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Don’t miss special pricing & 2016 member benefits. See page 5 for details.



2015–16 BAR YEAR September 2015 Volume 24, Number 7 www.AustinBar.org

Features #AUSTINBARINACTION: Judge Kennedy.......... 1 Austin Bar Membership Offer............................ 5 Austin Bar 100 Club Membership........................7 Austin Bar Achievements By the Numbers.............8 Austin Bar Foundation & LGBT Bar Scholarship....10 Judge Byrne Receives National Award....................12 Gloria Leal Honored by State Hispanic Bar.........16 Gala Award Nominations/A-List Diversity Firms....17 AAABA’s Attorneys in the Arts...............................19 Travis County Courts Campaign Update..............20


Judge Brenda Kennedy Named Presiding Judge of Travis County Criminal Courts By Nancy Gray, Austin Bar Association

#AUSTINBARINACTION is a newly launched campaign

to highlight stories of Austin Bar members and how they are working in their circles of influence to effect positive change in the lives of others.

Departments President’s Column............................................ 4 Opening Statement.......................................... 11 3rd Court of Appeals Update........................... 14 Briefs............................................................... 23 AYLA............................................................... 24 Entre Nous....................................................... 28 Upcoming Events............................................ 30 Classifieds /Ad Index........................................ 31


he Honorable Brenda Kennedy became presiding judge of the Travis County Criminal Courts in January, 2015. Elected by her fellow criminal court judges for a four-year term, she carries the administrative and policy responsibilities on their behalf. Judge Elisabeth Earle, presiding judge of Travis County Court at Law No. 7, had this to say about Judge Kennedy: I have been extremely fortunate to have known and worked with Judge Kennedy for over 20 years. As an assistant county attorney in the mid 90s, I was assigned to her court as a young prosecutor and greatly benefited from her mentorship. In 2002, when she decided to seek the District Court bench, I was honored to follow in her footsteps, being elected judge of the County Court at

Law bench she was vacating. Judge Kennedy is not only an outstanding jurist, but a much-valued colleague and a dear friend. We are fortunate to benefit from Judge Kennedy’s legal expertise and her dedication to bettering the criminal justice system in Travis County. Following her graduation from continued on page 6

austin lawyer Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab. Austin Bar Association Judge Eric Shepperd.......... President Leslie Dippel.................... President-Elect Amy Welborn................... Secretary Adam Schramek............... Treasurer Judge Elisabeth Earle �������� Immediate Past President Austin Young Lawyers Association Chari Kelly....................... President Katie Fillmore................... President-Elect Jorge Padilla..................... Secretary Austin Kaplan................... Treasurer Amanda Arriaga............... Immediate Past President Austin Lawyer ©2015 Austin Bar Association; Austin Young Lawyers Association Executive Offices 816 Congress, Suite 700 Austin, Texas 78701-2665 E-mail: austinbar@austinbar.org Website: www.AustinBar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward.................. Executive Director Nancy Gray...................... Managing Editor Debbie Kelly.................... Director of AYLA Kennon Wooten............... Editor-in-Chief Britni Rachal..................... Editorial Assistant Published by Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 www.monarchmediainc.com Advertising inquiries call 512.293.9277.

September 2015 Austin Lawyer


President’s Column Judge Eric Shepperd, County Court of Law #2

Powerful Beyond Measure Kicking off the #AUSTINBARINACTION Campaign


hakespeare was right. In Henry VI, Part 2, act IV, scene II, one of Shakespeare’s characters uttered the following infamous line: “[F]irst thing we do, let’s kill all the lawyers.” As with most quotes taken out of context, this line has been hijacked to mean something completely different than what Shakespeare intended. It’s been used by lawyer-bashers since 1591 to express disdain for our profession. But this Shakespearean line, “kill all the lawyers,” in context, is right! Lawyers are critical to our society’s well-being. We are critically important to making our American society work. Let’s take a look, as Paul Harvey used to say, at “the rest of the story.” The character who uttered the line is named Dick the Butcher. He is a minor character in Henry VI, Part 2 — a henchman in Jack Cade’s rebellion against the king. The scoundrels were plotting about how to ensure the success of the rebellion when Dick uttered the famous line. How true it was! He realized that to fully overthrow the government, they would have to rid themselves of those who knew and enforced the rule of law. The first line of attack should naturally be to get rid of the legal process, individual rights, and due process. In order to do this, they must eliminate those who knew enough to stand up and defend the rights the rebellion was seeking to take away. Retired Supreme Court Justice John Paul Stevens once offered his own opinion on the subject, writing in a footnote to a dissenting opinion from a 1985 case, “As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” Listen, people have been trying to tear down our profession for years. And to some degree, we’ve done it to ourselves by believing what they’ve said, by pricing ourselves out of a market, or by just not being available. Lawyers are not irrelevant — in fact, in today’s world we are more relevant than ever. And while you don’t have to believe me, surely you will believe Barbara Jordan. In 1992, Beverly Reeves and I worked with Eva Ramos to produce a set of outreach videos for Austin Young Lawyers Association encouraging minority and women students to pursue law as a profession. The collection of interviews, with an introduction by then-Governor Ann Richards, featured an interview with the indomitable Barbara Jordan, who had this to say about lawyers: Lawyers are people who help you to navigate life. Lawyers have the kind of breadth of experience and training which helps you to avoid pitfalls, avoid problems — to reach solutions, and attain the kind of equanimity, the kind of equality, the kind of commonality and caring that exists between individuals. THAT is what I’m talking about. That is what I want us to remember this year, during my tenure as president of the Austin Bar. Another of my favorite quotes is by Marianne Williamson:  Our deepest fear is not that we are inadequate. Our deepest fear is that we are powerful beyond measure. It’s time for us, as members of the legal community and 4

Austin Lawyer September 2015

the Austin Bar, to step up to the plate and claim that power. Let’s not shrink and hide behind the public’s negative perception of us. Let’s shine a light on all the good things we are already doing and plan to do in the future — things like free veterans clinics, free legal clinics for flood victims, Adoption Day, Women’s Resource Fair, Volunteer Legal Services, People’s Law School, scholarships, grants and much more. But more importantly, let’s make sure the public knows what legal resources we offer and how we can help them navigate their lives. Most of them don’t need a lot of help. But the small things we can do for them, like helping to get an occupational driver’s license, offering some advice at a veteran’s clinic, or filing adoption papers, could make a huge difference in their lives.

Let’s shine a light on all the good things we are already doing and plan to do in the future. During the coming year, I will use this column to spotlight organizations and people who are working to increase the availability of legal services to those who need them most. The President’s Column will become the President’s Spotlight, through which I hope to help shed some light on the good the legal community is doing in Austin. I also want to know how YOU are helping people navigate life in your role as an attorney. How are you, or someone you know, effecting positive change in the lives of others? The #austinbarinaction campaign has been developed as a way to share your stories with the community. Tell us a story about someone you encountered at a legal clinic, doing pro bono work, through Adoption Day, or at the Women’s Resource Fair. How did receiving legal help impact their life? Tell us a story, big or small, that has already happened to you or someone you know, and keep us posted when a new story occurs throughout the year. Email your stories and pictures to Nancy Gray at nancy@austinbar.org, put them on Facebook, or tweet them at @theaustinbar using the hashtag #austinbarinaction. If you are not already an Austin Bar member, I invite you to join us. Join now for 2016 and get the rest of 2015 for free — plus lots of great member benefits. See more information about becoming a member in this issue, or at austinbar.org. Together, we can make a difference. • AL

Join the Austin Bar Association Now for 2016 and Receive the Rest of 2015 for Free Austin Bar Membership: A Circle of Professionals Serving The Community


he Austin Bar is kicking off the 2015-2016 Bar year by sending this issue of the award-winning Austin Lawyer to all attorneys in the Austin area. If you aren’t already a member, now is the perfect time to join. In addition to receiving ten issues of Austin Lawyer each year, other member benefits include: ƒƒ Free and discounted CLE opportunities, including a monthly 4th Friday Free CLE with lunch included;

Community Service

Networking & Social Events

ƒƒ Member discounts on a variety of services; ƒƒ Subscription to Bar Code, a weekly e-newsletter; ƒƒ Participation in annual judicial polls; ƒƒ Access to substantive law section membership; ƒƒ Travis County Resources Guide (Bench Book); ƒƒ Community service opportunities;


100 Club Membership


Free & Discounted CLE


Access to Law Sections Judicial Polls & Travis County Resources Guide

ƒƒ Networking opportunities through committee participation and social events; and ƒƒ 100 Club Membership, for firms with five or more attorneys with 100 percent participation.

