the 2015 Legal Resource Guide for News Reporters

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the 2015 Legal Resource Guide for News Reporters
TABLE OF CONTENTS
Contents
The Courts ______________________________________________________________________________________________ 1
Tips to Understanding the Law __________________________________________________________________ 11
Access to the Courtroom __________________________________________________________________________ 12
Alternative Dispute Resolution___________________________________________________________________ 15
Appellate Law and Practice _______________________________________________________________________ 18
Construction Law ____________________________________________________________________________________ 21
Corporations and Governance ___________________________________________________________________ 23
Defamation: Libel and Slander __________________________________________________________________ 26
Eminent Domain _____________________________________________________________________________________ 31
Environmental Law __________________________________________________________________________________ 34
Family Law ____________________________________________________________________________________________ 37
The Freedom of Information Act ________________________________________________________________ 40
Gag Orders ____________________________________________________________________________________________ 44
Health Law ____________________________________________________________________________________________ 46
Immigration Law_____________________________________________________________________________________ 48
Legal Issues in Newsgathering __________________________________________________________________ 51
Probate Law ___________________________________________________________________________________________ 55
Reporter’s Privilege _________________________________________________________________________________ 58
Rule 76a________________________________________________________________________________________________ 60
Tax Law _________________________________________________________________________________________________ 63
Texas Public Information Act _____________________________________________________________________ 66
Tort & Insurance Practice _________________________________________________________________________ 72
A Civil Action Described ___________________________________________________________________________ 74
Roles of the Court ___________________________________________________________________________________ 82
A Criminal Case Described ________________________________________________________________________ 85
Criminal Disposition Codes _______________________________________________________________________ 87
TABLE OF CONTENTS
Frequently Asked Questions ______________________________________________________________________ 90
Texas Disciplinary Rules of Professional Conduct __________________________________________ 92
Legal Definitions _____________________________________________________________________________________ 97
THE COURTS
The Courts
U.S. District Courts – Northern District of Texas
Dallas Division
Earle Cabell Federal Building
1100 Commerce Street, Dallas, Texas 75242
Phone (214) 753-2200
www.txnd.uscourts.gov/judges/index.html
Hon. Sidney A. Fitzwater, Chief Judge
Room 1528 -- Earle Cabell Federal Building
(214) 753-2333
Hon. Jorge A. Solis
Room 1654 -- Earle Cabell Federal Building
(214) 753-2342
Hon. Sam A. Lindsay
Room 1544 -- Earle Cabell Federal Building
(214) 753-2365
Hon. Barbara M.G. Lynn
Room 1572 -- Earle Cabell Federal Building
(214) 753-2420
Hon. David Godbey
Room 1505 -- Earle Cabell Federal Building
(214) 753-2700
Hon. Ed Kinkeade
Room 1625 -- Earle Cabell Federal Building
(214) 753-2720
Hon. Jane Boyle
Room 1376 -- Earle Cabell Federal Building
(214) 753-2740
Hon. A. Joe Fish, Senior Judge
Room 1404 -- Earle Cabell Federal Building
(214) 753-2310
Hon. Robert B. Maloney, Senior Judge
(214) 753-2201
Page 1
THE COURTS
U.S. Bankruptcy Courts
Earle Cabell Federal Building
1100 Commerce Street, Dallas, Texas 75242
Phone (214) 753-2000
www.txnb.uscourts.gov/judges-info
Hon. Barbara J. Houser, Chief Bankruptcy Judge
Room 1421 -- Earle Cabell Federal Building
(214) 753-2055
Hon. Harlin D. Hale
Room 1421 -- Earle Cabell Federal Building
(214) 753-2016
Hon. Stacey G.C. Jernigan
Room 1420 -- Earle Cabell Federal Building
(214) 753-2040
U.S. Magistrate/Judges – Northern District of Texas
Earle Cabell Federal Building
1100 Commerce Street, Dallas, Texas 75242
U.S. District Clerk’s Office (214) 753-2200
www.txnd.uscourts.gov/directories/court.html
Hon. David L. Horan
Room 1549 -- Earle Cabell Federal Building
(214) 753-2400
Hon. Paul D. Stickney
Room 1611 -- Earle Cabell Federal Building
(214) 753-2168
Hon. Irma C. Ramirez
Room 1567 -- Earle Cabell Federal Building
(214) 753-2393
Hon. Renee H. Toliver
Room 1407 -- Earle Cabell Federal Building
(214) 753-2385
First Administrative Region
Frank Crowley Courts Building
133 N. Riverfront Blvd., 5th Floor
Dallas, Texas 75207
www.firstadmin.com/
Hon. Mary L. Murphy, Presiding Judge
Page 2
(214) 653-2943
THE COURTS
Fifth District Court of Appeals
George L. Allen Sr. Courts Building
600 Commerce Street, Suite 200, Dallas, Texas 75202
Phone (214) 712-3405
www.5thcoa.courts.state.tx.us/
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Carolyn Wright, Chief Justice
David L. Bridges
Ada Brown
David Evans
Robert M. Fillmore
Molly Francis
Douglas S. Lang
Elizabeth Lang-Miers
David B. Lewis
James A. Moseley
Lana R. Myers
Michael J. O’Neill
David Schenck
Craig Stoddart
Bill Whitehill
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
(214)
Clerk of the Court
Business Administrator
712-3400
712-3412
712-3400
712-3400
712-3400
712-3411
712-3402
712-3403
712-3400
712-3413
712-3401
712-3406
712-3400
712-3400
712-3400
(214) 712-3450
(214) 712-3434
Civil District Courts
George L. Allen Sr. Courts Building
600 Commerce Street, Dallas, TX 75202
Phone (214) 653-7246
www.dallascounty.org/department/courts/
14th District Court
Hon. Eric V. Moyé
Chief Clerk
George Allen Sr. Courts Bldg., 5th Floor
(214) 653-6000
(214) 653-7337
44th District Court
Hon. Bonnie Lee Goldtstein
Chief Clerk
George Allen Sr. Courts Bldg., 5th Floor
(214) 653-6996
(214) 653-7427
68th District Court
Hon. Martin Hoffman
Chief Clerk
George Allen Sr. Courts Bldg., 5th Floor
(214) 653-6510
(214) 653-7536
Page 3
THE COURTS
95th District Court
Hon. Kenneth Molberg
Chief Clerk
George Allen Sr. Courts Bldg., 6th Floor
(214) 653-6661
(214) 653-6603
101st District Court
Hon. Staci Williams
Chief Clerk
George Allen Sr. Courts Bldg., 6th Floor
(214) 653-6937
(214) 653-7256
116th District Court
Hon. Tonya Parker
Chief Clerk
George Allen Sr. Courts Bldg., 6th Floor
(214) 653-6015
(214) 653-7446
134th District Court
Hon. Dale B. Tillery
Chief Clerk
George Allen Sr. Courts Bldg., 6th Floor
(214) 653-6995
(214) 653-7446
160th District Court
Hon. Jim Jordan
Chief Clerk
George Allen Sr. Courts Bldg., 6th Floor New Tower
(214) 653-7273
(214) 653-7271
162nd District Court
Hon. Phyllis Lister Brown
Chief Clerk
George Allen Sr. Courts Bldg., 7th Floor New Tower
(214) 653-7348
191st District Court
Hon. Gena Slaughter
Chief Clerk
(214) 653-7156
George Allen Sr. Courts Bldg., 7th Floor New Tower
(214) 653-6609
(214) 653-7117
192nd District Court
Hon. Craig Smith
Chief Clerk
George Allen Sr. Courts Bldg., 7th Floor New Tower
(214) 653-7709
(214) 653-7748
193rd District Court
Hon. Carl Ginsberg
Chief Clerk
George Allen Sr. Courts Bldg., 8th Floor New Tower
(214) 653-6998
(214) 653-7791
298th District Court
Hon. Emily G. Tobolowsky
Chief Clerk
George Allen Sr. Courts Bldg., 8th Floor New Tower
(214) 653-6781
(214) 653-6779
Tax Court & Visiting Judge
Hon. M. Kent Sims, District Judge
Chief Clerk
Civil Court Associate Judges
Hon. Sheryl Day McFarlin
Hon. Monica McCoy Purdy
Page 4
(214) 653-6061
(214) 653-6012
(214) 653-6167
(214) 653-6043
THE COURTS
Criminal District Courts
Frank Crowley Courts Building
133 N. Riverfront Blvd., Dallas, TX 75207-4313
Phone (214) 653-5950
www.dallascounty.org/department/courts/
Criminal District Court No. 1
Hon. Robert D. Burns, III
Court Coordinator
Frank Crowley Courts Bldg., 6th Floor
(214) 653-5900
(214) 653-5902
Criminal District Court 2
Hon. Don Adams
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5911
(214) 653-5912
Criminal District Court 3
Hon. Gracie Lewis
Court Coordinator
Frank Crowley Courts Bldg., 6th Floor
(214) 653-5920
(214) 653-5922
Criminal District Court 4
Hon. Dominique Collins
Court Coordinator
Frank Crowley Courts Bldg., 6th Floor
(214) 653-5930
(214) 653-5932
Criminal District Court 5
Hon. Carter Thompson
Court Coordinator
Frank Crowley Courts Bldg., 5th Floor
(214) 653-5940
(214) 653-5942
Criminal District Court 6
Hon. Jeanine Howard
Court Coordinator
Frank Crowley Courts Bldg., 6th Floor
(972) 739-3920
(972) 739-3910
Criminal District Court 7
Hon. Elizabeth Frizell
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(972) 739-3915
(972) 739-3905
194th District Court
Hon. Ernest White
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5800
(214) 653-5802
195th District Court
Hon. Fred Tinsley
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5810
(214) 653-5812
203rd District Court
Hon. Teresa Hawthorne
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5820
(214) 653-5822
Page 5
THE COURTS
204th District Court
Hon. Tammy Kemp
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5830
(214) 653-5832
265th District Court
Hon. Jennifer Bennett
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5840
(214) 653-5842
282nd District Court
Hon. Amber Givens-Davis
Court Coordinator
Frank Crowley Courts Bldg., 5th Floor
(214) 653-5850
(214) 653-5852
283rd District Court
Hon. Rick Magnis
Court Coordinator
Frank Crowley Courts Bldg., 6th Floor
(214) 653-5860
(214) 653-5862
291st District Court
Hon. Stephanie Mitchell
Court Coordinator
Frank Crowley Courts Bldg., 7th Floor
(214) 653-5870
(214) 653-5872
292nd District Court
Hon. Brandon Birmingham
Court Coordinator
Frank Crowley Courts Bldg., 6th Floor
(214) 653-5880
(214) 653-5882
363rd District Court
Hon. Tracy Holmes
Court Coordinator
Frank Crowley Courts Bldg., 5th Floor
(214) 653-5890
(214) 653-5892
Family District Courts
George L. Allen Sr. Courts Building
600 Commerce Street, Dallas, Texas 75202
Phone (214) 653-7679
www.dallascounty.org/department/courts/
254th District Court
Hon. Susan Rankin
Associate Judge, Donald Turner II
Court Administrator
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-6136
(214) 653-6754
(214) 653-6741
255th District Court
Hon. Kim Cooks
Court Administrator
George Allen Sr. Courts Bldg., 4th Floor
(214) 653-6159
(214) 653-6154
256th District Court
Hon. David Lopez
Court Administrator
George Allen Sr. Courts Bldg., 4th Floor
(214) 653-6449
(214) 653-6410
Page 6
THE COURTS
301st District Court
Hon. Mary Brown
Court Administrator
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-7407
(214) 653-7407
302nd District Court
Hon. Tena Callahan
Court Administrator
George Allen Sr. Courts Bldg., 4th Floor
(214) 653-7236
303rd District Court
Hon. Dennise Garcia
Court Administrator
(214) 653-6189
George Allen Sr. Courts Bldg., 4th Floor
(214) 653-7611
(214) 653-6186
330th District Court
Hon. Andrea Plumlee
Court Administrator
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-7207
(214) 653-7208
IV-D Family Court No. 1
Hon. George Collins
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-6686
IV-D Family Court No. 2
Hon. Sean Finn
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-7438
IV-D Family Court No. 3
Hon. Aurora Madrigal
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-7685
IV-D Family Court No. 4
Hon. Sally Green
George Allen Sr. Courts Bldg., 3rd Floor
(214) 653-6217
Juvenile District Courts
Henry Wade Juvenile Justice Center
2600 Lone Star Drive, Dallas, Texas 75212-6307
Juvenile District Clerk’s Office (214) 698-4900
www.dallascounty.org/department/courts/
304th District Court
Hon. Andrea Martin
Clerk
3rd Floor
(214) 698-4936
(214) 698-4330
305th District Court
Hon. Cheryl Lee Shannon
Clerk
3rd Floor
(214) 698-4300
(214) 698-4913
Page 7
THE COURTS
County Civil Courts
George L. Allen Sr. Courts Building
600 Commerce Street, Dallas, Texas 75202
(214) 653-7092
www.dallascounty.org/department/courts/
County Court at Law No. 1
Hon. D’Metria Benson
Court Coordinator
5th Floor
(214) 653-7556
(214) 653-6581
County Court at Law No. 2
Hon. King Fifer
Court Coordinator
5th Floor
(214) 653-7366
(214) 653-7365
County Court at Law No. 3
Hon. Sally Montgomery
Court Coordinator
5th Floor
(214) 653-7595
(214) 653-6394
County Court at Law No. 4
Hon. Ken Tapscott
Court Coordinator
5th Floor
(214) 653-7466
(214) 653-7345
County Court at Law No. 5
Hon. Mark Greenberg
Court Coordinator
5th Floor
(214) 653-6441
(214) 653-6503
County Criminal Courts
Frank Crowley Courts Building
133 N. Riverfront Blvd., Dallas, TX 75207
(214) 563-5740
www.dallascounty.org/department/courts/
County Criminal Court No.1
Hon. Dan Patterson
Court Coordinator
3rd Floor
(214) 653-5600
(214) 653-5605
County Criminal Court No.2
Hon. Julia Hayes
Court Coordinator
3rd Floor
(214) 653-5610
(214) 653-5615
County Criminal Court No.3
Hon. Doug Skemp
Court Coordinator
3rd Floor
(214) 653-5620
(214) 653-5625
Page 8
THE COURTS
County Criminal Court No.4
Hon. Nancy C. Mulder
Court Coordinator
3rd Floor
(214) 653-5630
(214) 653-5635
County Criminal Court No.5
Hon. Lisa Green
Court Coordinator
3rd Floor
(214) 653-5640
(214) 653-5645
County Criminal Court No.6
Hon. Angela M. King
Court Coordinator
3rd Floor
(214) 653-5650
(214) 653-5655
County Criminal Court No.7
Hon. Elizabeth Crowder
Court Coordinator
4th Floor
(214) 653-5660
(214) 653-5665
County Criminal Court No.8
Hon. Tina Yoo Clinton
Court Coordinator
4th Floor
(214) 653-5670
(214) 653-5675
County Criminal Court No.9
Hon. Peggy Hoffman
Court Coordinator
4th Floor
(214) 653-5680
(214) 653-5685
County Criminal Court No.10
Hon. Roberto Cañas, Jr.
Court Coordinator
4th Floor
(214) 653-5690
(214) 653-5695
County Criminal Court No.11
Hon. Shequitta Kelly
Court Coordinator
4th Floor
(214) 712-5068
(214) 712-5077
County Court of Criminal Appeals
Frank Crowley Courts Building
133 N. Riverfront Blvd., Dallas, Texas 75207
(214) 653-5740
www.dallascounty.org
County Court of Criminal Appeals No. 1
Hon. Kristin Wade
Court Coordinator
3rd Floor
(214) 653-5700
(214) 653-5705
County Court of Criminal Appeals No. 2
Hon. Jeff Rosenfield
Court Coordinator
3rd Floor
(214) 653-5710
(214) 653-5715
Page 9
THE COURTS
Probate Courts
Dallas County Records Building
509 Main Street, Dallas, Texas 75202
(214) 653-7241
www.dallascounty.org
Probate Court No. 1
Hon. Brenda Hull Thompson
Docket Coordinator
2nd Floor
(214) 653-7236
(214) 653-7236
Probate Court 2
Hon. Ingrid M. Warren
Docket Coordinator
2nd Floor
(214) 653-7138
(214) 653-7138
Probate Court 3
Hon. Margaret Jones-Johnson
Docket Coordinator
2nd Floor
(214) 653-6166
(214) 653-6166
Other Important Numbers
Dallas County Judge
Clay Jenkins
(214) 653-7949
Dallas County Clerk
John F. Warren
(214) 653-7099
Dallas County District Clerk
Gary Fitzsimmons
(214) 653-7149
Dallas County District Attorney’s Office
Susan Hawk
(214) 653-3600
Dallas County Law Library (Civil & Criminal)
Mary Rankin
(214) 653-7481
Dallas City Attorney’s Office
(214) 670-3519
Page 10
TIPS TO UNDERSTANDING THE LAW
Tips to Understanding the Law
The information in this book is to be used as an educational guide only, and should not be
interpreted as a legal consultation. Readers of these articles are advised to seek an attorney
if a legal consultation is needed. Laws are subject to change, thus the accuracy of this
information cannot be guaranteed. Readers act on this information solely at their own risk.
Neither the Dallas Bar Association, any of its affiliates, nor the authors shall have any
liability stemming from these articles
Page 11
ACCESS TO THE COURTROOM
Access to the Courtroom
The United States Supreme Court has held that the First Amendment guarantees the
public and the press the right to attend criminal trials. Richmond Newspapers v. Virginia,
448 U.S. 555, 575-80 (1980). In Texas state courts, the presumption of access to
criminal trials is also protected by the Texas Code of Criminal Procedure, which states that
“proceedings and trials in all courts shall be public.” TEX. CODE CRIM. P. § 1.24. Although
this right is not absolute, it is accorded a high degree of protection. This protection
requires that, before a court may close a criminal trial to the public, it must make specific
findings that (1) closure is essential to preserve higher values and (2) the restriction is
narrowly tailored to serve that higher interest. See Press-Enterprise Co. v. Superior
Court, 478 U.S. 1, 13-15 (1986).
The most common interest that is balanced against the right of public access to the
courtroom is a criminal defendant’s Sixth Amendment right to a fair trial. Under strict
scrutiny, a court must evaluate whether alternatives, such as changing venue or
sequestering the jury, could protect the defendant from any harms that may be
associated with trial publicity. Press-Enterprise, 478 U.S. at 14-15.
Access to Pretrial Criminal Proceedings
The Supreme Court has also determined that the press’s qualified right of access to the
courtroom applies to pretrial criminal proceedings. Press-Enterprise, 478 U.S. at 13-15.
However, some pretrial proceedings present stronger arguments for limiting access
because, for example, certain evidentiary rules and other protections available at trials
may not apply before trial.
Accordingly, the right of access to some pretrial criminal proceedings is more limited in
some circumstances. For example, access to bail reduction hearings may be limited to
persons actually present at the time the motion for bail is made. United States v. Chagra,
701 F.2d 354, 363-64 (5th Cir. 1983). There are also some criminal proceedings to which
there is no right of access. These proceedings include grand jury proceedings, TEX. CODE
CRIM. P. § 20.02; legitimate in camera hearings, Brandley v. State, 691 S.W.2d 699, 708
(Tex. Crim. App. 1985); and jury deliberations, TEX. CODE CRIM. P. § 36.22.
Access to Civil Proceedings
The Fifth Circuit – the federal appeals court that covers Texas – has ruled that First
Amendment guarantees of a qualified right to access may be implicated in civil
proceedings as well. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). However, in the
civil context, the media may face motions for protective orders that curtail access in
limited circumstances. For example, in rare situations, a court may close proceedings in
order to protect sensitive and valuable trade secrets. A separate rule of civil procedure,
Rule 76a, governs attempts to seal court records.
Page 12
ACCESS TO THE COURTROOM
Access to Texas Juvenile Proceedings
In Texas state courts, juvenile hearings are open to the public unless the judge finds good
cause that the public should be excluded. TEX. FAM. CODE ANN. § 54.08. However, if the
child is under 14 years of age, an opposite presumption applies, and the hearing will be
closed unless the interests of the child or the public would be better served by opening
the hearing to the public.
Challenging Closure Orders
The United States Supreme Court held that a court must determine closure of the
courtroom on a case-by-case basis. Globe Newspapers Co. v. Superior Court, 457 U.S.
596, 609 (1982). The Court noted that for this analysis to be meaningful, a court must
provide the public and press with notice and an opportunity to be heard.
Cameras in the Courtroom
The United States Supreme Court has rejected the argument that the presence of
cameras in a courtroom in a criminal trial necessarily deprives an accused of his or her
right to a fair trial or to due process. Chandler v. Florida, 449 U.S. 560, 575 (1982).
However, the Court has also made clear that an accused’s right to a fair trial requires
safeguards to protect the criminal defendant’s constitutional rights from the risks posed
by cameras in the courtroom. Estes v. Texas, 381 U.S. 532 (1965).
Rules in Federal Courts
Although there is no constitutional ban that applies to cameras in the courtroom,
Congress has enacted such rules. The Federal Rules of Criminal Procedure specifically
prohibit courtroom photography and broadcasting. FED. R. CRIM. P. 53. Likewise, the
federal courts in Dallas and Fort Worth have local rules that prohibit photographing,
broadcasting, recording or televising a judicial proceeding in either civil or criminal cases.
See N.D. Tex. Local Rule 83.18; N.D. Tex. Local Criminal Rule 53.1.
Rules in State Courts
In Texas state civil court proceedings, television, radio, and photographic coverage may –
in the discretion of the presiding judge – be allowed if the consent of the parties and each
witness is obtained. TEX. R. CIV. P. 18c. However, media coverage cannot “unduly distract
participants or impair the dignity of the proceedings.” Although there is no analogous rule
of procedure for state criminal proceedings, the same considerations generally govern a
judge’s decision.
In addition, individual cities and counties may promulgate local rules regarding media
broadcasting or recording of civil proceedings. Dallas County has a set of Local Rules
regarding broadcasting and recording of such hearings. Those rules are available on the
Page 13
ACCESS TO THE COURTROOM
Dallas County website and state that the underlying goal is to favor recording and
broadcasting, while at the same time maintaining the dignity, decorum and impartiality of
the proceedings. The rules generally require written notice of a request to record or
broadcast a proceeding to be filed with the court and served on all parties within at least
one day of the scheduled hearing. A party may request a hearing on objections to such
coverage, but any objections must demonstrate the specific harm that would be caused
by any media coverage. The court has discretion to allow, deny, limit or terminate media
coverage in the interests of justice, but any court decision not to allow recording or
broadcasting must contain specific findings that justify the decision. The recording or
broadcasting of jury selection, proceedings in chambers, jurors in the courtroom or in
deliberations, and conferences between trial participants is not allowed.
Texas also allows broadcasting of appellate proceedings, but requires certain steps to be
undertaken. TEX. R. APP. P. 14. Requests to cover arguments of a case must be filed five
days prior to the proceeding and must be served on all parties. Requests to cover all
other proceedings must be filed two days prior to the proceeding. The judge may also
limit or prohibit coverage in order to protect the parties’ rights, ensure the dignity of the
court and maintain the orderly conduct of the proceedings.
Reviewed by Sadé Lewis, Oklahoma City University School of Law, J.D. Candidate, 2016, Texas Legal
Society, President. She can be reached at [email protected]
Page 14
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) encompasses all methods of dispute resolution other
than litigation. To litigate means each side is giving up the opportunity to exercise control
over the outcome of their case by deferring decision-making/solution-generating power to
a judge or jury. ADR allows each party to retain that control and potentially come to a
mutually agreeable solution that addresses each party’s concerns. Nearly all courts
encourage ADR to more efficiently clear cases off dockets that can be settled without
having to complete the long, arduous, court-clogging process of adversarial litigation.
Chapter 154 of the Texas Civil Practice and Remedies Code imposes on all courts
the responsibility to carry out Texas’s policy of encouraging the peaceful resolution of
disputes and early settlement of pending litigation.
ADR can be ordered or requested prior to, or even during, litigation. Once the parties’
dispute is in litigation, courts have authority to appoint a third party neutral to conduct an
ADR procedure between the parties as long as they’ve met Chapter 154’s required
qualifications before they can be appointed by a court to conduct an alternative dispute
resolution procedure. More commonly, parties to a dispute mutually agree on which third
party neutral will conduct the chosen ADR procedure.
ADR encompasses all methods of dispute resolution other than litigation. Simple direct
settlement negotiations between parties (usually through their attorneys), mediation
(where an neutral third party facilitates negotiations between two parties), arbitration
(where a single person or panel, other than a court, makes a binding determination of
who wins a dispute), and the collaborative law process (see the sub-section below for
further details) are the most common forms of ADR. While mediation is more commonly
used than arbitration and collaborative law, arbitration has become a frequently used ADR
method, particularly in commercial disputes, and the collaborative law process has
increasingly gained the attention and following of legal practitioners. The full range of
ADR methods authorized by the Texas legislature is set out in Chapter 154.
Texas requires that all matters, including the conduct and demeanor of the disputing
parties and their counsel, observed during an ADR process remain confidential, never to
be disclosed, including to the court. This feature encourages parties and their counsel to
be fully engaged in trying to reach a fair settlement of their dispute during the alternative
dispute resolution process without fear of reprisal in court for admissions or suggested or
rejected solutions. Parties to a dispute may mutually agree on which third party should be
selected to conduct the alternative dispute resolution procedure.
Page 15
ALTERNATIVE DISPUTE RESOLUTION
However, it is interesting to note that, as of March 1, 2013, new rules passed by the
Texas Supreme Court impose various limitations of the ability of Texas courts to refer
certain cases to alternative dispute resolution procedures.
Collaborative Law
Collaborative law is a dispute resolution process that takes place during structured faceto-face negotiations between the parties and their lawyers, akin to a settlement
negotiation. The collaborative law process is conducted pursuant to a written Participation
Agreement, which is a contract in which the parties and their lawyers agree on guidelines
to be followed during the negotiations.
The lawyers in the collaborative process must agree in advance not to represent their
respective clients in court proceedings. In other words, if the parties are unable to settle
during the process, their collaborative lawyers must withdraw, and the parties must
proceed to litigation with new attorneys. This requirement results in motivating the
collaborative lawyers and the parties to do their utmost to resolve the dispute. In
addition, the collaborative lawyers are able to concentrate 100% of their skills on
settlement without being distracted by trial preparation and discovery deadlines.
Similarities between Mediation, Negotiation, and the Collaborative Law Process
To maximize chances of successfully resolving the dispute without further court
intervention, participation in mediation, negotiation, or the collaborative process calls for
a paradigm shift in the participants’ behavior and mental processes. While litigation
focuses on the “blame game” and the past bad acts of the parties, the focus of mediation,
negotiation, and the collaborative process should be on the interests and goals of the
parties and mutually agreeable solutions that will address each side’s concerns. There
should be no expectation of “winners” and “losers” in either of these processes. Mediation
and the collaborative process not only encourage the parties to actively participate in all
decision making relating to resolution of the issues in dispute, these processes require
that each party participate in all dispute resolution meetings. Binding decisions are never
made unless the parties are present, and all parties must personally consent to the
proposed terms of settlement.
Differences between Mediation and the Collaborative Law Process
In mediation, the mediator controls the room and facilitates the dispute resolution
dialogue between the parties, who are also typically accompanied by their lawyers. The
mediator uses his/her knowledge and discretion as to whether, how, and at which points
during the process to facilitate dialogue between the parties. However, in the collaborative
law process, neutral individuals (if any) invited into the process usually serve the purpose
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ALTERNATIVE DISPUTE RESOLUTION
of providing expert opinions and explaining specialized information and are typically not
expected to facilitate the dispute resolution dialogue.
The mediator may choose to keep the parties together in the same room or, more
commonly, places them in separate rooms while the mediator going back-and-forth
between the rooms (shuttle-diplomacy). By contrast, during the collaborative law
negotiations, all sides to the dispute generally stay in the same room and directly
communicate with each other to develop a resolution to the dispute.
To assure the success of the mediation process, proper training for only the mediator is
critical. However, for a successful collaborative law process, all professionals (including
each side’s lawyers) participating in the process should be trained; if each professional
participant does not understand the collaborative law process, his/her contributions will
undermine (rather than enhance) the opportunities to succeed in settling the dispute.
Reviewed by Adam M. Swartz., of The Swartz Law Firm, PLLC. He can be reached at
[email protected] Commentary expresses only the view of the author and does not necessarily
reflect the views or opinions of THE SWARTZ LAW FIRM. The information provided herein is not intended
to be legal advice.
Page 17
APPELLATE LAW AND PRACTICE
Appellate Law and Practice
While the Federal Constitution empowers the Congress (U.S. Constitution, article I, § 1),
and the Texas Constitution empowers the Legislature (Texas Constitution, article III, § 1),
to enact laws, both governing documents empower the judiciary to interpret those laws
(U.S. Const. art. III, § 1, Tex. Const. art. V, § 1). And an important portion of our
jurisprudence is based on the written opinions of the judiciary. See Gelston v. Hoyt, 16 U.S.
246, 4 L. Ed. 381 (1818) and Smissen v. State, 71 Tex. 222, 9 S.W. 112 (1888) (our courts
expound the law). These written opinions are issued by appellate courts (the Texas and
Federal courts of appeal and the Texas and United States Supreme Courts) in the course of
proceedings before them, whether those proceedings are appeals from judgments or
interlocutory (i.e., interim) orders or are original proceedings initiated in the appellate
courts requesting intervention outside of the typical appeals process (ex., mandamus
review of discovery rulings or habeas corpus proceedings).
Lifecycle of an Appeal:
The trial of a case is just one aspect of litigation; there are multiple phases that can affect
a party’s rights on appeal.
Pre-Trial & Trial
“Error preservation” – that is, making sure complaints about the trial court’s decisions are
clearly documented in the record of the trial – is vital to the appeal process, because
generally only those errors (or, at least, alleged errors) objected to or otherwise brought to
the trial court's attention in a timely manner and ruled upon by the trial court may be
considered on appeal. For example, see Texas Rule of Appellate Procedure 33.1 (requiring
a record of the objection and ruling to preserve error). In other words, the trial court must
be afforded the opportunity to "do the right thing," and litigants and their attorneys are not
allowed to simply "lie behind the log" and raise an issue on appeal that was not presented
and preserved in the trial court. In certain circumstances in the Federal courts, the
appellate courts may opt to review decisions that are clearly erroneous or that affect
substantive rights even if an objection was not properly raised. See, for example, Burks v.
Firestone Tire & Rubber Co., 633 F.2d 1152 (5th Cir. 1981) and Federal Rule of Criminal
Procedure 51. The need to preserve error involves one of the most important documents
in a trial: the jury charge. This document, prepared by the lawyers but approved and
submitted to the jury by the judge, provides the written questions, instructions, and
definitions used by the jury in rendering its verdict after the lawyers’ closing arguments;
and errors must be stated on the record of the trial and ruled upon as a prerequisite to an
appeal. See, for example, Federal Rule of Civil Procedure 51 and Satterwhite v. Safeco Land
Title of Tarrant, 853 S.W.2d 202 (Tex. App.—Fort Worth 1993).
Post-Verdict and Post-Judgment Proceedings
After the jury has answered the questions in the jury charge and rendered its verdict, the
actual trial concludes. But the proceedings in the trial court often continue, as the parties
file various post-verdict and post-judgment motions, such as requests that the judge
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APPELLATE LAW AND PRACTICE
disregard all or part of the jury's verdict (ex., because of procedural and/or evidentiary
problems), grant a new trial, reduce excessive damages, or modify the judgment in some
respect (e.g., application of damages caps, computation of pre-judgment or post-judgment
interest). These motions can also serve to preserve error for the appeal. See, for example,
Texas Rule of Civil Procedure 324 (requiring a motion for new trial as a prerequisite to
complaining on appeal of jury misconduct, newly discovered evidence, or that a jury finding
is against the overwhelming weight of the evidence).
Appeals in the Appellate Courts
When a party is going to appeal a trial court’s judgment, the first step is filing a “notice of
appeal.” Once the notice of appeal is filed, the court reporter prepares the reporter's record
(the testimony and exhibits from the trial) and the court clerk (that is, either the county
clerk or the district clerk) prepares the clerk's record (the documents filed in the trial court
throughout the litigation) for filing in the court of appeals. These two things together
comprise the appeal record. After the court of appeals receives and files the appeal record,
the appellate attorneys research any legal issues to be presented on appeal and draft their
respective briefs (appellant being the party who filed the appeal, and appellee being the
responding party), outlining the factual and procedural background of the case, the issues
to be presented, and the legal arguments and authorities supporting their positions.
Upon reviewing the briefs, the court of appeals has discretion to request that the appellate
attorneys present oral argument. Oral argument typically involves a panel of three justices
from the court of appeals, who hear each side’s legal arguments and question the appellate
attorneys about any legal or factual matters in the case. Oral argument is very different
from a trial because there is no court reporter, no witnesses or evidence are admitted
(because the parties are limited to what is in the appeal record), and each side usually is
limited to twenty or thirty minutes of argument with five to ten minutes for the appellant
to make a rebuttal argument. The court of appeals may affirm or modify the trial court’s
judgment, reverse the judgment and return the case to the trial court for additional
proceedings, or render the judgment or action (such as dismissal) which the trial court
should have reached. See, for example, Texas Rule of Appellate Procedure 43.2 (which lists
the various actions the court of appeals may take). Once the court of appeals issues its
judgment, a party may seek to have the matter reconsidered by all 12 of the justices serving
on that court of appeals (called an “en banc” review); the en banc panel may or may not
decide to reconsider the matter, may affirm or modify the original appellate judgment, or
may render a completely different judgment (i.e., one of the other options, for example, in
Texas Rule of Appellate Procedure 43.2).
Discretionary review by the Supreme Court (i.e., the Supreme Court of Texas or the U.S.
Supreme Court) also is possible following the court of appeals’ decision. Review of a case
by the U.S. or Texas Supreme Court is called “discretionary” because, generally, the high
courts only rule on issues that significantly affect the jurisprudence (ex., statutory
interpretation or constitutional rights). Appellate attorneys first file a short petition for
review (or petition for certiorari in the U.S. Supreme Court), and, if the court is interested
in the issue(s) presented, it will request full briefs on the merits. If the high court grants
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APPELLATE LAW AND PRACTICE
the petition for review, it may issue a per curiam opinion (an opinion from the court as a
whole) or it may hear oral argument and issue a full opinion on the merits authored by one
of the Justices (in which one or more Justices may concur or even dissent).
Original Appellate Actions
Certain legal actions – such as a request for a writ of habeas corpus or a writ of mandamus
– may be initiated first in the court of appeals or the Supreme Court (as opposed to being
initiated in the trial court first). See Texas Rule of Appellate Procedure 52.1. These are
generally actions requesting the court of appeals or Supreme Court to order another
government official to take or refrain from taking some action where an abuse of discretion
or process is involved and there is no adequate remedy through a normal appeal. Will v.
United States, 389 U.S. 90, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967); Walker v. Packer, 827
S.W.2d 833 (Tex. 1992). For example, a mandamus action could be appropriate to require
a trial court’s compliance with a statute. See In re Walker, 428 S.W.3d 212 (Tex. App.—
Houston [1st Dist.] 2014) (mandamus is an appropriate means to require a trial court to
comply with the Uniform Child Custody Jurisdiction & Enforcement Act's jurisdictional
requirements). And mandamus is appropriate where complying with a trial court’s order
would force a party to give up legally privileged information. In re Kellogg Brown & Root,
Inc., 756 F.3d 754 (D.C. Cir. 2014). A habeas corpus proceeding is appropriate where a
person has been unlawfully confined or imprisoned. Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 178 L. Ed. 2d 624 (2011); In re Linan, 419 S.W.3d 694 (Tex. App.—Houston
[1st Dist.] 2013).
These proceedings are initiated by filing a petition in the appellate court. See Federal Rule
of Appellate Procedure 21, Texas Rule of Appellate Procedure 52.3. Similar to appealing a
trial court’s order or judgment, a record is usually filed with the appellate court along with
the petition for relief. See Federal Rule of Appellate Procedure 21(a)(2)(C), Texas Rule of
Appellate Procedure 52.7. The appellate court may deny the petition without any response
from the other parties or invite the other parties to file a response and then decide whether
to rule or require additional briefing materials. See Federal Rule of Appellate Procedure
21(b), Texas Rules of Appellate Procedure 52.4 and 52.8. After briefing, the appellate court
may invite the parties to make oral argument or it may rule without oral argument; the
court may deny the request outright or grant it outright or even conditionally grant the
relief (i.e., issue the writ only if the official fails to adjust his or her conduct in accordance
with the appellate court’s judgment). See Federal Rule of Appellate Procedure 21, Texas
Rule of Appellate Procedure 52.8.
Edited by Jim E. Bullock, CANTEY HANGER, LLP, Dallas, Texas. Commentary expresses only the view of the
author and does not necessarily reflect the views or opinions of CANTEY HANGER, LLP. The information
provided herein is not intended to be legal advice.
Page 20
CONSTRUCTION LAW
Construction Law
The construction industry is impacted by significant regulations and statutes from all levels
of government (federal, state, and local). Lawyers who come in contact with constructionindustry issues may practice in surety, insurance, labor and employment law, personal
injury litigation, consumer law, real estate finance and transactions, environmental law,
and a host of other areas. Certain statutes may apply solely to residential construction
activities, while others are limited to commercial construction activities.
Some commonly encountered federal statutes impacting the construction industry
include:
1. The Miller Act, which provides when and how a general contractor must provide a bond
to guaranty payment to subcontractors and suppliers on federal government projects;
2. The Occupational Safety and Health Act, which creates a host of legal issues relative to
work-place safety and on-the-job injuries;
3. The Clean Water Act, which impacts the manner in which contractors develop property
that may relate to the waters of the United States;
4. The Americans with Disabilities Act, which impacts the design and construction of
structures accessible to the public: and
5. The Davis-Bacon Act, which requires payment of prevailing wages and benefits to
employees of contractors engaged in federal government construction projects.
Some commonly encountered Texas statutes that impact construction include:
1. Texas Property Code:
Chapter 5 dealing with the sale of real estate and disclosures relating to the property;
Chapter 27 governing the construction and repair of residences and claims against
homebuilders and remodelers;
Chapter 28 governing the payment of contractors and subcontractors; and
Chapter 53, establishing rules on the creation and enforcement of mechanic's liens on
residential and commercial properties;
2. Texas Government Code, Chapters 2251, 2252, 2253 and 2267, which regulate the
award of construction projects for governmental subdivisions of the state of Texas and the
mechanisms to require bonds to guaranty payments to subcontractors and suppliers; and
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CONSTRUCTION LAW
3. Texas Civil Practice & Remedies Code, Chapter 150, which requires a Certificate of Merit
affidavit issued by a licensed design professional to be filed with a plaintiff’s petition in cases
involving alleged design professional negligence.
In addition to these statutes, judicial decisions over the past century have expanded on the
duties and obligations of owners, contractors, subcontractors, and others involved in
commercial and residential construction. Rights and obligations exist through contractual
terms, court-created implied duties, or common-law doctrines.
Page 22
CORPORATIONS AND GOVERNANCE
Corporations and Governance
There are many types of business organizations, including corporations, partnerships and
limited liability companies. For public companies, the corporation structure is most
common.
Corporations may be classified according to their purpose (for-profit or non-profit,
educational, etc.). They may also be classified as foreign or domestic or public or private.
Private corporations with few stockholders which often exert direct control over the business
may be referred to as “close” corporations. Classifications may overlap or vary depending
upon state statutes.
All corporations are create or formed filing of Articles of Incorporation with the Secretary of
State. There are mandatory and optional provisions for the Articles of Incorporation which
may vary by state. In addition to the Articles of Incorporation, corporations are governed
by their bylaws and official actions or resolutions.
A corporation may be formed for the general purpose of engaging in any lawful business or
may be formed for a specific, limited purpose as set forth in the Articles of Incorporation.
The owners of a corporation are known as shareholders, and their ownership interest is
represented by a quantity of shares of stock. Except in close corporations, shareholders
usually do not have any direct involvement with the management of the corporation’s
business, at least not in their capacity as shareholder. The shareholders elect members of
a Board of Directors to oversee and manage the corporation’s business activities
consistently with the corporation’s by-laws. The board of directors may appoint corporate
officers, and those officers manage and are responsible for the day-to-day operations of
the business either directly or through employees, contractors and agents who act on behalf
of the corporation.
Officers, Directors and Shareholders have different roles. Shareholders are owners, elect
directors and approve of a small number of major actions and decisions. Directors establish
the strategic direction and policies of the corporation and are charged by the shareholders
with operating the business in a manner that maximizing their ownership value. Officers
are usually direct actors in the business with responsibility for managing employees, agents
and assets in the day-to-day execution of the strategic direction set by the Board of
Directors.
Unless limited by the articles of incorporation or by statutes, corporations have the same
rights and duties as individuals.
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CORPORATIONS AND GOVERNANCE
Securities Law Generally
Federal securities laws are designed to protect investors and shareholders and deter abuses
within the capital markets. There are two primary federal statutes that make up the
Securities Law – The Securities Act of 1933 and the Securities Exchange Act of 1934. In
additionally, there are state regulations that may apply and operate concurrently with
federal law. The document used to market investments to potential investors, called the
prospectus, is part of the registration statement.
The Securities Act of 1933 addresses the initial offer and sales of securities. The goal of the
Securities Act of 1933 is to require issuers of stock or other securities to provide disclosures
sufficient for investors to make decisions about investments in the securities. Unless an
exemption applies, securities offered or sold in the United States must be registered.
The Securities Exchange Act of 1934 addresses the post-issuance or post-Initial public
offering of securities, including the trading, purchase, and sale of securities, and established
the Securities and Exchange Commission (SEC), which enforces United States federal
securities laws. The ’34 Act applies to companies listed on a national securities exchange
and to most public companies, but can apply to private corporations in some circumstances.
It requires the companies to make regular public filings of company information with the
SEC and regulates insider trading, which is illegal trading of securities based on non-public
information.
On July 30, 2002, the Sarbanes-Oxley Act of 2002 became law. Sarbanes-Oxley amended
various provisions of the Securities and Exchange Act of 1934 in an effort to protect
investors by improving corporate disclosures and reporting. The Sarbanes-Oxley Act
provides for:

stiffer penalties and revised remedies for some violations

enhanced financial disclosures

the reduction of mandatory disclosure periods for some insider trading transactions,
and

the protection of whistleblowers of publicly traded companies.
Sarbanes-Oxley also creates a Public Company Accounting Oversight Board, which
addresses audits of public companies in an effort to foster more transparency for public
shareholders.
In 2010, the Dodd-Frank Act was enacted to further amend the Securities Exchange Act of
1934. The Dodd-Frank Act relates to the disclosure and reporting requirements for asset-
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CORPORATIONS AND GOVERNANCE
backed securities. It gives shareholders a non-binding vote regarding the compensation of
executives and golden parachute clauses, among other things.
The Dodd-Frank Wall Street Reform and Consumer Protection Act addresses executive
compensation and corporate governance. It mandates independence requirements for
compensation committee members and compensation consultants. It also gives
compensation committees of Boards of Directors the authority to hire independent counsel
and other professionals at the expense of the corporation.
The Private Securities Litigation Reform Act (PSLRA) addresses securities litigation by
private parties. The PLSRA addresses class action lawsuits, safe harbor provisions for
forward-looking statements, and responsibilities for accountants providing auditing and
certification as part of financial statements.
Written by Jeffrey M. Harvey and Corey Weinstein, Klemchuk LLP. Mr. Harvey can be reached at
[email protected]
Page 25
DEFAMATION: LIBEL AND SLANDER
Defamation: Libel and Slander
Defamation is broadly defined as the invasion of a person’s interest in their reputation and
good name. Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex.2013). More specifically,
defamation is a false statement of fact, told, published, or re-published about an identifiable
living person, which harms that person’s reputation in the community. Libel is a defamatory
statement expressed in written form; slander is generally spoken. Although media
broadcasts are spoken rather than printed, they are considered to fall under libel. Dolcefino
v. Randolph, 19 S.W.3d 906 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
To prevail on a defamation claim generally, a plaintiff must show the following:
(i) that the defendant published a statement of fact (ii) of and concerning the plaintiff,
(iii) the statement was defamatory, (iv) the statement was false, (v) the statement
resulted in injury to the plaintiff (unless injury is presumed). A.H. Belo Corp. v. Rayzor,
644 S.W.2d 71, 79-83 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.). Note: the elements
of a defamation action can change depending on the status of the plaintiff, the status of the
defendant, the type of speech involved, and the type of defamation pleaded.
Since June 14, 2013, a plaintiff is required to serve the defendant with a request for
mitigation to be eligible to recover actual and punitive damages. The deadline to serve the
request for actual damages is before limitations expire; the deadline for exemplary
damages is within 90 days of learning of the defamation.
Even if all of these elements are met, a journalist may still be protected by certain privileges
and additional defenses. It is helpful to keep the following principles in mind:
1. Who is a media defendant?
The term “media defendant” refers to members of both print and broadcast media.
Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003). It includes
electronic/online media. A defendant qualifies if their primary business is reporting
the news, and the defendant is acting in the capacity of a journalist or news reporter
when publishing the information in question. Service Empls. Int’l Un. V. Professional
Janitorial Serv., 415 S.W.3d 387, 398 (Tex.App.—Houston [1st Dist.] 2013, pet. Filed
11-1-13).
Whether an online publisher of information qualifies as a media defendant depends
on various factors, including: (i) the nature of the publication, (ii) the editorial
process, (iii) the volume of dissemination, and (iv) the publisher’s professional
relationship to and compensation for the publication. For example, in one recent
case, an online publisher (blogger) who had journalistic experience, a substantial
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DEFAMATION: LIBEL AND SLANDER
reader following, and who reported on issues of inherent public concern was
considered to be a media defendant. Kaufman v. Islamic Society, 291 S.W.3d 130
(Tex. App.—Fort Worth 2009, pet. denied).
2. The Court focuses on the article as a whole.
The subject’s opinion of an article or story is irrelevant for the purposes of
establishing liability. Farias v. Bexar County Bd. of Trustees for Mental Health and
Mental Retardation Servs., 925 F.2d 866, 878 (5th Cir. 1991). The test is how a
reasonable person or the general public would interpret the language, not how the
story’s subject interpreted it. Schauer v. Memorial Care Syst., 856 S.W.2d 437, 448
(Tex. App.—Houston [1st Dist.] 1993, no writ), partially overruled on other ground;
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 423 (TEX. 2000). Words must
be given their ordinary meaning” as read and construed by persons of ordinary
intelligence.” Taylor v. Houston Chronicle Publ’g Co., 473 S.W.2d 550, 553-54 (Tex.
Civ. App.—Houston [1st Dist.] 1971, writ ref’d n.r.e.).
The standard for what constitutes defamation is high. Courts have held that “[a]
statement may be false, abusive, unpleasant, and objectionable to the plaintiff
without being defamatory.” Rawlins v. McKee, 327 S.W.2d 633, 635 (TEX. CIV. APP.—
TEXARKANA 1959, writ ref’d n.r.e.).
The court must consider the communication as a whole rather than examining
“separate sentences or portions.” Musser v. Smith Protective Serv., Inc., 723 S.W.2d
653, 655 (TEX. 1987). Statements may not be made defamatory by taking them
out of context. Id. Rather, the entire statement must be viewed in its context. City
of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005).
3. Truth and Falsity.
A basic element of a defamation claim is that the statement at issue in the lawsuit
must be false. Rayzor, 644 S.W.2d at 79-80; Bentley v. Bunton, 94 S.W.3d 561
(Tex. 2002). In other words, a plaintiff suing for defamation must prove the falsity
of the statement. Id.; Connick v. Myers, 461 U.S. 138 (1983). Even where the
statement relates only to private matters, truth is an absolute defense to defamation
by Texas statute. Tex. Civ. Prac. & Rem. Code § 73.005.
Under certain circumstances, even if individual statements considered in isolation
are literally true or non-defamatory, a publication can convey a false and defamatory
meaning by omitting or juxtaposing facts. Turner v. KTRK Television, Inc., 38
S.W.3d 103, 114–15 (TEX. 2000).
Pure opinions are not grounds for defamation because they cannot be proven true
or false. Howell v. Hecht, 821 S.W. 2d 627, 631 (Tex. App.—Dallas 1991, writ
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DEFAMATION: LIBEL AND SLANDER
denied). The United States Supreme Court has made clear that opinions that do not
imply false facts are protected. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
An opinion, however, can be actionable in defamation if it expressly or implicitly
asserts facts that can be objectively verified. Id.; Bentley v. Bunton, 94 S.W.3d 561
at 580 (Tex. 2002).
Texas courts have found editorial statements based on stated facts to be nonlibelous opinion. El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 800 (Tex. App.—El
Paso 1986, writ ref'd n.r.e.) (finding references to an opponent as a quack, hoke
artist, imported fear-monger and someone who expresses incomprehensible mumbo
jumbo were protected as opinion).
If an opinion implies false and defamatory facts, a plaintiff may succeed in claiming
defamation. Shearson, Lehman, Hutton, Inc. v. Tucker, 806 S.W.2d 914, 920 (Tex.
App.—Corpus Christi 1991, writ dism’d w.o.j.).
Statements considered epithets or rhetorical hyperbole aren’t actionable because
they are not objectively verifiable. American Broad. Cos. v. Gill, 6 S.W.3d 19 (Tex.
App.—San Antonio 1999, pet. denied).
4. Public and Private Persons
When a private figure sues for defamation, the plaintiff must show that the
publication of the statement was negligent, i.e., that it violated a duty of reasonable
care. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); KBMT Operating Co.,
LLC v. Toledo, 434 S.W.3d 276 (Tex. App.—Beaumont 2014).
Where a plaintiff is classified as a public figure, the standard of fault is that of
actual malice, a much higher standard. KBMT Operating Co., LLC v. Toledo, 434
S.W.3d 276 (Tex. App.—Beaumont 2014); see New York Times Co. v. Sullivan, 376
U.S. 254, 283 (1964).
“Public figures” fall into three (3) general categories: general, limited
purpose, and involuntary.
 A person who is a public figure for a general purpose is a person who
is so well-known as to be a household name (Madonna, Oprah
Winfrey).
 A limited purpose public figure is someone plays more than a trivial
or tangential role in a public controversy (and is suing on a statement
relating to that person’s role in the public controversy).
 An involuntary public figure is one who becomes a public figure
through no purposeful action of his own. Wells v. Liddy, 186 F.3d 505
(4th Cir. 1999).
A plaintiff who is a public figure or a public official must show “actual malice” in
order to recover on a defamation claim. “Actual malice” means that the defendant
o
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DEFAMATION: LIBEL AND SLANDER
made the statements knowing that they were false or with “reckless disregard” as
to their falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). “Reckless
disregard” is not negligence or even gross negligence. It is “a high degree of
awareness of probable falsity” and requires the plaintiff to prove that the defendant
“in fact entertained serious doubts as to the truth of the publication.” Carr v.
Brasher, 776 S.W.2d 567, 571 (Tex. 1989).
In addition, a defamatory statement must refer to an identifiable plaintiff and not
merely to members of a class or group of persons. For example, statements about
dangerous practices in the beef industry were not actionable because they didn’t
single out a particular plaintiff. Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858
(N.D. Tex. 1998).
5. ”Of and Concerning”
The plaintiff must show that the challenged statement was “of and concerning” the
plaintiff. See Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960).
Although the statements at issue must refer to the plaintiff, the actual naming of
the plaintiff is not necessary as long as those who knew and were acquainted with
the plaintiff understood from reading the publication that it referred to the plaintiff.
Newspapers, Inc., 339 S.W.2d at 894; Diaz v. Rankin, 777 S.W.2d 496 (Tex. App.—
Corpus Christi 1989, no writ) (holding that broadcast accusing “owner” and
“operator” of specific golf course was sufficient for libel action).
A person can be defamed by implication when a publication conveys a false and
defamatory impression by omitting material facts or by juxtaposing facts. Scripps
Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829 (Tex. App.—Corpus Christi 2003,
pet. denied).
6. Damages
In a defamation lawsuit, the plaintiff can recover actual damages, special damages
(sometimes called consequential damages, like loss of employment or loss of
earning capacity), and exemplary damages (aka punitive damages) if a showing of
actual malice is made. Generally, in a defamation action a plaintiff cannot recover
attorney fees or get injunctive relief to prevent defamatory speech. Davenport v.
Garcia, 834 S.W.2d 4 (Tex. 1992).
7. Defenses
Truth is always a defense to a defamation action.
Consent (where a party consents to or invites the publication of a statement) also
provides an absolute privilege for the publisher of a statement even if it is
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DEFAMATION: LIBEL AND SLANDER
defamatory. Saucedo v. Rheem Mfg., 974 S.W.2d 117 (Tex. App.—San Antonio
1998, pet. denied).
In addition to the statutory qualified privilege enjoyed by print and broadcast
media, another defense is that the plaintiff is essentially libel-proof—that he or she
has no reputation to lose. For example, in one case a plaintiff with an extensive
criminal record was libel-proof and couldn’t hold a newspaper liable for misstating
new criminal charges. Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512 (Tex.
App.—Tyler 1987, writ dism’d).
Statements that provide fair comment on matters of public interest, report on
official proceedings, or impartially report on allegations made by third parties on
issues of public interest also receive protection under Texas law.
8. Statute of Limitation.
The statute of limitations for defamation in Texas is one (1) year. See Tex. Civ. Prac.
Code § 16.002(a). This means that if a defamation claim is not brought within a
year of initial publication it is barred.
In addition, only one (1) claim may arise for each publication. For example, a
plaintiff allegedly libeled in a book has one defamation claim based on the publication
of that book, regardless of how many copies were sold. Recently the 5th Circuit
affirmed that this rule, known as the “single publication rule,” applies to internet
publication as well. A defamation suit applying Texas law must be brought within
one year of the first time the content is published on the internet. See Nationwide
Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007) (rejecting
Nationwide’s contention that when content is published on the internet a new
publication occurs each time the story is accessed).
Reviewed by Adam M. Swartz., of The Swartz Law Firm, PLLC. He can be reached at
[email protected] Commentary expresses only the view of the author and does not
necessarily reflect the views or opinions of THE SWARTZ LAW FIRM. The information provided
herein is not intended to be legal advice.
Page 30
EMINENT DOMAIN
Eminent Domain
Both the U.S. Constitution and the Texas Constitution permit the government to condemn
property for public use through the power of eminent domain. U.S. Const. amend. V; Tex.
Const. art. 1, § 17. The Texas Constitution grants the right of eminent domain to the
legislature, and the legislature may delegate its power to non-governmental entities so long
as the exercise of the power is for a public use. Mercier v. MidTexas Pipeline Co., 28 S.W.3d
712, 716–17 (Tex. App.—Corpus Christi 2000, no pet.) overruled on other grounds by
Hubanak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004). Public use in
Texas does not include a taking of property “for transfer to a private entity for the primary
purpose of economic development or enhancement of tax revenues.” Tex. Const. art. I,
§17(b). It is unconstitutional, however, for an entity with the power of eminent domain to
condemn property without providing due process and just or adequate compensation to the
person whose property is taken. U.S. Const. amend. V; Tex. Const. art. 1, § 17. In a
recently passed statue, all private entities must register with the comptroller with a
declaration of the source of their power, the limits on that power, and whether the power
was used in the preceding year. Tex. Gov’t Code §2206.101.
Takings of property may be direct or indirect. Examples of a direct taking include situations
where the government acquires private property to build a road or a school or where a
utility company builds an electrical transmission line. An indirect taking, on the other hand,
involves government activity that impairs access to or use of private property, such as
constructing a street barricade or engaging in construction activity that creates flooding on
private property.
Where property is directly taken for a public use, there is a statutory procedure in Texas to
formally affect the taking. See Tex. Prop. Code Ann. §§ 21.001-.065 (West 2004). The
condemning authority must file a lawsuit in the appropriate court and have a hearing as to
the value of the property before three appointed property owners, referred to as a “special
commissioners,” in the county where the property is located. The purpose of the hearing is
to determine what the condemning authority should have to pay for the property, not to
determine whether the property can be taken. When the special commissioners have come
to a decision on market value, this decision can be appealed through the courts. However,
the government can immediately take possession of the property by paying the amount of
damages and costs awarded by the special commissioners to the property owner or
depositing that sum with the court. Id. § 21.021.
Indirect takings are often referred to as “inverse condemnation.” Unlike direct
condemnation cases, inverse condemnation cases are typically brought by a property owner
who claims that an entity has already taken their property without providing just
compensation. In an inverse condemnation case, the alleged taking may come in any
number of different forms:
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EMINENT DOMAIN
(1) Physically invading or damaging property. Tarrant Reg’l Water Dist. v. Gragg, 151
S.W.3d 546 (Tex. 2004) (flooding caused by construction of reservoir and dam); Tenngasco
Gas Gathering Co. v. Fisher, 653 S.W.2d 469 (Tex. App. — Corpus Christi 1983, writ ref’d
n.r.e.) (pipeline crossing property of private landowner);
(2) Interfering with access to property. State of Texas v. Whataburger, Inc., 60 S.W.3d 256
(Tex. App. — Houston [14th Dist.] 2001, no pet.) (highway expansion requiring re-building
of a restaurant in a different location or tract); Lethu Inc. v. City of Houston, 23 S.W.3d
482 (Tex. App. — Houston [1st Dist.] 2000, pet. denied) (construction of a street
barricade);
(3) Materially and substantially impairing use and enjoyment of property, resulting in loss
of market value. City of Austin v. Travis County Landfill Co., 73 S.W.3d 234 (Tex. 2002)
(increased over-flights that make surface property no longer useable for its intended
purpose); Allen v. City of Texas City, 775 S.W.2d 863 (Tex. App. — Houston [1st Dist.]
1989, writ denied) (susceptibility to flooding due to government construction). But see Felts
v. Harris County, 915 S.W.2d 482 (Tex. 1996) (stating that the constitution does not
“require compensation for every decrease in market value attributed to a government
activity.”);
(4) Enforcing certain zoning restrictions. Lucas v. S. Carolina Coastal Counsel, 505 U.S.
1003 (1992) (refusal to permit property owner to develop a beach front lot in a residential
subdivision); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
(regulation requiring landlord to permit cable television companies to install cable facilities
on its property); and
(5) Conditioning development approval on the developer providing certain public benefits.
Dolan v. City of Tigard, 512 U.S. 374 (1994) (dedication of real property as a condition to
development approval); Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d
620 (Tex. 2004) (requiring developer to repave adjacent street as condition to development
approval).
Some of the more interesting cases on inverse condemnation deal with regulatory takings
and development exactions.
A regulatory taking occurs when the government exercises its zoning or approval powers
to restrict the use of private property improperly. Of course, the government has the right
to pass and enforce rules and regulations concerning property use. To constitute a taking,
the government action generally must deny all economically beneficial or productive use of
the property or must not substantially advance a legitimate government interest. See
Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004); Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922 (Tex. 1998). The courts may also look at the government
action to determine whether it represents a change in longstanding rules governing the
property and whether it is directed primarily to the individual property owner or the public
as a whole. See Sheffield Dev. Co., 140 S.W.2d at 678 (discussing city-wide moratorium on
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EMINENT DOMAIN
development); Mayhew, 964 S.W.2d at 937 (discussing issue of “distinct investment-backed
expectations” of property owners based on longstanding use).
Development exactions may be another form of compensable taking. These occur when the
government conditions approval of a proposed development upon the developer providing
some benefit to the government. It is appropriate, of course, for the government to require
payment or other benefits to offset impacts created by the development. The government’s
action constitutes an impermissible taking, however, when (1) there is not an “essential
nexus” between the government action and a “legitimate state interest” or (2) there is no
“rough proportionality” between the government’s action and the nature and extent of the
public impact from the proposed land use. Dolan, 512 U.S. at 374; Town of Flower Mound,
135 S.W.3d at 620.
In advance of the exercise of the power of eminent domain, the parties attempt to negotiate
an agreed upon price for the property being taken. In 2011, the Texas legislature adopted
two different methods under which those negotiations are to be conducted. Either the
authority must provide with its offer all appraisals of the land obtained within the last ten
years relating to the determination of the offer, Tex. Prop. Code §21.0111, or the authority
must, among other things, obtain a certified appraisal prior to making a final offer that
equals or exceeds that appraisal. Tex. Prop. Code §21.0113. The land owner is also
required to share any appraisals with the condemning authority.
Reviewed by Thomas R. Jackson, a partner at Jones Day. He can be reached at
[email protected]
Page 33
ENVIRONMENTAL LAW
Environmental Law
Scope
“Environmental” and “natural resources” law are distinct, but related subjects. In general,
environmental law deals with protection of human health and environmental quality through
pollution prevention, control, and cleanup, while natural resources law concerns the
management and use of our land, air, water, and wildlife as resources. Environmental law
issues come up in a variety of situations including litigation, property transactions, lobbying,
policy development, and advising clients as to how to comply with a vast and complicated
body of law. The environment is regulated at both the state and federal level. In Texas, the
Texas Commission for Environmental Quality oversees the state environmental laws. The
Environmental Protection Agency handles those duties at the federal level.
Major Federal Environmental Laws
National Environmental Policy Act (NEPA), 42 U.S.C. §4321 et seq. Bedrock law declaring
policy and requiring detailed environmental review of major federal actions.
Clean Air Act, 42 U.S.C. §7401 et seq. Complex, overlapping: Administered through federal
and approved state clean air implementation plans, permits, engine standards, acid rain,
ozone layer protection, greenhouse gas, more.
Clean Water Act (CWA) 33 U.S.C. §1251 et seq. Administered through federal and approved
programs, focuses on protecting water quality. Establishes a permit system for “point
sources” discharging to regulated waters; water quality standards for bodies of water, and
protection of wetland resources.
Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §11001 et seq.
Requirements for federal, state and local government emergency planning for releases of
hazardous and toxic chemicals; “Community Right-to-Know" reporting by industry to
increase public knowledge and access to information on chemicals at individual facilities,
their uses, and releases into the environment.
Oil Pollution Act, 33 U.S.C. §2701 et seq. Prevention of and regulatory response to
catastrophic oil spills. Establishes a trust fund to clean up spills when the responsible party
cannot do so. Requires large release response planning by regulated oil storage facilities
and vessels, and development of Area Contingency Plans for regional-scale oil spill
responses.
Safe Drinking Water Act, 42 U.S.C. §300f et seq. Protection of drinking water quality and
resources, establishment of health-related primary standards and nuisance-related
secondary standards, regulation of underground injection of fluids.
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ENVIRONMENTAL LAW
Toxic Substances Control Act (TSCA) 15 U.S.C. §2601 et seq. Tracking, screening, and
potentially banning chemicals such as PCBs, radon, asbestos and lead-based paint. Certain
substances are generally excluded from the statute, such as food, drugs, cosmetics and
pesticides.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq. Federal
control of pesticide distribution, registration, labeling, sale, and use.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. §9601 et seq. Provides for the cleanup of abandoned sites contaminated by
hazardous substances (other than petroleum) and establishes a framework of liability
among responsible parties for cleanup costs. Cleanups are conducted and funded wherever
possible by responsible parties either under a regulatory order or voluntarily, or by the
Environmental Protection Agency (EPA) using the federal “Superfund”. Related concept:
“brownfields”: providing incentives for redevelopment of industrial/commercial property
affected by contamination.
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6901 et seq. Administered
by federal and approved state programs, focuses on “cradle to grave” hazardous waste
management: generation, storage, transportation, treatment, and disposal; cleanup and
corrective action for releases from permitted facilities; non-hazardous solid waste disposal
facility requirements; comprehensive regulation of underground petroleum storage tanks.
For Additional Information
http://www.epa.gov/epahome/laws.htm
http://www.law.cornell.edu/topics/environmental.html
http://www.tceq.state.tx.us/
The EPA has published detailed regulations governing the implementation of the federal
laws, which commonly are implemented through approved state programs. Many tribal and
municipal governments also have environmental laws and regulations.
Major federal natural resource laws: NEPA, Endangered Species Act, Magnuson-Stevens
Fishery Conservation and Management Act, General Mining Law of 1872, Wilderness Act,
Wild and Scenic Rivers Act, Coastal Zone Management Act, Marine Mammal Protection Act,
Federal Land Policy and Management Act.
Role in the Legal System
These laws have been integral to the development of modern administrative law (law
dealing with the actions of government agencies). Also, environmental decisions commonly
involve constitutional questions including the proper role of the federal government and
when government action constitutes a “taking” of private property.
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ENVIRONMENTAL LAW
History
Modern environmental law began in 1970 with NEPA, the CAA, and the creation of the
federal EPA. Previously, some environmental matters (like factory pollution affecting
neighboring properties) were addressed under state tort law.
Natural resources law is older, featuring doctrines developed in the 19th and early 20th
centuries concerning mining, water rights, timber, and wildlife. Likewise, the natural
resource conservation movement began in the late 19th century, well before pollution
became a major concern in the 1960s.
Since the 1970s, environmental law has continued to increase in scope and complexity.
Most of our major environmental laws were passed from 1970-1990; since then U.S. legal
development has come through new federal regulations, through court actions, and at the
state level. During this period, American environmental laws have been a model for much
of the rest of the world, and, notwithstanding much controversy, have clearly led to some
major improvements in the environment.
Enforcement
Government is the primary enforcer of these laws. Violators may face civil and even criminal
penalties (e.g., officers of a company can go to jail for a company's violation of
environmental laws). Many statutes also provide for direct enforcement by private citizen
suits.
Reviewed by Thomas R. Jackson, a partner at Jones Day. He can be reached at
[email protected]
Page 36
FAMILY LAW
Family Law
Family law refers to the area of law that deals with the legal relationships between family
members. Dallas County has specialized courts that exclusively handle family law matters
at the George Allen Sr. Courts Building, 600 Commerce Street, Dallas, Texas 75202. The
Family Court Services department assists the family courts with child custody issues, often
through the use of social studies.
