Texas Lawyer Blog

No relief for former Dallas lawman

Former Dallas police officer Mark Delapaz, a central figure in Dallas’ so-called fake-drugs scandal, could soon be behind prison bars. On Feb. 27, the Texas Court of Criminal Appeals denied Delapaz’s petition for discretionary review of his 2005 conviction for tampering with physical evidence, a third-degree felony. The charge stemmed from allegations that Delapaz lied to a municipal judge on a search warrant affidavit. The Dallas scandal involved the arrests of dozens of people, many of them Mexican immigrants, whom police falsely accused of trafficking drugs in 2001. [See "Report Metes Out Criticism, Praise, in Fake-Drugs Scandal," Texas Lawyer, May 16, 2005, page 1.] The “drugs” seized in many cases turned out to be ground billiard chalk or gypsum. F. Clinton Broden, Delapaz’s attorney and a partner in Dallas’ Broden & Mickelsen, says the former police officer has remained out of prison on bond pending resolution of his appeal. Asked whether the CCA’s denial of PDR is the final step for Delapaz in the appellate process, Broden says, “We’re considering our options, but likely it is.” 
-- Mary Alice Robbins

Network of firms to meet in Austin

Firms from around the nation and the world will gather in Austin beginning Feb. 28 for a meeting of the State Capital Global Law Firm Group, an association of independent firms. Patton Lochridge, managing partner of Austin’s McGinnis, Lochridge & Kilgore, which is hosting the meeting, says he’s expecting representatives of firms from almost all 50 states as well as representatives of about 15 South American and European firms. Gaylord Armstrong, another partner in McGinnis, Lochridge, says the late Joe Kilgore, one of the firm’s founding partners and a U.S. congressman from 1955 to 1965, joined with other lawyers who had served in the U.S. House, U.S. Senate and on one state’s supreme court to form the group in 1988. Armstrong says the group first consisted of politically active firms in each of the 50 state capitals, but other firms from major cities have joined. The purpose of forming the group, Armstrong says, was to provide the member firms the names of firms to which they could refer clients who might need help with legislative, regulatory or political matters in other states. Lochridge says the meeting in Austin will focus on climate change. State Sen. Kirk Watson, D-Austin, will be among the presenters for the meeting, speaking on electronic waste. Lochridge says a number of other speakers will make presentations, and the participants will break up into smaller practice area groups.  “It’s a great way to communicate about what’s going on in other countries and around the world,” Lochridge says.
-- Mary Alice Robbins

Dallas lawyers host Hillary

Debbie Branson and Frank L. Branson of the The Law Offices of Frank L. Branson in Dallas have invited 400 friends to their University Park home on Feb. 29 for cocktails and a visit with U.S. senator and Democratic presidential candidate Hillary Clinton. Debbie Branson says, growing up in Arkansas as the daughter of a retired Democratic judge for that state's highest court, she has known the Clintons “forever.” She also says she hosted events earlier in the campaign season to raise money for the former first lady, but the campaign needs more money for the primaries, so she and her husband are reaching out to all their friends and opening their  home -- which measures 9,950 square feet, according to  Dallas County Appraisal District records. Sen. Clinton's speechifying, rather than a band, will provide the entertainment for the evening.
-- Miriam Rozen

Scout's honor

  He’s a Distinguished Eagle Scout who’s been actively involved in the Boy Scouts of America since 1947, when he became a cub scout (see photo) in Brooklyn, N.Y. He’s a member of the board of the Sam Houston Area Council and on the board of the Boy Scouts of America. He’s received the Silver Antelope award, which is the highest recognition given to a volunteer. But U.S. District Judge David Hittner of Houston says he was very surprised to learn on Feb. 25 that he’s a special honoree at the 2008 Scout Fair, scheduled for April in Houston. At a board meeting on Feb. 25, the board of the Sam Houston Area Council informed Hittner that the council will dedicate the 2008 Scout Fair in his honor. It’s a first for the council in 71 years of Scout Fair history. Hittner says scouting has been important to him throughout his life. He says his father died when he was 15, and scouting provided him with activities and an outlet. “It teaches great values, and it’s been a guide to me, and they helped me out when I was a youth,” says Hittner, who says he camped with scouts most recently in November 2007. “I was actually out at Camp Strake, trooping through the bushes last November. It’s been a long time since I was in a canoe paddling across a lake at midnight,” he says.
-- Brenda Sapino Jeffreys

DIY design dings Dem

Texas State Sen. Kirk Watson's hapless moment has not been forgotten. The Democrat from Austin, former mayor of that city and supporter of U.S. Sen. Barack Obama's bid for the presidency, had his name bandied about after the debate between the Democrats in Austin last week, following U.S. Sen. Hillary Clinton's mention of his performance on the MSNBC show "Hardball." Despite show host Chris Matthews' repeated requests, Watson could not muster up a mention of a single legislative accomplishment of his chosen candidate. To add insult to injury, now available on the Web are T-shirts memorializing Watson's ignominious moment.
-- Miriam Rozen

Going to the big show

Congratulations go to the mock trial teams from Baylor University School of Law and St. Mary’s University School of Law. The two teams will go to the National Trial Competition championship scheduled next month in Austin. The teams from Baylor and St. Mary’s emerged as co-champions of the regional tournament held earlier this month in Lubbock. Hosted by the Texas Tech University School of Law, the regional tournament featured 22 teams from 11 law schools in Texas and Louisiana. Members of Baylor’s winning team are Matt Cole and Cameron Weldon. St. Mary’s winning team members are Jeff Starnes, Allison Skipper and Megan David. Starnes, a third-year law student at St. Mary’s, also won the best advocate award in the regional competition. 
-- Mary Alice Robbins

Bad way to start the day

Pearl Inthasone of San Antonio had a rude awakening when she woke up to discover her home was flooded with raw sewage, and she wants her home insurer to pay her claim for the repairs. In Barber, et al. v. Allstate Texas Lloyd’s Insurance Co., filed on Oct. 23, 2007, in Bexar County District Court but removed to U.S. District Court for the Western District of Texas on Feb. 21, Inthasone, who the suit identifies as the home's occupant, and Marlin Barber, who paid the insurance premiums, allege the following facts: Inthasone woke up on Nov. 24, 2006, to a “terrible odor” in her residence. She soon discovered that nearly the entire house was flooded with raw sewage, causing extensive damage. The San Antonio River Authority determined that a sewer line blockage caused the overflow. A contractor came and pumped the sewage out. An Allstate adjuster visited the property, the suit alleges, but “Allstate has failed to acknowledge the claim in writing and has wholly failed to accept or deny these claims.” Inthasone and Barber claim that their policy had the proper endorsement for coverage of the discharge. Inthasone and Barber are suing Allstate for breach of contract, violations of the Texas Insurance Code, violations of the Texas Deceptive Trade Practices Act, and breach of the duty of good faith and fair dealing. They seek $250,000 in damages and attorneys’ fees from Allstate.
-- Jonathan Fox

Pack up the primates

A group of monkeys that spawned a barrel full of litigation is returning to Texas. According to the San Antonio Express-News, a state district judge on Feb. 15 ruled that six chimpanzees transported from Primarily Primates, a San Antonio monkey sanctuary, to a Louisiana sanctuary — as a result of a since-dismissed suit brought by the Texas attorney general alleging substandard care at Primarily Primates — must be returned to the Texas facility. The order by Judge Michael Peden of the 285th District Court follows the Jan. 16 dismissal by the 4th Court of Appeals of a separate suit brought by attorneys purporting to act on behalf of the monkeys. The 4th Court found that the primates and their supporters lacked standing to bring their claims. Before the monkeys first arrived in Texas, they were used for research purposes at Ohio State University. Primarily Primates says it has improved conditions at its sanctuary, according to the Express-News article.
-- Jonathan Fox

Need a secretary? Or an associate?

