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Celebrating 50 Years of Texas Pattern Jury Charges

Once again, after many months of hard work by attorney-authors and in-house staff, TexasBarBooks has successfully updated the civil series of the Texas Pattern Jury Charges. For 50 years, the Texas Pattern Jury Charges have been valued tools for both the bench and the bar for drafting questions, instructions, and definitions in a broad variety of cases.

To reach the point of publication, volunteer committees meet regularly to discuss legislative and caselaw changes that affect the volumes and new topics that should be covered in them. TexasBarBooks staff publications attorneys and editors then review and fine-tune the material provided by these committees, after which the printed books go into production and the digital downloads are created.

The State Bar of Texas Book Fund was established in 1960, and the first book designed to assist lawyers in their practice that appears to have had substantial staff support was Texas Pattern Jury Charges, Volume 1, published in 1969. “This year we celebrate 50 years of the esteemed Texas Pattern Jury Charges,” said TexasBarBooks Assistant Director Jill Hoefling. “We are proud to present the 2018 civil editions and wish to thank the members of our PJC committees, who work tirelessly to ensure that every word in new and existing jury charges correctly reflect current law, and our dedicated staff for its hard work and diligence in getting these volumes into the hands of Texas lawyers.”

Original author: Lara Talkington
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SICYMI: Secretary Whitley Visits Alice High School, Encourages Eligible Students To Register To Vote

"On Monday, Texas Secretary of State David Whitley visited his alma mater, Alice High School, to address the senior class on the importance of registering to vote and civic engagement. "
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Secretary Whitley Meets With Public Officials, Community Leaders During Rio Grande Valley Engagement Tour

"Texas Secretary of State David Whitley visited the Rio Grande Valley this week to meet with public officials, economic development organizations, and community leaders in order to strengthen relationships with local stakeholders throughout the border region."
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Secretary Whitley Announces Expanded Opportunities For Businesses To Help Fight Human Trafficking

"Our TBAT participants are leading the way in addressing a serious issue that affects so many lives throughout Texas and the nation"
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Secretary Whitley Issues Advisory On Voter Registration List Maintenance Activity

"Texas Secretary of State David Whitley today issued an advisory to county voter registrars regarding voter registration list maintenance activities, which include identifying any non-U.S. citizens registered to vote in the State of Texas."
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Secretary Whitley Hosts Meeting With State Party Chairs On Election Administration

"Texas Secretary of State David Whitley today hosted a meeting with Texas Democratic Party Chairman Gilberto Hinojosa and Republican Party of Texas Chairman James Dickey to discuss ways to improve communication and efficiency in election administration in the State of Texas."
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Secretary Whitley Convenes The 86th Texas Legislature

"Texas Secretary of State David Whitley convened the 86th Legislative Session today, presiding over the opening ceremonies for the Texas House of Representatives and conducting the election of Texas' new Speaker of the House, Representative Dennis Bonnen."
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Top 10 from Texas Bar Today: Cell Phones, Gift Cards, and Video Games

Originally published by Joanna Herzik.

10. Not-so-subtle hint about CasteelDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

9. Workers Paid with Gift CardsThomas J. Crane @tomjcrane of Law Office of Thomas J. Crane  in San Antonio

8. Can an Independent Executor Alter How my Property is Distributed? –  Rania Combs of Rania Combs Law @raniacombs in Houston

7. Lawyers: Do you have the fire in your heart?Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

6. Big Picture Perspectives for the Final Weekend of Bar Prep: “See It–Do It–Teach It” – Scott Johns of the Law School Academic Support Blog

5. Copyright Infringement of Dance Moves in Video Games – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

4. Ongoing Struggle with Cell Phone GPS and Right to PrivacyJohn T. Floyd of John T. Floyd Law Firm @HoustonDefender in Houston

3. Stunning Dallas Jury Verdict for $37 Million AwardedBill Berenson @LawyerFortWorth of Berenson Law in Fort Worth

2. A Tale of Two Arbitration Waivers: HTC Corporation v. Telefonaktiebolaget LM Ericsson – Kyle Bailey of Karl Bayer @karlbayer in Austin

1. The KonMari Method to Effective Law Firm MarketingBruce Vincent of Muse Communications, LLC @MuseCommLLC in Dallas

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

Original author: Joanna Herzik
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Can an Independent Executor Alter How my Property is Distributed?

Originally published by Rania Combs.

A man who was named independent executor in a Will called me. Someone told him that because he was named as the independent executor, he had the right to distribute Testator estate any way he wished. He was calling to ask if that was true.

