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. Get Started Now for Legal Marketing Success in 2019 – Bruce Vincent of Muse Communications, LLC @MuseCommLLC in Dallas
9. I Used My Biggest Fear to Motivate Me – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas
8. Houston, Harris County to Divert Young, Low-Level Offenders from Prison – Neal Davis of Neal Davis Law Firm, PLLC @NealDavisLaw in Houston
7. Injunction Junction, who’s your Sovereign? – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas
6. Client Communications – Murray Newman of The Law Office of Murray Newman @murraynewman in Houston
5. New Bill “Music Modernization Act” Proposed to Help Songwriters – Peggy Keene of Klemchuk LLP @K_LLP in Dallas
4. Bitcoin Battles: Is Your Spouse Hiding Assets Via Cryptocurrency? – Bryce Hopson of Hance Law Group, P.C. in Dallas
3. Don’t Look a Gift Horse in the Mouth? – Michael B. Cohen @dallaselderlaw of Michael B. Cohen Attorney and Counselor at Law in Dallas
2. Having Your Cake and Eating It Too: Sixth Circuit Rules that Employees Need Not Return Severance Pay Before Suing – John P. Phillips and Linda Schoonmaker of Seyfarth Shaw LLP @seyfarthshawLLP in Houston
1. Can You Fire Someone for Participating in Public Protests? – Alyson Brown of Clouse Brown PLLC @ClouseBrownLaw in Dallas
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Michael Cohen.
Although many realize you can make a tax-free gift of $15,000 per calendar year, per recipient without having to report the gift to the IRS, we often find that most are unaware of unintended adverse consequences that could result from that act of generosity since other issues should often be considered besides the gift tax issue. Many give away $15,000 per year, per person simply to reduce the size of their estate – particularly if they should have an estate that would otherwise be taxable on death (estate taxes). So, for example, if parents, each 60 years old, have adult children, the parents could give a total of $60,000 in a year (the father giving $15,000 to each child and the mother giving $15,000 to each child) without being subject to gift tax or reporting requirements. Most do not realize that if the gift exceeds $15,000 to an individual, it is the donor (in this case, the parents) not the donees (the children in this case) that are responsible for any gift tax and for reporting the gift to the IRS. So, if the father gave $115,000 to one child in year 2018, the father would be subject to the gift tax on the $100,000 excess over the annual exclusion amount of $15,000. However, the father could file a gift tax return using part of the unified lifetime exclusion which is presently $11,180,000 per individual donor (and that amount is scheduled to increase to $11,400,000 as of 1/1/19). This would reduce the amount that the donor could give at death. Those with taxable estates may look at the valuation of the asset given prior to making a gift.
Since most Americans have an estate less than $11,180,000 (double that amount is married), the excess gift would have no problem from either a gift or estate tax perspective. The gift is neither tax deductible and the recipient of the gift is not subject to income tax for receiving the gift.
Furthermore, a person can give away more than $15,000 to any donee (the recipient) if it is made directly to an educational institution (i.e., pay your grandchild’s tuition) or if it is made to a medical provider (i.e., pay your child’s hospital and doctor bills) in addition to the $15,000 gift per year to such donor.
This is a different than giving to a charity where there is no limit and where sometimes the donor gets a charitable tax deduction. It should be noted that beginning in year 2018 less Americans will be entitled to the charitable tax deduction since the standard deduction was doubled by the new tax law that became effective in 2018. As a result, for those who are charitable and over 70½ who have retirement accounts but do not need the income from the retirement account (which a minimum amount is required to be distributed annually, once they reach 70½) and the charitable deductible is less than the standard deduction, it is suggested the distribution (which normally would be subject to income taxation) be made directly to the charity as that would not result in income tax under current law (but there would be no charitable deduction). So, for example, if a 72-year-old with a retirement account normally tithed but his or her deductions were not greater than the standard income tax deduction, then he or she should consider the distribution be made directly to the charity so there would be no income tax on the distribution.
Another tax consideration before making a gift is to be careful what you give. The recipient of a gift takes the “basis” of the donor. So, if you gave to your child highly appreciated stock or real estate during your life, your child would be responsible for capital gains tax on the increase in value of such stock or real estate from the value as of the date you acquired the same. It should be mentioned that if said stock or real estate was held by you until your passing, there would be a “step-up” (increase) in the basis as to the value as of the date of death resulting in no capital gains tax on the increase in value from the date of your acquisition of the asset to the date of your passing. Therefore, one should consider what they give (in the case of appreciated assets) or how they give (in the case of the IRA to a charity) before giving.
