Texas Lawyer Blog

Shelton a no-show – again

Criminal-defense lawyer Catherine Shelton and her attorney, James Lombardino, principal in Houston’s Lombardino & Associates, did not attend a July 27 hearing before the State Bar of Texas 4B4 Evidentiary Panel in Houston on Shelton’s motion for rehearing and to set aside the disbarment judgment that the panel issued in May. As noted in the May 17 judgment of disbarment in Commission on Lawyer Discipline v. Shelton, the evidentiary panel found that Shelton twice failed to appear at hearings on one client’s motion for a new trial and accepted $20,000 from another client but failed to work on his appeal.  The panel also found, according to the judgment, that Shelton repeatedly was late for another client’s trial in Hood County and failed to show up for hearings when the trial court held her in contempt.  Texas Lawyer was unable to locate Shelton.  Lombardino, who is on vacation, did not return a telephone call seeking comment. In June 2006, the Board of Disciplinary Appeals reversed a default judgment of disbarment against Shelton because of a deficiency in the affidavit of substitute service on her.

-- Mary Alice Robbins   

Re: Look to the left, look to the right

I salute John for suggesting that people should experience life before allowing their political views to fully congeal, but let's face it, that's not going to happen. The Alex P. Keatons of the world will always be with us. My take is that extracurricular groups such as ACS and the Federalist Society make law school more tolerable, because otherwise it is all case memorization and analysis. Anytime you can think more broadly about the world -- rather than simply do "IRAC" -- is good. Also, I don't think legal philosophies are akin to politics. A legal philosophy may help guide you to a certain result, but it does not dictate that result.
-- Jonathan Fox

T-ball is an option

Too often, average players are benched at company softball games, while the best players dominate the diamond, defeating the purpose of work-related teams organized to foster camaraderie and fun. But there could be a downside to mixing near-pros with average Joes. On July 31, 2005, Amber Stovall was an employee of a Longview Chili’s, competing in a Frisco softball tournament involving various Chili’s restaurants, according to her suit, Stovall v. Brinker International Inc., filed July 27 in the U.S. District Court for the Eastern District of Texas. When Stovall was up at bat, the suit alleges, the opposing team’s pitcher threw a pitch that hit Stovall and crushed her cheekbone. Stovall claims that the pitcher who hit her was a college baseball player. In her suit, Stovall sued Brinker International Inc. for negligence, faulting Brinker for not providing players with safety equipment and not warning players of the “potential dangers involved in participating in the tournament because of the other players’ athletic abilities and prowess in the game of softball.” If Stovall's version of the facts is correct, perhaps Chili’s should try slow-pitch softball at next year’s tournament?
-- Jonathan Fox

Look to the left, look to the right

Apparently, there's rising interest on Texas law school campuses for starting chapters of the left-leaning American Constitution Society for Law and Policy to counter the right-leaning Federalist Society for Law and Public Policy Studies.  Joining either group is sort of like being pro-choice or pro- life -- law students get to pick which side they're on. Is the Constitution an evolving document or not? Call me a crank (because I am), but I think both groups should be banned from law school campuses. Nothing riles me up more than law students who read politics into law and groups that are more than happy to help pollute their young minds. Live some life, handle some cases, and then we'll listen to your opinions.

--- John Council

Not following the pack

Dallas-based Winstead is holding to its own course as far as associate salaries are concerned. The 303-lawyer firm will not increase associate base salaries in the wake of a Texas market move that includes a new $160,000 base for first-year lawyers and $170,000 for second-years. Houston-based Vinson & Elkins announced a new, higher salary scale on July 17, and several other large Texas-based firms say they will match the V&E base at the first- and second-year levels, but are studying the rest of the scale. Denis Braham, chairman and chief executive officer of Winstead, says, “We are not going to act reflexively in a lock-step action without regard to actual contributions an individual associate makes.” However, Braham says Winstead’s associates will be eligible for larger merit-based bonuses. For instance, first-year lawyers at Winstead will continue to be paid a base salary of $135,000, but instead of getting a $5,000 bonus, the associates can earn up to $25,000 in merit bonus, he says. The maximum bonus for eighth-year lawyers increases to $80,000, up from $45,000; those associate will continue to be paid up to $190,000 in base, Braham says. Winstead associates got the news last Friday. Braham says, “I’ve had a number of associates say, ‘Thank you.’ A lot of them feel the increased base salary wars would put sort of an irrational pressure on them.”

-- Brenda Sapino Jeffreys

Houston hernia patch litigation

I’m going to be extra careful lifting heavy objects after learning about at least 20 suits filed recently in Houston’s federal district court. They allege that a hernia repair patch implanted within patients’ abdomens is deteriorating within the body and further injuring people recovering from hernias. The medical product under fire is the Kugel Hernia Patch, which according the product’s Web site is sold and distributed by Rhode Island-based Davol Inc., a subsidiary of New Jersey-based C.R. Bard Inc. Beginning in 2005, the FDA recalled several versions of the patch but not all of them, according to the FDA Web site. According to Davol’s Web site for the patch, the product minimizes “the pain and related recovery time for the patient” involved in hernia repair compared to “older tissue-to-tissue methods of hernia repair.” But more than 20 individual plaintiffs say that their patches broke as a result of intra-abdominal stress, resulting in perforated bowels, chronic intestinal fistulae (abnormal connections between intestines) and other nasty injuries as the broken parts of the patch traveled through their bodies, according to the suits. One such suit, filed on July 25 in U.S. District Court for the Southern District of Texas, is Wurtz-Bright v. Davol Inc., et al. Like other plaintiffs, Dorothy May Wurtz-Bright is an out-of-state resident, but she says that the federal court in Houston has jurisdiction because Davol and C.R. Bard have significant contacts with the Southern District.
-- Jonathan Fox

Honest Abe: Lincoln the lawyer

South Texas College of Law professor Mark E. Steiner has nabbed national attention with his book on Abraham Lincoln, published by Northern Illinois Press. The American Association of University Presses recently included Steiner’s “An Honest Calling: The Law Practice of Abraham Lincoln” on its list of “The Best of the Best of the University Presses: Books You Should Know About 2007.” Out of hundreds of books considered, the AAUP selected 23 for inclusion on the list. The Illinois Historical Society also presented Steiner a superior achievement award for the book, which explores Lincoln’s law practice using newly compiled papers. It must be a good read.
-- Mary Alice Robbins

Lawyer, farmer and subsidy recipient

Fort Worth solo Brad Ashburn has another career that's located far away from Cowtown. And it's his rural occupation as a farmer that landed him on the conservative Heritage Foundation's "Top 10 Urban Farmers," which ranks him eighth among "city slickers" who collected farm subsidies distributed  between 2003 and 2005. According to the list, Ashburn received $770,693 during that time period. Ashburn told the Fort Worth Star-Telegram that, although he lives in a big city, he's far from a city slicker and that he needs the subsidies to run the 2,000 acre farm in Yoakum County near the Texas-New Mexico border that produces cotton, peanuts and corn. Without the subsidies, farming wouldn't be a viable option, he says. And while they may not make the Heritage Foundation's subsidy list, I'm sure that Ashburn is not the only big city Texas lawyer who owns a farm. I've met plenty of lawyers who live in the city and run a farming or ranching business -- some of those farms and ranches have been in their families for generations.

