Introducing Austin Bar President—D. Todd Smith O … · tration from Texas Tech University, and then south to San Antonio, where he earned his J.D. from St. Mary’s University

austinbar.org

JULY/AUGUST 2019 | VOLUME 28, NUMBER 6

Introducing Austin Bar President—D. Todd Smith

O n July 1, 2019, D. Todd Smith officially took over the reins of the Austin Bar

Association as he began his term as president. Joining him on the executive committee for the 2019-20 bar year is Kennon Wooten, president-elect; David Courreges, secretary; Amanda Arriaga, treasur-er; Adam Schramek, past-president; Sandy Bayne, AYLA president; and Jorge Padilla, AYLA past-president.

Smith, a civil appellate lawyer with the Smith Law Group, is a fifth-generation Texan originally from Fort Worth. His parents moved to rural Johnson County when he was in elementary school, and he grew up in the Crowley area. He returned to Fort Worth for college and earned his bachelor’s degree at TCU. From there, he headed out to West Texas, where he received a master’s degree in public adminis-tration from Texas Tech University, and then south to San Antonio, where he earned his J.D. from St. Mary’s University School of Law.

He met his wife, Julie, when they were undergrads at TCU. Married 22 years, they have two sons, Landon (17) and Walker (14). Landon is a senior at Hyde Park High School, and Walker is a fresh-man at Westlake High School.

Smith agreed to be interviewed so the members of the Austin Bar

could learn more about their new president and his plans for the organization in the coming year.

AUSTIN BAR: Why did you want to become a lawyer?

SMITH: I am the only lawyer in my family. I first thought about a legal career after my high school speech teacher recruited me and some other students to represent Crowley High in University Interscholastic League speech and debate competi-tions. When I was a senior, I wound up making the state tournament in standard debate. By that point, I could argue both sides of a controversial issue fairly well. Law seemed like a natural fit.

Another major influence was my father’s reverence for the judicial branch. Dad spent his career work-ing in the field of federal probation, and he valued the relationships he developed with the judges he worked for. He spoke well of them and was honored that they trusted and relied on his recommendations. He made sure I had the opportuni-ty to meet the judges and ask them questions when I first started think-ing about law school. He later tried to talk me out of going—thinking he could steer me toward a career in government like he’d had—but by then, my mind was made up.

AUSTIN BAR: What was your first job out of law school?

SMITH: I was privileged to complete a two-year clerkship with Texas Supreme Court Justice Raul A. Gonzalez. That job sparked my interest in appellate work and helped me appreciate the skill set needed to become a successful appellate lawyer. It also brought me to Austin!

AUSTIN BAR: What has been your career path from then until now?

SMITH: After finishing my clerkship, I joined Fulbright & Jaworski, where I had the oppor-tunity to practice with, and learn from, some of the finest appellate lawyers in Texas. After six years in the Dallas office, I transferred to Austin and stayed three more years before launching my own firm in 2006. Since then, I’ve focused my practice on civil appeals and con-sulting in matters before the Texas Supreme Court, the Third Court of Appeals, and other courts in and around Central Texas.

AUSTIN BAR: How long have you been involved with the Austin Bar?

SMITH: I joined the Austin Bar after moving back in 2003 and really got involved when I went out on my own in 2006. I officed on the twelfth floor at 816 Congress Ave., so an abundance of CLE, networking, and service oppor-tunities were available simply by riding the elevator down five floors. I soon became active in sec-tions and started volunteering for committee work. I ran for director after chairing the Solo/Small Firm and Civil Appellate Sections and put in to become an officer when the time felt right. Every stage has been thoroughly enjoyable.

AUSTIN BAR: Why would you encourage someone to get involved?

SMITH: Most lawyers practice solo or in small-firm settings. In

(from left) Austin Bar President D. Todd Smith with his wife, Julie; and sons, Walker,

and Landon.

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CONTENTS

INSIDE

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NEWS & ANNOUNCEMENTS

Austin Bar Association Wins Awards Presented by the State Bar of Texas

Rachelle Ritter Memorial Scholarship Fund Established To Benefit the Daughter of Chris Ritter, Austin Bar Member and Director of TLAP

DEPARTMENTS

10 Briefs

15 Opening Statement

17 Third Court of Appeals Civil Update

18 Third Court of Appeals Criminal Update

21 Federal Criminal Court News

24 AYLA

26 Practice Pointers

EVENTS & MORE

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FEATURED ARTICLES

1 Introducing Austin Bar President—D. Todd Smith

6 Ground-Breaking Ceremony Held for New Travis County Civil and Family Courts Facility

7 Austin Bar/AYLA Leadership Academy Hosts Pie Fest

8 Thank You, Hilgers House Donors and Supporters!

9 Celebrating a Job Well Done

12 100 Years of Women’s Suffrage in Texas

16 The “Mentoring A Student” Program

20 Hon. Lee Yeakel Inn of Court Presents Successful CLE Programs

22 American Inns of Court and American Board of Trial Advocates Hold Joint Trial Academy

23 Grant Recipients and Award Winners Honored at Luncheon Hosted by Travis County Women Lawyers’ Association and Foundation

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4 AUSTINLAWYER | JULY/AUGUST 2019

OFFICIAL PUBLICATION OF THE

AUSTIN BAR ASSOCIATION

AUSTIN BAR ASSOCIATIOND. Todd Smith ............................ PresidentKennon Wooten ...................... President-ElectDavid Courreges ..................... SecretaryAmanda Arriaga ....................... TreasurerAdam Schramek ....................... Immediate Past-President

AUSTIN YOUNG LAWYERS ASSOCIATIONSandy Bayne .............................. PresidentDavid King .................................. President-ElectRachael Jones ........................... TreasurerBlair Leake .................................. SecretaryJorge Padilla .............................. Immediate Past-President

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DeLaine Ward........................... Executive DirectorNancy Gray ................................ Managing EditorDebbie Kelly .............................. Director of AYLAJennifer Hopgood ................... Editor-in-ChiefRachael Jones ........................... Copy Editor

Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the an-nual rate of $10 membership dues by the Austin Bar As-sociation and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send ad-dress changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701.

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our profession, though, going it alone has become increasingly dangerous. We’re all human, which means we have an innate need to belong, to exchange social feedback, and to receive support when our path is uncertain. The Austin Bar provides innumera-ble opportunities to connect at whatever level one feels com-fortable. Attend a CLE event or section meeting and just observe and learn. Or, go all in and join a committee or sign up for one of our award-winning pro bono projects. There truly is something for everyone in this welcoming and inclusive organization.

Complementing these opportu-nities, we’ve acquired a permanent home on Judges Hill and will be transitioning to that space during my term. Anyone who has seen the building appreciates its upside, as we’ll be able to host committee meetings, receptions, and other events on-site. The historic property will provide a wonderful environ-ment for our board and committees to meet and further the Austin Bar’s mission of enhancing the le-gal profession, administration of jus-tice, and our community through education, networking, and public service. There’s never been a better time to join and get involved.

AUSTIN BAR: What has been the biggest benefit you’ve received from being involved in the Austin Bar?

SMITH: The CLE programs

alone make Austin Bar member-ship worth the price of admission. For me, though, participating on committees and getting involved in section leadership was where things took off. I found myself working shoulder-to-shoulder with a cross-section of lawyers and judges I probably would not have come to know otherwise. Now, I am privileged to count many of these folks among my colleagues and friends.

AUSTIN BAR: If you could give your younger self a word of ad-vice, what would you tell him?

SMITH: Don’t let the perfect be the enemy of the good.

AUSTIN BAR: What are your goals for the upcoming year?

SMITH: Having acquired Hilgers House during the past bar year, our new focus will be getting it ready, moving in, and getting settled. We have some work left to do in the transition, including a renovation that will turn the carriage house garage into a boardroom-type meeting space and creating ADA-compli-ant restrooms. I would love for everything to be completed so we can showcase the property to na-tional bar leaders when they come to town in February 2020 for the American Bar Association mid-year conference. No pressure!

AUSTIN BAR: Do you have any new initiatives or programs you’re hoping to start this year?

SMITH: We lawyers have trouble coping with the stresses of our profession in healthy ways. This is not some generic problem we only hear about in the national news. In recent years, we have lost valued members of our own legal community to suicide and sub-stance abuse, among other causes. With help, I am developing an initiative that will address lawyer well-being at the local level. This is about more than diet and exercise, although those things certainly factor into one’s overall wellness. We need to break through the stigma that keeps those struggling with mental-health issues from talking about them and getting the help they need.

AUSTIN BAR: What challenges do you think we face as an orga-nization, and how do you think we can overcome them?

