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Becoming Parents New Parents Experienced Parents You & Your Aging Parents For All Parents 73rd Annual Harvest Celebration

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THE HOUSTON

inside...

Volume 60 – Number 3

November/December 2022

Parents in the Law

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contents November/December 2022

Volume 60 Number 3

FEATURES

10

Becoming Parents

18

New Parents

Parents 10 Becoming Gestational Agreements:

Potential Contractual Relief for Married Couples Unable to Give Birth to a Child

By Marjorie Maxwell

The Difficult Journey Toward Adoption

By Katie L. Flynn

Covering Dobbs

By Anna Archer

Are Women Abandoned to Die Without Roe v. Wade?

By Emily Cook

26

Experienced Parents

30

You & Your Aging Parents

Think Whether, When, and How to Become a Parent is a Personal Decision? The State of Texas Disagrees

By Robin O’Neil

Parents 18 NewHouston Courthouse Lactation

Rooms Support Attorney Mothers

By Kristin Kruse Lotz and Jill Schumacher

Becoming a New Mom is Hard– But Law Firms Don’t Have to Make It Harder

By Nikki Morris

Normalizing Paternity Leave

By Lane Morrison

34

For All Parents

36

Parents 26 Experienced What Every Parent Needs to Know About the ARD Process

By Carl J. Gustafson

Law and Order: Navigating Student Discipline in Texas Schools

By Stacy Cash

Guardianship: Protecting Your Child Past Minority

By Lauren Veillon

Aging Parents 30 YouAging& Your Parents: What to Expect and How to Plan

By Theresa A. Clarke

The Houston Lawyer

Your Aging Parents: Protecting Them From Fraud On the Cover (From L to R starting top left, then diagonal to each row): Brooksie Bonvillain Boutet with her husband, Ryan, and their daughter, Camille, coming home from the hospital. Cory Sweers with his three children. David T. Lopez with his wife, Romelia, and their daughter, Vianei Braun, partner at Decker Jones law firm in Fort Worth. Kylie Loya with her family. Anna Archer with her daughters, Rachel and Tina. Mason Malpass with his son, Thomas.

Carl Gustafson with daughter, Autumn (11). Stacy Cash with her son, Liam Washington (7 months).

Rachael Thompson with her husband, Dave, and their sons, Joel and Sam. Jill Schumacher with her family. Katie Flynn with her husband Jason and their daughters Sophia (9) and Vivienne (6 ).

By Joseph Frank

34 ForSoAllYouParents Want to Take FMLA Leave: Here’s What You Need to Know

By Haley Kurisky

36 73rd Annual Harvest Celebration

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2022. All rights reserved.

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November/December 2022

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contents November/December 2022

Volume 60 Number 3

departments

35

40

Message 6 President’s Parenting on the Billable Hour

By Christopher V. Popov

the Editor 8 From Just In the Nick of Time

By Brooksie Bonvillain Boutet

Lawyer Spotlight 35 Young Quentin L. Smith THE RECORD 40 OFF Jason Newman: Shaped by Swine

Showmanship

By Lane Morrison

41

42

Profile in professionalism 41 ANatalie DeLuca

Managing Counsel, The Harris County Attorney’s Office

Spotlight 42 Committee HAY Center Committee: Fostering

Community

By Charles D. Shaw, Jr. Spotlight 43 Section Family Law Section

By Carly Milner

trends 44 legal Fifth Circuit Court Holds That

43

46

Courts—Not Arbitrators—Determine Whether Arbitration Agreements Are Enforceable and Upon Whom

By Mark P. Yablon

Reporting the News Is Not a Crime

By David T. Lopez reviews 46 Media Crude Ambition

Reviewed by Benjamin K. Sanchez

Wrongful Convictions in Sexual Assault: Stranger Rape, Acquaintance Rape, and Intrafamilial Child Sexual Assault Reviewed by Jennifer Smith

The Houston Lawyer

48 Litigation MarketPlace

4

November/December 2022

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Join the HBA 100 Club!

TThe Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools, and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani, LLP Hagans Montgomery Hagans Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin LLP Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC

Kane Russell Coleman & Logan PC Kean | Miller LLP Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Liskow & Lewis McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane LLP Sponsel Miller Greenberg PLLC Strong Pipkin Bissell & Ledyard LLP

Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart & Boundas, LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom LLP McDowell & Hetherington LLP Yetter Coleman LLP Firms of 50-99 Attorneys AZA Law BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC

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Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals

November/December 2022

5

president’s message

By Christopher V. Popov Vinson & Elkins LLP

A

Parenting on the Billable Hour

The Houston Lawyer

books designed to help busy professionals find happiness; ny parent who has to work, faces the age-old diI’ve read dozens of them. In some form or another, most lemma: how do you balance your time between of those books implore you to take inventory of what is work and parenting? For all the wealth and techimportant to you, and to set measurable, personal goals nological advances in the country, no one has that align with those things that you find most important. figured out how to get more than 24 hours out of I am particularly fond of Brian Tracy’s Master Your Time, a day. Time is the scarcest resource of all. And parenting Master Your Life. requires parents to spend time with their chilI will admit that there was a time when I dren. spent most of my hours away from the office On the one hand, lawyers have it easier than obsessing about the work I wasn’t doing and most Americans. Our salaries make it possible It is easy the opportunities I was leaving on the table. for us to afford day care or nannies. And many lawyers make enough money to support a houseto say in the That is a terrible way to live. Once I stepped back and made an honest inventory of what hold, freeing their spouses to shoulder more of abstract that personal and professional success would the parenting load. For millions of hardworking Americans, those are unimaginable luxuries. every parent look like for me—one year, five years, and ten years out—I realized that, if I was going On the other hand, the legal profession imposshould choose to build the life I wanted for myself, it was es unique demands on parents that can be hard to appreciate if you haven’t practiced law and family over work essential for me to spend time away from the office with my kids. raised kids. The profession is intense, demandat some point in This exercise only works if the goals you ing, and uniquely time-consuming. So many of us earn our livings on the billable hour—an the day, but set are concrete and measurable. “Be a good dad,” for example, is not a concrete or meaeconomic model that knows no beginning or identifying that surable goal. My goals include things like end to the work day. Each day, for every one of those incremental 24 hours, we have the choice point can be taking two memorable family vacations per year, and attending every sports event my to work for an easily quantifiable fee. And on difficult.” children compete in. Once I made a list of the flip side, there is a quantifiable cost to every measurable goals, that I planned to hold myhour we choose not to work. self accountable to, it liberated me to appreciate those It is easy to say in the abstract that every parent should hours as time well spent. Instead of hours where I was choose family over work at some point in the day, but idennot working, those hours became ones I had to spend if I tifying that point can be difficult. Unlike billable hours, was going to be the father I wanted to be. This may sound the value of a parenting hour is not easily quantifiable, simple and obvious, but it was transformative for me. and in my experience, not every parenting hour is created Organizing my life around personal and professional equal. I can think of moments I’ve spent with my children goals also had the benefit of shining a light on the ways that are more valuable than any professional milestone I I wasted time on things that did not advance my goals. could ever achieve. I can also think of moments where my The truth is that I wasn’t always working; I spent plenty kids would have been just as well if I were at a deposition of time watching other people’s kids play sports on televiin New York. sion, and staying out too late, and convalescing the folOf course, trying to calculate the financial equilibrium lowing morning. Editing those things out of my life unbetween the value of your billable hours and your parentlocked wasted hours that I could spend with my kids, on ing hours is a crude exercise, and a fool’s errand. But how my career, and on other life goals. It was my secret to getdo we know when we’ve struck the right balance? ting more than 24 hours out of day and becoming a better For me, the key to finding that balance was personal and dad and a better lawyer. professional goal-setting. There are hundreds of self-help 6

November/December 2022

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thehoustonlawyer.com

thehoustonlawyer.com

November/December 2022

7

from the editor

By Brooksie Bonvillain Boutet Shipley Snell Montgomery LLP

Associate Editors

Anna M. Archer U.S. District Court

Ryan Kent Harris County District Attorney’s Office

Elizabeth Furlow Malpass Baker Botts

Carly Milner Foglar Brar O’Neil & Gray

The Houston Lawyer

Nikki Morris BakerHostetler

Andrew Pearce BoyarMiller

8

O

Just In the Nick of Time

n October 5, my husband Ryan and I welcomed our daughter Camille Joyce Boutet into our family. We were very thankful to have eight and twelve weeks of leave, respectively, to learn the ropes of parenting and spend quality time together, without the pressures of practicing law. Notwithstanding my incessant nesting in the months leading up to Camille’s arrival, some things simply could not be prepared for, only learned on the job. Perhaps one of the most surprising things is that any task now takes twice as long to complete with a baby in the home and, similarly, you should probably budget an extra hour if you have any hopes of arriving somewhere on time. With all of the challenges of integrating a newborn into our lives, we found some of our strongest support in the Houston legal community—from surprise baby showers to thoughtful meal deliveries, and simply asking how we were adjusting and then genuinely listening.

This issue on parents in law was underway just in the nick of time to give us the perspectives of several other young lawyers who are in the same boat as we are. I was able to enjoy Camille knowing that former editor in chief Anna Archer and new board member Maggie Lu had this issue well in hand as the guest editors charged with curating content on this topic, which—I promise—was conceived last bar year in the early planning stages for this year—not as my personal request for a how-to-parent-while-lawyering guide.

However, it has become just that. I have so enjoyed reading each and every article, from the becoming parents to aging parents’ sections. Of course, the former is most topical for me right now, but there is excellent content throughout.

They truly thought of something for everyone, even those of us without children.

In the first section—becoming parents—this issue has articles on starting a family in a variety of ways; maternity and paternity leave trends and tips for finding the best pos-

November/December 2022

thehoustonlawyer.com

sible options for your family when welcoming a new child (including a few words from the Boutets); and where nursing mothers can express breastmilk in Harris County courthouses.

The road to parenthood is not always easy and can be fraught with devastating setbacks that can lead to difficult decisions. Over the past year, we have seen significant changes in abortion laws and been flooded with opinions on the resulting impacts on healthcare.

This is not only a national issue but, as we all have seen, our state is on the forefront of this evolving legal landscape. And, yet, at the same time—the matter is a deeply personal one, as well.

We, as an editorial board, thought that it was important to address recent developments on abortion laws and have included pieces on either side of the issue.

For those who have older children, you might enjoy the articles on school discipline proceedings and guardianship for children with special needs.

Whether or not these issues affect your own family, the information in them can be used to assist others in the community with informal advice or even taking a pro bono case.

And, we even have content for those in the season of life with aging parents. One piece provides thoughtful suggestions on how to prevent elder fraud, while the other helps attorneys think through planning for their parents’ care later in life—ideally sooner rather than later.

In addition to guest editing our print issue, Anna Archer speaks with several practicing lawyer parents on their approaches and advice in season three, episode three of our podcast. You can find Behind the Lines: The Houston Lawyer Podcast wherever you listen to your podcasts.

After reading this issue, I feel better equipped to return to work as a new mother and start this chapter of my life, and I hope that our readers also find that this content is beneficial. I look forward to rejoining my firm in January and putting the advice throughout these articles into practice.

Thank you for reading The Houston Lawyer.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

Christopher V. Popov

Daniella Landers

Diana Gomez

David Harrell

Greg Ulmer

Jennifer A. Hasley

Second Vice President

Greg Moore

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November/December 2022

9

Becoming Parents

Gestational Agreements:

Potential Contractual Relief for Married Couples Unable to Give Birth to a Child

W

By Marjorie Maxwell

hile most states allow some form of surrogacy, Texas is one of relatively few states to statutorily authorize gestational agreements designed to protect intended parents and gestational mothers alike.

With careful attention to the strict statutory requirements in Texas Family Code sections 160.751 through 160.763, gestational agreements can be used to effectively clarify parental rights and responsibilities of the parents and the surrogate mother. Under a valid gestational agreement, the intended parents must be married and provide medical evidence showing that the intended mother either cannot carry a pregnancy to term or can only do so at an unreasonable risk to her physical or mental health or to the unborn child’s health.

The gestational mother must have previously delivered at least one child and must show that carrying another pregnancy to term would not pose an unreasonable risk to her physical or mental health or to the unborn child’s health. Unlike traditional surrogacy arrangements, Texas gestational agreements prohibit a genetic connection between the gestational mother and the child.

A valid agreement must require that the eggs and sperm used in the assisted reproduction procedure be retrieved from the intended parents or their donors. A gestational agreement must be in writing and signed by the prospective gestational mother, her husband (if she is married), each donor who is known and not an intended parent, and each intended parent. The agreement must be entered into at least 15 days before the date the eggs, sperm, or embryos are transferred to the

prospective gestational mother for conception or implantation.

A valid gestational agreement must also provide (1) that the prospective gestational mother agrees to pregnancy by means of assisted reproduction; (2) that the prospective gestational mother, her husband (if married), and each donor other than an intended parent relinquish all parental rights and duties with respect to a child conceived through the assisted reproduction procedure; (3) that the intended parents will be the parents of the child; (4) that the gestational mother and each intended parent agree to exchange all relevant health information regarding the gestational mother and each intended parent; and (5) that the physician who will perform the assisted reproduction procedure has informed the parties of the rates of successful conceptions and other health and psychological risks associated with the procedure.

It is important to note that the statute specifically prohibits any limitations on the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. Theoretically, this protects the gestational mother’s right to consent to abort the pregnancy if an examining physician determines that the gestational mother’s life is in danger.

The agreement should specify how long the gestational contract will remain in effect and should further specify who is responsible for healthcare expenses that result from the pregnancy. While the statute specifically permits the intended parents to pay medical costs, it does not address whether the intended parents can agree to further compensate

the gestational mother. Nonetheless, additional compensation is regularly included in contractual agreements and should not prevent court validation. These statutory protections and guidelines provide intended parents and gestational mothers with parameters for constructing valid, enforceable agreements that provide a measure of certainty on an otherwise uncertain, often stressful, path to parenthood.

Marjorie Maxwell is a senior associate with Laura Dale & Associates P.C. who has practiced family law for 15 years and is board certified by the Texas Board of Legal Specialization, Family Law.

The Difficult Journey Toward Adoption

A

By Katie L. Flynn

• A health, social, educational, and genetic history of the doptions are undoubtedly the happiest part of my job child (with certain exceptions under Texas Family Code as a family lawyer. In a world filled with constant argu§162.008); ing, I breathe a sigh of relief when I look at my calen• A criminal history report of the adopting parents; dar and see an adoption set. What most people do not • Consent from the managing conservator of the child, if anticipate, however, is the amount of work needed to finalize applicable; and an adoption.

• Consent from any child over the age of 12.

I have spent a great majority of my practice serving as an attorney ad litem on cases involving the Texas Department of Every adoption requires that parental rights have been terFamily and Protective Services (TDFPS), or what most people minated. There are placements known as “legal risk” placeknow as Child Protective Services (CPS). In doing so, I have ments and “legally free” had the opportunity to placements. A legal risk forge relationships with placement is when a child different agencies that who has parental rights assist in the placement intact needs placement. of children with substiIf you accept a legal risk tute caregivers. These placement, you are adoptcaregivers could be, for ing a child knowing that example, foster parents, the biological parents may relatives, or people with seek the child’s return. a close relationship to A legally free child’s pathe child. I also get calls rental rights have been from people who want terminated, so the child to adopt a child but do is therefore free for adopnot know where to start. tion.

So, where do you begin?