Bar Code & Austin Lawyer Subscriptions

Visit austinbar.org for more information about membership benefits and to join online. Questions? Contact Membership Director, Carol Tobias, at 512.472.0279, x106 or Carol@austinbar.org. • AL

September 2015 Austin Lawyer


#AUSTINBARINACTION: Judge Kennedy Sees the Big Picture continued from cover

the University of Texas School of Law in 1981, Judge Kennedy became Assistant Attorney for the City of Austin, and in 1982, Assistant District Attorney in Travis County. When asked whether she knew as a young lawyer where her career path would lead, Judge Kennedy replied, “I had no idea I would be a judge. When I went to work at the DA’s office I had a knack and a desire for trial work. I got to try a lot of cases and do a lot of things. And I enjoyed that. But once you try just about everything there is to try, you start looking for what’s next. I was having a discussion with my boss at the time, former District Attorney Ronnie Earle, about what my next career move should be. He was the one who encouraged me to be a judge.” Earle told her the time was right — there had never been a minority judge elected in Travis County before. Still, she was hesitant. He wanted her to do it to show people that it could be done. He told her she wouldn’t have to stay, but she needed to run. She did. And she stayed. She became presiding judge of Travis County Court at Law No. 7 in 1987. In 1988, she retained her position and became the first African-American to be elected in a contested countywide race. In 2002, Judge Kennedy was elected to her current position as judge of the 403rd District Court. In addition, Judge Kennedy presides over the caseload of the Travis County Adult Drug Diversion Court and the Youthful Offender Program for felony offenders aged 17 to 21. Her passion clearly lies in these specialty dockets. “In my regular everyday docket, I don’t get to see the results of what happens to people. I see a lot of people going to prison, but I don’t see the positive things. With the other programs, I can actually watch people change. Even their appearances change right before my eyes,” she said. The Youthful Offender Program, which began about four years ago, is her pet project. “We are trying to avoid incarceration at all costs for these kids,” Judge Kennedy said. “We can only handle about 30 at one time so I can meet with each one biweekly. We pick the worst of the worst — people with no family and no real support. We look at their pre-sentencing reports and see that they want probation, but we know they are never going to make it. But maybe if I spoon-feed them, if I mother them, they will.” Any young felony offender except the most violent may be considered for the program. Those selected

come in on a three-month trial basis to see if they are willing to engage. Some aren’t. But those who are willing often find, for the first time in their lives, a structure and a system that cares for them and an authority figure in Judge Kennedy that supports and encourages them. It can change their lives. Incentives such as gift cards or certificates are provided to the young participants when they achieve certain goals or accomplishments in the program. “I gave one guy a certificate for getting a driver’s license and he literally started crying,” she remarked. “He said he had never, ever, gotten a certificate for anything in his life. Nobody had ever said he did anything good before. He was so overwhelmed with the attention and by being rewarded for something. He had been in and out of the juvenile system, was probably headed to the pen, but he responded well. That’s what makes it worth it. I can’t quantitate it. If you lose 200 a year but you save four or five, is it worth it? I think it is. It matters to the people you help and to their families.” The success of the program is still being studied, but so far, there has been no recidivism. Even in her spare time, Judge Kennedy devotes herself to making a difference in the lives of young people. In addition to her involvement with numerous other civic groups, she is the current president of the Austin Chapter of The Links, Incorporated and past regional director of Jack and Jill of America, Incorporated. When asked why she thinks it’s important for attorneys to be involved in the community, she responded, “Attorneys need another outlet besides this environment. You can get caught up in it and become negative and cynical. Is this reality? Yes. But you need to see another side of things. We often see the worst of the worst on a magnitude that others don’t. But when you involve yourselves in charitable endeavors, or in situations where you see people who start out at a disadvantage, you see more fully how things happen — how people start out in that and then end up here. If you just live on your side of town and never interact on the other side of town, you don’t know what’s going on. You don’t know what their beliefs are or how they feel. You’re out of touch. I think to understand, you really have to be involved to get the bigger picture.” After more than 28 years on the bench, Judge Kennedy clearly gets the bigger picture. And the Travis County Criminal Courts are better off because of it. #austinbarinaction • AL




Austin Lawyer September 2015

Join Austin Bar’s 100 Club for the 2015-16 Bar Year 10 0

512.472.0279, x106 to find out how to join the 100 Club. Special thanks to the following Austin law firms for supporting the programs and practices of the Austin Bar with 100 percent participation. • AL

C lub M em


Thank You to the Following Austin Bar 100 Club Members:

-2 ea 015 Bar Y

FIRMS Alexander Dubose Jefferson Townsend

Eichelbaum Wardell Hansen Powell & Mehl

Metcalfe Wolff Stuart & Williams

Taylor Dunham & Rodriguez

Enoch Kever

Minton, Burton, Bassett & Collins

The Hay Legal Group

Allensworth & Porter

Fleckman & McGlynn

Munsch Hardt Kopf & Harr

Thompson & Knight

Almanza, Blackburn and Dickie

Ford Nassen & Baldwin

Naman Howell Smith & Lee

Thompson Salinas Rickers & McDermott

Andrews Kurth

Friday Milner Lambert Turner

Ausley, Algert, Robertson & Flores

George Brothers Kincaid & Horton

Baker Botts

Giordani Swanger Ripp & Phillips

Barnes Lipscomb Stewart & Ott

Gjerset & Lorenz

Barnett & Garcia

Graves, Dougherty, Hearon & Moody

Blazier, Christensen, Bigelow & Virr

Hanna & Plaut

Noelke Maples St. Leger Bryant Norton Rose Fulbright Ogletree, Deakins, Nash, Smoak & Stewart Osborne, Helman, Knebel & Deleery Paine, Tarwater, and Bickers Parsley Coffin Renner

Waller Lansden Dortch & Davis Weisbart Springer Hayes Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham Winstead Womack McClish Wall Foster Brooks Wright & Greenhill

Booth, Ahrens & Werkenthin

Hawkins Parnell Thackston & Young Piper Burnett Turner Bollier Miller

Boulette Golden & Marin

Haynes and Boone

Pirkey Barber

Zinda & Davis

Bracewell & Giuliani

Hilgers & Langham

Ratliff Law Firm


Howry, Breen & Herman

Reed, Claymon, Meeker & Hargett

GOVERNMENT AGENCIES City Of Austin Law Department

Brink Bennett Flaherty

Hunton & Williams

Reeves & Brightwell

County Court at Law Judges

Buchanan Dimasi Dancy & Grabouski

Husch Blackwell

Reid Collins & Tsai

District Court Judges

Ikard Golden Jones

Richards Rodriguez & Skeith

Office of the Attorney General

Ikard Wynne

Ryan Law

Supreme Court of Texas

Kelly Hart & Hallman

Scott, Douglass & McConnico

Kemp Smith

Shannon, Gracey, Ratliff & Miller

Texas Comptroller of Public Accounts

Lippincott Phelan Veidt

Shaw Cowart

Coldwell | Bowes

Lloyd Gosselink Rochelle & Townsend

Slack & Davis

Constangy, Brooks & Smith

Locke Lord

Cornell Smith Mierl & Brutocao

Streusand, Landon & Ozburn

Davis & Wright

Martens, Todd, Leonard, Taylor & Ahlrich

De Leon & Washburn

McLean & Howard

Burns Anderson Jury & Brenner Byrd Davis Furman & Alden Cain & Skarnulis Cantilo & Bennett Chamberlain ◆ McHaney

Spivey & Grigg Sutherland Asbill & Brennan Taube, Summers, Harrison, Taylor, Meinzer, Brown




is featured on the membership page of the Austin Bar website. Promote active participation in Austin’s legal community by having all the attorneys in your firm join the Austin Bar. Contact Carol Tobias at

r be


he 100 Club is comprised of firms with five or more attorneys with 100 percent participation in the Austin Bar Association. The 100 Club list is published annually in Austin Lawyer and

Texas Department of Motor Vehicles Texas Rio Grande Legal Aid Third Court of Appeals Travis County Attorney’s Office Travis County District Attorney’s Office

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September 2015 Austin Lawyer


The 2014-15 Bar Year By the Numbers Austin Bar Members Work Together to Achieve Service and Professional Development Success 215 attorneys and judges attended the annual Law Day Luncheon, where the Austin Bar Foundation awarded $16,000 in grants for law-related community projects. 51 essays and more than 12 posters were submitted to the annual Law Day competition for high school and elementary students.

Through the Diversity Fellowship program, 5 minority students were paired with local courts and law firms, while receiving $5,000 stipends from charitable donations.