SMITH: Providing the same or a better level of service without raising dues is a challenge in any voluntary organization. We have been confronted with increasing overhead costs and somewhat lower membership numbers, creating a challenge on both the revenue and expense sides of the balance sheet. And for a while, we’ll have the joy of paying both a mortgage and rent

as we complete the Hilgers House transition. We’ve planned for this overlap, though, and the Hilgers House capital campaign has gone very well, so we are very stable financially despite this challenge. Still, it would be great if we could sublease our 816 Congress space (so we can put that money back into the house) and increase our membership numbers. Once we jettison our downtown rent, our monthly operating expenses will be lower than they were before.

AUSTIN BAR: What is a little- known fact about yourself?

SMITH: The initial “D” in my name stands for “David,” which was my father’s middle name.

AUSTIN BAR: Is there any-thing else you’d like to share about yourself or your goals?

SMITH: Organizationally, we are in great shape right now. Our staff is top notch, and we continue to win awards for our programming and raise money for the Austin Bar Foundation and its charitable projects. We’re planning another fantastic winter gala, and we’ll be celebrating the 30th anniversary of the Bench Bar Conference next spring. It’s shaping up to be anoth-er great year. Please join us!

AUSTINLAWYERAL AL

Introducing Austin Bar President—D. Todd Smithcontinued from cover

With help, I am developing an initiative that will address lawyer well-being at the local level.


Ground-Breaking Ceremony Held for New Travis County Civil and Family Courts Facility

O n May 31, 2019, Tra-vis County leaders convened to break ground on the site of

the future Civil and Family Courts Facility—a day many in attendance thought would never come. Ac-cording to Austin Bar Association Executive Director DeLaine Ward, the Austin Bar has been working with the Travis County Commis-sioners since 2002 to get a new courthouse built.

Travis County Judge Sarah Eckhardt kicked off the ceremony by speaking to the crowd gathered at 1700 Guadalupe, where the new courthouse will be constructed. Joining Judge Eckhardt as speak-ers at the event were Travis County Commissioners Brigid Shea and Jeff Travillion, Travis County Dis-trict Judge Lora Livingston, and Austin Bar Past-President Adam Schramek.

“This ground-breaking marks the beginning of the construction

phase of our plans for a new civil and family courthouse,” re-marked Judge Livingston. “This new courthouse will provide a safe and dignified space for the resolution of civil and family law disputes in Travis County. I could not be more excited! There are so many people to thank including Judge John Dietz and, of course, every single member of the Travis County Commissioners Court.”

Schramek reminded the audience that, as the preamble to the U.S. Constitution states, our country was founded in order to establish justice. He said, “And so today, as our community comes together to celebrate breaking ground on a new courthouse, it’s important to remember that we’re not just celebrating a building, a new facility, or a construction project. We’re celebrating our communi-ty’s investment in the founding ideals of our democracy. A place

where rights will be adjudicated by an independent judiciary that guarantees due process of law. We’re celebrating the creation of a place that will be more accessi-ble, better equipped, and better able to serve the people of Travis County. We’re celebrating the advancement of our civil justice system. And ultimately, we’re celebrating today the prospect that this new courthouse will take us one step closer to being able to

deliver on that enduring promise of justice for all.”

The new courthouse facility is scheduled to be completed in 2022 and will feature 25 new, state-of-the-art courtrooms and dedicated safe victim waiting areas. It will also include confer-ence rooms for attorney-client meetings, a short-term child drop-off center, a law library, a self-help center, and a four-level underground parking garage.

AUSTINLAWYERAL AL

Travis County leaders, including members of the judiciary and Austin Bar Past-President

Adam Schramek, break ground on the new Travis County Civil and Family Courts Facility.

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Austin Bar/AYLA Leadership Academy Hosts Pie FestEvent Benefits the Austin Bar Foundation’s “Our Home on Judges Hill” Capital Campaign

O n June 1, 2019, the Austin Bar/AYLA Leadership Academy class of 2019 hosted

Pie Fest, a pie-themed cook-off that raised almost $16,000 for the Austin Bar Foundation’s “Our Home on Judges Hill” capital campaign in support of Hilgers House. Events included a Frito pie chili cook-off and a dessert pie competition. The con-testants were judged by esteemed members of the local judiciary.

Thirteen teams competed in the chili cook-off. First place in the Judges’ Choice category was awarded to Team Red Ipsa Loqui-tor, comprised of Clint Twaddell and Will Allensworth. The awards for Crowd Favorite and Best Team Spirit went to Team Misfits, com-prised of Sarah Harp, Jessica Mac-Carty, and Mary McCahon-House. Emily Morris and Nicole LeFave tied for first place in the dessert pie competition.

Pie Fest also included a silent auction offering the opportunity to pie members of the Austin Bar in the face for a good cause. The pie-in-the-face volunteers included Jeff Otto, Randy Howry, Jessica Mangrum, Maria Cantù Hexsel, Kennon Wooten, and Ben Dower.

Thank you to all of Pie Fest’s sponsors, participants, and attendees, especially the local judges, for making the event such a success.

AUSTINLAWYERAL AL

1. Members of the judiciary and pie judges

included Texas Supreme Court Justices

Debra Lehrmann, Jeff Boyd, and Brett

Busby. 2. Adam Schramek prepares to plant

a pie in Kennon Wooten’s face. 3. Shafeeqa

Giarratani and her daughter enjoying some

pie on the Howry Breen Veranda with

Justice Chari Kelly. 4. Judge David Wahlberg

sampling Frito pie made by the Jackson

Walker summer associate team. 5. Members

of the 2019 class of the Austin Bar/AYLA

Leadership Academy, which coordinated and

hosted the event. 6. League of Lady Lawyers

team: (from left) Colleen Murphey, Catherine

Chamblee, Allison Cunningham, and Emily

Willis. 7. Judges Ami Larson, Darlene Byrne,

Texanna Davis, and Bradley Temple. 8. (from

left) Adrienne Redinger, Meagan Jones, and

Emily Morris keep an eye on the pies.

1

2

3

4 5

6

7

8


Thank You, Hilgers House Donors and Supporters!

T he Austin Bar Founda-tion sincerely thanks each and every donor who has generously

supported the “Our Home on Judges Hill” capital campaign. Without the support of these firms and individuals, we wouldn’t be planning to move into Hilgers House early this fall. After 126 years without a permanent home, we are looking forward to con-tinuing our legacy of service from our new headquarters. And we can’t wait for you to visit Hilgers House—our home on Judges Hill.

The capital campaign is now 80 percent of its way towards its final goal. Gifts of $5,000 and up will be recognized on the Bill White-hurst Leadership Wall in Hilgers House, and gifts of $1,000 to $4,999 will be recognized on the Jackson Walker Visionary Wall in the Loewy Family Carriage House. There is still time to have your name added to this list of influenc-ers in Austin’s legal community.

More details on purchasing pavers for the garden spaces will be available during phase two of the capital campaign.

The following list of donors is current as of 6/13/19.

THE BILL WHITEHURST LEADERSHIP WALLAlexander Dubose Jefferson & Townsend Amanda A. Arriaga Austin Bar Civil Appellate Section Austin Bar Estate Planning & Probate Section Tom and Robbie Ausley Austin Trust Company Austin Bar/AYLA Leadership Academy Class of 2019 Austin Young Lawyers Association Barron & Newburger Steve & Jennifer Benesh Cleveland | Terrazas Judge Jim Coronado David Courreges Berry Crowley, in memory of Mike Crowley, past-president of the Austin Bar Association Judge Karin Crump D. Michael Dodd Duggins Wren Mann & Romero Vic Feazell Fowler Law Firm Graves Dougherty Hearon & Moody Howry Breen Hutcheson & Popp Jackson Walker Rusty Kelley Mike Kennedy Mishell B. Kneeland Littler

The Lola Wright Foundation The Loewy Family Laura Prather McKool Smith Janet McCullar Judge Orlinda Naranjo and Jim Ewbank Norton Rose Fulbright Bill & Margaret Parrish Yvonne K Puig & Edward O. Lent III Reeves & Brightwell Chief Justice Jeff Rose Cindy Saiter Adam T. Schramek and Justice Chari L. Kelly Sharon M. Schweitzer Lance and Laura Sharp D. Todd Smith Jason W. Snell Thompson & Knight Maitreya and Rachel Tomlinson Vinson & Elkins Karen & Stanley Wang William Stutts Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob Winstead Judge Todd Wong Judge Lee and Anne Yeakel

