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A New Texas Court Opens for Business Harris County’s Felony Mental Health Court From Big(ger) Law to a Boutique Practical Legal Advice for Small Business Owners Best Practices in Corporate Formation Probate Preparedness: Key Considerations Probate Attorneys Want Business Attorneys to Know How Loper Bright Changed the Chevron Docnch trine, Why it Matters, and What Happens Next

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THE HOUSTON

inside...

Volume 62 – Number 2

September/October 2024

Business Law

Industry-Focused Legal and Advocacy Strategies

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Strategic Partner Vinson & Elkins assists leading companies on wide-ranging matters in key industries across the economy. Drawing on deep knowledge and experience, we engage closely with our clients, providing forward-thinking counsel that positions them to achieve their goals. Built on a strong culture of collaboration across 11 offices worldwide, we are committed to excellence, providing clients with strategic counsel in transactions, investments, projects, and disputes globally. Since its founding in 1917, V&E has been a trusted advisor to many of the world’s leading businesses and investors.

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LEADER and

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Locke Lord is proud and grateful to call David Harrell a longtime Partner, mentor and friend. We applaud his outstanding leadership and impactful contributions to the Houston community and beyond. Congratulations, David, on your election as Houston Bar Association President as we join you in the HBF’s 75th Anniversary Harvest Celebration!

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contents September/October 2024

Volume 62 Number 2

FEATURES

10

14

Texas Court Opens 10 AforNew Business

By David Harrell

Better Way: Harris County’s 13 AFelony Mental Health Court

By Andrew Pearce

a Business: From Big(ger) 14 Building Law to a Boutique

By Dave Louie

Legal Advice for Small 18 Practical Business Owners

By Carey Worrell

22

26

Best Practices in Corporate Formation

By Cody Dumas

Probate Preparedness: Key Considerations Probate Attorneys Want Business Attorneys to Know

By Alisa Hoggatt

Loper Bright Changed the 22 How Chevron Doctrine, Why it Matters, and What Happens Next

By Fermeen Fazal

26 Harvest Celebration Underwriters You to the HBA, HBF, and 28 Thank HVL Board Members for Their

The Houston Lawyer

Service and Support of the 75th Annual Harvest Celebration

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2024. All rights reserved.

2 September/October 2024

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We are proud to support

HOUSTON VOLUNTEER LAWYERS through the Houston Bar Foundation’s 75th Annual

HARVEST CELEBRATION www.morganlewis.com ©2024 Morgan Lewis | Morgan, Lewis & Bockius LLP, a Pennsylvania limited liability partnership

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September/October 2024

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contents September/October 2024

Volume 62 Number 2

departments

30

32

Message 6 President’s How the HBA’s Work Exemplifies

the Creed and Professionalism

By David Harrell

the Editor 8 From The Business of Law

By Andrew Pearce

THE RECORD 30 OFF Mekisha Jane Walker:

But, Why Did You Stay?

By Jessica Crutcher

in professionalism 32 ABillProfile Kroger

38

Partner, Baker Botts L.L.P. HBA Past President (2020-2021)

Spotlight 34 committee Judicial Polls Committee:

Giving Houstonians HBA Lawyers’ Evaluations of Judges and Judicial Races

By Colin Pogge and Kevin Jacobs

Section Spotlight 35 Ready for Resolution:

Spotlighting the HBA ADR Section

By Denise Peterson, J.D., FCIArb

trends 36 Legal Not-So-Limited Individual Liability

for Members of LLCs

By Nikki L. Morris

Presumed Innocent? Texas’ Rebuttable Presumption of Non-Defectiveness Gets Some Much-Needed Clarification

By Lane Morrison

reviews 38 Media Fight of the Century:

Writers Reflect on 100 Years of Landmark ACLU Cases

Reviewed by JESSICA CRUTCHER

The Houston Lawyer

45 Litigation MarketPlace

4 September/October 2024

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Blank Rome LLP is pleased to support the Houston Bar Foundation and its 75th Annual Harvest Celebration.

Blank Rome is an Am Law 100 firm with 16 offices and more than 700 attorneys and principals who provide a full range of legal and advocacy services to clients operating in the United States and around the world.

Boston • Chicago • Cincinnati • Dallas • Fort Lauderdale • Houston Los Angeles •New York • Orange County • Philadelphia • Pittsburgh Princeton • Shanghai • Tampa • Washington • Wilmington

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September/October 2024

5

president’s message

By David Harrell Locke Lord

How the HBA’s Work Exemplifies the Creed and Professionalism

The Houston Lawyer

I

recently had the opportunity to offer remarks regarding professionalism at the University of Houston Law Center’s professionalism dinner for incoming students. As I prepared those remarks, I compared the university’s professionalism statement with the Texas Lawyer’s Creed.

I found considerable overlap between the two, with UHLC focusing on excellence in the practice of law, pride and responsibility in the chosen profession, courtesy and civility, ownership of actions, work-life balance, physical and mental wellness, service to the community, and respect for others within the profession. This year, the Houston Bar Association celebrated the 35th anniversary of adoption of the Texas Lawyer’s Creed, which celebrates many of the same concepts. As I prepared my remarks, two parts of the Creed stood out to me.

First, the Creed recites that as a lawyer, “I am passionately proud of my profession. Therefore, my word is my bond.” This emphasizes that the practice of law is more than a vocation— it is a profession. But the Creed goes further and encourages lawyers to take pride in that profession. To reflect pride in the profession, the Creed acknowledges the importance of integrity.

Second, the Creed acknowledges that “I know that Professionalism requires more than merely avoiding the violation of laws and rules.” In short, professionalism is more than doing the mere minimum or checking the box. The Creed is a starting point for professionalism, but it is not the entire roadmap.

The HBA has awards and programs that focus on the significance of professionalism.

Two awards in particular that positively recognize professionalism are the Justice Eugene A. Cook Professionalism Award and the Justice Ruby Kless Sondock Award. The former is named in honor of the late Texas Supreme Court justice, who was known as the “father of legal professionalism in Texas” and was a driving force behind the Creed. The award is given to a lawyer or judge who exemplifies the highest level of professionalism and legal ethics. The Justice Ruby Kless Sondock Award, named in honor of Justice Sondock—a trailblaz6 September/October 2024

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er in the legal profession as the first woman to serve on the Supreme Court of Texas since a special session in 1925, and the first woman district court judge in Harris County. (While I had tried my first case within a year of receiving my license, Justice Sondock had already argued her first case to the Texas Supreme Court within her first year in practice.) The Sondock Award is given to a woman lawyer or judge for exceptional achievement and leadership in the law, and recognizes women who have demonstrated, by conduct and character, a record of exceptional service as a role model, mentor, and advocate in the legal profession, and a lifelong commitment to professionalism.

HBA members can find other pillars of professionalism within each issue of The Houston Lawyer, this bimonthly magazine which invites attorneys and judges to share their personal perspectives of professionalism in the Profile in Professionalism column.

The HBA Professionalism Committee, which promotes professionalism within our legal community and encourages public awareness of the HBA’s commitment to its professionalism mandate, coordinates the HBA Mentor-Mentee Program. The committee also hosts the annual Houston Day of Civility in the Law, which is part of a statewide recognition to promote civility within our profession, a key tenant within the Creed. The HBA Living History Project, led by the Historical Committee, records interviews with seasoned members of the Houston legal community to capture their stories and perspectives on life, the practice of law, and professionalism.

We are called upon to tenaciously practice professionalism each day, an endeavor that comes easier some days more than others in a demanding profession. That’s why it’s incumbent upon all of us to seek out help when we need it. The State Bar of Texas offers a free helpline for lawyers who have questions about their ethical obligations. The number is 800-532-3947.

Lawyers can also take advantage of the Texas Lawyers’ Assistance Program, which offers resources for those dealing with substance use and mental health issues. TLAP’s number is 1-800-343-8527. There is no shame in asking for help.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

David Harrell

Kaylan Dunn

Daniella Landers

Greg Ulmer

Jeff Oldham

Diana Gomez

Second Vice President

Collin Cox

DIRECTORS (2023-2025) Carter Dugan

Greg Moore Colin Pogge

DIRECTORS (2024-2025) Todd Frankfort

DIRECTORS (2024-2026) Keri Brown Seepan V. Parseghian

Robert Painter Samantha Torres

editorial staff Editor in Chief

Andrew Pearce Associate Editors

Anna M. Archer Nikki Morris Braden Riley

Sydney Huber Bateman Lane Morrison Kyle Steingreaber

Editorial Board

Anietie Akpan Jessica Crutcher Corey Devine Traci Gibson Jeffrey Johnston David T. López Emily Mott Rinku Ray Benjamin Roberts Rachael Thompson Nicolette Zulli

Jaclyn Barbosa Jonathan Day Allison Ebanks Felicia Harris Hoss Denise Khoury Dave Louie Ciara Perritano Hon. Josefina M. Rendón Jennifer Smith Carey Worrell

Managing Editor

Maggie Martin

HBA office staff Executive Director.................... Vinh Ho Associate Executive Director....... Ashley G. Steininger Executive Assistant and Director of Board Affairs............ Gina Pendleton Controller ............................... Sarah Kole Director, Marketing and Communications ..................... Maggie Martin Communications Specialist........ Briana Ramirez Education Coordinator ................. Alli Hessel Director, Projects and Events...... Bonnie Simmons Projects and Events Assistant..... Georgina Peña Director, Membership and Technology Services................. Ron Riojas

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thehoustonlawyer.com

September/October 2024

7

from the editor

By Andrew Pearce BoyarMiller

Associate Editors

Anna M. Archer U.S. District Court

Sydney Huber Bateman Horne Rota Moos

Nikki Morris BakerHostetler

Lane Morrison Bush Seyferth

The Houston Lawyer

Braden Riley Marrow & Sheppard

Kyle C. Steingreaber Adams and Reese

I

The Business of Law

recently celebrated 17 years with BoyarMiller. It is the firm I clerked with during law school and then joined when I graduated. I certainly enjoy what I do and I very much value the relationships I have developed with my colleagues at the firm, many of whom were here when I started. But I think the reason I have stayed is because I connect so deeply with my firm’s mission and values.

Our mission is to provide counsel beyond expectations, build lasting relationships, and make a meaningful difference in people’s lives, and our values include such things as highest integrity in all dealings and sustaining an atmosphere of mutual respect, support, and authentic communication. I tell folks that I do not love my firm because we always live up to our values, I love my firm because we have a measure by which to know when we fall short. We also consider ourselves a group of entrepreneurial-minded attorneys who enjoy working with entrepreneurs. It is a great culture that I have immensely enjoyed learning from and (I hope) contributing to for so many years.

Against this backdrop, I was thrilled to read about lawyers who took the leap to start their own firms and build their own culture. My sincere thanks to Dave Louie for sitting down with Cara Vasquez and Mark Waite of Vasquez Waite and with Pam Hicks, Scott Davis, and Forrest Wynn of Hicks Davis Wynn, P.C. as they shared the highs and lows, as well as the rewards and the struggles, that came with starting their own firms.

As part of our work this Bar Year, we are highlighting each of Harris County’s six specialty courts. For this issue, I was given the opportunity to visit with Giuliana Lozano, LCSW, the program manager for Harris County’s Felony Mental Health Court. Ms. Lozano previously served as both a case manager and a court clinician for the FMHC, so I imagine few people have as much institutional knowledge about or insight into the FMHC as she does, but it is her enthusiasm for the

8 September/October 2024

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program that is infectious. If you want to know what gives her goosebumps, check out the article on page 13.

I am also reminded of the old saying that you can spend a little money on the front end or a whole lot of money on the back end. Nowhere is that truer than for small business owners setting up their businesses for the first time. Thanks to Carey Worrell, Cody Dumas, and Alisa Hoggatt, who offer some great advice on corporate formation, probate considerations, and much more.

Plus, readers of this issue can learn about the new Business Court coming to Texas thanks to HBA President David Harrell, as well as a terrific legal update from Fermeen Fazal on the significant impact of the Loper Bright case on the Chevron Doctrine, why it matters, and what stands to happen next.

