THL_SeptOct_2011

lawyerVolume 49 – Number 2 September/October 2011

inside...

Lingering Traces of Hispanic Law in Texas

Preserving Harris County’s Legal History: Can We Do Better Than The Past?

West U and Bellaire Go to War

Anthony D. Cox v. Yoko Ono Lennon

100 Things You Might Not Know About the HBA

Preserving Harris County’s History

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‘Preserved From The Wreck’: Lingering Traces of Hispanic Law in Texas By James W. Paulsen

Preserving Harris County’s Legal History: Can We Do Better Than The Past? By Bill Kroger

‘That Must Have Been Some New Year’s Eve Party’: West U and Bellaire Go to WarBy Judge marK davidson

‘I Really Want to See You’: Cause No. 893,663; Anthony D. Cox v. Yoko Ono Lennon By Judge marK davidson

100 Things You Might Not Know About the HBA

Justice Restored: Harris County’s 1910 CourthousePhotos by nash BaKer PhotograPhy

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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, 2011. All rights reserved.

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39President’s messageMilestones By denise scofield

from the editorHistory-PaloozaBy tamara stiner toomer

a Profile in Professionalism:The Honorable JENNIFER L. WALKER ELROD Judge, United States Court of Appeals for the Fifth Circuit

committee spotlightThe HBA Historical Committee By lionel m. schooler

media reviewsLone Star Law: A Legal History of Texas reviewed by James W. Paulsen

Daughters of the River Huong reviewed by Joy e. sanders

off the recordPlanes, Boats and Automobiles: Land, Sea and Air Claim Eric Lipper’s Free Time By farrah martinez legal trendsThe U.S. Supreme Court Holds That Employment Discrimination Claims By 1.5 Million Women Cannot Proceed As One Class By Jill yaziJi

Paid or Incurred, Post- Haygood v. Escabedo By roBert W. Painter

Texas Passes Law Requiring Disclosure of Chemicals Used in Hydraulic Fracturing Fluid By Barclay nicholson Placement service

litigation marketPlace

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Cover Photo: Harris County’s restored 1910 Courthouse is a centerpiece of the downtown courts complex. Photo by Jim Olive.


Houston and Texas share a common birth year and are celebrating 175 years of rich history. The legal profession is marking both milestones. Here in Hous-

ton, we re-dedicated the 1910 Courthouse, are examining the breadth of the document preservation efforts left to be accomplished in Harris County, and are educating the profession and the public about the con-tributions Houston lawyers have made to Texas history.

The 1910 CourthouseWhen I began practicing in 1992, the Harris County District Courthouse at 301 Fannin already had fallen into disrepair and faced an uncertain future. By then, it had been clear for several years that the civil district courts had outgrown the square footage and outpaced the technological capabilities of 301 Fannin. Over the following years, many suggestions regarding its renovation and re-use were made with little consensus among members within the legal commu-nity and Harris County. Fortunately, the in-terested parties came together in 2005.

Some six years later, the newly-named 1910 Courthouse was re-dedicated in Au-gust 2011 in a ceremony befitting the gran-deur of the restored building. As the new home to the First and Fourteenth Courts of Appeals, the building remains true to its original purpose of providing citizens of Harris and other counties with a place to pursue justice. Regardless of your area of practice, it is worth your time to walk through our 1910 Courthouse and admire the careful balance of historical accuracy

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By Denise scofielDMorgan, lewis & Bockius llP

and contemporary technology and conve-niences.

Document PreservationWe owe a debt of gratitude to several vi-sionaries in Houston who saw the signifi-cance of the preservation of the past in a manner no less grand than the restoration of our courthouse – they recognized the importance of saving the records that at one time were housed within the walls of the five courthouses that have stood at 301 Fannin dating back to the 1800s. Thanks to their vision, our Historical Document Room in the Harris County Civil District Courthouse opened to the public in 2006.

Court records from 1837 to 1925 have been painstakingly restored and are avail-able for viewing. Over the years, files marking the careers of esteemed Houston lawyers and files involving people or is-sues of significance have been preserved. Judge Mark Davidson recently noted that the real historical significance of many of these records may not always be the law-yers involved in the case, the people named therein, or even the issue at hand. Rather, the historical value may be more subtle – for instance, an inventory of the contents of a grocery store tells us what the people of Harris County were using or consuming in the early 1900s.

The Houston Bar Foundation continues to work with Harris County to determine the scope of the work remaining as to the documents dating to 1925 and to raise the funds needed to complete the restoration and preservation of Harris County’s past. Thanks to recent state legislation, docu-ments dating to 1950 will receive some

protection from destruction, and the HBA is assessing how best to proceed as to those records. The HBF is accepting tax-deductible donations to see this project to completion. In addition to preserving case files, bound volumes such as criminal case indices, minute books, fee docket books and accounting books from as early as the Republic of Texas days are being saved. Costs for preserving these invaluable his-torical records range from a little as $10 for a file to as much as $2,500 for a civil index book. Donors who contribute an amount sufficient to preserve an entire book may be recognized on the spine or outside cover of the book. Just as it is worth your time to visit the 1910 Courthouse, it is worth your time to spend an hour in the Historical Document Room.

Six Houston Lawyers Who Contributed to Texas HistoryFinally, as part of the HBA’s year-long cel-ebration of our past, the Houston Bar Bul-letin is featuring an article about a Houston lawyer who contributed to Texas history in each issue. These short pieces provide a quick glimpse of the impact of the legal profession on the birth and development of our city and state. Some of the names will be known to you, others will not. Certainly it would benefit the legal community to more widely disseminate and educate the public about the historical significance of lawyers in the cultural, civic, and educa-tional achievements of our city and state.

Special thanks to Justice Jane Bland, Lon-nie Schooler and Todd Frankfort for chair-ing the HBA’s Historical Committee during a very big year for the bar!

Milestones


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thehoustonlawyer.com september/october 2011 7

If the magazine cover has not already given away the theme to this issue of THL (possibly because you are so excited to read my column and skipped right to it – page 8 for future reference), let me be the first to welcome you to an extraordinary issue covering a range of historical topics. Not only will

readers come away with some fun history facts, but you can also test your knowledge of Bea-tles’ song lyrics by reading Judge Davidson’s article on Yoko Ono’s custody battle for her daughter with Anthony Cox. Huh? Am I the only one who did not know that Yoko Ono had a child be-fore she married John Lennon? While on the subject, am I the only one who had no clue that Yoko Ono was married to some-one besides John Lennon? It’s amazing what you can dig up in the Harris County archives, and Judge Davidson did just that by gracing us with an-other article about a battle in the ‘burbs. Take-away: don’t let the pearls and updo fool you when it comes to turf wars.

Also adding to the fun history facts is a list com-piled by Tara Shockley and Keri Brown of 100 things you may not have known about the Houston Bar Association. Originally, it was supposed to be 175 things, but who’s counting. Tara and Keri ran out of steam around 10 and just made up the other 90. The first to identify the correct 10 gets a free set of steak knives. (Editor’s note: I’m only joking folks—there are no steak knives). Not to be outdone, South Texas College of Law Professor Jim Paulsen chips in with a great article on some of the laws and procedures that Texas’ legal system adopted from Mexico. Of course,

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By TaMara sTiner TooMerattorney at law

associateeditors

Julie BarryAttorney at Law

Keri BrownBaker Botts L.L.P.

Angela L. DixonAttorney at Law

none of the aforementioned articles would be pos-sible without document preservation, a very impor-tant topic that Bill Kroger and Lonnie Schooler teach us about in their written contributions to the issue. Last, but not least, is the awesome photo essay of be-fore and after pictures of the 1910 courthouse reno-

vation. Huge thanks to Jim Olive and Nash Baker who donated their photographs to make this possible. Jim and Nash are professional pho-tographers and give great accounts of how they captured the historic court renovation through pictures, which you can read about in the sidebars included in this issue.

Before I sign off, I must give credit where credit is due. Keri Brown and Nick Nicholas served as guest editors and worked tire-lessly to put together this issue of THL, which is an entertaining, yet informative account of Houston’s

rich history and the efforts of those who seek to pre-serve it. Thanks also to the other members of THL’s editorial staff, who are instrumental in maintaining the high quality and standards that have continued to make THL one of the nation’s leading bar journals. It is only fitting that we bring our readers such an is-sue to commemorate the 175th anniversary of Texas Independence and the 175th birthday of Houston.

Peeking ahead, the next issue will serve as a year-in-review on some interesting legal topics and in-clude articles on professionalism. Thus, I will share a few of my best “professionalism” practices in my next column, as I did with my fantasy football tips in the previous issue. You can thank me later. As al-ways, I hope you enjoy reading this issue. Until next time...

History-Palooza

Don Rogers Harris County District Attorney’s Office

Robert W. Painter Painter Law Firm PLLC

“It is only fitting

that we bring

our readers such

an issue to

commemorate the

175th anniversary

of Texas Independence

and the

175th birthday

of Houston.”


BOARD OF DIRECTORS

DIRECTORS (2010-2012) Benny Agosto, Jr. Todd M. Frankfort Warren W. Harris John Spiller

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

EDITORIAl STAFFeditor in chief

Tamara Stiner Toomer

associate editors

Julie Barry Keri D. Brown Angela L. Dixon Robert W. Painter Don Rogers

editorial Board

Sharon D. Cammack Don D. Ford III Sammy Ford IV Polly Graham John S. Gray Al Harrison Farrah Martinez Judy L. Ney Edward J. (Nick) Nicholas Caroline C. Pace Benjamin K. Sanchez Joy E. Sanders Hannah Sibiski Gary A. Wiener N. Jill Yaziji

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 Ronald Riojas

committees & events director Claire Nelson

committees & events assistant Brian Edwards

communications directorTara Shockley

communications/ Web designerBrooke Eshleman

PresidentDenise Scofield

President-electBrent Benoit

first vice PresidentLaura Gibson

second vice PresidentM. Carter Crow

secretary Alistair B. Dawson

treasurer David A. Chaumette Past PresidentT. Mark Kelly


‘Preserved from the WrecK’:

lingering traces of hispanic

law in texas

thehoustonlawyer.com march/april 2011 11

changes in 1866, 1883 and 1895 have mixed things up even further.18

Hispanic principles also have affected Texas water law, but not as a direct sur-vival of early law. The 1840 act adopting the common law did not specifically ad-dress water rights19 and an 1856 court rul-ing made clear that Texas had judicially adopted a common law riparian rights system.20 Beginning in 1895,21 a succes-sion of further legislative enactments, cul-minating in the Water Rights Adjudica-tion Act of 1967, established a permitting process subject to judicial review. That re-view process sometimes required detailed examination of Spanish law.

Professor Hans Baade of The University of Texas sums things up as well as any-one: Though “the present system of Texas water law is twice or perhaps even three times removed from the Spanish and Mexican law of water rights that had pre-vailed” before 1840, “paradoxically, the ultimate stages of the historical process... have served to enhance rather than to di-minish the practical significance of water right claims based on Spanish and Mexi-can law.” 22

Spanish law had a more dramatic in-fluence on Texas civil procedure. In the 1830s, Anglo law observed a strict divi-sion between common law and equity. For example, before emigrating to Texas, John Hemphill had to obtain two South Carolina law licenses—one for the law courts, and the other for chancery.23 Oversimplifying greatly, the nature of the lawsuit and the relief sought would deter-mine what sort of pleading one would file, which court (or courts) would determine the controversy, and whether litigants had a right to trial by jury. The English system also gave birth to complex and formulaic pleading.

Spain and Mexico were civil law ju-risdictions, so the English distinction between law and equity was unknown. Pleadings also were simple—petitions and answers. A fair number of Anglo set-tlers had acquired some experience with, and appreciation for, Mexican courtroom procedures before the Revolution.24 So,

not put in effect until January 1840.6 Once the smoke of San Jacinto cleared, there ac-tually was some wrangling in Congress as to whether the common law really was the superior system.7 One writer credits Pres-ident (and non-lawyer) Mirabeau Lamar with pushing through a measure in which President (and lawyer) Sam Houston had little apparent interest.8 However, it took just as long to get the Supreme Court of the Republic of Texas up and running.9 So the delay in adopting the common law may not mean all that much.

In January 1840, Congress finally re-pealed Mexican law and adopted the common law,10 giving the Republic—in the words of one judge—“a jurispru-dence better understood by the courts, the bar and the people than that in use.”11 A Houston newspaper was more blunt, lauding adoption of “the noble structure of English law” in place of “[t]hat miser-able system of quasi Spanish, Mexican, departmental and civil laws which has had a sort of vogue here.”12

As permitted by the Constitution, how-ever, the Republic’s Congress did save some elements of Spanish law from the purge, principally in the areas of land rights, trial procedure, and family rela-tionships13 —the latter categories includ-ing such things as simplified and unified pleadings, venue rules, the independent executor, adoption, community property law, and (some say) the homestead.14

The decision to retain Spanish and Mexican land law is unremarkable. In international law, a change in govern-ment ordinarily does not affect land title15 (though the Republic Constitution did provide that anyone who aided the Mexi-can army would forfeit their lands16). Republic lawmakers specifically retained prior law relating to “salt lakes, licks and salt springs, and mines and minerals of every description.”17 One result is that determination of Texas mineral rights can be a little challenging. Unlike the Eng-lish system, pre-Revolution land grants from the sovereign conveyed only surface rights unless specified otherwise. Back-and forth constitutional and statutory

In the diverse mix of cultures that makes Texas unique, the state’s Span-ish and Mexican heritage features prominently, from Tex-Mex cuisine and barbeque to Cinco de Mayo, fiesta,

and rodeo. Cultural influences on Texas law are more difficult to pin down. Books could be written (and one short book ac-tually has been written1) on the subject. This article’s more modest goal is to pres-ent a summary of key features of Hispanic law that survived the legal and political upheaval of the Texas Revolution.

One sometimes hears that Texas law retains some Spanish flavoring because some concepts were so firmly rooted in Texas culture that later Anglo settlers could not dislodge them.2 That is wrong. The retention of some civil law concepts was not due to force of habit or a new sov-ereign’s practical accommodation to the local population. The 1836 Texas Con-stitution was adopted scant days after the Alamo and the Goliad massacres, and al-most all delegates were Anglos with little reason to wax nostalgic over the trappings of Mexican rule.3

On its face, the Constitution of the Republic of Texas pretty much repudi-ated Hispanic law. Congress was directed, “as early as practicable,” to “introduce, by statute, the common law of England, with such modifications as our circum-stances, in their judgment, may require; and in all criminal cases, the common law shall be the rule of decision.”4 Legislation implementing the Constitution’s mandate simply shows the intent—in the words of early Texas Chief Justice and civil law enthusiast John Hemphill—“to preserve from the wreck of the Spanish system of jurisprudence” selected bits and pieces of prior law.5 What makes the Texas story so interesting is that these fragments of Spanish law have survived the test of time very well, and some have spread far be-yond the Red River.

