Texas Lawyer Blog

Contempt hearing begins

Harris County District Attorney Chuck Rosenthal was “crestfallen” when two assistants told him on Nov. 26, 2007, that thousands of his e-mails that were under subpoena were missing, Scott Durfee, general counsel for the DA’s office, testified on Jan. 31. Durfee testified during a federal court hearing on a motion seeking a contempt finding and sanctions against Rosenthal for allegedly failing to produce the e-mails last November. Durfee testified that Rosenthal told him he thought the e-mails at issue were saved on the county’s e-mail system. “He had assumed that I had saved them,” Durfee testified during an all-day hearing on Jan. 31. “When I told him I had not, he was very . . . surprised.” First Assistant DA Bert Graham, who accompanied Durfee on Nov. 26, 2007, to tell Rosenthal about the missing e-mails, testified that Rosenthal said he thought the thousands of e-mails he deleted were backed up, copied or “still available” somewhere. Durfee and Graham were among four witnesses who testified at the hearing in U.S. District Judge Kenneth Hoyt’s court on the contempt motion filed by the plaintiffs against Rosenthal in Erik Adam Ibarra, et al. v. Harris County, et al., a federal civil rights suit. Before Graham and Durfee took the stand, Gary Zallar, director of information services for the DA’s office, testified that Rosenthal deleted at least a few of the e-mails on Nov. 5, 2007, just hours after Durfee compiled a log that noted that 4,126 e-mails dated between July 1, 2007, and Oct. 15, 2007 — the time period cited in the subpoena — were in Rosenthal’s e-mail account. Zallar testified that about 2,000 of the Rosenthal e-mails cannot be recovered, despite his best efforts. Rosenthal didn’t take the witness stand on Jan. 31, but the hearing was scheduled to resume on Feb. 1. The witnesses testified before a packed courtroom, after about 100 protestors who were calling for Rosenthal’s resignation outside the courthouse took seats in the courtroom for the afternoon session.
-- Brenda Sapino Jeffreys

We're from the government, and we're here to help.

The federal government filed at least 18 condemnation suits this week against Texas properties abutting the U.S.-Mexico border. The government, at the request of the Department of Homeland Security, sued the Hildalgo and Cameron County properties in rem, as well as the properties' owners, to take a "temporary interest" in the properties. In United States of America. v. 2.48 Acres of Land, et al., filed Jan. 30 in U.S. District Court for the Southern District of Texas, the government explains: "The public purpose for the taking of the temporary interest in property is to conduct surveying, testing, and other investigatory work needed to plan the proposed construction of roads, fencing, vehicle barriers, security lighting, and related structures designed to help secure the United States/Mexico border within the State of Texas." The properties affected range from 460.12 acres in size to 0.0826 acres. The suits promise "just compensation" for owners temporarily divested of their properties.
-- Jonathan Fox

Down payment on the future

More law students will have an opportunity this summer to assist low-income Texans with their legal needs in civil matters. The Texas Legal Protection Plan -- a group, prepaid, legal-services organization -- donated $50,000 to the Texas Access to Justice Commission on Jan. 25 to provide stipends for three students from each of the state’s nine law schools to work in legal aid offices for seven weeks during the summer. The students will participate in the TAJC’s internship program, which last year placed 14 students in legal aid offices in underserved areas of the state. The internship program provides future lawyers hands-on experience in working with people who need legal services but cannot afford to pay for them. Now that’s a good idea.
-- Mary Alice Robbins 

Subprime losses rock police retirement fund, suit claims

The Houston Police Officers' Pension System has lost tens of millions of dollars, because its bank and investment management company made improper investments in "subprime, mortgage-related financial derivatives," according to a new suit. In Houston Police Officers' Pension System v. State Street Bank and Trust Co. and State Street Global Advisors Inc., filed Jan. 29 in U.S. District Court for the Southern District of Texas, the pension system alleges that State Street was supposed to invest $72 million of pension assets in a conservative, low-risk mix of bonds and securities. "State Street failed to disclose that the Limited Duration Bond Fund itself would be invested almost in a single, residential mortgage sector, much of which was subprime, or that the Limited Duration Bond Fund would itself be highly leveraged and illiquid." In summer 2007, the pension system alleges, "State Street's approach produced catastrophic results," missing the target of a return of 6.7% and instead losing tens of millions of dollars. The pension system is suing State Street for breach of fiduciary duty, breach of contract, fraud and other claims.
-- Jonathan Fox

Happy workplace rule No. 1: No death threats

Leonard Secrest alleges in his original petition in a declaratory judgment action against Brazos Logistics Inc. that when he resigned, the major shareholder in Brazos Logistics threatened to “kill him” if he went to work for a competitor in the freight transportation brokerage business. Additionally, Secrest, Brazos Logistics’ former vice president for sales and operations, further alleges in his petition in Secrest, et al. v. Brazos Logistics Inc. that Brazos Logistics threatened to sue him or any third party “he may deal with” if he did not comply strictly with an employment agreement he signed in 2007. According to the petition in the suit, filed Jan. 25 in San Antonio’s 45th District Court, the employment agreement prohibits Secrest for two years from working for an entity “in the same or similar business” and performing services that “in any way” compete with Brazos Logistics. At the time he resigned, Secrest worked in Brazos Logistics’ San Antonio office. The company has offices in several different cities, including Lubbock, where its headquarters are located. The company's lawyer did not immediately return a telephone call seeking comment; however, Matt Washburn, chief financial officer for Brazos Logistics, says Secrest is subject to the noncompete agreement that he signed. But Secrest is asking the 45th District Court to declare invalid provisions in the agreement that restrict him from working for another entity in the freight transportation business anywhere within the geographic areas in which he performed services for Brazos Logistics or in engaging in any activity which “in any way” competes with his former employer. According to the petition, Brazos Logistics’ threat to sue is “injuring” Secrest in his employment with Bexar Transportation, which is another plaintiff in the suit. But what about the alleged threat to kill him?   
-- Mary Alice Robbins

The challenges of a murder-for-hire trial

One of the easiest murder cases for prosecutors to prove to a jury is the tried-and-true murder for hire. It’s usually incredibly straightforward, because the supposed hit man is almost always an undercover police officer, wired for sound. But not this time; that’s what makes a murder-for-hire trial that started today in Collin County so interesting. The Dallas Morning News reports that a husband allegedly hired a man to kill his pregnant wife, but instead of going through with the job, the alleged hit man had a change of heart and told the wife to call the police. She did. But since that time, the wife has been supportive of her husband, according to an article in the Morning News. And that could be a problem for the prosecution, according Rick Harrison, Kaufman County’s district attorney. Harrison says the case could hinge on the credibility of the alleged hit man; if it's bad, so is the state’s case, he says. And, not that they would want to, but the prosecution can force the wife to testify, says Gary Udashen, a Dallas criminal defense attorney and partner in Sorrels Udashen & Anton. There is no so-called “spousal privilege” that protects one spouse from testifying against another in this kind of case, he says. In 1995, the Texas Legislature changed Rule 504 of the Texas Rules of Evidence, altering the privilege in cases in which one spouse is accused of a crime of violence against another spouse, he says. “I think a case like that, the defense is going to have to show that the guy [the alleged hit man] had some motivation for saying this,” Udashen says. “If there’s no motivation, then the jury will probably believe it.”
-- John Council

