Features for December 2014

Welcome to the December 2014 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

Living Life with Purpose: A Profile of Chief Justice Ann Crawford McClure, by Chief Justice Kem Frost, 14th Court of Appeals

David Furlow describes the history between the Stephen F. Austin colony and the jurisprudence of the First Court of Appeals

Justice Bill Boyce, 14th Court of Appeals, considers whether adverbs have a f[unctional] purpose.

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman warns of a new computer security threat that could impact your practice.

Case updates for the Houston practitioner
by John Barnes, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Andrew Nelson, Wright & Close, LLP

A look at the upcoming CLE luncheons for the HBA Appellate Practice Section

Living Life with Purpose:
A Profile of Chief Justice Ann Crawford McClure

by Chief Justice Kem Thompson Frost, Fourteenth Court of Appeals

It took more than a century for a woman to ascend to the Chief Justice position of Texas’s Eighth Court of Appeals in El Paso. In 2011, Ann Crawford McClure became the first to hold the title. A longtime member of the Texas judiciary, McClure draws on two decades of judicial experience to lead the three-member court that serves the state’s seventeen westernmost counties.

Born in Cincinnati, Ohio, McClure moved with her family to the Lone Star State when she was just a toddler. The near-native Texan graduated from San Antonio’s Winston Churchill High School, where she developed an early interest in debate and extemporaneous speaking. Pairing her gift for speech with a flair for written expression, McClure left high school already cultivating key assets for a life in the law.

She attended Texas Christian University, where she honed her public speaking skills by taking advantage of unique opportunities to work in radio, television, and film. After earning a bachelor of fine arts degree in communications, the magna cum laude graduate moved to Houston, hoping to land a job in radio or television. Her plans changed as she learned more about the entry level positions, should she be fortunate enough to find one in the Bayou City’s tight market. As a tenderfoot, McClure would be relegated to the graveyard shift. Eager to get to work at a daytime job, she opted instead to take a position as a legal assistant with a big Houston law firm. McClure was thrilled when the partner to whom she was assigned let her take a crack at drafting documents. Delighted with her work product and seeing the promise in the 21-year old, the partner encouraged McClure to go to law school. She did.

At The University of Houston Law Center, McClure relished the academic experience. After receiving her Juris Doctorate and law license in 1979, she set out to make her mark in family law litigation. At the time, it was easy to spot women attorneys at the courthouse because nearly all of them wore bow ties, cummerbunds, and skirted versions of men’s suits. There were not many in the family courts and even fewer women role models in family law litigation. Reflecting on those early years, McClure says she feels fortunate that as a young attorney she found strong mentors in Burta Rayborn of Houston and Reba Rasor of Dallas.

McClure’s keen interest in family law spurred her to join a State Bar of Texas committee whose central mission was to write the Texas Family Law Practice Manual. Also on the committee was El Paso attorney David R. McClure, with whom she sparked a connection. Separated by 750 miles but brought together by regular committee meetings, the two fell in love. They were engaged to be married before the practice manual project was complete. To ensure that the entire committee would be in town for the wedding, the chair called the meeting for El Paso. For those who might think that finding love on a bar committee is a remote possibility, the Chief Justice reports that the McClures’ nuptials were the first but not the only marriage to come out of that bar committee. (Bar associations might want to take note of this report as a potential tool for the recruitment of single lawyers who might need an extra measure of motivation to sign up for committee work.)

Relocating to El Paso with her new husband in 1983, attorney Ann McClure spent the first few years in her new city as a solo practitioner. When it became apparent to the newlyweds that the professional demands of a two-litigator household would become even more challenging with children in the mix, McClure formulated a plan that would allow her to continue to practice law and yet be present in her home for their children. Motherhood soon followed and with it, major changes.

McClure transformed her litigation practice into an appellate practice to gain more flexibility in her schedule. The beauty of appellate work, she explains, is that “reading briefs and writing arguments can be done anytime, day or night.” The shift to appellate work enabled the new mom to spend her days with the couple’s young children. Working from home, says McClure, she developed a thriving statewide appellate practice—the more brief writing she did, the more referrals she got. Oral arguments rarely presented a problem because she could fly in and out of any city in Texas in a single day. The appellate practice was an ideal fit for her skill set, and the appellate pace was an ideal fit for this season of her life.

For most professional women, achieving balance is an aspiration. For Ann McClure, it is an accomplishment. As a young professional, wife, and mother in the 1980’s, she managed to make it all work amid the rigor and stress of modern law practice. Operating out of her house, McClure was both “at home” and “at work.” Though she had dual missions, she was singularly focused on one mission at a time—fully present for her children during their waking hours and fully engaged in appellate work at various other times. Taking this purposeful approach, McClure was able to find the sweet spot where she could meet the needs of both family and clients.

When the McClures’ younger child reached school age, husband and wife merged their respective law practices, forming the law partnership of McClure & McClure. Partners in law and life, the McClures worked side by side building both a successful law practice and a happy home. Having experienced firsthand the challenges and rewards of balancing marriage, family, and career, Ann McClure knows well the value of honoring priorities and living with purpose. She reports that their children are now “wonderful adults”—daughter Kinsey is the general manager of the original Reata in Alpine, Texas and son Scott is a third-year resident in emergency medicine. Married for 31 years, Ann McClure—wife, mother, and professional—is a living testament to the “both/and” model.

When Ann McClure won election to the Eighth Court of Appeals in 1994, she and her judicial colleagues held the distinction of being “the youngest appellate court in the country.” Since taking the bench twenty years ago, she has maintained the same high level of energy and production she demonstrated in private practice. During her long tenure on the El Paso-based court, she has authored more than 2000 opinions.

In speaking of the role of an intermediate court judge, Chief Justice McClure stresses the function of error correction and following the directives of the state’s two high courts. She also emphasizes the importance of honoring the intent of the legislature, noting that the court is not in the role of a policy maker, though she believes that courts should suggest changes in rules when adjustments would enhance practice or procedure. The thing she likes most about being an appellate judge is the ability to effectuate positive change through judicial writings. For her, it is especially gratifying to see modifications come about as a result of matters she addressed in her opinions.

When it comes to court administration and docket management, Chief Justice McClure has a knack for seeing a need and finding a solution. Her keen insight and ideas have helped Texas courts of appeals plan for strategic disaster recovery. She has sought to strengthen her court’s presence throughout its jurisdiction by holding oral arguments at various locales from El Paso to Ozona. Hers was the first court to utilize video conferencing. Tech savvy, Chief Justice McClure has embraced technological advancements with gusto. Under her leadership, the El Paso court is migrating all of its backup files to the cloud. The court is near-paperless and the judges are equipped with iPads. The Chief reports that she reads briefs on her device and makes liberal use of all its functions.

Chief Justice McClure is quick to note that she has benefitted from the sage advice of many judicial mentors. One was the late Max Osborn, who had just retired as the Chief Justice when McClure first took the appellate bench. A self-described “bar junkie,” McClure credits Osborn with instilling in her a fervent desire to participate in bar projects and events. Osborn, McClure explains, felt it was important for both lawyers and judges to be active in bar associations because the work of these groups is only relevant if their members are geographically represented. Osborn encouraged McClure to stay involved in bar activities because judicial participation is essential to maintaining strong ties between the bench and bar. McClure took the advice to heart. Over the course of her legal career, she has served in many leadership roles in various bar associations at state, local, and regional levels, and was president of two.

A prolific author of educational materials in family and appellate law, McClure has turned out more than a hundred legal articles. Though she writes on a variety of subjects, she especially enjoys writing on professionalism and legal ethics and often speaks to audiences on matters addressed in her articles. Creative and entertaining in her presentations, she is constantly seeking and finding new and innovative ways to make these subjects interesting to her audiences.

Chief Justice McClure has received heaps of honors and awards for her work on the bench and in the community. With all of her achievements, responsibilities, and commitments, one might wonder if the Chief Justice has any time for leisure or recreation, but she is quick to give assurance that down time is part of the equation. She knows the importance of carving out spells to rest and recharge. A freshwater fishing enthusiast, McClure gets animated when talking about her favorite fishing spot at the headwaters of the Rio Grande in Creede, Colorado. She is an avid recreational reader, with a strong preference for fiction. The Chief Justice also enjoys just being at home. Though their children are grown and out of the nest, the McClures are hardly alone. Gracie, a black Labrador retriever and Molly, a Brittany spaniel are their longtime companions. Four “grand-dogs” bring their current canine count to six.

The Chief Justice is a proud Texan but she has strong family ties to Kentucky. (Both of her parents are natives of The Bluegrass State.) McClure and her husband and both of their children are duly commissioned Kentucky Colonels, an honor bestowed by the Governor of Kentucky after nomination by the state legislature. The tradition was established by the commonwealth’s first governor, Isaac Shelby, who dubbed his trusted militia members “Kentucky Colonels.” Many associate the honorary title with leadership and dedication to the welfare of others. Being commissioned as a Kentucky Colonel is part of the Chief Justice’s family tradition now in the fourth generation. True to her family’s Kentucky roots, the McClures have plans to attend the 2015 Kentucky Derby.

