breaking ground on a new courthouse, it’s important to remember that we’re not just celebrating a building, a new facility, or a construction project. We’re celebrating our community’s investment in the founding ideals of our democracy. A place
Travis County leaders, including members of the judiciary and Austin Bar Past-President Adam Schramek, break ground on the new Travis County Civil and Family Courts Facility.
where rights will be adjudicated by an independent judiciary that guarantees due process of law. We’re celebrating the creation of a place that will be more accessible, better equipped, and better able to serve the people of Travis County. We’re celebrating the advancement of our civil justice system. And ultimately, we’re celebrating today the prospect that this new courthouse will take us one step closer to being able to
deliver on that enduring promise of justice for all.” The new courthouse facility is scheduled to be completed in 2022 and will feature 25 new, state-of-the-art courtrooms and dedicated safe victim waiting areas. It will also include conference rooms for attorney-client meetings, a short-term child drop-off center, a law library, a self-help center, AUSTIN and a four-level LAWYER underground parking garage. AL AL
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Austin Bar/AYLA Leadership Academy Hosts Pie Fest Event Benefits the Austin Bar Foundation’s “Our Home on Judges Hill” Capital Campaign
n June 1, 2019, the Austin Bar/AYLA Leadership Academy class of 2019 hosted Pie Fest, a pie-themed cook-off that raised almost $16,000 for the Austin Bar Foundation’s “Our Home on Judges Hill” capital campaign in support of Hilgers House. Events included a Frito pie chili cook-off and a dessert pie competition. The contestants were judged by esteemed members of the local judiciary. Thirteen teams competed in the chili cook-off. First place in the Judges’ Choice category was awarded to Team Red Ipsa Loquitor, comprised of Clint Twaddell and Will Allensworth. The awards for Crowd Favorite and Best Team Spirit went to Team Misfits, comprised of Sarah Harp, Jessica MacCarty, and Mary McCahon-House. Emily Morris and Nicole LeFave tied for first place in the dessert pie competition. Pie Fest also included a silent auction offering the opportunity to pie members of the Austin Bar in the face for a good cause. The pie-in-the-face volunteers included Jeff Otto, Randy Howry, Jessica Mangrum, Maria Cantù Hexsel, Kennon Wooten, and Ben Dower. Thank you to all of Pie Fest’s sponsors, participants, and attendees, especially the local judges,LAWYER for making the event such AUSTIN a success. AL AL
1. Members of the judiciary and pie judges included Texas Supreme Court Justices Debra Lehrmann, Jeff Boyd, and Brett Busby. 2. Adam Schramek prepares to plant a pie in Kennon Wooten’s face. 3. Shafeeqa Giarratani and her daughter enjoying some pie on the Howry Breen Veranda with Justice Chari Kelly. 4. Judge David Wahlberg sampling Frito pie made by the Jackson Walker summer associate team. 5. Members of the 2019 class of the Austin Bar/AYLA Leadership Academy, which coordinated and hosted the event. 6. League of Lady Lawyers team: (from left) Colleen Murphey, Catherine Chamblee, Allison Cunningham, and Emily Willis. 7. Judges Ami Larson, Darlene Byrne, Texanna Davis, and Bradley Temple. 8. (from left) Adrienne Redinger, Meagan Jones, and Emily Morris keep an eye on the pies.
8 JULY/AUGUST 2019 | AUSTINLAWYER
Thank You, Hilgers House Donors and Supporters!
he Austin Bar Foundation sincerely thanks each and every donor who has generously supported the “Our Home on Judges Hill” capital campaign. Without the support of these firms and individuals, we wouldn’t be planning to move into Hilgers House early this fall. After 126 years without a permanent home, we are looking forward to continuing our legacy of service from our new headquarters. And we can’t wait for you to visit Hilgers House—our home on Judges Hill. The capital campaign is now 80 percent of its way towards its final goal. Gifts of $5,000 and up will be recognized on the Bill Whitehurst Leadership Wall in Hilgers House, and gifts of $1,000 to $4,999 will be recognized on the Jackson Walker Visionary Wall in the Loewy Family Carriage House. There is still time to have your name added to this list of influencers in Austin’s legal community. More details on purchasing pavers for the garden spaces will be available during phase two of the capital campaign. The following list of donors is current as of 6/13/19.
THE BILL WHITEHURST LEADERSHIP WALL Alexander Dubose Jefferson & Townsend Amanda A. Arriaga Austin Bar Civil Appellate Section Austin Bar Estate Planning & Probate Section Tom and Robbie Ausley Austin Trust Company Austin Bar/AYLA Leadership Academy Class of 2019 Austin Young Lawyers Association Barron & Newburger Steve & Jennifer Benesh Cleveland | Terrazas Judge Jim Coronado David Courreges Berry Crowley, in memory of Mike Crowley, past-president of the Austin Bar Association Judge Karin Crump D. Michael Dodd Duggins Wren Mann & Romero Vic Feazell Fowler Law Firm Graves Dougherty Hearon & Moody Howry Breen Hutcheson & Popp Jackson Walker Rusty Kelley Mike Kennedy Mishell B. Kneeland Littler 8
AUSTINLAWYER | JULY/AUGUST 2019
The Lola Wright Foundation The Loewy Family Laura Prather McKool Smith Janet McCullar Judge Orlinda Naranjo and Jim Ewbank Norton Rose Fulbright Bill & Margaret Parrish Yvonne K Puig & Edward O. Lent III Reeves & Brightwell Chief Justice Jeff Rose Cindy Saiter Adam T. Schramek and Justice Chari L. Kelly Sharon M. Schweitzer Lance and Laura Sharp D. Todd Smith Jason W. Snell Thompson & Knight Maitreya and Rachel Tomlinson Vinson & Elkins Karen & Stanley Wang William Stutts Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob Winstead Judge Todd Wong Judge Lee and Anne Yeakel
THE JACKSON WALKER VISIONARY WALL Austin Bar Administrative Law Section Austin Bar Business, Corporate & Tax Section Austin Bar Civil Litigation Section Austin Bar Construction Law Section Austin Bar Labor & Employment Section Austin Bar Real Estate Section Austin Bar Solo/Small Firm Section Austin Black Lawyers Association Alex Fuller Law, PLLC Jamal Alsaffar Anthony Arguijo Judge James L. Arth Don Ballard S. Meade Bauer Becky Beaver Vasu Behara Eric Behrens Ches & Diann Blevins Amy Bloomquist Roger B. Borgelt Wm. Terry Bray Lea N. Brigtsen Jay Brim Cain & Skarnulis The Carlton Law Firm Randy Chapman Michelle Cheng Bollier Ciccone Collaborative Divorce Austin Judge Margaret A. Cooper Martha Dickie and James Rader Leslie Dippel Claude Ducloux Maggie Ellis and Leslie Hill Ed & Peggy Fernandes Judge Wilford Flowers Friday Milner Lambert Turner Judge Maya Guerra Gamble Ann Greenberg Dahlia Marie Gutierrez The Haney Law Firm Hanna & Plaut Danielle and James Hatchitt
