THL_JulAug23

The Recent Legislative Session Establishes a New Probate Court How Two Law Firms Heard and Heeded a Call to Action Retained Control Over Independent Contractors Still Raising Important Questions Diana Gomez Sworn in as First Latina President nch of the Houston Bar Association

lawyer

THE HOUSTON

inside...

Volume 62 – Number 1

July/August 2023

Diana Gomez 2023-2024 President Houston Bar Association

contents July/August 2023

Volume 62 Number 1

FEATURES

12

16

Recent Legislative Session 10 The Establishes a New Probate Court

By The Honorable Jerry Simoneaux, Jr.

Deep Dive Into the CROWN Act: 12 AStopping Hair Discrimination One Strand at a Time

By Megan Mitchell

End of Texas’ Tampon Tax: 16 The How a Group of Houston Lawyers Helped Make It Happen

By Laura Shoemaker McGonagill

Legal Odyssey: A Houston 20 Okinawa Attorney’s Reflection on Serving,

20

26

50 Years Later

By David Nelson

Two Law Firms Heard and 24 How Heeded a Call to Action

By Andrew Pearce and Krisina Zuñiga

Control Over Independent 26 Retained Contractors Still Raising Important Questions

By Parth S. Gejji

With HBA President 30 AnDianaInterview Gomez Gomez Sworn in as First 32 Diana Latina President of the Houston

30

32

Bar Association

33 50-Year Lawyers 34 President’s Awards Bar Association 36 Houston Recognizes Law Firm, Attorneys

The Houston Lawyer

for Excellence in DEI

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, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. 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/QuantumSUR, Inc., 2023. All rights reserved.

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contents July/August 2023

Volume 62 Number 1

departments Message 6 President’s Serving the Legal Profession,

38

39

Houston Community, and Young Minds in the Year Ahead

By Diana Gomez

the Editor 8 From Honoring a Legacy of Enrichment

and Engagement

By Liz Malpass

Giving Back 38 Lawyers Cristo Rey: Celebrating 15 Years

of Success as a Pipeline Between Students and Law Firms

By Maggie Martin

40

41

In The Family 39 Law The Hagans Family THE RECORD 40 OFF Love Languages: Thomas and

Celia Sekula

By Nikki Morris Profile in professionalism 41 AMichael F. Barry President and Dean, South Texas College of Law Houston

Spotlight 42 committee A Quarter Century and Counting:

Celebrating the 25-Year Partnership Between the HBA and Houston Habitat for Humanity

By Scott Van Meter

42

44

Section Spotlight 44 Appellate Practice Section:

Connecting the Bench, Bar, and Community

By Jillian Schumacher

reviews 45 Media The Words That Made Us: America’s

Constitutional Conversation, 1760–1840 Reviewed by Braden Riley

Mere Natural Law: Originalism and the Anchoring Truths of the Constitution Reviewed by Trevor Kehrer

trends 46 legal “Clear and Unmistakable”: The Houston Lawyer

The Supreme Court of Texas Joins Other Courts in Honoring the Incorporation of AAA Rules

By Lane Morrison

48 Litigation MarketPlace 4 July/August 2023

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D

edicated, aspiring lawyers bring their passion for justice, excellence, and service.

South Texas College of Law Houston provides them awardwinning programs, real-world experiences that make them practice ready, and a supportive community.

Because of this exceptional legal education, an engaged network of more than 16,000 purposedriven alumni now lead and serve with distinction — across Texas and the nation.

WHERE PASSION IGNITES PURPOSE

president’s message

By Diana Gomez Chamberlain Hrdlicka

Serving the Legal Profession, Houston Community, and Young Minds in the Year Ahead

The Houston Lawyer

I

am honored to serve as the first Latina president of the Houston Bar Association—and the sixth woman—in the organization’s 153-year history. I appreciate the historic nature of my presidency and thank all of the individuals who paved the way for me, especially HBA past presidents Roland Garcia, Benny Agosto, Jr., Lynne Liberato, Amy Dunn Taylor, Denise Scofield, Laura Gibson, and Jennifer A. Halsey. Thank you also to my good friends and HBA past presidents Travis J. Sales, Randy O. Sorrels, Neil D. Kelly, Warren W. Harris, Alistair B. Dawson, and Bill Kroger. Thank you for your service to the bar and for your friendship and guidance.

As lawyers, we have the privilege to serve our community, our profession, and young minds. To that end, this year we will work to bring the legal community together through initiatives focused on community service, attorney engagement, and pipeline programs.

First, the HBA County Law Library Committee will work to finalize the implementation of our LAWPods (“LAW” stands for “Legal Access Workspace”) to bring law library services beyond downtown to public libraries throughout Harris County. Our goal is to provide residents with self-assistance tools that will help narrow the justice gap. The HBA Gender Fairness Committee will also work closely with Harris County stakeholders to help finance and plan the installation of the first lactation pod in the Harris County court complex area. Our goal is to provide nursing mothers with access to a comfortable space, which we hope will improve access to justice. The HBA also plans to strengthen our participation in naturalization ceremonies by working with Chief U.S. District Judge Randy Crane, U.S. District Judge Keith P. Ellison, U.S. District Judge Lee H. Rosenthal, and other members in the federal judiciary.

As part of our attorney engagement strategy, the HBA will host the first-ever multi-practice Bench Bar Conference, bringing together civil, criminal, state, federal and other practice areas for breakout discussions and collaboration among Houston’s legal community. Immediately following the conference, the HBA will host its inaugural “Bites and Beverages for the Bar” to foster camaraderie among Houston lawyers while sampling cuisines from 6 July/August 2023

thehoustonlawyer.com

around the world. The HBA will also partner with the Houston Bar Association Auxiliary (HBAA) to prepare and stock Attorney Ready Rooms in Harris County courthouses, providing attorneys an environment to engage with each other outside the courtroom.

Finally, we look to our future to ensure our legal profession attracts diverse, eager young minds. My third initiative as HBA president is to strengthen pipeline programs. This includes efforts spearheaded by the HBA Military & Veterans Committee to engage with veterans in Houston-area law schools through a new effort, the Law School Veterans Program Initiative. I appreciate the service of my father, Juan Jose Pérez, a proud U.S. Air Force veteran, and I hope the Law School Veterans Program Initiative will help those who have served our country.

The HBA Diversity, Equity, and Inclusion Committee will work to reinvigorate and formalize the HBA Ambassadors Program with a focus on our ancillary bar associations, including our diverse bars, such as the Hispanic Bar Association of Houston (HisBA), the Mexican American Bar Association of Houston (MABAH), the Houston Lawyers Association (HLA), the Asian American Bar Association (AABA), the South Asian Bar Association of Houston (SABA Houston), and many others. Houston is the most diverse city in the country and the HBA intends to continue our commitment to diversity, equity, and inclusion in the bar. Finally, the HBA will also promote employment opportunities at Houston law firms for underserved high school students through the HBA’s Communities in Schools (CIS) Committee and the Cristo Rey Jesuit College Preparatory School of Houston.

This year, The Houston Lawyer will also include two special features in every issue. “Law in the Family” will highlight HBA members who share a career in law with family, and “Lawyers Giving Back” will highlight community organizations who, in addition to HBA committees, offer yet more avenues for lawyers and firms to give back through service.

I would like to thank my husband, Judge Michael Gomez of the 129th Civil District Court, my firm Chamberlain Hrdlicka, and everyone who will join us at the HBA as we pursue this important work in the year ahead.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

Diana Gomez

Collin Cox

David Harrell

Daniella Landers

Kaylan Dunn

Christopher V. Popov

Second Vice President

Greg Ulmer

DIRECTORS (2023-2025) Carter Dugan Jeff Oldham

Greg Moore Colin Pogge

DIRECTORS (2022-2024) Keri Brown Samantha Torres

Robert Painter

DIRECTORS (2023-2024) Seepan V. Parseghian

editorial staff Editor in Chief

Liz Malpass Associate Editors

Anna M. Archer Nikki Morris Andrew Pearce

Sydney Huber Bateman Lane Morrison Braden Riley

Editorial Board

Anietie Akpan Nicholas Beekhuizen Hon. Kyle Carter Teresa Hudson Harrison Long Dave Louie Raymond Panneton Hon. Josefina Rendón Kyle Steingreaber Mark Yablon

Jaclyn Barbosa Natasha Breaux Dasha K. Hodge Kristen Lee David T. Lopez Eli Medina Ciara Perritano Jennifer Smith Rachael Thompson

Managing Editor

Maggie Martin

HBA office staff Executive Director.................... Mindy G. Davidson Receptionist and Membership Assistant............... Fabiola Garcia Controller ............................... Sarah Kole Director, Marketing and Communications ..................... Maggie Martin Communications Specialist........ Briana Ramirez Director, Education and Sections Liaison....................... Ashley G. Steininger Education Coordinator ................. Alli Hessel Director, Projects and Events...... Bonnie Simmons Projects and Events Assistant..... Reagan Crittenden Director, Membership and Technology Services................. Ron Riojas

Advertising sales Design & production QUANTUM/SUR

10306 Olympia Dr., Houston, TX 77042 281.955.2449 • www.quantumsur.com Publisher

Leonel E. Mejía Production Manager

Marta M. Mejía

Advertising

Mary Chavoustie

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July/August 2023

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from the editor

By Liz Malpass Baker Botts L.L.P.

Associate Editors

Anna M. Archer U.S. District Court

Sydney Huber Bateman Horne Rota Moos

Nikki Morris BakerHostetler

Lane Morrison Bush Seyferth

The Houston Lawyer

Andrew Pearce BoyarMiller

Braden Riley Cozen O’Connor

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Honoring a Legacy of Enrichment and Engagement

T

his year is a particularly special one for the magazine. In the fall, we will celebrate the 60th anniversary of The Houston Lawyer. Originally printed as a small, 26-page pamphlet for attendees of the Harvest Celebration, The Houston Lawyer has grown into the robust publication that you now hold in your hands.

This magazine, along with its accompanying podcast, Behind the Lines, has undoubtedly enriched Houston’s legal community. With six issues and companion podcast episodes published each bar year, the magazine offers a way for HBA members to come together in a civil forum and share our knowledge, our experience, and our passion with one another. Through these stories, we enrich ourselves, our practice, and our profession.

In my first year of practice, HBA Past President Bill Kroger, who has been a great mentor to me and many other lawyers, suggested that I join The Houston Lawyer because I enjoyed writing and editing. I found myself in a group of kind, intelligent, and engaged attorneys who dedicated their time to enriching our legal community. Now, as I step into the role of editor in chief for the 2023–2024 bar year, I hope to honor the principles these attorneys exemplify by highlighting those lawyers who have taken a larger perspective on the practice of law and made the extra effort to contribute to our community.

I am honored to be the editor in chief of The Houston Lawyer. I am especially grateful to be following in the footsteps of last year’s editor in chief, Brooksie Bonvillain Boutet, whose dedication to excellence shone through each edition of the magazine and provided a guiding light for the last bar year.

I am also extremely grateful to be working alongside this year’s slate of hardworking associate editors: Andrew Pearce – Articles; Nikki Morris – Legal Trends; Lane Morrison – Committee and Section Spotlight; Braden Riley – Media Reviews; Sydney Huber Bateman – Off the Record; and Anna M. Archer – former editor in chief in her second year as the Behind the Lines podcast thehoustonlawyer.com

host. This magazine is only made possible through the efforts of our many other dedicated editorial members, including Anietie Akpan, another former editor in chief who continues to enthusiastically contribute her time to this publication. I am also deeply grateful to our managing editor, Maggie Martin, whose detailed attention, sound guidance, and feats of organization bring this magazine to print.

This year, HBA President Diana Gomez becomes the first Latina to serve as HBA president in the bar’s 153-year history. Her goals for this term—promoting community service, fostering attorney engagement, and strengthening pipeline programs—will help direct the themes of this year’s magazine. They are, in many ways, already intrinsic to this publication’s spirit. Those who have dedicated their time to authoring and editing this magazine have done so without the expectation of renumeration; they have contributed because they understand that the best way to enrich ourselves, and our practices, is through our service to others.

In this issue, we cover many examples of the dedication and contribution that makes our community—and world—a better place. The Honorable Judge Jerry Simoneaux, Jr. describes his effective endeavor to create a probate court designed to offer Houstonians more open access to the courts. Laura Shoemaker McGonagill recounts her team’s successful efforts to eliminate the state sales tax on feminine hygiene products. Andrew Pearce writes about two firm-led programs that provide pro bono legal services to minority-owned businesses. Parth S. Gejji considers the questions left open by a recent court of appeals decision concerning retained control of independent contractors. David Nelson describes his service as a Marine Corps judge advocate in Okinawa, Japan, during the Vietnam War. And Megan Mitchell writes about the legislative changes barring hair discrimination to further racial equality in our workplaces.

Thank you to our guest editors, Anietie Akpan and Lane Morrison, for your contributions to this issue.

Thank you for reading The Houston Lawyer.

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July/August 2023

9

By The Honorable Jerry Simoneaux, Jr.

The Recent Legislative Session Establishes a New Probate Court

C

hanges are coming to the protion. From 1995 to 2018, case filings per bate court systems in Texas, court rose steadily from 1,200 to 4,500.4 and Harris County is benefitHowever, the courts experienced an uning from these developments. usual spike from 2019 through 2022 In a historic move, the Texas when cases per court jumped to more Legislature created five new statutory than 7,600. In those four short years, probate courts around the the average hearings per state, including the first new year climbed sharply from probate court in Harris Coun2,500 in 2019 to more ty in more than 35 years. The The increased than 3,700 in 2022, and increased need for probate they are on track to reach need for courts is a direct result of a 4,000 hearings per year in surge in population, includprobate courts 2023. The largest increase ing a rapid rise in our aging is a direct result has been in mental health population. Adding these new commitment filings, which of a surge in skyrocketed from just uncourts will help ease the population, der 6,000 per year in 2002 strain by providing greater capacity to serve the public including a rapid to over 17,000 in 2022, and more efficiently. we project over 19,000 casrise in our aging es in 2023.5 The new Harris County population.” The Harris County courts court was a long time coming.

Harris County Probate Courts were proactive in adopting are the busiest in the state, according to a technologies to address the growing dereport by the Office of Court Administramand. Early in 2019, the newly elected tion.1 Since the creation of Probate Court Harris County probate judges worked together to alleviate the workload and No. 4 in 1985, the population of Harris were successful in many ways. By May County has increased from 2.75 million2 3 2019, the probate courts moved from a to an estimated 4.92 million in 2023.

100% paper-based system to a fully digiWhile the population per court nearly tal court, streamlining the courts’ case doubled from 687,000 to 1.23 million management system. The probate courts in those 37 years, the staff increase per were early leaders of remote proceedings court only increased by two, from about during COVID, and by October of 2020, nine to 11 members. One of those new Harris County Probate Courts were holdstaff positions was the addition of an asing their first jury trials with hybrid, sociate judge created in 1999. remote, and in-person appearances. In As expected, the workload of the four 2021, the probate courts invested just courts increased along with the popula-

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under $350,000 in new technology using funding from a special account set up by the Legislature for court improvements.