You may also decide To understand the if you want to be a foster adoption process, it is Katie with her husband, Jason, and their daughters, Sophia and Vivienne. parent of a child who was removed from the care of his or her helpful to know the different avenues toward child placement. biological parents and is in the conservatorship of TDFPS, or Texas Family Code chapters 162 and 102 outline many of the if you want to go through a private agency. Taking placement statutory requirements for adoption of a child and the different of a child through TDFPS has benefits but comes with the pathways toward adoption. most risk. As a foster parent of a child in the conservatorship The easiest route to placement is available when biological of TDFPS, you will receive financial assistance, Medicaid for parents have asked you to adopt their child. In that instance, the child, and assistance in getting the child necessary medical you would want to hire an attorney who is familiar with termiand mental healthcare. However, you will have to live through nation and adoption. The attorney would need to establish the a rollercoaster TDFPS case, which includes a bevy of procepaternity of the biological parents, prepare relinquishments for dural steps. the biological parents, and prepare all of the documents reCases with TDFPS should conclude within 365 days of required to finalize an adoption. These documents are outlined moval of the child, but they involve multiple, procedurallyin Texas Family Code Chapter 162 and include: thehoustonlawyer.com

November/December 2022

11

required hearings. TDFPS must take reasonable steps to reunify the child and the biological parents and will always prefer relative placements to non-relative placements. This leaves non-relative placements in limbo for the better part of a year, as Texas Family Code §102.003(a) (12) does not allow foster parents who have placement of a child through TDFPS to file suit until the child has been in their home for at least 12 months.

Finally, you can take placement of a child who was voluntarily placed in the care of an agency for the purpose of termination and adoption. This is the most expensive route, but because the agency generally has a contractual obligation to comply with statutory requirements of the Texas Family Code, the risk of losing the placement will be greatly reduced. That obligation, combined with biological parents supportive of termination and adoption, makes this the safest bet for parents.

The adoption process can be overwhelming. Throughout my practice, I have found that most substitute caregivers begin the adoption process without any idea of what to expect. Successfully navigating the intricacies of the system requires a significant level of knowledge and training. I value any opportunity to assist clients with a case involving termination or adoption. If you find yourself needing help, feel free to reach out to me at any time.

DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations

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W W W . T H O M A S R O N E Y L L C . C O M

Katie L. Flynn has been licensed as an attorney in the state of Texas for over 13 years. Her practice has been focused primarily on family law, and more specifically on cases that deal with termination and adoption. She is of counsel at The Stout Law Firm, P.L.L.C., 201 W. 16th Street, Houston, Texas, 77008, phone number (713) 980-4300.

Katie is married with two children—Sophia, who is nine years old, and Vivienne, who is six years old thehoustonlawyer.com

November/December 2022

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Covering Dobbs

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By Anna Archer

hen the editorial board of The Houston Lawyer began considering articles to include in this issue about lawyers who are also parents, Dobbs v. Jackson Women’s Health Org.1 was top of mind. The editorial board has a strict policy of remaining neutral. Dobbs is definitely not a neutral topic. Almost everybody has a strong opinion about the dramatic change in direction brought about by the Dobbs decision. The easiest way to remain neutral would be to not cover Dobbs. However, one of this publication’s purposes is to document major changes in the law that impact Houston lawyers and our community. There is no question that Dobbs is such a change. Of course, the perception of how the changes brought about by Dobbs impact people’s lives is colored by one’s political viewpoint. The board elected to document Dobbs’ impact while recognizing that readers of this publication are viewing the issue through different lenses by first presenting a neutral analysis of what the U.S. Supreme Court held, followed by viewpoints from two attorneys in the Houston area who have opposing interpretations of Dobbs’ impact to Texas women. The editorial board of The Houston Lawyer, of course, takes no position on any of the viewpoints expressed herein.

The Dobbs Court considered whether a Mississippi law prohibiting abortions after the fifteenth week of pregnancy was unconstitutional. The State of Mississippi argued that the Court should overrule the two cases that established that a woman’s right to choose an abortion is protected by the liberty interest embodied in the Due Process Clause of the Fourteenth Amendment, Planned Parenthood of Southeastern Pa. v. Casey and Roe v.

Wade, and return the ability to regulate abortions to the States.

The Court agreed that Casey and Roe should be overruled. It reasoned that the “Constitution makes no reference to abortion,” and determined that “no such right is implicitly protected by any constitutional provision,” including the Due Process Clause. While the Court acknowledged that some rights are “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty” even if they are not expressly referred to in the Fourteenth Amendment as protected, after considering the history, the Court ruled that “the right to abortion does not fall within this category.”2 As to Roe and Casey, the majority determined that “Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed” and, together with Casey, “represent[ed] an error that [could] not be allowed to stand.”3 The Court therefore overruled those cases and “return[ed] the issue of abortion to... legislative bodies,” noting that this allowed “women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”4 Abortion is thus in the hands of voters in each state. As discussed more fully in the articles that follow, a Texas statute prohibiting abortions in most circumstances became effective 30 days after the Court’s final judgment in Dobbs.5 While the majority of Texas voters appear to favor restrictions on abortion, the margins are extremely narrow when it comes to a complete ban.6 There are strong opinions on all sides, and regardless of one’s viewpoint, the Dobbs decision and resulting legislation in Texas has dramatically changed the legal landscape for people who are considering becoming parents and—viewed from any lens—will have a significant impact on members of our community.

Anna Archer (pictured here with her daughters, Rachel and Tina), is a career law clerk and an associate editor on the editorial board of The Houston Lawyer.

She is one of the guest editors of this issue.

She is also host of Behind the Lines: The Houston Lawyer Podcast.

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November/December 2022

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Are Women Abandoned to Die Without Roe v. Wade?

By Emily Cook

he seminal cases—Roe v. Wade (1973) and Doe v. Bolton (1973)—purporting to abrogate states’ control over the abortion debate have been met with sincere, thoughtful criticism for nearly 50 years. Serious jurists, academic writers, and brilliant lawyers, even on the pro-choice side, have condemned the analysis—or lack thereof—by which abortion as a federal right was concocted. Finally, the current makeup of the Supreme Court of the United States had the courage and intellectual honesty to say what decades of legal scholars and judges have known. As the Court astutely pointed out in its Dobbs v. Jackson Women’s Health Org. opinion: Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State... Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.7 Unfortunately, with the overturning of Roe and Planned Parenthood v. Casey (1992), many abortion advocates have taken to propagating the false narrative that women will no longer be able to receive critical care, such as miscarriage or ectopic pregnancy treatments. Furthermore, they are attempting to lump these distinct situations in with cases where living preborn babies are given a “non-viable” diagnosis in an attempt to justify legalized abortion against children with possible disabilities. Such claims are intentionally confusing and a complete fiction. Each of these situations require compassion and sensitivity from both sides of the abortion debate; none deserve to be relegated to talking points or to be used as political pawns.

From the pro-life perspective, the obligation to primarily protect innocent human life clearly guides us in how we should personally and legally consider these cases to best preserve the life and dignity of both mother and child. These dual considerations are adequately reflected in Texas’ abortion laws. A plain

reading of our laws clearly shows that timely care for miscarriages or ectopic pregnancies is permitted. Unfortunately, our physicians and care teams are being intentionally misled into what the law does and does not permit. With the willful silence of the legal profession, medical practitioner advocacy groups and the media are opting instead to create a political narrative at the expense of placing women in grave danger.

With SCOTUS having returned the abortion question to the people and their representatives, Texas immediately protected all preborn life from the moment of fertilization8 through our pre-Roe statutes (Civil Statutes, Article 4512.1), our homicide laws (Chapter 19, Texas Penal Code), and the Trigger Ban (House Bill 1280, 87R).

Before considering these newly enacted pro-life protections, it is helpful to first see how the Texas law defines abortion (Health and Safety Code Section 245.002): The act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the

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intent to cause the death of an unborn child of a woman known to be pregnant.9 State law goes on to clarify what is not an abortion: An act is not an abortion if the act is done with the intent to: (A) save the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy.10 Thus, the state definition of abortion on its own already clarifies that treatment to provide lifesaving or necessary medical treatment to the living preborn child, to remove a nonliving miscarried child (when the preborn child has tragically but naturally passed away in-utero), and to remove an ectopic pregnancy (a child implanted in the fallopian tubes that will undoubtedly pass away and cause severe complications to the mother’s health and possibly her death) are all excluded from the term. This clearly means that Texas abortion laws do not apply to medical treatment in those enumerated circumstances.

Texas law also then clarifies exceptions for the life of the mother in medical emergencies in Chapter 171.0124 of the Health and Safety Code: A physician may perform an abortion without obtaining informed consent under this subchapter in a medical emergency. A physician who performs an abortion in a medical emergency shall: (1) include in the patient’s medical records a statement signed by the physician certifying the nature of the medical emergency; and (2) not later than the 30th day after the date the abortion is performed, certify to the department the specific medical condition that constituted the emergency.11

The Texas Trigger Ban12 and Texas Heartbeat Act13 further clarify that abortion is allowed in cases to save the life of the mother, since in these tragic cases one life may be spared rather than two being lost. This provision clearly incorporates lifesaving medical care, such as treatment for an ectopic pregnancy or other required medical care, without which the mother could not survive.

Many mainstream news outlets are repeatedly running stories of pregnant women being denied needed care. Texas’ abortion laws do not require this delay of care; quite to the contrary, the Texas Legislature has carefully taken into consideration when a very much wanted pregnancy and unborn child begins to pass away in the womb,14 and the various physical issues that can endanger a mother’s life.15 Additionally, miscarriages and ectopic pregnancies are not defined legally as an abortion.16 Instead of pointing fingers at the medical professionals or the politicians, we as a profession have a responsibility to adequately look at the law and advise our clients of what is and is not permitted.

Our failure to do so—or our complacency in remaining silent when misunderstanding runs rampant—is what is harming Texas women. We have the tools to save both women and innocent children; are we willing to use them?

Emily Cook is the general counsel of Texas Right to Life, the oldest and largest pro-life organization in Texas, where she specializes in abortion and patient advocacy issues, nonprofit corporate governance law, and campaign finance law. A graduate of Stephen F. Austin University and Baylor Law School, Emily has worked in various facets of the pro-life movement, including working numerous legislative sessions on behalf of Texas Right to Life.

Think Whether, When, and How to Become a Parent is a Personal Decision?

The State of Texas Disagrees

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By Robin O’Neil

s if becoming a parent wasn’t stressful enough on its own, Texans hoping to conceive (or hoping not to) have faced escalating challenges since the Supreme Court permitted Texas’ Senate Bill 8 (“SB 8”) to take effect last fall and later overturned Roe v. Wade.

SB 8 bans abortions after detection of fetal cardiac activity, which usually occurs around six weeks of pregnancy—long before viability and before many people know they are pregnant. Though the law openly and obviously defied the standard set by Roe almost 50 years ago—and created a cruel bounty system incentivizing private citizens anywhere in the country

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to sue Texans suspected of providing or aiding the provision of then-constitutionally protected abortion care—the Supreme Court permitted SB 8 to take effect on September 1, 2021.17 Given the high court’s handling of SB 8, it was no surprise when, 10 months later, the Court overturned Roe in Dobbs v.

Jackson Women’s Health Org.18 Immediately after Dobbs, Texas Attorney General Ken Paxton took the position that a 1925 law—the very law overturned by Roe in 1973—rose from the dead, exposing abortion providers and “accomplices” to civil and criminal liability.19 The Texas “trigger ban” also took effect post-Dobbs. The

ban expressly criminalizes all abortions in the state with no exceptions for rape or incest.20 While abortions may be provided to terminate an ectopic pregnancy or to save the life of the mother, the law is vaguely drafted, resulting in a pervasive chilling effect on doctors otherwise able to provide lifesaving abortion care.21 That means Texans are going without the care they need until the danger to their lives is so grave that some brave provider is willing to While abortions risk life in prison to save their patient’s may be provided life.22 All this, in a state that already to terminate an had stunningly high rates of maternal ectopic pregnancy mortality and morbidity—particularly among Black women—long before the or to save the life passage of these laws.23 of the mother, the So what does all this mean for Texlaw is vaguely ans who are trying to become pregnant?

‘‘

drafted, resulting in a pervasive chilling effect on doctors otherwise able to provide lifesaving abortion care.”

1. Have a Plan In Case Of Emergency If you have a complication involving a threat to your own health or a fetal anomaly, you will likely need to travel out of state if you decide to get an abortion. Keep in mind that most states in which abortion remains legal are experiencing huge backlogs due to the influx of patients from states that have banned abortions, and some of these states have their own restrictions on how late a pregnancy can be terminated.

The farther you are able to travel from areas with the strictest restrictions, the less likely you are to face long delays. It is worth familiarizing yourself with abortion providers in places like Oregon or Washington so you will know whom to contact in the event of emergency.

2. Pay Attention to Laws Proposed In The Upcoming Legislative Session The next frontier for proponents of abortion bans is what they call “personhood laws,” meaning legislation that would afford a panoply of legal rights to fertilized eggs.24 If these laws are passed, they will have an enormous impact on in-vitro fertilization (IVF), embryo storage, and miscarriage management, as well as certain kinds of birth control. The next legislative session could also bring restrictions on Texans’ ability to seek abortion care in other states, including efforts to criminalize the provision of abortions to Texas patients.

3. Consider Long-Acting Birth Control If you are not trying to become pregnant, consider talking to your healthcare provider about long-acting birth control, as some states have already restricted access to certain contraceptives, and Texas may follow suit.

4. Vote Your Values If you find these laws and those likely to come across as offensive and dehumanizing, pay attention, get engaged, spread the word, and vote for people up and down the ballot who share your values.

Robin O’Neil is a trial lawyer with her own firm, Fogler, Brar, O’Neil & Gray, LLP, in Houston. In 2021, Super Lawyers magazine named Robin as one of 50 “Up and Coming” women lawyers in Texas. Robin has served as the chair of Planned Parenthood Gulf Coast’s Board of Directors since July 2021.

Endnotes 1.

2.

3.

4.

5.

142 S. Ct. 2228 (2022).

Id. at 2242 (internal quotations omitted).

Id. at 2265.

Id. at 2277.

Texas Abortion “Trigger” Law Effective August 25th, 2022, TEX. STATE LAW LIBRARY (July 27, 2022), https://www.sll.texas.gov/spotlight/2022/07/texas-abortion-trigger-laweffective-august-25th-2022/.

6. Joshua Blank, An Overview of Abortion Attitudes in Texas: Four Things to Know, TEX. POLITICS PROJECT AT UNIV. TEX. (Sep. 28, 2021), https://texaspolitics.utexas.edu/blog/ overview-abortion-attitudes-texas-four-things-know.

7. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248–49 (2022).

8. Ken Paxton, Attorney General of Texas, ADVISORY ON TEXAS LAW UPON REVERSAL OF ROE V. WADE (June 24, 2022), https://www.texasattorneygeneral.gov/sites/default/ files/images/ executive-management/Post- Roe%20Advisory.pdf.

9. Tex. Health & Safety Code § 245.002(1).

10. Id. 11. Tex. Health & Safety Code § 171.0124.

12. H.B. 1280, 87th Legislature, Regular Session (2021). https://capitol.texas.gov/tlodocs/87R/ billtext/pdf/HB01280F.pdf#navpanes=0.

13. S.B. 8, 87th Legislature, Regular Session (2021). https://capitol.texas.gov/tlodocs/87R/ billtext/pdf/SB00008F.pdf#navpanes=0.

14. Tex. Health & Safety Code § 245.002(1).

15. Tex. Health & Safety Code § 171.002(3); H.B. 1280, 87th Legislature, Regular Session, § 4, § 170A.002(b) (2021). https://capitol.texas.gov/tlodocs/87R/billtext/pdf/HB01280F. pdf#navpanes =0.

16. Tex. Health & Safety Code § 245.002(1).

17. Amy Howe, Supreme Court leaves Texas abortion ban in place, SCOTUSBLOG (Sep. 2, 2021, 2:26 a.m.), https://www.scotusblog.com/2021/09/supreme-court-leaves-texas-abortionban-in-place/.

18. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

19. Ken Paxton, Attorney General of Texas, ADVISORY ON TEXAS LAW UPON REVERSAL OF ROE V. WADE (June 24, 2022), https://www.texasattorneygeneral.gov/sites/default/ files/images/executive-management/Post-Roe%20Advisory.pdf.