George E. Henderson Laurie Higginbotham Greg Hitt Judge Nancy and Jack Hohengarten Brad and Julie Houston Judge Dustin and Emily Howell Denise Hyde Judge Scott Jenkins Jennifer Piskun Johnson Bill Johnson Dirk Jordan Austin Kaplan Patrick Keel Lowell A. Keig Kelly Hart & Hallman Barbara Jane Lipscomb Alice and Jack London Tonia Lucio Jessica Mangrum Judge Catherine Mauzy Dudley D. McCalla Scott McCown & Maura Powers Jo Ann Merica Susan J. Miller Minton, Burton, Bassett & Collins Amy E. Mitchell Kevin S. Mullen Carly Gallagher Murray Karen Neely Brian & Laura O’Toole Joseph C. Parker, Jr. Judge David & Diana Phillips Hon. Velva L. Price Reed Claymon Meeker & Hargett Beverly G. Reeves Pete Reid Richards Rodriquez & Skeith Deborah Lynn Richardson Ruffner Schoenbaum Peter Ruggero Sara Saltmarsh Gregory P. Sapire Jane Sarosdy Dean A. Schaffer Judge Eric Shepperd Judge Jan Soifer Judge Tim Sulak Christopher Taylor Sherine Thomas and Tom Nuckols The Troilo Law Firm Paul J. Van Osselaer Ben Vaughan William F. Warnick Jane Webre and David Plaut David P. Whittlesey Kennon L. Wooten Senior Judge Stephen Yelenosky
INDIVIDUAL DONORS Joseph M. Abraham Richard H. Anton Christine Henry Andresen Kay Andrews Patrice Arnold Austin Bar ADR Section Austin Bar Animal Law Section Austin Bar Entertainment & Sports Law Section Austin Bar Oil, Gas, & Mineral Law Section Lydia Wommack Barton Thomas O. Barton Ryan and Elliott Beck Bill Black
Heidi Bloch Zach Bowman Justice Jeff Boyd Geoffrey Brow Judge Darlene Byrne Randy C. Cain Capital Area Paralegal Association Gerald C. Carruth Lona Chastain Fleur A. Christensen Keith and Lindsey Cohan Suzanne Newell Dalton Joe Daly DeDe Church & Associates Drake Law Rosane Easton Gloria Leal Ehrie Chris Elliot Benjamin Evans Sara Foskitt & Dave Floyd Helen Foster Mark Foster Jennifer S. Freel Philip C. Friday, Jr. Judge Raul Arturo Gonzalez Ron Greening Judge Andy Hathcock Clarke Heidrick Jim Hemphill Gina Rae Hogan-Wyatt Heather Jones Holmes Nina Hess Hsu Candace Hunter D’Ann Johnson Kenton D. Johnson Woodie Jones Mary Kenney Meghan Kempf Pete Kennedy Doug Kilday William Koch Law Office of Kelley Dwyer Law Office of David Goodman Law Office of Tim Whitten Judge Betsy Figer Lambeth Hope Lochridge Bill Locke Judge Aurora Martinez-Jones John McFarland John J. Migl Nicole Miller Emily Morris W. Michael Murray Todd Nickle Sandra R. Nicolas Marilyn Poole Matt Powers Cynthia O’Keefe Justice Bob Pemberton Richard Peña Ashley Presson Morris W. Price, Jr. Sandoval Family Law Michael Quirke Abby & Chris Ryan Pete Schenkkan Christyne E Harris Schultz Pam and Jack Sigman Bea Ann Smith Cassie B. Stinson Amanda G. Taylor LAWYER Justice Gisela D. AUSTIN Triana L AL Waller Landsden Dortch &ADavis
Celebrating a Job Well Done End-of-Year Reception Held for Austin Bar and AYLA Boards
embers of the boards of directors for the Austin Bar Association and the Austin Young Lawyers Association celebrated the end of another successful bar year on May 29, 2019 at the Austin Club. The event was the culmination of the leadership of Austin Bar President Adam Schramek and AYLA President Jorge Padilla along with several members of their respective boards, whose terms expired on June 30, 2019. The event provided the opportunity to give two special awards to outstanding members of the legal community. Schramek presented the Regina Rogoff Award to Leslie Hill, chief counsel of the Travis County Office of Child Representation and newly-elected member of the Austin Bar Board of Directors. The Regina Rogoff Award is presented annually and recognizes outstanding public sector service as a tribute to the career and achieve-
ABOVE LEFT: Kennon Wooten presented Former Justice Bea Ann Smith with the Professionalism Award. ABOVE MIDDLE: Adam Schramek presented Leslie Hill with the Regina Rogoff Award. ABOVE RIGHT: Members enjoy a celebratory reception.
ments of Regina Rogoff, former executive director of Legal Aid of Central Texas. Kennon Wooten presented the Professionalism Award to Former Justice Bea Ann Smith. The Professionalism Award is given annually in partnership with the Texas Center for Legal Ethics and honors an Austin attorney who best exemplifies, by conduct and character, truly professional traits, whom others in the Bar seek to emulate, and whom all in the Bar admire. In addition, each outgoing president was given the opportunity to
recognize and honor some of their outstanding board members and committee chairs. Padilla presented Rudy Metayer with the Outstanding Young Lawyer Award, Emily Morris received the Mentor Award, Amber Haney won the Liberty Bell Award, and Jennifer Hopgood and Erin Bennett both received Outstanding Committee Chair awards, with the President’s Award of Merit going to AYLA President-Elect Sandy Bayne. Bayne recognized Padilla for his year of service as president.
Schramek presented Blair Dancy with the Outstanding Director Award, Amanda Arriaga with the Outstanding Committee Chair Award, and Austin Kaplan and Amanda Taylor with President’s Awards. Austin Bar President-Elect Todd Smith presented Schramek with a plaque and thanked him for his service and leadership as president this year. New board members and officers for both organizations AUSTIN LAWYER took office July 1, A 2019. L AL
JULY/AUGUST 2019 | AUSTINLAWYER
BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Jenny Forgey Jamie Giron Steven Haspel Katherine Oncken Andrew Snyder Harriet Wessell
ABOVE: Forbes, Kidwell, Ruffner, Schoenbaum, Suttle
ABOVE: Taylor, White
Locke Lord partner Susan Kidwell received the Pro Bono Attorney Award from the Travis County Women Lawyers’ Association and the Foundation.
Ruffner Schoenbaum was a finalist for the Rising Star award as part of the fourth annual Austin Woman’s Way Business Awards by Austin Woman Magazine. The firm was selected for recognition from over 300 nominees. Founding partners, Eleanor Ruffner and Lauren Schoenbaum, lead their team of litigators and transactional attorneys. Congratulations to Richard Suttle, a partner at Armbrust & Brown, for winning the Austin Business Journal’s 2019 W. Neal Kocurek Commercial Real Estate Special Achievement Award. Butler Snow is pleased to announce that Amanda Taylor won the Litigation Appellate Attorney Award from Travis County Women Lawyers’ Association and Foundation. NEW TO THE OFFICE
The Snell Law Firm welcomes Melissa White to the firm. As a senior attorney, she will focus on business disputes and civil litigation matters. Thomas A. Forbes has joined the office of Butler Snow in Austin. Forbes focuses his practice on government affairs, regulatory matters, and business transactions.
