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ADVISORY: Secretary Pablos Issues Warning to Texans Regarding Potentially Fraudulent Voter Registration Materials

Over the past several weeks, the Texas Secretary of State's office has received numerous calls from Texans who have indicated they have received pre-filled voter registration applications containing information which, as applied to them, is false and potentially fraudulent.
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Secretary Pablos Working To Ensure Voters Affected By Severe Weather Have Unimpeded Access To The Ballot Box

With the Early Voting period beginning on Monday, October 22nd, Texas Secretary of State Rolando Pablos today announced he is working closely with Governor Abbott's office, county elections administrators, party officials, and elected officials in each of the Central Texas counties impacted by recent severe weather to ensure all registered Texas voters in the affected areas will have unimpeded access to the ballot box.
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Secretary Pablos Refers Complaint Regarding Pre-Filled Applications To Texas Attorney General

Texas Secretary of State Rolando Pablos today confirmed that the agency has received a complaint regarding pre-filled voter registration applications sent to Texas residents who are ineligible to vote, and that the Texas Secretary of State's office has referred that complaint to the Texas Attorney General for investigation.
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ADVISORY: Secretary Pablos Provides Additional Guidance To Voters, Election Officials Regarding Hart eSlate Electronic Voting Systems In 78 Texas Counties

"Each eligible Texas voter heading to the polls during this final week of Early Voting and on Election Day can rest assured that their vote will be cast and counted exactly as they intended"
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VIDEO: Ahead Of Election Day, Secretary Pablos Issues Message Encouraging Texans To Get Out The Vote

As the Early Voting period comes to a close, Texas Secretary of State Rolando Pablos today is issuing a statewide video message to Texas voters encouraging all those who have not already cast a ballot to prepare to make their voices heard on Election Day, November 6, 2018.
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Texas Secretary Of State Rolando Pablos Announces Departure

After two years of service to the people of Texas, Secretary of State Rolando Pablos today notified Governor Greg Abbott of his departure from office, effective December 15th.
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Secretary Pablos Convenes Final Border Trade Advisory Committee Meeting Of 2018

Texas Secretary of State Rolando Pablos today convened the final Border Trade Advisory Committee (BTAC) meeting of 2018, his last as chair of the Committee.
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A Year-End Message from State Bar President Joe K. Longley

Joe K. Longley

Editor’s Note: State Bar of Texas President Joe K. Longley sent the following message to members Wednesday. 

As we celebrate the holiday season and prepare for 2019, I offer this update on some recent happenings at the State Bar of Texas.

2019-2020 Budget Update
The State Bar Board’s Budget Committee met December 13 to hear presentations from department and division heads on their proposed budgets for the 2019-2020 fiscal year. After a full day of reports and deliberation, the committee voted to advance the proposed budget to the full Board of Directors. I am pleased to report that for the second straight year, the proposed budget adopted by the Budget Committee will hold total general fund expenditures to under $44 million without a reduction in State Bar programs or services. The proposed budget includes a contribution to reserves of approximately $1.2 million, increasing the amount in reserves to a level equal to three months’ operating expenditures. This is in line with auditor recommendations to have between two and four months of operating reserves available. 

Committee Review Update
The board’s Committee Review Subcommittee met December 14 to continue its review of State Bar standing committees to determine whether there is a continued need for each committee and whether there is any unnecessary overlap of activities. The subcommittee will make its report to the State Bar in January on recommended changes to the committee structure.

Upcoming Meetings 
State Bar Board meetings are open to the public. The next quarterly board meeting will take place at 9 a.m. Friday, January 18 at the Texas Law Center, 1414 Colorado St., in Austin. The public is also welcome to attend the board’s Executive Committee meetings, which typically occur prior to the quarterly board meeting. The next Executive Committee meeting is scheduled for 10:30 a.m. Thursday, January 10 at the Texas Law Center. Agendas and related materials are posted at texasbar.com/board at least seven days before each meeting.

New San Antonio Director
At the January meeting, I will ask the board to approve my nomination of San Antonio attorney Marc E. Gravely as State Bar director for District 10 (Bexar County), Place 1. Gravely is nominated to replace San Antonio director Tom Keyser, who is resigning from the board next month. Gravely is a partner in Gravely & Pearson, LLP whose practice includes complex commercial and business litigation. Among his many qualifications, he has served as special counsel to the State Commission on Judicial Conduct and for the Center for Infrastructure Assurance and Security at the University of Texas at San Antonio.

TLAP Staff Changes
I want to introduce you to the new team at the Texas Lawyers’ Assistance Program, or TLAP. Staff attorney Chris Ritter has been promoted to TLAP director following the retirement of Bree Buchanan in October. Austin attorney Erica Grigg has been hired as a new TLAP staff attorney, joining clinical professional Shawna Storey-Lovin and administrative assistant Penni Wood as members of the caring and professional TLAP staff. Also, since August, TLAP has been partnering with College Station Municipal Judge Edward J. Spillane III as part of a renewed outreach to the judiciary.

Help is Available
Finally, the holiday season can be difficult for many people. If you are struggling with mental health or substance abuse issues—or know someone who is—you can call TLAP’s confidential hotline at 1-800-343-8527(TLAP), which provides assistance to lawyers, judges, and law students. TLAP also operates the American Bar Association’s National Helpline for Judges Helping Judges at 1-800-219-6474. Find more wellness resources on the TLAP website.

I wish you joy and peace this holiday season. If you have any comments or questions about the work of the State Bar, please feel free to contact me.

 

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.

Original author: Lowell Brown
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David Whitley appointed secretary of state of Texas

Gov. Greg Abbott appointed David Whitley as the 112th secretary of state of Texas on December 17, 2018. Whitley replaces outgoing Secretary of State Rolando Pablos.