-- John Council   

A taxing interpretation

In a 2-1 ruling on Thursday, July 26, the 1st Court of Appeals held in Houston Independent School District, et al. v. Old Farms Owners Association, et al. that Houston area taxing units are entitled to collect penalties and interest on delinquent 1997 taxes, even though the tax collector sent the taxpayer’s bill to an incorrect address. According to the dissenting opinion, the Harris County Appraisal District mistakenly provided the taxing entities an address that had been out of date for 11 years. Under the 1985 version of Texas Tax Code §33.04, the taxing entities were required to deliver a five-year notice of the delinquency. As noted in the dissent, however, the taxpayer did not receive either the tax notice or the delinquency notice. In 1999, the taxing units sued the taxpayer for the delinquent 1997 taxes but dismissed that suit. In 2002, after a new version of Tax Code §33.04 became effective, the taxing units sued the taxpayer again. Under the revised §33.04, failure to deliver the previously required five-year delinquency notice does not cancel penalties and interest on delinquent taxes. The 1st Court held that the taxpayer owes penalties and interest on those tardy 1997 taxes, because the taxing units showed that they mailed the tax bill to the most recent address on the HCAD’s tax rolls — even though it was the wrong address. The majority’s rationale taxes the brain.
-- Mary Alice Robbins

Akin Gump ponies up

Akin Gump Strauss Hauer & Feld, with 961 lawyers firmwide, jumped on the salary bandwagon by giving raises to its first- and second-year associates in Texas offices, moving to $160,000 and $170,000 respectively effective Aug. 1. The raises were announced on July 26. Dallas-based Akin Gump is following the market move launched by Houston-based Vinson & Elkins on July 17 when it announced a new salary scale calling for a $160,000 base pay for first-year associates and $170,000 for second-years in Texas. Presumably, it’s the deferred portion of V&E’s new salary scale for third- through eighth-year associates that’s giving pause to other firms.  On July 26, in an e-mail to Akin Gump’s 150 associates in Texas, firm Chairman Bruce McLean, a partner in Washington, D.C., wrote: “For first and second years, compensation will increase to $160,000 and $170,000, respectively. For subsequent years, we intend to be competitive in the market. We are in the process of determining the contours of the compensation structure for our other associate classes consistent with our Firm culture and the evolving market. We appreciate all that you do to make this a great Firm.” Kenneth Menges, the partner in charge of Akin Gump’s Dallas office, says, “We always, always said and followed through on that we will be competitive in the markets, the markets in which we operate.” Other BigTex firms that have moved to the $160,000 and $170,000 base salaries for first- and second-year associates include Houston firms Bracewell & Giuliani and Andrews Kurth, Dallas-based Thompson & Knight, and Houston- and Dallas-based Locke Liddell & Sapp.

-- Brenda Sapino Jeffreys

Get sober instead of imprisoned

Here's a novel idea for the Texas criminal justice system: Why don't we punish defendants and reform their behavior at the same time? That is what a pilot felony DWI program in Tarrant County is doing. By the time most DWI defendants are charged with a felony, they've usually had two prior DWI arrests. And depending on defendants' circumstances, they often choose jail time to dispose of their cases instead of probation, because they can't afford the probation fees. This program offers first-time felony DWI defendants a seven-year sentence, probated for four years and allows them to avoid prison time altogether if they agree to intensive probation and to attend an alcohol treatment program. That way they avoid a two- to 20-year prison sentence, hopefully get sober and never get a DWI again. But here's an even better idea that I thought up all on my own. Why not encourage the misdemeanor DWI defendants to get sober by offering the intensive supervision and alcohol treatment program as an alternative to high misdemeanor probation costs? Maybe that way, misdemeanor DWI defendants won't become felony DWI defendants.

--- John Council 

Pumped up trademark fight

FYI to bodybuilders (or their lawyers) who frequent the Web sites theroidstore.com and steroid.com: Read the labels on your pill bottles. In Samson Distributing Inc. v. Anabolic Research LLC, et al., filed July 23 in U.S. District Court for the Southern District of Texas, Florida-based Samson Distributing alleges that the two Web sites run by Anabolic Research sell three products that infringe on Samson Distributing’s trademarks and cause consumers to mistakenly believe that Samson Distributing is the source of products sold on theroidstore.com and steroid.com. Specifically, Samson Distributing claims that Anabolic Research is selling knockoffs of its products D-BOL, WINNI-V and DECA NOR 50. According to the suit, the knockoff products that infringe on Samson Distributing’s marks are D-ANABOL 25, WINN 50 and DECA 200. “As a result of this confusion, consumers are associating the Samson Marks with goods that do not have the quality of Plaintiff’s dietary and nutritional supplements,” the suit alleges. Samson is seeking an injunction against Anabolic Research as well as money damages for “irreparable harm to [Samson’s] reputation and goodwill.”
-- Jonathan Fox

Song spat

Here’s a blast from the past: Remember Archie Bell, leader of the soul group Archie Bell and the Drells? He hit the R&B and pop charts in the late 1960s with “Tighten Up” and “I Can’t Stop Dancing.” But Bell, a Houston resident, now contends someone is dancing off with some of his royalties. On July 20, Bell filed a breach of contract suit against Jeff Hubbard, doing business as Jeff Hubbard Productions, in Houston’s 269th District Court, seeking an estimated $200,000 in royalties that Bell alleges he is due. Looks like “There’s Gonna Be a Showdown” (the title of a 1969 album by the group) over this one.
--- Mary Alice Robbins

Debtor sues dunning dialers

Enhanced Recovery Corp. (ERC), a Florida debt-collection firm, might want to dial back the tactics allegedly employed by its debt collectors, if claims made in a suit filed July 20 in the U.S. District Court for the Eastern District of Texas are any indication of ERC’s behavior. One good first step is to stop threatening employers of debtors to “blow the phone line up with calls” when those employers have the temerity to complain about nonstop debt collection calls to the workplace. Two other ideas to avoid wrongful debt collection suits are not to call out an employee as a debtor to his employer and not to call a debtor after 10 p.m. In Schakosky v. Enhanced Recovery Corp., Donnie Schakosky of Tyler alleges that ERC engaged in all of those tactics. He's suing ERC for wrongful debt collection under federal and state laws, invasion of privacy and violations of the Texas Deceptive Trade Practices Act. According to the complaint, the suit comes after Schakosky became delinquent on his credit card debt to HSBC Card Services.

