Texas Lawyer Blog

Wooed by Winstead

Dallas-based Winstead is launching a new scholarship program in January to enhance the firm’s diversity. The Winstead Juris Doctor Scholarship Program will offer one first-year student from each of three law schools -- the University of Houston Law Center, the University of Texas School of Law and Southern Methodist University Dedman School of Law -- a package of cash awards and bonuses totaling $18,000, an associate position in the firm’s 2009 summer program and an opportunity to select a minority student organization to which the firm will donate $2,000. Applications for the scholarships are due in February and include a personal statement, a copy of the student’s first-semester transcript and a résumé. The firm is also encouraging students to submit a written legal product with their applications. Winstead attorneys will interview scholarship finalists in early March and notify the winners by the end of the month.
Here’s how the money breaks down, according to an e-mail from Tom Forestier, a Winstead shareholder in Houston and chairman of the firm’s diversity committee: $2,500 to each scholarship recipient at the end of March 2008; $2,500 as a signing bonus for accepting a 2009 summer associate position; and $13,000 as a signing bonus when beginning full-time employment with the firm. Additionally, Winstead will donate $2,000 to a law student organization or group, such as the Chicano/Hispanic Law Students’ Association at UT Law, selected by each scholarship winner. Winstead plans to give presentations about the program at each of the three law schools in January.

-- Jeanne Graham

Come out swinging

What is it about the new Democratic judges who have taken over the Dallas County courthouse that makes them seem unhappy with their lot in life? You would think that muscling out 40-plus Republican incumbent judges in the ’06 election cycle would give them a sense of peace, and they would just go about the business of being judges. But no, that doesn’t seem to be the case.  At least two of them have declared their interest in seeking a higher bench. One of these, 254th Court family law Judge David Hanschen, has announced his candidacy for an open seat on the 5th Court of Appeals. Now comes 160th District Judge Jim Jordan, who in a biting Dec. 20 press release announced he is challenging Republican Chief Justice Wallace Jefferson for his seat on the Texas Supreme Court. Gov. Rick Perry appointed Jefferson in 2004, and voters elected him to an abbreviated term in 2006. Jordan, assuming he has no Democratic primary opponent, gets a free shot at Jefferson in the ’08 general election; Jordan does not have to vacate his trial bench to run. If Jordan’s press release is any indication of the tone with which he intends to pursue the campaign, Jefferson may have a real fight on his hands. Jordan says the high court has lost its way under Jefferson’s leadership, noting what he claims is its record-setting backlog of cases; its alleged pro-business, anti-jury bias; and a court less interested in upholding the law than “advancing its own ideology.” So judge, what do you really think is wrong with the court?
-- Mark Donald

Abbott who?

On Dec. 19, Avvo Inc., a Seattle-based, venture-capital-funded company, launched a Web site that it touts as the “only website that rates and profiles every lawyer so consumers can choose the right lawyer.” Each attorney in Avvo’s online directory, which includes 75,754 in Texas, is graded with the Avvo Rating, which is the company’s assessment of how well a lawyer can represent a client. Avvo says the ratings are derived with a proprietary mathematical model that considers each lawyer’s experience, professional achievements and disciplinary history. But clearly the site is a work in progress. It lists as unknown the practice area for several well-known Texas trial lawyers, such as Joe Jamail of Houston’s Jamail & Kolius; Harry Reasoner, former managing partner of Houston’s Vinson & Elkins; and Stephen Susman, a partner in Susman & Godfrey in Houston. It also lists as unknown the practice areas for Texas Attorney General Gregory Abbott and former U.S. Attorney General Alberto Gonzales, whose name has been in the news a bit lately.
-- Brenda Sapino Jeffreys

Hey, good lookin'

An Angelina County woman is suing Aaron's Rents Inc. and Waterfront Holdings Inc. for passing her over for a job at an Aaron's Sales & Lease store in Lufkin in favor of a female who the suit claims the regional manager thought "sounded sexy on the phone" and was "good looking" in person. In DeLeon v. Aaron Rents Inc., et al., filed Dec. 18 in U.S. District Court for the Eastern District of Texas, Sandra DeLeon, 36, alleges that she was initially hired in February 2007 by store manager Mike Alday for an $8.50 an hour job with benefits at the Lufkin store but that Aaron's regional manager David Knight rescinded Alday's order, because the suits claims "he did not want a big fat girl behind the counter." Knight then instructed Alday that female employees "had to have good breasts and/or butts," according to the complaint. Knight, DeLeon alleges, then hired a woman that he deemed to be attractive but who allegedly lacked DeLeon's qualifications and experience. Alday then resigned, deciding "that he could not keep working for Regional Manager Knight," DeLeon alleges. DeLeon is suing Aaron's Rents for gender discrimination under Title VII of the Civil Rights Act of 1964. "Knight did not require male employees to have the same type of physical attributes that he required in order to hire a female employee," DeLeon alleges in the suit. DeLeon is seeking an injunction ordering Aaron's Rent to hire her or pay her damages.
-- Jonathan Fox

Ringing in the new year

The 20 attorneys with the Houston office of San Francisco-based Littler Mendelson will begin the new year with a new managing shareholder: Katherine “Kit” E. Flanagan. On Jan. 1, Flanagan will succeed Linda Ottinger Headley, who has been managing shareholder in Houston since January 2001. Headley will continue to serve on the 650-attorney firm’s 19-member board of directors, as well as the firm's recruiting committee. Flanagan has been with the firm’s Houston office since it opened in 1995.
-- Jeanne Graham