The Leadership Academy accepted 30 new members. 24 younger attorneys were paired with mentors. The newly launched website attracted an estimated 12,690 viewers, while winning an American Web Design Award from Graphic Design USA.

The Austin Lawyers Assistance Program assisted 5 attorneys with counseling and medical treatment through the Justice Mack Kidd Fund.

Bar Code was sent out 48 times and had more than


2,329 attorneys attended Austin Bar CLEs, earning 283 hours of CLE credit, including 42.25 hours of ethics credit. 201 CLE programs were held, with a total of 8,886 hours of CLE attendance recorded. 230 people attended AYLA’s

44 children were welcomed home to forever families on Austin Adoption Day. Central Texas Adoption Day led to the adoptions of 47 children.

Austin Bar Foundation Gala raised $80,000 and had more than 600 attendees.

Bar & Grill. The annual Bench Bar Conference attracted more than 200 attorneys and judges with 6.75 hours of CLE and more than 12 speakers and breakout sessions.

views. Austin Lawyer was mailed 10 times with a circulation of more than 4,000 people.

At least 20 fee disputes were mediated through the Austin Bar’s Fee Dispute Resolution program.

423 Austin Bar members participated in the Judicial Evaluation poll. More than 296 veterans received legal assistance at our free Veterans Legal Advice clinics. For the first time, student membership was offered in the Austin Bar Association, resulting in 69 student members engaged in Bar activities.

125 people attend the first ever Runway for Justice Fashion Show, raising $6,000 for the AYLA. More than 740 people “liked” the Austin Bar on Facebook and more than 706 followed the Austin Bar on Twitter.


Austin Lawyer September 2015

AYLA’s Women’s Resource Fair provided services to 250 lowincome and homeless women, along with 125 children.

Adam Loewy Personal Injury & Wrongful Death Attorney

Austin Bar Foundation & LGBT Bar To Start Scholarship


he Austin Bar Foundation will administer a scholarship program for lesbian, gay, bisexual, and transgender Texas law students and allies. The Austin LGBT Bar Association, which proposed the program to the Foundation, will fundraise for the scholarship at its first annual awards gala to be held later this month. The scholarship will defray tuition costs for qualified students enrolled at law schools in Texas. Applicants must have demonstrated a commitment or contribution to the LGBT community or LGBT legal issues. Examples of such activities may include working with a nonprofit organization on LGBT issues, mentoring LGBT youth, or publishing articles on LGBT issues. The selection committee will also consider financial need.

The Foundation and Association hope to annually award two $5,000 scholarships... The Foundation and Association hope to annually award two $5,000 scholarships beginning in the 2016-17 academic year, and begin fundraising toward an endowed scholarship. Before the next school year, the two organizations will develop a scholarship application that will be advertised to Texas law school financial aid offices and available on the groups’ websites. Applications will most likely be due sometime in late spring 2016. The Foundation will receive submitted applications and will award funds to applicants selected by a committee comprised of Foundation and LGBT Bar Association members. The LGBT Bar Association is in charge of fundraising for the

Eric Galton


Austin Lawyer September 2015

David Moore

scholarship program and will hold the 2015 Scholarship Gala, “Sculpting the Future,” on Thursday, September 24, 2015 from 7 to 10 p.m. at the Umlauf Sculpture Garden. The event will honor Chuck Herring and Jodi Scheske, two Austin attorneys who molded current LGBT law in 2015. Herring represented the first same-sex couple to legally marry in Texas — even before the U.S. Supreme Court decision in Obergefell v. Hodges, which found that same-sex couples could not be denied the right to marry under the Constitution. Also pre-Obergefell, Scheske succeeded in securing Texas’ first same-sex divorce by convincing the Texas Supreme Court that it should reject the state’s attempt to intervene in the case. “Sculpting the Future” will also include complimentary drinks, tapas, live music, a silent auction of several bronze sculptures, and the opportunity to tour the beautiful grounds of the Umlauf Sculpture Garden. Tickets are limited and may be purchased for $50 (plus service fee) via the Association’s website, austinlgbtbar.org. Sponsorship opportunities are available for the gala. Tax-deductible donations earmarked for the scholarship may be made to the Austin Bar Foundation. For more information about the scholarship, contact LGBT Bar Association treasurer Daniel Collins at 915.588.0360 or dcollins.dc@gmail.com. • AL

Ben Cunningham

Greg Bourgeois

Fred Hawkins

opening statement Three Lessons from Herman Melville By Wayne Schiess, Texas Law, Legalwriting.net


n this column I’ll review three important legal-writing tips, and I’ll do it by picking on Herman Melville and his novel Moby Dick. Granted, Moby Dick is adored and praised; it’s near the top of every list of the greatest American novels, and Melville is a celebrated writer. But I’ve come to think legal writers could learn — or be reminded of — some good advice for effective writing by way of contrast to Melville’s style. So I’m offering this bold suggestion for legal writers: Don’t write like Melville.

Melville heavily and repetitively used adverbs.

Hardly a sentence goes by in Moby Dick without an adverb or two — or three. A few examples: deftly travel, considerably diminish, vigorously stirred, viciously snapped, mockingly embellished, and promiscuously said. My favorite: a broiled fowl that was judiciously buttered and judgmatically salted. For legal writers, it’s a good tip to avoid overusing adverbs: “If adverbs like clearly, plainly, and obviously appear throughout your document, you can probably save space by removing them,” according to Rachel Smith in The Legal Writing Survival Guide. Why? One answer is found in Legal Writing: Getting it Right and Getting it Written, by Professors Mary Ray and Jill Ramsfield, who explain that “too many adverbs can bog down a sentence while adding a minimum of information.” What’s more, Bryan Garner adds, “adverbs often weaken verbs.” In The Elements of Legal Style, he comments, “It has become an ironic joke among lawyers that when an opponent — or for that matter, frequently, a judge — uses one of these words (obviously, certainly, clearly), the statement that follows is likely to be false, unreasonable, or fraught with doubt.” So adverbs aren’t banned — just limited, because the adverb we hope will add force often has the opposite effect.

Melville used excessive, superfluous, and unwarranted adjectives.

Melville loved adjectives, too: wide expanse, wondrous voracity, incredible ferocity, outlandish strangers, and superstitious amazement. He sometimes doubled up, next ensuing season, or tripled up: insulated, immemorial, unalterable countries. His favorite was marvelous, which appears in Moby Dick 17 times. No, adjectives aren’t banned — the law relies on them: reasonable person, material change, good-faith effort. But legal writers shouldn’t overuse adjectives, either. In Plain English for Lawyers, Richard Wydick says your writing “will be more potent if you use strong nouns and verbs, not weak nouns and verbs held afloat by adjectives and adverbs.” Rachel Smith agrees: “Dramatic adjectives (like baseless, meritless, and outrageous) stand out to the reader and often seem out of place. Deleting most of them will save you space.” Ray and Ramsfield offer this

excellent tip: “If you find yourself writing several adjectives to modify one noun, stop and find the noun that more precisely states your meaning.” So foul smell becomes stench, difficult choice becomes dilemma, and big, fancy house becomes mansion. What’s more, the unadorned noun might be stronger than an adjective plus the noun. Do you prefer blatant attempt or attempt? Complete misrepresentation or misrepresentation? A bald-faced lie or a lie? It’s your call, but mind your adjectives.

“Multiple negatives require mental gymnastics, and are to be avoided at all cost.” – CHERYL STEPHENS, AUTHOR OF PLAIN LANGUAGE LEGAL WRITING

Melville was not unacquainted with double negatives. I want to tread lightly because Melville is highly esteemed, but after dozens of phrases like not unknown, no small excitement, forbade not, not a few, and not unshunned, Melville’s not uncustomary use of double negatives was not unnoticed and not un-despised. So avoid them. Cheryl Stephens, author of Plain Language Legal Writing, is no fan: “Multiple negatives require mental gymnastics, and are to be avoided at all cost.” In Mightier than the Sword, C. Edward Good likewise notes the problems double negatives create for readers: “[I]n legal writing, avoid the multiple negative. You’ll twist your sentences (and your reader’s brain) all out of shape.” And Garner, too, in his Dictionary of Legal Usage, discourages their use: “To say, for example, that a point of law is not uninteresting or not unintelligible is to engage in a time-wasting rhetorical flourish.” So remember: You’re not Melville, and you’re not ambitiously and tirelessly writing a momentous, expressive novel. It’s not unlikely you’re writing a legal document for a busy reader. • AL September 2015 Austin Lawyer


Judge Byrne Receives National “Judge of the Year” Award


udge Darlene Byrne has a lot to smile about these days. The Austin-based judge of the 126th Judicial District Court in Travis County recently received national recognition as “Judge of the Year.” The 2015 National Court Appointed Special Advocates, or CASA, recognized Byrne through its annual Awards of Excellence. “Being named Judge of the Year by National CASA has been one of the most unexpected and awesome honors I have received,” said Byrne. “To be honored by some of my favorite heroes, volunteer CASAs who speak out for children who have been abused and neglected, makes the honor all the more sweet.” Judge Byrne is known as a child advocacy leader at a local, state, and national level. She has presided over courtrooms dealing with families and dependency for more than eight years. She is also a regular on the Austin Bar’s Austin Adoption Day Core Committee. “Judge Byrne is a true believer in the CASA model,” said Laura D. Wolf, Executive Director of CASA Travis County, Inc. “She often writes editorials and meets with community groups to increase understanding of what children and families need.