In addition to tax considerations, public benefits rules should also be taken into account before making a gift as there is a presumption that uncompensated transfers were purposefully done to reduce assets so that the government would help pay for care costs since programs such as Medicaid and certain Veterans programs are “means-tested”. So even though you make a $15,000 gift which may have no gift tax implication or reporting requirement, it could be a disqualifying event if you should apply for public benefits within the applicable “look-back” period. There are numerous Medicaid programs each with their own rules, but a common example would be long-term care Medicaid which has a five-year look-back period. So, if you made an uncompensated transfer (a transfer for less than fair market value) to a child (assuming the child is not disabled which is one of the exceptions under the Medicaid rules or the gift is not to an UTMA or to an ABLE account discussed in another article in this newsletter), it could be penalized requiring you to private pay instead of the government assisting in payments for long-term care. Similarly, as of October 18, 2018, the Veterans Administration will also penalize claimants who seek benefits if the transfer reduces assets below the maximum allowable limit (see our article this month) if made within a three year look-back period.
Thus, before making a gift, there are numerous considerations (ranging from various tax issues to public benefits issues) that the donor should be aware prior to making a gift.
If interested in this or other estate planning public benefits issues, then you should consider our next free “Estate Planning Essentials” workshop to be held on Saturday, October 6, 2018 from 10:00 a.m. to noon or on Thursday, October 25, 2018 from 1:00 to 3:00 p.m. or by calling (214) 720-0102 or sign up online at www.dallaselderlawyer.com.
The post DON’T LOOK A GIFT HORSE IN THE MOUTH? GIFTING PROS AND CONS – CONSIDER BOTH TAX AND PUBLIC BENEFITS ISSUES appeared first on Dallas Elder Lawyer.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Staff Report.
With offers on sporting events, theme parks, and stylish outfits, your Member Benefit Program has everything you need to have fun and look great this October. Visit the Entertainment, Retail, and Wireless Phone pages to start saving.
Premium Seats: NFL Football Tickets — Premium Seats USA carries a huge selection of NFL tickets. Save $50 on orders of $400 or more, or save 10% on your entire order. Ticket Monster — Thanks to the Ticket Monster Employee Discount Program, you can save up to 50% on tickets to sports events, concerts, theme parks, and movies. Preferred Access Tickets: Concerts — Get tickets to the most in-demand concerts, sports games, and major events around the world with the new TicketsatWork Preferred Access. It’s all here: great seats, the best prices, and the top shows. Theme Parks & Attractions — Save up to 40% on admission to the nation’s most popular theme parks, special events, and attractions. Savings are available for Walt Disney World Resort, Universal Orlando, Cirque du Soleil, movie tickets, and more. Rockport — Rockport believes that your workday should be spent in comfort and style. To help you turn heads at work without compromising comfort, Rockport offers 25% off your entire purchase all year round. OtterBox — Shop otterbox.com, and receive 15% off the OtterBox case of your choice. We dedicate our cases to all the klutzy, spontaneous, chaotic, graceless individuals who have broken a device or valuable due to their active lifestyle. Skechers Direct — Skechers Direct is proud to offer you all the benefits of our corporate shoe program. Save 30% year round on select work, corporate casual, dress, and performance shoes from Skechers.Current offers provided by Beneplace.
For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit texasbar.com/benefits.
Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.
State Bar of Texas – Benefits & Services
LifestyleCurated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by P. Clarkson Collins Jr..
Investors Sue Goldstone Financial Group Over 1 Global Capital Sales
Investors have filed a proposed class action securities fraud case against Goldstone Financial Group LLC, their principals Anthony Pellegrino and Michael Pellegrino, and their defunct Pell Corp. Brothers Inc. The plaintiffs contend that the financial services firm sold illegal securities in payday lender 1 Global Capital, which is now accused of running a $287M investor fraud.
Since 2014, 1 Global allegedly has fraudulently raised $287M throughout the US. Investors were allegedly promised that they stood to make money from these supposedly low risk investments.
In August, the US Securities and Exchange Commission filed fraud charges against the company while accusing its CEO Carl Ruderman of diverting at least $28M in investor funds to pay for his lavish lifestyle and unrelated business costs. Thousands of investors have purportedly been defrauded.
Meantime, 1 Global paid some $9M in broker fraud commissions, including to barred brokers and unregistered investment advisers and others that sold the securities, which were unregistered. 1 Global filed for bankruptcy protection this summer.
