austinbar.org FEBRUARY 2025 | VOLUME 34, NUMBER 1
Harnessing Advanced Medical Insights to Strengthen Traumatic Brain Injury Cases Arielle Allen, LOAR PLLC
T
raumatic brain injuries (TBIs) are among the most complex and impactful injuries encountered in injury cases. These injuries often lack visible symptoms, yet profoundly affect a person’s quality of life. Incorporating advanced medical insights from biomechanics, vestibular science, neurovisual medicine, and subconcussive injury research into legal strategies can provide attorneys with compelling evidence to prove causation, highlight injury severity, and secure appropriate compensation for their clients. The Science of Biomechanics: Linking Accidents to Brain Injuries Biomechanics provides critical insights into how physical forces from an accident lead to brain injuries. In TBI cases, understanding
these mechanisms is essential for connecting the injury to the event: Rotational Forces and Axonal Damage: Research shows that rotational accelerations—often more damaging than linear forces—are the primary cause of diffuse axonal injuries (DAIs). These injuries occur when nerve fibers stretch or tear due to the brain’s movement within the skull, a common scenario in motor vehicle accidents and falls. Subconcussive Impacts: Even impacts that do not cause fullblown TBIs can result in subtle but lasting brain injuries. Known as subconcussive events, these injuries often go unrecognized but contribute to cumulative neurological deficits over time.1 Quantifying Trauma: Using biomechanical principles such as Newton’s Second Law (Force = Mass × Acceleration) and delta velocity (ΔV), attorneys can demonstrate how the forces involved in an accident were sufficient to cause brain injury.2 By leveraging biomechanical evidence, attorneys can effectively address defense arguments that downplay the severity of the impact.
Vestibular Science: The Role of Balance and Dizziness Dizziness and balance issues are among the most common yet underdiagnosed consequences of TBIs. These symptoms, often rooted in vestibular dysfunction, significantly affect daily life and recovery. Peripheral Vestibular Disorders: Injuries to the inner ear structures, such as labyrinthine concussion or benign paroxysmal positional vertigo (BPPV), can cause persistent dizziness and imbalance. Central Vestibular Dysfunction: Damage to brainstem or cerebellar pathways due to diffuse axonal injury disrupts balance and coordination.3
Proving Impairment in Court: Objective tests like caloric testing, video head impulse testing (vHIT), and vestibular-evoked myogenic potentials (VEMPs) provide quantifiable evidence of vestibular damage. Therapeutic Interventions: Vestibular rehabilitation therapy has shown significant success in treating post-concussive dizziness, underscoring the need for ongoing care and justifying claims for long-term treatment costs.4 By presenting vestibular science Brain Injury on page 7.
I love LawPay! I’m not sure why I waited so long to get it set up.
+
– Law Firm in Ohio
Member Benefit Provider
Trusted by 50,000 law firms, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. 22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours
YOUR FIRM LOGO HERE
Trust Payment IOLTA Deposit New Case Reference **** **** **** 9995
***
TOTAL: $1,500.00 POWERED BY
PAY ATTORNEY
Get started at lawpay.com/austinbar 866-730-4140 Data based on an average of firm accounts receivables increases using online billing solutions. LawPay is a registered agent of Synovous Bank, Columbus, GA., Fifth Third Bank, N.A., Cincinnati, OH, and Wells Fargo Bank, N.A., Canadian Branch, Toronto, ON, Canada.
CONTENTS
AUSTINLAWYER FEBRUARY 2025 | VOLUME 34, NUMBER 1 AL AL
INSIDE
IN EVERY ISSUE
1 Harnessing Advanced Medical Insights to Strengthen Traumatic Brain Injury Cases
8
Briefs
12
Federal Civil Court Update
14
Third Court of Appeals Civil Update
15
Third Court of Appeals Criminal Update
Leading a Legal Delegation to Ireland
16
Texas Supreme Court
26 Are You Taking Advantage of Austin Bar Member Discounts?
18
Local Jury Trial Verdicts
22 Austin Bar Members Appear Before SCOTX To Deliver Oral Arguments 24
28
Crump, Hurley Retire from District Court
30 Chief Justice Byrne Welcomes New Justices to 3rd Court of Appeals 32 Goodbye and Hello: Judges Retire, Take the Bench
CONNECTIONS ONLINE austinbar.org EMAIL billy@austinbar.org
DEPARTMENTS
MAIL Austin Bar Association 712 W. 16th Street Austin, TX 78701
6
President’s Guest Column
10
AYLA
Austin Bar app available for iPhone and Android. SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar
ONLINE austinbar.org NEWS & ANNOUNCEMENTS
UPCOMING EVENTS
Austin Bar Association Golf Tournament The Austin Bar will host its inaugural golf tournament Wednesday, April 9, 2025, with an 8 a.m. shotgun start at Lions Golf Course, 2901 Enfield Road. Please keep an eye out for additional information in the coming weeks, including registration links. Proceeds from the tournament benefit the Austin Bar Association.
Feb. 27 Solo/Small Firm CLE
12 - 1 p.m. McGinnis Lochridge 1111 W. 6th St., Bldg. B, Ste. 400
FOLLOW instagram.com/theaustinbar CONNECT https://www.linkedin.com/ company/austin-barassociation WATCH vimeo.com/austinbar
FEBRUARY 2025 | AUSTINLAWYER
3
ADDICTION & MENTAL HEALTH RESOURCES 24-Hour Suicide & Crisis Lifeline - 988 - call or text | Live chat: SuicidePreventionLifeline.org Texas Lawyers’ Assistance Program (TLAP) - 1-800-343-8527 TLAP is a 24-hour confidential crisis counseling and referral program to help lawyers, law students, and judges with substance use and mental health issues. Justice Mack Kidd Fund The Austin Bar Foundation administers the Justice Mack Kidd Fund, which can provide financial assistance to individuals seeking treatment for depression or similar illnesses. Visit austinbar.org/?pg=justice-mack-kidd-fund to learn more. Personal Crisis Assistance Program (PCAP) The Austin Young Lawyers Association Foundation provides grants and/or peer support for individuals suffering from a personal crisis. Contact Debbie Kelly: 512-472-0279 x 105 Sheeran-Crowley Trust Administered through TLAP, the trust provides financial help to Texas attorneys, judges, and law students who need treatment for substance use, depression, and other mental health issues. Visit sheerancrowley. org to learn more. Alcohol & Drug Abuse Austin Drug & Alcohol Abuse Program - 512-454-8180 Alcoholics Anonymous - 512-444-0071 Cocaine Anonymous - 512-479-9327 Narcotics Anonymous Counseling - 512-480-0004 Psychiatric Emergencies Emergency Screening in a Psychiatric Crisis 24/7 - 512-472-4357 Samaritan Center (provides professional counseling services on a sliding scale) - 512-451-7337
AUSTINLAWYER OFFICIAL PUBLICATION ALOF THE ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION
Mary-Ellen King ������������������������ President Maitreya Tomlinson ������������������ President-Elect Judge Maya Guerra Gamble �� Secretary Rob Frazer ���������������������������������� Treasurer Justice Chari Kelly �������������������� Immediate Past President
AUSTIN YOUNG LAWYERS ASSOCIATION
Emily Morris �������������������������� President Jenna Malsbary �������������������� President-Elect Gracie Wood Shepherd ������ Treasurer Lena Proft ������������������������������ Secretary Sarah Harp ���������������������������� Immediate Past President
Austin Lawyer
©2025 Austin Bar Association; Austin Young Lawyers Association
EXECUTIVE OFFICES
712 W. 16th Street Austin, TX 78701 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 DeLaine Ward....................... Executive Director Debbie Kelly.......................... Associate Executive Director Roslyn Dubberstein............. Assistant Editor Samantha McCoy................. Assistant Editor Abigail Ventress.................... Assistant Editor Billy Huntsman...................... Managing Editor 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, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 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. District Court for the Western District of Texas 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 above. For editorial guidelines, visit austinbar.org in the “About Us” tab.
4
AUSTINLAWYER | FEBRUARY 2025
PRESIDENT’S GUEST COLUMN
Q&A with Joel Bennett on Getting and Staying Sober BY VELVA PRICE, TRAVIS COUNTY DISTRICT CLERK
J
oel Bennett is a highly respected attorney who has been a legal leader in the Austin area for more than 45 years. He has served as a lieutenant in the armed forces, worked for the Travis County Attorney, been honored by the State Bar of Texas, and been appointed and served as the first judge of the Travis County Adult Drug Court, where he presided over and saved thousands of lives. He is the father of two children and has served as a mentor to many people, including attorneys who were part of the Texas Lawyers’ Assistance Program (TLAP) because he is an alcoholic in recovery. Here’s an interview we conducted with Joel. AL: What were some of the biggest challenges you faced while in the throes of your addiction? JB: Trying not to drink daily was definitely the hardest part. AL: Did anyone else in your life notice what was going on? JB: At law school, I would just drink wine, but people would notice the smell in the elevator. My mother and ex-wife both noticed and told me that I was drinking too much.
AL: At what point did you realize you needed help, and what motivated you to seek treatment? JB: I sought help because it was affecting my life, especially my marriage and my children. My wife filing for divorce was a critical reason for seeking treatment. Although it did not save my marriage, it did save my life and my relationship with my children. AL: What kind of treatment did you seek? JB: I went to in-person treatment, though not many places offered it. The first three days of sobriety were very hard and one of the most difficult times in my life. AL: What advice would you give to others currently struggling with substance abuse issues? JB: Honesty is a big part of recovery. You also need to find others who are going through the same thing as you. That’s why AA is so critical–it’s a network of support. I still go today. AL: What role, if any, does ongoing support or community play in maintaining your sobriety? JB: My addiction and recovery led me to being appointed as the first judge of drug court, where
thousands of people receive help for their addictions. People still approach me now years later about how the experience made their lives better. With the assistance of Travis County judges, we were able to build a visionary program that achieved national recognition and influence. I also was fortunate to take my personal experiences and use them to help other jurisdictions create and effectively operate drug courts. AL
Struggling? Help is a Phone Call Away Austin Drug & Alcohol Abuse Program - 512-454-8180 Alcoholics Anonymous - 512-444-0071 Cocaine Anonymous - 512-479-9327 Narcotics Anonymous Counseling - 512-480-0004 Texas Lawyers’ Assistance Program (TLAP) - 1-800-343-8527 TLAP is a 24-hour confidential crisis counseling and referral program to help lawyers, law students, and judges with substance use and mental health issues.
Chris Andre
New Vehicle Leasing / Pre-Owned Sales Domestics / Imports / Exotics
Busy Schedule? Call me. Any Make. Any Model. Email | chris@appleleasing.com
6
AUSTINLAWYER | FEBRUARY 2025
Phone | 512.653.3718
Brain Injury from page 1.
in court, attorneys can illustrate the debilitating effects of TBIs and the necessity of comprehensive medical care. NeuroVisual Medicine: Treating Visual-Vestibular Disruptions Visual symptoms are another frequent yet underappreciated consequence of TBIs. Neurovisual medicine addresses issues like binocular vision dysfunction (BVD), where the eyes fail to work together properly, causing headaches, nausea, and difficulty focusing. Key Symptoms of BVD: Headaches, dizziness, and difficulty with depth perception. Challenges with reading and visual clarity, particularly during close or far tasks.5 Microprism Lenses for Relief: Advanced treatments such as microprism lenses help realign vision and reduce symptoms. These lenses have been shown to provide up to 80 percent symptom reduction in patients with TBIs. Legal Implications: Presenting neurovisual assessments and successful treatment outcomes can strengthen arguments for the long-term impact of the injury and the necessity of ongoing care.6 Subconcussive Events: Expanding the Understanding of Injury Subconcussive events, defined as impacts that do not cause a full-blown concussion, are gaining recognition for their cumulative effect on neurological health. These events, though subtle, can
lead to significant impairments when repeated or combined with other injuries. Cumulative Effects: Research highlights that even minor, repetitive impacts can result in long-term deficits, making these events particularly relevant in cases involving athletes or multiple accidents.7 Diagnostic Challenges: Advanced imaging and biomarkers are critical for identifying these injuries, which may not be immediately apparent but still cause significant functional impairments. By incorporating evidence of subconcussive impacts, attorneys can broaden the scope of their claims to include less obvious but equally damaging injuries. Building a Strong Legal Case with Medical Insights Injury attorneys can enhance their TBI cases by applying advanced medical knowledge: Strengthening Causation: Use biomechanical evidence to demonstrate how forces from an accident caused brain injuries, addressing common defense claims of insufficient trauma. Highlighting Invisible Injuries: Incorporate vestibular and neurovisual science to substantiate claims of ongoing impairment and quality-of-life reductions. Refuting Malingering Claims: Present objective evidence from advanced testing to counter accusations of malingering or exaggeration. Proving Long-Term Impact: Emphasize the cumulative effects of subconcussive events and the necessity of ongoing therapies to improve recovery prospects.