Seeking cert

The Supreme Court Clinic at the University of Texas School of Law filed a cert petition Dec. 17, asking the U.S. Supreme Court to consider whether a 30-years-without-parole sentence for Chris Pittman -- who murdered his paternal grandparents when he was 12 years old -- violates the Eighth Amendment.  Faculty and students with both the clinic and UT’s Lyndon B. Johnson School of Public Affairs prepared the petition and researched legal arguments and juvenile sentencing practices. The faculty involved include Michael F. Sturley, law school professor and director of the law school’s clinic; Lynn E. Blais, a law school professor; and Michele Y. Deitch, an attorney who teaches at the law and public affairs schools. Earl Landers “Lanny” Vickery, an appellate attorney in Austin and U.T. law school graduate, helped handle Pittman’s case in the South Carolina courts and asked the clinic for assistance in petitioning the Supreme Court.

-- Jeanne Graham

Oh say, can you see?

Travis County Judge Sam Biscoe says it’s difficult to find a site in downtown Austin to build a new county civil courts building because of height restrictions set by the Texas Legislature in 1983 to protect views of the state capitol. Biscoe says the courts building can go up only three stories to stay within the restrictions for capitol-view corridors. “It’s easier to exclude sites than to include them,” Biscoe says.  One possibility county officials are considering, Biscoe says, is to locate all court-related services in a downtown building and other services -- such as transportation and human resources -- elsewhere in the city.  Biscoe says the county commissioners court will appoint a citizens advisory committee early next year to assist officials in the planning. 
-- Mary Alice Robbins

Does Texas = Satan's lair?

Texas lawyers take note. The Rio Grande Valley and the Gulf Coast of Texas made a list of the country’s “judicial hellholes,” second only to South Florida on the annual ranking compiled by the Washington, D.C.-based American Tort Reform Foundation. In its sixth annual Judicial Hellholes report, the ATRF characterizes those areas in East Texas and South Texas as “among the nation’s most unfair civil court jurisdictions.” Translation: The ATRF says the Valley and the Gulf Coast regions are plaintiff friendly. According to the ATRF report, the Rio Grande Valley and the Gulf Coast remain tough jurisdictions for corporate defendants, despite tort reform measures enacted by the Texas Legislature in 2003 and 2004. In a written response, the Washington, D.C.-based American Association for Justice -- formerly the Association of Trial Lawyers of America -- calls the 2007 Judicial Hellholes report a “slick piece of propaganda” that holds no surprises, since ATRA "is funded by big corporate CEOs from insurance, pharmaceutical and tobacco" industries. The other jurisdictions on the 2007 Judicial Hellholes list are  Cook County, Illinois and West Virginia. Newcomers to the list Clark County, Nev., and Atlantic County, N.J.
-- Brenda Sapino Jeffreys

Which precedent takes precedence?

The Texas Office of the Attorney General’s Dec. 14 opinion on House Speaker Tom Craddick’s status isn’t likely to quell the controversy. In the waning days of the 2007 session, Craddick refused to recognize members of the House for a motion to vacate the chair. State Reps. Jim Keffer, R-Eastland, and Byron Cook, R-Corsicana, filed the request for an attorney general’s opinion. The two legislators asked whether the House speaker is a legislative officer who serves at the pleasure of the membership or a state officer. In the opinion, the OAG concludes that the speaker is an officer of the state who can be removed from office by impeachment -- but apparently not by a motion in the House. To support its conclusion, the OAG cites the Texas Supreme Court’s 1934 decision in Dorenfield v. State and the Austin Appeals Court’s 1940 decision in Knox v. Johnson. In Dorenfield, the Supreme Court determined that the House speaker’s appointees to the Depression-era Texas Relief Commission were officers of the state for purposes of removal. Six years later, the court of appeals held in Knox that a state hospital superintendent was an officer of the state.  In their request for an opinion, Keffer and Cook cited as precedent the 1871 removal of House Speaker Ira Hobart Evans from the office of speaker. According to a footnote in the Keffer-Cook opinion request, the House removed Evans after the presentation of a motion to vacate the chair. The Handbook of Texas Online reports that a caucus of the Republican Party voted to remove Evans from the office of speaker, and the office was declared vacant the day after the caucus voted. The OAG makes no mention of Evans.
-- Mary Alice Robbins

Baylor role at U.S. Supreme Court

A Baylor University School of Law professor, an alumnus and a student played a role in the recent ruling by the U.S. Supreme Court giving federal judges more leeway to deviate from federal sentencing guidelines in cocaine cases.  Law professor Mark Osler; 2006 graduate Dustin B. Benham, who is now an appellate associate with Dallas’ Carrington, Coleman, Sloman & Blumenthal; and Matt Acosta, a law student scheduled to graduate in February 2008, helped prepare a pro bono amici curiae brief in Kimbrough v. United States on behalf of the Federal Public and Community Defenders and the National Association of Federal Defenders. Osler, Benham and Acosta also traveled to Washington, D.C. in October to watch the case argued before the Supreme Court. The Court ruled on Dec. 10 that deviating from federal sentencing guidelines -- as in the case involving Derrick Kimbrough, who received a 15-year sentence for cocaine and firearms offenses, rather than the federal guidelines’ minimum prison term of 19 years -- is not an abuse of judicial discretion. The Supreme Court decision allows judges to weigh the disparity between crack and powder cocaine offenses when giving defendants below -guideline sentences.
-- Jeanne Graham

