TALE OF ONTENTS - Dallas Bar Association Resource Guide 2015.pdf · TALE OF ONTENTS Contents The Courts ... Dallas Division Earle Cabell Federal Building 1100 Commerce Street,

TABLE OF CONTENTS

Contents The Courts ______________________________________________________________________________________________ 1

Tips to Understanding the Law __________________________________________________________________ 11

Access to the Courtroom __________________________________________________________________________ 12

Alternative Dispute Resolution ___________________________________________________________________ 15

Appellate Law and Practice _______________________________________________________________________ 18

Construction Law ____________________________________________________________________________________ 21

Corporations and Governance ___________________________________________________________________ 23

Defamation: Libel and Slander __________________________________________________________________ 26

Eminent Domain _____________________________________________________________________________________ 31

Environmental Law __________________________________________________________________________________ 34

Family Law ____________________________________________________________________________________________ 37

The Freedom of Information Act ________________________________________________________________ 40

Gag Orders ____________________________________________________________________________________________ 44

Health Law ____________________________________________________________________________________________ 46

Immigration Law _____________________________________________________________________________________ 48

Legal Issues in Newsgathering __________________________________________________________________ 51

Probate Law ___________________________________________________________________________________________ 55

Reporter’s Privilege _________________________________________________________________________________ 58

Rule 76a ________________________________________________________________________________________________ 60

Tax Law _________________________________________________________________________________________________ 63

Texas Public Information Act _____________________________________________________________________ 66

Tort & Insurance Practice _________________________________________________________________________ 72

A Civil Action Described ___________________________________________________________________________ 74

Roles of the Court ___________________________________________________________________________________ 82

A Criminal Case Described ________________________________________________________________________ 85

Criminal Disposition Codes _______________________________________________________________________ 87

TABLE OF CONTENTS

Frequently Asked Questions ______________________________________________________________________ 90

Texas Disciplinary Rules of Professional Conduct __________________________________________ 92

Legal Definitions _____________________________________________________________________________________ 97

THE COURTS

Page 1

The Courts

U.S. District Courts – Northern District of Texas

Dallas Division

Earle Cabell Federal Building

1100 Commerce Street, Dallas, Texas 75242 Phone (214) 753-2200

www.txnd.uscourts.gov/judges/index.html

Hon. Sidney A. Fitzwater, Chief Judge

Room 1528 -- Earle Cabell Federal Building (214) 753-2333

Hon. Jorge A. Solis


Hon. Sam A. Lindsay Room 1544 -- Earle Cabell Federal Building (214) 753-2365

Hon. Barbara M.G. Lynn


Hon. David Godbey


Hon. Ed Kinkeade Room 1625 -- Earle Cabell Federal Building (214) 753-2720

Hon. Jane Boyle


Hon. A. Joe Fish, Senior Judge


Hon. Robert B. Maloney, Senior Judge (214) 753-2201

http://www.txnd.uscourts.gov/judges/index.html

THE COURTS

Page 2

U.S. Bankruptcy Courts

Earle Cabell Federal Building

1100 Commerce Street, Dallas, Texas 75242 Phone (214) 753-2000

www.txnb.uscourts.gov/judges-info

Hon. Barbara J. Houser, Chief Bankruptcy Judge


Hon. Harlin D. Hale


Hon. Stacey G.C. Jernigan Room 1420 -- Earle Cabell Federal Building (214) 753-2040

U.S. Magistrate/Judges – Northern District of Texas

Earle Cabell Federal Building 1100 Commerce Street, Dallas, Texas 75242

U.S. District Clerk’s Office (214) 753-2200 www.txnd.uscourts.gov/directories/court.html

Hon. David L. Horan


Hon. Paul D. Stickney


Hon. Irma C. Ramirez Room 1567 -- Earle Cabell Federal Building (214) 753-2393

Hon. Renee H. Toliver


First Administrative Region

Frank Crowley Courts Building 133 N. Riverfront Blvd., 5th Floor

Dallas, Texas 75207 www.firstadmin.com/

Hon. Mary L. Murphy, Presiding Judge (214) 653-2943

http://www.txnb.uscourts.gov/judges-info

http://www.txnd.uscourts.gov/directories/court.html

http://www.firstadmin.com/

THE COURTS

Page 3

Fifth District Court of Appeals

George L. Allen Sr. Courts Building 600 Commerce Street, Suite 200, Dallas, Texas 75202

Phone (214) 712-3405 www.5thcoa.courts.state.tx.us/

Hon. Carolyn Wright, Chief Justice (214) 712-3400 Hon. David L. Bridges (214) 712-3412

Hon. Ada Brown (214) 712-3400

Hon. David Evans (214) 712-3400 Hon. Robert M. Fillmore (214) 712-3400

Hon. Molly Francis (214) 712-3411 Hon. Douglas S. Lang (214) 712-3402

Hon. Elizabeth Lang-Miers (214) 712-3403 Hon. David B. Lewis (214) 712-3400

Hon. James A. Moseley (214) 712-3413 Hon. Lana R. Myers (214) 712-3401

Hon. Michael J. O’Neill (214) 712-3406

Hon. David Schenck (214) 712-3400 Hon. Craig Stoddart (214) 712-3400

Hon. Bill Whitehill (214) 712-3400

Clerk of the Court (214) 712-3450 Business Administrator (214) 712-3434

Civil District Courts George L. Allen Sr. Courts Building

600 Commerce Street, Dallas, TX 75202 Phone (214) 653-7246

www.dallascounty.org/department/courts/

14th District Court George Allen Sr. Courts Bldg., 5th Floor

Hon. Eric V. Moyé (214) 653-6000

Chief Clerk (214) 653-7337

44th District Court George Allen Sr. Courts Bldg., 5th Floor Hon. Bonnie Lee Goldtstein (214) 653-6996

Chief Clerk (214) 653-7427

68th District Court George Allen Sr. Courts Bldg., 5th Floor Hon. Martin Hoffman (214) 653-6510

Chief Clerk (214) 653-7536

http://www.5thcoa.courts.state.tx.us/

http://www.dallascounty.org/department/courts/

THE COURTS

Page 4


Hon. Kenneth Molberg (214) 653-6661 Chief Clerk (214) 653-6603

101st District Court George Allen Sr. Courts Bldg., 6th Floor

Hon. Staci Williams (214) 653-6937 Chief Clerk (214) 653-7256


Hon. Tonya Parker (214) 653-6015

Chief Clerk (214) 653-7446

134th District Court George Allen Sr. Courts Bldg., 6th Floor Hon. Dale B. Tillery (214) 653-6995

Chief Clerk (214) 653-7446

160th District Court George Allen Sr. Courts Bldg., 6th Floor New Tower Hon. Jim Jordan (214) 653-7273

Chief Clerk (214) 653-7271

162nd District Court George Allen Sr. Courts Bldg., 7th Floor New Tower

Hon. Phyllis Lister Brown (214) 653-7348 Chief Clerk

(214) 653-7156 191st District Court George Allen Sr. Courts Bldg., 7th Floor New Tower

Hon. Gena Slaughter (214) 653-6609 Chief Clerk (214) 653-7117

192nd District Court George Allen Sr. Courts Bldg., 7th Floor New Tower Hon. Craig Smith (214) 653-7709

Chief Clerk (214) 653-7748

193rd District Court George Allen Sr. Courts Bldg., 8th Floor New Tower Hon. Carl Ginsberg (214) 653-6998

Chief Clerk (214) 653-7791

298th District Court George Allen Sr. Courts Bldg., 8th Floor New Tower

Hon. Emily G. Tobolowsky (214) 653-6781 Chief Clerk (214) 653-6779

Tax Court & Visiting Judge

Hon. M. Kent Sims, District Judge (214) 653-6061 Chief Clerk (214) 653-6012

Civil Court Associate Judges

Hon. Sheryl Day McFarlin (214) 653-6167

Hon. Monica McCoy Purdy (214) 653-6043

THE COURTS

Page 5

Criminal District Courts

Frank Crowley Courts Building 133 N. Riverfront Blvd., Dallas, TX 75207-4313

Phone (214) 653-5950 www.dallascounty.org/department/courts/

Criminal District Court No. 1 Frank Crowley Courts Bldg., 6th Floor Hon. Robert D. Burns, III (214) 653-5900

Court Coordinator (214) 653-5902

Criminal District Court 2 Frank Crowley Courts Bldg., 7th Floor

Hon. Don Adams (214) 653-5911 Court Coordinator (214) 653-5912


Hon. Gracie Lewis (214) 653-5920 Court Coordinator (214) 653-5922

Criminal District Court 4 Frank Crowley Courts Bldg., 6th Floor Hon. Dominique Collins (214) 653-5930


Criminal District Court 5 Frank Crowley Courts Bldg., 5th Floor Hon. Carter Thompson (214) 653-5940



Hon. Jeanine Howard (972) 739-3920 Court Coordinator (972) 739-3910


Hon. Elizabeth Frizell (972) 739-3915 Court Coordinator (972) 739-3905

194th District Court Frank Crowley Courts Bldg., 7th Floor

Hon. Ernest White (214) 653-5800


195th District Court Frank Crowley Courts Bldg., 7th Floor Hon. Fred Tinsley (214) 653-5810


203rd District Court Frank Crowley Courts Bldg., 7th Floor Hon. Teresa Hawthorne (214) 653-5820



THE COURTS

Page 6


Hon. Tammy Kemp (214) 653-5830 Court Coordinator (214) 653-5832


Hon. Jennifer Bennett (214) 653-5840 Court Coordinator (214) 653-5842

282nd District Court Frank Crowley Courts Bldg., 5th Floor

Hon. Amber Givens-Davis (214) 653-5850


283rd District Court Frank Crowley Courts Bldg., 6th Floor Hon. Rick Magnis (214) 653-5860


291st District Court Frank Crowley Courts Bldg., 7th Floor Hon. Stephanie Mitchell (214) 653-5870


292nd District Court Frank Crowley Courts Bldg., 6th Floor

Hon. Brandon Birmingham (214) 653-5880 Court Coordinator (214) 653-5882

363rd District Court Frank Crowley Courts Bldg., 5th Floor

Hon. Tracy Holmes (214) 653-5890 Court Coordinator (214) 653-5892

Family District Courts

George L. Allen Sr. Courts Building 600 Commerce Street, Dallas, Texas 75202

Phone (214) 653-7679 www.dallascounty.org/department/courts/

254th District Court George Allen Sr. Courts Bldg., 3rd Floor

Hon. Susan Rankin (214) 653-6136

Associate Judge, Donald Turner II (214) 653-6754 Court Administrator (214) 653-6741


Hon. Kim Cooks (214) 653-6159 Court Administrator (214) 653-6154


Hon. David Lopez (214) 653-6449

Court Administrator (214) 653-6410


THE COURTS

Page 7

301st District Court George Allen Sr. Courts Bldg., 3rd Floor

Hon. Mary Brown (214) 653-7407 Court Administrator (214) 653-7407

302nd District Court George Allen Sr. Courts Bldg., 4th Floor

Hon. Tena Callahan (214) 653-7236 Court Administrator

(214) 653-6189 303rd District Court George Allen Sr. Courts Bldg., 4th Floor

Hon. Dennise Garcia (214) 653-7611


330th District Court George Allen Sr. Courts Bldg., 3rd Floor Hon. Andrea Plumlee (214) 653-7207


IV-D Family Court No. 1 George Allen Sr. Courts Bldg., 3rd Floor Hon. George Collins (214) 653-6686

IV-D Family Court No. 2 George Allen Sr. Courts Bldg., 3rd Floor Hon. Sean Finn (214) 653-7438

IV-D Family Court No. 3 George Allen Sr. Courts Bldg., 3rd Floor

Hon. Aurora Madrigal (214) 653-7685

IV-D Family Court No. 4 George Allen Sr. Courts Bldg., 3rd Floor Hon. Sally Green (214) 653-6217

Juvenile District Courts

Henry Wade Juvenile Justice Center 2600 Lone Star Drive, Dallas, Texas 75212-6307

Juvenile District Clerk’s Office (214) 698-4900 www.dallascounty.org/department/courts/

304th District Court 3rd Floor

Hon. Andrea Martin (214) 698-4936 Clerk (214) 698-4330

305th District Court 3rd Floor

Hon. Cheryl Lee Shannon (214) 698-4300 Clerk (214) 698-4913


THE COURTS

Page 8

County Civil Courts

George L. Allen Sr. Courts Building 600 Commerce Street, Dallas, Texas 75202

(214) 653-7092 www.dallascounty.org/department/courts/

County Court at Law No. 1 5th Floor

Hon. D’Metria Benson (214) 653-7556


County Court at Law No. 2 5th Floor Hon. King Fifer (214) 653-7366


County Court at Law No. 3 5th Floor Hon. Sally Montgomery (214) 653-7595



Hon. Ken Tapscott (214) 653-7466 Court Coordinator (214) 653-7345


Hon. Mark Greenberg (214) 653-6441 Court Coordinator (214) 653-6503

County Criminal Courts

Frank Crowley Courts Building 133 N. Riverfront Blvd., Dallas, TX 75207

(214) 563-5740 www.dallascounty.org/department/courts/

County Criminal Court No.1 3rd Floor

Hon. Dan Patterson (214) 653-5600 Court Coordinator (214) 653-5605


Hon. Julia Hayes (214) 653-5610 Court Coordinator (214) 653-5615


Hon. Doug Skemp (214) 653-5620




THE COURTS

Page 9


Hon. Nancy C. Mulder (214) 653-5630 Court Coordinator (214) 653-5635


Hon. Lisa Green (214) 653-5640 Court Coordinator (214) 653-5645


Hon. Angela M. King (214) 653-5650


County Criminal Court No.7 4th Floor Hon. Elizabeth Crowder (214) 653-5660


County Criminal Court No.8 4th Floor Hon. Tina Yoo Clinton (214) 653-5670


County Criminal Court No.9 4th Floor

Hon. Peggy Hoffman (214) 653-5680 Court Coordinator (214) 653-5685

County Criminal Court No.10 4th Floor

Hon. Roberto Cañas, Jr. (214) 653-5690 Court Coordinator (214) 653-5695

County Criminal Court No.11 4th Floor Hon. Shequitta Kelly (214) 712-5068


County Court of Criminal Appeals

Frank Crowley Courts Building

133 N. Riverfront Blvd., Dallas, Texas 75207

(214) 653-5740 www.dallascounty.org

County Court of Criminal Appeals No. 1 3rd Floor

Hon. Kristin Wade (214) 653-5700 Court Coordinator (214) 653-5705

County Court of Criminal Appeals No. 2 3rd Floor

Hon. Jeff Rosenfield (214) 653-5710


http://www.dallascounty.org/

THE COURTS

Page 10

Probate Courts

Dallas County Records Building 509 Main Street, Dallas, Texas 75202

(214) 653-7241 www.dallascounty.org

Probate Court No. 1 2nd Floor Hon. Brenda Hull Thompson (214) 653-7236

Docket Coordinator (214) 653-7236

Probate Court 2 2nd Floor

Hon. Ingrid M. Warren (214) 653-7138 Docket Coordinator (214) 653-7138

Probate Court 3 2nd Floor

Hon. Margaret Jones-Johnson (214) 653-6166 Docket Coordinator (214) 653-6166

Other Important Numbers

Dallas County Judge Clay Jenkins (214) 653-7949

Dallas County Clerk John F. Warren (214) 653-7099

Dallas County District Clerk

Gary Fitzsimmons (214) 653-7149

Dallas County District Attorney’s Office Susan Hawk (214) 653-3600

Dallas County Law Library (Civil & Criminal) Mary Rankin (214) 653-7481

Dallas City Attorney’s Office (214) 670-3519

http://www.dallascounty.org/

TIPS TO UNDERSTANDING THE LAW

Page 11

Tips to Understanding the Law

The information in this book is to be used as an educational guide only, and should not be

interpreted as a legal consultation. Readers of these articles are advised to seek an attorney if a legal consultation is needed. Laws are subject to change, thus the accuracy of this

information cannot be guaranteed. Readers act on this information solely at their own risk. Neither the Dallas Bar Association, any of its affiliates, nor the authors shall have any

liability stemming from these articles

ACCESS TO THE COURTROOM

Page 12

Access to the Courtroom

The United States Supreme Court has held that the First Amendment guarantees the

public and the press the right to attend criminal trials. Richmond Newspapers v. Virginia,

448 U.S. 555, 575-80 (1980). In Texas state courts, the presumption of access to criminal trials is also protected by the Texas Code of Criminal Procedure, which states that

“proceedings and trials in all courts shall be public.” TEX. CODE CRIM. P. § 1.24. Although

this right is not absolute, it is accorded a high degree of protection. This protection requires that, before a court may close a criminal trial to the public, it must make specific

findings that (1) closure is essential to preserve higher values and (2) the restriction is narrowly tailored to serve that higher interest. See Press-Enterprise Co. v. Superior

Court, 478 U.S. 1, 13-15 (1986).

The most common interest that is balanced against the right of public access to the

courtroom is a criminal defendant’s Sixth Amendment right to a fair trial. Under strict

scrutiny, a court must evaluate whether alternatives, such as changing venue or sequestering the jury, could protect the defendant from any harms that may be

associated with trial publicity. Press-Enterprise, 478 U.S. at 14-15.

Access to Pretrial Criminal Proceedings

The Supreme Court has also determined that the press’s qualified right of access to the

courtroom applies to pretrial criminal proceedings. Press-Enterprise, 478 U.S. at 13-15. However, some pretrial proceedings present stronger arguments for limiting access

because, for example, certain evidentiary rules and other protections available at trials

may not apply before trial.

Accordingly, the right of access to some pretrial criminal proceedings is more limited in

some circumstances. For example, access to bail reduction hearings may be limited to persons actually present at the time the motion for bail is made. United States v. Chagra,

701 F.2d 354, 363-64 (5th Cir. 1983). There are also some criminal proceedings to which

there is no right of access. These proceedings include grand jury proceedings, TEX. CODE

CRIM. P. § 20.02; legitimate in camera hearings, Brandley v. State, 691 S.W.2d 699, 708

(Tex. Crim. App. 1985); and jury deliberations, TEX. CODE CRIM. P. § 36.22.

Access to Civil Proceedings

The Fifth Circuit – the federal appeals court that covers Texas – has ruled that First

Amendment guarantees of a qualified right to access may be implicated in civil proceedings as well. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). However, in the

civil context, the media may face motions for protective orders that curtail access in limited circumstances. For example, in rare situations, a court may close proceedings in

order to protect sensitive and valuable trade secrets. A separate rule of civil procedure,

Rule 76a, governs attempts to seal court records.


Page 13

Access to Texas Juvenile Proceedings

In Texas state courts, juvenile hearings are open to the public unless the judge finds good

cause that the public should be excluded. TEX. FAM. CODE ANN. § 54.08. However, if the

child is under 14 years of age, an opposite presumption applies, and the hearing will be closed unless the interests of the child or the public would be better served by opening

the hearing to the public.

Challenging Closure Orders

The United States Supreme Court held that a court must determine closure of the

courtroom on a case-by-case basis. Globe Newspapers Co. v. Superior Court, 457 U.S.

596, 609 (1982). The Court noted that for this analysis to be meaningful, a court must provide the public and press with notice and an opportunity to be heard.

Cameras in the Courtroom

The United States Supreme Court has rejected the argument that the presence of

cameras in a courtroom in a criminal trial necessarily deprives an accused of his or her

right to a fair trial or to due process. Chandler v. Florida, 449 U.S. 560, 575 (1982). However, the Court has also made clear that an accused’s right to a fair trial requires

safeguards to protect the criminal defendant’s constitutional rights from the risks posed

by cameras in the courtroom. Estes v. Texas, 381 U.S. 532 (1965).

Rules in Federal Courts

Although there is no constitutional ban that applies to cameras in the courtroom,

Congress has enacted such rules. The Federal Rules of Criminal Procedure specifically prohibit courtroom photography and broadcasting. FED. R. CRIM. P. 53. Likewise, the

federal courts in Dallas and Fort Worth have local rules that prohibit photographing, broadcasting, recording or televising a judicial proceeding in either civil or criminal cases.

See N.D. Tex. Local Rule 83.18; N.D. Tex. Local Criminal Rule 53.1.

Rules in State Courts

In Texas state civil court proceedings, television, radio, and photographic coverage may –

in the discretion of the presiding judge – be allowed if the consent of the parties and each

witness is obtained. TEX. R. CIV. P. 18c. However, media coverage cannot “unduly distract participants or impair the dignity of the proceedings.” Although there is no analogous rule

of procedure for state criminal proceedings, the same considerations generally govern a judge’s decision.

In addition, individual cities and counties may promulgate local rules regarding media

broadcasting or recording of civil proceedings. Dallas County has a set of Local Rules regarding broadcasting and recording of such hearings. Those rules are available on the


Page 14

Dallas County website and state that the underlying goal is to favor recording and

broadcasting, while at the same time maintaining the dignity, decorum and impartiality of the proceedings. The rules generally require written notice of a request to record or

broadcast a proceeding to be filed with the court and served on all parties within at least one day of the scheduled hearing. A party may request a hearing on objections to such

coverage, but any objections must demonstrate the specific harm that would be caused by any media coverage. The court has discretion to allow, deny, limit or terminate media

coverage in the interests of justice, but any court decision not to allow recording or broadcasting must contain specific findings that justify the decision. The recording or

broadcasting of jury selection, proceedings in chambers, jurors in the courtroom or in

deliberations, and conferences between trial participants is not allowed.

Texas also allows broadcasting of appellate proceedings, but requires certain steps to be

undertaken. TEX. R. APP. P. 14. Requests to cover arguments of a case must be filed five days prior to the proceeding and must be served on all parties. Requests to cover all

other proceedings must be filed two days prior to the proceeding. The judge may also

limit or prohibit coverage in order to protect the parties’ rights, ensure the dignity of the court and maintain the orderly conduct of the proceedings.

Reviewed by Sadé Lewis, Oklahoma City University School of Law, J.D. Candidate, 2016, Texas Legal Society, President. She can be reached at [email protected].

mailto:[email protected]

ALTERNATIVE DISPUTE RESOLUTION

Page 15

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) encompasses all methods of dispute resolution other

than litigation. To litigate means each side is giving up the opportunity to exercise control

over the outcome of their case by deferring decision-making/solution-generating power to

a judge or jury. ADR allows each party to retain that control and potentially come to a

mutually agreeable solution that addresses each party’s concerns. Nearly all courts

encourage ADR to more efficiently clear cases off dockets that can be settled without

having to complete the long, arduous, court-clogging process of adversarial litigation.

Chapter 154 of the Texas Civil Practice and Remedies Code imposes on all courts

the responsibility to carry out Texas’s policy of encouraging the peaceful resolution of

disputes and early settlement of pending litigation.

ADR can be ordered or requested prior to, or even during, litigation. Once the parties’

dispute is in litigation, courts have authority to appoint a third party neutral to conduct an

ADR procedure between the parties as long as they’ve met Chapter 154’s required

qualifications before they can be appointed by a court to conduct an alternative dispute

resolution procedure. More commonly, parties to a dispute mutually agree on which third

party neutral will conduct the chosen ADR procedure.