Despite the “[a]s early as practicable” language, the constitution’s mandate was

By James W. Paulsen


of community ownership.46

A final point worth making is that, while Spanish-influenced doctrine is not a large component of Texas jurisprudence, quantitatively speaking, that law has had an outsized effect. New York has been credited as the jurisdiction that first suc-cessfully merged law and equity (in the 1848 Field code), and as being the cradle of the American women’s rights move-ment (the Seneca Falls convention, also in 1848). But Texas merged law and eq-uity before New York,47 Texas community property principles helped bring about Seneca Falls (probably without the con-scious knowledge of Susan B. Anthony and her friends),48 and the homestead has spread worldwide.49 In sum, if only a few items could be salvaged from the “wreck of the Spanish system of jurisprudence,” the lawmakers of the Republic of Texas chose well.

Professor James W. Paulsen teaches civil procedure, family law, and mari-tal property law at South Texas College of Law. He earned his law degree from Baylor Law School and an LL.M. from Harvard Law School.

endnotes1. See STATE BAR OF TEXAS, THE INFLUENCE

OF SPAIN ON THE TEXAS LEGAL SYSTEM (1992).

2. Accord Joseph W. McKnight, Spanish Concepts in Texas Law of the Family, Succession, and Civil Procedure, in id. at E-1 (to the same effect, adding: “The true picture is fundamentally different”).

3. Ralph W. Steen, Convention of 1836, in 2 NEW HANDBOOK OF TEXAS 297 (1996) (stating that of 59 delegates, only three were natives of Mexico).

4. TEX. CONST. art. IV, § 13 (1836).5. Cartwright v. Hollis, 5 Tex. 152, 153 (Tex. 1849)

(referring specifically to community property law).

6. Act approved Jan. 20, 1840, 4th Cong. R.S., § 1, 1840 Republic of Texas Laws 156, reprinted in 1 H.P.N. GAMMEL, LAWS OF TEXAS 177, 177-78 (1898)

7. Robert N. Jones, The Adoption of the Common Law in Texas, 53 TEX. B.J. 452, 454-55 (1990).

8. Id.9. See, e.g., James W. Paulsen, A Short History of

the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237, 253 (1986).

10. Act approved Jan. 20, 1840, 4th Cong. R.S., § 1, 1840 Republic of Texas Laws 156, reprinted

just two weeks after the Republic adopted the common law, lawmakers provided that “the proceedings in all civil suits shall, as heretofore, be conducted by peti-tion and answer,” and that legal and equi-table claims could be raised and decided in a single lawsuit.25

The decision was not universally popu-lar. Prominent members of the Houston bar petitioned Congress to institute com-mon law pleading. In their view, simple Spanish pleadings were “eminently well calculated to afford protection to the ig-norant and indolent.”26 Because many law-yers did not understand Spanish pleading (or even speak the language), the result was seen as “a mongrel system” in which chaos reigned, “many Lawyers pursuing the Civil Law, whilst a greater number adopt and pursue in parts of pleadings be-yond the petition, the forms of the com-mon Law.”27

Preservation of the community prop-erty system was perhaps the most radical innovation of all, at least from the per-spective of common law proponents. To paraphrase Blackstone, at marriage the two became one, and that one was the husband.28 In civil law, though, husband and wife were true partners.29 The wife kept her separate property, and she shared equally in property acquired during mar-riage.30

The popularity of the Spanish approach probably stemmed from at least two sources. First, in a frontier society, wom-en shared equally in both hard work and danger. A partnership seemed only fair.31 Second, Texas debtors could use the com-munity property system, combined with restrictions on a married woman’s con-tractual powers, to play nasty tricks on creditors who thought only in common law terms.32

The pedigree of the homestead, an es-tate in land exempt from the claims of general creditors, is more difficult to pin down. In its full-fledged form, the home-stead surely is an invention of the Texas Republic.33 Yet it may reflect some aspects of prior Spanish law,34 and bears an even stronger resemblance to a short-lived

Mexican enactment.35 This genealogical problem is made worse by the fact that the author of the first homestead law never has been identified conclusively.36 More-over, the Mexican law just mentioned was apparently the brainchild of Stephen F. Austin, technically a Mexican citizen at the time, but also an Anglo non-lawyer outside the mainstream of civil law.37

Before winding up this flying overview, a couple of points bear mention. First, it is very difficult to pin down “true” Spanish law survivals with any degree of certainty. For one thing, it is difficult even today—and surely was more difficult back then—to figure out just what comprised Spanish or Mexican law. Law books were scarce38 and the text of some laws or interpretive decisions were not available.39 One re-markable early court opinion referred to (and disapproved) a longstanding prac-tice whereby judges would “receive the evidence of intelligent Mexicans, who were not lawyers, in reference to the laws of Spain and Mexico, in litigation pertain-ing to lands.”40

To these problems, add that there were no properly qualified Mexican or Spanish lawyers in pre-Revolution Texas,41 most immigrant lawyers could not read the language,42 translations sometimes con-tained errors,43 and none of the first nine judges of the Republic had practiced in a civil law jurisdiction.44 All in all, it seems likely some pre-Revolution law in the province of Coahuila y Tejas did not bear a very strong resemblance to “pure” Span-ish law, and that some good faith efforts to follow Spanish law did not succeed.

Take, for example, Chief Justice Hemp-hill’s interpretation of Spanish commu-nity property law regarding the important question of the ownership of crops pro-duced on separately owned land. Hemp-hill strongly favored Spanish law. Yet his opinions tended toward the so-called “American rule” of separate ownership.45 It fell to a later common law-inclined judge (one with a law degree from Har-vard, back when it was a two-year under-graduate course) to decree—apparently without knowing it—the “Spanish rule”


in 1 H.P.N. GAMMEL, LAWS OF TEXAS 177, 177-78 (1898).

11. Jones v. Nowland, Dallam 451, 452 (1842) (opinion of Associate Justice Anderson Hutchinson).

12. Morning Star (Houston), Feb. 12, 1840, at 2 (col. 1).

13. Joseph W. McKnight, Spanish Law, in 6 NEW HANDBOOK OF TEXAS 6-7 (1996).

14. Id. at 7.15. See, e.g., id.16. TEX. CONST., General Provisions, § 8 (1836). 17. See supra note 10, § 2.18. See, e.g., Schwartz v. State, 703 S.W.2d 187,

189-90 (Tex. 1986); Hans W. Baade, Traces of Spanish and Roman Law in the Texas Land, Water & Mineral Law, in State Bar of Texas, at D 3, in State Bar of Texas, The Influence of Spain on the Texas Legal System (1992).

19. See generally Hans W. Baade, The Historical Background of Texas Water Law–A Tribute to Jack Pope, 18 ST. MARY’S L.J. 1, 3 (1986). Professor Baade’s work is an indispensable source for any thorough understanding of the history of Texas water law.

20. See Haas v. Choussard, 17 Tex. 588 (1856); see also In re Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River Basin, 642 S.W.2d 439, 439 (Tex. 1982) (stating that “Texas judicially adopted the riparian rights system, at least by 1856”); see also generally Ira P. Hildebrand, The Rights of Riparian Owners at Common Law in Texas, 6 TEX. L. REV. 19 (1927).

21. See supra Baade, Historical Background, note 19, at 6 (discussing the Irrigation Act of 1895, which reserved to the state all unappropriated running waters as of its effective date).

22. Id. at 11.23. See generally James W. Paulsen, The Judges of

the Republic of Texas, 65 TEX. L. REV. 305, 318-22 (1986).

24. Joe McKnight attributes the survival of some law to the fact that some Anglo lawyers practiced with Mexican rules long enough to develop some genuine appreciation for those rules. Bar book at E-2.

25. Act approved Feb. 5, 1840, 4th Cong. R.S., §§ 1, 12, 1840 Republic of Texas Laws 88, 2 H.P.N. GAMMEL, LAWS OF TEXAS 262 (1898).

26. Memorial of Law Practitioners at 4, November 1841 (No. 22, Box 54) (Lorenzo de Zavala State Archives, Austin).

27. Id. at 1.28. 1 WILLIAM BLACKSTONE, COMMENTARIES

ON THE LAW OF ENGLAND 442 (5th ed. 1773) (stating that “By marriage the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband...”).

29. See, e.g., Wright v. Wright, 3 Tex. 168, 172 (1848) (per C.J. Hemphill, stating that at divorce the wife could seek “the delivery to her of her separate property and the one-half of the common property of the conjugal partnership”).

30. See, e.g., id.

31. Cf. Edwards v. James, 7 Tex. 372 (Tex. 1851) (per C.J. Hemphill, asking rhetorically: “Do not the women sustain the frontier with their toils, if not with their arms? Are they not subjected to the same, and to infinitely worse horrors from the hostilities of the savage foe?”). For a general discussion of the debates on the community property provision at the 1845 constitutional convention, see James W. Paulsen, Community Property and the Early American Women’s Rights Movement: The Texas Connection, 32 IDAHO L. REV. 641 (1996).

32. This aspect of the community property system is developed in detail by Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990).

33. See, e.g., SEYMOUR D. THOMPSON, A TREATISE ON HOMESTEAD AND EXEMPTION LAWS Preface, v n.2 (1878) (stating that “[t]he earliest American homestead law of which this writer has knowledge was an act of the republic of Texas, passed January 26, 1839”).

34. See, e.g., id.35. Joseph W. McKnight, Homestead Law, in 3

NEW HANDBOOK OF TEXAS 680 (1996).36. See, e.g., James W. Paulsen, Introduction: The

Texas Home Equity Controversy in Context, 26 ST. MARY’S L.J. 307 (1995) (referring to the origins of the Texas homestead as “one of the minor mysteries of Texas history”); see also generally Joseph W. McKnight, Protection of the Family Home From Seizure by Creditors: The Sources and Evolution of a Legal Principle, 87

SW. HIST. Q. 369 (1983).37. See, e.g., McKnight, supra notes 35 & 36.38. See generally, e.g., Paulsen, supra note 9, at

270-76.39. This problem is examined thoroughly by

Guillermo F. Margadant, The General Structure of the Law of New Spain, in STATE BAR OF TEXAS, THE INFLUENCE OF SPAIN ON THE TEXAS LEGAL SYSTEM (1992).

40. State v. Cuellar, 47 Tex. 295, 304-05 (1877).41. Hans W. Baade, The Historical Background of

Texas Water Law–A Tribute to Jack Pope, 18 ST. MARY’S L.J. 1, 22 (1986).

42. John Hemphill was a notable exception, in that on arriving in the Republic, he set about learning the Spanish language. See, e.g., ROSALEE CURTIS, JOHN HEMPHILL: FIRST CHIEF JUSTICE OF THE STATE OF TEXAS 27 (Rev. 1997).

43. Trevino v. Fernandez, 13 Tex. 630 (1855). Hemphill corrects error in nature of Spanish title, explaining prior decision on the basis of a mistranslation.

44. Robert N. Jones, The Adoption of the Common Law in Texas, 53 TEX. B.J. 452, 454 (1990).

45. See, e.g., Cartwright v. Hollis, 5 Tex. 152, 166 (1849).

46. See DeBlane v. Hugh Lynch & Co., 23 Tex. 25 (1859) (per Justice James Bell).

47. See supra text accompanying notes 23-27.48. For the whole story laid out in excruciating

detail, see Paulsen, supra note 31. 49. See, e.g., Paulsen, supra note 36, at 310.


Preserving harris county’s legal history:

Can We Do Better Than The

Past?

For my birthday this year, my parents gave me a bound set of Plutarch’s Parallel Lives, a col-lection of short biographies of eminent Greeks and Romans

with a focus on their ethical and moral characters. One chapter is about Solon, a wise Athenian who lived during the sixth century B.C.E., who gave Athens its first code of laws. Some of these laws are understandably primitive, while oth-ers seem relatively modern. Others reso-nate with today’s economic and political circumstances:

Solon observed that the city was filling up with people who now poured into Attica in a steady stream from every quarter because of the security of con-ditions there; at the same time he rec-ognized that the country was for the most part poor and unproductive, and that seafaring people elsewhere are not in the habit of sending their goods to those who have nothing to offer in ex-change. He therefore encouraged the Athenians to turn to the arts of man-ufacture and made a law that no son was obliged to support his father un-less he had first been taught a trade.1

Unfortunately, the Athenians did not preserve Solon’s Code of Laws, which were originally written on wooden tab-lets. By the first century A.D., when Plu-tarch was writing, only a few remained. Plutarch bemoaned that only “some small remains of these were still pre-served in the Prytaneum in Athens in my time.” Probably few Athenians real-ized that these statutes would still have value and meaning, if only they have been saved.

Other civilizations also have not saved their legal codes and other historical writings. The tablets of stone on which the Ten Commandments were said to be inscribed, along with the Ark of the Covenant that housed them, somehow vanished without any explanation. The

By Bill Kroger

suffer the same fate as Solon’s wooden statutes.

II. Time for a ChangeTwo years ago, the Texas Supreme Court formed a task force to study court record preservation and make findings and rec-ommendations on what should be done to better preserve these documents. The Task Force comprises judges, law-

tively few exceptions, most counties have not taken steps to preserve these critical documents for future generations.

Thus, while dozens of counties have district and county court records dating back to the Civil War, early statehood, and even the Republic of Texas, many of these records are now crumbling into dust. Many of the Republic of Texas doc-uments are slowly being dissolved by the iron gall ink used on their pages. The pa-per can be so brittle that merely trying to unfold these records can cause them to break into pieces. It is not uncommon to find Republic of Texas records with mold, missing or torn pages, or holes caused by rats or roaches.

Many historical records have been damaged over the past 150 years by fires, hurricanes, and other natural disasters. Galveston’s historical court records are in cardboard boxes lined with plastic bags because these records are stored only a few blocks from Galveston Bay, and were almost lost in the last hurri-cane.

But we cannot blame all of our prob-lems on rodents and weather events. Some of these documents have been sto-len and are now offered for sale on the internet. In the past, some government officials gave away court records, not realizing their historical value. Even to-day, many district and county clerks al-low unsupervised public access to their historical court records. Very few district and county clerks have policies and pro-cedures on how such court records are to be stored, handled, or secured.

Many counties store their records in basements or attics, often without any controls on temperature and humidity. I have seen 19th century historical court records stored in shipping crates in park-ing lots, stacked on floors, stored under-neath water pipes or electrical conduit, or displayed in public waiting spaces as decorative items. In short, we have not done any better than ancient civiliza-tions in preserving our historical legal documents. If we do not do something to protect these records now, they will

mold grows on a box of unpreserved historic court records.

unpreserved case files are jammed into cardboard boxes.

a box containing unpreserved court records pertaining to howard hughes and his father.

a preserved example of a republic of texas form showing the transition of “harrisburg county” to “harris county.”

the historical document room in the civil courthouse, showing the bar that separates public access from the preserved historical records.