20. Tex. Health & Safety Code § 170A.002.

21. Julian Gill & Rebecca Carballo, Report: Texas Medical Association seeks action after hospitals delay care for pregnant patients, HOUS. CHRON. (July 15, 2022, 10:39 p.m.), https://www.houstonchronicle.com/news/houston-texas/houston/article/Report-TexasMedical-Association-asks-regulators-17308781.php; Julian Gill, Baylor says Texas abortion law uncertainty is making doctors lose confidence and needs clarity, HOUS. CHRON. (Sep. 14, 2022), https://www.houstonchronicle.com/news/houston-texas/health/article/ Baylor-says-Texas-abortion-law-uncertainty-is-17441947.php.

22. Julian Gill, A Houston mother’s terrible choice: deliver Theodora and watch her die or terminate her pregnancy, HOUS. CHRON. (June 1, 2022), https://www.houstonchronicle. com/news/houston-texas/houston/article/A-Houston-mother-s-terrible-choice-deliver17213571.php; Sarah Bahari, Texas woman nearly died from infection because doctors could not perform legal abortion, DALL. MORNING NEWS (Oct. 19, 2022, 9:46 a.m.), https:// www.dallasnews.com/news/texas/2022/10/19/texas-woman-nearly-died-from-infectionbecause-doctors-could-not-perform-legal-abortion/; Maria Mendez, Texas laws say treatments for miscarriages, ectopic pregnancies remain legal but leave lots of space for confusion, TEX. TRIB. (July 20, 2022), https://www.texastribune.org/2022/07/20/texas-abortionlaw-miscarriages-ectopic-pregnancies/.

23. Jesus Vidales, Delayed: Mandatory maternal mortality rate data won’t be ready for Texas lawmakers in time for 2023 session, TEX. TRIB. (Sep. 16, 2022, 5:00 p.m.), https://www. texastribune.org/2022/09/14/maternal-mortality-data-texas/.

24. Pooja Salhotra, Does a fetus count in the carpool lane? Texas’ abortion law creates new questions about legal personhood, TEX. TRIB. (Sep. 13, 2022, 5:00 a.m.), https://www.texastribune. org/2022/09/13/texas-personhood-laws-abortion-law/.

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New Parents

Houston Courthouse Lactation Rooms Support Attorney Mothers

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By Kristin Kruse Lotz and Jill Schumacher

fter the birth of a child, returning to work as a lawyer, or simply resuming activity in public life, often requires mothers to make adjustments. Attorney mothers who choose to breastfeed their babies, in particular, must balance the regular need to either breastfeed or express breastmilk with the often-stressful demands of legal careers.

Fortunately, many of the Houston courthouses either have lactation rooms or are currently in the process of establishing them. Sometimes the greatest hurdle attorney mothers face is simply finding the location of the rooms and learning how to access them—especially for attorney mothers who do not office downtown or are from out-of-town and need to pump while at the courthouse. This article aims to equip attorney mothers with current law related to lactation spaces and information regarding lactation rooms in downtown Houston courthouses.

State and federal laws protect the rights of breastfeeding mothers in public and in the workplace. Several laws in Texas give working mothers the right to express breastmilk at their workplace. See, e.g., TEX. GOVT. CODE §§ 619.002–.004 (a public employee is entitled to express breastmilk at her workplace and to receive certain accommodations). Texas law also protects the rights of breastfeeding mothers in public buildings, such as courthouses. Texas Health and Safety Code, section 165.002, provides: “A mother is entitled to breast-feed her baby or express breast milk in any location in which the mother’s presence is otherwise authorized.”

In recent years, significant efforts have encouraged authorities across the country to establish lactation rooms in courthouses. In January 2019, the American Bar Association adopted Resolution 101A, which encouraged the “estab-

lishment and maintenance of lactation areas in courthouses” to be used by “lawyers, jurors, litigants, witnesses, and observers” and outlined that the rooms should include a lock and a place to sit with a table and electrical outlet; provide accessibility to those with disabilities; and not be located inside of a restroom. The following year, Congress passed the Fairness for Breastfeeding Mothers Act (The Fairness Act), which generally requires all federal buildings that are open to the public, including federal courthouses, to provide the public access to a lactation room.1 The Fairness Act also included requirements for lactation room contents similar to those in ABA Resolution 101A. Some states also have begun to pass legislation requiring all their state courthouses to provide lactation rooms, including Illinois in 2018 and Nevada in 2021.2 In spring 2022, Florida’s legislature considered Senate Bill 1518, which would have required all state courthouses to have a space for women to nurse or pump. The Florida bill passed through the Florida Senate but ran out of time to be passed by the Florida House of Representatives. Despite the Florida bill not passing, the Florida Association of Women Attorneys worked to create a statewide Florida Courthouse Lactation Room Directory and Courthouse Lactation Space Handbook to assist courthouses in establishing lactation spaces.3 Although currently there are no laws in Texas that specifically require lactation spaces in state courthouses, many Houston courthouses either accommodate mothers who need a space to express breastmilk while at the courthouse or are in the process of creating a lactation room. The Bob Casey United States Courthouse (515 Rusk, Houston, Texas 77002) has a designated “Mother’s Room” on the first floor near the secu-

rity desk. It has a sign, lock, and comfortable chair. Users may request access at the security desk. Additionally, many of the judges have attorney conference rooms that may be used upon request for pumping or breastfeeding during trials and hearings.

The 1910 Harris County Courthouse (301 Fannin St., Houston, Texas 77002) has a conference room near the clerk’s office on the second floor that may be used upon request by attorney mothers. Access requests can be made at the clerk’s office.

At the Harris County Courthouse Complex, the Facilities Committee for the Board of Judges led by Judge Ravi Sandill is evaluating potential locations that will provide attorneys and members of the public access to lactation spaces in the three most frequented buildings: the Harris County Criminal Justice Center (CJC) (1201 Franklin St., Houston, Texas 77002), the Harris County Jury Assembly Room (Jury Assembly Room) (1201 Congress St., Houston, Texas 77002), and the Harris County Civil Courthouse (Civil Courthouse) (201 Caroline St., Houston, Texas 77002).

At the CJC, the Facilities Committee plans to convert a preexisting space on the first floor into a lactation room and is targeting January 2023 for completion of the renovation. At the Jury Assembly Room and the Civil Courthouse, the Facilities Committee plans to place freestanding, mobile lactation pods from the company Mamava. These lactation pods will be registered with the Mamava app, which will allow mothers to locate the pods and open them through the app. The Facilities Committee hopes to install the Mamava pods by March 2023. In the interim, while these new lactation spaces are being created, attorney mothers may continue to consult with court coordinators about access to

alternative rooms for pumping, such as jury rooms and conference rooms. Also, in the case of trials, it will likely still be best practice to consult with the court coordinator about whether there is an available alternative room on the same floor as the trial.

Life in the law, just like parenting, can be intense and exhilarating. By planning ahead to utilize Houston courthouse lactation rooms, attorney mothers can make plans to be both effective advocates at Houston courthouses and provide nourishment for their babies in the way they choose.

Kristin Kruse Lotz (pictured here with her kids, William and Abigail, both 5) is a commercial litigator at Daniels & Tredennick PLLC.

Jill Schumacher (pictured here with her family), is an appellate lawyer at Daniels & Tredennick PLLC.

Endnotes

1. 40 U.S.C. § 3318(b) (2020).

2. NEV. REV. STAT. § 1.095; 55 ILL. COMP. STAT. 5/5-1106.

3. Florida Association Women Attorneys, Florida Courthouse Lactation Room Directory and Courthouse Lactation Handbook, Lactation Space, https://fawl.org/page/lactation_ space (last visited October 21, 2022).

Becoming a New Mom is Hard–But Law Firms Don’t Have to Make It Harder

By Nikki Morris

T

Congratulations! You just welcomed a new bundle of joy into your life.

Please let us know if you need anything. We are so happy for you!

hese were the types of messages I received after having both of my daughters. While I appreciated the outpouring of love and support from my friends, family, and colleagues, the transitions in and out of the office were not necessarily easy. My first baby was born in 2019, and I was set to return to work in April 2020—just a few weeks after the pandemic started. Suddenly, I was not only navigating being a working mom, but also trying to do so while working from home without childcare—in a pandemic. My second was born earlier this year and I thought I was better prepared—but then she came two weeks late—after I had already transitioned off

all of my cases. Even though I built up a solid base to meet my hours requirement before leave, because of the unexpected delay, I found myself in a deficit when I returned to work.

With only six weeks left in the billable year when I returned, I scrambled to find enough work to meet my annual target with a baby and a toddler who do not always sleep through the night.

It was exhausting (and as I write this, I still have not quite recovered!).

Becoming a new mom is amazing, but it is also incredibly hard. Whether it is your first kid or your fourth, your family dynamic changes in ways that you cannot always predict or thehoustonlawyer.com

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anticipate. This is especially true for working moms, who must simultaneously prepare to give birth to a tiny human and transition off any outstanding work in a manner that protects their clients’ interests and balances any billable or other internal pressures. Then, after going through this major life transition, the “new mom” must figure out how to transition back to work, while caring for said tiny human and trying to meet any inoffice performance metrics. This does not even account for the physical and mental toll these changes have on women, some of whom may suffer from postpartum depression or anxiety or external pressures regarding the “correct” way to parent.

Law firms can help ease these transitions by putting policies in place that help manage the expectations of the new parent and the coworkers who help fill the gaps while the new parent is on leave. I spoke to other women who have had positive experiences with maternity leave from their firms to learn what has worked well for them. The following are a few best practices that firms can employ to both support new moms and help retain talented lawyers.

1. Have a Written Policy The most basic way law firms can help take the guesswork out of this transition is to have a written policy that sets out exactly what benefits are available—paid and unpaid. Having this policy in place before it is needed takes the pressure off the pregnant lawyer to create a policy from scratch—with the full weight of all other women who may come behind her on her shoulders—or worse, to guess as to what benefits may or may not be available in a time that is already filled with uncertainty.

The Federal and Medical Leave Act provides for up to 12 weeks of unpaid leave, but law firms can do much better than that—and most do. A 2021 survey conducted by Major, Lindsey & Africa (MLA Survey) found that 48% of respondents reported that their firms provide 14 to 20 weeks of paid maternity leave and 11% reported that their firms offer over 20 weeks

of paid maternity leave.1 Some firms also rely on short term disability policies to help offset the costs of providing paid leave.

Amy Farish, another new mom and a newly-elected partner at Yetter Coleman, described her firm’s official parental leave policy (26 weeks, with 14 fully paid) as “very generous,” and explained that the firm was flexible both before the official leave began and as it ended. Amy said she has not felt pressured to work while on leave or to return early—rather, she has been encouraged to take all 26 weeks and offered various options for her return to work.

In addition to setting out the paid and unpaid leave time, the policy should also account for non-birthing parents, foster parents, adoptive parents, and same-sex couples. Inclusivity in this vein takes the pressure off of the birthing parent and acknowledges that in today’s society there is more than one way to start a family.

2. Prorate Billable Requirements Another very practical implication of taking maternity leave is that there will be a transition period both going on leave and coming back from leave. It is not realistic, or in the clients’ interests, to expect an attorney to work full hours until the baby comes, then return to a full schedule the day she returns from leave. Lauren Smith Brody, author of The Fifth Trimester, surveyed over 700 women regarding motherhood and career and found: .

The women I spoke to in tech and law had this in common: When they came back, they were expected to be back at 110% right away. Often, that was almost impossible. Initially, they robbed time from their personal lives and self-care to tend to work. But quickly, that led to resentment and career ambivalence. Phase-in programs offer a more humane and sustainable approach that lets workers adjust emotionally and logistically to the new demands on their time and focus.2 To account for this transition period, some law firms have instituted ramp-up and/or ramp-down policies. For example, at my firm, we recently employed a ramp-up policy in which the billable requirement for the first four weeks after an attorney returns from leave are prorated at 50% of the annual target and then 75% for the next four weeks. This type of policy allows the attorney to make the transition back to work at a reasonable pace. Moreover, prorating billable requirements creates a culture of encouragement and support for attorneys who utilize the benefits offered by the firm.

Brooksie Boutet, who recently welcomed a new daughter, explained that although her firm doesn’t have a formal policy, she was encouraged to gradually transition off of her open matters as some were winding down and others reached natural transition points. As part of her transition process, she also wrote a memo to document the status of her outstanding cases so she could rest assured that key tasks were clearly communicated to

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others handling the matters in her absence.

3. Listen to Your Attorneys Just as every lawyer is different—no two expectant mothers are the same. Some may want to take it slow because the demands of pregnancy are physically exhausting. Others may want to continue working at the same pace but are afraid to announce their pregnancy for fear of being transitioned off of cases prematurely or missing out on opportunities based on a perceived desire to slow down. For example, Amy tried to strategize when to announce her pregnancy because she was on an out-of-state trial team, but those fears were for naught. She explained that the firm “treated me the same, which I really appreciated,” and that she actually learned while on leave that she was elevated to partner.

As attorneys, we are often high-performing individuals, and for many women, they want to continue their career path— along with having a family. Brooksie also received news of her promotion to principal while she was on leave. She said that “achieving such a big professional milestone—while taking time off to welcome a new baby—affirmed our culture of worklife balance and gave me confidence in my ability to manage both my work and family obligations.”

4. Offer Mentorship and In-Office Support If your firm does not already have a Women’s or New Parents’

Committee—consider starting one. Alternatively (or additionally), consider assigning a specific mentor to your new parents.

Providing resources for new parents—both men and women— can be invaluable as attorneys learn to balance the demands of the office with the pressures of parenthood. If nothing else, this provides a resource for people who are parents and can relate to the utter exhaustion of a baby who does not sleep well or someone who is willing to look at the one hundredth picture of the new little one.

Mentorship doesn’t need to wait until the new mother is back from leave. Brooksie, for example, has really liked maintaining her social connections within her firm—stopping by the office with her daughter, attending the firm’s holiday party, and keeping up with her colleagues (not client matters) via Teams. “My colleagues are such a big part of my normal day-to-day that it would have been strange to completely disconnect from them for twelve weeks. Instead,” she said, “connecting from time to time has made this experience feel somewhat more normal and reassured me that I have a support system when I return to work.”

5. Be Flexible If the COVID-19 pandemic taught us anything, it is that we can be flexible and adapt to changing circumstances. In the last few years, as an industry, we learned how to lawyer from home and manage court appearances virtually. This type of

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flexibility is paramount for new parents both before and after the baby arrives. Women in their first trimester are often exhausted and nauseous. Allowing a flexible office schedule is an easy accommodation that lets those women be comfortable in their own environment while still providing great work for clients. The same holds true post-baby. For me, personally, not having to commute every day allows me an extra hour with my kids. That time is invaluable and has made the transition back to work easier.

Brooksie’s firm has always been flexible with attorneys who prioritize taking active roles in their children’s lives—from tee ball games and school plays to high school graduations and college move-in days—and she has found even greater flexibility post-pandemic. Working from home helped her work in some much-needed naps early in pregnancy. And, once her daughter starts childcare downtown, she’s looking forward to having the flexibility to visit her during the lunch hour and—eventually—taking part in school activities.

These best practices are not merely hopeful suggestions from another millennial associate—these are real issues that matter to the attorneys at your firm. The MLA Survey found that: The vast majority of respondents say that their firm’s leave policy makes them more likely to stay at the firm. It has a dramatic impact on lawyers’ experiences of becoming and

being a parent while working. The results were similar regarding the firm’s treatment of parents after return—these things matter significantly for retention. Attrition is expensive, as is replacement cost. Firms should consider weighing the factors here. A more generous leave policy, while potentially expensive and inconvenient, would likely lead to more retention.3 Therefore, instituting some of these best practices for your attorneys will not only help those individuals, but it will also help the firm retain talented attorneys and elevate the industry overall.

Nikki Morris is a litigation associate at BakerHostetler. She is the Off the Record editor for The Houston Lawyer.

Endnotes

1. Parental Leave Survey, MAJOR, LINDSEY & AFRICA, at 7 (2021), https://www.mlaglobal. com/en/insights/research/2021-parental-leave-survey.

2. Lauren Smith Brody, The Fifth Trimester: Rules for Supporting (and Keeping) New Working Moms, PD QUARTERLY, at 19 (Nov. 2018).

3. 2021 Parental Leave Survey, supra note 1, at 17 (emphasis added).

