Legislative Updates: – Civil Litigation – Criminal Law – Appellate Practice – Estate Planning and Probate Texas Senate Bill 4: Sanctuary Cities New Texas Laws to Fix City of Houston’s Pension Crisis Hurricane Harvey Updates
Volume 55 – Number 2
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contents Volume 55 Number 2
FEATURES Update: 10 Legislative Civil Litigation By David V. Wilson II
Update: 14 Legislative Criminal Law By Alejandro Macias
Update: 16 Legislative Appellate Practice By Kent Rutter and Natasha Breaux
Update: 18 Legislative Estate Planning and Probate By Jana Fay Bacarisse
Estate Planning and Probate
Senate Bill 4: 22 Texas Sanctuary Cities By Rehan Alimohammad
Texas Laws to Fix City of 26 New Houston’s Pension Crisis By Jesse Gelsomini and Clare Staub
‘Friendly First,’ Texas’s First 30 The Court of Appeals, 1892 – 2017
By The HON. Terry Jennings
Fourteenth at Fifty: 33 The Poised for Change, Prepared for Challenge, and Pointed Toward the Future
By The Hon. Kem Thompson Frost
and Fourteenth Courts of 37 First Appeals Celebrate Milestones
The Houston Lawyer
38 Hurricane Harvey Updates
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: firstname.lastname@example.org Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.
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contents Volume 55 Number 2
departments Message 6 Presidentâ€™s We Are Giving Back By Alistair B. Dawson the Editor 8 From Legislative Changes By Farrah Martinez Lawyers Who 42 Houston Made a Difference
James A. Baker, Jr.
By The Hon. Mark Davidson
the record 43 off Christina Crozier:
The Art of Appellate Law By Mini Kapoor
Spotlight 44 Committee The Dispute Resolution Center:
Providing Quality ADR Services to the Residents of Harris County for Over 35 Years By Marni Magowan Otjen
45 David J. Beck
A Profile in professionalism Partner, Beck Redden LLP
Trends 46 Legal Legislature Updated Medical
Malpractice Pre-suit Notice Requirements By Robert Painter
ReviewS 46 Media Law Firm Cybersecurity Reviewed by Raymond L. Panneton
The Houston Lawyer
Correction: On page 34 of the July-August issue, the photos of 50-year members Ben Harold Welmaker, Jr. (with his wife, Donna) and Gary L. Wood were inadvertently switched. Corrected versions of both photos appear in the online magazine at thehoustonlawyer.com.
The Chickensh** Club: Why the Justice Department Fails to Prosecute Executives Reviewed by David V. Wilson II
48 Litigation MarketPlace
By Alistair B. Dawson Beck Redden LLP
We Are Giving Back
n my first President’s Message, I urged everyone to give back established at George R. Brown, Simonton Community Church, to our community. Well, it did not take long. I am so proud Greenspoint Mall, Baytown Community Center and several loof our profession for the way in which it has responded to the cations in the towns surrounding Houston. We have legal aid challenges and needs created in the aftermath of Hurricane booths at the DRCs which are located in Houston. If you would Harvey. Almost immediately, HBA lawyers volunteered to like to volunteer at one of these legal aid booths, you can sign up help those in the shelters. Along with our partners at Lone Star at the HVL Portal, portal.makejusticehappen.org. Legal Aid, we set up legal aid booths in the shelters located at In addition, there will be thousands of Houstonians who will the George R. Brown Convention Center, Toyota need legal help as a result of Harvey. They will Center, NRG Stadium and Lakewood Church, need a lawyer to help them with their landlord Almost and staffed them as long as the shelters remained or their insurance company or with an appeal for immediately, open. In addition, the HBA conducted LegalFEMA relief. Line every day from September 5 until October We are part of the largest disaster relief effort HBA lawyers 13, and we will expand that if needed. Finally, in the history of the United States. To put it in volunteered to the HVL has conducted over a dozen legal clinics perspective, there were approximately 100,000 and legal fairs since Harvey. Through these legal FEMA claims after Hurricane Katrina. There help those in assistance booths, clinics, fairs and LegalLine, have been approximately 550,000 FEMA claims we have helped approximately 10,000 victims of because of Harvey. There will be thousands who the shelters. Hurricane Harvey. Those we helped had quesneed us as they start the process of putting their tions about replacing their food stamps, getting FEMA relief, lives back together. I urge you to continue giving. Please sign filing insurance claims, dealing with their landlord and many up at portal.makejusticehappen.org to take a Harvey Relief case. other legal questions. Approximately 900 lawyers have volunYou will be notified when we have someone who needs your teered so far. This has been a very impressive response. At a time help. of real crisis in their lives, we helped bring answers and, to some I would also like to thank our fellow Bar Associations. Shortly degree, calmness to lives which had been turned upside down. after Harvey hit, I began to receive offers of help from Bar AssoWe made a profound difference in their lives. ciations around the country. Our friends from the Louisiana Bar, I would like to give special recognition to the people at Lone the Lafayette Bar, the New Orleans Bar, the Dallas Bar, the Ohio Star Legal Aid and Houston Volunteer Lawyers for their incredBar, the New York Bar, the New Mexico Bar, the South Caroibly great and arduous work in providing legal aid after Harvey. lina Bar, the SOLACE program, the American Bar Association, As some of you know, Lone Star’s office was ruined by fire on the San Francisco Bar, the American Corporate Counsel and the Monday of the storm. Undaunted, Lone Star lawyers showed of course the State Bar of Texas, (and I am probably forgetting up at George R. Brown on Tuesday to start work. Lone Star and someone) all reached out to offer assistance. Lawyers across our HVL partnered to provide lawyers and volunteers at the shelters wonderful country joined together to help those in need. for the entire time they remained open. Lawyers and staff from On behalf of the HBA, I reached out to Bar Associations in both organizations worked tirelessly to make sure that those at Florida who suffered through the effects of Hurricane Irma, and the shelters got the help they needed. we have been providing them with aid, assistance and resources Our work is not done. I expect that the real challenge is comto help them deal with those who suffered in that storm. Our ing. Thousands of people who were impacted by Harvey will giving back continues. need our help in the months to come. The next step in the recovA heartfelt thank you to all of you who have donated your ery process is that those who lost their homes or apartments and time or money. You have made a tremendous difference at a time have no place to go will be housed in Disaster Recovery Centers of real need. I sincerely hope that the giving continues until we (DRCs) located throughout Houston. Thus far, DRCs have been have fully recovered from this disaster.
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from the editor
By Farrah Martinez Farrah Martinez, PLLC
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Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson MehaffyWeber PC
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The Houston Lawyer
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Hon. Jeff Work Work Law Firm
Texas Legislature, Hurricane Harvey
very other year, the Texas Legislature convenes its legislative session to enact new laws and to repeal or amend existing statutes. The 85th Legislative Session came to close after 140-days filled with bills drafted and filed, citizen demonstrations and protests, late-night committee meetings and, of course, enough drama for a daytime soap opera. For those of us who relish in the legislative process, this is truly an exhilarating time. At the close of this session, lawmakers filed 4,333 bills in the House and 2,298 in the Senate for a total of 6,631. Of those bills filed, only 1,139 bills passed both chambers and made it to Governor Abbott’s desk for his approval. Upon a bill’s arrival, the governor has three options: (1) to sign a bill into law, (2) to veto it, (3) or to do nothing. If the governor chooses the latter, then within ten days of receipt the bill becomes law as if the governor elected to sign it. During this regular session, the governor vetoed 50 bills. It is impossible to cover all of the legislative changes; however, this issue encompasses remarkable changes that impact the practice of law, and more importantly our lives and the communities in which we live. Rehan Alimohammad’s review of Senate Bill 4 (the Sanctuary Cities Bill) captured nationwide coverage for its legislative intent to prevent local law enforcement from implementing policies and practices either formally or informally that contradict SB 4 and creates a misdemeanor offense for anyone who refuses to detain noncitizen inmates. Elected officials and government appointees also face removal from office if they violate provisions of SB 4. As one might imagine, this legislation created a stir on the Capitol and is already the subject of ensuing litigation. Alejandro Macias’ criminal law update details many noteworthy changes for criminal practitioners such as the Sandra Bland Act, the Texting-While-DrivingBan and HB 34, aimed to curb wrongful convictions, which requires law enforcement to audio or visual record custodial interrogations for certain felony offenses. The civil law update, written by David V. Wilson
II, highlights HB 1774, a hail damage reform bill; HB 1463, which amends the procedures for prosecuting and defending Americans with Disabilities Act claims; and SB 807/HB 1844, aimed to amend Chapter 272 of the Business and Commerce Code to include architects and engineers, and so much more. Jana Fay Bacarisse’s Estate Planning and Probate update guides practitioners through changes to thirdparty acceptance of powers of attorney, enacted powers given to agents, changes to the compensation, amendments to revocation of medical powers of attorneys and the handling of digital assets in probate matters. Kent Rutter and Natasha Breaux’s appellate update explains notable House Bill 1761, which restricts the Supreme Court’s jurisdiction to “a question of law that is important to the jurisprudence of the state” and yet, expands the Court’s authority to review interlocutory orders without any statutory limitations to that jurisdictional power. Next, Jesse Gelsomini and Clare Staub tackled the new laws aimed at addressing the controversial pensions issues that have plagued the City of Houston for years. As noted in the article, before the reforms, the City’s three separate pension systems, which cover police officers, firefighters, and municipal employees, respectively, were collectively underfunded by an estimated $8.1 billion, with unfunded liabilities projected to grow at unsustainable rates. Jesse and Clare provide a thorough overview of the past problems, current fixes, and realistic expectations. Then, this issue takes a historical turn and celebrates the anniversaries of the First and Fourteenth Courts of Appeals. Justice Frost’s article The Fourteenth at Fifty: Poised for Change, Prepared for Challenge, and Pointed Toward the Future explores and celebrates the Fourteenth’s 50th birthday with a look back at the last half-century that reveals revolutionary changes to the court’s size, location, and jurisdiction, but also in its judicial makeup, systems, and processes. Similarly, Justice Terry Jennings’ article The “Friendly First,” Continued on page 49
BOARD OF DIRECTORS President
Alistair B. Dawson
Warren W. Harris
Benny Agosto, Jr.
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Richard Burleson David Harrell
Diana Gomez Greg Ulmer
Collin Cox Hon. Erin Lunceford
DIRECTORS (2017-2019) Daniella Landers Lionel M. Schooler
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he 85th Legislature of Texas completed its regular session on Memorial Day of 2017. The amount of intra-party and inter-party squabbling that took place during the session, as well as the resulting special session called by the Governor, have been heavily reported in statewide media. Therefore, a discussion of those bills that failed to make it to the Governor’s desk and into law is beyond the scope of this paper. This article, instead, will focus on highlighted bills impacting those who practice civil litigation and trial law in Texas.
amount alleged to be owed and the amount of necessary attorney’s fees already incurred by the claimant. Should notice be omitted, the bill requires the court to abate the action. In addition, the interest penalty on late payments has been reduced from 18% to the prime interest rate plus 5%, and the amount included in the damages pre-judgment includes reasonable and necessary attorney’s fees. Those attorney’s fees will be calculated as the lesser of: (1) the amount of reasonable and necessary attorney’s fees supported by sufficient evidence at trial and determined to have been incurred by the claimant in bringing the action, (2) the amount of the attorney’s fees that may have been awarded to claimant under any other statute, or (3) the total amount to be awarded in the judgment, divided by the amount alleged to be owed, then multiplied by the total and reasonable and necessary amount of attorney’s fees supported by sufficient evidence and determined to have been incurred in bringing the action. The bill requires the court to award the full amount of reasonable and necessary attorney’s fees if the resulting fraction of the amount awarded in the judgment divided by the amount alleged to be owed is at least .08. Should the fraction be less than 0.2 or if the claimant omitted pre-suit notice, attorney’s fees are prohibited.
