Texas Lawyer Blog

Transplant recipients benefit from law school run

Before former Dallas Mayor Ron Kirk fires the starting pistol in Saturday’s Southern Methodist University Dedman School of Law Race Judicata 5K run, organizers will hand over $7,000 to the Southwest Transplant Foundation. Law school students are hosting the 8 a.m. event to increase awareness about organ donation and help recipients with financial needs after a classmate was diagnosed with a rare liver condition. The start and finish line will be the crosswalk outside the law school parking garage at the corner of Hillcrest and Daniel avenues.
— Kristine Hughes

Popped for pot

I love reading suits in which the government seeks forfeiture of inanimate objects in drug prosecutions, such as a pile of cash or a car (basically, the government will seize anything of value someone uses to commit a drug offense). The styles of the cases are quite humorous, such as United States of America vs. a 1995 green Dodge Neon. It doesn't seem like a fair fight. How can one Dodge Neon stand up to the might of the U.S. of A.? In United States of America v. 1986 Kenworth Tractor, VIN 1XKWDB9X8GK330319, filed Sept. 26 in U.S. District Court for the Southern District of Texas, the government sought forfeiture of a tractor trailer that it says Gary Ricketts -- who on May 9 pleaded guilty to one count of illegal distribution or possession with intent to distribute a controlled substance, according to the complaint -- used to tow a trailer containing bales full of marijuana past a border checkpoint. When I first read the complaint, I thought perhaps the government wanted to seize a real farming tractor and imagined someone putt-putting around a field on a tractor stuffed with drugs, but that's not the case.  So be on the lookout for a cut-rate Kenworth tractor trailer at the next government auction.
-- Jonathan Fox

Lots o' drama at the video store

The local video store could be rife with as much romance and drama as a prime-time soap opera. That's the impression given by Sills v. Blockbuster Inc., filed Sept. 25 in U.S. District Court for the Northern District of Texas. LaTonya Sills is suing Blockbuster for same-sex sexual harassment and defamation. Sills was a shift leader at a Blockbuster store in Coppell, according to the suit. In October 2006, Blockbuster transferred a new assistant store manager to the Coppell location "due to the ending of an intimate relationship between the assistant store manager and the store manager at another location," the suit alleges. The new assistant store manager was then promoted to manager, and she almost  immediately disclosed to Sills that she was a lesbian and "the gayest person ever," the suit alleges. But when Sills refused her advances, the suit claims, the new manager began disciplining Sills for various infractions. She also allegedly reduced Sills' hours to accommodate a new female shift leader with whom the manager began an intimate relationship, according to the suit. Eventually, Blockbuster fired Sills for "failure to perform a certain procedure," according to the suit.
-- Jonathan Fox

Trouble bonding

Perhaps not surprisingly, the controversy discussed in my Sept. 25 blog posting on Waller Independent School District and a bond election is not confined to a single federal civil rights suit. The Houston Chronicle reports that a state court judge has ruled in favor of "the district's lawsuit seeking quick approval of the plan." John Delaney, a retired state judge from Bryan, found that the district held the election in compliance with state law, according to the Chronicle. Nonetheless, the Texas attorney general will not release the bond proceeds to the school district until the federal civil rights is resolved, according to the Chronicle. Stay tuned.
-- Jonathan Fox

Newspaper co. strikes out as defamation plaintiff

The 8th Court of Appeals in El Paso on Sept. 20 handed a victory to Belo Corp., publisher of The Dallas Morning News, in a defamation case in which a Mexican newspaper company sued Belo over an article in the News that allegedly suggested that the newspaper El Diario "soft-peddled" its reporting of more than 400 murders of women in Juarez, Mexico, in return for government advertising. In Belo Corp. v. Publicaciones Paso Del Norte, SA de CV, the owner of El Diario took offense at a July 4, 2004, article by News writers Alfredo Corchado and Laurence Iliff that contrasted the views of Juarez's two major newspapers toward the killings. While Norte de Ciudad Juárez has theorized that "the rich, the powerful, the government, organ traffickers, or Satanists have perpetrated the murders . . . El Diario takes the position that the murders are domestic killings," the El Paso court states. The court noted that the papers' editorial policies toward the killings have dovetailed with a decline in Norte de Ciudad Juárez's circulation and growth in El Diario's circulation. The publisher of Norte, the court states, "blames the decline on government officials whom he says have withheld government advertising and threatened local vendors who sell his newspaper." As a result of the News article, El Diario sued, alleging that the article created a "false impression that El Diario soft-peddled news investigations regarding the Juarez murders in order to obtain advertising from the government." The trial court denied summary judgment to Belo and let the suit go forward. But the 8th Court reversed and rendered summary judgment for Belo, finding that El Diario's owner failed to present evidence that Belo "knew or strongly suspected that the publication as a whole could present a false and defamatory impression of events."
-- Jonathan Fox

Crime doesn't -- shouldn't? -- pay

Yesterday, on the National Day of Remembrance for Murder Victims, two U.S. representatives introduced a bill in the House to prevent convicted criminals from profiting from the sale of “murderabilia,” which are the personal items of criminals or crime artifacts. The House murderabilia bill is similar to one U.S. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, introduced in the Senate in May at the urging of Andy Kahan, director of the Houston Mayor’s Office Crime Victims Assistance Division. The Stop the Sale of Murderabilia to Protect the Dignity of Crime Victims Act of 2007, introduced as S. B. 1528, is aimed at protecting victims' rights by prohibiting criminals from using the U.S. Postal Service to help them sell personal items. Kahan says the Texas Legislature passed a murderabilia law in 2001, the Notoriety for Profit Law, but he wants a federal law, because many of the big murderabilia dealers operate outside of Texas. As Kahan explains it, murderabilia includes artwork, letters, personal possessions, clothing and –- yuck in our view --  hair and fingernail clippings. “It’s items owned or personally produced by convicted felons for profit. I’m of the opinion you shouldn’t be able to rob, rape and murder and make a buck off of it,” he says. Kahan says the inmates aren’t necessarily profiting by the sale of their personal items, but the dealers certainly are. In a press release announcing the House bill, Cornyn says crime victims suffer when criminals profit from the sale of their personal items. He said, “These murderabilia sales slow the healing process, prevent the closure that crime victims deserve and make them suffer yet again.”
-- Brenda Sapino Jeffreys

Bury bonds?

Waller Independent School District's plan to spend $49,290,000 in bond proceeds discriminates against the district's African-American students and against voters, a suit alleges. In Jackson, et al. v. Waller Independent School District (WISD), filed Sept. 24 in U.S. District Court for the Southern District of Texas, parent Elaine Jackson alleges that WISD, partly located in the city of Prairie View, discriminated against the district's African-American students and against voters by scheduling its most recent bond election on May 12, when college students at primarily African-American Prairie View A&M University were on summer vacation. Jackson believes that Prairie View students would have defeated the bond package. In 1978, the U.S. Department of Justice objected to a similar practice of holding bond elections during Prairie View's summer break, Jackson alleges. Jackson also alleges that district officials plan to spend "more than 99 percent of the bond's funds . . . on buildings and improvements in predominately Anglo communities in Waller ISD, but less than one-half of one percent of the bond was to be spent on the school that serves the predominately African-American community in Prairie View." For example, the suit alleges that WISD allocated $17 million toward a new football stadium but only $230,000 for Jones Elementary, the only public school located in Prairie View that Jackson says is in "far worse condition than the buildings elsewhere in Waller ISD." The suit in part seeks an injunction halting WISD from selling the bonds or "inequitably allocating their proceeds."
-- Jonathan Fox

Could real-time transcripts be far behind?