The last picture show

For about a year and a half, the employees of the Texas Commission on Environmental Quality's Tyler office enjoyed watching movies during their lunch break, according to a recently filed suit. But watching movies using state-owned video equipment is a misuse of state property and thus violates TCEQ rules, the suit acknowledges. In Johnson v. Texas Commission on Environmental Quality, filed Dec. 13 in U.S. District Court for the Eastern District of Texas, Edmond Johnson Jr., an engineering technician who worked for TCEQ from 1999 to 2007, says that TCEQ discriminated against him as a black male by firing him for watching a lunch-break movie on TCEQ equipment but not punishing white movie-watching employees in the same manner. The suit accuses TCEQ of "adopting unreasonable, unwarranted, and arbitrary standards and conditions of employment designed to discriminate against Plaintiff in favor of Caucasian employees." Johnson seeks monetary damages and attorneys' fees but not reinstatement.
-- Jonathan Fox

So many gifts, so little copy

Call it inadvertent or just an embarrassment of riches, but in compiling the “Top 10 List of Holiday Gifts for the Lawyer in Your Life” for this week’s "Sidebar" column I neglected to include the “Texas Judicial Cookbook,” available for only $19.95 at your local bookstore — not that any bookstores are local anymore. [See “For the Lawyer Who Has Everything,” Texas Lawyer, Dec. 17, 2007, page 25.] Anyway, the cookbook, which in its introduction refers to the historic courthouses around the state, is billed as “a culinary tribute to these monuments of justice and leadership, fashioned by the hands of pioneering Texans.” Kinda makes your mouth water, don’t it. Included within its glossy pages are 59 allegedly delicious recipes submitted by judges, sheriffs, clerks and other political types from counties around the state. Treat yourself to Gonzales County Judge David Bird’s Mountain Oysters. Indulge your taste buds by feasting on Jefferson County Court-at-Law Judge Al Gerson’s Italian Batter-Fried Shark Bites. And what dining experience would be complete without a heaping bowl of Gov. Rick Perry’s Chuck Wagon Chili. I’m getting full, just thinking about it.

-- Mark Donald

DeGuerin goes Hollywood

As the paparazzi lined up along the red carpet to snap photos of celebrities for the Dec. 10 premiere of the film “Charlie Wilson’s War” — the true account of a Texas congressman’s efforts to help fund a Cold War defeat of the Soviet Union in Afghanistan — they had the chance to shoot the movie’s stars, including Tom Hanks, Julia Roberts and Dick DeGuerin. Wait a minute. DeGuerin? As it turns out, the Houston criminal-defense lawyer played a behind-the-scenes role in the making of the movie, which opens Dec. 21. The film recently was nominated for five Golden Globes, including Best Picture (Comedy/Musical), Best Actor, Best Supporting Actress, Best Supporting Actor and Best Screenplay. DeGuerin was the guest of Joanne King Herring, a Houston socialite who Roberts portrays, at the premiere of the movie at the Universal Studio AMC Theater in Hollywood. “Joanne King was and is my client and friend,” says DeGuerin, a partner in DeGuerin Dickson & Hennessy. “She’s the one who really got Charlie Wilson to do what he did.” King was an honorary consul to Pakistan in the 1980s. She convinced Wilson, then a member of the House Appropriations Committee, to help funnel money to the Afghan mujahedeen, the resistance fighters who eventually drove the Soviets out of their country. Pakistan played a role in the conflict in the 1980s, because the country served as a refuge for thousands of Afghans who fled their homeland during the Soviet occupation. Pakistan urged the United States to become involved in the war. Wilson’s story made for a popular 2003 book “Charlie Wilson’s War” and the new movie of the same name. But when Herring was leaked a copy of the movie script, she was not happy, DeGuerin says. “They had written a script that had her cussing like a sailor and doing things that she never did. She got me to threaten the producers with a lawsuit if they didn’t change it. And they did,” DeGuerin says. DeGuerin ended up sitting next to Herring at the premiere and met Hanks, who plays Wilson — proof that everyone was “very happy” after the resolution of the script conflict, he says.

-- John Council

Blog on in anonymity

A Dec. 12 ruling by Texarkana’s 6th Court of Appeals protects the identity of an anonymous blogger. The appeals court ruled in In Re: Does 1-10 that an Internet provider does not have to reveal the blogger’s identity. As noted in the 6th Court’s opinion, written by Justice Jack Carter, Essent PRMC, the company that owns Paris Regional Medical Center, sued the blogger and nine of his anonymous commentators in June, alleging in its original petition that John Doe 1 had set up a blog that is defamatory, containing “scurrilous” comments about the hospital and its staff. Essent also filed an ex parte request for disclosure of information from a nonparty to the suit, SuddenLink Communications, Doe 1’s Internet provider. The trial court, which is not identified in the 6th Court’s opinion, ordered SuddenLink to disclose Doe 1’s name and address, basing its order on Essent’s argument on a provision in the Cable Communications Policy Act, 47 U.S.C. §551(c). Doe 1 filed a petition for a writ of mandamus with the 6th Court, which found that “the federal statute is not a procedural vehicle for obtaining such a court order.”  The 6th Court also held that the operator of the blog site has a First Amendment right to anonymity in the defamation suit, unless Essent provides proof that the blog postings caused it financial harm. Carter wrote for the 6th Court that “an author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.” Chief Justice Josh Morriss III and Justice Bailey C. Moseley joined in the decision. So, blog on anonymous bloggers.  But  I have to identify myself.
-- Mary Alice Robbins