The Chief Justice’s true passion is writing poetry. Her award-winning poem “Heartbeat,” written to her husband before the two were married, was merit-selected for publication in an anthology of poems along with the works of other artists. For McClure, the highpoint of the experience was not the literary accolades but the elegant act of presenting the published work, giftwrapped, to her beloved spouse.

Whether she is writing poetry, modeling new work paradigms, grappling with difficult legal issues, educating the bench and bar, or overseeing the operations of the Eighth Court of Appeals, Ann McClure lives life with purpose.

Origins of the Texas First Court of Appeals’ Jurisprudence

by David Furlow

The Texas Courts of Appeals for the First and Fourteenth Judicial Districts, designated in the jurisdictional map below as 1 and 14 below, correspond to the borders of Stephen F. Austin’s 1821-1836 colony. Does it reflect an unappreciated transmission of legal traditions from Austin’s colony through the Republic’s First District Judicial District through the modern Court of Civil Appeals for the First Supreme Judicial District of Texas?

Above, a Strasburger & Price, LLP map of Texas’s appellate judicial districts, http://www.strasburger.com/wp-content/uploads/2014/08/coa-dist-map.jpg; cf. TEXAS JUDICIAL BRANCH WEBSITE, Court of Appeals Districts, http://www.txcourts.gov/media/10872/COA05_map2012.pdf (accessed Dec. 7, 2014). Below, author Myra H. McIvain’s map of Austin’s colony.

Anglo-Tejano trial law commenced inside the counties of the Houston First Court of Appeals. Aside from a few failed filibustering expeditions, Texas’s Anglo-American history begins with empresario Stephen F. Austin’s foundation of the colony he administered from 1821 through 1836. By 1823, the colony stretched from the Gulf of Mexico in the south to El Camino Real (the Old San Antonio Road) in the north, the Lavaca River in the west, and Chocolate Bayou in the east. In 1824, Austin secured Mexico’s permission to extend its boundaries to the San Jacinto River in the east, bringing Harris County within it.

As a graduate of Transylvania University in Lexington, Kentucky and as an 1820 circuit judge on the First Judicial District of Arkansas, Austin had the imagination and experience to create a new rule of law. In 1823, he established his capital at a defensible site by the Brazos River. San Felipe is in Austin County, inside the modern First Court of Appeals

Brazosport, a small Brazoria County town at the mouth of the Brazos, was the port of entry for immigrants to Austin’s colony. On December 23, 1821, the immigration ship Lively sailed into Brazosport, now known as Surfside, filled with settlers. An anchor outside the Surfside Mayor’s Offices marks where the first of Austin’s colonists stepped ashore. Meanwhile, by 1828, two hundred colonists lived in San Felipe along the bluffs of the Brazos River. It was the political, economic, and cultural capital of the colony. The Convention of 1832, the Convention of 1833, and the Consultation of November 3, 1835 occurred there.

An anchor and an historic marker at Surfside History Museum, by the Surfside Mayor’s Office, mark the arrival of settlers immigrating into Stephen F. Austin’s Colony, at Brazosport from 1821 to 1835, and the site of Fort Velasco, the Mexican fort lying beneath the surface near the Mayor’s Office at Surfside, photos by David A. Furlow, 2012

Soon after securing his land grant, Austin promulgated laws for his colony. Article 20 of Austin’s Civil and Criminal Regulations (Jan. 1824) recognized a litigant’s right to appeal an adverse judgment if the amount in controversy exceeded twenty-five dollars and if the appellant posted security for “double the amount of judgment and costs.” Colonists appealed a few adverse rulings to Austin himself in San Felipe. In1826, he turned over that duty to a court of alcaldes (municipal mayors with executive authority). Any appeals of decisions Austin or the board of alcaldes rendered had to go to the provincial capital of the Mexican state of Coahuila y Tejas in Saltillo, Mexico. The distance, delay, and cost of providing the required security rendered a colonist’s appellate rights a mere abstraction.

The Constitution of Coahuila y Texas (1827), Decree 39 of the Legislation of Coahuila y Texas (June 21, 1827), and Decree 277 of the Legislation of Coahuila y Tejas (April 17, 1834) superseded Austin’s Regulations and, in the last instance, created an appellate court in Texas. A system of jury trials, simplified Anglo-Tejano pleadings, and appeals took hold in Austin’s colony by the mid-1830s. But Texas slipped rapidly into rebellion before the Mexican judicial reforms in Decree 277 took hold. Austin’s settlers introduced basic elements of Anglo-American law to Mexicans and Tejanos through colony courts. English-language judicial records from Galveston, Harris, Brazoria, Colorado, and Washington Counties reflect the blending of legal cultures in Austin’s colony courts in the Mexican State of Coahuila y Texas. In response to settler demands, lawmakers in the State of Coahuila and Texas organized the municipality of Brazoria, with Brazoria as its capital and Port Brazoria as its maritime entrepot. The Precinct of Victoria Guadalupe governed the lower half of Stephen F. Austin’s colony after 1829. Alexander Hodge served as Commissioner in 1829, while other precinct commissioners included Asa Bringham and Henry Smith. Settlers administered their own system of justice until Mexican state officials imposed a formal alcalde court on Brazoria settlers.

A copy of court records from Brazoria County, courtesy of the Brazoria County Historical Society, from in the Precinct of Victoria, in the Mexican State of Coahuila y Texas, June 29, 1832

The Republic’s First Judicial District preserved the Austin colony’s legal traditions. Lorenzo de Zavala, Sam Houston, Stephen F. Austin, and others met at Washington on the Brazos to rally support for the Alamo’s defenders, declare independence, and draft a constitution. Texas’s most important constitutional convention occurred in Washington County, inside the First Court of Appeals in March 1836. The Constitution of 1836 included a preamble, seven articles, and a Bill of Rights. It created the Supreme Court and inferior courts. Congress elected these judges to four-year terms.

There were three judicial districts in the Republic at first but, soon, there were four and, later, seven. On December 15, 1836, the Republic’s first Congress enacted the implementing statute that created the district courts of Texas, and elected the Chief Justice and four district judges that comprised the Texas Supreme Court the next day. The district judges conducted court sessions in the Republic’s original twenty-two counties and acted as ex officio members of the Texas Supreme Court. Each district judge served as an associate judge on the Texas Supreme Court. The Republic’s First Judicial District consisted of Galveston, Harris, Montgomery and Liberty Counties. Three of those counties lie within the jurisdictional footprint of the modern First Courts of Appeals.

Congress elected six judges to the First District between 1836 to 1845. Shelby Corzine, an ally of Sam Houston and another veteran of the Creek Indian War, took office in December 1836. He discharged his responsibilities ably, conducting the treason trial that resulted from the Córdova Rebellion in which some Nacogdoches residents took up arms against the Republic and serving on the commission to settle the U.S./Texas border before dying in office on February 8, 1839. Ezekiel Wimberley Cullen, Anthony B. Shelby, Thomas Johnson, Richard Morris and John Baker Jones succeeded Shelby Corzine on the bench.

In 1840, Texas’s Fourth Congress carved the Seventh Judicial District out of the First District, so the Seventh District included Galveston, Houston, Huntsville, and several rural counties. Texas’s post-annexation Constitution of 1845 preserved the Republic’s judicial system and appellate procedures, continuing the Austin colony’s traditions.

The current Texas First Court of Appeals began neither during Mexico’s control of Texas nor during the Republic but under the post-Reconstruction Constitution of 1876. A judicial reorganization in 1876 abolished the Commission of Appeals, transformed the Texas Court of Appeals into a three-man Court of Criminal Appeals, granted the Texas Supreme Court final jurisdiction except for appeals from county trials, and created an appellate court system:
The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law. The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.
The First Court of Civil Appeals begins its work. On August 11, 1891, a majority of Texas’s voters amended the 1876 Constitution to create an intermediate appellate system. The next year, the Legislature divided the state into three appellate judicial districts in Galveston (the First), Fort Worth (the Second), and Austin (the Third). On Monday, October 3, 1892, the Court of Civil Appeals for the First Supreme Judicial District of Texas opened its first term.

Operating in the Galveston County Jail building, the court heard appeals from fifty-seven counties. Chief Justice Christopher Columbus Garrett, Associate Justice Frank A. Williams, Associate Justice H. Clay Pleasants, and Clerk S.D. Reeves applied experience gained by Austin’s colonists and the Republic to guide the First Court of Civil Appeals.

On June 27-28, 1957, Hurricane Audrey caused severe damage to the First Court of Appeals’ facilities in the Galveston County Courthouse. The damage and disruption Hurricane Audrey inflicted on the court and the risk of similar disasters convinced the court’s judges to relocate to Houston. The Legislature insisted that Harris County pay for the First Court of Civil Appeals by requiring its commissioners to provide courtrooms and administrative facilities.

Texas voters reacted to increasing complaints about appellate delay by amending the Texas Constitution on November 8, 1966 to increase the size of appellate panels from three to five 1967. Rather than subdivide a ten-county jurisdictional footprint, the Legislature made the Fourteenth Court of Civil Appeals’ jurisdiction concurrent with that of the First Court of Civil Appeals. On November 5, 1985, a majority of Texas’s voters approved a constitutional amendment to re-title “Courts of Civil Appeals” as “Courts of Appeals.”