“David has been an invaluable member of my administration for over a decade, both in my time as attorney general and during the entirety of my first term as governor,” said Abbott in a press release. “He has a keen understanding of the election process, and has served as a top advisor for international relations with the office of the governor. I am confident that in his new role as secretary of state, David will continue to safeguard the integrity of our elections and maintain Texas’ standing on the international stage.”

Whitley most recently served as deputy chief of staff to Abbott. Previously, he served as appointments director and assistant deputy attorney general. Whitley received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 2012.

Original author: Adam Faderewski
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Sponsored Content: How Does Your Law Firm’s NPS Stack Up?

Would your legal clients recommend your services? This is a hard question to answer, but by tracking your NPS, you can get a much better idea of where you stand.

A Net Promoter Score, or NPS, is a metric commonly used to rate customer satisfaction, with scores ranging from -100 to +100: A high NPS means that on average, clients are pleased with your services and are more likely to recommend you, while a low NPS means that there’s room  for improvement.

It’s important to see how your firm is serving clients, but it’s also important to see how you compare to the legal industry as a whole.

The 2018 Legal Trends Report includes an in-depth analysis on the modern legal consumer—what makes them want to hire a lawyer, what makes them recommend their lawyer’s services, and much more. As part of the creation of the report, Clio also conducted an NPS survey to get an idea of how the legal industry as a whole is doing in terms of client service.

The result? The legal industry currently has an NPS of 25, putting it in line with airlines, wireless carriers, and credit card companies. Meanwhile, companies known for excellent customer service and incredible business growth, such as Amazon, have NPS scores in the 60’s or higher.

There’s lots of room for improvement in the legal industry overall: In fact, most firms aren’t even currently collecting feedback from their clients. 42% of law firms surveyed for the report only collected feedback casually, and 37% said they didn’t collect feedback at all.

Today’s legal consumer expects a high standard of client service, similar to what they’d experience at companies like Amazon or Netflix. This is where taking a client-centered approach to running your law firm can make all the difference: When you put your clients first and focus on delivering the solid service and excellent experience they truly want, they’re more likely to refer you to friends, family, and colleagues, helping you build a thriving law firm.

It all starts with collecting feedback and calculating your NPS. This will give you a clear picture of where you stand, and help identify opportunities to provide better service, allowing you to get better reviews and grow your business.

Learn more about how to calculate your firm’s NPS, best practices, and the benefits of measuring NPS, in the full blog post, NPS For Law Firms.

Original author: Guest Blogger
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How Law Firms are Failing New Attorneys—and Themselves

In order to be an air conditioning or refrigeration contractor in the state of Texas, one must have 48 months (approximately 8,000 hours) of practical experience. See Tex. Occ. Code § 1302.255. A residential wireman must have 4,000 hours of on-the-job training, while journeymen electricians must have 8,000 hours of on-the-job training. See Tex. Occ. Code §§ 1305.155, 1305.157. A professional drain cleaner must have 4,000 hours of work supervised by a master plumber before he or she can be licensed. See Tex. Occ. Code § 1301.002(2)(A).

Attorneys require a grand total of zero practical hours before they may practice law in Texas.

This is not, of course, news to any attorneys who have been admitted to practice in Texas or any other state. In its near-300-year history, the American legal education system has never formalized practical training for new attorneys. There are many reasons why apprenticeships, residencies, or simple observation by more experienced attorneys have not been formal requirements for certification to practice law. Some of these reasons may even be valid. The end result of this laissez-faire system is that employers and clients hire “baby” attorneys who have little to no ability to practice law. While law firms and in-house legal departments realize the limitations of new lawyers, the public typically does not. Ordinary citizens will see a law degree and license on the wall of a newly minted attorney and assume that the attorney is fully capable of handling the legal matter that he or she has been entrusted to handle. This leaves the public to purchase unknowingly inexperienced legal advice, while terrified new lawyers desperately try to avoid committing malpractice.

If you’ve already passed the rough first few years of practice, you might think that this problem doesn’t affect you. It does. Consider the many financial losses a law firm can incur when its new attorneys make mistakes:

Malpractice Liability
As many law firms learn the hard way, an employer is liable for the negligence of new attorneys.

An ethics complaint to the bar, a civil suit for professional negligence, or even a simple demand letter cost an employer unnecessary time and expense. Even if the complaint or lawsuit is not ultimately sustained, it still costs a firm money to fight it. And, of course, any malpractice claims that are paid out by a professional liability insurance carrier can result in increased insurance premiums.

Ames & Gough, an insurance broker, recently released a survey of its 2017 data on legal malpractice claims. In general, the frequency of claims was found to be similar to prior years, but the severity of claims had increased. Five of the nine leading malpractice insurance carriers reported claims of $50 million or more. This included a claim over $100 million and another claim over $150 million. Law.com reports that the cost of defending a malpractice claim is also increasing. This, of course, is a cost that insurers will inevitably pass on to their insured via increased premiums.

Malpractice claims are not only bad for claimants but for all malpractice insurance subscribers as well.

Goodwill
One familiar axiom of business is that a disgruntled customer will spread far more dissatisfied word-of-mouth than a satisfied one. Inexperienced attorneys with no support system are not likely to deliver a satisfactory experience to their clients. Disgruntled clients will tell others about their negative experience at your firm. And, as every attorney learns in law school, the goodwill of a business is a real asset with cognizable value. Dissatisfied clients will also lead to a decrease in repeat customers and referrals, which are a significant source of revenue for many attorneys and firms.

Employee Turnover
Employees who do not receive sufficient training, supervision, or support will not continue to work for your business. The hiring and training of new employees is not cheap. One longitudinal review performed by the Center for American Progress reviewed 11 studies performed over a 15-year period and found that the cost of replacing a highly skilled employee was an average of 213 percent of the cost of one year’s compensation in that position. (Heather Boushey & Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Center For American Progress, Nov. 16, 2012, https://www.americanprogress.org/wp-content/uploads/2012/11/CostofTurnover.pdf.)

