Reading, Writing and the Rule of Law A Second Chance: HBA, UH Law Center Team Up to Seal Juvenile Records What Do DREAMers Dream Of? Problems and Legal Protections for Homeless Youth Do’s and Don’ts of the Guardian Ad Litem in Civil Courts Houston Bar Foundation Celebrates 35 Years of Service
Volume 54 – Number 5
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contents Volume 54 Number 5
FEATURES Writing and 10 Reading, the Rule of Law By Tara Shockley
Chance: HBA, 16 AUHSecond Law Center Team Up to Seal Juvenile Records
By The Hon. Michael Schneider, Brian Fischer and Katya Dow
Do DREAMers Dream Of? 18 What By Mariame Aana
and Legal Protections 24 Problems for Homeless Youth By Al Amado and Bruce Steffler
and Don’ts of the Guardian 28 Do’s Ad Litem in Civil Courts By The HON. Scott Link
Bar Foundation 32 Houston Celebrates 35 Years of Service John J. Eikenburg Law Week 34 32nd Fun Run Benefits The Center
The Houston Lawyer
Cover: Artwork by Consuelo Gaona and Zechariah Cochran of Bellaire High School, first place winners of the HBA Law Day Team Poster Contest. The artists are special needs students from the Skills for Learning and Living class of Bellaire High School teacher, Michael Rideaux.
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: firstname.lastname@example.org Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.
contents Volume 54 Number 5
departments Message 6 President’s Community Groups Work Together
to Benefit Juveniles By Neil D. Kelly
the Editor 8 From Crime, Judgement, and
Juvenile Justice By Jill Yaziji
Lawyers Who 36 Houston Made a Difference
Hon. Thomas J. Stovall, Jr. By The Hon. Mark Davidson
the record 37 off Brian Fischer: Woodworker
By Erma Bonadero Spotlight 38 Committee Committee Promotes Literacy &
Reading Initiatives By Lara Price
in professionalism 39 ATheProfile Hon. Ravi K. Sandill Judge, 127th District Court Trends 40 Legal SCOTX Finds no Governmental
Immunity where Government Received a Benefit By Raymond L. Panneton
SpongeBob’s “Krusty Krab” Restaurant Worthy of Trademark Protection By Craig Stone and Maryann Zaki
Ethical Obligations Extend to “Hidden” Data By Cassie McGarvey ReviewS 42 Media Child Abuse and Neglect Cases:
A Comprehensive Guide to Understanding the System Reviewed by Anietie Akpan
The Houston Lawyer
When Big Law Goes Wrong Reviewed by Kimberly A. Chojnacki
44 Litigation MarketPlace 4
By Neil D. Kelly Andrews Kurth LLP
Community Groups Work Together to Benefit Juveniles
The Houston Lawyer
ike me, most reading this President’s Message managed youth to succeed. to get through their juvenile years without significant In furtherance of its community education and access to justice interactions with law enforcement. That does not mean initiatives, the Houston Bar Association has participated for 10 we did not make unwise decisions; only that we did not years in the Juvenile Consequences Partnership. The program is a have to face the justice system for the conpartnership of the HBA, the Harris County Probation sequences of our actions. Now as lawyers we work to Department, the Harris County District Attorney’s State fulfill our professional obligations to our clients to Office, and the Houston Police Department. Once a and local resolve their problems. And for those of us who are month, each partner organization speaks to youths organizations parents, we have the labor of love trying to raise our and their parents about their role in the juvenile juschildren. tice system. The goal of the program is to keep youth are working With a job fixing other people’s problems and the out of the system through an increased understanding to tackle the complex task of raising children, it is difficult for indiof the juvenile justice system and its consequences. It challenges vidual lawyers to find the time and energy to address appears to be working—county statistics put the rethe legal challenges facing other people’s children. But cidivism rate at only 10-14%. of the we cannot continue to ignore those challenges, which Related to the Juvenile Consequences Partnership juvenile as the Juvenile Law Center reported in its 2016 study is the HBA’s Juvenile Records Sealing Project initiated “Debtor’s Prison for Kids? The High Cost of Fines and by Judge Michael Schneider and Brian Fischer, who justice Fees in the Juvenile Justice System,” can perpetuate provided an article for this edition. As explained more system. inequality and poverty and exacerbate racial and ecoin their article, the Sealing Project gives juveniles connomic disparities in the juvenile justice system resulting from fivicted of minor, non-violent offenses that successfully completed nancial obligations imposed by juvenile adjudications. diversion programs a second chance by providing them with legal Fortunately, in Texas we have several organizations and commitrepresentation to utilize Texas statutes that allow juvenile records ted judges and staff that have methodically tackled those challenges. to be sealed. Among its many noteworthy projects, Texas Appleseed, a public inI have done several juvenile sealings, and answered calls from terest justice center dedicated to changing unjust laws and policies, parents worried that their children’s mistakes would follow them has worked to reform Texas laws on juvenile detention in an effort into adulthood and limit their ability to go to college or obtain jobs. to decrease recidivism and allow kids to continue to have a conWhen I call to tell them that the sealing order was signed, the worry nection to their communities. Texas Appleseed also supports staff turns to optimism and relief that the juvenile justice system can training and the implementation of evidence-based rehabilitative achieve better outcomes. And as with all pro bono matters, the strategies instead of isolation and conferment in juvenile facilities. value of the few attorney hours it takes to complete the sealing is Texans Care for Children strives to better the lives of all Texas dwarfed by the value of the sealing order to their lives. Judge Schneichildren by building commitment and action for improved public der and Brian Fischer deserve credit—and our great thanks—for policy and programs, focusing on five areas: child and maternal creating the program. health, child protection, child mental wellbeing, juvenile justice, We should also thank the co-chairs and committee members of and family financial security. In addition to robust legislative efthe other HBA committees who work to improve the lives of our forts, Texans Care hosts a Juvenile Justice Roundtable along with communities’ youth. The committees tackle hard issues and, like the Juvenile Law Section of the State Bar of Texas. The mission of the Juvenile Law Center, Texas Appleseed, Texans Care for Chilthe roundtable is to create an effective juvenile justice system that dren, and other organizations, strive to make a meaningful differpractices prevention and rehabilitation and offers opportunities for ence through informed action.
from the editor
By Jill Yaziji Yaziji Law Firm
Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson LeClairRyan
Farrah Martinez Attorney at Law
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Work Law Firm
Crime, Judgement, and Juvenile Justice
his issue of The Houston Lawyer focuses on juvenile justice, or the law applicable to persons deemed too young to be held responsible for their illegal (sometimes criminal) acts. Hence, this issue presents several important contexts in which attorneys have and continue to help protect the interests of juveniles who encounter the justice system either as defendants, or as plaintiffs. We open this issue with Tara Shockley’s article, Reading, Writing, and the Rule of Law, which provides a historical viewpoint of the origins and evolution of HBA programs that teach the youth about the law and the legal system from early school years onward. Programs such as Juvenile Justice Mock Trial and Interprofessional Drug Education Alliance, all taught by HBA volunteers, engage Houston’s youth regarding the paramount importance of the legal system, and the ramifications of their social conduct so they can better understand and avoid certain consequences. But when these consequences are lost on some of the youth who become defendants entangled in the legal system, there is often a second chance. A 17-year old in Texas cannot legally buy beer, nor vote. But he or she can go to jail for criminal acts because a 17-year old is considered an “adult” for purposes of criminal liability. But what happens when a 15-year old is arrested for selling drugs or for a crime involving moral turpitude? Can he or she still achieve the dream of being a teacher or work in finance despite the criminal record? In Second Chance, Judge Michael Schneider, along with Brian Fischer and Katya Dow, discusses the very important project of sealing juvenile records of those who are eligible, so the offense does not stigmatize the rest of the child’s life. The program focuses on children who receive deferred adjudication, or participate in Divert thehoustonlawyer.com
90 and Divert 180 programs, and who agree to attend an HBA Juvenile Consequences Program, and applies only to non-violent crimes. If such juveniles avail themselves of this program, their prior criminal record is wiped clean, giving them a valuable second chance. The next three articles discuss some of the laws that are designed to protect the youth. In What Do DREAMers Dream Of?, Mariame Aana discusses DACA, the legal protection program that affords undocumented immigrants deferred immigration adjudication if they meet certain conditions. The article describes DACA’s impact on the lives of those who dream of becoming legal residents (although that is beyond DACA’s mandate, per se) who enroll in school and maintain a clean criminal profile. In Problems and Legal Protection for Homeless Youth, Al Amado and Bruce Steffler shed light on the unique challenges that homeless kids, unaccompanied by adults, experience. The authors describe the plight of the more-than-1-million children in the U.S. who face despair and deprivation because they do not or cannot access the social network of support for fear of being pulled into the foster care system due to being minors. The article discusses steps to having the disability of being a minor removed so they can make legal decisions for themselves. Finally, Judge Scott Link discusses the Do’s and Don’ts of the Guardian Ad Litem in Civil Courts. The article is a summary of the legal and ethical best practices for an ad-litem who undertakes the representation of a minor child, usually for the purpose of protecting the minor’s interest in settlement proceeds. The importance of youth cannot be overstated, and this issue of The Houston Lawyer illustrates how to rehabilitate, rather than punish, and how to secure the rights of those juveniles who willfully invoke the protections of our court system.
BOARD OF DIRECTORS President
Neil D. Kelly
Warren W. Harris
Alistair B. Dawson
First Vice President
Benny Agosto, Jr. Second Vice President
Jennifer A. Hasley Hon. Erin Lunceford
Richard Burleson Diana Gomez
Daniella Landers Chris Popov
DIRECTORS (2016-2018) David Harrell Greg Ulmer
editorial staff Editor in Chief
Jill Yaziji Associate Editors
Polly Fohn Farrah Martinez Hon. Jeff Work
Preston Hutson Taunya Painter Editorial Board
Benny Agosto, Jr. Anna Archer Paul Bowers Heaven Chee Jonathan C. C. Day Jason D. Goff Al Harrison Jennifer R. Jenkins Hon. Scott Reiter Link Marni Otjen Hon. Josefina M. Rendon David Stockel Zach Wolfe
Anietie Akpan Erma Bonadero Christiane (C.J.) Chambers Kimberly A. Chojnacki Angela L. Dixon Amy Hargis Matthew Heberlein Sophia L. Lauricella Jeff Oldham Raymond Panneton Kate Shih Matthew D. Walker
HBA office staff Executive Director
Kay Sim Director of Education
Director of Projects
Continuing Legal Education Assistant
Ashley G. Steininger
Communications Assistant /Web Manager
Membership and Technology Services Director
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12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
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By Tara Shockley
Reading, Writing and the Rule of Law
wo decades ago, the Houston Bar Association held a forum for community leaders and asked the question, “What is the most important issue facing our communities?” The answer was unanimous: the care, education and nurturing of our children and youth. With that mandate, the HBA developed a number of programs to teach youth from elementary school through high school about the law and the legal system. HBA programs touched more than 39,000 students during the last bar year, through activities ranging from reading law-related books to elementary students, to in-depth discussions on our system of government with high school students. The HBA’s goal is not only to educate children and teens about the law, but to give them positive experiences with the legal profession and to keep them from entering the system in a negative way. Making all of these programs possible is the dedication of hundreds of HBA members who volunteer their time and talent so children and teens can learn how laws affect their daily lives.1
HBA PROGRAMS FOR ELEMENTARY SCHOOL STUDENTS Elementary School Reading Programs Twice each year, HBA members read to elementary school students in over 100 classrooms in schools throughout Harris County, using age-appropriate stories to teach them basic lessons about the law. In commemoration of Constitution Day, September 17, HBA volunteers reach nearly 9,000 first through third graders, helping them understand the importance of our nation’s founding documents. A new book is chosen each year based on a different Constitutional theme or issue. In 2016, volunteers read the book So You Want to Be President, to teach children about the presidential elecCole Conkling reads to students at HISD’s Harvard Helene Dang with students from HISD’s Harvard tion process going on at that time. Elementary School on Constitution Day. Elementary School. In May of each year, HBA members celebrate Law Day, May 1, by reading a book that illustrates the current Law
Educating Young People a Priority in HBA Community Service
Day theme. This year, lawyer volunteers will read Granddaddy’s Turn: A Journey to the Ballot Box, highlighting the 2017 Law Day theme, “The 14th Amendment: Transforming American Democracy.” Attorneys not only read the books, but also engage children in conversation about the stories and answer their questions. After reading, the volunteers donate the books to each school’s library so that children can continue to enjoy the stories that HBA President Neil Kelly and Dr. Louis Gilbert give an IDEA presentation to 5th graders at Atkinson bring complicated laws to life. Elementary School in Pasadena ISD.