Insurance Perhaps the most contentious of the bills which impacted civil justice in the Legislature was HB 1774, a purported hail damage insurance claim reform bill. It applies to claims against an insurer or agent arising from damage to real property caused by “a violent act of nature, including an earthquake or earth tremor, wildfire, flood, tornado, lightning, hurricane, hail, wind, snow, or rain.” In such claims, a new 60-day pre-suit notice requirement has been added, which requires a statement of the facts giving rise to the claim, the
Americans with Disabilities Act For those who prosecute or defend allegations of violations of the Americans with Disabilities Act (“ADA”), HB 1463 significantly amends the procedure for such claims. This bill requires a claimant to give 60-days written notice of intent to bring a state ADA claim. The written notice triggers a right for the alleged violator to correct any violations within a 150-day period. HB 1463 prohibits this notice from making a demand for damages, request for settlement, or offer to settle a claim without a determination of whether the condi-
By David V. Wilson II
Civil Litigation T
tion stated by the notice is excused by law or has been remedied. It requires a claimant to prove by a preponderance of evidence that the respondent has not remedied the alleged violation. If suit is filed while corrections have already been initiated, there is a right to abate such a suit. It also provides for a motion for dismissal if the respondent has corrected such violations. Construction Law For those who defend architects and engineers in construction litigation, SB 807/HB 1844 amends Chapter 272 of the Business and Commerce Code. Specifically, the definition of a contract “principally for the construction or repair of improvement to real property in this state” was amended to clarify that it also applies to architects and engineers, in addition to general contractors and subcontractors. Therefore, Chapter 272’s provisions that make contractual forum selection clauses that select another state voidable by the party obligated to perform the work now apply to architects, owners, engineers and contractors. In other words, under this bill, contract disputes of virtually all types will be resolved in Texas courts under Texas law, should parties to whom Chapter 272 applies invoke its provisions. Texas Supreme Court Jurisdiction Appellate practitioners should take note of HB 1761. This bill cleans up and revises the Texas Supreme Court’s jurisdiction. That jurisdiction now applies to an appeal that presents a question of importance to the jurisprudence of the state. Language that referred to the long obsolete “writ of error” is eliminated by this bill, and the modern term “petition for review” is incorporated as a clarification. Attorney’s Fees In another change to existing law that impacts construction litigation, HB 2121/SB 1950 expands the procedure thehoustonlawyer.com
for a recovery of attorney’s fees in a breach of contract action against the state. Prior to this change, claims under $250,000 by contractors, required to be resolved by the State Office of Administrative Hearings, could not result in an award of attorney’s fees against the state. This bill, which took effect on June 15, 2017, allows for the recovery of attorney’s fees if the claim is for engineering, architectural, or construction services provided to the state, and the amount is less than $250,000 excluding penalties, costs, expenses, prejudgment interest and attorney’s fees. Claims over $250,000 are resolved in district court, and the law with respect to those claims remains unchanged. Settlement Given that most cases today end in settlement, it should be noted that two bills passed which impact certain settlement types. Specifically, HB 53/ SB 1463 limits confidentiality of settlements in certain circumstances in the case of litigation against governmental units. Specifically, if the claim exceeds $30,000, the settlement cannot bar the claimant from disclosing any matter to others, including the media. This bill took effect on September 1, 2017. In addition, HB 3356, a bill which took effect on June 15, 2017, allows a court,
upon request of the payee, to redact the name and other identifiers of the payee from its order approving a transfer of structured settlement. The public copy of the order approving the transfer in such circumstances will be filed under seal. After six months, the order can be unsealed on the motion of an interested party, or by the court, sua sponte. Jury Trials More than one bill was passed which impacts jury trials. First, HB 1103, taking effect on May 29, 2017, now requires a voter registrar to exclude from the jury list any name on its suspense list. In addition, SB 46/HB 1136, which went into effect on September 1, 2017, allows judges to poll jurors by juror identification number as opposed to by name. Finally, SB 259/HB 1755, that took effect on September 1, 2017, requires a juror summons to include an electronic address for downloading the juror questionnaire, and otherwise includes provisions allowing for the electronic submission of juror information. New Tort Causes of Action In the area of tort liability, a couple of new causes of action were created which both took effect on September 1, 2017. First, HB 2612 imposes strict liability, as well as joint and several liability, upon parties who produce, sell, provide or distribute certain synthetic controlled substances. This cause of action is not subject to any cap on exemplary damages. Second, SB 179 creates a cause of action for injunctive relief against a person engaging in cyberbullying of a person
under 18 years of age. In addition, SB 179 provides that such relief can be sought against a parent, guardian, or other person standing in the place of a guardian if the party engaging in cyberbullying is a minor. Immunity The Texas Legislature also continued its recent trend of extending immunity from tort liability in specified circumstances. For example, if one removes a “vulnerable person” from a locked motor vehicle because it is determined there is imminent harm, HB 478 provides there is immunity from civil liability. “Vulnerable person” includes a child under seven years of age or any person unable to protect themselves due to age, disease or disability. Likewise, a governmental unit is immune from civil liability if a volunteer emergency services member discharges a handgun and is licensed to carry that gun under HB 435. Moreover, the discharge of that handgun is provided by this bill to be outside the scope of the duties of such emergency personnel. In addition, a first responder has no tort liability for providing roadside assistance except when there is gross negligence, reckless conduct, or intentional misconduct under HB 590. These three bills providing for immunity all took effect on September 1, 2017. A number of bills impacting the civil justice system failed to pass the regular session. While they are outside the scope of this article, those bills have sponsors who may well seek to introduce them during the next session. Therefore, practitioners are encouraged to review these failed bills which would have added more legal changes to the above discussion impacting one’s civil trial practice. David V. Wilson II is a shareholder with the Houston office of Mehaffy Weber. He practices business and construction litigation in Texas and Nevada. He is a past Editor in Chief of The Houston Lawyer.
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Criminal Law T
he 85th Regular Session of the Texas Legislature produced some significant changes for the criminal law practitioner.1 The following is a list of key changes.
HB34: Wrongful Convictions Custodial Interrogations. The Code of Criminal Procedure is amended to require audio/visual recordings of custodial interrogations of certain felony cases. This change applies to interrogations after March 1, 2018, regardless of when the offense was alleged to have occurred. If the interrogations are not recorded (absent limited exceptions) the statements of the person being questioned are inadmissible. Jail Informants. The criminal discovery statute is amended to require prosecutors to disclose anything affecting the credibility of jailhouse informants. This disclosure includes the informantâ€™s complete criminal history, grants of immunity or leniency in the present case, other cases in which the informant provided information, and the benefits promised or obtained in those cases. Lineup identifications. Witnesses asked to identify people in photographic lineups must give a statement on how
confident they are in the identification. SB1849: The Sandra Bland Act This bill started out with sweeping changes that specifically dealt with Sandra Blandâ€™s tragic situation, but ultimately very few significant provisions survived.2 Under those provisions that did survive, police must receive training on de-escalation techniques and mental health issues, county jail deaths are to be investigated by an outside agency, racial profiling statistics must include whether physical force was used and if contraband was recovered, and police departments are to make a good faith effort to divert people suffering from mental health issues to an appropriate treatment center. HB62: Texting and Driving Although there are several affirmative defenses, after September 1, 2017 it is illegal to read, write or send an electronic message from a portable wireless communication device while operating a motor vehicle unless the motor vehicle is stopped.3 Violations are punishable by fines between $25 and $99, and subsequent violations will range from $100 to $200. Punishment increases to a Class A Misdemeanor if it is shown that the defendant caused death or seriously bodily injury.4 HB3649: Confidentiality of Family Violence Information This change to the Family Code creates confidential and privileged communications. Effective September 1, 2017, communications between a family violence complaining witness and a family violence advocate are confidential and are prohibited from being disclosed. An advocate is an employee or volunteer of a family violence center such as the Houston Area Womenâ€™s Center. The family violence complaining witness holds the privilege and can prevent disclosure of confidential communications made to a family violence advocate.
for Harris County District Attorney HB3016: Nondisclosures where a complaining witness in a sexuThe eligibility for nondisclosure was al assault case was incarcerated. A writ expanded in this latest legislative sesof attachment to confine a witness can sion. An order of nondisclosure proonly be issued after a hearing where hibits public entities such as courts, the witness is appointed an attorney. If clerks and police departments from the writ of attachment is disclosing certain crimissued, a bond must be inal records subject to The Code set and the witness shall the order. Persons conof Criminal be released on a personvicted of Driving While al bond if they are unIntoxicated will be eliProcedure is able to afford a bond. If gible for orders of nonamended to require the witness is confined disclosure if their blood for 24 hours, then the alcohol concentration audio/visual witness is entitled to a (BAC) was below 0.15 hearing regarding conand they were not inrecordings of tinued confinement. volved in an accident. custodial This change is effective SB4: Sanctuary Cities on September 1, 2017, interrogations The phrase “sanctuary but applies to offenses of certain cities” generally refers charged before that date to those jurisdictions if the discharge date is felony cases. that do not fully coopafter September 1, 2017. erate with federal imThis change migration authorities. HB351: Court Costs applies to Police officers will now After sentencing, a court must inquire whether a interrogations after be able to inquire about a person’s immigration defendant has sufficient March 1, 2018, status when the person resources to immediis detained as opposed ately pay fines and court regardless of to when the person is costs. The court can under arrest. Failure to when the offense waive the fine and costs comply with a federal or require the defendant was alleged to immigrations detainer to perform community request by persons who service instead of payhave occurred. have primary authorment. This hearing must ity to administer a jail (police chiefs, happen before a capias pro fine, an arconstables, and sheriffs) can result in rest warrant for unpaid fines and court Class A Misdemeanor charges under costs, can be issued. new Texas Penal Code Section 39.07. Policies that discourage enforcement of SB966: Possession/Consumption federal immigration laws or cooperaof Alcohol by a Minor tion with federal immigration authoriThe prohibition of Possession of Alties can also result in civil penalties as cohol by a Minor or Consumption of well as removal from office. Alcohol by a Minor will not apply to The 85th Regular Session of the those minors who report a sexual asTexas Legislature will be probably be sault or are the complaining witness in remembered more for the bills that a sexual assault while in possession of, did not make it to the Governor’s desk or consuming, alcohol. (grand jury reform, bail reform, marijuana civil penalties, criminal instead SB291: Imprisoning Witnesses of civil forfeiture, raise the age of juThis was a hot issue in the recent race
veniles, etc.) than those that did pass. Nonetheless, these changes will have an immediate impact on the criminal law practitioner. Alejandro Macias is a solo practitioner dedicated exclusively to the representation of persons under criminal accusation in both state and federal courts. He is the chair of the Criminal Law and Procedure Section of the Houston Bar Association. Endnotes 1. A special legislative session of the 85th Texas Legislature started on July 18. This article applies to the regular session unless specifically indicated. 2. On July 10, 2015, Sandra Bland was pulled over by a DPS trooper for failing to signal a lane change. The routine stop escalated and the trooper forcibly removed Bland from her car. She was arrested and hanged herself in the Waller County jail three days later. 3. There were efforts in special legislative session to make this new law even stronger by outlawing any use of a portable wireless device while operating a motor vehicle unless the motor vehicle is stopped and not in a lane of travel. See SB 39. 4. Class A Misdemeanors are punishable by up to one year in jail and a $4,000 fine.
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www.hba.org September/October 2017
By Kent Rutter and Natasha Breaux
or validity of a statute. The new law removes all these grounds except one: “a question of law that is important to the jurisprudence of the state.” Thus, the Court may still have jurisdiction over cases that fell under the former jurisdictional grounds, but only if they involve a legal question that is important to the jurisprudence of the state. On the other hand, the new law also expands the Court’s jurisdiction. The expressed intent of its sponsor in the House was to expand the Court’s jurisdiction to review interlocutory orders, and the new law removes all statutory limitations on that jurisdiction. For example, appeals from interlocutory orders granting or denying temporary injunctions and orders appointing receivers or trustees may now be taken he most significant legislafrom the courts of appeals to the Sution from this session affectpreme Court of Texas. ing appellate The new law also repractice is a The [Texas moves prohibitions on change to the Supreme] Court the Court’s review of jurisdiction of the Sucertain types of cases, preme Court of Texas. may still have including contested loOther legislation ends jurisdiction over cal elections and cases the practice of counterin which a county court superseding non-monecases that fell would have had juristary judgments against diction. Even though government entities under the former the Court is no longer and requires both of the jurisdictional barred from reviewing State’s highest courts to these entire categories post video recordings of grounds, but of cases, it still may exoral arguments. only if they ercise jurisdiction over a specific case only if it Supreme Court of involve a legal presents an issue that is Texas Jurisdiction “important to the jurisEffective September 1, question that is prudence” of Texas. 2017, House Bill 1761 important to changed the jurisdicCounter-Superseding tion of the Supreme the jurisprudence Non-Monetary Court of Texas (to be of the state. Judgments Against codified as amendments Government Entities to Tex. Gov’t Code §§ House Bill 2776 ends the practice 22.001, 22.007, and 22.225). of counter-superseding judgments On one hand, the new law restricts against government entities (to be the Court’s jurisdiction. Previously, codified as additions to Tex. Gov’t jurisdiction could be based on any Code §22.004).Professor Charles Irvine one of multiple grounds, including a Civil Practice and Remedies Code conflict among the courts of appeals, §§ 6.001-6.004 allow government entia dissent below, or the construction
Appellate Practice T
ties to supersede a judgment without a bond. In effect, a government entity’s notice of appeal automatically supersedes the judgment. However, Texas Rule of Appellate Procedure 24.2(a) (3) allows the trial court to refuse to permit a non-monetary, non-property judgment to be superseded if the judgment creditor posts appropriate security—known as counter-superseding. The Supreme Court of Texas has held that notwithstanding the statute, Rule 24.2(a)(3) allows a party to counter-supersede a judgment against a government entity.1 The new law ends this practice. Specifically, it requires the Court to adopt rules providing that the right of government entities under the Civil Practice and Remedies Code to supersede a judgment is not subject to being counter-superseded under Rule 24.2(a) (3) or otherwise. Counter-supersedeas remains available, however, in cases concerning administrative enforce-
ment actions. The changes to the Government Code were effective September 1, 2017, but the Court is not required to adopt rules implementing the change until May 1, 2018. Videotaping Oral Argument at the Texas Court of Criminal Appeals House Bill 214 requires both of the State’s highest courts to post video recordings of all oral arguments and public meetings online (to be codified as Tex. Gov’t Code § 22.303). Although the Supreme Court of Texas has already done so for ten years, the Texas Court of Criminal Appeals has not. The new rule became effective September 1, 2017, but available appropriated funds or donations are a condition to its implementation. Bills that Failed to Pass Other bills that would have affected
appellate practice failed to pass, but may be reintroduced in future sessions. Examples include legislation that would have: split the Thirteenth Court of Appeals in Corpus Christi in two, creating a Fifteenth Court of Appeals in the Rio Grande Valley (House Bill 474); further expedited appeals in suits affecting the parent-child relationship (House Bill 687); created “chancery” trial and appellate courts to hear certain business-related cases (House Bill 2594); and codified a formula for automatically adjusting salaries of appellate justices (House Bill 3971). Kent Rutter is an appellate partner at Haynes and Boone, LLP. and Natasha Breaux is an appellate associate at Haynes and Boone, LLP. Endnotes 1. In re State Bd. for Educator Certification, 452 S.W.3d 802, 802-09 (Tex. 2014).
