THL_July/August_2012

lawyerVolume 50 – Number 1 July/August 2012

inside...

Courts and Sports: Player Injuries – Assumption of The Risk or Illegal Foul?

What Law Applies?

Technology-Assisted Review

What Every Lawyer Should Know About Defending a Property Tax Suit

Interview With New HBA President Brent Benoit

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Brent Benoit2012-2013 PresidentHouston Bar Association

Mark Gentry | Christine Belcher-Karnauch | Shelly Maffett | Carol Gonzales

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Courts and Sports: Player Injuries – Assumption of The Risk or Illegal Foul? By Scott D. MarrS and Sean P. Milligan

What Law Applies? By Hon. Dan HinDe

Technology-Assisted Review: What Is It and Why Should You Care?gary Wiener

What Every Lawyer Should Know About Defending a Property Tax Suit By MicHael lanDruM

Family and Community...An interview with new HBA president Brent Benoit

Benoit Takes Office as HBA President

50-Year Lawyers

President’s Awards and Special Recognition

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The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: [email protected] Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2012. All rights reserved.

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Join the Houston Bar association’s 100 club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal

profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA.

Firms of 5-24 attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & FriendAdair & Myers PLLC Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Ajamie LLP Allen Boone Humphries Robinson LLP Andrews Myers, P.C.Bair Hilty, P.C.Baker Williams Matthiesen LLP The Bale Law Firm, PLLCBarrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & HouseBlank Rome LLPBrewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P.Campbell & Riggs, P.C.Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Conley Rose P.C. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Diamond McCarthy LLPDinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLPEdison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLCFaubus & Scarborough LLPFernelius Alvarez PLLCFibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLPFisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C.Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PCFunderburk & Funderburk, L.L.P. Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Goldstein & Lipski, PLLC Gordon & Rees LLPGreer, Herz & Adams, L.L.P.Hagans Burdine Montgomery & Rustay, P.C.Harris, Hilburn & Sherer

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Firms of 100+ attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord LLPVinson & Elkins LLP

corporate legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell IndustriesMAXXAM IncNewfield Exploration CompanyPetrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System

law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center government agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations OfficeMetropolitan Transit Authority of Harris County TexasPort of Houston Authority of Harris County Texas

42President’s MessageServing Our Members and Our Community By Brent Benoit

From the editorNew Beginnings By Keri D. BroWn

Houston lawyers Who Made a Difference By Hon. MarK DaViDSon

a Profile in Professionalism alissa rubin gomez Executive Director, HBA Houston Volunteer Lawyers Program

coMMittee SPotligHtLegalLine – Providing the Public with Direct Access to AttorneysBy Keri D. BroWn

off the recordKent Newsome’s Country RoadBy Julie Barry

legal trendsNational Federation of Independent Business v. Sebelius and Its Effect on U.S. Health Care By SHeryl tatar DacSo

Arizona v. United States: A State’s Role in Immigration Enforcement By MarcoS geMoetS

Media reviewsA Marked Heart reviewed by angela l. Dixon

Placement Service litigation MarketPlace

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Cover: Brent Benoit of Locke Lord LLP is the 2012-2013 president of the Houston Bar Association. Photo by Gittings.


It is an honor to serve as president of the Houston Bar Association this year. With more than 11,600 mem-bers, the HBA is uniquely situated to assist both its members and the community. For more than 140

years, the HBA has done exactly that, and we will work this year to con-tinue this tradition of service.

Our first priority will always be to work to enhance the practices of our members. The HBA offers free and discount-ed CLE programs, sec-tion memberships that provide opportunities to network and stay abreast of current developments in the field, and a host of other benefits. We will continue these programs and look for new ways to make HBA membership even more valuable.

We will also serve our community. Community service is not only the right thing to do, but it also allows our mem-bers to foster relationships with others in our community. This year, the HBA will have four primary areas of community fo-cus that are relevant, important, and con-sistent with the HBA’s overarching goal of service.

First, the HBA will attack the problem

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of hunger in Houston. Despite our com-munity’s strong efforts, Houston has the fourth highest rate of food insecurity in the nation. An estimated 53,000 people are hungry in our community every day and nearly half of these individuals

are kids. This year we will

partner with the Souper Bowl of Caring, a youth-led project organized around the NFL Super Bowl, to make a mean-ingful impact on hun-ger in Houston. The HBA will support this project by organizing a food and money drive leading up to the Super

Bowl. We will also ask our members to give of their time by volunteering to work at local hunger relief organizations, such as the Houston Food Bank and local soup kitchens.

Second, the HBA will work to make health care more accessible to the least fortunate among us. Houston is blessed to have world class medical and legal communities. Yet, we have individuals who are lost between these two groups — in need of health care, but with legal problems that prevent or frustrate their health care access. We will establish a Health Access Clinic as part of our Hous-ton Volunteer Lawyers Program. This

clinic will aid impoverished individuals with legal issues related to health care ac-cess so that they can more effectively ac-cess the health care they need.

Third, the HBA will work to help Hous-ton recover from the drought of 2011. As a result of one of the driest years ever re-corded, the Bayou Land Conservancy es-timates the Houston area lost as much as 10% of its trees. That is nearly 66 million trees! In addition to the obvious visible effects, a Texas Forest Service study esti-mated that the tree loss represents an eco-nomic impact of more than $20 billion.

The American Bar Association has a stated goal of planting 1 million trees and the University of Houston Law Center recently contributed by organizing a tree planting effort at its campus. The HBA will also participate by planting at least 1,000 trees in our community.

Fourth, the HBA will work to educate our community about a problem at the core of basic human legal rights – hu-man trafficking. The ugly truth is that Houston is a major international hub for human trafficking. Because of our port, proximity to the border with Mexico, large migrant labor force, and the high number of sexually-oriented businesses, Houston has become a natural magnet for this activity.

Thousands of individuals fall victim to human trafficking each year and as many as 100,000 children are involved in the

Serving Our Members and Our Community

“With more than 11,600

members, the HBA is

uniquely situated to

assist both its members

and the community.

For more than 140

years, the HBA has

done exactly that...”


sex trade each year. Unfortunately, it is estimated that less than 1% of human trafficking victims are rescued. Of those rescued in the United States, a quarter of them are found in Texas, most of them in the Houston area.

Human trafficking represents the de-nial of fundamental constitutionally protected liberties. Thus, while human trafficking certainly presents a profound moral problem for our community, it also presents a profound legal issue for our Bar. We will work to raise awareness con-cerning human trafficking, pointing out the legal and practical ramifications of forced servitude.

As you can see, we have a busy year planned. I hope you will become in-volved in the HBA’s many projects and take advantage of the many benefits of HBA membership. I look forward to working with you, and I welcome your suggestions as to how we can further en-hance the HBA’s service to its members and our community.

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thehoustonlawyer.com July/august 2012 7

As we begin a new bar year, we welcome Brent Benoit, our new Houston Bar Asso-ciation President, as well as a new crop of committee chairs, section chairs, and mem-bers of these committees and sections. The beginning of a new bar year often mirrors

the end of summer employment programs for many law firms throughout our city. At my firm, one topic we dis-cussed with our summer associates is the importance of having a mentor in the legal profession. I have been very fortunate to have several mentors during my relatively brief legal career, and these mentors have helped me both with my legal practice and my professional development. I am proud to write that I have reached a level where I am able to call myself a mentor to others in my firm.

Those of you who have practiced law for “a while” (you can define that phrase however you choose) by now un-doubtedly have had a mentor and have been a mentor and friend to perhaps countless others. Those of you in your beginning years of the practice of law perhaps are still finding your mentors. One of our responsibilities, as members of the legal profession, should be to find men-tors when we need them and be a mentor when others need us. As we begin the new bar year, consider where you are on the “mentor spectrum.” Are you being a men-tor to your younger associates or partners? Are you a younger lawyer who could do a better job of finding a mentor to help guide you along the way? Challenge your-self to examine those relationships and, if need be, work to make them stronger.

While I’m on the subject, the HBA has a mentor/protégé program that matches experienced lawyers with lawyers in practice for three years or less or those who are enter-ing a new practice area. If you are interested in joining the program, the application is available on the HBA website (www.hba.org) or by calling (713) 759-1133.

Turning back to matters of The Houston Lawyer, I am excited to tell you about the special issues we have lined up for our upcoming year. In our September/October is-sue, we will focus on human trafficking in Houston and its surrounding communities, which is one of Brent Ben-

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By Keri D. BrownBaker Botts L.L.P.

aSSociateeDitorS

Julie BarryAttorney at Law

Jill YazijiYaziji Law Firm

oit’s special focuses of this bar year. We will follow that up in November/December, discussing energy from an inter-national perspective. We will start off 2013 with a very interesting January/February issue on the futurist’s view of the legal profession. In March/April, we will examine issues related to health care access, another of Presi-dent Benoit’s special focuses. Finally, we’ll wrap up our bar year with our May/June issue, which will feature, as usual, the great volunteers and programs we have within the bar. If you have article ideas or are interested in being considered to write an article on any of these topics, we would love to hear from you. Please contact Tara Shock-ley, our managing editor, at [email protected], or me at [email protected] at any time with your thoughts about our magazine.

The issue you hold in your hands is our general is-sue, featuring a variety of legal topics. Scott Marrs and Sean Milligan follow up their excellent July/August 2011 article discussing spectator injuries at sporting events with a timely article about sports participants’ injuries and the distinction between injuries resulting from ille-gal conduct on the field and injuries where a player is determined to have assumed the risk. Judge Dan Hinde provides an informative article on how Texas courts de-termine which state’s laws govern when multistate issues arise. Gary Wiener addresses the sometimes-overlooked area of technology law with his article about technology-assisted review of documents to assist litigators with the mountains (or terabytes) of data that must be reviewed in some cases. And Michael Landrum provides an educa-tional overview of the process of defending a property tax suit from start to finish.

This issue also brings us the first installment of Judge Mark Davidson’s profiles of noteworthy Houston lawyers. Judge Davidson began writing these profiles last year for the Houston Bar Bulletin and we are pleased that his arti-cles on significant happenings in Houston’s past will now appear in the pages of our magazine.

This magazine is yours. Please email us if you have any ideas for articles or improvement to our features. We look forward to hearing from you!

New Beginnings (They Happen Every Year)

Angela L. DixonAttorney at Law

Don Rogers Harris County District Attorney’s Office

Robert W. Painter Painter Law Firm PLLC


BOARD OF DIRECTORS

DIRECTORS (2011-2013) Hon. David O. Fraga Jennifer Hasley Neil D. Kelly Daniella D. Landers

DIRECTORS (2012-2014) Alistair B. Dawson Warren W. Harris Brent C. Perry John K. Spiller

EDITORIAl STAFFeditor in chief

Keri D. Brown

associate editors

Julie Barry Angela L. Dixon Robert W. Painter Don Rogers Jill Yaziji

editorial Board

Erika Anderson Sharon D. Cammack Suzanne Chauvin Melissa Davis Jonathan C.C. Day Sammy Ford IV Polly Graham John S. Gray Stephanie Harp Al Harrison Hon. Dan Hinde Farrah Martinez Chance McMillan Judy L. Ney Nick Nicholas Jeff Oldham Hon. Josefina Rendon Joy E. Sanders Tamara Stiner Toomer Gary A. Wiener

Managing editor

Tara Shockley

HBA OFFICE STAFF

ADvERTISIng SAlESDESIgn & pRODuCTIOn

QuantuM/Sur12818 Willow Centre, Ste. B, Houston, TX 77066

281.955.2449 • www.quantumsur.com

PublisherLeonel E. Mejía

Production ManagerMarta M. Mejía

advertisingMary Chavoustie

executive DirectorKay Sim

administrative assistantAshley G. Steininger

administrative assistantBonnie Simmons

receptionist/resource SecretaryLucia Valdez

Director of educationLucy Fisher

continuing legal education assistantAmelia Burt

community education assistantNatasha Williams

Membership and technology Services Director Ron Riojas

Membership assistant Ariana Ochoa

committees & events Director Claire Nelson

communications DirectorTara Shockley

communications/ Web DesignerBrooke Benefield

PresidentBrent Benoit

President-electDavid A. Chaumette

First Vice PresidentBenny Agosto, Jr.

Second Vice PresidentTodd M. Frankfort

Secretary Laura Gibson

treasurer M. Carter Crow Past PresidentDenise Scofield


Courts and Sports:

Player Injuries – Assumption of The Risk or Illegal Foul?

By Scott D. MarrS and Sean P. Milligan

I. RECENT EVENTS AND PUBLIC PERCEPTION – GAME CHANGERSOur country is experiencing an unprec-edented shift in public perception about the level of intentional conduct caus-ing injury that is acceptable in contact sports. There has always been a friction between the competitiveness of sports and the appropriateness of conduct aimed at injuring another. However, recent events have forced a national de-bate about the level of conduct that is acceptable and have educated the public on the debilitating effect of serious and prolonged injuries in contact sports.

In March 2004, millions of hockey fans witnessed the career-ending, on-ice beating of a player with the Colorado Av-alanche by an opposing player with the Vancouver Canucks, resulting in crimi-nal charges and a civil case that is head-ing for trial in late 2012. In March 2012, the New Orleans Saints were hit with the most severe sanctions in the NFL’s 92-year history for “bounty-gate,” a pro-gram of paying players to intentionally harm opposing players. And in what will likely become a game-changer in major sports, hundreds of former NFL play-ers have sued the NFL (1,500 plaintiffs in over 50 filed cases as of publication) for its alleged failure to adequately warn about and prevent head injuries causing serious injuries or death. Several recent suicides of former NFL players have been blamed on the effects of on-field concussions, including Chicago Bears defensive back Dave Duerson in Feb-ruary 2011, Atlanta Falcons safety Ray Easterling in April 2012, and Pro-Bowl linebacker Junior Seau in May 2012.

The July/August 2011 issue of The Houston Lawyer featured our first sports injury law article, entitled “Sporting Events – Ticket to a Lawsuit?” That ar-ticle focused on injuries sustained by spectators during sporting events. This article discusses how the law treats inju-ries sustained by sports participants, and

behind the assumption of risk doctrine is that barring suits for injuries received from inherent risks of the sport will en-courage vigorous participation in athlet-ic activities. Removing the threat of law-suits arising out of ordinary negligence will give athletes the freedom to partici-pate vigorously in their sport, without the fear of litigation if an injury occurs.

The question then becomes: what is an inherent risk as opposed to an extraor-dinary risk? One recent New York case involving a college softball player hit in the face by her coach (while he dem-onstrated how not to swing a bat), ad-dressed this question. The court denied the college’s motion to dismiss the case filed by the injured player, holding that the player did not assume this risk since a jury could find that her experience in playing softball created an expectation that her coach would ensure her safety before swinging the bat (i.e., the risk was not an obvious and foreseeable risk inherent to college softball).1

However, where the risk is obvious and foreseeable in the particular sport, courts broadly apply the assumption of risk doctrine. In Bukowski v. Clarkson University,2 a freshman pitcher sued Clarkson University after he was struck in the face by a line drive during bat-ting practice. He alleged that improper lighting and the absence of a protective “L” screen unreasonably enhanced the risk of being hit by a ball. The court dis-missed the case at the close of evidence, holding that the pitcher assumed the inherent risks of being hit by a baseball while pitching during live batting prac-tice. The court was not persuaded by the pitcher’s argument that the university failed to provide a protective “L” screen since he was aware before practice that an “L” screen would not be used and, therefore, assumed the added danger of pitching without the protective device.