Middleman squeezed by makeup maker

A company that distributes and resells products is standing up for its right to be an intermediary between manufacturers and retailers -- despite alleged efforts by a high-end beauty products maker, upset that its goods ended up at Costco, to "cut out the middleman."  In SPFM LP vs. Bare Escentuals Beauty Inc., filed Jan. 28 in U.S. District Court for the Western District of Texas, SPFM LP seeks a declaratory judgment that "its purchase and resale of [Bare Escentuals] products, as purchased from another middleman, in no way infringes [Bare Escentuals'] trademarks and copyrights, and is not in any way a prohibited form of unfair competition." The dispute began in 2006 when Bare Escentuals learned that some of its products were being sold at Costco without authorization by Bare Escentuals, which then sued Costco. During discovery in that suit, Bare Escentuals learned that Costco had at one point bought Bare Escentuals products from SPFM. Bare Escentuals then sought discovery from SPFM. For fear of being cut out of future transactions, middleman SPFM argues in its suit that its vendor and customer lists are trade secrets that are nondiscoverable and that Bare Escentuals cannot control the resale of its products. "[I]t is apparent," the suit alleges, "that B.E.'s legal efforts directed at SPFM are an attempt to discourage or intimidate SPFM from the legitimate business of buying and selling its products."
-- Jonathan Fox

Boost for STX consumers

St. Mary’s University School of Law in San Antonio is initiating a consumer advocacy program with the help of $100,535 from Texas Attorney General Greg Abbott. The money comes from the 2004 liquidation of San Antonio-based Mark Nutritionals, Inc. –- a company investigated by the state’s health department, the state attorney general and the Federal Trade Commission for alleged deceptive trade practices. Before filing a Chapter 7 bankruptcy, In Re: Mark Nutritionals, Inc. in U.S. Bankruptcy Court for the Western District of Texas in San Antonio, the company had marketed and sold products such as Body Solutions, claiming that customers could lose weight by simply drinking the product before bedtime. Now, South Texas residents will be able to obtain legal solutions at the San Antonio law school’s new consumer law clinic.   
-- Jeanne Graham

Doing good in the bayou city

For seven consecutive years, the Houston Bar Foundation has honored Fulbright & Jaworski for its pro bono work. At the HBF’s 25th anniversary meeting and luncheon on Jan. 24, the Houston-based firm received the award for outstanding contribution to the Houston Volunteer Lawyers Program by a large firm. In addition to pro bono awards, the HBF, the charitable wing of the Houston Bar Association, also gave awards for volunteer service and legal writing. In the pro bono area, the HBF gave outstanding contribution awards to King & Spalding in the intermediate firm category; Adams & Reese for a mid-sized firm; and Abraham Watkins Nichols Sorrels & Friend in the small firm category. Exxon Mobil Corp. received the award in the corporate law department. For the second year in a row, Lan Nguyen, a partner in Shortt & Nguyen in Houston received the outstanding contribution award for a solo practitioner, and Thomas J. Brandt, of Shell Trading Gas & Power in Houston, was honored in the firm/corporate pro bono coordinator category. Rafte & Company, an information technology consulting firm in Houston, received a service award for service in the area of strategic consulting services, legal software solutions and information technology network design. Also for the second year in a row, John W. Kelly Jr., a former general counsel for SBC Texas and AT&T Texas, was named Volunteer of the Year for the HBA’s  Dispute Resolution Center. Kate McCormick, an associate with Littler Mendelson in Houston, was honored for writing the outstanding legal article published in 2007 in The Houston Lawyer. Also on Jan. 24, Debra Tsuchiyama Baker, a partner in Connelly • Baker • Wotring in Houston, took office as HBF chairwoman.
-- Brenda Sapino Jeffreys

Litigation filling in a chocolaty coating

A Connecticut chocolate eater is suing the world's major chocolate manufacturers in a Texas federal court, alleging that several major chocolate makers have formed an international cartel "to fix, raise, maintain, and/or stabilize prices of chocolate in the worldwide chocolate market, including in the United States." In Hongach v. The Hershey Co., et al., filed Jan. 25 in U.S. District Court for the Eastern District of Texas, Lori Ann Hongach is seeking class-action status for her suit alleging antitrust violations by Hershey, Mars Inc., Masterfoods USA, Nestle SA, Nestle USA, Cadbury Schweppes PLC, Cadbury Schweppes Americas and Cadbury Adams USA LLC. The suit alleges that Hershey, Mars, Nestle and Cadbury control almost 50 percent of the worldwide market for chocolate and 80 percent of the U.S. chocolate market. According to the suit, the chocolate makers allegedly conspired unlawfully in 2006 to raise prices in unison, blaming the price hike on increased costs. Barry C. Barnett, a Dallas-based partner at Susman Godfrey, is one of five attorneys representing the plaintiff. Hearing about this suit makes me hungry.
-- Jonathan Fox

New adventure

After spending almost 34 years at Austin-based Brown McCarroll, environmental attorney Kinnan Golemon has gone out on his own. Golemon, 69, says he opened KG Strategies LLC on Jan. 1 and will continue to advise clients on regulatory and legislative matters in the environmental arena. “I think I’m old enough to be on my own,” Golemon says. Golemon says the he has tried to make periodic changes in his life during the 40 years he’s practiced law. However, Golemon says he will continue to maintain his office with Brown McCarroll, where he served as the managing partner from September 1989 until the spring of 1994. He is leasing space within the firm’s offices for KG Strategies. “With the years he’s had with the firm, it’s just natural for him to continue to be here,” Robert J. Werner, Brown McCarroll’s current managing partner, says of Golemon. Werner says Brown McCarroll makes such arrangements with attorneys who are former managing partners of the firm. Golemon says he continues to represent clients he had while a partner in Brown McCarroll, including Devon Energy Corp. and Gulf Coast Waste Disposal Authority. Austin solo Lisa Anderson, who formerly was an associate, partner and of counsel at Brown McCarroll, says she has worked with Golemon for 20 years and will be affiliated with KG Strategies. “We’re pretty much partners without being partners,” Anderson says, noting that she and Golemon share some clients. Anderson says Golemon is “really good at understanding clients’ business.” Golemon says part of his representation of clients will involve lobbying the Texas Legislature, which he has been doing since 1969. “Democracy is a messy business, but I want to be in the middle of the mess,” he says.
-- Mary Alice Robbins

The presidential race -- no, not that one, the other one

It’s the hand-shaking, back-slapping season again. At its Jan. 25 meeting in Grapevine, the State Bar of Texas board of directors nominated for president-elect Claude Ducloux, a principal in Austin’s Hill, Ducloux, Carnes & Hopper, and Roland K. Johnson, managing shareholder of Fort Worth’s Harris, Finley & Bogle. Ducloux, a 1976 graduate of St. Mary’s University School of Law, is board certified in civil trial law and appellate law by the Texas Board of Legal Specialization.  His leadership positions have included serving as president of the Austin Bar Association and as chairman of the Texas Center for Legal Ethics and Professionalism. Ducloux also is a founder and member of the Bar & Grill Singers, a group that raises money for pro bono legal services. Johnson, a 1979 graduate of Baylor University School of Law, also is board certified in civil trial law by the TBLS.  His leadership positions have included serving as president of the Tarrant County Bar Association and as chairman of the State Bar’s Professionalism Committee.  Johnson also is an adjunct professor at Texas Wesleyan University of Law.  The two candidates will be able to campaign outside their offices between March 1 and April 1, when the Bar will distribute ballots for the election. Bar members will be able to cast ballots until May 1.
-- Mary Alice Robbins

