Arguments For and Against the Retroactive Application of Obergefell in Texas Gender Identity in a Binary System: Transgender Students and Public Schools A Parent’s Guide to Working with School Districts to Resolve Conflicts Involving Unique Needs of LGBTQ Students The Bar Comes Out in Houston How Houston’s Municipal Courts Made LGBT History
Volume 54 – Number 4
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contents Volume 54 Number 4
FEATURES For and Against 10 Arguments the Retroactive Application of Obergefell in Texas
By Trey Yates and Mike Daya
Identity in a Binary 16 Gender System: Transgender Students and Public Schools
By Bradley Domangue
Guide to Working 20 AwithParent’s School Districts to Resolve
Conflicts Involving Unique Needs of LGBTQ Students By Susan Soto
Bar Comes Out in Houston 24 The By The Hon. Charles A. Spain Houston’s Municipal Courts 28 How Made LGBT History By The Hon. Josefina M. Rendón
The Houston Lawyer
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: firstname.lastname@example.org Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2016. All rights reserved.
contents Volume 54 Number 4
departments Message 6 Presidentâ€™s The Time to Address Diversity
and Inclusion is Now By Neil D. Kelly
the Editor 8 From The Emerging Field of
LGBT Jurisprudence By Jill Yaziji
Lawyers Who 32 Houston Made a Difference
J. S. Bracewell
By The Hon. Mark Davidson
the record 33 off Charles A. Spain: Civil Rights
By Anietie Akpan Spotlight 34 Committee The HBA Judicial Polls Committee By Yvonne Y. Ho and David E. Harrell Profile in professionalism 35 ACisselon Nichols Hurd Senior Litigation Counsel, Shell Oil Company Trends 36 Legal Bent Logic: The Texas Supreme
Court Gives Further Guidance on Requirements Needed to Order a New Trial By The Hon. Jeff Work
A Claim for Attorneyâ€™s Fees in a Breach of Contract Claim Loses Appeal By The Hon. Scott Link
38 Media ReviewS
Online Law Practice Strategies Reviewed by Raymond L. Panneton
Capital Cat and Watch Dog: Welcome Rabblerousing in Washington, D.C. Reviewed by Kimberly A. Chojnacki
The Houston Lawyer
40 Litigation MarketPlace
By Neil D. Kelly Andrews Kurth LLP
The Time to Address Diversity and Inclusion is Now
The Houston Lawyer
hile the legal profession may be the least “diverse” profession, the Houston Bar Association continues to work on advancing the value of diversity, equality, and inclusion in tangible ways. One of my initiatives as president for 2016-17 was to increase our demonstrated commitment to diversity, equality, and inclusion, specifically, as this issue of The Houston Lawyer addresses, a dimension of diversity deserving of increased attention: the lesbian, gay, bisexual, transgender, and queer community (LGBTQ). For context, the HBA has included in its outreach and substantive offerings programs to further diversity and inclusion. For example, for over 20 years, the HBA has had the Minority Opportunities in the Legal Profession Committee that oversees a diverse talent pipeline program that continues to identify talented 1Ls at all three of our Houston law schools for summer clerkships with law firms, in-house counsel, and judges. The HBA also includes other bar organizations, such as the Asian American Bar Association, the Houston Lawyers Association, and the Mexican American Bar Association, in outreach programs to benefit and support our combined members and the communities they represent. This bar year our CLE offerings included one by attorney Phyllis Frye, who is featured in the article here in by Judge Josefina Rendon, and a CLE Ethics panel with attorneys Allison Bashir at M.D. Anderson Cancer Center, Tom Godbold at Twin Eagle Resource Management, Jim Reeder at Vinson & Elkins, and Elizabeth Campbell at Andrews Kurth Kenyon. The program addressed implicit bias and the LGBTQ community entitled: “Tackling the Silent Threat to Inclusion: Unconscious Bias in the Legal Profession.” Videos of both of these CLEs are available on the HBA’s website. The CLE included a discussion of the impact of ABA Model Rule 8.4(g), which makes it an ethical violation for an attorney to engage in discrimination on the basis of sexual orientation and gender identity: It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude 6
legitimate advice or advocacy consistent with these Rules. Many recognize the importance of embracing diversity and inclusion from a fairness and performance quality perspective, and the articles in this edition underscore that point. Further, as reported in the Human Rights Campaign Foundation’s Corporate Equality Index 2017, 82% of Fortune 500 companies have gender identity protections in their nondiscrimination policies and a record number of employers earned the top rating for policies, benefits, and practices that respect the LGBTQ workforce and their families. Moving the needle from “embracing” diversity and inclusion, especially as it pertains to members of the LGBTQ community, to championing efforts of “inclusion” has its challenges. The federal Equal Employment Opportunity Commission (EEOC) and many courts have recognized that discrimination on the basis of “sex” under Title VII includes protecting members of the LGBTQ community from discrimination. The EEOC’s report on Fiscal Year 2016 data, which is the year that ended September 30, 2016, is the first such report to include data on LGBTQ-related discrimination charges. The EEOC reported 1,650 sex discrimination charges and $4.4 million recovered from sex discrimination claims. In the January 18, 2017, announcement of the Enforcement and Litigation Data, the EEOC Chair stated: EEOC advances opportunity for all of America’s workers and plays a critical role in helping employers build stronger workplaces. Despite the progress that has been made, we continue to see discrimination in both overt and subtle forms. The on-going challenge of combating employment discrimination is what makes EEOC’s work as important as ever. It remains to be seen how the new federal government administration and the Texas legislature will address issues of diversity, inclusion, and non-discrimination. But while there may be uncertainty about exclusion, the HBA will continue to move forward along with other organizations like the ABA and Human Rights Campaign, and the many businesses (i.e., clients) that embrace diversity, equality, and inclusion, to raise the visibility of LGBTQ issues. This edition is just one such example. The time to address the issue of inclusion of members of the LGBTQ community in the legal profession and make it difficult to tolerate any discrimination is now.
from the editor
By Jill Yaziji Yaziji Law Firm
Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson LeClairRyan
Farrah Martinez Attorney at Law
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Work Law Firm
The Emerging Field of LGBT Jurisprudence
e lawyers love to use the term “settled law” when we write a brief or argue a case to the court. But there is no “settled law,” or unequivocal precedent, in the emerging field of LGBT jurisprudence. As this issue of The Houston Lawyer was going to press—in fact, after it reached the publisher—we learned of President Trump’s decision revoking the previous administration’s guidance to public schools to allow transgender students to use the bathrooms of their choice. This is as ‘settled’ as this law is! It is, then, good to read this issue’s articles with some sense of irony, even after the landmark decision of Obergefell v. Hodges. In Obergefell, the U.S. Supreme Court held that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment guarantee the right of same-sex couples to marry. Justice Kennedy, writing the majority opinion of Obergefell, was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Obergefell ensued from the plaintiff’s desire to be shown as the surviving spouse on his husband’s death certificate, something that Ohio law disallowed. Justice Kennedy wrote: “Their plea is that they do respect it [marriage], respect it so deeply that they seek to find its fulfillment for themselves... They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Yet, Justice Kennedy also acknowledged the First Amendment rights of those who believe same-sex marriages should not be tolerated for religious or any other reason. Nevertheless, what justice Alito called the “new orthodoxy” is the law of the land, challenging long-held principles and presumptions, fears and judgment. Justice Roberts’ dissent focused on the implications for gay adoption, and tax exemption status of religious institutions that continue to discriminate against gay couples, among other things. Only evolving jurisprudence will determine how these, and other challenges, will be adjudicated.
We open this issue of The Houston Lawyer with the ramifications of Obergefell on state courts: to follow or not to follow. Trey Yates and Mike Day offer a detailed and dispassionate analysis of whether Obergefell should be applied retroactively in Texas courts, drawing on precedents that allow the advocate to take either side. The next two articles are written by Bradley Domangue and Susan Soto, who represent educational institutions and school kids’ parents, respectively. Domangue focuses on Texas school boards and the way in which they have worked with parents of transgender students, and discusses recent laws that might potentially limit the rights of transgender individuals seeking to assert their identity at schools. Soto describes a protocol that parents of transgender kids, or those whose gender identity does not fit the traditional mold, can follow to avail themselves of the protections available at school districts. She describes a proactive approach, starting at the campus level and working privately with school teachers, to explore how these children can have equal access to the schools’ activities and facilities. The last two articles explore the history and evolution of the Houston LGBT community, in and outside of the courtroom. Judge Spain offers a remarkable chronology of the most crucial events that allowed the evolution of the LGBT bar into the Stonewall Lawyers Association of Greater Houston. Judge Rendon, in turn, writes about judges in Houston’s Municipal Courts, often called “the people’s courts,” reflecting on the racial, ethnic, and gender-sexual diversity of the judges serving at the bench. These courts have had the first openly gay and first openly lesbian judges in Texas, as well as the first openly transgender judge in the nation, writes J. Rendon. This reflects not just the diversity of Houston itself, but that of the Houston Bar as well. The law in this area may not be settled, but The Houston Lawyer continues to reflect on the legal and social struggles of members of the bar.
