My Work Product for Fernandez Cause

Chief JusticeThomas R. PhillipsJustices Nathan L. HechtPriscilla R. OwenHarriet O'NeillWallace B. JeffersonMichael H. SchneiderSteven W. SmithDale WainwrightScott A. Brister







































Justice Wallace B. Jefferson
05/10/2001
Investiture for Justice Jefferson


Justice Jefferson was appointed to the Court in March 2001 by Gov. Rick Perry and was elected in 2002. Justice Jefferson, who won two cases decided by the U.S. Supreme Court, had been a partner in San Antonio's Crofts, Callaway & Jefferson, an appellate-specialty law firm. A lifelong resident of San Antonio, he is a graduate of the James Madison College at Michigan State University and the University of Texas School of Law.
Justice Jefferson is certified in civil appellate law by the Texas Board of Legal Specialization. He practiced law in San Antonio with Groce, Locke and Hebdon from 1988 until he helped found Crofts, Callaway & Jefferson in 1991. He served as San Antonio Bar Association president in 1998-99 and was the San Antonio Young Lawyers Association's Outstanding Young Lawyer in 1997.
He was among the "40 Under 40 Rising Stars" named by the San Antonio Business Journal in 1996 and received the "Pillars of the Foundation" award by the North side Independent School District in San Antonio. He served as a director of the San Antonio Public Library Foundation, of the Alamo Area Big Brothers/Big Sisters and on the education committee of the San Antonio Area Foundation.
His term ends December 31, 2006.
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Justice Scott A. Brister

Justice Brister was appointed November 21 by Gov. Rick Perry to replace Justice Craig T. Enoch, who retired October 1. Justice Brister had been chief justice of the 14th District Court of Appeals in Houston since 2001.
A native of Waco, Justice Brister is a summa cum laude graduate of Duke University, where he was Phi Beta Kappa, and a cum laude graduate of Harvard Law School. After law school he was a briefing attorney for Chief Justice Joe Greenhill at the Texas Supreme Court in 1980-1981, then practiced law with Andrews & Kurth in Houston. In 1989, Gov. Bill Clements appointed him judge of the 234th District Court in Harris County, to which he was elected in 1990 and re-elected in 1994 and 1998. He was civil administrative judge for the Harris County district courts in 1998-1999.
In November 2000 Justice Brister was elected to the First District Court of Appeals in Houston and served until Gov. Perry appointed him chief justice In November 2000 Justice Brister was elected to the First District Court of Appeals in Houston and served until Gov. Perry appointed him chief justice of the 14th Court of Appeals in 2001. He won election to that position in November 2002.
Justice Brister twice was specially appointed to the Texas Supreme Court as an interim justice, in 2000, by Gov. George W. Bush, and in 2001, by Gov. Perry.
He is board-certified in civil trial law and personal injury trial law. He previously served on the five-member Judicial Panel on Multidistrict Litigation, the Supreme Court Advisory Committee and the Supreme Court Jury Task Force.
He is a fellow of the Houston and state bar foundations and a member of the College of the State Bar of Texas. He is a co-author of “Texas Pretrial Practice” and has written law review articles in the Baylor Law Review and St. Mary’s Law Journal.
Justice Brister and his wife, Julia Upton Brister, have four daughters, Elizabeth, Susannah, Sarah and Mattie. They are members of the Salem Lutheran Church in Tomball.
His term ends at the end of 2004.
of the 14th Court of Appeals in 2001. He won election to that position in November 2002.
Justice Brister twice was specially appointed to the Texas Supreme Court as an interim justice, in 2000, by Gov. George W. Bush, and in 2001, by Gov. Perry.
He is board-certified in civil trial law and personal injury trial law. He previously served on the five-member Judicial Panel on Multidistrict Litigation, the Supreme Court Advisory Committee and the Supreme Court Jury Task Force.
He is a fellow of the Houston and state bar foundations and a member of the College of the State Bar of Texas. He is a co-author of “Texas Pretrial Practice” and has written law review articles in the Baylor Law Review and St. Mary’s Law Journal.
Justice Brister and his wife, Julia Upton Brister, have four daughters, Elizabeth, Susannah, Sarah and Mattie. They are members of the Salem Lutheran Church in Tomball.
His term ends at the end of 2004.

Justice Harriet O'Neill was elected to the Texas Supreme Court in November of 1998. Before her election, she served as a Justice on the Fourteenth Court of Appeals in Houston. She was appointed to the appellate court by Governor George W. Bush in 1995, and was subsequently elected to a full term. Justice O'Neill left the court of appeals with a 91% approval rating (1998 Houston Bar Poll), the highest rating on her nine-member court. Before her appointment to the court of appeals, Justice O'Neill served as the Judge of the 152nd District Court in Houston. She was elected to the district court in November of 1992. In 2002, the Texas Association of Civil Trial and Appellate Specialists named Justice O’Neill the Appellate Justice of the Year.
In the ten years prior to her election to the bench, Justice O'Neill practiced law in Houston, where she concentrated primarily in complex business and commercial litigation. She practiced with the firms of Porter & Clements and Morris & Campbell, then opened her own office when she decided to devote a substantial portion of her time to mediating legal disputes.
Justice O'Neill graduated in 1982 from the University of South Carolina School of Law, where she was a member of the academic honors society and served as the law school representative to the American Bar Association. She returned in the spring of 2002 as the law school’s "Jurist in Residence," and this fall received the University of South Carolina Distinguished Alumnae Award. Justice O’Neill earned her undergraduate degree, with Honors, from Converse College, and studied at University College in Oxford, England. In 2001, Converse awarded Justice O’Neill an honorary doctorate degree.
In addition to her many civic and professional activities, Justice O'Neill is a frequent author and speaker. In 2001, she was the First-Prize Winner in the National Law Day Speech Awards. Her speech was entitled "Protecting the Best Interests of Our Children," and focused on the history of juvenile justice in this country and the law’s attempts to serve the interests of children. She also writes and lectures frequently for continuing legal education programs, having most recently served as Course Director for the Texas Advanced Civil Trial Course.
Justice O’Neill has two daughters who are actively involved in sports and school activities. She has particularly enjoyed coaching their basketball teams, both in Houston and at the West Austin Youth Association.




