THL_SeptOct_2011

Lingering Traces of Hispanic Law in Texas Preserving Harris County’s Legal History: Can We Do Better Than The Past?

West U and Bellaire Go to War Anthony D. Cox v. Yoko Ono Lennon 100 Things You Might Not Know About the HBA

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THE HOUSTON

inside...

Volume 49 – Number 2

September/October 2011

Preserving Harris County’s History

contents Volume 49 Number 2

September/October 2011

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FEATURES From The Wreck’: 10 ‘Preserved Lingering Traces of Hispanic Law in Texas

By James W. Paulsen

Harris County’s 14 Preserving Legal History: Can We Do Better Than The Past?

By Bill Kroger

Must Have Been Some New 18 ‘That Year’s Eve Party’: West U and

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Bellaire Go to War

By Judge Mark Davidson

Really Want to See You’: 24 ‘ICause No. 893,663;

Anthony D. Cox v. Yoko Ono Lennon

By Judge Mark Davidson

Things You Might 30 100 Not Know About the HBA Restored: 35 Justice Harris County’s 1910 Courthouse Photos by Nash Baker Photography

The Houston Lawyer

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The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715.

Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: 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, 2011. All rights reserved.

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contents Volume 49 Number2

September/October 2011

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departments Message 6 President’s Milestones

By Denise Scofield the Editor 8 From History-Palooza

By Tamara Stiner Toomer in Professionalism: 38 ATheProfile Honorable Jennifer L.

Walker Elrod

Judge, United States Court of Appeals for the Fifth Circuit

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Spotlight 39 Committee The HBA Historical Committee

By Lionel M. Schooler Reviews 41 Media Lone Star Law:

A Legal History of Texas Reviewed by James W. Paulsen

Daughters of the River Huong Reviewed by Joy E. Sanders the Record 43 OffPlanes, Boats and Automobiles:

Land, Sea and Air Claim Eric Lipper’s Free Time

By Farrah Martinez

Trends 44 Legal The U.S. Supreme Court Holds

That Employment Discrimination Claims By 1.5 Million Women Cannot Proceed As One Class

By Jill Yaziji

Paid or Incurred, PostHaygood v. Escabedo

By Robert W. Painter

Texas Passes Law Requiring Disclosure of Chemicals Used in Hydraulic Fracturing Fluid The Houston Lawyer

By Barclay Nicholson Cover Photo: Harris County’s restored 1910 Courthouse is a centerpiece of the downtown courts complex.

Photo by Jim Olive.

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September/October 2011

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47 Placement Service 48 Litigation MarketPlace

president’s message

By Denise Scofield Morgan, Lewis & Bockius LLP

Milestones

H

The Houston Lawyer

ouston and Texas share a common birth year and are celebrating 175 years of rich history. The legal profession is marking both milestones. Here in Houston, we re-dedicated the 1910 Courthouse, are examining the breadth of the document preservation efforts left to be accomplished in Harris County, and are educating the profession and the public about the contributions Houston lawyers have made to Texas history.

The 1910 Courthouse When I began practicing in 1992, the Harris County District Courthouse at 301 Fannin already had fallen into disrepair and faced an uncertain future. By then, it had been clear for several years that the civil district courts had outgrown the square footage and outpaced the technological capabilities of 301 Fannin. Over the following years, many suggestions regarding its renovation and re-use were made with little consensus among members within the legal community and Harris County. Fortunately, the interested parties came together in 2005.

Some six years later, the newly-named 1910 Courthouse was re-dedicated in August 2011 in a ceremony befitting the grandeur of the restored building. As the new home to the First and Fourteenth Courts of Appeals, the building remains true to its original purpose of providing citizens of Harris and other counties with a place to pursue justice. Regardless of your area of practice, it is worth your time to walk through our 1910 Courthouse and admire the careful balance of historical accuracy

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and contemporary technology and conveniences.

Document Preservation We owe a debt of gratitude to several visionaries in Houston who saw the significance of the preservation of the past in a manner no less grand than the restoration of our courthouse – they recognized the importance of saving the records that at one time were housed within the walls of the five courthouses that have stood at 301 Fannin dating back to the 1800s. Thanks to their vision, our Historical Document Room in the Harris County Civil District Courthouse opened to the public in 2006.

Court records from 1837 to 1925 have been painstakingly restored and are available for viewing. Over the years, files marking the careers of esteemed Houston lawyers and files involving people or issues of significance have been preserved.

Judge Mark Davidson recently noted that the real historical significance of many of these records may not always be the lawyers involved in the case, the people named therein, or even the issue at hand. Rather, the historical value may be more subtle – for instance, an inventory of the contents of a grocery store tells us what the people of Harris County were using or consuming in the early 1900s.

The Houston Bar Foundation continues to work with Harris County to determine the scope of the work remaining as to the documents dating to 1925 and to raise the funds needed to complete the restoration and preservation of Harris County’s past.

Thanks to recent state legislation, documents dating to 1950 will receive some

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protection from destruction, and the HBA is assessing how best to proceed as to those records. The HBF is accepting taxdeductible donations to see this project to completion. In addition to preserving case files, bound volumes such as criminal case indices, minute books, fee docket books and accounting books from as early as the Republic of Texas days are being saved.

Costs for preserving these invaluable historical records range from a little as $10 for a file to as much as $2,500 for a civil index book. Donors who contribute an amount sufficient to preserve an entire book may be recognized on the spine or outside cover of the book. Just as it is worth your time to visit the 1910 Courthouse, it is worth your time to spend an hour in the Historical Document Room.

Six Houston Lawyers Who Contributed to Texas History Finally, as part of the HBA’s year-long celebration of our past, the Houston Bar Bulletin is featuring an article about a Houston lawyer who contributed to Texas history in each issue. These short pieces provide a quick glimpse of the impact of the legal profession on the birth and development of our city and state. Some of the names will be known to you, others will not. Certainly it would benefit the legal community to more widely disseminate and educate the public about the historical significance of lawyers in the cultural, civic, and educational achievements of our city and state.

Special thanks to Justice Jane Bland, Lonnie Schooler and Todd Frankfort for chairing the HBA’s Historical Committee during a very big year for the bar!

10 Ways the HBA serves you.

• Meet your MCLE requirements through 80+ hours of FREE CLE and 120+ hours of discounted online CLE programming each year • Support your profession and community • Professional networking opportunities.

• Get to know the local judiciary • Pro Bono opportunities • Stay current on legal issues, educational programs and events through HBA publications • Learn to lead through committee participation • Gain the right tools for your practice through Section membership • Opportunities to participate in over 35 community programs • Partnership discounts at local venues and vendors

www.hba.org

Enhance your practice Try the HBA advantage. thehoustonlawyer.com

September/October 2011

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from the editor

By Tamara Stiner Toomer Attorney at Law

History-Palooza

Associate Editors

Julie Barry Attorney at Law

Keri Brown Baker Botts L.L.P.

Angela L. Dixon Attorney at Law

The Houston Lawyer

Robert W. Painter Painter Law Firm PLLC

Don Rogers Harris County District Attorney’s Office

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f the magazine cover has not already given away none of the aforementioned articles would be posthe theme to this issue of THL (possibly because sible without document preservation, a very imporyou are so excited to read my column and skipped tant topic that Bill Kroger and Lonnie Schooler teach right to it – page 8 for future reference), let me be us about in their written contributions to the issue. the first to welcome you to an extraordinary issue Last, but not least, is the awesome photo essay of becovering a range of historical topics. Not only will fore and after pictures of the 1910 courthouse renoreaders come away with some vation. Huge thanks to Jim Olive fun history facts, but you can and Nash Baker who donated their “It is only fitting also test your knowledge of Beaphotographs to make this possible. that we bring tles’ song lyrics by reading Judge Jim and Nash are professional phoDavidson’s article on Yoko Ono’s tographers and give great accounts our readers such custody battle for her daughter of how they captured the historic an issue to with Anthony Cox. Huh? Am I court renovation through pictures, commemorate the the only one who did not know which you can read about in the that Yoko Ono had a child besidebars included in this issue.

175th anniversary fore she married John Lennon?

Before I sign off, I must give of Texas Independence While on the subject, am I the credit where credit is due. Keri only one who had no clue that Brown and Nick Nicholas served and the Yoko Ono was married to someas guest editors and worked tire175th birthday one besides John Lennon? It’s lessly to put together this issue of amazing what you can dig up in THL, which is an entertaining, yet of Houston.” the Harris County archives, and informative account of Houston’s Judge Davidson did just that by gracing us with anrich history and the efforts of those who seek to preother article about a battle in the ‘burbs. Take-away: serve it. Thanks also to the other members of THL’s don’t let the pearls and updo fool you when it comes editorial staff, who are instrumental in maintaining to turf wars. the high quality and standards that have continued Also adding to the fun history facts is a list comto make THL one of the nation’s leading bar journals. piled by Tara Shockley and Keri Brown of 100 things It is only fitting that we bring our readers such an isyou may not have known about the Houston Bar sue to commemorate the 175th anniversary of Texas Association. Originally, it was supposed to be 175 Independence and the 175th birthday of Houston. things, but who’s counting. Tara and Keri ran out of Peeking ahead, the next issue will serve as a yearsteam around 10 and just made up the other 90. The in-review on some interesting legal topics and infirst to identify the correct 10 gets a free set of steak clude articles on professionalism. Thus, I will share knives. (Editor’s note: I’m only joking folks—there a few of my best “professionalism” practices in my are no steak knives). Not to be outdone, South Texas next column, as I did with my fantasy football tips College of Law Professor Jim Paulsen chips in with a in the previous issue. You can thank me later. As algreat article on some of the laws and procedures that ways, I hope you enjoy reading this issue. Until next Texas’ legal system adopted from Mexico. Of course, time...

September/October 2011

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BOARD OF DIRECTORS President

Secretary

Denise Scofield

Alistair B. Dawson

President-Elect

Treasurer

Brent Benoit

David A. Chaumette

First Vice President

Past President

Laura Gibson

T. Mark Kelly

Second Vice President

M. Carter Crow

DIRECTORS (2010-2012)

Benny Agosto, Jr. Warren W. Harris

Todd M. Frankfort John Spiller

Hon. David O. Fraga Neil D. Kelly

DIRECTORS (2011-2013) Jennifer Hasley Daniella D. Landers

editorial staff Editor in Chief

Tamara Stiner Toomer Associate Editors

Julie Barry Angela L. Dixon Don Rogers

Keri D. Brown Robert W. Painter

Sharon D. Cammack Don D. Ford III Sammy Ford IV Polly Graham John S. Gray Al Harrison Farrah Martinez Judy L. Ney Edward J. (Nick) Nicholas Caroline C. Pace Benjamin K. Sanchez Joy E. Sanders Hannah Sibiski Gary A. Wiener N. Jill Yaziji

Editorial Board

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim

Ronald Riojas

Administrative Assistant

Ashley G. Steininger

Committees & Events Director

Administrative Assistant

Claire Nelson

Bonnie Simmons

Committees & Events Assistant

Receptionist/Resource Secretary

Lucia Valdez

Brian Edwards

Director of Education

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Lucy Fisher

Tara Shockley

Continuing Legal Education Assistant

Communications/ Web Designer

Brooke Eshleman

Amelia Burt Community Education Assistant

Natasha Williams

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12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher

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September/October 2011

9

‘Preserved From The Wreck’:

Lingering Traces of Hispanic Law in Texas

By James W. Paulsen

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n the diverse mix of cultures that makes Texas unique, the state’s Spanish and Mexican heritage features prominently, from Tex-Mex cuisine and barbeque to Cinco de Mayo, fiesta, and rodeo. Cultural influences on Texas law are more difficult to pin down. Books could be written (and one short book actually has been written1) on the subject.

This article’s more modest goal is to present a summary of key features of Hispanic law that survived the legal and political upheaval of the Texas Revolution.

One sometimes hears that Texas law retains some Spanish flavoring because some concepts were so firmly rooted in Texas culture that later Anglo settlers could not dislodge them.2 That is wrong.

The retention of some civil law concepts was not due to force of habit or a new sovereign’s practical accommodation to the local population. The 1836 Texas Constitution was adopted scant days after the Alamo and the Goliad massacres, and almost all delegates were Anglos with little reason to wax nostalgic over the trappings of Mexican rule.3 On its face, the Constitution of the Republic of Texas pretty much repudiated Hispanic law. Congress was directed, “as early as practicable,” to “introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases, the common law shall be the rule of decision.”4 Legislation implementing the Constitution’s mandate simply shows the intent—in the words of early Texas Chief Justice and civil law enthusiast John Hemphill—“to preserve from the wreck of the Spanish system of jurisprudence” selected bits and pieces of prior law.5 What makes the Texas story so interesting is that these fragments of Spanish law have survived the test of time very well, and some have spread far beyond the Red River.

Despite the “[a]s early as practicable” language, the constitution’s mandate was

not put in effect until January 1840.6 Once the smoke of San Jacinto cleared, there actually was some wrangling in Congress as to whether the common law really was the superior system.7 One writer credits President (and non-lawyer) Mirabeau Lamar with pushing through a measure in which President (and lawyer) Sam Houston had little apparent interest.8 However, it took just as long to get the Supreme Court of the Republic of Texas up and running.9 So the delay in adopting the common law may not mean all that much.

In January 1840, Congress finally repealed Mexican law and adopted the common law,10 giving the Republic—in the words of one judge—“a jurisprudence better understood by the courts, the bar and the people than that in use.”11 A Houston newspaper was more blunt, lauding adoption of “the noble structure of English law” in place of “[t]hat miserable system of quasi Spanish, Mexican, departmental and civil laws which has had a sort of vogue here.”12 As permitted by the Constitution, however, the Republic’s Congress did save some elements of Spanish law from the purge, principally in the areas of land rights, trial procedure, and family relationships13 —the latter categories including such things as simplified and unified pleadings, venue rules, the independent executor, adoption, community property law, and (some say) the homestead.14 The decision to retain Spanish and Mexican land law is unremarkable. In international law, a change in government ordinarily does not affect land title15 (though the Republic Constitution did provide that anyone who aided the Mexican army would forfeit their lands16).

Republic lawmakers specifically retained prior law relating to “salt lakes, licks and salt springs, and mines and minerals of every description.”17 One result is that determination of Texas mineral rights can be a little challenging. Unlike the English system, pre-Revolution land grants from the sovereign conveyed only surface rights unless specified otherwise. Backand forth constitutional and statutory

changes in 1866, 1883 and 1895 have mixed things up even further.18 Hispanic principles also have affected Texas water law, but not as a direct survival of early law. The 1840 act adopting the common law did not specifically address water rights19 and an 1856 court ruling made clear that Texas had judicially adopted a common law riparian rights system.20 Beginning in 1895,21 a succession of further legislative enactments, culminating in the Water Rights Adjudication Act of 1967, established a permitting process subject to judicial review. That review process sometimes required detailed examination of Spanish law.