Library of Alexandria, the greatest li-brary of the ancient world, was “acci-dently” burned down by Julius Caesar in 48 B.C.E. (but no one really knows how). The Romans did not save the records pertaining to the founding of Rome. The historian Livy, the great first century A.D. historian, wrote movingly about the exploits of Camillus and Horatius, but was essentially repeating folk tales because he had access to few historical records. The Romans did not even know with certainty where they came from, re-lying instead on mythical stories of An-cient Troy.

One would think that in 2000 years, we would have learned from these mis-takes, and do a better job of preserving our historical records. Yet, after study-ing the problems with Texas’ historical court records preservation, I am con-vinced that important records of our founding will likely disappear like those of ancient civilization if we do not do something now to stop their loss.

I. The Fate of Texas’ Historical Court Records The State of Texas has a history that is as unique and deserving of preservation as these older civilizations. The develop-ment of the Texas legal system has been and is an integral part of the growth, de-velopment, and history of this state. It is why the town centers for most county seats are occupied by a courthouse, and not a church, army base, or other insti-tution. It is why more Texas governors have been lawyers than any other occu-pation. And it is why an understanding of Texas’ history is incomplete without an appreciation of the important role that the legal system played in the de-velopment of every important institution and nearly every historical event.

Because of its size and history, Texas probably has the largest and most com-plete set of court records that docu-ment this important history. These re-cords are spread out among hundreds of courthouses, archives, and repositories throughout the state. And yet, with rela-

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yers, archivists, and historians, as well as representatives of many state agen-cies, including the Texas State Library and Archives Commission, the General Land Office, the State Bar of Texas, and the Office of the Attorney General. I was asked to chair the Task Force and our report was recently published.2

During the next year, the Task Force, the State Bar of Texas, and the State Li-brary and Archives will work together to raise awareness about the need to better protect these historical records. We are working to develop programs to better train district and county clerks and their staff on how to better handle, store, preserve and secure their court records. We are also creating a founda-tion to which individuals can make tax deductible donations for the preserva-tion of these records. Finally, we will present a special historical and preser-vation program for lawyers at the next State Bar Annual Meeting, to be held in Houston in June 2012.

Harris County is one of the leading

Texas counties in preserving its court records. The Harris County District Clerk has raised more than $2 million to preserve the county’s historic dis-trict court records, which are among the most important and complete in the entire state. Our former district clerk Charles Bacarisse and Judge Mark Da-vidson played important roles in getting this preservation project off the ground. Many law firms and individual lawyers contributed towards this preservation project. Today, substantially all of the Harris County district court records from the 19th century, including min-ute books and case files, are fully pre-served.

Additionally, these records are stored in safe, climate-controlled facilities that enable public access to the records with-out compromising their integrity. The Harris County District Clerk has some of the best and most comprehensive pol-icies and procedures for handling such records, and many of these documents are now available online for all to see.

III. The Need to Preserve Harris County’s 20th Century RecordsOur work in Harris County is not com-plete. The State Library and Archives recently revised its preservation stan-dards to clarify that all court records up until 1951 must be preserved. Most of the Harris County records from the first half of the 20th century have not been preserved.

These 20th century records are im-mensely valuable. The City of Houston became one of our greatest cities in the 20th century as a result of such histori-cal events as the Galveston Hurricane of 1900 and the discovery of the East Texas oilfields. Critical Houston landmarks were built or created during the 20th century, including the development of the Houston skyline, the petrochemical industry, the Medical Center, the major airports, Houston’s professional sports teams, and NASA. Many of our most prominent citizens lived during the 20th century, including Jesse Jones, Howard Hughes, Captain James A. Baker, Leon Jaworski, Barbara Jordan, Lightnin’ Hop-kins, and President George W. Bush. Im-portant documents pertaining to these institutions and individuals are found in these records, which is one reason why the Houston Bar Association has made the preservation of these records an im-portant centerpiece of the current bar year.

If we can continue to make progress on preserving our early 20th century court records, we will ensure that these records will be available for future gen-erations of Houstonians.

Bill Kroger is a partner at Baker Botts L.L.P, where he practices energy litigation. He is a past chair of the Houston Bar Foundation, and is the current chair of the Texas Supreme Court Historical Court Records Task Force.

endnotes1. PLUTARCH, THE RISE AND FALL

OF ATHENS: NINE GREEK LIVES 64 (Penguin Classics 1960).

2. A copy of the Task Force’s Report can be found at http://www.supreme.courts.state.tx.us/crptf/docs/TaskForceReport.pdf.

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‘that must have Been some neW year’s eve Party’

West U and Bellaire Go to War

the career of Jimmy allred included service as governor, texas attorney general and judge on the fifth circuit. he was practicing law in houston when he was hired by mayor abe zindler to represent Bellaire in the annexation suit. Photo: Texas State Historical Association.

mayor abe zindler and his sons, circa 1938, including young marvin zindler, second from left. Photo from Bellaire’s Historical Cookbook

versity Place City Council adopted a se-ries of eight ordinances, which attempted to annex territory by progressive steps.4 First, the Council annexed all territory in the cities of Bellaire and Southside Place,

together with expropriation of the municipal buildings. Then, having found a boundary to its city that was not surrounded by the City of Hous-ton, the Council annexed land north, west and southwest of the City of Bellaire that was not part of Houston. It did so without giving notice to either Bellaire, Southside Place, or (especially) the City of Hous-ton.

The next day, the Mayor of Bel-

laire, Abe Zindler,5 was notified of his city’s purported abolition. He expressed great surprise and commented: “That must have been some New Year’s Eve Party!”6 Zindler was clearly a person who knew his way around town, but he didn’t have to go very far to find an outstand-ing attorney to assist the city. Three doors down the street from his house was one of the most experienced and most con-nected lawyers in the state of Texas. By the end of New Year’s Day, Zindler had hired a lawyer well known to his constit-uents and to the Harris County judiciary – James V Allred.7

Jimmy Allred8 was one of the most honored and accomplished members of the Harris County bar. He was appointed District Attorney of Wichita County at the age of 24 and was elected Texas At-torney General at the age of 31. In 1934, he was elected Governor of Texas. In

city did not remove the power of self-gov-ernance from any other city.

After Houston’s annexations, the only direction in which West University was not wholly bordered by Houston was on the west, where it was bordered by the City of Bellaire. Hous-ton had not annexed land around Bel-laire. Being a “home rule” city, West Univer-sity Place’s City Council then passed an ordi-nance giving it-self the right to annex all or part of adjacent land in cities of less than five thou-sand residents. Since Bellaire was, in 1946, largely undevel-oped, it was not eligible to be a home rule city, a status that required a population of five thousand residents. Therefore, it was susceptible to annexa-tion under West University’s new ordi-nance.

West University Place’s legal argument rested on the fact that neither Bellaire nor Southside Place were home rule cit-ies. Therefore, West University Place as-serted that its right as a home rule city to enact ordinances with the power of state law trumped the right of the smaller general law cities to exist.3 This reason-ing was consistent with dicta in the Texas Supreme Court’s prior decision allowing Houston to partially enclose West Uni-versity Place. Because neither Bellaire nor Southside Place was a home rule city, West University Place argued that no home rule city was being deprived of its power of self-governance.

On December 31, 1945, the West Uni-

We all consider the three cities just west of the Texas Medical Cen-ter—West University Place, Southside Place,

and Bellaire—to be close to downtown Houston. Yet, there was a time in which these municipalities were considered to be in the outer suburbs of the city. In fact, when the City of Bellaire was first founded, it was marketed as a place in which people could work small farms and sell produce to residents of Houston.1 The three cities have been surrounded by the City of Houston since 1949, and any physical growth is impossible, unless the City of Houston cedes land (and the tax revenue that comes with land) to them.

The inability to grow must have been frustrating to the leaders of those cities at the time of Houston’s growth in the years that followed World War II. A 1946 Har-ris County case shows the level of frus-tration felt by the City of West University Place. In the late 1930s and early 1940s, the City of Houston exercised its right as a “home rule city” to annex strips of land totally surrounding West University Place on its northern, eastern, and south-ern boundaries. Home rule cities have the power to annex territory adjacent to their boundaries, whereas general law cities (like Bellaire in 1945) can only annex territory with the consent of the inhabit-ants of the new territory. West University Place successfully challenged each of the annexation ordinances in district court, arguing that the City of Houston’s actions would destroy West University Place’s own right as a home rule city to annex additional territory because West Univer-sity Place would be completely encircled. However, West University Place lost in the Texas Supreme Court.2 The Court held that it was permissible for a home rule city to annex territory around anoth-er home rule city, even for the purpose of prohibiting growth by the surrounded city, as long as the annexing home rule

By Judge marK davidson

in this map of the proposed annexation, the attempted new city of West university Place would have included large areas of what is now known as West and southwest houston. From the Southwestern Times, January 24, 1946.


1939, upon leaving the Governor’s office, he was appointed by President Franklin D. Roosevelt to be a judge on the Fifth Circuit. In 1942, probably at Roosevelt’s urging, he resigned to run unsuccess-fully for the U.S. Senate against W. Lee “Pappy” O’Daniel. Roosevelt then ap-pointed him to again serve on the Fifth Circuit, but Senator O’Daniel blocked his confirmation. Allred was therefore, in 1945, practicing law in Houston, awaiting such a time that O’Daniel was no longer in office to apply for a federal judgeship.9

To say that Allred was an intelligent and capable attorney is a severe un-derstatement. As Attorney General, he aggressively brought antitrust actions against large companies and usually served as first chair trial counsel. As a former District Attorney, he had no fear of court-rooms. As a member of the Fifth Circuit, he was known as a hard working and extremely eloquent writer. Not insigni-ficantly, while Governor, he appointed a number of district judges around the state at all levels of the judiciary.

On January 2, 1946, the first day the Harris County courthouse was open af-ter the annexation, the two annexed cit-ies, Bellaire and Southside Place, filed a lawsuit challenging the annexation ordi-nances.10 The case, given Cause Number 324,946, was assigned to the 80th Dis-trict Court, whose Judge, Roy Campbell, resided in West University Place. Allred had clearly spent most of New Year’s Day preparing the Petition,11 since the docu-ment was filed at 8:48 a.m. the next day. A temporary restraining order was sought against the enforcement of the order, and Judge W.W. Moore of the 11th District Court granted the request ex parte. Judge Campbell immediately recused himself, and Regional Administrative Judge Max

Rogers12 appointed Judge J. G. Howard of Galveston to hear the case.13

In early February, Harris County Dis-trict Attorney A.C. Winborn intervened in the lawsuit, bringing a quo warranto action. Winborn asked the court to rule that the West University Place City

Council was without authority to take any action extending its ordinances to the residents of Bellaire. His pleadings also suggest that he was acting “upon the relation” of Glenn H. McCarthy, among others. McCarthy was building a hotel on the nearby corner of Bellaire Boule-vard and South Main Street that would be named the Shamrock Hotel. The re-cord is silent as to why McCarthy felt a need to intervene and how he was able to persuade the District Attorney to inter-vene in his official capacity and on behalf of private citizens. Winborn assigned the case to Assistant District Attorney Bob Casey, a recently returned veteran of World War II who was running for State Representative in that year’s Demo-cratic Primary.14

The case was assigned to trial on June 15, 1946, only five months after it was filed. The proceedings started with Gov-ernor Allred sending a telegraph to the Court asking for a one day continuance,

because his flight had been delayed. The request was probably granted, since the record reflects that the case was tried on June 16th. Judge Howard heard less than a day’s evidence and argument, and ruled that the annexations were void. An appeal was taken to the First Court of

Appeals, located in Galves-ton. In an opinion by Justice T.H. Cody,15 the Court ruled that the power of a home rule city to annex territory did not extend to territory located in other cities, even if the other cities were not home rule cities.16 The trial court was affirmed. Bellaire and Southside Place would be allowed to continue as independent municipali-ties. More significantly, the annexation of unincorpo-rated areas beyond Bellaire was set aside, meaning that West University Place’s borders would forever be locked in.

This case is of great sig-nificance in the development of Harris County and the City of Houston. Had the suburban cities annexed territory at will, Houston would have, in time, been sur-rounded by suburban cities, such as has happened to Dallas. It would have been unable to develop as a large city under one government. When the City of Bel-laire tried to annex a few blocks of land in 1949, the City of Houston preemp-tively annexed a strip around the city, prohibiting its future growth. In time, all home rule cities in Harris County, ex-cept Pasadena and Baytown, would find themselves cut off from growth by an-nexation and, later, adoption of extrater-ritorial jurisdiction statutes.

West University and Bellaire have been, since their creation, cities where commercial development is severely restricted by zoning ordinances. Hous-ton, of course, is not. Part of the Galle-ria Mall, and all of the Greenway Plaza and Astrodome/Reliant Arena area were

the city of Bellaire, circa 1946. in the upper left portion of the picture is the future location of the galleria. in the center foreground is the future location of greenway Plaza. Photo courtesy of Bellaire Public Library.


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within the borders of the attempted an-nexation. It is an open question whether any of these developments would exist today but for the outcome of this case.

Peace has reigned in relations between the three cities since the 1940s. If ever a reader of this article drives over the railroad tracks on Bellaire Boulevard from West University Place to Bellaire, you will find a marker that reads: “Bel-laire 1909.” What would have happened to that marker and to the City of Bel-

laire, in the absence of quick and deci-sive legal intervention, can only be left to speculation. Today, most residents of West University, Southside Place and Bellaire like their small town govern-ments. Mayor Zindler and Mayor S.F. Kachtick of Southside Place did not emu-late Prime Minister Neville Chamberlain of Great Britain and opt for a settlement to achieve “Peace in our time.” For their resolution, and the work of their law-yers and our legal system, the residents

of those neighborhoods should be grate-ful.

i wish to thank cade Mason, a second year law student at the university of houston law school, for his help in the research, writing and editing of these articles. Mary cohrs of the Bellaire Public library was most generous in allowing me access to the archives of the library. finally, my high school history teacher, richard nevle, is the source of my interest in history. he died in July of 2010. i hope i made him proud.

Mark Davidson is a retired judge and a resident of the City of Bellaire.

endnotes1. Early brochures called the area “Westmoreland Farms.”2. City of Houston v. State ex rel. City of W. Univ. Place, 142

Tex. 190, 176 S.W.2d 928 (1943).3. See SOUTHWESTERN TIMES, January 4, 1946

(quoting Mayor A.L. Kerbow of West University Place).4. City of W. Univ. Place v. City of Bellaire, 198 S.W.2d 766,

766 (Tex. Civ. App.—Galveston 1946, no writ).5. Zindler was the mayor of Bellaire from 1937 to 1943

and from 1945 to 1947. His son, Marvin, became well known as a deputy sheriff and as a reporter for KTRK-TV.

6. BELLAIRE’S OWN HISTORICAL COOKBOOK 48 (1969), on file with the author. The comment of Ripley Woodard, the City Attorney of Southside Place, was even more succinct: “Nuts!” W. University Council Passes Ordinance Annexing Southside and Bellaire in New Year’s Eve Coup, Southwestern Times, Jan. 3, 1946, at 1, 8. One year and a day before, General Anthony McAuliffe had given the same reply when the Nazi army had demanded surrender of Bastogne during the Battle of the Bulge.