Baron’s bucks

For years, the top source of campaign cash in Texas has been Republicans and tort reformers. But in 2007, the No. 2 individual campaign donor is decidedly neither Republican nor tort-reform friendly. Fred Baron, founder of Dallas’ Baron & Budd and one of Democratic presidential candidate John Edwards' biggest boosters in Texas, gave $969,000, mostly to a Texas Democratic Trust that he founded, according to an article in the Houston Chronicle. Baron says in the article the reason for the generosity is to help rebuild the Democratic Party --- which has lagged in fundraising behind Republican and issue- oriented groups. No. 1 on the individual donor list in 2007 was Houston homebuilder and tort reform advocate Bob Perry, who gave just over $1 million, mostly to Republican candidates and causes.
-- John Council

Fort Worth murder case on film

When the AFI Dallas International Film Festival crackles to life on March 27, it’ll feature a fictional big-screen story that played out in real life in a Tarrant County courtroom five years earlier. The movie, "Stuck," starring Mena Suvari and Stephen Rea, is based on the real story of Chante Mallard of Fort Worth. In 2001, Mallard was driving home late at night when she hit Gregory Biggs, a homeless man, with her car. Biggs was stuck in Mallard’s windshield, but the nurse’s aide kept on driving, parked the car in her garage and went inside her home, according to testimony in the case.  She did not notify police or get Biggs any medical attention and had a friend help her dump Biggs' body in a park two hours later after he died. A jury convicted Mallard of murder in 2003 and sentenced her to 50 years in prison. When the film premiered last year at the Toronto International Film Festival, the synopsis of the film quoted a prosecutor in the case who said: “Maybe we’ve just redefined inhumanity here.”  That prosecutor is Richard Alpert, a longtime Tarrant County Assistant District Attorney, who was the lead attorney for the state in Texas v. Mallard. Alpert says he wasn’t consulted about the film by its producers because they really didn’t need to --- every detail of the shocking case was reported by the local and national press, he says. “It was such a high-profile case and they’ve got all of the information they need,’’ Alpert says. But he’s curious enough about the film to see it, he says. “I get the impression that the victim in their fictional case survived and was more communicative than the victim in our case was,” Alpert says. “They’re taking the  . . . pleading for his life kind of way, which was not factually what we had in our case.” But Alpert says he probably won’t make the trip to Dallas to see the film. He’ll wait for Netflix to bring the movie to him.

-- John Council

Mortgage lending fight goes to court

In Dream House Mortgage Corp. v. Lawyers Title Insurance Corp., et al., filed Jan. 21 in the U.S. District Court for the Southern District of Texas, Dream House Mortgage, a Rhode Island business, is suing Virginia-based Lawyers Title Insurance and Houston-based Greater Texas Title Co. Inc. This is what Dream House Mortgage claims happened: "GTTC conducted two closings on the same date. The Properties were first sold to an undisclosed purchaser, then immediately resold or 'flipped' to the Borrowers at the inflated prices, as funded by Dream House. . . . [T]he proceeds for each 'flip' sale -- which represented the difference between the original amount the undisclosed purchaser paid for the Properties and the amount that the Borrowers 'agreed' to pay for the Properties -- resulted in a significant amount of excess monies funded by Dream House." GTTC, the suit further alleges, "disbursed all or a part of the Loan proceeds funded by Dream House, including the excess monies, to persons not listed in the HUD-1 Settlement Statements. . . .  The disbursement of the proceeds was not in accordance with the Closing Instructions with which GTTC had agreed to comply."
-- Jonathan Fox

When not to play the Nazi card

In trial No. 2 of a wrongful death suit, a nursing home stipulated its liability for the death of a 90-year-old woman who died in 2000 after an employee of the facility dropped her. The first jury trial resulted in $356,000 in actual damages and $362,000 in punitive damages for the plaintiffs, the woman’s estate and her two sons. But the 4th Court of Appeals in San Antonio reversed the judgment and remanded the suit for a new trial, because of improperly admitted evidence of previous falls at the nursing home. During closing arguments at the second trial in Bexar County Probate Court No. 2, the plaintiffs’ attorney compared the attempt by the nursing home’s lawyer to minimize damages in the suit to Germany’s World War II T-4 Project, in which elderly and impaired people were used in medical experiments and killed. The jury awarded more than $1.1 million in damages to the plaintiffs. The nursing home appealed, but the 4th Court affirmed in a 2-1 decision in September 2006. So the nursing home petitioned for review by the Texas Supreme Court, which was more sympathetic. The high court today reversed the 4th Court’s judgment and remanded the case to Probate Court No. 2 for yet another trial. In its per curiam opinion in Living Centers of Texas Inc., et al. v. Penalver, the Supreme Court stated: “The argument struck at the integrity of the courts by utilizing an argument that was improper, unsupported and uninvited.” That’s a wordy way of saying the argument was out of bounds.
-- Mary Alice Robbins

Profiting from mistakes?

A new suit has shed light on the weird Web sites that appear when Internet users type in an incorrect Web address. Microsoft Corp. is suing a Dallas-based business, claiming that it registers Web sites with names similar to Microsoft's trademarks to profit from Internet users who type in misspelled or incorrect Web addresses. In Microsoft Corp. v. Dauben Inc. D/B/A Texas International Property Associates, filed Jan. 22 in the U.S. District Court for the Northern District of Texas, Microsoft alleges that Dauben created Web sites with names similar to Microsoft products such as Age of Empires, Encarta, Halo, Hotmail, MSN, Outlook, PowerPoint and XBox. "Defendant uses the Infringing Domain Names to profit from the Microsoft marks," the plaintiff alleges. "Defendant receives a payment when Internet users click on one or more links of advertisements on the websites of the Infringing Domain Names." Microsoft is suing Dauben, claiming  violation of the Anti-Cybersquatting Consumer Protection Act and trademark infringement.
-- Jonathan Fox

More fun than a barrel of monkeys

Can monkeys sue? That's the question answered by Sarah, et al. v. Primarily Primates Inc., a San Antonio Court of Appeals decision issued Jan. 16. According to the opinion, the facts of the case involved nine chimpanzees and three new-world monkeys used for research purposes at Ohio State University. In January 2006, Ohio State entered into an agreement with Primarily Primates Inc. (PPI), a primate sanctuary that takes in monkeys and other exotic animals from research institutions and the illegal pet trade, for PPI to "to accept ownership of the Chimps and Monkeys and to provide for their lifetime care." In February 2006, Ohio State shipped the primates to Texas, but shortly after their arrival, two died and a third escaped. On April 27, 2006, attorneys purporting to act on behalf of the nine remaining primates sued PPI for breach of contract and a declaratory judgment ordering transfer of the animals to a new facility. On May 4, 2006, the same attorneys attempted to add three people concerned about the primates as plaintiffs. A trial judge considered the claims, even appointing a master in chancery who recommended that the primates be moved to a Louisiana sanctuary, but ultimately dismissed the suit for lack of standing. The 4th Court's opinion affirmed the dismissal. Although Texas Trust Code §112.037 allows a trust to "be created to provide for the care of an animal alive during the settlor's lifetime, the court found that the contract between Ohio State and PPI did not create such a trust. Thus, the court found that the primates and their supporters lacked standing under §112.037 to bring their claims.
-- Jonathan Fox