Justice Priscilla Owen was elected to the Supreme Court of Texas in 1994 and reelected in 2000. She is a native Texan and earned her B.A. from Baylor University and her J.D. in 1977 from the Baylor University School of Law, where she ranked in the top of her graduating class.
Before her election, Justice Owen was a partner in the Houston firm of Andrews & Kurth, L.L.P where she practiced commercial litigation for seventeen years. She was admitted to practice before the United States Courts of Appeals for the Fourth, Fifth, Eighth and Eleventh Circuits. Justice Owen was chosen as Baylor Young Lawyer of the Year and one of Baylor's Outstanding Young Alumna. She is a member of the American Law Institute and serves as the Supreme Court's liaison to the Texas Legal Services for the Poor Special Committee, and the Supreme Court Advisory Committee on Court-Annexed Mediations.
Her term on the Supreme Court is through the year 2006.

Justice Nathan L. Hecht was elected to the Texas Supreme Court in 1988 and reelected in 1994. He began his judicial service on the 95th District Court of Dallas County, to which he was appointed on September 1, 1981, elected in 1982, and reelected in 1984. In l986, he was elected to the Court of Appeals for the Fifth District of Texas at Dallas, where he served until his election to the Supreme Court.
Justice Hecht earned his B.A. at Yale University with honors in philosophy, and graduated cum laude from the Southern Methodist University School of Law. He was a law clerk to Judge Roger Robb of the U.S. Court of Appeals for the District of Columbia Circuit. He also served as a Lieutenant in the U.S. Naval Reserve. He practiced law in the area of general litigation with the Dallas firm of Locke Purnell Boren Laney & Neely, and was a shareholder in that firm prior to his appointment of the bench.
While on the District Court, Justice Hecht was local administrative judge, presiding over all county and district judges in Dallas county and representing them before other branches of government. Throughout his tenure on the Supreme Court, Justice Hecht has been designated to oversee all changes in state court rules.
Justice Hecht is a member of the American Law Institute, the Texas Philosophical Society, and a Fellow of the Texas and American Bar Foundations. He is on the advisory board of the S.M.U. Law Review and was named Outstanding Young Lawyer in 1984 by the Dallas Association of Young Lawyers.
His term ends at the end of 2006.


Justice Dale Wainwright was elected to the Supreme Court of Texas on November 5, 2002, after serving as presiding judge of the 334th Civil District Court in Harris County.
Justice Wainwright was appointed to the civil district court in 1999 by then-Gov. George W. Bush. The Houston bar gave Judge Wainwright a 90 percent approval rating in the 2001 judicial evaluation poll, with almost two-thirds of that rating being “outstanding.” He resolved over 3,000 cases and reduced his docket by approximately 20 percent. He served as chair of internal procedures for the Harris County civil district courts and was responsible for supervising the ancillary docket and scheduling trials of mass tort cases for the 25 civil district courts. In 2001, Gov. Rick Perry appointed Wainwright to a temporary commission as justice on the Supreme Court. Wainwright is a member of the American Law Institute.
Before his appointment to the bench, Justice Wainwright practiced in the trial sections of the firms of Haynes and Boone and Andrews & Kurth in Houston, Texas. He earned his law degree from the University of Chicago Law School in 1988, studied at the London School of Economics in 1981 and earned his undergraduate degree from Howard University, summa cum laude, in 1983. He was valedictorian of his high school graduating class in 1979.
Justice Wainwright has a long history of public service, having co-founded the Aspiring Youth Program, a national program to assist inner-city youth; served on the board of directors of the Houston Bar Association, the Houston Volunteer Lawyers Program and the Texas Young Lawyers Association; and served as president of the Houston Young Lawyers Association. He received the Legal Excellence Award in 2000 from the NAACP and was recognized for outstanding legal service by the Houston Lawyers Association. In 1995, Chief Justice Tom Phillips appointed him to a task force of the Texas Commission on Judicial Efficiency. He has also volunteered at the YMCA and coached Little League baseball.
He and his wife, Debbie, have three sons – Jeremy, Phillip and Joshua – and are members of the Second Baptist Church in Houston.
His term ends at the end of 2008.





Justice Smith, a fifth-generation Texan whose family originally settled in East Texas in the 1870s, was elected to the Court in 2002. He was reared in Fort Worth and attended schools in the Everman Independent School District. In 1983, Justice Smith became the first in his extended family to graduate from college when he obtained a bachelor's of business administration in finance from the University of Texas at Arlington. In 1986 he graduated with honors from the University of Texas School of Law. After law school, he clerked for U.S. District Judge Terry R. Means of Fort Worth, served for four years as legislative counsel for the Texas Legislature and was in private practice in Austin. He filed and litigated the Hopwood case that eliminated racial preferences for admission and scholarships at Texas universities. Justice Smith's wife, Susan, an attorney, is a longtime employee of the Texas Education Agency. They have two daughters, Emily and Allison. Justice Smith's parents reside in the Fort Worth area, where his father is a small businessman and his mother works for the Southern Baptists of Texas Convention. His term ends December 31, 2004. LIAISON ASSIGNMENTS Court of Appeals Docket Equalization






Justice Schneider

Service on the Court:Appointed by Governor Rick Perry, Justice Mike Schneider joined the Supreme Court in September, 2002.
Prior Judicial Service:Served 7 years as Chief Justice of the First Court of Appeals. He was appointed to the First Court of Appeals by Governor George W. Bush in 1996, elected later that year and elected again in 1998.Justice Schneider served 5 years as a district judge prior to becoming Chief Justice. He was twice elected presiding judge of the 157th Civil District Court in Harris County, in 1990 and 1994. He began his judicial career as a municipal judge in the City of West University Place, where he served for 12 years while maintaining a full-time law practice.
Legal and Preparatory Education:University of Virginia School of Law, L.L.M.University of Houston, College of Law, Juris DoctorateStephen F. Austin State University, Bachelor of ScienceLon Morris College, Associate of Arts
Prior Professional Experience:Judge Schneider had 20 years' legal experience before being elected a district court judge. He started his legal career as an Assistant District Attorney for Harris County. Afterwards, he practiced law as a civil trial, corporate, and international transactions lawyer. He represented clients in most of North America, and in such varied places as South and Central America, Canada, East and West Africa, Western Europe, the Middle East, the People’s Republic of China, Indonesia, and other Pacific Rim countries.
He taught government and American history at Ball High School in Galveston.
He held a variety of jobs during college and law school adding to his life experience and preparing him for working with people and their problems. These jobs included searching titles at a major oil company, managing apartments, driving ambulances, operating a school bus for disabled children, working at a funeral home, teaching school, delivering milk, clerking for a law firm, managing a college cafeteria, serving as a waiter, bell hopping at a hotel, and serving as an intern at the United States Attorney's Office.
Honors and Awards:Judge Schneider was named "Trial Judge of the Year" in 1994 by the Texas Association of Civil Trial and Appellate Specialists. He was again honored by the same group in June 2001 by being named “Appellate Judge of the Year.” He was the first recipient of "Sandy Kempner Memorial Award" for outstanding teacher at Ball High School in 1966.
Other Background Information:Justice Schneider is a native Texan, being raised in East Texas. He attended high school in Lufkin and graduated from Garrison High School in Nacogdoches County.
Memberships and Professional Affiliations:State Bar of Texas, Houston Bar Association, Houston Bar Foundation, Texas Bar Foundation, American Bar Association, St. Luke’s United Methodist Church, Houston.
Born:January 6, 1943, in San Antonio, Texas
Hometown:Garrison, Texas