It is not!

The role of an executor is to carry out to carry out the Testator’s wishes. After an application to probate the Will has been filed and the Court has authorized an executor to act on behalf of the estate, the executor will be authorized to:

collect and inventory the testator’s assets; manage and safeguard the assets during administration; receive and pay the valid claims of creditors and tax collectors; pursue any claims owing to the estate; and distribute the remaining assets to the decedent’s beneficiaries as the testator instructed in the Will.

An  executor is legally obligated to follow the testator’s directions and may  not change the beneficiaries of the will or how and to whom the testator’s property is distributed. In fact, executors have a fiduciary duty to protect the interests of the estate’s beneficiaries.

The fact that a Will names an “independent executor” does not mean that the executor has the authority to disregard the testator’s wishes. It simply means that in carrying out the executor’s duties, the executor may act almost entirely without the supervision or control of the probate court.

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

Original author: Rania Combs
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Tech Giant Google to End Mandatory Arbitration for Employees

Originally published by Kyle Bailey and Beth Graham.


Multinational technology company Google has reportedly announced it will no longer require mandatory arbitration of employee disputes with the company effective March 21, 2019.  The company’s new arbitration policy will apply to Google employees as well as individuals who work for entities that exist under the Google legal umbrella such as the Access broadband unit and the DeepMind artificial intelligence program.  The mandatory arbitration change will not, however, apply to other related companies that are owned by Alphabet but outside of the Google legal entity.  Although the arbitration change will technically apply to the company’s temporary and contract workers, Google will not require staffing companies to alter their own employment contracts.

The elimination of Google’s mandatory arbitration requirement came after a group of Google employees placed public pressure the company to back away from mandatory arbitration. Last November, a number of Google employees participated in a global walkout to protest the way Google handled sexual harassment claims filed against the company’s top executives. Following the walkout, Google and other leading technology companies such as Microsoft Corporation waived their policies for mandatory arbitration of sexual harassment claims. At the time, however, Google maintained its mandatory arbitration requirement for other employee claims.

Google’s announcement means employees will now have the option of choosing to resolve any future claims against the company through either court or arbitral proceedings. Despite the policy change, Google will not reopen employee claims that have already concluded arbitration or have previously settled.

Photo by: Benjamin Dada on Unsplash

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

Original author: Kyle Bailey and Beth Graham
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Weekly Round Up – Ag Law

Originally published by tiffany.dowell.

 

Happy Friday and happy FFA week!  I, like many of you, credit FFA for so much of my success in my life and career.  I hope you take a moment to think back on what FFA has given  you and think about ways you might be able to give back to the organization.

This was me, being named New Mexico State Star Farmer in 2001.

I also want to say a special welcome to those of you who are joining us after attending the Central Texas Farm Credit diner in Haskell this week.  It was an honor to speak with you all and I want to welcome you to the Texas Ag Law Blog.

Here are some ag law stories in the news over the past couple of weeks.

*SCOTUS will hear Hawaii Wildlife Fund v. County of Maui case involving indirect discharges into groundwater.  In what some are calling the biggest environmental case before the US Supreme Court this year, the Justices have granted cert in in the Maui case to address the issue of whether an indirect discharge, such as one made into groundwater the eventually reaches a jurisdictional water, is regulated under the Clean Water Act.  [Read article here.]  To read more about this issue and the cases that led to a split among the federal circuit courts, click here.

*Comment period now open for new proposed WOTUS definition.  On Valentine’s Day, the EPA and US Army Corps of Engineers published the new proposed WOTUS definition in the Federal Register.  [Read published rule here.]  That opened up a 60-day comment period during which anyone can comment on the published definition.  After that period has closed in April, the EPA and COE will take the comments under consideration, make any revisions they deem necessary, and publish a final rule.  For more information on the WOTUS rule, including a discussion of the differences between the 2015 rule and this new rule, click here to listen to my podcast episode with Jim Bradbury.  Also, if you are interested in making a comment, the Maryland Risk Management Education Blog  has compiled a list of the various ways to do that, which you may access here.

* Leon County judge rules that proposed Bullet Train is not “railroad” and, therefore, lacks eminent domain power. Last week, a Leon County judge ruled that Texas Central, the company planning to build the high speed rail between Dallas and Houston did not qualify under Texas law as a “railroad” or an “interurban electric railway” and, as such, does not have the power of eminent domain for the high speed rail project.  Texas Central has announced it intends to appeal this judge’s ruling, citing to a prior determination by the court in Harris County finding Texas Central to be a bona fide railroad company with condemnation power under Texas Transportation Code Sections 81.002 and 131.011. [Read article here.]