A. Theories of LiabilityParticipant liability generally arises from the following behavior: (1) intentional conduct by a participant towards an-

the difference between risks of injury that are assumed by players and those that constitute illegal fouls that cross the line.

II. LIABILITY ARISING FROM SPORTS PARTICIPANT INJURIESParticipant injuries, and litigation, arise from both professional and recreational sports. Many Americans compete in rec-reational softball, football, soccer, bas-ketball, and even kickball leagues, while others informally gather at the local park or YMCA to play a pick-up basketball, football, or softball game. Often, these informal recreational activities become physical. Ankles are sprained, knees are bruised, fingers are jammed, noses are broken, all while the participants enjoy the competitive nature of the game be-ing played. Surely, a participant cannot sue for every injury sustained during the Saturday morning basketball game.

Can a participant in recreational, school, or professional sports recover for such injuries? Yes, but a few ques-tions must be answered first: (a) Was the participant injured as a result of an in-tentional – or a reckless – act?; (b) Was the conduct complained of within the rules and parameters of the sport?; and (c) Did the injury occur during a profes-sional or recreational sporting event?

While many participant injuries are unintentional and within the inherent risks of the game, there are situations where participants intentionally or reck-lessly injure another participant. For ex-ample, at what point is a pitcher civilly liable for throwing a ball between the batter’s shoulder blades? When can a late hit on a quarterback be the basis of a lawsuit? Is a boxer liable for a “rabbit” punch? This article does not attempt to answer all of these questions, but in-tends to shed some light on how courts analyze injuries to sport participants.

Generally, voluntary sports partici-pants assume obvious and foreseeable risks inherent to the particular sport, but not extraordinary risks not incident to the sport. The public policy rationale

other participant; (2) willful disregard/reckless misconduct; or (3) a failure to exercise reasonable care, (i.e., negligent misconduct).

1. Intentional ConductA participant who intentionally injures another participant during a sporting event will be subject to civil liability for the injuries caused, because intentional harm is outside the scope of the rules of play. For instance, a participant in a bas-ketball game cannot walk over to the op-posing player and punch him in the face.

This blanket rule is not always so sim-ple. The very act of engaging in a contact sport necessitates some intentional con-tact during play. Moreover, the nature of the sport weighs heavily in a court’s determination of whether the intention-al conduct is actionable. For example, Oscar De la Hoya could not sue Felix Trinidad for knocking him out during a boxing match. Clearly, such contact was part of a mutual consent by both fighters before entering the fight. Likewise, LeB-ron James could not sue Kobe Bryant for fouling him when he goes up for a shot, even if Kobe intended to foul LeBron to prevent the basket.

A participant consents to intentional contact by engaging in the sport. Par-ticipation in a game, however, does not manifest a willingness to contact pro-hibited by the rules of the game, if such rules are in place to protect participants. For instance, the rule prohibiting box-ers from hitting below the beltline is de-signed to protect boxers from physical harm. Where a violation and subsequent injury occurs, liability is more likely.

Another interesting question is the extent to which sports participants should be given leeway where physical harm is the ultimate goal of the sport, as opposed to an unintended result of engaging in the activity. For example, in Mixed Martial Arts (“MMA”), the very purpose of the sport is to inflict damage on your opponent in any way possible, within the confines of the rules. This is different than a boxer who bites an op-


for their involvement, and the Saints organization was fined $500,000 and forced to give up draft selections from the 2012 and 2013 drafts. The sanctions were the most severe issued in NFL his-tory. The NFL made highly publicized statements stressing the importance of its players’ health and safety. Interest-ingly, the NFL itself is now under attack for allegedly failing to protect its play-ers from serious health problems aris-ing from repeated head injuries, as dis-cussed later in this article.

HockeyHockey is perhaps one of the most phys-ical sports on earth. Part of the excite-ment in attending a hockey match is watching a player check another player into the Plexiglass or the possibility of witnessing an old-fashioned brawl. These fights are part of the game. In-deed, referees will monitor the fight and will generally only break it up when one player falls to the ice. But what is too far?

ponent’s ear during the match because boxing rules are more narrowly tailored to allow only punches to be inflicted on an opponent. Civil liability is less like-ly for the MMA fighter who is afforded more avenues to harm his opponent.

Football—the Recent NFL “Bounty-Gate” ScandalIt is no secret that football is not for the faint of heart. However, the recent NFL “bounty” scandal demonstrates that sports participants do not assume the risk of conduct aimed at intentionally in-juring other players. In 2010, the NFL began investigating allegations that the New Orleans Saints paid their players a bounty for intentionally injuring players on the other team. In March 2012, the NFL announced its findings that several coaches and more than 20 players on the Saints team engaged in a “bounty” program, wherein players were paid bo-nuses for knocking opposing players out of the game.

The NFL found that the players and

defensive coordinator pooled their own money to pay these performance bo-nuses. The highest bonus was reserved for players who hurt an opposing player so bad that he had to be “carted off” the field on a stretcher (the bonuses were al-legedly higher during the playoffs). One key item of evidence occurred during the 2009 playoffs in a game against the Minnesota Vikings. After the Vikings’ quarterback, Brett Favre, suffered an an-kle injury after a punishing hit, an un-identified Saints player could be heard saying: “Pay me my money!”

The sanctions imposed by the NFL Commissioner were severe. The Saints Defensive Coordinator was suspended from the NFL indefinitely. The Head Coach was suspended for the entire 2012 season (for allegedly covering up the scandal), the General Manager was suspended for the first eight games of the 2012 season, and the Assistant Head Coach was suspended for the first six games of the 2012 season.

Several players were also suspended

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hit. The court noted that being inten-tionally hit is:

so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” Pitch-ers intentionally throw at batters to disrupt a batter’s timing or back him away from home plate, to retaliate af-ter a teammate has been hit, or to pun-ish a batter for having hit a home run. This ruling makes sense. While inten-

tionally drilling an opposing batter is clearly a violation of the rules, this is not an area in which the courts should be involved. The more workable approach is to allow the league to police itself in the form of fines and/or suspensions. As noted by Avila, throwing at a batter is part of the strategy of the psychologi-cal game between the pitcher and bat-ter. Just recently, Philadelphia Phillies pitcher Cole Hamels openly admitted hitting Washington Nationals rookie

The infamous Todd Bertuzzi sucker-punch of Steve Moore is an example of a hockey fight that crossed the line. During a March 8, 2004 game in Van-couver between the Colorado Avalanche and the Vancouver Canucks, Bertuzzi (a forward for the Canucks) instigated a fight with Moore. When Moore ig-nored him, Bertuzzi skated up behind Moore, grabbed his jersey, punched him in the side of the head, and then landed on top of him. Moore was severely in-jured, suffering three fractured verte-brae in his neck, a severe concussion, vertebral ligament damage, and several other injuries. Moore’s career was ended by the punch. Bertuzzi was charged by the criminal justice branch of the British Columbia Ministry with assault causing bodily harm.

Moore also filed a civil lawsuit in 2006 against Bertuzzi, the Canucks, and the Canucks’ former team owner, seeking $38 million in damages. To date, settle-ment negotiations have broken down and the case is likely heading to trial in

September or October 2012.

BaseballNot all cases are quite as clear from a li-ability standpoint. For instance, should civil liability be imposed on a pitcher who purposefully beans a player on the opposing team in retaliation for one of his players being hit earlier in the game?

In baseball circles, it is generally ex-pected that pitchers will throw at op-posing batters if one of his teammates is hit earlier in the game or in a previous game. Certainly this conduct is not al-lowed under the written rules, and play-ers are often suspended and fined for this conduct. But is this an area where the courts should be involved? Or is this an intrinsic part of the game in which the law should not interfere? In Avila v. Citrus Community College District, the California Supreme Court said that courts should not interfere in these situ-ations.3 In so holding, the court held that being hit by a pitch is an inherent risk of baseball, as is being intentionally


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phenom Bryce Harper, for no apparent reason other than to “welcome [him] to the big leagues.”4 Hamels was suspend-ed for five games and will almost surely be insulated from civil liability. But rest assured, the Washington Nationals will look to settle the score in the next meet-ing between the two teams.

The same cannot be said for other sports. Throwing a basketball at another player for no apparent reason is not part of the strategy of the game, nor is club-

bing an opposing player with a hockey stick.

2. Reckless ConductAlthough unauthorized intentional con-tact by a participant may be actionable in civil court, it is less clear whether uninten-tional conduct causing injury is action-able. The prevailing rule is that reckless conduct (conduct that is more than mere negligence, but less than intentional con-duct) is sufficient to impose liability in

participant injury cases. Recklessness is generally defined as highly unreasonable conduct, involving an extreme departure from ordinary care, where a high degree of danger is apparent.

A 1975 Illinois case, Nabozny v. Barn-hill, firmly established recklessness as the prevailing standard in participant injury cases.5 A soccer player kicked the opposing goalie in the head as he held the ball to his chest. The Illinois court adopted a recklessness standard of care, holding that a participant may be liable where they manifest a flagrant disregard for the applicable rules of play. While the Nabozny decision involved amateur athletics, the reckless standard has been adopted in the context of professional athletes as well. The seminal profession-al athlete case is Hackbart v. Cincinnati Bengals, Inc., where the Tenth Circuit Court of Appeals held that a football player’s act of striking an opposing play-er in the head out of “anger and frustra-tion” involved a risk of harm substan-tially greater than mere negligence, and was therefore actionable in civil court.6

Virtually every jurisdiction has estab-lished a threshold requirement of reck-lessness in order to recover for partici-pant related injuries. Thus, to get a case to the jury, a plaintiff must ordinarily show that the defendant’s actions con-stituted an extreme departure from ordi-nary care and the rules of the game.

3. Negligent Conduct – The Mere Negligence StandardThe majority of jurisdictions have re-fused to adopt a mere negligence stan-dard for participant injuries in contact sports. Thus, a participant injured dur-ing a football, baseball, soccer, basket-ball, or hockey event cannot recover damages for injuries when the defendant was merely negligent. The principal jus-tification for such a rule is to encourage healthy participation without the fear of liability. For instance, if a basket-ball player could be liable for an errant pass hitting another player in the face, a hockey player could be liable for a bad


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protect players from devastating head in-juries. Over 1,500 players thus far have claimed that the NFL hid the dangers of concussions from them. Some played in the 1960s, some in the 1990’s or more recently, and they have varying degrees of injury and lengths of actual field play.

Whether “assumption of risk” defens-es will be successful will depend on a number of factors, with the determining factor being what the NFL (and the play-ers) knew and when they knew it. Other

issues will include whether the NFL had “superior knowledge” about the medical issues, whether a duty existed to warn and safeguard the players, and whether the NFL failed to disclose what it knew about the dangers of concussions.

The recent and tragic suicide of Junior Seau shines an additional spotlight on an already glaring problem. Traumatic brain damage has been found in autop-sies of other former NFL players who have taken their own lives. This issue

shot on the puck that hits an unintended target, or a pitcher could be liable for a fastball that accidentally gets away and hits the batter, many courts believe the threat of such liability would undercut the competitive nature of the game. Only one jurisdiction, Wisconsin, has ever ex-pressly adopted the negligence standard for participant injuries in contact sports, holding that a participant failing to use ordinary care may be liable for injuries caused to other participants from such negligence.7 However, the Wisconsin legislature later overruled the Lestina holding to codify a higher “recklessness” standard for sports related injuries.8 The mere negligence standard is more widely recognized as the standard for non-con-tact sports. For example, one Indiana court held that a golfer who was struck in the eye by a defendant hitting from an-other hole did not assume the risk of the defendant’s negligence.9 An Illinois court applied the negligence standard in a case where a skier was injured in a collision with another skier.10 This makes sense in application. In both contexts, contact is not an inevitable part of the activity, and therefore, a defendant may be held liable for negligently causing unexpect-ed contact with a co-participant. Only a couple of jurisdictions apply the reckless standard for injuries sustained in non-contact sports.11

B. Other Recent Sports Liability Developments1. The Recent Avalanche of Head In-jury Litigation against the NFLSeason-ending and even career-ending injuries are quite common in the NFL. The continuous punishment NFL play-ers endure over the years has been placed front and center in a recent lawsuit by former NFL players living with the af-ter-effects of concussions suffered on the field. In May 2012, over 100 former NFL players filed a federal court lawsuit against the NFL, alleging that the league repeatedly refuted the connection be-tween concussions and brain injuries and failed to take reasonable steps to


city or contractor). Thus, while volun-tary participation in “sporting” activities subjects the participant to an assump-tion of risk defense, this New York court ruled that a participant in “leisurely” activities does not assume the risk of in-jury by others.

This case represents an interest-ing question: what activity is consid-ered “leisure” and what is considering “sporting”? What if the bicyclist was in an actual competitive race? Ostensibly, assumption of risk would be a viable de-fense in that case. Oftentimes, the line between “leisure” and “sporting” activi-ties are blurred. What about a pick-up basketball game at the local YMCA? These are questions that have not been clearly resolved by the courts. However, at least one court has now articulated the rule that those participating in a sport have assumed the risks inherent to their sport, while those who are merely par-taking of recreational activities have not assumed the risks inherent in “sports.”

has brought sports in our country to an important crossroads. The vitality and competitiveness of our sports franchises – and the games themselves – must be maintained while also adequately safe-guarding the health of our players.

2. Participants in “Leisurely” Activi-ties (versus “Sporting” Activities) May Not Be Assuming the Risk of Anoth-er’s NegligenceA New York court recently drew a criti-cal distinction between “leisure” and “sporting” activities in ruling that a bi-cyclist injured in an accident caused by roadway repairs did not “assume the risk” of injury from another’s neg-ligence.12 The court noted that merely choosing to operate a bicycle on a paved public roadway, or engaging in other forms of leisurely activities such as walk-ing, jogging, or roller skating on a public roadway, does not constitute a “consent” to the negligence of others (such as neg-ligent maintenance of roadways by a

3. Skiing the Rail - The Dare-Devil SkierAnother New York court was asked recently to determine whether a skier who broke his leg trying to ski down a rail assumed the risk of injury.13 The plaintiff was a 17-year-old, self-de-scribed expert skier who was engaging in freestyle skiing with friends on a rail-ing at the Lower Valley Terrain Park at Whiteface Mountain, which is operated by the New York State Olympic Regional Development Authority. The evidence showed that the skier was aware of the risks associated with rail sliding. His parents nonetheless filed suit against the State of New York, arguing that the rail was unsafe because the vertical support bars were not covered or cushioned. The court rejected this argument, holding that the plaintiff assumed the risks that were fully comprehended or perfectly obvious. The court further held that the skier could have inspected the rail before trying to slide on it, but chose not to.

