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austinbar.org NOVEMBER 2024 | VOLUME 33, NUMBER 9

Kocurek Wins Judicial Excellence Award

udge Julie Kocurek of the 390th District Court has been named the 2024 recipient of the William H. Rehnquist Award for Judicial Excellence. The award is given by the National Center for State Courts (NCSC) and is one of the country’s highest judicial honors. The recipient is decided by the Governance and Nominations Committee of NCSC’s board of directors, which includes chief justices from around the country. The chief justice of the U.S. Supreme Court advises the selection of the recipient. The Rehnquist Award honors a state court judge who has demonstrated qualities of judicial excellence, including integrity, fairness, open-mindedness, knowledge of the law, professional ethics, creativity, sound judgment, courage, and decisiveness. Kocurek received the award specifically for her work around the country addressing judicial safety, a topic Kocurek knows all too well. In 2015, Kocurek was shot four times by a defendant who had previously appeared before her. She was hospitalized for 40 days and returned to work several months after the attack. The Judge Julie Kocurek Courthouse Security Act was passed by the Texas Legislature

“Attacks on judges and courts are attacks on the rule of law and threaten the integrity of the justice system. Judge Kocurek has taken bold steps to strengthen the judiciary in Texas and the nation.” - Texas Supreme Court Chief Justice Nathan Hecht

in 2017, providing for the protection of judges’ personal information and stronger courthouse security. “Judge Kocurek has overcome a life-changing event that no judge should ever have to endure,” said NCSC President Mary C. McQueen. “After an attempt on her life nine years ago, Judge Kocurek courageously returned to the bench and continued to excel in her duties. She has also used her lived experience to advocate for increased security for judicial officers in Texas and across the country.” Kocurek will receive the award from Chief Justice of the United States John G. Roberts, Jr., during an event at the Supreme Court of the United States in November.

On May 22, Kocurek was among the judicial leaders who spoke on Capitol Hill in support of the Countering Threats and Attacks on our Judges Act. The bill passed the U.S. Senate by unanimous consent on June 12. “For over 25 years, Julie Kocurek has served the people of Texas as a district judge, faithfully administering the law as one of the state’s best judges,” wrote Chief Justice Nathan L. Hecht of the Texas Supreme Court. “For more than eight of those years, her service has been at enormous personal, physical, emotional and family sacrifice…Retelling, reliving her story is hard for her and her family, but it commands attention. Attacks on judges and courts are attacks on the rule of law and threaten the integrity of the justice system. Judge Kocurek has taken bold steps to strengthen the judiciary in Texas and the nation.” Kocurek was appointed to Texas’ 390th Criminal District Court in Austin in 1999. She has presided over felony criminal cases for the last 25 years and is board-certified in criminal law. She served

Julie Kocurek is judge of Travis County’s 390th District Court. She is the 2024 recipient of the William H. Rehnquist Award for Judicial Excellence.

as the presiding administrative judge of Travis County Criminal Courts for four years and led efforts to ensure fair representation for indigent defendants, and she launched the county’s first felony mental health court. Kocurek’s contributions to the legal and local community include service with the Austin Bar Association, the State Bar of Texas, the Calvert Inn of Court, the Texas Association of District Judges, Do the Right Thing, Helping Hand Home, Dell Seton Medical Center, and numerous other organizations. Kocurek is a graduate of St. Mary’s University School of Law and the University of Texas at Austin. AL

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CONTENTS

AUSTINLAWYER NOVEMBER 2024 | VOLUME 33, NUMBER 9 AL AL

INSIDE 1

Kocurek Wins Judicial Excellence Award

IN EVERY ISSUE

20 Austin Bar Members Appear Before SCOTX to Deliver Oral Arguments

Briefs

Federal Civil Court Update

Austin Bar Celebrates Our Veteran Attorneys

Third Court of Appeals Civil Update

24 Texas Prison System’s Staffing Crisis and Outdated Technology Endanger Guards And Inmates

Third Court of Appeals Criminal Update

26 Residential Substance Abuse Treatment Program for Women to Open Next Fall

Texas Supreme Court Update

Local Jury Trial Verdicts

VLAP Launches New Volunteer Portal

32 North Carolina Seeking Out-of-State Lawyers to Help Victims of Hurricane Helene Recover

DEPARTMENTS 6

President’s Guest Column

Be Well

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AUSTINLAWYER | NOVEMBER 2024

PRESIDENT’S GUEST COLUMN

12-Step Recovery Absolutely Saved My Life BY CARLY GALLAGHER MURRAY, LAW OFFICE OF CARLY GALLAGHER MURRAY

i, I’m Carly, and by the grace of a Power much smarter than me, I have been in a 12-step recovery program since April 30, 2011. I have never publicly disclosed my sobriety despite it being a part of my life about which I am most proud, most protective, and for which I am most profoundly grateful. Yet, I have kept it private. That has been partly due to my being a bit loath to have a spotlight cast my way (unless I’m singing karaoke) and partly due to fearing your judgment. When I learned that this publication would feature local attorneys’ personal recovery stories aimed at destigmatizing alcohol and substance abuse, I knew I wanted to help. One does not have to look far to be confronted with the alarming reality of alcohol abuse in the legal profession. A January 2019 American Bar Association

“Study on Lawyer Impairment” references several studies and articles dedicated to attorney-specific alcohol and substance abuse, with estimates of impaired lawyers ranging anywhere from 20 percent to greater than one-third (as compared with less than seven percent of the average American).1 What is more is that these figures preceded the COVID-19 Pandemic, which I must imagine subjects them to an unfortunate inflation. Ours is a profession gravely affected by alcohol and substance abuse, and ours is also a profession full of people too ashamed or too prideful or too wary of the stigma to get help. I know because I have been there. My story is not terribly interesting or unique, and the part of my story that qualifies me to write as “recovered” is not the most important part of my story. I am someone who works hard and has played hard. I went to law school with an overachieving bunch just like me who learned to unwind or socialize with drinks in hand, and then I joined a profession full of the same. We networked at happy hours and nursed our insecurities and anxieties and celebrated our victories with alcohol. Everything was an effervescent blur until the very predictable consequences stopped me nearly dead in my tracks. The way I endangered my own life and the lives of others

and compromised my own values and future is now quite astonishing to me through a sober lens. When confronted with my own inability to manage my drinking, I was both terrified–by my own capacity to ruin my life–and ashamed, because, at that time, I believed that it was a moral failing, or a shortfall of my willpower, or both. I now know better. For me, and I have said this many times when I have shared my story in recovery circles, I know I got to the planet this way. I tried in vain for years to control the amount of alcohol I ingested once I took a drink, or the way that I would seek out additional drinks after I took that first drink, or how I took that first drink at all knowing what consequences would follow. However, much like I cannot control that I am allergic to cedar pollen, I have zero control over the

way that my body and my mind react to alcohol. It is utterly demoralizing to believe that if you just tried harder, if you could just get this right, you could drink like a normal person only to be confronted with the shame of failing over and over and over again. I wish I could tell you that I realized the insanity of this on my own, that self-knowledge saved me, but it absolutely did not. My very best efforts at trying to control my drinking landed me at a rocky bottom. I have learned through a series of humiliations and heartbreaks that I am not someone who can safely drink any amount of alcohol. I say this without hyperbole: 12-step recovery absolutely saved my life. All I had to do was be willing to consider that I did not know what to do; willing to try something different; willing to

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ask for help; willing to follow suggested steps; willing to listen to others’ stories of despair and recovery; and, on the toughest days, just the willingness to be willing. Most importantly, I know that I need to be willing to help others, to try to show others flailing in that hopeless place where I used to be know that there is a different way–a much better way. I remember when I first entered recovery over 13 years ago, I would hear long-sober people speak of being grateful for their struggles, and I thought it was such a curious thing to say. I now understand that it is precisely that lived experience with the struggle to be sober and the experience of recovery afterward that gives me the ability to light the path and show someone else how I got out of the dark. And so I share this abridged version of my story with you here. I share it to contribute to the conversation and need to destigmatize alcohol and substance abuse in the legal profession; I share it so that we all know that we are not alone in this; and I share it to show you that recovery happens and gratitude, not shame, waits on the other side. AL

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ENDNOTES

1 “Study on Lawyer Impairment: The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” American Bar Association, January 18, 2019; citing Journal of Addiction Medicine, January/February 2016; see also “Addiction & Substance Abuse in Lawyers: Statistics to Know”, American Addiction Centers, June 21, 2024.

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BRIEFS New Members The Austin Bar welcomes the following new members: Jayla Andrulonis Christine Applegate Lara Bergeron Daniel Black Lisa Bradford Kendall Bryant Riley Caraway Jonathan Cooper Justin Cox Jake Davidowitz Kate Garza Matthew Hilderbrand Katy Lovett

TOP (from left): Anson, Ayers, Benesh, Burnett, Claymon, Friday. BOTTOM (from left): Merritt, Miller, Pledger, Senterfitt, Swift.