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By Trey Yates and Mike Day
Arguments For and Against the Retroactive Application of Obergefell in Texas
bergefell v. Hodges is rightly considered one of the most noteworthy U.S Supreme Court decisions in recent history, one that sparked passionate discussions on issues of equality and free exercise of religion throughout the nation. The Obergefell Court held that same-sex individuals have the right to legally marry, arising from their due process and equal protection rights. The purpose of this article is not to praise or assail the correctness of the Obergefell holding. Rather, this article endeavors to offer a dispassionate analysis of whether Obergefell should be applied retroactively by Texas courts. The retroactive application of Oberge-
fell is one of the most interesting legal issues being litigated today. Although primarily considered a family law matter, the existence of a legal marriage can impact a wide spectrum of litigation issues from wrongful death claims to chain-oftitle disputes. In the absence of appellate guidance, there is substantial uncertainty among the trial courts when deciding the applicability of Obergefell. Arguments Supporting Retroactive Application That Obergefell should be applied retroactively is the conventional wisdom approach. In researching this issue, the first resource a practitioner should review is the very recent opinion issued by Judge Crone of the Eastern District of Texas in Ranolls v. Dewling.1 Judge Crone provides some of the most lucid and fundamentally sound analyses found on this issue. In Ranolls, an automobile accident resulted in the death of Ranolls’s daughter. The daughter’s alleged common-law wife intervened, claiming that she, not the mother, should represent the decedent’s estate as the surviving spouse. Defendants sought summary judgment on the issue of whether Obergefell applied retroactively and, if it did, summary judgment on the informal marriage issue. Judge Crone began by citing Obergefell’s holding that the right to marry is a fundamental right of Due Process and Equal Protection.2 She went on to note that unconstitutional laws are void from the inception, as if they never existed.3 Judge Crone provided a brief history of the rather convoluted retroactivity jurisprudence.4 She discussed how the U.S. Supreme Court adopted the Chevron Oil test (discussed further below) and then gradually retreated from this approach.5 Judge Crone concluded her historical analysis by stating one of the central tenets of contemporary retroactivity jurisprudence, i.e. ,when the U.S. Supreme Court applies a new rule of law to the parties in a case, then all courts must apply the new rule with respect to all others similarly-situated if not barred by proce-
dural requirements or res judicata.6 Judge Crone then determined that Obergefell should apply retroactively to the parties in Ranolls because the U.S. Supreme Court applied the new rule of law to the parties in Obergefell.7 Judge Crone then solidified her analysis by citing numerous recent decisions in which the overwhelming consensus was that courts should apply Obergefell retroactively.8 She discussed a Fifth Circuit case that resulted in same-sex families having greater access to Bureau of Vital Statistics forms as well as an Eleventh Circuit case that possessed similar facts to Ranolls.9 Judge Crone further held that denying the alleged “wife” one of the benefits of marriage (e.g., asserting the wrongful death claim) would violate her Due Process and Equal Protection rights.10 This is an implied rejection of the argument that there is a distinction between the right to marry and the right to receive benefits arising from that marriage (an argument addressed further below). Not surprisingly in light of her approach to Obergefell, Judge Crone denied summary judgment on the basis of lack of existence of the informal marriage.11 In the informal marriage context, Ranolls is illustrative of the principle that same-sex cases are just like heterosexual cases in that informal marriage claims are unique and fact-intensive and rarely conducive of summary judgment. In short, the idea that Obergefell should apply retroactively is the easier argument. However, things become far more complicated in cases when recognizing a marriage that was not previously recognized could result in unintended consequences or, depending on the Texas Supreme Court decision in Pidgeon (discussed below), when a party is opposing a discrete benefit arising from marriage as opposed to only the validity of the marriage itself. Arguments against a Retroactive Application That Obergefell should not be applied retroactively is the harder position as it goes
against much of the legal commentary on the subject. Nonetheless, there are two general substantive arguments, and one procedural one, for avoiding the retroactive application of Obergefell. In addition, there is a conceptual distinction between a spouse challenging the validity of a marriage and a third party seeking to avoid inequitable collateral consequences of a retroactive change in someone else’s marital status. A. Reynoldsville Casket The first substantive and strongest argument relies on the holding of the U.S. Supreme Court in Reynoldsville Casket, the first case to address retroactivity issues after the Court decided a line of cases approving of general retroactive application of new rules of law (i.e., the line of cases relied upon by Judge Crone in Ranolls). Reynoldsville Casket involved an Ohio statute of limitations that treated outof-state defendants differently from instate defendants.12 Prior to Reynoldsville Casket, the U.S. Supreme Court held that this same Ohio statute of limitations was unconstitutional.13 Shortly thereafter, the Ohio Supreme Court declined to apply retroactively Bendix to plaintiffs who had relied on the statute declared unconstitutional.14 The Reynoldsville Casket Court disagreed with the Ohio Supreme Court’s reasoning that none of the conditions that may avoid the effect of a retroactive application of a new rule of law were present.15 The four conditions listed in Reynoldsville Casket are: (1) an alternative way of curing a constitutional violation; (2) a previously existing independent basis (having nothing to do with retroactivity) for denying relief; (3) as in the law of qualified immunity, a well-established general legal rule that trumps a new rule of law, which general rule reflects both reliance interest and other significant policy justifications; or (4) a principle of law that limits the principle of retroactivity itself.16 As will be discussed below, Reynoldsville Casket allows a creative practitioner to engage in a crucial strat-
egy of legal argument. When the answer to the question at hand is unfavorable (e.g., Obergefell is retroactive), the advocate should insist that the court must answer a different question before reaching a legal conclusion, such as looking to a previously existing basis for denying relief that has nothing to do with the retroactivity issue. B. Chevron Oil The second approach in avoiding the retroactivity application is to rely on the Chevron Oil test, which some commentators have suggested is still viable. The elements of the Chevron Oil test are: (1) the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) to weigh the merits and demerits in each case by looking to the prior rule in question, its purpose and effect, and determining whether retrospective operation will further or retard the prior rule’s operation; and (3) to weigh the inequity imposed by retroactive application.17 It is important to remember that the precedential value of Chevron Oil is extremely unclear. The U.S. Supreme Court alluded as much in Reynoldsville Casket when it noted that the plaintiff conceded Harper overruled Chevron Oil.18 Chief Justice Wallace Jefferson also noted this allusion in a dissenting opinion.19 Nevertheless, the U.S. Supreme Court has not conspicuously stated that it has overruled Chevron Oil. In fact, Justice Kennedy relied on Chevron Oil in his concurrence in Reynoldsville Casket when he noted that, “We do not read today’s opinion to surrender in advance our authority to decide that in some exceptional cases, courts may shape relief in light of disruption of important reliance interests or the unfairness caused by unexpected judicial decisions. We cannot foresee the myriad circumstances in which the question might arise.”20
Less than a month after Reynoldsville Casket, the U.S. Supreme Court held that a Coast Guard seaman was entitled to a retroactive application of a decision finding an appointments clause violation and remanded so that the accused could be judged by judges who were appointed in compliance with the appointments clause.21 The Government invoked Chevron Oil arguing against retroactive application of the Ryder opinion. The Supreme Court declined to do so observing that, “…whatever the continuing validity of Chevron Oil (citation omitted) after Harper (citation omitted) and Reynoldsville Casket (citation omitted), there is not the sort of grave disruption or inequity involved in awarding retrospective relief to the petitioner that would bring that doctrine into play.”22 Indeed, what is the continuing validity of Chevron Oil? This is a question that the Court has refused to answer clearly. Lower courts have noted this lack of clarity and are split on whatever con-
tinuing validity Chevron Oil might have. The Ninth Circuit continues to adhere to Chevron Oil as it has not been expressly overruled.23 The Fourth Circuit has expressed reservations about Chevron Oil but observed “the notable absence in Harper of any statement that Chevron is overruled.”24 The Fifth Circuit believes that Chevron Oil is overruled except in extremely unusual and unforeseeable cases.25 The Eleventh Circuit believes that the U.S. Supreme Court impliedly retained the Chevron Oil Test in some form.26 And, the Third Circuit believes the issue is “unclear.”27 Suffice it to say, federal authority is conflicting on this issue. Even if Chevron Oil is still viable and the equitable ground prong is met, a party would still have to show that Obergefell is somehow new law or not foreseeable. As time goes on, arguing the newness of Obergefell does not get any easier. Similarly, foreseeability is difficult to argue in light of Windsor.28
C. Practical Application The better approach is to focus on Reyondsville Casket. If a claim meets the equitable standard for Chevron Oil, then it should satisfy some other independent rule that should prevail despite Obergefell’s retroactive application and without having to answer the law school final exam question on Chevron Oil’s viability. For example, suppose a hitherto unrecognized spouse seeks to set aside a deed conveying a marital homestead because the deed did not contain her signature as required by Texas Family Code Section 5.001. If the non-signing spouse has moved out of the property and the buyers have moved in, then the buyers can assert an independent basis for defeating the non-signing spouse’s claim that is well grounded in the law: the deed was merely inoperative but became operative upon the non-signing spouse’s abandonment of the homestead.29 Another example might be where a hitherto unrecognized spouse claims
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that a contractor’s lien on a homestead is invalid because the unrecognized spouse never signed the contract for improvements with the contractor. The contractor could still have a viable defense. If the spouses misled the contractor about their marital status (e.g., “this is Frank, he’s my boyfriend”), the spouses could be subject to fraud and estoppel claims preventing them from asserting the homestead defense or the requirement for both spouses to sign the contract before a lien can attach regardless of the validity of the marriage.30 These examples demonstrate the distinction between one’s marital status and third parties avoiding inequitable collateral consequences of that marital status. The policy behind Chevron Oil is to avoid such inequitable consequences. Reynoldsville Casket addresses this concern by emphasizing that the retroactivity of the law does not mean that equity is read out of the law.31 Rather, equity can be ascertained from some other legal principle as
long as that principle falls under one of the four factors that can prevail regardless of retroactivity. Unclean hands, estoppel, and other principles are exactly the sorts of claims that a creative practitioner should pursue. A spouse seeking to avoid Obergefell’s retroactive effect regarding marital status is much more problematic than a third party seeking to avoid collateral consequences. A party seeking to avoid a formal marriage is, again, likely limited to the Reynoldsville Casket factors. Even if Chevron Oil is still good law, it seems impossible that a party who consented to a marriage could satisfy all three of its factors. On the other hand, Reynoldsville Casket appears to offer some limited relief. For example, a spouse (or someone on their behalf) could still seek annulment of the marriage under any of the admittedly rare grounds for annulment set out in Chapter 6 of the Texas Family Code. More importantly, an advocate could
claim that Judge Crone was wrong in rejecting the distinction between the right to marry and the right to benefits arising from that marriage. On January 19, 2017, the Texas Supreme Court finally ruled on the petition for rehearing in Pidgeon v. Turner.32 By agreeing to hear this case, the Texas Supreme Court will give an audience to the claim that there is such a distinction between the right to marry and the right to benefits arising from said marriage. Pidgeon involved a suit asserted by taxpayers against the City of Houston regarding the City’s policy on employee benefits for same-sex couples; the taxpayers claimed that providing such benefits was void as a matter of public policy and an illegal use of public funds.33 The Fourteenth Court of Appeals invalidated the injunction obtained by the taxpayers in the trial court on the basis that Obergefell presented a new and substantial change in the law.34 The Texas Supreme Court at first blush declined to hear the case in
September 2016.35 In his dissent in the denial of the petition of review in Pidgeon v. Turner, Justice Devine argued that Obergefell does not foreclose a distinction between the right to marry and the right to benefits arising from marriage by citing United States Supreme Court precedent in which claimants for governmental benefits were treated differently according to the claimants’ marital history.36 The Pidgeon petition for rehearing was filed in October 2016 (Governor Abbott, Lieutenant Governor Patrick, and Attorney General Paxton joined by Amicus briefing). As mentioned above, the petition for rehearing was granted on January 19, 2017.37 Oral argument is set for March 1, 2017.38 Neither Justice Devine nor the Amici cited Reynoldsville Casket. Instead, they chose to argue that only Obergefell’s judgment is binding but not the reasoning of the opinion nor the “assumptions” made by the Supreme Court in support of its holding.39 These seem to be rather unconventional arguments for an advocate to make to a lower court. A prudent advocate should argue that Justice Devine’s dissent and the Supreme Court cases he relies upon satisfy the second factor of Reynoldsville Casket (i.e., a previously existing ground for denying relief) because the Supreme Court, through precedent it has yet to overrule (a questionable proposition given Obergefell’s language), continues to recognize a distinction between the right to marry and the right to benefits arising from the marriage. Simply put, the marriage is still valid but there is no right to whatever benefit the complaining spouse seeks to avoid providing (e.g., community property, spousal maintenance, etc.). Time will tell if Texas courts adopt Justice Devine’s approach and find that there is a distinction between the right to marry and the right to receive benefits arising from the marriage, or adopt Judge Crone’s approach (and virtually every judge that has ruled on this issue) and find that such a distinction is foreclosed by the express language of Obergefell. 14
Again, Justice Devine’s approach cuts against legal conventional wisdom but that is not to say that a Texas court would find it unpersuasive. D. Procedural Argument Lastly, it seems that asserting any relief under Obergefell necessarily entails claiming the Texas statute making same sex marriage illegal is unconstitutional via the Supremacy Clause. This sort of claim is one that a party must generally raise as an affirmative defense under Rule 94 of the Texas Rules of Civil Procedure.40 The failure to plead the Supremacy Clause as an affirmative defense results in waiver.41 Therefore, it appears that Obergefell’s retroactive application can be waived under the ordinary rules of state court pleading as indicated by Beam.42 Of course, per Obergefell, the other side could claim that the Texas statute should be void from its inception so there should be no need to provide notice. It could be further argued that there is a difference between asserting an original challenge to a statute’s constitutionality under Rule 94 and relying on one of the most significant U.S. Supreme Court cases in recent years holding the statute unconstitutional. In light of this latter consideration, a trial court could sua sponte consider the constitutionality issue or at least allow a trial amendment.43 On the other hand, surely the burden of pleading and disclosing Obergefell is slight and the U.S. Supreme Court has indicated that state law procedural requirements (e.g., statute of limitations) can be an exception to a retroactive application.44 The Court has further indicated that as long as the constitutional right is recognized then it is up to the States to craft a system of remedies that satisfies Due Process considerations.45 Surely, Texas state courts and their procedures afford sufficient due process. Perhaps this approach is too clever by half. Then again, there are limited options when a party seeks to challenge a retroactive application of Obergefell to her own marriage and this is an opportunity
to see an opponent’s best poker face when that opponent has not disclosed or expressly pleaded the Supremacy Clause.46 In short, conventional wisdom is that Obergefell should apply retroactively. Nonetheless, a case set to be heard by the Texas Supreme Court in March 2017 could call that wisdom into question. Moreover, there is strong precedent for a party who innocently suffers inequity because of a retroactive application. For the not- so-innocent party, there is a nonfrivolous procedural argument coupled with the uncertainty arising from Pidgeon. Trey Yates has been licensed to practice law since 1986 and is certified in Family Law by the Texas Board of Legal Specialization. Mike Day has been licensed to practice law since 2005 and is an associate of the Law Office of Sam M. (Trey) Yates, III, P.C. Endnotes
1. Ranolls v. Dewling, Texas Eastern District Court, Case # 1:15-cv-00111, Memorandum and Order dated November 3, 2016. 2. Id.at 8. 3. Id. 4. Id.8-12. 5. Id. 6. Id., citing James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991) and Harper v. Va. Dep’t of Taxation, 509 U.S. 86 (1993). 7. Id. at 13. 8. Id. at 13-17. 9. Id., citing De Leon v. Perry, 975 F. Supp. 2d 632, 639-40 (W.D. Tex. 2014), aff’d, 791 F.3d 619 (5th Cir. 2015); Hard v. Attorney Gen., No. 15-13836, 2016 WL 1579015, at *1-3 (11th Cir. Apr. 20, 2016). 10. Ranolls at 17. 11. Ranolls, 17-19. 12. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759 (1995). 13. Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988). 14. Hyde v. Reynoldsville Casket Co., 1994-Ohio-67, 68 Ohio St. 3d 240, 626 N.E.2d 75, rev’d, 514 U.S. 749, 115 S. Ct. 1745, 131 L. Ed. 2d 820 (1995) and rev’d, 72 Ohio St. 3d 1544, 650 N.E.2d 904 (1995). 15. Reynoldsville Casket Co., 514 U.S. at 759. 16. Id. at 759. 17. Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). 18. Reynoldsville Casket, 514 U.S. 749, 752. 19. Southwestern Bell Telephone Co., L.P. v. Mitchell, 276 S.W.3d 443, 451 (Tex. 2008). 20. Chevron Oil Co., 404 U.S. 97, 761-62. 21. Ryder v. United States, 515 U.S. 177 (1995). 22. Ryder, 515 U.S. at 184-85. 23. Nunez-Reyes v. Holder, 646 F.3d 684, 691 (9th Cir. 2011) (en banc). 24. Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703, 710 (4th Cir. 1994). 25. Hulin v. Fibreboard Corp., 178 F.3d 316, 333 (5th Cir. 1999). 26. Glazner v. Glazner, 347 F.3d 1212, 1216-17 (11th Cr. 2003) (en banc). 27. Kolkevich v. Att’y Gen. of U.S., 501 F.3d 323, 337 n.9 (3d Cir. 2007).
