Austin Lawyer, September 2020 by Austin Bar Association

austinbar.org SEPTEMBER 2020 | VOLUME 29, NUMBER 7

Austin Bar Association Offers Special Membership Rates Join the Austin Bar for 2021 and Get Full Member Benefits for the Rest of 2020 for Free

020 has been atypical, to say the least. Like other organizations, the Austin Bar Association is striving to meet evolving needs of our members and broader community while maintaining a degree of normalcy. The Austin Bar has been working tirelessly since the COVID-19 pandemic began to provide member benefits that will help and support our community during this difficult time. These benefits include the following: • A COVID-19 resources page at austinbar.org with court updates, resources for law practices and lawyer well-being, and more; • Virtual CLE webinars offered on multiple topics, including topics related to COVID-19 such as pro bono needs and how COVID-19 has impacted legal needs, legal practices, and lawyer well-being; • Public access to COVID-19 webinar videos to help and support people, regardless of Austin Bar membership; • Members-only access to an ever-expanding library of online CLE materials at austinbar.org (currently over 90 hours of CLE videos are available);

What's My Membership ROI? Members receive a host of benefits that provide a solid return on their investment, including a monthly subscription to Austin Lawyer; many free and discounted CLE opportunities, including over 90 hours of free CLE online; access to 25 substantive law sections; member discounts and services; and much more.

• A Zoom platform for Austin Bar sections and committees to use for their meetings; and • A survey was conducted to find out how we can best help and support our members in the coming months. If you aren’t already a member

of the Austin Bar, now is the perfect time to join and take advantage of our special offer: Join for 2021 and get full access to our many member benefits for the rest of 2020 for FREE. You may join on the Austin Bar website at austinbar.org. We hope we can partner with you to fulfill our mission of enhancing the legal profession, administration of justice, and our community through networking, education, and public service. Your membership allows us to provide these benefits, and many others,

while also supporting the many access-to-justice programs and initiatives that are so crucial during this difficult time. We recognize that some of you may be experiencing financial hardship because of the COVID-19 pandemic. If this is the case, please contact Carol Tobias, director of membership, at carol@austinbar.org. She will be happy to discuss options to assist with your dues this year. To be clear: We do not want finances to be a barrier to those who desire to be an LAWYER active part of our legal AUSTIN community. AL AL

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CONTENTS

AUSTINLAWYER SEPTEMBER 2020 | VOLUME 29, NUMBER 7 AL A L INSIDE

CONNECTIONS

FEATURED ARTICLES

DEPARTMENTS

President’s Column

Join the Austin Bar for 2021 and Get Full Member Benefits for the Rest of 2020 for Free

Briefs

10 Be Well

Austin Bar Association Offers Special Membership Rates

Join an Austin Bar Committee Today!

EMAIL nancy@austinbar.org

15 Opening Statement

12 Taking the 21-Day Racial Equity Habit-Building

Challenge

20 Third Court of Appeals

13 Join Austin Bar’s 100 Club for the 2020-21 Bar Year

16 A Tribute to Bill Hilgers

22 Third Court of Appeals

Dec. 31, 1924 – July 27, 2020

Civil Update

Criminal Update

18 Planning for Elderly Parents: Medicaid Myths and Truths

23 Federal Civil Court Update

21 2020 Virtual Bench Bar Conference

24 Criminal Court News

A Vision to a Healthy Practice

26 Entre Nous

34 Leadership in the Time of COVID-19

28 AYLA

2020 Leadership Academy Class Donates More Than 280 Pro Bono Hours to Local Organizations

ONLINE

ONLINE austinbar.org

MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar

32 Practice Pointers

STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar

austinbar.org

NEWS & ANNOUNCEMENTS

UPCOMING EVENTS

Memo to all Travis County Attorneys and Guardians Ad Litem

SEPT 25

Judges plan to start hearing virtual jury trials on Oct. 12, 2020

TEXT austinbar to 313131 for up-to-date news + info

Virtual Bench Bar Conference

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INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.

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Kennon Wooten �� President David Courreges �� President-Elect Amanda Arriaga �� Secretary Justice Chari Kelly �� Treasurer D. Todd Smith �� Immediate Past President

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David King �� President Rachael Jones �� President-Elect Blair Leake �� Treasurer Sarah Harp �� Secretary Sandy Bayne �� Immediate Past President

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. 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.

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PRESIDENT’S COLUMN KENNON WOOTEN, SCOTT DOUGLASS & McCONNICO

Turning Toward Each Other in a Time of Change

t seems safe to assume that 2020 is not what any of us expected it to be. Of course, life rarely plays out as expected, no matter how many plans we make. John Lennon said it best in Beautiful Boy, a song for his son: “Life is what happens to you while you’re busy making other plans.” So true. But understanding that life is inherently unpredictable does not always make it easy to roll with the punches, particularly when they come at a rapid rate, from multiple directions. We are enduring a pandemic, staring uncertainty in the face. We do not know what the longterm consequences will be for our health, our economy, or our education system. Concurrently, we are grappling with the realities of persistent racism, including hateful conduct directed at Asian Americans blamed for the pandemic, as well as resistance to the Black Lives Matter movement.

Although we are all in this together, we are at various points on the path and sometimes struggle to understand how other people’s experiences and perspectives can be so different from our own. This struggle is understandable. The negative emotions and divisiveness stemming from the struggle are also understandable. That said, no matter what our differences may be, it may help us to be kinder to each other if we remember that everyone is going through something and, as Rep. John Lewis remarked throughout his life, we are all humans and all part of the human family. The Austin Bar’s Board and Austin Young Lawyers Association’s Board began this bar year by issuing a joint resolution, unanimously approved, that reflects a goal to “lay down the burdens of hate and divisiveness, respect the dignity and worth of every human being, and move forward in our progress toward a more unified bar and an equitable, just society that is at peace with itself.”[1] We welcome input from, and involvement of, anyone who wants to help us achieve this goal, including through participation in the Austin Bar’s newly formed Equity Committee;[2] attendance at the equity summit that the Austin Bar

will host before the end of this bar year; and participation in the anti-racist/implicit-bias training the Austin Bar will offer before or during the equity summit. Because the stressors we are experiencing can make it difficult to maintain hope and to muster the energy we need to tackle everyday work (much less transformative work), the Austin Bar’s commitment to well-being is also continuing in full force this year. If you are struggling to cope with stressors in your life, help is available. The Austin Bar’s website contains a lawyer-well-being page with links to many free resources, including Texas Lawyers Assistance Program resources. In addition, the Austin Bar’s Lawyer Well-Being Committee is engaged in efforts to educate, support, and connect our legal community to achieve more balanced, mindful, and joyful lives and practices. This year’s committee co-chairs are Diana Reinhart, who is both an attorney and a licensed marriage and family therapist, and attorney Danielle Ahlrich. Like all other Austin Bar committees, the Lawyer Well-Being Committee is open to all Austin Bar members. While change is certainly underfoot and the Austin Bar is striving to adapt accordingly, we are also

striving to maintain normalcy amid change. To that end, we are (1) continuing to offer Austin Lawyer and many hours of CLE free of charge to our members; (2) forging ahead with the Bench Bar Conference (via Zoom) on Sept. 25, 2020; (3) fostering the good work of all of the other Austin Bar committees that are not mentioned in this article; (4) facilitating the provision of pro bono legal services to people in need in our community; and (5) proceeding with renovations to Hilgers House that will make it a viable meeting space for our members. As Austin Bar president, I am committed to creating an inclusive, collaborative environment for everyone who wants to be involved. I believe that, in this tumultuous time, we need to turn toward each other instead of away. Please know that the Austin Bar is here for you—as you are. If you want to visit or provide input, please contact me anytime at AUSTIN LAWYER AL AL president@austinbar.org. [1.] Austin Bar and AYLA Resolution (July 24, 2020), available at https:// www.austinbar.org/2020/07/austinbar-association-and-austin-younglawyers-association-resolution/ (last visited Aug. 9, 2020). [2.] For information about this committee, see the cover story in the July/August 2020 issue of Austin Lawyer.

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AUSTINLAWYER | SEPTEMBER 2020

Phone | 512-653-3718

Join an Austin Bar Committee Today!

he Austin Bar Association’s 14 committees give member attorneys a chance to get involved with the legal and local community. Whether your passion is equity and inclusion, working with law students, planning CLE offerings, or offering free legal advice to veterans, the Austin Bar has the perfect committee for you! Sign up for one or more of the committees listed below at austinbar.org. Look for the committee page under the “For Attorneys” tab on the homepage of the website. Or, contact Membership Director Carol Tobias at carol@austinbar.org. AUSTIN ADOPTION DAY Chair: Denise Hyde. Coordinates the annual Adoption Day event traditionally held on the first Thursday of November. Due to COVID-19, details of this year’s Adoption Day are still TBD. BENCH BAR CONFERENCE Chairs: Rob Frazer, Megan Johnson, Amy Meredith, Maitreya Tomlinson, Judge Kim Williams, and Justice Gisela Triana. Organizes and implements the annual conference for Travis County lawyers and judges. Committee members create the full-day conference program, including developing a theme, identifying topics, and recruiting speakers. CLE PROGRAMS Chairs: Joshua Crowley and Sinead O’Carroll. Develops and organizes CLE opportunities to bring the best and most up-todate topics and speakers to the membership, including the Members Only 4th Friday Free CLE. COMMUNICATIONS Chairs: Jennifer Hopgood and Rachael Jones. Creates and implements policies and procedures for Austin Lawyer, Bar Code, the website, and the use of social media. Also helps identify topics and recruit writers for articles, and serves as an advisory committee

to the Austin Bar communications staff. DIVERSITY FELLOWSHIP PROGRAM Chairs: Tony Nelson and Leslie Dippel. Judicial liaisons: Judge Lora Livingston and Judge Eric Shepperd. Manages the Diversity Fellowship Program, which offers summer internships to minority law school students. Participants intern for the Travis County District Judges and for private law firms. EQUITY Leadership team: Judge Maya Guerra Gamble, Judge George C. Thomas, former Justice Craig Enoch, Mindy Gulati, Craig Moore, Ayeola Williams, Drew Williams, and Cathy Garza. Assists with an Austin Bar Equity Summit, book clubs focused on books and discussions designed to increase understanding and lead to inner and external change, networking focused on bridging social capital, compiling resources for people seeking guidance, and identifying Austin Lawyer authors and topics highlighting Austin’s diversity and history. FEE DISPUTE Chair: Stephen Moss. Mediates and/or arbitrates fee disputes submitted by clients, attorneys, the courts, and the District 9 Grievance Committee.