Today, the Harris County Probate Courts are among the most technologically advanced trial courts in the state, and the new technology has further improved efficiency and reduced costs for parties and their attorneys.

But the changes are merely a bandaid for an issue that is compounding.

While working on new technology, the judges continued their efforts to create a new Probate Court No. 5 as a longterm solution. We were overjoyed when we learned this year that Harris County Commissioners Court unanimously accepted our proposed resolution to create a new probate court, and Senator Joan Huffman of Houston sponsored a House floor amendment to HB 3474 by Representative Jeff Leach to add language creating our new court. The bill was signed into law by Governor Abbott on June 13, 2023, and it will go into effect on September 1. Harris County Commissioners will have the authority to appoint the new Probate Court No. 5 judge, who will then be on the November 2024 ballot for a term of four years.

The Honorable Jerry Simoneaux, Jr. is the presiding judge of Harris County Probate Court No. 1, a servicefirst, technology-forward court ensuring swift and accessible justice for all. Judge Simoneaux also serves as the assistant state presiding judge of the Texas Statutory Probate Courts.

Endnotes

1. STATUTORY PROBATE COURTS, OFFICE OF COURT ADMINISTRATION (2023), available at file:///C:/Users/Owner/ Downloads/Probate%20Comparisons%20(2).pdf.

2. Population Estimates of Texas Counties, 1985-89, TEXAS STATE LIBRARY AND ARCHIVES COMM., https://www. tsl.texas.gov/ref/abouttx/popcnty85-89.html, last visited July 23, 2023.

3. https://worldpopulationreview.com/us-counties/tx/harriscounty-population, last visited July 23, 2023.

4. Case statistics for Harris County Probate Court No. 1. The other courts have nearly identical numbers.

5. Request for Court Action, Harris Cnty. Comm’r’s Court (Feb. 21, 2023) (on file with author).

Local Solutions. Global Reach.

By Megan Mitchell

A Deep Dive Into the CROWN Act:

Stopping Hair Discrimination One Strand at a Time

W

hile most eighth graders are relishing their last year of middle school and preparing for high school, J.J.1 spent part of her eighth grade year writing to the Texas Legislature about why they should support the Texas CROWN Act. J.J. expressed a desire to “wear an Afro as this is what makes me feel most like myself. I do not want to be treated differently because of the way I wear my hair or when I get it braided and it goes down to my shoulders.

[M]y hair is a part of me. It’s a part of my culture. I love my fro.”2

I. Background of the CROWN Act J.J. can rest easier knowing House Bill 567, 3 also known as Creating a Respectful and Open World for Natural Hair Act (“CROWN Act”), will take effect on September 1, 2023.4 Garland State Representative Rhetta A. Bowers authored the bill, which was sponsored by Houston State Senator Borris L. Miles, and introduced during the legislative session in 2021. The Texas CROWN Act prohibits discrimination in student dress or grooming policy and discrimination based on hair texture or protective style, by an institution of higher learning or an employer.5 How did we get to a point where Representative Bowers and Senator Miles could guide the bill across the finish line? The results are the culmination of several years of advocacy, followed by the creation of the CROWN Coalition, which formalized an approach to pursue policy and civil rights endeavors.

The CROWN Coalition, formed around 2018, is a national alliance of organizations dedicated to the advancement of anti-discrimination legislation across the United States.6 Advocates Adjoa B. Asamoah, Orlena Nwokah Blanchard, Esi Eggleston Bracey, and Kelli Richardson Lawson co-created the organization.7 In its early days, Lawson organized the CROWN Coalition by assembling a group of four Black and Brown women leaders. “I reached out to a law firm run by a brother here in D.C. He brought in

three Black women to write the guidance memorandum, which ultimately became the CROWN Act,” said Lawson, founder and CEO of JOY Collective.8 For the first year of this work on the CROWN Act movement, Blanchard wrote the majority of the communication that went out herself. “Language matters. Words matter. It has to be crafted and narrated from a lived experience,” she explained.9 “You cannot have a young, white male brand manager write a social media post or tell a story of what it is to be a Black woman with natural hair.”

Bracey, then-COO and executive vice president of beauty and personal care at Unilever, North America, became a corporate partner of the CROWN Coalition after joining Dove and Unilever in 2018.

“I thought it was really critical that we invest in the Black community and [explore] the areas of tension that have our beauty excluded,” Bracey said. “At Dove, we did this project called What Beauty Looks Like, and it came back to our hair.

We talked to all age groups of women, and it was proved back to childhood— feeling of [our] hair not being accepted.”

As president, Unilever USA, CEO North America – Personal Care, Bracey continues her commitment to the CROWN Act, stating: “We’re not going to stop until race-based hair discrimination is eradicated nationwide. To do that [requires] a combination of federal legislation and state-based and municipal-based legislation. There are twenty million Americans that now have protection from hair discrimination. There are still many Americans who don’t.”10 Although the CROWN Coalition cocreators are regularly listed as initiating the movement to eradicate hair care discrimination, the co-creators of the CROWN Coalition acknowledge they are not the first to do the work. “We didn’t wake up one day and say that we are the authors of the movement to normalize Black hair,” said Blanchard.11 People in the hair industry, legislators like the Congressional Black Caucus, and so many others have supported this move-

ment for years. The CROWN Coalition furthers and formalizes the mission by pursuing policy and civil rights accountability through legislation.

Asamoah, a trailblazer touted with developing the legislative strategy for—and leading the groundbreaking CROWN Act movement on behalf of—the CROWN Coalition has worked to see the CROWN Act passed on both a federal and state level.12 Although the work on the federal level has yet to come to fruition, CROWN Act legislation has been enacted in Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, and Washington.13 With Texas Governor Greg Abbott signing the CROWN Act into law on May 27, 2023, Texas was added to the list of 22 states, plus the U.S. Virgin Islands, who prohibit race-based hair discrimination, joining more than 40 local governments who

have passed versions of the CROWN Act since 2019.

II. Explanation of Hair Bias There are many forms of hair bias that the CROWN Act in various states seeks to prevent. For example, an applicant who is hired for a job while wearing straightened hair, only to have that job offer rescinded upon wearing natural hair to work, would be a candidate for protection. The CROWN Act can also protect students who are required to cut their hair to participate in school in a traditional classroom, limiting those who do not conform with the discriminatory hair policy to alternative settings, such as inschool suspension. The discrimination subject to the CROWN Act may not be as blatant as being directly told “you will be fired unless you change your hair,” but often shows itself after a previously unmentioned policy shows up in written or verbal form, requiring the student or employee to conform to new hair regula-

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July/August 2023

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tion that serves no other purpose besides discrimination.

Hair bias regarding natural hair discrimination has been occurring for centuries. In the 1806 case of Hudgins v.

Wrights, three women argued before the Virginia Supreme Court that they were wrongfully enslaved because they were descendants of an Indigenous woman.14 Despite conceding that these three women were likely Indigenous descendants— thereby, deserving a presumption of freedom—the Hudgins Court supported the still persisting belief that despite one’s skin complexion, the women’s “woolly head of hair... was so strong an ingredient in the African constitution,” it marked a person as an African descendant and presumptively enslaveable.15 Alternatively, a person who had white skin and hair texture “not woolly or inclining thereto,” among other physical features, would be presumed white, Indigenous, and thus free.16 Consequently, a legal presumption of African ancestry and slave status would be imputed upon a person with a hair texture that either appeared “woolly” or had the propensity to become “woolly” despite a fair or white skin complexion (as was the case with the Wright women).17 Like individuals with a darker skin complexion, legal and social institutions imputed a badge of perpetual servitude upon individuals who had a tighter curl pattern or “woolly” hair texture because they were classified as African or African descendants.18 Two hundred years later, plaintiffs are still fighting against discrimination based on hair texture or hairstyle.

In a now-dismissed 2021 California state court lawsuit, a Black man, Jeffrey Thornton, filed one of the first lawsuits testing the legality of the CROWN Act by alleging that his former employer, Encore Group, LLC, violated the Act by denying him a job because he refused to cut his locs.19 According to the lawsuit, when Thornton interviewed for the technical supervisor position, a hiring manager informed him he would have to conform to appearance policies if he wanted the 14 July/August 2023

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job.20 That meant cutting his hair so it was off the ears, eyes, and shoulders (the company would not let him simply tie his hair back). In response to the lawsuit, Encore Group issued a statement saying there was a “misunderstanding,” and an employment offer was still on the table.21 In pending cases, it will be interesting to see the CROWN Act’s role in hair bias litigation. Two cases of interest that recently took a plot twist are Arnold v.

Barbers Hill Indep. Sch. Dist., filed in Texas, and Equal Emp. Opportunity Comm’n v.

American Screening LLC, filed in Louisiana. In the Texas case, a lawsuit was filed against Barbers Hill Independent School District (“BHISD”), its Board of Trustees, and additional individual defendants challenging its discriminatory hair policy.22 The lawsuit stems from plaintiffs Everett Arnold and K.B. (a minor) being informed by BHISD they must either cut their natural locs or no longer participate in regular classes and school activities, including Arnold’s graduation ceremony.

Granting K.B.’s motion for a preliminary injunction, the district court found evidence in the record of selective enforcement, procedural irregularities, and increasingly restrictive amendments, coupled with the lack of a persuasive justification for the hair length policy, which showed a substantial likelihood that K.B. would satisfy the Supreme Court’s Arlington Heights racial discrimination analysis and would prevail on his cause of action under 42 U.S.C. § 1983 for race discrimination in violation of the Equal Protection Clause.23 The case remains pending.24 In the Louisiana case, the U.S. Equal Employment Opportunity Commission’s (“EEOC”) New Orleans office sued American Screening LLC for violating the civil rights of an African American employee when it fired her for wearing her hair naturally. Although the employee initially wore a wig with straight hair, when she began to wear her natural hair, her employer stated she “came in with beautiful hair” but now “looks like she rolls out of bed.”25 Furthermore, the owner asked if the employee was going to “fix” her hair

and instructed managers to tell the employee that her hair was unacceptable.26 The next week, the owner instructed managers to terminate the employee. The EEOC is seeking back pay and compensation for emotional suffering for the employee.27 This case was also set to go to trial in September 2023, but the company filed a suggestion of bankruptcy in April 2023.28 III. How Hair Bias Plays Into Eurocentric Expectations of “Corporate” Appearance The CROWN Act’s expected effect on cases involving employees and students provides for thought-provoking discussions, partly because the CROWN Act adds clarity to a previously ambiguous policy of “professional hair” worn in a “neatly kept manner.” One of the biggest problems with vague policies is who determines what is acceptable within the bounds of the policy. As Angela Onwuachi-Willig, dean of the Boston University School of Law, put it, people of color are essentially having to straighten their hair “to satisfy a physical standard of professionalism that has been defined by white appearance norms.”29 This hair bias playing into Eurocentric expectations of “corporate” appearance is dangerous because of the impact that hair discrimination has on people of color, and particularly Black girls and women.

A study by Michigan State University found that African American women face the highest instances of hair discrimination, and they are more likely to be sent home from the workplace because of their hair.30 The study also determined that 80% of African American women believe they need to switch their hairstyle to align with more conservative standards to fit in at work. In a separate study, researchers at Duke University found that participants viewed Black hairstyles like afros, twists, or braids as less professional. The study determined that Black women with natural hairstyles are less likely to land job interviews than white women or Black women with straightened hair. This disparate impact is also

seen in children. Black students are more likely to be suspended for discretionary reasons, such as dress code or long hair violations, neither of which are predictive of student misconduct, according to researchers at Princeton University.31 These punishments place students on a trajectory towards poor academic performance, leading to higher dropout rates, gang involvement, and getting arrested before the age of 21.32 Furthermore, hair discrimination is rooted in systemic racism and erodes trust between students and the education system supposed to care for them. Discriminating against Black hair reinforces the othering of Black children and is another way that Black identity is policed.33 Protective styles, locs, headwraps, and durags are not just vital to the protection of Black hair, they are just as J.J. said, “a part of my culture” and identity.34 Megan Mitchell is a third-year associate at Shook, Hardy & Bacon. She helps companies protect their innovations and ultimately their brands and their profits in Shook’s intellectual property and products liability groups. Megan is a former law clerk to the Honorable George C. Hanks Jr.

10. Liz Flora, The Groundbreakers: The Executives Behind Key Changes at Influential Companies, GLOSSY (Nov. 9, 2022), https://www.glossy.co/beauty/esi-egglestonbracey-unilever-glossy-50/.

11. Khalea Underwood, The CROWN Coalition Meet the Queens Dismantling Hair Discrimination, EBONY (2021), https://www.ebony.com/magazine/crowncoalition/.

12. Adjoa B. Asamoah, Meet Adjoa, https://www.adjoabasamoah.com/meet-adjoa (last visited July 18, 2023).

13. The CROWN Act, LEGAL DEFENSE FUND, https:// www.naacpldf.org/crown-act/ (last visited July 18, 2023).

14. Hudgins v. Wrights, 11 Va. (1 Hen. & M.) 134, 134–35 (1806).

15. Id. at 139.

16. Id. at 140.

17. Id. 18. D. Wendy Greene, #FREETHEHAIR: How Black Hair is Transforming State and Local Civil Rights Legislation, 22 NEV. L.J. 1117, 1118 (June 1, 2022).

19. Nicquel Terry Ellis & Cheri Mossburg, A Black Job Applicant is Suing Over Hair Discrimination, but the Company Says it was a Misunderstanding, CNN (Dec. 4, 2021), https://www.cnn.com/2021/12/04/us/blackjob-applicant-hair-discrimination-lawsuit/index. html.

20. Id. 21. Id. 22. EDUCATION Case: Arnold Family v. Barbers Hill Independent School District, LEGAL DEFENSE FUND, https://www.naacpldf.org/case-issue/arnold-familyv-barbers-hill-independent-school-district/ (last visited July 18, 2023).

23. Id. at 528. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266–68(1977) (outlining the discriminatory intent test (Arlington Heights test), which utilizes a mosaic of different types of circumstantial, statistical, and anecdotal fac-

tors, that when taken collectively, could demonstrate that an official action or decision was intentionally discriminatory against a party’s race, color or national origin. These factors include, but are not limited to, the historical background of the decision on comparable matters, the sequence of events leading up to the decision, and departures from normal procedures or substantive conclusions.)

24. Id. at Dkt. 308.

25. Sanestina Hunter & Jacque Porter, Federal Agency Sues Louisiana Company Over Hair Discrimination, WNCT (Oct 28, 2021), https://www.wnct.com/news/ national/federal-agency-sues-louisiana-companyover-hair-discrimination/.

