Texas Lawyer Blog

Ted Cruz not running for Texas AG

In a Dec. 22 update posted on his campaign Web site, Ted Cruz announced that his name will not appear on the ballot as a candidate for Texas attorney general in the March Republican primary. Cruz, a partner in Morgan, Lewis & Bockius in Houston who served as Texas solicitor general from 2003 to 2008, wrote that he made his decision even though he had raised $1.3 million and garnered statewide support for his AG bid. He pins his decision not to run indirectly on U.S. Sen. Kay Bailey Hutchison's decision to keep her Senate seat until after the March Republican primary. Hutchison is running to become Texas' next governor. Cruz wrote: "[I]t now seems that the 'dominoes falling' in Texas elective offices will be somewhat delayed." Specifically, he noted that Lt. Gov. David Dewhurst, a Republican, filed for re-election as did Texas Attorney General Greg Abbott, also a Republican. Since Abbott filed, Cruz wrote that he will not seek the AG's office. Noting that he takes Hutchison "at her word" regarding her pledge that she will resign her Senate seat after the primary -- regardless of the outcome -- Cruz wrote of a possible scenario in which Gov. Rick Perry could appoint Abbott to fill Hutchison's empty Senate seat, leaving the Texas AG's spot available for Cruz. "To be sure, this path is a bit more complicated than we might have preferred. But our campaign has always been about ideas, ideas grounded in principle – a belief that we must fight to defend our liberty and, in the event that General Abbott vacates the Office of Attorney General, we must continue his strong leadership," Cruz wrote.

-- Miriam Rozen

Hurricane Ike victims to get help from grant

An association of local governments, including Harris and Galveston counties, has granted $404,000 to the Consumer Law Center at the University of Houston Law Center to provide legal assistance to Hurricane Ike victims, says Richard Alderman, associate dean and director of the center. “We’re very excited,” Alderman says. The Houston-Galveston Area Council grant will allow the center, which currently has two full-time staff attorneys and an administrative assistant, to hire additional staff, he says. “We know we will be spending a lot of time in Galveston,” he says. “One of the things we’re thinking about is having a part-time attorney for intake specialist in Galveston, rather than someone in Houston traveling to Galveston,” he says. The grant will fund, for a year, the equivalent of two full-time attorneys, plus several law students and a full-time paralegal, he says.  Unresolved legal issues for hurricane victims can include problems with insurance programs, contractors and construction issues, landlord-tenant problems, and family issues such as divorce and custody matters, he says. “Our hope is that we will be able to do a lot within the next year,” he says.

-- Jeanne Graham

UT law students' winter break includes pro bono work

After the holidays, 40 University of Texas School of Law students will hit the road to gain pro bono experience and help those in need. The group is part of a law student organization called Pro Bono in January, which has arranged car pools and housing for the students who will travel to the Rio Grande Valley and Houston over the winter break. According to a UT press release, 24 students will work with the South Texas Civil Rights Project and Texas RioGrande Legal Aid to interview low-income clients and help draft wills. Six students will work with the South Texas Pro Bono Asylum Representation Project, helping immigration detainees complete asylum applications as well researching conditions in detainees’ home countries. And 10 students will work with volunteer attorneys in Houston to aid Hurricane Ike victims seeking housing assistance who have title questions regarding their property. Shannon Sims, a second-year law student who helped launch Pro Bono in January and serves as one of its coordinators, says she touted the program to her peers by telling them, “Even if you think you want to go work for a big firm for your whole life, this is an opportunity to get out there and sample public interest work.” Sims and her organization received funding and other assistance from UT’s William Wayne Justice Center for Public Interest Law. Tina Fernandez, director of pro bono programs at the Justice Center; Mary Crouter, Justice Center assistant director; Barbara Hines, Immigration Clinic director; Heather K. Way, Community Development Clinic director; and Frances Martinez, Community Development Clinic adjunct professor will accompany students to the Rio Grande Valley and Houston to oversee, advise and assist them.