Conclusion The integration of biomechanics, vestibular science, neurovisual medicine, and subconcussive injury research equips attorneys with powerful tools to advocate for clients with TBIs. By leveraging these disciplines, attorneys can present compelling evidence that underscores the full extent of their client’s injuries, ensuring justice and appropriate compensation for their losses. Our firm has created a guide for TBI related injuries. It can be accessed for free at: https://www. loarpllc.com/. Arielle Allen is an attorney with LOAR PLLC, a woman-owned personal injury law firm with its principal office in Austin serving clients from coast to coast. Her practice predominantly focuses on personal injury cases. Allen holds a Bachelor of Science in Psychology from the University of Maryland and a Juris Doctor from the University of Texas School of Law, where she graduated with pro bono honors. While at the University of Texas, Arielle was recognized for achieving her first legal victory as a student attorney in the Texas Law Disability Rights Clinic. Her victory provided comprehensive relief for a student with profound cognitive disabilities who was denied legally required special education services. Then, she went on to serve as attorney ad litem for children in foster care through the Texas Law Children’s Rights Clinic, as well as advocating for wrongfully convicted individuals in the Texas Law Actual Innocence Clinic. She is licensed in both Texas and Colorado. Prior to embarking on her legal journey, Arielle provided invaluable services as a behavior therapist, working with children with developmental
ENDNOTES
1 Tapia RN, Eapen BC. Rehabilitation of Persistent Symptoms After Concussion. Phys Med Rehabil Clin N Am. 2017 May; 28(2):287-299. doi: 10.1016/j.pmr.2016.12.006. PMID: 28390514. 2 Moghaddam, H. S., Rezaei, A., Ziejewski, M., & Karami, G. (2020). Computational mechanics of traumatic brain injury under impact loads. International Journal of Mechanical Engineering and Robotics Research, 9(7), 917-924. https://doi. org/10.18178/ijmerr.9.7.917-924 3 Gianoli, G. J. (2022). Post-concussive dizziness: A review and clinical approach to the patient. Frontiers in Neurology, 12, 718318. https://doi. org/10.3389/fneur.2021.718318; Doble, J. E., Feinberg, D. L., Rosner, M. S., & Rosner, A. J. (2010). Identification of binocular vision dysfunction (vertical heterophoria) in traumatic brain injury patients and effects of individualized prismatic spectacle lenses in the treatment of postconcussive symptoms: A retrospective analysis. PM&R, 2(4), 244-253. https://doi.org/10.1016/j. pmrj.2010.01.011 4 (Gianoli, 2022); (Doble et al., 2010). 5 Doble, J. E., Feinberg, D. L., Rosner, M. S., & Rosner, A. J. (2010). Identification of binocular vision dysfunction (vertical heterophoria) in traumatic brain injury patients and effects of individualized prismatic spectacle lenses in the treatment of postconcussive symptoms: A retrospective analysis. PM&R, 2(4), 244-253. https://doi.org/10.1016/j. pmrj.2010.01.011 6 (Doble et al., 2010). 7 Tapia RN, Eapen BC. Rehabilitation of Persistent Symptoms After Concussion. Phys Med Rehabil Clin N Am. 2017 May; 28(2):287-299. doi: 10.1016/j.pmr.2016.12.006. PMID: 28390514.
disabilities. AL
FEBRUARY 2025 | AUSTINLAWYER
7
BRIEFS New Members The Austin Bar welcomes the following new members: Julie Frey Adam Gurwitz Janice Jacques Thomas McDowell Allie Melson Erin Morgan Karen Muñoz Treviño Mitchell Tagliapietra
TOP (from left): Arriaga, Beaman, Dougal, George, Howry. BOTTOM (from left): Leibe, Londergan, Moore, Scott, Zoll.
Kudos Congratulations to Austin Bar Past President Amanda Arriaga, who was named the recipient of the In House Impact Award by Texas Lawyer. Amanda won this award as general counsel for Texas CASA. She has since moved into a role as general counsel for her family’s real estate firm. Congratulations to the following attorneys, who were among those named by Texas Lawyer as “Lawyer of the Year” in their respective practice fields in and around Austin: Mark T. Beaman Medical Malpractice Law –Defendants Mark is a principal at Germer, where he has practiced since 1998. He is a fellow of the American College of Trial Lawyers and a member of the American Board of Trial Advocates. He has been representing physicians in medical malpractice litigation and in cases before the Texas Medical Board for over 30 years Leonard H. Dougal Natural Resources Law Leonard is a partner in Jackson Walker’s Austin office. He represents clients in complex environmental permitting and water supply matters including hightech companies, semiconductor manufacturers, data center owners, power generation companies, 8
AUSTINLAWYER | FEBRUARY 2025
real estate developers and special utility districts. He is also active in water quality and wetlands issues where he represents energy companies, developers and agricultural operators in Clean Water Act permit and compliance matters. Tim George Oil and Gas Law Tim is a partner in McGinnis Lochridge’s Austin office. Tim practices administrative law and litigation on behalf of oil and gas owners and operators. Tim represents clients before the Railroad Commission of Texas and the Texas General Land Office. He has helped solve complex problems with leasehold permitting and production; special field rules; and rulemaking. Randy R. Howry Personal Injury Litigation –Plaintiffs Randy is a founding partner of Howry, Breen & Herman. Randy’s legal practice focuses on personal injury, products liability, catastrophic injuries, wrongful death, and commercial/business disputes. He has served on the board of directors for the State Bar of Texas, the Austin Bar Association, and the Austin Bar Foundation. Randy is also a member of the American Trial Lawyers Association, Texas Bar Foundation, Texas Trial Lawyers Association, and the Texas Center for Legal Ethics and Professionalism.
Stephanie Leibe Public Finance Law Stephanie is a partner at Norton Rose Fulbright, which she joined after serving as an assistant attorney general with the Public Finance Division of the Texas Attorney General’s Office, where she was most recently Chief of the Public Finance Division. She has experience in public finance transactions for state agencies, cities, counties, school districts, navigation districts, port authorities, economic development corporations, water districts, and water authorities. Lisa A. Londergan Mediation Lisa is a founding partner at Thompson Salinas Londergan, where she practices in all areas of family law. Her practice includes negotiating and litigating issues involving divorce, contested child custody, high net worth asset division, visitation rights, geographical restrictions, spousal and child support, prenuptial agreements, and modification and enforcement actions. She also handles matters of paternity, support, and custody of non-marital children. Steven D. Moore Litigation and Controversy Tax Steven is a partner in Jackson Walker’s Austin office, where he specializes in matters involving Texas sales tax, franchise (a.k.a. “margin”) tax, and property tax. Steve Moore’s state tax practice includes (i) Wayfair structuring,
planning, and compliance, (ii) sales tax, (iii) Texas franchise (aka “margin”) tax, (iv) property (ad valorem) tax including Chapter 312, 380, and 381 property tax abatements; (v) Chapter 313 (now expired) property tax value limitation agreements, (vi) Chapter 351 qualified hotel projects; and (vii) insurance premium tax and insurance retaliatory tax. He has industry-leading experience with the state tax issues affecting the renewable energy industry in Texas.
where trust or estate disputes have arisen. Mitchell F. Zoll Litigation–Real Estate Mitchell is the founder and principal of Zoll Law Firm, where he provides legal guidance to businesses at every stage of success–whether forming a new business, reviewing contracts or agreements, or buying or selling a business.
Jason S. Scott Litigation–Trust and Estates Jason is a partner at Osborne, Helman, Scott, Knisely & Stanton. His practice focuses on fiduciary litigation, including trust, estate, partnership, and guardianship disputes, representing parties on both sides of the docket. Scott also advises settlors, trustees, protectors, and asset holders in high-value disputes related to international trusts and asset protection structures. Additionally, Mr. Scott co-counsels with family law attorneys in divorce cases
JEFF ROSE (ret.)
•
•
512.637.0931
BOLLIER CICCONE STINSON Family Law | Construction Law | Commercial Litigation
Board Certified by the Texas Board of Legal Specialization
LESLIE J.
ANTHONY F.
SUSANNAH A.
EMILY E.
Board Certified, Family Law
Board Certified, Construction Law
Board Certified, Family Law
Board Certified, Family Law
BOLLIER
CICCONE
STINSON
LANDEROS
1101 S Capital of Texas Hwy, Bldg G, Suite 200, Austin, TX 78746 | 512.477.5796 | bclawtx.com
FEBRUARY 2025 | AUSTINLAWYER
9
AUSTIN YOUNG LAWYERS ASSOCIATION
H.E.A.R.T. Communication BY EMILY MORRIS, AYLA PRESIDENT
F
ebruary is a month when love of all kinds is on the mind – love for our sweetheart, friends, family, maybe even coworkers (but hopefully not like that). One of the primary ways we express love of any kind is through our words. When thinking about how to communicate with loved ones, there are lessons we can also extend to professional relationships. As attorneys, nearly
all of our work consists of persuasive communication. This month, let’s get back to basics and practice communicating with HEART: How will your message best be sent and in what setting? In an email, text, phone call, Facetime, working lunch, over coffee, or self-destructing letter delivered by carrier pigeon. Expectations–what do they want to hear from you? What message do you need them to understand? Articulate–say all the important parts. Don’t assume your conversation partner already knows something or picks up on an implication. Revise–I don’t know of anyone who regretted revising a text or email before hitting ‘send,’ but the opposite is certainly true! Tone–try to match the appropriate dynamic for your recipi-
ent. Word choice, tone of voice, and body language can all make a critical difference in how your message is received. These suggestions may seem obvious, but hopefully they are a good reminder for how to handle the myriad daily communications with all the people who matter in
our lives (whether loving or loveto-hate). Let’s also try to always be kind to whoever we are interacting with. We never know what the other person may be going through, and our words have the power to bring people down or lift them up. I think we could all use a bit more lifting up in 2025. AL
Calling Leaders To Serve On The AYLA Board Of Directors
A
ttorneys who wish to serve on the 2025-2026 Austin Young Lawyers Association (AYLA) Board of Directors have until March 7, 2025, to formally sign up to run. Serving as a Director on the AYLA Board is a great way to gain leadership experience, shape the local legal community, and meet other young attorneys who roam outside of the confines of your own office and legal field. To be eligible for a Board position, a candidate must be a current
AYLA member and be 40 years of age or younger as of July 1, 2025. To be placed on the ballot, submit a nomination form signed by 10 current AYLA members to Debbie Kelly at debbie@austinbar.org by March 7, 2025. Nomination forms and additional information can be found online at AYLA.org. Don’t miss this chance to get plugged into—and lead— your generation of Austin attorneys. AL
AYLA Seeking Nominations For Awards
E
ach year we present three awards for outstanding community and professional service, and mentoring. Know a deserving person in the community who should be recognized? Nominate someone today for one of our three awards: Liberty Bell (awarded to a non-lawyer), Outstanding Young Lawyer, and AYLA Mentor. Nomination forms are due Friday, March 1, and can be found online at AYLA.org. 1) The Outstanding Young Lawyer of Texas Award, which recognizes one young lawyer who has demonstrated professional proficiency, service to the profession, and service to the community. 2) The Liberty Bell Award, which recognizes one outstanding non-lawyer in Texas who has made the most selfless contribution to his or her community to strengthen the effectiveness of the American system of Justice by instilling better understanding and appreciation of the law. 3) The Outstanding Mentor Award, which recognizes one attorney who has consistently demonstrated a commitment to mentoring young lawyers in his or her legal community. AL 10
AUSTINLAWYER | FEBRUARY 2025
UPCOMING EVENTS THUR, FEB. 20 AYLA Docket Call 5:30 - 7 p.m. Location: TBD
SAT, MARCH 29 Save the Date AYLA Crawish Boil Fundraiser More information to come
AUSTIN YOUNG LAWYERS ASSOCIATION
Leadership Academy 2025 Off to a Great Start What an incredible start to Leadership Academy 2025! The #LeadershipAcademy2025 orientation on Jan. 10 was an inspiring kickoff to this year’s journey. The 2025 class heard numerous thought-provoking presentations from leaders in the Austin legal community. Some highlights: • A tour of the Texas Supreme Court, hosted by Justice Brett Busby.
• Engaging talks from Austin Bar President Mary-Ellen King and AYLA President Emily Morris. • Leadership lessons and career development advice from Justice Karin Crump and Judge Jessica Mangrum. • A special moment celebrating the investiture of Judge Sherine Thomas. And we wrapped up the day with a fantastic happy hour! AL
The Leadership Academy sits en banc in the Texas Supreme Court chamber.
Justice Brett Busby addresses the Leadership Academy members during the tour of the Texas Supreme Court.
Leadership Academy Committee Co-Chairs Alan Lin and Jackie Davis address the group..
You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP
®
Financial Professional
3305 Northland Dr., Suite 414
512-302-6051
Austin, TX 78731
kaighinjr@momentumin.com
Member: FINRA/SIPC FEBRUARY 2025 | AUSTINLAWYER
11
FEDERAL CIVIL COURT UPDATE
Jason LaFond is a board-certified appellate lawyer with significant experience in the Fifth Circuit. He is Counsel at Scott Douglass & McConnico LLP.
The following are summaries of selected civil opinions issued by the Fifth Circuit in November and December 2024. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.