Above: Judge Darlene Byrne is sworn in as president of the National Council of Juvenile and Family Court Judges.

Under Byrne’s leadership, the Travis County child protection courts were named a model court in 2009 — partly because of a collaboration between local, statewide, and national programs.

Top: The Honorable Ernestine Gray with the Honorable Darlene Byrne Above: (from left) CASA’s Director of Family Engagement, AJ Reynold; Executive Director, Laura Wolf; the Honorable Darlene Byrne; and CASA Board Member Jessica Blacklock. 12

Austin Lawyer September 2015

By consistently leading from the bench to benefit children, she is well-deserving of this recognition.” Under Byrne’s leadership, the Travis County child protection courts were named model courts in 2009 — partly because of a collaboration between local, statewide, and national programs. “I am so thankful that my fellow judges recognize the importance of this ‘off the bench’ work in order to be effective for families while on the bench,” said Byrne. “With the vision of my fellow judges and the support of the Supreme Court Children’s Commission, NCJFCJ and our County Commissioner’s Court, I am confident that the fabulous work we have started will continue forward in a manner that is just ‘how we do business here in Austin for children and families.’” Byrne has been an Austin Bar member for decades, and can often be seen around the Austin Bar office or at events, always with a friendly, warm smile on her face. She is also the new president for the National Council for Juvenile and Family Court Judges. • AL

Judge Darlene Byrne Sworn in as President of NCJFCJ CONGRATULATIONS to Judge Darlene Byrne for being sworn in as president of the National Council of Juvenile and Family Court Judges. The 78th annual conference, Rethink, Reimagine and Redefine Justice for Children and Families was held in Austin on July 26–29, 2015. Byrne received honors while being inducted into her new role at the inaugural “Justice Innovation Celebration” on Tuesday, July 28 at the JW Marriott. Through the conference, Austin hosted more than 450 judges and legal professionals from across the country. The Austin Bar and NCJFCJ thank the following sponsors:

COUNTRY LINE DANCE INSTRUCTORS SPONSOR: Upbring Adoption REIMAGINE SPONSORS: Buddy and Gina Schroeder Casey Family Programs Verizon REDEFINE SPONSORS: Austin Bar Association Austin Bar Association Family Law Section Austin Mayor Steve Adler & First Lady Diane Land Bank of the West – Reno Peter Barlin Barrett, Coble, & Andrae CASA of Travis County, Board of Directors

Durbin Bennett Private Wealth Management Emily & Danny Walker Family Law Section – State Bar of Texas Friday Milner Lambert Turner Fritz, Byrne, Head & Fitzpatrick & Judge Darlene Byrne Judge Sheri C. Roberts Judge Peter Sakai Juvenile Court Judges of Georgia The Law Office of Becky Beaver The Ohio Team – Captains Capizzi, Stucki, & Cubbon Richards Rodriguez & Skeith Rivers McNamara Thompson & Knight Travis County Judiciary Weisbart Springer Hayes

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3rd court of appeals    update


he following are summaries of selected Third Court of Appeals’ civil opinions issued during June and July 2015. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of August 4, 2015. Discovery: Court reverses class certification order in real property dispute. Canyon Lake Island Prop. Owners Assoc. v. Sterling, No. 03-14-00208-CV (Tex. App.—Austin June 5, 2015, no pet. h.) (mem. op.). Landowners used a portion of a neighborhood waterfront lot for lake access. Sterling purchased the lot subject to the property owners’ ease-

ment. Landowners later sued Sterling, contending he obstructed use of the easement. On Sterling’s request, the trial court certified a class and named three unwilling class representatives. The court of appeals held that the trial court failed to conduct the rigorous analysis required by Rule 42. Sterling only offered evidence of the cost to serve 300 owners and failed to show how it would be impracticable to join all parties. Sterling failed to show how unwilling individuals named as class representatives could represent the class without conflicts. The court reversed and remanded. Real property: Court affirms judgment in favor of realtors over square footage dispute.

Lawson v. Keene, No. 03-1300498-CV (Tex. App.—Austin July 1, 2015, no pet. h.) (mem. op.). After purchasing Keene’s home, Lawson discovered a discrepancy between the actual square footage and the listed square footage. Lawson sued Keene and both realtors involved for DTPA violations for misrepresenting the square footage on MLS. The trial court granted summary judgment for defendants. The court of appeals concluded that Lawson failed to produce evidence that any of the defendants had an affirmative duty to disclose the discrepancy between the appraisal district’s and the MLS listing’s square footage. The court also concluded that the TREC form contract attorney’s fees provision applies to more than breach of contract claims.

The court affirmed. Administrative law: Cities failed to establish party status for SOAH proceeding. TCEQ v. City of Aledo, No. 03-13-00113-CV (Tex. App.—Austin July 8, 2015, no pet. h.) (mem. op.). Cities appeared at a preliminary SOAH hearing, seeking party status in a contested-case proceeding involving a permit to construct a waste transfer station. The ALJ denied Cities’ request. Commission granted the permit. Cities challenged Commission’s order and denial of party status. The trial court reversed. According to the court of appeals, an “affected person” under the Water Code is one with a personal justiciable interest related to a right affected by an administrative hearing. It

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Austin Lawyer September 2015

requires more than an interest common to the general public. Cities’ general statements about the site’s location and general health and safety issues failed to demonstrate any legally protected interest beyond those common to the public in general. The court reversed and rendered. Pre-suit discovery: Rule 202 deposition not allowed to investigate possible health care liability claim. In re Seton Nw. Hosp., No. 03-1500269-CV (Tex. App.—Austin July 10, 2015, orig. proceeding) (mem. op.). After observing a hospital housekeeper expose himself, patient sought pre-suit discovery under Rule 202 to investigate a potential claim against hospital. The trial court granted the discovery. The court of appeals observed that CPRC §74.351(s) stays discovery until the claimant serves an expert report. Patient contended her claim was based on safety standards unrelated to providing health care. The court concluded patient’s claim was a health care liability claim. Hospital’s failure to implement policies to protect patients is directly related to providing health care. The court granted mandamus relief. Health care liability: Artful pleading does not alter nature of underlying claim. Access Orthodontics of E. 7th St., P.A. v. Jaimes, No. 03-1500081-CV (Tex. App.—Austin July 23, 2015, no pet. h.) (mem. op.). Jaimes paid for orthodontic services from Access. After wearing the braces for the prescribed time, Access refused to remove the braces. Jaimes paid another

dentist to remove the braces and sued under DTPA for the additional cost, attorney’s fees, and mental anguish damages. Jaimes did not file an expert report, contending her claim was not a health care liability claim. The trial court denied Access’s motion to dismiss. The court of appeals noted that claims against a health care provider during a patient’s treatment are presumed to be health care liability claims. The court characterized Jaimes’ claim as one for lack of treatment and thus, a health care liability claim. The court reversed, remanded for determination of attorney’s fees, and dismissed. Statute of limitations: Actual knowledge started limitations period. Alvarado v. The Abijah Group, Inc., No. 03-13-00060-CV (Tex. App.—Austin July 29, 2015, no pet. h.) (mem. op.). Relying on an erroneous survey, Alvarado purchased land in 2006. The next year, the error was discovered and disclosed to Alvarado. Surveyor attempted to remediate the problem with Alvarado’s neighbor. Alvarado sued surveyor for negligence and DTPA violations in 2012. Alvarado contended limitations were tolled until he discovered surveyor’s remediation efforts had failed when he attempted to sell the property in 2010. The trial court granted summary judgment for surveyor on limitations. The court of appeals concluded that neither the discovery rule nor fraudulent concealment applied to claims that could have been discovered during the limitations period through reasonable diligence.