Tired of not knowing whether to believe those second- and third-hand accounts of courtroom gaffes? Don't worry, now lawyers can turn to old reliable PACER (the Public Access to Court Electronic Records database, for those still practicing law with fountain pen in hand) to get a transcript of proceedings. On Sept. 18, the Judicial Conference of the United States voted to make transcripts of federal district and bankruptcy court proceedings available online through PACER. Not surprisingly, there will be a time lag. Only after three months, or 90 days from when the court reporter delivers the transcripts to the clerk, will the documents will be available online. But for the right courthouse fireworks, such an accurate recounting will be worth the wait.
-- Miriam Rozen

Lethal injection off the table?

The U.S. Supreme Court just accepted what will likely be the most important death penalty decision of the decade. It will decide whether lethal injection is cruel and unusual punishment, based on an appeal of a consolidated death penalty case from Kentucky. Thirty seven states use lethal injection to put prisoners to death --- the most famous of them our home state where more than 400 people are currently on death row.  There are other states that offer the gas chamber or --- believe it or not --- hanging as ways to put inmates to death, but it's usually the inmates' choice as to whether they want those alternatives over lethal injection (neither of which sound very humane to me). The court could stray into a debate over whether not just lethal injection but the death penalty as a whole is cruel and unusual, because lethal injection is the most common method to administer the death penalty in the U.S.  And I'm betting the conservatives on the court will carry the day on this case, preserving the ultimate punishment and our country's long standing relationship with the practice. Justice Anthony Kennedy may take the place of Sandra Day O'Connor as a swing vote on this case. In recent years, the high court has outlawed the execution of juveniles and the mentally retarded --- sympathetic inmates for sure --- on the power of O'Connor's vote. But I doubt Kennedy is going want to spare Ralph Baze, who killed a couple of police officers, or Thomas Clyde Bowling Jr., who killed a couple and then shot their 2-year-old-son. Baze and Bowling, who the inmates who are bringing this issue to the high court, are the reasons why most states have the death penalty in the first place.
-- John Council 

Pregnant vet tech sues

The Equal Employment Opportunity Commission is suing Aggieland Animal Health Clinic PC of College Station for alleged pregnancy discrimination. EEOC v. Aggieland Animal Health Clinic PC, filed Sept. 21 in U.S. District Court for the Southern District of Texas, alleges that the co-owners of the "clinic, hospital and pet resort" scaled back veterinary technician Tesia Nelson's job duties and hours after she disclosed her pregnancy in 2006. The clinic "began modifying Ms. Nelson's job duties to eliminate exposure to certain aspects of the veterinary practice despite the fact that Ms. Nelson's doctors had not placed her on any workplace restrictions and she had not requested any changes in her assignments or duties," the suit alleges. "Defendant's actions made Ms. Nelson's working conditions so intolerable that she felt compelled to resign."  I would be interested in learning if the clinic's alleged reassignment of Nelson was due to fears of toxoplasmosis, an infection caused by a cat parasite that can result in miscarriage (I have a relative with three cats who let her husband take over litter-box-cleaning duties when she became pregnant). The Center for Disease Control and Prevention's Web site warns pregnant women to not change cats' litter boxes, not take in new cats that might have been outdoor cats or fed raw meat, and to avoid adopting or handling stray cats.  I wonder whether the EEOC is testing the limits of the Pregnancy Discrimination Act. In 1991, the U.S. Supreme Court ruled in UAW v. Johnson Controls that an employer could not refuse to employ women of childbearing age because of potential hazards to a fetus that could result from exposure to dangerous substances in the workplace. That case involved nonpregnant women at a battery-making plant where workers were exposed to high levels of lead.
-- Jonathan Fox

Habeas hopes dashed

Maybe this doesn’t bother some of you as much as it does me, but I had high hopes that the U.S. Senate on Sept. 19 would pass legislation that would overturn the current ban on habeas corpus petitions for Guantánamo Bay detainees. But no, the Senate fell four votes short of the 60 it needed to cut off debate and bring to a vote an amendment to the National Defense Authorization Act of 2008, which would have rescinded those portions of the Military Commissions Act of 2006 that denied detainees the right to challenge the legality of their seemingly never-ending Guantánamo Bay detentions. That’s a mouthful, but the result means that a Gitmo detainee can only contest his continued confinement through a due process-deprived hearing by an administrative review board, which annually determines whether the detainee still poses a threat to the United States or has intelligence value to this country. Certainly there remain numerous bad guys among the detainees. But there are others whose threat or intelligence value has been severely compromised by being held without social contact on an isolated island for more than five years.  To continue to refuse them the right to contest their indefinite detentions through habeas relief compounds the tragedy to them and the insult to our legal system.
-- Mark Donald

A dog case

The jury questionnaires are all laid out on the benches of Dallas County Criminal District Court No. 7 on this Monday morning. Pretty soon, 12 jurors will be treated to quite a show --- one that includes one of Texas’ toughest prosecutors, one of the city’s more controversial criminal-defense lawyers and a courtroom potentially full of activists. What’s the fuss about? Believe it or not, it’s a dog case -- literally. DeShann Brown is being tried on a felony animal cruelty charge for allegedly setting a pit-bull puppy on fire. The puppy, who was later named “Mercy,” died 10 days after she was rescued and taken to Operation Kindness. Terri Moore, Dallas County’s first assistant district attorney, will represent the state in the case --- her first jury trial since joining the office in January. Moore is known as a brutal cross-examiner who takes nothing off the lawyer sitting at the defense table. That last bit will be interesting as she faces Dan Wyde, a former Dallas county court judge, who is now one of the Dallas criminal-defense bar's more animated litigators. Wyde has made the news over some of his more controversial tactics, including an attempt to depose an alleged rape victim in a civil proceeding on the eve of a client’s criminal trial. The trial should be packed with anti-animal cruelty activists. Operation Kindness, which held a memorial for Mercy that 1,500 people attended, even has a Web page devoted to the case. It reminds people attending the case to remember not to bring “cameras, lighters, Mace and nail clippers” to the courthouse and to wear jackets or sweaters over “Mercy” T-shirts as to not influence the jury.
-- John Council

Big bucks? Not so much.