-- Jonathan Fox

Cycling for dollars

When the Gardere Gearheads come to play, they mean business — at least judging by the injury rate for the 153-member Gardere Wynne Sewell cycling team. During May’s Sam’s Club MS 150 ride from Frisco to Fort Worth, benefiting the Lone Star Chapter of the National Multiple Sclerosis Society, team member and Dallas partner Keith Novick suffered a bruised hip and compound elbow fracture requiring surgery after he got tangled in a six-bicycle pileup, and teammate and firm client Virginia Snodgrass tore her rotator cuff. In the end, it might have been worth it, though. Not only did the team raise more than $108,000 for the cause, but after only its second year of participation, the team was just honored as the veteran team with the most growth — more than doubling in size since fielding an inaugural 70-member team in 2006 — and for having the most improved fundraising. Still, who knew cycling was a contact sport?
— Kristine Hughes

A friendly firm split

A six-lawyer insurance defense group will leave El Paso-based Scott & Hulse by Sept. 1 to form a new litigation boutique. “It’s just the needs that we have in terms of staff, research tools, differ from the needs of, say, the tax lawyers, or the corporate lawyers and that’s all there is to it,” says Wayne Windle, one of the Scott & Hulse shareholders who plans to leave for the new firm. It will be called Windle, Hood, Alley, Norton, Brittain & Jay. W. David Bernard, chairman of Scott & Hulse, says it just became too difficult to maintain an insurance defense practice along with the rest of the firm’s offerings, which include business, transactional, labor and employment, and commercial litigation. “What we are acknowledging is the same forces that have affected many of the other firms in the state . . . so to a certain extent we have been bucking the trend, largely due to personal relationships,” Bernard says. Bernard says it’s no secret that insurance companies have been putting pressure on Texas firms for years to lower billing rates and to bid on work, and it’s difficult for general practice firms to keep overhead low enough to make the insurance defense practice profitable. “By necessity it has to be low overhead, high volume, limited use of paralegals [and] limited staff,” Bernard says. Windle says it’s true his group has different needs in staff and research tools, and he believes both firms will do better financially separately than together. He says the other shareholders leaving Scott & Hulse are Joseph Hood, Jeff Alley, Gary Norton, Eric Brittain and J.L. Jay. Windle declines to identify clients who may move to the new firm, but he says the group represents insurance companies and businesses. After the spinoff, Scott & Hulse will have 28 lawyers in El Paso, San Antonio and Los Cruces, N. M., Bernard says. Windle says the split is so amicable that the new firm may rent space in the same building as Scott & Hulse. In fact, Windle says, “This is the most cordial, friendliest separation of lawyers in the history of law firms.”
-- Brenda Sapino Jeffreys

Probate lawyer's criminal case put off, again

Yet another change to the unusual attempted-theft indictment of Dallas probate solo Edwin Olsen IV stopped a pretrial hearing on Tuesday concerning whether that charging instrument should be tossed out. Olsen's pretrial hearing has been reset, again, to Aug. 3. Last month, a similar hearing before Dallas County Criminal District Court No. 4 Judge John Creuzot came to a stop when a prosecutor announced that a grand jury had re-indicted Olsen to clear up some concerns Creuzot had with the way the charge read. That caused Olsen's defense attorney to have to refile a motion to quash the indictment. Olsen is charged with attempted theft of more than $200,000 by exercising control over the personal property of 86-year-old Mary Ellen Bendtsen with the intent to deprive Bendtsen's daughter Francis Giron of that property. Bendtsen, who owned a dilapidated mansion on Dallas' tony Swiss Avenue, had named Giron as her heir in a will. The indictment alleges that Olsen obtained the execution of a new will for Bendtsen without her effective consent, because at the time Bendtsen signed the document she had diminished capacity to make informed and rational choices about her property and estate. The charge is thought to be unprecedented in Texas because no one can remember a case in which a civil lawyer was charged with a felony in the course of representing a client. Olsen denies the charge. But during the recent hearing, prosecutor Donna Strittmatter told Creuzot she had amended the indictment to make it as  "clear and concise as possible." Still Creuzot had questions about the indictment. "At what point does the offense of attempted theft occur?" Creuzot asked Strittmatter. Strittmatter told Creuzot that the offense occurred when Olsen filed the will for probate. Olsen's lawyer, Larry Finstrom, says the amended indictment still has problems. Finstrom maintains that the dispute about Bendtsen's will is a matter for a probate court, not a criminal court. Finstrom will have to reassert his opposition to the amended indictment in a third motion to quash. But should this case go any further, it'll be a criminal case of first impression like no other --- the kind that will be taught in law school professional responsibility classes across Texas.

-- John Council

Hecht taking hits from watchdog group

The citizens’ group Texas Watch questions whether state Supreme Court Justice Nathan Hecht broke the law when he received a discount in Jackson Walker’s legal fees. The firm had represented Hecht in his successful effort to overturn the State Commission on Judicial Conduct’s 2006 public admonition of him and discounted its bill by an estimated $100,000, according to Texas Watch. However, Texas Watch isn’t sure what law Hecht might have violated by accepting the firm’s discount. The group filed a complaint against Hecht with the Public Integrity Unit of the Travis County District Attorney’s Office, alleging that Hecht may have violated Texas Penal Code §36.08(3), which prohibits a judge from accepting a gift from a party who the judge knows is likely to appear before him. The group also filed a complaint with the Texas Ethics Commission, alleging that Hecht may have violated various sections of the state’s Election Code when he received the discount from the firm and did not report it as an in-kind contribution. Lastly, the group filed a complaint with the judicial conduct commission, alleging that Hecht’s actions may have violated the State Code of Judicial Conduct. Hecht did not immediately return a telephone call seeking comment. Jackson Walker partner Chip Babcock of Houston, who was lead counsel for Hecht in his fight against the judicial conduct commission, says the firm considered 25 percent of its bill to Hecht to be pro bono work. Babcock also says there was certainly no intent to do anything wrong. This could take awhile to sort out.
-- Mary Alice Robbins

Security and speech in the streets

People in downtown Dallas may have noticed a stronger police presence as the Holy Land Foundation trial gets under way. Lt. Vincent Goldbeck of the Dallas Police Department says that the DPD has increased resources as a deterrent for anybody who wants to create a disturbance as a result of the HLF trial. "We don't want any violence," he says, noting that the police won't have a problem as long as everyone is peaceful. As if on cue, a group calling itself Hungry for Justice, a coalition of civil rights advocates and activists, held a press conference outside the courthouse during the lunch break. Demonstrators held banners that proclaimed, "Feeding hungry children is not a crime." One of the speakers at the press conference, Thomas Muhammad, asked, "Why is this courtroom hearing a case that deals with foreign powers?" and claimed that the trial was a waste of tax dollars.
-- Miriam Rozen

Code talkers?