THE JACKSON WALKER VISIONARY WALLAustin Bar Administrative Law Section Austin Bar Business, Corporate & Tax Section Austin Bar Civil Litigation Section Austin Bar Construction Law SectionAustin Bar Labor & Employment SectionAustin Bar Real Estate SectionAustin Bar Solo/Small Firm SectionAustin Black Lawyers Association Alex Fuller Law, PLLC Jamal Alsaffar Anthony Arguijo Judge James L. Arth Don Ballard S. Meade Bauer Becky Beaver Vasu Behara Eric Behrens Ches & Diann Blevins Amy Bloomquist Roger B. Borgelt Wm. Terry Bray Lea N. Brigtsen Jay BrimCain & Skarnulis The Carlton Law Firm Randy ChapmanMichelle ChengBollier CicconeCollaborative Divorce Austin Judge Margaret A. Cooper Martha Dickie and James Rader Leslie Dippel Claude Ducloux Maggie Ellis and Leslie Hill Ed & Peggy Fernandes Judge Wilford FlowersFriday Milner Lambert Turner Judge Maya Guerra Gamble Ann Greenberg Dahlia Marie GutierrezThe Haney Law Firm Hanna & Plaut Danielle and James Hatchitt

George E. Henderson Laurie Higginbotham Greg Hitt Judge Nancy and Jack Hohengarten Brad and Julie Houston Judge Dustin and Emily Howell Denise Hyde Judge Scott Jenkins Jennifer Piskun Johnson Bill Johnson Dirk Jordan Austin Kaplan Patrick Keel Lowell A. Keig Kelly Hart & Hallman Barbara Jane Lipscomb Alice and Jack London Tonia Lucio Jessica Mangrum Judge Catherine Mauzy Dudley D. McCalla Scott McCown & Maura Powers Jo Ann Merica Susan J. Miller Minton, Burton, Bassett & Collins Amy E. Mitchell Kevin S. Mullen Carly Gallagher MurrayKaren Neely Brian & Laura O’Toole Joseph C. Parker, Jr. Judge David & Diana Phillips Hon. Velva L. Price Reed Claymon Meeker & Hargett Beverly G. Reeves Pete Reid Richards Rodriquez & Skeith Deborah Lynn Richardson Ruffner Schoenbaum Peter RuggeroSara Saltmarsh Gregory P. Sapire Jane Sarosdy Dean A. Schaffer Judge Eric Shepperd Judge Jan Soifer Judge Tim Sulak Christopher Taylor Sherine Thomas and Tom Nuckols The Troilo Law Firm Paul J. Van Osselaer Ben Vaughan William F. Warnick Jane Webre and David Plaut David P. Whittlesey Kennon L. Wooten Senior Judge Stephen Yelenosky

INDIVIDUAL DONORSJoseph M. Abraham Richard H. Anton Christine Henry Andresen Kay Andrews Patrice ArnoldAustin Bar ADR SectionAustin Bar Animal Law Section Austin Bar Entertainment & Sports Law SectionAustin Bar Oil, Gas, & Mineral Law Section Lydia Wommack Barton Thomas O. Barton Ryan and Elliott Beck Bill Black

Heidi Bloch Zach Bowman Justice Jeff Boyd Geoffrey Brow Judge Darlene Byrne Randy C. Cain Capital Area Paralegal Association Gerald C. Carruth Lona Chastain Fleur A. Christensen Keith and Lindsey Cohan Suzanne Newell Dalton Joe Daly DeDe Church & Associates Drake Law Rosane Easton Gloria Leal EhrieChris Elliot Benjamin Evans Sara Foskitt & Dave FloydHelen Foster Mark Foster Jennifer S. Freel Philip C. Friday, Jr. Judge Raul Arturo Gonzalez Ron Greening Judge Andy Hathcock Clarke HeidrickJim Hemphill Gina Rae Hogan-Wyatt Heather Jones Holmes Nina Hess Hsu Candace Hunter D’Ann Johnson Kenton D. Johnson Woodie JonesMary Kenney Meghan KempfPete KennedyDoug Kilday William KochLaw Office of Kelley Dwyer Law Office of David Goodman Law Office of Tim Whitten Judge Betsy Figer Lambeth Hope LochridgeBill LockeJudge Aurora Martinez-JonesJohn McFarlandJohn J. MiglNicole Miller Emily Morris W. Michael Murray Todd Nickle Sandra R. Nicolas Marilyn PooleMatt Powers Cynthia O’Keefe Justice Bob Pemberton Richard Peña Ashley Presson Morris W. Price, Jr.Sandoval Family Law Michael Quirke Abby & Chris RyanPete Schenkkan Christyne E Harris Schultz Pam and Jack Sigman Bea Ann Smith Cassie B. Stinson Amanda G. Taylor Justice Gisela D. Triana Waller Landsden Dortch & Davis

AUSTINLAWYERAL AL


Celebrating a Job Well DoneEnd-of-Year Reception Held for Austin Bar and AYLA Boards

M embers of the boards of directors for the Austin Bar Association

and the Austin Young Lawyers Association celebrated the end of another successful bar year on May 29, 2019 at the Austin Club. The event was the culmination of the leadership of Austin Bar Presi-dent Adam Schramek and AYLA President Jorge Padilla along with several members of their respective boards, whose terms expired on June 30, 2019.

The event provided the opportu-nity to give two special awards to outstanding members of the legal community. Schramek presented the Regina Rogoff Award to Leslie Hill, chief counsel of the Travis County Office of Child Representa-tion and newly-elected member of the Austin Bar Board of Directors. The Regina Rogoff Award is presented annually and recognizes outstanding public sector service as a tribute to the career and achieve-

ments of Regina Rogoff, former executive director of Legal Aid of Central Texas. Kennon Wooten pre-sented the Professionalism Award to Former Justice Bea Ann Smith. The Professionalism Award is given annually in partnership with the Texas Center for Legal Ethics and honors an Austin attorney who best exemplifies, by conduct and charac-ter, truly professional traits, whom others in the Bar seek to emulate, and whom all in the Bar admire.

In addition, each outgoing pres-ident was given the opportunity to

recognize and honor some of their outstanding board members and committee chairs.

Padilla presented Rudy Metayer with the Outstanding Young Lawyer Award, Emily Morris received the Mentor Award, Amber Haney won the Liberty Bell Award, and Jennifer Hopgood and Erin Bennett both received Outstanding Committee Chair awards, with the President’s Award of Merit going to AYLA President-Elect Sandy Bayne.

Bayne recognized Padilla for his year of service as president.

Schramek presented Blair Dan-cy with the Outstanding Director Award, Amanda Arriaga with the Outstanding Committee Chair Award, and Austin Kaplan and Amanda Taylor with President’s Awards.

Austin Bar President-Elect Todd Smith presented Schramek with a plaque and thanked him for his service and leadership as president this year.

New board members and offi-cers for both organizations took office July 1, 2019.

AUSTINLAWYERAL AL

ABOVE LEFT: Kennon Wooten presented Former Justice Bea Ann Smith with the Professionalism Award. ABOVE MIDDLE:

Adam Schramek presented Leslie Hill with the Regina Rogoff Award. ABOVE RIGHT: Members enjoy a celebratory reception.

BRIEFS


NEW MEMBERS

The Austin Bar welcomes the following new members:

Jenny Forgey

Jamie Giron

Steven Haspel

Katherine Oncken

Andrew Snyder

Harriet WessellAWARDS

� Locke Lord partner Susan Kidwell received the Pro Bono Attorney Award from the Travis County Women Lawyers’ Associa-tion and the Foundation.

� Ruffner Schoenbaum was a finalist for the Rising Star award as part of the fourth annual Austin Woman’s Way Business Awards by Austin Woman Magazine. The firm was selected for recognition from over 300 nominees. Founding partners, Eleanor Ruffner and Lauren Schoenbaum, lead their team of litigators and transactional attorneys.

� Congratulations to Richard Suttle, a partner at Armbrust & Brown, for winning the Austin Business Journal’s 2019 W. Neal Kocurek Commercial Real Estate Special Achievement Award.

� Butler Snow is pleased to announce that Amanda Taylor won the Litigation Appellate At-torney Award from Travis County Women Lawyers’ Association and Foundation.

NEW TO THE OFFICE

� The Snell Law Firm wel-comes Melissa White to the firm. As a senior attorney, she will focus on business disputes and civil litigation matters.

� Thomas A. Forbes has joined the office of Butler Snow in Austin. Forbes focuses his practice on government affairs, regulatory matters, and business transactions.

ABOVE: Forbes, Kidwell, Ruffner, Schoenbaum, Suttle

ABOVE: Taylor, White

100 Years of Women Suffrage in TexasWe’ve Come a Long Way, but We Still Must Fight for Full Equality BY JENNIFER HOPGOOD

O n June 28, 1919, the Texas Senate approved the 19th Amendment to the

Constitution of the United States, and Texas became the ninth state in the country to pass legislation guaranteeing the right of women to vote. Although 1919 marked a successful culmination of decades of effort to achieve voting equality for women, the last hundred years have been marked by inconsistent advances for all women and in im-portant areas such as equal pay.