28. United States v. Windsor, 133 S. Ct. 2675 (2013). 29. Wilcox v. Marriott, 103 S.W.3d 469, 474 n.3 (Tex.App.-San Antonio 2003, pet. denied). 30. See Cadle Co. v. Ortiz, 227 S.W.3d 831, 836 (Tex.App.-Corpus Christi 2007, pet. denied). 31. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, (1995). 32. Parker v. Pidgeon, 477 S.W.3d 353 (Tex. App.—Houston [14th Dist.] 2015), review denied sub nom. Pidgeon v. Turner, 150688, 2016 WL 4938006 (Tex. Sept. 2, 2016), rehearing granted, opinion withdrawn (Jan. 19, 2017). 33. Parker v. Pidgeon, 477 S.W.3d at 353-55. 34. Id. 35. Ward, Mike. “High Court Takes Houston Same-Sex Benefits Case After Prodded by GOP Leaders.” Houston Chronicle. Houston Chronicle 20 Jan. 2017. Web. 26 Jan. 2017. 36. Pidgeon, 2016 WL 4938006 at *1-6. 37. Ward, Mike. “High Court Takes Houston Same-Sex Benefits Case After Prodded by GOP Leaders.” Houston Chronicle. Houston Chronicle 20 Jan. 2017. Web. 26 Jan. 2017. 38. Ward, Mike. “High Court Takes Houston Same-Sex Benefits Case After Prodded by GOP Leaders.” Houston Chronicle. Houston Chronicle 20 Jan. 2017. Web. 26 Jan. 2017. 39. Pidgeon, 2016 WL 4938006 at *1-6; See Amicus Curiae Brief of Governor Greg Abbott, Lieutenant Governor Dan Patrick, and Attorney General Ken Paxton, filed October 27, 2016. 40. Hyder-Ingram Chevrolet, Inc. v. Kutach, 612 S.W.2d 687 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ). 41. Id. 42. James B. Beam Distilling Co., 501 U.S. at 544. 43. Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177, 182 (Tex.App.-Houston [14th Dist.] 1975, writ ref’d n.r.e.); In re C.M.D., 287 S.W.3d 510, 515 (Tex.App.-Houston [14th Dist.] 2009, orig. proceeding). 44. James B. Beam Distilling Co., 501 U.S. at 544. 45. Harper, 509 U.S. at 95-96. 46. Tex. R. Civ. Proc. 193.6(a).
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By Bradley Domangue
Gender Identity in a Binary System: Transgender Students and Public Schools
chool districts in Texas have worked with transgender students and their parents for years, and in doing so, most school districts have worked with these students and their parents privately, in collaboration with one another and with a common goal to do what is best for the student, without causing a political maelstrom or media frenzy. Issues typically only make it to the court-
room, or the news, when something goes badly, so it is usually on these cases that attorneys, and the public, focus their attention. In many cases, school districts pull together the student’s educators, counselors, administrators, and parents, and develop a plan for the student based on the student’s current stage in his/her transition and based on the overall comfort level of the student and parents with his/her transition. This may involve permitting transgender male and female students to use the locker rooms and bathrooms of their gender identity, or it may result in accommodation with unisex restrooms and changing rooms. For school districts, transgender issues are student specific and incredibly individual and personal. These cases involve a delicate balance of accommodating the student and helping him/her succeed while following state and federal law, which are not always complementary to one another. The 2015-2016 school year has thrust transgender issues into the spotlight as part of multiple larger political initiatives acted on by politicians and advocacy groups. From the rise of media stars, like Laverne Cox and Caitlyn Jenner, to Houston’s vote on its own equal rights ordinance and North Carolina’s passage of House Bill 2, transgender issues have garnered significant attention. School districts are caught up in the political fray. Most school districts have attempted to tread carefully to fulfill federal guidance and keep their students safe while not inciting political fallout from various organizations and local, state, and federal leaders. May 2016 Office of Civil Rights Guidance In May 2016, the Department of Education’s Office of Civil Rights (OCR) issued new guidance regarding transgender students’ protections under Title IX. (Definitions of gender related terms are on the website of The National Center of Transgender Equality.) Title IX provides: “[n]o person... shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”1 Under Title IX, school districts that receive federal funds must have policies that effectively prevent discrimination against a student based on that student’s sex. OCR is the arbiter of compliance by school districts so the districts continue to receive federal funding. The OCR issued a Dear Colleague Letter (DCL), stating that Title IX prohibits, “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” As such, school districts must provide transgender students equal access to school facilities, programs, and activities even in circumstances in which other community members raise objections or concerns. The DCL expressly states, “as is recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages,” transgender students.2 Additionally, a “school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX.”3 OCR depends heavily on its guidance in issuing decisions when complaints are filed against school districts. DCL provides at least three distinct directives for school districts regarding accommodations for transgender students. First, schools must maintain a safe, nondiscriminatory environment. Texas has anti-bullying laws and school districts have policies preventing bullying, but the DCL states that a student being targeted by other students, school employees, or third-parties on school property, based on that student’s transgender status, is not bullying, but harassment violating Title IX, and districts must investigate it as such and take effective steps to stop the harassment. In fact, the Texas Association of School Boards (“TASB”) already has a model policy that is consistent with the DCL. This policy,
like the TASB’s other policies, is made available to school boards in Texas to be considered and adopted. Under TASB’s model Policy FFH (LOCAL), harassment against students based on gender stereotypes is prohibited: Gender-based harassment includes physical, verbal, or nonverbal conduct based on the student’s gender, the student’s expression of characteristics perceived as stereotypical for the student’s gender, or the student’s failure to conform to stereotypical notions of masculinity or femininity. Examples of gender-based harassment directed against a student, regardless of the student’s or the harasser’s actual or perceived sexual orientation or gender identity, may include offensive jokes, name-calling, slurs, or rumors; physical aggression or assault; threatening or intimidating conduct; or other kinds of aggressive conduct such as theft or damage to property. (emphasis added) This policy, adopted by most school districts, has been in place for several years and already complies with OCR’s guidance. Second, schools must conform identification documents, names, and pronouns. According to the DCL, schools must treat transgender students consistent with their gender identity even if their education records or identification documents indicate the student’s sex assigned at birth is different than the student’s gender identity. This specifically includes using pronouns and names consistent with the student’s gender identity. Districts also cannot require medical documentation that the student is transgender. Under OCR guidance, failure to adopt these policies and implement them may result in a hostile environment for the student and be in violation of Title IX. In Texas, some students have gone to local courts to get orders to change official records to reflect the student’s gender identity. Third, schools must conform the poli-
cies of sex-segregated activities and facilities. The DCL says that transgender students must be permitted access to restrooms and locker rooms that coincide with transgender students’ gender identities. Districts must review whether or not a transgender student can play on sport teams that are in line with the students’ gender identity, e.g. play on the girls’ basketball team if the student is a transgender female. Here, OCR guidance conflicts with procedures used in Texas by its largest pseudo-government extracurricular organization, the University Interscholastic League (UIL). This is an organization consisting of most of the school districts in Texas which establishes the rules and regulations regarding athletic competition and other extracurricular activities, including girls and boys basketball, cross country, golf, soccer, swimming and diving, and track and field. UIL is responsible for organizing and operating most of the secondary level education sports leagues in Texas. There is a UIL rule that requires boys and girls to play on teams that correlate with their sex assigned at birth.4 This rule conflicts with OCR guidance. According to the DCL, school districts must also accommodate transgender students in housing and overnight accommodations. Districts cannot require a transgender female to sleep with males; nor can the school assign the student to her own room simply because the student’s sex assigned at birth is male, especially if students are typically assigned rooms to share with other students. According to OCR, such action simply to avoid controversy would be discriminatory and violate Title IX.5 The housing and restroom accommodations are the most problematic legal quandary for districts, because these are the issues that political and community leaders have fought against, citing privacy issues and safety concerns. The DCL notes that privacy concerns regarding other students are not sufficient to mandate transgender students to unisex restrooms or locker rooms.6
Applicable and Current Case Law Because of limited case law regarding Title IX and transgender students, the DCL considered Title VII case law regarding transgender employees and discrimination claims based on sex.7 In 2016, at least two federal courts ruled on discrimination claims under Title IX made on behalf of individual transgender students.8 Neither case is binding on Texas courts, but both focused on OCR’s interpretation of Title IX protections for transgender students and agreed that such decisions are within OCR’s administrative powers and applicable under the current law. One case will be in front of the U.S. Supreme Court soon, and the other has been appealed to the Seventh Circuit Court of Appeals. Both of these recent decisions ruled that OCR’s interpretation of Title IX was within its powers and scope, and that because OCR has jurisdiction over Title IX, its guidance on Title IX and transgender students is applicable. The decision in Wisconsin also stated that preventing the student
from using the facility of his gender identity may be a violation of the Equal Protection Clause under the Fourteenth Amendment. In Texas, state leaders have expressed concerns about overreaching by OCR in implementing Title IX protections for transgender students. On May 25, 2016, Texas and other states sued the Department of Education (“DOE”) and other federal agencies seeking declaratory and injunctive relief claiming the agencies’ interpretation of federal laws and transgender issues was a misuse of their rulemaking authority.9 On August 21, 2016, the Court ruled that an injunction was proper because OCR failed to comply with the Administrative Procedure Act by: (1) foregoing the APA’s notice and comment requirements, and (2) issuing directives that contradict existing legislative and regulatory texts. The Court ruled that a preliminary injunction was proper because the U.S. Supreme Court issued a stay on the lower court decision in G.G. ex rel. Grimm v. Gloucester
Cnty. Sch. Bd. until the Supreme Court reviewed the appeal from the Fourth Circuit Court of Appeals. According to the Court, the DOE’s definition of “sex” within its own regulations is not ambiguous and is specific to one’s sex assigned at birth, and that Congress’s intent when Title IX was passed and enacted was specific to one’s sex assigned at birth. The Court stated that the injunction should apply nationwide against OCR’s enforcement and it remains in place until the Court has made a final decision in this case or until the Fifth Circuit Court of Appeals takes additional action. The Obama administration has appealed this case; however, there is no guarantee that the new administration will continue the appeal. The Court’s decision means that OCR cannot currently take action against a school district that does not comply with its guidance, but it also does not prevent a school district from voluntarily complying with OCR’s guidance. The Court’s decision also does not necessarily prevent a person, on behalf of
a student, from taking individual action in federal court against a school district under Title IX. Regarding district procedures for transgender students, the Texas Attorney General issued an opinion in 2016 stating: “[t]o the extent that [procedures regarding students] limit parental access to information about their child and operate to encourage students to withhold information from parents contrary to the provisions in chapter 26 [of the Texas Education Code], they violate state law.”10 In January, Texas State Senator Lois Kolhorst filed Senate Bill 6 in the Texas Legislature, whose current language would prohibit political subdivisions, including school districts, from allowing transgender persons (students) from using the restroom of their identity and require them to use the restroom documented on their birth certificate. The legislation would also increase the penalty of certain crimes if those crimes are committed in restrooms/bathrooms. The bill has not had a committee hearing in the
Texas Senate, but it is already receiving significant pushback from businesses because of the results of similar legislation (House Bill 2) passed in North Carolina. To say that the current status of transgender protections is unsettled is an understatement. School districts are currently caught in a quandary, waiting to see what kind of action OCR might take, while also watching the actions of its own state leaders and the courts. As more decisions are issued, school districts should have a clearer understanding of how to best protect transgender students; however, before taking additional steps regarding policy related to transgender students, school districts should contact and get advice from their own counsel as the legal ground continues to shift. Bradley Domangue is an attorney at Thompson & Horton, LLP, who focuses on representing schools, colleges, and other public entities. Prior to joining Thompson & Horton, he worked in education law and
policy as an attorney, a legislative aide, a senior policy analyst, and a journalist. Endnotes 1. 20 U.S.C. § 1681(a), et seq. 2. Dear Colleague Letter issued by U.S. Department of Justice, Civil Rights Division, and U.S. Department of Education, Office of Civil Rights. (May 13, 2016) at 2. 3. Id. 4. UIL Rules Subchapter J, Non-discrimination in UIL Contest, UIL Constitution and Contest Rules, Section 360 “Non-discrimination Policy”. 5. Dear Colleague Letter at 2. 6. Id. at 2-3; Township High School District 211 (Ill.), Resolution Agreement, OCR Case #0514-1055 (December 2, 2015). District can offer students with privacy concerns access to unisex bathrooms in lieu of requiring transgender students to use unisex facilities. 7. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79 (1998); Macy v. Dep’t of Justice, Appeal No. 012012082 (U.S. Equal Emp’t Opportunity Comm’n Apr. 20, 2012). 8. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 WL 1567467, (4th Cir. Apr. 19, 2016); Whitaker v. Kenosha Unified School District No. 1, Case No. 16-cv-943-pp, (E.D. Wis. September 22, 2016). 9. Texas, et al. v. U.S. Depart. of Ed., et al., Case No. 7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex., Aug. 21, 2016). 10. Tex. Att’y Gen. Op. No. KP-0100 (2016) at 6.