In his opening statements in the trial of the Richardson-based Holy Land Foundation and seven men linked to HLF, First Assistant U.S. Attorney Jim Jacks made an intriguing promise: During the potentially four-month trial in Dallas, he would present evidence that defendants Ghassan Elashi and Shukri Abu Baker spoke in a code to conceal the true nature of their conversations — conversations that the government wiretapped. As of the lunch break today, the defense lawyers had not yet made their opening statements.
-- Miriam Rozen

Maybe, maybe not

Call it a brazen act of chutzpah, a free shot with little downside or just good politics, but newbie Democratic Judge Craig Smith of the 192nd District Court of Dallas County says he is “seriously considering” making a run for chief justice of the Texas Supreme Court in the 2008 election cycle. “I think the timing might be right for a Democrat to make a run for statewide office,” says Smith, who seems to waver somewhat on whether that Democrat should be him. Smith, who has garnered good reviews from Dallas lawyers during his short stint on the civil bench, would square off against Republican incumbent Chief Justice Wallace Jefferson, who ain’t no judicial slouch either. “I will be making an official announcement by early fall,” says Jefferson, “and I don’t think anyone will be surprised by what that is.” Smith says he got a taste for statewide politics when he testified during the last legislative session, yet he has “a couple of high school age kids” who aren’t interested in moving to Austin at this point in their social lives. He also is concerned about whether he could do the job voters just elected him to do while campaigning around the state. “I’m just a 6-month old judge and the newness of the job still makes it so enjoyable.” Then again, the downside to a run isn’t all that great: Smith won’t have to give up his bench and he can fundraise for future elections beyond this one. “People tell me it’s a free shot, but having gone through one campaign, I know there is no such thing as a free shot,” he says. Party affiliation and name identification aside, there is still the issue of money, which Smith has yet to begin to raise. He hasn’t even designated a treasurer, one of the first official steps toward candidacy. If Smith is supremely serious, he had better get cracking. According to a July 15 report with the Texas Ethics Commission, the Wallace B. Jefferson for Texas Supreme Court PAC has raised $17,500 for the six-month period ending June 30; it also lists total political contributions at just over $296,000. “I am not one to put things off and sooner or later I will have to pull the trigger,” Smith says. “I will make a decision by early September.”

-- Mark Donald

Former Anna Nicole lawyer moves to Thompson & Knight

Richard Zook, a lawyer who represented one-time Playboy model Anna Nicole Smith in a complicated court battle for money she claimed her late oilman husband wanted her to have, has left a small litigation boutique in Houston to join Thompson & Knight in Houston. Zook says he was recruited to Thompson & Knight by longtime friend Ricky Raven, who is the trial practice group leader for Thompson & Knight’s Houston office. Zook, who joined the firm once known as Cunningham, Darlow, Zook & Chapoton in 1999, moved over to Thompson & Knight in late June. Zook says he left his old firm, now known as Cunningham & Darlow, on amicable terms, but is happy to be working at a large firm because of its resources. “I didn’t think I would go back to a large law firm, but this firm had so many things that were great for me,” Zook says. “For my cases, it’s just wonderful to have more support and more lawyers.” Zook says he brought a number of pieces of commercial litigation to his new firm, including the high-profile suit Miguel Franco, M.C., et al. v. West Houston, G.P., which is pending before 61st District Judge John Donovan in Houston. In that suit, Zook represents a group of physicians who sued Houston-based Memorial Hermann Hospital System and others, bringing tortious interference and antitrust claims in connection with the closing of the Houston Town and Country Hospital, a small hospital in which they had invested. Interestingly, Houston lawyer Rusty Hardin of Rusty Hardin & Associates, who represented Anna Nicole Smith’s step-son, Pierce Marshall, in the probate court fight over the estate of Howard Marshall II, is also involved in hospital litigation. Hardin is one of the lawyers representing the hospital. Smith and Pierce Marshall are both now deceased.

-- Brenda Sapino Jeffreys

Predator suit

Is it possible to hold a third party responsible for a suicide? The sister of a Rockwall County assistant district attorney who took his life after allegedly getting caught in a "Dateline NBC"  "To Catch a Predator" sting coordinated by the Murphy Police Department is about to find out. The woman, Patricia Conradt, filed a federal suit against NBC in the Southern District of New York late Monday asking for $105 million. Conradt's brother, Louis "Bill" Conradt Jr., shot himself after NBC filmed police attempting to arrest the prosecutor at his home after he allegedly solicited sex online from an adult posing as a 13-year-old boy. The suit is buoyed by the fact that the Collin County District Attorney's Office has refused to prosecute many of the cases brought to them by the Murphy Police Department for various reasons. Still, trying to convince a jury that anyone other than the person who pulls the trigger is responsible for a suicide is a mighty tough task.

-- John Council

HLF jurors don't know who's an alternate

At the Holy Land Foundation trial in the courtroom of Chief Judge A. Joe Fish of the Northern District of Texas this week, 11 women and seven men will be sitting in the jurors' box. They won't know, however, until they go into deliberations — probably four months from now — whether they are serving as alternates or as participating members of the panel. The judge told the jurors that, given the anticipated length of the trial, he wants to ensure that all 18 of them pay attention to the proceedings as if they all expect to deliberate. Only the defense counsel, the prosecutors and the court know at this point who is an alternate and who is on the panel.
-- Miriam Rozen

Race and self-defense?

Whether the 5th U.S. Circuit Court of Appeals or the U.S. Supreme Court will grant Lonnie Earl Johnson a stay and keep him from a Tuesday date in the execution chamber remains to be seen. But Johnson has an interesting argument --- that Harris County prosecutors kept information from his trial attorneys that would have helped prove that he was defending himself in a racially motivated attack when he killed two teenagers in Tomball in 1990. Johnson shot Gunar Fulk and Leroy McCaffrey after the two high school friends gave him a ride. Johnson, who is black, told his lawyers that the two white teens attacked him and he grabbed a gun from one of the boys and shot them. A jury rejected Johnson's self-defense argument, convicting him of capital murder and sentencing him to die. Johnson's appellate lawyers argue that Harris County prosecutors kept documents from Johnson's trial team --- including offense reports detailing similar racially motivated attacks in Tomball --- that would have lent credence to Johnson's claims that he killed the two teens while fearing for his own life. Prosecutors deny that accusation saying they provided those documents to Johnson's lawyers. Johnson's argument is dramatic and probably deserves a hard look by a federal appeals court. Who knows, maybe he'll win. The Supreme Court has already stopped five executions in Texas over the past year.

-- John Council

Judge seeks sanctions against commission

A judge facing new allegations of misconduct by the State Commission on Judicial Conduct wants the commission sanctioned. Bryan’s 272nd District Judge Richard W.B. “Rick” Davis alleges in his verified answer to the judicial conduct commission’s allegations that the commission’s formal proceedings against him are, among other things, in retaliation for Davis exposing the commission’s unconstitutional practices after the commission publicly reprimanded him in 2002. Ever since 2002, Davis has lobbied the Legislature unsuccessfully to change the law applicable to the commission. Davis is trying a new tactic, however, filing as part of his answer a motion for sanctions against the commission. Davis also is seeking a jury trial if the commission recommends that he be removed from the bench. However, state law does not provide for jury trials in judicial disciplinary cases. This is a case to watch.
-- Mary Alice Robbins

Court snuffs out challenge to smoking ban

On Sept. 1, 2005, Austin joined Dallas and other cities nationwide by enacting a tough anti-smoking ordinance, which forbids lighting up in public places. A. Nicholas Alexander, a smoker fined under the ordinance, sought to challenge the constitutionality of the law in Austin Municipal Court. After that court rejected his argument, which was based on the Texas Constitution’s ex post facto clause, he appealed his case to Travis County Court-at-Law No. 1, which affirmed the conviction. That’s as far as he will get, according to Austin’s 3rd Court of Appeals. Because the fines assessed by the municipal court for violating the anti-smoking ordinance did not exceed $100, Texas Government Code §30.00027(a) does not grant A. Nicholas Alexander the right to appeal the fine to the 3rd Court of Appeals, even to challenge the constitutionality of the ordinance. In Alexander v. State, the court held that a person convicted in a municipal court of record and fined $100 or less cannot appeal a constitutional issue past the county court level.
-- Jonathan Fox