By Jana Fay Bacarisse
Estate Planning and “ Probate
Texas Estates Code (effective September 1, 2017) sets out the parameters for the acceptance of and reliance on durable powers of attorney. In recent years, there has been an increase in problems with the effectiveness of durable powers of attorney, including the rejection of the powers of attorney, as well as abuse of powers of attorney by the agent. (All cited statute sections herein refer to the Texas Estates Code, unless otherwise stated).
Third Party Acceptance Many financial institutions have refused to accept durable powers of attorney from an agent if the power of attorney is more than two or three years old. This refusal often results in the need for a costly guardianship, thus defeating one of the purposes for which the power of attorney was created. Now newly-enacted Subchapter E limits a party’s ability to refuse to accept a power of attorney to 11 specific statutory grounds (Sections 751.201 (a) and 751.206). Among these grounds, a durable power of attorney may be rejected if acThe tual knowledge exists Statutory that a report has been made to a law enforceDurable Power ment agency stating a his article will of Attorney good faith belief that provide a brief the principal may be highlight of seform subject to physical or lective 2017 legfinancial exploitation islative changes has been (Section 751.206(9)). by the 85th Regular Sesrevised and Before accepting a sion of the Texas Legisdurable power of atlature relating to estate attorneys need torney, the person to and probate matters. to update whom the power of The newly enacted legattorney is presented islation includes new their forms as may request that the provisions and changes agent certify any factuof September 1, found in the Estates al matter relating to the Code, Property Code, 2017 (Section power of attorney not Trust Code, and Civil later than 10 business Practice and Remedies 752.051). days after the power of Code. attorney is presented (Sections 751.201 and 751.203). Section 751.203(a) proDurable Powers of Attorney vides a suggested form for certification Newly enacted Subchapter E of the
of the durable power of attorney by the agent. The person to whom the power of attorney is presented may also request an opinion of counsel on any matter of law concerning the power of attorney. The attorney’s opinion must be provided to the requestor at the principal’s expense, unless requested more than 10 business days after the power is presented for acceptance. The person requesting a legal opinion must provide the reason for the request in writing. (Section 751.204). The person to whom the power of attorney is presented may also request an English translation (Section 751.205). Section 751.207 requires a written statement of refusal of acceptance. The legislative changes also create a cause of action for refusal to accept a valid power of attorney. Pursuant to Section 751.212, the principal, or an agent acting on the principal’s behalf, may now bring an action against a person who refuses to accept a durable
power of attorney in violation of the Subchapter E. Agent Compensation Handling of the financial and personal affairs for a loved one or friend pursuant to a power of attorney can be very time consuming and costly. Now, Section 751.024 provides that an agent is entitled to compensation and reimbursement of expenses, unless the power of attorney states otherwise. Newly-Enacted Powers Under Section 751.031(b), an agent may take the following actions, but only if the power of attorney expressly grants the following rights to: 1) create, amend, or revoke a trust; 2) make a gift; 3) create or change survivorship rights; 4) create or change beneficiary designations; 5) or delegate authority under the power. These actions are not included in the statutory form, but may be added. The statutory form for
adding these “opt-in” or “hot powers” is found in Section 752.052 (“Modifying Statutory Form to Grant Specific Authority”). In addition, the principal may now delegate to the agent or other person the authority to name successor agents (Section 751.023). Challenges to an Agent Durable powers of attorney meet a need to help us handle the affairs of loved ones, but since a power of attorney grants broad powers, if put in the wrong hands, it can be misused. Under the former law, in situations where the holder of a durable power of attorney appeared to be taking advantage of the principal, often an elderly or incapacitated person, a third party or family member did not have standing to intervene (only the principal or a guardian of the principal could intervene). Now Section 751.251 provides for further judicial relief in those instances. Persons with standing to bring an ac-
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tion requesting a court to construe, or determine the validity or enforceability of a durable power of attorney, or to review an agent’s conduct and grant relief include: the principal, the agent, a guardian of the principal, a person named as a beneficiary to receive property on the principal’s death, a government agency with authority to protect the principal, or another person who demonstrates sufficient interest in the principal’s welfare or estate. Fiduciary Duty of an Agent An amendment to Section 751.101 provides that an agent who accepts appointment under a durable power of attorney becomes a fiduciary as to the principal at the time when acting as an agent under the durable power of attorney. Section 751.101 clears up a previously unclear issue after the decision in Vogt v. Warnock, 107 S.W. 3d 778 (Tex. App.—El Paso 2003, writ denied) wherein the court held that a
party who knew she had been named under a durable power of attorney stood in fiduciary relationship with the principal, even though she never exercised her authority under the power. In addition, an agent now has a duty to preserve the principal’s estate plan (Section 751.122). Revised Form The Statutory Durable Power of Attorney form has been revised and attorneys need to update their forms as of September 1, 2017 (Section 752.051). Further, the official terminology has been updated. The references to “attorney in fact or agent” are now shortened to “agent.” Medical Powers of Attorney Texas Health and Safety Code Section 166.155 (as of January 1, 2018, to read “Revocation; Effect of Termination of Marriage”), states an agent’s authority under a medical power of attorney
is revoked if the agent’s marriage to the principal is dissolved, annulled, or declared void, unless the medical power of attorney provides otherwise. The form of Disclosure Statement for a medical power of attorney is now part of the form (rather than a separate disclosure). The disclosure statement is included for the benefit of the principal to understand they are giving their agent broad authority to make all health care decisions, including decisions about withdrawing or withholding life-sustaining treatment, and to understand the agent’s power becomes effective when the principal’s doctor certifies that the principal lacks competence to make health care decisions. The updated language is effective January 1, 2018, and is provided in Section 166.164 of the Health and Safety Code. Digital Assets In recent years, digital assets, including e-mail, electronically stored docu-
ments, social media, cell text messages, documents and photos and digital financial records, have complicated fiduciary responsibilities, estate planning and estate administration. The newly enacted Texas Revised Uniform Fiduciary Access to Digital Assets Act, found in Sections 2001.001 through 2001.232 of the Estates Code (“Revised UFADAA”) addresses timely and important issues relating to digital assets. It focuses on rights and responsibilities of fiduciaries, including personal representatives of decedent’s estates, conservators for protected persons, agents acting under a power of attorney, and trustees. The Revised UFADAA gives fiduciaries the legal authority to manage digital assets and electronic communications, and it gives custodians of digital assets and electronic communications legal authority to deal with fiduciaries of their users, while balancing and considering privacy issues.
Small Estates Section 205.001 of the Estates Code has been amended to allow a small estates affidavit, without the appointment of a personal representative for estates with non-exempt property not to exceed $75,000 (previously $50,000). Further details on legislative updates For those interested in reading the full text of the newly enacted legislation, “google” “Texas Legislature online Bill Lookup.” In the “Legislature” window enter the related legislative session, 85 (R) - 2017 (the Regular Session), and then enter the bill number in the window for bill number search. The following are the related bill numbers: • HB 1974 (Durable Powers of Attorney) • HB 995 (Medical Powers of Attorney) • HB 2271 (Decedent’s Estates)
• SB 617 (Property Code/Trusts) • SB 1193 (Digital Assets) • SB 39 and SB 511 (Guardianships) For a comprehensive and detailed review of the subject, read Make Probate Great Again. The 2017 Texas Estate and Trust Legislative Update, by William D. Pargaman, All Rights Reserved. The article may be found at the following link, www.snpalaw.com/res ources/2017LegislativeUpdate. A great deal of gratitude is due to the Real Estate, Probate & Trust Law Section of the State Bar of Texas, our Statutory Probate Judges, Legislators and their staffs for the significant, detailed and thoughtful legislative changes, which stand to be of great benefit to the public and the attorneys who serve the public. Jana Fay Bacarisse practices in the areas of probate, estate planning, guardianships, and elder law in the Houston area.
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By Rehan Alimohammad
Texas Senate Bill 4:
Sanctuary Cities O
n September 1, 2017, Senate Bill 4 (“SB 4”) took effect in Texas, subject to continuing judicial review. It subjects sheriffs, constables, police chiefs and others in violation to Class A misdemeanor charges for failure to cooperate with federal authorities and honor requests from immigration agents to detain noncitizen inmates who are subject to immigration detainers. The bill authorizes civil penalties for entities in violation of SB 4 beginning at $1,000 for the first offense and increasing to $25,500 for each subsequent infraction per day. It also subjects a person holding an elective or appointive office of the state to forfeiture of their office. Police departments, including campus police departments, will be forbidden from establishing policies, even if they are informal and unwritten, that prevent local officials from inquiring about a person’s immigration status. Summary Article 1 of the bill, which includes definitions of pertinent terms, addresses policies and actions for immi-
gration enforcement. It forbids local entities and campus police from limiting an official’s ability to (1) ask the immigration status of someone who is under lawful detention or under arrest, or (2) request or share that immigration status with U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), or another federal agency. If a person holding an elective or appointive position is found to be in violation of SB 4, that individual may be removed from office. There are, however, limits to the bill’s reach. There is an exception that applies to some institutions and peace officers who are employed by hospitals, religious organizations, school districts and other institutions. Local entities and campus police departments are also prohibited from considering race, religion, language or national origin while enforcing immigration laws, except as provided for in the Texas Constitution or U.S. Constitution. Under Article 2, a law enforcement agency that has custody of a person subject to an ICE immigration detainer request is required to comply with any request in the detainer and to inform the person that the detainment is pursuant to an ICE request. Law enforcement is not required to perform this duty if the individual in custody has provided proof of U.S. citizenship or lawful immigration status. Per Article 3, the Attorney General is directed to defend local entities in any court action involving the local entities good-faith compliance with an immigration detainer request. Surety bonds are the main focus of Article 4, the purpose of which is to deter bail bond companies from providing bonds to individuals who may be identified as not lawfully present in the United States. Article 5 makes it a Class A misdemeanor for a sheriff, police chief, constable or another person with authority to purposely fail to comply with a
detainer request, unless the individual provides proof of U.S. citizenship or lawful immigration status. Under the provisions of Article 6, officers may ask about the nationality or immigration status of a victim or witness if it is necessary to investigate an offense, or to provide the victim or witness with information about federal visas designed to protect individuals who assist law enforcement. Common examples of visas that are used in this situation are the U visa for victims of criminal activity or the T visa for victims of human trafficking. Possible Consequences on the Administration of Justice Police chiefs in major Texas cities including Dallas, Houston, Austin, Arlington, Fort Worth and San Antonio have expressed their opposition and concerns over SB 4. The implementation of this law by police officers may incite fear among immigrants who are in need of police assistance. Consequently, crimes against immigrants would likely increase and immigrants may hesitate to provide assistance to law enforcement. SB 4 also requires law enforcement to become heavily involved in enforcing federal immigration laws. On January 25, 2017, President Trump issued two executive orders stating that the executive branch of the government will empower state and local enforcement agencies in the United States to perform the functions of an immigration officer and to lawfully execute the immigration laws of the United States to the maximum extent permitted by law. The orders also state that the Attorney General shall not allow sanctuary jurisdictions to receive federal grants except as deemed necessary for law enforcement purposes. The Attorney General shall also take appropriate enforcement action against any entity that has in effect a policy or practice that prevents or hinders the enforcement of federal immigration law.
members of the public to bring civil Arizona SB 1070 vs. Texas SB 4 complaints against local jurisdictions In 2010, the state of Arizona attemptand government officials who they ed to enact a bill similar to SB 4, rebelieve to be in violation of the act. ferred to as Arizona SB 1070. The bill However, Texas SB 4 allows for comwas scheduled to go into effect on plaints to the Attorney General, while July 29, 2010. However, the day before Arizona SB 1070 only the bill was to become permitted a private law, a federal judge isPolice chiefs right of action. Similarsued an injunction that ly, while both Texas SB in major blocked many of the 4 and Arizona SB 1070 bill’s crucial provisions, Texas cities create a defense and/ including the provision or provide indemnifithat required local law including Dallas, cation for good-faith enforcement officials compliance with the to check the immigraHouston, act, under Arizona SB tion status of anyone 1070 this safe harbor Austin, suspected to be in the pertained only to indiUnited States illegally Arlington, vidual law enforcement who has been arrested officers. or detained. Fort Worth and The U.S. Supreme Several key parts of Court ultimately reArizona SB 1070 are San Antonio jected most of Arizosimilar to Texas SB 4. have expressed na’s immigration law Both bills prohibit loin Arizona v. United cal policies limiting their opposition States 567 S. Ct. 11the enforcement of fed182 (2012). The three eral immigration laws. and concerns provisions that were Both bills provide for struck down included the transfer of undocover SB 4. sections: (1) requiring umented individuals legal immigrants to carry registration convicted of state or local offenses to documents at all times, (2) allowing federal custody and also provide for state police to arrest any individual civil penalties against state and lofor suspicion of being an illegal immical officials that violate provisions of grant, and (3) making it a crime for an these acts. illegal immigrant to search for a job or However, there are also key differto hold one in the state. ences between the bills. Texas SB 4 enHowever, the majority opinion upacts criminal penalties against governheld section 2(B) of the law requiring ment officials who violate provisions Arizona state police to investigate the of the act, whereas Arizona SB 1070 inimmigration status of an individual cluded no such provision. Arizona SB stopped, detained, or arrested if there 1070 permitted the warrantless arrests is reasonable suspicion that individual of individuals who have committed a is in the country illegally. In the madeportable offense and provided aujority opinion, Justice Anthony Kenthority to state and local law enforcenedy wrote: “It was improper, however ment to transport noncitizens held in to enjoin section 2(b) before the state custody to federal authorities, even courts had an opportunity to construe when outside the local jurisdiction. In it and without some showing that encontrast, the Texas bill requires only forcement of the provision in fact conthat local government entities honor flicts with federal immigration law all ICE detainer requests. and its objectives.” Both bills establish procedures for
Pending Litigation At the moment, the fate of Texas SB 4 rests upon Judge Orlando Garcia, the Chief District Judge of the United States District Court for the Western District of Texas. The bill has resulted in intense opposition from several immigrants’ rights groups. As a consequence of the huge discord of opinions regarding this bill, there are several pending litigation cases that have been filed in Texas, including a lawsuit filed by the City of San Antonio, a lawsuit by the City of El Cenizo, and a lawsuit by El Paso County. The three lawsuits have now been consolidated into one case, under Civil Action Number 5:17-CV404-OG, before Judge Garcia. The lawsuit alleges a variety of violations including infringements upon First, Fourth, and Fourteenth Amendment rights, along with the Constitution’s Supremacy Clause. The Plaintiffs are seeking a declaratory judgment that
SB 4 in its entirety is unconstitutional. The Department of Justice filed a Statement of Interest in favor of SB 4. Supporters of the bill argue that SB 4 is constitutional and is not pre-empted by federal immigration laws. SB 4 proponents defend the legality of the bill, stating that Texas will become safer as a result of the crackdown on illegal immigration. On August 30, 2017, Judge Garcia temporarily enjoined the implementation of several provisions of SB 4. In his 94-page ruling, the Judge held that there is overwhelming evidence from local law enforcement officials that SB 4 would “erode public trust and [make] many communities less safe.” The specific provisions that were enjoined include Articles 1, 2, and 5, which forbid local entities and campus police from limiting an official’s ability to ask about immigration status and create penalties for the failure to comply. However, the
ruling did not enjoin Article 6, which allows officers to ask about the nationality or immigration status of a victim or witness if it is necessary in order to investigate an offense, or to assist the victim in obtaining a federal visa. The ultimate decision in the pending litigation will determine the future of these types of bills and may affect the introduction and implementation of similar bills in other states as well. Rehan Alimohammad is partner in charge of all Immigration and Tax Matters for Wong Fleming in their Texas office. He was the Texas State Bar Board Advisor to the Committee on Laws Related to Immigration & Nationality and the Immigration and Nationality Section from 2015-2017. He is the current Chair of the Board for the State Bar of Texas and the first immigration attorney ever to be elected chair.