By Susan Soto
A Parentâ€™s Guide to Working with School Districts to Resolve Conflicts Involving Unique Needs of LGBTQ Students
tudents frequently enter the public school system without effective support strategies that address unique student needs. The resources available to school-aged children coping with the challenges associated with nontraditional gender identification or expression, or sexual orientation, in a public school setting are either non-existent or hard to identify. When students do not fit the traditional mold, it is often difficult for those students and their parents to convince school administrators that additional support is needed and to explain what that support might look like. A proactive approach, starting at the campus level with an individual teacher or school counselor, is likely the most effective approach for a family to take as it advocates for a child’s equal access to school district activities and facilities as an LGBTQ student. Parents also have the option to escalate the issue to state or federal agencies if local officials are unwilling to accommodate this special population’s unique needs. Initiate a Dialogue with School Personnel. Ideally, parents should initiate a dialogue with school personnel at the beginning of each school year. If, for example, a pre-kindergarten boy prefers to play at home with toys that are traditionally thought of as feminine or a middle school girl expresses her gender as male and prefers a masculine nickname, a teacher conference early on will help set a collaborative tone and provide proactive insight and understanding for the teacher or team of teachers responsible for the student during that school year. It would be appropriate for a family to retain an attorney even at this early stage, so that the attorney can review relevant district policy and state or federal laws with the family and provide an overview of the student’s rights and family’s options if they are unsuccessful in partnering with the school in this special circumstance.
At a school law conference in 2015, various speakers encouraged Texas school districts to review their local nondiscriminatory policies and regulations to ensure that those guiding documents include language that addresses genderbased discrimination of students who have adopted an alternate gender identification or who fail to conform to gender stereotypes.1 If the school district has not yet developed policy and procedure relevant to LGBTQ students, parents will want to be aware of that fact. If it has developed such protocols, parents will want to know what those policies and procedures are before meeting with school personnel. Organize a Campus Committee. An attorney for the family could advocate for the creation of a campus committee to develop specific strategies to support the LGBTQ student. While certainly not as formal as the traditional academic intervention committee or special education committee generally found in Texas schools,2 the campus committee may consist of a team of school staff and other resource personnel that meet to address questions such as: (1) use of the student’s legal name versus a preferred nickname, (2) use of a specific pronoun in reference to the student, (3) how to apply the school district’s dress or grooming rules to the student, and (4) appropriate access to restrooms, locker rooms, and athletic programs. The committee’s recommendations would provide specific guidelines for parties on both sides, many of whom may never have had to address these specific questions in the past. File Grievance with the School District. If the student’s family is met with resistance, or the school refuses to work collaboratively to provide a support system for the student at the campus level, then the matter would most likely escalate to the upper administration of the district,
perhaps as a formal grievance under local school board policy or as an informal meeting where problems and solutions would be discussed. An attorney for the family should be involved at this stage, considering that the stakes become higher at the district level: first, an attorney would be aware of the statutory requirement to exhaust administrative remedies before filing suit (if it appears that a viable lawsuit may be looming)3 and second, if a formal grievance is filed, an attorney would best be able to draft the complaint and present the family’s concerns at the subsequent grievance hearing. Parents are often capable of progressing through the grievance process on their own, but many find it difficult to effectively advocate for their own children with the added stress and pressure of personal, emotional involvement in the situation. Many parents are also unaware of the time limits for filing a complaint with the school district and other procedural requirements, making the need for an attorney’s knowledge and expertise even greater at this stage. Families should be familiar with guidance available regarding genderbased harassment and discrimination. Important resources that an attorney should review with her clients in this type of situation include the Texas Education Code, local board policy and regulations, federal laws, and guidance from the U.S. Department of Education’s Office for Civil Rights issued as “Dear Colleague” letters.4 Parents must understand that federal civil rights laws protect all students from gender- or sexbased harassment and discrimination, including LGBTQ students. File an Administrative Complaint. After the appropriate local administrative grievance process has been exhausted, the student may file an administrative complaint with the Texas Education Agency or the U.S. Department of Education’s Office for Civil Rights to obtain additional assistance in securing equal access to school district activities and
facilities. Complaints may be submitted to the Texas Education Agency online, by facsimile, or by U.S. Mail and must be submitted within two years of an alleged violation.5 Complaints filed with the Office for Civil Rights may be submitted online, by facsimile, or by U.S. Mail and should be filed within 180 days of the last discriminatory act in the complaint.6 Filing a complaint can lead to real change. For example, in 2013 and 2014, the Office for Civil Rights reached agreements with the Arcadia and Downey Unified School Districts in California that outline specific actions that the districts must take to ensure that gender nonconforming students are able to participate fully and safely in the educational setting.7 The agreement documents are a good resource for parents who wish to start a conversation with their school district and provide concrete examples of appropriate support strategies for LGBTQ students, including (1) handling
school records in a confidential manner to ensure the student’s gender status is not revealed, (2) providing the student with access to gender-designated facilities appropriate to the student’s gender identification, (3) developing a plan to ensure the student has equal access to and opportunity to participate in programs and activities, (4) ensuring that the student is not disciplined for behaving or presenting in a manner that does not conform to stereotypical expectations of masculinity or femininity, and (5) conducting climate surveys and staff training.8 Conclusion From the LGBTQ student’s perspective, this area of law is still now emerging and the body of guiding precedent is small. However, with knowledge and understanding of current policy and law along with the professional advice of an attorney, students and their parents should be able to navigate a plan that provides
positive and effective support mechanisms for students who are a part of the LGBTQ community. Susan Soto is a former teacher and school principal. She represents teachers, students and parents in school legal matters across the State of Texas. Endnotes 1. Collins Sims, M. (2015, July). LGBTQ Student Issues. Session presented at the State Bar of Texas School Law Section Retreat, Galveston, TX. 2. An academic intervention committee meets regarding academic support and intervention a student might require. The special education committee, known as an ARDC, convenes at least annually to oversee a child’s special education services and curriculum. 3. Tex. Educ. Code § 22.0514. 4. http://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/ policyguidance/sex.html 5. http://tea.texas.gov/About_TEA/Contact_Us/Complaints/ TEA_Complaints_Management/ 6. http://www2.ed.gov/about/offices/list/ocr/qa-complaints. html 7. https://www.justice.gov/sites/default/files/crt/legacy/2013/ 07/26/arcadiaagree.pdf (Arcadia Agreement); https://www2. ed.gov/documents/press-releases/downey-school-districtagreement.pdf (Downey Agreement). 8. Id.