Professor Hans Baade of The University of Texas sums things up as well as anyone: Though “the present system of Texas water law is twice or perhaps even three times removed from the Spanish and Mexican law of water rights that had prevailed” before 1840, “paradoxically, the ultimate stages of the historical process... have served to enhance rather than to diminish the practical significance of water right claims based on Spanish and Mexican law.” 22 Spanish law had a more dramatic influence on Texas civil procedure. In the 1830s, Anglo law observed a strict division between common law and equity.

For example, before emigrating to Texas, John Hemphill had to obtain two South Carolina law licenses—one for the law courts, and the other for chancery.23 Oversimplifying greatly, the nature of the lawsuit and the relief sought would determine what sort of pleading one would file, which court (or courts) would determine the controversy, and whether litigants had a right to trial by jury. The English system also gave birth to complex and formulaic pleading.

Spain and Mexico were civil law jurisdictions, so the English distinction between law and equity was unknown.

Pleadings also were simple—petitions and answers. A fair number of Anglo settlers had acquired some experience with, and appreciation for, Mexican courtroom procedures before the Revolution.24 So,

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just two weeks after the Republic adopted the common law, lawmakers provided that “the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer,” and that legal and equitable claims could be raised and decided in a single lawsuit.25 The decision was not universally popular. Prominent members of the Houston bar petitioned Congress to institute common law pleading. In their view, simple Spanish pleadings were “eminently well calculated to afford protection to the ignorant and indolent.”26 Because many lawyers did not understand Spanish pleading (or even speak the language), the result was seen as “a mongrel system” in which chaos reigned, “many Lawyers pursuing the Civil Law, whilst a greater number adopt and pursue in parts of pleadings beyond the petition, the forms of the common Law.”27 Preservation of the community property system was perhaps the most radical innovation of all, at least from the perspective of common law proponents. To paraphrase Blackstone, at marriage the two became one, and that one was the husband.28 In civil law, though, husband and wife were true partners.29 The wife kept her separate property, and she shared equally in property acquired during marriage.30 The popularity of the Spanish approach probably stemmed from at least two sources. First, in a frontier society, women shared equally in both hard work and danger. A partnership seemed only fair.31 Second, Texas debtors could use the community property system, combined with restrictions on a married woman’s contractual powers, to play nasty tricks on creditors who thought only in common law terms.32 The pedigree of the homestead, an estate in land exempt from the claims of general creditors, is more difficult to pin down. In its full-fledged form, the homestead surely is an invention of the Texas Republic.33 Yet it may reflect some aspects of prior Spanish law,34 and bears an even stronger resemblance to a short-lived 12

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Mexican enactment.35 This genealogical problem is made worse by the fact that the author of the first homestead law never has been identified conclusively.36 Moreover, the Mexican law just mentioned was apparently the brainchild of Stephen F. Austin, technically a Mexican citizen at the time, but also an Anglo non-lawyer outside the mainstream of civil law.37 Before winding up this flying overview, a couple of points bear mention. First, it is very difficult to pin down “true” Spanish law survivals with any degree of certainty.

For one thing, it is difficult even today— and surely was more difficult back then— to figure out just what comprised Spanish or Mexican law. Law books were scarce38 and the text of some laws or interpretive decisions were not available.39 One remarkable early court opinion referred to (and disapproved) a longstanding practice whereby judges would “receive the evidence of intelligent Mexicans, who were not lawyers, in reference to the laws of Spain and Mexico, in litigation pertaining to lands.”40 To these problems, add that there were no properly qualified Mexican or Spanish lawyers in pre-Revolution Texas,41 most immigrant lawyers could not read the language,42 translations sometimes contained errors,43 and none of the first nine judges of the Republic had practiced in a civil law jurisdiction.44 All in all, it seems likely some pre-Revolution law in the province of Coahuila y Tejas did not bear a very strong resemblance to “pure” Spanish law, and that some good faith efforts to follow Spanish law did not succeed.

Take, for example, Chief Justice Hemphill’s interpretation of Spanish community property law regarding the important question of the ownership of crops produced on separately owned land. Hemphill strongly favored Spanish law. Yet his opinions tended toward the so-called “American rule” of separate ownership.45 It fell to a later common law-inclined judge (one with a law degree from Harvard, back when it was a two-year undergraduate course) to decree—apparently without knowing it—the “Spanish rule”

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of community ownership.46 A final point worth making is that, while Spanish-influenced doctrine is not a large component of Texas jurisprudence, quantitatively speaking, that law has had an outsized effect. New York has been credited as the jurisdiction that first successfully merged law and equity (in the 1848 Field code), and as being the cradle of the American women’s rights movement (the Seneca Falls convention, also in 1848). But Texas merged law and equity before New York,47 Texas community property principles helped bring about Seneca Falls (probably without the conscious knowledge of Susan B. Anthony and her friends),48 and the homestead has spread worldwide.49 In sum, if only a few items could be salvaged from the “wreck of the Spanish system of jurisprudence,” the lawmakers of the Republic of Texas chose well.

Professor James W. Paulsen teaches civil procedure, family law, and marital property law at South Texas College of Law. He earned his law degree from Baylor Law School and an LL.M. from Harvard Law School.

Endnotes See STATE BAR OF TEXAS, THE INFLUENCE OF SPAIN ON THE TEXAS LEGAL SYSTEM (1992).

2. Accord Joseph W. McKnight, Spanish Concepts in Texas Law of the Family, Succession, and Civil Procedure, in id. at E-1 (to the same effect, adding: “The true picture is fundamentally different”).

3. Ralph W. Steen, Convention of 1836, in 2 NEW HANDBOOK OF TEXAS 297 (1996) (stating that of 59 delegates, only three were natives of Mexico).

4. TEX. CONST. art. IV, § 13 (1836).

5. Cartwright v. Hollis, 5 Tex. 152, 153 (Tex. 1849) (referring specifically to community property law).

6. Act approved Jan. 20, 1840, 4th Cong. R.S., § 1, 1840 Republic of Texas Laws 156, reprinted in 1 H.P.N. GAMMEL, LAWS OF TEXAS 177, 177-78 (1898) 7. Robert N. Jones, The Adoption of the Common Law in Texas, 53 TEX. B.J. 452, 454-55 (1990).

8. Id. 9. See, e.g., James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237, 253 (1986).

10. Act approved Jan. 20, 1840, 4th Cong. R.S., § 1, 1840 Republic of Texas Laws 156, reprinted 1.

in 1 H.P.N. GAMMEL, LAWS OF TEXAS 177, 177-78 (1898).

11. Jones v. Nowland, Dallam 451, 452 (1842) (opinion of Associate Justice Anderson Hutchinson).

12. Morning Star (Houston), Feb. 12, 1840, at 2 (col. 1).

13. Joseph W. McKnight, Spanish Law, in 6 NEW HANDBOOK OF TEXAS 6-7 (1996).

14. Id. at 7.

15. See, e.g., id.

16. TEX. CONST., General Provisions, § 8 (1836).

17. See supra note 10, § 2.

18. See, e.g., Schwartz v. State, 703 S.W.2d 187, 189-90 (Tex. 1986); Hans W. Baade, Traces of Spanish and Roman Law in the Texas Land, Water & Mineral Law, in State Bar of Texas, at D 3, in State Bar of Texas, The Influence of Spain on the Texas Legal System (1992).

19. See generally Hans W. Baade, The Historical Background of Texas Water Law–A Tribute to Jack Pope, 18 ST. MARY’S L.J. 1, 3 (1986). Professor Baade’s work is an indispensable source for any thorough understanding of the history of Texas water law.

20. See Haas v. Choussard, 17 Tex. 588 (1856); see also In re Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River Basin, 642 S.W.2d 439, 439 (Tex. 1982) (stating that “Texas judicially adopted the riparian rights system, at least by 1856”); see also generally Ira P. Hildebrand, The Rights of Riparian Owners at Common Law in Texas, 6 TEX. L. REV. 19 (1927).

21. See supra Baade, Historical Background, note 19, at 6 (discussing the Irrigation Act of 1895, which reserved to the state all unappropriated running waters as of its effective date).

22. Id. at 11.

23. See generally James W. Paulsen, The Judges of the Republic of Texas, 65 TEX. L. REV. 305, 31822 (1986).

24. Joe McKnight attributes the survival of some law to the fact that some Anglo lawyers practiced with Mexican rules long enough to develop some genuine appreciation for those rules. Bar book at E-2.

25. Act approved Feb. 5, 1840, 4th Cong. R.S., §§ 1, 12, 1840 Republic of Texas Laws 88, 2 H.P.N. GAMMEL, LAWS OF TEXAS 262 (1898).

26. Memorial of Law Practitioners at 4, November 1841 (No. 22, Box 54) (Lorenzo de Zavala State Archives, Austin).

27. Id. at 1.

28. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 442 (5th ed.

1773) (stating that “By marriage the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband...”).

29. See, e.g., Wright v. Wright, 3 Tex. 168, 172 (1848) (per C.J. Hemphill, stating that at divorce the wife could seek “the delivery to her of her separate property and the onehalf of the common property of the conjugal partnership”).

30. See, e.g., id.

Edwards v. James, 7 Tex. 372 (Tex. 1851) (per C.J. Hemphill, asking rhetorically: “Do not the women sustain the frontier with their toils, if not with their arms? Are they not subjected to the same, and to infinitely worse horrors from the hostilities of the savage foe?”). For a general discussion of the debates on the community property provision at the 1845 constitutional convention, see James W. Paulsen, Community Property and the Early American Women’s Rights Movement: The Texas Connection, 32 IDAHO L. REV. 641 (1996).

32. This aspect of the community property system is developed in detail by Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990).

33. See, e.g., SEYMOUR D. THOMPSON, A TREATISE ON HOMESTEAD AND EXEMPTION LAWS Preface, v n.2 (1878) (stating that “[t]he earliest American homestead law of which this writer has knowledge was an act of the republic of Texas, passed January 26, 1839”).

34. See, e.g., id.

35. Joseph W. McKnight, Homestead Law, in 3 NEW HANDBOOK OF TEXAS 680 (1996).

36. See, e.g., James W. Paulsen, Introduction: The Texas Home Equity Controversy in Context, 26 ST. MARY’S L.J. 307 (1995) (referring to the origins of the Texas homestead as “one of the minor mysteries of Texas history”); see also generally Joseph W. McKnight, Protection of the Family Home From Seizure by Creditors: The Sources and Evolution of a Legal Principle, 87 31. Cf.

SW. HIST. Q. 369 (1983). e.g., McKnight, supra notes 35 & 36.

38. See generally, e.g., Paulsen, supra note 9, at 270-76.

39. This problem is examined thoroughly by Guillermo F. Margadant, The General Structure of the Law of New Spain, in STATE BAR OF TEXAS, THE INFLUENCE OF SPAIN ON THE TEXAS LEGAL SYSTEM (1992).

40. State v. Cuellar, 47 Tex. 295, 304-05 (1877).

41. Hans W. Baade, The Historical Background of Texas Water Law–A Tribute to Jack Pope, 18 ST. MARY’S L.J. 1, 22 (1986).

42. John Hemphill was a notable exception, in that on arriving in the Republic, he set about learning the Spanish language. See, e.g., ROSALEE CURTIS, JOHN HEMPHILL: FIRST CHIEF JUSTICE OF THE STATE OF TEXAS 27 (Rev. 1997).

43. Trevino v. Fernandez, 13 Tex. 630 (1855).

Hemphill corrects error in nature of Spanish title, explaining prior decision on the basis of a mistranslation.

44. Robert N. Jones, The Adoption of the Common Law in Texas, 53 TEX. B.J. 452, 454 (1990).

45. See, e.g., Cartwright v. Hollis, 5 Tex. 152, 166 (1849).

46. See DeBlane v. Hugh Lynch & Co., 23 Tex. 25 (1859) (per Justice James Bell).

47. See supra text accompanying notes 23-27.

48. For the whole story laid out in excruciating detail, see Paulsen, supra note 31.

49. See, e.g., Paulsen, supra note 36, at 310.

37. See,

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September/October 2011

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By Bill Kroger

Preserving Harris County’s Legal History:

Can We Do Better Than The Past?

F

or my birthday this year, my parents gave me a bound set of Plutarch’s Parallel Lives, a collection of short biographies of eminent Greeks and Romans with a focus on their ethical and moral characters. One chapter is about Solon, a wise Athenian who lived during the sixth century B.C.E., who gave Athens its first code of laws. Some of these laws are understandably primitive, while others seem relatively modern. Others resonate with today’s economic and political circumstances: Solon observed that the city was filling up with people who now poured into Attica in a steady stream from every quarter because of the security of conditions there; at the same time he recognized that the country was for the most part poor and unproductive, and that seafaring people elsewhere are not in the habit of sending their goods to those who have nothing to offer in exchange. He therefore encouraged the Athenians to turn to the arts of manufacture and made a law that no son was obliged to support his father unless he had first been taught a trade.1

Unfortunately, the Athenians did not preserve Solon’s Code of Laws, which were originally written on wooden tablets. By the first century A.D., when Plutarch was writing, only a few remained.

Plutarch bemoaned that only “some small remains of these were still preserved in the Prytaneum in Athens in my time.” Probably few Athenians realized that these statutes would still have value and meaning, if only they have been saved.

Other civilizations also have not saved their legal codes and other historical writings. The tablets of stone on which the Ten Commandments were said to be inscribed, along with the Ark of the Covenant that housed them, somehow vanished without any explanation. The

I. The Fate of Texas’ Historical Court Records The State of Texas has a history that is as unique and deserving of preservation as these older civilizations. The development of the Texas legal system has been and is an integral part of the growth, development, and history of this state. It is why the town centers for most county seats are occupied by a courthouse, and not a church, army base, or other institution. It is why more Texas governors have been lawyers than any other occupation. And it is why an understanding of Texas’ history is incomplete without an appreciation of the important role that the legal system played in the development of every important institution and nearly every historical event.

Because of its size and history, Texas probably has the largest and most complete set of court records that document this important history. These records are spread out among hundreds of courthouses, archives, and repositories throughout the state. And yet, with rela-

tively few exceptions, most counties have not taken steps to preserve these critical documents for future generations.

Thus, while dozens of counties have district and county court records dating back to the Civil War, early statehood, and even the Republic of Texas, many of these records are now crumbling into dust. Many of the Republic of Texas documents are slowly being dissolved by the iron gall ink used on their pages. The paper can be so brittle that merely trying to unfold these records can cause them to break into pieces. It is not uncommon to find Republic of Texas records with mold, missing or torn pages, or holes caused by rats or roaches.

Many historical records have been damaged over the past 150 years by fires, hurricanes, and other natural disasters.

Galveston’s historical court records are in cardboard boxes lined with plastic bags because these records are stored only a few blocks from Galveston Bay, and were almost lost in the last hurricane.

But we cannot blame all of our problems on rodents and weather events.

Some of these documents have been stolen and are now offered for sale on the internet. In the past, some government officials gave away court records, not realizing their historical value. Even today, many district and county clerks allow unsupervised public access to their historical court records. Very few district and county clerks have policies and procedures on how such court records are to be stored, handled, or secured.