Interprofessional Drug Education Alliance (IDEA) In partnership with Harris County medical professionals, this HBA program teaches fifth graders about the consequences of drug and alcohol abuse on their minds, bodies and futures. Teams of a lawyer and medical professional visit classrooms in school districts throughout Harris County to talk about both the legal and medical issues that young people can suffer if they make bad decisions. The program’s focus is on children just before they reach middle school and the teen years, when peer pressure can be even more overwhelming. In this interactive presentation, medical professionals talk about how drugs, alcohol, tobacco and even caffeine can damage a young person’s body and keep their minds from developing at full potential, while lawyers discuss the realities of entering the juvenile justice system. The teams often bring props— damaged lungs and livers, courtesy of Houston’s Health Museum, for the medical professionals, and handcuffs and juvenile detention jumpsuits for the lawyers. The team members emphasize how substances can affect a young person’s ability to play sports, make good grades and even get a driver’s license as a teen, a point that always seems to hit home. Students are encouraged to ask questions and share their thoughts, particularly on ways to combat peer pressure. Established in 1992 and provided in both the fall and spring to school districts throughout Harris County, the IDEA program reaches over 2,500 students each year.
Students from Beatrice Mayes Charter School with teachers, law students and HBA staffers after their mock trial at the Harris County Civil Courthouse.
Justice Brett Busby and Warren Harris present the Teach Texas program at KIPP Academy.
Trial Program was developed in 1975 by Kay Sim, the longtime executive director of the Association. It continues to be one of the most successful HBA programs, reaching more than 42,000 eighth-grade students over four decades. Working with HBA staff and law students from all three Houston law schools, the program teaches young teens about the judicial process through a five-week classroom program, topped off by a visit to a Harris County courthouse to enact their mock trial in a real courtroom. The students develop and prepare a mock trial based on an age-appropriate crime scenario and assume all the roles of judge, prosecutors, defense attorneys, court staff, defendant, witnesses and jurors. The support of the Harris County judiciary has been an integral part of the program’s success, with judges allowing the use of their courtrooms on a Friday morning for four sessions each year. The judges often allow their student counterparts to wear their robes, and sometimes visit the students before or after the trial to answer questions. Because of the longevity of this program, a number of students who have participated in the Mock Trial Program as eighth graders have returned to work with the program as law students, and several law students went on to become Harris County judges, including Judge Sheri Dean of the 309th District Court, Judge Susan Brown of the 185th District Court, Judge Brad Hart of the 230th District Court, Judge Lisa Millard of the 310th District Court, and retired family court Judge Bonnie Hellums.
Teach Texas Teach Texas is a program for students in seventh grade Texas history classes. It is based on Taming Texas: How Law and Judge Robert Schaffer hosted students for a mock Order Came to The Lone Star State, a book trial during the Communities in Schools Houston published by the Texas Supreme Court Summer Legal Internship Program. Historical Society. The program shows how the state’s court system fits into the HBA PROGRAMS FOR MIDDLE larger picture of Texas history, examinSCHOOL STUDENTS ing its roots, heroes, growing pains and Juvenile Justice Mock Trial Program milestones, from the days of early Spanish One of the oldest HBA community service colonization to the present. It introduces projects, the HBA’s Juvenile Justice Mock thehoustonlawyer.com
students to the structure and operation of the Texas court system through an interactive program combining colorful stories from history with hands-on classroom activities led by teams of judges and attorneys.2 HBA PROGRAMS FOR HIGH SCHOOL STUDENTS Communities in Schools The HBA is a sponsor of the Summer Legal Internship program of CIS Houston, a non-profit organization that supports at-risk youth. The program provides an opportunity for bright high school seniors in at-risk schools or environments to participate in an eight-week program at Houston law firms, corporations and governmental agencies. The students benefit from paid summer employment, mentoring and other enrichment activities such as mock trials and speakers. Several CIS students have gone on to find permanent employment at law firms after their internships.
HAY Center Project Since 2010, the HBA has worked with the Houston Alumni and Youth (HAY) Center, a non-profit agency that offers transition resources, services and support for older youth as they prepare for a future outside of the Harris County Protective Services Foster Care system. Events sponsored with the HAY Center provide the opportunity for teens from The HBA’s HAY Center Committee readies the jewelry section for youth in foster care to “shop” for difficult situations to interact with law- their proms. yers and know that these professionals care about their well-being and their futures. The HBA HAY Center Committee assists with the Preparation for Adult Living (PAL) program by speaking on topics such as renter’s rights, juvenile law and family law, as well as helping with mock interviews to prepare older youth for the workforce. The HBA’s HAY Center CommitO. Sorrels and U.S. Fifth Circuit Judge tee also helps with two special events Randall Jennifer Walker Elrod conduct a program on the each year–a Holiday Party for youth in importance of jury service. the HAY Center program, some of whom Prom Event each spring. The committee have small children of their own, and a provides donations of food, gifts, toys and
books, as well as a catered meal, for about 200 young adults and children, as well as helping with crafts and games. Because the host families of many youth in foster care cannot afford, or will not provide, special clothing for their senior proms, the HBA HAY Center Committee collects gently used formal dresses, suits and accessories, then hosts a “shopping event” that allows the teens to select prom attire, learn about makeup and hairstyles, and even pick up prom etiquette tips. The Importance of Jury Service This program focuses on demystifying the jury service experience for high school seniors, many of whom will soon be eligible to serve on juries. Then-HBA president, Randy Sorrels, created this program in 2005 in response to data that showed low juror turnout in Harris County, particularly in certain zip codes. The goal is to help build a foundation that encourages life-long participation in the justice process through answering a jury summons,
to ensure that jury pools are made up of a tation that focuses on democratic princitrue cross-section of the community. Lawples of government, usually based on that yers and judges year’s Law Day conduct interactheme. The 2017 tive classroom theme will be “The presentations that 14th Amendment: illustrate the hisTr a n s fo r m i n g tory and relevance American Democof the American racy.” The judgejury system, deattorney teams use bunking myths both hypothetical about jury service, and real life situaJudge Marc Carter and Brendetta Scott engage explaining the tri- high school students in the Dialogue program. tions to encourage al process and showing students how jury students to examine how diverse ethnic deliberations actually work. It is open to backgrounds, cultural identifications and all high schools in Harris County and has political perspectives are reflected in the reached more than 53,500 senior students. Constitution and the U.S. legal system. Dialogue on Freedom During Law Week, the first week of May, the HBA works with federal, district and state judges to conduct “Dialogue” programs in Houston-area high schools. Each participating judge selects an attorney to partner with them in an interactive presen-
PROGRAMS THAT SERVE YOUTH OF ALL AGES Breakthrough Houston In 2016-2017, HBA president, Neil Kelly, brought a new program to the HBA that serves middle and high school students. Breatkthrough Houston is an academic
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enrichment and college preparatory program for some of Houston’s most deserving young people. The tuition-free program prepares promising students with limited educational resources for competitive high school programs and college admissions. Participating students, who primarily attend Houston public schools, begin the program in their summer following 6th grade. The program consists of a six-week summer session, a school-year program and a college bound program once the student enters high school. The HBA worked with St. John’s School to recruit mentors for the College Bound Program, as well as provided speakers and courthouse tours. Mentors commit to meeting with assigned mentees at four designated sessions, as well as keeping in touch via phone calls, email and online chats on a regular basis to discuss grades, extracurricular activities, community service, social life and other issues to keep them on the track to succeed.
The Juvenile Consequences Partnership The Juvenile Consequences Partnership (JCP) is a partnership of the Houston Bar Association, the Harris County Probation Department, the Harris County District Attorney’s Office, and the Houston Police Department that gives young people a second chance. Established in 2007, the program provides education about the juvenile justice system to youth in deferred prosecution, as well as educates their parents. It is held on the third Tuesday of each month in the Jury Assembly Plaza. Youth ages 10-17 who have been charged with a misdemeanor attend as part of a court-ordered deferred prosecution program, and they must have at least one parent with them. A representative of each partner organization speaks for 15 minutes on their role in the juvenile justice system. A police officer discusses how juveniles are arrested and detained, an assistant district attorney talks about the process of charging a juvenile with a crime, a juvenile defense
attorney discusses how they represent a young person in the system, and a probation officer explains the department’s role after adjudication. To intensify the impact, a juvenile who has been through the system talks to the youth and their parents about his or her personal experience and how it has affected their life. If the youth successfully completes a court-ordered deferred prosecution program that includes a JCP presentation and other requirements, that young person will not have a record. Through June 2016, 10,409 youth had successfully completed the program, with an 87.6% success rate for the court-ordered 90 day program and an 83% success rate for the 180 day program. A second prong of the Juvenile Consequences Partnership is the Juvenile Records Sealing Project, where attorneys volunteer to seal juvenile criminal records, giving those who may have made a bad decision in their youth a better opportunity to attend college, get a job, rent an apartment and move on with their lives.
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This program is discussed by Judge Michael Schneider, Brian Fischer and Katya Dow in an article that begins on page 16 of this issue. Law Day Activities In addition to the elementary school readings and the Dialogue program, the HBA each year sponsors a Law Day Poster Contest for elementary students and Law Day Photography and Essay contests for high school students, as well as poster and photography contests for special needs students. Based on the annual Law Day theme, the contests give students the opportunity to research the legal topic and create a work of art or writing that expresses their understanding of legal principles. Speakers Bureau Established in 1952, the Speakers Bureau is one of the HBAâ€™s oldest community service programs. In addition to providing attorneys to speak on a variety of legal topics to adult groups, the Speakers Bureau recruits volunteer attorneys to speak on law as a career, juvenile law and many other age-appropriate legal topics. Last year, the Speakers Bureau reached 2,558 children and 3,235 teens in Houston-area schools. KidZone KidZone is a section of the HBA website that provides information for children, teens, parents and educators. The web page offers links and information on safety, legal and government education, bullying, law-related games, law as a career, conflict resolution, and other topics for young people, as well as links for parents and teachers.3 Tara Shockley is the Communications Director for the Houston Bar Association and Managing Editor of The Houston Lawyer. Endnotes
1. If you would like to find out more about any of these programs or if you would like to volunteer, please contact the HBA at 713-759-1133. 2. To read more about the Teach Texas program, see The Houston Lawyer, Jan-Feb 2016, at 37. 3. Visit KidZone at https://www.hba.org/kidzone/.