Businesses Can Recoup a Return on Investment for the Supervision of New Attorneys
Attorneys live their lives in six-minute increments. With so much pressure to meet billing quotas and monthly revenue goals, it can be easy to choose one hour of billable research over one hour of monitoring a new attorney in court. But effective business strategies must evaluate both the short- and long-term costs that impair profitability. One hour of court observation may save a business thousands of dollars in hiring costs if it prevents the attorney from quitting. It may also enable a new attorney to bill hundreds of hours and bring thousands of dollars in revenue to the firm. Consider these long-term financial effects before writing off supervision as an unrecoverable cost for your business.

What Employers Can Do to Supervise New Attorneys
Even without a formalized training program by state or local bar organizations, employers can put practices into place to reduce liability and the employee turnover rate. Here are some simple practices with a big impact:

A designated “question person.” Like it or not, a new associate is going to have questions. It is important that someone is responsible for answering these questions on a daily basis. Many young associates are forced to spend copious amounts of time looking up incredibly basic information. His or her employers would rather waste the new associate’s time than invest a short amount of a senior attorney’s time to teach the attorney how to do it right. As an aside, that investment would also reduce the chance of malpractice. The Farmington Daily Times reported on a “fairly new” attorney who was sanctioned by the State Bar of New Mexico for not consulting with other attorneys in the field. She later faced a civil lawsuit for malpractice, as well. (Joshua Kellogg, Farmington attorney faces legal malpractice lawsuit, Farmington Daily Times (July 23, 2018), https://www.daily-times.com/story/news/local/farmington/2018/07/23/farmington-attorney-shannon-pettus-accused-legal-malpractice/811226002/.)

For very new attorneys, paralegals may be able to answer basic questions about which forms must be filed with the local court, how to fill out preprinted court forms, etc. Firms will want to be careful about the extent of training paralegals are providing new attorneys. Tasks that only a licensed attorney can perform should only be taught by a licensed attorney. Nonetheless, allowing a paralegal to share his or her vast knowledge can significantly reduce the costs of new associate training.

Reconsider your billing requirement structure. Attorneys are protective of not only their time but also that of their support staff. This is understandable. With stringent requirements for hourly billing and departmental income, it can seem pointless for a senior attorney to spend time with a new attorney. It does not provide an immediate benefit to the senior attorney. This is exactly the problem: if billing structures encourage each attorney to prioritize his or her own needs over those of the firm as a whole, the firm will suffer. There are many ways to encourage a change of priorities. Consider giving more senior attorneys an “allotment” of supervision hours in lieu of billed hours. For example: instead of requiring 150 billable hours per month, the firm would require the attorney to bill 140 hours and record at least 10 hours of training a new attorney. Larger firms may have the resources to hire a full-time, designated training attorney with no billable hour requirements. Different structures can be adapted to the specific needs of a particular firm.

It is also important to consider the firm’s billing structure for the new associates. A new attorney who has to both teach him- or herself the law and meet billable hour requirements is headed for disaster. Associates should be slowly introduced to the practice of law and the billing/profitability requirements of the firm. Consider documenting the new associate’s profitability under his or her supervisor’s department for a time. This will encourage the supervisor to help the new attorney be productive and profitable. Alternatively, it may be helpful to incrementally introduce the new associate to the firm’s billing requirements. There are different ways to accomplish this: the associate may first be tasked with achieving goals for monthly billable hours, and later introduced to goals for profitability or recovery of accounts receivable. Alternatively, the associate may be given initial goals which are below those of more senior attorneys. Over the course of six months or a year, the goals can be incrementally increased to match those of other attorneys.

Make someone accountable for new associate training. Speaking of the firm’s needs as a whole, it is important to designate a person who is accountable for an associate’s overall training. If the firm is exposed to liability, or an associate’s inexperience upsets a client to the point of devaluing business goodwill, the firm will suffer. There must be oversight in the system. In addition to a person who can answer day-to-day questions about managing active cases, it is important that someone be accountable to the firm for protecting its assets.

Be honest about why new associates are struggling. No one likes criticism. It can be wounding to honestly explore the ways in which a firm has lost clients, incurred malpractice liability, or simply let down a new associate. But the only way to prevent these losses in the future is to learn why they happened. Was the new associate simply “not a good fit for the firm” or were there ways in which the firm could have offered more support? Was the client angry because of his or her own unrealistic expectations, or did she genuinely receive substandard legal services from an inexperienced new attorney? Was the malpractice suit entirely the new associate’s fault, or were there points at which the firm could have supervised the work and caught the mistake? There will be few—if any—circumstances in which there is absolutely nothing the firm could have done to mitigate its losses.

Looking to the Future
There is no magic wand to fix the problems of new associate training. But it is important that the legal community start an honest dialogue about the very real problems faced by new attorneys. Each of us has a little corner of the legal world in our own practice of the law. We have the choice to enact small changes in our practices that will better serve the public, the community, the profession, the client, and ourselves. Choose. Enact them. Treat the system better than it treated you as a new attorney. Your practice will be better for it, your clients will be happier, your associates will be more successful, and ultimately, the financial rewards will follow.

Pamela N. Sandberg is an attorney licensed to practice in Arizona and California. She has worked in law firms across the United States and uses this experience as a freelance legal writer and legal business consultant. Visit sandberglegalconsoluting.com to learn more about Sandberg and the services she offers.

Original author: Guest Blogger
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Justice C.L. Ray Jr., 1931-2018

Mrs. C.L. Ray, the former Janet Watson, helps Justice C.L. Ray into his judicial robes during his swearing-in ceremony on November 25, 1980.