OK, I’ll be the first to say it. My beloved employer may have encouraged a starry-eyed student or two to apply to law school. With all of the articles we’ve published about firms jacking up first-year associates salaries to $160,000 a year, I thought about applying to law school myself. But you know what? There is no way in hell I’d graduate in the top 10 percent of any Texas law school --- which is a requirement to work at Big Bucks Law Firm L.L.P. And then I’d be another one of 70,000 Texas lawyers with $120,000 in law school debt, struggling to find clients in a legal market that’s been hammered by tort reform. The Wall Street Journal has a front page article about the legal market today that is news to no Texas lawyer -- it’s tough out there. And they interviewed Matthew Fox Curl, a 2004 graduate of the University of Houston Law Center, who made a whopping $32,000 in his first year as a solo personal injury lawyer and is thinking about moving back into his parents' house. “I didn't think three years out I'd be uninsured, thinking it's a great day when a crackhead brings me $500,” Curl told the Journal. Here’s a big hug from me to you, Matthew.
-- John Council

Esquire turns scribe

Texas native James Rhodes took up writing after he retired from his trial law practice in 1992. But Rhodes, a University of Texas School of Law graduate who practiced chiefly in Anchorage, Alaska, says that finding a publisher for his first novel proved to be more difficult than raising the Titanic.  “I had almost put the idea of being a published writer on a dusty shelf in the cellar of my mind,” says Rhodes, a resident of Dripping Springs in the Texas Hill Country.  Rhodes says he finally learned about iUniverse.com, a print-on-demand publishing company that published his novel, “Deliverance of the Innocent.”   Rhodes says the book, which was released in August, tells the story of a young woman who finds a way to get revenge against three drug-crazed thugs who raped and seriously injured her and murdered her family.  The lawyer-turned-novelist writes under the pen name Dusty Rhodes.  That’s an appropriate name for a Texas writer.
-- Mary Alice Robbins

We don't need no stinkin' recusal

The Texas Supreme Court today denied a motion seeking to recuse four justices from hearing a mandamus in a wrongful-death case -- a motion that claimed the justices could not be impartial. The plaintiffs in the underlying suit filed a motion Sept. 12 seeking to recuse Chief Justice Wallace Jefferson and Justices Dale Wainwright, Scott Brister and Nathan Hecht in In Re: Columbia Medical Center of Las Colinas, Subsidiary L.P., et al. The plaintiffs, alleging the justices cannot be impartial, cited a University of Texas School of Law professor’s study that found defendants won 87 percent of tort cases the Supreme Court decided by opinion in calendar years 2004 and 2005, and those justices served on the court during that period. The plaintiffs seek to uphold a Dallas County trial judge’s ruling granting them a new trial in Wendy Creech, et al. v. Columbia Medical Center of Las Colinas Inc., et al. Oral arguments on the mandamus petition are set for Sept. 27. But in an order issued today, the Supreme Court denied the motion to recuse “in accordance with Tex. R. App. P. 16.3(b).” According to the Texas Rules of Appellate Procedure, effective in January 2007, that rule calls for a challenged justice to recuse himself from the case or certify it to the entire court to decide the motion en banc. Hecht did that on Sept. 12, when he notified Jefferson by letter that he declined to recuse himself and certified the motion to the full court for decision. Osler McCarthy, the court’s staff attorney for public information, says the order today was decided by the justices not at issue in the motion to recuse. Ben C. Martin, a plaintiffs lawyer at Law Offices of Ben C. Martin of Dallas who represents the Creech family in the appeal, could not immediately be reached for comment. Neither could R. Brent Cooper, a senior shareholder in Cooper & Scully in Dallas, who represents Columbia Medical in the mandamus. But it looks like the full court will hear oral arguments on the mandamus next week. 
-- Brenda Sapino Jeffreys

Cause of AAAction

The American Automobile Association (AAA), the well-known provider of emergency automobile aid and other services, is suing a locksmith who uses the trade name AAA Lockout Specialist for trademark infringement and other claims. In American Automobile Association v. Montoya, filed Sept. 20 in U.S. District Court for the Northern District of Texas, AAA alleges that Montoya used AAA's trademarks in a manner "likely to confuse and mislead consumers into believing that the services offered by Defendant are approved, provided, endorsed, or rated by AAA, which they are not." A check of Montoya's Web site shows that he is not using AAA's distinctive logo but simply using the name of his business, AAA Lockout Specialist. Names with capital As in their titles are common, because they apparently help businesses get better placement in the telephone book. A database search on whitepages.com revealed a large number of such businesses in the Dallas area. If the American Automobile Association, based in Heathrow, Fla., is going to sue every business in the country with AAA in its name, it sure has its work cut out for it.
-- Jonathan Fox

Insert check into envelope. Affix stamp. Mail. Not difficult.

Lawyers represent clients in all sorts of business dealings, but some lawyers apparently don’t tend to their own business.  As of Sept. 1, the State Bar of Texas had suspended the law licenses of 1,489 lawyers for failing to pay dues and also suspended the licenses of 1,036 lawyers for failing to pay the state’s occupation tax, according to State Bar statistics. State Bar spokeswoman Kelley Jones King says the Bar suspended 546 of those lawyers for not paying dues and the tax.  On the bright side, the Bar’s statistics show that the number of suspensions for either dues or the tax has declined.  In 2005, there were 2,.497 dues suspensions and 2,057 tax suspensions, but those numbers had decreased to 1,517 for dues and 1,090 for the tax in 2006.  King says the Bar sent 90,941 dues statements and 71,805 tax statements on May 1, and both were due on June 1.  The lawyers tardy in making those payments need to get their act together.
-- Mary Alice Robbins 

Re: Creuzot-town -- my bad

In a Sept. 18 blog posting entitled “Creuzot-town,” I wrote that veteran Republican Judge John Creuzot of Dallas County Criminal District Court No. 4 announced his candidacy for re-election as a Democrat in a Sept. 20 press conference. Unfortunately for me, the press conference is being held today, two days after my post. The press release announcing his press conference was dated Sept. 14, and I wrongly assumed the press conference had already occurred. Sorry.

--Mark Donald

[Insert anguished cry of "Freebird" here]

A class action suit is targeting a popular Texas-based restaurant chain that specializes in customizable burritos. In Poku v. Freebirds LP a/k/a Freebirds World Burrito, filed Sept. 17 in U.S. District Court for the Western District of Texas, Michael Poku alleges that Freebirds violated the Fair and Accurate Transactions Act, 15 U.S.C. §1681c(g), which forbids businesses from printing on receipts more than the last five digits of a credit or debit card number or a card's expiration date. Who knew that this law existed? On behalf of a class of burrito patrons, Poku seeks "statutory damages, punitive damages, costs and attorneys fees," plus a permanent injunction to force Freebirds to update its allegedly faulty receipt practices. Poku's suit does not say which of Freebirds' 19 Texas locations gave him a bum receipt.
-- Jonathan Fox

Raises for in-housers

Most of the buzz around lawyer compensation has focused lately on associate salaries, with major markets such as Texas moving to a $160,000 starting salary for first-year associates. But in-house lawyers haven’t done too badly either. According to the 2007 Altman Weil Law Department Compensation Benchmarking Survey, made public Tuesday, total cash compensation for in-house lawyers improved in 2007. The survey of 343 multi-lawyer and 72 single-lawyer legal departments found that in-house lawyers working in law department management got raises ranging between 8 and 14 percent as of March 1, 2007, compared to March 1, 2006, while nonmanagement in-house lawyers received raises ranging from 4.5 to 23 percent. Chief legal officer salaries improved to a median of $300,000, up 5.8 percent, boosted by a 43 percent increase in bonus to $157,400.  Division general counsel brought home 13.7 percent more in total compensation in 2007, moving to a median of $232,000 in salary plus $104,600 in bonus. For managing attorneys, total compensation improved by 8.2 percent to a median of $179,000 in salary and a $50,200 bonus. The salaries of deputy chief legal officers declined by 1.7 percent to $215,000, but their total cash compensation improved by 9.6 percent when considering a $84,000 median bonus. On the nonmanagement side, high-level specialists earned 5.1 percent more in total compensation, moving to a median of $168,000 in salary plus a $44,000 bonus in 2007. In-house lawyers with eight or more years of experience earned 4.5 percent more in total compensation, attorneys with four or more years of experience earned 11.2 percent more, and attorneys with at least one year of experience got 23 percent more in 2007, compared to 2006. Recent graduates earned 10.8 percent more in 2007, with a median salary of $70,600 plus $4,000 in bonus money. According to the survey, lawyers working in large legal departments generally made more money. Chief legal officers in departments with more than 25 lawyers earned $645,000, or 56 percent than the national median in total cash compensation.  Total compensation for chief legal officers at one-lawyer departments was $201,500, just a bit more than half of the national median. However, when it comes to nonmanagement in-house lawyers, practice specialty makes a difference. For instance, securities lawyers make 21.9 percent more than the national median in total cash compensation. The benchmarking survey contains information submitted by 343 law departments that employ 8,148 lawyers, and 72 additional one-lawyer departments.
-- Brenda Sapino Jeffreys

