September-October 2011 2011-2012 SABA President Gary W

Transcription

September-October 2011
2011-2012 SABA President Gary W. Hutton
Stanley Rosenberg, The Family Solicitor
Legislative Bills Impacting San Antonio
Privacy Protection in Electronically Filed Information
Luke Soules, A Courtroom Lawyer, Part III
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6
8
Departments
Features
6
8
5
The Family Solicitor
By Patrick Autry
The 2011 Texas Legislative
Session & Bills Impacting
San Antonio
By Rob Killen & Ashley Farrimond
14
Privacy Protection in
Electronically Filed Information
By James A. Rodriguez
16
A Courtroom Lawyer, Part III
By Luther H. Soules III
14
President’s Page
Incoming SABA President,
Gary W. Hutton
By Jennie Badger
13
Fourth Court Update
Justice Delayed is Justice
Denied; Justice Hurried
is Justice Buried
By Justice Steven C. Hilbig
20
Federal Court Update
By Hon. Nancy Stein Nowak,
Soledad Valenciano, and Melanie Fry
16
On the Cover:
Gary W. Hutton, 2011-2012 President
of the San Antonio Bar Association
and Chair of the San Antonio Bar
Foundation.
Cover photo courtesy of Hugh Leighton
McWilliams Photography
San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address above. Views expressed in San Antonio Lawyer
are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or
service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to [email protected]. Copyright
©2011 San Antonio Bar Association. All rights reserved
San Antonio Lawyer
3
Lawyer
San Antonio
The San Antonio Bar Association
100 Dolorosa, San Antonio, Texas 78205
210.227.8822
Fax: 210.271.9614
Officers/Directors
President
Gary W. Hutton
President-Elect
Andrew L. Kerr
Vice President
Justice Rebecca Simmons
Secretary
Tom g. Keyser
Treasurer
James M. “Marty” Truss
Immediate Past President
Justice Phylis J. Speedlin
Directors
Robert J. Barrera
Robert “Rusty” Biechlin, Jr.
C. Lee Cusenbary
Sara E. Dysart
Laura L. Parker
Dan J. Vana
Beth Watkins
Patricia Wueste
Mexican American
Bar Association
Richard Loza
San Antonio Bar
Foundation
Wade B. Shelton
San Antonio Young
Lawyers Association
Santos Vargas
State Bar
of Texas Directors
Sylvia A. Cardona
Allan K. DuBois
Bexar County Women’s
Bar Association
Laura C. Mason
Executive Director
Jimmy Allison
San Antonio Black
Lawyers Association
Sonja D. Sims
Get connected. Get involved.
SABA offers opportunities for professional development through its
various sections, including Alternative Dispute Resolution (ADR), Appellate Law, Construction Law, Consumer & Commercial Law, Elder Law, Environmental Law, Family Law, Immigration & Naturalization Law, International
Law, Litigation Law, Natural Resources and Real Estate Law. These sections are individual organizations of SABA that the lawyers themselves
form to enhance knowledge in a particular area of law. Most sections
meet every month and provide MCLE credit for their meetings.
For more information, visit www.sabar.org.
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Outgoing SABA President Justice Phylis Speedlin invited Jennie Badger, Executive
Director of the San Antonio Bar Foundation, to introduce us to our incoming President.
By Jennie Badger
B
ecoming a lawyer was just
part of Gary Hutton’s DNA.
The incoming San Antonio Bar
Association President says he
was surrounded by attorneys
when he was growing up in Dayton, Ohio.
“My dad, his first cousin and
an uncle were all lawyers,” says
Hutton. “I worked in my dad’s firm
in the summers and he would take
me to court with him sometimes.”
That experience, combined with
his 2-year stint in El Paso working
in a pre-trial diversion program
for misdemeanor offenders, was
integral to Hutton’s decision to
attend law school. “I watched how
the attorneys represented their
clients and I thought I could do a
better job,” he explains.
Hutton’s path in the legal
profession since his 1978 graduation
from St. Mary’s University School of
Law has been anything but typical.
Aware that Hutton was an avid sports
participant and fan, Charlie Butts,
Hutton’s criminal law professor,
recommended that he apply for an
open position with Stolhandske,
Simmons & Stolhandske. “Tom
(Stolhandske) had been a football
player at the University of Texas and
with the San Francisco 49ers,” Hutton
explains. “The guys at the firm played
tennis or worked out during the lunch
hour. Charlie thought that would be a
good fit for me.”
Hutton got the job and was quickly
integrated in the world of Bexar County
politics. It did prove to be a good fit.
Ironically, Hutton left after a year to
work with the Indiana Pacers basketball
organization. When management
changed, he found himself back in San
Antonio with the San Antonio Dodgers
minor league baseball team. He next
had the opportunity to manage a minor
league baseball team in Portland,
Oregon — all within a one-year period.
The travel became tiresome so
Hutton opened his own firm in San
Antonio, office-sharing with the Biery
firm and working on family and criminal
law cases, as well as general litigation.
“I really enjoyed that time,” adds
Hutton. “The lawyers in the Biery firm
were very professional and generous
with their time. Even though I had my
own firm, I enjoyed the opportunity to
bounce ideas off of them.”
Hutton’s solo practice lasted 15 years.
Hutton admits he misses certain aspects,
especially the feeling of having resolved
the problems of individual clients but
service to the larger community called.
For eight years, he served as Justice of
the Peace for Precinct 2. He currently is
the General Administrative Counsel for
the Bexar County Civil District Courts.
In addition to the desire to practice
law, Hutton’s father ingrained in him
the importance of becoming involved
in civic and charitable organizations.
“My dad was always involved in his
local Bar Association and other civic
organizations. As a new lawyer,” he
San Antonio Lawyer
5
says, “I joined SABA to meet people and
get my name out in the community.”
And it turned out that he enjoyed it.
As for running for SABA president:
Hutton good-naturedly says that
he was “conned into it” by SABA
Executive Director, Jimmy Allison. “He
told me I would enjoy being a Past
President and left out everything
else,” Hutton says, laughing.
On a more serious note, Hutton
says that as SABA President,
he wants to reach out and get
more lawyers involved. “There is
always a group that feels the Bar
doesn’t reach its needs,” he says,
adding that he wants to build on
what has been established, “SABA
has been doing a better job of that
recently with our veterans and
mentoring programs.”
Hutton will be the first SABA
President to serve concurrently
as Chair of the San Antonio Bar
Foundation, which voted this
year to consolidate the boards
of SABA and the SABF. “That is
really a natural progression,”
he explains. “It is a change that
will streamline the events and
fundraisers and make better use
of the funds that are raised.”
Married to wife, Dee Dee for 22 years,
Hutton has two children, Molly and
Tim. Notwithstanding all of his various
interests, his favorite pastime is clearly
being a grandfather to three-year-old
Kate and six-year-old Grace. “Grandkids
absolutely love you,” he smiles. “They
don’t realize your imperfections.”
Jennie Badger currently
serves as Executive Director
for the San Antonio Bar
Foundation. She received
her undergraduate degree
from Trinity University
and is a 1993 graduate
of St. Mary’s University
School of Law.
President’s Page
Incoming SABA President, Gary W. Hutton
The Family Solicitor
By Patrick Autry
T
he name “Stanley Rosenberg”
and the term “deal” are virtually
synonymous. In San Antonio in the
1970s and early 1980s if there was a
real estate project coming out of the
ground, on the board, or merely forming in
the minds of potential investors, the chances
were excellent that Stanley Rosenberg was
representing one of the players, personally
involved in it, or both. Much has changed
in the profession since Jesse Oppenheimer
invited Rosenberg to join Lang, Cross,
Ladon and Oppenheimer. Yet it remains
difficult to imagine a profession better
suited to one who enjoys so much being a
friend, confidant, advisor, and investor.
It was wartime San Antonio in the
1940s. Abe Rosenberg and his brother
owned a Houston Street business called
Sol Frank & Company — an enterprise that
sold fine men’s clothes as well as military
and band uniforms. That’s where Abe’s
son, Stanley, learned to listen to customers,
discern what they wanted, and sell it to
them. Houston Street was a retail paradise
dotted with stores like Kress, Woolworth,
and Vogue. “Being a salesman is a great
background for being an attorney,”
remarks Rosenberg. “I like people and
I know what they want.” But his mother
nixed a career in retail, and that’s why he
went to Austin and law school.
The 5-foot, 11½ inch, 205-pound
Rosenberg lettered in both freshman
tennis and football at the University
of Texas. He and friend Gerald Silber
helped pay for college by cleaning the
university’s clay tennis courts. Rosenberg
completed the school’s combined five-year
undergraduate and law program in 4½
years, and his participation in Reserved
Officers Training earned him a commission
in the Air Force. He honored his two-year
military commitment as a JAG officer
stationed at Keesler AFB in Biloxi, arriving
at his post as one of the first servicemen to
fly as a passenger in a jet plane.