Many counties store their records in basements or attics, often without any controls on temperature and humidity. I have seen 19th century historical court records stored in shipping crates in parking lots, stacked on floors, stored underneath water pipes or electrical conduit, or displayed in public waiting spaces as decorative items. In short, we have not done any better than ancient civilizations in preserving our historical legal documents. If we do not do something to protect these records now, they will

suffer the same fate as Solon’s wooden statutes.

II. Time for a Change Two years ago, the Texas Supreme Court formed a task force to study court record preservation and make findings and recommendations on what should be done to better preserve these documents.

The Task Force comprises judges, law-

Mold grows on a box of unpreserved historic court records.

Unpreserved case files are jammed into cardboard boxes.

A box containing unpreserved court records pertaining to Howard Hughes and his father.

A preserved example of a Republic of Texas Form showing the transition of “Harrisburg County” to “Harris County.”

Photos by Bill Kroger

Library of Alexandria, the greatest library of the ancient world, was “accidently” burned down by Julius Caesar in 48 B.C.E. (but no one really knows how).

The Romans did not save the records pertaining to the founding of Rome. The historian Livy, the great first century A.D. historian, wrote movingly about the exploits of Camillus and Horatius, but was essentially repeating folk tales because he had access to few historical records. The Romans did not even know with certainty where they came from, relying instead on mythical stories of Ancient Troy.

One would think that in 2000 years, we would have learned from these mistakes, and do a better job of preserving our historical records. Yet, after studying the problems with Texas’ historical court records preservation, I am convinced that important records of our founding will likely disappear like those of ancient civilization if we do not do something now to stop their loss.

The Historical Document Room in the Civil Courthouse, showing the bar that separates public access from the preserved historical records.

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yers, archivists, and historians, as well as representatives of many state agencies, including the Texas State Library and Archives Commission, the General Land Office, the State Bar of Texas, and the Office of the Attorney General. I was asked to chair the Task Force and our report was recently published.2 During the next year, the Task Force, the State Bar of Texas, and the State Library and Archives will work together to raise awareness about the need to better protect these historical records.

We are working to develop programs to better train district and county clerks and their staff on how to better handle, store, preserve and secure their court records. We are also creating a foundation to which individuals can make tax deductible donations for the preservation of these records. Finally, we will present a special historical and preservation program for lawyers at the next State Bar Annual Meeting, to be held in Houston in June 2012.

Harris County is one of the leading

Texas counties in preserving its court records. The Harris County District Clerk has raised more than $2 million to preserve the county’s historic district court records, which are among the most important and complete in the entire state. Our former district clerk Charles Bacarisse and Judge Mark Davidson played important roles in getting this preservation project off the ground.

Many law firms and individual lawyers contributed towards this preservation project. Today, substantially all of the Harris County district court records from the 19th century, including minute books and case files, are fully preserved.

Additionally, these records are stored in safe, climate-controlled facilities that enable public access to the records without compromising their integrity. The Harris County District Clerk has some of the best and most comprehensive policies and procedures for handling such records, and many of these documents are now available online for all to see.

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III. The Need to Preserve Harris County’s 20th Century Records Our work in Harris County is not complete. The State Library and Archives recently revised its preservation standards to clarify that all court records up until 1951 must be preserved. Most of the Harris County records from the first half of the 20th century have not been preserved.

These 20th century records are immensely valuable. The City of Houston became one of our greatest cities in the 20th century as a result of such historical events as the Galveston Hurricane of 1900 and the discovery of the East Texas oilfields. Critical Houston landmarks were built or created during the 20th century, including the development of the Houston skyline, the petrochemical industry, the Medical Center, the major airports, Houston’s professional sports teams, and NASA. Many of our most prominent citizens lived during the 20th century, including Jesse Jones, Howard Hughes, Captain James A. Baker, Leon Jaworski, Barbara Jordan, Lightnin’ Hopkins, and President George W. Bush. Important documents pertaining to these institutions and individuals are found in these records, which is one reason why the Houston Bar Association has made the preservation of these records an important centerpiece of the current bar year.

If we can continue to make progress on preserving our early 20th century court records, we will ensure that these records will be available for future generations of Houstonians.

Bill Kroger is a partner at Baker Botts L.L.P, where he practices energy litigation. He is a past chair of the Houston Bar Foundation, and is the current chair of the Texas Supreme Court Historical Court Records Task Force.

Endnotes 1.

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‘That Must Have Been Some New Year’s Eve Party’

West U and Bellaire Go to War

The career of Jimmy Allred included service as Governor, Texas Attorney General and judge on the Fifth Circuit. He was practicing law in Houston when he was hired by Mayor Abe Zindler to represent Bellaire in the annexation suit.

Photo: Texas State Historical Association.

Mayor Abe Zindler and his sons, circa 1938, including young Marvin Zindler, second from left. Photo from Bellaire’s Historical Cookbook

By Judge Mark Davidson

W

e all consider the three cities just west of the Texas Medical Center—West University Place, Southside Place, and Bellaire—to be close to downtown Houston. Yet, there was a time in which these municipalities were considered to be in the outer suburbs of the city. In fact, when the City of Bellaire was first founded, it was marketed as a place in which people could work small farms and sell produce to residents of Houston.1 The three cities have been surrounded by the City of Houston since 1949, and any physical growth is impossible, unless the City of Houston cedes land (and the tax revenue that comes with land) to them.

The inability to grow must have been frustrating to the leaders of those cities at the time of Houston’s growth in the years that followed World War II. A 1946 Harris County case shows the level of frustration felt by the City of West University Place. In the late 1930s and early 1940s, the City of Houston exercised its right as a “home rule city” to annex strips of land totally surrounding West University Place on its northern, eastern, and southern boundaries. Home rule cities have the power to annex territory adjacent to their boundaries, whereas general law cities (like Bellaire in 1945) can only annex territory with the consent of the inhabitants of the new territory. West University Place successfully challenged each of the annexation ordinances in district court, arguing that the City of Houston’s actions would destroy West University Place’s own right as a home rule city to annex additional territory because West University Place would be completely encircled.

However, West University Place lost in the Texas Supreme Court.2 The Court held that it was permissible for a home rule city to annex territory around another home rule city, even for the purpose of prohibiting growth by the surrounded city, as long as the annexing home rule

versity Place City Council adopted a secity did not remove the power of self-govries of eight ordinances, which attempted ernance from any other city. to annex territory by progressive steps.4 After Houston’s annexations, the only First, the Council annexed all territory in direction in which West University was the cities of Bellaire and Southside Place, not wholly bordered by Houston was on together with the west, where expropriation of it was bordered the municipal by the City of buildings. Then, Bellaire. Houshaving found a ton had not boundary to its annexed land city that was not around Belsurrounded by laire. Being a the City of Hous“home rule” city, ton, the Council West Univerannexed land sity Place’s City north, west and Council then southwest of the passed an ordiCity of Bellaire nance giving itthat was not part self the right to of Houston. It annex all or part did so without of adjacent land giving notice to in cities of less either Bellaire, than five thouSouthside Place, sand residents. or (especially) Since Bellaire the City of Houswas, in 1946, ton. largely undevel- In this map of the proposed annexation, the attempted new The next day, oped, it was not city of West University Place would have included large areas of what is now known as West and Southwest Houston. the Mayor of Beleligible to be a From the Southwestern Times, January 24, 1946. laire, Abe Zindler,5 was notified of his home rule city, a status that required a population of five thousand residents. city’s purported abolition. He expressed Therefore, it was susceptible to annexagreat surprise and commented: “That tion under West University’s new ordimust have been some New Year’s Eve nance.

Party!”6 Zindler was clearly a person who West University Place’s legal argument knew his way around town, but he didn’t rested on the fact that neither Bellaire have to go very far to find an outstandnor Southside Place were home rule citing attorney to assist the city. Three doors ies. Therefore, West University Place asdown the street from his house was one serted that its right as a home rule city of the most experienced and most conto enact ordinances with the power of nected lawyers in the state of Texas. By state law trumped the right of the smaller the end of New Year’s Day, Zindler had 3 general law cities to exist. This reasonhired a lawyer well known to his constituents and to the Harris County judiciary ing was consistent with dicta in the Texas – James V Allred.7 Supreme Court’s prior decision allowing Houston to partially enclose West UniJimmy Allred8 was one of the most versity Place. Because neither Bellaire honored and accomplished members of nor Southside Place was a home rule city, the Harris County bar. He was appointed West University Place argued that no District Attorney of Wichita County at home rule city was being deprived of its the age of 24 and was elected Texas Atpower of self-governance. torney General at the age of 31. In 1934, On December 31, 1945, the West Unihe was elected Governor of Texas. In thehoustonlawyer.com

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1939, upon leaving the Governor’s office, because his flight had been delayed. The Rogers12 appointed Judge J. G. Howard of 13 he was appointed by President Franklin Galveston to hear the case. request was probably granted, since the D. Roosevelt to be a judge on the Fifth record reflects that the case was tried In early February, Harris County DisCircuit. In 1942, probably at Roosevelt’s on June 16th. Judge Howard heard less trict Attorney A.C. Winborn intervened urging, he resigned to run unsuccessthan a day’s evidence and argument, and in the lawsuit, bringing a quo warranto fully for the U.S. Senate against W. Lee ruled that the annexations were void. An action. Winborn asked the court to “Pappy” O’Daniel. Roosevelt then apappeal was taken to the First Court of rule that the West University Place City pointed him to again serve Appeals, located in Galveson the Fifth Circuit, but ton. In an opinion by Justice Senator O’Daniel blocked T.H. Cody,15 the Court ruled his confirmation. Allred that the power of a home was therefore, in 1945, rule city to annex territory practicing law in Houston, did not extend to territory awaiting such a time that located in other cities, even O’Daniel was no longer in if the other cities were not office to apply for a federal home rule cities.16 The trial 9 judgeship. court was affirmed. Bellaire and Southside Place would To say that Allred was be allowed to continue as an intelligent and capable independent municipaliattorney is a severe unties. More significantly, the derstatement. As Attorney annexation of unincorpoGeneral, he aggressively rated areas beyond Bellaire brought antitrust actions was set aside, meaning that against large companies West University Place’s and usually served as first borders would forever be chair trial counsel. As a City of Bellaire, circa 1946. In the upper left portion of the picture is the future location of locked in. former District Attorney, The the Galleria. In the center foreground is the future location of Greenway Plaza. Photo courtesy of This case is of great sighe had no fear of court- Bellaire Public Library. nificance in the development of Harris rooms. As a member of the Fifth Circuit, Council was without authority to take County and the City of Houston. Had the he was known as a hard working and any action extending its ordinances to suburban cities annexed territory at will, extremely eloquent writer. Not insignithe residents of Bellaire. His pleadings Houston would have, in time, been surficantly, while Governor, he appointed also suggest that he was acting “upon the rounded by suburban cities, such as has a number of district judges around the relation” of Glenn H. McCarthy, among happened to Dallas. It would have been state at all levels of the judiciary. others. McCarthy was building a hotel unable to develop as a large city under On January 2, 1946, the first day the on the nearby corner of Bellaire Bouleone government. When the City of BelHarris County courthouse was open afvard and South Main Street that would laire tried to annex a few blocks of land ter the annexation, the two annexed citbe named the Shamrock Hotel. The rein 1949, the City of Houston preempies, Bellaire and Southside Place, filed a cord is silent as to why McCarthy felt a tively annexed a strip around the city, lawsuit challenging the annexation ordineed to intervene and how he was able to prohibiting its future growth. In time, nances.10 The case, given Cause Number persuade the District Attorney to interall home rule cities in Harris County, exvene in his official capacity and on behalf 324,946, was assigned to the 80th Discept Pasadena and Baytown, would find of private citizens. Winborn assigned trict Court, whose Judge, Roy Campbell, themselves cut off from growth by anthe case to Assistant District Attorney resided in West University Place. Allred nexation and, later, adoption of extraterBob Casey, a recently returned veteran had clearly spent most of New Year’s Day 11 ritorial jurisdiction statutes. of World War II who was running for preparing the Petition, since the docuWest University and Bellaire have State Representative in that year’s Demoment was filed at 8:48 a.m. the next day. A 14 been, since their creation, cities where cratic Primary. temporary restraining order was sought commercial development is severely against the enforcement of the order, and The case was assigned to trial on June restricted by zoning ordinances. HousJudge W.W. Moore of the 11th District 15, 1946, only five months after it was ton, of course, is not. Part of the GalleCourt granted the request ex parte. Judge filed. The proceedings started with Govria Mall, and all of the Greenway Plaza Campbell immediately recused himself, ernor Allred sending a telegraph to the and Astrodome/Reliant Arena area were and Regional Administrative Judge Max Court asking for a one day continuance, 20

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within the borders of the attempted annexation. It is an open question whether any of these developments would exist today but for the outcome of this case.

Peace has reigned in relations between the three cities since the 1940s. If ever a reader of this article drives over the railroad tracks on Bellaire Boulevard from West University Place to Bellaire, you will find a marker that reads: “Bellaire 1909.” What would have happened to that marker and to the City of Bel-

laire, in the absence of quick and decisive legal intervention, can only be left to speculation. Today, most residents of West University, Southside Place and Bellaire like their small town governments. Mayor Zindler and Mayor S.F. Kachtick of Southside Place did not emulate Prime Minister Neville Chamberlain of Great Britain and opt for a settlement to achieve “Peace in our time.” For their resolution, and the work of their lawyers and our legal system, the residents

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of those neighborhoods should be grateful.

I wish to thank Cade Mason, a second year law student at the University of Houston Law School, for his help in the research, writing and editing of these articles. Mary Cohrs of the Bellaire Public Library was most generous in allowing me access to the archives of the library.

Finally, my high school history teacher, Richard Nevle, is the source of my interest in history. He died in July of 2010. I hope I made him proud.

Mark Davidson is a retired judge and a resident of the City of Bellaire.

Endnotes

Early brochures called the area “Westmoreland Farms.”

City of Houston v. State ex rel. City of W. Univ. Place, 142 Tex. 190, 176 S.W.2d 928 (1943).

3. See SOUTHWESTERN TIMES, January 4, 1946 (quoting Mayor A.L. Kerbow of West University Place).

4. City of W. Univ. Place v. City of Bellaire, 198 S.W.2d 766, 766 (Tex. Civ. App.—Galveston 1946, no writ).

5. Zindler was the mayor of Bellaire from 1937 to 1943 and from 1945 to 1947. His son, Marvin, became well known as a deputy sheriff and as a reporter for KTRK-TV. 6. BELLAIRE’S OWN HISTORICAL COOKBOOK 48 (1969), on file with the author. The comment of Ripley Woodard, the City Attorney of Southside Place, was even more succinct: “Nuts!” W. University Council Passes Ordinance Annexing Southside and Bellaire in New Year’s Eve Coup, Southwestern Times, Jan. 3, 1946, at 1, 8.