Thomas R. Phillips was appointed Chief Justice of the Supreme Court onJanuary 4, 1988, and was subsequently elected in 1988, 1990, 1996 and 2002.A Dallas native, Phillips earned a B.A. from Baylor University and aJ.D. from Harvard Law School. After serving one year as a briefingattorney to Justice Ruel C. Walker of the Supreme Court of Texas,Phillips was a trial attorney with Baker & Botts in Houston for nearlysix years. In 1981, he was appointed by Governor William P. Clements asjudge of the 280th District Court in Harris County.Chief Justice Phillips is past president of the National Conference ofChief Justices and past chair of the Board of Directors of the NationalCenter for State Courts. He is an elected member of the American LawInstitute, serving as an advisor to its Federal Judicial Code project.From 1989 to 1996 he served on the Federal-State Jurisdiction Committeeof the Judicial Conference of the United States and is a director of theAmerican Judicature Society. He is a member of both the PhilosophicalSociety of Texas and the Houston Philosophical Society and the board ofthe Southwestern Legal Foundation.By virtue of his office, Chief Justice Phillips chairs both the TexasJudicial Council and Texas Judicial Districts Board. He was president ofthe Harvard Law School Association of Texas in 1981-1982 and serves onseveral boards and committees at Baylor University.Chief Justice Phillips received the Texas Chamber of Commerce Award ofExcellence in Government in 1992, the Outstanding Texas Leader Awardfrom the John Ben Sheppard Public Leadership Forum in 1989, and theHouston Outstanding Young Lawyer Award from the Houston Young LawyersAssociation in 1986. He was awarded an honorary L.L.D. from Texas TechUniversity in 1997 and an honorary D.H.L. from St. Edward's Universityin 1998 and was named a Distinguished Alumnus of Baylor University in1998. In 1999 the National Center for State Courts honored him with itsDistinguished Service Award.His current term ends in 2008. Chief Justice Phillips has announced hisretirement from the Court effective September 3, 2004. His successor willbe appointed by Gov. Rick Perry.
OF COUNSEL
AUSTIN OFFICE100 Congress AvenueSuite 300Austin, TX 78701-4042(512) 305-4753(512) 391-4753 FaxDownload a V-Card
PRACTICESAppellateAppellate
EDUCATIONJuris Doctor degree from South Texas College of Law in 1987; Articles Editor, South Texas Law Review; Recipient, American Jurisprudence Award, Oil & GasBachelor of Science from The University of Texas at Tyler in 1982
ADMITTED TO PRACTICE
Texas, 1987


MOLLY HATCHELLmhhatchell@lockeliddell.com
AREAS OF PRACTICEMs. Hatchell has experience on more than fifty state and federal appeals. She has argued cases before the Tyler, Texarkana, Corpus Christi, and Eastland Court of Appeals, as well as the federal Fifth Circuit Court of Appeals.

PROFESSIONAL HISTORYOf Counsel for the law firm Locke Liddell & Sapp LLP, May 2004 – present Shareholder for the law firm Hatchell PC in Tyler, Texas, 2000 – April 2004Shareholder (1997 – 2000), Associate (1990 – 1997) for the law firm Ramey & Flock, P.C. in Tyler, TexasBriefing Attorney for Justice Bill Bass, Twelfth Court of Appeals, 1989 – 1990 Briefing Attorney for Chief Justice Paul W. Nye, Thirteenth Court of Appeals, 1987 – 1989Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, 1992
PROFESSIONAL AFFILIATIONS AND AWARDSDirector, Smith County Bar Association, 2002 – 2004 State Bar of Texas, Court Rules Committee, 1994 – 1997 State Bar of Texas, CLE Committee, 1994 – 1997 Appellate Practice & Advocacy Section: Appellate Rules Committee, 1994 – 1996; Nominating Committee, 1994; Liaison Committee, 1996 – 1997; Professionalism Committee, 1997 – 1998Planning Committee, 1997 Appellate Rules Seminar, State Bar of TexasPlanning Committee, 1995 Appellate Practice Institute, State Bar of TexasPlanning Committee, 1994 Advanced Appellate Practice Course, State Bar of Texas Named a “Super Lawyer” in Appellate Practice for the Dallas/Fort Worth region, Texas Monthly Survey 2003 Received the highest rating in the Martindale-Hubbell Legal Directory
PRESENTATIONS AND PUBLICATIONS“Class Actions,” Texas Litigation Guide, Chapter 13 (2001, 2004), Co-Author with William V. Dorsaneo, III. “What Issues are Being Granted by the Supreme Court,” 2004 State Bar of Texas, Practice Before the Texas Supreme Court Seminar, Co-Author with Mike Hatchell.“Back to the Future: What the Supreme Court of Texas May Do That Will Significantly Affect Your Practice,” 2003 Corpus Christi Bar Association Civil Appellate Seminar, Co-Author with Mike Hatchell.“Appellate Road Show,” 2003 State Bar of Texas, Appellate Section Seminar, Tyler, Texas, Panel Member.“Reply Don’t Repeat – Strategies and Secrets for Persuasive Reply Briefs,” 2003 State Bar of Texas 17th Advanced Civil Appellate Practice Course, Co-Author with Mike Hatchell.“What’s Hot and What’s Not in Supreme Court Decision Making,” 2001 University of Texas 11th Annual Conference on State and Federal Appeals, Co-Author with Mike Hatchell.Black’s Law Dictionary, (7th Edition, 1999), Consultant – Reader.“Tips for Practicing Under the New Appellate Rule,” 1998 Practice Skills for the Legal Assistant Seminar, Speaker and Author.“Trends in Decision-Making by the 1990’s Texas Supreme Court,” 1996 University of Texas 6th Annual Conference on State and Federal Appeals, Co-Author with Mike Hatchell.“It’ll Be A Great Game When I Learn The Rules – Highlights from the Proposed Amendments to the Rules of Appellate Procedure,” 1996 SMU Advanced Civil Trial and Appellate Advocacy Seminar, Co-Author with Mike Hatchell.“The Mechanisms by Which the Supreme Court Decides Cases,” 1996 State Bar of Texas Legislative and Case Law Update for Litigators, Co-Author with Mike Hatchell.“Playing By The Rules,” 1995 State Bar of Texas Advanced Civil Appellate Practice Course, Co-Speaker and Co- Author with Mike Hatchell.“Overview of an Appeal and the Appellate Process,” 1995 State Bar of Texas Appellate Practice Institute, Co- Speaker and Co-Author with L. Gallagher.“Summary Judgments,” 1993 Advanced Civil Trial Seminar, Co-Author with Mike Hatchell.“Appellate Practice Update, The Supreme Court of Texas,” 1991 Techniques for Handling Appeals in State and Federal Court, Co-Author with J. Knight and Chief Justice Thomas Phillips.