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By The Hon. Michael Schneider, Brian Fischer and Katya Dow
A Second Chance:
HBA, UH Law Center Team Up to Seal Juvenile Records T he Houston Bar Association’s Juvenile Records Sealing Project was created in 2013 to give juveniles convicted of minor, non-violent offenses a second chance. With their records sealed, these young people can join the military, apply for jobs in government, and attend college without the stigma of a juvenile criminal record. In 2014, the University of Houston also established a program that now
works with the HBA to seal records for juveniles who are not eligible under the HBA guidelines. In December 2016, the two programs reached a new milestone by sealing the 300th Harris County juvenile record. The heart of the Juvenile Records Sealing Project is the participation of volunteer attorneys who donate their time and legal expertise to seal juvenile files and records maintained by local law enforcement, governmental agencies or by the Harris County District Clerk. There are now numerous Houston law offices, including some of the city’s largest firms, and eight individuals who are volunteering to seal cases. As leaders in the HBA Juvenile Law Section, the authors of this article helped create a training program for attorneys who want to participate in the program by providing onsite training at law firms. The volunteer lawyers are trained on filing applications to seal files and records, and are prepared for appearances on the courts’ Sealing Dockets. The HBA’s program primarily seals records for juveniles who are granted deferred adjudication or who participated in the Divert 90 or Divert 180 programs. Divert 90 is an informal probation program for youth with no previous record who have been charged with a Class B misdemeanor. Divert 180 is a program for youth with no previous record who have been charged with a Class A misdemeanor. In both instances, the youth must complete requirements that include attending the HBA’s Juvenile Consequences Program (JCP) JCP is a partnership of the Houston Bar Association, the Harris County Probation Department, the Harris County District Attorney’s Office and the Houston Police Department. It provides education about the juvenile justice system to youth on probation, as well as their parents. The program is held once a month, from 6:00-8:00 p.m. in the Harris County Jury Assembly Plaza. Each partner organization speaks for 30 minutes on its role in the juvenile justice
system, with the goal of deterring youth through increased understanding of the system and its consequences. In 2015, the HBA partnered with the University of Houston’s Juvenile and Capital Advocacy Program, directed by Katya Dow, to expand services to help juveniles who were previously not eligible for sealing through the HBA’s program. Through this new partJoe Campos, who went through the Juvenile Consequences Program as a teen, talks to youth and their parents about the nership, juve- importance of the second chance the program offers them. This peer component shows young people they can move on from niles on pro- their mistake and have a successful future through JCP and the Juvenile Records Sealing Project. Judge Michael “Mike” Schneider is vising them of the right to seal and the bation for misdemeanors and felony judge of the 315th Juvenile District Court. contact information for both sealing adjudications, as well as felony deferred He was previously a Section Chief and programs. adjudications, can apply to have their reDeputy Division Chief at the Harris The HBA Juvenile Sealing Project is cords sealed. Training is also provided County Attorney’s Office. He has long working to expand its attorney volunfor the University of Houston law stubeen an advocate for juvenile record sealteer pool in order to give more Harris dents who work with this program. ing programs. County juveniles a second chance. There Prior to the implementation of these Brian Fischer is a Houston attorney who are also plans to videotape the training two programs, juveniles had nowhere to was among the first to earn Board Certifiprogram, providing more attorneys the turn but a private attorney to seal their cation in Juvenile Law in 2001. He is past opportunity to volunteer. records, and many did not know this chair of the State Bar of Texas Juvenile The Juvenile Sealing Project has garwas a possibility. Now, letters are proLaw Section and past chair of the HBA nered interest statewide, and Judge Joe vided to the participants in the Divert 90 Juvenile Law Section, where he currently Lee Register of County Court at Law #1 and Divert 180 Programs, as well as all serves as program chair. He also is a Subin Angelina County has implemented other eligible juvenile offenders, informstitute Associate Judge/Master in the Juvethe program, based on the HBA’s model. ing them of how to access the sealing nile Courts of Harris County. In June 2016, the State Bar of Texas honprograms. In addition, the judges and Katya Dow is an Associate Professor of ored the HBA Juvenile Records Sealing associate judges in the 315th District Law at the University of Houston Law Project with its Outstanding PartnerCourt advise juveniles and their parents Center and Director of the University of ship Award. of their right to seal the records and inHouston’s Juvenile and Capital Advocacy form them about programs available. Program. She is instrumental in teaching If you would like to find out more about Upon completion of deferred adjudithe fundamentals of juvenile sealing and the HBA Juvenile Records Sealing Projcation or probation, the Harris County mentors law students in the filing and preect, please contact Ashley Steininger at Juvenile Probation Department sends a sentation of sealing applications in court. 713-759-1133 or email@example.com. letter to the parents of the juvenile adthehoustonlawyer.com
By Mariame Aana
What Do DREAMers Dream Of?
“DACA Has Changed My Life in Major Ways...” –Catholic Charities DACA Client Setting the Stage It was one week before the taping of a special episode of ABC’s 20/20 and Ricardo was unable to accept a starring role. Earlier that summer, network representatives had met with him at the downtown Houston office of Catholic Charities, but the extended invitation to share his story on national television came with a catch—he would have to travel to McAllen, Texas for the show. A trip to McAllen posed a risk the nineteen-year-old youth had not faced in years: passing through a checkpoint. As a DACA recipient whose initial DACA grant expired before his renewal was approved, Ricardo was cast back into the treacherous territory of being “undocumented.” Repeated daily checks of his USCIS Case Status online continued to indicate a “pending” case, while he hoped for a decision that would render him “DACAmented” once more. The expiration of his DACA amounted to the following documents in his possession: an expired driver’s license, an expired work authorization card, and an invalid Social Security Card imprinted “Valid for Work Only with DHS Authorization.” More intangibly, with the expiration of his DACA, Ricardo now carried around a keen awareness that he was no longer assuredly able to travel within United States territory.1 The Beginners, DACA Defined While there are many types of deferred action in immigration law, DACA, (Deferred Action for Childhood Arrivals), is one of the more prominent examples of the government’s exercise of prosecutorial discretion. Created by a June 15, 2012 executive memo, DACA is available to individuals who meet all of the following eligibility requirements:
1. Entry to the United States before age 16; 2. Age 15 years old, or younger if currently or previously in deportation or removal proceedings; 3. Younger than 31 years old on June 15, 2012; 4. Physical presence in the United States on June 15, 2012; 5. Lack of status presently and on June 15, 2012 (after initial entry without status or entry with status that expired); 6. Continuous residence in the United States beginning June 15, 2007; 7. Current enrollment in or degree from a qualifying educational institution, or honorable discharge from military service; and 8. No serious criminal record (characterized by a felony, a “significant misdemeanor,” or more than two “nonsignificant misdemeanors”). As a discretionary remedy, an applicant may meet all the requirements for DACA and still be denied with essentially no recourse. Benefits (and Limitations) of DACA The direct benefits of DACA include temporary reprieve from deportation, legal presence (not status), work authorization, a driver’s license and/or state ID card, a restricted social security number, the opportunity for limited travel, and the possibility of renewal. Related benefits include improved employment prospects (better positions and higher incomes), enhanced educational access and opportunity, and the acquisition of credit and/or titled property (house, car, etc.). It is not uncommon for clients to report that they have been able to attend college after high school thanks to DACA allowing them to work, because their families would otherwise not have been able to afford tuition. The intangible and indirect benefits of DACA, based on its bringing community members “out of the shadows” and collectively ameliorating prospects for families and communities, range immeasurably beyond direct and related benefits.
Positive effects at a psychological level are noted across multiple assertions of clients such as: “I no longer fear deportation. I no longer feel discriminated against due to not having a Texas I.D. card”; “DACA has changed my life with feeling less stress. I worry less”; “DACA has helped me feel less afraid of going out. It has helped me get a job as well, something I wasn’t too confident to do prior to applying to DACA.” Other positive effects “trickle down” to a client’s relationships with his or her family and community. For clients who are or become parents, their statements frequently underscore DACA’s impact on their ability to provide for their family. Other clients, like Ricardo, report that DACA enabled them to become the breadwinner of the family at a young age when parents or de facto guardians were unable to adequately provide for reasons such as health-related, immigration-related, and/ or other socio-economic issues. One client’s account indicates an awareness of parents struggling, despite working two jobs and rarely being home during the day or on weekends. One client expressed a desire to work so the parents would worry less, not have to be tired, spend more time at home with a younger sibling, and not have to miss out on school events (unlike during the client’s younger years). It bears mentioning that many families are of mixed immigration statuses, and DACA clients may have undocumented parents and U.S. citizen siblings as part of the same household. Perhaps the most touted benefit of DACA is work authorization. For nonU.S. citizens, there are various pathways to achieving work authorization, including by virtue of one’s status. For example, refugees and asylees are inherently and indefinitely authorized to work in the United States.2 DACA recipients are provided with a two-year EAD (employment authorization document) based on an underlying grant of deferred action. They are then able to apply for a Driver’s License and/or State ID, as well as a restricted Social Security Card. In Texas, the state ID documents are issued with an expiration
date that coincides with that of the EAD. Examples abound of ways in which work authorization has transformed lives: “I have been able to find a job that doesn’t pay much but at least helps my family’s expenses.” “I was previously a delivery driver, and then with DACA got a job as catering coordinator, doubling my income.” “Now that I have the ability to work I can be responsible for my own stuff. Now that I’m going to finish high school, I hope I can do many things after.” DACA recipients are not granted “legal status.” Rather, they are granted “legal presence” throughout the two-year duration of their reprieve from deportation. Legal presence is particularly relevant to those over 18 years of age, because it stops the accrual of unlawful presence, which, depending on the amount of time accumulated, can result in future immigration consequences. For instance, an individual unlawfully present in the U.S. for more than one year can trigger a 10year bar to admission upon leaving the U.S. For clients who have been identified as potentially qualifying for another immigration remedy, such consequences can make or break the decision to pursue a more permanent immigration alternative to DACA. When DACA lapses or expires, even with advice from legal counsel, the invisible burden of unlawful presence often takes a backseat to more pressing concerns. It is crucial that DACA recipients and their legal representatives monitor their expiration dates and take action to timely renew DACA. Individuals who experience a lapse in DACA face consequences such as citations and arrests for traffic violations or job loss. These risks, which run rampant for undocumented individuals, appear all the more menacing when DACA is within one’s grasp, as illustrated by the example of a client who was pulled over by a police officer and cited for no driver’s license while on his way home from a DACA workshop. It may seem like the possibility of a DACA renewal in itself is not an extraorthehoustonlawyer.com