I would also like to remind readers of our companion podcast—Behind the Lines: The Houston Lawyer Podcast—which regularly brings our magazine to life with lively and interesting conversations centered around each issue’s theme. Our upcoming podcast, titled The Business of Law, is no different. Anna Archer will speak to a host of terrific guests, including Michael Cancienne of Jordan, Lynch & Cancienne PLLC on starting his own firm, Natasha Breaux of Haynes and Boone, LLP on the new Business Court, Jonathan Jackson of J. Jackson Law Offices—also known as the “Sneaker Lawyer”—on his firm’s branding and why it is important, and Pete Patterson of Patterson, PC on common issues associated with partnership dissolution. Best of all, HBA members are eligible to receive CLE credit for listening (often including ethics credit). You can find more information, including links to current and past podcasts, as well as CLE credit information at The Houston Lawyer tab at the top of the hba.org website.

Finally, a big thanks to Ciara Perritano and Corey Devine for serving as guest editors for this issue and, as always, thank you for reading The Houston Lawyer.

LOYAL.

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September/October 2024

9

By David Harrell

A New Texas Court Opens for Business

D

uring Texas’ 2023 legislative session, House Bill 19 created the Texas Business Court (the “Business Court”) under the authority of Section 1, Article V of the Texas Constitution.1 The bill established the court’s jurisdiction to address disputes between businesses, and among businesses and their owners, directors, and management. The statute focuses on disputes such as breach of contract, breach of fiduciary duty, governance and control disputes, and violations of securities and trade regulation laws. The Business Court opened September on 1, 2024.

Where Will the Business Court Operate?

Although the Business Court has statewide jurisdiction, it will first operate in only 80 of Texas’ 254 counties. Texas is divided into 11 administrative judicial regions. Though the Texas Legislature created the Business Court in all 11 regions, the court will initially operate in only five of the administrative judicial regions, including: the first (Collin, Dallas, Ellis, Fannin, Grayson, Kaufman, and Rockwall counties), third (26 counties surrounding Au st i n), fourth (22

counties surrounding San Antonio), eighth (18 counties surrounding Fort Worth) and eleventh (Harris, Galveston, Fort Bend, Brazoria, Matagorda, and Wharton counties).2 Each of those five business court divisions currently has two judges.3 The remaining six divisions will begin operations September 1, 2026, if the Texas Legislature elects to fund a court in those respective judicial regions,4 and those six divisions will have one judge each.5 Interestingly, three Texas counties have populations of over 500,000 residents but will not have operative business courts until 2026, if at all: Montgomery County (Second Administrative Judicial Region); Hidalgo County (Fifth Administrative Judicial Region), and El Paso County (Sixth Administrative Judicial Region).

Unlike Texas district and county courts, the Business Court judges are appointed by the governor, with advice and consent from the Texas State Senate.6 The judges each serve two-year terms.7 Each judge must be a licensed attorney in Texas who has 10 or more years of experience in practicing complex civil business litigation, business transaction law, and/or serving as a judge in Texas with civil jurisdiction, or any combination of those.8 During the summer, the Texas Supreme Court adopted rules of civil procedure specific to the Business Court.9 Meanwhile, Governor Greg Abbott appointed 10 inaugural judges to fill the following divisions of the Business Court: Eleventh (Houston): Sofia Adrogué and Grant Dorfman First (Dallas): Andrea Bouressa and William “Bill” Whitehill Third (Austin): Melissa Andrews and Patrick Sweeten Fourth (San Antonio): Marialyn Barnard and Stacy Sharp Eighth (Fort Worth): Jerry Bullard and Brian Stagner These judges have all the powers, duties, immunities, and privileges of a district judge.10 Unlike district court judges, however, a Business Court must issue

written opinions in connection with dispositive rulings, if requested by a party,11 and on an “issue important to the jurisprudence of the state,” regardless of whether a party requests the written opinion.12 What Powers Does the Business Court Have?

Subject to the limited jurisdiction created in the new statute, the Business Court has powers similar to those enumerated for district courts by Chapter 24 of the Texas Government Code.13 This includes the power to issue writs of mandamus, sequestration, attachment, garnishment, and supersedeas, as well as to grant any relief that may be granted by a district court. The Business Court can also preside over jury trials.14 What Claims Are Within the Business Court’s Jurisdiction?

The Business Court has original jurisdiction, concurrent with district courts,

over the following actions, subject to a $5 million minimum amount in controversy: • derivative actions; • disputes over an organization’s governance, governing documents, or internal affairs; • claims arising from state and federal securities or trade regulation laws against an organization or the organizations auditor, securities underwriter, or control person or managerial official for acts or omissions in that capacity; • actions by an owner or organization against an owner, control person, or managerial official of the organization acting in that capacity; • actions alleging that an owner, controlling person, or managerial official breached a duty owed to the organization or its owner, including breach of a duty of loyalty or good faith; • actions alleging an owner’s liability

for an organization’s debts (other than a contractual agreement to pay the debt); and, • actions arising under the Texas Business Organizations Code.15 If a party to one of these actions is a publicly traded company, the amount in controversy requirement does not apply.16 Subject to a minimum amount in controversy of $10 million, the Business Court also has original jurisdiction over qualified transactions, contracts agreeing to Business Court jurisdiction (excluding insurance contracts), and actions alleging violations of the Texas Finance Code or Texas Business Organizations Code by an organization other than a bank, credit union, or savings and loan association.17 For purposes of applying this provision, a “qualified transaction” means a transaction, other than a loan or advance of money or credit by certain financial institutions, in which a person pays or lends $10 million or more.18

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The Business Court’s original concurand obligation under an insurance rent jurisdiction also includes actions policy.22 seeking injunctive relief or declaratory judgments involving a dispute that othHow Do Cases Reach the Business Court? erwise falls within the court’s original Parties seeking to invoke the Business jurisdiction.19 Court’s jurisdiction must plead facts establishing jurisdiction and proper venue The Business Court may also exerin a county in one of the Business Court’s cise supplemental jurisdictions, subject operating divisions.23 Once venue is esto statutory restrictions, over any other claim or controversy within the court’s tablished, the Business Court shall enter jurisdiction that forms part of the same an order declaring the county in which case or controversy. The Business Court any jury trial of the matter shall take may exercise supplemental jurisdicplace;24 this statutory requirement does tion only if all parties to the claim and not appear to apply for bench trials, althe Business Court judge though the statute referagree.20 If the parties do not ences “any jury trial” as opposed to cases in which agree to the court exercising a jury is demanded. Apsupplemental jurisdiction, The Business peals from a Business Court the supplemental claim may proceed in a court of origiCourt may also will be to the newly-created nal jurisdiction concurrentexercise supple- Fifteenth Court of Appeals (which was also established ly with the Business Court mental jurisdicby TX House Bill 19).25 proceeding. Regardless of whether all parties agree, tions, subject There are a variety of avthe Business Court may not enues for a dispute to reach to statutory the Business Court. Plainexercise supplemental jurisrestrictions...” tiffs can file an original petidiction over claims involving personal injury or death, tion in the Business Court.26 legal malpractice, or medical liability.21 Parties may also remove actions to the Business Court from the district court or Moreover, there are several categories of the county court.27 Finally, district and cases of which the Business Court does not have jurisdiction, unless the claim county courts can request that the prefalls within the court’s supplemental jusiding judge of an administrative region risdiction: transfer a case to the Business Court to • civil actions by or against govern“facilitate the fair and efficient adminismental entities; tration of justice.”28 Removal to a Business • lien foreclosures involving real or Court does not constitute an appearance personal property, or Mechanics, that waives a special appearance to conContractors, or Materialmen’s liens; test personal jurisdiction,29 nor is it sub• actions involving covenants not ject to “due order of pleadings.”30 to compete or the Deceptive Trade Practices Act; Looking Forward • actions under the Texas Estates Companies, organizers, owners, and Code, Family Code, Trust Code, or managers should be aware of the new Insurance Code; opportunities to have cases heard in the • claims arising out of the production Business Court and should consider planor sale of farm products; ning company formation and transactions • claims related to consumer transacto take advantage of this court. The Busitions arising out of state or federal ness Court opened September 1, 2024, law, if the consumer in Texas is a with five cases filed during the first week. party; and, Four of the cases fell under the court’s • actions related to the duties “qualified transaction” jurisdiction (one

‘‘

12 September/October 2024

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oil and gas dispute, two contract disputes, and a cloud on title), while the fifth is a corporate governance dispute in excess of $5 million for a private company.

Looking to the 2025 legislative session, at least two potential issues loom: (1) will the Texas Legislature fund some or all of the remaining six divisions of the Business Court, and (2) will the Texas Legislature take steps to shape how the Business Court and other courts of original jurisdiction administer cases in which the Business Court did not exercise its supplemental jurisdiction to avoid issues that may arise when overlapping claims are pending in two courts.

The legal community will be confronted with these and other novel issues as we navigate this new judicial landscape. We look forward, however, to witnessing how these courts will transform the future of civil litigation.

David Harrell is the current president of the Houston Bar Association, co-chair of Locke Lord’s Litigation Department, and chair of the firm’s International Arbitration practice group.

Endnotes 1. TEX. GOV’T CODE § 25A.002.

2. Id. at § 25A.003(a)(c), (e), (f), (j), and (m).

3. Id. at § 25A.009(a)(1).

4. Id. at § 25A.003(d), (g), (h), (i), (k), and (l).

5. Id. at § 25A.009(a)(2).

6. Id. at § 25A.009(a).

7. Id. at § 25A.009(b).

8. Id. at § 25A.008(a).

9. TEX. R. CIV. P. 352-360.

10. Tex. Gov’t Code § 25A.005.

11. TEX. R. CIV. P. 360(a)(1).

12. TEX. R. CIV. P. 360(a)(2).

13. Id. at § 25A.004(a).

14. Id. at § 25A.015.

15. Id. at § 25A.004(b).

16. Id. at § 25A.004(c).

17. Id. at § 25A.004(d).

18. Id. at § 25A.001(14).

19. Id. at § 25A.004(e).

20. Id. at § 25A.004(f).

21. Id. at § 25A.004(h).

22. Id. at § 25A.004(g).

23. Id. at § 25A.006(a); TEX. R. CIV. P. 354(a).

24. Id. at § 25A.006(l).

25. Id. at § 25A.007(a).

26. Id. at § 25A.006(a).

27. Id. at § 25A.006(d); TEX. R. CIV. P. 355(a).

28. Id. at § 25A.006(k); TEX. R. CIV. P. 356(a).

29. Id. at § 25A.006(i).

30. Id. at § 25A.006(j).

By Andrew Pearce

A Better Way:

Harris County’s Felony Mental Health Court

T

he Felony Mental Health Court (FMHC)—one of six specialty courts in Harris County—is described as a “collaborative, problem-solving court in which probationers living with a mental illness adhere to a judicially supervised Re-Entry Plan developed and monitored by mental health professionals.”1 While accurate, this description does not fully convey the full scope of amazing work performed by several individuals and organizations.

The FMHC has existed for a little more than a decade and, more recently, was moved under the umbrella of the Probation Department, along with the STAR Adult Drug Court and the Veterans Court.

These programs exist as part of the Texas Association of Specialty Courts, and similar courts exist across the United States— many of which have looked to Harris County as a model example. The FMHC’s goal is to “ensure public safety and minimize recidivism while diverting defendants with a mental illness from incarceration and instead facilitating linkage to appropriate mental health treatment and community resources.”2 Ms. Giuliana Lozano, LCSW, leads the program as the FMHC’s program manager.

She previously served as both a case manager and a court clinician for the program.

In talking to Ms. Lozano, one quickly appreciates the significance and complexity

of the moving parts necessary to make such a program work. To start, the program is available to individuals charged with a felony offense who have a prior mental illness diagnosis. Defense attorneys or judges are often the catalysts, recommending potential candidates to the ADA’s Mental Health Division. Those candidates must be willing to engage in a risk assessment and clinical evaluation, ongoing mental health treatment, substance abuse treatment (if needed), and compliance with terms of community supervision.

Once approved, the ADA of the Mental Health Division will reach out to the victim to see if they object (which rarely occurs, if ever), and then a court clinician will complete a Texas Risk Assessment, which involves discussions with peer associates and a review of the individual’s history, including mental health and substance abuse issues. Once compiled, the clinician makes a recommendation to the court, including a proposed treatment and/or re-entry plan and possible inpatient, outpatient, or other support. The case manager serves to connect the client with needed community resources. Family engagement is often a key component of the program’s success, as is peer involvement and support among the participants.

In addition to the program manager, the FMHC consists of two court clinicians and one case manager. Participants are required to visit with their probation officer and initially appear in court once a week to ensure they are regularly attending meetings, doctor’s appointments, and support groups. As they demonstrate progress and

stability, court appearances are decreased to biweekly, then triweekly, and so on.