About that time he began to correspond
with Jesse Oppenheimer in San Antonio
and following military duty he joined
Lang, Cross, Ladon, and Oppenheimer.
Starting pay was $300 a month. “Sylvan
Lang was brilliant. He owned the Milam
Building, the Frost Brothers building and
the Medical Arts Building [now known as
the Emily Morgan Hotel]. He also owned
the bus company and the firm defended
it,” Rosenberg recalls. The firm was home
to many prominent attorneys, including
name partners Sylvan Lang, Dalton Cross,
Bernard Ladon, and Jesse Oppenheimer,
as well as Neil Boldrick, Paul Green, Perry
Davis, Stephen Lang, and Ben Foster.
Early in his career (1956) Stanley
Rosenberg met Tom Benson. At the time
Benson worked for Mike Persia, a substantial
Chevrolet dealer with his principal
dealership in New Orleans. Benson, a New
Orleans native himself, managed Persia’s
San Antonio operations. Rosenberg handled
a small legal matter. The two clicked. Not
long thereafter Benson began to realize
his own aspirations when he bought out
Persia’s interest in the business. Rosenberg
represented Benson in that transaction and
the personal and business relationships
San Antonio Lawyer
6
between them flourished thereafter.
After many years, Oppenheimer and
Rosenberg determined to leave the Lang
firm and start their own. What began with
the two of them eventually became a local
legal powerhouse that counted among its
attorneys Ray Schneider, Ben Foster, Jr.,
Luke Soules, Herb Kelleher, and a former U.
S. Attorney named Seagal Wheatley. In 1983
the firm name was Oppenheimer, Rosenberg,
Kelleher & Wheatley, with the office in the
Travis Park Building. Rosenberg recalls that
he and Pat Gardner (a competitor, but a “total
gentlemen” in Rosenberg’s words) were, at
that time, probably the two most prominent
real estate attorneys in San Antonio.
The late 1980s were challenging times
for San Antonio real estate investments.
Values dropped precipitously, taking many
partnerships and financial institutions
down with them. The forces at work in
those years ultimately led Rosenberg to
separate from the firm that he and Jesse
Oppenheimer had founded many years
earlier. “An eccentric genius — and very
adept at handling real estate deals,” says
friend and former partner Herb Kelleher. It
was his “skill and resilience” that allowed
him to survive in the 1980s intact, Kelleher
observed. When asked what he thought
Rosenberg was most proud of, Kelleher
offered that “[h]e is very proud of his firms.”
Consequently it was no surprise that
upon leaving the Oppenheimer firm,
Rosenberg (together with Tim Tuggey, Bobby
Rosenthal, and Ruth Kelleher Agather) would
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The 2011 Texas
Legislative Session
& Bills Impacting
San Antonio
By Rob Killen & Ashley Farrimond
T
he Texas Legislature recently
completed its work for 2011.
During the 140 days of the 82nd
Legislative Regular Session, the
Texas House and Texas Senate
considered a number of bills with potential
impacts in the San Antonio area. The Bexar
County delegation and local business and
political leaders spent a significant amount
of time debating bills related to the Bexar
Metropolitan Water District (BexarMet),
the City South Management Authority,
and tree preservation in a municipality’s
extraterritorial jurisdiction. In addition to
these high profile bills, there were several
other bills of local interest.
The Texas Constitution allows the
Texas Legislature to meet for 140 days
every odd-numbered year. The governor
can call a special session for up to 30 days
to address issues specifically designated
by the governor. During this relatively
short period, the legislature considers
hundreds of bills, only a handful of which
become law. For the 2011 session, 5795
bills were introduced, but only slightly
less than 1400 survived the committees,
the House, the Senate and avoided a veto
by the governor to become law.
Many of these bills had strong
advocates on each side. However,
powerful lobbying efforts are not always
a predictor of the outcome. As California
politician Jesse Unruh advised fellow
legislators about lobbyists: “if you can’t
eat their food, drink their booze, screw
their women and then vote against them,
you have no business being up here.”1
Sales Price Disclosure
Several bills were introduced
concerning sales price disclosures. Senate
Bill 299 proposed penalizing individuals
who failed to disclose the sales price of real
property on an instrument conveying the
property under a contract for sale when filed
or recorded with the County Clerk’s Office.2
Violation of the requirement to
disclose would result in a civil penalty
equal to five percent of the sales price of
the property.3 The bill failed to receive a
hearing in the Senate Intergovernmental
Relations Committee and will not
become law.4
House Bill 666 would have required
the Texas comptroller to conduct a study
examining the impact of mandatory
Lou Cannon, Governor Reagan: His Rise to Power, 166 (1st ed. 2003).
Tex. S.B. 299, 82nd Leg., R.S. (2011).
3
Id.
4
Texas Legislature Online, Bill Stages (available at www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=82R&Bill=SB299) (accessed July 19, 2011).
1
2
San Antonio Lawyer
8
disclosures of sale prices of real property
on the property tax system, property tax
revenues, and the allocation of property
burdens among taxpayers.5 This bill did
not receive a hearing in the House Ways
and Means Committee and will not
become law.6
Buses on Shoulders
House Bill 2327 and Senate Bill
1102 proposed allowing transit buses
to use highway shoulders to pass traffic
backups during peak traffic hours in
certain urban counties, including Bexar.7
The Bill passed the House and the
Senate, but was vetoed by Governor
Rick Perry.8 Under current law,
highway shoulders are only to be
used in emergency situations or by
emergency vehicles.9 Governor Perry
felt that removing the “emergencyonly” status of highway shoulders
would confuse drivers, and endanger
motorists, emergency personnel, and
transit bus passengers.10
Tree Preservation
Several bills were filed that directly
related to municipal authority to impose
ordinances regulating tree preservation
and planting. Two of the bills were
linked to a local ordinance and recent
litigation challenging that ordinance.
House Bill 1388 and Senate Bill
732 would have prohibited cities from
enforcing tree preservation and planting
ordinances in a city’s extraterritorial
jurisdiction (ETJ). These bills did not pass,
leaving the City of San Antonio (City)
Tree Ordinance enforceable in the ETJ.
The City’s Tree Ordinance has been
in effect both inside the City limits and
in the ETJ since it became effective in
1997. In Milestone Potranco v. City of
San Antonio, a local developer filed
suit to challenge the enforceability of
the Tree Ordinance in the ETJ.11 The
City maintained the Tree Ordinance
was a subdivision ordinance, and the
state statute permits the City to extend
subdivision regulations into the ETJ.12
The general purpose of a municipality’s
ETJ is “to promote and protect the general
health, safety, and welfare of persons residing
in and adjacent to the municipalities.”13
Municipal power is extremely limited in
the ETJ, and requires a constitutional or
statutory grant of authority.14
In 2001, the Dallas Court of Appeals
noted that “[a] city is statutorily prohibited
from regulating land use and construction
on property in its ETJ; a city may apply
only its subdivision ordinances to such
property.”15 This is true even for a home
rule city, such as San Antonio.16
The City derives its power to regulate
property development in the ETJ from the
Texas Local Government Code. Chapter
212 allows a municipality to “adopt rules
governing plats and subdivisions of land
within the municipality’s jurisdiction
to promote the health, safety, morals, or
general welfare of the municipality and the
safe, orderly, and healthful development
of the municipality.”17 Section 212.003
permits the extension of these rules to the
ETJ with certain limitations.18
Tex. H.B. 666, 82nd Leg., R.S. (2011).
Texas Legislature Online, Bill Stages (available at www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=82R&Bill=HB666) (accessed July 19, 2011).
7
Tex. H.B. 2327, 82nd Leg., R.S. (2011); Tex. S.B. 1102, 82nd Leg., R.S. (2011).
8
Veto Message of Gov. Perry, Tex. H.B. 2327, 82nd Leg., R.S. (2011).
9
Id.
10
Id.
11
Milestone Potranco Dev. v. City of San Antonio, 298 S.W.3d 242, 243 (Tex. App.—San Antonio 2009), review denied (Jan. 15, 2010), reh’g
overruled (July 22, 2009).
12
Id.
13
Tex. Local Gov’t Code, § 42.021 (West 2010).
14
See Tex. Atty. Gen Op. No. LO-97-055 (1997).
As a general rule, a city can exercise its powers only within the city’s corporate limits unless power is expressly or impliedly extended by the
Texas Constitution or by statute to apply to areas outside the limits. Extraterritorial power will be implied only when such power is reasonably
incident to those powers expressly granted or is essential to the object and purpose of the city.
…
No specific purpose for extraterritorial jurisdiction is provided in chapter 42, and courts have not interpreted chapter 42 as allowing general
extraterritorial enforcement of city ordinances. Instead, courts have allowed cities to enforce ordinances in their extraterritorial jurisdiction
only if expressly authorized to do so by other specific statutes. … [C]hapter 42 alone does not give the city the express authority to enforce
its ordinances in areas of [the county] that lie beyond the city’s boundaries.