The plaintiffs of this proposed class action want all of their money back with interest and other damages.
DOJ Arrests Foreign National Over Alleged $164M International Market Rigging Fraud
The US Justice Department have arrested and charged Roger Knox, a UK resident, with securities fraud and conspiracy to commit securities fraud. Knox is one of a number of people accused of running a fake Swiss asset management firm called Wintercap SA and previously known as Silverton SA. The firm purportedly ran multiple international market rigging scams, generating almost $165M since June 2015.
Meantime, the US Securities and Exchange Commission has filed a parallel civil case against Knox, Wintercap, and Michael T. Gastauer. The regulator, which filed an emergency order this week, has been able to obtain an asset freeze.
The SEC contends that Knox and Wintercap assisted microcap securities holders to get around federal securities laws that limit sales by big shareholders and gave them “anonymous access’ to brokerage accounts so they could sell the shares in the US. Gastauer, meantime, is accused of aiding and abetting the microcap fraud.
Cornerstone Capital Founder Gets Six Years for $3M Investor Fraud
Melvin Leonard Wimmer, a South Carolina-based investment adviser and the founder of Cornerstone Capital, is sentenced to six years in prison. Wimmer, who pleaded guilty to securities fraud, lost about $3m in investors’ money. Many of the investors were older investors who lost their retirement money as a result of the scam.
In addition to his prison sentence, Wimmer must pay $3M in restitution for the investment adviser fraud.
Our investment fraud law firm works with all kinds of investors in helping them to recoup their money. Please contact Shepherd Smith Edwards and Kantas, LLP to request your free, no obligation, case consultation.
Investors Hit Broker With Class Action Over 1 Global Sales, Law360, October 2, 2018
The SEC Complaint in the 1 Global Case (PDF)
The SEC Complaint in the Roger Knox Case (PDF)
Founder of Swiss Brokerage Firm Charged in Global Securities Fraud Scheme, Justice.gov, October 3, 2018
Greenwood Investment Advisor Sentenced to Prison, Justice.gov, October 3, 2018
The post Investor Fraud: Goldstone Financial Sued For Selling 1 Global Capitals Securities, Criminal Charges Filed in Alleged $164M International Microcap Scam, and Cornerstone Investment Adviser is Sentenced to Six Years appeared first on Securities Fraud Attorney.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Angela Morris.
The Texas Supreme Court took the next step in expanding re:SearchTX, which grants access to state court records electronically filed anywhere in Texas.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Lowell Brown.
The State Bar of Texas is accepting expressions of interest to serve on committees for the upcoming bar year. State Bar committees are established by the Board of Directors and appointed by the president-elect
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Cordell Parvin.
Not all lawyers admit it, but every lawyer is afraid at some point in his or her career.
For some, the fear is crippling. For others the fear is overcome. For me, my fear motivated me.
Now that I am recruiting lawyers, I prefer to recruit those who are afraid far more than those who are complacent. As a coach and recruiter I can help a lawyer effectively deal with his or her fear, but I can’t help a lawyer deal with his or her complacency.
I love this quote attributed to Intel’s Andy Grove:
Success breeds complacency. Complacency breeds failure. Only the paranoid survive.
Andy Grove later wrote a book titled: Only the Paranoid Survive: How to Exploit the Crisis Points That Challenge Every Company
I wasn’t aware of Andy Grove’s quote during my career, but I frequently said I had “healthy paranoia.”
What was my biggest fear? I always put it in harsh terms. I was always afraid my clients would find out I was a “fraud.” I was afraid they would figure out I didn’t know nearly as much as I appeared to know.
How did this fear motivate me?
Put simply, I always felt I had to work harder to be the lawyer my clients perceived I was. I was a member of the Civil Engineer’s Book Club and created a library and read book after book on highway design and construction, bridge design and construction and construction management.
I read books and listened to tapes on trial skills and trial lawyers. One of my favorites was the Irving Younger CLE Series. Click on it and you will see it is still available.
What are your fears? Are your fears holding you back, or are you using fear to motivate you to become the best lawyer you can be?
The post I Used My Biggest Fear to Motivate Me appeared first on Cordell Parvin Blog.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Texas Personal Injury News.
While state laws– as well as the particular circumstances of an automobile accident– differ, people who are seriously hurt (or the survivors of those who are killed) by a drunk driver who was also killed in the accident still may have legal recourse.
First, if someone is killed as a result of the negligent, reckless, or intentional actions or inactions of another person or entity, the closest surviving relatives of the victim can commence a wrongful death lawsuit to recover monetary damages.