Don't mess with Texas women

The construction industry is one of the U.S. economy's last bastions of male domination. Now one Texas woman and former site superintendent is suing her employer for unequal pay, sexual harassment and other violations in a suit that reads like the movie "North Country," which told the story of pervasive sexual harassment in a Minnesota mine. In Rutter v. Kelley & Picerne Inc., et al., filed Sept. 17 in U.S. District Court for the Southern District of Texas, Wanda Z. Rutter alleges that Picerne Development Corp. of Florida paid her almost $20,000 less than its male site superintendents, provided fewer resources to her job sites than to ones managed by men, and skimped on her bonuses and "down time" between jobs. When she complained about the alleged disparities, Picerne allegedly transferred her to a Florida job site under the supervision of a man who "had a history of sexual discrimination and would likely make unwanted sexual advances toward her." Rutter alleges that in Florida, the man lived up to his alleged reputation by making numerous comments about her body, demanding that she meet him after work for drinks, professing his sexual desire for her, harassing her with unwanted phone calls and attempting to get her to accompany him on trips to foreign job sites. When Rutter complained, Picerne allegedly did nothing, but the man allegedly retaliated by trying to get her fired and "sexually demean[ing] her in front of subordinates." As a result, Rutter says that she was constructively discharged from her job.
-- Jonathan Fox

Settlements reached in BP explosion trial

Two weeks into the first civil trial stemming from the deadly explosion at the BP Texas City refinery, the plaintiffs and BP negotiated settlements, ending the trial that could have lasted six to eight weeks.  Plaintiffs lawyer Brent Coon, of Brent Coon & Associates in Beaumont, and BP spokesman Neal Chapman say terms of the settlements, finalized on the night of Sept. 17, are confidential.  The trial of one group of plaintiffs' claims in Miguel Arenazas, et al., v. BP Amoco Chemical Co., began Sept. 4 in 212th District Judge Susan Criss’ court in Galveston.  Suits filed by the plaintiffs in the BP litigation have been consolidated in Arenazas in Criss’s court and are scheduled for trial in several groups over the coming months.  Coon says the settlements are fair: “The amounts were fair amounts for what these people went through,” he says, noting that both sides made recent concessions during settlement talks that have been ongoing since the trial began.  The four plaintiffs were contractors at the refinery in March 2005 and alleged they were injured in the blast.  The explosion killed 15 people.  Chapman says London-based BP, which has set aside $1.6 billion to pay claims, has settled with more than 1,600 individuals, and about 1,200 claims are outstanding.  Coon, who leads the plaintiffs’ steering team, says BP has settled with about 200 of his clients, and fewer than a dozen of his firm’s clients have outstanding claims against BP.  The next trial setting is in October, but Chapman says Criss set a scheduling conference for Sept. 24.  Not a single BP suit filed over the explosion has gone to a jury verdict.  In November 2006, plaintiff Eva Rowe, whose parents were among the 15 killed in the explosion, settled with BP for a confidential amount, averting a trial in Criss’ court.  Rowe’s case received a lot of press coverage, because BP agreed as part of the settlement to donate at least $32 million to various charities and to industrial safety training programs.
-- Brenda Sapino Jeffreys

Mark your calendars and fire up your browsers

Expect Chief U.S. District Judge A. Joe Fish, who is presiding over the Holy Land Foundation trial in Dallas, to read jurors their instructions for deliberations Wednesday afternoon or possibly as late as Thursday morning. First, the defense lawyers are expected to finish up their closings on Wednesday morning. Then the prosecutors, as is customary in criminal cases, will get two hours for their rebuttal. Those curious about the content of the voluminous documents, audiotapes and videotapes referred to and played at the lengthy trial can click on the court’s Web site and browse -- an interesting resource for those following the trial and anyone with interest in the Middle East conflict.
-- Miriam Rozen

Explosive opinion

You know an opinion is going to be good when it starts out this way: "Some people enjoy collecting baseball cards or rare coins. Dr. Allen Zarnow enjoyed collecting weapons and explosives." And so goes Zarnow v. City of Wichita Falls, a 5th U.S. Circuit Court of Appeals qualified-immunity decision involving a suit the good doctor filed against the city of Wichita Falls and some of its police officers after they took a bunch of his guns and ammo, returned most of them, but lost some of them, he alleged. Some of the weapons were seized in 1999, after employees in his clinic became alarmed when Zarnow went on vacation and they discovered "a gun, magazine, box of shells, .50 caliber armor-piercing ammunition, blasting caps, and fuses" in Zarnow's office desk. The staff called police and told them in addition to being a doctor that Zarnow was an "gun expert and salesman" who had talked about "purchasing a rocket launcher and often launched rockets and blew up stumps on his land in Oklahoma." The police seized rifles, revolvers and machine guns at his office and home. Zarnow was subsequently no billed by a Wichita County grand jury (likely on weapons charges, but the opinion doesn't say), and the police returned most of his guns. But some of them were "lost or unaccounted" for, according to the opinion. He sued the city and individual police officers for damages associated with losing his guns and violating his civil rights. A district court threw out much of Zarnow's case, except his illegal search and seizure claims against the city and the police officers. The city and the police officers asserted qualified immunity against the claims, which the district court denied. The city and the police officers appealed. The 5th Circuit ruled that it did not have the jurisdiction to consider the city's appeal but reversed the district court's denial of qualified immunity for the police officers. It's a small victory for Zarnow --- one he won't be able to enjoy. He died. His wife is now pursuing the case, according to the opinion.
-- John Council

Going to bat for his clients

Dallas lawyer Stephen Kennedy is a big baseball fan who has coached Little League teams for two sons. He’s also a lawyer representing four teams in the Texas Collegiate Baseball League -- a wood bat, summer league for college baseball players based in Fort Worth -- who are embroiled in a dispute with the league and its owners. Kennedy, of counsel at Sessions Lambert Selwyn, represents the Denton Outlaws, the Duncanville Deputies, the Colleyville Lonestars and the Wichita Falls Roughnecks, in a federal court suit filed on Sept. 14 against the league and its owners. In Jim Leslie, et al. v. Texas Collegiate Baseball League, Ltd., the plaintiffs seek a declaratory judgment that they have not violated the Sherman Act, §15 of the United States Code; that they have the right to use artwork and trademarks created by their teams; that they properly terminated their agreements with the TCBL, and that they didn’t breach any agreements with the TCBL. That suit was filed in U.S. District Court for the Northern District of Texas in response to a suit the TCBL filed in August in state district court in Tarrant County against the four teams Kennedy represents, plus the Coppell Copperheads, the Mineral Wells Steam and the Weatherford Wranglers.  In Texas Collegiate Baseball League Ltd. v. Jim Leslie, et al., the league alleges the seven teams breached a contract by attempting to withdraw from the league “absent significant changes in league ownership and operations.” In the petition, the league also seeks a temporary restraining order to prohibit the defendants from forming or participating in another college baseball summer league “or from otherwise absconding with the TCBL Concept and league.”  In the petition, the TCBL alleges the teams and their principals have banded together to engage in an illegal group boycott in violation of §15.05 of the Texas Business & Commerce Code. An attorney for the TCBL, Jeffrey Wolf, a founder of Wolf+Law in Southlake, refers questions to Gerald Haddock, the chairman and chief executive officer of the league. Haddock could not immediately be reached for comment.
-- Brenda Sapino Jeffreys