> COMMERCIAL SPEECH: How to apply the Central Hudson test when an activity is legal under state law but prohibited under supreme federal law. Cocroft v. Graham, 2024 WL 4866863 (5th Cir. Nov. 22, 2024). Mississippi enacted a law authorizing the sale and use of marijuana for medical purposes under a regulatory framework administered by state agencies. The Act provides certain limited opportunities for advertising, such as listings in business directories, the establishment of websites, and sponsorships for charity events. The plaintiffs challenged Mississippi’s near-total prohibition on advertising medical marijuana on First Amendment grounds. The district court dismissed their claim, finding that commercial speech relating to marijuana transactions did not qualify for First Amendment protection since the underlying activity remained illegal under federal law. The core question before the Fifth Circuit was whether medical 12
AUSTINLAWYER | FEBRUARY 2025
marijuana advertising qualified for First Amendment protection as commercial speech. The court applied the Central Hudson test, a four-prong test established by the U.S. Supreme Court to evaluate restrictions on commercial speech. The first prong of Central Hudson requires that the commercial speech must concern “lawful activity” and must not be misleading. The Court held that the plaintiffs’ advertising did not meet this threshold because all commercial activity related to marijuana remains illegal under federal law. The court emphasized that under the Supremacy Clause, federal law takes precedence over conflicting state law. Therefore, even though Mississippi state law permits medical marijuana under certain conditions, marijuana remains illegal in Mississippi, and thus the underlying activity is not “lawful” for purposes of First Amendment protection. The plaintiffs advanced a “same-sovereign” theory, arguing that only the jurisdiction that has prohibited the underlying activity (in this case, federal authorities) could regulate related commercial speech. They asserted that because Mississippi permitted sale and use of medical marijuana under state law, it lacked authority to prohibit speech regarding its sale. The Fifth Circuit rejected this argument, reasoning that Central Hudson’s first prong is focused on the status of the underlying activity in the relevant jurisdiction, not which sovereign prohibited it. Federal law is binding on all states through the Supremacy Clause, making the relevant question whether the proposed commercial activity is illegal under federal law. PUBLIC ACCESS TO CRIMINAL PROCEEDINGS: Public’s right of access to criminal proceedings includes magistrations. Texas Trib. v. Caldwell Cnty., 2024 WL 4799169, at *4 (5th Cir. Nov. 15, 2024) Two non-profit news organizations sued Caldwell County to enjoin its practice of closing magistrations to the public. The
district court issued a preliminary injunction and the Fifth Circuit affirmed, finding plaintiffs were likely to succeed on their claims. The U.S. Supreme Court has long recognized the right of access to criminal trials as fundamental under the First Amendment. That right of access has subsequently been extended to various pretrial proceedings, such as suppression hearings and guilty plea hearings. In determining whether a particular proceeding falls under the First Amendment’s protections, courts are instructed to employ a two-factor test referred to as the “experience and logic test.” The experience prong asks whether the place and process have historically been open to the press and general public. The logic prong asks whether public access plays a significant positive role in the functioning of the particular process in question. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. Although magistrations do not have the same extensive historical record as trials, the Fifth Circuit found that there is a meaningful tradition of openness for similar pretrial proceedings, such as bail hearings. The Court drew comparisons to bail hearings, which have a tradition of openness. The Court cited historical evidence, including statutes dating back to 16th century England and commentary on early American cases that emphasized the importance of public access to bail decisions. In finding that magistrations satisfied the logic prong, the Court reasoned that public access to magistrations serves important purposes, including ensuring transparency and accountability in judicial decision-making. Magistrations are the point at which individuals are formally informed of the charges against them and may be released on bail. Public access to these proceedings can foster trust in the judicial system by allowing the public to scrutinize the fairness of decisions. INTERNET: Section-230 immunity does not apply to sex-trafficking claims because those
claims do not treat the defendant as a publisher or speaker of third-party content. A.B. v. Salesforce, Inc., 2024 WL 5163222 (5th Cir. Dec. 19, 2024). The defendant, Salesforce, is a business-software company providing cloud-based customer-relationship-management technology allowing businesses to organize their customer data on Salesforce’s servers. One of Salesforce’s clients was Backpage.com, a company that would go on to plead guilty to federal sex-trafficking charges. Plaintiffs (victims of sex trafficking) filed suit against Salesforce, alleging violations of the federal Trafficking Victims Protection Act and related Texas state laws. Plaintiffs’ theory is that Salesforce violated those laws by supplying its tools, support, and resources to Backpage, thereby knowingly facilitating sex trafficking and directly enabling Backpage to function. Salesforce argued that Section 230 of the Communications Decency Act (CDA) barred the claims, asserting that they effectively treated Salesforce as a publisher or speaker of third-party content on Backpage. The district court denied summary judgment on the 230-defense, and the Fifth Circuit affirmed on interlocutory appeal. Section 230(c)(1) of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute shields online platforms from liability for content created by third parties. Salesforce argued that because the only link between its conduct and plaintiffs’ harm was third-party speech, the plaintiffs’ claims effectively treated Salesforce as the publisher of that speech. The Fifth Circuit rejected that argument as contrary to Section 230’s plain meaning and precedent. The Court’s analysis of Section 230’s meaning focused on the phrase “treated as the publisher or speaker.” The Court
concluded that the phrase did not bar all claims in which third-party speech lies somewhere in the chain of causation. Instead, the text demands a functional, claims-analysis approach to determine whether a claim seeks to hold a defendant liable for actions quintessentially related to a publisher’s role—deciding whether to publish, withdraw, postpone or alter content. The Court therefore rejected Salesforce’s “only link” reading as akin to but-for causation. The Court explained that adopting Salesforce’s reading would cause Section 230 to encompass vastly more than claims that seek to treat a defendant as a publisher or speaker of third-party content. Turning to the plaintiffs’ claims, the Court concluded that Section 230 was no bar. Plaintiffs’ claims assert Salesforce breached statutory duties to knowingly benefit from participation in a sex-trafficking venture. Those duties do not derive from Salesforce’s status or conduct as a publisher or speaker and would not require Salesforce to exercise publication or editorial functions to avoid liability. CIVIL PROCEDURE: Verdict with inconsistent answers to written questions required new trial. Lindsley v. Omni Hotels Mgmt. Corp., 123 F.4th 433 (5th Cir. 2024). Lindsley filed suit under the Equal Pay Act (EPA) and Title VII, alleging that she had been subjected to sex-based pay discrimination at Omni. Both Title VII and the EPA prohibit pay discrimination on the basis of sex. And each establishes a burden-shifting framework. If the plaintiff shows she was paid less than men in a comparable position, the defendant may escape liability by showing that the wage differential was justified by any factor other than sex. After trial, the district court presented instructions and a verdict form to the jury for its deliberations. The verdict form consisted of a series of questions. Despite the claims’ similarity, the verdict forms for each differed.
The general instructions directed that the jury should answer damages questions only after finding Omni liable. But on the verdict form, only the EPA’s liability question included a specific instruction to stop if the answer was no. Further, the verdict form separately asked if Lindsley’s pay differential was justified by any factor other than sex only as to the EPA claim. For the Title VII claim, the liability instruction explained that it is not unlawful for an employer to “pay one employee less than another for the same or similar work for other reasons, good or bad, fair or unfair,” (i.e., for reasons other than the employee’s sex). The jury’s first verdict found that Omni had proved that any pay differential for Lindsley resulted from a factor other than sex. The jury thus held Omni not liable under the EPA and concluded that no damages should be awarded under the EPA. The jury’s verdict also answered “no” to the question on Title VII liability but nonetheless awarded $100,000 in compensatory damages and $25 million in punitive damages in the Title VII section. Finding these answers inconsistent, the district court modified the verdict form to make Title VII damages expressly conditional on liability, and ordered the jury to further deliberate. The jury then returned a verdict identical to the previous one except answering “yes” to Title VII liability. The district court entered judgment in Lindsley’s favor on the Title VII claim. Omni appealed and the Fifth Circuit vacated and ordered a new trial. The Fifth Circuit found that the jury’s answers to written questions on the second verdict remained inconsistent: While the answers to Title VII liability and damages matched, the affirmative answer to Title VII liability was irreconcilable with the jury’s finding on the EPA claim that Omni had proved that any pay differential for Lindsley resulted from a factor other than sex. The Court rejected Omni’s arguments that the district court should have entered judgment in its favor based on the jury’s an-
swers accompanying each verdict. The Court looked to Federal Rule of Civil Procedure 49, which guides treatment of verdicts. The Court categorized the verdict form as a general verdict with interrogatories—rather than special verdicts—because the jury was tasked with applying the law to the facts. This classification required the district court to follow Rule 49(b) in managing inconsistencies. Rule 49(b)(4) provides that when the interrogatory answers
are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered. Instead, the Court must either direct the jury to further deliberate or order a new trial. The Court found that in both verdicts the jury’s answers were inconsistent with each other and the general verdict. As a result, the district court had no power to enter judgment on either verdict. AL
Specialists In Professional Liability For Lawyers And Title Agents Errors & Omissions • Cyber • Crime Any Area of Practice. Claims ok. Disciplinary issues ok.
Contact us for a straightforward, no-nonsense quote! @ 727 799 4321 • Sam@attorneysfirst.com
FEBRUARY 2025 | AUSTINLAWYER
13
THIRD COURT OF APPEALS CIVIL UPDATE
Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board-certified in civil appellate law by the Texas Board of Legal Specialization and owner of Laurie Ratliff LLC.
The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2024. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of January 9, 2025.
> SUPERSEDEAS: Court affirms order increasing bond amount. New Braunfels Stewardship Props., LLC v. Circle F Invests., LP, No. 03-24-00282-CV (Tex. App.—Austin Nov. 14, 2024, no pet. h.) (mem. op.). Appellees sued appellants for fraud and tortious interference regarding a commercial lease. The jury found that appellants committed fraud. The trial court
signed a $7 million judgment and an injunction against appellants concluding that they were likely to dissipate assets to avoid satisfying the judgment. Appellant NBSP contended its net worth was $89k and filed a $45k supersedeas bond. In support of their net worth calculations, Appellants presented six different valuations for the property. The trial court rejected appellants’ evidence and found that NBSP’s net worth was over $4 million and set a $2 million bond. The court of appeals observed that as the sole judge of the witnesses’ credibility the trial court could disregard uncontradicted testimony from disinterested witnesses. The different valuations and the underlying fraud finding supported the trial court’s conclusions that appellants’ evidence was not credible. The court affirmed. FAMILY LAW: Court reverses community property finding. DeSpain v. DeSpain, No. 03-2300348-CV (Tex. App.—Austin Nov. 22, 2024, no pet. h.) (mem. op.). In a divorce, the trial court concluded that property husband acquired before marriage was community and ordered husband to pay wife $212,500 for her interest. Husband acquired the property from his parents more than 10 years before he married. The court of appeals concluded that under the inception-of-title doctrine, the property was husband’s separate property. According to the court, improvements made to separate real property, even
with community funds, remain the landowner’s separate property. The fact that the parties refinanced the property with a loan obtained during marriage did not transform the property into a community asset. Further, using community funds to pay the property’s mortgage did not transform it into community property. The court reversed and remanded the property-division portions of the decree. MANDAMUS: Court grants relief from order that severed defendant’s third-party claims. In re AJT Indus., LLC, No. 03-2400570-CV (Tex. App.—Austin Dec. 18, 2024, orig. proceeding) (mem. op.). In this construction-defect case, the trial court granted plaintiff’s request to bifurcate some of defendant/general contractor’s third-party claims. According to the court of appeals, the trial court effectively severed GC’s third-party claims from the underlying lawsuit to be tried before a different jury. The court concluded that the order violates Chapter 33’s proportionate-liability scheme that requires the trier of fact to determine the percentage of responsibility for each party that caused harm. GC and all third-party defendants were entitled to a fact finding in a single trial regarding their proportionate share of responsibility. Thus, GC’s claims for contribution against third-party subcontractors could not be severed. The court held that the trial court
abused its discretion, and that GC lacked an adequate appellate remedy. ATTORNEY’S FEES: Court reverses appellate-fee award. Mustafa v. Asim, No. 03-2300018-CV (Tex. App.—Austin Dec. 20, 2024, no pet. h.) (mem op.). In a custody modification proceeding, the trial court awarded Asim $50,000 in appellate attorney’s fees. The court of appeals noted that under Yowell, when reviewing the legal sufficiency of an award of appellate fees, the court determines whether the party met its burden with opinion testimony about the services necessary to defend an appeal and a reasonable hourly rate for such services. The court observed that Asim only presented evidence of hourly rates and estimates of fees for each phase of the appeal. Asim’s attorney provided no evidence about the legal services necessary to defend an appeal. Thus, the court held that the appellate-fee award was legally insufficient under Yowell. The court reversed and remanded for a redetermination of attorney’s fees and affirmed the remainder of the judgment. AL
Divorce and Child Custody Surveillance ~ Undercover Background Checks Computer & Phone Forensics Corporate Investigations Expert Testimony and more STRICTLY CONFIDENTIAL
“Information is power, the not knowing is devastating.” 14
AUSTINLAWYER | FEBRUARY 2025
Anji Maddox
Featured in Forbes Magazine
Offices in Austin, Round Rock, & Dallas
THIRD COURT OF APPEALS CRIMINAL UPDATE
Zak Hall is a staff attorney for the Third Court of Appeals. The summaries that follow 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 is a summary of selected criminal opinions issued by the Third Court of Appeals from June 2024. The summary is an overview; please review the entire opinions. The subsequent history is current as of January 6, 2024.