The First Court of Appeals is Texas’s first court of appeals. The First Court of Appeals set many precedents, social and political as well as legal. Houston area voters elected the Hon. Justice D. Camille Hutson-Dunn to be the State’s first female appellate judge. The Hon. Justice Alice Oliver–Parrott served as the first female Chief Justice of an appellate court in Texas. The first regularly-sitting all–female judicial panel of Texas appellate justices consisted of the Hon. Justices Alice Oliver–Parrott, Margaret Garner Mirabal, and Michol O’Connor. The Hon. Henry E. Doyle was Texas’s first African–American appellate judge. The Hon. Gaynelle Griffin Jones was the first female African–American appellate judge. And the Hon. Margie Thompson became the first African–American appellate clerk in Texas.

The jury trials and appellate innovations of Stephen F. Austin’s colony developed deep roots in the counties where the First Court of Appeals now presides. Lessons learned in the Republic’s First Judicial District, the Texas Supreme Court, and Congress guided later generations of Lone Star State legislators, lawyers, and judges in their search for justice. When voters, legislators, and judges created intermediate appellate review in 1891, the First Court of Civil Appeals embraced change and paved the path toward Texas’s future.

For three decades, David A. Furlow has been a trial attorney, and, for the past quarter century, a TBLS-certified appellate specialist. David will represent the Texas Supreme Court Historical Society at the Texas State Historical Society Annual Meeting in March 2015 to speak about the history of school prayer litigation: The King James Bible, the Texas Supreme Court, and the Preservation of Records: A Historical Tie with a Twist. Along with First Court of Appeals Senior Justice Terry Jennings, former First Court of Appeals Justice Murry Cohen, and Houston Municipal Court Judge “Kin” Spain, David will present a one-hour C.L.E. program, The Eight Hundred Year Legacy of MAGNA CARTA at the June 2015 State Bar of Texas Annual Meeting in San Antonio.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

One step on my journey towards concise expression occurred when, as a cub reporter, I received sage advice from a grizzled newsroom veteran with whom I had worked on an article that carried our names.

“This article,” the experienced reporter announced in a voice loud enough to be heard by all at the city desk, “is a piece of [not very good writing].” The reporter expressed dismay at having opened the paper to find a byline attached to this “[large and fresh specimen of not very good writing].” The article’s “[really not very good at all]” portions had come from me and contaminated the few remaining well-written paragraphs that I had not touched. I was informed that this reporter never before had allowed a byline to accompany a “piece of [not very good writing]” of this nature.

The reporter used this mentoring moment to suggest several strategies for my long-range personal and professional improvement; these included remedial instruction, better grooming, and exploration of alternate career paths that did not require facility with the written word.

The specific advice I wish to focus on here was the reporter’s additional heartfelt admonition to “stop using so many f[unctionless] adverbs.”

I took the pointed adverb advice to heart and tried to reduce their presence in my writing in the decades following this stimulating newsroom tutorial. The bench has reinforced my hard-earned suspicion of adverbs as I have trudged through scores of briefs fulminating about litigation opponents who have “brazenly” misrepresented the record, “cynically” manipulated the legal system, and “egregiously” misled trial courts into “inexplicably” committing the most profound affronts to reason and nature.

One short-hand version of this writing advice applies to briefs and opinions alike: “Show, don’t tell.” Well-chosen record quotes and non-hysterical factual descriptions provide sufficient emphasis while avoiding the empty calories and extra weight that accompany repeat trips to the adverb bar.

Just when I had my arms-length relationship with adverbs figured out, along came a recent article in The Wall Street Journal entitled: “Why Adverbs, Maligned by Many, Flourish in the American Legal System.” It cites examples from legislation and court opinions in which legal standards gain meaning – and perhaps a bit more flex at the joints – through strategic inclusion of adverbs.

One cited example is Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), a Breyer opinion addressing aggravated identity theft under 18 U.S.C. § 1028A(a)(1). This provision imposes a mandatory two-year prison term on individuals convicted of certain other crimes if the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The United States prosecuted Mr. Flores, a Mexican citizen, under this provision after he presented his employer with counterfeit Social Security and alien registration cards that used his real name but included numbers assigned to other people.

Mr. Flores argued that the United States could not prove he knew the numbers on the counterfeit documents were assigned to other people. The government argued that the word “knowingly” modifies the verbs but does not apply to the last three words of section 1028A(a)(1) – “of another person” – so that a prosecutor need not “show that the defendant knows that the means of identification the defendant has unlawfully used in fact belongs to another person.” Id. at 1890. The district court agreed with the government and found Mr. Flores guilty after a bench trial; the court of appeals affirmed.

The Supreme Court reversed. As a matter of grammar, it reasoned that the adverb “knowingly” modifies all following portions of the sentence including the phrase “of another person." Id. Justices Scalia concurred and was joined by Justice Thomas; they agreed with the grammatical analysis of the statute’s plain text but eschewed the majority’s additional discussion of legislative history. Id. at 1894-95 (Scalia, J., concurring). Justice Alito concurred as well to emphasize that the opinion should not be read “as adopting an overly rigid rule of statutory construction.” Id. at 1895 (Alito, J., concurring).

Qualifications and caveats aside, all justices agreed that the use of “knowingly” in this particular statute created a narrower, more precise evidentiary requirement for conviction.

And so, with due deference to my abusive former newsroom colleague, I find myself reassessing my adverb aversion. Perhaps there is more room than I was allowing to consider the appropriate use of adverbs in addressing governing legal standards. Maybe the justifiable reluctance to load up factual recitations with frothy but meaningless adverbs should be tempered by the recognition that greater meaning sometimes can be achieved with their sparing use. I am, in short, ready at long last to acknowledge that adverbs are not always bad.

As long as they’re used knowingly.

Did You Know . . . ?

by JoAnn Storey

There is a split of authority among the courts of appeals as to whether mandamus will lie to review the interlocutory granting of a bill of review. Compare In re Polio Gordo, Inc., 373 S.W.3d 107, 109B10 (Tex.App.─San Antonio 2012, orig. proceeding) (holding that mandamus will lie to review interlocutory grant of bill of review), In re Spiller, 303 S.W.3d 426, 431 (Tex.App.─Waco 2010, orig. proceeding) (same), and Schnitzius v. Koons, 813 S.W.2d 213, 218 (Tex.App.─Dallas 1991, orig. proceeding) (same), with In re Moreno, 4 S.W.3d 278, 281 (Tex.App.─Houston [14th Dist.] 1999, orig. proceeding) (holding that mandamus will not lie to review interlocutory grant of bill of review), Tex. Mex. Ry. Co. v. Hunter, 726 S.W.2d 616, 617B18 (Tex.App.─Corpus Christi 1987, orig. proceeding) (same), Stettner v. Apollo Paint & Body Shop, Inc., Nos. 01B02B00667BCV & 01B02B00204BCV, 2002 WL 1586282, at *1 (Tex.App.─Houston [1st Dist.] July 18, 2002, orig. proceeding, no pet.) (combined mandamus and appeal) (not designated for publication) (same); Patrick O'Connor & Assoc., L.P. v. Wang Inv. Networks, Inc., Nos. 01B12B00615BCV & 01B12B00976BCV, 2013 WL 1451358, at *2 (Tex.App.─Houston [1st Dist.] 2013, orig. proceeding, no pet.) (combined mandamus and appeal) (mem. op.) (same); and Ott v. Files, No. 03B00B00612BCV, 2000 WL 1675737, at *1 (Tex.App.─Austin 2000, no pet.) (not designated for publication) (same, in dictum).

This First Court of Appeals has recognized only one exception to the general rule that the interlocutory grant of a bill of review is not subject to mandamus review. In the context of a paternity suit in which genetic testing was ordered before retrial in a bill of review proceeding, the Court determined that the parameters of what constitutes an inadequate remedy by appeal were satisfied. See In re Office of Atty. Gen., 276 S.W.3d 611, 621 (Tex.App.-Houston [1st Dist.] 2008, orig. proceeding). The Court reasoned, "[O]nce the [paternity] test results are divulged, the information they contain cannot be retracted, any resulting harm to the child may be irreparable. The benefits to mandamus review in this context thus outweigh the detriments." Id. at 622.

AppellaTech: Ransomware, A New and Very Serious Security Threat

Computer scams and viruses are a constant threat. As you surely already know, this requires constant care and vigilance about what websites you visit, what programs you install, and what email attachments you open. In case you weren't aware, these threats increase over the holidays.  For the moment, then, you need to be even more careful than you already are.

I am saddened to inform you, however, that the risk has risen recently.  There is a relatively new kind of threat that has arisen that can have incredibly dire consequences for your practice. The threat is called ransomware. Once one of these programs is installed on your computer, it can encrypt all of the files on your computer and keep them "locked" unless you pay a ransom.

Imagine all of your client files, all of your work product, all of your contact information, and all of your databases rendered immediately and irretrievably inaccessible unless you agree to pay a ransom to the group that managed to get their software onto your computer. The first known instance of it occurred in September 2013. Since that time, it has grown in use and sophistication. It is worth your time, then, to learn of the threat now and to try to take some precautions that will reduce your risk of getting it or help you recover when you do.