4. Golfing - Duty to Yell Fore? Proper golf etiquette typically requires a golfer to yell “fore” after hitting an er-rant shot. But can one’s failure to do so subject him to liability? A recent New York case said no.14 Three friends went out on a golf outing. On the first hole, one of the golfers hit his companion in the left eye with an errant shot. The in-jured golfer lost sight in his eye and sued his golf partner. There was a dispute as to whether the defendant yelled “fore.” The court dismissed the case, holding that under the assumption of risk doc-trine, the plaintiff, as a voluntary partici-pant in a sporting and recreational ac-tivity, was deemed to have consented to commonly appreciated risks which are inherent in, and arise out of, the nature of the sport. The court further noted, in accordance with the general rule on as-sumption of risk, that only reckless or intentional conduct can give rise to li-ability. Failing to yell “fore” after hitting an errant golf shot was not reckless in the court’s view.

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III. CONCLUSION – A STATE OF FLUXTraditionally, courts have been hesitant to hold participants civilly liable for injuries that are inherent in the sport. However, if the participant intention-ally harms another participant, liability may be imposed if such conduct is not within the accepted rules and customs of the game. Courts have also found par-ticipants civilly liable where they reck-lessly disregard the applicable rules of play, while refusing to impose liability for mere negligence.

What seems clear at this point is that participants will not recover for injuries inherent in the sport itself and which they assume. The fervent nature of competitive sports in America demands that athletes not be timid in playing the game. However, athletes should not be given free rein to intentionally or reck-lessly cause injuries to other partici-pants.

More recent events have caused a fundamental shift in public percep-

tion regarding sports injuries. For de-cades, injuries were simply “a part of the game.” Today, the public is becom-ing more educated about the debilitat-ing effect of serious trauma sustained in many sports activities. This is causing the public, the health industry, local and national sports franchises and organiza-tions, legislatures, and the courts to take a fresh look at the sports injury issue, including cause and effect and issues of liability. As a result, we are in a state of flux – which will likely result in needed changes in the ensuing decade, designed to further protect the health and safety of sports.

Scott D. Marrs is a partner at Beirne, Maynard & Parsons, LLP and Sean P. Milligan is an associate at Winstead, PC. They represent clients in commercial dis-putes, trials and arbitrations, both in Texas and throughout the country. Marrs is an arbitrator on the American Arbitration As-sociation’s Energy and Commercial panels.

endnotes1. Murphy v. Polytechnic University, 850 N.Y.S.2d 339

(N.Y. Sup. Ct. 2007).2. Bukowski v. Clarkson University, 928 N.Y.S.2d 369

(N.Y. App. Div. 2011).3. Avila v. Citrus Community College District, 38 Cal. 4th

148 (2006).4. Chuck Schilken, Is Cole Hamels’ Punishment for

Hitting Bryce Harper Appropriate?, LOS ANGELES TIMES, May 8, 2012, available at http://www.latimes.com/sports/sportsnow/la-sp-sn-cole-hamels-poll-20120508,0,6967618.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+latimes%2Fmostviewed+(L.A.+Times+-+Most+Viewed+Stories).

5. Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975).

6. Hackbart v. Cincinnati Bengals Inc., 601 F.2d 516 (10th Cir. 1979).

7. Lestina v. West Bend Mut. Ins. Co., 501 N.W.2d 28 (Wis. 1993), superseded by statute, WIS. STAT. § 895.525(4m).

8. WIS. STAT. § 895.525(4m).9. Duke’s G.M.C., Inc. v. Erskine, 447 N.E.2d 1118, 1123

(Ind. Ct. App. 1983).10. Novak v. Virene, 586 N.E.2d 578, 580 (Ill. App. Ct.

1991).11. In a case involving injuries sustained by a golfer, the

Supreme Court of Ohio held that there is no liability for injuries caused by negligent conduct in sporting events. See Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990). A Texas court has likewise held that a sport participant cannot recover for another’s negligence. See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex. App.—Amarillo 1993, no writ).

12. Cotty v. Town of Southhampton, 880 N.Y.S.2d 656 (N.Y. App. Div. 2009).

13. Martin v. State of New York, 878 N.Y.S.2d 823 (N.Y. App. Div. 2009).

14. Anand v. Kapoor, 877 N.Y.S.2d 425 (N.Y. App. Div. 2009).


What Law

Applies?

A Minnesota company buys miles of steel pipe from a Mis-souri company to install in a pipeline in Wisconsin and Illi-nois. The seller manufactures

the pipe in its Louisiana mill and ships it directly to the construction sites. Years after the pipeline is installed, buried, and placed into service, the pipeline leaks, forcing the buyer to dig up and repair some of the pipe. The buyer sues the sell-er in a Texas court for a variety of contract and tort claims. What law applies to the buyer’s claims and the seller’s defenses?

No, this is not a question from one of Professor Weintraub’s Conflict of Laws exams. It is a simplified version of the facts of a case that I nearly tried last year. (The parties settled before trial.) And it highlights a foundational question in an increasing number of interstate disputes brewing in our civil courts—namely, “What law applies?”

So, how do courts in Texas determine what law governs? The analysis starts with two fundamental rules. First, by de-fault, courts apply the substantive law of the state in which the court sits—the fo-rum state.1 So when a party wants a court to apply another jurisdiction’s law, the party must ask the court to do so.2 Sec-ond, when asked to apply another state’s law, Texas courts—state and federal3—apply Texas’s choice-of-law rules (as op-posed to applying some other jurisdic-tion’s rules).4

Texas’s rules for choice of law are a mixture of statutory directives and com-mon-law doctrines, the latter of which are usually adopted—or at least adapted—from the RESTATEMENT (SECOND) OF CONFLICT OF LAWS. This article explains the basic analytical process un-der Texas’s choice-of-law rules for deter-mining what law applies to the issues in dispute in civil cases in Texas.

I. STEP ONE: IDENTIFY THE ISSUE AT HANDThe first step in a choice-of-law analysis is to identify the issue requiring such analysis. Courts analyze choice-of-law on a party-by-party, claim-by-claim basis;

By Hon. Dan HinDe

statutes vary widely among the states. In Tracker Marine, L.P. v. Ogle,32 then-Chief Justice Brister catalogued numerous ar-eas where Texas’s consumer protection laws may conflict with other states’ laws. So, depending on the issue, Texas’s DTPA may differ in consequential ways from another candidate jurisdiction’s consum-er-protection law.

This article only provides a sample of areas where Texas law differs from other states’ laws. Lawyers should look care-fully for issues that might raise true con-flicts of law between jurisdictions and research the law in each candidate state to unearth conflicts.

V. STEP FIVE: DETERMINE THE STATE WITH THE MOST SIGNIFICANT RELATION-SHIP TO THE ISSUEIf the court decides that an actual conflict of law exists, it must undertake a com-mon-law analysis, which is invariably governed by the various iterations of the most-significant-relationship test found in the RESTATEMENT (SECOND) OF CONFLICT OF LAWS (the “RESTATE-MENT”).

A. usually, Texas courts apply the tests articulated in specific sections of the RESTATEMEnTRepeatedly, the Texas Supreme Court has adopted the relevant provision of the RESTATEMENT when asked to articulate the appropriate test for de-termining which state’s law applies to a particular issue.33

So, for example, the Court has con-cluded that RESTATEMENT § 187 governs enforcement of contractual choice-of-law clauses (to the extent statutes such as those found in Chap-ters 271-274 of the Texas Business & Commerce Code do not apply).34 Similarly, when the contract lacks a choice-of-law clause, then the most-significant-relationship test for con-tracts found in RESTATEMENT § 188 applies.35

Likewise, for tort claims the Court adopted the tort version of the most-

4. Perfection of security interests,17

5. Transactions involving $1 million or more,18

6. Construction or repair of improve-ments,19

7. Sale, lease, or exchange of goods for $50,000 or less,20 and

8. Contracts made over the internet.21

Statutes lay down choice-of-law rules on these issues. But if no statute controls, then the next step is to determine wheth-er there is an actual conflict of laws.

IV. STEP FOUR: IDENTIFY THE ACTUAL CONFLICT OF LAWIf the parties dispute what law applies and no statute controls, then the court must determine whether there is an ac-tual conflict of laws.22 The reason is sensible and pragmatic: If, for example, Texas and Illinois law on an issue do not differ, courts need not expend time and resources to decide which state’s law will apply because the issue’s outcome will be the same. If the laws do not conflict, then Texas courts will simply apply Texas law.23

To show an actual conflict, the parties must first identify which states’ (or coun-tries’) laws might apply. After identifying the “candidate” jurisdictions, the parties must show how those states’ laws conflict with each other.24

For instance, Texas recognizes the tort of negligent misrepresentation,25 but oth-er states do not.26 Conversely, Texas does not recognize negligent infliction of emo-tional distress,27 but other states do.28

Recovery of attorneys’ fees is another example of an issue that might raise a conflict. Texas law permits claimants to recover attorneys’ fees if they prevail on a contract claim.29 Other states, however, do not permit an attorneys’ fee award un-less the contract includes a fee-shifting clause.30

Another example is whether the eco-nomic-loss rule bars certain tort claims. Texas’s approach to determining whether the rule bars a tort claim may differ from the other candidate jurisdictions’ laws.31

Additionally, consumer protection

the law that applies to one cause of action or party may not necessarily apply to oth-ers.5 It may not be clear what law governs a claim or defense. Or, there may be no dispute as to what law governs the claim or defense, but there may be uncertainty on what law governs a witness’s claim of privilege.6 Knowing which issues require analysis is the first step in choice of law.

II. STEP TWO: IS THE ISSUE SUBSTANTIVE OR PROCEDURAL?After identifying the issue requiring analysis, the next step is to determine whether the issue is substantive or pro-cedural. If the issue is procedural, then Texas law governs—the court need not go further.7 If the issue is substantive, then the court must undertake a choice-of-law analysis.8 An issue is procedural if it is governed by a Texas rule or statute of procedure.9 Texas rules of construction apply when determining whether a Texas rule or statute is procedural.10

For example, limitations is a substan-tive defense if the statute creating the right of action establishes a limitations period.11 But if that statute does not es-tablish a limitations period, then limita-tions is a procedural defense governed by Texas law.12

So, if the issue under examination is procedural, Texas law governs and the analysis ends. But if the issue is substan-tive, courts move to the next step—statu-tory directives.

III. STEP THREE: DO ANY STATUTES GOVERN THE CHOICE-OF-LAW ANALYSIS?After determining that the issue is sub-stantive, the next step is to determine whether any Texas statutes govern the choice-of-law analysis.13 On this point, the Legislature has enacted several stat-utes setting the rules for determining what law to apply for various issues. Here is a nonexhaustive list of areas where the Legislature has enacted statutory choice-of-law rules:

1. UCC contracts,14

2. Commercial leases,15

3. Investment securities,16


significant-relationship test in RE-STATEMENT § 145.36 For some tort claims, the RESTATEMENT lays out a more specific test. For example, § 148 applies to fraud.37

And while the courts have not ex-plicitly so held, it appears that the law that applies to a claim for relief usually governs the substantive affirmative de-fenses raised in opposition to that par-ticular claim.38

B. Sometimes, Texas courts apply tests from RESTATEMEnT comments insteadAs can be seen, the most-significant-re-lationship tests call for courts to exam-ine various contacts with the candidate states. But counsel should not fall into the trap of simply listing a flood of con-tacts with their preferred jurisdiction. The Supreme Court has made clear that it is the quality of the contacts that matters—not the quantity—when de-termining the state with the most sig-nificant relationship.39

Although the Texas Supreme Court invariably looks to the RESTATE-MENT for deciding which choice-of-law test to apply, the Court does not al-ways adopt a specific RESTATEMENT test, but rather adapts one. For exam-ple, in Ford Motor Co. v. Leggat,40 the Court examined what choice-of-law rules govern claims of privilege. In that case, the Court appeared to adopt RE-STATEMENT § 139, which favors dis-closing the communication unless it is privileged in both the forum state and the state with the most significant rela-tionship.41 But on closer examination, the Ford Motor Court did not actually adopt the test in § 139, but instead con-cluded that a witness or party’s claim of attorney-client privilege is governed by the state with the most significant relationship to the communication.42 The Court found this most-significant-relationship test in comment e of § 139.43 So instead of accepting § 139 it-self as the test for privilege, the Court actually adopted the test in comment e.

The moral of the story is that counsel should carefully read the opinions ana-lyzing and applying the various RE-STATEMENT tests to ensure that they understand how the courts will apply the test to the issue at hand.

VI. CONCLUSIONChoice of law in Texas can be simple, or it can be complicated. If no one raises the question whether another state’s law applies, Texas law applies. If the issue is procedural, Texas law applies. If there is no conflict between the different states’ laws, Texas law applies. Otherwise, there are various statutory and common-law tests that Courts use to make the deci-sion.

In the end, the best way to persuade the Court is to make it easy for the Court to rule in your favor. Do this by following the steps in this article: clearly identify which issues require analysis and how the laws conflict, set forth the appropri-ate statutory or RESTATEMENT tests that apply, and marshal your evidence


according to each test factor. Counsel who embrace this analytical approach are more likely to persuade the trial court and more likely to protect the decision on appeal.

The Honorable Dan Hinde is the Judge of the 269th District Court in Harris County, Texas. endnotes1. Klaxon Co. v. Stentor Elec. Mfg. Co., 61 S. Ct. 1020, 1022 (1941).2. See, e.g., Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 650

(Tex. App.—Houston [14th Dist.] 1995, writ dism’d w.o.j.), mand. denied sub nom. Deloitte & Touch LLP v. Fourteenth Court of Appeals, 951 S.W.2d 394 (Tex. 1997) (orig. proceeding).

3. For state law issues, federal courts apply the choice-of-law rules of the forum state. Day & Zimmerman, Inc. v. Challover, 96 S. Ct. 167, 167-68 (1975) (per curiam) (reversing the Fifth Circuit for not applying Texas choice-of-law rules); Klaxon, 61 S. Ct. at 1022; De Aguilar v. Boeing Co., 47 F.3d 1404, 1413 (5th Cir. 1995).

4. Day & Zimmerman, Inc., 96 S. Ct. at 167-68.5. Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 727,

modified on other grounds, 355 F.3d 356 (5th Cir. 2003); see Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205-06 (Tex. 2000) (explaining that choice-of-law tests must be applied by issue, not by case); Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (noting that the choice-of-law test in a class action should be applied as to each class member, not to the class as a whole).

6. See, e.g., Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex. 1995) (orig. proceeding).

7. California v. Copus, 309 S.W.2d 227, 230 (Tex. 1958); Hill v.


Perel, 923 S.W.2d 636, 639 (Tex. App.—Houston [1st Dist.] 1995, no writ).

8. Copus, 309 S.W.2d at 230-31; Hill, 923 S.W.2d at 639.9. Owens-Corning Fiberglass Corp. v. Martin, 942 S.W.2d 712, 721

(Tex. App.—Dallas 1997, no writ).10. Penny v. Powell, 347 S.W.2d 601, 602 (Tex. 1961).11. Hill, 923 S.W.2d at 639.12. Copus, 309 S.W.2d at 230-31; Hill, 923 S.W.2d at 639.13. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §

6(1) (1971) [hereinafter, RESTATEMENT] (“A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.”).

14. TEX. BUS. & COMM. CODE ANN. § 1.301 (Vernon 2009).15. Id. § 2A.105.16. Id. § 8.110.17. Id. §§ 9.301-.306 & 3.316.18. Id. ch. 271.19. Id. ch. 272.20. Id. ch. 273.21. Id. ch. 274.22. Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994);

Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 650 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d w.o.j.), mand. denied sub nom. Deloitte & Touch LLP v. Fourteenth Court of Appeals, 951 S.W.2d 394 (Tex. 1997) (orig. proceeding).