> JURY DELIBERATIONS ASSISTANCE OF COUNSEL: Appellate court could not conclude that defendant was denied assistance of counsel during jury deliberations when record was silent regarding whether trial court attempted to secure trial counsel’s presence during any readback of testimony in response to jury notes. Bostic v. State, No. 03-22-00633CR (Tex. App.—Austin June 21, 2024, no pet.) (mem. op., not designated for publication). Bostic was tried and convicted of two counts of aggravated sexual assault of a child. The clerk’s record contained five notes from the jury asking for portions of trial testimony or clarifications of facts. The record did not contain any acknowledgment or response to the notes from the judge or any mention of them in the reporter’s record. On appeal, Bostic asserted that the trial court denied him assistance of counsel during a critical stage of trial because the record was silent regarding wheth-
er the trial court made any effort to secure trial counsel’s presence during any readback of testimony in response to the jury notes. Bostic argued that this was a violation of Article 36.27 of the Code of Criminal Procedure, which requires that before answering the jury’s question, the trial court “shall use reasonable diligence to secure the presence of the defendant and his counsel” and “shall answer any such communication in writing,” that “[t]he written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant,” and that “[a]ll such proceedings in felony cases shall be a part of the record and recorded by the court reporter.” However, the court observed that “a presumption of regularity applies to Article 36.27 requirements when the record is silent regarding compliance by the trial court” and that “unless the record establishes to the contrary, we presume that the trial court complied with Article 36.27,” including the requirement of counsel’s presence. The court added that such a presumption did not violate federal due process. The court also disagreed with Bostic’s contention that applying such a presumption in this case left him without a remedy, noting that after discovering the jury notes, Bostic could have filed a motion for new trial, which would have provided him with an opportunity to develop the record. LESSER-INCLUDED OFFENSES FELONY MURDER: Manslaughter and criminally negligent homicide were not lesser-included offenses of felony murder as charged in the indictment. Williams v. State, 693 S.W.3d 877 (Tex. App.—Austin 2024, no pet.). Williams was convicted of felony murder after a highspeed police chase resulted in a crash that killed the passenger of his motorcycle. During the charge conference, Williams requested jury instructions on manslaughter and criminally negligent homicide, which he argued were lesser-included offenses. The trial court denied the request,
and the appellate court affirmed. The court examined whether the proposed lesser-included offenses could be established by proof of the same or less facts required to establish the commission of the offense charged. The key difference between felony murder and other homicide offenses is that “[f]elony murder attaches no culpable mental state to the death of an individual,” whereas manslaughter requires recklessness and criminally negligent homicide requires criminal negligence. Thus, “the requisite mental states for intentionally, knowingly, recklessly, and criminally negligently causing death are all subjective mental states that are focused on the defendant’s subjective mindset regarding the result of his conduct, i.e., the death of the victim.” Consequently, “manslaughter and criminally negligent homicide both require proof of an element that felony murder does not—a culpable mental state regarding the death of the individual.” Williams acknowledged “that under the statutory language of
felony murder, manslaughter and criminally negligent homicide are not lesser included offenses.” However, the indictment added a culpable mental state of “intentionally or knowingly” before the element of “commit or attempt to commit an act clearly dangerous to human life,” and Williams contended that this language required the State to prove that Williams intentionally or knowingly caused the death of the victim. The court disagreed, explaining that “as charged, the mental states ‘intentionally and knowingly’ modify the alleged action committed by Williams and commission of the felony, but do not apply to his subjective intent or knowledge about whether [the victim] would die.” Because the mental states in the indictment did not relate to “causing death” but “rather to the act that caused death and to the commission of the felony, manslaughter and criminally negligent homicide both include an element not included in the offense charged—a mental state for causing the result of death.” AL
Protection You Can Trust, Security You Can Rely On
Our specialized security firm is here to support you and your clients with services tailored to meet the unique needs of the legal profession.
• • • • • • •
Threat Assessment & Risk Mitigation Executive Protection Estate Security Corporate Risk Management and Protection Reconnaissance & Surveillance Discreet Investigations Workplace Violence Prevention Serving the Great State of Texas www.SpecialMissionConcepts.com License #C28520601 (737) 303-1618 Disabled Veteran-Owned and Operated FEBRUARY 2025 | AUSTINLAWYER
15
TEXAS SUPREME COURT ry is not influenced by the TCPA’s multi-step framework, the second step of which requires a plaintiff to show clear and specific evidence of each element of every claim. That heightened standard is relevant only if the TCPA applies. But whether it applies (or, if it does, whether a plaintiff can satisfy the clear-and-specific-evidence requirement), are merits questions that a court may not resolve without first assuring itself that it has subject-matter jurisdiction. The Court further held that under its precedents, a pending TCPA motion cannot create jurisdiction when a court lacks jurisdiction to entertain the underlying case. A claim for fees and sanctions under the TCPA can prevent an appeal from becoming moot, but only if a court with subject-matter jurisdiction had already determined that the TCPA movant prevails. If the plaintiffs here lack standing, then no court ever had jurisdiction to declare the defendants to be prevailing parties. Accordingly, the Court reversed the court of appeals’ judgment and remanded the case to that court for further proceedings.
The following are summaries of selected opinions issued by the Texas Supreme Court in November 2024. These summaries are prepared by court staff as a courtesy and are not a substitute for the actual opinions. The summaries are overviews of the opinions; please review the entire opinions.
> JURISDICTION STANDING Tex. Right to Life v. Van Stean, ___ S.W.3d ___, 2024 WL ___ (Tex. Nov. 22, 2024) (per curiam) [23-0468] This case concerns a motion to dismiss under the Texas Citizens Participation Act in a suit challenging the constitutionality of the Texas Heartbeat Act. The plaintiffs allege that the defendants organized efforts to sue those who may be or may be perceived to be violating the Texas Heartbeat Act. The defendants filed a motion to dismiss under the TCPA, which the trial court denied. After the defendants filed an interlocutory appeal, the court of appeals held that the TCPA does not apply to the plaintiffs’ claims. It therefore affirmed the trial court’s order. The defendants petitioned for review. The Supreme Court held that the court of appeals erred by determining the TCPA’s applicability before addressing the disputed jurisdictional question of the plaintiffs’ standing. The Court explained that the standing inqui-
PROCEDURE—PRETRIAL: DISCOVERY In re Off. of Att’y Gen., ___ S.W.3d ___, 2024 WL ___ (Tex. Nov. 22, 2024) (per curiam) [24-0073] The issue in this mandamus proceeding is whether the trial court abused its discretion by compelling depositions of fact witnesses in a case where the defendant amended its answer and no longer contests liability. Four former employees sued
512-487-7994 hello@herlihy-law.com scottherlihylaw.com
16
AUSTINLAWYER | FEBRUARY 2025
the Office of the Attorney General under the Whistleblower Act. They sought to depose the Attorney General and three senior OAG employees. OAG amended its answer, stating that it no longer disputes the lawsuit as to any issue and consents to the entry of judgment against it. The trial court issued an order compelling the depositions. OAG sought mandamus relief. In a per curiam opinion, the Supreme Court conditionally granted relief. It concluded that OAG’s unambiguous statements in its amended answer unquestionably alter the analysis to determine whether the deposition requests show a reasonable expectation of obtaining information that would aid in the dispute’s resolution and whether the burden or expense of the depositions outweigh their likely benefit. The Court held that the trial court abused its discretion by failing to consider how the narrowing of the disputed fact issues to include only damages affect the need, likely benefit, and burden or expense of the requested depositions. The Court rejected the plaintiffs’ additional arguments that the depositions are needed to advance the purposes of the Whistleblower Act and to obtain effective relief through legislative approval of the judgment. The Court concluded that neither argument justifies altering the rules’ limits on discovery obligations in a lawsuit. GOVERNMENTAL IMMUNITY TEXAS TORT CLAIMS ACT Texas Tort Claims Act City of Austin v. Powell, ___ S.W.3d ___, 2024 WL ___, (Tex. Dec. 31, 2024) [22-0662] The issue in this case is whether the Texas Tort Claims Act waives the City of Austin’s governmental immunity. Officers Brandon Bender and Michael Bullock were involved in a police chase. Officer Bullock was closely following Officer Bender’s vehicle. Officer Bender decided to make a sudden right turn. Unable to slow in time, Officer Bullock struck the side of Officer Bender’s
car. The two cars lost control, and Officer Bullock’s car hit Noel Powell’s minivan, which was stopped at the intersection. Powell sued the City. The City filed a plea to the jurisdiction under the Act’s emergency-response exception. To establish the emergency exception, it was Powell’s burden to create a fact issue on either Officer Bullock’s compliance with an applicable statute or his recklessness during the chase. The trial court denied the City’s motion, and the City filed an interlocutory appeal. The court of appeals affirmed, holding that there is a fact issue about whether Officer Bullock’s actions were reckless. The Supreme Court reversed. The Court held that the City’s immunity to suit is not waived. First, no statute specifically applies to Officer Bullock’s actions during the chase, and thus no fact issue could arise as to compliance with one. Second, no evidence supports characterizing Officer Bullock’s actions as reckless. To qualify as reckless, more than a momentary lapse in judgment must be proven. Instead, there must be evidence that the officer consciously disregarded a high degree of risk. Here, the accident report listed Officer Bullock’s inattentiveness and failure to keep a safe following distance as reasons for the accident. At most, this evidence shows that Officer Bullock was negligent. Powell offered no other evidence to create a fact issue as to recklessness. Because the plaintiff must establish a waiver of sovereign immunity, Powell’s inability to provide evidence essential to the emergency exception means that the City should have prevailed on its plea to the jurisdiction. Accordingly, the Court reversed the court of appeals’ judgment and rendered judgment dismissing the case for lack of jurisdiction. ADMINISTRATIVE LAW PUBLIC INFORMATION ACT Univ. of Tex. at Austin v. GateHouse Media Tex. Holdings, II, Inc., ___ S.W.3d ___, 2024 WL ___ (Tex. Dec. 31, 2024) [230023]
The issue in this case is whether the Texas Public Information Act gives the University of Texas discretion to withhold records of the results of disciplinary proceedings. The Austin–American Statesman sent a PIA request to the University, seeking the results of disciplinary proceedings in which the University determined that a student was an alleged perpetrator of a violent crime or sexual offense and violated the University’s rules or policies. The University declined to provide the information, asserting that the federal Family Educational Rights and Privacy Act does not require this information’s disclosure. The Statesman filed a statutory mandamus proceeding in the trial court, seeking to compel the disclosure. It then moved for summary judgment, arguing that the PIA revokes the discretion granted by FERPA. The trial court granted the Statesman’s motion, ruling that the records are presumed subject to disclosure because the University failed to comply with the PIA’s requirement that a decision of the Office of Attorney General be sought. The court of appeals affirmed. The Supreme Court reversed and rendered judgment for the University. The Court first held that the plain language of PIA Section 552.026—which states that the act “does not require the release” of education records “except in conformity with” FERPA— grants an educational institution discretion whether to disclose an education record if the disclosure
is authorized by FERPA. The Court then held that the University was not required to seek an OAG decision before withholding the records. The Court reasoned that the PIA provision imposing the requirement of an OAG decision does not apply to records withheld under Section 552.026, and it noted OAG’s policy refusing to review education records to determine their compliance with FERPA. CONSTITUTIONAL LAW SEPARATION OF POWERS Webster v. Comm’n for Law. Discipline, ___ S.W.3d ___, 2024 WL ___ (Tex. Dec. 31, 2024) [230694] The issue in this case is whether the Texas Constitution’s separation-of-powers doctrine renders the Commission for Lawyer Discipline’s lawsuit against First Assistant Attorney General Brent Webster nonjusticiable. After the 2020 presidential election, the State of Texas moved for leave to invoke the U.S. Supreme Court’s original jurisdiction to sue four other states regarding those states’ election-law changes. The first assistant appeared as counsel on the initial pleadings. After the State’s lawsuit was dismissed for lack of standing, an individual filed a grievance with the commission alleging that the first assistant committed professional misconduct. The commission eventually agreed and initiated disciplinary proceedings that target six statements in the plead-
ings. Invoking the separation of powers, the district court dismissed for lack of subject-matter jurisdiction. The court of appeals reversed, holding that neither the separation-of-powers doctrine nor sovereign immunity bars the case. The Supreme Court reversed. In an opinion by Justice Young, the Court observed that generally, scrutiny of statements made directly to a court within litigation is by the court to whom those statements are made. In contrast with such direct scrutiny, the commission’s collateral scrutiny seeks to second-guess the contents of the initial pleadings filed at the attorney general’s direction on behalf of the State, which intrudes into the attorney general’s constitutional authority both to file petitions in court and to assess the propriety of the representations that form the basis of those petitions. The separation-of-powers balance is delicate. While courts retain inherent authority to compel all attorneys to adhere to standards of professional conduct within litigation (hence why direct review remains available), the other branches lack the authority to control the attorney general’s litigation conduct (which is why collateral review outside the litigation process would push too far). This Court’s ultimate authority to regulate the practice of law does not depend on allowing the commission to bring its unprecedented lawsuit. Because this lawsuit does not allege criminal or ultra vires conduct, the first assistant is not subject to collateral review of either the choice to file a lawsuit
Patrick
Keel
or the representations in the suit’s initial pleadings. The Court therefore reinstated the district court’s judgment of dismissal. Justice Boyd filed a dissenting opinion that rejects the Court’s newly minted distinction between the judicial branch’s “direct” and “collateral” enforcement of the disciplinary rules. In his view, the constitutional separation of powers prohibits a branch of government from exercising a power that belongs to another branch but does not separate the powers that exist within a single branch or restrict the means by which a branch may exercise a power it properly possesses. He thus would have held that the separation-of-powers doctrine does not deprive the courts of subject-matter jurisdiction. AL
Mediator Arbitrator
Former District Judge
patrickkeel.com Available by video and in person.