How Ransomware Works

You don't need to know the full technical explanation of ransomware. If you are technologically savvy and curious enough, though, you can get more explanation here.

The basic idea of these types of programs is that, once they get installed on your computer, they begin encrypting certain files types (word processing, spreadsheet, database, etc.) with a very sophisticated encryption code. Only the group that put the software on your computer has the key to decrypting the files. As a result, everything that has been encrypted has become immediately inaccessible to you.

If you are logged on to an office server, the program will encrypt files it can find on the server as well, rendering other people's files inaccessible, too. It may also try to infect other people's computers that are also connected to the network.

Once the encryption has occurred, you will get a screen looking something like this:

From what I understand, a number of the programs included a timer. If the ransom is not paid in the time allotted, the encryption key is destroyed and you can no longer get the files decrypted.

To make things more difficult, the preferred payment system has become bitcoin because bitcoin transactions cannot be reversed. Unless you already regularly trade in bitcoin, trying to purchase bitcoins will only add to the difficulty of the situation.

Once you are infected, you face the dilemma of whether to pay the ransom. I am not here to answer that question for you. But clearly, people choosing to pay the ransom causes this threat to be lucrative, inviting more such threats. Additionally, the Department of Homeland Security warns, "Paying the ransom does not guarantee the encrypted files will be released; it only guarantees that the malicious actors receive the victim’s money, and in some cases, their banking information. In addition, decrypting files does not mean the malware infection itself has been removed."

How to Try to Protect Yourself

As an initial matter, it is worth noting that there are some computer viruses that just claim to have locked your computer or encrypted your files but have not actually done so. Encrypting data requires a fairly high amount of programming sophistication. Before you spend too much time deliberating over whether to pay the ransom, you should try to make sure that what is on your computer actually is ransomware.

Many of the standard warnings about avoiding any type of virus apply to avoiding ransomware.
  • Don't open email attachments from someone you do not know. Even if the email appears to be from someone you do know, it could be a fake.
    • On this point, if you are sending an email with an attachment to someone, get in the habit of always writing something in body text that is more than just "Please see attached." This will help friends spot an email claiming to be from you but is uncharacteristic.
  • Similarly, don't click on links in an email from someone you do not know.
  • Use caution when visiting websites you are not familiar with. Be wary of clicking on links in a website unless you trust the website.
  • Have anti-virus software on your computer. This may not be particularly effective, though. One security firm claims that the techniques used by ransomware "make it nearly impossible for traditional detection-based security solutions, such as antivirus, to prevent the attack before the file encryption."
Keeping viruses off your computer requires constant vigilance, however. And we all inevitably make mistakes. In one circumstance, an employee received an authentic-looking email from PayPal, claiming someone had sent him money. He clicked on the link, and trouble ensued.

Perhaps the most important way to protect yourself from such an attack, then, is to make sure your data is always backed up. But because of the nature of ransomware, this means more than just having another copy of your data immediately accessible. If the ransomware software can find the file, then your back-up efforts become lost. To this end, simply having files copied to a Google drive is insufficient. (At least it is if the Google drive is automatically accessible from your computer.)

Instead, there are a couple of safer alternatives. First, you can copy your files to an external hard drive that is not connected to your computer (or anyone else's computer on the network) except for when you copy the files. If your computer does become infected, do not connect that external hard drive to your computer (or any networked computer) until you know you have the problem fixed.

Second, you can use an online file recovery system. I highly recommend this alternative. There are any number of ways you can loose your files. Your hard drive could break or become corrupted. You could accidentally delete one file that you needed. Or you could become infected by ransomware. In any of these scenarios, your data is retrievable online. The benefit to these systems over copying files to an external hard drive is that it doesn't depend on you remembering to back up. A program runs in the background of your computer backing up files as you make changes.

These backup systems are more than just copies on a cloud drive. You have to go through a recovery process to access the files. This recovery process is what would protect your files from the ransomware software. For my home computer, I use CrashPlan. There are others out there, and I hope you spend some time investigating what would work best for you.

If you do use one of these options for backing up your files, fixing your computer will still be a headache. But it won't require paying a ransom, and it will save you from permanently losing all of your files. Instead, you will need to work to have the ransomware removed from your computer. Once you are sure that the computer (and all network computers) is safe, you can reload your files onto your computer.

I hope this never happens to any of you. I also hope that, if it does, you are adequately prepared to respond. Happy holidays.

Derek Bauman
Staff attorney, First Court of Appeals

Comments, questions, and useful information are always welcome (and desperately sought). Please send them to: submissions@hbaappellatelawyer.org.

Case Updates for October and November 2014

By John BarnesBaker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Andrew Nelson, Wright & Close, LLP


Henry v. Masson, No. 01-13-00898-CV, 2014 WL 6678937 (Tex. App.—Houston [1st Dist.] Nov. 25, 2014, no pet. h.)

Following rendition of judgment by the court of appeals, a trial court has limited discretion to grant additional relief pursuant to the mandate of the court of appeals.

Additionally, when both sides are successful in one or more claims, the trial court has discretion to order that each side bear its own costs.

Following protracted litigation between two doctors, the First Court of Appeals rendered judgment that Henry was entitled to $150,000 on a breach of contract claim against Masson, while Masson was entitled to $100,000 on his breach of contract claim against Henry. The court ordered the amounts offset, and ordered the trial court to enter final judgment of $50,000 for Henry “plus such other further relief to which he is entitled.”

On remand, Henry moved the trial court to enter judgment for $50,000, plus prejudgment interest and additional relief, including court costs. The trial court concluded that it could not award prejudgment interest or court costs as a result of the court of appeals’ mandate. Henry appealed.

On appeal, the trial court first addressed whether the trial court erred in determining that it could not award any relief in addition to the $50,000 court of appeals mandate. The First Court determined that the trial court erred in so holding. The First Court noted that when an appellate court reverses a trial court ruling and issues its mandate, the trial court is to take all actions that are necessary to give full effect to the mandate. In the case before it, the court held that the language “plus such other further relief to which he is entitled” authorized the trial court to consider issues such as prejudgment interest. Thus, the trial court erred in not determining that it could not award prejudgment interest.

The First Court, however, determined that an award of prejudgment interest was not authorized in the case. Next, the court considered the issue of court costs, which the trial court ordered to be borne by the parties. The court noted that both parties obtained relief; therefore, neither was completely successful. Because neither was wholly successful, the trial court did not abuse its discretion in refusing to award court costs to either party.

Oncor Elec. Delivery Company, LLC v. Murillo, No. 01-10-01123-CV, 2014 WL 5285845 (Tex. App.—Houston [1st Dist.] Oct. 16, 2014, no pet. h.) (en banc)

A jury instruction on ordinary negligence is inappropriate when the defendant is a premises owner and is not engaged in contemporaneous, negligent acts. When an ordinary negligence instruction is submitted without a premises-liability question, the court will reverse and render a take-nothing judgment.

The plaintiff—a demolition worker—sustained severe injuries when he attempted to disconnect a cable from an energized electrical transformer. Oncor was the local electrical provider and was supposed to disconnect and turn off the power to an apartment complex that was slated for demolition. The power was not turned off, and the plaintiff sustained injuries. The plaintiff sued Oncor and others under a negligent activity theory. Oncor objected to the submission of questions on active negligence and tendered a question based on a premises-liability theory. The judge submitted only the negligent activity question. The jury found Oncor negligent and the trial court entered judgment against it. Oncor appealed.

On appeal, the trial court determined that Oncor, which owned an easement to access the power lines, should be treated as a premises owner. The court then determined that the submission of a negligent activity question regarding Oncor was inappropriate. Oncor was on the property several weeks before the plaintiff was injured. Oncor read temporary meters, removed them, and closed the account. The plaintiff contended that Oncor was negligent in leaving the transformer energized instead of turning it off.

The court noted that the plaintiff never pointed to any evidence indicating that Oncor was obligated to de-energize the transformer. Additionally, there was no evidence that Oncor retained control over the plaintiff’s work. Further, Oncor did not contemporaneously energize the transformer while Murillo worked. Simply put, there was no evidence of a contemporaneous negligent act by Oncor. The plaintiff’s case was therefore a nonfeasance theory based on Oncor’s failure to make the property safe. Thus, Oncor’s duty, at most, was that of an occupier of the premises. Accordingly, Oncor was entitled to standard jury instructions that would have defined the scope of Oncor’s duty in light of posted warnings on the energized transformers and Oncor’s efforts to make the property safe. No such questions were submitted, which constituted error.

Because the trial court submitted an improper question and the plaintiff did not request a premises-liability question, Oncor asked for the court to reverse and render judgment in its favor. The court of appeals agreed with Oncor. The court noted that a negligence question, without more, cannot support a judgment against a possessor of land. Despite the well-established distinction between premises-liability claims and negligent-activity claims, the plaintiff chose to submit only negligent activity claims. Because the charge did not submit the proper predicate facts to the jury, the court reversed and rendered judgment in Oncor’s favor.

Lenoir v. Marino, No. 01-13-01034-CV, 2014 WL 6678947 (Tex. App.—Houston [1st Dist.] Nov. 25, 2014)

An objection to an affidavit as “conclusory” may be raised for the first time on appeal. Logical conclusions in an affidavit are not conclusory if they are based on underlying facts stated in the affidavit or any attachments.