26. Id. 27. Id. 28. Equal Employment Opportunity Commission v. American Screening LLC (W.D. La. 2022) (No. 5:22-cv-1673) at Dkt. 45.

29. Chris O’Malley, Hair at Root of Anti-Discrimination Laws Sweeping Country, ALM|LAW.COM (Feb. 2, 2023), https://www.law.com/corpcounsel/2023/02/02/hair-at-root-of-anti-discriminationlaws-sweeping-country/?slreturn=20230617233625.

30. Natural Hair Discrimination Frequently Asked Questions, LEGAL DEFENSE FUND, https://www.naacpldf.org/natural-hair-discrimination/ (last visited July 18, 2023).

31. Id. 32. See Emily Peterson, Racial Inequality in Public School Discipline for Black Students in the United States, BALLARD BRIEF, https://ballardbrief.byu.edu/issuebriefs/racial-inequality-in-public-school-disciplinefor-black-students-in-the-united-states (last visited July 18, 2023).

33. Id. 34. H.R. Compilation of Pub. Comments Submitted to the Comm. on State Affairs For H.B. 567 (statement of J.J., eighth grader from Round Rock, TX).

Endnotes 1. Name of minor redacted.

2. Relating to discrimination on the basis of hair texture or protective hairstyle associated with race H.R. 567, 88(R) Leg. (2023).

3. H.R. Compilation of Pub. Comments Submitted to the Comm. on State Affairs for H.B. 567 (statement of J.J., eighth grader from Round Rock, TX).

4. Id. 5. Relating to discrimination on the basis of hair texture or protective hairstyle associated with race H.R. 567, 88(R) Leg. (2023) (Protective hairstyles include braids, locs, and twists).

6. The CROWN Coalition Is Ending Discrimination Against Black Hair, DOVE|CROWN COALITION, https:// w w w.thecrow nact.com /about#:~:text=The%20 CROWN%20Coalition%20is%20an,legislation%20 across%20the%20United%20States (last visited July 17, 2023).

7. Khalea Underwood, The CROWN Coalition Meet the Queens Dismantling Hair Discrimination, EBONY (2021), https://www.ebony.com/magazine/crowncoalition/.

8. See id. (JOY Collective is a marketing and PR firm that specializes in brand building).

9. Id.

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July/August 2023

15

By Laura Shoemaker McGonagill

The End of Texas’ Tampon Tax:

How a Group of Houston Lawyers Helped Make It Happen

B

eginning September 1, 2023, feminine hygiene products will be exempt from sales tax in Texas for the first time due to the recent passing of SB 379, a bill which eliminates the sales tax on feminine hygiene products and other necessities, such as adult and child diapers.

Baker Botts L.L.P Senior Trial Associate Kelly Hanen and I worked behind the scenes on behalf of our pro bono client, the Texas Menstrual Equity Coalition, to achieve this result. I am thrilled with this outcome, and everyone on the team is incredibly proud to have played a role.

It was an achievement years in the making. Three years ago, I was approached by a founding member of the Texas Menstrual Equity Coalition to investigate a legal avenue to eliminate the tampon tax under the then-current regulations. The Texas Menstrual Equity Coalition is a group of young women whose mission is to eradicate the tampon tax and end period poverty.1 I recruited Kelly Hanen and then-Baker Botts Partner Meghan McElvy to the cause; the rest is history. As Meghan McElvy described it, “By and large, these were high school and college-age women who saw an inequity and wanted to address it. We were impressed by their initiative and tenacity

and we got to work.”

The Coalition members had seen news articles of lawsuits filed in Michigan and New York arguing that sales tax on menstrual products was unconstitutional gender-based discrimination and wanted to see if there was some legal basis to argue the same in Texas. I felt like I was back in law school taking Con Law I. I spent a ton of time reading United States Supreme Court and Texas state gender discrimination cases to understand the legal framework in which to make our argument. Tom Phillips, retired Chief Justice of the Supreme Court of Texas and current Baker Botts partner, reminded us that because Texas’ constitution includes an Equal Rights Amendment, sex is a suspect class and laws differentiating based on sex invoke strict scrutiny review.2 While a good development, ultimately that argument took a back seat.

“We got the tax group involved and they suggested avenues to make arguments in support of our position under the tax code,” Kelly Hanen said. “Ultimately a regulatory basis for sales tax exemption became our primary argument, but we included constitutional arguments in the alternative.”

Renn Nielson, a partner in Baker Botts’ tax group, and then-Baker Botts Tax Associate Ali Foyt (now in-house counsel at Cheniere Energy, Inc.) helped Kelly Hanen, Meghan McElvy, and me navigate the tax code and identify legal avenues for a claim. Ultimately, we filed an administrative proceeding against the Texas Comptroller in the form of a refund claim for sales tax paid on feminine hygiene products. But before submitting our claim to the Comptroller, we had to jump a few logistical hurdles. “We had to find a retailer willing to assign their right to refund to us,” said Ali Foyt. “It’s a bit funny thinking back on those initial calls to large retailers like CVS and H-E-B to ask them for an assignment of right to refund for a claim that ended up totaling only $1.78.” Doyle’s Pharmacy in Houston agreed to assign their right to seek a sales tax refund. Then, we went

shopping.

We went with our client to buy every type of feminine hygiene product imaginable. We had to demonstrate that tax was paid on these products. “We also bought over-the-counter prostate vitamins and libido enhancers to prove a point in our submission to the Comptroller—those male-specific products were already tax free, but tampons were not,” added Kelly Hanen.

Then, we began crafting our refund claim. We argued that under elementary principles of administrative law, the Comptroller’s own regulations prohibited the taxation of menstrual products. “Ali Foyt was instrumental in helping us navigate the history of the ‘wound care dressing’ sales tax exemption under which we were making our argument that feminine hygiene products should also be exempt,” said Kelly Hanen.

This argument combined legislative history and textual interpretation. In July of 1999, the Comptroller announced a policy change wherein it began to recognize “wound care supplies” as a “drug or medicine” exempt from sales tax if dispensed under a prescription by a licensed physician.3 Around this same time, the Texas Legislature amended the state tax code to provide a sales tax exemption for certain over-the-counter drugs and medicines, removing the requirement to show evidence of a doctor’s prescription to claim sales tax exemption for certain qualifying items.4 Following this legislative change, the Comptroller promulgated a regulatory amendment to Administrative Rule 3.284 (relating to drugs, medicines, medical equipment, and devices).5 The amendment, among other things, formally advanced the Comptroller’s policy to specifically exempt wound care dressings in that it “add[ed] wound care dressings and certain skin care closure supplies to the definition of [tax-exempt] drugs and medicines...”6 Pursuant to the Comptroller’s rule, “[w]ound care dressing” was defined as an “item that absorbs wound drainage, protects healing tissues, maintains a moist or dry

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17

‘‘

ler and the Governor were wound environment (as apin support of repealing propriate), or prevents bactethe tampon tax through rial contamination.”7 We arlegislation,” said Meghan gued in our submission that With the McElvy.8 “We knew then menstrual products fit withpassage of the that we had to pivot and in this definition and should be tax exempt, just like other legislation, the consider the larger stratblood-absorption products ultimate goal egy of getting legislation like band-aids, which were passed and not just posiof eliminating already receiving tax-free tioning ourselves for a soltreatment. the tampon id legal claim. Ultimately But something was misstax had the client wanted the tax ing. I thought we needed gone, via any means necbeen achieved essary.” “It wasn’t about expert testimony describand the our suit,” added Kelly ing how menstrual products fit within this definilawsuit was Hanen, “it was about tion. I brought this idea up eliminating the tax.” no longer It was great timing for to Meghan McElvy and she necessary.” Ali Andrews, former chief reached out to the OB/GYN who delivered one of her children of the tax litigation divito see if he would be willing to get insion of the Office of the Texas Attorney volved. Dr. John Irwin, an obstetrician General, to join Baker Botts and get inand gynecologist and the former chief volved. She offered guidance on how of surgical service from 2000 to 2016 at to walk the tightrope between pushing the Women’s Hospital of Texas in Housahead with the administrative claim ton’s Texas Medical Center, was immeand ensuring all steps of the refund diately and enthusiastically on board. claim process were satisfied with the He submitted an outstanding expert repolitical considerations and strategy asport detailing the medical and physiosociated with navigating a bill through logical reasons why menstrual products the Legislature. fit the Comptroller’s own definition of “wound care dressing.”

Next, we enlisted the appellate team at Baker Botts to make sure the claim was well-positioned for an appeal to the district court, the court of appeals, and the Texas Supreme Court (if it ever got that far). “The submission just wouldn’t have been as strong without that group’s input,” said Kelly Hanen.

The Comptroller denied the refund claim. We appealed that decision through all required administrative channels and were prepared to appeal the case all the way to the Texas Supreme Court, if necessary. Instead, the Texas Legislature took action.

Kelly Hanen, Meghan McElvy, Ali Foyt, and Ali “We were working our way through Andrews worked together with Laura Shoemaker McGonagill. exhausting our administrative remedies and were receiving positive press surIn the 88th Legislative Session, sevrounding our efforts, then we saw news eral bills were introduced that would articles indicating that the Comptrolexempt menstrual products from sales 18 July/August 2023

thehoustonlawyer.com

tax, but two front-runners emerged: HB 300 and SB 379. Representative Donna Howard had been introducing similar bills at every Texas legislative session since 2017. At first, HB 300 had momentum, receiving a committee hearing and giving us the opportunity to testify in front of various legislative committees on behalf of their client in support. But ultimately SB 379 prevailed. On May 23, 2023, the Texas Legislature voted in favor of SB 379, which codifies the Comptroller’s existing policy on wound care dressings while exempting feminine hygiene products in their own right, along with other medical necessities, such as adult and child diapers. The bill was signed by Governor Abbott on June 18, 2023, and goes into effect on September 1, 2023.9

Laura Shoemaker McGonagill (right) and Kelly Hanen celebrate the passage of SB 379.

“We have no way of knowing if our refund proceeding against the Comptroller and the press coverage surrounding that claim inspired the Legislature to act, but we like to think it did,” said Kelly Hanen. “SB 379’s inclusion of the definition of a ‘wound care dressing’ suggests the Legislature was aware of our impending lawsuit, and that they agreed that feminine hygiene products should be exempt but wanted to get there in their own way,” added

Ali Andrews.

With the passage of the legislation, the ultimate goal of eliminating the tampon tax had been achieved and the lawsuit was no longer necessary. Feminine hygiene products will be exempt from sales tax in Texas beginning on September 1, 2023. This is one of those career-defining cases for me. I have never been prouder. It is an incredible honor to be associated with the Texas Menstrual Equity Coalition and to see all their hard advocacy work pay off.

We played a small part in this story— they were the grassroots organizers and deserve the credit.

Laura Shoemaker McGonagill is a senior trial associate at Baker Botts L.L.P. Laura’s practice focuses on energy and tort litigation, with trial experience in Texas state court and international arbitral forums.

‘‘

It wasn’t about our suit... it was about eliminating the tax.”

Endnotes

1. TXME Coalition (@TXMECoalition), TWITTER. https://twitter. com/TXMECoalition?ref_src=twsrc%5Egoogle%7Ctwcamp%5E serp%7Ctwgr%5Eauthor (last visited July 6, 2023).

2. Toungate v. Bastrop Indep. Sch. Dist., 842 S.W.2d 823, 826 (Tex. App. 1992) (“The ERA elevates sex to a suspect classification.”).

3. Tex. Comp. Pub. Acc’ts, Taxability Memo No. 9904304L (April 9, 1999), available at https://star.comptroller.texas.gov/ view/9904304L; Tex. Comp. Pub. Acc’ts, Decision No. 38,935 (2002) (regarding tax years 1994–97); see also Tex. Comp. Pub. Acc’ts, Decision No. 39,457 (2004) (discussing the history of the wound care exemption).

4. 1999 Tex. Sess. Law Serv. 394 (S.B. 441); TEX. TAX CODE § 151.313(a)(3) (2000).

5. The Texas Comptroller of Public Accounts is charged with adopting and enforcing rules to administer the Tax Code. 26 Tex. Reg. 6303(Aug. 29, 2001) (codified at 34 TEX. ADMIN. CODE § 3.284) proposed by 26 Tex. Reg. 1103–05 (Feb. 2, 2001); TEX. TAX CODE § 111.002.

6. 26 Tex. Reg. 4213 (June 13, 2001).

7. 34 TEX. ADMIN. CODE § 3.284(a)(15).

8. William Melhado, Texas Gov. Greg Abbott Joins Other Key Republicans in Supporting Repealing the “Tampon Tax,” TEXAS TRIB. (Aug. 19, 2022), https://www.texastribune.org/2022/08/18/ glenn-hegar-joan-huffman-tampon-tax/.

9. 2023 Tex. Sess. Law Serv. 3307 (S.B. 379).

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19

F A Houston

By David Nelson

Okinawa Legal Odyssey:

Attorney’s Reflection on Serving, 50 Years Later

David at Camp Courtney’s U.S. Marine Corps Law Center, Okinawa.

ifty years ago, in 1973, I served as a Marine Corps judge advocate (“JAG”) in Okinawa, Japan.

I arrived on the island on December 7, 1972, which was Pearl Harbor Remembrance Day. The following 12 months in Okinawa would prove to be some of the most fascinating months of my life and legal career—a bona fide odyssey.

Within two weeks, the so-called “Christmas bombings” of North Vietnam began. These bombings were ordered by President Richard Nixon after a breakdown in peace talks. From December 18 to December 29, except for Christmas Day, the U.S. conducted the most intense bombing campaign of the Vietnam War. On the early morning of December 18, refueling KC-135 tankers took off from Okinawa’s Kadena Air Force Base, rudely awakening me with their deafening roar.

The planes flew so low over my Bachelor Officers’ Quarters that I could see and smell the lingering jet fumes. That afternoon, the refueling tankers arrived back on the island in distinct, almost choreographed waves.

Weeks later, while driving along the main highway near Kadena, I almost lost control of my vehicle. The infamous SR71 Blackbird, nicknamed “Habu” after a venomous snake indigenous to Okinawa, landed almost directly in front of me. The spy plane’s noise and proximity startled me, and I immediately wondered if it was returning from a surveillance mission over North Vietnam.

In its January 24, 1973 edition, the Pacific Stars and Stripes—an American military newspaper—announced the death of former President Lyndon B. Johnson, the Roe v. Wade Supreme Court decision, the resumption of the Paris peace talks, and George Foreman’s knockout of fellow boxer Joe Frazier. A few days later, the U.S. military ended its involvement in the Vietnam War. Watching on a small Japanese TV set, I was thrilled to see our POWs return to the U.S. and be greeted as heroes.

Upon my arrival, I was assigned as

a defense counsel at Camp Hansen.