One year and a day before, General Anthony McAuliffe had given the same reply when the Nazi army had demanded surrender of Bastogne during the Battle of the Bulge.

7. In 1945, Zindler lived at 4702 Bellaire Blvd. (at its intersection with Post Oak Road) and Allred lived at 4720 Bellaire Blvd. (at its intersection with First Street).

8. His birth name was James Burr V Allred, having been named after an uncle named Burr and another uncle named V. When he enlisted in the Navy during World War I, the clerk left off Burr from his name, and Allred accepted that change the rest of his life.

9. O’Daniel would leave the Senate on December 31, 1948.

Allred was appointed as a federal judge in 1949.

10. The information about this suit comes from the case file, which is available in microfiche form at the Harris County District Clerk’s office.

11. Allred attended Rice University for one year before attending law school. Rice was not in a New Year’s Day bowl game on January 1, 1946.

12. Judge Rogers had been appointed Regional Administrative Judge by Allred.

13. Judge Howard had been appointed as a district judge

by Allred.

14. Casey would serve as State Representative from 19471951, County Judge from 1950-1958 and as a member of the U.S. Congress from 1958 until 1975.

15. Justice Cody had been appointed Justice of the First Court of Appeals by Allred.

16. City of W. Univ. Place v. City of Bellaire, 198 S.W.2d 766 (Tex. Civ. App.—Galveston 1946, no writ).

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Porter Hedges, L.L.P. Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges Winstead PC Small Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck, Redden & Secrest, L.L.P. Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky Gould PC Kroger | Burrus Schwartz, Junell, Greenberg & Oathout, L.L.P Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP Boutique Firm Champions Abrams Scott & Bickley, L.L.P. Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire, Sanders & Dempsey L.L.P. Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.

Solo Champions Law Office of O. Elaine Archie Basilio & Associates, PLLC Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Fran Brochstein Law Office of David Hsu Brogden Law Office of Robbie Gail Charette De la Rosa & Chaumette Law Office of Papa M. Dieye The Ericksen Law Firm Frye & Cantu, PLLC Fuqua & Associates Terry L. Hart Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. The Keaton Law Firm, PLLC Gregory S. Lindley Law Office of Maria S. Lowry Martin R. G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC Morley & Morley, P.C. Bertrand C. Moser Pilgrim Law Office Robert E. Price W. Thomas (Tommy) Proctor Law Offices of Judy Ritts Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Teal & Associates Tindall & England, P.C. Diane C. Treich Norma Levine Trusch

Yoko Ono, Kyoko Cox and Anthony Cox in January 1965. Getty Images.

Cause No 893,663; Anthony D. Cox v. Yoko Ono Lennon

I Really Want To See You

By Judge Mark Davidson

T

he courts of the Harris County Family Division work long and hard hours eight days a week to perform a sad task – ending marriages involving children. Sometimes, disputes involving children continue for years after a judge ends a marriage, becoming a long and winding road of litigation. Continuing custody disputes, visitation orders to reflect changes in the parties’ lives and child support enforcement fights are heard every day in our courts.

One of the more notable cases ever heard in the Harris County family courts involved Yoko Ono Lennon, the wife of John Lennon of the Beatles, and her ex-husband, Anthony D. Cox. Cox embraced the various movements of the sixties, describing himself as a beat, then a beatnik, then a hippie. He became an eccentric American artist and filmmaker and met Ono in 1961, after he had developed an admiration for her avant garde artwork. Cox would later direct Ono’s experimental film No. 4, which was entirely comprised of close-up shots of peoples’ backsides.

Cox and Ono were married on June 6, 1963. Their daughter, Kyoko Chan Cox, was born on August 3, 1963. The marriage quickly fell apart, but the couple stayed together for the sake of their joint career. They performed at Tokyo’s Sogetsu Hall with Ono lying atop a piano played by John Cage.1 Soon the Coxes returned to New York with Kyoko. In the early years of the marriage, Ono left most of the parenting to Cox, who spent hard days working like a dog as a househusband and a publicity manager, while Ono pursued her art full-time.2 Cox apparently agreed to this arrangement—Ono had always made clear that she expected him to be involved in raising Kyoko. Ono and Cox’s romance reached the end in 1966, when Lennon and Ono met at one of Ono’s art shows and became inseparable thereafter.

Ono divorced Cox on February 2, 1969, in the Virgin Islands. The judge signed a decree stating that the child custody issue would be resolved in the future by a “Court of competent jurisdiction.” When the parties divorced, they had a fairly amicable relationship and apparently saw no need to formalize a custody arrangement for Kyoko. However, what was sweet then turned so sour, because Cox and Ono began disagreeing about Ono’s access to Kyoko. These disputes were exacerbated by Cox’s frequent moves to various locales across the universe, including New York, Canada, California, Hawaii and Spain.3 Ono claimed to have spent more than £50,0004 trying to see Kyoko during this period, tracking Cox here, there, and everywhere.

By 1971, Cox had remarried. Melinda Kendall, a museum curator with family in Houston, married Cox and moved with him and Kyoko to the Spanish island of Majorca. One day, Lennon and Ono—and possibly various “henchmen” under their employ—took Kyoko from her school. A criminal proceeding ensued against Ono, and a Spanish court decided that Kyoko should get back to where she once belonged, living with her father. The attempted abduction caused Cox to fear that Ono would try to take permanent possession of Kyoko any way she could. Cox moved with his family to Houston, where he, Kendall and Kyoko settled down and became evangelical Christians.

Ono’s continued frustration at being denied visitation led her to file for custody of Kyoko in the Virgin Islands, where the couple had been divorced. Ono feared that if she chased Cox to Texas, he would simply move to a different place before a custody order was obtained. But, it appeared that Cox agreed it was time that he and Ono got a real solution, and he was finally ready to have a court decide this custody matter.

On July 1, 1971, Cox initiated a child custody proceeding in Harris County. On December 17, 1971, he was named temporary managing conservator, subject to

Ono’s visitation rights, in the Court of Domestic Relations Number Four.5 To make sure that Ono did not use a visitation period as an opportunity to flee with her daughter, Judge Pete Solito o r d e r e d Judge Pete Solito that a $20,0006 bond be posted as a condition of exercise of visitation by Ono.7 Matters came to a head the next day, when Lennon and Ono arrived in Houston to pick up Kyoko for the court ordered visitation. Cox refused to allow her to be picked up by Ono’s lawyer, Ed Murr.8 Cox asserted that Kyoko would suffer “severe emotional distress” if anyone other than Ono were to pick her up. When Ono attempted to collect her daughter in person, she was rebuffed.

The next day, Ono brought a motion for contempt against Cox. On December 22, 1971, Cox appeared at the contempt hearing but refused to bring his daughter. Furthermore, he apparently told the judge that he never would allow visitation because the results would be “disastrous” for his daughter. The judge did not agree and he told him so. Judge Solito found Cox guilty of contempt of court and ordered him jailed for five days.

A writ of habeas corpus was immediately filed, and Justice Phil Peden of the First Court of Civil Appeals, acting ex parte, ordered Cox released on a $5,000 bond pending the determination of the appeal. Cox had contested the validity of the contempt order on various grounds from jurisdictional issues to arguing that he was “emotionally and psychologically unable to comply with the order.” On March, 16, 1972, in an opinion by Chief Justice Tom Coleman, the Court of Appeals rejected all of Cox’s arguments, reversed Peden’s ruling, ordered the writ denied and Cox back into custody.9

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September/October 2011

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The file reflects that the sheriff reapparently believed that in order to keep turned the court’s order with the notaKyoko, he would have to hide his love tion “Returned unexecuted—unable to away. locate.” While the Court of Civil Appeals Having had his orders disobeyed and considered the his authoriwrit, Cox used ty snubbed, the time to make Judge Solito it impossible entered a for any court final and order to be enpermanent forced. During custody dethe pendency of cree in fathe habeas corvor of Ono. pus proceeding, It did her Cox disappeared no good. with eight-yearNotw ithold Kyoko, in standing violation of the thousands custody order Yoko and John Lennon made several public attempts to contact Kyoko of dollars and, in the pro- over the years she lived an underground existence with her father. paid to pricess, forfeited his bond. Cox later said vate investigators, Ono was unable to that he believed he was not getting a fair get custody or even visitation with her shake in the court proceedings and that daughter. Kyoko and her father totally it was only a matter of time before Lenand completely disappeared. non and Ono would be able to use their Living an underground existence, Cox influence to take Kyoko from him. Cox became a nowhere man, knowing not

where he’s going to. He changed Kyoko’s identity nine times. Her aliases included Rosemary, Ruth Holman, and Kay. Early on, Cox got by with a little help from his friends, who introduced him to a religious group called the Church of the Living Word, also known as “The Walk.”

The Walk was different from a typical mainstream church, and it was characterized as a blend of Pentacostalism, occult practices and Eastern mysticism.

Cox and Kyoko joined the church and lived with its members in Iowa and California. After five years with The Walk, Cox was discontented with its practices, so he and Kyoko left the church and again seemed to vanish in the haze.

Ono made several public attempts to contact Kyoko over the years, including at least two televised pleas for visitation and the song “Don’t Worry, Kyoko.”

One televised plea occurred on The Dick Cavett Show, where Ono appeared with John Lennon to discuss various matters of culture and music. When Cavett asked Lennon about his home, Lennon said it

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would be a great place for Kyoko to visit and asked Cox to allow Ono to see her daughter.10 Less than a year after that appearance, Lennon and Ono returned to The Dick Cavett Show and, during the course of their interview, summarized their custody dispute with Cox.11 Lennon said that he and Ono now had two courts, the Harris County court and the court in the Virgin Islands, that had given Ono custody of Kyoko, but that Cox was hiding with Kyoko somewhere in the U.S. Visibly agitated, Lennon said that Cox’s behavior was “killing” Ono because it had been two years since Ono had seen Kyoko and one year since Ono had spoken to her on the phone.

Unfortunately for Ono, there would be no reply to her pleas for many years. In 1980, Cox and seventeen-year-old Kyoko briefly resurfaced, sending Ono a sympathetic telegram after Lennon’s murder.

Then, around 1986, Cox unexpectedly materialized again to give an interview to People magazine.12 The article discussed Cox’s life on the run with Kyoko and his past involvement with The Walk.

Cox revealed that Kyoko had turned out to be “a marvelously bright woman” and that, despite her unusual childhood, “she came out of the experience smelling like a rose.” Since Kyoko was now an adult, Cox said, it would be Kyoko’s choice whether to have a relationship with Ono, and that she was not fond of being in the public eye. Afterward, the bitterness between the parents lessened slightly, and Ono publicly announced in an open letter that she would no longer seek out Kyoko but still wished to make contact with her.

Ono would not hear from Kyoko until 1994, when Kyoko, 31, decided to start her own family. Subsequently, Kyoko met Ono and her stepbrother, Sean Lennon. In 2001, Kyoko appeared with Ono in a British television special called The Real Yoko Ono. Kyoko has described the years away from her mother as painful but affirms her love for her father. She acknowledges that Cox had problems

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27

W

ho could resist using the Beatles iconic lyrics in an article that involves a Beatle? Not the author, nor the editors. Here’s a look at all 20 instances where song lyrics appear in the article:

Lyrics

Song Title

Album

1 “eight days a week”

“Eight Days a Week”

Beatles for Sale (1964)

2 “long and winding road”

“The Long and Winding Road”

Let It Be (1970)

3 “working like a dog”

“A Hard Day’s Night”

A Hard Day’s Night (1964)

4 “the end”

“The End”

Abbey Road (1969)

5 “what was sweet then “Savoy Truffle” turned so sour” Original lyric: “what is sweet now, turns so sour” 6 “across the universe”

“Across the Universe” Let It Be (1970)

7 “here, there, and everywhere”

“Here, There and Everywhere”

Revolver (1966)

8 “get back to where she once “Get Back” belonged” Original lyric” “Get back to where you once belonged”

Let It Be (1970)

9 “got a real solution” Original lyric: “You say you’ve got a real solution”

“Revolution” or “Revolution 1”

Revolution is from Side B of the “Hey Jude” single (1968). Revolution 1 is from The Beatles (or The White Album) (1968).

Mark Davidson is a retired judge and a resident of the City of Bellaire.

“Nowhere Man”

Rubber Soul (1965).

Endnotes

10 “nowhere man” “knowing not where he’s going to” Original lyric: “knows not where he’s going to”

28

The Beatles (or The White Album) 1968

but believes that his behavior was motivated by love because Kyoko was his only child.

In 2003, Ono and Kyoko were seen together celebrating Ono’s seventieth birthday. Over the years, Kyoko has grown closer to Ono and Sean and still keeps in touch with Cox. Kyoko attempts to keep a low profile. She reportedly is married with children and works as a teacher. That Ono and Kyoko’s relationship seems to be getting better all the time is proof that all you need is love.

Sadly, the original file of this case (with autographs of some value) was shredded by the District Clerk’s office in the mid1980s. Today, we are left with microfilm copies of varying quality to tell us the tragic story of a father who flouted authority and kept a child from her mother in the name of love.

Imagine.

11 “got by with a little help from “With A Little Help his friends” Original lyric: “I From My Friends” get by with a little help from my friends”

Sgt. Pepper’s Lonely Hearts Club Band (1967).

12 “seemed to vanish in the haze” Original lyric: “seems to vanish in the haze”

“Help!”

Help! (1965).

13 “The judge did not agree and he told him so.” Original lyric: “The judge does not agree and he tells them”

“Maxwell’s Silver Hammer”

Abbey Road (1969).

14 “he would have to hide his love away” Original lyric: “you’ve got to hide your love away”

“You’ve Got To Hide Your Love Away”

Help! (1965).

15 “no reply”

“No Reply”

Beatles For Sale (1964).

16 “getting better all the time”

“Getting Better”

Sgt. Pepper’s Lonely Hearts Club Band (1967).

17 “all you need is love”

“All You Need Is Love”

Magical Mystery Tour (1967).

28 “Imagine”

“Imagine”

Imagine (1974). By John Lennon.

19 “Number 9 Dream”

“#9 Dream”

Walls and Bridges (1974). By John Lennon.

20 “back to the U.S.S.R.”

“Back in the U.S.S.R” The Beatles (or The White Album) 1968.

September/October 2011

Cage was an American composer best known for his 1952 composition 4’33”, the three movements of which are performed without a single note being played. Sort of like a Number 9 Dream.

2. This information came from a Wikipedia entry on Yoko Ono. See http://en.wikipedia.org/wiki/ yoko_ono.

3. Because Cox never went to the Soviet Union, Ono never had to go back to the U.S.S.R. It would have done her little good if she had, since the Soviet Union was not (and Russia is not) a signatory to Section 20 of the Hague Convention.