Prison snacks

Any good criminal-defense lawyer can keep a client out of prison. But when prison time is an inevitability, the great criminal-defense attorney can also provide prison survival advice. Sure, how to avoid getting stabbed is at the top of the advice checklist. But how does the full service lawyer instruct a prison-bound client on how make delicious snacks in the joint? That's where "The Echo" --- the Texas Department of Criminal Justice's prisoner-published newspaper --- comes in. Each month, the newspaper usually publishes a recipe made solely from items prisoners can purchase from a unit commissary. And because commissary groceries are limited, prisoners have to get creative when they cook their culinary masterpieces. Take this month's recipe for "Rippin' Good Salsa" submitted by "Da Bonehead" in the Estelle Unit. The recipe is as follows: 1 bottle of Spicy V8; 2 bags of hot fries -- finely crushed; 3 packs jalapenos -- medium chopped; 1 hot pickle -- finely chopped; 1/4 bottle or more habanero sauce; salt to fine tune. And there are further instructions from "Da Bonehead": "Mix all the ingredients in a spread bowl. Grab the tortilla chips. Hit the day room and discover homies you never knew about!"

-- John Council    

Creuzot-town

In the scene-stealing climax of 1974’s “Chinatown,” one of my favorite noir-ish-flicks of the past well, ever, private dick Jake Gittes (Jack Nicholson) tries to unravel the riddle of the film by literally slapping the hell out of Evelyn Mulwray (Faye Dunaway) in an attempt to get her to fess up to her knowledge about a young woman who Mulwray seems to be protecting or paying off. "She's my daughter [Gittes slaps her] . . . my sister [Gittes slaps her again]. . . . She's my daughter [slap] . . . my sister [slap] . . . my daughter [slap]. She's my sister and my daughter!" Well, Judge John Creuzot of Dallas County Criminal District Court No 4 may have felt similar slaps, from a political perspective, that is, as he has gone about his 16-year judicial career.  “I’m a Democrat [slapped by Dallas County Republican judicial rout of 1992]. . . . I’m a Republican [slapped by Democratic judicial rout of 2006]. . . . I’m a Democrat” — or so he said on Sept. 20, when he announced he was returning to the Democratic Party. First appointed to a criminal district bench when then-Gov. Ann Richards made him a judge in 1991, he ran as a Democrat in 1992 and won, one of the last Dems standing in Dallas County at the time. But the Republican bandwagon proved too strong and in 1996, he switched parties rather than lose his bench. He successfully ran for re-election as a Republican in 2000 and 2004. Comes now the 2008 election cycle and he is back in the Democratic fold. Creuzot, apart from being a ground-breaking jurist, is nothing if not a political survivalist. But his back-and-forth seems little problem for the Democratic establishment, which came out in force for the press conference announcing his return. Creuzot as a Democrat cuts hard against the Republicans repeated refrain from the 2006 election cycle that the Dems allegedly put up a bunch of unqualified ballot sitters. But don’t expect every Yellow Dog Democrat to sit idly by without calling Creuzot to task for his flip-floppery. Dallas attorney Hiram McBeth is reportedly expected to make a primary race of things.

-- Mark Donald

AT&T phone home

If you want to know why the Eastern District of Texas is one of the most popular places in the country for plaintiffs to file patent infringement cases, you might want to call AT&T. The San Antonio-based telecommunications company just got socked with a $156 million jury verdict after a two week trial before U.S. District Judge Ron Clark of Beaumont. The verdict won by Dallas-based TGIP Inc., which accused AT&T of infringement of its phone card validation technology, is one of the largest patent verdicts in the district. Eastern District patent lawyers say, over and over again, that the reason the jurisdiction is so popular with plaintiffs is because of the experienced judges  and the discovery rules that cut down on litigation time. But waive a $156 million verdict around in the newspapers, and plaintiffs will likely be filing their suits in the Eastern Districts for reasons other than efficiency --- up until Congress and the White House take all of the fun out of it.

-- John Council

Suit by lawyer fired after remarks in Rove story goes to fed court

U.S. District Judge Sam Sparks will decide whether Texas Secretary of State’s office officials improperly fired Austin attorney Elizabeth Reyes in September 2005 for comments she made to a reporter that embarrassed Karl Rove, President George W. Bush’s longtime adviser and the former deputy chief of staff at the White House.  On Sept. 14, defendants in Reyes v. Williams, et al. removed Reyes' suit to the U.S. District Court for the Western District in Austin. Reyes filed the suit on Aug. 16 in the 53rd District Court in Austin, alleging in her complaint that Roger Williams and H.S. “Buddy” Garcia, the former secretary of state and deputy secretary of state, fired her in retaliation, because a Washington Post article quoted her in a story about Rove’s residency status.  In the complaint, Reyes alleged that the justification given for her termination – that she had violated the secretary of state’s policy on press calls when she spoke to the Washington Post reporter – was “a pretext to obfuscate” the two officials’ retaliation against her.  Reyes also named Phil Wilson, the current secretary of state, as a defendant in the suit and is seeking an injunction to require Wilson to purge any references to the termination from her employment record at the secretary of state’s office.  In their answer, the defendants deny all of Reyes’ allegations and assert official, sovereign and qualified immunity from her suit.  It will be interesting to see what the no-nonsense Sparks has to say in this case.
-- Mary Alice Robbins

What would a regular charity do?

Surprisingly, nothing seems to have taken as long as most people expected in the Holy Land Foundation trial. Before it began, lawyers on both sides predicted the case would last until November. But today the government launched its closing arguments in the case against the Richardson-based Muslim charity and five men linked to the organization. By the lunch break, Barry Jonas, trial attorney for the U.S. Department of Justice in the Counter Terrorism Section, who is helping prosecute the government's case, told the judge that he had made his points faster than he anticipated. Although delivered quickly,  Jonas managed in his morning remarks to cover a significant amount of territory, referring jurors to multiple videotapes of HLF activities, transcripts of the defendants' wiretapped conversations and documents that the prosecutor claimed painted a picture of an organization eager to assist Hamas. "Is this what a regular charity would do?" Jonas asked the jurors on numerous occasions after playing videotapes for them of fundraising conferences where anti-Israel and pro-Palestinian theatrics allegedly took place and after reading to them a letter from a HLF supporter who condemned the creation of Israel.
-- Miriam Rozen

The value of a life

Here’s a recent front page article that likely will soon be on the e-mail forward list of the Texas Trial Lawyers Association. It’s a tale from the Kerrville Daily Times, and it’s one that’s very familiar to Texas plaintiffs lawyers but maybe not to the general public. Richard Miller tells the tale of his wife’s painful death from an allegedly botched medical procedure. But he couldn’t find a medical malpractice lawyer to take the case involving the death of the 73-year-old woman. Because of 2003 tort reform measures in H.B. 4, lawyers won’t take cases like his, because the litigation costs are more than could ever be recovered -- particularly in cases in which the decedent was either elderly or a child and had no earning ability (now a key component in med-mal damages). Hopefully stories like this will continue to be printed and shame the Texas Legislature into rolling back some of the more insidious parts of H.B. 4. Which tort-reform minded legislator would like to call up Miller and explain to him why his beloved wife’s life is worth less than someone who is 40 years old?
-- John Council

Work-life balance option on the way to Big D?

