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Secretary Cascos reminds voters of Feb. 1 Registration Deadline

Today, Texas Secretary of State Carlos Cascos reminded Texans that February 1 is the deadline to register in time for the March 1 Primary Election.
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An Overview of Submissions Under the Texas Environmental, Health, and Safety Audit Privilege Act

Originally published by Environmental and Energy Law Blog.

Under the Texas Environmental, Health, and Safety Audit Privilege Act (“the Act”), those who conduct voluntary environmental or health and safety audits of regulated operations and facilities are entitled to immunity from administrative penalties for violations that are discovered, disclosed, and corrected within a certain amount of time. Under the Act, an audit that qualifies for protection is a voluntary evaluation, assessment, or review of compliance with environmental or health and safety laws or a related permit conducted by an operator or owner. Below is an overview of the submissions required under the Act.

Submissions under the Act

There are three types of documents a person may submit under the Act:

A notice of audit letter A disclosure of violations letter A request for an extension

Notice of audit letter

An individual must submit a notice of audit letter prior to commencing an audit. A notice of audit letter must include:

The name of the individual conducting the audit The date and time that the audit will commence A description of the leases, properties, or facilities to be audited

Disclosure of violations letter

In order to gain immunity under the Act, an individual must submit a disclosure of violations letter, which is a voluntary disclosure of violations identified as a result of the audit. The disclosure letter may identify one violation or multiple violations, and it should include the following information:

The name of the individual conducting the audit The certified mail reference number of the disclosure letter The date of the relevant notice letter The date and time that the audit occurred An assertion that a violation was discovered during the audit period A description of the violation The status and expected completion date of correction A description of the leases, properties, or facilities where violations were found

 

Request for an extension

The Act limits the audit period to a reasonable time no greater than six months unless an extension is approved. An individual who has submitted a notice of audit letter may submit a letter requesting an extension of the time period permitted for completion of the audit.

Texas Environmental Law Attorneys

If you or your company have been cited for non-compliance or are facing legal action based on non-compliance, then you need an experienced Texas environmental law attorney like C. William Smalling on your side. Smalling, with a background in engineering, understands both the technical and legal aspects of situations affecting corporations in the oil, gas, and energy industries. Whether negotiating with the government or litigating government enforcement actions and private tort suits, the experience of C. William Smalling provides corporate clients with a significant edge in all oil, gas, and energy matters. We take pride in providing our business clients with the legal tools to remain confident while navigating the complicated world of environmental regulations. If your company is facing legal action or simply needs guidance in the area of environmental law, please contact the Law Office of C. William Smalling for a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Environmental and Energy Law Blog
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Developments in Truck Accident Litigation: Side Underride Guard Non-Use

Originally published by Christopher Fletcher.

The debate as to whether trucking companies should be required to use side underride guards has garnished significant attention in the news as of late. New proposals to reduce the commercial truck driving age could mean more inexperienced drivers on the road—and this could mean more accidents.  Side underride guards are not currently required by […]

The post Developments in Truck Accident Litigation: Side Underride Guard Non-Use appeared first on .

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Christopher Fletcher
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What degree of impact will divorce have on your credit score?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

If you search for online articles about divorce and finances you could
spend the rest of your life reading through the results and still wouldn’t
have enough time to read them all. Besides children, finances and property
are the biggest and most important issues in a
divorce. With good reason, many people have devoted vast amounts of time and energy
into writing about this subject. You are reading yet another one of those
blog posts right now.

The question remains, however: to what extent will your divorce impact
your finances- specifically your credit score? The reason why people can
write blog post after blog post and article after article is that there
is no one answer that is correct. With all that information out in the
open to review, there is no wonder why so many people still have so many
questions about finances and divorce. Where do you even begin to learn
what is correct and what is not?

In today’s blog post from the Law Office of Bryan Fagan, PLLC I am going
to write about the subject of the impact of divorce on your
credit score. While it is not as if a divorce itself will show up on your credit score,
many issues that are related to divorce will have an impact on your credit
and your credit score specifically.

Financial trouble can be the result of divorce

It doesn’t matter if you have kids or don’t have kids. It doesn’t
matter if you are a man or a woman. Divorce can lead to rough financial
times if you are not careful or set up well for the end of your marriage.
Have you considered the fact that, even though your current financial
state may not be all that strong, having only one income rather than two
can be a huge transition to have to sort through? Your spouse’s
income will be leaving the house after your divorce and you will very
quickly have to adapt to that. Attorney’s fees, missed time from
work to attend court dates and mediation can only increase likelihood
of this potential problem.

When we are talking about your credit score we are considered debts- loans
that you have taken out, credit cards that you have opened up and even
your house’s mortgage. Those creditors don’t care if you are
going through a difficult divorce. The interest is piling up on those
loans throughout your divorce. You may have even had to take out a loan
to pay for your attorney. If you are having to miss payments on these
bills as a result of you going through a divorce then your credit score
will begin to take a slide fairly quickly.

Be aware of any accounts that you co-own with your spouse

Do you and your spouse own any credit accounts in tandem with your spouse.
What about your mortgage? Or a Home Equity Line of Credit (HELOC)? If
so then you and your spouse need to be on the same page during your divorce
as far as which one of you will be paying this loan and how. This is a
big reason why most people going through a divorce will negotiate for
temporary orders that will dictate which spouse will pay what bill during
the divorce. Doing so will avoid miscommunication on the subject of bills.

Difficulties associated with credit and your spouse do not stop even after
your divorce

Keep in mind that just because your divorce has been finalized your credit
concerns will not necessarily come to a screeching halt. Consider that
no matter what your Final Decree of Divorce has to say, you and your spouse
still own those credit accounts together unless you are able to get either
your name or your spouse’s off the account. Sometimes all it takes
is sending in a copy of your
Final Decree of Divorce but often times this will not matter. For example, if you took out a home
loan to purchase a residence with your spouse the mortgage company does
not care about your divorce and how it divided up the debt or property.
All the creditor cares about is that your contract bears the name of you
and your spouse.