23. Weatherly, 905 S.W.2d at 650.24. Weatherly, 905 S.W.2d at 650.25. Federal Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex.

1991).26. See, e.g., Hutteger v. Davis, 599 S.W.2d 506, 514-15 (Mo. 1980)

(Welliver, J., dissenting).27. Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993) (holding that

Texas does not recognize negligent infliction of emotional distress).

28. See, e.g., Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo. 1983); Schultz v. Barberton Glass Co., 447 N.E.2d 109, 113 (Ohio 1983); Rodriguez v. State, 472 P.2d 509, 520 (Haw. 1970).

29. TEX. CIV. PRAC. & REM. CODE § 38.001 (Vernon 2008).30. E.g., Tower Props. Co. v. Allen, 33 S.W.3d 684, 690 (Mo. Ct.

App. 2000) (Missouri law).31. Compare Formosa Plastics Corp. v. Presidio Eng’rs &

Contractors, Inc., 960 S.W.2d 41, 44-47 (Tex. 1997) (exploring Texas law on the economic-loss rule) with Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir. 1996) (explaining New York’s test).

32. 108 S.W.3d 349, 352-54 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

33. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206 n.2 (Tex. 2000) (listing several cases in which the Court applied various provisions of the RESTATEMENT).

34. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990).

35. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984).36. Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979).37. See, e.g., Swanson v. Schlumberger Tech. Corp., 895 S.W.2d

719, 732-33 (Tex. App.—Texarkana 1994), rev’d on other grounds, 959 S.W.2d 171 (Tex. 1997); Prairie Prod’g Co. v. Anglina Hardwood Lumber Co., 882 S.W.2d 640 (Tex. App.—Beaumont 1994, writ denied), modified on other grounds, 885 S.W.2d 640 (Tex. App.—Beaumont 1994, writ denied).

38. See RESTATEMENT at §§ 161, 164, 168-170, 198-207. This can get complicated. Consider a case where plaintiff sued for fraud, asserted fraudulent concealment against a limitations defense, and raised fraudulent inducement against a counterclaim for breach of contract. Should the same law that governs the plaintiff’s claim for fraud apply to its fraudulent concealment rebuttal? What if the limitations defense is procedural and therefore governed by Texas law, but the fraud cause of action is governed by another state’s law? Should the same law that governs plaintiff’s fraud claim apply to its affirmative defense of fraud against the contract counterclaim? What if the contract is governed by a different state’s law?

39. See Gutierrez, 583 S.W.2d at 319.40. 904 S.W.2d 643, 646-47 (Tex. 1995) (orig. proceeding).41. Id. at 647.42. Id.43. Id.


Equal Access ChampionsWhat does it take to become an “Equal Access Champion”? The firms and corporations listed below have signed 5-year commitment forms that indicate they will uphold a pledge to provide representation in a certain number of cases each year, based on the number of attorneys in the firm or legal department. The goal is to provide pro bono representation in at least 1,500 cases through the Houston Volunteer Lawyers

Program each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

large Firm championsAndrews Kurth LLP

Baker Botts L.L.P.

Bracewell & Giuliani LLP

Fulbright & Jaworski L.L.P.

Locke Lord LLP

Vinson & Elkins LLP

corporate championsBaker Hughes Incorporated

BP America Inc.

CenterPoint Energy, Inc.

ConocoPhillips

Exxon Mobil Corporation

LyondellBasell

Marathon Oil Company

Port of Houston Authority

Shell Oil Company

intermediate Firm championsGardere Wynne Sewell LLP

Haynes and Boone, L.L.P.

King & Spalding LLP

Mid-Size Firm championsAkin Gump Strauss Hauer & Feld LLP

Adams & Reese LLP

Baker Hostetler LLP

Beirne, Maynard & Parsons, L.L.P.

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Williams & Aughtry

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Jones Day

Morgan, Lewis & Bockius LLP

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Small Firm championsAbraham, Watkins, Nichols,

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Solo championsLaw Office of O. Elaine Archie

Peter J. Bennett

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Chaumette, PLLC

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Evangeline Mitchell, PLLC

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Technology-Assisted Review:

What Is It and Why Should You Care?

By gary Wienerrequire several iterations before the litigators are confident enough to bulk-code the rest of the document corpus.

The goal of TAR is to create a comput-erized method of automatically tagging as many non-responsive documents as possible to ensure consistency and ac-curacy in the document review coding metadata. As U.S. federal courts have ac-knowledged, there is no review tool that guarantees perfection,2 nor is perfec-tion expected3 – only a good faith, sys-tematic, defensible method of applying technology to organize the document corpus.

What’s So Great about Human Doc Review?Rather than ask why use TAR, the better question might be: What’s so wonder-ful about the “gold standard” of human document review in the first place? As commentator Ralph Losey, National e-Discovery Counsel for Jackson Lewis, LLP, has noted, “Experiments in TREC [the Text Retrieval Conference studies, a

project of the National Institute of Standards and Technology to scientifically measure computer recall and precision to that of hu-mans]... showed that we humans are very poor at making rel-evancy determinations in large data sets.”4

Consider, if you will, the distractions facing a typical document re-

viewer, as opposed to an attorney who has chosen to make a career of docu-ment review. The former is often an un-employed attorney, contracted into a re-view “bullpen” by an agency hired by a law firm to handle first-pass review. At best, contract review attorneys are paid $25-35 per hour, which is substantially less than what a permanent associate would make for the same work. For this small fee, the reviewer is expected to sit in front of a computer and view docu-

“feline.” In this manner, documents can be compared not only for similarities in the exact word patterns used, but also in the meaning of the words.

In order for TAR to be useful, the computer axiom “garbage in, garbage out” definitely applies. An experienced document reviewer must carefully and consistently code a “seed set” of docu-ments for responsiveness, privilege, and any other tagging fields that the litiga-tion may require. Once this “seed set” of a few thousand documents has been coded, TAR can begin its work.

The TAR engine examines a new document and looks for already-coded documents that are conceptually and structurally similar to the new one. The engine then compares the documents it finds and examines which coding deci-sions were made, and using that infor-mation, predicts the likelihood that the new document will be coded as respon-sive or non-responsive, privileged or non-privileged, and so on.

TAR is commonly described in the liti-gation support industry as “predictive coding.” This term is mislead-ing, as it implies that the TAR engine is mak-ing the responsiveness and privilege calls for each document on its own, without human input. TAR can pre-dict the likelihood that (based on previously-established patterns) the new document might be accurately coded a particular way, but it remains up to humans to fi-nally determine whether the coding pre-dictions should be applied.

Once the engine has generated its predictions, random sampling of docu-ments is used to check the technology’s accuracy. It is quite likely that the pa-rameters for prediction will need to be refined and another random sample of documents will need to be checked for accuracy; and indeed, the process may

N ow that technology-assisted review has begun to receive the “Good Judicial-Keeping Seal of Approval,” the legal media and blog headlines

scream out like plot points from an Isaac Asimov novel: “Computers will take over document review!” “Half of all liti-gators will lose their jobs to computers!” “The practice of law will die due to tech-nology!” Have no fear; litigators are not going to be obsolete.

Just recently, one federal court (with another case awaiting decision) and one state court have approved the initial use of technology-assisted review (“TAR”) to cull huge electronic document sets in preparation for discovery production,1 thus maximizing the tremendous lever-age and cost savings that technology can provide modern litigation. But to suggest that even the most sophisticated concep-tual-recognition algorithms will replace the review skill of a trained attorney is like suggesting that the pneumatic nail gun would render carpenters obsolete.

TAR is a powerful tool that assists with reviewing massive documents for discovery responsiveness and privilege. But it is only that – a tool. It works much better than the legacy “eyes on the page” method of manual, linear document re-view. But unless Asimov’s storylines be-gin to come true and computers achieve sentient consciousness, TAR will not replace lawyers. In fact, it should make litigation more efficient, leading to hap-pier clients and larger billable bases.

What Is TAR?TAR utilizes computer pattern-matching algorithms to identify and index not just the keywords within documents, but their conceptual relationships as well. Conceptual indexing allows the index engine to recognize patterns in text and relate them to each other, so that it can draw an inference, for example, that the concept “cat” is related to the concept


likely that some will interpret the same document’s meaning and context dif-ferently, because, like it or not, review-ers bring their own life experience into the review. Hence, the resulting coding will be inconsistent, but almost impos-sible to correct during the quality as-surance stage. Finally, the potential for the reviewers to suffer frequent lapses of concentration, and, therefore, errors in review and coding, is rife, as is the po-tential for inconsistent application of the review guidelines.

These dangers are not merely theoreti-cal, as a legal malpractice case currently working its way through a California state court illustrates. This case pits a plaintiff’s company against its for-mer outside counsel, accusing them of improperly disclosing some 3,900 privileged documents and/or failing to adequately supervise contract docu-ment reviewers.5 Indeed, a landmark scientific study as far back as 1985 proved that lawyers (who considered themselves expert in keyword search)

a second distraction.Should the reviewer’s document to-

tals lag for any reason, such as random assignment of excessively long docu-ments, computer glitches or personal distractions, the supervising associate may question whether the contractor’s work output justifies keeping him on the review project. With so many oth-er unemployed attorneys desperate for paying work, and given that there is no requirement that a document reviewer be a licensed attorney in the first place, the contract reviewer’s continued em-ployment is always uncertain. He can be (and frequently is) replaced in a flash. This continual lack of job security poses yet a third significant distraction.

Notice that we have not even dis-cussed the quality of the document re-view. Even if we could somehow hike the pay and improve the morale of contract reviewers, we still face the silent threat of inconsistency in coding. If multiple copies of the same document are re-viewed by different reviewers, it is very

ments for eight to twelve hours a day, five or six days a week, for the duration of the project, knowing that he will be unemployed again upon the project’s completion. So, a reviewer generally starts the project with one major distrac-tion already in place: poor morale.

The reviewer must read documents for responsiveness and privilege, based upon guidelines typically overseen by an associate of the law firm, who is on-site supervising the review team. Pre-suming that the associate understands the review guidelines well enough to ef-fectively communicate them to the con-tract reviewers, the task of the reviewer is to slog through documents as quickly, efficiently and accurately as possible. The associate may also suffer from poor morale, preferring to be back in the of-fice earning face time with the partners rather than working hidden from their view. Perhaps this frustration spills over in the direction of the contract review-ers, who simply hope to remain em-ployed. This potential conflict provides


who were asked to use Boolean search-ing to find 75 percent of the relevant documents in a 40,000-document case, actually only found 20 percent.6 More recent studies have concluded that “[o]n every measure, the performance of...computer systems was at least as ac-curate (measured against the original review) as that of human re-review.”7

Why TAR?To the extent that attorneys try to cull the corpus of potentially-responsive documents prior to human review, they have traditionally done so using key-word searches. Every attorney who went to law school during the computer age learned the basics of keyword and Bool-ean search logic in their first year of law school, thanks to Lexis and Westlaw. Most lawyers think they have become expert in the practice. However, search-ing unstructured, stream-of-conscious-ness text is not the same as searching within carefully-proofread case law. At least one federal court has commented that “determining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) and re-quires expert testimony that meets the requirements of Rule 702 of the Federal Rules of Evidence.”8 In other words: key-word search is no job for amateurs.

Ralph Losey has, quite accurately, analogized keyword search to the child-hood card game of “Go Fish.”9 Even be-fore the issues in the litigation have been fully assessed for validity or scope, at-torneys assemble keyword queries based on words that they guess the responsive documents are likely to contain, in ad-dition to brainstorming for possible synonyms, misspellings, and acronyms. In truth, the litigators cannot have any idea what results they are likely to see returned from their searches, nor can they be sure that they have anticipated every possible turn of phrase, industry jargon, or creative mistyping for each of these terms that might be present in a


responsive (or, indeed, “smoking-gun”) document. They are “designing keyword searches in the dark, by the seat of the pants...”10

In contrast, TAR uses the actual in-dexed content of the documents to for-mulate its coding predictions for the first-pass review. The conceptual pat-terns within each document are ana-lyzed mathematically, and the relation-ships of those concepts to each other form the basis of the TAR engine’s pre-dictions. No keyword brainstorming needs to take place, as the TAR engine can compare the concepts within the current document to concepts that it has already identified in the previously-reviewed documents and base its predic-tions accordingly.

Unlike humans, a computer won’t lose concentration due to distraction, bit-terness, or confusion; TAR predictions are applied consistently throughout the corpus of documents. Once done, coun-sel must go back and, using statistical random sampling, spot-check the accu-racy.11 The beauty of TAR is that, if the engine’s predictions are not sufficiently accurate, the input can be refined and the corpus can easily be rerun. The pre-dictg sampleg refineg rerun process can continue through as much iteration as necessary, until a suitable degree of confidence has been obtained.

TAR: Part of This Complete BreakfastUsing TAR to locate responsive docu-ments and identify potentially-privi-leged files does not conclude the inquiry. While TAR is a very useful tool, it is just that – a tool. It limits the need for hu-man review of documents to those that have been identified as relevant. TAR is not intended to make the responsiveness and privilege calls by itself, and no soft-ware vendor should suggest otherwise.

Also, not all TAR platforms perform their tasks exactly the same way. While the courts that have addressed the issue so far have authorized the use of predic-tive coding generally, no one suggests that the technology is infallible. If the

TAR software is flawed or if one party is not receiving the types of documents that it thinks should be produced, the receiving party can still object to the sufficiency of the production. Also, the skill and craftsmanship of the attorneys who train the TAR algorithms is crucial. If the expert reviewer is inconsistent in her initial relevance calls, the computer predictions based on those calls will also be inconsistent.

Keyword and Boolean searches still have a very significant place in manag-ing a corpus of documents for review. TAR is not meant to replace litigators or the way they have been handling dis-covery. It is simply another way to help make the traditionally inefficient pro-cess of document review cheaper, faster and more efficient.

Attorneys will have to learn to get the most out of the TAR technology in or-der to be able to use it most effectively, but should never fear being replaced by it. As Ralph Losey writes, “[Y]ou must never let the tail (the software) wag the dog (legal search). Attorneys must at all times remain in control and not abdicate their responsibility as legal advisers... In other words, even the best software is only as good as the lawyers who use it.”12

Gary Wiener (Twitter: @GaryWiener) is an e-discovery instructor and subject matter expert for Autonomy, an HP company. He also is a member of The Houston Lawyer Editorial Board.

endnotes1. See Monique da Silva Moore, et. al. v. Publicis Group SA, et

al., 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24. 2012), and Global Aerospace Inc., et al, v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012), in which the judges have permitted use of TAR; see also Kleen Products, LLC v. Packaging Corp. of America, No. 10 C 5711 (N.D. Ill. Apr. 8. 2011), pending decision as of this writing, in which the judge is being asked to order (rather than merely permit) TAR.

2. Da Silva Moore, supra (S.D.N.Y. Apr. 25, 2012).3. See, e.g., Pension Comm. of the Univ. of Montreal Pension

Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456 (S.D.N.Y. 2010).

4. Ralph Losey, “Secrets of Search – Part One,” e-Discovery Team, http://e-discoveryteam.com/2011/12/11/secrets-of-search-part-one/ (last visited May 20, 2012).