ADR encompasses all methods of dispute resolution other than litigation. Simple direct

settlement negotiations between parties (usually through their attorneys), mediation

(where an neutral third party facilitates negotiations between two parties), arbitration

(where a single person or panel, other than a court, makes a binding determination of

who wins a dispute), and the collaborative law process (see the sub-section below for

further details) are the most common forms of ADR. While mediation is more commonly

used than arbitration and collaborative law, arbitration has become a frequently used ADR

method, particularly in commercial disputes, and the collaborative law process has

increasingly gained the attention and following of legal practitioners. The full range of

ADR methods authorized by the Texas legislature is set out in Chapter 154.

Texas requires that all matters, including the conduct and demeanor of the disputing

parties and their counsel, observed during an ADR process remain confidential, never to

be disclosed, including to the court. This feature encourages parties and their counsel to

be fully engaged in trying to reach a fair settlement of their dispute during the alternative

dispute resolution process without fear of reprisal in court for admissions or suggested or

rejected solutions. Parties to a dispute may mutually agree on which third party should be

selected to conduct the alternative dispute resolution procedure.


Page 16

However, it is interesting to note that, as of March 1, 2013, new rules passed by the

Texas Supreme Court impose various limitations of the ability of Texas courts to refer

certain cases to alternative dispute resolution procedures.

Collaborative Law

Collaborative law is a dispute resolution process that takes place during structured face-

to-face negotiations between the parties and their lawyers, akin to a settlement

negotiation. The collaborative law process is conducted pursuant to a written Participation

Agreement, which is a contract in which the parties and their lawyers agree on guidelines

to be followed during the negotiations.

The lawyers in the collaborative process must agree in advance not to represent their

respective clients in court proceedings. In other words, if the parties are unable to settle

during the process, their collaborative lawyers must withdraw, and the parties must

proceed to litigation with new attorneys. This requirement results in motivating the

collaborative lawyers and the parties to do their utmost to resolve the dispute. In

addition, the collaborative lawyers are able to concentrate 100% of their skills on

settlement without being distracted by trial preparation and discovery deadlines.

Similarities between Mediation, Negotiation, and the Collaborative Law Process

To maximize chances of successfully resolving the dispute without further court

intervention, participation in mediation, negotiation, or the collaborative process calls for

a paradigm shift in the participants’ behavior and mental processes. While litigation

focuses on the “blame game” and the past bad acts of the parties, the focus of mediation,

negotiation, and the collaborative process should be on the interests and goals of the

parties and mutually agreeable solutions that will address each side’s concerns. There

should be no expectation of “winners” and “losers” in either of these processes. Mediation

and the collaborative process not only encourage the parties to actively participate in all

decision making relating to resolution of the issues in dispute, these processes require

that each party participate in all dispute resolution meetings. Binding decisions are never

made unless the parties are present, and all parties must personally consent to the

proposed terms of settlement.

Differences between Mediation and the Collaborative Law Process

In mediation, the mediator controls the room and facilitates the dispute resolution

dialogue between the parties, who are also typically accompanied by their lawyers. The

mediator uses his/her knowledge and discretion as to whether, how, and at which points

during the process to facilitate dialogue between the parties. However, in the collaborative

law process, neutral individuals (if any) invited into the process usually serve the purpose


Page 17

of providing expert opinions and explaining specialized information and are typically not

expected to facilitate the dispute resolution dialogue.

The mediator may choose to keep the parties together in the same room or, more

commonly, places them in separate rooms while the mediator going back-and-forth

between the rooms (shuttle-diplomacy). By contrast, during the collaborative law

negotiations, all sides to the dispute generally stay in the same room and directly

communicate with each other to develop a resolution to the dispute.

To assure the success of the mediation process, proper training for only the mediator is

critical. However, for a successful collaborative law process, all professionals (including

each side’s lawyers) participating in the process should be trained; if each professional

participant does not understand the collaborative law process, his/her contributions will

undermine (rather than enhance) the opportunities to succeed in settling the dispute.

Reviewed by Adam M. Swartz., of The Swartz Law Firm, PLLC. He can be reached at

[email protected]. Commentary expresses only the view of the author and does not necessarily

reflect the views or opinions of THE SWARTZ LAW FIRM. The information provided herein is not intended

to be legal advice.


APPELLATE LAW AND PRACTICE

Page 18

Appellate Law and Practice

While the Federal Constitution empowers the Congress (U.S. Constitution, article I, § 1),

and the Texas Constitution empowers the Legislature (Texas Constitution, article III, § 1), to enact laws, both governing documents empower the judiciary to interpret those laws

(U.S. Const. art. III, § 1, Tex. Const. art. V, § 1). And an important portion of our

jurisprudence is based on the written opinions of the judiciary. See Gelston v. Hoyt, 16 U.S. 246, 4 L. Ed. 381 (1818) and Smissen v. State, 71 Tex. 222, 9 S.W. 112 (1888) (our courts

expound the law). These written opinions are issued by appellate courts (the Texas and Federal courts of appeal and the Texas and United States Supreme Courts) in the course of

proceedings before them, whether those proceedings are appeals from judgments or interlocutory (i.e., interim) orders or are original proceedings initiated in the appellate

courts requesting intervention outside of the typical appeals process (ex., mandamus review of discovery rulings or habeas corpus proceedings).

Lifecycle of an Appeal:

The trial of a case is just one aspect of litigation; there are multiple phases that can affect

a party’s rights on appeal.

Pre-Trial & Trial

“Error preservation” – that is, making sure complaints about the trial court’s decisions are

clearly documented in the record of the trial – is vital to the appeal process, because generally only those errors (or, at least, alleged errors) objected to or otherwise brought to

the trial court's attention in a timely manner and ruled upon by the trial court may be

considered on appeal. For example, see Texas Rule of Appellate Procedure 33.1 (requiring a record of the objection and ruling to preserve error). In other words, the trial court must

be afforded the opportunity to "do the right thing," and litigants and their attorneys are not allowed to simply "lie behind the log" and raise an issue on appeal that was not presented

and preserved in the trial court. In certain circumstances in the Federal courts, the appellate courts may opt to review decisions that are clearly erroneous or that affect

substantive rights even if an objection was not properly raised. See, for example, Burks v. Firestone Tire & Rubber Co., 633 F.2d 1152 (5th Cir. 1981) and Federal Rule of Criminal

Procedure 51. The need to preserve error involves one of the most important documents

in a trial: the jury charge. This document, prepared by the lawyers but approved and submitted to the jury by the judge, provides the written questions, instructions, and

definitions used by the jury in rendering its verdict after the lawyers’ closing arguments; and errors must be stated on the record of the trial and ruled upon as a prerequisite to an

appeal. See, for example, Federal Rule of Civil Procedure 51 and Satterwhite v. Safeco Land Title of Tarrant, 853 S.W.2d 202 (Tex. App.—Fort Worth 1993).

Post-Verdict and Post-Judgment Proceedings

After the jury has answered the questions in the jury charge and rendered its verdict, the

actual trial concludes. But the proceedings in the trial court often continue, as the parties file various post-verdict and post-judgment motions, such as requests that the judge


Page 19

disregard all or part of the jury's verdict (ex., because of procedural and/or evidentiary

problems), grant a new trial, reduce excessive damages, or modify the judgment in some respect (e.g., application of damages caps, computation of pre-judgment or post-judgment

interest). These motions can also serve to preserve error for the appeal. See, for example, Texas Rule of Civil Procedure 324 (requiring a motion for new trial as a prerequisite to

complaining on appeal of jury misconduct, newly discovered evidence, or that a jury finding is against the overwhelming weight of the evidence).

Appeals in the Appellate Courts

When a party is going to appeal a trial court’s judgment, the first step is filing a “notice of appeal.” Once the notice of appeal is filed, the court reporter prepares the reporter's record

(the testimony and exhibits from the trial) and the court clerk (that is, either the county

clerk or the district clerk) prepares the clerk's record (the documents filed in the trial court throughout the litigation) for filing in the court of appeals. These two things together

comprise the appeal record. After the court of appeals receives and files the appeal record, the appellate attorneys research any legal issues to be presented on appeal and draft their

respective briefs (appellant being the party who filed the appeal, and appellee being the responding party), outlining the factual and procedural background of the case, the issues

to be presented, and the legal arguments and authorities supporting their positions.

Upon reviewing the briefs, the court of appeals has discretion to request that the appellate

attorneys present oral argument. Oral argument typically involves a panel of three justices

from the court of appeals, who hear each side’s legal arguments and question the appellate attorneys about any legal or factual matters in the case. Oral argument is very different

from a trial because there is no court reporter, no witnesses or evidence are admitted (because the parties are limited to what is in the appeal record), and each side usually is

limited to twenty or thirty minutes of argument with five to ten minutes for the appellant

to make a rebuttal argument. The court of appeals may affirm or modify the trial court’s judgment, reverse the judgment and return the case to the trial court for additional

proceedings, or render the judgment or action (such as dismissal) which the trial court should have reached. See, for example, Texas Rule of Appellate Procedure 43.2 (which lists

the various actions the court of appeals may take). Once the court of appeals issues its judgment, a party may seek to have the matter reconsidered by all 12 of the justices serving

on that court of appeals (called an “en banc” review); the en banc panel may or may not decide to reconsider the matter, may affirm or modify the original appellate judgment, or

may render a completely different judgment (i.e., one of the other options, for example, in

Texas Rule of Appellate Procedure 43.2).

Discretionary review by the Supreme Court (i.e., the Supreme Court of Texas or the U.S.

Supreme Court) also is possible following the court of appeals’ decision. Review of a case by the U.S. or Texas Supreme Court is called “discretionary” because, generally, the high

courts only rule on issues that significantly affect the jurisprudence (ex., statutory

interpretation or constitutional rights). Appellate attorneys first file a short petition for review (or petition for certiorari in the U.S. Supreme Court), and, if the court is interested

in the issue(s) presented, it will request full briefs on the merits. If the high court grants


Page 20

the petition for review, it may issue a per curiam opinion (an opinion from the court as a

whole) or it may hear oral argument and issue a full opinion on the merits authored by one of the Justices (in which one or more Justices may concur or even dissent).

Original Appellate Actions

Certain legal actions – such as a request for a writ of habeas corpus or a writ of mandamus

– may be initiated first in the court of appeals or the Supreme Court (as opposed to being

initiated in the trial court first). See Texas Rule of Appellate Procedure 52.1. These are generally actions requesting the court of appeals or Supreme Court to order another

government official to take or refrain from taking some action where an abuse of discretion or process is involved and there is no adequate remedy through a normal appeal. Will v.

United States, 389 U.S. 90, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967); Walker v. Packer, 827

S.W.2d 833 (Tex. 1992). For example, a mandamus action could be appropriate to require a trial court’s compliance with a statute. See In re Walker, 428 S.W.3d 212 (Tex. App.—

Houston [1st Dist.] 2014) (mandamus is an appropriate means to require a trial court to comply with the Uniform Child Custody Jurisdiction & Enforcement Act's jurisdictional

requirements). And mandamus is appropriate where complying with a trial court’s order would force a party to give up legally privileged information. In re Kellogg Brown & Root,

Inc., 756 F.3d 754 (D.C. Cir. 2014). A habeas corpus proceeding is appropriate where a person has been unlawfully confined or imprisoned. Harrington v. Richter, 562 U.S. 86, 131

S. Ct. 770, 178 L. Ed. 2d 624 (2011); In re Linan, 419 S.W.3d 694 (Tex. App.—Houston

[1st Dist.] 2013).

These proceedings are initiated by filing a petition in the appellate court. See Federal Rule

of Appellate Procedure 21, Texas Rule of Appellate Procedure 52.3. Similar to appealing a trial court’s order or judgment, a record is usually filed with the appellate court along with

the petition for relief. See Federal Rule of Appellate Procedure 21(a)(2)(C), Texas Rule of

Appellate Procedure 52.7. The appellate court may deny the petition without any response from the other parties or invite the other parties to file a response and then decide whether

to rule or require additional briefing materials. See Federal Rule of Appellate Procedure 21(b), Texas Rules of Appellate Procedure 52.4 and 52.8. After briefing, the appellate court

may invite the parties to make oral argument or it may rule without oral argument; the court may deny the request outright or grant it outright or even conditionally grant the

relief (i.e., issue the writ only if the official fails to adjust his or her conduct in accordance with the appellate court’s judgment). See Federal Rule of Appellate Procedure 21, Texas

Rule of Appellate Procedure 52.8.

Edited by Jim E. Bullock, CANTEY HANGER, LLP, Dallas, Texas. Commentary expresses only the view of the author and does not necessarily reflect the views or opinions of CANTEY HANGER, LLP. The information provided herein is not intended to be legal advice.

CONSTRUCTION LAW

Page 21

Construction Law

The construction industry is impacted by significant regulations and statutes from all levels

of government (federal, state, and local). Lawyers who come in contact with construction-industry issues may practice in surety, insurance, labor and employment law, personal

injury litigation, consumer law, real estate finance and transactions, environmental law,

and a host of other areas. Certain statutes may apply solely to residential construction activities, while others are limited to commercial construction activities.

Some commonly encountered federal statutes impacting the construction industry include:

1. The Miller Act, which provides when and how a general contractor must provide a bond

to guaranty payment to subcontractors and suppliers on federal government projects;

2. The Occupational Safety and Health Act, which creates a host of legal issues relative to

work-place safety and on-the-job injuries;

3. The Clean Water Act, which impacts the manner in which contractors develop property that may relate to the waters of the United States;

4. The Americans with Disabilities Act, which impacts the design and construction of

structures accessible to the public: and

5. The Davis-Bacon Act, which requires payment of prevailing wages and benefits to

employees of contractors engaged in federal government construction projects.

Some commonly encountered Texas statutes that impact construction include:

1. Texas Property Code:

Chapter 5 dealing with the sale of real estate and disclosures relating to the property;

Chapter 27 governing the construction and repair of residences and claims against

homebuilders and remodelers;

Chapter 28 governing the payment of contractors and subcontractors; and

Chapter 53, establishing rules on the creation and enforcement of mechanic's liens on residential and commercial properties;

2. Texas Government Code, Chapters 2251, 2252, 2253 and 2267, which regulate the

award of construction projects for governmental subdivisions of the state of Texas and the mechanisms to require bonds to guaranty payments to subcontractors and suppliers; and

CONSTRUCTION LAW

Page 22

3. Texas Civil Practice & Remedies Code, Chapter 150, which requires a Certificate of Merit affidavit issued by a licensed design professional to be filed with a plaintiff’s petition in cases

involving alleged design professional negligence.

In addition to these statutes, judicial decisions over the past century have expanded on the

duties and obligations of owners, contractors, subcontractors, and others involved in

commercial and residential construction. Rights and obligations exist through contractual terms, court-created implied duties, or common-law doctrines.

CORPORATIONS AND GOVERNANCE

Page 23

Corporations and Governance

There are many types of business organizations, including corporations, partnerships and

limited liability companies. For public companies, the corporation structure is most

common.

Corporations may be classified according to their purpose (for-profit or non-profit,

educational, etc.). They may also be classified as foreign or domestic or public or private.

Private corporations with few stockholders which often exert direct control over the business

may be referred to as “close” corporations. Classifications may overlap or vary depending

upon state statutes.

All corporations are create or formed filing of Articles of Incorporation with the Secretary of

State. There are mandatory and optional provisions for the Articles of Incorporation which

may vary by state. In addition to the Articles of Incorporation, corporations are governed

by their bylaws and official actions or resolutions.

A corporation may be formed for the general purpose of engaging in any lawful business or

may be formed for a specific, limited purpose as set forth in the Articles of Incorporation.

The owners of a corporation are known as shareholders, and their ownership interest is

represented by a quantity of shares of stock. Except in close corporations, shareholders

usually do not have any direct involvement with the management of the corporation’s

business, at least not in their capacity as shareholder. The shareholders elect members of

a Board of Directors to oversee and manage the corporation’s business activities

consistently with the corporation’s by-laws. The board of directors may appoint corporate

officers, and those officers manage and are responsible for the day-to-day operations of

the business either directly or through employees, contractors and agents who act on behalf

of the corporation.

Officers, Directors and Shareholders have different roles. Shareholders are owners, elect

directors and approve of a small number of major actions and decisions. Directors establish

the strategic direction and policies of the corporation and are charged by the shareholders

with operating the business in a manner that maximizing their ownership value. Officers

are usually direct actors in the business with responsibility for managing employees, agents

and assets in the day-to-day execution of the strategic direction set by the Board of

Directors.

Unless limited by the articles of incorporation or by statutes, corporations have the same

rights and duties as individuals.


Page 24

Securities Law Generally

Federal securities laws are designed to protect investors and shareholders and deter abuses

within the capital markets. There are two primary federal statutes that make up the

Securities Law – The Securities Act of 1933 and the Securities Exchange Act of 1934. In

additionally, there are state regulations that may apply and operate concurrently with

federal law. The document used to market investments to potential investors, called the

prospectus, is part of the registration statement.

The Securities Act of 1933 addresses the initial offer and sales of securities. The goal of the

Securities Act of 1933 is to require issuers of stock or other securities to provide disclosures

sufficient for investors to make decisions about investments in the securities. Unless an

exemption applies, securities offered or sold in the United States must be registered.

The Securities Exchange Act of 1934 addresses the post-issuance or post-Initial public

offering of securities, including the trading, purchase, and sale of securities, and established

the Securities and Exchange Commission (SEC), which enforces United States federal

securities laws. The ’34 Act applies to companies listed on a national securities exchange

and to most public companies, but can apply to private corporations in some circumstances.

It requires the companies to make regular public filings of company information with the

SEC and regulates insider trading, which is illegal trading of securities based on non-public

information.

On July 30, 2002, the Sarbanes-Oxley Act of 2002 became law. Sarbanes-Oxley amended

various provisions of the Securities and Exchange Act of 1934 in an effort to protect

investors by improving corporate disclosures and reporting. The Sarbanes-Oxley Act

provides for:

stiffer penalties and revised remedies for some violations

enhanced financial disclosures

the reduction of mandatory disclosure periods for some insider trading transactions,

and

the protection of whistleblowers of publicly traded companies.

Sarbanes-Oxley also creates a Public Company Accounting Oversight Board, which

addresses audits of public companies in an effort to foster more transparency for public

shareholders.

In 2010, the Dodd-Frank Act was enacted to further amend the Securities Exchange Act of

1934. The Dodd-Frank Act relates to the disclosure and reporting requirements for asset-


Page 25

backed securities. It gives shareholders a non-binding vote regarding the compensation of

executives and golden parachute clauses, among other things.

The Dodd-Frank Wall Street Reform and Consumer Protection Act addresses executive

compensation and corporate governance. It mandates independence requirements for

compensation committee members and compensation consultants. It also gives

compensation committees of Boards of Directors the authority to hire independent counsel

and other professionals at the expense of the corporation.

The Private Securities Litigation Reform Act (PSLRA) addresses securities litigation by

private parties. The PLSRA addresses class action lawsuits, safe harbor provisions for

forward-looking statements, and responsibilities for accountants providing auditing and

certification as part of financial statements.

Written by Jeffrey M. Harvey and Corey Weinstein, Klemchuk LLP. Mr. Harvey can be reached at

[email protected].


DEFAMATION: LIBEL AND SLANDER

Page 26

Defamation: Libel and Slander

Defamation is broadly defined as the invasion of a person’s interest in their reputation and

good name. Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex.2013). More specifically,

defamation is a false statement of fact, told, published, or re-published about an identifiable

living person, which harms that person’s reputation in the community. Libel is a defamatory

statement expressed in written form; slander is generally spoken. Although media

broadcasts are spoken rather than printed, they are considered to fall under libel. Dolcefino

v. Randolph, 19 S.W.3d 906 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

To prevail on a defamation claim generally, a plaintiff must show the following:

(i) that the defendant published a statement of fact (ii) of and concerning the plaintiff,

(iii) the statement was defamatory, (iv) the statement was false, (v) the statement

resulted in injury to the plaintiff (unless injury is presumed). A.H. Belo Corp. v. Rayzor,

644 S.W.2d 71, 79-83 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.). Note: the elements

of a defamation action can change depending on the status of the plaintiff, the status of the

defendant, the type of speech involved, and the type of defamation pleaded.

Since June 14, 2013, a plaintiff is required to serve the defendant with a request for

mitigation to be eligible to recover actual and punitive damages. The deadline to serve the

request for actual damages is before limitations expire; the deadline for exemplary

damages is within 90 days of learning of the defamation.

Even if all of these elements are met, a journalist may still be protected by certain privileges

and additional defenses. It is helpful to keep the following principles in mind:

1. Who is a media defendant?

The term “media defendant” refers to members of both print and broadcast media.

Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003). It includes

electronic/online media. A defendant qualifies if their primary business is reporting

the news, and the defendant is acting in the capacity of a journalist or news reporter

when publishing the information in question. Service Empls. Int’l Un. V. Professional

Janitorial Serv., 415 S.W.3d 387, 398 (Tex.App.—Houston [1st Dist.] 2013, pet. Filed

11-1-13).

Whether an online publisher of information qualifies as a media defendant depends

on various factors, including: (i) the nature of the publication, (ii) the editorial

process, (iii) the volume of dissemination, and (iv) the publisher’s professional

relationship to and compensation for the publication. For example, in one recent

case, an online publisher (blogger) who had journalistic experience, a substantial


Page 27

reader following, and who reported on issues of inherent public concern was

considered to be a media defendant. Kaufman v. Islamic Society, 291 S.W.3d 130

(Tex. App.—Fort Worth 2009, pet. denied).

2. The Court focuses on the article as a whole.

The subject’s opinion of an article or story is irrelevant for the purposes of

establishing liability. Farias v. Bexar County Bd. of Trustees for Mental Health and

Mental Retardation Servs., 925 F.2d 866, 878 (5th Cir. 1991). The test is how a

reasonable person or the general public would interpret the language, not how the

story’s subject interpreted it. Schauer v. Memorial Care Syst., 856 S.W.2d 437, 448

(Tex. App.—Houston [1st Dist.] 1993, no writ), partially overruled on other ground;

Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 423 (TEX. 2000). Words must

be given their ordinary meaning” as read and construed by persons of ordinary

intelligence.” Taylor v. Houston Chronicle Publ’g Co., 473 S.W.2d 550, 553-54 (Tex.

Civ. App.—Houston [1st Dist.] 1971, writ ref’d n.r.e.).

The standard for what constitutes defamation is high. Courts have held that “[a]

statement may be false, abusive, unpleasant, and objectionable to the plaintiff

without being defamatory.” Rawlins v. McKee, 327 S.W.2d 633, 635 (TEX. CIV. APP.—

TEXARKANA 1959, writ ref’d n.r.e.).

The court must consider the communication as a whole rather than examining

“separate sentences or portions.” Musser v. Smith Protective Serv., Inc., 723 S.W.2d

653, 655 (TEX. 1987). Statements may not be made defamatory by taking them

out of context. Id. Rather, the entire statement must be viewed in its context. City

of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005).

3. Truth and Falsity.

A basic element of a defamation claim is that the statement at issue in the lawsuit

must be false. Rayzor, 644 S.W.2d at 79-80; Bentley v. Bunton, 94 S.W.3d 561

(Tex. 2002). In other words, a plaintiff suing for defamation must prove the falsity

of the statement. Id.; Connick v. Myers, 461 U.S. 138 (1983). Even where the

statement relates only to private matters, truth is an absolute defense to defamation

by Texas statute. Tex. Civ. Prac. & Rem. Code § 73.005.

Under certain circumstances, even if individual statements considered in isolation

are literally true or non-defamatory, a publication can convey a false and defamatory

meaning by omitting or juxtaposing facts. Turner v. KTRK Television, Inc., 38

S.W.3d 103, 114–15 (TEX. 2000).