HILGERS HOUSE PRESERVATION Chair: Ashley Presson. Performs duties to preserve Hilgers House, applies for preservation grants, researches the history of the house, and provides tours to the general public. Also serves as a resource for the Judges Hill neighborhood. LAWYER WELL-BEING Chairs: Danielle Ahlrich and Diana Reinhart. Aims to educate, support, and connect our legal community to achieve more balanced, mindful, and joyful lives and practices. HISTORY & TRADITIONS Chair: Rev. Joseph C. Parker, Jr. Recruits and conducts oral history interviews of Austin attorneys and judges in order to preserve the history of the Austin Bar, the Austin legal community, and/ or significant legal events in the Austin area. Plans and executes other relevant history projects as decided by the committee. FOUNDATION GALA Chairs: Amanda Arriaga, Mary Ellen King, and Elliott Beck. Plans and produces the Austin Bar’s biggest event, an annual gala to raise money for the Austin Bar Foundation and all of its charitable entities such as Adoption Day, the Self Represented Litigant Project, and the Free

Legal Advice Clinic for Veterans. LAW-RELATED EDUCATION IN SCHOOLS Chairs: David Courreges and Jennifer Hopgood. Plans and implements various educational programs aimed at school-aged children. Also partners with Bookspring to provide books for children at the Travis County Courthouse. PRO BONO Chairs: Caitlin Haney Johnston, Bill Christian, and Megan Honey Johnson. Coordinates and plans Austin Bar pro bono programs and develops relationships with pro bono organizations in Austin such as Volunteer Legal Services, American Gateways, and the Texas Civil Rights Project. SUPERVISED PRACTICE PROGRAM Chairs: Leslie Boykin, Austin Bar and Hailey Suggs, AYLA. Due to the cancellation of the July 2020 bar exam, the Supreme Court of Texas adopted new rules governing the supervised practice of law by qualified law students and unlicensed law school graduates. The Austin Bar and AYLA are working together to create a program for those students and graduates who want to begin work before the September 2020 AUSTINLAWYER AL AL and February 2021 bar exams.

SEPTEMBER 2020 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Connor Ambrosini Georgia Beake María Amelia Calaf

ABOVE: Dippel, Fowler, Harrison, Rashidi, Malfettone, LEFT: McClimon, Torres

Stephanie Eberhardt Ryan Estes Kyle Farmer Miguel Garza Nelle Jennings Leigh Joseph Rachael Klipp Katherine Levy Allison Mattocks Caroline McClimon Sean McGinley Joseph Muller Courtney Oguejiofor Virginia Platts John Plumlee Thomas Pronske Barton Ridley Margaret Shahrestani Vanessa Suarez Collin White

AWARDS

The Barbara Jordan American Inn of Court has been awarded the Achieving Excellence Platinum designation for the 2019-20 Inn year by the national American Inns of Court organization. Former Austin Bar President Leslie Dippel was recently named “Best Third Year Director” by the State Bar of Texas Board of Directors. Brittney E. Harrison of GoransonBain Ausley was sworn in as the President of the Texas Young Lawyers Association in a virtual ceremony on June 26, 2020. Betty Balli Torres, executive director for the Texas Access to Justice Foundation, has been appointed by the American Bar Association to three new positions.

PATIENT

She will serve as the chair to the ABA Commission on Hispanic Legal Rights & Responsibilities, a special advisor to the ABA Commission on Immigration, and a member of the ABA Center for Diversity and Inclusion. Her terms for each position will last for one year and began on Aug. 4, 2020. NEW TO THE OFFICE

Bollier Ciccone announced that attorney Caroline A. McClimon joined their family law practice. Michael Malfettone has joined Locke Lord’s Austin office as partner in the firm’s energy practice group. Malfettone focuses his energy practice in the renewable power, clean energy technologies, and midstream natural gas industries throughout the United States and internationally.

PRACTICAL

Powers & Kerr is pleased to announce that Kayvon Rashidi has joined the family law firm as an associate attorney. OF NOTE

How to be the Greatest Historic Place in Austin, written by Laura Fowler, was released in February 2020. Hilgers House, the home of the Austin Bar, is mentioned in the book. The book can be purchased at millettoperahouse.com and proceeds benefit the Foundation for the Preservation of the Historic Millet Opera House.

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BE WELL

Life Beyond Your Bubble How to Expand Our Spheres of Influence to Combat a Self-Limited Reality BY HON. RUDOLPH “RUDY” K. METAYER

The Hon. Rudolph “Rudy” Metayer is an attorney at Chamberlain McHaney. He is the Chair of the African American Lawyers Section of the State Bar of Texas and serves as Councilmember for the City of Pflugerville.

“

he person you recommended is simply amazing!! Where did you find her? She’s really unique huh?” I cannot count the number of times I have heard these words when I am referring either an attorney of color to a well-respected business person or a managing partner at local firm, or a law school student who is spending the summer with the firm as an Austin Bar Association Diversity Fellow. Make no mistake, I feel great pride when I hear about the success these lawyers and law students have found in their respective areas. All of us have to credit the men and women who came before us and blazed the trail of opportunity which we follow. However, it is also a painful reminder of how, even in 2020, many people see it as an oddity to have an attorney of color in a major law firm or working in house (or as outside counsel) for a Fortune 100 business. Many in our profession view finding

AUSTINLAWYER | SEPTEMBER 2020

qualified and talented attorneys and law school students of color who will succeed in these arenas an impossible task. But I can attest from firsthand experience, these women and men can easily be found. It just depends where you are looking. As we get older, one of the unfortunate side effects is our natural inclination to start segmenting ourselves into smaller and smaller subgroups. From the neighborhoods we live in to the churches/ places of worship we attend, the people with whom we surround ourselves and decide to invest our free time tend to look, and think, like we do. Consequently, our spheres of influence tend to reflect this self-limited reality. This reality is detrimental not only to our practice of law, but to our health and wellness. As rational beings, when we become detached from the realities a significant portion of our society faces, we become unaware of the applicable trials and tribulations that exist. Therefore, when a society-altering event such as the murder of George Floyd occurs right in front of our eyes, it shocks many of us to our core that this could happen in our country because it does not comport with the reality that has been created in our self-made “bubble.” Or, put in another way, it does not fit into the context (nor provide us with the skill set) we have fit into our own narratives of reality. Yet, for the portion of society that has to navigate life both in and out of this bubble, such an event not only comports with our own life experiences, but frankly, has become a way of life to which we have adjusted in order to compensate in our lives. For better or for worse. Additionally, we have a State Bar that is 78 percent white in a state with a population that

A key to expanding your social circles and spheres of influence is by participating in one of the many local affinity bar groups that enable attorneys like me to know and refer a probate attorney who is Black, a tax attorney who is Asian-American, or an oil and gas attorney who is Hispanic. is only about 42 percent white. You can see where this leads to a crisis regarding the ability to have the bar reflect the population it serves. A key to expanding your social circles and spheres of influence is by participating in one of the many local affinity bar groups that enable attorneys like me to know and refer a probate attorney who is Black, a tax attorney who is Asian-American, or an oil and gas attorney who is Hispanic. Expanding participation and knowledge are where organizations such as the Austin Diversity Report Card Committee (ADRCC) become a vital tool to fight the perpetual lack of diversity and opportunity for attorneys of color. This organization was founded more than 20 years ago by Austin attorneys Paul Ruiz and Brian Jammer. They saw the disconnect between the pool of talent available to local law firms and the attorneys who were hired. The ADRCC knew many qualified attorneys who were being overlooked and wanted to find a way to solve this issue. By grading whether or not major firms reflected the diversity they proffered to support, the ADRCC tracked the progress (or lack thereof) that Austin firms were making to diversify their ranks, and gave pragmatic and factually based tools to address the system that repeatedly left out quali-

fied candidates. As a result of ADRCC's efforts, Austin law firms have extended their respective spheres of influence, including participation in the Diversity Fellowship Program, to find attorneys who they often previously said were “unique” and impossible to find, recruit, or hire. Does that mean diversity issues in the legal professions have been resolved? No. No it doesn’t. The recent comments by State Bar President Larry McDougal and the reaction from members across the bar, make clear that we have a long, long way to go. Yet we should highlight, praise, and appreciate the work of organizations such as ADRCC, for they are in the trenches trying to make a difference in our bar, our state, and our country. When you get a chance, I encourage you to please look at the results of the report card and reach out to the members of the committee. It is 2020, and the Austin legal market is now among the most robust in the state. It is past time for Austin firms to reflect the diversity of our booming, cosmopolitan city and region. The result will not only improve our profession but will also make us better lawyers and, more importantly, better people—people with empathy for and awareness of the experience AUSTIN of those who live LAWYER outside of our own bubbles. AL AL

SEPTEMBER 2020 | AUSTINLAWYER

Taking the 21-Day Racial Equity Habit-Building Challenge BY JUDGE JAN SOIFER

The Hon. Jan Soifer serves as the presiding judge of the 345th Travis County District Court.

did not anticipate learning anything new in the Austin Bar Association’s 21-Day Racial Equity Habit-Building Challenge. Like many of my open-minded friends and colleagues, I have diligently attended multiple diversity trainings, prejudice awareness courses, and other programs designed to help fight hatred of all kinds. I have a wide circle of friends of various races, ethnicities, religions, LGBTQ status, and national origins. I have proudly donated to and supported Black, Latinx, interfaith, LGBTQ, and various other social justice and progressive organizations, authors, and movies. I thought this challenge was a good idea, and I wanted to support it—but I didn’t expect much. I was wrong. Participating in this challenge was a remarkable experience. The readings, podcasts, and videos that make up the curriculum are excellent, and the perspectives it provided were thought-provoking and helped me understand other ways of looking at racism, white privilege, and their impact. While some portions of the curriculum had stronger or more immediate impacts on me than others, there was a lot to reflect on. A May 28, 2020 article in Re12

AUSTINLAWYER | SEPTEMBER 2020

provided suggesfinery29 titled, “Your Black Coltions for action leagues May Look Like They’re while challenging Okay—Chances Are They’re Not” me to lower my reminded me to consider that, defenses, consider “over the last few months, Black my responsibility people have not only watched to acknowledge their friends and family members my privilege, and die at higher rates from the corowork harder to fight navirus, they have also watched racism. These are people who look like them be challenges I will gunned down while going for a meet. It’s not too jog, be murdered in their homes, late to take the chalthreatened while bird watching lenge—I hope you’ll in Central Park, and mercilessly AUSTIN LAWYER joinAme. choked on-camera.” It suggestL AL ed, “on behalf of your Black colleagues: we’re not okay. And The curriculum you shouldn’t be either.” for the entire 21-Day An article by Peggy McIntosh, Racial Habit-Build“White Privilege: Unpacking the ing Challenge, as Invisible Knapsack” originally well as other anti-racism resourcpublished in 1989 in Peace es, can be found at austinbar. and Freedom Magazine, stated org/anti-racist-resources. The that she “was taught to see curriculum, shared by the Bar racism only in individual acts Association of San Francisco, of meanness, not in invisible was developed by one of their systems conferring dominance on [her] group.” That struck me as accurate in my life as well. She also said that although she knew racism puts others at a disadvantage, she was slow to recognize the corollary of white privilege that puts her at an advantage. She listed conditions in her life that have resulted from white privilege, many of which I had to acknowledge that, I too, have taken for granted. In addition to these articles, the curriculum includes a variety of materials, including a number of videos, a law review article on race as property, and Implicit Association Tests (IATs). I should have known that the IATs would make me uncomfortable—which they did—since before taking them, one must acknowledge, “I am aware of the possibility of encountering interpretations of my IAT test performance with which I may not agree. Knowing this, I wish to proceed.” Those test results stung. The twenty-one days of readings, videos, and other materials

member firms, Lieff Cabraser Heimann & Bernstein, whose Employment Practice Group curated the syllabus following the model established by diversity expert, Dr. Eddie Moore, Jr.

