Austin Lawyer, November 2023 by Austin Bar Association

austinbar.org NOVEMBER 2023 | VOLUME 32, NUMBER 9

Get Your Tickets for the 2024 Austin Bar Foundation Gala!

egistration is now live for the 21st annual Austin Bar Foundation Gala. The gala will take place on Jan. 27, 2024, at the Four Seasons Hotel in Austin, 98 San Jacinto Blvd. Doors will open at 6:30 p.m. Tickets are on sale at a discounted rate of $250 until Dec. 31, 2023. Entries into the jewelry pull can be purchased for $50. Various sponsorship opportunities are available. Scan the QR code in the graphic on this page to get your tickets and view the different sponsorship opportunities. Since 2003, the Austin Bar Association has hosted an annual gala to raise funds for the Austin Bar Foundation, a 501(c)(3) nonprofit. The Foundation supports law-related community projects that provide legal assistance to those in need, offers legal education to the community at large, and supports attorney well-being. These law-related projects include the Diversity Fellowship Program, the Justice Mack Kidd Fund, the CANLAW clinic, the Law-Related Education in Schools Committee, Austin Adoption Day, and the Veterans’ Legal Clinics. Since its inception, the Foundation has

raised more than $1.4 million for Austin-area legal programs. Through the Austin Bar Foundation’s grant program, the Foundation furthers its mission to improve public awareness of the legal system, the administration of justice, and the delivery of legal services. Past recipients of Austin Bar Foundation grants include: CASA of Travis County, American Gateways, Volunteer Legal Services, Texas Accountants and Lawyers for the Arts, Austin Community Law Center, Austin Classical Guitar’s Juvenile Justice program, the Texas Fair Defense Fund, the Texas RioGrande Legal Aid, and many others. This year, gala funds will be used by the Austin Bar Foundation to support DEI-related legal services. Gala Sponsorship Opportunities: Benefactor Foundation Sponsor: $15,000 • Premium table (at front of stage) for 10 guests • Recognition in program • Recognition on website • Recognition in Austin Lawyer magazine • Recognition on signage at event • Recognition on slides at event

annual gala THE AUSTIN BAR FOUNDATION

THE FOUR SEASONS | AUSTIN

SCAN TO GET YOUR TICKETS! JANUARY 27, 2024

• Recognition on social media • Wine service during dinner • Valet parking for 10 guests • One guest hotel room for table host Foundation Sponsor: $10,000 • Table for 10 guests • Recognition in program • Recognition on website • Recognition in Austin Lawyer magazine • Recognition on signage at event • Recognition on slides at event • Recognition on social media • Wine service during dinner • Valet parking for 10 guests Table Sponsor: $7,500 • Table for 10 guests • Recognition in program • Recognition on website • Recognition in Austin Lawyer magazine • Recognition on signage at event • Recognition on slides at event • Recognition on social media • Wine service during dinner Half-Table Sponsor: $5,000 • Table for 6 guests

• Recognition in program • Recognition on website • Recognition in Austin Lawyer magazine • Recognition on signage at event • Recognition on slides at event • Recognition on social media • Wine service during dinner Other Sponsorship Opportunities: • Band Sponsor: $5,000 • Casino Party Sponsor: $2,500 • Live Auction Sponsor: $2,500 • Photo Booth Sponsor: $2,500 • Champagne Toast Sponsor: $2,500 • Bar Sponsor: $1,500 • Decorations Sponsor: $1,500 • Silent Auction Sponsor: $1,000 • Dessert Sponsor: $1,000 Please note: These sponsorship opportunities are limited. AL

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CONTENTS

AUSTINLAWYER NOVEMBER 2023 | VOLUME 32, NUMBER 9 AL AL

INSIDE

FEATURED ARTICLES

Get Your Tickets for the 2024 Austin Bar Foundation Gala!

IN EVERY ISSUE

Briefs

CONNECTIONS

Not Quite Ready for Its Close-Up: Generative AI in Legal Briefing

AYLA

ONLINE austinbar.org

Decriminalizing Mental Health in Travis County: Part 4

Federal Civil Court Update

Judge Karen Sage Sworn in as President of National Association of Women Judges

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

23 Judge Elisabeth Earle Elected to Texas Bar Foundation Board of Trustees 25

American Bar Association Names Richard Pena Among Influential Hispanic Activists and Legal Trailblazers

Learn the Crucial Aspects of Workplace Investigations

Austin Police to Begin Releasing Monthly Data Reports

DEPARTMENTS

President’s Column

Opening Statement

EMAIL billy@austinbar.org MAIL Austin Bar Association 712 W. 16th Street Austin, TX 78701 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar

29 Study Recommends New Standards for Public Defender Felony Caseloads 30

WATCH vimeo.com/austinbar

UT Study Finds Hospital Systems Can Artificially Inflate Prices

STREAM @AustinBarAssociation

ONLINE austinbar.org NEWS & ANNOUNCEMENTS

UPCOMING EVENTS

Renew Your Membership! Renewals have gone out for the 2024 calendar year. Remember, your membership must be paid by Jan. 1 to continue using benefits such as the attorney parking card at the Travis County Civil & Family Courts Facility. If you have any issues with your renewal, contact Billy Huntsman at billy@austinbar.org

NOV. 13

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NOVEMBER 2023 | AUSTINLAWYER

AUSTINLAWYER OFFICIAL PUBLICATION ALOF THE ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION

Justice Chari Kelly �� President Mary-Ellen King �� President-Elect Maitreya Tomlinson �� Secretary Judge Maya Guerra Gamble �� Treasurer Amanda Arriaga �� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

Sarah Harp �� President Emily Morris �� President-Elect Jenna Malsbary �� Treasurer Gracie Wood Shepherd �� Secretary Blair Leake �� Immediate Past President

Austin Lawyer

EXECUTIVE OFFICES

712 W. 16th Street Austin, TX 78701 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 DeLaine Ward....................... Executive Director Debbie Kelly.......................... Associate Executive Director Rachael K. Jones................... Editor-In-Chief Billy Huntsman...................... Managing Editor 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. District Court for the Western District of Texas 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 above. For editorial guidelines, visit austinbar.org in the “About Us” tab.

AUSTINLAWYER | NOVEMBER 2023

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PRESIDENT’S COLUMN

Stuffing and Statements Against Interest BY JUSTICE CHARI L. KELLY, THIRD COURT OF APPEALS

fter this year’s impeachment trial, you may find yourself sitting around the Thanksgiving table being peppered with questions from your family about the Texas Rules of Evidence. While you can’t be expected to explain all the nuances of hearsay over pumpkin pie, here are a few quick refreshers that you can use for GreatAunt Clara’s questions and your own trial practice.

at trial, the card would be admissible. Just remember that if you are not offering something for the truth, be immediately prepared to explain for what purpose you are offering it and why it is relevant. Also, if you are offering something that is hearsay, Rule 803 has a whopping 23 exceptions. If you take a few moments to read through the rule, I guarantee that you will be reminded of an exception that slipped your memory.

Hearsay and Relevance As we all remember from law school, hearsay is an out-of-court statement offered for the truth of the matter asserted. However, there are many reasons that something may be offered that aren’t for the truth of the matter asserted. Just because they aren’t being offered for the truth doesn’t make them irrelevant. For example, last month I celebrated my 20th wedding anniversary. If I offered an anniversary card from my husband where he wrote, “You’re the best wife in the world,” I would likely not be offering that card to prove that I am, in fact, the best wife in the world. I could be offering it to prove that my husband remembered our anniversary, as an exemplar of his handwriting, or simply to show that he still likes me. If those issues were relevant