Hurry up and scrutinize me

On July 18, a dozen Texas residents seeking U.S. citizenship or lawful permanent residency filed an application for a writ of mandamus in the U.S. District Court for the Northern District of Texas to compel the government to conduct background checks on them. In Siraj Akhtar, et al. v. U.S. Department of Homeland Security, et al., they allege that the department has unreasonably delayed their otherwise completed citizenship or residency applications by not finishing their applications. The missing link, they say, is that the FBI must conduct mandatory background checks on them. The mandamus seekers — Siraj Akhtar, Aatif Nawaz, Saima Aatif, Ehad Abdel Rahman, Samir Mustafa Abu Own, Zia Uddin Hakim, Ziad Abdel-Latif Qadora, Jamal Hussain, Zainab Saber Abdelrahaman, Majd Alchweki, Mohammed J. Abbas and Adnan Abu-Own — have been waiting for three years to six years for the completion of the checks. The applicants' petition states that the Department of Homeland Security has indicated its ability to process similar applications speedily through a program called Dallas Office Rapid Adjustment (DORA), which processes applications in about 90 days. The applicants also claimed that Homeland Security can ask the FBI to “rush” background checks and turn them around in one or two days. The applicants also speculated that the backlog was due to the FBI withdrawing personnel from the background check process.
-- Jonathan Fox

Blast from the past

Sometimes catching up with an old client is not worth the time or effort. According to Dallas’ 5th Court of Appeals, attorney Diamond J. Pantaze did not have any contact with his client Anita Yudin for more than four years, but then on Nov. 22, 2004, he sent her a bill. A few days later, he sued her. The 5th Court’s July 17 opinion in Pantaze v. Yudin sets out the following facts: Yudin retained Pantaze in 1998 to handle a post-divorce action involving the sale of her marital home. Yudin paid Pantaze a $750 retainer. After the case was tried, the trial court awarded Yudin $78,339.68 and her former husband $83,538. On Nov. 17, 2000, Pantaze sent Yudin a letter enclosing a check for $78,339.68 representing her share of the proceeds from the sale, copies of an appellant's brief he had filed on her behalf, various reporter's records and other documents. That was the last she heard from Pantaze until the Nov. 22, 2004, bill and the suit. The court found that Pantaze did not present any evidence to contradict Yudin's statements that his representation was concluded and he was not authorized to perform any additional work after Nov. 17, 2000. Thus, the 5th Court concluded that the trial court did not err in finding the bulk of Pantaze’s suit barred by the statute of limitations.
-- Jonathan W. Fox

Pardon me?

In Washington D.C., politicians might as well have declared it "beat up Johnny Sutton week" for the intensive pummeling the U.S. attorney for the Western District of Texas took during both a Senate Judiciary hearing and on TV  news shows over the prosecution of two former U.S. Border Patrol agents. The agents, Jose Alonzo Compean and Ignacio Ramos, were each sentenced to more than 10 years in prison last year for shooting at a drug smuggler as he crossed the Texas border into Mexico. Conservatives howled, calling Sutton a litany of names for allowing two law enforcement officers to end up in the slammer. After the braying subsided, politicians jumped on the commutation and pardon bandwagon by writing letters to President George W. Bush and introducing legislation calling for Compean and Ramos to be freed. But good luck with that, Bush told a town hall meeting in Nashville on July 19. While Bush may not be that close to many U.S. attorneys --- seeing as his administration got rid of eight of them last year --- there is no federal prosecutor who is closer to Bush than Sutton. Sutton served as Bush's criminal justice policy adviser while Bush was governor of Texas, and Sutton was one of Bush's earliest federal appointees as president. "I know it's an emotional issue, but people need to look at the facts. These men were convicted by a jury of their peers after listening to the facts," Bush said, according to the Seattle Times. Bush noted that Sutton is a "dear friend" and that "he is a fair guy. He is an evenhanded guy." Say what you want about Bush, but he seems sincere in his assessment of Sutton. Here's to betting that he'll stand by his Texas friend --- kind of like he's doing with another lawyer-friend, U.S. Attorney General Alberto Gonzales.

-- John Council

Stern v. O’Quinn coming to Texas?

Plaintiffs lawyer John M. O’Quinn says he’s a Houstonian through and through, and, because of that, he filed a motion on July 17 asking a federal judge in Florida to dismiss a defamation suit filed against him there by Howard K. Stern, the longtime attorney and companion of former Playboy model and television personality Anna Nicole Smith. Stern filed the suit against O’Quinn in April in U.S. District Court in the Southern District of Florida following legal proceedings there after Smith’s sudden death in the Bahamas. In the complaint in Howard K. Stern v. John O’Quinn, Stern alleges that O’Quinn, an attorney for Smith’s mother, Virgie Arthur, repeatedly made false and defamatory public statements alleging Stern caused the death of Smith and her son, Daniel, for Stern’s own financial gain. Stern alleges O’Quinn made slanderous comments during televised interviews on Fox News, MSNBC and CNN. O’Quinn denies the allegations. In Tuesday’s motion to dismiss, O’Quinn seeks a dismissal on three grounds: a lack of personal jurisdiction in Florida, improper venue in Florida and Stern’s failure to state a claim. O’Quinn, of the O’Quinn Law Firm in Houston, alleges in the motion that he has no ties to Florida other than the fact he gained pro hac vice admission to represent Arthur’s interests in legal proceedings in Florida following her daughter’s death. O’Quinn also alleges in the 46-page motion that while he made the allegedly defamatory statements while “sitting in a sound booth in Florida” the alleged tort of defamation didn’t occur until they were transferred by satellite to New York, where FOX, CNN and MSNBC studios are located, so there is no basis for venue in Florida. Meanwhile, O’Quinn also alleges that Florida’s litigation privilege gives him “absolute immunity” for all of his statements to national news media while representing Arthur. “There is little doubt that all of the challenged statements were made in the course of judicial proceedings and were related to the litigation in question,” O’Quinn alleges. If O’Quinn is not successful in persuading U.S. District Judge William P. Dimitrouleas to dismiss the suit, O’Quinn wants the judge to transfer it to the Southern District of Texas based on the doctrine of forum non conveniens under §1404(a) or §1406(a) of Title 28 of the U.S. Code. O’Quinn also asks Dimitrouleas to dismiss the suit on the ground that none of the statements at issue are defamatory under §12(b)(6) of the Federal Rules of Civil Procedure. Stern, who lives in California, alleges in his complaint that O’Quinn had a “predetermined bias” against Stern at the time O’Quinn made the statements cited in the complaint. Stern states in the complaint that he did not murder Daniel Smith or Anna Nicole Smith and that both died accidentally. Stay tuned. Stern, cable television and the tabloid press might end up in Texas if the Florida judge transfers Stern v. O’Quinn to the Southern District of Texas.
-- Brenda Sapino Jeffreys

 

My fee is reasonable -- yours, on the other hand . . .

