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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Top 10 from Texas Bar Today: Fraud, Appeals, and Best Practices

Originally published by Joanna Herzik.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Best Practices with Virtual Mediation Jonathan James of Hance Wickham, P.C. in Dallas

9. Remote Arbitration Best Practices: Security and Confidentiality – Kyle Bailey of Karl Bayer @karlbayer in Austin

8. Writing Wednesday – write like Star Wars’ editorsDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

7. “Provisional Authority” to Control Executive Rights Not AssignableCharles Sartain and Kelley Clark Morris of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

6. Navigating Fraud and Cybersecurity Concerns While Working From HomeCris Feldman of Feldman & Feldman, PC. in Houston

5. Coronavirus Scams: Fraud in the Time of a Pandemic – Lori-Ann Craig of the Harris County Law Libary @HCLawLibrary in Houston

4. Texas appeals court asked to reconsider same-sex divorce caseLaura Dale of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

3. “But For” or “Motivating Factor” Under the FMLA? The Fifth Circuit May Soon Clarify and Join the Circuit SplitFunto P. Seton and Esteban Shardonofsky of Seyfarth Shaw LLP @seyfarthshawLLP in Houston

2. Texas Court of Appeals Rules on Apportionment and Cost of Goods SoldEdward Corts of Freeman Law @FreemanLaw_PLLC in Frisco

1. Policyholders Continue to Prevail As “Top Dogs” – Court Confirms Payment of Appraisal Award Not a Bar to Insurer’s Liability Under Prompt Payment of Claims ActKay Morgan of Merlin Law Group @MerlinLawGroup in Houston

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

Original author: Joanna Herzik
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Coronavirus Legal News Briefing — (5.15.20)

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Companies fear coronavirus liability lawsuits. So far, few exist — Court records show few such cases have been filed and some legal experts say the threat of liability is exaggerated because of the difficulty of proving where someone was infected. — Reuters

Analysis: The path to emergency powers in Texas might run through the courts — State and local governments are at odds over what should and should not be allowed during a pandemic — a debate over health, economics and civil liberties. The old sparring partners have increasingly appealed to a referee: the courts. — The Texas Tribune

Texas lawsuit against nursing home over worker’s COVID-19 death could point to trend in litigation — Plaintiffs attorneys across the country are gearing up to sue over injuries and deaths from COVID-19 exposure. They’ve already targeted cruise ships, a meat-processing plant and elderly care facilities. (Subscription required) — Texas Lawyer

75% of associates surveyed say job security and pay cuts are top worry; who got hit this week? — As reports build of pay cuts, furloughs and layoffs at law firms, it’s understandable that associates are concerned. — ABA Journal

Nurse-attorneys? Yes. Lawyers are donning scrubs again to help battle COVID-19 — Colleen Carboy, a Lewisville solo practitioner and nurse, has paused her law practice to return to nursing in a COVID-19 hospital unit in New Jersey. She’s not the only nurse-attorney to do this. (Subscription required) — Texas Lawyer

Texas appeals court allows expansion of voting by mail during ongoing legal fight — The appeals court ruled against Texas Attorney General Ken Paxton, who argued that a lower court ruling expanding who can qualify for an absentee ballot during the coronavirus pandemic should have no effect while he appeals it. — The Texas Tribune

Eviction proceedings and debt collections can resume this month, Texas Supreme Court orders — The state’s highest civil court initially paused eviction proceedings and debt collections during the coronavirus pandemic. Those moratoriums are being lifted after more than 1.9 million Texans filed for unemployment. — The Texas Tribune

Supreme Court denies appeal by inmates over Texas prison’s COVID-19 protections — The Supreme Court denied a request by two inmates to require a Texas prison to put additional measures in place to protect against the spread of COVID-19. — UPI

A dangerous limbo: Probation and parole in the time of COVID-19 — More than 15,000 people in Texas who have been granted parole but still can’t go home, according to data published by the state corrections department. — ABA Journal

Amarillo lawyers warn against writing your will in panic during COVID-19 crisis (video) — Amarillo lawyers say they are seeing more people wanting assistance making a will during the coronavirus outbreak. — KFDA – Amarillo

7.000 free masks go quickly at local giveaway (video) — The law firm of Herrman & Herrman sponsored another drive-thru face mask give-away. The turnout was huge. — KRIS – Corpus Christi

Commentary: Attorneys connecting through social media in times of isolation — Here all of it is shared and it feels like a safe space where one can finally feel heard and understood. — Above the Law

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

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

Original author: Amy Starnes
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AG Law Weekly Round Up

Originally published by Tiffany Dowell.

 

Happy Friday!  It’s been a busy couple of weeks on the ag law front.  Here are some of the cases in the news.

Photo by David Beale on Unsplash

*Appellate court finds Texas Central Railroad is a “railroad company” and an “interurban electric railway.”  One of the main legal battles over the proposed high speed rail project in Central Texas has been whether the builder, Texas Central Railroad & Infrastructure, Inc. qualifies as a “railroad company” or an “interurban electric railway.”  If so, the company would likely be entitled to use eminent domain to condemn property upon which it will build the train tracks.  Opponents have argued that because the company currently owns not trains or tracks, they do not qualify and, therefore, are not entitled to use eminent domain.   A Leon County Judge previously sided with the challengers, ruling the company did not qualify under either definition.  Last week, the Corpus Christi Court of Appeals reversed that decision, holding that Texas Central Railroad & Infrastructure was both a railroad company and an interurban electric railway.   [Read Opinion here.]  An appeal is expected.  I’ve got a full blog post on this opinion coming soon.