-- Miriam Rozen

When you're hot, you're hot, and when you're not, you're not

Firm leaders in Texas say that the three practice areas with the most significant decrease in opportunity – at least for the immediate future – are real estate, banking/financial institutions and venture capital. This is according to 66 firm leaders who participated in Texas Lawyer’s 2009 Managing Partners Survey. Each firm leader selected three practice areas -- 47 percent chose real estate, 37 percent picked banking/financial institutions and 27 percent selected venture capital. Texas Lawyer conducted the survey in November and those invited to participate included leaders of Texas-based firms such as managing partners and presidents as well as partners-in-charge of non-Texas based firms.
-- Jeanne Graham

Former Travis County DA Ronnie Earle running for lieutenant governor

After taking a year off, giving speeches and doing some writing, former Travis County District Attorney Ronnie Earle (pictured) says he’s jumping into the 2010 election fray. Earle stepped down from his 32-year stint as DA at the end of 2008. On Friday he filed paperwork to run in the March Democratic primary for lieutenant governor. “A lot of people are concerned about what’s happening in Texas and think Texas can do better,” Earle says. “There are fewer job opportunities, fewer educational opportunities for children, fewer families with health insurance, fewer reasons for hope,” he says. Earle is known for his high-visibility prosecutions of politicians but says he was not interested in running for Texas attorney general -- the state’s chief legal officer -- because as a former DA he’s “already had the best lawyer’s job in Texas.”
-- Jeanne Graham

Increased client demands and pressure to lower fees cited as reason for practice becoming less enjoyable

More than three-fifths (67 percent) of Texas’ firm leaders who believe the practice of law today is less enjoyable than it was 10 years ago blame increased client demands and pressure to lower fees, according to Texas Lawyer’s 2009 Managing Partners Survey. This is an interesting contrast with the results of our first Managing Partners Survey in 2004, when just 13 percent of those describing the practice of law as less enjoyable pointed to client demands as the reason. In 2004, the primary reason for decreased enjoyment -- cited by 47 percent of the firm leaders participating -- was an overall rise in the competitive market. Here are two more comparative tidbits. In 2004, first-year associates at Texas’ 25 largest firms were paid annual salaries ranging from $73,000 to $110,000. In 2009, first-year associate salaries at BigTex firms range from $135,000 to $160,000.

-- Jeanne Graham

This Week in Texas Lawyer

The 2009 Impact Players: Those who made a difference this year include a worker whose willingness to speak up ended a terrible abuse of power, a district clerk who is bringing court documents into the information age, a state senator laying the groundwork for the next generation of attorneys, a receiver tasked with recovering funds in an alleged multibillion dollar fraud case, a judge whose brief order garnered nationwide attention and those kertwanged by the bad economy.

Timeline: A day-by-day look back at the year that was. 

Tongue-in-Cheek Awards: Senior reporter Mary Alice Robbins takes a  humorous look at the events of the last 12 months.

Substantive law: Discover the single most important development in 2009 in a range of practice areas.

"[A] capital D Dumbass": Remember 2009 through memorable quotations.

The final countdown: Director of electronic publishing Joe Borders reveals which Texas Lawyer stories drew the most clicks.

New twist in complicated saga: A northeast Texas lawyer and his wife (Mark and Rhonda Lesher, pictured) allege that the Red River county attorney violated an expunction order. Senior reporter Mary Alice Robbins traces the history that led up to this.

Distinctions and differences: Senior reporter John Council finds out why the duty to indemnify is independent from the duty to defend.

First Amendment fight or PR hooey?: Senior reporter Mary Alice Robbins hears some free speech about a suit challenging the Texas Open Meetings Act.

Getting Scrooged: The Assistant-at-Law gives lawyers cause to think twice about torpedoing bonuses and the staff holiday party.

Letter to the future: A judge shares lessons from a life in law with his children and the rest of us.

Inadmissible. Newsmakers. Discipline. VerdictSearch.  