Winstead cut about 30 support staff this month, including 19 at the firm’s Dallas headquarters office, in what Chairman Denis Braham calls a “staff rightsizing.” Braham says the firm’s ratio of staff to lawyers was “out of whack” when compared to other firms of similar size, and the firm needed to adjust it. The staffers were mostly secretaries and floaters who had been working in seven offices, he says. "They stayed here longer than we needed them -- all good people, I would add,” he says. Also, Braham notes, 11 associates have either left the firm following their annual reviews or will do so. “The long-term view was they weren’t going to fit here, so we made adjustments. We do that pretty regularly, as do all law firms,” he says. Braham says that despite the staffing reductions and the associate departures, the 300-lawyer firm plans expansion this year. “We’ve built in room for physical expansion for the offices that we have, and we are aggressively going to be hiring. This is not about consolidating the firm into some smaller structure; it’s making sure we are well-positioned,” he says, adding that the firm is bullish on the North Texas, Austin/Central Texas, and Houston/Gulf Coast regions.
-- Brenda Sapino Jeffreys

AT&T refuses to hang up, firm alleges

A Houston-based firm is suing AT&T after the phone company allegedly overcharged the firm approximately $200,000 for a frame-relay line in a South Texas office that the firm has not used since fall 2002. In Daw & Ray LLP v. AT&T Corp., filed on Jan. 15 in Hidalgo County's 370th District Court but removed to the U.S. District Court for the Southern District of Texas on Feb. 19, the firm alleges that in 1991 it hired AT&T to provide telecommunications to its Houston and Weslaco offices. In 2001, the firm relocated its Weslaco office to McAllen, as alleged in the original petition. In fall 2002, the firm claims it instructed AT&T to cease all services to the Weslaco offices. But in May 2004, the firm says it discovered a frame-relay line in the Weslaco office had not been disconnected and that AT&T continued to charge the firm. Daw & Ray alleges that it again contacted AT&T and instructed it to cut services to the old office. AT&T represented to the firm that it had disconnected the unwanted service, the suit alleges. In August 2007, the firm allegedly discovered that only part of the services had been disconnected and that charges had continued to accrue. The firm is suing AT&T for negligence and fraud. It seeks damages for the costs of the unwanted telecommunications line, as well as exemplary damages.
-- Jonathan Fox

Off the bench and unable to practice

A Panhandle judge has avoided prosecution on charges of theft by a public servant and abuse of official capacity, both felonies.  But 100th District Judge David McCoy must resign from the bench and will never be able to practice law again under an agreement reached with the Texas Office of the Attorney General.  The agreement, which 396th District Judge George Gallagher of Fort Worth, sitting by appointment, approved Feb. 21, requires McCoy to resign and forfeit his law license, effective March 15.  Under the agreement, McCoy can never again run for or serve in any public office and must pay $20,000 in restitution, which will go to the 100th Judicial District Juvenile Probation Office.  The agreement further provides that the OAG will not prosecute McCoy for any case involving him that the attorney general has investigated.  In November 2007, a Childress County grand jury indicted McCoy and the State Commission on Judicial Conduct suspended him without pay.  The charges stemmed from allegations that McCoy made it a condition of a public employee’s employment to hire McCoy’s wife and also required the same employee to help take care of his wife, who has Lou Gehrig’s disease.  Stuart Messer, district attorney for the 100th District, asked the OAG to handle the case. Tom Kelley, an OAG spokesman, declines comment about the case. Canyon solo William E. “Bill” Kelly III, McCoy’s attorney, did not immediately return a telephone call seeking comment. McCoy, a former district attorney, has served on the 100th District Court bench since 1993. His resignation gives Gov. Rick Perry an opportunity to appoint a judge for the district, which covers Carson, Childress, Collingsworth, Donley and Hall counties. McCoy, a Democrat, had filed for re-election. Messer, the only Republican candidate for the post, says he will apply to the governor’s office for the appointment. 
-- Mary Alice Robbins

Lawyers in the spin room after the debate

In CNN's spin room after the Feb. 21 debate between Democratic presidential candidates U.S. Sens. Hillary Clinton and Barack Obama, both sides claimed victory. But lawyer-turned-politician state Sen. Kirk Watson, D-Austin, the former mayor of the debate's host city, also received some attention. That's because Watson was the un-named subject of a barb delivered by Clinton during the debate. "There are differences between our records and accomplishments," Clinton said in response to a question about her claims that Obama is about words, not actions. "I was somewhat amused the other night, when on one of the TV shows, one of Sen. Obama's supporters, couldn't," Clinton said, not quite finishing her thought. The former First Lady's reference was nonetheless clear to anyone who had received a widely dispatched e-mail from the Republican Party of Texas that included a transcript of an interview in which MSNBC host Chris Matthews asked guest Watson, an Obama supporter, to name his candidate's legislative accomplishments. Watson couldn't. "No, I'm not going to be able to do that tonight," Watson told Matthews on Feb. 20. Former Texas Land Commissioner Gary Mauro, a Clinton supporter, who appeared in the spin room after the debate for his candidate, said, "I think that the Watson episode is a defining moment in the campaign. The fact is that anyone who hears Barack Obama speak gets goose bumps. I've gotten goose bumps when I've heard him speak. But goose bumps is not what it's all about. And Kirk Watson is a very smart man and he couldn't even find a frigging specific about Obama." State Sen. Royce West, D-Dallas, an Obama supporter, reacted to Clinton's reference to Watson differently. "I thought it was in very poor taste. Watson has a great reputation," West said. Watson could not be reached for comment. Another Texas lawyer assigned to the spin room for his candidate, Obama, was state Rep. Rafael Anchia, D-Dallas, a partner in Haynes and Boone. Anchia spent most of his time talking to Hispanic media representatives. He also explained why he believes Obama made his case for his immigration policies during the debate. "He was clear about his comprehensive plan and about bringing people out of the shadows," Anchia said. He noted Obama also got in a pitch for dual-language education programs, a cause Anchia has championed as a school board member.

-- Miriam Rozen

No prison time

There will be no prison time for the San Antonio woman who had sexual liaisons with four men whom her husband subsequently threatened with litigation unless they compensated him for his emotional distress.  On Dec. 10, 2007, a Bexar County jury convicted Mary Roberts, a solo practitioner, of five counts of theft by deception or coercion for her part in extracting money from the four men with whom she had the affairs.  Judge Sid Harle, of San Antonio’s 226th District Court, today assessed Roberts’ punishment at 10 years' probation and 400 hours of community service. In 2007, Harle sentenced Mary Roberts’ husband Ted, also a San Antonio lawyer, to five years in prison.  A Bexar County jury found Ted Roberts guilty on two counts of theft and one count of a continuing course and scheme to commit theft of $100,000 for threatening litigation against two of the men who had affairs with his wife, telling them he would give the money they paid him to a charity and then later converting that money to his own use.  As alleged in the indictments against the couple, the offenses occurred between Oct. 1, 2001, and April 2, 2002.  Alan Brown, one of Mary Roberts’ attorneys and a partner in San Antonio’s Brown & Norton, says she will appeal her conviction. Michael McCrum, of counsel at Thompson & Knight in San Antonio and another attorney representing Mary Roberts, says, “We’re satisfied with the sentence.  We do not agree this is a crime.”  Ted Roberts had threatened to file petitions under Rule 202 of the Texas Rules of Civil Procedure for possible suits against the four men who had affairs with his wife unless they agreed to compensate him. McCrum says an appellate court should decide whether that constitutes a crime.  Ted Roberts filed an appeal that is pending before San Antonio’s 4th Court of Appeals. Tamara Strauch, a Bexar County assistant district attorney who prosecuted the couple, says prosecutors asked Harle to sentence Mary Roberts to prison.  But Harle decided on probation based on the evidence he heard at Mary Roberts’ trial, Strauch says.
-- Mary Alice Robbins