AUSTINLAWYER | JULY/AUGUST 2019
100 Years of Women Suffrage in Texas We’ve Come a Long Way, but We Still Must Fight for Full Equality BY JENNIFER HOPGOOD
Jennifer L. Hopgood is an Assistant County Attorney in the Travis County Attorney’s Office and a board member of the Travis County Women Lawyers’ Association. Any views expressed in this article are solely the author’s personal opinions.
n June 28, 1919, the Texas Senate approved the 19th Amendment to the Constitution of the United States, and Texas became the ninth state in the country to pass legislation guaranteeing the right of women to vote. Although 1919 marked a successful culmination of decades of effort to achieve voting equality for women, the last hundred years have been marked by inconsistent advances for all women and in important areas such as equal pay. Women Suffrage in Texas The fight for women suffrage in Texas largely paralleled the suffragist movement in the United States in general. In 1875, the Supreme Court in Minor v. Happersett, 88 U.S. (21 Wall.) 162, held that the U.S. Constitution did not grant anyone, specifically a female citizen of the state of Missouri, a right to vote even when a state law granted a right to vote to certain other classes of citizens. The Supreme Court reasoned that the Privileges or Immunities Clause of the 14th Amendment did not explicitly give citizens an affirmative right to vote. Despite the Court’s opinion in Minor, states and territories had begun to pass
AUSTINLAWYER | JULY/AUGUST 2019
laws ensuring the right of women to vote. In 1869, Wyoming was the first territory or state to codify in its constitution female suffrage. Conversely in Texas, the idea of franchise being conferred on women was unsuccessfully raised during the Constitutional Convention of 1868-69 as well as subsequent legislative sessions in the late 1800s to early 1900s. Women formed suffrage clubs in Texas, notably in Austin in 1908 and in San Antonio in 1912 by Mary Eleanor Brackenridge. In 1913, the first statewide suffrage organization, the Texas Woman Suffrage Association, met in San Antonio and renewed the fight to achieve women suffrage. Women faced age-old arguments— custom dictated that the government sphere be reserved for men or that a women’s proper place was in the home tending to children. Anti-suffrage literature from the time shows the antiquated views espoused to undercut efforts to achieve voting rights for women. To counter these claims, women engaged in well-coordinated petitioning of politicians, arguing that enfranchisement would help to achieve better schools, public health, and a generally improved life for all citizens. Against the backdrop of World War I, newly reorganized and nationwide suffrage movements began to achieve success. Efforts by women in Texas began to pay off. In the 1917 legislative session, resolutions to enfranchise women were introduced; however, then-governor James E. Ferguson vigorously opposed women’s suffrage. After Ferguson was impeached and removed from office in the summer of 1917, his successor, Lieutenant Governor William P. Hobby, proved friendly toward women’s suffrage. In March 1918, in a called session, Charles B. Metcalfe of San Angelo introduced a bill to permit women to vote in primaries. Governor Hobby signed the bill into law, and in 17 days
ABOVE: A group of Texas women, led by three dressed in white, marched in a suffrage parade under the Texas banner in Washington, D.C. in April 1913. RIGHT: Anti-suffrage literature prior to the ratification of the 19th Amendment in 1920. Image credit: Texas State Library and Archives Commission
386,000 women registered to vote in the Democratic primary held in July 1918. In January 1919, Governor Hobby recommended that the Texas Constitution be amended to extend full suffrage to women. The amendment was defeated, in large part because a companion amendment would have imposed a citizenship requirement for foreign-born persons. After the first defeat in Texas, in June 1919 the federal women suffrage amendment was submitted to the states for ratification as the 19th Amendment, which states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States
or by any State on account of sex.” The Texas Legislature convened in special session on June 23, 1919, with the House adopting a resolution to ratify the amendment, with Senate approval on June 28. Notably, Texas was the first southern state to ratify the 19th Amendment. With the ratification by Tennessee on August 18, 1920, the 19th Amendment became part of the Constitution and nationwide women now had the right to vote. The Ongoing Struggle to Achieve the Right to Vote and Sit on Juries Within the larger context of voting, women of color were,
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like their male brethren, denied the right to vote through various means such as literacy tests, poll taxes, and exclusion from primary elections. In Texas, African-Americans were denied the right to participate in primary elections of the Democratic Party. Finally, in 1944 the Supreme Court overturned this practice in Smith v. Allwright, 321 U.S. 649 (1944), holding that the restricted primary denied Smith, an African-American dentist who resided in Houston, of his equal protection and that the State of Texas had unconstitutionally allowed a political party to discriminate on the basis of race. Not until the passage of the Voting Rights Act of 1965 did the federal government act to ensure that all citizens, regardless of color, were guaranteed equal access to vote. In the context of juries, the right to vote did not automatically extend to the right to serve as a juror. In 1961, the Supreme Court, in Hoyt v. Florida, 368 U.S. 57, held that the state’s “opt-in” policy for female jurors was constitutional, reasoning that universal exemption of women
from jury service was constitutional because jury service was a burden to women, rather than a responsibility or privilege. And not until 1979 did the Supreme Court reverse Hoyt, holding that “opt-in” policies were unconstitutional. Duren v. Missouri, 439 U.S. 357 (1979). Ongoing Issues of Inequality: Parity in Pay Although women have achieved great advancement in the ability to pursue careers, such issues as pay inequality continue today. In 1872, the Supreme Court in Bradwell v. Illinois held that a woman who graduated from law school had no right to inclusion in a state bar. Myra Bradwell challenged the state bar’s refusal to allow her to practice law. The concurring opinion stated that, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” 83 U.S.130, 141 (Bradley, J., concur-
ring). Fortunately, by 1925 such antiquated notions of gender had faded away. In that year, Texas Governor Pat Neff appointed three female attorneys to a special Texas Supreme Court for five months to hear the appeal of a fraternal organization. While women now comprise half of all law school admissions, women in general still earn only 76 percent of the amounts earned by their male counterparts, despite assuming equal job duties and responsibilities. And African-American women earn only 64 percent and Hispanic women 56 percent of each dollar earned by white, non-Hispanic men. Although the U.S. Congress passed the Equal Pay Act in 1963, in Texas the Texas Equal Pay Act applies only to female public-sector employees. As a result, currently in Texas private-sector female workers employed by a business with 14 or less employees lack protection from pay discrimination. Remedies such as ratifying the Equal Rights Amendment or passing a state law that would ensure equal pay for all private-sector female
employees would help achieve pay parity for all Texas women. Looking Ahead Certainly, in this centennial year, we have much to celebrate in women gaining the right to vote in Texas in June 1919. However, the right to vote did not automatically confer rights on all women, particularly for women of color, or ensure such basic rights as the right to serve on a jury of one’s peers—a right not guaranteed until as recently as 40 years ago. Professionally, although women have made great strides in achieving equality, equal pay for equal work remains an unrealized, yet achievable, goal. We all have work to do to guarantee that women— our sisters, mothers, wives, and daughters—earn the same as their AUSTINLAWYER AL AL male counterparts. Sources: Handbook of Texas Online, A. Elizabeth Taylor, “WOMAN SUFFRAGE,” accessed June 01, 2019, http://www.tshaonline. org/handbook/online/articles/viw01. Rough Road to Justice: The Journey of Women Lawyers in Texas, Betty T. Chapman, Texas Bar Books (2008).