Seeing (warm) red

Before Texas firm Locke Liddell & Sapp merged with Chicago-based Lord Bissell & Brook in October 2007 to form the alliteratively named Locke Lord Bissell & Liddell, both firms used blue in their logos. Locke Liddell’s logo included dark blue, light blue and green. But on Jan. 22, the 4-month-old Locke Lord Bissell & Liddell left blue behind and launched a new logo in a “warm red” color. “We wanted something different from what we each had,” says Julie Gilbert, chief communications officer for the 717-lawyer firm. In the firm’s view, according to a press release, the design and color of the new logo is “smart, modern and professional.”  The firm also launched an advertising campaign on Jan. 22 to build its new brand. The campaign’s slogan: “Delivering more than the expected: Practical wisdom, trusted advice.” The firm hired Grady, Campbell Inc., a graphic design and communications firm in Chicago, to help with the design work and the advertising campaign. Gilbert declines to say how much the firm spent working up the new logo and the campaign, but she says it’s more than Locke Liddell traditionally spent on those items. It’s important to get the firm’s new name out, she says. “It helps brand us. It helps people see the national image we have,” she says. While members of the firm’s executive committee and board of directors helped select the new logo and slogan, the executive committee made the call, Gilbert says.

-- Brenda Sapino Jeffreys

And the winners are . . .

Gib Walton, State Bar of Texas president, on Jan. 22 announced the winners of the Bar’s YouTube video contest, “Lone Star Stories: Texans on Justice.”  Natalie Jordan of Dallas won the $2,500 prize in the age 18 and older category for her video, “Texans on Justice.”  Jordan, 24, graduated from the University of Texas in 2005 and is employed by Quin Mathews Films, a film company in Dallas. The Bar will present two $2,500 scholarships in the under-18 category.  Brothers Raphael Chaumette, 10, and Alexandre Chaumette, 7, of Sugar Land won for their video, “The Promise of Justice for All.”  The two brothers are students at Sugar Land’s Commonwealth Elementary School. Huey Fischer, a 15-year-old sophomore at Rockport-Fulton High School, also won in the under-18 category for “The Murder of Ima Bacon: A Tale of Justice in Texas.”  The winners will receive their awards at a Jan. 25 event scheduled in conjunction with the State Bar board of directors’ meeting in Grapevine.  The contest, which drew 10 video entries, is a highlight of the State Bar’s “Let’s Do Justice for Texas” public education initiative this year.
-- Mary Alice Robbins

Ewww

Here’s a new protocol at the Court of Criminal Appeals that you may have missed: Pleadings filed with the court must now be free and clear of “hazardous materials.” The order, which went into effect on Dec. 17, 2007, authorizes the clerk of the court to dispose of any papers that “are smeared with or contain corrosive or dangerous chemicals, blood, food, feces, urine or other bodily fluids. Such items constitute a health hazard to court employees and shall be disposed of by the clerk for that reason.” I understand why high court officials don’t want to handle pleadings that are written on the equivalent of used toilet paper. But what about the food requirement? Somewhere, a hungry lawyer preparing a habeas corpus petition with Cheetos-stained fingers is likely threatening his client’s freedom because of his choice of snack food.
-- John Council

Fall of the Roe-man empire?

In a landmark decision 35 years ago today, the U.S. Supreme Court ruled in Roe v. Wade that state laws criminalizing abortion except when the mother’s life was at risk violated the due process clause of the 14th Amendment . On this anniversary, the Center for Reproductive Rights in New York City is voicing concern that abortion might be criminalized in parts of the country. One reason for  that  concern is the U.S. Supreme Court’s April 2007 decision in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. §1531. Joe Pojman, executive director of the Texas Alliance for Life, says he believes Texas easily could return to its pre-Roe status if the Supreme Court throws out its 1973 decision in Roe v. Wade. Pojman says the Texas Legislature has not expressly repealed the pre-Roe statute, which remains on the books at Revised Civil Statutes 4512.1-4512.4. But Dionne Scott, spokeswoman for the Center for Reproduction Rights, says the 5th U.S. Circuit Court of Appeals held in 2004’s McCarvey v. Hill -- the case that the woman who became known as Jane Roe brought to reopen Roe v. Wade -- that the Legislature’s enactment of post-Roe legislation regulating the practice of abortion repealed Texas’ old anti-abortion statutes by implication. If the Supreme Court overrules Roe, it appears likely that a court battle will ensue to see which viewpoint is correct. 
-- Mary Alice Robbins

Xmas system crash leads to Xbox suit

Who says that video game players are addicts who tune out the rest of the world? A few Xbox players have found a new pastime: suing the maker of their gaming system. A Houston attorney is seeking to bring a class action against Microsoft Corp., after Xbox LIVE, a Microsoft gaming platform that allows Xbox players worldwide to play video games against each other, crashed in December. In Smith, et al. v. Microsoft Corp., filed Jan. 4 in U.S. District Court for the Southern District of Texas, three Xbox players seeking class-action status sued Microsoft after the subscription Internet service crashed due to heavy holiday demand. "Microsoft knew the increase in subscriptions would increase game-play on its servers yet failed to provide adequate access and service to XBOX Live and its subscribers," the suit states. Just how many people do the plaintiffs hope to join in a class action? According to the suit, 8 million Xbox LIVE subscribers. And what are the damages? "Plaintiffs purchased XBOX Live accounts in expectation of enhancing their gaming experience via online play, usually costing each Plaintiff between $30 and $50 per year for a subscription." Shannon Smith, Keith A. Kay and Orlando Perez, the three named plaintiffs, are suing for breach of contract, breach of warranty, negligent misrepresentation and attorneys' fees. They are represented by Houston attorney Jason A. Gibson of the Gibson Law Firm.
-- Jonathan Fox

DBA to present MLK Justice Award

About a decade ago, it was hard for Dallasites to ignore John Wiley Price. I remember sitting in traffic downtown as the longtime Dallas county commissioner did his patented slow-walk protest by leading a group of like-minded placard-toting followers in a baby-step march across an intersection near a business Price had a problem with. I can’t remember his issue, but Price certainly got my attention that day. And on Monday Jan. 21, Price will get more attention when the Dallas Bar Association awards him the Martin Luther King Jr. Justice Award. Price has served the residents of District 3 for 23 years. “On every Martin Luther King Day, the Dallas Bar seeks out and recognizes those heroes with our MLK Justice Award. It is a privilege to so honor Commissioner Price now,” says DBA President Frank E. Stevenson II. Hats off to Price, whom no one would ever accuse of lacking passion for causes he believes in. I just wonder how many steps it will take Price to walk across the room to receive the award.