In the context of your home you and your spouse can come to an agreement
whereby you are paid an equity stake in the home in exchange for deeding
your share in the home to your spouse. The specific process is not something
I am going to get into in this setting, but understand that most creditors
do not care that you have a divorce decree that divides up debt in a certain
way. Also consider that you and your spouse can divide debt and still
be hurt due to your ex-spouse not paying the debt as agreed. Often times
vengeful or spiteful spouses will behave in this manner.

How to be defensive about your credit after a divorce

If your goal is to maintain a good credit score you need to minimize your
total amount of debt while maximizing the length of time that you have
been diligent and consistent in making timely payments on the debt that
you do have. For many people, the credit score is the be all, end all
of financial success. If you are one of those people here is what you
can do to increase the chances that your divorce will not be a death knell
for your strong credit score.

First off, do not continue your bad habits after a divorce. If your household
income has been able to overshadow bad spending habits to this point then
do not let that problem persist after your divorce. This is especially
important because you now will have less income coming in to service the
debt that you do have.

For example, you may not be able to buy a house immediately. Buying a house
while you are in debt is begging for trouble to come your way. If you
can no longer afford to make the payments on your vehicle it may be time
to sell it and to take out a small loan from your local credit union to
make up the difference. Pay off that loan and buy a cheap, used vehicle
with a small portion of that loan. You may not look good riding around
in it but at least you will not be in debt.

Before your divorce is finalized print out a copy of your credit report
and take a look at it. If there are any debts that you are not familiar
with call the credit bureau and inquire about them. They may not be there
by mistake as your spouse may have opened up a line of credit or taken
out a loan in your name without your permission. The time to address these
debts is before you sign your final orders- not afterwards.

Consider that debt is not a means to building financial stability

If you have not figured it out yet, debt should not be your go-to resource
for accumulating wealth and financial success. Ask super-successful financial
people and I don’t know that you would ever hear that he or she
got there because of the easy credit that they had access to. If anything,
debt has likely held the person back from building wealth even quicker
than he or she did.

Your credit score is not a signal to anyone of how financially stable you
are. On the contrary, it simply tells people how strong of a relationship
you have to debt. If you take out big loans but pay them off on time you
will have a strong credit score but your path to wealth and financial
successful will become stunted. Consider revising your approach to debt
after your divorce so that eventually your credit score becomes nothing
more than a number in your past.

Questions on debt, property and divorce? Contact the Law Office of Bryan Fagan, PLLC

If you have any questions about the subject matter that we discussed today
please do not hesitate to
contact the
Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our
licensed family law attorneys.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: The Law Office of Bryan Fagan, PLLC Blog
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Useful Forgetfulness and Study Tools/Outlines: Could There Be Too Much of a Good Thing?

Originally published by Academic Support.

Perhaps you’ve heard the phrase “Too big to fail.” Well, that might be true, at least according to some, with respect to some business enterprises in the midst of the last recession. But, at least from my point of view,…

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Academic Support
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Apffel: We Will Defend the State Bar of Texas

Originally published by Trey Apffel.

In March 2019, three Texas lawyers sued the State Bar of Texas claiming that under Janus v. AFSCME (2018), it is unconstitutional for an attorney to be required to join the State Bar of Texas in order to practice law. The plaintiffs also challenge bar programs that they claim exceed the bar’s “core regulatory functions.”

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Trey Apffel
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Practical Advice for Marketing Your New Law Firm

Originally published by Bruce Vincent.

Opening a new law firm is, admittedly, overwhelming. You have to find office space, establish a secure computer network, hire the right employees, buy office equipment, and accomplish a million other tasks. If you want to make sure your new firm has plenty of business, we’d like to add one more bucket of tasks: how […]

The post Practical Advice for Marketing Your New Law Firm appeared first on Muse Communications.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Bruce Vincent
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Texas Outfitters v. Nicholson and the Duty of the Holder of the Executive Right

Originally published by John McFarland.

Last week the Texas Supreme Court handed down its opinion in Texas Outfitters, Limited, LLC v. Nicholson, No. 17-0509, once again addressing the duty of the holder of executive rights to minerals owned by another. The Court affirmed a judgment of $867,654.32 plus interest and costs against Texas Outfitters for breaching that duty.

Dora Jo Carter owned the surface estate of 1,082 acres of land in Frio County. She and her two children owned 50% of the minerals; the other 50% were owned by the Hindes Family. In 2002 the Carters sold the land to Texas Outfitters, owned by Frank Fackovec, for $1 million, financing a part of the purchase price. Fackovec intended to live on the ranch and operate a hunting business. The Carters sold Texas Outfitters 1/24 of the minerals along with the land, and also conveyed to Texas Outfitters the exclusive right to lease the 11/24 mineral interest retained by the Carters. Fancovec wanted the right to lease the entire 50% mineral interest to be sure his surface estate was protected if and when oil and gas development took please. This right to lease the Carters’ minerals, the executive right, became the source of the later controversy.

In June 2010 the Hindes family leased their 50% mineral interest in the ranch to El Paso Exploration for $1,750 per acre and 25% royalty. El Paso made the same offer to Fackovec, but he declined the offer, despite the Carters’ request that he accept it. The Carters and Facovec then had settlement negotiations, resulting in a tentative settlement in which (1) Texas Outfitters would convey back to the Carters the executive rights to their 11/24 mineral interest, (2) the parties would agree to as-yet unspecified restrictive covenants burdening the mineral estate for the protection of the surface estate, (3) the Carters would forgive $263,000 of the note they held from Texas Outfitters, and the parties would sign a lease to El Paso. This settlement later fell apart over failure to reach agreement on the terms of the restrictive covenants. The Carters sued Texas Outfitters and Fackovec in June 2011, alleging that he had breached his duty as holder of their executive rights by refusing to lease to El Paso.

