Texas Lawyer Blog

Fee for multistate component of Texas bar exam to rise

Bar exam test-takers of the future will pay $20 more to sit for the grueling test, after the Texas Supreme Court on Dec. 12 approved an examination fee increase. Julia Vaughan, executive director of the Texas Board of Law Examiners, says it’s the first bar exam fee increase in 13 years. She says the TBLE has been “tightening its belt” ever since its cost for the multistate component of the exam shot up by $18 since 2009. An outside organization creates and sets the price for the multistate portion of the Texas Bar exam, she explains. “This is to try to essentially recover the cost increase,” says Vaughan, adding, “It’s always been our goal to maintain fees as low as possible. The point was just reached — we had to ask the court to allow us to recover that.” Students spend a full day of the two-and-a-half-day bar exam on the multistate section. Vaughan says the TBLE board must meet to decide when to implement the increased fee.

-- Angela Morris

This week in Texas Lawyer

The Impact Players: Lawyers, a judge and a lawmaker who had an impact in the year (almost) gone by.

The Tongue-in-Cheek Awards: With 2011 winding down, it's time to look back at the miscues, missteps and, in one instance, misplaced apprehension that marked the year for the Texas legal community.

2011 Legal Timeline: A month-by-month highlight reel of the Texas legal community.

Substantive Law Developments: Quick, what's the most important thing that happened this year in Texas substantive law?

Quotes of the Year: She said what!?

Top 20: What did readers click on on TexasLawyer.com?

Big firm switch: Senior reporter Brenda Sapino Jeffreys finds out why a group of lawyers including Ben A. Brooks III (pictured) is leaving Vinson & Elkins and joining Bracewell & Giuliani.

Changes afoot: From the attorney grievance system to e-filing and new rules of civil procedure, reporter Angela Morris details recent topics on which the Texas Supreme Court and its committees have been working.

Approach the bench: Reporter Angela Morris speaks with 359th District Court Judge Kathleen Hamilton (pictured) about her songwriting abilities and practicing in her courtroom.

 Corrections. Inadmissible. Newsmakers.

Top 10: James C. Ho and Michael D.Y. Sukenik review 10 of the 5th Circuit’s most important opinions of 2011.

Computer Fraud and Abuse Act 101: Shawn E. Tuma teaches lawyers how to bring civil causes of action related to wrongful access of a computer to do harmful things.

U.S. District Judge David Folsom informally swears in Rodney Gilstrap, gives back hundreds of patent infringement cases Folsom took over upon departure of T. John Ward

Right now, there is a giant smile firmly planted on the face of David Folsom (pictured, left), chief judge of the Eastern District of Texas, and I’ll let him tell you why: “I informally swore the oath to Rodney Gilstrap,” (pictured, right) he says of the new U.S. district judge for the Eastern District’s Marshall Division, a jurisdiction known nationally for its busy patent docket. And it’s also known as the docket built by former U.S. District Judge T. John Ward. Ward long ago advocated for streamlined patent rules, which then brought cases streaming onto his docket. When Ward left the bench in October, Folsom took over the hundreds of patent infringement cases that Ward left behind. And yesterday, Folsom says, he signed an order officially reassigning those cases to Gilstrap, Ward’s replacement. “And I sent all of those Ward cases back to him,’’ Folsom says. “That’s why I’m in a good mood today. It’s a good mood for Rodney, a good mood for the district and a good mood for me personally.” Gilstrap didn’t immediately return a call for comment — and I can understand why.

—  John Council

Lawyer trades appellate briefs and commercial litigation for running a park for food trucks that feature everything from vegan entrees to Korean barbecue

While many lawyers have spent the run-up to the holidays ogling their bonuses and hoping for time off, entirely different issues have consumed the life of Chris Kruger (pictured).

The ex-lawyer now owns and operates his Fort Worth Food Park, and as Christmas approaches he’s focused on organizing the food trucks to serve holiday-themed dishes in a celebration on Saturday.