*Digital asset considerations when drafting estate plans.  I read an interesting article by attorney Sam Moak from Huntsville recently talking about the various problems that can come up when someone passes away and did not provide consideration to how digital assets should be dealt with.  From keeping a password list (in a secure location, of course) to backing up emails to social media accounts, there are a number of items to think about when drafting an estate plan these days.  [Read article here.]  Also, to see how this can be a major issue in the real world, check out this recent news article.

*Iowa will appeal “ag gag” ruling.  You may recall from this prior blog post that an Iowa court recently struck down the state’s “ag gag” law as unconstitutional.  [Read article here.]

*Class action lawsuit filed against Chipotle.  My friend Paul Goeringer recently wrote a blog post discussing a class action lawsuit alleging that Chipotle’s advertising campaign that products were “non-GMO” and “GMO free” violated consumer protection laws in CA, MD, and NY.  Plaintiffs argue the restaurant violated the law when they made such statements, but then served protein, cheese, and sour cream produced from animals t hat were raised on GMO feed and beverages made with GMO corn syrup.  In September, the federal court granted class action status, certifying a class of all persons in CA, MD, or NY who purchased Chipotle’s food products containing meat or dairy ingredients between April 27, 2015 and June 30, 2016.  The court has yet to consider the merits of the case, ruling only that the case would be allowed to proceed as a class action.  [Read blog post here.]

*Death on the family farm.  After a rough day back home last weekend, I wrote a little blog post about death on the family farm and the lessons that allows us to teach our children.  [Read post here.]

 

The post February 22, 2019 Weekly Round Up appeared first on Texas Agriculture Law.

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

Original author: tiffany.dowell
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Big Picture Perspectives for The Final Weekend of Bar Prep: "See It–Do It–Teach It"

Originally published by Academic Support.

Next week, thousands will be headed to convention centers, etc., to show case the handy-work of their bar preparation efforts for the past two months. In preparation, bar takers have watched weeks of bar review lectures, worked hundreds and even…

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

Original author: Academic Support
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Governor appoints Brett Busby to Texas Supreme Court

Originally published by Lowell Brown.

Governor Greg Abbott announced Thursday he has appointed former 14th Court of Appeals Justice Brett Busby to the Texas Supreme Court for a term set to expire on December 31, 2020. Busby’s appointment, which is subject to Senate confirmation, follows the retirement of Justice Phil Johnson in December.

Read the governor’s announcement.

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

Original author: Lowell Brown
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Ongoing Struggle with Cell Phone GPS and Right to Privacy

Originally published by John Floyd.

Court Continue to Struggle with Cell Phone and Right to Privacy

 

Once considered a sacred cow, individual privacy has succumbed to governmental interference, especially in the area of how law enforcement cell phone technology to track and apprehend criminal suspects.

 

Cell site location information (“CSLI”) or global positioning system (“GPS”) real-time information can locate a cell phone within 5 to 10 feet of its location through identification information collected by multiple cell towers about the device. The National Association of Criminal Defense Lawyers’ (“NACDL”) primer on Cell Phone Location Tracking refers to this technique as “triangulation.”

 

A cell phone’s CSLI falls into two categories: “historical” or “prospective.”  Most often, however, CSLI falls in to the historical category while GPS real-time information falls into the prospective category.

 

The NACDL primer notes that law enforcement can use historical CSLI to connect a suspect to the location of a past crime allowing them to associate him or her to past incriminating events. Prospective location has a more immediate benefit—it allows law enforcement to trace the current whereabouts of a suspect in order to make an arrest.

 

The NACDL also instructs that federal law enforcement officials rely primarily on two statutes to secure an order of production against cell phone service providers to gain access to either CSLI or both GPS real-time information in order to track, locate, and/or incriminate an individual suspected of criminal activity. These statutes are:

 

18 U.S.C. §§ 2701-2703 (Stored Communications Act) – deals primarily with historical information (records stored by cell phone service provider detailing past locations of the cell phone). An order for production under this statute requires a showing to a judge or magistrate that “specific and articulable facts” show that the information sought is “relevant and material to an ongoing criminal investigation.” 18 U.S.C. §§ 3121-3127 (Pen/Trap Statute) – deals with prospective real-time location information (all cell site information after government granted authority to acquire it and “real time” information pinpointing the present location of the cell phone). An order for production under this statute requires the same standard as the Stored Communications Act but must also meet the Pen/Trap Statute’s requirement “that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.”