*SCOTUS remands Kinder Morgan indirect discharge case back to 4th Circuit.  As was expected, the United States Supreme Court remanded the Kinder Morgan Energy Partners LP v. Upstate Forever so that the case may be considered by the United States Court of Appeals for the Fourth Circuit in light of the Court’s “functional equivalent” test as set forth in County of Maui v. Hawaii Wildlife Fund.  [Read more on County of Maui here.]  In Kinder Morgan, The Supreme Court had previously accepted certiorari on the case, but had not moved forward with oral argument.  [Read article here and remand order here.]  To hear me chat about the County of Maui opinion and potential impacts with two of the leading water law scholars in the US, be sure to check out the newest Ag Law in the Field episode that will release next Thursday morning.  [Click here or listen on your favorite podcast app.]

*Vista Ridge pipeline begins delivering water to San Antonio.  If you’ve been a blog follower for several years, you’ll remember we extensively discussed the Vista Ridge pipeline project that pipes groundwater from rural Burleson and Milam Counties to San Antonio.  [Read prior blog post here.]  Recently, the first deliveries pursuant to that project began. [Read article here.]

*NALC publishes compilation of state’s Unmanned Aerial Vehicle (“Drone”) laws.  The National Agriculture Law Center is famous for their state-by-state compilation resources and they’ve added a new topic recently: Drones.  Click here to see their 50 -state compilation of drone laws and regulations.

Upcoming Presentations

I do not currently have anything scheduled in the next two weeks, but I’ve got several potential webinars in the hopper, so be sure to keep an eye on my “Upcoming Presentations” page to know when and where I’ll be popping up!  Also, don’t forget about our Online Ranchers Leasing Workshop, which will allow you to access our three-hour long leasing workshop from the comfort of your own home, anytime you like, at your own pace.  For more information or to register, click here.

 

The post May 15, 2020 Weekly Round Up appeared first on Texas Agriculture Law.

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

Original author: Tiffany Dowell
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Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

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

Original author: On behalf of Laura Dale
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Coronavirus Legal News Briefing (5.14.20)

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Commentary: What can law firm leaders learn from a pandemic? — This is the moment to demonstrate leadership, and the opportunity should not be wasted. — ABA Journal

Pay cuts, layoffs, and more: How law firms are managing the pandemic — A firm-by-firm guide to how law firms are protecting their bottom lines from the economic fallout of the coronavirus. (Subscription required) — Texas Lawyer

Texas attorney general asks state Supreme Court to step into fight over voting by mail — Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.— The Texas Tribune

New York lawyer who was ‘patient zero’ for COVID-19 community spread speaks out on his unlikely recovery (video) — He credits his lawyer wife for saving his life. — Above the Law

Family of health care worker who died of coronavirus sues nursing home — The family of an Austin nursing home worker who died of coronavirus last month sued the facility and its operator for $1 million in damages. — Austin American-Statesman

Trump ramps up expulsions of migrant youth, citing virus — The administration is quickly expelling them under an emergency declaration citing the coronavirus pandemic, with 600 minors expelled in April alone. — The Associated Press

Coronavirus tests are supposed to be free. Some Texans are still being saddled with large bills. — Congress directed most insurance companies to cover test costs for insured patients in March, and has promised to reimburse providers for testing those who are uninsured. — The Texas Tribune

‘Love & Hip Hop’ star, Texas engineer charged with coronavirus bailout fraud — The U.S. Department of Justice (DOJ) on Wednesday said it has charged two more individuals for defrauding the U.S. government coronavirus bailout program. — Reuters

Wisconsin high court tosses out governor’s stay-home order — The Wisconsin Supreme Court struck down Gov. Tony Evers’ coronavirus stay-at-home order Wednesday, ruling that his administration overstepped its authority when it extended it for another month without consulting legislators. — The Associated Press

SBA and Texas-based loan agency to offer webinar — The Small Business Administration and PeopleFund, a loan agency based in Austin, are teaming up for a webinar on Friday that will provide information about available disaster assistance resources and is open to all Texas residents. — Victoria Advocate

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

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

Original author: Amy Starnes
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“Provisional Authority” to Control Executive Rights Not Assignable

Originally published by Charles Sartain.

Co-author Kelley Clark Morris

Geary v. Two Bow Ranch Limited Partnership* is an example of the havoc an unusual contract provision can create.

In 1981, Geary and other Grantors executed a warranty deed conveying 2,614 acres (let’s call it the Property) in Bandera County, Texas, to Meader, Two Bow’s predecessor. The Grantors reserved an undivided one-half mineral interest, and conveyed one-half. The deed conveyed to Meader the ”executory rights” to its minerals and reserved the same to Grantors over their half. The deed included this “Provisional Authority” language:

“Grantee may control the executory rights pertaining to the minerals provided the Grantors and Grantee share equally in any and all proceeds related thereto.”

Two Bow executed an oil and gas lease to Whiting, receiving a bonus of $174,498, which the Grantors contend should be shared with them. The Grantors sued, alleging that Two Bow owed contractual and fiduciary duties arising from the 1981 Deed. Two Bow either (1) breached its duty to lease in executing the lease covering only Two Bow’s one-half mineral interest or, alternatively, (2) breached its duty to share the lease bonus payments if the 2011 Lease was for the entire 100 percent.