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Cokinos, Bosien & Young
Harris County, Texas
Government Agencies City of Houston Legal Department
By The Hon. Charles A. Spain
The Bar Comes Out in Houston
Houston lawyers and the organized bar protested Anita Bryant’s appearance at the 1977 State Bar convention, an event that is credited with galvanizing activism in the LGBT community. Images courtesy of the Houston LGBT History website, www.houstonLGBThistory.org
hy was Houston the first city in Texas where lawyers organized a local LGBT bar association? The answer is rooted in the 1960s and the 1970s, when the City’s LGBT community began to step out of the shadows. Old laws, which included the 1860 Texas sodomy statute1 and a 1904 Houston city ordinance banning crossdressing, also played a part.2 Early Struggles Both the sodomy and cross-dressing laws provided excuses for the police to harass gay men and lesbians. This included an infamous 1967 raid on a lesbian bar in which 25 patrons were arrested. In 1973, 24
Texas adopted the Model Penal Code, but did not decriminalize sodomy as the Model Code recommended. No longer a felony and titled under the ominously vague captions “homosexual conduct” and “deviate sexual intercourse” (yet another puritanical comment), intercourse between people of the same gender became a Class C misdemeanor in what is now section 21.06 of the current Penal Code. The first attempt to repeal section 21.06 was made in 1975 by Houston Representative Craig Washington, resulting in open derision and gay baiting on the floor of the Texas House of Representatives. Representative Washington commented, “I debated on the merits, they debated on the prejudice.” The year 1973 marked the beginnings of organized politics focused on the LGBT community in the City when gay activists helped elect a progressive mayor, Fred Hofheinz. This led to the 1975 formation of the Houston Gay and Lesbian Political Caucus (now the Houston GLBT Political Caucus), formed by Pokey Anderson, Bill Buie, Hugh Crell, and Keith McGee—the first such group in the American South. Also joining Anderson as early and out community activists were Ray Hill, Jerry Miller, and Rev. Bob Falls. Lawyers and the organized bar marched into Houston LGBT history in a big way in 1977. The State Bar of Texas held its annual convention at the downtown Hyatt Regency Hotel featuring national antigay crusader, Anita Bryant. Thousands of members of the LGBT community and its sympathizers took over downtown streets, creating what is now considered to be the first Houston Pride parade. This activism led to: the 1979 election of Eleanor Tinsley (a caucus-endorsed city council member); the 1980 repeal of the City’s cross-dressing ordinance (a fight led by then-law student Phyllis Frye); and the 1981 election of Kathy Whitmire as mayor. The LGBT community in Houston was on a roll. The HIV/AIDS Backlash What seemed to be a growing and pro-
gressive acceptance of the LGBT community was cut short by the arrival of HIV and AIDS in 1981. In a stunning backlash, a 1984 City ordinance championed by Whitmire and Tinsley barring municipal and private employment discrimination based on sexual orientation was overturned by Houston voters by a 4-to-1 margin in 1985. It was a new and harsh reality. Meanwhile in Dallas, a civil lawsuit challenging the “homosexual conduct” statute was brought by lawyers on behalf of a closeted membership group, aptly named the “Texas Human Rights Foundation” (THRF). The plaintiff, Don Baker, sued the Dallas County District Attorney, Henry Wade, and the district court declared the statute unconstitutional. The Attorney General did not appeal, but the Potter County District Attorney did, joined by the group, Dallas Doctors Against AIDS. Both the district court and a panel of the Fifth Circuit denied the appeal, but the en banc court found standing for the appeal and in 1985 reversed the district court by a 9–7 vote.3 On June 30, 1986, the Supreme Court handed down a 5–4 opinion in Bowers v. Hardwick, upholding Georgia’s sodomy statute and ending any chance for THRF to take Baker v. Wade to the high court.4 Bowers profoundly shocked and angered the LGBT community with both its result and dismissive reasoning. A State Court Assault on the “Homosexual Conduct” Statute However, Patrick Wiseman, the lead attorney in Baker v. Wade, regrouped, and in 1990 filed a new civil test case for THRF in state district court, Morales v. State. The State under then-Attorney General Jim Mattox, did not actively defend the “homosexual conduct” statute, which the district court ruled unconstitutional under the Texas Constitution. Newly elected Attorney General, Dan Morales (no relation to the lead plaintiff), actively defended the statute on appeal. But in 1992, the Austin Court of Appeals affirmed, reasoning that the statute violated the right to privacy and that pub-
tutional under the facts in Morales.5 To lawyers defending the LGBT community, it was better than a loss on the merits, but a somewhat contrived dodge of the real issue.
This Week in Texas (Apr. 26–May 2, 1991) (photo courtesy of houstonLGBThistory.org)
lic morality, the State’s only argument, was insufficient to justify the intrusion on privacy. In a somewhat tortured 1994 opinion, the Texas Supreme Court held that due to the bifurcation of civil and criminal appeals at the highest level of the Texas court system, the trial and intermediate appellate courts (which have no civil-criminal jurisdictional limitations), had no jurisdiction to declare the “homosexual conduct” statute unconsti-
LGBT Lawyers Come out of the Closet (Sort of) In 1990, Ryan White died of AIDS-related complications. He was only 18. His death was arguably the first AIDS-related death which captured the general sympathy of the American public. Treatments for HIV/ AIDS were just beginning to be approved by the FDA. It is fair to say that this was a grim period for the LGBT communities. But change comes out of adversity. Shimon Kaplan, a Beaumont legal aid lawyer who also holds a Ph.D. from Columbia University, decided something had to be done. Kaplan was friends with John Paul Barnich, a Houston lawyer who was also a community organizer for HIV/AIDS issues, and the two determined that a local bar association for gay and lesbian lawyers was needed. Neither Kaplan nor Barnich sought the spotlight, and, as a result, the early history of the association they founded was not well documented. What is known is that on August 22, 1990, Kaplan and Barnich, joined by lawyers Mitchell Katine (an early leader in HIV law) and Mende Snodgrass, incorporated the Bar Association for Human Rights of Greater Houston, Inc., also known as BAHR. Much like THRF, BAHR hid its LGBT nature. As stated in its articles of incorporation: “The specific purpose of the Corporation is to promote human rights through all lawful means.” The first year was consumed with the board of directors debating membership issues. After much hand wringing, a decision was made to elect the board from the lawyer members, but to keep member names confidential. The board began designating officers in April 1991, choosing Clyde Williams as the first president (1991–1994). Katine was its second president (1994–1995), followed by Chris Bacon (1995–1996). Despite the concession of a confidential
Image courtesy of the Houston LGBT History website, www.houstonLGBThistory.org
membership list, few if any closeted lawyers joined BAHR. In BAHR’s early years the members consisted primarily of solo practitioners, with the notable exception of Bacon, a young associate at Vinson & Elkins, and also the first openly gay lawyer at a major Houston law firm. BAHR held several CLEs throughout the year, a holiday party, and an annual business meeting. A newsletter, which reported relevant LGBT legal issues, also began during Bacon’s presidency. The BAHR Reporter was compiled by University of Houston Law Center students under the direction of Professor Mary Anne Bobinski, filling an important need in the preGoogle world. Formation of the State Bar Section In May 1996, good news arrived from the U.S. Supreme Court with Romer v. Evans, which held that an amendment to the Colorado state constitution that prohibited laws protecting the rights of homosexuals was unconstitutional.6 Things were 26
improving in the fight against HIV, which was no longer a death sentence. There was hope. And BAHR became the vehicle to move forward on a statewide level. After two unsuccessful challenges to the “homosexual conduct” statute by THRF, Wiseman voiced his wish that activist gay lawyers branch off from the State Bar Individual Rights and Responsibilities Section and form their own section. In 1996 Katine, then a young associate at the firm of Wiseman’s friend, Gerry Birnberg, collected the 50 signatures then needed to form a new State Bar section and asked BAHR president Connie Moore and BAHR board member Charles Spain to join him in presenting the petition at the October 4, 1996 State Bar Board of Director’s meeting in Fort Worth. Frye wrote a letter to the board to protest the proposed name, the Gay and Lesbian Issues Section, because it was not transgender inclusive. Despite the trio’s lobbying and advocacy, the board narrowly defeated the measure. Adding to the loss’s sting was a parade of directors
who voted against the proposed section, assuring the trio that the rationale was not anti-gay, but instead motivated by the fact that the issues could be “better represented within the existing Individual Rights and Responsibilities Section.” What initially seemed like a defeat, quickly turned into good news. After the vote against the proposed section, the Honorable Norman W. Black, judge of the United States District Court for the Southern District of Texas and the federal judiciary’s liaison to the State Bar Board of Directors, pointedly and publicly criticized the board. Judge Black was quoted in the Texas Lawyer for his rebuke: “I’ve always learned a lot about my fellow members from these meetings... Today’s the first time I wasn’t real proud.”7 The State Bar promptly re-gamed the system by passing more stringent rules for forming a section, but the 1997–1998 BAHR president, Anne Pike, another Vinson & Elkins associate, started the process to create a new transgender-inclusive State Bar section. BARH
collected the 200 signatures needed and jumped through the rest of the new hoops. The State Bar Board of Directors voted on April 17, 1998 to approve the creation of the Sexual Orientation and Gender Identification Issues Section, the first such section of any unified bar in the nation. Judge Black’s 1996 rebuke was republished in the Texas Lawyer days before the board meeting.8 BAHR recognized Judge Black the year before at its spring 1997 annual meeting for his role as an outspoken guardian of human rights. Judge Black told the BAHR members that his deep, personal commitment to human rights was kindled as a Jewish youth growing up in segregated Houston, matured throughout his judicial career, and nurtured through his collegiality with individuals such as Fifth Circuit Chief Judge John Brown, who served during the Civil Rights Era. Judge Black exhorted the BAHR members to continue the fight for an LGBT law section, concluding with words attributed to Winston Churchill: “Never give up.” Unfortunately, Judge Black did not live to see BAHR’s success in 1998. BAHR Comes Out… Over the next seven years, BAHR maintained a very close relationship with the State Bar section because the first seven section chairs were from the Houston area. BAHR finally dropped the confidential status of its membership. In spring 2000, BAHR changed its name to the Stonewall Lawyers Association of Greater Houston, Inc. To recognize its long tradition of welcoming non-lawyers as associate members, in fall 2002 the name was changed to its current form—Stonewall Law Association of Greater Houston. Stonewall Law is an affiliate of the National LGBT Bar Association, and since 2010 has partnered with other local minority bar associations to promote diversity initiatives. Stonewall Law’s relationship with the Houston Bar Association has evolved over the years. Stonewall members have always been welcome to participate in the AIDS Outreach Committee of the HBA, and during the presidency of Jerry Simoneaux
(2002–2004), the HBA president invited Stonewall Law to participate in the HBA monthly local bar leader lunches. Over the years there have been discussions about Stonewall Law transforming into an LGBT law section of the HBA. Stonewall Law is now 26 years old, and the current president is Ashlee Dunham. The world has changed for the LGBT community since the 1969 Stonewall riots. The U.S. Supreme Court has declared the Texas “homosexual conduct” statute unconstitutional, overruling its regrettable Bowers opinion,9 and finally recognized marriage equality in Obergefell v. Hodges.10 Stonewall Law today focuses on networking, CLEs for its members, recognizing emerging leaders from recent LGBT law school graduates, and working with other local minority bar associations to improve diversity in the legal profession. Six sessions after Lawrence v. Texas the Texas Legislature still has not repealed the unconstitutional “homosexual conduct” statute, and marriage equality is not altogether welcome in the Lone Star State. The line between zealous advocacy on behalf of clients and public LGBT-activism remains narrow. Stonewall Law is now proud to have honorary members such as Phyllis Frye, Kathy Hubbard, Ray Hill, and Annise Parker (former Houston mayor). They are role models for us all. As Judge Black told Stonewall Law members 19 years ago, “Never give up.” We won’t. The Hon. Charles Spain is an Associate Municipal Court Judge in Houston and an LGBT activist.
Sodomy Laws in America, 1861–2003 (Viking 2008). The author is flattered to be mentioned on page 310 as one of a “new generation of legal activists.” 3. Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev’d, 769 289 (5th Cir. 1985) (en banc). 4. Bowers v. Hardwick, 478 U.S. 186 (1986). The author of this article was a Baylor law student when Bowers was handed down and that morning announced to his fellow students and professor in a family law class that “The Supreme Court just issued the second worst opinion in the Court’s history.” The author was not yet out of the closet. 5. State v. Morales, 826 S.W.2d 201 (Tex. App.—Austin 1992, pet. ref’d [by Court of Criminal Appeals]), rev’d on other grounds, 869 S.W.2d 941 (Tex. 1994). The Texas Supreme Court acknowledged that the jurisdictional problem in Morales was not present in a similar civil case from the Austin Court of Appeals declaring the statute unconstitutional. 869 S.W.2d at 942 n.5; see City of Dallas v. England, 846 S.W.2d 957 (Tex. App.—Austin 1993, writ ref’d w.o.j.). 6. Romer v. Evans, 517 U.S. 620 (1996). 7. Janet Elliott, Bar Denies Gay Issues Section, TEX. LAW., Oct. 14, 1996, at 1. 8. Janet Elliott, Two New Bar Sections Garner Support, TEX. LAW., Apr. 13, 1998, at 1. In 2010 the section was renamed the LGBT Law Section. 9. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“Bowers was not correct when it was decided, and it is not correct today.”). The defendants, John Lawrence and Tyron Garner, were arrested in Houston. They called Hill from the Harris County jail, who referred them to Katine, who served as their local counsel. Lawrence vindicated the author’s opinion of Bowers. See supra note 4. The Lawrence legal team did not emphasize that the statute was arguable void under England, see supra note 5, instead successfully going for a nationwide win. 10. Obergefell v. Hodges, 135 S. Ct. 2071 (2015) gary
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Endnotes 1. Act passed Feb. 11, 1860, 8th Leg., R.S., ch. 74, art. 1, art. 399c, 1860 Tex. Gen. Laws 95, 97, reprinted in 4 H.P.N. Gammel, THE LAWS OF TEXAS 1822–1897, at 1457, 1459 (“If any person shall commit with mankind or beast the abominable and detestable crime against nature, he shall be deemed guilty of sodomy, and on conviction thereof, he shall be punished by confinement in the penitentiary for not less than five nor more than fifteen years.”). 2. The source for the much of the article’s historical background comes from the author’s three decades of experience as an LGBT activist and the fellow travelers he knows. The best general work on the subject is Yale Professor William N. Eskridge Jr.’s Dishonorable Passions:
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By The Hon. Josefina M. Rendón
How Houston’s Municipal Courts Made LGBT History
estled in the western edge of Downtown Houston in the historic Sixth Ward is the Herbert W. Gee Municipal Courthouse. Named after the late highly-esteemed Judge Herbert W. Gee, the threestory Courthouse is home to seventeen of the City of Houston’s municipal courts. The municipal courts are often called “traffic courts” because a majority of their caseload consists of traffic cases.