Kicked in the shins

A breach-of-contract suit has jeopardized an international soccer "Free Kick Master" competition scheduled to be held in Houston on July 4, 2008. In Lazlo Ltd. v. Paragon Worldwide Ltd., et al., filed Dec. 12 in U.S. District Court for the Southern District of Texas, Spain-based Lazlo Ltd. alleges that Paragon Worldwide LLC and Camelot Entertainment LLC, two Texas-based companies, breached a contract to pay Lazlo $6 million in exchange for the right to use its "Free Kick Master" trademarks to promote a planned 2008 competition. According to the suit, a Free Kick Master event is "a sports and entertainment extravaganza through which the professional soccer players . . . compete for cash and prizes in various soccer-related events before mass arena crowds, with accompanying musical acts." Paragon made an initial $1.2 million payment, the suit alleges, but failed to make subsequent payments, other than payment of a $100,000 fine to Lazlo that was supposed to accompany a late $900,000 payment. "Upon information and belief, Paragon and Camelot intend to conduct the Free Kick Master Event scheduled for July 4, 2007 without the requisite license and trademark to do so," the suit alleges. Lazlo is suing the Texas companies for trademark infringement, breach of contract, an injunction and other causes of action.
-- Jonathan Fox

Firm forms Diversity Fellowship

Vinson & Elkins has announced a new scholarship program aimed at promoting diversity. The first V&E Diversity Fellowship will provide a total of $7,000 to two first-year law students from “historically under-represented groups in the legal profession” who are attending the University of Texas School of Law. The Houston-based firm will pay the students $3,500 at the beginning of their second and third years of law school. The firm will also consider the recipients for its summer associate program in the Austin, Dallas or Houston office for the summer after the students’ first year of law school. Minority students with a graduation year of 2010 and joint-degree candidates graduating in 2011 are eligible to apply for the V&E Diversity Fellowship. Applications will be accepted through Jan. 15, 2008. The V&E Diversity Fellowship is in addition to the firm’s Minority Scholarship program, which dates back to 1990 and provides scholarship money to high school students interested in the law as a career.

--Brenda Sapino Jeffreys

The opposite of a Good Samaritan

The Court of Criminal Appeals today reversed a 6th Court decision affirming a jail guard's conviction for injury to a disabled person by omission. According to the opinion, the facts of Hicks v. State involve a 2003 party in which Billy Ray Johnson, a 42-year-old mentally retarded man, quarreled with Christopher Colt Amox at a "party in a pasture" after Amox changed the music from rap to country. Amox claimed that he feared Johnson was about to hit him, so he punched Johnson in the face, knocking him unconscious. Other partygoers wanted to call for help, but James Corey Hicks feared losing his job as a guard at the Cass County jail. "Hicks directed the group to take Johnson outside of town and leave him on the side of a county road. Several of the partygoers lifted Johnson off the ground and placed him in the back of Amox's truck. Hicks then led a convoy to a remote location" on a county road, where Amox and another man put Johnson on the side of the road. Several hours later, Hicks went back to where he left Johnson and called authorities, who took Johnson to the hospital. A doctor diagnosed him with "subarachnoid hemorrhage arising from trauma to the head and aspiration pneumonia." A jury acquitted Hicks of two assault charges but found him guilty of injury to a disabled person by omission, codified in Texas Penal Code §22.04. But the CCA reversed  and remanded the case to the 6th Court of Appeals for reconsideration, finding that the 6th Court improperly broadened the requirement that to violate §22.04, a person have "care, custody or control" of the disabled. The CCA found that in holding Hicks responsible, the 6th Court essentially substituted the word "possession" for the definition of "care, custody, or control" under §22.04. To have care, custody or control of a disabled person, the CCA stated, a person must accept "responsibility for protection, food, shelter, and medical care for a . . . disabled individual."
-- Jonathan Fox

Landowners face off with DHS over border fence

During a Dec. 7 press briefing, U.S. Department of Homeland Security Secretary Michael Chertoff threatened to take legal action against Rio Grande Valley residents who refuse DHS’ request to survey their land to build a fence along the Texas-Mexico border. According to a transcript of the briefing posted on the DHS Web site, Chertoff said the department would be sending letters that day to inform resident that they have 30 days to allow federal officials entry to their land, or DHS will commence eminent domain proceedings. Texas RioGrande Legal Aid staff attorney Rebecca Webber says DHS is using a scare tactic against border residents. “Washington, D.C. is a big scary thing, and here’s the Department of Homeland Security saying, ‘We’re coming after you,’ ” Webber says. But Webber says landowners have the right to refuse access to federal officials who demand to enter their land without a court order. DHS must take specific steps before it can enter or seize property, she says.
-- Mary Alice Robbins