Executive committee becomes elflike in e-card

I received a number of e-mailed holiday cards from Texas firms this month. Many featured beautiful snow scenes and/or detailed the firm’s charitable contributions for the holidays. But today, Locke Lord Bissell & Liddell’s Julie Gilbert, chief communications and marketing officer for the Dallas-based firm, shared a humorous e-card the firm’s executive committee sent via e-mail to the firm’s lawyers and staff. The heads of the nine members of the executive committee are superimposed onto the bodies of elves who build a snow globe decorated with the locations of the Dallas-based firm’s offices. Michael Buble sings “Let it Snow” in the background as the nine lawyers work on the toy. Later, the nine “elves” also pop out of a gift box to wish happy holidays to the Locke Lord lawyers and staff.  
-- Brenda Sapino Jeffreys

Texas Lawyer video blog Reversed & Remanded

Senior reporter John Council sits down with Dallas County Criminal District Court No. 7 Judge Mike Snipes to talk about what's different at the courthouse since the Democrats' elections and what the judge would like for Christmas. 

Fashion Fridays: last-minute luxurious gift ideas

Every year for Christmas I visit my sister in Charlottesville, Va. The four-plus hour flight each way can seem like such a trek for a relatively short visit, but getting to spend that time with my two adorable nieces is well worth it -- not to mention the crisp winter wonderland that happens in that part of the country (a beauty to which most of us down here in the 70 degree December sun are oblivious).  Though I'm traditionally a huge procrastinator when it comes to holiday shopping, this travel tradition requires me to become extremely disciplined with my gift buying. To avoid hauling gifts for the family of four in a suitcase (and to avoid the preposterous extra baggage charges these days), I order everything online and have it shipped directly to my sister's place, with one exception: Each year, at the last minute, I choose a special, luxurious gift for my sister that I carry, wrapped and topped with a bow, all the way to Charlottesville. The quest for my sister's special gift this year led me to brainstorm some luxurious and fashionable last-minute gifts for the sisters, friends and otherwise spectacular women in all of our lives. And best of all, most are small enough to be appropriate for air travel!

1. Voluspa candles: These high-quality, naturally derived candles are absolutely delicious. I was first turned on to these little gems a few years ago when I received the Huckleberry candle in a gorgeous tin as a housewarming gift. The pure and true scents are creamy and subtle, with a lingering presence that makes a home feel homey. At the moment, I'm loving the cinnamon cardamom and champagne scents -- perfect for the season. 
2. Stella & Dot jewelry: A dear friend recently invited me to a jewelry party. To be honest, jewelry parties aren't really my thing ,and I didn't plan on spending a dime. However, I was blown away by the gorgeous variety and luxe look of the pieces she had on display. By the end of the party, I had ordered several Christmas gifts for girlfriends and a few gifts for myself. The price point for some of the necklaces in particular is absolutely unbeatable.
3. Portolano leather gloves:I purchased my first pair of these during the last winter I was in Seattle and have since purchased them in every color, including a deep emerald green.  Despite the wonderfully feminine concept of an elbow-length glove, their practicality is astounding; on cold Texas mornings I often will forgo the heavy coat I know I'll shed by noon and just slip these gloves on with a sweater or suit jacket. The quality of the leather is superior, and you can be sure your recipient will be wearing them for years to come.
4. A classic designer scarf: As much as I obsess about fashion, I am not picky about labels.  I have been known to spend hours unapologetically in Claires at the mall looking through $5 items, and my all-time favorite dressy white t-shirt was purchased for eight dollars at Target on the clearance rack. But there is something so essential about owning a classic designer scarf. This Gucci monogram beauty is on my wish list this year, and I am also in love with this Hermes stolethat can double as a swimsuit wrap in the summer (allbeit well beyond my price range).
5. Tiffany Jardin heart box: My grandmother had a glass case full of gorgeous little ceramic baubles, including a Tiffany white basket-weave small powder box. Her collection entranced me as a little girl. Several months ago I rediscovered Tiffany's extensive assortment of beautiful, tiny treasure chests. These boxes are perfect to hold a loved one's favorite ring or the pair of earring studs she wears every day. They are timeless heirlooms that will be passed down for generations.