JULY/AUGUST 2019 | AUSTINLAWYER
The Two Types of Appositives Restrictive and Nonrestrictive BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
n appositive is a noun or noun phrase that restates or renames another noun. Here, the noun Robin Lang restates or renames defendant: • The defendant, Robin Lang, did not hire a lawyer. But properly punctuating appositives depends on the type of appositive, and the type depends on whether the appositive is essential or additional to the meaning of the original noun. The first type (essential) is called a restrictive appositive. This type of appositive renames or restates the noun in a way that is essential to a full understanding of the sentence. The appositive defines or restricts the original noun in a way that differentiates it from other nouns of that type. For example: • The politician Jordan Lopez gave the commencement address. This sentence implies that there are multiple politicians and that the one who gave the commencement address was Jordan Lopez. That makes sense. If the appositive were set off with commas, it would create confusing implications: • The politician, Jordan Lopez, gave the commencement address. This sentence implies that there is only one politician (in the world?) or that the politician is being differentiated from other nonpoliticians in some way. The commas are unnecessary. Another example using my own name: • The dean asked Wayne Schiess the legal-writing teacher to edit the manuscript. This sentence implies that there are multiple people named Wayne Schiess and that the
dean asked one of those Wayne Schiesses—the one who is a legal-writing teacher—to edit the manuscript. Thus, the sentence doesn’t really make sense and should be punctuated like this: • The dean asked Wayne Schiess, the legal-writing teacher, to edit the manuscript. That example is a nonrestrictive appositive. Nonrestrictive (also called “nonessential”) appositives present what might be considered additional information, offered as extra or “by the way.” You’d still have a sensible sentence without the appositive. Returning to our first example: • The defendant, Robin Lang, did not hire a lawyer. • The defendant [, whose name is Robin Lang, by the way,] did not hire a lawyer. • The defendant did not hire a lawyer. Besides a pair of commas, you have other punctuation options for nonrestrictive appositives. If the restating phrase comes at the end of the sentence, use a comma and a period: • The party who did not hire a lawyer was the defendant, Robin Lang.
Properly punctuating appositives is a fundamental and basic skill in legal writing. a common-law doctrine may apply even in the absence of a court order.
And you may set off appositives with a pair of parentheses, a pair of dashes, or a dash and a period: • The defendant (Robin Lang) did not hire a lawyer. • The defendant—Robin Lang— did not hire a lawyer. • The party who did not hire a lawyer was the defendant— Robin Lang.
The first example needs a comma after Lang; the second needs one after doctrine. The differences between restrictive and nonrestrictive appositives come up occasionally in legal writing. If there is only one party on a particular side (one buyer, one defendant, one appellee), then the appositive is likely to be nonrestrictive: • The buyer, National Insurance, retained its trial counsel to handle the transaction.
The most common mistake I see in using nonrestrictive appositives is failing to include the second comma: • Wrong: The defendant, Robin Lang did not hire a lawyer. • Wrong: Equitable adoption,
But if there are multiple parties on one side, a restrictive appositive may be appropriate (depending on the context). • The respondent Taylor Mura refused to cooperate with the respondent Media Group, LLC.
And of course, in legal writing, we sometimes omit the article the before party appellations: • Respondent Taylor Mura refused to cooperate with respondent Media Group, LLC. Properly punctuating appositives is a fundamental and basic skill in legal writing. It’s LAWYER someAUSTIN L AL thing careful writers doAwell.
JULY/AUGUST 2019 | AUSTINLAWYER
The “Mentoring A Student” Program Presented by the Robert W. Calvert Inn of Court
he Robert W. Calvert Inn of Court in Austin continues its commitment to the “Mentoring A Student” (MAS) program at Travis High School. Seventy-seven percent of Travis High School students are from low-income families, and 96 percent are minorities. Founded by Retired Judge Orlinda Naranjo, MAS engages Inn members with students in the school’s criminal justice class. MAS participants are interested in a wide variety of careers in the justice system, ranging from law enforcement to attorneys and judges. Inn members meet monthly with the class. This year, the class discussed voting rights, bias, immigration, and other skills. At least one student was able to use these new skills at home. She wrote, “Thank you for all the time you have spent with us, and I want to thank you for that little blue book. I have used it to
ABOVE LEFT: Proud scholarship winners. ABOVE RIGHT: Volunteer attorneys help student lawyers prepare for trial.
teach my mom legal concepts she didn’t know.” The year culminated in a dating violence mock trial held at the Gardner Betts Juvenile Justice Center. Travis County Justice of the Peace Raul Gonzales presided, with middle school students serving as jurors. With attorney coaches, student lawyers presented their cases, examined witnesses, made objections, and handled evidence. A student wrote, “Thank you for allowing
“You all have inspired me to continue my path in law.” —MAS Program Participant me into your court room and taking the time to share your knowledge with me. I have not been able to be around many lawyers. So your presence meant more to me than you know. You all have inspired me to continue my path in law.” The MAS program celebrated
its sixth year in 2019. Each year, Inn members have funded scholarships for seniors in the MAS class. This year, the Inn raised a record $3,000, which funded three $1,000 scholarships for students. Each recipient will be the first person in her family to AUSTIN LAWYER AL AL attend college.
Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton
AUSTINLAWYER | JULY/AUGUST 2019
THIRD COURT OF APPEALS CIVIL UPDATE
The following are summaries of selected civil opinions issued by the Third Court of Appeals during May 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 3, 2019.
FAMILY LAW: Court affirms constructive fraud finding for wasting community estate. Mason v. Mason, No. 03-1700546-CV (Tex. App.—Austin May 3, 2019, no pet. h.) (mem. op.). Wife alleged constructive fraud and waste of community assets after discovering husband spent over $750,000 at strip clubs and gambling during the marriage. Husband’s LLC paid the bulk of these expenses. The trial court treated the expenses as distributions from the LLC and reconstituted the community estate by $750,000. The court of appeals observed that an LLC’s property is neither community nor separate, but that distributions from an LLC are community even when the membership interest in the company is one spouse’s separate property. That husband paid the expenses with an LLC credit card did not make them legitimate business expenses. The court held that the trial court did not abuse its discretion in finding constructive fraud and
reconstituting the community estate. The court affirmed. TRIAL PROCEDURE: Court reverses on failure to submit an affirmative defense question to jury. Neal v. Guidry, No. 03-17-00525CV (Tex. App.—Austin May 15, 2019, no pet. h.) (mem. op.). At the informal charge conference in this breach-of-contract case, Neal tendered a fraud-in-inducement question. The court denied the question and ordered that formal charge objections would be made after the jury began deliberating. At the formal charge conference, Neal again tendered the fraud-in-inducement question, which the court denied. The jury awarded Guidry $50,000. On appeal, Guidry argued that Neal failed to preserve the charge error. The court of appeals noted that a party must timely make the trial court aware of the complaint and obtain a ruling. According to the court, charge error preservation should take a common-sense approach. The court held that a party compelled by a trial court to make charge objections after the charge is read to the jury does not waive objections. The court reversed and remanded for a new trial. ARBITRATION: Court enforces arbitration clause against non-signatory. Toll Dallas Tx, LLC v. Dusing,
No. 03-18-00099-CV (Tex. App.— Austin May 16, 2019, no pet. h.) (mem. op.). Dusing, the subsequent purchaser of a home, sued the builder for negligence and DTPA violations for water damage. Builder’s original motion to compel arbitration was denied. Dusing later added another defendant, Toll Dallas. Toll Dallas sought to compel arbitration after discovering that the original homeowner had assigned Dusing the warranty and that Dusing had made a claim under the warranty. The trial court denied the motion. The court of appeals concluded that Dusing, although a nonparty to the arbitration agreement, could be compelled to arbitrate under the doctrine of equitable estoppel for obtaining direct benefits from the contract. Dusing made claims under the warranty and obtained repairs. Thus, Dusing was bound by the contract’s arbitration clause. The court reversed and remanded.