See also PPC Enterprises, Inc. v. Texas City, 76 F. Supp. 2d 750 (S.D. Tex. 1999) (holding that extension of an ordinance prohibiting firework sales
within a city’s ETJ was enforceable because it was specifically permitted by statute).
15
Levy v. City of Plano, 2001 WL 1382520 (Tex. App.—Dallas 2001).
16
Article XI, section 5 of the Texas Constitution, and Chapter 51 of the Texas Local Government Code, grant a home rule municipality, such
as the City of San Antonio, broad police powers. However, “[a] home rule city must have express or necessarily implied statutory authority to
exercise power outside its boundaries.” Tex. Atty. Gen. Op. No. JM-226 (1984).
17
Tex. Local Gov’t Code § 212.002.
18
Tex. Local Gov’t Code § 212.003.
(a) The governing body of a municipality by ordinance may extend to the extraterritorial jurisdiction of the municipality the application
of municipal ordinances adopted under Section 212.002 …. However, unless otherwise authorized by state law, in its extraterritorial
jurisdiction a municipality shall not regulate:
1) the use of any building or property for business, industrial, residential, or other purposes;
2) the bulk, height, or number of buildings constructed on a particular tract of land;
3) the size of a building that can be constructed on a particular tract of land, including without limitation any restriction on the ratio of
building floor space to the land square footage;
4) the number of residential units that can be built per acre of land; …
5
6
San Antonio Lawyer
9
At issue in Milestone Potranco was
whether the City’s Tree Ordinance was a
subdivision ordinance, and whether tree
preservation was the proper subject of a
subdivision ordinance.
The San Antonio Court of Appeals
considered the City’s argument that
the Tree Ordinance was a subdivision
ordinance and properly enforceable in
the ETJ and ruled in favor of the City.19
The court concluded that the Tree
Ordinance is an appropriate subdivision
ordinance:20 “We conclude the Tree
Ordinance was properly adopted by
the City under section 212.002 of the
Code, and the City was permitted to
extend the Tree Ordinance to the City’s
ETJ pursuant to section 212.003 of the
Code.”21 The Texas Supreme Court
denied the petition for review, leaving
the Court of Appeals ruling as the final
word on this issue.22
House Bill 1388 and Senate Bill 732,
if passed, would have reversed the effect
of this decision by revising Chapter 212
of the Texas Local Government Code to
prohibit municipalities from regulating
“the planting, clearing, or harvesting of
trees or vegetation or other uses of trees
or vegetation on a particular tract of land”
in the ETJ.23 San Antonio’s Tree Ordinance
would no longer be enforceable in the ETJ.
These bills were the subject of strong
opposition by the City.24 Members of
the Bexar County legislative delegation
believed that these bills were aimed at
San Antonio.25 Both HB 1388 and SB 732
passed out of their respective committees
but did not make it to the floor for
debate.26 State Senator Troy Fraser
added a similar provision to House Bill
1665 that prompted significant debate
and procedural battles on the Senate
floor.27 Ultimately, the amendment to
HB 1665 did not survive.28
Since the end of the session, the City of
Bulverde has revised its Tree Ordinance,
changing it from a zoning regulation to a
subdivision ordinance and extending its
enforcement into Bulverde’s ETJ.29
City South Management Authority
The City South Management Authority (CSMA) was created by the City
of San Antonio on May 19, 2005 using
enabling legislation adopted during the
2003 Legislative Session.30 The CSMA is an
entity with zoning and land use regulatory
authority and “was created to oversee the
compatible land uses within its boundaries
and to support the vision of the … Heritage
South Sector Plan.”31 However, concerns
with the CSMA prompted the filing of two
bills, one which would have dissolved the
CSMA, and the other would revise the
powers of the CSMA board. The dissolution
bill did not pass, but the governance bill
was approved and has become law.32
In 2003, during the 78th Regular
Session, the Legislature approved
legislation which allowed for the creation
of Defense Adjustment Management
Authorities (DAMA).33 A DAMA has a
number of municipal powers, including
zoning and subdivision regulatory
authority within areas of the DAMA
outside city limits.34 The DAMA legislation
was codified as Chapter 375, Subchapter
O of the Texas Local Government Code.
The creation of the CSMA was
prompted by new projects occurring
within the southern areas of Bexar County
that were outside the regulatory authority
of the City.35 Such projects include the
Toyota plant and the Texas A&M San
Antonio campus.36 The City created a set
Milestone Potranco, 298 S.W.3d at 243.
Id.
We believe the Tree Ordinance is more than simply an aesthetic regulation. Instead, the Tree Ordinance was intended to, and does, regulate
tree preservation to promote the health of the municipality and the orderly and healthful development of the community. Therefore, we
conclude that the Tree Ordinance is a rule “governing plats and subdivisions of land” that the City was authorized to adopt under section
212.002 of the Code.
21
Id.
22
Id.
23
Tex. H.B. 1388, 82nd Leg., R.S. (2011); Tex. S.B. 732, 82nd Leg., R.S. (2011).
24
Josh Baugh, Bill Would Limit City’s Enforcement of Tree Ordinance, San Antonio Express News, Mar. 24, 2011, www.mysanantonio.com/
default/article/Bill-would-limit-city-s-enforcement-of-tree-1280865.php.
25
See e.g., Trey Martinez, Tree Ordinance Is a Local, Not a State Issue, San Antonio Express News, Apr. 20, 2011, www.mysanantonio.com/
default/article/Tree-ordinance-is-a-local-not-a-state-issue-1343909.php (“San Antonio is the intended target of the legislation because it is one of
only two Texas cities that have adopted tree ordinances in their ETJ”).
26
Texas Legislature Online, Bill Stages (available at www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=82R&Bill=HB1388) (accessed
July 19, 2011).
27
Joe Holley, City Hopes House Rules Can Save Tree Ordinance, San Antonio Express News, May 26, 2011, www.mysanantonio.com/news/
local_news/article/Senate-approves-bill-endangering-SA-s-tree-1389319.php (“This bill is saying that if you’re in the ETJ of a city, you can’t vote
for the city council people, you’re not paying taxes, you’re not using city services, you do not live in the city, the city does not have the right to
tell you what you can do with the vegetation on your property”).
28
Texas Legislature Online, Actions (available at www.legis.state.tx.us/BillLookup/Actions.aspx?LegSess=82R&Bill=HB1665) (accessed July
19, 2011).
29
Eric Weilbacher, City Council Votes for Separate Tree Ordinance, San Antonio Express News, Jun. 16, 2011, www.mysanantonio.com/
default/article/City-Council-votes-for-separate-tree-ordinance-1425420.php.
30
City South Management Authority, CSMA Background (available at www.sanantonio.gov/citysouth/csmabackground.asp) (accessed July 19, 2011).
31
Id.
32
Tex. S.B. 1207, 82nd Leg., R.S. (2011)(changing CSMA Board) and Tex. S.B. 1645, 82nd Leg., R.S. (2011) (dissolving the CSMA).
33
Tex. S.B. 1565, 78th Leg., R.S. (2003). Texas H.B. 3195, 78th Leg., R.S. (2003).
34
Id.
35
G. Garcia, City South Growth Will Be Regulated, San Antonio Express News, Jun. 15, 2007, www.sanantonio.gov/citysouth/
Media/06_15_07cs.pdf.
36
Id.
19
20
San Antonio Lawyer
10
of zoning regulations for development
within City South and gave authority to
CSMA to enforce such regulations. As
created, the CSMA was governed by a
fifteen-member Board of Directors: six
appointed by the City; six appointed by
Bexar County; and three appointed by the
school districts in the area.37
Senate Bill 1645, filed during the 2011
legislative session, would have repealed
Chapter 375, Subchapter O of the Texas
Local Government Code. The Senate
Research Center Bill Analysis described
the reasons for the proposed repeal.
The creation of the authority
was intended for the purposes of
fostering economic opportunity, job
generation, and capital investment
by promoting a favorable business
climate, preparing the workforce
for productive employment, and
supporting infrastructure development in areas around defense bases
that are intended to be annexed by
the municipality.
…
The only entity created as a result
of this legislation — the City South
Management Authority (CSMA) in
southern Bexar County — has drawn
numerous complaints from property
owners and potential developers as
detrimental to the stated purpose of
the legislation — fostering economic
opportunity, job generation, and
capital investment by promoting
favorable business climate. The
City of San Antonio created CSMA
with a limited-purpose annexation
of a 63-square-mile area. The
15-member CSMA board adopted
a plan with associated land-use
components and zoning districts
that aims to promote development
of compact, walkable, mixed-use
neighborhoods, concentrated at the
intersections of major roads, while
preserving much of area’s rural,
agricultural character. Critics say
that the authority’s restrictive zoning
and design rules have hamstrung
development because most of the
territory cannot be developed into
traditional neighborhoods, which
they say drive commercial and
retail development. Developers and
landowners complain about the
City South zoning rules which they
say limit large, dense developments
within its boundaries. The two
largest zoning categories within
City South are “farm and ranch”
and “rural development,” which
between them make up one-half or
more of the total area of City South.