However, municipal courts also have jurisdiction over Class C misdemeanor cases under the Texas penal code, health code and other state code fine-only violations. These courts also handle an array of city ordinance violations that include health, habitability, parking, fire safety and others. The caseload handled by Houston Municipal Courts is the largest in Texas and third largest in the nation.1 Coined by many as “the Peoples’ Court” (perhaps because Municipal Courts are the only courts most Houstonians will ever experience in their lifetimes), municipal courts have faithfully served the Houston community. Houston has risen to become the most diverse city in the nation2 and the Municipal Courts reflect such diversity. Of the courts’ 66 judges (21 full-time and 45 part-time), 53 percent are female and 47 percent male; 36 percent are White, 35 percent Black, 20 percent Hispanic and nine percent are Asian or “other.” The total municipal personnel of over 350 employees is equally diverse (50 percent Black, 30 percent Hispanic, 15 percent White and four percent Asian or “other”). But the diversity of Houston’s Municipal Courts is not just racial and ethnic. The Municipal Courts are also wellknown for trailblazing LGBT issues. Strongly supported by local government leaders, these courts have made history, not only in Texas, but in the United States, by having the first openly gay and first openly lesbian judges in Texas, as well as the first openly transgender judge in the nation. These pioneers are respectively, Judge John Paul Barnich, Judge Barbara Hartle and Judge Phyllis Frye. Judge John Paul Barnich In 1999, Houston’s Mayor Lee Brown and attorney John Paul Barnich made Texas history when Mayor Brown appointed Barnich as the first openly gay
Judge Barbara Hartle In 2006, history was made again when Mayor Bill White appointed Barbara Hartle as Associate Municipal Judge, making her the first openly lesbian judge in Texas. In 2009, she became a full-time municipal judge, and in 2010, Mayor Anise Parker appointed her Director and Presiding Judge of the Municipal
Courts.8 Hartle became an attorney in 1999 after obtaining a Master’s degree in social work from St Edward’s University and a law degree from St. Mary’s University. She had previously been a corrections officer with the Department of Criminal Justice and a certified peace officer. After earning her law degree, she became a prosecutor for the Austin Municipal Courts until 2002, when she moved to Houston with her partner of many years, Vallarie Fisher.9 Through her leadership, Judge Hartle positively changed the Municipal Courts working conditions and the quality of services provided to the public. In fact, she was recently recognized as having lead the Municipal Courts “with a strong but sensitive hand.”10 Other judges have equally positive things to say about Judge Hartle. Judge Charles Spain who has worked with the judiciary for 27 years stated: “You meet the whole spectrum of talent, work ethic, ego, empathy (or lack thereof) and understanding of the justice system’s role in governance. Judge Hartle is in that rarefied group that truly gets it. The City of Houston is lucky to have her as a public servant, and as the first out lesbian judge in Texas, she is the best role model the LGBT community could hope for.” Judge Arturo de Leon also praised her stating, “My admiration for Judge Hartle has increased with every interaction I’ve had with her since 2006, when she was appointed Associate Judge at the Municipal Courts. As a sitting judge, she was always prepared, fair and courteous with the citizens of Houston and with her staff. As presiding judge, she is a positive leader with a team-oriented approach. Judge Hartle listens to both sides of an issue before making her decision or formulating a response. Judge Hartle leads by example and never expects you to do something she would not be willing to do. Personally, Judge Hartle has been a friend, always supportive and never too busy to listen or just ask how I am doing.”
Judge Phyllis Frye Judge Phyllis Frye was appointed Associate Municipal Judge in 2010 by Mayor Annise Parker, making her the first openly transgender judge in the nation. Judge Frye’s story has been recognized nationally. “Nearly four decades before Caitlyn Jenner introduced herself to the world, Phyllis Randolph Frye came out as a transgender woman in a far less glamorous way,”11 stated the New York Times article praising the story of the young Eagle Scout and high school R.O.T.C. commander. “I was so good at being a guy that I should have won an Oscar,” Judge Frye said. “I was an extremely good Boy Scout—but I would have rather been in the Girl Scouts. I was the R.O.T.C. commander of my high school—but I would have rather been the head cheerleader. And I cross-dressed whenever I could, in private.”12 She added: “My parents would have pitched me out then if I told the truth,” she went on. “Because when I did come out, a decade later, my dad said, ‘You’re dead to me if you do this.’ And he kept his word.”13 Among many accomplishments early in life, Judge Frye was also a member of the Texas A&M Corps of Cadets, a lieutenant in the U.S. Army, and an engineer. Acknowledging these accomplishments, Judge Frye once wrote: “As evident from the above accomplishments, I did not become a woman because I could not cut it as a man. I was very successful as a man, but it did not fit my unshakable in-thegut self-image of who I really was.”14 Judge Frye’s life’s story is one filled with struggles that she has admirably overcome. Still married after 43 years, it was her wife who encouraged her to finally come out in 1976. Through the years, she has been ostracized by neighbors, fellow law students, colleagues and, surprisingly, even by some gay and lesbian activists. However, she has over-
Photo: Judge Robert Rosen
judge in the state. Judge Barnich, whose partner died of AIDS in 1994, had been an early activist in the AIDS movement since 1984, having served as the first chairman of Houston’s AIDS Foundation Board.3 With a psychology degree from Michigan State University, Barnich became a teacher with the Houston Independent School District in the 1970’s, and was instrumental in creating HISD’s High School for Law Enforcement and Criminal Justice.4 He graduated from South Texas College of Law in 1980. Judge Barnich’s sexual orientation was brought up during his appointment confirmation hearing conducted by the Houston City Council. A City Council member asked whether Barnich, as a gay judge, would be different than a heterosexual judge. “Barnich responded that he would upgrade the courtroom’s sound system in order to play show tunes.”5 “He was a huge ‘bear’ of a man with a matching smile,” says attorney Fran Brochstein, who knew Barnich long before he became a judge. “He had a ‘wicked’ sense of humor. When I would see him, all I had to say was ‘what’s going on?’ and he could make me laugh for 30 minutes.”6 Judge Barnich died in 2009 at age 63. Those who knew him remember his great sense of humor as well as his thoughtful, compassionate and friendly disposition. As a friend stated in an obituary to Barnich, “He left this world a much better place than it would have been if he’d never been in it.7
come those obstacles to be a successful attorney and an Associate Judge. She now practices with Frye, Oaks, Benavidez and O’Neil, PLLC, primarily helping LGBT clients. Other LGBT Municipal Judges Who Followed Other openly LGBT judges who served in the Municipal Courts are: Steven Kirkland, Charles Spain, Stephen Barquet, Kerri Dorman, Jerry Simoneaux and Christopher Gore. Judge Steven Kirkland had served for seven years in the Municipal Courts before becoming Harris County’s first openly gay Civil District Judge in 2009. After graduating cum laude from the University of Houston Law Center, Judge Kirkland worked as an environmental attorney and began to navigate local politics in 1991 when his friend, a young Annise Parker, then seeking a seat on the Houston City Council, asked him to manage her campaign.15 He was later appointed by Mayor Lee Brown in 2001 as an Associate Municipal Judge and then a full-time judge. As a Municipal Judge, he was lauded for founding Homeless Court, a program helping homeless defendants dispose of their municipal citations. After four years as District Judge, he lost his bid for re-election, but was reelected Civil District Judge in 2016. Judge Charles Spain, a native Houstonian, was appointed Associate Municipal Judge by Mayor Annise Parker in November of 2010. Growing up, he dealt with being a closeted gay teenager by trying to be the perfect Eagle Scout, serving on summer camp staff and, after graduation from Rice University, becoming a professional Scout executive in Dallas. In 1985 he left the Boy Scouts to attend Baylor law school where he became an LGBT activist. After graduation, he clerked for the Texas Supreme Court and worked as a staff attorney for the Austin Court of Appeals. He returned to Houston in 1994 and promptly 30
joined the board of the local LGBT bar association, now known as Stonewall Law Association of Greater Houston. He served as senior staff attorney for the First Court of Appeals until 2012. Judge Spain is a co-founder and past chair of the State Bar LGBT Law Section and recipient of the section’s highest recognition, the Judge Norman Black Award. Judge Sidney J. Braquet was appointed by Mayor Bill White in March 2009 and served as Associate Municipal Judge for two years. He currently practices probate law and estate planning and represents some nonprofit corporations. Judge Braquet previously served as Director of the Harris Social Services Department, which included the adult indigent guardianship program. He once stated that he sought to be a municipal judge to give back to the community: “I thought my job as a judge was to treat all persons with the dignity and respect we all deserve–regardless of our differences.” Judge Kerri Dorman was appointed in 2008 by Mayor Bill White. She has been an attorney since 1989, after graduating from the University of Texas School of Law. Judge Dorman now lives in Yountville, California. She has been involved in LGBT activism through the Hollyfield Foundation, an organization that helps fund LGBT and HIV/AIDS organizations through grants. Judge Jerry Simoneaux was appointed Associate Municipal Judge in 2015. He is a 2001 graduate from South Texas College of Law. When off the bench, he practices with fellow attorney and LGBT leader, Fran Watson, concentrating on guardianship, probate and estate planning. He was staff attorney for Harris County Probate Court No. 1 under Judge Kathy Stone and a former adjunct professor at South Texas College of Law. Judge Christopher Gore was first appointed as Associate Municipal Judge in 2013 by Mayor Annise Parker. He is
a 1999 graduate of South Texas College of Law and has been a successful criminal lawyer for the last 16 years. Gore has lived in Houston all of his adult life. Married to his spouse for three years, they have been together for 23 years. He is a former president of the Municipal Justice Bar Association. Originally asked in 2008 to apply to become an Associate Judge, he declined because much of his practice was in Houston’s Municipal Courts. This would have meant having to give up that part of his practice in order to avoid any possible conflict of interest. He was asked again by Judge Hartle in 2013 and decided to apply, in effect, giving up that part of his practice. Judge Gore is also a prosecutor in seven other municipalities and was recently appointed Associate Judge in the City of La Porte. Still Making History and Impacting the Community Most of these judges agree that their job is important to our community. Perhaps Judge Christopher Gore said it best when he reflected that most people “may spend their entire lives without being sued, filing a lawsuit, or having criminal charges filed against them.” The only contact most people will have with our judicial system is in our Municipal Courts. “I feel like I have learned more in the last 3½ years from working as associate judge than I have learned in the last 10 practicing criminal defense law,” Gore said. “Being a judge has taught me the importance of humility and grace when approaching my duties. I recently assisted a young Middle Eastern man in the annex court. He was terrified, literally shaking like a leaf. I realized then that even though our courts handle only class C misdemeanors, they have a profound impact on people’s lives. This is why I believe our job is so important.” On June 26, 2015, when the United States Supreme Court issued the 5-4 Obergefell v. Hodges opinion finding same-sex marriage a constitutional right, the Houston Municipal Court-
house performed one of the first samesex marriages in Harris County when two young women, Tanika Leija and Christina Pruneda, immediately made their way to the Municipal Courthouse upon receiving the news that municipal judges would be extending their weddings service to same-sex couples.16 Houston Municipal Courts have been described as a “Model of Diversity,”17 embracing Houston’s ever-changing social landscape, with courts that reflect the values of the citizens. More so, Houston Municipal Courts have been a model of inclusion, tolerance and acceptance; an example to be followed.
cember 2016. Her replacement, Judge Elaine Marshall, appointed by current Mayor Sylvester Turner, is the first African American Judge in Houston Municipal Court History. 9. See supra note 1. 10. Id. 11. Deborah Sontag, Once a Pariah, Now a Judge: The Early Transgender Journey of Phyllis Frye, NEW YORK TIMES, Aug. 29, 2015, http://www.nytimes. com/2015/08/30/us/transgender-judge-phyllisfryes-early-transformative-journey.html?_r=0. 12. Id. 13. Id. 14. Phyllis R. Frye, The International Bill of Gender Rights vs. The Cider House Rules: Transgenders Struggle with the Courts Over What Clothing They Are Al-
lowed to Wear on the Job, Which Restroom They are Allowed to Use on the Job, Their Right to Marry and the Very Definition of Their Sex, WM. & MARY J. WOMEN & L. 133 (2000). 15. Michelle Risher, An Interview with the Honorable Judge Steven Kirkland: What Is Behind the Wedge Splitting the Harris County Democratic Party, OUTSMART MAGAZINE (May 21, 2012), http://www. outsmartmagazine.com/2012/05/an-interviewwith-the-honorable-judge-steven-kirkland/. 16. Houston Municipal Courts Department Performs First Same-sex Wedding, HOUS. CHRON., June 26, 2015, 12:45 p.m., http://www.chron.com/neighborhood/ spring/news/article/Houston-Municipal-CourtsDepartment-performs-9703242.php. 17. See supra note 1.