If a plaintiff’s attorney earns a higher fee in a case than his defense counterpart, is that an unreasonable fee? In quoting a defense attorney who testified on the reasonableness of an award of attorneys’ fee for a plaintiff, Houston’s 14th Court of Appeals raised the issue in a July 10 opinion that decided a probate matter. In Woody K. Lesikar, et al. v. Carolyn Ann Lesikar Moon, et al., Lesikar, the defendant, attacked the trial court’s award of $400,000 in attorneys’ fees for Moon, the plaintiff. The court wrote that Moon's attorney testified that he derived the $400,000 figure from a 40 percent contingency fee agreement. On appeal, however, Moon’s attorney also justified the $400,000 fee on the ground that it represented a 2,500 hours of work billed at $300 an hour ($750,000), minus an offset of $350,000. That was still too high for Lesikar, the defendant. One of Lesikar's trial attorneys, William Denman, who testified that $250 was a reasonable rate for Brazoria County probate lawyers, noted that he and Lesikar's other attorneys spent only 700 hours on this case. He also testified, according to the 14th Court, “that it is unusual to have plaintiff's counsel spend more hours on a case than defense counsel.” Lesikar’s attorneys’ fees were $153,000. After raising the issue with Denman’s provocative quote, the court ultimately decided the case on a different issue: Moon's failure to segregate attorneys' fees for victorious claims versus nonvictorious claims. The court remanded the case for a redetermination of attorneys’ fees.
-- Jonathan Fox

Bucks for Giuliani

Patrick Oxford, the managing partner of Bracewell & Giuliani, has personally contributed to name partner and former New York City mayor Rudolph Giuliani's presidential campaign in dollar figures that could finance the purchase of a reasonably comfortable automobile or at least a trip to Europe. According to reports filed by Giuliani with the Federal Election Commission, Oxford and his wife, Katie E. Oxford, personally contributed $23,400 to Giuliani's campaign over the past six months.

-- Miriam Rozen

Sutton goes before Senate Judiciary Committee

It couldn’t have been a fun summertime visit to the nation’s capital for Johnny Sutton, the U.S. attorney for the Western District of Texas. First he had to sit through a bi-partisan attack before the Senate Judiciary Committee over his handling of the prosecution of two U.S. Border Patrol agents who were convicted of shooting at an unarmed drug smuggler and sentenced to more than 10 years in prison. Then he was scheduled to appear on CNN’s "Lou Dobbs Tonight" for an ominous sounding segment called “Border Betrayal.” Another guest on that show  -- which airs today at 5 p.m. -- will be U.S. Sen. John Cornyn, R-Texas, who grilling Sutton earlier today. But Sutton held up well during the Senate hearing and defended himself and his office with fervor. When Cornyn asked Sutton during the hearing why former Border Patrol agents Jose Compean and Ignacios Ramos received prison sentences while the alleged drug dealer they shot at received immunity, Sutton was forceful in his answer: “The reason all this mess happened is because agents Compean and Ramos shot [at] an unarmed guy and covered it up,” Sutton told Cornyn. “There is no one to blame in this country but them.”

-- John Council

Crowded courtroom

More jurors than usual and more U.S. marshals than usual -- that's what courtroom visitors can expect to see at the trial involving the Holy Land Foundation, a Richardson-based charity that sent money it raised to individuals and groups in the West Bank and Gaza for what HLF says were humanitarian purposes and what federal prosecutors allege was assistance to the terrorist organization Hamas. Jury selection began Monday before Chief U.S. District Judge A. Joe Fish in United States v. Holy Land Foundation, et al. For those proceedings, four U.S. marshals were in the courtroom. Most criminal cases require only one. By the end of the week, the judge is expected to impanel 12 jurors and six alternates. Most criminal cases usually only have two alternates. But the HLF case is expected to last for at least four months, and apparently no one wants a juror shortage to make a retrial necessary.
-- Miriam Rozen

Weisbrod elected in Windy City

Dallas plaintiffs lawyer Les Weisbrod, a partner in Miller, Curtis & Weisbrod, was elected today to serve a one-year term as president-elect of the American Association for Justice. Weisbrod was elected during the group’s 61st annual convention, which is under way in Chicago through July 18. After he serves a year as president-elect – his term starts later this month – Weisbrod will become president of the 50,000-member group of plaintiffs lawyers. AAJ, based in Washington, D.C., was known until 2006 as the Association of Trial Lawyers of America.

-- Brenda Sapino Jeffreys

Attorney-client privilege nearly non-existent

Few in-house lawyers are confident the attorney-client privilege will hold up in situations when the federal government is investigating their companies, executives or employees. A whopping 90 percent of in-house counsel believe the attorney-client privilege, in the context of government investigation, is “either non-existent or severely damaged,” according to a recent survey conducted by the Association of Corporate Counsel (ACC) and Corpedia Inc., a risk assessment services company.  In 2005, only 74 percent of the in-house lawyers who responded to a similar survey reported that they had little faith in the attorney-client privilege. The 2007 Compliance Program and Risk Assessment Benchmarking Survey also reports that it has become routine for most companies – about 70 percent of survey respondents -- to conduct periodic risk assessments in an effort to prevent problems that could lead to a government investigation. The survey included responses from 458 in-house lawyers, with 45 percent of them working at public companies. Those in-house lawyers with little faith in the attorney-client privilege presumably were heartened on July 12 when two Republican U.S. representatives from Virginia introduced the Attorney-Client Privilege Protection Act of 2007, which is aimed at rolling back policies at the U.S. Department of Justice and at other federal agencies that put attorney-client privilege, work product and other employee legal protections in jeopardy. The House bill is a companion to a similar U.S. Senate bill introduced in January by U.S. Sen. Arlen Spector, R-Pa.

-- Brenda Sapino Jeffreys

Discipline roulette

Here's a fun game you can play from home: When a Texas lawyer is convicted and sentenced for a felony, check the State Bar of Texas' Web site to see if the attorney still has an active license. Usually, when a lawyer is convicted and sentenced for a felony, the State Bar will subject the attorney to compulsory discipline --- an automatic procedure that can result in a license suspension, depending on the crime. So I punched in the name of one Yali Huang, a Houston immigration lawyer who was sentenced to 51 months in prison on July 13 after she was convicted for forging immigration documents for clients and participating in a green card scam. According to a Houston Chronicle article, Senior U.S. District Judge David Hittner of Houston ordered Huang to notify the State Bar of her conviction in writing. But as of Monday morning, Huang was still listed as having an active bar card. Shouldn't a judge or the U.S. Attorney's Office take it upon themselves to notify the Bar as well?