Currently, Judge Brock Thomas presides over the FMHC, with the Harris County Public Defenders Office present at every docket. The Assistant District Attorneys of the Mental Health Division, as well as probation officers, are also heavily involved.

The program is currently serving approximately 81 individuals. After 18 months, a participant’s status is reassessed and he or she becomes eligible to graduate.

Graduation occurs twice a year and, on average, about 20 participants graduate annually. Given the program’s past successes, Ms. Lozano hopes to bring greater awareness to the FMHC and, in turn, to identify more potential candidates.

For those who successfully complete the program and graduate, Ms. Lozano says the research shows there is a reduced chance of recidivism.3 Yet even for those participants who do not graduate, but participate in the program, the likelihood of subsequent arrests is significantly decreased.4 Maybe most rewarding, though, is when graduates of the program occasionally check in to say they are doing well, and they remain thankful for the program. “It gives me goosebumps,” said Ms. Lozano.5 After learning about the program and the meaningful difference made by everyone involved, it is easy to see why.

For more information about the Harris County Felony Mental Health Court, please call (346) 286-5799 or email FMHC@csc.hctx.net.

Andrew Pearce is a member of The Houston Lawyer editorial board and the Litigation Group Chair at BoyarMiller.

Endnotes 1. The Felony Mental Health Court Overview, https://www. justex.net/mh (last visited on September 18, 2024).

2. Id. 3. Interview with Giuliana Lozano, LCSW (September 10, 2024) (on file with author).

4. Id. 5. Id.

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By Dave Louie

ing a firm together. Cara, her husband, my wife, and I sat down, and all four of us were on board. It is our joint creation.

That is meaningful.

Building a Business:

From Big(ger) Law to a Boutique

T

he Houston legal market is filled with “Big Law,” or perhaps more appropriately for this article, “Bigger Law”—firms that taut multiple offices, hundreds of lawyers and staff, and multiple practice areas. These larger firms have their place in Houston, but sometimes lawyers leave to form smaller boutique firms with a more precise practice focus.

Houston is filled with entrepreneurial lawyers eager to build something from the ground up. Even a brief survey reveals dozens of these boutique firms, many born out of “Bigger Law.” Gibbs & Bruns can be traced to Vinson & Elkins.1 The founders of Shipley, Snell & Montgomery came from Baker Botts.2 McDowell Hetherington’s roots link back to Bracewell.3 Hicks Thomas’ founders tie back to Andrews & Kurth (now Hunton Andrews Kurth).4 Entrepreneurialism brings both challenges and rewards. The founding partners of two law firms shared their experiences of leaving larger firms to start their own. One is in its relative infancy, having been founded just eight months ago, as of the time of the interview. The other just celebrated its eighth anniversary. These interviews were edited and condensed for brevity and clarity.

Vasquez Waite Vasquez Waite (“VW”) was founded in 2024 by Cara Vasquez and Mark Waite, who both left DLA Piper (“DLA”) to form their own trial boutique focused on commercial litigation. The change was stark, 14 September/October 2024

going from a multinational, full-service firm with more than 4,500 lawyers globally5 to a single Houston office with five employees (and a dream of growth!). Cara and Mark shared their experiences.

How long were you with DLA? Did you consider lateraling and what made you start VW? Cara: I was with DLA for about 12 years, starting as an intern. I thought of DLA as my forever firm. Mark and I worked a lot together at DLA. We made a great team and worked well together. At some point, Mark and I started thinking about a future after DLA. Lateraling to another firm was not it. I did not want to take on another firm’s culture. We wanted to be business owners. We wanted our own brand.

Mark: I have practiced law in almost every way a lawyer can. I started my career at a small firm decades ago, with great trial experience through the years, went inhouse, and then had another career starting in 2017 at DLA. There was always a nagging desire to have my own shop one day—but only if the timing and circumstances were ever right. The time was finally right.

As great as it would have been to join friends in another small, established firm, there is the risk of having to merge into that culture. Cara and I talked about start-

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What was the most difficult part about leaving DLA and what was the easiest?

Cara: The hardest was the comfort. I had a regular paycheck, a known target for billable hours, and plenty of work. If I needed something overnight, DLA has abundant resources. With a new venture, you do not have that initially.

The easiest part is that there are no more “Sunday scaries.” I have not had this type of joy in my practice in a long time.

We get to develop our practice, focus on the types of clients we want to serve, and build a business every day.

Mark: The hardest is that I was in the early stages of leadership at DLA where I had roles with varied groups of people, committees, etc. Leaving was resetting the decks and giving that up. The good news is that Cara and I are co-chairs of all our committees.

The easiest part is that folks—clients and friends that I have known for years— are picking up the phone more often.

Clients have called with more matters and with major matters, too—the work is there. Big Law is an incredible fit for many matters. There are a lot of matters better suited for a smaller firm with more flexible rates.

How would you describe the culture at VW and how do you maintain it?

Cara: We are still building it, but it is focused on clients, family, and fun. We want to be a respected firm that does not necessarily do it in a traditional way. The fact that my name is first is not traditional. Our logo is not traditional, our website is not traditional.

We place a lot of emphasis on people.

We are focused on knowing our team and clients as whole people. We hired our first associate a few months ago, and we are excited to help her grow as a lawyer and part of the firm. This is not just a job. We want buy-in.

Mark: You can practice law with a lousy attitude and probably make great money.

I do not want to do it that way. We want to bring like-minded people together to build and maintain the culture, and let the success follow. We want to be around people—people who are fun, smart, just good people—and give them opportunities to grow.

What is most rewarding about VW? Cara: Freedom. For example, every new matter that comes in, I can ask “is this work I am excited about?” We decide.

We get to make our day look however we want it to look for clients we want to represent.

Mark: The flexibility to partner with clients on a broader range of matters. There is nothing more fun than high-fiving Cara when new matters come in or when we get a great result for a client.

Cara: Mark really runs in my office and high-fives me.

I would make it the year I left. If I left before, what would people think? “She couldn’t hack it?” “Did she leave because she didn’t make partner?” What would clients think? My good friend, client, and confidant convinced me that I was already doing partner-level work, to bet on myself, and that this was a bold and good move.

Also, office supplies are really expensive.

Mark: Cara and I often disagree, but we usually end up in the same place—that is true about timing, too. My advice is wait until the moment is right. You have to earn your bona fides to open a firm.

Wait until you have the ability to generate your own business. If I did not have the interactions and experience in my career, I would not be getting the opportunities I have now.

When you are joining a firm, you do not necessarily get to choose who you work with. But when you are starting your own firm, you do. Picking who

you practice with is a rare thing in your career. My choice in Cara is someone who doesn’t always agree with me, who has many characteristics I don’t, but we clicked from the beginning. I’m thrilled to have her as a partner as we build this adventure together.

Cara: As we all know, Mark is great too, and I have way more hair than him.

Hicks Davis Wynn In 2016, Pam Hicks, Scott Davis, and Forrest Wynn formed their litigation boutique, Hicks Davis Wynn (“HDW”), after leaving Beirne Maynard Parsons (“BMP”), which was then the largest litigation-only Texas law firm. At its peak, BMP had more than 120 lawyers across Houston, Dallas, San Antonio,

What are some of the most unexpected aspects of VW? Cara: The number of administrative issues, especially in the beginning. We were building furniture, creating signature blocks, dealing with IT. I expected some of that, but the ramp up period was intense. Thank goodness our administrative team was guiding us through the toughest parts.

Mark: Our first outing was going to an office supply store. We were giddy like thirteen-year-olds at a Taylor Swift concert, getting excited about buying office supplies. Who knew? This has been so much fun. On the other hand, one day we ran out of printer paper before a deposition, and I had to walk blocks in the summer heat in my full suit to buy more.

That never happens in Big Law. That was not joyous.

What advice would you give to someone thinking about starting their own firm?

Cara: Perfect timing does not exist. The biggest reservation I had about leaving DLA was partnership. I was fairly certain thehoustonlawyer.com

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and Austin. HDW recently celebrated its eighth anniversary and has grown from the original three lawyers to 12. Pam, Scott, and Forrest shared their insight about the adventure of starting your own firm.

How long were you at BMP? What made you start HDW? Pam: I started as a summer associate in 1997. We started HDW because we wanted to provide clients with the flexibility of a smaller and more dynamic firm. We also wanted the entrepreneurial opportunity. BMP started out of Fulbright and Jaworski as a specialized trial firm. We wanted to do something similar.

Scott: I was there for nine years. I started right after graduating law school. HDW started with talks with Pam about rumored changes at BMP. We talked about options and the conversation led to starting a firm. We both thought Forrest was a great fit to join us, and he was on board. I liked the idea of starting something from the ground up.

Forrest: I started at BMP in 2002. We decided to start HDW where we had a longer future and more control over the work we were doing. I wanted more autonomy with my cases and clients.

What was the most difficult part about leaving BMP? The easiest?

Pam: BMP had a structure in place. I did not have to make sure everyone was billing their time or expenses were paid.

That was hard to leave. I’m involved with things like our lease, banking, or insurance that I wouldn’t handle if I was at BMP. The most difficult part was not seeing the people I saw every day for 18 years. I missed that.

The easiest—or most fun—part was calling the clients to let them know that at our new firm, we had an even greater commitment to their success.

Scott: The most difficult is recruiting and hiring the right people. Fit is important, as is culture. We have been fortunate that we have found so many great people who have fit well. Hiring has been the most 16 September/October 2024

challenging and most rewarding part.

The easiest part is the flexibility to make decisions quickly without the bureaucracy of a larger firm. We are more efficient at decision-making.

Forrest: The most difficult part was the resources. BMP had useful resources. We were surrounded by lots of talent. When we started HDW, we had to put together our own physical materials, like binders.

And I could not just walk into someone’s office to pick their brain.

The easiest part was the work. That did not change; in fact, it was easier. I felt more motivated. It forced me to work all aspects of the case because we did not have the BMP resources.

How important is culture at HDW? How would you describe it and how do you maintain it?

Pam: We all have really different styles and approaches, but we bounce ideas off each other and work from each other’s strengths. We emphasize this with our young lawyers and lead by example.

Lawyers should not be strategizing on a case alone. They should talk to other lawyers to develop ideas. We emphasize working in office to keep that connection with each other and keep developing. We think it is a benefit to our clients to have that interaction.

Scott: Culture is extremely important. It sounds cliché, but it is about teamwork and helping others out. We try to really focus on selflessness, service, and lifting up those around you. When helping others is your priority, you will be successful as a lawyer.

Forrest: We focus on a lot of collaboration and mentoring. We want a good experience for young associates. It is a goal that we always keep. It is not as easy as people like to say it is, but we will not compromise on pursuing it.

What is most rewarding about HDW? Pam: I have really liked seeing the next generation of lawyers that we are practicing with and developing. They are part of our team and people we can rely on.

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Scott: The freedom and ability to steer the firm in the direction we want with culture and staying client-focused. We get to take the work we want to take and do not have to be so revenue-focused.

Forrest: The most rewarding part is we are involved in all aspects of the firm, whether it’s resolving cases, hiring, or working on the office lease. There is a level of satisfaction and reward that comes with this level of involvement.

What advice would you give to someone thinking about starting their own firm?

Pam: Make a very detailed plan. Stick with your plan but be ready to pivot if it is not working. To be good in this business, you have to love what you do. Also, you want to have good partners.

Scott: Make sure you have a business plan. If you have the client relationships and can maintain the same level of service for your clients, do not be afraid to make the leap. Fear of the leap is the biggest hurdle. Bet on yourself and partners that you are starting your firm with. I will bet on Pam and Forrest all day.

Forrest: Make sure you know exactly what it is you want to do as a firm. Be certain you and your partners share that belief and that it is clear what that agreement is. You are all taking a gamble, so ensure you are on the same page. You cannot say “we’ll figure this out next year.” You have to say, “This is how we’re doing this today and tomorrow.” It will not always be perfect, but you cannot succeed if you do not start on the same page. If there was a single strength of our firm, it is trust among the partners. We really trust and rely on our partnership to cover our weaknesses.

What advice would you give to your 2016 self?

Pam: What motivates me is not necessarily what motivates other people. If I want people to be their best, I need to understand what motivates them.

Scott: It is all going to be good, do not stress so much and do not be so scared of making the leap. I wish I knew how

much fun this was going to be. It is more fun than I could have imagined, working every day with your close friends, both our coworkers and our clients.

