A Hurricane of Equality Hurricane Harvey and the Courts: Now What? Wading through Hurricane Harvey Inverse Condemnation Claims Hurricane Harvey and Its Implications on Houston Real Estate Practice and Probate Quick Tips to Help Your Client Help Themselves After the Storm 68th Harvest Celebration
Volume 55 â€“ Number 3
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contents November/December 2017
Volume 55 Number 3
FEATURES of Equality 10 AByHurricane Steve Wisch Harvey and the 12 Hurricane Courts: Now What? By Daniel D. Horowitz, III
through Hurricane Harvey 14 Wading Inverse Condemnation Claims By Benjamin Roberts
Harvey and Its 18 Hurricane Implications on Houston Real
Estate Practice and Probate By Jason D. Kraus
Tips to Help Your Client 22 Quick Help Themselves After the Storm By Robert Johnson
the Aftermath of 26 InHurricane Harvey, Pro Bono Work Rebuilds Houston By Raymond L. Panneton
Learned from The 30 Lessons Frontlines of Pro Bono Legal Aid
During Hurricane Harvey By Keri D. Brown
Heroes: Volunteers Step 34 Legal Up to Help in Countless Ways after Hurricane Harvey
Harvest Celebration Raises 40 68th $735,200 for Pro Bono Legal Services
HBA LegalLine Provides 42 Special Answers, Resources after Harvey By Tara Shockley
The Houston Lawyer
Cover: Photo of flooding near downtown Houston by Preston Hutson, of counsel at Mehaffy Weber and an associate editor of The Houston Lawyer. The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: email@example.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ÂŠThe Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.
contents November/December 2017
Volume 55 Number 3
departments Message 6 Presidentâ€™s In a Time of Great Need By Alistair B. Dawson
the Editor 8 From Houston Lawyers: #HoustonStrong By Farrah Martinez
Lawyers Who 43 Houston Made a Difference
Captain John R. Burkett
By The Hon. Mark Davidson
Spotlight 44 Committee HBA Continuing Legal Education
Sets the Stanad
By Robert Ford
in professionalism 45 ATheProfile Honorable Sylvester Turner Mayor, City of Houston
Trends 46 Legal How Wide are the Arms of State
By Jennise Stubbs and Sonila Themeli ReviewS 47 Media Oil Capital: The History of
American Oil, Wildcatters, Independents and Their Bankers Reviewed by Owen L. Anderson
Solo Lawyer by Design, a Plan for Success in Any Practice
Reviewed by Raymond L. Panneton
The Houston Lawyer
48 Litigation MarketPlace
president’s message By Alistair B. Dawson Beck Redden LLP
In a Time of Great Need
n behalf of the entire HBA and those whom we this storm. While the flood waters have receded, the damage serve, I would like to thank each of you who helped was severe, and it will be some time before complete order is in the aftermath of Hurricane Harvey. I am so restored. We all need to be patient as our neighbors and colproud of how the legal community came together leagues deal with the re-building process. In particular, the in Houston to help those in need. We donated our lawyers who work in any of our courthouses must be patient as time, efforts and money in so many ways. Neighbors helped the County determines how best to restore and repair the courtneighbors who were flooded. Lawyers helped those who were houses that were damaged by the storm. As almost all of you forced out of their homes and were in shelters. know, the Criminal Justice Center has been shut We helped with donations of food, clothing and down since the storm. All the criminal courts money to the tens of thousands of our neighbors have been moved to other courthouses. Kudos who needed our help. I had the privilege of visto Judges Robert Schaffer, Sylvia Matthews, Suiting the shelters and I saw first-hand how our san Brown and David Farr for the work that they On behalf of collective efforts made a difference in the lives did in dealing with this crisis. Because of their of those who were dealing with the effects of efforts and the willingness of the other judges to the entire HBA this horrible storm. We have helped more than “buddy up,” all of our courts are up and running, 10,000 people and their families deal with a real and we have jury trials again. But the Criminal and those whom and significant crisis in their lives. In some imJustice Center is likely down for at least a year. we serve, I would portant ways, we have helped restore order to And getting juries will be a challenge until we their lives. Lawyers and law firms also provided get a new Jury Assembly Plaza. So, all of us who like to thank office space and housing to those who lost their frequent the Civil Courthouse must be patient each of you homes and offices because of the storm. We as we deal with the aftermaths of this disaster. helped our neighbors in a time of great need. I am in the process of meeting with the Harwho helped While we should pat ourselves on the back, ris County Commissioners to encourage them much work remains to be done. Hurricane Harto develop a long-term plan for our courthouses. in the aftermath vey resulted in the largest disaster recovery efI believe we need to move some of the volume of Hurricane fort in the history of the United States. Hurriof people out of the Criminal Justice Center to cane Harvey has already generated approximatea new building. I am hoping that the County Harvey. ly 900,000 FEMA applications. It is estimated will develop a long-term plan and that the resthat the recovery will cost more than $20 billion. Our work is toration of the Criminal Justice Center will take that long-term not done. plan into consideration. I will keep you posted on these develFirst, there will be a substantial number (thousands, I preopments. dict) who will need pro bono legal representation as a result Finally, I extend my heart-felt thanks to all who supported the of Harvey. They will need help with their insurance company, Harvest Celebration. Because of your support, we were able to with FEMA appeals, with their landlord, dealing with lost legal raise approximately $735,000. Those funds will go to Houston documents and in many other ways. We need lawyers to volunVolunteer Lawyers, which provides pro bono legal aid in Housteer to help these neighbors of ours. Remember that feeling that ton. Those funds will be used to ensure that as many Houstoyou had right after the storm—that deep-rooted desire to help, nians as possible have access to justice. Once again, Houston to volunteer, to contribute? I urge you to find that feeling again. lawyers are helping those in need. Please go to www.makejusticehappen.org and sign up to take a Like all of you, I am Houston Proud and we are Houston case. Your help is needed now more than ever. Strong. But our work is not over. We need to keep up the great Second, we all need to be patient as our city recovers from work and get to the finish line.
The Houston Lawyer
from the editor By Farrah Martinez Farrah Martinez, PLLC
Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson MehaffyWeber PC
Jeff Oldham Bracewell LLP
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Work Law Firm
he Houston Lawyer: Hurricane Harvey Edition is the issue we never wanted to publish. In fact, the Editorial Board strategically arranged this bar year well in advance—we had a plan for each issue. As a board, we never dreamed a hurricane would dump 33 trillion gallons of water into our city, that 75 lives would be lost, and thousands of homes and businesses would be devastated. Nevertheless, here we are. Instead of focusing solely on the devastation, this issue looks to solutions, solutions that came through the strength of neighbors, lawyers, friends, associations and strangers from across the country that rolled up their sleeves to use their skill set and whatever resources they had at their disposal to help. Local and state bar associations, as well as individuals and law firms, offered assistance. Some sent monetary donations to the Houston Bar Foundation’s Harvey Relief Fund for attorneys, some sent gift cards for attorneys in need, and others offered to provide legal advice on FEMA and other federal flood-related issues through the HBA’s special LegalLine programs. This outpouring of help has overwhelmed our city and this region, pulled us out from the pit of despair, and set us on the path to recovery. Regrettably, several of our Editorial Board members lost their homes, but many still contributed in some way to the publication of this issue. I am grateful to serve with a board that is committed to serving the needs of its members and a bar president who encourages us to rise to every occasion. In this issue, Steve Wisch’s personal account of how he and his wife survived Harvey not only left me teary-eyed, but provided perspective and appreciation for what many of my friends and colleagues endured to survive. In spite of the devastation, Houstonians have exemplified strength, courage, the will to fight, kindness and, even in the midst of personal loss, selflessness and profound generosity. Next, the issue covers a range of legal articles to
help lawyers answer and navigate disaster recovery related topics, such as Daniel Horowitz’s informative piece, Hurricane Harvey and the Courts; Now What?, which details the damage to the Harris County courts, the Jury Assembly building and the county’s plan to adjust until repairs are complete. Benjamin Roberts’ article, Wading through Hurricane Harvey Inverse Condemnation Claims, outlines the potential legal remedies for those flooded by the Corp. of Engineers decision to release water from the Addicks and Barker reservoirs, causing intense flooding and destroying thousands of homes. Then, for those dealing with endless repairs, Danny Goldberg and David Berk’s piece provides practical advice for Helping Homeowners Enforce Contracts in a Post Storm Era. Jason D. Kraus’ article, Hurricane Harvey and its Implications on Houston Real Estate Practice, dives into the many erupting real estate issues. Robert Johnson’s piece provides an overview for consumers titled Quick Tips to Help Your Clients Help Themselves After the Storm. Next, Raymond L. Panneton’s article features the work of the Houston Volunteer Lawyers and the Lone Star Legal Aid, In the Aftermath of Hurricane Harvey, Pro Bono Work Rebuilds Houston. Keri Brown’s piece focuses on Lessons Learned from the Frontlines of Pro Bono Legal Aid. While lawyers are not superhuman, many are heroic and gave tirelessly of themselves as described in the vignettes featured in Legal Heroes: Volunteers Step up to Help in Countless Ways After Hurricane Harvey. These stories are reflective of the thousands of volunteers from all around the country that came to help our city and highlight the incredible work required to set up shelters, translate for those displaced, assist with legal needs, and care for displaced evacuees. Special thanks to articles editor Polly Fohn and guest editors Jeff Oldham, Avi Moshenberg and Kimberly Chojnacki for their countless hours of hard work and dedication to produce this remarkable issue. We are Houston Strong!
BOARD OF DIRECTORS President
First Vice President
Alistair B. Dawson
Warren W. Harris
Benny Agosto, Jr.
Neil D. Kelly
Second Vice President
Jennifer A. Hasley
Richard Burleson David Harrell
Diana Gomez Greg Ulmer
Collin Cox Hon. Erin Lunceford
DIRECTORS (2017-2019) Daniella Landers Lionel M. Schooler
editorial staff Editor in Chief
Farrah Martinez Associate Editors
Polly Fohn Jeff Oldham Hon. Jeff Work
Preston Hutson Taunya Painter
Anietie Akpan Kimberly A. Chojnacki Al Harrison Annalynn V. Hoffland Hon. Scott R. Link David T. Lopez Marni Otjen Hon. Josefina M. Rendón
Anna Archer Veronica Cruz Matthew J. Heberlein Kristen Lee Dana Lizik Avi Moshenberg Raymond L. Panneton
HBA office staff Executive Director
Director of Education
Director of Projects
Continuing Legal Education Assistant
Membership and Technology Services Director
Communications Assistant /Web Manager
Ashley G. Steininger
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By Steve Wisch
A Hurricane of Equality M
Fern and Steve Wisch
ore than three months have passed since the heavens opened and an ocean of water and wind washed away the life my wife Fern and I had come to love. Perhaps the worst rainstorm in American history and undoubtedly the most monstrous hurricane in Houston’s history wrought our city asunder. Early on the morning of Sunday, August 27, just after 5 a.m., I woke to a percussion of fierce, unremitting rain. As I rubbed sleep from my eyes, I swung my feet over the side of our bed, as I did every morning, to make my way to our bathroom and wash my face, my ritual of wakening to the day. That day, as my feet touched the hardwood floor and I leaned forward, I slipped, floundering in pooling brackish water, floundering like a beached whale. I crawled back to my bed; no friction aid-
ed me as I clutched the bed, and fought to stand, slipping twice before lifting myself up—a process that took about 15 minutes or more. With grey light filtering through the windows, I made my way to the bathroom sink and clutched the sink tightly while washing my face. Slogging through our hallway, I made my way to our living room. Our hardwood floors were now creaking as water soaked through my shoes, drenching my toes. As she had with every major storm, my wife prepared a week in advance, taking precautions and buying food, flashlights, paper towels—preparing for the worst, hoping for the best. But it all came hard and swift, with no mercy from the elements. About 11:30 a.m., as water rose in our home, we sat down on what had been a lovely crimson sofa, resting our feet on a coffee table. Fern’s eyes rimmed with tears. She shivered. I put my arms around her and kissed her cheeks and lightly kissed her lips and hugged her. She continued: “We’re going to die today. Look outside, the street is a river. I’m not a good swimmer. I ache and my back hurts.” I looked deeply into the eyes that had magnetized me with the most beautiful smile I had ever seen, 15 years before, when I first saw Fern’s picture – a smile that piqued my curiosity and more. My beloved’s beautiful face was now a mask of dread. She shivered again. “The bad news is that we are going to die. No way around it. The good news is that we are not going to die today.” So, I explained that we needed to get out of our home, find dry land, and somehow get to a shelter. The goal was simple: survival. The water in our home was at least four feet high and rising. As I stood on our porch, I yelled at the top of my lungs: “Is anyone here? Help!” Magically, one of our neighbors on the other side of the street came out from his remodeled garage apartment, walked down the steps and urged us to cross the
street. “Steve, you can make it. I’ll tell you where to step. We have room. Come over here.” Fern said: “Go without me. I won’t make it. I’ll fall.” “You’re not falling today. I’ll hold you up. I am stronger than I look and I am a strong swimmer. We have to go.” We made it. Our neighbors fed us. I fell asleep on their floor, and they invited us to stay with them and share their remodeled garage apartment. Just after 7 p.m., a rescue boat arrived in the area and a volunteer called out my name. “Is Steve Wisch here? Some guy named Seymore, says he’s a judge or something. Says he’s stranded.” On that long night, a rescue boat transported me and Fern and eight others, including a hound dog, to the Kroger parking lot at the corner of Westbury and South Post Oak. From there, after a 90-minute ride in an open flatbed National Guard truck, unyielding rain pelting all of us, we made our way to the George R. Brown. Our home and cars were destroyed. My library of many thousands of books perished; my most precious books, that I have read and reread, are gone forever. We are not alone. For me, the great lesson of Hurricane Harvey is that we are all vulnerable—no matter how high we rise in life, or how meager our achievements, or how hard we struggle—our lives may perish in a moment. It is our common humanity and decency that binds us together—through society, through sacrifice, through friendship, through the service of our leaders and first responders, and through the kindness of strangers. Steve Wisch is a Houston solo practitioner, whose practice is substantially limited to health, life and disability cases. Wisch previously was a reporter. He has practiced law in Houston since 1983 and has previously served on The Houston Lawyer editorial board. thehoustonlawyer.com
By Daniel D. Horowitz, III
Hurricane Harvey and the Courts:
Now What? I
n August, Harris County experienced the worst flooding event in U.S. history. Houstonians witnessed friends, families, colleagues, and for many, their own homes and businesses get destroyed. Included in the devastation were parts of the Harris County Justice Center. The Criminal Justice Center and the Jury Assembly Plaza suffered catastrophic damage from flooding, sewer backups and burst pipes. Both facilities are out of commission and will be for some time. Three courtrooms in the Juvenile Justice Center also suffered some damage, but not to the extent of the other buildings.