Subsequently, drilling in the area revealed that the ranch was not as prospective for oil and gas as had been thought. In 2012, Texas Outfitters sold the ranch for approximately $3.5 million.

After a trial before the court without a jury, the trial court found that Texas Outfitters had breached its duty to the Carters and awarded them the amount they would have received in bonus if it had leased to El Paso. The trial court made extensive findings of fact, which Texas Outfitters did not challenge on appeal, except for the ultimate fact that Texas Outfitters had breached its duty. The court of appeals in San Antonio affirmed.

The Court’s opinion reviews its prior cases on the duty of the holder of the executive right:  Manges v. Guerra, 673 S.W.2d 180 (Tex. 1984), In re Bass, 113 S.W.3d 735 (Tex. 2003), Lesley v. Veterans Land Bd. of State, 352 S.W.3d 479 (Tex. 2011), and KCM Financial LLC v. Bradshaw, 457 S.W.3d 70 (Tex. 2015). The Court said that, based on these prior cases, “the ‘controlling inquiry’ in ascertaining whether an executive breached his duty to a non-executive [is] whether the executive engaged in acts of self-dealing that unfairly diminished the value of the non-executive interest.” The Court said that this test applies whether the alleged conduct consists of leasing or failing to lease. The Court cautioned that “evaluating compliance with the executive duty is rarely straightforward and is heavily dependent on the facts and circumstances.” Examining the facts and circumstances of this case, the Court found that there was sufficient evidence to affirm the judgment.

The Court said that “an executive generally does not breach his duty by declining a lease in honest anticipation of obtaining better terms for all.” The Court analogized the test to the business judgment rule; that rule protects corporate officers and directors, who owe a fiduciary duty to the corporation, from liability for conduct that is within the honest exercise of their business judgment. But the Court found sufficient evidence that Texas Outfitters had breached its duty by refusing to lease to El Paso in order to benefit its surface interest in the ranch. Texas Outfitters had “crossed the line” “from lawfully promoting his own surface interest to unlawfully doing so at the expense of the non-executive interest, thereby engaging in self-dealing that unfairly diminishes the value of that interest.” “We certainly do not hold that an executive must always accept an offer to lease both the executive’s and the non-executive’s mineral interests when the non-executive wishes to accept. But we also do not hold that an executive is never required to accept such an offer.”

In 2003, the Court held in In re: Bass that the holder of the executive right has no duty to lease. The plaintiff in that case owned a royalty interest in lands owned by Bass, and Bass refused to lease the land. The Court said that Bass had not breached any duty to the royalty owner by refusing to lease. Although the Court in Leslie and Texas Outfitters did not expressly overrule Bass, it made clear that refusal to lease may breach the executive’s duty.

The executive right can be severed from the mineral estate in two ways: by a grant or reservation of a royalty interest, or by a grant or reservation of a mineral interest in which the executive right to lease part of the mineral interest granted or retained is given to the holder of another’s mineral interest. Allegations of breach of the executive’s duty to the holder of a royalty interest generally involve situations like Manges v. Guerra, where the mineral owner leases for a below-market royalty in order to obtain a benefit for himself, such as a larger bonus or benefits to the surface estate. Allegations of breach of the executive’s duty to the non-executive mineral owner generally arise in situations like Texas Outfitters where the executive owns the surface and unfairly seeks to protect his interest in the surface to the detriment of the non-executive mineral owner.

Holders of executive rights must be cognizant of their duty to the non-executive interest owner. If, as in Texas Outfitters, an opportunity to lease is lost, the non-executive interest owner may seek to second-guess the decision of the executive interest owner not to lease.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: John McFarland
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How long to rule, is too long to rule?

Originally published by David Coale.

How long is too long to rule on a pending motion? In In re Hines, it was just under seven months from the first written request for a hearing: “[R]elator’s certified mandamus record includes copies of a motion for judgment nunc pro tunc dated August 24, 2018, and letter requests to the trial court dated September 27, 2018 and November 7, 2018 requesting a hearing on the August 24, 2018 motion for judgment nunc pro
tunc. The trial court has had a reasonable time in which to rule on the motion but has taken no action. Under this record, we conclude the trial court has violated its ministerial duty to rule on relator’s motion for judgment nunc pro tunc within a reasonable time.” No. 05-19-00243-CV (April 15, 2019) (mem. op.) (emphasis added).

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: David Coale
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Executive Right Holder Liable for Refusing to Lease

Originally published by Charles Sartain.

Co-authors Niloufar Hafizi and Mauri Hinterlong

In resolving disputes among the mineral interest family, there is no bright-line rule delineating the duty of the executive right holder. In Texas Outfitters Limited v. Nicholson, the Texas Supreme Court explained why. The Court last addressed executive rights in 2015 in KCM Financial v. Bradshaw, where the executive allegedly colluded with a lessee for lease terms favoring itself at the expense of the non-executive. Texas Outfitters presented an oppportunity for the Court to apply the KCM guidelines to a different scenario: whether the executive breached the duty by refusing to lease.

(Spoiler alert: Yes.)

Background

The Carters and the Hindes each owned 50% of the minerals to the 1,082 acre Derby Ranch in Frio County. The Carters owned the surface. The Carters sold the surface, a 4.16% mineral royalty interest, and the executive right to Texas Outfitters, a hunting company, leaving themselves with a non-executive right to 45.84% of the minerals.