In a medical malpractice suit against two physicians, the physicians moved to dismiss the plaintiffs’ claims on the grounds that the physicians were employees of governmental units. As such, they argued that the Texas Tort Claims Act barred any suit against them. The trial court dismissed both physicians from the suit.

On appeal, the plaintiff raised several issues, including a challenge to one of the physicians’ affidavits as conclusory. One of the physicians filed an affidavit stating that he was “in the paid service of” the hospital on the date of the event. The plaintiff argued that this statement was legally and factually incorrect and consisted of “legal conclusions not supported by facts.” The plaintiff did not secure a ruling on his objections at trial.

The First Court first noted that an objection that an affidavit is conclusory is a challenge to the substance of an affidavit that can be raised for the first time on appeal. Upon considering the substance of the affidavit, the court stated that “a conclusory fact is one that does not provide the underlying facts to support the conclusion.” While an affidavit that is merely a sworn statement of the allegations or recitation of the elements of a statute lacks probative value, logical conclusions are not improper if they are based on underlying facts stated in the affidavit. The court held that the affidavit was supported by documents attached to the affidavit. Further, an explanation of the structure of the hospital system did not become inadmissible simply because a party argues that the law should interpret the facts differently. The court overruled the plaintiff’s challenge to the affidavit.


Federal Home Loan Mortgage Corporation v. Trinh Pham, Katherine Crawford & Gary Block, No. 14-13-00109-CV (Tex. App.—Houston [14th Dist.] Oct. 9, 2014)

The failure to adequately plead the facts demonstrating that new litigation derives from a new and independent action from that previously adjudicated adversely to the claimant in prior litigation will support summary judgment on res judicata grounds, even where subsequently introduced evidence establishes those facts.

In 2012, Appellant Federal Home Loan Mortgage Corporation ("Freddie Mac") brought suit for forcible detainer against Appellees Pham, Crawford and Block (collectively, "Appellees") in regards to residential property located at 316 Litchfield Lane in Houston, Texas (the "Property"). In its petition, Freddie Mac alleged only that it was the owner of the property by foreclosure deed, and that all occupants were tenants at sufferance. Freddie Mac had brought suit against Appellees for forcible detainer of the Property on two prior occasions, in 2010 and in 2011, each time resulting in a take-nothing judgment in favor of Appellees.

Appellees moved for summary judgment, asserting res judicata as a bar to Freddie Mac's suit. Appellees' motion attached copies of both the petitions filed by Freddie Mac and the final judgments rendered in the 2010 and 2011 suits. In response, Freddie Mac argued that its 2012 suit constituted a new and independent cause of action, as the occupants of the Property, including Appellees, had been served with new notices to vacate after the date of the final judgment in the 2011 suit. No copies of the notices were attached to Freddie Mac's response.

The trial court granted Appellees' motion, and Freddie Mac filed a motion for new trial, this time attaching a business records affidavit, including copies of the notices to vacate and copies of certified mail envelopes showing that the notices had been mailed but had been returned unclaimed and unopened. The trial court denied the motion for new trial, and Freddie Mac appealed.

The Court of Appeals affirmed, recognizing that the refusal to comply with newly served notices to vacate would give rise to a new and independent cause of action for forcible detainer and thus preclude res judicata, but concluding that, in the absence of affirmative pleading by Freddie Mac, prior to and/or contemporaneous with the motion for summary judgment, that such notices had been served and refused, Appellees had met their summary judgment burden by establishing the existence of the final judgments in the prior suits, and were not required to establish when or if they were served with the notices to vacate upon which the new suit was brought. The Court likewise concluded that Freddie Mac had failed to meet its burden in its response to the motion for summary judgment, as it had attached no evidence concerning the service of the notices. In dicta, the Court further concluded that the evidence produced by Freddie Mac in support of its motion for new trial, even if taken into account for purposes of summary judgment, would still fail to meet the burden, as it failed to show affirmative receipt of the notices by Appellees.

Chief Justice Frost dissented, arguing that where, as in the case at bar, no special exceptions had been sustained against Freddie Mac's petition, the trial court was constrained to liberally construe all pleadings in Freddie Mac's favor. Consequently, she would have held that Freddie Mac had, by inference, sufficiently plead the service of new notices upon and the refusal to vacate by Appellees, which, in turn, would require that Appellees negate these allegations in order to meet their summary judgment burden. Since Appellees did not address this issue in their motion for summary judgment, Chief Justice Frost would reverse.

Mission Petroleum Carriers, Inc. v. David Kelley, No. 14-14-00072-CV (Tex. App.—Houston [14th Dist.] Oct. 9, 2014)

A party may ratify an agreement that would otherwise be unenforceable due to procedural unconscionability, and thereby subject himself to its terms, if he accepts the benefits of the agreement with full knowledge that it is not legally binding.

Appellee David Kelley ("Kelley") was severely injured in an 18-wheeler accident while working for Appellant Mission Petroleum Carriers, Inc. ("Mission"). While Kelley was in the hospital and on a morphine drip, a Mission representative visited his room with paperwork to authorize Kelley's participation in Mission's Health & Safety Plan (the "Plan"). The paperwork included an arbitration acknowledgement (the Agreement"), which required that any claims of injury resulting from an accident be submitted to binding arbitration. It was undisputed that Kelley signed the paperwork for the Plan, including the Agreement.

Kelley subsequently sued Mission and a third party for negligence, alleging gross negligence and seeking punitive damages. Mission filed a motion to compel arbitration, invoking the Agreement. In his response, Kelley argued that the Agreement was procedurally unconscionable, and attached affidavits from himself and his wife, attesting to his lack of memory of any events occurring while he was in the hospital, the failure of Mission's representative to explain that Kelley was consenting to arbitration, and Kelley's need for his wife's physical assistance to sign the paperwork for the Plan. At the hearing, Mission did not deny that the Agreement was procedurally unconscionable, but argued that Keley's acceptance of benefits ratified the Agreement and precluded his repudiation of it. In support, Mission produced affidavits and documentation showing that since the Agreement was signed, Mission had provided Kelley approximately $88,000 in benefits, including approximately $29,500 paid to him or on his behalf from the date the suit was filed through the date of the hearing on Mission's motion. The trial court denied Mission's motion, and an interlocutory appeal was filed.

The Court of Appeals reversed and rendered, concluding that the undisputed evidence of Kelley's acceptance of the benefits of the Plan containing the Agreement after retaining counsel and filing suit against Mission, coupled with his failure to return any of those benefits to Mission, acted as a ratification of the Agreement and subjected Kelley to its terms, even though the Agreement was originally executed under conditions that rendered it procedurally unconscionable.

City of Sugar Land v. Leon Kaplan, No. 14-14-00292-CV (Tex. App.—Houston [14th Dist.] Oct. 16, 2014)

To bring and maintain a wrongful termination suit under the Texas Commission on Human Rights Act (the "Act"), a complainant must first exhaust all of their administrative remedies by filing a written charge with the Equal Employment Opportunity Commission (EEOC) within 180 days after termination, and the trial court will lack jurisdiction over those claims not asserted in the charge. Further, while the relation back doctrine can apply to permit amendment of the charge later than the 180 day threshold, the facts supporting the amendment and the initial charge must be essentially identical, or else the amendment will be jurisdictionally barred.

Appellant Leon Kaplan ("Kaplan") sued his former employer, the City of Sugar Land (the "City") for wrongful termination from his position as the Administrative Manager of the City's Parks & Recreation Department. At the time of his termination, Kaplan was 69 years old, and suffered from high blood pressure and diabetes, which caused him to occasionally fall asleep or lose consciousness while on the job. Kaplan alleged that the City had failed to accommodate his disability or to acknowledge his request to take short breaks throughout the day. Kaplan further alleged that he was ridiculed on one occasion when he took a break and closed his eyes due to his condition.

Kaplan filed his initial charge with the EEOC within 180 days after his termination, as required under Tex. Lab. Code § 21.202. However, Kaplan's initial charge did not refer to his disability, and only alleged age discrimination. After filing suit, and after more than 180 days had passed since his termination, Kaplan filed an amended charge, in which he included allegations regarding his diabetes, etc., and asserted an additional claim for disability discrimination. After these claims were added to the lawsuit, the City filed a plea to the jurisdiction as to the disability discrimination claim. Kaplan argued that his disability discrimination claim related back to the date of his initial charge, and was therefore not barred. The trial court denied the City's plea, and this interlocutory appeal followed.

The Court of Appeals reversed and rendered, holding that Kaplan's amended charge did not relate back to his initial charge, as the initial charge contained no facts from which a disability discrimination claim, as opposed to merely an age discrimination claim, could be reasonably inferred so as to put the City on notice. Therefore, the amended charge was untimely filed, and the suit on the disability discrimination claim was therefore jurisdictionally barred under the Act.

Pinnacle Premier Properties, Inc. et al. v. Ghislain Breton, et al., No. 14-14-00194-CV (Tex. App.—Houston [14th Dist.] original opinion filed Oct. 9, 2014, substitute opinion filed Nov. 6, 2014)

A tenant at sufferance clause in a deed of trust severs the issue of defects in the foreclosure process from the issue of immediate right to possession. Consequently, a district court with a challenge to the foreclosure pending before it lacks jurisdiction to restrain or enjoin a concurrent suit for forcible detainer in the justice court, the latter court having exclusive jurisdiction over such matters.