3rd Court race shaping up

Republican Ken Law, chief justice of Austin’s 3rd Court of Appeals, has announced his bid for re-election. A former clerk of the 3rd Court, Law first won election to the court in 2002. Democrat J. Woodfin “Woody” Jones, a former justice on the 3rd Court, announced in 2006 that he would run for chief justice. Jones, now a partner in Austin’s Alexander Dubose Jones & Townsend, says he still plans to run for the post. Back in 2000, Jones lost his bid for re-election to the 3rd Court to Republican David Puryear.
-- Mary Alice Robbins

Taco trademark tussle

An established El Paso taco chain and an upstart Austin taqueria are duking it out over similar-sounding names. In Chico's Tacos Inc. v. Chucos Management Group LLC, filed Dec. 6 in U.S. District Court for the Western District of Texas, Chico's Tacos of El Paso alleges that Chucos Management Group LLC is piggybacking on Chico's "significant recognition and goodwill" by naming Chuco's Management Group's restaurants Chuco's Tacos, which Chico's says is "confusingly similar" to its name. The Chuco's Tacos sole location in Austin, Chico's alleges, also features a sign with a sombrero and lettering "nearly identical" to the signs featured at Chico's five locations. Chico's suit alleges that Chucos has announced plans to open restaurants in additional locations, such as El Paso. Chico's is suing Chucos to force it to change its name, as well as for trademark infringement, unfair competition and other causes of action.
-- Jonathan Fox

The electric ride

Talk about luck. Keith Branyon, a tax partner in Jackson Walker’s Fort Worth office, recently won the chance to buy a Once-in-a-Lifetime holiday gift package from Sam’s Club. Branyon is the lucky buyer of a 2007 Hybrid Technologies Lithium-powered Smart Car, and a trip for four to the Kennedy Space Center in Florida, where they will go behind the scenes during a space shuttle liftoff in 2008. Branyon expects to pick up his Smart Car, a diminutive electric car that uses battery technology developed by the National Aeronautics and Space Administration, on Dec. 12. Branyon says about 200 individuals attempted to buy the gift package, and by chance, his $35,000 wire transfer was the first one to go through on the sale date of Nov. 8, giving him the opportunity to buy the gift package. It was pure luck, Branyon says. “I found out that getting wires to go places at specific times is like an asteroid hitting you on the head,” he says. Branyon says he and his wife, 348th District Judge Dana Womack of Tarrant County, will use the electric car for their three-mile daily commute to work; it’s supposed to run for 100 miles or so without needing a charge. Branyon says he and his wife will take some friends on the trip to the Kennedy Space Center to see the shuttle launch. Branyon says he’s excited about driving an economical electric car because he would like to spend less money on gasoline. That’s been on his mind for a while – he bought a Ford Escape Hybrid this past summer for that reason. Branyon says his concern right now is figuring out how to place his fleet in his garage – in addition to the Smart Car and the Escape, Branyon says he drives a Mini Cooper and his wife tools around on a Vespa.

-- Brenda Sapino Jeffreys

Get ready for your close-up

Contestants for the YouTube video contest sponsored by the State Bar of Texas have until Dec. 15 to submit entries to be eligible for the $2,500 prize. The videos must focus on the theme of justice for all.  The State Bar recently announced judges for the contest: Wallace Jefferson, chief justice of the Texas Supreme Court; Roger Cossack, legal analyst for ESPN and Court TV; Amanda Hill, a contestant on 2005’s “The Apprentice: Martha Stewart” and general counsel and director of provider and patient relations at Austin Regional Clinic; Casey Monahan, director of the Texas Music Office; and Rich Parsons, Lt. Gov. David Dewhurst’s press secretary.  Those who plan to enter the contest had better get busy shooting video.
-- Mary Alice Robbins

Nearly a dozen lawyers defect

Six labor and employment law partners in Baker & McKenzie in Dallas have jumped ship to join the Dallas office of Morgan, Lewis & Bockius. Veteran employment attorney Ronald E. Manthey, who has been licensed in Texas since 1986, leads the new team at Morgan Lewis. Other partners on that team are Ann Marie Painter, Joel S. Allen, Paulo B. McKeeby, Ellen L. Perlioni and Melissa M. Hensley. Also joining the team at Morgan Lewis are five Baker & McKenzie associates. “We still have labor and employment lawyers both here and in Houston,” says David Parham, managing partner of Baker & McKenzie’s Dallas office.  However, Parham says he doesn’t know exactly how many Baker & McKenzie lawyer work on employment matters. 
-- Mary Alice Robbins