The Hon. Josefina M. Rendón has been a Houston Municipal Judge for 29 of the last 33 years. She was first appointed in 1983 by Mayor Kathy Whitmire. A graduate of the University of Houston Law Center, she is a former Civil District Judge, a mediator and an editorial board member of The Houston Lawyer. Endnotes 1. Brandon Wolf, Running Houston’s Municipal Courts with a Strong but Sensitive Hand, OUTSMART MAGAZINE (June 28, 2016), http://www.outsmartmagazine.com/2016/06/running-houstonsmunicipal-courts-with-a-strong-but-sensitivehand/. 2. Michael O. Emerson, Jenifer Bratter, Junia Howell, Wilner Jeanty, Houston Region Grows More Ethnically Diverse, With Small Declines in Segregation. A Joint Report Analyzing Census Data from 1990, 2000, and 2010, KINDER INSTITUTE FOR URBAN RESEARCH & HOBBY CENTER FOR THE STUDY OF TEXAS, available at: http://kinder. rice.edu/uploadedFiles/Kinder_Institute_for_Urban_Research/Gabriel/Houston%20Region%20 Grows%20More%20Ethnically%20Diverse%20 1-22.pdf 3. Allan Turner, John Paul Barnich, First Openly Gay City Judge, Dies at 63, HOUS. CHRON., Feb. 3, 2009, http://www.chron.com/news/houston-deaths/ article/John-Paul-Barnich-first-openly-gay-cityjudge-1743830.php 4. Id. 5. R.I.P.: John Paul Barnich (1945-2009) http://www. movingpictureblog.com/2009/02/rip-john-paulbarnich-1945-2009.html 6. Fran Brochstein, John Paul Barnich, HOUSTON, TEXAS FAMILY LAW MEDIATOR, ATTORNEY & COUNSELOR AT LAW (Mar. 10, 2009, 10:22 p.m.), http://txfamilylaw4u.blogspot.com/2009/03/johnpaul-barnich.html. 7. Joe Leydon, R.I.P.: John Paul Barnich (1945-2009), THE MOVING PICTURE BLOG (Feb. 4, 2009), http://www.movingpictureblog.com/2009/02/ripjohn-paul-barnich-1945-2009.html. 8. Judge Hartle remained presiding Judge until De-
Houston L aw yers Who Made a Dif ference
J. S. Bracewell
By The Hon. Mark Davidson ost lawyers dream of being an Atticus Finch type of attorney – one who protects the poor and defends those wrongfully accused. Political activity against the self-appointed elite and on behalf of the oppressed is a goal many aspire to. Public service is a way many lawyers seek to improve their communities. There may be no lawyer in Harris County’s history that met these ideals more than J. S. Bracewell. As a young lawyer, he served as City Attorney of the City of Harrisburg, and kept the growing city of Houston from encroaching on his town, at least for a while. His work for the city led to paved streets in the East End. He supplemented his meager salary as a lawyer by teaching school, and influenced generations to come. In the 1920s, he took his involvement in civic involvement to a new level – fighting the Ku Klux Klan. While politically conservative, he deeply believed in helping the poor and having a legal
system that was fair to all. When the Klan decided to try to take over county government and recruited the incumbent District Attorney to run on its slate, he filed for office. He campaigned around Harris County tirelessly, attacking bigotry and prejudice at every stop. He narrowly lost, and earned the hostility of the largely J. S. Bracewell successful elected officials. He would continue to fight the Klan and the public officials it had supported, and was instrumental in its eventual demise. Bracewell served as president of the Houston Bar Association in 1939. While he would go on to be one of the founders of the law firm now known as Bracewell LLP, the trials he would look back on as the ones that he was proudest to have tried were death penalty cases in which he represent-
ed poor African Americans. He was fearless, travelling to small rural courthouses throughout East Texas and taking on powerful District Attorneys in counties which excluded Blacks from juries. He won some and lost some. He always appealed any findings of guilt, and got several reversed. Lawyers who want to make a difference should look at the life of J. S. Bracewell and compare it to their own carefully edited resumes. He founded a quite successful firm while helping the poor. He was a public servant who was never elected to public office. He took on pernicious racism against the establishment, and would persevere to end their influence. In each of these ways, and many others, he made a difference.
The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.
OFF THE RECORD
Charles A. Spain:
Civil Rights and Vexillology By Anietie Akpan
began his incredible journey of exploration, scholarly research he Supreme Court just issued the second worst opinand leadership in vexillology. ion in the Court’s history,” announced a young BayIn 1992, Judge Spain published a comprehensive survey in the lor law student on the floor of his family law class South Texas Law Review of all past and current laws affecting on June 30, 1986, moments after the United States Texas flags and seals, and in 1993, Supreme Court issued he helped draft and pass a compreits historic 5–4 opinion in the Bowhensive revision of those laws. As ers v. Hardwick case, which upheld chair of the Texas State Seal Advithe constitutionality of a Georgia sory Committee, Judge Spain also sodomy law. led a successful effort to adopt ofThat brave law student was ficial standard designs for the state Charles A. Spain from Houston, seal and arms, which included rewho up until that moment had moving the Confederate battle flag spent his adulthood in the closet. from the reverse of the state seal. In his youth, he vowed to be the He was recognized for his work perfect Eagle Scout and eventually with the Texas Historical Combecame a professional Scout execumission’s Texas Award for Historic tive in Dallas until he left his posiJudge Charles Spain and Houston’s former Mayor, Annise Parker, Preservation and commissioned as tion to attend Baylor Law School. are flanked by seals and flags representing our city, state and an Admiral of the Texas Navy. The Bowers decision sparked nation. Judge Spain has served as the Spain’s illustrious history as an LGBT activist, beginning as a president of the North American founding member of the first organized group of lesbian and Vexillological Association (NAVA) gay Baylor and other Waco area college students. After law and is one of only five individuals school, Judge Spain continued to champion for LGBT rights, in the association’s 50-year histoco-founding and chairing the first unitary State Bar LGBT secry to be named a Whitney Smith tion in the nation, overseeing legislative efforts to repeal Texas’ “homosexual conduct” statute, and working at the national Learning about the first national flag Fellow, NAVA’s highest honor. level to change the Boy Scouts of America’s ban on openly of Texas, known as the David G. Bur- Since 1997, he has also served as Flag, spurred Judge Spain’s intergay youth members and adult Scout leaders. He was also ap- net est in flags and seals, and the laws the Secretary General of the International Federation of Vexillopointed as an associate municipal court judge, becoming only that govern them. logical Associations (FIAV), where he has overseen scholarly flag the third openly gay male judge in Texas. His tireless efforts culassociations around the world and helped organize week long Inminated in his receipt of the Judge Norman W. Black Award, the ternational Congresses of Vexillology every other year. State Bar of Texas LGBT Law Section’s highest recognition. Judge Spain states: “I’ve travelled the globe to conferences, beAlthough Judge Spain’s civil rights efforts are impressive, he is coming friends with so many brilliant people. Serving for almost also well known for one of his interesting and unusual hobbies: two decades as the FIAV Secretary General, I’ve put my legal probvexillology, the study of flags. “For me,” shares Spain, “vexillology lem solving skills to work with people from all over. It’s been a combines my interest in history and law.” challenge, and I sure haven’t made any money from it, but it makes As a young lawyer, Judge Spain traipsed his firm’s law library, me smile when I think, ‘A kid from Sharpstown did that.’” perusing seemingly infinite shelves of books. Eventually, he stumbled upon a copy of Gammel’s ten volume The Laws of Texas 1822—1897, where he read about the laws creating the first naAnietie Akpan is a first-year associate at Sinoski & Associates, tional flag of Texas, referred to as the David G. Burnet flag. Thus PLLC. She serves on The Houston Lawyer editorial board. thehoustonlawyer.com
The HBA Judicial Polls Committee By Yvonne Y. Ho and David E. Harrell
The Houston Lawyer
or most voters, the process of obtaining information about judges and judicial candidates for the many different courts in Harris County can be overwhelming. Few individuals have access to the same firsthand information as the attorneys who practice in those courts. Since 1973, the HBA has strived to bridge that informational gap through a number of judicial polls conducted by the HBA Judicial Polls Committee. These polls are not endorsements of any particular judges or candidates, but instead provide a valuable educational service to the public. This fall, the HBA Judicial Polls Committee will disseminate a Judicial Evaluation Questionnaire that asks members to assess, based on specified criteria, the members of the local judiciary who have been on the bench for at least six months. Unlike last year’s Judicial Preference Poll, which simply asked members which candidates they supported in the November election, the Judicial Evaluation Questionnaire is designed
to elicit the input of only those HBA members who have personal, first-hand knowledge of the particular judge. Voting in the Committee-sponsored polls is simple. Since 2014, the polls have
the local judiciary, you can ensure that the results represent the full spectrum of views and experiences of our local bar. And, in doing so, we can all ensure that the polls continue to serve their
been conducted through a secure online system. Members’ email addresses and poll responses are not shared with anyone. As co-chairs of the HBA Judicial Polls Committee, we encourage you to participate in the upcoming Judicial Evaluation Questionnaire and other, future HBA judicial polls. The Committee is dedicated to improving the quality of these polls— but we need your help to achieve that goal. By contributing your knowledge of
longstanding role as an informational resource to the public at large. Results of HBA Judicial Evaluation, Qualification and Preference Polls from 2006-2016 are available on the website, https://www.hba.org/judicial-pollresults/.
Yvonne Ho, a partner at Bracewell LLP, and David E. Harrell, a partner at Locke Lord LLP, are the 2016-2017 co-chairs of the HBA Judicial Polls Committee.
in pro f e s s io n ali s m
Cisselon Nichols Hurd Senior Litigation Counsel, Shell Oil Company
decided to become a lawyer after meeting one during Career Day in 4th grade. From that point on, I looked forward to protecting the rights of others in order to ensure justice for all. In fact, the concluding phrase of the Pledge of Allegiance, â€œwith liberty and justice for all,â€? had always resonated with me. As a young girl growing up in the South during the early 1970â€™s, I was deeply troubled by the disparity between men and women in terms of their societal roles. The role that the Klu Klux Klan remarkably still seemed to play in American society then also bothered me. From my perspective at the time, lawyers appeared to play a critical role in righting these injustices, so I knew it was the profession for me. This
was especially the case once I learned that former Congresswoman Barbara Jordan was a lawyer. Listening to her during the Watergate hearings in 1974, confirmed for me that I could really become a lawyer. It also made clear to me that integrity was the key to becoming a well-respected attorney. Through-out my legal career, this has continued to be my guidepost in the various roles I have held in both the public and private sectors. Like Congresswoman Jordan, I believe that lawyers should be civil towards one another, especially when they are adversarial. I also continue to believe, like her, that lawyers play an important role in preserving both the Constitution and the rights of the people in order to protect our democracy.