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Normalizing Paternity Leave

By Lane Morrison

hough statistics vary on paternity leave in the United States, some estimates are that more than 75% of fathers return to work less than a week after welcoming a new child. This is despite the fact that an estimated 45% of U.S. companies offer paid paternity leave.1 Why? Many men worry that taking leave will damage their professional reputation or affect their future earning capacity.

And some worry that they will be stigmatized and viewed as less committed employees. But many studies show that paternity leave provides lasting benefits for men, not only for their relationships with their children, but also for their relationships with their spouses. That may be why more fathers are taking paternity leave, and many believe that trend will continue.

We interviewed several HBA fathers who recently welcomed new little ones to show how valuable paternity leave can be and encourage more men to follow in their footsteps.

Kyle Steingreaber, The Ammons Law Firm LLP Kyle recently welcomed twin girls and took two weeks of paternity leave immediately after they were born. He took leave right away because he thought it was very important to be around to help his wife recover from the birth. And since the couple had twins, he understood that they were “automatically playing the parenting game on ‘hard’ mode.”

In general, he felt it was important to take leave because it was a necessary step in taking care of his family during that early time. It gave him more of an “appreciation for how much work goes into keeping a baby (let alone two babies) clean, fed, and happy.” He’ll never forget the bonds he made during his leave period or the sight of his girls smiling for the first time; though others told him the smile was likely gas because babies don’t smile for the sake of happiness until six weeks, he’s not convinced. To dads contemplating taking leave, his advice is that “[t]here’s probably not a onesize-fits-all answer to the question of when you take leave and how much you take, but don’t be afraid to ask for what you need when you need it.” And for new dads generally, “When you can sleep, sleep. Every time.”

Ryan Boutet , Shell USA Inc. Ryan was in the midst of his eight weeks of paternity leave 24

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for the birth of his new daughter, Camille, when this article was written. He started his leave at the same time as his wife and is taking leave for eight consecutive weeks. It was important to Ryan to take leave because it allowed him one of the longest uninterrupted stretches of time that he may ever have together with his wife and daughter that is “largely free from the time commitments and stressors of the outside world.” He said that he wanted to use the available time “to forge (and, with respect to my wife, reinforce) the bonds that underpin the most important relationships in [his] life.” Ryan considers himself incredibly privileged to be able to take several weeks of leave at the same time as his wife because he knows many new dads are not afforded similar perks.

He’s recently “come to find that there are few feelings sweeter than the one you experience during the first moments of silence after a newborn is adequately soothed and smiles after a long cry.” One of his favorite memories thus far has been rocking and singing his new daughter to sleep for her afternoon naps. To those contemplating taking available leave, he has “not regretted taking leave for one second.” His advice is the same advice his supervisor and colleagues gave him: Take the maximum time allowable by your employer. “It’s cliche, but you won’t get the time with your family back, and there will be plenty of cases or deals to handle upon your return.”

Mason Malpass, Reed Smith LLP Mason took 10 weeks that overlapped with his wife’s 18 weeks after the birth of their son, Thomas. Since it was the couple’s first child, they both thought it was important to be together during that early time to support each other and get to know their son in his first few weeks of life.

Mason believes taking leave, if possible, is vital, especially for first-time parents: “Being first-time parents is pretty overwhelming—the moment the doctor said we could take Tommy home on our own was pretty terrifying—but going through everything with my wife was a wonderful experience for us both.” And “at the risk of sounding like a millennial,” Mason

said he wanted to be present with his son and wife, “so having some time away from work to focus on our life together as a family was important” to him. During that time, he learned just how much moms do for their children: “No matter how much I tried, I could never replace her, and I’m so thankful for everything my wife does.” His most memorable time with his new son during his leave was introducing his grandmother in Ottawa, Illinois, to her first great-grandchild. His advice on paternity leave: “Do it. You’ll never have those moments back.”

taking care of your partner, your new baby, and your older children if you have them.”

Cory Sweers, Porter Hedges LLP Cory is an experienced dad of three and took leave for each— four weeks for the first, seven for the second, and four for the third.

His wife is a stayat-home mom, so he felt it was vital to help her with the new baby and, with the later ones, take care of the older kids as she was recovering from childbirth. “Kids are only newborns once, and it’s a very special time. Having a new baby can also be a challenging time for older kids, and it’s important to spend extra time with them, too, during that time.” During his leave periods, he “gained an appreciation of the many things that go into taking care of small children all day, and the challenging (but rewarding) job duties of being the primary caregiver to multiple children.” His most memorable moments while on leave were holding his newborns for naps—indeed, “sleeping newborns are especially cute.” To other men struggling with the decision to take leave, he encourages them to take as much as possible: “Having a new baby (especially when it is your first) is a big challenge. Your partner will certainly appreciate your help as she recovers from childbirth.

The work will be there when you get back, and folks you work with respect you for it. Especially since taking leave really isn’t about you—it’s about

1. SOCIETY FOR HUMAN RESOURCE MANAGEMENT, Paid Leave in American: An Economic Overview, 7 (2020), https://advocacy.shrm.org/wp-content/uploads/2020/09/SHRM_ Paid_Leave_ US_Report_Final.pdf?_ga=2.198504875.525785866.1669077904-570744840.1669077904

Lane Morrison is an associate at Bush Seyferth PLLC.

Endnotes

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Experienced Parents

What Every Parent Needs to Know About the ARD Process

T

By Carl J. Gustafson

he Individuals with Disabilities Education Act (IDEA)1 and Section 504 of the Rehabilitation Act of 19732 establish the core rights of children in special education. While there are key differences, both statutes provide for “free appropriate public education” (FAPE) with essential procedural protections. FAPE is defined as “special education and related services” that are “provided at public expense,” “meet[s] the standards of the State educational agency,” and are “provided in conformity with [a required] individualized education program.”3 Federal law defines special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability,”4 and it likewise specifies the requirements for each individualized education program (IEP).5 As the Supreme Court has noted, the definition of FAPE “tends toward the cryptic rather than the comprehensive,”6 and parents and schools often struggle to agree on whether a particular IEP provides FAPE. Given this struggle, one of the essential procedural protections is how the IEP itself is created.

Schools cannot mandate an IEP; it must be created through a collaborative process. In Texas, an admission, review, and dismissal (ARD) committee creates the IEP. Each ARD committee includes school representatives, the parent, and, when appropriate, the child. While the ARD committee’s agenda may cover many topics, two of the most common issues are what “related services” to provide the child and placement of the child (that is, the amount of time in each school day the child will spend in special education and general education classes).

As for FAPE’s reference to “related services,” federal law defines these as “transportation, and such developmental, corrective, and other supportive services... as may be required to assist

a child with a disability to benefit from special education.”7 Examples include accessible bus services, assistive technology, physical and occupational therapy, and interpreting services.

As these services can significantly benefit a child—but are also potentially very expensive for schools—determining which services are necessary for FAPE is essential.

Children in special education have the right to placement in what is commonly referred to as the least restrictive environment (LRE). LRE means schools must, to the maximum extent appropriate, educate students with disabilities alongside their nondisabled peers. During disciplinary proceedings, children in special education are also entitled to certain procedural protections regarding changes to LRE. Through active participation in the ARD committee, parents have a significant say in the IEP’s final form. Parents usually know more about their children than anyone else and thus can bring important information to those on the ARD committee who are responsible for drafting the IEP in the first instance. During ARD meetings, parents should advocate for the services and placement they feel are necessary for FAPE. Moreover, parents may refuse to sign the IEP if they disagree with its contents.

This last point deserves special note. Parents are not required to sign an IEP at the end of an ARD meeting and should not feel pressured to do so if they feel the IEP does not provide FAPE. Parents who are unsure have the right to take the IEP home for further review. Parents who disagree with an IEP may request subsequent meetings of the ARD committee to discuss their concerns and disagreements. While the goal should always be to resolve conflicts through good faith collaboration during ARD meetings, dispute resolution procedures are available if the

education services. Mr. Gustafson is a litigation associate at Norton Rose Fulbright.

ARD committee reaches an impasse.

Carl J. Gustafson (pictured here with his daughter, Autumn), is the father of an amazing daughter who benefits from special education. He has worked with the INCLUDE Project at The University of Texas School of Law to represent children needing special

Endnotes

1.

2.

3.

4.

5.

6.

7.

20 U.S.C. §§ 1400–1482; see also 34 C.F.R. §§ 300.1–.818.

29 U.S.C. § 794; see also 45 C.F.R. §§ 84.1–.61.

20 U.S.C. § 1401(9).

Id. at § 1401(29).

Id. at § 1414(d)(1)(A).

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 188 (1982).

20 U.S.C. § 1401(26)(A).

Law and Order:

Y

Navigating Student Discipline in Texas Schools

By Stacy Cash

ou ask your 11-year-old about his day at school. He reaches into his backpack and pulls out a sheet of paper.

A glaring header reads “Notice of DAEP Assignment” and states that his school assigned him to 45 days at the district’s disciplinary alternative education placement (DAEP) for “using profanity.” The note instructs you to wait for more information about DAEP enrollment and directs you to the student code of conduct’s discipline policies and procedures.

The smaller print at the foot of the notice further provides that the school may place your child in in-school suspension until the district processes the discipline referral.

The school has never disciplined your child, and this punishment seems particularly harsh, so you may not know what rights you have in this decision. While each school district maintains its own policies and procedures related to discipline, there are some ground rules enshrined in both the U.S. Constitution and the Texas Education Code. To determine district-specific policies, consult the student code of conduct (SCOC) and school board policies.

First, consult the SCOC. Texas Education Code section 37.001 requires that each school district board adopt an SCOC for the district.1 This SCOC must detail which behaviors allow for disciplinary removals and guidelines regarding re-

moval lengths. In your child’s case, the SCOC should describe profanity and the related consequences.

Schools have a range of options for discipline management.

On the lower end of the spectrum, you will find detention, inschool suspension (ISS), and out-of-school suspension (OSS).

OSS cannot last more than three days and, with a few excep-

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tions, is generally not available for youth below third grade or youth who identify as homeless.2 The Texas Education Code does not limit ISS, but a district’s SCOC may provide limits.

You and your child are not entitled to a disciplinary hearing for either ISS or OSS. However, due process for proposed removal to DAEP first requires oral or written notice of the allegations. Your student is then entitled to an explanation of the evidence and an opportunity to present their side of the story.3 Removal occurs at a removal conference, which must be held within three school days of the infraction.4 Additionally, the school must consider certain mitigating factors at the removal conference.5 After considering the factors, the school assesses punishment and must provide written notice of removal to the DAEP within seven days.

The removal may or may not be appealable. If the removal period is less than 60 days or does not extend beyond the next grading period, you cannot appeal unless the SCOC allows it.6 Here, removal of 45 days likely spans beyond the next grading period, and you are likely to have at least one level of appeal. A collateral consequence of a DAEP removal includes mandatory exclusion from school-sponsored and school-related activities.7 For a lengthy removal, the school must provide a review of the student’s status every 120 days.

Expulsions have more robust formal hearing processes and procedures and a guaranteed opportunity to appeal, though your district may provide more layers of appeal. Like the DAEP removal process, schools must also consider mitigating factors when considering expulsion.8 Generally, neither a DAEP removal nor an expulsion can exceed one year or beyond the current school year unless the district makes specific findings.9 Additionally, expulsions and DAEP removals have added safeguards if your child qualifies as a student with a disability.

Removing your child from the district may be tempting to avoid these proceedings. However, this may not escape conse-

quences. Even after withdrawal, the school may complete removal proceedings and enter a removal order, or the next school can conduct the proceedings.10 Any subsequent schools may honor the previous order when your child enrolls.11 If your child attends an alternative educational placement, they are entitled to a transition meeting and a personalized transition plan focused on reentry to the regular classroom within five days of completing the placement.12 If, at any time, you believe the school violated you or your student’s rights, check the school board policy related to grievances and complaints and file a grievance accordingly.

Stacy Cash (pictured here with her son, Liam Washington) is an assistant public defender in the Juvenile Division of the Harris County Public Defender’s Office. Recognizing multiple factors lead to a youth’s involvement in the juvenile justice system, the Juvenile Division offers comprehensive legal representation that includes educational advocacy and school discipline defense to youth facing delinquency proceedings.

If you have any questions about school discipline defense, contact DefendedReferrals@pdo.hctx.net.

Endnotes 1. TEX. EDUC. CODE § 37.001(a).

2. Id. § 37.005(b).

3. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975).

4. TEX. EDUC. CODE § 37.009(a).

5. Id. § 37.001(a)(4).

6. Id. § 37.009(b).

7. Id. § 37.006(g).

8. Id. § 37.009(f).

9. Id. § 37.009(a) and 37.009(h).

10. Id. § 37.009(i).

11. Id. § 37.008(i).

12. Id. § 37.023

Guardianship:

Protecting Your Child Past Minority

P

By Lauren Veillon

arents are the natural guardians of their children.

However, when a child turns 18, parents lose the right to make healthcare and some financial decisions for their child. While for most parents this is simply a part of their child growing up, for parents of disabled children, it can bring about unexpected problems. In these situations, a guardianship may be necessary.

Guardianship law in Texas is governed by the Texas Estates Code. The purpose of a guardianship is to promote and pro28

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tect the well-being of an incapacitated person (or ward).1 Texas provides for guardianships of the “person” and guardianships of the “estate.” For the court to find that a person needs a guardian of his or her “estate,” the person must have assets that require management. For many parents of disabled children, only a guardianship of the person is necessary. Often, after a child’s 18th birthday, such a guardianship is essential to continue the child’s healthcare.

For parents to ensure that they are properly and appropri-

ately protecting their children, it is important to recognize the difference between a guardianship and guardianship alternatives, like a medical power of attorney. A medical power of attorney allows others to act on behalf of an individual but does not terminate the individual’s right to make his or her own decisions. A guardianship, by contrast, terminates a person’s rights to make certain decisions. This can be particularly important in the context of medical decisions, for example, as a disabled child is likely unable to consistently make decisions regarding healthcare.

A guardianship is initiated by the filing of an application in the probate court. When a child approaches the age of 18, and parents know a guardianship for their child will be needed, they can file a guardianship application up to 180 days before the child’s 18th birthday.2 However, a guardianship generally will not take effect until the child’s 18th birthday, absent certain circumstances. For this reason, it is recommended (and many courts require) that the hearing on the guardianship application be set on or after the child’s birthday. In addition to the application, there are many other requirements to obtain a guardianship, including: • Certificate of Medical Examination (CME): A physician must examine the proposed ward and complete the CME no earlier than 120 days before the date the application is filed. This form can be found on the Harris County Probate Clerk’s website.3 • Service of citation: The Texas Estates Code provides a list of persons who are entitled to service of citation for a guardianship application, including the proposed ward, who must be personally served. This process can be upsetting to proposed wards, so it is recommended, if possible, to make arrangements with the clerk’s office or constable to set a time for service on the proposed ward in an environment and at a time that is comfortable for him or her.

• Criminal history check: Guardians must submit to a criminal background check.4 • Attorney ad litem: In each guardianship case, an attorney ad litem will be appointed to represent the proposed wards’ interests.5 The attorney ad litem will meet with the proposed ward before the ad litem appointment hearing and discuss (to the extent possible) the guardianship. Often, when the proposed ward is a disabled child (especially when the proposed ward may not be able to communicate), the attorney ad litem will include the parents of the proposed ward in the initial guardianship meeting.

• Registration of guardianship and training: Each guardianship in Texas must be registered with the Judicial Branch Certification Commission (JBCC) and guardians must complete guardianship training. These steps must be completed at least 10 days prior to the hearing.6

Even after a guardian is appointed, the court remains involved throughout the guardianship. This is sometimes difficult for parents to come to terms with because it may feel like an intrusion into their roles as parents. Guardians of the person must file an annual report that keeps the court informed of the ward’s living situation, daily life, and general well-being. While it can be a time-consuming and sometimes stressful process to obtain a guardianship, it may be the only way for parents of disabled children to properly and fully care for their children as they age.