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.
tending that his statements were protected by absolute immunity. The trial court granted the motion and awarded attorney’s fees. The court of appeals noted that Occupations Code § 160.010(e) ADMINISTRATIVE LAW: provides that an expert for the Court upholds Medical Board’s board is immune from suit for expert’s immunity from liability. his recommendations or findings if they are made without fraud Zawislak v. Moskow, No. 03-18or malice. Zawislak raised for 00280-CV (Tex. App.—Austin May the first time on appeal that Mos22, 2019, no pet. h.) (mem. op.). kow’s statements were frauduThe medical board disciplined lent. The court’s review of a Rule Zawislak, using Moskow as its 91a dismissal, however, is limited expert. Zawislak sued Moskow to the live pleadings and exhibits. for negligence for Moskow’s Thus, on the pleadings, Moskow statements at the disciplinary was immune from suit. The court proceeding. Moskow sought AUSTIN LAWYER AL AL affirmed. dismissal under Rule 91a, con-
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THIRD COURT OF APPEALS CRIMINAL UPDATE trial, a victim services counselor for the Austin Police Department testified regarding the “cycle of violence” in abusive relationships and the tactics that abusers use to control their victims, which the counselor termed “the power and control wheel.” Runels objected to the counselor’s qualifications and to the reliability and relevance of her testimony. The trial court overruled the objections, and the appellate court affirmed. The court explained that the counselor had extensive experience with domestic-violence cases, that her testimony was based on “concepts” and studies that were “developed decades ago,” and that her testimony would aid the jury in understanding the behavior of domestic-violence victims.
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.
The following are summaries of selected criminal opinions issued by the Third Court of Appeals during December 2018. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 3, 2019.
DISTINCTION BETWEEN POLICE DETENTIONS AND CONSENSUAL ENCOUNTERS: Police-citizen encounter was a consensual encounter, not a detention. Wright v. State, No. 03-17-00158CR (Tex. App.—Austin Dec. 18, 2018, no pet.) (mem. op., not designated for publication). The defendant was convicted of forgery based on evidence that was discovered in her car following police questioning. Wright sought to suppress the evidence, asserting that she had been unlawfully detained by the officers. The trial court denied the motion to suppress, and the appellate court affirmed. The court focused its analysis on the circumstances of the interaction
EXPERT TESTIMONY ON DOMESTIC VIOLENCE: Trial court did not abuse its discretion by admitting expert testimony regarding “the dynamics of domestic violence.” Runels v. State, No. 03-1800036-CR (Tex. App.—Austin Dec. 6, 2018, pet. ref’d) (mem. op., not designated for publication). Runels was charged with assaulting his girlfriend. During
between Wright and the officers. Wright had pulled her vehicle into a hotel parking lot that was being monitored by police officers for suspected narcotics activity. Two officers had approached Wright’s car on foot, one officer walking behind the other, and one had moved to the driver’s side to interact with Wright after she stopped the car. They proceeded to question her as to “who she was there to see and what she was doing there.” Although the officers had flashlights, they used the flashlights only “for illumination purposes” and did not shine the lights directly at or into Wright’s face. Moreover, there was no evidence that either officer had used any type of “authoritative signal, vocal tone, or gesture” when speaking with Wright. Also, the officers had approached Wright’s vehicle from behind, and there was nothing in the record to suggest that the officers had restricted her “forward movement.” Finally, the manner in which the officers questioned Wright did not implicate her Fourth Amendment rights, as they sought “simply to ascertain her reason for being at the hotel and to determine if she was associated with the target room they were monitoring.” In sum, the record supported the trial court’s finding that the initial interaction between Wright and the officers was a consensual encounter. LESSER-INCLUDED OFFENSES: Theft of a firearm was not, in this case, a lesser-in-
cluded offense of burglary. DeLeon v. State, No. 03-18-00268CR (Tex. App.—Austin Dec. 28, 2018, pet. ref’d) (op., designated for publication). DeLeon was charged with burglary of a habitation. Near the end of trial, the State requested the inclusion of an instruction allowing the jury to find DeLeon guilty of the lesser-included offense of theft of a firearm. The trial court included the instruction over DeLeon’s objection. The jury found DeLeon not guilty of burglary but guilty of theft of a firearm. The appellate court reversed and rendered a judgment of acquittal. The court concluded that “[b]ecause the value or nature of the stolen property is an essential element of the offense of theft, an indictment that does not allege the value or nature of the stolen property is substantively defective as to a charge of theft, even if the indictment is not defective as to a greater offense, such as burglary.” In this case, the indictment failed to allege that the stolen property was a firearm. Thus, theft of a firearm was not a lesser-included offense of burglary. “Importantly,” the court noted, “we do not hold today that theft may never be a lesser-included offense of burglary, only that it is not a lesser-included offense in this case because the burglary indictment did not include all the elements of theft or facts from which LAWYER all those elements could be AUSTIN deduced.” AL AL
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Hon. Lee Yeakel Inn of Court Presents Successful CLE Programs Intellectual Property Inn Puts on Presentations for Members
Cole relayed his experience litigating a contract dispute involving underlying copyrights in musical works between Quincy Jones and the estate of Michael Jackson (Quincy Jones v. MJJP, Inc.). The program concluded with Master of the Bench Karl Bayer moderating a panel comprised of the presenters. The panel talked about various copyright issues and also answered a number of questions from the audience. Another team (pictured) put on a program for the February meeting, called, “Highway to the Danger Zone: A Romantic Comedy of Love and Ethics.” The program included four ethics-based legal presentations paired with four vignettes inspired by romantic comedies, depicting the ethical issues detailed in the legal presentations—all inspired by the movie “Top Gun.” Topping it all off was a live musical performance. Specific issues discussed included the distinction between federal
he Honorable Lee Yeakel IP Inn of Court held its fourth and fifth CLE-approved meetings on January 17 and February 21, respectively, at The Headliner’s Club in Austin. The program for the January meeting included presentations on music licensing and copyright issues presented by student member Kyle Bailey, Melanie McCool of Mood Media, Wesley Lewis of Haynes and Boone, and Scott Cole of McKool Smith. Bailey discussed some basic concepts of copyright law and gave an overview of the Music Modernization Act (“MMA”). McCool shared her experience with lobbying efforts while Congress was considering the MMA, including issues that led to the MMA and the changes it brought about. Lewis presented the standard for determining when a copyright in a musical work has been infringed—including a discussion of two cases, Williams v. Gaye and Skidmore v. Led Zeppelin.