Divorce is the most common family law issue. A divorce divides the property between two
spouses and concludes a marriage. The Final Decree of Divorce is the court order that
formally ends a marriage when it is signed by the judge of the court. Most divorces end by
an agreement between the parties however, the work it takes to come to that agreement
varies widely. In Texas, the minimum length of time before a divorce can be granted is 60
days from the date the Original Petition for Divorce is filed with the court. Divorces can
also take years to resolve. A judge decides most divorce issues, but Texas is one of only a
few states that allow a jury to decide some issues. Less than one percent of all divorce
cases are resolved by a jury trial.
Texas is a community property and no-fault jurisdiction. Community property is
property that is equally owned by the spouses and will be divided by the courts using a
“just and right” standard (which is not necessarily 50/50 in Texas). In general, all income
that either party earns during the marriage is considered community property, regardless
of the source of the earnings. In general, items owned by the individual spouse prior to the
marriage, gifts, and inheritances received by the individual spouse is that spouse’s
separate property; but, the rules for dividing community property versus separate
property are extremely complex and there are many exceptions that affect the final
property distribution.
“No fault” means that neither party has to prove that the other party is at fault and the
court can grant the divorce for the reason of “insupportability”. Child custody (child
possession) is always a part of every divorce case if the parties have minor children or
disabled children. Child custody suits also arise outside the context of a divorce, and those
are called “Suits Affecting the Parent-Child Relationship” a.k.a. “SAPCR”. The courts
use the “best interest of the child” standard to determine (a) when each parent will have
possession of the children, and (b) the rights, duties and responsibilities that each parent
has for the children. The most common child possession orders are the Texas Standard
Possession Order or the Extended Standard Possession Order. Parental rights can also be
completely terminated.
Child support amounts in Texas are determined based on certain charted percentage
amounts based on the number of children that are part of the SAPCR, the number of other
children that the parents have who are not part of the SAPCR (such as from other
relationships), and the income of the paying parent. Generally only the paying parent’s
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FAMILY LAW
income is considered to determine the child support amount, but as with almost every area
of family law, there are complicated exceptions.
The Office of the Attorney General (OAG) provides some assistance regarding periodic
child support amount reviews and child support collection. In order to track the payment
history, parents are generally required to pay their child support to the OAG who then
distributes the amount to the other parent.
Enforcement of family court orders is available civilly or in some instances via contempt
that can result in jail time for a person who violates a family court order. Interstate issues
arise when parents and children reside in different states or move from state-to-state.
Other states have different rules and many family issues are determined by state law, not
federal law. Child support enforcement has been strengthened between states in recent
years via the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that
applies when family law issues cross state lines. The family law courts can deal with
emergency family law issues at virtually any time. Protective Orders and Restraining
Orders are the most common urgent issues. All cases begin with the filing of an Original
Petition (a document requesting action from the court). Many cases begin with a
“Temporary Order Hearing” when the judge determines what “Temporary Orders” the
court requires during the case until the case ends with final orders. Temporary orders
usually address child custody, child support, which spouse lives in the marital residence,
and who pays which bills while the divorce is pending. In Dallas County, the moment a
family law case is filed, the parties must follow the automatic “Standing Orders” to protect
the rights of the parties, their property, and their children. There is a popularly suspected
bias against father’s rights, but under Texas law, the law does not favor one parent over
the other due to gender.
Same-sex marriage rights is the most evolving issue in Texas law. The Supreme Court of
the United States ruled that same-sex marriage rights apply in Texas.
Adults and children may change their names in the family court. Parents or legal
guardians must generally file the name change for minor children.
“Common-law marriage” previously existed in Texas in a different form from what it is
today. Earlier in Texas history, there were circumstances where a court would consider a
couple to be married, even though they did not have a marriage license or ceremony. Texas
now calls this “Informal Marriage”, which simply refers to the way a couple became
married, which is equally as valid of a marriage as a ceremonial marriage and would require
a formal divorce to end.
There are 3 basic elements of informal marriage: (1) the couple cohabits in the State of
Texas for any length of time while (2) the two people agree to be presently married and (3)
the two people hold themselves out to others as being married. The couple can file a
declaration of the informal marriage in the county they live in to make the marriage
known to others. This is now written into the Family Code so the term “common-law” is not
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FAMILY LAW
technically accurate anymore. Guardianships and probate are closely related to family
law, but are handled in the probate court. Guardianships refer to a group of rights and
responsibilities that one person (the guardian) takes for the benefit of another person (the
ward). A guardian for the ward’s property is called the guardian of the estate. A guardian
for the ward’s physical well-being is called a guardian of the person. Guardianships are
commonly obtained when someone is a minor or is incapacitated.
Estate planning refers to the process of creating documents that prepare for a person’s
health and financial issues if the person becomes incapacitated or dies. Probate is the
process that a court uses to determine who obtains a person’s property after they die.
Proper estate planning uses devices and techniques to make the probate process easier
and more private. A person’s will is a legal estate planning device that instructs the probate
court who should get the person’s property after the person dies.
A trust is a legal device that allows a person called the trustee (trusted person) to hold
some property for the benefit of another person, called the beneficiary. The trustee follows
the rules of the written trust document and the trustee is subject to certain duties and
restrictions. Trusts can provide many tax benefits, privacy protections and immediate ease
of administration.
Other estate planning devices are financial powers of attorney that give a trusted person
the power to make financial transactions for another person; and medical powers of
attorney that give a trusted person the power to make medical decisions for another
person.
Written by Dana C. Palmer, Esq. founder of the Dana Palmer Law Group, P.L.L.C., a family law and
estate planning law firm in Dallas, Texas. The information provided is for Informational purposes only
and does not provide legal advice. Mr. Palmer can be reached at [email protected]
Page 39
THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act
Enacted in 1966, the Freedom of Information Act (FOIA) is a federal law that establishes
the public’s right to obtain information from federal government agencies. The FOIA is
codified at 5 U.S.C. § 552. The FOIA establishes a presumption that records in the
possession of agencies and departments of the Executive Branch of the U. S. Government
are accessible to the people. The U.S. Supreme Court has held that the purpose of FOIA is
to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to
check against corruption and to hold the governors accountable to the governed.” NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
Any person can file a FOIA request, including U.S. citizens, foreign nationals, organizations,
associations, and universities. The FOIA was amended in 1996 to allow for greater access
to electronic information. The FOIA was further amended in 2007 to define a “representative
of the news media” as “any person or entity that gathers information of potential interest
to a segment of the public, uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience.” 45 C.F.R. 1602.2(h). The 2007
amendments also called for each affected agency to designate, by December 31, 2008, a
FOIA Public Liaison to “assist in the resolution of any disputes.”
The FOIA gives any person the right to request access to records of the Executive Branch
of the United States Government. The records requested must be disclosed unless they are
protected by one or more of the exempt categories of information found in the FOIA (see
section below, Information Exempted from Required Disclosure). However, the FOIA does
not require agencies to create records in response to a request, answer written questions,
or analyze data.
Retroactive classification is now permitted as a result of Executive Order 13526, signed into
law in December 2009. An otherwise permissible request may now be denied if the
government determines that the requested information should have been classified under
the criteria listed in the prior paragraph. This Executive Order also sets timelines for
automatic declassification of certain non-sensitive information.
Notwithstanding the above protections, the FOIA requires federal agencies to provide the
fullest possible disclosure of information to the public. Administrative and judicial remedies
are available to those persons denied access to records.
In March 2011, the U.S. Department of Justice launched www.FOIA.gov, a website designed
to be a public resource for government-wide FOIA information and data. The website
contains data on FOIA compliance by agency (number of requests received, how they were
handled, processing times, backlogs, and fees), information on how FOIA requests work,
and contact information for all government agencies.
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THE FREEDOM OF INFORMATION ACT
Where to Send FOIA Requests
The FOIA applies only to Executive Branch departments, agencies, and offices; federal
regulatory agencies; and federal corporations. Congress, the federal courts, and parts of
the Executive Office of the President that function solely to advise and assist the President,
are not subject to FOIA. Records obtainable under the FOIA include all “agency records”
that were created or obtained by a federal agency and are, at the time the request is filed,
in that agency’s possession and control. Agency records include print documents,
photographs, videos, maps, e-mail, and electronic records. The FOIA requires federal
agencies to maintain information explaining their internal procedures for making a FOIA
request, including a handbook, reference guide, indexes, and descriptions of information
locator systems. Most federal agencies have websites that include links dedicated to FOIA.
You should first research the exact method by which the agency accepts FOIA requests.
Many agencies now accept FOIA requests electronically, through e-mail, or a web form.
How to Write the FOIA Request
A person seeking records from a federal agency should first try to obtain the documents
through informal means. Contact the FOIA officer at the agency and specify the records
sought by name, number, date, and description, if possible. If the informal request is
denied, the next step is to send the FOIA officer a written request for the records. The FOIA
request must meet the following criteria before the agency will take action:
•
•
•
•
•
•
•
be in writing and signed by the person making the request.
state that the request is being made pursuant to the FOIA.
reasonably describe the records being requested.
state the category of the requester for fee purposes (e.g., commercial, media,
educational).
contain a statement that the requestor agrees to pay all reasonable fees that might
be incurred.
state whether a copy of the records is desired, or inspection of records only.
be addressed to the agency that maintains the requested records.
Go to
www.FOIA.gov for a complete list of FOIA contacts by agency.
The standard response time established by the FOIA is 20 business days; however, variables
like the complexity of the request and number of pending requests may delay an agency’s
response time.
Information Exceptions from Required Disclosure
National Security Information—Exemption (b)(1) - Protects from disclosure national
security information concerning the national defense or foreign policy, provided that it is
properly classified.
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THE FREEDOM OF INFORMATION ACT
Internal Personnel Rules And Practices—Exemption (b)(2) - Protects from disclosure records
that are “related solely to the internal personnel rules and practices of an agency.”
Information Exempt Under Other Laws—Exemption (b)(3) - Protects from disclosure
information protected by other federal statutes.
Confidential Business Information—Exemption (b)(4) - Protects from disclosure privileged
or confidential trade secrets and commercial information obtained from a person.
Inter Or Intra Agency Communication—Exemption (b)(5) - This exemption incorporates civil
discovery privileges and documents related to the deliberative process, which allows frank
and open discussion of policies within the government.
Personal Privacy—Exemption (b)(6) - Protects from disclosure all information about
individuals in “personnel and medical files and similar files” when the disclosure of such
information “would constitute a clearly unwarranted invasion of personal privacy.”
Law Enforcement Records—Exemption (b)(7) - Exemption 7 of the FOIA, as amended,
protects from disclosure records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or information:
a) could reasonably be expected to interfere with enforcement proceedings;
b) would deprive a person of a right to a fair trial or an impartial adjudication;
c) could reasonably be expected to constitute an unwarranted invasion of personal
privacy; and,
d) could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of a record or
information compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source.
Records of Financial Institutions —Exemption (b)(8) - Protects from disclosure information
that concerns the supervision of financial institutions.
Geographical and Geophysical Information Concerning Wells—Exemption (b)(9) - Protects
from disclosure geological information on wells.
Fee Categories
Under the FOIA, solely for fee purposes, an agency is required to determine the projected
use of the records sought by the FOIA request, and the type of requester asking for the
documents. As the FOIA was intended to promote the public's access to information, news
media organizations and educational institutions are excused from certain fees.
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THE FREEDOM OF INFORMATION ACT
To demonstrate that you belong in an educational, news media, or non-commercial fee
category, you must provide information about the intended professional, scholarly, or
journalistic uses of the information you receive. List any relevant previous or pending
publications, including books, articles, dissertations, publication contracts or letters of
intent or interest, or similar information that shows your ability to disseminate the
information you receive from the agency. State that the materials are not requested solely
for a private, profit-making commercial purpose. You should request that, to the extent any
fees are assessable, the agency notify you if those fees will exceed an amount you specify.
For a court decision interpreting the fee provisions of the FOIA, see National Security
Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989).
Actual search, review, and duplication fees vary widely by agency. Agencies cannot require
a requester to make an advance payment unless the agency estimates that the fee is likely
to exceed $250 or the requester previously failed to pay proper fees.
Fee Waivers
Under the FOIA, it is possible to have all fees, including copying, waived by the agency if
the material requested “is likely to contribute significantly to public understanding of the
operations or activities of government and is not primarily in the commercial interest of the
requester.” If your request fits this statutory criterion, you should make your case for a fee
waiver in your request letter as forcefully as possible. Be sure to describe the scholarly,
historical, or current public interest in the material requested. Also identify specific
operations or activities of government to which the request relates, why the information
will contribute to an understanding of those activities and operations, why the public in
general would be interested, and why the disclosure would be significant.
Reviewed by Jeffrey M. Harvey and Melissa Gray, Klemchuk LLP. Mr. Harvey can be reached at
[email protected]
Page 43
GAG ORDERS
Gag Orders
Gag orders, often called “protective orders,” are orders entered by courts restricting the
dissemination of information relating to certain proceedings or trials in criminal or civil
cases. These orders can affect both the media’s access to information and/or the media’s
ability to report on such information. Gag orders can be considered a prior restraint on
speech and may be invalid unless certain constitutional protections are in place.
In Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 570 (1976), the United States Supreme
Court examined and overturned a gag order that prohibited members of the press from
reporting on certain subjects relating to a murder trial. The Court looked at four factors in
analyzing the gag order: 1) the nature and extent of pretrial news coverage; 2) whether
alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity
(such other measures included change of venue, postponement of trial, use of searching
questions of prospective jurors to screen out those with fixed opinion as to guilt and use of
emphatic and clear jury instructions regarding consideration of only evidence presented in
open court); 3) how effectively the gag order would prevent the threatened danger; and 4)
the precise terms of the gag order itself. Id. at 562-70. The Court noted several measures
that might be used to “blunt the impact of pretrial publicity,” including postponing the trial,
changing the trial venue, screening prospective jurors to eliminate those with fixed opinions
as to guilt or innocence, sequestering the jurors, and instructing the jurors on their sworn
duty to decide the issues only on evidence presented in court. Id. At 563-64. Ultimately,
the Court found that the gag order at issue was an unconstitutional prior restraint. Id.at
570.
In voiding an order that restrained counsel, clients and witnesses from disseminating
information relating to certain civil proceedings, the Texas Supreme Court applied a slightly
different test from the one set forth in Nebraska Press. See Davenport v. Garcia, 834 S.W.2d
4, 10-11 (1992). Specifically, the Texas Supreme Court announced the following test:
[A] gag order in civil judicial proceedings will withstand constitutional scrutiny only
where there are specific findings supported by evidence that (1) an imminent and
irreparable harm to the judicial process will deprive litigants of a just resolution of
their dispute, and (2) the judicial action represents the least restrictive means to
prevent that harm.
Id.
While the Nebraska Press test is based on the First Amendment of the United States
Constitution in a criminal setting, the Davenport test is based on Article I, Section 8 of the
Texas Constitution which provides broader free speech protections than the U.S.
Constitution. Davenport. Id. at 8-9. The first portion of the Davenport test takes its genesis
from two early Texas cases in which the Texas Court of Criminal Appeals voided orders
prohibiting the reporting of trial testimony— specifically Ex parte Foster, 71 S.W. 593, 594-
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GAG ORDERS
96 (Tex. Crim. 1903) (voiding trial court’s order prohibiting the publication of testimony of
witnesses in a murder case) and Ex parte McCormick, 88 S.W.2d 104, 104-07 (Tex. Crim.
1935) (voiding order prohibiting newspaper reporters from publishing trial testimony until
after the subsequent trial of the companion cases of co-defendants). Id. Shortly after
deciding Davenport, the Texas Supreme Court again applied its two-prong test to void a
protective order that prohibited a newspaper from publishing information already disclosed
in open court and made part of the public record. See Star-Telegram, Inc. v. Walker, 834
S.W.2d 54, 55-58 (1992).
Testimony as to “fear, apprehension and possibilities” is not enough to support a gag order.
The record must contain evidence of an actual threat to the judicial process. Markel v. World
Flight, Inc., 938 S.W.2d 74, 79-80 (Tex. App. –San Antonio 1996).
News organizations may challenge a gag order by intervening in the lawsuit. See, e.g., In
re Hearst Newspapers Partnership, L.P., 241 S.W.3d 190,192 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) In Hearst, news organizations intervened in a lawsuit to challenge a
trial court order that barred discharged jurors from discussing what their votes would have
been had the case not settled. Id. The appellate court declared the gag order
unconstitutional under the Texas Constitution. Id. at 196. Conversely, an appellate court
upheld a gag order challenged by a newspaper in In re Houston Chronicle Publishing Co.,.
63 S.W.3d 103,110 (Tex. App.—Houston [14th Dist.] 2001, no pet.). The trial court barred
attorneys, the defendant, and certain witnesses from speaking to the media pending the
defendant’s prosecution. Id. at 105. The appellate court recognized the newspaper’s right
to challenge the order, but ultimately upheld the order. The appellate court held that the
order was reasonable because the trial court had independently determined that the media
coverage was interfering with Andrea Yates’ right to a fair trial, and the restraint preserved
that right. See id. at 107-10.
Orders restricting the ability of the lawyers in the case to comment are more common since
the United States Supreme Court has often criticized judges for failure to control out of
court statements by lawyers. Some courts have specifically precluded comments on
evidence to be introduced, witnesses to be called, and the merits of either side’s case. A
complete ban on lawyer comments, however, would likely go too far. Limitations on the
attorney speech should be no broader than necessary to protect the integrity of the judicial
process. United States v. Salameh, 992 F.2d 445, 447 (2nd Cir. 1993).
While there is no general prohibition against them, gag orders remain generally disfavored
by courts. A media representative who is faced with a gag order should seek the advice of
counsel as to the best way to proceed in light of such order. Additionally, at least one federal
appellate court outside of Texas has upheld a trial judge’s finding a journalist in contempt
for refusing to reveal the source of information that was obtained in violation of a gag order.
See In Re Special Proceedings, 373 F.3d 37, 47 (1st Cir. 2004).
Reviewed by Thomas R. Jackson, a partner at Jones Day. He can be reached at [email protected]
Page 45
HEALTH LAW
Health Law
An Overview of Health Law Issues Impacting Providers
The American healthcare system is complex and highly regulated by state and federal laws
and regulations. Health law covers a variety of topics including insurance issues, employee
benefits matters and healthcare provider compliance.
This information is designed to summarize the legal issues pertaining to healthcare
providers. For example, depending upon the services provided, the provider may have to
comply with various licensure requirements (e.g., physician licensure, pharmacy licensure,
facility licensure, and/or clinical laboratory requirements, etc.).
If the healthcare provider accepts Medicare, Medicaid or reimbursement from any
government payor, then the provider will also need to ensure that its compensation
arrangements and contractual matters comply with various federal regulatory laws. Such
as, the Anti-Kickback Statute, which is a criminal prohibition against payments in any form
made to induce or reward the referral or generation of federal healthcare program business.
The Stark Law prohibits referrals by physicians, who have a financial relationship with an
entity (for the furnishing of designated health services) for which payment otherwise may
be made under Medicare, unless an exception applies. (Designated health services include
the following: (i) clinical laboratory services; (ii) physical therapy, occupational therapy,
and speech-language pathology services; (iii) radiology and certain other imaging services;
(iv) radiation therapy services and supplies; (v) durable medical equipment and supplies;
(vi) parenteral and enteral nutrients, equipment, and supplies; (vii) prosthetics, orthotics,
and prosthetic devices and supplies; (viii) home health services; (ix) outpatient prescription
drugs; and (x) inpatient and outpatient hospital services.) Depending upon the structure
or type of provider, these laws may or may not be applicable.
Various states, including Texas, have anti-solicitation or anti-referral laws that pertain to
payments made to generate healthcare services reimbursed by not only a government
payor, but also by private insurance or paid for out of pocket. Also, from a private insurance
perspective, the provider will need to negotiate, and comply with the terms of, various
managed care contracts.
In addition, there are state law concerns such as the corporate practice of medicine doctrine
and fee splitting laws. The fee splitting laws prohibit payment by or to a physician for the
referral of a patient. The corporate practice of medicine prohibits, in certain states such as
Texas, a lay corporation from employing a physician or controlling a physician's practice
of medicine. Depending upon the circumstances, in order to avoid a violation of the
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HEALTH LAW
corporate practice of medicine, the corporation may, pursuant to an independent contractor
agreement, contract with a physician to provide the applicable services.
Healthcare providers are also subject to federal and state privacy and security laws and
regulations. The federal Health Insurance Portability and Accountability Act of 1996 Privacy
Rule and Security Rule, and Health Information Technology for Economic and Clinical Health
Act, as modified by the Final Omnibus Rule effective as of March 26, 2013 (collectively
referred to as HIPAA) contain specific requirements on how health information should be
safeguarded and protected by healthcare providers, health plans, and healthcare
clearinghouses, which are referred to as “covered entities”. Depending upon how the
provider is structured, it will most likely be subject to HIPAA as a covered entity healthcare
provider. In addition, a provider’s health plan for its employees may be subject to HIPAA.
Written by Cheryl Camin Murray, sharehold at Winstead PC. She can be reached at
[email protected]
Page 47
IMMIGRATION LAW
Immigration Law
A highly controversial and politically charged topic, immigration law is extremely complex
and considered dysfunctional by many lawyers who work in this area daily. One court aptly
declared, “[I]t would seem that should be a simple issue with a clear answer, but this is
immigration law where the issues are seldom simple and the answers are far from clear."
Alanis-Bustamante v. Reno 201 F.34d 1303 (11th Cir. 2000). Against this setting, here are
a few U.S. immigration law “basics” that members of the media should know.
Law and Order
U.S. immigration is regulated by numerous federal laws and agencies. In addition, many
states have enacted immigration-related laws, which are subject to challenge if they conflict
with federal laws. The Immigration and Nationality Act (INA) is the primary federal
legislation governing immigration into the U.S. The Department of Homeland Security
(DHS) oversees the enforcement of immigration laws through three agencies that are
responsible for different aspects of enforcement and services:

U.S. Citizenship and Immigration Services (USCIS) accepts and adjudicates
applications for visas, permanent residence (“green card’), citizenship, and other
immigration benefits.

U.S. Immigration and Customs Enforcement (ICE) is the policing agency charged
with removal of undocumented immigrants and investigation of employer
compliance with employment eligibility verification requirements.

U.S. Customs and Border Patrol (CBP) patrols the U.S. borders and international
airports to deter illegal entry into the U.S.
In addition, the Department of State manages the applications for U.S. visas in foreign
countries. The Department of Justice’s Office of Special Counsel for Immigration-Related
Unfair Employment Practices (OSC) investigates and prosecutes immigration-related
discrimination claims.
Admission into the U.S.
A foreign national can enter the U.S. legally as a non-immigrant, immigrant, or refugee if
he or she meets the stringent criteria of each category. Non-immigrants are admitted
temporarily into the U.S. for a specific purpose such as tourism, study, diplomacy, or
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IMMIGRATION LAW
temporary employment. When applying for the necessary permission (“visa”) to enter, in
most cases, they prove an intent to return to their home country.
Immigrants, on the other hand, must intend to reside permanently in the U.S., must qualify
for permanent residence (“green card”), and may eventually become citizens. Green cards
may be issued to those who are spouses, children, parents, or siblings of U.S. citizens or
permanent residents. This is called family-based immigration. Immigrants who have needed
job skills and have a job offer from a U.S. employer may receive green cards as well. This
is called employment-based immigration.
Refugees are those outside the U.S. who can prove persecution or a well-founded fear of
persecution in situations of “special humanitarian concern” to the United States. Foreign
nationals who are already in the U.S. in a different status can apply for asylum if they meet
the statutory definition of refugee.
Immigration is often limited by quota as well as restrictive criteria. For example, the
professional worker non-immigrant visa, H-1B, is available to only 65,000 new applicants
per fiscal year. Immigrant visas based upon family relationships or employer sponsorships
are subject to a worldwide cap of 675,000 and a ceiling based upon country of birth. As a
result of these caps, the waiting lists for green cards can be as long as 20 years. Also, there
is an annual limit of refugee admissions, and the allocation of these numbers among refugee
groups are determined at the start of each fiscal year by the President after consultation
with the Congress.
Exclusion and Removal
Even if a foreign national qualifies for non-immigrant, immigrant, or refugee/ aslyee status,
he or she can be found to be ineligible for admission and excluded from the U.S. under
“grounds for inadmissibility” of the INA such as:
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
health-related grounds

criminal history

national security and terrorist concerns

public charge (e.g., indigence)

seeking to work without proper labor certification (proof of needed skills)
IMMIGRATION LAW

