Texas Lawyer Blog

Videoblog: Meet the general counsel

Texas Lawyer's Thomas Phillips talks with Dawnn Repp (pictured), Freeman senior vice president, general counsel, about her "dream job" and what she expects from outside counsel.

-- Anne K. McMillan

Reversed & Remanded videoblog: High court health-care arguments

The U.S. Supreme Court has wrapped up its three days of oral arguments on the health-care overhaul. In this week’s Reversed & Remanded videoblog, senior reporter John Council talks with Dallas appellate solo Chad Ruback (pictured) about the possibility of prognosticating based on questions judges pose at oral argument and how the nation's highest court handles its post-argument conference compared to how the state's highest court does.

-- Anne K. McMillan 

Carl Reynolds, administrative director of the Texas Office of Court Administration, marks his last day at OCA

Carl Reynolds (pictured), administrative director of the Texas Office of Court Administration, says today is his last day at work, and he plans to play a round of golf tomorrow to celebrate his retirement.

On April 16 he starts work as a senior legal-policy adviser with the Justice Center at The Council of State Governments, a national nonprofit with an Austin office. He also will be collecting an annuity and pension for 27 years of state service. His new office is just two blocks from the OCA, where he’s worked since 2005.

“I’ve been mostly excited about the new gig and having two incomes. . . . But I’ve been experiencing kind of a backlash of emotion this week,” Reynolds says, noting he feels “sadness” at leaving a “great group of people.”

Reynolds says in his tenure he’s most proud that the OCA: helped create the Permanent Judicial Commission for Children, Youth and Families to address child abuse and neglect issues; is collaborating with other governmental entities to address access-to-justice issues for the poor; and launched successful information-technology projects including, among other things, an appellate court electronic-filing system and an automated registry database, so judges can research litigants’ criminal backgrounds and other information.

Starting Monday, OCA general counsel Mena Ramon will be interim director until the Texas Supreme Court hires a new permanent administrative director.

“We’re very happy for Carl. He’s been in state government a very long time. He’s moving onto a new chapter in his life. But we’re very sad to see him go. . . . [H]e expanded our horizon and helped us grow as an agency and as individuals,” she says.

Ramon says Chief Justice Wallace Jefferson and other justices are already interviewing applicants. Reynolds notes that he expects the court to name his successor sometime in April.

Jefferson didn’t immediately return a telephone message seeking comment.

-- Angela Morris

Morning docket

Murder charges filed in Beaumont courthouse rampage (Houston Chronicle)

Ex-Locke Lord Partner's Tale Shows Toll That Thinning of Large Firm Ranks Can Take (The AmLaw Daily)

The Future of Law: Old-Fashioned Client Relationships and Warnings for Solos (ABA Journal)

In Texas, a Never-Ending Battle Over Judicial Elections (The Texas Tribune)

Annual Report (CourTex)

Bexar commissioner argues open records act does not apply (San Antonio Express-News)

High Court quick to decide cases, but slow to tell (The Washington Post)

On Eve of Pay Raise, Many Judges Say 17 Percent Hike Is 'Too Little, Too Late' (New York Law Journal)

-- Angela Morris

Two former Scalia clerks go head to head at U.S. Supreme Court oral argument, but Texan prevails

Last June, U.S. Supreme Court Justice Antonin Scalia called Baker Botts associate Evan Youngto see if the Austin lawyer would argue for the U.S. Department of Justice in an appeal. In that case, the government had decided to oppose a 5th U.S. Circuit Court of Appeals opinion in its favor, but Scalia wanted Young to argue in favor of affirming the 5th Circuit opinion.

On March 28, Young, who had clerked for Scalia, got another call from the high court and learned the court ruled in his favor. “It was affirmed, and of course that was the word I wanted to hear,” Young says of his conversation with a Supreme Court clerk. Even more significant to Young, Scalia authored the court’s majority opinion in Setser v. United States.

“Scalia has already done so many opinions in 2011. The likelihood of him having the opinion in this case was small,” Young says of his former boss. In Setser, the high court had to decide if a district court has authority to order a federal sentence to run consecutively with an anticipated, but not-yet-imposed, state sentence. The 5th Circuit ruled in May 2010 that the district court could do so. “The [Supreme] Court decided that the judge — and not the Bureau of Prisons, not the jailer — will have the authority to decide in cases like Setser,” Young says.

Young says the opinion is important for lawyers and their clients, because it helps ensure that judges make sentencing decisions. Scalia delivered the opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor and Elena Kagan. Justice Stephen Breyer wrote a dissenting opinion, joined by Justices Anthony Kennedy and Ruth Bader Ginsburg.