(front row, from left): Kat Li, Sheila Kadura, Judge Lee Yeakel, Bill Schuurman, Jason Boulette, Ken Prol, David Weaver, Beth Ozmun, Michele Connors, Sarah Holland, Katie Carmona and Nick Schuneman on guitar. (back row, from left): Eman Sojoodi, Trey Hebert, Jerry Suva, Chad Anson, and guest drummer, Travis Sparks
and state approaches to the rules of professional behavior, the obligation of confidentiality, conflicts of interest, ex parte communications, the duty of candor, the duty to report misconduct, the challenge presented by alcohol abuse within the profession, and the features of approved peer-assistance programs that make them uniquely effective. The overarch-
ing message of the presentation was to remind attorneys that the rules of professional conduct are a starting point for ethical behavior, not an ending point, and that an attorney’s conscience may well demand more than the rules. Special thanks to Veritext for videography services and Alice in Pearls forAUSTIN assistance with the live LAWYER musical performance. AL AL
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FEDERAL CRIMINAL COURT NEWS
Three Strikes, or One Really Bad Strike, and You’re Out (of Society) BY DAN DWORIN
his column has discussed federal sentencing, particularly the recent reforms codified in the First Chance Act of 2019,1 particularly the curtailment of some mandatory minimum sentences for drug offenders. And although the Texas Legislature has recently increased funding for community supervision in an effort to reduce the prison population, Texas state sentencing law continues to require mandatory minimum prison sentences for a fairly wide variety of cases. The most commonly used enhancement is the “three strikes” provision, which requires a mandatory minimum sentence of 25 years for a defendant convicted of a third-degree or higher felony who has previously been convicted of two felonies in
Former District Judge
Unless and until the Texas Legislature eliminates long prison sentences for non-violent offenders on first-time drug offenses, prosecutorial discretion will still determine, in large part, who spends significant time in prison. succession and sentenced to prison twice.2 As in most mandatory minimum scenarios, this provides significant leverage to a prosecutor who could, as part of a plea agreement, decide to waive the enhancement. Although the defendant’s criminal history would ordinarily be deemed inadmissible at trial, the decision to have a trial, knowing that the potential punishment could be far more than what is offered in a plea
agreement, would persuade all but the most adamant defendants to waive their right to a trial. There are also mandatory minimum sentences for certain offenses involving sexual abuse or trafficking of children,3 offenses for which little jury sympathy would be expected for a convicted defendant, for obvious reasons. Again, a prosecutor could agree to allow the defendant to plead guilty to a lesser offense to avoid the mandatory minimum as part of a negotiated resolution. Sentencing reformers probably weren’t thinking about repeat offenders and those convicted of continuous sexual abuse against children (repeated commissions of the same offense in a 12-month period).4 However, not all mandatory minimum sentences under current Texas law require repeated commission of crime or harm to a specific victim. For example, a non-violent drug offender who possesses with intent to distribute 400 grams or more of a controlled substance such as cocaine, methamphetamine, or heroin faces a mandatory minimum term of 15 years.5 Even more surprising, perhaps, is the 15-year mandatory minimum sentence for possession of more than 4,000 “abuse units” of the hallucinogen LSD.6 Although 4,000 “abuse units” sounds like a mountain of “acid,” if the drug is in liquid form (as it often is before being placed on some kind of edible medium), an “abuse unit’ is defined as 40 micrograms.7 A microgram is
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.
1 millionth of a gram. Thus, a nearly undetectable amount of liquid LSD can result in a severe prison sentence. Long prison sentences for non-violent offenders seem to have fallen out of fashion somewhat, according to the popular media. But unless and until the Texas Legislature eliminates them for first-time drug offenses, prosecutorial discretion will still determine, in large part, who spends significant time in prison for offenses AUSTIN LAWYER AL AL not involving acts of violence. Footnotes 1. Austin Lawyer, February and March 2019 issues. 2. Texas Penal Code § 12.42(d). 3. Texas Penal Code § 21.02(h); § 20A.03(e). 4. For example, a defendant convicted of an offense involving sexual abuse of a child who has previously been convicted or placed on deferred adjudication community supervision for a similar offense faces a mandatory life sentence. Texas Penal Code § 12.32(c). 5. Texas Health & Safety Code § 481.112(f). 6. Id. § 481.1121(b)(4). 7. Id. § 481.002(50)(B).
JULY/AUGUST 2019 | AUSTINLAWYER
American Inns of Court and American Board of Trial Advocates Hold Joint Trial Academy
he American Inns of Court and American Board of Trial Advocates (ABOTA) held their joint Trial Academy at the UT School of Law in Austin over two consecutive weekends in late May and early June. This program is designed to give Inn of Court members the opportunity to learn trial strategies and techniques from experienced ABOTA members. Federal Judge Lee Yeakel delivered the opening remarks, and touted the benefits of the program and the skills the students would learn. During the first weekend, students received instruction from the ABOTA member faculty on each aspect of trial. They were then able to practice their skills in everything from opening statements to closing arguments. The performances were videotaped, giving students the opportunity to review their performances
Participants and faculty of the first Trial Academy organized by the Austin Inns of Court and Austin chapter of ABOTA.