Join Austin Bar’s 100 Club for the 2020-21 Bar Year

he 100 Club is comprised of firms with four or more attorneys that have 100 percent participation in the Austin Bar Association. The 100 Club list is published annually in the September issue of Austin Lawyer and distributed to every attorney in the Austin area. The firms are also featured on the membership page of the Austin Bar website with links to the firms’ websites, and featured 100 Club Members of the Week are listed on a rotating basis each week in Bar Code, which is emailed weekly to about 3,500 Austin Bar members. Interested in becoming a 100 Club member? Contact Membership Director Carol Tobias at carol@austinbar.org. Thank you to the following Austin law firms for supporting the programs and practices of the Austin Bar with 100 percent AUSTIN LAWYER AL AL participation in 2019-20.

Alexander Dubose & Jefferson

DuBois, Bryant & Campbell

McKool Smith

Texas Rio Grande Legal Aid

Allenworth & Porter

Eichelbaum Wardell Hansen Powell & Mehl

McLean & Howard

Texas Workforce Commission

Metcalfe Wolff Stuart & Williams

The Blum Firm

Minton, Burton, Bassett & Collins

The Hay Legal Group

Almanza, Blackburn, Dickie & Mitchell

Enoch Kever

Armbrust & Brown

Flaherty Jones Thompson

Andrews Myers

Friday Milner Lambert Turner

Barnes Lipscomb Stewart & Ott

George Brothers Kincaid & Horton

Blazier, Christensen, Browder & Virr

Gjerset & Lorenz

Boulette Golden & Marin Bracewell

Graves, Dougherty, Hearon & Moody

Branscomb

Greenberg Traurig

Brim, Robinett, Cantu & Brim

Hanna & Plaut

Brink Bennett Golden

Hawkins Parnell & Young

Burns Anderson Jury & Brenner

Herring & Panzer

Burnett Turner

Howry Breen & Herman

Cain & Skarnulis Cantilo & Bennett Chamberlain  McHaney City Of Austin Law Department Coffin Renner Coldwell | Bowes Cook Brooks Johnson Davis & Wright Deats, Durst & Owen DeShazo & Nesbitt

GoransonBain Ausley

Hopper Mikeska Jackson Lewis Jackson, Sjoberg & Townsend Kelly Hart Kirker Davis Kuperman, Orr & Albers Lloyd Gosselink Locke Lord Martens, Todd, Leonard & Ahlrich Martin, Disiere, Jefferson & Wisdom

Munsch Hardt Kopf & Harr Noelke Maples St.Leger Bryant Osborne, Helman, Knebel & Scott Pillsbury Winthrop Shaw Pittman Potts Blacklock Senterfitt Reed, Claymon, Meeker & Hargett Reeves & Brightwell Richards Rodriguez & Skeith Richie & Gueringer Scott Douglass & McConnico

The Chapman Firm Third Court of Appeals Thompson & Knight Thompson Salinas & Londergan Travis County Attorney’s Office Travis County Civil Courts Travis County Court at Law Judges Travis County Criminal Courts Travis County District Attorney’s Office Travis County District Court Judges

Shearman & Sterling

Travis County Office of Child Representation

Slack Davis Sanger

Travis County Probate Court

SledgeLaw Group

Weisbart Springer Hayes

Smith Law Group

Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob

Streusand, Landon & Ozburn Supreme Court of Texas Texas Comptroller of Public Accounts Texas Department of Motor Vehicles

Winstead Wright & Greenhill Wynne & Wynne

Available by video and in person

The Diocese of Austin

cordially invites the Legal Community to the 29th Annual

Red Mass on October 1, 2020, 6 p.m.

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

The Mass will be livestreamed. For more information, visit www.austindiocese.org/red-mass.

SEPTEMBER 2020 | AUSTINLAWYER

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OPENING STATEMENT

Leave Behind These Words and Phrases BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

art of becoming a lawyer is mastering legal vocabulary, be it archaic, fancy, or Latin. It’s an important part of what law students and novice legal writers have to learn. But part of becoming an expert legal writer is knowing when to leave behind the archaic, the fancy, and the Latin. Some traditional legal words do nothing but make the text sound lawyerly. Always, there are effective alternatives. This column is part of my effort to pull legal vocabulary into 2020. We certainly don’t need to sound as though we’re writing in 1908, let alone 1708. So here are a few legal words and phrases we can leave behind. comes now A lawyer once asked me to settle a debate at the office: “If there’s one plaintiff, it’s ‘COMES NOW Rodney Jackson, …’ But if there are two plaintiffs, shouldn’t it be ‘COME NOW Rodney and Melinda Jackson, …’?” Of course, I replied that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS. Yet more than a dozen lawyers have told me over the years that they choose to retain comes now in court filings. Why? The convention is so deeply entrenched, they say, that omitting comes now could make them look like novices—like lawyers who don’t know how things are done. I grant the concern but it saddens me a bit. hereinabove, hereinafter Almost all the here- words should go (herein, hereto, hereby, etc.) but these two are the most annoying. They’re old, they’re often vague, and they’re always multi-syllabic. The legal-word expert Adam Freedman says that they arose from “experimentation. Lawyers and other literate folk enjoyed nothing better … than inventing new words by putting together two or more old ones.”1 Sometimes you can just omit them, sometimes you can use above and below, and sometimes you can specify what you’re referring to and where to find it. inter alia Latin phrases that aren’t terms of art, as this one isn’t, ought to be dropped: vel non, sub judice, sua sponte, and others. Use an everyday-English equivalent: and others, among others, or among other things. instant case I still remember the sad look on a third-year student’s face when I suggested that he use this case, the current case, the Jackson case, or even here in place of the instant case. “But the instant case sounds so … legal,” he said. All right. It’s often important for a novice to “sound legal.” But an experienced lawyer can abandon archaic language. -trix suffix words: administratrix, executrix, prosecutrix, testatrix In 1992, a legal-language expert named David Mellinkoff said these forms were “dying.”2 We can no longer wait around. Kill them off now. They’re sexist, archaic, and hard to pronounce.

We certainly don’t need to sound as though we’re writing in 1908, let alone 1708. So here are a few legal words and phrases we can leave behind. wherefore, premises considered Standard—but what does it mean? If it means “In light of everything just stated …” why not use “Therefore …”? know all men by these presents I’ll let someone else handle this one: Anyone who uses this phrase is an “unregenerate dinosaur” according to legal-drafting expert Ken Adams.3 witnesseth This word has no place in modern legal drafting. If you prepare transactional documents and you’re afraid to take it out, be brave. And look it up: You don’t have to take my word for it. Bryan Garner defines the word in Black’s Law Dictionary as an “antiquated relic.”4 For further guidance on outdated and useless legal words, see: • Kenneth A. Adams, A Manual of Style for Contract Drafting • Adam Freedman, The Party of the First Part: The Curious World of Legalese • Bryan A. Garner, Garner’s Dictionary of Legal Usage AUSTINLAWYER AL AL • David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage Footnotes 1. Adam Freedman, The Party of the First Part: The Curious World of Legalese 25 (2007). 2. David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 600 (1992). 3. Kenneth A. Adams, Know All Men By These Presents, Adams on Contract Drafting, https://www.adamsdrafting.com/know-all-men-by-these-presents/. 4. "Witnesseth," Black’s Law Dictionary 1839 (10th ed. 2014).

in witness whereof Harmless—but go ahead and delete this phrase from your form document.

SEPTEMBER 2020 | AUSTINLAWYER

A Tribute to Bill Hilgers Dec. 31, 1924 – July 27, 2020 BY TOM WATKINS

t is time to celebrate the life of Bill Hilgers, my longtime law partner and friend. But, to understand Bill, you have to start in the early 1940s. A description of Bill’s education reads “attended the University of Texas plan II 1941 – 1943; BBA 1947.” Some students take a gap year. Bill took more than a gap year. He took three years. Bill’s education gap encompassed a different type of education. With more than thirty combat flight missions over Germany as a navigator and bombardier, an Air Medal and a Distinguished Flying Cross each with three Oak Leaf Clusters, and a Purple Heart, Bill returned to civilian life. He was part of the greatest generation. Much has been said about the greatest generation. Much can be said about Bill Hilgers. Much can be said about Bill’s contributions to the legal profession: • President of the Travis County [now Austin] Bar Association • Director of the State Bar of Texas • Chairman of the State Bar Board of Directors • Member of the Board of Bar Examiners

• Chair of the Supreme Court Grievance Oversight Committee • Chair of the Fellows of the Texas Bar Foundation • Chair of the Texas Center for Legal Ethics • Chair of the Legal Aid and Defender Society of Central Texas Much can be said about Bill’s contributions to music: • Member of the UT Student Opera Company • Member of the UT Student Glee Club • Member of the University of Texas A Cappella Choir • Member of the UT Student Symphonic Band • Member of the UT Student Longhorn Band • Founding member of the James Dick Foundation for the Performing Arts • Member of the Board of KMFA • Member of the Board of Directors of the Austin Symphony Much can be said about Bill’s contributions to the study of religion and philosophy: • Founding member of the University Christian Church • Chair of the Foundation for Religious Studies • Chair of the Texas Bible Chair