dinary benefit, but as one client expressed: “My dream in the future is to continue to have this opportunity through DACA and keep taking advantage of it.” Over and over again, clients have voiced their thankfulness for this opportunity and their desire to receive it once more. This observation is reflected in the numbers. Nationally there are 752,154 approvals of initial DACA and 667,287 renewal applications filed as of September 2016.3 The year 2016 marked the first wave of youth applying for DACA for a third cycle and although the data does not distinguish between first- and second-time renewals, the vast majority of renewals at this time are to extend DACA for original recipients.4 Renewals, like the original DACA application, come at a price. For both processes, the same forms and fees are submitted, although for renewals, less documentation is required due to the existing record with USCIS. Effective December 23, 2016, immigration application fees were raised across the board and the DACA applica-
tion cost increased from $465 to $495 ($85 is included for biometrics, where the client’s fingerprints, photograph, and/ or digital signature are taken).5 While DACA has improved the economic situation of most clients, some have continued to experience difficulty in paying for the process. Hardworking families have put forth efforts such as collecting scrap metal to finance the fee. Without DACA or access to credit, families have struggled to overcome situations with dwindling options. In response, Catholic Charities has worked with community members and entities, including groups like PTOs and parishes, to provide fee scholarships to clients in exigent circumstances who do not otherwise qualify for a USCIS fee exemption.6 A secondary cost of a DACA renewal is that it frequently lops off time from the prior extension of DACA. DACA ostensibly extends benefits for two years, but in practice it can result in protection for as little as a year and a half. Recipients are
“strongly encouraged” to renew between 150 and 120 days prior to expiring, and USCIS mails reminder notices 180 days ahead of their expiration date.8 Adhering to USCIS guidance, at the 1.5-year mark of having DACA, it is time to start the process of re-applying, including preparing documents and the fee and deciding whether to seek legal representation. DACA renewal processing times have fluctuated and proven difficult to predict—with some renewals granted in as little as three weeks, and others pending for months as in the case of Ricardo.8 Applying early is encouraged to avoid the risk of having a lapse in DACA. If an early applicant’s case happens to be approved in a matter of weeks, the renewal extends two years from the date of approval—not from the date of the prior DACA’s expiration, which could result in a significant reduction of the benefit of DACA from its full two-year time period.9 Juvenile Leads and Triple Threats Across the United States, DACA grantees study, volunteer, and work in all fields including the arts, technology, law, medicine, business, education, and engineering.10 Catholic Charities is among countless organizations that count DACA recipients among its employees, interns, and volunteers. For individuals who have never been confronted with the challenges of being undocumented, it may be startling to recognize DACA recipients among neighbors and friends—not unlike the shock experienced by many of these youths who may not have realized that they were undocumented (and the implications arising therefrom) until later in their teenage years. Playing Space The St. Frances Cabrini Center of Immigrant Legal Assistance at Catholic Charities is the largest nonprofit immigration legal services provider in Houston. Accredited by the Board of Immigration Appeals, Cabrini is dedicated to providing low-cost and pro bono legal services to low-income immigrants and refugees, including DACA clients and their relatives,
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who would otherwise not be able to obtain legal representation. Hundreds of individuals including DACA recipients, community volunteers and pro bono volunteers have been integral to the delivery of DACA assistance to thousands of clients. Despite the current climate of uncertainty in the political arena, Cabrini has experienced a sustained demand for DACA renewals. In the last quarter of 2016, over 100 renewal and original clients were served through a workshop hosted in partnership with ExxonMobil Corporation and Houston Volunteer Lawyers. Ultimately, over 100 renewal applications were filed in November and December 2016 alone. Throughout the history of Cabrini’s DACA workshops, numerous law firms and pro bono attorneys have similarly provided critical support with countless hours of service. Cabrini continues to assist clients on a case by case basis, providing direct legal services for those understanding and choosing to undertake the risks. In recent months, Cabrini received a grant
from Noble Energy in recognition of the importance of continued legal services for DACA applicants, a notable example of a corporation investing in the future of youth in our community. The Final Bow? Two days before the 20/20 taping, the online USCIS Case Status reflected an update on Ricardo’s pending DACA Renewal: “New Card is Being Produced.” He was advised he could travel to McAllen, where he fulfilled a lifelong dream of speaking with the Pope in a televised virtual audience.11 Ricardo’s return voyage displayed the fine line trodden by DACA grantees with each passing day bringing them closer to the expiration date of the temporary grant of protection: while making his way back to Houston in the McAllen airport, he was pulled out of line by TSA agents. After showing them the letter written by his legal representative, which noted that his new documents were yet to be mailed by USCIS, they waved him through. Since the 2016 election, immigration ad-
vocates and organizations have expressed varying viewpoints on the spectrum of possibilities surrounding DACA’s fate. On one end, there is alarmist apprehension that DACA’s death knell is nigh and that new applicants should think twice before lodging a case with the government. On the other end, there is dogged belief that advocates should assist clients seeking the benefit to apply as long as DACA continues to be available—in fact, applying for DACA now may queue clients for other benefits should the program be transitioned or modified in the future. At the time of this writing, the future of DACA is still uncertain, but efforts are underway to ensure that the beneficiaries of DACA would not be left out in the cold at the time of DACA’s curtain call. Bi-partisan legislation has been introduced into both houses of Congress in the form of the BRIDGE Act (“Bar Removal of Individuals who Dream and Grow our Economy Act).12 More recently, a February 2017 government memorandum provides that, despite shifting immigration enforcement
priorities, the DACA program is to remain in place under current policies.13 Now, nearly two years later, Ricardo is working at a law firm and finishing his college degree. His dreams of studying finance and working in the business world have been reshaped into a new dream— studying law and working in the immigration field. On a daily basis, he assists immigration applicants, including those seeking DACA. As he approaches the end of his current DACA grant, he is among the millions monitoring the status of the Congressional legislation and policy developments. His hopes and dreams are inextricably intertwined with the knowledge that his “status” in the U.S. is still far from settled. Mariame Aana is a Supervising Attorney at Catholic Charities of the Archdiocese of Galveston-Houston and is licensed to practice law in New York, Texas, and Washington D.C. For information regarding pro bono opportunities at Catholic Charities, email firstname.lastname@example.org.
Endnotes 1. https://help.cbp.gov/app/answers/detail/a_id/1772/~/dacaapproved-travel-to-u.s.-territories-without-advance-parole. 2. 8 C.F.R. § 274a.12(a)(3)–(5). See https://www.justice.gov/ sites/default/files/crt/legacy/2012/07/02/RefugeeAsylee_ employer.pdf. 3. Historical data dating back to 2012 is available from the USCIS website: https://www.uscis.gov/tools/reportsstudies/immigration-forms-data/data-set-form-i-821ddeferred-action-childhood-arrivals. The most recent report for data as of September 30, 2016 (the fiscal year’s 4th Quarter) was published December 23, 2016: https://www. uscis.gov/sites/default/files/USCIS/Resources/Reports%20 and%20Studies/Immigration%20Forms%20Data/All%20 Form%20Types/DACA/daca_performancedata_fy2016_ qtr4.pdf. 4. If filed on time, renewals filed through September 2016 would have been for individuals with expiration dates ranging through the end of February 2017. Individuals expiring February 2017 on a second grant of DACA, would have had an initial grant of DACA expiring on or before February 2013 (roughly counting two-year increments). As of the end of February 2013, there were a total of 221,776 original DACA approvals, which approximates the upper limit of the number of second-time DACA renewals included in the 667,287 total filings. See March 2013 report:https://www.uscis.gov/sites/default/files/USCIS/ Resources/Reports%20and%20Studies/Immigration%20 Forms%20Data/Static_files/2012-1116%20DACA%20 Monthly%20Report.pdf 5. https://www.uscis.gov/i-821d; https://www.uscis.gov/ forms/forms-information/preparing-your-biometricservices-appointment. 6. USCIS provides fee exemptions (not fee waivers) for DACA applicants who have income less than 150% of the federal poverty and meet one of the following criteria: (1) Under 18, homeless, in foster care, or otherwise lacking parental or familiar support; (2) unable to care for oneself
due to serious chronic disability; (3) $10,000 or more in debt in the last 12 months from unreimbursed medical expenses for self or immediate family member. https://www. uscis.gov/forms/forms-and-fees/guidance-exemption-feeform-i-765-filed-request-consideration-deferred-actionchildhood-arrivals. 7. https://www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-process/renew-yourdaca 8. USCIS historical and average processing times for applications are available at https://egov.uscis.gov/cris/processTimesDisplayInit.do. 9. A variation in the pattern of granting DACA applications based on approval date was observed among cases granted between December 2016 and January 2017, where clients received approvals that tacked on two years from the date of expiration, granting them the full benefit of the underlying DACA’s two year period prior to the renewal. 10. https://www.nytimes.com/interactive/projects/storywall/ american-dreamers. 11. The full version of the broadcast Pope Francis & The People is available at: https://www.youtube.com/ watch?v=NMsOvpPhGn0 ; See also http://abcnews. go.com/US/pope-francis-turns-favorite-sport-messagetexas-church/story?id=33486336 12. H.R. 496 & S.128, 115th Cong. (1st Sess. 2017), available at https://www.congress.gov/bill/115th-congress/housebill/496/text and https://www.congress.gov/bill/115thcongress/senate-bill/128/text. 13. “With the exception of the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,”. . . all existing conflicting [memoranda]. . . are hereby immediately rescinded.” Memorandum from John Kelly, Sec’y, Dep’t Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs & Border Prot., et. al. (February 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-theImmigration-Laws-to-Serve-the-National-Interest.pdf.
By Al Amado and Bruce Steffler
Problems and Legal Protections for Homeless Youth Background An estimated 120 million children worldwide live on the streets, The Williams Institute estimates that approximately 40% of these homeless youths identify as LGBT, which is disproportionally higher than the percentage of youth in the general population who identify as LGBT. The National Center for Family Homelessness estimates that some 1.3 to 1.6 million kids living on the street are in the United States. California, New York, Florida and Texas have the largest number of homeless youth. Since these children often avoid detection, de-
termining their exact number is difficult. Often, they live in the shadows for a variety of reasons and the circumstances that lead these children to find themselves on the streets are multifaceted. Some of these children are accompanied by adults and experience homelessness as a consequence of the breadwinners of the family unit losing their jobs. In these situations, social service agencies are often able to provide support services to the adults, and, in turn, to the accompanying family. Other kids, however, find themselves on the street having fled their home due to a myriad of social issues in the family, including drug or alcohol addiction, physical or emotional abuse or, in some cases, disapproval of the kids’ sexual orientation or gender identity. Social service agencies find that kids who are unaccompanied by adults are frequently more difficult to reach and help, precisely because they prefer to lead a precarious existence by themselves, rather than receive help and live in foster care homes where their life is more regulated and controlled or where their foster family may be disapproving of their “lifestyle.” Additionally, many of these kids have had negative previous experiences when dealing with social service agencies and workers that lack cultural sensitivity and, as a result, they become extremely distrustful. The reality is that many programs catering to youth are simply not set up to accommodate the needs of younger kids experiencing homelessness. In particular, the needs of homeless youth between the ages of 13 and 17 are hard to address by social services agencies because these programs are set up to address the practical needs of older youth and adults, such as employment and housing. In contrast, most programs for kids on the street tend to provide triage for the unique needs of the younger kids like surviving on the streets and becoming more self-reliant. In light of the above realities, these younger kids lead lives of deprivation and desperation. Their daily challenges include facing hunger, poverty, lack of education, and injury or illness without healthcare.