5. J-M Mfg. Co., Inc. v. McDermott Will & Emery, No. BC463832 (Cal. Supr. Ct. L.A., July 28, 2011).

6. David C. Blair & M.E. Maron, An evaluation of retrieval effectiveness for a full-text document-retrieval system, COMMUNICATIONS OF THE ACM, Volume 28, Issue 3 (March 1985).

7. Herb Roitblatt, Ann Kershaw and Patrick Oot, “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review,” Journal of Am. Soc. for Information Science & Technology, 61(1):70 80 (2010).

8. Equity Analytics LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008).

9. Ralph Losey, “Child’s Game of ‘Go Fish’ is a Poor Model for e-Discovery Search,” e-Discovery Team, http://e-discoveryteam.com/2009/10/04/childs-game-of-go-fish-is-a-poor-model-for-e-discovery-search/ (last visited May 20, 2012).

10. William A. Gross Const. Assoc., Inc. v. Am. Mfrs. Mutual Ins. Co., 56 F.R.D. 134, 135 (S.D.N.Y. 2009).

11. See, e.g., In Re Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. 2007) (“Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness”); Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010) (plaintiff “failed to perform critical quality control sampling to determine whether their production was appropriate and neither over-inclusive nor under-inclusive.”).

12. Ralph Losey, “Predictive Coding Based Legal Methods for Search and Review,” e-Discovery Team, http://e-discoveryteam.com/2012/03/25/predictive-coding-based-legal-methods-for-search-and-review/ (last visited May 21, 2012).

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Houston Lawyers Who Made a Difference: John L. Hill

By Hon. MarK DaViDSon

There is probably no lawyer in Texas history who accomplished more tasks in a greater number of areas than John Hill. Whether as a lawyer,

a jurist, or an official in the Executive Branch of Government, his entire career was one of exceptional achievement.

A few years out of law school, he brought together a group of young lawyers of excep-tional ability to found the firm of Hill, Brown, Kronzer and Abraham. The firm met with great success for their clients and acquired a reputa-tion of being among the elite litigation firms in the state. In an aviation case, Hill arranged for an entire wing of a commercial airplane to be

brought into the Harris County Courthouse as an exhibit.

In 1966, Governor John Connally named Hill to be the Secretary of State. He transformed an office that was then little known outside of Austin. Instead of an office that did little more than receive documents signed by the gover-nor and the occasional proclamation, the office became the depository for Uniform Commer-cial Code Filings, bringing Texas into the era of modern commerce. That experience whetted his appetite for service in State Government, and in 1972 he was elected Texas Attorney General. He expanded the role of the office from just representing state agencies to one that represented Texans. He recruited a team

of young aggressive law-yers who litigated cases in areas as diverse as child support collection, environmental protection and consumer advocacy. In 1984 he was elected Chief Justice of the Su-preme Court of Texas. Many of his opinions advanced Texas law, and his administration of the Court was recognized by all to be faultless.

His accomplishments in any one of those roles would have made for a remarkable ca-reer. He transformed his life several times. In each of his jobs, he achieved a level of success that made a difference for Texas and Texans.

In celebration of the 175th year of Texas independence in 2011, Judge Mark Davidson wrote an article for each issue of the Houston Bar Bulletin on Houston lawyers who have had a significant impact on the law, the legal profession and those served by the law.

Being so well received, his column moves this year to its permanent home in The Houston Lawyer.


Tax statements are to be mailed “by Octo-ber 1, or as soon thereafter as practicable”.7

Delinquency Date In most cases, the tax becomes delinquent if it is not paid before February 1 of the year following the year for which the tax is im-posed.8 For example, the tax for year 2011 is due when the bill is issued, but must be paid not later than January 31, 2012 to avoid the imposition of late payment penalties and interest. Mailing of payment on January 31 is sufficient to avoid delinquency, provided there is a January 31 postmark on the pay-ment envelope.9

If a tax statement is issued after January 10 of the year following the applicable tax year, then the delinquency date for the taxes invoiced is “postponed to the first day of the next month that will provide a period of at least 21 days after the date of mailing for payment of taxes...”10

An exception exists for an owner on active military duty during a war or na-tional emergency.11 The delinquency date is postponed until after the owner returns from active duty.

Penalties If a tax is not paid before it becomes de-linquent, then substantial penalties are added to the amount due.12 A penalty of 6% of the amount of the principal due (not 6% per annum) is imposed immediately on February 1, and an additional penalty equal to 1% of the “base tax” amount is imposed on the first day of each subse-quent month. The total penalty becomes 12% of the base tax amount on July 1, and it is capped at that amount.

Interest Unpaid taxes accrue interest at the rate of 1% per month, beginning on the date the taxes become delinquent.13

With penalties and interest added, a taxpayer will be sued for the amount of the “base tax” plus an additional 7% if paid in February; 9% if paid in March; 11% if paid in April; 13% if paid in May; 15% if paid in June; 18% if paid in July; and an additional 1% interest each month thereafter.

What Every Lawyer Should Know About

Defending a Property Tax Suit

By MicHael lanDruM

In spite of meticulous planning, many practitioners may find themselves faced with a client who has been unfortunate enough to be served with a suit for col-lection of delinquent ad valorem taxes. There are statutes, rules and practices pe-culiar to delinquent tax cases.1

Ad Valorem Tax BasicsAd valorem taxes are levied against both residential and commercial real property, and against “business personal” prop-erty.2 The tax is based on an appraised value established by the county appraisal district. The appraisal district certifies its tax roll, which describes all taxable prop-erty in the county and states the value determined for each property account.

Each individual taxing jurisdiction then calculates its tax amount by applying its tax rate to the appraised value, and issues a tax statement.

Lien A lien to secure the payment of taxes au-tomatically attaches to all taxable proper-ty on January 1 of each year.3 There is no requirement that an instrument be filed for the lien to be perfected.4

The tax lien is superior to all other claims, except claims against the estate of a decedent for last illness, funeral and burial expenses and survivor’s allowance; recorded restrictive covenants; and re-corded easements.5

Due date Ad valorem taxes are due when invoiced.6


Attorney Fees Attorney fees shall be awarded to the tax-ing jurisdiction if suit is filed and a tax is not paid before the first of July following the date of delinquency.14 The attorney fee is set by contract between the taxing jurisdiction and its counsel but may not exceed 20% of the sum of the delinquent tax, statutory penalty and interest collect-ed.15 The award of attorney fees is manda-tory and the court is without discretion to award a different amount.16

Costs In addition to delinquent taxes, statutory penalty, interest and attorney fees, taxing units are entitled to recover court costs, cost for filing a notice of lis pendens, ex-penses of a tax foreclosure sale, expenses for identifying the property and deter-mining the identity and location of neces-sary parties, and reasonable ad litem at-torney fees determined by the court.17

Liability The owner of the subject property on Jan-uary 1 of the tax year is personally liable for the payment of the tax. A conveyance of the property after January 1 does not transfer the personal liability with the title.18 A current owner may not be held personally liable for a tax assessed before his ownership.19 One is not relieved of personal liability to a taxing jurisdiction by his contract with a third party.20

A buyer of business personal property can be personally liable for unpaid taxes coming delinquent prior to the sale, up to the amount of the purchase price.21 The statute requires a buyer to retain from the purchase price an amount equal to the amount of delinquent taxes.

CitationCitation in a delinquent tax suit is dif-ferent than citation issued in other civil cases. Special provisions relating only to tax suits are found in Texas Rule of Civil Procedure 117a. It is not required that a copy of a petition be served with a cita-tion in a delinquent tax suit, provided the citation complies with Rule 117a.

The citation must contain:• A brief description of the property

against which the tax is claimed;• The amount of taxes alleged to

be owed to the plaintiff taxing unit;• A statement that the plaintiff

seeks collection of the delinquent taxes and all penalties, interest and costs accrued until the date of final judgment; and

• Identification of all other taxing units that may be entitled to bring a claim for delinquent taxes.

The citation will also warn that the suit is brought for any additional taxes that may become delinquent after the suit is filed and before the entry of final judg-ment.

TrialParties The parties to a tax suit may include all taxing jurisdictions in which the subject property is located and to which delin-quent taxes are owed. These “other taxing units” may intervene in the suit “without the necessity of further citation or notice to any parties to such suit.”22

A plaintiff filing a delinquent tax suit “shall join other taxing units that have claims for delinquent taxes against all or part of the same property.”23 Failure of a taxing unit to intervene in a suit before final judgment extinguishes the lien of that entity.24

Appropriate defendants in a tax suit include not only the title owner(s) of the property as of January 1 of each year for which taxes are sought, but also all per-sons owning title to the property at the time of the suit and all persons claiming a lien interest.

While a lien holder is not personally li-able for payment of the delinquent taxes, it has a constitutional right to notice of the suit that could extinguish its lien claim.25 Lien holders are not liable in per-sonam, but judgment against their interest in the property, in rem, may be entered. As the tax lien is superior, the inferior lien will be extinguished by the tax fore-closure sale, even though the lien holder

is not personally liable. As in any civil case, an attorney ad li-

tem must be appointed in tax delinquency matters in which a necessary party can-not be located and served by any permis-sible means.26 In all real property suits, “the court shall appoint an attorney to defend in behalf of such owner or own-ers [cited by publication], and proceed as in other causes where service is made by publication.”27 A court’s failure to appoint an attorney ad litem to represent a de-fendant who has not appeared following publication service is reversible error on the face of the record.28

AnswerIt should go without saying that it is al-ways good practice to file a written an-swer, as dozens of default judgments in tax suits are signed each week. The only truly viable defenses to a tax suit are af-firmative defenses.

Defenses That Work1. Non-ownership of real property on

January 1 of the appropriate year.29 2. The property is/was not situated

within the taxing jurisdiction claim-ing the taxes.30

3. Payment of the taxes and any lawful penalties, interest and costs.

4. Limitations.31

a. For taxes levied against real prop-erty, the limitation period is 20 years.

b. For personal property taxes, the period is 4 years.

c. Limitations begin running on the date taxes become delinquent.

5. Not technically a defense, but a solu-tion for some – if the taxes sought are levied against the residence home-stead of a person who is either 65 years of age or older, or is disabled, the suit will be abated and collection of taxes deferred.32

Defense based on lack of notice Certain notices of delinquency are re-quired to be mailed to property own-ers.33 In certain cases, failure to send these notices can result in the post-


ponement of the delinquency date. Defenses that do not work “The property is over valued.” The dis-trict court is without jurisdiction to al-ter a valuation that has not been timely appealed.34 “We’ll pay the taxes, but the penalties are outrageous.” The penalties are statutory and mandatory.

Evidence Certified tax statements are admissible without further predicate and are prima facie evidence of the tax due. The certified tax statements admitted into evidence also stand as proof that the taxing units “complied with all requirements of law” pertaining to the levy of the taxes and the prerequisites established by law for the collection of penalties and interest pro-vided for by statute.35 The presumption is rebuttable, and the defendant assumes the burden of proving payment, lack of notice, or another defense.36

Judgment The judgment in a tax case will award monetary amounts for all taxes that were delinquent on the date of the judgment, all accrued penalties and interest, collec-tion costs (attorney fees, title search fees, etc.) and court costs. The judgment will be entered in favor of all taxing jurisdic-tions that are joined in the case as plain-tiffs and intervenors.

The judgment will set forth the “ad-judged value” of the property.37 This is the market value of the property on the date of the judgment. If this adjudged value is less than the amount of the taxes and other amounts awarded in the judgment, then it is the amount of the minimum bid that will be accepted at a public tax sale. The judgment will also order the foreclo-sure of the tax lien.

Final judgment may be vacated A tax judgment may be vacated, even after it becomes final under the Texas Rules of Civil Procedure, if it is defective or defi-cient in any one of several particulars.38

This can occur only if there has not been a sale to a third party or if the purchaser at

the sale consents. A tax judgment can be vacated if the property is “struck off” to a taxing jurisdiction, meaning that the tax-ing jurisdiction elects to take the property in lieu of satisfaction of the judgment for money.39

Other AmountsClaims for amounts other than taxes can be brought in a tax suit. These “special as-sessments” relate to the real property that is the subject of the tax suit and they are imposed for one or more of the following purposes:

a. paving liens40 b. costs for demolition of dangerous

structures41 c. weed cutting and nuisance abate-

ment42

d. sewer improvements43 e. water district standby fees44 The special allowances afforded in tax

claims do not apply to special assess-ments. That is, there does not appear to be a provision that a certified statement reflecting a special assessment will be regarded as prima facie proof. Likewise, there is no statutory provision that man-dates the award of attorney fees in any specific amount. One may therefore re-quire proof on these claims.

On the other hand, there is no limita-tion period set out in the above statutes, and therefore no limitation exists that will bar suit by a governmental entity.45

SettlementInstallment agreements are permitted (but not mandated) by Texas Tax Code § 33.02. Installment agreements may not exceed 36 months in duration and do not abate penalties or interest at the rates described above. Execution of an install-ment agreement constitutes an admission of liability and tolls limitations.Discounts are prohibited.46

Post JudgmentTax saleTax foreclosure sales are conducted as are other judicial sales,47 under an order of sale issued by the District Clerk.48 A

sheriff’s deed will be issued, and a writ of possession will issue to the successful purchaser.49

Property is sold to the highest bidder for cash, provided that a bid exceeding the “minimum amount” is received. The minimum amount is the lesser of the ad-judged value of the property as stated in the judgment and the amount of all taxes, penalties, interest and costs set forth in the judgment.50 If no bid for the minimum amount or more is received, then the property may be “struck off” to the taxing unit51 and the minimum bid amount will be credited against the judgment.52

The sale of a property extinguishes all tax liens, but does not affect the personal liability of a fee title owner for the pay-ment of any amount not satisfied from the sale proceeds.53

When a taxing unit acquires title to a property through a tax sale, no tax lien attaches to the property for taxes that ac-crue after the taxing unit acquires title.54

Redemption right An owner whose property has been sold at a tax sale has the right to reclaim the property by paying to the purchaser the amount paid at the tax sale, plus an addi-tional amount.55 The right of redemption persists for two years following the date of the sale for residential homestead proper-ty, agricultural land or mineral interests, and six months for other real property. If a property is redeemed within the first year following the sale, the “premium” due the buyer is 25% of the sale price; if paid during the second year after the sale, the additional amount owed is 50% of the price.

Excess proceeds If a tax sale yields funds in excess of the amount of the judgment, plus collection costs, then the excess sale proceeds are placed in the registry of the court.56 The Tax Code provides a priority ranking for the distribution of the excess proceeds. Taxes accruing after the date of judgment and before the sale may be collected from the excess proceeds.57 Lien holders have


priority over former property owners.To claim all or a portion of the excess

proceeds, a petition must be filed within two years following the date the funds are deposited in the registry.58 The stat-ute specifies the matters that must be as-serted in the petition and the parties who are entitled to notice.59 If funds remain unclaimed after the expiration of the two year period, the funds escheat to the tax-ing authorities.60

Practice HintsThe best course of action is to help your clients avoid a delinquent tax suit. There are a few simple things that can be done toward that end:

• Make sure the appraisal district has your client’s current address. In Har-ris County, this can be checked at www.hcad.org. If it appears that the listed address is incorrect, a form for correcting the tax rolls can be down-loaded from the same site.