The aftermath of flooding in the Jury Assembly Plaza. Photos used by permission of Harris County District Clerk Chris Daniel.
The Criminal Justice Center Prior to the damage, there were 40 courts, the Harris County District Attorneyâ€™s Office, and numerous law enforcement divisions housed in the Criminal Justice Center. After the storm, all had to find a new home. Of the 40 courts, 16 are misdemeanor criminal courts and 22 are felony criminal district courts. Twenty of the felony district criminal district courts have been relocated to the Civil Courthouse, two felony district courts have moved into the Juvenile Courthouse, and all 16 misdemeanor criminal courts are now in the old Family
Law Center. The courtrooms have been consolidated in the Civil Courthouse to accommodate the felony criminal district courts. As a result, the 24 civil district courts are now combined in 12 courtrooms. Because of the lack of space, it is just not possible for all the courts to have hearings or trials at the same time. As is evident to all who have visited, the weak link in the Civil Courthouse is the elevators. Three of the six upper floor elevators are out of service. The good news is that, these elevators were scheduled to be up and running sometime in November. Once these elevators are back in service, the plan is to upgrade the other three elevators one at a time. Because of the elevator issues, an effort was made to put the busiest criminal courts on the lower eight floors which have a separate elevator bank. However, there may be times people need to use the lower level elevators and then take the stairs. Family Courts have also staggered their dockets to help with the congestion. The Jury Assembly Plaza The Jury Assembly Plaza took on 11 feet of water. As a result, all jury service was canceled until October 16, 2017. The County Administration Building at 1001 Preston is currently being used for jury assembly. One of the major issues with jury assembly is the number of jurors who can be summoned. The Jury Assembly Plaza could accommodate nearly 1,000 jurors, more than the temporary location. The Criminal and Family courts have priority for jurors, and while civil jury trials were delayed, they are now available. Impact on the Justice System According to Judge Natalie Fleming, CoPresiding Judge of the Harris County Criminal Courts at Law, one of the first impacts to the criminal justice system was the disruption of probable cause operations for roughly 24 hours during and immediately following the storm. â€œHearing Officers and court staff (as well as prosecutors and defense attorneys) were present the entire time, but
were not presented with any new defendants for about 24 hours, due to the flooding. We resumed those operations in the 49 San Jacinto facility across the street from the Criminal Justice Center. First appearance dockets with county court judges for new detainees resumed at 49 San Jacinto on August 29, 2017 and were held on Labor Day as well. Beginning on September 11, 2017, we have been operating eight County Criminal courtrooms in the old Family Law Center for daily bond dockets with each of the 16 courts having either an 8:30 am or a 12:30 pm docket. Jail cases are heard daily in a jail facility by these same judges on a rotating basis. Those proceedings are presented by video to the 17th floor of the civil courthouse for public access. We have four dedicated courtrooms for trials shared by the 16 courts. The facilities have limitations, but we are doing our best to conduct proceedings daily.” The impact of Hurricane Harvey on the justice system is clearly enormous. While courts are now holding hearings again, jurors are slowly beginning to return, and the various courts and court staff have “settled” into their new homes, make no mistake about it, it is not business as usual. Because of the limitations of physical space and the relocation of many essential personnel in the criminal justice process, including District Attorneys, Probation Officers, and Law Enforcement Officers, the number of cases being handled in a single day has gone way down. Before the storm, one felony judge might see 20 inmates a day on bond hearings, but now, because judges must often go to the jail to handle these matter, that same judge may only see 30 inmates in a week. According to one Felony District Judge, another major concern is the impact on felony trials and hearings for “in custody” criminal defendants. Currently there are approximately 5,500 felons in the Harris County Jail. Felony District Court Judges are currently not allowed to use the Civil Courthouse for “in custody” felony tri-
als. All 22 felony district courts are being forced to share just two courtrooms in the old family law building to try these cases. In addition, all 22 Felony District Courts combined are currently allowed only five inmates a day in the Civil Courthouse and it must be after 2:30 p.m. Harris County must make every effort to get the Criminal Justice Center and the Jury Assembly Plaza up and running sooner rather than later. Now What? So where do we go from here? The County has already issued a purchase order to repair the damage in the Juvenile Justice Center. The work should be completed in four to eight months. As for the Criminal Justice Center, the County plans to renovate and repair the building. According to an update from Judge Sylvia Matthews, the repairs are expected to take a year from the time the County signs a contract for the work. While the County hopes to have a contract soon, the bid process has not started yet because the scope of the work is still being determined. At this point the County is working to hire consultants who can help frame the scope of work necessary. The work will include a “programming stage,” in which the users and occupants of the facilities will have the opportunity to provide input. It is known that the County will need to upgrade the design of the building. Also, the mechanical, electrical, and plumbing will need to be upgraded and moved from the basement to the first floor. At this time, the building is 90 percent remediated (i.e. cleaned). The elevators in the CJC will soon be in working order, but the problem with the elevators in CJC is not mechanical. It is inadequate capacity and overuse The County would like to improve traffic flow to ease the elevator load, maybe by locating courts at different locations within the building or adding an escalator. Again, all options are on the table; although, at this time, the County is not considering tearing down the CJC and rebuilding it elsewhere.
Finally, regarding the Jury Assembly Plaza, as reported by Judge Matthews, the Harris County leadership, based on recommendations of the County Engineer and Facilities and Property Maintenance (FPM), has decided to rebuild facilities in the same location (underground). The Jury Assembly will be rebuilt as it was, except that water-resistant materials may be used in case the facility floods again. Once the rebuilding begins, the best estimate for completion is six to eight months. With that said, everyone needs to take a moment and thank the court staff in every court! Many of these dedicated individuals suffered significant personal loss in the storm -- damage to their own property, less income while the courts were closed, and displacement from their homes. Even under such difficult times, they all come to work with a pleasant attitude and keep trying to help. Maybe take time also to thank the judges and fellow attorneys for their patience and humor during these trying times. While the post-Harvey situation is not ideal, as legal professionals we can all do our part to be #HoustonStrong. LINKS FOR INFORMATION REGARDING COURTS The author recognizes that this overview will change constantly over the coming months, so in that respect, the latest information can be found here: • hcdistrictclerk.com/Common/about/ harveyupdate.aspx • justex.net/Default.aspx • ccl.hctx.net/criminal/default.htm • justex.net/JustexDocuments/0/ CourtLocations1009.pdf. Daniel D. Horowitz, III is the founder of The Law Office of Daniel D. Horowitz, III P.C. His practice is 100% plaintiff’s personal injury litigation. He is Board Certified by the Texas Board of Legal Specialization in personal injury, a member of ABOTA, and president-elect of the Houston Trial Lawyers Association. He can be reached at firstname.lastname@example.org; 832-460-5181 office; or ddhlawyers.com.
By Benjamin Roberts
Wading through Hurricane Harvey Inverse Condemnation Claims F
ollowing the record amounts of rainfall and subsequent flooding left in Harvey’s path, many Houstonians downstream of the Addicks and Barker Reservoirs, as well as residents downstream of the Lake Conroe Dam, have been left with the question of whether the flooding they suffered was caused by the
storm, or intentional acts by the governmental authorities controlling the dams upstream. In the case of the Addicks and Barker Reservoirs, the Army Corps of Engineers opened the floodgates to the reservoirs’ dam on August 28, 2017 at approximately 2:00 a.m, allowing water to be released from the reservoirs at a rate of 13,000 to 16,000 cubic feet per second (cfs). Prior to the release, much of the rain had subsided, and residents downstream of the reservoirs thought they had avoided disaster, yet this all changed when the Corps began the controlled release. Likewise, many residents of Kingwood felt fortunate to survive Harvey without sustaining damage prior to August 28, 2017. However, not long after the San Jacinto River Authority opened the Lake Conroe Dam and began releasing water into the West Fork of the San Jacinto River at a rate of at least 79,000 cfs, Kingwood and surrounding neighborhoods suffered record flooding. Shortly after Harvey passed, class actions were filed on behalf of business owners and homeowners downstream of the Addicks and Barker Reservoirs, against the U.S. Army Corps of Engineers. Similarly, business owners and homeowners downstream of the Lake Conroe Dam filed a class action against the San Jacinto River Authority. The suits are based on an inverse condemnation theory, with the litigants arguing that the applicable governmental entity effected a taking of the litigants’ homes or businesses without adequate and just compensation. The Basics of “Takings” Law Under both the United States and Texas Constitutions, the government is not permitted to take, use, or damage a person’s private property without just compensation. This is often referred to as the “takings clause.” The basic principle behind the takings clause is that the government should not “force some people Professor Charles Irvine alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”1 When the
government physically invades private property, or unreasonably interferes with the landowner’s right to use and enjoy it, the government has essentially taken the landowner’s property. Generally, takings are accomplished through eminent domain, where the government offers to buy the property from the owner for fair market value, such as the Department of Transportation purchasing a stretch of land for a new highway. However, when the government takes, damages, or destroys private property first, the owner’s remedy is to sue for damages under inverse condemnation. In those instances, a property owner must prove (1) the governmental entity intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in taking, damaging, or destroying the plaintiff’s property (3) for public use.2 First, a property owner must show that the government acted intentionally. Actions generally will be deemed to have
been made with intent when the government requires an owner to suffer a physical invasion of their property. The Texas Supreme Court has held that the requisite intent is met when the government (1) knows that a specific act is causing identifiable harm, or (2) knows that the harm is substantially certain to result.3 A government is said to occupy an owner’s property through inverse condemnation when it deprives the owner of the rights to possess the property, to exclude anyone from the property, to use the property, or to transfer the property. The size of the occupation, no matter how small, is not determinative. An inverse condemnation taking is also said to take place when regulations completely deprive an owner of “all economically beneficial use” of the owner’s property.4 Further, federal takings that do not fit into those first two categories may still be considered unlawful inverse condemnation actions after an analysis of the three factors set out in the “Penn
Central Test.” In Penn Central Transportation Co. v. City of New York, the U.S. Supreme Court held that courts should weigh (1) the character of the governmental action, (2) the economic impact of the taking on the claimant, and (3) the extent to which the taking interferes with a claimant’s investment-backed expectations, when considering if an unlawful taking has taken place.5 A failure to act will generally not lead to a takings finding. For example, in City of San Antonio v. De Miguel, property owners filed suit against San Antonio because the city had failed to fund a new project to divert drainage away from their property.6 The city did not deny that water was draining to the subject property; in fact, the city had been previously sued for the same drainage issues decades earlier and had done nothing. The Fourth Court of Appeals in San Antonio held that the city’s failure to act in this case was at most mere negligence, and did not give rise to an
intentional taking. Thus, while many think that their flooding could have been avoided by governmental preparation, intention is the crux of the claim. In this instance, the following types of evidence may be offered to show the decision was intentional: expert testimony that releasing the reservoir gates would result in the flooding of homes; testimony of government officials that releasing the floodwater was reasonably certain to result in the flooding of the homes; the mandatory evacuation orders issued for impacted areas just prior to the controlled releases, thus demonstrating knowledge by the government of the impending harm; and public acknowledgement by the City of Houston’s public officials, including Mayor Sylvester Turner, of the likely harm to residents who lived near the reservoirs. While inverse condemnation claims are largely the same whether they are brought under federal law or Texas law, there are some minor differences. For instance, the Texas Constitution prohibits the government from taking, damaging, OR destroying a person’s property, and some Texas courts have read this to mean that there may be distinct claims for taking, destroying, or damaging property.7 In contrast, the United States Constitution makes no distinction between a claim against the government
for taking private property, as opposed to damaging or destroying private property. Here, homeowners and business owners will have at least a damage claim if not a takings claim. Whether the claim is a damage or takings claim, the property owners must still meet the same requirements regarding the governmental entity’s intent. A number of different cases analyze whether or not a taking has occurred due to flooding. Recurrence of flooding is a probative factor in determining the extent of the taking and whether it is necessarily incident to authorized government activity, and therefore substantially certain to occur. This is to assure that the government is not held liable for taking property when a project’s adverse impacts, and by implication its benefit to the public, are too temporal or speculative to warrant compensation. This is the standard federal courts have applied in determining whether the government’s actions have permanently taken property affected by flooding. However, recurrence is not a requirement, and courts have found that a single flood event is sufficient to maintain a cause of action of inverse condemnation.9 Damages Recoverable in the Event of a Taking With regard to damages, condemnation proceedings are limited to damages to property. The Texas and U.S. Constitutions require that a property owner receive adequate or just compensation when the government takes private property for public use. While most landowners in the affected area experienced flooding throughout
their property, others may have only had a portion of their land affected by the flood. This is typically referred to as a “partial taking.” In a partial takings case, the measure of damages is “the market value of the part taken plus damage to remainder caused by the condemnation.”10 Where the loss of property is merely temporary, the proper measure of damages is usually the “cost to cure.” With respect to residential homes, this would essentially be the cost to fix the property from the flooding. With respect to businesses that suffered flooding, the recoverable damages, in addition to cost to cure, may include lost profits and lost inventory. Finally, another important distinction between federal and Texas law for inverse condemnation claims concerns the recoverability of attorneys’ fees. Texas law provides no statutory authority for awarding attorneys’ fees in inverse condemnation claims arising under Article I, section 17 of the Texas Constitution, and Texas courts have found that recovery of attorneys’ fees in inverse condemnation cases is adverse to the common law and penal in nature, and statutes providing for such recovery must be strictly construed.11 Federal statutes, such as the Uniform Relocation Assistance and Real Property Act, provide for attorneys’ fees and litigation expenses for plaintiffs who instigate inverse condemnation proceedings in either federal court or the Court of Federal Claims.12 Therefore, suits brought against the Army Corps of Engineers may be more palatable to both the attorney and plaintiffs due to the availability of attorneys’ fees, whereas plaintiffs suing the San Jacinto River Authority for the Lake Conroe Dam release appear to be precluded from seeking this remedy. A Remedy for Houstonians While not everyone in Houston and its surrounding areas will have a claim for inverse condemnation, those whose homes or businesses were damaged as a result of the controlled dam releases have
fundamental rights protected by both the U.S. and Texas Constitutions, and these individuals and businesses may be entitled to adequate and just compensation under the law. Given the number of claims that have been brought against both the Army Corps of Engineers and San Jacinto River Authority thus far, both the Court of Federal Claims and a Texas court (and possibly a Texas jury) are likely to decide whether those affected by the controlled releases are indeed entitled to such compensation. Regardless, the name “Harvey” and the words “inverse condemnation” will likely be heard throughout the Houston legal community for many years to come. Benjamin Roberts is a partner at the Pinkerton Law Firm, PLLC, where he focuses his practice on personal injury and commercial litigation. He and his law partner, Chad Pinkerton, currently represent numerous homeowners and business owners affected by the Addicks/Barker and Lake Conroe Dam Releases.