Compensatory damages differ on a case-by-case basis but generally include the victim’s final medical and burial expenses as well as the survivor’s loss of financial support and loss of consortium due to the victim’s death. If the person liable for the accident was also killed in the accident, a claim may be made against the estate of the responsible party, if any.
In addition, in the event of a drunk driving accident, if a bar or tavern served the drunk driver alcohol prior to the accident, it may also be sued, again depending on state law and the particular circumstances.
Texas Dram Shop laws allow victims to sue bar and tavern establishments if they served alcohol to someone who is drunk or under age and that person thereafter causes death or injury to others in a drunk driving or alcohol-related accident.
Last year, a man leaving his wife’s grave was reportedly struck and killed by an alleged drunk driver whose toxicology tests allegedly showed a blood alcohol level over “three times the legal limit” as well as “traces of several drugs including two painkillers and at least one antidepressant”. The woman, who was reportedly traveling at 82 miles per hour in a 45-mph zone was also killed in the accident. She had reportedly consumed alcohol during lunch with her sister in an establishment.
The victim’s family has filed suit against both the woman’s estate and the establishment that allegedly served her the alcohol.
If you or a loved one has been injured, or loved one has been killed, due to someone else’s actions, the personal injury attorneys at Chandler, Mathis and Zivley can help maximize the compensation to which you may be entitled. Contact us today for a free consultation.
From our offices in Lufkin and Houston, we represent accident victims and their families throughout Texas as well as those injured while visiting the Lone Star State.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Haynes and Boone Benefits Group.
A recent case decided by a federal district court in California highlights that employer action other than a direct payment of premiums may constitute an “employer contribution” for purposes of determining whether a group insurance program is exempt from ERISA. Under the so-called “Voluntary Plan Exemption”, generally such a program will be exempt from ERISA if (i) there are no employer contributions toward coverage, (ii) participation in the program is completely voluntary, (iii) the employer does not endorse the program, and (iv) the employer receives no consideration for the program. In Bommarito v. Northwestern Mutual Life Ins. Co., the plaintiff, who was the sole owner of her company, and nine of her employees applied for individual policies of disability insurance to be issued by Northwestern Mutual Life Insurance Company (“Northwestern”). In the submission of her application to Northwestern, the plaintiff included the nine employee applications and a request for a “multi-life” plan, which would provide for a multi-life discount on the cost of each policy (collectively, the “Policies”).
When Northwestern later cancelled the plaintiff’s Policy, she brought state-law claims against Northwestern. Northwestern contended that her claims were preempted by ERISA because the Policies constituted an “employee welfare benefit plan” under ERISA. The court agreed that the Policies constituted an ERISA plan. The plaintiff then asserted that the Policies were exempt from ERISA based on the Voluntary Plan Exemption. With respect to first prong of the exemption, the plaintiff argued that she never paid any premiums for her employees’ Policies, thus she never “contributed” to them. In evaluating the application of the Voluntary Plan Exemption, the court stated that when an employee receives a benefit that she would not have received absent the action taken by her employer, the employer’s action should be considered a “contribution”. The court then held that, because the plaintiff facilitated a discount on the cost of her employees’ Policies, she contributed to the Policies, regardless of who actually paid the premiums directly; therefore, the Voluntary Plan Exemption did not apply.
Please note that Bommarito is controlling only in the jurisdiction of the federal district court of California that issued the opinion. However, an employer that wants to rely on the Voluntary Plan Exemption should take note that certain beneficial actions by an employer which impact the cost of employees’ coverage, such as the negotiation of a group premium discount, may constitute an employer contribution that negates the Voluntary Plan Exemption.
Bommarito v. Northwestern Mutual Life Ins., No. 2:15-cv-1187 (E.D. Cal. July 23, 2018).
The post Negotiation of a Premium Discount May Constitute an Employer Contribution appeared first on Haynes and Boone Blogs.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Bryce Hopson.
Cryptocurrency began in 2009, gained popularity since, and acts now as an important role in the financial lives of many couples. Bitcoin is a type of cryptocurrency, the first decentralized “digital currency” for direct transactions between users with no intermediary; essentially a line of computer code that holds monetary value. Think of it like this: cryptocurrency has no physical form (like a dollar bill or a nickel), nor is it controlled by any government agency, but is instead maintained virtually.