illegal entrants and immigration law violations

lacking proper documents

being ineligible for citizenship

previous removal (deportation) from the U.S.
In some cases, discretionary waivers on these grounds are available so that the applicant
can be admitted, e.g. waivers based upon extreme hardship on the U.S. citizen’s spouse.
Aliens may be removed from the United States for a variety of reasons, such as entering
into the country unlawfully, violating or overstaying a visa, or committing a crime. In most
cases, ICE issues a notice to appear before the immigration court in a removal (deportation)
hearing. A removal hearing is an administrative hearing where the alien can defend against
removal and assert any available claims of legal eligibility to remain in the U.S. There is no
right to counsel in this proceeding. A single immigration judge makes the final decision of
removal, which can be appealed through the federal courts. An order of removal requires
the alien to remain outside the U.S. for a minimum of 10 years.
Expedited removal is a controversial provision under which an alien who lacks proper
documentation or has committed fraud or willful misrepresentation of facts may be deported
without a hearing or judicial review, unless the alien indicates a fear of persecution. Rather,
an ICE or CBP agent can detain and remove an alien immediately and without a court order.
Expedited removal is only used in limited circumstances as determined by the DHS.
Reviewed by Sadé Lewis, Oklahoma City University School of Law, J.D. Candidate, 2016, Texas Legal
Society, President. She can be reached at [email protected]
Page 50
LEGAL ISSUES IN NEWSGATHERING
Legal Issues in Newsgathering
Invasion of Privacy
Texas courts recognize three claims relating to the right of privacy: (1) intrusion; (2) public
disclosure of private facts; and (3) misappropriation of a person's name or likeness.
The first is a claim for intrusion, which is defined as: (1) an intentional intrusion, physically
or otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2)
would be highly offensive to a reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512
(Tex. 1993). Two recent cases addressed this tort and clarified that there may be an
invasion of privacy even if there is no physical invasion or eavesdropping involved. In the
first, the plaintiff alleged the defendant hired “bank account search firms” to obtain the
plaintiff’s bank account information for purposes of a garnishment action. Plaintiff also
alleged the defendant hired people to surveil him. The court found this was sufficient to
state a claim for intrusion under Texas law. Bray v. The Cadle Co., Civ. Act. No. 4:09-cv663, 2010 U.S. Dist. LEXIS 109470 at *46-48 (S.D. Tex. Oct. 14, 2010). The second case
involved the plaintiff’s allegations that Delta Airlines hacked into her computer and stole
email messages. The court found these alleged facts could support an intrusion claim. Coal.
for an Airline Passengers’ Bill of Rights v. Delta Airlines, Inc., 693 F. Supp. 2d 667, 675-77
(S.D. Tex. 2010). However, while there need not be a physical invasion, what is invaded
must be something inaccessible to the public. Courts have held that the broadcast of a
person’s residence, for example, is not an invasion of privacy where the broadcast shows
nothing more than what can be seen from a public street. Wehling v. Columbia Broad.
Sys., 721 F.2d 506, 509 (5th Cir, 1983); American Broad. Cos. v. Gill, 6 S.W.3d 19, 28 (Tex.
App.—San Antonio 1999, pet, denied), disapproved on other grounds, Turner v. KTRK
Television, Inc., 38 S.W.3d 103 (Tex. 2000).
The second basis for an invasion of privacy claim is the public disclosure of private facts. A
private facts claim entails (1) the publication of facts concerning a person's private life, (2)
the publication of which would be highly offensive to a reasonable person of ordinary
sensibilities, and (3) the facts publicized are not of legitimate public concern. Indus. Found.
of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). This third requirement,
that the facts not be of legitimate public concern, limits liability under this theory. For
example, In Star-Telegram, Inc. v. Doe, the court held that facts in a newspaper article
which potentially identified a rape victim were of legitimate concern and would not support
a public disclosure of private facts claim. 915 S.W.2d 471, 474 (Tex. 1995). Likewise, once
information is made a matter of public record, the protection accorded freedom of speech
and press by the First Amendment may prohibit an individual from recovering for injuries
caused by further disclosure of and publicity given to such information, at least if the
information is newsworthy. Florida Star v. B.J.F., 491 U.S. 524, (1989).
Finally, misappropriation of a person's name or likeness is the third basis for an invasion of
privacy claim. In order to be actionable, a plaintiff must show: (1) the appropriation of the
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LEGAL ISSUES IN NEWSGATHERING
plaintiff's name or likeness must be for the value associated with it, and not in an incidental
manner or for a newsworthy purpose, (2) the plaintiff can be identified from the publication,
and (3) the defendant benefited from the appropriation. Matthews v. Wozencraft, 15 F.3d
432 (5th Cir. 1994). Some jurisdictions recognize the tort of false light as a fourth basis for
invasion of privacy, however, Texas does not. Cain v. Hearst Corp., 878 S.W.2d 577 (Tex.
1994).
Wiretaps
Federal and state laws provide civil causes of action for the unlawful interception, disclosure,
or use of wire, oral, or electronic communications, as well as criminal sanctions. See 18
U.S.C. § 2511; TEX. CIV. PRAC. & REM. CODE § 123.001, et. seq.; TEX. PENAL CODE §
16.02. Texas is a "one party consent" state, meaning the interception is not unlawful if one
party to the communication consents to the interception, disclosure, or use of the
communication. See TEX. CIV. PRAC. & REM. CODE § 123.001(2); TEX. PENAL CODE §
16.02(c)(4). Some states require the consent of all parties to the communication. Telephone
conversations are just one type of communication that falls within the scope of state and
federal Wiretap laws. With regard to unlawful interceptions by third parties, the media has
a First Amendment right to publish information it lawfully obtains, see Fla. Star v. B.J.F.,
491 U.S. 524 (1989), but the Supreme Court has held that a journalist is protected by the
First Amendment only if the journalist played no role in the interception of the
communication, the journalist did not obtain the communication unlawfully, and the
communication is about a matter of public concern. Bartnicki v. Vopper, 532 U.S. 514
(2001).
"Media Ride-Alongs"
For years, it was common for members of the media to "ride-along" with police while they
conducted search and arrest warrants on private property. This is no longer the case, as
the permissibility of “ride-alongs” has been called into question. In Wilson v. Layne, 526
U.S. 603, 614 (1999), the Supreme Court held that media participation in the execution of
search warrants may constitute a violation of the Fourth Amendment in certain
circumstances. While Wilson established that police act unconstitutionally when they invite
the media into a private home or on private property while executing a search warrant, the
court did not resolve whether the media could be jointly charged with the police, given the
Fourth Amendment’s requirement of state action. Courts have addressed this issue with
varying results. In a recent case in the Southern District of Texas, a federal inmate filed
suit alleging violations of his Fourth Amendment rights when a media crew was allowed to
video a search of his house. Osamor v. Channel 2 News, Civ. Act. No. H-09-2788, 2010 WL
2036013 at *1-2 (S.D. Tex. May 19, 2010). The court rejected the claims for damages
against the news media defendants on the ground that they were not state actors, in
contrast to the agents involved in the search. Id. at *4.
Trespass
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LEGAL ISSUES IN NEWSGATHERING
A person can be civilly and criminally liable for entering private property without the consent
of the owner. See TEX. PENAL CODE § 30.05; Carr v. Mobile Video Tapes, Inc., 893 S.W.2d
613, 623 (Tex.App.—Corpus Christi 1994, no writ). The Penal Code prohibits such entry if
the person had: (1) notice that entry was forbidden, including notice via "No Trespassing"
signs or other means identified in the statute; or (2) failed to depart after receiving notice
to leave. TEX. PENAL CODE § 30.05(a). Liability for civil trespass, however, is not
conditioned on such notice. Rather, courts define civil trespass broadly, namely, as arising
whenever a person “enters upon the property of another without any right, lawful authority,
or express or implied invitation, permission, or license, not in the performance of any duty
to the owner or person in charge or on any business of such person, but merely for his own
purposes, pleasure or convenience, or out of curiosity, and without any enticement,
allurement, inducement, or express or implied assurance of safety from the owner or person
in charge.” Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933-34 (Tex. Civ. App.—
Corpus Christi 1981, writ ref d n.r.e.). Criminal trespass is typically a Class B misdemeanor,
which is punishable by a fine not to exceed $2,000, a jail term not to exceed 180 days, or
both. TEX. PENAL CODE §§ 30.05(d), 12.22. Where consent is obtained a reporter also
should consider whether the person granting access has authority to do so and whether
there are any restrictions on the right of access, such as limiting access to only certain
areas or prohibiting cameras.
Fraud or Deception
Gaining access to information or property by means of false pretenses may give rise to
liability. A highly publicized case that illustrates the risk associated with misrepresenting
oneself involved two ABC investigative reporters who were hired at a Food Lion supermarket
in North Carolina by submitting false names and employment histories. See Food Lion, Inc.
v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999). Food Lion sued ABC and the
reporters for fraud, trespass, and breach of the duty of loyalty owed by employees, among
other claims, and obtained a jury verdict in excess of $5 million. Ultimately, after appeal,
ABC and its reporters were held liable for only $2 in nominal damages. While the case is
generally viewed as a victory for the media, it nevertheless demonstrates why journalists
must proceed with caution when engaging in undercover investigations.
SLAPP Suits
In an attempt to reduce the potentially chilling effect on speech of certain lawsuits, Section
27 of the Texas Civil Practice and Remedies Code allows for parties to file a special motion
to dismiss legal actions that are “based on, relate[d] to, or [are] in response to a party’s
exercise of the right of free speech, right to petition, or right of association.” TEX. CIV.
PRAC. & REM. CODE § 27.003. Under the statute, if the court finds that the suit relates to
the right of free speech, right to petition, or right of association, it must dismiss the action
unless the “the party bringing the legal action establishes by clear and specific evidence a
prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. &
REM. CODE § 27.005. Additionally, upon dismissal of such a claim, the court will award
“court costs, reasonable attorney's fees, and other expenses incurred in defending against
the legal action” as well as “sanctions against the party who brought the legal action.” TEX.
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LEGAL ISSUES IN NEWSGATHERING
CIV. PRAC. & REM. CODE § 27.009. The motion to dismiss must be filed within 60 days of
the date of service of the legal action, but the deadline can be extended on a showing of
good cause. Id. at § 27.003.
Notably, however, the statute does contain certain categorical exclusions. First, it does not
apply to “an enforcement action that is brought in the name of this state or a political
subdivision of this state by the attorney general, a district attorney, a criminal district
attorney, or a county attorney.” TEX. CIV. PRAC. & REM. CODE § 27.010. Second, it does
not apply to “a legal action brought against a person primarily engaged in the business of
selling or leasing goods or services, if the statement or conduct arises out of the sale or
lease of goods, services, or an insurance product or a commercial transaction in which the
intended audience is an actual or potential buyer or customer.” Id. Finally, it does not apply
to “a legal action seeking recovery for bodily injury, wrongful death, or survival or to
statements made regarding that legal action.” Id.
Drone surveillance
Chapter 423 of the Texas Gov’t Code, effective September 1, 2013, addresses the capture
of images using unmanned aircraft. The bulk of the text focuses on non-applicability of the
Act, but § 423.003 makes it a Class C misdemeanor to use an unmanned aircraft to “capture
an image of an individual or privately owned real property in this state with the intent to
conduct surveillance on the individual or property captured in the image.” It is a Class B
misdemeanor under Tex. Gov’t Code § 423.004, subject to various express defenses to
possess, disclose, display, distribute or otherwise use an image captured in violation of §
423.003. “Surveillance” is not defined.
Confidential sources
The Texas Free Flow of Information Act, adopted in Texas in 2009, provides journalists with
a potentially powerful privilege that can shield them from having to divulge their sources.
Tex. Civ. Prac. & Rem. Code § § 22.021 - 22.027; Tex. Code Crim. Proc. Arts 38.11 &
38.111. To successfully invoke this privilege, one must meet two threshold requirements:
(1) one must be a “journalist” as defined by the statute; and (2) one must have obtained
the relevant information in one’s capacity as journalist. While the statute employs a
relatively broad definition of “journalist” -- namely, anyone who “gathers, complies,
prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or
publishes news or information that is disseminated by a news medium or communication
service provider” -- it contains an important limitation; it applies only to those who earn a
“substantial portion” of their “livelihood” from journalism, thus excluding many “bloggers,”
a category of newsgatherers of growing importance. Tex. Civ. Prac. & Rem. Code § 22.021.
Moreover, while the privilege provided by the Texas shield law can be invoked in both civil
and criminal contexts, it is only a “qualified” privilege; it can be overcome by a sufficient
showing of necessity.
Reviewed by Jeffrey M. Harvey and Melissa Gray, Klemchuk LLP. Mr. Harvey can be reached at
[email protected]
Page 54
PROBATE LAW
Probate Law
Do you really need a will? Who is in charge after you die? What does a fight look like in
Probate Court? Probate law covers a variety of topics including wills & estate planning,
guardianships, trusts, and litigation.
The Probate Process
Probate is the act of proving that a Will was signed and executed in accordance with the
legal requirements of the State where it was signed. It is through probate that property is
legally transferred from the estate of a person (the "decedent") to the rightful beneficiary.
Probate identifies and inventories assets, pays off creditors, and distributes assets
according to the terms of the Will. Absent a Will, Texas intestacy laws will control the
portioning and distribution of the various forms of property.
Determining the rightful beneficiaries depends on whether the decedent had a valid Will.
There are two questions a qualified probate attorney should ask:
(1) whether the decedent died with or without a Will. The answer to this question
will let the probate attorney know which process must be followed. Although many
of the documents may be the same, it is a completely different process;
(2) what are the assets of the estate. The answer to this question will let the probate
attorney know whether probate is even necessary.
Receipt of probate is the first step in the legal process of administering the estate of a
deceased person, resolving all claims and distributing the deceased person's property under
a Will. A probate court (surrogate court) decides the legal validity of a testator's (deceased
person's) Will and grants its approval, also known as “granting probate,” to the executor.
The probated Will then becomes a legal instrument that may be enforced by the executor
in the law courts if necessary. A probate also officially appoints the executor (or personal
representative), generally named in the Will, as having legal power to dispose of the
testator's assets in the manner specified in the testator's Will. However, through the probate
process, a will may be contested.
Requirements of a Texas Will
The testator must:
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
Be at least 18 years old, legally married, or serving in the armed forces;

Be of sound mind at the time of executing the Will;

Not be forced or deceived to make the Will;

Have the intention to distribute property upon death;
PROBATE LAW
2 Types of Wills
1. Holographic Will

Written entirely in the handwriting of the person creating it. Typewritten words will
not be considered or added.

Signed and dated by the person writing it.

Can be written on anything. Famous examples include a t-shirt, a bumper, and a
napkin.
2. Formal Will

Typically typed

Signed by the person it is prepared for (“testator”);

Witnessed by 2 credible witnesses above the age of 14 (signatures required);

Testator and witnesses must sign the Will in the presence of each other.

A beneficiary of the formal will cannot be one of the witnesses to it.

Most Wills should now have a self-proving affidavit for Probate purposes later.
Will Contests
There may be instances where one needs to challenge the validity of a Will, because they
believe the testator was unduly influenced to sign the will, or did not sign the Will of his/her
own free will. Another reason to contest a will is if the Testator lacked testamentary
capacity, which means he did not have the mental capacity needed to understand all of the
contents of the will.
Under Texas laws, you only have two (2) years to file a Will contest after the Will has been
admitted to Probate. Will contests are not easy and are often emotionally draining. However,
it may be a person’s only opportunity to secure property that should be theirs.
Estate Planning
Few people enjoy discussing or thinking about their own death. However, having a basic
estate plan is a responsible way to ensure your loved ones are taken care of after you’re
gone and what you worked hard for your whole life is protected.
An estate is an individual’s interest in all property owned at the time of death, whether real
or personal, tangible or intangible. Non-probate assets included in an “estate” include life
insurance policy/annuity/IRA/Keoghs/401K with a properly designated beneficiary, payable
on death bank accounts, joint tenants with right of survivorship accounts or property, and
assets put into a properly funded trust.
In Texas, property is either separate or community property. Absent clear and substantial
evidence to the contrary, any asset acquired during marriage is deemed to be one-half
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PROBATE LAW
owned by the husband and one-half owned by the wife. This distinction would hold true for
same-sex marriages sanctioned or recognized by Texas. Property owned before marriage,
property received by gift, devise, or descent (inheritance), property flowing from previous
separate property (except e.g. new rent from old property), and personal injury lawsuit
damages (except for damages representing earning power) are considered separate
property.
Attorneys prepare estate plans for clients identifying their goals and objectives ranging from
tax planning by minimizing estate/inheritance tax, gift tax and generation skipping transfer
tax, to asset protection by preserving and transferring wealth to their family members.
Attorneys also advise clients on business succession planning and entity formation for
family owned businesses, which may include Family Limited Partnerships and LLC
formation.
Trusts
Many different types of Trusts are available to fit many different situations affecting many
types of property. A Trust is an agreement that one person makes to hold property for the
benefit of another. A Trust allows a person to put conditions on how and when assets are
distributed upon their death (or sometimes during their life…”Living Trust”). It allows one
to reduce estate and gift taxes and distribute assets to beneficiaries without delay or cost
or publicity. It also lends protection from creditors and lawsuits. If a person wants to avoid
any of their assets going through probate (or intestacy), they must “fund the Trust” by
transferring assets into the Trust.
4 Components of a Trust:
1. Someone (known as the trustor or settlor) must create the Trust;
2. A person or entity (“trustee”) must agree to hold money and/or property for the
benefit of someone else;
3. Money, property, and/or assets must be held by the trustee;
4. Someone must benefit from the trust (“beneficiary”).
Trusts, taxes, and estate planning are highly specialized areas related to and overlapping
probate; a person should carefully consider who they have helping them develop a plan for
who is in charge after they die, where and how their property gets distributed, and
defending the rightful beneficiaries’ claim to certain property if the unfortunate
circumstance of a Will Contest arises.
Reviewed by Adam M. Swartz., of The Swartz Law Firm, PLLC. He can be reached at
[email protected] Commentary expresses only the view of the author and does not necessarily
reflect the views or opinions of THE SWARTZ LAW FIRM. The information provided herein is not intended to
be legal advice.
Page 57
REPORTER’S PRIVILEGE
Reporter’s Privilege
In 2009, Texas enacted a media shield law, which protects journalists’ work product and
the confidentiality of their sources in civil and criminal cases. See Texas Free Flow of
Information Act, 81st Leg., R.S., ch. 29, 2009 TEX. SESS. LAW SERV. 29 (codified at TEX. CIV.
PRAC. & REM. CODE §§ 22.021–.027, TEX. CODE CRIM. PROC. arts. 38.11, 38.111)(the “Shield
Law”). The Shield Law’s protections are strongest when information is sought in civil cases,
but applies to all types of official proceedings, including civil trials and hearings, criminal
trials and grand jury proceedings, arbitrations, and executive or legislative proceedings.
The law defines a “journalist” to include all types of professional journalists who gather
information for dissemination by a new medium, including those working in traditional and
online media, but does not protect citizen journalists who do not derive a significant portion
of their livelihood from journalism.
In civil cases, the Shield Law provides a qualified privilege, requiring the party seeking
documents or testimony from a journalist, or the journalist’s news outlet, to show that the
information sought is relevant, the information is essential to the maintenance of a claim,
all reasonable efforts to obtain the evidence from an alternative source have been
exhausted, the reporter received timely notice, the interest in disclosure outweighs the
interest in newsgathering, and the information sought is not speculative or peripheral to
the case. Publication of the privileged information does not waive the privilege.
In criminal cases, a journalist, or the journalist’s news outlet, may be compelled to identify
a confidential source only if the requesting party makes a clear and specific showing that
(1) the journalist observed the source committing a felony; (2) the source has confessed
to committing a felony to the journalist; (3) probable cause exists that the source
committed a felony; or (4) disclosure of the source is reasonably necessary to prevent
reasonably certain death or substantial bodily injury. For all circumstances, the requesting
party must show that it has exhausted reasonable alternative sources for the information.
If the crime at issue is a misdemeanor and there is no likelihood of substantial bodily injury,
the privilege is absolute, and the journalist is not required to identify the confidential source.
Published information is not privileged in a criminal case, and where testimony or
information being sought in a criminal proceeding is unpublished (video outtakes, reporter’s
notes, etc.) and does not relate to a confidential source, the privilege is qualified. The
requesting party must make a clear and specific showing that all reasonable efforts have
been exhausted to obtain the information from alternative sources and that the unpublished
information, document, or item (a) is relevant and material to the proper administration of
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REPORTER’S PRIVILEGE
the official proceeding for which the testimony, production, or disclosure is sought and is
essential to the maintenance of a claim or defense of the person seeking the testimony,
production, or disclosure; or (b) is central to the investigation or prosecution of a criminal
case and based on something other than the assertion of the person requesting the
subpoena, reasonable grounds exist to believe that a crime has occurred.
As of the publication of this guide, there is no federal shield law.
In addition to the Texas Shield Law, there is some support in state and federal case law for
a qualified privilege under the free speech provisions of the United States and Texas
Constitutions.
Reviewed by Jess Davis, of Law360. She can be reached at [email protected]
Page 59
RULE 76A
Rule 76a
An Overview of the Texas Rule on the Sealing of Civil Court Records
Court records in Texas civil suits are presumptively open for public inspection and may not
be sealed without strict compliance with Rule 76a of the Texas Rules of Civil Procedure.
Rule 76a contains stringent standards for the sealing of court records and procedural
safeguards of the public’s right to access those records. Even with the rule there is no
absolute right to access court records immediately. And, the rule does not apply to criminal
or family law cases; however, in criminal law cases, constitutional and common law
principles may require public access to court records.
In 1990, the Texas Supreme Court adopted Rule 76a to curtail the routine sealing of court
records. It followed a series of articles published in 1987 by The Dallas Morning News
reporting on the rampant practice of sealing case files at the Dallas County courthouse.
According to the newspaper series, more than 200 sealing orders were entered over a six
year period in cases ranging from fatally defective products to environmental contamination
to medical malpractice.
By learning about Rule 76a, a journalist will understand his or her right to inspect court
records and will be able to inquire if proper procedure has been followed where records
have been sealed. The rule also authorizes any member of the public, including members
of the news media, to challenge the sealing of court records.
Presumption of Openness and Standard for Sealing
Rule 76a(1) establishes that “court records, as defined in this rule, are presumed to be
open to the general public.” Court records may be sealed only upon a showing of all of the
following:
(a) a specific, serious and substantial interest which clearly outweighs:
1) this presumption of openness;
2) any probable adverse effect that sealing will have upon the general public
health or safety;
(b) no less restrictive means than sealing records will adequately and effectively
protect the specific interest asserted.
Definition of Court Records
Rule 76a(2) defines court records as “all documents of any nature filed in connection with
any matter before any civil court.”
Exceptions from the definition include:
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RULE 76A




“documents filed with the court in camera, solely for the purpose of obtaining
a ruling on the discovery of such documents”
“documents in court files to which access is otherwise restricted by law”
“discovery in cases originally initiated to preserve bona fide trade secrets or
other intangible property rights”
“documents filed in an action originally arising under the Texas Family Code.”
The below documents are considered court records and therefore subject to the
presumption of inspection under Rule 76a(1):
 Unfiled settlement agreements, though not the settlement amount, seeking
to restrict disclosure of information which concern “matters that have a
probable adverse effect upon the general public health or safety, or the
administration of public office, or the operation of government.”

Unfiled discovery “concerning matters that have a probable adverse effect
upon the general public health or safety, or the administration of public office,
or the operation of government,” are considered court records and therefore
subject to the presumption of inspection under Rule 76a(1). Depositions and
witness statements may well fall within the bounds of unfiled discovery if the
other requirements are met.
Notices
Rule 76a(3) requires notice to the public of any motion to seal court records. The party
moving to seal must post the notice at the place where notices for meetings of county
commissioners’ court are posted. The notice must include a brief but specific description of
the nature of the case, the records sought to be sealed and the time and place of the
hearing. Copies of the notice must also be filed with the clerk of the court in which the case
is pending and with the clerk of the Supreme Court of Texas in Austin.
Public Hearing, Intervention and Order
A hearing on a motion to seal court records must be held in open court and may not take
place less than 14 days after public notice is posted. Non-parties (including members of the
news media) have a right to intervene by filing a plea in intervention and paying the
required filing fee. The court may order a temporary sealing order prior to the public
hearing, which may be withdrawn or modified upon a motion by a party or an intervener. A
sealing motion shall be decided by written order open to public inspection. The written order
shall state the specific reasons for the court’s ruling, the specific portions of court records
which are to be sealed, and the time period for which the records are to be sealed.
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RULE 76A
Continuing Jurisdiction and Appeal
Even after a case has concluded by entry of final judgment, the court retains jurisdiction to
enforce, alter or vacate a sealing order. However, the sealing order will not be reconsidered
if the motion is made by a party or intervener who had actual notice of the hearing, unless
he or she can show a changed circumstance materially affecting the order. Once the court
issues a sealing order, the order is severed from the rest of the case and considered a final
appealable judgment.
Conclusion
Rule 76a is an important protection of the public’s right to know. It is particularly useful for
members of the news media. In most cases, a reporter’s right to inspect court files is
protected by the rule, which may be relied upon as authority to do so when requesting files
from court personnel. When a reporter is refused access to court records, a reporter should
request to inspect an order sealing the records and attempt to determine if the procedures
of Rule 76a were met in sealing court records. A member of the news media has the right
to challenge irregular sealing of records and to oppose sealing when a party gives notice of
an effort to seal court records. In Dallas County, court records that have not been sealed
are available online at www.dallascounty.org/public_access.php.
Reviewed by Thomas R. Jackson, a partner at Jones Day. He can be reached at
[email protected]
Page 62
TAX LAW
Tax Law
Taxation in the U.S. is a complex system, involving payments to at least four levels of
government, including the local government (including cities and counties), regional entities
(such as school, utility and transit districts), state governments and the federal
government.
Local and Regional Taxes
In Texas, the primary source of local and regional tax revenue is the property tax. This tax
is levied annually on the value of real estate and business tangible personal property. Many
cities and transit districts also impose sales tax.
State Taxes
The State of Texas imposes sales tax on most retail sales at a rate of 6.25%. Local and
regional governments may impose sales taxes at an additional rate of up to 2% combined.
The state also taxes business entities with the revised Texas franchise tax, which is also
referred to as the “margin tax.” The margin tax incorporates some concepts from the old
franchise tax but is different in several important respects.
As a general matter, any legal entity that does business in Texas and provides some form
of limited liability protection for its owners must pay the margin tax. This includes
corporations, limited partnerships (LPs), limited liability companies (LLCs), limited liability
partnerships (LLPs), banking corporations, savings and loan associations, business
associations, professional associations, and some joint ventures. Even though general
partnerships do not provide limited liability protection for its owners, they are subject to
the margin tax unless only natural persons are partners. Sole proprietorships are not
subject to the margin tax.
The margin tax is levied on an entity’s Texas taxable margin at a rate of 1/2% for taxable
entities primarily engaged in retail or wholesale trade and 1% for all other taxable entities.
For 2013, the Comptroller does not require the filing entity to pay the margin tax if total
revenue is less than $1,030,000 or the tax calculated on the taxable margin is less than
$1,000.
Taxable margin equals total revenue less the greatest of: (i) 30% of revenue; (ii) cost of
goods sold; or (iii) compensation expense. Cost of goods sold includes all direct costs of
acquiring and producing goods along with certain indirect costs. Compensation expense
includes up to $330,000 in wages and compensation paid to employees, officers, owners,
partners, directors, and management companies along with all benefit expenses incurred
by the business. Taxable margin cannot exceed 70% of revenue. A taxable entity will
multiply its total taxable margin by its Texas apportionment factor to calculate its Texas
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TAX LAW
taxable margin, which is subject to a 1/2% or 1% tax. The apportionment factor is a ratio
of Texas gross receipts to total gross receipts from the entire business.
An entity treated as a passive entity under the Texas franchise tax rules will not owe margin
tax. Texas franchise tax defines a passive entity as either a general partnership, limited
partnership, or a trust (other than a business trust) with at least 90% of its federal gross
income arising from a list of sources including interest, dividends, option premiums, cash
settlements, gains from selling securities, capital gains from the sale of real property, and
gains from selling commodities. Additionally, a passive entity can derive no more than 10%
of its federal gross income from an active trade or business. If an entity meets these
requirements, it will be treated as a passive entity. Passive entities registered with the
Secretary of State or with the Comptroller's office are required to file a No Tax Due
Information Report each year.
Federal Taxes
The federal government imposes a number of taxes, including individual income tax,
corporate income tax, payroll taxes, estate and gift tax, and excise taxes.
Individual income tax. Ordinary income (which includes wages and other compensation and
interest income), minus deductions, is taxed based on a graduated scale of income tax
rates, starting at 10% and going up to 39.6%. Long-term capital gains (from the sale of
investments held for more than one year) and qualified dividends are currently taxed at
rates ranging from 0% to 25%.
A new tax on net investment income is effective in 2013 under the tax provisions of the
Affordable Care Act. The tax is imposed at a rate of 3.8% on net investment income for
certain high income individuals and trusts that are taxable at the maximum income tax
rate.
Corporate income tax. Corporations are subject to tax on their net income at rates of up to
35%. Partnerships are not subject to tax, but their income is included in the tax returns of
the partners. Taxation of partnerships is referred to as pass-through due to the nature of
the income and deductions of the business passing through the partnership and being taxed
to its partners.
Payroll taxes. The progressive rates of the individual income tax stand in contrast to payroll
taxes (social security and Medicare taxes). All wage income earned up to a point, adjusted
annually for inflation ($113,700 for the year 2013) is taxed at 7.65% on the employee with
an additional 7.65% payment incurred by the employer. The 7.65% employee and
employer payroll tax is comprised of 6.2% social security tax and 1.45% Medicare tax. The
$113,700 annual limitation amount noted above is sometimes called the "Social Security
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TAX LAW
tax wage base amount.” Above the annual limitation amount, only the 1.45% Medicare tax
is imposed on the subsequent earnings. Self-employed people pay the entire 15.3%.
Beginning in 2013, there is an additional Medicare tax imposed on certain high wage earners
and self-employed people at a rate 0.9% on the portion of their wage (or self-employment)
income that exceeds the statutory threshold. The additional tax is not imposed on
employers.
Estate and gift tax. Estates for those who die during 2013 worth more than $5,250,000 are
taxed at a 40% rate. A gift tax is imposed if you give away more than $5, 250,000 during
your lifetime. Gifts given during your lifetime in excess of $5,250,000 are taxed at 40%.
The $5,250,000 amounts noted above are sometimes called the applicable exclusion
amount. Use of the applicable exclusion amount for gift tax purposes reduces the applicable
exclusion amount available at death. Gifts and transfers at death to grandchildren are
subject to yet another tax known as the generation-skipping transfer tax at a rate of 40%.
Each individual also has a $5,250,000 exclusion from the generation-skipping transfer tax.
All three exclusion amounts are indexed for inflation. The annual exclusion gift amount for
2013 is $14,000. This is the amount that an individual can give to another person before
filing a gift tax return.
Excise taxes. Federal excise taxes are applied to specific items such as motor fuels, tires,
telephone usage, tobacco products, and alcoholic beverages. Excise taxes are often, but
not always, allocated to special funds related to the object or activity taxed.
The Role of a Tax Lawyer
Most tax lawyers act as advisors, helping clients structure their business entities and
transactions in ways that minimize taxes. Some tax lawyers focus instead on representing
clients in disputes with the local, state or federal tax authorities. Most disputes between
taxpayers and the IRS are resolved either during the audit or in the context of an
administrative appeal within the IRS. Taxpayers whose federal tax disputes are not
administratively settled can choose to pursue litigation in one of three courts: U.S. Tax
Court, U.S. Court of Federal Claims, or U.S. District Court.
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TEXAS PUBLIC INFORMATION ACT
Texas Public Information Act
Understanding the Basics
This article is designed to be an easy reference to help reporters navigate through the Texas
Public Information Act. Below are some helpful links to look at if you have questions:




The homepage for the Texas Attorney General website: www.oag.state.tx.us/
PDF
version
of
the
2014
Public
Information
Act
Handbook:
www.oag.state.tx.us/AG_Publications/pdfs/publicinfo_hb.pdf
Contact information for the Open Records Administrator:
www.texasattorneygeneral.gov/og/open-government
and
www.oag.state.tx.us/open/charges.shtml
The Freedom of Information Foundation of Texas provides a free hotline for informal
attorney advice on the TPIA and other FOI issues which may be reached at 800580-6651.
The Texas Public Information Act (TPIA) guarantees citizens’ right to review and obtain
copies of documents held by governmental and quasi-governmental bodies across the state
of Texas, including the Legislature, the Executive branch, and local authorities; however,
the TPIA does not apply to judicial records. There is a separate procedure for seeking access
to judicial records.
The TPIA, formerly known as the Open Records Act, is located at chapter 552 of the
Government Code. Requests for public information, also known as “open records requests,”
are defined as requests for information that have been “collected, assembled, or
maintained” by a governmental body or for a governmental body if it “owns . . . or has a
right of access to” the information. See TEX. GOV’ T CODE § 552.002(a). “Governmental body”
is broadly defined in § 552.003(175)(A) of the Government code. The TPIA applies to
records regardless of their format, including information that is maintained in paper, tape,
microfilm, video, and electronic data held in a computer memory, as well as other mediums
specified under law. See TEX. GOV’ T CODE § 552.002(c).
How to Write the TPIA Request
Any person, including a non-citizen, may ask a governmental body for information. The
governmental body may not question the motives or interests of a person making a request
nor the person’s purpose in making the request. TEX. GOV’ T CODE § 552.222(b). All requests
must be treated “uniformly without regard to the position or occupation of the requestor,
the person on whose behalf the request is made, or the status of the individual as a member
of the media.” TEX. GOV’T CODE ANN. § 552.223. The request does not have to cite a
specific law or statute (although it is a good practice to cite the TPIA in the request), nor
does it have to be on a special form. The request should be in writing, either typed or
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TEXAS PUBLIC INFORMATION ACT
handwritten, and sent by e-mail, facsimile, and/or postal service. The request should be
sent to the officer for public information or the officer’s designee. See TEX. GOV’ T CODE §
552.301(c). A practical pointer is to make sure the request includes enough information to
identify the information sought and provides a means to communicate with the reporter
(i.e., name, address, telephone number). Additionally, an open records request must be for
information that is in existence at the time of the request.
What the Governmental Body Must Do With the Request
Once a request is filed, the governmental body must “promptly” make the requested
records available for copying or inspecting unless it decides the information should be
withheld under the Act. What qualifies as “promptly” depends on the facts surrounding each
request. Although the governmental body must respond to the request no later than 10
business days after its receipt, nothing in the Act prevents a reporter from specifying a
shorter deadline. Where the requested records are readily available, a reasonable time for
production may be fewer than 10 business days. If a person in the governmental body
thinks the information must be withheld, that person must forward the request to the
Attorney General for an opinion within 10 business days of receiving the request and must
provide the reporter with information regarding why the governmental body has asked for
the Attorney General’s decision. TEX. GOV’ T CODE § 552.301 (b),(d). The governmental body
then has five additional business days to formulate arguments and file copies of the
information for review by the Attorney General. The reporter also may make arguments,
and if the information relates to a third party, the Attorney General may solicit comment
from that party as well, although the Act does not require it to do so. The Attorney General
has 45 business days -- and may use an additional 10 business days -- to determine
whether the information is open or closed. TEX. GOV’ T CODE § 522.306(a). A ruling may take
the form of an open records decision, which is a formal opinion on a novel or problematic
legal question and is signed by the Attorney General, or an open records letter ruling, which
is an informal letter ruling based on established law and practice and is signed by assistant
attorneys general in the Open Records Division.
If the governmental body fails to make a timely request to the Attorney General, the
information must be disclosed absent compelling reasons to withhold. TEX. GOV’ T CODE §
552.302. However, if the governmental body needs clarification regarding the request, the
governmental body can ask the reporter for clarification. If the reporter does not provide
clarification within 61 days then the request is considered withdrawn. TEX. GOV’ T CODE §
552.222(d).
Both the Attorney General and the reporter can enforce the TPIA, primarily by filing a suit
for a writ of mandamus compelling a governmental body to make information available.
TEX. GOV’ T CODE § 552.321. The reporter also can enforce the Act by persuading the local
district attorney to file criminal charges. TEX. GOV’ T CODE §§ 552.351-552.353. Public
officials are subject to criminal penalties for destroying, mutilating, or altering public
documents, for distributing confidential information, or for failing “with criminal negligence”
to provide access to public information. TEX. GOV’ T CODE §§ 552.351-552.353.
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TEXAS PUBLIC INFORMATION ACT
Information Generally Required for Disclosure
The TPIA provides for at least 18 categories of information that must be disclosed unless
they are expressly confidential under other law. TEX. GOV’ T CODE § 552.022. They are:
(1) a completed report, audit, evaluation, or investigation made of, for, or by a
governmental body, except as provided by § 552.108 (regarding information dealing with
the detection, investigation, or prosecution of a crime and information in an internal record
or notation maintained for internal use);
(2) the name, sex, ethnicity, salary, title, and dates of employment of each employee and
officer of a governmental body;
(3) information in an account, voucher, or contract relating to the receipt or expenditure of
public or other funds by a governmental body;
(4) the name of each official and the final record of voting on all proceedings in a
governmental body;
(5) all working papers, research material, and information used to estimate the need for or
expenditure of public funds or taxes by a governmental body, on completion of the
estimate;
(6) the name, place of business, and the name of the municipality to which local sales and
use taxes are credited, if any, for the named person, of a person reporting or paying sales
and use taxes under Chapter 151, Tax Code;
(7) a description of an agency’s central and field organizations;
(8) a statement of the general course and method by which an agency’s functions are
channeled and determined, including the nature and requirements of all formal and informal
policies and procedures;
(9) a rule of procedure, a description of forms available or the places at which forms may
be obtained, and instructions relating to the scope and content of all papers, reports, or
examinations;
(10) a substantive rule of general applicability adopted or issued by an agency as authorized
by law, and a statement of general policy or interpretation of general applicability
formulated and adopted by an agency;
(11) each amendment, revision, or repeal of information described by Subdivisions (7)(10);
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TEXAS PUBLIC INFORMATION ACT
(12) final opinions, including concurring and dissenting opinions, and orders issued in the
adjudication of cases;
(13) a policy statement or interpretation that has been adopted or issued by an agency;
(14) administrative staff manuals and instructions to staff that affect a member of the
public;
(15) information regarded as open to the public under an agency’s policies;
(16) information that is in a bill for attorney’s fees and that is not privileged under the
attorney-client privilege;
(17) information that is also contained in a public court record; and,
(18) a settlement agreement to which a governmental body is a party.
Information Generally Excepted From Disclosure
The TPIA begins with the presumption that every government document is open unless it
is confidential under other state law or falls within one of the TPIA’s exceptions. TEX. GOV’ T
CODE §§ 552.002(a), 552.006.
The TPIA’s exceptions are listed at TEX. GOV’ T CODE§§ 552.102-552.148. They are generally:
Page 69

Section 552.101—Information confidential by law

Section 552.102—Information in a personnel file, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy

Section 552.103—Information relating to litigation of a civil or criminal nature to
which the state or a political subdivision is or may be a party

Section 552.104—Information relating to competition or bidding

Section 552.107—Information within the attorney-client privilege

Section 552.108—Information that would interfere with the detection, investigation,
or prosecution of a crime

Section 552.109—Private communications of an elected office-holder if the
disclosure would constitute an invasion of privacy
TEXAS PUBLIC INFORMATION ACT

Section 552.110—Certain commercial information, including trade secrets and
commercial information that is privileged or confidential by law

Section 552.117—Addresses, telephone numbers, social security numbers and
personal family information of public officials and employees, peace officers, Texas
Department of Criminal Justice employees, and certain other law enforcement
personnel.

Section 552.119—Photographs of peace officers unless (1) the officer is under
indictment or charged with an offense; (2) the officer is a party in a fire or police
civil service hearing or a case in arbitration; or, (3) the photograph is introduced as
evidence in a judicial proceeding.

Section 552.132— Indentifying information of a crime victim or claimant

Section 552.137—E-mail addresses of government employees

Section 552.138—Information maintained by a family violence shelter center,
trafficking shelter center or sexual assault program

Section 552.145—Texas no-call list

Section 552.148—Certain personal information maintained by a municipality
pertaining to a minor