Outfitters began receiving, and rejecting, lease offers for the 50% interest it and the Carters owned. One such offer was from El Paso for a 25% royalty and $1,750-per-acre bonus. Not coincidentally, the Hindses has already leased to El Paso on identical terms. When Outfitters rejected the El Paso lease, it knew the Carters wanted it to accept.

The Parties tried but failed to reach an agreement that would result in a lease and surface protections for Outfitters. Outfitters received two more lease offers which were withdrawn, the first when the prospective lessee learned El Paso had leased the other 50%.

The Carters sued Outfitters for breaching the executive’s duty of utmost good faith and fair dealing. A bench trial resulted in a judgment for the Carters for the amount they would have received in bonuses had Outfitters leased to El Paso: $867,654.32. The court of appeals affirmed.

The Supreme Court sets the new standard

Outfitters claimed all it had done was “gamble” on receiving a lease offer better than El Paso’s. The Supreme Court disagreed and affirmed the result, although not the appellate court’s application of the rule. The lower court had incorrectly distinguished two standards: The Bradshaw standard for breaches involving a lease, and the Lesley standard for refusals to lease.

The Supreme Court clarified that one inquiry guides breach of executive duty cases, regardless of whether the executive has leased or failed to lease. There is but one “controlling inquiry”: whether the executive engaged in acts of self-dealing that unfairly diminished the value of the non-executive interest.

Evidence of wrongdoing

What had Outfitters done to benefit itself in a manner that unfairly diminished the value of the Carters’ interest?

Outfitters refused the El Paso lease, which was higher in bonus and royalty than the previous offer, knowing that the Carters owned a much greater mineral interest and wanted the lease. Outfitters knew there would be fewer options for leasing to another operator once El Paso had a lease on the other 50%, but refused El Paso anyway. The later prospective lessee’s withdrawal of its offer because of the El Paso lease confirmed that Outfitters’ refusal led to less competition, reducing the value of the Carters’ minerals. The courts apparently believed the Carters’ claim that Outfitters stated it was refusing the lease due to its hunting operations, not because it was waiting for a better offer. Outfitters benefited from denying to lease by running hunting operations on the surface and then selling the Ranch for more than it could have, had a lease existed.

The Court agreed with the trial court that that Outfitters had self-dealt at the Carters’ expense.

What have we learned about executive right jurisprudence?

This case confirms that the executive’s duty defies easy definition and bright-line standards. The Court emphasized that executive breach inquiries are “heavily dependent on the facts and circumstances”; none of the single facts in this case were dispositive. Also, there is now the one guiding inquiry

This result also puts into perspective the purposes of the executive right. Scholars have pointed to two:

to protect the surface owner’s rights, and to facilitate leasing and development when mineral interests are fractionalized.

The Court found the second rationale more convincing. Scholarly debate aside, Outfitters reinforces the message that surface protection is not the only goal an executive is allowed to pursue – especially if a co-owner has leased.

Ready for more on this subject?

Today’s co-authors Nikki and Mauri will speak on this topic at the 32nd Annual Energy Law Institute presented by the South Texas College of Law.

And today’s musical interlude.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Charles Sartain
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Business Divorces:  Drafting the Resolution Agreement — When Will Closing Occur?

Originally published by Steve Robinson.

Drafting the Resolution Agreement – Some Typical Provisions posted last week briefly discusses three kinds of provisions typically found in most business divorce resolution agreements.  (The single essential term in every divorce agreement — Mutual Releases — is addressed in Drafting the Resolution Agreement – The Single Essential Provision.)

I had planned to use this week’s post to write about some additional typical provisions that usually belong in a business divorce agreement.

As I began writing, however, I realized that it might be helpful to discuss simultaneous closing agreements and deferred closing agreements. Some clients don’t understand the difference; some clients don’t comprehend why an attorney prefers to choose one over the other.  Whether the closing is deferred or not also affects whether many provisions need to be included in the contract. 

First, some Elementary Negotiation Theory

Whenever two persons negotiate the terms for a possible transaction between them, at least two sets of negotiation are happening.

When they discuss the actions each will take and the promises each will make to the other, those persons are negotiating about the subject matter of the negotiation.  That set of negotiations is overt:  they speak words to one another and they exchange written drafts of a potential agreement.   This set of negotiations is important, of course.

At the same time, a more important set of negotiations is ongoing.  That set is the negotiation about the procedure of the negotiation, or negotiation about the negotiation.  The negotiation about the negotiation is often silent although real.  That negotiation expresses itself through various manners: words not spoken, language not included in drafts, scheduling of meeting places and times, and many other ways.

Next, the Topic Defined: Simultaneous or Deferred Closing

Like an asset or stock purchase agreement, a business divorce agreement may contemplate a simultaneous or a deferred closing.  If the actions take place when the agreement is signed, the closing is said to be “simultaneous” because the contract and the transactions it contemplates occur at the same moment, legally speaking.  When those transactions will occur after the date of the agreement’s signing, there is a “deferred” closing.

A common example of a deferred closing agreement that everyone is familiar with is the residential purchase contract for buying a home.  In contrast, a contract to purchase a car is commonly a simultaneous closing agreement.

How Negotiation Theory and the Choice between Simultaneous or Deferred Closing Converge

Our post Drafting the Resolution Agreement — Initial Choices  describes the different ways that parties in a business divorce can document their discussions and agreements.  Even when negotiations progress to the point where the owners can enter into a definitive agreement,   they may nevertheless disagree over a simultaneous versus a deferred closing.

Where the actions to complete the divorce are few and uncomplicated, and also not dependent upon conditions beyond the parties’ control, a simultaneous closing agreement appears to be the better choice.  In contrast, when the completion of the divorce depends upon a condition that the parties to the agreement cannot effect (like a lender’s release of collateral or the approval of a governmental authority), a deferred closing agreement will be necessary.