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By Jesse Gelsomini and Clare Staub
New Texas Laws to Fix City of Houston’s Pension Crisis T
he City of Houston and its Mayor, Sylvester Turner, recently made national headlines for significantly reforming the City’s distressed pension systems. Prior to the reforms, the City’s three separate pension systems, which cover police officers, firefighters, and municipal employees, respectively, were collectively underfunded by an estimated $8.1 billion, with unfunded liabilities projected to grow at unsustainable rates. Both Moody’s and Standard & Poor’s cited the City’s lack of a plan to address the pension systems’ expanding unfunded liabilities as a primary reason for their decisions to downgrade
the City’s credit rating in 2016.1 The Moody’s report announcing the downgrade noted that the City’s pension deficit was among the highest in the nation. Because the rules governing each of the City’s pension systems are set out in three separate Texas statutes, reforming the pension systems required action by the Texas legislature. Without a doubt, implementing these pension reforms required a huge collaborative effort, with meaningful input coming from all relevant stakeholders, including city and state officials, representatives from the three pension systems, and the City’s business community (notably, the Greater Houston Partnership or “GHP”). The final pension reform bill, which was signed into law by Governor Abbott on May 31, 2017, is intended to put the City’s pension systems back on track by implementing a comprehensive set of reforms. Each of the major credit rating agencies indicated that the reforms would have a positive impact on the City’s credit outlook.2 Significant reforms made in the recently enacted pension reform bill include the following: (1) imposition of certain mandated actuarial assumptions and methods for determining the City’s annual required contributions, (2) prospective benefit reductions for each system, (3) prohibition against agreements between the City and the pension systems which allow the City to contribute less than the required City contribution for a particular fiscal year, and (4) introduction of an innovative risk-sharing “corridor” mechanism, whereby the City’s future contributions would be capped. However, the reforms for the police and municipal employees’ pension systems are conditioned on the issuance of $1 billion of pension obligation bonds, the proceeds of which must be contributed to these systems by the City on or before December 31, 2017, in order for the new law to take full effect. City voters will be asked to approve the issuance of these bonds in November. These additional contribu-
tions are intended to make up for past underfunding by the City that resulted from certain “meet and confer” agreements between the City and the pension systems, as discussed below. Reasonable Actuarial Assumptions and Methods One particular problem plaguing the pension systems is that unrealistic actuarial assumptions and methods were being used to determine liabilities and contribution rates, which resulted in the City’s annual required contributions to the pension funds being understated year after year. For example, the discount rates (equal to the expected rate of return of the funds’ assets) used to value the pension systems’ liabilities varied from 8% to 8.5% before pension reform, even though those rates of return had not been consistently achieved by the pension funds during recent years.3 Additionally, the City’s pension systems have historically used an
open (or “rolling”) 30-year amortization method for recognizing actuarial gains and losses for purposes of determining a particular year’s minimum required contribution. Under this method, the pension systems’ unfunded liabilities were expected to grow each year, even if the City contributed the full minimum required contributions. As part of the pension reforms, certain actuarial assumptions and methods are now hard-wired into the statutes governing the pension systems. For example, the maximum expected rate of return (and discount rate) that may be used to determine the City’s contribution rate is now 7%. Additionally, any actuarial gains or losses must be amortized using a 30-year closed amortization method. This change in method means that the unfunded pension liabilities as of June 30, 2016, will be fully funded by 2046, as opposed to remaining unfunded indefinitely under the open amortization method. Essentially, these
pension reforms provide a more realistic framework to allow for the City’s pension systems to become fully funded within a finite period. Obviously, for the City and its citizens, these changes represent a substantial improvement over the pre-reform regime. Benefit Adjustments The City’s pension reforms also included prospective benefit reductions for each of the three pension systems, as well as increased contribution requirements for most active members. These changes, which took a variety of forms in each of the pension systems, resulted in a significant reduction in unfunded liabilities.4 Incident to making these cuts, no member’s base pension benefits that were already accrued before July 1, 2017, were reduced. However, future cost-of-living adjustments for most members (both current and former employees) were reduced. In addition to changes in benefit formulas and
eligibility provisions, there were also significant changes to the “deferred retirement option plan” under each of the pension systems. Collectively, these changes should result in more manageable growth in future liabilities for the pension systems. Meet & Confer Provisions Limited The prior versions of the statutes for the police and municipal employees’ pension systems had given the City and the pension systems very wide latitude to enter into agreements to make changes to benefits and contributions. By utilizing these so-called “meet and confer” provisions, the City was permitted to contribute less to the pension systems than the actuarially determined minimum required contributions. This systemic underfunding directly contributed to the City’s looming pension crisis. Under the pension reform statutes, no agreement between the City and the pension systems may cause the City to contribute less than the minimum required contribution determined under the rules prescribed by the statutes. In other words, the City will no longer be permitted to defer payment of required contributions into future years. This change was critical to stabilizing the pension systems. Risk Sharing Provisions In addition to the more straightforward and “traditional” reforms discussed above, the pension reform statutes also introduced an innovative risk-sharing “corridor” provision, which is designed to stabilize the City’s contributions in response to changing economic circumstances. In general terms, the risk sharing provision requires the City’s contributions to the pension funds (stated as a percentage of pensionable payroll) to remain within 5% (i.e., the “corridor”) of the projected contribution rate for that year. For this purpose, each statute requires the City’s and respective pension system’s actuary to independently determine a projected contribution rate 28
for each of the next 30 years based on an actuarial valuation performed as of June 30, 2016. There are specific rules outlined in the statutes for resolving any differences in the actuaries’ calculations. If the City’s actual contribution rate for a particular year (as determined by an updated valuation using current data, assumptions, methods and plan provisions) is projected to be outside the corridor, then certain prescribed adjustments (including benefit adjustments and changes to member contributions) are made until the City contribution is back within the corridor. For example, if the projected contribution rate for fiscal year 2020 was 35%, and an updated valuation set the 2020 contribution rate at 41%, then adjustments must be made to the funding results until the City contribution rate is back within the corridor (e.g., by increasing members’ contributions). Conversely, if the actual 2020 contribution rate is determined to be 29% instead of 41%, certain adjustments would be made to increase the City’s contribution rate (e.g., by reducing members’ contributions). Essentially, the risk sharing provision is intended to limit the City’s risk that required contributions to the pension systems to possibly spiral out of control in future years. Under this provision, members are at risk of having their benefits reduced or members’ contributions increased if their pension system’s experience is significantly worse than expected (e.g., if asset returns are significantly less than 7%). However, members are also eligible for benefit increases and reduced member contributions if their pension system’s experience is significantly better than expected. An additional “protection” built in to the pension reform statutes is that, if a pension system’s funded status is below a specified level during any fiscal year after fiscal year 2021, newly-hired employees in such pension system will automatically participate in a cash balance plan in lieu of participation in the tradi-
tional final average pay plans currently in effect under the pension systems. Cash balance plans are considered “hybrid” defined benefit pension plans because they contain many features of defined contribution plans (such as a 401(k) plans), and, as such, generally present less risk to the plan sponsor than does a traditionally defined benefit pension plan. Assuming that the City’s voters approve the issuance of pension obligation bonds in November, the changes made by these pension reform statutes will lead to more sustainable pension systems for the City’s police, firefighter and municipal employees and retirees, as well as for the City’s taxpayers. These comprehensive reforms will protect the pension benefits that have been promised to members, while also providing a new layer of financial stability to the City, both currently and in the future as the City’s growth continues. Jesse Gelsomini and Clare Staub are attorneys in the ERISA, Employee Benefits and Executive Compensation Section at Haynes and Boone, LLP in Houston. Haynes & Boone, LLP was engaged by the Greater Houston Partnership to review the legislative bills for the pension reform statutes and provide comments to the GHP for incorporation into the final legislation. Endnotes 1. See Moody’s Downgrades Houston’s (TX) GOLT to Aa3; Maintains Negative Outlook, available at https:// www.moodys.com/research/Moodys-downgradesHoustons-TX-GOLT-to-Aa3-maintains-negativeoutlook—PR_903168652 (Mar 16, 2016); see also Houston Undaunted by Downgrades Ahead of $600M Deal, available at http://www.houstontx.gov/control ler/20160321.html (Mar 21, 2016). 2. See Houston Pension Solution Draws Positive Reviews from Credit Ratings Agencies, available at http://www. houstontx.gov/mayor/press/pensions-positive-cred it-ratings.html (Jun 21, 2017). 3. See, e.g., Houston Police Officers’ Pension System Actuarial Valuation Report for the Year Beginning July 1, 2016, available at https://www.hpops.org/publica tions/actuarial-valuation/. 4. Initial estimates were that the reduction in benefits would result in a $2.54 billion reduction in unfunded liabilities. See Presentation to the State Pension Review Board of Texas, available at http://www.hous tontx.gov/pensions/public/documents/PRB_Presentation.pdf (Jan 26, 2017).
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By The HON. Terry Jennings
The ‘Friendly First,’ Texas’s First Court of Appeals, 1892 – 2017
or 125 years, Texas’s First Court of Appeals has endured and thrived during times of peace and war, political and social progress and strife, economic booms and recessions, and fair weather and foul—from the Great Galveston Hurricane of 1900 to Hurricane Harvey of 2017. Through it all, the staff, attorneys, and justices of the Court have worked diligently and faithfully to administer justice without fear or favor. As Stanley E. Babb of the Galveston Daily News wrote in 1929, “Thousands and thousands of cases have been argued, discussed, deliberated, and mediated within [the Court’s] walls, representing all phases of human behavior and experience.”1 And the bar has made significant contributions to the Court’s history, “Many of the ablest lawyers in Texas have displayed their foremost abilities and their capacities for unraveling the Gordian knots of complicated and difficult legal problems in [its] historic old building[s].”2 Over the years, the Court, with its user friendly philosophy, be-
came known as the “Friendly First,” with justices forming strong personal bonds with each other and staff, and strong professional bonds with members of the bar, in their mutual endeavor, even in disagreement, to “get it right” in their cases. The Birth of the Court After Texans approved a constitutional amendment in 1891, the legislature, in a special session in 1892, established the Courts of Appeals for the First (Galveston), Second (Fort Worth), and Third (Austin) Supreme Judicial Districts of Texas to help alleviate a serious backlog in the Texas Supreme Court. Each district had jurisdiction in civil appeals geographically over approximately one third of the state, with the First Court covering 57 counties. The legislature’s decision to locate the Court in Galveston was based, as were all its subsequent decisions in locating the intermediate court of appeals, on pure political whim. “It has always been my understanding,” recalled Henry Garrett, the Court’s clerk in 1929, “that the selection of Houston for the  state [Democratic] convention had a strong influence in the selection by the legislature for Galveston for the location of the [First Court], many of the legislators saying, ‘Well, Houston got the convention, let’s give Galveston the court.’”3 In 1892, the state of Texas was only 47 years old. Jim Hogg was governor, Benjamin Harrison was president of the United States, and Victoria was the Queen of England. And the First Court, consisting of Chief Justice Christopher Columbus Garrett, Justices H. Clay Pleasants and Frank Williams, and Clerk S. D. Reeves, opened its first term in Galveston on Monday, October 3.4 It issued its first published opinions just nine days later on October 11, 1892, concerning a passenger’s wrongful ejection from a train,5 an appeal from a district court’s grant of a petition for a writ of mandamus brought by a newly elected county attorney,6 and the parole evidence rule.7 The opinions vary in length from two to six pages. The Move to Houston From 1892 to 1957, the Court’s first home was the renovated 1878 Galveston County Jail, located at 20th and Winnie Streets. From the beginning, the Houston Bar looked upon the Court with envious eyes, and it made several unsuccessful attempts to have the Court moved to Houston. Finally, in 1957, Hurricane Audrey damaged the beautiful old red brick, with white limestone trim, building. And Chief Justice Gaius Gannon petitioned the legislature to move the Court to Houston to the Harris County Courthouse. The legislature expanded the First Court to six justices in 1978, and, due to overcrowding, the new justices and their staffs moved to the Citizens Bank Building at 402 Main Street. Their stay there was short lived, due to malfunctioning elevators, no central air conditioning, falling plaster, and an infestation of grasshoppers.