Hearsay vs. Authentication Don’t object to hearsay when you really mean authentication, and vice versa. For example, “Objection, hearsay—we don’t know where this e-mail came from” is not a hearsay objection. Know your objection. If you think it is an out-of-court statement offered for the truth of the matter asserted, say “hearsay.” If you think that the e-mail may be a fake, or the other side didn’t lay the proper foundation, say “authentication.” Admission by Party Opponent vs. Statement Against Interest Admission by party opponent is a party’s own statement offered by the other side. It is categorically non-hearsay under Rule 801(e)(2) and can be considered for any purpose. The general rule of thumb is if the other side said it, it’s not hear-

say. Remember, you can’t offer your client’s own self-serving statements as an admission by party opponent. In contrast, statements against interest are an exception to the hearsay rule under Rule 803(24) and have different requirements. They must be “so far contrary to the declarant’s pecuniary or proprietary interest ... that a reasonable person would not have made the statement unless believing it to be true.” In a criminal case, if a statement is being offered under this exception as one that would likely subject the defendant to criminal liability, it must also be corroborated. (Additionally, under the Federal Rules of Evidence, the declarant must be unavailable.) The rules have now been restyled to drop the word “admission” from 801 due to the continued confusion over these different rules. See Tex. R. Evid. 801 cmt. to 2015 Restyling (“The term “admissions” is confusing because not all statements covered by the exclusion are admissions in the colloquial sense—a statement can be within the exclusion even if it “admitted” nothing and was not against the party’s interest when made.”) Impeachment vs. Refreshment You impeach when the witness said something different than before or when the witness tries to avoid a prior statement with

an “I don’t know.” You refresh when the witness doesn’t remember. For impeachment, remember the three Cs: commit, credit, and confront. Commit the witness to his statement at trial, credit the impeaching statement, and then confront the witness with the impeaching statement. For example, if a witness testified at trial that the traffic light was red, and in a prior deposition they said it was green, you don’t start with “Do you remember you said the light was green at your deposition?” Instead, do the following: • On direct, you testified that the light was red, correct? • But that hasn’t always been your testimony, has it? • You gave a deposition in this case? You swore to tell the truth? And you did tell the truth, didn’t you? • You recognize this as a copy of your deposition? Continued on page 31.

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BRIEFS New Members The Austin Bar welcomes the following new members: Holly Aspan Mary Barlow John B. Bender Mia Blankenship Jackeline Botnick Bradley Bowen Kadjia Brightwell Darlene Brown Mary Brown Morgan Buckner Clark Bullington Elizabeth Choate Derek Dees Kevin Eldridge Olivia Fosson Cristian Garcia Jikku Jacob John Lawrence Johnson John Knopic Mark Land Revlynn Lawson Rachel Lewis Katherine Macdonald Gigi Mattar Alissa McCain Amanda Merced Megan Molleur Michelle Molner Jacqueline Morales Elaine Nicholson Maria de Lourdes Ortiz Christina Owens Joan Peterson Bao Cuong Pham Robert Robinson Lindsee C. Rotz Skyler Samp Nicholas Slusher Ryan Sullivan Clayton Turner Jennifer Turner J. Watson F Burcu Yildiz

AUSTINLAWYER | NOVEMBER 2023

ABOVE (from left): Andrews, Davis, Gates, Kostura.

ON THE MOVE Congratulations to Ali Andrews, who has joined as senior counsel in Jackson Walker’s Austin tax practice. Andrews was previously chief of the Tax Litigation Division of the Office of the Texas Attorney General. Andrews’ practice focuses on state and local tax disputes, state tax audits, unemployment taxes, equal taxation, multi-state tax planning, as well as litigation regarding tax liabilities, unemployment benefits, breach of contract, probate, and family law. Congratulations to Caidi Davis, who has joined Rigby Slack Lawrence Pepper + Comerford PLLC as an associate. Davis’ practice involves complex commercial litigation in federal and state courts. Prior to joining Rigby Slack, Davis was an associate at Husch Blackwell LLP, where she worked in commercial litigation and Title IX issues. Congratulations to Matt Gates, who has joined Wittliff Cutter as senior counsel. Gates has tried and litigated IP and complex commercial disputes for more than a decade before such bodies as the International Trade Commission.

Congratulations to Judy Kostura, who was hired by Houston-based Sorrels Law for its newly opened Austin office. Kostura practices as a plaintiff’s personal injury lawyer in subrogation and liens. KUDOS Congratulations to Goranson Bain Ausley (GBA) for its inclusion in Texas Lawyer’s 2023 Watch List for “Firm Growth/ New Hires.” Since January 2023, GBA has reported growing from 36 lawyers in three offices to 45 lawyers in five offices in Austin, Plano, Dallas, Fort Worth, and Granbury. Congratulations to Jackson Walker LLP, which has been certified by Diversity Lab’s Mansfield Rule 2022-2023 Program. From July 2022 to July 2023, more than 240 law firms participated in the program, which is designed to improve diversity within law firm and legal department leadership.

SUBMIT A BRIEF If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing. Announcements should include all pertinent information, including firm name, address and contact information. Send submissions along with a high-resolution headshot to Austin Lawyer managing editor Billy Huntsman at billy@austinbar.org. AL

OPENING STATEMENT

Plagiarism

Some Examples and a New View BY WAYNE SCHIESS, TEXAS LAW | LEGALWRITING.NET

his column summarizes two kinds of legal-writing plagiarism and then presents a recent article that proposes a new view of plagiarism in law practice. Law-School Plagiarism In In re Zbiegien, a student who committed plagiarism in a law-school seminar paper was confronted, admitted the plagiarism, and accepted the law school’s penalty: a grade of F. Although he disclosed the plagiarism and penalty on his bar application, he was denied admission. He appealed to the Illinois Supreme Court, which granted him admission, stating, “He has been punished; he is ashamed. … [The law school] elected to give him a second chance. We, too, believe that this conduct will not be repeated.” Two justices dissented.1 Reported cases in which lawschool plagiarism results in bar discipline are rare, but here are two more that involved lawyers who went back to law school to get an LLM. In In re Harper, a lawyer was publicly censured for failing to disclose on his bar application that he had been dismissed from an LLM program for plagiarism.2 In In re Lamberis, a lawyer committed plagiarism in an LLM thesis and was publicly censured by the state bar. One dissenting justice would have suspended the lawyer’s license.3 Plagiarism in Court As those bar-discipline cases show, judges take academic plagiarism seriously. But many courts are just as serious about law-practice plagiarism. In United States v. Sypher, a lawyer’s brief stated the law governing ineffective-assistance-of-counsel claims, but the trial judge discovered that the statement had been 10

AUSTINLAWYER | NOVEMBER 2023

copied from Wikipedia. According to the judge, “such cutting and pasting, without attribution, is plagiarism.” The judge also reminded counsel that “Wikipedia is not an acceptable source of legal authority in the United States District Courts.”4 And in Columbus Bar Association v. Farmer, a lawyer took over a criminal appeal from another lawyer. He told the client that the appellate brief ﬁled by the previous lawyer “wasn’t worth the paper it was written on” and withdrew it. But he then ﬁled a brief the court described as “a nearly verbatim recasting of his predecessor’s brief.” His two-year suspension for plagiarism was upheld by the Ohio Supreme Court— though the suspension might be reduced to one year if he refunded all but $1,000 of the fee collected in the case.5 A New View of Plagiarism In a 2019 law review article, legal writing Professor Andrew Carter of Arizona State proposed a bold thesis: Plagiarism of previously written legal briefs by practicing lawyers should no longer be con-

sidered a violation of professional norms. (Academic plagiarism is a different matter, he says.)6 Professor Carter accurately reports that courts in the United States consistently enforce a strong professional standard against plagiarism in legal briefs (see the two cases above). However, although courts condemn plagiarism as “reprehensible”7 and “wholly intolerable,”8 they rarely provide a clear rationale for why plagiarism deserves such severe sanctions. Instead, they treat plagiarism as an inherently immoral act, assuming that its prohibition requires no further justification. In reality, Carter opines, the courts are mistaken. Plagiarism of a previously submitted legal brief violates no universally accepted moral code. Moreover, when we remove moral considerations, it becomes challenging to identify any benefits served by the courts’ prohibition of plagiarism. Carter then argues that if plagiarism of filed briefs were acceptable, society would see certain benefits. We could increase access to justice if high-volume, low-resource

practitioners acting in the public interest were allowed to plagiarize other lawyers’ briefs. In fact, virtually no cognizable harm would arise, and tremendous good might be achieved. Ultimately, Carter concludes, if we consider advantages gained through plagiarism, the argument is strongly in favor of regarding it as a legitimate method for crafting legal briefs.9 Carter’s thesis is controversial. What do you think? AL ENDNOTES