The issues

Did Two Bow have the authority (and consequently the duty) to exercise the executive rights in the Grantors’ minerals? Was the Provisional Authority assignable? If so, was it assigned to Two Bow?

The plain language of the Deed did not convey the executive rights in the Grantor’ ‘minerals as part of “the Property” conveyed to Meader. The Property, as defined, did not include ownership of either the Grantors’ one-half mineral interest or the executive rights in those minerals, both of which were expressly reserved to the Grantors.

The Provisional Authority clause gave Meader conditional permission to exercise the executive rights held by the Grantors. But the deed did not impose on Meader any obligation or duty to exercise those rights. (Note the use of ”may”.) Meader was free to lease its one-half mineral interest or it could choose to lease the entire mineral interest, provided it shared the benefits equally with the grantors.

The Provisional Authority did not pass to future grantees by the 1981 Deed. The Deed’s plain language excluded the Provisional Authority from the definition of “the Property,” Moreover, while the Property was conveyed to Meader’s ” … heirs, successors and assigns forever … ” the authority was not. The Provisional Authority did not pass with the Property through subsequent transfers. Got that? So-called boilerplate that we often take for granted, such as “heirs, successors and assigns” has meaning.

But contract rights are generally assignable, right? Yes, except that the deeds from Meader to an intermediate buyer and then to Two Bow did not mention the Provisional Authority or the executive rights in the reserved one-half mineral interest, so the Provisional Authority was not contractually assigned.

The result

Two Bow had no authority to exercise the Grantors’ executive rights. Thus, the 2011 Lease included only Two Bow’s one-half undivided mineral interest, and the lease bonus was attributable only to that one-half mineral interest. Two Bow breached no duty to the Grantors and owed them no damages.

*No link today. Texas Judicial Branch was hacked (by someone fighting authority, I guess). The decision was January 22, 2020, from the Texas Court of Appeals San Antonio.

But we have a musical interlude

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

Original author: Charles Sartain
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Coronavirus Scams: Fraud in the Time of a Pandemic

Originally published by Lori-Ann Craig.

road-sign-464641_1280.jpg

Sadly, but not surprisingly, even with the state of emergency and health crisis affecting the United States and the entire world, scammers throughout the world are not pausing in their work of taking advantage of unsuspecting and vulnerable people. For the period of January 1, 2020 to May 12, 2020, the Federal Trade Commission (FTC), the U.S. governmental agency tasked with protecting consumers from unfair and deceptive business practices, received 42,151 COVID-19-related complaints, resulting in a total fraud loss of $29.93M. (Those figures are more than double what they were for the period ending April 12, 2020). Additionally, eConsumer.gov, an initiative of the International Consumer Protection and Enforcement Network received 980 overall of coronavirus-related fraud reports during the same period.

Coronavirus scams run the gamut from fake treatments and fake testing sites to undelivered goods, such as cleaning, medical, and household supplies, to fake charities. The FTC and the Food and Drug Administration (FDA) have been working together to put a stop to coronavirus treatment scams. These scams usually relate to unapproved and misbranded products that claim to treat or prevent the coronavirus. Products include teas, essential oils, and colloidal silver. The claims of these products have not been backed by any evidence. Moreover, the FDA has stated that there are no currently approved drugs or vaccines to treat or prevent the coronavirus. The FTC has also warned consumers to be suspicious of ads for test kits. So far, there is only one home diagnostic test kit that has been approved by the FDA, but the authorization is limited only to testing at Rutgers Clinical Genomics Laboratory. Similarly, the FTC is cautioning consumers that not every testing site is legitimate. It recommends consulting with a doctor first or getting a referral, if possible. If there is any question as to a site’s legitimacy, the FTC suggests contacting local law enforcement.

Another coronavirus-related scam that the FTC has been watching relates to the economic impact payments or so-called stimulus payments issued by the federal government. The FTC is reminding consumers to avoid providing anyone with their personal information and stressing that nothing needs to be done to receive your payment (so long as you filed taxes for 2018 and/or 2019).

Consumers who have knowledge of or suspect that they have been a victim of a coronavirus scam can report it by filing a complaint with the FTC using its online reporting system. Consumers in Arkansas, Louisiana, New Mexico, Oklahoma, and Texas can also contact the FTC’s Southwest Region Field Office in Dallas at 877-FTC-HELP or by mail to the address posted on its website.

In addition to the FTC, consumers who have been defrauded can file a report with the National Center for Disaster Fraud (NCDF) Hotline at 866-720-5721 or complete the NCDF Disaster Complaint Form available through the website of the United States Department of Justice. Texas residents can also report disaster scams to the Attorney General of Texas using the web form found on the Consumer Protection page or by calling 800-621-0508.

Scams will always exist and scammers will continue to seek susceptible prey. Learn to protect yourself from scammers by following these tips from the FTC:

Ignore offers for home vaccinations and test kits; Hang up on robocalls; Watch out for phishing emails and text messages; Research before you donate; and Stay in the know.

Remember that the best way to defeat scammers is to arm yourself with a little knowledge. Remember, it’s just like the NBCUniversal’s public service initiative states: “The More You Know.”

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

Original author: Lori-Ann Craig
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Policyholders Continue to Prevail As “Top Dogs” – Court Confirms Payment of Appraisal Award Not a Bar to Insurer’s Liability Under Prompt Payment of Claims Act

Originally published by Kay Morgan.