Between those two clearly opposite situations, however, the choice between a simultaneous or a deferred closing agreement can become gray.  That is one of the regions where the “negotiation about the negotiation” that has been underway from the commencement of negotiations can determine whether the owners enter into a simultaneous closing or a deferred closing agreement.

An Illustration

Imagine a business divorce where there are no third party approvals necessary for the divorce to occur and no other obstacles to closing that are beyond the owners’ control.  Accordingly, there is no compelling reason for the owners to select a deferred closing agreement instead of a simultaneous agreement.

Imagine too that the first owner is unwilling to sign anything until everything is agreed upon in writing to the minutest detail.  That includes the execution form for every one of the separate ancillary documents, which may consist of an amendment to the company’s governing documents, an assignment of ownership interest, a noncompetition or consulting agreement, asset assignment instruments (including deeds), and so on.  

The second owner is different: eager to get everyone legally committed to an enforceable contract as quickly as possible, he wants to sign as soon as the material terms have been agreed upon although specifics remain to be finalized before closing.  The second owner is willing to leave the drafting of the separate ancillary documents to the post-signing, pre-closing period.  He believes that the first owner and her attorney may take days or even weeks to agree on the final forms of all of the ancillary documents.  Also, he suspects that the first owner and her attorney may try to take advantage of the ancillary document drafting process to further negotiate some of the substantive terms of the business divorce agreement.

If the first owner prevails, there will be no written contract (and he will not be bound) until the agreement and all ancillary documents are absolutely final.  However, while he protects himself from becoming bound until every i and t have been dotted and crossed to his satisfaction, the second owner may so improve his BATNA (see The Importance of BATNA) that he elects NOT to sign the agreement.

If the second owner prevails, he will have bound the first owner to go forward with the divorce on “legally sufficient” but possibly bare-bone terms.  However, the second owner may come to rue his haste, since he will be as legally bound to the divorce actions as the first owner.  What does the second owner do if the parties stalemate over the drafting of the ancillary documents?

The Conclusion

Here are two opposing examples of inertia.  The first owner prefers to stand still until she becomes convinced that the path forward will be free of obstacles.  The second owner prefers to create the momentum that he feels is necessary to consummate the divorce.

The owner who prevails in this contest will likely be the owner who, from the beginning, has acted more consciously and deliberately to win the “negotiation about the negotiation.”

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Steve Robinson
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TexasBarCLE honors outstanding volunteers

Four attorneys were honored for their exceptional contributions in 2018 to the State Bar of Texas’ continuing legal education efforts.

TexasBarCLE gave Standing Ovation Awards to Joe R. Anderson, of Burns Anderson Jury & Brenner in Austin; John C. Grace, of the Lubbock City Attorney’s Office; Mark T. Murray, of Stevenson & Murray in Houston; and Kristal C. Thompson, of Langley & Banack in San Antonio.

“To recognize CLE volunteers who stand out each year for their extraordinary energy, commitment of time, and leadership, the TexasBarCLE staff created the Standing Ovation Award,” said Hedy Bower, director of TexasBarCLE. “The State Bar thanks these committed lawyers who strive to improve the profession through education.”

Original author: Adam Faderewski
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TOJI accepting applications for 5th cohort

The Texas Opportunity & Justice Incubator, or TOJI, is accepting applications for its fifth cohort, which begins in July.

TOJI is a State Bar of Texas program that helps attorneys build solo law practices that serve low- and modest-income Texans. Participants receive training, coaching, and resources to move their businesses forward and meet the legal needs of underserved populations.

The program is seeking applications from people interested in collaborating with innovative attorneys who are making a difference in the community.

Applications, open through May 15, are available at txoji.com/apply-now. For more information, go to txoji.com or visit TOJI on Facebook at facebook.com/txoji.

Original author: Eric Quitugua
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ABA seeks attorney volunteers to help along Southern Border

The American Bar Association is seeking licensed attorney volunteers to help with two projects to assist asylum-seekers and immigrant children along Texas’ southern border with Mexico.

The ABA’s Commission on Immigration is leading week-long volunteer trips each month from April to October to direct-service projects along the Texas-Mexico border. Volunteers will work at the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen. Volunteers for this effort are not required to have immigration law experience or speak Spanish to participate. Volunteers will meet with adult immigrants and asylum-seekers at the Port Isabel Detention Center in Los Fresnos and provide assistance with applications for relief. Details and how to volunteer can be found here.

Separately, the ABA’s Children’s Immigration Law Academy (CILA) is seeking Spanish-speaking volunteer attorneys with basic immigration law knowledge to provide legal services on weekends from April through June to detained immigrant children being held in the Rio Grande Valley. Volunteers again will be working with South Texas ProBAR. For details of this effort and how to volunteer, go here.

Original author: Amy Starnes
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Sponsored Content: How Law Firms Can Prevent Client Non-Payment

Chasing down non-paying clients is the bane of most lawyers’ existence. You may not be able to avoid ever having to deal with non-paying clients. However, if you take some intentional steps throughout your case, you can certainly reduce the incidence of non-payment.

Communicate Regularly

Likely, the vast majority of the work you do for a client will not be performed in front of her. So if she rarely sees you in person and your primary communication is an invoice with a single line item for “Services Rendered,” she may feel less than thrilled about just cutting you a check, no questions asked.

Realistically, you can’t send daily email updates to every client. But to prevent payment delays, you should at least make sure the important correspondence (i.e., billing statements) meets certain criteria:

Descriptive and easy to understand.

You don’t have to outline your time to the minute, but use separate line items for the larger tasks and include a brief summary of the work you did. As much as possible, avoid legal jargon. Your objective is to give the client visibility into what you’re doing for them. And if you use too much technical language, your client may end up with even more questions.