1 In re Zbiegien, 433 N.W.2d 871, 872, 877 (Minn. 1988). 2 In re Harper, 645 N.Y.S.2d 846, 84648. (App. Div. 1996). 3 In re Lamberis, 443 N.E.2d 549, 550, 553 (Ill. 1982). 4 United States v. Sypher, 3:09-CR00085, 2011 WL 579156, at *3 n.4 (W.D. Ky. Feb. 9, 2011), aff’d, 684 F.3d 622 (6th Cir. 2012). 5 Columbus Bar Association v. Farmer, 855 N.E. 2d 462, 465, 473 (Ohio 2006). 6 Andrew M. Carter, The Case for Plagiarism, 9 UC Irvine L. Rev. 531, 535 (2019). 7 Pagan Velez v. Laboy Alvarado, 145 F. Supp. 2d 146, 160–61 (D.P.R. 2001). 8 Dewilde v. Guy Gannett Publ’g Co., 797 F. Supp. 55, 56 n.1 (D. Me. 1992). 9 Id. at 554.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA GUEST COLUMN First-Time Homebuying 101 BY BONNIE NEEL, CANOPY MORTGAGE LLC Bonnie Neel is a licensed Residential Mortgage Loan Officer in California, Colorado, Georgia, Nevada, New Mexico, and Texas. NMLS# 1613742.

tell all my first-time homebuyers that a mortgage is essentially made up of four categories. If you play video games, it’s helpful to think of these categories as your player stats: How you “score” within each one of these categories influences everything from your down payment to your interest rate to your monthly payment. These four categories are called “The Four Cs”: credit, cash, capacity to repay, and collateral. Knowing where you stand in each category (and knowing how to boost one stat or compensate for a potential weakness in another) can make the process of applying for a mortgage loan and buying your first home feel either like an enjoyable Adulting 101 experience or like undergoing dental work without anesthesia. CREDIT Let’s start with credit: TransUnion, Experian, and Equifax are private companies that have proprietary algorithms with disproportionate power over your lives. These companies sell numeric codes that control whether you can get a job, an apartment, a right-swipe on Tinder, or a mortgage loan. The minimum credit score for a Federal Housing Administration (FHA) or Veterans’ Affairs (VA) mortgage is 580, but extra cash penalties are applied for risk posed by this low credit score. The next threshold is 620, the minimum score for most conventional loans and most down-payment assistance programs. But, again, some cash penalties can be applied for a score this low. Generally, 640 and above qualifies for mortgages without a cash penal12

AUSTINLAWYER | NOVEMBER 2023

ty; credit scores 740 and above are considered excellent credit scores. Most Americans have scores between 600 and 699. Mortgage lenders evaluate your credit scores, the debts listed on your credit report, and the minimum payments on those debts, as well as your payment history. Student loan repayments, even if in deferment or forbearance, are considered active debt and a percentage of their outstanding balance is tallied as part of your overall debtto-income (DTI) ratio. Mortgage lenders calculate your DTI as the sum of your minimum monthly debt payments plus your proposed monthly mortgage payment. Generally, mortgage lenders want your DTI ratio to be 50 percent or less of your gross monthly income. CASH Cash is our second category and covers the down payment and closing costs. The minimum down payment for FHA loans is 3.5 percent, and 5 percent for conventional loans. As a rule of thumb, expect closing costs to run from 1 to 3 percent of the sale price. Thus, if you are looking to buy a $500,000 home, you’ll need to have (at minimum) $40,000, or 8 percent of $500,000, for a down payment and closing costs. I tend to estimate high on all closing costs and fees because I don’t like surprises, but cash is the one category where homebuyers can negotiate. The only funds that must come out of your pocket (or a verified gift donor like a parent or down-payment assistance program) is the down payment amount. Your real estate agent can negotiate with the seller (or lender) to pay some or all of your closing costs, but 8 percent of your anticipated sale price is a good ballpark estimate for total cash needed to close.

CAPACITY TO REPAY Capacity to repay is where lenders document and verify your employment and income. Essentially, we want to know where you’ve lived, where you’ve worked, and what you’ve made for the last two years and verify that you will make the same amount or more for the next three years. If you are currently employed as a salaried or hourly employee with steady hours (even with an offer letter and your first paycheck yet to come), this process is fairly simple: We request proof of your gross annual income, divide it by 12, and use your gross monthly income for our DTI calculations. Bonus, overtime, and commission income must have been received for two years to be included. If you are self-employed, either Schedule C, S-Corp, C-Corp, or a more exotic tax entity, the process is more restrictive and complicated. Our calculations require two years of net taxable income (with some expenses added back in). If you are self-employed and considering buying a home, I highly recommend working with an accountant and a mortgage lender sooner rather than later. Let us buy the drinks and bring all your tax returns for the past two years. COLLATERAL Finally, collateral rounds out the “wild card” category in the mortgage process. Collateral is the property that secures the loan itself. Single-family homes are the norm. An experienced real estate agent is worth their weight in gold and can deter you from offering on a house with foundation issues that won’t pass appraisal and thus won’t qualify for financing. Condos pose an ongoing excit-

ing risk (thanks, Florida) because, unlike a single-family home, you are not purchasing a single structure attached to a single piece of land, but a small piece of a structure that is part of a bigger whole. Thus, the value of that piece is intrinsically tied to how the bigger whole is managed and maintained. Condos must undergo a questionnaire process to determine their “warrantability,” and this questionnaire evaluates the condo regime’s overall financial wellbeing, occupation mix, land use, management, and litigation viability for financing. A condominium’s warrantability status can be the difference between a five-percent down payment and market interest rate loan or a 20-percent down payment and subprime interest rate loan. The collateral category is known as the “wild card” category in mortgages because it is the one category that cannot be known before the homebuyer begins shopping. My goal is to make sure that my first-time homebuyers have all the surprises of their prospective loans removed by the time they begin their home searches. Once they are entertaining their options, dreaming of paint colors and furniture designs, the only thing they should be worried about is whether the property is good enough for them, not whether the loan will get approved if their offer is accepted. Buying your first home is both a wise and brave step. Regardless of the Federal Reserve’s interest rates or doom-and-gloom housing headlines, homeownership remains the best and most proven path toward wealth-building in America. The key is to be educated and strategic, with experienced and trustworthy partners in your journey. AL

UPCOMING EVENTS THURSDAY, NOV. 16 AYLA Docket Call Estelle’s 400 Colorado St. 5:30 – 7:00 p.m. Sponsored by Consilio

AUSTIN YOUNG LAWYERS ASSOCIATION

24th Annual AYLA Evening with the Judiciary

24th Annual

Evening Judiciary WITH THE

he Austin Young Lawyers Association held its 24th annual Evening with the Judiciary at the Austin Club on Thursday, Sept. 21, 2023. Each year, this reception provides AYLA members with an opportunity to share an evening of great food and even better conversation with local, state, and federal judges. AYLA members who took advantage of this opportunity were treated to an entertaining evening with judges from courts of all levels. AYLA extends a special thank you to all of the judges who attended, and to all event sponsors for making this successful event possible! AL

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Law-Related Education Committee Program Seeks Volunteers he Austin Bar/AYLA Law-Related Education Committee invites you to volunteer your time

and voice to make a difference with middle-school students! In partnership with Austin-area middle-school districts, the

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committee is seeking judges and attorneys to present one-hour lessons based on the book series Taming Texas. The lessons teach

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seventh-grade students how the state’s court system fits into the larger picture of Texas history, from the days of Stephen F. Austin to the present. For more information or to sign up to volunteer, please contact Samantha McCoy at smccoy@ thompsoncoe.com. AL

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NOVEMBER 2023 | AUSTINLAWYER

FEDERAL CIVIL COURT UPDATE

Jason LaFond is an Austin-based appellate litigator with significant experience before the Fifth Circuit. He is a Senior Counsel at Yetter Coleman, LLP.