OF COUNSEL
AUSTIN OFFICE100 Congress AvenueSuite 300Austin, TX 78701-4042(512) 305-4746(512) 391-4746 FaxDownload a V-Card
PRACTICESLitigationAdministrative/RegulatoryAppellateAppellateInternational
EDUCATIONJuris Doctor degree from The University of Houston School of Law in 1966 L.L.M. degree from The University of Virginia Law School in 1986Bachelor of Arts degree, in Government, The University of Texas at Austin in 1963
ADMITTED TO PRACTICE
Texas, 1966
United States Supreme Court and the United States Court of Appeals, Fifth Circuit


RAUL A. GONZALEZrgonzalez@lockeliddell.com
AREAS OF PRACTICEOf Counsel practicing in the area of state and federal appeals. Mr. Gonzalez has substantial experience in Texas civil and appellate procedures, mediation and arbitration, and has represented clients in civil trial and appellate matters.

PROFESSIONAL HISTORYOf Counsel, Locke Liddell & Sapp LLP Justice, Texas Supreme Court, Austin, Texas - October 1984 - December-1998 Associate Justice, Thirteenth Court of Appeals, Corpus Christi, Texas - September 1981-October 1984 District Judge, 103rd District Court, Brownsville, Texas - 1978-1981 Diocesan Attorney, Brownsville Catholic Diocese, Brownsville, Texas - 1976-1978 Private practice, Civil and Criminal, Gonzalez & Hamilton, Brownsville, Texas - 1973-1978 Assistant United States Attorney, Southern District of Texas, Chief of Brownsville Division, Brownsville, Texas, August, 1969-June 1973 Attorney, Houston Legal Foundation, Houston, Texas - 1966-1969 Assistant City Attorney, City of Houston, Texas - 1966ADR Training - Harvard Negotiation Project; American Academy of Attorney-Mediators
PROFESSIONAL AFFILIATIONS AND AWARDSMember, Institute for Transactional Arbitration Advisory Board Member, American Arbitration Association Trustee, Texas State History Museum Foundation Member, Christian Legal Society Outstanding Alumnus - University of Houston Law School, 1987-88 Rosewood Gavel Award - Outstanding Jurist - St. Mary�s Law School, 1989 Who�s Who in American Law Distinguished Service Award - Brownsville Jaycees Outstanding Performance Rating - Department of Justice Frequent Lecturer for judicial and attorney continuing education programs

Headline News"Raul Gonzalez Appointed to University of Houston's Board of Regents" — 11/12/2001 "Volunteer Spotlight: Justice Raul Gonzalez" — 3/28/2001

OF COUNSEL
AUSTIN OFFICE100 Congress AvenueSuite 300Austin, TX 78701-4042(512) 305-4752(512) 391-4752 FaxDownload a V-Card
PRACTICESAppellateAppellate
EDUCATIONL.L.B., The University of Texas School of Law, 1964; Phi Alpha Delta Legal Fraternity; Hildebrand Moot Court Competition Finalist and Best Brief Award, 1962; Moot Court Board of Managers; Chairman, Law Day, 1964Bachelor degree, Business Administration from The University of Texas in 1961
ADMITTED TO PRACTICE
Texas, 1964
The Supreme Court of Texas
The United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Eighth Circuit
The Supreme Court of the United States


MIKE HATCHELLmahatchell@lockeliddell.com
AREAS OF PRACTICEMr. Hatchell has experience as lead counsel in over one hundred appeals. He has argued more than thirty appeals in the Supreme Court of Texas, en banc to the federal Fifth Circuit Court of Appeals twice, and in all fourteen courts of appeals in Texas. Mr. Hatchell has specialized in appeals to all local and federal appellate courts since 1965.