4. This is about $120,000 in 1971 dollars, or about $600,000 in 2011 dollars.

5. Court of Domestic Relations Number Four became the 311th District Court in 1977.

6. Adjusted for inflation, this is about $110,000 in 2011 dollars.

7. For what it is worth, John Lennon and Yoko Ono had married on March 20, 1969.

8. Ed Murr was a partner in the firm of Solito, Murr and Vetrano before the senior named partner became judge.

9. Ex parte Cox, 479 S.W.2d 110 (Tex. Civ. App.— Houston [1st Dist.] 1972, orig. proceeding).

10. http://www.youtube.com/ watch?index=18&v=9Lftib KEA7U&list=PL064C0F53F492BEE6. The discussion about Lennon’s house begins at about the 3:13 minute mark.

11. http://www.youtube.com/watch?v=SDZeH9KJAUs. The discussion about Kyoko begins at about the 5:55 minute mark.

12. Calio, Jim. “Yoko Ono’s Ex-Husband, Tony Cox, Reveals His Strange Life Since Fleeing with Their Daughter 14 Years Ago.” People, Vol. 25, No. 5, February 3, 1986, available at: http://www.people. com/people/archive/article/0,,20092860,00.html 1.

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100 Things You Might Not Know About the HBA

G

iven this issue’s focus on historical interests, it seemed appropriate to include some history of the HBA as well.

The list includes interesting, unique, historic, or helpful facts about the HBA’s past, present, and future. Of course, readers likely will have their own “Things to Know about the HBA” that could be added to this list. If you have any questions about any of the programs or volunteer opportunities offered by the HBA, please call the HBA office at 713-759-1133.

1. The Houston Bar Association was first formally organized in 1870, but little is known about its activities because of an absence of internal records. That iteration of the HBA dissolved sometime during the later 1870s.

2. The Harris County Bar Association appeared in December 1901 with the mission of “weeding out shysters.”

The present day Houston Bar Association was formed on March 26, 1904 30

September/October 2011

to “cultivate a social spirit” among lawyers.

3. The first president of the Houston Bar Association in 1870 was Judge Peter Gray, a distinguished jurist who was one of the founding members of the law firm of Gray, Botts & Peter Gray Baker (now Baker Botts) and who later served on the Supreme Court of Texas.

4. An April 1870 article in the Houston Telegraph reported that the newly formed Houston Bar Association’s objectives were “raising the standard of the legal profession and the purchase of a law library.”

5. In 1870, most of Houston’s 37 lawyers had offices around Courthouse

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Square, which was bordered by Congress, Preston, Fannin and San Jacinto streets.

6. Oran T. Holt, president of the Harris County Bar Association from 19011903, later served as mayor of Houston.

7. Attorneys who wanted to join the HBA in 1904 had to submit to the president an application that was “endorsed and vouched for by three members of the association in good standing.” The application then went before the association, where four-fifths of the members present had to vote in favor of the applicant by secret ballot.

8. To join the HBA in 1904, attorneys paid a $5 admission fee and annual dues of $3.

9. The earliest group photo of HBA members dates from 1912. It is a composite photo of the HBA’s 284 members and included two women: Hortense Ward, the first woman licensed in Texas, and Alice Tiernan.

10. The first HBA publication appeared in 1939 and was called the Syllabus.

11. The HBA has published a pictorial roster of members since 1939.

12. During the United States’ involvement in World War II, almost one-third of all HBA members were on active military duty.

13. Starting in the early 1940s, the HBA leadership was instrumental in establishing both prongs of indigent defense in Houston – civil and criminal.

Houston was the first city in Texas to operate a legal clinic with a full-time director.

14. The HBA has had only five executive directors (initially called “executive secretaries”) since 1939: Ruth Laws, 1939-1962; Ann Krohn, 1962-1969; Gay Platt, 1969-1976; Burton Berger, 1976-1981; and Kay Sim, 1981-present.

15. There have been three sets of parentchild HBA presidents: the Hon. Ewing Werlein (1942) and the Hon. Ewing Werlein, Jr. (1988-89); Charles R. “Bob” Dunn (1979-80) and Amy Dunn Taylor (2000-01); and James B. Sales (1980-81) and Travis J. Sales (200809). Ewing Werlein, Jr.’s great-uncle, Judge Presley K. Ewing, also served as president of the HBA in 1912.

16. The Houston Bar Association Auxilia-

ry, originally called the Women’s Auxiliary, was established in 1948. Its initial role was to help with social events, including the first Harvest Party and the State Bar Annual Meeting. Today, the HBA Auxiliary also sponsors programs that serve the profession and the community.

17. From 1949 until 1998, the Harvest Party was strictly a social event. In 1999, it became the major fundraiser for the Houston Bar Foundation.

18. Wilminor Carl was the first woman to serve on the HBA Board of Directors in 1952. She graduated from the University of Texas Law School in Wilminor Carl 1929. Ms. Carl, born in 1905, recently celebrated her 106th birthday.

19. The HBA has had its office in five locations: the Harris County courthouse, the Houston Club building, the Houston Bar Center Building, Texas Commerce Tower, and First City Tower, its present home.

20. The HBA’s current CLE program was established in the early 1960s as the Lectures and Institutes Committee. In 1965 it became the Continuing Legal Education Committee.

21. In its early days in the 1960s, Houstonians could call the Lawyer Referral Service and make an appointment for $1 to discuss their legal problem with a qualified attorney. Under the program, lawyers charged only $10 for a full hour of advice.

22. The first issue of The Houston Lawyer was published in November 1963. The editor-in-chief was attorney Quinnan Hodges.

23. In 1965, under the administration of W. James Kronzer, the HBA removed the “white only” clause in its constitution.

24. From the late 1960s through the early 1990s, the Inns of Court Club operated as a place for Houston attorneys to have lunch and socialize with clients and one another. The club got its name from a group of HBA members

who met for lunch and refreshments every Friday in a room at the Houston Club.

25. Twenty-three HBA presidents also each served as president of the State Bar of Texas.

26. Leon Jaworski also had the distinction of serving not only as HBA president but also as State Bar president (196263) and American Bar Association president (1971-72).

27. The HBA celebrated its centennial in 1971 with a dinner at the Astroworld Hotel. During 100 years, the association had grown from 100 members to more than 2,800 members. Royce Till presided over the dinner as president.

Introductory remarks were made by Leon Jaworski, then ABA PresidentElect, with a keynote address by Chief Justice Robert W. Calvert of the Texas Supreme Court.

28. The HBA has conducted judicial polls since 1971. In election years, the HBA conducts the Judicial Candidate Qualification Questionnaire before the primary and the Judicial Preference Poll before the general election. In nonelection years, the HBA distributes a Judicial Evaluation Questionnaire to determine members’ evaluations of sitting judges.

29. The Juvenile Justice Mock Trial Program is one of the HBA’s oldest community service programs. In 36 years, the program has taught over 37,000 eighth graders about the legal system and the courts.

30. The Dispute Resolution Center was originally established in 1980 as the Neighborhood Justice Center, with seed money from an American Bar Association grant to establish alternatives to formal litigation.

31. In 1981, the HBA established its first private attorney pro bono program to represent the “working poor” of Harris County, which has now evolved into the present day Houston Volunteer Lawyers Program.

32. The Hon. Joe L. Draughn was Associate Presiding Judge for the City of Houston when he served as president of the HBA in 1981-82. He went on to serve as an appellate justice.

33. The Houston Bar Foundation was established as the charitable arm of the HBA in 1982. William Key Wilde

was HBA president, and James B. Sales served as the Foundation’s first chairman of the board in 1983.

34. The forerunner of the Houston Young Lawyers Association was the Houston Junior Bar, organized in 1937. The president of HYLA sits on the HBA board of directors as an ex officio member.

35. Ten HBA presidents have also served as president of the Houston Young Lawyers Association: Denise Scofield, T. Mark Kelly, Hon. Andrew S. Hanen, Scott E. Rozzell, Otway B. Denny, Jr., Albert B. Kimball, Jr., John J. Eikenburg, James Greenwood III, John L. McConn and Lewis W. Cutrer.

36. Five HYLA presidents later chaired the Houston Bar Foundation: Mark S. Snell, T. Mark Kelly, Scott E. Rozzell, Otway B. Denny, Jr., and John D. Ellis, Jr., 37. The HBA Historical Committee has conducted “Living History” interviews with 84 distinguished members of the legal community to preserve their memories and perspectives on law practice in Houston. This is an ongoing project of the committee.

38. In March 1985, during the administration of Frank B. Davis, the HBA joined Allied Bank of Texas in sponsoring the Art and the Law exhibit presented

by West Publishing Company. The program was a nationally-recognized forum for artists to express their concepts of law in our society.

39. When a Harris County judge is sworn in, the HBA assists in posting notices at the courthouse, in the Houston Bar Bulletin and on the HBA website, and also prepares and distributes programs, and greets guests at the door of the courtroom, if requested by the judge.

40. The first Law Week Fun Run benefiting The Center (at the time called The Center Serving Persons with Mental Retardation) was held on May 3, 1986. It was sponsored by Commonwealth Financial Group and coordinated by the HBA and HYLA. Later

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31

renamed for the late John Eikenburg, who started the run as HBA president, it is today one of the longest-running charitable fun runs in Houston and has raised nearly $929,400 for The Center, which serves people with developmental disabilities.

41. In 1985, the HBA established the “Judicare” program to provide free legal services to senior citizens over the age of 60. Now called the Elder Law Program, it continues to provide wills and other legal services to low-income seniors.

42. The LegalLine program was established in 1985, giving the public the opportunity to call the HBA office and speak to an attorney over the phone for answers to legal questions, brief legal advice and other resources.

In 1991, the LegalLine program expanded to twice a month, on the first and third Wednesday. The LegalLine program is staffed by 24 volunteer lawyers each night it is provided, for a total of 48 volunteers monthly.

43. In 1986, the HBA partnered with the Mexican American Bar Association and Hispanic Bar Association to offer Consejos Legales, a LegalLine program held on the first Thursday of each month for Spanish-speaking residents.

44. A 1986 Houston Bar Bulletin attempted to recruit attorneys interested in starting a bass fishing tournament. As there has never been an official HBA bass fishing tournament, that article must have been overlooked by most readers.

45. The first issue of The Houston Lawyer that was devoted to one specific area of law was the September-October 1986 issue on Alternative Dispute Resolution. Harold Metts of Baker Botts was president of the HBA. 46. A former editor-in-chief of The Houston Lawyer is now a federal judge – the Hon. Sim Lake, who was editor in 1986-87 as a partner at Fulbright & Jaworski.

47. In September 1987, the HBA joined the celebration of the Bicentennial of the Constitution by sponsoring commemorative banners throughout downtown, at the urging of HBA President Raymond C. Kerr. At the city’s huge celebration at Sam Houston Park and along the bayou, the HBA 32

July/August 2011

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sponsored a stage that included performances by local groups and “Constitutional Capers” spotlighting attorneys and members of the judiciary.

48. The Houston Lawyer began its tradition of interviewing each new president of the Houston Bar Association in 1988, with the Hon. Ewing Werlein, Jr., who was then a partner at Vinson & Elkins and currently serves as a United States District Judge for the Southern District of Texas.

49. The HBA’s all-lawyer musical production, “Night Court,” has been running since 1989, raising over $500,000 for local charities. This year’s production, held at the Wortham Center, featured more than 50 lawyers and judges.

50. The HBA Special Olympics Committee, established in 1989 by the Hon. Eugene Cook as president, has garnered awards as the only volunteer effort of its kind by a bar association in Texas. Justice Cook was appointed as a Texas Supreme Court Justice after being elected president of the HBA. He traveled back and forth from Austin to serve his year as president in 1989-90.

51. The Committee on Minority Opportunities in the Legal Profession was established by HBA President Pearson Grimes in 1990-91. In 2011, the committee marked 14 years of sponsoring its 1L Summer Clerkship Program for minority students in all three Houston law schools.

52. On May 1, 1991, the HBA, the Harris County Historical Commission, and the law firm of Butler & Binion dedicated an Official Texas Historical Marker to commemorate the history of the HBA. It is located in front of the 1910 Courthouse on Fannin Street.

53. In 1992, under the administration of Ben L. Aderholt, the Houston Bar Association published A Commitment to Public Service: The History of the Houston Bar Association. The book was

written by Eric L. Fredrickson, who had a master’s degree from the University of Houston’s Institute for Public History and was then a student at the University of Houston Law Center.

54. Based on an ABA program, the Interprofessional Drug Education Alliance (IDEA) program was created in the 1992-93 bar year to send teams of lawyers and medical professionals into 5th grade classrooms to talk about the legal and medical consequences of substance abuse. Today, the program has reached over 45,000 students.

55. In 1989, the HBA board of directors adopted “Professionalism: A Lawyers Mandate,” to encourage and inspire lawyers to follow the highest standards of the profession. The mandate is still given to every new HBA member and to every new Harris County judge.

56. Since the 1993-94 bar year, the HBA has been a co-sponsor of The People’s Law School, presented by Richard Alderman and the UH Center for Consumer Law. Approximately 400500 people attend each fall and spring session, learning about laws that affect their daily lives.

57. For the cover of its 30th anniversary issue in 1993, the first editor-in-chief of The Houston Lawyer, the late Quinnan Hodges, was seated at a piano at the Inns of Court Club while other former editors held up a birthday cake, which they later enjoyed at a commemorative luncheon.

58. Since 1995, the HBA has contributed more than $295,000 to print and distribute over 280,000 free legal handbooks in the community.

59. In 1995, under the administration of Kelly Frels, the HBA published the Elder Law Handbook - the first in a series of three free legal handbooks for the public. It was followed by the Family Law Handbook in 1997, and the Consumer Law Handbook in 1998.

60. The HBA’s free Elder Law, Family Law and Consumer Law Handbooks are printed in both English and Spanish, and have also been printed in Chinese, Korean and Vietnamese, in conjunction with the Asian legal community.

61. Prior to 1997, The Houston Lawyer was primarily published in black and white, with color covers and some spot color inside. In January-February 1997, it transitioned to a four-color publication.

62. The HBA launched its first website in 1997.

63. An HBA team sponsored by the HBA Lawyers for Literacy Committee has won nine first-place titles in the Houston READ Commission’s Great Grown-up Spelling Bee, benefiting literacy projects. An HBA team has won the title outright seven times and

tied for first place twice.

64. The first HBA Habitat for Humanity house was built in 1998 during a “blitz week” supported by former President Jimmy Carter, who visited the HBA home during its construction. The Hon. Richard Trevathan was president when the HBA established a task force to raise funds for its first house; D. Gibson Walton was president when the first house was built; and the Hon. Andrew S. Hanen chaired the first Habitat Committee as president-elect. In 2007-08, HBA President Tommy Proctor added a component that provides wills for Habitat homeowners.

65. The HBA has now built 14 homes through Habitat for Humanity and is currently raising funds for a 15th home.

66. The HBA celebrated its 125th anniversary on May 19, 1995, with a gala at the Westin Oaks Ballroom, where more than 800 guests attended. Special guests were the Justices of the Supreme Court of Texas, the Court of Criminal Appeals, and the Fifth Circuit Court of Appeals, as well as May-

or Bob Lanier. Kelly Frels of Bracewell & Giuliani passed the gavel to Charles R. Gregg of Hutcheson & Grundy as HBA President.