The following are summaries of opinions issued by the Fifth Circuit in September 2023. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

> MAGISTRATE JUDGE REFERRALS: Undisclosed relationship between magistrate judge and plaintiff’s lead counsel may vitiate defendant’s consent to trial before the magistrate. IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal Dist., No. 22-30398, 2023 WL 6151640 (5th Cir. Sept. 21, 2023). The Federal Magistrate Act of 1979 allows Article III judges to refer cases to non-Article III magistrate judges upon the consent of the parties. Without consent, referral would be unconstitutional. An Article III judge may vacate a referral under extraordinary circumstances shown by a party. IFG Port Holdings, LLC, and Lake Charles Harbor & Terminal District consented to have their contract dispute tried before a magistrate judge. The magistrate judge found for the plaintiff, awarding more than $100 million in damages. After judgment, the defendant learned—allegedly for the first time—that the magistrate judge was longtime friends with the 14

AUSTINLAWYER | NOVEMBER 2023

lead trial lawyer for the plaintiff; the lawyer had been a groomsman in the judge’s own wedding, and the judge officiated the wedding of the lawyer’s daughter three months before the lawsuit was filed. Early in the case, the magistrate judge disclosed that another daughter of plaintiff’s counsel was a law clerk for the judge but would be screened off the case. The defendant alleges that only after judgment did it learn of the additional connections between the judge and the plaintiff’s counsel. The defendant filed a motion with the district court to vacate the referral and the judgment and to conduct discovery into the relationship between the magistrate judge and the plaintiff’s counsel. The district court denied the motion, reasoning that the defendant was not coerced into consent and the relationship as alleged would be no basis for recusal. The Fifth Circuit reversed. Although several factors may be considered in determining whether extraordinary circumstances justify vacating referral, the court held that the lack of valid consent requires vacating because valid consent is a constitutional imperative. In concluding that the district court abused its discretion, the Fifth Circuit explained that lack of coercion is necessary but not sufficient to make consent valid—valid consent must also be knowing and intelligent. And it is reasonable to conclude that the defendant would not have consented to referral had it known of a close relationship between the magistrate judge and the plaintiff’s counsel. The court further rejected reliance on the recusal statute when the issue is whether nondisclosure affected consent to referral. The court remanded for further fact-finding on the relationship between the magistrate judge and the plaintiff’s counsel and on the defendant’s prior knowledge, if any, of that relationship. JURISDICTIONAL DISCOVERY SANCTIONS: District court did not abuse its discretion in dismissing claims of LLC

with prejudice as a sanction for LLC’s failure to be forthcoming regarding its members’ citizenship. Ben E. Keith Co. v. Dining Alliance, Inc., No. 22-10340, 2023 WL 5921644 (5th Cir. Sept. 12, 2023). Ben E. Keith Company, a Texas citizen, brought state-law claims in federal court against Dining Alliance, Inc., a Massachusetts citizen. Prior to the litigation, however, Dining Alliance had converted to an LLC, which shares the citizenship of each of its members. Despite the pre-litigation conversion, Dining Alliance answered as “Dining Alliance, Inc.” and represented that it was a Massachusetts citizen. Dining Alliance referred to itself alternatively as “Inc.” and “LLC” throughout the litigation. Dining Alliance brought third-party claims against Foodbuy, LLC—a citizen of Delaware, Georgia, and North Carolina—under the name Dining Alliance, Inc. Dining Alliance later corrected its pleadings but still failed to plead the LLC’s complete citizenship and make proper jurisdictional allegations. After Foodbuy moved to dismiss Dining Alliance’s third-party claims for lack of jurisdiction, the district court ordered each party to file a document establishing its citizenship for diversity purposes, supported by affidavit or declaration, and warned that failing to comply could result in dismissal. Invoking its inherent power to protect the judicial process, the district court dismissed Dining Alliance’s claims with prejudice as a sanction for its repeated failure to comply fully with the district court’s requests and its earlier conduct hiding the ball regarding its citizenship. The Fifth Circuit affirmed. First, the court rejected Dining Alliance’s argument that the district court lacked jurisdiction to dismiss with prejudice, which is a ruling on the merits. The court held that the district court properly relied on “collateral jurisdiction”—the power of a federal court to consider issues collateral to the merits, even

where it lacks subject matter jurisdiction—to issue a case-dispositive sanction. Collateral jurisdiction covers matters outside claims’ legal and evidentiary substance. The court reasoned that the case-dispositive sanction here did not require the district court to assess the substantive merits of any claim. Next, the court clarified the circumstances that justify a district court’s imposing case-dispositive sanctions under its inherent power to protect the judicial process and the appellate standard of review. A district court must find “bad faith or willful abuse” of the judicial process to justify the sanction, but prejudice to the opposing party is not required. On appeal, the court reviews the district court’s invocation of its inherent authority to protect the judicial process and the severity of the resulting sanction for abuse of discretion. Finally, the court concluded that the district court did not abuse its discretion in finding willful abuse by Dining Alliance or in declining to impose lesser sanctions. AL

THIRD COURT OF APPEALS CIVIL UPDATE

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board-certified in civil appellate law by the Texas Board of Legal Specialization and owner of Laurie Ratliff LLC.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during September 2023. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of Oct. 9, 2023.

> FAMILY LAW: Court holds fit-parent presumption did not apply in challenged modification proceeding. Johnson v. Kimbrough, No. 0322-00100-CV (Tex. App.—Austin Sept. 20, 2023, no pet. h.). In a modification proceeding, a child’s maternal great-grandmother (Johnson) and father both sought appointment as sole managing conservator. The trial court limited Johnson to presenting evidence relating to the fit-parent presumption. The trial court appointed the father as the sole managing conservator and Johnson as possessory conservator. The “fit-parent presumption” is applicable when determining conservatorship in the first instance and provides that one or both parents shall be appointed managing conservator unless appointment would significantly impair a child’s physical health or emotional development. According to the court of appeals, the fit-parent presumption applies in modifications only if

the parent seeking modification was appointed managing conservator in the order sought to be modified. Here, the father was not appointed managing conservator in the original or existing orders. Thus, the court held that the fit-parent presumption did not apply. The court further held that the trial court’s application of the “fit-parent” standard instead of the “best-interest” standard necessarily informed the factfinding function and prevented the court from determining if the error was harmful. The court reversed and remanded. ADMINISTRATIVE LAW: Court affirms trial court’s denial of jurisdictional challenge. Tex. Dep’t of State Heath Servs. v. Sky Mktg. Corp., No. 03-2100571-CV (Tex. App.—Austin Sept. 28, 2023, no pet. h.) (mem. op.). Appellees sued the department and its commissioner following the commissioner’s adoption of amendments to the controlled-substances schedules relating to THC and marijuana extracts. The trial court denied the department’s plea to the jurisdiction and granted a temporary injunction. As to the department’s challenge to appellees’ standing, the court of appeals observed that the department has regulatory authority concerning the hemp industry and can impose penalties. Appellees alleged that enforcement of the department’s amended definitions will harm their businesses. Thus, appellees had standing. As to appellees’ ultra vires claim, the court observed that the commissioner lacked authority to add substances to the schedules that the Texas Legislature deleted. Because the commissioner modified the schedules after the legislature removed hemp and hemp-derived products from the controlled-substances schedules, any modifications had to comply with the statute that required the commissioner to make certain findings and provide written notice. Thus, appellees properly pleaded an ultra vires claim. The court affirmed.

ADMINISTRATIVE LAW: Court upholds probated nursing license suspension. Walkington v. Tex. Bd. of Nursing, No. 03-22-00658-CV (Tex. App.—Austin Sept. 28, 2023, no pet. h.) (mem. op.). During a spinal-block procedure, Walkington, a certified registered nurse anesthetist, injected TXA, a medication to slow bleeding, into the patient’s spine instead of the local anesthetic. The patient suffered an anoxic brain injury. After a disciplinary hearing, the board imposed a twoyear probated suspension of Walkington’s license. The trial court affirmed the board’s order. Walkington challenged the board’s finding that she could not identify where the TXA vial was located during the procedure. According to the court of appeals, applying the highly deferential standard of review, evidence could preponderate against the agency’s decision and still amount to substantial evidence. The court concluded that, with conflicting

testimony from Walkington, the board could have credited her testimony that she could not remember the exact location of the TXA vial. The court upheld the board’s finding that, to meet the standard of care, Walkington had to either check the vial’s label herself or ask the anesthesia tech to read the label to her. Walkington also challenged the board’s imposition of a two-year license suspension as not complying with its own rules for determining sanctions. The court held that Walkington’s motion for rehearing failed to preserve the issue. The court affirmed. AL

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THIRD COURT OF APPEALS CRIMINAL UPDATE

Zak Hall is a staff attorney for the Third Court of Appeals. The summary that follows represents the views of the author alone and does not reflect the views of the court or any of the individual Justices on the court.

The following is a summary of a selected criminal opinion issued by the Third Court of Appeals from May 2023. The summary is an overview; please review the entire opinion. The subsequent history is current as of Oct. 1, 2023.