Bill Hilgers

Foundation at UT • President of the Christian Church in Texas • Member of the Philosophical Society of Texas Much can be said about Bill’s contributions to education and social justice issues: • Chair of the Del Valle ISD Board of Trustees • Chair of the Human Opportunities Corporation • Co-chair of the Advisory Council, UT Psychology Department

• Foundation Trustee for the Center for Battered Women • Liaison Counsel for the Institute for the Humanities • Member of the Board of Trustees for the Austin Collaborative for Children Bill was an early undercover progressive. You had to know him for a long time to discover his firm belief in the constitutional mandate “to form a more perfect union.” Bill always believed we could do better. Bill had the vision, patience,

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and perseverance to get things done. Go behind the Barbara Jordan Statue at the Austin airport and read about Bill’s part in its creation and selection. Visit hearings of the Board of Disciplinary Appeals or the Commission on Lawyer Discipline and remember Bill’s part in the reform of lawyer discipline. Visit a concert at Festival Institute and experience the music Bill loved and helped preserve. View Hilgers House, the new home of the Austin Bar, to realize the respect he enjoyed. Listen to some of the many attorneys Bill influenced: “I have so many wonderful memories of ‘the good old days,’ including Bill doing his walk-about around the office and saying hi to everyone.” —Heidi Bloch “He was a very special man. I got to clerk for Mr. Hilgers (only ever called him Mr. Hilgers) my first summer after law school. He had just become the first chair of the Texas Center for Legal Ethics

“

He was a bear, sometimes quiet, sometimes not. But he somehow lifted up a really big group of loyal lawyers to be greater than even his own legacy.” — JULIAN RIVERA

and Professionalism (which he led the effort to establish), and I was helping with the legal content he was creating. I was very intimidated in the beginning. He had a scholarly and very formal presence, but he was a warm and kind man, who taught me a great deal. Very grateful to have had the chance to know him.” —Hal Katz “He was a bear, sometimes quiet, sometimes not. But he somehow lifted up a really big group of loyal lawyers to be greater than even his own legacy.” —Julian Rivera “Bill was a memorable and important character in my life.

Karmically before I got this news today, I thought of one of our many memorable interactions I had with him and luckily it was one of the funny ones rather than contentious ones! He was a class act and a great leader of the firm. And getting called into his office as a law clerk when you screwed up was one of the most intimidating and impressionable moments of my life, even 40 years later!” —Jim McClendon “Bill was a force of nature, widely respected, and a leader in the promotion of giving to the community.” —Mark Chouteau Bill always had dozens of new ideas and projects, even well into

his 80s. Some possible, some not. Unfortunately for his son and my dear law partner, David Hilgers, it was his job to convince Bill which was which. For me, I remember firm picnics and firm retreats orchestrated by Bill. I remember a warm and caring partner. I remember being urged, cajoled, and sometimes pressured to give back to the community. With him gone, we will all have to tryLAWYER harder to form a more AUSTIN perfect union. AL AL Tom Watkins is Senior Counsel at Husch Blackwell. He was a longtime friend and former partner of Bill Hilgers.

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SEPTEMBER 2020 | AUSTINLAWYER

Planning for Elderly Parents: Medicaid Myths and Truths BY MELISSA DONAVAN AND BRAD WIEWEL

Medicare does not cover long-term care, only very short-term care. The maximum number of days covered by Medicare is extremely limited and generally does not cover custodial care.

Melissa Donovan is a Certified Elder Law Attorney (CELA) by the National Elder Law Foundation, as recognized by the Texas Board of Legal Specialization. Contact her at Melissa@TexasTrustLaw.com.

magine you are at a social event and are asked by someone for advice about an elderly relative who is running out of money and may need to be placed in a nursing home. You want to be helpful and could be tempted to give a vague and general response based upon something you heard in a CLE program years ago. But before you begin to answer that question, remember what you read in this article below about the myths and truths of Medicaid. MYTH: “The State can take my mom’s house if she goes on Medicaid.” THE TRUTH: This is a deeply rooted myth, but the reality is that an individual’s home, whether married or single, is usually an exempted resource. If a single homeowner has equity of over $595,000, the home will not be fully exempt. If a homeowner actually receives Medicaid, the home may be taken by the State of Texas after death; this process is called estate recovery. The emphasis is on the word “may.” Although the state could foreclose to recover the money it has paid out to the Medicaid recipient, 18

AUSTINLAWYER | SEPTEMBER 2020

Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. He can be reached at Brad@TexasTrustLaw.com.

this process cannot be used if the spouse, and in some cases other immediate family members, of the recipient is still living in the home and, in any event, cannot occur until the recipient has died. And with preplanning, the home can be protected. The best way to accomplish that is with a transfer-on-death deed. The State can only seize homes that go through the probate process. By doing a transfer-on-death deed in advance, the property goes to the beneficiaries directly and not through probate. Lady bird deeds are another option where a transfer-on-death deed is not available, namely if mom’s agent under her power of attorney needs to sign the deed. MYTH: “Dad has to give away everything he owns to get Medicaid.” THE TRUTH: An individual is permitted to retain a specific dollar amount of countable property and 100 percent of exempt property and still be eligible for Medicaid. Under Texas rules, exempt property includes the personal residence, a motor vehicle, personal belongings, household furnishings and

medical equipment. There may be other exempt assets, depending on your circumstances. Many families make the disastrous mistake of transferring all of the parent’s assets to themselves to bring the value of the parent’s estate below the Medicaid eligibility levels. This would be a disqualifying transfer and results in the parent being penalized from receiving Medicaid for months or years, depending on the amount transferred. Even if there is an opportunity to cure this, which may not be the case, this informal strategy creates more work, expense, and stress. The “look-back” period also plays a significant role. See below. MYTH: “Mom has to wait three years after giving anything away to get Medicaid.” THE TRUTH: There is now a five-year “look back” or penalty period for asset transfers under the Medicaid rules. However, the disqualification, or period of ineligibility, isn’t always five years long and sometimes there is no disqualification at all. While certain transfers can cause ineligibility, others do not. MYTH: “Dad and his new wife have a pre-nuptial agreement so we don’t have to worry about her assets being counted against Dad when he applies for Medicaid, right?” THE TRUTH: To qualify for Medicaid, both spouses must disclose all of their assets regardless of existing marriage agreements, or separate or community property issues. Medicaid does

not distinguish between separate and community property and prenups are irrelevant. MYTH: “Mom’s Medicare will cover the nursing home bill.” THE TRUTH: Medicare does not cover long-term care, only very short-term care. The maximum number of days covered by Medicare is extremely limited and generally does not cover custodial care. When the Medicare coverage stops, the patient will pay out-of-pocket unless they have private long-term care insurance or qualify for Medicaid benefits. MYTH: “Mom can give away $15,000 per year to her children and grandchildren and still qualify for Medicaid.” THE TRUTH: This is a rule under federal gift tax law, not under Medicaid law. Any gift or transfer may cause a Medicaid application to be rejected, and you will also be penalized! Having clients obtain proper Medicaid planning can eliminate many problems that could otherwise occur. So, the best answer to give in the social setting is NOT the typical, “It depends.” The best answerLAWYER is, “DON’T TRY AUSTIN AL AL THIS AT HOME!”

THIRD COURT OF APPEALS CIVIL UPDATE

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 June and July 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Aug. 3, 2020. TRIAL PROCEDURE: Court dismisses appeal of an order granting a new trial. North Burnet Gun Store, LLC v. Tack, No. 03-20-0010-CV (Tex. App.—Austin July 1, 2020, no pet. h.). Gun Store obtained a default judgment against Tack on June 25, 2019. Tack discovered the default on August 20 and timely filed a motion for new trial on September 19. The trial court granted a new trial by order dated Dec. 4. Gun Store appealed, contending plenary power ended Dec. 3, 105 days after Tack learned of the default judgment. According to the court of appeals, because the trial court did not expressly rule on the motion for new trial, it was overruled by operation of law 75 days after Tack learned of the default, on Nov. 3, a Sunday. Applying TRCP 4, the motion was thus overruled on Nov. 4. Under TRCP 329b(e), the trial court had plenary power for an additional thirty days, including Dec. 4. The court dismissed for want of jurisdiction. 20

AUSTINLAWYER | SEPTEMBER 2020

SUMMARY JUDGMENT: Defect in jurat is one of form that must be raised in trial court. ACI Design Build Contractors, Inc. v. Loadholt, No. 03-19-00442-CV (Tex. App.—Austin July 17, 2020, no pet. h.). Loadholt sued ACI for its failure to repay a revolving line of credit. The trial court granted summary judgment for Loadholt. On appeal, ACI challenged Loadholt’s unsworn declaration as incompetent summary-judgment evidence because it lacked a valid jurat. The jurat was placed at the beginning of the document and stated the foregoing is true and correct; thus, it failed to apply to the remainder of the declaration. According to the court of appeals, an issue relating to a jurat is a defect in form. Because ACI failed to raise this complaint in the trial court, it was waived. The court affirmed. CAUSES OF ACTION: Court holds Texas law does not recognize cause of action for aiding and abetting. Hampton v. Equity Trust Co., No. 03-19-00401-CV (Tex. App.—Austin July 23, 2020, no pet. h.). The issue was whether Texas law recognizes a common-law cause of action for aiding and abetting. The trial court rendered judgment recognizing this common-law claim. The court of appeals noted that without legislative or supreme court recognition of a cause of action, as an intermediate appellate court, it would not do so. Hampton’s authorities did not mention a cause of action for aiding and abetting, but instead found defendants contributed to an injury and were responsible for the damages. Further, the Supreme Court has not adopted § 876 of the Restatement (Second) of Torts. Accordingly, the court concluded that a common-law cause of action for aiding and abetting does not exist in Texas law. The court reversed and rendered in part and affirmed in part. ORIGINAL PROCEEDING: Court grants mandamus relief in discovery dispute. In re Savoy, No. 03-19-00361CV (Tex. App.—Austin July 30,

2020, orig. proceeding). The trial court denied Relators’ motion to compel a TRCP 204.1 independent medical examination of plaintiff. The court of appeals concluded that Relators’ expert’s affidavit established good cause for the exam. The court rejected plaintiff’s argument that Relators could obtain the information from his medical records and from deposing his physicians. According to the court, plaintiff will rely on an expert who has examined him; Relators are entitled to the same opportunity. The trial court also struck Relators’ CPRC § 18.001 counter-affidavits. The court concluded Relators have an adequate remedy by appeal, noting that the possibility of a second trial did not automatically render an appeal inadequate. The court granted relief in part and denied relief in part. NON-PROFIT ASSOCIATIONS: Association cannot sue for damages on behalf of members. BCCC Social Members Assoc. v. Barton Creek Resort LLC, No. 03-18-00708-CV (Tex. App.— Austin June 3, 2020, pet. filed) (mem. op.). Association sued Club challenging a dues increase. The trial court granted Club’s motion to dismiss that contended Association members had to participate in the lawsuit. The court of appeals observed that Business Organizations Code Section 252.007(b) permits a non-profit association to assert claims on behalf of its members if neither the claim asserted, nor relief requested requires a member’s participation. According to the court, an association cannot sue on behalf of its members when the members seek money damages which vary per member. Here, individualized proof would be required to demonstrate damages. The court concluded that Association did not have a right to replead. Association proposed changing its claims, not adding jurisdictional facts. The court modified the trial court’s dismissal to be without prejudice to file suit in the future.