 

Texas’s version of these two federal statutes combined is Article 18.21 of the state’s Code of Criminal Procedure.

 

Expectation of Privacy in Texas

 

On January 16, 2019, the Texas Court of Criminal Appeals (“CCA”) issued an opinion in Sims v. State dealing with the Stored Communications Act and Article 18.21. The Sims case dealt with law enforcement using real-time location information to track the suspect’s cell phone by “pinging” it without a warrant. That prospective information allowed law enforcement to locate and arrest the suspect. Sims sought to suppress this prospective real-time information because the search violated the Fourth Amendment to the U.S. Constitution, the Stored Communications Act, and Article 18.21.

 

The CCA granted review in the Sims case to decide two issues:

 

Whether suppression is a remedy for a violation of the Stored Communications Act and Article 18.21; and Whether a person is entitled to a reasonable expectation of privacy in real-time CSLI records stored in a cell phone’s electronic storage.

 

The CCA ruled that suppression is not a remedy for a violation of the Stored Communications Act and/or Article 18.21 unless that violation infringes upon the U.S. or Texas constitutions. As for the Fourth Amendment privacy issue, the Court concluded that under the facts of the Sims case the defendant did not enjoy an expectation of privacy to the real-time location information stored in his cell phone.

 

Last year the U.S. Supreme Court in Carpenter v. United States ruled that an individual has certain expectations of privacy in stored cell phone information equivalent to the Fourth Amendment protections against physical intrusions in other areas. Five justices in Carpenter, including the majority opinion written by Chief Justice Roberts, chose to use a “physical-trespass theory” over the historical “expectation-of-privacy theory” to conclude that “longer term GPS monitoring” could nonetheless violate an individual’s legitimate expectation of privacy “regardless [of] whether those movements were disclosed to the public at large.”

 

Expectation of Privacy Depends of Quantity of Information Searched, Seized

 

The Texas CCA pointed out that while Carpenter dealt with historical CSLI information, not GPS real-time information, the CCA nonetheless believes Carpenter applies to both historical and prospective (real-time) information. Against that constitutional backdrop, the CCA concluded in Sims:

 

“Whether a particular government action constitutes a ‘search’ or ‘seizure’ does not turn on the content of the CSLI records; it turns on whether the government searched or seized ‘enough’ information that it violated a legitimate expectation of privacy. There is no bright-line rule for determining how long police must track a person’s cell phone in real time before it violates a person’s legitimate expectation of privacy in those records. Whether a person has a recognized expectation of privacy in real-time CSLI records must be decided on a case-by-case basis.”

 

The CCA pointed out that this legal conclusion was based on the factual difference between Sims and Carpenter. Law enforcement in the Sims case accessed “three hours of real-time CSLI records” by pinging the defendant’s cell phone less than five times while law enforcement in Carpenter accessed more than seven days of CSLI from the cell phone service provider.

 

Chief Justice Roberts also confined the Carpenter ruling to the specific facts in that case as the Texas CCA did in Sims.

 

Thus, it appears to us that the two courts are saying that brief intrusions on historical CSLI and/or GPS real time information do not violate the expectation of privacy guaranteed by the Fourth Amendment but extended surveillance in either or both areas of information violates an individual’s privacy rights.

 

 

 

The post Ongoing Struggle with Cell Phone GPS and Right to Privacy appeared first on .

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

Original author: John Floyd
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Gas Flaring in the Permian

Originally published by John McFarland.

Last month the Environmental Defense Fund released an analysis of NOAA satellite data estimating volumes of gas flared in the Permian Basin in 2017. Its findings: operators report half of the amount of gas actually flared.

Flaring-graphic

104 Bcf of gas is enough to serve all needs of Texas’ seven largest cities – $322 million worth of gas. The State also does not collect severance tax on that gas.

Operators must obtain permits to flare gas and report volumes flared. The RRC has not denied any permits. Between 2016 and May 2018, the RRC issued more than 6,300 flaring permits in the Permian. Between 2008 and 2010, the RRC issued fewer than 600 flaring permits for all of the state.