Melba and Howard Johnson executed a deed of trust to unimproved property located in the Houston Heights neighborhood (the "Property"), to secure a $77,500 note (the "Note") executed by Melba and made payable to Pinnacle Realty Advisors, Inc. ("PRA"). The Property was subsequently sold by the Johnsons and was thereafter subdivided by one of the successor owners into two lots, upon which homes were built. One of these homes was then sold to Appellees Ghisain Breton and Catherine Denicourt, and the other to Appellee David Andreis.

Melba defaulted under the Note, and, after sending foreclosure notices to the Johnsons, PRA assigned the Note to Appellant Pinnacle Premier Properties, Inc. ("PPP"), which thereafter purchased the Property at a foreclosure sale. PPP then served Melba and all occupants with notices to vacate, at which time Appellees first became aware of the foreclosures. PPP then filed forcible detainer proceedings in justice court (the "justice court suit").

Appellees filed suit in district court, alleging claims for trespass to try title, wrongful foreclosure and suit to quiet title, and seeking an injunction to prevent the justice court suit from proceeding. The district court signed a temporary restraining order and then a temporary injunction preventing the justice court suit from going forward, whereupon this interlocutory appeal was filed by PPP.

The Court of Appeals reversed and rendered, holding that the district court lacked jurisdiction to enjoin the justice court suit, since by statute the justice court had exclusive jurisdiction to adjudicate the immediate right of possession where the right of possession can be determined without resolving a title dispute, over which the justice court lacks jurisdiction. The Court focused on the facts that the Johnsons' deed of trust contained a tenant at sufferance clause, pursuant to which the borrowers, i.e., the Johnsons, would become tenants at sufferance of the purchaser of the Property upon foreclosure of the lien. The Court reasoned that, since the Johnsons could not, as a matter of law, convey an interest beyond that which they held, and their interest was subject to the provisions of the deed of trust, all subsequent owners, including Appellees, likewise took subject to its provisions. Thus, Appellees were tenants at sufferance, which, under existing precedent, provided a basis for adjudicating possession independent of the merits of the foreclosure process. Therefore, Appellees' allegations concerning title were insufficient to permit the district court to exercise jurisdiction and enjoin the justice court suit. The Court further found that, irrespective of jurisdiction, the Appellees had failed to show the lack of an adequate remedy at law required for injunctive relief, as the foreclosure had occurred, and they had failed to demonstrate that the available post-foreclosure remedies, rescission or monetary damages, were not adequate to redress any harm done to them.

Upcoming Luncheons

January 8
“Supreme Court of Texas Update:  Focus on Energy, Business & Procedure,” by Lynne Liberato, Mark Trachtenberg, and Polly Graham Fohn (Haynes & Boone)
RSVP deadline: noon on Monday, January 5th
CLE: 1.0 hour

February 12*
“Chiefs’ Forum: The Past, Present, and Future of the Supreme Court of Texas,” by Chief Justice Nathan L. Hecht and former Chief Justices Wallace B. Jefferson (Alexander, Dubose, Jefferson & Townsend) and Thomas R. Phillips (Baker Botts)
RSVP deadline: noon on Monday, February 9th
CLE: 1.0 hour

Place: Coronado Club, 919 Milam Street, Suite 500 from 11:30 a.m. - 1:00 p.m.
Cost: $35 for Section members who RSVP; $40 for non-members who RSVP and for Section member walk-ins; $45 for non-member walk-ins.

To RSVP, please e-mail luncheon@hbaappellatesection.org. Please note that, if you RSVP and do not attend, you will be billed for the cost of the luncheon. Reservations are transferable.

* If you RSVP now for a luncheon in the future, please indicate in your email which luncheon you are planning to attend.

Features for September 2014

Welcome to the September 2014 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

Aaron Streett discusses his experience arguing before the United States Supreme Court.

David Furlow tells the tale of one man's efforts to preserve Harris County's historic court records.

Justice Bill Boyce, 14th Court of Appeals, explores the impact of split-court decisions.

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman shows you how to be the 10th United States Supreme Court Justice.

Case updates for the Houston practitioner
by John Barnes, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Andrew Nelson, Wright & Close, LLP

A look at the upcoming CLE luncheons for the HBA Appellate Practice Section


It's Like Speed Chess on Nine Boards at Once

by J. Stephen Barrick, Hicks Thomas LLP

Arguing a case before the U.S. Supreme Court is an experience that few lawyers ever have. Even for appellate specialists, the opportunity to argue in the highest court in the land is extremely rare. It is therefore special that one of our own – Aaron Streett of Baker Botts LLP – recently got that opportunity.

On March 5, 2014, Aaron presented oral argument on behalf of the petitioner in Halliburton v. Erica P. John Fund – a securities fraud class action case. Aaron’s client challenged the continued validity of the Court’s landmark case upholding the “fraud on the market” theory of reliance, Basic v. Levinson.

Sketch by Art Lien, courtartist.com

It was a weighty case by any measure. But it was also Aaron’s first time to present oral argument in the Supreme Court, and he was up against one of the country’s most well-known Supreme Court advocates, David Boies. And, at the end of the day, Aaron’s client walked away with a partial victory.

I recently had an opportunity to ask Aaron a few questions about his experience.

How did you get involved in this case?

Baker Botts has been lead counsel for Halliburton since shortly after the complaint was filed. I was brought into the case when it reached the Supreme Court the first time, back in 2010. My first assignment was to draft the Brief in Opposition to the Erica P. John Fund’s cert petition. I have been the lead appellate lawyer on the case since that time.

Are securities fraud class actions a particular specialty of yours?

No. I am an appellate generalist.

What made the case a good one for Supreme Court review?

At the end of the 2012 Term in the Supreme Court’s Amgen decision, four Justices suggested they were willing to reconsider the seminal securities decision of Basic v. Levinson. Our cert petition squarely presented the Court with that opportunity. There was also a circuit split on our second question presented: Whether a defendant may rebut the Basic presumption of reliance at the class certification stage with evidence that the alleged misrepresentations did not affect the stock’s market price.

There were a lot of amicus briefs filed in this case - 11 per side. Were you anticipating that much interest?

Yes, the questions presented are important to investors and companies alike.

Did you have to proactively seek out amici? How did you go about that?

At the cert stage, we reached out to potential amici to make them aware of our forthcoming cert petition and explain the issue and arguments we would be making. Once cert was granted, the remaining amici came out of the woodwork.

What was your reaction when you found out that cert had been granted?

I was at lunch in Washington, D.C., with Judge David Sentelle of the D.C. Circuit, the judge for whom I clerked. I was trying to be polite and not check my phone during lunch, but one of my colleagues on the case, Shane Pennington, who was also a Sentelle clerk, checked his phone and saw the news. We were surprised and excited, and it was a neat moment to share with the Judge who set our careers on track.

Appellate lawyers have come to expect some pretty drawn-out timetables, but in the Supreme Court, things can move pretty quickly. You filed your petition on September 9; the Court granted cert on November 15, less than three weeks after you filed your reply to the Respondents’ opposition; your brief on the merits was due 45 days after that; oral argument was scheduled for less than three months after you filed your brief; and the Court issued its decision, with three separate opinions, just three and a half months after that. What was that like?

It was intense. I felt like I spent most of my time over those months on this case, which made it challenging to keep up with other matters. One has to have a very talented and hardworking team to manage the research and drafting and argument preparation on such a compressed timetable, and we had that. The reply brief was especially tricky because we had to respond not only to the Fund’s 50-page merits brief, but also to 11 amicus briefs, including the brief of the United States’ Solicitor General.

Merits briefs, as you know, can be a pretty big job. Was it difficult to get that done in 45 days?

It was challenging. These issues were incredibly complex, involving economic theory, the specialized area of securities law, as well as the need to argue stare decisis. Again, we had a terrific team working around the clock. The biggest hurdle was coordinating all of the information and boiling it down into a persuasive brief.

How many people were involved in preparing your brief?

Seven attorneys.

At what point were you tapped to argue the case?

Shortly after cert was granted.

That was obviously a tremendous honor, but it was also an awesome responsibility. How did you feel at the time, knowing you were going to be the one standing there in front of “the Nine”?

I was humbled and a little overwhelmed. It’s daunting enough to argue any case in the Court, but it was particularly unusual to have such a significant case as one’s first argument. That said, having clerked at the Court and having argued a couple dozen appeals in other courts, I felt confident that I could get prepared and ultimately turn in a solid performance.

Can you describe what you did to prepare for oral argument?

Re-read the briefs, the key parts of the record, and all the potentially relevant cases. Identified 3-4 key points to emphasize and refined different ways to articulate them. Drafted anticipated questions and answers. Identified various further research topics and questions for members of the team. Participated in four moot courts. Practiced questions and answers ad nauseam. Spent a lot of time discussing answers and overall strategy with my appellate colleague and second-chair on the case, Evan Young.

At oral argument, you were up against one of the most high-profile Supreme Court advocates in the country, David Boies. Did that affect your preparation?