When shopping for last-minute special gifts on a budget, remember that it isn't what an item costs that makes it luxurious and memorable. I've purchased some of the most successful special gifts at mall stores like Anthropologie  and Urban Outfitters or at the divine "boutique chain," Francesca's Collections. As cliched as it is to say, what counts with these personal gifts is the thought; if it's useful, even better. To my dear sister, if you're reading this post, I promise it reveals nothing about the last minute gift I'm toting to Charlottesville this year.  But I assure you it was selected with love and affection, and no one deserves these things more than you do.

Kasia Benson is corporate counsel at Essilor of America Inc. in Dallas. She is also the founder of Wardrobe Peace, which provides sensible, “use what you’ve got” wardrobe consulting services to lawyers and other busy professionals.

Houston lawyer dead in apparent murder-suicide in California had obtained Texas court order in custody fight

The Houston patent lawyer found dead along with her mother and two daughters in California on Dec. 14 in an apparent murder-suicide had filed a petition in family court in Harris County on Nov. 16, seeking to modify terms of a custody arrangement with her ex-husband. In Elizabeth Fontaine v. Jason Fontaine, Elizabeth Fontaine sought a "complete no-contact order" and a "stay of the paternal visitation rights" included in the August final judgment in her California divorce from Jason Fontaine. Elizabeth Fontaine had moved to Howrey’s Houston office from the firm’s Irvine, Calif., office in November. On Nov. 20, Associate Judge Robert Newey of the 308th District Court in Harris County signed an order taking emergency jurisdiction and ordering no contact between the couple’s two young daughters and Jason Fontaine until further order. According to the Associated Press, Elizabeth Fontaine moved to Houston after a custody dispute in which she alleged her ex-husband molested the girls, but no charges were ever filed against him and his lawyer said the allegations were false. In an affidavit filed with her petition in Harris County, Elizabeth Fontaine said that following an interview in 2009 with her 4-year-old daughter, Orange County Child Protective Services determined that the allegations against Jason Fontaine were "unfounded." Jason Fontaine’s attorney, John K. York, a solo practitioner in Orange, Calif., did not immediately return a telephone call seeking comment. Jason Fontaine declines comment. The AP reported that on Dec. 14 Elizabeth Fontaine, her mother, Bonnie Hoult, and Fontaine’s two young daughters were shot to death in a house in San Clemente after a California court commissioner in Orange County tentatively ordered Fontaine to give temporary custody of the children to her ex-husband’s sister. Investigators with the Orange County Sheriff’s Department have not determined who fired the gun that killed Fontaine, her mother and the two girls. Jim Amormino, a spokesman for the sheriff’s department, says a deputy answering a call to check on a domestic dispute had just arrived at the house when she heard four shots fired. He says the .357-caliber gun used in the shootings was owned by Hoult. Stephen Cagle, managing partner of Howrey’s Houston office, declines comment. In a Dec. 15 written statement on its Web site, the firm wrote that it is devastated to learn of Fontaine’s death. Fontaine, who joined the firm’s Irvine office in 2005 and recently transferred at her request to Houston, "was a talented lawyer who was advancing quickly in her career at Howrey. We will feel her loss deeply as a friend and as a colleague."