A referral that paid off

The referral of a case to Houston attorney Randy Sorrels in December 2005 has resulted in a boost in funding available this year to the State Bar of Texas Client Security Fund, which compensates clients victimized by dishonest lawyers. The State Bar Lawyer Referral Information Service (LRIS) referred to Sorrels a case stemming from the alcohol poisoning death of University of Texas freshman Jack Phoummarath, who died Dec. 10, 2005, after consuming too much alcohol , allegedly as a result of a fraternity hazing incident.  Sorrels, a partner in Houston’s Abraham, Watkins, Nichols, Sorrels & Friend, represents Phoummarath’s family in a wrongful-death suit, Phoummarath v. Lambda Phi Epsilon, et al., filed in Houston’s 334th District Court.  Sorrels says the family is settling the suit against the fraternity and other defendants, but that his firm already has sent the State Bar about $160,000 for the referral fee.  Lawyers who receive LRIS referrals pay 10 percent of any fees earned of $500 or more to the State Bar.  To ensure that the referral fee from the Phoummarath case -- the largest fee that LRIS has ever generated -- would have maximum impact, the State Bar board of directors voted Jan. 25 to transfer money from the bar’s general fund to the Client Security Fund, according to State Bar spokeswoman Kim Davey.  The Phoummarath case also has produced another benefit.  As part of the settlement, fraternity members participated in the production of an educational anti-hazing video designed for use by colleges and universities.  The video can be found at inmemoryofjack.com.
-- Mary Alice Robbins

TLR filing snafu

Tort reform foes may have chortled with glee today. The Quorum Report Web site notes that Texas Secretary of State Phil Wilson involuntarily dissolved Texans for Lawsuit Reform on Feb. 13.  But TLR will have the last laugh.  Scott Haywood, spokesman for Wilson, says the secretary of state dissolved TLR for failing to file a periodic report required of nonprofit organizations.  According to Haywood, an organization must report its current address and officers.  Haywood says the secretary of state’s office notified TLR in September 2007 that the organization had not filed the required report.    When TLR failed to reply, the secretary of state sent a letter Oct. 12, 2007, that advised the organization it had 120 days to file the report to avoid involuntary dissolution, Haywood says.  The secretary of state did not receive the report by Feb. 11, and dissolved TLR, he says.  “It’s not all that uncommon for it to happen,” Haywood says. Sherry Sylvester, TLR’s spokeswoman, says in a written statement that the secretary of state’s office failed to send the notice to the address listed in TLR’s articles of incorporation.  “We therefore did not receive the notice required by law.  In any event, we have filed the required paperwork for reinstatement with that office,” Sylvester says in the statement. As noted in the statement, the Texans for Lawsuit Reform Political Action Committee and the Texans for Lawsuit Reform Foundation are separate entities and were not affected by the administrative error.  That means TLR will not have to stop, even temporarily, making campaign contributions to candidates who favor more tort reforms.
-- Mary Alice Robbins

Still undecided: Is magistrate a judge?

Without issuing an opinion, on Feb. 15 the Texas Supreme Court denied Austin solo Karyl Krug’s emergency petition for a writ of mandamus against the 3rd Court of Appeals.  Krug, a Democratic candidate for Austin’s 427th District Court, originally filed a writ petition with the state Supreme Court on Jan. 28, seeking to force the Texas Ethics Commission to take action before the March 4 primary on Krug’s allegation that primary opponent Jim Coronado, Travis County’s criminal magistrate, is violating state election law by calling himself a judge in campaign advertising. Coronado has said that he is a judge and is not violating Texas Election Code Section 255.006 by calling himself a judge. After the Supreme Court denied her petition, Krug filed In Re: Karyl Anderson Krug on Feb. 4.  The 3rd Court denied the petition within two hours after Krug filed it.  Krug filed another petition with the Supreme Court on Feb. 6.  Despite all the courts’ denials, it is still unknown whether it is a misrepresentation for an appointed court officer, such as a criminal magistrate, to call himself a judge.  Hopefully, the Ethics Commission will address the issue at some point and put this matter to rest.
-- Mary Alice Robbins

Welcome to Beantown

Locke Lord Bissell & Liddell, which formed in October 2007 when Texas firm Locke Liddell & Sapp merged with Chicago-based Lord, Bissell & Brook, opened an office in Boston on Feb. 20. With the new Boston outpost, 723-lawyer Locke Lord has 12 offices, including Austin, Dallas and Houston. Stephen K. Fogg is the managing partner of the new Boston office, joined by partner Jeffrey Warren. Fogg, a corporate attorney, came from Day Pitney’s Boston office, while Warren had been a co-manager and general counsel for Eaglestone Investment Partners, a private equity firm with offices in Los Angeles and Boston. “Adding this Boston office demonstrates Locke Lord’s allegiance to the Northeastern markets and demonstrates our expanding national platform,” Locke Lord chairwoman Jerry Clements of Austin says in a written statement. The Texas-based firm has several private equity, insurance and real estate clients in the Boston area, says Julie Gilbert, the firm’s chief communications officer.

-- Brenda Sapino Jeffreys

Rosenthal's reasons

The reason Chuck Rosenthal resigned as Harris County district attorney on Feb. 15 depends on whom you ask. Today, a spokesman for the Texas Office of the Attorney General says Rosenthal resigned last Friday after the AG’s office informed the DA's defense attorney, Ron Woods, that the AG’s office would file a removal action against Rosenthal this week. “Rather than fight it in state court, Rosenthal resigned,” says Jerry Strickland, a spokesman for the AG’s office. The AG’s office had been investigating Rosenthal’s actions in connection with a series of e-mails that became public recently to see if the state should seek to remove the DA from office under Chapter 87 of the Local Government Code. Due to a conflict, Harris County Attorney Mike Stafford had asked the AG’s office to investigate. But Woods, a solo practitioner in Houston, has a different reason why Rosenthal resigned. Woods says Strickland’s statement is accurate, “but at the same time, they said if he were to resign before any removal petition was filed, it would be closed as a removal.” Woods, hired by Rosenthal for the investigation by the AG’s office, says, “We are both saying the same thing. It’s not a contradiction.” Woods says Rosenthal resigned because the AG’s investigation was disrupting operations at the DA’s office, and those distractions would increase if the AG’s office sued to remove Rosenthal from office. Woods says he met with representatives of the AG’s office on Feb. 13, and with Rosenthal on Feb. 14, when the DA decided to resign. Stafford, who asked the AG’s office for assistance with the Rosenthal investigation because his office is representing and defending Harris County in an underlying civil right suit, can shed little light on the issue. “We have not been informed by the AG’s office that they were or were not going to file a removal action. And that’s why they were brought in, to make these decisions independently,” Stafford says. The e-mails at issue were made public as part of discovery in Erik Adam Ibarra, et al. v. Harris County, which is pending in the U.S. District Court for the Southern District of Texas. While Rosenthal, DA since 2001, resigned on Feb. 15, Gov. Rick Perry didn’t accept the resignation until Feb. 19. That’s the day Rosenthal’s brief resignation letter arrived at the governor’s office in Austin. The letter reads:

Dear Governor Perry:
I am resigning my post as the elected district attorney of Harris County, Texas effective 5:00 P.M. this date.
It has been a great honor to represent the people of Harris County both as an assistant district attorney and in my current capacity for nearly thirty-one years.
The 560 employees of this office are instrumental in protecting the 3.7 million residents of this county. Please pick my successor carefully.