Setser’s lawyer, Jason Hawkins, who works at the Federal Public Defender’s Office for the Northern District of Texas, did not immediately return a telephone message seeking comment. Neither did William Jay, an assistant solicitor general in Washington, D.C., who argued for the Department of Justice. In “just another Scalia factoid,” Young says, Jay also clerked for Scalia, and their tenures as clerks overlapped by a couple weeks.

-- Brenda Sapino Jeffreys

Bizarre jurisdiction goes right along with bizarre federal charge

The affidavit filed along with the government’s criminal charge against a JetBlue pilot on March 28 in the Northern District of Texas details the bizarre statements he allegedly made as he had to be held down by crew and passengers while the plane he’d been piloting from New York City to Las Vegas was landed in Amarillo. Those statements, according to the affidavit, allege that Clayton Frederick Osbon yelled “jumbled comments about Jesus, September 11th, Iraq, Iran, and terrorists. He also yelled ‘Guys, push it to full throttle.’”

According to that affidavit, a flight attendant suffered injuries during the struggle on the plane. The affidavit was filed along with a charge against Osbon for “Interference with Flight Crew Members and Attendants.”

Osbon could not be located for comment, and an attorney has not yet filed an appearance for him in federal court. Christy Drake, an assistant U.S. Attorney who is handling his case, did not immediately return a call for comment.

If it seems odd that the federal government would handle what amounts to a simple assault case, that’s because they have to, explains Paul Coggins, a former U.S. Attorney for the Northern District of Texas from 1993 to 2001. “The reason is when the plane is in the air, the U.S. Attorney sort of becomes the district attorney at that point,” says Coggins, who is now a partner in the Dallas office of Locke Lord. “It’s kind of bizarre. It can be on takeoff or at the destination or anywhere in between.’’

Coggins saw his share of such cases while he was U.S. Attorney because his jurisdiction included the busy D/FW International Airport. But still, the JetBlue pilot case is rare. Usually, airline disturbance cases involve drunk or unruly passengers — not the plane’s crew, Coggins says. “I don’t remember a pilot case. In all of the cases I remember it was some kind of obstreperous passenger. It was always a bad passenger.’’
--- John Council

Taco Taco trademark trademark: quick resolution in food fight

Tacos: They’re a quick meal and the subject of speedily resolved federal litigation in the Alamo City.

On March 19, Senior U.S. District Judge Harry Lee Hudspeth of the Western District of Texas in San Antonio signed a final judgment in a trademark case. The move came less than two months after Taco Taco Café Inc. filed its initial complaint in Taco Taco Café Inc. v. Fouad Hijazi, et al.

On Jan. 26, Taco Taco Café, which operates a restaurant named TACO TACO in San Antonio, filed a complaint against Fouad Hijazi and F&A Wireless Inc., which is the Dallas-based company for which Hijazi acts as an agent.

In its complaint, Taco Taco Café alleged that Hijazi and F&A Wireless operated two restaurants, one in Dallas and the other in The Colony, using the name Taco Taco, and had violated the trademark TACO TACO, which Taco Taco Cafe had registered in 2008.

Taco Taco Café also alleged in its complaint that it had received numerous awards from publications, including Bon Appetit magazine, recognizing it for serving “the best tacos in America” and “the best breakfast tacos.” The complaint alleged that the Dallas and The Colony restaurants operated by Hijazi and F&A Wireless confused the consuming public.

The complaint included claims of trademark infringement and unfair competition against both defendants and sought to bar Hijazi and F&A Wireless from using the name Taco Taco to operate restaurants and from applying for a trademark with that name.

In an answer filed Feb. 22, Hijazi, who represents himself in the litigation, denied all the allegations and wrote that was “totally unaware of a Taco Taco café in San Antonio at the time” he opened his restaurants and that he had “not intended to infringe on any one but rather started a small restaurant in good faith.”

He also wrote: “When picking a name for my business I did a search for Taco Taco in Dallas County and I was told by city employees that the name was available & was not registered to anyone in Dallas county. The name Taco Taco is not a known brand in Dallas metro area,” as the plaintiffs claim, he wrotes. But he wrote that his logo and menu items “are totally different” than that of the plaintiff. He wrote, “[W]e have not benefited in any way or intended in any way to copy or use the name Taco Taco. . . . ” He wrote he has expressed to the other side “my willingness to adopt some mark or name not confusingly similar to that used by” Taco Taco Café Inc., within a reasonable time.

Taco Taco Café filed an unopposed motion for settlement on March 15. The judge signed on March 19 the final judgment, which orders Hijazi and F&A Wireless to stop using the name Taco Taco for his restaurants within 30 days.