-- John Council

Lunch-break snoozer cites disability, sues

Methodist Hospital of Dallas faces an allegation that it violated the Americans With Disabilities Act by terminating a worker who slept on the job. Lawrence M. Smith, a computer operator for the hospital, says that he has a perfectly good explanation for snoozing at work. Smith says that medication he took to control his hypertension made him sleepy, so he asked for and received permission from his supervisor to sleep during his lunch break and break periods. Nonetheless, Methodist allegedly videotaped him secretly during his lunch and break periods, then fired him for sleeping on the job. Smith says that has a disability and is suing Methodist for allegedly violating the ADA, as well as for intentional infliction of emotional distress, invasion of privacy, retaliation and slander.
-- Jonathan Fox

State seeks rehearing in DeLay

Travis County District Attorney Ronnie Earle hopes to change the mind of at least one judge on the Texas Court of Criminal Appeals. Earle’s office today filed a motion for rehearing in State v. DeLay and the related cases of DeLay associates Jim Ellis and John Colyandro. On June 27, the CCA held in a 5-4 decision that the Texas criminal conspiracy statute did not apply to the offense of making a corporate contribution to a candidate because that particular offense isn’t in the state’s Penal Code. According to Earle, the CCA’s ruling makes it legal to conspire to commit felony offenses as long as those crimes are outside the Penal Code. As Earle sees it that leaves law enforcement powerless to prevent certain felonies before they’re committed. However, Earle will have to persuade one of the CCA judges who ruled in DeLay’s favor last month to get a revised decision. That could be a tall order.
-- Mary Alice Robbins

In the HLF hot seat

When the prosecution’s case against the Richardson-based Holy Land Foundation for Relief and Development starts next week, plenty of onlookers should be there. At a meeting on July 8, Khalil Meek, interim president of the local Council on Arab-Islamic Relations, encouraged some 200 people to attend the hearing. But one reporter for The Dallas Morning News, Steve McGonigle, has unsuccessfully tried not to attend — at least not as a witness. Chief U.S. District Judge A. Joe Fish of the Northern District of Texas presides over the HLF trial. On June 13, he denied McGonigle's motion to quash the government's subpoena calling him to testify. The government wants McGonigle to testify about stories he wrote about HLF, which included references to confidential sources. Russell Coleman, the general counsel of Belo Corp., which owns the Morning News, won't say whether McGonigle's lawyers, who are paid by the company, will appeal that decision. But Coleman writes in an e-mail: "Journalists must be able to fulfill the critical role of reporting important news without being unnecessarily forced to become instruments of the criminal justice system. If a reporter is perceived to be a potential prosecution witness or an aid to the government, then sources might be inhibited from coming forward and, more importantly, journalists could be placed in dangerous situations."
-- Miriam Rozen

Lawyer’s TV show to debut

A Killeen lawyer is set to debut her new television show, “Insight with Mary Beth Harrell,” at 7:30 p.m. today on KNCT-TV.  Harrell, a criminal defense solo, developed the idea for the roundtable discussions with influential women in Killeen.  Her first show, “Keeping the Faith,” deals with how people see themselves and the practice of their faith.  It’s a 12-show series that also can be seen online at insighttexas.com.  Tune in.

-- Mary Alice Robbins

Remembering Lady Bird Johnson

Lady Bird Johnson, widow of President Lyndon B. Johnson and a champion of conservation, died today at her home in Austin of natural causes at the age of 94.  Johnson had been with her husband in Dallas when then-President John F. Kennedy was assassinated in November 1963 and stood by LBJ’s side as he took the oath of office to become the president.  Lady Bird made a name for herself as an advocate for beautifying public lands. In a statement, Texas Attorney General Greg Abbott says, "Lady Bird Johnson's lasting impact on the beauty and strength of this state is unmatched. In one of America's darkest hours, the First Lady served our country with grace and dignity. Lady Bird's beauty and what she stood for will far outlive our generation.”
-- Mary Alice Robbins 

Agents’ prosecution under scrutiny

The prosecution of two former U.S. Border Patrol agents from Texas now serving lengthy prison terms for wounding a suspected Mexican drug dealer has drawn congressional attention. The U.S. Senate Judiciary Committee has announced a July 17 hearing to examine the prosecution of Ignacio Ramos and Jose Compean, who’ve been in prison since January.  Activists have waged a campaign over the Internet to free Ramos and Compean and even have protested outside the office of Johnny Sutton, U.S. attorney for the Western District of Texas, who prosecuted the two men.  U.S. Sen. John Cornyn, R-Texas, who has pushed for the judiciary committee to take a look at the case, says in a written statement that he’ll have “some tough questions at this long overdue hearing.”  But Cornyn also says in the statement that the U.S. Department of Justice believes all the facts haven’t come out on the prosecution and welcomes an opportunity to explain its decisions.  On July 9 in a Tex Parte post titled "Steamed about Sutton," John Council said, "[A]lthough he would never admit it, Sutton is likely allowed to do his job free of political pressure because he won the trust of Bush years ago." Well, time will tell if Sutton's apparent autonomy holds up.

-- Mary Alice Robbins

The seamier side of fundraising

On July 6, the 1st Court of Appeals in Houston overturned the state jail felony theft conviction of Edward Christensen, a deputy with the Harris County Sheriff's Office who became president of the Harris County Deputies’ Organization, a union, in 1997. The decision provides a fascinating window into the world of law enforcement fundraising. The opinion sets out the following facts: To provide benefits for its members, the deputies’ organization raised funds partly through telemarketers. One telemarketer hired by the organization in 1998 was Ron Kowalsky, who used subcontractors including John Merritt, who had a telemarketing business, to solicit funds mentioning the organization's support for different programs, such as drug awareness and Toys for Tots. The organization, however, never had official permission to solicit donations for Toys for Tots, which is a program trademarked by the U.S. Marine Corps. Kowalsky kept a 75 percent to 80 percent cut of funds raised and remitted the rest to the deputies’ organization. Eventually, deputies donated $1,700 worth of bicycles to Toys for Tots. But bank records showed that between September and December 2000, the organization received $20,515 for the Toys for Tots program through 222 checks that had a notation that the donation was for "Toys for Tots." Eventually, the Harris County District Attorney's received complaints that Merritt’s telemarketers were falsely identifying themselves as peace officers when they made solicitation calls. Christensen denied knowledge that Kowalsky and his subcontractors were using Toys for Tots to solicit for the organization. Nonetheless, a jury convicted him of a state jail felony theft of property valued between $1,500 and $20,000. But the 1st Court overturned the conviction for lack of evidence. “The bottom line,” the court stated, “is that there is no evidence in the record that appellant either used or encouraged Kowalsky or anyone else to make misrepresentations to the complainants to obtain their money.”
-- Jonathan Fox

Friends and porn don't mix

Kristen Syvette Wimberly, 25, knew something was up when she started getting calls and e-mails from friends inquiring about her porn career. The trouble was, she didn't have a porn career, according to a suit she filed in Harris County state district court on June 26. As alleged in her suit, a former friend and fellow Kingwood High School classmate, Lara Madden, 25, took the name "Syvette Wimberly" and used it as a porn stage name with adult-video distributor Vivid Entertainment Group. Wimberly wants Madden and Vivid to stop using her name. Madden's lawyer Kent Schaffer told the Houston Chronicle that Madden is no longer in the porn video business and thought she had put that part of her life behind her before Wimberly filed her suit. And Schaffer has a simple solution to the litigation --- Madden will stop using Wimberly's name if that's what the plaintiff wants. Schaffer also says that if Wimberly prevails, Madden doesn't have any money to pay for damages. That sounds so reasonable. I bet Vivid --- one of the country's most profitable porn producers --- will propose the same resolution.