Because they are reluctant to access soor who has not had the disabilities of micial service agencies that may pull them nority removed for general purposes.1 This into the foster care system, they continue is the definition that will be used in this their marginalized existence alone, often article. Interestingly, an adult is a person surviving in loosely organized groups of who is not a child.2 youth that socialize, camp out and travel Perhaps the most meaningful assistance together. These youths find themselves at a child experiencing homelessness can regreater risk of drug and alcohol addiction, ceive, other than having access to health suicide, sexually transmitted diseases and care, is having his or her disabilities as a mental distress and depression. They are child removed. These disabilities are the also often preyed upon while living on the barrier to accessing many resources. A streets and used as mihomeless child can obcro-traffickers of drugs tain most of the practiAn estimated or sexually exploited. cal rights of an adult by 120 million The LGBT youth face having the disabilities the additional chalof minority removed children lenges of exploring, as long as a court finds worldwide searching and coming that the removal of disto terms with their sexabilities is in the best live on the streets. ual identity while living interest of the child. Of on the streets. A recent The Williams course, this requires the survey of homelessness court hearing the matInstitute estimates in Houston found that ter to consider whether nearly 41% of youth that approximately the child is aware of experiencing homelesswhat he or she is do40% of these ness also indicated that ing and in the proper they had engaged in mental state to seek the homeless youths survival sex; that is exremoval of disabilities. identify as changing sex for daily A minor may petition needs. to have the disabilities LGBT... Against this backof minority removed drop, what legal resources are available for either general or limited purposes profor these kids experiencing homelessness vided the minor is a Texas resident and is (sometimes along with the social stigma either 17 years of age, or, if under 16 years attached to their ‘different’ sexual identiof age, is self-supporting and is living on ty)? Can they access legal resources themhis or her own.3 A minor seeking to have selves? What practical, legal advice can a his or her disabilities of minority removed practitioner who might encounter these must have a parent, guardian, or mankids offer them? These are the objectives aging conservator verify the petition to of the following section of this article. emancipate the minor. This requirement, along with proving residency, may seem Legal Backdrop for Resources insurmountable for a child who is esAvailable to Minors tranged from his family and living on the The practical legal resources needed by street. Since the appointment of an amicus kids experiencing homelessness relate to attorney or attorney ad litem in such suits the basics needed for day-to-day survival, is mandatory, the court-appointed represuch as food, shelter, the ability to seek sentative may verify the petition.4 and receive medical care, or the ability to Except for specific constitutional and contract. statutory age requirements, such as votUnder Texas law a child or minor is a ing or buying and consuming alcohol or person who has not reached 18 years of tobacco, the removal of the disabilities of age; who is not and has not been married; minority for general purposes gives him/
her the legal capacity of an adult with all of the resulting benefits and access to resources.5 The emancipated child can thus enter into contracts and make his own significant adult decisions, such as educational and medical decisions. It would follow from this that the emancipated child becomes a child capable of self-determination with regard to meaningful issues related to his/her life and identity. Generally, a child who is not emancipated may nonetheless consent to medical, dental, psychological and surgical treatment by a licensed physician or dentist if the child is (a) at least 16 years of age or older and (b) living apart from the parents or guardians and is managing his or her own financial affairs, regardless of the source of income.6 A child may also consent to counseling for suicide prevention; chemical addiction or dependency; or sexual, physical or emotional abuse, without the consent of his parents.7 An emergency shelter facility may provide shelter and care to a minor during
an emergency constituting an immediate danger to the child’s physical health or safety for up to 15 days and thereafter if the child is 16 years of age or older and, living apart from his parents or guardians and is managing his own financial affairs.8 A minor may also consent to housing or care at a transitional living program which is designed to provide basic life skills training with a goal of development toward independent living, provided the child is 16 years of age or older and, living apart from his parents or guardians and is managing his own financial affairs.9 Conclusion From the foregoing, it is clear that children 16 years of age and older have some resources available and the availability of resources expands greatly if they have their disabilities removed. What resources are available to kids younger than 16 years of age experiencing homelessness, though? Unfortunately, the reality is that the child under 16 years of age really has
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no legal resources available. While all kids living on the streets face challenges daily, those younger than 16 years of age face the hardest challenges. Additionally, LGBT children who find themselves experiencing homelessness have additional burdens, including bullying and coming to terms with their sexual identity. All of these street kids, however, are often completely unaware of their rights, what laws may be available to protect them, and what services they may be able to access to help them survive and thrive. The simplest things that we take for granted, such as access to education or documents to establish our identity, can escape the grasp of these children and deprive them of many benefits. We hope that this article has provided some practical, legal advice that all practitioners can use to help this marginalized segment of the community find a voice. Finally, if you are not able to help homeless youth as an attorney, please consider simply referring them to Tony’s Place, a nonresidential drop-in center for all kids aged 13 to 24 experiencing homelessness, but with a special focus on LGBT youth. Tony’s place offers a gamut of free services, including food, clothes, health and social services. Starting in January 2017, Tony’s Place began offering legal services to these youths in cooperation with the University of Houston Law Center. Further information regarding Tony’s Place may be found at www.TonysPlace.org. Al Amado (firstname.lastname@example.org) and Bruce Steffler (email@example.com) are founding Board Members of Tony’s Place. Mr. Steffler is a family law and trial attorney in Houston. Mr. Amado is a trial attorney who specializes in international law, rule of law and legal reform in Latin America. Endnotes 1. 2. 3. 4. 5. 6. 7. 8. 9.
See Tex. Fam. Code § 101.003. Id. at § 101.003(c). Id. at § 31.001. Id. at §§ 31.002, 31.004. Id. at § 31.006. Id. at § 32.003. Id. at § 32.004. Id. at §§ 32.201, 32.202. Id. at § 32.203.
By The HON. Scott Link
Do’s and Don’ts of the Guardian Ad Litem in Civil Courts T
he concept of appointing a guardian ad litem to represent the interest of a minor finds its origins during the time of the Roman Empire, when the protector of the minor’s interests was called a “special curator.”1 The United States paralleled the English common law in which the king was the protector of infants and incompetents and could issue a letter pat-
ent for the appointment of a guardian.2 Prior to the codification of the “guardian ad litem” laws, the settlement proceeds attributable to the minor’s claim were given to the parents, believing they were best able to appreciate the needs of their children. However, this philosophy was a recipe for parental indiscretions, which resulted in depriving the minors of their benefits, as some parents spent the money for their personal gratification. So, in 1940 the Texas Supreme Court passed the predecessor order to Texas Rule of Civil Procedure 173. Rule 173 was substantially revised in 2005. The following is a brief summation of Rule 173 and a practical application of the Rule for an attorney serving as guardian ad litem. A guardian ad litem is an officer appointed by the court to assist in protecting the settlement interest of an incapacitated party who is represented by a next friend or guardian that appears to have an interest adverse to the incapacitated party (“Party”).3 If there is more than one similarly situated Party, the same guardian ad litem must be appointed for all the Parties unless the court finds different guardian ad litems are necessary.4 The guardian ad litem (“ad litem”) is an officer and advisor to the court and does not act as the attorney for the Party.5 Therefore, the ad litem may participate in mediation and informal settlement negotiations6 but may not participate in the actual litigation including discovery, trial, or other court proceedings unless such participation is approved by a written court order delineating the reasons for and extent of the ad litem’s participation.7 The ad litem’s communications with the next friend and Party are privileged.8 When there is a settlement offer made for the use and benefit of the Party, the ad litem must determine if the settlement is in the Party’s best interest9 and if a conflict exists between the Party and the
next friend.10 In determining if the settlement offer is fair and reasonable to the Party, the guardian ad litem, after a thorough investigation, should evaluate:11 1. the damages suffered by the minor; 2. the adequacy of the settlement (including an evaluation of the liability and damages issued, and the likelihood of obtaining and keeping a collectable judgment through trial and appeal); 3. the proposed apportionment and manner of distribution of the settlement proceeds; and 4. the amount of attorney’s fees charged by the plaintiff’s attorney. The ad litem must file a verified application for compensation delineating the basis for the amount sought. Unless the parties agree to the application, the court must conduct an evidentiary hearing to determine if the amount of attorney fees and case expenses are reasonable and necessary.12 The compensation is taxed as court costs and cannot be based on a percentage of the settlement or judgment.13 Although the guardian ad litem is often referred to as the “eyes and ears” of the court, the ad litem may not have an ex parte communication with the judge.14 In fact, by motion of any Party or the ad litem, the court must sever any order awarding the ad litem compensation if the order is the subject of an appeal or mandamus review.15 Once the guardian ad litem has either informed the court that there is not a conflict that warrants further involvement or that the ad litem has participated in the “minor settlement hearing,” and the judgment and fee order is signed, the ad litem’s duties are complete. Following this action, the guardian ad litem cannot recover any additional compensation for defending his fees or performing post judgment work not necessary to representing the Party.16 Below is a helpful list of “do’s” and “don’ts” to assist the ad litems in the
practical application of the law governing guardian ad litems in civil cases. Do’s: 1. Read Tex. R. Civ. P. 173, Tex. R. Civ. P., S.B. 1876 (September 1, 2015) Tex. R. Civ. P. 44; and Chapter 142 of the Texas Property Code. 2. Attend the guardian ad litem course offered each year and submit your name with proof of your attendance to each of the Civil District and County Courts. 3. Learn the pet peeves of the court in which the case is pending. (Is the appearance of minors necessary at the hearing? Is a written report required?). 4. Keep accurate time records of your reasonable fees to document your verified application for attorney’s fees. 5. After reviewing the notice of appointment, immediately send a letter to the attorney for the Party requesting: (a) medical records of all injured persons; (b) the proposed settlement breakdown of all injured persons; (c) the back-up support for all “reimbursable” case expenses; (d) a copy of all applicable insurance policies; (e) accident report; and (f) the contact information for the next friend. Ask the attorney to inform the next friend who you are and that you will be contacting him/her. 6. Educate yourself about investment alternatives (court registry, annuities, Chapter 142 trusts, special needs trusts) and which is the best option for the Party. A guardian ad litem may be liable for an unsecured investment plan.17 7. Meet with the next friend, outside the hearing of the Party, to discuss the settlement breakdown, case expenses, medical bills and reductions, investment options, Party’s injuries, recovery time and ongoing problems (not just physical), and next friend’s thoughts about the settlement. 8. Explain the procedure for the mi-
nor settlement hearing to the next friend and the questions he/she will be asked. 9. Resolve all problems prior to the hearing (need for an interpreter, language for the proposed judgment, qualified assignment, trust documents, medical liens, and next friend’s concerns). A pro se parent cannot represent their children.18 10. Call the attorney for the defendant prior to the hearing in an attempt to agree on your ad litem fees. Bring a completed Texas Supreme Court Fee Report (revised 2016) to the hearing for the attorneys to sign. 11. Prepare exhibits such as proposed structures, photographs of scars, a proposed disbursement sheet to provide to the judge for purpose of the hearing only. 12. Make a good faith attempt to help the attorney for the Party reduce or further reduce the medical liens. The court has the authority to reduce Medicaid liens. (See Arkansas Department of Health and Human Services v. Ahlborn; 547 U.S. 268 (2006)). Don’ts: 1. Don’t approve attorney’s fees charged to your Party in excess of 33 1/3% or if the fee exceeds your Party’s net recovery even if fee is 33 1/3% or lower. 2. Don’t approve attorney’s fees in excess of 10% for PIP recovery. 3. Don’t approve “front loading.” That is, after review of the medicals, make sure the Party’s recovery is equitable relative to everyone else’s recovery, especially the adult plaintiffs. 4. Don’t make the Party re-live the event, if the injuries are severe or caused by traumatic events such as fire, dog attacks, or accidents involving loss of parent or sibling. During the home visit, you should be introduced as a family friend and then speak with the Party about school, sports, hobbies, etc. Don’t discuss the event in the Party’s presence. The parents are a compendium of useful thehoustonlawyer.com
information. Don’t use an annuity company unless it is rated A+ XV by AM Best, i.e., one whose voluntary reserves exceed $2,000,000,000.00. Don’t criticize the Party’s attorney to the next friend. Work out any problem with the attorney directly. Don’t approve expenses such as “file opening fee,” “Lexis” or “Westlaw” time. Don’t agree to use defendant’s insur-
ance company to fund the annuity (see 5 above). They may be co-brokers (as long as they are in compliance with Don’t number 5). 9. Don’t structure a settlement with lump sum payments past the age of 30 unless there is permanent impairment. A trust may be a better option. 10. Don’t forget that it is an honor to have a court place its faith in you to serve as guardian ad litem. So, “earn this.”19
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In sum, the role of the guardian ad litem is to aid the court and to protect the interest of the minor or disabled Party. If you have been appointed such, and have any concerns, please avail yourself of the literature on this subject or contact a more experienced ad litem for assistance. The Hon. Scott Link is a litigator and mediator, former State District Judge, and board certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization. He writes and lectures in the areas of attorney’s fees and fiduciary duty. Endnotes
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1. Charles P. Sherman, The Debt of the Modern Law of Guardianship of Roman Law, 12 Mich. L. Rev., 124(1913). 2. Ellen K. Solender, The Guardian Ad Litem: A Valuable Representation or Illusory Safeguard 2, 7, Tex. Tech. L. Rev. 619 (1976). 3. Tex. R. Civ. P. 173.4(a); 173.4(b); 173.4(c); O’Connor Texas Rules: Civil Trials 2016 at p. 85 citing Ford Motor Co. vs. Stewart, Cox, & Hatcher, P.C. 390 S.W. 3d 294, 297 (Tex. 2013). Incapacitated party is defined in Tex. R. Civ. P. 44. 4. Tex. R. Civ. P. 173.2 (b). 5. Tex. R. Civ. P. 173.4 (a). 6. Tex. R. Civ. P. 173.4 (d)(1). 7. Tex. R. Civ. P. 173.4 (d)(3); See Jocson v. Crabb, 133 S.W. 3d 268, 271 (Tex. 2004); Phillips Petroleum C. v. Welch, 702 S.W. 2d 672, 674 (Tex. App-Houston [14th Dist.] 1985, writ ref’d n.r.e.). 8. Tex. R. Civ. P., 173.5. 9. Tex. R. Civ. P. 173.4 (c); See also Byrd v. Woodruff, 891 S.W. 2d 689, 706-707, (Tex. App-Dallas, 1994, writ denied). 10. Tex. R. Civ. P. 173.4 (b); See Ford Motor Co. v. Stewart, Cox, & Hatcher, P.C. 390 S.W. 3rd 294, 297 (Tex. 2013); In re. KC Greenhouse Patio Apartments, LP, 445 S.W. 3rd 168, 176, (Tex. App-Houston [1st Dist.] 2012). 11. Transport Ins. Co. v. Faircloth, 861 S.W.2d 926, 935 (Tex. App-Beaumont 1993, writ granted). 12. Tex. R. Civ. P.173.6 (b); See also Goodyear Dunlop Tires North America, LTD, v. Gamez, 151 S.W. 3d 574 (Tex. App-San Antonio 2004); Brownsville – Valley Regional Medical Center v. Gamez, 894 S.W. 2d 753, 755 (Tex. 1995), Ford Motor Company v. Garcia, 363 S.W.3d 573, 580 (Tex. 2012). 13. Tex. R. Civ. P. 173.6(b)(c). 14. Tex. R. Civ. P. 173, Cmt. 6, Tex. Code Jud. Conduct, Canon 3(b)(8). 15. Tex. R. Civ. P. 173.7 (a)(b). 16. Brownsville-Valley Regional Medical Center, Inc. v. Gamez, 894 S.W. 2d 753, 756-57. 17. Byrd v. Woodruff, 891 S.W.2d 689 (Tex. AppDallas 1994). 18. Rogers v. Dallas L.S.D., 2007 W.L. 1686508 (N.D. Tex. 2007). 19. Tom Hanks, Capt. John Miller “Saving Private Ryan”; Amblin Entertainment, 1998.