FEBRUARY 2025 | AUSTINLAWYER
17
LOCAL JURY TRIAL VERDICTS
November/December District & County Court Jury Trial Verdicts BY VELVA PRICE, TRAVIS COUNTY DISTRICT CLERK
Editor’s Note: The monthly jury trial verdicts update is first published through Bar Code and the Austin Bar app. Dowload the app on either the App Store or the Google Play Store. CIVIL CenTex CBD, LLC v. Lonestar Farms LLC, dba Sweet Sensi CBD Cause No: D-1-GN-23-004645 Judge: Maya Guerra Gamble, 459th Civil District Court Dates: Nov. 4 – 14, 2024 Attorneys: Plaintiff: Matt Lightfoot and Abigail Ventress, VBPena Law, PLLC Defendant: Lisa Pittman, Pittman Legal, and Jack Wisdom, Martin, Disiere, Jefferson & Wisdom, LLP Case Summary: Plaintiff sued Defendant for breach of contract, fraud, and deceptive trade practices, claiming Defendant delivered mislabeled and incorrect gum drops - consumable hemp products. The jury charge contained 26 questions. A unanimous jury found that Defendant engaged in deceptive trade practice. Further, the Defendant engaged in unconscionable acts, and knowingly failed to comply with the warranty. The jury awarded Plaintiff the following damages: Fair and reasonable compensable damages - loss of the benefit of the bargain - $9,994; out-of-pocket expenses - $3,400; and lost profits - $6,594. Damages for knowingly finding are: $95,722. The jury further found that Defendant committed constructive fraud and awarded the following damages: Loss of the benefit of the bargain - $9,994; outof-pocket expenses - $3,400; and lost profits - $6,594. In addition, the jury found that Defendant failed to comply with its agreement with Plaintiff and awarded damages: Loss of the 18
AUSTINLAWYER | FEBRUARY 2025
benefit of the bargain - $9,994; outof-pocket expenses - $3,400; and lost profits - $6,594. Damages were also awarded due to Plaintiff’s reliance on Defendant: loss of the benefit of the bargain - $9,994; out-of-pocket expenses- $3,400 and lost profits-$6,594. The jury also found that Lonestar did not own a trade secret in the formula, pattern, etc. Hartford Underwriters Insurance Company v. Tara Edmondson, Ind. and A/N/F of M.E. and S.E. Minors And Beneficiaries of Brandon Edmondson, Deceased Cause No: D-1-GN-21-002484 Judge: Jessica Mangrum, 200th Civil District Court Dates: Nov. 4 – 6, 2024 Attorneys: Plaintiff: Mike Donovan, Burns, Anderson, Jury, Brenner, LLP (Austin) Defendant: Michael Wadler, Wadler Law (Houston) Case Summary: This case is a workers’ compensation de novo appeal. Brandon Edmondson was killed in a single vehicle accident in which he was the driver. Texas Department of Insurance, Division of Workers Compensation (DWC) awarded workers’ compensation benefits to the survivors of Brandon Edmondson. A unanimous jury found that Brandon Edmondson was in the course and scope of his employment at the time of the fatal car crash, and his death was not caused by his willful attempt to injure himself. Further, the jury awarded attorneys fees incurred by Tara Edmondson: Trial court representation - $272,000; court of appeals - $30,000; supreme court - $10,000; oral argument/ completion of proceedings in the Supreme Court of Texas - $10,000. Jose Velasquez v. Kyle Turpin Cause No: D-1-CV-22-003040; Judge: Eric Shepperd
Dates: Nov. 6 – 7, 2024 Attorneys: Plaintiff: Mason Allenger (Austin) Defendant: Catherine Wilson, Martinez, Dieterich & Zarcone Legal Group (Edinburg) Case Summary: Plaintiff claims that on or about April 2022, he was stopped at an intersection when a person driving a Tacoma turning was hit by Defendant who drove through a red light, therefore forcing the Tacoma into Plaintiff’s vehicle. The court declared a mistrial on the second day of trial. In The Interest of D.S.M.R., A Child Cause No: D-1-FM-24-000506 Judge: Catherine Mauzy, 419th Civil District Court Dates: Nov. 18 – 19, 2024 Attorneys: Petitioner: Jannice Joseph, Texas Dept. of Family and Protective Service Respondent: Jose Martinez-Argueta: Daniella Salazar (Manor) Intervenor: Liliam Moncada: Jesus Sifuentes, Sifuentes & Drummond (Austin) Attorney Ad Litem: Jaymi Furniss-Jones, Jorgeson Pittman, LLP (Austin) Case Summary: Respondent was incarcerated because he was charged with the murder of the minor’s mother. The State claimed that the minor was in danger and requested termination of the parental rights of Respondent. Respondent requested a jury trial, and the jury heard testimony Nov. 18-19, 2024. Then Respondent waived the jury trial and voluntarily relinquished his parental rights. Shaun Thomas, Ind. and A/N/F of A.T. and A.T. , Minors v. Julio Maldonado And Justi Trauernicht Cause No: D-1-GN-23-000643 Judge: Jessica Mangrum, 200th
Civil District Court Dates: Nov. 19 – 20, 2024 Attorneys: Plaintiff: Joseph Barrientos, Law Office of Thomas J. Henry (San Antonio) Defendant: Anthony Icenogle, Icenogle & Boggins, PLLC (Austin) Case Summary: Adult Plaintiff claims that he was driving with two minor passengers when Defendant Julio Maldonado, under the influence of alcohol and distracted by his phone traveling in front of Plaintiff in the same direction, swerved and damaged the guardrail. The other Defendant, Justi Trauernicht, stopped suddenly to avoid the guardrail, and Plaintiff hit the back of the Trauernicht vehicle. Eleven jurors voted that Plaintiff Shaun Thomas was 60 percent negligent and Defendant Julio Maldonado was 40 percent negligent. Plaintiff nonsuited Defendant Justi Trauernicht on Nov. 19, 2024. Cirilio Sanchez III v. Stephanie Sanchez Cause No: D-1-GN-23-008696 Judge: Jan Soifer, 345th Civil District Court Dates: Nov. 19 – 21, 2024 Attorneys: Plaintiff: Ard Ardalan and Kelly Garemko, Ardalan Law Firm PLLC Defendant: Michelle Garcia Shaw and Catherine Wilson, Martinez, Dietrich & Zarcone Legal Group Case Summary: Plaintiff claims he was injured when his trailer was rear-ended by Defendant’s vehicle while Plaintiff was stopped in left lane. Defendant contended she was sideswiped by a “ghost car,” which caused her to lose control and rear-end Plaintiff’s trailer. Ten jurors voted that Defendant was not negligent.
In The Interest of I.K.R.S., A Child Cause No: D-1-FM-19-001893 Judge: Maya Guerra Gamble, 459th Civil District Court Dates: Nov. 19 – 22, 2024 Attorneys: Petitioner: Andrea Redmond Stickney: Kurt D. Metscher, Walters Gilbreath, PLLC (Austin) Respondent: Isaac Stickney: Tiffany Bartlett (Austin) Case Summary: Petitioner requested to be designated the sole managing conservator and, in the alternative, joint managing conservator with the right to designate the primary residence of the child within Travis/Williamson Counties. Ten jurors voted that both Petitioner and Respondent should be appointed joint managing conservators but that Petitioner Andrea Redmond-Stickney should have exclusive right to designate the primary residence of the child. Further, the jury awarded both Petitioner and Respondent reasonable attorney’s fees of $77,000.
Fratris Clearleaf, LLC, FA Retreat, LLC, Fratris Midtown, LLC and Fratris 603, LLC vs. RPM Living, LLC Cause No: D-1-GN-23-008110 Judge: Catherine Mauzy, 419th Civil District Court Dates: Dec. 10 - 18, 2024 Attorneys: Plaintiffs: Michael Navarre, Beatty Navarre Strama PC (Austin) Defendant: Lindsey Wyrick, Cobb Martinez Woodward, PLLC (Dallas) Case Summary: This case is a property management dispute. Plaintiffs own several multifamily communities and sued Defendant for breach of contract, fraud, and breach of fiduciary duty, claiming that Defendant’s fraud included the knowing falsification of financial and operating records. Defendant filed a counterclaim. Jury was reduced from 12 to 10 due to illness. All 10 of the remaining jurors found that Defendant RPM did not commit fraud in the inducement to enter into an agreement. The jury did find that RPM
Travis County Constable 5 The Courthouse Constable 1003 Guadalupe Austin, Tx 78701 Office: 512-854-9100 Fax: 512-854-4228 www.Constable5.com
committed fraud against all Plaintiffs. The jury found that RPM did not comply with its fiduciary duties. The jury also found that the Defendant failed to comply with each of the Plaintiff’s agreements and that each Plaintiff failed to comply with their agreement with the Defendant. The jury also found that the Defendant failed to comply with the agreement first. Damages awarded: Fratris Clearleaf - reasonable and necessary expenses in attempting to mitigate business losses - $248,300; past lost profits - $219,816; FA Retreat – difference between the value of business upon execution of the agreement and upon disposition by Defendant - $4,693,384; reasonable and necessary expenses in attempting to mitigate business losses - $100,000; past lost profits - $563,206; Fratris Midtown - reasonable and necessary expenses in attempting to mitigate business losses - $460,600; past lost profits -$287,876; Fratris 603 - Difference between the value of business for execution of
the agreement and upon disposition by Defendant - $1,965,342; reasonable and necessary expenses in attempting to mitigate business losses - $55,000; past lost profits - $261,635. The jury further found by clear and convincing evidence that the fraud resulted in damages and awarded exemplary damages as follows: Fratris Clearleaf - $1,250,000; FA Retreat - $1,250,000; Fratris Midtown - $1,250,000; Fratris 603 $1,250,000. The jury further awarded damages against each Plaintiff for failure to comply with the agreements: Fratris Clearleaf - $47,850.33; FA Retreat - $47,850.32; Fratris Midtown -$47,850.32; Fratris 603 $47,850.32. CRIMINAL State Of Texas v. Adriean Benn Cause No: D-1-DC-21-300413 Judge: Selena Alvarenga, 460th Criminal District Court Dates: Oct. 28 – Nov. 1, 2024
Representing Attorneys
Gaines West
State-wide Practice State Bar of Texas
Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010
Texas Board of Disciplinary Appeals
Appointed by the Texas Supreme Court
EFILE: Request Constable 5 for Efile Process Service SERVICE FEES INCLUDE: Rush Services, Skip-Trace, Research, plus exclusive access to law enforcement database
SERVICE AREA INCLUDES: Travis and surrounding counties 24/7 Online Service Check Daily delivery to State of Texas offices “Your civil process experts. Available for civil and family process needs.” ~ Constable Carlos B. Lopez
Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003
State Bar of Texas
Disciplinary Rules of Professional Conduct Committee Member, 1993-1996
Disciplinary Review Committee Member, 1991-1992
Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member
Principal Office – 979.694.7000 1515 Emerald Plaza • College Station, TX 77845
Austin – By Appointment – 512.501.3617 1012 Rio Grande St. • Austin, TX 78701
westwebblaw.com FEBRUARY 2025 | AUSTINLAWYER
19
Attorneys: State of Texas: Erik Nielsen Defendant: Amber Vazquez, Vazquez Law Firm, PLLC (Austin) Case Summary: Defendant was arrested for murder of a person who was shot inside of a club located on E. 7th Street. A mistrial was declared due to a hung jury. Pretrial is set for 2025. State Of Texas v. Sergio Carces-Herrera Cause No: D-1-DC-23-904034 Judge: Brad Urrutia, 450th Criminal District Court Dates: Nov. 4, 2024 Attorneys: State of Texas: Jason Rew-Hunter Defendant: Jackson F. Gorski and Raymond Esperson (Austin) Case Summary: Defendant was indicted for aggravated assault of a minor. A mistrial was declared. Case is reset for 2025. State Of Texas v. Michael Marios Lamnissos Cause No: C-1-CR-23-400444 Judge: Michael Keasler, visiting judge
Dates: Nov. 4 - 7, 2024 Attorneys: State of Texas: Edward Jaramillo Defendant: Michael Watson (Austin) Case Summary: Defendant was arrested for violating Texas Penal Code Section 25.11 – Continuous Violence Against the Family. Jury found the Defendant guilty of Assault causing Bodily Injury. Jury assessed punishment of 365 days in jail and $4,000.00 fine. The jury further agreed to probate the sentence and $3,999.00 of the fine. State of Texas v. Wynli Hernandez Cause No: D-1-DC-20-302098 Judge: Michael Keasler Dates: Nov. 18 – 21, 2024 Attorneys: State of Texas: Andrea Richter Defendant: Geoffrey Puryear, Cofer Connelly (Austin) Case Summary: Defendant was arrested for allegedly sexually assaulting a minor when she was 6 years old. The Defendant rented a room in the apartment where the minor lived. The jury found the
Appeals and Trial Court Support
Defendant not guilty of Aggravated Sexual Assault of a Child. State of Texas v. Laura Chee-Gay Cause No: D-1-CR-23-008392 Judge: Kimberly Williams Dates: Nov. 18-19, 2024 Attorneys: State of Texas: Afton Wash bourne, Travis County Attorney’s Office Defendant: Jessica Bernstein Case Summary: Defendant was arrested for intentionally harassing, annoying, tormenting or embarrassing another person after Defendant was asked to cease communications. The jury found the Defendant guilty. Sentencing is pending. State of Texas v. Charles Allen Cause No: D-1-DC-23-904072/ 904073 Judge: Selena Alvarenga, 460th Criminal District Court Dates: Nov. 18 - 22, 2024 Attorneys: State of Texas: Danielle Tierney Defendant: Daniel Betts/Ray Espersen Case Summary: Defendant was indicted for the offense of Aggravated Sexual Assault, Burglary of Habitation, Robbery and Kidnapping. The jury found the Defendant guilty of Aggravated Sexual Assault and Burglary of a Habitation. Defendant was convicted to life in prison. State of Texas v. Francisco Pena Cause No: C-1-CR-24-203326; Judge: Bianca Garcia Dates: Dec. 9, 2024 Attorneys: State of Texas: Miguel Gutierrez Defendant: Alfonso Hernandez, Alfonso C. Hernandez Law, PLLC (Austin) Case Summary: Defendant was charged with Driving While Intoxicated. Defendant entered a plea in another case and this case was dismissed after the jury was chosen.