Even though cryptocurrency is different than standard currency, Bitcoin can be distributed during property division in a divorce as if it were any other asset. Texas is a community property state; when a divorce occurs, the marital assets are divided equitably. This process becomes more complicated when stocks, bonds, and virtual currencies are involved, as each will fluctuate in price. The general approach is for the judge to determine the date these types of assets will be “valued,”—which could be the date of divorce, the date a mediation agreement is signed, or even the date the Bitcoin was first distributed—and from there, the division is made accordingly.
How are Cryptocurrency typically divided?
Often parties will come to a decision about Bitcoin holdings division as part of a settlement or during a mediation. There are several ways to handle this process: one party receives the entirety of this type of asset and the other obtains an asset of the same value; virtual currency can be divided or sold, then re-divided evenly; or one party maintains possession of the Bitcoins as an investment but agrees to split the proceeds of any future sales. This can all be handled fairly easily.
What is the Concern with Cryptocurrency in Divorce?
Though it certainly doesn’t have to, digitization of funds can make the equitable division of assets in a divorce more complicated. While Bitcoin can be stored on an owner’s computer and kept reasonably safe, this can also make it easier for a spouse to transfer or hide funds from the other. A spouse might be keenly aware of their imminent divorce long before their partner; when this is the case, he or she will often begin planning for divorce, which unfortunately, could include manipulating funds. In Texas, particularly with monied spouses, oil leases can be an issue; spouses might conceal a leasing deal in a trust, for example. Not surprisingly, parties have found any number of ways to hide what they consider “their” money—from trusts, joint partnerships, offshore accounts and gold coins to enlisting the aid of family members for fund storage. Divorcing spouses, therefore, are wise to be aware of any conversions of “real” marital assets: for example, a bank account turned into a digital Bitcoin. This type of activity will create a paper trail, but a party may need to take specific action to uncover any missing assets.
The truth is, anonymity comes with cryptocurrency, and its somewhat new popularity means enforcing disclosure can be difficult. However, if a party proves contrary, courts can revise property divisions when hidden assets are found and will not hesitate to do so. If you believe your spouse may be masking assets, make your family law attorney aware immediately; often, retaining a forensic CPA will be recommended to uncover any unlawful behavior. A forensic CPA scrutinizes personal or corporate financial books to reveal whether it appears funds are indeed being hidden. Assets offshore in particular requires an expert CPA and likely court orders. While frustrating and time consuming, if you have true suspicion that your soon to be ex is hiding assets, do not ignore the gut instinct or allow yourself to be intimidated. It is vital to take measures to reveal funds that rightfully belong to you. Additionally, a spouse covering assets who is caught will answer to a judge, who can order that the innocent party receive a greater share of community property, sometimes splitting assets to as much as 70/30 instead of the traditional Texas 50/50. And depending on what method was used to hide funds, the guilty party could face charges from the IRS.
Bottom line: while not fun to contemplate, spouses in a divorce situation must be cognizant of all financial possibilities and require and provide complete transparency to remain informed about communal property. property
Bryce Hopson is an associate attorney at Hance Law Group. Bryce excels in breaking down complicated legal issues and examining them with his clients in a clear, comprehensible, and concise manner, in matters such as property division, child custody, and pre-marital agreements.
The post Bitcoin Battles: Is Your Spouse Hiding Assets Via Cryptocurrency? appeared first on Hance Law Group | Trusted Dallas Family Law Attorneys.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Joe K. Longley
Editor’s note: State Bar of Texas President Joe K. Longley sent the following message to members on Friday.
Dear Member,
The State Bar of Texas Board of Directors and its Executive Committee held meetings today in Austin. I’m writing to update you on some of the major developments from the meetings.
Committee Review Subcommittee Formed
Much of the State Bar’s work is done by volunteers on 30 standing committees, and there is a safeguard in place to make sure those committees remain effective. At least every other year, the Executive Committee is required by statute to review the existing standing and special committees of the State Bar. The last review was done in April 2017.
This year, I will chair the seven-member Committee Review Subcommittee of the Executive Committee. Over the next three months, the subcommittee will assess whether there is a continued need for each committee, whether the committees are fulfilling their purposes, and whether any of their activities overlap.
This oversight process has led to a streamlining of the committee process and structure over the years. For example, as a result of the last review, one committee was eliminated as duplicative and five others updated their purpose clauses to more closely align with the purposes of the State Bar. During prior committee reviews, term limits were implemented to rotate committee membership and give more members an opportunity to serve.
President-elect Nominees Approved
The Board approved the nomination of Jeanne “Cezy” Collins of El Paso and Larry P. McDougal Sr. of Richmond as candidates for 2019-2020 State Bar president-elect, accepting the recommendation of the Nominations and Elections Subcommittee. The candidates will appear on the ballot in April 2019 along with any certified petition candidates. Click on the names below to read the candidates’ interest letters to the Nominations and Elections Subcommittee.