Pure opinions are not grounds for defamation because they cannot be proven true

or false. Howell v. Hecht, 821 S.W. 2d 627, 631 (Tex. App.—Dallas 1991, writ


Page 28

denied). The United States Supreme Court has made clear that opinions that do not

imply false facts are protected. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

An opinion, however, can be actionable in defamation if it expressly or implicitly

asserts facts that can be objectively verified. Id.; Bentley v. Bunton, 94 S.W.3d 561

at 580 (Tex. 2002).

Texas courts have found editorial statements based on stated facts to be non-

libelous opinion. El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 800 (Tex. App.—El

Paso 1986, writ ref'd n.r.e.) (finding references to an opponent as a quack, hoke

artist, imported fear-monger and someone who expresses incomprehensible mumbo

jumbo were protected as opinion).

If an opinion implies false and defamatory facts, a plaintiff may succeed in claiming

defamation. Shearson, Lehman, Hutton, Inc. v. Tucker, 806 S.W.2d 914, 920 (Tex.

App.—Corpus Christi 1991, writ dism’d w.o.j.).

Statements considered epithets or rhetorical hyperbole aren’t actionable because

they are not objectively verifiable. American Broad. Cos. v. Gill, 6 S.W.3d 19 (Tex.

App.—San Antonio 1999, pet. denied).

4. Public and Private Persons

When a private figure sues for defamation, the plaintiff must show that the

publication of the statement was negligent, i.e., that it violated a duty of reasonable

care. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); KBMT Operating Co.,

LLC v. Toledo, 434 S.W.3d 276 (Tex. App.—Beaumont 2014).

Where a plaintiff is classified as a public figure, the standard of fault is that of

actual malice, a much higher standard. KBMT Operating Co., LLC v. Toledo, 434

S.W.3d 276 (Tex. App.—Beaumont 2014); see New York Times Co. v. Sullivan, 376

U.S. 254, 283 (1964).

o “Public figures” fall into three (3) general categories: general, limited

purpose, and involuntary.

A person who is a public figure for a general purpose is a person who is so well-known as to be a household name (Madonna, Oprah

Winfrey). A limited purpose public figure is someone plays more than a trivial

or tangential role in a public controversy (and is suing on a statement relating to that person’s role in the public controversy).

An involuntary public figure is one who becomes a public figure through no purposeful action of his own. Wells v. Liddy, 186 F.3d 505

(4th Cir. 1999).

A plaintiff who is a public figure or a public official must show “actual malice” in

order to recover on a defamation claim. “Actual malice” means that the defendant


Page 29

made the statements knowing that they were false or with “reckless disregard” as

to their falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). “Reckless

disregard” is not negligence or even gross negligence. It is “a high degree of

awareness of probable falsity” and requires the plaintiff to prove that the defendant

“in fact entertained serious doubts as to the truth of the publication.” Carr v.

Brasher, 776 S.W.2d 567, 571 (Tex. 1989).

In addition, a defamatory statement must refer to an identifiable plaintiff and not

merely to members of a class or group of persons. For example, statements about

dangerous practices in the beef industry were not actionable because they didn’t

single out a particular plaintiff. Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858

(N.D. Tex. 1998).

5. ”Of and Concerning”

The plaintiff must show that the challenged statement was “of and concerning” the

plaintiff. See Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960).

Although the statements at issue must refer to the plaintiff, the actual naming of

the plaintiff is not necessary as long as those who knew and were acquainted with

the plaintiff understood from reading the publication that it referred to the plaintiff.

Newspapers, Inc., 339 S.W.2d at 894; Diaz v. Rankin, 777 S.W.2d 496 (Tex. App.—

Corpus Christi 1989, no writ) (holding that broadcast accusing “owner” and

“operator” of specific golf course was sufficient for libel action).

A person can be defamed by implication when a publication conveys a false and

defamatory impression by omitting material facts or by juxtaposing facts. Scripps

Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829 (Tex. App.—Corpus Christi 2003,

pet. denied).

6. Damages

In a defamation lawsuit, the plaintiff can recover actual damages, special damages

(sometimes called consequential damages, like loss of employment or loss of

earning capacity), and exemplary damages (aka punitive damages) if a showing of

actual malice is made. Generally, in a defamation action a plaintiff cannot recover

attorney fees or get injunctive relief to prevent defamatory speech. Davenport v.

Garcia, 834 S.W.2d 4 (Tex. 1992).

7. Defenses

Truth is always a defense to a defamation action.

Consent (where a party consents to or invites the publication of a statement) also

provides an absolute privilege for the publisher of a statement even if it is


Page 30

defamatory. Saucedo v. Rheem Mfg., 974 S.W.2d 117 (Tex. App.—San Antonio

1998, pet. denied).

In addition to the statutory qualified privilege enjoyed by print and broadcast

media, another defense is that the plaintiff is essentially libel-proof—that he or she

has no reputation to lose. For example, in one case a plaintiff with an extensive

criminal record was libel-proof and couldn’t hold a newspaper liable for misstating

new criminal charges. Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512 (Tex.

App.—Tyler 1987, writ dism’d).

Statements that provide fair comment on matters of public interest, report on

official proceedings, or impartially report on allegations made by third parties on

issues of public interest also receive protection under Texas law.

8. Statute of Limitation.

The statute of limitations for defamation in Texas is one (1) year. See Tex. Civ. Prac.

Code § 16.002(a). This means that if a defamation claim is not brought within a

year of initial publication it is barred.

In addition, only one (1) claim may arise for each publication. For example, a

plaintiff allegedly libeled in a book has one defamation claim based on the publication

of that book, regardless of how many copies were sold. Recently the 5th Circuit

affirmed that this rule, known as the “single publication rule,” applies to internet

publication as well. A defamation suit applying Texas law must be brought within

one year of the first time the content is published on the internet. See Nationwide

Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007) (rejecting

Nationwide’s contention that when content is published on the internet a new

publication occurs each time the story is accessed).

Reviewed by Adam M. Swartz., of The Swartz Law Firm, PLLC. He can be reached at

[email protected]. Commentary expresses only the view of the author and does not

necessarily reflect the views or opinions of THE SWARTZ LAW FIRM. The information provided

herein is not intended to be legal advice.


EMINENT DOMAIN

Page 31

Eminent Domain

Both the U.S. Constitution and the Texas Constitution permit the government to condemn

property for public use through the power of eminent domain. U.S. Const. amend. V; Tex. Const. art. 1, § 17. The Texas Constitution grants the right of eminent domain to the

legislature, and the legislature may delegate its power to non-governmental entities so long as the exercise of the power is for a public use. Mercier v. MidTexas Pipeline Co., 28 S.W.3d

712, 716–17 (Tex. App.—Corpus Christi 2000, no pet.) overruled on other grounds by Hubanak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004). Public use in

Texas does not include a taking of property “for transfer to a private entity for the primary

purpose of economic development or enhancement of tax revenues.” Tex. Const. art. I, §17(b). It is unconstitutional, however, for an entity with the power of eminent domain to

condemn property without providing due process and just or adequate compensation to the person whose property is taken. U.S. Const. amend. V; Tex. Const. art. 1, § 17. In a

recently passed statue, all private entities must register with the comptroller with a declaration of the source of their power, the limits on that power, and whether the power

was used in the preceding year. Tex. Gov’t Code §2206.101.

Takings of property may be direct or indirect. Examples of a direct taking include situations

where the government acquires private property to build a road or a school or where a

utility company builds an electrical transmission line. An indirect taking, on the other hand, involves government activity that impairs access to or use of private property, such as

constructing a street barricade or engaging in construction activity that creates flooding on private property.

Where property is directly taken for a public use, there is a statutory procedure in Texas to

formally affect the taking. See Tex. Prop. Code Ann. §§ 21.001-.065 (West 2004). The condemning authority must file a lawsuit in the appropriate court and have a hearing as to

the value of the property before three appointed property owners, referred to as a “special commissioners,” in the county where the property is located. The purpose of the hearing is

to determine what the condemning authority should have to pay for the property, not to

determine whether the property can be taken. When the special commissioners have come to a decision on market value, this decision can be appealed through the courts. However,

the government can immediately take possession of the property by paying the amount of damages and costs awarded by the special commissioners to the property owner or

depositing that sum with the court. Id. § 21.021.

Indirect takings are often referred to as “inverse condemnation.” Unlike direct

condemnation cases, inverse condemnation cases are typically brought by a property owner

who claims that an entity has already taken their property without providing just compensation. In an inverse condemnation case, the alleged taking may come in any

number of different forms:

EMINENT DOMAIN

Page 32

(1) Physically invading or damaging property. Tarrant Reg’l Water Dist. v. Gragg, 151

S.W.3d 546 (Tex. 2004) (flooding caused by construction of reservoir and dam); Tenngasco Gas Gathering Co. v. Fisher, 653 S.W.2d 469 (Tex. App. — Corpus Christi 1983, writ ref’d

n.r.e.) (pipeline crossing property of private landowner);

(2) Interfering with access to property. State of Texas v. Whataburger, Inc., 60 S.W.3d 256

(Tex. App. — Houston [14th Dist.] 2001, no pet.) (highway expansion requiring re-building

of a restaurant in a different location or tract); Lethu Inc. v. City of Houston, 23 S.W.3d 482 (Tex. App. — Houston [1st Dist.] 2000, pet. denied) (construction of a street

barricade);

(3) Materially and substantially impairing use and enjoyment of property, resulting in loss

of market value. City of Austin v. Travis County Landfill Co., 73 S.W.3d 234 (Tex. 2002)

(increased over-flights that make surface property no longer useable for its intended purpose); Allen v. City of Texas City, 775 S.W.2d 863 (Tex. App. — Houston [1st Dist.]

1989, writ denied) (susceptibility to flooding due to government construction). But see Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996) (stating that the constitution does not

“require compensation for every decrease in market value attributed to a government activity.”);

(4) Enforcing certain zoning restrictions. Lucas v. S. Carolina Coastal Counsel, 505 U.S.

1003 (1992) (refusal to permit property owner to develop a beach front lot in a residential subdivision); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)

(regulation requiring landlord to permit cable television companies to install cable facilities on its property); and

(5) Conditioning development approval on the developer providing certain public benefits.

Dolan v. City of Tigard, 512 U.S. 374 (1994) (dedication of real property as a condition to development approval); Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d

620 (Tex. 2004) (requiring developer to repave adjacent street as condition to development approval).

Some of the more interesting cases on inverse condemnation deal with regulatory takings

and development exactions.

A regulatory taking occurs when the government exercises its zoning or approval powers

to restrict the use of private property improperly. Of course, the government has the right

to pass and enforce rules and regulations concerning property use. To constitute a taking, the government action generally must deny all economically beneficial or productive use of

the property or must not substantially advance a legitimate government interest. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004); Mayhew v. Town

of Sunnyvale, 964 S.W.2d 922 (Tex. 1998). The courts may also look at the government action to determine whether it represents a change in longstanding rules governing the

property and whether it is directed primarily to the individual property owner or the public as a whole. See Sheffield Dev. Co., 140 S.W.2d at 678 (discussing city-wide moratorium on

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development); Mayhew, 964 S.W.2d at 937 (discussing issue of “distinct investment-backed

expectations” of property owners based on longstanding use).

Development exactions may be another form of compensable taking. These occur when the

government conditions approval of a proposed development upon the developer providing some benefit to the government. It is appropriate, of course, for the government to require

payment or other benefits to offset impacts created by the development. The government’s

action constitutes an impermissible taking, however, when (1) there is not an “essential nexus” between the government action and a “legitimate state interest” or (2) there is no

“rough proportionality” between the government’s action and the nature and extent of the public impact from the proposed land use. Dolan, 512 U.S. at 374; Town of Flower Mound,

135 S.W.3d at 620.

In advance of the exercise of the power of eminent domain, the parties attempt to negotiate

an agreed upon price for the property being taken. In 2011, the Texas legislature adopted

two different methods under which those negotiations are to be conducted. Either the authority must provide with its offer all appraisals of the land obtained within the last ten

years relating to the determination of the offer, Tex. Prop. Code §21.0111, or the authority must, among other things, obtain a certified appraisal prior to making a final offer that

equals or exceeds that appraisal. Tex. Prop. Code §21.0113. The land owner is also required to share any appraisals with the condemning authority.

Reviewed by Thomas R. Jackson, a partner at Jones Day. He can be reached at [email protected].


ENVIRONMENTAL LAW

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Environmental Law

Scope

“Environmental” and “natural resources” law are distinct, but related subjects. In general, environmental law deals with protection of human health and environmental quality through

pollution prevention, control, and cleanup, while natural resources law concerns the

management and use of our land, air, water, and wildlife as resources. Environmental law issues come up in a variety of situations including litigation, property transactions, lobbying,

policy development, and advising clients as to how to comply with a vast and complicated body of law. The environment is regulated at both the state and federal level. In Texas, the

Texas Commission for Environmental Quality oversees the state environmental laws. The Environmental Protection Agency handles those duties at the federal level.

Major Federal Environmental Laws

National Environmental Policy Act (NEPA), 42 U.S.C. §4321 et seq. Bedrock law declaring policy and requiring detailed environmental review of major federal actions.

Clean Air Act, 42 U.S.C. §7401 et seq. Complex, overlapping: Administered through federal

and approved state clean air implementation plans, permits, engine standards, acid rain, ozone layer protection, greenhouse gas, more.

Clean Water Act (CWA) 33 U.S.C. §1251 et seq. Administered through federal and approved

programs, focuses on protecting water quality. Establishes a permit system for “point sources” discharging to regulated waters; water quality standards for bodies of water, and

protection of wetland resources.

Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §11001 et seq.

Requirements for federal, state and local government emergency planning for releases of

hazardous and toxic chemicals; “Community Right-to-Know" reporting by industry to increase public knowledge and access to information on chemicals at individual facilities,

their uses, and releases into the environment.

Oil Pollution Act, 33 U.S.C. §2701 et seq. Prevention of and regulatory response to

catastrophic oil spills. Establishes a trust fund to clean up spills when the responsible party

cannot do so. Requires large release response planning by regulated oil storage facilities and vessels, and development of Area Contingency Plans for regional-scale oil spill

responses.

Safe Drinking Water Act, 42 U.S.C. §300f et seq. Protection of drinking water quality and

resources, establishment of health-related primary standards and nuisance-related

secondary standards, regulation of underground injection of fluids.

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Toxic Substances Control Act (TSCA) 15 U.S.C. §2601 et seq. Tracking, screening, and

potentially banning chemicals such as PCBs, radon, asbestos and lead-based paint. Certain substances are generally excluded from the statute, such as food, drugs, cosmetics and

pesticides.

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq. Federal

control of pesticide distribution, registration, labeling, sale, and use.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42

U.S.C. §9601 et seq. Provides for the cleanup of abandoned sites contaminated by

hazardous substances (other than petroleum) and establishes a framework of liability among responsible parties for cleanup costs. Cleanups are conducted and funded wherever

possible by responsible parties either under a regulatory order or voluntarily, or by the

Environmental Protection Agency (EPA) using the federal “Superfund”. Related concept: “brownfields”: providing incentives for redevelopment of industrial/commercial property

affected by contamination.

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6901 et seq. Administered

by federal and approved state programs, focuses on “cradle to grave” hazardous waste

management: generation, storage, transportation, treatment, and disposal; cleanup and corrective action for releases from permitted facilities; non-hazardous solid waste disposal

facility requirements; comprehensive regulation of underground petroleum storage tanks.

For Additional Information

http://www.epa.gov/epahome/laws.htm

http://www.law.cornell.edu/topics/environmental.html

http://www.tceq.state.tx.us/

The EPA has published detailed regulations governing the implementation of the federal

laws, which commonly are implemented through approved state programs. Many tribal and

municipal governments also have environmental laws and regulations.

Major federal natural resource laws: NEPA, Endangered Species Act, Magnuson-Stevens

Fishery Conservation and Management Act, General Mining Law of 1872, Wilderness Act,

Wild and Scenic Rivers Act, Coastal Zone Management Act, Marine Mammal Protection Act, Federal Land Policy and Management Act.

Role in the Legal System

These laws have been integral to the development of modern administrative law (law dealing with the actions of government agencies). Also, environmental decisions commonly

involve constitutional questions including the proper role of the federal government and

when government action constitutes a “taking” of private property.

http://www.epa.gov/epahome/laws.htm

http://www.law.cornell.edu/topics/environmental.html

http://www.tceq.state.tx.us/

ENVIRONMENTAL LAW

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History

Modern environmental law began in 1970 with NEPA, the CAA, and the creation of the

federal EPA. Previously, some environmental matters (like factory pollution affecting

neighboring properties) were addressed under state tort law.

Natural resources law is older, featuring doctrines developed in the 19th and early 20th

centuries concerning mining, water rights, timber, and wildlife. Likewise, the natural

resource conservation movement began in the late 19th century, well before pollution became a major concern in the 1960s.

Since the 1970s, environmental law has continued to increase in scope and complexity.

Most of our major environmental laws were passed from 1970-1990; since then U.S. legal development has come through new federal regulations, through court actions, and at the

state level. During this period, American environmental laws have been a model for much of the rest of the world, and, notwithstanding much controversy, have clearly led to some

major improvements in the environment.

Enforcement

Government is the primary enforcer of these laws. Violators may face civil and even criminal

penalties (e.g., officers of a company can go to jail for a company's violation of

environmental laws). Many statutes also provide for direct enforcement by private citizen suits.



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Family Law

Family law refers to the area of law that deals with the legal relationships between family

members. Dallas County has specialized courts that exclusively handle family law matters at the George Allen Sr. Courts Building, 600 Commerce Street, Dallas, Texas 75202. The

Family Court Services department assists the family courts with child custody issues, often through the use of social studies.

Divorce is the most common family law issue. A divorce divides the property between two

spouses and concludes a marriage. The Final Decree of Divorce is the court order that formally ends a marriage when it is signed by the judge of the court. Most divorces end by

an agreement between the parties however, the work it takes to come to that agreement varies widely. In Texas, the minimum length of time before a divorce can be granted is 60

days from the date the Original Petition for Divorce is filed with the court. Divorces can also take years to resolve. A judge decides most divorce issues, but Texas is one of only a

few states that allow a jury to decide some issues. Less than one percent of all divorce

cases are resolved by a jury trial.

Texas is a community property and no-fault jurisdiction. Community property is

property that is equally owned by the spouses and will be divided by the courts using a “just and right” standard (which is not necessarily 50/50 in Texas). In general, all income

that either party earns during the marriage is considered community property, regardless

of the source of the earnings. In general, items owned by the individual spouse prior to the marriage, gifts, and inheritances received by the individual spouse is that spouse’s

separate property; but, the rules for dividing community property versus separate property are extremely complex and there are many exceptions that affect the final

property distribution.

“No fault” means that neither party has to prove that the other party is at fault and the

court can grant the divorce for the reason of “insupportability”. Child custody (child

possession) is always a part of every divorce case if the parties have minor children or disabled children. Child custody suits also arise outside the context of a divorce, and those

are called “Suits Affecting the Parent-Child Relationship” a.k.a. “SAPCR”. The courts use the “best interest of the child” standard to determine (a) when each parent will have

possession of the children, and (b) the rights, duties and responsibilities that each parent has for the children. The most common child possession orders are the Texas Standard

Possession Order or the Extended Standard Possession Order. Parental rights can also be

completely terminated.

Child support amounts in Texas are determined based on certain charted percentage

amounts based on the number of children that are part of the SAPCR, the number of other children that the parents have who are not part of the SAPCR (such as from other

relationships), and the income of the paying parent. Generally only the paying parent’s

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income is considered to determine the child support amount, but as with almost every area

of family law, there are complicated exceptions.

The Office of the Attorney General (OAG) provides some assistance regarding periodic

child support amount reviews and child support collection. In order to track the payment history, parents are generally required to pay their child support to the OAG who then

distributes the amount to the other parent.

Enforcement of family court orders is available civilly or in some instances via contempt

that can result in jail time for a person who violates a family court order. Interstate issues

arise when parents and children reside in different states or move from state-to-state. Other states have different rules and many family issues are determined by state law, not

federal law. Child support enforcement has been strengthened between states in recent

years via the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that applies when family law issues cross state lines. The family law courts can deal with

emergency family law issues at virtually any time. Protective Orders and Restraining Orders are the most common urgent issues. All cases begin with the filing of an Original

Petition (a document requesting action from the court). Many cases begin with a “Temporary Order Hearing” when the judge determines what “Temporary Orders” the

court requires during the case until the case ends with final orders. Temporary orders usually address child custody, child support, which spouse lives in the marital residence,

and who pays which bills while the divorce is pending. In Dallas County, the moment a

family law case is filed, the parties must follow the automatic “Standing Orders” to protect the rights of the parties, their property, and their children. There is a popularly suspected

bias against father’s rights, but under Texas law, the law does not favor one parent over the other due to gender.

Same-sex marriage rights is the most evolving issue in Texas law. The Supreme Court of

the United States ruled that same-sex marriage rights apply in Texas.

Adults and children may change their names in the family court. Parents or legal

guardians must generally file the name change for minor children.

“Common-law marriage” previously existed in Texas in a different form from what it is

today. Earlier in Texas history, there were circumstances where a court would consider a

couple to be married, even though they did not have a marriage license or ceremony. Texas now calls this “Informal Marriage”, which simply refers to the way a couple became

married, which is equally as valid of a marriage as a ceremonial marriage and would require a formal divorce to end.

There are 3 basic elements of informal marriage: (1) the couple cohabits in the State of

Texas for any length of time while (2) the two people agree to be presently married and (3) the two people hold themselves out to others as being married. The couple can file a

declaration of the informal marriage in the county they live in to make the marriage known to others. This is now written into the Family Code so the term “common-law” is not

FAMILY LAW

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technically accurate anymore. Guardianships and probate are closely related to family

law, but are handled in the probate court. Guardianships refer to a group of rights and responsibilities that one person (the guardian) takes for the benefit of another person (the

ward). A guardian for the ward’s property is called the guardian of the estate. A guardian for the ward’s physical well-being is called a guardian of the person. Guardianships are

commonly obtained when someone is a minor or is incapacitated.

Estate planning refers to the process of creating documents that prepare for a person’s

health and financial issues if the person becomes incapacitated or dies. Probate is the

process that a court uses to determine who obtains a person’s property after they die. Proper estate planning uses devices and techniques to make the probate process easier

and more private. A person’s will is a legal estate planning device that instructs the probate court who should get the person’s property after the person dies.

A trust is a legal device that allows a person called the trustee (trusted person) to hold

some property for the benefit of another person, called the beneficiary. The trustee follows the rules of the written trust document and the trustee is subject to certain duties and

restrictions. Trusts can provide many tax benefits, privacy protections and immediate ease of administration.

Other estate planning devices are financial powers of attorney that give a trusted person

the power to make financial transactions for another person; and medical powers of attorney that give a trusted person the power to make medical decisions for another

person.

Written by Dana C. Palmer, Esq. founder of the Dana Palmer Law Group, P.L.L.C., a family law and estate planning law firm in Dallas, Texas. The information provided is for Informational purposes only and does not provide legal advice. Mr. Palmer can be reached at [email protected].