www.LaurieRatliffLaw.com 512-422-3946 laurie@laurieratlifflaw.com 20
AUSTINLAWYER | FEBRUARY 2025
State of Texas v. Francisco Godinez Buenrostro Cause No: D-1-DC-23-300583; Judge: Clifford Brown, 147th
Criminal District Court Dates: Dec. 9 – 16, 2024 Attorneys: State of Texas: John Castro Defendant: Charles Baird, Baird Law Firm, PLLC (Austin) Case Summary: Defendant was indicted for sexual assault of a minor child. A mistrial was declared. State of Texas v. Ololade Shoetan Cause No: D-1-DC-21-500171 Judge: Chantal Eldridge, 331st Criminal District Court Dates: Dec. 9 – 12, 2024 Attorneys: State of Texas: Jaime Liu Defendant: William B Mange, Dunham & Jones, PC (Austin) Case Summary: Defendant was indicted for sexual assault and aggravated kidnapping. The jury found the Defendant not guilty of sexual assault, guilty of attempted sexual assault and aggravated kidnapping. Defendant elected for the Court to assess punishment. State of Texas v. Manolo Gonzalez Cause No: D-1-DC-23-200560; Judge: Bob Perkins Dates: Dec. 9 – 12, 2024 Attorneys: State of Texas: Rebekah Mata, Sam Henry Defendant: Rhett Braniff (Austin) Case Summary: Defendant was indicted for knowingly shooting an individual with a firearm resulting in death. The jury found the Defendant guilty of murder and assessed a punishment of 40 years. State of Texas v. Tajaurae Jones Cause No: D-1-DC-23-302141; Judge: Selena Alvarenga, 460th Criminal District Court Dates: Dec. 9 – 12, 2024 Attorneys: State of Texas: Habon Yassin Mohammed Defendant: David B. Frank (Austin) Case Summary: Defendant was indicted for knowingly shooting an individual with a firearm resulting in death. The jury found the Defendant guilty of murder and assessed a punishment of 30 years. AL
AUSTIN BAR MEMBERS AT SCOTX
Austin Bar Members Appear Before SCOTX To Deliver Oral Arguments The Supreme Court of Texas convened Dec. 3-5 and Jan. 13-16 and heard oral arguments from several Austin Bar members
Austin Bar Member Thomas R. Phillips Baker Botts for Petitioners Werner Enters., Inc. v. Blake Negligence - Causation This car-crash case involves arguments about the sufficiency of the evidence, charge error, and damages. The December 2014 crash occurred on I-20 in Odessa, while a Winter Storm Warning issued by the National Weather Service was in effect. The warning cautioned that driving conditions would be extremely hazardous due to freezing rain and icy roads. Shiraz Ali, a novice driver employed by Werner Enterprises, was driving an 18-wheeler on I-20 westbound. He was accompanied by his supervisor, who was sleeping. In the eastbound lanes, Trey Salinas drove Jennifer Blake and her three children. Salinas hit black ice, lost control of his vehicle, and spun across the 42-foot-wide grassy median into Ali’s westbound lane. Ali promptly braked, but the vehicles collided, resulting in the death of one child and serious injuries to the rest of the Blakes. The Blakes sued Ali and Werner for wrongful death and personal injuries. The trial court rendered judgment on the jury’s verdict, which found Ali and Werner liable and awarded the Blakes more than $100 million in damages. Sitting en banc, the court of appeals affirmed over two dissents. Ali and Werner filed a petition 22
AUSTINLAWYER | FEBRUARY 2025
for review. They argue that Ali did not owe a duty to reasonably foresee that the Blakes’ vehicle would cross the median into his path; that no evidence supports a finding that Ali’s conduct proximately caused the crash; that Werner cannot be held liable for derivative theories of negligent hiring, training, and supervision when it accepted vicarious liability for Ali’s conduct; that the court of appeals erred by rejecting petitioners’ claims of charge error on grounds of waiver; and that the jury’s comparative-responsibility findings are not supported by legally sufficient evidence. The Supreme Court granted the petition. Case documents can be viewed at search.txcourts.gov/Case.aspx?cn=23-0493&coa=cossup The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=MnEzrMBMdQY
Austin Bar Member Wallace B. Jefferson Alexander Dubose & Jefferson for Petitioner BRP-Rotax GmbH & Co. KG v. Shaik Jurisdiction – Personal Jurisdiction The issue in this case is whether the trial court had specific jurisdiction over a foreign manufacturer for claims based on an allegedly defective product. Sheema Shaik suffered serious injuries when a plane she was
flying crashed at an airport in Texas. She and her husband sued BRP-Rotax, the plane’s engine manufacturer, asserting claims for strict products liability, negligence, and gross negligence. Rotax is based in Austria and sells its engines to international distributors who then sell the engines worldwide. The engine in this case was sold by Rotax under a distribution agreement to a distributor in the Bahamas whose designated territory included the United States. The trial court denied Rotax’s special appearance contesting personal jurisdiction. The court of appeals affirmed. Applying the stream-of-commerce-plus test, the court held that Rotax purposefully availed itself of the Texas market and that Shaik’s claims arose from or related to those contacts with Texas. Rotax petitioned this Court for review. It argues that all relevant contacts with Texas were initiated by Rotax’s distributor, which Rotax had no control over or ownership interest in. In response, Shaik argues that Rotax’s distribution agreement indicated an intent to serve the U.S. market, including Texas, and that Rotax maintained a website that allowed Texas customers to register their engines and identified a Texas-based repair center. The Court granted the petition for review. Case documents can be viewed at search.txcourts.gov/Case.aspx?cn=23-0756&coa=cossup The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=IVDs-Jym8n0
Austin Bar Member Jane Webre Scott Douglass & McConnico for Appellee Perez v. City of San Antonio Constitutional Law – Religion Clauses This certified question concerns Article I, Section 6-a of the Texas Constitution, which prohibits the state of Texas and its political subdivisions from prohibiting or limiting religious services. The City of San Antonio’s plans to improve Brackenridge Park require the City to temporarily close the Lambert Beach area of the park. Plaintiffs Gary Perez and Matilde Torres—who are members of the Native American Church and consider the Lambert Beach area a sacred place—sued the City, alleging that the City’s planned changes to and temporary closure of Lambert Beach violate Section 6-a. The district court denied plaintiffs’ request for access to the Lambert Beach area for individual worship and their request to minimize tree removal. The Fifth Circuit seeks guidance from the Supreme Court regarding the scope of Section 6-a. The City argues that the changes aim to promote safety and public health, while plaintiffs contend that Section 6-a does not even allow the City to try to satisfy strict scrutiny. The Fifth Circuit certified the following question to the Texas Supreme Court: Does the “Religious Service Protections” provision of the
Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation? The Court accepted the certified question. Case documents can be viewed at search.txcourts.gov/Case.aspx?cn=24-0714&coa=cossup The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=zUiYQdX_Bp8
Austin Bar Member Amy Warr Alexander Dubose & Jefferson for Appellee Paxton v. Annunciation House, Inc. Constitutional Law – Administrative Subpoenas This direct appeal case concerns a constitutional challenge to the Attorney General’s administrative subpoena powers. Pursuant to its authority to examine books and records of businesses registered in Texas, the Attorney General served an administrative subpoena on Annunciation House, a Catholic volunteer organization, seeking a variety of documents pertaining to individ-
uals who received certain services from Annunciation House. Annunciation House sought a declaratory judgment against the Attorney General, challenging the administrative subpoena on constitutional grounds, and later filed a no-evidence and traditional motion for summary judgment. The Attorney General cross-filed an application for temporary injunction, leave to file a quo warranto counterclaim, and a plea to the jurisdiction, which, among other things, sought to revoke Annunciation House’s business registration. The trial court granted Annunciation House’s summary judgment motion, concluding that the administrative subpoena statute was facially unconstitutional and entered injunctive relief against the Attorney General as to future administrative subpoenas served on Annunciation House. In a separate order, the trial court also denied the State’s application for temporary injunction and leave to file an amended petition asserting the quo warranto counterclaim, concluding that two provisions of the Texas penal code that served as the basis for the quo warranto counterclaim were preempted by federal law and that the penal code provisions and the quo warranto statute were unconstitutionally vague in violation of due course of law and therefore unenforceable. The Attorney General filed a direct appeal with the Court. Oral argument was granted on notation of probable jurisdiction. Case documents can be viewed
at search.txcourts.gov/Case.aspx?cn=24-0573&coa=cossup The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=qKOfafKjx_0
Austin Bar Member Cory A. Scanlon Office of the Attorney General of Texas, for respondent In re Carlson Administrative Law – Administrative Procedure Act At issue in this case is whether the state Comptroller is required to issue a final order after the State Office of Administrative Hearings dismisses a case for lack of jurisdiction. Thomas and Becky Carlson filed an administrative contested case against the Comptroller, alleging a takings claim. The Comptroller then referred the case to SOAH to conduct a contested case hearing. The Comptroller filed a motion to dismiss for lack of jurisdiction, which the administrative law judge granted. A SOAH official advised the Carlsons that the Comptroller needed to issue a final order before any further action could be taken in the case. The Carlsons requested that the Comptroller accept, reject, or modify the SOAH dismissal so that they could file a motion for
rehearing, a prerequisite to seeking judicial review. The Comptroller refused, asserting that the SOAH dismissal was already a final, appealable order. By then, the deadline to file a motion for rehearing had passed. The Carlsons sought mandamus relief in the trial court but nonsuited that action after the Comptroller filed a plea to the jurisdiction. The Carlsons then filed a petition for writ of mandamus in this Court, arguing that the Comptroller had a ministerial duty to issue a final order in their case under the Administrative Procedure Act. The Court granted argument on the petition for writ of mandamus. Case documents can be viewed at search.txcourts.gov/Case.aspx?cn=24-0081&coa=cossup
FEBRUARY 2025 | AUSTINLAWYER
23
Leading a Legal Delegation to Ireland BY RICHARD PENA, LAW OFFICES OF RICHARD PENA
O
ur legal delegation, which was comprised of lawyers and guests mainly from Texas, went to Ireland as a legal delegation Sept. 17-27, 2024. Our goal was to delve into Ireland’s road to peace stemming from its Troubles; how the Rule of Law plays out in the country; and the importance music has played in the history of Ireland. During our time in Ireland, our delegation had meaningful interactions with barristers, professors, musicians, historians, and peacemakers. We met with Turlough O’Donnell, who is recognized as one of the leading barristers and mediators in Ireland. He was very generous with his time. The 1.5-hour exchange occurred during the United States’ 2024 presidential election, and it was very clear that the members of the Irish bar we were meeting felt one of the candidates was a danger to them and the world order. One young barrister expressed bewilderment that our country had gotten to this point. We also discussed many nuts and bolts of the practice of law. For example, the Irish legal structure follows the English model, where the bar is divided between solicitors and barristers. The barristers are the ones that go to court, whereas the solicitors do not, but rather are the gatekeepers and handle noncourt matters. Barristers are not in firms or groups and are reliant on solicitors to send them litigation business. Although barristers with established reputations can do quite well, one young barrister told me he was struggling due to lack of business. After our meeting, Turlough took us to a bar with live music and bought us all Guinness. At the University of Galway, we were greeted by Martin Hogg, dean of the university’s law school. Along with him, we also 24
AUSTINLAWYER | FEBRUARY 2025
Richard Pena (front row, far left) with the others who took part in the legal delegation to Ireland.
met Maeve O’Rourke, who is one of the leading voices for human rights in Ireland. After lengthy discussions with our Irish hosts, it became clear that a softening of the attitudes of the North and the Republic is needed. This is something that cannot be legislated. So, the question is where to begin in what seems an impossible task. It was a pleasant surprise to find that there are individuals and organizations that are attempting to accomplish the reconciliation that is needed. One example of an individual seeking reconciliation is Trevor Ringland. Trevor is a lawyer and a partner in Macaulay & Ritchie and has earned a reputation in the field of litigation in Northern Ireland. He is a former British and Irish rugby player and is wellknown for his public profile on issues of Irish reconciliation. In 2021 he was appointed the U.K.’s first special envoy to the United States on Northern Ireland. He is highly accomplished with many accomplishments and honors, but what interested us the most was his cross-community work in the area of reconciliation. In recognition of this, an organi-
zation he co-founded, PeacePlayers, was awarded the Arthur Ashe Courage Award at ESPN’s ESPY Awards. In Belfast, Northern Ireland, PeacePlayers brings together Catholic and Protestant youth to play basketball and form friendships in the hope that future generations will reconcile the divided country. PeacePlayers is also active in the Middle East, South Africa, and the United States. It is remarkable, Trevor said, that once the boys are on the same team and striving for the same goal, the differences and long-standing resentment disappear. Integrating the children also, by necessity, integrates the parents. I think of this program as a shining example of cooperation and community building. We also met with Martina Purdy, who was a high-profile BBC Northern Ireland political correspondent reporting on the peace process that led up to the Good Friday Agreement on April 10, 1998. She has written a book, Room 21: Stormont Behind Closed Doors, which covers the rise and fall of the power sharing assembly in Northern Ireland. She was in Oslo as a reporter when
David Trumble and John Hume shared the Nobel Peace prize for their contributions in bringing about the peace agreement between Northern Ireland and the Republic of Ireland. And then this highly accomplished public figure quit the BBC in 2014 and entered religious life as a Sister of Adoration in Belfast. We learned much from Martina. She told us that, in the 1960’s, Ireland was taking note of the civil rights protests around the globe, in particular the Civil Rights movement in the U.S. and apartheid in South Africa. At this same time in Ireland, Catholics could not effectively vote as voting was based on ownership of property, and few Catholics had jobs that would have enabled them to buy property. Getting to the peace agreement was not easy, and there is still work to be done. My hope is that, through these legal delegations, we can exchange ideas that can heal the divides in both Ireland and the United States. If you would like to join us on a future delegation trip, please be on the lookout for a notice in Bar Code. AL
Complexity is our specialty. The law firm of Slack Davis Sanger specializes in navigating and winning complex personal injury cases. With three decades of experience, an in-house nurse paralegal and a team of highly-regarded lawyers, we have the technical and legal expertise to outwork, out-think, and out-resource any opposition. SLACKDAVIS.COM Aviation | Medical Malpractice | Truck & Workplace Injury | Whistleblower
Are You Taking Advantage of Austin Bar Member Discounts?