PROFESSIONAL HISTORYOf Counsel for the law firm Locke Liddell & Sapp LLP, Head of the Firm’s Appeals Section, May 2004 – present Shareholder for the law firm Hatchell PC in Tyler, Texas, February 2001 – April 2004Attorney, Partner, and Shareholder with Ramey & Flock, P.C. in Tyler, Texas, 1965 –January 2001Briefing Attorney for the Senior Associate Justice, Meade F. Griffin, The Supreme Court of Texas, 1964 – 1965Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization
PROFESSIONAL AFFILIATIONS AND AWARDSMember, Supreme Court Advisory CommitteeMember, Supreme Court Task Force on Judicial Campaign ContributionsMember, Supreme Court Task Force on Revision of Charge RulesMember, Smith County Bar Association (Sec. 1968, Treasurer 1969, President, 1983)Member, The State Bar of Texas (Organizer, Chairman- Elect, Chairman, Immediate Past Chairman, Appellate Practice and Advocacy Section, State Bar of Texas, 1988 – 1990) Member, Bar of the Fifth Federal Circuit (Seminar Planning Committee, 1988)Past Member, Civil Appellate Law Specialization Commission (1988 – present)Fellow, Texas Bar FoundationReceived highest rating in the Martindale-Hubbell Legal SurveyRecognized as one of the top five appellate lawyers in Texas, “Top Notch” Lawyer Survey, 2002 Texas Lawyer MagazineNamed one of the “Top 100 Texas Super Lawyers,” 2003 Texas Monthly Magazine Legal Secretaries Associations – numerous talks to local and statewide meetings of legal secretaries on various aspects of professionalism in the vocation of the legal secretary.
PRESENTATIONS AND PUBLICATIONS2000-2004 – State Bar – “Supreme Court Update – Telephone Seminar” – Series of seminars. Panel Discussion. Speaker. 2004 – 14th Annual Conference on State and Federal Appeals – “Arguing Like and Advocate, Thinking Like a Judge.” Panel Discussion. Speaker.2004 – State Bar of Texas, Practice Before the Texas Supreme Court Seminar – “What Issues are Being Granted by the Supreme Court.” Author – Speaker.2003 – Corpus Christi Bar Association Civil Appellate Seminar – “Back to the Future: What the Supreme Court of Texas May Do That Will Significantly Affect Your Practice.” Author – Speaker.2003 – State Bar of Texas, Appellate Section Seminar – “Appellate Road Show.” Panel Discussion. Speaker.2003 – 17th Advanced Civil Appellate Practice Course – “Reply, Don’t Repeat – Strategies and Secrets for Persuasive Reply Briefs.” Author – Speaker.2002 – Dallas Bar Association, “Conflict Jurisdiction in the Texas Supreme Court.” Speaker.2002 – Corpus Christi Bar Association Appellate Seminar – Civil Appellate Practice for Trial & Appellate Lawyers – “Appellate Judges Panel Discussion.” Moderator.2002 – Advanced Civil Appellate Practice Course – “Strategies for the Appellant and Appellee.” Speaker.2002 – 12th Annual Conference on State and Federal Appeals – “Motions for Rehearing.” Speaker.2002 – Houston Bar Association – Appellate Practice Section – “What’s All the Conflict About – Conflict Jurisdiction.” Speaker.2001 – Advanced Personal Injury Law Course – “Supreme Court Update.” Panel Discussion. Speaker.2001 – 11th Annual Conference on State and Federal Appeals – “What’s Hot and What’s Not in Supreme Court Decision Making.” Author – Speaker.2000 – 14th Annual Advanced Civil Appellate Practice Course – “Judges vs. Juries: A Debate.” Panel Discussion. Speaker.1999 – Appellate Law in the New Millennium: Bridging Theoretical Foundation with Practical Application – “Political Nature of Appellate Law.” Panel Discussion. Speaker.1998 – 12th Annual Advanced Civil Appellate Practice Course – “Are Fact Issues Becoming Legal Issues, etc.” Panel Discussion. Speaker.1998 – 14th Annual Advanced Personal Injury Law Course – “Supreme Court Update.” Panel Discussion. Speaker.1998 – 8th Annual Conference on State and Federal Appeals “Supreme Court Panel.” Moderator of Panel Discussion. 1997 – Practicing Law Under The Rules of Trial And Appellate Procedure – “Old Dogs and New Tricks: The Top 10 Things You Ought to Know About the New Petition for Review Practice.” Author – Speaker.1997 – 11th Annual Advanced Civil Appellate Practice Course – “Issue-Framing: The Upshot of it All.” Co- Author – Speaker.1997 – 13th Annual Advanced Personal Injury Law Course 1997 – “Trends in Decision-Making by the 1990’s Texas Supreme Court.” Co-Author – Speaker.1997 – 7th Annual Conference on State and Federal Appeals “Understanding the New Petition for Review Process.” Moderator of Panel Discussion by Supreme Court Justices.May 28, 1997 – Houston Bar Association, Appellate Practice Section – “Reversing Cases on Evidence Points.” Author – Speaker.1996 – Tenth Annual Advanced Civil Appellate Practice Course – “Factual and Legal Sufficiency in the Texas Supreme Court: A Debate.” Moderator.1996 – Sixth Annual Conference on State and Federal Appeals – “Trends In Decision-Making By The 1990’s Texas Supreme Court.” Author – Speaker.1996-2002 – Participated in various panel discussions – Supreme Court Update Telephone Seminar with Russell H. McMains and Prof. L. Wayne Scott.1996 – Texas Association of Defense Counsel, Inc. – Spring Meeting Program – Participated in panel discussion on “Daubert & Robinson – From Theory to Practice” with James Anthony, Cliff Hutchinson and David Holman.1996 – Advanced Civil Trial and Appellate Advocacy Seminar – “It’ll Be A Great Game When I Learn The Rules” – Highlights From The Proposed Amendments To The Rules Of Appellate Procedure. Author – Speaker.1995 – Ninth Annual Advanced Civil Appellate Practice Course – “Playing By The Rules.” Author – Speaker.1995 – Participated in panel discussion on “Update on Significant Recent Cases” with Mike Jung, Ben Taylor and David Keltner. TADC Spring Meeting in Houston.1994 – Eighth Annual Advanced Civil Appellate Practice Course – “How to Succeed in the Supreme Court.” Speaker.July 27, 1994 – Houston Bar Association, Appellate Section – “Ten Most Common Mistakes on Brief Writing.” Speaker.1994 – Advanced Civil Trial Short Course – “The Effective Appellate Brief.” Author – Speaker.1994 – Ninth Annual Fifth Circuit Appellate