THE FREEDOM OF INFORMATION ACT

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The Freedom of Information Act

Enacted in 1966, the Freedom of Information Act (FOIA) is a federal law that establishes

the public’s right to obtain information from federal government agencies. The FOIA is

codified at 5 U.S.C. § 552. The FOIA establishes a presumption that records in the possession of agencies and departments of the Executive Branch of the U. S. Government

are accessible to the people. The U.S. Supreme Court has held that the purpose of FOIA is

to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

Any person can file a FOIA request, including U.S. citizens, foreign nationals, organizations,

associations, and universities. The FOIA was amended in 1996 to allow for greater access

to electronic information. The FOIA was further amended in 2007 to define a “representative of the news media” as “any person or entity that gathers information of potential interest

to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 45 C.F.R. 1602.2(h). The 2007

amendments also called for each affected agency to designate, by December 31, 2008, a FOIA Public Liaison to “assist in the resolution of any disputes.”

The FOIA gives any person the right to request access to records of the Executive Branch

of the United States Government. The records requested must be disclosed unless they are protected by one or more of the exempt categories of information found in the FOIA (see

section below, Information Exempted from Required Disclosure). However, the FOIA does not require agencies to create records in response to a request, answer written questions,

or analyze data.

Retroactive classification is now permitted as a result of Executive Order 13526, signed into

law in December 2009. An otherwise permissible request may now be denied if the

government determines that the requested information should have been classified under the criteria listed in the prior paragraph. This Executive Order also sets timelines for

automatic declassification of certain non-sensitive information.

Notwithstanding the above protections, the FOIA requires federal agencies to provide the

fullest possible disclosure of information to the public. Administrative and judicial remedies

are available to those persons denied access to records.

In March 2011, the U.S. Department of Justice launched www.FOIA.gov, a website designed

to be a public resource for government-wide FOIA information and data. The website

contains data on FOIA compliance by agency (number of requests received, how they were handled, processing times, backlogs, and fees), information on how FOIA requests work,

and contact information for all government agencies.


Page 41

Where to Send FOIA Requests

The FOIA applies only to Executive Branch departments, agencies, and offices; federal

regulatory agencies; and federal corporations. Congress, the federal courts, and parts of

the Executive Office of the President that function solely to advise and assist the President, are not subject to FOIA. Records obtainable under the FOIA include all “agency records”

that were created or obtained by a federal agency and are, at the time the request is filed,

in that agency’s possession and control. Agency records include print documents, photographs, videos, maps, e-mail, and electronic records. The FOIA requires federal

agencies to maintain information explaining their internal procedures for making a FOIA request, including a handbook, reference guide, indexes, and descriptions of information

locator systems. Most federal agencies have websites that include links dedicated to FOIA. You should first research the exact method by which the agency accepts FOIA requests.

Many agencies now accept FOIA requests electronically, through e-mail, or a web form.

How to Write the FOIA Request

A person seeking records from a federal agency should first try to obtain the documents

through informal means. Contact the FOIA officer at the agency and specify the records

sought by name, number, date, and description, if possible. If the informal request is denied, the next step is to send the FOIA officer a written request for the records. The FOIA

request must meet the following criteria before the agency will take action:

• be in writing and signed by the person making the request.

• state that the request is being made pursuant to the FOIA. • reasonably describe the records being requested.

• state the category of the requester for fee purposes (e.g., commercial, media, educational).

• contain a statement that the requestor agrees to pay all reasonable fees that might be incurred.

• state whether a copy of the records is desired, or inspection of records only.

• be addressed to the agency that maintains the requested records. Go to www.FOIA.gov for a complete list of FOIA contacts by agency.

The standard response time established by the FOIA is 20 business days; however, variables like the complexity of the request and number of pending requests may delay an agency’s

response time.

Information Exceptions from Required Disclosure

National Security Information—Exemption (b)(1) - Protects from disclosure national

security information concerning the national defense or foreign policy, provided that it is

properly classified.


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Internal Personnel Rules And Practices—Exemption (b)(2) - Protects from disclosure records

that are “related solely to the internal personnel rules and practices of an agency.”

Information Exempt Under Other Laws—Exemption (b)(3) - Protects from disclosure

information protected by other federal statutes.

Confidential Business Information—Exemption (b)(4) - Protects from disclosure privileged

or confidential trade secrets and commercial information obtained from a person.

Inter Or Intra Agency Communication—Exemption (b)(5) - This exemption incorporates civil

discovery privileges and documents related to the deliberative process, which allows frank and open discussion of policies within the government.

Personal Privacy—Exemption (b)(6) - Protects from disclosure all information about individuals in “personnel and medical files and similar files” when the disclosure of such

information “would constitute a clearly unwarranted invasion of personal privacy.”

Law Enforcement Records—Exemption (b)(7) - Exemption 7 of the FOIA, as amended,

protects from disclosure records or information compiled for law enforcement purposes, but

only to the extent that the production of such law enforcement records or information:

a) could reasonably be expected to interfere with enforcement proceedings;

b) would deprive a person of a right to a fair trial or an impartial adjudication; c) could reasonably be expected to constitute an unwarranted invasion of personal

privacy; and,

d) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution

which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a

criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.

Records of Financial Institutions —Exemption (b)(8) - Protects from disclosure information

that concerns the supervision of financial institutions.

Geographical and Geophysical Information Concerning Wells—Exemption (b)(9) - Protects

from disclosure geological information on wells.

Fee Categories

Under the FOIA, solely for fee purposes, an agency is required to determine the projected

use of the records sought by the FOIA request, and the type of requester asking for the

documents. As the FOIA was intended to promote the public's access to information, news media organizations and educational institutions are excused from certain fees.


Page 43

To demonstrate that you belong in an educational, news media, or non-commercial fee category, you must provide information about the intended professional, scholarly, or

journalistic uses of the information you receive. List any relevant previous or pending

publications, including books, articles, dissertations, publication contracts or letters of intent or interest, or similar information that shows your ability to disseminate the

information you receive from the agency. State that the materials are not requested solely for a private, profit-making commercial purpose. You should request that, to the extent any

fees are assessable, the agency notify you if those fees will exceed an amount you specify. For a court decision interpreting the fee provisions of the FOIA, see National Security

Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989).

Actual search, review, and duplication fees vary widely by agency. Agencies cannot require

a requester to make an advance payment unless the agency estimates that the fee is likely

to exceed $250 or the requester previously failed to pay proper fees.

Fee Waivers

Under the FOIA, it is possible to have all fees, including copying, waived by the agency if

the material requested “is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the

requester.” If your request fits this statutory criterion, you should make your case for a fee

waiver in your request letter as forcefully as possible. Be sure to describe the scholarly, historical, or current public interest in the material requested. Also identify specific

operations or activities of government to which the request relates, why the information will contribute to an understanding of those activities and operations, why the public in

general would be interested, and why the disclosure would be significant.

Reviewed by Jeffrey M. Harvey and Melissa Gray, Klemchuk LLP. Mr. Harvey can be reached at [email protected].


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Gag Orders

Gag orders, often called “protective orders,” are orders entered by courts restricting the

dissemination of information relating to certain proceedings or trials in criminal or civil

cases. These orders can affect both the media’s access to information and/or the media’s ability to report on such information. Gag orders can be considered a prior restraint on

speech and may be invalid unless certain constitutional protections are in place.

In Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 570 (1976), the United States Supreme

Court examined and overturned a gag order that prohibited members of the press from

reporting on certain subjects relating to a murder trial. The Court looked at four factors in analyzing the gag order: 1) the nature and extent of pretrial news coverage; 2) whether

alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity

(such other measures included change of venue, postponement of trial, use of searching questions of prospective jurors to screen out those with fixed opinion as to guilt and use of

emphatic and clear jury instructions regarding consideration of only evidence presented in open court); 3) how effectively the gag order would prevent the threatened danger; and 4)

the precise terms of the gag order itself. Id. at 562-70. The Court noted several measures that might be used to “blunt the impact of pretrial publicity,” including postponing the trial,

changing the trial venue, screening prospective jurors to eliminate those with fixed opinions as to guilt or innocence, sequestering the jurors, and instructing the jurors on their sworn

duty to decide the issues only on evidence presented in court. Id. At 563-64. Ultimately,

the Court found that the gag order at issue was an unconstitutional prior restraint. Id.at 570.

In voiding an order that restrained counsel, clients and witnesses from disseminating information relating to certain civil proceedings, the Texas Supreme Court applied a slightly

different test from the one set forth in Nebraska Press. See Davenport v. Garcia, 834 S.W.2d

4, 10-11 (1992). Specifically, the Texas Supreme Court announced the following test:

[A] gag order in civil judicial proceedings will withstand constitutional scrutiny only

where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of

their dispute, and (2) the judicial action represents the least restrictive means to

prevent that harm.

Id.

While the Nebraska Press test is based on the First Amendment of the United States

Constitution in a criminal setting, the Davenport test is based on Article I, Section 8 of the Texas Constitution which provides broader free speech protections than the U.S.

Constitution. Davenport. Id. at 8-9. The first portion of the Davenport test takes its genesis from two early Texas cases in which the Texas Court of Criminal Appeals voided orders

prohibiting the reporting of trial testimony— specifically Ex parte Foster, 71 S.W. 593, 594-

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96 (Tex. Crim. 1903) (voiding trial court’s order prohibiting the publication of testimony of

witnesses in a murder case) and Ex parte McCormick, 88 S.W.2d 104, 104-07 (Tex. Crim. 1935) (voiding order prohibiting newspaper reporters from publishing trial testimony until

after the subsequent trial of the companion cases of co-defendants). Id. Shortly after deciding Davenport, the Texas Supreme Court again applied its two-prong test to void a

protective order that prohibited a newspaper from publishing information already disclosed in open court and made part of the public record. See Star-Telegram, Inc. v. Walker, 834

S.W.2d 54, 55-58 (1992).

Testimony as to “fear, apprehension and possibilities” is not enough to support a gag order.

The record must contain evidence of an actual threat to the judicial process. Markel v. World

Flight, Inc., 938 S.W.2d 74, 79-80 (Tex. App. –San Antonio 1996).

News organizations may challenge a gag order by intervening in the lawsuit. See, e.g., In

re Hearst Newspapers Partnership, L.P., 241 S.W.3d 190,192 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) In Hearst, news organizations intervened in a lawsuit to challenge a trial court order that barred discharged jurors from discussing what their votes would have

been had the case not settled. Id. The appellate court declared the gag order unconstitutional under the Texas Constitution. Id. at 196. Conversely, an appellate court

upheld a gag order challenged by a newspaper in In re Houston Chronicle Publishing Co.,. 63 S.W.3d 103,110 (Tex. App.—Houston [14th Dist.] 2001, no pet.). The trial court barred

attorneys, the defendant, and certain witnesses from speaking to the media pending the

defendant’s prosecution. Id. at 105. The appellate court recognized the newspaper’s right to challenge the order, but ultimately upheld the order. The appellate court held that the

order was reasonable because the trial court had independently determined that the media coverage was interfering with Andrea Yates’ right to a fair trial, and the restraint preserved

that right. See id. at 107-10.

Orders restricting the ability of the lawyers in the case to comment are more common since

the United States Supreme Court has often criticized judges for failure to control out of

court statements by lawyers. Some courts have specifically precluded comments on evidence to be introduced, witnesses to be called, and the merits of either side’s case. A

complete ban on lawyer comments, however, would likely go too far. Limitations on the attorney speech should be no broader than necessary to protect the integrity of the judicial

process. United States v. Salameh, 992 F.2d 445, 447 (2nd Cir. 1993).

While there is no general prohibition against them, gag orders remain generally disfavored

by courts. A media representative who is faced with a gag order should seek the advice of

counsel as to the best way to proceed in light of such order. Additionally, at least one federal appellate court outside of Texas has upheld a trial judge’s finding a journalist in contempt

for refusing to reveal the source of information that was obtained in violation of a gag order. See In Re Special Proceedings, 373 F.3d 37, 47 (1st Cir. 2004).



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Health Law

An Overview of Health Law Issues Impacting Providers

The American healthcare system is complex and highly regulated by state and federal laws

and regulations. Health law covers a variety of topics including insurance issues, employee

benefits matters and healthcare provider compliance.

This information is designed to summarize the legal issues pertaining to healthcare

providers. For example, depending upon the services provided, the provider may have to

comply with various licensure requirements (e.g., physician licensure, pharmacy licensure,

facility licensure, and/or clinical laboratory requirements, etc.).

If the healthcare provider accepts Medicare, Medicaid or reimbursement from any

government payor, then the provider will also need to ensure that its compensation

arrangements and contractual matters comply with various federal regulatory laws. Such

as, the Anti-Kickback Statute, which is a criminal prohibition against payments in any form

made to induce or reward the referral or generation of federal healthcare program business.

The Stark Law prohibits referrals by physicians, who have a financial relationship with an

entity (for the furnishing of designated health services) for which payment otherwise may

be made under Medicare, unless an exception applies. (Designated health services include

the following: (i) clinical laboratory services; (ii) physical therapy, occupational therapy,

and speech-language pathology services; (iii) radiology and certain other imaging services;

(iv) radiation therapy services and supplies; (v) durable medical equipment and supplies;

(vi) parenteral and enteral nutrients, equipment, and supplies; (vii) prosthetics, orthotics,

and prosthetic devices and supplies; (viii) home health services; (ix) outpatient prescription

drugs; and (x) inpatient and outpatient hospital services.) Depending upon the structure

or type of provider, these laws may or may not be applicable.

Various states, including Texas, have anti-solicitation or anti-referral laws that pertain to

payments made to generate healthcare services reimbursed by not only a government

payor, but also by private insurance or paid for out of pocket. Also, from a private insurance

perspective, the provider will need to negotiate, and comply with the terms of, various

managed care contracts.

In addition, there are state law concerns such as the corporate practice of medicine doctrine

and fee splitting laws. The fee splitting laws prohibit payment by or to a physician for the

referral of a patient. The corporate practice of medicine prohibits, in certain states such as

Texas, a lay corporation from employing a physician or controlling a physician's practice

of medicine. Depending upon the circumstances, in order to avoid a violation of the

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corporate practice of medicine, the corporation may, pursuant to an independent contractor

agreement, contract with a physician to provide the applicable services.

Healthcare providers are also subject to federal and state privacy and security laws and

regulations. The federal Health Insurance Portability and Accountability Act of 1996 Privacy

Rule and Security Rule, and Health Information Technology for Economic and Clinical Health

Act, as modified by the Final Omnibus Rule effective as of March 26, 2013 (collectively

referred to as HIPAA) contain specific requirements on how health information should be

safeguarded and protected by healthcare providers, health plans, and healthcare

clearinghouses, which are referred to as “covered entities”. Depending upon how the

provider is structured, it will most likely be subject to HIPAA as a covered entity healthcare

provider. In addition, a provider’s health plan for its employees may be subject to HIPAA.

Written by Cheryl Camin Murray, sharehold at Winstead PC. She can be reached at

[email protected].


IMMIGRATION LAW

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Immigration Law

A highly controversial and politically charged topic, immigration law is extremely complex

and considered dysfunctional by many lawyers who work in this area daily. One court aptly

declared, “[I]t would seem that should be a simple issue with a clear answer, but this is

immigration law where the issues are seldom simple and the answers are far from clear."

Alanis-Bustamante v. Reno 201 F.34d 1303 (11th Cir. 2000). Against this setting, here are

a few U.S. immigration law “basics” that members of the media should know.

Law and Order

U.S. immigration is regulated by numerous federal laws and agencies. In addition, many

states have enacted immigration-related laws, which are subject to challenge if they conflict

with federal laws. The Immigration and Nationality Act (INA) is the primary federal

legislation governing immigration into the U.S. The Department of Homeland Security

(DHS) oversees the enforcement of immigration laws through three agencies that are

responsible for different aspects of enforcement and services:

U.S. Citizenship and Immigration Services (USCIS) accepts and adjudicates applications for visas, permanent residence (“green card’), citizenship, and other

immigration benefits.

U.S. Immigration and Customs Enforcement (ICE) is the policing agency charged

with removal of undocumented immigrants and investigation of employer compliance with employment eligibility verification requirements.

U.S. Customs and Border Patrol (CBP) patrols the U.S. borders and international airports to deter illegal entry into the U.S.

In addition, the Department of State manages the applications for U.S. visas in foreign

countries. The Department of Justice’s Office of Special Counsel for Immigration-Related

Unfair Employment Practices (OSC) investigates and prosecutes immigration-related

discrimination claims.

Admission into the U.S.

A foreign national can enter the U.S. legally as a non-immigrant, immigrant, or refugee if

he or she meets the stringent criteria of each category. Non-immigrants are admitted

temporarily into the U.S. for a specific purpose such as tourism, study, diplomacy, or

IMMIGRATION LAW

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temporary employment. When applying for the necessary permission (“visa”) to enter, in

most cases, they prove an intent to return to their home country.

Immigrants, on the other hand, must intend to reside permanently in the U.S., must qualify

for permanent residence (“green card”), and may eventually become citizens. Green cards

may be issued to those who are spouses, children, parents, or siblings of U.S. citizens or

permanent residents. This is called family-based immigration. Immigrants who have needed

job skills and have a job offer from a U.S. employer may receive green cards as well. This

is called employment-based immigration.

Refugees are those outside the U.S. who can prove persecution or a well-founded fear of

persecution in situations of “special humanitarian concern” to the United States. Foreign

nationals who are already in the U.S. in a different status can apply for asylum if they meet

the statutory definition of refugee.

Immigration is often limited by quota as well as restrictive criteria. For example, the

professional worker non-immigrant visa, H-1B, is available to only 65,000 new applicants

per fiscal year. Immigrant visas based upon family relationships or employer sponsorships

are subject to a worldwide cap of 675,000 and a ceiling based upon country of birth. As a

result of these caps, the waiting lists for green cards can be as long as 20 years. Also, there

is an annual limit of refugee admissions, and the allocation of these numbers among refugee

groups are determined at the start of each fiscal year by the President after consultation

with the Congress.

Exclusion and Removal

Even if a foreign national qualifies for non-immigrant, immigrant, or refugee/ aslyee status,

he or she can be found to be ineligible for admission and excluded from the U.S. under

“grounds for inadmissibility” of the INA such as:

health-related grounds

criminal history

national security and terrorist concerns

public charge (e.g., indigence)

seeking to work without proper labor certification (proof of needed skills)

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illegal entrants and immigration law violations

lacking proper documents

being ineligible for citizenship

previous removal (deportation) from the U.S.

In some cases, discretionary waivers on these grounds are available so that the applicant

can be admitted, e.g. waivers based upon extreme hardship on the U.S. citizen’s spouse.

Aliens may be removed from the United States for a variety of reasons, such as entering

into the country unlawfully, violating or overstaying a visa, or committing a crime. In most

cases, ICE issues a notice to appear before the immigration court in a removal (deportation)

hearing. A removal hearing is an administrative hearing where the alien can defend against

removal and assert any available claims of legal eligibility to remain in the U.S. There is no

right to counsel in this proceeding. A single immigration judge makes the final decision of

removal, which can be appealed through the federal courts. An order of removal requires

the alien to remain outside the U.S. for a minimum of 10 years.

Expedited removal is a controversial provision under which an alien who lacks proper

documentation or has committed fraud or willful misrepresentation of facts may be deported

without a hearing or judicial review, unless the alien indicates a fear of persecution. Rather,

an ICE or CBP agent can detain and remove an alien immediately and without a court order.

Expedited removal is only used in limited circumstances as determined by the DHS.

Reviewed by Sadé Lewis, Oklahoma City University School of Law, J.D. Candidate, 2016, Texas Legal

Society, President. She can be reached at [email protected].


LEGAL ISSUES IN NEWSGATHERING

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Legal Issues in Newsgathering

Invasion of Privacy

Texas courts recognize three claims relating to the right of privacy: (1) intrusion; (2) public

disclosure of private facts; and (3) misappropriation of a person's name or likeness.

The first is a claim for intrusion, which is defined as: (1) an intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2)

would be highly offensive to a reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512

(Tex. 1993). Two recent cases addressed this tort and clarified that there may be an invasion of privacy even if there is no physical invasion or eavesdropping involved. In the

first, the plaintiff alleged the defendant hired “bank account search firms” to obtain the plaintiff’s bank account information for purposes of a garnishment action. Plaintiff also

alleged the defendant hired people to surveil him. The court found this was sufficient to state a claim for intrusion under Texas law. Bray v. The Cadle Co., Civ. Act. No. 4:09-cv-

663, 2010 U.S. Dist. LEXIS 109470 at *46-48 (S.D. Tex. Oct. 14, 2010). The second case involved the plaintiff’s allegations that Delta Airlines hacked into her computer and stole

email messages. The court found these alleged facts could support an intrusion claim. Coal.

for an Airline Passengers’ Bill of Rights v. Delta Airlines, Inc., 693 F. Supp. 2d 667, 675-77 (S.D. Tex. 2010). However, while there need not be a physical invasion, what is invaded

must be something inaccessible to the public. Courts have held that the broadcast of a person’s residence, for example, is not an invasion of privacy where the broadcast shows

nothing more than what can be seen from a public street. Wehling v. Columbia Broad. Sys., 721 F.2d 506, 509 (5th Cir, 1983); American Broad. Cos. v. Gill, 6 S.W.3d 19, 28 (Tex.

App.—San Antonio 1999, pet, denied), disapproved on other grounds, Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000).

The second basis for an invasion of privacy claim is the public disclosure of private facts. A

private facts claim entails (1) the publication of facts concerning a person's private life, (2) the publication of which would be highly offensive to a reasonable person of ordinary

sensibilities, and (3) the facts publicized are not of legitimate public concern. Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). This third requirement,

that the facts not be of legitimate public concern, limits liability under this theory. For

example, In Star-Telegram, Inc. v. Doe, the court held that facts in a newspaper article which potentially identified a rape victim were of legitimate concern and would not support

a public disclosure of private facts claim. 915 S.W.2d 471, 474 (Tex. 1995). Likewise, once information is made a matter of public record, the protection accorded freedom of speech

and press by the First Amendment may prohibit an individual from recovering for injuries caused by further disclosure of and publicity given to such information, at least if the

information is newsworthy. Florida Star v. B.J.F., 491 U.S. 524, (1989).

Finally, misappropriation of a person's name or likeness is the third basis for an invasion of

privacy claim. In order to be actionable, a plaintiff must show: (1) the appropriation of the


Page 52

plaintiff's name or likeness must be for the value associated with it, and not in an incidental

manner or for a newsworthy purpose, (2) the plaintiff can be identified from the publication, and (3) the defendant benefited from the appropriation. Matthews v. Wozencraft, 15 F.3d

432 (5th Cir. 1994). Some jurisdictions recognize the tort of false light as a fourth basis for invasion of privacy, however, Texas does not. Cain v. Hearst Corp., 878 S.W.2d 577 (Tex.

1994).

Wiretaps

Federal and state laws provide civil causes of action for the unlawful interception, disclosure,

or use of wire, oral, or electronic communications, as well as criminal sanctions. See 18 U.S.C. § 2511; TEX. CIV. PRAC. & REM. CODE § 123.001, et. seq.; TEX. PENAL CODE §

16.02. Texas is a "one party consent" state, meaning the interception is not unlawful if one

party to the communication consents to the interception, disclosure, or use of the communication. See TEX. CIV. PRAC. & REM. CODE § 123.001(2); TEX. PENAL CODE §

16.02(c)(4). Some states require the consent of all parties to the communication. Telephone conversations are just one type of communication that falls within the scope of state and

federal Wiretap laws. With regard to unlawful interceptions by third parties, the media has a First Amendment right to publish information it lawfully obtains, see Fla. Star v. B.J.F.,

491 U.S. 524 (1989), but the Supreme Court has held that a journalist is protected by the First Amendment only if the journalist played no role in the interception of the

communication, the journalist did not obtain the communication unlawfully, and the

communication is about a matter of public concern. Bartnicki v. Vopper, 532 U.S. 514 (2001).