A small Atlanta firm made up of big-firm refugees may open up a Dallas branch. FSB Corporate Counsel is a firm "made up of 10 young lawyers who say there's more to life than billing clients," according to a Sept. 15 article in the Atlanta Journal-Constitution. The article says FSB attorneys bill fewer hours than their big-firm peers but retain more of the benefits of their work. "FSB attorneys retain about 85 percent of what they bill," the article says, and notes that FSB may soon add five lawyers in Dallas.
-- Jonathan Fox

AKA affirmed

I always get a kick out of unusually styled 5th U.S. Circuit Court of Appeals cases. And U.S. v. Hall, released on September 17, 2007, is a good example. Let me be more precise. The case is really called United States of America v. Aaron Hall also known as Pops also known as Cat. It's an appeal of a 12-year sentence on a drug possession and conspiracy case in which Hall challenges some of the testimony used against him in his case. The legal issues involved are somewhat interesting. But I really wanted to know where Hall's aliases figure into the equation. Sure enough, the opinion makes mention of Hall's street name "Pops." It was relevant because a drug ledger kept by one of the co-defendants to document drug deals listed that name. But the body of the opinion fails to mention other nickname "Cat." What happened to "Cat"? And why was Hall called "Pops" in the first place? Was he old? Why was he called "Cat" for that matter? Was he wily and/or furry? These questions are not answered in Judge Priscilla Owen's opinion affirming Hall's conviction. So next time, Owen might want to offer a few more clues for the benefit of the less streetwise reader.

-- John Council

Quid pro quo for pro bono

A Baron & Budd-funded scholarship program gives University of Texas School of Law students a chance to assist low-income Texans while also helping fund their legal educations.  Six UT students will receive Baron & Budd Public Interest Scholarships of $4,000 for the 2007-2008 academic year in exchange for their commitment to work 300 pro bono hours at organizations that provide legal services to underserved individuals or communities. The students and their assignments are: Whitney Hill, Advocacy Inc., a nonprofit organization dedicated to protecting the legal rights of the disabled; Kate Lincoln-Goldfinch, Political Asylum Project of Austin, a nonprofit that promotes justice for immigrants and refugees by providing free and low cost legal services and education; Kevin Little, Texas Civil Rights Project, a group that advocates for racial, social and economic equality in the state; Meghan Shapiro, Texas Defender Service, a nonprofit firm that represents indigent death row inmates; Mi Hui Tsai, Capital Area AIDS Legal Project, a group that provides free legal services to low-income people with HIV/AIDS; and Kevin Vela, Equal Justice Center, a nonprofit organization that helps low income people and communities with employment and civil rights issues. The scholarship program is a great way to educate future lawyers about the needs of people who can’t pay for legal services.
-- Mary Alice Robbins

Here comes the judge

Peter Murphy, a professor at South Texas College of Law since 1984, will start a new job next month.  On Oct. 22, Murphy assumes the position of circuit judge on the Crown Court of England, where he will preside over trials involving criminal offenses and appeals from lower courts. Murphy’s areas of expertise are evidence, procedure and trial advocacy. Since 1998, Murphy has worked as a defense attorney at the International Criminal Tribunal for the former Yugoslavia at The Hague.  James Alfini, STCL president and dean, says in a statement, “Although we are saddened at the prospect of losing a highly valued faculty member, I am unaware of any other American law professor who’s been offered a judgeship by the queen of England.”  But will Murphy have to wear a white wig?
-- Mary Alice Robbins

Suestrong

The Lance Armstrong Foundation, an Austin nonprofit, is suing makers of wristbands that look remarkably similar to the ubiquitous yellow "LIVESTRONG" wristbands sold by the five-time Tour de France winner's cancer research and advocacy charity. In Lance Armstrong Foundation v. Chris Ohman and Animal Charity Collar Group Inc., filed Sept. 11 in U.S. District Court for the Western District of Texas, the famous cyclist's charity alleges that Chris Ohman of Tulsa, Okla., and his company Animal Charity Collar Group Inc. are selling wristbands that infringe on the foundation's trademarks. Ohman's yellow pet collars and other products, the suit alleges, infringe on the foundation's trademarks and trade dress by their use of yellow coloring, similar material and slogans such as "BARKSTRONG, PURRSTRONG, DOES YOUR DOG BARKSTRONG [and] DOES YOUR CAT PURRSTRONG." Those trademarks, the foundation alleges, "are confusingly similar to, and are likely to cause confusion, mistake or deception, as to origin, source, sponsorship or affiliation" with Armstrong's foundation. The foundation also alleges that Ohman's company, despite its name, only gave $875 to charities even though its gross sales were more than $10,000 through Nov. 29, 2006.
-- Jonathan Fox

Award against O'Quinn's firm grows

An arbitration panel ordered John M. O’Quinn’s firm to pay up a little more to a class of 3,450 former breast implant clients who allege O’Quinn’s firm overcharged them for expenses. In July, a three-member arbitration panel ordered O’Quinn’s firm to pay $35.7 million in damages to the class. But in an order issued on Sept. 11, a three-member arbitration panel ordered the firm to pay a total of $41,465,950. That $41.5 million breaks down to $9,979,364 for breach of contract damages, $2,494,841 for attorneys’ fees on the breach of contract claim, $3,991,745 in interest on the breach of contract claim and $25 million for fee forfeiture. The panel allocated $500,000 for expenses and $10,241,487 for attorneys’ fees, leaving $30,724,463 to be distributed to class members. O’Quinn, of O’Quinn Law Firm in Houston, could not be reached immediately for comment. Neither could his attorney, Billy Shepherd, a partner in Cruse, Scott, Henderson & Allen in Houston, who said in an earlier interview that they are researching avenues of appeal. An attorney for the plaintiffs, Joseph Jamail, a partner in Jamail & Kolius in Houston, says, “It came out pretty much where I thought we were going to, based on the original order.” Jamail says the former O’Quinn clients “felt cheated” but are now vindicated. In their petition in Martha Wood, et al. v. John M. O’Quinn, P.C., the plaintiffs allege O’Quinn’s firm wrongfully deducted “Breast Implant General Expenses” – expenses such as the cost of taking depositions that were relevant to all the suits – and other fees from their settlement checks. O’Quinn denied the allegations. In an order issued in March, a majority of the arbitration panel found the fee agreements between O’Quinn’s firm and the class members do not allow for the deduction of the general breast implant expenses, certain expenses charged the class members were “inappropriate,” and the firm’s actions were not authorized by the fee agreements. All three arbitrators -- David Beck, a partner in Beck, Redden & Secrest in Houston, former state district Judge Susan Soussan of Houston, and Kenneth Tekell, a partner in Tekell, Book, Matthews & Limmer in Houston – signed the Sept. 11 order. Only Beck and Tekell signed the March order, and only Beck and Soussan signed the July order.
-- Brenda Sapino Jeffreys