Practice and Advocacy Seminar – “Analysis of the Appeal.” Author – Speaker.1994 – Appellate Practice Institute – “The Effective Appellate Brief.” Author – Speaker.1993 – Advanced Civil Appellate Practice Course – “What You Don’t Know Can Hurt You – A Dozen Landmines in Texas Practice.” Speaker.1993 – Third Annual Conference on Techniques for Handling Civil Appeals in State and Federal Court – “Preservation of Error Prior to the Charge Stage.” Speaker.1993 – Advanced Civil Trial Seminar – “Summary Judgments.” Speaker.1992 – Sixth Annual Advanced Civil Appellate Law Course – “Ten Worst Traps.” Speaker.1992 – Second Annual Seminar – Techniques for Handling Civil Appeals in State and Federal Court – “Preservation of Error Prior to the Charge Stage in State Court.” Speaker.1992 – Advanced Civil Trial Short Course by SMU – “Objections, Motions in Limine, Offers of Proof and Bills of Exception.” Speaker.1992 – Advanced Civil Trial Law Seminar – “How to Preserve Error on Evidentiary Rulings by the Trial Court.” Author – Speaker.1992 – Dallas Bar Association Appellate Law Section’s meeting – “Motions for Rehearing.” Speaker.1991 – Advanced Civil Appellate Practice Course – “Ten Worst TRAP’s.” Speaker.1991 – Seventh Annual Advanced Personal Injury Law Course – “Court’s Charge.” Speaker.1991 – Advanced Civil Trial Short Course – “Preserving the Right to Complain; Prosecuting the Appeal in Non-Jury Cases.” Author – Speaker.1991 – Litigation Update – “The Texas Supreme Court, 1990: That Was the Year That…” Speaker.1990 – Advanced Appellate Practice Course – “Legal Analysis.” Speaker.1990 – Institute for Appellate Staff, Research and Briefing Attorneys – “An Attorney’s Perspective of the Appellate Courts.” Speaker.1990 – Laredo-Webb County Bar Association – “Reversing Cases on Evidence Points.” Speaker.1990 – Appellate Practice and Advocacy Section’s Program – Demonstration Argument – “Effective Oral Argument – A Demonstration and Critique.”1990 – Advanced Civil Trial Short Course – “Preserving the Right to Complain; Prosecuting the Appeal in Non-Jury Cases.” Author – Speaker.1990 – Seminar – Suing and Defending Governmental Entities and Officials – “Bad Faith.” Speaker.1989 – Advanced Appellate Judicial Seminar, First Court of Appeals, Houston – “Critique of the Court.” Speaker.1989 – Third Annual Advanced Appellate Practice Course – “Reversing Cases on Evidence Points.” Author – Speaker.1989 – SMU’s Advanced Civil Trial Short Course – “Summary Judgment Practice in Texas and Federal Courts.” Author – Speaker.1989 – The Tort of Bad Faith – Commercial, Insurance, and Beyond (An Institute Series) – “Protecting The Record – Avoiding Double Recovery While Protecting The Right To Any Tort Recovery – The Damage Submission Dilemma In Mixed Liability Theory Cases.” Speaker.1988 – Advanced Appellate Practice Course – “The Effective Appellate Brief.” Author – Speaker.1988 – SMU’s Modern Trends in Business Torts Litigation Seminar – “Summary Judgment Practice in Texas and Federal Courts.” Author – Speaker.1987 – St. Mary’s Ninth Annual Procedural Institute – “Changes in Appellate Practice.” Author – Speaker.1987 – Advanced Appellate Practice Course – Course Director.1987 – Tenth Annual Advanced Trial Course – “Attacking the Judgment Appeal – The Bill of Review.” Author – Speaker.1987 – SMU’s Texas Civil Trial Short Course – “Summary Judgment Practice in Texas Courts.” Author – Speaker.1986 – SMU’s Advanced Civil Trial Short Course – “Appellate Practice and Procedure.” Author – Speaker.1985 – SMU’s First Biennial Short Course on Advanced Civil Trial Practice – “Summary Judgment Practice in Texas Courts.” Author – Speaker.1985 – Appellate Practice: Performance Enhancement Course – “How to Write Briefs Which Persuade the Appellate Court.” Course Director, Author and Speaker.May 1984 – General Trial Section – Highlights of the New Rules and Venue.1984 – Advanced Civil Trial Course – “Protecting the Record, Perfecting the Appeal, and Appellate Jurisdiction.” Author – Speaker.1983 – Advanced Civil Trial Course – “Appellate Jurisdiction of the Supreme Court and the Court of Appeals.” Author – Speaker.1984 – The University of Texas at Austin, Seminar – “Appeals and Judgments as Affected by the 1984 Amendments to the Rules of Civil Procedure.” Author – Speaker.1983 – St. Mary’s Law School Seminar – “Problems of Transition and Appeal.” Author – Speaker.1982 – St. Mary’s Fourth Annual Procedural Institute – “Summary Judgment.” Author – Speaker.September 1981 – Alliance of American Insurers – Annual Meeting: “Corporate Free Speech.”September 1980 – Significant Decisions of the Supreme Court of Texas, 1979 – 1980 Term. Annual Meeting, Texas Association of Defense Counsel.1980 – Advanced Civil Trial Course – “The Effective Appellate Brief.” Author – Speaker.1976 – Texas Eastern School of Nursing – “Tort Liability of Professional Nurses.”1976 – Texas Museum Consortium Workshop – “The Public Trust Duties of Museum Directors and Trustees.”1978 – Texas Association of Museums, Annual Convention – “The Museum as a Public Trust.”1976 – Regional bar meetings – Federal Rules of Evidence – “Hearsay.”1975 – Tort & Compensation Section, State Bar of Texas – Liability of Architects and Engineers, Bar Convention.1972 – Railroad Lawyers Convention – “Significant Developments under the FELA.”1966 – Smith County Bar Association – “ The Application for Writ of Error to the Supreme Court of Texas. ARTICLESCo-Author, Mike A. Hatchell & Robert W. Calvert, “Some Problems of Supreme Court Review,” 6 St. Mary’s Law Journal 303 (1974).Author, “The Doctrine of the Law of the Case,” one chapter in the bar publication “Appellate Procedure in Texas” (1978).Author, “Insurance Advertising – Much Ado About Nothing,” 10 St. Mary’s Law Journal 427 (1979).
COMMUNITY LEADERSHIPFirst Presbyterian Church (Diaconate 1968 – 1974, Secretary 1970 – 1972, Session 1974 – 1982, 1988 – 1991; Coordinator, Presbyterian Guidance Program; Youth Fellowship Director; Congressional Committees)Board of Trustees, Carnegie Public Library, 1972 – 1977 (Chairman, 1975 – 1977)