Securing a Santa to pose for photos with diners is just one more step in his metamorphosis from lawyer to entrepreneur. The former associate with Shannon Gracey Ratliff & Miller in Dallas used to tackle the intellectual challenges of writing appellate briefs and preparing for commercial litigation. Since he quit the firm in October, he spends the day much differently.

“Now a lot of what I’m doing is talking to people, recruiting people for the park or promoting the park. It’s very much people-based at this point,” says Kruger, the managing member and the only employee of CDK Ventures, which he created to own and operate the food park.

Kruger says he and his wife share “a passion for food” and they wanted a food park in Fort Worth after observing the “food truck culture” in Austin. Kruger says he liked eating outside with a vast array of meal choices in one convenient location. Kruger’s business charges food trucks a fee to operate inside the park. Available edibles so far range from tacos to cupcakes, vegan entrees to Korean barbecue.

Before working at Shannon Gracey from 2009 to 2011, Kruger was an associate with Kelly Hart & Hallman in Fort Worth from 2007 to 2009. He served as a briefing attorney at the 14th Court of Appeals in Houston for one year just after earning his law degree in 2006 from the University of Houston Law Center.

Kruger says he used his “lawyerly background” every day for months to work with the city of Fort Worth to launch the food park. He successfully argued before a city board to gain a zoning variance, and he worked with another department to obtain construction permits. He also handles everyday tasks such as recruiting vendors, marketing and cleaning the park.

Coincidentally, a former lawyer from Austin also runs a taco truck operating in the food park. Kruger says he has talked with Michael McDermott of Fort Worth’s YES! Taco about their common backgrounds. Kruger says, “I think lawyers are just, a lot of times, creative thinkers and kind of big-box thinkers.”

McDermott says he has enjoyed working with Kruger, noting, “It’s made it easy to work with him, because we do have similar backgrounds and similar ideas of what we would like to do now.”

-- Angela Morris

Fifth Circuit judge issues strongly worded dissent

Fifth U.S. Circuit Court of Appeals Judge Jerry E. Smith issued a strongly worded dissent in Bobby W. Swindle Jr. as Administrators of the Estate of Morgan Taylor v. Livingston Parish School Board, et al. Smith takes pointed exception to the court’s Nov. 2 decision denying a rehearing en banc in the case. He writes in the dissent that the appeal should have been dismissed for failure to prosecute, but instead the court denied an en banc rehearing of a panel opinion that “invents a claim that punishes a school official who expelled a student who had abused drugs.” Smith writes in his dissent: “The panel opinion is a shameless exercise in appellate advocacy on behalf of an undeserving party at the expense of a well-intentioned school official who has done no wrong. I respectfully dissent from the denial of rehearing en banc.”

-- Brenda Sapino Jeffreys

Judges, district clerks, e-filing reps weigh in at Texas Supreme Court hearing on e-filing

There were two points on which nearly everyone agreed during a Dec. 8 Texas Supreme Court hearing about the pros and cons of creating a new e-filing system in Texas modeled after the federal courts’ system, PACER.gov: Texas needs a modern, statewide e-filing system, and the Legislature must appropriate funds to create a new system. Comments by a Texas Supreme Court justice indicate he thinks it’s an unlikely appropriation, considering the economy. The high court heard testimony from judges, district clerks and representatives of e-filing services.

The hearing precedes the September 2012 expiration of the state’s contract with NIC Inc., a company that operates the current e-filing system through the online portal Texas.gov. The Office of Court Administration this summer issued a request for information from companies, seeking ideas for creating a new system.

Harris, Montgomery and Jefferson counties use a different e-filing system than the rest of the state, and much of the hearing touched on whether counties should all use the same system. Harris County uses “free fax filing” and the state's e-filing system, and the other two contract with Lexis for e-filing.