Sincerely,
Charles A. Rosenthal, Jr.

Bill Delmore, chief of the legal services bureau at the DA’s office, says that until Perry appoints a successor, Rosenthal will continue to be the signatory for all official actions of the DA’s office. During that period, Delmore says, Rosenthal will continue to be compensated, but he will not come into the office. Krista Piferrer, deputy press secretary for Perry, says the governor does not know when he will appoint someone.

-- Brenda Sapino Jeffreys and Miriam Rozen

Convictions tossed for Crawford protesters

The 10th Court of Appeals in Waco on Feb. 13 reversed the convictions of two Iraq War protesters who participated in a 2005 protest in Crawford, home to President George W. Bush's ranch. According to the facts set out in Hardy v. State, Emily Hardy and Hiram Myers participated in a protest organized by Cindy Sheehan outside of the Bush ranch in an encampment dubbed “Camp Casey.” Along with other protesters, Hardy and Myers set up a tent in a ditch along the side of the road, despite an ordinance banning roadside tents passed by the McLennan County Commissioners Court in response to the protests. Initially, the local sheriff's department arrested 12 people for violating the ban but did not charge anyone with an offense. Then on April 14, 2006, “about 40 protesters returned to Camp Casey I to again engage in civil disobedience to challenge the ordinance prohibiting the setting up of a tent in a ditch,” according to the opinion. “The protesters believed that erecting tents in the ditches had significant symbolic meaning” representing the antiwar movement to the world. Sheriff's deputies arrested Hardy and Myers when they failed to obey orders to leave their tent. Authorities then charged Hardy and Myers with violating Texas Penal Code §42.03, which prohibits obstruction of a roadway. A jury found Hardy and Myers guilty of the offense. But in a 2-1 opinion, the 10th Court found insufficient evidence to support the convictions. “[T]he tent in the ditch,” the court stated, “was not an immediate potential obstruction because the tent was not in the roadway and there were no cars on the road. . . . As protesters, Hardy and Myers were required to restrain or limit their conduct to not obstruct the street or make passage unreasonably hazardous or inconvenient, and they complied with that by staying in the ditch on the day of the demonstration.” Chief Justice Tom Gray of the 10th Court dissented from the judgment without a written opinion.

-- Jonathan Fox

One for all

Locke Lord Bissell & Liddell wants to make it clear that the firm has a single associate pay system, says Jerry Clements, chairwoman of the 721-lawyer firm that formed with the October 2007 merger of Texas' Locke Liddell & Sapp and Chicago-based Lord, Bissell & Brook. Clements says she did send a 2008 compensation memo to former Locke Liddell associates on Feb. 5, but she also had sent one in late December 2007 to former Lord, Bissell associates. “There is clearly one structure that applies to everybody,” she says, noting that the firm’s management is in the process of integrating the two associate compensation systems. “The thought that folks would think that we would have two different compensation structures within one firm would be a little bit amazing to me,” says Clements, a partner in Austin. Clements says the firm sent two memos because Lord, Bissell associates were accustomed to receiving a salary memo in December, and Locke Liddell associates usually received one by early February. Clements says the February memo addressed to “Legacy LLS associates” was more detailed, however, because management had settled on a new deferred-compensation component by then. “What’s causing the blog upset is that the Lord memo did not include the deferred compensation piece because we had not decided on it yet,” says Clements, referring to a Feb. 12 posting on the Above the Law blog. Since Feb. 5, management has been tweaking the associate compensation system, Clements says. The firm sent an updated compensation memo to all 285 associates on Feb. 14, spokeswoman Julie Gilbert says. She declines to provide a copy, saying it’s confidential.

-- Brenda Sapino Jeffreys

Contempt of Congress

The U.S. House of Representatives voted on Feb. 14 to cite Dallas lawyer Harriet Miers for contempt of Congress for failing to testify before the House Judiciary Subcommittee on Commercial and Administrative Law about the firing of several U.S. attorneys in 2006, when she was White House counsel. Miers, a one-time U.S. Supreme Court justice nominee, is a partner in Locke Lord Bissell & Liddell in Dallas. The House resolution approved on Feb. 14 calls for the U.S. attorney of the District of Columbia, following 2 U.S.C. §§192 and 194,  to bring the matter of Miers' refusal before a grand jury. Former White House Chief of Staff Josh Bolton was also cited for contempt of Congress for failing to provide documents to the House Judiciary Committee. Mike Mukasey, the U.S. attorney general, had previously told reporters that, since the Justice Department’s own counsel had advised the White House that Miers, along with others in the West Wing, could refuse to testify before the House on the basis of executive privilege, he didn’t intend to authorize a prosecutor to go to a grand jury about Miers' refusal to testify. But companion legislation to the House resolution passed on Feb. 14 authorizes the House Judiciary Committee to initiate or intervene in judicial proceedings to enforce the supboenas issued to Miers and Bolton to compel them to testify (Miers) and provide documents (Bolton.) Miers did not return a call to her office by presstime. In a written statement, Jerry Clements, chairwoman of Locke Lord, said, "We are honored Harriet chose to return to Locke Lord Bissell & Liddell, and are extremely happy she is working with the firm and our clients. It is not surprising, given the high level of her position as White House Counsel and in this charged political environment, that heated debates erupt. There are important constitutional issues at stake. That said, this is a dispute between the Executive Branch and the Legislative Branch, and we are fortunate to be in a country where these issues can be debated.” A White House press spokesman did not immediately return a call seeking comment.
-- Miriam Rozen

For mature audiences only

Just imagining a staid, stodgy 5th U.S. Circuit Court of Appeals judge pondering this vital question -- Do Texans have a constitutional right to buy sex toys? --- is enough to make a person cringe or giggle. But that’s exactly the subject matter addressed in the 5th Circuit’s opinion in Reliable Consultants Inc., et al. v. Ronnie Earle, et al. Decades ago, the Texas Legislature decided to make it a crime when it forbid the sale an “obscene device” in §43.21 of the Texas Penal Code. This dastardly crime carries a two-year jail sentence as a maximum punishment. Texas is only one of three states that has such a law. But a Texas business that sells sexual devices challenged that law in a declaratory judgment action in a U.S. District Court in the Western District of Texas. Reliable Consultants alleged the statute violated the substantive liberty rights protected by the 14th Amendment and the commercial free speech rights protected by the First Amendment. But a trial court judge disagreed, finding the law was constitutional. The business appealed the ruling to the 5th Circuit. On Feb. 12, the 5th Circuit reversed and remanded the case to the trial court in a 2-1 decision, finding that the sex toy law violated the 14th Amendment. The 5th Circuit based its decision on the U.S. Supreme Court’s 2003 opinion in Lawrence, et al. v. Texas. That decision overturned another Texas law banning sodomy after a majority on the court found that intimate sexual activity between consenting adults was a liberty protected by substantive due process by the 14th Amendment. “Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right,’’ 5th Circuit Judge Thomas Reavley wrote in an opinion joined by Judge Edward Prado. “An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.” Judge Rhesa Barksdale wrote in his concurrence/dissent that he would have granted the plaintiff relief on the First Amendment claim, but not on the 14th Amendment claim. Then Barksdale had to work blue by reciting the exact devices covered by §43.21, which “include, but are not limited to ‘a dildo or artificial vagina.’ ” Those reading this opinion may long for the 5th Circuit to turn its attention back to ERISA disputes and Board of Immigration appeals.
-- John Council