-- John Council

Reunited and it feels so good

Burleson Cooke, a nearly 3-year-old energy firm in Houston, has merged with the Burton Law Firm of Houston, and partner Randy Burton is now head of Burleson Cooke’s energy services practice group. The merger was effective in November 2007, but managing partner Richard Burleson says Burton and associate Hannah Heinz won’t move into Burleson Cooke’s offices until later this month, when an office expansion is completed. Burton says he is a long-ago partner of Burleson’s at another firm, and glad to be reunited with him. Burton says he ran into Burleson and his wife at a mutual friend’s funeral about six months ago, and a casual breakfast meeting led to discussions about merging the firms. “We called it a merger because Randy had such a great practice,” Burleson says. Burton says he brings several clients with him to Burleson Cooke, including Houston’s Vetco Gray, a General Electric company; Tesco Corp. of Houston; and Dyna-Drill Technologies Inc. of Houston. “What’s really attractive to me is working with Burleson Cooke, virtually all of the lawyers there – 20 of us -- are at my level. We’ve all got 25 years of experience in the oil and gas business or more, and it provides my clients with a much broader level of experience in areas that I don’t practice in like securities law [and] patent law,” Burton says. Burton is also founder of Justice for Children, a national organization that provides legal advocacy for abused children.

-- Brenda Sapino Jeffreys

Picture this

Sugar Land tax attorney Dean Hrbacek, a Republican candidate for the 22nd congressional seat, is a busy guy. In fact, he was too busy to sit for a photograph for a mailer that his campaign sent to voters earlier this week. So his campaign consultants at the Patriot Group in Austin matched Hrbacek’s head shot with someone else’s body, confirms Scott Broschart, Hrbacek’s campaign manager. Why didn’t Hrbacek pose for the photo?  “He was too busy knocking on doors,” Broschart says. Broschart says the Hrbacek campaign has knocked on about 8,000 doors over the past couple of months. Hrbacek, of Hrbacek & Associates and a former Sugar Land mayor, did not immediately return a telephone call seeking comment. He is one of 10 candidates seeking the Republican nomination to run against U.S. Rep. Nick Lampson, D-Stafford. In the future, Hrbacek’s campaign literature could show his actual physique. Broschart says he was able to get Hrbacek with a photographer on Jan. 14. 
-- Mary Alice Robbins

Arizona official sued . . . in Texas?

Suing an Arizona state official in a Texas federal court seems just bound for a quick dismissal. But Stroman Realty Inc., a Conroe, Texas-based company that brokers the resale of timeshare interests, tried it anyway. On Jan. 11, the 5th U.S. Circuit Court of Appeals issued its opinion in Stroman Realty Inc. v. Wercinski, finding that Stroman could not sue Sam Wercinski, Arizona's real estate commissioner, in Texas court due to a lack of personal jurisdiction. Stroman, which had brokered transactions between out-of-state timeshare buyers and Arizona sellers, originally sued Wercinski's predecessor Elaine Richardson after she sent the Texas company a cease-and-desist ordering Stroman to stop doing business in Arizona, because its agents lacked Arizona real estate licenses. Eventually, the cease-and-desist order became a final, nonappealable decision. Stroman sued Richardson in U.S. District Court for the Southern District of Texas, but the district court dismissed the suit on the ground of res judicata. Stroman appealed, but the 5th Circuit again nixed the suit for lack of personal jurisdiction. "[T]he totality of the Commissioner's contacts with Texas," the 5th Circuit stated, "involves a cease and desist order and correspondence with Stroman's attorneys. Although the Commissioner has 'reached out' to assert her authority over Stroman's Arizona-related business activities, she has not 'purposefully availed' herself of the benefits of Texas law like someone actually 'doing business' in Texas."
-- Jonathan Fox

Campaigns and country music

Mindy Montford -- one of four Democrats running for Travis County district attorney, along with Rosemary Lehmberg, Gary Cobb and Rick Reed -- has drawn big names for her campaign kickoff today at the Nuevo Leon in Austin.  Mark White and Dolph Briscoe, the only living former Democratic governors of Texas, and Grammy Award-winning singer-songwriter Rick Trevino are scheduled to appear at Montford’s campaign event.  Maybe Trevino will sing “Better in Texas” for Montford and her supporters.
-- Mary Alice Robbins

Enough to settle?

At least 55,000 Vioxx plaintiffs took a first step toward applying for some settlement money from Merck & Co. Inc. by meeting a deadline at midnight on Jan. 15 to register to participate in a settlement hashed out between a group of plaintiffs lawyers and Merck. The settlement, announced in November 2007, calls for the New Jersey-based Merck to pay $4.85 billion into a settlement fund. Merck won’t fund the settlement unless a minimum of 85 percent of registered plaintiffs accept it, but with so many plaintiffs registering their claims by Jan. 15, Merck is confident the settlement will be funded, says Kent Jarrell, a spokesman for Merck. “We expect to meet and exceed the 85 percent threshold,” Jarrell says, noting that Merck believes as many as 60,000 plaintiffs may register. On Jan. 18, Jarrell says, Merck will report a final count to U.S. District Judge Eldon E. Fallon of the Eastern District of Louisiana in New Orleans, who presides over In Re: Vioxx Products Liability Litigation, the federal multidistrict Vioxx litigation. Vioxx plaintiffs are a long way from getting any cash. “Right now people are simply required to register their existing claims. This is not a deadline for opting in or in effect opting out. The deadlines for that start on Feb. 28 through June,” Jarrell says. Individuals who may be eligible for a share of the settlement pot are those who suffered heart attacks, ischemic strokes or sudden cardiac arrests as a result of ingesting Vioxx, a painkiller.  Merck withdrew Vioxx from the market in 2004.
-- Brenda Sapino Jeffreys

Pointers for pointers, fees for Fido?

Do you have clients who want to leave a portion of their estate to a beloved pet? Well, if you’re in the Lubbock area on Friday, Jan. 18, you can pick up some pointers from Texas Tech University School of Law Professor Gerry W. Beyer. He's the guest luncheon speaker for the monthly meeting of the Lubbock County Bar Association, and his topic is “Estate Planning for Non-Human Family Members.” Beyer joined the law school’s faculty in 2005 as Governor Preston E. Smith Regents Professor of Law and has written books and articles about wills, trusts and estates. 
-- Jeanne Graham

Jumping Jacks

Trial lawyer Tommy Jacks closed Jacks Law Firm in Austin and joined Fish & Richardson’s Austin office, where he will do commercial business litigation. Jacks, a one-time partner with Houston plaintiff’s lawyer Richard Mithoff in Mithoff & Jacks  who made a name as one of Texas’ leading plaintiff’s personal injury attorneys, says his practice has changed. He is now primarily doing commercial litigation, although often on the plaintiff’s side. “It just made good sense to align myself with a larger firm where I will get to look at cases for companies that likely wouldn’t hire a very small firm to handle their litigation,” Jacks says. Jacks says he joined Fish & Richardson as counsel in December 2007, but because he spent a lot of time in December closing down his small Austin firm, he’s just this month full time at his new firm. Jacks, who moved to Fish & Richardson with associate Mark Guerrero, says his goal is to help the Boston-based firm develop a contingent-fee and hybrid-fee practice in the business litigation area. “Fish & Richardson has been doing contingent-fee litigation in patent cases with a lot of success, and they are interested in doing that more in general business litigation cases as well,” Jacks says. “I know how to do that.” Jacks says he is a longtime friend of Alan Albright, the managing principal of the Fish & Richardson office in Austin. “We were actually at breakfast one morning and just got to talking and out of that conversation grew more conversations,” Jacks says, in explaining how he landed at his new firm. He says he decided to consider a move to a larger firm after his wife, Laura, left Jacks Law Firm in the summer of 2007 to go in house at Advanced Micro Devices in Austin. Jacks brought several clients with him, including Austin’s Cielo Wind Power. Albright could not be reached immediately for comment.
-- Brenda Sapino Jeffreys