67. The HBA has a 30-minute video on its history, “125 Years of Justice, Service and Professionalism,” narrated by iconic Houston news anchor Ron Stone and produced by Stonefilms.

68. Since 1998, the HBA Lawyers for Literacy Committee’s annual Fall Book Drive has distributed over 203,000 books to local shelters and literacy projects.

69. In 2000, the American Bar Association’s Standing Committee on Legal Services honored the HBA with the Louis M. Brown Award for outstanding programs that serve the legal needs of people with modest means.

70. Roland Garcia in 2001-02 was the first Hispanic to serve as president of the Houston Bar Association.

71. I n 2002-03, HBA President Tom Godbold established “A Year of Giving,” the HBA’s annual blood drive in the legal community. In 2008, the blood drive was renamed after the late Paul

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E. Stallings, a Vinson & Elkins partner and longtime supporter of blood donation.

72. For its 40th anniversary issue in 2003, The Houston Lawyer gathered 17 of its former editors-in-chief in front of the printing presses at EarthColor Houston for a cover photo. The anniversary edition also featured an insert with an exact replica of the first November 1963 issue.

73. In 2003-04, HBA President Michael Connelly directed the HBA to develop KidZone, a section of the website that provides information on laws, civics, safety and other topics for children, teens, parents and educators.

74. The HBA has been honored four times with the National Association of Bar Executive/LEXIS Public Service Achievement Award: 1994 – Lawyers in Public Schools Program; 1997 – Legal Handbook Series; 2004 – A Year of Giving Blood Drive; and 2009 – Veterans Legal Initiative.

75. In 2004-05, HBA President Rocky Robinson and the Lawyers Against Waste Committee planted 300 trees in MacGregor Park during the spring Trash Bash.

76. In 2005-06, the HBA established its program on “The Importance of Jury Service” which has now reached nearly 22,000 high school seniors.

HBA President Randy Sorrels also learned about the importance of hurricane preparedness that year, as he led disaster relief efforts for Hurricanes Katrina and Rita.

77. The Houston Lawyer won first place for public relations magazines in the 2008 Lone Star Press Awards for an issue on legal problems facing veterans.

78. In the past two decades, the HBA has nine times won the State Bar of Texas Award of Merit for best overall programs of a large bar association.

79. In 2008, the HBA won the Tweed Award, the American Bar Association’s highest honor for a local bar association, for its Equal Access Initiative, established by 2006-07 president Glenn A. Ballard, Jr., in which law firms and corporations pledge to handle a number of pro bono cases 34

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each year (for a period of five years) based on firm size 80. In 2008, HBA president, Travis Sales, established the HBA’s Veterans Legal Initiative to provide legal counsel and ongoing representation for lowincome veterans. Through Friday clinics at the VA Medical Center and other programs, the initiative has served over 4,500 veterans and their families.

81. The HBA established a partnership with Communities in Schools Houston in 2009-10, with the support of HBA President Barrett H. Reasoner.

The program places high achieving students from at-risk schools and situations in internships with law firms and other legal offices.

82. The HBA is traditionally among the top three trade and professional organizations in the Houston Business Journal’s Book of Lists each year.

83. The HBA held its 25th Law & the Media Seminar in January 2011. The topic was “Terrorism and the Law.” The planning committee has both an attorney co-chair and a media cochair.

84. During the 2010-11 bar year, volunteer attorneys staffing LegalLine answered 6,706 calls from the public.

85. During the 2010-11 bar year, the HBA reception desk received 42,478 calls.

86. As of May 2011, the HBA’s membership is 33 percent women and 67 percent men.

87. As of May 2011, nine percent of HBA members identify themselves as a minority.

88. The HBA is currently the fifth largest metropolitan bar association in the nation, with 11,500 members.

89. This year, the HBA began a partnership with the radio program, “Our Military Heroes,” airing from 5:006:00 p.m. on KKHT 100.7 FM and KNTH 1070 AM, bimonthly on the second Sunday, to provide information on legal issues for veterans, military personnel and their families.

90. The HBA has 13 full-time staff members. Departments include Administration, Education, Committees & Events, Communications and Membership.

thehoustonlawyer.com

91. The HBA has 35 standing committees.

92. The HBA has 27 sections, ranging from Antitrust and Trade Regulation to Tax. 93. On both Law Day (May 1) and Constitution Day (September 17) of each year, the HBA president, the Harris County administrative judge and the Harris County District Clerk distribute pocket-size copies of the U.S. Constitution to all citizens who report for jury duty in the morning.

94. The HBA has had three women presidents: Lynne Liberato (1993-94), Amy Dunn Taylor (2000-01), and Denise Scofield (2011-12).

95. In 2001, the HBA began sending the e-Bulletin to all members via email as a supplement to the monthly Houston Bar Bulletin.

96. The CLE Committee sponsors an average of six programs a month on varying topics of interest to its members. For more information, visit the HBA’s website.

97. The Attorney Ready Rooms in the Harris County courthouses were furnished by contributions from the Litigation Section, the Criminal Law & Procedure Section, and the Juvenile Law Section.

98. The HBA has been asked to work with the county to raise funds for permanent display cases on the 6th floor of the restored 1910 Courthouse to feature historical documents and items. The space will be open to the public.

99. In an average month, the HBA office hosts 12-15 committee meetings.

100. In September 2011, the Texas Access to Justice Foundation awarded a grant to the Houston Bar Association, the Jefferson County Bar Association, and Fort Bend Lawyers Care to enable the creation of a 14-county coalition to serve the legal needs of the nearly 350,000 veterans who live in those counties.

Compiled by Tara Shockley, communications director of the Houston Bar Association, and Keri Brown of Baker Botts L.L.P., associate editor of The Houston Lawyer.

Photos: Nash Baker Photography

Harris County’s 1910 Courthouse T

Justice Restored:

he historic 1910 Courthouse was rededicated on August 23, 2011 and opened to the public on September 6. Originally built in 1910, the Courthouse is listed on the National Register of Historic Places and is designated as a Texas Historic Landmark. The 21st-century restoration turned back time in many respects, as one of the first tasks in the project was to remove the evidence of the 1950s modernization that hid much of the original design and beauty of the Courthouse. Today, the 1910 Courthouse is the home of the First and Fourteenth Courts of Appeals. Over a two-and-a half year restoration period, Nash Baker worked with Vaughn Construction to capture photos of the process.

Profiles of both Nash and our cover photographer, Jim Olive, are provided on page 49. The Houston Lawyer is grateful to Jim and Nash for the use of their photos.

After being covered up by expanding courtrooms beginning in the 1950s, the stunning stained glass rotunda was restored to its former beauty.

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The one-inch tiles were restored in original colors.

[Top & Bottom] Two courtrooms were restored, complete with the mezzanines used to view early trials.

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The marble staircase also is a centerpiece of the restoration.

Every detail was carefully restored.

Restoring plaster and stone details.

A crane sets the finial on top of the 1910 Courthouse. thehoustonlawyer.com

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A Profile in professionalism

T

The Honorable Jennifer L. Walker Elrod Judge, United States Court of Appeals for the Fifth Circuit

The Houston Lawyer

he flexible, change-on-a-dime attitude that is often necessary to survive in our rapidly evolving world threatens to distract us from the reflective disposition that makes excellence in professionalism possible. Unlike keeping pace with constant technological change, excellence in professionalism requires rigid adherence to an unchanging set of values. Thus, our ethical and professional duties call on us to remember—to remember our core values, our common goals, and our individual roles in service to a system far bigger than any individual.

In order to make remembering and adhering to these values easier, three retired chief justices of the Texas Supreme Court created the Texas Center for Legal Ethics in 1989. The Texas Center for Legal Ethics seeks to promote the values contained in the Texas Lawyer’s Creed of Professionalism, which memorializes our bedrock principles of excellence 38

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in professionalism. The same values worthy of memorial in 1989 endure unchanged today, and excellence in professionalism requires us to remind ourselves of them continually. To that end, we should remember—and continue to remember—the values presented in the Texas Lawyer’s Creed: The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system... We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service...

Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

COMMITTEE SPOTLIGHT

The HBA Historical Committee

By Lionel M. Schooler

C

one location. The Bar and the committee icero said that “History is the welcome contributions of potential archiwitness that testifies to the val material from the membership and the passing of time; it illumines public. reality, vitalizes memory, provides guidance in daily life BOOK ON THE HISTORY OF THE BAR and brings us tidings of antiquity.”1 The These initial efforts were followed by the HBA’s Historical Committee is dedicated to first major project undertaken by the Hispreserving that testimony. torical Committee — publishing a book In 1987, the Houston Bar Association on the HBA’s hislaunched the comtory. Guided by the mittee to coincide committee, the HBA with the Bicenteneventually succeednial celebrations of ed in publishing the U.S. Constitu“A Commitment to tion. Harold Metts Public Service: The of Baker Botts, the History of the HousHBA president that ton Bar Association” year, wanted to ensure a formal means Lionel M. Schooler (left) prepares to interview in 1992. This book, which was sold both of compiling and Steve Susman for the Living History Series. through the HBA and through local bookmaintaining the history of the HBA, which stores, was the result of a collaborative efwas established in 1870 and is now the fort between the Bar and Eric Fredrickson, fifth largest metropolitan bar association who was then a post-graduate student at in the United States. The legacy of Mr. the University of Houston’s Institute for Metts’ administration has been shepherded Public History (and a future lawyer). Mr. and guided through the years by longtime Fredrickson undertook the task of combHBA Executive Director Kay Sim and longing HBA archives, as well as the archives of time HBA Communications Director Tara the City of Houston, the State Bar of TexShockley. as, the Houston Public Library and local newspapers. He also interviewed numerCOLLECTING ARCHIVAL MATERIALS ous past presidents and other bar leaders The initial efforts of the Historical Comabout the association. mittee were devoted to working with HBA staff to collect and archive HBA historical LIVING HISTORY SERIES material, including minutes, photographs, The committee also inaugurated a living scrapbooks, documents and early pubhistory series by having its members videolications of the Houston Bar Bulletin and tape interviews with senior members of the The Houston Lawyer magazine. Following Houston legal community. Work on the the HBA’s move into its present offices in “living history of the Bar” has been ongoFirst City Tower in 1990, HBA designated ing since that time, and the result of this efa room as the “Archives Room” to ensure fort has been to preserve perspectives and organized efforts to store such materials in

anecdotes on the history of life, and the practice of law, in Houston. To date, more than 80 such interviews have been conducted, many with assistance from Vinson & Elkins LLP, which makes its Media Services Department available for videotaping the interviews.

However, many more such interviews remain to be done. The committee invites anyone who is interested to volunteer to conduct such an interview, or to recommend a person for interview. Those interested in volunteering should contact Tara Shockley at the HBA’s office (713-7591133) or by e-mail (taras@hba.org) for more details.

PRESERVING ARCHIVAL MATERIALS In the mid-1990s, the committee was instrumental in recruiting law librarians Elizabeth Black Berry and Chris Anglim to assist it in ordering archival materials to begin the process of preserving HBA records, a daunting task given the fragile condition and age of many such materials. In 2007, the HBA Board approved the Historical Committee’s preservation plan to digitize HBA archives and make them more accessible. Committee member Grady Cayce enlisted the help of LIT Group, now Gulfstream, who agreed to perform the digitizing of documents on a pro bono basis.

Gulfstream worked with HBA staff to scan and digitize Houston Bar Bulletins, starting with the earliest ones from the 1940s through the 1990s.2 As indicated in the endnotes, this project also welcomes interested volunteers.

HARRIS COUNTY HISTORICAL RECORDS PRESERVATION The committee has also provided assis-

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COMMITTEE SPOTLIGHT

tance to the Harris County Clerk’s office in the development of the Harris County Historical Records Preservation Project, which continues to restore and preserve thousands of historical case files, working through the Houston Bar Foundation (HBF) to raise funds for the project. Spearheaded by Judge Mark Davidson, the bar has solicited donations from individuals and companies to preserve specific volumes of the District Clerk’s case files. The committee and the HBF have also provided assistance to the District Clerk’s Office in developing strategies for cataloging and enhancing access to preserved records.

This project has helped many old and forgotten cases to come to life for new generations of readers.3 ARTICLES OF HISTORICAL INTEREST The committee also suggests and prepares historical articles on lawyers and related topics for The Houston Lawyer. In 2008,

the committee assisted The Houston Lawyer editorial board in publishing an awardwinning legal history issue. The issue in which the instant article appears is yet another issue of The Houston Lawyer devoted to the Bar’s legal history, a priority declared by Denise Scofield, HBA President for 2011-12, for her administration. The Houston Lawyer has maintained a longtime commitment to publishing articles of historical interest, such as its 2002 article about the commemoration of the 100th anniversary of the United States District Court for the Southern District of Texas.4 HISTORICAL DISPLAYS ABOUT THE BAR The committee’s most recent project is being undertaken in conjunction with the opening of the newly-restored 1910 Courthouse at 301 Fannin. The courthouse houses all justices of the two Courts of Appeals sitting in Houston (the First and Fourteenth) and their staffs and court-

rooms. It was rededicated on August 23 and was officially opened on September 6, 2011.

Through a joint collaboration among the Bar, the committee, the Houston Bar Foundation, the County, the Courts of Appeals, and the Texas State Historical Commission, the HBA has received approval to have dedicated for Bar use a display area on the west side of the sixth (top) floor of the 1910 Courthouse, immediately adjacent to the rotunda. The Historical Committee is working with the HBA and the Houston legal community to develop historical displays that will be domiciled in special display cases within this dedicated area. The committee is also assisting the Houston Bar Foundation to raise the funds needed for the purchase of the furniture and display cases that will be situated in this area.

CONCLUSION The Historical Committee will continue its efforts to capture the “testimony” of Houston’s legal history. “The HBA Historical Committee has been an integral part of preserving and documenting the history of the HBA and the Houston legal community for many years,” said Denise Scofield, HBA president. “I encourage any member who is interested in our history to get involved with these efforts.”

Lionel M. Schooler, an equity partner in the Houston office of Jackson Walker L.L.P., serves with Justice Jane Bland and Todd Frankfort as 2011-2012 co-chair of the Houston Bar Association’s Historical Committee.

Endnotes 1.

The Houston Lawyer

2.

3.

4.

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Cicero, Pro Publio Sistio.

This project was halted after the Houston Bar Bulletins from the 1940s to 1992 were digitized, and therefore the committee requires assistance to complete this project. The committee also currently needs assistance in converting to DVD interviews originally recorded on VHS videotape.

Those interested in supporting this very worthwhile project can obtain more information about it from Tara Shockley at taras@hba.org.

Wynne, Michael, The Houston Lawyer, Vol. 39 No. 5, March-April 2002 at 40.

Media Reviews

Lone Star Law: A Legal History of Texas

By Michael Ariens Texas Tech University Press, 2011 284 pages, notes and index

P

Reviewed by James W. Paulsen rofessor Michael Ariens’ new book, Lone Star Law, is without doubt the best legal history of Texas in print. Actually, it is the first and only book-length legal history of the state—ever. Lone Star Law covers a lot of ground in less than 300 pages. It also is a surprisingly good read.