Three Marines were charged with mutiny aboard the USS Sumter, and I met with one of them. Eventually, the mutiny charge was downgraded, but the case dragged on for months before the Marines were given administrative discharges. Another serious case to which I was assigned as defense counsel involved attempted murder. Fortunately for the accused Marine, I was able to negotiate a plea bargain for a favorable sentence.

In March 1973, I was transferred to the main Marine legal base at Camp Courtney, also in Okinawa, to serve as a legal assistance officer. There, I spent some of the most satisfying and rewarding months of my entire legal career, both in the military and as a civilian. I assisted Marines and their dependents with income tax issues, traffic citations from California, marriage issues, divorce situations, and financial arrangements.

In one instance, I was consulted by the wife of a Marine stationed in Okinawa.

The Marine’s wife had joined him on the island but became involved in an affair with another Marine. The wife’s husband was looking for the two involved in the affair and threatened to kill both of them.

I immediately contacted the threatening Marine’s commanding officer and explained the situation to him. That night, the threatening Marine was transferred off the island. I never found out what happened to his wife.

In another marital situation, I consulted with a Marine who arrived in Okinawa from the Philippines. While drunk one night in the Philippines, the Marine married his date in a quick—but apparently legal—ceremony. Although he never expected to see the woman again, the Marine’s wife somehow managed to contact his commanding officer and demanded that the Marine pay monthly support to her. The Marine Corps took support of dependents quite seriously, and the married Marine was in trouble. I asked him if there was any chance of getting a divorce, and he said his wife had refused. Apparently, she wanted to remain married long thehoustonlawyer.com

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21

enough to collect substantial support. I advised him that, short of obtaining a divorce, having the marriage annulled, or leaving the Marine Corps, his wife would likely press him for marital support. I never found out what became of that Marine, but I suspect he left the Marine Corps as quickly as possible.

While serving as a legal assistance officer, one of my duties was to consult with young Marines who wanted to marry girls from Okinawa. On many occasions, I met with both the Marine and his fiancée, who sometimes could barely understand English. I had to advise the couple that even if they got married in Okinawa, it did not automatically allow the fiancée’s entrance into the U.S. For example, if the fiancée or any member of her Marine Corps vans served as standard transportation in Okinawa. and being discharged from the Marine sign personally, without disclosing the immediate family was a member of the Corps, my family and I settled down in actual writer.

Communist Party or she had a commuHouston, Texas. In 1981, Ernst & Young I always enjoyed assisting Marines nicable disease, she could not enter the promoted me to tax partner, and in 1991, when they were pressured by a stateside U.S., even if married to the Marine.

I became vice president & grant director attorney to agree to terms of a lawsuit, Another normal part of my job as a leof Houston Endowment, a large, private such as a divorce action. On numerous gal assistance officer was to draft various foundation. I thoroughly enjoyed those occasions, I drafted a letdocuments, such as powers two very different careers, but neither poter for a Marine to sign and of attorney and wills. Most sition produced as much excitement and send to a plaintiff’s attorney Marines were content with satisfaction as did my 12 months spent as if the Marine disagreed with standard will provisions, but Another normal the lawsuit or just wanted a Marine judge advocate on the small isoccasionally, I inserted some unusual language. For exampart of my to postpone it. All I had to land of Okinawa, Japan. in the letter was a ple, one Marine insisted that job as a legal include reference to the Soldiers’ David Nelson his will provide for his cremaassistance officer and Sailors’ Civil Relief Act spent three years tion and the scattering of his of 1940, which stated that on active duty in ashes over the Rocky Mounwas to draft when a military person was the Marine Corps tains in Colorado. I changed various documents, overseas, action on a lawsuit and achieved the the normal will provisions to rank of captain. accommodate his wishes. such as powers was suspended unless and until the person consented When the Vietnam War ended in late Although Marine lawyers of attorney to the lawsuit or returned January 1973, he was stationed in were required to be licensed and wills.” to the United States. I al- Okinawa. After being discharged, by a state board, we were not ways suspected that many he became a tax partner with allowed to sign legal letters a plaintiff’s attorney was unaware of that Houston’s Ernst & Young, and later on behalf of our Marine clients. However, provision in the law. vice president & grant director with it was acceptable practice for us to draft a After returning to the States in late 1973 Houston Endowment. letter for a Marine and have that Marine

‘‘

22 July/August 2023

thehoustonlawyer.com

Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.

Abraham, Watkins, Nichols, Agosto,

Jenkins & Kamin, L.L.P.

Aziz & Stogner

The Jurek Law Group, PLLC

Akin Gump Strauss Hauer & Feld LLP

King & Spalding LLP

Baker Botts L.L.P.

Kirkland & Ellis LLP

BakerHostetler LLP

Locke Lord LLP

Beck Redden LLP

LyondellBasell Industries

Blank Rome LLP

Martin R.G. Marasigan Law Offices

Bracewell LLP

McDowell & Hetherington LLP

CenterPoint Energy, Inc.

McGarvey PLLC

Chamberlain Hrdlicka

Morgan, Lewis & Bockius LLP

Chevron USA

Norton Rose Fulbright US LLP

Dentons US LLP

Reed Smith LLP

The Ericksen Law Firm

Cindi L. Rickman, Attorney at Law

Eversheds Sutherland US LLP

Royston, Rayzor, Vickery & Williams, LLP

Exxon Mobil Corporation

Sanchez Law Firm

Fleurinord Law PLLC

Shell Oil Company

Foley & Lardner LLP

Shipley Snell Montgomery LLP

Frye and Benavidez, PLLC

Shortt & Nguyen, P.C.

Fuqua & Associates, P.C.

Sidley Austin LLP

Gibbs & Bruns LLP

Angela Solice, Attorney at Law

Gibson, Dunn & Crutcher LLP

Sorrels Law

Gray Reed

Squire Patton Boggs

Greenberg Traurig, LLP

Law Office of Norma Levine Trusch

Halliburton Energy

Vinson & Elkins LLP

Hasley Scarano, L.L.P.

Weycer, Kaplan, Pulaski & Zuber, P.C.

Haynes and Boone, L.L.P.

Wilson, Cribbs, & Goren, P.C.

Houston Office | Balch & Bingham LLP

Winstead PC

Hunton Andrews Kurth LLP

Winston & Strawn LLP

Jackson Walker L.L.P.

Yetter Coleman LLP

thehoustonlawyer.com

July/August 2023

23

By Andrew Pearce and Krisina Zuñiga

How Two Law Firms Heard and Heeded a Call to Action

G

eorge Floyd was murdered by a police officer on May 25, 2020. What followed were protests, memorials, and calls to action across the country and around the world. Two law firms in Houston responded to those calls to action by offering legal services to Black and minority-owned business owners who could not likely otherwise afford them.

Susman Godfrey Susman Godfrey has been named Vault’s #1 litigation boutique in America every year since the award’s inception in 2011 and is well-known as a premier litigation boutique handling high stakes commercial litigation. Shortly after the murder of George Floyd, Susman Godfrey formed a Racial Justice Working Group to recommend ways in which the firm could better address issues of racial injustice in this country.

One of the ideas to come out of that working group was the creation of a pro bono initiative, called the Susman Godfrey Minority-Owned Business (“MOBUS”) Pro Bono Program. The initiative partnered with Dr. Saleha Khumawala, the founding director of the University of Houston’s Stimulating Urban Renewal Through Entrepreneurship (SURE™) Program. The SURE™ Program’s mission is to provide real-world experiential learning to students in the UH Bauer College of Business by partnering them with aspiring local entrepreneurs from underserved communities and veterans in the Houston area with

the goal of enabling economic stimulation.

By partnering with the SURE™ Program, Susman has invited small, minorityowned businesses selected for the SURE℠ Program to apply for pro bono commercial litigation representation. Through the MOBUS Program, in turn, Susman provides legal representation to minorityowned businesses in Houston in connection with commercial litigation, such as breach of contract, fraud, and other business disputes.

Susman’s MOBUS program is led by Shawn Raymond and Laranda Walker.

Team members include Krisina Zuñiga and Florence Chen. Susman attorneys who have an interest in the MOBUS program are invited to participate, receiving hourly credit for their work, the same as billable hours.

One recent MOBUS success story is Susman’s representation of a local entrepreneur who participated in the SURE™ Program and founded a wedding and event planning company. After this business owner provided wedding planning services for a client pursuant to the terms of the parties’ agreement, the client refused to pay. Unfortunately, given the low amount in controversy and evasive conduct by the defendant, it would have been difficult, if not impossible, for the business owner to engage a contingency fee lawyer.

The amount in controversy was likewise too little to justify paying an hourly attorney’s billable rate. Susman took the case, pro bono, successfully obtaining a default judgment, and is currently in the process of collecting, all at no cost to the business owner.

You can learn more about Susman’s MOBUS Program at https://www.susmangodfrey.com/minority-owned-businessmobus-pro-bono-program/.

BoyarMiller BoyarMiller is a Houston-based law firm that has served as a strategic partner for organizations of all sizes—from mid-size businesses to Fortune 500 companies— across the country and around the globe for more than three decades. Jimmie

Johnson, who has been BoyarMiller’s office services manager since 2003, hoped BoyarMiller would do something more than offer sympathies following George Floyd’s murder. So, he approached the firm’s leadership and asked if BoyarMiller could find a way to positively impact the lives of people who might not otherwise have access to BoyarMiller’s services. That request perfectly aligned with BoyarMiller’s mission statement, which is to provide counsel beyond expectations, build lasting relationships, and make a meaningful difference in people’s lives.

From those conversations, BoyarMiller’s Legal Assistance for Black-Owned Businesses (“LABB”) Program was launched in November of 2020. The LABB Program was developed by BoyarMiller to deliver pro bono legal help to Black-owned-andmanaged for-profit businesses, while contributing in a meaningful way to the community. Like Susman’s program, BoyarMiller invites attorneys to participate on the strategic team that solicits, reviews,

and oversees the firm’s pro bono matters.

Attorneys who work on LABB matters receive hourly credit for their work.

BoyarMiller helps these Black-ownedand-managed for-profit businesses advance their business and achieve goals through strategic legal services and guidance. One of the first matters that BoyarMiller accepted came from Shawn Raymond at Susman.

He referred an individual who wanted to start a general cleaning services company.

BoyarMiller assisted the client with filing a Certificate of Formation, Organizational Consent, and Company Agreement, while also providing information to assist him in applying for a Minority Business Enterprise certification. In 2022, Hilary Tyson received the 2022 Texas Access to Justice Commission’s Corporate Counsel Pro Bono Award for her work under the LABB Program. And, in the first half of 2023 alone, BoyarMiller’s LABB Program has seen seven attorneys assist five clients on various matters, including the restructuring of a client’s company to a 501(c)(3)

nonprofit organization, assisting a client with the purchase of a mobile billboard truck, and assisting clients with legal disputes.

You can learn more about BoyarMiller’s LABB Program at https://www.boyarmiller. com/about-us/legal-assistance-for-blackowned-businesses/.

Andrew Pearce is a shareholder and the litigation group chair at BoyarMiller. He is the Articles editor for The Houston Lawyer.

Krisina Zuñiga is an attorney at Susman Godfrey. She currently serves as a vice chair of the Houston Bar Foundation and as a director of the Hispanic Bar Association of Houston and is a past president of the Houston Young Lawyers Association.

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25

By Parth S. Gejji

Retained Control Over Independent Contractors Still Raising Important Questions

T

he Texas Supreme Court has issued opinions since the mid1980s regarding the duty a premises owner or general contractor owes with respect to work performed by an independent contractor.1 As a general rule, one who retains an independent contractor has no duty to ensure that the contractor performs its work safely.2 But an exception exists “when the employer retains some control over the manner in which the contractor performs the work that causes the damage.” Plaintiffs can prove that the employer retained control by showing actual control over the manner in which the independent contractor performed work or a contractual right to do so. But the control has to relate to the condition or activity that caused the injury.

This duty analysis regarding retained control was adopted by the Texas Supreme Court from § 414 of the Restatement (Second) of Torts,3 which states: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

That rule is now stated in § 56 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which states: When an actor entrusts work to an independent contractor but retains control over any part of the work, the actor has a duty of reasonable care as to the exercise of the retained control.

Recent En Banc Case from the First Court of Appeals A recent en banc opinion from the First Court of Appeals, Torres v. Pasadena Refining Systems, Inc.,4 illustrates that important questions are still being litigated regarding this duty analysis. The en banc opinion produced a dissenting opinion.5

the work. Torres slipped and fell while The panel opinion was a split decision 6 he was on the scaffold attempting to and featured a vigorous dissent, as well. latch his safety lanyard. Torres alleged These various opinions are a fascinating that, among other things, read for any serious students the scaffold was dangerous of the Restatement of Torts because of the placement and tort law. of the access gate and a A personal injury claimAs a general tarp impeding access to the ant, Michael Torres, sued rule, one scaffold platform, and bePasadena Refining Systems, Inc. (“PRSI”) and National who retains cause of the lack of proper fall protection—either a Plant Services, LLC (“NPS”).7 an independent self-retracting lifeline or a PRSI retained 3-J Ryan, Inc. contractor ladder cage. The trial court (“Ryan”) as an independent contractor to perform turnhas no duty granted summary judgaround work at its refinery. to ensure ment to both PRSI and NPS on the basis that there was In turn, Ryan hired NPS to that the no duty owed to Torres. build the scaffold needed for the work. contractor The panel issued a split Torres was an employee of performs decision, with the panel majority reversing sumRyan. In other words, neither its work mary judgment as to both PRSI nor NPS owed Torres safely.” PRSI and NPS.8 The en banc any duties under the employer-employee relationship. Rathmajority affirmed summary er, Torres’ employer was PRSI’s indepenjudgment in favor of PRSI, but reversed dent contractor, which had hired another summary judgment in favor of NPS.9 The company to build the scaffold needed for en banc opinion contains a comprehen-

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sive summary of the current state of the law regarding the duty owed by a premises owner or general contractor when a dangerous condition arises from the work of an independent contractor.

As to PRSI, the en banc court held that there was no evidence of contractual or actual control. Examining the contract between PRSI and Ryan, the en banc court found that none of the provisions allowed the kind of control that would give rise to a duty on behalf of PRSI to Ryan’s employee, i.e., Torres. The provisions at issue were contained in an exhibit to the contract between PRSI and Ryan, and concerned health, safety, and environmental requirements. Among other things, the provisions stated: PRSI shall have the right, but not the obligation, to inspect the worksite and associated work records and to interview personnel to ascertain that [Ryan] is complying with the expectations and requirements of this attachment.

Should [Ryan] fail to observe the requirements of this attachment, PRSI shall have the right to stop the work performed by [Ryan] at the worksite and to take the action necessary to resolve the condition with all related costs of such action for [Ryan’s] account. ...

Stop Work or Suspension. The PRSI has the right to stop or suspend the work of [Ryan] for any reason, including, but not limited to, [Ryan’s] failure to comply with any of the safety and health requirements either set forth in this Contract or incorporated by reference.