Forrest: I wouldn’t change a thing. I would probably just tell myself to stick with it, keep your head down, and keep going. Sometimes I think it would have been easier if we had more resources, but I am always much happier when I come out on the other side.

Dave Louie is lead counsel with LyondellBasell, a global petrochemical company, and an editorial board member for The Houston Lawyer.

Endnotes 1. https://www.gibbsbruns.com/people/rgibbs/.

2. https://www.law.com/texaslawyer/almID/900005446572/.

3. https://mhllp.com/attorney/thomas-f-a-hetherington/.

4. https://www.hicks-thomas.com/recent-news/1997/may/ andrews-kurth-losing-10/.

5. https://www.law.com/law-firm-profile/?id=242&name= DLA-Piper%2F .

Established a decade ago, Arnold & Porter’s Houston office provides critical national and cross-border litigation, regulatory, and transactional capabilities to clients in Texas and around the world.

Learn more about our globally integrated law firm at arnoldporter.com

©2024 Arnold & Porter Kaye Scholer LLP. All Rights Reserved.

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September/October 2024

17

Practical Legal Advice for Small Business Owners

By Carey Worrell

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Introduction ccording to the Small Business Administration, Texas is home to 3.5 million small businesses employing 5 million people.1 While any business with fewer than 500 employees qualifies as a “small business,” the vast majority of these businesses employ fewer than 20 employees. For many small business owners, their business represents their life’s work, as well as a large portion of their net worth and the legacy they plan to pass to their heirs. The margins are often tight, and the owners are often experts in their fields with limited exposure to training in business ownership and management. The owners typically have limited experience working with attorneys, and as a result, they frequently form their own entities without legal advice or input.

As long as everything runs smoothly, and the owners get along until the final days of the company, this may not be a problem, but as lawyers are well aware, things don’t always run smoothly.

In an ideal world, an aspiring business owner would consult with an attorney prior to launch in order to determine the best way to structure the entity and outline its governance—including the roles and relationships of all stakeholders. For large businesses and savvy entrepreneurs, consulting with attorneys is standard practice. But for the plumber who has started their own business or the chef who has 18 September/October 2024

opened a restaurant, the first time they even consider the existence of an operating agreement or the importance of corporate governance is when a dispute has arisen, and their life savings are on the line. By that point, it is often too late for a lawyer to help.

As an attorney providing advice to small businesses on a daily basis, I have come to see the importance of competent and experienced attorneys making their services available to small businesses—the ones who are not normally courted by big law firms and who may run wildly profitable companies without any regard for legal formalities. I have also seen that this area of law can be learned fairly easily, and services can be provided to business owners who truly need them in a way that is profitable for the attorneys providing the service.

Below are contributions from a seasoned business attorney and probate attorney offering practical advice to other lawyers who may have never practiced in this area, but likely encounter small business owners in their personal lives on a fairly regular basis. Cody Dumas, a partner at DumasNeel, offers a list of best practices on how to advise clients setting up their business for the first time. Alisa Hoggatt, owner and principal attorney at Heirloom Legal, offers insight on how small businesses can be protected in the probate process after the death of an owner, so that the lifetime of work can be passed to the next generation. Based on my own experience, I encourage all Houston lawyers to educate themselves in this area so that they can provide advice or referrals to business owners in dire need of the advice of counsel.

Carey Worrell is the CEO and managing attorney of SimpleLawTX, where they specialize in offering efficient legal solutions for small businesses and individuals in the areas of business, real estate, estate planning, and probate.

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Best Practices in Corporate Formation

By Cody Dumas

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orming a business can be an immensely rewarding venture, but it demands meticulous planning, especially when ownership interests or other business entities are involved.

Establishing a strong legal foundation through comprehensive ownership agreements or company agreements is vital to safeguarding the interests of all parties and reducing the risk of future legal conflicts. Key issues that must be addressed include (1) the delineation of roles and responsibilities, (2) compliance with legal requirements, and (3) the implementation of effective dispute resolution mechanisms.

One of the most critical components in forming a business is ensuring that the roles of each owner or manager are clearly defined. This prevents confusion and minimizes the potential for future disputes. Ownership interests must be precisely documented in the agreement, regardless of the percentage breakdown.

Additionally, the agreement should detail each party’s duties, responsibilities, and decision-making authority. For example, the agreement should specify who will manage daily operations, who has the authority to execute contracts, and how major decisions—such as acquiring new assets—will be handled.

Another fundamental consideration is the management structure of the business. In the case of limited liability companies (LLCs), it is essential to decide whether the business will be member-managed or manager-managed.

These two structures have distinct implications for governance and decisionmaking, and it is imperative that clients understand the differences before filing organizational documents with the Secretary of State. In a member-managed LLC, the owners collectively handle the day-to-day operations, often pursuant to specific agreements designating responsibility among the members. Conversely, in a manager-managed LLC, one or more individuals are appointed to manage the company, and members are typically restricted from interfering in the company’s operations. However, members retain the right to vote on certain significant actions, as mandated by the Texas Business Organizations Code (TBOC).

Such actions generally involve matters that directly impact ownership equity, such as a company sale or dissolution.

It is equally important to address how changes to the management structure will be handled, including when and how management can be altered and by whom.

Drafting a detailed operating agreement is essential for minimizing conflicts and facilitating efficient resolution when disagreements arise. One of the key considerations during this process is determining the voting thresholds required for various decisions, whether a simple majority, supermajority, unanimous consent, or another arrangement.

Addressing these issues upfront helps streamline operations and reduce the risk of disputes. The agreement should also clearly define voting rights, including whether votes are based on ownership percentages or some other method.

For corporations, it is crucial to include provisions regarding shareholder voting rights, as well.

Given that conflicts are inevitable in any business, it is vital to establish a dispute resolution mechanism in advance. A well-crafted agreement should specify how disputes will be resolved, often including mediation clauses that require owners to attempt mediation before resorting to litigation. Mediation

onboarding and offboarding owners are can be faster, less expensive, and less critical to maintaining business stabiladversarial than court proceedings. In ity and avoiding legal concases where owners are deadflicts. The process for adlocked on a significant issue, mitting new owners should the agreement should include be carefully outlined, ina mechanism to resolve the Forming a cluding how new contribuimpasse, such as bringing in a third-party mediator, allowbusiness can be tions, whether financial or sweat equity, will be valued ing a trusted advisor to make an immensely and how ownership interthe final decision, or setting up a buy-sell arrangement rewarding ests will be adjusted. Similarly, the agreement should where one party buys out the venture, but it address how departing other. While alternative disdemands owners will be handled, inpute resolution methods are generally preferable, there meticulous plan- cluding buyout provisions, non-compete agreements, should still be provisions for ning, especially and the treatment of intellitigation as a last resort, including specifying the juriswhen owner- lectual property or trade secrets. In some cases, an diction and venue where any ship interests or owner may wish to transfer legal disputes will be heard.

As a business grows, the other business their ownership interest to a third party. Including a need to bring in new ownentities are right of first refusal clause ers or manage the departure of existing owners will ineviinvolved.” in the agreement gives existing owners the option to tably arise. Clear procedures for

‘‘

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purchase the departing owner’s interest before it is sold to an outsider, thereby preventing unwanted third parties from entering the business. Additionally, the agreement should address the “three Ds”: death, divorce, and disability—common scenarios that can impact ownership equity and necessitate a transfer of interests.

Implementing sound governance practices is also essential for ensuring the long-term success of the business, especially as it grows and becomes more complex. Regular meetings of the owners or board of directors should be scheduled to review the business’s performance, address challenges, and make key decisions. These meetings should be documented in minutes that are maintained as part of the company’s official records. In addition, clear policies and procedures for business operations— including financial controls, employee management, and risk management— should be developed to promote consistency and protect the company from potential liability. Establishing ethical standards through a code of conduct for owners and employees can further foster a culture of integrity and reduce the likelihood of misconduct that could harm the business.

In short, forming a business and drafting ownership or company agreements requires careful consideration of a wide range of factors, from legal and tax implications to dispute resolution and governance practices. By listening to your client’s objectives and guiding them through the relevant provisions, you can help ensure that their business is wellprepared to navigate the challenges of growth and success.

Cody Dumas is a partner at DumasNeel and a seasoned corporate attorney specializing in entity structuring, governance, intricate transactions, and comprehensive business litigation.

20 September/October 2024

Probate Preparedness:

Key Considerations Probate Attorneys Want Business Attorneys to Know

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By Alisa Hoggatt ddressing estate planning and probate considerations upfront, while forming the entity and drafting and negotiating operating agreements and their provisions, can help business attorneys better serve their clients and protect their client’s business after a business owner has passed away.

Discussed below are ten key considerations to discuss with your client and keep in mind as you form small businesses: 1. Ownership Transfer—The deceased owner’s ownership interest in the business will need to be transferred at their death. Will it go to their heirs or beneficiaries or potentially be bought by the remaining owners or company? How will you plan for that? Will there be any limitations on who the owner can transfer their interests in an operating agreement or buy-sell agreement?

2. Operational Disruption—The sud-

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den loss of a key owner can cause significant operational disruptions, as the remaining owners must take on additional responsibilities or potentially find temporary (or even permanent) replacements. Are they prepared to find additional help or take on those responsibilities? Do they understand what the other owners of the business do on a dayto-day basis to address this?

3. Financial Impact—The deceased owner’s share of business profits, capital, debts, and other financial obligations will need to be accounted for and dealt with by the business and the remaining owners. This can strain the company’s finances. Do the owners have a relationship with a commercial banker and/or financial advisor to discuss and plan for how they will deal with these issues?

4. Succession Planning—Part of your advising must include a discussion on a clear succession plan, whether through a buy-sell agreement or by including provisions within the business’s operating agreement.

These agreements should deal with how, when, and to whom the business owners can dispose of their interest in the business upon their death. Do your business owners want to require the business or the other owners to buy back the business interests? Are they okay with an unknown (even if related to the deceased owner) new owner? Depending on the type of business, the remaining owners may need to quickly determine how to move forward with the business. Will they buy out the deceased business owner’s share of the business? If so, how will they pay for that? Should there be a right of first refusal included? Work with clients to have a clear plan for transferring ownership and control of the business upon the owner’s death or incapacity/disability.

5. Probate Process—Texas does not have “transfer on death” or beneficiary designations for business interests as we do for financial accounts, retirement accounts, or life insurance. Unless the operating agreement or buy-sell agreement permits the deceased owner to transfer their interest in the business into a revocable living trust and the owner appropriately funds it, the deceased business owner’s estate will have to go through probate to handle the disposition of their interest in the business. That can be a lengthy and complex legal process. Anticipate and plan for potential will contests, trust disputes, or other conflicts that can arise during probate and impact business interests. This may impact the business’s operations and finances.

6. Estate Planning & Incapacity Planning—A good rule of thumb is that each business owner should have an estate plan. Ensure clients have up-to-date wills, trusts, powers of attorney, and other essential estate planning documents in place. This can help streamline the process after a business owner has passed away or if they become incapacitated. Familiarize yourself with Texas’ probate timelines and deadlines to ensure compliance and avoid delays. Proper titling of business interests, real estate, bank accounts, and other assets can either facilitate or complicate the probate and estate administration process.

7. Creditor Claims—Creditors of the deceased owner may make claims against the business requiring careful management.

8. Emotional Toll—The unexpected loss of a business owner can be extremely difficult for the remaining owners, both emotionally and in terms of managing the business.

These are not easy conversations to have on the front end, but after a death, people grieve differently.

Be prepared to have hard conversations with your business owners.

9. Valuation Disputes—Unless the operating agreement or buy-sell agreement has clear valuation provisions, disagreements may arise over the valuation of the deceased owner’s ownership stake, leading to legal battles. When drafting an operating agreement consider including specific criteria on how a business will be valued in the future or whose opinion on value will be acceptable.

10. Tax Implications—Be aware of the tax consequences, both for the estate and any beneficiaries, that can arise during the probate process.

This may include consulting with a tax attorney regarding income, capital gains, and estate taxes.

Unfortunately, in life, it’s not a question of if a business owner will pass away, but when, and it is always better to have a plan in place to deal with life’s

uncertainties and the impact they can have on one of the client’s likely largest assets—their business. To be prepared, business owners should have comprehensive agreements that address these issues in advance. Regular reviews and updates of these agreements are also crucial and recommended.

Alisa Hoggatt is the owner and principal attorney of Heirloom Legal. She concentrates her practice in estate planning, probate, business law, and tax law. She uses her LLM in Tax to help her clients navigate various federal tax considerations in estate planning and estate administration.