> PUNISHMENT ENHANCEMENTS – OUT-OF-STATE CONVICTIONS: Enhancement of defendant’s sentence using out-of-state conviction was legal. Smith v. State, No. 03-2100368-CR (Tex. App.—Austin May 4, 2023, no pet.) (mem. op., not designated for publication). Smith pleaded guilty to one count of engaging in organized criminal activity and two counts of forging financial instruments. He also pleaded true to an enhancement paragraph alleging a 1997 Georgia conviction for the non-state-jail felony offense of theft by receiving stolen property. Following a punishment hearing, the trial court sentenced Smith to 17 years’ confinement. On appeal, Smith contended that his sentence was illegal because his 1997 Georgia conviction did not qualify as an enhancing conviction under subsections 12.41(1) and 12.42(a) of the Texas Penal Code. Consequently, in Smith’s view, his assessed punishment of 17 16

AUSTINLAWYER | NOVEMBER 2023

years’ confinement exceeded the statutorily permissible range of 10 years’ confinement for a third-degree felony and was therefore unlawful. The court disagreed. The court first resolved a dispute between the parties regarding the proper standard of review, noting that the correct standard was de novo because “whether an out-of-state offense constitutes a felony for purposes of enhancement is a question of law.” Contrary to the State’s contention, Smith was not challenging the sufficiency of the evidence supporting the trial court’s finding that the enhancement paragraph was true. Instead, he was challenging the legality of his sentence. The court then addressed the merits of the issue by looking to the relevant statutes. Subsection 12.41(1) of the Penal Code provides that a non-Penal Code conviction, such as an out-ofstate conviction, is classified as a third-degree felony if imprisonment in a penitentiary is “affixed to the offense as a possible punishment.” Such a conviction “may be used for enhancement of punishment pursuant to [section] 12.42,” which provides in relevant part that “if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony,” then “on conviction the defendant shall be punished for a felony of the second degree.” The court observed that “[i]n determining the classification of a prior conviction under section 12.41, an appellate court may take judicial notice of the laws of another state, even where the text of those laws does not appear in the trial record.” Under Georgia law, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” Smith’s offense carried imprisonment in a penitentiary as a possible punishment, which made it a felony under Georgia law. As a result, the offense was

a third-degree felony for enhancement purposes under subsection 12.42(a), and Smith’s sentence was properly enhanced. Because the sentence did not exceed the statutory maximum of 20 years for a second-degree felony, it was not illegal. Smith’s arguments to the contrary were unavailing. He asserted that the Georgia offense of theft by receiving stolen property was “substantially similar” to the Texas offense of theft, which is classified as a misdemeanor or state jail felony unless the value of the stolen property exceeds $30,000. Smith contended that because the record was silent as to the value of the stolen property in the Georgia case, the State failed to demonstrate that the conviction in that case was for a felony. However, the relevant inquiry under Subsection 12.42(a) is not whether the offenses are “substantially similar” but whether the other state had chosen to classify its offense as a felony, which Georgia had. Finally, Smith argued that be-

cause the record affirmatively reflected that the enhancement itself was improper, the State was not relieved of its burden to prove the prior conviction alleged for enhancement. The court noted that this argument conflated a claim of an illegal sentence with an evidentiary-sufficiency challenge. Moreover, to the extent that Smith raised such a challenge, the enhancement paragraph did not show on its face that his Georgia conviction was for a misdemeanor, and there was nothing in the record before the court to indicate that the allegation was of an offense for which imprisonment in a penitentiary was not a possible punishment. Thus, that argument was also without merit. The court affirmed the trial court’s judgment. AL

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Not Quite Ready for Its Close-Up: Generative AI in Legal Briefing BY JUSTICE ROSA LOPEZ THEOFANIS, THIRD COURT OF APPEALS

Prior to being elected to the Third Court of Appeals, Justice Theofanis served as an assistant district attorney for Travis County. She began her career as an assistant county attorney for Travis County and is a graduate of The University of Texas School of Law, where she was awarded an Endowed Presidential Scholarship in law.

nspiring dismay in litigators nationwide, in the now-infamous case of Mata v. Avianca, two New York lawyers submitted “non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT” to the federal district court and continued to “to stand by the fake opinions after judicial orders called their existence into question.”1 The public release of ChatGPT in November 2022 brought massive attention to “generative” artificial intelligence tools that can generate texts in response to prompts.2 Only three months later, the offending submission in Mata

was filed, and one of the sanctioned attorneys explained that he “had not previously used ChatGPT” and only “became aware of it through press reports and conversations with family members.”3 The spectacular and well-publicized failure of the attorney’s reliance on ChatGPT in Mata raised awareness of the potential uses and misuses of artificial intelligence tools in legal drafting and stimulated discussion by legal practitioners, theorists, and judges about the impact on the law of the seemingly inevitable further development of generative technology.4 The judge in Mata relied upon analog justifications to support an order of sanctions, citing Federal Rule of Civil Procedure 11 and holding that “existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.”5

At least one federal district judge has introduced a technology-specific requirement that attorneys “together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence … or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.”6 These approaches are consistent insofar as they affirm that advancements in technology do not lessen or alter fundamental standards governing attorneys and the legal profession, such as not filing baseless pleadings and candor to the tribunal. While these guideposts endure, along with a certainty that generative artificial intelligence will increasingly play a role in legal

practice, much remains to be told about how these tools will develop and be used moving forward. AL ENDNOTES

1 M ata v. Avianca, Inc., No. 22-cv-1461 (PKC), 2023 U.S. Dist. LEXIS 108263, at *2 (S.D.N.Y. 2023). 2 Kevin Roose, ChatGPT Kicked off an A.I. Arms Race, NEW YORK TIMES (Feb. 3, 2022), https://www.nytimes. co m / 2 0 2 3 / 0 2 / 0 3 /t e c h n o l o g y/ chatgpt-openai-artificial-intelligence. html. 3 Mata, 2023 U.S. Dist. LEXIS 108263, at *2-3, *20. 4 See e.g., Hon. Xavier Rodriguez, Artificial Intelligence (AI) and the Practice of Law, 24 SEDONA CONF. J. 783 (forthcoming 2023), https:// thesedonaconference.org/ sites/ default/files/announcements/Artificial-Intelligence-and-the-Practice-of-Law-Xavier-Rodriguez.pdf. 5 Mata, 2023 U.S. Dist. LEXIS 108263, at *1. 6 https://www.txnd.uscourts.gov/ judge/judge-brantley-starr.

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Decriminalizing Mental Health in Travis County: Part 4 This is the fourth in a series of eight articles about the Travis County Forensic Mental Health Project.

he Travis County Forensic Mental Health Project delivered its recommendations to the Travis County Commissioners in March 2023. The goal of these recommendations is to provide solutions other than jail to address mental health and substance abuse disorders in the county. Recommendation #3 The Project’s third recommendation is to establish a range of housing options. “We know that individuals with stable housing are less likely to interact with the criminal legal system,” the recommendations document says. The Sobering Center conducted an analysis of criminal-trespass data in Travis County and found roughly half the bookings with criminal trespass as the highest charge received mental health services at some point during their stay in jail in fiscal year 2020. “Of that same population, 73 percent reported experiencing homelessness at the time of their booking,” the document says. Travis County’s Health and Human Services is currently working on a Supportive Housing Initiative Pipeline, using $110 million from the federal American Rescue Plan Act. “Through a total of 11 projects, the pipeline will establish a total of 3,082 [housing] units that include site partners by 2026,” the document says, going on to define “site partners” as “groups building additional units with different funding.” The document cites statistics from the Bureau of Justice in 2005. Of 404,638 prisoners who were released from prisons in 30 states: • 43.4 percent were rearrested within one year; • 67.8 percent were rearrested 20