while receiving a critique from a faculty member. The critique allowed students the opportunity to adjust their performances for the mock trial held the following week. In the second weekend, students participated in a mock trial. This allowed them to put the skills they learned, and the feedback they received, to good use. When the trial concluded, students viewed the jury deliber-
ations live, getting an inside look at the jury box and how their skills affected the outcome of the case. This two-weekend program allowed the students to hear feedback not once, but twice, from leading trial attorneys. The feedback from the students was clear, with one student calling the program, “the first trial training I have ever had.” The program gives attorneys with limited trial
experience an opportunity to learn from premier trial lawyers. The Trial Academy is available to any Inn of Court or ABOTA chapter and is designed to be a collaborative effort between these two organizations. The materials can be found on both the national AmericanAUSTIN Inns of Court LAWYER and national ABOTA websites. AL AL
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Grant Recipients and Award Winners Honored by Travis County Women Lawyers’ Association and Foundation
n May 17, 2019, the Travis County Women Lawyers’ Association/Travis County Women Lawyers’ Foundation (TCWLA/TCWLF) Annual Grants and Awards Luncheon was held at the Fairmont Hotel. TCWLF awarded $50,000 in grants to local nonprofits providing direct legal services to women and children. The 2019 grant recipients were: American Gateways; Asian Family Support Services of Austin; the Austin Bar’s CANLAW Clinic; Catholic Charities of Central Texas; Center for Child Protection; Court Appointed Special Advocates (CASA) of Travis County; Jane’s Due Process; Texas Fair Defense Project; Texas Rio Grande Legal Aid, Inc.; and Volunteer Legal Services of Central Texas. Judge Elsa Alcala, formerly of the Texas Court of Criminal Appeals, gave the keynote address,
in which she told of the importance of speaking up for what is right. Judge Alcala was a frequent dissenter on the Court, questioning whether the criminal justice system was functioning properly, in particular with regard to the imposition of the death penalty on the intellectually disabled. Judge Alcala’s concerns were later validated by the United States Supreme Court in its decision in Moore v. Texas. Adela Uchida of KEYE News spoke of her experience as an advocate for immigrants who escaped the civil war in Syria in search of a better life in Austin. Her advocacy allowed a family to have continuity in housing and schools despite the bureaucracy’s attempt to uproot them from their new home. The following attorney awards were given to recognize achievements of women attorneys in the community: • Public Interest: Beth Stevens,
Texas Civil Rights Project; • Government Service: Leela Fireside, City of Austin; • Pro Bono: Susan Allison Kidwell, Locke Lord; • Contribution to Minority Community: Daniella Lyttle, (from left) TCWLA President Tracy McCreight, keynote speaker The Lyttle Law Judge Elsa Alcala, guest speaker Adela Uchida, TCWLF Chair Firm; Jessica Mangrum. • Criminal Justice: Darla D. Davis, Court of Texas; and Attorney at Law; • Outstanding Firm: The Travis • Corporate/Transactional: Erin County Attorney’s Office. Fonté, Hunton Andrews Kurth; TCWLA/TCWLF would like • Litigation/Appellate: Amanda to thank all of the sponsors Taylor, Butler Snow; who made the annual luncheon • Advancement of Women’s possible. For more information Interests: Jessie Neufeld, Farm about the Travis County Women Credit Bank of Texas; Lawyers’ Association orLAWYER FoundaAUSTIN • Outstanding Achievement: AL AL tion, please visit tcwla.org. Justice Eva Guzman, Supreme
JULY/AUGUST 2019 | AUSTINLAWYER
AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW
AYLA Q & A with Sandy Bayne involved with AYLA?
YLA welcomes Sandy Bayne as president of the organization for the 2019-2020 bar year. AYLA: Let’s start with everyone’s favorite question: Would you tell us a little about yourself? BAYNE: I’m Persian-American, born and raised in Houston. I went to Bryn Mawr College, an all-women’s liberal arts school outside of Philadelphia, spending my junior year in Madrid, Spain. I returned to Texas for law school, and received an LLM in Health Law in 2005. I have worked in almost every sector of health care, from representing physicians in medical malpractice cases and in front of the Medical Board, working in-house for a Fortune 500 managed-care company, to in-house at Seton Family of Hospitals. I currently have a solo practice where I focus on helping clients navigate through health insurance denials and disputes, among other health care matters. AYLA: What are some of your Austin-area favorites? BAYNE: Running around or rowing on Town Lake, Love Cycling, Pool Burger, Deep Eddy Cabaret, and watching independent and foreign films at the Violet Crown Theater. AYLA: Why did you first get 24
AUSTINLAWYER | JULY/AUGUST 2019
BAYNE: I was working as in-house counsel for Seton Hospitals and I did not have much interaction with other attorneys outside of Seton’s legal department. I wanted to venture out and meet more attorneys in Austin. I had the privilege and opportunity to join the Austin Bar/ AYLA Leadership Academy in 2013, led by Judge Karin Crump and David Courreges, and it paid off! I have learned so much from my AYLA friends and colleagues and have made long-lasting and valuable friendships. AYLA: What are your goals for AYLA this year? BAYNE: I want to energize our current members and get more eligible members involved with AYLA and our programs. I hope to see more lawyers join AYLA and bring fresh ideas to our organization. I also want to look at the growing needs in our community and refocus who we can best benefit through our fundraisers and our monthly Day of Service. AYLA: What do you think are the biggest challenges facing today’s young lawyers in Austin? BAYNE: Getting their hands dirty with real experience, be it leading a mediation, face-time with clients, or getting into the courtroom. I recommend volunteering with VLS or serving as an ad litem to help those in need while getting hands-on experience. AYLA: If you could impart one piece of wisdom on the firstyear lawyer and make it stick, what would it be? BAYNE: Find a mentor who you respect and reach out to them for coffee or lunch and keep that relationship going. I have had many
I hope to see more lawyers join AYLA and bring fresh ideas to our organization. I also want to look at the growing needs in our community and refocus who we can best benefit through our fundraisers. mentors who have been extremely generous with their time and counsel. I am so grateful that they have all become very close friends (you know who you are!). You can learn so much—not only about the practice of law, but lifestyle tips and intricacies that you don’t learn in law school. So send out that email to the speaker who inspired you at the last CLE! AYLA: What has been your most rewarding AYLA experience so far? BAYNE: Easy! Getting to know all of the other great members.
I have met so many amazing friends. Chairing AYLA’s Runway for Justice committee for three years has also been rewarding. It’s great to see so many busy attorneys and judges celebrate and kick back while cheering on lawyers who are modeling (clearly outside their comfort zones) for such a good cause. AYLA: What is an interesting fact about you that people probably don’t know? BAYNE: I learned to drive a stick shift from Madrid, Spain toLAWYER LisAUSTIN AL AL bon, Portugal, while en route!
CAPPS LAW FIRM, PLLC
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Member Spotlight: David Xu AYLA: Tell us a little bit about yourself and your law practice. XU: I am a born-and-raised Texan currently working as an attorney in the intellectual property and technology group of DLA Piper, practicing mostly patent litigation. My work usually takes place in venues across the nation including federal district courts, the International Trade Court, and the Patent Trial and Appeal Board. I utilize my technical background to both defend our clients from asserted patents as well as the assertion of their own IP. AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far? XU: I first got involved with AYLA two years ago when I came in as the Austin Asian American Bar Association liaison to the
AYLA Board of Directors. I’ve greatly enjoyed all of my AYLA experiences, from the pro bono opportunities to the fun-filled nights of Runway for Justice. To toot my own horn a bit, my best experience has been organizing and putting on the Diversity Bar Mixers for the last two years. Getting all of the local affinity bars together for a night of socializing and seeing new relationships develop was extremely rewarding. AYLA: What was your childhood dream job? XU: From a young age, I always wanted to be a doctor so I could help others. The plan changed course a bit during undergrad when I realized how much more school that path required. Thankfully, my law career ended up satisfying the same childhood desire to assist those in need.
AYLA: What’s your favorite moment of your career so far? XU: Definitely when I am able to work directly with inventors to draft and obtain a patent on their work. As a technical geek, I love the experience of just spending time getting into the nitty-gritty details of an inventor’s latest creation and seeing their passion be validated. AYLA: What are some of the things you enjoy most about living in Austin? XU: The food scene in Austin is great, and I’ve been slowly working my way through all of the best spots in my ten years here. There’s always something cool going on, whether it be SXSW, ACL, or a new art installation.
XU: Meet and stay in touch with as many other attorneys as you can! The practice of law is so much more diverse and varied than many young lawyers know. You never know when a chance meeting or contact will end up influencing the type of work you AUSTIN LAWYER AL AL do for the rest of your career.