Women Suffrage in Texas

The fight for women suffrage in Texas largely paralleled the suffragist movement in the United States in general. In 1875, the Su-preme Court in Minor v. Happer-sett, 88 U.S. (21 Wall.) 162, held that the U.S. Constitution did not grant anyone, specifically a female citizen of the state of Missouri, a right to vote even when a state law granted a right to vote to certain other classes of citizens. The Supreme Court reasoned that the Privileges or Immunities Clause of the 14th Amendment did not explicitly give citizens an affir-mative right to vote. Despite the Court’s opinion in Minor, states and territories had begun to pass

laws ensuring the right of women to vote. In 1869, Wyoming was the first territory or state to codify in its constitution female suffrage.

Conversely in Texas, the idea of franchise being conferred on wom-en was unsuccessfully raised during the Constitutional Convention of 1868-69 as well as subsequent legislative sessions in the late 1800s to early 1900s. Women formed suffrage clubs in Texas, notably in Austin in 1908 and in San Antonio in 1912 by Mary Eleanor Bracken-ridge. In 1913, the first statewide suffrage organization, the Texas Woman Suffrage Association, met in San Antonio and renewed the fight to achieve women suffrage. Women faced age-old arguments—custom dictated that the govern-ment sphere be reserved for men or that a women’s proper place was in the home tending to children. Anti-suffrage literature from the time shows the antiquated views espoused to undercut efforts to achieve voting rights for women. To counter these claims, women engaged in well-coordinated petitioning of politicians, arguing that enfranchisement would help to achieve better schools, public health, and a generally improved life for all citizens.

Against the backdrop of World War I, newly reorganized and nationwide suffrage movements began to achieve success. Efforts by women in Texas began to pay off. In the 1917 legislative session, resolutions to enfranchise women were introduced; however, then-governor James E. Ferguson vigorously opposed women’s suffrage. After Ferguson was im-peached and removed from office in the summer of 1917, his succes-sor, Lieutenant Governor William P. Hobby, proved friendly toward women’s suffrage. In March 1918, in a called session, Charles B. Metcalfe of San Angelo introduced a bill to permit women to vote in primaries. Governor Hobby signed the bill into law, and in 17 days

386,000 women registered to vote in the Democratic primary held in July 1918. In January 1919, Gover-nor Hobby recommended that the Texas Constitution be amended to extend full suffrage to women. The amendment was defeated, in large part because a companion amendment would have imposed a citizenship requirement for foreign-born persons.

After the first defeat in Texas, in June 1919 the federal women suf-frage amendment was submitted to the states for ratification as the 19th Amendment, which states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States

or by any State on account of sex.” The Texas Legislature convened in special session on June 23, 1919, with the House adopting a reso-lution to ratify the amendment, with Senate approval on June 28. Notably, Texas was the first southern state to ratify the 19th Amendment. With the ratification by Tennessee on August 18, 1920, the 19th Amendment became part of the Constitution and nationwide women now had the right to vote.

The Ongoing Struggle to Achieve the Right to Vote and Sit on Juries

Within the larger context of voting, women of color were,

ABOVE: A group of

Texas women, led

by three dressed in

white, marched in a

suffrage parade under

the Texas banner in

Washington, D.C. in

April 1913.

RIGHT: Anti-suffrage

literature prior to

the ratification of the

19th Amendment in

1920.

Image credit: Texas

State Library and

Archives Commission


Jennifer L. Hopgood is an Assistant County Attorney in the Travis County Attorney’s Office and a board member of the Travis County Women Lawyers’ Association. Any views expressed in this article are solely the author’s personal opinions.

like their male brethren, denied the right to vote through various means such as literacy tests, poll taxes, and exclusion from primary elections. In Texas, African-Americans were denied the right to participate in primary elections of the Democratic Party. Finally, in 1944 the Supreme Court overturned this practice in Smith v. Allwright, 321 U.S. 649 (1944), holding that the restricted primary denied Smith, an African-American dentist who resided in Houston, of his equal protection and that the State of Texas had unconstitutionally al-lowed a political party to discrim-inate on the basis of race. Not until the passage of the Voting Rights Act of 1965 did the federal government act to ensure that all citizens, regardless of color, were guaranteed equal access to vote.

In the context of juries, the right to vote did not automatically extend to the right to serve as a juror. In 1961, the Supreme Court, in Hoyt v. Florida, 368 U.S. 57, held that the state’s “opt-in” policy for female jurors was constitutional, reasoning that universal exemption of women

from jury service was constitu-tional because jury service was a burden to women, rather than a responsibility or privilege. And not until 1979 did the Supreme Court reverse Hoyt, holding that “opt-in” policies were unconsti-tutional. Duren v. Missouri, 439 U.S. 357 (1979).

Ongoing Issues of Inequality: Parity in Pay

Although women have achieved great advancement in the ability to pursue careers, such issues as pay inequality continue today. In 1872, the Supreme Court in Brad-well v. Illinois held that a woman who graduated from law school had no right to inclusion in a state bar. Myra Bradwell challenged the state bar’s refusal to allow her to practice law. The concurring opinion stated that, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” 83 U.S.130, 141 (Bradley, J., concur-

ring). Fortunately, by 1925 such antiquated notions of gender had faded away. In that year, Texas Governor Pat Neff appointed three female attorneys to a special Texas Supreme Court for five months to hear the appeal of a fraternal organization.

While women now comprise half of all law school admissions, women in general still earn only 76 percent of the amounts earned by their male counter-parts, despite assuming equal job duties and responsibilities. And African-American women earn only 64 percent and Hispanic women 56 percent of each dollar earned by white, non-Hispanic men. Although the U.S. Con-gress passed the Equal Pay Act in 1963, in Texas the Texas Equal Pay Act applies only to female public-sector employees. As a result, currently in Texas private-sector female workers employed by a business with 14 or less employees lack protection from pay discrimination. Reme-dies such as ratifying the Equal Rights Amendment or passing a state law that would ensure equal pay for all private-sector female

employees would help achieve pay parity for all Texas women.

Looking Ahead

Certainly, in this centennial year, we have much to celebrate in women gaining the right to vote in Texas in June 1919. However, the right to vote did not automat-ically confer rights on all women, particularly for women of color, or ensure such basic rights as the right to serve on a jury of one’s peers—a right not guaranteed until as recently as 40 years ago. Professionally, although women have made great strides in achiev-ing equality, equal pay for equal work remains an unrealized, yet achievable, goal. We all have work to do to guarantee that women—our sisters, mothers, wives, and daughters—earn the same as their male counterparts.

AUSTINLAWYERAL AL

Sources:Handbook of Texas Online, A. Elizabeth Taylor, “WOMAN SUFFRAGE,” accessed June 01, 2019, http://www.tshaonline.org/handbook/online/articles/viw01.

Rough Road to Justice: The Journey of Women Lawyers in Texas, Betty T. Chapman, Texas Bar Books (2008).

2016-PRESENT

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS


OPENING STATEMENT

The Two Types of AppositivesRestrictive and Nonrestrictive

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

A n appositive is a noun or noun phrase that restates or renames another noun. Here,

the noun Robin Lang restates or renames defendant:• The defendant, Robin Lang,

did not hire a lawyer.

But properly punctuating appositives depends on the type of appositive, and the type de-pends on whether the appositive is essential or additional to the meaning of the original noun.

The first type (essential) is called a restrictive appositive. This type of appositive renames or restates the noun in a way that is essential to a full under-standing of the sentence. The appositive defines or restricts the original noun in a way that differentiates it from other nouns of that type. For example:• The politician Jordan Lopez

gave the commencement address.

This sentence implies that there are multiple politicians and that the one who gave the com-mencement address was Jordan Lopez. That makes sense. If the appositive were set off with com-mas, it would create confusing implications:• The politician, Jordan Lopez,

gave the commencement address.

This sentence implies that there is only one politician (in the world?) or that the politician is being differentiated from other nonpoliticians in some way. The commas are unnecessary. Anoth-er example using my own name:• The dean asked Wayne Schiess

the legal-writing teacher to edit the manuscript.

This sentence implies that there are multiple people named Wayne Schiess and that the

dean asked one of those Wayne Schiesses—the one who is a legal-writing teacher—to edit the manuscript. Thus, the sentence doesn’t really make sense and should be punctuated like this:• The dean asked Wayne Schiess,

the legal-writing teacher, to edit the manuscript.

That example is a nonrestric-tive appositive. Nonrestrictive (also called “nonessential”) appositives present what might be considered additional informa-tion, offered as extra or “by the way.” You’d still have a sensible sentence without the appositive. Returning to our first example:• The defendant, Robin Lang,

did not hire a lawyer.• The defendant [, whose name

is Robin Lang, by the way,] did not hire a lawyer.