Student loan debtor loses at 5th Circuit

A San Antonio woman who allegedly owes college student loans from the early 1990s sued the federal government in an effort to block the U.S. Department of Education from garnishing her wages. According to the 5th U.S. Circuit Court of Appeals’ Dec. 4 decision in Wagstaff  v. U.S. Department of Education, Audrey S. Wagstaff never made a single voluntary payment on six college loans she obtained to earn a degree in 1993 from Our Lady of the Lake University in San Antonio.  But, according to the 5th Circuit’s per curiam opinion, the DOE has collected some funds from Wagstaff through offsets on her federal income tax refunds and by garnishing her wages since November 2005.  In January 2005, Wagstaff, representing her self pro se, sued the DOE in the U.S. District Court for the Western District in San Antonio, alleging a claim under the Fair Debt Collection Practices Act, 15 U.S.C. §1692.  The FDCPA governs third party collection of debts. As noted in the 5th Circuit’s opinion, Wagstaff alleged that Congress waived the sovereign immunity of the United States by enacting the FDCPA in 1978 and that the DOE waived its immunity by acting through a third party – the U.S. Department of Treasury – to collect on her student loan debt. Finding that it lacked jurisdiction over Wagstaff’s claim, the district court granted the DOE’s motion for summary judgment. Wagstaff appealed to the 5th Circuit, which noted in its opinion that Wagstaff had presented an issue of first impression in this circuit. But the novelty of  the claim failed to sway 5th Circuit Judges Carolyn King, Rhesa Barksdale and James Dennis, who decided Wagstaff. The court found that, because the FDCPA does not contain an unequivocal and express waiver of sovereign immunity, the district court correctly held it lacked jurisdiction in the matter. 
-- Mary Alice Robbins

Bread suit seeks dough

Breadmaker Mrs. Baird's Bakeries Inc. allegedly discriminated on the basis of race and age by firing a black employee who took a hot-dog bun from the "discard barrel," while allegedly allowing employees who are not black to take bread from the barrel, according to a new suit. In Foley v. Mrs. Bairds Bakeries Inc., filed Dec. 5 in the U.S. District Court for the Southern District of Texas, Earl W. Foley, 57, says that he worked for Mrs. Baird's for 13 years but was fired after taking a hot dog bun from the reject barrel. He claims that his supervisor Rafael Quevedo fired him after telling him that Foley had committed a "major offense" in violation of the breadmaker's rules of conduct. Foley alleges that younger, less qualified employees replaced him after his termination. He is suing for violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. He seeks reinstatement and other damages.
-- Jonathan Fox

Judging a judge

Texas Supreme Court Chief Justice Wallace Jefferson has assigned 396th District Judge George Gallagher of Fort Worth to preside over the trial of 100th District Judge David M. McCoy of Childress. Jefferson made the assignment in a Dec. 6 letter to Gallagher, who has been on the state district court bench since January 2000.  On Nov. 29, a Childress grand jury indicted McCoy on charges of abuse of official capacity and theft by a public servant. McCoy's lawyer says he denies the allegations. Gallagher served as an assistant district attorney in Tarrant County from 1982 until 1986, when he became a partner in Fort Worth’s Hill, Beatty, Butcher & Gallagher. He says he has been board certified in criminal law by the Texas Board of Legal Specialization since 1987. But Gallagher says he has never presided over the trial of a judge.
-- Mary Alice Robbins

Lawyer returns from Pakistan

When last I spoke to Asad Rahman, a Pakistani-American and Dallas lawyer, he was preparing to board a flight for the country of his ancestors to attend his brother-in-law’s wedding. What would otherwise be a joyful occasion for him— a week-long wedding celebration — was undercut by the deteriorating political situation in Pakistan, which saw lawyers dressed in dark suits and ties being beaten by police as they protested the suspension of their constitution and the imposition of emergency rule by Pakistani President Pervez Musharraf. Rahman, a 2006 graduate of Southern Methodist University Dedman School of Law whose great-grandfather was a lawyer in Pakistan, felt personally aggrieved by Musharraf’s power grab.  He sought to investigate the situation during his two-week-journey and told Tex Parte on Nov. 12 he would report back and tell us what he had learned. On Nov. 26, Rahman returned to Dallas. Rahman now says that even though Musharraf has resigned as head of the military, he still holds tight to power as president, and his successor as head of the military is merely a Musharraf puppet. At the wedding, Rahman spoke with a Pakistani bankruptcy attorney who told him that the heightened tension between lawyers and the police was just an aggravation of longstanding problems between the groups. “The lawyers think the police are corrupt, and the police think the lawyers are corrupt,” Rahman says. “It’s rare that there is a conviction in a major case.” But attorneys who are protesting the suspension of the rule of law and the jailing of Pakistani Supreme Court justices who opposed Musharraf seem to have emboldened other segments of the population to take to the streets. “Many doctors and the student population have joined in the protests or are forming their own,” Rahman says. Rahman witnessed one street rally, he says, and the police beat his female cousin in another. “The treatment of women in these protests — the police roughing up women -- is inflaming the populace even more.” Nevertheless, Rahman noticed a distancing from the issue by many people. “The average person is just trying to go about their business and live their life,” he says. “They will get a better sense of whether things are improving when emergency rule ends and parliamentary and judicial elections are restored.”
-- Mark Donald

Multiplication of silly appellation litigation

At least three companies with unusual names are suing a Dallas-based energy company. Oil for Us Let it Gush LLC, et al. v. Energytec Inc., et al., was filed Dec. 6 in U.S. District Court for the Northern District of Texas. In that suit, Oil for Us Let it Gush LLC and Jodilast Briel has Raw Crude Zeal LLC, two single-member companies based in Middletown, N.Y., have sued Energytec Inc. and several related defendants. They allege that the defendants "have been operating a 'ponzi' scheme to defraud investors involving the offer and sale of unregistered securities." Similarly, there's Oil is the Best Friend of a Goil LLC v. Energytec Inc., et al.,  filed Dec. 3 in the same court. In that suit, Staten Island, N.Y.-based Oil is the Best Friend of a Goil LLC alleges that Energytec Inc. and its related defendants defrauded investors who purchased working interests in an "oil investment scheme" entitled "Income Program 207." All three plaintiffs are suing Energytec for various alleged violations of securities laws, fraud, breach of contract and other causes of action.
-- Jonathan Fox