AYLA: What’s your best piece of advice for fellow young attorneys?
AYLA is Here to Help
s your practice suffering because of a personal crisis? Are you enduring tough times but don’t know where to turn? The Personal Crisis Assistance Program (PCAP) is here to help in your time of need. PCAP was created in1996 to support Austin-area attorneys who face an immediate need for temporary financial or practice assistance because of a personal crisis. The objective of the program, funded by the Austin Young Lawyers Association Foundation, is to serve as a protection for lawyers and their clients when personal emergencies harm a lawyer’s practice. PCAP is available to attorneys who work or reside in Travis County and who are eligible for regular membership in AYLA. PCAP includes two levels of
short-term assistance for lawyers in crisis: FINANCIAL PCAP provides limited grant funds of up to $1,500 to assist an attorney who is unable to fulfill certain practice-related financial obligations because of a personal crisis.
You have worked hard to build your career. PCAP is here to help you get back on your feet.
PRACTICE-RELATED Attorney volunteers agree to handle professional matters for the affected lawyer during the crisis.
To apply confidentially for financial or practice-related assistance, please contact Debbie Kelly at 512.472.0279, x105 or at firstname.lastname@example.org. Regardless of how overwhelming the problem may seem, help is available. You have worked hard to build your career. PCAP is here to help AUSTIN LAWYER L AL you get back on yourAfeet.
UPCOMING EVENTS THURSDAY, AUGUST 22 AYLA Bar Year Kick-Off Party Hilgers House, 712 W. 16th St. 5:30 – 7:30 p.m.
JULY/AUGUST 2019 | AUSTINLAWYER
An Eminent Domain Primer BY SUE AYERS and industries should possess the power to condemn because their projects fulfill a public necessity.
The condemning authority must attempt to purchase the property voluntarily.
Sue Ayers is a trial lawyer with Jackson Walker. Much of her practice involves the representation of both plaintiffs and defendants in condemnation cases.
he recent legislative session and proliferation of public works projects have caused quite a bit of reporting on the subject of eminent domain. While a condemnation case is initiated with the filing of a petition in the courts of the county where the property is located, the usual processes for civil litigation do not initially apply. The exercise of the power of eminent domain is governed by Chapter 21 of the Texas Property Code. This is a summary of some of the fundamental steps involved in a condemnation case.
How can private entities have the power to condemn? This power resides in the sovereign—the State of Texas. But the State of Texas has never constructed and owned all of the critical public infrastructure required by modern civil society. For over 100 years, the Texas Legislature has delegated the power of eminent domain to both public and private entities that construct our power lines, pipelines, highways, and railroads. The Legislature decides, as a matter of public policy, which types of entities 26
AUSTINLAWYER | JULY/AUGUST 2019
There has always been a legal requirement that the condemnor attempt to purchase the required property rights from the landowner voluntarily. In 2011, the Legislature added the definition for a “bona fide offer” to the Property Code. It has several components: • An initial offer in writing; and • A final offer in writing—made 30 or more days after the initial offer—that is at least equal to the amount of a written appraisal by a certified appraiser. The final offer must include: • The appraisal; • The instrument conveying the property rights being sought; and • The Texas Landowner Bill of Rights. The landowner must have at least 14 days to consider the final offer before a petition is filed.1
The filing of the petition invokes the court’s administrative jurisdiction. Chapter 21 contains a number of specific requirements for the contents of a petition. For example, the petition must state that the condemnor made a bona fide offer as defined by Chapter 21.2 The petition is filed in the County Court at Law or District Court of the county where the property is located.3 Upon the filing of a petition, the court “shall appoint three disinterested real property owners who reside in the county as special commissioners.”4 If either party exercises the right to strike one commissioner, the court shall appoint a replacement.5 No citation is prepared or served; the petition is delivered to the property owner by certified mail.6 No answer is required and
a default cannot be taken. While a defendant can request some limited information regarding his property at this stage of the case, discovery under the Rules of Civil Procedure is not permitted.7 Upon accepting the appointment and taking an oath, the special commissioners “shall promptly schedule a hearing at the earliest practical time” in order to hear evidence and enter an award of damages.8 The parties are entitled to only 20 days’ notice of the special commissioners’ hearing.9 The notice of hearing can be served on the defendant, or his or her agent or attorney; proof of service should be filed before the hearing date.10 Following the special commissioners’ hearing, and filing of the award with the court, the condemnor may take possession of the property and begin construction if it: (1) deposits the amount of the award in the registry of the court; (2) deposits a surety bond in the amount of the award to secure any additional damages; and (3) executes a bond, approved by the court, conditioned to secure the payment of costs that may be awarded to the landowner on appeal.11
After the hearing, the parties may accept the award or file objections—and litigate. After the special commissioners have issued their award and it has been filed with the court, the parties can either acquiesce or
can file objections. If no one files objections, the court will adopt the award as its judgment.12 The court’s actions are purely ministerial and it has no jurisdiction to interfere with the special commissioners or their hearing, nor to enter a judgment that alters the award in any way. The deadline for filing objections is the first Monday following the 20th day after the award has been filed with the court.13 If one or both parties object to the award, the court then obtains subject matter jurisdiction and the administrative proceeding becomes a judicial proceeding.14 The court will “try the case in the same manner as other civil causes.”15 Although the condemning authority is the plaintiff in this case, the burden of proof as to value of the condemned property is on the AUSTIN LAWYER AL 16 AL landowner. Footnotes 1. Tex. Prop. Code § 21.0113. 2. Id. § 21.012. 3. Id. § 21.013. 4. Id. § 21.014. 5. Id. § 21.014(a). 6. Id. § 21.012(c). 7. Id. § 21.025. 8. Id. § 21.015. 9. Id. § 21.016(b). 10. Id. § 21.016(c). 11. Id. § 21.021. 12. Id. § 21.061. 13. Id. § 21.018. 14. Id. § 21.018(b); Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 295 (Tex. App.—Fort Worth 2004, pet. dism’d). 15. Tex. Prop. Code § 21.018(b). 16. McDonald v. Dallas Cty. Aug. 16, 2001, No. 05-98-01500-CV, 2001 Tex. App. Lexis 5520 (Tex. App.—Dallas, Aug. 16, 2001 no pet.) (not designated for publication).
Senior District Judge
DONATE TODAY HELP THE BAR REACH ITS $50,000 GOAL FOR THE LLOYD LOCHRIDGE CONFERENCE ROOM
2019 OUR HOME
ON JUDGES HILL
Help us honor Mr. Lochridge by making a contribution towards the Lloyd Lochridge Conference Room at Hilgers House.
Donate at ourhomeonjudgeshill.com. To ensure your donation is credited towards the Lochridge Conference Room, enter LOCHRIDGE in the field that says, “Earmark this donation for a specific named space in honor of:” Or, mail a check, payable to the Austin Bar Foundation with “Lochridge” in the memo line, to the attention of Nancy Gray, 816 Congress Ave., Suite 700, Austin, TX 78701.
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JULY/AUGUST 2019 | AUSTINLAWYER
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