Alvarado had actual knowledge of the survey errors more than four years before filing suit. Further, assurances of remediation only toll limitations under the DTPA for 180 days. The court affirmed. Administrative law: County not immune from suit for breach of settlement. Travis County v. Rogers, No. 03-14-00186-CV (Tex. App.—Austin July 29, 2015, no pet. h.) (mem. op.). After investigating Roger’s reports of infractions by fellow sheriff’s office employees, Rogers was terminated. Rogers presented his Whistleblower claim to the commissioner’s court. The county settled with Rogers, permitting him to continue County employment. Rogers later sued for violations of the settlement agreement. The trial court denied County’s plea to the jurisdiction. The court of appeals noted that the issue was whether Roger’s Whistleblower claim had “adjudicative value” when the parties entered the settlement agreement. According to the court, Roger was not required to have filed his Whistleblower lawsuit for there to be waiver of immunity. When the parties signed the settlement agreement, Roger’s deadline to file his Whistleblower suit had not passed. Thus, County was not immune from Roger’s suit for breach of the settlement agreement. The court affirmed. The concurrence concluded that under Lawson, immunity would not bar Roger’s lawsuit. Real property: Attorney’s fees cannot be awarded against homestead sale proceeds. Garcia v. Baumgarten,

Laurie Ratliff is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is a shareholder with Ikard Golden Jones. From 1998 through 2001, she was a staff attorney with the Third Court of Appeals.

No. 03-14-00267-CV (Tex. App.—Austin July 30, 2015, no pet. h.) (mem. op.). Garcia and Baumgarten disputed ownership of a home that they had purchased more than thirty years ago. The parties settled, but Garcia breached the settlement agreement. The trial court granted summary judgment for Baumgarten on the breach of contract claim and awarded attorney’s fees. The court of appeals affirmed on the merits, but modified the attorney’s fees award. The trial court awarded more than five times the amount of attorney’s fees incurred and segregated for the breach of contract claim. Further, the court modified the judgment to the extent it ordered Garcia to pay attorney’s fees from her proceeds of the sale of the property. Because the property was Garcia’s homestead, the trial court could not tax attorney’s fees against the sale proceeds. • AL September 2015 Austin Lawyer


Gloria Leal Honored by State Hispanic Bar Association


ustin Bar member Gloria Leal recently received the Hispanic Issues Section of the State Bar of Texas’ Reynaldo G. Lifetime Achievement Award. A longtime member of the Hispanic Bar Issues Section, Leal received the award for her involvement in the legal community, as well as her career achievements. Leal served as Chair of the Hispanic Issues Section of the State Bar from 1989-1990, when the section was known as the “Section on the Concerns of the Spanish Speaking Community.” Leal is also a past minority director of the State Bar of Texas and former president of the Mexican American Bar Association of Texas.

appointed by President John F. Kennedy to the United States District Court for the Southern District Court of Texas in 1961. For more information on past Reynaldo G. Lifetime Achievement Award recipients, visit texashipsanicissuessection.com. • AL

“Gloria is a pioneer, a trailblazer. She is always the first one to help our community.” – JUSTICE GINA BENAVIDES

“Gloria is a pioneer, a trailblazer. She is always the first one to help our community,” said Justice Gina Benavides, also a member of the Hispanic Bar Issues Section. “She’s been a trusted advisor, mentor and friend to many in our legal community over 30 years. She has been active at the national, state, and local level.” The State Bar of Texas has been awarding the Reynaldo G. Lifetime Achievement Award since 1983. The award is named after the Honorable Reynaldo G. Garza, who became the United States’ first Mexican-American federal judge when he was

Gloria Leal is presented with her award by Bernardino “Benny” Agosto Jr., immediate past chair of the Hispanic Issues Section.

Guest Speaker

Professor Lucia Ann Silecchia

at St. Mary Cathedral 203 E. 10th Street, Austin, Texas

Professor Silecchia was one of nine Americans to participate in a Vatican conference on Climate Change and Development, organized by the Pontifical Council for Justice and Peace. Professor Silecchia has served on the planning committee for the Association of Religiously Affiliated Law Schools, and hosted the 2008-2009 Conference on Catholic Legal Thought. She has presented at national and international conferences for legal educators, law librarians, lawyers, religious groups, students, and environmental professionals.

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Professor Lucia Ann Silecchia The Catholic University of America For more information, visit www.austindiocese.org/redmass


Austin Lawyer September 2015

Seeking Nominations to Honor Outstanding Attorneys

New Joseph C. Parker Jr. Diversity Award Recognizes Excellence in Diversity


he Austin Bar Association and the Austin Bar Foundation are accepting nominations for the Distinguished Lawyer Award, the David H. Walter Community Excellence Award, the Larry F. York Mentoring Award — and for the first time — the Joseph C. Parker Jr. Diversity Award. The award is named in honor of Joseph C. Parker Jr., the first African-American president of the Austin Bar Association. Blazing the trail for minority lawyers who followed in his footsteps, Parker has spent his life and work championing the equal, ethical, and fair treatment of all people, and raising awareness of the need to diversify our community. The new award will honor a firm or an individual who has led the way in bringing diversity to Austin’s legal community and who exemplifies all that Parker stands for. The Distinguished Lawyer Award recognizes the dedication of an attorney who has practiced for 30 years or more and

significantly contributed to the profession and the community. The David H. Walter Community Excellence Award honors an Austin Bar member who has recently made a significant impact in the community and, at the same time, raised the profile of the profession. The Larry F. York Mentoring Award, established last year as a tribute to the late Larry York, honors a Central Texas lawyer or judge who has demonstrated exceptional skill and generosity in mentoring younger members of the bar. Nominees must have practiced law for at least ten years. To recognize colleagues or friends who have had a large impact on you or the community, submit nominations for these awards to DeLaine Ward at DeLaine@austinbar.org. All award nominations must be received by Friday, September 25. The awards will be presented at the Austin Bar Foundation Gala on January 30, 2016. • AL

Congratulations to Top-Rated Firms in Diversity The Austin Bar congratulates the following firms for receiving an A on the 2014 Diversity Report Card: Andrews Kurth Baker Botts Bracewell & Giuliani

The Fowler Law Firm Gardere Wynne Sewell Husch Blackwell

Jackson Walker Vinson & Elkins Wilson Sonsini Goodrich & Rosati

To view the full report, visit austinbar.org.

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AAABA’s Attorneys in the Arts: Shining a Spotlight on the Community By Christine Hoang, Austin Asian American Bar Association


n July 30, 2015, the Austin Asian American Bar Association (AAABA) sold out its 2nd Annual Evening of Attorneys in the Arts, AAABA’s signature event aimed at building community through the arts. Net proceeds from Attorneys in the Arts benefitted the legal work of pro bono attorneys at Volunteer Legal Services, and the creative work of Asian and Asian American artists at the Austin Asian American Film Festival. Over 200 attendees gathered to enjoy dinner, a show, and a karaoke after-party at The Highball on South Lamar Blvd. Twenty-one attorney artists (storytellers, poets, musicians, vocalists, dancers) performed 13 original works. Lucky Chaos Theater also performed improv comedy skits featuring the 15 event sponsors in hilarious scenarios. AAABA President Chad Anson seamlessly linked all the acts together as the evening’s Master of Ceremonies. A few attendees had this to say about the event: “My favorite part was Law Cappella’s [a 7-part a cappella group] writing and singing of hilarious, unlikely lyrics on everything from clients who don’t pay their bills to the Notorious R.B.G.,” said Barbara Rebecca Eriksson, general counsel at Snow Software. Kristine Kovach with Seton Southwest Hospital said, “We came to this event to support our friend Courtney Moore, who spoke about her daughter’s triumphant battle against cancer. We didn’t know what to expect from the evening of ‘entertaining lawyers.’ I can tell you, it was the best night out I’ve had in a long time! I plan to return next year.” “My favorite part was the Lucky Chaos improv act where they used the names of all the sponsors in the skit: ‘I think I’ll just sit at home with a bottle of Jackson Walker. Oh, no, is that the Lochridge Monster? This Volkswagen Traurig gets 30 miles to the gallon,’” said Jo Ann Merica, McGinnis Lochridge.  

Photo by Antony P. Ng Photography Law Capella: (from left) Christine Hoang, Vanessa Puig-Williams, Erik Nielsen, Rob Johnson, Alison Bosch, Paige Barnett, Tracy Willi.