Endnotes 1. Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex.1980). 2. City of Floresville v. Starnes Inv. Grp., LLC, 502 S.W.3d 859, 866 (Tex. App.—San Antonio 2016, no pet. h.). 3. City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004). 4. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). 5. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). 6. City of San Antonio v. De Miguel, 311 S.W.3d 22, 25 (Tex. App.—San Antonio 2010, no pet.). 7. Ahart v. Tex. Dept. of Transp., No. 14-05-00027CV, 2006 Tex. App. LEXIS 6952, 2006 WL 2167223 (Tex. App.—Houston [14th Dist.] Aug. 1, 2006, pet. denied). 8. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004), holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 (Tex. 2014) (“While nonrecurrent flooding may cause damage, a single flood event does not generally rise to the level of a taking.”). 9. Doss v. City of Victoria, No. 13-07-306-CV, 2007 WL 4442616 (Tex.App.— Corpus Christi 2007, no pet.). 10. City of Justin v. Rimrock Enters., Inc., 466 S.W.3d 269, 288-89 (Tex. App.—Fort Worth 2015, pet. denied). 11. See New Amsterdam Cas. Co. v. Tex. Indus. Inc., 414 S.W.2d 914, 915 (Tex. 1967); Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex. 1962). 12. See 28 U.S.C. §§ 1346(a)(2), 1491; 42 U.S.C § 4654.
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By Jason D. Kraus
and Its Implications on Houston Real Estate Practice and Probate
s Houstonians are putting their lives back together in the aftermath of Hurricane Harvey, it is important to understand and recognize some of the legal issues that arise after a catastrophic flood. In my practice, the most common post-flood issues can be reduced to two general areas: (1) commercial and residential leases; and (2) disclosure requirements when selling real property. This article will examine the issues that arise between landlords and tenants after a post-flood “casualty loss” and the disclosure requirements under Texas law after a flooding incident. Commercial Property In commercial lease parlance, the term “casualty loss” usually means financial loss or loss of property arising from a sudden, unexpected event such as an accident. Events like fire, storm, or flood are typically included in the scope of a casualty loss. When it comes to commercial leases, the lease itself is the final arbiter of how loss is apportioned between the parties. Most real estate practitioners address the issue of casualty loss somewhere in their commercial lease form. Most standard commercial leases drafted by Texas attorneys put casualty loss on the landlord. However, this issue can be (and should be) negotiated by tenant’s counsel. While it is typical for the owner to carry flood insurance, it is not a requirement to do so. Most lenders require flood insurance if a commercial building is in a flood zone, but if it is not, the choice of whether or not to carry flood insurance is solely the landlord’s. Given the amount of devastation and destruction to commercial buildings during Hurricane Harvey, tenants should demand that their landlords carry flood insurance regardless. In the event of a casualty loss in a situation where a commercial lease was signed without any requirement that the landlord carry flood insurance, both parties are in a bad spot as there is no statutory guidance in Texas to fall back on. The
tenant should look to their own insurance coverage to pay for any damage to their furniture and equipment. From the landlord’s perspective, anything affixed to the inside of the property is the legal property of the landlord (unless the lease contains an agreement to the contrary), so the landlord would most likely be responsible for repairing the inside of the property. Of course, the landlord and tenant will often disagree on how far the landlord should go to repair the inside of the premises, but absent clear language in the lease addressing this issue, the parties will be forced to find common ground. Residential Property According to the Houston Chronicle, Hurricane Harvey flooded over 120,000 apartment units. Flood damage affects both the renters who called these apartments home and the owners who need to repair or rebuild their properties. This number is even bigger when you consider
the thousands of rented single-family homes and duplexes that were also damaged during the hurricane and flooding. The law is the same for all residential leases. What can be done if you are renting a home or apartment and it is damaged by flood waters? Unfortunately, the answer is complicated and can be found in Chapter 92 of the Texas Property Code. Do renters have to continue to pay rent if the rental is damaged? In general, it is illegal to withhold rent in Texas.1 This means that even if the property was damaged and is currently uninhabitable, the tenant will need to continue paying rent until the lease is formally terminated or the landlord agrees to suspend the tenant’s obligation to pay rent. However, when the condition is the result of flooding from broken pipes or natural drainage inside the dwelling, the tenant may remedy the situation immediately after giving notice to the landlord. If a dwelling becomes uninhabitable because
of damage to the dwelling from a casualty loss such as fire, smoke, hail, or flood, the Texas “habitability” statute contains specific duties and rights of the landlord and tenant regarding lease termination and rent abatement.2 For example, the statute gives either party the right to terminate the lease if the entire premises are uninhabitable because of such casualty damage to the premises. Lease termination notice may be given any time “before repairs [to the dwelling] are complete.”3 If the premises are only partially uninhabitable from the casualty damage to the dwelling, neither party has the right to terminate the lease, but the tenant is entitled to partial rent abatement and the landlord has a duty of repair as provided in the statute.4 What about “repair and deduct”? In Texas, under certain circumstances, a renter may contract the repairs and deduct the cost of the repair from rent, commonly known as “repair and deduct.”
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Repair and Deduct Remedies are found in section 92.0561 of the Property Code.5 It is important to note that in order for a renter to qualify for repair and deduct, he has to be current on rent, the repairs must be under $500, the renter must have made adequate official request notices to the landlord and allowed “a reasonable amount of time” for the landlord to make the repair himself.6 But in the case of Hurricane Harvey, since there was so much damage, it is likely that most repair needs will exceed the $500 limit, so repair and deduct will likely not be an option for most renters after a major flooding event. What is up for negotiation? While there may be legal precedent for any number of typical landlord-tenant disputes, there is no precedent for devastation this broad. Therefore, whatever a client has a need for, the attorney should make every argument based not just on the lease language and the law, but also based on nothing at all other than the cli-
ent’s life situation. As Carrie Fisher stated: “Everything is negotiable. Whether or not the negotiation is easy is another thing.” Seller’s Disclosure In the residential context, as to be expected, there are many more statutory protections. The Texas Real Estate Commission (“TREC”) promulgates a Seller’s Disclosure of Property Condition for use in residential real estate transactions. This form is filled out by the seller and attached to the TREC 1-4 contract.7 The form tracks section 5.008 of the Property Code which states: A seller of residential real property comprising not more than one dwelling unit located in this state shall give to the purchaser of the property a written notice as prescribed by this section or a written notice substantially similar to the notice prescribed by this section which contains, at a minimum, all of the items in the notice prescribed by this section.8
In this context, the purpose of the Seller’s Disclosure is to make it clear if: (1) the seller knows of any defects or malfunctions in critical systems; (2) previous fires or flooding have occurred; or (3) there are conditions that “materially affect the health or safety of an individual.”9 The Disclosure form should be completed to “the best of seller’s belief and knowledge as of the date the notice is completed and signed by the seller.”10 If a seller does not provide a potential buyer with the Seller’s Disclosure form as required, Section 5.008(f) permits the buyer to “terminate the contract for any reason within seven days after receiving the notice.”11 The statute does not address the legal consequences of a seller failing to provide the Seller’s Disclosure so any damages stemming from Seller’s failure to provide the Seller’s Disclosure would likely have to be pursued under the Deceptive Trade Practices Act and/ or Chapter 27 of the Texas Business &
Commerce Code, also known as the “Statutory Fraud” statute. Jason D. Kraus is principal of The Kraus Law Firm located in Houston and is Board Certified in both Residential and Commercial Real Estate Law by the Texas Board of Legal Specialization.
Mediating all types of disputes since 1999.
Endnotes 1. 2. 3. 4. 5. 6. 7.
TEX. PROP. CODE §92.058. TEX. PROP. CODE §92.051. TEX. PROP. CODE §92.054(b). Id. §92.054(c). See generally TEX. PROP. CODE §92.0561. Id. For commercial transactions, the Texas Association of Realtors has a Commercial Property Condition Statement that is an optional attachment to its standard commercial contracts. Its scope is broader than TREC’s Seller’s Disclosure since it addresses additional issues such as wetlands, underground storage tanks, toxic waste, and the like. 8. TEX. PROP. CODE §5.008(a). 9. Id. §5.008(b)(6). 10. TEX. PROP. CODE §5.008(7)(d); contra TEX. PROP. CODE §5.008(e)(describing that the requirement that a Seller’s Disclosure be provided does not apply to a transfer). 11. Id. §5.008(f)..
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M Quick By Robert Johnson
Tips to Help Your Client Help Themselves After the Storm
any lawyers have been inundated with questions from family, friends and potential clients who suffered losses during Hurricane Harvey. Below are quick tips on some of the most common questions clients are asking after the storm. Understanding Justice Court Following the devastation of Hurricane Harvey, some area residents may want to file a lawsuit to enforce their legal rights, but may not need or want legal representation. Known as the real “People’s Court,” consumers can bring small claims cases in justice court for monetary damages and personal property if the value does not exceed the jurisdictional limit of $10,000. Notably, the environment of justice court is relatively relaxed, providing a more comfortable atmosphere for consumers to bring and defend actions pro se. However, when available, attorneys may seek attorney’s fees on behalf of their clients so long as the total value of the claim including attorney’s fees does not exceed the $10,000 limit. Accordingly, justice court is a great venue for consumers with or without representation. If the case appears suitable for justice court, the Harris County Justice Courts have made many forms available online to streamline the process.1 For a small claims case in Harris County, your client will need to complete four forms (available online) to proceed. These include the Justice Court Civil Case Information Sheet, the Justice Court Petition, Notice of Defendant’s Last Known Address, and a Military Status Affidavit. Once these forms are completed, your client will need to pay a $49 filing fee and a $75 service fee if the defendant resides within the county. Please note that on the Justice Court Civil Case Information Sheet, your client should not select a “debt claim” case unless the client is engaged primarily in the business of lending money at interest.
nuances in procedures or rules unique While your client may seek pre-trial to that court. discovery, they must first ask permission of the court to serve the discovery Auto Issues request. At trial, the judge is responsible After Harvey, your client might find for developing the facts of the case. This that his or her vehicle facilitates an interactive dialog between the ...consumers can has been deemed totaled by flood damage. judge and the parties to bring small claims In some instances, your the case that is not genclient may owe more erally seen in county or cases in justice than the totaled value of district court. It also is helpful to remind your court for monetary the vehicle. When this occurs, working closely client that the plaintiff damages and with the insurance comhas the burden of proof. pany is essential, espeTo that end, your client personal property cially if the insurance should arrive to court company offers less for prepared with everyif the value does the vehicle than your thing needed to prove not exceed the client deems acceptable. his or her claim, inTo facilitate a resolucluding, but not limited jurisdictional limit tion, locate comparable to, documents, records, vehicles in the area uscommunications, conof $10,000. ing area dealerships, tracts, and witnesses. eBay, and private sellers. Blue Book and For claims outside of Harris County, Black Book valuation may also be used consult with the local Justice of the as a benchmark. Next, request that the Peace clerk for differences in cost or
insurance company provide a detailed list of specifications it used to calculate the vehicle’s value. Then, using the VIN from the totaled vehicle, reach out to the original dealer to request a full printout of the specifications. Compare the specifications and request the insurance company to re-evaluate the claim if it missed any specifications. Furthermore, if your client made recent modifications to the vehicle, like new tires or new brakes, these changes may also increase the settlement value. Tree Branch Liability In addition to tragic flooding, Hurricane Harvey left many trees in the area damaged. So what happens when your client’s property is damaged by a tree from a neighbor’s yard? It depends. Generally, the neighbor is not liable for damages to your client’s property simply because the tree damaged your client’s property. To recover damages against the neighbor, your client must prove that the neighbor was negligent.