Several weeks ago, the Texas Supreme Court issued a trilogy of per curiam opinions: TopDog Properties v. GuideOne National Insurance Company,1 Alvarez v. State Farm Lloyds,2 and Lazos v. State Farm Lloyds,3 and remanded these cases because the trial courts and appellate courts failed to follow the Texas Supreme Court’s opinions in Barbara Technologies Corp…. Continue Reading

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

Original author: Kay Morgan
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Quiet Title In Texas

Originally published by A. M..

Suit To Quiet Title Texas  A suit to quiet title is a legal procedure to establish a person’s right to ownership of real property against other adverse claimants. It helps clarify the ownership and validity of contracts or liens on a piece of property. An action to quiet title is different from a trespass to […]

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

Original author: A. M.
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Texas Court of Appeals Rules on Apportionment and Cost of Goods Sold

Originally published by Edward Corts.

On May 1, 2020 the Texas Court of Appeals Third District ruled in favor the Texas Comptroller of Public Accounts in the matter of Hegar et al. v. Sirius XM Radio, Inc., et al., Tex. App. Ct. (3rd Dist.), No. 03-18-00573-CV, and reversed the refund that was awarded to Sirius XM Radio, Inc. by the Travis County District Court in Sirius XM Radio, Inc. v. Hegar, Cause No. D-1-GN-16-000739 (261st Dist. Ct., Travis County, Tex. Aug. 3, 2018).

 

 

Background

Sirius XM Radio, Inc. (hereinafter “Taxpayer”) is a foreign corporation that operates a satellite subscription-based satellite radio service, consisting of more than 150 channels of music, sports, news, talk, entertainment, traffic, and weather channels to subscribers throughout the United States.  During the 2010 and 2011 franchise tax report years (collectively the “Report Years”) Taxpayer’s headquarters, transmission equipment, and production studios were located almost exclusively outside of Texas.  Approximately 70 percent of Taxpayer’s programming consisted of original content produced by Taxpayer specifically for its subscribers and could be obtained only by subscribing to Taxpayer’s services.  This original content was produced from multiple studios owned and operated by Taxpayer, primarily in New York City and Washington D.C., and in smaller remote studios in Cleveland, Los Angeles, Memphis, Nashville, and Orlando.  Taxpayer’s production from Texas was limited to one channel, which transmitted five days a week for no more than five hours a day from a location in Texas which was not owned or leased by Taxpayer.  To deliver its programming, Taxpayer transmitted its programs to satellites from facilities outside of Texas.

For the Report Years, Taxpayer filed franchise tax returns apportioning its subscription receipts based on the location of where its primary production facilities were located, which were outside of Texas.  When the Texas Comptroller of Public Accounts (hereinafter “Comptroller”) audited Taxpayer’s franchise tax reports for the Report Years, the Comptroller argued that Taxpayer’s subscription receipts should be apportioned to Texas based on the locations where the satellite transmissions were received by Taxpayer’s subscribers and adjusted Taxpayer’s Texas apportionment factor accordingly.  Additionally, during the audit, Taxpayer requested that it be allowed to revise its Cost of Goods Sold (“COGS”) deduction to include the revenue share and hardware subsidy payments that it made to automobile manufacturers in exchange for the manufacturers’ installation of satellite-enabled radios in their vehicles.  The Comptroller rejected this request.

Taxpayer disagreed with the Comptroller’s additional assessment of tax, paid the additional tax assessed and filed a lawsuit requesting a refund in district court in Travis County.  At trial, Taxpayer argued that it had correctly apportioned it subscription receipts based on the location where Taxpayer’s services were produced and on the location of the fair market value of the services in Texas.  Further Taxpayer argued that it was entitled to include the revenue share and hardware subsidy payments that it made in its COGS deduction.

District Court Ruling

The district court found in favor of the Taxpayer.  The district court cited to the end-product-act test and determined that it was origin-based.  The court found that since the Taxpayer performed its services both inside and outside the state of Texas, its receipts were properly apportioned to Texas based on the fair market value of the services performed in Texas. Additionally, the district court found that the Taxpayer had correctly apportioned its Texas receipts for the Report Years and was entitled to a refund on the additional taxes it had paid.

Further, the district court found that the Taxpayer was entitled to include in its COGS deductions its direct costs of producing acquiring and using its live and prerecorded radio programs.  The court also ruled that the Taxpayer was not entitled to include expenses characterized as revenue share and hardware subsidies in the COGS calculation.  Interestingly, the district court provided no analysis as to its rulings regarding the COGS calculation or why it allowed a COGS deduction for items that Taxpayer had not requested.

Appeals Court Opinion

On appeal, the Comptroller challenged the district court’s holdings regarding both apportionment and also the COGS.  The Comptroller argued on appeal that the district court had misapplied the end-product-act test in determining that the “receipt producing , end product” act was the location of Taxpayer’s production and distribution activities.  The Comptroller argued that the only activity that could be plausibly described as the “receipt producing, end product act” was the actual performance of audible radio services for the customers.  Put another way, the Comptroller argued that every subscription receipt from a Texas customer is a receipt from a service performed in Texas.