Endnotes

1. US Small Business Administration Office of Advocacy 2023 Small Business Profile for the States, Territories, and Nation—Texas at 1, https://advocacy.sba.gov/wp-content/uploads/2023/11/2023Small-Business-Economic-Profile-TX.pdf (last visited August 22, 2024).

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By Fermeen Fazal

How Loper Bright Changed the Chevron Doctrine, Why it Matters, and What Happens Next

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or almost 40 years, courts have relied on the “Chevron Doctrine”1 to defer to a federal agency’s reasonable interpretation of an ambiguous statute. This principle of deference is named after the 1984 U.S. Supreme Court case styled Chevron v. Natural Resources Defense Council,2 and, until recently, had been well-settled legal precedent. However, the Chevron Doctrine was overruled this summer by the Loper Bright case,3 and it is unclear what the long-term impact of this departure from the Chevron Doctrine will be.

What we do know, in the short-term, is that business planners thrive with predictable outcomes, and without the Chevron Doctrine, the outcome of future cases involving the agency interpretation of a statute is not as clear as it once was. For both in-house lawyers and outside counsel that advise business teams on how to plan for and manage risk, a regulatory scheme that is uncertain makes the attorney’s job more challenging. Given that there are more than 430 federal agencies in the United States with a wide variety

of regulatory power and given that Texas houses the most Fortune 500 company headquarters of any state in the nation, it’s quite likely that Houston lawyers will have to think through how the changes to the Chevron Doctrine impact clients.

Federal agencies have the power to develop and issue substantive rules and regulations. An agency’s substantive rules have the force of legislation because they are legally binding on the courts and the public. But an agency can only issue substantive rules when it has statutory authority, and the scope of Congressional authority given to an agency for substantive rulemaking can vary.

The 1946 Administrative Procedure Act (APA) governs the process of substantive rulemaking.4 Under the APA, an agency begins the process of rulemaking by issuing a notice of proposed rulemaking (NPRM). The notice and text of the proposed rule is published with a deadline for comments in the Federal Register. Interested parties can file comments, critique any analysis included to justify the proposed rule, or answer questions the agency has posed. This process serves as a sanity check on the proposed rule and is an important due process step that puts the public on notice, with an opportunity to weigh in formally through comment, or informally through its legislators. The APA requires that an agency’s decision on the final language must be reasonable, taking into account the comments, scientific data, and facts accumulated.5 Agencies submit the final rules to Congress before the rule is codified in the Code of Federal Regulations with an effective date.

One way that rules can be challenged in court is if a party alleges the rule is arbitrary or capricious, which is what happened in Chevron v. Natural Resources Defense Council. In that case, the Clean Air Act of 1977 (CAA) authorized the Environmental Protection Agency (EPA) to impose requirements on states that had not met national air quality standards.

The CAA said that states that had new,

major “stationary sources” of pollution were required to seek a permit, and so the EPA promulgated regulations to implement the permit requirement and defined “stationary source” in greater detail.

These actions were challenged. The D.C. Circuit Court of Appeals set aside the regulations because the CAA did not explicitly define what Congress envisioned as the “stationary source” to which the permit program would apply. The U.S. Supreme Court upheld the regulations and definition, and created what became known as the Chevron Doctrine, concluding that when a statute is silent or ambiguous (and here, “stationary source” was not defined in detail by the statute), the agency can fill any gap left in the statute when Congress authorized the agency to do so. The U.S. Supreme Court concluded the courts should give the agency deference, so long as the interpretation used by the agency was reasonable and not arbitrary and capricious, if Congress did not directly speak to the precise question at issue.6 The Court reasoned that judges are not experts in the field the way an agency is, and if Congress chooses to delegate its policymaking authority, it is “entirely appropriate” for agencies to make such policy choices.

For years, federal courts relied on the Chevron Doctrine to defer to an agency’s reasonable interpretation of an ambiguous statute and fill in the gaps where the statute was silent. The Chevron Doctrine has been cited more than 18,000 times.

Because broad statutes are susceptible to a variety of reasonable interpretations, agency rules and guidance were very useful in understanding a statute’s reach, and the Chevron Doctrine remained a bedrock principle of administrative law for many years.

Then, last year, in Sackett v. EPA,7 the U.S. Supreme Court considered a case involving the Clean Water Act, which protects the “waters of the United States.”

The EPA interpreted this language to include wetlands, marshes, and tributaries, but some argued that the EPA should only

have jurisdiction over “navigable waters.”

In 2015, the EPA published a clarifying rule that specifically included wetlands.

In Sackett, the U.S. Supreme Court ruled that the wetlands did not qualify for protection under the EPA because the wetland at issue did not connect at its surface to another body of federally protected water. In other words, the Court found the EPA’s definition of wetland was not reasonable. For the first time, the U.S. Supreme Court seemed to be shifting from Chevron deference to require “clear evidence” that Congress authorized the agency to regulate in the manner it proposed. “Clear evidence” was a more stringent standard, requiring an increased level of judicial scrutiny than the “reasonableness” test in the Chevron Doctrine, which meant judges had to look more carefully at the statutory language, legislative history, and reasoning behind an agency’s interpretation instead of giving automatic deference. Following Sackett, the stage was set to recalibrate

the relationship between the courts and federal agencies.

On June 28, 2024, the Court decided Loper Bright, which changed the landscape of administrative law. That case involves a rule published by the National Marine Fisheries Services (NMFS), a subsidiary of the Department of Commerce, which gets its power from the Manguson-Stevens Fishery Conservation and Management Act of 1976 (MSA). The MSA says that the NMFS may require fishing vessels to carry federal monitors to ensure there is no overfishing, but the statute is silent as to who must pay for the monitors. The NMFS published a rule that required the fishing industry to fund the monitoring. Loper Bright Enterprises (“Loper Bright”) is a small herring fishing company. Because it could not afford the $700 per day it would cost to have a federal observer on the boat, Loper Bright sued, alleging that the MSA did not explicitly authorize the NMFS to mandate industry-funded monitors. The district

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guidance as the gospel. But that conclucourt, applying the Chevron Doctrine, sion assumes the regulated entity does not granted summary judgment in favor of have a well-functioning agency providthe NMFS. The D.C. Circuit Court of Aping guidance and ignores that the heads peals affirmed, concluding that while the of agencies generally change every four statute was ambiguous as to the funding years. The reality is that the dismantling mechanism, the NMFS’s interpretation of of the Chevron Doctrine could be seen the statute was reasonable. as shifting power from federal agencies The U.S. Supreme Court reversed. The and giving it to the courts, but in doing majority opinion, written by Chief Jusso, it increases uncertainty for existing tice Roberts, concludes that under the regulations and brings the potential for APA, courts have the responsibility to deincreased litigation. cide whether the law means Before Loper Bright, bewhat the agency says. Citing cause courts gave so much Marbury v. Madison, the madeference to agency rules jority reasoned that to hold Many assume and guidance, even if otherwise would violate the Separation of Powers Docthe death of the the agency positions and regulations were cumbertrine. Justice Gorsuch conChevron Docsome to interpret or apply, curred, noting that courts should resolve such cases trine benefits businesses could adjust their without any “systemic bias in regulated enti- practices and make plans based on the regulations, the government’s favor.” He ties who will no with some certainty that the said the Court was placing “a tombstone on Chevron no one longer have to agency positions would not be overruled, at least for the can miss.” In his concurrence, accept an agen- four years that the president Justice Thomas opined that by transferring a power comcy’s guidance as was in office. For example, if the Department of Energy mitted to the federal courts the gospel.” took a year (on average) to into the hands of the execuapprove a new pipeline pertive branch, the Chevron Docmit, while an oil and gas operator may trine runs afoul of the Constitution. have been frustrated with that timeline, Justices Kagan, Sotomayor, and Brownit could proceed with construction and Jackson dissented, noting that the Chevprocurement plans once it had the perron Doctrine of deference reflects Conmit, knowing that if someone challenged gressional intent. The dissent reasoned the issuance of the permit, the Chevron that Congress knows there will be some Doctrine meant that it was unlikely the ambiguities in statutes when they are agency action would be reversed. That is passed but leaves the details to be filled no longer the case. in by agencies, as they have expertise in Of course, businesses certainly saw agenthe minutiae of those areas that Congress cy priorities change between the Obama, and courts do not. They further opined Trump, and Biden administrations, but a that agencies report to the president, who regulated entity only had to try to predict answers to the people, as do members of what might change with new agency apCongress, but courts have no such acpointees by the executive branch every countability. Finally, the dissent argued four years. Now, things are moving more that the Chevron Doctrine is “entrenched swiftly. On July 1, 2024, the U.S. Supreme precedent, entitled to the protection of Court decided the Corner Post case, which stare decisis” and that the majority was held that an APA claim accrues when a grasping for power. plaintiff is injured by an administrative Many assume the death of the Chevron agency’s action.8 Thus, even if regulations Doctrine benefits regulated entities who will no longer have to accept an agency’s were promulgated much earlier, injured

‘‘

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parties may only have six years to challenge them from the time of injury. With every agency action subject to challenge, there will likely be a rush to the courthouse to test the waters for the next year or two. Dismantling the Chevron Doctrine leaves things uncertain, because instead of trying to predict how one agency will view an issue, regulated entities will likely have to attempt to predict how a variety of courts in different circuits will view an issue. There may be more circuit splits as judges make different calls on legislative intent. This means appeals will increase, and it will take longer to have final guidance. And, while courts are the experts in the law, they will never be as knowledgeable about the esoteric scientific details surrounding environmental legislation as the EPA would be, for example, and so it is likely that litigation costs will go up as expert witnesses will need to educate the judiciary. Impacted parties are not even waiting to challenge agency rules in court.

For instance, in July 2024, citing the Loper Bright case, the Air Force refused to comply with an EPA order that required it to develop a cleanup plan for drinking water near Tucson, Arizona, after the groundwater in the area was contaminated by runoff from nearby Air Force bases.9 With the Chevron Doctrine gone, Houston lawyers have a small sneak peek as to how to think about Loper Bright, as the Fifth Circuit is the first circuit in the country to evaluate an agency rule in the postLoper Bright era. On August 23, 2024, the Fifth Circuit considered a rule promulgated by the Department of Labor (DOL) under the authority granted to it by the Fair Labor Standards Act (FLSA).10 The case concerned the “tip credit,” where an employer can pay tipped employees $2.13 per hour, below the current minimum wage of $7.25 per hour. If the difference in wages is not covered by tips, then the employer must pay the remainder to make sure the tipped employee makes at least minimum wage. The DOL promulgated a rule that prevented an employer from taking the tip credit for any time an employee spent on work that was not a part of the tipped

occupation, such as when a waitress is clearing a table or refilling the condiments. The Texas Restaurant Association filed suit to enjoin the DOL’s rule. The Fifth Circuit, citing Loper Bright, found the DOL’s rule was arbitrary, capricious, and contrary to the plain meaning of the FLSA statutory text. The court explained that the dispute turned on the meaning of the term “occupation,” which is used in the definition of “tipped employee,” but is undefined in the FLSA. Time will tell whether Loper Bright’s impact will be gradual or all encompassing, but courts, including the Fifth Circuit, have started reviewing statutes under the new scheme. One thing that is certain, however, is that Loper Bright will likely change how Congress writes statutes. The public has complained for years about the detail and red tape in statutes like the tax code. Going forward, the Legislature will have to use even more precise language and give very specific authorizations to agencies, as courts will be carefully studying the statutory text to determine legislative intent, as they scrutinize agency actions.

Fermeen Fazal is a graduate of the University of Houston Law Center.

The opinions expressed in this article are her own.

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Endnotes

1. Also known as “Chevron deference.”

2. 467 U.S. 837 (1984).

3. Loper Bright Enterprises v. Raimondo, No. 22-451, 603 U.S ___ (June 28, 2024). A companion case, Relentless, Inc. v. Department of Commerce, No. 22-1219 (June 28, 2024) was also decided on the same day.

4. 5 U.S.C. § 551.

5. Id. § 533(b)-(c).

6. The test is sometimes called the Chevron Two-Step. First, the court must determine if Congress has directly spoken to the precise question at issue. If Congress has, the court must follow the expressed Congressional intent. If Congress did not speak to the precise issue, then, rather than imposing its own interpretation of the statue, the courts will defer to the agency’s interpretation, as long as it is reasonable.

7. 591 U.S. 693 (2023).