Farm and ranching zones allow for
one house per 25 acres, and Rural
Development allows one house per
acre. Furthermore, the landowners
have no ability to vote for those
who make decisions on the zoning
of their property.38
Senate Bill 1493, also filed during the
2011 session, was drafted to amend
the composition and qualifications
of the Board of Directors.39 SB1493
reduces the Board of Directors to twelve
members: four appointed by the city;
four appointed by the county; and three
appointed by the school districts in the
area.40 SB1493 also requires that three
of the directors appointed by a city and
three of directors appointed by a county
live or own property in the DAMA.
Finally, SB1493 requires a DAMA to
prepare a report on the effectiveness of
the DAMA and submit such report to the
legislature every even-numbered year.41
Senate Bill 1645 was not approved
by the Legislature.42 However, Senate Bill
1493 was approved and became law.43
BexarMet
An item on the Texas Legislative
agenda for the past several sessions
has been the management, operation,
and ultimate dissolution of the Bexar
Metropolitan Water District. BexarMet
was created by the Texas Legislature in
1945 and currently serves approximately
91,000 residential and commercial
accounts in Bexar, Comal, Medina, and
Atascosa Counties.44
Due to accusations of unethical
conduct, fiscal mismanagement, and illegal
business practices, as well as customer
complaints, the 80th Legislature in 2007
passed House Bill 1565 creating the Bexar
Metropolitan Water District Oversight
Committee (Oversight Committee).45
In January of 2009, the Oversight
Committee issued its report to the
81st Texas Legislature recommending,
amongst other things, a conservatorship
for the district.46 Senate Bill 2440 was
introduced to the 81st Legislature and
attempted to follow the recommendation
of the Oversight Committee to install a
conservator and also provided BexarMet
voters the right to dissolve the district. 47
The House and Senate could not reach
an agreement on the final language of
the bill, so it failed to become law.48
After several sessions of unsuccessful
legislation, the 82nd Legislature reconsidered the fate of BexarMet, and was
successful in passing two bills amending
the enabling legislation for the district.49
SB271 changes eligibility, ethics, and
training requirements for BexarMet’s
Board of Directors and increases the
number of directors from five to seven.50
SB271 also created additional positions
Tex. S.B. 1105, 79th Leg., R.S. (2004).
House Comm. On Veterans Affairs & Military Installations, Bill Analysis, Tex. S.B. 1645, 82nd Leg., R.S. (2011).
39
Tex. S.B. 1493, 82nd Leg., R.S. (2011).
40
Id.
41
Id.
42
Texas Legislature Online, Actions (available at www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=82R&Bill=SB1645) (accessed July 19, 2011).
43
Texas Legislature Online, Actions (available at www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=82R&Bill=SB1493) (accessed July 19, 2011).
44
House Research Org., Bill Analysis, Tex. S.B. 341, 82nd Leg., R.S. (2011).
45
Joint Committee on Oversight of Bexar Metropolitan Water District., Report to 81st Texas Legislature, 1-9-2009
46
Id.
47
Tex. S.B. 2440, 81st Leg., R.S. (2009).
48
Texas Legislature Online, Actions (available at www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=SB2440) (accessed July 19, 2011).
49
See Tex. S.B. 271, 82nd Leg., R.S. (2011); Tex. S.B. 341, 82nd Leg., R.S. (2011).
50
Tex. S.B. 271, 82nd Leg., R.S. (2011).
37
38
San Antonio Lawyer
11
2011 Texas Legislative Session (cont.)
on the Oversight Committee and
requires a report on the district to be
issued by the Oversight Committee
before December 31, 2012.51 On January
1, 2013 the Oversight Committee will
be abolished.52
The Legislature was also successful
in passing Senate Bill 341 authorizing
BexarMet ratepayers to vote on the
dissolution of the district.53 On the
next uniform election date, BexarMet
ratepayers will vote on whether to
dissolve the district and become
San Antonio Water System (SAWS)
customers, or continue as BexarMet
customers.54 If the ratepayers approve
the dissolution, SAWS will have five
years to fully integrate BexarMet’s
infrastructure and services into its
system.55 If BexarMet is not dissolved,
the district will continue in operation.56
Since the passage of Senate Bills
341 and 271, BexarMet has filed suit
in federal court under Section 5 of
the Voting Rights Act of 1965. Section
5 freezes changes in voting for certain
states until the new procedures are
found to have neither a discriminatory
purpose nor effect, as determined
by either administrative review by
the United States Attorney General
or pursuant to a lawsuit before the
United States District Court for the
District of Columbia.
On July 5, 2011, the Texas Secretary of
State also submitted the bills for review
by the United States Department of
Justice (DOJ). The DOJ has up to 60
days to review the submission and
may ask for additional information and
up to an additional 30 days, however
the SOS has requested expedited
consideration. As of the writing of this
article, there has been no ruling.
Rob Killen is a
shareholder with
Kaufman & Killen,
Inc., specializing in
governmental relations,
land use law and
economic development.
Ashley Farrimond is an
associate attorney with
Kaufman and Killen,
Inc., specializing in
zoning and land use law.
Id.
52
Id.
53
Tex. S.B. 341, 82nd Leg., R.S. (2011).
54
Id.
55
Id.
56
Id.
51
San Antonio Lawyer
12
By Justice Steven C. Hilbig
I
am frequently asked how long
it takes to resolve a case in
the Fourth Court of Appeals.
Unfortunately, there is no simple
answer to this question because
the data collection system used by the
courts of appeals does not permit an
easy calculation of the time required to
dispose of the different types of cases.
We all agree that one component
of our courts system should be a
timely dispensation of civil or criminal
justice. The Texas Legislature has
not mandated timelines, but it has
established several “performance
measures” for the courts of appeals.
As explained by Chief Justice Stone in
her report on the court for Fiscal Year
2010-2011,1 the Legislature considers
the clearance rate (the ratio of cases
disposed during the fiscal year to the
number of cases filed), the percentage
of cases under submission (formally
set on the court’s docket) for less than
one year, and the percentage of cases
resolved within two years of filing. In
Fiscal Year 2010-2011, the Fourth Court
compared favorably to the averages
for all the courts of appeals using these
metrics. Our clearance rate was 102.7
percent, versus the average of 102.2
percent; we resolved 100 percent of our
submitted cases in less than one year,
versus the average of 97.3 percent; and
99.8 percent of our cases were disposed
of within two years of filing, versus
the average of 98.7 percent. The Office
of Court Administration also tracks
the average time from the date of filing
to disposition. In Fiscal Year 20102011, the average for all courts was 9.1
months. The Fourth Court’s average
time was 6.09 months. However, this
metric takes into account all matters
disposed of by the court, including
original proceedings and appeals that
are dismissed or disposed of shortly
after filing because of jurisdictional or
other issues.
In an effort to provide a more helpful
answer to the original question posed,
my staff reviewed appeals in which the
court issued an opinion on the merits
after full briefing during April, May, and
June 2011. Although not encompassing a
complete year, the results provide some
interesting numbers. We found that, on
average, 328 days elapsed between the
filing of the notice of appeal in our court
and the issuance of the final opinion.
On average, it took 274 days from the
date the notice of appeal was filed to
submit the case, and 54 days for the court
to issue its opinion after the case was
submitted. Ordinary (non-accelerated)
criminal appeals took the longest time
to resolve, averaging 338 days from
filing to submission and 41 days from
submission to issuance of an opinion, for
a total of 379 days to resolve the appeal.
Ordinary civil appeals averaged 271
days from date of filing to submission
and 86 days from date of submission to
issuance of the opinion,2 for a total of 357
days. As expected, accelerated appeals
were completed in the shortest amount
of time, averaging 187 days from filing
to submission and 14 days to issue an
opinion after submission, for a total of
201 days. For the ten non-accelerated
cases in which oral argument was held,
the average number of days from filing to
submission was 301 and from submission
to opinion was 113, totaling 415 days
from filing to issuance of the opinion.
Why does it take more time to
resolve cases with oral argument?
One reason is that the cases in which
oral arguments are granted are
typically more difficult or complex.
Another reason is the result of how
the court assigns cases. As I explained
in one of my earlier articles, when
a case is set for oral argument, the
chambers assigned to write the
opinion prepares a presubmission
memorandum that outlines the major
issues in the case and the applicable
law. The opinion is not written until
after the case is formally submitted on
the date of oral argument. However,
in cases submitted on briefs, the
authoring justice may begin work
on the opinion as soon as the case is
assigned, normally about forty-five
days before the submission date. Each
month there are usually several cases
in which the opinion issues on or
near the date the case is formally set
for submission because of this “headstart” our system allows.
The Fourth Court of Appeals
remains committed to rendering the
best opinions possible in a timely
manner. Although we are cognizant
of the adage that “justice delayed is
justice denied,” the same result may
occur if justice is hurried or if undue
emphasis is placed on the speed rather
than the quality of our opinions.