Supreme Court of Texas Retired Associate Justice C.L. Ray Jr., 87, died December 9, 2018, in Lansing, Michigan, per a Supreme Court news release. He died under hospice care in the late stages of prostate cancer.

Ray was elected to the Supreme Court in 1980 and retired from the court in 1990. At that time, he returned to law practice in Austin, concentrating on appeals, oil and gas, and personal injury law.

“C.L. Ray served the court with distinction,” Chief Justice Nathan L. Hecht said in a news release. “He was a country lawyer who supported simplified procedure that overcame ‘gotcha’ traps to be fair and to resolve legal disputes on their merits. His memory and contributions to Texas jurisprudence will endure.”

Ray served in the U.S. Air Force during the Korean War and enlisted in the Reserve after the war, retiring as a lieutenant colonel in 1987. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1957.

Ray practiced law in Marshall until being elected Harrison County judge in 1959, serving two years before returning to private practice. He was elected to the Texas House of Representatives in 1966 and served until 1970. Ray was elected to the 6th Court of Appeals in Texarkana in 1970 and served there until he was elected to the Supreme Court.

To read the Supreme Court’s news release, go to txcourts.gov/supreme.

Original author: Adam Faderewski
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Sponsored Content: The Five Things Lawyers Need in an Online Payment Solution

It always pays to do a little research before making a purchase to ensure you find the right product to address your needs—especially if said purchase is going towards your business. Payment solutions are no exception. There’s a wide world of them to choose from, but they’re not all ideal for legal professionals like you. Here, we’ll examine five essential features you should keep an eye out for when shopping around for an online payments processor.

Tailor-made, just for law firms

A lot of online payment solutions bill themselves as a one-size-fits-all product that can suit the needs of any business. However, this is a bit of a misnomer—in reality, most of these products work best for retail stores, restaurants, and hospitality businesses, as these are the most common businesses in the country. You’ll likely find that these payment solutions have features, functions, and price points that would suit these businesses perfectly.

You’re a law firm, though. You’re not selling a product—you’re providing a complex, valuable professional service. A typical paper receipt wouldn’t properly convey the type of work you do for your clients, and doesn’t convey the full value of the professional services you provide.

This is why specialized payment solutions are the best fit for law firms like yours. Instead of trying to build a product that pleases everyone, these companies instead hire industry experts to design their product specifically for the legal industry. For instance, they’ll know how important it is to protect your IOLTA account from third-party debiting, as well as keeping your earned and unearned fees separated with each transaction. Plus, their products often integrate with other legal software that you use everyday, allowing you to keep your work organized in one place.

Allows for both invoiced and in-person payments

In the modern world, online credit card payments have quickly become the most popular way for consumers to pay. To put a number on it—74 percent of households with an internet connection prefer to pay their bills online with their favorite connected devices.

Despite this, not all payment processors are designed with this functionality in mind. Many of them are still designed solely for in-person transactions, with online payments as a tacked-on afterthought (if it’s even offered at all). While these solutions can serve consumers more used to traditional methods, they’re missing a key emerging demographic.

Rather than settle for one or the other, your best bet is look for a payment processor that will let you do both—send online payment requests that your clients can pay on the go, or take credit card payments through a card reader in your office. While online payments will likely benefit your firm the most, you may sometimes have a need to process payments in person, such as working with a client who many not be as tech savvy as others.

Simpler fee structure for better account reconciliation

There’s no avoiding it—using a credit card processor means you’ll have to pay for fees on each transaction. For many payment solutions, these fees are debited as soon as a transaction is received. This may sound like a reasonable deal, but it can make reconciling your accounts an absolute nightmare. With every transaction in your history, you’ll have to take into account the amount you’ve billed with the amount displayed (which will include your processing fee). Why add extra work to your busy day?

Your best bet is to use a payment processor that will debit all of your fees on a single day rather than individually from each transaction. This way, you’ll see 100 percent of each payment in your transaction history, and can view your total processing fees as a separate charge each month. The result? Much simpler account reconciliation each month, which means more time spent serving clients.

Detailed transaction history and reporting

Speaking of reconciliation, the right reporting tools can make all the difference when choosing an online payment provider. Not only does this information let you balance your books properly, but it can also provide valuable insights in fostering your firm’s success. Of course, this is another area where not all payment processors are created equal.

The best payment solutions for lawyers will let you run detailed reports on your transactions, letting you filter them by time frame or the status of the payment. These solutions also make it easy to view your top clients by volume, payment trends, and even export your payment history in whichever format you prefer. In contrast, most payment providers will have metrics tracking gift cards or cash drawer history—stats that might appeal to a point-of-sale business, but a professional service firm like yours will have no interest in.

Pricing without gimmicks

Between the various different interchange rates, processing fees and codes to decipher, online payments systems can sound incredibly complicated. The last thing you want is to spend more time figuring out the fee structures of your processor than you do on billable hours.

Thankfully, there are payment processors that are not only competitive in the rates they offer, but also transparent in their pricing. Choose a payment processor with no hidden fees, no minimum processing requirements, and no long-term contractual obligations. Payment p

rocessors for professional service firms will let you easily forecast and budget for your expenses by keeping their rates straightforward and easy to understand.

Want to learn why LawPay is the #1 online payments solution for law firms? Download our Solution Brochure today!