Chief Justice Frank Evans then began to work in earnest to find a new home for the Court and its younger sister, the Fourteenth Court of Appeals, which the legislature had created in 1967. The South Texas College of Law and Harris County Commissioners Court came to the rescue. The Commissioners agreed to pay for the construction of three additional floors on top of a building that the law school had previously planned, and the law school agreed to lease the space back to the courts for 99 years. The deal was timely struck as the legislature, in 1981, added three new justices to each court, who were first elected in 1982. In 1983, the courts moved into the new space on the eighth, ninth, and tenth floors at 1301 San Jacinto, where they enjoyed a felicitous relationship with the law school that continues through today. As the Houston area grew in population, so did litigation and the demands on the First and Fourteenth Courts. Over time, the legislature reduced the number of counties in their jurisdiction to ten. And although the justices and staff enjoyed the camaraderie that came with working in close quarters at the law school, the courts, with a growing staff, simply ran out of room. Again, the Harris County Commissioner’s Court came to the rescue. Following the construction of the new Criminal Justice Center and Civil Courthouse, space became available in the old Harris County Courthouse. And under the leadership of Chief Justices Sherry Radack and Adele Hedges, the courts moved into their newly renovated home in 2011. There, Chris Prine, the Clerk of both courts, has worked to bring the courts into the 21st Century, instituting the electronic filing of all documents.
The First Court of Appeals was located in Galveston from 1892-1957. File photo courtesy of the Rosenberg Library, Galveston, TX.
The Hon. Robert A. Pleasants served as a Justice on the First Court of Appeals from 1899-1907, then as Chief Justice from 1907 until 1938. File photo courtesy of the Rosenberg Library, Galveston, TX.
The Hon. Henry E. Doyle, appointed to the First Court of Appeals in 1978, was the first black man to serve as an appellate court justice in Texas. Photo of his portrait from the 1910 Courthouse.
First Court of Appeals Justice Camille Hutson-Dunn in 1985 was the first woman elected to an appellate court in Texas. Portrait, painted by her daughter, from the 1910 Courthouse.
Members of the Court There was little change on the First Court when it was in Galveston. The Court consisted of three judges, all white men, who served long, secure tenures. Justice George Graves served on the Court from 1917 to 1955 – 38 years, the longest tenure of any justice on the Three generations of appellate justices. From left: Hon. Murry B. Cohen, 1st Court Justice, Court, spanning the two world wars and then some. 1983-2002; Hon. Charles W. Seymore, 14th Court Justice, 2001-2012; Eileen Wilson, briefing attorney for Justice Smith, 1985-1986; Hon., Jackson B. Smith, First Court Justice, 1981-1988; Chief Justice Robert Pleasants served for 31 years, Mrs. Myrtle Smith; Hon. Terry Jennings, 1st Court Justice, 2001 – present; and Cathy Smith, from 1907 to 1938. And Henry Garrett served as the research attorney for Justice Smith, 1986-1989. Photo courtesy of Justice Jennings. Court’s Clerk from 1908 to 1947, 38 years. and went from being the Courts of Civil Appeals to the Courts of Recently, most justices have served between one and two Appeals, with criminal law jurisdiction.” And the acquisition of terms, or at most three, between six and 18 years. And life on jurisdiction in criminal cases required team work: the Court in Houston has been dynamic, with many significant Most First and Fourteenth Court justices in 1983 were almost changes occurring in the 1980s and 1990s. As noted by former totally inexperienced in either civil or criminal law. There were Justice Murry Cohen, “My generation on the First Court, 1983 some difficult moments, but the learning curve was remark2002, saw big changes. 1982 was the first election after the First able; justices with no criminal law background were soon and Fourteenth Courts were enlarged from three to nine justices writing leading opinions in criminal cases, and vice versa. The thehoustonlawyer.com
collegiality of the court speeded that process. Moreover, as America progressed politically and socially, so did the First Court. In 1978, Governor Dolph Briscoe appointed to the Court, Henry Doyle, the first black man to serve as an appellate court justice in Texas. In 1982, two Jewish justices were elected, Ben Levy and Murry Cohen. Justice Camille Hutson Dunn, in 1985, was sworn in as the first woman elected to a Texas appellate court. In 1991, Governor Ann Richards named Alice Oliver Parrott the first woman chief justice in Texas. And in 1993, the First Court appointed Margie Thompson as the first black woman clerk of an appellate court in Texas. Thompson, known for her broad smile and can do attitude, continued the user friendly policy of her predecessor, Kathryn Cox, that earned for the Court the nickname of the “Friendly First,” coined by Justice Lee Duggan. Thus, the First Court has in many ways been “first” in making progress in Texas. Today, sadly, both the First and Fourteenth Courts are lacking in racial diversity. Women, however, have, in recent years, constituted a majority of both of the courts. Since Texas’s first all woman appellate court panel, with Chief Justice Oliver Parrott and Justices Hutson Dunn and Margaret Mirabal, met and heard oral arguments in 1991, all woman panels now meet regularly in both courts. And the vast majority of staff attorneys and clerical staff on both courts consist of women. Changes on the Court The life of the Court has spanned the tenure of 28 governors and 23 presidents, and the reign of six British Monarchs. Since the 1980s, one of the few constants on the Court has been change. The Court is technologically up to date, and several justices read almost everything on computer monitors. It has moved from deciding cases less on the common law and more on statutory interpretation. Court opinions average between 20 to 25 pages in length, and it is not uncommon in complex cases for an opinion to be 60 to 100 32
pages long. And although its justices each author between 60 to 80 opinions per year, most appeals in civil cases are not from judgments after a jury trial. With the rise of arbitration, it is often said that jury trials are vanishing in civil matters. Camaraderie on the Court Happily, another constant on the Court are the strong relationships that form between the justices and their staffs, many of which, because of their shared commitment to their life’s work, last for life. As noted by Justice Mirabal, “My first job out of law school was as a law clerk at the First Court for Justice Frank G. Evans, who served with Chief Justice Tom F. Coleman and Justice Phil Peden. I learned more in that one year at the Court than I learned in three years of law school.” She was elected to the Court 13 years later. She adds, “I cherish my 14 years as a Justice on the First Court of Appeals, where I worked with the other dedicated justices and court staff to provide fair and impartial appellate review of the rulings from the trial courts.” After I was elected to the Court in 2000, Justice Cohen, describing our job as “the best in the world,” was kind enough to act as my judicial mentor. And I had the opportunity to work with retired First Court justices like Frank Evans, Lee Duggan, and Jack Smith—all part of America’s greatest generation—who had come back to the Court on a special task force to help eliminate a backlog of cases. I immediately noticed something special about these justices. As explained by Justice Cohen: Many early colleagues had served in World War II or the Korean War. None discussed combat experiences with me, but they often talked about funny and fascinating things they had seen and done in military service. To several, including Jack Smith who was like a second father to me, it was the most important experience of their lives. These justices brought their life experience with them to the Court, and they had a profoundly positive effect on every-
one that they worked with that is still felt today. It is not uncommon for current and former First Court justices to regularly meet with former law clerks and staff attorneys to bond and share fond memories of justices like Jackson B. Smith. To illustrate the point, in December 2015, Justice Cohen invited me and several friends over to his home, which his parents had built in 1964, to celebrate his 70th birthday with his wife Meryl. They had just finished refurbishing their home after the Memorial Day Flood in 2015. It was a beautiful evening at which Justice Cohen toasted the Constitution and Justice Smith, as is our custom, and handed out awards. My award was for “Oldest Friend in Terms of Joint Judicial Service.” For a present, I gave him a copy of Melvin Urofsky’s biography of Louis Brandeis. When the party was over, we spoke outside his house in the crisp air under a star lit sky about the flood and how difficult it had been to repair the house and get everything back in order. On August 27, 2017, I received a text from Justice Cohen stating that Hurricane Harvey had destroyed “the Old Cohen Place”; “[e]verything is lost. And we will not return.” He later added that one of the things that he took with him as he left his house was the book that I had given him. Such are the human bonds upon which the history of the First Court of Appeals is built. As long as there are men and women in Texas who, even in disagreement, share a commitment to justice and the rule of law, may there ever be the First Court of Appeals, Texas’s “Friendly First.” The Hon. Terry Jennings is the Senior Justice on the First Court of Appeals. Endnotes
1. Stanley E. Babb, Ghost Once Haunted Old Court Building, Soon to be Razed, GALVESTON DAILY NEWS, March 3, 1929, at 7. 2. Id. 3. Id. 4. Assisting the Court were Charles V. Johnson, deputy clerk, and J.E. Harmon, stenographer. 5. Kan. & Gulf Short Line R.R. v. Scott, 20 S.W. 725 (Tex. Civ. App.—Galveston 1892, no writ) (cause no. 2). 6. Luckey v. Short, 20 S.W. 723 (Tex. Civ. App.—Galveston 1892, no writ) (cause no. 4). 7. Todd v. Roberts, 20 S.W. 722 (Tex. Civ. App.—Galveston 1892, no writ) (cause no. 7).