Large Firm Champions
Andrews Kurth Kenyon LLP Baker Botts L.L.P. Bracewell LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips, Inc. Exxon Mobil Corporation Halliburton LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions
Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain, Hrdlicka, White, Williams & Aughtry Eversheds Sutherland LLP Gardere Wynne Sewell LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP
ReedSmith LLP Sidley Austin LLP Strasburger & Price, L.L.P. Susman Godfrey LLP Winstead PC Winston & Strawn LLP
Boutique Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McGuireWoods LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Sutton McAughan Deaver LLP Vorys, Sater, Seymour and Pease LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions
Coane & Associates Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Givens & Johnston Hunton & Williams LLP Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KimLy Law Firm PLLC
KoonsFuller, P.C. Kroger | Burrus MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP The Law Office of Scardino & Fazel Shortt & Nguyen, P.C. Trahan Dinn Kornegay Payne, LL
Law Office of J. Thomas Black, P.C. Law Law Office of Peter J. Bennett Burford Perry, LLP Helene Dang The Dieye Firm The Ericksen Law Firm Law Office of Todd Frankfort Hasley Scarano L.L.P. David Hsu The Jurek Law Group, PLLC The LaFitte Law Group, PLLC C.Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Law Office of Maria S. Lowry Martin R.G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Law Office of Bertrand C. Moser Rita Pattni, Attorney at Law Pilgrim Law Office Robert E. Price Reece Law Firm, PLLC Law Office of Cindi L. Robison Law Office of Jeff Skarda Angela Solice Diane C. Treich The Law Office of Norma Levine Trusch thehoustonlawyer.com
Houston Bar Foundation Celebrates 35 Years of Service Travis Sales Takes Office as 2017 Foundation Chair
The James B. Sales Pro Bono Leadership Award was presented to Richard L. Tate, chair of the Texas Access to Justice Foundation since 1997. Pictured here, from left: 2017 Foundation Chair Travis Sales, 2016 Foundation Chair Denise Scofield, Richard L. Tate, and James B. Sales, the award’s namesake.
he Houston Bar Foundation marked its 35th year of service at its Annual Meeting and Luncheon held February 21 at the Marriott Marquis Houston. The luncheon not only commemorated the installation of new officers, but also recognized the contributions of volunteers who provide pro bono legal representation and other services to the community. Travis Sales of Baker Botts L.L.P. took office as the 2017 chair of the Houston Bar Foundation, succeeding Denise Scofield of Morgan, Lewis & Bockius LLP. The program featured an interview with Harry Reasoner, partner at Vinson & Elkins LLP and chair of the Texas Access to Justice Commission, conducted by his son, Barrett Reasoner of Gibbs & Bruns. Veronica H. Foley of Precision Drilling Corporation will serve as vice chair of the Foundation and Michael Donaldson of EOG Resources, Inc. will serve as treasurer. Newly-appointed directors for 2017-2019 are Charles S. (Chip) Casey of Exxon Mobil Corporation; Tom Godbold of Twin Eagle Resource Management, LLC, and Travis Torrence of Shell Oil Company. Completing two year terms as directors for 2016-2018 are Jim Hart of Williams Kherkher Hart Boundas LLP, Jeffrey Kaplan of LyondellBasell, and Barrett Reasoner of Gibbs & Bruns LLP. Scofield will serve on the board as immediate past chair. Scofield presented the Foundation’s annual awards for pro bono service through the Houston Volunteer Lawyers Program (HVL), volunteer mediation services through the Dispute Resolution Center (DRC), and legal writing in The Houston Lawyer, the HBA’s professional journal. 32
Formerly with Baker Botts, the Hon. Jeff Brown of the Supreme Court of Texas, joined firm members in accepting the award for Outstanding Contribution to the HVL by a Large Firm. Also pictured, from left: Bill Kroger, Macey Reasoner, Keri Brown, 2016 HBF Chair Denise Scofield, Travis Sales and John Porter, partner in charge of the Houston office of Baker Botts L.L.P.
Barrett Reasoner, left, interviews his father, Harry Reasoner, on his career and the importance of pro bono service.
Scofield presented the award for Outstanding Contribution to the HVL by a Mid-size Firm to Brooke Sizer, left, and Ellie Natenberg on behalf of Gray, Reed & McGraw LLP.
Latosha Lewis Payne, Amy Dinn and Samantha Trahan accepted the award for Outstanding Contribution to HVL by a Small Firm on behalf of Trahan Dinn Kornegay Payne LLP.
Rachael Compofelice, left, and Karen Jones accepted the award for Outstanding Contribution to HVL by a Corporation on behalf of CenterPoint Energy, Inc.
Ryan J. Lynch of Latham & Watkins LLP was one of two attorneys honored for Outstanding Contribution to HVL by an Individual. Also honored was Kenneth D. Kuykendall of Royston, Rayzor, Vickery & Williams, L.L.P. who was unable to attend.
Nick Hall, executive director of the Dispute Resolution Center, left, joined in congratulating Jon Elliot King for Longevity of Exemplary Service to the DRC and Austin M. Oâ€™Toole, right, for Outstanding Volunteer Contribution to the DRC.
Randall O. Sorrels of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz, was honored as the author of the Outstanding Legal Article published last year in The Houston Lawyer, along with former associate Eric K. Gerard, who now practices in Florida. thehoustonlawyer.com
32nd HBA John J. Eikenburg Law Week Fun Run Benefits The Center
he HBA John J. Eikenburg Law Week Fun Run on March 11 benefited The Center, a nonprofit agency that provides opportunities that promote individual choice, personal growth and community involvement for persons with developmental disabilities so they may reach their maximum potential. Over the life of the race, the HBA Fun Run has raised well over $1,300,000 in contributions to The Center. Nearly 600 runners and walkers partici-
Runners start the 8K race.
pated in the event in downtownâ€™s Sam Houston Park. Named for the HBA president who founded the race in 1985, the John J. Eikenburg Law Week Fun Run is truly a team effort that involves many months of planning and coordination. Special thanks to race directors Chevazz Brown, Cassandra McGarvey, and Zach Wolfe. Photos by Anthony Rathbun Photography.
HBA president, Neil Kelly, presents a medal to a young runner in the 1K Childrenâ€™s Race.
Members of the Eikenburg family attended Fun Run Co-chairs Zach Wolfe, Cassandra to support the race, named for the late McGarvey and Chevazz Brown. John J. Eikenburg, who started the event as HBA president.
The Fun Run is part of the Houston Area Road Runners series of races. 34
Grand Old Grizzly donated their time and Residents of The Center supported the talent to the race. race by participating in the family walk.
HBA Fun Run Sponsors Gold Sponsor Anne & Don Fizer Foundation BWA Video, Inc. Exxon Mobil Corporation Koons Fuller Family Law Isabelle & Eric Mayer Serpe, Jones, Andrews, Callendar & Bell, PLLC Vinson & Elkins LLP Silver Sponsor Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Alvarez Stauffer Bremer PLLC Andrews Kurth Kenyon LLP Archer Solutions Baker Hostetler BDO Beck Redden LLP Berkeley Research Group, LLC Jane & Doug Bland BoyarMiller Bracewell LLP Johnny & Nataya Carter Dentons US LLP Carol & Michael Goldberg HBA Family Law Section HBA Real Estate Section Hirsch & Westheimer, P.C. Jenkins & Kamin, L.L.P. Johnson, Trent & Taylor, LLP Jones Day Judge Kyle Carter - 125th District Court Judge Mike Engelhart - 151st District Court Justice Harvey Brown, 1st Court of Appeals Judge Wesley Ward, 234th District Court King & Spalding LLP Law Office of Diane St. Yves, PLLC Legal Directories Publishing Company, Inc. Locke Lord LLP Matthews & Associates Morgan, Lewis & Bockius LLP
Nathan Sommers Jacobs, A Professional Corporation Nell McCallum Reporting & Records Shook Hardy & Bacon, L.L.P. Sidley Austin LLP South Texas College of Law Houston Strasburger & Price, LLP Tindall England PC Friends of Fun Run Amicus Search Group Chris Bryan & Trey Peacock Crady, Jewett & McCulley, LLP Joe & Amy Grinstein Houston Bar Association Auxiliary Charitable Fund, Inc. Alicia & Shawn Raymond In Kind Sponsors Buffalo Specialties The Coca-Cola Company Doug Teel Faust Distributing Company & Bob Stokes Gainsborough Waste Texas Outhouse Inc. Grand Old Grizzly HARRA Todd Lonergan Nothing Bundt Cakes Run Houston Timing RunSignUp VERTS Mediterranean Grill Watermill Express Security Services Donated by Constable Alan Rosen and his staff from Precinct 1 Master of Ceremonies Services donated by long-time emcee, Lee Jolly.