PUBLIC INFORMATION ACT: College employees’ transcripts not excepted from disclosure. Del Mar College Dist. v. Paxton, No. 03-19-00094-CV (Tex. App.— Austin July 1, 2020, no pet. h.) (mem. op.). The issue was whether college transcripts of two College employees were excepted from disclosure. The Public Information Act excepts transcripts of professional public school employees. AG Paxton concluded the transcripts could not be withheld. The trial court granted summary judgment for AG. College argued that it should be considered a “public school” because the legislature refers to junior college districts as “school districts.” The court of appeals observed that these provisions relate only to a junior college’s power to tax. According to the court, College is an “institution of higher learning,” not a “public school” under the PIA. Section 552.102(b) exempts only “professional public school employees” and not a broader category. The court affirmed. PUBLIC INFORMATION ACT: Settlement agreement not excepted from disclosure. Genuine Parts Co., Inc. v. Paxton, No. 03-19-00441-CV (Tex. App.— Austin July 10, 2020, no pet. h.) (mem. op.). Genuine sought to bar disclosure of a settlement agreement that it entered with the City of Houston under Section 552.014, which excepts from disclosure information that if disclosed would give advantage to a competitor. AG Paxton concluded the information was not excepted. The trial court granted summary judgment for AG. Genuine contended the information was being requested by one of its competitors to use against it. The court of appeals concluded the settlement agreement did not include any pricing or performance figures, but instead only provided lump sum payment information. According to the court, Genuine failed to explain how such informationAUSTIN could assist its competitor. LAWYER The court affirmed. AL AL

2020 Virtual Bench Bar Conference A Vision to a Healthy Practice

oin the Austin Bar Association and the AYLA Foundation for the 30th annual Bench Bar Conference via Zoom on Friday, Sept. 25, 2020. The day-long virtual CLE event will provide attendees with 6.75 hours of CLE, including 1 hour of ethics. Tickets are $100 for members and $250 for non-members. AYLA members and government attorneys may register for $50. Register at austinbar.org by 4 p.m. Sept. 24. No cancellations or refunds will be granted after Sept. 18.

SCHEDULE 9 – 9:15 a.m. WELCOME AND INTRODUCTION Kennon Wooten, President, Austin Bar Association; David King, President, Austin Young Lawyers Association 9:15 – 10:15 a.m. UPDATE ON TRAVIS COUNTY STANDING ORDERS, EMERGENCY ORDERS AND LOCAL RULES (1 hour partic. CLE) Judge Jan Soifer, 345th District Court (moderator); Judge Dustin Howell, 200th District Court; Judge Catherine A. Mauzy, 419th District Court; Judge Julio de la Llata, Associate Court Judge; Sam Denton, staff attorney, 459th Civil District Court 10:15 – 11:15 a.m. ETHICS AND DISCOVERY: BENCH BAR PERSPECTIVES FOR A CIVIL PRACTICE (l hour partic. CLE/Ethics) Scott Brutocao, Cornell Smith Mierl Brutocao Burton (moderator); Judge Andy Austin, Magistrate, U.S. District Court Western District of Texas; Judge Maya Guerra Gamble, 459th District Court; Tonia Lucio, Richards Rodriguez & Skeith; Jeff Edwards, Edwards Law 11:15 a.m. – 12 p.m. NAVIGATING THE CENTRAL DOCKET LIKE A PRO (0.75 hours partic. CLE)

Elliott Beck, Staff Attorney, 345th District Court (moderator); Warren Vavra, Office of Court Administration; Judge Karin Crump, 250th District Court; Megan Johnson, Staff Attorney, 353rd District Court 12:00-12:45 p.m. VIRTUAL JURY TRIALS IN TRAVIS COUNTY - CIVIL AND CRIMINAL COURTS (0.50 hours partic. CLE) D. Todd Smith, The Smith Group (moderator); Presiding Criminal Court Judge Brenda Kennedy, 403rd District Court; Elisabeth Earle, County Court at Law #7; Judge Karin Crump, 250th District Court; David Slayton, Administrative Director, Office of Court Administration 12:45 – 1:30 p.m. LUNCH 1:30 – 2:15 p.m. THE HEALTHY LAWYER: TAKING CARE OF MIND AND BODY (0.75 hours partic. CLE)

Chris Rhodes, Deas & Associates (moderator); Amber Mostyn, Mostyn Law; Judge Lora Livingston, 261st District Court; Erica Grigg, Texas Lawyers Assistance Program 2:15-3:15 p.m. THE TOP 3 THINGS YOU SHOULD KNOW ABOUT … (1 hour partic. CLE) Amy Meredith, Travis County District Attorney’s Office (moderator) • Appellate Law – Justice Jeffrey S. Boyd, Place 7 Texas Supreme Court; Maitreya Tomlinson, The Tomlinson Firm • Family Law – Judge Andy Hathcock, Associate Court Judge; Meagan Jones, Law Office of Nikki G. Maples • Criminal Law – Judge Brad Urrutia, 450th District Court; Judge Brandy Mueller, County

Court #6; David Gonzalez, Sumpter & Gonzalez • Probate Law – Judge Guy Herman, Probate Court; Kevin Holcomb, Graves, Dougherty, Hearon & Moody 3:15 - 3:30 p.m. BREAK 3:30 - 4:15 p.m. 20/20 VISION – AN INTERACTIVE ETHICS GAME (0.75 hours partic. CLE) Drew Harris, Attorney General – General Litigation (moderator); Judge Gisela Triana, 3rd Court of Appeals; Judge Eric Shepperd, County Court #2; Judge Kim Williams, County Court #9; Judge Robert Pitman, U.S. District Court Western District of Texas 4:15 - 5:15 p.m. A VIEW FROM THE BENCH: WAR STORIES, PERSONAL PREFERENCES, AND PRACTICAL ADVICE (1 hour partic. CLE) Stefanie Scott Shah, Scott Shah law (moderator); Chief Justice Jeff Rose, 3rd Court of Appeals; AUSTIN LAWYER Judge Amy Clark Meachum, 201st District Court; Judge Tim Sulak, 353rd District Court; L AL Judge Cliff Brown, 147th Criminal DistrictACourt

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STRICTLY CONFIDENTIAL Anji Maddox

Offices in Austin, Round Rock and Dallas SEPTEMBER 2020 | AUSTINLAWYER

THIRD COURT OF APPEALS CRIMINAL UPDATE the evidence did not raise these defenses.

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent 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 March 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of July 31, 2020. CHARGE ERROR – KIDNAPPING: Trial court did not err in failing to include instructions on mistake of law and mistake of fact. Holt v. State, No. 03-18-00755CR (Tex. App.—Austin Mar. 19, 2020, no pet. h.) (mem. op., not designated for publication). Holt was convicted of kidnapping his wife’s child. The kidnapping occurred during a custody battle over the child between the father of the child and Holt’s wife, who had been prohibited from having possession of the child. On appeal, Holt asserted that he was entitled to instructions on mistake of fact and mistake of law, because he reasonably believed that court orders prohibiting his wife from possession of and access to the child had expired. The appellate court concluded, however, that 22

AUSTINLAWYER | SEPTEMBER 2020

CHARGE ERROR – MURDER: Trial court did not err in including instructions on provocation and “seeking an explanation while carrying a weapon.” Trejo v. State, No. 03-18-00221CR (Tex. App.—Austin Mar. 20, 2020, no pet.) (mem. op., not designated for publication). Trejo was convicted of murdering a man who had an affair with Trejo’s wife. Trejo’s theory at trial was that he had killed the man in self-defense. The trial court included in the jury charge instructions on provocation and “seeking an explanation while carrying a weapon,” both of which limited Trejo’s self-defense theory. On appeal, Trejo asserted that these instructions should not have been included in the charge. The appellate court disagreed. A jury instruction on provocation is required when there is sufficient evidence for a rational jury to find beyond a reasonable doubt that: (1) the defendant did some act or used some words that provoked the attack on him; (2) such act or words were reasonably calculated to provoke the attack; and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm on the other. Trejo conceded that the first two elements were met in the case, and the appellate court concluded that there was some evidence supporting the third element. Regarding the second instruction, Texas law provides that the use of force against another in self defense is not justified if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was carrying a weapon unlawfully. The appellate court concluded that there was some evidence raising this issue. Finally, Trejo asserted that the two instructions were

improperly “merged” in the charge. However, the instructions tracked the language in the Texas Pattern Jury Charges, and the appellate court concluded that there was no error. CHARGE ERROR – BURGLARY OF A HABITATION: Trial court did not comment on the weight of the evidence in its charge to the jury, and other alleged charge errors did not cause appellant egregious harm. Lerma v. State, No. 03-1800578-CR (Tex. App.—Austin Mar. 26, 2020, pet. ref’d) (mem. op. on reh’g, not designated for publication). Lerma was convicted of burglary of a habitation. On appeal, Lerma raised multiple complaints regarding the jury charge. First, she asserted that the trial court improperly commented on the weight of the evidence when it instructed the jury that it was “permitted to draw reasonable inferences from the testimony and exhibits that are justified in the light of common experience” and that it “may make deductions and reach conclusions that reason and common sense lead you to draw from the

facts that have been established by the evidence.” The appellate court concluded that these instructions were not erroneous because they were correct statements of the law and followed the Texas Pattern Jury Charges. The instructions were not improper “special instructions,” i.e., they did not “focus the jury’s attention on a specific type or piece of evidence that may support an element of the offense.” Lerma further asserted that the charge contained other errors, including that it failed to instruct the jury that it should apply a “result of conduct” definition to various elements of the burglary offense. The appellate court concluded that none of these alleged errors caused Lerma egregious harm, based on the court’s review of the entirety of the jury charge, the state of the evidence, and the arguments AUSTIN LAWYER of counsel. AL AL