Sections 552.026 and 552.114—Student Records
A governmental body relying on an exception to withhold information has the burden of
establishing that the record falls within the stated exception. In determining whether a
record is exempt from disclosure, courts are required to construe the TPIA liberally in favor
of openness.
Charges for Reproducing Public Information
The governmental body can charge the reporter for the reproduction of public information.
TEX. GOV’ T CODE § 552.261(a). If the governmental body estimates that the charges will be
over $40.00, the governmental body must provide the reporter with a written, itemized
statement of estimated charges before conducting any work on the request. The statement
must provide notice that if the reporter does not respond within 10 business days, the
request will be automatically withdrawn, and the statement must explain any available less
expensive ways of viewing the records. TEX. GOV’ T CODE § 552.2615(a),(b).
If, after the reporter has agreed to the itemized statement but before the information has
been released, the governmental body determines that the charges exceed the agreed price
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TEXAS PUBLIC INFORMATION ACT
by 20 percent, the governmental body must provide the reporter with an updated statement
of estimated charges. Once again, the reporter must respond within 10 business days. If
the governmental body does not provide this updated statement to the reporter, the charges
for the entire request are limited to the original agreed price plus 20 percent. TEX. GOV’ T
CODE § 552.2615(c), (d).
The TPIA is an invaluable resource for citizens seeking to peek behind the curtain of
government’s inner-workings. Governmental agencies are statutorily required to produce
certain categories of documents. If the information sought does not fall within the specific
list of exemptions, the governmental agencies must promptly produce the information
requested.
Reviewed by Jeffrey M. Harvey and Melissa Gray, Klemchuk LLP. Mr. Harvey can be reached at
[email protected]
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Tort & Insurance Practice
A tort exists when a person or company breaches a duty owed to another. When that breach
causes injury or harm it is actionable. Torts can be intentional such as fraud and
misrepresentation or be based on negligence. Torts do not arise from a contractual
relationship and do not require any privacy between the actors. The most common tort is
negligence which is a failure to act as a reasonably prudent person would act under the
same or similar circumstances. Tort cases are civil cases and the burden of proof to establish
a tort or any civil case is a preponderance of the evidence, as opposed to the “beyond a
reasonable doubt” standard that applies in criminal cases. Torts cases range from cases
involving automobile accidents, construction defects, professional negligence (such as
medical, legal or accounting malpractice) and products liability. Products liability is a tort
that does not require proof of negligence and is based on the creation of an unreasonably
dangerous product that causes injury. The utility of the product is weighed against the risk
the product poses in order to determine if it is unreasonably dangerous. There is also a
class of torts that involve premises liability. This tort requires that the injury be caused by
an unreasonably dangerous condition on real property which is either not corrected or
warned about, provided the premises owner had a reasonable opportunity to discover the
condition. Most tort cases involve insurance which covers both the defense costs and any
covered award of damages.
Personal Injury
Plaintiffs who bring a tort claim for personal injuries seek to be compensated by money
damages. The damages may include damages for past and future medical expenses, lost
wages, diminished earning capacity in the future, pain and suffering, mental anguish,
disfigurement, impairment, death, or other similar categories of harm.
Not all personal injury damages are to the body. A plaintiff may seek damages for libel,
slander, defamation, false imprisonment or damages to one’s reputation.
Property Damages
Property damages sometimes fall under the umbrella of a tort claim, and include a wide
spectrum of damages: damages for vehicles involved in accidents; damages for buildings
that were not built properly; damages for property that was lost or damaged while in the
custodial care of another; damages for organic crops that were accidentally sprayed with
non-organic insecticide; damages for goods ruined by a neighboring tenant’s flooded
bathroom; damages for buildings covered by a painter’s wind-borne spray paint; damages
suffered by an adjoining landowner when the natural flow of surfaces waters is disrupted
by new construction, damages from operations that contaminate groundwaters, etc.
Punitive Damages
In certain circumstances, a plaintiff may seek additional damages designed to deter the
conduct of the defendant and others in the future. These are called punitive or exemplary
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damages. To recover for this category of damages, a plaintiff must meet a higher burden
of proof than the burden required for the underlying tort, and must show more than
negligence. In order to recover punitive damages the plaintiff must show that the defendant
acted with fraud, malice, or gross negligence; the evidence must be “clear and convincing;”
and a jury must vote unanimously to award punitive damages. Additionally, there is a limit
on the amount of damages that a plaintiff may recover for exemplary damages. The Texas
legislature had imposed limits on punitive damages to the greater of: 1) two times the
economic damages, plus non-economic damages not to exceed $750,000, or 2) $200,000.
While it may be accurate to state that a jury awarded a plaintiff $10,000,000 in a verdict
against a defendant, if $8,000,000 was for punitive damages, the verdict may be greatly
reduced by the judge in accordance with the statutory limit.
Insurance
Tort claims are generally covered by insurance. There are different types of insurance
policies. Most professional liability policies that insure doctors, lawyers, accountants and
other professionals are written as what the industry calls Claims Made policies. This means
that the policies will only respond to claims that are made against the insured during the
policy period. These policies are typically referred to as E&O polices which is an acronym
for “errors and omissions”. The other type of policy is generally a commercial general
liability policy. These policies are typically written on an occurrence basis meaning the policy
will respond to the claim if the alleged act or omission occurred during the policy period
regardless of when it was made against the tortfeasor. Because insurance plays such an
important role in tort cases, there are attorneys who specialize in the interpretation of
insurance policies. Just because a person or company has an insurance policy does not
mean that the policy will pay for the tort claim being asserted. Various factors come into
play in determining if there is insurance coverage for a claim, including: the amount of
notice given to the insurance company; the location of the tort; the date of the tort; whether
an employee acted in the course and scope of his or her employment; whether the tort was
an accident versus an intentional act; and whether the tort was excluded from coverage by
the language of the insurance policy. Some attorneys specialize in helping the defendant
establish coverage under a policy, while others specialize in helping an insurance company
determine if coverage is provided for the tort. It is not uncommon for a separate lawsuit to
be filed related to the insurance coverage, in addition to the lawsuit involving the tort itself.
What is important to remember is that insurance is a vital part of the tort system as it
allows companies and persons to shift the risk of a large damage award away from them
onto the insurance company in exchange for a relatively small premium. However, to keep
premiums low, risks that create tremendous exposure, but which might fall under the
coverage of a general liability policy, are subject to policy riders known as exclusions.
Asbestos, pollution claims and cyber liability were all perils that arguably were covered
under general liability policies (and litigated), but when renewal policies were issued these
types of perils were excluded by attachments to the policy as the tremendous cost involved
in those types of claims would exhaust policy limits as well as possibly the solvency of the
issuing carrier.
Reviewed by Henry Wehrmann, a partner at Farrow-Gillespie & Heath LLP. He can be reached at
[email protected]
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A Civil Action Described
The following gives a brief description of the steps that occur in a civil lawsuit.
Civil litigation normally involves the resolution of claims that have arisen between
individuals or entities for injuries or losses that one of the parties has suffered. A civil
lawsuit begins with the filing of a Petition (or a Complaint in Federal Court) by the injured
person or entity, the Plaintiff, against the person or entity which is alleged to have caused
the injury, the Defendant. In the Petition, the Plaintiff sets out the basic facts that give rise
to the cause of action against the Defendant, as well as a description of the injuries or
damages that have been suffered and the relief that is sought.
When the suit is filed, the Clerk randomly assigns the case to one of the civil courts. The
Clerk also prepares the Citation which is to be served upon the Defendant with a copy of
the Petition to explain to the Defendant that he or she has been sued and must file an
answer. Service of the citation on the Defendant is normally handled by either personal
service by a County Constable or a private process server, or by registered or certified mail.
If for some reason, however, service cannot be completed through normal channels, then
a Judge can order that service be accomplished in other manners, such as through
publication of a notice in a newspaper or by placing a copy on the Defendant’s place of
residence.
After the Defendant is served, he or she must file an answer to the Petition, denying the
allegations being made by the Plaintiff and setting forth any defenses that he or she might
have to the allegations being made by the Plaintiff. If the Defendant fails to file an answer
within the time period set out in the citation, then there is a default, and the Plaintiff can
ask the Court to enter a default judgment against the Defendant. In defaulting, the
Defendant is deemed to have admitted all of the allegations in the Plaintiff’s Petition, and
the Plaintiff is only required to establish damages, if they are unliquidated.
Once the Defendant has answered the lawsuit, the parties begin to conduct discovery.
During this discovery period, the parties gather the information and evidence that they will
need to prove their case at trial. The length of time that the parties are given for discovery
usually depends on the type and complexity of the case. Discovery normally consists of
written discovery (written requests for information) and depositions. In written discovery,
parties usually send each other Requests for Disclosure that provide basic information about
the claims of the parties, a description of economic damages claimed by the parties, a list
of person with knowledge of relevant facts, and information about expert witnesses. Written
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discovery also includes Requests for Admissions asking the opposing party to admit certain
facts, Interrogatories or questions that have to be answered, and Requests for Production
that request that the other party produce certain documents and other items for inspection
and/or copying. Depositions, on the other hand, are used to gather sworn testimony from
parties or witnesses. In a deposition, the witness (or deponent) is asked questions by the
attorneys involved in the case, and the answers are recorded by a certified court reporter.
Alternatively, depositions may be videotaped. The transcript or video from a deposition can
be used at trial.
Normally, when discovery has been substantially completed and the parties are better able
to analyze the merits and value of their case, the parties agree to submit their dispute to
some form of alternative dispute resolution procedure (ADR), like mediation. In fact, many
courts order the parties to go to mediation. In mediation, as well as most ADR procedures,
the parties try to settle the case with the assistance of a neutral third party. The mediator
acts as a go-between for the parties, trying to bring the parties closer together so that the
case can settle. If the case does not settle at mediation, it proceeds to trial.
Prior to the trial, the parties may file various motions in an attempt to dispose of the case,
seek further discovery, and seek other orders and relief from the court. Some of these
motions will described below.
The court’s trial docket, including all trial settings, is handled by the court administrator.
Normally, cases are set for trial within 18 months of being filed; however, this amount of
time can vary greatly based on the complexity or size of the case, the availability of
witnesses and other matters. If the parties are not ready when the trial date arrives, they
can ask the court to continue the case and to reset it on the trial docket.
Once the case is called to trial, the parties and their counsel appear in front of the Judge
for a pre-trial conference. At this time, the Judge tries to get a feel from the parties as to
the estimated length of the trial. The Judge will also handle other pre-trial matters at this
hearing, including evidentiary matters (i.e. motions seeking to exclude certain evidence
and/or testimony).
In civil cases, either party to the lawsuit may request a trial by jury; absent such a request,
the judge will decide the facts of the case as well as the law. If either party has requested
a jury trial, the next step is the selection of the jury, which is called voir dire. During voir
dire, each party (or their counsel) is able to ask questions of the jury panel that has been
brought in for the case. The attorneys are attempting to find out if any of the potential
jurors have preexisting opinions or beliefs that might be harmful to their client’s case. If a
juror indicates that he or she does, in fact, have a bias or an opinion which would, in some
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way, prevent he or she from serving as a fair juror, then the Judge can strike that potential
juror “for cause.” After all of the jurors have been questioned, the parties are given time to
make additional strikes (removing potential jurors) called “preemptive strikes” against
jurors which they believe will not rule favorably on their case. While a party can strike a
juror for almost any reason, he cannot strike a potential juror because of race or sex or
religion. After all of the strikes have been made, the Judge selects the first 12 (or six if the
case is in a County Court at Law) jurors to serve on the panel.
Each party is then given a chance to give an opening statement, setting out their version
of the case and what they think the evidence will ultimately show. In a civil trial, the burden
of proof is on the Plaintiff who must prove the case to the jury by a preponderance of the
evidence. In other words, the Plaintiff must present sufficient evidence to prove that it is
more likely than not that the events happened in the way that they are presented. This is
in stark difference to the heavy burden that the State carries in a criminal trial—beyond a
reasonable doubt. Because the Plaintiff has the burden of proof, he or she is allowed to
present the case first, beginning with opening statements, then in the presentation of
evidence and finally the closing argument.
After the opening statements, the Plaintiff puts on his or her case through the presentation
of witnesses and the introduction of documents and exhibits. The Defendant is able to crossexamine each of the Plaintiff’s witnesses during the Plaintiff’s case and, after the Plaintiff
rests, able to put on his own defense by calling additional witnesses and by introducing
additional exhibits. After the Defendant completes his case, then the Plaintiff can put on
further evidence in rebuttal to the Defendant’s case.
When both sides have finished presenting all of their evidence to the jury, the Judge then
excuses the jury so that the Judge and the parties can prepare the jury charge. The jury
charge contains the questions that the jury will be asked to answer along with the definitions
and instructions that are necessary to help the jury answer such questions. The charge is
read to the jury by the Judge prior to closing arguments and is to be read again by the
presiding juror once the jury retires to deliberate.
As soon as the jury charge is read to the jury, each of the parties is given a chance to give
a Closing Argument, summarizing the evidence that was presented and how such evidence
supports the parties’ claims. After the closing arguments, the jury is sent to the jury room
to deliberate and to answer the questions contained in the charge.
The jury’s answers to the questions are then read to the parties and, if there are no
objections to the answers, then the jury is excused. The Judge then uses the answers to
prepare the final judgment that will be entered in the case.
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After the judgment is entered, various post-judgment motions may be filed, the most
common of which is a Motion for New Trial, challenging the weight of the evidence. If a case
is dismissed for want of prosecution, that party may file a verified (sworn) Motion to
Reinstate the Case. Both Motions for New Trial and Motions to Reinstate the Case must be
filed within 30 days of the signing of the judgment.
Either side may appeal the judgment if the Judge committed an error in the trial court. The
first level of appeal from any Dallas County Civil District Court or any Dallas County Court
at Law, is to the Fifth District Court of Appeals in Dallas. Appellate filing deadlines for the
original notice of appeal have to be followed strictly or else the appeals court cannot hear
the appeal. Parties must follow all rules for timely filing and briefing as outlined in the Texas
Rules of Appellate Procedure.
Important Rules and Deadlines
In a civil lawsuit rules and deadlines are important. Also, all documents filed with the court
must be in the English language. Pro se litigants must follow the same rules as parties who
are represented by attorneys.
Applicable Rules
The Texas Rules of Civil Procedure govern all civil cases in Texas state courts. In general,
the Texas Rules of Civil Procedure set forth rules regarding pleadings, discovery, and
deadlines. In civil cases filed in Dallas County, these rules are supplemented by the Dallas
County Civil Court Rules. For more information, consult the "Resources and References" list
described below.
Answer Deadline
A person who has been sued, the Defendant, must answer the lawsuit by filing an Original
Answer by 10:00 a.m. on the next Monday, following the expiration of 20 days from the
date the Plaintiff's Original Petition was served. A person sued in a Justice of the Peace
Court must file an Original Answer by 10:00 a.m. on the next Monday, following the
expiration of 10 days from the date the Petition was served. If the Defendant fails to answer
the lawsuit timely, after proper service, a Default Judgment may be taken against
Defendant, which is just as enforceable against Defendant and Defendant’s property as any
other judgment.
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Verified Pleadings
Some pleadings must be verified before being filed in the lawsuit. Verification is swearing,
before a notary, that the contents of the pleading or particular parts of the pleading are
true and correct. Failing to verify the particular types of claims that must be verified in a
pleading may result in elimination of that claim completely. Please consult Texas Rule of
Civil Procedure 93.
Discovery Deadlines
A party to a lawsuit must respond to discovery requests within 30 days of receiving
discovery requests, if they were hand-delivered to the party. If the requests were mailed
or faxed to the party, the deadline is 33 days from the date the discovery was mailed or
faxed, i.e., the postmark date or fax date or certificate of service (see the "Adding Three
Days" subsection below). The response can be mailed on the date of the deadline (see the
"Service Mailbox Rule" subsection below service). If discovery was served with the Citation
and Original Petition, then the person must respond within 50 days. Failure to respond to
the discovery within the stated deadlines can result in objections to improper requests being
waived and sanctions being imposed (see "Sanctions" subsection below).
Summary Judgment Deadlines
Throughout the litigation process, parties sometimes can file motions that will end the case
at the trial court level. These motions are called dispositive motions and include motions
to dismiss, pleas to the jurisdiction, and motions for summary judgment. Summary
judgments are extremely complicated and can make or break a case. When a Motion for
Summary Judgment is filed, the other party should file a response, even though a response
is not required because the motion must stand or fall based on the evidence presented with
it; no oral hearing or record is required for the same reason, though hearings are
customary. If a hearing is held, no witnesses will be allowed to testify in person. The
testimony occurs in affidavit form which is filed with the motion.. A responding party is
entitled to 21 days notice prior to the decision or hearing on the matter (counting backwards
from the day of the hearing, including the day of the hearing). Three days are added to this
deadline, if the motion and notice are mailed or faxed. The response is due seven (7) days
prior to the hearing (counting backwards from the day of the hearing, including the day of
the hearing). It is considered timely filed if mailed on the due date, even if received inside
of seven days prior to the hearing, per the Filing Mail Box Rule. The moving or filing party
may file a reply to the response three (3) days prior to the hearing. At the hearing, the
moving or filing party has the burden of proof based only upon the written evidence
presented with the motion for summary judgment. If a party fails to file a response prior
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to the above deadline, the person cannot use evidence to argue against the motion. If a
party files a response timely, he or she may argue only the counter-evidence attached to
the response and the evidence attached to the motion. If the motion is sufficient to support
a judgment, failing to file a response can result in dismissal of the case or a judgment in
the case.
Final Judgment Deadline
A judgment becomes a Final Judgment 30 days after it is signed, unless certain post-trial
motions are filed. The court loses its power to rule on the case or the judgment once this
deadline passes. A party must comment on or complain about the judgment (its entry, form
or substance) within this 30-day time period or the action must be taken within this 30-day
time period in order to preserve the right to appeal. If certain steps are not followed during
this 30-day time period, an appeal usually cannot be taken and any error by the trial court
is waived. Please consult the Texas Rules of Appellate Procedure for more information
regarding appeals.
Dismissal for Want of Prosecution (DWOP)
The court has the power to rid its docket of cases that are not being pursued earnestly. The
court may issue a Notice of Dismissal for Want of Prosecution (a "DWOP") and allow the
party or parties one last opportunity to appear and show the court that due diligence has
been or is being taken in relation to the lawsuit sufficient to allow it to continue on the
court's docket. If the court takes action on the DWOP, it will dismiss the case without
prejudice, which means that the case can be re-filed by filing a new petition unless the
statute of limitations has expired.
Statute of Limitations
A lawsuit must be filed within the Statute of Limitations period applicable to the particular
cause(s) of action. Generally, the Statute of Limitations is two years or four years from the
accrual of the cause of action. If the lawsuit is filed after the Statute of Limitations has
passed, it is forever barred from being pursued. Depending on the facts at issue, a party
may be able to assert an exception to the Statute of Limitations, such as the "discovery
rule" or fraudulent concealment. Please consult Chapter 16 of the Texas Civil Practice and
Remedies Code regarding the Statute of Limitations.
Filing Mailbox Rule
There are two mailbox rules: one for service and one for filing. The service mailbox rule is
explained below. The Filing Mail Box Rule provides that when a document is placed into a
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properly addressed, postage paid package and sent by first class United States Mail, it is
considered received by the court on the date it is postmarked as long as it is received by
the clerk within 10 days. Remember, the document must be sent through the United States
Postal Service to take advantage of the mailbox rule. A document sent by any other delivery
service (i.e. UPS or Federal Express) will be considered filed when it is received by the
Court, not when it was sent.
Service Mailbox Rule
The Service Mail Box Rule provides that a document sent to another party by mail is
considered served on the day it is mailed. The document must be sent by certified or
registered mail, properly addressed to the other party at that party's last known address,
mailed on or before the deadline, and include a Certificate of Service explaining how the
document was sent. As with the Filing Mailbox Rule, the document must be sent through
the United State Postal Service.
Adding Three Days to a Deadline
When a document is served by mail or fax and requires a response by a certain deadline,
three days are added to the normal deadline, e.g., a 30-day deadline becomes 33-day
deadline.
Computation of Deadlines
When computing deadlines, the date of service is not included. Begin counting the deadline
on the day following receipt and the due date is included in the calculation, unless the due
date falls on a Saturday, Sunday or legal holiday, in which case the due date is the next
business day after the weekend or holiday.
Sanctions
Failure to comply with the court's rules, procedures, and deadlines can subject the parties
to sanctions. Sanctions range from a fine, to restriction of evidence, to dismissal of the
case, to jail time. Sanctions can have devastating consequences.
Injunctive Relief and Motions for Contempt
One kind of relief that may be sought in civil courts is injunctive relief; it may be the only
relief sought or accompany other requests. An injunction is a court order, requiring a party
to take an action or stop taking an action. There are state statutes that authorize
injunctions in certain circumstances and involving certain parties. If a statute does not
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apply, parties may obtain injunctions if they can satisfy four requirements. The pleading
requirements for this kind of relief can be complicated, and a party may fail to obtain this
relief based on failure to meet the pleading requirements. There are three types of
injunctions: 1) a temporary restraining order; 2) a temporary injunction; and 3) a
permanent injunction. A temporary restraining order is an emergency order that a court
may issue the day that a lawsuit is filed and without notice to the other party. Because of
the emergency nature of this order, the order usually only lasts fourteen days when the
court may hold a temporary injunction hearing after notice to all parties. Temporary
injunction hearings may include evidence and testimony by both parties, and if issued, may
last until the final judgment or permanent injunction is entered in the case. An injunction
issued against a party should be taken seriously, as violation of an injunction may result in
the court holding the party in contempt of court. Ordinarily, a contempt judgment is entered
only after a motion by a party, notice, and hearing. In the contempt judgment, a court
may fine a person for violation of the court order or jail them.
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Roles of the Court
The Role of the Judge - Each state court has an elected judge that presides over that
court. In our system, the judge is required to be impartial and to base decisions on the law
and evidence that is presented in the courtroom. For this reason, the judge will not speak
with parties outside of the courtroom and cannot help parties with their case. Parties should
never attempt to contact the judge directly in person or on the telephone. If a party writes
to the judge, a copy should be sent to all other parties; the judge may not respond to the
letter.
The Role of the Court Coordinator - This person works for the judge and handles the
day-to-day business of the court. Because the coordinator is usually well-informed
regarding the policies and procedures of each individual judge, you may wish to contact
this person if you have questions about court appearances and similar matters. But the
coordinator is not a lawyer and, cannot give you legal advice.
The Role of the Court Clerk - The clerks assigned to each court do not work directly for
the judge, but rather, for the county or district clerk's office. They process all paperwork
and collect all fees and costs for the court at the filing desk for the district or county clerk.
While the clerks are there to help the public, they cannot tell persons how to draft pleadings
or what deadlines apply; they cannot make free copies for you; and most importantly, they
are not lawyers and cannot advise you on legal matters.
The Role of the Court Bailiff -The bailiff is responsible for ensuring safety in the
courtroom. The bailiff may also call the docket of the court and inform the judge whether
all parties have appeared in court on the proper day and time.
The Role of the Court Reporter - The court reporter, when present, creates a written
transcript of what is said during a trial, hearing, or deposition. You may receive a copy of
the transcript by paying a transcript fee to the court. If a person is financially unable to pay
the transcript fee, he or she may still receive a copy by filing an affidavit of inability that
explains the situation.
The Role of the Opponent's Lawyer - This lawyer represents a party’s opponent, and
cannot give legal advice to any person in the litigation other than the attorney’s client.
Every item sent to the court and filed with the court must be sent to every party in the
litigation or that party’s attorney.
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What to File - All pleadings and other requests for action by the court must be filed with
the court clerk. Parties generally should not file discovery documents or everyday
correspondence with the court. A copy of every paper a party files with the court must be
sent to all parties in the case. In fact, every paper a party files must have at the end a
Certificate of Service, which is a signed statement that the party has actually sent a copy
of that paper to all parties on a specified date.
Filing Fees - Parties will need to pay a fee in order to file a lawsuit and serve notice of the
lawsuit on the defendant. But for most other papers that are filed with the court, the party
will not be required to pay any fees. For more information about filing fees, you should
check the Dallas County District Clerk's website at www.dallascounty.org/html/citizenserv/district-clerk/fees-civil.html. If a person is financially unable to pay the filing fee, the
party may still file his pleading, motion, or other paper with the court by attaching an
affidavit that explains why he cannot pay the fee.
Receiving Information About a Case - Parties will receive information about the case by
mail, fax, and by telephone from both the court and the Opponent's Lawyers. Therefore, a
party should be sure that all of them have the party’s current address and telephone number
on file at all times. A party should also always return all telephone calls and accept delivery
of all mail regarding the case. If a party is going to be out of town for an extended period,
the party should notify the court coordinator and all parties with a "vacation letter" listing
your dates of unavailability. If you are not a party to the case, for a nominal fee you can
obtain copies of filings in a case from the Records Department of the court.
How Can a Missed Deadline Affect a Case? - Throughout a case, there will be deadlines.
There are deadlines, for example, for answering the Petition, for requesting discovery, for
responding to discovery, and for responding to Summary Judgment motions. Deadlines
cannot be ignored and should not be missed. A missed deadline can result in the dismissal
of the case as the Plaintiff or a judgment against the Defendant. To ensure that a party
does not miss deadlines, the party should carefully review all notices received regarding
the case. Some courts issue scheduling orders, which will list many of the deadlines in the
case. Parties should always appear in court whenever notified to do so. When a party
receives pleadings, motions, and discovery requests, the party should check the Rules of
Civil Procedure for the court and the local rules that apply to the court. These documents
are generally available at the Dallas County Law Library or on the Internet.
Proper Attire in Court - You should dress as though you were going to a job interview.
Men should wear pants and a shirt with a collar. A suit, jacket or tie is always appropriate.
Women should wear a dress, skirt, or pants that are not too tight, too short or low cut. It
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is never proper to wear shorts, t-shirts or sandals. Excessive make-up or jewelry also should
not be worn.
Courtroom Behavior - All persons are expected to conduct themselves with civility,
decorum and respect toward others. Before appearing in court for the first time, a party
should read the Rules of Decorum and the Texas Lawyer's Creed, all of which may be found
on the Dallas County District Court's website. In the courtroom, it is never proper to wear
a hat, read a newspaper, eat, or chew gum. When speaking to the judge in court, you
should speak clearly, politely, and loud enough to be heard. You should never interrupt the
judge and if the judge asks you a question, your answer should end with "Sir," "Ma'am," or
"Your honor." By contrast, responses such as "Huh?" and "I dunno" are never appropriate.
If the court reporter is making a transcript of any proceeding, all answers must be in words,
not just "Uh-huh" or a nodding of the head.
Children and Court - While it may be helpful to have family members or friends present
for court appearances, it is seldom, if ever, beneficial to have small children present. Keep
in mind that children can be distracting to you, the judge, and other parties in the
courtroom.
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A Criminal Case Described
A Criminal case begins long before it is filed against a defendant. First, a complainant,
victim or witness calls the police to report an offense, or the police make an arrest upon
viewing a crime. A police report is generated and reviewed by an officer's supervisors. If
the offense is a violation of the law, then the report is forwarded to the DA's office. If not,
it is kept in the police department's computer base, but no official action is taken.
If the offense is a misdemeanor, then the police report is sent to the DA's office intake
division. This division is run by assistant DA's, and they determine if the offense warrants
an information. An information is the misdemeanor version of an indictment. With
misdemeanors, there is no grand jury. The intake attorneys determine if there is an offense
(not whether there is enough evidence to prove it, just whether there is an offense). If an
offense was committed, then the case is filed with the DA's office and an information is
created. The information is the instrument that informs the defendant of the crime with
which he has been charged.
From there, the defendant gets an attorney and moves through the court system. If he/she
cannot afford an attorney, then the court will appoint one or the public defender’s office will
represent him/her. A defendant is only permitted to represent himself pro se if he chooses
to and formally requests it from the judge. Even if he goes pro se, a judge will often appoint
an attorney for the defendant to consult with.
Once an attorney is obtained, the attorney appears on behalf of the defendant and meets
with the assistant district attorney assigned to the case or the court. These appearances
(called announcements) are scheduled by the clerk's office; however, all trials and other
hearings are set by the court coordinator (equivalent of the court administrator in a civil
setting). If a plea bargain (essentially a settlement between the State and the defendant)
cannot be reached, then the case is set for trial. Both the State and the defendant must
waive a jury to proceed to a bench trial.
If the offense is a felony, then the police report is forwarded to the Grand Jury division of
the DA's office. That division is also manned by assistant DA’s, and they determine if there
is not only an offense, but whether there is evidence to prove each element of the offense.
If not, then the grand jury division sends the case back to the police department; and they
either investigate further and send it back to the DA's office, or they shelve the case.
If there is sufficient evidence of the offense, then the case is presented to the grand jury.
The State presents the case and may call witnesses. The defendant may also testify, along
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A CRIMINAL CASE DESCRIBED
with any defense witnesses. Often times, the assistant DA reads the police report narrative
into the record, and the grand jury votes to indict or not. There are 12 people on the grand
jury.
If there is no indictment, then the defendant is released from the charges, but they can be