A
s an Austin Bar member, you’re eligible to receive discounts on products and services through agreements we have with local businesses! These discounts have exclusive webpages associated with them. To access these webpages, you’ll need to: 1. Log into your AustinBar.org account 2. Click on “For Attorneys” 3. Click “Member Benefits” 4. Scroll down to “Member Discounts & Services” 5. Click on “View Member Discounts & Services.” PracticePanther Practice Management Software Get back to practicing law with PracticePanther. From native features such as custom intake forms, document templates, and
automated workflows to billing and payment processing, texting, and esignature, PracticePanther does the heavy lifting so you can focus on getting more done in less time. As an Austin Bar Association member, you can benefit from an exclusive 15% discount on your first year of PracticePanther’s Annual Business plan! Aesthetica Medspa Established in 1999, Aesthetica Medspa is Austin’s premier medical spa. At Aesthetica, cutting-edge cosmetic dermatology treatments and technologies are combined with a staff physician and all the comforts of a luxury spa. Austin Bar members receive a 20% discount on all services. Sabiki Consulting To address your forensic accounting and damages expert
MEDIATION & ADR SERVICES
MARK L. HAWKINS THE BEST LAWYERS IN AMERICA®
COMMERCIAL LITIGATION 2012–PRESENT
TEXAS SUPER LAWYERS®
BUSINESS LITIGATION 2016–PRESENT
THE BEST LAWYERS IN AMERICA®
REAL ESTATE LAW 2012–PRESENT
AUSTIN MONTHLY
TOP ATTORNEY 2019–PRESENT
Armbrust & Brown, PLLC 100 CONGRESS AVE., SUITE 1300 • AUSTIN, TEXAS 78701 512-435-2300 • FAX 512-435-2360 MHAWKINS@ABAUSTIN.COM
26
AUSTINLAWYER | FEBRUARY 2025
witness needs, contact Sabiki Consulting for a diligent, responsive, and dependable adviser. As a former Managing Director with over 18 years of client service, over 15 expert designations, and trial testimony experience, Deepak Sabiki will help you solve your client’s complex problems. Austin Bar Members will receive a 10% hourly rate discount. LawPay Merchant Account - Credit Card Processing for Attorneys Accepting credit cards can attract clients, improve cash flow and reduce collections. Correctly safeguard and separate client funds into trust and operating accounts. In addition, members save up to 25% off credit card processing fees. We’re Boss Want to find an experienced legal team to support your firm’s back office? We’re Boss can take that stress off your plate. Our success assisting law firms with fractional, virtual back-office support has proven paramount to our clients’ growth. Our services improve your firm’s productivity by streamlining procedures through • legal practice management software consultation • client billing • bookkeeping • legal admin • paralegal assistance. We also partner with an unmatched list of respected advisors ready to help your practice reach its fullest potential. Austin Bar Members will receive a 10% discount off your first 3 months of business. CLE Online CLE Online delivers convenient and high-quality online CLE seminars at a discount to Austin Bar Members. Twindeavor Web Services Twindeavor can build affordable software solutions for every day, costly small business prob-
lems that will help members of the Austin Bar Association grow their firms and function more productively. We accomplish this by: • Creating a web presence by way of customized websites, SEO, and content management systems • Automating workflows such as email, client management, contracts and documentation, and appointment scheduling processes • Building brand awareness with creative techniques such as marketing videos, social media assets, podcast production, and business card design • Automatically generating prospects using chatbots and online surveys As members of the Austin Bar Association, you will receive • Free one-hour consultation to discuss what struggles and inefficiencies exist • Free customized web solution proposal of how Twindeavor can help with productivity • 10% off our Web Presence Strategy • 15% off our Integrations and Automations Strategy • 15% off Payments Strategy B2 Legal Management Plug-In and Practice Service B2 provides outsourced back-office support to attorneys and expertise in accounting, billing, payroll, and software. With over 35 years of staff experience in the legal community, B2 was established nine years ago in Austin and now has clients all over the U.S. We are excited to offer you our Plug-In and Practice service, which allows attorneys to plug into B2 for a flat fee per attorney. Let us manage the time-consuming business of your practice so you can take care of what you like to do – practice law and take care of your clients. AL
EVERYTHING’S BIGGER IN TEXAS, AND NOW BUTLER SNOW IS, TOO. B u t l e r S n o w w e l c o m e s t h e a t t o r n e y s o f E n o c h Ke v e r t o i t s A u s t i n , Tex a s o f f i c e.
S a ra B e r ke l e y C h u rc h i n Elana Einhorn C ra i g E n o c h Heather Jones Holmes Z a c ke r y H o r t o n
That’s Law Elevated
A n d re w Ke v e r P a u l a Le a r M e l i s s a Lo r b e r B i l l M o o re Shelby O’Brien
1 4 0 0 L a v a c a S t re e t , S u i t e 1 0 0 0 Au s t i n , T X 7 8 7 0 1
C a ro l y n S h e l l m a n Martha Smiley Jessica Soos Gary Zausmer
(737) 802-1800 w w w. b u t l e r s n o w.c o m
This ad authorized by Amanda G. Taylor, Attorney, 1400 Lavaca Street, Suite 1000, Austin, TX 78701. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.
Crump, Hurley Retire from District Court
B
elow are the remarks of Austin Bar President Mary-Ellen King during the recent retirement ceremonies for District Court Judges Rhonda Hurley and Karin Crump. Nov. 15, 2024 Judge Karin Crump Thank you all for coming out today. Today Travis County loses a great district judge, but the Third Court of Appeals gains a great justice. Judge Karin Crump was elected to the district bench in 2014 and has presided over the 250th District Court since. Judge Crump has a sterling reputation among lawyers and judges, not just in Travis County but throughout Texas. She is the immediate past president of the Texas Association of District Judges. Prior to joining the bench, Karin cut her teeth practicing criminal
28
AUSTINLAWYER | FEBRUARY 2025
law, complex civil litigation, family law, and dispute resolution. The Texas Judiciary is very fortunate to have a justice with such a diverse background. Judge Crump’s most enduring legacy so far is her commitment to mentorship. She is co-founder of the Austin Bar/Austin Young Lawyers Association’s Leadership Academy, which is an annual fivemonth program in which lawyers from all areas of practice, firm size, and levels of experience take part in service to the bar and professional development. Each program culminates in a class project. Past class projects include renovating the victim-witness room at the Gardner Betts Justice Center and donating books, games, and toys to the children’s playrooms at the Travis County Civil and Family Courts Facility. Judge Crump is also the judicial liaison for the Youth Justice Alliance, a nonprofit that provides
Judge Karin Crump and Judge Rhonda Hurley
high-school students throughout Texas the opportunity to take part in four-year paid fellowships. These fellowships provide legal training, internship funding, mentorship, career guidance, and law school admissions support. The program prioritizes Title-1 high
schools and underrepresented communities, creating pathways to diversify the legal profession. Judge Crump has also donated her time and talent to the Texas Young Lawyers Association, serving as its president; as a member of the Board of Directors of the
Texas Bar Foundation; and as chair of a Texas Supreme Court task force to expand the delivery of legal services. While we are sad that our district court is losing such a talented jurist, we can rejoice in the fact that a wider swath of Texas will directly benefit from her dedication, empathy, and knowledge. Please join me in saying, “Congratulations, Justice Crump.” Judge Rhonda Hurley Judge Rhonda Hurley has presided over the 98th District Court, also known as the Juvenile Court, for the last 16 years. Judge Hurley has been a fierce advocate for juvenile justice reform, as evidenced most visibly by the National Council of Juvenile and Family Court Judges awarding her the Innovator of the Year Award in 2022. The council cited Judge Hurley’s efforts in Travis County to “innovatively rethink, reimagine, and redefine justice for children and families” as advancing the council’s mission to create a society in which every family and child has access to fair, equal, effective, and timely justice. Specifically, Judge Hurley received the award for her efforts in implementing the Strengthening Opportunities for Achieving Reentry (or SOAR) court program. SOAR is operated by both the Travis County Juvenile Probation Department and the Juvenile Court. When youth commit crimes, they must be held accountable. However, in many cases, the justice system does not provide support for reintegration into the community. That’s where the SOAR program comes into play. SOAR protects the community by holding youth accountable for their actions and recognizing the impact their actions have had on victims. But SOAR also helps these youth develop skills, such as using digital technology, to succeed in life after leaving the juvenile justice system, with the ultimate goal of reducing recidivism. Judge Hurley has served as chair of the Travis County Juvenile Board since 2013 and previously served on the Travis County Welfare Board. She has also received
the National Certificate of Recognition for Child Advocacy from the American Bar Association. On behalf of the Austin Bar Association and on behalf of all families in Travis County, I want to thank you, Judge Hurley, for your service to the community and your belief that mistakes kids make shouldn’t prevent them from growing up to be productive and valuable members of society. AL
Thank you, Judge Hurley, for your service to the community and your belief that mistakes kids make shouldn’t prevent them from growing up to be productive and valuable members of society.
LAW FIRM, P.C. FAMILY LAW
We understand. We can help.
We’re Here. We’re Open. We’re Ready to Help. Video Conferencing and In-person Social Distancing Now Available
Divorce
Custody Mediations
Arbitrations
A Client-Centered Approach to Family Law
Attorney Jimmy Vaught, Civil Appellate Law by the Texas Board of Legal Specialization
Attorney Erin Leake Law by the Texas Board of Legal Specialization
AustinDivorceLawyer.com
512.605.0999 FEBRUARY 2025 | AUSTINLAWYER
29
Chief Justice Byrne Welcomes New Justices Crump, Ellis to 3rd Court of Appeals
Court of Appeals Chief Justice Darlene Byrne
T
he following is a transcript of Third Court of Appeals Chief Justice Darlene Byrne’s introduction at the investiture ceremo-
ny for new Justices Karin Crump and Maggie Ellis. Welcome, everyone. Justices Triana, Theofanis, and I welcome you to the Third Court of Appeals for the investitures of our two newest justices, Justice Karin Crump and Maggie Ellis. Although Justice Kelly is not able to join us today, she sends her best to our new colleagues. We welcome all of you - family, friends, supporters, colleagues, Third Court of Appeals staff, the Austin Bar Association staff, and attorneys - to this celebration. In preparation for today, I could not ignore the fact that this celebration is being held on January 6. On this day in our recent history, the core of our democracy was challenged greatly, yet we still stand. The rule of law still stands, and those of you in this room make that happen and, on your
shoulders, lies the heavy burden of ensuring our system of justice continues to stand as an independent branch of government, providing checks and balances to our other two branches of government while protecting our laws and Constitution. I am also visually reminded of how far we have come in the legal system since 1960 - the year I was born. In 1959 Ruth Bader Ginsberg was graduating from law school. She later said: When I graduated from law school in 1959, there wasn’t a single woman on any federal bench. It wouldn’t be a realistic ambition for a woman to want to become a federal judge. It wasn’t realistic until Jimmy Carter became our president. Although there had been a few women and a few judges with different racial and ethnic identities
on the federal benches prior to Jimmy Carter, he was the most prolific president in our history to diversify the federal court bench via gender, ethnicity, and race. One of his appointments was of RBG to the federal bench in D.C. in 1980, which paved the way for her later appointment to the U.S. Supreme Court as appointed by President Clinton. As we celebrate President Carter’s legacy and life this week, we also celebrate the first time the Third Court of Appeals has all women on its benches. Our history has included all male justices on its benches from its inception in 1892 to 1986 (94 years), when Marilyn Aboussie from San Angelo was appointed to the Third Court of Appeals as its first woman justice, and in 1998 she was elected to be its first woman chief justice. I am the second. Since
PARALEGAL TRAINING FROM UT AUSTIN Start a paralegal journey on your terms. UT Austin’s self-paced Paralegal Certificate Program provides indepth training in essential legal areas, with enrollment available anytime. Boost your legal career in just 5 months with our instructor-led program – perfect for aspiring paralegals.
Attend a free information session, or visit:
professionaled.utexas.edu/s/paralegal
30
AUSTINLAWYER | FEBRUARY 2025
her time, the court has had a mix of genders on its benches. No doubt we will return to that mix of genders sometime in the future, but for now, this new day has come and an array of hardworking, knowledgeable, and duty-minded women justices are here to serve you, and we are so honored to do so. Thank you for the opportunity. Also thank you to the Austin Bar Association for providing all the support for this investiture and for the reception afterward. AL
An array of hardworking, knowledgeable, and duty-minded women justices are here to serve you, and we are so honored to do so. Thank you for the opportunity.