7. In 1945, Zindler lived at 4702 Bellaire Blvd. (at its intersection with Post Oak Road) and Allred lived at 4720 Bellaire Blvd. (at its intersection with First Street).

8. His birth name was James Burr V Allred, having been named after an uncle named Burr and another uncle named V. When he enlisted in the Navy during World War I, the clerk left off Burr from his name, and Allred accepted that change the rest of his life.

9. O’Daniel would leave the Senate on December 31, 1948. Allred was appointed as a federal judge in 1949.

10. The information about this suit comes from the case file, which is available in microfiche form at the Harris County District Clerk’s office.

11. Allred attended Rice University for one year before attending law school. Rice was not in a New Year’s Day bowl game on January 1, 1946.

12. Judge Rogers had been appointed Regional Administrative Judge by Allred.

13. Judge Howard had been appointed as a district judge by Allred.

14. Casey would serve as State Representative from 1947-1951, County Judge from 1950-1958 and as a member of the U.S. Congress from 1958 until 1975.

15. Justice Cody had been appointed Justice of the First Court of Appeals by Allred.

16. City of W. Univ. Place v. City of Bellaire, 198 S.W.2d 766 (Tex. Civ. App.—Galveston 1946, no writ).


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cause no 893,663; Anthony D. Cox v. Yoko Ono Lennon

I Really Want To See You

yoko ono, Kyoko cox and anthony cox in January 1965. Getty Images.

Ono’s visitation rights, in the Court of Domestic Relations Number Four.5 To make sure that Ono did not use a visitation period as an oppor-tunity to flee with her daugh-ter, Judge Pete Solito o r d e r e d that a $20,0006 bond be posted as a con-dition of exercise of visitation by Ono.7

Matters came to a head the next day, when Lennon and Ono arrived in Hous-ton to pick up Kyoko for the court or-dered visitation. Cox refused to allow her to be picked up by Ono’s lawyer, Ed Murr.8 Cox asserted that Kyoko would suffer “severe emotional distress” if any-one other than Ono were to pick her up. When Ono attempted to collect her daughter in person, she was rebuffed. The next day, Ono brought a motion for contempt against Cox. On December 22, 1971, Cox appeared at the contempt hearing but refused to bring his daugh-ter. Furthermore, he apparently told the judge that he never would allow visita-tion because the results would be “di-sastrous” for his daughter. The judge did not agree and he told him so. Judge Solito found Cox guilty of contempt of court and ordered him jailed for five days.

A writ of habeas corpus was immedi-ately filed, and Justice Phil Peden of the First Court of Civil Appeals, acting ex parte, ordered Cox released on a $5,000 bond pending the determination of the appeal. Cox had contested the validity of the contempt order on various grounds from jurisdictional issues to arguing that he was “emotionally and psychologically unable to comply with the order.” On March, 16, 1972, in an opinion by Chief Justice Tom Coleman, the Court of Ap-peals rejected all of Cox’s arguments, reversed Peden’s ruling, ordered the writ denied and Cox back into custody.9

Ono divorced Cox on February 2, 1969, in the Virgin Islands. The judge signed a decree stating that the child custody issue would be resolved in the future by a “Court of competent jurisdic-tion.” When the parties divorced, they had a fairly amicable relationship and apparently saw no need to formalize a custody arrangement for Kyoko. Howev-er, what was sweet then turned so sour, because Cox and Ono began disagreeing about Ono’s access to Kyoko. These dis-putes were exacerbated by Cox’s frequent moves to various locales across the uni-verse, including New York, Canada, Cal-ifornia, Hawaii and Spain.3 Ono claimed to have spent more than £50,0004 trying to see Kyoko during this period, tracking Cox here, there, and everywhere.

By 1971, Cox had remarried. Melinda Kendall, a museum curator with fam-ily in Houston, married Cox and moved with him and Kyoko to the Spanish is-land of Majorca. One day, Lennon and Ono—and possibly various “henchmen” under their employ—took Kyoko from her school. A criminal proceeding en-sued against Ono, and a Spanish court decided that Kyoko should get back to where she once belonged, living with her father. The attempted abduction caused Cox to fear that Ono would try to take permanent possession of Kyoko any way she could. Cox moved with his family to Houston, where he, Kendall and Kyoko settled down and became evangelical Christians.

Ono’s continued frustration at being denied visitation led her to file for custo-dy of Kyoko in the Virgin Islands, where the couple had been divorced. Ono feared that if she chased Cox to Texas, he would simply move to a different place before a custody order was obtained. But, it ap-peared that Cox agreed it was time that he and Ono got a real solution, and he was finally ready to have a court decide this custody matter.

On July 1, 1971, Cox initiated a child custody proceeding in Harris County. On December 17, 1971, he was named tem-porary managing conservator, subject to

The courts of the Harris Coun-ty Family Division work long and hard hours eight days a week to perform a sad task – ending marriages involving

children. Sometimes, disputes involv-ing children continue for years after a judge ends a marriage, becoming a long and winding road of litigation. Continu-ing custody disputes, visitation orders to reflect changes in the parties’ lives and child support enforcement fights are heard every day in our courts.

One of the more notable cases ever heard in the Harris County family courts involved Yoko Ono Lennon, the wife of John Lennon of the Beatles, and her ex-husband, Anthony D. Cox. Cox embraced the various movements of the sixties, describing himself as a beat, then a beatnik, then a hippie. He became an eccentric American artist and filmmaker and met Ono in 1961, after he had devel-oped an admiration for her avant garde artwork. Cox would later direct Ono’s experimental film No. 4, which was en-tirely comprised of close-up shots of peo-ples’ backsides.

Cox and Ono were married on June 6, 1963. Their daughter, Kyoko Chan Cox, was born on August 3, 1963. The marriage quickly fell apart, but the cou-ple stayed together for the sake of their joint career. They performed at Tokyo’s Sogetsu Hall with Ono lying atop a piano played by John Cage.1 Soon the Coxes re-turned to New York with Kyoko. In the early years of the marriage, Ono left most of the parenting to Cox, who spent hard days working like a dog as a househus-band and a publicity manager, while Ono pursued her art full-time.2 Cox appar-ently agreed to this arrangement—Ono had always made clear that she expected him to be involved in raising Kyoko. Ono and Cox’s romance reached the end in 1966, when Lennon and Ono met at one of Ono’s art shows and became insepa-rable thereafter.

By Judge marK davidson

Judge Pete solito


apparently believed that in order to keep Kyoko, he would have to hide his love away.

Having had his orders disobeyed and his authori-ty snubbed, Judge Solito entered a final and permanent custody de-cree in fa-vor of Ono. It did her no good. N o t w i t h -s t a n d i n g thousands of dollars paid to pri-

vate investigators, Ono was unable to get custody or even visitation with her daughter. Kyoko and her father totally and completely disappeared.

Living an underground existence, Cox became a nowhere man, knowing not

The file reflects that the sheriff re-turned the court’s order with the nota-tion “Returned unexecuted—unable to locate.” While the Court of Civil Appeals considered the writ, Cox used the time to make it impossible for any court order to be en-forced. During the pendency of the habeas cor-pus proceeding, Cox disappeared with eight-year-old Kyoko, in violation of the custody order and, in the pro-cess, forfeited his bond. Cox later said that he believed he was not getting a fair shake in the court proceedings and that it was only a matter of time before Len-non and Ono would be able to use their influence to take Kyoko from him. Cox

where he’s going to. He changed Kyoko’s identity nine times. Her aliases included Rosemary, Ruth Holman, and Kay. Early on, Cox got by with a little help from his friends, who introduced him to a re-ligious group called the Church of the Living Word, also known as “The Walk.” The Walk was different from a typical mainstream church, and it was char-acterized as a blend of Pentacostalism, occult practices and Eastern mysticism. Cox and Kyoko joined the church and lived with its members in Iowa and Cali-fornia. After five years with The Walk, Cox was discontented with its practic-es, so he and Kyoko left the church and again seemed to vanish in the haze.

Ono made several public attempts to contact Kyoko over the years, including at least two televised pleas for visita-tion and the song “Don’t Worry, Kyoko.” One televised plea occurred on The Dick Cavett Show, where Ono appeared with John Lennon to discuss various matters of culture and music. When Cavett asked Lennon about his home, Lennon said it

yoko and John lennon made several public attempts to contact Kyoko over the years she lived an underground existence with her father.

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would be a great place for Kyoko to visit and asked Cox to allow Ono to see her daughter.10

Less than a year after that appearance, Lennon and Ono returned to The Dick Cavett Show and, during the course of their interview, summarized their cus-tody dispute with Cox.11 Lennon said that he and Ono now had two courts, the Harris County court and the court in the Virgin Islands, that had given Ono custody of Kyoko, but that Cox was hid-ing with Kyoko somewhere in the U.S. Visibly agitated, Lennon said that Cox’s behavior was “killing” Ono because it had been two years since Ono had seen Kyoko and one year since Ono had spo-ken to her on the phone.

Unfortunately for Ono, there would be no reply to her pleas for many years. In 1980, Cox and seventeen-year-old Kyoko briefly resurfaced, sending Ono a sym-pathetic telegram after Lennon’s murder. Then, around 1986, Cox unexpectedly materialized again to give an interview to People magazine.12 The article dis-cussed Cox’s life on the run with Kyoko and his past involvement with The Walk. Cox revealed that Kyoko had turned out to be “a marvelously bright woman” and that, despite her unusual childhood, “she came out of the experience smell-ing like a rose.” Since Kyoko was now an adult, Cox said, it would be Kyoko’s choice whether to have a relationship with Ono, and that she was not fond of being in the public eye. Afterward, the bitterness between the parents lessened slightly, and Ono publicly announced in an open letter that she would no longer seek out Kyoko but still wished to make contact with her.

Ono would not hear from Kyoko until 1994, when Kyoko, 31, decided to start her own family. Subsequently, Kyoko met Ono and her stepbrother, Sean Len-non. In 2001, Kyoko appeared with Ono in a British television special called The Real Yoko Ono. Kyoko has described the years away from her mother as painful but affirms her love for her father. She acknowledges that Cox had problems


but believes that his behavior was moti-vated by love because Kyoko was his only child.

In 2003, Ono and Kyoko were seen together celebrating Ono’s seventieth birthday. Over the years, Kyoko has grown closer to Ono and Sean and still keeps in touch with Cox. Kyoko attempts to keep a low profile. She reportedly is married with children and works as a teacher. That Ono and Kyoko’s relation-ship seems to be getting better all the time is proof that all you need is love.

Sadly, the original file of this case (with autographs of some value) was shredded by the District Clerk’s office in the mid-1980s. Today, we are left with microfilm copies of varying quality to tell us the tragic story of a father who flouted au-thority and kept a child from her mother in the name of love.

Imagine.

Mark Davidson is a retired judge and a resident of the City of Bellaire.

endnotes1. Cage was an American composer best known for

his 1952 composition 4’33”, the three movements of which are performed without a single note being played. Sort of like a Number 9 Dream.

2. This information came from a Wikipedia entry on Yoko Ono. See http://en.wikipedia.org/wiki/yoko_ono.

3. Because Cox never went to the Soviet Union, Ono never had to go back to the U.S.S.R. It would have done her little good if she had, since the Soviet Union was not (and Russia is not) a signatory to Section 20 of the Hague Convention.

4. This is about $120,000 in 1971 dollars, or about $600,000 in 2011 dollars.

5. Court of Domestic Relations Number Four became the 311th District Court in 1977.

6. Adjusted for inflation, this is about $110,000 in 2011 dollars.

7. For what it is worth, John Lennon and Yoko Ono had married on March 20, 1969.

8. Ed Murr was a partner in the firm of Solito, Murr and Vetrano before the senior named partner became judge.

9. Ex parte Cox, 479 S.W.2d 110 (Tex. Civ. App.—Houston [1st Dist.] 1972, orig. proceeding).

10. http://www.youtube.com/watch?index=18&v=9Lftib KEA7U&list=PL064C0F53F492BEE6. The discussion about Lennon’s house begins at about the 3:13 minute mark.

11. http://www.youtube.com/watch?v=SDZeH9KJAUs. The discussion about Kyoko begins at about the 5:55 minute mark.

12. Calio, Jim. “Yoko Ono’s Ex-Husband, Tony Cox, Reveals His Strange Life Since Fleeing with Their Daughter 14 Years Ago.” People, Vol. 25, No. 5, February 3, 1986, available at: http://www.people.com/people/archive/article/0,,20092860,00.html

W ho could resist using the Beatles iconic lyrics in an article that in-volves a Beatle? Not the author, nor the editors. Here’s a look at all 20 instances where song lyrics appear in the article:

lyrics song Title album

1 “eight days a week” “Eight Days a Week” Beatles for Sale (1964)

2 “long and winding road” “The Long and Winding Road”

Let It Be (1970)

3 “working like a dog” “A Hard Day’s Night” A Hard Day’s Night (1964)

4 “the end” “The End” Abbey Road (1969)

5 “what was sweet then turned so sour” Original lyric: “what is sweet now, turns so sour”

“Savoy Truffle” The Beatles (or The White Album) 1968

6 “across the universe” “Across the Universe” Let It Be (1970)

7 “here, there, and everywhere”

“Here, There and Everywhere”

Revolver (1966)

8 “get back to where she once belonged” Original lyric” “Get back to where you once belonged”

“Get Back” Let It Be (1970)

9 “got a real solution” Original lyric: “You say you’ve got a real solution”

“Revolution” or “Revolution 1”

Revolution is from Side B of the “Hey Jude” single (1968). Revolution 1 is from The Beatles (or The White Album) (1968).

10 “nowhere man” “knowing not where he’s going to” Original lyric: “knows not where he’s going to”

“Nowhere Man” Rubber Soul (1965).

11 “got by with a little help from his friends” Original lyric: “I get by with a little help from my friends”

“With A Little Help From My Friends”

Sgt. Pepper’s Lonely Hearts Club Band (1967).

12 “seemed to vanish in the haze” Original lyric: “seems to vanish in the haze”

“Help!” Help! (1965).

13 “The judge did not agree and he told him so.” Original lyric: “The judge does not agree and he tells them”

“Maxwell’s Silver Hammer”

Abbey Road (1969).

14 “he would have to hide his love away” Original lyric: “you’ve got to hide your love away”

“You’ve Got To Hide Your Love Away”

Help! (1965).

15 “no reply” “No Reply” Beatles For Sale (1964).

16 “getting better all the time” “Getting Better” Sgt. Pepper’s Lonely Hearts Club Band (1967).

17 “all you need is love” “All You Need Is Love”

Magical Mystery Tour (1967).

28 “Imagine” “Imagine” Imagine (1974). By John Lennon.

19 “Number 9 Dream” “#9 Dream” Walls and Bridges (1974). By John Lennon.