Iliana Martinez Zach McFarlane Tyler Moore Daniel Olds Samer Salman Jennifer Severn Zachary Sides Lex Townsley Amy Wright

ON THE MOVE Hutcheson Bowers is proud to announce that Sue Ayers has joined the firm. Sue expands the firm’s practice areas to include her thriving eminent domain practice. As a commercial litigator, Sue also adds a wealth of experience to the firm’s litigation practice. Shannon and Allison, the founders of Hutcheson Bowers, are excited to add Sue and her practice to the firm. “Sue is one of the sharpest lawyers I know. Not only are we adding an experienced commercial litigator to our existing financial services and employment practices, but we are adding a whole new practice area of eminent domain. Our energy clients will benefit from that new offering,” said Shannon Hutcheson. Allison Bowers added, “Shannon and I have known Sue since we all started practicing law together at Baker Botts more than 20 years ago. The three of us have remained close and celebrated all of Sue’s legal accomplishments with her. We share the same fundamental values and focus on client service.” KUDOS Congratulations to the following, who were among those named by Texas Lawyer as “Lawyer of the Year” in their respective practice fields in and around Austin: Thomas K. Anson Energy Regulatory Law Tom Anson practices state and

AUSTINLAWYER | NOVEMBER 2024

federal energy and utility law at Clark Hill. He assists companies and governmental bodies on regulatory, transactional, and litigation matters involving electricity and other infrastructure industries. W. Stephen Benesh Litigation - Banking and Finance Steve Benesh is a seasoned business litigator in his 36th year of practice at Bracewell. He currently serves as president of the State Bar of Texas. Michael L.R. Burnett Family Law Michael Burnett is a shareholder at Burnett Turner. He is certified in Family Law by the Texas Board of Legal Specialization and a Fellow in the American Academy of Matrimonial Lawyers. Michael is an experienced trial lawyer in the areas of family law. He spent his first decade of legal practice in complex commercial and business litigation, giving him a unique advantage in dealing with marital estates involving valuation, tracing, and characterization issues. Jennifer B. Claymon Healthcare Law Jennifer Claymon offers more than 25 years of legal experience representing health care entities in Texas. Board-certified in Health Law, Jennifer focuses on administrative and health law related to hospitals, physicians and

other health care providers, and she advises health care clients on a wide range of organizational and regulatory issues. Jennifer has worked extensively with health care facilities in drafting and revising governing body bylaws and medical staff bylaws, compliance plans, employee handbooks and policies and procedures. Jonathan P. Friday Family Law Mediation Jonathan Friday is a partner at Friday Milner Lambert Turner. He devotes the majority of his time working on high-net-worth divorces dealing with business valuations, commercial property appraisals, separate property tracing, trusts, unique employee incentive plans, and other complex legal matters in and around Central Texas. His clients have included former NFL players, PGA golfers, NFL team owner, songwriters and musicians, restaurant owners, trust fund beneficiaries, developers, and many other successful business owners, public officials, entrepreneurs, executives, doctors, lawyers and their spouses. Laura M. Merritt Labor Law Management Laura is a partner at Boulette Golden & Marin and is certified in Labor and Employment Law by the Texas Board of Legal Specialization. Representing employers in a wide range of employment

and labor areas, Laura’s practice includes litigation, training, counseling, collective bargaining and other labor union-related matters, and negotiating definitive and ancillary employee-related agreements in corporate transactions. Robert D. Miller Government Relations Practice Robert Miller is a partner at Locke Lord and chair of the firm’s Public Law Section. He has been named one of the top two lobbyists in Texas by Capitol Inside, and he has lobbied local, state and federal governments on behalf of public and private concerns for more than 30 years. One of his greatest contributions was helping to keep the Houston Astros in Houston by contributing to the creation of a Sports Authority, which led to the construction of a retractable-roof stadium. Robert has also held numerous leadership positions in civic organizations, including serving as chairman of the Metropolitan Transit Authority of Harris County, Texas.

James L. Pledger Financial Services Regulation Law James Pledger is a partner at Jackson Walker. With more than 35 years of experience, his practice focuses on the regulation and operation of banks, savings banks, credit unions, bank holding companies and mutual holding companies, financial institution public and private equity and debt offerings. Barry R. Senterfitt Insurance Law Barry Senterfitt is a shareholder at Greenberg Traurig, where his practice focuses onthe insurance and managed care industries. His practice includes assisting clients with acquisitions and mergers of insurers, HMOs and insurance agencies; holding company transactions for insurers and HMOs, including state insurance holding company act compliance; HMO formation and licensure; insurance company formation and licensure; redomestications of insurers; demutualizations and

other complex corporate reorganizations; financial and reinsurance issues for insurers and HMOs; and plans of rehabilitation for insolvent or troubled insurers. Whitney L. Swift Energy Law Whitney Swift is a partner at Bracewell, where his practice focuses on advising industrial companies on air quality matters, such as state and federal new source review permitting and Ti-

tle V operating permit matters. In connection with that permitting work, he has represented applicants in contested permit matters before the Texas Commission on Environmental Quality (TCEQ) and the Texas State Office of Administrative Hearings (SOAH).

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BE WELL

Attorney Mental Health After Retirement: A Hidden Crisis and Healthy Ways to Transition BY ERIC ROBERTSON, GORANSON BAIN AUSLEY

he legal profession is often associated with prestige, financial success, and intellectual rigor. However, behind the veneer of professional accomplishment, many lawyers grapple with intense pressures, burnout, and stress throughout their careers. When they retire, these challenges often don’t disappear. In fact, for many, retirement can exacerbate underlying mental health and substance abuse issues, leading to a crisis that demands attention. This article explores the mental health and substance abuse issues prevalent among retired lawyers and outlines healthy ways to transition from the practice of law to a fulfilling post-retirement life. The Unique Pressures of a Legal Career Practicing law is a demanding career that often requires long hours, a high level of responsi-

bility, and continuous exposure to high-stakes situations. Many lawyers are perfectionists, driven by the need to win cases, meet clients’ needs, and navigate a competitive field. This constant pressure can result in chronic stress, anxiety, and depression. Furthermore, the adversarial nature of the profession can create a combative mindset, leaving lawyers emotionally drained and isolated. Studies have shown that lawyers are more likely to experience substance abuse and mental health issues compared to other professions. This often stems from the inability to cope with the professional and emotional demands of their work. Retirement: An Intensified Struggle For many lawyers, retirement does not provide the relief from stress that they might expect. In fact, it can magnify feelings of purposelessness, loss of identity, and isolation. Many lawyers identify closely with their profession, and upon retirement, they may struggle with a diminished sense of self-worth or a lack of direction. Suddenly finding themselves without the structure, status, and intellectual stimulation of their

fessional accountability can make it easier to indulge in harmful behaviors. Alcohol is often used as a coping mechanism for feelings of boredom, anxiety, or loneliness. In some cases, lawyers may begin abusing prescription medications or illicit substances after retirement, particularly if they are struggling with chronic physical pain or health issues related to aging. The combination of mental health struggles and easy access to substances can create a dangerous cycle that is difficult to break without intervention.

careers, retired lawyers may feel isolated and disconnected. This loss of identity can lead to increased rates of depression, anxiety, and in some cases, substance abuse. The emotional void left by the absence of work can also lead some to self-medicate with alcohol or drugs, further complicating their mental health. Substance Abuse Among Retired Lawyers Substance abuse is one of the most common ways retired lawyers cope with their mental health struggles. The legal profession’s well-documented culture of heavy drinking often carries over into retirement, where the lack of pro-

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faced by retired lawyers, it’s important to adopt strategies that promote mental, emotional, and physical well-being. Below are several healthy ways to transition into retirement while safeguarding one’s mental health: 1. Plan for Retirement Early One of the most important ways to ensure a smooth transition into retirement is by planning for it early. Lawyers should not only focus on financial planning but also consider how they will fill their time and maintain a sense of purpose. Whether it’s through part-time consulting, mentoring, or exploring new hobbies, having a plan in place can help prevent feelings of aimlessness and loss of identity. 2. Pursue Meaningful Activities Retirement offers an opportunity to engage in activities that bring fulfillment and joy. Many retired lawyers find satisfaction in giving back to their communities through volunteer work, teaching, or pro bono legal work. Others may take up hobbies they were unable to pursue during their ca-

reers, such as travel, writing, or the arts. The key is to find meaningful ways to stay engaged and mentally stimulated.

health issues and build coping mechanisms for the transition into retirement.

3. Stay Socially Connected Maintaining strong social connections is crucial for combating the isolation that often comes with retirement. Lawyers should prioritize staying connected with family, friends, and former colleagues. Joining professional associations, alumni groups, or social clubs can also provide opportunities to stay socially active and engaged.

5. Address Substance Abuse Early If substance abuse becomes a concern, it is important to seek help as early as possible. Addiction treatment programs, support groups, and counseling can provide the tools necessary to overcome substance abuse and build a healthier lifestyle. For retired lawyers, acknowledging the issue and seeking help is a vital step toward recovery.

4. Prioritize Mental and Physical Health Many lawyers spend their careers neglecting their mental and physical health due to the demands of the profession. Retirement is a chance to reverse this trend by prioritizing self-care. Regular exercise, a balanced diet, and adequate sleep can have a profound impact on both mental and physical well-being. Additionally, seeking therapy or counseling can be an effective way to address any lingering mental

6. Consider Professional Counseling Given the mental health challenges that can arise during retirement, professional counseling can be an invaluable resource. Many therapists specialize in helping individuals navigate life transitions and can provide retired lawyers with the tools to manage anxiety, depression, and other emotional difficulties. Therapy can also offer a safe space to explore new identities and discover meaning beyond the practice of law.

Conclusion Retirement from the legal profession is a significant life transition, and for many lawyers, it comes with mental health and substance abuse challenges. However, with proper planning and a focus on maintaining a healthy, fulfilling lifestyle, these challenges can be effectively managed. By embracing new opportunities, staying connected with others, and prioritizing their mental and physical well-being, retired lawyers can enjoy a fulfilling and healthy post-retirement life. AL Eric Robertson is a Licensed Professional Counselor – Associate under the supervision of Lisa Blackwood, MS, MA, LPC-S, LCDC and practices with his wife Deborah at Robertson Counseling & Therapy in Austin where he focuses on working with working professionals and men. He is a partner in the Austin office of Goranson Bain Ausley, has practiced family law for over 32 years, and has successfully transitioned from the fulltime practice of law.