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Determining negligence will depend on the facts of the case. Where the tree was otherwise healthy and showed no signs of demonstrable safety issues, it may be more difficult to successfully recover damages against the neighbor. However, when the neighbor was previously on notice about the safety and health of the tree, your client may have a stronger case to recover damages in court. Financial Obligations and Debt Collection Following the hurricane, your client may be strapped for cash and run the risk of financial obligations going into default. When this happens, it may be beneficial for your client to prioritize outstanding debts. For example, secured debts like home mortgages or car loans may be prioritized over unsecured credit card debt. However, it is important to note that a hurricane does not eliminate
your client’s obligations to pay debts. In the event that your client needs additional time to meet his or her financial obligations, it may be beneficial to establish a line of communication with the creditor to request a delayed payment, a freeze on interest, or a more affordable payment option. In the event of default, your client’s debts may go to collections. The Fair Debt Collection Practices Act governs the debt collection practices of third party debt collectors; the Texas Debt Collection Act applies to the collection practices of first and third party debt collectors. The Fair Debt Collection Practices Act, for example, prohibits abusive, unfair, or deceptive collection practices. This includes calls before 8:00 a.m. and calls after 9:00 p.m., threats of violence, the use of profanity, and the use of false statements in an attempt to collect a debt. In the event your client is sued, it is
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Robert Johnson is a graduate of the University of Texas and the University of Houston Law Center. He has practiced consumer law for ten years and regularly volunteers his time to offer free legal assistance through a variety of Houston Bar Association outreach programs. Endnotes
1. TEX. Legal Forms for the Harris County Justice of the Peace Courts, http://www.jp.hctx.net/forms/.
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important that your client pay close attention to the notices and defend himself or herself in court to prevent a default judgment. Ignoring process or disregarding the opportunity to defend the client in court could make the situation even worse. Keep in mind, Chapter 42 of the Texas Property Code defines personal property exempt from creditors’ claims. However, if the debt is particularly overwhelming or puts your client’s home at risk, a referral to a bankruptcy attorney may be appropriate.
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By Raymond L. Panneton
In the Aftermath of Hurricane Harvey,
Pro Bono Work Rebuilds Houston H
arvey: A simple name, but one that has changed the fabric of Houston and Southeast Texas forever. When living in Houston, every Houstonian had a storm to which they compared all other weather events. For some, that benchmark storm was Allison, for others Ike, and even Rita some. Now, in 2017, there is no debate. Harvey is the storm to which all Houstonians will compare future weather events. In a matter of days, Hurricane HarLone Star Legal Aidâ€™s building, boarded up vey dumped over 51 inches of rain in after catching fire during Hurricane Harvey. the Houston area, creating a humanitar-
ian crisis, the likes of which were never before seen by this city. In response, volunteers and first responders from all over the country descended on Houston to lend a helping hand. Images of highwater rescues and flooded streets were being covered by local news affiliates on a constant, 24-hour loop. All the while, with no cameras rolling and no media attention, the lawyers of Houston began working. From the first drop of rain through today, the Houston legal community responded, and did so in a big way, providing pro bono disaster legal services either through Houston Volunteer Lawyers, an ancillary organization of the Houston Bar Association, or Lone Star Legal Aid. These organizations, despite setbacks and losses of their own, continue to work, ensuring the over 400,000 survivors of Hurricane Harvey have had effective legal representation, irrespective of their economic status. The Houston Lawyer had the opportunity to sit down with Jessie Campbell from Houston Volunteer Lawyers (HVL) and Saundra Brown from Lone Star Legal Aid (LSLA) to discuss their efforts and impact in the aftermath of Hurricane Harvey.
A Conversation with Jessie Campbell, Houston Volunteer Lawyers Q: What is your role at Houston Volunteer Lawyers? A: I am the Attorney Engagement Coordinator, and my role is to provide support, training, and recognition for our volunteer attorneys. During the Harvey response, I was one of the members of the HVL response management team. I am also a staff attorney with a focus on IRS tax controversies for low income taxpayers. Q: Who coordinated Houston Volunteer Lawyersâ€™ response to the legal need after Harvey? A: HVL is the service arm of the Houston Bar Association. To coordinate our
response, it takes a team, including Alissa Gomez, our former Executive Director; Michael Hofrichter, Director of Operations and Compliance; Veronica Jacobs, Legal Director; Brittany Krohn, Pro Bono Coordinator; Rina Mejia, Programs Supervisor; and myself. The team also includes the president of the HBA, Alistair Dawson, and chair of HVL, Benny Agosto, Jr., as well as key staff at the HBA office. Every person played a role in the response, from cross-agency coordination and planning, volunteer recruitment and management, clinic planning and scheduling, and material distribution. Of course, there were over 800 volunteers who stepped up and were on the ground, volunteering at the shelters, DRCs, and legal advice clinics, and providing information and advice. Q: When it comes to the legal response to a disaster, how do pro bono organizations like HVL work with legal aid providers like LSLA? A: In times of disaster, when it comes to the initial response—volunteering at shelters and DRCs—the Legal Services Corporation, such as Lone Star Legal Aid (LSLA), is essentially the legal equivalent of a first responder. Pro bono organizations, such as HVL, are here to support and bolster that response—obviously, LSLA has limited resources, and particularly in a disaster with the size and scope of Harvey, pro bono volunteers are needed to ensure that immediate legal needs are being met. Beyond that, pro bono provides direct representation legal services, just as legal aid, but we are also able to provide services for those who are not eligible for legal aid services due to a variety of reasons. In fact, LSLA will directly refer those clients to HVL. Finally, HVL was able to go out into the community. Obviously, there were a number of Harvey survivors who
types of legal needs change over time as different issues come to the forefront. Currently, HVL and LSLA are responding to FEMA appeals and l a n d lor d / t e n a nt issues, but down the line, we will Volunteer attorneys offer advice for flood victims at a Houston Volunstart to see issues teer Lawyers legal clinic held at Jewish Family Service of Houston. with identity theft, fraud, insurance issues, etc. Also, in the wake of a disaster, there is such a need and high interest to respond to the legal needs of disaster victims, that “regular” matters can often be overlooked. As before From left, Jessie Campbell, attorney engagement coordinator for the storm, there is Houston Volunteer Lawyers; Amanda Bosley, Equal Justice Works Fellow at Lone Star Legal Aid (LSLA); Roslyn Jackson, director of a still a legal need the Houston office of LSLA; Saundra Brown, director of disaster legal in family, guardianservices for LSLA; Jai Collier, director of the LSLA disaster relief unit; and Alistair Dawson, HBA president. Photo courtesy Lone Star Legal Aid. ship, housing, and other matters. We ask attorneys who were not necessarily fully displaced are interested in volunteering to confrom their homes—that is, they were sider taking a “regular” matter in adnot staying in shelters—but they did dition to the Harvey-related matters. not have ready access to a shelter or Finally, one of the challenges fola DRC. HVL organized what we were lowing a disaster—pro bono fatigue! calling “pop-up legal clinics” in those Self-care is important. Many of our highly affected areas by partnering volunteers were also affected by the with organizations, such as the Housstorm, whether directly or indirectly, ton Airport System, Jewish Family but they still went out into the comService, and KIPP schools, and staffmunities to aid. There was so much ing them with volunteer attorneys. information and such a big need that it can be overwhelming and stressful, Q: What are the challenges for pro sometimes to a point that a person bono following a disaster such as may feel helpless. It is important for Harvey? volunteers to take a step back, breathe, and then return, rested and ready to A: The greatest challenge for pro bono take on the longer-term matters. is normalization. As everyone begins to rebuild their lives and the immeA Conversation with Saundra diate need lessens, everyone is going Brown, Lone Star Legal Aid back to work and there is less coverQ: What is your role with Lone Star age on the news. The legal impact of a Legal Aid? disaster is a marathon in nature—the thehoustonlawyer.com
A: I am the Director of Disaster Legal Services. It is my job to oversee disaster issues so that in the event of a disaster occurring, like Harvey, I can be an integral part of the response team. Q: After a storm like Harvey, what duties and responsibilities do you have as the Director of Disaster Legal Services? A: I monitor disasters on a nationwide level and see the resulting issues. It is my job to help craft and implement a disaster response plan specific to each disaster. At that point, I do a lot of heavy lifting with regard to training of others internally, the local bar members and even state and nationwide.
In a matter of days, Hurricane Harvey dumped over 51 inches of rain in the Houston area, creating a humanitarian crisis, the likes of which were never before seen by this city.
Q: In the middle of Hurricane Harvey’s flooding and storms, there was a fire at Lone Star Legal Aid’s Houston office. What started the fire? A: It is our understanding there was an electrical issue beneath our building caused by the flooding. Q: How did you and the rest of Lone Star Legal Aid overcome the challenges caused by the office fire? A: We knew that our duty first and foremost was to respond to the disaster, therefore, we continued to work. This means that some of us were working from home or borrowed offices. Because our Houston office was not expected to be impact28
ed, a lot of staff left their tech at the office. Everyone worked with whatever they had available. I worked off a cell phone, an iPad, and relied on others for secretarial support over the phone. It worked.
Q: Given your extensive experience responding to natural disasters, what has been a unique challenge from Hurricane Harvey? A: The size and scope of it. Harris County alone has over 400,000 survivors, making it larger than super storm Sandy. Our Beaumont office area was also hit hard, as well as the counties covered by our Bryan, Clute, and Conroe offices. The devastation is widespread and so is our response. Q: What has been a success story of someone obtaining legal services after Harvey?
A: We haven’t had time for any of the appeals processes to play out just yet, but we have had success in obtaining multiple temporary restraining orders in landlord tenant issues. Q: Why is it important for attorneys to volunteer their legal services to victims of a natural disaster? How can pro bono attorneys help? A: Because even though legal aid does so much of the disaster work across the country, it would be impossible for us to be able to staff the early shelters and DRCs on our own. We need a trained pro bono force to help respond to survivor’s legal questions and needs. The disaster
legal process needs attorneys to help with FEMA appeals, landlord tenant issues, contractor fraud, homeownership issues, and other legal needs that will arise. Q: How were you personally affected by the storm? A: I live in an area that is notorious for flooding; this is the third year in a row that my home has flooded. I have personal experience dealing with FEMA and flood insurance and can therefore assist others in the process. In addition to the pro bono organizations in Houston and the surrounding areas, Houston attorneys and law firms have also stepped-up in assisting Harvey survivors in protecting their legal rights and ensuring these survivors get treated fairly during the FEMA claims process—a process riddled with hard deadlines and detailed reporting requirements. While the notion of “first responders” rightfully conjures thoughts of police and firemen making daring rescues, the attorneys of Houston, in response to Hurricane Harvey, have demonstrated that attorneys are in fact, first responders. Raymond L. Panneton is a member of The Houston Lawyer Editorial Board. He practices business litigation at Hendershot, Cannon, Martin & Hisey, PC and can be reached at email@example.com. The Houston Lawyer would also like to thank Clarissa Ayala and Lisa Virgen for their help in coordinating the LSLA interview. Ms. Ayala holds a B.A. from the University of Houston and currently serves as the Communications Director for Lone Star Legal Aid. Ms. Virgen is an Equal Justice Works Fellow for Lone Star Legal Aid’s Low Income Taxpayer Clinic in Houston where she represents taxpayers in IRS disputes and consumer actions.