By The Hon. Kem Thompson Frost
The Fourteenth at Fifty:
Poised for Change, Prepared for Challenge, and Pointed Toward the Future
hen newcomers to Houston discover the city is home to two of Texas’s fourteen intermediate courts of appeals, they naturally ask, “Why two courts instead of one?” The unusual concept—unique to Texas—finds roots in the origin of the Fourteenth Court of Appeals. In the 1960s, Houston’s First Court of
Appeals consisted of a chief justice and two associate justices.1 The three-judge court needed relief from a heavy and growing backlog of appeals. But adding more judges posed a problem because, at the time, the Texas Constitution limited the size of intermediate appellate courts to three judges.2 Texas lawmakers wanted to help, but they could not add more judges without a time-consuming amendment to the state constitution. Their solution was to create a new three-judge court for the Houston area—the Fourteenth Court of Appeals—with the same geographic jurisdiction as the First Court of Appeals.3 Born of necessity rather than design, the Fourteenth drew its first breath on September 1, 1967.4 This year we celebrate the Fourteenth’s fiftieth birthday. A look back at the last half-century reveals big changes not only in the court’s size, location, and jurisdiction but also in its judicial makeup, systems, and processes. Technological advances have improved the court’s efficiency and enhanced its operations. Yet, the last five decades also have presented challenges that force us to consider how problems inherent in the shared-jurisdiction model are impacting the jurisprudence and the delivery of justice in the First-Fourteenth District. Changes in Size As Houston has grown so has the size of its appellate bench. In 1978, Texans amended the state constitution to lift the restriction on the number of justices on intermediate appellate courts.5 The Texas Legislature then increased the count on both Houston courts from three to six, authorizing justices to sit in panels of no fewer than three. Three years later, the Legislature again expanded the size of the First and Fourteenth, this time to nine justices each.6 Changes in Subject-Matter Jurisdiction Until 1981, all criminal appeals went directly to the Court of Criminal Appeals of Texas. In 1980, Texans amended the state constitution to give intermediate appellate courts jurisdiction over criminal appeals.7
All Courts of Civil Appeals (as they were known then) became Courts of Appeals.8 Adding criminal jurisdiction nearly tripled the court’s yearly opinion count. Other surges in subject-matter jurisdiction further increased the court’s workload (and staff size). Over the years, the Legislature has created a series of interlocutory and accelerated appeals,9 and the Supreme Court of Texas has expanded the scope of mandamus review. These changes have swelled the number of cases the court must handle on an expedited basis.10 With each change, the Fourteenth has developed protocols to ensure speedy decisions for the short-fuse cases, a challenging task given the expanding categories of accelerated appeals in recent years. Changes in Geographic Jurisdiction Originally the Fourteenth’s geographic jurisdiction included fourteen counties. In 2003, the Legislature decided that Brazos County, which had been in both the First-Fourteenth District and the Tenth District (based in Waco), should be in just one courtof-appeals district and cut it from the First-Fourteenth’s shared jurisdiction. Two years later, the Legislature moved three other counties—Burleson, Trinity, and Walker—from the First-Fourteenth District to the Ninth District (based in Beaumont), leaving the First and Fourteenth with jurisdiction over ten counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington.11 Though based in downtown Houston, the Fourteenth seeks opportunities to strengthen the court’s presence throughout the jurisdiction. Panels hear oral arguments across the district. The “road show” takes extra planning and personnel, but brings a measure of appellate process to places that might not otherwise get to experience it firsthand. Members of the Court Forty-six individuals (including sitting justices) have served on the Fourteenth, three of them as both an associate justice and as chief justice. The longest-serving—J. Curtiss Brown—took his seat as an associate justice in 1973 and retired as chief justice in 1995. The shortest-serving elected justice—Gary C. Bowers— took office in 1993 and died the same year. Several of the Fourteenth’s justices went on to serve on the Supreme Court of Texas (Samuel D. Johnson, Jr., Harriet O’Neill, Scott Brister, Eva Guzman, and Jeff Brown) or in the federal judiciary (Samuel D. Johnson, Jr. and George E. Cire), or both. With 18 sitting justices on Houston’s two courts of appeals, even seasoned appellate practitioners struggle to keep the rosters straight, often quipping, “only 18 people know which judges are on which court.” Two justices—Adele Hedges and Scott Brister—spent time on each court, first as associate justices on the First and then as chief justices of the Fourteenth. The Fourteenth’s first chief justice— Bert H. Tunks—served from 1967 to 1975. Five others followed: J. Curtiss Brown (1976-1995), Paul C. Murphy (1995-2001), Scott 34
Brister (2001-2003), Adele Hedges (2003-2013), and Kem Thompson Frost (2013-present). Clerks of the Court Six individuals have served as Clerk of the Fourteenth: Richard Tisdale (1967-70), Thelma Mueller (1970-81), Claudine Parten (1981), Mary Jane Smart Gay (1982-2000), and Ed Wells, Jr. (20002007). The current clerk—Christopher Prine—holds the position for both the First and the Fourteenth. “Firsts” in the Fourteenth Felix Salazar, Jr., appointed in 1978, became the first and only Latino to serve on the Fourteenth. Eva Guzman, who joined the Fourteenth in 2001, became the first and only Latina to sit on the court. Appointed in 1994, Patrice Barron became the first woman to serve on the Fourteenth. The same year Leslie Brock Yates and Wanda McKee Fowler became the first women elected to the Fourteenth. (Justice Yates took office first.) Nine years later, Adele Hedges became the Fourteenth’s first female chief justice. At times more women than men have occupied the Fourteenth’s judicial seats. Justice Yates recounts the time a seasoned gentlemen-advocate appearing for oral argument looked up from the podium to discover that women filled every other seat in the courtroom—the opposing advocate, the court’s attorneys and law clerks, and the three judges—all women. “When did this happen?” he asked. “The People’s Court” Local legal historian Judge Mark Davidson dubs the Fourteenth “The People’s Court” in recognition of two election sweeps that fundamentally changed the court’s judicial makeup, first in 1982 (when the people swept in Democrats) and again in 1994 (when the people swept in Republicans). Notable Cases In fifty years, the Fourteenth has produced 45,265 opinions and disposed of 46,241 appeals.12 Some have made their way to the Supreme Court of the United States. The most famous culminated in the landmark decision in Lawrence v. Texas. In 2001, the en banc majority of the Fourteenth affirmed convictions of two men convicted of violating Texas’s antisodomy statute.14 The Court of Criminal Appeals declined review. Directly reviewing the Fourteenth’s decision, the nation’s high court concluded that the Texas statute violated the Fourteenth Amendment’s Due Process Clause. Overruling its own 1986 precedent in Bowers v. Hardwick, the Supreme Court changed the law and so reversed the Fourteenth’s decision, but not before saying that the Fourteenth decided the federal constitutional issues properly under then-existing law.15 Other United States Supreme Court opinions in civil and criminal appeals originating in the Fourteenth include: • Windward Shipping (London) Ltd. v. American Radio Ass’n, AFL-CIO, 415 U.S. 104 (1974)
• Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981) • Kaupp v. Texas, 538 U.S. 626 (2003) • Salinas v. State, ___ U.S. ___, 133 S.Ct. 2174 (2013) • Water Splash, Inc. v. Menon, ___ U.S. ___, 137 S.Ct. 1504 (2017) Locations of the Court The Fourteenth has moved locations three times, all within downtown Houston. At its inception, the court heard arguments in a then-first-floor courtroom at The first three justices of the Fourteenth Court of Appeals: Justice John M. Barron, Chief Justice the court’s present location. Justices and staff worked Bert Tunks, and Justice Samuel D. Johnson, Jr. Photo courtesy of Sam Johnson, son of Justice Johnson. nearby. In 1983, both the First and Fourteenth moved to the South Texas College of Law building, where they operated for the next 28 years. Today, the Fourteenth makes its home in the south side of the exquisitely restored Harris County 1910 Courthouse— a true palace of justice that combines the beauty of majestic courtrooms and historic surroundings with functional office space. System Advances and Changes in Technology Hon. J. Curtiss Brown was the longestHon. Eva Guzman, now a Texas Supreme Court In the Fourteenth’s early days and even into the 1980s, serving justice on the Fourteenth Court of Justice, was the first and only Latina justice Appeals, serving from 1973 until to serve on the Fourteenth Court of Appeals, judges wrote out draft opinions in longhand. For he retired as Chief Justice in 1995. joining the court in 2001. Photo courtesy of years the designated author would circulate a single Photo of his portrait from the 1910 Courthouse. Justice Guzman. draft to other panel members one at a time, in order of seniority. Panel members would handwrite edits and circulate proposed revisions the same way. Everyone would share one record. This time-consuming process slowed the court’s pace and drained its resources. Word processors and computers brought gradual improvements, but the big changes came after Justice J. Harvey Hudson (1995-2007) joined the Fourteenth. An innovator with tech know-how and keen insight on how things ought to work, Justice Hudson put together a program and application for circulating draft opinions electronically so that judges could read, edit, Current and former justices of the Fourteenth Court of Appeals gathered for a photo at the Sepand vote on their computer screens. The new system tember 12th anniversary celebration of the First and Fourteenth Courts. Front row, from left: Former Justice Scott A. Brister; Chief Justice Kem Thompson Frost, Justice William J. Boyce. launched a new paradigm and served as the prototype Back row, from left: Former Justice Richard Edelman, Former Justice Wanda McKee Fowler, for other courts. Under the leadership of then-Chief Former Justice Leslie Brock Yates, Justice Tracy Christopher, Justice Marc W. Brown, Former Justice Sharon McCally, Former Justice Jeff V. Brown, Former Justice Eva Guzman, Justice. Justice Adele Hedges, the Fourteenth ushered Texas Ken Wise, Justice J. Brett Busby, Justice Kevin Jewell, and Justice John Donovan. Current courts of appeals into a new electronic environment, justice not pictured: Justice Martha Hill Jamison. Justice Eva Guzman and Justice Jeff Brown paving the way for the state’s Texas Appellate Man- currently serve on the Supreme Court of Texas. leaner, greener, practically paperless operation and enable justices agement E-Filing System, known as “TAMES,” now operated by and staff to complete the opinion-writing-and-approval process in the state’s Office of Court Administration. a fraction of the time it used to take. The changes have revolutionToday, the Fourteenth’s justices and staff access briefs and eviized the way the court processes appeals. dence with the stroke of a key. Links to electronic records and cited legal authorities make access to the facts and the law nearly Preserving Tradition amid Changes in Structure and Staffing effortless. Justices circulate draft opinions and comment on one This year the Fourteenth bid farewell to its last briefing attorneys. another’s proposed edits electronically, accessing court computSince the court’s inception, first-year lawyers have served as briefers from work or home. These technological advances make for a thehoustonlawyer.com
ing attorneys (law clerks) to justices, fulfilling a one-year commitment to the court before taking a permanent position with a law firm, company, or public-sector entity. Increased legislative funding has enabled courts gradually to replace one-year, freshout-of-law-school positions with permanent staff positions, filled by more experienced attorneys who can bring greater efficiency and expertise to the court’s work. Still, judges viewed the briefing-attorney program as an important experiential-learning opportunity for new lawyers and did not want to abandon this longstanding tradition. Preserving it in a new way, the Fourteenth now channels its mentoring efforts and energy into a dynamic judicial internship program. Focused on equipping law students for their professional journeys, justices host “chambers chats” and engage interns through roundtable discussions, conferences, and educational sessions designed to build practice skills and foster professionalism. The First and Fourteenth work together to provide both courts’ interns with opportunities to observe trial and appellate courts in action. Students interact with judges and staff on a range of assignments. With this close attention to professional development, students emerge from the internship better prepared to begin their legal careers. More importantly, they leave the courts knowing the value of strong mentorship. First-Fourteenth Combined Efforts In recent years, the First and the Fourteenth have pooled resources to achieve greater efficiencies in court management and operations. Today, in addition to sharing a courthouse, an intake window, and an internship program, the two courts share some personnel and an exceptional court clerk, Christopher Prine, who oversees both courts’ day-to-day operations in the ten-county jurisdiction. By joining forces, the First and Fourteenth have boosted court safety and security, enhanced employee training, and increased educational opportunities for the courts’ professional staffs. Likewise, working collaboratively alongside bar associations and other groups, the two courts have implemented userfriendly procedures and improved public access to court records and information. Challenges for the Future In reflecting on the past, we also ponder the future, recognizing the challenges that lay ahead. Like courts of appeals throughout the state, the Fourteenth must continue to improve access to justice, balance open-courts issues with privacy concerns, keep up with technological advancements, and ensure a timely and wellreasoned judicial product. But, the Houston courts of appeals face an extra challenge—one that arises from their shared jurisdiction and impacts both the jurisprudence and the delivery of justice. Neither the First nor the Fourteenth is bound by the other’s precedent. Because the two independent courts share judicial power in a single ten-county region, when they come down on different sides of a legal issue, people and trial courts in the dis36
trict ostensibly must obey two different yet equally binding rules. The law does not command a single result, so vertical stare decisis disappears. The loss makes the law unpredictable in split-of-authority cases. As the courts’ jurisdiction, size, and caseloads have grown, so, too, have the conflicts in the jurisprudence. The splits in authority create doctrinal ambiguity, bring greater costs and uncertainty to the appellate process, and produce disparate outcomes in the shared jurisdiction. Though the problem has not gone unnoticed, it has gone unfixed. And, with each passing year it creeps closer to center stage, relentlessly reminding us that the rule of law is best served when litigants in like circumstances are treated alike. The challenge for the future is to find a way to restore the lost benefits of stare decisis so that the law will be more predictable in the First-Fourteenth District. Many say the answer is to combine the two courts. For years members of the legal profession and community groups have advocated just that. Former Supreme Court of Texas Justice Scott Brister, who served on both the First and the Fourteenth before taking a seat on the state’s high court, says a merger would improve court administration, lower costs, and put an end to “practicing law on a guess and a gamble.”16 Others emphasize the need to free trial courts from interpretive problems in split-of-authority cases and give practitioners and litigants a greater measure of certainty.17 Merging the courts would accomplish all these objectives and restore the predictability that is so essential to our rule-of-law system. Through five decades of transformative change, the Fourteenth has emerged a more efficient court, committed to building on a strong legacy of public service and resolute in delivering justice through adherence to the rule of law. At fifty, the Fourteenth stands poised for change, prepared for challenge, and pointed toward the future. The Hon. Kem Thompson Frost is the Chief Justice of the Fourteenth Court of Appeals. Endnotes 1. See TEX. CONST. art V, § 6 (amended 1978, 1981, 1985, 2001). 2. See id. 3. See Act of May 29, 1967, 60th Leg. R.S., ch. 728, §§1, 2, 3, 1967 TEX. GEN. LAWS 1952, 1952-54. 4. See id. 5. See TEX. CONST. art V, § 6 (amended 1981, 1985, 2001). 6. Act of May 31, 1981, 67th Leg., R.S., ch. 291, § 31, 1981 Tex. Gen. Laws 761, 777. 7. See TEX. CONST. art V, § § 5, 6 (amended 1985, 2001). 8. See id. 9. See Elizabeth Lee Thompson, Interlocutory Appeals in Texas: A History, 48 ST. MARY’S LAW JOURNAL 65 (2017) (detailing history of statutory authorization for interlocutory appeals). 10. See id at 112–13. 11. See TEX. GOV’T CODE ANN. 22.201 (West Supp. 2010). 12. Provided by the Texas Office of Court Administration, this data is as of July 31, 2017. 13. Lawrence v. State, 41 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (en banc), rev’d, Lawrence v. Texas, 539 U.S. 558 (2003). 14. Lawrence v. Texas, 539 U.S. 558, 578 (2003). 15. Id. at 563. 16. See Scott Brister, Is It Time to Reform Our Courts of Appeals? HOUS. LAW., Mar.-Apr. 2003, at 22, 26. 17. Andrew T. Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 ST. MARY’S L.J. 417 (2006) (condemning Texas jurisdictional overlaps for creating uncertainty about controlling legal authority
First and Fourteenth Courts of Appeals Celebrate Milestones “Commemorating a Commitment to Justice” was a special gathering of the legal community as part of the anniversary celebration honoring the First and Fourteenth Courts of Appeals on September 12 at the 1910 Courthouse. Thanks to the sponsorship of the HBA Appellate Practice and Litigation Sections, chaired by Hon. Wanda McKee Fowler and Darwin “D.J.” Seidel, respectively, and the support of the
Historical Committee, the event was both educational and festive. The presentations by current and former justices of both courts were exceptional and skillfully delivered with the right balance of nostalgia and humor. All enjoyed the reception that followed. The CLE portion of the program will be posted on the HBA Historical Committee website.
Chief Justice Sherry Radack of the 1st Court of Appeals and Chief Justice Kem Thompson Frost of the 14th Court of Appeals.
1st Court of Appeals Justice Jane Bland and former 1st Court of Appeals Justice Elsa Alcala, now a justice on the Texas Court of Criminal Appeals.
1st Court of Appeals Justice Russell Lloyd and former 14th Court of Appeals Justice Eva Guzman, now a Justice on the Supreme Court of Texas.
Former 14th Court of Appeals Justice Richard H. Edelman and Former 14th Court of Appeals Justice Wanda McKee Fowler.
14th Court of Appeals Justice William J. Boyce, former 14th Court of Appeals Justice Leslie Brock Yates, 14th Court of Appeals Justice Kevin D. Jewell, and former 14th Court of Appeals Justice Wanda McKee Fowler.
14th Court of Appeals Justice Tracy Christopher, 14th Court of Appeals Justice John Donovan, former Court of Appeals Staff Attorney Alene Ross Levy, and former 215th District Judge Levi J. Benton.