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AUSTIN YOUNG LAWYERS ASSOCIATION

Creating Space for Young Attorneys to Speak and Share Their Expertise BY JENNA MALSBARY, PRESIDENT-ELECT

t the AYLA board retreat in early August, AYLA President Emily Morris expressed that one of her goals this year is inclusion and prioritizing CLEs for AYLA members. With that end goal in mind, AYLA is intentionally recruiting young lawyers interested in speaking on their area of expertise on our panels and as CLE presenters. Including young lawyers in presentations and panels will encourage them to become part of the local bar and make them feel more welcome as members. This could lead to a more active membership and spark potential interest in participating in other events as they are introduced to more members and the variety of events that AYLA and the Austin Bar offer. Creating a broader repertoire of speakers who are available and willing to speak will also help take the pressure away from having to go to the same presenters who are asked to speak frequently. AYLA’s hope is that by creating the space and setting the stage for our brilliant and hardworking young attorneys, more doors will open for additional speaking engagements and new opportunities for these youthful aspiring practitioners who are interested in speaking early in their career. Not only do the speakers get the opportunity to practice and improve their public speaking skills, but they also dedicate time to coming up with a topic that meets CLE criteria, prepare the 12

AUSTINLAWYER | NOVEMBER 2024

script and/or PowerPoint, and present to a room full of fellow attorneys, judges, and leaders. Taking opportunities to speak in these forums can boost a young lawyer’s confidence in their skills and abilities. AYLA also offers a diverse array of speaking opportunities that are not just for CLEs. In years past, AYLA has planned and participated in the Trial Institute, conferences, and, this year, the Texas Bar Foundation Video Project “Voir Dire for Pro Se Litigants,” which will be premiering soon. There are so many opportunities to include young lawyers as speakers, and AYLA hopes to give aspiring speakers the boost needed to get their name out there and to be considered for other speaking opportunities. Giving young lawyers opportunities to speak at AYLA events creates a chance for them to demonstrate their skills to current or potential mentors who can help them learn best practices and grow with each opportunity that arises. It is also a chance for career advancement signifying that they are ready to take on more significant responsibilities in educating others in their area of expertise. One of the best things about AYLA is that members do not have to be young. “Young” could also mean that you went to law school in a later chapter in life and decided to pursue the path of justice and advocacy. To be a member of Austin Young Lawyers, you must in your first five years of practice or under the age of 40. AYLA would love for you to attend one of our upcoming CLEs and to show support for AYLA speakers and presenters. To see AYLA’s upcoming CLE events, you can go to the AYLA calendar at www.ayla.org. A few of the CLEs with young lawyers that we have planned this year include:

• Practicing in Federal Court: Insights from Former Clerks. A panel discussion with Madison George Dornak, associate attorney with Michael Best & Friedrich, Ruben Cardenas, associate attorney with Ellis and Hodge, and Nicole J. Thacker, associate attorney with Germer, Beaman & Brown. • Appellate Basics CLE presented by Samantha McCoy, associate attorney at Lucosky Brookman. • Introduction to Trusts and Estates CLE presented by a panel including young lawyers Eric Nel-

son, attorney at Graves, Dougherty, Hearon, & Moody, and Melissa Pina, Trusts and Estates Officer with Cadence Bank. Are you a young lawyer ready to take the next step in being involved with the Austin Young Lawyers and speak on your area of practice, but haven’t had the opportunity because you are new? We would love to consider you as a speaker for one of our CLEs. Please email Debbie Kelly at debbie@austinbar.org if you are interested in speaking. AL

UPCOMING EVENTS SATURDAY, NOV. 16 AYLA SPIN Class 1 - 2 p.m. RIDE Indoor Cycling 117 Lavaca St. RSVP at austinbar.org.

THURSDAY, NOV. 21 Docket Call 5:30 - 7 p.m. Whiskey Tango Foxtrot 1501 E. 7th St. Sponsored by: Dorsett Johnson & Cisneros

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA’s Annual Evening with the Judiciary

he Austin Young Lawyers Association (AYLA) held its annual Evening with the Judiciary at Chateau Bellevue on Thursday, Sept. 26. For more than 20 years, this reception has been a signature event where AYLA members have the opportunity to share an evening of food and conversation with local, state, and federal judges. We want to thank our generous and loyal sponsors who make this event possible every year. Finally, thank you to everyone who attended and took advantage of this fantastic networking opportunity! We’ll see you again next year! AL Judge Megan Johnson (middle) of the State Office of Administrative Hearings with Travis County District Judges Maya Guerra Gamble (left) and Amy Clark Meachum (right).

Front (L-R): Government Rep. Jacqueline Navarro, LGBT Rep. Kelly Combs, AYLA Director Katie Fillmore, AYLA Secretary Lena Proft, AYLA President Emily Morris. Back (L-R): AYLA Director Amy Rodriguez, Solo-Small Firm Rep. Emma Thomson, AYLA Directors David Woolbert, Ben Evans, Jasleen Shokar, Alex Conant, and Past President Sarah Harp.

(L-R): Justin Cox, Daniel Olds, AYLA Secretary Lena Proft, Cathy Garza, Austin Bar Past President Justice Chari L. Kelly, Travis County District Judge Jessica Mangrum, Rachel Rutter, Tonia Lucio, and Josh Eames.

25th Annual

Evening Judiciary WITH THE

Thank You to our Sponsors! Premier Platinum Loewy Law Firm | Thomas J. Henry Law | Weisbart Springer Hayes Travis County District Judges Catherine Mauzy and Laurie Eiserloh (middle) with Tori Harrison (right) of DuBois Bryant & Campbell and James Hatchitt (left) of Weisbart Springer Hayes.

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Friday Milner Lambert Turner | McGinnis Lochridge | Sandoval & James

Gold Bollier Ciccone Diggs & Sadler Graves Dougherty Hearon & Moody

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Chamberlain Hrdlicka | Haynes and Boone | Guerra

Cain & Skarnulis Hanna & Plaut Jackson Lewis Naman Howell (L-R): Travis County District Judges Maria Cantu Hexsel, Selena Alvarenga, and Karen Sage.

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Noelke Maples St. Leger Bryant Rivers McNamara The Tomlinson Firm

(L-R): Travis County Probate Judge Guy Herman and U.S. District Judge Robert Pitman. NOVEMBER 2024 | AUSTINLAWYER

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 September 2024. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

> ADMINISTRATIVE LAW: Department of Labor’s minimum salary requirement did not exceed its delegated power to interpret the Fair Labor Standards Act’s “White Collar Exemption.” Mayfield v. United States Department of Labor, 2024 WL 4142760 (5th Cir. Sept. 11, 2024). In Loper-Bright, the Supreme Court jettisoned Chevron deference. But Loper-Bright did not disturb Congress’s power to delegate discretionary authority to agencies, including authority to interpret statutory provisions. A challenge to an agency’s exercise of that interpretive authority is judged by referencing the terms of the delegation, not by how a court would have interpreted the provision. In this case, Mayfield, a small business owner, challenged a Department of Labor (DOL) rule that increased the minimum salary threshold for the “White Collar Exemption” from FLSA overtime and minimum wage requirements. The exemption applies to employees working in a bona fide executive, administrative, or professional capacity. Mayfield did not challenge the 14

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specifics of the salary threshold or claim that the level set by the DOL was arbitrary. Instead, his argument was that the DOL had no statutory authority to impose a salary threshold for the White Collar Exemption at all. Rejecting Mayfield’s challenge, the Fifth Circuit began with FLSA’s delegation of authority to the DOL to “define[] and delimit[]” the terms of the White Collar Exemption. The Court explained that the plain meaning of “define” means setting forth the meaning of a word, while “delimit” means establishing boundaries. The Court concluded that DOL’s imposition of a salary threshold is consistent with its authority to both define and delimit who qualifies as a bona fide executive, administrative, or professional employee under the FLSA. The Court reasoned that the DOL’s salary threshold serves as a useful proxy for identifying which employees are truly working in high-level professional or executive roles, consistent with the “white-collar” nature of the exemption. The court rejected Mayfield’s argument that the DOL could only define the exemption in terms of job duties, finding that salary is a reasonable criterion for determining who qualifies for the exemption. The Fifth Circuit cautioned, however, that an agency’s use of delegated interpretative authority to impose requirements with no rational relationship to the text and structure of the statute or that effectively replace the statutory “would raise serious questions.” ARBITRATION: Arbitral tribunal had contractual authority to correct computational errors and authority to determine what constituted a computational error in the first instance. RSM Prod. Corp. v. Gaz du Cameroun, S.A., 2024 WL 4231885 (5th Cir. Sept. 19, 2024). RSM and Gaz du Cameroun (GdC) entered a joint venture to explore and develop hydrocarbons in Cameroon’s Logbaba Block. The parties then disputed the proper calculation of the “Payout” date, which marked when GdC would recoup its drilling costs and RSM

would begin receiving 40 percent of the venture’s revenue. The parties arbitrated the dispute under International Chamber of Commerce (ICC) Rules, as provided by the agreements. The Tribunal issued a Partial Final Award, siding with RSM and awarding RSM $10.5 million in damages. Following this award, GdC requested corrections to the Tribunal’s decision, arguing that the Tribunal had improperly included damages for claims that should have been resolved differently. The Tribunal issued an Addendum Award, reducing RSM’s damages to $6.5 million, largely agreeing with GdC’s corrections. RSM then sought to vacate part of the Addendum Award in district court, claiming that the Tribunal had overstepped its authority by revisiting substantive decisions, rather than merely correcting computational errors. The judicial dispute centered on ICC Rule 36—which allows postaward correction only for errors of a clerical, computational, typographical, or similar nature—and the scope

of the Tribunal’s discretion to interpret ICC Rules. RSM contended that the Tribunal had improperly re-evaluated substantive legal issues, which exceeded the Tribunal’s authority under Rule 36. The Fifth Circuit held that the Tribunal had the authority to interpret what constituted a “computational error” and concluded that the Tribunal’s interpretation was entitled to deference. The court reaffirmed that arbitrators are empowered not only to resolve disputes under the contract but also to interpret the scope of procedural rules. Finally, the Fifth Circuit concluded that RSM could not overcome the heavy deference owed to the Tribunal. The Court distinguished precedent that had vacated an arbitral award that was not “rationally inferable in some logical way from the agreement.” Here, the parties’ agreements incorporated the ICC rules, and the Tribunal purported to interpret ICC Rule 36 in amending its award. Thus, the Tribunal was arguably interpreting the agreements, which is all that is required. AL

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 September 2024. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of October 9, 2024.