Potential petition candidates have until March 1 to submit their nominating petitions to the State Bar for certification. For information on how to run for president-elect, go here.
Courthouse Access Badge Task Force Created
The Board approved President-elect Randy Sorrels’ request for a Courthouse Access Badge Task Force. The task force will study the development and implementation of a statewide courthouse security access badge that would give lawyers expedited access to Texas courthouses. State Bar Director Christy Amuny of Beaumont and Granbury attorney Cindy V. Tisdale are co-chairs of the 17-member task force. View the full roster here.
2019-2020 Budget Update
The board’s Budget Committee met Thursday to discuss the budget process and the timeline for preparing the 2019-2020 budget. The committee is scheduled to meet next on December 13 to finalize a proposed budget for presentation to the Executive Committee and to the board at their respective January meetings.
Chief Disciplinary Counsel Retiring
Linda Acevedo is retiring in January 2019 after nearly 10 years as chief disciplinary counsel and 33 years with the State Bar, and we thanked her for her many years of service. She previously served in the Office of the Chief Disciplinary Counsel as first assistant, appellate counsel, trial counsel, corporate counsel, counsel to the local grievance committee, and liaison to the Supreme Court of Texas Professional Ethics Committee and Unauthorized Practice of Law Committee. The job opening was posted today on the State Bar website. If you are interested in applying, go here.
Board Resolution Presented
Austin attorney Shannon H. Ratliff, a shareholder in Davis, Gerald and Cremer, has been honored for his lifetime of dedicated service to the legal profession and to this country.
Mr. Ratliff has been a trial and appellate lawyer for more than 50 years and is a leading authority on oil and gas legal matters. He clerked for U.S. Supreme Court Justice Tom C. Clark and served as an assistant to Lyndon Baines Johnson in his roles as U.S. Senate majority leader, vice president, and president. Dr. Kyle Longley, director of the LBJ Presidential Library, attended the board meeting to help us honor this longtime LBJ advisor.
If you have any questions about the board meeting, please let me know. For more information on the board or to read meeting agendas and materials, go to texasbar.com/board.
With kindest regards,
Joe K. Longley
President, State Bar of Texas 2018-2019
This email address is being protected from spambots. You need JavaScript enabled to view it.
In F.F.P. Operating Partners v. Duenez, 237 S.W.3d 680, 686 (Tex. 2007), the Texas Supreme Court stated that negligent entrustment is a form of vicarious liability. The basis for imposing liability on the owner of the object entrusted to another is that ownership of the object gives the right of control over its use (Id.). But perhaps the court applied this concept too broadly. Perhaps ownership of the object and control of the person using the object are two different concepts. Most Texas cases do not address this distinction because they have construed negligent entrustment in the context of the employer-employee relationship where vicarious liability is otherwise present through respondeat superior [See TXI Transp. Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010); Schneider v. Esperanza Transmission Co., 744 S.W.2d 595 (Tex. 1987); but see, Dao v. Garcia, 486 S.W.3d 618, 629 (Tex. App.—Dallas 2016, pet. denied)(friend liable for driver’s negligent driving where the driver had taken the friend’s keys without her knowledge); Williams v. Steves Industries, 699 S.W.2d 570, 571 (Tex. 1985); Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007); and McGuire v. Wright,140 F.3d 1038, 1998 WL 156342 at *2 (5th Cir. 1998) (unpublished)].
To establish negligent entrustment, a plaintiff has the burden to prove (1) entrustment of a vehicle by an owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver’s negligence proximately caused the accident (Schneider, 744 S.W.2d at 596).
The doctrine of vicarious liability, or respondeat superior, makes the principal liable for the agent’s actions because the principal has the right to control the agent’s actions undertaken to further the principal’s objectives [Wingfoot Enterprises v. Alvarado,111 S.W.3d 134, 136 (Tex. 2003)]. A negligent entrustment cause of action, as a form of vicarious liability, functions seamlessly in an employer/employee context where the employer has the right of control over the employee and the employee, in operating a vehicle, is furthering the interests of the employer.