20 “back to the U.S.S.R.” “Back in the U.S.S.R” The Beatles (or The White Album) 1968.


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100 Things You Might Not

Know About the HBA

Square, which was bordered by Con-gress, Preston, Fannin and San Jacinto streets.

6. Oran T. Holt, president of the Harris County Bar Association from 1901-1903, later served as mayor of Hous-ton.

7. Attorneys who wanted to join the HBA in 1904 had to submit to the president an application that was “endorsed and vouched for by three members of the association in good standing.” The ap-plication then went before the associa-tion, where four-fifths of the members present had to vote in favor of the ap-plicant by secret ballot.

8. To join the HBA in 1904, attorneys paid a $5 admission fee and annual dues of $3.

9. The earliest group photo of HBA mem-bers dates from 1912. It is a composite photo of the HBA’s 284 members and included two women: Hortense Ward, the first woman licensed in Texas, and Alice Tiernan.

10. The first HBA publication appeared in 1939 and was called the Syllabus.

11. The HBA has published a pictorial roster of members since 1939.

12. During the United States’ involvement in World War II, almost one-third of all HBA members were on active mili-tary duty.

13. Starting in the early 1940s, the HBA leadership was instrumental in estab-lishing both prongs of indigent de-fense in Houston – civil and criminal. Houston was the first city in Texas to operate a legal clinic with a full-time director.

14. The HBA has had only five executive directors (initially called “executive secretaries”) since 1939: Ruth Laws, 1939-1962; Ann Krohn, 1962-1969; Gay Platt, 1969-1976; Burton Berger, 1976-1981; and Kay Sim, 1981-present.

15. There have been three sets of parent-child HBA presidents: the Hon. Ewing Werlein (1942) and the Hon. Ewing Werlein, Jr. (1988-89); Charles R. “Bob” Dunn (1979-80) and Amy Dunn Taylor (2000-01); and James B. Sales (1980-81) and Travis J. Sales (2008-09). Ewing Werlein, Jr.’s great-uncle, Judge Presley K. Ewing, also served as president of the HBA in 1912.

16. The Houston Bar Association Auxilia-

Given this issue’s focus on historical interests, it seemed appropriate to include some history of the HBA as well.

The list includes interesting, unique, historic, or helpful facts about the HBA’s past, present, and future. Of course, readers likely will have their own “Things to Know about the HBA” that could be added to this list. If you have any questions about any of the programs or volunteer opportunities offered by the HBA, please call the HBA office at 713-759-1133.

1. The Houston Bar Association was first formally organized in 1870, but little is known about its activities because of an absence of internal records. That iteration of the HBA dissolved some-time during the later 1870s.

2. The Harris County Bar Association appeared in December 1901 with the mission of “weeding out shysters.” The present day Houston Bar Associa-tion was formed on March 26, 1904

to “cultivate a social spirit” among lawyers.

3. The first president of the Houston Bar Association in 1870 was Judge Peter

Gray, a distin-guished jurist who was one of the founding members of the law firm of Gray, Botts & Baker

(now Baker Botts) and who later served on the Supreme Court of Texas.

4. An April 1870 article in the Houston Telegraph reported that the newly formed Houston Bar Association’s ob-jectives were “raising the standard of the legal profession and the purchase of a law library.”

5. In 1870, most of Houston’s 37 law-yers had offices around Courthouse

Peter gray


ry, originally called the Women’s Aux-iliary, was established in 1948. Its ini-tial role was to help with social events, including the first Harvest Party and the State Bar Annual Meeting. Today, the HBA Auxiliary also sponsors pro-grams that serve the profession and the community.

17. From 1949 until 1998, the Harvest Party was strictly a social event. In 1999, it became the major fundraiser for the Houston Bar Foundation.

18. Wilminor Carl was the first woman to serve on the HBA Board of Direc-

tors in 1952. She gradu-ated from the Uni-versity of Texas Law School in 1929. Ms.

Carl, born in 1905, recently celebrated her 106th birthday.

19. The HBA has had its office in five loca-tions: the Harris County courthouse, the Houston Club building, the Hous-ton Bar Center Building, Texas Com-merce Tower, and First City Tower, its present home.

20. The HBA’s current CLE program was established in the early 1960s as the Lectures and Institutes Committee. In 1965 it became the Continuing Legal Education Committee.

21. In its early days in the 1960s, Housto-nians could call the Lawyer Referral Service and make an appointment for $1 to discuss their legal problem with a qualified attorney. Under the pro-gram, lawyers charged only $10 for a full hour of advice.

22. The first issue of The Houston Lawyer was published in November 1963. The editor-in-chief was attorney Quinnan Hodges.

23. In 1965, under the administration of W. James Kronzer, the HBA removed the “white only” clause in its constitu-tion.

24. From the late 1960s through the early 1990s, the Inns of Court Club oper-ated as a place for Houston attorneys to have lunch and socialize with cli-ents and one another. The club got its name from a group of HBA members

who met for lunch and refreshments every Friday in a room at the Houston Club.

25. Twenty-three HBA presidents also each served as president of the State Bar of Texas.

26. Leon Jaworski also had the distinction of serving not only as HBA president but also as State Bar president (1962-63) and American Bar Association president (1971-72).

27. The HBA celebrated its centennial in 1971 with a dinner at the Astroworld Hotel. During 100 years, the associa-tion had grown from 100 members to more than 2,800 members. Royce Till presided over the dinner as president. Introductory remarks were made by Leon Jaworski, then ABA President-Elect, with a keynote address by Chief Justice Robert W. Calvert of the Texas Supreme Court.

28. The HBA has conducted judicial polls since 1971. In election years, the HBA conducts the Judicial Candidate Qual-ification Questionnaire before the pri-mary and the Judicial Preference Poll before the general election. In non-election years, the HBA distributes a Judicial Evaluation Questionnaire to determine members’ evaluations of sitting judges.

29. The Juvenile Justice Mock Trial Pro-gram is one of the HBA’s oldest com-munity service programs. In 36 years, the program has taught over 37,000 eighth graders about the legal system and the courts.

30. The Dispute Resolution Center was originally established in 1980 as the Neighborhood Justice Center, with seed money from an American Bar Association grant to establish alterna-tives to formal litigation.

31. In 1981, the HBA established its first private attorney pro bono program to represent the “working poor” of Har-ris County, which has now evolved into the present day Houston Volun-teer Lawyers Program.

32. The Hon. Joe L. Draughn was Asso-ciate Presiding Judge for the City of Houston when he served as president of the HBA in 1981-82. He went on to serve as an appellate justice.

33. The Houston Bar Foundation was established as the charitable arm of the HBA in 1982. William Key Wilde

was HBA president, and James B. Sales served as the Foundation’s first chair-man of the board in 1983.

34. The forerunner of the Houston Young Lawyers Association was the Houston Junior Bar, organized in 1937. The president of HYLA sits on the HBA board of directors as an ex officio member.

35. Ten HBA presidents have also served as president of the Houston Young Lawyers Association: Denise Scofield, T. Mark Kelly, Hon. Andrew S. Hanen, Scott E. Rozzell, Otway B. Denny, Jr., Albert B. Kimball, Jr., John J. Eiken-burg, James Greenwood III, John L. McConn and Lewis W. Cutrer.

36. Five HYLA presidents later chaired the Houston Bar Foundation: Mark S. Snell, T. Mark Kelly, Scott E. Rozzell, Otway B. Denny, Jr., and John D. El-lis, Jr.,

37. The HBA Historical Committee has conducted “Living History” interviews with 84 distinguished members of the legal community to preserve their memories and perspectives on law practice in Houston. This is an ongo-ing project of the committee.

38. In March 1985, during the administra-tion of Frank B. Davis, the HBA joined Allied Bank of Texas in sponsoring the Art and the Law exhibit presented by West Publishing Company. The program was a nationally-recognized forum for artists to express their con-cepts of law in our society.

39. When a Harris County judge is sworn in, the HBA assists in posting notices at the courthouse, in the Houston Bar Bul-letin and on the HBA website, and also prepares and distributes programs, and greets guests at the door of the court-room, if requested by the judge.

40. The first Law Week Fun Run benefit-ing The Center (at the time called The Cen-ter Serving Per-sons with Men-tal Retardation) was held on May 3, 1986. It was sponsored by Commonwealth Financial Group and coordinated by the HBA and HYLA. Later

Wilminor carl


renamed for the late John Eikenburg, who started the run as HBA president, it is today one of the longest-running charitable fun runs in Houston and has raised nearly $929,400 for The Center, which serves people with de-velopmental disabilities.

41. In 1985, the HBA established the “Ju-dicare” program to provide free legal services to senior citizens over the age of 60. Now called the Elder Law Program, it continues to provide wills and other legal services to low-income seniors.

42. The LegalLine program was estab-lished in 1985, giving the public the opportunity to call the HBA office and speak to an attorney over the phone for answers to legal questions, brief legal advice and other resources. In 1991, the LegalLine program ex-panded to twice a month, on the first and third Wednesday. The LegalLine program is staffed by 24 volunteer lawyers each night it is provided, for a total of 48 volunteers monthly.

43. In 1986, the HBA partnered with the Mexican American Bar Association and Hispanic Bar Association to of-fer Consejos Legales, a LegalLine program held on the first Thursday of each month for Spanish-speaking residents.

44. A 1986 Houston Bar Bulletin attempted to recruit attorneys interested in starting a bass fishing tournament. As there has never been an official HBA bass fishing tournament, that article must have been overlooked by most readers.

45. The first issue of The Houston Lawyer that was devoted to one specific area of law was the September-October 1986 issue on Alternative Dispute Resolution. Harold Metts of Baker Botts was president of the HBA.

46. A former editor-in-chief of The Houston Lawyer is now a federal judge – the Hon. Sim Lake, who was editor in 1986-87 as a partner at Fulbright & Jaworski.

47. In September 1987, the HBA joined the celebration of the Bicentennial of the Constitution by sponsoring commemorative banners throughout downtown, at the urging of HBA President Raymond C. Kerr. At the city’s huge celebration at Sam Houston Park and along the bayou, the HBA

sponsored a stage that included per-formances by local groups and “Con-stitutional Capers” spotlighting attor-neys and members of the judiciary.

48. The Houston Lawyer began its tradition of interviewing each new president of the Houston Bar Association in 1988, with the Hon. Ewing Werlein, Jr., who was then a partner at Vinson & Elkins and currently serves as a United States District Judge for the Southern Dis-trict of Texas.

49. The HBA’s all-lawyer musical produc-tion, “Night Court,” has been running since 1989, raising over $500,000 for local charities. This year’s production, held at the Wortham Center, featured more than 50 lawyers and judges.

50. The HBA Special Olympics Commit-tee, established in 1989 by the Hon. Eugene Cook as president, has gar-nered awards as the only volunteer effort of its kind by a bar association in Texas. Justice Cook was appointed as a Texas Supreme Court Justice after being elected president of the HBA. He traveled back and forth from Austin to serve his year as president in 1989-90.

51. The Committee on Minority Oppor-tunities in the Legal Profession was established by HBA President Pearson Grimes in 1990-91. In 2011, the com-mittee marked 14 years of sponsoring its 1L Summer Clerkship Program for minority students in all three Houston law schools.

52. On May 1, 1991, the HBA, the Harris County Historical Commission, and

the law firm of Butler & Binion dedicated an Offi-cial Tex-as His-torical Marker to com-memo-rate the

history of the HBA. It is located in front of the 1910 Courthouse on Fan-nin Street.

53. In 1992, under the administration of Ben L. Aderholt, the Houston Bar Association published A Commitment to Public Service: The History of the Houston Bar Association. The book was

written by Eric L. Fred-rickson, who had a mas-ter’s degree from the University of Houston’s Institute for Public History and was then a

student at the University of Houston Law Center.

54. Based on an ABA program, the Inter-professional Drug Education Alliance (IDEA) program was created in the 1992-93 bar year to send teams of law-yers and medical professionals into 5th grade classrooms to talk about the legal and medical consequences of substance abuse. Today, the program has reached over 45,000 students.

55. In 1989, the HBA board of directors adopted “Professionalism: A Lawyers Mandate,” to encourage and inspire lawyers to follow the highest stan-dards of the profession. The mandate is still given to every new HBA mem-ber and to every new Harris County judge.

56. Since the 1993-94 bar year, the HBA has been a co-sponsor of The People’s Law School, presented by Richard Alderman and the UH Center for Consumer Law. Approximately 400-500 people attend each fall and spring session, learning about laws that affect their daily lives.

57. For the cover of its 30th anniversary issue in 1993, the first editor-in-chief of The Houston Lawyer, the late Quinnan Hodges, was seated at a piano at the Inns of Court Club while other former editors held up a birth-day cake, which they later enjoyed at a commemorative luncheon.

58. Since 1995, the HBA has contributed more than $295,000 to print and dis-tribute over 280,000 free legal handbooks in the commu-nity.

32 July/august 2011 thehoustonlawyer.com

59. In 1995, under the administration of Kelly Frels, the HBA published the Elder Law Handbook - the first in a series of three free legal handbooks for the public. It was followed by the Fam-ily Law Handbook in 1997, and the Consumer Law Handbook in 1998.

60. The HBA’s free Elder Law, Family Law and Consumer Law Handbooks are printed in both English and Span-ish, and have also been printed in Chinese, Korean and Vietnamese, in conjunction with the Asian legal com-munity.

61. Prior to 1997, The Houston Lawyer was primarily published in black and white, with color covers and some spot color inside. In January-February 1997, it transitioned to a four-color publication.

62. The HBA launched its first website in 1997.

63. An HBA team sponsored by the HBA Lawyers for Literacy Committee has won nine first-place titles in the Houston READ Commission’s Great Grown-up Spelling Bee, benefiting literacy projects. An HBA team has won the title outright seven times and

tied for first place twice.

64. The first HBA Habitat for Human-ity house was built in 1998 during a “blitz week” supported by former President Jimmy Carter, who visited the HBA home during its construc-tion. The Hon. Richard Trevathan was president when the HBA estab-lished a task force to raise funds for its first house; D. Gibson Walton was president when the first house was built; and the Hon. Andrew S. Hanen chaired the first Habitat Committee as president-elect. In 2007-08, HBA President Tommy Proctor added a component that provides wills for Habitat homeowners.

65. The HBA has now built 14 homes through Habitat for Humanity and is currently raising funds for a 15th home.

66. The HBA celebrated its 125th anni-versary on May 19, 1995, with a gala at the Westin Oaks Ballroom, where more than 800 guests attended. Spe-cial guests were the Justices of the Supreme Court of Texas, the Court of Criminal Appeals, and the Fifth Cir-cuit Court of Appeals, as well as May-

or Bob Lanier. Kelly Frels of Bracewell & Giuliani passed the gavel to Charles R. Gregg of Hutcheson & Grundy as HBA President.

67. The HBA has a 30-minute video on its history, “125 Years of Justice, Ser-vice and Professionalism,” narrated by iconic Houston news anchor Ron Stone and produced by Stonefilms.