Lauren Veillon is an associate in the Probate and Fiduciary Litigation Group at Kean Miller LLP and a member of The Houston Lawyer editorial board

Endnotes 1. TEX. EST. CODE § 1001.001(a).

2. Id. § 1103.001.

3. Id. § 1101.103; see generally Harris County Clerk’s Office Probate Courts website, https://www.cclerk.hctx.net/Probate.aspx (last visited December 5, 2022).

4. Id. § 1104.402.

5. Id. § 1054.001.

6. TEX. GOV’T CODE ANN. § 155.203(b).

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You & Your Aging Parents

Aging Parents:

What to Expect and How to Plan

(From the Perspective of an Elder Law Attorney)

A

By Theresa A. Clarke

s the U.S. population ages, more people find themselves caring for a spouse, parent, or other loved one who is elderly or disabled.

The U.S. Census Bureau projects that for the first time, older adults will outnumber children under age 18 by 2034.1 Currently, almost 17% of the U.S. population, or 56 million people, are over the age of 65. By 2035, that number will rise to 77 million. The number of people over the age of 85 is growing even faster and is expected to triple by 2060.

Given this reality, for those not already facing the challenge of caring for a loved one or planning for their care, many of us will encounter this situation at some point. Advanced planning can help ease the anxiety of that transition. At a minimum, crisis “planning” may be avoided. This article focuses on guiding lawyers as their parents age and need care.

When should someone start thinking about intervening or providing extra help to a parent? Age is not the only factor. A diagnosis of a serious illness requiring caregiving can happen at any age. And of course, some people live to old age without requiring much assistance at all. So, what are some of the signs that a parent needs help or that it’s time to get serious about planning?

Determining gaps in caretaking is a first step. Observe parents at home: Are they steady on their feet?

Are they taking medications as prescribed? Do they seem confused or mentally unstable? Is there enough food in the house? Are bills being paid? If they need assistance, begin establishing the support system they will need to continue living at home. For parents who do not live nearby, maintain contact with them by seeking help from neighbors, food providers, and caregivers. Many older adults, including the elderly, have smartphones or other access to technology. A search for “best online caregiving apps” yields many options. For elderly parents who don’t have access to technology, remote caregivers can still arrange for groceries to be delivered to their parents, their house to be cleaned, and their yard to be maintained. Advance directives and powers of attorney can be lifesavers, and if parents do not have these documents, it is strongly suggested they hire an attorney to prepare

them, along with estate planning documents.

The three Ds of geriatrics2 are depression, dementia, and delirium. Misidentifying or failing to differentiate among these conditions can have significant consequences, and the conditions are not mutually exclusive. Depression is a mood disorder “characterized by feelings of loss, sadness, guilt and low self-esteem where the patient exhibits cognitive, physical and mood changes.”3 Depression is not uncommon among the elderly and is frequently undiagnosed because it often presents differently in the elderly than in younger people. Dementia, a general term describing a group of diseases affecting the brain, is characterized by a progressive, persistent loss of cognitive and intellectual functioning. The term includes Alzheimer’s disease, Lewy Body dementia, vascular dementia, and fronto-temporal dementia. Between five and six million adults over age 65 have dementia. This number is expected to reach 14 million by 2060.4 Delirium is often confused with dementia but is distinguishable due to its rapid onset, fluctuating course, and potential for recovery. It is usually caused by an acute medical condition such as pneumonia or a urinary tract infection.

It’s important to understand that dementia is not a disease that eventually affects everyone who reaches old age. Loved ones need to pay attention to changes, ask questions, and listen carefully. Warning signs of dementia include an inability to carry out normal daily activities, hygiene decline, weight loss, poor cognitive skills, and loss of interest in social activities. Signs of depression overlap with those of dementia and can include irritability and agitation. Because of the difficulty for a lay person to discern among the three Ds, it may be necessary to arrange for and/or accompany the person to a physician specifically for a mental health checkup.

One-fifth of the current adult population provides unpaid care to family members or other loved ones, representing an increase of almost 10 million people between 2015 and 2020.5 A significant portion of these people are managing care long distance. These caregivers can spend twice as much as those who live closer to their parents on support for their family members. A caregiver’s role includes everything from

simply checking in to providing ongoing and almost constant help with bathing, toileting, dressing, and more. The more complex and chronic the medical conditions, the more complicated and stressful caregiving can be. Unsurprisingly, providing care within such complicated circumstances can lead to serious health issues for the caregiver, such as anxiety, heart disease, and depression.

Many of these issues can be mitigated through planning. Seniors and their adult children can work together to form a plan and secure arrangements before caregiving is needed. The family must consider financial aspects in the plan, including researching how much it would cost to pay a professional for assistance at home, ranging from basic housekeeping help to skilled nursing care, or to move into an assisted living facility or nursing home. Families should also discuss how responsibilities should be divided. Putting measures in place in advance to plan for nursing home care can ease the transition in the event it becomes necessary.

Aging in place is the desired goal for almost everyone, but staying at home may become impossible. Without advanced planning, children who find themselves having to make hasty decisions about their parents’ living arrangements can end up with substandard care.

With planning and communication, there is time to understand the options and consider the continuum of housing and care. In addition to staying at home and receiving paid or unpaid help or home healthcare, options include, but are not limited to, retirement communities; independent living communities with apartment-style buildings, social activities, and amenities; and assisted living facilities, which allow for private quarters while assisting residents with some activities

of daily living, like help with meals, laundry, and the like.

If a medical condition exists that requires treatment by a medical professional, skilled nursing care may be necessary. If the condition is short-term, the person might require hospitalization, then move to a rehabilitation facility or nursing home, and later return to the previous living arrangement when skilled nursing is no longer needed. For persistent and long-term care requiring skilled medical care, a nursing home often becomes unavoidable, as long-term in-home nursing can be cost-prohibitive.

One of the most persistent myths about long-term nursing home care is that the cost is covered by Medicare. Medicare is the primary health insurance program for Americans over 65. Traditional Medicare does cover up to 100 days in a skilled nursing facility for skilled (not custodial) care. However, to be covered, the stay must be preceded by an inpatient hospital stay of three consecutive days, not including the day of discharge, and the person must enter the nursing facility within 30 days of the discharge from the hospital.6 And even then, Medicare covers the full cost for only the first 20 days. For days 21–100, there is a copay.7 After that, the person is responsible for all costs.

Average nursing home care costs range from $5,000 to $8,000 per month but can be much more expensive. A private room will be more expensive than a semi-private room. The national median cost of a semi-private room in a nursing home is $7,908.8 If Medicare only covers the cost for a short period of time, how does one pay for long-term care in a nursing home? There are three ways to finance long-term care (LTC).

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First, some seniors are able to pay the private pay rate out of pocket. This option may be viable if the person has built up a solid retirement nest egg. If one spouse needs nursing home care and the other will remain at home, the retirement funds will not last as long. Most individuals cannot afford the cost of a nursing home over several years, which may be needed if the person has Alzheimer’s or other dementia. It is not uncommon for Texas nursing home residents to exhaust their resources and reach the poverty level after six months.

Be aware: it is against federal law for a nursing home to require a resident’s family member or friend to become financially liable for the nursing home bill if the resident runs out of funds.9 The same law is codified in a bill of rights for nursing home residents.10 Second, individuals can purchase LTC insurance well in advance. The older the person, the higher the cost. And at some point, and after certain diagnoses, it is usually not possible to obtain a policy. Policies vary widely, and the level of coverage depends on the type of plan purchased. LTC policies are governed by the Texas Insurance Code.11 Third, individuals can apply for public benefits such as Medicaid. Medicaid is a publicly funded medical assistance program that pays LTC costs for people who meet the eligibility criteria. It is funded 60% by the federal government and 40% by the states.

When Medicaid was enacted in 1965 along with Medicare, and as part of changes to the Social Security Act, it was associated with welfare and was, in fact, restricted to people with low incomes and limited resources. Throughout the decades, Medicaid has changed to cover more people in need of healthcare services, including longterm care services such as nursing home care. Given that most older adults cannot privately pay for nursing home care for an extended time and do not have LTC insurance, Medicaid is the default long-term care program in the U.S. and is a middle-class program.

There are dozens of Medicaid programs in Texas, including nursing home Medicaid, which is a focus of this article.12 In Texas, it is administered by the Texas Health and Human Services Commission.13 To qualify for long-term care Medicaid in Texas, the applicant must: 1. Be a U.S. citizen or a qualified alien; 2. Be a Texas resident; 3. Be 65 years of age or older, blind, or disabled; 4. Meet the “medical necessity” requirement; 5. Reside in a Medicaid certified facility and bed; 6. Receive less than the income cap established by the State; and 7. Remain under the asset limit of $2,000 of countable resources.14 The financial requirements need some unpacking. Texas is one of 12 states that puts a cap on income. In 2023, the income cap in Texas is $2,742, which means that for an individual to be eligible for long-term care Medicaid, his or her gross monthly income must fall below that amount (adjusted annually).15 If both spouses apply, the income cap doubles. However, under federal law, a person whose income is over the cap can become income-eligible by directing income into a qualified income trust (QIT).16 Income that is directed to the QIT during the same calendar month in which it is received is not tested against the cap, effectively reducing “countable” income to an amount that is under the cap. Regardless of whether a QIT is 32

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needed, once certified for Medicaid, a single person will have a copayment to the nursing home, with Medicaid covering the balance.

A married person whose spouse stays in the community (not in a skilled nursing facility) may have a copayment, depending on the couple’s combined income and allowable deductions.

The $2,000 asset limit is a minefield both for laypeople and attorneys who don’t practice elder law. First, certain assets do not count against the $2,000 limit. For example, a single person can own a house with an equity value of $688,000 (in 2023). For a married person, there is no limit to the value of the homestead. Other noncountable assets include a vehicle, certain retirement accounts and life insurance policies, and a ranch or other business asset under certain conditions. Second, major changes in the 1980s relaxed the requirements for married people so that the spouse who does not need nursing care does not become impoverished due to paying all the couple’s income to a nursing home.17 Hundreds of specific and complicated rules relate to these examples. What works in one situation does not work for another.

For attorneys whose parents or loved ones are aging, an elder law attorney can help address estate and benefits planning, as well as numerous other legal issues and assistance. Beginning about 40 years ago, the need for highly specialized attorneys in elder law resulted in the formation of organizations like the National Academy of Elder Law Attorneys and the National Elder Law Foundation (NELF), as well as local groups such as the Houston-based Disability and Elder Law Attorneys Association. NELF is the only national organization accredited by the American Bar Association to certify practitioners of elder and special needs law. NELF’s Certified Elder Law Attorney designation represents a lawyer’s expertise in the practice of elder law.

Theresa A. Clarke is a senior associate attorney at Wright Abshire, Attorneys, PC, an elder law firm in Bellaire, Texas. She is listed in The Best Lawyers—Ones to Watch in America, Elder Law & Trusts and Estates, 2023.

Endnotes 1. Jonathan Vespa, The Graying of America: More Older Adults Than Kids by 2035, U.S. CENSUS BUREAU (Oct. 9, 2021), https://www.census.gov/library/stories/2018/03/grayingamerica.html#:~:text=By%202060%2C%20nearly%20one%20in,caregiving%20and%20 assisted%20living%20facilities.

2. Geriatrics is “a branch of medicine that deals with the problems and diseases of old age and the medical care and treatment of aging people.” Geriatrics, MERRIAM-WEBSTER.COM, https:// www.merriam-webster.com/dictionary/geriatrics (last visited Nov. 13, 2022).

3. Scott J. Saccomano, Geriatric Nursing & the Three Ds, ELITE LEARNING (July 29, 2013), https: //www.elitelearning.com/resource-center/nursing/nursing-resources/tips-nursing/geriatricnursing-the-three-ds/.

4. About Dementia, CENTERS FOR DISEASE CONTROL AND PREVENTION (Apr. 5, 2019), https://www.cdc.gov/aging/dementia/index.html#print.

5. NATIONAL ALLIANCE FOR CAREGIVING AND AARP, CAREGIVING IN THE U.S., 4, 7, 2020, https://www.caregiving.org/wp-content/uploads/2021/01/full-report-caregiving-in-the-unitedstates-01-21.pdf.

6. 42 U.S.C. § 1395d(a)(2); 42 C.F.R. § 409.61.

7. The copayment amount is $194.50 per day in 2022, increasing to $200.00 in 2023. See Skilled Nursing Facility (SNF) Care, MEDICARE.GOV, https://www.medicare.gov/coverage/skillednursing-facility-snf-care (last visited Nov. 13, 2022).

8. GENWORTH FINANCIAL, GENWORTH COST OF CARE SURVEY SUMMARY AND METHODOLOGY, 3, 2022, https://pro.genworth.com/riiproweb/productinfo/pdf/131168.pdf; GENWORTH FINANCIAL, GENWORTH COST OF CARE SURVEY DATA TABLES, 2022, https://

pro.genworth.com/riiproweb/productinfo/pdf/282102.pdf.

9. 42 U.S.C. § 1395i-3 (for Medicare-certified facilities) and 42 U.S.C. § 1396r (for Medicaid-certified facilities).

10. 42 U.S.C. § 1396r(c); 42 C.F.R. § 483.10.

11. Tex. Ins. Code § 1651.001, et seq.; see also Long-Term Care Resource Page, TEX. DEPARTMENT OF INSURANCE (Apr. 13, 2022), https://www.tdi.texas.gov/consumer/hicap/hicapltc05.html.

12. Medicaid for the elderly or disabled who need skilled nursing care is also available at the person’s home under a program called the STAR+PLUS Homes and Community Based Services program (often called the STAR+PLUS Waiver), provided through a managed care system. Typically, the program provides about 20–30 hours of assistance per week, and there are regionally-based waiting lists. The eligibility requirements are the same as nursing home Medicaid. See 1 Tex. Admin.

Code § 353.603.

13. Medicaid for the Elderly & People with Disabilities Handbook, TEX. HEALTH & HUMAN SERVICES, https://www.hhs.texas.gov/services/health/medicaid-chip/medicaid-chip-programs-services/ programs-children-adults-disabilities/medicaid-elderly-people-disabilities (last visited Nov. 13, 2022).

14. See Molly Dear Abshire, Clyde F. Farrell, Patricia F. Sitchler, & Wesley E. Wright, 51 Tex. Prac., Elder Law §§ 8:43-8:111, Thomson Reuters, (2022 ed.). Medicaid eligibility requirements are found in federal law (Social Security Act, 42 U.S.C. § 1381 et seq; 42 U.S.C. § 1396 et seq), regulations, and policy and state regulations (Texas Government and Administrative Codes).

When assessing Medicaid eligibility, HHSC staff rely primarily on the Medicaid for the Elderly and People with Disabilities (MEPD) Handbook. Medicaid for the Elderly and People with Disabilities Handbook, TEX. HEALTH & HUMAN SERVICES, https://www.hhs.texas.gov/handbooks/ medicaid-elderly-people-disabilities-handbook (last visited Nov. 13, 2022).

15. MEPD and TW Bulletin 22-21, TEX. HEALTH & HUMAN SERVICES, https://www.hhs.texas. gov/sites/default/files/documents/MEPD%20and%20TWH%20Bulletin%20-%2022-21.pdf, (Dec. 2, 2022). For the 2022 income caps, see Medicaid for the Elderly & People with Disabilities Handbook, TEX. HEALTH & HUMAN SERVICES, Appendix XXXI, Budget Reference Chart, https:// www.hhs.texas.gov/handbooks/medicaid-elderly-people-disabilities-handbook/appendix-xxxibudget-reference-chart (last visited Nov. 21, 2022).

16. 42 U.S.C. § 1396p.

17. Medicare Catastrophic Coverage Act of 1988, H.R. 2470, 100th Cong. (1987–1988).

Your Aging Parents:

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Protecting Them From Fraud

By Joseph Frank

ife is busy. From raising children to a demanding career and everything else in between, if you’re like me, you struggle just to keep your own life in order. All the while, your parents are aging. And as they age, they become increasingly vulnerable. To protect your aging parents from fraud, it is essential to communicate with them now and undertake important preventative measures.