8. Corner Post, Inc. v. Bd. of Governors of the Fed. Reserve Sys., No. 22-1008, 603 U.S. ___ (July 1, 2024).

9. Tom Perkins, US air force avoids PFAS water cleanup, citing supreme court’s Chevron ruling, THE GUARDIAN (Aug. 12, 2024), https://www.theguardian.com/us-news/article/2024/aug/12/airforce-epa-water-pfas-tucson.

10. Restaurant Law Center v. U.S. Dep’t of Labor, No. 23-50562 (Aug. 23, 2024).

John Charbonnet

John A. Davis

Claire Parsons

Charles Peckham

Kathryn Green

Sam Houston

Mary Martin

David Siegel

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Online Mediation Calendar

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Benefiting Houston Volunteer Lawyers Monday, November 11, 2024 · 7:00 – 10:00 p.m.

River Oaks Country Club

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

Thank you to the underwriters of the 75th Annual Harvest Celebration (as of September 30, 2024).

To learn more about sponsoring the Harvest Celebration, visit hba.org/harvest.

Diamond Sponsors

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

Ruby Sponsors

Benny Agosto, Jr. & Nikki Agosto Akin Gump Strauss Hauer & Feld LLP AZA Chevron Corporation HBA Litigation Section

Sapphire Sponsors

BakerHostetler LLP Blank Rome LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Harris County District Attorney’s Office LyondellBasell Industries Morgan, Lewis & Bockius LLP Winston & Strawn LLP

Jones Day Kirkland & Ellis LLP Liskow McGuireWoods LLP O’Melveny & Myers LLP Pillsbury Winthrop Shaw Pittman LLP Quanta Services Quinn Emanuel Urquhart & Sullivan; Karl Stern Ryan & Dawson Shipley Snell Montgomery LLP Shook Hardy & Bacon L.L.P. SLB Steptoe Susman Godfrey LLP Weil, Gotshal & Manges LLP Wright Close & Barger, LLP Yetter Coleman LLP

Bronze Sponsors

Katie & Stephen Baehl Baker Wotring LLP Bissinger, Oshman, Williams & Strasburger LLP Bradley Arant Boult Cummings LLP Burford Perry, LLP Christian Attar Clark Hill Gold Sponsors Cokinos | Young Arnold & Porter LLP Coné PLLC Beck Redden LLP Collin & Jacquelyn Cox HBA Labor & Employment Section Crowe LLP Hicks Thomas LLP Dentons US LLP Johnson DeLuca Kurisky & Gould, P.C. Dobrowski Stafford & Pierce LLP King & Spalding LLP Duane Morris LLP Latham & Watkins LLP Energy Transfer W. Michael & Laurie D. Moreland Fogler, Brar, O’Neil & Gray LLP Spencer Fane Frost Brown Todd LLC Kerry Galvin Silver Sponsors Gerger Hennessy Martin & Peterson LLP Abraham, Watkins, Nichols, Agosto, Germer PLLC Aziz & Stogner Gray Reed Barry & Sue Abrams Hagans Jane & Doug Bland David & Tammie Harrell ConocoPhillips Harris County Attorney’s Office Diggs & Sadler Hon. Kristen Hawkins Foley & Lardner LLP HBA Energy Law Section Gibbs & Bruns LLP HBA Federal Practice Section Gibson, Dunn & Crutcher LLP Hispanic Bar Association of Houston Penny L. & Craig B. Glidden HKA Tom & Debbie Godbold Hogan Thompson Schuelke LLP Halliburton Houston Lawyer Referral Service, Inc. Haynes and Boone, LLP HBA Alternative Dispute Resolution Section Houston Young Lawyers Association Husch Blackwell LLP HBA Family Law Section Jackson Walker LLP HBA Real Estate Section Jenkins & Kamin, LLP Linda & Tracy Hester Jim Adler & Associates Hicks Davis Wynn, P.C. Kane Russell Coleman Logan PC JAMS 26 September/October 2024

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Kean Miller Mahendru, PC McDowell Hetherington LLP Audrey Momanaee Munck Wilson Mandala Munsch Hardt Kopf & Harr, P.C. Okin Adams Bartlett Curry LLP O’Neil Wysocki, PC Jeff Paine & Brandon Holcomb (Goldman Sachs) Nicole Perdue & Jim Perdue, Jr. Phillips 66 Company Plains All American Pipeline, L.P. Porter Hedges LLP Rapp & Krock PC Reed Smith LLP Reynolds Frizzell LLP Rusty Hardin & Associates, LLP Skadden, Arps, Slate, Meagher & Flom LLP South Texas College of Law Houston University of Houston Law Center Vasquez Waite PLLC Vorys, Sater, Seymour and Pease LLP Womble Bond Dickinson (US) LLP

Crystal Sponsors

Anna Archer Sharon M. Beausoleil Kathleen & Martin Beirne Brent & Christy Benoit Susan L. Bickley & Bob Scott Bragg Law PC Sejal Brahmbhatt Hon. Harvey Brown Keri Brown & Ben Womack The Buck Family Fund Hon. Brett & Erin Busby Bush Seyferth PLLC BWA Video, Inc. Cozen O’Connor David Toy Law Firm Mindy & Joshua Davidson Wendy & Alistair Dawson Digital Insurance, LLC dba One Digital Amy Catherine Dinn Emma Doineau Eric & Kami D’Olive Carter Dugan Kaylan & John Dunn Duvera Consulting, LLC Andrew Edelman Scott Ellis Ali Foyt Todd Frankfort Jackie & John Furlow Lynn & Stewart W. Gagnon Roland Garcia Gregory Law PLLC

Hon. Michael Gomez & Diana Gomez Hon. Joseph “Tad” Halbach Harris Hoss Mediations & Arbitrations David T. Harvin Gregory & Jennifer A. Hasley HBA Appellate Practice Section HBA Bankruptcy Section HBA Commercial & Consumer Law Section HBA Construction Law Section HBA Criminal Law Section HBA Juvenile Law Section HBA Mergers & Acquisitions Section HBA Taxation Section HBAA Charitable Fund, Inc. Hirsch and Westheimer P.C. Jim & Cisselon Nichols Hurd IMS Legal Strategies | Juris Medicus Monica Karuturi & Kumaran Sathyamoorthy Shae Keefe & Mark Jacobs Sara & Jason Keith Neil & Dana Kelly Elizabeth & Bill Kroger Daniella D. Landers James Leader Elizabeth & Russell Lewis Peter Lowy & Gabriela Boersner Hon. Erin Lunceford & Mike Lunceford Hon. Sylvia Matthews Tim & Ginnie McConn McGarvey PLLC Hon. David M. Medina (Ret.) and Hon. Pamela Medina MehaffyWeber PC Hon. Margaret Mirabal Carol Jean & Mike Moehlman Hon. Daryl L. Moore

Greg & Jennifer Moore Nathan Sommers Gibson Dillon PC Holly Nini Stephanie Noble Christopher Northcutt Jeff & Melissa Oldham Olson & Olson, LLP Robert & Taunya Painter Dr. & Mr. Christine & Seepan Parseghian Connie H. Pfeiffer Colin & Sangita Pogge Hon. Margaret Poissant Chris Popov Kelly & Mike Prather Quadros Migl & Crosby PLLC Aaron M. Reimer & Amanda Heidemann Reimer Hon. Frank Rynd Travis & Sandy Sales John & Denise Scofield Kay Sim Tramaine Singleton Quentin & Aerin Smith Hon. Susan S. Soussan Sponsel Miller Greenberg PLLC The Springer Law Firm, PLLC Steven C. Howard P.C. Terry G. Fry, P.C. & Gina Lucero The Law Office of Daniel D. Horowitz, III, PC Brooks & Jacquelyn Tobin Samantha Torres & Jimmy Hollowell Hilary Tyson Sandy & Greg Ulmer Roy & Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP

West Mermis, PLLC Richard & Laura Whiteley Andrew Yeh & Ann Elise DeBelina Ytterberg Deery Knull LLP Krisina Zuñiga & Rick Houghton

Friend Sponsors

Hon. Terry Adams Hon. Julie Countiss Patrick Flynn Polly & Stephen Fohn HBA Corporate Counsel Section HBA Probate, Trusts & Estate Section Law Office of Frederick J. Wagner Sylvia Mayer with S. Mayer Law Hon. Veronica Rivas-Molloy & David Molloy Jane Langdell Robinson Hon. Robert Schaffer Hon. Jerry Simoneaux Hon. Charles Spain & John Adcock Hon. Cheryl Elliott Thornton Travis Torrence

Other Sponsors

Anthony & Antoinette Franklyn Claudia Wilson Frost Hon. Tanya Garrison HBA Environmental Law Section In honor of Vinh Ho Kevin Pennell, Pennell Law Firm, PLLC Brannon Robertson

In-Kind Sponsors

Innovative Legal Solutions

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Thank You

to the HBA, HBF, and HVL Board Members for Their Service and Support of the 75th Annual Harvest Celebration!

Mariame Aana Benny Agosto, Jr. Jill Arntz Katie Baehl Brooksie Boutet Melanie Bragg Sejal Brahmbhatt Keri Brown Collin Cox Alistair Dawson Emma Doineau

Carter Dugan Kaylan Dunn Andrew Edelman Scott Ellis Todd Frankfort Jacqueline Furlow Diana Gomez David Harrell Jennifer A. Hasley Linda Hester Monica Karuturi Sara Keith

Daniella Landers Jamie Leader Peter Lowy Cassandra McGarvey Audrey Momanaee Greg Moore Holly Nini Stephanie Noble Christopher Northcutt Jeffrey Oldham Robert Painter Seepan Parseghian

Colin Pogge Chris Popov Aaron Reimer Travis Sales Hon. Jerry Simoneaux Tramaine Singleton Samantha Torres Greg Ulmer Richard Whiteley Andrew Yeh Krisina Zuñiga

Leading the Way King & Spalding proudly supports the Houston Bar Association in its vital mission to serve the needs of Houston-area lawyers and enhance the legal profession. kslaw.com 28 September/October 2024

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

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Angela Solice, Attorney at Law Archie Law PLLC Baker Botts L.L.P. BakerHostetler LLP Baker Hughes Balch & Bingham LLP Beck Redden LLP Blank Rome LLP Bracewell LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Coane & Associates Dentons US LLP Elizabeth S. Pagel, PLLC Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Hasley Scarano, L.L.P. Haynes and Boone, LLP Hunton Andrews Kurth LLP Jackson Walker LLP Jenkins & Kamin, LLP Jeremy Northum, Attorney at Law

King & Spalding LLP Kirkland & Ellis LLP Law Office of Cindi L. Rickman Law Office of Norma Levine Trusch Law Office of Robert E. Price Law Offices of Omonzusi Imobioh Limbaga Law Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright O’Melveny & Myers LLP Painter Law Firm PLLC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell USA, Inc. Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Sorrels Law Squire Patton Boggs The Ericksen Law Firm The Jurek Law Group, PLLC Travis Bryan Law Group, PLLC Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP

OFF THE RECORD

Mekisha Jane Walker:

M

But, Why Did You Stay?

The Houston Lawyer

By Jessica Crutcher

ekisha Jane Walker is a 2002 graduate of South Texas College of Law Houston, a four-year veteran of the Harris County DA’s office, and an owner of her own criminal defense firm for the past 18 years. She is also the survivor of one of the most horrifying domestic violence situations I have ever heard. Today, almost 13 years after escaping her abuser, her smile is infectious, and the warmth of her personality fills the room.

She speaks—not easily, but without hesitation—about her decision in 2019 to write a book about her experience. The book is titled But, Why Did You Stay? How I Survived Domestic Violence—the question so commonly asked of every woman who reports domestic violence. It is an unshrinking portrait of her dayto-day life as a successful attorney and living in near-constant violence and control. The simple answer for why she stayed: first it was “embarrassing.” She was afraid that if people knew she was a victim of domestic violence, they would see her as just that—a victim—and that it would hurt the hard-nosed career profile she had worked so hard to build. And then, later, she was too scared to leave. Scared for her life, and for the lives of her family, who her abuser regularly told her he would kill if she ever left. But all that ended the night she finally landed in the hospital. The police got involved, and she couldn’t cover up the abuse anymore. Her abuser was prosecuted, she divorced him, and he gave up custody of his children and moved to another state.