Michael Ariens teaches law at the St. Mary’s Law School in San Antonio, specializing in constitutional law, the legal profession, and legal history. The publisher’s squib says Professor Ariens has been working on this book for five years, and the finished product looks like it.

The structure of Lone Star Law generally is well thought out. The book begins by setting out some significant features in the development of Texas law in rough chronological order, beginning in 1718 (when Texas became a province of Spain), ending in 1920 (women’s right to vote and race riots), and divided into two chapters at the end of the Civil War. The chronological ending point seems a little arbitrary. A lot has happened to Texas law since the end of World War I. Fortunately, Ariens goes a long way toward filling the gap in the remaining six chapters.

These are organized by subject matter: civil (including procedure and tort law), criminal (including civil rights), family, property (including oil and water rights), and corporate (including railroad law). Here, Professor Ariens sometimes brings the discussion right up to the present day. For example, his

discussion of legal education includes the formation of Texas Wesleyan Law School and the U.S. News rankings. Coverage of judicial politics goes past the swing from a plaintiff to defense-oriented Supreme Court in the early 1990s, and even touches on the 2008 Harris County judicial races.

Stylistically, Ariens has targeted “the interested lay reader.” He promises to “avoid legal jargon as much as possible and explain legal concepts as simply as possible.”

Though there are occasional lapses (perhaps inevitable when a law professor tries to write as a non-lawyer), Ariens for the most part follows through on his promise. But lawyers should not be put off by the claim the book is written for the general public. Many of us have tried to avoid thinking about corporations, or real estate law, or civil or criminal litigation, ever since the day we got our Bar results. Ariens has a lot to say about all these subjects, and his efforts to simplify should also be appreciated by legal non-specialists — like this reader.

Substantively, Ariens sets some lofty goals: to examine the interplay between Texas law and culture, to explore how Texas “exceptionalism” has influenced law (“exceptionalism” being every true Texan’s knowledge that Texas is far better — except, perhaps, in summer temperature — than anywhere else), to demonstrate the influence of the “hustler” mentality, and to avoid mythologizing Texas law. That’s a lot for any one book to take on.

It’s not altogether clear Professor Ariens accomplishes that goal. To this reader, that’s a good thing. Lone Star Law certainly has a lot to say about culture and exceptionalism and hustlers and such, mostly through presentation of specific examples. However, neither the average lay reader nor the average lawyer is much interested in these conceptual questions. A simple sketch of the basic history of Texas law, and a straightforward explanation of how some of our strange doctrines and customs came into being, would be more than enough. Here, Ariens succeeds brilliantly.

Lone Star Law is a cross between a series of linked essays and an encyclopedia. It is easy to read and answers many “why did we do this?” questions about Texas law and legal practice. The explanations are not always complete, but the endnotes point interested readers toward more in-depth sources. Lone Star Law is a good quick-answer guide to a wide variety of questions, and a great starting point for in-depth research.

Lone Star Law is chock-full of fascinating information. For instance, take the chapter on criminal law. Many lawyers know Texas criminal pleading once was hyper-technical.

Lone Star Law gives specific examples of the fine distinctions drawn by the old Court of Appeals when considering misspelled words in jury verdicts. “Gilty,” “guily” and “guilly” were considered trivial misspellings, but “guity” was a fatal defect.

The book’s greatest failing, at least to this reader, is a natural consequence of deliberate decisions made by the author and editors.

Professor Ariens cut the original manuscript down by about one third before publication.

He announces up front that some interesting questions are covered only briefly, or not at all. He especially tries to avoid mythology, or “tall tales.” However, the book does what it does so well that a knowledgeable reader is frustrated by the gaps — by how much more interesting the book could be if it was longer.

Neither the author nor the Texas Tech University Press need fear that a longer book will frighten potential readers away.

Each chapter of Lone Star Law is broken up into a succession of vignettes or particular historical episodes. A client waiting in a law firm lobby, or a lawyer with a fifty-minute flight from Houston to Dallas, can read a section or two and feel they have learned something interesting. A few more sections here and there would be welcome. If Lone Star Law sells well, as it should, perhaps the author would consider an expanded second edition.

Professor James W. Paulsen teaches at the South Texas College of Law.

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Media Reviews

Daughters of the River Huong

By Uyen Nicole Duong AmazonEncore, 2011

M

Reviewed by Joy E. Sanders i mi mi mi. The word symbolizes a Vietnamese princess from the Hung era, a time of peace and harmony predating border wars and long periods of conflict in Vietnam. Simone Mi Uyen, the fourth generation “daughter” of the River Huong and modern voice of the novel, describes the sound mi as a pure, vibrating sound that is formed when the lips are gently opened upon a breath, the air brushing slightly outward, delivering the sound with the softness of a caress. Such is the voice of Daughters of the River Huong.

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Simone’s first generation counterpart, Huyen Phi, is an impoverished and orphaned paddle girl who describes 19th century life as she carries passengers across the River Huong, or “Perfume River.” Perhaps fortuitously or perhaps not, she is chosen to become a royal concubine of the then king.

Not unlike a body of water, the story unfolds coarsely shifting through time, subtly and delicately revealing the most intimate, at times scathing revelations, creating suspense and leaving the reader to weave together the chronology.

The novel is a fictional account of four generations of Vietnamese women with a historic context, interlacing history from Uyen Nicole Duong’s own past, and taking readers on a century-long journey examining Vietnam from the monarchy through French Colonialism, American intervention, the fall of Saigon and Communist rule.

Much of the value of the story is its portrayal of Vietnam as far distinguishable from what

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is evoked in the minds of many Americans – that is to say, what is typically covered in documentaries and history textbooks.

As beautiful as it is dark, Duong’s artistry speaks to the beauty and resilience of a people who have struggled with conflict and identity for generations. This inner-controversy is embedded in the human condition both naturally and by way of experience.

For the characters here, this struggle is twofold. Despite their clearly independent spirits, traditional, patriarchal notions tamper these women’s sovereignty. In some cases, these notions are taken up in a tragic way, as a means of survival. In others, they are aptly described as being imprisoned by one’s own heart. But in both cases, provocatively so, it engages the reader in an exploration and examination of one’s own notions. So climb aboard Huyen Phi’s paddle boat and allow Uyen Nicole Duong to take you on a journey down the River Huong.

About the author: At 16, Author Uyen Nicole Duong won the Republic of Vietnam’s National Honor Prize for Literature. She arrived in the U.S. as a political refugee at the age of 16, only five days before the fall of Saigon. She went on to receive a B.S. in Communication and Journalism from Southern Illinois University, a J.D. from the University of Houston and an LL.M. from Harvard. At age 24, she became the first Asian American woman appointed by the Houston Independent School District to an executive position and served while attending law school at night. For almost two decades, she practiced with a number of prestigious law firms, a multi-national corporation and the U.S. government. She was also the first Vietnamese American appointed as a judge in the U.S. Duong currently resides in Houston.

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to register

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Joy Sanders of Joy E. Sanders, Esq. practices immigration law and is a member of The Houston Lawyer editorial board. She tweets about law, sustainability and community at http://twitter.com/sandersjoy.

OFF THE RECORD

Planes, Boats and Automobiles:

Land, Sea and Air Claim Eric Lipper’s Free Time plane. He is a licensed pilot with over 20 years of experience and

By Farrah Martinez delights in loading the plane with his son Joe and various friends for n any given weekend you can find Eric Lipper flying a a dining experience in a different city or an adventurous sightseeing plane, sailing the sea, cruising around in his sports car, expedition. There is no limit to Eric’s means of transportation beor building woodwork. Since the age of 12, Lipper has cause he also owns a 47-foot sailboat named “Docket” that he enjoys had a knack with tools, and he recalls even then how sailing along the Gulf Coast. he would disassemble and reassemble anything and evEric is not all fun and no erything within his grasp. work.

On occasion, LipBefore a career in law, Eric per flies himself from courtworked as an RV and car mehouse to courthouse across chanic through his teenage the state and sometimes even years. It was not until Eric the country for various legal put one of his fingers through proceedings. A great benefit a saw blade that he decided of owning and operating his he needed a desk job. So, off own plane is that if Eric has to college he went. While he a hearing in Austin in the truly enjoyed repairing vemorning and a deposition hicles and restoring old Ford scheduled in Dallas later in mustangs, considering his fathe afternoon, he can fly himther and both of his grandfaself. That is pretty cool! thers were Houston lawyers, Not only is Eric adventurit was no surprise that he was ous, he is also generous and also drawn to the practice of a skilled and talented craftslaw. Nevertheless, Eric never imagined he would still be [Top] Eric and family members with the results of a fishing expedition on his man. For his latest project, practicing law after more than boat, “Docket.” [Bottom] Eric Lipper sometimes flies himself from courthouse to Eric built a portable wooden Torah arc that he and Rhonda, 23 years at the same firm— courthouse for legal proceedings. his wife of 18 years, donated to their local synagogue, Hirsch & Westheimer—but Congregation Emanu El. During special holiday serhe professes that the time has vices, when the synagogue must hold some of its flown by because he is passervices at remote venues to accommodate the mass sionate about his work and number of attendees, the arc is transported to that has fun doing his job. It also venue to house one of the synagogue’s Torahs. Eric helps that Eric has mastered delights in being able to use his craftsmanship to give the skill of recharging his enback to his temple. As lawyers, we can all take a page thusiasm for the law by relaxing and enjoying his time off through out of Eric’s book—enjoy life. one of his many hobbies.

Today Lipper still enjoys vehicles and is a member of the Ferrari Farrah Martinez is a member of Editorial Board.

Club of Houston. He owns a black Ferrari that he is constantly taking Martinez is Director of Legislative Affairs for the Harris apart and then using in various amateur warrior weekend challenges.

County District Clerk.

In addition to driving fast cars, Eric likes to fly high in his own air-

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LEGAL TRENDS

The U.S. Supreme Court Holds That Employment Discrimination Claims By 1.5 Million Women Cannot Proceed As One Class

I The Houston Lawyer

By Jill Yaziji n Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451 (June 20, 2011), the U.S. Supreme Court denied class status to approximately 1.5 million women, current and former Wal-Mart employees, alleging sex-based employment discrimination in all 3,400 Wal-Mart stores nationwide. In a 5-4 decision, the Supreme Court held the plaintiffs failed to demonstrate enough commonality among them to meet the threshold requirement of Federal Rule of Civil Procedure 23(a) (2) for class action.1 The plaintiffs in Wal-Mart did not contend that the company had an express policy of discrimination, nor companywide policies and practices that resulted in a disparate impact on women, such as a mandatory testing procedure. They claimed, rather, that sexual stereotypes

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and subjective criteria embedded in Wal-Mart’s corporate culture regularly determined pay and promotion decisions, resulting in a significant disparity between the number of men and women promoted to managerial positions. The “broad discretion” that Wal-Mart vested in its supervisors, plaintiffs complained, was practiced disproportionately in favor of men and had a disparate impact on female employees in the form of lower pay and fewer promotions. In the absence of a “common contention” of discrimination or a “single employment practice,” the validity of plaintiffs’ case rested entirely on the strength of evidence offered to prove Wal-Mart’s discriminatory culture. That evidence, the Court’s majority held, fell far short of what is required to glue together an expansive class action.

The evidence of Wal-Mart’s corporate culture of bias was statistical, anecdotal, and in the form of expert testimony. The Wal-Mart workplace, plaintiffs’ sociologist and only expert testified had a “strong corporate culture” that made it “vulnerable” to “gender bias.” The expert’s testimony was quickly disregarded by the Court after he admitted in deposition that he could not tell “whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” This was a crucial question in a case alleging that every woman employee suffered from gender stereotypes. “If [plaintiff’s expert] admittedly has no answer to that question” Justice Scalia wrote, “we can safely disregard what he has to say.”

The majority likewise questioned the statistical and anecdotal evidence offered by plaintiffs. Statistical evidence compared the number of women versus men promoted into managerial positions, concluding that “there are statistically significant disparities between men and women at Wal-Mart.” The data underlying this conclusion were regional, not store-bystore. Hence, the Court concluded that

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the statistical evidence did not prove a nationwide policy of discrimination in all 3,400 stores, because figures from a particular store or cluster of stores may have skewed the overall data.

The anecdotal evidence presented in plaintiffs’ affidavits was deemed equally insufficient. For instance, the Court noted that there were 120 affidavits filed on behalf of almost 1.5 million women, representing one anecdote of discrimination for every 12,500 class members. Indeed, the affidavits complained of only 234 stores of the 3,400 stores included in the litigation, leaving all the other stores without any evidence of discrimination in the eyes of the Court’s majority.

What doomed the Wal-Mart plaintiffs was the expansive breadth of the class contrasted with the narrow sampling of evidence presented. In a sentence that captured the majority’s sentiment vis-à-vis class actions of this size, Justice Scalia exclaimed that “in a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.”

Yet, the majority’s commonality test was seen by the dissent as too exacting in an otherwise threshold inquiry of Rule 23(a) (2). “[E]ven a single question of law or fact common to the members of the class will satisfy the communality requirement,” wrote Justice Ginsburg in her dissent. Plaintiffs’ evidence, she wrote, suggested that “gender bias suffused WalMart’s corporate culture,” where supervisors often referred to female associates as “little Janie Qs” or uttered statements such as “[m]en are here to make a career and women aren’t.” Discrimination can often be an unconscious practice, even in the absence of intentional decisions by each supervisor to discriminate.

Yet, Wal-Mart should not be read to spell the end of employment discrimination class action, even those based entirely on evidence of discretionary policies. Justice

LEGAL TRENDS

Scalia wrote the Court recognizes discretionary decisions can be the basis of Title VII claims. But there must be a “common contention” among class members, that discrimination, for instance, was practiced by the same manager, or that there was a single policy in place. “Without some glue holding the alleged reasons for all these employment decisions together,” there is no common answer to the “crucial question why was I disfavored.” (Emphasis in original.)

After Wal-Mart, plaintiffs have to sue in smaller, more defined classes, and offer rigorous statistical and anecdotal evidence down to the very specific employment location about which a Title VII claimant complains.

Jill Yaziji is the principal of Yaziji Law Firm, specializing in business litigation, and a member of the Editorial Board of The Houston Lawyer.

Endnote 1.

The less remarkable holding of Wal-Mart was the Court’s unanimous decision that Federal Rule 23(b)(2) should not be used for monetary damages (in this case “back pay”) claims. The Rule is adequate only when a “single injunction or declaratory judgment” provides relief to each class member. “Individualized monetary claims belong to Rule 23(b)(3),” with its procedural protections and opt out provisions.

Paid or Incurred, PostHaygood v.

Escabedo

by or on behalf of the claimant.”

As soon as Section 41.0105 became law, there was a vigorous grammatical debate over whether the adjective “actually” only modified “paid” or whether it modified both “paid” and “incurred.” The difference has significant implications.