• An owner of business personal prop-erty must file a rendition each year before April 15.61 Failure to timely file a rendition report incurs a pen-alty equal to 10% of the tax owed on the property.62 Forms for rendition reports are available through the HCAD website.

• An owner may file a “Report of De-creased Value” for property that has decreased in value since the preced-ing year.63

• Watch for notices of valuation sent out by the appraisal district in the early months of the year and do not miss the deadline to file a value pro-test, which is ordinarily May 31.

• When representing a buyer of busi-ness assets, be sure that all delin-quent taxes are paid from the pro-ceeds of the sale, or your buyer may become liable for the taxes incurred before the sale.

What is Harris County Tax Court?The District Judges of Harris County es-tablished our tax court under Texas Tax Code § 33.71, by appointing two indi-

viduals to serve as masters in chancery to hear delinquent ad valorem tax disputes. The tax court’s purview is limited to de-linquent tax cases; it does not extend to a review of valuation issues, even if those is-sues have been properly brought in court.

If a jury fee is paid, the case is referred to district court for trial.64 The tax master is permitted to examine witnesses and to conduct pre-trial matters. The master re-ports her recommendation regarding final action to be taken to the district court.65

Thereafter, the district judge signs any or-der or judgment deemed appropriate.

Any party may appeal the recommen-dation of the tax master to the referring district court.66 Notice of the right to ap-peal may be given in open court or in writing by giving notice of appeal within ten days following the date of the recom-mendation. The notice of appeal must specify which of the tax master’s findings or conclusions are the subject of the ap-peal. The appeal is heard de novo in the district court.67 There is no fee or bond requirement.

Failure to appeal the tax master’s rec-ommendation does not preclude an ap-peal of a final judgment to the Court of Appeals.68

The Texas Tax Code’s provisions are generally inflexible and the amount of statutory penalty and interest imposed can increase the amount of liability sub-stantially. The best defense to a delin-quent tax matter is prevention.

Michael L. Landrum is Of Counsel to O’Donnell, Ferebee, Medley & Keiser, PC. He served as one of Harris County’s Tax Masters from 1996 to 2010. He is Board Certified in the specialty fields of Civil Trial Law and Civil Appellate Law by the Texas Board of Legal Specialization.

endnotes1. This article does not discuss the more involved topic

concerning the valuation of taxable property, exemptions, or the actual levy of taxes. Valuation issues are first addressed in administrative proceedings before the county appraisal district and its appraisal review board. Failure to pursue valuation related complaints through the administrative process generally precludes review in court. See generally Texas Tax Code, Chapter 42.

2. Tex. Tax Code § 11.01.

3. Id. § 32.01(a).4. Id. § 32.01(d).5. Id. § 32.05. 6. Id. § 31.02(a).7. Id. § 31.01(a).8. Id. § 31.02.9. Id. § 1.08.10. Id. § 31.04(a). 11. Id. § 31.02 (b). 12. Id. § 33.01(a).13. Id. § 33.01(c). 14. Id. § 33.48.15. Id. § 6.30(c).16. Aldine Independent School District v. Ogg, 122 S.W.3d 257

(Tex. App.—Houston [1st Dist.] 2003, no pet.)17. Tex. Tax Code § 33.48(a). 18. Id. § 32.07(a).19. City of San Antonio v. Toepperwein, 133 S.W. 416 (Tex.

1911).20. Robbins & Co. v. Roberts, 610 S.W.2d 854 (Tex. App.—

Amarillo 1980, ref. n.r.e.)21. Tex. Tax Code § 31.081.22. Tex. R. Civ. P. 117a(4).23. Tex. Tax Code § 33.44(a).24. Id. § 33.44(c).25. Murphee Property Holdings, Ltd. v. Sunbelt Savings Assn.

of Texas, 817 S.W.2d 850 (Tex. App.—Houston [1st Dist.] 1991, no writ).

26. Tex. R. Civ. P. 244.27. Tex. R. Civ. P. 759 (referring to suits for partition); see also

Tex. R. Civ. P. 244.28. Isaac v Westheimer Colony Ass’n., Inc., 933 S.W.2d 588,

591 (Tex. App. – Houston [1st Dist.] 1996, writ denied) (Absent strict compliance with the essential requirements of rule 244, a trial court commits reversible error) (citing Albin v. Tyler Prod. Credit Ass’n, 618 S.W.2d 96, 98 (Tex.App.—Tyler 1981, no writ)).

29. Tex. Tax Code § 42.09(b).30. Id. § 42.09(b).31. Id. § 33.05.32. Id. § 33.06.33. Id. § 33.04.34. Id. § 42.01.35. Id. § 33.47. 36. National Medical Financial Services, Inc. v. Irving Indep.

School Dist., 150 S.W.3d 901 (Tex. App.—Dallas 2004, no pet.).

37. Tex. Tax Code § 33.50.38. See id. § 33.56.39. See Tex. Tax Code § 34.01(j).40. Tex. Trans. Code § 311.092.41. Tex. Local Gov’t. Code Ch. 214.42. Tex. Health & Safety Code Ch. 342.43. Tex. Local Gov’t. Code Ch. 402. 44. Tex. Water Code § 49.231.45. See Tex. Civ. Pract. & Rem. Code § 16.061.46. Texas Constitution, Art. 3 §§ 51, 52; Art. 8, § 10.47. Tex. Tax Code § 34.01.48. Id. § 33.53.49. Id. § 33.51. 50. Id. § 34.01. 51. Id. § 34.01(c).52. Id. § 34.01(j).53. Id. § 34.01(q).54. State v. Moak, 207 S.W.2d 894 (Tex. 1948).55. Tex. Tax Code § 34.21.56. Id. § 34.021.57. Id. § 34.04(c).58. Id. § 34.03.59. Id. § 34.04.60. Id. § 34.03(b).61. Id. § 22.01.62. Id. § 22.28. 63. Id. § 22.03. 64. Id. § 33.76.65. Id. § 33.71. 66. Id. § 33.72.67. Id. § 33.74. 68. Id. § 33.74 (i).


THL: Where were you born and where did you grow up?Benoit: I was born in Baytown and grew up there. I attended Robert E. Lee High School in Baytown.

THL: Tell me about your family.Benoit: I come from a family of five kids. My father, Ronald Benoit, is an engineer who now works as a consul-tant for CSC. My mother, Brenda, is a former teacher. The last several years of her career she taught at an alternative school in Baytown where students with special issues such as disciplinary prob-lems or teen mothers were educated. My parents are terrific people who have constantly sacrificed for their children. When I became involved in debate they lobbied the school board to increase funding to the debate program. They were successful and we were one of the few schools that had the resources to travel to national tournaments. If they had to drive all night or

travel across the coun-try to be at a debate tournament or a soc-cer game or anything else, they always did it. They have always been focused on providing the best opportunities for their children, and I have great-ly benefited as a result.

I also had two sets of terrific grand-parents. Unfortunately my grandpar-ents on my Dad’s side have passed away. Polay and Beatrice Benoit were about as Cajun as you could possibly be and were two of the nicest people I have known. Adrian and Naomi Bowers are my grandparents on my Mom’s side. They are 92 and 91 and still going strong. We spend every Sunday after church with them for lunch along with our extended family, where the crowd frequently can be 20, 30 or more people.

I have three brothers and a sis-ter. Mom and Dad kept having kids until they finally had a girl on the fifth try. I am the oldest. My brother Brad is a partner at Bracewell & Giuliani. Brian is a process technician at Exxon. Brandon is a partner at the Baytown law firm of Reid Strickland & Gillette. My lit-tle sister, Brittney Pinkerton, is a mother of two newborn twins.

As for my immediate fam-ily, I am married to Christy Benoit. Christy attended West Texas State Universi-

ty (now West Texas A&M, much to my

The Houston Lawyer talked to new HBA

president Brent Benoit about his legal ca-

reer, his family, and his focus on issues that

impact the profession and our community.

discomfort) in Canyon, Texas and re-ceived a Masters Degree in Library Sci-ence from the University of North Tex-as. Christy taught school and for several years taught in a special program called Reading Recovery, designed to assist el-ementary kids that are having difficul-ties learning to read. She also served as a school librarian for several years. She is now a very busy stay at home mom. She has served as the president of the PTA at our kids’ school for two years and is a member of the Service League in Baytown.

My oldest daughter, Bryn, is 12 years old and attends Cedar Bayou Junior High School in Baytown. She plays the violin and loves to play volleyball, tennis, and basketball. She also enjoys writing. Bryn is very competitive, which she probably inherited from me.

My youngest daughter, Brooke, is 9 years old and attends Stephen F. Austin Elementary in Baytown. She plays the cello and also loves to play volleyball, tennis and basketball. She is very into bugs and animals. Most people say that Brooke’s personality is virtually identi-cal to mine. I have to admit sometimes it is a little spooky how similar she is to me.

Family and Community


My family is a huge part of my life. There is no way I could practice law and handle the various issues that arise in a legal career without their support and encouragement.

THL: Where did you go to college and law school?Benoit: I attended Houston Baptist Uni-versity and received a BBA in Econom-ics and Finance, graduating summa cum laude in 1993. I went to HBU because it had an active debate program and I was able to go on a full scholarship. It was a great school with terrific teach-ers (no TAs) and it allowed me to con-tinue to pursue debate, which I did for four years. Some of my college coaches are now attorneys. Matt Caligur was a coach and good friend, and he is now a partner at Baker Hostetler.

After HBU, I attended law school at the University of Texas. I graduated in 1996 with high honors. I was a Chan-cellor and a member of the Order of The Coif, as well as a member of the Texas Law Review. I was very active in the trial advocacy programs, where our teams won several awards at various national tournaments, including the ATLA National Mock Trial Tournament and the NITA Tournament of Champi-ons. I could not have chosen a better place to attend law school. Plus, I am a lifelong, die hard Texas Longhorn fan. I rarely miss home games and travel to quite a few away games.

THL: How did you become interested in law as a career?Benoit: Growing up, I always thought I would be a surgeon. In junior high, we held a debate in science class. I cannot tell you what we debated, but through that experience I became very interest-ed in oral advocacy. That led to a debate career that spanned both high school and college. As a result, I became less interested in being a surgeon and more interested in a career that would involve advocacy. In addition, the notion of representing clients who believed that

they were on the right side of a disagree-ment appealed to me. A legal career al-lowed me to help people in a profound way and to use the advocacy skills that I had developed.

THL: What are your areas of specialty and with what firms have you worked in your legal career?Benoit: After graduat-ing from law school, I went to work at what was then Liddell, Sapp, Zivley, Hill & LaBoon, LLP. I was a litigation associate for about three years when John Cornyn was elected Texas Attor-ney General and offered me the position of Special Assistant Attorney Gen-eral. It was an offer that was just too good to pass up. So, in 1999 I left Liddell Sapp and went to Austin. As Special Assistant Attor-ney General, I represented the State and its various agencies in high-profile litigation spanning a variety of issues, including antitrust, voting rights, and significant state contract matters. I also had the opportunity to work with a number of state lawmakers on impor-tant legal and legislative issues. I worked closely with Cornyn, Andy Taylor and a host of very talented attorneys such as the late Greg Coleman, Julie Pars-ley (a fellow Bayto-nian who went on to serve as a PUC Com-missioner), Linda Eads, Michael Mc-Caul (now a U.S. Congressman) and many others. After leaving the

Attorney Gener-al’s office, I was fortunate to be able to return to what

was then Locke Liddell & Sapp, LLP and what is today Locke Lord LLP. I am now a partner specializing in complex commercial litigation, particularly se-curities litigation matters, internal and governmental investigations, and cor-porate governance issues.

THL: Who were your mentors?Benoit: I have been lucky to have many really talented mentors. Early on in my career, I worked closely with Andy Tay-lor, a gifted and extremely hard working attorney. Andy not only was a mentor, but became a close friend. If it were not for him, I would not have been intro-

duced to the oppor-


tunity to work at the Attorney General’s office. I was also able to work with Jess Hall, who was one of the most talented trial attorneys I have ever seen. I also worked closely with Judge John Hill. I think that probably needs no elabora-tion. He was a legend, but he was an even better person. When I was considering whether or not to go the Attorney Gen-eral’s Office, he pulled me into his of-fice and closed the door and said “Don’t you ever tell anyone I told you this, but you have to go.” It was the single best career advice I ever received. Of course, the firm back then was led by Bruce La-Boon and Walter Zivley. They were great lawyers but they were fantastic people. The culture they fostered, one of hard

work but keeping the more

important things in life in perspective, is the reason that I accepted a job at Locke Liddell.

The mentor that I have spent by far the most time with is Craig Weinstock. Craig has an amazing ability to think through complex matters and craft win-ning strategies. We have worked closely together for years and he is a very good friend. I owe a tremendous debt to him.

tHl: How did you get interested in volun-teering with the bar?Benoit: I had been involved off and on with the Bar during my early career, but that was obviously interrupted when I went to Austin. It was not long after I re-turned that the firm asked me to become more involved in the HBA and I did. It

was a great decision and has been a tremendous enhancement to my practice. I have made more friends than I can count as a re-sult, but the best thing is being involved in the important projects of the HBA.

THL: What do you think is the role of the organized Bar in society to-day?Benoit: We are living in a time when the current group of attorneys prob-ably views the Bar through a dif-ferent lens than prior generations. There are a lot of organizations that compete for our time and money, but I firmly believe that there is no better or-ganization for an attorney to join. The other organizations are important and

we should support them, but the HBA is especially worthy of our support. As members, we benefit from network-ing, CLE programs, and a host of other member-focused projects and initia-tives. In addition, the Bar performs an incredible amount of community service that is critical to our profession. There are too many negative perceptions about the practice of law. No organization does more to combat that harmful and erroneous perception than the HBA. As members, we not only reap the benefits to our practice, but we get the opportu-nity to work shoulder to shoulder with other attorneys to serve the community and dispel the awful myths and stereo-types regarding attorneys.

THL: What do you see as the role of the president in the Houston Bar Association?Benoit: : It is a little intimidating when you think about the past presidents of the HBA. I see my role as multifaceted. I am responsible for thinking about the future issues that face our profession and our Bar, and leading the organization to confront these issues in a proactive way. I have an obligation to make sure that the HBA does everything it can, consis-tent with its mission, to serve our mem-

bers and enhance their practices. I also have an obligation to lead the Bar in its efforts to reach out and serve our community in a way that is both beneficial to those that we serve and rewarding to our members.

THL: What areas will you focus on during your administration?Benoit: In addition to enhancing service to our members, we will focus on four areas of community service. We will at-tack the problem of hunger in Houston by partnering with the Souper Bowl of Caring to organize a food and money drive leading up to the NFL’s Super Bowl. We will also encourage our mem-bers to volunteer for the Houston Food Bank or local soup kitchens.

We will build on the tremendous med-ical and legal resources we have to estab-lish a Health Access Clinic through our Houston Volunteer Lawyers Program, helping low-income families with legal issues that could prevent them from get-ting the health care they need.

We are going to do our part to re-plenish some of the millions of trees that Houston lost in last year’s drought. Through our Lawyers Against Waste Program, we will raise funds and recruit volunteers to plant at least 1,000 trees in Houston.