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Original author: Guest Blogger
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GEE v. PLANNED PARENTHOOD OF GULF COAST, INC.. Decided 12/10/2018

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UNITED STATES v. STITT, VICTOR J.. Decided 12/10/2018

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Top 10 from Texas Bar Today: Unique, Unanimous, and Understanding

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. The Uncalled Witness RuleDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

9. FMLA and Key EmployeesThe Kumar Law Firm PLLC in Austin

8. Lawyers: Are You an Optimist Who is Driven to Succeed?Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

7. Motions to Suppress Evidence in Texas Criminal CasesNavarrete & Schwartz, P.C. in Midland

6. That’s Not “Stock” . . . Not Chapter 38 “Stock” At LeastDaniel Correa of Creedon PLLC @CreedonPllc in Frisco

5. Unanimous “Not Guilty” Jury Note was Not a Verdict. Convicted on Retrial – Madeline Pricer Jones of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth

4. Be Unique for Better Law Firm MarketingBruce Vincent of Muse Communications, LLC @MuseCommLLC in Dallas

3. El Paso COA Rules on Pre-Arbitration Discovery in Mandamus Relief CaseBeth Graham of Karl Bayer @karlbayer in Austin

2. Understanding The Texas Stowers Doctrine: What Is A Stowers Demand?Patterson Law Group @PattersonLawGrp in Fort Worth

1. Inflatables—Don’t Get Bounced!Kay 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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Unanimous “Not Guilty” Jury Note was Not a Verdict. Convicted on Retrial

Originally published by Madeline Pricer Jones.

The Court of Criminal Appeals recently handed down an opinion regarding whether a jury can informally acquit based on a unanimous jury note. The issue facing the court was whether…

The post Unanimous “Not Guilty” Jury Note was Not a Verdict. Convicted on Retrial appeared first on Fort Worth Criminal Defense Attorneys and Personal Injury Lawyers.

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

Original author: Madeline Pricer Jones
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S.D. Texas Orders Independent Contractor’s Lawsuit Filed Against Nonsignatory to Arbitration

Originally published by Beth Graham.


The Southern District of Texas has ordered a proposed class action lawsuit that was filed over an organization’s alleged violations of the Fair Labor Standards Act (“FLSA”) to arbitration.  In Randle v. Metropolitan Transit Authority of Harris County, No. H-18-1770 (S.D. Tex., Oct. 1, 2018), a Texas man, Randle, signed a series of independent contractor agreements to lease equipment from and drive for Yellow Cab Paratransit Services (“Yellow Cab”).  Each of the independent contractor agreements contained an arbitration provision stating all future disputes “arising out of or in any way relating to” the contract must be resolved through binding arbitration.

Meanwhile, Yellow Cab also contracted with the Greater Houston Transportation Company (“GHTC”) to provide van drivers for METROLift.  METROLift provides Houston-area residents who are disabled or elderly with free or subsidized local transportation services.

Randle operated a METROLift van as an independent contractor for Yellow Cab for a period of approximately seven years.  Despite that Randle contracted directly with Yellow Cab, he filed a proposed class action lawsuit against GHTC in May 2018.  According to Randle, he and other similarly situated drivers were misclassified as independent contractors.  In addition, Randle claimed he was denied overtime pay as required by the FLSA.  In response, the GHTC filed a motion to compel the case to arbitration based on Randle’s independent contractor agreement with Yellow Cab.

According to Randle, the dispute was not subject to arbitration due to the transportation worker exception included in Section 1 of the Federal Arbitration Act (“FAA”).  Randle also argued the arbitration provision was unconscionable because it required him to waive his FLSA rights.  In addition, Randle claimed GHTC did not have a right to enforce the arbitration provision included in his independent contractor agreement with Yellow Cab because the organization was not a party to the contract.

The Southern District of Texas first dismissed Randle’s transportation worker claim because he was not engaged in interstate commerce while executing his METROLift van driving duties.  The federal court said:

Circuit City Stores clarified that § 1 applies to a small class of workers. Circuit City Stores, 532 U.S. at 110. The Supreme Court explained that the proper interpretation of “transportation worker” relies on § 1’s residual clause. The phrase, “any other class of workers engaged in foreign or interstate commerce,” should be understood “to give effect to the terms `seamen’ and `railroad employees,’ and should itself be controlled and defined by reference” to those terms. Id. at 115. Only those “transportation workers” involved in interstate commerce fall under the § 1 exclusionary clause. Id. at 119.

Fifth Circuit precedent also makes the limited applicability of § 1’s exclusionary clause clear. In Rojas v. TK Communications, Inc., 87 F.3d 745 (5th Cir. 1996), the Fifth Circuit explained that “[t]he exclusionary clause . . . should be narrowly construed to apply to employment contracts of seamen, railroad workers, and any other class of workers actually engaged in the movement of goods in interstate commerce in the same way that seamen and railroad workers are.” Id. at 748. The Fifth Circuit described the Supreme Court’s holding in Circuit City Stores as “fully consistent with [the] reasoning in Rojas.” Brown v. Nabors Offshore Corp., 339 F.3d 391, 394 (5th Cir. 2003).

Under the Fifth Circuit’s decisions in Rojas and Brown, Randle is not “actually engaged in the movement of goods in interstate commerce in the same way that seamen and railroad workers are.” Rojas, 87 F.3d at 748. He cannot be excepted from the FAA on this basis. See, e.g., Calderone v. Sonic Houston JLR, LP, No. H-15-3699, 2016 WL 738642, at *3 (S.D. Tex. Dec. 21, 2016); Tran v. Texan Lincoln Mercury, Inc., No. H-07-1815, 2007 WL 2471616, at *5 (S.D. Tex. Aug. 29, 2007). The § 1 exception excludes specific workers—those in the transportation industry with a “necessary role in the free flow of goods”—for whom Congress had or was developing specific statutory dispute-resolution schemes. Circuit City Stores, 532 U.S. at 121. The defining quality of a § 1 “transportation worker” is moving goods through interstate commerce. Tran, 2007 WL 2471616, at *5. Randle’s work for METROLift involves transporting passengers locally in Harris County. He does not move goods on behalf of a carrier like a railroad or a vessel like a ship. Randle cites no cases in which a court has found that a public-transportation driver qualifies as a “transportation worker” within §1 of the FAA. Randle’s work does not qualify him as a “transportation worker” under the § 1 exception.