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. POST-TRIAL MOTION PRACTICE: Party cannot raise inconsistent findings in trial court’s judgment for first time on appeal. Acadian Diagnostic Labs., L.L.C. v. Quality Toxicology, L.L.C., 965 F.3d 404 (5th Cir. 2020). Acadian and Quality Toxicology (QT) entered into two contracts under which QT agreed to pay Arcadian a percentage of the amounts collected to perform certain testing services. QT and Acadian performed thousands of tests under the contracts, but QT refused to pay Acadian most of its agreed-to share of the collected funds. Acadian sued QT for breach of both contracts. The trial court granted Acadian partial summary judgment on both breach-of-contract claims. The trial court, however, could not determine the effective date of one of the contracts and thus could not determine when Acadian’s damages began to accrue. The court left that question for the jury. As for the other contract, the trial court appeared to find no dispute about the damages for most (but not all) of the specimens for which QT failed to pay Acadian. The trial court apparently left for the jury the question of damages for the remaining specimens under that contract. The jury awarded Acadian damages for QT’s breach of both contracts. For the first contract, the jury found that QT owed $635,032.23. And for the second contract—the one on which the court previously awarded summary judgment for $1,017,528.20—the jury found that QT owed $269,706.50. The jury instructions and the verdict form said nothing about whether that award was for all specimens

or just the ones for which the trial court denied summary judgment. The trial court’s final judgment said nothing about the earlier summary judgment opinion or its damages calculation. Instead, the judgment only reflected the jury’s verdict. Acadian did not file any post-trial motions about this apparent inconsistency. Acadian appealed and claimed that the final judgment should be increased to account for the “$1,017,528.20, less the $73,134.34 . . . payment” damages ordered in the trial court’s summary judgment ruling. The appellate court affirmed the final judgment because Acadian did not properly preserve the issue for appeal, holding that Seventh Amendment’s Re-Examination Clause barred the Court from amending the jury’s damages finding and increasing QT’s damages liability. Instead, to seek damages greater than what the jury ordered, Acadian should have filed one of several available post-trial motions with the trial court—either a motion for judgment as a matter of law under Rule 50(a) filed prior to the jury issuing its verdict, then renewed under Rule 50(b) after the verdict; or a Rule 59 motion for a new trial on damages after the verdict, challenging that the jury’s verdict was not supported by the evidence. By failing to file either of these motions, Acadian waived the issue on appeal. Alternatively, Acadian moved the Court to resolve the inconsistency with the summary judgment order and final judgment issued by the trial court. The Court held that Acadian again failed to raise this issue with the trial court. Acadian could have filed a Rule 58 motion to request a final judgment that reflected both the jury verdict and the summary-judgment opinion; a Rule 59(e) motion to amend or alter the judgment to account for the damages awarded in the summary judgment order; or

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a Rule 60(b) motion for relief from an allegedly erroneous judgment.

Texas,” and thus was insufficient to establish minimum contacts. The court of appeals disagreed, finding that, unlike in Stroman, (1) many of plaintiffs’ claims actually arose out of the cease-anddesist letter itself; (2) Grewal’s assertion of legal authority was not limited to New Jersey; and (3) the letter’s effect—i.e., causing plaintiffs to stop publication—had a “statewide impact.” The court of appeals held that Grewal was subject to the jurisdiction of Texas courts. Dismissal reversed and remandAUSTIN LAWYER ed for further proceedings. AL AL

PERSONAL JURISDICTION: New Jersey AG’s cease-and-desist letter, which resulted in cessation of plaintiffs’ business operations in Texas, was sufficient to subject AG to Texas courts’ personal jurisdiction. Defense Distributed v. Grewal, No. 19-50723, 2020 WL 4815839 (5th Cir. Aug. 19, 2020). Plaintiffs sued New Jersey AG Grewal over certain enforcement actions aimed at halting plaintiffs’ publication of materials related to 3D-printing firearms, including a cease-and-desist letter that caused plaintiffs to stop their publication. Plaintiffs alleged violations of their First Amendment rights and various state law claims. The trial court (W.D. Tex.) granted Grewal’s motion to dismiss for lack of personal jurisdiction. Relying on Stroman Realty, Inc. v. Wercinski, 513 F.3d 476 (5th Cir. 2008), the trial court determined that Grewal’s cease-and-desist letter to Plaintiff Defense Distributed (a Texas company) did not demonstrate an intent to “purposefully avail [himself] of the benefits of law like someone actually ‘doing business’ in

SEPTEMBER 2020 | AUSTINLAWYER

CRIMINAL COURT NEWS

The Confrontation Clause v. Trial by Zoom BY DAN DWORIN

D an Dworin is a criminal defense attorney 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.

n Greek mythology, the chimera was a fire-breathing hybrid of lion, goat, and serpent. The word has come to mean anything that appears appealing but is wildly implausible. That definition suits the idea that videoconferencing technology can allow criminal trials to be heard in a manner consistent with a defendant’s constitutional right to confront his accuser. Prior to the COVID-19 pandemic, the potential of emotional trauma to child witnesses was the public policy agenda that

led to various statutes allowing closed-circuit video testimony (which of course included the right to cross-examine) in lieu of live testimony in court in certain cases. The Supreme Court upheld that practice over the objection of the Court’s then-minority of constitutional originalists, such as the late Justice Antonin Scalia, in Maryland v. Craig.1 After Craig, the Supreme Court’s decisions on confrontation have fallen neatly into line with what was once a minority opinion—that the Sixth Amendment means what it says, and a defendant has an absolute right to confront his or her accuser in court. Craig has never been overruled, but the Texas Court of Criminal Appeals has noted that subsequent decisions have “nibbled it into Swiss cheese.”2 In Coronado v. State, the Texas Court of Criminal Appeals invalidated a state statute that allowed the admission of a videotaped interview of a child witness and required only that the defense be given an opportunity to submit questions to be asked at a deposition, in lieu of live testimony. With the guidance of Supreme Court precedent calling for strict interpretation of the Confrontation Clause,3 the Court found the statute unconstitutional because

the provision denied the right to actual cross-examination.4 Of course, civil practitioners in Travis County have lately become accustomed to having contested hearings via Zoom. In family law matters, the need for timely hearings is critical, as allowing the status quo to continue will usually cause irreparable harm to one party or the other, or to the interests of children. The Sixth Amendment does not apply to civil hearings, however.5 At some point in the nottoo-distant future, a criminal defendant may choose to waive the right to live confrontation in exchange for having a speedy trial (or at least not waiting an indeterminate amount of time for a live hearing to be possible). Absent such a waiver, a multitude of constitutional provisions stand

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in the way of forcing a waiver of a defendant's right to confrontation over an objection. The right to confront and cross-examine a witness in court is probably the most formidably strong, based on the current composition of the Supreme Court and its recent Confrontation Clause jurisprudence. This right of confrontation and direct examination still exists during the current pandemic andLAWYER increased use of AUSTIN AL AL virtual hearings. Footnotes 1. 497 U.S. 836 (1990). 2. Coronado v. State, 351 S.W.3d 315, 321 (Tex. Crim. App. 2011). 3. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004). 4. Coronado, 351 S.W.3d at 329-30. 5. U.S. Const. amend. VI. c.f. U.S. Const. amend. VII (addressing rights of civil litigants).

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ENTRE NOUS

Being an Active Bystander BY CLAUDE DUCLOUX

ew activities have given me such joy and satisfaction as entertaining and educating those in my chosen profession with these 28 years of Entre Nous columns. We have found humor together in poking fun at our self-importance and sharing our frustrations with technology, legal process, and annoyances we face daily. Occasionally, important events have given me the opportunity to remind all of us of the legacy that our profession occupies in our most unusual circumstances. The disarray and confusion we find ourselves in as a nation rallies me again to that mission. We face breathtaking divisions which challenge our professed desire for a “more perfect union.” While we may stumble, we must always be vigilant to the malevolent danger which lurks in abandoning the rule of law. Human history, old and recent, is marred by occasional descent into genocide: tragic periods where innocents are slaughtered in attempts to overcome serious societal issues that often have nothing to do with the victims, who are merely scapegoats. Each time, the societies claim that they “had no idea” what forces led to those horrible events. So, how do you convince one group to lose all sense of reason, conscience, and morality and murder their neighbors, or even turn away when it is happening? Enter Ervin Staub, a Jewish psychologist who narrowly survived the Holocaust in Hungary. Staub has devoted his life to studying the genesis of, and reasons for, these events. There are common elements. Genocides do not start with one seminal event. Instead societies are slowly groomed in despair. The society almost always is suffering from massive depression, want, fear, and unanswered

AUSTINLAWYER | SEPTEMBER 2020

Have we lost that important sense of outrage? needs. Incessant toxic messaging often supported by faulty religious justification is a prime influencer. Demeaning insults and caricatures are created to target the group (in Rwanda, the Tutsis were constantly referred to as “cockroaches”). The anger builds slowly until it boils—then violence erupts. Psychologists then say, once you have committed heinous violence, it becomes easier…and finally—the norm. So, what can a single person do? As it turns out: A LOT. Staub talks about the power of “active bystanders” who call out this hate, who protect others, who admonish demagogues, officials, neighbors, and people engaging in hateful acts. Thousands upon thousands of lives were saved by “bystanders” who would not be dissuaded by the Nazis’ threats if they helped Jews. Same in Chechnya, Rwanda, and Cambodia: One person made a difference. So, could these lessons apply to our current events, where markers of the same conditions are unavoidable? We are experiencing unprecedented tribalism, adherence to group identities which morph our consciences and reasoning. Entire groups of immigrants are referred to as criminals and murderers. We shed our empathy. We surround ourselves with those who help

• I will not spread lies, nor suffer those who do. • I will do my best to ensure that my actions are based upon the truth. • I will not tolerate attacks on my neighbors, friends, or my community based upon race, status, or gender issues. • I will be mindful that my refusal to call out injustice will be seen as complicity. • I will use my voice and legal talents to assist, educate, and promote the general welfare of my community and country. • I will not lose hope for this great country, nor empathy for those in need.