AUSTINLAWYER | NOVEMBER 2023

within three years; and • 76.6 percent were rearrested within five years.1 Recidivism can be reduced by providing affordable housing, the Project says. Because people reintegrating into society with criminal charges and/or mental health disorders are often declined housing, the ideal housing system for these people is “low-barrier housing.” “The Housing Initiative Pipeline awarded the Other Ones Foundation in February 2023 [$3 million in] funding to build a 200-unit low-barrier emergency shelter called Esperanza Community,” the document says. Ten of these 200 units will be specifically “dedicated to sheltering individuals involved with the Downtown Austin Community Court.” More research and data are needed to determine how many The Project recommends establishing three housing pilot programs. One of the three would be a “Supported Bridge Shelter”, which would involve The Other Ones’ Esperanza low-barrier shelters are needed, Community, pictured here. the document says. “This housing is referred to as a diversion center—to permanent federal guidelines.” aTravis shelter because it isMental not intendCounty Forensic Health Project February 2023 ed to be a permanent solution for no-barrier housing solutions,” the “Permanent supportive housing” for individuals who have people, but instead a bridge to document says. released and fromdevelopmental jail with men- disability their permanentbrain home,” the(TBI),been The (IDD), Housing such next as traumatic injury intellectual andInitiative Pipetal on health conditions is also a gap from linejailhas plans to add a variety document “By calling specifically this dementia.says. When focusing individuals being released with mental health in Travis County. These individuof such affordable housing units option a shelter, it allows individuconditions, there is an added layer of difficulty finding permanent supportive housing; als to remain on the housing need als benefit from a housing continthroughout Travis County, the consequently, individuals housing continuum with bridge uum,from starting with bridge shelterstarting list based on thethese Department of benefit document says. shelter for immediate from jail (or a diversion center) to permanent for immediate release from jail—orno-barrier Housing andrelease Urban Development To housing facilitatesolutions. the success of a Table 6. Housing Pilot Recommendations Type of Housing Supported Bridge Shelter Emergency Shelter (respite included) Higher quality boarding homes

Pilot time frame 3-years

Number of people

Focus population

Notes

100

Include funding for misc. needs like ID, rental assistance. Embedded peer specialists

3-year

Individuals with mental health and/or substance use diagnoses in need of interim shelter when released from jail or diversion I/DD, TBI, Dementia, and other brain health diagnoses including dual diagnosis

3-year

8-10 homes

Same population who currently use boarding homes

Include funding for misc. needs like ID, rental assistance. Embedded peer specialists Contracted out and structured payments for incentivization to increase quality. Include improved relationship with MCOT and clear crisis planning

Table from the Travis Forensic Healthcenter Project PDF, /shorturl.at/belJ5, pagestrategy), 23. To facilitate the County success of a Mental diversion (i.e.,https:/ provide a viable exit the planning

team recommends establishing three housing pilot programs to address a portion of the housing needs and leverage existing County and City housing planning and investment. Table 6 lists

Travis County diversion center in providing a “viable exit strategy,” the Project recommends establishing three housing pilot programs “to address a portion of the housing needs and leverage existing city and county housing planning and investment.” The first of these pilot programs is the “Supported Bridge Shelter.” This pilot program would take place over three years and would treat 100 people, focusing on individuals with mental health and/or substance use diagnoses in need of interim shelter when released from jail or the diversion center. The pilot program would also provide funding for miscellaneous needs, such as obtaining identification documents, rental assistance, and “embedded peer specialists.” The Other Ones’ Esperanza Community would be involved in this pilot program and would require $1.03 million in staffing costs per year. For this first pilot program, the Project also suggests purchasing a hotel within Travis County that could provide up to 120 rooms with an “opening bid of $3.5 million.” The second pilot program is the “Emergency Shelter (respite included).” This program would take place over three years; would treat 30 people, focusing on individuals with intellectual/developmental disorders, dementia, and other brain-health diagnoses, including dual diagnoses; and would also include funding for the miscellaneous needs listed above. This pilot program would require the construction of a “module emergency hospital” with an estimated cost of $1.8 million plus $1.19 million annually for staffing costs. The third and final pilot program is the “Higher Quality Boarding Homes.” This program would take place over three years and would provide eight to 10 homes treating the “same population who currently use boarding homes.” These boarding homes would be “contracted out” and receive “structured payments for incentivization to increase quality.” Each of the boarding homes would receive a monthly stipend of $20,300 as “incentivization.” “Boarding homes in Texas have a

history of poor outcomes, especially for individuals with complex mental health, brain health, and criminal histories,” the document says.2 The monthly stipend would be used for “case management, supplemental food funding, standard housing maintenance like cleaning and pest control, and a program director employed by the county to implement and monitor the pilot,” the document says. “The county and the boarding home could enter into an agreement that, in exchange for the monthly stipend, the home would agree to not use the resident’s ex-

isting aid or require them to make the boarding home representative payees, ensure all residents have a robust crisis response plan, improve relations with Integral Care’s Mobile Crisis Outreach Team (MCOT) and the Expanded Mobile Crisis Outreach Team (EMCOT), and other items the county deems necessary to ensure safety, wellbeing, and dignity for all residents.” “The project team emphasized that these recommendations are insufficient to address the ongoing, growing need for a continuum of housing in Travis County, but represent a reasonable next

step,” the document says. If the three-pilot-program scenario is not adopted, the Project recommends starting with 50 units of each type of housing represented in the pilot programs. These units should still have low- to no-entry barriers to obtain housing based on criminal history, mental health, and brain health disorders. AL ENDNOTES

1 https://bjs.ojp.gov/content/pub/pdf/ rprts05p0510.pdf. 2 http://boardinghome.org/wp-content/uploads/2013/12/BH-Boarding-Houses-Report-01-09.pdf.

NOVEMBER 2023 | AUSTINLAWYER

Judge Karen Sage Sworn in as President of National Association of Women Judges

t the Oct. 5 annual conference of the National Association of Women Judges, 299th District Court Judge and Austin Bar member Karen Sage was sworn in as president. Sage was sworn in by retired Third Court of Appeals Justice Bea Ann Smith. According to the NAWJ announcement, Sage is the first Texan president of the organization in 20 years. NAWJ’s mission is to promote the judicial role of protecting the rights of individuals under the rule of law through strong, committed, diverse judicial leadership; fairness and equality in the courts; and equal access to justice. Judge Sage was elected to the 299th District Court, a felony

criminal court, in 2010. Before taking the bench, she practiced both civil and criminal law at the state and federal level. She began her legal career in 1991 as a commercial litigator for O’Melveny & Myers. Soon after, she moved into the public sector, serving first as chief counsel to Mayor Richard Riordan of Los Angeles, then as a judicial clerk to the Hon. Kim McLane Wardlaw in the Central District of California. She spent the next phase of her career as an assistant U.S. attorney in the Eastern District of New York, specializing in white-collar crime. Coming to Texas, she became a state assistant district attorney in Travis County, where she pioneered the county’s specialty docket for mental health. Beyond her legal practice, Judge

299th District Court Judge Karen Sage (left) being sworn in as president of the National Association of Women Judges by retired Third Court of Appeals Justice Bea Ann Smith (right).

Sage has taught courses on the practice and ethics of criminal law at Duke University and The University of Texas. She is a member of the

Austin Bar Association, the American Bar Association, and the Federal Bar Association, and a Fellow of the Texas Bar Foundation. AL

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Judge Elisabeth Earle Elected to Texas Bar Foundation Board of Trustees

udge Elisabeth Earle, who presides over Travis County Court at Law #7, has been elected to the Board of Trustees of the Texas Bar Foundation. Earle has served as presiding judge since January 2003. Earle also founded the county’s DWI Court in 2008 and continues to also serve as its presiding judge.

The court’s mission is to enhance public safety by providing an intensive, judicially supervised program of team-based counseling, treatment, and monitoring of alcohol and substance DWI offenders. In recognition of her work in this area, Earle received the DWI Court Advocate Award from the Texas Criminal Justice Coalition; was recognized in Washington, D.C., where she was awarded the MADD National President’s Award for Criminal Justice for her role in the implementation of DWI courts nationally; and subsequently received the prestigious MADD Outstanding Judiciary Service Award. In 2011, Earle was voted by her peers to serve as Local Administrative Statutory County Court at Law Judge and continues to serve in that role. In 2022, Judge Earle served as chair of the State Bar of

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VLS Recognizes Outstanding Attorneys with Pro Bono Awards

TOP LEFT: Kara O’Shaughnessy (center) won the Susan P. Burton Award. Pictured with O’Shaughnessy are VLS Executive Director Alisa De Luna (left) and VLS Director of Pro Bono Services, Hollie Toups (right). TOP RIGHT: Toni Blazi won the J. Chrys Dougherty Award. BOTTOM: The Law Office of Jason Wright won theJoseph H. Hart Award. (L-R): Jason Wright, Katie Valle, Ben Hernandez, Jaclyn Bodarek.

olunteer Legal Services of Central Texas (VLS) has announced the winners of its 2023 pro bono

awards. The Susan P. Burton Award is given annually to a volunteer attorney who has been licensed for five years or less and who has demonstrated exemplary pro bono service. The winner of the 2023 Susan P. Burton Award is Kara L. O’Shaughnessy with Gray Becker PC. O’Shaughnessy’s practice focuses on civil litigation, estate planning, real estate, probate, and wills. She received her undergraduate degree from The University of Texas at Austin in 2001 and her JD from St. Mary’s University School of Law in 2018. The J. Chrys Dougherty Award is given annually to a volunteer attorney for exemplary dedication 24