Fourth Court of Appeals Justice Rebecca Simmons said during the hearing she thinks the state needs a new system and the high court should mandate that each county use it and adopt uniform rules. The Legislature would need to pass laws and appropriate funding to make it happen, but eventually the system would pay for itself, said Simmons, chairwoman of the court’s Judicial Committee on Information Technology.

She said if large counties use separate e-filing systems, the state won’t collect enough revenue to cover the system’s operational costs.

Harris County, which is the largest in Texas, currently uses its own free fax filing system and the state’s e-filing system. Modern fax technology creates digital files from faxed documents, and then the digital records enter the county’s computerized case management system.

Harris County District Clerk Chris Daniels and 151st District Judge Mike Engelhart both told the court they’d like a system like PACER in Texas, and they think it’s important to allow people to e-file for free.

Daniels said Harris County experienced problems with the state’s e-filing system, such as issues with accessing records, corrupt documents and the payment system.

Angela Skinner, director of corporate communications and investor relations for NIC Inc., emailed the following statement from Erin Hutchins, director of portal operations, Texas.gov: “Texas.gov is committed to providing best-in-class online services and customer service support for Texas businesses and citizens. We value the input of our county government partners, and have provided several enhancements and customized solutions for the Courts eFiling service since we began managing it in 2009. Even with a new Courts eFiling solution replacement anticipated for 2012, we continue to improve the existing service in ways that benefit all of our current county partners.”

Daniels also told the court he would freely give the county’s fax filing software code to other counties, but he still prefers a PACER-like system. Harris County runs its own fax filing system.

Engelhart said Harris County’s fax filing system has increased courtroom efficiency while making it easier and cheaper for people to file court documents.

Sheri Woodfin, the district clerk of Tom Green County, said she thinks rural counties like hers are not ready for an e-filing mandate because judges want paper copies, attorneys like in-person filing, and small counties don’t have the necessary equipment or technology staff for an e-filing mandate.

Hutchins told the court at the hearing that the current system is based on 2001 technology and the state should “scrap” it and start over. Creating a new system could cost $8 to $10 million and take up to one year to complete, Hutchins said.

During the hearing, Justice Paul Green, the court’s liaison to the Judicial Committee on Information Technology, said the state would fall short on funding for a new e-filing system. He said a lack of funding also led to the current system, which requires people to pay to e-file documents.

Later in the hearing, Green said court technology has changed with the times, from the typewriter to the word processor. He said the next step is to eliminate paper.

“We must be realistic; it’s going to happen,” said Green. He said he thinks Texas needs a statewide standard for e-filing, because it’s confusing for each county to have its own system. The court must think about how to implement a statewide system and how to pay for it, Green said.

-- Angela Morris

Editor's note: The above blog has been corrected to note that Harris County uses its own free fax filing system and the state’s e-filing system.

Committee finalizes proposed rules for motions to dismiss to add to Texas Rules of Civil Procedure

The Texas Supreme Court Advisory Committee has finalized a proposal for rules for motions to dismiss in the Texas Rules of Civil Procedure. Meanwhile, the committee may begin discussions in January about rules for expedited trials.

David Peeples (pictured), the chairman of the subcommittee that drafted the motion-to-dismiss rules, says it’s now up to the Texas Supreme Court to review the proposal, make necessary changes and adopt the final rules.

House Bill 274, the 2011 loser-pays law, required the high court to create the motion-to-dismiss rules and rules for expedited trials in cases where total claims are $100,000 or less.

After hours of discussion on Dec. 9 about how the rules should define a claim with “no basis in law or fact,” the committee voted to include language that reads, “On motion a court must dismiss a claim that has no basis in fact or that is not supported by existing law or by a reasonable argument for extending, modifying, or reversing existing law.”

The proposal also lays out rules for what information a motion must include, the process for a court to decide a motion, a party’s right to amend its pleading, the award of attorney’s fees to the prevailing party and more.

“I’m kind of hoping my part’s done, and the committee’s part is done too,” says Peeples, presiding judge of the 4th Administrative Judicial Region in Bexar County.