> ADMINISTRATIVE LAW: Court affirms where party fails to rebut presumption of sufficient notice of a hearing. St. George Affordable Auto, LLC d/b/a Skyline Motors v. Tex. Dep’t of Motor Vehicles, No. 03-2300242-CV (Tex. App.—Austin Sept. 6, 2024, no pet. h.) (mem. op.). Department issued notices of violations, seeking a monetary

penalty and revocation of Skyline’s license. Department sought several continuances of the originally-set SOAH hearing to continue negotiations. Ultimately, Skyline failed to attend the reset hearing. The ALJ granted Department’s motion to dismiss, and Department revoked Skyline’s license and assessed a penalty. Department found that Skyline received legally-sufficient notice of the hearing. Department denied Skyline’s unverified motion for rehearing. In its suit for judicial review, Skyline argued that the notice finding was not supported by substantial evidence. The court of appeals noted that the finding is presumed supported by substantial evidence unless Skyline rebuts it. The court rejected Skyline’s argument that the record conclusively established that Department failed to provide notice of the reset hearing. Department was required to send notice of only the original hearing. SOAH was required to send orders on reset hearings. The court presumes SOAH sent orders granting continuances without contradictory evidence. Skyline failed to rebut the presumption. The court affirmed. FAMILY LAW: Court affirms where community-property valuation finding was within range of evidence. C.S.S. v. A.S., No. 03-23-00523CV (Tex. App.—Austin Sept. 12, 2024, no pet. h.) (mem. op.). Husband challenged the trial court’s real-property valuations

used to divide the community estate. Both the parties and their respective experts testified to opinions of value. Further, the tax-appraisal values were admitted without objection. The court of appeals concluded that the trial court’s real-property valuation determinations were within the range of the evidence and thus there was no abuse of discretion. Husband also challenged the trial court’s determinations of wife’s separate-property interests in two houses. The court concluded that wife met her burden to trace her separate property that was used to purchase portions of the properties in dispute. Finally, the court rejected husband’s argument that he was entitled to post-judgment interest on the lump-sum payments wife owed him to equalize the division of the community estate. Payments to equalize a community estate are not considered money judgments for purposes of accruing post-judgment interest. The court affirmed. GOVERNMENTAL IMMUNITY: Court affirms denial of UDJA claims barred by immunity.

lief contending the connection requirement did not apply to his property and alleging that City officials acted ultra vires in denying the COO. The trial court denied City’s plea to the jurisdiction but after a trial, dismissed Rooney’s claims. The court of appeals noted that the UDJA is not a general waiver of immunity and does not waive immunity for claims seeking declaration that a municipal ordinance does not apply as Rooney raised here. On Rooney’s ultra-vires claim, the court addressed the meaning of “served by the City’s water utility” as used in the ordinance. Rooney argued that the ordinance only applied to properties already connected to City’s water system, which his was not. The court concluded the ordinance applied to properties that were available for connection to the water system, which Rooney’s property was. Thus, City officials did not act ultra vires in requiring Rooney to comply with the connection requirement. The court affirmed. AL

Rooney v. City of Austin, No. 03-2300053-CV (Tex. App.—Austin Sept. 26, 2024, no pet. h.) (mem. op.). City denied Rooney’s request for a waiver of the requirement to connect to City’s water system to use a private well. City later refused to grant Rooney a certificate of occupancy on his house for failing to connect to City’s water system. Rooney sued City for declaratory and injunctive re-

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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 April 2024. The summary is an overview; please review the entire opinions. The subsequent history is current as of October 3, 2024.

> EVIDENTIARY SUFFICIENCY – Proving Defendant’s Identity in Probation-Revocation Proceedings. Evidence was sufficient to prove that Defendant who violated probation was the person who committed the underlying offense. Wade v. State, 693 S.W.3d 861 (Tex. App.—Austin 2024, no pet.). Defendant Wade pled guilty to possession with intent to deliver a controlled substance and was placed on deferred adjudication probation pursuant to a plea agreement. The State later filed a motion to adjudicate, alleging various probation violations. The trial court held a hearing on the matter and found Wade guilty. The sole issue on appeal was whether the State sufficiently proved that Wade was the same person who was placed on probation. Wade argued the following: (1) the State did not introduce any evidence that Wade was placed on probation; (2) the trial judge who heard Wade’s guilty plea was not the same judge who heard the State’s motion to adjudicate guilt; (3) none of the wit16

AUSTINLAWYER | NOVEMBER 2024

nesses at the adjudication hearing testified that they independently identified Wade as the same person who pled guilty; and (4) no expert testimony was presented regarding fingerprints. However, the appellate court disagreed with Wade, concluding that “other credible evidence was presented,” including Wade’s guilty plea, the probation file, and Wade’s recent arrest records, all contained matching identifiers such as her full name, her date of birth, her Social Security number, and her state identification number. Further, a data sheet was kept in the probation file that was created directly after Wade pled guilty, which included her contact information and date of birth, as well as a photo of Wade that her former probation officer testified she took of Wade at her second probation check-in. And defense exhibits admitted into evidence contained the same identifying information as the State’s exhibits with the same cause number, name, date of birth, and state identification number. Based on this evidence, the appellate court concluded that the trial court did not abuse its discretion by determining that the State met its burden to prove that Wade was the same person placed on deferred adjudication probation for the underlying offense. RIGHT TO CONFRONT WITNESSES – Forfeiture by Wrongdoing. The trial court did not abuse its discretion by granting the State’s motion for forfeiture by wrongdoing, thereby precluding Defendant from confronting complainant. Mohsin v. State, 691 S.W.3d 193 (Tex. App.—Austin 2024, pet. ref’d). Defendant Mohsin was charged with aggravated assault causing serious bodily injury to a family or household member, specifically his wife, who provided statements to the police concerning her injuries. Later, however, Defendant’s wife informed the State that she would not cooperate with its investigation, appear at trial, or testify against Defendant. Anticipating that she either would not appear or would appear and recant her sworn statement, the State requested that the

trial court admit her out-of-court statements at trial, arguing that Mohsin forfeited by wrongdoing his right to confront the witness. Following a hearing, the trial court agreed and admitted her statement, resulting in Mohsin’s conviction. On appeal, the appellate court concluded that the trial court did not abuse its discretion. First, the appellate court concluded that the State made a good-faith effort to secure the wife’s presence at trial. She was served by subpoena twice, including in person approximately three weeks before the start of trial. Second, the court concluded that the record was “replete with evidence that Mohsin engaged in wrongful conduct to prevent [his wife’s] testimony,” reflecting “an extensive history of abuse and harassment by Mohsin against” his wife. Finally, the court concluded that the witness’s unavailability was caused by Mohsin’s wrongful conduct. The appellate court, quoting from a recent opinion by the Court of Criminal Appeals, explained that, although “indirect

and attenuated consequences will not satisfy the causation condition for purposes of forfeiture,” Texas courts “have recognized that procurement or causation need not be proven directly, but may be established by inference” and that “[i]n cases involving long-term domestic relationships, various factors may support an inference that wrongdoing has caused unavailability.” In this case, Mohsin engaged in behavior that discouraged his wife from testifying, including the following: (1) pressuring her to sign an affidavit of non-prosecution; (2) erroneously assuring her that she could not be arrested or made to testify; (3) telling her to insist on his innocence to police and the trial judge; (4) offering her financial incentives not to appear at trial; and (5) threatening to report her to Child Protective Services if she cooperated with the investigation. Based on this evidence, the appellate court concluded that the trial court did not abuse its discretion by granting the State’s motion for forfeiture by wrongdoing. AL

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TEXAS SUPREME COURT UPDATE The following are summaries of selected opinions issued by the Texas Supreme Court in September 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.

> ADMINISTRATIVE LAW: Administrative Procedure Act Tex. Dep’t of State Health Servs. v. Kensington Title-Nev., LLC, ___ S.W.3d ___, 2023 WL 4373384 (Tex. App.—Austin 2023), pet. granted (Sept. 27, 2024) [230644]. The Administrative Procedure Act waives sovereign immunity in a suit seeking a declaration about an administrative rule’s “applicability.” The issue in this case is whether the request for declaratory relief challenges a rule’s application (how the rule applies) as opposed to its applicability (whether the rule applies). Kensington Title-Nevada, LLC acquired real property on which the occupant had abandoned stored radioactive waste. Kensington initiated decommissioning activities but stopped before completion. The Texas Department of State Health Services then fined Kensington for possessing the material without a license and for failing to decommission in a timely manner. Kensington challenged the fine through a formal administrative hearing. Concurrently,

Kensington sued the Department requesting a declaration that the administrative rule could not be applied to force a real property owner like Kensington to accept liability for radioactive materials abandoned on its property. The Department filed a plea to the jurisdiction arguing that Kensington failed to invoke the APA’s immunity waiver because it only seeks a determination about the rule’s application, not its applicability. The trial court denied the Department’s plea, but the court of appeals reversed and dismissed for want of subject-matter jurisdiction. On petition for review, Kensington contends that the appeals court’s failure to apply the immunity waiver rests on an improper rewriting of the request for declaratory relief. The Department’s response argues that dismissal was proper because (1) the court’s analysis was correct; and (2) Kensington lacks standing for want of a redressable injury. As to the latter, the Department asserts that the administrative action was based on Kensington’s exercise of dominion and control over the regulated materials, not ownership of real property. The Court granted the petition for review. PROCEDURE—PRETRIAL: Discovery In re Peters, ___ S.W.3d ___, 2024 WL ___ (Tex. Oct. 4, 2024) (per curiam) [23-0611]. This case involves the application of the Fifth Amendment priv-

ilege against self-incrimination to discovery requests. After drinking, Taylor Peters caused a multi-car crash that injured the plaintiffs. Peters was admitted to a hospital, where he told the responding police officer that he had visited two bars whose names he had forgotten, drank three beers, and remembered feeling “buzzed.” The officer noted that Peters appeared confused and disoriented. A breathalyzer test revealed that Peters had a blood-alcohol concentration above the legal limit. He was arrested and charged with intoxication assault with a motor vehicle. After suing Peters for negligence, the plaintiffs served interrogatories inquiring where Peters had been before the crash. They sought the names of the bars that served Peters alcohol in order to initiate a timely dram shop action. Peters invoked the Fifth Amendment and refused to provide the information. The trial court granted the plaintiffs’ motion to compel. The court of appeals denied Peters’ mandamus petition. The Supreme Court conditionally granted mandamus relief. The constitutional privilege against self-incrimination applies in civil litigation and can bar discovery, no matter how critical the need for that discovery is. Here, Peters’ discovery responses could be used against him in the criminal case by leading to evidence that Peters drank more than the three beers that he claimed. The Court rejected the plaintiffs’ argument that Peters waived the privilege by disclosing to the police that he

had visited two bars, drank three beers, and felt buzzed. The plaintiffs did not show a voluntary, knowing, and intelligent waiver of the privilege in the record; indeed, the officer’s notes about Peters’ condition cut against a voluntary waiver. AL