AUSTINLAWYER | NOVEMBER 2023

and commitment to the principle of access to justice for all people regardless of income. The winner of the 2023 J. Chrys Dougherty Award is Anthony “Tony” Blazi with Blazi Mediation. Blazi has practiced for more than 42 years and was formerly a trial attorney, trying more than 60 cases as first-chair counsel. He is a graduate of St. Mary’s University School of Law. The Joseph H. Hart Award honors a firm that demonstrates integrity and commitment to providing legal assistance for the less fortunate—principles that former 126th District Court Judge Joe Hart has demonstrated throughout his legal and judicial career. The winner of the 2023 Joseph H. Hart Award is the Law Office of Jason Wright, which focuses on divorce proceedings, family law, and school law. AL

Introducing Jillian Garza, Austin Bar’s New Intern

he Austin Bar is happy to introduce our new intern, Jillian Garza! Garza is currently an undergraduate student at The University of Texas at Austin and is on track to graduate in 2025. She is attending UT on a full scholarship and is pursuing a B.S. in political communication with a minor in communication and social change. Garza says she is interested in going to law school but is currently unsure which branch of law she would like to focus on, although international law does interest her. Garza will help the Austin Bar’s communications department in the production of Austin Lawyer, the Council of Firsts podcast, and website upkeep. Additionally, Garza will help the Bar’s CLE and events department in planning and executing CLE events, sending emails to members, and assisting in the production of the annual Austin Bar Foundation Gala. Prior to joining the team at the Austin Bar, Garza was an intern in the Texas Workforce Commission’s Civil Rights Division. Before that, she was an intern in the Texas Crimestoppers/Border Security Grants divisions of the Office of the Governor. She has also previously worked for the Dolph Briscoe Center for American History and the Law Office of Ernesto Gamez, Jr. in Brownsville. At UT, Garza has been involved with Minority Women Pursuing Law, an organization that gives female minority students opportunities to pursue law-related education. She has participated in mock trials put on by the Texas Phi Delta Phi pre-law honor society, and has also served on the Fundraising Committee of the UT Senate. The Austin Bar is very happy to have Jillian Garza on board and is sure you’ll love getting to know her! AL

Applications Are Open for the 2024 AYLA/Austin Bar Leadership Academy!

he AYLA/Austin Bar Leadership Academy assists Austin-area lawyers in making a difference in our community and in service to the Bar. A class of lawyers from the Austin Bar and AYLA will be selected from applications submitted by lawyers of all areas of practice, firm size, and levels of experience. The Leadership Academy will begin with a retreat on Jan. 12, 2024, followed by a series of lunchtime presentations during which participants will network with and enjoy presentations by leaders in various areas of practice and in

the community. The course will culminate with the organization of a class project. The enrollment fee is $300 for government employee and public interest attorneys and $400 for all other attorneys. The fee covers the retreat, meetings, meals, and materials. Scholarships may be available to those who need assistance. Scan the QR code to apply. The deadline is Friday, Nov. 17, 2023. Please direct any questions to Leadership Academy Committee co-chairs Gracie Wood Shepherd (gwshepherd@fmltlaw.com) and Sarah Harp (sarah-harp@utulsa. edu). AL

American Bar Association Names Richard Pena Among Influential Hispanic Activists and Legal Trailblazers Award from the Austin Bar. The Diversity Award honors Joseph C. Parker, Jr., the first African American president of the Austin Bar Association, who has spent his life and work championing the equal, ethical, and fair treatment of all people and raising awareness of the need to diversify the Austin legal community. The award is

ormer Austin Bar and State Bar of Texas President Richard Pena has been named one of the most influential Hispanics in law by the American Bar Association (ABA). In celebration of Hispanic/ Latino/a/x Heritage Month in September, the ABA Center for Diversity and Inclusion released a list honoring 21 Hispanic activists and trailblazers in the legal profession across the nation. Included among these deserving individuals is Austin Bar’s own Richard Pena. Pena was the first Hispanic Austin Bar president, serving from 1990 to 1991. Before that, he served as the inaugural president of the Capital Area Mexican-American Lawyers (now known as the Hispanic Bar Association of Austin) from 1988 to 1989. From 1998 to 1999, Pena served as the first Hispanic president of the State Bar of Texas. From 2017 to 2021, Pena served as chair of the ABA Commission on Hispanic Legal Rights and Responsibilities. This commission focuses on developing and supporting initiatives and research to educate lawyers on how best to serve, promote civic responsibility within, and address the key legal challenges facing Hispanic communities in the United States. In 2018, Pena received the Joseph C. Park, Jr., Diversity

To learn more about Pena and his career, listen to his episode of Council of Firsts, the Austin Bar’s podcast. There is also an episode featuring Pena and the other co-founders of the Capital Area Mexican-American Lawyers. To view the ABA’s full list of Hispanic activists and legal trailblazers, visit https://shorturl.at/c2379. AL

presented to a firm or an individual who has led the way in bringing diversity to Austin’s legal community and who exemplifies all that Parker stands for. In 2020, Pena received the ABA Spirit of Excellence Award for his excellence in the legal field and dedication to promoting diversity in the profession.

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Learn the Crucial Aspects of Workplace Investigations BY NATALIE LYNCH, LYNCH LAW FIRM, PLLC

n the complex labor and employment law world, the importance of workplace investigations cannot be overstated. Understanding why workplace investigations matter is fundamental for attorneys specializing in this field. These investigations have legal implications and impact the financial well-being of both employers and employees. Title VII and Financial Implications First and foremost, workplace investigations are pivotal because of Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. It is generally assumed to include caste, gender expression, and sexual orientation. It is the cornerstone of employment-based federal anti-discrimination laws and forms the basis for countless employment lawsuits. To be clear, Title VII mandates an investigation followed by a fix, rather than just a fix. The financial ramifications of Title VII violations can be substantial. For employers, the financial penalties for noncompliance vary depending on the company’s size. Here’s a breakdown of penalties: • For employers with 15-

AUSTINLAWYER | NOVEMBER 2023

100 employees, the limit is $50,000. • For employers with 101200 employees, the limit is $100,000. • For employers with 201500 employees, the limit is $200,000. • For employers with more than 500 employees, the limit is $300,000. These penalties can significantly strain a company’s finances, making it imperative that attorneys ensure their clients conduct thorough workplace investigations to prevent such violations. Prevention by a third-party investigator is generally less than $2,000 per participant. Back Wages and Liability Beyond the penalties above, Title VII violations can result in back wages owed to aggrieved employees. Workplace investigations may be crucial for determining whether such wages are due and mitigating the potential liability for employers. Attorneys must recognize that these investigations are about litigation avoidance and protecting their clients from financial burdens. Recent Amendments and Their Implications Attorneys must also stay informed

How to Litigate a Workplace Complaint Employee complains to leaders re: harassment, discrimination, or hostile work environment.

Litigation/General Counsel, Owner, or HR

Now What?

(who aren't conflicted out)

a Workplace Investigator

The workplace investigator has the experience and training to conduct a quality investigation. This provides you with the highest ROI in terms of root cause analysis, preparation for negotiations and litigation, workforce preservation.

How NOT to Litigate a Workplace Complaint Company takes no action

Employee complains to leaders re: harassment, discrimination, or hostile work environment.

Now What?