Securities suit rolls into court

Heelys Inc., the Carrollton-based company that markets shoes with wheels in the heels, is the target of a securities class action filed Sept. 10 in U.S. District Court for the Northern District of Texas. Heelys are sneakers that allow wearers, "normally from 6 to 14 years of age," to switch from walking or running to skating by shifting weight to their heels. Recently, as injury reports have piled up, safety advocates have urged wearers to put on the same helmets, wrist protectors, and knee and elbow pads that users of inline skates and roller skates would wear. Now, some of the investors, who according to the suit bought $155 million worth of stock as part of Heelys' December 2006 initial public offering, are crying foul. In Lee v. Heelys Inc., et al., a shareholder alleges that the registration statement filed by Heelys as part of its IPO was misleading because it "failed to disclose the staggering number of injuries suffered by Heelys' users in the months leading up to the IPO." The suit also accuses Heelys of marketing its product for use without protective gear. At the time of the Heelys IPO, the suit alleges that the Consumer Product Safety Commission had received more than 2 million injury reports related to Heelys use between 2001 and 2006. By 2007, the suit alleges that consumer awareness over the dangerousness of Heelys products led to a sales downtown that caused the company's stock price to plunge and investors to lose tens of millions of dollars.
-- Jonathan Fox

Props to pro se protesting prod

Acting as his own attorney, ex-convict Dale Payne convinced the 5th U.S. Circuit Court of Appeals to vacate the summary judgment that a U.S. district court in Houston granted a state prison guard in Payne’s excessive force suit.  In a per curiam opinion issued Sept. 5, a 5th Circuit panel made up of Judges Carolyn King, Emilio Garza and Fortunato “Pete” Benavides concluded in Payne v. Parnell, et al. that Jimmy Parnell’s “deliberate unnecessary application of an electric shock from a cattle prod in this case resulted in more than de minimis injuries.”  Payne, who was paroled six months ago, alleged in his 42 U.S.C. §1983 civil rights suit that Parnell shocked him in 2002 while Payne was working at the Estelle Unit and then chased him with the cattle prod.  According to the 5th Circuit’s opinion, Parnell “admitted Payne’s allegations concerning the cattle prod were true” but claimed he shocked Payne “only in a joking manner.” The opinion noted that prison officials suspended Parnell for two days without pay and placed him on probation for 90 days.  Payne then filed suit against Parnell and four others in supervisory positions at the prison.  The 5th Circuit affirmed the district court summary judgment dismissal of Payne’s suit against the other four defendants.  It’s not a bad result for a former prison inmate who represented himself.
-- Mary Alice Robbins

Sonnenschein nabs ag biotech lawyer

Chicago-based Sonnenschein Nath & Rosenthal, which opened an office in Dallas in February but recently lost its first hire, is back up to three-lawyer strength. On Sept. 4, Robert Hanson, an intellectual property lawyer who works in the agricultural biotechnology and life sciences area, joined the firm as a partner. Hanson’s clients include Monsanto Co. of St. Louis. Hanson, who left Fulbright & Jaworski’s Austin office, says he was attracted to Sonnenschein, because the firm has a strong agricultural biotechnology practice with lawyers in the practice based in St. Louis and San Francisco. “It’s a very strong and growing area,” Hanson says. “It’s a niche but a very important niche.” Matthew Orwig, managing partner in Dallas for Sonnenschein, says Hanson is “the premier guru in this field.” With Hanson, Sonnenschein has three lawyers in Dallas, but Orwig says several lawyers are on tap to beef up the office after the first of the year.  Sonnenschein’s first hire in Dallas was Matt Yarbrough, a former assistant U.S. attorney and former partner in the Dallas office of Fish & Richardson, but he left the firm a few weeks ago. Sonnenschein has about 700 lawyers in 13 offices in the United States and Brussels.   
-- Brenda Sapino Jeffreys

Oklahoma, where the firms come sweeping down the plains

Add Oklahoma to the list of states exporting firms to Texas. On Sept. 10, Dallas lawyer Kevin H. Good, who does litigation and transactions in the aviation industry, opened a Dallas office for Tulsa-based Conner & Winters. Sam Manipella, marketing director for the 90-lawyer Conner & Winters, says a move into Dallas is a natural fit for the firm. Conner & Winters’ primary branch offices are in Oklahoma City and in Fayetteville, Ark., but the firm has small offices in Jackson Hole, Wyo., Santa Fe., N. M., and Washington, D.C., he says. The firm had a one-lawyer office in Houston, but no one is currently working in that office, and the firm plans to rebuild its Houston operation while also growing in Dallas, Manipella says. Good, an alumni of Strasburger & Price in Dallas who has had his own firm for the last five years, says he moved to Conner & Winters in part because he enjoys being a member of a team. “When I met the Conner & Winters people, they seemed like my type of folks,” Good says. Good declines to identify his clients, but Manipella says the firm’s Texas clients include Greatwide Logistics Services Inc. of Dallas.
-- Brenda Sapino Jeffreys

Tattered tie taunts terrorist

Lufkin City Attorney Robert Flournoy stands by his word. Ever since the Sept. 11, 2001, terrorist attacks, Flournoy has worn the same red, white and blue tie. He vowed to continue to wear it until al-Qaida leader Osama bin Laden is captured or proven dead. But after six years, the tie he bought at the 2000 Republican National Convention is worn out and so dilapidated that it’s held together by Velcro, and Flournoy has lately been wearing sweater vests to partially cover the ragged tie. Two weeks ago, Flournoy announced that he was ready to declare bin Laden dead, and he  officially would retire the tie if the al-Qaida leader didn’t prove by today, the sixth anniversary of the 2001 terrorist attacks, that he’s alive. “I gave him about 10 days to come forward, and I was really convinced he was not alive. We hadn’t heard from him in about three years,” Flournoy says. But bin Laden may have proven he’s alive, with a new video made public last weekend that appears to feature the al-Qaida leader. Because of that video, Flournoy says he will keep on wearing the tie -- until bin Laden is captured or proven dead.  Flournoy, meanwhile, has also challenged bin Laden to meet him at a park near Lufkin City Hall, and “we’ll just fight to the death.” Flournoy says, “If he doesn’t show up at the park, that just means he’s a coward.” Flournoy, city attorney in Lufkin since 1969, says reporters from all over the world have called him in the days since he challenged bin Laden to prove he’s alive, but he doesn’t believe bin Laden released a video simply due to his challenge.  On Sept. 10, he was interviewed by a reporter for the ABC news program “Nightline,” and he expects that interview to be shown on Sept. 11. “It’s been an interesting run here with this thing,” Flournoy says. 
-- Brenda Sapino Jeffreys

Those blasted lawyers

Williams Kherkher, a 26-lawyer firm headquartered in Houston and headed by John Eddie Williams Jr., is touting the launch of its new Web site on explosion law.  According to www.texasexplosionlawyers.com, the most common types of explosions in Texas are residential gas explosions, gas/refinery explosions and industrial explosions.  The firm offers the following advice for those injured in explosions: First, seek medical attention, and then contact the “explosion lawyers” at Williams Kherkher.  Really? You should call your doctor before you call your lawyer?
-- Mary Alice Robbins