Politics makes strange bedfellows

Three groups that often don’t agree with each other have filed a suit seeking to have a federal judge declare unconstitutional two state statutes that prohibit individuals and organizations from spending money to influence the election of the speaker of the Texas House of Representatives. The American Civil Liberties Union of Texas joined the Free Market Foundation and the Texas Eagle Forum Political Action Committee in filing Free Market Foundation, et al. v. David A. Reisman, et al. on Feb. 13 in the U.S. District Court for the Western District in Austin. Reisman is the executive director of the Texas Ethics Commission, which is charged with enforcing state Government Code §§302.017 and 302.019, which bar organizations and individuals from expending funds either directly or indirectly to defeat or elect a speaker candidate.  It’s a free-speech issue, says Hiram Sasser, legal director for Liberty Legal Institute and one of the attorneys representing plaintiffs in the suit. “These statutes affect everybody’s speech,” Sasser says. He says the plaintiffs will file motions Feb. 14 for a preliminary injunction to prevent enforcement of the statutes and for an expedited hearing in the case. Tim Sorrells, deputy general counsel for the Ethics Commission, says the commission has not enforced the 1973 statutes against anyone, at least in the last several years. Sorrells declines comment on the suit. U.S. District Judge Sam Sparks of Austin is presiding over the case. Sasser says the plaintiffs are seeking a decision prior to the March 4 primaries. It looks like a lot of folks want to have a say on who will be the next House speaker.
-- Mary Alice Robbins

Capital-murder conviction upheld in fetal twins' deaths

The Texas Court of Criminal Appeals on Feb. 13 unanimously upheld the capital murder conviction of Gerardo Flores for causing the 2004 deaths of twin unborn baby boys by stomping on the abdomen of his pregnant girlfriend. Flores v. Texas is the second case in which the CCA has considered the constitutionality of a 2003 statute, Texas Penal Code §1.07(a)(26), which defines an “individual” to include an unborn child. The court held the Penal Code provision constitutional in 2007’s Lawrence v. State. In that case, a Dallas jury convicted Terence Lawrence of capital murder for shooting to death his pregnant girlfriend. Both Flores and Lawrence received life sentences, but the two cases presented very different facts. As noted in the CCA’s majority opinion in Flores, written by Presiding Judge Sharon Keller, Flores argued, among other things, that §1.07(a)(26) violates constitutional equal protection requirements in his case, because it allows him to be prosecuted but did not allow his girlfriend to be prosecuted, because she was a pregnant woman carrying the victims. Penal Code §19.06 exempts the mother and health-care providers from prosecution for capital murder if a fetus’ death is the result of an abortion. According to the opinion, Flores argued that his girlfriend was cooperating with causing the deaths of the unborn twins. That argument ignored evidence that Flores physically abused his girlfriend, who had bruises on her abdomen, arms and face and bloodied, swollen lips, Keller wrote. Given that evidence, Keller noted, a reasonable jury could conclude that Flores’ act of stepping on his girlfriend’s abdomen were simply abusive rather than part of a plan to which she had consented. Flores also argued that the Penal Code provision that includes an unborn child in the definition of an individual violates the establishment clause of the U.S. Constitution by adopting “a religious point of view over a secular one,” according to the opinion. “Mere consistency between a statute and religious tenets, however, does not render a statute unconstitutional,” Keller wrote. The CCA’s decision in Flores may not end the challenges to the prosecution of fathers in such circumstances. Judge Cathy Cochran wrote in a concurring opinion that the court should give further consideration to the issue of whether the due process and equal protection rights of a father are violated if he is prosecuted for assisting “in an unorthodox procedure that intentionally leads to a miscarriage.” But Cochran also wrote that there was ample evidence in Flores to conclude that the father was "not acting at the behest of the prospective mother" but was instead physically abusing her. Judge Cheryl Cochran joined Cochran in the opinion. Judges Tom Price and Charles Holcomb concurred without opinions.
-- Mary Alice Robbins

Epstein Becker & Green to close Dallas office

Epstein Becker & Green, a 395-lawyer firm based in New York, will close its Dallas office and consolidate Texas operations in Houston. A. Martin Wickliff (left), managing shareholder in Houston and a member of the firm’s board of directors, says each of the 13 lawyers currently working in Dallas are invited to move to Houston, or to any other Epstein Becker office. Wickliff says the board voted in January to consolidate Texas operations in Houston, and lawyers and staff in Dallas were given the news on Feb. 12. It’s too early to say how many of the Dallas lawyers will choose to move to Houston, he says. “It was just announced yesterday and there are family issues to deal with and relocating from one city to another,” he says. Support staffers from Dallas who want to relocate to Houston may apply to do so, and the requests will be considered on a case-by-case basis, he says. Wickliff says the firm will shutter the Dallas office over the next four to five months to take advantage of the economies of scale that are currently being sacrificed by having two smaller offices. He also says the consolidation will help the firm grow in Houston, and provide more efficient service to its clients. “Even though we had a record year in revenues and profits last year, we constantly are trying to improve our performance,” he says. Epstein Becker opened its Dallas office in 1986, and the firm moved into the Houston market in 2002 when it merged with Wickliff & Hall, then a 15-lawyer firm in Houston. The firm is known as Epstein Becker Green Wickliff & Hall in Houston. Wickliff says the firm chose to consolidate in Houston instead of in Dallas because Houston is the nation’s fourth largest city, and because the firm’s Houston client roster closely matches the firm’s national client base. He declines to identify clients. Epstein Becker also has offices in Atlanta, Chicago, Los Angeles, Miami, Newark, Stamford, Conn., and Washington, D.C. William Venema, managing shareholder in Dallas, could not immediately be reached for comment.

-- Brenda Sapino Jeffreys

Federal grand jury hears Kent matter

A federal grand jury in Houston is considering testimony regarding an alleged sexual harassment incident involving U.S. District Judge Samuel Kent of the Southern District, says Kent’s lawyer Dick DeGuerin, who stresses that Kent has done nothing wrong. At least seven people have testified before the grand jury, says DeGuerin, a partner in Houston’s Dickson DeGuerin & Hennessy. The witnesses testified before a grand jury as part of a U.S. Department of Justice investigation, he says. DeGuerin declines to name the witnesses but says “they all worked in the Galveston courthouse.” Cathy McBroom, a former case manager for Kent, filed a complaint against him with the 5th U.S. Circuit Court of Appeals last May. The 5th Circuit Judicial Council reprimanded and admonished Kent in a Sept. 28, 2007, disciplinary order. In November 2007, McBroom filed a motion asking the Judicial Council to take further action. She asked the council to reconsider its decision not to refer her complaint to the Judicial Conference of the United States and asked the DOJ to consider criminal charges against Kent. Meanwhile, DOJ already had taken an interest in the matter and subpoenaed documents from the 5th Circuit regarding McBroom’s complaint against Kent. It’s not clear if Kent will testify before the grand jury. “That’s an option that I don’t know if we’ll be given or not. But he’s got nothing to hide. I don’t even know if it will come to that,” says DeGuerin, who adds that he is preparing a summary of Kent’s side of the story to present to prosecutors. Documents related to the Kent matter cannot be made public, because the 5th Circuit’s rules require secrecy in disciplinary actions involving district judges, DeGuerin says. “The confidentiality rules of the 5th Circuit are very strong, and we have scrupulously abided by those. And we have asked permission to give to the criminal investigators — that is the Justice Department — the information that we’re now going to give them. And what’s even more important I think is that the 5th Circuit Judicial Council and the panel that did most of the investigation that gathered information for the council are strong-minded tough judges. They did a thorough job and came to the conclusion there wasn’t sufficient proof to believe that a crime had occurred. . . . But what is very important is what the admonishment does not say. And it does not say there was evidence that Judge Kent committed any crime.” McBroom’s lawyer Rusty Hardin did not return a telephone call. Laura Sweeney, a DOJ spokeswoman, declines comment.
-- John Council

Throwing a bean ball

Rusty Hardin isn’t accustomed to mincing words. But U.S. Rep. Henry Waxman, in a letter posted on the Web site of the U.S. House Committee on Oversight and Government Reform, expressed concern with some of Hardin’s remarks about a committee hearing on steroids in baseball scheduled for Feb. 13. Waxman, a California congressman who chairs the committee, suggested in a Feb. 10 letter to Hardin that remarks made by Hardin, who represents former Houston Astros pitcher Roger Clemens, to The New York Times could be construed as intimidation against federal agent Jeff Novitzky. “According to the The New York Times, you said it would be ‘unbelievable’ and ‘brazen’ if a federal agent, Jeff Novitzky, attended a Committee hearing scheduled for Wednesday, February 13. The article also reported that you said: ‘I can tell you this: If he ever messes with Roger, Roger will eat his lunch,' ” Waxman wrote. He wrote that he hopes Hardin did not intend for his comments to be a “signal that there could be adverse repercussions to a federal law enforcement official for attending the hearing or taking other official actions.” He urged Hardin to “clarify the record.” That’s what Hardin did in a letter to Waxman also dated Feb. 10. Hardin, of Rusty Hardin & Associates, wrote that he suspects Waxman may have occasionally phrased comments in an “inartful or injudicious way” during his years as a public servant, and if so, Waxman should understand Hardin's current situation. Hardin wrote that he regrets the sentence about Clemens eating Novitzky’s lunch. “In addition to being inelegant language, it is apparently capable of being misconstrued by others. I certainly wish I had not used that language, but I cannot claim I did not say it, nor can I say I was quoted out of context,” Hardin wrote. The lawyer, a former state prosecutor who handled civil and criminal matters, wrote that in 33 years of practice he’s never been misquoted and “unfortunately for this occasion, that record is still intact.” Hardin wrote that he expressed concern about Novitzky attending the hearing, because it’s his belief the federal agent’s conduct throughout the committee’s steroids investigation has been “intended to chill Roger Clemens’ attempts to publicly defend his reputation.” Hardin says Novitzky is free to attend the hearing, as is any other citizen. “I no more intended to intimidate Agent Novitzky than you intended to intimidate me by publicly releasing a letter chiding me for my conduct as my client prepares to appear before your committee. I trust in both instances that you and I were simply exercising our blessed First Amendment right of free speech,” Hardin wrote. Clemens, who denies he took steroids, is scheduled to testify at the hearing on Feb. 13. The hearing follows a report prepared by former U.S. Sen. George Mitchell into performance enhancing drugs.
-- Brenda Sapino Jeffreys

East, West Texas candidates vie for TYLA president-elect

Lawyers from El Paso and Texarkana are running for president-elect of the Texas Young Lawyers Association.  Cori Harbour of The Harbor Law Firm in El Paso currently serves as TYLA vice president and is president-elect of the El Paso Bar Association. She is a graduate of the Texas Southern University Thurgood Marshall School of Law.  Kristie Wright, senior associate with Haltom & Doak in Texarkana and a former assistant district attorney for Anderson and Bowie counties, has served on the TYLA board of directors since 2005.  She is a graduate of Baylor University School of Law.  The State Bar of Texas will distribute paper and electronic ballots for the election April 1.  TYLA members can cast their ballots through May 1. The winner will become TYLA president in June 2009.
-- Mary Alice Robbins

Different takes on gay marriage

The idea of gay marriage has sparked controversy in Texas and across the country.  But the South Texas Law Review is sponsoring a continuing legal education program Feb. 15 that looks at the underlying policy question of whether same-sex marriage is a good idea from a conservative perspective.  The symposium, which will be held at South Texas College of Law in Houston, will feature eight speakers who will address the issue from different viewpoints. Here’s a sampling of what’s in store for those in attendance.  American Enterprise Institute fellow and National Review Online columnist David Frum will discuss “Same-Sex Marriage: Unconservative in Purpose, in Application and in Result.” Gerard Bradley, a professor and constitutional law scholar at Notre Dame Law School, will discuss “Three Bad – and Unconservative – Arguments for Same-Sex Marriage.”  Another speaker, Teresa Stanton Collett, a professor at the University of St. Thomas School of Law in Minneapolis, who teaches a course on human sexuality and the U.S. Constitution, will address “Marriage and Same-Sex Unions: Asking Too Little and Too Much.” 
-- Mary Alice Robbins

Subpoena = save, not delete.

Harris County District Attorney Chuck Rosenthal will be back in federal court in Houston on Feb. 25 for the resumption of a hearing on a motion seeking contempt and sanctions against him for deleting e-mails under subpoena. It will be the third day for proceedings on the motion in U.S. District Judge Kenneth Hoyt’s court. Hoyt heard evidence on Jan. 31 and Feb. 1 from Rosenthal and others at the DA’s office who testified about what they did to comply with a subpoena that sought e-mails from Rosenthal and others who work for him at the DA’s office as a part of discovery in an underlying civil rights suit. But the hearing on the motion for sanctions ended abruptly on the afternoon of Feb. 1, when Hoyt granted a recess at the request of Rosenthal’s attorney, Houston criminal-defense lawyer Ronald Lewis, a partner in Marshall & Lewis in Houston. On Feb. 1, Rosenthal testified that he deleted thousands of e-mails on Nov. 5, 2007, in an “effort to simplify my desktop” just hours after Scott Durfee, general counsel for the DA’s office, compiled a log of the e-mails that were on Rosenthal’s computer. Rosenthal, DA since 2001, endured an hour of sometimes heated questioning by Hoyt and more questions from Houston lawyer Lloyd Kelley, of Lloyd E. Kelley & Associates, who represents the plaintiffs in the underlying civil rights suit, Erik Adam Ibarra, et al. v. Harris County, Texas, et al. Rosenthal told Hoyt that, when he deleted the e-mails, he thought his office's IT department had a record of them on backup tapes. In a brief order signed on Feb. 11, Hoyt wrote that “pursuant to agreement of counsel,” he set the matter for remaining evidence and the arguments of counsel on Feb. 25.
-- Brenda Sapino Jeffreys

Let your fingers do the walking

The U.S. Postal Service is suing a Yellow Pages knockoff, alleging that Ad TelAmerica Inc., a Carrollton-based company, is defrauding customers who believe they are paying for ads in the Yellow Pages directories published by AT&T. In U.S. Postal Service v. Ad TelAmerica Inc., filed Feb. 6 in U.S. District Court for the Northern District of Texas, the postal service alleges that Ad TelAmerica sends out "Final Notice" letters to businesses, threatening to omit their listings if they don't return the form. Ad TelAmerica's letters use the Yellow Pages name and even feature a logo that is strikingly similar to the Yellow Pages' "walking finger logo," according to the suit, even though AT&T claims ownership of that logo and the Yellow Pages name. According to the suit, Ad TelAmerica's mailings admit in small print that their Yellow Pages are not affiliated with any telecommunications company, do not distribute guides to all local area phone subscribers and cost subscribers $298 twice a year. The postal service's general counsel filed an administrative complaint against Ad TelAmerica and its owner Barbara J. Sommer, alleging that the company and Sommer are "engaged in a scheme or device to obtain money by means of false representations." In furtherance of that complaint, the post office seeks a temporary restraining order against Ad TelAmerica so it can detain incoming mail for the company.
-- Jonathan Fox

Baker, Botts & Boots

For the past two years, Baker Botts' annual client appreciation party was firmly rooted in the 1980s, so to speak. Its February 2006 shindig featured legendary '80’s party dance band The B-52’s and the 2007 event featured '80’s chart toppers Huey Lewis & The News. But this year’s party, held last Saturday night at Dallas’ Palladium Ballroom, took a completely different turn. Instead of mining decades-old bands, the firm hired Texas singer-songwriter Pat Green and his country twang for the party. Hundreds of party-goers crowded the wooden dancehall floor near the stage wearing their best starched western shirts and black felt cowboy hats. While the crowd moved their feet to Green’s music, one Baker Botts partner is getting ready to scoot to Washington, D.C., for an important congressional hearing. Catharina Haynes, a former Dallas civil district judge who rejoined the firm after losing her bench in a Democratic landslide that swept more than 40 GOP judges out of office in 2006, will appear before the Senate Judiciary Committee on Feb. 21 for a nomination hearing. President George W. Bush nominated Haynes to the 5th U.S. Circuit Court of Appeals last July to replace Judge Harold DeMoss who took senior status.