Therapy test tussle

The Federation of State Boards of Physical Therapy, a lobbying group made up of state physical therapy licensing authorities that also administers a national licensing exam for the field, is suing Houston-based Hare Krishna Education Consultants (HKEC) and Dr. Ankush Bhargava for allegedly making unauthorized copies or derivative works of the federation's test preparation materials. In Federation of State Boards of Physical Therapy v. Hare Krishna Education Consultants, et al., filed Jan. 4 in U.S. District Court for the Southern District of Texas, the federation claims that HKEC and Bhargava violated its copyright by reselling material from the federation's online Practice Exam and Assessment Tool, which features 400 sample test questions, on HKEC's web site. According to the suit, HKEC offers a "global turn-key solution to individuals who seek to become licensed physical therapists in the United States" by offering test prep courses in the United States and India. As a result of HKEC's alleged copyright violation, the federation says that it has "suffered substantial damages."
-- Jonathan Fox

CCA nixes out-of-court narrative

In a 5-4 decision today, the Texas Court of Criminal Appeals held that a law enforcement officer can testify in court to what he saw, did, heard, smelled and felt at the scene when he stopped a driver suspected of driving while intoxicated. But the CCA majority held in Fischer v. State that the lawman cannot substitute or augment his in-court testimony with a videotape from his patrol car on which he dictated his factual observations at the scene. Judge Cathy Cochran wrote for the majority: “This calculated narrative in an adversarial setting was a ‘speaking offense report.’ It was not the type of unreflective, street-corner statement that the present sense exception to the hearsay rule is designed to allow.” The CCA affirmed the 14th Court of Appeals, which held in 2006 that a lawman may not avoid the restrictions on the evidentiary use of an offense report by dictating the substance of that report.  Judge Barbara Hervey wrote a dissenting opinion in which Presiding Judge Sharon Keller and Judges Lawrence Meyers and Mike Keasler joined. Under the majority’s decision, the officer’s statements must be under oath and subject to cross-examination. And that’s a good idea.
-- Mary Alice Robbins

Big punitives but no actual damages?

Punitive damage awards across the country went down again last year, according to this Bloomberg report. For years, appellate courts have had a habit of chopping away at punitives like a lumberjack in a forest -- which makes this Jan. 2 decision from the very conservative 5th U.S. Circuit Court of Appeals all the more interesting. Elgie Abner, et al. v. The Kansas City Southern Railroad Co. involved a Louisiana case in which a jury awarded eight African-American employees $125,000 in punitive damages but no actual damages after they allegedly endured some pretty vile racial discrimination. The trial judge later added one dollar in nominal actual damages when entering a judgment in the case. The employer appealed the verdict to the 5th Circuit, arguing that awarding punitive damages in connection with nominal compensatory damages violated the 14th Amendment. Although it was painful for the 5th Circuit judges, writing they were  “urged to upset the judgment,” they didn’t. Instead the court recognized that it is sometimes hard to quantify compensatory damages in employment discrimination cases when harassment does not affect an employee’s pay or promotions. The 5th Circuit also found that because the punitive award was under the damage cap amount Congress set in conjunction with Title VII Civil Rights Act of 1964, it was permissible, affirming the trial court’s judgment. It’s a weird ruling, but not an unwarranted one for eight employees who had endured a hostile working environment that allegedly included racially motivated graffiti and a wire hanger displayed in workshop that was bent in the form of a noose.
-- John Council

Texas AG says no to MySpace agreement

On Jan. 14, all but one state attorney general joined MySpace, a division of Fox Interactive Media Inc., in signing an agreement meant to protect young users of the social networking site from online predators. Texas Attorney General Greg Abbott declined to sign the joint statement, which sets out principles of social networking related to online safety tools, technology, education and law enforcement. Among other things, under the agreement MySpace will assign users under age 16 private profiles to prevent strangers for obtaining information about them; users over 18 can designate their profiles as private to under-18 users; and over-18 users cannot add under-16 users as friends unless they know the younger user’s last name or e-mail address. But Abbott wrote in a Jan. 14 letter to Chris DeWolfe, MySpace’s chief executive officer, that the Texas Office of the Attorney General does not believe MySpace.com – or any other social networking site – can adequately protect minors until an effective age verification system is available. “Although we believe that MySpace.com, along with other state attorneys general, is working to protect social network users, we cannot endorse any initiative that fails to implement a reliable age verification system.  Doing so would give Texas parents and their children a false sense of security,” Abbott wrote. Parry Aftab, a New Jersey attorney  and the executive director of WiredSafety.org, a children’s Internet safety organization, says MySpace should look at the possibilities for developing an age verification system. But Aftab says she does not think there is a way to have such a system without putting under-18 users at risk. Aftab says age verification requires a database of kids, and that database would be available to hackers. The MySpace agreement is “a beginning,” but it contains broad language, Aftab says. “It doesn’t mean anything until they start acting on it.”
-- Mary Alice Robbins

Registered sex offender who pleaded denied DNA test

Eric Stephen Young sought post-conviction DNA testing. The problem: He was never convicted. In dismissing Young's application for the test, the 5th Court of Appeals in Dallas found that Texas law limits the right to seek post-conviction DNA testing to the convicted. It sounds like a logical and straightforward decision, but Young's case has another wrinkle to it. According to the facts set forth in State v. Young, after Young's indictment for aggravated sexual assault, he entered a guilty plea on June 14, 1989. Then Young successfully completed 10 years of deferred adjudication probation. Thus, Young was never convicted, the opinion stated. But according to the 5th Court, Young argued that he should be treated as a convicted person, because "he is treated as such" under Texas sex offender registration requirements. The 5th Court, however, gave no credence to Young's argument. "[T]he legislature did not contemplate affording chapter 64 relief to a person who was given deferred adjudication," the court stated.
-- Jonathan Fox

McKool Smith hangs shingle on Park Avenue

Continuing its focus on commercial and intellectual property litigation, Texas-based McKool Smith has opened an office in New York City. “Our new office in New York will build upon the firm’s national litigation and trial practice,” firm founder Mike McKool Jr. of Dallas says in a Jan. 15 news release announcing the opening of the New York office. Robert A. Cote, formerly an IP litigation partner in Orrick, Herrington & Sutcliffe in New York, is heading up McKool Smith’s newest office. McKool says in an interview that the firm has leased space for 17 lawyers and has an option for space to house 12 more in the firm's new offices on Park Avenue. According to the news release, McKool Smith has more than 90 attorneys handling commercial and intellectual property litigation for national and international clients. The opening of McKool Smith’s New York office is part of the firm’s expansion outside of Texas. In September 2007, McKool Smith established an office in Washington, D.C. 
-- Mary Alice Robbins