The Court of Appeals agreed with the Comptroller’s argument.  The Appeals Court found that the evidence established that the services for which the Taxpayer’s customers contracted, and that resulted in the subscription revenue  at issue, was the receipt of Taxpayer’s programming. Per the terms of the contract signed by the subscriber, each subscription was tied to one receiver, which unscrambles and decodes an encrypted satellite signal.  The receipt producing, end-product act occurred where the satellite-enabled radio was located, which can be reasonably be presumed to be where the subscriber resides.

With regards to COGS, the Taxpayer argued that because the radios were necessary for customers to receive the programming, the costs related to the radios was deductible.  The Court of Appeals found that while radio programs are included in the definition of “tangible personal property”, Taxpayer’s customers receive only a right to access the listen to the program content, which does not qualify as sale of tangible persona’ property, and there are not goods for the purposes of calculation COGS.

Observations

This is a curious case as it really does little to resolve the issue of sourcing of services.  Additionally, this opinion does little to distinguish itself from the Westcott Commc’ns, Inc. v. Strayhorn, 104 S.W.3d 141 (Tex. App.—Austin 2003, pet. denied).  Westcott held that for receipts to be taxable by Texas, the act done or property producing the income must be located in Texas; it is the localization of the transaction in Texas and not the place of physical handing over or receiving of money that is significant.  This ruling in Westcott, in my opinion could be construed to almost be contrary to the above ruling.  However, the Third Court of Appeals did not overturn the holding in Westcott, but it also provided little on how to distinguish the two cases.  It will be interesting to see if the Taxpayer appeals this decision to the Texas Supreme Court, and how the Texas Supreme Court would rule.

The post Texas Court of Appeals Rules on Apportionment and Cost of Goods Sold appeared first on Freeman Law.

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

Original author: Edward Corts
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TYLA Director Spotlight: Nicholas Mosser

Editor’s Note: In this blog series, we are getting to know the members of the Texas Young Lawyers Association Board of Directors. TYLA, commonly called the “public service arm” of the State Bar of Texas, works to facilitate the administration of justice, foster respect for the law, and advance the role of the legal profession in serving the public. All TYLA programs are accomplished through the volunteer efforts of its board and committee members, with the cooperation of local affiliate young lawyers associations. Learn more at tyla.org.

Name: Nicholas Mosser

Firm: Mosser Law PLLC

Area of Law You Practice: Appeals and Tax

Position Held in TYLA: District 4 Director

How did you get involved in bar service? Collin County Young Lawyers

What is your favorite TYLA project and why? The attorney wellness projects. (See http://texaslawyercare.tyla.org/.)

What tips can you give to other attorneys to manage stress? See a therapist and stop working at some point.

What do you do in your spare time? Play board games.

What is one thing most people don’t know about you? I like heavy metal.

Anything else you wish to share? I have a new puppy named Seb(astian vettel).

Original author: Texas Young Lawyers Association (TYLA)
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Texas legal aid providers ready to help renters, provide FAQs

Texas legal aid organizations are at the forefront helping low-income individuals and families navigate issues including eviction, foreclosure, bankruptcy, and other personal and financial crises created or worsened by the COVID-19 pandemic.

The organizations ready and able to help Texans with these concerns are listed below, followed by the area of the state they serve. Click the link on the organization name to go to the organization’s website and learn how to contact it.

Legal Aid of NorthWest Texas (serving North and West Texas) Lone Star Legal Aid (serving Northeast, East, and Southeast Texas) Texas Legal Services Center (statewide) Texas RioGrande Legal Aid (serving South and West Texas)

Frequently Asked Questions

The organizations also have created the following frequently asked questions regarding rental housing matters in Texas. Please go to TexasLawHelp.org for information specific to where you live, as some cities and counties have delayed certain proceedings beyond the dates listed below.

I heard that landlords are not evicting people in Texas right now. Is this true?

Yes and No. A landlord may file in court to evict you right now, but courts cannot hold a hearing to decide the matter until after May 18, 2020. However, if a landlord says that there is a threat of physical harm or criminal activity, a court may proceed with an eviction. A case that involves nonpayment of rent or late fees or other charges may not proceed until later this summer if the property has a mortgage that is backed by the federal government or is federally subsidized or has received tax credits.

If I am evicted by the justice court on May 19, 2020, how soon would the landlord be able to force me to leave?

The earliest a constable or sheriff could come and force you to leave is after May 25, 2020, unless you appeal the case to county court which must be done within five days of the date the judgment is signed (counting weekends and holidays).

Why May 25, 2020?

In response to the COVID-19 pandemic, the Supreme Court of Texas has halted most eviction hearings in Texas until after May 18, 2020. Officers cannot post 24-hour removal notices until after May 25, 2020. The 24-hour removal notice will state the date and time the constable will return to remove you if you have not moved. Many local governments have suspended evictions as well. This means your landlord can’t start the eviction process or continue a process started before the order until at least after May 18, 2020.

My landlord told me I had to be out by May 10, 2020. Can they make me leave on May 10th?

No. Before your landlord can force you to leave, they must follow the legal process required in Texas. The landlord must first file an eviction lawsuit, and the justice court must hold a trial and sign a judgment of eviction. If no appeal is filed in five days, the constable must give you at least a 24-hour notice to leave a residence. The statewide emergency order says that there will be no 24-hour notices until after May 25, 2020.

If my landlord files an eviction case against me, does that mean I will be evicted?