EDF’s analysis also compared the top 15 oil producers in the Permian (click on image to enlarge):

Operator-flaring-in-Permian

Last October S&P Global Market Intelligence issued an analysis of flaring in the Permian Basin and the Eagle Ford. It also relied on satellite data and a NOAA algorithm that estimates flared volumes. Its analysis concluded that in 2017 Texas operators flared 163 Bcf of gas, about 2.6% of the state’s natural gas production. NOAA data indicates that Operators may have flared nearly 1 Tcf of gas from 2012 to 2017. The analysis also remarked on the difference between reported volumes of flared gas in Texas – 1.6% of production in 2017 – and NOAA estimates of 2.6%. (S&P Global’s report online has a cool graphic showing rates of flaring over time on a map of Texas.)

In contrast, S&P Global found closer agreement between NOAA and state data in North Dakota, where the Bakken production occurs – but still under-reporting of flared volumes. North Dakota regulators have sought to reduce flaring and fine violators, planning to require producers who exceed allowed flaring levels of 15% of production to shut in their wells until pipeline infrastructure can be built to market the gas.

EDF’s report also analyzed flared gas on state-owned University Lands, more than 2 million acres in the Permian. University Lands collects royalties on flared gas. EDF concluded that UL has a lower rate of flaring on its wells – 2.75% – than the overall Permian average of 4.4%. A higher degree of lease management and the requirement to pay royalties on the gas flared likely correlated to better performance.

Both EDF and S&P Global concluded that state regulators should incorporate NOAA satellite data into their regulatory oversight to identify violators. EDF also recommended that operators be required to pay state severance tax on flared gas. EDF’s other recommendations included requiring best flaring technologies, eliminating the duration of flaring permits, and encouraging technologies that capture the gas onsite.

Yesterday the three commissioners of the Texas Railroad Commissioners, Ryan Sitton, Christi Craddick and Wayne Christian, appeared before the Texas Senate Natural Resources and Economic Development Committee and were questioned about these reports that methane emissions were “much higher than the EPA predicted in West Texas.” All said they did not believe those reports. Sitton said he thought the volumes reported to the RRC are “very close to accurate.” Craddick said she was “not sure if [the reports] are accurate or not.” Collin Leyden of EDF commented that the commissioners “seem to dismiss the reports on the grounds they believe that the data they have is correct. I did not hear any sort of technical analysis of the satellite data indicating they had found any sort of flaws or errors.”

 

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

Original author: John McFarland
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The KonMari Method to Effective Law Firm Marketing

Originally published by Bruce Vincent.

There are many available tools for effectively marketing a law firm but one resource that’s all the rage but not might not immediately jump to mind is the popular KonMari lifestyle. The brainchild of Japanese organizing consultant Marie Kondo, KonMari essentially boils down to taking stock of everything you own and then eliminating whatever fails […]

The post The KonMari Method to Effective Law Firm Marketing appeared first on Muse Communications.

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

Original author: Bruce Vincent
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Non-cash compensation in a Texas divorce

Originally published by Michelle O'Neil.

Highly compensated individuals may have a laundry-list of deferred compensation awards going out over many years. Sometimes these compensation methods require negotiation transactions during a divorce that may or may not be legally permitted without full transparency. In most Texas courts, there are “standing orders” that automatically apply to every divorce that prohibit certain types of transactions. It is important to understand the marital assets in order to prevent the client from inadvertently violating one of these rules.

Some types of non-cash compensation include incentive or employee stock options, employee stock purchase plans, and restricted stock options. Understanding the nuances of each of these types of awards is critical and hiring a financial expert may be warranted.

Stock option exercise patterns vary but typically are exercises at least annually but can be as often as quarterly. Consider whether the client has the authority under the prevailing orders to exercise the options or execute a sale of the newly acquired stock. Having knowledge of the vesting schedule and marking the dates for discussion with the client may be critical to keeping the client out of hot water with the court. It may be necessary to preemptively file and set a motion for hearing to address these matters and get early permission to act.

It may be necessary to have a plan and strategy in place to advise the client in the event of market volatility, especially if the client is heavily invested in one particular stock.

Sometimes it may be easiest to seek spousal consent to the actions necessary to protect the marital estate. Reaching an agreement is usually less costly than litigating when possible.

 

Hat tip to Vincent J. Fiorentino and Alexandra Mililli for their article 6 Ways to prepare clients with non-cash compensation in the Family Lawyer Magazine.

 

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

Original author: Michelle O'Neil
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LANCEv.SELLERS. Decided 01/07/2019

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ESCONDIDOv.EMMONS. Decided 01/07/2019

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SHOOPv.HILL. Decided 01/07/2019

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