For starters, every older adult needs (1) a will, (2) a financial power of attorney, (3) a medical power of attorney, and (4) an advanced directive, which specifies how one wants medical decisions about oneself to be made in the event of incapacity. Once your parents become incapacitated, it’ll be too late. They won’t be able to sign these documents. So talk to your parents now and make sure they have these documents in place while they are still mentally competent.

Of equal importance, ensure that your parents keep these documents where they can be found. The power of attorney documents should be shared with the person designated with the power of attorney. Financial power of attorney documents should also be put on file with the relevant financial institutions, and medical power of attorney and advance directive documents should be shared with each parent’s primary care physician. Being prepared will make things easier down the road and could prove instrumental in mitigating a scam or preventing one altogether.

Technological advancements bring opportunities for fraud. For every scheme you warn your parents about, two more are certain to pop up. At a minimum, teach your parents to use two-factor authentication. Also, encourage your parents to use a credit card instead of a debit card or checks, as many credit cards have builtin fraud protections and—unlike debit cards and checks—are not directly linked to an underlying bank account.

Regarding their smartphones, some basic rules will help. First, don’t answer calls from unknown numbers. Legitimate callers

(such as a doctor or a bank) will leave a voicemail or send a text message. Second, don’t click on links embedded in text messages or emails unless the source is known and trusted. Third, if a voicemail or text message seems at all fishy, contact the sender to verify.

And when contacting the sender, look up the sender’s contact information independently of the text or email, e.g., on the sender’s official website. This is especially true for any message about an account being compromised. Fourth—and this cannot be emphasized enough—never click on an embedded link! If an email or text message says an account is compromised, go to the website like one normally would and only then change the password.

The variations of fraud are unlimited, and you cannot prepare your parents for them all. However, a little common sense can go a long way. If it sounds too good to be true, it is. You didn’t win Publisher’s Clearing House Sweepstakes, and you aren’t the heir to the fortune of an estranged relative you never heard of. Similarly, if it sounds shockingly horrible, it’s also not true. Your relative is not in jail in Mexico, and the IRS is not about to arrest you or a loved one unless you pay the “agent” on the phone. Con artists prey on emotions like fear, greed, trust, and loneliness. Tell your parents that if they are presented with anything that sounds too good or bad to be true, they should take a step back, think it through, and—most importantly—call you or another trusted family member before taking any action.

In short, a little preparation and some common sense guidance can help protect your aging parents from fraud.

Joseph Frank is an assistant district attorney assigned to the Elder Abuse Section of the Harris County District Attorney’s Office.

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For All Parents

So You Want to Take FMLA Leave:

Here’s What You Need to Know

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By Haley Kurisky

ven if you are not an employment lawyer, you have probably heard of the FMLA in some capacity. Sometimes it seems as if “FMLA leave” are dirty words meant to spark fear within employers and uneasiness among employees. However, this connotation could not be more incorrect. As lawyers, the FMLA is our friend in an industry that traditionally frowns upon “taking a break.” Times are changing—see if the FMLA is right for you!

FMLA Who? The Family Medical Leave Act (FMLA), which applies to private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year, allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period. The weeks do not have to be consecutive, but employees can only take FMLA leave for certain issues, such as: • An employee’s own serious health condition; • The birth of, or bonding with, a child (expires 12 months after the child’s birth); • Adoption or foster care placement of a child (must be taken within one year of placement); • A spouse, child, or parent’s (but not parent-in-law’s) serious health condition; • “Qualifying exigencies” arising from active military duty of a family member; or • Caring for a family member who is an injured military service member.1 A “serious health condition” is an illness, injury, impairment, or physical or mental condition involving in-patient care or continuing treatment by a healthcare provider, including high stress, anxiety, depression, substance abuse, and eating disorders—common conditions in the legal field.

To be eligible for leave based on a serious health condition, an employee must be unable to perform the functions of the job.

When Should You Consider Taking FMLA Leave?

FMLA leave accounts for a number of surprises, both good and bad, that can interrupt the typical work schedule.2 Below are a few examples of times when you might consider taking FMLA leave: • If you have had surgery and need time to recover, you can take FMLA leave.

• If you are pregnant, you can use FMLA leave for any absence due to pregnancy, like morning sickness or prenatal visits.

• If you are a new parent, you can use FMLA leave to bond with your new child or care for the spouse who gave birth.

• If you are adopting a child, you can use FMLA leave to appear in court, travel to another country to finish an adoption, or bond with your adopted child.

• If your child, spouse, or parent is ill, you can use FMLA leave to care for that family member.

What Are The Benefits of Taking FMLA Leave?

The FMLA is a great tool that, when used correctly, allows employees to focus on the health of themselves and their close family members without worrying about work responsibilities. That is in part because employees who take FMLA leave have job protection associated with the absence. Upon return from FMLA leave, employees are guaranteed restoration to the same or an “equivalent” job. Following FMLA leave, an employer who places an employee into a role with lesser benefits or pay violates the FMLA and can be liable for FMLA retaliation. Additionally, during FMLA leave, employees’ medical benefits continue. Employers often allow employees to substitute paid vacation time to cover parts of FMLA unpaid leave, too. Employers that meddle with an employee’s benefits or paid time off during the employee’s FMLA leave risk being sued for FMLA interference.

What Does This Mean for Lawyers?

The legal industry has long been a practice that rewards those who never take breaks or who place work above their personal lives. But in the age of the Great Resignation, employers are tasked with not only honoring, but supporting, the right of employees to take time off. If you find yourself in a situation where your health or a family member’s health begins to affect your work, look to the FMLA for a possible remedy.

Haley Kurisky is an associate attorney in the Houston office of Jackson Lewis P.C., a full-service labor and employment firm. Haley is a native Houstonian and attended Rice University for her undergraduate and University of Houston Law Center for her Juris Doctorate.

Her interest in employment law began when she saw several employment lawsuits litigated as an intern for the Honorable Lynn N. Hughes.

Endnotes 1. U.S. Dep’t of Lab., Wage & Hour Div., The Employer’s Guide to The Family and Medical Leave Act, FMLA Employer Guide, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf.

2. U.S. Dep’t of Lab., Wage & Hour Div., Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act, (July 2015), https://www.dol.gov/agencies/whd/fact-sheets/28ffmla-qualifying-reasons.

Young Lawyer Spotlight

Quentin L. Smith Where do you work and what is your practice area?

Quentin: I am a partner at Vinson & Elkins where I practice complex commercial litigation. I help our clients resolve their disputes.

Where did you go to school?

Quentin: I attended Morehouse College and the University of Michigan School of Law. What prompted you to join the Houston Bar Association?

Quentin: I joined the HBA to become more involved in the broader legal community. A number of other lawyers at the firm served on various committees when I was a younger lawyer and recommended that it would be a great way to meet lawyers outside the firm and give back to the community.

What have you enjoyed most from your HBA membership?

Quentin: I’ve mostly enjoyed the fellowship of meeting new lawyers who have an interest in serving the broader legal community.

For a number of years, I had the privilege of serving on - and even Quentin L. Smith chairing – the HBA Communities in Schools Committee, which was an excellent way to help mentor students who were interested in pursuing a legal education. In addition, I always enjoy fellowshipping with lawyers at the annual Harvest Celebration over fajitas.

Tell us about your service on the Houston Bar Foundation (HBF) board of directors. How has it enriched your practice?

Quentin: It has been a privilege to serve on HBF’s board. I routinely get to hear about the great work of Houston Volunteer Lawyers assisting those with legal needs in the community and about other organizations who need money to make a broader impact. Service on the board has enriched my practice by giving me the opportunity to meet with other lawyers who are passionate about giving something back to the Houston community and to recruit others who share similar values.

What keeps you grounded outside of your practice?

Quentin: Family, friends, faith, and fun. It would not be a life worth living if I didn’t have my family, friends, or faith.

Those are important aspects of my life. In conjunction with those aspects, I like to have fun, whether it’s attending a live performance, rooting for the Michigan Wolverines, or sharing a great meal with friends and family. It’s important to have fun.

The Houston Lawyer

What’s the latest book or podcast you’ve enjoyed?

Quentin: I am a huge fantasy book fan, so I am constantly reading and rereading books. I recently reread Dawnshard by Brandon Sanderson, which is a novella from his fantastic series: The Stormlight Archive.

What advice do you have for young attorneys?

Quentin: Ask for advice and help. I tell many young lawyers that I meet that the practice of law is essentially an apprenticeship. You can learn a great deal from more experienced lawyers. What is more, many lawyers are more than happy to mentor young lawyers. Regardless, of who you are, or what firm you are at, the HBA provides an opportunity to meet some of the best lawyers in Houston, Texas. And those lawyers would be happy to chat or provide advice to a young lawyer. thehoustonlawyer.com

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Houston Legal Community Comes Together To Support Pro Bono on an Unforgettable Evening at the 73rd Annual Harvest Celebration Thank you to the generosity of the Houston legal community for your support of the 73rd Annual Harvest Celebration. 100% of net proceeds benefit Houston Volunteer Lawyers.

Below are a few photos from the event, held on November 14 at the River Oaks Country Club.

Visit hba.org to see more photos.

Photos by Deborah Wallace, Barfield Photography

(L to R) This year’s Harvest Celebration co-chairs HBA Treasurer David E. Harrell Jr., HBA President Christopher V. Popov, and HBF Chair Christian A. Garza.

HBA President Christopher V. Popov with his wife, Annsely.

Harvest Celebration co-chairs join five Texas Supreme Court justices who spoke during a special reception. (L to R) Justice Evan A. Young, Justice Jimmy Blacklock, Justice Rebeca Aizpuru Huddle, Justice Jane Bland, and Justice Brett Busby.

Guests enjoying the 2022 Harvest Celebration 36

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Former HBF Chair Travis Torrence (center) with Harvest Celebration guests.

HBF Chair-Elect Monica Karuturi with Parul Anderson and Melissa Patangia.

HBAA Past President Dominque Varner and Chanler Langham.

2022-2024 HBA Director Kaylan Dunn (center) with Harvest Celebration guests Ashley Kahn (left) and Adrianna Culbreth.

HBF Director Sejal Brahmbhatt (center) with guests Sean McCarthy and Michael Samaniego.

Harry Reasoner (second to right) joined by Harvest Celebration guests.

(L to R) 2021-2023 HBA Director Jeff Oldham, Rachael Thompson, and Judge Yvonne Ho.

HBA Past President (2019-2020) Benny Agosto, Jr. (left) and former HBF Chair John Eddie Williams Jr.

(L to R) 2021-2023 HBA Director Collin Cox with wife Jacquelyn Cox and 2021-2023 HBA Director and 20222023 HLRS Chair Colin Pogge.

(L to R) 2022-2024 HBA Director Samantha Torres, Lisa Luz Parker, Barbara DePena, and Lori Yount.

Judge Cheryl Elliott Thornton and her husband, Peter Thornton.

(L to R) HBA President Christopher V. Popov, HVL Executive Director Anne Chandler, and HBA Treasurer David E. Harrell, Jr.

HBF Board Member Quentin L. Smith with his wife, Aerin Smith.

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Thank you to the underwriters of the 73rd Annual Harvest Celebration Benefiting Houston Volunteer Lawyers Thank you, Houston legal community, for your generous support of pro bono legal services provided by Houston Volunteer Lawyers.

Diamond Sponsors

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

Ruby Sponsors

Benny Agosto, Jr. and Nikki Agosto AZA Law Blank Rome LLP Chevron Corporation Litigation Section

Sapphire Sponsors BakerHostetler LLP Hon. Harvey Brown CenterPoint Energy, Inc. Chamberlain Hrdlicka LyondellBasell Industries Phillips 66 Company Winston & Strawn LLP

Gold Sponsors

Arnold & Porter LLP Beck Redden LLP Clouthier Law, PLLC Greenberg Traurig, LLP Haynes and Boone, LLP Hewlett Packard Enterprise Hicks Thomas LLP King & Spalding LLP Labor & Employment Section Latham & Watkins LLP

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Alternative Dispute Resolution Section Jane and Doug Bland ConocoPhillips Energy Law Section Family Law Section Foley & Lardner LLP

Gibbs and Bruns LLP Gibson, Dunn & Crutcher LLP Tom and Debbie Godbold Halliburton David and Tammie Harrell JAMS Johnson Deluca Kurisky & Gould, P.C. Monica Karuturi and Kumaran Sathyamoorthy Kirkland & Ellis LLP Liskow McGuireWoods LLP Michelman & Robinson, LLP Morgan, Lewis & Bockius LLP Pillsbury Winthrop Shaw Pittman LLP Chris and Annsley Popov Real Estate Section Sidley Austin Foundation Spencer Fane LLP Quinn Emanuel Urquhart & Sullivan; Karl Stern Weil , Gotshal & Manges LLP Willkie Farr & Gallagher LLP Yetter Coleman LLP

Bronze Sponsors

Akerman LLP Amegy Bank Balch & Bingham LLP Baker Wotring LLP Bissinger, Oshman, Williams & Strasburger LLP Bradley Arant Boult Cummings LLP Burford Perry, LLP Bush Seyferth PLLC CITGO Petroleum Cokinos Young PC Coné PLLC Jacquelyn and Collin Cox Crowe LLP Mindy and Joshua Davidson Dentons US LLP Diggs & Sadler Digital Insurance, LLC dba One Digital Dobrowski Stafford LLP Emma Doineau Duane Morris LLP Energy Transfer Enterprise Products

Eversheds Sutherland US LLP Fayez Sarofim Federal Practice Section Fogler Brar O’Neil and Gray LLP Frost Bank Frost Brown Todd LLC FTI Consulting Kerry Galvin Christian A. and Janet G. Garza Family Germer PLLC Hon. Michael Gomez and Diana Gomez Gray Reed Hagans Montgomery Hagans Jim and Susan Hart Hartline Barger LLP Hogan Lovells US LLP Houston Lawyer Referral Service, Inc. Jim and Cisselon Nichols Hurd Husch Blackwell LLP Jackson Walker Jim Adler & Associates Jenkins and Kamin, LLP Jones Day Kane Russell Coleman Logan PC Kean Miller McDowell Hetherington LLP Hon. David M. and Pamela Medina Mergers & Acquisitions Section Greg and Jennifer Moore Munsch Hardt Kopf & Harr, P.C. Okin Adams Bartlett Curry LLP Jeff Paine and Brandon Holcomb Goldman Sachs Plains All American Pipeline, L.P. Porter Hedges LLP Reed Smith LLP Reynolds Frizzell LLP Service Corporation International Shearman & Sterling Skadden, Arps, Slate, Meagher & Flom LLP Smyser, Kaplan & Veselka, L.L.P. South Texas College of Law Houston Susman Godfrey L.L.P. Validity Finance, LLC Laura and Tony Visage Vorys, Sater, Seymour and Pease LLP Westlake Chemical Corp.