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By Keri D. Brown
Lessons Learned from
The Frontlines of Pro Bono Legal Aid During Hurricane Harvey
ens of thousands of Texans were temporarily evacuated to shelters because of Hurricane Harvey’s flooding. The Red Cross set up shelters throughout Harris County, including at the George R. Brown Convention Center (GRB), NRG Park, and, briefly, Toyota Center and Lakewood Church. With the influx of hurricane survivors came an influx of legal issues—everything from lost documents to landlord/tenant issues to immediate need for food stamps. As one of the early coordinators of the Houston legal community’s pro bono response, my firm Baker Botts and I were involved in the immediate aftermath of the hurricane. This article addresses lessons learned from the disaster. On Monday, August 28, Houston was coming out of a long weekend of historic rain, and the rain continued. Like a lot of people whose houses fortunately had not flooded, I was antsy for something to do. So, the kids and I used hurricane supplies to build a shelter in our dining room for the stuffed animals (and the kids). My 4-year-old “evacuated” her My Little Pony friends from floodwaters (the rug) to higher ground (the couch). We tuned into the news stations. We followed Eric Berger’s Space City Weather website, often starting conversations with “Eric said….” We watched for updates on Facebook of our friends and colleagues in Houston, and hoped with them that the water levels would not rise. Meanwhile, our firm leadership was working on our emergency response to our employees, and by Monday evening, we had a plan in place for an emergency email address and phone number that our employees could use if they had immediate legal questions. So, what did we learn over the next two weeks? 1. Expect the unexpected. On Monday, in the middle of the continuous rain, Lone Star Legal Aid’s
downtown Houston office caught fire. On Tuesday evening, we made contact with Linda Good, one of their directors: They had no access to their building and their servers were down, so they had no access to their email lists, but they were in the shelters and needed help setting up. I went to the George R. Brown Convention Center that night after my kids were asleep to see how the firm could help. Walking up to the convention center, I passed survivors who were outside talking with others or resting. I also passed the requisite news vans – NBC and several others were there. Everyone who entered had their bags screened and went through a wand metal detector. Inside, there was controlled chaos. The convention center was remarkably well-organized. After screening, I was directed to a volunteer checkin and then was set free. The convention center floors looked just like what you likely saw in the news – row upon row of cots with the ubiquitous Red Cross blankets; people gathered together in friend or family groups with their possessions on the floor next to them. Lone Star Legal Aid had set up a temporary workspace at the back of GRB, laying a sheet of plywood over several chairs. They had flyers and, more impressively and importantly, two of their lawyers were able to make it in through the rain and floodwaters and were there answering questions. We triaged the legal aid situation.
Baker Botts attorneys Kelly Hanen, Austin Thomas and Keri Brown at the George R. Brown Convention Center.
John Porter, partner in charge of the Baker Botts Houston office, welcomes attorneys to the disaster training seminar.
They needed people. They had their two attorneys present (with more staff attorneys at NRG Park and two other Red Cross shelters), but without access to their email contacts, they needed volunteer lawyers to help provide legal aid to the survivors. We worked together to locate those volunteers, taking advantage of social media for this effort. I put out a call to our lawyers via email and to the lawyers of Facebook via the “Texas Lawyers” group, and located lawyers to fill 79 shifts over the course of Wednesday and Thursday at GRB, NRG Park, Toyota Center, and Lakewood Church. The immediate staffing problem was solved, but Lone Star Legal Aid also needed products. They had a limited supply of their disaster legal aid flyers, but no way to make more copies themselves, short of going to Kinkos. We recruited our copy center for the task, and Vinson & Elkins and Locke Lord also coordinated having copies of critical informational flyers delivered to the shelters.
2. “Collaboration” is more than a buzzword. Thursday was the first day that our office reopened after the hurricane. My children’s preschool was still closed, so my daughter came with me to the office and helped out with the hurricane recovery effort by being in charge of handing out binder clips for the leAttorneys assist with legal questions and services at the George R. gal aid flyers that we had to Brown Convention Center, a temporary shelter for more than 10,000 get to the shelters. Our lawHarvey evacuees. thehoustonlawyer.com
yers’ response had been amazing over Wednesday and Thursday; every request (“Can you do a shift?” “Can you get these copies over to NRG Park?”) was met immediately. It turned out that one of the unmet needs at the shelters was for laptops to allow survivors to apply for replacement or new food stamps (SNAP), check the status of their FEMA applications, and similar issues. One of our IT managers configured four laptops to be divided between the GRB and NRG Park shelters, and our mailroom manager arranged to have the laptops delivered every morning and picked up every evening to be secured until the next day. In the meantime, Houston Volunteer Lawyers (HVL) was setting up their volunteer portal to handle shiftfilling to start on Friday, September 1. Michael Hofrichter, a staff attorney at HVL, had the unenviable task of having to modify and cancel shifts at the last minute based on the ever-changing status at the shelters. To help, we hosted a LegalLine in our office and over 70 of the firm’s lawyers, joined by 20 of various clients’ in-house counsel, answered calls. We had advertised our LegalLine to our clients, community partners, and the general public and truly had no idea what to expect in terms of demand. We ended up answering 175 calls that evening, dealing with around 300 distinct legal issues. The next day, we partnered with Lone Star Legal Aid and the Houston Bar Association to host a CLE on providing disaster legal aid. We made the event free, and around 150 in-person attendees and 550 webinar attendees were able to get great training from our new friends at Lone Star Legal Aid. The HBA invited members of the Jefferson County Bar Association, in hard-hit Beaumont, to attend by webinar so they could get up to speed on the important legal issues their community was facing. Our firm’s 32
response to Harvey was one out of many. Firms large, small, and solo were involved and continue to be involved in the ongoing recovery – from organizing professional clothing drives to handling the second wave of legal problems the community is facing. 3. People want to help. I was turning away volunteers within an hour of each request that I made in the post-Harvey days. I had lawyers who were stranded out of town (because airports were closed) who emailed me to ask what they could do while they were out of town, and to keep them in mind for ways to help when they returned. And we were not alone in this response. 4. You have to take care of your mental health. Many lawyers, whether they suffered significant property damage or internalized the problems of other survivors through their volunteer efforts, may be suffering from very real posttraumatic stress disorder. Remember that there are resources available to you. TLAP (the Texas Lawyers Assistance Program, www.tlaphelps.org) is a confidential program with trained professionals and lawyers who have been through similar circumstances who can help. Your office may have an Employee Assistance Program with a certain number of confidential counseling sessions provided by your employer. If you need someone to talk to, make your voice heard. 5. In a disaster, it is important to figure out who is really in charge— not who says they are in charge. There were issues getting legal aid into one of the shelters. The discussions about this went from the lawyers on the ground up to a Congressionallyauthorized legal aid representative, with stops at the HBA and at the Mayor’s office along the way. We eventual-
ly received an email from the Mayor’s office that authorized legal aid in any City of Houston shelter, which was helpful until we learned that the shelter we were concerned with was a Red Cross shelter, not a City shelter, so our email was of little use in that regard. The point is, you have to know a lot of players and figure out where the decision makers are. They can be found in different places on the hierarchy in different organizations. Specific to disasters where people will be sheltered, it is important to figure out who is running the shelter. The Red Cross? The city? The county? Once you have that answer, then you can figure out how to get the necessary authorizations. When in doubt, contact Houston Volunteer Lawyers or Lone Star Legal Aid, because they will be able to connect you to the needs. A final note: Survivors of Hurricane Harvey have ongoing issues and they need you. Contact Houston Volunteer Lawyers at (713) 228-0735 or Lone Star Legal Aid at (713) 652 0077 to find out how you can help. Keri D. Brown is a tax partner at Baker Botts L.L.P., where she also chairs the Houston office’s pro bono committee. She is a former editor in chief of The Houston Lawyer. gary
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Volunteers Step Up to Help in Countless Ways after Hurricane Harvey
blocks from their home to see how they could help. They were not sure what they By Kimberly A. Chojnacki would find, but they felt compelled to contribute to their community in some way. Given Houston’s distinction as the most diverse city in the nation, the pressing need for language-translation services quickly became apparent. Translators for Vietnamese, Mandarin, Cantonese, Hindi, Urdu, Pakistani Bengali, Indian Bengali, Wollof, French, Justin Clune, second from the right in the back row, with others who volunteered to translate in numerous languages at the and Spanish were in deGeorge R. Brown Convention Center shelter. mand. Having studied Russian in college and spent a year in he day the George R. Brown ConUkraine, Justin offered to provide Rusvention Center opened after Hursian translation. He and his fellow transricane Harvey made landfall, Juslators stationed themselves in the legaltin Clune and his fiancée walked the two
Found in Translation
and immigration-services areas to assist those arriving at the convention center with any legal or immigration-related concerns or issues they might have. They worked for two to three days in a row, for eight to 12 hours at a time. Russian translation was not in especially high demand. Those translators fluent in Vietnamese and Spanish were the busiest. So Justin’s efforts focused on translating announcements made over the intercom system and taking stock of the Houston spirit. This experience gave Justin, a Baker Botts associate and native of Los Angeles and Chicago, the opportunity to gain a new understanding of and appreciation for his adopted city. Working alongside people of diverse backgrounds (including a member of the National Association of Pakistan and a pizza-delivery driver, among others), Justin “for the first time, really felt like Houston [was his] city.” He was struck by the lines of volunteers outside of the convention center, so many that some had to be turned away. He witnessed how Houstonians rise to meet challenges—even catastrophic ones— with grace, humility, and an incredible work ethic. Most striking of all, he said, was how welcoming Houstonians are, even in the most traumatic of times: “We weren’t helping refugees, we were helping our neighbors.” Kimberly A. Chojnacki is an associate of Baker Donelson and practices commercial litigation. She is a member of The Houston Lawyer Editorial Board.
Processing Those Arrested and Charged During Harvey
By David T. Lopez hey waded through thigh-high water, loaded with food and personal items, steadied by a rope connecting downtown buildings. Then they worked six days away from home, alternating shifts of work with shifts of sleep. That’s how 25 prosecutors, inves-
couch. help. Robert immediately began volunThere was no way to return teering his time to answer calls from peoto their regular offices, and at ple who had been impacted by the storm. one point the inmate-processSome had legal problems; some were just ing center flooded, delaying looking for a place to start. the admission of arrestees into Robert was determined to use his the jail. knowledge of consumer law to help HousJim Leitner, head of the Intonians whose homes, cars, businesses, take and Grand Jury Bureau, and lives had been turned upside down had recommended that indiby Hurricane Harvey. Over the next six viduals bring food as a precauweeks, he volunteered several hours at Flooding at the Harris County Criminal Justice Center. tion against possible problems, the HBA nearly every day, answering tigators, and support staff kept open the but the extent of time was beyond what questions about property damage, insurCriminal Intake Division of the DA’s Ofanyone envisioned. Food was limited unance, flooded cars, landlord-tenant disfice, where hundreds of determinations til the third day after evacuation, when putes, and many other consumer issues on criminal charges and incarceration food and supplies were able to be brought related to the storm. He also served as a are made 24 hours a day, every day of the in. resource for local media who contacted year. The work of the unit, together with the the HBA for information on consumer Ordered to evacuate their office at the administrative and judicial process of inlaw. flooded Criminal Justice Center because coming cases, ensured that individuals Robert was born in Honolulu, moved of Harvey, the group had to cross to the were not detained and kept away from with his family to California and Ohio, Juvenile Detention Center. Constables set their families in time of emergency need. and finished high school in San Antonio. up the rope crossing, and IT technicians That also freed law enforcement officers By the time he started college at the Uniwent to work rerouting the telephone to dedicate time to protect lives and propversity of Texas, where he studied ecocalls from arresting officers with only a erty, and to render assistance where necnomics and business, he already knew he two-hour interruption. essary. wanted to be a lawyer. As they were setting up, electrical genDuring law school at the University of erators stopped working, and when powHouston Law Center, Robert was selected David T. Lopez concentrates his practice er was restored there was not enough for by Greg Abbott to clerk for the Consumer in domestic and international arbitration air conditioning. Computers and other Protection Division of the Texas Attorney and mediation. He is a member of The equipment could not be safely moved in General. In 2006, he was the first student Houston Lawyer Editorial Board. the evacuation, so they had to make do ever to receive a gubernatorial appointwith what the office already had in the Jument by then-Texas Governor Rick Pervenile Division of the DA’s office housed ry to serve on the Board of Regents for Doing Well by Doing Good in the Juvenile Justice Center. Others asthe University of Houston System. Even By Tara Shockley signed to the Division had to deal with with the additional responsibilities in n the last day of August, when personal problems or could not otherlaw school, Robert continued to focus on the rain finally stopped and some wise arrive to provide relief. With limited helping consumers through every availof the Houston Bar Association staff and resources, evaluating and proable outlet, including consumer law clinstaff could make their way through the cessing charges required more time than ics, the People’s Law School, and the Hurflooded streets into downtown, the HBA usual, particularly since staffing from the ricane Assistance office re-opened its District Clerk’s Office, and judicial clerks Program. “That’s doors, ready to help assisting the probable-cause judge and where I found my those who had sursetting dockets for jailed individuals, also love for consumer vived Harvey and were limited. law,” Robert says. needed to know In order to ensure that the careful pro“Being able to lift what comes next cessing of intake cases was maintained someone up in a on the long road to to the regular standards, shifts were estime of need is recovery. That same tablished for the prosecutors as cases very rewarding.” day, attorney Robert accumulated. They worked six hours on Since receivJohnson decided to Robert Johnson answers calls during the HBA’s and six hours off, attempting to get some go by the HBA office special Hurricane Harvey LegalLine, held daily ing his license to rest or sleep on the floor or any available practice law in to see how he could from 3-5 p.m., August 31-October 27.