-- Brenda Sapino Jeffreys

High court approves new rules for tenants’ suits in JP courts

Faced with a mandatory deadline set by the Legislature, the state Supreme Court has posted rules governing justice of the peace courts when they handle tenants’ suits that allege housing conditions threaten health or safety. But while the Supreme Court has approved the amendments to Texas Rule of Civil Procedure 737, the public can comment on the new rules until April 1, 2010, says Kennon Peterson, the Supreme Court’s rules attorney. The high court justices signed Miscellaneous Docket 09-9195 on Dec. 14 to amend Rule 737. Peterson says the court had to meet a Jan. 1, 2010, deadline set in S.B. 1448 for the amendments to be in place but can “tweak” them if necessary at the end of the public comment period. Peterson says S.B. 1448, authored by state Sen. Royce West, D-Dallas, expands the powers of JP courts with regard to tenants’ suits. In the past, JP courts could not order repairs or renovations, but the new law gives them that authority, she says. The amended rules set out the requirements for tenants petitions. However, Peterson says the court created a form petition for tenants to use when filing suits. The petition — available on the Supreme Court’s Web site  — is meant to simplify the pleading requirements for tenants who file suits pro se, Peterson says. According to the Supreme Court’s advisory on the amendments, Rule 37 is limited to suits seeking no more than $10,000, including attorney fees.
-- Mary Alice Robbins

Complaint of selective prosecution based on pregnancy rejected by CCA, which cites timeliness, specificity

The state is the victor in today’s ruling by the Court of Criminal Appeals in the case of a woman who complained that the state punished her more severely for using drugs while she was pregnant than it does probationers who are not pregnant. The CCA held in Lovill v. State that the 13th Court of Appeals erred in concluding that Amber Lovill’s selective prosecution complaint was preserved by a specific and timely complaint at trial. Lovill’s complaint was not specific or timely under the requirements set by Texas Rule of Appellate Procedure 33.1, according to the majority opinion written by Judge Mike Keasler. The majority opinion provides the following background on the case: In January 2005, pursuant to a plea agreement, Lovill pleaded guilty to two counts of forgery, and the trial court placed her on probation for three years. The state twice filed motions to revoke Lovill’s probation for alleged violations of the terms and conditions of her probation, including using amphetamines. The trial judge extended the term of Lovill’s probation and ordered her to stay in Nueces County’s Substance Abuse Felony Prosecution Facility special needs unit for three to 12 months. In a motion for new trial, Lovill alleged that she was subjected to selective prosecution because of her pregnancy in violation of the equal protection clauses of the U.S. and Texas Constitutions, the due process clause of the U.S. Constitution and the Texas Equal Rights Amendment. The trial court denied the motion for new trial. Lovill filed a motion to amend the conditions of her probation, which the trial court also denied. Lovill then filed an application for writ of habeas corpus, arguing that she had been selectively prosecuted because of her gender. After the trial court denied habeas corpus relief, Lovill appealed to the 13th Court in Corpus Christi, which ruled for Lovill. The state petitioned the CCA to review the case in March. CCA Judge Cheryl Johnson wrote in a concurring opinion that Lovill’s pregnancy was “incidental” to the motion to revoke her probation. “If her urine samples had been clear of drugs, if she had reported as required, and if she had fulfilled her financial obligations, it is doubtful that a motion to revoke would have been filed,” Johnson wrote. Brian C. Miller, Lovill’s attorney and of counsel at Royston, Rayzor, Vickery & Williams in Corpus Christi, and Douglas Norman, the Nueces County assistant district attorney who petitioned the CCA to review the case, did not immediately return telephone calls for comment.
-- Mary Alice Robbins

Former mayor, judge joins Cox Smith Matthews

Philip D. Hardberger, who previously served as mayor of San Antonio and as chief justice of the 4th Court of Appeals, has joined Cox Smith Matthews as a shareholder, the San Antonio-based firm announced today. Hardberger served two terms as mayor from 2005 to 2009. He sat for 10 years on the appeals court in San Antonio, as associate justice from 1994 to 1998 and as chief justice from 1998 to 2003. His public sector experience also includes serving as assistant director of the U.S. Office of Economic Opportunity during President Lyndon B. Johnson’s administration in the late 1960s and as executive secretary of the U.S. Peace Corps during President John F. Kennedy’s administration in the early 1960s, according to the firm’s announcement. Hardberger did not immediately return a telephone call seeking comment.
-- Jeanne Graham

Texas Supreme Court expands e-submission requirements, but paper filings are still a must