Wright Close & Barger, LLP

Crystal Sponsors

Barry and Sue Abrams Hon. Terry Adams Adams and Reese LLP Sofia Adrogué/Diamond McCarthy LLP Andrews Myers, PC Appellate Practice Section B. Riley Advisory Services Jack and Mary Balagia Bankruptcy Section Sharon Marie Beausoleil Brent and Christy Benoit Berg & Androphy Susan L. Bickley BoyarMiller Bragg Law PC Sejal Brahmbhatt Keri Brown and Ben Womack Hon. Brett and Erin Busby BWA Video, Inc. Anne Chandler Christian Levine Law Group LLC Commercial & Consumer Law Section Construction Law Section Copeland & Rice LLP Corporate Counsel Section Cozen O’Connor Criminal Law Section Brittny Mandarino Curry Eric and Kami D’Olive David Toy Law Firm Wendy and Alistair Dawson Amy Catherine Dinn DLA Piper LLP (US) Kaylan and John Dunn Polly and Stephen Fohn Fullenweider Wilhite, P.C. Jackie and John Furlow Lynn and Stewart W. Gagnon Roland Garcia Craig and Penny Glidden Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, LLC Hon. Angela Graves-Harrington Gregor Wynne Arney, PLLC Hon. Joseph “Tad” Halbach Kelly E. Hanen Lauren and Warren Harris Greg and Jennifer Hasley Hon. Kristen Brauchle Hawkins HBAA Charitable Fund, Inc. Lindsey and Greg Heath Hedrick Kring Bailey PLLC Linda and Tracy Hester Hicks Davis Wynn, P.C. Hirsch & Westheimer, P.C. Hogan Thompson LLP Hillary Holmes and Matthew Archer Houston Young Lawyers Association In honor of Kent W. “Rocky” Robinson Infinity Reporting Group, LLC Jackson Lewis P.C. Jordan Lynch & Cancienne Juvenile Law Section

Chris Gadoury and Julie Blair K & L Gates LLP Shae Keefe and Mark Jacobs Keith Law, PLLC Neil and Dana Kelly Kilpatrick Townsend & Stockton LLP Daniella D. Landers Chanler Langham Law Office of Janet Hansen Law Office of Seth Kretzer James Leader Elizabeth and Russell Lewis Life Savers Emergency Room Eric and Rhonda Lipper Peter Lowy and Gabriela Boersner Gina Lucero and Terry G. Fry Hon. Erin Lunceford and Mike Lunceford Massey Law Firm PLLC Mayday Law Office PLLC Tim and Ginnie McConn Cassandra McGarvey MehaffyWeber PC Hon. Margaret Mirabal Audrey Momanaee Hon. Daryl L. Moore W. Michael and Laurie D. Moreland Hon. Brittanye Morris Nathan Sommers Jacobs Jeff and Melissa Oldham Olson & Olson, LLP Robert and Taunya Painter Charlie Parker Connie H. Pfeiffer Colin and Sangita Pogge Kelly and Mike Prather Rapp & Krock PC Aaron M. Reimer and Amanda Heidemann Reimer Rose Sanders Law Firm Karen and Scott Rozzell Rusty Hardin & Associates, LLP Hon. Frank Rynd Travis and Sandy Sales Shook Hardy & Bacon L.L.P. Kay Sim Hon. Jerry Simoneaux Tramaine Singleton Quentin L. Smith Hon. Susan S. Soussan Sponsel Miller Greenberg PLLC Stacy & Baker, PC Steven C. Howard P.C. Taxation Section Taylor, Book, Allen & Morris, LLP The Buck Family Fund The Lanier Law Firm The Law Office of Daniel D. Horowitz, III, PC The Springer Law Firm PLLC Jennifer Tomsen TONER Home Matters Travis Torrence and Heath LaPray Samantha Torres and Jimmy Hollowell Hilary Tyson

Sandy and Greg Ulmer UnitedHealthcare Roy and Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis Richard and Laura Whiteley Hon. LaShawn A. Williams Winstead PC Travis and Dr. Lisa Wofford Womble Bond Dickinson (US) LLP Willie and Ingrid Wood Andrew Yeh Ytterberg Deery Knull LLP Zabel Freeman Law Firm

Other Sponsors

Animal Law Section Antitrust & Trade Regulation Section Robert Berleth Hon. Julie Countiss Hazel Donato Jennifer Walker Elrod Entertainment & Sports Law Section Environmental Law Section Chris Di Ferrante Edward Festeryga Mr. and Mrs. Dereck Frederick Hon. Tanya Garrison David T. Harvin HBA Staff Health Law Section Hon. Yvonne Y. Ho Hon. James Horwitz Samantha Jarvis Rodney Johnson In Honor of Kennedy Kent Loftin In Honor of Kenneth Tekell and Jack Balagia International Law Section Camille C. Jenman Law Practice Management Section Marcum P.C. Hon. Beau A. Miller Hon. Margaret Poissant Probate, Trusts & Estate Section Hon. Veronica Rivas-Molloy and David Molloy Robin Raasch Susan & Barrett Reasoner Jane Langdell Robinson Anna Robshaw, Greenberg Traurig LLP S. Mayer Law Hon. Robert Schaffer Social Security Section Hon. Charles Spain and John Adcock Cooper Sukaly Hon. Cheryl Elliott Thornton Brooks Tobin and Jacquelyn Rex Hon. Fran Watson Hon. Ken Wise Krisina Zuñiga and Rick Houghton

In Kind Sponsors

Innovative Legal Solutions

OFF THE RECORD

Jason Newman:

Shaped by Swine Showmanship

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The Houston Lawyer

By Lane Morrison

ason Newman isn’t afraid of getting his hands dirty—figuratively and literally. Though he spends his days litigating high-stakes energy disputes at Texas’ oldest and largest law firm, Baker Botts, he and his family spend their free time furthering another Texas tradition, raising and showing livestock— pigs, to be exact. Though the Abilene native never grew up showing pigs, his wife Jamie, a former FFA officer who grew up showing pigs in Colorado City with her Ag teacher father, knew how rewarding it can be. That’s why the Newmans encouraged their son, Rhett, to try it out during his sophomore year at Friendswood High School. Rhett obliged, not knowing how much it would change his life. And so began Jason’s second job as an FFA dad.

Rhett’s eventual success solidified the Newmans’ dedication to the craft. After mixed results during his first two years Johnny and Rhett. in FFA, Rhett found Johnny, a truly extraordinary pig. Johnny had humble beginnings as an evacuee from a flooded barn in Louisiana, but Rhett’s months-long commitment to training him produced a shining star. Though this audience might not know, one does not simply feed a pig slop and hope to make something of it. Because judges evaluate a pig’s size, structure, appearance, and performance, a handler must feed it at least twice a day, bathe it often, groom it daily so that its skin and hair are shiny, and practice walking it as much as possible—among other duties. Because of the extensive work involved, raising Johnny was a family affair.

Jason, Jamie, and their other sons, Wyatt and Landon, spent many hands-on afternoons, nights, and weekends in the barn with Johnny. And it showed in more ways than one. When Rhett and Johnny hit the fair circuit, Johnny was around 300 pounds.

The duo took home ribbon after ribbon in fairs and shows across Texas. Then, at the big one—the 2021 State Fair of Texas—Johnny won best Yorkshire in his class. After a great showing in the Grand Drive—picture the National Dog Show, but with an animal three times the size—from the nearly 1,000 pigs that started the competition, Johnny and Rhett won Reserve Grand Champion, a massive feat.

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Rhett received a scholarship and a substantial sum at the auction for Johnny—enough to pay for his first year at Blinn CollegeBrenham. But the intangibles that Rhett learned from the experience were worth far more. Jason and Jamie are still in awe at the confidence, maturity, and responsibility the experience gave Rhett—transforming him from a shy boy. Rhett aptly summed up the experience with a poignant tribute to Johnny: “All this time I thought I was walking you and you were walking me the whole time. That’ll do pig, that’ll do.”

The Newmans’ commitment has continued even since Rhett moved off to college. Jason continues his hands-on work with his sons’ other pigs— seven in all. And Jamie loves seeing Jason enjoying things she’s been passionate about since childhood. In all, showing swine— and working together in the process—has created even stronger bonds in the Newman family. It allows them to be together even more than other extracurriculars do.

The Newmans hope that their experience will encourage other kids and families to dive into the world of agriculture and bring light to some newer resources that can help anyone’s hog hopes get unstuck from the proverbial mud. One group that the Newmans have utilized with some of their pigs is the Cole Gordon Helping Hand Foundation (colegordonfoundation.com). A young Friendswood native and prevalent volunteer, Cole was tragically killed in a car accident while hauling his pigs home from a show in September 2019. The foundation has carried on Cole’s legacy of volunteerism by promoting agriculture and livestock education to Houston’s youth.

As part of that, the foundation supports a 35-stall barn in Alvin where youth of any age and from any location can access the space and resources to become involved with livestock showing.

As for the Jason, he is immensely proud of Rhett and relishes all the quality family time had while feeding, training, and grooming the family pigs over these years. After a long day in the office, he finds it quite cathartic to do manual labor and enjoyably humbling to clean up behind farm animals. And he especially enjoys how the pigs plop down to receive belly rubs. To help his other sons achieve their FFA dreams, Jason spends his days in the office and nights in the barn. He wouldn’t have it any other way.

Lane Morrison is an associate at Bush Seyferth PLLC.

A Profile

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

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Natalie DeLuca

Managing Counsel, The Harris County Attorney’s Office

hen it comes to professional reputation, Texas isn’t so big. Despite practicing in a major city, in a big state, we lawyers tend to engage regularly with a limited professional community. Reputation is our professional currency, the value of which is determined by our conduct. Over the course of a career, we might be lucky enough to be awarded a triple-A rating like the most reliable of institutions.

As an in-house public sector attorney, every person I encounter as a lawyer has had a personal experience with local government. Just paid your property taxes? Concerned about this week’s garbage collection? Those touchpoints sometimes translate into negative perceptions of government and, by extension, government lawyers. Typical hallmarks of reputation aren’t available for public sector lawyers. You won’t find us identified as ‘super’ on any list and our offices don’t garner stars or ratings. Instead, our caliber is measured primarily by the quality of our work and professional interactions. As a government lawyer, I work hard to be credible and trustworthy, as do so many other excellent public sector lawyers.

Recently, I was honored to present a CLE to my colleagues on the plaintiffs’ side of the local employment bar. Notwithstanding our respective roles, I was welcomed. Truly, my own conduct has been most influenced by opposing counsel. I strive to model those who, despite our adversarial positions, act with courtesy and respect and who display reasonableness over aggression. Not coincidentally, the Texas Board of Legal Specialization seeks references, not just from amiable coworkers, but also from opposing counsel. Who better to attest to our fitness? By the time a reference is needed, it is too late to begin depositing currency into that account. Instead, reputation for trustworthiness and civility is built through time and reoccurring positive contacts within our local legal community.

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Committee spotlight

HAY Center Committee:

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The Houston Lawyer

By Charles D. Shaw, Jr.

Fostering Community

s attorneys, we can sometimes forget the support cess graduating high school and pursuing their next advensystems that have helped make us who we are totures. The event is a reminder to students that their hard work day. Family, friendship, education, housing, financand efforts are not only recognized, but celebrated. es, transportation, medical care, and While the HBA HAY Center food. The support we have received Committee helps to plan and supthroughout our lives has helped us accomplish port these three events, the HAY our goals.

Center Committee endeavors to Now imagine having those needs go unmet. provide much more than that.

Foster youth face this situation every day. The Like the first collaboration beHAY Center was founded to help foster youth tween the HBA and HAY Center in Harris County receive these support systems over a decade ago, HAY Center and more—working to empower current and Committee members continue former foster youth to be successful, productive to volunteer at the Center’s life adults through training, employment, and perskills education sessions—helpsonal achievement. ing youth learn the importance of In 2009, the Houston Bar Association bepersonal and social relationships, gan partnering with the HAY Center to prolife decisions and responsibilities, vide speakers for the Center’s financial management, housing monthly education sessions, and transportation, job readiand in 2010, the HBA HAY ness, and health and safety.

Center Committee was offiThese classes do more than cially formed. As years have just educate youth. They help passed, the HBA HAY Center ground us in our profession Committee has coalesced into and remind us that we are here a strong support system for to help better the community. foster youth.

While the HAY Center ComEach year, the committee mittee has evolved over the last focuses on three big annual decade, one thing has become events: the Holiday Party, a clear: the support that we as atProm Readiness Event, and torneys can, and do, provide to the Graduation Party. foster youth is invaluable, and The Holiday Party occurs our volunteer efforts help supevery December and is a place port our pro bono and wellness Photos from the 2022 HBA HAY Center Holiday Party. for foster youth to celebrate the efforts as a profession. season with food, gifts, and family-friendly fun. The commitBe on the lookout for more to come from the committee as tee works to provide the donations, food, planning, and prepathe HAY Center develops its new campus—with wrap-around ration necessary to make this event feel seamless each year. services and residences for youth aging out of the foster sysThe Prom Readiness Event allows youth to prepare for the tem—throughout the next year. For more information on the prom, with the HBA HAY Center Committee gathering donaHAY Center and HBA HAY Center Committee, visit www.haytions of formal wear and volunteering to help at the event—ascenter.org and www.hba.org/haycenter. sisting youth in “shopping,” tailoring clothes, and giving advice on the best look for the night.

Charles D. Shaw, Jr. is an assistant district attorney in the Asset Finally, the Graduation Party lets youth celebrate their sucForfeiture Division of the Harris County District Attorney’s Office.

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November/December 2022

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SECTION spotlight

T

By Carly Milner

Family Law Section

he HBA Family Law Section has had an active 2022 The section also provides other substantive updates for memunder the leadership of Chair Jennifer Caras. On the bers. In September, the section’s board met with Harris County first Wednesday of every family law judges to discuss the judgmonth (except December), es’ feedback for attorneys practicing the section holds a meeting in their courts. The section turned via Zoom on a substantive topic. In that feedback into a reference docuSeptember, the meeting dealt with ment for members. The section also overcoming family law presumpprovides a monthly update of interesttions, and in October, attendees ing new family law cases from courts learned about the amicus statute. across Texas. In addition, the section In November, the section welcomed holds a bimonthly happy hour on the judges from Brazoria, Montgomery, first Tuesday of every other month, Fort Bend, and Galveston counties usually at The Rustic in Uptown Park to provide perspectives on practicnear the Galleria. In December, the ing in those areas surrounding Harsection joined with the Gulf Coast ris County.

Family Law Specialists and The Burta The section also holds an annual Rhoades Raborn Inn of Court for their all-day CLE program. This year’s popular Annual Holiday Party at the program took place in October.

Hotel ZaZa. Topics ranged from division of asLooking ahead to 2023, the section sets to best practices in dealing with has already planned several programs, clients and custody evaluations. including “Presenting Your Waste The speakers included Judge JanClaim,” “Deposition Techniques,” and ice Berg, Judge Sonya Heath, Judge “Family Law Appeals,” along with The HBA Family Law Section’s recent events included a Halloween costume drive for kids.

Germaine Tanner, and Judge Gloria sessions with Harris County associate Lopez, along with attorneys. October was a busy month for judges. HBA members can look out for more details in the coming the section. For the first time, the section held a Family Law weekly and monthly newsletters.

Costume Drive to collect costumes for kids. The costumes were donated through the Dispute Resolution Center, and the Carly Milner is a trial lawyer and partner at Fogler, Brar, O’Neil kids who received them were delighted! & Gray LLP.

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LEGAL TRENDS

Fifth Circuit Court Holds That Courts— Not Arbitrators— Determine Whether Arbitration Agreements Are Enforceable and Upon Whom

W

By Mark P. Yablon

The Houston Lawyer

ho should decide whether an arbitration agreement is enforceable and upon whom when a dispute over arbitrability arises? Apparently, such threshold questions are not as obvious as one would expect nine decades after Congress enacted the Federal Arbitration Act of 1925, 9 U.S.C.A. § 1, et al. (the FAA).

The FAA was created to put arbitration agreements on the same footing as other enforceable contracts because courts were loath to enforce those agreements a century ago. Now, federal policy supporting the right to arbitrate has been misconstrued to say that arbitration is preferred over litigation. But arbitration is about consent—not coercion or favoritism— subject to state contract law and the FAA. Courts Must First Decide Whether an Arbitration Agreement Is Enforceable and Upon Whom In 2019, the U.S. Supreme Court issued an 8-0 opinion in New Prime Inc. v. Oliveira instructing that “a court should resolve whether the parties’ contract falls within the [FAA’s] ambit or § 1’s exclusion before invoking the statute’s authority to order arbitration.”1 In doing so, the Court 44

November/December 2022

explained: “we agree with the First Circuit that a court should decide for itself whether [the FAA’s] ‘contracts of employment’ exclusion applies before ordering arbitration.”2 Furthermore, the FAA states, “A party aggrieved by the alleged failure . . . of another to arbitrate under a written agreement for arbitration may petition any” district court with jurisdiction to compel arbitration.3 The FAA grants courts—not arbitrators—the jurisdiction to compel arbitration. So, if a court delegates the arbitrability question first to an arbitrator, then would that not violate Oliveira and add unnecessary costs and delay?