"Media Ride-Alongs"

For years, it was common for members of the media to "ride-along" with police while they

conducted search and arrest warrants on private property. This is no longer the case, as

the permissibility of “ride-alongs” has been called into question. In Wilson v. Layne, 526

U.S. 603, 614 (1999), the Supreme Court held that media participation in the execution of search warrants may constitute a violation of the Fourth Amendment in certain

circumstances. While Wilson established that police act unconstitutionally when they invite the media into a private home or on private property while executing a search warrant, the

court did not resolve whether the media could be jointly charged with the police, given the Fourth Amendment’s requirement of state action. Courts have addressed this issue with

varying results. In a recent case in the Southern District of Texas, a federal inmate filed

suit alleging violations of his Fourth Amendment rights when a media crew was allowed to video a search of his house. Osamor v. Channel 2 News, Civ. Act. No. H-09-2788, 2010 WL

2036013 at *1-2 (S.D. Tex. May 19, 2010). The court rejected the claims for damages against the news media defendants on the ground that they were not state actors, in

contrast to the agents involved in the search. Id. at *4.

Trespass


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A person can be civilly and criminally liable for entering private property without the consent

of the owner. See TEX. PENAL CODE § 30.05; Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 623 (Tex.App.—Corpus Christi 1994, no writ). The Penal Code prohibits such entry if

the person had: (1) notice that entry was forbidden, including notice via "No Trespassing" signs or other means identified in the statute; or (2) failed to depart after receiving notice

to leave. TEX. PENAL CODE § 30.05(a). Liability for civil trespass, however, is not conditioned on such notice. Rather, courts define civil trespass broadly, namely, as arising

whenever a person “enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty

to the owner or person in charge or on any business of such person, but merely for his own

purposes, pleasure or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person

in charge.” Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933-34 (Tex. Civ. App.—Corpus Christi 1981, writ ref d n.r.e.). Criminal trespass is typically a Class B misdemeanor,

which is punishable by a fine not to exceed $2,000, a jail term not to exceed 180 days, or both. TEX. PENAL CODE §§ 30.05(d), 12.22. Where consent is obtained a reporter also

should consider whether the person granting access has authority to do so and whether there are any restrictions on the right of access, such as limiting access to only certain

areas or prohibiting cameras.

Fraud or Deception

Gaining access to information or property by means of false pretenses may give rise to

liability. A highly publicized case that illustrates the risk associated with misrepresenting

oneself involved two ABC investigative reporters who were hired at a Food Lion supermarket in North Carolina by submitting false names and employment histories. See Food Lion, Inc.

v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999). Food Lion sued ABC and the reporters for fraud, trespass, and breach of the duty of loyalty owed by employees, among

other claims, and obtained a jury verdict in excess of $5 million. Ultimately, after appeal, ABC and its reporters were held liable for only $2 in nominal damages. While the case is

generally viewed as a victory for the media, it nevertheless demonstrates why journalists

must proceed with caution when engaging in undercover investigations.

SLAPP Suits

In an attempt to reduce the potentially chilling effect on speech of certain lawsuits, Section

27 of the Texas Civil Practice and Remedies Code allows for parties to file a special motion to dismiss legal actions that are “based on, relate[d] to, or [are] in response to a party’s

exercise of the right of free speech, right to petition, or right of association.” TEX. CIV. PRAC. & REM. CODE § 27.003. Under the statute, if the court finds that the suit relates to

the right of free speech, right to petition, or right of association, it must dismiss the action unless the “the party bringing the legal action establishes by clear and specific evidence a

prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. &

REM. CODE § 27.005. Additionally, upon dismissal of such a claim, the court will award “court costs, reasonable attorney's fees, and other expenses incurred in defending against

the legal action” as well as “sanctions against the party who brought the legal action.” TEX.


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CIV. PRAC. & REM. CODE § 27.009. The motion to dismiss must be filed within 60 days of

the date of service of the legal action, but the deadline can be extended on a showing of good cause. Id. at § 27.003.

Notably, however, the statute does contain certain categorical exclusions. First, it does not apply to “an enforcement action that is brought in the name of this state or a political

subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.” TEX. CIV. PRAC. & REM. CODE § 27.010. Second, it does

not apply to “a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or

lease of goods, services, or an insurance product or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” Id. Finally, it does not apply

to “a legal action seeking recovery for bodily injury, wrongful death, or survival or to

statements made regarding that legal action.” Id.

Drone surveillance

Chapter 423 of the Texas Gov’t Code, effective September 1, 2013, addresses the capture of images using unmanned aircraft. The bulk of the text focuses on non-applicability of the

Act, but § 423.003 makes it a Class C misdemeanor to use an unmanned aircraft to “capture an image of an individual or privately owned real property in this state with the intent to

conduct surveillance on the individual or property captured in the image.” It is a Class B misdemeanor under Tex. Gov’t Code § 423.004, subject to various express defenses to

possess, disclose, display, distribute or otherwise use an image captured in violation of § 423.003. “Surveillance” is not defined.

Confidential sources

The Texas Free Flow of Information Act, adopted in Texas in 2009, provides journalists with

a potentially powerful privilege that can shield them from having to divulge their sources.

Tex. Civ. Prac. & Rem. Code § § 22.021 - 22.027; Tex. Code Crim. Proc. Arts 38.11 & 38.111. To successfully invoke this privilege, one must meet two threshold requirements:

(1) one must be a “journalist” as defined by the statute; and (2) one must have obtained the relevant information in one’s capacity as journalist. While the statute employs a

relatively broad definition of “journalist” -- namely, anyone who “gathers, complies, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or

publishes news or information that is disseminated by a news medium or communication service provider” -- it contains an important limitation; it applies only to those who earn a

“substantial portion” of their “livelihood” from journalism, thus excluding many “bloggers,”

a category of newsgatherers of growing importance. Tex. Civ. Prac. & Rem. Code § 22.021. Moreover, while the privilege provided by the Texas shield law can be invoked in both civil

and criminal contexts, it is only a “qualified” privilege; it can be overcome by a sufficient showing of necessity.



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Probate Law

Do you really need a will? Who is in charge after you die? What does a fight look like in

Probate Court? Probate law covers a variety of topics including wills & estate planning, guardianships, trusts, and litigation.

The Probate Process

Probate is the act of proving that a Will was signed and executed in accordance with the legal requirements of the State where it was signed. It is through probate that property is

legally transferred from the estate of a person (the "decedent") to the rightful beneficiary. Probate identifies and inventories assets, pays off creditors, and distributes assets

according to the terms of the Will. Absent a Will, Texas intestacy laws will control the portioning and distribution of the various forms of property.

Determining the rightful beneficiaries depends on whether the decedent had a valid Will. There are two questions a qualified probate attorney should ask:

(1) whether the decedent died with or without a Will. The answer to this question

will let the probate attorney know which process must be followed. Although many of the documents may be the same, it is a completely different process;

(2) what are the assets of the estate. The answer to this question will let the probate attorney know whether probate is even necessary.

Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under

a Will. A probate court (surrogate court) decides the legal validity of a testator's (deceased person's) Will and grants its approval, also known as “granting probate,” to the executor.

The probated Will then becomes a legal instrument that may be enforced by the executor

in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the Will, as having legal power to dispose of the

testator's assets in the manner specified in the testator's Will. However, through the probate process, a will may be contested.

Requirements of a Texas Will

The testator must:

Be at least 18 years old, legally married, or serving in the armed forces;

Be of sound mind at the time of executing the Will;

Not be forced or deceived to make the Will;

Have the intention to distribute property upon death;

https://en.wikipedia.org/wiki/Legal

https://en.wikipedia.org/wiki/Estate_(law)

https://en.wikipedia.org/wiki/Property

https://en.wikipedia.org/wiki/Probate_court

https://en.wikipedia.org/wiki/Testator

https://en.wikipedia.org/wiki/Legal_instrument

https://en.wikipedia.org/wiki/Executor

https://en.wikipedia.org/wiki/Personal_representative

https://en.wikipedia.org/wiki/Personal_representative

PROBATE LAW

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2 Types of Wills

1. Holographic Will

Written entirely in the handwriting of the person creating it. Typewritten words will

not be considered or added.

Signed and dated by the person writing it.

Can be written on anything. Famous examples include a t-shirt, a bumper, and a napkin.

2. Formal Will

Typically typed

Signed by the person it is prepared for (“testator”);

Witnessed by 2 credible witnesses above the age of 14 (signatures required);

Testator and witnesses must sign the Will in the presence of each other.

A beneficiary of the formal will cannot be one of the witnesses to it.

Most Wills should now have a self-proving affidavit for Probate purposes later.

Will Contests

There may be instances where one needs to challenge the validity of a Will, because they

believe the testator was unduly influenced to sign the will, or did not sign the Will of his/her own free will. Another reason to contest a will is if the Testator lacked testamentary

capacity, which means he did not have the mental capacity needed to understand all of the

contents of the will.

Under Texas laws, you only have two (2) years to file a Will contest after the Will has been

admitted to Probate. Will contests are not easy and are often emotionally draining. However, it may be a person’s only opportunity to secure property that should be theirs.

Estate Planning

Few people enjoy discussing or thinking about their own death. However, having a basic

estate plan is a responsible way to ensure your loved ones are taken care of after you’re gone and what you worked hard for your whole life is protected.

An estate is an individual’s interest in all property owned at the time of death, whether real

or personal, tangible or intangible. Non-probate assets included in an “estate” include life insurance policy/annuity/IRA/Keoghs/401K with a properly designated beneficiary, payable

on death bank accounts, joint tenants with right of survivorship accounts or property, and assets put into a properly funded trust.

In Texas, property is either separate or community property. Absent clear and substantial evidence to the contrary, any asset acquired during marriage is deemed to be one-half

PROBATE LAW

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owned by the husband and one-half owned by the wife. This distinction would hold true for

same-sex marriages sanctioned or recognized by Texas. Property owned before marriage, property received by gift, devise, or descent (inheritance), property flowing from previous

separate property (except e.g. new rent from old property), and personal injury lawsuit damages (except for damages representing earning power) are considered separate

property.

Attorneys prepare estate plans for clients identifying their goals and objectives ranging from

tax planning by minimizing estate/inheritance tax, gift tax and generation skipping transfer tax, to asset protection by preserving and transferring wealth to their family members.

Attorneys also advise clients on business succession planning and entity formation for

family owned businesses, which may include Family Limited Partnerships and LLC formation.

Trusts

Many different types of Trusts are available to fit many different situations affecting many types of property. A Trust is an agreement that one person makes to hold property for the

benefit of another. A Trust allows a person to put conditions on how and when assets are distributed upon their death (or sometimes during their life…”Living Trust”). It allows one

to reduce estate and gift taxes and distribute assets to beneficiaries without delay or cost

or publicity. It also lends protection from creditors and lawsuits. If a person wants to avoid any of their assets going through probate (or intestacy), they must “fund the Trust” by

transferring assets into the Trust.

4 Components of a Trust:

1. Someone (known as the trustor or settlor) must create the Trust;

2. A person or entity (“trustee”) must agree to hold money and/or property for the

benefit of someone else;

3. Money, property, and/or assets must be held by the trustee;

4. Someone must benefit from the trust (“beneficiary”).

Trusts, taxes, and estate planning are highly specialized areas related to and overlapping probate; a person should carefully consider who they have helping them develop a plan for

who is in charge after they die, where and how their property gets distributed, and defending the rightful beneficiaries’ claim to certain property if the unfortunate

circumstance of a Will Contest arises.

Reviewed by Adam M. Swartz., of The Swartz Law Firm, PLLC. He can be reached at [email protected]. Commentary expresses only the view of the author and does not necessarily reflect the views or opinions of THE SWARTZ LAW FIRM. The information provided herein is not intended to be legal advice.


REPORTER’S PRIVILEGE

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Reporter’s Privilege

In 2009, Texas enacted a media shield law, which protects journalists’ work product and

the confidentiality of their sources in civil and criminal cases. See Texas Free Flow of

Information Act, 81st Leg., R.S., ch. 29, 2009 TEX. SESS. LAW SERV. 29 (codified at TEX. CIV.

PRAC. & REM. CODE §§ 22.021–.027, TEX. CODE CRIM. PROC. arts. 38.11, 38.111)(the “Shield

Law”). The Shield Law’s protections are strongest when information is sought in civil cases,

but applies to all types of official proceedings, including civil trials and hearings, criminal

trials and grand jury proceedings, arbitrations, and executive or legislative proceedings.

The law defines a “journalist” to include all types of professional journalists who gather

information for dissemination by a new medium, including those working in traditional and

online media, but does not protect citizen journalists who do not derive a significant portion

of their livelihood from journalism.

In civil cases, the Shield Law provides a qualified privilege, requiring the party seeking

documents or testimony from a journalist, or the journalist’s news outlet, to show that the

information sought is relevant, the information is essential to the maintenance of a claim,

all reasonable efforts to obtain the evidence from an alternative source have been

exhausted, the reporter received timely notice, the interest in disclosure outweighs the

interest in newsgathering, and the information sought is not speculative or peripheral to

the case. Publication of the privileged information does not waive the privilege.

In criminal cases, a journalist, or the journalist’s news outlet, may be compelled to identify

a confidential source only if the requesting party makes a clear and specific showing that

(1) the journalist observed the source committing a felony; (2) the source has confessed

to committing a felony to the journalist; (3) probable cause exists that the source

committed a felony; or (4) disclosure of the source is reasonably necessary to prevent

reasonably certain death or substantial bodily injury. For all circumstances, the requesting

party must show that it has exhausted reasonable alternative sources for the information.

If the crime at issue is a misdemeanor and there is no likelihood of substantial bodily injury,

the privilege is absolute, and the journalist is not required to identify the confidential source.

Published information is not privileged in a criminal case, and where testimony or

information being sought in a criminal proceeding is unpublished (video outtakes, reporter’s

notes, etc.) and does not relate to a confidential source, the privilege is qualified. The

requesting party must make a clear and specific showing that all reasonable efforts have

been exhausted to obtain the information from alternative sources and that the unpublished

information, document, or item (a) is relevant and material to the proper administration of

REPORTER’S PRIVILEGE

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the official proceeding for which the testimony, production, or disclosure is sought and is

essential to the maintenance of a claim or defense of the person seeking the testimony,

production, or disclosure; or (b) is central to the investigation or prosecution of a criminal

case and based on something other than the assertion of the person requesting the

subpoena, reasonable grounds exist to believe that a crime has occurred.

As of the publication of this guide, there is no federal shield law.

In addition to the Texas Shield Law, there is some support in state and federal case law for

a qualified privilege under the free speech provisions of the United States and Texas

Constitutions.

Reviewed by Jess Davis, of Law360. She can be reached at [email protected].


RULE 76A

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Rule 76a

An Overview of the Texas Rule on the Sealing of Civil Court Records

Court records in Texas civil suits are presumptively open for public inspection and may not

be sealed without strict compliance with Rule 76a of the Texas Rules of Civil Procedure.

Rule 76a contains stringent standards for the sealing of court records and procedural safeguards of the public’s right to access those records. Even with the rule there is no

absolute right to access court records immediately. And, the rule does not apply to criminal or family law cases; however, in criminal law cases, constitutional and common law

principles may require public access to court records.

In 1990, the Texas Supreme Court adopted Rule 76a to curtail the routine sealing of court

records. It followed a series of articles published in 1987 by The Dallas Morning News

reporting on the rampant practice of sealing case files at the Dallas County courthouse. According to the newspaper series, more than 200 sealing orders were entered over a six

year period in cases ranging from fatally defective products to environmental contamination to medical malpractice.

By learning about Rule 76a, a journalist will understand his or her right to inspect court

records and will be able to inquire if proper procedure has been followed where records have been sealed. The rule also authorizes any member of the public, including members

of the news media, to challenge the sealing of court records.

Presumption of Openness and Standard for Sealing

Rule 76a(1) establishes that “court records, as defined in this rule, are presumed to be

open to the general public.” Court records may be sealed only upon a showing of all of the

following:

(a) a specific, serious and substantial interest which clearly outweighs:

1) this presumption of openness;

2) any probable adverse effect that sealing will have upon the general public health or safety;

(b) no less restrictive means than sealing records will adequately and effectively

protect the specific interest asserted.

Definition of Court Records

Rule 76a(2) defines court records as “all documents of any nature filed in connection with

any matter before any civil court.”

Exceptions from the definition include:

RULE 76A

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“documents filed with the court in camera, solely for the purpose of obtaining

a ruling on the discovery of such documents” “documents in court files to which access is otherwise restricted by law”

“discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights”

“documents filed in an action originally arising under the Texas Family Code.”

The below documents are considered court records and therefore subject to the

presumption of inspection under Rule 76a(1):

Unfiled settlement agreements, though not the settlement amount, seeking to restrict disclosure of information which concern “matters that have a

probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.”

Unfiled discovery “concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office,

or the operation of government,” are considered court records and therefore subject to the presumption of inspection under Rule 76a(1). Depositions and

witness statements may well fall within the bounds of unfiled discovery if the

other requirements are met.

Notices

Rule 76a(3) requires notice to the public of any motion to seal court records. The party

moving to seal must post the notice at the place where notices for meetings of county commissioners’ court are posted. The notice must include a brief but specific description of

the nature of the case, the records sought to be sealed and the time and place of the hearing. Copies of the notice must also be filed with the clerk of the court in which the case

is pending and with the clerk of the Supreme Court of Texas in Austin.

Public Hearing, Intervention and Order

A hearing on a motion to seal court records must be held in open court and may not take

place less than 14 days after public notice is posted. Non-parties (including members of the

news media) have a right to intervene by filing a plea in intervention and paying the required filing fee. The court may order a temporary sealing order prior to the public

hearing, which may be withdrawn or modified upon a motion by a party or an intervener. A sealing motion shall be decided by written order open to public inspection. The written order

shall state the specific reasons for the court’s ruling, the specific portions of court records which are to be sealed, and the time period for which the records are to be sealed.

RULE 76A

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Continuing Jurisdiction and Appeal

Even after a case has concluded by entry of final judgment, the court retains jurisdiction to

enforce, alter or vacate a sealing order. However, the sealing order will not be reconsidered

if the motion is made by a party or intervener who had actual notice of the hearing, unless he or she can show a changed circumstance materially affecting the order. Once the court

issues a sealing order, the order is severed from the rest of the case and considered a final

appealable judgment.

Conclusion

Rule 76a is an important protection of the public’s right to know. It is particularly useful for

members of the news media. In most cases, a reporter’s right to inspect court files is protected by the rule, which may be relied upon as authority to do so when requesting files

from court personnel. When a reporter is refused access to court records, a reporter should request to inspect an order sealing the records and attempt to determine if the procedures

of Rule 76a were met in sealing court records. A member of the news media has the right to challenge irregular sealing of records and to oppose sealing when a party gives notice of

an effort to seal court records. In Dallas County, court records that have not been sealed

are available online at www.dallascounty.org/public_access.php.


http://www.dallascounty.org/public_access.php


TAX LAW

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Tax Law

Taxation in the U.S. is a complex system, involving payments to at least four levels of

government, including the local government (including cities and counties), regional entities

(such as school, utility and transit districts), state governments and the federal government.

Local and Regional Taxes

In Texas, the primary source of local and regional tax revenue is the property tax. This tax

is levied annually on the value of real estate and business tangible personal property. Many cities and transit districts also impose sales tax.

State Taxes

The State of Texas imposes sales tax on most retail sales at a rate of 6.25%. Local and

regional governments may impose sales taxes at an additional rate of up to 2% combined.

The state also taxes business entities with the revised Texas franchise tax, which is also referred to as the “margin tax.” The margin tax incorporates some concepts from the old

franchise tax but is different in several important respects.

As a general matter, any legal entity that does business in Texas and provides some form

of limited liability protection for its owners must pay the margin tax. This includes

corporations, limited partnerships (LPs), limited liability companies (LLCs), limited liability partnerships (LLPs), banking corporations, savings and loan associations, business

associations, professional associations, and some joint ventures. Even though general partnerships do not provide limited liability protection for its owners, they are subject to

the margin tax unless only natural persons are partners. Sole proprietorships are not

subject to the margin tax.

The margin tax is levied on an entity’s Texas taxable margin at a rate of 1/2% for taxable

entities primarily engaged in retail or wholesale trade and 1% for all other taxable entities. For 2013, the Comptroller does not require the filing entity to pay the margin tax if total

revenue is less than $1,030,000 or the tax calculated on the taxable margin is less than

$1,000.

Taxable margin equals total revenue less the greatest of: (i) 30% of revenue; (ii) cost of

goods sold; or (iii) compensation expense. Cost of goods sold includes all direct costs of acquiring and producing goods along with certain indirect costs. Compensation expense

includes up to $330,000 in wages and compensation paid to employees, officers, owners,

partners, directors, and management companies along with all benefit expenses incurred by the business. Taxable margin cannot exceed 70% of revenue. A taxable entity will

multiply its total taxable margin by its Texas apportionment factor to calculate its Texas

TAX LAW

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taxable margin, which is subject to a 1/2% or 1% tax. The apportionment factor is a ratio

of Texas gross receipts to total gross receipts from the entire business.

An entity treated as a passive entity under the Texas franchise tax rules will not owe margin

tax. Texas franchise tax defines a passive entity as either a general partnership, limited

partnership, or a trust (other than a business trust) with at least 90% of its federal gross

income arising from a list of sources including interest, dividends, option premiums, cash

settlements, gains from selling securities, capital gains from the sale of real property, and

gains from selling commodities. Additionally, a passive entity can derive no more than 10%

of its federal gross income from an active trade or business. If an entity meets these

requirements, it will be treated as a passive entity. Passive entities registered with the

Secretary of State or with the Comptroller's office are required to file a No Tax Due

Information Report each year.

Federal Taxes

The federal government imposes a number of taxes, including individual income tax,

corporate income tax, payroll taxes, estate and gift tax, and excise taxes.

Individual income tax. Ordinary income (which includes wages and other compensation and

interest income), minus deductions, is taxed based on a graduated scale of income tax rates, starting at 10% and going up to 39.6%. Long-term capital gains (from the sale of

investments held for more than one year) and qualified dividends are currently taxed at

rates ranging from 0% to 25%.

A new tax on net investment income is effective in 2013 under the tax provisions of the

Affordable Care Act. The tax is imposed at a rate of 3.8% on net investment income for certain high income individuals and trusts that are taxable at the maximum income tax

rate.

Corporate income tax. Corporations are subject to tax on their net income at rates of up to

35%. Partnerships are not subject to tax, but their income is included in the tax returns of

the partners. Taxation of partnerships is referred to as pass-through due to the nature of the income and deductions of the business passing through the partnership and being taxed

to its partners.

Payroll taxes. The progressive rates of the individual income tax stand in contrast to payroll

taxes (social security and Medicare taxes). All wage income earned up to a point, adjusted

annually for inflation ($113,700 for the year 2013) is taxed at 7.65% on the employee with an additional 7.65% payment incurred by the employer. The 7.65% employee and

employer payroll tax is comprised of 6.2% social security tax and 1.45% Medicare tax. The

$113,700 annual limitation amount noted above is sometimes called the "Social Security

TAX LAW

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tax wage base amount.” Above the annual limitation amount, only the 1.45% Medicare tax

is imposed on the subsequent earnings. Self-employed people pay the entire 15.3%. Beginning in 2013, there is an additional Medicare tax imposed on certain high wage earners

and self-employed people at a rate 0.9% on the portion of their wage (or self-employment) income that exceeds the statutory threshold. The additional tax is not imposed on

employers.