Justice Steven C. Hilbig was
elected to the Fourth Court
of Appeals in November
2006. Immediately prior
to joining the court,
Justice Hilbig was a solo
practitioner, engaged
in criminal defense and
civil litigation in state
and federal courts. In
addition to other stints in private practice, he had
previously served eight years as Bexar County
Criminal District Attorney, three years as an
Assistant United States Attorney for the Western
District of Texas, and four years as an Assistant
Criminal District Attorney. Justice Hilbig has
been board certified by the Texas Board of Legal
Specialization in criminal law since 1986.
Available at www.4thcoa.courts.state.tx.us/pdf/StatisticalUpdate_2009-2010.pdf.
The data includes four civil appeals in which the court withdrew its original opinion, resubmitted the case, and issued a new opinion. For
purposes of our calculations, we considered the relevant dates to be the original submission date and the date the final opinion issued.
1
2
San Antonio Lawyer
13
Fourth Court Update
Justice Delayed is Justice Denied;
Justice Hurried is Justice Buried
H
Privacy
istorically, court records have been available for
inspection at the courthouse to anyone with the
time and incentive to make the trip and request the
records in person. Modern technology provides the
means to make these records available instantly to
anyone anywhere in the world with a computer and an Internet
connection. The potential savings in time and effort to attorneys
and the public makes such access desirable. Allowing online
access to court records containing private information, however,
raises privacy concerns the courts are still addressing. This article
traces recent efforts to address those concerns.
In 1999, the Judicial Conference Committee on Court
Administration and Case Management on Privacy and Public
Access to Electronic Case Files began studying privacy and
security concerns surrounding online access of federal court
records. Online availability of documents containing Social
Security numbers, information about minor children, and financial
accounts were of particular concern. The goal was to develop a
nationwide federal court policy for paper and electronic filings.
In 2001, the federal committee recommended notifying
litigants that materials filed in federal court may be available
on the Internet, and requiring lawyers to examine pleadings
for sensitive or private information and seeking leave to seal
documents when appropriate. The committee also recommended
amending the procedural rules to permit redaction of certain
personal identifying information; e.g., by permitting documents
which contain partial identifying information such as the last
four digits of Social Security numbers, the initials of the names
of minor children, and the last four digits of financial account
numbers. These recommendations were incorporated in Rule
5.2 of the Federal Rules of Civil Procedure and Rule 49.1 of the
Federal Rules of Criminal Procedure.
The federal committee also recommended that civil case files
be made available online to the same extent they are available
in person (with some exceptions for personal information
contained in bankruptcy cases), but considered information in
criminal case files too sensitive due to the potential dangers to
victims, defendants, and law enforcement personnel. As a layer
of protection, electronically-filed documents would only be
available through the PACERNet system, requiring registration
and the use of a login and password so as to create an electronic
access trail for use in the event of misuse of information. The
Judicial Conference established a website at www.privacy.
uscourts.gov to publicize privacy and public access policies. The
website provides access to updated policies and occasionally
calls for comments on new or revised policies.
The state courts addressed privacy concerns in 2002 via
the Conference of Chief Justices and the Conference of State
Court Administrators. In the “Model Policy on Public Access
to Court Records,” the state Conferences recognized that
unrestricted online access to court records could potentially
create unreasonable invasions of personal privacy and increase
the risk of harm to individuals and businesses. The model policy
identified eleven goals for online access to court records: 1)
provide maximum accessibility to court records; 2) support the
role of the judiciary; 3) promote government accountability; 4)
contribute to public safety; 5) avoid risk of harm to individuals;
6) make the most effective use of court and clerk of court staff; 7)
provide excellent customer service; 8) protect individual privacy
rights and interests; 9) protect proprietary business information;
Protection in
Electronically
Filed Information
By James A. Rodriguez
San Antonio Lawyer
14
10) minimize reluctance to use the court to
resolve disputes; and 11) not unduly burden
the ongoing business of the judiciary. As a
balance of these interests, the model policy
identified the following information as
“not accessible to the public”: financial
information containing identifying account
numbers, the first five digits of Social
Security numbers, proprietary business
information, and notes and work products
prepared by or for a judge related to cases
before the court. The model policy can be
found in the “Publications” section of the
Justice Management Institute website at
www.jmijustice.org.
Privacy concerns were first addressed
in Texas in 2003, when the Supreme Court
of Texas appointed the Committee on
Public Access to Court Records. The Texas
committee was tasked with developing,
and submitting to the Texas Judicial
Council, a comprehensive access policy
on privacy and safety implications of
releasing court records to the public on the
Internet. In 2004, after six public hearings
and extensive research, the committee
published several policy recommendations.
The committee’s recommendations have
not yet been incorporated into the Texas
Rules of Judicial Administration.
The Texas committee unanimously
recommended that the Supreme Court
of Texas create and require the filing
of a Sensitive Data Form for each case.
That form would disclose required
sensitive information such as complete
Social Security numbers, financial
account numbers, dates of birth, and
names of minor children to parties and
attorneys, but the form would not be
available to the public. Other unanimous
recommendations called for additional
committees to consider closure of certain
records to the public in either electronic or
paper formats and to monitor and review
the disclosure of records on the Internet.
The Texas committee adopted
two alternative proposals regarding a
comprehensive policy for online record
access. The first alternative, titled “Open
Remote Access,” would make any record
available at the courthouse available to
the public on the Internet. Any document
deemed too sensitive or personal for
public availability could be restricted
by statute, court rule, or court order.
The second alternative, titled “Modified
Remote Access,” recommended several
restrictions on public availability. First,
only court-created records such as indexes,
dockets, and calendars would be available
online. Second, case records could be
accessed through the use of a subscriberbased system requiring registration
and a user login and password. Third,
even in a subscriber-based system,
certain information, such as medical
and psychological records and reports,
certain criminal record information, and
tax returns would not be available online.
Lastly, records filed in a family court
proceeding, other than court-created
records, would not be available online.
The final report of the Texas committee
contains a detailed assessment of the
history of public access to court records
and the committee’s concerns for privacy
and safety implications inherent in online
access of court records. The committee’s
final report can be found online at www.
courts.state.tx.us/tjc/reports.asp.
James A. Rodriguez is a
solo practitioner focusing
on family law and probate
matters. He is also the
presiding municipal judge
in Von Ormy, Texas.
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San Antonio Lawyer
15
2/10/11 8:57 AM
A Courtroom Lawyer, Part III
By Luther H. Soules III
Recently, I asked Luke to write about some of his myriad experiences as a
courtroom lawyer. What follows is the third of a multi-part series of vignettes
from Luke’s career as an outstanding Courtroom Lawyer. Sara Murray
I
have long been interested in the rules
governing the practice of law. After
serving as Chief Justice Calvert’s
briefing attorney, I was appointed to
the Supreme Court Rules Advisory
Committee by Chief Justice Calvert’s
successor, Chief Justice Joe
Greenhill. I was later made chair
of the Rules Advisory Committee
by Chief Justice Greenhill’s
successor, Chief Justice Jack Pope;
was reappointed chair by Chief
Justice Pope’s successor, Chief
Justice John Hill; and was again
reappointed chair by Chief Justice
John Hill’s successor, Chief Justice
Tom Phillips. These appointments
gave me opportunities for
relationships with distinguished
and successful lawyers from all
over the State. Together, we labored
to keep current and relevant the
Texas Rules of Civil Procedure,
to separate and rewrite the Texas
Rules of Appellate Procedure,
to adopt the Texas Rules of Civil
Evidence, and then to combine
them with the rules of criminal
evidence into the Texas Rules
of Evidence. During my twenty
years on the Rules Advisory
Committee and fifteen years as its
chair, we focused on improving
the administration of Texas justice.
Almost every significant area of
the rules was revised at some
point, and we made every effort to
respond to concerns from lawyers,
judges, and the public related to
trial and appellate practice.
After leaving the Rules Advisory
Committee, I was appointed to the Supreme
Court Grievance Oversight Committee
and became a member of the Disciplinary
Rules Committee of the State Bar of Texas.
I was also a member of the Court Rules
Committee of the State Bar of Texas. My
experience on these committees brought
me several cases in which the central issues
focused on the rules governing the legal
profession. Here are some of my memories
from a few of those cases, among others:
Evidence Magic. A head-on collision
occurred at highway speeds. The car was no
match for the 18-wheeler. Unquestionably,
the only negligent driver was in the car.
A fuel-fed fire erupted. The sole survivor
of the crash, a child, was burned alive.
Two qualified experts testified for the
plaintiff. The fire-cause-and-origin expert
acknowledged that he was not an expert
San Antonio Lawyer
16
on automobile mechanics. The automobile
mechanics expert acknowledged that he
was not an expert on fire cause and origin.