In cases where respondeat superior is not present, the policy reasons for imputing the negligence of the driver to the entrustor are not as convincing. For example, in a social context where a vehicle owner allows a buddy to drive his or her car, no respondeat superior is present. In the case of rental car companies, no respondeat superior is present (Rental car companies are protected from claims of negligent entrustment under 49 U.S.C. §30106, The Graves Amendment). Similarly, respondeat superior is not present when a parent permits a teenager to drive the family car, a customer permits a valet to drive his or her car, a car repair company loans a car to a customer, or a person borrows a vehicle from a coworker in order to drive to and from work. In such non-employment scenarios, the driver operates the borrowed vehicle for his or her own benefit, and not for an employer who has control over his or her livelihood and the driving choices that he or she makes. The entrustor is liable for his or her percentage of fault in entrusting the vehicle (In a non-employment scenario, an entrustor has no duty to investigate the driving record of a prospective driver as long as the driver maintains a valid driver’s license. [Avalos v. Brown Auto. Ctr., 63 S.W.3d 42, 48-49 (Tex. App.—San Antonio 2001, no pet.)], but should the entrustor be responsible for the percentage of fault attributed to the negligent driver? The justification supporting the imposition of vicarious liability on the entrustor is not present when the driver has no obvious connection to furthering the commercial interests of the entrustor. In one illustrative example, the court in Daofound that the driver had implied consent to drive his friend’s car, even though he took the car without her knowledge while she was sleeping. The court applied vicarious liability, and imposed joint and several liability on the driver and his friend, now the entrustor, for a fatality resulting from an accident caused by the driver.
The imposition of vicarious liability on the entrustor requires that the entrustor defend the actions of the driver, no matter the negligent driving operations. Furthermore, since under vicarious liability, the negligent driver is not required to be joined as a party and may not be available as a witness, legitimate defenses may be lost. It is not clear whether the entrustor has a post-verdict indemnification claim against the driver as an employer has against an employee [See Aviation Office of America v. Alexander & Alexander of Texas, 751 S.W.2d 179, 180 (Tex. 1980) (common law indemnity permitted under pure vicarious liability, but not between joint tortfeasors)]. The entrustor without control over the driver and whose interests are not being carried out, should be liable solely for his or her own negligence and not for the acts and omissions of the negligent driver. In F.F.P. Operating Partners, the Texas Supreme Court construed the Dram Shop Act, Tex. Alco. Bev. Code § 2.02(b), a statute creating the dram shop’s legal duties, in conjunction with the Proportionate Responsibility Act, Tex. Civ. Prac. & Rem. Code § 33.003 to hold that dram shops are responsible only for the proportion of damages they cause or contribute to cause (F.F.P. Operating Partners,at 692-93). The court specifically noted that the dram shop is responsible for the acts of its employees, but not responsible for the acts of the driver and thus did not have an indemnity claim against the driver. An employer has a common law right of indemnity against an employee (See Aviation Office of America v. Alexander & Alexander of Texas eat 180). Pursuant to Chapter 33 of the Proportionate Responsibility Act requiring the submission of responsibility of “each claimant, defendant, settling person, and responsible third party” to the jury, the dram shop properly had a contribution claim against the driver. Absent a right of control over the driver, absent a right of indemnity against the driver, and armed with a contribution claim against the driver, the liability of the non-employer entrustor should be determined like the liability of the dram shop in F.F.P. Operating Partners, i.e., without vicarious liability.
Katherine Knight is a shareholder in Henry, Oddo, Austin & Fletcher in Dallas, www.hoaf.com.
The State Bar of Texas Board of Directors voted unanimously September 28 to approve Jeanne Cezanne “Cezy” Collins of El Paso and Larry P. McDougal Sr. of Richmond as candidates for 2019-2020 president-elect.
Collins and McDougal will appear on the ballot in April 2019 along with any certified petition candidates. There are currently no additional president-elect candidates, although members have until March 1 to run as a petition candidate by submitting a petition signed by at least 5 percent of the State Bar membership.
Collins is general counsel for El Paso Independent School District and previously worked as a legal aid lawyer, an assistant county attorney, and a law firm partner.
She served on the State Bar Board of Directors from 2008 to 2011 and as chair of the Texas Bar Foundation Board of Trustees in 2015-2016, chair of the Supreme Court Task Force to Expand Legal Services Delivery from 2009 to 2011, and president of the National Conference of Women’s Bar Associations in 2011-2012. Collins is a Founding Life Fellow of the El Paso Bar Foundation for which she served as president from 2008 to 2011, and was a commissioner for the Texas Access to Justice Commission. She is currently a member of the Board of Disciplinary Appeals.
Collins was honored with the 2017 President’s Award from the George A. McAlmon Inn of Court, El Paso and the 2013 Shattering Barriers Award from the Mexican American Bar Association of El Paso, among other accolades.