T&K remembers the Alamo City

Thompson & Knight, which has U.S. offices in Dallas, Houston, Fort Worth, Austin and New York, opened a new office in San Antonio Monday that will focus on complex litigation, including white-collar crime defense. Three former federal prosecutors will staff the office. Michael McCrum and Marina Garcia Marmolejo, both counsel in the firm’s trial practice group, will work in San Antonio, and trial partner Jason Davis will split his time between Austin and San Antonio. McCrum, who had been a San Antonio solo before he joined Thompson & Knight in August 2007, was an assistant U.S. attorney in the Western District of Texas. Marmolejo recently joined the firm from Laredo, where she was an assistant U.S. attorney in the Southern District of Texas. Davis, a one-time associate with Thompson & Knight, returned to the firm in 2007 to build the firm’s white-collar crime defense practice. He came from Law Office of Jason Davis in San Antonio, but he is a former assistant U.S. attorney in the Western District of Texas. James Cousar, managing partner of the firm’s Austin office, says 430-lawyer Thompson & Knight looked at San Antonio on and off for several years but never saw a good fit for the firm until now. The firm doesn’t immediately plan to expand the San Antonio office with other practice areas, he says. “It’s an excellent location for a white-collar crime practice,” Cousar says. “Much of it relates to border transactions, U.S./Mexico border, banking, insurance, commercial investment, trade, governmental. For one reason or another, the Western District and the border seem to be a major source of white-collar crime practice, and that’s what we are hoping to focus on.” Cousar says he will manage the new San Antonio office from Austin. Thompson & Knight has offices and alliances in Algiers, London, Mexico City, Monterrey, Rio de Janeiro, Paris, and Vitoria, Brazil.
-- Brenda Sapino Jeffreys

Sale price for capital defense: only $63 per hour

When is $190,000 not enough money for a legal fee? Apparently when a lawyer spends 3,000 hours working on a case and ends up saving the client’s life in a federal death penalty trial. That’s the situation Houston attorney Craig Washington found himself in when he was presented two checks totaling nearly $190,000 for three years of out-of-court work. Washington represented Tyrone Williams, a truck driver who was tried two times in connection with the smuggling deaths of 19 illegal immigrants transported in the back of his tractor-trailer. Washington told the Houston Chronicle he will not cash those checks: “I am not accepting that. It’s altogether inappropriate,” said Washington, who is Williams' appointed lawyer. “I would rather accept nothing.” Washington spent a total of four years representing Williams, which included two trials, two verdicts --- an incomplete verdict and a life sentence --- and numerous interlocutory appeals to the 5th U.S. Circuit Court of Appeals.
-- John Council

Another reason to double check filings

A Houston firm that sued a former client to recoup $47,372.59 in attorneys' fees and settled the suit for $22,500 and a lien on the debtor's house lost the lien, because the firm did not credit a $500 payment made by the debtor on the firm's abstract of judgment filed in the real property records. According to facts presented in the 1st Court of Appeals' decision in Gary E. Patterson & Associates PC v. Holub, et al., the dispute began when the firm Gary E. Patterson & Associates originally sued David D. Thomas to recoup more than $47,000 in attorneys' fees. On Jan. 4, 1996, the firm and Thomas reached an agreement for Thomas to pay $22,500 in monthly installments of $300 to settle the suit. At the settlement meeting, Thomas paid $500, leaving a balance of $22,000. Thomas made no further payments. Based on the settlement, a trial court issued a judgment in the firm's favor for $22,500. In March 2006, the firm filed an abstract of the judgment against Thomas' home. Thomas sold his home in 2000 to Ronald W. and Mary R. Holub. In December 2001, the firm sued the Holubs and their title company, seeking damages and a court declaration that the Holubs' deed was void. The firm planned to foreclose on the home. But a trial court blocked those plans, and on Jan. 10, the 1st Court of Appeals affirmed the trial court's rulings in the case. The firm's abstract of judgment was defective, the 1st Court stated, because under Texas Property Code §52.003, an abstract of judgment must show "the amount for which the judgment was rendered and the balance due." The firm's abstract failed to do that, the 1st Court stated. "Courts strictly construe the requirement that the abstract of judgment show the amount for which the judgment was rendered and the balance due thereon," the 1st Court stated. "The mere fact that a debtor tenders payment pursuant to settlement before the agreed judgment is signed by the court -- when the agreed judgment is required by the settlement and awards the full settlement amount -- does not exempt the abstract issued on that agreed judgment from having to show the amount of that payment as a credit."
-- Jonathan Fox

No appeal for dangerous dogs

If a municipal court affirms the local dogcatcher’s finding that your dogs are dangerous, you may not be able to appeal, according to In Re: Loban, a Jan. 4 decision by Fort Worth’s 2nd Court of Appeals. The facts of the case, according to the opinion, involved a decision by a city of Grapevine animal control officer to declare two dogs owned by Jason Loban to be dangerous. The upshot of the declaration was that Loban had to pay a registration fee of $50 for each dog and provide proof of vaccination. Contesting the finding, Loban sought a hearing by the Grapevine municipal court, which affirmed the officer’s declarations. Loban then tried to appeal to County Criminal Court No. 10, but Judge Phil Sorrells of that court instructed him to appeal instead to a county court-at-law. But when Loban tried that tack, Judge Vincent G. Sprinkle of Tarrant County Court-at-Law No. 3 also claimed that he lacked jurisdiction over the appeal. Rather than deem one of the courts to be Loban’s proper forum, the 2nd Court found that he had no forum. Under Texas Government Code §30.00014(a), the 2nd Court stated, a county court-at-law acquires jurisdiction over an appeal from a municipal court of record only if there is no county criminal court, county criminal court of appeal or municipal court of appeal in the county. Because Tarrant County does have county criminal courts, Tarrant County Court at Law No. 3 lacked jurisdiction over Loban's appeal. But this provision did not help Loban or his dogs. Under §25.2223(a), county criminal courts in Tarrant County lack jurisdiction over civil matters, the 2nd Court stated. “This gap in the statutory right of appeal,” the 2nd Court stated, “is apparently attributable to the fact that municipal courts previously had only criminal jurisdiction.”
-- Jonathan Fox

Insurance company shamed

There’s no doubt that in this age of tort reform, insurance companies are confident any time they walk into a Texas courtroom to litigate a case. But Big Insurance better watch its step when crossing the threshold of Dallas’ George L. Allen Sr. Courts Building if a recent order by a state district judge is any indication. On Jan. 9, 68th District Judge Martin Hoffman lowered the boom on Texas Mutual Insurance Co. after it filed a suit challenging a decision by the Texas Workers’ Compensation Commission that found that a worker sustained a compensable injury. In his order in Texas Mutual Insurance Co. v. Juan Narvaez, Hoffman sanctioned the insurance company for committing “fraud on this court and the defendant by falsifying a critical medical record, and then using that record throughout discovery, depositions and trial. This fraudulent conduct was committed knowingly and intentionally by agents and representatives of Texas Mutual Insurance Company.” Not only did Hoffman order that the insurance company pay Narvaez $30,000, but he also ordered that it post his sanctions order on its Web site, www.texasmutual.com, within seven days of the order and keep it up for 180 days on the site’s home page. Ouch.
-- John Council