November 2007, Robert has continued to dedicate his professional life to consumer law and affiliated practice areas, which included a term as Chairman of the Houston Bar Association section for Commercial and Consumer Law from 2011 to 2012. By the time Robert would get to the HBA office during the LegalLine programs after Harvey, he often had names and phone numbers waiting for him from callers who needed help with consumer issues. He would spend the next several hours returning those calls and speaking patiently to people who desperately needed answers: Do I have to pay my rent if I can’t live in my apartment? What do I do if I don’t have flood insurance? How can I get copies of all my important documents I lost in the flood? “The counselor role of attorneys is really important,” Robert says. “People are panicking. How are they going to piece things together? They want to know it’s going to be okay.” Robert says that volunteer work and pro bono legal assistance will always be an integral part of his professional life. “Doing well by doing good,” he says. “Having a lasting impact on a person’s life when they have nowhere else to turn and going to bed knowing you made a difference is paramount. It is one of the great privileges that comes with practicing in such an incredible community.” Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer.
Long-term Recovery: The Mission of the United Way and Lynne Liberato
By Polly Fohn ynne Liberato again has been called on to use an expertise she wishes she did not have. This expertise began when she chaired the United Way’s recovery efforts following Tropical Storm Allison and then developed after chairing the recovery taskforces for hurricanes 36
Lynne Liberato, right, who heads the United Way Hurricane Harvey Recovery Taskforce, experienced the flood firsthand with her mother, Patty Liberato, who had four feet of water in her home. They are pictured here shortly after the rain subsided.
Katrina and Ike. So, before the rains stopped, Lynne found herself agreeing to chair the United Way’s Hurricane Harvey Recovery Taskforce. “When United Way’s Linda O’Black contacted me to ask if I would head the taskforce, I was watching television and seeing Houstonians rescue their neighbors from flood waters,” explained Lynne. “I was so moved by the generosity of people in our community—really heroism—and the tragedy that our neighbors were enduring, there was no way I could say ‘no.’” A long-time volunteer for United Way (and appellate partner at Haynes and Boone), she will tell you that her passion for the work of the United Way comes from her deep knowledge of the work of the United Way. She has served as the chair of the board of directors, the head of the community campaign, and the chair of the fund allocation committee. “No organization is better than our United Way in addressing the needs of people recovering from disasters,” she said. “We are there for the short-term, but more importantly for the long-term. Understandably, the public’s attention ends long before people’s lives are close to normal. The United Way will be helping people get their lives back for the next three to four years that it will take.” The taskforce is charged with allocat-
ing the $44 million raised for the United Way disaster recovery. People’s needs, of course, were immediate, so the taskforce first met the Friday after the rains stopped and distributed funds to approved providers that afternoon. Lynne notes that the United Way is able to act so quickly because of what she describes as “infrastructure in place” to allow quick action. She explains that infrastructure is knowledge of the best providers, relationships built over decades from its integral place in the community, and trust. She also credits the volunteers and staff of the United Way. “Members of the taskforce come to our regularly-scheduled meetings with great ideas and tough questions,” said Lynne. “Most of them are business executives, and they all know how to manage money, engage in strategic thinking, and they love Houston. And, they are supported by experienced, caring staff members.” Now, while keeping an eye on short term recovery efforts, United Way is directing funds to long-term needs, especially home repair and case management, which funds disaster case managers who help individual families navigate the complexities of recovery. It also supports behavioral healthcare and makes small grants to organizations with specific needs that can make a big impact. Of note, it serves a four-county area, including Harris, Montgomery, Waller and Chambers County. Having been president of the Houston Bar and the State Bar, Lynne offers thanks to the experience she gained leading a large organization of many volunteers and outstanding staffs. “The experience I gained from Bar leadership translates to the community service work that I do. Both have deeply enriched my life, and I am so grateful to be able to bring some of that experience to help our community now in what must be the worst disaster we have ever experienced.” Polly Fohn is an appellate partner at Haynes and Boone, LLP and an editor of The Houston Lawyer.
Answering the Call: One Lawyer Steps Up to Coordinate Legal Help for Evacuees
there were clearly designated, volunteer legal resources in the concourse. Lucido stepped up to the plate, and right off the bat she noticed an attorney handing out personal business cards. She By Kristen Lee checked with the volunteer lawyers who young man, probably in his early were present: Lone Star Legal Aid (LSLA) 20s, enters the George R. Brown and the Houston Volunteer Lawyers had Convention Center and stands already been coordinating volunteer alone in Hall E or “Dorm E” as it was lawyers. When it was clear that these atdubbed. Water drips torneys were not from his clothes. with either LSLA His mouth is agape or HVL, Lucido and he seems almost asked them to surprised to be in leave. this setting. Around She began athim, other dazedtending meetlooking people mill ings—three times about. Most are dry, a day at 8:00 a.m., but definitely un- Rita Lucido grabs a nap at the George R. Brown 2:00 p.m., and Convention Center shelter between rounds of settled in this place. coordinating volunteers. 8:00 p.m.—with A woman approaches him and with a people from the City of Houston, FEMA, concerned look, no doubt taking stock Red Cross and other volunteers who of his drenched attire, asks if he would jumped in to set up and run the shelter. like a towel. His response startles her to The meetings allowed all the players to her core: “I was … I was just airlifted in hash out issues that evacuees were ena helicopter.” countering, and they allowed her to take The woman offering towels to shocked back what she had learned to the other and likely traumatized evacuees was Rita volunteer lawyers for dissemination to Lucido—lawyer, volunteer, Houstonian. those in need. One day, her phone’s step She was one of many who, seeing people tracker told her she’d walked 8.6 miles, in need in the wake of Hurricane Harall inside the Convention Center. vey’s torrential rainfall, made her way to “It seemed like every minute I was the Convention Center and went to work there I was busy, but I don’t know what doing anything that needed doing. all I was doing,” Lucido said. “Our big“If we loaded these huge seven-foot-tall gest hurdle was consistently and unibins with dirty towels, the Hilton would formly helping people understand rentpick them up, wash them, and bring ers’ rights—whether their apartment them back. So that’s what I did at first,” was habitable or whether a landlord was Lucido said. “Then I started picking up treating someone fairly. We felt like we trash. Then I cared for some animals. The weren’t able to disseminate enough of one thing I couldn’t do was the sorting this same type of information to everyof donated clothing. It was just too overone who needed it because each situation whelming.” was so unique. Everyone had individual On the third or fourth day of shelter questions and problems.” operations, Lucido received a call from a Lucido, who practices divorce and famfriend at the City of Houston. He said the ily law at her firm, Cothrun & Lucido, shelter needed someone to organize leorganized the legal-resource tables. She gal services; people needed advice about coordinated with LSLA and HVL to enwhat to do with their flooded apartments sure there were enough attorneys with and missed court dates, among other isspecialized knowledge present, particusues. The City wanted to ensure that larly immigration, landlord–tenant and
criminal law. “The people from Lone Star Legal Aid were amazing, especially when you consider their building blew up,” Lucido said. “It was very intense, but I didn’t do anything more, and probably did less, than so many other people who were there.” She did a lot, though. At several points, she was texting with friends to connect them with evacuees who needed housing, just to get people into more comfortable conditions. Several days into shelter operations, entertainers began filtering in to lighten spirits and give comfort. The effort was well-meaning, but it certainly made the concourse chaotic. Yet Lucido persevered and ultimately handed off responsibility for managing legal affairs as shelter operations winded down. “I’m honored I had the opportunity to help and it was really very satisfying,” Lucido said. In thinking back to that soaked young man who seemed absolutely stunned by his circumstance after being airlifted and trucked to the Convention Center, Lucido said she has just one regret about her experience: “I wish I had stopped to talk more. I think that young man probably needed someone to talk to.” Kristen Lee is an Assistant County Attorney in Harris County Attorney Vince Ryan’s office where she coordinates responses to open records requests and handles media relations. She is a member of The Houston Lawyer Editorial Board.
Operation BBQ Relief By Anietie Akpan “Food is symbolic of love when words are inadequate.” -Alan D. Wolfelt
t was only six years ago that a multiplevortex tornado struck the City of Joplin, Missouri devastating the city and leaving many of the city’s 50,000 residents displaced and disheartened. In response to the need to feed these families, as well as emergency personnel, competitive barbeque teams from eight states
volunteers, Joshua recruited his co-workjoined forces to prepare countless hot er Maggie Garib and her husband and meals. Through their collective efforts, fellow attorney Ben Landgraf of McGethey served over 120,000 meals in 11 days hee, Chang, Barnes & Landgraf, to assist to families and first responders all over Jowith vegetable and barbeque preparation. plin. It was these efforts that birthed the Their volunteer efforts included movgenesis of Operation BBQ Relief. ing incoming supplies and preparing the In response to Hurricane Harvey, cooked meals for transportation. members of the legal community all Brandon Caire of Baker McKenzie also over Houston and throughout Texas, volunteered with Operation BBQ Relief. and across the country, sought numerHe volunteered during the latter part of ous volunteer opportunities to assist the first week after the storm, assisting those adversely affected by this historical in myriad tasks: mixing, preparing, and natural disaster. Many legal professionals cooking red beans and rice, baked beans, decided to join the philanthropic efforts and corn; setting up tents onsite for the of Operation BBQ Relief, led by Grand pitmasters; and directing vehicles full of Champion pitmaster Stan Hays and his barbeque to be delivered across southeast esteemed team, by helping prepare meals Texas. for survivors and first responders. Over the course of volunteering, BranOne of these individuals was Joshua don and his friend and colleague, Louie Christopher of Serpe, Jones, Andrews, Layrisson of Baker Callender & Bell. Botts, had several On August 29, friends join their 2017, Joshua revolunteer efforts, ceived a text mesincluding Nathan sage from a friend Boudreaux of Arasking if he would amco, Cody Brackbe interested in een of Comerica, volunteering with and Brandon Reyes Operation BBQ Reat First Victoria lief. Seeking a way to supplement his Brandon Caire, Cody Brackeen, Brandon Reyes Bank. “It was honand Louie Layrisson served first responders estly a fantastic volunteer efforts of and survivors through Operation BBQ. group to work with,” Caire said. “It was a providing pro bono advice with the Legal pleasure to help out so many just by cookAid Clinic at the George R. Brown Cening good food, something I love to do in ter, Joshua immediately signed on as an my spare time anyway.” Operation BBQ volunteer and began his We often underestimate the power of first shift at 8:00 a.m. the following mornfood in our daily lives. A hot meal preing. pared and delivered with care during a After a brief orientation on food and time of need can be incredibly transforequipment safety, Joshua prepared green mative. Through the tireless efforts of beans and baked beans, and seasoned, Operation BBQ Relief and its countless sliced, and prepared over 40 briskets for volunteers, over 370,000 individuals delivery to the Houston Police Departwere fed in the aftermath of Hurricane ment and Houston Fire Department. Harvey, proving that kindness is perhaps “One of the biggest takeaways was the best type of “soul” food there is. seeing how eager everyone was to help,” Joshua shared. “There were volunteers Anietie Akpan is a second-year associate who had flooded themselves, but wanted at Sinoski & Associates, PLLC, a family to serve the first responders . . . and there law firm located in Spring, Texas. She is a were multiple couples who had driven in member of The Houston Lawyer Editorial from Dallas, Arkansas, and Oklahoma.” Board. So, inspired by the efforts of his fellow 38
Advocating for Animals By Emery Gullickson Richards
Groups like Salise Shuttlesworth’s Friends For Life cared for over 1,500 animals at the George R. Brown Convention Center.
s the storm raged and waters rose, at 10:30 p.m. on Sunday, August 27, Salise Shuttlesworth received a call from the City of Houston. She was told that animals were arriving at the George R. Brown Convention Center (GRB). “Please come now,” the caller asked. Salise is the founder and executive director of Friends For Life, Houston’s only no-kill animal shelter. When Salise and her wife arrived at GRB that night, evacuees were huddled with their pets against the front wall, trying to stay dry, as others were unloaded from dump trucks. The Red Cross, GRB, and City of Houston authorities decided pets would be allowed to enter the shelter, but they needed help. Inside, Salise’s team quickly began setting up a designated area for evacuees with pets, creating an animal intake system, and mobilizing the army of Friends For Life volunteers. Throughout Houston, her team set up supply lines that snaked around flooded streets and established drop zones at private homes to get food, crates, and equipment to the GRB. Volunteers arrived to help clean pets who had been soaked in the flood, dry them off, and even take them for walks while their exhausted owners rested. They also worked with veterinarian Dr. Katie Eike to create an onsite veterinary clinic, treating injuries, giving vaccines donated by local clinics and manufacturers, and
providing medications. Together with South by South Vets and Trans4mative, they launched a website to help match volunteer veterinarians and vet technicians to shelters in need. In the first 24 hours alone, they triaged 671 animals. That number would grow to approximately 1,500 in the coming days, as the census of evacuees at GRB rose toward 10,000. But it was not only animal lives that were saved by these efforts. During Hurricane Katrina, many people died because they refused to evacuate without their pets. When Harvey struck, Houston showed it had learned a hard-won lesson from Katrina. Having been deployed to animal recovery efforts in the wake of Katrina, as well as three subsequent hurricanes, Salise has witnessed the aftermath firsthand. The staggering loss of animal life, the towering cost of relocating abandoned animals from a disaster zone, and the compounded trauma evacuees experience from losing an animal at a time when they need their companionship most; all of these impressed upon Salise the need to coordinate animal rescue efforts in times of crisis. Salise firmly believes, “If we allow evacuees to shelter with their pets, if we assure people that they will be able to evacuate with their animals, more people and animals will live, because more people will be willing to leave—sooner.” Hurricane Harvey created a proof of concept for the nation: people and animals can be sheltered together safely. “It is possible to house evacuees with pets in an organized, healthy, peaceful, and humane way—while keeping the people and animals safe,” Salise said. Meanwhile, as a result of the storm, Friends For Life has received four times its usual intake of homeless animals, including 30 litters of pups and kittens. Such an influx would have provided a challenge even under normal circumstances, but has proved especially trying in the wake of Hurricane Harvey. Its resources have been strained, yet its guiding purpose remains the same, painted
in seven-foot letters on a wall inside the shelter: Every Animal Matters. Friends For Life is committed to extending this principle to all aspects of animal sheltering, including disaster planning, rescue, and recovery. “Imagine if being prepared to evacuate with animals was the default,” Salise said. “If supply checklists, first responder training, preidentified shelter areas, evacuee housing, and post-disaster recovery took animals into account. If trained animal responders were on hand ahead of time to safely and humanely house animals and families together in a crisis, both lives and dollars would be saved.” This goal is what drives Salise on her new mission. A 1990 graduate of the University of Arkansas School of Law, Salise returned to the classroom earlier this fall as Co-Director of the South Texas College of Law Animal Law Clinic, the first and only animal law clinic in Texas. The clinic’s inaugural group of students is assisting Friends For Life with writing a manual for sheltering pets during a natural disaster. They also plan to advocate for policy and legal changes that would better facilitate the care of animals in a time of crisis. Through changes in policy and law, the animal law clinic hopes to improve the coordination of advance planning efforts among governmental entities, and to support the work of crisis responders, all while ensuring expanded and enduring protections, procedures, and resources for animals and their families in natural disasters. Emery Gullickson Richards is an associate at Blank Rome LLP.