Delivered electronically and via postal mail.

Letters still sometimes get lost in transit and emails can get caught in SPAM filters. That’s why you should always send digital as well as hard copies of every invoice and keep records of when each was sent.

Sent at approximately the same time each month.

As part of your intake process, establish when the client would prefer to receive her invoices. If you can ensure your invoice arrives consistently, there’s a greater chance she’ll be able to properly budget for it.

Sometimes you might find yourself in a bit of a holding pattern due to circumstances outside your or your client’s control and so you won’t have anything to bill for one month. In those situations, whenever possible you should try to still send some sort of note to let your client know her case hasn’t fallen by the wayside. It’s a small gesture but it shows your client you appreciate her situation. When a client feels appreciated, she’s less inclined to be oppositional when it comes to payment.

Be Flexible About Payments

Offering multiple payment methods can decrease opportunities for delinquent accounts. While cash and checks are, of course, the standard, for many Americans they are becoming increasingly less popular ways to pay for products and services. In fact, only about half of all U.S. adults make sure they have cash on hand.

Consequently, a growing number of law firms are now accepting credit card and eCheck payments. And the most forward-thinking practices use online payment solutions, which make it even easier to avoid non-payment. With an online payment solution, you can accept payments in-person or on a secure payment page. You can also save yourself time by automating your invoicing and billing processes.

Unfortunately, there will likely be instances where you make the payment process as easy and straightforward as possible and clients still don’t pay. However, if you follow this advice, you’ll be in a position where dealing with non-payment can be a little less painful and far less frequent.

Original author: Guest Blogger
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TRLA launches disaster-preparedness community meetings

Texas RioGrande Legal Aid, with funding from the Texas Bar Foundation, is launching disaster-preparedness community meetings beginning today in the McAllen area.

The meetings are designed to inform the public about legal solutions to many post-disaster problems.

Tonight’s meeting will be delivered in Spanish. It will begin at 6:30 p.m. at La Union Del Pueblo Entero, 1601 Business US-83, San Juan, Texas, 78589.

 

Original author: Amy Starnes
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Abraham Watkins kicks off Text Free Texas Scholarship Contest

Houston firm Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz is sponsoring its 7th annual Text Free Texas Scholarship Contest this month.

The contest is intended to raise awareness about the dangers of distracted driving, especially texting while driving, among teenagers.

Each year, the firm invites four Houston high schools to participate in the contest. High schools participating this year are Chavez High School, East Early College High School, Kashmere High School, and Mount Carmel Academy. During April, driving-age students from the schools will submit pledges explaining why they commit to not text and drive. The firm will select the best pledge from each school and award those students a $250 scholarship. Winners will be announced in the first week of May.

The contest targets teen drivers, who are the youngest and least experienced on the road, and are in the age group where cellphone use while driving is most common.

Find out more about the Text Free Texas Scholarship Contest at TextFreeTexas.com.

Original author: Adam Faderewski
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South Texas College of Law Houston names new dean, president

South Texas College of Law Houston named Michael F. Barry, assistant dean and practitioner in residence at St. Mary’s University School of Law, as its new dean and president. He will assume the new roles prior to the 2019-2020 school year and will replace Don Guter, who has served as dean since 2009.

“I am delighted and fully confident in turning over the reins of South Texas College of Law Houston to Mike Barry, a proven and successful leader, businessman, and scholastic innovator,” Guter said in a press release. “His impressive track record of integrity, leadership, and ingenuity will serve STCL Houston and its students well as they approach the law school’s 100th year of excellence in legal education.”

Barry was a member of the faculty of St. Mary’s University School of Law for four years. During his tenure there, he implemented Law Success, a three-year program designed to enable students to be successful in law school, on the bar exam, and in practice.

“I am honored to join the South Texas College of Law Houston family and look forward to becoming part of the Houston community,” Barry said in a press release. “The law school has a strong track record of exceptional teaching and scholarship, and South Texas graduates are known as capable, dedicated attorneys committed to serving their clients and their community. I am excited to work with the faculty, staff, students, alumni, and community in support of the school and its students.”

Prior to St. Mary’s, Barry served as senior vice president and general counsel to USAA and as director, assistant general counsel, and associate general counsel to Capital One Services. He received his law degree from Yale Law School.

For more information about South Texas College of Law Houston, go to stcl.edu.

Original author: Adam Faderewski
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SXSW: Social Media Ethics for 2019

A litany of rule changes have been made and ethics opinions issued by bar associations across the country in order to catch up with the pace of social media. A South by Southwest panel covered changes regarding competence, unintentionally transmitted communications, and disappearing data.

Competence with Social Media
Lisa Borodkin, founder and principal in Lisa Borodkin, Attorney at Law, covered updates to the competency requirement for attorneys as framed in American Bar Association Model Rule 1.1, comment 8 issued in August 16, 2018.

“It’s actually built into the competence requirement that lawyers must keep up with changing technologies and be competent not only in using new technologies, but also advising clients and those they supervise in using new technologies and all of the risks and issues,” Borodkin said.

Another change to competency was issued by California under Rule 1.1, renamed from former Rule 3.1.

“Now the rule of competence for attorneys generally says you have an ethical duty to handle matters that you are competent to handle,” Borodkin said. “What’s new in the California rule regarding experience is that it specifically says that you can refer a matter that you’re handling from an existing client to a competent attorney.”

Unintentionally Transmitted Writings
Hanna Shafran, an associate of Zaller Law Group, discussed new California Rule 4.4, which codified the 2007 ruling in Rico v. Mitsubishi.

Shafran said the Rico case regarded a plaintiff’s attorney inadvertently receiving information from the defense that he then disseminated to his co-counsel and used to impeach an expert witness. At the time, there was no rule governing the handling of unintentionally transmitted documents.