• The defendant did not hire a lawyer.

Besides a pair of commas, you have other punctuation options for nonrestrictive appositives. If the restating phrase comes at the end of the sentence, use a comma and a period:• The party who did not hire

a lawyer was the defendant, Robin Lang.

And you may set off appositives with a pair of parentheses, a pair of dashes, or a dash and a period:• The defendant (Robin Lang)

did not hire a lawyer.• The defendant—Robin Lang—

did not hire a lawyer.• The party who did not hire

a lawyer was the defendant— Robin Lang.

The most common mistake I see in using nonrestrictive appositives is failing to include the second comma:• Wrong: The defendant, Robin

Lang did not hire a lawyer.• Wrong: Equitable adoption,

a common-law doctrine may apply even in the absence of a court order.

The first example needs a com-ma after Lang; the second needs one after doctrine.

The differences between restrictive and nonrestrictive appositives come up occasionally in legal writing. If there is only one party on a particular side (one buyer, one defendant, one appellee), then the appositive is likely to be nonrestrictive:• The buyer, National Insurance,

retained its trial counsel to handle the transaction.

But if there are multiple parties on one side, a restrictive appositive may be appropriate (depending on the context).• The respondent Taylor Mura

refused to cooperate with the respondent Media Group, LLC.

And of course, in legal writing, we sometimes omit the article the before party appellations:• Respondent Taylor Mura

refused to cooperate with re-spondent Media Group, LLC.

Properly punctuating apposi-tives is a fundamental and basic skill in legal writing. It’s some-thing careful writers do well.

AUSTINLAWYERAL AL


Properly punctuating appositives is a fundamental and basic skill in legal writing.

The “Mentoring A Student” ProgramPresented by the Robert W. Calvert Inn of Court

T he Robert W. Calvert Inn of Court in Austin continues its commitment to the

“Mentoring A Student” (MAS) program at Travis High School. Seventy-seven percent of Travis High School students are from low-income families, and 96 per-cent are minorities. Founded by Retired Judge Orlinda Naranjo, MAS engages Inn members with students in the school’s criminal justice class. MAS participants are interested in a wide variety of careers in the justice system, ranging from law enforcement to attorneys and judges. Inn members meet monthly with the class. This year, the class discussed voting rights, bias, immigration, and other skills. At least one student was able to use these new skills at home. She wrote, “Thank you for all the time you have spent with us, and I want to thank you for that little blue book. I have used it to

teach my mom legal concepts she didn’t know.”

The year culminated in a dating violence mock trial held at the Gardner Betts Juvenile Justice Center. Travis County Justice of the Peace Raul Gonza-les presided, with middle school students serving as jurors. With attorney coaches, student lawyers presented their cases, examined witnesses, made objections, and handled evidence. A student wrote, “Thank you for allowing

me into your court room and taking the time to share your knowledge with me. I have not been able to be around many lawyers. So your presence meant more to me than you know. You all have inspired me to continue my path in law.”

The MAS program celebrated

its sixth year in 2019. Each year, Inn members have funded schol-arships for seniors in the MAS class. This year, the Inn raised a record $3,000, which funded three $1,000 scholarships for students. Each recipient will be the first person in her family to attend college.

AUSTINLAWYERAL AL

Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton


“You all have inspired me to continue my path in law.” —MAS Program Participant

ABOVE LEFT: Proud scholarship winners. ABOVE RIGHT: Volunteer attorneys help student lawyers prepare for trial.

THIRD COURT OF APPEALS CIVIL UPDATE

THE LITIGATION, CO-COUNSEL TRIAL TEAM FOR SOLO AND SMALL FIRM PRACTITIONERS

Meghan Alexander | David M. Gott f r ied | Michael Jurgens | Tara Gi l lespie

Negot iate With Conf idence - Our Tr ia l Team Has Your Back


Laurie Ratliff, a former staff attorney

with the Third Court of Appeals, is board

certified in civil appellate law by the

Texas Board of Legal Specialization and

an owner at Laurie Ratliff LLC.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during May 2019. The summaries are an over-view; please review the entire opinions. Subsequent histo-ries are current as of June 3, 2019.

FAMILY LAW: Court affirms constructive fraud finding for wasting community estate. Mason v. Mason, No. 03-17-00546-CV (Tex. App.—Austin May 3, 2019, no pet. h.) (mem. op.). Wife alleged constructive fraud and waste of community assets after discovering husband spent over $750,000 at strip clubs and gambling during the marriage. Husband’s LLC paid the bulk of these expenses. The trial court treated the expenses as distributions from the LLC and reconstituted the community estate by $750,000. The court of appeals observed that an LLC’s property is neither community nor separate, but that distribu-tions from an LLC are commu-nity even when the membership interest in the company is one spouse’s separate property. That husband paid the expenses with an LLC credit card did not make them legitimate business expens-es. The court held that the trial court did not abuse its discretion in finding constructive fraud and

reconstituting the community estate. The court affirmed.

TRIAL PROCEDURE: Court reverses on failure to submit an affirmative defense question to jury.Neal v. Guidry, No. 03-17-00525-CV (Tex. App.—Austin May 15, 2019, no pet. h.) (mem. op.). At the informal charge conference in this breach-of-contract case, Neal tendered a fraud-in-induce-ment question. The court denied the question and ordered that formal charge objections would be made after the jury began deliberating. At the formal charge conference, Neal again tendered the fraud-in-inducement question, which the court denied. The jury awarded Guidry $50,000. On appeal, Guidry argued that Neal failed to preserve the charge error. The court of appeals noted that a party must timely make the trial court aware of the complaint and obtain a ruling. According to the court, charge error preservation should take a common-sense approach. The court held that a party compelled by a trial court to make charge objections after the charge is read to the jury does not waive objections. The court reversed and remanded for a new trial.

ARBITRATION: Court enforces arbitration clause against non-signatory. Toll Dallas Tx, LLC v. Dusing,

No. 03-18-00099-CV (Tex. App.—Austin May 16, 2019, no pet. h.) (mem. op.). Dusing, the subse-quent purchaser of a home, sued the builder for negligence and DTPA violations for water dam-age. Builder’s original motion to compel arbitration was denied. Dusing later added another defendant, Toll Dallas. Toll Dallas sought to compel arbitration after discovering that the original homeowner had assigned Dusing the warranty and that Dusing had made a claim under the warranty. The trial court denied the motion. The court of appeals concluded that Dusing, although a nonparty to the arbitration agreement, could be compelled to arbitrate under the doctrine of equitable estoppel for obtaining direct benefits from the contract. Dusing made claims under the warranty and obtained repairs. Thus, Dusing was bound by the contract’s arbitration clause. The court reversed and remanded.

ADMINISTRATIVE LAW: Court upholds Medical Board’s expert’s immunity from liability. Zawislak v. Moskow, No. 03-18-00280-CV (Tex. App.—Austin May 22, 2019, no pet. h.) (mem. op.). The medical board disciplined Zawislak, using Moskow as its expert. Zawislak sued Moskow for negligence for Moskow’s statements at the disciplinary proceeding. Moskow sought dismissal under Rule 91a, con-

tending that his statements were protected by absolute immunity. The trial court granted the mo-tion and awarded attorney’s fees. The court of appeals noted that Occupations Code § 160.010(e) provides that an expert for the board is immune from suit for his recommendations or findings if they are made without fraud or malice. Zawislak raised for the first time on appeal that Mos-kow’s statements were fraudu-lent. The court’s review of a Rule 91a dismissal, however, is limited to the live pleadings and exhibits. Thus, on the pleadings, Moskow was immune from suit. The court affirmed.

AUSTINLAWYERAL AL

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THIRD COURT OF APPEALS CRIMINAL UPDATE

FOR LEASE1209 Nueces

Mark Greiner & Ben Fuller • 512-474-2400

capitolwestaustin.com


Zak Hall is a staff attorney for the Third

Court of Appeals. The summaries repre-

sent the views of the author alone and do

not reflect the views of the court or any

of the individual Justices on the court.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals during December 2018. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 3, 2019.

EXPERT TESTIMONY ON DOMESTIC VIOLENCE: Trial court did not abuse its discretion by admitting expert testimony regarding “the dynamics of domestic violence.” Runels v. State, No. 03-18-00036-CR (Tex. App.—Austin Dec. 6, 2018, pet. ref’d) (mem. op., not designated for publica-tion). Runels was charged with assaulting his girlfriend. During

trial, a victim services counselor for the Austin Police Department testified regarding the “cycle of violence” in abusive relationships and the tactics that abusers use to control their victims, which the counselor termed “the power and control wheel.” Runels objected to the counselor’s qualifications and to the reliability and relevance of her testimony. The trial court overruled the objections, and the appellate court affirmed. The court explained that the counselor had extensive experience with domestic-violence cases, that her testimony was based on “con-cepts” and studies that were “de-veloped decades ago,” and that her testimony would aid the jury in understanding the behavior of domestic-violence victims.