But the process is still underway for the expedited-trial rules. Former Chief Justice Thomas Phillips, who chairs the Task Force for Rules in Expedited Civil Actions, says his group plans to meet for the last time Dec. 16 and wants to present a draft to the advisory committee in mid January.

He told the advisory committee that one main debate in his task force is whether an expedited trial should be voluntary or mandatory. The task force split into two groups to create two proposals: one set of rules for voluntary expedited trials and one for mandatory expedited trials.

The group also debated whether the $100,000 cap must include awards of attorney’s fees and pre- and post-judgment interest, and it discussed whether to draft a rule prohibiting judges from allowing cases set for expedited trials to enter mediation.

“That has drawn the ire of large groups of mediators but not all of them,” said Phillips, a partner in Baker Botts in Austin.

-- Angela Morris

In wake of Grievance Oversight Committee report and responses, Texas Supreme Court asks State Bar of Texas for more info on training of staff members of the Client Attorney Assistance Program

The Texas Supreme Court has asked the State Bar of Texas to describe how it trains staff members of the Client Attorney Assistance Program, which resolves minor disputes between clients and their lawyers.

The high court’s request comes after the Grievance Oversight Committee issued a report this summer that recommended changes to CAAP and the State Bar’s ombudsman position, among other things. The GOC studies the state’s attorney grievance system and issues an annual report to recommend improvements.

The court reviewed the GOC’s report and responses from the State Bar, members of the Texas Disciplinary Rules of Professional Conduct Committee, the Texas Coalition on Lawyer Accountability, and others.

Chief Justice Wallace Jefferson (pictured) sent a letter Dec. 7 to GOC Chairwoman Judy Sebesta, responding to the recommendations about CAAP. He copied the letter to State Bar President Bob Black and Michelle Hunter, the State Bar’s executive director.

Jefferson wrote, “We are not persuaded that major reforms are necessary at this time.” But he asked the State Bar to describe the training CAAP staffers receive “to distinguish between a complaint that, if true, would subject an attorney to discipline from a minor complaint that would not.”

The court plans to discuss some GOC recommendations about the ombudsman with the Bar. Jefferson wrote, “We take seriously your recommendation that complaints should be directed to CAAP, rather than the Ombudsman. . . . We also question, as you do, the Ombudsman’s current duty to serve as a media contact.”

Black says the Bar looks forward to a discussion about the ombudsman. He says he can’t recall the Supreme Court issuing a letter in response to GOC reports in the past and he welcomes the high court’s guidance.

“I appreciate the court’s view that no major reforms to the Client Attorney Assistance Program are necessary at this time,” says Black, managing shareholder of MehaffyWeber in Beaumont. He says he appreciates that the court shares the Bar’s “feeling that training is an ongoing thing and we should always review it and improve it where possible.”

Sebesta says she plans to review Jefferson’s letter with her fellow GOC members at a meeting this week and declines further comment. Through court spokesperson Osler McCarthy, Jefferson says his letter speaks for itself and he declines further comment. Neither Hunter nor Maureen Ray, ombudsman and spokeswoman for the Bar’s Office of Chief Disciplinary Counsel, immediately returned a telephone call seeking comment.

-- Angela Morris

Five individual HLF defendants seek to file consolidated en banc appeal challenging convictions