68. Since 1998, the HBA Lawyers for Lit-eracy Committee’s annual Fall Book Drive has distributed over 203,000 books to local shelters and literacy projects.

69. In 2000, the American Bar Associa-tion’s Standing Committee on Legal Services honored the HBA with the Louis M. Brown Award for outstand-ing programs that serve the legal needs of people with modest means.

70. Roland Garcia in 2001-02 was the first Hispanic to serve as president of the Houston Bar Association.

71. In 2002-03, HBA President Tom God-bold established “A Year of Giving,” the HBA’s annual blood drive in the legal community. In 2008, the blood drive was renamed after the late Paul


E. Stallings, a Vinson & Elkins part-ner and longtime supporter of blood donation.

72. For its 40th anniversary issue in 2003, The Houston Lawyer gathered 17 of its former editors-in-chief in front of the printing presses at Earth-Color Houston for a cover photo. The anniversary edition also featured an insert with an exact replica of the first November 1963 issue.

73. In 2003-04, HBA President Michael Connelly directed the HBA to devel-op KidZone, a section of the website that provides information on laws, civics, safety and other topics for children, teens, parents and educa-tors.

74. The HBA has been honored four times with the National Associa-tion of Bar Executive/LEXIS Public Service Achievement Award: 1994 – Lawyers in Public Schools Program; 1997 – Legal Handbook Series; 2004 – A Year of Giving Blood Drive; and 2009 – Veterans Legal Initiative.

75. In 2004-05, HBA President Rocky Robinson and the Lawyers Against Waste Committee planted 300 trees in MacGregor Park during the spring Trash Bash.

76. In 2005-06, the HBA established its program on “The Importance of Jury Service” which has now reached nearly 22,000 high school seniors. HBA President Randy Sorrels also learned about the importance of hur-ricane preparedness that year, as he led disaster relief efforts for Hurri-canes Katrina and Rita.

77. The Houston Lawyer won first place for public relations magazines in the 2008 Lone Star Press Awards for an issue on legal problems facing vet-erans.

78. In the past two decades, the HBA has nine times won the State Bar of Texas Award of Merit for best overall programs of a large bar association.

79. In 2008, the HBA won the Tweed Award, the American Bar Associa-tion’s highest honor for a local bar association, for its Equal Access Ini-tiative, established by 2006-07 presi-dent Glenn A. Ballard, Jr., in which law firms and corporations pledge to handle a number of pro bono cases

each year (for a period of five years) based on firm size

80. In 2008, HBA president, Travis Sales, established the HBA’s Veterans Legal Initiative to provide legal counsel and ongoing representation for low-income veterans. Through Friday clinics at the VA Medical Center and other programs, the initiative has served over 4,500 veterans and their families.

81. The HBA established a partnership with Communities in Schools Hous-ton in 2009-10, with the support of HBA President Barrett H. Reasoner. The program places high achieving students from at-risk schools and situations in internships with law firms and other legal offices.

82. The HBA is traditionally among the top three trade and professional or-ganizations in the Houston Business Journal’s Book of Lists each year.

83. The HBA held its 25th Law & the Media Seminar in January 2011. The topic was “Terrorism and the Law.” The planning committee has both an attorney co-chair and a media co-chair.

84. During the 2010-11 bar year, volun-teer attorneys staffing LegalLine an-swered 6,706 calls from the public.

85. During the 2010-11 bar year, the HBA reception desk received 42,478 calls.

86. As of May 2011, the HBA’s member-ship is 33 percent women and 67 percent men.

87. As of May 2011, nine percent of HBA members identify themselves as a minority.

88. The HBA is currently the fifth largest metropolitan bar association in the nation, with 11,500 members.

89. This year, the HBA began a partner-ship with the radio program, “Our Military Heroes,” airing from 5:00-6:00 p.m. on KKHT 100.7 FM and KNTH 1070 AM, bimonthly on the second Sunday, to provide informa-tion on legal issues for veterans, mili-tary personnel and their families.

90. The HBA has 13 full-time staff mem-bers. Departments include Admin-istration, Education, Committees & Events, Communications and Mem-bership.

91. The HBA has 35 standing commit-tees.

92. The HBA has 27 sections, ranging from Antitrust and Trade Regulation to Tax.

93. On both Law Day (May 1) and Con-stitution Day (September 17) of each year, the HBA president, the Harris County administrative judge and the Harris County District Clerk distribute pocket-size copies of the U.S. Constitution to all citizens who report for jury duty in the morning.

94. The HBA has had three women presi-dents: Lynne Liberato (1993-94), Amy Dunn Taylor (2000-01), and Denise Scofield (2011-12).

95. In 2001, the HBA began sending the e-Bulletin to all members via email as a supplement to the monthly Houston Bar Bulletin.

96. The CLE Committee sponsors an average of six programs a month on varying topics of interest to its mem-bers. For more information, visit the HBA’s website.

97. The Attorney Ready Rooms in the Harris County courthouses were furnished by contributions from the Litigation Section, the Criminal Law & Procedure Section, and the Juve-nile Law Section.

98. The HBA has been asked to work with the county to raise funds for permanent display cases on the 6th floor of the restored 1910 Courthouse to feature historical documents and items. The space will be open to the public.

99. In an average month, the HBA office hosts 12-15 committee meetings.

100. In September 2011, the Texas Ac-cess to Justice Foundation awarded a grant to the Houston Bar Associa-tion, the Jefferson County Bar Asso-ciation, and Fort Bend Lawyers Care to enable the creation of a 14-county coalition to serve the legal needs of the nearly 350,000 veterans who live in those counties.

Compiled by Tara Shockley, communications director of the Houston Bar Association, and Keri Brown of Baker Botts L.L.P., associate editor of The Houston Lawyer.


after being covered up by expanding courtrooms beginning in the 1950s, the stunning stained glass rotunda was restored to its former beauty.

Justice restored: Harris County’s

1910 Courthouse

Photos: nash BaKer PhotograPhy

The historic 1910 Courthouse was rededicated on August 23, 2011 and opened to the public on September 6. Originally built

in 1910, the Courthouse is listed on the National Register of Historic Places and is designated as a Texas Historic Landmark. The 21st-century restoration turned back time in many respects, as one of the first tasks in the project was to remove the evidence of the 1950s modernization that hid much of the original design and beauty of the Court-house. Today, the 1910 Courthouse is the home of the First and Fourteenth Courts of Appeals. Over a two-and-a half year restoration period, Nash Baker worked with Vaughn Construction to capture photos of the process.

Profiles of both Nash and our cover photogra-pher, Jim Olive, are provided on page 49. The Houston Lawyer is grateful to Jim and Nash for the use of their photos.


[Top & Bottom] two courtrooms were restored, complete with the mezzanines used to view early trials.

the one-inch tiles were restored in original colors.


a crane sets the finial on top of the 1910 courthouse.

the marble staircase also is a centerpiece of the restoration.

restoring plaster and stone details.

every detail was carefully restored.


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The flexible, change-on-a-dime attitude that is often necessary to survive in our rapidly evolving world threatens to dis-tract us from the reflective disposition that makes excellence in profession-

alism possible. Unlike keeping pace with constant technological change, excellence in professional-ism requires rigid adherence to an unchanging set of values. Thus, our ethical and professional duties call on us to remember—to remember our core val-ues, our common goals, and our individual roles in service to a system far bigger than any individual.

In order to make remembering and adhering to these values easier, three retired chief justices of the Texas Supreme Court created the Texas Center for Legal Ethics in 1989. The Texas Center for Le-gal Ethics seeks to promote the values contained in the Texas Lawyer’s Creed of Professionalism, which memorializes our bedrock principles of excellence

A Profilein pRoFessionAlism

The Honorable JeNNiFeR L. WALkeR eLROdJudge, United States Court of Appeals for the Fifth Circuit

in professionalism. The same values worthy of me-morial in 1989 endure unchanged today, and excel-lence in professionalism requires us to remind our-selves of them continually. To that end, we should remember—and continue to remember—the values presented in the Texas Lawyer’s Creed:

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system... We must al-ways be mindful that the practice of law is a pro-fession. As members of a learned art we pursue a common calling in the spirit of public service... Let us now as a profession each rededicate our-selves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.


committee spotlight

Cicero said that “History is the witness that testifies to the passing of time; it illumines reality, vitalizes memory, pro-vides guidance in daily life

and brings us tidings of antiquity.”1 The HBA’s Historical Committee is dedicated to preserving that testimony.

In 1987, the Houston Bar Association launched the com-mittee to coincide with the Bicenten-nial celebrations of the U.S. Constitu-tion. Harold Metts of Baker Botts, the HBA president that year, wanted to en-sure a formal means of compiling and maintaining the history of the HBA, which was established in 1870 and is now the fifth largest metropolitan bar association in the United States. The legacy of Mr. Metts’ administration has been shepherded and guided through the years by longtime HBA Executive Director Kay Sim and long-time HBA Communications Director Tara Shockley.

COLLECTING ARCHIVAL MATERIALS The initial efforts of the Historical Com-mittee were devoted to working with HBA staff to collect and archive HBA historical material, including minutes, photographs, scrapbooks, documents and early pub-lications of the Houston Bar Bulletin and The Houston Lawyer magazine. Following the HBA’s move into its present offices in First City Tower in 1990, HBA designated a room as the “Archives Room” to ensure organized efforts to store such materials in

one location. The Bar and the committee welcome contributions of potential archi-val material from the membership and the public.

BOOK ON THE HISTORY OF THE BAR These initial efforts were followed by the first major project undertaken by the His-torical Committee — publishing a book

on the HBA’s his-tory. Guided by the committee, the HBA eventually succeed-ed in publishing “A Commitment to Public Service: The History of the Hous-ton Bar Association” in 1992. This book, which was sold both

through the HBA and through local book-stores, was the result of a collaborative ef-fort between the Bar and Eric Fredrickson, who was then a post-graduate student at the University of Houston’s Institute for Public History (and a future lawyer). Mr. Fredrickson undertook the task of comb-ing HBA archives, as well as the archives of the City of Houston, the State Bar of Tex-as, the Houston Public Library and local newspapers. He also interviewed numer-ous past presidents and other bar leaders about the association.

LIVING HISTORY SERIES The committee also inaugurated a living history series by having its members video-tape interviews with senior members of the Houston legal community. Work on the “living history of the Bar” has been ongo-ing since that time, and the result of this ef-fort has been to preserve perspectives and

anecdotes on the history of life, and the practice of law, in Houston. To date, more than 80 such interviews have been con-ducted, many with assistance from Vinson & Elkins LLP, which makes its Media Ser-vices Department available for videotaping the interviews.

However, many more such interviews remain to be done. The committee invites anyone who is interested to volunteer to conduct such an interview, or to recom-mend a person for interview. Those inter-ested in volunteering should contact Tara Shockley at the HBA’s office (713-759-1133) or by e-mail ([email protected]) for more details.

PRESERVING ARCHIVAL MATERIALS In the mid-1990s, the committee was in-strumental in recruiting law librarians Elizabeth Black Berry and Chris Anglim to assist it in ordering archival materials to be-gin the process of preserving HBA records, a daunting task given the fragile condition and age of many such materials. In 2007, the HBA Board approved the Historical Committee’s preservation plan to digitize HBA archives and make them more acces-sible. Committee member Grady Cayce enlisted the help of LIT Group, now Gulf-stream, who agreed to perform the digi-tizing of documents on a pro bono basis. Gulfstream worked with HBA staff to scan and digitize Houston Bar Bulletins, start-ing with the earliest ones from the 1940s through the 1990s.2 As indicated in the endnotes, this project also welcomes inter-ested volunteers.

HARRIS COUNTY HISTORICAL RECORDS PRESERVATIONThe committee has also provided assis-

The HBA Historical CommitteeBy lionel m. schooler

lionel m. schooler (left) prepares to interview steve susman for the living history series.


tance to the Harris County Clerk’s office in the development of the Harris County Historical Records Preservation Project, which continues to restore and preserve thousands of historical case files, work-ing through the Houston Bar Foundation (HBF) to raise funds for the project. Spear-headed by Judge Mark Davidson, the bar has solicited donations from individuals and companies to preserve specific vol-umes of the District Clerk’s case files. The committee and the HBF have also pro-vided assistance to the District Clerk’s Of-fice in developing strategies for cataloging and enhancing access to preserved records. This project has helped many old and for-gotten cases to come to life for new genera-tions of readers.3

ARTICLES OF HISTORICAL INTEREST The committee also suggests and prepares historical articles on lawyers and related topics for The Houston Lawyer. In 2008,

the committee assisted The Houston Law-yer editorial board in publishing an award-winning legal history issue. The issue in which the instant article appears is yet an-other issue of The Houston Lawyer devot-ed to the Bar’s legal history, a priority de-clared by Denise Scofield, HBA President for 2011-12, for her administration. The Houston Lawyer has maintained a long-time commitment to publishing articles of historical interest, such as its 2002 article about the commemoration of the 100th anniversary of the United States District Court for the Southern District of Texas.4

HISTORICAL DISPLAYS ABOUT THE BAR The committee’s most recent project is be-ing undertaken in conjunction with the opening of the newly-restored 1910 Court-house at 301 Fannin. The courthouse houses all justices of the two Courts of Appeals sitting in Houston (the First and Fourteenth) and their staffs and court-

rooms. It was rededicated on August 23 and was officially opened on September 6, 2011.

Through a joint collaboration among the Bar, the committee, the Houston Bar Foundation, the County, the Courts of Ap-peals, and the Texas State Historical Com-mission, the HBA has received approval to have dedicated for Bar use a display area on the west side of the sixth (top) floor of the 1910 Courthouse, immediately adjacent to the rotunda. The Historical Committee is working with the HBA and the Houston legal community to develop historical dis-plays that will be domiciled in special dis-play cases within this dedicated area. The committee is also assisting the Houston Bar Foundation to raise the funds needed for the purchase of the furniture and dis-play cases that will be situated in this area. CONCLUSIONThe Historical Committee will continue its efforts to capture the “testimony” of Houston’s legal history. “The HBA Histori-cal Committee has been an integral part of preserving and documenting the history of the HBA and the Houston legal commu-nity for many years,” said Denise Scofield, HBA president. “I encourage any member who is interested in our history to get in-volved with these efforts.”

Lionel M. Schooler, an equity partner in the Houston office of Jackson Walker L.L.P., serves with Justice Jane Bland and Todd Frankfort as 2011-2012 co-chair of the Houston Bar Association’s Historical Committee.

endnotes1. Cicero, Pro Publio Sistio.2. This project was halted after the Houston Bar

Bulletins from the 1940s to 1992 were digitized, and therefore the committee requires assistance to complete this project. The committee also currently needs assistance in converting to DVD interviews originally recorded on VHS videotape.

3. Those interested in supporting this very worthwhile project can obtain more information about it from Tara Shockley at [email protected].