DISTINCTION BETWEEN POLICE DETENTIONS AND CONSENSUAL ENCOUNTERS: Police-citizen encounter was a consensual encounter, not a detention. Wright v. State, No. 03-17-00158-CR (Tex. App.—Austin Dec. 18, 2018, no pet.) (mem. op., not designated for publication). The defendant was convicted of forgery based on evidence that was dis-covered in her car following police questioning. Wright sought to sup-press the evidence, asserting that she had been unlawfully detained by the officers. The trial court de-nied the motion to suppress, and the appellate court affirmed. The court focused its analysis on the circumstances of the interaction

between Wright and the officers. Wright had pulled her vehicle into a hotel parking lot that was being monitored by police officers for suspected narcotics activity. Two officers had approached Wright’s car on foot, one officer walking behind the other, and one had moved to the driver’s side to inter-act with Wright after she stopped the car. They proceeded to ques-tion her as to “who she was there to see and what she was doing there.” Although the officers had flashlights, they used the flash-lights only “for illumination pur-poses” and did not shine the lights directly at or into Wright’s face. Moreover, there was no evidence that either officer had used any type of “authoritative signal, vocal tone, or gesture” when speaking with Wright. Also, the officers had approached Wright’s vehicle from behind, and there was nothing in the record to suggest that the of-ficers had restricted her “forward movement.” Finally, the manner in which the officers questioned Wright did not implicate her Fourth Amendment rights, as they sought “simply to ascertain her reason for being at the hotel and to determine if she was associated with the target room they were monitoring.” In sum, the record supported the trial court’s finding that the initial interaction between Wright and the officers was a consensual encounter.

LESSER-INCLUDED OFFENSES: Theft of a firearm was not, in this case, a lesser-in-

cluded offense of burglary. DeLeon v. State, No. 03-18-00268-CR (Tex. App.—Austin Dec. 28, 2018, pet. ref’d) (op., designated for publication). DeLeon was charged with burglary of a habitation. Near the end of trial, the State requested the inclusion of an instruction allowing the jury to find DeLeon guilty of the lesser-included offense of theft of a firearm. The trial court included the instruction over DeLeon’s objection. The jury found DeLeon not guilty of burglary but guilty of theft of a firearm. The appellate court reversed and rendered a judgment of acquittal. The court concluded that “[b]ecause the val-ue or nature of the stolen property is an essential element of the of-fense of theft, an indictment that does not allege the value or nature of the stolen property is substan-tively defective as to a charge of theft, even if the indictment is not defective as to a greater offense, such as burglary.” In this case, the indictment failed to allege that the stolen property was a firearm. Thus, theft of a firearm was not a lesser-included offense of burglary. “Importantly,” the court noted, “we do not hold today that theft may never be a lesser-included offense of burglary, only that it is not a lesser-included offense in this case because the burglary indictment did not include all the elements of theft or facts from which all those elements could be deduced.”

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Hon. Lee Yeakel Inn of Court Presents Successful CLE ProgramsIntellectual Property Inn Puts on Presentations for Members

T he Honorable Lee Yeakel IP Inn of Court held its fourth and fifth CLE-approved meetings

on January 17 and February 21, respectively, at The Headliner’s Club in Austin. The program for the January meeting included pre-sentations on music licensing and copyright issues presented by stu-dent member Kyle Bailey, Melanie McCool of Mood Media, Wesley Lewis of Haynes and Boone, and Scott Cole of McKool Smith. Bai-ley discussed some basic concepts of copyright law and gave an over-view of the Music Modernization Act (“MMA”). McCool shared her experience with lobbying efforts while Congress was considering the MMA, including issues that led to the MMA and the changes it brought about. Lewis presented the standard for determining when a copyright in a musical work has been infringed—including a discus-sion of two cases, Williams v. Gaye and Skidmore v. Led Zeppelin.

Cole relayed his experience litigat-ing a contract dispute involving underlying copyrights in musical works between Quincy Jones and the estate of Michael Jackson (Quincy Jones v. MJJP, Inc.). The program concluded with Master of the Bench Karl Bayer moder-ating a panel comprised of the presenters. The panel talked about various copyright issues and also answered a number of questions from the audience.

Another team (pictured) put on a program for the February meet-ing, called, “Highway to the Dan-ger Zone: A Romantic Comedy of Love and Ethics.” The program included four ethics-based legal presentations paired with four vignettes inspired by romantic comedies, depicting the ethical issues detailed in the legal presen-tations—all inspired by the movie “Top Gun.” Topping it all off was a live musical performance. Specific issues discussed included the distinction between federal

and state approaches to the rules of professional behavior, the obli-gation of confidentiality, conflicts of interest, ex parte communica-tions, the duty of candor, the duty to report misconduct, the chal-lenge presented by alcohol abuse within the profession, and the features of approved peer-assis-tance programs that make them uniquely effective. The overarch-

ing message of the presentation was to remind attorneys that the rules of professional conduct are a starting point for ethical behavior, not an ending point, and that an attorney’s conscience may well demand more than the rules. Special thanks to Veritext for videography services and Alice in Pearls for assistance with the live musical performance.

AUSTINLAWYERAL AL

(front row, from left): Kat Li, Sheila Kadura, Judge Lee Yeakel, Bill Schuurman, Jason

Boulette, Ken Prol, David Weaver, Beth Ozmun, Michele Connors, Sarah Holland, Katie

Carmona and Nick Schuneman on guitar. (back row, from left): Eman Sojoodi, Trey

Hebert, Jerry Suva, Chad Anson, and guest drummer, Travis Sparks

FEDERAL CRIMINAL COURT NEWS

Former District Judgepatrickkeel.com


Three Strikes, or One Really Bad Strike, and You’re Out (of Society)BY DAN DWORIN

T his column has discussed federal sentencing, particularly the recent reforms

codified in the First Chance Act of 2019,1 particularly the curtailment of some mandatory minimum sentences for drug offenders. And although the Texas Legislature has recently increased funding for community supervision in an effort to reduce the prison popu-lation, Texas state sentencing law continues to require mandatory minimum prison sentences for a fairly wide variety of cases.

The most commonly used enhancement is the “three strikes” provision, which requires a mandatory minimum sentence of 25 years for a defendant convicted of a third-degree or higher felony who has previously been convicted of two felonies in

succession and sentenced to pris-on twice.2 As in most mandatory minimum scenarios, this provides significant leverage to a prosecu-tor who could, as part of a plea agreement, decide to waive the enhancement. Although the de-fendant’s criminal history would ordinarily be deemed inadmissi-ble at trial, the decision to have a trial, knowing that the potential punishment could be far more than what is offered in a plea

agreement, would persuade all but the most adamant defendants to waive their right to a trial.

There are also mandatory minimum sentences for certain offenses involving sexual abuse or trafficking of children,3 offenses for which little jury sympathy would be expected for a convicted defendant, for obvious reasons. Again, a prosecutor could agree to allow the defendant to plead guilty to a lesser offense to avoid the mandatory minimum as part of a negotiated resolution.

Sentencing reformers probably weren’t thinking about repeat offenders and those convicted of continuous sexual abuse against children (repeated commissions of the same offense in a 12-month period).4 However, not all mandatory minimum sentences under current Texas law require repeated commission of crime or harm to a specific victim.

For example, a non-violent drug offender who possesses with intent to distribute 400 grams or more of a controlled substance such as cocaine, methamphet-amine, or heroin faces a manda-tory minimum term of 15 years.5 Even more surprising, perhaps, is the 15-year mandatory minimum sentence for possession of more than 4,000 “abuse units” of the hallucinogen LSD.6

Although 4,000 “abuse units” sounds like a mountain of “acid,” if the drug is in liquid form (as it often is before being placed on some kind of edible medium), an “abuse unit’ is defined as 40 micrograms.7 A microgram is

1 millionth of a gram. Thus, a nearly undetectable amount of liquid LSD can result in a severe prison sentence.

Long prison sentences for non-violent offenders seem to have fallen out of fashion somewhat, according to the popular media. But unless and until the Texas Legislature eliminates them for first-time drug offenses, prosecuto-rial discretion will still determine, in large part, who spends signif-icant time in prison for offenses not involving acts of violence.

AUSTINLAWYERAL AL

Footnotes1. Austin Lawyer, February and March

2019 issues.