Next, the district court applied a two-step analysis to assess whether a valid agreement to arbitrate existed and, if so, whether the dispute before the court fell within the scope of that agreement.  After finding the arbitration agreement was neither illusory nor unconscionable, the Southern District of Texas held nonsignatory GHTC was permitted to enforce the arbitration provision based on a theory of direct-benefits estoppel.  Likewise, the court held Randle’s FLSA claims against GHTC fell within the scope of the agreement because the arbitration provision included in his signed independent contractor agreement was broad.

The Southern District of Texas concluded:

The arbitration clauses contained within Randle’s Agreements with Yellow Cab are valid, and Randle’s claims against Metro fall within the scope of those clauses. Under § 3 of the FAA, “a stay is mandatory upon a showing that the opposing party has commenced suit upon any issue referable to arbitration under an agreement in writing for such arbitration.” Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992). The Fifth Circuit has interpreted this language to mean that the district court cannot deny a stay when one is properly requested, not “to limit dismissal of a case in the proper circumstances.” Id. If all of the issues raised before the district court are arbitrable, dismissal is appropriate. Id. Because all of Randle’s claims are subject to arbitration, dismissal is proper.

Finally, the federal district court granted GHTC’s motions to compel the dispute to arbitration and dismiss the case.

Photo by: Mahdiar Mahmoodi on Unsplash

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

Original author: Beth Graham
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Texas Supreme Court holds special session to commemorate 100th anniversary of World War I armistice

Originally published by Adam Faderewski.

Justices of the Supreme Court of Texas convened a special session of the court on Wednesday to honor judges and governors who served in the armed forces during the Great War. Descendants of those honored were among those present in the crowd.

The session was held in the historic Texas Supreme Court courtroom in the Texas Capitol in recognition of 100 years since the end of World War I on November 11, 1918. Justice Paul Green presided over the court in the absence of Chief Justice Nathan L. Hecht, who was unable to attend the ceremony.

Texas Supreme Court Justice Paul Green applauds World War I veterans for their service during a special session of the Texas Supreme Court on November 14.

Houston District Judge Mark Davidson and Houston lawyer David Furlow, executive editor of the Texas Supreme Court Historical Society’s journal, spoke about the eight Texas Supreme Court justices, three governors, and one Texas Court of Criminal Appeals judge who served during World War I.

The eight Supreme Court justices were Few Brewster (1945-1957), Frank P. Culver Jr. (1953-1964), A.J. Folley (1945-1949), Wilmer St. John Garwood (1948-1959), Meade Felix Griffin (1949-1968; he also served on the Texas Court of Criminal Appeals in 1969), Robert W. Hamilton (1959-1971), Gordon Simpson (1945-1949), and Charles Stewart Slatton (1945-1947).

Governors recognized for service during WWI were Jimmy Allred (1935-1939), Beauford H. Jester (1947-1949), and Dan Moody (1927-1931).

In addition to Griffin, Texas Criminal Court of Appeals Judge George Eastland Christian (1927-1941) was honored.

Texas Supreme Court Justices
Few Brewster received his law degree from the University of Texas School of Law in 1916. He was inducted into the U.S. Army on May 26, 1918, in Temple, and was commissioned as a second lieutenant in charge of Company F of the 2nd Development Battalion of the U.S. Army’s 160th Division. During the war, Brewster was stationed at Camp Pike in Arkansas and later at Camp Custer in Michigan, to train troops. He was county attorney of Bell County from 1919 to 1923, district attorney from 1923 to 1928, district judge of the 27th District from 1929 to 1941, served on the Supreme Court of Texas’ Commission of Appeals from 1941 to 1945, and was a justice on the Supreme Court of Texas from 1945 until his death in 1957. Brewster also served as president of the Bell County Bar Association, head of the Texas Bar Association Judicial Section from 1937 to 1938, Texas Bar Association secretary from 1938 to 1939, State Bar of Texas vice president from 1939 to 1940, and State Bar president from 1940 to 1941.

Frank P. Culver Jr. received his law degree from the University of Texas School of Law in 1914. He was in private practice in Fort Worth from 1914 to 1917, when he enlisted in the U.S. Army. He was commissioned as a first lieutenant and fought in the battle of St. Mihiel and the Meuse-Argonne campaigns before serving in the Army of Occupation and being honorably discharged as a captain. Culver returned to Fort Worth were he was in private practice from 1919 to 1927, served as assistant district attorney in Fort Worth from 1927 to 1928, and was a judge of the 17th District Court from 1928 to 1950 (minus two years when Culver re-entered the armed forces during World War II). During World War II, he was commissioned as a lieutenant colonel and was stationed in San Antonio, Dallas, and Texarkana. Culver was honorably discharged as a colonel in September 1944 and served as president of a general court martial before retiring from the U.S. Army at the end of November 1954. He was president of the State Bar of Texas Judicial Section in 1950 and 1951. Culver was a judge on the 2nd Court of Criminal Appeals in Fort Worth from 1951 to 1952 and a justice on the Supreme Court of Texas from 1953 until his retirement in 1964.

A.J. Folley was drafted into service with the U.S. Army in June 1918 and was assigned to the Conservation and Reclamation Branch of Camp Travis’ Quartermaster Corps for the duration of World War I. After the war, he received his law degree from Baylor Law School in 1925 and would go on to private practice in Floydada and Spur. Folley was a district attorney in Dickens County from 1929 to 1934, a judge of the 110th Judicial District from 1934 to 1937 and the 7th Court of Criminal Appeals in Amarillo from 1937 to 1943, served on the Supreme Court of Texas Commission of Appeals from 1943 to 1945 and as a justice of the Supreme Court of Texas from 1945 to 1949. Upon leaving the Supreme Court, he practiced with Adkins, Madden, Folley & Adkins then Folley, Snodgrass & Calhoun until his retirement in 1980. Folley was State Bar of Texas president from 1959 to 1960 and was known for organizing the bar’s advisory council, adoption of a revised Code of Criminal Procedure, and adoption of several amendments to the State Bar Rules. He also served on the American Bar Association’s House of Delegates and on the Texas and National Commissions on Uniform State Laws.