Austin debt collection firm under fire

A debtor is suing an Austin-based debt-collection firm, alleging that the firm went too far in collecting a consumer debt from her. On Oct. 12, Jennifer H. Masar filed Masar v. Linebarger Goggan Blair & Sampson LLP, et al., in Travis County district court, but the suit was removed to the U.S. District Court for the Western District of Texas on Dec. 4. Masar, an Austin resident, alleges in the suit that on Nov. 8, 2006, Linebarger Goggan Blair & Sampson sued her in an Austin justice-of-the-peace court on behalf of its client North Star Capital Acquisitions LLC to collect $1,287.90 in consumer debt. After filing suit, Masar alleges that the firm "fraudulently induced" payments from her and made "misrepresentations about the legal affect of Masar signing a final judgment." Masar alleges that the final judgment that she signed gave her no credit for payments already made to the firm. The judgment also required that Masar pay 10 percent postjudgment interest, "an amount both greater than that pled and greater than that allowed by law," the suit alleges. Masar is suing for alleged violations of the federal Fair Debt Collection Practices Act and the Texas debt collection act, the common law tort of unfair debt collection and other causes of action.
-- Jonathan Fox

Jenner & Block to leave Dallas

Jenner & Block, a 495-lawyer firm with its largest office in Chicago, will close its four-lawyer Dallas outpost in early 2008, according to firm spokesman Kevin Blasko. Two of the four lawyers who had been working in that office -- partner William Stoughton and of counsel Kathy Weinberg -- will transfer to the firm's Washington, D.C., office to join the rest of the Jenner & Block government contracts practice group. Another of the four lawyers in the Dallas office already has left the firm and the fourth will leave soon, says Blasko. Texas Lawyer affiliate The National Law Journal reported on Dec. 3 that there had been little growth in the Dallas office since it opened in 2000 and that Gregory Gallopoulos, the firm's managing partner, said the Dallas office is closing principally because it made sense to have Stoughton and Weinberg working in D.C. with the rest of the government contracts practice group.
-- Miriam Rozen

Avast, mateys; piracy requires prudence

When engaging in unauthorized descrambling of satellite TV transmissions by tinkering with an integrated receiver descrambler (IRD) provided by a satellite TV company, don't later return the IRD. Echostar Satellite LLC, which provides satellite TV to subscribers under the DISH Network brand, alleges in a suit filed on Nov. 30 in U.S. District Court for the Eastern District of Texas that Dash Williams, a resident of Gladewater, did just that. In Echostar Satellite LLC v. Williams, Echostar alleges that it issued an IRD to DISH subscriber Williams, who altered the IRD and used it and other devices to receive additional premium and pay-per-view DISH programming without paying for it.  Echostar alleges Williams returned the hacked IRD on or about Nov. 30, 2005. Echostar says it tested the IRD and determined it had been modified without the company's permission. "Despite EchoStar's efforts, its security system is under constant attack by modern day pirates, who use illegal devices and other methods to defeat or circumvent EchoStar's proprietary programming signals and transmissions," the complaint claims.
-- Jonathan Fox

Second trial begins in lawyer sex scandal

The second chapter in the saga of a San Antonio husband and wife, both lawyers, who allegedly demanded money from four men with whom the woman had affairs, has begun in the 226th District Court. Tuesday was the first day of testimony in State v. Mary Roberts.  In 2005, a Bexar County grand jury indicted Ted Roberts and his wife, Mary, on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for emotional distress. Ted Roberts had threatened to file petitions under Rule 202 of the Texas Rules of Civil Procedure for possible suits against the men. A second Bexar County grand jury reindicted the couple in 2006 on charges that they unlawfully appropriated the four men’s money by deception and by coercion between Oct. 1, 2001, and April 2, 2002. In March, a jury convicted Ted Roberts of three theft charges for taking money from two of the men.  The jury sentenced Ted Roberts to five years in prison.  Now it’s Mary Roberts’ turn to face a jury.
-- Mary Alice Robbins

More respect to go around

In October, the Houston office of Weil, Gotshal & Manges and the entire New York-based firm were honored for their commitment to diversity. Weil Gotshal was the first firm -- and the first organization of any kind -- to be named a Community of Respect on both the national and local levels through the Anti-Defamation League’s Community of Respect program. Now, another firm is following in Weil's footsteps. At a ceremony Wednesday afternoon, the Houston office of Fulbright & Jaworski is scheduled to be honored as a Community of Respect. To win the designation, Fulbright implemented a policy for diversity that’s promoted throughout the firm, participated in an internship program called Genesys Works that provides work experience to underprivileged high school seniors, and started lunch-and-learn sessions for partners and employees on diversity issues. Dena Marks, ADL associate director in Houston, says at least two other Texas firms will receive the Community of Respect designation over the next few weeks. “More and more law firms are beginning to do this. It’s taking off,” says Marks. Marks says it signals that firm leaders understand how important it is to create a respectful, inclusive working atmosphere.
-- Brenda Sapino Jeffreys

Avoid reliving "The Paper Chase"