Correction of Deficiencies.

When the PRSI notifies [Ryan], either verbally or in writing, that [Ryan] is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, [Ryan] shall correct the deficiency immediately.

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Torres asserted that the provision rework. The case as to NPS (the scaffold garding “Correction of Deficiencies” esbuilder) was straightforward: NPS built, tablished that there was a contractual maintained, and inspected the scaffold, right of control. The en banc court reso it owed a duty with respect to the danjected this argument, and held that, as gerous condition of the scaffold. But the a whole, the contract simply gave PRSI a case as to PRSI (the premises owner) was right to inspect the worksite and the right complicated by the contractual language, to stop work. This was not enough to esincluding the right to correct safety detablish control: “It is well ficiencies. Relying on Texas established that reserving Supreme Court authority, a general right to order the Torres holds that the right work stopped or to inspect to stop the work due to Torres alleged safety concerns does not its progress is not evidence that, among other impose a duty on the premof retained control.”

Turning to actual control, things, the scaf- ises owner or general con12 the en banc court found no fold was danger- tractor. evidence of control being But the debate articulated ous because of the by the Torres opinions is not exercised on the worksite placement of the specific to Texas. Rather,

by PRSI. Because Torres “did not present evidence access gate and a that debate has been playthat PRSI knew of a dangertarp impeding ac- ing out since § 414 was pubous condition and yet specess to the scaffold lished by the Restatement cifically approved a danger(Second) of Torts. As § 56 of platform , and be- the Restatement (Third) of ous act,” the en banc court cause of the lack of Torts explains, there were concluded there was no evidence regarding actual proper fall protec- two conflicting comments control. tion—either a self- to § 414, and they have reAs to NPS, both the en banc sulted in a “a recurring retracting lifeline or question on which courts and panel majority agreed a ladder cage.” have divided: whether suffithat there was a duty based 10 on actual control. NPS built cient retained control exists when the hirer retains the power to forand maintained the scaffold, inspected bid or stop the work of a contractor if the the scaffold daily, and would assign the hirer believes the work is unsafe.”13 appropriate safety tag for the scaffold indicating whether it could be used.

Section 56 of the Restatement (Third) The dissenting opinion to the en banc of Torts seemingly sides with those courts majority argued that PRSI had a contracthat have held that the ability to forbid tual right of control based on the “Cordangerous work is not enough to imrection of Deficiencies” provision.11 The pose a duty. Indeed, the two conflicting comments have now been revised, and dissent argued that the provision was the Restatement’s latest position seems unambiguous, and “reserve[s] to PRSI clear: “the control necessary to trigger the right to require [Ryan] to ‘correct’ an a duty...requires more than merely the unsafe work practice. [Ryan] is thus not general right to order the work stopped free to do the work entirely in the manner or resumed, to inspect its progress or to it sees fit.” receive reports, to make suggestions or recommendations that need not necessarContinuing Debate Due to the ily be followed, or to prescribe alterations Restatement of Torts and deviations.”14 But the Restatement Torres is an important case because it demonstrates that there are continuthen backpedals and declares: “But the ing debates regarding the duty analysis ‘general right’ to order the work stopped involving an independent contractor’s or resumed is different from a more spe-

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cific right to stop the work if the hirer believes that it is being performed dangerously.”15 In other words, the “more specific right” may need to be analyzed differently than the “general right.”

In short, the Restatement continues to invite debate about the duty a premises owner or general contractor owes with respect to the work of an independent contractor, and Torres represents another important holding on this issue.

2022 WL 17684333, reconsideration en banc denied, 2023 WL 1974740.

7. Torres, 2022 WL 17684333, at *1.

8. Torres, 2022 WL 1467374, at *1.

9. Torres, 2022 WL 17684333, at *18.

10. Id. at *15-18; Torres, 2022 WL 1467374, at *12-15.

11. Torres, 2023 WL 1974740, at *2.

12. Torres, 2022 WL 17684333, at *9 (citing inter alia Dow Chem., 89 S.W.3d at 606-08 and Koch Ref., 11 S.W.3d at 155).

13. Restatement (Third) of Torts: Physical & Emotional Harm § 56 reporter’s note c.

14. Id. § 56 cmt. c.

15. Id. § 56 reporter’s note c.

Parth S. Gejji is an associate in Beck Redden’s appellate section. Parth focuses his practice on civil appeals and complex civil litigation.

Endnotes

1. See, e.g., Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155-56 (Tex. 1999); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001); Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605-06 (Tex. 2002); AEP Tex. Central Co. v.

Arredondo, 612 S.W.3d 289, 295 (Tex. 2020); JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864-65 (Tex. 2021).

2. JLB Builders, 622 S.W.3d at 864-65.

3. Redinger, 689 S.W.2d at 418.

4. Torres v. Pasadena Ref. Sys., Inc., No. 01-18-00638-CV, 2022 WL 17684333 (Tex. App.— Houston [1st Dist.] Dec. 15, 2022, no pet. h.) (en banc).

5. Torres v. Pasadena Ref. Sys., Inc., No. 01-18-00638-CV, 2023 WL 1974740 (Tex. App.—Houston [1st Dist.] Feb. 12, 2023, no pet.).

6. See Torres v. Pasadena Ref. Sys., Inc., No. 01-18-00638-CV, 2022 WL 1467374 (Tex. App.— Houston [1st Dist.] May 10, 2022), withdrawn and superseded on reconsideration en banc,

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An Interview with HBA President Diana Gomez HBA President Diana Gomez talks about the significance of her family and mentors, and why it’s important to enjoy what you do.

Where were you born and where did you grow up?

Diana: I was born in Brownsville, Texas.

My parents, Juan Jose Pérez and Cecilia Pérez, moved to Katy, Texas when I was in grade school.

Tell us about your family.

Diana: I am married to the love of my life, Michael Gomez, and we have two amazing kids, Matthew (12) and Elina (7). We are fortunate to have both of our families in Houston, including our parents and my sister, Melisa Araujo, and

Visiting the Isak Heartstone sculpture in Breckenridge, Colorado.

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HBA Presid

my brother, Javier Pérez, who along with my brother-in-law are the best aunt and uncles to our wonderful children. We enjoy spending time with our families. Not a week goes by when we don’t get together for dinner, family game night, or a movie and we consider ourselves blessed.

Where did you go to college and law school?

Diana: I attended Texas A&M University in College Station, Texas and the University of Texas School of Law in Austin, Texas. I get asked often about attending two rival schools. My response is always the same: put Hook’em Horns and Gig’em together and it creates “love” in sign language.

What prompted you to pursue a career in law?

Diana: As a young child, I remember my grandmother, Angelita De La Cruz, struggling to keep her house during an eminent domain attempt and I recall how helpless she felt.

I wanted a career to help my family from being in that position again. Ev-

ent Diana G

omez

ery time I spoke with my grandmother, she asked me the same question: “Do you like what you do?” She always told me that so long as I enjoy my job, it won’t feel like work. I grew up watching my grandmother work at least two jobs every day. She cleaned houses, picked fruit, and washed clothes. Although she worked very hard, I don’t remember a day when she seemed unhappy about her work. While practicing law can be stressful, I’ve enjoyed it every day and can’t imagine doing anything else.

What are your areas of specialty and what firms have you worked with in your legal career?

Diana: Currently, I have a trial practice with an emphasis in labor and employment law. I started my legal career handling medical malpractice and general defense matters at Preston & Cowan, where I worked with Michele Quattlebuam, an incredible trial attorney. In 2006, I started at Martin, Disiere, Jefferson & Wisdom and had the privilege to work with trial attorneys like Jack

Wisdom, Jim Cleary, Elizabeth Kroger, Chris Martin, and Dale Jefferson. Five years ago, I moved to Chamberlain Hrdlicka and enjoy working with some of the best attorneys in Houston who have been incredibly supportive of my endeavors with the HBA.

Diana: I enjoy musicals, decorating for the holidays, and baking. I’m fascinated with studying all sorts of sciences, including paleontology, physics, and oceanography. As a family, we enjoy traveling, movie nights, and Sunday lunch with our extended family.

Who are your mentors?

Diana: I have amazing mentors in my life, including Father Salvatore de George and my sister. My parents have been my constant mentors and role models—not only because of the love they show each other and their amazing careers in the education and medical fields, but also because of the high importance they have always placed on family. I would be remiss if I did not mention some of the most significant mentors in my legal career, including the Honorable Eva Guzman, Congresswoman Sylvia Garcia, Roland Garcia, and Benny Agosto, Jr.

Are you involved with other professional or community organizations?

Diana: I co-chair the Texas Bar Foundation’s Fellows Nominating Committee for District Four and serve on the Hispanic Bar Diana w it city of C h her husband Association’s Board of Direcartagena a , Colomb nd children at th ia. e port tors. I also serve on the City of Houston’s Zoo Development Corporation Board of Directors and am a bar together and help our community sustaining member of the Junior League with initiatives focused on attorney of Houston. engagement, community service, and pipeline programs.

What do you think is the role of the organized bar in society today?

What is your message to Diana: To serve our fellow attorneys HBA members as we begin the What are some of your hobbies and the community through the 2023-2024 bar year? and interests? betterment of our profession, Diana: We are the oldest established community service, and pro bar in Texas, as well as one of the bono work. most successful and largest in the nation due to the dedication of our What do you see as the members. I’d like to say, “Thank you.” role of the president in the We have some exciting events Houston Bar Association? happening this year and I hope you Diana: To guide the Houston will join us in our committees, Bar Association to achieve sections, and special events. those goals.

I also ask that you please consider using and participating in our mediation, What areas will you referral, and pro bono services focus on during your with our amazing ancillary organizaadministration and tions—the Dispute Resolution why?

Center, the Houston Lawyer Referral w n, Matthe eir childre n Houston. th d n a , z w Diana: This year, Service, and the Houston Volunteer nto ome , Judge G ost in dow r husband ay lights at The P e h h it w we will work to bring the Lawyers. holid Diana , enjoying and Elina

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Diana Gomez Sworn in as First Latina President of the Houston Bar Association Diana Gomez, shareholder and member of the board of directors of Chamberlain Hrdlicka, took office as the 2023-2024 president of the Houston Bar Association. Gomez is the first Latina—and the sixth woman—to serve as HBA president in the organization’s 153-year history. She succeeds Christopher V. Popov of Vinson & Elkins LLP. Gomez was sworn in at the HBA Annual Dinner at the River Oaks Country Club on May 11. State Representative Ana Hernadez and Harris County Commissioner Lesley Briones each presented resolutions to commemorate Diana as the 2023-2024 HBA president. State Representative Armando Walle presented Gomez with a gavel, as well.

The evening included a presentation of the HBA President’s Awards, given to outstanding members to celebrate their accomplishments over the past year. The HBA also presented the Justice Eugene A. Cook Professionalism Award, the association’s highest award for professionalism, to the Honorable Lee H. Rosenthal Shauna Johnson Clark of the U.S. District Court for the Southern District of Texas and Reagan W. Simpson of Yetter Coleman LLP. The HBA presented the Justice Ruby Kless Sondock Award to Ann Ryan Robertson of Locke Lord LLP, recognizing outstanding achievement and leadership for women in the law.

Photography by Deborah Wallace, Barfield Photography

2022-2023 HBA President Christopher V. Popov presents the gavel to incoming HBA President Diana Gomez.

Popov and Gomez with HBA Executive Director Mindy Davidson.

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Gomez with her husband, the Hon. Michael Gomez of the 129th Civil District Court, and their children, Elina and Matthew.

Gomez with (L to R) State Rep. Armando Walle, State Rep. Ana Hernandez, Harris County Commissioner Lesley Briones, and Christopher V. Popov.

Popov with HBA Executive Director Mindy Davidson.

Popov with the Hon. Lee H. Rosenthal (left) and Reagan W. Simpson, this year’s recipients of the Justice Eugene A. Cook Professionalism Award.

Popov presents an HBA President’s Award to David Harrell as 2022-2023 chair of Houston Volunteer Lawyers.

State Bar of Texas President-Elect Steve Benesh and his wife, Jennifer.

Popov with Ann Ryan Robertson, recipient of this year’s Justice Ruby Kless Sondock Award.

The 2022-2023 HBA Law & the Media Co-Chairs (L to R): Prof. John Greil, Daniella Landers, Dean Leonard M. Baynes, Michelle Morris, and Christopher Tritico.

50-Year Lawyers The 50-year lawyers pictured here joined us for the HBA Annual Dinner on May 11.

(L to R; T to B) J. Craig Lewis, The Lewis Law Firm; Joe R. Davidson and Rose Marie Davidson; F. Maxwell Evans, Eggleston & Briscoe, LLP; Gary W. Orloff and Marsha Orloff; Mary-Ellen Conway, Attorney at Law (pictured here with Robert W. and Taunya M. Painter); and the Hon. Mike Wood and the Hon. Sharolyn P. Wood. thehoustonlawyer.com

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50-Year Lawyers The HBA recognizes all members who reached their 50th year of practice Mr. James J. Alfini Mr. John C. Allen Mr. Fritz P. Beich Mr. Robert Dwain Blakley Mr. Donald White Brodsky Hon. Jay William Burnett Mr. Justin Marvin Campbell III Mr. John L. Carter Mr. S.C. Childress Mr. Leonard G. Clinton III Mr. Bryan D. Coleman Mr. William V. Condrey Mr. Thomas Reaves Conner Ms. Mary-Ellen Conway Mr. George S. Craft Mr. Michael Alvin Craig Mr. Joe R. Davidson Mr. Grayson Lee Davis Mr. Otway B. Denny Jr. Hon. Brady G. Elliott

Mr. F. Maxwell Evans Mr. Donald J. Fleming Mr. Roy L. Fuller Mr. Richard Lee Fuqua II Mr. Malcolm D. Gibson Hon. Greg Glass Mr. Kevin J. Hagerty Ms. Patricia Hair Mr. Martin Halick Mr. Reginald A. Hirsch Mr. Charles B. Holm Mr. Allen C. Isbell Mr. Charles Joseph Jacobus Mr. Don Karotkin Mr. George M. Kuhn Jr. Mr. William L. LaFuze Mr. J. Craig Lewis Mr. James H. Limmer Hon. David N. Longoria Mr. Robert S. MacIntyre Jr.