Wilmer St. John Garwood registered for the Army on June 15, 1918, serving in the 1st Texas Cavalry along the Mexican border, and served in the Reserve until 1923. He received his law degree from the University of Texas School of Law and his LL.B. from the Harvard Law School in 1922. Garwood clerked for Baker Botts in Houston before joining Texaco in New York from 1922 to 1924, working in the legal department after being licensed in New York in 1923; worked at Baker Botts in Houston from 1924 to 1928; with Standard Oil Company in Buenos Aires, Argentina, from 1929 to 1933; and with Andrews, Kelly, Kurth & Campbell in Houston from 1934 to 1942, when he re-enlisted for service in World War II. Due to his age, he was not placed in active duty but was appointed as a second lieutenant commander in naval intelligence in Chile from 1942 to 1945, where he served as naval liaison officer in Tocopilla, senior assistant naval attaché in Santiago, and received the Orden al Merito Chile from the Chilean government for his service. Garwood returned to practice law in Houston from 1945 to 1948 and served as a justice on the Supreme Court of Texas from 1948 until his retirement in 1959. In retirement, he did work with Graves, Dougherty, Hearon & Moody in Austin and was a visiting professor of law at Southern Methodist University School of Law and the University of Texas School of Law. Garwood was a trustee of the University of Texas Law Foundation and served eight years as Texas Civil Judicial Council president. His son, William Lockhart “Will” Garwood, was appointed to the Supreme Court of Texas in 1979, becoming the first and only father and son to serve on the court.

Meade Felix Griffin received his law degree from the University of Texas School of Law in 1917 before joining the Army and being commissioned as a major on September 13, 1918, and stationed in Camp Sheridan in Montgomery, Alabama. At the end of the war, he was offered a regular commission as a captain in the Army, but he declined to practice law in Tulia—Griffin remained in the Reserve as a major. He was promoted to lieutenant colonel in 1929 and entered the inactive Reserve in 1936. Griffin returned to the Army as a lieutenant colonel on July 27, 1942, after the U.S. entered World War II. Post-World War II, he helped to establish the trial section of the U.S. Army’s war crimes department at Wiesbaden, Germany, and was appointed chief prosecutor in the U.S. War Crimes branch of the U.S. Army in Wiesbaden in 1945. Griffin retired as a colonel in the Judge Advocate General’s Corps in 1953. He served as a justice on the Supreme Court of Texas from 1949 to 1968, as a special judge on the Texas Criminal Court of Appeals in 1969, and was assistant attorney general of Texas from 1969 to 1971.

Robert W. Hamilton enlisted at the Smith County Draft Board in Tyler on September 10, 1918, while employed and going to school at the University of Texas. He was made part of the Student Army Training Corps, which later would become the Reserve Officers’ Training Corps, or ROTC, being honorably discharged from SATC in November 1918 before being honorably discharged from the Army in December 1918. Hamilton was licensed as an attorney in 1927 and went into private practice in Tyler until 1929. He was Martin County attorney in 1929, district attorney to the 70th Judicial District from 1930 to 1935, and in private practice specializing in oil, gas, and mineral law in Midland from 1935 to 1951. Hamilton was district judge for the 70th Judicial District in Midland from 1951 to 1953, chief justice of the 8th Court of Appeals in El Paso from 1953 to 1958—authoring more than 350 opinions—and a justice on the Supreme Court of Texas from 1959 until his retirement in 1971.

Gordon Simpson reported to Camp Leon Springs, First Officers’ Training Camp, in May 1917. He was appointed as a second lieutenant in August 1917 and was stationed with the Quartermaster Corps and promoted to first lieutenant in August 1918. Simpson also served at Camp Joseph E. Johnston near Jacksonville, Florida, and Camp A.A. Humphreys in Fairfax County, Virginia, before being honorably discharged on April 8, 1919. Simpson received his law degree from the University of Texas School of Law in 1919 and practiced in Pecos and Tyler. He served in the Texas House of Representatives from 1923 to 1927. Simpson was appointed district judge of the 7th Judicial District in 1930. He served on the Texas Bar Association Board of Directors from 1927 to 1939, including time as the chairman; was appointed vice chairman of the Supreme Court of Texas Advisory Committee on the State Bar Act and interim director of the State Bar in 1940; and served as State Bar president from 1941 to 1943. Simpson re-enlisted in the Army during World War II and served as a major in the JAG Corps, attaining the rank of lieutenant colonel. He was elected to the Supreme Court of Texas in 1945, while serving in Italy. Simpson was called back to active duty by the Army in 1948 to serve on the JAG Corps’ commission in Dachau, Germany, where he was charged with reviewing the convictions and sentences of Germans found guilty of war crimes. He resigned from the Supreme Court of Texas in 1949 and became vice president and general counsel to General American Oil Company, eventually becoming president. Simpson later joined Thompson & Knight, where he worked until 1985 at the age of 90.