Baylor Law School students can buy immunity from being called on during classes on Dec. 6.  According to tradition at Baylor, students can purchase immunity from professors’ questions for one day each quarter.  Baylor professors set the price of immunity for each of their classes, which range from $5 to $40 for a full day of immunity in the practice court class.  It’s all for a good cause: The Student Bar Association designates a charity that will receive the proceeds from Immunity Day.  The Christmas charity is Toys for Tots.  Professors receive a list of students who purchased immunity, and students receive stickers to indicate their immune status. The sale of immunity began Tuesday on the campus in Waco. Baylor law students who want to be slackers for a day had best pay up.
-- Mary Alice Robbins

Baron & Budd opens Austin outpost

Baron & Budd announced on Dec. 3 the opening of a two-lawyer office in Austin. In addition to the Austin office, the firm now has a pair of lawyers in Beverly Hills, Calif., one in Baton Rouge, La., and 46 in Dallas. Patrick O’Connell, former chief of the Texas Attorney General’s Civil Medicaid Fraud Section, will head Baron & Budd’s Austin office. Associate Thomas Sims, previously in the firm’s Dallas office, will join him.  Overall, Baron & Budd, which settled a contentious legal battle with founding shareholder Fred Baron earlier this year, has seen lawyer numbers fall since the beginning of the decade. In 2000, the firm reported to Texas Lawyer it had 88 lawyers in Texas alone — nearly twice as many as the firm now has nationwide.
-- Miriam Rozen

Texas at the top

The University of Texas School of Law in Austin ranks first on a list of the 25 law schools enrolling the most Hispanic students in 2006, according to the Dec. 3 edition of Hispanic Outlook in Higher Education magazine. Five Texas law schools ranked among the top 25 schools based on the number of Hispanic students enrolled in 2006. Four of those Texas schools also ranked among the magazine’s top 25 law schools for the number of Hispanics receiving their first professional degrees. UT enrolled 226 Hispanic law students during 2006.  St. Mary’s University School of Law in San Antonio ranks ninth among the 25 schools with 83 law students. Texas Southern University Thurgood Marshall School of Law in Houston takes 10th position with 81 students. South Texas College of Law in Houston ranks 19th with 49 Hispanic students. The University of Houston Law Center takes 23rd position with 43 enrolled students. The four Texas law schools among the top 25 for the number of law degrees conferred in 2006 include UT, awarding 80 degrees; St. Mary’s, conferring 51 degrees; Texas Southern, granting 41 degrees; and South Texas, awarding 30 law degrees.
-- Jeanne Graham

Slow progress

The number of minority attorneys at Austin’s 25 largest firms doesn’t seem to have increased substantially despite an annual report prepared by three minority attorney organizations. The Hispanic Bar Association of Austin, the Austin Black Lawyers Association and the Austin Asian American Bar Association released the groups’ eighth annual minority hiring report card Nov. 29. According to the report, 131 -- or 11.44 percent -- of the 1,145 attorneys at the 25 firms are minorities. That’s only slightly better than the 2006 report card, which showed that 121 -- or 10.7 percent -- of the 1,136 attorneys at the 25 largest firms were minorities. As noted on this year’s report card, 54 -- or 8.94 percent -- of the 604 partners at the largest firms are minorities.  That’s an improvement over 2006, when the groups reported that 45 -- or 7 percent -- of the 573 partners in Austin’s 25 largest firms are minorities. The HBAA and ABLA began the report card in 2000, reporting that year on 14 firms.  Five firms received failing grades for their minority hiring practices in the first year of the report card, and five firms received failing grades this year. It goes without saying that some firms need to pay more attention to diversifying their attorney ranks.
-- Mary Alice Robbins

Don’t charge for my parade

Two groups that organize parades and marches in San Antonio are unhappy with a new parade ordinance approved by the San Antonio city council on Nov. 29. The new ordinance requires organizers of most public marches and other events on public streets to apply to the chief of police for a $75 procession permit and to pay for traffic control and cleanup. But the two groups  allege they can’t afford such events under the new law; they filed a federal suit on Nov. 29, claiming the ordinance  violates their right to free speech and equal protection under the First and 14th Amendments to the U.S. Constitution. The International Women’s Day March Planning Committee and the San Antonio Free Speech Coalition seek a court order to stop the city, Mayor Phil Hardberger, City Manager Sheryl Sculley and Police Chief William McManus from enforcing the ordinance. The plaintiffs allege that even though the new ordinance provides for a $3,000 discount on the cost of traffic control to groups organizing “First Amendment events,” traffic control could cost more than $20,000 for an event. Under prior law, the plaintiffs allege in the complaint in International Women’s Day March Planning Committee, et al. v City of San Antonio, et al., groups organizing “parades of a political nature” were only charged a basic permit fee. The plaintiffs allege the new ordinance is discriminatory, because groups organizing certain marches and parades will not be charged for traffic control. Those include the Diez y Seis Parade organized by the Avenida Guadalupe Association, the Martin Luther King March organized by the Martin Luther King Jr. Memorial City-County Commission and the San Antonio Marathon organized by the San Antonio Marathon Partnership. The plaintiffs allege: “To make access to public street marches available only to those with political influence or financial wealth is to profoundly limit freedom of speech and the quality of public debate in San Antonio.”
-- Brenda Sapino Jeffreys