Mr. Frank Markantonis Ms. Diana E. Marshall Mr. John Mayer Mr. Paul J. McConnell III Mr. Thomas W. McCulloch Mr. Jerry L. Metcalf Mr. Samuel J. Miller Mr. Patrick Joseph Moran Mr. Robbie S. Morris Mr. William W. Morris Mr. Paul F. Nielsen Mr. Gary W. Orloff Mr. Douglas A. Paisley II Mr. Jeffrey Roger Parsons Mr. Wayne L. Rea Jr. Mr. Glen A. Rosenbaum Mr. Leonard S. Roth Mr. Peter G. Ruppar Mr. Randy Lee Schaffer Mr. Carl Theobold Schultz III

Mr. Joseph M. Schwartz Mr. William H. Seele Mr. George A. Sellnau Mr. Gerald S. Siegmyer Mr. Larry P. Smith Mr. Ronald J. Sommers Mr. James Stafford Mr. Michael O. Sutton Mr. Sidney A. Taylor Jr. Mr. Ronald Harvey Tonkin Mr. John K. Tyler Mr. Jack E. Urquhart Mr. Robert Clinton Walker Mr. Steven J. Watkins Mr. A. Martin Wickliff Jr. Ms. Patricia A. Wicoff Mr. Eugene B. Wilshire Jr. Mr. Rick L Wittenbraker Hon. Mike Wood Hon. Sharolyn P. Wood

President’s Awards Each year, the Houston Bar Association president has the pleasure of recognizing outstanding contributions by HBA members.

The HBA has 33 committees with hundreds of HBA members volunteering their time to further community engagement, plan special projects and events, provide continuing legal education, and more. We recognize a lot of outstanding work goes on throughout the year.

We take this opportunity to recognize only a fraction of this work and dedication with these President’s Awards at our Annual Dinner.

Christopher Popov presented the 2022-2023 President’s Awards to: HBA Law & the Media Committee Dean Leonard M. Baynes, University of Houston Law Center Prof. John Greil, The University of Texas School of Law Daniella Landers, Womble Bond Dickinson (US) LLP Michelle Morris, South Texas College of Law Houston Prof. Elsa Ransom, Thurgood Marshall School of Law Christopher Tritico, Tritico Rainey, PLLC 34 July/August 2023

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Houston Volunteer Lawyers Anne Chandler, HVL Executive Director David Harrell, HVL Board Chair, Locke Lord LLP

Benefiting Houston Volunteer Lawyers

Monday, November 13, 2023 · 7:00 – 10:00 p.m. • River Oaks Country Club

100% of net proceeds raised for the Harvest Celebration directly benefit pro bono efforts in our community through Houston Volunteer Lawyers

Thank you to our 74th Annual Harvest underwriters (as of July 28, 2023).

Diamond Sponsors

Learn more about sponsoring the 74th Annual Harvest Celebration at hba.org/harvest.

Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP Williams Hart & Boundas LLP

Ruby Sponsors

Benny Agosto, Jr. & Nikki Agosto AZA Law Chamberlain Hrdlicka Chevron Corporation HBA Litigation Section

Sapphire Sponsors

BakerHostetler LLP CenterPoint Energy, Inc. LyondellBasell Industries Morgan, Lewis & Bockius LLP

Gold Sponsors

Arnold & Porter LLP Beck Redden LLP Blank Rome LLP Greenberg Traurig, LLP Hewlett Packard Enterprise Hicks Thomas LLP Johnson DeLuca Kurisky & Gould, P.C. King & Spalding LLP Latham & Watkins LLP

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Jane & Doug Bland Hon. Harvey Brown Conoco Phillips Foley & Lardner LLP Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Tom & Debbie Godbold Halliburton HBA Energy Law Section Hicks Davis Wynn, P.C. Jackson Lewis P.C. JAMS Monica Karuturi & Kumaran Sathyamoorthy Kirkland & Ellis LLP

Liskow McGuireWoods LLP Pillsbury Winthrop Shaw Pittman LLP Shook Hardy & Bacon L.L.P. Weil, Gotshal & Manges LLP Yetter Coleman LLP

Bronze Sponsors

Barry & Sue Abrams Akerman LLP Christian Attar Bissinger, Oshman, Williams & Strasburger LLP Burford Perry, LLP CITGO Petroleum Bush Seyferth PLLC Cokinos | Young Coné PLLC Jacquelyn & Collin Cox Mindy & Joshua Davidson Dentons US LLP Diggs & Sadler Digital Insurance, LLC dba One Digital Dobrowski Stafford LLP Emma Doineau Energy Transfer Fayez Sarofim Fogler Brar O’Neil and Gray LLP Frost Bank Germer PLLC Hon. Michael Gomez & Diana Gomez Gray Reed Hagans Montgomery Hagans Linda & Tracy Hester Houston Lawyer Referral Service, Inc. Jackson Walker Jenkins and Kamin, LLP Jordan Lynch & Cancienne Kane Russell Coleman Logan PC Kean Miller LeBlanc Flanery PLLC McDowell Hetherington LLP Munsch Hardt Kopf & Harr, P.C. Jeff Paine & Brandon Holcomb, Goldman Sachs Plains All American Pipeline, L.P. Chris Popov Porter Hedges LLP Reed Smith LLP Reynolds Frizzell LLP

Service Corp International South Texas College of Law Houston Westlake Chemical Corp.

Wright Close & Barger, LLP

Crystal Sponsors

Bartholet Mediation Sharon M. Beausoleil Brent & Christy Benoit The Buck Family Fund BWA Video, Inc. Cozen O’Connor David Toy Law Firm Wendy & Alistair Dawson DLA Piper LLP (US) Eric & Kami D’Olive Kaylan & John Dunn Fullenweider Wilhite, P.C. Jackie & John Furlow Lynn & Stewart W. Gagnon Roland Garcia Craig & Penny Glidden Andrew Gratz Hon. Joseph “Tad” Halbach Lauren & Warren Harris Gregory & Jennifer A. Hasley HBA Appellate Practice Section HBA Construction Law Section HBA Juvenile Law Section HBA Taxation Section HBAA Charitable Fund, Inc. Hedrick Kring Bailey PLLC Hillary Holmes & Matthew Archer Monica Karuturi, TAJC Corporate Counsel Pro Bono Award Recipient Sara & Jason Keith Neil & Dana Kelly Kilpatrick Townsend & Stockton LLP The Law Office of Daniel D. Horowitz III, PC Law Office of Jack Balagia Elizabeth & Russell Lewis Peter Lowy & Gabriela Boersner Hon. Erin Lunceford & Mike Lunceford Diana & Dwaine Massey Tim & Ginnie McConn Hon. Margaret Mirabal Hon. Daryl L. Moore Munck Wilson Mandala Nathan Sommers Jacobs Jeff & Melissa Oldham

O’Neil Wysocki, PC Robert & Taunya Painter Connie H. Pfeiffer Kelly & Mike Prather Aaron M. Reimer & Amanda Heidemann Reimer Rusty Hardin & Associates, LLP Hon. Frank Rynd Travis & Sandy Sales Kay Sim Tramaine Singleton Quentin & Aerin Smith Smyser Kaplan & Veselka Sponsel Miller Greenberg PLLC The Springer Law Firm PLLC Steven C. Howard P.C. Roy & Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP Richard & Laura Whiteley Hon. LaShawn A. Williams Winstead PC Krisina Zuñiga & Rick Houghton

Friend Sponsors

B. Riley Advisory Services Hon. Julie Countiss Amy Catherine Dinn Polly & Stephen Fohn Hon. Angela Graves-Harrington David T. Harvin Jane Langdell Robinson Hon. Robert Schaffer S. Mayer Law Hon. Charles Spain & John Adcock Travis Torrence

Other Sponsors

Craft Hughes Hon. Tanya Garrison Samantha Jarvis Hon. Beau A. Miller Hon. Margaret Poissant Hon. Cheryl Elliott Thornton Brooks & Jacquelyn Tobin Hon. Fran Watson

In-Kind Sponsors

Innovative Legal Solutions

Houston Bar Association Recognizes Law Firm, Attorneys for Excellence in DEI

T

he Houston Bar Association proudly presented the 2023 HBA Diversity Awards at the DEI Summer Associate Luncheon on July 26, recognizing outstanding law firms and individuals for their diversity, equity, and inclusion efforts within the legal profession. The recipients of the 2023 HBA Diversity Awards are: Bush Seyferth PLLC; Eric Muñoz, partner, Akin; and Scott Ellis, managing partner, Foley & Lardner LLP. “As one of the largest bar associations in the country serving over 10,000 members in the most diverse city in the U.S., it’s imperative that we not only continue to embrace diversity within our legal community but to promote diversity through pipeline programs in our high schools and law schools,” said HBA President Diana Gomez. “The HBA is committed to access to justice for all Houstonians, and, as a bar association, we strive to have a membership that represents attorneys from all backgrounds in order to best serve the needs of our community.”

“BSP Law is proud and thrilled to be recognized by the Houston Bar Association for our commitment to establishing and maintaining an inclusive work environment,” said Amy Bice Larson, BSP Law Member. “At BSP, we believe that each of us must be intentionally fierce and conscientious advocates for the deliberate elimination of gender, racial, cultural, and other inequality. We prioritize diversity, equity, and inclusion to create a place where people are encouraged to bring their whole selves to work. We believe that the diverse backgrounds of our lawyers and staff fosters creativity and drives innovation that enable us to provide the highest level of service to our clients.”

Hon. George C. Hanks of the U.S. District Court (speaker), Hon. Sonya Heath of Harris County 310th District Court (luncheon co-chair), Kaitlyn Schock of Sidley Austin LLP (luncheon co-chair), HBA President Diana Gomez, and Bianca Roberson of Shell (speaker).

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“I believe that success is not a zero-sum game, that team members that feel included and listened to are more likely to contribute and provide honest and meaningful feedback and that better outcomes result from well-informed and diverse perspectives,” said Eric Muñoz. “Increasing DEI awareness and engaging in DEI efforts are essential to building more productive teams that bring different viewpoints together and whose members contribute to meeting goals and solving problems. I believe it is our responsibility, and a privilege, to help ensure we develop and get the best out of all of our people so that we can better serve our clients, the legal profession, our communities and, in the end, better serve ourselves. Responsibility and privilege are not often used to describe the same action, but for me, engaging in DEI efforts is both, and when that responsibility and privilege is recognized by your peers that is a real honor.”

“The strength and success of the legal profession requires the inclusion of people with different insights and experiences, which results in more creative and innovative solutions to the problems that we as lawyers are tasked to solve,” said Scott Ellis. “Fostering a culture of inclusion and respect for everyone is a moral imperative, and something that I care deeply about and strive to achieve. I’m incredibly honored and humbled to receive the 2023 HBA Diversity Award.”

The HBA Diversity Awards were created in 2019 by HBA President Benny Agosto, Jr. (2019-2020) to recognize outstanding achievements and dedication by law offices, legal departments, and individuals in the areas of diversity, equity, and inclusion in the legal profession.

(Front row, L to R) Brandon Cofield of The Cofield Law Firm, Hon. Pamela Medina of Harris Co. Probate Court No. 2 (table sponsor & committee member), Hon. Fran Watson of Harris Co. Probate Court No. 2, Markeisa Jackson (HBA DEI 1L Clerk), and Hon. Gracie Saenz of The Law Offices of Graciela Saenz, PLLC. (Back row, L to R) John B. Henry, III, of the Law Office of John B. Henry, III, PLLC, HBA President Diana Gomez of Chamberlain Hrdlicka, HBA Past President Roland Garcia of Greenberg Traurig, LLP, Daniella Landers of Womble Bond Dickinson (US) LLP (HBA board member, committee member), and John Meredith of Chamberlain Hrdlicka.

LAWYERS GIVING BACK

Cristo Rey:

Celebrating 15 Years of Success as a Pipeline Between Students and Law Firms

By Maggie Martin

The HBA offers many opportunities for attorneys and firms to give back to the community through its committee work. Learn how at hba.org/ committees. This year, The Houston Lawyer is highlighting other organizations that also offer an avenue for lawyers to give back to Houston.

P

aul Beck recalls the first time he heard about the Corporate Work-Study Program at Houston’s Cristo Rey Jesuit College Preparatory 15 years ago, long before he would become president of the school.

He was an executive director at Macquarie Group, a global financial firm, when he learned about this college prep high school that is exclusive to economically disadvantaged students and was about to launch this new program. He approached the Macquarie Foundation to help with the funding, knowing they do not support religious causes and/or private schools, both categories describing Cristo Rey Jesuit. The answer from the Foundation was an “easy yes —if we can’t do this, we shouldn’t be in business,” Cristo Rey students recalled Beck.

In 2008, Macquarie became one of the first 10 industry sponsors of Cristo Rey Jesuit’s Corporate Work-Study Program (“CWSP”), with a freshman class of 82 students. Today, Cristo Rey’s WorkStudy Program enrolls nearly 500 students, partnering with 135 corporate partners across 18 industries. Beck said the nearly 20 law firms who participate are the most prominent partners in the program, and include HBA members Chamberlain Hrdlicka, Latham & Watkins LLP, Beck Redden LLP, and Vinson & Elkins LLP, among others. “Our partnership with law firms has opened the desire of many of our students now wanting to investigate careers in the legal industry” Beck said.

The program provides underserved high school students with first-hand experience at some of Houston’s most prestigious companies. Program participants are quickly integrated into the company’s work culture, working alongside professionals at an entry level to learn the basics of an office setting, such as digitizing files and assisting with conference room facilities. For the partners, Cristo Rey’s Work-Study Program offers an economic staffing solution to complete basic office work. For the students, the program instills confidence and real-world experience, empowering them to be college-ready and career-prepared. Beck said since he first worked with 38 July/August 2023

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Cristo Rey students at Macquarie 15 years ago —and continues to do so today as president of the school— he’s in awe of the incredible transformation he sees in these students. This demographic of student statistically has a 10% chance of going to, and graduating from, a four-year university, yet every one of Cristo Rey Jesuit’s 1,200 graduates over the past 11 years has been accepted into colleges all over the country. “It’s the CWSP that makes the difference. After working for our partners, college becomes an expectation for our students —not a reach goal” Beck said.

The program is run by dedicated staff who ensure students have the resources they need to be successful, while also keeping up with their schoolwork. Corporate partners pay an annual contract fee in exchange for Cristo Rey Jesuit’s staff to handle everything from transportation, payroll, insurance, and other aspects of employment. The program is seamlessly integrated into a student’s academic schedule, which is structured so students work the entire academic year (September-May) without ever missing a class, and each grade level works on a specific workday. The program also includes a rigorous two-week summer training program for incoming freshmen and transfer students before they begin their assignments, which focuses on professional development and preparing them for what to expect in a workplace. Students also receive support, feedback, and guidance throughout the school year, and corporate partner supervisors also receive support (as needed) from the CWSP staff.

Beck said the results are outstanding. 96% of students enrolled meet or exceed expectations, according to their corporate supervisors, and daily work attendance is nearly 100%. And Cristo Rey Jesuit’s graduates are successfully graduating from college at a rate four times the national average for this demographic, a statistic Beck attributed to the CWSP. He said, “they are leaving here both college and career ready, but we’re also helping to form them as Men and Women for Others —as selfless leaders— a huge aspect of our Jesuit education.”

You can learn more about Cristo Rey’s Corporate Work-Study Program by visiting https://www.cristoreyjesuit.org/work-study/ the-school-that-works.