NOVEMBER 2024 | AUSTINLAWYER

LOCAL JURY TRIAL VERDICTS

September 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. Download the app today on either the App Store or the Google Play Store. CIVIL Robert Lindsay Duncan and Molly Duncan v. Estate of Cheryl Wheeler Sanders and Estate of Robert Reed Sanders Cause No: D-1-GN-16-002071 Judge: Amy Clark Meachum, 201st Civil District Court Dates: September 9 - 13, 2024 Attorneys: Plaintiffs: Cory W. Smith, Cory W. Smith, PLLC Defendants: Damon A. Goff, Goff Law Firm, PLLC Case Summary: Plaintiffs claim that the Defendant, Cheryl Sanders, wrote a malicious letter that stated the Plaintiffs committed corporate fraud and sent the correspondence to various persons/ organizations. The petition further claims, after an investigation, Cheryl Sanders recanted her story. Both Defendants tried to extort money from the Plaintiffs. Sometime during the pendency of the lawsuit, both Defendants died. A unanimous jury found that the Defendants committed an assault against the Plaintiffs. The jury further found that the Defendant, Cheryl Sanders did not maliciously prosecute the Plaintiff, Robert Lindsay Duncan. The damages awarded: Cheryl Wheeler Sanders to Robert Lindsay Duncan – past physical pain and mental anguish - $2 million; future physical pain and mental anguish - $450,000; to Molly Duncan – past physical pain and mental anguish - $3 million; future physical pain and mental anguish - $600,000; Robert Reed Sanders to Robert Lindsay Duncan – past physical pain and mental anguish $1.5 million; future physical pain 18

AUSTINLAWYER | NOVEMBER 2024

and mental anguish - $300,000; to Molly Duncan – past physical pain and mental anguish - $3 million; future physical pain and mental anguish - $1 million. Overlook at Lewis Mountain Community, Inc. v. John Speer and Sara Souerbry Cause No: D-1-GN-22-001344 Judge: Jan Soifer, 345th Civil District Court Dates: September 9 - 13, 2024 Attorneys: Plaintiff: Gregory Cagle, Cagle Pugh Defendants: Ben and William Broocks, Broocks Law Firm Case Summary: Plaintiffs claim that Defendants’ fence as constructed deviated materially from the location and design as approved by the architectural committee. A jury of 10 found that the Defendants Speer/Souerbry did not fail to comply with the declaration by construction a fence on the Defendants’ property without the prior written approval of the Architectural committee. The jury further found that the architectural committee did not determine that the fence at the Defendants’ property materially deviated from the fence as approved by the architectural committee. Margaret Lischka v. Joel Salinas and MV Transportation Cause No: D-1-GN-24-002137 Judge: Maya Guerra Gamble, 459th Civil District Court Dates: September 10 - 13, 2024 Attorneys: Plaintiff: Nick Wooten, DJC Law, PLLC Defendants: Jacqueline A. Gerber, Mayer LLP Case Summary: This case was transferred from county court to district court. The Plaintiff claims that on or about Feb. 2020, she was driving in downtown Austin when the Defendant Joe Salinas driving a Capital Metro bus rear-ended the Plaintiff.

Unanimous jury found that the Defendants were negligent. Damages awarded: Past physical pain - $50,000; future physical pain - $0; Past mental anguish $90,000; future mental anguish - $10,000; past physical impairment - $50,000; future physical impairment - $0; past disfigurement - $0; future disfigurement - $0. Rodrigo Lopez v. Althea Simon, Ind. and MV Transportation Cause No: D-1-GN-22-003133 Judge: Jessica Mangrum, 200th Civil District Court Dates: September 23 - 27, 2024 Attorneys: Plaintiff: Nicholas Wooten, DJC Law, PLLC Defendants: Jacqueline A. Gerber, Mayer LLP Case Summary: Plaintiff claims he was a passenger in a Capital Metro bus and was injured when the driver failed to stop at a red light and hit another vehicle. A jury of 10 found that the Defendants were negligent. They awarded the following damages: Past physical pain - $25,000; future physical pain - $0; past mental anguish - $25,000; future mental anguish - $0; past physical impairment - $25,000; future physical impairment - $0; past medical care expenses - $50,000; future medical care expenses - $0. The jury did not find gross negligence.

In The Interest of C.A.G., A Child Cause No: D-1-FM-24-000594 Judge: Daniella Dysetta Lyttle, 261st Civil District Court Dates: September 24 - 27, 2024 Attorneys: Petitioner: Perry Minton, Minton, Bassett, Flores and Carsey, P.C. Respondent: Rob Frasier, Goranson, Bain, Ausley, PLLC Case Summary: Petitioner father filed the Original Petition in Suit affecting the parent-child relationship. Respondent mother filed counter-petition. A jury of 11 awarded exclusive right to designate the primary residence of the child to the Respondent mother. CRIMINAL State of Texas v. Frank Estrada, III Cause No: D-1-DC-24-904077 Judge: Karen Sage, 299th Criminal District Court Dates: Aug. 27 - Sept. 3, 2024 Attorneys: State of Texas: Katherine West Defendant: Shara McDonald Dixon Case Summary: In 1997, the Defendant was indicted for aggravated sexual assault of the victim in concert with two other individuals. The jury found the Defendant guilty of Violation of Protective Order. [This case consolidated 3 separate felony cases and 1 misdemeanor case]

State of Texas v. Daverne Foy Cause No: D-1-DC-19-301573 Judge: Jon Wisser Dates: Sept. 9 - 11, 2024 Attorneys: State of Texas: Kate Hall Defendant: Jason Katims, Law Office of Jason Katims, PLLC Case Summary: In 1997, the Defendant was indicted for aggravated sexual assault of the victim in concert with 2 other individuals. The jury found the Defendant not guilty of the offense of Aggravated Sexual Assault. State of Texas v. Montavian Carlysle Cause No: D-1-DC-22-301556 Judge: Brenda Kennedy Dates: Sept. 16 – 19, 2024 Attorneys: State of Texas: Jason Rew-Hunter Defendant: Bristol Myers Case Summary: Defendant was indicted for shooting the victim in the head with a firearm. Jury convicted Defendant of aggravated assault with serious bodily injury with a deadly weapon. The jury sentenced the Defendant to four years in prison and declined to place him on community service.

State of Texas v. David Polonia Trinidad Cause No: D-1-DC-24-904004 Judge: Mike Denton Dates: Sept. 16 – 20, 2024 Attorneys: State of Texas: John D. Castro Defendant: Luis Ortiz, Travis County Public Defender’s Office Case Summary: Defendant was indicted for causing serious bodily injury to a child. The Defendant pled out after the jury informed the Court that they hit an impasse, 8-4, and did not believe they could reach a unanimous decision. The Court convicted the Defendant of five years at TDCJ. State of Texas v. Jason Liss Cause No: D-1-DC-22-500412 Judge: Chantal Eldridge, 331st Criminal District Court Dates: Sept. 16 – 19, 2024 Attorneys: State of Texas: Misa Mujevic Dzodic Defendant: Kleon Constatine Andreadis Case Summary: Defendant was indicted for causing bodily injury to a member of the Defendant’s family. He was convicted of assault

family violence and was sentenced to 20 years in TDCJ. State of Texas v. David Ontiveros Cause No: D-1-DC-22-202634 Judge: Selena Alvarenga, 460th Criminal District Court Dates: Sept. 16 – 24, 2024 Attorneys: State of Texas: Jazmine Smith Defendant: Krista Chacona Case Summary: Defendant was indicted for shooting his wife and stepson. Defendant claimed self-defense. He was convicted of capital murder of multiple persons and was sentenced to life in TDCJ.

vated kidnapping and two counts of sexual assault. Defendant was sentenced to at least 60 years in TDCJ. AL

State of Texas v. Dublais Vasquez Cause No: D-1-DC-23-302899 Judge: Melissa Goodwin Dates: Sept. 24 - 26, 2024 Attorneys: State of Texas: Robb Sheperd Defendant: Kate Hall Case Summary: Defendant was indicted for kidnapping an individual, hiding her then inflicting bodily injury on the individual. Defendant was convicted of aggra-

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AUSTIN BAR MEMBERS AT SCOTX

Austin Bar Members Appear Before SCOTX to Deliver Oral Arguments The Supreme Court of Texas convened Oct. 1-3, 2024, and heard oral arguments from several Austin Bar members.

Austin Bar Member Steven A. Fleckman Munck Wilson Mandala for Petitioner

Austin Bar Member Elizabeth G. “Heidi” Bloch Greenberg Traurig for Respondent/Cross-petitioner Bertucci v. Watkins Procedure-Appellate – Waiver These cross-petitions raise issues of briefing waiver and whether fiduciary duties are owed among business partners. Bertucci and Watkins founded several companies to develop lowincome housing projects. After many years of working together, Bertucci came to suspect that Watkins was misappropriating the companies’ funds and sought an accounting. Because of the dispute, certain company profits were placed in escrow, and eventually, Watkins sued for their distribution. Bertucci counterclaimed on behalf of himself and derivatively on behalf of the companies for theft and breach of fiduciary duty. Watkins maintains that Bertucci, now deceased, orally approved compensating Watkins with the allegedly misappropriated funds. The parties filed competing motions for summary judgment, and the trial court granted Watkins’ motion. The court of appeals, sitting en 20

AUSTINLAWYER | NOVEMBER 2024

banc, reversed. First, it held that Bertucci waived his appeal of the summary judgment on the derivative claims by failing to brief them. The court concluded fact issues precluded summary judgment on Bertucci’s individual claims. The court also held that Watkins’ testimony that Bertucci orally approved of the transactions should have been excluded under the Dead Man’s Rule, which precludes testimony by a testator against the executor in a civil proceeding. Both parties filed petitions for review. Bertucci argues that his brief should have been liberally construed so that appeal of the derivative claims was not lost by waiver. He also argues that the trial court erred in admitting an auditor’s report into evidence, alleging that it is unverified and unreliable. Watkins argues that he is entitled to summary judgment on the breach of fiduciary duty claim because, as limited partners in a partnership, Watkins did not owe Bertucci a fiduciary duty as a matter of law. Watkins further argues that the statute of limitations has run on Bertucci’s claims because the discovery rule does not apply. Finally, Watkins argues that his testimony about Bertucci’s oral approvals was corroborated and therefore admissible under the Dead Man’s Rule. The Supreme Court granted both petitions for review. Case documents can be viewed at https://search.txcourts.gov/ Case.aspx?cn=23-0329&coa=cossup. The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=qogJQ7EZn9g