She earned her J.D. from University of Arizona College of Law-Tucson in 1991.
McDougal is board certified in criminal law and the founder of a namesake law office where he practices with his son. McDougal has previously served as a police officer, firefighter, and an assistant district attorney.
He served on the State Bar Board of Directors from 2012 to 2015 and continues to serve on the State Bar Continuing Legal Education Committee. He is the District 5 Grievance Committee chair for the State Bar and District 5 nominating chair for the Texas Bar Foundation. McDougal also serves on the Texas Criminal Defense Lawyers Ethics Committee, Ethics Hotline, and Strike Force. He teaches legal ethics to lawyers around the state and is a member of several professional associations.
McDougal won the President’s Award from the Texas Criminal Defense Lawyers Association in 2009, TexasBarCLE Standing Ovation Award in 2014, and the Outstanding Third-Year Director Award from the State Bar of Texas in 2015, among other accolades.
He earned his J.D. from South Texas College of Law Houston in 1990.
Collins and McDougal were recommended to the board by the Nominations and Elections Subcommittee, which interviewed six potential nominees from non-metropolitan counties.
Austin Attorney Shannon H. Ratliff (center), receives a resolution honoring him from from Kyle Longley, director of the LBJ Presidential Library (left), and State Bar of Texas President Joe K. Longley (right).
The State Bar of Texas Board of Directors on Friday presented attorney Shannon H. Ratliff with a resolution honoring him for his service to the bar and the people of Texas and the United States and his overall commitment to the legal profession.
Ratliff is a shareholder in Davis, Gerald and Cremer in Austin. He has been a trial and appellate lawyer for more than 50 years.
Early in his career, Ratliff clerked for U.S. Supreme Court Justice Tom C. Clark and served as an assistant to Lyndon Baines Johnson in Johnson’s roles as U.S. Senate majority leader, vice president, and president.
Ratliff, a leading authority on oil and gas legal matters, has served as the lead trial lawyer in numerous complex lawsuits for Fortune 50, 100, and 500 companies in a variety of statewide and nationwide litigation.
He was appointed and served as a member of the University of Texas System Board of Regents from 1985 to 1991. He is a Life Fellow of the Texas Bar Foundation and the Austin Bar Foundation and is a Fellow of the American College of Trial Lawyers and American Board of Trial Advocates.
A new Texas Young Lawyers Association project plans to put more books in children’s hands. Bookshelves in Courtrooms is promoting literacy by stocking shelves in courthouses across Texas with books for children of all ages. The program, TYLA Board Director Kaylan Dunn hopes, will help kids who may be going through a tough time.
“The project’s goal is to facilitate the availability of books in areas frequented by children in courthouses across the state of Texas to promote literacy, provide meaningful activity during a potential time of stress, and allow continued access to books even after a child’s visit has concluded,” Dunn said.
Bookshelves in Courtrooms was inspired by a similar project started in 2016 by Judge Karin Crump, of the 250th District Court in Austin. TYLA President Sally Pretorius, who herself had an unpleasant childhood experience at the Bexar County Courthouse, saw that program and wanted to adopt it to spread the initiative across Texas.
The books are donated to TYLA and range from board books for toddlers to young adult novels. Those gathered have come from TYLA members and their friends and family, social media groups, law firms, and church book drives, among others. Some bookshelves have been installed and others are being installed in courthouses in Fort Bend, Dallas, and Collin counties, with plans in store for expansion of the program in Smith, Tom Green, Menard, Anderson, Austin, Bexar, Howard, El Paso, and Harris counties.
“Children tend to be present in family, CPS, and juvenile courts most frequently, but TLYA is happy to install a bookshelf in any courtroom or courthouse that is interested in the program, as well as provide an initial supply of books,” Dunn said.
The next step is joining with local literacy organizations such as Lawyers for Literacy, Dunn said, to ensure books are always ready to stock shelves as needed. TYLA and its local affiliates are also in the process of reaching out to judges who may be interested in the supporting Bookshelves in Courtrooms.
“If you see a bookshelf in your local courthouse, please feel free to add books or donate them to the court to add when needed,” she said.
New or gently used books can be mailed to the TYLA office, 1414 Colorado St., 4th Fl., Austin 78701. TYLA also has an Amazon Wish List from which books can be purchased.
For more information on the program or introducing/expanding it in your area, contact Kaylan Dunn at This email address is being protected from spambots. You need JavaScript enabled to view it..