Bent Logic: The Texas Supreme Court Gives Further Guidance on Requirements Needed to Order a New Trial By The Hon. Jeff Work
The Houston Lawyer
or one and a half centuries, Texas trial courts enjoyed the unfettered ability to grant new trials regardless of the court’s reasoning. However, over the past decade, the Texas Supreme Court has delineated specific requirements needed to grant a new trial. These requirements received additional guidance with the Court’s recent decision In Re Stacey Bent and Mark Bent, 487 S.W.3d 170 (Tex. 2016). The underlying case involved allegations of breach of contract, among other claims, concerning a USAA insurance policy for the Piney Place Village home owned by Stacey and Mark Bent. In 2008, Bents’ home was damaged by Hurricane Ike, and then seven months later, their home experienced flooding. The Bents contended the house was a total loss. After numerous claims and inspections, with some claims paid, the entire
matter resulted in a lawsuit. During the pendency of litigation, the Bents’ lender foreclosed on the home. Eventually, a jury found USAA did not breach the homeowner’s policy but instead found that USAA made a misrepresentation in violation of chapter 541 of the Insurance Code. The jury awarded $150,000.00 in damages for the home’s diminished value, $250,000.00 for mental anguish and $185,000.00 in attorney fees (only through trial). On May 17, 2013, the trial judge signed an Order granting a new trial on behalf of the Bents stating, among many other things, as cited by the Supreme Court of Texas: 1. The jury’s finding that USAA did not breach the homeowner’s policy was contrary to the great weight and preponderance of the evidence; 2. USAA violated the trial court’s order in limine regarding the Bents’ failure to seek a variance from the relevant Piney Point Village city ordinance; 3. The evidence did not support the jury’s award for the diminished value of the Bents’ home; 4. The jury improperly failed to award appellate attorney’s fees; and 5. The jury’s finding as to mental-anguish damages was not supported by a finding that USAA “knowingly” violated the Insurance Code, an element that both sides failed to argue. The First Court of Appeals eventually and conditionally granted a mandamus request to vacate the order for the new trial and render judgment based on the jury’s findings. The Bents appealed to the Texas Supreme Court. On April 1, 2016, the Texas Supreme Court denied the Bents’ petition for writ of mandamus
with a detailed opinion. In its conclusion, the Court concluded that three of the trial court’s basis for granting a new trial failed to satisfy the requirements set forth in its recent opinions on the subject, In re Columbia Med. Ctr. Of Las Colinas, Subsidiary, L.P., 290 S.W.3d 2014, 213 (Tex. 2009); and In re United Scaffolding, Inc., 377 S.W.3d 685, 688-689 (Tex. 2012). The court concluded the trial court was “muddled” in its logic and, in some instances, the trial court did not give enough detail. The Court insisted, as it had in its previous decisions, that a trial judge is not obligated to regurgitate all the evidence, or lack of evidence, supporting a new trial decision but the trial court should at least give a reasonable and sound explanation as to why the trial court feels it should order a new trial. On the remaining basis, the Texas Supreme Court agreed with the appellate court that the record did not support the trial court’s stated rationale. In supporting the appellate court’s decision, the Court specifically stated the appellate courts must be able to perform a merits based review to determine if the underlying record supports the basis for the new trial order. As an interesting twist, on November 17, 2016, the trial court again granted a new trial with much more detail in its order as to its basis for granting the new trial. Stay tuned for future episodes in this Bent saga. The Hon. Jeff Work is a former Harris County Civil District Court judge and currently practices defense litigation with the Law Offices of Lori Weiss. He is also an associate editor with The Houston Lawyer.
A Claim for Attorney’s Fees in a Breach of Contract Claim Loses Appeal By The Hon. Scott Link
he manner and right to recover attorney’s fees has been the source of much debate and litigation, but Texas federal and appellate courts are narrowly construing the statute, with some inequitable results. Section 38.001 of the Texas Civil Practice and Remedies Code authorizes an award of attorneys’ fees for certain enumerated classes of claims brought by a “person” against an “individual or corporation.” With the passage of Section 38.001, the legislature passed the Code Construction Act (Chapter 311, Government Code), which defines “person” as including “corporations, organizations, government or governmental subdivision or agency, business trust, estate trust, partnerships, association, and any other legal entity.” This list of who may recover attorney’s fees is broad. However, the question becomes: against whom can a person recover attorney’s fees? The new law uses “individual or corporation” instead of “person.” Use of the word “individual” appears to be for the primary reason to
avoid the application of the Code Construction Act’s definition of “person” to governmental entities (i.e., to shield them from liability for attorney’s fees). So beyond governmental entities being excluded, how broad is “individual or corporation?” The definition is looking increasingly narrow. In Fleming & Associates, L.L.P. v. Barton, 425 S.W.3d 560, 574 (Tex. App-Houston [14th District] 2014, pet. denied), the court looked at whether a “partnership” is included in the definition of “individual or corporation,” and thus at risk of having to pay attorney’s fees to the claimant. The Legislature, while it did define person, did not define individual or corporation. Ultimately, the court said that under the doctrine of “expressio unius est exclusion alterious” (the expression of one concept implies the exclusion of another), suggests the legislature did not intend Section 38.001 to apply to partnerships because it did not use any term encompassing partnerships. So the court held that under the plain language of Section 38.001(8), a person may not recover attorney’s fees against a partnership. In Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438 (Tex. App-Houston [14th Dist.] 2016, the issue was whether a limited liability company is a corporation, and is thus subject to paying attorney’s fees under Section 38.001. The court concluded that despite the similarities in definitions and common usage of the terms company and corporation, it is clear that as used in Texas statutes, the legal entities identified by the terms corporation and LLC are distinct entities with some but not all of the same
features. Therefore, the court again held that an LLC is not an “individual or corporation” and not subject to risk of paying Section 38.001 attorney’s fees. Again, in Choice! Power, L.P. v. Feeley, No. 01-15-00821-cv (Tex. App-Houston [1st Dist.], 2016), a Texas court was faced with the issue of how expansive is “individual or corporation.” Feeley argued that “corporation” subsumes multiple kinds of business entities including partnerships and to exclude such legal entities from section 38.001 would lead to absurd results. Partnerships, after all, can sue for attorney’s fees. The Court found that the legislation’s substitution of the word “individual” for “person” did not invoke the “absurdity safety valve,” and that Section 38.001 does not permit recovery against a limited partnership. Section 38.001, in effect, now subjects corporations to liabilities that all other legal entities do not face. Further, it protects these other legal entities from paying attorney’s fees, while allowing them to receive an award of attorney’s fees. Many would say this is an inequitable result. The Texas Legislature should address this inequity by replacing “individual” with “person,” with a caveat that nothing herein would authorize the recovery of attorney‘s fees from a governmental entity. The Hon. Scott Link is a litigator and mediator, former State District Judge, and is board certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization. He writes and lectures in the areas of attorney’s fees and fiduciary duty, and he is a member of The Houston Lawyer editorial board.
Online Law Practice Strategies By Jabez LeBret and Mark Homer Legal Technology Press, 2015 Reviewed by Raymond L. Panneton
The Houston Lawyer
t has been said many times in this publication and others that it is impossible for law firms to ignore their online presence. This axiom remains true; however, for solos and small firms, not only must they tend to their online presence, they must actively engage in online and social media marketing. All too often, as busy attorneys, we tend to throw money at a problem to solve it. Nowhere is this truer than online and digital marketing. Gone are the days of passive advertising through word-ofmouth and the Yellow Pages, and here are the days of social media and a consumption culture. Therefore, as practitioners, we must not only throw money at the solution, we must first be able to correctly identify what the problem is. Jabez LeBet and Mark Homer in their book Online Law Practice Strategies (2015 Edition) provide a clear, approachable education to online marketing strategies. The duo seek to educate the legal practitioner on the components of online marketing so that the practitioner can better self-identify their deficiencies 38
so they know how to better spend their valuable marketing dollars. In addition to providing an education, LeBet and Homer provide easy, concrete suggestions on ways in which you can improve each area of your online marketing. These simple solutions are useful for novices and experienced online marketers alike. The utility of the information and suggestions provided in Online Law Practice Strategies is that the information is current and up-to-date. Current information is important in the world of online marketing as many big search engines —who control your ranking in search results—are constantly changing their algorithm; therefore, if your firm is not staying up-to-date on the recent changes in this area, your website will likely suffer. It is no secret that the legal profession has solidly moved into the 21st Century in becoming more online driven. As a part of this transition, firms of all sizes are forced to focus time and significant resources in developing, maintaining, and updating their online presence. For those without an unlimited marketing budget, it is important to know and understand the key components to online marketing. LeBret and Homer’s Online Law Practice Strategies (2015 Edition) is a valuable resource for novices and marketing experts alike on the subtle art of SEO and online marketing. After reading this book, the practitioner will have knowledge and concrete tasks in order to be more productive and profitable via their online marketing. Raymond L. Panneton is a member
of the Houston Lawyer editorial board and practices with Hendershot, Cannon, Martin & Hisey, PC in Houston. He can be reached at firstname.lastname@example.org.
Capital Cat and Watch Dog: Welcome Rabblerousing in Washington, D.C. Judge Janice Law Wild Horse Press, 2015, 2016 Reviewed by Kimberly A. Chojnacki
he Hon. Janice Law’s Capital Cat and Watch Dog Unite Lady Freedoms and Capital Cat and Watch Dog Outwit the U.S. Supreme Court offer a whimsical, yet reverent and respectful, view of the goings on in our nation’s capital. With Capital Cat, a “mature” cat who roams the Senate, and Watch Dog, a police dog who guards the House, at the helm, Washington, DC, Congress, and the Supreme Court become accessible and entertaining to children. Capital Cat and Watch Dog Unite Lady Freedoms tells the story of Capital Cat and Watch Dog’s campaign to unite the two Lady Freedom statues. Cat and Dog rally the various statues throughout the Capitol Complex, which come to life with the help of “night magic,” to hold a joint session on the matter. After hearing the plaster Lady Freedom’s plea to secure a spot under the skylight in the
new Capitol Visitor Center to be able to see her “sister,” the bronze Lady Freedom atop the Capitol, the statues come to her aid. Law weaves a lesson in government throughout the story, including the bicameral nature of Congress, how the House and Senate compromise, how representatives and senators are elected, and the nature of a congressperson’s work. The educational aspects easily flow with the story and may even school some adult readers. Capital Cat and Watch Dog Outwit the U.S. Supreme Court is a sequel to Law’s first story. It chronicles Cat and Dog teaming up with Supreme Cat Nino,
who bears a striking resemblance to the late Justice Antonin Scalia, to prevent the “real life” Congress from moving the state statues from the Capitol Complex to one of the Smithsonians. Cat, Dog, and Supreme Cat work the “night magic” on the Justice John Marshall statue at the Supreme Court, who helps the trio get the case before the Supreme Court as a show of his gratitude. As with her first story, Law effortlessly weaves in how the Supreme Court chooses its cases, how votes are made on opinions, and tidbits of history about the more well-known justices in history.
Throughout each story are captivating illustrations and charming rhymes of dialogue. For the older children, Law also includes lists of words to look up in the dictionary and famous figures to research. The Hon. Janice Law of Houston is the award-winning author of seven books. She has appeared as panelist, podium speaker or teacher at prestigious national book festivals and on CSpan2/BOOKTV. A retired Texas criminal court judge, she is the 2011 founder of D.C.-based American Women Writers National Museum, a nonprofit. Kimberly A. Chojnacki is an associate of Zeidman Spencer Beverly & Holt, LLP and practices commercial litigation. She is a member of The Houston Lawyer editorial board.
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