Austin Bar Member Thomas R. Phillips Baker Botts for the second petitioner, Robert Ammons Pohl v. Cheatham Attorneys – Barratry This case raises questions about the extraterritorial reach of Texas’s civil barratry statute and whether barratry claims are subject to a twoor four-year statute of limitations. Mark Cheatham, a Louisiana plaintiff, hired Texas attorneys, Michael Pohl and Robert Ammons, to represent him in a wrongful-death suit. Cheatham later asserted civil barratry claims against Pohl and Ammons in Texas, alleging that the attorneys paid a sham financing company run by Pohl’s wife, Donalda, to offer him money for funeral expenses as an incentive to hire Pohl and Ammons. Pohl and Ammons filed motions for partial summary judgment, asserting that Cheatham’s claims were barred by a two-year statute of limitations. The trial court denied the motions, concluding that a fouryear statute of limitations applied. Pohl, Ammons, and Donalda filed subsequent motions for summary judgment, asserting that the barratry statute has no extraterritorial reach to conduct that occurred out of state. The trial court granted the motions. The court of appeals reversed and remanded, reasoning that the attorneys’ conduct occurred in Texas, but even if it had not, the statute can permissibly be extended to out-of-state conduct. Pohl, Donalda, and Ammons petitioned for review, arguing that the court of appeals impermissibly

extended the reach of the barratry statute and maintaining that such claims are subject to a two-year statute of limitations. The Supreme Court granted their petitions for review. Case documents can be viewed at https://search.txcourts.gov/Case. aspx?cn=23-0045&coa=cossup The recording of this argument can be found on YouTube at https:// www.youtube.com/watch?v=KQCciqv7Xzg

Austin Bar Member Kurt Kuhn Kuhn Hobbs for Petitioner

Austin Bar Member Jane Webre Scott Douglass & McConnico for Respondent 425 Soledad, Ltd. v. CRVI Riverwalk Hosp., LLC Real Property – Bona Fide Purchaser A main issue is whether a creditor’s bona fide protections pass to a subsequent purchaser if the property is purchased through a receivership sale rather than through foreclosure. A parking garage, hotel, and office building initially were under common ownership. The owner retained the garage and hotel but sold the office building, which was eventually acquired by 425 Soledad. The original owner and purchaser

executed an agreement making a certain number of parking spots in the garage available to the office building and its tenants. The agreement stated that it would run with the land and be binding on the parties’ successors and assigns, but it was never recorded. The garage and hotel were later sold to a purchaser who financed the transaction with two promissory notes. CRVI Crowne acquired the B note. When the new owner of the garage and hotel defaulted, Crowne chose to place the properties into receivership rather than foreclose on them. A related entity, CRVI Riverwalk, purchased the garage and hotel through the receiver. After Riverwalk became the owner of the garage and hotel, 425 Soledad requested parking spaces pursuant to the agreement made by the garage and hotel’s original owner. Riverwalk refused to provide the spaces, and 425 Soledad sued. Riverwalk argues that the parking agreement is unenforceable because Crowne was a bona fide creditor when it purchased the note without notice of the unrecorded agreement; then, when Riverwalk purchased the garage and hotel from the receiver, Crowne’s bona fide protections passed through to it. The trial court rejected these arguments and entered judgment for 425 Soledad after a bench trial. The court of appeals reversed. The court agreed with the trial court that the parking agreement is an easement, but it concluded that Crowne was a bona fide creditor and that Crowne’s status “sheltered” and passed through to Riverwalk when Riverwalk purchased the garage and hotel through the receivership sale. 425 Soledad petitioned the Supreme Court for review. It argues that because Riverwalk purchased the properties from the debtor’s receiver, and not from creditor Crowne in a foreclosure sale, that Crowne’s bona fide protections, if any, cannot shelter or pass through to Riverwalk. The Court granted the petition. Case documents can be viewed at https://search.txcourts.gov/Case. aspx?cn=23-0344&coa=cossup The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=BJEzGpu2oE0

Austin Bar Member Melissa Lorber Enoch Kever for the Realtors In re State Farm Mut. Auto. Ins. Co. Insurance – Insurance Code Liability The issue in this case is whether the trial court must sever and abate Insurance Code claims when a motorist sues her insurance company for underinsured motorist benefits and violations of the Insurance Code. Mara Lindsey alleges that she was injured in an automobile accident. Lindsey settled with the driver of the other vehicle for his insurance policy limit and then sought underinsured motorist benefits from State Farm. State Farm, through its claims adjuster, offered Lindsey far less than she claims she is entitled to under her policy. Lindsey sued State Farm and the claims adjuster, seeking a declaratory judgment that she is entitled to additional benefits and for violations of the Insurance Code. State Farm moved to sever and abate the Insurance Code claims until the underlying declaratory judgment action determines the amount of liability and damages caused by the allegedly underinsured motorist. Lindsey opposed the motion, arguing that bifurcation is the proper procedure for underinsured motorist cases, and discovery on the extracontractual claims is permitted against the insurer before the bifurcated trial. The trial court denied State Farm’s motion and the court of appeals denied mandamus relief. State Farm petitioned for a writ of mandamus from the Supreme Court. State Farm argues that the Insurance Code claims should have been severed and abated and that Lindsey is not entitled to discovery on those claims until she establishes that she is entitled to underinsured motorist benefits because the liability and damages caused by the underinsured driver exceeded the amount of the third party’s policy limits. State

Farm also argues that because the claims should have been abated, the trial court abused its discretion in refusing to quash the depositions of State Farm’s corporate representative and claims adjuster, who lack personal knowledge about the facts of the underlying accident. Finally, State Farm argues that the trial court abused its discretion by limiting State Farm’s access to Lindsey’s medical records when her medical condition is at issue. The Court granted argument on the petition

for writ of mandamus. Case documents can be viewed at https://search.txcourts.gov/ Case.aspx?cn=23-0755&coa=cossup The recording of this argument can be found on YouTube at https://www.youtube.com/ watch?v=qV4_Z218qjw AL

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NOVEMBER 2024 | AUSTINLAWYER

Austin Bar Celebrates Our Veteran Attorneys In honor of Veterans Day, the Austin Bar wishes to thank all of our veteran members. Dominic Castillo U.S. Air Force Veteran Dominic Castillo served in the U.S. Air Force as an Airman First Class from 2000 to 2002, where he specialized as a munitions systems apprentice focusing on precision guidance munitions. During his service, he earned the National Defense Service Medal, showcasing his commitment to his country. Dominic is not only a veteran himself but also a dependent of a veteran, enriching his understanding of the challenges faced by military families. He is actively involved with the Austin Bar Foundation’s Veterans’ Legal Assistance Program (VLAP) and serves as co-chair of the Husch Blackwell Veterans Employee Resource Group. Dominic is dedicated to providing pro bono legal services through initiatives like Free Legal Advice Clinics and guided pro se assistance. His multifaceted perspective as both a veteran and a family member enhances his ability to support fellow veterans in navigating legal challenges. Wayne Cavalier U.S. Army Veteran, Chief Warrant Officer 4 (1964 to 1994) Wayne Cavalier is a retired chief warrant officer 4 (CW4) with a distinguished military career in the U.S. Army, serving from 1964 to 1994. His dedication to service is matched by his commitment to his legal practice, where he focuses on providing valuable support to fellow veterans. Wayne actively participates in VLAP, offering pro bono legal services and guidance to veterans facing various legal challenges. His extensive military experience, including honors such as the Legion of Merit and the Meritorious Service Medal, allows him to approach each case with a profound understanding of the unique issues veterans encounter. Wayne is 22

AUSTINLAWYER | NOVEMBER 2024

Dominic Castillo, Wayne Cavalier (not pictured), Kyle Ryman, and Sandro Serra are just a few of the veterans the Austin Bar is proud to call members. These individuals are featured because they filled out the Austin Bar Military Service Survey sent out by the Austin Bar Foundation’s Veterans’ Legal Assistance Program in honor of Veterans Day celebrated every year in November.

also involved with organizations like the U.S. Army Warrant Officers Association and the Military Officers Association of America, further exemplifying his dedication to supporting the military community. Kyle Ryman U.S. Army Veteran Kyle Ryman served as a captain in the U.S. Army from 2009 to 2017, during which he earned numerous accolades, including the Bronze Star Medal with one Oak Leaf Cluster and the Meritorious Service Medal with one Oak Leaf Cluster. His military career included significant deployments to Afghanistan, where he served with the 159th Combat Aviation Brigade’s Pathfinder Company and later as aide-de-camp to the Deputy Commanding General for Operations. Kyle’s experience as an infantry officer has greatly informed his legal practice, where he focuses on supporting veterans through VLAP. He is an associate at McKool Smith, and he is passionate about providing pro bono legal services and is actively involved in initiatives like the Free Legal Advice Clinics and guided pro se assistance. Additionally, Kyle is a member of the Texas Law Veterans Alumni Association, further demonstrating his commitment to the military community.

Alessandro “Sandro” Serra U.S. Air Force Veteran Sandro Serra served as a senior airman in the U.S. Air Force from 2005 to 2009, where he worked as a linguist. Though he did not serve in any combat zones or special assignments, Sandro’s military experience instilled in him a strong commitment to public service. He actively participates in UT Law’s Veterans organizations, speaking regularly to students and recruiting veterans to join his firm, Pillsbury. Sandro is also a volunteer with VLAP, offering pro bono legal services in

various capacities. He contributes his expertise to Free Legal Advice Clinics, assists in preparing content for legal webinars, and offers guided pro se assistance. His passion for helping veterans extends beyond his professional work, making him an integral part of the veteran legal community. AL

Texas Prison System’s Staffing Crisis and Outdated Technology Endanger Guards And Inmates BY POOJA SALHOTRA, THE TEXAS TRIBUNE

exas’ sprawling prison and criminal justice system is facing a dangerous staffing crisis that puts inmates and staff at risk — and it could soon run out of room to house the projected number of incarcerated people, according to the state commission that reviews the performance of Texas agencies. The 189-page report documents severe staffing shortages among both correctional and parole officers that have become extremely costly and diminished public safety. Some prisons are operating with up to 70 percent of prison guard positions unfilled and the turnover rate among all Texas Department of Criminal Justice staff is 26 percent. The staffing challenges come as the growing prison population is expected to exceed bed capacity by the end of next year. The Texas Sunset Advisory Commission staff, which published the report, recommends TDCJ reallocate its staff, close the facilities with persistent staffing challenges and retrofit existing units to add more beds. The staff report suggested the agency prioritize closing prisons that lack air conditioning. About two-thirds of prison beds are in areas without climate control, which creates sweltering conditions that are the subject of an ongoing lawsuit. The report also details the department’s outdated record-keeping practices, which largely rely on paper-based processes and manual data entry. That system has led the prison system to wrongfully release 34 inmates in the past decade. It also doesn’t fully record the type of force used in guards’ physical altercations with inmates and doesn’t completely track the types of employee grievances. TDCJ is also not fully tracking the use or effectiveness of rehabilitation and reentry programs that 24