To view complete race results and more photos, visit http://bit.ly/2o0073n
Houston L aw yers Who Made a Dif ference
Hon. Thomas J. Stovall, Jr. By The Hon. Mark Davidson
t is difficult for even the best of trial judges to make a lasting impact on the community or the legal system they serve. The job of a trial judge is to hear cases, all of which are important to the individuals involved, and rule in conformity with the law. This is a job that leads to constancy and anonymity. A judge can step out from this shell and make a difference, while staying true to their oath of office, by attempting to change the system through the administration of the judicial system. No one in Harris County history has done this more than Judge Tom Stovall. Early in his judicial career, he thought that there was no reason that jury charges should contain dozens of questions, most of which were duplicative or would turn out to be moot. He developed two ways to streamline jury consideration of civil cases – the broad form submission and predication of any obligation to answer some questions on how earlier questions are answered. We take those charges for
granted today, but most challenging job few remember Judge at a most challenging Stovall’s role in the initime. He also served tiation of the practice. on national boards of His greatest innojudges, both importing vation was creation of to Texas and exporting a system of administo other states some tering jury rooms. In of the innovations in most counties in our our system of jusnation, jury duty is tice. In each of those a one- or two-week jobs, he excelled. He process of waiting for served as a mentor to courts to need jurors, three generations of and jury panelists beyoung judges, most of ing used in trial after whom are now senior trial. Stovall designed Hon. Thomas J. Stovall, Jr. judges. His influence the “one day, one trial” method of jury on our courts will go on for years. For summons, in which jurors are either every case that uses a jury or a civil jury on a jury after one day, or they are discharge, Tom Stovall’s legacy continues. charged. In urban counties, this system For our litigants and our jurors, Judge saves thousands of hours of time for Stovall made a difference. citizens called to serve our court sysThe Hon. Mark Davidson is an MDL judge tem in a most important role. and judge (retired) of the 11th District Stovall served as the AdministraCourt. His column for The Houston Lawtive Judge of Harris County and as the yer focuses on Houston attorneys who have Judge of the Second Region during his had significant impact on the law, the legal years on the bench. No one ever quesprofession and those served by the law. tioned his impartiality or integrity in a
OFF THE RECORD
By Erma Bonadero
he day-to-day practice of law in the Harris County juvenile courts is not for the faint of heart. The majority of children and family members who find themselves at the Juvenile Justice Center are not there under happy circumstances, and tensions run high. Attorneys that have worked for years in this stressful, and often heartbreaking, environment need an outlet to release tension and have fun during down time. Over the years, The Houston Lawyer has highlighted myriad ways that local attorneys relax and focus on more creative pursuits. Some do it by exercising, fishing, reading—and some by woodworking and collecting toy trains. Huh? Meet Attorney Brian Fischer. Brian is one of the many attorneys who help Brian Fischer children and families through the juvenile court system. When he is not at the courthouse, Brian can usually be found at home with his lovely wife, Susan, indulging in one of his two greatest passions—woodworking and collecting toy trains. A Carpenter is Born As a middle-schooler in Waterbury, Connecticut, Brian attended several years of woodshop classes. That early training, combined with years of additional learning and practice, led Brian to a lifelong passion for woodworking. Brian’s woodworking talent and creativity is remarkable. He added on an entire extra room at the back of his home, and built a “hobby shed” in the backyard. He has also designed and constructed numerous handsome furniture pieces. As we walked through his comfortable home, Brian pointed out the various pieces he has made, including an impressive, large buffet table with hutch, and a corner armoire. When Susan requested a kitchen remodel some years back, Brian did not pick up the phone and call a contractor; rather, he purchased a load of birch and got to work constructing and installing kitchen cabinetry himself. In the master bedroom, I saw more of his beautiful designs, including a maple wood king-size Victorian garden gate bed and matching armoire with raised panel doors. Next, Brian showed me a former bedroom that he had convert-
ed into a study. Custom cabinetry featuring push-button doors, and a plethora of full-extension drawers with dovetailed grooves encircle the room. Lastly, our tour progressed to the backyard, where Brian led me to a small freestanding building, (which, of course, he built, along with some help from his son, Brandon). When you step through the front door, you find yourself transported into a magical diminutive world… “Papa Choo-Choo” What you see when you step inside are toy trains—dozens of them — displayed on rows of shelving which cover each wall. But the best part is the miniature scene which encapsulates the room, a scene which Brian affectionately calls “Waterbury, New Haven, and Elsewhere,” (as an homage to his home state of Connecticut). The piece de resistance occurs when Brian flicks a switch, causing the tiny train to burst into life, and begin circling the track. It chugs along merrily through bucolic small-town scenes comprised of buildings, vegetation, hills, tiny plastic people and cars. It is difficult to decide which vignette is more charming; the drive-in movie theater atop a grassy hill (with a motion picture flickering on the screen), or the colorful, flashy, whimsical carnival scene, complete with a Teacup Ride and Ferris Wheel. Brian’s love of toy trains began when he was a child, when his father set up a Lionel train set in their basement. Years later, when Brian’s parents grew older and decided to move to Florida, they gave Brian the family train collection. Brian has continued the tradition of collecting Lionel trains to this day. It is such a part of his identity that his grandchildren—who, naturally, are delighted with Brian’s hobby—call him “Papa Choo-Choo.” So if you see Brian in the halls of the Juvenile Justice Center, be sure to stop and tell Papa Choo-Choo hello. If you’re lucky, maybe he’ll let you come visit “Waterbury, New Haven, and Elsewhere” one day. Erma Bonadero is a real estate advisor with Heritage Texas Properties and a member of The Houston Lawyer editorial board. thehoustonlawyer.com
Committee Promotes Literacy & Reading Initiatives By Lara Price
The Houston Lawyer
ince 1987, the Lawyers for Literacy (LFL) Committee has worked to promote literacy and reading initiatives through the work of its members. From supporting the Houston READ Commission to adopt-aschool programs to adult spelling bees to supporting HBA initiatives, such as veteran assistance, the LFL committee historically has participated in the community’s efforts to eliminate illiteracy and support reading programs in Houston and the surrounding area. LFL kicks off the HBA’s bar year with its annual fall book drive. It is a tremendous effort requiring the work of committee members, volunteers, and staff to solicit and receive donations, sort thousands of books, and then distribute the books to each year’s recipients. This year, LFL collected an impressive 27,480 books, which were distributed to 34 local organizations and charities, including community shelters, hospitals, missions, veterans’ residential facilities, and literacy programs throughout the area. The committee recruited 139 offices (including firms, corporations, law schools, courts, legal organizations, and individuals) to participate and pick up donations from 44 locations. Committee members and other volunteers spent 134 hours sorting books for distribution. This was the fourth largest col-
lection effort in LFL’s history. Even though LFL usually is known for its fall book drive, it continues its work throughout the bar year. LFL leads the HBA’s Constitution Day readings at local public and private elementary schools. In February 1952, Congress designated September 17 as a day to commemorate the adoption of the U.S. Constitution in 1787. In 2004, Congress established the present holiday with an act mandating that all publicly-funded educational institutions, and all federal agencies, provide educational programming on the history of the American Constitution on that day. On Constitution Day 2016, the LFL committee members and volunteers read Hans Wilhelm’s book Buddy for President a total of 204 times to 8,751 students in kindergarten through third grade at 103 schools in 20 school districts in the Greater Houston area. LFL also supports the work of other HBA committees by assisting the Law Week Committee with Law Week book readings at local elementary schools every April and May and by staffing HBA LegalLine. Lara Price serves as Co-Chair for the 2016-2017 HBA Lawyers for Literacy committee along with Dana Levy Kelly. She is a shareholder at Sheey, Ware & Pappas, P.C. where she practices in the products liability and professional liability sections.
Volunteers from the Lawyers for Literacy Committee, the legal community, and even businesses such as EOG Resources, Inc., the HBA’s neighbor in Heritage Plaza, join in sorting books during the annual fall book drive.
in pro f e s s io n ali s m
The Hon. Ravi K. Sandill Judge, 127th District Court
When I think about professionalism, the first word that comes to mind is respect. Respect Merriam-Webster defines respect as a “high or special regard.”1 It is a concept that we learn from a very early age. “Respect your elders,” “respect your teacher,” “respect authority.” As we get older and more removed from our school days, we don’t hear the term as often, but it is no less important. Respect does not mean that we must agree or that we must not speak our own minds. It allows for an exchange of ideas and for disagreement. I often speak to juries about the concept of respect during voir dire. Respect is more than just tolerance; it is the acknowledgment that a person, place, or an idea has value. As lawyers, we are foot soldiers for justice, both in the courts and in our communities. Justice depends on a system of universal respect—for laws, for institutions, and for people. Thus, each of us must strive to weave respect into our communities and into all facets of our professional lives. Community Although respecting our communities sounds simple, it can be harder to achieve than we realize. From our family lives, to our professional lives, to our civic lives, we are constantly interacting with various communities. As Houstonians, our interactions take place in the most diverse urban county in the country. We are constantly engaging with people of varying ethnic backgrounds, political views, religious beliefs, educational levels, and a multitude of other characteristics.
Practicing respect with intention, by recognizing that all members of our communities have value, helps bring our communities closer together and allows us to develop a more just society. Profession Law is a noble calling. We are the protectors and defenders of the Constitution and of the laws of our great state and country. We are bound together by the same oath to conduct ourselves with integrity and civility and to do what is in the best interests of our clients. Far too often, however, we lose sight of our common purpose. As practicing lawyers, we all have value to our families, our profession, our employers, and our clients. Whether we practice transactional work or resolve disputes, in private practice or in public service, each of us has earned respect. We must recognize that a lawyer’s area of practice does not elevate or diminish the level of respect she is due. To that point, opposing counsel is as deserving of your respect as co-counsel. There are many simple ways to practice respect as lawyers - return phone calls, acknowledge e-mails, shake your opponent’s hand, congratulate other counsel on a job well done, gracefully receive adverse rulings—the list goes on. Making a concerted effort to give respect will undoubtedly increase the respect you receive. And, if we fail to respect those of our own profession, we cannot expect our profession to be respected by others. Endnotes 1. “respect.” Merriam-Webster.com. 2017. merriam-webster.com (04/10/17).
SCOTX Finds No Governmental Immunity Where Government Received a Benefit By Raymond L. Panneton
The Houston Lawyer
n a case reversing the Beaumont Court of Appeals, the Texas Supreme Court held that the South East Texas Regional Planning Commission waived its Chapter 271 governmental immunity and was subject to suit by Byrdson Services, LLC. South East Texas Regional Planning Commission v. Byrdson Services, LLC d/b/a Excello Construction, LLC, Case No. 15-0158 South East Texas Regional Planning Commission (the “Commission”) was a local governmental organization receiving federal funding to assist with hurricane relief efforts. Pursuant to a contract between the Commission and the State of Texas, the Commission was charged with providing disaster relief and homebuilding efforts within the state. In furtherance of this mission, the Commission subcontracted this work through, in part, Byrdson Services, LLC (“Byrdson”). During the contractual relationship, a dispute arose among the parties, most notably regarding the quality of work being performed by Byrdson and the payment due therefrom. Byrdson subsequently filed suit against the Commission for payments allegedly due to Byrdson under the contract. At the trial court, the Commission filed a plea to the jurisdiction, alleging governmental immunity. In response, Byrdson maintained the Commission waived their governmental immunity pursuant
to Chapter 271 of the Local Government Code, which waives immunity for a contract when an entity provides “goods or services to the local governmental entity.” The trial court was unpersuaded by the Commission’s arguments and denied its plea to the jurisdiction. The Commission filed an interlocutory appeal, and the Beaumont Court of Appeals reversed, holding the Commission’s governmental immunity had not been waived. In an opinion authored by Justice Willett, the Texas Supreme Court reversed the Beaumont Court of Appeals, finding the statutory-immunity waiver applied. Specifically, the Court noted that while the primary beneficiaries under the Commission’s program were Texas homeowners, they were not the only beneficiaries. The contract between the Commission and Byrdson also benefited the local governmental entity—the Commission. Because the Byrdson contract also provided for goods and services to the Commission, Chapter 271 Immunity applies, and the case may proceed to trial on the merits. Raymond L. Panneton is a litigation associate at Hendershot, Cannon, Martin & Hisey, PC and is a member of The Houston Lawyer editorial board. He can be reached at rpanneton@ hcmhlaw.com.