Maggie Martin is managing editor of The Houston Lawyer and marketing and communications director of the HBA.

LAW IN THE FAMILY

The Hagans Family Fred became a lawyer in 1972. He is double board certified by the Texas Board of Legal Specialization in Civil Trial Law and Personal Injury Trial Law. William became a lawyer in 2006. He began working with his father, Fred, in 2011. He is board certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. Lindsay became a lawyer in 2013. After clerking for Chief Justice Nathan Hecht and working as an appellate attorney at Bracewell LLP, she accepted a position as staff attorney to Justice Kevin Jewell, where she has worked since 2017.

Fred: I had an impression, from a very early age, of what a lawyer was: heroes that help people. With every client I work with, I want to make sure I have added value to that client’s case and to that client’s life.

We have been careful to keep our firm small and only take the cases that we can spend time on and really dig into. Having the opportunity to work with family has been a great addition to my practice. Whether I’m talking to William about trial strategy or discussing recent appellate opinions with Lindsay, I feel so lucky to get to experience what I believe is the best profession in the world with both of my children—impressive and accomplished attorneys in their own right. The legal profession has been good to my family. I have many fond memories, including having the opportunity as the co-chair of the Texas Supreme Court Professionalism Committee, to work with lawyers and judges around the state to develop and write the Texas Lawyer’s Creed.

ism and hard work. So far, I believe we have. And that is the legacy that we both hope to maintain.

Lindsay: With my father and brother already lawyers when I graduated college, I decided to try something else. I worked in Hollywood before the writers strike (no, the earlier one, in 2008) shut down productions. Then, I moved back to Texas and worked the 2009 legislative session. At the Capitol, I realized I was surrounded by lawyers and I thought, “Hmm. Maybe I should go to law school.

But I won’t work in a law firm like William and Dad.” So, I went to law school, graduated with honors, clerked at the Texas Supreme Court, and...went to work at Bracewell LLP, the same law firm where my father and my brother started their law careers. It truly comes full circle. I left after a few years and returned to a court career, as a staff attorney on the Fourteenth Court of Appeals. I see all kinds of cases there—civil, family, criminal, anything and everything.

I love the work I do, and I love being able to be objective about the appeals we get. My dad and brother are wonderful advocates for their clients, but I’ve learned that I enjoy being a part of the appellate process in the justice system. Maybe I just take after my mother, who taught school for decades—I like to grade people’s work.

Patty: I graduated phi beta kappa from UT and chose to be a teacher in our parish school. But I also spent a great deal of time in the UT Law library—certainly enough time to qualify for an honorary degree— (L to R) Lindsay Hagans, Olga Acosta, Dr. Jance Hagans, William William: Growing up, I was always while Fred was in law school. Fred Hagans, Patty Hagans, and Fred Hagans. aware of what my father did. But, of Anastasia Strate Photography and I married in 1971 in the same course, my mother being my fifth-grade teacher was my more imchurch where my parents were married. mediate concern. As I made my way through college, I found myself gravitating more toward the law and courts-type classes, so I began Jance: My first introduction to the Hagans family was in 2008, when talking to my parents about law school. While I have enjoyed the I met the entire family on my second date with William—a black tie practice and have many things I’m proud of, nothing compares to charity gala. I left to get my doctor of physical therapy degree from Texthe first case I tried. I was a fourth-year associate at Bracewell and as Tech but came back and began going to galas and events again (the convinced my dad to sit second chair with me (for free). We won a Texas Bar Foundation Annual Dinner and HBA/HBF Harvest Celebragreat verdict for a truly deserving client and I immediately realized tion are definitely my favorites). In April 2023, William and I carried that this is what I want to do: work and try cases with my dad. I just on the tradition when we married in the same church as his parents hope my sister and I can uphold the standard he set for professionaland grandparents. thehoustonlawyer.com

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OFF THE RECORD

Love Languages:

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The Houston Lawyer

By Nikki Morris

Thomas and Celia Sekula

homas Sekula practices international arbitration and litigation for King & Spalding and has studied six languages. In addition to his native English, he speaks Spanish, Portuguese, and French, and is also familiar with Italian and Russian. Although quite a feat

by American standards, Thomas downplays his considerable talents, noting that in his field, everyone speaks multiple languages.

Thomas first studied Spanish in high school, where he received average grades. The turning point from average Spanish student to multilingual attorney happened when he met Celia.

Like many who grow up near the border, Celia Villarreal Sekula is bilingual. She speaks both English and Spanish. Her mother is from Mexico, and Celia recalls her grandmother speaking English and The Sekulas in Machu Picchu Spanish in the same sentence. Celia is now a director for Key Choice Recruiting and believes that learning languages is “always a work in progress.” She is currently working on French and Russian.

Thomas and Celia met their first year at the University of Texas School of Law and are now married. According to Thomas, he initially learned Spanish for Celia’s family. “I had to learn Spanish to survive,” he explained. During the pandemic, while many of us struggled with the unexpected free time, the duo put their time to good use by broadening their skills and studying other languag- The Sekulas in Rome es, including Russian because, according to Thomas, it would be “easy because they roll their ‘Rs’ like in Spanish.” According to Celia, however, “it was not easy!” For Celia, studying the Romance languages has been a more passive activity because of her base knowledge of Spanish. When it came to Russian, however, she really had to focus and be intentional, but she enjoyed the challenge. They worked through an app called italki that al40 July/August 2023

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lowed them to take lessons over Zoom with tutors in Russia, and even planned to travel to Russia to practice their skills but, have had to put those plans on hold due to the Russia-Ukraine crisis.

They have, however, been able to practice their other language skills in Italy and France. They went to France right before their wedding. Thomas had been the one focusing on French, and Celia did not realize how much of the language she had retained until they were lost in an Uber and she suddenly started speaking French!

They also spent their first anniversary in Italy and were able to speak some Italian with the locals.

Thomas hopes to eventually learn Mandarin, while Celia would like to focus more on Italian. They both agree, however, that they have to be intentional about their hobby and find ways to expose themselves to each language they are trying to learn. To do this, they incorporate languages into their everyday lives, such as listening to foreign language podcasts while doing chores or watching TV in other languages with English subtitles.

They also read books of varying levels of difficulty based on their proficiency in the language. For example, Celia can read novels in Spanish, but feels more comfortable reading children’s books in French. They also speak to each other in Spanish regularly. According to Thomas, the self-proclaimed poor Spanish student, “anyone can do it if they have the time.”

Thomas and Celia are also excited to share their love of languages with their new baby, due later this year. They hope to start by speaking to him in English and Spanish, but who knows! Given the abilities of his parents, this little one might just take on the world.

Nikki Morris practices commercial litigation and is the Legal Trends column editor for The Houston Lawyer.

A Profile

in pro f e s s io n a l i s m

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Michael F. Barry President and Dean, South Texas College of Law Houston

aw schools, as a matter of course, educate students about professional identity and an attorney’s ethical responsibilities. For law students and practicing attorneys alike, however, these principles and codes often can seem abstract.

When I speak with law students, therefore, I try to ground professionalism— and our professional duties—in fundamental statements of character and integrity. Who are their role models? What values and principles matter to them?

To demonstrate, I reference a few of my role models: My father, a military attorney and judge, who risked his military career when he challenged the status quo. And the first judge for whom I clerked (and a former civil division chief), who reminded government attorneys of their duty to pursue justice, not a conviction rate. From them I learned an attorney’s responsibility to ensure that our system remains fair, impartial, and just—despite the personal cost.

I then discuss several of my guiding principles; I’ll mention two here. My faith tells me that God created humanity in his image. As such, I conclude that everyone—from clients to opposing counsel, and regardless of race, creed, gender, sexual orientation, or economic status—is entitled to dignity and to respect.

In addition, I believe that to whom much is given, much will be required. I appreciate— and am humbled by—the opportunities I have enjoyed, and I am cognizant that many others have trod significantly more challenging roads. I therefore attempt to be tireless in my work and to place my talents and resources in service to others.

And here is how I conclude: We have our own role models, as well as a panoply of fundamental principles culled from various sources. There is value in reflecting on which of those people and principles really matter to us —and how they shape our professional life as a practicing attorney.

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COMMITTEE SPOTLIGHT

A Quarter Century and Counting:

Celebrating the 25-Year Partnership Between the HBA and Houston Habitat for Humanity

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The Houston Lawyer

By Scott Van Meter

our members were giving back to the community in a different he Houston Bar Association’s twenty-five-year way that reflected well on the legal community.” partnership with Houston Habitat for Humanity In the beginning, the financial commitment to sponsor a started in 1998 as part of the Jimmy Carter Work home was a lot less than today. The HBA raised $45,000 for that Project Houston,” recalled HBA Past President first house. Contrast that to $70,000 and dedicated Houston per house today.

Habitat volunteer Tommy Proctor.

My personal involvement with Participating organizations built 100 Houston Habitat started in the early homes that year, including three or 2000s and continues to this day, four houses individually sponsored most recently as co-chair of the HBA’s by the HBA and several Houston Habitat for Humanity Committee and law firms. “It was something to see,” as a CORE Volunteer with Houston Tommy shared with me. “A street Habitat. When I first started, the role lined with houses being built with of volunteer was a lot different than beehive-like activity by lawyers lawhat it’s like today. Back then, volunboring in one hundred degree plus heat, both doing good work and hav- A (much) younger Scott Van Meter and daughters enjoying teers did everything from raising the a lunch break in 2006. Scott’s daughters, along with his walls to putting the roof on and even ing fun.” wife Ruth, decided it would be fun to have a picnic at the installing drywall and fixtures. We After the success of the Jimmy jobsite of one of his early build days. brought our own tools and did whatCarter Work Project, Tommy “felt ever needed to be done. this is really something [the HBA] Today, the volunteer experience is should be a part of” and was one of much more structured, with a greater the early advocates for an ongoing focus on safety. The day starts with a partnership between the HBA and safety briefing, including instructions Houston Habitat. To that end, he on the proper use of ladders, lifting worked over the years alongside HBA heavy loads, and demonstrating how leadership to secure continued supto safely use the power tools. Volunport for the partnership. teers are encouraged to use all the Of course, 25 years later, one would available tools, including the Ramset think supporting Houston Habitat Volunteers installing windows and the roof of this HBAshould have been obvious. At the sponsored house in 2006. Notice the volunteers working for attaching the frame into the contime, however, there were some who on top of the trusses—no safety braces or anything else crete foundation and the fan-favorite between them and the ground. It was truly the Wild, Wild suggested our service to the commu- West of construction back then; the primary rule was to be nail gun.

There is also a focus on giving volnity should be as lawyers, not home- careful and not get hurt. unteers a sense of satisfaction in helping others become homebuilders. Tommy recounted, “It was once said that anyone can owners. And we often hear from family partners, describing paint a house, but only lawyers can provide legal services.” what Houston Habitat means to them and their families. The While he agreed legal services should be the HBA’s primary motto of Houston Habitat is to provide a hand up, not a handvolunteer focus, he emphasized that “with Houston Habitat, 42 July/August 2023

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COMMITTEE SPOTLIGHT

out. Volunteers learn that family partners must be employed and invest hundreds of hours in sweat equity, working to build someone else’s home, before qualifying for their own home.

builds character, strength, relationships, leadership and community.” Benny also believes in leadership through service: “We want our Houston lawyers to lead and become strong members of our community. We accomplish that by serving our clients well, but also by serving our community.”

What makes all the work so meaningful to me is the impact it has on the individuals whose lives have been dramatically changed by the process. It’s hard to keep a dry eye at the home dedications, especially hearing the heartfelt thanks of the new homeowners. Benny added, “Many times, we never see the fruits of our efforts, but with our work through Habitat for Humanity, we know and see that the new home we work on will immediately help a family. When you help move a family into their new Habitat home, you see the tears of joy in their eyes, and it is then that you are assured that service to the community through Habitat is not only helping others—it is building yourself up to be a stronger, better person.”

A group of HBA volunteers, including HBA Past President Benny Agosto, Jr. (pictured far right) in 2022.

Family partners also receive instructions on financial planning, basic home maintenance, and other life skills designed to help ensure their success at home ownership. And contrary to a common misconception, the house is not free; family partners take on a 20-year zero interest mortgage for the cost of the house not paid by the sponsorship funds.

HBA Past President and current co-chair of the HBA Habitat for Humanity Committee, Benny Agosto, Jr., sumed up the importance of the Houston Habitat partnership: “The HBA/Habitat for Humanity not only builds homes,” he shared, “it also

HBA Past President and 2023-2024 HBA Habitat for Humanity Committee Co-Chair Benny Agosto, Jr. and HBA Executive Director Mindy Davidson (fourth and third in from the R) commemorated the dedication of the HBA’s 23rd Habitat for Humanity House on March 20, 2023, generously sponsored by the HBAA (HBAA Past President Kelly Greenwood Prather pictured first to the L). The event welcomed Tatiana P. (sixth in from the L) and her 5-year-old son to their new home. Also pictured is Le Hammer (second to R), 2022-2023 committee co-chair.

The partnership with Houston Habitat remains strong today. We have started raising the funds to build our 26th home with construction beginning in the spring of 2024. Please consider making a donation to this wonderful cause and come out to help us make a difference in somebody’s life. Donate any amount at houstonhabitat.org/hba. Follow the work of the committee at hba.org/habitat.

HBA Past President Bill Kroger and HBA Executive Director Mindy Davidson (fourth and fifth from the L) joined Zipora (third from the R) and her family to welcome the family to their new home on June 27, 2023.

This was the HBA’s 24th Habitat for Humanity House. The dedication ceremony was generously sponsored by the Houston Bar Association Auxiliary (HBAA). (HBAA President deborah lawson pictured left of Bill Kroger, next to Bonnie Simmons, HBA director of projects and events.)

Scott Van Meter is managing director of B. Riley Advisory Services. He has over 30 years of diverse professional experience in bankruptcy and restructuring, litigation consulting, valuation, forensic and investigative accounting, law, and management. Scott was the 2022-2023 co-chair for the HBA Habitat for Humanity Committee. thehoustonlawyer.com

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Section Spotlight

Appellate Practice Section:

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Connecting the Bench, Bar, and Community

The Houston Lawyer

By Jillian Schumacher

he Houston Bar Association’s Appellate Practice Secabout courts and judges. Accordingly, the section often invites tion fosters professionalism, collegiality, and exceltrial and appellate judges to speak to the group. lence by offering its membership regular continuing On July 20, Jeff Oldham, partner at Bracewell and HBA board legal education opportunities, networking opportumember, and Judge Andrew S. Oldham of the U.S. Court of Apnities, and professional scholarship opportunities peals for the Fifth Circuit co-presented “A Conversation with through its monthly luncheons, Fifth Circuit Judge Andy Oldregular social events, and leham.” Judge Oldham described gal scholarship publication, himself as a long-time Astros Appellate Lawyer. The section fan who strongly prefers verbal has many goals. It benefits the conversation to email. Beyond community by administering a introducing Judge Oldham perprogram offering pro bono assonally, Jeff Oldham asked Judge sistance on appeals, providing Oldham questions ranging from scholarships to court attorneys his thoughts on how often the to attend continuing legal eduFifth Circuit should certify cation programs, and hosting a questions to the Supreme Court writing scholarship competition of Texas, to elements of effective for local law students. And it briefing. Judge Oldham spoke benefits its members by facilitat- The Hon. Andrew Oldham (left) and Jeff Oldham (right) present to the about his experience on the ing a professional community Appellate Practice Section.