Judge Mark Lane, U.S. District Court said, “Because my father is also a Vietnam vet, I enjoyed James Hughes’ and Christine Hoang’s storytelling piece the most. It served as a reminder of not only our fathers’ military service and valor, but the tremendous impact they had on us once they returned from the war.” “It was the best and most entertaining lawyer fundraising event I have ever been to,” said Vic Feazell, Law Offices of Vic Feazell. One of the most heartfelt compliments came after Ramey Ko recited a poem to honor Judge Todd Wong, the first Asian-American to be elected to any seat in Travis County. After the show, Judge Wong asked for a copy of the poem to give to his mom. As the Producing Artistic Director of AAABA’s Attorneys in the Arts, I invite you to mark your calendars for next year. The 3rd Annual Attorneys in the Arts will return to The Highball on Thursday, July 28, 2016. • AL

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Travis County Civil & Family Courts Complex Campaign Update Public Outreach Presentations, Polling, & Creative Funding Solutions Underway


he Community for Civil and Family Courthouse PAC filed a biannual finance report on July 15, 2015. According to the report, the PAC, led by Directors Shannon Ratliff, Mike McKetta and Steve McConnico, has raised a total of $134,439.89 since January. Ratliff serves as Treasurer, and runs the PAC along with President Janet McCullar and Secretary Ryan Botkin. The campaign to educate and encourage Travis County voters on November’s bond to build a new Civil and Family Courts Complex is well underway.

The Commissioners have left no stone unturned in seeking creative funding solutions to offset the cost of the new CFCC.

The full report can be found at newcourtsforfamilies.com. The Travis County Commissioners and the Community Focus Committee have been workContact Genevieve Van Cleve, gen@newcourtsforfamilies.com, ing on this project, originally priced at $350 to schedule a presentation for your local community, million, for over ten years. The Commissioners professional, or civic group. have left no stone unturned in seeking creative funding solutions to offset the cost of the new CFCC. Over the past few months, they have developed several strategies to mitigate the tax burden that will be created by the proposed bond referendum for the CFCC. A new project budget of $291.6 million was approved on February 3, 2015, and on August 10, 2015 the budget was reduced to $287.3 million. This reduction comes from the sale of underutilized county property which brought $2.6 million dollars into the County’s coffers. The additional budget reduction resulted from removing interim land use from the budget since the Commissioners are pursuing the development of a South Tower to be built alongside the CFCC. The Commissioners have five strategies which they are discussing to reduce the tax burden of the proposed CFCC: 1. Sale of underutilized county-owned property; 2. Civil case filing fees; 3. Parking revenue from after hours and week end use of the CFCC garage; A county-appointed Community Focus Committee is 4. Lease revenue from the agreement for the construction of a conducting public outreach presentations about the project to South Tower on the CFCC block; and numerous community and civic groups, and many more are 5. Property tax revenue generated by the South Tower. planned for the coming months. The County Commissioners are The Commissioners, knowing that the provision of safe, also holding Precinct Open Houses to discuss the bond issue. secure, accessible, and functional facilities to house the Courts Visit traviscountytx.gov/cfcc/events to see a complete schedule is one of their mandated obligations, are working hard for the of meetings. citizens of Travis County to ensure that this mandate is carried Polling firm Tulchin Research conducted an initial voter out in a fiscally conservative and prudent manner. • AL survey in May and came to the following conclusions: “Our poll finds the measure is currently backed by a majority of voters (54%) and is well-positioned to pass…Based on a For more information about the proposed new basic description of the bond measure, 54% of voters say they Civil and Family Courts Complex: would vote for the measure if the election were held today Online: newcourtsforfamilies.com while 40% indicate they would vote against it. But in a simuEmail: info@newcourtsforfamilies.com lated engaged campaign in which respondents hear arguments both in favor of and in opposition to the measure, support Mail: 600 Congress Ave., Suite 3100, Austin, TX 78701 grows significantly. After messaging from both sides, voters faTwitter: @NewCourtsForFam vor the measure by a 28-point margin, with more than six in ten Facebook: facebook.com/newcourtsforfamilies voters (61%) supporting it to just a third (33%) opposed.”

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briefs Above: Carrick, Chester, Edge, and Moore, Right: Palvino and Weber

New Members Please welcome the following new members to the Austin Bar: Kyle Barrett, Insurance Coverage Mark Bissada Tiffany Carnes Salvador Castaneda, Mergers & Acquisitions Johnny Conner, Estate Planning Aaron Culp, Family Law Tracy Elaguizy, Estate Planning & Probate Karen Evertson Katherine Farrell Jason Gallini Edward Garris, Tax Law Nicolas Gavrizi, Construction Litigation Sandra Gonzalez, International Regulatory Compliance Robert Goodin, Corporate, Securities & Oil & Gas Law Lisa Hoyt, Administrative Law       Teri Jeffries, Business Law Zev Kusin, Litigation Elizabeth Larrick, Personal Injury William Magnuson, Mergers & Acquisitions, Corporate Governance & Private Equity Susan Maldonado, Government/ Administrative Law Eric Manchin, Plaintiff’s Serious Injury Litigation Lynne Morris, Criminal Defense Anne Osburn, Volunteer Legal Services, including Voting Rights David Randall Robert Scott Rewak, Family Law Nicolette Rivera, Family Law & Estate Planning/Probate Mark Roach Mary Sanchez, Eminent Domain, Real Estate Law, Property Tax Litigation E. Joy Sparks, Government/ Administrative Law Benjamin Uy, Corporate & Securities Janet VanderZanden, Family Law Erica Weinberger, Real Estate & Business, Natural Resources, Environment & Land Use Keith Wier, Consumer & Commercial Law Doak Worley, Oil & Gas Transactions

NEW TO THE OFFICE „„ Husch Blackwell has added Jennifer L. Buntz to its Healthcare, Life Sciences & Education team. „„ Lessie G. Fitzpatrick is now an Equity Partner at Fritz, Byrne, Head & Fitzpatrick. Website: FBHF.com. 221 West Sixth Street, Suite 960, Austin, TX 78701. „„ Cordell & Cordell hired Jillian French as an associate attorney for its Austin office. „„ McDonald, Mackay, Porter & Weitz have announced Jon E. Porter as a new partner. „„ Ikard Wynne has hired Scott Rewak and Mary Louise Phelps. Both join the firm as associates. „„ CHA Law Group has hired Janet VanderZanden as a family law associate. VanderZanden’s practice focuses on contested child custody matters, including CPS cases and divorce. „„ Andrew Weber, former first assistant attorney general of Texas, is the new partner-incharge at Kelly Hart & Hallman’s Austin office.

IN THE NEWS „„ Sam Bassett of Minton, Burton, Bassett & Collins was sworn in as President of the Texas Criminal Defense Lawyers’ Association on June 20, 2015. „„ McGinnis Lochridge has been named Product Liability Litigation Department of the Year by Texas Lawyer. The following Austin Bar members make up the firm’s Product

Liability Litigation Department: Ray Chester, Jessica Palvino, Andrew Edge, and Kayla Carrick. The award was chosen based on submissions from law firms, outlining important victories and cases in 2014, both domestically and abroad.

can Inn of Court. The American Inn of Court is an association of lawyers, judges, and other legal professionals from all levels and backgrounds who share a passion for professional excellence.

„„ Anna Eby began her first term on the Georgetown City Council in May. Eby, of Eby Law Firm, practices business litigation and appellate law. Website: ebylawfirm.com.

„„ The Chapman Firm Austin has moved its offices to Northwest Austin. The Chapman firm serves the construction industry in contract negotiation, claims, and litigation. 3410 Far West Blvd., Suite 210, Austin, Texas 78731.