The fire-cause-and-origin expert testified
that the fire commenced at the rear of the car,
in the area of the fuel tank, and was caused
by flammable fluid ignited by grass
set ablaze by fragments of the car
motor. On cross-examination, he
testified that the fuel source could
have been from any part of the fuel
system, something he would not
know. That was to be established
by the auto mechanics expert. That
expert testified that the source of the
fuel was from a fuel return line at the
rear of the car that should have had,
but did not have, a block to prevent
the siphoning that a ruptured
fuel return line allowed from the
fuel tank. On cross-examination,
he testified that the fire could
have originated anywhere in the
wreckage but that was not his area
of expertise, something he would
not know. The child died when the
car exploded from the fuel spill. The
only possible claim was a products
claim for not blocking possible
siphoning from the fuel tank back
through the return line. The court
of last resort held that the fire origin
expert’s testimony that fuel could
have escaped from anywhere in the
wreckage (not his area of expertise)
cancelled the testimony of the auto
mechanics expert that the fuel
siphoned from the fuel tank. That
court further held that the testimony
of the automobile mechanics expert that
the fire could have originated anywhere
in the wreckage (not his area of expertise)
cancelled the testimony of the fire-causeand-origin expert that the fire originated
at the rear. The “Hat Trick” court made the
702 testimony just disappear. Thus, having
no expert opinion evidence remaining as
Luke Soules
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to either the source of the fuel or the origin
of the fire, the jury verdict and underlying
judgments were reversed and rendered. This
precedent applied a never-before, nor since,
standard of review to disregard competent
expert testimony. GMC v. Iracheta, 161
S.W.3d 462 (Tex. 2005).
Rules Evolve. A teacher sued the college
for discrimination. Shortly before trial, the
trial judge — at a bar with friends across
the river — said he thought the teacher
should win. That was reported to the
college. The Texas Constitution is the law on
disqualification, but the circumstances did
not fit that. The Code of Judicial Conduct,
at that time, had grounds for a recusal
but had no process. A statute gave the
Regional Administrative Judge authority to
appoint a recusal judge but, again, gave no
process. A recusal judge was appointed and
procedures for disposition were fashioned
step by step. This may have been the first
recusal proceeding in Texas. The CJC and the
statute were relatively new, so they became
embryonic to new rules. As a result, the
Supreme Court Rules Advisory Committee
recognized a need for a recusal process
that would resolve recusal issues promptly,
avoid use of the process to delay trials, and
avoid dilatory interlocutory appeals. Rules
18a and 18b, patterned somewhat on that
experience, emerged and were adopted.
Zafarini v. Laredo Junior College.
Solicitation Past and Present. The rule
prohibiting client solicitation have never
been enforced other than against plaintiffs’
lawyers. When leveled at a prominent and
successful Houston lawyer, he challenged
the rule on constitutional grounds “as
applied.” The Supreme Court of Texas
engaged on the argument that the rule
was never applied to defense lawyers
or transaction lawyers. The language of
the rule exempted no one. The interest of
the Court, expressed in its opinion, raised
alarms among other lawyers for their
prevalent solicitation activities: hunting,
fishing, wine tasting, travel, and beyond.
Grievances might arise against transaction
and defense lawyers just for entertaining
would-be clients, as they had for decades
with impunity. Preventive measures had to
be pursued. They were. Soon the solicitation
rule was amended by the State Bar of Texas
to prohibit only solicitation “for a particular
matter.” Adding those words to the rule
preserved its practical enforceability
exclusively to plaintiffs’ lawyers. Note
also: unexpected in the appeal was an
amicus from the Trial Lawyers, headed by
other prominent and successful plaintiffs’
lawyers who supported prohibiting
solicitation. In the rule-change process,
they also joined the transaction and
defense lawyers. Sometimes, economics
overcomes partisanship. O’Quinn v. State
Bar of Texas, 763 S.W.2d 397 (Tex. 1988).
If You Win, Can You Look? The lawyers
fought a privilege claim by the opposing
party. The judge ordered the materials
produced, refused a stay pending review,
and handed the materials he had examined
to the prevailing lawyers, who reviewed
the documents. A court of appeals
reversed the trial judge, holding that the
materials were privileged, and, collaterally,
disqualified the lawyers who had prevailed
in the trial court for their having reviewed
the documents the trial judge gave them.
The Supreme Court of Texas decided
the lawyers could not be disqualified for
reviewing documents that they had been
given by the district judge. There was no
precedent, and an opposite result would
have sent years of lawyers’ contingentfee-based discovery and plaintiffs’ trial
preparation into turmoil. In re Nitla, S.A.
de C.V., 92 S.W.3d 419 (Tex. 2002).
Represented or Pro Se? A party with a
lawyer of record approached the opposing
lawyer and said the party was no longer
represented. He wanted to settle his small
part in a large dispute. The opposing lawyer
accommodated the party and spoke freely
with him as a pro se party. The former lawyer
of the party also represented other parties
and sought disqualification for contacting
a represented party. The Supreme Court
of Texas ruled that the lawyer was free to
talk to the pro se party and to accept his
representation that he was pro se, regardless
of the trial court record and regardless of
whether he had actually communicated the
termination of his lawyer to that lawyer.
Note that the pro se status of the party was
documented, and it was not necessary to
notify either the original lawyer or the
court. In re Users System Services, Inc.,
22 S.W.3d 331 (Tex. 1999).
Liar’s Poker. At the invitation of Bath
& Body Works (BBW) to participate in
trials to capture BBW’s enormous lotion
business, DPT Laboratories, along with
other manufacturers, sent lotion samples
under explicit confidentiality agreements.
BBW notifed DPT that another lotion had
been selected. When the lotion came to
BBW’s retail shelves, DPT acquired some
to test why it had not gotten the business.
DPT found that the lotion was exactly like
San Antonio Lawyer
18
that submitted in the DPT samples, except
for BBW’s color and fragrance additives. In
the ensuing litigation, the first deposition
was BBW’s vice president for research and
development. He testified that the lotion
on their shelves was not DPT’s lotion,
and that the DPT samples had not been
replicated. And so the story went at BBW
from witness to witness. But the identity of
a laboratory with which BBW sometimes
did business was uncovered. Deposition
was noticed. Furious resistance came
quickly, but the federal judge ordered the
deposition taken. When the laboratory
received the deposition notice, its manager
took its entire file to its company lawyer to
be locked up in safekeeping. The laboratory
suspected what was up, and it all came out
in the deposition. Documentation showed
the knowledge and involvement of BBW’s
lying vice president of R&D. The value of
the case increased several fold, and the
expedited settlement reflected that increase.
DTP Labs. v. Bath & Body Works, Inc.
Razor Wire and Steel Doors. Seagoville
federal prison is not the most pleasant
place for a deposition. The facilities are not
particularly designed for comfort. But that
was where the witness resided, behind razor
wire and steel doors. He couldn’t come
out, so we had to go in. At least we had a
roundtrip pass. A prison monitor observed
the proceeding along with two armed
prison guards. The person most intimidated
was the court reporter. Small by Madoff
measures, the case was a companion to
the Inverworld scandal. Mexican investors
in dollar accounts had lost millions. And,
perhaps due to the Inverworld scandal,
chose San Antonio as their forum to sue
connected United States, European, and
Caribbean financial services. Although
many were detached from the wrongdoing
and some not subject to personal
jurisdiction, substantial settlements were
made. Fortunately, most of the travel was
more accommodating than steel doors and
razor wire. Credit Commercial de France,
S.A. v. Morales, 195 S.W.3d 209 (Tex. App.
— San Antonio 2006, pet. denied).
$624,365,428.00. It was Bexar County’s
largest verdict. The jury found fraud by
McLane Wholesale and tortious interference
by Walmart. Six years after the case was filed
and following a summary judgment adverse
to the plaintiffs but reversed on appeal, the
plaintiffs had a Bexar County jury. The jury
was recessed on Friday afternoon, after the
actual damages verdict, to return Monday
morning to consider exemplary damages.
In a previous unrelated case, a Houston
lawyer had resubmitted an actual damage
verdict to a jury, and that jury reduced its
actual damages award and replaced the
reduction with an exemplary damages
award that busted caps. The result was
a lower judgment than had there been
no exemplary damages. So, on Friday,
we promptly polled the jury, secured the
verdict, had it received by the court, and had
it entered into the minutes, thus protecting
it from any further jury consideration.
Over the weekend, general counsel from
Bentonville came to San Antonio, and the
entire case was settled. Our precautions
of Friday were likely, in this instance,
unnecessary. When the jury was dismissed
Monday and we were able to have posttrial discussions, the jurors indicated their
disposition to award exemplary damages in
double the amount of their actual damages
award. Ricardo’s jury work and Ruben’s
damages testimony were characteristically
masterful. Valores Corporativos, S.A. v.
McLane Co., 945 S.W.2d 160 (Tex. App. —
San Antonio 1997, writ denied).
Careful Where You Step. A gas producer
with a transportation contract claimed the
pipeline wrongfully refused to take gas from
a new area. The claim was “aggressive,”
and a careful review of the contract by the
pipeline brought scrutiny to the services
the pipeline was already providing the
producer. A Frio County district court on
summary judgment ruled that the pipeline
was not only entitled to refuse gas from the
new area, but already was providing services
beyond the mandates of the contract.