This year the Fifth Circuit addressed issues of arbitrability in Newman v. Plains All American Pipeline, L.P., 23 F.4th 393 (5th Cir. 2022). The case involved Appellant/Defendant Plains All American Pipeline, L.P. (Plains), Appellant/Intervenor Cypress Environmental Management-TIR (Cypress), and Appellee/Plaintiff Kenneth Newman (Newman). Newman and Cypress signed an employment arbitration agreement, which did not name or include Plains as a signatory. Cypress assigned Newman to work at Houstonbased Plains. Newman sued Plains for unpaid overtime.

Justice Don Willett, formerly of the Supreme Court of Texas, wrote the majority opinion, which affirmed the district court’s refusal to compel arbitration. The Court said that “the FAA requires courts to first ‘determine[ ] whether a valid arbitration agreement exists’ before granting motions to compel arbitration,”4 and “courts must decide ‘at the outset’ whether an enforceable arbitration agreement exists at all.”5 When “parties dispute whether an enforceable arbitration agreement exists between them, it takes a court to decide.”6 The Court followed the FAA: “If any suit [is] brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing,” that court must be “sat-

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isfied that the issue involved... is referable to arbitration” if a party asks.7 The Fifth Circuit held in that “[a]pplying Texas contract law and equitable doctrines to this case compels one conclusion: Plains cannot enforce the Newman– Cypress arbitration agreement.”8 As for compelling a non-signatory, if “a corporate subsidiary is not enough to equitably invoke artful-pleading estoppel in Texas, then it is beyond doubtful that the Texas Supreme Court would allow a completely separate business do it.”9 Therefore, non-signatory—Plains—could not compel Newman to arbitrate simply because Newman, Cypress, and Plains had a working relationship.

The Fifth Circuit declined en banc review of Newman, but not without a dissent.10 Dissent: Arbitration Agreement May Delegate Arbitrability to Arbitrator The dissent in the denial of the en banc rehearing of Newman, written by Justice Edith Jones, declared that “the panel seriously misconstrues the law governing arbitration” and the Fifth Circuit is “now out-of-step with at least five other circuits (to say nothing of the Supreme Court) and appear to be in accord with none.”11 The dissent added: Newman signed an agreement to delegate arbitrability that referenced not only TIR and Cypress but also Plains.

By virtue of the delegation, an arbitrator should have addressed arbitrability in the first instance. In the alternative, under Texas law intertwined claims estoppel requires arbitrating the merits because the relationship between Plains and Cypress is sufficiently close and Newman’s FLSA claim is intimately intertwined with his employment contract.12 In short, the Fifth Circuit held in Newman that courts—not arbitrators—determine threshold questions, such as wheth-

LEGAL TRENDS

er the arbitration agreement is enforceable and who may be compelled to arbitrate.

Newman also appears to be in lockstep with both the Texas and the U.S. Supreme Courts as cited above—not outliers as the dissent portrays. When a dispute about arbitrability arises, no arbitrator should be engaged until a court resolves statutorily required, threshold questions.

What Might This Mean for Potential Litigants and Arbitration Agreement Drafters?

The adage, “say what you mean and mean what you say,” applies to arbitration agreements more than ever. The Fifth Circuit, following the U.S. Supreme Court’s lead, is telegraphing very plainly: If you want an arbitration agreement to compel any possible litigant to arbitrate, then make sure your agreement spells out who is subject to compulsory arbitration.

Looking forward, companies such as Cypress and Plains should have working agreements with each other that clearly state they and their employees are bound to arbitration in any dispute between the companies or between an employee of one company and that employee’s employer or the other company where the employee is working on assignment. For example, Cypress and Plains should have had an arbitration clause stating that any dispute between Newman and Cypress, Newman and Plains, or Cypress and Plains involving Newman mandates arbitration. The employee should also be required to sign the agreement that spells out the companies’ intent. And all related agreements should be reviewed to ensure that one agreement does not negate an arbitration clause in a related agreement.

The Newman decision certainly jolted those who favor arbitration and those who may have been able to compel unsuspecting opposing parties into arbitration despite never having signed an arbitration agreement or even being aware of such an agreement. Newman further constrains

arbitrators from deciding arbitrability by following the statute, which specifically states that the courts should decide arbitrability when asked. For those who want to follow blackletter law and know the rules, this decision is well-grounded.

As such, when there is a question about whether a dispute is subject to arbitration, it is only fair that the courts should decide whether arbitration is contractually enforceable, especially when non-signatories are involved.

Mark P. Yablon is managing member of Yablon Law PLLC, which operates a statewide law practice focused on commercial litigation, bankruptcy, real estate, and probate from Yablon Law’s growing office on the AIG campus.

Endnotes

1.

2.

3.

4.

New Prime Inc. v. Oliveira, 139 S. Ct. 532, 537 (2019).

Id. 9 U.S.C.A. § 4.

Newman, 23 F.4th at 398 (citing Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 530 (2019), which cited 9 U.S.C.A. § 2).

5. Newman, 23 F.4th at 398 (citing 2019 and 2003 Fifth Circuit cases).

6. Id. at 408.

7. 9 U.S.C.A. § 3.

8. Newman, 23 F.4th at 408.

9. Id. 10. Newman v. Plains All American Pipeline, L.P., 44 F.4th 251 (5th Cir. 2022).

11. Id. at 251.

12. Id. at 257.

Reporting the News Is Not a Crime

I

By David T. Lopez

t is not a crime to be a journalist,1 and “a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.”2 The Fifth Circuit so held on August 12 to be obvious principles of the First Amendment.

Stating the obvious occurred after a 59page opinion from the District Court,3 an initial order on appeal reversing dismissal and remanding, and a substituted opinion issued to accommodate the dissent of the

chief judge.

The “citizen journalist” in the case describes herself as La Gordiloca,4 and was described in a New York Times headline as “the swearing muckraker upending border journalism.”5 Apart from the captivating facts of the case, the Fifth Circuit opinion is an important step in clarifying the defense of “qualified immunity,” which has been roundly criticized as unfairly protecting public officials from civil rights violations. See, e.g., Jay Schweikert, Qualified Immunity: A Legal, Practical, and Moral Failure, Policy Analysis No. 901, CATO INSTITUTE, (Sep. 14, 2020). (“In practice, this legal standard is a huge hurdle for civil rights plaintiffs because it generally requires them to identify not just a clear legal rule but a prior case with functionally identical facts.”)

The Fifth Circuit now concurs that citing governing case law finding a violation under factually similar circumstances is not the only way to defeat qualified immunity.

While such prior opinions might provide strong support that the law is clearly established, an official who commits a patently obvious violation of the Constitution is not entitled to qualified immunity. “If the freedom of speech secured by the First Amendment includes the right to curse at a public official (citing Supreme Court authority), then it surely includes the right to politely ask that official a few questions as well.”

La Gordiloca, Priscilla Villarreal, has driven her pickup truck around the streets of Laredo since 2015, prepared to record accidents, disputes, and government actions on her mobile phone. She posts the recordings on Facebook, at times with biting and reportedly profane Spanglish commentary. According to the memorandum opinion of the district court, she has more than 120,000 followers. She has no regular income from her efforts, but receives donations for equipment and is paid for promotions of local businesses.

Ms. Villarreal reported on the suicidal

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Continued on page 48 November/December 2022

45

Media Reviews

Crude Ambition

By Patricia Hunt Holmes Published by River Grove Books Reviewed by Benjamin K. Sanchez

The Houston Lawyer

F

ollowing the success of her first novel, Searching for Pilar, Houston attorney Patricia Hunt Holmes has penned another thriller, Crude Ambition, a novel made all the more thrilling —to a fellow Houstonian, at least— because much of it is set in our own region.

The story begins innocently enough at a big law summer associate party hosted at a Galveston beachside house. However, the party goes horribly wrong for one of the firm’s summer associates, and she later disappears after the young attorney responsible for her takes her to a nearby hospital. Much intrigue follows, and the plot intersects with the oil and accounting industries, as well as with the government oversight functions performed by the Securities and Exchange Commission. Not surprisingly, Holmes’ handling of the professional details was masterful, and it was clear she knew her subject matter well—whether through her 30-year career as an attorney or by researching the relevant fields to add authenticity to her tale.

Overall, I found the book to be a quick and enjoyable read. As a lawyer and avid reader myself, I enjoy fiction written by other practitioners, especially when the stories are about our common profession and are set in familiar locales. It’s one thing to read a work by John Grisham or Scott Turow set in an unfamiliar place, but a legal thriller becomes all the more engrossing where, as in Crude Ambition, 46

November/December 2022

much of the action occurs close to home.

My only critique of the novel concerns its pacing. While I appreciated the character and plot development in the beginning and middle, I thought Holmes may have rushed the ending. I would have liked, for instance, to learn more about the story’s two main protagonists and the events that follow a climactic meeting between them. Be that as it may, I still greatly enjoyed Holmes’ sophomore effort, and I would recommend it to anyone looking to enjoy a legal thriller set primarily in Texas. The story includes a mix of city and country life, and it’s fair to say Crude Ambition offers something for every type of reader. I am looking forward to Holmes’ next book!

Benjamin K. Sanchez is a 25-year attorney handling consumer, landlord/ tenant, and real estate disputes.

Wrongful Convictions in Sexual Assault: Stranger Rape, Acquaintance Rape, and Intra-familial Child Sexual Assault

By Matthew Barry Johnson Published by Oxford University Press Reviewed by Jennifer Smith

I

n Wrongful Convictions in Sexual Assault: Stranger Rape, Acquaintance Rape, and Intra-familial Child Sexual Assault, author Matthew Barry Johnson, associate professor of psychology at City University of New York, discusses the legal and social context, biases, challenges, and misconceptions surrounding wrongful convictions in

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sexual assault cases. This important work begins by acknowledging that both rape/ sexual assault and wrongful convictions “are tragic and traumatic occurrences . . . resulting in grave injustice for the [innocent] defendants, the crime victims, and society at large,” and it tackles this difficult subject matter through a combination of short case summaries and exhaustively sourced statistics derived from empirical studies.

Of course, no one knows exactly how many people have been wrongfully convicted of sexual assault. Professor Johnson limits his focus to data pertaining to U.S. cases only, and then only to cases in which the defendant received an official declaration of innocence —likely a tiny fraction of all actually innocent sexual assault convicts. Using this data set, the book explores common features among these cases.

One such feature is the way in which police investigation methods can lead to wrongful convictions. Here, Professor Johnson builds on his earlier scholarship concerning false confessions, especially those confessions instigated via the “Reid technique,” which involves creating a high-pressure interrogation environment that, critics say, leads to an unacceptably high rate of false confessions. This discussion serves as a precursor to the book’s broader exa m i n at ion of what Professor Johnson terms “the black box,” i.e., the lack of t r a n s p a rency in investigation methods.

Subtopics include law enforcement’s failure to consistently record suspect interrogations—including the period when a suspect is waiting for formal questioning

Media Reviews

to begin—the ineffectiveness of coercive threats, and the ways in which evidence can be manufactured even without malevolent intent on the part of investigators.

This section of the book also explores dubious scientific testimony and unreliable informant testimony, both of which contribute to the phenomenon of wrongful convictions in sexual assault cases.

Another common feature—one that defies the widespread view that sexual assault offenses typically involve stranger-on-stranger violence (i.e., “stranger rape”) —is the fact that, in 78% of these cases, the victim knows the assailant (according to data compiled by the U.S. Bureau of Justice Statistics). As for those cases that do involve stranger rape, they are disproportionately associated with wrongful convictions. Misidentification in these cases may be as high as 30%, and the problem is exacerbated by cross-racial misidentification—itself a recurrent theme throughout the book. Furthermore, the data reveal a “concentration of wrongful convictions in sexual assaults associated with white victims of stranger assaults by Black and Latino assailants,” which, as Professor Johnson notes, is “a decidedly rare offense.”

One particularly interesting chapter covers issues surrounding child sexual abuse cases, including difficulties with interviewing young children and how societal hysteria (e.g., the “Satanic Panic” controversy of the 1980s and 1990s) can result in the deprivation of a fair trial for defendants. And in this same chapter, Professor Johnson addresses how the rancor of divorce and child custody battles may lead to false accusations and wrongful convictions in especially fraught cases.

Notwithstanding its grim subject matter, Wrongful Convictions in Sexual Assault ends on something of an optimistic note, with proposed criminal justice reforms that would ameliorate the problems Professor Johnson identifies in his

book. Among these practical suggestions are unbiased lineup instructions to witnesses, requirements that interrogations be recorded in their entirety (with penalties to follow in the event these mandates are disregarded or circumvented), and reforms in the field of the forensic sciences (e.g., laboratory independence from law enforcement and the prosecuting authority). Johnson concludes: [T]here are concerns in some quarters that the focus on wrongful conviction is detrimental to the US legal system,

will result in unfavorable oversight and regulation of law enforcement, and detracts from the heralded esteem of US legal institutions. These are some of the very real challenges and obstacles to meaningful reform. Yet, the growing record of confirmed wrongful criminal convictions demands attention and reform. [659].

Jennifer Smith is director of communication and associate corporate counsel for PPI Quality & Engineering, LLC.

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November/December 2022

47

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From page 45

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EXCELLENT MIDTOWN LOCATION Several options available ranging from executive sized offices to paralegal—support space. Full shared kitchen and all amenities such as internet access and conference room availability. Contact Elena at 713-960-8300 or Elena@rosenberglaw.com.

Endnotes

Call today to

1. Villarreal v. City of Laredo, 17 F.4th 532, 54 6 (5th Cir. 2021) (Opinion withdrawn and superseded by Villareal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022)).Villarreal v. City of Laredo, 44 F.4th 363, 363 (5th Cir. 2022).

2. Villarreal v. City of Laredo, 2020 WL 13517246 (S.D. Texas, 2020) (Kazen, Mag.J.).

3. Villarreal v. City of Laredo 2020 WL 13517246 (S.D. Texas, 2020) (Kazen, Mag.J.).

4. “Gordiloca” has been roughly translated as “crazy fat lady,” but a more nuanced bow to Laredo usage would not refer to “gorda” but to the diminutive “gordita,” a more likely self-adopted nickname, with no negative connotation.

5. Simon Romero, La Gordiloca: The Swearing Muckraker Upending Border Journalism, THE NEW YORK TIMES (March 10, 2019).

6. On October 28, 2022, the Fifth Circuit elected to rehear the case en banc.

The Houston Lawyer

Mary Chavoustie

mary@quantumsur.com

281.955.2449 ext. 3 November/December 2022

jump of a man from a public overpass and on a traffic accident with fatalities, in both instances obtaining information from witnesses or relatives of the deceased, and she sought confirmation from local police. Police charged her with violation of a state statute that prohibits solicitation from a public official of information that has not been made public. She turned herself in upon learning of arrest warrants and was booked and jailed. The police reportedly ridiculed and harassed her during the booking and did not stop the investigation after a state district judge ruled the law unconstitutionally vague.

In a dissenting opinion to the ruling, Fifth Circuit Chief Judge Richman disagreed with some of the factual contentions and stated the district court judgment should have been upheld under the intermediary doctrine, since a judge issued the arrest warrants on the charges brought by the police.6 David T. Lopez, a Houston domestic and international arbitrator and mediator, is a former journalist, a native of Laredo, and a member of The Houston Lawyer editorial board.

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LEGAL TRENDS

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

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Baker Botts L.L.P. BakerHostetler LLP Balch & Bingham LLP Beck Redden LLP Blank Rome LLP Bracewell LLP Law Office of David Hsu Brogden and Associates CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Dentons US LLP The Ericksen Law Firm Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Energy Hasley Scarano, L.L.P. Haynes and Boone, L.L.P. Hunton Andrews Kurth LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. The Jurek Law Group, PLLC Katine & Nechman L.L.P. Kean Miller LLP Law Firm of Min Gyu Kim PLLC

King & Spalding LLP KoonsFuller, P.C. The LaFitte Law Group, PLLC Kirkland & Ellis LLP Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices Marathon Oil Company McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright US LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Painter Law Firm PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price Rapp & Krock, PC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell Oil Company Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Angela Solice, Attorney at Law Sorrels Law Squire Patton Boggs Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Law Office of Cindi L. Wiggins, J.D. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP