Texas Lawyer Blog

5th Court: Same-sex couple cannot get divorced in Texas

On Aug. 31, Dallas’ 5th Court of Appeals sided with the Texas Office of the Attorney General, ruling that a same-sex couple cannot get divorced in Texas. A three-justice panel of the 5th Court granted the OAG’s petition for a writ of mandamus but noted that “the writ will issue only if the trial court fails to immediately comply” with the 5th Court’s order. The 5th Court remanded the case with instructions that the trial court dismiss it for lack of subject matter jurisdiction. In the 38-page opinion, Justice Kerry P. FitzGerald, joined by Justices Robert M. Fillmore and David Bridges, wrote that the trial court “erred by ruling that article I, section 32(a) of the Texas Constitution and section 6204 of the Texas Family Code violate the Equal Protection Clause of the Fourteenth Amendment.” The controversial case began on Jan. 21, 2009, when J.B. filed his original petition for divorce. Attached to the petition was a certificate of marriage from the Commonwealth of Massachusetts, showing that J.B. and H.B. married in 2006. J.B. alleges in his original petition that "the marriage has become insupportable because of discord or conflict of personalities" between J.B. and H.B. In an Oct. 1, 2009, order, 302nd District Judge Tena Callahan ruled that the state's constitutional and statutory provisions prohibiting recognition of same-sex marriages in Texas violate the right to equal protection and therefore the 14th Amendment of the U.S. Constitution. Callahan found that she has jurisdiction to hear the divorce of J.B. and H.B., who were legally married in Massachusetts and currently meet the residency and other requirements to file for divorce in Dallas County. The judge also denied the OAG's motion to intervene in J.B. On Oct. 2, 2009, the OAG filed a notice of appealwith the 5th Court seeking to overturn Callahan's order. That notice stayed Callahan's order. In a Jan. 12 brief to the 5th Court, the OAG argued that "the questions presented here can be answered in just two simple steps. First, it is well established that voidance, not divorce, is the proper remedy under Texas law for terminating any purported marriage that is not legally valid in the State of Texas — including same-sex relationships that may be considered marriages in other states. And in any event, any federal constitutional claim to the contrary is precluded by U.S. Supreme Court precedent. . . ." In his Feb. 8 brief to the 5th Court, J.B. argued that Callahan's order does not overturn Texas' ban on same-sex marriage. "The married couple here simply wants a divorce, just like any other couple married out-of-state, relocated to Texas, and, when their relationship ended, availed themselves of our courts to obtain a divorce," J.B. wrote. The 5th Court heard oral arguments in In the Matter of the Marriage of J.B. and H.B. on April 21. In the Aug. 31 opinion, FitzGerald wrote that the 5th Court considered “whether Texas’s marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples. We conclude that they are. Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. . . . The legislature could reasonably conclude that the institution of civil marriage as it has existed in this country from the beginning has successfully provided this desirable social structure and should be preserved. . . . The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship. . . . The Texas Constitution and the Texas Family Code single out one particular social unit for purposes of defining a legally valid marriage in Texas: opposite-sex couples. Appellee asserts that because Texas law thus both defines and restricts formal recognition of the institution of marriage to opposite-sex couples, it thereby discriminates against and denigrates same-sex couples. We disagree. Texas law recognizes that only opposite-sex couples are naturally capable of producing children, and it gives participants in that kind of relationship the option of legal formalization, with the legitimate legislative goal of encouraging such formalization and thereby promoting the well being of children.” James "Jody" Scheske, a partner in the Austin office of Akin Gump Strauss Hauer & Feld who represents J.B., says he is disappointed with the decision and his client will likely appeal. "Eventually all married couples will have equal access to divorce in Texas. This opinion denies that right to same-sex couples based largely on the notion that the state needs to promote an 'optimal familial setting.' I fail to see what that has to do with divorce. Even divorcing opposite sex couples don't intend to procreate with each other." Tom Kelley, a spokesman for the OAG, did not immediately return a telephone call.

-- Mirizm Rozen

Pennsylvania Supreme Court leaves Houston firm Bailey Perrin Bailey’s contingent fee intact

Houston-based firm Bailey Perrin Bailey has won a victory at the Pennsylvania Supreme Court regarding its representation of the Commonwealth of Pennsylvania on a contingent-fee basis in a suit against the manufacturer of the prescription anti-psychotic medication Risperdal. In a 5-1 decision Aug. 17, Pennsylvania’s high court held that Janssen Pharmaceutica Inc. lacks standing to challenge Bailey Perrin’s representation under 71 P.S. §723-103. Chief Justice Ronald Castillo wrote for the Supreme Court majority in Commonwealth, Office of General Counsel v. Janssen Pharmaceutica Inc., “The obvious interpretation of Section 103 is that no party to an action, other than the Commonwealth agency involved in the action itself, may challenge the authority of the agency’s legal representation.” According to the Supreme Court’s majority opinion, in January 2008, the Office of General Counsel had filed a complaint against Janssen in the Court of Common Pleas of Philadelphia County regarding its marketing of Risperdal. In January 2009, after the trial court denied Janssen’s motion to disqualify Bailey Perrin as the Commonwealth’s counsel, Janssen filed an application for extraordinary relief in the Pennsylvania Supreme Court. As noted in the Supreme Court’s majority opinion, Janssen alleged, among other things, that Bailey Perrin’s contingent-fee agreement for 15 percent of any damages the firm recovers for the Commonwealth restricts the Office of General Counsel’s authority to settle the litigation for nonmonetary relief. But the Supreme Court’s ruling is a hollow victory for the Texas firm. Bailey Perrin partner F. Kenneth Bailey says, “The only silver lining in this so far has been the fact that we won at the Supreme Court on our representation.” As noted in the Supreme Court’s majority opinion, Court of Common Pleas Judge Frederica Massiah-Jackson of Philadelphia granted Janssen’s motion for a compulsory nonsuit of the state’s underlying litigation against Janssen on June 14. Bailey says the Commonwealth plans to appeal Massiah-Jackson’s decision. Edward Posner, Janssen’s attorney and a partner in Drinker Biddle & Reath in Philadelphia, declines comment on the case and refers questions to Janssen. Janssen spokeswoman Kara Russell writes in an e-mail that the company is disappointed by the Pennsylvania Supreme Court’s decision. “Lawyers representing a state in matters like this one should not have a financial interest in the outcome of the case,” Russell writes.
-- Mary Alice Robbins

Former Texas Supreme Court Chief Justice Tom Phillips is a defendant in a wrongful-death suit

Former Texas Supreme Court Chief Justice Tom Phillips (pictured), now a partner in the Austin office of Baker Botts, is a defendant in a wrongful-death suit in Bastrop County. In an Aug. 31 petition filed in the 335th District Court, the parents of a teenage girl killed in a March 2009 accident are suing defendants: Phillips; his wife Marilyn; their son Daniel; Glenda and Scott Halbert, as trustees of the Halbert Revocable Trust d/b/a Country Corner; and Point Horizon Properties LLC and Kiego LLC (collectively referred to in the petition as Beverage Barn). In the petition, the plaintiffs — Cheryl and Bobby King, individually and as representatives of their daughter's estate — allege that the Phillipses’ house “was well known in the Bastrop community as the location of frequent underage drinking parties.” In their petition, the plaintiffs allege the following: On the night of March 30, 2009, their daughter, Audrey, attended a party at the Phillips’ home. During the party, Tom and Marilyn Phillips were home and “were well aware that minors were getting drunk in their back yard.” Daniel Phillips “encouraged, and at times pressured Audrey to drink large amounts of alcohol” and when the “party became too loud, Mrs. Phillips forced Audrey and the others kids to leave in the middle of the night, even though they had been drinking for hours and were clearly intoxicated.” Audrey, who was a passenger in the vehicle that crashed, “died because of wrongful acts, carelessness, and neglect of defendants in providing her and other kids alcoholic beverages without any regard for Audrey’s safety or the welfare of others.” The plaintiffs’ causes of action include wrongful death of a minor child; wrongful acts, neglect and carelessness; and violations of the Texas Alcoholic Beverage Code. The plaintiffs also bring causes of action against the three Phillips defendants for negligence, gross negligence and negligence per se. The plaintiffs, who are represented by Dax Faubus and Harry Scarborough of Houston’s Faubus & Scarborough, are requesting a jury trial and economic, non-economic and exemplary damages. In response to a telephone call seeking comment, the Phillipses’ lawyer Richard Mithoff of Houston’s Mithoff Law Firm issued a statement that reads in part: “Tom and Lyn Phillips were profoundly saddened to learn of Audrey King’s tragic death and distressed to learn that she had been at their home the evening before. Her family has their heartfelt sympathy. Neither Judge nor Mrs. Phillips served or provided alcohol to anyone on the night before the accident. Nor did they knowingly allow anyone to consume alcohol or to become intoxicated on their premises. Judge and Mrs. Phillips categorically deny statements in the pleadings that they ‘were very much aware that their son and other Bastrop kids were regularly getting drunk at their house’ and that they ‘were well aware that minors were getting drunk in their backyard’ at any time prior to the accident.” The statement says those allegations are false and absurd. “Judge and Mrs. Phillips did not know Audrey had been a guest in their carriage house or anywhere else on their property that evening. Judge and Mrs. Phillips deny any other allegations suggesting otherwise,” the statement reads. In a telephone interview, Mithoff adds that on the night of the accident, Tom and Marilyn Phillips were asleep until sometime after midnight. “Mrs. Phillips was awakened by the sound of an engine revving," Mithoff says. As alleged in the petition, Country Corner and Beverage Barn sold alcohol to Audrey King and other minors on March 30, 2009. Scott and Glenda Halbert deny the allegations. A telephone listing for Point Horizon Properties and Kiego could not be located. Chris Griego, a representative for Point Horizon Properties and Kiego, declines to comment on the litigation because he has not seen the filing. Scarborough says prior to filing their suit, his clients attended two mediation sessions led by David Matthiesen of Houston's Matthiesen & Association but the two sides were unable to reach an agreement. Mithoff confirms both sides attended mediation with Matthiesen, but he declines further comment. Matthiesen did not immediately return a telephone call. Texas Alcoholic Beverage Commission agent Tricia Rutledge, who investigated the circumstances surrounding Audrey King's death, says she will file a report by the end of September and that her findings indicate the Phillipses did not violate the Texas Alcoholic Beverage Code.

-- Miriam Rozen

Houston attorney alleges in suit that immigration officials libeled him

In a suit filed Aug. 24, Houston solo Kurt Clarke is seeking more than $3.85 million from U.S. Citizenship and Immigration Services officials for allegedly libeling him. Clarke filed Clarke v. Mayorkas, et al.in the U.S. District Court for the Southern District of Texas in Houston. Clarke alleges in his original complaint that USCIS had requested additional information on an immigration case in which Clarke represented an individual and that he obtained the documents from the Texas Office of the Attorney General. Clarke alleges that he forwarded the documents to the USCIS “just as they were received from the A.G” but that Sandra M. Heathman, director of the USCIS Houston District Office, accused him in an Aug. 21, 2009, letter of tampering with a document. As alleged in the complaint, Clarke requested in an Aug. 26. 2009, letter that Heathman recant the allegation, but she did not do so. In addition to Heathman, the complaint names as defendants Alejandro Mayorkas, the USCIS commissioner, and other unnamed agents and employees of the agency. Clarke alleges in his complaint that the defendants had no factual basis for the libelous statement in the Aug. 21, 2009, letter and “were reckless in their conduct in publishing such a false statement.” Prior to the publication of the “libelous material,” Clarke “enjoyed a reputation of honesty, stability and trustworthiness in his community,” Clarke alleges in the complaint. The defendants “maliciously” published the letter, “with the knowledge that the allegations were false or with an entire want of care and conscious indifference” to his rights, Clarke alleges. As noted in the complaint, Clarke is seeking a judgment against the defendants for $850,000 in actual damages and $3 million in punitive damages, plus reasonable attorney fees. Maria Elena Garcia-Upson, spokeswoman for the USCIS south central region, which includes Texas, says “The policy for USCIS precludes us from talking about any pending litigation.” Neither Clarke nor his attorney, Sugar Land solo Bassey Akpaffiong, returned telephone calls seeking comment. U.S. District Judge Vanessa Gilmore presides over the case.
-- Mary Alice Robbins

Stiletto-shod criminal-defense lawyer chases man she says snatched her purse

Patty Tillman, a Fort Worth solo, declined a chance to be on television recently. What prompted the shot at the limelight? She chased a man who she alleges snatched her purse from the passenger seat of her red Mercedes. It happened Aug. 26 as Tillman sat parked in front of the Tarrant County district courthouse, a stone’s throw from the downtown Fort Worth police headquarters. The news of Tillman’s frantic but ultimately successful pursuit — for several blocks and up and down parking ramps — appeared first in the Fort Worth Star-Telegram. A good yarn, her story was made even better by the little factoid that during the chase Tillman wore 3-inch heels (yes, they were stilettos). All that running, she reports, ruined the shoes. As a criminal-defense lawyer, however, Tillman decided a TV appearance featuring an account of her chase “would be inappropriate.” Although she says she knows “the difference between my job as a criminal-defense lawyer and my role as a victim,” she didn’t want to promote further her pursuit of an alleged perpetrator in case prospective clients get the wrong idea about which side she represents in criminal court these days. Tillman, who has practiced for a dozen years, previously served as an assistant county attorney in Parker County and an assistant district attorney in Dallas County. She says although she would be more than happy to testify as an eyewitness against the alleged purse snatcher, she hopes he gets a good criminal-defense lawyer. The man’s lawyer did not immediately return a call seeking comment. Immediately after her purse allegedly was snatched, Tillman says, criminal defense was the farthest concept from her mind. Hopping out of her car and following the man as fast as she could, given her footwear, she says she commanded from the top of her lungs: “Drop it.” She was so loud and making such a commotion, she says, that the man did drop the purse. Several police officers and a crowd of people participated in the chase and were able to stop the man and hold him to the ground. Seeing him on the ground, Tillman says, she asked a nearby police officer — only partly in jest — if she could take the opportunity to swat the man with her purse (which she retrieved with all of its contents intact). The officer properly forbade any such assault, Tillman says. But she is still thinking about asking the man to pay for the ruined shoes.
-- Miriam Rozen

This week in Texas Lawyer

Salary & Billing Survey: Research editor Jeanne Graham crunches the number on firm billing rates and talks to in-house lawyers about what they're demanding from outside counsel.

Twinkle toes: Senior reporter Brenda Sapino Jeffreys looks at allegations that a Texas lawyer coached a witness in Florida with some top-tapping.

Double indemnity: Senior reporter John Council parses a Texas Supreme Court decision in a synthetic stucco case that involves statutory and contractual indemnity.

This week in Texas Lawyer history: Senior reporter John Council looks back at a marathon sunset hearing for the State Bar of Texas.

This old courthouse: Senior reporter John Council finds out how Nacogdoches ended up with a courthouse some lawyers confuse with a motor court.

Approach the bench: Senior reporter John Council hears a chilling tale that prompted a child -- who would one day become a judge -- to begin thinking of a life in the law. 

Newsmakers. Discipline. VerdictSearch. Inadmissible.

Flextime and equal pay: Kathleen Wu makes the case for why advocates for women lawyers need to push for flex-time as a way to get pay parity.

Make a plan: Chuck Duff outlines the key points a business plan needs to cover before attorneys form a new firm.

From parking to park at Dallas’ federal courthouse

Those who’ve passed by Dallas’s Earle Cabell Federal Building recently likely noticed that the courthouse’s most convenient parking lot is now occupied by heavy earth movers that have scraped said parking lot into a giant pile of dirt. Needless to say, there is no public parking in front of Dallas’ federal right courthouse now. “We’ve had some people show up late for meetings and things, assuming they had the parking,” says Sidney Fitzwater, chief judge of the Northern District of Texas, who is based in Dallas’ federal courthouse. So, a word to the wise: Get to the courthouse early for that morning hearing because parking close to 1100 Commerce Street is scarcer than it used to be. But the current inconvenience will be worth it in the future, Fitzwater says. That’s because the parking lot is going to be returned to nature, sort of.  The -ing lot will be removed, and it will soon become just a plain ol' park. “It’s going to be a nice park,” Fitzwater says. “I think that will be a nice asset for the courthouse to have.’’
--- John Council

High Court clarifies rules on legal assistant-based disqualification

For litigators who employ legal assistants (I believe that’s most of them), here’s a brand-new, must-read Texas Supreme Court opinion. The high court previously has weighed in on why and when a firm should be disqualified from a case because a legal assistant used to work for opposing counsel on the other side of that same case. In the past, the court has ruled that a firm can avoid disqualification if the firm instructs the legal assistant not to work on the matter and takes “other reasonable steps” to shield the legal assistant from working in connection with the matter. In today’s decision, In Re: Columbia Valley Healthcare System, the high court lays out what those other reasonable steps should be. “[A] simple informal admonition to a nonlawyer employee not to work on a matter on which the employee previously worked for opposing counsel, even if repeated twice and with the threat of termination, does not satisfy the ‘other reasonable measures’ a firm must take to properly shield an employee from the litigation,” Justice David Medina wrote for the court. “Instead the other reasonable measures must include, at a minimum, formal, institutionalized screening measures that render the possibility of the nonlawyer having contact with the file less likely.” Medina wrote, “We hold today that a firm must implement such measures to rebut the presumption of shared confidences.”
 --- John Council

3rd Court rules in divorce battle over Chihuahua

Let the clichés flow: It’s a dog-eat-dog world. Every dog has his day. A dog is man’s best friend. On Aug. 25, the 3rd Court of Appeals in Austin issued a memorandum opinion affirming a trial court’s judgment that allowed Brooke Ashley Calder to keep a Chihuahua named Clementine. Daniel Naeter Calder, who filed for a divorce from Brooke Ashley in 2009, had appealed to the 3rd Court, challenging a trial court’s judgment confirming that Clementine was Brooke’s separate property. The memorandum opinion was issued by a panel of three, including Justices Bob Pemberton and Alan Waldrop and the opinion’s author, Chief Justice J. “Woodie” Woodfin Jones. Jones writes that Clementine was purchased before the marriage took place and therefore was separate, not community, property. The partners in the dissolving marriage agreed about that but disagreed about whose separate property Clementine is. Why? Prior to the marriage, the couple commingled their separate funds in Daniel’s bank account; the disagreement is based on whose money purchased Clementine, the opinion states. Jones notes that Daniel asserted on appeal that no evidence supported the trial court’s finding that the funds Brooke put into Daniel’s account were held there for her benefit. But the chief writes that Daniel and Brooke testified that, after putting her paychecks into his account, he gave her the money either immediately or as she requested it. She put $948 into the account a few days before she purchased Clementine, and she testified that he agreed to let her buy a dog only if her own money paid for it, according to the opinion. The 3rd Court concludes that the evidence was sufficient to support the trial court’s judgment that Clementine belonged to Brooke. Zachary Brandl, an associate with Weinman & Associates in Austin, represents Daniel. Asked how much his client spent on appealing the case, Brandl says, “Too much.” He says he did advise his client not to pursue an appeal of the trial court’s judgment. Brooke’s lawyer, James Arth, an Austin solo, says he handled the case on a pro bono basis and that Amy Lambert, an associate with a firm with which he shares office space, wrote the brief. Lambert, an associate with the Law Office of Jennifer Tull, says it was her first appellate brief. Asked why she chipped in her work pro bono, she says, “I have a dog. When I realized the case was going to appeal, I couldn’t leave her high and dry.” Arth has not yet reached his client, who has moved with Clementine to Manhattan for graduate school, to tell her about the decision. But he left a message. Does Clementine listen to Brooke’s voicemails?

-- Miriam Rozen

Lawyer pleads not guilty to possession, distribution of child pornography charges

On Aug. 25, Stephen Jabbour, an attorney in Victoria, appeared at an arraignment hearing in U.S. District Court for the Southern District of Texas in Houston and pleaded not guilty to charges that he possessed and distributed child pornography, according to his defense lawyer John Floyd III of Houston. An indictment filed in the U.S. District Court for the Southern District of Texas Aug. 19 and unsealed Aug. 20 states that Jabbour faces four counts of possession of child pornography and seven counts of distribution of child pornography. At a detention hearing held immediately after Jabbour’s arraignment, prosecutors sought to have Jabbour detained pending trial, Floyd says. But, according to the defense lawyer, the federal judge did not detain Jabbour, instead setting a $250,000 bond. Floyd says as a result of what they view as a favorable outcome at that detention hearing, he and his client “are optimistic about the future of the case.” Angela Dodge, a spokeswoman for the U.S. Attorney’s Office for the Southern District, writes in an e-mail that the office will not provide comment. Uuntil he resigned on Aug. 20, Jabbour served as the chairman of the Democratic Party in Victoria County, according to Floyd. The State Bar of Texas online attorney directory lists Jabbour as a solo practitioner and 1977 graduate of the University of Texas School of Law, and Floyd confirms that information. Jabbour did not immediately respond to a call to his office.

-- Miriam Rozen