Estate and gift tax. Estates for those who die during 2013 worth more than $5,250,000 are

taxed at a 40% rate. A gift tax is imposed if you give away more than $5, 250,000 during

your lifetime. Gifts given during your lifetime in excess of $5,250,000 are taxed at 40%.

The $5,250,000 amounts noted above are sometimes called the applicable exclusion

amount. Use of the applicable exclusion amount for gift tax purposes reduces the applicable

exclusion amount available at death. Gifts and transfers at death to grandchildren are

subject to yet another tax known as the generation-skipping transfer tax at a rate of 40%.

Each individual also has a $5,250,000 exclusion from the generation-skipping transfer tax.

All three exclusion amounts are indexed for inflation. The annual exclusion gift amount for

2013 is $14,000. This is the amount that an individual can give to another person before

filing a gift tax return.

Excise taxes. Federal excise taxes are applied to specific items such as motor fuels, tires, telephone usage, tobacco products, and alcoholic beverages. Excise taxes are often, but

not always, allocated to special funds related to the object or activity taxed.

The Role of a Tax Lawyer

Most tax lawyers act as advisors, helping clients structure their business entities and

transactions in ways that minimize taxes. Some tax lawyers focus instead on representing clients in disputes with the local, state or federal tax authorities. Most disputes between

taxpayers and the IRS are resolved either during the audit or in the context of an

administrative appeal within the IRS. Taxpayers whose federal tax disputes are not administratively settled can choose to pursue litigation in one of three courts: U.S. Tax

Court, U.S. Court of Federal Claims, or U.S. District Court.

TEXAS PUBLIC INFORMATION ACT

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Texas Public Information Act

Understanding the Basics

This article is designed to be an easy reference to help reporters navigate through the Texas

Public Information Act. Below are some helpful links to look at if you have questions:

The homepage for the Texas Attorney General website: www.oag.state.tx.us/ PDF version of the 2014 Public Information Act Handbook:

www.oag.state.tx.us/AG_Publications/pdfs/publicinfo_hb.pdf Contact information for the Open Records Administrator:

www.texasattorneygeneral.gov/og/open-government and

www.oag.state.tx.us/open/charges.shtml The Freedom of Information Foundation of Texas provides a free hotline for informal

attorney advice on the TPIA and other FOI issues which may be reached at 800-580-6651.

The Texas Public Information Act (TPIA) guarantees citizens’ right to review and obtain

copies of documents held by governmental and quasi-governmental bodies across the state of Texas, including the Legislature, the Executive branch, and local authorities; however,

the TPIA does not apply to judicial records. There is a separate procedure for seeking access to judicial records.

The TPIA, formerly known as the Open Records Act, is located at chapter 552 of the

Government Code. Requests for public information, also known as “open records requests,” are defined as requests for information that have been “collected, assembled, or

maintained” by a governmental body or for a governmental body if it “owns . . . or has a right of access to” the information. See TEX. GOV’T CODE § 552.002(a). “Governmental body”

is broadly defined in § 552.003(175)(A) of the Government code. The TPIA applies to records regardless of their format, including information that is maintained in paper, tape,

microfilm, video, and electronic data held in a computer memory, as well as other mediums

specified under law. See TEX. GOV’T CODE § 552.002(c).

How to Write the TPIA Request

Any person, including a non-citizen, may ask a governmental body for information. The

governmental body may not question the motives or interests of a person making a request nor the person’s purpose in making the request. TEX. GOV’T CODE § 552.222(b). All requests

must be treated “uniformly without regard to the position or occupation of the requestor, the person on whose behalf the request is made, or the status of the individual as a member

of the media.” TEX. GOV’T CODE ANN. § 552.223. The request does not have to cite a specific law or statute (although it is a good practice to cite the TPIA in the request), nor

does it have to be on a special form. The request should be in writing, either typed or

http://www.oag.state.tx.us/

http://www.oag.state.tx.us/AG_Publications/pdfs/publicinfo_hb.pdf

http://www.texasattorneygeneral.gov/og/open-government

http://www.oag.state.tx.us/open/charges.shtml


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handwritten, and sent by e-mail, facsimile, and/or postal service. The request should be

sent to the officer for public information or the officer’s designee. See TEX. GOV’T CODE § 552.301(c). A practical pointer is to make sure the request includes enough information to

identify the information sought and provides a means to communicate with the reporter (i.e., name, address, telephone number). Additionally, an open records request must be for

information that is in existence at the time of the request.

What the Governmental Body Must Do With the Request

Once a request is filed, the governmental body must “promptly” make the requested

records available for copying or inspecting unless it decides the information should be withheld under the Act. What qualifies as “promptly” depends on the facts surrounding each

request. Although the governmental body must respond to the request no later than 10

business days after its receipt, nothing in the Act prevents a reporter from specifying a shorter deadline. Where the requested records are readily available, a reasonable time for

production may be fewer than 10 business days. If a person in the governmental body thinks the information must be withheld, that person must forward the request to the

Attorney General for an opinion within 10 business days of receiving the request and must provide the reporter with information regarding why the governmental body has asked for

the Attorney General’s decision. TEX. GOV’T CODE § 552.301 (b),(d). The governmental body then has five additional business days to formulate arguments and file copies of the

information for review by the Attorney General. The reporter also may make arguments,

and if the information relates to a third party, the Attorney General may solicit comment from that party as well, although the Act does not require it to do so. The Attorney General

has 45 business days -- and may use an additional 10 business days -- to determine whether the information is open or closed. TEX. GOV’T CODE § 522.306(a). A ruling may take

the form of an open records decision, which is a formal opinion on a novel or problematic legal question and is signed by the Attorney General, or an open records letter ruling, which

is an informal letter ruling based on established law and practice and is signed by assistant attorneys general in the Open Records Division.

If the governmental body fails to make a timely request to the Attorney General, the

information must be disclosed absent compelling reasons to withhold. TEX. GOV’T CODE § 552.302. However, if the governmental body needs clarification regarding the request, the

governmental body can ask the reporter for clarification. If the reporter does not provide clarification within 61 days then the request is considered withdrawn. TEX. GOV’T CODE §

552.222(d).

Both the Attorney General and the reporter can enforce the TPIA, primarily by filing a suit

for a writ of mandamus compelling a governmental body to make information available.

TEX. GOV’T CODE § 552.321. The reporter also can enforce the Act by persuading the local district attorney to file criminal charges. TEX. GOV’T CODE §§ 552.351-552.353. Public

officials are subject to criminal penalties for destroying, mutilating, or altering public

documents, for distributing confidential information, or for failing “with criminal negligence” to provide access to public information. TEX. GOV’T CODE §§ 552.351-552.353.


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Information Generally Required for Disclosure

The TPIA provides for at least 18 categories of information that must be disclosed unless

they are expressly confidential under other law. TEX. GOV’T CODE § 552.022. They are:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a

governmental body, except as provided by § 552.108 (regarding information dealing with the detection, investigation, or prosecution of a crime and information in an internal record

or notation maintained for internal use);

(2) the name, sex, ethnicity, salary, title, and dates of employment of each employee and

officer of a governmental body;

(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body;

(4) the name of each official and the final record of voting on all proceedings in a

governmental body;

(5) all working papers, research material, and information used to estimate the need for or

expenditure of public funds or taxes by a governmental body, on completion of the

estimate;

(6) the name, place of business, and the name of the municipality to which local sales and

use taxes are credited, if any, for the named person, of a person reporting or paying sales

and use taxes under Chapter 151, Tax Code;

(7) a description of an agency’s central and field organizations;

(8) a statement of the general course and method by which an agency’s functions are

channeled and determined, including the nature and requirements of all formal and informal policies and procedures;

(9) a rule of procedure, a description of forms available or the places at which forms may

be obtained, and instructions relating to the scope and content of all papers, reports, or examinations;

(10) a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability

formulated and adopted by an agency;

(11) each amendment, revision, or repeal of information described by Subdivisions (7)-

(10);


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(12) final opinions, including concurring and dissenting opinions, and orders issued in the

adjudication of cases;

(13) a policy statement or interpretation that has been adopted or issued by an agency;

(14) administrative staff manuals and instructions to staff that affect a member of the

public;

(15) information regarded as open to the public under an agency’s policies;

(16) information that is in a bill for attorney’s fees and that is not privileged under the

attorney-client privilege;

(17) information that is also contained in a public court record; and,

(18) a settlement agreement to which a governmental body is a party.

Information Generally Excepted From Disclosure

The TPIA begins with the presumption that every government document is open unless it is confidential under other state law or falls within one of the TPIA’s exceptions. TEX. GOV’T

CODE §§ 552.002(a), 552.006.

The TPIA’s exceptions are listed at TEX. GOV’T CODE§§ 552.102-552.148. They are generally:

Section 552.101—Information confidential by law

Section 552.102—Information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy

Section 552.103—Information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party

Section 552.104—Information relating to competition or bidding

Section 552.107—Information within the attorney-client privilege

Section 552.108—Information that would interfere with the detection, investigation, or prosecution of a crime

Section 552.109—Private communications of an elected office-holder if the disclosure would constitute an invasion of privacy


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Section 552.110—Certain commercial information, including trade secrets and

commercial information that is privileged or confidential by law

Section 552.117—Addresses, telephone numbers, social security numbers and

personal family information of public officials and employees, peace officers, Texas Department of Criminal Justice employees, and certain other law enforcement

personnel.

Section 552.119—Photographs of peace officers unless (1) the officer is under

indictment or charged with an offense; (2) the officer is a party in a fire or police civil service hearing or a case in arbitration; or, (3) the photograph is introduced as

evidence in a judicial proceeding.

Section 552.132— Indentifying information of a crime victim or claimant

Section 552.137—E-mail addresses of government employees

Section 552.138—Information maintained by a family violence shelter center,

trafficking shelter center or sexual assault program

Section 552.145—Texas no-call list

Section 552.148—Certain personal information maintained by a municipality pertaining to a minor

Sections 552.026 and 552.114—Student Records

A governmental body relying on an exception to withhold information has the burden of

establishing that the record falls within the stated exception. In determining whether a record is exempt from disclosure, courts are required to construe the TPIA liberally in favor

of openness.

Charges for Reproducing Public Information

The governmental body can charge the reporter for the reproduction of public information.

TEX. GOV’T CODE § 552.261(a). If the governmental body estimates that the charges will be

over $40.00, the governmental body must provide the reporter with a written, itemized statement of estimated charges before conducting any work on the request. The statement

must provide notice that if the reporter does not respond within 10 business days, the request will be automatically withdrawn, and the statement must explain any available less

expensive ways of viewing the records. TEX. GOV’T CODE § 552.2615(a),(b).

If, after the reporter has agreed to the itemized statement but before the information has

been released, the governmental body determines that the charges exceed the agreed price


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by 20 percent, the governmental body must provide the reporter with an updated statement

of estimated charges. Once again, the reporter must respond within 10 business days. If the governmental body does not provide this updated statement to the reporter, the charges

for the entire request are limited to the original agreed price plus 20 percent. TEX. GOV’T

CODE § 552.2615(c), (d).

The TPIA is an invaluable resource for citizens seeking to peek behind the curtain of

government’s inner-workings. Governmental agencies are statutorily required to produce certain categories of documents. If the information sought does not fall within the specific

list of exemptions, the governmental agencies must promptly produce the information requested.



TORT & INSURANCE PRACTICE

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Tort & Insurance Practice A tort exists when a person or company breaches a duty owed to another. When that breach

causes injury or harm it is actionable. Torts can be intentional such as fraud and misrepresentation or be based on negligence. Torts do not arise from a contractual

relationship and do not require any privacy between the actors. The most common tort is negligence which is a failure to act as a reasonably prudent person would act under the

same or similar circumstances. Tort cases are civil cases and the burden of proof to establish a tort or any civil case is a preponderance of the evidence, as opposed to the “beyond a

reasonable doubt” standard that applies in criminal cases. Torts cases range from cases

involving automobile accidents, construction defects, professional negligence (such as medical, legal or accounting malpractice) and products liability. Products liability is a tort

that does not require proof of negligence and is based on the creation of an unreasonably dangerous product that causes injury. The utility of the product is weighed against the risk

the product poses in order to determine if it is unreasonably dangerous. There is also a class of torts that involve premises liability. This tort requires that the injury be caused by

an unreasonably dangerous condition on real property which is either not corrected or warned about, provided the premises owner had a reasonable opportunity to discover the

condition. Most tort cases involve insurance which covers both the defense costs and any

covered award of damages.

Personal Injury

Plaintiffs who bring a tort claim for personal injuries seek to be compensated by money damages. The damages may include damages for past and future medical expenses, lost

wages, diminished earning capacity in the future, pain and suffering, mental anguish, disfigurement, impairment, death, or other similar categories of harm.

Not all personal injury damages are to the body. A plaintiff may seek damages for libel, slander, defamation, false imprisonment or damages to one’s reputation.

Property Damages

Property damages sometimes fall under the umbrella of a tort claim, and include a wide

spectrum of damages: damages for vehicles involved in accidents; damages for buildings that were not built properly; damages for property that was lost or damaged while in the

custodial care of another; damages for organic crops that were accidentally sprayed with

non-organic insecticide; damages for goods ruined by a neighboring tenant’s flooded bathroom; damages for buildings covered by a painter’s wind-borne spray paint; damages

suffered by an adjoining landowner when the natural flow of surfaces waters is disrupted by new construction, damages from operations that contaminate groundwaters, etc.

Punitive Damages In certain circumstances, a plaintiff may seek additional damages designed to deter the

conduct of the defendant and others in the future. These are called punitive or exemplary

TORT & INSURANCE PRACTICE

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damages. To recover for this category of damages, a plaintiff must meet a higher burden

of proof than the burden required for the underlying tort, and must show more than negligence. In order to recover punitive damages the plaintiff must show that the defendant

acted with fraud, malice, or gross negligence; the evidence must be “clear and convincing;” and a jury must vote unanimously to award punitive damages. Additionally, there is a limit

on the amount of damages that a plaintiff may recover for exemplary damages. The Texas legislature had imposed limits on punitive damages to the greater of: 1) two times the

economic damages, plus non-economic damages not to exceed $750,000, or 2) $200,000. While it may be accurate to state that a jury awarded a plaintiff $10,000,000 in a verdict

against a defendant, if $8,000,000 was for punitive damages, the verdict may be greatly

reduced by the judge in accordance with the statutory limit.

Insurance

Tort claims are generally covered by insurance. There are different types of insurance policies. Most professional liability policies that insure doctors, lawyers, accountants and

other professionals are written as what the industry calls Claims Made policies. This means that the policies will only respond to claims that are made against the insured during the

policy period. These policies are typically referred to as E&O polices which is an acronym

for “errors and omissions”. The other type of policy is generally a commercial general liability policy. These policies are typically written on an occurrence basis meaning the policy

will respond to the claim if the alleged act or omission occurred during the policy period regardless of when it was made against the tortfeasor. Because insurance plays such an

important role in tort cases, there are attorneys who specialize in the interpretation of insurance policies. Just because a person or company has an insurance policy does not

mean that the policy will pay for the tort claim being asserted. Various factors come into play in determining if there is insurance coverage for a claim, including: the amount of

notice given to the insurance company; the location of the tort; the date of the tort; whether

an employee acted in the course and scope of his or her employment; whether the tort was an accident versus an intentional act; and whether the tort was excluded from coverage by

the language of the insurance policy. Some attorneys specialize in helping the defendant establish coverage under a policy, while others specialize in helping an insurance company

determine if coverage is provided for the tort. It is not uncommon for a separate lawsuit to be filed related to the insurance coverage, in addition to the lawsuit involving the tort itself.

What is important to remember is that insurance is a vital part of the tort system as it allows companies and persons to shift the risk of a large damage award away from them

onto the insurance company in exchange for a relatively small premium. However, to keep

premiums low, risks that create tremendous exposure, but which might fall under the coverage of a general liability policy, are subject to policy riders known as exclusions.

Asbestos, pollution claims and cyber liability were all perils that arguably were covered under general liability policies (and litigated), but when renewal policies were issued these

types of perils were excluded by attachments to the policy as the tremendous cost involved in those types of claims would exhaust policy limits as well as possibly the solvency of the

issuing carrier.

Reviewed by Henry Wehrmann, a partner at Farrow-Gillespie & Heath LLP. He can be reached at [email protected].


A CIVIL ACTION DESCRIBED

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A Civil Action Described

The following gives a brief description of the steps that occur in a civil lawsuit.

Civil litigation normally involves the resolution of claims that have arisen between

individuals or entities for injuries or losses that one of the parties has suffered. A civil

lawsuit begins with the filing of a Petition (or a Complaint in Federal Court) by the injured

person or entity, the Plaintiff, against the person or entity which is alleged to have caused

the injury, the Defendant. In the Petition, the Plaintiff sets out the basic facts that give rise

to the cause of action against the Defendant, as well as a description of the injuries or

damages that have been suffered and the relief that is sought.

When the suit is filed, the Clerk randomly assigns the case to one of the civil courts. The

Clerk also prepares the Citation which is to be served upon the Defendant with a copy of

the Petition to explain to the Defendant that he or she has been sued and must file an

answer. Service of the citation on the Defendant is normally handled by either personal

service by a County Constable or a private process server, or by registered or certified mail.

If for some reason, however, service cannot be completed through normal channels, then

a Judge can order that service be accomplished in other manners, such as through

publication of a notice in a newspaper or by placing a copy on the Defendant’s place of

residence.

After the Defendant is served, he or she must file an answer to the Petition, denying the

allegations being made by the Plaintiff and setting forth any defenses that he or she might

have to the allegations being made by the Plaintiff. If the Defendant fails to file an answer

within the time period set out in the citation, then there is a default, and the Plaintiff can

ask the Court to enter a default judgment against the Defendant. In defaulting, the

Defendant is deemed to have admitted all of the allegations in the Plaintiff’s Petition, and

the Plaintiff is only required to establish damages, if they are unliquidated.

Once the Defendant has answered the lawsuit, the parties begin to conduct discovery.

During this discovery period, the parties gather the information and evidence that they will

need to prove their case at trial. The length of time that the parties are given for discovery

usually depends on the type and complexity of the case. Discovery normally consists of

written discovery (written requests for information) and depositions. In written discovery,

parties usually send each other Requests for Disclosure that provide basic information about

the claims of the parties, a description of economic damages claimed by the parties, a list

of person with knowledge of relevant facts, and information about expert witnesses. Written


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discovery also includes Requests for Admissions asking the opposing party to admit certain

facts, Interrogatories or questions that have to be answered, and Requests for Production

that request that the other party produce certain documents and other items for inspection

and/or copying. Depositions, on the other hand, are used to gather sworn testimony from

parties or witnesses. In a deposition, the witness (or deponent) is asked questions by the

attorneys involved in the case, and the answers are recorded by a certified court reporter.

Alternatively, depositions may be videotaped. The transcript or video from a deposition can

be used at trial.

Normally, when discovery has been substantially completed and the parties are better able

to analyze the merits and value of their case, the parties agree to submit their dispute to

some form of alternative dispute resolution procedure (ADR), like mediation. In fact, many

courts order the parties to go to mediation. In mediation, as well as most ADR procedures,

the parties try to settle the case with the assistance of a neutral third party. The mediator

acts as a go-between for the parties, trying to bring the parties closer together so that the

case can settle. If the case does not settle at mediation, it proceeds to trial.

Prior to the trial, the parties may file various motions in an attempt to dispose of the case,

seek further discovery, and seek other orders and relief from the court. Some of these

motions will described below.

The court’s trial docket, including all trial settings, is handled by the court administrator.

Normally, cases are set for trial within 18 months of being filed; however, this amount of

time can vary greatly based on the complexity or size of the case, the availability of

witnesses and other matters. If the parties are not ready when the trial date arrives, they

can ask the court to continue the case and to reset it on the trial docket.

Once the case is called to trial, the parties and their counsel appear in front of the Judge

for a pre-trial conference. At this time, the Judge tries to get a feel from the parties as to

the estimated length of the trial. The Judge will also handle other pre-trial matters at this

hearing, including evidentiary matters (i.e. motions seeking to exclude certain evidence

and/or testimony).

In civil cases, either party to the lawsuit may request a trial by jury; absent such a request,

the judge will decide the facts of the case as well as the law. If either party has requested

a jury trial, the next step is the selection of the jury, which is called voir dire. During voir

dire, each party (or their counsel) is able to ask questions of the jury panel that has been

brought in for the case. The attorneys are attempting to find out if any of the potential

jurors have preexisting opinions or beliefs that might be harmful to their client’s case. If a

juror indicates that he or she does, in fact, have a bias or an opinion which would, in some


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way, prevent he or she from serving as a fair juror, then the Judge can strike that potential

juror “for cause.” After all of the jurors have been questioned, the parties are given time to

make additional strikes (removing potential jurors) called “preemptive strikes” against

jurors which they believe will not rule favorably on their case. While a party can strike a

juror for almost any reason, he cannot strike a potential juror because of race or sex or

religion. After all of the strikes have been made, the Judge selects the first 12 (or six if the

case is in a County Court at Law) jurors to serve on the panel.

Each party is then given a chance to give an opening statement, setting out their version

of the case and what they think the evidence will ultimately show. In a civil trial, the burden

of proof is on the Plaintiff who must prove the case to the jury by a preponderance of the

evidence. In other words, the Plaintiff must present sufficient evidence to prove that it is

more likely than not that the events happened in the way that they are presented. This is

in stark difference to the heavy burden that the State carries in a criminal trial—beyond a

reasonable doubt. Because the Plaintiff has the burden of proof, he or she is allowed to

present the case first, beginning with opening statements, then in the presentation of

evidence and finally the closing argument.

After the opening statements, the Plaintiff puts on his or her case through the presentation

of witnesses and the introduction of documents and exhibits. The Defendant is able to cross-

examine each of the Plaintiff’s witnesses during the Plaintiff’s case and, after the Plaintiff

rests, able to put on his own defense by calling additional witnesses and by introducing

additional exhibits. After the Defendant completes his case, then the Plaintiff can put on

further evidence in rebuttal to the Defendant’s case.

When both sides have finished presenting all of their evidence to the jury, the Judge then

excuses the jury so that the Judge and the parties can prepare the jury charge. The jury

charge contains the questions that the jury will be asked to answer along with the definitions

and instructions that are necessary to help the jury answer such questions. The charge is

read to the jury by the Judge prior to closing arguments and is to be read again by the

presiding juror once the jury retires to deliberate.

As soon as the jury charge is read to the jury, each of the parties is given a chance to give

a Closing Argument, summarizing the evidence that was presented and how such evidence

supports the parties’ claims. After the closing arguments, the jury is sent to the jury room

to deliberate and to answer the questions contained in the charge.

The jury’s answers to the questions are then read to the parties and, if there are no

objections to the answers, then the jury is excused. The Judge then uses the answers to

prepare the final judgment that will be entered in the case.