Not necessarily. Your landlord must still prove in court that you violated your lease and that they followed the eviction process correctly, including by giving you a notice to vacate. You will have an opportunity to raise any defenses to eviction, for example that your landlord is covered by the CARES Act and should not have filed the eviction case against you, or that you do not owe what your landlord says you do. Also, sometimes at court the parties work it out so that no judgement is issued.

Do I need to pay rent?

Yes. The state’s emergency order only halts eviction trials and doesn’t mean that you do not owe rent. If you do not pay it, your landlord can still file an eviction that will be heard when the courts get to it, after the order has expired. If you are unable to pay the rent, you should talk to your landlord and attempt to reach a payment agreement or forbearance plan.

What if I can’t pay my rent because I haven’t been working?

Texas has loosened its requirements for filing unemployment. Texans who lost their jobs due to the COVID-19 crisis can apply for unemployment benefits either online at Texas Workforce Commission (TWC) or by phone at 800-939-6631.

Original author: Amy Starnes
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Coronavirus Legal News Briefing — May 8, 2020

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

The good and bad news: Firms continue to announce cuts, but it’s at slower pace — More law firms announced pay cuts, layoffs and furloughs this week, but the pace is slowing. — ABA Journal

AAML survey uncovers difficulties for family law attorneys during COVID-19 pandemic: A Q&A with Susan Myres — The survey found that even though demand was there, circumstances caused by the pandemic make it difficult for clients to pursue divorce right now. (Subscription required) — Texas Lawyer

Stay-at-home lawsuits are failing, but judges may get impatient — U.S courts won’t block governors’ stay-at-home-orders. At least not yet. — BloombergQuint

Attorney: There are ways business owners can prevent lawsuits involving COVID-19 (video) — Attorney Daniel Hernandez says the best thing a business owner can due to avoid being sued during the pandemic is to put precautions and policies in place that protect staff and customers. — KBTX – Bryan

Commentary: Pandemic forces Supreme Court to change. What’s next for the legal community? — The law is notoriously slow to change, but the coronavirus could lead to major reforms for the foreseeable future, if not beyond. — Fort Worth Injury Attorney blog

Texas COVID-19 cases in immigrant detention quadruple in two weeks, as ICE transfers continue (audio) — Many of these cases can be traced back to immigration transfers, since detainees are being moved to and from different detention facilities during the COVID-19 pandemic. — Houston Public Media

SCOTUS refuses to block Pennsylvania order shutting down most businesses — The U.S. Supreme Court has refused to block enforcement of a Pennsylvania executive order that shuts down businesses if they are not “life-sustaining.” — ABA Journal

Neiman Marcus becomes 2nd major retailer to seek Chapter 11 — Dallas-based Neiman Marcus, which operates 43 stores, said it expects to emerge from bankruptcy by this coming fall. — The Associated Press

Texas attorney swept up in political storm over his representation of a jailed Dallas salon owner — Although he’s typically an intellectual property litigtor, Arlington attorney Warren Norred has found himself in the eye of a political hurricane by representing Shelley Luther, owner of Salon A La Mode in Dallas. (Subscription required) — Texas Lawyer

Dallas salon owner released from county jail after defying orders by reopening early — The order followed Gov. Greg Abbott’s announcement that he was eliminating jail time for Texans who violate stay at home orders. — The Texas Tribune

Fort Worth landlord jailed and sued after cutting grandmother’s utilities when she was short on rent (video) — A Fort Worth-area landlord was charged with contempt and sent to the Tarrant County Jail after ignoring a judge’s order. — WFAA – Dallas

What summer camps in Texas might look like due to the coronavirus impact (video) — Many parents are still waiting to find out if summer camps will be allowed to open. And, if so, how will hundreds of kids practice social distancing? — KPRC – Houston

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Original author: Amy Starnes
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May must-reads

Check out the May issue of the Texas Bar Journal and the staff’s picks: a focus on practicing during the COVID-19 pandemic, from technology tips to well-being. And don’t forget to check out Movers and Shakers, Disciplinary Actions, and Memorials.

Pandemically Challenged
Teleworking in COVID-19 and what you need to know.
By Jefferson W. Fisher

Disaster Planning for Texas Appellate Practitioners
General guidelines attorneys can follow during the coronavirus pandemic.
By Kirk Cooper

How Small Law Firms in Texas Can Benefit From the $2T Stimulus Package
By Philip Silberman

Practicing Well-Being
What lawyers can do to take care of themselves during the coronavirus crisis.
By Chris Ritter

Original author: Eric Quitugua
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Texas Bar Foundation awards $20,000 to Alliance for Children      

The Texas Bar Foundation has awarded $20,000 to the Alliance for Children. The grant will aide the Alliance for Children Family Advocate program, which includes court accompaniment services and the provision of emergency needs.

The program provides services to families affected by child abuse. Parents and other protective caregivers are equipped with resources and assistance navigating the legal system while child abuse victims are given basic needs and accompaniment to what may be stressful and frightening court appearances.

For more information, go to allianceforchildren.org.