PARTNER
JENNIFER RANGEL
AUSTIN OFFICE100 Congress AvenueSuite 300Austin, TX 78701-4042(512) 305-4745(512) 391-4745 FaxDownload a V-Card
PRACTICESCorporate / SecuritiesHealthcare
EDUCATIONJuris Doctor degree from the University of Houston Law Center in 1995Bachelor of Arts degree, cum laude with honors, from the University of North Texas in 1992
ADMITTED TO PRACTICE
Texas, 1995


JENNIFER RANGELjrangel@lockeliddell.com
AREAS OF PRACTICEPartner practicing in the business and regulatory practice area with particular emphasis on Health Care and Managed Care Organizations, Regulatory, Transactional and Administrative Health Law including Medicare/Medicaid reimbursement issues, fraud and abuse including the Anti-Kickback Act and Stark I/II issues, medical staff credentialing issues and federal and state certification, licensing and enforcement actions before the Centers for Medicare and Medicaid Services and the Texas Department of Health, and mergers and acquisitions of health care entities.

PROFESSIONAL HISTORYPartner in the law firm of Locke Liddell & Sapp LLP Intern, St. Luke’s Episcopal Hospital, Office of the General Counsel, Houston, Texas, July 1993 – August 1993 Intern, Judge Scott A. Brister, 234th Judicial District Court, Houston, Texas, May 1993 – July 1993
PROFESSIONAL AFFILIATIONS AND AWARDSMember, State Bar of Texas, Health Law Section Member, South Texas Society of Healthcare Risk Managers Member, American Health Lawyers Association Member, Austin Health Lawyers Life Member, National Registry of Who’s Who published in the 2000 edition Member, Travis County Bar Association Member, Travis County Young Lawyers Association
PRESENTATIONS AND PUBLICATIONS"HIPAA Update", Texas Association of Community Health Centers, October 2003Chapter 5 - Treatment Decisions. Legal Nurse Consulting: Principles and Practices, Second Edition, (2002) State By State Guide to Managed Care Law; contributor of sections regarding Texas law, 2000, 2001, 2002, and 2003Confidentiality of Quality Assurance and Medical Records in the Age of Computerization: A Litigator's Perspective, Journal of Healthcare Risk Management, summer 1995LLS Healthcare Legal Update and Client Alerts, on topics ranging from recent case law and new regulations or statutes to current issues affecting health care providers such as managed careTexas Medicare and Medicaid: Enforcement, Compliance and the Transition to Managed Care Seminar, Speech regarding Medicaid Managed Care, November 1998Capitalize on Coding presented by the Austin Chapter of the American Association of Professional Coders, Speech regarding Compliance Programs, October 2001“Medicare and Medicaid Compliance Programs,” Lorman Medicare and Medicaid in New Orleans, Louisiana, September 2002“HIPAA Overview,” Lorman Confidentiality of Medical Records in Texas seminar, Austin, Texas, September 2002“Basics of HIPAA,” Texas Assisted Living Association Annual Conference, “It’s a Jungle Out There,” Austin, Texas, September 2002“Confidentiality,” The IPA Association of America, The State of Texas Healthcare and Your Practice Conference, Austin, Texas, October 2002“Ethics in Long Term Care,” Texas Assisted Living Association, October 2002.“The Basics of HIPAA and Texas Privacy Laws,” Silverado Senior Living, December 2002

Headline News"Locke Liddell & Sapp Attorneys Named Texas Rising Stars/Super Lawyers 2004 In Texas Monthly Magazine" — 7/28/2004

Articles"Deciphering the Implications of HIPAA Compliances" — 9/5/2003

ASSOCIATE
DALLAS OFFICE2200 Ross AvenueSuite 2200Dallas, TX 75201-6776(214) 740-8627(214) 756-8627 FaxDownload a V-Card
PRACTICESEmployee Benefits / ERISATax
EDUCATIONJuris Doctor degree, cum laude, from Baylor University School of Law in 1998; Baylor law review; Phi Delta Phi Legal Honors FraternityLL.M.�Taxation from Georgetown University Law Center in 2003Certificate in Employee Benefits Law from Georgetown University Law Center in 2003Masters of Taxation from Baylor University Graduate School in 1998Bachelor of Applied Science degree in Computer Information Systems from Campbell University in 1995U.S. Army Flight School & Warrant Officer Candidate School, 1991


ADMITTED TO PRACTICE
Texas, 1998
District of Columbia, 2002


TODD TREADWAYttreadway@lockeliddell.com
AREAS OF PRACTICEAssociate practicing in the area of employee benefits and other tax law.
REPRESENTATIVE EXPERIENCE
Represented the United States in civil tax cases before Federal District and Bankruptcy courts.

PROFESSIONAL HISTORYAssociate with Locke Liddell & Sapp LLPAssistant Editor, Kiplinger Tax Letter, 1999-2003Adjunct Professor, Northern Virginia Community College, 2000-2003Trial Attorney for U.S. Department of Justice, Tax Division Honors Program, 1998-1999Helicopter Pilot, U.S. Army, 1991-1995
PROFESSIONAL AFFILIATIONS AND AWARDSMember, American Bar Association

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713-226-1140
LOCKE LIDDELL & SAPP NAMED TOP LAW FIRM LOBBY PRACTICE
IN TEXAS BY CAPITOL INSIDE
January 27, 2004 – Locke Liddell & Sapp has the No. 1 Law Firm Lobby Practice in Texas,
according to Capitol Inside’s Second Annual Texas Lobby Power Rankings. This is the first
time Capitol Inside has ranked law firms’ public law practices.
“The firm is widely regarded for the innovative approach it uses to help clients confront complex
public policy challenges at all levels of government,” said Capitol Inside, an online site for
politics and government affairs in Texas which Campaigns & Elections magazine recently said is
"read widely by Texas capital power players."
Locke Liddell & Sapp’s lawyers and non-lawyer professionals form a unique public law team
recognized for its cutting-edge and direct approach, distinctive style, comprehensive tact,
proactive bent, sharp skills and the ability to get things done. Before the 2003 Texas Legislative
Session, one well-known political website referred to Locke Liddell & Sapp as “a very hot
lobbying firm” and as a “well-connected law firm.” In June 2003, immediately following the
conclusion of the regular session, Locke Liddell & Sapp was ranked No. 1 of 12 law firm
lobbying practices in Texas Lawyer’s 2003 Lobbying Scorecard based on lobby billings
reported to the Texas Ethics Commission. In November 2003, the Austin American-Statesman
described Locke Liddell as “one of the state's political lobbying powerhouses.”
In ranking Locke Liddell the Top Law Firm Lobby Practice in Texas, Capitol Inside said,
“Locke Liddell already had the best connections and contacts in the business before winning the
recruiting war for Bill Jones, who was the governor's general counsel before signing on last fall
with the Houston-based firm. Texas Lawyer magazine says the firm billed clients more for
lobbying last year than its top competitors -- and it gives plenty of money to political candidates
as well. The lobbying team is led by Robert Miller, the immediate past chairman of Houston
METRO, along with former Greater Houston Partnership chairman Bruce LaBoon. State Senator
John Whitmire, who holds the prestigious ‘of counsel’ position, lobbies at the local and federal
levels.”
Established in 1891, Locke Liddell & Sapp LLP is recognized as one of the leading law firms in
Texas and throughout the nation. A full service law firm with offices in Austin, Dallas, Houston
and New Orleans, Locke Liddell & Sapp has about 400 lawyers who represent a broad range of
businesses and individual clients having extensive domestic and foreign business interests.
HOUSTON:900000/40000:890929v1
Priscilla R. Owen Support
Tom Phillips, Texas Supreme Court Chief Justice
"She's what Bush said (in nominating her): She tries to follow the legislative will in every case and apply the law, not invent it." Houston Chronicle, May 10, 2001.
Lori R.E. Ploeger, Austin, Texas attorney and former law clerk to Justice Owen
"Justice Owen is a role model for me and for other women attorneys in Texas. She attended law school in the mid-1970s, at a time when the ratio of women-to-men was still one in ten at best. She not only attended law school, she excelled, graduating third in her class and serving on the Baylor Law Review. Shortly thereafter, she again distinguished herself by obtaining the highest score on the Texas Bar Examination.... Now in her second term on the Texas Supreme Court, Justice Owen continues to demonstrate the outstanding qualities that have consistently distinguished her as a leader in the legal profession." Excerpt from Letter to Senator Leahy, June 27, 2001.
Hector De Leon, Partner: De Leon, Boggins & Icenogle and Past President of Legal Aid of Central Texas
"As the immediate past President of Legal Aid of Central Texas, it is of particular significance to me that Justice Owen has served as the liaison from the Texas Supreme Court to statewide committees regarding legal services to the poor and pro bono legal services. Undoubtedly, Justice Own has an understanding of and a committment to the availability of legal services to those who are disadvantaged and unable to pay for such legal services. It is that type of insight and empathy that Justice Owen will bring to the Fifth Circuit." Excerpt from Letter to Senator Leahy, June 26, 2001.
Mike Hatchell, a Tyler-based Texas appellate specialist
"Her positions were quite conservative but very intellectual," said Hatchell, who runs a service summarizing Texas high court cases for other lawyers. "She's been underrated. She doesn't talk that much but when she does, you should pay attention." Houston Chronicle, May 10, 2001.
Doug Alexander, Partner at Scott, Douglass & McConnico in Austin
"She is smart and has a strong work ethic, which is critical because of the heavy caseload at the 5th Circuit. Alexander also said, "Her pedigree in terms of intellectual ability is excellent," noting that Owen graduated No. 1 in her class at Baylor University School of Law in 1977. Legal Times, May 14, 2001.
Don Hunt, appellate specialist with Mulli, Hoard, Brown, Langston, Hunt & Joy in Lubbock
"She's a precise questioner," Hunt says. "She couldn't be that way unless she had done her homework and studied." Texas Lawyer, May 14, 2001.
Editorial, Dallas Morning News
"Priscilla Owen (R), 46, a former Houston lawyer, has brought impressive legal scope to the bench and has provided thoughtful opinions since being elected in 1994." October 26, 2000
For further information please contact Barbara Comstock in the Office of Public Affairs at (202) 514-2007.