Indeed, as a result of this ambiguity, pre-Haygood, many plaintiffs argued that they should be permitted to put on evidence of the full amount of all medical or health care expenses that had been incurred, regardless of whether they had been paid or adjusted in any way. Under that scenario, should the plaintiff prevail

By Robert W. Painter any necessary reduction of the awarded medical expenses would n a major 7-2 opinion, occur post-verdict. In Haygood v. Escabedo, “In a major 7-2 opinion, turn, many defendants 2011 WL 2601363 Haygood v. Escabedo, urged trial courts to (Tex., July 1, 2011), 2011 WL 2601363 exclude any evidence of the Texas Supreme (Tex., July 1, 2011), the medical or health care Court interpreted the Texas Supreme Court expenses that had not “paid or incurred” statute actually been paid. enacted in the tort reform interpreted the ‘paid The Haygood decision legislation of 2003. or incurred’ statute weighed in, settling At issue is the meaning enacted in the tort the linguistic issue by of Texas Civil Practice & reform legislation deciding that “actually” Remedies Code Section modifies both “paid” 41.0105, which states of 2003.” and ‘incurred.” Further, that, “recovery of medical the court held that only evidence of or health care expenses incurred is limited paid medical expenses and medical to the amount actually paid or incurred

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The Houston Lawyer

LEGAL TRENDS

expenses that have been incurred and are recoverable by the health care provider are admissible at trial.

“Recoverable medical expenses” are those that the health care provider has the right to collect. The court noted that the medical industry has a common practice where providers negotiate pricing with insurance companies, which results in the bills for insured patients being contractually adjusted downward.

The court rejected Haygood’s argument that these adjustments are covered by the collateral source rule, and instead determined that they are only for the benefit of the insurance company (not the patient/insured). In the majority opinion, the court said that to do otherwise would create a windfall for plaintiffs.

Haygood alternatively urged the court to allow the jury to consider evidence of non-recoverable economic damages (e.g., pre-adjusted medical bills) because they could be useful for the jury in deciding the amount of non-economic damages.

The court decided against that argument, ruling that any potential relevance of such evidence is outweighed by the confusion it would likely generate for the jury.

The impact of Haygood, in short, is that any evidence of pre-adjusted medical billing records is inadmissible. More broadly, if a health care provider does not have the legal right to collect a charge for health or medical services, then evidence of that charge is inadmissible.

Trial lawyers on both sides of the docket are wrestling with how Haygood will change day to day practice, including things as routine as affidavits to prove up reasonable and necessary medical expenses under Civil Practice & Remedies Code Section 18.001. In the meantime, the debate is still not over—a motion for rehearing has already been granted.

Robert W. Painter is a trial attorney with Painter Law Firm PLLC. He is an associate editor of The Houston Lawyer.

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Texas Passes Law Requiring Disclosure of Chemicals Used in Hydraulic Fracturing Fluid

I

By Barclay Nicholson n June of this year, Texas Governor Rick Perry signed a law requiring hydraulic fracturing operators to disclose the chemical constituents of fluids used in the fracturing process on a wellby-well basis. In doing so, Texas became the first state to have such a full disclosure law, although many other states have regulations regarding hydraulic fracturing. Many of these state regulations have differing provisions and require disclosure in slightly differing manners. The Texas law instructs the Railroad Commission, which regulates oil and gas production, to draft hydraulic fracturing disclosure regulations. The bill passed by a majority of 137-8 in the Texas House and 31-0 in the Texas Senate.

The law imposes different disclosure requirements for the total volume of water and the varying categories of chemicals used in the hydraulic fracturing process.

For fracturing chemicals that are subject to the Occupational Safety and Health Administration’s requirements for Material Safety Data Sheets (“MSDS”), the well operator must disclose those chemicals to the Railroad Commission and post a list of the chemicals on the website hosted by the Interstate Oil and Gas Commission, which is currently found at FracFocus.

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org. The Texas bill makes public this information about OSHA-regulated chemicals that, by law, was already available to well-operator employees. Service companies that perform hydraulic fracturing on a well or suppliers of additives used in hydraulic fracturing must provide the necessary chemical information to the well operator in order for the operator to comply with the disclosure requirements.

If a chemical is not required to be disclosed on an MSDS, but was nevertheless intentionally included in the fracturing fluid to assist with the fracturing process, the chemical also must be disclosed to the Railroad Commission and noted on FracFocus.org or another publicly accessible website. Chemical constituents that were not purposely added, but occur only incidentally or are otherwise unintentionally included in the fracturing fluid, are not required to be disclosed.

In an effort to protect trade secrets, the law does not mandate disclosure of the actual quantities of the chemicals used or the techniques utilized by well operators to implement the fracturing process. Rather, the bill only requires disclosure of specific chemical-identifying information, such as names and physical characteristics. The non-disclosure of trade secrets can be challenged by the landowner where the well is located, an adjacent landowner, or a state agency within two years of the filing of the relevant well completion report.

The law would only affect wells that receive drilling permits after the effective date of the Railroad Commission’s forthcoming regulations which will be at the earliest in 2012. Many companies in the industry supported this state law as a step in the right direction in being more transparent about the hydraulic fracturing process and reassuring the public regarding their drilling activities.

Barclay Nicholson is a partner at Fulbright & Jaworski L.L.P., where he focuses his practice on business disputes.

PLACEMENT POLICY

1. In order to place an ad, attorneys and law firms must complete a registration record.

Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.

2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner.

3. In order to promote the efficiency of the Houston Lawyer Placement Service. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin Street, Houston, Texas 77002 or e-mail Brooke Eshleman at BrookeE@hba.org.

Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.

PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue

May July Sept.

Nov.

1 1 1 1

May/June Issue July/August Issue Sept./Oct. Issue Nov./Dec. Issue

5084 Full time associate position available. 5+ years exIf you need information about the Lawyer Placement Service, please contact HBA, placement perience required. Must have coordinator, at the HBA office, 713-759-1133. commercial and personal inPositions Available jury background. Competitive 5076 Boutique Civil Litiga- compensation package. tion law firm specializing in complex business litigation is 5094 ESTATE PLANNING looking for an associate attor- – PROBATE ATTORNEY. ney with 1-3 years litigation SUGAR LAND. Board certiexperience and excellent re- fied attorney, 33 year Houston area practice serving Harris/ search and writing skills.

Fort Bend counties, seeking 5080 Houston public pen- associate attorney with adsion fund seeking Associate vanced estate planning and Counsel reporting to CLO. probate experience.

Approx. 4 yrs. experience Positions Wanted with pensions, employment, administrative, institutional investing or local government law.

Competitive benefit package. Background checks required.

2062 Very Experienced Trial Attorney intimately familiar with the mechanics and operation of the Commercial Mortgage Backed Securities (CMBS)

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industry, including the securitization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, Rating Agencies, Trustees, Servicers and Special Servicers.

Looking for in-house position.

If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office:

713-759-1133

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placement service

The Houston Bar Association Lawyer Placement Service will assist members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions.

LITIGATION MARKETPLACE

Document Examiner

Office Space

Office Space at 3 Riverway Class “A” Building located off Woodway Drive and 610 West Loop.

Law firm is primary tenant.

Several offices available. Onsite management and security guard, attached parking garage for tenants and visitors, conference rooms, receptionist services, kitchen, wired for broadband internet access. Contact Lisa DeWild, 713-209-2934 HOUSTON / MUSEUM DISTRICT Newly remodeled Historic Home, minutes from the Court House. On-site Management, receptionist, three conference rooms, kitchen, small library, telephone system, internet access, copier, fax and free parking. Several offices available.

Call 713-840-1840 Executive Office Space Available: Ranging from $850-$995 per month. Amenities include: 2 conference rooms; maid and reception services; full kitchen. Heights Boulevard address.

Broker/owner. 713-880-4700 Sublease beautiful office space 1402 sq ft—550 Westcott.

Call Leigh 713-224-6774

The Houston Lawyer

713.621.1180 ArturosUptown.com

For classifieds contact:

Mary Chavoustie

mary@quantumsur.com

281.955.2449 ext.13 48

September/October 2011

Former art gallery on Colquitt Street (near Richmond and Kirby) converted to law offices has two furnished offices (one partner size) and three furnished secretarial stations available. Numerous amenities, including conference rooms, full kitchen, use of copier and postage machine, and up to three lines and voice mail on existing phone system.

12 to 28 foot ceilings. Nonsmokers only. Call MaeLissa Lipman at 713-840-9600.

Galleria area office with great thehoustonlawyer.com

views ­­— two offices available for lease. Top floor of Chase Bank building at Richmond and Sage. Approximately 200 — 225 square feet. Well-appointed suite includes conference room, fax, copier, limited library, wet bar and free parking. Reception/secretary service available. $925.00 $975.00 per month. Dorena 713-961-5555.

HOUSTON - GREENWAY PLAZA AREA Window offices for sublease in fully furnished suite. Includes lobby area, two conference rooms, kitchen, private bathroom, phone system, internet access, copier, fax, scanner and free parking. $850.00 per month. Contact Stephanie 713-337-6449. sar@romanlawfirm.com

kitchens, internet, cable, phones with VM, all utilities, part-time receptionist. Window offices ranging from $400-$800 per month with no long-term commitment. Please call Mark Kidd at 713-968-4601 for information.

GREENWAY PLAZA One first floor office space available, 12X17. Tenant shares suite with 6 attorneys, standard amenities included. Please call Trina at 713-627-1133 Position Available Partner-level attorney needed to expand small Corporate/ Securities firm. Seeking partner to complement our practice. Send resume and cover letter to dloev@loevlaw.com.

Position Wanted Thirty-year business attorney looking to sublease one office in downtown Houston. Board Certified, Commercial Real Estate and Solicitor of England and Wales (Uncertificated).

Broad experience in restructuring of businesses and real estate projects outside of bankruptcy, including recapitalization and investor restructurings. Please contact Paul Duplechain at 713-228-4600.

Historic Former Mayor’s House on Heights Blvd.

New renovation! Historic charm with modern amenities. Total 7 offices plus support staff areas available. Includes 2 conference rooms with flat screens and data ports, maid service, full kitchen, parking, disabled access. Also available: reception, wired and wireless internet, data storage / Professional Services server, copier, phone and fax services. Price flexible on Tickets, DWI, Hit & Run, Susneeds. Call: 832-498-5698. pended License and Driver License Issues, including DPS Houston/Bellaire. Sublease one/ hearings. *Traffic Warrants two window offices in 6300 W. Removed. *Personal injury & Loop South w/3 attorneys — accidents. Eutsler Law Firm. easy access, free parking, conTel. 713-464-6461 ference room and Internet.

Call Alyssa 713-524-4110.

Robert Kahn, board certified immigration law, practicing Great office space at 1601 Wes- for 28 years. Specializing in theimer at Mandell, minutes removal, deportation, bond from downtown Houston. Rent hearings, VAWA, asylum and includes shared access to two adjustment. 713-961-9977 conference rooms, restrooms, www.robertekahn.net

About the Photographers

Nash Baker

Total One Stop Solutions

Full-service CPA firm providing tax, bookkeeping, payroll, review, audit, consulting, staffing • Need help with back taxes and tax planning strategies? • Need help with bankruptcy accounting and fresh-start reporting? • Need help with any QuickBooks setup/ training and CPA matters?

Affordable and reliable team that you and your clients can count on! Please contact us for free estimate and free consultation 832-323-1040 • 713-496-3348 contact@yoecpa.com • www.yoecpa.com 10301 Harwin Drive, Suite 1, Houston, TX 77036

SpendingTimeEndingRett.com reinvent your image...

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“The building has soul,” explains photographer Nash Baker when asked to describe the cultural, historic and artistic allure of the 1910 Harris County courthouse. Baker, of Nash Baker Photography, is a long-time Houston-based commercial photographer. Inspired as a child by the riveting images he saw in National Geographic magazine, he has gone on to pursue a 30-year career portraying people and their pursuits, as well as architecture, landscapes and the life of the city and its residents. Much of Baker’s work is commissioned by corporations and exhibited in marketing and editorial pieces, as well as private collections.

In 2009, Vaughn Construction began renovation of the 1910 Harris County courthouse. Vaughn commissioned artisans who could restore the style and character of the 1910 courthouse by using material and tools typical of that era and authentic to the original building. Vaughn also commissioned Baker to take documentary photographs of the renovations as they were being performed.

“For many people, the only way they will experience the Courthouse is through my photos. So my job is to convey not just an accurate architectural portrait, but the ‘soul’ of the building as well. The way the light falls at a particular time of day. The richness of the wood. The shadows. And so much more. It’s all part of experiencing the building,” explains Baker.

For the next two and half years, Baker studied restoration techniques, collaborated with contractors, and photographed in meticulous detail the restoration process. His work framed two major themes: (1) the building’s artistry—the plaster and stonework itself; and (2) the high level of craftsmanship employed by the contractors.

Baker’s photographs tell the story of the truth and spirit of the courthouse, detailing the historical, cultural and artistic essence of the early 1900s. The images are a tribute to the civic pride Houstonians past and present have invested in the courthouse and the efforts to return this magnificent structure to its 1910 condition.

For more of Baker’s photographs, visit: http://www.nashbaker.com.

Jim Olive

QuantumSUR, Inc. advertising / marketing company

281.955.2449 ext.11 quantumsur.com

sponsorships Available SpendingTimeEndingRett.com

Jim Olive is a native Houstonian whose work has been featured in publications and corporate boardrooms throughout the world. His interest in photography started early, and he began processing his own film as a boy. His love of photography never wavered. Olive previously worked for The Houston Post, and has been on assignment for various publications, media outlets, and corporations. He is the creator of Stockyard Photos, a stock and assignment photography company providing exceptional quality images in both digital and print media. While Olive may be best known for his Houston skyline and environmental photos, his experience and interests are long and varied.

He routinely takes photos for the Greater Houston Partnership, Greater Houston Convention & Visitors Bureau, Texas Medical Center, and various business and nonprofit interests. Olive has recently been on assignment to update the photo catalog of the Texas Medical Center and to photograph the Texas wildfires. In addition to being an award-winning photographer, he is an accomplished author.

Taking the cover photo of the renovated 1910 Courthouse, now home to the First and Fourteenth Courts of Appeals, presented some obstacles. First, Olive had to get to the roof of The Republic Building. Second, he had to battle the extreme summer heat. The first obstacle allowed him to catch up with his friend Dick DeGuerin, whose firm is on the top floor of The Republic Building. Olive and DeGuerin first met when Olive was on assignment many years ago for Life Magazine to cover a story of Percy Foreman. As for the heat, he had to grin and bear it.

To see more pictures of the Harris County Courthouse, please go to www. harriscountycourthousephotos.com. Jim has suggested to the Harris County Historical Commission that a calendar of the courthouse photos be published to raise money for the Commission’s ongoing efforts to preserve Houston’s history. To see more of Jim Olive’s work, visit www.stockyard.com. thehoustonlawyer.com

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