F&A Wireless did not file an answer and does not have an attorney listed on PACER, the federal courts’ online filing system.

Reached at his restaurant, Hijazi, who says he is also partner in F&A Wireless, says the litigation was resolved outside of the courtroom. Asked about what he plans to use as a new name, he says, “We’re working on it. We’re still working on it.”

Ted Lee, a shareholder in San Antonio’s Gunn, Lee & Cave, who represents Taco Taco Café, says, “Basically the other side agreed to change its name.” Lee adds about his own corporate client: “They are in the process of franchising, so this is very important to them.”

-- Miriam Rozen

Morning docket

Corporate Scorecard 2012 (The American Lawyer)

ISPs Must Turn Over Customer Names in Porn File-Sharing Suit (The Legal Intelligencer)

Study: Prosecutors Not Disciplined for Misconduct (The Texas Tribune)

Twitter coverage of Supreme Court gets shut down (Thompson Reuters)

As health care arguments close, fate of law seems uncertain (The New York Law Journal)

DOJ: Legislation Addressing Discovery 'Unnecessary' (The BLT: The Blog of LegalTimes)

Typography turned upside down (Texas Appellate Watch)

-- Angela Morris

Dallas lawyer represents clients contemplating litigation against Justin Bieber

Dallas entertainment lawyer Emily Horton says she represents two new clients who are contemplating litigation against Justin Bieber, the uber-popular teenage crooner.

Horton alleges that on March 7, Bieber tweeted, “Call me right now . . .” and gave a phone number minus the last digit. That number, starting with the Dallas 214 area code, was similar to phone numbers belonging to her clients, one of whom she identifies as Dilcie Fleming. Fleming has had the same telephone number for the past 60 years, Horton says.

Horton declines to fully identify the other client, Kent, but she says he has had the same phone number for at least two decades.

Neither of her clients wants to change their phone numbers; rather, they seek “a friendly resolution” with Bieber, Horton says. If that doesn’t happen soon, Horton says she will send a demand letter threatening litigation for damages she alleges her two clients suffered from the deluge of calls they are receiving.

Horton, a 2005 graduate of Southern Methodist University Dedman School of Law, says she called but has not yet received a response from Melissa Victor, a spokeswoman for Bieber.

Victor did not immediately return Texas Lawyer’s phone call seeking comment.

-- Miriam Rozen

Counties served by Regional Public Defender for Capital Cases get cash back

The Lubbock-based office for the Regional Public Defender for Capital Cases recently presented a substantial refund to the counties it serves in the 7th and 9th Administrative Judicial Regions.

Precinct 1 Lubbock County Commissioner Bill McCay says the public defender office presented a check for $408,334 to 77 counties at the Texas Association of Counties judicial education session held March 22 in Lubbock. “We are getting back $64,801,” McCay says, referring to Lubbock County’s share of the refund.

David Slayton, Lubbock County’s director of court administration, says each participating county in the two judicial regions is receiving 45 percent of its 2012 contribution to the public defender’s office as a refund.

Jack Stoffregen, the regional office’s chief public defender, says the refunds are due to the hard work and dedication of his staff since the office opened on Jan. 1, 2008. Stoffregen says he stresses to his staff the need to be effective, efficient and ethical. “We’ve been effective, and we’ve been ethical.” Stoffregen says. “This just highlights that we’ve been efficient as well.”

McCay says the efficient management allowed the office to build a fund balance since it opened, which made the refund possible. The office kept about $495,000 in its reserve fund to cover operations for six months and returned the rest, McCay says. He says the office not only refunded money to the counties but also has saved them thousands of dollars by providing representation to indigents in capital cases.

Slayton says capital murder cases are estimated to cost a county between $150,000 and $1 million if the death penalty is sought. The office is estimated to have saved participating counties in the 7th and 9th regions $637,000 in the first two years of its existence, Slayton says.

Elaine Nauert, the program’s office administrator, says the office opened 15 capital cases and closed nine in fiscal year 2012.

Texas Court of Criminal Appeals Presiding Judge Sharon Keller, chairwoman of the Texas Indigent Defense Commission, which provided funding for the regional office, writes in a statement, “We had high hopes from this program when we funded it in 2007. It has met and exceeded our expectations so far.”

Slayton says that 77 of the 85 counties in the 7th and 9th judicial regions opted to participate in the program, which has expanded to serve an additional 107 counties in other regions.

Stoffregen says the program currently has offices in Lubbock, Midland, Amarillo, Uvalde, Kingsville and Burnet and expects to have an office in Angleton soon.

Slayton says the office will continue expanding this year and is expected to serve 240 of the 254 counties in Texas by October.
-- Mary Alice Robbins