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After the judgment is entered, various post-judgment motions may be filed, the most

common of which is a Motion for New Trial, challenging the weight of the evidence. If a case

is dismissed for want of prosecution, that party may file a verified (sworn) Motion to

Reinstate the Case. Both Motions for New Trial and Motions to Reinstate the Case must be

filed within 30 days of the signing of the judgment.

Either side may appeal the judgment if the Judge committed an error in the trial court. The

first level of appeal from any Dallas County Civil District Court or any Dallas County Court

at Law, is to the Fifth District Court of Appeals in Dallas. Appellate filing deadlines for the

original notice of appeal have to be followed strictly or else the appeals court cannot hear

the appeal. Parties must follow all rules for timely filing and briefing as outlined in the Texas

Rules of Appellate Procedure.

Important Rules and Deadlines

In a civil lawsuit rules and deadlines are important. Also, all documents filed with the court

must be in the English language. Pro se litigants must follow the same rules as parties who

are represented by attorneys.

Applicable Rules

The Texas Rules of Civil Procedure govern all civil cases in Texas state courts. In general,

the Texas Rules of Civil Procedure set forth rules regarding pleadings, discovery, and

deadlines. In civil cases filed in Dallas County, these rules are supplemented by the Dallas

County Civil Court Rules. For more information, consult the "Resources and References" list

described below.

Answer Deadline

A person who has been sued, the Defendant, must answer the lawsuit by filing an Original

Answer by 10:00 a.m. on the next Monday, following the expiration of 20 days from the

date the Plaintiff's Original Petition was served. A person sued in a Justice of the Peace

Court must file an Original Answer by 10:00 a.m. on the next Monday, following the

expiration of 10 days from the date the Petition was served. If the Defendant fails to answer

the lawsuit timely, after proper service, a Default Judgment may be taken against

Defendant, which is just as enforceable against Defendant and Defendant’s property as any

other judgment.


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Verified Pleadings

Some pleadings must be verified before being filed in the lawsuit. Verification is swearing,

before a notary, that the contents of the pleading or particular parts of the pleading are

true and correct. Failing to verify the particular types of claims that must be verified in a

pleading may result in elimination of that claim completely. Please consult Texas Rule of

Civil Procedure 93.

Discovery Deadlines

A party to a lawsuit must respond to discovery requests within 30 days of receiving

discovery requests, if they were hand-delivered to the party. If the requests were mailed

or faxed to the party, the deadline is 33 days from the date the discovery was mailed or

faxed, i.e., the postmark date or fax date or certificate of service (see the "Adding Three

Days" subsection below). The response can be mailed on the date of the deadline (see the

"Service Mailbox Rule" subsection below service). If discovery was served with the Citation

and Original Petition, then the person must respond within 50 days. Failure to respond to

the discovery within the stated deadlines can result in objections to improper requests being

waived and sanctions being imposed (see "Sanctions" subsection below).

Summary Judgment Deadlines

Throughout the litigation process, parties sometimes can file motions that will end the case

at the trial court level. These motions are called dispositive motions and include motions

to dismiss, pleas to the jurisdiction, and motions for summary judgment. Summary

judgments are extremely complicated and can make or break a case. When a Motion for

Summary Judgment is filed, the other party should file a response, even though a response

is not required because the motion must stand or fall based on the evidence presented with

it; no oral hearing or record is required for the same reason, though hearings are

customary. If a hearing is held, no witnesses will be allowed to testify in person. The

testimony occurs in affidavit form which is filed with the motion.. A responding party is

entitled to 21 days notice prior to the decision or hearing on the matter (counting backwards

from the day of the hearing, including the day of the hearing). Three days are added to this

deadline, if the motion and notice are mailed or faxed. The response is due seven (7) days

prior to the hearing (counting backwards from the day of the hearing, including the day of

the hearing). It is considered timely filed if mailed on the due date, even if received inside

of seven days prior to the hearing, per the Filing Mail Box Rule. The moving or filing party

may file a reply to the response three (3) days prior to the hearing. At the hearing, the

moving or filing party has the burden of proof based only upon the written evidence

presented with the motion for summary judgment. If a party fails to file a response prior


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to the above deadline, the person cannot use evidence to argue against the motion. If a

party files a response timely, he or she may argue only the counter-evidence attached to

the response and the evidence attached to the motion. If the motion is sufficient to support

a judgment, failing to file a response can result in dismissal of the case or a judgment in

the case.

Final Judgment Deadline

A judgment becomes a Final Judgment 30 days after it is signed, unless certain post-trial

motions are filed. The court loses its power to rule on the case or the judgment once this

deadline passes. A party must comment on or complain about the judgment (its entry, form

or substance) within this 30-day time period or the action must be taken within this 30-day

time period in order to preserve the right to appeal. If certain steps are not followed during

this 30-day time period, an appeal usually cannot be taken and any error by the trial court

is waived. Please consult the Texas Rules of Appellate Procedure for more information

regarding appeals.

Dismissal for Want of Prosecution (DWOP)

The court has the power to rid its docket of cases that are not being pursued earnestly. The

court may issue a Notice of Dismissal for Want of Prosecution (a "DWOP") and allow the

party or parties one last opportunity to appear and show the court that due diligence has

been or is being taken in relation to the lawsuit sufficient to allow it to continue on the

court's docket. If the court takes action on the DWOP, it will dismiss the case without

prejudice, which means that the case can be re-filed by filing a new petition unless the

statute of limitations has expired.

Statute of Limitations

A lawsuit must be filed within the Statute of Limitations period applicable to the particular

cause(s) of action. Generally, the Statute of Limitations is two years or four years from the

accrual of the cause of action. If the lawsuit is filed after the Statute of Limitations has

passed, it is forever barred from being pursued. Depending on the facts at issue, a party

may be able to assert an exception to the Statute of Limitations, such as the "discovery

rule" or fraudulent concealment. Please consult Chapter 16 of the Texas Civil Practice and

Remedies Code regarding the Statute of Limitations.

Filing Mailbox Rule

There are two mailbox rules: one for service and one for filing. The service mailbox rule is

explained below. The Filing Mail Box Rule provides that when a document is placed into a


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properly addressed, postage paid package and sent by first class United States Mail, it is

considered received by the court on the date it is postmarked as long as it is received by

the clerk within 10 days. Remember, the document must be sent through the United States

Postal Service to take advantage of the mailbox rule. A document sent by any other delivery

service (i.e. UPS or Federal Express) will be considered filed when it is received by the

Court, not when it was sent.

Service Mailbox Rule

The Service Mail Box Rule provides that a document sent to another party by mail is

considered served on the day it is mailed. The document must be sent by certified or

registered mail, properly addressed to the other party at that party's last known address,

mailed on or before the deadline, and include a Certificate of Service explaining how the

document was sent. As with the Filing Mailbox Rule, the document must be sent through

the United State Postal Service.

Adding Three Days to a Deadline

When a document is served by mail or fax and requires a response by a certain deadline,

three days are added to the normal deadline, e.g., a 30-day deadline becomes 33-day

deadline.

Computation of Deadlines

When computing deadlines, the date of service is not included. Begin counting the deadline

on the day following receipt and the due date is included in the calculation, unless the due

date falls on a Saturday, Sunday or legal holiday, in which case the due date is the next

business day after the weekend or holiday.

Sanctions

Failure to comply with the court's rules, procedures, and deadlines can subject the parties

to sanctions. Sanctions range from a fine, to restriction of evidence, to dismissal of the

case, to jail time. Sanctions can have devastating consequences.

Injunctive Relief and Motions for Contempt

One kind of relief that may be sought in civil courts is injunctive relief; it may be the only

relief sought or accompany other requests. An injunction is a court order, requiring a party

to take an action or stop taking an action. There are state statutes that authorize

injunctions in certain circumstances and involving certain parties. If a statute does not


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apply, parties may obtain injunctions if they can satisfy four requirements. The pleading

requirements for this kind of relief can be complicated, and a party may fail to obtain this

relief based on failure to meet the pleading requirements. There are three types of

injunctions: 1) a temporary restraining order; 2) a temporary injunction; and 3) a

permanent injunction. A temporary restraining order is an emergency order that a court

may issue the day that a lawsuit is filed and without notice to the other party. Because of

the emergency nature of this order, the order usually only lasts fourteen days when the

court may hold a temporary injunction hearing after notice to all parties. Temporary

injunction hearings may include evidence and testimony by both parties, and if issued, may

last until the final judgment or permanent injunction is entered in the case. An injunction

issued against a party should be taken seriously, as violation of an injunction may result in

the court holding the party in contempt of court. Ordinarily, a contempt judgment is entered

only after a motion by a party, notice, and hearing. In the contempt judgment, a court

may fine a person for violation of the court order or jail them.

ROLES OF THE COURT

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Roles of the Court

The Role of the Judge - Each state court has an elected judge that presides over that

court. In our system, the judge is required to be impartial and to base decisions on the law

and evidence that is presented in the courtroom. For this reason, the judge will not speak

with parties outside of the courtroom and cannot help parties with their case. Parties should

never attempt to contact the judge directly in person or on the telephone. If a party writes

to the judge, a copy should be sent to all other parties; the judge may not respond to the

letter.

The Role of the Court Coordinator - This person works for the judge and handles the

day-to-day business of the court. Because the coordinator is usually well-informed

regarding the policies and procedures of each individual judge, you may wish to contact

this person if you have questions about court appearances and similar matters. But the

coordinator is not a lawyer and, cannot give you legal advice.

The Role of the Court Clerk - The clerks assigned to each court do not work directly for

the judge, but rather, for the county or district clerk's office. They process all paperwork

and collect all fees and costs for the court at the filing desk for the district or county clerk.

While the clerks are there to help the public, they cannot tell persons how to draft pleadings

or what deadlines apply; they cannot make free copies for you; and most importantly, they

are not lawyers and cannot advise you on legal matters.

The Role of the Court Bailiff -The bailiff is responsible for ensuring safety in the

courtroom. The bailiff may also call the docket of the court and inform the judge whether

all parties have appeared in court on the proper day and time.

The Role of the Court Reporter - The court reporter, when present, creates a written

transcript of what is said during a trial, hearing, or deposition. You may receive a copy of

the transcript by paying a transcript fee to the court. If a person is financially unable to pay

the transcript fee, he or she may still receive a copy by filing an affidavit of inability that

explains the situation.

The Role of the Opponent's Lawyer - This lawyer represents a party’s opponent, and

cannot give legal advice to any person in the litigation other than the attorney’s client.

Every item sent to the court and filed with the court must be sent to every party in the

litigation or that party’s attorney.

ROLES OF THE COURT

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What to File - All pleadings and other requests for action by the court must be filed with

the court clerk. Parties generally should not file discovery documents or everyday

correspondence with the court. A copy of every paper a party files with the court must be

sent to all parties in the case. In fact, every paper a party files must have at the end a

Certificate of Service, which is a signed statement that the party has actually sent a copy

of that paper to all parties on a specified date.

Filing Fees - Parties will need to pay a fee in order to file a lawsuit and serve notice of the

lawsuit on the defendant. But for most other papers that are filed with the court, the party

will not be required to pay any fees. For more information about filing fees, you should

check the Dallas County District Clerk's website at www.dallascounty.org/html/citizen-

serv/district-clerk/fees-civil.html. If a person is financially unable to pay the filing fee, the

party may still file his pleading, motion, or other paper with the court by attaching an

affidavit that explains why he cannot pay the fee.

Receiving Information About a Case - Parties will receive information about the case by

mail, fax, and by telephone from both the court and the Opponent's Lawyers. Therefore, a

party should be sure that all of them have the party’s current address and telephone number

on file at all times. A party should also always return all telephone calls and accept delivery

of all mail regarding the case. If a party is going to be out of town for an extended period,

the party should notify the court coordinator and all parties with a "vacation letter" listing

your dates of unavailability. If you are not a party to the case, for a nominal fee you can

obtain copies of filings in a case from the Records Department of the court.

How Can a Missed Deadline Affect a Case? - Throughout a case, there will be deadlines.

There are deadlines, for example, for answering the Petition, for requesting discovery, for

responding to discovery, and for responding to Summary Judgment motions. Deadlines

cannot be ignored and should not be missed. A missed deadline can result in the dismissal

of the case as the Plaintiff or a judgment against the Defendant. To ensure that a party

does not miss deadlines, the party should carefully review all notices received regarding

the case. Some courts issue scheduling orders, which will list many of the deadlines in the

case. Parties should always appear in court whenever notified to do so. When a party

receives pleadings, motions, and discovery requests, the party should check the Rules of

Civil Procedure for the court and the local rules that apply to the court. These documents

are generally available at the Dallas County Law Library or on the Internet.

Proper Attire in Court - You should dress as though you were going to a job interview.

Men should wear pants and a shirt with a collar. A suit, jacket or tie is always appropriate.

Women should wear a dress, skirt, or pants that are not too tight, too short or low cut. It

ROLES OF THE COURT

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is never proper to wear shorts, t-shirts or sandals. Excessive make-up or jewelry also should

not be worn.

Courtroom Behavior - All persons are expected to conduct themselves with civility,

decorum and respect toward others. Before appearing in court for the first time, a party

should read the Rules of Decorum and the Texas Lawyer's Creed, all of which may be found

on the Dallas County District Court's website. In the courtroom, it is never proper to wear

a hat, read a newspaper, eat, or chew gum. When speaking to the judge in court, you

should speak clearly, politely, and loud enough to be heard. You should never interrupt the

judge and if the judge asks you a question, your answer should end with "Sir," "Ma'am," or

"Your honor." By contrast, responses such as "Huh?" and "I dunno" are never appropriate.

If the court reporter is making a transcript of any proceeding, all answers must be in words,

not just "Uh-huh" or a nodding of the head.

Children and Court - While it may be helpful to have family members or friends present

for court appearances, it is seldom, if ever, beneficial to have small children present. Keep

in mind that children can be distracting to you, the judge, and other parties in the

courtroom.

A CRIMINAL CASE DESCRIBED

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A Criminal Case Described

A Criminal case begins long before it is filed against a defendant. First, a complainant,

victim or witness calls the police to report an offense, or the police make an arrest upon

viewing a crime. A police report is generated and reviewed by an officer's supervisors. If

the offense is a violation of the law, then the report is forwarded to the DA's office. If not,

it is kept in the police department's computer base, but no official action is taken.

If the offense is a misdemeanor, then the police report is sent to the DA's office intake

division. This division is run by assistant DA's, and they determine if the offense warrants

an information. An information is the misdemeanor version of an indictment. With

misdemeanors, there is no grand jury. The intake attorneys determine if there is an offense

(not whether there is enough evidence to prove it, just whether there is an offense). If an

offense was committed, then the case is filed with the DA's office and an information is

created. The information is the instrument that informs the defendant of the crime with

which he has been charged.

From there, the defendant gets an attorney and moves through the court system. If he/she

cannot afford an attorney, then the court will appoint one or the public defender’s office will

represent him/her. A defendant is only permitted to represent himself pro se if he chooses

to and formally requests it from the judge. Even if he goes pro se, a judge will often appoint

an attorney for the defendant to consult with.

Once an attorney is obtained, the attorney appears on behalf of the defendant and meets

with the assistant district attorney assigned to the case or the court. These appearances

(called announcements) are scheduled by the clerk's office; however, all trials and other

hearings are set by the court coordinator (equivalent of the court administrator in a civil

setting). If a plea bargain (essentially a settlement between the State and the defendant)

cannot be reached, then the case is set for trial. Both the State and the defendant must

waive a jury to proceed to a bench trial.

If the offense is a felony, then the police report is forwarded to the Grand Jury division of

the DA's office. That division is also manned by assistant DA’s, and they determine if there

is not only an offense, but whether there is evidence to prove each element of the offense.

If not, then the grand jury division sends the case back to the police department; and they

either investigate further and send it back to the DA's office, or they shelve the case.

If there is sufficient evidence of the offense, then the case is presented to the grand jury.

The State presents the case and may call witnesses. The defendant may also testify, along

A CRIMINAL CASE DESCRIBED

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with any defense witnesses. Often times, the assistant DA reads the police report narrative

into the record, and the grand jury votes to indict or not. There are 12 people on the grand

jury.

If there is no indictment, then the defendant is released from the charges, but they can be

brought again if more evidence is discovered.

If there is an indictment, the procedure is the same as with the misdemeanors. Either a

plea bargain is reached or the case goes to trial.

If a plea bargain is reached, the defendant pleads guilty and is sentenced by the judge. If

a guilty plea is agreed upon but the punishment is not, then the defendant can plead guilty

and allow the punishment to be set by the judge (called “going open for punishment”) or

by a jury (which is called a slow plea). When the defendant goes open for punishment to

either the judge or jury, both sides may present evidence and argument just as if it was a

trial on whether or not the defendant was guilty.

If no plea bargain is reached, then the case is put on the trial docket. If the defendant is in

jail (has not bonded out) then the trial will be within 3-6 months depending on the court.

If the defendant is out on bond, then the trial could take up to a year to be heard.

The criminal trial is, in many respects, similar to a civil trial. After the pre-trial matters

concerning the evidence are ruled on by the Court, a jury is selected. The State is then

required to put on its case, beginning with an opening statement. The defendant can also

make an opening statement at the beginning of trial or can wait until after the State rests.

Once the State rests, the defendant can, if he desires, put on his own case; however, the

defendant is never required to testify on his own behalf. If there are no rebuttal witnesses,

then the case goes to the jury. The State must prove the defendant’s guilt beyond a

reasonable doubt, which is a much tougher standard than the standard in a civil case which

is “by a preponderance of the evidence.”

If the jury finds the defendant guilty, then the punishment or sentencing phase begins.

Sentencing can be determined by either the judge or the same jury that heard the guilt

portion of the trial. In either case, the State and the defendant are both allowed to put on

additional evidence that they would like to be considered by the judge or jury in setting the

punishment. If the defendant is sentenced to serve jail time, his bond is immediately

revoked and he is placed into the custody of the court for transfer to a jail or prison facility.

If the defendant is given probation, then the defendant is released.

CRIMINAL DISPOSITION CODES

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Criminal Disposition Codes

Code Description

BORD Bill of review denied

BORG Bill of review granted

BTCP Boot Camp

CHOV Change of venue

CRTA Court of Record – Affirmed

CRTC Court of Record – This method is used to signify a court of record case

CTRB Court of Record – Reform and correct

CTRD Court of Record – Dismissed

CTRN Court of Record – Reversed and remanded

CTRW Court of record – Withdrawn

DISM Charge dismissed

GJRM Grand Jury reduces to Misdemeanor

HUNG Jury hung on verdict

INN Plea of not guilty, found innocent of charge

INST Instructed verdict, found innocent of charge

JCJG Plea of not guilty, found guilty by the judge and sentenced by the court

JCJP Plea of not guilty, found guilty by the jury and sentenced by the jury

JGMT Judgment (MD court only)

JGSA Judgment set aside


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JVGR Defendant found to stand trial as an adult. – FJ case transferred to Grand Jury

JVJV Juvenile case returned to Juvenile Court

JVTR Defendant found to be a Juvenile by Judge

MISC Felony case transferred to a County Criminal Court

MISD Conviction of misdemeanor charge (non-reduction)

MIST Mistrial

NACT No action taken by Grand Jury

NAJG Non-Adjudication of guilt (Open plea)

NAOG Non-Adjudication of guilt (Agreed plea)

NBIL No Bill by Grand Jury

NFOG No finding of guilt (dismissal type)

NFWA Plea of not guilty, found innocent of charge because no fact witness appearing for

probation

ODLA Occupational Drivers License – Driver's License amended

ODLD Occupational Drivers License – Driver's License dismissed

ODLG Occupational Drivers License – Driver's License granted

PGBC Agreed plea of guilty before the court

PGBJ Open plea of guilty before the jury

PGFR Agreed plea of guilty before the court – Felony reduced to Misdemeanor

PGJG Open plea of guilty before the court

PLPR Placed on probation

PRCS Probation reduced and case set aside


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PROC Procedendo

QUAS Quashed

REDI Reduced and dismissed

REVC Revocation motion withdrawn and probation continued or amended

REVD Revocation motion denied

REVK Probation revoked

REVW Revocation motion withdrawn and probation discharged

RIGJ Returned to the Grand Jury

ROCW Request of complaining witness

RVRD Probation revoked sentence reduced

FREQUENTLY ASKED QUESTIONS

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Frequently Asked Questions

Q. How do I find out if a case is set for trial or hearing?

A. In civil cases, including family, contact that particular court’s coordinator for trial settings

and the deputy clerk assigned to that court for hearing settings. In criminal courts, the

coordinator handles both.

Q. How do I get statistical information about cases?

A. Contact the County Clerk’s office for case statistics in county courts. Contact the District

Clerk for case statistics in district court. You can also contact the Office of Court

Administration in Austin at www.courts.state.tx.us.

Q. How can I find out if a verdict has been returned in a case?

A. Contact the individual court.

Q. How can I find filling associated with a case on-line?

A. Enter the case number at http://courtecom.dallascounty.org/pav/. To find the case

number, go to http://courts.dallascounty.org/default.aspx where you can search by party

or attorney.

Q. What are the differences among the various types of courts in Dallas County?

A. Some counties have one court that hears all types of cases. Because Dallas is so large,

its trial courts are broken out by subject matter as follows:

Civil District Courts handle any non-family civil matters exceeding $500 in

controversy such as cases involving personal injuries, commercial matters,

consumer disputes, debts and declaratory judgments.

Family District Courts handle divorces, family-related protective orders,

adoptions, name changes, child support, and child custody issues.

Criminal District Courts hear felony criminal cases, including capital murder

cases.

http://courtecom.dallascounty.org/pav/

http://courts.dallascounty.org/default.aspx

FREQUENTLY ASKED QUESTIONS

Page 91

Juvenile District Courts handle matters involving juveniles such Child Protective

Services cases for parental termination and delinquent cases against juveniles.

County Courts At Law are authorized to hear most of the same matters as the

civil district courts and also decide appeals from the justice of the peace court. In

some counties, county courts at law have jurisdictional limits (i.e., they cannot hear

cases above a certain amount in controversy), but in Dallas County, they do not.

County Criminal Courts handle Class A and B misdemeanor cases, including DWIs

and misdemeanor family violence cases; one county criminal court also hears Class

C misdemeanors.

Probate Courts hear cases involving estates of deceased persons as well as

guardianships of persons declared incapacitated and trust matters. Probate courts

are authorized to hear lawsuits involving probate estates, so regular civil trials can

be conducted there.

TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT

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Texas Disciplinary Rules of Professional Conduct

(Excerpts from the Tex. Disciplinary R. Prof. Conduct, (1989) reprinted in Tex. Govt Code

Ann., tit. 2, subtit.G, app. (Vernon Supp. 1995)(State Bar Rules art X [[section]]9))

III ADVOCATE

3.04 Fairness in Adjudicatory Proceedings

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute

unlawfully alter, destroy or conceal a document or other material that a competent lawyer

would believe has potential or actual evidentiary value; or counsel or assist another person

to do any such act.

(c) except as stated in paragraph (d), in representing a client before a tribunal:

(1) habitually violate an established rule of procedure or of evidence;

(d) knowingly disobey, or advise the client to disobey, an obligation under the standing

rules of or a ruling by a tribunal except for an open refusal based either on an assertion

that no valid obligation exists or on the client’s willingness to accept any sanctions arising

from such disobedience.

Comment:

1. The procedure of the adversary system contemplates that the evidence in a case is to

be marshalled competitively by the contending parties. Fair competition in the adversary

system is secured by prohibitions against destruction or concealment of evidence,

improperly influencing witnesses, obstructive tactics in discovery procedures, and the like.