suppress our better angels. If Staub is right, we’re clearly in dangerous territory. Yes, we are all in a quandary: The country is divided, the economy under incredible stress. We must, above all, act with Tens of millions of people have integrity, and ask ourselves, uncertain futures. We are desper“How would I like to be rememate for quick fixes. Moreover, as bered on this issue?” Some call a society, we are now accustomed that “being on the right side of and anesthetized to the constant history.” I call it having a clear shower of lies filling every news conscience. cycle. We have lost that important All of us wish we had all the sense of outrage. Talking heads answers. None of us ever will, tell us we have a constitutional but we cannot sacrifice the right to ignore science, viroloconfidence that society gives us gy, and physics and to choose as attorneys and trade it for quick our own truths. Uncomfortable fixes, demonization, and divisive truths are dismissed as “hoaxes.” group identities which will always Worse, every day we see good pose a danger to our survival as a people and leaders we admire nation. As we continue to engage become complicit and ignore the fight against COVID-19, the their fiduciary duties to call out longer war we face is the disease these dangerous trends. Rather, of “hoaxicity”—that toxic ability we weep as it becomes acceptable to dismiss truth, decency, and to hide behind lies which “don’t conscience. affect me.” Lawyers around the world often risk their lives attacking What stands between this and injustice. But they persist in the our ruination? The law. That’s belief that there is no other way our beat. That’s our deal. Every forward. Now, it is time for us lawyer who values the Rule to be brave. Be there for your of Law, our sacred pact which friends, neighbors, community, promises to handle our disputes and profession as that safety valve with rules and processes, must Staub calls the “active bystandbecome an active bystander. er.” Make your voice heard, and Every single day, the members your choices count. I promise, of the legal profession should you will sleep better. have a credo: And (as always) keep the faith. • I pledge to make a difference AUSTINLAWYER AL AL wherever I can.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN DAVID KING, GRAVES DOUGHERTY HEARON & MOODY

A Different Bar Year

hile I am often reluctant to predict the future, here is one thing we can count on: The 2020-21 bar year is going to be very different. The pandemic has upended virtually every aspect of our lives with no end in sight. The toll in terms of both human lives and economic well-being is staggering. And, on top of all of that, it’s an election year!

faced with the dilemma of how to get involved when our traditional social structures have been dismantled by the pandemic. Once upon a time (i.e., six months ago), AYLA held monthly service days with organizations such as Habitat for Humanity, the Central Texas Food Bank, the Austin Parks Foundation, and many others. We also organized groups to volunteer at Volunteer Legal Services’ weekly clinics and to go to the Community First! Village to draft wills for the homeless. Like so many other organizations, AYLA’s programs have been deeply impacted by the pandemic. This requires AYLA to adapt. Indeed, AYLA must adapt if it is to fulfill its mission

While I hesitate to call it a silver lining, I believe the pandemic—both its disruption and the isolation it has imposed—has left people more eager than ever to get involved in confronting our community’s biggest issues. And yet, now more than ever, during these chaotic and uncertain times, it is critical that our legal community remains connected and involved. The need is great. There is no question, with unemployment expected to reach its highest level since the Great Depression, the need for legal services, particularly for the most vulnerable, is climbing and will continue to climb dramatically. Evictions, domestic violence, bankruptcies, fraud— there is a wave coming, to the extent it is not already here, and it will get worse before it gets better. At the same time, many are 28

AUSTINLAWYER | SEPTEMBER 2020

of promoting justice through service to the profession and the community. This will certainly be a challenge, but I am confident that AYLA and its members will rise to that challenge. While I hesitate to call it a silver lining, I believe the pandemic—both its disruption and the isolation it has imposed—has left people more eager than ever to get involved in confronting our community’s biggest issues. We are seeing this, for example, as protests continue across the country over racial injustice. This outpouring of activism in the

face of the pandemic is inspiring. And we are seeing this increased involvement among AYLA’s members, too. In July, AYLA worked hand-in-hand with the Austin Bar to respond to the online commentary posted by State Bar of Texas President Larry McDougal. In back-to-back meetings called with short notice, the boards of the Austin Bar and AYLA assembled (remotely, of course) to unanimously approve a joint resolution condemning racism and encouraging the implementation of changes like requiring anti-racism/implicit-bias training, providing funding to the Office of Minority Affairs that is sufficient to allow it to increase programming and communication on issues regarding diversity and racial issues within the State Bar, and augmenting Texas Bar Journal content by publishing highlights and stories regarding successes and challenges related to diversity within the profession. The following month, AYLA again teamed up with the Austin Bar to form a joint Supervised Practice Committee, which aims to match yet-to-be-licensed law school graduates with lawyer supervisors in the Austin legal community, with a focus on pro bono work. These are some of the ways that AYLA and its members are staying involved. There will be much more to come as the bar year gets underway. To be sure, we also expect, one day, to resume our “regularly scheduled programming”—including our Judicial Reception, where AYLA members mix and mingle with our local judges; the Runway for Justice fashion show, which features your favorite local lawyers and judges modeling various looks; and, of

course, our monthly Docket Calls. But, in the meantime, AYLA will be turning its sights elsewhere, and, in particular, toward the needs which arise as our community grapples with the pandemic’s repercussions. Finally, if there is one thing we need here at AYLA as we adapt to this rapidly changing world it is innovative thinking and leadership. With many of its programs on hiatus, AYLA is fertile ground for completely new ideas about what we can do as an organization and how we should do it. To that end, I encourage our members to get involved and take ownership of their organization. Join one of AYLA’s committees; better yet, email me your ideas for new committees that can help activate AYLA’s members. And encourage your friends to join! With new members come new ideas. In these difficult times, many of us have a deep desire to not only stay connected to others, but also help others in need. AYLA aims to accomplish both. With any luck, this bar year will be remembered, not simply for the challenges we faced, but for the unique ways we responded to AUSTIN LAWYER those challenges. AL AL

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Member Spotlight: Tycha Kimbrough AYLA: Tell us a little bit about yourself and your law practice. Kimbrough: I am a solo practitioner at Kimbrough Legal, which is a compassionate and dedicated Texas criminal defense and family law firm that cares deeply about the Austin community. I obtained my Juris Doctor degree and professional certificates in Criminal Law and Family Law from Baylor Law School, where I also was designated as a Public Interest Fellow for completing over 225 hours of pro bono work during law school. I tenaciously work to serve my community. Some of my service and pro bono work includes leading voter education and registration drives, advocating for marginalized individuals, serving as a mentor, and volunteering with numerous legal organizations to ensure everyone has access to justice. AYLA: Why is conducting volunteer legal work important? Kimbrough: Providing volunteer legal work is important because not only are attorneys able to serve low- and modest-income communities through volunteer work, but it also allows attorneys to gain broader perspectives,

Every day, I consider it a blessing to be a lawyer, especially considering that I am a first-generation college and law school graduate. practice law in areas that we truly love, and it makes our hearts smile knowing that we are using our knowledge and skills to help someone. At a young age, my grandmother, a civil rights activist, instilled in me the value of serving as a voice for the voiceless. Consequently, I have always been passionate about being intentional with allocating time to serve others. Every day, I consider it a blessing to be a lawyer, especially considering that I am a first-generation college and law school graduate. I truly believe “to whom much is given, much will be required.” Luke 12:48. AYLA: Any advice for a fellow attorney who does not feel qualified to give volunteer legal advice outside their specialty area? Kimbrough: If an attorney is hesitant to volunteer because the legal

advice she is providing is outside of her specialty area, I would encourage her to prepare for the pro bono work in advance by 1) conducting research on frequently asked questions to ensure she is up to date with the law, 2) seeking advice from a mentor or trusted colleague who has experience in that area of law, and 3) attending volunteer training sessions. I would also encourage that attorney to volunteer with organizations where his knowledge and skills can best be utilized. I would also remind him that despite many attorneys focusing on specific practice areas, many of us are competent in multiple areas, as we spent years in law school and passed the grueling bar exam. We may not be experts or specialists in every area, but we know the basics or have the ability to research issues to find the right answers.

Tycha Kimbrough

AYLA: What’s your best piece of advice for fellow young attorneys? Kimbrough: My best piece of advice for fellow young attorneys is to enjoy the practice of law and to always do what makes your heart smile. Most of us became lawyers to genuinely help people, as cliché as it sounds. I also implore every young attorney to commit to doing pro bono work for the good of the public, and to get involved in legal associations, as your network is your net worth!

AYLA Receives Awards Juvenile Record Sealing Training and Legal Clinic Honored

Association Young Lawyer Division (ABA YLD) recognized the excelongratulations to the Austin Young Lawyers Association for lence of the program and awarded AYLA the following awards: its outstanding programming during the 2019-20 bar year. Proving that community is truly stronger when it works TYLA AWARDS together, AYLA, in partnership with Travis County District • First Place, Large City Service to the Public: Fresh Start Initiative: Clerk Velva Price, created the Fresh Start Initiative: Juvenile Record Juvenile Record Sealing Training & Legal Clinic. Sealing Training & Legal Clinic which brought together organizations including the Travis County District Attorney, Travis County Attorney, ABA YLD Travis County District Clerk, Travis County Law Library, Volunteer • Service to the Public, Local Division C: Fresh Start Initiative: Legal Services, Travis County Juvenile Defenders Office, Travis County Juvenile Record Sealing Training & Legal Clinic. Juvenile Probation Office, Capital Area Private Defender Service, and • Overall Outstanding Service to the Public Award. Mt. Zion Baptist Church. Special thanks goes to the Dallas County District Attorney’s Office The Fresh Start Initiative was created to help former juvenile offenders and the Dallas County District Clerk for serving as advisors on the seal their juvenile records and to train attorneys so they can offer this serproject, and to the Constables of Precinct 1 for providing security at the LAWYER vice in their practices and pro bono services independently of the clinic. AUSTIN AL AL clinic. The Texas Young Lawyers Association (TYLA) and the American Bar SEPTEMBER 2020 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Race Judicata 5K

he Austin Young Lawyers Association is hosting Race Judicata, a virtual 5K. A virtual race is a race that can be run at any location. You can walk, use the treadmill, run outside, or another option of your choice to complete the 5K distance. Race Judicata will take place beginning on Sat., Sept. 12 and ending on Sat., Sept. 19. The $35 entry fee will benefit the AYLA Foundation and participants will receive a T-shirt. Please visit ayla.org for registration information and sponsorship levels. Follow these steps to join the virtual race: 1. Register at ayla.org. 2. Download the Strava app. and join the AYLA Strava Club at strava.com/clubs/ayla. 3. Sync Strava with your GPS device (iPhone, Android,

AUSTINLAWYER | SEPTEMBER 2020

SEP. 12-19 RACE JUDICATA VIRTUAL 5K, ANY LOCATION $35 Entry Fee

smartwatch, Fitbit, etc.) to track your run/walk. If you don’t have a GPS device, no problem! You can manually enter your 5K time into Strava. 4. Complete your 5K between Sept. 12 and Sept. 19, 2020. 5. Upload pictures to social media with the hashtags #racejudicata and #AYLA and tag @austinyounglawyers on Instagram. 6. The top three runners will receive a shout out on Facebook and inLAWYER Austin Lawyer. AUSTIN L AL 7. HaveAfun!