-- John Council

Bracewell's new managing partner

On Feb. 8, Mark C. Evans became the new managing partner of Houston-based Bracewell & Giuliani, according to a release issued by the firm on Feb. 11.  The firm's former managing partner, Patrick Oxford, has assumed the newly created role of chairman of the firm. Oxford, who had served as the firm’s managing partner since 2001, began discussing leaving the post last fall, a senior partner at the firm says.  In 2005, Oxford orchestrated the firm’s hiring of Rudy Giuliani, the former mayor of New York City, to launch the firm's Manhattan office. Giuliani recently quit the race for the Republican presidential nomination. Oxford was chairman of Giuliani’s presidential campaign. One senior partner at the firm expects Oxford, as chairman, to work closely with Giuliani now that the former mayor has stopped campaigning and partners at the firm expect Giuliani to return to the practice of law. Evans, a 1977 graduate of the University of Texas School of Law, represents international commercial banks and has served on Bracewell & Giuliani’s management committee.
-- Miriam Rozen

Former DA Bill Hill Joins Dallas Criminal-Defense Firm

More than a year after he stepped down as Dallas County district attorney, Bill Hill has joined Fitzpatrick Hagood Smith & Uhl, a criminal-defense firm where he will be of counsel. It’s not surprising that Hill joined the firm; most of the lawyers there are former high-level Dallas prosecutors. “I think it’s going to be great. He had a very long and distinguished career as a criminal-defense lawyer prior to becoming DA,” says Toby Shook, a partner in the Dallas firm. In November 2005, then-DA Hill announced that he would not seek re-election. Shook, who was felony bureau chief at the Dallas County DA’s Office when Hill was DA, attempted to follow in Hill’s footsteps and ran as a Republican for the DA post. But Democrat Craig Watkins narrowly upset Shook in the November 2006 election. Shook, who joined Fitzpatrick Hagood in early 2007, says Hill has taken time off since leaving the DA's office and has been involved in his son Trey's ministry in West Dallas. Shook says it won’t be weird working with his former boss. “I don’t think I’ll be telling him what to do,” Shook says. “I think we’ll work as a team like we do with all of the lawyers in the office."
-- John Council

Legal aid groups sue alleged posers

Texas RioGrande Legal Aid Inc. and a counterpart agency in Colorado filed a federal suit on Feb. 7 against Aurora, Colo-based Legal Aid National Services, known as The LANS Corp., and 28 other businesses and individuals who allegedly are defrauding consumers by promising to provide legal aid services but doing it for a fee. Texas RioGrande Legal Aid and Colorado Legal Services, which provide free legal services to indigent clients — in Central, South and West Texas, and in Colorado, respectively — allege in the suit, filed in U.S. District Court in Colorado, that LANS and other defendants “fraudulently induced consumers looking for legal representation to retain their services by using variations of the well-known and trusted ‘Legal Aid’ designation.” The plaintiffs in Colorado Legal Services, et al. v. Legal Aid National Services, et al. are both nonprofits funded by the Legal Services Corp. The plaintiffs allege in the complaint that the defendants misrepresent that they are legitimate legal aid organizations and “collect large fees for simple services, render inadequate or incomplete services (if they render services at all), and then make it nearly impossible for those consumers to reach Defendants after the fraud has occurred.” The plaintiffs allege the defendants purport to offer attorney services in 27 states and use several methods to defraud consumers, such as local telephone numbers in various jurisdictions, Web sites designed to induce consumers to retain their services and giving the “false and misleading impression” that defendants are affiliated with legitimate “Legal Aid” organizations. The plaintiffs also allege that at least since 1995, defendants have “repeatedly ignored court orders, injunctions, sanctions, and fines imposed in connection with the unauthorized practice of law.” In the complaint, Texas RioGrande Legal alleges that several of its current clients came to the organization with complaints about the defendants. The plaintiffs bring several causes of action against the defendants, including, among others, a Racketeer Influenced and Corrupt Organizations Act claim and federal trademark infringement, false advertising and unfair competition, and they allege trademark infringement, unfair competition, tortious interference and unauthorized practice of law under Texas law. Lawyers from Morrison & Foerster in Denver and New York represent Texas RioGrande Legal Aid on a pro bono basis. The telephone number listed on a Web site for LANS has been disconnected.

-- Brenda Sapino Jeffreys

Cable industry’s suit goes on

The 5th U.S. Circuit Court of Appeals has given the state's cable providers a green light to continue their suit challenging a 2005 statute that overhauled regulation of the cable industry and video programming in this state. In an unpublished opinion issued Feb. 7, a three-judge panel held that U.S. District Judge Lee Yeakel of the Western District in Austin erred when he dismissed Texas Cable & Telecommunications Association v. Hudson, et al. in 2006. The panel, made up of Judges E. Grady Jolly, W. Eugene Davis and Jacques Wiener Jr., reversed Yeakel's decision and remanded the case. At issue in the TCTA's suit is the Act Furthering Competition in the Communications Industry, which added a new chapter, Chapter 66, to Subtitle C, Title 2 of the Texas Utilities Code. TCTA alleges in its complaint that the statute unfairly discriminates against existing cable providers in favor of new providers who can now enter the market under less rigorous requirements than imposed on the incumbents. Yeakel dismissed the suit based on arguments by the defendants, members of the Texas Public Utility Commission and intervenor defendants, including SBC Texas, that TCTA members lacked standing to sue and that the case is not ripe for litigation. The 5th Circuit panel concluded that the TCTA has alleged injuries sufficient to show standing and that its claims are ripe for further proceedings. So the cable providers, telephone companies and PUC will be back in Yeakel's court for another go-around.