Mekisha says she continued to downplay the whole situation until she began writing her book in 2019. Asked “why then?,” she says she continued to worry about how speaking out publicly would affect her career, but that something inside her kept telling her, “You didn’t go through all this just 30 September/October 2024

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to let someone else say all these horrible things [to themselves] I used to say to myself.” Mekisha says there are many misconceptions about domestic violence survivors—that it does not happen to people like her, people with education and privilege. She wants people to know that it can happen to anyone, and that it is not a sign of weakness. She now sees her experience as an opportunity to send a message to people looking for validation, or for a way out. That “it’s not just me.”

Mekisha says that her experience has made her a better attorney. As to representing defendants accused of domestic violence, she says she is a stronger advocate because she can see the facts differently, often picking up on details that others would not. And her career has expanded because of her speaking out. She has provided numerous trainings to attorneys and law enforcement professionals across Texas and Georgia on domestic violence victim behavior, and she has served as an expert witness on behalf of women charged with murder for killing their abusive spouses. Mekisha’s book was published in 2020 and is available for purchase on Amazon.

She offers free author copies for interested readers who cannot buy a copy.

Those seeking safety or additional resources can reach out for help by contacting the National Domestic Violence Hotline at 800-799-7233; the Houston Area Women’s Center (HAWC) at hawc.org; and Aid to Victims of Domestic Abuse (AVDA) at avda.org.

Jessica Crutcher is a mediator, arbitrator, and attorney at Jessica Crutcher Law PLLC, with a history of pro bono representation of survivors of violence. She is on the editorial board of The Houston Lawyer.

The Houston Bar Association, Houston Bar Foundation, and Houston Bar Association Auxiliary cordially invite you to attend the 75th Annual Harvest Celebration Monday | November 11, 2024 | 7:00 – 10:00 p.m. | River Oaks Country Club

• The Harvest Celebration has been a fundraiser with net benefit proceeds going to Houston Volunteer Lawyers and their essential pro bono legal services in the greater Houston community since 1999.

• Your support of these essential services is vital for our community as Houston’s need for pro bono legal services continues to rise.

• Every dollar donated is amplified into $4 of pro bono legal services provided to the greater Houston community.

• By supporting the Harvest Celebration, you are helping Houston Volunteer Lawyers provide critical pro bono legal services that support recovery and healing, such as legal recourse after a natural disaster, landlord tenant issues, consumer issues, domestic problems, and estate planning.

Diamond Sponsors

• Last year, HVL provided more than $12 million worth of pro bono legal services to our community.

• By generously underwriting the Harvest Celebration, our sponsors play a large role in supporting that access to justice.

“We are proud to serve as co-chairs of the 75th Annual Harvest Celebration, a major milestone in the event’s longstanding history to support access to justice through Houston Volunteer Lawyers,” said HBA President David Harrell and HBF Chair Linda Hester. “We extend our sincere gratitude to all of our sponsors and attendees. Your support helps HVL transform lives and create a lasting impact to assist our Houston neighbors in need.”

We want to thank all of our sponsors for your support, and especially the law firms, corporations, and individuals who joined us at the Diamond, Ruby, and Sapphire levels.

Ruby Sponsors

Sapphire Sponsors

Benny Agosto, Jr. & Nikki Agosto

HBA Litigation Section

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A Profile

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

Bill Kroger

The Houston Lawyer

I

Partner, Baker Botts L.L.P. HBA Past President (2020-2021)

have often thought about my work practices and how they reflect on my professionalism and character. About 10 years ago, I wrote on my desk, with a Sharpie, the practices that I wanted to follow to be a better lawyer. Here is my current list for building a successful practice—at least they worked for me: • Get up every day, go to the office, and do my best work.

• Listen to my colleagues and clients. Take notes.

• Be patient with others, especially younger lawyers and staff, because my mentors were patient with me.

• Own my mistakes, and then fix them.

• Smile. And laugh—make the practice of law fun.

• Slow down, especially on my writing. Edit one more time than I think necessary. And read a hard copy of my draft at least once out loud.

• Make lists, especially on what I want to accomplish that day and over the next year. Lists of action items are critical for managing my work and cases.

• Record my time every day. Timekeeping has ruined the careers of many promising lawyers.

• Maintain my integrity. It is not for sale.

• Think creatively, especially on strategy.

• Be involved in my community. It pays me back ten times over.

• Make time for family. Listen to Elizabeth.

• Exercise and eat healthy. It’s a marathon.

• Read every day—especially outside of the law.

• Keep a journal. It is important to be able to look back and reflect on my progress as a person and professional.

• Don’t make my career about money. If I do these things—work hard every day, never give up, act with integrity and compassion, and put my clients first—then over the long run, the money will be there. Because everyone wants that kind of lawyer.

32 September/October 2024

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Join the HBA 100 Club!

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

Liskow McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, LLP Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane Sponsel Miller Greenberg PLLC Stuart PC Taunton Snyder & Parish Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP

West Mermis Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart & Boundas, LLP Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Bradley Arant Boult Cummings LLP Bush & Ramirez, PLLC Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom LLP McDowell & Hetherington LLP Wilson Cribbs & Goren PC Yetter Coleman LLP Firms of 50-99 Attorneys AZA Law BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker Morgan, Lewis & Bockius LLP Susman Godfrey L.L.P. Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP

Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Lone Star Legal Aid Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals Local Bar Association Boards of Directors Hispanic Bar Association of Houston Houston Young Lawyers Association

COMMITTEE SPOTLIGHT

Judicial Polls Committee:

I

Giving Houstonians HBA Lawyers’ Evaluations of Judges and Judicial Races

The Houston Lawyer

By Colin Pogge and Kevin Jacobs

t is a presidential election year, which probably means higher voter turnout this November. For Houstonians who cast a ballot, the enthusiasm with which they begin the exercise can quickly turn to dismay upon encountering the lengthy list of state-court judicial races and candidates covering multiple pages of their ballot.

Peering down at dozens of names of judicial candidates and trying to make a choice, when the only other information provided is the candidate’s party affiliation, presents a challenge.

After all, judicial races typically do not garner the same preElection Day attention as the races at the ‘top of the ticket,’ so name recognition and candidate familiarity are less common.

Moreover, when it comes to choosing judicial candidates in particular, political affiliation typically carries less weight in voters’ decisions when compared to the other political races on the ballot.

Enter the Houston Bar Association’s Judicial Polls Committee, which aims to provide Houston-area voters with a reliable resource they can consider when making ballot decisions on judicial candidates.

This comes in the form of two polls. The Judicial Preference Poll, held in even-numbered years, invites HBA members to indicate their candidate choices in contested judicial races impacting Houstonians. The committee publishes the results ahead of the general election. The Judicial Evaluation Questionnaire, conducted in odd-numbered years, invites HBA members to assess sitting judges on various professional and ethical criteria based on their firsthand experiences.

Both polls have been a fixture of the HBA’s services since 1973 (meaning the polls are older than some of the judges listed on the ballots).

The work performed by the Judicial Polls Committee is procedural, removed from the politicking that ramps up before the election. In fact, the action items list looks much more like something you’d see at a law journal editing marathon 34 September/October 2024

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in law school. The committee’s work does not involve any interviews or other interactions with the candidates. Rather, the committee serves as a facilitator. Take the 2024 Judicial Preference Poll, for example. The committee’s mission is to accurately gather the judicial candidate information from the state-certified ballot, construct and conduct a judicial preference poll for HBA members, and accurately provide the results to the public.

The Judicial Polls Committee carries out its behind-thescenes work because it is important. An informed electorate is vital to the effective administration of justice, and this is especially true in today’s highly polarized political environment.

Are the polls determinative? Of course not. Nor are the results of the polls HBA endorsements. But by capturing a snapshot of current HBA members’ evaluations and views of the judges and candidates, the polls provide data many voters may find helpful at the ballot box. After all, the judges elected in November will preside over a wide variety of legal matters and will make rulings impacting many Houstonians.

The polling data, however, is only as good as the participation and careful attention we as members of the bar put into it.

Our ask of each HBA member is simple: participate in the bar poll and be thoughtful and honest when doing so.

Visit hba.org/polls to learn more and see the results from the 2024 Judicial Preference Poll, as well as results from past years, going back to 2006. Questions about the HBA Judicial Polls Committee? Contact HBA Marketing and Communications Director and The Houston Lawyer Managing Editor Maggie Martin at maggiem@hba.org.

Colin Pogge is a shareholder at Daly & Black, P.C. He is the 2024–2025 Chair of the HBA Judicial Polls Committee and serves on the HBA Board of Directors.

Kevin Jacobs is a partner at Baker Botts L.L.P. He is a member of the 2024–2025 HBA Judicial Polls Committee.

Section Spotlight

Ready for Resolution:

Spotlighting the HBA ADR Section

A

By Denise Peterson, J.D., FCIArb

lthough much has changed about dispute resolution over the years, from client expectations to technology, much remains the same. In 2023, Supreme Court Chief Justice Nathan Hecht noted: “We have long known our justice system ill fits present realities. The public complains that going to court takes too long and costs too much.” While these are not solely COVID-related issues, COVID placed a greater strain on an already strained legal system, the after effects of which are not quite over. As Justice Hecht highlighted, unlike “the marketplace” that “turns on a dime” in response to consumer demand, changes in the delivery of legal services are traditionally less nimble.

So, if there is a theme for this year’s HBA ADR Section, it is to embrace these challenges as opportunities in supporting the courts and lawyers and their clients with new learning opportunities for fair, effective, and more time- and cost-efficient resolutions.

Sharing the Good News At its first meeting of the Bar Year, the section’s council approved a new communications committee to be a conduit for connection with neutrals, other local bar associations, business and industry organizations, lawyers, business leaders, and the public with the goal of raising awareness and understanding about private dispute resolution options. The work of this new committee complements the work of the section’s other committees—scholarship, CLE, early dispute resolution, and social events—all of which any section member may join.

Learning Together The ADR Section will continue its monthly CLE programs that, in addition to promoting both neutrals’ and advocates’ ADR skills development, will also spotlight the nuances of substantive ADR practice area expertise. Additionally, periodic workshops will address critical fundamentals to a successful neutrals practice, from drafting resilient mediated settlement agreements to comprehensive arbitrator disclosures to clear and decisive arbitration awards.

Kicking off this year’s CLE programming, on September 17 at South Texas College of Law Houston, AAA Director of ADR Services Kate Raum delivered an in-person presentation on the recent changes to the AAA’s Construction Arbitration Rules.

Advancing Early Dispute Resolution One of the most notable recent developments in ADR focuses on

timing. Earlier this year, the ABA unanimously adopted Resolution 500 and, thereby, a policy urging greater voluntary and knowing use of early dispute resolution tools, like mediation and direct negotiation, to resolve conflicts. HBA ADR Section Chair, Felicia Harris Hoss, co-drafted the ABA EDR Resolution and said, “Simply put, Resolution 500 encourages disputants and their counsel to proactively consider the benefits of private dispute resolution— party self-determination, time efficiency, cost-effectiveness, relationship preservation, and non-binary, creative solutions—early in the life cycle of the dispute when the value of resolution to the parties is greatest.”

Incorporating EDR into substantive practices will take time, but in responding to the concerns raised by Chief Justice Hecht and given clients’ growing interest in reducing litigation costs and the timeline to resolution, the ADR Section is committed to being a reliable EDR resource. The Section’s EDR Committee, chaired by Michael Hawash (one of the drafters of the EDR Institute’s protocols), focuses on EDR practice development for neutrals and advocates centered around a four-step process: from gaining and exchanging sufficient information, to valuation, to resolution.

Let’s Connect Anyone interested in advancing their ADR skills or serving on one of the section’s committees can join the section by visiting https:// www.hba.org/?pg=Alternative-Dispute-Resolution.

The 2024–2025 section officers are Felicia Harris Hoss (Chair), Michael Hawash (Chair-Elect), Cindy Moulton (Treasurer), Mark Kritzer (Secretary), and Megan Daic (Immediate Past Chair). Atlarge members of the section’s council are Dominique Bartholet, Jessica Crutcher, Archangela DeSilva, Wiley George, Sherra Gilbert, Luke Gilman, Charles Peckham, Denise Peterson, and Mark Wise.

The HBA ADR Section remains committed to skills and practice development, community outreach, and excellence in service to the bench and bar and the parties they serve. Through innovative educational programming, social events, and with the leadership of its advisory council, the section continues its thought leadership in dispute resolution and supporting lasting client relationships.