And we will work to educate our members and the community about a horrific problem in Houston – human trafficking. We will use our resources to raise awareness and point out the legal


and practical ramifications of forced ser-vitude. I have written more about all of these programs in my President’s Mes-sage in this issue, but that will give you an idea of the very busy year ahead.

THL: What do you think has changed most about the practice of law since you became licensed?Benoit: The role of technology in the practice of law. When I started, cell phones were not common and iPhones did not exist. If you were out of the office and someone wanted to get you, it was usually through a pager. Discovery was all paper; now it is mostly electronic. Research was usually done in a library; now it is largely performed on comput-ers. As an associate, there were several times when I drove long distances to file documents. Now it is usually the case that you can only file documents elec-tronically. The role of technology has exploded and it has profoundly changed the practice of law.

THL: What do you like to do outside of the practice of law?Benoit: I am very active at church and usually preach at least once a month. I am an avid sports fan and spend prob-ably too much time attending sporting events. The good news is that I have brainwashed my daughters to be sports fans as well. I love to travel and try to do that as much as my schedule will allow. And, of course, I spend a bunch of time with my family.

THL: Are you involved with other pro-fessional or community organizations?Benoit: I am a member of the M.D. An-derson Board of Visitors. My wife and my mother are both former patients and I have a deep affection for that institu-tion. I am also on the Board of Lone Star Legal Aid, which provides pro bono services throughout Southeast Texas. I am also on the Board of Directors of my firm.

THL: Is there anything else you would

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manage the document review,I need someone to

managing the case.so I can focus on

like to bring out in this interview that is important to you?Benoit: I want to encourage everyone to get involved with the HBA this year. We have something literally for everyone. If you cannot find something that interests you, you are probably not interested in very much. We do a lot, but we can do so much more with additional members. So, get involved, join our sections, meet your fellow attorneys, and invite all of your friends to join you.

the HBA serves you

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www.hba.org


Benoit Takes Office as HBA PresidentBrent Benoit of Locke Lord LLP took up the

gavel as the 2012-2013 president of the

Houston Bar Association at the organiza-

tion’s Annual Dinner Meeting, held May 24 at River

Oaks Country Club. Benoit succeeded Denise Sco-

field of Morgan, Lewis & Bockius LLP.

The gala evening was dedicated to the accomplish-

ments of the HBA and its members during the past

year. Scofield presented the President’s Awards to

outstanding committee and program chairs for 2011-

2012, and the HBA honored its emeritus members

who reached their 50th year of practice during the

last bar year.

Photos by Fred Provada

Brent Benoit presents Denise Scofield with recognition for an outstanding year.

Brent Benoit, christy Benoit, Denise Scofield and John Scofield.Brent Benoit, christy Benoit, ansley Buttram, president of the Houston Bar association auxiliary, and Stephen Buttram

the Benoit family -- Brooke, christy, Brent and Bryn


50-Year Lawyers50-year member larry Funderburk and his wife, linda

Funderburk.50-year member Mitchell glassman and his wife, Donna Scott.

50-year member Floyd guest and his wife, nola guest. 50-year member Stephen leSatz and his wife, laDonna leSatz.

50-year member raymond Hofker.

50-year member Joe Maida and his wife, Jewell Maida. 50-year member Jack ogg and his daughter, Kim ogg. 50-year member Ben turner and his wife, ika turner.

www.hba.org


the Hon. Michael c. Massengale was honored as chair of the county law library committee.

todd Frankfort, the Hon. Jane Bland and lionel M. Schooler were honored as co-chairs of the Historical committee.

trey Strake iii was honored for outstanding service and support of the Houston Bar association in real estate matters.

President’s Awards and Special RecognitionDenise Scofield presented the 2011-2012 President’s Awards and Special Recognition Awards to outstanding committee chairs and program leaders during the HBA’s Annual Meeting.

The HBA honored RR Donnelley Company for outstanding service and support to the Houston Bar Association for charitable events. claudine r. James and elaine S. Mcanelly were

honored as co-chairs of the aiDS outreach committee.

andrew Pearce, Sherry Bankhead and Simon Mayer were honored as co-chairs of the eikenburg law Week Fun run committee.

Daniel leightman was honored as chair of the Senior lawyers Forum.

Scott a. Durfee and Margaret Downing were honored as co-chairs of the law & the Media committee.

Bob Devlin and Mickey Baden were honored for their service to the Veterans legal initiative.

the Hon. Joseph J. (tad) Halbach was honored as chair of the Harris county Bench Bar Pro Bono awards committee.

alistair Dawson was honored for outstanding service to the Houston Bar association.


Professionalism is......marveling at our system, even when it rules against you.

...fiercely defending your integrity through your actions.

...admitting that my mother’s favorite expression always

applies: “Two wrongs don’t make a right.”

...refusing to accept the status quo if it is unjust to anyone.

...telling yourself each day: “I am only one; but still I am one.

I cannot do everything, but still I can do something. I will

not refuse to do the something I can do.” –Helen Keller

A Profilein PRoFessionAlism

ALISSA RUBIN GOMEZExecutive Director, HBA Houston Volunteer Lawyers Program


committee sPotligHt

• “How do I divorce my common- law wife?”

• “Can my landlord refuse to fix a hole in my ceiling?”

• “How do I probate my mother’s will?”

• “How can I get a criminal convic-tion removed from my record?”

• “Can you help me find a lawyer?”

These are just a sample of the questions that an HBA volun-teer might encounter on a typi-cal Wednesday evening volun-teering for LegalLine. LegalLine

is a public service program of the Houston Bar Association that has served the com-munity since 1985. On the first and third Wednesday from 5 p.m. to 9 p.m., volun-teers from the legal community staff the phone lines at the HBA office, answering questions from callers about a variety (a sometimes never-ending variety!) of legal issues.

A LegalLine volunteer’s responsibility is to answer legal questions, give brief legal advice, and provide additional resources or referrals if the phone call cannot re-solve the caller’s question. Because of li-ability issues, the volunteer attorneys are prohibited from providing their name to callers or making referrals to individual attorneys or law firms.

Often, the caller will need more legal assistance than the volunteer can provide in a brief phone call. In that situation, the volunteer attorney will make a referral to an organization that may be able to assist the caller. The most common referrals are

to the HBA’s Houston Volunteer Lawyers Program, a legal services provider for clients who meet income- and matter-eligibility requirements, and the Houston Lawyer Referral Service, a nonprofit orga-nization that makes referrals at no cost to those who use its service.

The types of legal issues most com-monly asked are in the areas of family law, consumer law, criminal law, land-lord/tenant ques-tions, wills and pro-bate matters, and business matters. Because family law questions are the most common, the HBA’s Family Law Section provides a volunteer for every LegalLine to serve as a resource for volunteer attorneys who may not be as familiar with the intri-cacies of family law.

LegalLine volunteers come from all walks of the legal profession. Each HBA Section and nearly every HBA Committee is required to recruit volunteers to staff at least one shift of LegalLine during the bar year. (The LegalLine shifts are 4:45 p.m. to 7:00 p.m. and 6:45 p.m. to 9:00 p.m. on the first and third Wednesday of every month.) In addition, law firms and in-house lawyers at businesses throughout Houston provide much-needed volun-teers. LegalLine accepts volunteers for the

shifts in groups of 4 or 8 attorneys. The LegalLine Committee is made up

of six co-chairs coming from six of the large Houston law firms. Their responsi-bilities are to recruit law firms, business-es, and the HBA Sections and Commit-

tees to fill available slots on the Legal-Line calendar and to coordinate locat-ing volunteers when there are last-minute staffing needs.

If you are interest-ed in volunteering for LegalLine and are not yet on the 2012-2013 bar year calendar, you can contact Lucy Fisher ([email protected]) or Natasha Wil-liams ([email protected]) via email or by calling the HBA office at (713) 759 1133. In addition to filling shifts of 4 or 8

volunteers, HBA maintains a list of indi-viduals who are willing to be contacted for (no obligation) last-minute shift-fill-ing needs. Lucy and Natasha await your email or phone call!

Keri D. Brown is a Senior Associate in the Private Clients Section at Baker Botts L.L.P. and the Editor in Chief of The Houston Lawyer. She also recently passed one of the six LegalLine co-chair reins to Louie Layrisson at Baker Botts, who also is happy to hear from you if you are interested in volunteering for LegalLine.

LegalLine – Providing the Public with Direct Access to Attorneys

By Keri D. BroWn

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oFF tHe RecoRd

By Julie Barry

Super Lawyer, Kent Newsome, has been an accom-plished real estate at-torney for more than 25 years—not quite as long as he has been

a song writer. Kent began writ-ing songs while he was in junior high school in his hometown of Cheraw, South Carolina. As he describes it, Kent’s initial at-tempts at writing bad poetry to attract girls evolved into song-writing for his friends. It was some time during the mid 70’s that his first song was record-ed by his high school friend, Joe Middleton. While “Princess” clearly is not in the top 100 of Kent’s favorite songs that he has written, it serves as a milestone for him today as he sets about collaborating with Joe Middleton again in writing and recording six new songs for Middleton’s band, Idlewilde South. They are currently recording a new album at a recording studio in North Carolina.

In 1977, Kent also formed Err Bear Music, Inc. (BMI), his pub-lishing company which continues to administer his catalog of songs. You can visit www.errbear.com to review the lyrics and listen to demos of hundreds of Kent’s works. Fans of Newsome can also follow him on his “Tech, Music and Life Blog” found at www.newsome.org. There, you will discover more about Kent Newsome than you could possibly imagine, including his favor-ite bands (the Wrinkle Neck Mules, for one), his thoughts about social media and the internet, and the fact that he is a “cat-lover.”

Kent’s songs are a mixture of traditional and alternative coun-try, with a little bit of rock and roll mixed in. His song, “Bound and Determined” was the title track for the 2000 Chicago-area country record album of the year. A newer work, “Ghosts” is rem-iniscent of a trip back home to South Carolina. Writing songs for Kent is “like free therapy.” It enables him to work through is-

sues that develop in his personal relationships without explosive confrontations. But he confesses that song writing has become much harder as he gets older. “When you are young, you go out

to bars, chase girls, fail to catch them and get your heart broken—all very conducive to great country songs. Now, I am happily married, with three great kids and a terrific career as a real estate lawyer, none of which makes for a good song. I have to be a lot more creative in coming up with a good song and think outside of my life.”

Kent describes the writing of one of his recent songs, “Country Mile,” as a perfect example of his new-found cre-ativity. While driving downtown to work one morning, he was passed on the highway by a cute young girl in a cowboy hat, driving a pickup truck - the perfect inspiration for a song:

There goes a girl In a cowboy hat I wish I had A girl like that

If she drives A pickup truck Wouldn’t that be A stroke of luck

As chair of Greenberg Traurig’s Houston real estate practice, Kent Newsome has no delusions of getting rich as a songwriter. “My royalty checks used to be in the three figures. Now they are in the two figure range,” chortles Kent. For now, he is per-fectly happy closing real estate deals for a living, going to swim meets, volleyball games and triathlons with his kids, writing songs on the side, and only dreaming he is a member of the Grateful Dead.

Julie Barry, attorney at law, focuses on commercial transac-tional law, representing business owners, investors, lenders and developers. She is an associate editor for The Houston Lawyer.

Kent Newsome’s

Country Road


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National Federation of Independent Business v. Sebelius and Its Effect on U.S. Health Care

By SHeryl tatar DacSo

The decision of the U.S. Supreme Court (“the Court”) in Na-tional Federation of Independent Business

v. Sebelius, announced on June 28, 2012, turned politicians and politics across the country on its head. Even those sup-porting the Affordable Care Act (“ACA”) thought that the individual mandate, the centerpiece of the contro-versy, would be ruled unconstitutional. In a surprise decision, Chief Justice Roberts sided with the four [traditionally] liberal Justices Ginsburg, Breyer, Sotomayor and Kagan to join in a judgment finding: (1) the federal Anti-Injunction Act does not bar Constitutional challenge; (2) Con-gressional authority is limited to that ex-pressly provided to Congress in the Con-stitution; and (3) the individual mandate is upheld under Congress’s authority to tax although this was characterized as a penalty by Congress. On the other hand, the requirement that states had to partici-pate in the expanded Medicaid program to continue to receive funding was clarified to preclude them from losing their exist-ing Medicaid funding if they declined to participate in the expansion.

Probing the JudgmentThe Anti-Injunction Act protects the Government’s ability to collect revenue and prevents taxes from being challenged until after they are paid. The Court rea-soned that Congress had intended for the “shared responsibility payment” imposed on those individuals that decide not to obtain health insurance to be considered a penalty and not a tax. Specifically, the Court noted that there are other provi-sions contained within the ACA where Congress explicitly labels certain extrac-tions as “taxes.” Therefore it should be presumed that Congress intended for this payment to be treated differently. Thus, the decision by Congress to label the payment as a penalty prevented the

Anti-Injunction Act from applying to the suit and allowed the Court to continue to address the merits of the case.

The next issue the Court addressed was whether Congress had the authority to

enact the individual mandate. The Gov-ernment proposed two theories to sup-port its position that Congress did in fact have the authority to do so: first, pursu-ant to the Commerce Clause, or in the al-ternative, pursuant to Congress’s power to tax. In response to the Government’s Commerce Clause argument, the Court found that Congress’s power to regulate commerce presupposes that there is al-ready something in existence to regu-late. Given the expansive nature of cases where the Court has construed the scope of the Commerce Clause, the Court rea-soned that these were all concerned with an “activity.” In regards to the individual mandate, the Court found that instead of regulating activity already in existence, it would instead compel individuals to purchase health insurance and the fail-ure to do so would then affect interstate

commerce. The Court reasoned that al-lowing Congress to regulate what indi-viduals are not already doing would ex-ceed Congress’s Constitutional authority despite the Government’s arguments that the Necessary and Proper Clause pro-vided Congress with the power to enact the individual mandate as a crucial part of an overall plan to regulate the econo-my. The Court disagreed because it does not involve an exercise of authority that stems from an enumerated power.

The Court then turned to the Govern-ment’s argument that the mandate could be upheld pursuant to Congress’s tax-ing power. The Government in propos-ing this theory asked the Court to read the mandate as imposing a penalty on those who fail to purchase health insur-ance rather than a command to purchase health insurance. The Court undertook to determine whether this was a reason-able reading of the statute and found that even though the “shared responsibility payment” is not labeled as a tax in the ACA, this is only instructive in terms of the Anti-Injunction Act and not whether it is a valid exercise of Congress’s power to tax. Therefore, the Court focused on the substance of the payment and found that because this payment will be com-pared to the actual cost of purchasing health insurance, there is no scienter re-quirement, and because it is collected by the IRS via the normal means of taxation, it is a tax, and not a penalty. Thus, the individual mandate was upheld pursuant to Congress’s taxing power.