„„ E.G. “Gerry” Morris was sworn in as President of the National Association of Criminal Defense Lawyers at the Association’s 58th Annual Meeting in Denver, Colorado. „„ Paul Parsons has been selected for inclusion of the 2015 edition of Chambers USA: America’s Leading Lawyers for Business. The Chambers guide recognizes leading lawyers and law firms through interviews with thousands of lawyers across the U.S. and their clients. „„ Reid Collins & Tsai was named a finalist for Litigation Department of the Year with Texas Lawyer. „„ Houston-based law firm, Jackson Gilmour & Dobbs, is expanding its offices to Austin. John Riley will lead the new Austin office. Riley is the former head of the Texas Commission on Environmental Quality. 1115 San Jacinto Blvd., Austin, TX 78701. „„ John P. Vacalis has been has been selected as a member of the Robert W. Calvert Ameri-


If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing. Items are printed as space is available. Information on lawyers who are not Austin Bar members will not be printed. Briefs do not include information on talks, speeches (unless they are of national stature), CLE presentations, political announcements, or notices of honors determined by other legal publications (e.g., Super Lawyers, Best Lawyers, Texas Lawyer, etc.). Announcements for briefs should include all pertinent information including firm name, address, and contact numbers. Send submissions to Communications Assistant Britni Rachal at britni@austinbar.org. September 2015 Austin Lawyer


w w w. a y l a . o r g

Bar Leaders Conference Honors AYLA


ongratulations to the Austin Young Lawyers Association for outstanding programming during the 2014–2015 Bar year. At the Bar Leaders Conference, a two-day training program held this year in Houston, AYLA received the following awards: Second Place, Large City Best Service to the Public was awarded to Holiday Baskets and Reindeer Games. Third Place, Large City Comprehensive was awarded for overall excellence in serving the profession and community. The conference is meant to shed light on what is means to be a bar leader as well as address common concerns for volunteer leaders. Thank you to AYLA Presi-

Text to Win Bar & Grill Tickets! Text the keyword AUSTINBAR to 313131 for a chance to win a pair of tickets to AYLA’s Bar & Grill show to be held on Friday, October 16, at 8 p.m. at the Paramount Theater. Two lucky people will be the recipients of a pair of tickets donated by Bar president, Judge Eric Shepperd. Send your text by September 30, and the winning phone numbers will be drawn by the Austin Bar Board of Directors at their September meeting on the 30th. Winners will be notified by text. See you at Bar & Grill, October. 16th!

(from left) Sandy Bayne, Katie Fillmore and Drew Harris accept awards at Bar Leaders Conference.


dent-Elect Katie Fillmore and Directors Drew Harris and Sandy Bayne for representing AYLA at the Bar Leaders Conference this year. • AL

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Austin Lawyer September 2015



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AYLA: More Than a Monthly Happy Hour


hile many of you have heard of or attended a monthly Docket Call, do you know about the many service events AYLA does throughout the year? Nearly every month there is an AYLA project going on. From lunch with the judiciary to a signature service event such as Reindeer Games, there is a way to be involved with AYLA. Currently, applications are being accepted for committee members to serve in the following ways:

Service to the Public Community Service Days: This committee provides lawyers and non-lawyers with periodic opportunities to volunteer for non-profit organizations, including coordinating multiple community service events on MLK Day. The community service events provide an opportunity for lawyers to make a relatively small time commitment, usually just a few hours on one day, while being exposed to various charitable organizations and meeting other members of the legal and non-legal communities. Holiday Baskets/Reindeer Games: This project utilizes the resources of the legal community to provide special holiday groceries, as well as gifts and informative materials, to Austin-area families in need. Reindeer Games is an annual holiday celebration for foster, economically disadvantaged, and/or special-

needs children. To maximize efficiency, last year the projects were combined so that the children of families who received holiday baskets were invited to the Reindeer Games event. Women’s Resource Fair: This is a comprehensive, all-day event that provides homeless and battered women a variety of free resources and services, including legal assistance, medical services, job skills, educational counseling, social services, veteran’s assistance, shelter referrals, mental health counseling, spiritual care, child care, breakfast, lunch, and transportation.








Service to the Bar Judicial Reception: This committee organizes an annual reception for AYLA members to interact with members of the local, state, and federal judiciary. Continuing Legal Education: This committee develops quarterly CLEs on a variety of current legal topics for AYLA members. Docket Call: This is a monthly happy hour for AYLA members. This event serves as the gateway event for many of our members, as nearly everyone’s first experience with AYLA is at a Docket Call.

Fundraising Bar & Grill: This committee presents an annual musical featuring an all-lawyer cast. The show has been produced for over 20 years!


F R I Dfundraising A Y , O C Teffort, OBER 6 ,Grill 2 0 1tickets 5 • 8 raise P M dollars for the As part of AYLA’s Bar1 & STATESIDE AT THE PARAMOUNT organization’s many charitable endeavors. Don’t miss the 2015 show on TICKETS AVAILABLE AT October 16. Be W prepared beTtransported far, far away! WW . A U S TtoI N H E A T R E .to Oa R galaxy G

Runway for Justice: This is a fashion show fundraiser showcasing lawyer and law student models, and a silent auction. A portion of the proceeds go directly to the Women’s Resource Fair.

judges. The committee will develop CLE topics and recruit speakers.

Joint Programs

For details and to sign up, please visit our website at ayla.org. Questions? Email Debbie Kelly at debbie@ austinbar.org. • AL

Bench Bar: AYLA partners with the Austin Bar to organize the annual full-day conference for lawyers and

Judicial Program: Quarterly events allow younger attorneys to interact with members of the local judiciary.

September 2015 Austin Lawyer


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Austin Bar & AYLA Judicial Program By Tom Jacob


re you a young lawyer? Would you like to be more familiar with the judiciary? Wouldn’t it be great if you could meet a few judges and get to know them in an informal setting? Then have we got a deal for you! AYLA Treasurer Austin Kaplan and I serve as cochairs of the Judicial Program, a joint venture of the Austin Bar Association and the Austin Young Lawyers Association. This quarterly program provides young lawyers with the opportunity to meet the judiciary. Over the past year, we have held a number of successful events. Federal Magistrate Judges Andrew Austin and Mark Lane talked to our group about discovery practice and decorum. Newly elected District Judge Karin Crump and County Court at Law Judge Todd Wong spoke about ad-

(from left) Brian Sullivan, Andrea Rose, Austin Kaplan, Judge Robert Pitman, Tom Jacob, and Dave Floyd at the June 2 Judicial Program sponsored by Integrity Legal Support Solutions.

vocacy and what they, as new judges, expect from lawyers. Federal District Judge Robert Pitman spoke about his appointment to the bench and provided tips on advocating and presenting trials in federal court and in his courtroom. In late August, Texas Supreme Court Justices Jeff

Brown and Debra Lehrmann were featured. One of the most popular aspects of the Judicial Program is the limited audience size, so lawyers can really interact with the judges and have a back-and-forth dialogue. Consequently, spots fill up quickly. Stay tuned to learn when

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Austin Lawyer September 2015

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the next Judicial Program is planned, and remember to RSVP early at austinbar.org to reserve your spot. If there is a judge or group of judges you would recommend for a future installment of the program, please let me know. Contact me at jacob@ nationaltriallaw.com. • AL

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AYLA is Here to Help In Times of Need Personal Crisis Assistance Program (PCAP) Helps Protect Members


s your practice suffering because of a personal crisis? Are you enduring tough times, but don’t know where to turn? The Personal Crisis Assistance Program (PCAP) is here to help in your time of need. PCAP was created in 1996 to support Austin-area attorneys who face an immediate need for temporary financial

or practice assistance due to a personal crisis. The objective of this program, funded by the Austin Young Lawyers Association Foundation, is to serve as a protection for lawyers and their clients when personal emergencies harm a lawyer’s practice. PCAP is available to attorneys who work or reside in Travis County and who are eligible for regular membership in AYLA. 

PCAP includes two levels of short-term assistance for lawyers in crisis: Financial – PCAP provides grant funds of up to $1,500 to assist an attorney who is unable to fulfill certain practicerelated financial obligations due to a personal crisis. Practice-Related – Attorney volunteers agree to handle professional matters for the affected lawyer during

the crisis. To apply confidentially for financial or practice assistance, please contact Debbie Kelly at 512.472.0279, x105 or at debbie@austinbar.org. Regardless of how overwhelming the problem may seem, help is available. You have worked hard to build your career — PCAP is here to help you get back on your feet. • AL

AYLA Judicial Reception Thursday, September 24 5:30 – 7:30 p.m. Four Seasons Hotel 98 San Jacinto Blvd.