3. Paragraph (c)(l) subjects a lawyer to discipline only for habitual abuses of procedural or

evidentiary rules, including those relating to the discovery process. That position was

adopted in order to employ the superior ability of the presiding tribunal to assess the merits

of such disputes and to avoid inappropriate resort to disciplinary proceedings as a means

of furthering tactical litigation objectives. A lawyer in good conscience should not engage

in even a single intentional violation of those rules, however, and a lawyer may be subject

to judicial sanctions for doing so.


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6. Paragraph (d) prohibits the practice of a lawyer not disclosing a client’s actual or intended

noncompliance with a standing rule or particular ruling of an adjudicatory body or official

to other concerned entities. It provides instead that a lawyer must openly acknowledge the

client’s noncompliance.

7. Paragraph (d) also prohibits a lawyer from disobeying, or advising a client to disobey,

any such obligations unless either of two circumstances exists. The first is the lawyer’s open

refusal based on an assertion that no valid obligation exists. In order to assure due regard

for formal rulings and standing rules of practice or procedure, the lawyer’s assertion in this

regard should be based on a reasonable belief. The second circumstance is that a lawyer

may acquiesce in a client’s position that the sanctions arising from noncompliance are

preferable to the costs of compliance. This situation can arise in criminal cases, for example,

where the court orders disclosure of the identity of an informant to the defendant and the

government decides that it would prefer to allow the case to be dismissed rather than to

make that disclosure. A lawyer should consult with a client about the likely consequences

of any such act of disobedience should the client appear to be inclined to pursue that course;

but the final decision in that regard rests with the client.

3.07 Trial Publicity

(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement

that a reasonable person would expect to be disseminated by means of public

communication if the lawyer knows or reasonably should know that it will have a substantial

likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel

or assist another person to make such a statement.

(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases

if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type

referred to in that paragraph when the statement refers to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal

investigation or witness; or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a

plea of guilty to the offense; the existence or contents of any confession, admission, or

statement given by a defendant or suspect; or that person’s refusal or failure to make a

statement;


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(3) the performance, refusal to perform, or results of any examination or test; the refusal

or failure of a person to allow or submit to an examination or test; or the identity or nature

of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or

proceeding that could result in incarceration; or

(5) information the lawyer knows or reasonably should know is likely to be inadmissible as

evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial

trial.

(c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement

of the type referred to in that paragraph when the lawyer merely states:

(1) the general nature of the claim or defense;

(2) the information contained in a public record;

(3) that an investigation of the matter is in progress, including the general scope of the

investigation, the offense, claim or defense involved;

(4) except when prohibited by law, the identity of the persons involved in the matter;

(5) the scheduling or result of any step in litigation;

(6) a request for assistance in obtaining evidence, and information necessary thereto;

(7) a warning of danger concerning the behavior of a person involved, when there is a

reason to believe that there exists the likelihood of substantial harm to an individual or to

the public interest; and

(8) if a criminal case:

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension

of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the

investigation.


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Comment:

1. Paragraph (a) is premised on the idea that preserving the right to a fair trial necessarily

entails some curtailment of the information that may be disseminated about a party prior

to trial. This is particularly so where trial by jury or lay judge is involved. If there were no

such limits, the results would be the practical nullification of the protective effect of the

rules of forensic decorum and the exclusionary rules of evidence. Thus, paragraph (a)

provides that in the course of representing a client, a lawyer’s right to free speech is

subordinate to the constitutional requirements of a fair trial. On the other hand, there are

vital social interests served by the free dissemination of information about events having

legal consequences and about legal proceedings themselves. The public has a right to know

about threats to its safety and measures aimed at assuring its security. It also has a

legitimate interest in the conduct of judicial proceedings, particularly in matters of general

public concern. Furthermore, the subject matter of legal proceedings is often of direct

significance in debate and deliberation over questions of public policy.

2. Because no body of rules can simultaneously satisfy all interests of fair trial and all those

of free expression, some balancing of those interests is required. It is difficult to strike that

balance. The formula embodied in this Rule, prohibiting those extrajudicial statements that

the lawyer knows or reasonably should know have a reasonable likelihood of materially

prejudicing an adjudicatory proceeding, is intended to incorporate the degree of concern

for the first amendment rights of lawyers, listeners, and the media necessary to pass

constitutional muster. The obligations imposed upon a lawyer by this Rule are subordinate

to those rights. If a particular statement would be inappropriate for a lawyer to make,

however, the lawyer is as readily subject to discipline for counseling or assisting another

person to make it as he or she would be for doing so directly. See paragraph (a).

3. The existence of material prejudice normally depends on the circumstances in which a

particular statement is made. For example, an otherwise objectionable statement may be

excusable if reasonably calculated to counter the unfair prejudicial effect of another public

statement. Applicable constitutional principles require that the disciplinary standard in this

area retain the flexibility needed to take such unique considerations into account.

4. Although they are not standards of discipline, paragraphs (b) and (c) seek to give some

guidance concerning what types of statements are or are not apt to violate paragraph (a).

Paragraph (b) sets forth conditions under which statements of the types listed in

subparagraphs (b)(1) through (5) would likely violate paragraph (a) in the absence of

exceptional extenuating circumstances. Paragraph (c) on the other hand, describes

statements that are unlikely to violate paragraph (a) in the absence of exceptional


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aggravating circumstances. Neither paragraph (b) nor paragraph (c) is an exhaustive

listing.

5. Special rules of confidentiality may validly govern proceedings in juvenile, domestic

relations and mental disability proceedings, and perhaps other types of litigation. Rule

3.04(c)(1) and (d) govern a lawyer’s duty with respect to such Rules. Frequently, a lawyer’s

obligations to the client under Rule 1.05 also will prevent the disclosure of confidential

information.

LEGAL DEFINITIONS

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Legal Definitions AFFIDAVIT: A written statement that is made under oath.

ALTERNATIVE DISPUTE RESOLUTION: Methods for resolving problems without going to

court, including arbitration and mediation.

ANSWER: In a civil case, the defendant's written response to the plaintiff's complaint/petition. It must be filed within a specified period of time, and it either admits to

or (more typically) denies the factual or legal basis for liability.

APPEAL: A request to a supervisory court, which is usually composed of a panel of judges,

to overturn the legal ruling of a lower court.

ARBITRATION: A method of alternative dispute resolution in which the disputing parties agree to try the case to an impartial arbitrator(s). Arbitration may be binding or non-

binding, but is usually binding.

ARRAIGNMENT: The initial appearance before a judge in a criminal case.

ASSIGNMENT: The transfer of legal rights, such as the time left on a lease, from one

person to another.

BAIL: The money a defendant pays as a guarantee that he or she will show up in court at a later date. For most serious crimes, a judge sets bail during the arraignment.

BANKRUPTCY: Insolvency; a process governed by federal law to help when people or

companies cannot or will not pay their debts.

BENCH TRIAL: Also called non-jury trial. A trial held before a judge and without a jury.

The judge makes rulings on both fact and law.

BEYOND A REASONABLE DOUBT: The highest level of proof required to win a case. This is necessary to get a guilty verdict in criminal cases.

BRIEF: A written document that outlines a party's legal arguments in a case.

BOND: In a criminal matter, the amount of money the court requires the defendant or his family to pay in order to assure his appearance for trial.

BIFURCATION: The process of severing a civil trial into a separate liability phase, then

depending on the outcome, a damages phase. This is done to alleviate confusing issues to a jury. Criminal trials have a guilt/innocence phase then a punishment phase.

LEGAL DEFINITIONS

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BURDEN OF PROOF: The duty of a party in a lawsuit to persuade the judge or the jury

that enough facts exist to prove the allegations of the case. The burden of proof standards are beyond a reasonable doubt, clear and convincing, and preponderance of the evidence.

CASE LAW: Also known as common law or judicial opinions. The law created by judges

when deciding individual disputes or cases. Judicial interpretation of statutes and existing common law as it applies to the specific facts of the case ruled on. General opinions are

issued by appellate courts in both state and federal levels.

CHANGE OF VENUE: A change in the location of a trial, usually granted to avoid prejudice

against one of the parties due to things such as pre-trial publicity.

CIRCUMSTANTIAL EVIDENCE: Indirect evidence that implies something occurred but does not directly prove it. If a man accused of embezzling money from his company had

made several big-ticket purchases in cash around the time of the alleged embezzlement, the purchases would be circumstantial evidence that he had stolen the money.

CLASS ACTION SUIT: A lawsuit in which one or more parties file a complaint on behalf of

themselves and all other people who are "similarly situated" (suffering from the same

problem). Often used when a large number of people have comparable claims.

CLEAR AND CONVINCING EVIDENCE: The level of proof sometimes required in a civil case for the plaintiff to prevail. The judge or jury must be persuaded that it is highly

probable that the claim is true. It is more than a preponderance of the evidence but is less than beyond a reasonable doubt.

CODICIL: A supplement to a will.

COLLECTIVE BARGAINING AGREEMENT: Agreement between a union and management which governs issues such as pay and grievance resolution. Almost always calls for

arbitration instead of court.

COMMON LAW: The law created by judges when deciding individual disputes or cases.

COMMON-LAW MARRIAGE: In some states, a couple is considered married if they meet certain requirements, such as living together as husband and wife for a specific length of

time. Such a couple has all the rights and obligations of a traditionally married couple.

COMMUNITY PROPERTY: Refers to the system for dividing the couple's property in which

everything a husband and wife acquire after they are married is owned equally (fifty-fifty).

COMPLAINT/PETITION: In a civil action, the document that initiates a lawsuit. The complaint outlines the alleged facts of the case and the basis for which a legal remedy is

sought. In a criminal action, a complaint is the preliminary charge filed by the complaining party, usually with the police or a court. In Texas, state civil court the complaint is called a

petition.

LEGAL DEFINITIONS

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CONCURRENT SENTENCES: Criminal sentences that can be served at the same time

rather than one after the other.

CONFLICT OF INTEREST: Refers to a situation when someone, such as a lawyer or public official, has competing professional or personal obligations or personal or financial interests

that would make it difficult for him to fulfill his duties fairly.

CONSECUTIVE SENTENCES: Criminal sentences that must be served one after the other rather than at the same time.

CONTEMPT OF COURT: An action that interferes with a judge's ability to administer justice or that insults the dignity of the court. Disrespectful comments to the judge or a failure to

heed a judge's orders could be considered contempt of court. A person found in contempt of court can face financial sanctions and, in some cases, jail time.

CONTRIBUTORY NEGLIGENCE: This is a defense to negligence claims which state that

the claimant (the person bringing the claim) contributed to the harm caused. This can prevent or reduce a party's ability to recover his or her damages. Not all states follow this

system.

COURT OF CRIMINAL APPEALS: The highest Texas State Court adjudicating appeals for

criminal cases. Criminal appeals do not go to the Texas Supreme Court.

CROSS-EXAMINATION: The questioning of an opposing party's witness about matters that were brought up during direct examination.

DEFAULT JUDGMENT: A ruling entered against a defendant who fails to answer a lawsuit.

DEFENDANT: The party sued by the plaintiff in civil court. The person charged with a criminal court.

DEPOSITION: Part of the pre-trial discovery (fact-finding) process in which a witness

testifies under oath. A deposition is held out of court with no judge present, but the answers often can be used as evidence in the trial.

DIRECT EXAMINATION: The initial questioning of a witness by the party that called the

witness.

DIRECTED VERDICT: A judge's order to a jury, at the end of a trial, to return a specific

verdict. This is usually ordered by the judge because one of the parties failed to prove its case.

DISCOVERY: Part of the pre-trial litigation process during which each party requests

relevant information and documents from the other side in an attempt to "discover" pertinent facts.

LEGAL DEFINITIONS

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DISMISSAL WITH PREJUDICE: When a case is dismissed for good reason and the

plaintiff is barred from bringing another action on the same claim. Generally, this is granted when the case is decided on its merits rather than a technicality.

DISMISSAL WITHOUT PREJUDICE: When a case is dismissed but the plaintiff is allowed

to bring a new suit on the same claim.

DOUBLE JEOPARDY: Although a very involved concept, put simply, it refers to being tried twice for the same criminal offense.

DUE PROCESS: The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person's basic rights to "life, liberty or

property, without due process of law." Courts have issued numerous rulings about what this means in particular cases.

EN BANC: French for "by the full court." When all the members of an appellate court hear

an argument, they are sitting en banc. Normally cases are heard by smaller panels of all of the available justices.

EQUAL PROTECTION CLAUSE: Portion of the Fourteenth Amendment to the U.S. Constitution that prohibits discrimination by state governmental institutions. The clause

grants all people "equal protection of the laws," which means that the states must apply the law equally and cannot give preference to one person or class of persons over another.

ESTABLISHMENT CLAUSE: Portion of the First Amendment to the U.S. Constitution that

prohibits government from "establishing" a religion. This is commonly referred to as the separation between church and state.

EX PARTE: Latin that means "by or for one party." Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden,

but are common for issuing of warrants and temporary restraining orders.

EXPERT WITNESS: A witness with a specialized knowledge of a subject who is allowed to discuss an event in court even though he or she was not present. For example, an arson

expert could testify about the probable cause of a suspicious fire.

FEDERAL COURT: Adjudicating civil matters arising under federal law (such as

constitutional claims) and civil matters between parties in different states where the amount in controversy exceeds $75,000. Federal courts also hear criminal actions in violation of

federal law.

FELONY: Serious crime punishable by incarceration for a year or more. Felonies include rape, murder, robbery, burglary and arson.

FIDUCIARY DUTY: An obligation to act in the best interest of a party. These duties are

only imposed in certain special relationships, like the attorney/client relationship.

LEGAL DEFINITIONS

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GARNISHMENT: Also known as wage execution. A court-ordered method of debt collection

in which a portion of a person's salary is paid to a creditor. This is often used to collect child support payments.

GRAND JURY: A group of citizens convened in a criminal case to consider the prosecutor's

evidence and determine whether or not probable cause exists to prosecute a suspect for a felony.

GROSS NEGLIGENCE: Failure to use even the slightest amount of care in a way which is

recklessness or willful disregard for the safety of others.

GUARDIAN AD LITEM: Latin for “guardian at law.” The person appointed by the court to

look out for the best interests of a child during the course of legal proceedings.

HABEAS CORPUS: Latin phrase meaning "you have the body." Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate

to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully.

HEARSAY: Secondhand information that a witness only heard about from someone else and did not see or hear himself or herself. Hearsay is not admitted in court because it's not

trustworthy, though there are many exceptions to this exclusion.

HUNG JURY: A jury that is unable to reach a verdict.

IMMUNITY: Exemption from a legal duty, penalty or prosecution.

IN CAMERA: Latin for "in chambers." This refers to a hearing or inspection of documents

by a judge that takes place in private, often in a judge's chambers.

INDICTMENT: A formal accusation of a felony, issued by a grand jury after it considers the evidence presented by a prosecutor.

INDIGENT: Lacking in funds; poor.

INFORMATION: A formal accusation of a crime, issued by a prosecutor. This is an

alternative to an indictment.

INTERLOCUTORY ORDER: Temporary order issued during the course of litigation.

Typically, these orders cannot be appealed because they are not final.

INTERROGATORIES: Part of the pre-trial discovery (fact-finding) process in which a witness provides written answers to written questions under oath. The answers often can

be used as evidence in the trial.

INTESTATE: To die without a will.

LEGAL DEFINITIONS

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JUDGMENT: A court's official decision on the matters before it.

JUDGMENT NON OBSTANTE VEREDICTO: Known also as a judgment notwithstanding

the verdict (JNOV). A decision by a trial judge to overturn a jury’s verdict to rule in favor of the losing party.

JURISDICTION: A court's authority to rule on the questions of law at issue in a dispute,

typically determined by geographic location and type of case.

JURY CHARGE: The judge's instructions to the jurors on the law that is to apply in a case

and the definitions of the relevant legal concepts.

JUST CAUSE: A legitimate reason. Often used in the employment context to refer to the reasons why someone was fired.

LESSER INCLUDED OFFENSES: Charges that contain elements of the most serious charge

against a defendant. For instance, a person charged with first-degree murder (which requires premeditation) could be convicted of second-degree murder (a killing done without

premeditation) or manslaughter (a killing done in the heat of passion).

LIBEL: Defamatory (false and injurious) written statements or materials, including movies

or photographs.

LIQUIDATED DAMAGES: An amount of money specified within a contract that is to be awarded in the event that the contract or agreement is violated. Normally this is done when

actual damages would be hard to calculate.

LITIGATION: The trial process to include all matters prior to trial as well as appeals.

MAGISTRATE: A judge that conducts hearings in federal court or in state criminal court.

The magistrate is generally responsible for setting bond/bail at arraignment.

MAGISTRATIZATION: The term used by criminal lawyers to describe a defendant’s right to see a magistrate judge for a bail hearing within 48 hours after arrest.

MALPRACTICE: Improper or negligent behavior by a professional, such as a doctor or a

lawyer. The failure of a professional to follow the accepted standards of practice in his or

her profession.

MANDATORY SENTENCE: A criminal sentence set by a legislature that establishes the minimum length of prison time for specified crimes and thus limits the amount of discretion

a judge has when sentencing a defendant.

MASTER: The state civil court’s equivalent to a federal magistrate. The master hears motions and makes advisory rulings which the trial court judge generally accepts but may

reject.

LEGAL DEFINITIONS

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MEDIATION: A method of alternative dispute resolution in which a neutral third party

helps resolve a dispute through negotiated settlement. The mediator does not have the power to impose a decision on the parties. If a satisfactory resolution cannot be agreed

upon, then the parties can begin or continue litigation.

MINOR: A person who does not have the legal rights of an adult. A minor is usually defined as someone who has not yet reached the age of majority. In most states, a person reaches

majority and acquires all of the rights and responsibilities of an adult when he or she turns 18.

MIRANDA WARNING: The statement recited to individuals taken into police custody. It warns them of their right to remain silent and to have an attorney present.

MISDEMEANOR: Crime that is punishable by less than one year in jail, such as minor theft

and simple assault that does not result in substantial bodily injury.

MOTION FOR A NEW TRIAL: Request for a new trial done by a losing party who asserts that the original trial was unfair due to legal errors that prejudiced its case.

NEGLIGENCE: A failure to use the degree of care that a reasonable person would use under the same circumstances.

PAROLE: A system for the supervised release of prisoners before their prison terms are

over. Congress has abolished parole for people convicted of federal crimes, but most states still offer parole.

PENALTY PHASE: The second part of a bifurcated trial, in which the jury hears evidence

and then decides on what penalties or damages to impose.

PERJURY: A crime in which a person knowingly makes a false statement while under oath

in court. In some jurisdictions, making a false statement in a legal document can also be considered perjury.

PETIT JURY: The jurors empaneled to hear a civil or criminal trial typically consisting of

six or twelve jurors. They are different from a grand jury.

PETITION: A written application to the court asking for specific action to be taken.

PLAINTIFF: The person who initiates a lawsuit.

PLEA BARGAIN: A negotiated agreement between the defense and the prosecution in a

criminal case. Typically the defendant agrees to plead guilty to a specified charge in exchange for an oral promise of a lower sentence.

PLEADINGS: In a civil case, the allegations by each party of their claims and defenses.

POWER OF ATTORNEY: The authority to act legally for another person.

LEGAL DEFINITIONS

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PREPONDERANCE OF THE EVIDENCE: The level of proof required to prevail in most civil

cases. The judge or jury must be persuaded that the facts are more probable one way than another.

PRIMA FACIE: Latin for "at first view." Refers to the minimum amount of evidence a

plaintiff must have to avoid having a case dismissed.

PRIVILEGED COMMUNICATION: Conversation that takes place within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a

priest and penitent and a doctor and patient. The law often prevents forced disclosure of

such conversations.

PRO SE: (pronounced "pro say") Latin phrase that means "for himself." A person who represents himself or herself in court alone without the help of a lawyer is said to appear

pro se.

PROBABLE CAUSE: A reasonable belief that a person has committed a crime.

PROBATION: Sentence imposed for commission of a crime whereby a convicted criminal

offender is released into the community under the supervision of a probation officer in lieu of incarceration. This is different from parole in that the person is not incarcerated prior to

or pending successful completion of the probationary period.

PROTECTIVE ORDER: In litigation, an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. In a domestic dispute,

an order that prevents one party from approaching or being near another, often this is a specified distance.

PUNITIVE DAMAGES: Money awarded to a victim that is intended to punish a defendant and stop the person or business from repeating the type of conduct that caused an injury.

Also used and intended to deter others from similar conduct.

REAL PROPERTY: Land and all the things that are attached to it.

REASONABLE CARE: The level of care a typical person would use if faced with the same circumstances.

REASONABLE DOUBT: The level of certainty a juror must have to find a defendant guilty of a crime. This is doubt, based on reason and common sense after impartial consideration

of all the evidence in a case.

REMAND: When an appellate court sends a case back to a lower court for further proceedings.

REPLEVIN: Repossession. Action taken by a creditor to seize the assets of a debtor.

LEGAL DEFINITIONS

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RIGHT AGAINST SELF-INCRIMINATION: Granted by the Fifth Amendment of the

Constitution. This allows a person to refuse to answer questions that would subject him or her to the possibility of prosecution. This can only be asserted in criminal cases.

RIGHT OF EMINENT DOMAIN: The government's right to acquire private property for

public use in exchange for just compensation.

SECURITY AGREEMENT: A contract between a lender and borrower that states that the lender can repossess the property a person has offered as collateral if the loan is not paid

as agreed.

SERVICE OF PROCESS: The act of notifying the other parties that an action has begun

and informing them of the steps that they should take in order to respond. This is usually done by a process server who has a citation and “serves” the sued party with the petition

or complaint.

SLANDER: Defamatory (false and injurious) oral statements or gestures.

STANDARD OF CARE: The degree of care a reasonable person would take to prevent an

injury.

STANDING: The legal right to initiate a lawsuit.

STATUTE: A codified law enacted by a governing body.

STATUTES OF FRAUD: Laws in most states to protect individuals from false claims for payment on contracts that were not agreed upon. The specific laws vary from state to state,

but most require that certain contracts be in writing.

STATUTES OF LIMITATIONS: Laws setting deadlines for filing lawsuits within a certain

time after events occur that are the source of a claim.

STRICT LIABILITY: Liability even when there is no proof of negligence. This is often applicable in product liability cases and cases involving inherently hazardous activity and/or

material.

SUBPOENA: An order compelling a person to appear to testify or produce documents.

TRUE BILL: A grand jury finding that probable cause exists against a person accused of a

crime.

TRUST: Property given to a trustee to manage for the benefit of a third person. Generally the beneficiary gets interest and dividends on the trust assets for a set number of years.

TRUSTEE: Person or institution that oversees and manages a trust.

LEGAL DEFINITIONS

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UNIFORM COMMERCIAL CODE: A model statute covering things such as the sale of

goods, credit, and bank transactions. All states have adopted and adapted the entire UCC, with the exception of Louisiana, which only adopted parts of it.

UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT: Law that allows an order

of child support issued in one state to be enforced in another state.

UNJUST TAKING: When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property,

such as when a government regulation has substantially devalued a property.

VENUE: Location of the actual trial.

VOIR DIRE: A French phrase that means "to speak the truth." This is the process of

interviewing and asking questions of prospective jurors. Pronounced "vwa dear" in French but use "vwa di-ar" or “vor di-ar” in Texas.

WRIT: A judicial order.

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