4. Wynne, Michael, The Houston Lawyer, Vol. 39 No. 5, March-April 2002 at 40.

committee spotlight

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Lone Star Law: A Legal History of Texas By michael ariens

texas tech university Press, 2011

284 pages, notes and index reviewed by James W. Paulsen

Professor Michael Ariens’ new book, Lone Star Law, is with-out doubt the best legal history of Texas in print. Actually, it is the first and only book-length

legal history of the state—ever. Lone Star Law covers a lot of ground in less than 300 pages. It also is a surprisingly good read.

Michael Ariens teaches law at the St. Mary’s Law School in San Antonio, special-izing in constitutional law, the legal profes-sion, and legal history. The publisher’s squib says Professor Ariens has been working on this book for five years, and the finished product looks like it.

The structure of Lone Star Law generally is well thought out. The book begins by set-ting out some significant features in the de-velopment of Texas law in rough chronolog-ical order, beginning in 1718 (when Texas became a province of Spain), ending in 1920 (women’s right to vote and race riots), and divided into two chapters at the end of the Civil War.

The chronological ending point seems a little arbitrary. A lot has happened to Texas law since the end of World War I. Fortu-nately, Ariens goes a long way toward fill-ing the gap in the remaining six chapters. These are organized by subject matter: civil (including procedure and tort law), crimi-nal (including civil rights), family, property (including oil and water rights), and corpo-rate (including railroad law). Here, Profes-sor Ariens sometimes brings the discussion right up to the present day. For example, his

discussion of legal education includes the formation of Texas Wesleyan Law School and the U.S. News rankings. Coverage of judicial politics goes past the swing from a plaintiff to defense-oriented Supreme Court in the early 1990s, and even touches on the 2008 Harris County judicial races.

Stylistically, Ariens has targeted “the in-terested lay reader.” He promises to “avoid legal jargon as much as possible and ex-plain legal concepts as simply as possible.” Though there are occasional lapses (perhaps inevitable when a law professor tries to write as a non-lawyer), Ariens for the most part follows through on his promise. But lawyers should not be put off by the claim the book is written for the general public. Many of us have tried to avoid thinking about corpora-tions, or real estate law, or civil or criminal litigation, ever since the day we got our Bar results. Ariens has a lot to say about all these subjects, and his efforts to simplify should also be appreciated by legal non-specialists — like this reader.

Substantively, Ariens sets some lofty goals: to examine the interplay between Texas law and culture, to explore how Texas “excep-tionalism” has influenced law (“exception-alism” being every true Texan’s knowledge that Texas is far better — except, perhaps, in summer temperature — than anywhere else), to demonstrate the influence of the “hustler” mentality, and to avoid mytholo-gizing Texas law. That’s a lot for any one book to take on.

It’s not altogether clear Professor Ariens accomplishes that goal. To this reader, that’s a good thing. Lone Star Law certainly has a lot to say about culture and exceptional-ism and hustlers and such, mostly through presentation of specific examples. However, neither the average lay reader nor the aver-age lawyer is much interested in these con-ceptual questions. A simple sketch of the basic history of Texas law, and a straight-forward explanation of how some of our strange doctrines and customs came into being, would be more than enough. Here, Ariens succeeds brilliantly.

Lone Star Law is a cross between a series of linked essays and an encyclopedia. It is easy to read and answers many “why did we do this?” questions about Texas law and le-gal practice. The explanations are not always complete, but the endnotes point interested readers toward more in-depth sources. Lone Star Law is a good quick-answer guide to a wide variety of questions, and a great start-ing point for in-depth research.

Lone Star Law is chock-full of fascinating information. For instance, take the chapter on criminal law. Many lawyers know Texas criminal pleading once was hyper-technical. Lone Star Law gives specific examples of the fine distinctions drawn by the old Court of Appeals when considering misspelled words in jury verdicts. “Gilty,” “guily” and “guilly” were considered trivial misspellings, but “guity” was a fatal defect.

The book’s greatest failing, at least to this reader, is a natural consequence of deliber-ate decisions made by the author and editors. Professor Ariens cut the original manuscript down by about one third before publication. He announces up front that some interesting questions are covered only briefly, or not at all. He especially tries to avoid mythology, or “tall tales.” However, the book does what it does so well that a knowledgeable reader is frustrated by the gaps — by how much more interesting the book could be if it was longer.

Neither the author nor the Texas Tech University Press need fear that a longer book will frighten potential readers away. Each chapter of Lone Star Law is broken up into a succession of vignettes or particular historical episodes. A client waiting in a law firm lobby, or a lawyer with a fifty-minute flight from Houston to Dallas, can read a section or two and feel they have learned something interesting. A few more sections here and there would be welcome. If Lone Star Law sells well, as it should, perhaps the author would consider an expanded second edition.

Professor James W. Paulsen teaches at the South Texas College of Law.

mediA Reviews


Daughters of the River Huong By uyen nicole duong

amazonencore, 2011 reviewed by Joy e. sanders

Mi mi mi mi. The word sym-bolizes a Vietnamese prin-cess from the Hung era, a time of peace and harmony predating border wars and

long periods of conflict in Vietnam. Simone Mi Uyen, the fourth generation “daughter” of the River Huong and modern voice of the novel, describes the sound mi as a pure, vi-brating sound that is formed when the lips are gently opened upon a breath, the air brushing slightly outward, delivering the sound with the softness of a caress. Such is the voice of Daughters of the River Huong.

Simone’s first generation counterpart, Huyen Phi, is an impoverished and or-phaned paddle girl who describes 19th cen-tury life as she carries passengers across the River Huong, or “Perfume River.” Perhaps fortuitously or perhaps not, she is chosen to become a royal concubine of the then king. Not unlike a body of water, the story un-folds coarsely shifting through time, subtly and delicately revealing the most intimate, at times scathing revelations, creating sus-pense and leaving the reader to weave to-gether the chronology.

The novel is a fictional account of four generations of Vietnamese women with a historic context, interlacing history from Uyen Nicole Duong’s own past, and taking readers on a century-long journey examin-ing Vietnam from the monarchy through French Colonialism, American interven-tion, the fall of Saigon and Communist rule. Much of the value of the story is its portrayal of Vietnam as far distinguishable from what

is evoked in the minds of many Americans – that is to say, what is typically covered in documentaries and history textbooks.

As beautiful as it is dark, Duong’s artist-ry speaks to the beauty and resilience of a people who have struggled with conflict and identity for generations. This inner-contro-versy is embedded in the human condition both naturally and by way of experience. For the characters here, this struggle is two-fold. Despite their clearly independent spir-its, traditional, patriarchal notions tamper these women’s sovereignty. In some cases, these notions are taken up in a tragic way, as a means of survival. In others, they are aptly described as being imprisoned by one’s own heart. But in both cases, provocatively so, it engages the reader in an exploration and examination of one’s own notions. So climb aboard Huyen Phi’s paddle boat and allow Uyen Nicole Duong to take you on a journey down the River Huong.

About the author: At 16, Author Uyen Ni-cole Duong won the Republic of Vietnam’s National Honor Prize for Literature. She ar-rived in the U.S. as a political refugee at the age of 16, only five days before the fall of Sai-gon. She went on to receive a B.S. in Com-munication and Journalism from Southern Illinois University, a J.D. from the University of Houston and an LL.M. from Harvard. At age 24, she became the first Asian Ameri-can woman appointed by the Houston In-dependent School District to an executive position and served while attending law school at night. For almost two decades, she practiced with a number of prestigious law firms, a multi-national corporation and the U.S. government. She was also the first Vietnamese American appointed as a judge in the U.S. Duong currently resides in Hous-ton.

Joy Sanders of Joy E. Sanders, Esq. practices immigration law and is a member of The Houston Lawyer editorial board. She tweets about law, sustainability and community at http://twitter.com/sandersjoy.

mediA Reviews

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By farrah martinez

On any given weekend you can find Eric Lipper flying a plane, sailing the sea, cruising around in his sports car, or building woodwork. Since the age of 12, Lipper has had a knack with tools, and he recalls even then how he would disassemble and reassemble anything and ev-

erything within his grasp. Before a career in law, Eric

worked as an RV and car me-chanic through his teenage years. It was not until Eric put one of his fingers through a saw blade that he decided he needed a desk job. So, off to college he went. While he truly enjoyed repairing ve-hicles and restoring old Ford mustangs, considering his fa-ther and both of his grandfa-thers were Houston lawyers, it was no surprise that he was also drawn to the practice of law. Nevertheless, Eric never imagined he would still be practicing law after more than 23 years at the same firm—Hirsch & Westheimer—but he professes that the time has flown by because he is pas-sionate about his work and has fun doing his job. It also helps that Eric has mastered the skill of recharging his en-thusiasm for the law by relaxing and enjoying his time off through one of his many hobbies.

Today Lipper still enjoys vehicles and is a member of the Ferrari Club of Houston. He owns a black Ferrari that he is constantly taking apart and then using in various amateur warrior weekend challenges. In addition to driving fast cars, Eric likes to fly high in his own air-

plane. He is a licensed pilot with over 20 years of experience and delights in loading the plane with his son Joe and various friends for a dining experience in a different city or an adventurous sightseeing expedition. There is no limit to Eric’s means of transportation be-cause he also owns a 47-foot sailboat named “Docket” that he enjoys sailing along the Gulf Coast.

Eric is not all fun and no work. On occasion, Lip-per flies himself from court-house to courthouse across the state and sometimes even the country for various legal proceedings. A great benefit of owning and operating his own plane is that if Eric has a hearing in Austin in the morning and a deposition scheduled in Dallas later in the afternoon, he can fly him-self. That is pretty cool!

Not only is Eric adventur-ous, he is also generous and a skilled and talented crafts-man. For his latest project, Eric built a portable wooden Torah arc that he and Rhonda,

his wife of 18 years, donated to their local synagogue, Congregation Emanu El. During special holiday ser-vices, when the synagogue must hold some of its services at remote venues to accommodate the mass number of attendees, the arc is transported to that venue to house one of the synagogue’s Torahs. Eric delights in being able to use his craftsmanship to give back to his temple. As lawyers, we can all take a page

out of Eric’s book—enjoy life.

Farrah Martinez is a member of Editorial Board. Martinez is Director of Legislative Affairs for the Harris County District Clerk.

oFF the RecoRd

Planes, Boats and Automobiles:

Land, Sea and Air Claim Eric Lipper’s Free Time

[Top] eric and family members with the results of a fishing expedition on his boat, “docket.” [Bottom] eric lipper sometimes flies himself from courthouse to courthouse for legal proceedings.


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The U.S. Supreme Court Holds That Employment Discrimination ClaimsBy 1.5 Million Women Cannot Proceed As One ClassBy Jill yaziJi

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451 (June 20, 2011), the U.S. Supreme Court denied class status to approximately 1.5 million women, current and former Wal-Mart employ-

ees, alleging sex-based employment dis-crimination in all 3,400 Wal-Mart stores nationwide. In a 5-4 decision, the Su-preme Court held the plaintiffs failed to demonstrate enough commonality among them to meet the threshold requirement of Federal Rule of Civil Procedure 23(a)(2) for class action.1

The plaintiffs in Wal-Mart did not con-tend that the company had an express policy of discrimination, nor company-wide policies and practices that resulted in a disparate impact on women, such as a mandatory testing procedure. They claimed, rather, that sexual stereotypes

and subjective criteria embedded in Wal-Mart’s corporate culture regularly determined pay and promotion deci-sions, resulting in a significant disparity between the number of men and women promoted to managerial positions. The “broad discretion” that Wal-Mart vested in its supervisors, plaintiffs complained, was practiced disproportionately in favor of men and had a disparate impact on fe-male employees in the form of lower pay and fewer promotions. In the absence of a “common contention” of discrimination or a “single employment practice,” the va-lidity of plaintiffs’ case rested entirely on the strength of evidence offered to prove Wal-Mart’s discriminatory culture. That evidence, the Court’s majority held, fell far short of what is required to glue to-gether an expansive class action.

The evidence of Wal-Mart’s corporate culture of bias was statistical, anecdotal, and in the form of expert testimony. The Wal-Mart workplace, plaintiffs’ sociolo-gist and only expert testified had a “strong corporate culture” that made it “vulner-able” to “gender bias.” The expert’s tes-timony was quickly disregarded by the Court after he admitted in deposition that he could not tell “whether 0.5 percent or 95 percent of the employment deci-sions at Wal-Mart might be determined by stereotyped thinking.” This was a cru-cial question in a case alleging that every woman employee suffered from gender stereotypes. “If [plaintiff’s expert] admit-tedly has no answer to that question” Jus-tice Scalia wrote, “we can safely disregard what he has to say.”

The majority likewise questioned the statistical and anecdotal evidence offered by plaintiffs. Statistical evidence com-pared the number of women versus men promoted into managerial positions, con-cluding that “there are statistically signifi-cant disparities between men and women at Wal-Mart.” The data underlying this conclusion were regional, not store-by-store. Hence, the Court concluded that

the statistical evidence did not prove a nationwide policy of discrimination in all 3,400 stores, because figures from a par-ticular store or cluster of stores may have skewed the overall data.

The anecdotal evidence presented in plaintiffs’ affidavits was deemed equal-ly insufficient. For instance, the Court noted that there were 120 affidavits filed on behalf of almost 1.5 million women, representing one anecdote of discrimina-tion for every 12,500 class members. In-deed, the affidavits complained of only 234 stores of the 3,400 stores included in the litigation, leaving all the other stores without any evidence of discrimination in the eyes of the Court’s majority.

What doomed the Wal-Mart plaintiffs was the expansive breadth of the class contrasted with the narrow sampling of evidence presented. In a sentence that captured the majority’s sentiment vis-à-vis class actions of this size, Justice Scalia ex-claimed that “in a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would ex-ercise their discretion in a common way without some common direction.”

Yet, the majority’s commonality test was seen by the dissent as too exacting in an otherwise threshold inquiry of Rule 23(a)(2). “[E]ven a single question of law or fact common to the members of the class will satisfy the communality require-ment,” wrote Justice Ginsburg in her dissent. Plaintiffs’ evidence, she wrote, suggested that “gender bias suffused Wal-Mart’s corporate culture,” where super-visors often referred to female associates as “little Janie Qs” or uttered statements such as “[m]en are here to make a career and women aren’t.” Discrimination can often be an unconscious practice, even in the absence of intentional decisions by each supervisor to discriminate.

Yet, Wal-Mart should not be read to spell the end of employment discrimination class action, even those based entirely on evidence of discretionary policies. Justice

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Scalia wrote the Court recognizes discre-tionary decisions can be the basis of Title VII claims. But there must be a “common contention” among class members, that discrimination, for instance, was prac-ticed by the same manager, or that there was a single policy in place. “Without some glue holding the alleged reasons for all these employment decisions together,” there is no common answer to the “cru-cial question why was I disfavored.” (Em-phasis in original.)

After Wal-Mart, plaintiffs have to sue in smaller, more defined classes, and of-fer rigorous statistical and anecdotal evi-dence down to the very specific employ-ment location about which a Title VII claimant complains.