Inviting scrutiny can be risky. Warrior Gas
Co. v. Valero Hydrocarbons, L.P.
Uncharted Seas? San Antonio was
required to zone private property beyond
the ends of the runways at Kelly Air Force
Base, prohibiting residential development
and limiting building heights. The
property owner alternatively claimed
inverse condemnation taking and inverse
condemnation damages. The jury awarded
the same dollar amounts on both the takings
theory and the damages theory. The owner
elected the damages and the trial court
rendered judgment. Ordinarily, of course,
damages would be less than the full value of
the property in a takings judgment, and the
owner could accept either the damages and
retain the property, or accept the takings
award and surrender the property. Could
the owner, in this instance, receive payment
of the full value amount and also retain
the property since it elected the separate
but equal damages award? The problem
was unprecedented in the case law. Risk
of appellate review was ominous for both
sides. Could San Antonio be required to
pay the judgment and get no property?
Could the circumstances of the claim result
in appellate holdings that San Antonio,
merely by its zoning, had neither taken
nor damaged the property? San Antonio
negotiated with the owners, ultimately
purchased the property, and sold it over
time to industrial users with businesses
related to Kelly that could use the property
as San Antonio had zoned it. San Antonio’s
business plan has worked. The resolution
was a “win-win” for the parties, but the
unprecedented legal problem remains
unanswered. City of San Antonio v. Van De
Walle Agricultural Properties.
Essential Words. A party had
previously settled a huge dispute over
diamond mining rights in South Africa.
Claiming, and to a large extent proving,
that the party had been induced to settle
by false representations, the party sought
to set aside the settlement. The settlement
agreement contained provisions that the
party, in making the settlement, had its
own counsel, reviewed the settlement
agreement, was relying on its own
investigation of the facts and circumstances,
and was not relying on any information
from the opposite party. The Supreme
Court of Texas held that the inclusion of
such provisions negated, as a matter of
law, reliance and foreclosed any claim by
a party for fraud or misrepresentation.
Texas litigation and transactions lawyers
alike now routinely include in their
documents verbatim language from the
court’s opinion to foreclose the making of
such claims after documents are executed.
Schlumberger Tech. Corp. v. Swanson, 959
S.W.2d 171 (Tex. 1997).
English Only? The Supreme Court of
Texas has condemned addressing a state
court jury in Spanish. The simple words
in a single sentence were, “Muchas gracias
les doy de parte de mis nietos y mi hiya y
de parte mia la jurado.” Spoken in a Webb
County district court. Throughout the
southwestern states, and particularly in
the South Texas region, those words are
as common as their English counterparts.
It seems impossible that a high court
could consider simple Spanish language,
routinely used in English discourse, as
an unlawful appeal to ethnic bias and
- continued on page 22 -
San Antonio Lawyer
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© Copyright 2011 Kelmar and Associates #C05785
Federal Court Update
By the Honorable Nancy
Stein Nowak, Soledad
Valenciano, and Melanie Fry
Judge Nowak’s summaries of significant decisions rendered by San
Antonio federal judges from 1998 to
the present are available for keyword
searching at Court Web found at
http://courtweb.pamd.uscourts.
gov/courtweb/. Full text images
of most of these orders can also be
accessed through Court Web.
If you are aware of a Western District
of Texas order that you believe would
be of interest to the local bar and
should be summarized in this column,
please contact Soledad Valenciano or
Melanie Fry by phone at 554-5500 or
by email at svalenciano@coxsmith.
com or [email protected] with
the style and cause number of the
case, and the entry date and docket
number of the order.
Personal Jurisdiction
Linton v. Douglas L. Johnson, SA-10CA-585-OG (Recommendations by
Nowak, May 5, 2011; accepted by
Garcia, May 31, 2011)
Court accepted Magistrate Judge’s
recommendation to grant motions
to dismiss for lack of personal
jurisdiction. Linton was a defendant
in a California lawsuit brought against
him by Armuth, who was represented
by a California law firm. Linton sued
the law firm, the lawyer, and its client,
Grahn, all California residents, based
on alleged strong-arm tactics by the
California lawyer to settle Armuth
and to obtain discovery in Grahn from
Linton. Communications regarding
Grahn occurred during Linton’s
attempts to settle Armuth. Linton
failed to make a prima facie case of
specific jurisdiction. There was not a
substantial connection between the
contacts and the operative facts of
the litigation. Rather, the relied-upon
communications were substantially
related to settling the California-based
litigation, Armuth, and the operative
facts stemmed from such litigation, not
an injury in Texas. Linton also failed
to make a prima facie case of general
jurisdiction. Beyond the telephone
calls and emails about the California
litigation, which communications were
not systematic or continuous, there
was no purposeful availment of the
privileges and protections of Texas law.
Federal Tort Claims Act; Texas Civil
Practices & Remedies Code
Wood v. U.S.A., SA-10-CV-941-XR
(Rodriguez, May 10, 2011)
Wood asserted that the Kerrville
VA Health Care System violated
the Federal Tort Claims Act. U.S.
asserted as an affirmative defense that,
pursuant to Tex. Civ. Prac. & Rem.
Code § 74.503(b), future damages
other than medical, health care, or
custodial services awarded in a health
care liability claim should be ordered
paid in whole or in part in periodic
payments, rather than by lump sum.
U.S. later amended its answer to
include an affirmative defense under
§ 74.503(a), also calling for periodic
payments. Wood moved to strike such
amendment, arguing that no authority
supported periodic payments in an
FTCA action. Finding no Fifth Circuit
precedent, and given that discovery
was ongoing and no favorable verdict
had been entered for Wood, court
denied the motion, permitting Wood
to re-urge his motion should he
receive a favorable verdict.
Confirmation of Chapter 13 Plan;
Standard of Review; U.S.C. § 1325(b)(3)
Viegelahn v. Essex, SA-10-CV-767-XR
(Rodriguez, June 27, 2011)
Court reversed Bankruptcy Court’s
Order confirming Chapter 13 Plan.
Court reviewed the Bankruptcy
Court’s Order de novo as no evidence
was presented during the hearing on
Trustee’s objection to the confirmation
of the Plan. Reconsidering the Trustee’s
claim that the Plan was not filed in
good faith, Court applied the “totality
of the circumstances” test to determine
whether the good faith presumption
offered to debtors was negated by
aggravating factors. Although the
debtors’ proposed housing expenses
satisfied 11 U.S.C. § 1325(b)(3), and
were thus presumed to be made in
good faith, aggravating circumstances
rebutted such presumption such as
retaining a $600,000 home while
San Antonio Lawyer
20
paying only 1% to unsecured creditors,
including the IRS. Debtors had not
explained why it was necessary to
retain a home with mortgage payments
four times the IRS standard for their
area. Court found it against Congress’
intent to protect those who purchased
a homestead while simultaneously
evading income taxes and to allow such
individuals to retain their homestead
while paying only 1% of the debt
owed to unsecured creditors.
Due Process; Immunity; Zoning
Decisions
Lee v. Whispering Oaks Home Owners’
Assoc., et al., SA-11-CA-64-XR
(Rodriguez, June 23, 2011)
The Lees’ application to re-zone
five lots in an upscale residential
subdivision was denied. The Lees
alleged due process violations
and conspiracy. Assuming but not
deciding that the Lees had a protected
interest, court dismissed substantive
due process claims holding the Lees
failed to demonstrate that there was
no rational basis to deny rezoning.
Because the substantive due process
claim failed, conspiracy on such
basis also failed. Further, because the
Lees could not show that public and
private actors reached an agreement
to commit an illegal act, allegations
of conspiracy under 42 U.S.C. § 1983
failed. Any due process takings claim
was unripe as the Lees had not yet
sought just compensation. Because
zoning decisions are considered
legitimate legislative functions, the
defendant-council person who voted
against the application was entitled
to absolute legislative immunity.
Habeas Corpus Review; Extradition;
18 U.S.C. § 3184
Picciochi v. U.S.A., SA-10-CA-331-FB
(Biery, July 30, 2010)(reviewing Order
of Mathy)
Magistrate Judge entered certification
of extraditability and order of
commitment ordering Picciochi
subject to extradition to the Republic
of Argentina. See SA-09-M-1085.
Court agreed with Magistrate Judge’s
rationale and denied Picciochi’s habeas
corpus petition. Court found Magistrate
Judge had jurisdiction as Picciochi
was found in Pearsall, Texas, which
is in the W.D. Texas, when Argentina
filed its formal request for extradition,
even though he had been residing in
California prior to being detained. Court
could not address under habeas corpus
review whether Magistrate Judge should
have transferred venue but noted that it
agreed with Magistrate Judge’s decision.
Picciochi’s due process claims failed
because there is no due process right
to confidentiality of information in an
asylum request; there is no constitutional
right to a speedy extradition; and because
Picciochi failed to show a defect in the
extradition proceeding that rendered
it fundamentally unfair and that
prejudiced the outcome of the matter.