SpongeBob’s “Krusty Krab” Restaurant Worthy of Trademark Protection By Craig Stone and Maryann Zaki
sk any five-year old and they would likely leap at the opportunity to visit the famous restaurant known as “The Krusty Krab,” the fictional restaurant that has been featured in 166 of the 203 episodes of Nickelodeon’s successful series, SpongeBob SquarePants. A little over a year ago, in Viacom International Inc. v. IJR Capital Investments, LLC, Viacom International Inc. (“Viacom”), who owns the Nickelodeon network, sued IJR Capital Investments, LLC (“IJR”) after IJR proposed to open a real restaurant called “The Krusty Krab,” and filed a federal trademark application for the same name without Viacom’s permission. Viacom initiated a suit against IJR in the Southern District of Texas, asserting nine claims under the Lanham Act, and state law. On January 11, 2017, Judge Gray Miller ruled that Viacom stated viable causes of action against IJR, and that while fictional, “The Krusty Krab Restaurant” has achieved sufficient popularity to entitle it to trademark protection under the Lanham Act. Regarding Viacom’s claims for trademark infringement, the court ruled that Viacom had a valid mark based on its use of the mark in commerce, and evidence of Viacom’s ownership through its sales and licensing of consumer products. While Viacom had not filed a prior trademark application for “The Krusty Krab,” the court reiterated Fifth Circuit law that ownership of a mark is established by use in the market, not by registration. Accordingly, Viacom’s lack of a federal registration for its mark did not rob it of protection, given that Viacom has used “The Krusty Krab” continuously since 1999 when the restaurant was first featured in the SpongeBob series. IJR argued that Viacom could not have a trademark right in the name of a fictional restaurant used in a cartoon. The court disagreed and held that an element
of a television show can indeed be protected under trademark law, and “The Krusty Krab” met the standards to qualify as a distinctive mark by acquiring secondary meaning, i.e., consumers have come to identify “The Krusty Krab” with the SpongeBob series. In its ruling, the court found: • Trademark protection extends to the specific ingredients of a successful television series, including symbols, design elements, and characters which the public directly associates with the plaintiff or its products. • Evidence demonstrating the popularity of “SpongeBob SquarePants,” established that “The Krusty Krab” has acquired sufficient distinctiveness, making it eligible for protection. • Viacom presented compelling evidence that there is a likelihood of confusion between Viacom’s and IJR’s marks, given the strength of the mark (due to its long use and unconventional spelling of “Krab, the restaurant’s owner “Mr. Krabs,” and its featured menu item, the “Krabby Patty”), as well as the identical spelling and pronunciation of Viacom and IJR’s marks to identify a restaurant. • Consumers may mistakenly believe that IJR’s restaurant is an officially licensed or endorsed restaurant of Viacom’s, similar to how Viacom owns and licenses Bubba Gump Shrimp Co., the seafood restaurant inspired by the film, “Forest Gump.” • Viacom’s sales and forms of advertising are likely to overlap with IJR’s target geographic areas and customer base. • Good faith is not a defense to trademark infringement. If potential purchasers are confused, no amount
of good faith can make purchasers less confused. IJR’s awareness of Viacom’s use of “The Krusty Krab,” weighed in favor of finding a likelihood of confusion. • 30% of respondents in a national survey thought that a restaurant called “The Krusty Krab” would be sponsored by Viacom. In light of the above findings, the court ruled that Viacom was entitled to summary judgment on its trademark infringement claims. With regards to Viacom’s federal and state dilution claims (i.e. that IJR’s use of “The Krusty Krab” mark would dilute Viacom’s mark), the court ruled that while imminent infringement of the use of a mark may render a trademark infringement case ripe for granting relief, there are no cases that address impending use in dilution cases. Because IJR has not yet used “The Krusty Krab” in commerce, Viacom’s dilution claims were unripe. For now, prospective brand owners might want to proceed with caution when considering the use of or applying to register fictional names from popular television shows or movies. However, you might not have to hang on forever. On February 3, 2017, IJR filed a request for a transcript of the motion for summary judgment hearing which indicates that IJR might be preparing to appeal this recent decision. Craig Stone is senior counsel, Intellectual Property for Phillips 66 in Houston. He currently serves as chair of the IP Law Section’s Trademark Committee and is a Houston Bar Fellow. Maryann Zaki is a business and commercial litigator at Eversheds Sutherland (US) LLP. She handles business litigation disputes in Texas state and federal courts..
Ethical Obligations Extend to “Hidden” Data By Cassie McGarvey
ypothetical: You represent a client in a real estate transaction. While drafting the terms sheet with your client, you have been emailing a Microsoft Word Document back and forth. Both you and your client edit and make comments to the document. To expedite negotiations, you agreed to send the terms sheet to opposing counsel in Word formatting so that you can track edits to the terms. Does this situation present an ethical issue? By sending the terms sheet in Word format, have you potentially disclosed attorney client communications and confidential client communications? Can opposing counsel go through the document to review your comments and edits? Answer: YES! In the digital world, we leave footprints everywhere—from the document edits to our website browsing history. When we edit documents, the word processor records a history of our changes and stores information such as document author, editors, date of last editing, and total editing time. When you use track changes and comments, the amount of data stored in the document increases. Even when you cannot see the comments and the tracked changes on your screen, the information may be embedded (or hidden) in the file and capable of extraction through the word processor or other program. This type of data is called “metadata.” In short, metadata is data that describes other data and gives additional information. In Ethics Opinion 665, the Texas Center for Legal Ethics recognizes that confidential Continued on page 45 thehoustonlawyer.com
Child Abuse and Neglect Cases: A Comprehensive Guide to Understanding the System By Travis Cushman American Bar Association, 2016 Reviewed by Anietie Akpan
The Houston Lawyer
ociety has created many boundaries that separate us as people, such as religion, political beliefs, and social ideologies. However, there is one universal belief that binds us all at the very core of our being – the inherent need to protect our children. Shielding children from harm is an inherent duty that exists in all of us; human nature dictates that we must protect those who do not have the ability to protect themselves. As I look back on my first year as a family law associate, I realize in retrospect that my understanding of family law was quite narrow. The bread-and-butter of most family law firms is divorces, child support, and child custody cases; I went through this past year believing that those would be the majority of cases I would be working on. When my firm received its first adoption case based on a
CPS investigation however, I knew it was time for me to get properly acquainted with child protective laws and how those intersect with the practice of family law. Child Abuse and Neglect Cases was written by Travis Cushman, an attorney who has represented over 200 abused and neglected children in Montana courts. Cushman has also served as a Special Prosecutor against accused parents, and has also served in Federal District Court as attorney ad litem representing child victim witnesses. Child Abuse and Neglect Cases, in short, is a comprehensive guide for anyone – law practitioners or laymen – who is interested in learning how the child protection system works. It is divided into 19 (!) brief, distinct sections including but not limited to: “Danger Assessment – To Remove or Not to Remove,” “Show Cause Hearing,” “Guardianship Hearing,” and “Termination of Parental Rights.” The sections narrate how a child protective case is litigated – beginning from when an initial CPS report is made, and ending with a discussion as to how to appeal a CPS court’s final judgment. One of the great parts about this book is that it is truly a comprehensive read. Each section is broken down to smaller segments, in which the author encapsulates each section’s issue (e.g., Is this a vulnerable child and can the child’s parent’s or caregivers function with the minimum ability required to safely raise the child?), the parties and duties involved with the particular issue, as well as a list of help aids and additional readings regarding the same. Moreover, each section ends with a list of Questions to Answer that engages the reader to practically apply the law to a series of hypothetical anecdotes presented by the author.
One caveat however, is that the author is an attorney who practices almost exclusively in Montana. Although there are several cites to federal law in this book, there are as many references to Montana law as well. This of course does not take away from the book’s invaluable guidance on understanding the child protective system. Rather, it is a gentle warning that one should supplement their study of this book with Texas case and statutory law, the proposed and adopted rules of the Texas Department of Family and Protective Services, as well as literature from CPS agencies (such as Texas CASA) for a holistic overview of practicing CPS law specifically in the State of Texas. This was an easy read and an incredible educational tool for someone like me who is new to CPS and family law, but would also be a valuable resource for longer-practicing attorneys who may need a refresher in this area. Anietie Akpan is a first-year associate at Sinoski & Associates, PLLC, a family law firm with offices in Spring, Texas and the Galleria.
When Big Law Goes Wrong By Ron Liebman Blue Reader Press, an imprint of Penguin Random House LLC Reviewed by Kimberly A. Chojnacki
on Liebman’s Big Law is the (hopefully) tall tale of a newly minted Big Law partner who gets caught up in a web of fraud, blackmail, and competing egos. The novel’s protagonist, Carney
Blake, has diligently escaped his family’s fate in Hell’s Kitchen in New York (an alcoholic father and a brother with posttraumatic stress disorder remain) to attend law school, and ultimately joins Big Law aspiring to earn more money than he can fathom. As with most aspirations, Blake’s comes with a steep price. Obviously, “Big Law” represents the quintessential multi-national law firms and employment within comes with the attendant grueling hours, steep paychecks, and cutthroat politicking. Blake immediately finds himself in the thick of it—and more—when his firm’s chairman assigns him to a contingency fee case that never quite adds up. Un-
beknownst to him, Blake’s new assignment involves the prior creation of a secret IPO, a hostile takeover, and fraud as far away as India. Blake works diligently, remaining unaware of the underlying fraud, until he is arrested by the Federal Bureau of Investigation and tried for allegedly having some hand in it. The swirl of deceit, mistrust, and leveraging comprises the thrust of the novel and keeps the pages turning. Liebman, a former clerk to a federal judge, assistant U.S. attorney, litigation partner in a boutique firm, and senior partner in Big Law, convincingly walks his reader through the minefield that Blake unwittingly is forced to navi-
gate. Using the protagonist as a narrator, Liebman seamlessly explains complex legalistic concepts and procedures throughout, keeping the story flowing and the audience up to par on the legalese. In the end, Liebman’s technical prose successfully guides the reader through the hoops of litigation, the obstacles of Big Law lawyering, and the details of federal procedure without sacrificing the suspense of Blake’s fate. Blake’s experience is compelling and one only hopes it is an outlier in an otherwise drab world of litigation deadlines, billable hours, and run-of-themill lawyerly egos. That being said, it is a quickly moving and exciting story worthy to lose yourself in when the days grow long with the lawyerly grind. Kimberly A. Chojnacki is an associate of Zeidman Spencer Beverly & Holt, LLP and practices commercial litigation.
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LEGAL TRENDS From page 41
client information and privileged attorney-client communications can be found in metadata. The Opinion squarely imposes an obligation on attorneys, through the duty of competence, to understand that: (1) metadata is created and stored in electronic documents; (2) metadata can include confidential information; (3) document recipients can access the metadata; and (4) actions can be taken to prevent or minimize the transmission of metadata. While the Opinion states lawyers must use “reasonably available technical means” to remove metadata before sending documents, it fails to give any instructions on how to do this, other than the obvious suggestion of only using hard copies or fax. There are, however, electronic options. Microsoft Word: Metadata can be removed from a Microsoft Word document by using Document Inspector, which is accessed through the “File” tab. Word will give you options as to what data you would like to remove. Note, you may need to inspect the document each time you make revisions. Adobe Acrobat (PDF Format): Converting a Word document to PDF does not remove all the hidden data. While track changes and comments are removed, other data may still exist. Also, if you have edited the PDF, such as adding redactions, the redaction boxes may be removable allowing confidential information to be disclosed. The best practice is to use the Sanitation Tools in Adobe. These tools are found under the Protection panel which is located in the Tools pane. Competence as an attorney now requires you to use the above features if you are transmitting documents electronically. If you or your staff do not feel comfortable with these programs and procedures, then best practice is to only send documents through facsimile or hard copy. The Opinion confirms it is not an ethical violation for an attorney to mine a document for metadata. It is acceptable for opposing attorney to review your electronic document to uncover any hidden
information it may contain, including confidential client information. Further, an attorney is not obligated to notify any person concerning the metadata it obtained. Notably, this approach differs from Model Rule 4.4(b) of the American Bar Association which requires an attorney to notify the sender of receipt of the metadata if the attorney knows or should know that it was inadvertently sent. Under the Texas rule, the only obligation imposed upon the attorney is to not make a statement that would be false or misleading in light of the metadata received. This Opinion only applies to documents produced outside the course of
discovery. With the limited discussion regarding mining for metadata, numerous questions remain about how attorneys can use information inadvertently disclosed in metadata. For now, best practice is to ensure no metadata leaves your office by using the appropriate electronic tools or only sharing documents through facsimile or hard copy. Cassie McGarvey is a partner with Sanders Willyard LLP. Her practice focuses on real estate and commercial litigation. She has special interest in the intersection of technology and the law and advises clients on ethical use of technology.
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