You say you moot-courted four times. How did the anticipated questioning compare to the actual thing?

The moots predicted all but two questions.

How did your answer to those go?

One question was a hypothetical posed by Justice Breyer about applying the presumption of reliance to an international contract dispute decision he had just announced that morning. Following standard advice about how to answer Justice Breyer’s questions, I picked a part of the question that I understood and tried to answer it. The other question related to our fallback argument but seemed to be very tangential. I briefly answered it and pivoted to a point I wanted to make.

So, you arrive at the Supreme Court building the day of oral argument – what's the first thing you do when you get there?

Head up to the Lawyers’ Lounge and try to relax.

What sort of check-in process does the Court have?

Arguing counsel meet at a desk in the lower level of the Court and are escorted upstairs to the Lawyers’ Lounge. In the Lawyers’ Lounge, the Clerk of Court gives a briefing to arguing counsel about what to expect during the argument.

Was there anything about it that was surprising or unexpected?

We were told to wait to be escorted into the courtroom, but nobody came to get us. Finally, Mr. Boies and I decided we should start wandering in. We made it to counsel table at 9:58—a little too close for comfort.

How long before your scheduled time for oral argument did you arrive?

About an hour and a half.

Every practitioner has his or her own way of gearing up for argument. What did you do between the time you were checked in and the actual argument?

Prayed, drank a lot of water, and practiced my opening a few times. Other than that, I just tried to enjoy the experience and conversed with colleagues and other acquaintances who were in the Lawyers’ Lounge.

What kind of reception did you feel like you got from the Court's justices?

It was hard to know what to expect in this case, since we had a very aggressive opening position—asking the Court to overrule a leading precedent—and a fallback position that was likely to divide the Court along typical lines. Most of the Justices seemed skeptical of overruling Basic but open to our fallback position. It was a pretty hot bench—I got 39 questions in 30 minutes—but nothing out of the ordinary in terms of the tone or pace of the questioning.

One of the third-party accounts of the argument made it sound like you got pummeled with hard questions while they just sat and listened to Boies talk. Did it seem like that to you?

Mr. Boies got his fair share of hard questions, but he did get fewer overall questions than I did. I was a little surprised by that.

What was the most memorable moment about oral argument for you?

Probably being able to conclude my rebuttal argument with a strong closing just as the red light came on. There is no countdown timer at the Court, which makes it quite difficult to time one’s closing. I also received an infamous two-minute hypothetical question from Justice Breyer, in which he referenced an opinion he had just handed down that morning.

The Court’s ultimate decision was a bit of a mixed bag for your client. Was the Court’s decision a surprise?

We were very pleased to prevail unanimously on our fallback argument, resulting in a vacatur of the lower courts’ decision to certify the class. The Court’s unanimity on that point was quite surprising, because a closely-divided Court had ruled for the plaintiffs on a similar securities question the preceding Term. We were not surprised that the Court declined to overrule Basic, especially after hearing the Justices’ questioning at argument. That would have been the securities-law equivalent of overruling Roe v. Wade. By accepting our fallback argument, the Court alleviated some of the worst problems with how Basic was being applied by the lower courts.

You clerked for the Court about 10 years ago for William Rehnquist. Did you feel like the Justices recognized you?

I am acquainted with a couple of the Justices, but they treat all counsel the same, with very few exceptions.

Was there any ceremony or process at the Supreme Court that was special or unusual?

Yes, the Court is the only U.S. appellate court of which I am aware that issues its decisions in open court. On the morning of my argument, the Court issued opinions in three cases. The authoring Justice reads a summary of his or her opinion from the bench. I always enjoyed watching this as a clerk, but as an advocate waiting to argue it only served to heighten the tension.

Do you feel like you learned something new about oral argument from this experience?

Yes, I experienced firsthand how different arguing in the Supreme Court is from any other court. The rapidity and quality of the questioning is unmatched and the demands of economy and strategy in answering those questions effectively is analogous to playing speed chess on nine boards at once. I just hope to continue to improve with each argument, as it is a skill that can only be sharpened with experience.

What about practice before the Supreme Court in general?

Practice before the Court is unique by virtue of the Justices’ location at the pinnacle of the third branch of government. Particularly where the Court is being asked to overrule an important precedent, the Court considers a lot of factors that are not “legal” in the strict sense of the word, including the Court’s institutional legitimacy and its relationship with Congress. I was also struck by the media and public-opinion battle waged in connection with the case.

Finally, and most important, what about the storied quill pen? Did you get one of those?

Yes, all four lawyers at counsel table get one. So this was actually my third quill, although this one is certainly more meaningful to me than the earlier two.

To Preserve and Protect Harris County’s Historic Court Records

by David Furlow1

This is the story of Francisco Heredia, a man who makes a difference every day. Francisco has taken charge of helping preserve Harris County’s – and Houston’s – historic legal heritage. As Team Leader of Harris County District Clerk Chris Daniel’s Historical Documents Records Center, Francisco Heredia ensures that the record of Harris County’s rich legal heritage is preserved, protected and easily accessible to lawyers, judges, justices, historians and members of the public. Anyone interested in seeing an important part of Texas legal history can examine these records in Room 200 of the Harris County Civil Courthouse.

Rust never sleeps. As graying rock and roller Neil Young sings, “Rust never sleeps.” In the absence of effective conservation, the decay and destruction of archival records is inevitable. Things fall apart, and often the center of a document fraying with time does not hold.

A little more than a decade ago, courthouse records with dramatic tales of Harris County’s history lay moldering like John Brown in his grave. An unmarked grave of docket sheets, judgments, orders, evidence and appeals, many dating back to the decade-long Republic of Texas, occupied a red brick building on a grubby corner of downtown Houston at the intersection of Texas and Austin. Climate control consisted of a single window-unit familiar to anyone who suffered through their buzzing, rattling and periodic breakdowns during the Fifties and Sixties. The acidity of paper, high humidity, the ravages of hurricanes and floods, the jaws of rats and roaches, and decades of neglect were reducing Harris County’s judicial history to fading stacks of confetti.

Enter Francisco Heredia. Born in Michoacán, Mexico, Francisco came to Houston in 1976. He has lived here ever since. Francisco and his wife Yozi have raised three children—Daniela, Victoria and Francisco—who attend KIPP Academy. Francisco developed an interest in history while studying computer information systems at the University of Houston. Francisco is grateful to the city that welcomed him. He gives back to his community by preserving and protecting its history.

Francisco went to work in the Customer Service Center of the Harris County District Clerk’s Office in 1996. He began his efforts to preserve Harris County’s historic courthouse records in 1998. At the time, records of trials, litigation and appeals, many of them historically unique, were decaying and disorganized. Many had been destroyed. And too many of those that remained were assigned for disposition in Dempsey dumpsters.

Under the tutelage of a concerned county employee, Michael Sturm, Francisco familiarized himself with how to find and preserve century-old records. By 2004, he knew that the county had to take action to preserve its legal history for future generations.

The creation of the Harris County Historical Documents Center. At the same time, other county leaders recognized that the County’s and Houston’s historical heritage was at severe risk. Before his retirement in 2009, Harris County District Court Judge Mark Davidson had served as Judge of the Eleventh Judicial District for twenty years. While serving on the bench, he began researching and publishing the history of Harris County’s judiciary.

Before he resigned his position as District Clerk to run for County Judge, Charles Bacarisse earned well-deserved praise for taking effective steps to preserve the County’s courthouse records, modernize dockets, and make current records accessible online. When Bacarisse examined the decaying records of the county’s courts, he saw the severe damage that had already been done.

Together with Heredia, Judge Davidson and District Clerk Bacarisse began working together in 2004 to organize the old courthouse records, raise public awareness, and solicit the funds necessary to preserve the courthouse records before they were forever lost. They removed the decaying records from the brick warehouse at Texas and Austin in 2001 and brought them to Harris County’s Civil Courthouse. On October 24, 2006, County officials opened the Historical Document Room to provide the public with access for viewing historical documents from 1837—1925.

Francisco Heredia, in front of the old brick repository of Harris County’s judicial records (top photo, David A. Furlow, 2014) and in the current Historical Documents Record Center (Harris County District Clerk’s photo)

Working in close association with Judge Mark Davidson and other members of Harris County’s justice system, Francisco acted effectively to preserve a treasure trove of Harris County judicial records, including some 35,000 pages of court records dating back to the Republic of Texas.

Historical records are now available through the District Clerk’s website. Current District Clerk Chris Daniel shares Francisco Heredia’s love of Harris County’s legal history. Born in Houston and raised in Jersey Village and northwest Harris County, he learned about world history and Dutch from his mother, Jolie, who grew up on Curacao, a Dutch island colony off northern Venezuela. Chris honors former District Clerk Bacarisse’s vision by making the County’s judicial records available at the Historic Documents Record Center in Room 200, on the Second Floor of the Civil Courthouse at 201 Caroline in downtown Houston. The Center is open from 9 AM to 1 PM on Wednesdays and from noon to 4 PM on Tuesdays and Thursdays.