Indicted and now suspended

Under indictment for allegedly forging the signatures of three judges on bonds for his clients, Austin criminal defense lawyer Bruce P. Garrison’s law practice is temporarily on hold.  Judge Gisela Triana of Austin’s 200th District Court signed a suspension order Jan. 7.  The order requires Garrison, a solo, to stop practicing law immediately and to surrender any current client files to the court-appointed custodian, Commission on Lawyer Discipline Chairwoman Betty Blackwell.  According to the order, Blackwell will notify Garrison’s clients of the suspension and will arrange for the delivery of clients’ papers, files or other property.  On Nov. 27, 2007, a Travis County grand jury indicted Garrison on three counts of tampering with a governmental record stemming from his alleged forgery of the judges’ signatures and one count of intent to deliver a controlled substance.  Garrison’s attorney Joshua Sagert did not immediately return a call seeking comment but said in an earlier interview that Garrison intends to plead not guilty. 
-- Mary Alice Robbins

Deportation dilemma

Robert Salmon is a Jamaican who has lived in the United States since May 1984. Much of his family also lives in the United States as legal permanent residents. After New York state authorities convicted him of an aggravated felony, however, immigration authorities began deportation proceedings against him while he was incarcerated in state prison. On Oct. 31, 2006, an immigration court in Napanock, N.Y., ordered him deported. On Dec. 27, 2006, state authorities transferred Salmon to the custody of federal immigration officials, who eventually transferred him to the Port Isabel Detention Center in Los Fresnos, Texas. But a problem has since cropped up: Jamaica will not take back its citizen. Thus, after a full year of imprisonment in immigration lockups, Salmon has filed a pro se writ of habeas corpus seeking his immediate release, in which he lays out the preceding facts. Salmon says that his continued imprisonment violates his constitutional rights and federal law. Six months "is a presumptively reasonable amount of time to allow the government to accomplish an alien's removal," Salmon says.
-- Jonathan Fox

Paging Jimmy Carter

Two Christian aid organizations sharing the name Habitat for Humanity and the mission of building affordable housing may need the peacekeeping services of the most notable Habitat volunteer, former President Jimmy Carter, to mediate an acrimonious dispute between the parties. On Jan. 4, Habitat for Humanity of San Antonio Inc. (HFHSA) sued Atlanta-based Habitat for Humanity International (HFHI) Inc., in U.S. District Court for the Western District of Texas, seeking a declaratory judgment that it can continue to use the Habitat name without signing an allegedly "onerous and overreaching" franchise agreement with HFHI. Founded in 1976, HFHSA claims that in 1978 it became the first local organization to work with HFHI but that the two organizations have always operated independently. HFHSA says that it began to use the Habitat name in 1982. In 2006, the suit alleges that HFHI, after a leadership change, notified its local partners that to continue to use the Habitat name, they were required to sign commercial franchise agreements with HFHI. HFHI's proposed franchise agreement, HFHSA alleges, would give HFHSA "fewer rights than a McDonald's franchise." Under the agreement, the suit alleges, HFHSA would allegedly have to surrender control of its bank accounts, donations, buildings and other property to HFHI. In the suit, HFHSA claims that it can keep its Habitat moniker without signing the agreement, because it has common-law rights in the name it has used for more than 20 years.
-- Jonathan Fox

Why retire if you have lots of energy?

One day after he retired from Houston-based ConocoPhillips Co., Stephen F. Gates rejoined Mayer Brown, this time in the firm’s Houston office. Gates, former senior vice president legal and general counsel at ConocoPhillips, started work on Jan. 3 as a special counsel at Mayer Brown in the corporate/energy practice group. Before Gates became GC of ConocoPhillips in 2003, he was a partner for two years in the Chicago office of Mayer Brown. Before that, Gates worked for 23 years for BP, where he was executive vice president and group chief of staff, and Amoco, where he was vice president and general counsel. On Sept. 1, 2007, Gates stepped down as GC at ConocoPhillips, and he has spent the last four months at the energy company in a transitional role, assisting Janet Langford Kelly, the new senior vice president legal, general counsel and corporate secretary. In a statement this morning, Mike Niebruegge, the partner-in-charge of the Houston office of Mayer Brown, said Gates is well known and highly respected in the legal and energy arenas in Houston and nationally. “He adds depth to an already strong and diversified energy practice group, and both Mayer Brown and our clients will benefit from his return to the firm,” Niebruegge said.
-- Brenda Sapino Jeffreys

In her honor

Marie Trahan, an African-American receptionist for 25 years in the home office of Houston ’s Susman Godfrey, died last November from cancer. As "the voice of Susman Godfrey," she was more familiar to visitors of the firm than most partners and associates, says firm spokeswoman Amy Tinsley. In her memory, the firm announced Jan. 8 that it will endow a scholarship to be awarded each year to an African-American law student and resident of Texas. The scholarship will be administered by the Dallas-based J.L. Turner Legal Association (JLTLA), an African-American bar association that administers the Barbara Jordan Scholarship, the Fred Finch Scholarship and the Judge’s Scholarship. According to a JLTLA news release, the firm informed the JLTLA Foundation  on Dec. 7, 2007, that the firm had voted to grant a minimum of $30,000 to the foundation for scholarships. Over the next several weeks, contributions from attorneys and employees at Susman Godfrey increased the final amount to $103,305. Chanler Langham, an associate with the firm, benefited from a previous JLTLA Foundation scholarship, according to JLTLA. Langham did not immediately return a telephone call seeking comment. In a press release, Steve Susman, a founder of the firm, stated, “As an African American, Ms. Trahan was certainly aware of the need for more diversity in our profession.  I can think of no better way to honor her memory and her important contributions to the firm than by supporting this ongoing cause.” 
-- Miriam Rozen

No fees for you

The 5th U.S. Circuit Court of Appeals ruled Jan. 4 that a man who didn’t respond to record companies’ efforts to contact him about the alleged copyright infringement of their music is not entitled to attorney’s fees, even though he is the prevailing party in the suit the companies filed against him. According to the per curiam opinion in Virgin Records America, Inc., et al. v. Cliff Thompson, the record companies spent six months trying to contact Thompson after determining that someone using his Internet account allegedly used a file-sharing program to illegally distribute copies of their records. In 2006, the companies sued Thompson in the U.S. District Court for the Western District in San Antonio. As noted in the 5th Circuit’s opinion, Thompson filed an answer and a counterclaim requesting attorney’s fees and accusing the companies of engaging in “sue first, talk later” litigation. After the companies moved to dismiss the counterclaim, Thompson revealed in his response to the motion that the person most likely to have downloaded the companies’ music was his adult daughter, but he refused to disclose her name, the 5th Circuit noted in the opinion.  Through their own efforts, the companies identified Thompson’s daughter and moved to dismiss the suit, but Thompson reiterated his demand for attorney’s fees. In a November 2006 order, U.S. District Judge Orlando Garcia dismissed the suit against Thompson but denied his request for attorney’s fees, finding that the companies’ bringing the suit was proper. The 5th Circuit agreed.
-- Mary Alice Robbins