LEFT PHOTO: Third Court of Appeals Chief Justice Darlene Byrne swears in new Justice Karin Crump. RIGHT PHOTO: Chief Justice Byrne swears in new Justice Maggie Ellis.
partners:
associate attorneys: Arielle Rosvall, Coleen Kinsler
FEBRUARY 2025 | AUSTINLAWYER
31
Goodbye and Hello: Judges Retire, Take the Bench
(L-R): New Third Court of Appeals Justices Karin Crump and Maggie Ellis; new Justice of the Peace #5 Tanisa Jeffers, new Criminal Court Magistrates Craig Moore and Jana Ortega; new 353rd District Court Judge Sherine Thomas; and new 98th District Court Judge Sandra Avila Ramirez.
B
elow are the remarks of Austin Bar President Mary-Ellen King during the recent inverstiture ceremonies for the new Third Court of Appeals justices, Travis County criminal magistrates, and district court judges. Jan. 6, 2025 Investitures for Third Court of Appeals Justices Karin Crump and Maggie Ellis Thank you all for coming out today as we honor the two new justices who will join the Third Court of Appeals. Justice Karin Crump is wellknown among the Austin Bar Association as the co-founder of the Leadership Academy, along with Past President David Courreges. Justice Crump is a dedicated mentor and donates her time to serve as the judicial liaison for the Youth Justice Alliance, a nonprofit that provides high-school students throughout Texas the opportunity to take part in four-year paid fellowships. The goal of the program is to diversify the legal profession. Judge Crump has also donated her time and talent to the Texas Young Lawyers Association, serving as its president; as a member of the Board of Directors of the Texas Bar Foundation; and as chair of a Texas Supreme Court task force to expand the delivery of legal services. For those of you who aren’t familiar with Justice Maggie Ellis’ story, you really should talk with her. Suffice to say, she worked hard to graduate from Baylor Law School and to pass the bar. But as hard as she worked to become an attorney, she works just as hard to be a positive force in the community. A former
32
AUSTINLAWYER | FEBRUARY 2025
Travis County prosecutor and administrative law judge, she’s been in private practice since 2017. A mother of four, she’s past president of the Leander ISD PTA, a volunteer Spanish and English teacher, and a generous volunteer attorney for pro bono legal services. Of particular importance to her are juvenile justice matters. She has participated in the Supreme Court’s Children’s Commission on Child Welfare and Juvenile Law workgroups, and she currently serves as chair of the state bar’s Juvenile Law Section. I speak for everyone here today when I say congratulations to you both. We know you will be wonderful additions to the court and will fight for equal access to justice for everyone in Central Texas Jan. 9, 2025 Investitures for New Criminal Court Judges Thank you all for coming out today as we honor three new criminal court magistrates. Tanisa Jeffers is the new Travis County justice of the peace for Precinct 5. Prior to entering public service, Judge Jeffers worked as a criminal defense attorney for 20 years, primarily representing the indigent and mentally ill. She also has extensive experience representing abused and neglected children and children who may have been improperly removed from the home of their birth parents. In 2018 she was appointed associate judge of the Austin Municipal Court, as well as a magistrate judge for the county. Judge Jeffers is a dedicated public servant who is passionate about learning as much as she can about the judicial system here. With her experience in both criminal and civil
(L-R): New Travis County Justice of the Peace for Precinct 5 Tanisa Jeffers, Criminal Court Magistrate Craig Moore, and Criminal Court Magistrate Jana Ortega.
New Criminal Court Magistrate Craig Moore (left) with Travis County Constable for Precinct 5 Carlos B. Lopez.
matters, Judge Jeffers is a valuable addition to the Travis County judicial system. New criminal court magistrate Craig Moore is an attorney, a judge, and an educator. He’s a former
faculty member of St. Edward’s University and Concordia University, where he taught criminal law. As a current faculty member of Texas Law, he trains law students in courtroom presentation, witness examinations, and evidentiary objections. Before his teaching tenure, Judge Moore worked for 13 years as an assistant district attorney for Travis County, where he led the DWI Diversion Court and the Mental Health Diversion Court. Additionally, he’s generous with his time: He’s a former commissioner of the City of Austin’s Firefighters, Police Officers, and EMS Personnel Civil Service Commission and a former member of the board of director of Big Brothers Big Sisters of Central Texas. New criminal court magistrate Jana Ortega has worked as a criminal defense attorney since 2006. She’s also been an active participant in the community and local government
New 353rd District Court Judge Sherine Thomas (L) with 459th District Court Judge Maya Guerra Gamble.
New 98th District Court Judge Sandra Avila Ramirez is sworn in by Cliff Brown, Presiding Judge for the Travis County Criminal Courts and Judge for the 147th District Court.
initiatives: She’s a former director and chair of the board of the Sobering Center, which serves as an alternative to jail or an emergency room for individuals to recover from intoxication. The center also provides these individuals with followup resources as needed. Jana is a former chair of the Hispanic Issues Section of the State Bar, president of the Hispanic Bar Association of Texas, and chair of the HBAA Charitable Foundation. She’s also served on the board of Con Mi
new judge of the 353rd District Court. Judge Thomas previously served as Travis County’s executive attorney, supervising the county attorney’s office and administering a budget of $25 million. She was the first woman and first minority to serve in this role. Before that, she was director of litigation in the county attorney’s office, and before that the state court team lead. Through her roles in the public sector, Judge Thomas has gained extensive experience in civil
Madre, the Austin Criminal Defense Lawyers Association, the Lawyer Referral Service of Central Texas, and the Texas Bar Foundation. Everyone, please join me in welcoming these three new wonderful additions to the Travis County judicial system. Jan. 10, 2025 Investiture for New 353rd District Court Judge Sherine Thomas Thank you all for coming out today as we honor Sherine Thomas,
legal matters at both the trial and the appellate levels. She’s also responsible for securing the largest settlement ever received by Travis County for an environmental case - $3.5 million for the pollution of Hamilton Pool by developers. Outside of her government work, Judge Thomas has also taught trial skills, such as crafting opening and closing statements and the use of technology in litigation, at Texas Law since 2011. She’s a former chair of
TEXAS CHAPTER MEMBERS IN AUSTIN
Scott Baker
Karl Bayer
Greg Bourgeois
(512) 988-3065
(512) 431-8376
(512) 477-9300
Patrick Keel
Thomas Mitchell (512) 476-4600
(512) 439-1500
(512) 293-0300
Kevin Oncken
Tom Collins
(512) 971-3172
Bert Pluymen
(512) 415-9111
Ben Cunningham
Todd Fine
Eric Galton
Mark Hawkins
Jeff Jury
(512) 477-9300
(512) 666-3935
(512) 477-9300
(512) 435-2300
(512) 477-9300
Jeff Rose
Michael J. Schless
Chris Stanley (512) 930-9775
Paul Van Osselaer (512) 593-5104
Stephen Yelenosky
(512) 637-0931
(512) 476-5507
(512) 444-2226
Check preferred available dates & schedule online in seconds - for FREE
Visit our TX Chapter at www.TexasNeutrals.org Visit our National Database of over 1000 top litigator-rated mediators & arbitrators at www.NADN.org
FEBRUARY 2025 | AUSTINLAWYER
33
HOUSTON AUTO APPRAISERS IACP CERTIFIED AUTO APPRAISAL SERVICES – NATIONWIDE www.HoustonAutoAppraisers.com www.BOCAA.org – Become an IACP Certified Auto Appraiser Office:1-877-845-2368 Cellphone: 832-279-2368 Email: Roy@HoustonAutoAppraisers.com DIMINISHED VALUE APPRAISALS
CAR DEALER FRAUD LAWSUITS
BONDED TITLES & SURETY BONDS
TOTAL LOSS APPRAISAL CLAUSE
COURT EXPERT WITNESS SERVICES
TITLE TRANSFERS / ESCROW SERVICES
LOSS OF USE CLAIMS / LOSS OR REVENUE
RESTORATION SHOP LAWSUITS
STANDARD PRESUMPTIVE VALUE (-$)
INSURANCE POLICY APPRAISALS
DTPA - DECEPTIVE TRADE PRACTICES ACT
MECHANICS LIEN SERVICES
CERTIFIED BANK LOAN APPRAISALS
MAGNUSON-MOSS WARRANTY CLAIMS
AUCTION TITLES / LOST TITLE ISSUES
DIVORCE / PROBATE / ESTATE APPRAISALS
BREACH OF CONTRACT CLAIMS
ASSIGNED VIN NUMBER / CHASSIS NO’S
LARGE LOSS CLAIMS OVER $1 MILLION
CONSUMER PROTECTION SERVICES
AUTO TITLE FRAUD / COD / LITIGATION
IRS 8283 TAX DONATION APPRAISALS
DEALERSHIP OUT OF BUSINESS ISSUES
GRAY MARKET VEHICLE TITLE TRANSFER
FLOOR PLAN FINANCING APPRAISALS
CERTIFIED MEDIATOR & ARBITRATOR
BOAT / TRAILER / MOTORCYCLE TITLES
HoustonAutoAppraisers_halfpg-horiz_SCM2407.indd 1
5/3/24 10:59 AM
Local Solutions. Global Reach. 34
AUSTINLAWYER | FEBRUARY 2025
Austin Habitat for Humanity. She’s an integral part of the Travis County Women Lawyers’ Association, where she serves as the chair of the Women Empowering Leadership in the Law Summit, as well as immediate past chair of the South Asian Bar Association of Austin. Please join me in congratulating Judge Sherine Thomas. Jan. 24, 2025 Investiture for New 98th District Court Judge Sandra Avila Ramirez A native of the Rio Grande Valley, Judge Sandra Avila Ramirez is a graduate of St. Edward’s University and Texas Tech School of Law. The first in her family to graduate high school, Judge Avila Ramirez spent 25 years as a practicing attorney before being elected to the 98th District Court. She gained extensive jury trial experience while at the DA’s office and was fortunate enough to experience practicing law both as a prosecutor and defense attorney. Her commitment to public service began as a volunteer firefighter and EMS first responder at 20 years of age, mentoring at-risk children in college and law school as well as volunteering at a local rape crisis center. After obtaining her law degree, Judge Avila Ramirez continued her public service path by working at the Cook County State’s Attorney’s Office in Chicago, providing legal services to family violence survivors and children as the Children’s Rights Manager for Legal Aid, assisting crime victims seek justice at the Travis County District Attorney’s Office, and establishing a criminal defense practice with an almostexclusive caseload of indigent, Spanish-speaking clients in both the adult and juvenile justice systems. While in private practice, Judge Avila Ramirez represented multiple clients pro bono, assisting college and high school students with criminal matters and families with Guardianship matters. Through the years her charitable contributions focus on organizations serving the most vulnerable populations including food banks, those providing indigent defense such as Texas RioGrande Legal Aid, VLS, Planned Parenthood and those assisting the unhoused including Caritas, among others. AL
ADVERTISERS
Apple Leasing......................................................................................................6 Armbrust & Brown PLLC...............................................................................26 Attorney's First Insurance..............................................................................13 Bollier Ciccone LLP............................................................................................9 Broadway Bank - Holdsworth & Nicholas, Inc......................................BC Butler Snow LLP................................................................................................ 27 Cofer & Connelly, PLLC....................................................................................5 Constable 5........................................................................................................19 Foster Global, LLP.............................................................................................. 4 Hargett Mediation - Reed, Claymon, Meeker & Hargett, PLLC.........7 Houston Auto Appraisers.............................................................................34 JAMS....................................................................................................................34 Knolle, Holcomb, Callahan & Taylor...........................................................13 Lakeside Mediation Center..........................................................................28 Laurie Ratliff LLC............................................................................................. 20 Law Office of Scott Herlihy............................................................................16 Law Office of Thomas Esparza, Jr., P.C..................................................... 3
FAST.
LawPay.............................................................................................................. IFC Momentum Independent Network.............................................................11 Noelke Maples St. Leger Bryant, LLP.........................................................31 Patrick Keel.........................................................................................................17 Rose Resolution Group....................................................................................9 Scott Baker Mediation, LLC.........................................................................23 She Spies Private Eye, Inc..............................................................................14 Slack Davis Sanger..........................................................................................25 Special Mission Concepts..............................................................................15 Texas Lawyers Insurance Exchange.........................................................35 The National Academy of Distinguished Neutrals...............................33 The Snell Law Firm...........................................................................................21 UT Austin Center for Professional Education The University of Texas at Austin ............................................................ 30 Vaught Law Firm.............................................................................................29 West, Webb, Allbritton & Gentry, PC.........................................................19
You wanted fast, convenient, reliable Texas legal malpractice insurance, with exceptional customer service, online applications, 24-48 hour turnarounds and continually prompt service. We listened.
Be Heard.
TLIE.ORG or (512) 480-9074 5_5625 x 6_75in_Austin Lawyer_TLIE FAST Ad_2024.indd 1
11/26/24 9:47 AM
FEBRUARY 2025 | AUSTINLAWYER
35
W E A LT H & P R I V A T E B A N K I N G
Customized Lending Solutions Just for You. At Broadway, we craft your banking experience with your best interests in mind. Our Private Banking team provides premium modern banking and customized lending solutions curated specifically for your personal and business needs. Our Private Bankers get to know you personally and professionally to tailor precise financial strategies just for you. Speak with a Private Banker today. broadway.bank/private • (512) 465-6564 Private Banking at Broadway Bank is subject to eligibility qualifications. Eligibility criteria may include financial, professional, and/or account verification and evaluation. Subject to change without notice. Member FDIC. Rev. 09/24 / 1488546319