2. Texas Penal Code § 12.42(d).

3. Texas Penal Code § 21.02(h); § 20A.03(e).

4. For example, a defendant convicted of an offense involving sexual abuse of a child who has previously been convicted or placed on deferred adjudication community supervision for a similar offense faces a mandatory life sentence. Texas Penal Code § 12.32(c).

5. Texas Health & Safety Code § 481.112(f).

6. Id. § 481.1121(b)(4).

7. Id. § 481.002(50)(B).

Unless and until the Texas Legislature eliminates long prison sentences for non-violent offenders on first-time drug offenses, prosecutorial discretion will still determine, in large part, who spends significant time in prison.

D an Dworin is a criminal defense attor-

ney licensed in the Western District of

Texas since 1997. He is board certified in

criminal law by the Texas Board of Legal

Specialization. dworinlaw.com.


American Inns of Court and American Board of Trial Advocates Hold Joint Trial Academy

T he American Inns of Court and Amer-ican Board of Trial Advocates (ABOTA)

held their joint Trial Academy at the UT School of Law in Austin over two consecutive weekends in late May and early June. This program is designed to give Inn of Court members the opportu-nity to learn trial strategies and techniques from experienced ABOTA members. Federal Judge Lee Yeakel delivered the opening remarks, and touted the benefits of the program and the skills the students would learn.

During the first weekend, stu-dents received instruction from the ABOTA member faculty on each aspect of trial. They were then able to practice their skills in everything from opening state-ments to closing arguments. The performances were videotaped, giving students the opportunity to review their performances

while receiving a critique from a faculty member. The critique allowed students the opportunity to adjust their performances for the mock trial held the following week.

In the second weekend, students participated in a mock trial. This allowed them to put the skills they learned, and the feedback they received, to good use. When the trial concluded, students viewed the jury deliber-

ations live, getting an inside look at the jury box and how their skills affected the outcome of the case.

This two-weekend program allowed the students to hear feed-back not once, but twice, from leading trial attorneys. The feed-back from the students was clear, with one student calling the program, “the first trial training I have ever had.” The program gives attorneys with limited trial

experience an opportunity to learn from premier trial lawyers.

The Trial Academy is available to any Inn of Court or ABOTA chapter and is designed to be a collaborative effort between these two organizations. The ma-terials can be found on both the national American Inns of Court and national ABOTA websites.

AUSTINLAWYERAL AL

Participants and faculty of the first Trial Academy organized by the Austin Inns of Court and Austin chapter of ABOTA.

ANDREW H. WARE, JDREALTOR®

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Grant Recipients and Award Winners Honored by Travis County Women Lawyers’ Association and Foundation

O n May 17, 2019, the Travis County Women Lawyers’ Association/Tra-

vis County Women Lawyers’ Foundation (TCWLA/TCWLF) Annual Grants and Awards Lun-cheon was held at the Fairmont Hotel. TCWLF awarded $50,000 in grants to local nonprofits providing direct legal services to women and children. The 2019 grant recipients were: American Gateways; Asian Family Support Services of Austin; the Austin Bar’s CANLAW Clinic; Catholic Charities of Central Texas; Center for Child Protection; Court Appointed Special Advocates (CASA) of Travis County; Jane’s Due Process; Texas Fair Defense Project; Texas Rio Grande Legal Aid, Inc.; and Volunteer Legal Services of Central Texas.

Judge Elsa Alcala, formerly of the Texas Court of Criminal Ap-peals, gave the keynote address,

in which she told of the impor-tance of speaking up for what is right. Judge Alcala was a frequent dissenter on the Court, question-ing whether the criminal justice system was functioning properly, in particular with regard to the imposition of the death penalty on the intellectually disabled. Judge Alcala’s concerns were later validated by the United States Supreme Court in its decision in Moore v. Texas.

Adela Uchida of KEYE News spoke of her experience as an ad-vocate for immigrants who escaped the civil war in Syria in search of a better life in Austin. Her advocacy allowed a family to have continuity in housing and schools despite the bureaucracy’s attempt to uproot them from their new home.

The following attorney awards were given to recognize achieve-ments of women attorneys in the community: • Public Interest: Beth Stevens,

Texas Civil Rights Project;

• Government Service: Leela Fireside, City of Austin;

• Pro Bono: Susan Allison Kidwell, Locke Lord;

• Contribution to Minority Community: Daniella Lyttle, The Lyttle Law Firm;

• Criminal Justice: Darla D. Davis, Attorney at Law;

• Corporate/Transactional: Erin Fonté, Hunton Andrews Kurth;

• Litigation/Appellate: Amanda Taylor, Butler Snow;

• Advancement of Women’s Interests: Jessie Neufeld, Farm Credit Bank of Texas;

• Outstanding Achievement: Justice Eva Guzman, Supreme

Court of Texas; and • Outstanding Firm: The Travis

County Attorney’s Office.

TCWLA/TCWLF would like to thank all of the sponsors who made the annual luncheon possible. For more information about the Travis County Women Lawyers’ Association or Founda-tion, please visit tcwla.org.

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(from left) TCWLA President Tracy McCreight, keynote speaker

Judge Elsa Alcala, guest speaker Adela Uchida, TCWLF Chair

Jessica Mangrum.

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN

SANDY BAYNE, BAYNE LAW

CAPPS LAW FIRM, PLLC


AYLA Q & A with Sandy Bayne

A YLA welcomes Sandy Bayne as president of the organization for the

2019-2020 bar year.

AYLA: Let’s start with every-one’s favorite question: Would you tell us a little about yourself?

BAYNE: I’m Persian-American, born and raised in Houston. I went to Bryn Mawr College, an all-women’s liberal arts school outside of Philadelphia, spending my junior year in Madrid, Spain. I returned to Texas for law school, and received an LLM in Health Law in 2005. I have worked in almost every sector of health care, from representing physicians in medical malpractice cases and in front of the Medical Board, working in-house for a Fortune 500 managed-care company, to in-house at Seton Family of Hospitals. I currently have a solo practice where I focus on helping clients navigate through health insurance denials and disputes, among other health care matters.

AYLA: What are some of your Austin-area favorites?

BAYNE: Running around or row-ing on Town Lake, Love Cycling, Pool Burger, Deep Eddy Cabaret, and watching independent and foreign films at the Violet Crown Theater.

AYLA: Why did you first get

involved with AYLA?

BAYNE: I was working as in-house counsel for Seton Hospitals and I did not have much interaction with other attorneys outside of Seton’s legal department. I wanted to ven-ture out and meet more attorneys in Austin. I had the privilege and opportunity to join the Austin Bar/AYLA Leadership Academy in 2013, led by Judge Karin Crump and David Courreges, and it paid off! I have learned so much from my AYLA friends and colleagues and have made long-lasting and valuable friendships.

AYLA: What are your goals for AYLA this year?

BAYNE: I want to energize our current members and get more eligible members involved with AYLA and our programs. I hope to see more lawyers join AYLA and bring fresh ideas to our orga-nization. I also want to look at the growing needs in our community and refocus who we can best ben-efit through our fundraisers and our monthly Day of Service.

AYLA: What do you think are the biggest challenges facing to-day’s young lawyers in Austin?

BAYNE: Getting their hands dirty with real experience, be it leading a mediation, face-time with clients, or getting into the courtroom. I recommend volunteering with VLS or serving as an ad litem to help those in need while getting hands-on experience.

AYLA: If you could impart one piece of wisdom on the first-year lawyer and make it stick, what would it be?

BAYNE: Find a mentor who you respect and reach out to them for coffee or lunch and keep that re-lationship going. I have had many

mentors who have been extremely generous with their time and counsel. I am so grateful that they have all become very close friends (you know who you are!). You can learn so much—not only about the practice of law, but lifestyle tips and intricacies that you don’t learn in law school. So send out that email to the speaker who inspired you at the last CLE!

AYLA: What has been your most rewarding AYLA experi-ence so far?

BAYNE: Easy! Getting to know all of the other great members.

I have met so many amazing friends. Chairing AYLA’s Runway for Justice committee for three years has also been rewarding. It’s great to see so many busy attorneys and judges celebrate and kick back while cheering on lawyers who are modeling (clearly outside their comfort zones) for such a good cause.

AYLA: What is an interesting fact about you that people prob-ably don’t know?

BAYNE: I learned to drive a stick shift from Madrid, Spain to Lis-bon, Portugal, while en route!

AUSTINLAWYERAL AL

I hope to see more lawyers join AYLA and bring fresh ideas to our organization. I also want to look at the growing needs in our community and refocus who we can best benefit through our fundraisers.

AUSTIN YOUNG LAWYERS ASSOCIATION


THURSDAY, AUGUST 22AYLA Bar Year Kick-Off PartyHilgers House, 712 W. 16th St.5:30 – 7:30 p.m.