Original author: Eric Quitugua
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Coronavirus Legal News Briefing — May 7, 2020

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Things will change when Texas courthouses reopen: Judiciary lays Road map for after June 1 — Judges in face masks, constant courtroom cleanings, only two people per elevator and counsel tables moved six feet apart: These are some changes lawyers may notice when Texas courts start opening back up after June 1. (Subscription required) — Texas Lawyer

Texas Democrats ask a court to stop Attorney General Ken Paxton’s threats over mail-in voting — The Texas Democratic Party has asked a court to order state officials not to interfere with a previous court order that opened up mail-in voting in the state. — KUT – Austin

Do appellate deadlines apply during the COVID-19 pandemic? (video) — The Texas Supreme Court’s emergency orders do not automatically extend any appellate deadlines. — Appeal Plus blog

Analysis: Remote depositions bring ethics considerations for lawyers — This discussion looks at some of the most common ethical questions facing attorneys taking or defending remote depositions. (Subscription required) — Law360

COVID-19 procedures to reopen economy: Back to work is not necessarily back to normal — The question as to what measures to take to protect the health and safety of the public looms over the hopes of an economic recovery. — Defending Management blog

Even before coronavirus hit, debt collection lawsuits skyrocketed (audio) — The Supreme Court of Texas put a temporary moratorium on some court-ordered debt collections in response to the coronavirus. — KERA – Dallas

Debt collectors not stopping even as coronavirus pandemic continues (video) — Dominic Ribaudo, a staff attorney with Legal Aid of Northwest Texas, said he has seen an uptick in applications from clients needing help with consumer debt. — KTVT – Fort Worth

H-E-B, Costco, Walmart, Albertsons among grocery stores accused of price-gouging eggs in federal suit — H-E-B is one of three Texas-based grocery stores facing a federal lawsuit after a group of shoppers accused the stores, farms and wholesalers of price-gouging eggs during the coronavirus pandemic. — Austin American-Statesman

Texas DACA recipients working on pandemic’s front lines await Supreme Court ruling — More than 4,000 DACA recipients work in health care in Texas, including many in hospitals. A pending U.S. Supreme Court ruling will decide whether they can continue that work — and stay in the country. — The Texas Tribune

Texas county asks residents to report violations of reopening rules — Harris County has launched a website on which informers can lodge complaints about businesses reopening in violation of the governor’s Covid-19 orders, a move some say goes against the state’s pro-business ethic. — Courthouse News Service

Top Texas officials denounce Dallas salon owner’s jail sentence for defying orders to close — Texas Gov. Greg Abbott and Attorney General Ken Paxton said the seven-day jail sentence was excessive. Paxton called for her immediate release. — The Texas Tribune

Who is Eric Moyé, the Dallas judge who jailed salon owner Shelley Luther? — Those who know state District Judge Eric Moyé say he’s a principled judge with a reverence for the law who doesn’t shy away from tough cases. — The Dallas Morning News

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Original author: Amy Starnes
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Coronavirus Legal News Briefing — May 6, 2020

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Office of Court Administration provides updated guidance for court operation — May 5, 2020 — It reaffirms its instructions to delay all in-person proceedings until June 1 and offers additional guidance for court proceedings after that date. — Texas Bar Blog

As COVID-19 restrictions drag on in Texas, legal challenges gain a foothold — Legal experts say that the restrictions have provided a unique opportunity for substantive legal challenges that could clarify the limitations of the emergency rules. (Subscription required) — Houston Chronicle

Judicial conference asks for more money and judges due to expected COVID-19 backlog — The Judicial Conference of the United States is asking Congress for $36.6 million in funding to make the majority of temporary judgeships permanent and to add more judges to certain courts in anticipation of a backlog of cases due to COVID-19. — Law.com

Analysis: Grand jury suspensions a looming problem for prosecutors — The suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back. (Subscription required) — Law360

Did county attorney break law? — An amended order was filed stating that Matt Mills may have placed himself in legal jeopardy in his refusal to uphold the governor’s mandate. — Hood County News

4 best practices for Biglaw firms that are weathering the storm well — What should successful firms be doing to reassure and support their employees during these tumultuous times? — Above the Law

Texas lawyers assist with employment law, business reopening tips — Texas lawyers are offering tips and general guidance to employers navigating employment issues during the pandemic and considering reopening plans. — Texas Bar Blog

As Texans return to work: Mitigating the risk of COVID-19 in the workplace — For starters, hold off on ordering that pallet of face masks. (Subscription required) — Texas Lawyer

Wife of Dallas meat plant worker who died from virus sues company, claiming it ignored worker safety — Blanca Parra claims in the lawsuit that Quality Sausage took too long to implement safety measures to prevent a COVID-19 outbreak. — The Dallas Morning News

Tax attorneys expect a wave of coronavirus tax appeals — Commercial property owners are gearing up to challenge the tax valuations of their investments in numbers not seen since the economic downturn last decade. — Bisnow

The IRS sent coronavirus relief payments to dead people (audio) — Among the recipients of those $1,200 payments are the bank accounts of dead individuals — a problem that could impact millions of American families. — NPR

US files first criminal charges for defrauding coronavirus bailout program — The U.S. Justice Department on Tuesday brought its first criminal charges against people it accused of defrauding the $660 billion Paycheck Protection Program. — Reuters

Dallas salon owner who refused to close sentenced to seven days in jail, ordered to pay fines — Salon a la Mode owner Shelley Luther reopened Thursday even though the state had required nonessential businesses to remain closed. — The Texas Tribune

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Original author: Amy Starnes
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Spanish legal advice program Consejos Legales returns May 7

The Mexican-American Bar Association of Houston and the Hispanic Bar Association of Houston, in partnership with the Houston Bar Association, will offer Consejos Legales every first Thursday of the month beginning on May 7 from 6 p.m. to 8 p.m.