External HR team investigates

Internal HR team investigates

Gen. Counsel investigates w/o training

ILLEGAL. •Unlicensed actor investigation is a felony

RISK & LIABILITY. •Distracted employees •Bad witnesses •New allegations

COUNTERPRODUCTIVE. •GC disqualified as witness •Distracted employees •New allegations

ILLEGAL. •Personal liability risk •Federal damages $50K+

For a more in-depth dive into this flowchart,

SCAN THIS QR CODE NOW!

about recent legislative changes that affect workplace investigations. In this context, Senate Bill 45, Senate Bill 282, and House Bill 21 are par-

ticularly noteworthy. These Texas amendments, effective from Sept. 1, 2021, extend protections for victims of sexual

harassment in the workplace and former employees. Key changes resulting from these and other bills include: • Filing Period Extension: The statutory filing period for complaints has been increased from 180 to 300 days. This extension gives victims more time to seek redress for workplace harassment. • Loss of Federal Tax Deduction: Sexual harassment settlements are no longer tax-deductible business expenses. This change discourages companies from treating such settlements as merely a cost of doing business. • Definition of Employer: Texas Labor Code Section 21.142 has expanded the definition of “employer” to include businesses with at least one employee, significantly broadening the scope of entities subject to anti-discrimination laws. Additionally, the definition of tortfeasors now includes individuals like supervisors who fail to take immediate corrective action. Most alarmingly, the change allows for piercing the corporate veil and the attachment of personal assets. This broader scope has implications for potential lawsuits, including the possibility of destroying diversity jurisdiction. Who Should Conduct Investigations in Texas? The question of who should conduct workplace investigations is critical. Unless you have a qualified internal actor, only individuals with the appropriate credentials should be entrusted with this task. This means an attorney “in the practice of their profession” (think, with attorney-client privilege) or a licensed private investigator is authorized to perform an investigation in Texas. It’s worth noting that it is a felony to conduct an investigation as an attorney without a representation agreement or as an HR consultant. In conclusion, workplace investigations are a cornerstone of labor and employment law. Attorneys must care about them because of the legal and financial implications for their clients. Recent amendments have made workplace investigations even more critical, emphasizing the

need for attorneys to stay up-todate with evolving legislation. In this ever-changing landscape, attorneys who understand the significance of workplace investigations are better equipped to serve their clients and protect their interests. AL

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Austin Police to Begin Releasing Monthly Data Reports

ustin Police Department (APD) will soon start releasing a monthly report that includes number of arrests, instances of use of force, officer staffing, and overtime use. Currently known only as the APD Open Policing Data Release, the monthly release was requested by Austin City Councilmember Chito Vela, and was approved on Sept. 14. “What we’re doing today is bringing national best practices to Austin,” Vela said at the council meeting, adding that similar data are released monthly by law enforcement in Seattle and San Antonio. Any personally identifiable information will be removed from the data releases, Vela said. Vela said his request was inspired by community members who complained about not having a simple compilation of data. With input from APD, Vela said the data releases will include: • The number of monthly calls for police service, including type of incident, time received, location, and police response. Information for mental health service calls will also be included. • The outcomes of arrests, searches, use of force, and complaints against officers. • The number of APD employ-

“We believe that making data accessible to our community will empower them and foster a more transparent relationship.” —Brandon Jones, APD communications manager ees, including their ranks, monthly activities, hours worked, and use of overtime. • Data about cadet training, retirements, and other separations from APD. Interim City Manager Jesús Garza said city staff will give

the council an update on the program’s implementation by mid-December. Vela said he hopes to release the first data report on March 1, 2024. “We believe that making data accessible to our community will empower them and foster a more

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transparent relationship,” said Brandon Jones, APD communications manager. “We will rely heavily on feedback, research, and keeping up with emerging technology. Our goal is to make the data accessible, meaningful, and user-friendly to drive positive change.” AL

Study Recommends New Standards for Public Defender Felony Caseloads

s 14 hours enough for a public defender (PD) to handle a felony case? “No,” is the conclusion of a new study sponsored by the Rand Corporation.1 In 1973, the National Advisory Commission on Criminal Justice Standards and Goals determined that a PD can handle a yearly maximum of 150 felony cases, 400 misdemeanors, 200 mental health cases, 200 juvenile cases, or 25 appeals. But those standards do not take into consideration that not all felony cases are created equal. The results of the new study “strongly suggest that the caseloads of public defense attorneys are more excessive than previously thought and that decisive action is needed to ensure that public defense clients receive the effective assistance of counsel required by the Constitution.” The study found that the average life-without-parole (LWOP) felony case requires 286 hours. This means a PD working 2,080 hours (i.e., 40 hours a week for 52 weeks) a year can only handle seven such cases. Further, the lowest level of felony cases require an average of 35 hours each, suggesting an annual caseload standard of 59 cases, or 2,065 hours, the study found. The study’s authors came to these findings after combing through 17 state caseload studies.

Instead of a universal assumption that every felony case requires 14 hours of work, the study suggests creating and categorizing new standard workloads for felony cases, as follows: • Felony—High—LWOP: 286 hours, 7 cases per year. This category is for cases with possible sentences of life without parole. • Felony—High—Murder: 248 hours, 8 cases per year. This category includes first-degree, second-degree, felony, and malice murder.

• Felony—High—Sex: 167 hours, 12 cases per year. This category includes rape, aggravated sexual assault, child sex abuse, and child pornography with victim. • Felony—High—Other: 99 hours, 21 cases per year. This category includes negligent homicide, manslaughter, aggravated assault, assault with a deadly weapon, and kidnapping. • Felony—Mid: 57 hours, 36 cases per year. This category includes arson, armed rob-

bery, grand theft, breaking and entering, drug distribution or manufacturing, and battery. • Felony—Low: 35 hours, 59 cases per year. This category includes theft, larceny, burglary, and simple assault. AL ENDNOTE

1. Pace, Nicholas M., Malia N. Brink, Cynthia G. Lee, and Stephen F. Hanlon, National Public Defense Workload Study. Santa Monica, CA: RAND Corporation, 2023. https://www. rand.org/pubs/research_reports/ RRA2559-1.html.

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UT Study Finds Hospital Systems Can Artificially Inflate Prices

esearchers at The University of Texas at Austin found that a hospital system with a single IT platform can easily collude with rival hospital systems to keep prices above competitive levels. In the study, McCombs School of Business Associate Professor Hüseyin Tanriverdi found that a hospital system with a single IT platform: • can suggest pricing to member hospitals; • monitor prices charged; and • compare pricing with rival hospitals over time. A hospital system with a single IT platform can also tell if a competing system has lowered prices and if those lower prices are the result of negotiations with insurers or employers. If the prices can’t be explained by either of these, the first hospital system will respond by lowering its own prices even more.

“That motivates the competitor to come back into compliance,” said Tanriverdi. Tanriverdi had access to 195 hospital systems’ IT platforms, as well as their finance and operations, care delivery processes, and service offerings. Hospital systems with member hospitals in areas near other hospital systems’ member hospitals charged an average of $432 more than standalone facilities in the area. Tanriverdi refers to these systems’ IT platforms as “standardized operational IT.” In contrast, he found that member hospitals that used “advanced analytical IT” charged an average of only $171 more. This second analytical type of IT is “relatively new … [and] not in wide use among hospitals,” according to a McCombs press release. Tanriverdi also found that markets with greater diversity of hospital alternatives, such as health

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clinics, also had lower prices. “Health systems are really powerful, but the tyranny breaks down when there are forces like this at play,” he said. The McCombs press release encourages policymakers, regulators, hospital and insurance company executives, and patients to be aware of artificially inflated prices in areas in which multiple hospital systems operate. Patients should put pressure on local hospitals to digitize their

operations, which helps reduce costs, the press release says. “Knowing prices are elevated, insurance companies may also want to be more aggressive with price negotiations,” the press release says. Tanriverdi said this research should be applied to other industries, such as hotels, airlines, and corporate retail stores. “This theory needs to be tested to see if it can hold in those types of industries too,” he said. AL

Continued from page 6.

• I am going to read aloud your statement, and you let me know if I get one word incorrect. “Question: What color was the light? Answer: Green.” Did I get that right? Alternatively, refreshment is not confrontational; you simply give the witness something to help refresh his memory, ask him to read it silently to himself, and then ask the question again. If he still doesn’t remember, then you may be able to read into evidence the prior statement as a past recollection recorded under Rule 803(5). Best Evidence Rule This is not the better evidence rule. It simply means one cannot testify to something about which she has no direct knowledge, like something she read in a document or saw in a video or photograph. However, if a witness was present as an event occurred, the best evidence rule simply does not apply. For example, if a police offi-

cer conducts a traffic stop, she can testify about anything that she observed, regardless of whether it is also on video. This is different than an officer who did not conduct the stop being called to testify as to what she only viewed on a video. That would be subject to a proper best evidence objection. Rule of Optional Completeness This is not an objection. It is a rule of inclusion, not exclusion. If someone offers a piece of an otherwise admissible statement or document, you can—and should— ask that the rest of the statement or document be admitted immediately so the jury can understand the full context of the statement. Finally, as I tell my law students in Trial Advocacy, if someone objects and you don’t have a reply, simply heave a sigh, say “Your Honor, that goes to the weight, and not to admissibility,” and cross your fingers. AL

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