14th Court of Appeals Justice Marc W. Brown, former 61st District Judge Erin Lunceford; 14th Court of Appeals Justice Brett Busby, and Houston Bar Association President Alistair Dawson.
14th Court of Appeals Justice Marc W. Brown, Texas Court of Criminal Appeals Justice Kevin Yeary, and 14th Court of Appeals Justice Ken Wise.
1st Court of Appeals Justice Michael C. Massengale, 1st Court of Appeals Justice Terry Jennings, and 1st Court of Appeals Chief Justice Sherry Radack.
Eric Mettenbrink of the HBA Historical Committee, with Greg Hasley and Jennifer A. Hasley, Chair of the HBA Historical Committee.
Former 1st Court of Appeals Justice Margaret Garner Mirabal and former 14th Court of Appeals Justice Ross A. Sears.
Former 14th Court of Appeals Justice Don Wittig and former 14th Court of Appeals Justice Charles W. Seymore.
Former 1st Court of Appeals Justice Rebeca Huddle and 1st Court of Appeals Chief Justice Sherry Radack.
Help After Harvey For direct access to any of the links in this resource guide, visit hba.org/Harvey If You Need Help After Hurricane Harvey Financial Assistance The Houston Bar Foundation has set up a Disaster Relief Fund to assist attorneys in need who have been impacted by Hurricane Harvey. To apply for assistance, please send a letter to the Houston Bar Foundation (1111 Bagby, FLB 200, Houston, TX 77002), with a description of your needs. For more information, contact Kay Sim at 713-759-1133 or firstname.lastname@example.org. If you would like to donate to the Hurricane Harvey Attorney Relief Fund, visit hba.org/harvey or send your check payable to the Houston Bar Foundation to 1111 Bagby St., FLB 200, Houston, TX 77002, with Hurricane Harvey Relief in the memo line. Temporary Office Space or Housing • The HBA office can assist attorneys in affected areas who are looking for temporary office space by matching them with attorneys who have available office space they would like to donate on a temporary basis. • The HBA office has three conference rooms, holding 10 to 40 people, that HBA members can reserve free of charge on a space available basis. • We also will assist attorneys in affected areas who need temporary housing for themselves and their immediate families by matching them with attorneys offering temporary living space. For information on these services, please contact the HBA office at 713-759-1133 or email Kay Sim at email@example.com.
Helping the Public and Your Clients Resource Materials for Responding to Legal Questions from Those Affected by Disasters This is a comprehensive guide for attorneys who field questions from those affected by disasters. It was prepared by the State Bar of Texas, the Houston Bar Association, the Central Texas 38
Wildfire Legal Response Team, Texas Rio Grande Legal Aid and Lone Star Legal Aid. Updated September 2017. https://texasbar.com/AM/Template.cfm?Section=Disaster_ Resources_for_Attorneys&Template=/CM/ContentDisplay. cfm&ContentID=37846 LegalLine FAQ Developed by Baker Botts LLP for attorneys who volunteer for LegalLine and other disaster relief programs, this guide provides concise answers to frequently asked questions. Available on the HBA website at hba.org/Harvey. State Bar of Texas Disaster Resources This link provides advice and videos on filing for federal aid, insurance, lost documents, renter’s rights, scams and many other topics. https://texasbar.com/Content/NavigationMenu/ ForThePublic/DisasterReliefResources1/default.htm Responding to Harvey: Know Your Legal Rights A publication of Reed Smith LLP and the Texas Young Lawyers Association. reedsmith.com/en/perspectives/2017/09/ responding-to-harvey-know-your-fema-rights National Flood Insurance Program – Summary of Coverage Developed by FEMA, this guide defines flooding for insurance purposes and includes facts about flood policies, what is and is not covered, how damages are valued, and insurance options. fema.gov/media-library-data/20130726-162020490-4648/f_679_summaryofcoverage_11_2012.pdf The FEMA website on the National Flood Insurance Program is fema.gov/national-flood-insurance-program Solace This website developed by the Federal Bar Association includes information on volunteering, contributions, Supreme Court updates and temporary office or other space for Federal Bar members. fedbar.org/Outreach/SOLACE/Assistance-forHurricane-Harvey.aspx
Other Helpful Disaster Relief Websites The following is a list of helpful websites that provide useful information to attorneys who need information on legal assis-
tance available after Hurricane Harvey. From Resource Materials for Responding to Legal Questions from Those Affected by Disasters.
Disaster Relief Websites Federal Emergency Management Agency
Houston Bar Association
Houston Volunteer Lawyers Program
Insurance Information Institute
LawHelp – Texas
Legal Aid of Northwest Texas
Lone Star Legal Aid
National Disaster Legal Aid
Social Security Administration
State Bar of Texas
Texas Governor’s Office
Texas Legal Services Center
Texas RioGrande Legal Aid
U.S. Health & Human Services
U.S. Internal Revenue Service
U.S. Postal Service
Legal Community at Forefront of Help After Harvey ouston attorneys were “first responders” when it came to legal assistance after Hurricane Harvey. But the legal community’s response was much broader, from collecting supplies to mucking out homes to rescuing neighbors. The photos here a just a sampling of the assistance that lawyers and their families
provided after the storm. The November-December issue of The Houston Lawyer will feature more photos and stories about lawyers who made extraordinary contributions to help those affected by the storm, as well as legal articles that will help you assist your clients on the road to recovery.
Jacy Barnwell and Laura Moore of Marlatt Barnwell & Boyd, PLLC wanted to involve firm members’ children in Harvey relief, so they organized decorating and filling over 200 lunch bags that they delivered to Friendswood and Dickinson volunteer groups helping to muck and gut flooded homes. Firm members and other attorneys also helped one of their clients by salvaging and inventorying their losses for a FEMA claim.
Right after the storm ravaged the Beaumont-Port Arthur area, Ray Panneton and Andrew Van Singel raised $1,200, recruited 10 volunteers, and purchased water, cleaning supplies and non-perishable food. They were one of the first groups to arrive in hard-hit Port Arthur, where they delivered the supplies to the city’s shelter. Panneton and Van Singel are both leaders with the American Bar Association’s Young Lawyer Division, which is coordinating disaster relief for the ABA. thehoustonlawyer.com
Asian American Bar Association board member Vinh Ho volunteered with Boat People SOS at the Linh Son Buddhist Temple in San Leon, Texas to help Harvey victims with FEMA applications, Red Cross aid and other needs. Many members of the AABA are volunteering at Disaster Recovery Centers to provide help for those who speak Vietnamese and Chinese.
Attorney Denise Kurt and her husband, Walter Kurt, delivered clothes, school supplies and tote bags to Gulf Meadows Church off Fuqua Street, an area devastated by Harvey.
Attorneys from Gibson Dunn volunteered to muck and gut homes for Houston Habitat for Humanity. More than 111 Habitat homes in Houston were flooded during Harvey.
Volunteers from the law firm of Gardere Wynne Sewell LLP assisted those affected by the storm at a September 8 legal clinic sponsored by the HBA’s Houston Volunteer Lawyers at KIPP Academy.
More than 150 attorneys volunteered to answer calls from the public during the HBA’s extended LegalLine program. Pictured here is volunteer attorney Taylor Felton of Norton Rose Fulbright US LLP.
The law firm of Fullenweider Wilhite and the Association of Women Attorneys, along with other groups, collected professional clothing for women who lost their wardrobes in the storm and need help getting back to work. Lauren Waddell is pictured with some of the clothing for women who could schedule a time to “shop” for the items they needed. 40
On September 8, Baker Botts LLP organized and hosted free disaster relief live training and webinars for attorneys who want to provide pro bono legal services for those impacted by the storm. The program was sponsored by Baker Botts, the HBA, Houston Volunteer Lawyers and Lone Star Legal Aid and trained approximately 660 attorneys.
Victor Makris, managing attorney of Makris Law, kayaked to his neighbor’s house to bring them over to his own house. Says Victor, “I was so happy for the break in the rain, I had a big grin on my face.”
Phelps Dunbar attorneys Amy Greene, Sara Nau and Chad Schreiber mucked and gutted the flooded garage of one of their firm’s attorneys. “Unfortunately,” says Peri H. Alkas, who took the photo, “it was my garage.”
Attorneys from CenterPoint and Gibson Dunn provided legal advice at a clinic sponsored by the HBA’s Houston Volunteer Lawyers at the Jewish Family Service of Houston.
HOUSTON LAWYERS WHO MADE A DIFFERENCE
World War I SERIES
James A. Baker, Jr. O ur image of war and the role of the infantryman is influenced by World War II films. The role of soldiers in World War I was very different. They lived in trenches filled with mud and rodents. They were bored except when they, or the opposing army, were ordered to go “over the top” to try to push the lines back a few hundred yards. Those moments were filled with terror. James A. Baker, Jr. was a young lawyer and the son of James A. Baker, the driving force behind the founding of Rice University. He volunteered for military service the day after war was declared and finished law school before reporting for duty. When he arrived in the Meuse River region of France in August 1918, he was a lieutenant. His regular assignment was daunting. He was to cross “dead man’s land” secretly, walking among the thousands of corpses that littered the area, until he got within view of the German camp. His task was to survey the enemy’s supplies, readiness and size and attempt to capture a prisoner for interrogation. Lieutenant Baker then had
By The Hon. Mark Davidson lion people worldwide and acto bring that prisoner back counted for almost half of U.S. across the lines before dawn. military deaths. Captain Baker According to the Minutes of traveled back to the U.S. on a the 90th Division, he brought hospital ship and was nursed back a prisoner on every one back to health in a Long Island of his sorties. His efforts gave ward. Future Governor Beauthe Allies invaluable informaford Jester and fellow Houstion. ton lawyer Ewing Werlein, Sr. In the last two weeks of the were also there. He returned to war, his unit transferred to the Houston to start his law career area around Verdun, replacing in August of 1919. a division that had suffered a James A. Baker, Jr. Baker never spoke of his service to law60 percent casualty rate. He and his comyers he worked with during his career. He is rades were shelled by artillery and gassed remembered as an old-school gentleman. right up to November 11th, the day of the To the men he led into battle, and the men armistice. He was the only officer in his regiwhose lives he saved with timely informament not killed or wounded. The men under tion, he made a difference. his command held the lines and advanced several miles in the Meuse-Argonne OfThe Hon. Mark Davidson is an MDL fensive. Immediately after the cessation of hostilities, he was promoted to captain and judge and judge (retired) of the 11th Discited for bravery above and beyond the call trict Court. His column for The Houston of duty. Lawyer focuses on Houston attorneys After facing death on the battlefield, he who have had significant impact on the almost died in the Spanish Flu epidemic. law, the legal profession and those served A virulent strain of influenza killed 30 milby the law.
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OFF THE RECORD
By Mini Kapoor
The Art of Appellate Law
imagine a typical day for Christina Crozier, a member of Haynes and Boone’s appellate team, starts with bidding goodbye to her husband and her seven-year-old twins, negotiating the Houston rush hour traffic, and arriving at court to deliver a winning argument. Come lunch time, you might bump into Christina at a meeting of the executive board of the Women’s Fund for Health Education and Resiliency or the Houston Bar Association Appellate Section Council, where she serves as the editor-in-chief of the “Appellate Lawyer.” Flash-forward to Haynes and Boone’s office, and you would find Christina working on her next brief in a personal injury, oil and gas, or general commercial dispute. By three o’clock in the afternoon, Christina has already accomplished more than most people accomplish in a day. But there is more to this appellate lawyer. While most lawyers find it hard to negotiate through a busy day, Christina appears to do it with ease while, surprisingly, nurturing a passion for art. As Christina puts it, she “inherited some artsy genes” from her mother, an avid quilter, and her dad, a Christina Crozier lover of music. Christina paints amazing portraits of people and animals on canvas in acrylic paint and likes “to take creative liberties with color.” In her view, when she changes “the color of an ordinary object, person, or animal, it becomes so much more interesting and beautiful.”