AUSTINLAWYER | NOVEMBER 2024

cost taxpayers millions of dollars, the report found. “Without data on whether a program is achieving its intended goal, whether that is reducing recidivism or increasing employment after incarceration, the report rightly notes that Texans cannot be assured that their money is being put to the best use,” said Marc Levin, Chief Policy Counsel on the Council on Criminal Justice. The Commission reviews the performance of state agencies, identifies problems within them and forwards recommended changes to the Legislature. It is overseen by 10 state lawmakers and two members of the public. The speaker of the Texas House and the lieutenant governor, who presides over the Senate, appoint the commissioners. Last week’s report from Commission staff focused on Texas’ Department of Criminal Justice, the Board of Pardons and Paroles, the Correctional Managed Health Care Committee and the Windham School District. Together, those entities house about 139,000 inmates and manage roughly 437,000 people on parole and probation. Commissioners are scheduled to hear public testimony on the staff report on Nov. 14. Commissioners’ final recommendations are expected to be sent to lawmakers on Dec. 12 ahead of the legislative session that begins in January. During an August interview with The Tribune, TDCJ spokesperson Amanda Hernandez said that recruitment is a top priority and that the agency is undergoing a dramatic “culture shift” that centers rehabilitation of inmates over punishment. Prison Staffing Crisis TDCJ’s staffing crisis has put both inmates and staff at risk, the report found.

Texas Department of Criminal Justice William G. McConnell Unit at Chase Field in Beeville in 2013. Photo by Jennifer Whitney for The Texas Tribune.

Forty percent of respondents to a correctional staff survey said they feel unsafe in prison. In 2023, the agency recorded more than 2,000 “adverse events,” surpassing a pre-COVID-19 high. Adverse events include inmate assaults, sexual assaults, homicides and escape attempts. Correctional officers say exposure to these events negatively impacts their physical and mental health and makes their jobs more difficult. Most staff report working beyond normal hours to compensate for the staffing challenges, and some understaffed facilities have a rotating schedule of mandatory overtime. Although internal policy prohibits staff from working more than 16 hours a day or 10 days in a row, violations of both of these rules are common. Staff who are ineligible for overtime instead earn compensatory paid time off, which lapses after two years. Staff report difficulty taking that time off and in 2023 reportedly lost time equivalent to 95 years of time off due to the expiration. Adding to employees’ frustration is a delay in performance

evaluations. As of April 2024, TDCJ was overdue on performance evaluations for 14,453 individuals, contributing to delays in pay raises. In survey responses, employees also pointed to punitive leadership and unfair treatment from supervisors as well as unrealistic expectations. For example, a correctional officer who is responsible for 300 inmates would have just six seconds to perform each inmate check in order to comply with their primary duties. “Sunset staff repeatedly heard from employees about a culture trickling down from upper levels of agency leadership of ‘doing more with less’ and ‘making it work,’” the report states. “Under this dynamic, the crush of tasks described above creates a lose-lose scenario for officers and other staff who risk punishment for admitting failure to complete all required tasks, feel they must deceive supervisors or falsify recordkeeping, and wind up having to make high-stakes prioritizing decisions.” To address staffing shortages, the report recommends that TDCJ

submit a 10-year plan that identifies facility and capacity needs amid a growing population and ongoing staffing issues. The Sunset staff also recommends phasing out certain facilities, particularly those with high vacancy rates and high deferred maintenance costs. The report also recommends that TDCJ streamline how employees file workplace complaints, since the current process is not confidential and is unclear. Outdated Record Keeping TDCJ uses outdated technology and lacks streamlined processes to manage complicated systems, the Commission staff found. The agency’s IT staff has built different case management databases for departments instead of customizing one system to fit the needs of different groups, for example. Sunset staff also found numerous examples of incomplete data. For example, while TDCJ collects data on use-of-force incidents, it doesn’t document what type of force was used, nor does it categorize the type of employee complaints and grievances that are filed.

“TDCJ’s inefficient, siloed and outdated data governance leads to errors that can hinder the agency’s ability to ensure safety to inmates, staff, and the public,” the report states. “TDCJ too quickly defaults to a cultural inertia of doing things the way they have always been done,” the report later says, noting that staff showed a “deep resistance” to moving away from paper-based processes. Staff often have to enter the same data into multiple databases, and manual entry has resulted in critical errors. Over the past 10 years, 34 inmates were wrongly released because of incorrect data entry. Sunset staff advised TDCJ to establish an office of modernization that would identify ways to modernize the agency and recommended that they prioritize improving data collection. Rehabilitation Programs Lack Oversight The Legislature has allocated millions of taxpayer dollars toward rehabilitation, reentry and education programs, but TDCJ

does not keep a list of active programs. The agency provided a range of estimates, from 97 to 2,000 of the number of active programs. Only a small fraction of the total number of programs are evaluated, even though state statute requires TDCJ to evaluate their effectiveness. Some programs, the report noted, are associated with increased rates of recidivism. At times, these adverse outcomes are because TDCJ over-enrolls the program, not because of issues with the program itself. The Commission staff also found that the agency takes a long time to place inmates in parole programs, limiting inmates’ opportunities for rehabilitation and costing taxpayers millions of dollars by having to continue to house inmates who otherwise could be released. In 2023, the average wait time for a particular substance use program was 146 days, for example. Those long placement times cost millions of dollars a year. TDCJ also relies on about 27,500 volunteers to help provide

programming for inmates but does not evaluate these programs. Although TDCJ wardens are legally required to identify volunteer organizations and submit a report annually to summarize their activities, most do not do so. Sunset staff recommends that TDCJ comprehensively inventory rehabilitation and reentry programs and conduct biennial program evaluations. They also suggest that TDCJ track parole program placements to understand placement delays. In an emailed statement, Hernandez, the agency spokesperson, said TDCJ “appreciates the work of the Sunset Advisory Commission staff, and will continue to collaborate with that staff as they present the results of their review to the Commission.” “This report is just one step of the process, and we are eager to continue collaborating with the Commission staff, the Commission, and the Legislature during the upcoming session,” she said. AL

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NOVEMBER 2024 | AUSTINLAWYER

Residential Substance Abuse Treatment Program for Women to Open Next Fall BY LINA FISHER, AUSTIN MONITOR

n Oct 1., the Travis County Commissioners Court approved a $469,559 contract for a residential substance use treatment program for women, using the state’s opioid abatement funds. The contract is the first time an inpatient residential resource has been available in Austin for low-income adults struggling with addiction since Austin Recovery shuttered in August 2020. Santa Maria Hostel in Houston, one of Texas’ largest multisite residential and outpatient substance use disorder treatment centers for women, will run the program, marking its first venture into Central Texas. The facility will begin with 30 beds for pregnant women and women living with children up to 12 years old. Santa Maria hopes to increase that number once the program is fully staffed, but the final count will vary based on the specific clients who are living at the facility and how many children they bring. The average length of stay in the program is expected to be three months but will also be individualized to each participant’s needs. The program will also provide peer support and step-down services including outpatient care. This kind of programming will fill a gap in Travis County’s recovery offerings. When Austin Recovery closed, it was serving 46 clients in its residential program and 96 in its outpatient programs. The opioid crisis has only worsened since then, and women requiring these kinds of inpatient services have had to travel outside of Austin to access them. Currently, the county’s Parenting in Recovery Program – created for parents dealing with substance abuse who are involved in the Child Protective Services Civil Court system – is serving about 60 women and men. 26

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“At any point, 20 to 25 women are going to need to go into treatment with their children just from that one program,” said Laura Peveto, the county’s division director of the Office of Children Services. “So we’re hoping that they can expand beyond the 30 beds because we feel like we can actually utilize that support.” The facility will be located off U.S. Highway 183 near Payton Gin Road on a bus route and is in the process of being renovated. In addition to individual rooms, it has shared space for groups and on-site child care, as well as a commercial kitchen. Together with the opioid abatement funds, Santa Maria has raised $2.3 million, with help from donors like Blue Cross Blue Shield and the St. David’s Foundation. However, fully funding operations hinges on the state: Texas Health and Human Services offers a grant for women and their children in treatment, and Santa Maria will apply for that this fall. If they get it, those funds will become available in the fall of 2025, when the program is anticipated to open. “I think it’s critically important to be able to serve community members in the community,” Commissioner Jeff Travillion said. “We can send them elsewhere and maybe even get good results, but the important thing is helping them develop a new set of interactions at home. It’s critical that we are able to provide these services here where the families are.” Peveto agreed, saying, “It’s been difficult to bring them back from outside of the community and have to start basically from scratch developing that. The ability to integrate them back into their natural support systems, for them to be able to start their recovery work in the community, is critically important.” AL

Austin Recovery shut down in 2020 amid COVID-19-related financial difficulties. It had locations on South Congress Ave., the Community First Village in East Austin, and the Hicks Ranch in Buda. Photo courtesy of Austin Monitor.

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VLAP Launches New Volunteer Portal BY LESLIE SPATOLA, VLAP COORDINATOR

he Veterans’ Legal Assistance Program is excited to announce the launch of a groundbreaking new pro bono online portal, designed to streamline how attorneys connect with veterans and low-income Texans in need of legal assistance. Initially serving Central Texas, this platform will soon expand to other area bar associations and organizations with limited resources. What’s New? This innovative portal offers a range of features to enhance your pro bono experience, whether virtually or in person:

Automated Updates and Reminders: Stay informed with automatic program updates and receive reminders for events or opportunities you’ve registered for, ensuring you never miss a commitment. Virtual Case Handling: Many of the opportunities available will allow you to provide legal assistance remotely, so you can help those in need without leaving your home or office. Easy Tracking: Stay updated on the status of your pro bono matters with integrated case management tools, helping you manage deadlines, document submissions, and client communications effortlessly.