Jill Yaziji is the principal of Yaziji Law Firm, specializing in business litigation, and a member of the Editorial Board of The Houston Lawyer.

endnote1. The less remarkable holding of Wal-Mart

was the Court’s unanimous decision that Federal Rule 23(b)(2) should not be used for monetary damages (in this case “back pay”) claims. The Rule is adequate only when a “single injunction or declaratory judgment” provides relief to each class member. “Individualized monetary claims belong to Rule 23(b)(3),” with its procedural protections and opt out provisions.

Paid or Incurred, Post- Haygood v. EscabedoBy roBert W. Painter

In a major 7-2 opinion, Haygood v. Escabedo, 2011 WL 2601363 (Tex., July 1, 2011), the Texas Supreme

Court interpreted the “paid or incurred” statute enacted in the tort reform legislation of 2003.

At issue is the meaning of Texas Civil Practice & Remedies Code Section 41.0105, which states that, “recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred

by or on behalf of the claimant.”As soon as Section 41.0105 became law,

there was a vigorous grammatical debate over whether the adjective “actually” only modified “paid” or whether it modified both “paid” and “incurred.” The difference has significant implications.

Indeed, as a result of this ambiguity, pre-Haygood, many plaintiffs argued that they should be permitted to put on evidence of the full amount of all medical or health care expenses that had been incurred, regardless of whether they had been paid or adjusted in any way. Under that scenario, should the plaintiff prevail any necessary reduction of the awarded

medical expenses would occur post-verdict. In turn, many defendants urged trial courts to exclude any evidence of medical or health care expenses that had not actually been paid.

The Haygood decision weighed in, settling the linguistic issue by deciding that “actually” modifies both “paid” and ‘incurred.” Further,

the court held that only evidence of paid medical expenses and medical

“In a major 7-2 opinion,

Haygood v. Escabedo,

2011 WL 2601363

(Tex., July 1, 2011), the

Texas Supreme Court

interpreted the ‘paid

or incurred’ statute

enacted in the tort

reform legislation

of 2003.”


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expenses that have been incurred and are recoverable by the health care provider are admissible at trial.

“Recoverable medical expenses” are those that the health care provider has the right to collect. The court noted that the medical industry has a common practice where providers negotiate pricing with insurance companies, which results in the bills for insured patients being contractually adjusted downward. The court rejected Haygood’s argument that these adjustments are covered by the collateral source rule, and instead determined that they are only for the benefit of the insurance company (not the patient/insured). In the majority opinion, the court said that to do otherwise would create a windfall for plaintiffs.

Haygood alternatively urged the court to allow the jury to consider evidence of non-recoverable economic damages (e.g., pre-adjusted medical bills) because they could be useful for the jury in deciding the amount of non-economic damages. The court decided against that argument, ruling that any potential relevance of such evidence is outweighed by the confusion it would likely generate for the jury.

The impact of Haygood, in short, is that any evidence of pre-adjusted medical billing records is inadmissible. More broadly, if a health care provider does not have the legal right to collect a charge for health or medical services, then evidence of that charge is inadmissible.

Trial lawyers on both sides of the docket are wrestling with how Haygood will change day to day practice, including things as routine as affidavits to prove up reasonable and necessary medical expenses under Civil Practice & Remedies Code Section 18.001. In the meantime, the debate is still not over—a motion for rehearing has already been granted.

Robert W. Painter is a trial attorney with Painter Law Firm PLLC. He is an associate editor of The Houston Lawyer.

Texas Passes Law Requiring Disclosure of Chemicals Used in Hydraulic Fracturing FluidBy Barclay nicholson

In June of this year, Texas Governor Rick Perry signed a law requiring hy-draulic fracturing operators to disclose the chemical constituents of fluids used in the fracturing process on a well-

by-well basis. In doing so, Texas became the first state to have such a full disclo-sure law, although many other states have regulations regarding hydraulic fractur-ing. Many of these state regulations have differing provisions and require disclosure in slightly differing manners. The Texas law instructs the Railroad Commission, which regulates oil and gas production, to draft hydraulic fracturing disclosure regulations. The bill passed by a majority of 137-8 in the Texas House and 31-0 in the Texas Senate.

The law imposes different disclosure re-quirements for the total volume of water and the varying categories of chemicals used in the hydraulic fracturing process. For fracturing chemicals that are subject to the Occupational Safety and Health Administration’s requirements for Mate-rial Safety Data Sheets (“MSDS”), the well operator must disclose those chemicals to the Railroad Commission and post a list of the chemicals on the website hosted by the Interstate Oil and Gas Commission, which is currently found at FracFocus.

org. The Texas bill makes public this in-formation about OSHA-regulated chemi-cals that, by law, was already available to well-operator employees. Service compa-nies that perform hydraulic fracturing on a well or suppliers of additives used in hy-draulic fracturing must provide the neces-sary chemical information to the well op-erator in order for the operator to comply with the disclosure requirements.

If a chemical is not required to be dis-closed on an MSDS, but was nevertheless intentionally included in the fracturing fluid to assist with the fracturing process, the chemical also must be disclosed to the Railroad Commission and noted on Frac-Focus.org or another publicly accessible website. Chemical constituents that were not purposely added, but occur only inci-dentally or are otherwise unintentionally included in the fracturing fluid, are not required to be disclosed.

In an effort to protect trade secrets, the law does not mandate disclosure of the ac-tual quantities of the chemicals used or the techniques utilized by well operators to implement the fracturing process. Rather, the bill only requires disclosure of specific chemical-identifying information, such as names and physical characteristics. The non-disclosure of trade secrets can be challenged by the landowner where the well is located, an adjacent landowner, or a state agency within two years of the fil-ing of the relevant well completion report.

The law would only affect wells that receive drilling permits after the effective date of the Railroad Commission’s forth-coming regulations which will be at the earliest in 2012. Many companies in the industry supported this state law as a step in the right direction in being more trans-parent about the hydraulic fracturing pro-cess and reassuring the public regarding their drilling activities.

Barclay Nicholson is a partner at Fulbright & Jaworski L.L.P., where he focuses his prac-tice on business disputes.


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industry, including the securi-tization process of commercial loans and the duties and re-sponsibilities of Mortgage loan Originators/Depositors, un-derwriters of REMIC Trusts, Rating Agencies, Trustees, Ser-vicers and Special Servicers. looking for in-house position.

5084 Full time associate po-sition available. 5+ years ex-perience required. Must have commercial and personal in-jury background. Competitive compensation package.

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.

2062 very Experienced Trial Attorney intimately familiar with the mechanics and opera-tion of the Commercial Mort-gage Backed Securities (CMBS)

positions wanted

If you need information about the

Lawyer Placement Service, please contact hBa,

placement coordinator, at the HBA

office:

713-759-1133

May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. Issue

If you need information about the Lawyer Place-ment Service, please contact hBa, placement coordinator, at the HBA office, 713-759-1133.

5076 Boutique Civil litiga-tion law firm specializing in complex business litigation is looking for an associate attor-ney with 1-3 years litigation experience and excellent re-search and writing skills.

5080 Houston public pen-sion fund seeking Associate Counsel reporting to ClO. Approx. 4 yrs. experience with pensions, employment, administrative, institutional investing or local government law. Competitive benefit package. Background checks required.

Placement PolicyThe Houston Bar Association Lawyer Placement Service will assist members by coordinating place-ment between attorneys and law firms. The service is available to HBA members and provides a con-venient process for locating or filling positions.

1. In order to place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered 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 under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. 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 in-formation to be released to the firm. This pro-cess 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 of the Houston Lawyer Placement Service. Please notify the Placement coordinator of any Position found or filled.4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 first city tower, 1001 fannin street, houston, texas 77002 or e-mail Brooke Eshleman at [email protected]. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.

Placement deadlines Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue

positions Available


Office Space at 3 Riverway Class “A” Building located off Wood-way Drive and 610 West Loop. Law firm is primary tenant. Several offices available. On-site management and security guard, attached parking garage for tenants and visitors, confer-ence rooms, receptionist ser-vices, kitchen, wired for broad-band internet access. Contact

Lisa DeWild, 713-209-2934

HOUSTON /MUSEUM DISTRICT

Newly remodeled Historic Home, minutes from the Court House. On-site Management, receptionist, three conference rooms, kitchen, small library, telephone system, internet ac-cess, copier, fax and free park-ing. Several offices available.

Call 713-840-1840

ExECuTIvE OFFICE SpACE AvAIlABlE:

Ranging from $850-$995 per month. Amenities include: 2 conference rooms; maid and reception services; full kitch-en. Heights Boulevard address. Broker/owner. 713-880-4700

Sublease beautiful office space 1402 sq ft—550 Westcott.

Call Leigh 713-224-6774

Former art gallery on Colquitt Street (near Richmond and Kirby) converted to law of-fices has two furnished offices (one partner size) and three furnished secretarial stations available. Numerous ame-nities, including conference rooms, full kitchen, use of copier and postage machine, and up to three lines and voice mail on existing phone system. 12 to 28 foot ceilings. Non-smokers only. Call MaeLissa Lipman at 713-840-9600. Galleria area office with great

views — two offices available for lease. Top floor of Chase Bank building at Richmond and Sage. Approximately 200 — 225 square feet. Well-ap-pointed suite includes confer-ence room, fax, copier, lim-ited library, wet bar and free parking. Reception/secretary service available. $925.00 - $975.00 per month. Dorena

713-961-5555.

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Window offices for sublease in fully furnished suite. In-cludes lobby area, two con-ference rooms, kitchen, pri-vate bathroom, phone sys-tem, internet access, copier, fax, scanner and free parking. $850.00 per month. Contact

Stephanie 713-337-6449. [email protected]

HISTORIC FORMER MAYOR’S HOuSE On HEIgHTS BlvD. New renovation! Historic charm with modern ame-nities. Total 7 offices plus support staff areas avail-able. Includes 2 conference rooms with flat screens and data ports, maid service, full kitchen, parking, dis-abled access. Also available: reception, wired and wire-less internet, data storage /server, copier, phone and fax services. Price flexible on needs. Call: 832-498-5698.

Houston/Bellaire. Sublease one/two window offices in 6300 W. Loop South w/3 attorneys — easy access, free parking, con-

ference room and Internet. Call Alyssa 713-524-4110.

Great office space at 1601 Wes-theimer at Mandell, minutes from downtown Houston. Rent includes shared access to two conference rooms, restrooms,

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For classifieds contact:

mary [email protected] 281.955.2449 ext.13

kitchens, internet, cable, phones with VM, all utilities, part-time receptionist. Window offices ranging from $400-$800 per month with no long-term com-mitment. Please call Mark Kidd at 713-968-4601 for information.

gREEnWAY plAZA One first floor office space available, 12X17. Tenant shares suite with 6 attorneys, standard amenities included. Please call

Trina at 713-627-1133

Partner-level attorney needed to expand small Corporate/Securities firm. Seeking part-ner to complement our prac-tice. Send resume and cover letter to [email protected].

Thirty-year business attorney looking to sublease one office in downtown Houston. Board Certified, Commercial Real Es-tate and Solicitor of England and Wales (Uncertificated). Broad experience in restructur-ing of businesses and real estate projects outside of bankruptcy, including recapitalization and investor restructurings. Please contact Paul Duplechain at

713-228-4600.

Tickets, DWI, Hit & Run, Sus-pended License and Driver License Issues, including DPS hearings. *Traffic Warrants Removed. *Personal injury & accidents. Eutsler Law Firm.

Tel. 713-464-6461

Robert Kahn, board certified immigration law, practicing for 28 years. Specializing in removal, deportation, bond hearings, VAWA, asylum and

adjustment. 713-961-9977www.robertekahn.net

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About the Photographers

Nash Baker“The building has soul,” explains photographer Nash Baker when asked to describe the cultural, historic and ar-tistic allure of the 1910 Harris County courthouse. Baker, of Nash Baker Photography, is a long-time Houston-based commercial photographer. Inspired as a child by the rivet-ing images he saw in National Geographic magazine, he has gone on to pursue a 30-year career portraying people and their pursuits, as well as architecture, landscapes and the life of the city and its residents. Much of Baker’s work is commissioned by corporations and exhibited in marketing and editorial pieces, as well as private collections.

In 2009, Vaughn Construction began renovation of the 1910 Harris County court-house. Vaughn commissioned artisans who could restore the style and character of the 1910 courthouse by using material and tools typical of that era and authentic to the original building. Vaughn also commissioned Baker to take documentary photographs of the renovations as they were being performed.

“For many people, the only way they will experience the Courthouse is through my photos. So my job is to convey not just an accurate architectural portrait, but the ‘soul’ of the building as well. The way the light falls at a particular time of day. The richness of the wood. The shadows. And so much more. It’s all part of experiencing the building,” explains Baker.

For the next two and half years, Baker studied restoration techniques, collaborated with contractors, and photographed in meticulous detail the restoration process. His work framed two major themes: (1) the building’s artistry—the plaster and stonework itself; and (2) the high level of craftsmanship employed by the contractors.

Baker’s photographs tell the story of the truth and spirit of the courthouse, detailing the historical, cultural and artistic essence of the early 1900s. The images are a tribute to the civic pride Houstonians past and present have invested in the courthouse and the efforts to return this magnificent structure to its 1910 condition.

For more of Baker’s photographs, visit: http://www.nashbaker.com.

Jim OliveJim Olive is a native Houstonian whose work has been featured in publications and corporate board-rooms throughout the world. His interest in pho-tography started early, and he began processing his own film as a boy. His love of photography never wavered. Olive previously worked for The Houston Post, and has been on assignment for various pub-lications, media outlets, and corporations. He is the creator of Stockyard Photos, a stock and assignment photography company providing exceptional quality images in both digital and print media. While Olive may be best known for his Houston skyline and environmental photos, his experience and interests are long and varied. He routinely takes photos for the Greater Houston Partnership, Greater Houston Convention & Visitors Bureau, Texas Medical Center, and various business and nonprofit interests. Olive has recently been on assignment to update the photo catalog of the Texas Medical Center and to photograph the Texas wildfires. In addition to being an award-winning photographer, he is an accomplished author.

Taking the cover photo of the renovated 1910 Courthouse, now home to the First and Fourteenth Courts of Appeals, presented some obstacles. First, Olive had to get to the roof of The Republic Building. Second, he had to battle the extreme summer heat. The first obstacle allowed him to catch up with his friend Dick DeGuerin, whose firm is on the top floor of The Repub-lic Building. Olive and DeGuerin first met when Olive was on assignment many years ago for Life Magazine to cover a story of Percy Foreman. As for the heat, he had to grin and bear it.

To see more pictures of the Harris County Courthouse, please go to www.harriscountycourthousephotos.com. Jim has suggested to the Harris County Historical Commission that a calendar of the courthouse photos be published to raise money for the Commission’s ongoing efforts to preserve Houston’s history. To see more of Jim Olive’s work, visit www.stockyard.com.

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Documents

THL_SeptOct_2011