Christina’s love for art started at an early age and grew through the years. Throughout the challenges of school, law practice, and motherhood, Christina has successfully and consistently managed to devote time to her art. Time enough to create paintings that are appreciated by all around her. I wondered how she managed to continue with her art with such enthusiasm. Her answer made perfect sense: Painting is similar to appellate work, in that you start with a completely blank slate and, layer by layer, create a finished product that is inventive and complex. There is something gratifying about creating something out of nothing. With a painting, your work can be enjoyed on walls for years or decades. And, with appeals, your work helps form law that can impact the public in ways that you cannot fully appreciate. Both are like leaving a little bit of graffiti on the world that says, “I was here.” It was refreshing to hear Christina’s unique perspective on law and art, both being complicated subjects that require attention to details. I am certain Christina will be rocking for a very long time in the practice of law and art. Mini Kapoor, Ph.D., is an associate in the Intellectual Property Litigation Group at Haynes and Boone, LLP. thehoustonlawyer.com
The Dispute Resolution Center:
Providing Quality ADR Services to the Residents of Harris County for Over 35 Years
By Marni Magowan Otjen
The Houston Lawyer
eople disagree all the time. Merchants and consumers disagree, landlords and tenants disagree, and employers and employees disagree. Fortunately, most disagreements are resolved by the parties themselves. But what about the rest? Some, of course, require the full power of the court system to reach resolution. However, many disputes can be resolved in a less formal way, through mediation or other means of Alternative Dispute Resolution (ADR). And for residents of Harris County, such ADR services are provided—free of charge— by the Dispute Resolution Center (DRC). The DRC was established in 1980 as the first dispute resolution center in Texas, and currently provides eight mediation programs. The DRC model is so successful that today there are 18 independently operated dispute resolution centers in the state. The DRC is a community service program sponsored by the Houston Bar Association, and overseen by a Board of Directors made up of HBA members who are part of HBA’s ADR Committee. The DRC is a non-profit corporation that is funded via a portion of filing fees from certain civil cases—no taxes fund the DRC. One of the principal DRC programs is the Community Based Mediation Program, which accounts for 70% of case volume. This program provides mediation services for a wide range of issues, from disagreements about auto repair to those related to homeowners associations—the types of disputes that might otherwise end up in small claims court. In fact, some media-
tions are actually held at JP courts. Both individuals and businesses can utilize this service, whether a case has been filed or not, and mediations are generally conducted quickly and at the convenience of the parties. The DRC also has a Family Mediation Program, which provides mediation services related to divorce, as well as grandparent access and non-traditional relationship issues. The Harris County family courts refer many divorce matters to the DRC, but a court order is by no means required. As long as divorcing parties meet certain income guidelines, typically a combined income of less than $80,000, they are eligible for mediation assistance at any stage of the divorce process, including post-divorce modifications. Through its Litigation Program, the DRC offers not only mediation, but also arbitration and moderated settlement conferences. This program covers matters ranging from personal injury to breach of contract, and includes both active civil cases as well as general disputes – where no lawsuit has yet been filed. In each situation, the disputed amount cannot exceed $100,000, and there cannot be more than three parties involved. Individuals, or their attorneys, may request these DRC services, but most ADR provided under this Program is court ordered. Between all of its programs, the DRC is a busy organization. In 2016 alone, over 2,100 mediations were held, with the help of 7,900 volunteer hours. While the DRC has 10 dedicated emContinued on page 49
in pro f e s s io n ali s m
David J. Beck Partner, Beck Redden LLP
any years ago, Leon Jaworski, who was a prosecutor of World War II Nazi war criminals at Nuremberg, Germany, and would gain additional fame later as the Watergate Special Prosecutor, met with eight young, aspiring trial lawyers in a small conference room at Fulbright & Jaworski to inform us what was expected of us as new associates. The meeting lasted less than 30 minutes, but I remember that meeting as if it occurred just a few days ago because it helped shape my legal career. Colonel Jaworski, as we called him, first explained that we were now “professionals,” and therefore we had obligations to the law firm’s clients, to the legal profession and the administration of justice, and, equally important, to the community in which we lived. His remarks were direct and left no doubt of his lofty expectations for us. He concluded by telling us that, as trial lawyers, we “were the Marines of the profession.” After that comment, each of us would have run full speed to the courthouse if only he had handed us a client’s file.
Colonel Jaworski never defined “professionalism” for us during that meeting. But he did emphasize that much was expected of us because we had the “privilege” of being a lawyer. And he also warned that, even though our professional careers were just beginning, whether we knew it or not, we had already begun to develop our reputation, that we could spend 25 or 30 years developing a good reputation, and then lose it in five minutes because of inappropriate behavior. My takeaway from Colonel Jaworski’s comments at that short meeting was that a true “professional” represents his or her clients zealously, has a deep commitment to improving his or her skills, while at the same time exhibiting qualities such as honesty and integrity. True “professionals” keep their word, never compromise their values, and do the right thing even when it means taking a more difficult road. That is what makes being a lawyer so special, and as Colonel Jaworski told us many years ago, that is why I believe it is such a privilege to be one.
Legislature Updated Medical Malpractice Pre-suit Notice Requirements By Robert Painter
The Houston Lawyer
n the 2003 wave of tort reform, Texas Civil Practice & Remedies Code Chapter 74 came into being, codifying the laws governing health care liability claims, including medical malpractice cases. One of the significant changes in Chapter 74 is the pre-suit notice procedure. While in many situations, the potential implications of noncompliance with these procedures are rather benign (i.e., a 60-day abatement of the lawsuit), in certain situations they can result in a summary judgment for the defendants based on the statute of limitations. The predecessor statute, Article 4590i of the Texas Revised Civil Statutes, required claimants to send a written notice of claim letter to each potential defendant at least 60 days before filing a medical malpractice lawsuit. By properly serving the notice letter by certified mail returnreceipt requested on any potential defendant, the statute of limitations is tolled for 75 days for all potential defendants. Chapter 74 retained the 60-day notice requirement and 75-tolling provision, with a twist. In order to meet the requirements of Chapter 74, a pre-suit written notice of claim must be accompanied by a statutorily-defined “Authorization Form for Release of Protected Health Information.” The authorization form requires, among other things, disclosure in separate lists of health care providers who saw the claimant for any reason during the five years preceding the alleged negligence, and health care provid46
ers who treated the claimant as a result of the alleged negligence. At first glance, this seems like a straightforward, check-the-box exercise. It is more technical than that, though. After the Supreme Court of Texas largely closed the door on the ubiquitous challenges to the sufficiency of Chapter 74-required expert reports, the defense bar shifted its focus to challenging the sufficiency of authorizations attached to notice of claim letters. In the 2017 regular legislative session, an amendment to Chapter 74.052(c) quietly became law, modifying the text of the statutory authorization that must accompany pre-suit notice letters for health care liability claims. Because of the overwhelming majorities by which House Bill No. 2891 passed both houses, it was effective as soon as Gov. Greg Abbott signed the bill on June 7, 2017. Some of the key changes include addition of required disclosure of the patient’s address, telephone number, email address, and place of birth, and deletion of the patient’s birthdate. Notably, this statute states that the mandatory pre-suit medical authorization “shall be in the following form.” This is different from other statutes that allow documents to be “substantially” in a certain form. Therefore, it is reasonable to expect defense challenges to any medical malpractice lawsuit filed after June 7, 2017, which relies on the 75-day tolling period in order to be timely filed, when the pre-suit notice of claim letter was accompanied by the earlier version of the authorization. Most lawyers who routinely represent plaintiffs in medical malpractice claims believe that the golden rule is to never rely on the 75-day tolling provision, to avoid this potential minefield. Then again, you should never say never, and ensure that any pre-suit notice of health care liability claim includes the correct version of the required authorization form, filled out perfectly and comprehensively by the plaintiff. Robert Painter is an attorney at Painter Law Firm PLLC, where he represents medical malpractice plaintiffs. He is a past Editor-in-Chief of The Houston Lawyer.
Law Firm Cybersecurity By Danie Garrie and Bill Spernow American Bar Association, 2017 Reviewed by Raymond L. Panneton
odern law firms have been implicitly tasked with defending against data breaches and cyber attacks. Given that most attorneys are somewhat ignorant as to what cybersecurity truly entails, Daniel Garrie and Bill Spernow’s tome seeks to educate the practitioner on the nuts and bolts of the threats law firms face and on measures to prevent cybersecurity threats. Daniel Garrie is a seasoned e-discovery special master, a mediator, and co-founder and senior partner of Law & Forensics, LLC. Co-author Bill Spernow is a director with Law & Forensics, LLC and specializes, in part, in forensic analysis, defensein-depth enterprise level security projects, and hacking activity. In their book, Garrie and Spernow combine forces and provide an approachable and concise guide to law firm cybersecurity. It is without question that law firms must devote resources to protecting their confidential data – whether that threat be internal or external. In doing so, even if the practitioner seeks to outsource their cybersecurity, one must have knowledge of the threats facing firms and how to stop them. Garrie and Spernow provide a detailed and, at times, technical background as to threats, security, and even damage control. This book allows the practitioner to understand and respond to modern threats facing their data, especially in the age of email and cloud computing. No matter one’s practice area, the modern practice of law requires practitioners to stay vigilant against threats to their confidential information and client data. Garrie and Spernow provide a detailed and approachable guide to current threats, necessary
cybersecurity measures, and technical data to assist law firms in their quest to protect their data. In addition to the practitioner looking to stay ahead of cybersecurity pitfalls, Law Firm Cybersecurity serves as a great resource for IT professionals servicing law firms. Oftentimes the cybersecurity needs of law firms require addressing certain issues that are not relevant to the average customer. This book provides technical and detailed information that provides IT professionals the tools necessary to keep their law firm clients safe and secure. Raymond L. Panneton is a board member of The Houston Lawyer and practices corporate litigation with Hendershot, Cannon, Martin & Hisey, PC. He can be reached at firstname.lastname@example.org
The Chickensh** Club: Why the Justice Department Fails to Prosecute Executives By Jesse Eisinger Simon & Schuster, 2017 Reviewed by David V. Wilson II
esse Eisinger, a Pulitzer Prize-winning journalist, put his reporting skills to work after the 2008 financial crisis to determine why the United States Justice Department prosecuted relatively few individual executives involved in that crisis. The book derives
its title from James Comey who, while serving as a U.S. Attorney, told a 2002 gathering of prosecutors that those in their ranks who had never lost a jury trial were members of the eponymous club. Comey’s point was that the Justice Department should take on hard cases and large injustices, not simply the easiest targets. Eisinger believes it no longer does so in the case of white collar crime. After recounting the story of Comey’s speech, Eisinger goes through the arc of the post2000 crisis prosecutions by the U.S. Government, including the Enron, Arthur Andersen, and WorldCom prosecutions. The Enron episode is well-chronicled, albeit with little attempt to be objective. The author clearly sees the Enron prosecutors as justified in their legal tactics, and writes disapprovingly about the appellate court decisions blunting or reversing many of the Enron Task Force’s trial court successes. The book then takes a roughly chronological view of white collar crime enforcement history from the “New Deal” era to today. This prosecutorial history will be interesting to legal historians. Parallel to this discussion is a history of Securities and Exchange Commission regulatory efforts. The anecdotal evidence Eisinger compiles with this parallel discussion supports a conclusion that the U.S. Government as a whole had elected—by the end of the second Bush administration—to regulate the financial system with large settlements with corporate defendants rather than individual defendants, in both civil and criminal enforcement arenas. In a rare use of statistics, Eisinger cites Justice Department data indicating a drop in indictments of corporations and an increase in the use of settlements over the period from 1992 through 2015. The thrust of Eisinger’s conclusion, which is otherwise based upon anecdotal evidence and individual interviews, is that the Justice Department gradually changed from aggressive enforcement through criminal sanctions against individuals and corporations, to more passively negotiating monetary settlements with corporate actors alone. Eisinger equates this
with impunity. The cause of this change is attributed by Eisinger to multiple factors. Specifically, Eisinger blames the “revolving door” between the white collar defense bar and the Justice Department, growing corporate lobbying influence in Congress, and a pro-business federal appellate bench, all culminating in an erosion of prosecutorial skills that has led to a fear of being aggressive. Three Justice Department officials whose names were highlighted in the early days of the Trump administration, due to their firings, appear in the book: Comey, Preet Bhrarara, and Sally Yates. While the latter two received praise during their Justice Department tenures for being tough on white collar crime, Eisinger disagrees. Bhrarara, once praised by Time Magazine, is criticized as focusing almost exclusively on easy to prove “insider trading” cases. Yates, whose controversial “Yates memo” alarmed many in the white collar defense bar, is dismissed as not going far enough in making white collar prosecution more aggressive. Extensive criminology literature questions an approach of episodic intervention focused on deterrence, as opposed to a multi-faceted regulatory approach to changing corporate behavior.1 But Eisinger takes a different view. He assumes—though without supporting data or evidence—that prosecuting individual actors (with subsequent incarceration) and criminally prosecuting corporations will better serve to deter and prevent industry misconduct, and his prose therefore praises prosecutors with an “aggressive cowboy culture” over cautious bureaucrats. David V. Wilson II is a partner in the Houston office of MehaffyWeber. He practices in both Texas and Nevada, and is a former Editor in Chief of The Houston Lawyer Endnote 1. See, e.g., John Braithwaite, In Search of Donald Campbell, CRIMINOLOGY & PUBLIC POLICY 15(2), p. 417 at 431 (American Society of Criminology 2016).
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from the editor
From page 8
Texas’s First Court of Appeals, 1892 – 2017, depicts the court’s 125-year journey through times of peace and war, political whims, financial highs and lows, natural disasters and the court’s culture and camaraderie through it all. In the final pages of this issue, there is a resource guide to help direct those in need of information related to disaster recovery. Harvey wreaked havoc and destruction upon our city, and as lawyers, we are a vital part of what makes Houston Strong. The November/December will focus on impending legal matters and accounts that display the kindness and generosity of lawyers who make a difference in our community when it is needed the most.
From page 40
ployees, those individuals do not conduct ADR. Indeed, 100% of ADR services are provided by trained volunteers, of whom approximately 75% have 10 years or more of mediation experience. In divorce cases, volunteers must also possess a Juris Doctor and have completed specialized training in family mediation. For active civil cases, volunteers must also be attorneys licensed in Texas for at least 5 years, and in good standing with the State Bar. To increase the pool of qualified mediators, the DRC offers a Basic Mediation Training as well as a Family Mediation Training once a year. Ultimately, there are numerous people, from DRC staff, to HBA member volunteers, to volunteer mediators who
work together to make the DRC such a successful community service. Their combined efforts not only help ease burdens on the Harris County court system, but also ensure that free, quality ADR is available to County residents. If you have a client, a friend, or perhaps a problem of your own that might benefit from DRC assistance, or if you are interested in possibly volunteering or participating in training, go to www.drchouston.org or call (713) 755-8274 for more information. Marni Magowan Otjen is a licensed attorney, and a member of both the DRC Board of Directors and The Houston Lawyer Editorial Board.
Pro Bono Week October 22 - 28 Do Good. Do Justice. Do Pro Bono.
The Houston Bar Association and Houston Volunteer Lawyers will celebrate Pro Bono Week 2017 with activities ranging from legal clinics to educational seminars to fundraising for pro bono. For more information, visit one of the web sites below.
Best way to celebrate? Take a pro bono case today! thehoustonlawyer.com