Chris and Francisco make historic documents available to historians, lawyers, judges, and the general public free of charge on a page of Chris Daniel’s website at http://www.hcdistrictclerk.com/common/historicaldocument/HistoricalDocumentsMain.aspx. Judge Davidson provided the public with a Historical Case of the Month on a webpage that provides easy access to previous histories of the judiciary, including The Case of the First Woman Juror, The First Report of the Grand Jury on the Harrisburg County Jail, and Houston’s First Thanksgiving at http://www.hcdistrictclerk.com/common/About/HCDCNews.aspx?CoM=1. In addition, a former employee of the District Clerk’s Office, Claire Kennedy, has organized a public display of records and exhibits on the first floor of the Civil Courthouse.

The District Clerk’s Office has teamed with the Houston Bar Foundation to raise the funds needed to continue restoring and preserving Harris County’s past. The Houston Bar Foundation is accepting tax-deductible donations to preserve records. Those who want to assist in preserving these valuable records can write a check to the Houston Bar Foundation Records Preservation Project at P.O. Box 4651, Houston, Texas 77253.

The Historical Document Center’s record of a breach of warranty case involving the 1853 sale of a slave and a Texas Supreme Court appeal. One interesting case file available at the Center is a slavery case, Tilley v. Scranton, appealed to the Texas Supreme Court as Scranton v. Tilley, 16 Tex. 183 (1856). The case arose in 1854 as a purchaser’s breach of warranty lawsuit against the auctioneer/seller of a slave. George W. Tilley, the purchaser of a slave, sued F. Scranton & Company.

Tilley sued to recover the value of a slave named Friday who was misrepresented as healthy during a July 6, 1853 sale in Houston. The slave actually had epilepsy and died in the autumn of 1853 after suffering convulsions. The court’s record reflects that, “if [Friday] had been sound as warranted, his value would have been $ 1,500; that plaintiff procured the best medical attention for him; that his services were of no value, and that plaintiff, in addition to the loss of the value of said slave, suffered other damage as aforesaid to the amount of $ 500. [Tilley prayed] for the value of the slave and the other damages, and general relief.” Id. at 184.

Because of the passage of time and universal modern agreement that slavery was one of the world’s great evils, the Texas Supreme Court’s discussion of the case is likely to shock most readers. But the decision reflects the way social mores have changed over the past two centuries.

The Defendants pled a general demurrer and denial. Trial took place on the December 29, 1855. “Friday was apparently about sixteen years old; color, between mulatto and black; [and] delicately formed.” Id. at 185. Witnesses described Friday’s fevers, fits, and convulsions. Contending experts differed as to whether Friday was sick when sold or whether he died of heat stroke. The jury found for the plaintiff $1,100, the value of the slave as misrepresented, along with prejudgment interest dating pack to the sale on July 6th, 1853, and thirty dollars damages. The trial court overruled a motion for new trial. Id.

Chief Justice Royal Tyler Wheeler, who presided over the appeal, was born in Vermont in 1810 and grew up in Ohio, where he also received his education, studied law, and was admitted to the bar. He moved to Fayetteville, Arkansas in 1837, where he began a law practice with later Texas Supreme Court Justice William Oldham. Wheeler married and moved to San Augustine, Texas in 1839. See University of Texas School of Law, Tarlton Law Library, JUSTICES OF TEXAS 1836-1986, Royall Tyler Wheeler (1810-1864), http://tarlton.law.utexas.edu/justices/profile/view/114 (last accessed Sept. 4, 2014); James L. Haley, The Texas Supreme Court: A Narrative History, 1836-1986 (Univ. of Tex. Press, 2013), 29, 54-60, 66.

The Texas Supreme Court affirmed the judgment as to both liability and damages. Chief Justice Wheeler, who later became an ardent secessionist, treated the case as one no different from any other property dispute, setting forth an affirmation-friendly sufficiency of evidence standard of review:
Under the charge of the Court as applied to the evidence, the jury, in finding a verdict for the plaintiff, must have acted under the conviction, that the negro was diseased at the time of the sale and warranty, and that that disease caused his death. That was what the evidence conduced to prove; and it was only upon that supposition, or belief, that the jury could have found a verdict for the plaintiff. If the evidence was sufficient to warrant that conclusion, the verdict was right, and in accordance with the previous decisions of this Court. (Murphy v. Crain, 12 Tex. 297; McKinney v. Fort, 10 Id. 220.)
Scranton, 16 Tex. at 192.

Although Chief Justice Wheeler found that the case was a close one, the Texas Supreme Court nevertheless had to affirm the judgment to preserve its precedent:
The evidence, it must be admitted, is not very satisfactory, as to the fact of disease or unsoundness at the time of the sale. And it is to be regretted that the rights of parties must be finally determined upon evidence, which is not more convincing and satisfactory. But we cannot say, that the jury were not warranted by the evidence, in coming to the conclusion at which they arrived; or that the Court erred in refusing a new trial on that ground. The evidence before the jury certainly conduced to support the verdict; and it is a circumstance not to be disregarded, that the defendants offered no evidence to the contrary, except the testimony of a witness, as to the apparent soundness of the negro for a few days before the sale; and that was but little more than appeared from the plaintiff's evidence.

The Texas Supreme Court expressed concern about the measure of damages awarded after comparing decisions of other slave state jurisdictions:
Where however the plaintiff has enjoyed the benefit of the services of the negro, for any considerable length of time, and they have been valuable to him, such services ought to be an offset to the damages to the extent of their value. The value of the services, in this case, was not proved; but it would seem, from the evidence, that the negro performed the services of an ordinary hand, for a period of several months. The evidence, we think, was sufficient to extinguish the claim for interest; and to that extent, the verdict is apparently excessive.
Id. at 194-95.

Chief Justice Wheeler rejected any appellate complaint about the measure of damages, however, after concluding that petitioner Scranton’s counsel had waived any charge error by failing to timely and specifically complain in the trial court:
The charge of the court, as to the measure of damages, we deem to maintain the correct general rule; and had the attention of the court been called to this point, by instructions asked upon it, the charge would doubtless have been so far modified as to have given the defendants the benefit of the value of the services of the negro while in the plaintiff's service.

But the point does not appear to have been suggested by counsel in the court below, either by asking a proper instruction, or in their motion for a new trial: and on this account, there might, perhaps, be some difficulty in reforming the judgment in this respect, in this court.
Id. at 195.

In light of respondent Tilley’s willingness to accept a remittitur to correct the troubling questions involving the calculation of prejudgment interest, Chief Justice Wheeler concluded that any error in the charge or denial of petitioner Scranton’s motion for new trial was harmless: “But as the plaintiff has intimated a willingness to remit the interest, which will remove the difficulty, his remittitur will be received, and the judgment be otherwise affirmed, at the cost of the appellants.” Id.

The warranty deed at the heart of the case, now available in the Historic Documents Center, appears at the right below:

District Court records dating from 1837 (top photo, David A. Furlow, 2014) and F. Scranton’s 1853 Warranty of Sale for the Slave Sandy (District Clerk’s photo)

A decade later, on April 9, 1864, as the imminent collapse of the post-Vicksburg, post-Gettysburg Confederacy became apparent to all, secessionist Chief Justice Wheeler saw no future but a dismal one. “[I]nclined to the forebodings of melancholy . . . and contemplating the clouds which hung over the future of his country and the prospects of his family,” Chief Justice Royall Tyler Wheeler took his own life at his home in Washington County. See James Daniel Lynch, The Bench and Bar of Texas 91-96 (St. Louis, Mo.: Nixon-Jones Printing Co., 1885).

The courthouse records of Tilley v. Scranton have not yet been conserved. Francisco Heredia and the Historic Documents Record Center are looking for an individual or a law firm ready to fund the preservation of the case file, the judgment, and an appellate record that includes a warranty of the good health of Friday, the young slave who died of epilepsy in Wharton County. The cost would probably amount to a few thousand dollars.

In Texas, the wheels of justice grind slowly, but they grind fine. Slavery took its toll on all, as shown by the nineteenth century Harris County courthouse records Francisco Heredia has preserved and protected. Former Harris County District Court Judge Levi Benton helped make Houstonians aware of Tilley v. Scranton’s “breach of warranty” decision when he spoke about the case in a Black History Month symposium at the District Clerk’s Office on February 26, 2008.

Randolph Campbell, a respected historian and the editor of The Laws of Slavery in Texas, a book written in collaboration with Bill Pugsley and Marilyn Duncan, the former Executive Director and the current Consulting Editor of the Texas Supreme Court Historical Society, paid Francisco the highest compliment. “Francisco Heredia, head of the Historical Documents Records Center in the Harris County District Clerk’s Office, was continually asked to track down obscure records. He never failed to find any document, and probably never will.”2


1^ David Furlow, a native Houstonian, lawyer, husband, father, and historian, has served as Executive Editor of THE TEXAS SUPREME COURT HISTORICAL SOCIETY JOURNAL since 2011. See generally http://www.texascourthistory.org/ (Texas Supreme Court Historical Society website); see specifically http://www.texascourthistory.org/documents/TSCHS_JournalFall2011.pdf (Fall 2011) through http://www.texascourthistory.org/documents/TSCHS_Journal_Summer_2014.pdf (Summer 2014).

2^ See Randolph B. Campbell, The Laws of Slavery in Texas, 93 (Austin: Univ. of Tex. Press, 2010).