Court found competent evidence that
probable cause exists. (Note: See SA09-M-1085 for discussion of the variety
of evidence a magistrate may consider.)
Extradition treaty provides that only
competent authority, here the Secretary
of State, and not court may determine
whether extradition should not be
granted because the charges or request
are politically motivated.
Arbitration; Credit Repair
Organizations Act
Adams v. ACSO of Texas, Inc., SA-11-CA0187-XR (Rodriguez, June 13, 2011)
Plaintiffs sued alleging violations
of Credit Repair Organizations Act
(CROA). ACSO moved to compel
arbitration based on credit services
contracts between the parties. Plaintiffs
argued claims were not subject to
arbitration, because Congress granted
consumers the express “right to sue” in
CROA. Court noted a Circuit split: Ninth
Circuit held in Greenwood v. CompuCredit
that “right to sue” language in CROA
precluded arbitration. Third and
Eleventh Circuits held CROA claims
are arbitrable. Court followed Third
and Eleventh Circuits and held that
the “right to sue” language in the
statute does not exclude arbitration to
settle CROA violations. Court granted
ACSO’s motion to compel arbitration,
but stayed order pending Supreme
Court’s decision in CompuCredit.
Motion to Transfer Venue
Sweet v. Indianapolis Jet Ctr., Inc., SA-10CV-1039-XR (Rodriguez, June 22, 2011)
Court granted defendants’ motion to
transfer venue to Southern District
of Indiana. Action “might have been
brought” there because virtually every
defendant resided in Indiana, and signing
of employment agreement at issue
occurred in Indiana. Further, transfer
was justified for “the convenience of the
parties and witnesses, in the interest of
justice” because the bulk of the records
were in Indianapolis, and majority of
witnesses resided in Indiana and were
within subpoena power of that court.
Sovereign Immunity; Governmental
Immunity; Texas Whistleblower Act
Bonillas v. Harlandale ISD, SA-10-CV1053-XR (Rodriguez, June 2, 2011)
Teacher filed suit in state court
asserting claims for whistleblower
retaliation and violation of the First
and Fourteenth Amendments. HISD
removed the case. HISD then argued
federal court lacked jurisdiction to hear
teacher’s whistleblower claim, because
San Antonio Lawyer
21
Texas Legislature had not waived
state’s sovereign immunity in any
court other than state court. Court held
Texas Whistleblower Act only waives
state sovereign immunity in state court,
not Eleventh Amendment immunity
in federal court. However, Eleventh
Amendment immunity only extends
to state agencies when immunity is
necessary to protect the state treasury.
Texas independent school districts,
including HISD, are not subject to
Eleventh Amendment immunity. Court
further held Texas Whistleblower
Act provided unqualified waiver of
governmental immunity from liability,
and a waiver of immunity from suit
in state courts. HISD waived its
governmental immunity from suit by
removing the case.
Nancy Stein Nowak is a
United States Magistrate
Judge for the Western District of Texas. Since 1986,
Judge Nowak has summarized significant decisions
of the local judiciary for
the Subpoena and the San
Antonio Lawyer.
Soledad Valenciano and Melanie Fry practice
commercial litigation with Cox Smith Matthews.
Published by
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1922 Great Ridge • San Antonio, TX 78248
Publisher - Ron L. Hogue
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For information on advertising in
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Call 210.381.7664
The San Antonio Lawyer is published bimonthly by Nationwide
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San Antonio Bar Association. Reproduction in any manner of any
material, in whole or in part, is
prohibited without the express
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Chief. Material contained herein
does not necessarily reflect the
opinion of the Publisher or its
staff. San Antonio Lawyer, the San
Antonio Bar Assocation and the
Publisher reserve the right to
edit all materials and assume no
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or omissions. San Antonio Lawyer
and the Publisher do not knowingly accept false or misleading
advertisements, false or misleading editorials and do not assume
any responsibility should such
editorials or advertising appear.
Advertisers’ Index
AffiniPay
2
Assn. of Atty. Mediators
23
Bank of San Antonio
15
Broadway Bank
23
Davidson & Troilo
21
Gilsbar
4
Gunn, Lee & Cave
7
KelMar11
Jeff Small
4
Sol Schwartz & Assoc.
12
Luther H. Soules, III
17
Rosenberg Soules
- continued from page 6 -
- continued from page 19 -
form a new one. Now Rosenberg enjoys
the twin “titles” of Senior Partner and
Founder in the firm known as Rosenthal
Pauerstein Sandoloski Agather LLP.
Throughout it all, Rosenberg’s
relationship with Tom Benson has remained
a constant. Stanley has now represented
Benson and his interests for six decades.
Rosenberg says they have a pact that
neither will retire. Rosenberg was among
the original San Antonio investors when
Benson acquired the New Orleans Saints,
and he represented Benson in 1987 when
he bought out the remaining partners. And
is Rosenberg a Saint’s fan? Let’s put it this
way — he has a Super Bowl ring.
Stanley Rosenberg now spends the
bulk of his working hours advising Tom
Benson in legal and business matters. “I still
love to negotiate,” he says with a smile. He
and his wife Sandra are fortunate to be able
to give back to the community in which
they have lived all their lives, so much so
that the School of Optometry at Incarnate
Word now bears their names. The San Antonio Medical Foundation and UT Law and
Business Schools have been among their
favorite charities for many years.
It is the opportunity to forge close
relationships and provide counsel that
Rosenberg finds attractive about the law.
He recalls a memorable firm party when
Herb Kelleher brought a group of Southwest Airlines employees down to the Turtle
Creek Country Club to perform some show
tunes from a Broadway musical called “Me
and My Girl.” The “show stopper” is a tune
called “The Family Solicitor.” Perhaps it is
that term which best describes Rosenberg’s
relationship with his clients. “I am nice to
them. I am interested in their family. I try
to help their kids. We talk about things that
concern them. To me the practice of law
has never been about how many hours I
can bill and collect. What’s the fun of that?”
prejudice. We frequently encounter
commonplace usages of Spanish language
in Texas courtrooms. Are all of them
unlawful? After his retirement from the
Fourth Court of Appeals, Chief Justice
Carlos Cadena was bench-trying a Hague
Convention “Elian law” child custody case.
The Mexico parties testified in Spanish
through a translator. The translator had
to be excused for personal reasons late
in the day. There were still some loose
ends. The parties called for a replacement
translator, but Judge Cadena remarked
that he, both parties, and both lawyers all
spoke Spanish, and they could complete
the matters in Spanish. Which they did.
Following the treaty, the judge ordered the
child returned to Mexico. And, in a will
contest tried long ago by Judge Eugene
Williams, a gardener for the decedent,
who resided and died in Mexico, testified
in Spanish that he saw her recent husband,
the beneficiary of the contested will,
murder the decedent. The Bexar County
jury gasped before the translator could
even commence the translation. Is English
the “official language” of Texas? The Texas
Supreme Court must think so. Adios for
now. General Motors v. Iracheta, 161
S.W.3d 462 (Tex. 2005); Flores v. Contreras,
981 S.W.2d 246 (Tex. App. — San Antonio
1998, pet. denied).
Patrick Autry is “Of Counsel” with The Nunley Firm
in Boerne, Texas. He is
Board Certified in Business Bankruptcy Law by
the Texas Board of Legal
Specialization.
San Antonio Lawyer
22
Luke Soules has practiced
law in and out of San
Antonio for more than
four decades as a member
of highly regarded law
firms. He has a national
reputation as a courtroom
lawyer. He now practices
individually under the
name of his former law
firm, Soules & Wallace — the Wallace being his
revered friend and colleague James P. Wallace,
a retired Supreme Court of Texas Justice. Luke
now limits his practice to mediation, consulting
with other lawyers on trial and appellate matters,
legal professional liability and malpractice
matters, lawyer discipline matters, testifying
on attorney’s fees and disqualification issues,
and pro bono work. His comfortable mediation
facilities are conveniently located on Northeast
Loop 410 and include three conference rooms,
state-of-the-art communications connectivity,
and convenient parking.
TheAssociationofAttorneyMediators
SanAntonioChapter
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stepped up to Private Banking
“ WhenatI Broadway
Bank, I knew beyond
a reasonable doubt they were in my court.
”
— S E. D, A  L
As an accomplished lawyer and native
San Antonian, Sara E. Dysart climbed
her own ladder to success. And
when Sara needed a strong financial
partner she could trust, she turned to
Private Banking at Broadway Bank. Ten
years later, Broadway Bank is still
backing Sara’s successful practice by
providing a single point-of-contact
service and timely responsiveness for
money management, customized lending
solutions, investment planning, and more.
Sara believes in the power of concierge
banking and even refers her clients to
Broadway Bank – and that’s her best
counsel.
38 N B C | 210.283.6642 | 800.531.7650 | broadwaybank.com |
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W E A LT H M A N A G E M E N T

September-October 2011 2011-2012 SABA President Gary W

Transcription

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