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PRACTICE POINTERS

Advocating for Human Rights ABLA and HBAA’s First Juneteenth CLE BY AYEOLA WILLIAMS, JASMINE HARDING, TYCHANIKA “TYCHA” KIMBROUGH, AND LAURA DE LA GARZA theory of excessive force, which permits a police officer to use a reasonable amount of force to effectuate an arrest, to defend self or others, or—to some degree—defend property or prevent unlawful crimes. The legal standard under the Fourth Amendment for excessive force requires an injury that resulted from the unreasonable use of force.

Ayeola Williams, Staff Attorney, Capital Metro

Tychanika “Tycha” Kimbrough, Managing Attorney, Kimbrough Legal PLLC

n the midst of the COVID-19 pandemic and nationwide protests for Black lives and racial justice, roughly 200 attorneys from around the state participated in the noon-hour Juneteenth CLE: “Intro to Civil Rights: Advocating for Social Justice During Periods of Civil Unrest and Beyond,” hosted by the Austin Black Lawyers Association and the Hispanic Bar Association of Austin. This summary of the CLE is intended for Austin lawyers who are seeking opportunities to advocate for and/or get involved in the seemingly 32

AUSTINLAWYER | SEPTEMBER 2020

Jasmine Harding, Associate, Doyle & Seelbach PLLC

Laura de la Garza, Deputy Director, Senate Committee on State Affairs

never-ending crusade for social justice and human rights. The first speaker, Brian McGiverin, an experienced civil rights attorney with the Austin Community Law Center and privatesector firms, shared fundamental concepts of civil rights cases and how these concepts could be viewed as obstacles to justice. When asked about specific cases filed against police officers, McGiverin explained that arrests without probable cause, unreasonable searches and seizures, and excessive force claims are typical cases seen in litigation. He elaborated on the legal

minority representatives, the boundaries of these districts determine who is elected to represent them, and legislators must walk the fine line of fairly apportioning districts according to similar populations without diluting minority votes. Protecting the principle of “one person, one vote” and ensuring that minority voters are

The 2021 redistricting will be the first time in nearly 50 years that Texas has not been subject to federal preclearance of our legislative redistricting process. McGiverin’s discussion shifted to the statutory interpretation of 42. U.S.C. § 1983. He emphasized that the statute does not create rights; rather, it’s used as a vehicle which permits someone to enforce certain laws. McGiverin further explained the doctrine of qualified immunity and its practical implications of permitting someone to not be held liable for violating another person’s constitutional rights in certain situations. McGiverin encouraged individuals interested in volunteering on excessive force cases to contact the Austin Community Center, the Texas Civil Rights Project, or other applicable firms or programs. Laura de la Garza, a legislative attorney, explained the legislative process and how the upcoming legislative redistricting will affect minority representation in state government. Following each decennial census, the Texas Constitution requires the state legislature to reapportion legislative districts. In practice, because majorityminority districts tend to elect

equally represented in legislative districts has been the subject of many Supreme Court cases. (See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Thornburg v. Gingles, 478 U.S. 30 (1986); Shaw v. Reno, 509 U.S. 630 (1993).) The 2021 redistricting will be the first time in nearly 50 years that Texas has not been subject to federal preclearance of our legislative redistricting process. Attorneys can get involved in the legislative process by: 1) calling or meeting with their legislator; 2) testifying at committee hearings; and 3) if they don’t have time to follow the legislative process of each bill, donating to social justice organizations that have full-time lobbyists. Tychanika “Tycha” Kimbrough, managing attorney of Kimbrough Legal, passionately discussed how she is advocating for social justice reform and fighting against racial injustices by representing arrested protesters on a pro bono basis. Kimbrough shared how individuals throughout the State of Texas and the United

States are protesting to obtain justice for George Floyd and other individuals who have been killed and brutalized by police officers. Kimbrough discussed how her firm is assisting peaceful protesters who are being charged with misdemeanors, as well as providing guidance to organizations and protesters wanting to better understand their First Amendment rights. Kimbrough discussed how being arrested can be an overwhelming and stressful experience and she offered insight on how she advises her clients on their rights when it comes to protesting, how to handle arrests, and steps to take if their rights are violated. Kimbrough also reviewed other issues protesters are facing, such as the use of excessive force by police officers. When discussing how attorneys can help, Kimbrough encouraged attorneys to support social justice organizations by becoming involved and making financial donations. She also encouraged attorneys who are interested in helping arrested protesters to connect with criminal defense lawyers and assist with document preparation and/or court appearances. Kimbrough emphasized the importance of: 1) voting and becoming voter registrars; 2) using attorney platforms such as networking groups and social media to educate people; and 3) lobbying elected officials. Yasmine Smith, managing partner for Smith and Mendoza, discussed the importance of being present in your feelings and finding space in your unique legal life to dedicate to social justice. Smith discussed how lawyers are often called upon to wear hats other than that of a lawyer by serving on the boards or working with other 501(c)(3)s or non-legal organizations. It is in these alternate positions, Smith explained, where lawyers may find they are most able to “get their punches in” in the fight for social justice. For Smith, a transactional lawyer by day, this

Not everyone is going to be "boots on the ground" in a court room. Lawyers can act behind the scenes, for example, by writing grants to make sure those who need money have it to continue the good fight. is achieved best in in her roles as director of development at the Austin Area Urban League where she oversees the organization’s fundraising efforts, and as vice chair of PUMA (People United for Mobility Action), an

organization dedicated to achieving mobility justice in Austin. When asked how lawyers can give back, Smith noted that, like herself, not everyone is going to be “boots on the ground” in a courtroom. Lawyers can act

behind the scenes, for example, by writing grants to make sure those who need money have it to continue the good fight. Smith emboldened the participants to use their skills—and their pocketbooks—to work on behalf of unrepresented and vulnerable populations. She emphasized the need for lawyers to focus on all of the spheres, not just police misconduct, which interact and create vulnerable populations and negative consequences for individuals, AUSTIN includingLAWYER infrastructure and mobility options. AL AL

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Leadership in the Time of COVID-19 2020 Leadership Academy Class Donates More Than 280 Pro Bono Hours to Local Organizations BY THERESA GOLDE, DE LEON WASHBURN & WARD, AND NATALIE D. TARNOSKY, THOMPSON, COE, COUSINS & IRONS “If your actions inspire others to dream more, learn more, do more and become more, you are a leader.” – JOHN QUINCY ADAMS

hile Mr. Adams is no doubt correct, we dare say leadership is more than merely inspiring these things in others. Leadership means allowing others to inspire these qualities in oneself as well. It is encouraging others to show the best in themselves, and, in return, learning how to share the best qualities within our own capabilities. Leadership means always developing, always learning. It is not simply management or control of a given situation. It is also guidance, open-mindedness, adaption, and, most importantly, evolution. This spirit of leadership was manifestly evidenced by the recent contributions of 26 local attorneys, members of the 2020 Class of the Austin Bar/AYLA Leadership Academy. The Academy commenced before the pandemic began, and the class initially intended to throw a large BBQ to fundraise for the causes supported by the Austin Bar Foundation. When COVID-19 struck, the class determined it could no longer safely sponsor a social event. Given the limitations placed on the group by the pandemic restrictions, the 2020 Leadership Academy class worked as a team to develop an alternative project—one that could be accomplished within the new limitations placed on them by city ordinances, employers, and increased familial obligations. The group members recognized that they have an important set of skills to share with their community—skills that were of particular value, especially in these unprecedented times. With that in mind, the class deviated from the typical project model utilized by prior Leadership Academy classes. Instead, they planned to donate pro bono legal services to the many legal-aid organizations in need of volunteers and to those in the community who were suffering financially because of the pandemic. This meant that not only did the nature of the class project change, but so did the nature of the quality of leadership required to accomplish the initial goal of collectively donating 150 hours of pro bono work. Fortunately, the class came together (from a distance, of course) and, through coordinated and committed efforts, its members were able to exceed their initial goal. Ultimately they contributed over 280 hours of free legal services to several service organizations in the Austin area, including Volunteer Legal Services of Central Texas and Vecina. One member of the class, Hannah Hembree Bell, shared her experience with the changes to the class project: “2020 certainly had different plans for our Leadership Academy Class. It’s been wild, but I’ve enjoyed

Golde

Tarnosky

Theresa Golde, De Leon Washburn & Ward, and Natalie D. Tarnosky, Thompson, Coe, Cousins & Irons, are co-chairs of the class of 2020 Leadership Academy Class Project Steering Committee.

the group’s pivot to a pro bono project. What started as a ‘quick’ VLS call turned into a full-on international custody dispute that I couldn’t walk away from. I’ve learned so much through the process, and I am honored to have had the opportunity to serve alongside my Leadership Academy classmates amidst all the corona-craziness.” Class member Theresa Golde also shared her experience: “I represented someone who was furloughed due to the pandemic and needed help with a professional license issue. It was a rewarding experience to know that helping my client through this hardship would give my client the means to continue to work. The pandemic has already greatly affected people’s employment, and I did not want my client’s licensing issue to be another barrier hindering employment. I am grateful that our class shifted its focus to a pro bono project; it is truly amazing to see the impact our class has had on the community during these challengAUSTIN LAWYER ing times.” AL AL As members of this year’s Leadership Academy class, the authors of this article are proud of the work done to better our community, but we are also grateful to have come through this unusual experience having learned something priceless about leadership: Leaders are nothing without the team with which they surround themselves. We were fortunate to be part of a group of young attorneys who saw the need for their assistance and who worked to develop an attainable mechanism through which to address that need.

The 2020 Austin Bar/AYLA Leadership Academy Class with Texas Supreme Court Justice Debra Lehrmann at the Academy's opening retreat in January 2020. 34

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Austin Lawyer, September 2020

Articles inside

Advocating for Human Rights

AYLA Race Judicata 5K

AYLA Member Spotlight: Tycha Kimbrough

A Different Bar Year

Being an Active Bystander

Planning for Elderly Parents: Medicaid Myths and Truths

A Tribute to Bill Hilgers

Taking the 21-Day Racial Equity Habit-Building Challenge

Life Beyond Your Bubble

Join an Austin Bar Committee Today!

Turning Toward Each Other in a Time of Change

Austin Bar Association Offers Special Membership Rates