“Comment 1 to Rule 4.4 cites the Rico holding and suggests that an attorney who upon reading a communication that was received inadvertently,” Shafran said. “Immediately upon realizing that you had received a confidential communication, whether it was labeled as such or not, you should stop reading it and return it to the sender, and further reach an agreement to stop any inadvertent use. If you can’t reach an agreement on the inadvertently received information, seek the guidance of a tribunal.”

However, rules vary by jurisdiction and Shafran cited Texas Ethics Opinions 664 & 665 from 2017 as a counter to California Rule 4.4, Comment 1.

“In Texas, there is an obligation on the sender,” Shafran said. “They do it as more of a breach of the attorney-client privilege. The person who sent the information was the one who made the mistake. If you receive an inadvertent communication in Texas you’re allowed to use it—so long as you are acting truthfully.”

Keeping Clients Informed and Disappearing Data
California Rule 1.4, former Rule 3-500, “[i]mposes a duty on attorneys to keep clients reasonably informed of significant developments and promptly comply with request for information and significant documents,” Shafran said.

New to the rule is an addition and exception for this obligation, which in effect address the way information is transmitted, Shafran said.

“You may delay the transmission of information if it’s likely to cause imminent harm,” Shafran said. “There’s a feeling of instantaneous demand for information and I think it’s just to remind attorneys—that although you do have this obligation—to slow down and think about the information you’re conveying. Just because you can give it immediately doesn’t mean that you’re required to give it right this second.”

A popular new method of conveying information to clients has been through disappearing data, Borodkin said.

Disappearing data regards information that lawyers and clients exchange through apps designed to not create a record of that exchange.

“The host does not keep the information after it’s sent,” Shafran said. “Once the recipient receives the information, views it for whatever time period is allotted, then it’s lost and gone forever.”

Borodkin said disappearing data figured prominently in Waymo LLC v. Uber Technologies, Inc. when the Uber counsel used Wickr, an app specializing in disappearing data, to communicate with clients.

The judge scolded the attorneys for Uber at the time, but did not sanction them, Shafran said. However, there is no concrete ruling about disappearing data, so usage remains unclear and is up for ethical debate.

After Waymo v. Uber, Jennifer DeTrani, general counsel to Wickr, was interviewed by Law360.com about disappearing data, Shafran said.

“Using disappearing data shows an intent by the attorney to keep attorney-client communications privileges because you know it’s going to disappear and no one else is going to see it,” Shafran said, summarizing DeTrani’s argument. “[DeTrani] contrasted that by text messages, which she was citing as less secure. She was saying how texting with clients was almost less secure and almost showing less intent of keeping attorney-client privilege.”

Another opinion on disappearing data was an article from Duquesne University School of Law associate professor Agnieszka McPeak published in the Wisconsin Law Review, Shafran said.

“There is a duty under the federal rules to preserve data for discovery, but it’s not clear what your obligations are in using it under a disappearing data context,” Shafran said, summarizing McPeak.

Catfishing and Lawyering Don’t Mix
A number of new California Rules were issued, including Rules 3.4, 4.1, and 4.3, to address how attorneys behave on the internet, Borodkin said.

“You can’t be a sock puppet or an anonymous coward and then go on the internet and do your private investigation work or try to sway public opinion,” Borodkin said.

Borodkin said the new rules in California are an extension of the attorney’s duty to be honest at all times.

“In general, the reasoning is a lawyer is required to be truthful all the time not just when dealing with clients or opposing counsel but even third parties,” Borodkin said.

That honesty also extends to attorneys communicating with unrepresented persons online, which was addressed in ethics opinions from the New York City Bar Association, Oregon State Bar, and the Texas State Bar, Borodkin said.

“Lawyers may not anonymously contact witnesses,” Borodkin said in regards to Texas Ethics Opinion 671 from March 2018. “It’s another violation of the duty to be honest and not to mislead.”

No Anonymous Trolling
Borodkin cited the ruling in the Supreme Court of Louisiana in In Re Perricone as a warning to attorneys attempting to act anonymously online. The case involved Salvador Perricone, a former U.S. attorney, posting pseudo-anonymous comments on the Times-Picayune website regarding a trial he was involved in.

“This attorney would go online and make comments like ‘they’re obviously guilty’ or ‘the jury is definitely going to convict them,’” Borodkin said. When the judge learned of the comments regarding the case, they were forced to set aside the conviction of the defendants, Borodkin said.

The final decision in In Re Perricone resulted in the disbarment of the attorney, Borodkin said.

“It’s very, very clear now that commenting anonymously on an active case is not only an ethical violation, it is so severe that it can result in disbarment,” Borodkin said. “The consequences can be quite dire.”

Even framing a current case as a hypothetical can be dangerous, Borodkin said, and cited ABA Committee on Ethics Formal Opinion 480 from March 2018.

“Attorneys must be hyper aware and hyper careful when framing real-client situations, even as hypotheticals, that it isn’t a case where the identity of the client could be derived,” Borodkin said. “That is disciplinary cause for investigation and discipline.”

Judges Can Be Facebook Friends
Shafran reviewed the 4-3 ruling in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto Ass’n, a Florida Supreme Court case, dealing with whether a judge must recuse if they are Facebook friends with an attorney in their trial.

“[The Florida Supreme Court] did the classic analysis of looking up the definition of friendship,” Shafran said. “They went through Merriam-Webster’s Dictionary, pared out what it means to be friends, applied it to traditional friendships—face-to-face—and what that means today.”

The majority opinion stated that Facebook friendships did not equal a friendship in the traditional definition of the word, calling them far more casual and less direct in nature, Shafran said.

“Just knowing a judge isn’t immediate grounds for disqualification of that judge,” Shafran said.

The minority opinion suggested a Facebook friendship between judge and attorney was a categorical disqualification, Shafran said.