Matching Community with Need
By Polly Fohn s the waters began to rise and the sound of rain continued during Hurricane Harvey, Neil Verma, like many others around Houston, heard the call for help from his community. Neil is a life-long resident of the Houston area, in-house counsel for Carriage
Neil Verma on the phone dispatching volunteers to help with cleanup in the hard-hit Bellaire and Meyerland areas.
Services, Inc., and currently resides in Bellaire. During Hurricane Harvey, Neil witnessed the waters inch toward his home, filling his garage and eventually flooding his car. Although he personally felt the impact of Harvey, Neil did not hesitate to lend a helping hand to those more seriously impacted by the flooding. The Tuesday after Harvey began to soak the city, Neil teamed up with his workout group to muck out homes and help residents begin the cleanup process. Later that evening, Neil contacted Bellaire Mayor Andrew Friedberg about organizing a coordinated volunteer effort across the city. Almost immediately, Neil began working with the mayor’s wife, Jennifer Friedberg, and Bellaire resident, Barbara Hoffman, to convert the city’s recreational center into a temporary donation drop-off location and centralized command center for volunteers. The team set up a system to notify the community that the recreation center was open for pickup and drop-off of critical supplies, such as food, water, bleach, and other cleaning supplies. The team also asked for volunteers to help those needing assistance cleaning out their flooded homes. Using email and social-media sites, such as Facebook and NextDoor. com, word spread quickly that the recreation center was open to help those in need. Just hours after Neil, Jennifer, and
Continued on page 43 November/December 2017
68th Harvest Celebration Raises $735,200 for Pro Bono Legal Services
he 68th Harvest Celebration raised $735,200 in underwriting to support pro bono legal services for low income Houstonians. The largest annual fundraising event of the Houston legal community is sponsored by the Houston Bar Association, Houston Bar Foundation and Houston Bar Association Auxiliary. More than 800 Houston HBA members and guests filled River Oaks Country Club on November 13, celebrating the spirit of giving. The Harvest Celebration supports the Houston Volunteer Lawyers, a project of the HBA that provides pro bono legal services for low-income families including veterans, the elGreeting guests were Phillip Sharp; Lisa Sharp, president of the HBA Auxiliary; Alistair Dawson, president derly, those with disabilities, of the Houston Bar Association; Wendy Dawson; Sandy Sales; and Travis Sales, chair of the Houston Bar and other low-income Housto- Foundation. nians with family law, consumer law, probate and other legal problems. Although the Harvest Celebration has been the social event of the year for the legal community since 1949, it was designated a fundraiser 17 years ago and has raised nearly $7.5 million for pro bono legal Travis Sales with his father, James B. Sales, chair Harry Reasoner, chair of the Texas Supreme Courtâ€™s services in Harris County.
Photos by Temple Webber
emeritus of the Texas Supreme Courtâ€™s Access to Access to Justice Commission, and his son, Barrett Justice Commission. Reasoner, chair elect of the Houston Bar Foundation.
Benny Agosto, chair of the Houston Volunteer Lawyers; Nikki Agosto; Victoria Agosto; and Logan Ebel.
Juvenile Law Section members and officers, from left, Hans Nielsen; Dena Fisher, immediate past chair; Brian Fischer, program chair and former chair; and the Hon. Michael Schneider, secretary and former chair.
From left, William Hagans, Kasi Chadwick, Mason Hester, Sammy Ford, Jim Zucker and Mary Isensee.
Baker Botts attorneys, back row from left, Harrison Tucker, Liam Oâ€™Rourke, Jeb Golinkin, Travis Gray and Travis Wofford; front row from left, Alexandra Caritis, Amil Shah, Kelly Hanen and Emmie Proctor.
Beck Redden attorneys, from left, Tom Ganucheau, Parth Gejji, Alistair Dawson, Allison Standish Miller, Connie Pfeiffer, David J. Beck, Alex Roberts, Geoff Gannaway, Kyle Lawrence and Nick Bruno.
John Eddie Williams, Jr. and Sheridan Williams
Greg Ulmer and Sandy Brown Ulmer
Carter Crow and Meredith Crow thehoustonlawyer.com
Aerin Smith and Quentin Smith November/December 2017
By Tara Shockley
Special HBA LegalLine Provides Answers, Resources after Harvey More than 420 attorneys volunteered to answer over 2,750 calls during the Hurricane Harvey LegalLine.
Lauren Vickers of Norton Rose Fulbright LLP.
Sumit K. Arora of Kilpatrick Townsend.
Hillary Holmes of Gibson, Dunn & Crutcher. 42
just have a question.” Many of the calls started that way, and then the stories unfolded. “My house flooded and my family can’t live there. Do I still have to pay my rent?” “I lost all my important papers in the flood. What do I do?” “My car was underwater but my insurance company doesn’t want to pay me anything. Who can help me?” From August 31 through October 27, the Houston Bar Association provided a service that only the professional group represented by its membership is qualified to give – legal advice. Every afternoon from 3:00-5:00, Monday through Friday, HBA volunteers answered calls from the public during a special Hurricane Harvey LegalLine program. During the regular LegalLine programs on the first and third Wednesdays, the lines were open from 3:00-9:00 p.m. More than 420 attorneys volunteered their time to answer 2,759 calls from the public during the program. While not all of the calls were directly related to damage or legal problems resulting from the storm, increased awareness of the opportunity gave those who had other legal issues a chance to get answers and learn about options to help with their problems. The Hurricane Harvey LegalLine program was listed
among the city’s disaster relief resources and in resources provided by local media. The HBA staff put together extensive resources and guidelines from state and federal agencies like FEMA and the State Bar of Texas, as well as law firms and other organizations. Many attorneys volunteered multiple times, saying it was something they knew they could do to help those impacted by the storm. The HBA LegalLine Committee co-chairs —Peter Danysh of Vinson & Elkins LLP, Matt Frogel of Locke Lord LLP, Louie Layrisson of Baker Botts LLP, Mitch Reid of Andrews Kurth LLP, Jessica Rodriguez of Norton Rose Fulbright LLP, and Luke Tanner of Bracewell LLP – along with HBA staff, mobilized quickly to recruit attorneys for each day’s program. A number of law firms, corporate legal departments and legal organizations offered to take shifts, along with many solo and small firm practitioners who donated their time to help. Gibson, Dunn & Crutcher offered the expertise of attorneys from its New York office to answer questions on FEMA and other federal assistance, with calls transferred from the HBA’s office. Baker Botts sponsored a Harvey LegalLine that included attorneys from several of their offices and their corporate counsel partners. The Hurricane Harvey LegalLine was built on a model developed during previous natural disasters such as Hurricane Rita and Hurricane Ike. Along with services for members that include frequent updates on the courts, coordination of temporary office space and a relief fund for attorneys in need, Hurricane Harvey represents the HBA’s most extensive disaster relief efforts to date. The HBA website has links to a number of resources for both members and the public at hba.org/harvey. Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer.
HOUSTON LAWYERS WHO MADE A DIFFERENCE
World War I SERIES
Captain John R. Burkett T
he greatest tragedy of any war is the loss of human life. So it was in World War I. Of the Houston lawyers who served in the military, one did not survive. This is his story. John R. Burkett was a young lawyer who volunteered for the Army the month after war was declared. We know little of Burkett’s practice before his enlistment. An advertisement placed in the Houston Telephone Book in 1916 shows him having an office address in the Commercial Bank Building at 116 Main Street and a residence address of 302 Welch Avenue, in the then-suburban Montrose area. His advertisement also noted that he was a notary public. A search of the District Clerk’s records of the era show few cases in which he served as an attorney of record. His obituary column does not show any wife or children. Perhaps because of his relatively old age, 25, he was quickly promoted, and was a captain by the beginning of deployment of the 90th Division of the U. S. Army in the MeuseArgonne in September of 1918. The 90th Division, and especially the 359th Brigade that Burkett served in, was very active between the time they were placed on the line and the armistice. Rather than being an outfit that lived in trenches and tried massive attacks, they were mobile and were usually on the attack.
By The Hon. Mark Davidson There remain two memories On November 1st, the 359th of Burkett and his troops. Amerwas involved in an attack on ican Legion Post 77, chartered a Hill 243 south of Andevanne, in Houston, is named the John France. The hill was captured. Robbins Burkett Chapter. His That night, their mission acparents, E.M. Burkett and Abbe complished, the officers of Burkett, were charter members the 359th were organizing of the Post. The name of the their troops to defend against Post is a continuing honor to his an expected German counterservice. Outside of the French attack. The Americans were Village of Bantheville, a small subjected to a heavy artillery monument in an intersection of attack. Captain Burkett was Captain John R. Burkett two rural roads exists to honor those who libgravely wounded and died four days later, erated the area. on November 5th. To the people of the Marne, John Burkett Three days after his death, the Germans made a difference. To the war whose final asked to appear before the French Comoffensive may have helped encourage the armanders and ask for a cessation of military mistice, the troops under his command made activities. This armistice took effect on Noa difference. To all Americans who have vember 11, 1918. Captain Burkett’s death in given their lives in service to our country, we the final offensive made him a casualty of owe them our continuing thanks for the difwar. All deaths in war are tragic, and one ference they have made in our lives and that that took place a week before the cessation of every person on Earth. of hostilities is even more so. The History of the 90th Division In World War I tells the The Hon. Mark Davidson is an MDL story of the valor of the 359th in the Meuse Offensive, and lists Captain John R. Burkett judge and judge (retired) of the 11th Disin a long list of deaths. For the death of a trict Court. His column for The Houston brother attorney on a forgotten hilltop in a Lawyer focuses on Houston attorneys who closing battle of an increasingly forgotten have had significant impact on the law, the war, we all should grieve. legal profession and those served by the law.
Matching Community with Need Barbra set up the center, donations began pouring in. Neil and the team also set up a system to take in requests for assistance and to dispatch volunteers. The first morning the recreation center was open, two Boy Scout troops showed up, ready to help with the 20 requests Neil and the team received overnight. According to Neil, the amount of help each person needed ranged from just getting basic cleaning supplies to help packing and salvaging valuables to tearing out carpet and flooring. In each case, Neil and the other volunteers worked together to understand the unique needs of each person seeking help and match volunteers to the best of their abilities. In one case, after Neil dispatched a
from page 39
group of volunteers to a woman’s flooded home, the volunteers arrived to find that the home was in bad shape and the woman, named Poppie, needed a place to escape from the damage. And, although the recreation center was not intended as a shelter, the volunteers brought Poppie to the center, where she was finally able to rest. For several days, Neil, Jennifer, and Barbara worked together tirelessly for 12 hours a day, taking in supplies and calls for assistance. Within just a few days of opening the makeshift donation and volunteer command center, the team worked with over 100 volunteers and helped provide general cleanup and other relief for nearly 30 homes
in the Bellaire and Meyerland areas. Eventually, Neil, Jennifer, and Barbra transitioned their efforts to Crosspoint Church in Bellaire to continue to help those in need. Neil’s efforts to help his community started small—tearing out flooring and drywall with his workout group. But, eventually with the help of Jennifer, Barbara, and the generosity of the Bellaire community, he transformed his work into a collaborative, community-wide effort to help dozens of families jumpstart the road to recovery. Polly Fohn is an appellate partner at Haynes and Boone, LLP and an editor of The Houston Lawyer.