Customizable Filters: Narrow your search by case type, geographic location, preferred service method (remote or in-person), and more, ensuring you only see the opportunities that match your expertise and availability. Opportunities Page: A centralized page will display a wide array of eligible pro bono cases, with detailed descriptions of client needs and case specifics. This will allow you to easily browse and select the matters that align with your interests and professional skills

We Need Your Input! As we finalize the portal’s features, we invite you to complete a brief survey about your military service or connection to veterans. This will help us better match you with future pro bono opportunities tailored to your experience. You can access the Military Service Survey at https://memcentral.wufoo.com/forms/military-service-survey/ To get started, visit austinbar. org/?pg=VLAPSignUp and complete the brief registration process.

Whether you prefer in-person interactions or virtual meetings, this platform will help you make a meaningful impact in our community. Together, we can make access to justice a reality for all of our veterans. Attorneys and other paraprofessionals seeking to learn more about the Veterans’ Legal Assistance Program or sign up as a volunteer for a future advice clinic or event are welcome to contact VLAP program staff at 512-4720279, ext. 110 or by email to doug@austinbar.org or leslie@ austinbar.org for more details.

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AUSTINLAWYER | NOVEMBER 2024

2024 Free Legal Advice Clinics for Veterans, Hosted by VLAP **These clinics are NOT about VA benefits!** Upcoming Free Legal Advice Clinics hosted by VLAP: Monday, Nov. 18, 2024 Monday, Dec. 9, 2024 Time: 1:30 p.m. to 4:00 p.m. *Sign-in starts at 1:30 p.m. Please sign-in before 3:30 p.m. Place: Austin VA Outpatient Clinic, Conference Room G101, 7901 Metropolis Drive, Austin, Texas, 78744 AL

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NOVEMBER 2024 | AUSTINLAWYER

Austin Bar Foundation Dear Austin Bar Members: As we celebrate the Thanksgiving season, we want to thank you for your continued support of the Austin Bar Foundation. As you make your year-end charitable donations, we ask that you consider one or more of the following programs: Preservation of Hilgers House – The Foundation bought this beautiful home in 2019. It was built in 1899, and there is extensive upkeep in maintaining our headquarters. Potential projects for 2025 include upgrading the heating and air system, redoing the hardwood floors, refinishing some of the trim, and repainting the outside classic revival pillars. Equity Summit – This annual CLE event is put on by the Austin Bar’s DEI Committee and focuses on making the Austin legal profession a more equitable and inclusive community. Funds raised for this event are used to rent event space, provide breakfast and lunch to attendees, produce signage and handouts, and attract speakers. Veterans Legal Assistance Program – VLAP hosts monthly in-person legal advice clinics where volunteer attorneys counsel veterans on a range of legal issues, such as contract disputes, landlord/tenant disputes, custody disputes, divorce, alimony, and child support issues. Funds raised for this cause are used to pay for technology and software to ensure efficiency.

DONATIONS $50 $100 $250 $500 $1,000

Austin Bar Foundation Grants – Every year, the foundation awards grants to worthy community organizations and causes offering legal-related services to the public. 2024 recipients include Austin Community Radio to host a Jury Duty Community Forum, Catholic Charities of Central Texas to expand legal aid to immigrants with Department of Justice-accredited representatives, and the Seedling Foundation to provide mentoring to kids who have an incarcerated parent. Justice Mack Kidd Fund – This fund provides grants to attorneys struggling with mental health and/or substance abuse issues to seek treatment.

Other Amount:____________

Adoption Day – This project puts on the annual Austin Adoption Day event at the Travis County Civil & Family Courts Facility, where the adoption of kids in foster care is finalized. Funds raised allow us to decorate the courthouse and ensure the day is as memorable as possible for the families. CanLaw Clinic – This project provides free estate-planning services to patients with stage-IV cancer and their families. Funds raised for this project are used to pay for meeting space, signage, printing, and technology. Denise Hyde Scholarship – This fund provides grants to individuals who are aging out of the foster-care system. Recipients can use these funds to pay for school supplies, take GED/SAT/ACT tests, apply for college, and other expenses they may have. LGBTQ+ Scholarship – This fund provides stipends to LGBTQ+ law students and advocates in Texas. The purpose of this fund is to promote education on LGBTQ+ issues, raise the profile and increase acceptance of LGBTQ+ individuals in the legal community, and to promote LGBTQ+ equality.

The Austin Bar Foundation is a 501(C)(3) not-for-profit organization. Donations to the Austin Bar Foundation are tax-deductible.

What you get for your contributions • All donors of $100 or more will be recognized on the Austin Bar website. • All donors of $250 or more will be recognized in the weekly Bar Code e-newsletter. • All donors of $500 or more will be recognized in Austin Lawyer. • All donors of $1,000 or more will be recognized in individualized social media posts.

Donations via check should be made out to the Austin Bar Foundation and sent to 712 W. 16th Street, Austin, TX 78701. You can (if you desire) indicate specific programs to support by circling them on this page and returning it with the check. Online donations can be made at austinbar.org/donate. 30

AUSTINLAWYER | NOVEMBER 2024

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North Carolina Seeking Out-Of-State Lawyers to Help Victims of Hurricane Helene Recover

ut-of-state lawyers can temporarily register with the North Carolina State Bar to provide pro bono legal services to victims of Hurricane Helene, following an order by the North Carolina Supreme Court. The court approved the North Carolina State Bar’s temporary rule amendment on Oct. 1. The State Bar petitioned the Supreme Court for this emergency rule to streamline the process by which out-of-state lawyers can provide pro bono services in North Carolina. In its petition for the emergency rule, the State Bar noted that, “there is not sufficient time to follow the prescribed procedural steps to amend the State Bar’s administrative rules and still provide the indigent legal services now, when they are desperately needed.” The temporary rule, expiring in January 2025, allows lawyers licensed in other states but not in

North Carolina to register with the North Carolina State Bar and immediately begin providing pro bono legal services through a legal services organization to indigent residents of North Carolina who are victims of Helene without first obtaining approval from the State Bar Council. Lawyers interested in providing pro bono services under the order can fill the registration form at https://www.ncbar.gov/media/730811/hurricane-helene-temporary-pro-bono-form.pdf and return it to the North Carolina State Bar using the instructions provided. Hurricane Helene made landfall on the Florida Gulf Coast as a Category 4 storm on Sept. 26 and caused significant damage across a large portion of the southeastern United States, particularly the southern Appalachians, according to the National Weather Service. As of Oct. 2, at least 170 people have been declared dead as a result of Helene. AL

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Using AI to Simplify Your Life BY JOSH COTTLE, FRIDGE AND RESENDEZ

ears ago, I missed my firstborn’s birth. My client had an emergency guardianship hearing involving financial predation of their aunt, who was so far gone she was stuffing contact lenses into her eyes until they bled. We get our time in when we can: homework, dinner, bedtime routine, trips to the grocery store, music lessons, day camps, friend dates to the falls or the hippie parks. But my relationship with the law took that moment away forever. I am not complaining: I work in the information economy in the United States of America with a mostly functional family–there is nothing to complain about and much to thank God for. But this loss has taught me to always look for opportunities to spend more time with family. Bearing in mind I claim superiority in neither parenting knowledge nor legal acumen, as I am the least of all in all things, I encourage parents who work as lawyers to think of these things in their struggle to balance good parenting with good lawyering, especially at the vulnerable points in a practice (like in a growth phase). 1. Manage deadlines like no tomorrow. You read this and hear it all the time. You might even say it. But mastery of your calendar lets you get your work done, minimize your stress load, and spend some happy time with your family. If you let your deadlines run away, you become poor company; too often we end up “kicking the dog,” as they say. Better organization keeps away these bugbears of personality. You must have good communication in place with your children’s caregivers if you wish to thrive while balancing your legal obligations with your parental duties. New clients entail more trav34

AUSTINLAWYER | NOVEMBER 2024

el for the litigator; and certainly for the solo. And all work travel requires a compromise and advanced planning with your children’s other parent or whoever else you depend on to help rear them. Carry-over weeks, as when on stand-by for trial, will have you scrambling with colleagues, courts, and opposing counsel to work on your settings so you can get ready for the trial when it finally gets called. And the good lawyer-parent considers the special people in your life. If they are working souls, you must listen to their complaints; you must note their schedules so that a calendar conflict does not surprise you. If they

stay at home raising your kids, then you need to be sure to give them some breaks and show your appreciation. And if you do any work-from-home, then you know how critical it is to get relief from your children’s needs for dedicated work time, just as it is to take a break from the office to go check in on them if they are around the house. 2. Master the new tools we have. AI is here. Use it. Generative AI can help you with your writing and even with argument analysis. For instance, I dealt with a very troubling discovery order standard in some counties. The order had exceptions

the size of a truck throughout. An AI tool outlined multiple such defects and, when pressed, highlighted potential abuses, one of which I had not considered. While this has not persuaded any court I know of to change the order, it has educated me about similar wording to beware in the future. Through generative AI, I have also written VBA (Visual Basic for Applications) modules for different Microsoft functions, including metadata extraction and organization for making privilege logs. These simplified my life by dozens of hours and reduced the billing load for my clients. Your ignorance is not an impediment. If you do not know some-

thing, chances are, one of the generative AI tools like Claude or ChatGPT will have something in their lexicon to guide you in the generally right direction. Even a bad initial prompt can eventually get you to a good point. Sometimes you need to “tweak” your prompts after testing the outputs. We all have the power to write tremendous code with the aid of digital personal assistants. And with advanced speech-to-text technologies like Whisper on the market, there is almost no reason to strain your wrists doing it. Almost every single legal research AI tool is worth a trial run. Using Lexis+, opposing counsel in one of my cases tried to find support for his lawsuit. Instead, he found a case opposing his position and, based on that, said he did not intend to keep fighting the lawsuit. Zapier and other workstream automation tools are also critical to examine and master, since they can free up a lot of time by automating data entry. With Zaps, as Zapier automation processes are called, I have seen emails get batched into databases, where their content can then be filtered through hotkeys or other programs into appropriate billing entries. For the practitioner parent, using tools should result in more productive time for your clients, meeting deliverables and deadlines, and creating more time for you to spend with your family. It is hard to balance your children’s needs with your legal career. You can give them a good life, and you can certainly improve yours, by managing your deadlines and using new technologies to simplify your workload. AL Josh Cottle is an attorney at Fridge & Resendez, P.C., specializing in judgment collections with a Texas-wide practice.

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