-- John Council

Punish those jury duty skippers!

Here's one issue in which I agree with Citizens Against Lawsuit Abuse --- it's a bad thing when people called for jury duty don't show up. The Corpus Christi Chapter of CALA took a poll recently in which more than 50 percent of the respondents agreed that it would be a good thing to increase the fines for the slackers who don't show up to do their civic duty at the courthouse --- or maybe even suspend their drivers' licenses for skipping out on a jury summons. But like most things that tort reform activists propose, the idea doesn't have a firm grasp on reality. There's a big reason why people don't show up for jury duty --- people move and addresses change. Call me crazy, but I think it's a little extreme to fine someone or take away a driver's license for failure to file a forwarding address.

-- John Council

John Hill Jr.’s funeral set

Funeral services for John Hill Jr., former Texas Supreme Court chief justice, are scheduled for 1 p.m. July 13 in St. Luke’s United Methodist Church in Houston, according to Ross Margraves Jr., managing shareholder of the Houston office of Winstead.  Hill, a shareholder in Winstead in Houston, died on July 9 at the age of 83.  Margraves, who is acting as the Hill family’s spokesman, says a reception will be held immediately following the funeral in St. Luke’s Fellowship Hall at the church.
-- Mary Alice Robbins

Porter & Hedges treasures its muggles … er … clients

Edwards Houston Marq*e 23 theater will begin showing the latest Harry Potter movie, “Harry Potter and the Order of the Phoenix,” at 11:59 p.m. tonight, with its last showings at 3 a.m. But if you’re lucky enough to have connections at Porter & Hedges, you can attend a pre-screening at 7 p.m. tonight — well before the wizarding hour. For the fifth time, the firm is renting a theater and giving away tickets to its clients, employees and their families. The firm also is footing the galleons, sickles and knutes to make concession items free for the asking. “It’s really just an appreciation night for our clients, where we can do something different that isn’t just taking them out to lunch,” marketing director Paul Grabowski says. But don’t get any ideas. I asked if I could hire the firm this afternoon and get into the theater tonight but was told all 412 tickets were like Leprechaun gold: gone in a few hours.

— Kristine Hughes

Short on funds

Cameron County had thought the start-up date for its two new district courts would be Jan. 1, 2009.  That date was included in H.B. 1342, which would have created the 444th District Court, and H.B. 1343, which would have created the 445th District Court.  But plans for the Cameron County courts went awry during the final days of the Texas Legislature’s recent session.  Both chambers of the Legislature passed S.B. 1951, which creates numerous new courts but which does not include language to delay until 2009 the start date for the 444th and 445th District Courts. The bill takes effect on Sept. 1, which county officials have determined is too soon for them to have the money to provide courtrooms and support staff for both new courts.  To remedy the situation, Cameron County Judge Carlos Cascos plans to ask Gov. Rick Perry to delay appointing at least one judge for those courts.  Even if Perry appointed judges for both courts, it’s doubtful the judges could go right to work.  Under the state’s appropriations bill for 2008-2009, the state cannot pay the judges’ salaries until the county antes up funding for the courtrooms and support services.  How many would-be judges are likely to want an appointment for a job for which they have no salary or courtroom?
-- Mary Alice Robbins

Justice, again

Once again, Texas government learns a lesson the hard way: Being cheap costs more money in the long run. The man teaching that lesson is, once again, Senior U.S. District Judge William Wayne Justice. This week, Justice approved a $1.8 billion settlement in which the state agreed to increase its share of Medicaid payments to improve health care for children. "I'm glad this litigation has been settled," Justice says. "I was 73 years of age when this case began. Now I'm 87." That's lightening quick justice from Justice. Back in 1973, Justice presided over Ruiz v. Estelle, the legendary suit that was responsible for cleaning up the horrific conditions inside the Texas prison system. Texas spent billions of dollars to construct new prisons, but problems still remained. Justice oversaw that case until its dismissal in 2003 --- a mere 30 years.

-- John Council

Three is a magic number

San Antonio plaintiffs attorney Mikal Watts may think he can throw his money around and mass media his way into the Democratic nomination for U.S. Senate to face one-term Republican incumbent U.S. Sen. John Cornyn. Certainly the $3.2 million Watts has donated and loaned to his own exploratory committee should give any prospective Democratic challengers (not to mention Cornyn) pause.  But it hasn’t been enough to scare off all Democrats. Rick Noriega, a Democrat state representative from Houston and Texas Army National Guard lieutenant colonel, took the Fourth of July to announce his intention to test the senatorial waters by forming an exploratory committee. And let’s not forget Dallas family law attorney Emil Reichstadt who, despite a bad ballot name, was the first to jump into the fray in April. A few political blogs have questioned whether Reichstadt was still in the running, but I spoke with him today and he seems committed to the cause. “Yes, I am still running and generally have four to five engagements a week,” says Reichstadt, a political novice. “I am looking forward to an active campaign and hopefully, I will be in the race to the finish.” Asked how he would manage that, Reichstadt, a former JAG officer, said he was “going with a grassroots campaign.” Without the positive name identification of say Noriega or the campaign-committed personal wealth of Watts, that would appear to be about the only campaign strategy left to him.   
-- Mark Donald

Cooking up a book

What’s cooking with Austin lawyer Marie Hejl? Hejl is not content with just doing a cooking show, “Cooking With Marie,” which she says now airs in about 80 markets around the nation and in New Zealand, Canada and Australia. Hejl has a new cookbook – “Cooking With Marie: On Any Occasion” – that will be published by Texas-based Bright Sky Press in October. Hejl’s older brother, Jim Hejl, who filmed her first cooking show when he was 13 and she was 10, served as photographer for the cookbook. The book will feature 87 recipes created by Marie Hejl or passed along to her by family members. 

-- Mary Alice Robbins

Steamed about Sutton

It's gotten so bad that some activists are starting to protest outside of the doors to the office of Johnny Sutton, the U.S. attorney for the Western District of Texas. Sutton has become the scourge of anti-immigration  groups and right-leaning politicians who are furious about his decision to prosecute two U.S. Border Patrol agents. The now former agents were convicted for shooting at --- and covering up --- an unarmed man who was crossing the border with drugs. Sutton may be one of the most interesting U.S. attorneys serving right now. A 2001 appointee of President George W. Bush, Sutton was on Bush's staff while he was Texas governor. A career prosecutor, Sutton has never made apologies for enforcing the law --- even when he doesn't agree with it. Sutton has not bowed to political pressure while doing what is often a controversial job. He says he just lets the facts of a case determine his decisions.  And although he would never admit it, Sutton is likely allowed to do his job free of political pressure because he won the trust of Bush years ago. That allows Sutton to do his job as U.S. attorney the traditional way --- with some degree of autonomy.  In li