Fifth Circuit, including pragand bringing that community presentations on educational matic aspects of his routine, like how he manages his chambers topics of interest. and the types of issues that are important to him when he preThe section’s monthly luncheon provides an opportunity for pares for oral argument and decides cases. Judge Oldham noted practitioners to network while engaging in continuing legal that judges are under high pressure to ensure any new rule of education. The section serves both the local bar and bench by law announced in a particular case makes sense in all contexts, featuring topics of mutual interest. The topics of discussion in whereas practitioners tend to have a narrower focus. the past year have ranged from attacks on the independence The section and the Houston appellate community take parof the judiciary to updates for the newest edition of Texas Patticular pride in their welcoming and collegial nature. The memtern Jury Charges. While the presentation topics are particularly bership is committed to maintaining strong collegiality through relevant to appellate lawyers, as appellate issues often naturally regular engagement among the members of the bar and bench. relate to topics of interest to lawyers practicing in other speUseful and informative, Judge Oldham’s remarks about the paracialties, many non-appellate lawyers also frequent the section’s digm and concerns of the bench fit into the section’s goals of promonthly luncheon. viding meaningful educational content to its membership.

The section’s luncheon presentations almost always lead to a discussion among practitioners. In the past year, the presentaJillian Schumacher is an appellate lawyer at Daniels & tions have spurred conversations ranging from how changes in Tredennick PLLC. She is board certified in civil appellate law the practice of requesting motions to extend time might imand the current chair of the Houston Bar Association’s Appellate pact collegiality in the appellate bar, to brainstorming ways to Practice Section. Before entering private practice, Jillian served as help defend the judiciary from improper attacks on its indepena staff attorney to Chief Justice Kem Thompson Frost (Ret.) on the dence. The presentations also focus on educating practitioners Fourteenth Court of Appeals.

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Media Reviews

The Words That Made Us: America’s Constitutional Conversation, 1760–1840

By Akhil Reed Amar Published by Basic Books Reviewed by Ryan Kent

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n his latest scholarly work on America’s constitutional origins, Professor Akhil Reed Amar’s The Words That Made Us: America’s Constitutional Conversation, 1760–1840 transports the reader back to the late seventeenth and early eighteenth centuries for a panoramic view of the personalities, inflection points, and debates that gave rise to the United States. As accounts of early American history go, the book is a masterpiece: meticulous research, illuminating backstories behind the seminal events from the Founding Era, countless factoids and historical asides that add to, rather than detract from, an already-familiar narrative, and lively (if occasionally overwrought) prose that keeps the pages—all 700 of them—turning.

Another selling point for The Words That Made Us is its thoughtful organization. While it is natural enough to proceed chronologically, Professor Amar groups the book’s 13 chapters into three distinct parts: Revolution, Constitution, and Consolidation. The lattermost section—the book’s lengthiest, covering Washington’s presidency through Jackson’s— spotlights the usual characters from the period, as well as their many debates on issues that, in the wake of the Constitution’s adoption, remained far from settled. While Amar does, at times, appear to carom from one early constitutional dispute to another (Is the president empowered to fire department heads at will? Should the Direct Tax Clause be read expansively or narrowly, as the Supreme Court later held in Hylton v. United States?), he deftly ties these disputes to the leading American statesmen that are the focus of each chapter.

Just as these statesmen reappear throughout the narrative, so too does the Constitution’s text, and this perhaps distinguishes The Words That Made Us from so many other histories of the Founding. Amid the discussion of Hylton v. United States, for instance, we learn

that the Direct Tax Clause “was in part a fig leaf to distract popular attention from the proslavery bias of the Three-Fifths Clause,” a connection easy to overlook so far removed from the time period and the concerns and motivations of its people. The Words That Made Us is densely packed with these “a-ha moments”— from the Adams–Jefferson–Madison chapter alone: but for the Three-Fifths Clause, Adams would have won reelection in 1800; the Sedition Act excluded the vice president from its reach, thus making criticism of Adams’s chief rival, Jefferson, “fair game under the law”— and so, even if an anecdote or observation already is known to the reader, they are sure to come across a new insight after reading only a little further.

All in all, The Words That Made Us marks a fine addition to the canon of Founding Era histories, one that builds upon the author’s earlier, less-accessible works exploring the United States’ constitutional underpinnings (e.g., America’s Constitution: A Biography, published in 2005 and, not incidentally, also worth a read). While it takes some commitment to get through the whole tome—and, at times, closer attention to detail than a casual reader may be prepared to invest—Professor Amar’s quite capable storytelling helps to overcome these occasional headwinds.

Ryan Kent is an assistant district attorney at the Harris County District Attorney’s Office.

Mere Natural Law: Originalism and the Anchoring Truths of the Constitution

By Hadley Arkes Published by Regnery Gateway Reviewed by Trevor Kehrer

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n Mere Natural Law, Professor Hadley Arkes masterfully distills decades of teaching and scholarship about natural law: those “moral truths” that are “applicable to all men and all times.”1 Invoking canonical

Supreme Court cases and such renowned thinkers as Aristotle, Cicero, Lincoln, Locke, and James Wilson, Professor Arkes forcefully argues that our government and laws rest on a foundation of natural law, even if we hardly know it. He also explains how judges, lawyers, and policymakers have strayed from what the common person would understand as just or justified—and how to return a sense of moral coherence to American jurisprudence.

For those who have had the pleasure to meet Professor Arkes and experience his razor-sharp wit and irrepressible humor, there are many familiar passages in this volume.

However, the book is not intended primarily for an audience with knowledge of Professor Arkes’ work or the law. Instead, Mere Natural Law takes its cue from C. S. Lewis’ Mere Christianity, setting out complex concepts in terms that the proverbial man on the street could understand. And for lawyers, Mere Natural Law invites us to recover a more classical understanding of how to argue that laws and rights are justified.

In doing so, Mere Natural Law faults prevailing orthodoxies on both sides of the political aisle as being mere “chapters in the same book”: progressives have sought “a liberation not to be stifled or cabined by cramped moral restraints,” and conservative originalists have pursued a view of law that is “radically detached from the moral sentiments and convictions of judges.”2 But despite this criticism of originalists and the book jacket’s tagline that “originalism is not enough,” Professor Arkes casts himself as an “original originalist.”3 His criticism of Justice Oliver Wendell Holmes, Jr. and the decisions of the Warren Court suggests that originalists ought not abandon their beliefs, but rather should embrace the form of judging that was more common before the 20th century. So, the thrust of the book is not to present a replacement for originalism, but instead to argue that originalists can do better if they recognize natural law’s place in our law.

And indeed, some originalists have done so. In response to similar criticisms of originalism and textualism, Professor William Baude noted during this year’s Scalia Lecture at Harvard Law School that lawyers and judges ought to “consider natural law” and acknowledge it as “a backdrop of our legal tradition.”4 Talk about thehoustonlawyer.com

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LEGAL TRENDS

Media Reviews

making “fetch” happen.5 Mere Natural Law is a fun and easy read, and it will be interesting to the thoughtful, seasoned practitioner and the curious young lawyer alike. But it does not always grapple with questions that might naturally spring to mind. For instance: If “terms of insult or denigration that carry a sting and elicit outrage from the targets” are not protected speech, how should we think about the growing community of people who take sincere, deeply-felt offense at the expression that sex is binary or gender is immutable?6 And if a religious belief must be true—or at least “arguably truer than the others”—to receive First Amendment protections, doesn’t such a narrow Overton window invite exactly the kind of sectarian strife the First Amendment was designed to permanently foreclose?7 There are countless other possible questions one could ask. But that is, in large part, the point: Mere Natural Law is intended to provoke those questions so that we as lawyers, historians, and citizens can do the work to arrive at satisfactory answers.

Mere Natural Law encourages the layman and the lawyer alike to awaken a long-dormant mode of thinking and realize that natural law “has never been missing,” but rather “has always been with us.” 8 And in this respect, Mere Natural Law excels..

Trevor Kehrer is a litigator living in Houston.

He clerked for the Honorable Jonathan A. Kobes of the U.S. Court of Appeals for the Eighth Circuit during the 2020-2021 term and was a 2021 James Wilson Fellow.

The Houston Lawyer

Endnotes

1. HADLEY ARKES, MERE NATURAL LAW 7 (2023).

2. Id. at 9, 11, 14.

3. Id. at 17.

4. William Baude, Harry Kalven, Jr. Professor of Law, University of Chicago Law School, Address at the Harvard Law School Scalia Lecture: Beyond Textualism? 12 (Feb. 27, 2023) (transcript available on SSRN) 5. MEAN GIRLS (Paramount Pictures 2004) (“Gretchen, stop trying to make ‘fetch’ happen. It’s not going to happen”).

6. Arkes, supra note 1, at 129.

7. Id. at 189; JOSEPH STORY, 2 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 606-09 (4th ed. 1873).

8. Arkes, supra note 1, at 3.

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“Clear and Unmistakable”: The Supreme Court of Texas Joins Other Courts in Honoring the Incorporation of AAA Rules

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By Lane Morrison

n April 2023, the Supreme Court of Texas continued its expansive support for enforcing arbitration agreements and joined other jurisdictions in holding that parties’ incorporation of the American Arbitration Association (“AAA”) Commercial Rules into their agreements is a “clear and unmistakable” delegation of authority of arbitrability determinations to the arbitrator.

In TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC, 667 S.W.3d 694 (Tex. 2023), reh’g denied (June 9, 2023), the court reviewed a dispute between co-owners of a group of oil and gas leases in the Gulf of Mexico. MP Gulf of Mexico, LLC (“MP Gulf”) (the 2/3rds owner) claimed that TotalEnergies E&P USA, Inc. (“Total E&P”) (1/3rd owner) owed it $41 million arising out of MP Gulf’s reentry of a previously shut-in well in which Total E&P chose not to participate. The parties disputed which of their three contracts governed the dispute: (1) the Cost Sharing Agreement, which required controversies to be resolved in the Harris County District Courts; (2) the Chinook Operating Agreement, which required controversies to be resolved by arbitration before the International Institute; or (3) the System Operating Agreement, which required controver-

sies to be resolved in accordance with the AAA Commercial Rules. The question before the court was not whether Total E&P owed MP Gulf $41 million or whether that controversy must be resolved through arbitration; instead, it was who must decide (a court or an arbitrator) whether the controversy should be resolved through arbitration. In the end, the court held that because the parties incorporated the AAA Commercial Rules into one of the potentially applicable contracts, there was a “clear and unmistakable” delegation of that decision to an arbitrator.

The court first recounted the general rule: that “parties can agree that arbitrators, rather than courts, must resolve disputes over the validity and scope of their arbitration agreement.” But courts should only enforce an agreement to delegate arbitrability to the arbitrator—having the arbitrator and not the court decide initial questions of the validity and scope of the arbitration agreement—if that agreement is “clear and unmistakable.”

Though none of the parties’ agreements expressly delegated arbitrability decisions to the arbitrator, in the System Operating Agreement, the parties agreed to arbitrate their controversies “in accordance with the rules of the AAA” and using “procedures... in accordance with the Commercial Rules of the AAA.” Rule 7(a) of those rules provides that the arbitrator “shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” Though Texas courts of appeal had previously split on the question, the court joined “the vast majority of courts” holding that, in general, “an agreement to arbitrate in accordance with the AAA or similar rules constitutes a clear and unmistakable agreement that the arbitrator must decide whether the parties’ disputes must be resolved through arbitration.”

The court’s reasoning rested in a plain-

LEGAL TRENDS

language analysis of the incorporated AAA or unaffected. First, as the court pointed Commercial Rule 7(a). The rule mandated out, AAA Commercial Rule 7(a) has been that the arbitrator “shall have the power” amended since the at-issue agreement to decide arbitrability issues. Adopting the to add language that the arbitrator shall recent reasoning of the Florida Supreme have the power to decide arbitrability isCourt on this topic, the court determined sues “without any need to refer such matthat “the power to decide is the power to ters first to a court.” The dissent believed decide”—that is, the rule’s delegation of this “confirmed” that the then-existing “the” power meant that it delegated to the rule granted arbitrators power to decide arbitrator the exclusive power arbitrability issues “that to decide whether particumay arise during an arbilar claims are arbitrable. The tration.” But the court did court went on to reject the arnot opine as to the effect of In April 2023, gument that it should first dethat amendment, which has the Supreme Court no doubt been incorporated cide whether the parties’ dispute fell within the scope of of Texas joined... into contracts since. Second, the AAA Rules incorporating other jurisdictions the court’s opinion was limagreement because the parties ited to the AAA Commercial in holding had carved out certain claims Rules—the scope of arbitrathat parties’ bility delegations in agreefrom its scope: “Any limitaincorporation of ments incorporating other tion contained within these parties’ arbitration agreement the American private arbitration rules may does not affect the agreement’s Arbitration vary according to the lanclear and unmistakable deleguage of those rules. And Association gation of arbitrability issues to finally, the opinion leaves (“AAA”) Commer- with the courts (as always) the arbitrator.” “[H]olding that rule 7(a) only applies if a court cial Rules into their the initial determination as first determines that the claim agreements is a to whether a valid arbitrais subject to the arbitration tion agreement exists in the ‘clear and first place. agreement would render the unmistakable’ Given the scope of the rule essentially meaningless” delegation of court’s opinion and the and would conflate the questions of (1) “the scope of the authority of ubiquity of the incorporaarbitration provision (what it arbitrability tion of the AAA Commerincludes and carves out)” and cial Rules (and other private determinations to (2) the “delegation provision rules) in arbitration agreethe arbitrator.” ments, practitioners should (who decides the scope of the arbitration provision).” Because be aware of TotalEnergies the parties’ agreement “clearly and unmisand similar cases that are likely to follow takably” delegated the power to decide the when crafting arbitration agreements in scope of the arbitration agreement to the commercial contracts. arbitrator, it was not for the court to determine that scope.

Lane Morrison is a litigation associate at Though TotalEnergies answers that inBush Seyferth PLLC. He focuses his practice corporation of the AAA Commercial Rules on product liability and class action defense that existed at the time of the formation and is heavily involved in drafting and of those parties’ agreement delegates arbiarguing critical trial motions and appeals. trability determinations to the arbitrator, He is the Committee/Section Spotlight editor it leaves other related issues unresolved for The Houston Lawyer.

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