In an order posted Tuesday on its Web site, the Texas Supreme Court requires lawyers to submit electronic copies of most pleadings that they file with the court. Clerk of the Court Blake Hawthorne says the order expands the Supreme Court’s e-briefing program. Hawthorne says the high court previously simply asked for electronic courtesy copies of filings in cases for which it requested briefs. Now, the order requires electronic copies of all petitions, responses and replies in all cases, Hawthorne says. The order requires attorneys to e-mail copies of documents to the Supreme Court clerk, scebriefs@courts.state.tx.us, on the same day they file the original paper documents. According to the order, submitting the electronic copy of the document does not constitute filing the document. The court still requires filings on paper. Hawthorne says, “We are moving toward electronic filing.” The latest estimate by the state’s Office of Court Administration indicates the Supreme Court will have e-filing by May 2010, Hawthorne says. Except for any appendix, the documents must be in PDF (portable document format) and must be searchable by text, according to the order. As noted in the order, scans of original documents will not be accepted. The order, which takes effect Feb. 15, 2010, makes attorneys responsible for redacting sensitive or confidential information from the electronic copies.
-- Mary Alice Robbins

Securities class-action filings down slightly, report finds

NERA Consulting, a firm that provides economic analysis for litigants, released a report today, "Recent Trends in Securities Class Action Litigation: 2009 Year-End Update." It finds that filings of securities class actions dropped slightly nationwide to 235 filings in 2009 as compared to 253 in 2008. (The 2009 cases include those filed through Nov. 30.) But in federal courts in the 5th Circuit, including Texas' four federal districts, such filings more than doubled to 13 in 2009, as compared to six in 2008, according to the study. In federal courts in the 2nd Circuit, which includes New York, securities class action filings outpaced other circuits, as they have historically; plaintiffs filed 75 securities class actions there in 2009, down from 99 in 2008. What has been the resolution for all those filings? The majority of 2009 and 2008 filings are still pending, the study reports. More than 95 percent of the 2009 filings are still unresolved, and more than 77 percent of the 2008 filings are still pending. The average settlement value for cases sank to $12 million in 2009, down from $41 million in 2008, the study reports. The study was authored by NERA senior consultant Dr. Stephanie Plancich and consultant Svetlana Starykh.
-- Miriam Rozen

Sonnenschein reworks associate pay and promotion

Sonnenschein Nath & Rosenthal, which has an office in Dallas, is taking a big step away from lock-step pay and promotion with a new, three-tiered, merit-based “compensation and advancement” model for associates effective Jan. 1, 2010. Associates will be divided into three levels — associate, managing associate and senior managing associate — and they will advance from one level to another once they master skills required at each level, the firm announced in a press release today. Associates can move through the levels at their own pace, so high-performing associates can earn higher compensation, including higher bonuses, than they would have under the current tenure-based compensation plan. Associate bonuses have been tied largely to billable hours, but under the new plan associates will earn bonuses based on how well they meet “parameters” at their level. Also, associates may be able to become partners earlier if they move quickly through the three levels, the release continues. “It’s a very good idea,” says Matthew Orwig, managing partner in Dallas. “This is the trend; this has been the trend; this will continue to be the trend. The good thing about it is the best lawyers can get paid more, and it really is merit-based, and it’s also . . . better value for the client because they know if someone is at a certain level, it’s based on core competencies and rigorous evaluation as opposed to just having been there another year.” He says 17 of the 34 lawyers in Dallas are associates. A firmwide committee of partners and associates worked for several months to develop the new model for associate compensation and advancement. Natalie Spears, a partner in the firm’s Chicago office who headed the committee, wrote in the release that the goal is to provide flexibility for associates. The firm, which has 13 offices in the U.S. and Europe, has about 230 associates.
-- Brenda Sapino Jeffreys

Texas ascends from the holes of hell, according to American Tort Reform Association metrics

The American Tort Reform Association, a Washington, D.C.-based advocacy organization, today released its eighth annual report on what it calls "judicial hellholes." By surveying ATRA members and researching media accounts, academic and public policy studies, court dockets, judicial branch statistics and other publicly available information, the study's authors determined that Texas as a whole no longer deserved a moniker identifying it as one of the nation's "most unfair civil court jurisdictions." The new ATRA report did keep specific regions of Texas, the Gulf Goast and the Rio Grande Valley, on a "watch list" of "judicial hellholes." Since the roster's inception, Texas had gotten off the list only once in 2002. Where were the hotspots, so to speak, this year? New York City and the appellate courts of New Mexico joined the list of "hellholes" for the first time. Among the "perennials" ATRA reported were: South Florida; West Virginia; Cook County, Illinois; and Atlantic County, New Jersey.