Finally, the Court addressed the con-stitutionality the of the Medicaid expan-sion. The Court reasoned that the Spend-ing Clause permits Congress to establish joint federal-state programs, but the legitimacy of these programs for consti-tutional purposes turns on whether the State is a voluntary and knowing partici-pant to be consistent with our system of federalism. Here, the Court agreed with the States’ arguments that Congress’s

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threat to withhold existing Medicaid funds if States refused to participate in the expansion would be coercive. Further-more, the Court disagreed with the Gov-ernment’s claim that expansion should be viewed as a modification of the existing Medicaid program because, under ACA, it undergoes a transformation into a pro-gram that covers an entirely new popu-lation. The Court concluded that, pur-suant to the Spending Clause, Congress could offer these funds associated with Medicaid expansion to the States and require them to comply with the condi-tions attached to their use, provided the State elected to participate. However, the Court found as unconstitutional the pro-vision in ACA that allowed the Secretary of Health and Human Services to with-hold a State’s existing Medicaid funding if the State elected to not participate in the expansion, but the Court was able to sever the unconstitutional provision as permitted by this section, thereby pre-serving the rest of the ACA.

Effect on Health Care DeliveryDespite the decision of the Court, several important measures have been set in mo-tion. These include (1) provider consoli-dation/merger activity; (2) development and expansion of accountable care and other integrated provider organizations (“ACOs”); (3) use of ACOs as new insur-ance products by health plans; (4) per-formance and quality based reimburse-ment and incentives; and (5) health information/data sharing and manage-ment, all of which would have continued to evolve.

Sheryl Tatar Dacso, J.D., Dr. P.H., a partner in the Houston office of Seyfarth Shaw, LLP, has represented health care organizations, hospitals and physicians for over 30 years. She is Board Certified in Health Care Law by the Texas Board of Legal Specialization and certified in health care compliance by the Health Care Compliance Association. The

author wishes to thank Courtney Duffy, 3L at Loyola University Law School in Chicago, Illinois for her work on this article.

Arizona v. United States A State’s Role in Immigration Enforcement

By MarcoS geMoetS

Texans understand the impor-tance of sovereignty, particu-larly when it comes to protect-ing Texans and their land. The State holds little reservation

in challenging efforts by the federal government to expand its role in what Texans believe to be state issues. How-ever, when it comes to immigration, the federal government reigns supreme, as affirmed by the U.S. Supreme Court on June 25, 2012, in its landmark decision, Arizona v. United States.

Immigration, in particular undocu-mented migration, remains a polariz-ing political, economic and social issue. States like Texas, New Mexico, Arizona and California, which share a southern border with Mexico, also share unique problems caused by the flood of undocu-mented migration passing through into the United States. In response to what is perceived to be an adverse impact on the economies, security and welfare of these states caused by this migration, several states have enacted laws and regulations intended to deter immigra-tion and enforce federal immigration laws at a state level. In 2010, Arizona en-acted The Support Our Law Enforcement and Safe Neighborhoods Act, commonly referred to as S.B. 1070, citing a need

to address an increased population of undocumented foreign nationals in the state and the economic and social impact caused by their presence. The Arizona statute established criminal penalties for immigration violations and authorized state law enforcement to detain foreign nationals for immigration violations. Arizona sought to stand in the place of federal immigration officers it consid-ered unable or unwilling to detain unau-thorized migrants in the state.

The Constitution authorizes the fed-eral government to establish a uniform naturalization process and create im-migration laws that are consistent with the country’s domestic and foreign policies. The Immigration & National-ity Act (“INA”), providing the general framework for the implementation and enforcement of immigration laws in the United States, was enacted in 1952. Congress has amended the INA to in-clude additional benefit and enforce-ment provisions, including a major over-haul of removal grounds in 1986 and 1996. These amendments introduced employer sanctions for willful employ-ment of unauthorized foreign workers and enhanced grounds for the removal of foreign nationals. In Arizona v. United States, the U.S. Supreme Court affirmed the federal government’s role in im-migration law, stating that “[i]mmigra-tion policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the percep-tions and expectations of aliens in this country who seek the full protection of its laws... It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national government, not the 50 separate States.”

The key issue in Arizona v. United States was whether states may regulate immi-gration within their respective borders,


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or whether the federal government’s pri-mary authority preempts state action. The Supreme Court reviewed four pro-visions of S.B. 1070, striking down three provisions as exclusively within the federal government’s purview; however, leaving the fourth provision subject to further judicial action if its application were to conflict with federal law. In two of the provisions, Arizona’s S.B. 1070 enacted criminal penalties specifically directed against foreign nationals. Ari-zona sought to make misdemeanor of-fenses for foreign nationals who fail to register their immigration status with the federal government or carry proof of their registration. Furthermore, S.B. 1070 created misdemeanor offenses for foreign nationals seeking or engaging in employment without authorization. The Supreme Court affirmed that the fed-eral government’s interest in a uniform immigration program precluded state criminal penalties that conflict with fed-eral enforcement strategies. According-ly, the Supreme Court found S.B. 1070’s criminal provisions were preempted by federal law.

In addition to the criminal provisions, S.B. 1070 sought to expand the author-ity of Arizona law enforcement officers to detain foreign nationals. State law

enforcement was already authorized to communicate with federal immigration officers following an arrest, if deter-mined that the detained individual is a foreign national without authorization to be in the United States. However, S.B. 1070 expanded Arizona law enforce-ment’s authority, providing that an offi-cer could simply arrest foreign nationals believed to be removable from the Unit-ed States. The Supreme Court struck down this provision as an intrusion on the federal government’s authority to re-move foreign nationals from the United States.

The fourth provision of S.B. 1070 ad-dressed by the Supreme Court required law enforcement officers to communi-cate with federal immigration officials to determine the immigration status of any person detained. The Supreme Court determined that it does not consider it inappropriate for state law enforce-ment to communicate with the federal government; however, if unreasonably prolonged detention arises from this communication, then a constitutional violation may exist. Accordingly, the Court concluded that it was premature to evaluate whether the application of the fourth provision would conflict with federal law and left open the matter for

further judicial review.Texas, unlike Arizona, has not en-

acted enforcement laws targeting for-eign nationals. It has, however, raised these issues in prior legislative sessions. In 2011, Texans considered whether to criminalize the unauthorized employ-ment of foreign nationals or whether to require law enforcement to inquire as to the immigration status, similar to some of the elements of Arizona S.B. 1070. Arizona v. United States may persuade legislators in the upcoming legislative session to reconsider state efforts to im-plement immigration enforcement laws that conflict with federal immigration policies.

Arizona v. United States affirms the federal government’s right to establish a uniform national program to determine the entry requirements for foreign na-tionals.

Marcos Gemoets, owner of The Law Office of Marcos Gemoets, P.C., has more than ten years of experience representing immigration clients, including immigrant families, U.S.- and foreign-based corporate clients, and individuals facing removal from the United States. He is board certified in Immigration & Nationality Law by the Texas Board of Legal Specialization.

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A Marked Heart By David george Ball Jones Mcclure Publishing, 2010Published by: iuniverse, inc., Bloomington

reviewed by angela l. Dixon

A Marked Heart is a wonder-ful autobiography by David George Ball, written about the author’s life and the trials and triumphs he has faced. Ball,

who went on to serve as Assistant Secre-tary of Labor during George H. W. Bush’s administration was the son of a Baptist minister and mission-ary who was born in Gloucester, England. A Marked Heart be-gins with Ball dis-cussing his parents and how they met, and then goes on to detail his childhood memories growing up in Gloucester. He recalls memories of American soldiers staying in his home during WWII after the attack on Pearl Harbor. Ball was par-ticularly fond of one Corporal who spent time talking to him about America. He was proud his family took an active role in helping the soldiers.

Ball writes this book very candidly, shar-ing many details about his feelings and beliefs. It is easy to become engrossed in it. Ball often discussed how his “mum,” as he called her, had a plan for his life early on. She decided he was destined to be a minister like his father, and indeed Ball did travel down this path faithfully until

an encounter with Dr. Martin Luther King Jr. changed his life forever.

Ball, who immigrated to the United States with his family at the age of 17, at-tended the Chicago Moody Bible Institute, where his father also studied years earlier. Ball sometimes struggled to fit in but even-tually found his place. While his “mum” had his future planned out, he himself of-ten wondered if he was meant to do some-thing more than the ministry. Ball ultimate-ly decided to apply to Yale to continue his ministry studies and was accepted, much to his mum’s resistance. Ball excelled in his studies and found his place among student groups. One such group he orga-nized, the Undergraduate Lecture Com-

mittee, brought in speakers to ad-dress the student body at Yale about the relevant social issues of the time. Ball learned of Dr. King from Yale’s associate chaplain and, intrigued by his efforts for civil rights in the South, decided to invite the then-relatively unknown Dr. King to speak.

Accepting the in-vitation, Dr. King spoke to a crowd

of 2,000 students on January 14, 1959. Af-ter the lecture, Dr. King met with students including Ball and answered questions about his civil rights work. Ball learned that January 15 was Dr. King’s birthday and had a small celebration in his honor. This encounter with Dr. King set the stage for the rest of Ball’s life. Ball said that Dr. King seemed to combine political activity with a life of integrity, peace and deter-mination. He decided after that visit that he wanted to be like Dr. King. Instead of following his mother’s plan to become a

minister, Ball switched his major to politi-cal science and decided to go to Columbia Law School. Throughout his life, Ball re-visited his time with Dr. King and reflected on how he would make a difference with his life and live the way Dr. King did. Ball later graduated from Columbia and landed a pristine job at a Wall Street law firm.

While his professional life prospered, Ball experienced some tragic losses in his personal life. While I am tempted to share some of those losses, I will refrain and allow readers to discover them for them-selves. He often discussed how the support of his family, especially his mother, father and wife, sustained him during those dif-ficult times. But despite the adversity, Ball never relinquished his desire to help oth-ers. This desire and determination ulti-mately led him to his work with the first 401(k) plan. Before Ball’s work, pension plans were non-transferable. When an employee left his employer, he also left be-hind all the money earned in his pension plan. Ball felt there was a better way to as-sist employees by utilizing 401(k) plans that allowed employees to have more flex-ibility. Today, more than 70 million Ameri-cans have 401(k) plans. Ball’s dedication to this work ultimately led to him being appointed by President George H. W. Bush as the Assistant Secretary of Labor for Pen-sions and Welfare benefits.

Ball’s memoir is an account of one man’s desire to make a difference with his life and to serve others. The book is humorous at times and heart wrenching at others be-cause it shows one man’s struggle to main-tain his livelihood as well as keep his fam-ily intact. A Marked Heart is a great story of accomplishment, and Ball’s experience proves that one person can make a differ-ence and impact the lives of many.

Angela L. Dixon is an attorney with a civil practice, focusing on wills and probate, land-lord/tenant disputes, and personal injury law. She is an associate editor for The Hous-ton Lawyer.

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5080 SEEKIng ASSOCIATE lEgAl COunSEl for Hous-ton public pension fund. Ap-prox. 4 years’ experience with retirement plans, employee benefits, administrative law, institutional investing or Texas local government law required. Background checks and drug testing. EOE.

5094 ESTATE plAnnIng – pROBATE ATTORnEY. SugAR lAnD. Board certi-fied attorney, 33 year Houston area practice serving Harris/Fort Bend counties, seeking associate attorney with ad-vanced estate planning and probate experience.

PlaceMent PolicyThe Placement Service will assist HBA members by co-ordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions.

1. To place an ad, attorneys and law firms must com-plete a registration record. Once registration is com-plete, your position wanted or available will be regis-tered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.2. If you are registered, resumes will be sent out un-der their assigned code numbers. Once a firm has re-viewed the resumes, they are to contact the placement office with the numbers they are interested in pursu-ing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal informa-tion to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner.3. In order to promote the efficiency. PleaSe notiFy tHe PlaceMent coorDinator oF any PoSition FounD or FilleD.4. To reply for a position available, send a letter to Pplace-ment Coordinator at the Houston Bar Association, 1300 First city tower, 1001 Fannin St., Houston, tx 77002 or e-mail Brooke Benefield at [email protected]. Include the code number and a resume for each posi-tion. The resume will be forwarded to the firm or com-pany. Your resume will not be sent to your previous or current employers.

PlaceMent DeaDlineS Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. IssueIf you need information about the Lawyer Placement Service, please contact HBa, placement coordinator, at the HBA office, 713-759-1133.

2062 very Experienced Trial Attorney intimately familiar with the mechanics and opera-tion of the Commercial Mort-gage Backed Securities (CMBS) industry, including the secu-ritization process of commer-cial loans and the duties and responsibilities of Mortgage loan Originators/Depositors, underwriters of REMIC Trusts, Rating Agencies, Trustees, Ser-vicers and Special Servicers. looking for in-house position.

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DeWild, 713-209-2934

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ExECuTIvE OFFICE SpACE AvAIlABlE:

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GREENWAY PLAZALooking for a room with a view? Our partner/window office is the answer. Add to that a spa-cious, furnished secretarial sta-tion. Lovely, first class, profes-sional environment with access to amenities that include Inter-net, long distance phone service, shredder, copier, file storage, fax, postage, reception, kitchen and beautiful conference rooms.

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3 offices available in Frost Bank Building, Bellaire and West Loop. 15X16, 15X12, and 10X12. Conference room, secretarial space, kitchen, copier/scanner/fax. No cover. No minimum.

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Office Space GalleriaOne office for sublease in suite with Board Certified attorneys (EP, RE & Tax). Great poten-tial for shared referrals. Ameni-ties include shared receptionist, phones, voice mail, two confer-ence rooms with great views, kitchen, fax, copier, high speed internet, and free parking ga-rage. Wonderful location in the

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GALLERIA AREA SUITE with great view - offices avail-able for lease. Top floor of Chase Bank building at Richmond and Sage. Approximately 200-225 square feet per office. Well ap-pointed suite includes con-ference room, limited library, wet bar, and free parking. Fax, copier, reception/secretary ser-vice available at additional cost. $875.00-$925.00 per month.

Dorena 713-961-5555.

HOUSTON – Beautifully re-modeled 2-story building in ideal location on I-10 & Heights Boulevard just minutes from Downtown. Offering ex-ecutive suites and virtual offices with conference rooms, copy/fax center, kitchen, parking in-cluded and much more. MUST

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GALLERIA area office space for sharing arrangement. Available September 1. Up to two attor-neys’ spaces are available with space for support staff and files. Attorney offices are about 14’ X 15’ with large windows. We have conference rooms, kitch-en and other common areas. This is not an executive suite. Email Kurt Arbuckle, kurt@

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Law firm seeking civil trial attorney with 4-5 years ex-perience. Submit resume to Holm | Bambace, 1010 La-mar, Suite 1100, Houston,

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Civil trial law firm seeking nurse paralegal with 3-4 years experience. Submit resume to Holm | Bambace, 1010 Lamar, Suite 1100, Houston,

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Boutique Corporate and Se-curities law firm in Bellaire is seeking litigation attorney/partner with portables to ex-pand litigation practice. Send resume, salary requirements and information regarding por-tables to [email protected].

Ticket and DWI defense, traffic warrant removal, DPS license hearings, occupational driver’s licenses, and driver’s license issues. Robert W. Eutsler.

www.TheTicketAttorney.comTel. 713-464-6461.

ATTORNEY DISCIPLINE On June 20, 2012, VIINH CHI TRIEU, Attorney Registration No. 0076557, last known busi-ness address in Houston, Texas was indefinitely suspended from the practice of law in Ohio. See the Supreme Court’s entry in Disciplinary Counsel v. Vinh Chi Trieu, 2012-Ohio-2714

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Documents

THL_July/August_2012