HBA Continuing Legal Education Sets The Standard
The Houston Lawyer
By Robert Ford
roviding quality continuing legal education (CLE) to Civil Trial Practice in the Shadow of the Vanishing Trial and its members has long been an important function of Tropical Storm Harvey the Houston Bar Association (HBA). Through years This program will explore the cause and effect of the vanishing of hard work and prolific civil trial on case evaluation, the motion programming, the HBA’s practice, trial, and settlement of litigaCLE Committee has established itself tion, as well as the status of the impact as one of the vanguard providers of of Tropical Storm Harvey on the trial free and low-cost CLE courses to atpractice in Harris County. The presenttorneys in Houston and the surrounders will also discuss the relationship ing counties. The CLE Committee is between the affected public and private primarily comprised of the Seminars justice systems, and the resulting chaland Institutes Subcommittees, and lenges faced by litigators and the adeach play distinct but equally integral ministration of justice. Friday, March 9, roles in planning and producing the A recent Lunch & Learn covered an overview of spe- 2018; 1.5 hours MCLE credit, including high-quality CLE programming that cial education law, presented by Holly Griffith Terrell. .5 hours ethics credit. Presenters are the HBA’s members need to satisfy their annual MCLE requireHon. Randy Wilson, 157th District Court; Hon. John Coselli, atments. torney at law; and Richard A. Schwartz, attorney at law. The Seminars Subcommittee plans and puts on weekly CLE seminars, usually held Friday afternoons at Heritage Plaza, Harvey’s Aftermath: What Every Lawyer Needs to Know about with some alternately held on Thursday morning at Marathon Texas Lien and Bond Claims in our Post-Harvey World Oil Tower. No pre-registration is required, and each seminar Hurricane Harvey flooded our community and damaged our is 1.5 hours of MCLE credit, with many offering ethics credit property. The cleanup and rebuild has and will impact everyone. as well. Most notably, these seminars are free to HBA members. Now, more than ever, it is important for every attorney to have (Non-HBA members may attend a seminar for $50.) a basic understanding of construction liens and bonds. This The Institutes Subcommittee presents half and full-day inspeech will provide you the basics for both commercial and resistitutes on a variety of topics each year. Institutes are approved dential construction lien and bond claims. Friday, April 6, 2018; for MCLE hours and most include ethics hours. 1.5 hours MCLE credit, no ethics credit. The presenter is Joshua In addition, the HBA has, in the past few years, introduced Mermis, attorney at law. two new programs which continue to grow in popularity: “Java As we progress through another bar year, HBA members have with the Judges” and the “Lunch & Learn Series.” Java with the every reason to be proud of the fine work that their CLE ComJudges are regularly scheduled opportunities for HBA members mittee and subcommittees are doing to ensure that lawyers in to meet at the courthouse with different members of the HarHouston and the surrounding areas have free access to top-notch ris County Judiciary, and the program is designed to facilitate CLE courses and programming. networking among members of the bar and the bench in more The complete calendar of CLE Seminars is available for review casual settings over coffee and donuts. Lunch & Learns are on the HBA’s website and members now receive a CLE update hour-long CLE presentations, organized in a “brown bag” foremail every Wednesday. mat. Attendees are welcome to bring their own lunch, while taking in an hour’s worth of MCLE credit. Robert (“Rob”) Ford is a trial lawyer and a founding partner of In the wake of Hurricane Harvey, the CLE Committee has Fogler, Brar, Ford, O’Neil & Gray LLP, a Houston litigation bousupported multiple CLEs being coordinated by firms and other tique. His practice focuses on all types of high-stakes civil cases, organizations, but has also put together unique programs for representing both plaintiffs and defendants, and even attorneys in attorneys: legal malpractice cases. 44
in pro f e s s i o n ali s m
The Honorable Sylvester Turner Mayor, City of Houston
rofessionalism to me is having good judgment, being true to your word and getting the job done. If you are starting out in a new role, it is important to learn from others and be someone who will not give up until the job is done. Itâ€™s also important to extend professional courtesy to others. The way you act and treat others will follow you and pay dividends wherever you go. Regardless of your role, as mayor, a teacher or part of the janitorial team, being professional makes a difference. I learned how to exhibit professionalism from my mom. She had no formal education but always carried herself with professionalism. She was a maid at the Rice Hotel who went to work every day on time and was known as a hard worker. I am proud to be the mayor of Houston and am honored to work alongside thousands of hardwork-
ing professionals. Our public safety team from the police and fire departments, our Public Works and Engineering personnel and our other employees strive to provide an array of services in a professional manner. During Harvey, we had employees who faced their own difficulties and challenges but remained professional and came to work every day ready and willing to help others. I will never forget hearing about 3-1-1 employees who charged their computers from their vehicles and took customer calls from home. Police officers who worked long shifts knowing that their own homes had flooded. They could have easily decided not to come into work, but instead chose to continue to do what they do best, help others. So professionalism isnâ€™t just a veneer. It can help you in every part of your life and even save the lives of others.
How Wide are the Arms of State Court Jurisdiction?
The Houston Lawyer
By Jennise Stubbs and Sonila Themeli
t is well-settled precedent that a nonresident defendant may be subject to a state court’s jurisdiction only when the defendant has “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945.) Nevertheless, lower courts have continually struggled with the perimeters of personal jurisdiction, both general and specific, resulting in conflicting decisions across the United States. The United States Supreme Court clarified the boundaries of general personal jurisdiction with its opinions in Goodyear Dunlop Tires Operations, S.A. v. Brown Goodyear, 564 U.S. 915 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014). The Court held in Goodyear that a corporation may submit to a state’s general authority by explicit consent, when the corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State,” or by making that state its place of incorporation or principal place of business. Goodyear, 564 U.S. at 918-19. And, in Daimler, the Court explained that a non-resident corporation is subject to general jurisdiction in the fora of its place of incorporation and principal place of business because those “are paradigm bases for
general jurisdiction.” Daimler, 134 S. Ct. Court of California held that it had speat 760. Prior to these decisions, corpocific personal jurisdiction over BMS as to rations engaged in nationwide business all the plaintiffs’ claims. BMS appealed activities found themselves subject to a as the non-resident plaintiffs only. state court’s general jurisdiction in mulThe U.S. Supreme Court reversed the tiple and often unforeseeable forums. state court decision holding that there Soon after Daimler, the high Court were not adequate links between Calireemphasized precedent on specific fornia and the nonresident-plaintiffs’ personal jurisdiction established in Inclaims. The Court emphasized that, ternational Shoe, Burger King Corp. v. “[i]n order for a state court to exercise Rudzewicz, 471 U.S. 462 (1985), Helicopspecific jurisdiction, ‘the suit’ must teros Nacionales de Colombia, S.A. v. Hall, “aris[e] out of or relat[e] to the defen466 U.S. 408 (1984), and dant’s contacts with the others. The relationship forum” for each indi...lower courts between the defendant, vidual plaintiff’s claims. have continually the forum, and the litiBMS, 137 S. Ct. at 1780. gation, “must arise out The Court also reiterated struggled with of contacts that the ‘deits prior holdings, “there the perimeters of fendant himself” creates must be an affiliation bewith the forum State.” tween the forum and the personal Walden v. Fiore, 134 S. underlying controversy, Ct. 1115, 1122 (2014). principally, [an] activjurisdiction, Nonetheless, the applicaity or an occurrence that both general and tion of specific jurisdictakes place in the forum tion precedent by lower State and is therefore specific... courts has been murky at subject to the State’s regtimes. Courts differed in how they evalulation.” Id. at 1780. Thus, “specific juuated whether a plaintiff’s claims “arise risdiction is confined to adjudication of out of or relate to” a non-resident defenissues deriving from, or connected with, dant’s contacts with the forum. the very controversy that establishes juThis year, however, the U.S. Supreme risdiction.” Id. Court, gave further clarification by reafWith its holding in BMS, the Court firming settled principles of personal juended any divide among the lower risdiction in their decision Bristol-Myers courts. The decision confirmed the limSquibb Co. v. Superior Court of California, its of a state courts’ exercise of specific San Francisco Cty., 137 S. Ct. 1773 (2017) jurisdiction over out-of-state defendants (“BMS”). In BMS, 592 non-resident plainand continues the trend of narrowed aptiffs were joined with 86 California resiplication of personal jurisdiction. dents in a single, California state court action, claiming they had been injured Jennise Stubbs is a partner at Shook, by ingesting BMS’s pharmaceutical drug Hardy & Bacon, L.L.P. in Houston. She Plavix. BMS, 137 S. Ct. at 1777-78. BMS represents companies in the pharmaceutical is a global biopharmaceutical company and medical device, manufacturing, retail, incorporated in Delaware and headquarprofessional, medical and service industries. tered in New York. Id. BMS sold Plavix Sonila Themeli is an associate at Shook, in California, as it did in the rest of the Hardy & Bacon, L.L.P. in Houston. She country. But, Plavix was not developed, represents pharmaceutical and medical manufactured, labeled, or packaged in device companies in product liability California. Id. Regardless, the Supreme litigation.
Oil Capital: The History of American Oil, Wildcatters, Independents and Their Bankers By Bernard F. Clark, Jr. Bernard F. Clark, Jr., 2016
Reviewed by Owen L. Anderson
hen I initially read the draft manuscript of this book, written by Houston lawyer Buddy Clark, I commented that “Oil Capital is a well told and thoroughly researched history of the evolving relationship between American oil and gas producers and their lenders.” Mr. Clark’s legal training and 30 years’ experience in oil and gas finance give him a unique ability to crystalize this “only-in-America” story of how our legal system, availability of natural resources, private mineral ownership, and ready access to capital have helped make America the world’s leading petroleum-based economy. Oil Capital builds the foundation for the reader to appreciate how these unique combinations have supported thousands of independent producers over the last 150 years. The unique subject matter of this book will appeal not only to practitioners, students, and scholars of energy finance and oil and gas law, but also to casual readers
interested in the rich history of this fascinating industry. Mr. Clark’s long-time deep connections with the oil and gas industry in which he grew up are readily apparent throughout the book. With his father’s 50-year career as George Mitchell’s CFO, he brings to light an interesting perspective on how the company’s constant need for capital played an important role in Mitchell Energy’s ultimately successful efforts to produce unconventional hydrocarbons from the Barnett Shale. Because of these efforts, Mitchell is known as the “father of fracking”—a technology that has triggered the industry renaissance over the last decade to the point that U.S. domestic production has risen to levels not seen since the 1970s. The story of George Mitchell’s search for hydrocarbons, and his constant need for capital, is a theme common to many of the wildcatters and independent producers chronicled in the book. Mr. Clark begins Oil Capital with an observation from Joe Bridges, an engineer, banker, and independent producer: “The oil and gas business is always out of money. It just inhales capital.” This has been especially true for unconventional oil and gas resources. Mr. Clark, who is co-chair of Haynes and Boone, LLP’s Energy Practice, has directed certain chapters of the book to young professionals starting their careers in energy law and finance. The book provides a primer on the evolution of energy loan documentation—from the first half of the 20th Century through the introduction of the revolving borrowing-base loan structure in use today. Other chapters have a more general appeal, covering the early wildcatters, the Pro-Ration Wars in the East Texas field during the early 1930’s, the formation of OPEC, and later, the causes and effects of the meltdown of Texas’ energy lenders in the 1980s and the use of hedging as a tool to enhance financing options for producers. Oil Capital provides the reader the his-
torical perspective to understand how U.S. oil and gas production scaled up so rapidly in 2005-2015, based on private mineral ownership, viable and competitive independents, and an accessible menu of financing alternatives that were both standardized and diverse. With this historical perspective in hindsight, it looks easy—too easy—in light of the impact on supply and hence the dramatic drop in commodity pricing. But this financial infrastructure required a century of trial-and-error evolution to develop. Educating the reader on this evolution, in order to gain a better understanding of current industry conditions, was doubtless a primary purpose for writing this book. In the chapter titled “OPEC Delivers a Thanksgiving Turkey,” Mr. Clark ends with an analysis of the latest industry downturn that began at the end of 2014. Mr. Clark describes: “While American producers sat down for Thanksgiving dinner in November of 2014, OPEC members announced that they would not decrease their output that would have stemmed declining world oil prices. Sometime between the stuffed turkey and the pumpkin pie, the price of oil dropped more than 10%. And, as world markets digested the news, WTI fell from more than $73 per barrel prior to Thanksgiving to $53 as the New Year began.” Following this price collapse, more than 100 U.S. producers, over-leveraged on a cornucopia of available financing opportunities, sought relief from the bankruptcy courts, wiping out hundreds of billions of dollars of investment. But even this magnitude of loss has not ruined the appetite for producers and financiers to begin again to provide new capital for producers to search for more hydrocarbons. Industry participants, old and new, would do well to remember how we got to where we are today by better understanding the past. Oil Capital is wel-written and well-
Continued on page 49 November/December 2017
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From page 47
documented, with over 1,000 citations, and based on over 50 personal interviews with industry professionals. This book will be a go-to reference for many years to come. Owen L. Anderson is a Professor and Distinguish Oil and Gas Scholar at The University of Texas School of Law.
Solo Lawyer by Design, a Plan for Success in Any Practice By Gary P. Bauer ABA Book Publishing, 2017
Reviewed by Raymond L. Panneton
aking the decision to go solo is not an easy one. Questions of the unknown, whether rational or not, creep into your mind to the point of creating paralysis by analysis. What is more, colleagues from around the country often share the same questions and concerns about flying solo. While every situation is different and every practice varied, Gary P. Bauer, in his new book Solo Lawyer by Design, a Plan for Success in Any Practice, answers some of the oft-asked questions and attempts to assuage certain fears of practitioners who are thinking of hanging their own shingle. While many tomes have been authored on starting a law practice, Gary Bauer is uniquely situated to provide insight that others may lack. In 1999, Bauer was ap-
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Published on Dec 1, 2017