AYLA is Here to Help

I s your practice suffering because of a personal crisis? Are you enduring tough times but don’t

know where to turn? The Per-sonal Crisis Assistance Program (PCAP) is here to help in your time of need.

PCAP was created in1996 to support Austin-area attorneys who face an immediate need for temporary financial or practice assistance because of a person-al crisis. The objective of the program, funded by the Austin Young Lawyers Association Foun-dation, is to serve as a protection for lawyers and their clients when personal emergencies harm a law-yer’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 limited grant funds of up to $1,500 to assist an attor-ney who is unable to fulfill certain practice-related financial obliga-tions because of a personal crisis.

PRACTICE-RELATED

Attorney volunteers agree to han-dle professional matters for the affected lawyer during the crisis.

To apply confidentially for financial or practice-related assistance, please contact Debbie Kelly at 512.472.0279, x105 or at [email protected]. Regardless of how overwhelm-ing 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.

AUSTINLAWYERAL AL

AYLA Member Spotlight: David XuAYLA: Tell us a little bit about yourself and your law practice.

XU: I am a born-and-raised Texan currently working as an attor-ney in the intellectual property and technology group of DLA Piper, practicing mostly patent litigation. My work usually takes place in venues across the nation including federal district courts, the International Trade Court, and the Patent Trial and Appeal Board. I utilize my technical back-ground to both defend our clients from asserted patents as well as the assertion of their own IP.

AYLA: How long have you been involved in AYLA and what’s been your best AYLA experi-ence so far?

XU: I first got involved with AYLA two years ago when I came in as the Austin Asian American Bar Association liaison to the

AYLA Board of Directors. I’ve greatly enjoyed all of my AYLA experiences, from the pro bono opportunities to the fun-filled nights of Runway for Justice. To toot my own horn a bit, my best experience has been organizing and putting on the Diversity Bar Mixers for the last two years. Get-ting all of the local affinity bars together for a night of socializing and seeing new relationships develop was extremely rewarding.

AYLA: What was your child-hood dream job?

XU: From a young age, I always wanted to be a doctor so I could help others. The plan changed course a bit during undergrad when I realized how much more school that path required. Thankfully, my law career ended up satisfying the same childhood desire to assist those in need.

AYLA: What’s your favorite moment of your career so far?

XU: Definitely when I am able to work directly with inventors to draft and obtain a patent on their work. As a technical geek, I love the experience of just spending time getting into the nitty-gritty details of an inventor’s latest creation and seeing their passion be validated.

AYLA: What are some of the things you enjoy most about living in Austin?

XU: The food scene in Austin is great, and I’ve been slowly work-ing my way through all of the best spots in my ten years here. There’s always something cool going on, whether it be SXSW, ACL, or a new art installation.

AYLA: What’s your best piece of advice for fellow young attorneys?

XU: Meet and stay in touch with as many other attorneys as you can! The practice of law is so much more diverse and varied than many young lawyers know. You never know when a chance meeting or contact will end up influencing the type of work you do for the rest of your career.

AUSTINLAWYERAL AL

You have worked hard to build your career. PCAP is here to help you get back on your feet.

UPCOMING EVENTS

PRACTICE POINTERS


An Eminent Domain PrimerBY SUE AYERS

T he recent legislative session and prolifer-ation of public works projects have caused

quite a bit of reporting on the subject of eminent domain. While a condemnation case is initiated with the filing of a petition in the courts of the county where the property is located, the usual processes for civil litigation do not initially apply. The exercise of the power of eminent domain is governed by Chapter 21 of the Texas Property Code. This is a summary of some of the fundamental steps involved in a condemnation case.

How can private entities have the power to condemn?

This power resides in the sovereign—the State of Texas. But the State of Texas has never constructed and owned all of the critical public infrastructure required by modern civil society. For over 100 years, the Texas Leg-islature has delegated the power of eminent domain to both public and private entities that construct our power lines, pipelines, high-ways, and railroads. The Legisla-ture decides, as a matter of public policy, which types of entities

and industries should possess the power to condemn because their projects fulfill a public necessity.

The condemning authority must attempt to purchase the property voluntarily.

There has always been a legal requirement that the condemnor attempt to purchase the required property rights from the landown-er voluntarily. In 2011, the Legis-lature added the definition for a “bona fide offer” to the Property Code. It has several components: • An initial offer in writing; and • A final offer in writing—made

30 or more days after the initial offer—that is at least equal to the amount of a written apprais-al by a certified appraiser.

The final offer must include: • The appraisal; • The instrument conveying the

property rights being sought; and

• The Texas Landowner Bill of Rights.

The landowner must have at least 14 days to consider the final offer before a petition is filed.1

The filing of the petition invokes the court’s administrative jurisdiction.

Chapter 21 contains a number of specific requirements for the contents of a petition. For exam-ple, the petition must state that the condemnor made a bona fide offer as defined by Chapter 21.2 The petition is filed in the County Court at Law or District Court of the county where the property is located.3 Upon the filing of a petition, the court “shall appoint three disinterested real property owners who reside in the county as special commissioners.”4 If either party exercises the right to strike one commissioner, the court shall appoint a replacement.5

No citation is prepared or served; the petition is delivered to the property owner by certified mail.6 No answer is required and

a default cannot be taken. While a defendant can request some limited information regarding his property at this stage of the case, discovery under the Rules of Civil Procedure is not permitted.7

Upon accepting the appoint-ment and taking an oath, the special commissioners “shall promptly schedule a hearing at the earliest practical time” in or-der to hear evidence and enter an award of damages.8 The parties are entitled to only 20 days’ no-tice of the special commissioners’ hearing.9 The notice of hearing can be served on the defendant, or his or her agent or attorney; proof of service should be filed before the hearing date.10

Following the special commis-sioners’ hearing, and filing of the award with the court, the con-demnor may take possession of the property and begin construc-tion if it: (1) deposits the amount of the award in the registry of the court; (2) deposits a surety bond in the amount of the award to secure any additional damages; and (3) executes a bond, approved by the court, conditioned to secure the payment of costs that may be awarded to the landowner on appeal.11

After the hearing, the parties may accept the award or file objections—and litigate.

After the special commissioners have issued their award and it has been filed with the court, the parties can either acquiesce or

can file objections. If no one files objections, the court will adopt the award as its judgment.12 The court’s actions are purely ministerial and it has no jurisdic-tion to interfere with the special commissioners or their hearing, nor to enter a judgment that alters the award in any way.

The deadline for filing objec-tions is the first Monday following the 20th day after the award has been filed with the court.13 If one or both parties object to the award, the court then obtains subject mat-ter jurisdiction and the administra-tive proceeding becomes a judicial proceeding.14 The court will “try the case in the same manner as other civil causes.”15

Although the condemning au-thority is the plaintiff in this case, the burden of proof as to value of the condemned property is on the landowner.16

AUSTINLAWYERAL AL

Footnotes1. Tex. Prop. Code § 21.0113. 2. Id. § 21.012. 3. Id. § 21.013. 4. Id. § 21.014. 5. Id. § 21.014(a). 6. Id. § 21.012(c). 7. Id. § 21.025. 8. Id. § 21.015. 9. Id. § 21.016(b). 10. Id. § 21.016(c).11. Id. § 21.021. 12. Id. § 21.061. 13. Id. § 21.018. 14. Id. § 21.018(b); Seals v. Upper Trinity

Reg’l Water Dist., 145 S.W.3d 291, 295 (Tex. App.—Fort Worth 2004, pet. dism’d).

15. Tex. Prop. Code § 21.018(b).

16. McDonald v. Dallas Cty. Aug. 16, 2001, No. 05-98-01500-CV, 2001 Tex. App. Lexis 5520 (Tex. App.—Dallas, Aug. 16, 2001 no pet.) (not designated for publication).

Sue Ayers is a trial lawyer with Jackson

Walker. Much of her practice involves

the representation of both plaintiffs and

defendants in condemnation cases.

syelenosky.com 512-444-2226 [email protected]

Senior District Judge

CAPITAL CAMPAIGN

OUR HOMEON JUDGES HILL

2019

DONATE TODAY HELP THE BAR REACH ITS $50,000 GOAL FOR THE LLOYD LOCHRIDGE CONFERENCE ROOM

Help us honor Mr. Lochridge by making a contribution towards the Lloyd Lochridge Conference Room at Hilgers House.

Donate at ourhomeonjudgeshill.com. To ensure your donation is credited towards the Lochridge Conference Room, enter LOCHRIDGE in the field that says, “Earmark this donation for a specific named space in honor of:” Or, mail a check, payable to the Austin Bar Foundation with “Lochridge” in the memo line, to the attention of Nancy Gray, 816 Congress Ave., Suite 700, Austin, TX 78701.


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