-- Miriam Rozen

Dick DeGuerin, Rod Ponton file new challenge to Texas Open Meetings Act

Four cities and 16 elected officials today filed a suit in the U.S. District Court for the Western District of Texas in Pecos, seeking to have a portion of the Texas Open Meetings Act declared unconstitutional. The plaintiffs allege in their original complaint in City of Alpine, et al. v. Abbott, et al. that TOMA, as interpreted by a series of opinions by the Texas attorney general and appellate courts, “prevents elected officials from doing what they are elected to do – speak in public or private on issues facing the public.” Dick DeGuerin, one of the attorneys representing the plaintiffs, said at a news conference on the steps of the Texas Capitol that TOMA’s original purpose was to prohibit secret meetings and secret agreements.  “But it has gone far beyond that,” said DeGuerin, a partner in Houston’s DeGuerin & Dickson. The plaintiffs allege in their complaint that TOMA is facially overbroad and unconstitutional as applied. TOMA is in Chapter 551 of the Texas Government Code. As alleged in the complaint, Government Code §551.144 “prohibits a quorum of a city council from communicating, receiving, or sending communications except at a public meeting.” DeGuerin said members of a city council, county commissioners court or other elected officials, with the exception of state legislators who are exempt under TOMA, cannot speak on an issue at the Capitol without running the risk of going to jail. Alpine solo Rod Ponton, another attorney representing the plaintiffs, said, “That’s censorship of political speech, and that violates the First Amendment rights of public officials to speak out.” An offense under §551.144(a) is a misdemeanor punishable by a fine of up to $500 and/or confinement in county jail for up to six months. Defendants in City of Alpine are Texas Attorney General Greg Abbott and the state. Jerry Strickland, spokesman for the Texas Office of the Attorney General, writes in an e-mail, “In this case, elected officials, municipalities and critics of open government are turning the First Amendment on its head. The First Amendment is furthered, not frustrated, by open meetings laws. And for that reason, open meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue.” DeGuerin said the plaintiffs’ suit, if successful, will not affect the prohibitions against secret meetings and secret agreements. This is the second suit challenging TOMA in which DeGuerin and Ponton have been involved. In 2006, U.S. District Judge Rob Junell of the Western District in Midland upheld the constitutionality of TOMA in Rangra, et al. v. Brown, et al., a case involving former members of the Alpine City Council. A three-judge panel of the 5th U.S. Circuit Court of Appeals reversed Junell in April, holding that elected officials, when carrying out their official duties, have the same free-speech rights as other citizens.  In September, the 5th Circuit, sitting en banc, dismissed Rangra for mootness because the plaintiffs were no longer on the city council. DeGuerin, Ponton and other attorneys are representing the plaintiffs in City of Alpine on a pro bono basis.  “I paid the filing fee myself,” Ponton says in an interview.
-- Mary Alice Robbins

New member appointed to the State Commission on Judicial Conduct

Judge Edward J. Spillane III, presiding judge of the College Station Municipal Court since 2002, is the newest member of the State Commission on Judicial Conduct. The commission announced in a news release issued Friday that the Texas Supreme Court has appointed Spillane to the 13-member commission to replace Judge Monica Gonzalez of the San Antonio Municipal Court No. 7.  Spillane, current president of the Texas Municipal Courts Association, says serving on the judicial conduct commission will give him a chance to serve the state by helping to make sure judges have the highest ethical behavior.
-- Mary Alice Robbins