The program returns in response to the need for legal information and resources in the Spanish-speaking community during the COVID-19 pandemic. Spanish-speaking members of the public can sign up online to have a lawyer call back with legal advice and other resources in a number of legal areas including unemployment; eviction; the Coronavirus Aid, Relief, and Economic (CARES) Act; the Families First Coronavirus Response Act (FFCRA); and more.

For free legal advice over the phone, go to HBA.org/LegalLine to select an available time slot or call 713-759-1133 for more information.

Original author: Eric Quitugua
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In Memoriam for April 2020

The State Bar of Texas’ Membership Department was informed in April 2020 of the deaths of these members. We join the officers and directors of the State Bar in expressing our deepest sympathy.

• R. Burton Ballanfant, 72, of Houston, died March 29, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1972.
• Francis X. Bauer, 75, of Yantis, died March 2, 2020. He received his law degree from Oklahoma City University School of Law and was admitted to the Texas Bar in 1975.
• Camilla M. Bordie, 86, of Dripping Springs, died April 6, 2020. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1969.
• Jess Lee Cariker Jr., 94, of Clearwater, Florida, died April 1, 2020. He received his law degree from George Washington University School of Law and was admitted to the Texas Bar in 1986.
• Colin Joseph Carl, 76, of Austin, died March 22, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1970.
• Alexander Bryan Ching, 52, of Hobbs, New Mexico, died March 30, 2020. He received his law degree from the University of Arizona College of Law and was admitted to the Texas Bar in 1996.
• Robert Don Collier, 73, of Dallas, died April 9, 2020. He received his law degree from Texas Tech University and was admitted to the Texas Bar in 1973.
• Ronald Dale Earle, 78, of Austin, died April 5, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1967.
• Keith M. Fletcher, 63, of Houston, died August 11, 2019. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1979.
• Kermit Fonteno, 83, of Red Oak, died January 7, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1965.
• Louis D. Francis, 85, of Dallas, died March 15, 2020. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1962.
• Galen Lee Gillum, 58, of Prosper, died February 26, 2020. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 2004.
• Roy J. Grogan, 93, of Weatherford, died March 30, 2020. He received his law degree from Duke University School of Law and was admitted to the Texas Bar in 1950.
• Jack Haney, 86, of Huntsville, died April 2, 2020. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1969.
• Richard K. Hardage, 58, of Dallas, died April 3, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1989.
• Milton E. Havlick Jr., 80, of Houston, died April 7, 2020. He received his law degree from the University of Houston Law Center and was admitted to the Texas bar in 1965.
• Larry Steven Hearne, 59, of Floresville, died July 23, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1986.
• Arthur Edward Hewett, 84, of Dallas, died March 24, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1965.
• LeRoy Jahn, 76, of San Antonio, died March 17, 2020. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1968.
• Thomas Kelly Jr., 83, of Santa Rosa, California, died February 24, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1960.
• Shirley R. Levin, 85, of Dallas, died April 7, 2020. She received her law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1968.
• R. Carson Llewellyn Jr., 66, of Houston, died March 1, 2020. He received his law degree from Tulane Law School and was admitted to the Texas Bar in 1986.
• Edward J. Lynch, 88, of Dallas, died February 27, 2020. He received his law degree from Harvard Law School and was admitted to the Texas Bar in 1979.
• Joseph Monroe Marcum, 55, of Corpus Christi, died March 21, 2020. He received his law degree from the University of Arkansas School of Law and was admitted to the Texas Bar in 1991.
• David B. McCall III, 73, of Plano, died March 28, 2020. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1972.
• Kenneth A. McGaw Jr., 90, of Houston, died March 9, 2020. He received his law degree from the University of Illinois College of Law and was admitted to the Texas Bar in 1975.
• Christopher Okonkwo-Attiah II, 29, of Kennesaw, Georgia, died June 29, 2019. He received his law degree from New York University School of Law and was admitted to the Texas Bar in 2018.
• Rosa J. Pace, 86, of Borger, died April 14, 2019. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1956.
• Walter Roy Parr, 80, of Carlsbad, New Mexico, died March 30, 2019. He received his law degree from the University of New Mexico School of Law and was admitted to the Texas Bar in 1990.
• Barry Don Peterson, 73, of Amarillo, died March 31, 2020. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1972.
• Marlow Preston, 76, of Georgetown, died March 22, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1969.
• Ramon L. Rodriguez Jr., 62, of Beaumont, died April 10, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1982.
• Jerry Ronald Rosson, 67, of San Antonio, died April 1, 2020. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1977.
• John H. Seale, 88, of Jasper, died April 1, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1955.
• Sharon Shropshire, 67, of Fort Worth, died October 8, 2019. She received her law degree from the University of San Diego School of Law and was admitted to the Texas Bar in 1990.
• William Bradford Smith, 57, of Flower Mound, died May 22, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1992.
• Susan Stacy, 63, of Pearsall, died September 9, 2019. She received her law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1993.
• William J. Stradley, 80, of Houston, died April 9, 2020. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1967.
• Susan Jane Strelitz, 59, of Austin, died March 26, 2020. She received her law degree from the University of New Mexico School of Law and was admitted to the Texas Bar in 1994.
• Joe DeLay Taylor, 103, of Houston, died April 2, 2020. He received his law degree from the University of Illinois College of Law and was admitted to the Texas Bar in 1970.
• Alfred W. Walker, 94, of Dallas, died April 8, 2020. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1949.

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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