Charles Stewart Sutton was a corporal with Company E in the Headquarters and Supply Detachment of the U.S. Army Signal Corps’ 51st Telegraph Battalion (later re-designated the 55th Telegraph Battalion). Sutton was assigned to the American Expeditionary Force’s 4th Corps and trained at Camp Upton in Suffolk County, New York, before going to Europe. During combat in Europe, he was twice the victim of poison gas attacks and served in the occupation army in Germany after the war. Sutton received his law degree from Cumberland University School of Law in Tennessee in 1923 and returned to Texas to practice law in Jourdanton. He was county attorney for Atscosa County for two years; served three terms as district attorney of the 81st Judicial District; was appointed justice of the 4th Court of Appeals in San Antonio in 1937; was appointed to the Supreme Court of Texas Court Commission of Appeals in 1940; and served as a justice of the Supreme Court of Texas from 1945 to 1947, when he resigned to become general counsel to Southwestern Bell Telephone Company in Dallas. Sutton was president of the District and Appellate Judges Section of the State Bar of Texas from 1942 to 1943. He died in 1951 from a heart attack that was most likely in part caused by the two poison gas attacks from his time in Europe.

Texas Governors
Jimmy Allred enlisted as a seaman in the U.S. Navy in June 1918, despite being draft exempt, and was most likely stationed at Camp Farragut in San Francisco, California, before being honorably discharged in February 1919. He received his law degree from Cumberland University School of Law in Tennessee and would serve as a district attorney and then Texas Attorney General before becoming governor in 1935. Allred was governor of Texas until 1939.

Beauford H. Jester was only about a month from graduating from Harvard Law School when he returned to Texas to enlist in the U.S. Army and was assigned to the first class of Officers’ Training Camp in Leon Springs. He entered the 179th Infantry Brigade as a private but was promoted to captain six weeks later. Jester arrived in Europe in July 1918, having likely survived a U-boat attack during the Atlantic crossing. Upon arrival, he received a letter addressed to the U.S. soldiers from King George V of Great Britain. Jester took part in the battles of St. Mihiel and the Meuse-Argonne campaign, where he suffered a heavy dose of mustard gas but refused to abandon his men on the frontlines. He served in the army of occupation in Lissendorf, Germany, until May 1919 when he was sent home on a hospital ship, still suffering the effects of the poison gas. Jester received his law degree from the University of Texas School of Law in 1920. He was appointed to the University of Texas Board of Regents in 1929 and served two years as chairman. Jester was appointed and elected to the Texas Railroad Commission in 1943 and served as governor of Texas from 1947 until his death in 1949, from a heart attack likely in part as a result of the mustard gas attack.

Dan Moody tried to enlist in the U.S. Army Air Service in 1917 but he was deferred from service because his mother was an invalid. He later joined the Texas National Guard, being commissioned as a second lieutenant. Moody gave up his Texas National Guard commission and enlisted in the Army as a private in 1918, being stationed in Camp Pike, Arkansas, where he was in training at the time of the war’s end. He was district attorney for Williamson and Travis counties and won a series of trials against the Ku Klux Klan. Moody was elected governor of Texas in 1927, the youngest governor in Texas history, and served until 1931.

Texas Court of Criminal Appeals
George Eastland Christian received his law degree from the University of Texas School of Law in 1912 and had a private practice in Burnet until he enlisted in the U.S. Army in April 1917, being assigned to the 90th Infantry Division at Camp Travis. He was commissioned as second lieutenant at Leon Springs before arriving in Europe in late June 1918. Christian took part in the battle of St. Mihiel and the Meuse-Argonne Campaign. He received a battlefield promotion to first lieutenant and was honorably discharged in 1919. Christian returned to private practice in Burnet from 1919 to 1925; served as district attorney for the 33rd Judicial District; was an assistant attorney general in the Texas Attorney General’s Office in 1925; served on the State Board of Prison Advisers in 1927; and was on the Commission of the Texas Court of Criminal Appeals from 1927 until the time of his death in 1941.

For more detailed information about each honoree, see the fall 2018 issue of the Journal of the Texas Supreme Court Historical Society, available at http://ow.ly/esPv30mDrRu.

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

Original author: Adam Faderewski
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Discounts for outdoor items

Originally published by Staff Report.

Whether you want to hike and bike through parks and trails or explore new lands and immerse yourself in new cultures, your Member Benefit Program can help. For more info, check out the Sports & Outdoors and Travel pages.

Eartheasy — Eartheasy provides solutions for sustainable outdoor living. Get 15% off, plus free shipping, on LifeStraw, Scrubba, and EcoZoom products at Eartheasy.com. Full Speed Ahead — Full Speed Ahead develops world-class wheels, cockpit, and drivetrain components for road, tri, track, gravel, cyclocross, and mountain bikes. Collette Travel — Collette Travel offers over 160 guided tours spanning all continents, so you to explore all the corners of the world. Save up to $600 per person.

Get a head start on holiday shopping or try something new with the fresh new brands your Member Benefit Program has to offer. For more details, visit the Family, Education, and Flowers & Gifts pages.

Brookdale Senior Living — Are you looking for help with an aging loved one’s care or daily needs? You and your family are eligible for benefits and savings on Brookdale Senior Living’s comprehensive senior-care services. Bisk — The State Bar of Texas and Bisk have partnered to offer a wide selection of online degrees and certificates from leading universities and designed for busy professionals. Appliances Connection — A home-goods retailer with two decades of experience, Appliances Connection offers a wide range of name brands. Save 5% site-wide. Texwa Jewelry Works — With lower overhead than the typical jeweler, Texwa can offer customers beautiful jewelry at low prices. Save 20% site-wide.

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

Lifestyle
Spend time on you—life doesn’t have to be all work and no play. Browse offers Office
Make your practice more efficient with new tools and programs. Browse offers Travel
Make your plans for anything and anywhere, from a much-needed vacation to a quick business trip. Browse offers Insurance and Finance
Get peace of mind with health insurance and a retirement plan that work for you. Browse offers Technology
Get up to speed on everything from building a website to billing clients. Browse offers Additional Benefits
Look through hundreds of offerings to find just what you need—and things you didn’t even know about. Browse offers

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

Original author: Staff Report
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