Five individual defendants associated with the Holy Land Foundation for Relief and Development will appeal the 5th U.S. Circuit Court of Appeals’ ruling that upheld their convictions and sentencing. On Dec. 7, a three-judge panel of the 5th Circuit ruled that, although the HLF trial was not “perfect,” the five individual defendants were “fairly convicted.” Judge Carolyn Dineen King wrote the 170-page ruling in USA v. Mohammad El-Mezain, et al., which Judges Emilio M. Garza and James E. Graves Jr also signed. The panel upheld the convictions and sentences of Mohammad El-Mezain, Ghassan Elashi, Shukri Abu Baker, Abdulrahman Odeh and Mufid Abdulqader. According to the opinion, the jury convicted the five of conspiring to provide material support to a foreign terrorist organization. King wrote, “The [five individual] defendants raise a host of issues challenging both their convictions and their sentences, including numerous errors that they claim deprived them of a fair trial. While no trial is perfect, this one included, we conclude from our review of the record, briefs, and oral argument, that the defendants were fairly convicted.” On Dec. 12, the five individual defendants filed a motion to file a consolidated en banc appeal and asked for a two-week extension, until Jan. 4, to file that appeal. The 5th Circuit panel also dismissed for lack of jurisdiction the appeal filed on behalf of the now defunct nonprofit corporation HLF. According to the 5th Circuit panel opinion, a jury also convicted HLF of conspiracy. Marlo Cadeddu, a Dallas solo, represents Abdulqader. Nancy Hollander, a partner in Freedman Boyd Hollander Goldberg Ives & Duncan of Albuquerque, New Mexico, represents Abu Baker. Both lawyers decline comment. Gregory Westfall, a Fort Worth solo, represents Odeh. Linda Moreno of the Law Office of Linda Moreno in Tampa, Fla. represents Elashi. Joshua Dratel of the Law Offices of Joshua Dratel in New York represents El-Mazain. None of the three lawyers immediately returned a call seeking comment. Northern District of Texas U.S. Attorney Sarah R. Saldaña writes in a statement issued by her press office, “The Fifth Circuit’s affirmance of the convictions and sentences in this case cements this office’s unyielding resolve to prosecute those who provide financial support to terrorist organizations.” Spokeswoman Kathy Colvin declines further comment on Saldana’s behalf. The U.S. Attorney’s Office for the Northern District of Texas in Dallas prosecuted the HLF and the five individual defendants.

-- Miriam Rozen

Fourteen Vinson & Elkins partners who practice public finance/tax/municipal securities to go to Bracewell & Giuliani

A group of 14 public finance/tax/municipal securities partners plans to leave Vinson & Elkins over the next few weeks to join Bracewell & Giuliani as partners in January. Additionally, 13 to 16 associates and counsel who work with the partners also will make the move, says Mark Evans, managing partner of Houston-based Bracewell. Bracewell announced today that partners Ben A. Brooks III (pictured), W. Glenn Opel and Barron Wallace will lead its public finance practice, which is based in Texas and Washington, D.C. Evans says Bracewell long has sought to expand its finance capabilities with a larger public finance practice, and the V&E group is a “great addition” to the firm. Evans says the firm represents a large number of school districts and other public entities, and the public finance practice supports that client roster. The 14 partners making the move are: Charles Almond, Cristy Edwards, Jonathan Kelly Frels, Steven Gerdes, R. Todd Greenwalt and Wallace in Houston; Elizabeth Rippy Bower, Opel and Victoria Ozimek in Austin; Brooks, Robert Collins III, Jonathan Leatherberry and George Rodriguez in Dallas; and Paul Maco in Washington, D.C. Opel will split his time between Austin and San Antonio. Brooks says the group is excited about the move to Bracewell, because the firm will provide opportunities to expand the practice. “Long term, we just felt like there might be a better alignment at a firm that has a longstanding history of representing governmental entities both in Texas and Washington and where public finance could grow without some of the conflict issues that we’ve had over the last few years,” Brooks says. He says the conflicts primarily stem from V&E’s strong condemnation practice; V&E lawyers represent private landowners in condemnation disputes with government entities such as the Texas Department of Transportation, which is also a source of public finance work, he says. Also, Brooks says, Bracewell has a San Antonio office, which is a potentially lucrative market in the public finance area. Brooks and Joe Dilg, managing partner of Houston-based V&E, say the group’s departure is amicable. Dilg says Bracewell is a better long-term fit for the public finance group, because V&E’s strategic plan calls for devoting resources to growth in other areas, such as energy, finance and litigation. “It’s a great group, and something I think will fit very well with Bracewell,” he says.
-- Brenda Sapino Jeffreys