brought again if more evidence is discovered.
If there is an indictment, the procedure is the same as with the misdemeanors. Either a
plea bargain is reached or the case goes to trial.
If a plea bargain is reached, the defendant pleads guilty and is sentenced by the judge. If
a guilty plea is agreed upon but the punishment is not, then the defendant can plead guilty
and allow the punishment to be set by the judge (called “going open for punishment”) or
by a jury (which is called a slow plea). When the defendant goes open for punishment to
either the judge or jury, both sides may present evidence and argument just as if it was a
trial on whether or not the defendant was guilty.
If no plea bargain is reached, then the case is put on the trial docket. If the defendant is in
jail (has not bonded out) then the trial will be within 3-6 months depending on the court.
If the defendant is out on bond, then the trial could take up to a year to be heard.
The criminal trial is, in many respects, similar to a civil trial. After the pre-trial matters
concerning the evidence are ruled on by the Court, a jury is selected. The State is then
required to put on its case, beginning with an opening statement. The defendant can also
make an opening statement at the beginning of trial or can wait until after the State rests.
Once the State rests, the defendant can, if he desires, put on his own case; however, the
defendant is never required to testify on his own behalf. If there are no rebuttal witnesses,
then the case goes to the jury. The State must prove the defendant’s guilt beyond a
reasonable doubt, which is a much tougher standard than the standard in a civil case which
is “by a preponderance of the evidence.”
If the jury finds the defendant guilty, then the punishment or sentencing phase begins.
Sentencing can be determined by either the judge or the same jury that heard the guilt
portion of the trial. In either case, the State and the defendant are both allowed to put on
additional evidence that they would like to be considered by the judge or jury in setting the
punishment. If the defendant is sentenced to serve jail time, his bond is immediately
revoked and he is placed into the custody of the court for transfer to a jail or prison facility.
If the defendant is given probation, then the defendant is released.
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CRIMINAL DISPOSITION CODES
Criminal Disposition Codes
Code
Description
BORD
Bill of review denied
BORG
Bill of review granted
BTCP
Boot Camp
CHOV
Change of venue
CRTA
Court of Record – Affirmed
CRTC
Court of Record – This method is used to signify a court of record case
CTRB
Court of Record – Reform and correct
CTRD
Court of Record – Dismissed
CTRN
Court of Record – Reversed and remanded
CTRW
Court of record – Withdrawn
DISM
Charge dismissed
GJRM
Grand Jury reduces to Misdemeanor
HUNG
Jury hung on verdict
INN
Plea of not guilty, found innocent of charge
INST
Instructed verdict, found innocent of charge
JCJG
Plea of not guilty, found guilty by the judge and sentenced by the court
JCJP
Plea of not guilty, found guilty by the jury and sentenced by the jury
JGMT
Judgment (MD court only)
JGSA
Judgment set aside
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CRIMINAL DISPOSITION CODES
JVGR
Defendant found to stand trial as an adult. – FJ case transferred to Grand Jury
JVJV
Juvenile case returned to Juvenile Court
JVTR
Defendant found to be a Juvenile by Judge
MISC
Felony case transferred to a County Criminal Court
MISD
Conviction of misdemeanor charge (non-reduction)
MIST
Mistrial
NACT
No action taken by Grand Jury
NAJG
Non-Adjudication of guilt (Open plea)
NAOG
Non-Adjudication of guilt (Agreed plea)
NBIL
No Bill by Grand Jury
NFOG
No finding of guilt (dismissal type)
NFWA Plea of not guilty, found innocent of charge because no fact witness appearing for
probation
ODLA
Occupational Drivers License – Driver's License amended
ODLD
Occupational Drivers License – Driver's License dismissed
ODLG
Occupational Drivers License – Driver's License granted
PGBC
Agreed plea of guilty before the court
PGBJ
Open plea of guilty before the jury
PGFR
Agreed plea of guilty before the court – Felony reduced to Misdemeanor
PGJG
Open plea of guilty before the court
PLPR
Placed on probation
PRCS
Probation reduced and case set aside
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CRIMINAL DISPOSITION CODES
PROC
Procedendo
QUAS
Quashed
REDI
Reduced and dismissed
REVC
Revocation motion withdrawn and probation continued or amended
REVD
Revocation motion denied
REVK
Probation revoked
REVW
Revocation motion withdrawn and probation discharged
RIGJ
Returned to the Grand Jury
ROCW
Request of complaining witness
RVRD
Probation revoked sentence reduced
Page 89
FREQUENTLY ASKED QUESTIONS
Frequently Asked Questions
Q. How do I find out if a case is set for trial or hearing?
A. In civil cases, including family, contact that particular court’s coordinator for trial settings
and the deputy clerk assigned to that court for hearing settings. In criminal courts, the
coordinator handles both.
Q. How do I get statistical information about cases?
A. Contact the County Clerk’s office for case statistics in county courts. Contact the District
Clerk for case statistics in district court. You can also contact the Office of Court
Administration in Austin at www.courts.state.tx.us.
Q. How can I find out if a verdict has been returned in a case?
A. Contact the individual court.
Q. How can I find filling associated with a case on-line?
A. Enter the case number at http://courtecom.dallascounty.org/pav/. To find the case
number, go to http://courts.dallascounty.org/default.aspx where you can search by party
or attorney.
Q. What are the differences among the various types of courts in Dallas County?
A. Some counties have one court that hears all types of cases. Because Dallas is so large,
its trial courts are broken out by subject matter as follows:
Civil District Courts handle any non-family civil matters exceeding $500 in
controversy such as cases involving personal injuries, commercial matters,
consumer disputes, debts and declaratory judgments.
Family District Courts handle divorces, family-related protective
adoptions, name changes, child support, and child custody issues.
orders,
Criminal District Courts hear felony criminal cases, including capital murder
cases.
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FREQUENTLY ASKED QUESTIONS
Juvenile District Courts handle matters involving juveniles such Child Protective
Services cases for parental termination and delinquent cases against juveniles.
County Courts At Law are authorized to hear most of the same matters as the
civil district courts and also decide appeals from the justice of the peace court. In
some counties, county courts at law have jurisdictional limits (i.e., they cannot hear
cases above a certain amount in controversy), but in Dallas County, they do not.
County Criminal Courts handle Class A and B misdemeanor cases, including DWIs
and misdemeanor family violence cases; one county criminal court also hears Class
C misdemeanors.
Probate Courts hear cases involving estates of deceased persons as well as
guardianships of persons declared incapacitated and trust matters. Probate courts
are authorized to hear lawsuits involving probate estates, so regular civil trials can
be conducted there.
Page 91
TEXAS DISCIPLINARY RULES OF PROFESSIONAL
CONDUCT
Texas Disciplinary Rules of Professional Conduct
(Excerpts from the Tex. Disciplinary R. Prof. Conduct, (1989) reprinted in Tex. Govt Code
Ann., tit. 2, subtit.G, app. (Vernon Supp. 1995)(State Bar Rules art X [[section]]9))
III ADVOCATE
3.04 Fairness in Adjudicatory Proceedings
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute
unlawfully alter, destroy or conceal a document or other material that a competent lawyer
would believe has potential or actual evidentiary value; or counsel or assist another person
to do any such act.
(c) except as stated in paragraph (d), in representing a client before a tribunal:
(1) habitually violate an established rule of procedure or of evidence;
(d) knowingly disobey, or advise the client to disobey, an obligation under the standing
rules of or a ruling by a tribunal except for an open refusal based either on an assertion
that no valid obligation exists or on the client’s willingness to accept any sanctions arising
from such disobedience.
Comment:
1. The procedure of the adversary system contemplates that the evidence in a case is to
be marshalled competitively by the contending parties. Fair competition in the adversary
system is secured by prohibitions against destruction or concealment of evidence,
improperly influencing witnesses, obstructive tactics in discovery procedures, and the like.
3. Paragraph (c)(l) subjects a lawyer to discipline only for habitual abuses of procedural or
evidentiary rules, including those relating to the discovery process. That position was
adopted in order to employ the superior ability of the presiding tribunal to assess the merits
of such disputes and to avoid inappropriate resort to disciplinary proceedings as a means
of furthering tactical litigation objectives. A lawyer in good conscience should not engage
in even a single intentional violation of those rules, however, and a lawyer may be subject
to judicial sanctions for doing so.
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TEXAS DISCIPLINARY RULES OF PROFESSIONAL
CONDUCT
6. Paragraph (d) prohibits the practice of a lawyer not disclosing a client’s actual or intended
noncompliance with a standing rule or particular ruling of an adjudicatory body or official
to other concerned entities. It provides instead that a lawyer must openly acknowledge the
client’s noncompliance.
7. Paragraph (d) also prohibits a lawyer from disobeying, or advising a client to disobey,
any such obligations unless either of two circumstances exists. The first is the lawyer’s open
refusal based on an assertion that no valid obligation exists. In order to assure due regard
for formal rulings and standing rules of practice or procedure, the lawyer’s assertion in this
regard should be based on a reasonable belief. The second circumstance is that a lawyer
may acquiesce in a client’s position that the sanctions arising from noncompliance are
preferable to the costs of compliance. This situation can arise in criminal cases, for example,
where the court orders disclosure of the identity of an informant to the defendant and the
government decides that it would prefer to allow the case to be dismissed rather than to
make that disclosure. A lawyer should consult with a client about the likely consequences
of any such act of disobedience should the client appear to be inclined to pursue that course;
but the final decision in that regard rests with the client.
3.07 Trial Publicity
(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement
that a reasonable person would expect to be disseminated by means of public
communication if the lawyer knows or reasonably should know that it will have a substantial
likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel
or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases
if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type
referred to in that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal
investigation or witness; or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a
plea of guilty to the offense; the existence or contents of any confession, admission, or
statement given by a defendant or suspect; or that person’s refusal or failure to make a
statement;
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TEXAS DISCIPLINARY RULES OF PROFESSIONAL
CONDUCT
(3) the performance, refusal to perform, or results of any examination or test; the refusal
or failure of a person to allow or submit to an examination or test; or the identity or nature
of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or
proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as
evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial
trial.
(c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement
of the type referred to in that paragraph when the lawyer merely states:
(1) the general nature of the claim or defense;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress, including the general scope of the
investigation, the offense, claim or defense involved;
(4) except when prohibited by law, the identity of the persons involved in the matter;
(5) the scheduling or result of any step in litigation;
(6) a request for assistance in obtaining evidence, and information necessary thereto;
(7) a warning of danger concerning the behavior of a person involved, when there is a
reason to believe that there exists the likelihood of substantial harm to an individual or to
the public interest; and
(8) if a criminal case:
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension
of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the
investigation.
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TEXAS DISCIPLINARY RULES OF PROFESSIONAL
CONDUCT
Comment:
1. Paragraph (a) is premised on the idea that preserving the right to a fair trial necessarily
entails some curtailment of the information that may be disseminated about a party prior
to trial. This is particularly so where trial by jury or lay judge is involved. If there were no
such limits, the results would be the practical nullification of the protective effect of the
rules of forensic decorum and the exclusionary rules of evidence. Thus, paragraph (a)
provides that in the course of representing a client, a lawyer’s right to free speech is
subordinate to the constitutional requirements of a fair trial. On the other hand, there are
vital social interests served by the free dissemination of information about events having
legal consequences and about legal proceedings themselves. The public has a right to know
about threats to its safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings, particularly in matters of general
public concern. Furthermore, the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public policy.
2. Because no body of rules can simultaneously satisfy all interests of fair trial and all those
of free expression, some balancing of those interests is required. It is difficult to strike that
balance. The formula embodied in this Rule, prohibiting those extrajudicial statements that
the lawyer knows or reasonably should know have a reasonable likelihood of materially
prejudicing an adjudicatory proceeding, is intended to incorporate the degree of concern
for the first amendment rights of lawyers, listeners, and the media necessary to pass
constitutional muster. The obligations imposed upon a lawyer by this Rule are subordinate
to those rights. If a particular statement would be inappropriate for a lawyer to make,
however, the lawyer is as readily subject to discipline for counseling or assisting another
person to make it as he or she would be for doing so directly. See paragraph (a).
3. The existence of material prejudice normally depends on the circumstances in which a
particular statement is made. For example, an otherwise objectionable statement may be
excusable if reasonably calculated to counter the unfair prejudicial effect of another public
statement. Applicable constitutional principles require that the disciplinary standard in this
area retain the flexibility needed to take such unique considerations into account.
4. Although they are not standards of discipline, paragraphs (b) and (c) seek to give some
guidance concerning what types of statements are or are not apt to violate paragraph (a).
Paragraph (b) sets forth conditions under which statements of the types listed in
subparagraphs (b)(1) through (5) would likely violate paragraph (a) in the absence of
exceptional extenuating circumstances. Paragraph (c) on the other hand, describes
statements that are unlikely to violate paragraph (a) in the absence of exceptional
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TEXAS DISCIPLINARY RULES OF PROFESSIONAL
CONDUCT
aggravating circumstances. Neither paragraph (b) nor paragraph (c) is an exhaustive
listing.
5. Special rules of confidentiality may validly govern proceedings in juvenile, domestic
relations and mental disability proceedings, and perhaps other types of litigation. Rule
3.04(c)(1) and (d) govern a lawyer’s duty with respect to such Rules. Frequently, a lawyer’s
obligations to the client under Rule 1.05 also will prevent the disclosure of confidential
information.
Page 96
LEGAL DEFINITIONS
Legal Definitions
AFFIDAVIT: A written statement that is made under oath.
ALTERNATIVE DISPUTE RESOLUTION: Methods for resolving problems without going to
court, including arbitration and mediation.
ANSWER: In a civil case, the defendant's written response to the plaintiff's
complaint/petition. It must be filed within a specified period of time, and it either admits to
or (more typically) denies the factual or legal basis for liability.
APPEAL: A request to a supervisory court, which is usually composed of a panel of judges,
to overturn the legal ruling of a lower court.
ARBITRATION: A method of alternative dispute resolution in which the disputing parties
agree to try the case to an impartial arbitrator(s). Arbitration may be binding or nonbinding, but is usually binding.
ARRAIGNMENT: The initial appearance before a judge in a criminal case.
ASSIGNMENT: The transfer of legal rights, such as the time left on a lease, from one
person to another.
BAIL: The money a defendant pays as a guarantee that he or she will show up in court at
a later date. For most serious crimes, a judge sets bail during the arraignment.
BANKRUPTCY: Insolvency; a process governed by federal law to help when people or
companies cannot or will not pay their debts.
BENCH TRIAL: Also called non-jury trial. A trial held before a judge and without a jury.
The judge makes rulings on both fact and law.
BEYOND A REASONABLE DOUBT: The highest level of proof required to win a case. This
is necessary to get a guilty verdict in criminal cases.
BRIEF: A written document that outlines a party's legal arguments in a case.
BOND: In a criminal matter, the amount of money the court requires the defendant or his
family to pay in order to assure his appearance for trial.
BIFURCATION: The process of severing a civil trial into a separate liability phase, then
depending on the outcome, a damages phase. This is done to alleviate confusing issues to
a jury. Criminal trials have a guilt/innocence phase then a punishment phase.
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LEGAL DEFINITIONS
BURDEN OF PROOF: The duty of a party in a lawsuit to persuade the judge or the jury
that enough facts exist to prove the allegations of the case. The burden of proof standards
are beyond a reasonable doubt, clear and convincing, and preponderance of the evidence.
CASE LAW: Also known as common law or judicial opinions. The law created by judges
when deciding individual disputes or cases. Judicial interpretation of statutes and existing
common law as it applies to the specific facts of the case ruled on. General opinions are
issued by appellate courts in both state and federal levels.
CHANGE OF VENUE: A change in the location of a trial, usually granted to avoid prejudice
against one of the parties due to things such as pre-trial publicity.
CIRCUMSTANTIAL EVIDENCE: Indirect evidence that implies something occurred but
does not directly prove it. If a man accused of embezzling money from his company had
made several big-ticket purchases in cash around the time of the alleged embezzlement,
the purchases would be circumstantial evidence that he had stolen the money.
CLASS ACTION SUIT: A lawsuit in which one or more parties file a complaint on behalf of
themselves and all other people who are "similarly situated" (suffering from the same
problem). Often used when a large number of people have comparable claims.
CLEAR AND CONVINCING EVIDENCE: The level of proof sometimes required in a civil
case for the plaintiff to prevail. The judge or jury must be persuaded that it is highly
probable that the claim is true. It is more than a preponderance of the evidence but is less
than beyond a reasonable doubt.
CODICIL: A supplement to a will.
COLLECTIVE BARGAINING AGREEMENT: Agreement between a union and management
which governs issues such as pay and grievance resolution. Almost always calls for
arbitration instead of court.
COMMON LAW: The law created by judges when deciding individual disputes or cases.
COMMON-LAW MARRIAGE: In some states, a couple is considered married if they meet
certain requirements, such as living together as husband and wife for a specific length of
time. Such a couple has all the rights and obligations of a traditionally married couple.
COMMUNITY PROPERTY: Refers to the system for dividing the couple's property in which
everything a husband and wife acquire after they are married is owned equally (fifty-fifty).
COMPLAINT/PETITION: In a civil action, the document that initiates a lawsuit. The
complaint outlines the alleged facts of the case and the basis for which a legal remedy is
sought. In a criminal action, a complaint is the preliminary charge filed by the complaining
party, usually with the police or a court. In Texas, state civil court the complaint is called a
petition.
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LEGAL DEFINITIONS
CONCURRENT SENTENCES: Criminal sentences that can be served at the same time
rather than one after the other.
CONFLICT OF INTEREST: Refers to a situation when someone, such as a lawyer or public
official, has competing professional or personal obligations or personal or financial interests
that would make it difficult for him to fulfill his duties fairly.
CONSECUTIVE SENTENCES: Criminal sentences that must be served one after the other
rather than at the same time.
CONTEMPT OF COURT: An action that interferes with a judge's ability to administer justice
or that insults the dignity of the court. Disrespectful comments to the judge or a failure to
heed a judge's orders could be considered contempt of court. A person found in contempt
of court can face financial sanctions and, in some cases, jail time.
CONTRIBUTORY NEGLIGENCE: This is a defense to negligence claims which state that
the claimant (the person bringing the claim) contributed to the harm caused. This can
prevent or reduce a party's ability to recover his or her damages. Not all states follow this
system.
COURT OF CRIMINAL APPEALS: The highest Texas State Court adjudicating appeals for
criminal cases. Criminal appeals do not go to the Texas Supreme Court.
CROSS-EXAMINATION: The questioning of an opposing party's witness about matters
that were brought up during direct examination.
DEFAULT JUDGMENT: A ruling entered against a defendant who fails to answer a lawsuit.
DEFENDANT: The party sued by the plaintiff in civil court. The person charged with a
criminal court.
DEPOSITION: Part of the pre-trial discovery (fact-finding) process in which a witness
testifies under oath. A deposition is held out of court with no judge present, but the answers
often can be used as evidence in the trial.
DIRECT EXAMINATION: The initial questioning of a witness by the party that called the
witness.
DIRECTED VERDICT: A judge's order to a jury, at the end of a trial, to return a specific
verdict. This is usually ordered by the judge because one of the parties failed to prove its
case.
DISCOVERY: Part of the pre-trial litigation process during which each party requests
relevant information and documents from the other side in an attempt to "discover"
pertinent facts.
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LEGAL DEFINITIONS
DISMISSAL WITH PREJUDICE: When a case is dismissed for good reason and the
plaintiff is barred from bringing another action on the same claim. Generally, this is granted
when the case is decided on its merits rather than a technicality.
DISMISSAL WITHOUT PREJUDICE: When a case is dismissed but the plaintiff is allowed
to bring a new suit on the same claim.
DOUBLE JEOPARDY: Although a very involved concept, put simply, it refers to being tried
twice for the same criminal offense.
DUE PROCESS: The idea that laws and legal proceedings must be fair. The Constitution
guarantees that the government cannot take away a person's basic rights to "life, liberty or
property, without due process of law." Courts have issued numerous rulings about what this
means in particular cases.
EN BANC: French for "by the full court." When all the members of an appellate court hear
an argument, they are sitting en banc. Normally cases are heard by smaller panels of all of
the available justices.
EQUAL PROTECTION CLAUSE: Portion of the Fourteenth Amendment to the U.S.
Constitution that prohibits discrimination by state governmental institutions. The clause
grants all people "equal protection of the laws," which means that the states must apply
the law equally and cannot give preference to one person or class of persons over another.
ESTABLISHMENT CLAUSE: Portion of the First Amendment to the U.S. Constitution that
prohibits government from "establishing" a religion. This is commonly referred to as the
separation between church and state.
EX PARTE: Latin that means "by or for one party." Refers to situations in which only one
party (and not the adversary) appears before a judge. Such meetings are often forbidden,
but are common for issuing of warrants and temporary restraining orders.
EXPERT WITNESS: A witness with a specialized knowledge of a subject who is allowed to
discuss an event in court even though he or she was not present. For example, an arson
expert could testify about the probable cause of a suspicious fire.
FEDERAL COURT: Adjudicating civil matters arising under federal law (such as
constitutional claims) and civil matters between parties in different states where the amount
in controversy exceeds $75,000. Federal courts also hear criminal actions in violation of
federal law.
FELONY: Serious crime punishable by incarceration for a year or more. Felonies include
rape, murder, robbery, burglary and arson.
FIDUCIARY DUTY: An obligation to act in the best interest of a party. These duties are
only imposed in certain special relationships, like the attorney/client relationship.
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LEGAL DEFINITIONS
GARNISHMENT: Also known as wage execution. A court-ordered method of debt collection
in which a portion of a person's salary is paid to a creditor. This is often used to collect child
support payments.
GRAND JURY: A group of citizens convened in a criminal case to consider the prosecutor's
evidence and determine whether or not probable cause exists to prosecute a suspect for a
felony.
GROSS NEGLIGENCE: Failure to use even the slightest amount of care in a way which is
recklessness or willful disregard for the safety of others.
GUARDIAN AD LITEM: Latin for “guardian at law.” The person appointed by the court to
look out for the best interests of a child during the course of legal proceedings.
HABEAS CORPUS: Latin phrase meaning "you have the body." Prisoners often seek release
by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate
to a prison official ordering that an inmate be brought to the court so it can be determined
whether or not that person is imprisoned lawfully.
HEARSAY: Secondhand information that a witness only heard about from someone else
and did not see or hear himself or herself. Hearsay is not admitted in court because it's not
trustworthy, though there are many exceptions to this exclusion.
HUNG JURY: A jury that is unable to reach a verdict.
IMMUNITY: Exemption from a legal duty, penalty or prosecution.
IN CAMERA: Latin for "in chambers." This refers to a hearing or inspection of documents
by a judge that takes place in private, often in a judge's chambers.
INDICTMENT: A formal accusation of a felony, issued by a grand jury after it considers
the evidence presented by a prosecutor.
INDIGENT: Lacking in funds; poor.
INFORMATION: A formal accusation of a crime, issued by a prosecutor. This is an
alternative to an indictment.
INTERLOCUTORY ORDER: Temporary order issued during the course of litigation.
Typically, these orders cannot be appealed because they are not final.
INTERROGATORIES: Part of the pre-trial discovery (fact-finding) process in which a
witness provides written answers to written questions under oath. The answers often can
be used as evidence in the trial.
INTESTATE: To die without a will.
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LEGAL DEFINITIONS
JUDGMENT: A court's official decision on the matters before it.
JUDGMENT NON OBSTANTE VEREDICTO: Known also as a judgment notwithstanding
the verdict (JNOV). A decision by a trial judge to overturn a jury’s verdict to rule in favor of
the losing party.
JURISDICTION: A court's authority to rule on the questions of law at issue in a dispute,
typically determined by geographic location and type of case.
JURY CHARGE: The judge's instructions to the jurors on the law that is to apply in a case
and the definitions of the relevant legal concepts.
JUST CAUSE: A legitimate reason. Often used in the employment context to refer to the
reasons why someone was fired.
LESSER INCLUDED OFFENSES: Charges that contain elements of the most serious charge
against a defendant. For instance, a person charged with first-degree murder (which
requires premeditation) could be convicted of second-degree murder (a killing done without
premeditation) or manslaughter (a killing done in the heat of passion).
LIBEL: Defamatory (false and injurious) written statements or materials, including movies
or photographs.
LIQUIDATED DAMAGES: An amount of money specified within a contract that is to be
awarded in the event that the contract or agreement is violated. Normally this is done when
actual damages would be hard to calculate.
LITIGATION: The trial process to include all matters prior to trial as well as appeals.
MAGISTRATE: A judge that conducts hearings in federal court or in state criminal court.
The magistrate is generally responsible for setting bond/bail at arraignment.
MAGISTRATIZATION: The term used by criminal lawyers to describe a defendant’s right
to see a magistrate judge for a bail hearing within 48 hours after arrest.
MALPRACTICE: Improper or negligent behavior by a professional, such as a doctor or a
lawyer. The failure of a professional to follow the accepted standards of practice in his or
her profession.
MANDATORY SENTENCE: A criminal sentence set by a legislature that establishes the
minimum length of prison time for specified crimes and thus limits the amount of discretion
a judge has when sentencing a defendant.
MASTER: The state civil court’s equivalent to a federal magistrate. The master hears
motions and makes advisory rulings which the trial court judge generally accepts but may
reject.
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LEGAL DEFINITIONS
MEDIATION: A method of alternative dispute resolution in which a neutral third party
helps resolve a dispute through negotiated settlement. The mediator does not have the
power to impose a decision on the parties. If a satisfactory resolution cannot be agreed
upon, then the parties can begin or continue litigation.
MINOR: A person who does not have the legal rights of an adult. A minor is usually defined
as someone who has not yet reached the age of majority. In most states, a person reaches
majority and acquires all of the rights and responsibilities of an adult when he or she turns
18.
MIRANDA WARNING: The statement recited to individuals taken into police custody. It
warns them of their right to remain silent and to have an attorney present.
MISDEMEANOR: Crime that is punishable by less than one year in jail, such as minor theft
and simple assault that does not result in substantial bodily injury.
MOTION FOR A NEW TRIAL: Request for a new trial done by a losing party who asserts
that the original trial was unfair due to legal errors that prejudiced its case.
NEGLIGENCE: A failure to use the degree of care that a reasonable person would use
under the same circumstances.
PAROLE: A system for the supervised release of prisoners before their prison terms are
over. Congress has abolished parole for people convicted of federal crimes, but most states
still offer parole.
PENALTY PHASE: The second part of a bifurcated trial, in which the jury hears evidence
and then decides on what penalties or damages to impose.
PERJURY: A crime in which a person knowingly makes a false statement while under oath
in court. In some jurisdictions, making a false statement in a legal document can also be
considered perjury.
PETIT JURY: The jurors empaneled to hear a civil or criminal trial typically consisting of
six or twelve jurors. They are different from a grand jury.
PETITION: A written application to the court asking for specific action to be taken.
PLAINTIFF: The person who initiates a lawsuit.
PLEA BARGAIN: A negotiated agreement between the defense and the prosecution in a
criminal case. Typically the defendant agrees to plead guilty to a specified charge in
exchange for an oral promise of a lower sentence.
PLEADINGS: In a civil case, the allegations by each party of their claims and defenses.
POWER OF ATTORNEY: The authority to act legally for another person.
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LEGAL DEFINITIONS
PREPONDERANCE OF THE EVIDENCE: The level of proof required to prevail in most civil
cases. The judge or jury must be persuaded that the facts are more probable one way than
another.
PRIMA FACIE: Latin for "at first view." Refers to the minimum amount of evidence a
plaintiff must have to avoid having a case dismissed.
PRIVILEGED COMMUNICATION: Conversation that takes place within the context of a
protected relationship, such as that between an attorney and client, a husband and wife, a
priest and penitent and a doctor and patient. The law often prevents forced disclosure of
such conversations.
PRO SE: (pronounced "pro say") Latin phrase that means "for himself." A person who
represents himself or herself in court alone without the help of a lawyer is said to appear
pro se.
PROBABLE CAUSE: A reasonable belief that a person has committed a crime.
PROBATION: Sentence imposed for commission of a crime whereby a convicted criminal
offender is released into the community under the supervision of a probation officer in lieu
of incarceration. This is different from parole in that the person is not incarcerated prior to
or pending successful completion of the probationary period.
PROTECTIVE ORDER: In litigation, an order that prevents the disclosure of sensitive
information except to certain individuals under certain conditions. In a domestic dispute,
an order that prevents one party from approaching or being near another, often this is a
specified distance.
PUNITIVE DAMAGES: Money awarded to a victim that is intended to punish a defendant
and stop the person or business from repeating the type of conduct that caused an injury.
Also used and intended to deter others from similar conduct.
REAL PROPERTY: Land and all the things that are attached to it.
REASONABLE CARE: The level of care a typical person would use if faced with the same
circumstances.
REASONABLE DOUBT: The level of certainty a juror must have to find a defendant guilty
of a crime. This is doubt, based on reason and common sense after impartial consideration
of all the evidence in a case.
REMAND: When an appellate court sends a case back to a lower court for further
proceedings.
REPLEVIN: Repossession. Action taken by a creditor to seize the assets of a debtor.
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LEGAL DEFINITIONS
RIGHT AGAINST SELF-INCRIMINATION: Granted by the Fifth Amendment of the
Constitution. This allows a person to refuse to answer questions that would subject him or
her to the possibility of prosecution. This can only be asserted in criminal cases.
RIGHT OF EMINENT DOMAIN: The government's right to acquire private property for
public use in exchange for just compensation.
SECURITY AGREEMENT: A contract between a lender and borrower that states that the
lender can repossess the property a person has offered as collateral if the loan is not paid
as agreed.
SERVICE OF PROCESS: The act of notifying the other parties that an action has begun
and informing them of the steps that they should take in order to respond. This is usually
done by a process server who has a citation and “serves” the sued party with the petition
or complaint.
SLANDER: Defamatory (false and injurious) oral statements or gestures.
STANDARD OF CARE: The degree of care a reasonable person would take to prevent an
injury.
STANDING: The legal right to initiate a lawsuit.
STATUTE: A codified law enacted by a governing body.
STATUTES OF FRAUD: Laws in most states to protect individuals from false claims for
payment on contracts that were not agreed upon. The specific laws vary from state to state,
but most require that certain contracts be in writing.
STATUTES OF LIMITATIONS: Laws setting deadlines for filing lawsuits within a certain
time after events occur that are the source of a claim.
STRICT LIABILITY: Liability even when there is no proof of negligence. This is often
applicable in product liability cases and cases involving inherently hazardous activity and/or
material.
SUBPOENA: An order compelling a person to appear to testify or produce documents.
TRUE BILL: A grand jury finding that probable cause exists against a person accused of a
crime.
TRUST: Property given to a trustee to manage for the benefit of a third person. Generally
the beneficiary gets interest and dividends on the trust assets for a set number of years.
TRUSTEE: Person or institution that oversees and manages a trust.
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LEGAL DEFINITIONS
UNIFORM COMMERCIAL CODE: A model statute covering things such as the sale of
goods, credit, and bank transactions. All states have adopted and adapted the entire UCC,
with the exception of Louisiana, which only adopted parts of it.
UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT: Law that allows an order
of child support issued in one state to be enforced in another state.
UNJUST TAKING: When the government acquires private property and fails to compensate
an owner fairly. A taking can occur even without the actual physical seizure of property,
such as when a government regulation has substantially devalued a property.
VENUE: Location of the actual trial.
VOIR DIRE: A French phrase that means "to speak the truth." This is the process of
interviewing and asking questions of prospective jurors. Pronounced "vwa dear" in French
but use "vwa di-ar" or “vor di-ar” in Texas.
WRIT: A judicial order.
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