Unwelcome mat

Another Texas city is being sued for allegedly discriminating against Hispanic renters. A partnership of a low-income housing developer, landowners and a construction company on Sept. 10 sued the city of Alvin in U.S. District Court for the Southern District of Texas for stymieing their plans to use government subsidies to build low-income apartments in the Houston suburb. They allege that the city has blocked their plan, because it does not want an influx of Hispanic renters. Artisan/American Corp. seeks to build two projects consisting of 36 apartment units each on land owned by Alvin Manor Ltd. and Alvin Manor Estates Ltd. Inland General Construction Co. is slated to be the general contractor on the project. Artisan/American and its partners in July 2004 obtained housing tax credits from the Texas Department of Housing and Community Affairs to build the apartments in Alvin, but city leaders resisted from the beginning, asserting building code violations and that the city had a "greater proportion of 'citizens receiving housing assistance' than other cities in Brazoria County," according to the complaint. The city also passed an ordinance prohibiting the construction of an apartment project within 300 feet of a single-family residence. "The real reason for refusing approval for the Alvin Manor Development," the partners allege in the suit, "was that the two projects within it would primarily be occupied by low-to-moderate income Hispanic families." The suit alleges violations of the federal Fair Housing Act and the Texas Fair Housing Act by the city and seeks $2.6 million in damages.
-- Jonathan Fox

Challenging Chuck

Can an outsider take out an established district attorney in a county that has put more people on death row than most countries? We'll find out after C.O. "Brad" Bradford, a former Houston police chief, formally announces on Sept. 18 that he's running as a Democrat against Harris County District Attorney Chuck Rosenthal, a Republican. Bradford, who now works as a lawyer, pledges a different approach to running the DA's office, with more emphasis on the root causes of crime by creating a division of nonlawyers who deal with public health and substance abuse, among other things. Craig Watkins, another outsider who won the Dallas County district attorney job last year, made a similar pledge when he promised to be "smart on crime" by focusing on other aspects instead of merely locking people up. But while Watkins ran for an open seat in a county that was trending Democratic, Bradford is running in a county that's still fairly Republican. And Bradford is likely to be dogged by the fact that problems with Houston's crime lab came to light while he was the chief of police. Rosenthal prosecuted Bradford for alleged perjury in a case that was eventually dismissed by a trial court. In other words, expect a healthy debate on the issues served with a nice side show of personal politics  in this DA race.
-- John Council

Lawyer flick flickering out?

Movie blogs have lit up with news of the temporary tanking of “Tulia,” the movie version of the drug sting in Tulia, Texas, which was in production and scheduled to begin shooting in October. The problem is that the film’s star, Halle Berry, is also in production, announcing last week that she is three months pregnant. Berry was slated to portray Vanita Gupta, the lead attorney for the NAACP Legal Defense and Educational Fund. Gupta's passionate advocacy helped reverse the tragedy that led to the wrongful conviction of 46 Tulia residents, all of them African-American. “Tulia,” the screenplay, is an adaptation of former Texas Observer editor Nate Blakeslee’s non-fiction book, “Tulia: Race, Cocaine, and Corruption in a Small Texas Town.” Billy Bob Thornton was also scheduled to star in the film, under the direction of John Singleton of “Boyz ’n the Hood” fame. The setback may not be permanent; rumors of the film’s resurrection next year persist.
-- Mark Donald

Hanging by a hair

One of the most unusual cases in which attorneys are seeking DNA testing is that of  Clarence Jones. The state executed him in 2000 for the 1989 robbery and murder of Allen Hilzendager at a liquor store in San Jacinto County.  Today, 258th District Judge Elizabeth Coker issued a temporary restraining order that blocks the state from destroying evidence of a single hair that could show whether Jones was wrongfully executed.  Represented by Mayer Brown in Houston, three organizations -- the Texas Observer, the Innocence Project of Texas and the Texas Innocence Network -- filed a petition for a writ of mandamus and injunctive and declaratory relief on Sept. 7.  According to the petition in The Texas Observer, et al. v. Burnett, et al., an inch-long hair fragment found on the counter behind the spot where Hilzendager was standing when he was shot is the only piece of physical evidence from the murder.  The plaintiffs are seeking a court order to conduct DNA testing to determine if the hair matches Jones' DNA.  Other than the hair, the primary evidence against Jones was an alleged accomplice’s later-recanted testimony that Jones was involved in the murder.  Bill Burnett, the San Jacinto district attorney who was one of the prosecutors at Jones’ 1990 trial, did not immediately return a telephone call seeking comment.  Barry Scheck, co-director of the Innocence Project, says the public has a right to know whether Jones committed the crime for which he was executed. 
-- Mary Alice Robbins

Man claims Countrywide wasn't on his side

Lee Kelsoe, a Tarrant County man, is suing Countrywide Home Loans Inc., his former mortgage lender, for allegedly ruining his credit by reporting erroneously that the lender had foreclosed on his home or that he had defaulted on his mortgage payments. Kelsoe filed suit on Sept. 6 in U.S. District Court for the Northern District of Texas. Financial difficulties, Kelsoe says, pushed him into a Chapter 13 bankruptcy on May 3, 2002. Kelsoe says that he obtained court permission to sell his Euless home, which Countrywide financed, but that the lender allegedly resisted the sale. Eventually, Kelsoe says, he obtained a court order compelling Countrywide to allow the sale. After being discharged from bankruptcy, Kelsoe says he learned in September 2006 that Countrywide allegedly had reported to credit bureaus that it had foreclosed on Kelsoe's home or that payments were in default. Kelsoe says that he asked the lender to correct the reports, but it allegedly did not do so. Meanwhile, Kelsoe says that his credit score went down as a result of Countrywide's reports, and he is paying a higher price for car insurance and other goods and services. Kelsoe is suing Countrywide under the federal Fair Debt Collection Practices Act, Fair Credit Reporting Act and other statutes.
-- Jonathan Fox

Gentrification or getting rid of immigrants?

In SPT Apartments v. City of Irving, filed on Sept. 5 in the 116th District Court in Dallas, SPT alleges that the city is using condemnation measures to force owners to sell older properties at a drastic loss as part of an effort to rid Irving of illegal aliens. “Plaintiff is one of a group of multi-family complexes that are slated to be razed in the City of Irving’s aggressive intent to rid itself of working class minority immigrants,” SPT, owner of the Spanish Trace Apartments, alleges in its original petition. SPT, which is seeking a temporary restraining order and injunctive relief, alleges that on Aug. 31, a city building inspector posted notices on tenants’ doors advising that the complex must be vacated by Sept. 30.  In its petition, SPT asks the district court to review the city of Irving’s Building and Standards Commission order requiring the property to be vacated. SPT alleges that it has tried to cooperate with the city and has spent more than $100,000 to make repairs at the complex.  But the city does not intend to allow the complex to remain, SPT alleges in its petition. Irving City Attorney Charles Anderson says, “There’s no such plan to rid the city of illegal aliens.”  The city is trying to get rid of aging apartments whose owners do not maintain them properly, Anderson says.  It will be interesting to see what the district court decides in SPT Apartments.
-- Mary Alice Robbins

The life aquatic

Ju