Denise Peterson, J.D., FCIArb is a civil mediator and arbitrator who also teaches negotiation and the mediation clinic at South Texas College of Law Houston. thehoustonlawyer.com

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LEGAL TRENDS

Not-So-Limited Individual Liability for Members of LLCs

O

The Houston Lawyer

By Nikki L. Morris

rganizing a business as a limited liability company comes with myriad advantages, including various tax benefits and the ability to protect individual assets of the members from liabilities of the company.

A common misconception about LLCs is that individuals are completely shielded from liability. However, settling a split among Texas intermediate appellate courts, the Texas Supreme Court recently made it clear in Keyes v. Weller that an individual member of an LLC is not shielded from liability for his or her individual tortious conduct committed while acting as a corporate officer or agent.1 The contours of individual liability for LLC members have been the subject of various Texas statutes, numerous Texas appellate court decisions, and several Texas Supreme Court decisions. Historically, under the common law, corporate shareholders, officers, and directors have been shielded from liability for corporate obligations.2 To find an individual liable for corporate obligations, the law required a party to pierce the corporate veil by establishing either that the individual is the alter ego of the corporation or that the corporate entity was used as a sham to perpetuate a fraud.3 In Castleberry v.

Branscum, the Texas Supreme Court interpreted the latter approach to require only proof of constructive fraud.

The Texas Legislature responded to this opinion by amending the law to require a “stricter approach to disregarding the corporate structure.” 4 In its current form, the Texas Business Organizations Code states in relevant part: 36 September/October 2024

(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation or its obligees with respect to: ...

(2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; [but] ... (b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate.5 Several Texas courts of appeals and federal courts had previously concluded that this provision did not eliminate common-law claims based on individual tortious conduct. However, in 2017, Houston’s Fourteenth Court of Appeals held that this provision eliminated all individual liability, absent compliance with subsection (b).6 The Texas Supreme Court has now clarified the issue and stated definitively that “Section 21.223 does not limit an individual’s liability under the common law for tortious acts allegedly committed while acting as a corporate officer or agent, even when the individual is also a shareholder or member.” 7 The court reached this conclusion based on a de-

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tailed statutory analysis and explained that “[t]he statutory history and language confirm that the statute’s focus has always been, and continues to be, on the liability of shareholders for matters relating to corporate contractual obligations—not the liability of corporate agents for their own misconduct.” 8 Thus, absent further statutory amendment, individual members and officers of an LLC should be aware that if they engage in tortious conduct while acting as an officer or agent of the company, they may be subject to personal liability.

Nikki L. Morris is a commercial litigator at BakerHostetler LLP. She also serves as the Articles editor for The Houston Lawyer.

Endnotes

1. Keyes v. Weller, 692 S.W.3d 274 (Tex. 2024).

2. Id. at 278 (citing Willis v. Donnelly, 199 S.W.3d 262, 271 (Tex. 2006)).

3. Id. (citing Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986)).

4. Id. (quoting SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 455 (Tex. 2008)).

5. TEX. BUS. ORGS. CODE § 21.223.

6. TecLogistics, Inc. v. Dresser-Rand Grp., Inc., 527 S.W.3d 589, 591 (Tex. App.—Houston [14th Dist.] 2017, no pet.), abrogated by Keyes, 692 S.W.3d 274.

7. Keyes, 692 S.W.3d at 281 (emphasis added).

8. Id. at 282.

Presumed Innocent?

Texas’ Rebuttable Presumption of Non-Defectiveness Gets Some MuchNeeded Clarification

I

By Lane Morrison

n late June, the Supreme Court of Texas answered two critical questions in Texas’ products liability law: (1) when does a product manufacturer’s compliance with federal safety standards

LEGAL TRENDS

entitle it to the state’s rebuttable presumption of non-defectiveness; and (2) what is a plaintiff required to show to rebut the presumption? In American Honda Motor Co., Inc. v. Milburn,1 the court affirmed the strength of Texas’ rebuttable presumption and gave litigants more clarity on how courts and juries should apply it.

In Milburn, Plaintiff Sarah Milburn sued Honda after suffering severe injuries while riding in the third row of a Honda Odessey minivan. Though Milburn had her seatbelt buckled, the buckle itself was not actually anchored to the bottom of the minivan. This was because the anchor was detachable (and had been previously detached and not reattached) to allow the third-row seat to fold flat and allow more cargo space— a design that is expressly allowed by the applicable seatbelt regulations in Federal Motor Vehicle Safety Standard 208.

At trial, Honda raised—and the jury was instructed on—Section 82.008 of the Civil Practice and Remedies Code. That section “entitles a product manufacturer to a presumption that it is not liable for injuries caused by the product’s design if the manufacturer establishes that: (1) the design complied with mandatory federal safety standards or regulations, (2) the standards or regulations were applicable to the product at the time of manufacture, and (3) the standards or regulations governed the product risk that allegedly caused the harm.”2 A plaintiff can rebut the presumption by, relevant here, establishing that “the mandatory federal safety standards or regulations applicable to the product were inadequate to protect the public from unreasonable risks of injury or damage.”3 The Milburn jury found for Plaintiff—although it found that Honda was entitled to the presumption, it found that the plaintiff had rebutted it— and awarded approximately $37 million in damages. On appeal, Honda argued

that there was legally insufficient evidence supporting the jury’s finding that the plaintiff had rebutted the presumption. The Supreme Court reversed and agreed with Honda that it was entitled to the presumption and that the plaintiff did not present sufficient evidence to rebut it. In the process, it answered many reoccurring questions that have long vexed those seeking to use or defend against the presumption.

As for when the presumption applies, the court clarified that it will, “at least in most instances,” be a question of law.4 That was true in Milburn, too. For one, there was no dispute that the minivan “complied with the mandatory motor vehicle safety standards that govern seat belts and were applicable to the [vehicle] at the time of its manufacture.”5 And even though the plaintiff disputed whether those standards “governed the product risk that allegedly caused the harm,” that too was a legal issue that went in Honda’s favor.6 Though the plaintiff claimed that FMVSS 208 did not govern the risk at issue—that “owners, drivers, and passengers will fail to reliably use the detachable seat belt system in a correct manner”—the court disagreed and (after an expansive evaluation of the National Highway Traffic Safety Administration’s rulemaking history) noted that “any detachable system necessarily involves a risk of misuse, and that risk was contemplated when NHTSA assessed whether to allow this type of system at all.”7 Accordingly, Honda was entitled to the presumption.

As for whether the plaintiff had rebutted it, the court acknowledged that it “had not had occasion to address what is necessary to establish that ‘the mandatory federal safety standards or regulations applicable to the product were inadequate to protect the public from unreasonable risks of injury or damage,’” but found that she had not done so.8 The court underscored that

this determination is an “independent hurdle” that “requires something other than proof of a product’s defective design.”9 As for what that proof may be, the court observed a plaintiff could present evidence that: (1) the federal agency (here, NHTSA) “engaged in an improper or erroneous decision-making process in approving the regulation that authorized the detachable seat-belt system” or (2) “post-approval developments [] call the regulation’s adequacy into question.”10 The plaintiff submitted no such evidence; thus, neither the court nor a jury could determine whether the governing regulation was “inadequate to prevent an unreasonable risk of harm to the public as a whole,” and the court rendered judgment for Honda.11 Milburn provides valuable guidance for product liability practitioners in Texas—and maybe even in other states.

In its decision, the court acknowledged that though many states had presumptions like Texas’, none provided the guidance needed for the determination of this case. The Supreme Court’s expansive guidance is likely to alter the types of proof submitted in product liability cases—here and elsewhere.

Lane Morrison is a senior litigation associate at BSP Law. He concentrates on product liability and class action defense, focusing on critical trial motions and appeals. He is the Legal Trends editor for The Houston Lawyer.

Endnotes

1. No. 21-1097, 2024 WL 3210146, at *5 (Tex. June 28, 2024).

2. Id. (citing TEX. CIV. PRAC. & REM. CODE § 82.008(a)).

3. TEX. CIV. PRAC. & REM. CODE § 82.008(b).

4. Milburn, 2024 WL 3210146, at *7.

5. Id. 6. Id. 7. Id. at *8–9 8. Id. at *10.

9. Id. at *10–11.

10. Id. at *12–14.

11. Id. at *14.

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September/October 2024

37

Media Reviews

Fight of the Century: Writers Reflect on 100 Years of Landmark ACLU Cases Edited by Michael Chabon & Ayelet Waldman Published by Avid Reader Press, An Imprint of Simon & Schuster, Inc Reviewed by JESSICA CRUTCHER

The Houston Lawyer The Houston Lawyer

W

hen the ACLU was founded in 1920, the world looked very different than it does today.

For the last 100-some-odd years, the ACLU has fought endlessly to preserve and expand the freedoms of U.S. citizens. In Fight of the Century, some of today’s greatest living writers come together to reflect on Supreme Court decisions in cases in which the ACLU provided representation or support. Because it would take another book to fully describe this one, I will do my best to hit some of the high points.

Viet Thanh Nguyen, Vietnamese-born Pulitzer Prize-winning author of The Sympathizer, provides his take on Stromberg v.

California, 283 U.S. 359 (1931), in which the Supreme Court held that California could not prohibit the display of red flags as “a sign, symbol or emblem of opposition to organized government.” Nguyen discussed the controversy through the lens of the Vietnam War, and the opposition of anti-communist Vietnamese refugees (now the Vietnamese American community), to displays of the red flag of communism in California. Nguyen notes that: The irony, of course, is that Vietnamese Americans who are strongly anticom38 September/October 2024

munist oppose the communist regime partly because of its suppression of free speech and dissenting views....When it comes to flags, the most persuasive act of free thinking that I encountered during the debate between Vietnamese students came from one young Vietnamese American man. Perhaps, he said, we should fly both flags. And if we cannot agree to do that, we should not fly any flag at all.

Steven Okazaki, an Academy Awardwinning documentary filmmaker, writes about Korematsu v. United States, 323 U.S. 214 (1944), in which the Supreme Court infamously found the internment of Japanese Americans to be constitutional based on “military necessity,” from the lens of growing up with a mother and father, grandparents, aunts, uncles, and two cousins who were sent to these camps for no crime other than being of Japanese descent.

Yaa Gyasi, Ghanaian American recipient of the National Book Foundation’s 2016 5 Under 35 Award and author of Homegoing, addresses Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) from the perspective of an African immigrant who grew up as one of the few Black children in a white neighborhood. She points out that the Court ordered public schools to move toward desegregation “with all deliberate speed,” which of course has meant many different things, as our U.S. public schools often remain highly segregated, with radically different qualities of education. In 2011, Grissom—the school Gyasi attended in Huntsville, Alabama—had a Black population of 8%, and a graduation rate of 88%. In contrast, Butler—a school just eight miles away with a Black population of 71% and a white population of 13%—had a graduation rate of 31%. Only 22% of the students at Butler were reading at or above grade level, compared to 78% of Grissom students. Gyasi theorizes how differently

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her life could have turned out if she had grown up going to a public school a mere eight miles down the road.

Meg Wolitzer, New York Times bestselling author of The Interestings, analyzes from a literary perspective Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Supreme Court held that the Fourteenth Amendment grants a constitutional right to privacy (here, in the context of birth control for married couples). Wolitzer observes that the common use of birth control was integrally wrapped up in the novels of the day— see, for example, discussions of obtaining diaphragms in Mary McCarthy’s 1963 novel The Group and Philip Roth’s 1959 novel Goodbye, Columbus, such that this opinion was really just an example of the courts catching up to society. Never mind that it took another seven years for the Court to extend the privacy right to all persons, not just married ones, in Eisenstadt v. Baird, 405 U.S. 438 (1972). It is worth noting that Fight of the Century, published in 2020, discusses these cases as predecessors to Roe v. Wade, 410 U.S. 113 (1973), as the publication of the book predates the overturning of Roe v.

Wade in 2022 by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

Many more writers, including Michael Chabon, Ann Patchett, Dave Eggers, Elizabeth Strout, Salman Rushdie, Jennifer Egan, Scott Turow, Neil Gaiman, Jesmyn Ward, and Marlon James, to name a few, provide deeply personal accounts of what various Supreme Court civil rights opinions mean to them. The common thread that weaves this anthology together is the absolute diversity of human experience that underscores the necessity of the constant battle to retain and expand our civil and human rights. This book is a must-read for not merely constitutional law nerds, but for any enthusiast of literature and the human experience.

Jessica Crutcher is a mediator, arbitrator, and attorney at Jessica Crutcher Law PLLC and is on the editorial board of The Houston Lawyer.

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