While in agreement with the majority, one justice wrote a concurring opinion where “he suggested that judges, upon being confirmed, delete their social media and delete their Facebook to avoid any potential conflicts to alleged impropriety,” Shafran said.

Original author: Adam Faderewski
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In Memoriam – March 2019

The State Bar of Texas’ Membership Department was informed in March 2019 of the deaths of these members. We join the officers and directors of the State Bar in expressing our deepest sympathy.

• Laura R. Allbritton, 66, of Pipe Creek, died February 17, 2019. She received her law degree from the University of Iowa College of Law and was admitted to the Texas Bar in 1981.
• Harold B. Berman, 92, of Dallas, died March 25, 2019. He received his law degree from Harvard Law School and was admitted to the Texas Bar in 1950.
• Rachel H. Blumenfeld, 56, of Knoxville, Tennessee, died February 17, 2019. She received her law degree from Memphis State University College of Law and was admitted to the Texas Bar in 1989.
• T. Wayne Brimhall, 77, of Hilltop Lakes, died February 7, 2018. He received his law degree from Loyola University New Orleans College of Law and was admitted to the Texas Bar in 1974.
• Charles Lee Caperton, 81, of Dallas, died February 16, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1964.
• Alfred J. Coco, 84, of Denver, Colorado, died January 21, 2018. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1960.
• Lauren Cook, 38, of Kaufman, died March 11, 2019. She received her law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 2007.
• Scott S. Cramer, 66, of Fort Collins, Colorado, died December 6, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1980.
• James A. Cribbs, 86, of Pantego, died March 15, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1955.
• James E. Cummins, 90, of Corsicana, died February 24, 2019. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1981.
• James R. Dallas, 75, of Albuquerque, New Mexico, died January 28, 2019. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1972.
• Houston Lee Daniel, 73, of Liberty, died March 6, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1972.
• John J. Davis, 73, of Angleton, died June 16, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1973.
• John Jay Douglass, 96, of Houston, died January 24, 2019. He received his law degree from the University of Virginia School of Law and was admitted to the Texas Bar in 1975.
• David L. Elmers, 68, of Belden, Mississippi, died November 16, 2018. He received his law degree from the University of Mississippi School of Law and was admitted to the Texas Bar in 1977.
• Bryant W. Ferrell, 97, of Garland, died March 21, 2019. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1949.
• Michael John Foley, 77, of Key West, Florida, died January 31, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1976.
• Marlin L. Gilbert, 80, of Georgetown, died May 14, 2018. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1967.
• Edmund Gomez, 68, of Dallas, died March 3, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1977.
• David F. Gossom, 61, of Wichita Falls, died February 28, 2019. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1982.
• Ralph Hall, 95, of Rockwall, died March 5, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1951.
• James F. Hart, 86, of Clovis, New Mexico, died February 7, 2019. He received his law degree from the University of Arkansas School of Law and was admitted to the Texas Bar in 1962.
• Joel Held, 79, of Edmond, Oklahoma, died March 17, 2019. He received his law degree from Boston University School of Law and was admitted to the Texas Bar in 1974.
• Ben E. Jarvis, 93, of Tyler, died September 19, 2018. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1951.
• Vincent R. Krist, 70, of Irving, died February 20, 2019. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1973.
• J.D. Lambright, 69, of Conroe, died March 9, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1999.
• Victor Eugene Lanfear Jr., 89, of San Antonio, died January 21, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1952.
• Israel Lerner, 92, of Houston, died February 28, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1951.
• Fredia J. Lewis, 78, of Houston, died December 27, 2017. She received her law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1978.
• Ruth Diane Lown, 62, of San Antonio, died August 17, 2018. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1981.
• John L. McConn Jr., 95, of Houston, died January 6, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1949.
• William C. McDonald Jr., 90, of Fort Stockton, died March 14, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1956.
• James Nowlin, 63, of San Antonio, died March 22, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1980.
• John W. Payne, 90, of Ennis, died March 16, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1961.
• Warren Young Pennington, 91, of LaGrange, died June 22, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1953.
• William Charles Powers Jr., 72, of Austin, died March 10, 2019. He received his law degree from Harvard Law School and was admitted to the Texas Bar in 1980.
• Harry Ton Price, 77, of Napa, California, died February 12, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1968.
• Leslie Rasner, 95, of Waco, died November 22, 2017. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1950.
• Patrick J. Sheehy, 69, of Washington, D.C., died January 8, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1974.
• H.C. Sibley Jr., 76, of Dallas, died March 25, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1967.
• Charles A. Thompson, 84, of Dallas, died March 13, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1966.
• Oscar Turner III, 81, of Katy, died January 15, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1964.
• Donald Ray Uher, 81, of Bay City, died March 9, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1962.
• William D. Vaughn, 68, of Austin, died October 5, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1975.
• Samuel N. Vilches Jr., 87, of Dallas, died February 22, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1964.
• James Vincent, 80, of Reddick, Florida, died March 3, 2019. He received his law degree from Drake University Law School and was admitted to the Texas Bar in 1993.
• Rhonald Walker, 80, of Garland, died February 20, 2019. She received her law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1968.
• Patrick David West, 58, of Fort Worth, died February 26, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1987.
• John Doty Williamson, 84, of Dallas, died March 1, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1957.
• John Houston Withers, 83, of Dallas, died March 18, 2019. He received his law degree from Southern Methodist University and was admitted to the Texas Bar in 1964.

If you would like to have a memorial for a loved one published in the Texas Bar Journal, please go to texasbar.com/memorials. If you have any questions, please don’t hesitate to contact the Texas Bar Journal at (512) 427-1701 or toll-free at (800) 204-2222, ext. 1701.

Original author: Adam Faderewski
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