-- Mary Alice Robbins

Hands off that wallet

After 299th District Judge Charles Baird ordered Travis County prosecutors to return to Trent Stewart the contents of his wallet on Feb. 5, District Attorney Ronnie Earle turned to the 3rd Court of Appeals. The DA's office is fighting the order, because it argues the wallet is evidence of a crime committed by Stewart. Responding to Earle’s petition for writ of prohibition and mandamus, the 3rd Court issued a Feb. 5 order staying any further proceedings in State v. Stewart in Baird’s court. As noted in Earle’s petition, Baird sentenced Stewart to 25 years in prison in November 2007 after Stewart pleaded guilty to aggravated robbery with a deadly weapon. But, according to Earle’s petition, Baird granted Stewart’s motion for a new trial on punishment in December 2007, and in January, Baird signed an order releasing Stewart from jail. Earle alleged in the petition that on Feb. 5, Baird orally ordered prosecutors to give Stewart the identification documents in his wallet, which was found at the scene of the robbery.  “The wallet and its contents are evidence of the aggravated robbery,” says Buddy Meyer, director of trials in the DA’s office. In its order, the 3rd Court requested Baird to file a response to Earle’s petition by Feb. 15. John Butler, Stewart's lawyer, did not return a telephone call seeking comment.
-- Mary Alice Robbins

Bracewell to elect new MP

At their Feb. 8 annual meeting, Bracewell & Giuliani partners are scheduled to choose a new managing partner. Last fall, Patrick Oxford, the firm's current managing partner, began discussing relinquishing his post with his partners, say two senior partners at the 432-lawyer Houston-based firm who request anonymity. Oxford’s plan to step down surfaced months before Bracewell partner Rudy Giuliani dropped out of the presidential race, the two senior partners say. After he steps down, Oxford will most likely retain a role akin to firm chairman, one of the senior partners says. The same senior partner notes that several Bracewell partners are being touted to become the next managing partner, including Mark Evans, Carrin Patman, Greg Bopp and Tullos Wells. Bopp and Patman decline comment, and Evans and Wells did not return telephone calls. Oxford has been Bracewell's managing partner for seven years. Partners have re-elected Oxford at their annual meeting each of those years.
-- Miriam Rozen

DA Rosenthal hires criminal-defense lawyer

Embattled Harris County District Attorney Chuck Rosenthal has hired Ron Woods, a criminal-defense lawyer who practices in the federal courts and a former U.S. attorney for the Southern District of Texas, to represent him in matters related to the deletion of e-mails on Rosenthal's work computer, according to Bill Delmore, the legal services bureau chief in the DA’s office. Many of those e-mails were the subject of a court-ordered subpoena in a federal civil-rights suit, Erik Adam Ibarra, et al. v. Harris County, et al. At a hearing in Ibarra in federal court in Houston on Feb. 1, Rosenthal testified that he stood over the shoulder of Assistant DA Scott Durfee as Durfee compiled a log of the e-mails that were on Rosenthal’s computer on Nov. 5, 2007, and were perhaps subject to the subpoena. Durfee, general counsel for the DA’s office, printed that log of 4,126 e-mails at 12:18 p.m. that day. But Rosenthal testified in court that he spent much of the afternoon on Nov. 5 deleting thousands of his e-mails in an effort to “simplify my desktop.” At the hearing, Rosenthal, DA since 2001, endured an hour of sometimes heated questioning by U.S. District Judge Kenneth Hoyt and more questions from Houston lawyer Lloyd Kelley, who represents the plaintiffs in Ibarra. Rosenthal told Hoyt that when he deleted the e-mails, he thought his office's IT department had a record of them on backup tapes. “Why would you delete e-mails that the court has requested you to provide and force them [the IT department] to use this circuitous route?” Hoyt asked. Rosenthal declines comment, and Woods, who attended the hearing in Hoyt's court last week, did not return telephone calls seeking comment. Delmore says Rosenthal personally hired and is paying for Woods’ representation. At the request of Harris County Attorney Michael Stafford, in mid-January Texas Attorney General Greg Abbott agreed to conduct an investigation of Rosenthal’s use of the county e-mail system. Abbott’s action came on the heels of allegations that Rosenthal used his work computer, which is county property, to send e-mails related to his now-aborted re-election campaign. The AG's office is investigating Rosenthal's actions to determine if they are grounds for removal from office under Chapter 87 of the Local Government Code, which prohibits the use of state or county equipment by office holders for campaign purposes. Investigators from the Texas AG’s office were in the Harris County DA's office on Feb. 6 asking questions, Delmore says.

--  Miriam Rozen and Brenda Sapino Jeffreys

Strike two

Austin solo Karyl Krug, a Democratic candidate for the 427th District Court bench, has struck out at the 3rd Court of Appeals. On Feb. 5, Krug filed a petition for writ of mandamus, asking the 3rd Court to require the Texas Ethics Commission to take immediate action on her complaint that Democratic primary foe Jim Coronado, the Travis County criminal magistrate, is violating state election law by calling himself a judge in campaign materials. As alleged in Krug’s complaint, filed Jan. 17 with the ethics commission, Coronado is not a judge and violates Texas Election Code §255.006 by representing himself as one in campaign advertising and on his Web site. Coronado says he is a judge. Krug originally filed her writ petition with the Texas Supreme Court on Jan. 29. The high court denied that petition without prejudice on Feb. 1. The 3rd Court denied Krug’s petition on the merits about two hours after she filed it Feb. 5. But Krug isn’t giving up. On Feb. 6, she filed another petition for writ of mandamus at the state Supreme Court. In In Re Karyl Anderson Krug, she is asking the Supreme Court for a writ of mandamus against the 3rd Court for denying her writ petition “without due consideration, oral argument, or explanation.”
-- Mary Alice Robbins

Big trouble in River Walk city

Souvenir vendors doing business in San Antonio's River Walk area are suing the city for passing an allegedly unconstitutional ordinance regulating their businesses. Lopez, et al. v. City of San Antonio was filed Dec. 31, 2007, in the 37th District Court of Bexar County but removed to U.S. District Court for the Western District of Texas on Feb. 4. Four souvenir vendors, including Ignacio Lopez, Maria Lopez, Xochilt M. Hidalgo and Romelia Valenzuela, are suing the city for passing an ordinance on Nov. 2, 2006, that regulates issuance of vending permits in the River Walk area. According to the suit, existing vendors had to reapply for permits; all but one of the plaintiffs applied for and received new permits. Nonetheless, the plaintiffs allege that the law "is a means and a tool to put the Plaintiffs out of business and is being enforced by the [city] to deny them a permit using unconstitutional means." The plaintiffs allege that the city is violating their constitutional "right to sell products" and also their due process rights, because the law allegedly fails to provide a mechanism for notice to vendors of any deficiencies that could constitute a basis for suspending, revoking or denying a permit. In addition, the plaintiffs allege that the law fails to provide vendors an opportunity to cure any alleged defect before loss of a permit.
-- Jonathan Fox

Fox TV faces FMLA suit

Jermaine Allen is suing Fox Television Stations Inc. for allegedly violating his rights under the Family and Medical Leave Act and retaliating against him for seeking to report his manager's alleged misconduct regarding those rights. Allen v. Fox Television Stations Inc. was initially filed Nov. 7, 2007, in Harris County's 127th District Court but was removed to U.S. District Court for the Southern District of Texas on Feb. 1. In the suit, Allen alleges that when he requested FMLA leave to care for his newborn child his manager Shannon Jack became "visibly agitated, was noncommittal, and told him that she would look into his request." The next day, Allen alleges, a subordinate asked him about his wife's pregnancy and why he was taking time off. Allen, the suit alleges, asked the employee how he knew about his personal business, and the employee said "he had overheard Jack loudly complaining to another Fox employee about Allen's desire to take time off under the FMLA." Allen alleges that he confronted Jack about sharing his personal information but Jack denied doing so. But his subordinate, Allen alleges, then came into Jack's office and contradicted Jack. Allen sought a meeting with the company's human resources department to complain about Jack's alleged misconduct. A few days later, he attended a meeting with HR, but  the purpose of the meeting was to fire him for allegedly having pornographic images on his computer -- allegations Allen denies. He says that his "only personal Internet activity at work was through his MySpace.com account, where he checked his personal e-mail." The images might have come from MySpace as instant messages or spam, says Allen, who notes that Fox's parent company News Corp. owns MySpace. Allen's suit seeks compensatory damages, punitive damages, attorneys' fees and reinstatement by Fox Television.
-- Jonathan Fox

How much is enough?

On Feb. 4 victims of