AYLA Docket Call Thursday, October 15 5:30 – 7 p.m. Location TBD



UPCOMING EVENTS AYLA Bar & Grill Show Friday, October 16 8 p.m. Stateside at the Paramount Tickets on sale now: austintheatre.org

Kirk Overbey Professional Registered Parliamentarian Credentialed through the National Association of Parliamentarians

Services • Parliamentarian for conventions and boards • bylaws interpretation and construction • expert witness and litigation consultant 512-517-1047 prp@jwko.net Website: www.jwko.net

September 2015 Austin Lawyer


entre nous Originalist Sin? By Claude Ducloux, Law Offices



Claude E. Ducloux

cene: a Webcast at the State Bar of Texas. [Applause]

HOST: Thank you, ladies and gentlemen here in our live studio audience. As you know, this past summer has been extremely eventful, with the landmark decisions of Obergefell on marital equality and King v. Burwell on the Affordable Care Act. To say the least, these decisions have strong supporters and detractors on each side. Opponents say the Court “legislated from the bench.” Supporters rejoiced, asserting that the court finally circumvented political roadblocks to the public will, and saved health insurance for millions who had no alternative. The courts have difficulty in examining contemporary statutes and morés, and determining how words written 225 years ago should apply. At the center of modern arguments on constitutional interpretation is the “originalist” theory. Rather than try to explain it myself, I have invited Professor Henri Cerveau, as well as some noted commentators. Incredibly, through the magic of time-travel, we are proud to have with us three of the primary authors or interpreters of the United States Constitution: James Madison, Thomas Jefferson, and Alexander Hamilton. Gentlemen, welcome. MADISON: Our pleasure. Shall I keep notes? JEFFERSON: Simply marvelous to join you. HAMILTON: Why did you introduce Jefferson before me? He was in France. HOST: Ahem. Gentlemen, we have asked you here to comment on your intentions in the drafting of the Constitution vis-à-vis the development of “originalism,” but first, we shall have Professor Cerveau explain this theory for you. Professor? PROFESSOR: Well, briefly, originalism is a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment. The originalist enterprise, then, is a quest to determine the meaning of the utterances, which cannot change except through formal amendment. It is an example of “textualism,” which is usually only applied interpreting statutes but not Constitutional principles. I might add, there are two distinct schools of originalism that are at odds: the most severe are the “strict constructionists” who say you must not vary from the words. Thus, “using a cane” cannot mean “walking with a cane.” No latitude. But the other school says, “No, originalism is about interpretation, not merely construction.” An originalist may look at the words in the context of the times when written. What are the characteristics? Is there any room for interpretation? 28

Austin Lawyer September 2015

At the center of modern arguments on constitutional interpretation is the “originalist” theory. MADISON: But clearly, it appears that these strict constructionists leave no room for progress, technology and invention. PROFESSOR: Exactly, all new dimensions or expansion require amendment. JEFFERSON: But wouldn’t that evince the obsolescence of the document over time? HAMILTON: Clearly, broad concepts must fall under its penumbra, or its principles are useless. PROFESSOR: So, does the idea of interpreting original words in the context of the time appeal to you? MADISON: That would depend upon the boundaries of interpretation. JEFFERSON: Certainly, to constrain its utterances to ancient technology limits any rational interpretation to future commerce. HAMILTON: Harrumph! This originalism sounds merely like a technique which is malleable to a political philosophy. I can assure you, such a limit was never discussed. And how could such a limitation apply to the Bill of Rights? Those short phrases are essentially useless if limited by the science and social customs of centuries ago. HOST: That leads me to these questions. For example, the right to bear arms is now interpreted to allow any citizen to obtain unlimited quantities of the latest personal weapons, including modern items which fire 600 rounds per minute.

HAMILTON: What? Absurd. We intended one musket and one sabre per household, solely to keep at the ready for the rapid deployment of militias commissioned by the state. MADISON: Yes, we were still in close recollection of the need for universal service. Years later, of course, we realized that militias could never coordinate the defense of an expanding nation, and we established a national army. HOST: Well, no one needs to serve in a militia to keep and maintain a large quantity of military weaponry. MADISON: What? What happened to that first dependent clause of the amendment, basing the right to bear arms for the maintenance of a well-regulated militia? Is that gone? HOST: No. MADISON: But that was the intent, so how do the strict constructionists vary from our intent? HOST: Um...it’s complicated. What about laws limiting and requiring disclosure of secret funding of presidential campaigns? MADISON: What? We never contemplated financing of campaigns. Electoral College chooses. HOST: They claim such unlimited and secret funding derives of free speech rights. HAMILTON: Hmm. Interesting. But how does that square with originalism? If campaign finance is not a crime, why can’t disclosure of donations be required in the public good? HOST: Because corporations are people? JEFFERSON: I must admit I am lost in modern constitutional theory. MADISON: As a witness to its creation, I can verify that, in its simplicity, the purpose of our constitution was to create a strong central government: stronger than the Articles of Confederation, which were more articles of diplomacy than sovereign principles. But at our core, we strove to identify common principles that would advise and guide across the centuries: principles of commerce, democracy, rights of due process, and balanced branches of government. We provided for the sovereignty of Law to guide society, and our willingness to be committed to such a Rule of Law.

JEFFERSON: It would indeed be a living document. And as we progressed through the infancy and adolescence, we knew it had to be subject to change and interpretation, as indicated as the history and imagination of man directs and requires. HAMILTON: I personally wrote 51 of the 85 essays in the Federalist, so strong was my commitment to the need for a strong central government and financial system. But I, too, understood that the future would require interpretation and inevitable change. We created three branches so that no one branch could thwart the public’s will. MADISON: I agree, but make no mistake. We should never make change “for light and transient causes,” as Mr. Jefferson so eloquently admonished in our Declaration of Independence. Nor should we make law by opinion poll. But we do expect courts to step in when rights are being denied based upon discredited political motives. Look, our generation didn’t allow women to vote, and we countenanced slavery. We are pleased to see those days are gone, as well they should be. HAMILTON: And as for an expression of the need to identify progress and change accordingly, I can certainly do no better than the words of Mr. Jefferson, words which are enshrined for all to see today on some monument to him on the Potomac. Can you still recite them, Thomas? JEFFERSON: Ahem... I’ll give it a try: “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” – Inscription on display at the Jefferson Memorial MADISON: Assuming we all agree with Thomas, tell me how originalism fits again? HOST: Oh look, we’re out of time. Don’t forget to click on the CLE credit button. Keep the faith. • AL

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September 2015 Austin Lawyer


upcoming events



Bar Office Closed

Observance of Labor Day

Austin Lawyers Wellness Group

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Time: Noon – 1 p.m. Location: Austin Bar, 816 Congress Ave., Bluebonnet Room (3rd Floor)

Members Only 4th Friday Free CLE

Time: Noon – 1 p.m. Location: Austin Bar, 816 Congress Ave., Suite 700 Topic: TBA Speaker: TBA CLE: 1 hour participation credit

The Upcoming Events page highlights just a few of the events of interest to the Austin legal community. For a full listing of Austin Bar events, including Section CLEs, please visit the website at austinbar.org/events.

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Austin Lawyer September 2015


Advertiser Index

OFFICE SPACE Downtown Attorney Office Available on Congress Avenue. Sublease includes office furnishings, high-speed internet, law library, reception area and services, shared conference room, and kitchen/ break room. Month-to-month sublease also available. Call 512.476.5757 for more information. Office space available two blocks from Courthouse. Common areas include: reception, two conference rooms and kitchen. Tenants share reception staff for greeting incoming clients, accepting deliveries and mail distribution. We have one 14’x11’ window office and one interior office, approximately 10’x10’. Window office has view of west Austin. Offices can be leased together or separately. Parking in the attached garage is $110 per month per automobile, tax inclusive. Please call 512.478.1011 to schedule an appointment to visit the space. Office space for lease in Westlake on Bee Cave Road near Mopac. Charming two-story Victorian house in an office park made up of Victorian houses. Six private offices, large reception area and large conference room, kitchen, coffee bar, two bathrooms, extensive built-ins, free parking. Please contact Paul Gamel at 512.461.4001 or paul@paulgamelassociates.com to schedule a visit. Office by Zilker Park. Rent includes all utilities, ample parking, reception area,

access to conference rooms, and an exercise room with showers. Plus, all tenants in the building are attorneys — almost all of whom have been tenants for many years. 512.472.8000. Austin firm has a large, corner office and an additional mid-size office available in a Collaborative Law Office. The location is in a restored warehouse on the east side. Keeping with the unique spirit of Austin, the space unites lawyers and legal workers from different fields of law in an area where attorneys can share knowledge and research pertaining to cases, creating an inspiring environment. Shared conference room, kitchen, and bilingual reception. Interested attorneys please contact 512.485.3003. Sublease space from law firm available in Mira Vista office complex on Bee Cave Road. Contact Bonnie Zook, Slack & Davis, 512.795.8686. Two offices available in Westlake area, class A space, shared conference room, kitchen and bath rooms. Offices are about 13’x12’, large windows overlooking green space. Onestory building shared with three real estate lawyers. Great location, next to Rudy’s BBQ, 2301 S. Capital of Texas Hwy, J-102. Rent is $950/office, includes maid service, utilities and telephone sets. Call Michelle Williams 512.328.3911.



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Austin Lawyer, September 2015  

The official publication of the Austin Bar Association, Austin Lawyer is published 10 times per year and goes to more than 4,000 legal profe...

Austin Lawyer, September 2015  

The official publication of the Austin Bar Association, Austin Lawyer is published 10 times per year and goes to more than 4,000 legal profe...