Page 10 — The Appellate Advocate
by Roger W. Hughes
ADAMS & GRAHAM, Harlingen, Texas
The 1999 Amendments to the Texas Rules of Civil
Procedure brought ‘pre-suit discovery’ to current
civil practice in the form of Rule 202. The Supreme
Court intended to combine and replace (1) the
equitable bill of discovery under former Rule 737
(repealed), and (2) the deposition to perpetuate
testimony under former Rule 187 (repealed). Under
Rule 202, the trial court may permit petitioner to
obtain depositions upon finding either:
a. The deposition is necessary to prevent the
delay or denial of justice (Rule 202.4(a)(1));
or,
b. The likely benefit to permit the petitioner to
take the deposition to investigate a potential
claim outweighs the burden and expense of the
procedure (Rule 202.4(a)(2)).
Rule 202.4(a)(2) is derived from former Rule 737
(repealed); Rule 202.4(a)(1) is derived from the
former Rule 186 (repealed). The purpose of
consolidating former Rules 187 and 737 was to
"regulate more precisely the circumstances under
which discovery currently available under Rule 737
may be obtained." Hon. Nathan Hecht & Robert
Pemberton, A Guide to the 1999 Texas Discovery
Rules Revisions, p. 12, Applying the New Rules of
Civil Discovery Seminar (Nov. 20, 1998). Rule
202 was intended to end the use of bills of discovery
as "a largely unregulated, potential end-run around
the limitations of other discovery rules." Id.
If anecdotal evidence carries any weight, then Rule
202 has become the end run it was drafted to
prevent. Courts in some parts of the state grant Rule
202 petitions as a matter of course so long as the
evidence sought is not privileged. Unremarkably,
some parties may seek appellate review of adverse
decisions.
The problem is the confusing rule over whether an
order for pre-suit discovery is a ‘final judgment’
which can be appealed, or is an ancillary (akin to
interlocutory) decision which can be reviewed only
by mandamus. Before 1999, there were three
different answers depending on whether Rule 187 or
737 was involved. Until courts decide which
answer to apply to Rule 202.4, parties face a “Catch
22" when challenging an adverse ruling under Rule
202. Mandamus relief may be unavailable because
it is unclear whether an appeal is possible, and the
same uncertainty may result in the dismissal of an
appeal for lack of jurisdiction.
I. Pre-1999 Rule on Appealability of Pre-Suit
Discovery
Before 1999, whether the order was a final judgment
depended on whether the claimant sought relief under
former Rule 737 or 187.
A. Equitable Bills of Discovery Under Former
Rule 737
Orders under former Rule 7371 directing discovery
against persons against whom suits are not
contemplated were ends in themselves and
appealable. Schultz v. Fifth Judicial Dist. Court of
Appeals, 810 S.W.2d 738, 740 (Tex.
1991)(orig.proc). An equitable bill of discovery
brought against a third party to the expected lawsuit
was an independent proceeding which resulted in a
final and appealable judgment. Ross Stores, Inc. v.
Redkin Lab., Inc., 810 S.W.2d 741, 742 (Tex.
1991); Dallas Joint Stock Land Bank v. State, 135
Tex. 25, 137 S.W.2d 993, 995-96 (1940). Such
orders were like a mandatory injunction against the
person required to give the discovery. Schultz, 810
1 Tex. R. Civ. P. 737 (repealed 1999) was derived from Tex.
Rev. Civ. Stat. Ann. art. 2002, Acts 1923, p. 32, repealed Acts
1939, 46th Leg., Sec. 1.
On the Nomination of Priscilla Owen




The Record: Democrats v. Republicans
Senate Democrats have a strong record of confirming judges, including conservative Bush nominees. During Democratic-control, the Senate confirmed 100 judges, and rejected only two.
Under Republican control from January 1995 through July 2001, overall judicial vacancies increased 75 percent, and vacancies on the Courts of Appeals more than doubled.
During Republican control of the Senate, Republicans on average allowed only 38 judges to be confirmed per year, including only seven circuit court nominees per year.
Republicans also refused to confirm a single nominee to the 5th Circuit during President Clinton's second term.
Democrats more than doubled the pace of confirmations - and confirmed 100 judicial nominees during the 107th Congress.
In the 108th Congress, the Senate has already confirmed 18 judges, including two circuit court nominees.
Judicial Activism: Putting Personal Opinions Above the Law
Justice Priscilla Owen's attempts to alter the law to suit her personal opinions have drawn sharp criticism, even from Republican colleagues.
In FM Properties v. City of Austin (a case involving water-quality and environmental ordinances), the majority opinion, written by Bush appointee Baker and joined by then-Texas Supreme Court Justice Alberto Gonzales (now White House counsel) and Bush appointee Hankinson, calls her dissent "nothing more than inflammatory rhetoric."
In In re Jane Doe 1 (a case in which Owen proposed to require a minor to show knowledge of religious arguments against abortion), the majority describes Justice Owen's dissent as going beyond its duty to interpret the law in an attempt to shape policy, and in a separate concurrence, Justice Gonzales said that to the construe law as the dissent did "would be an unconscionable act of judicial activism."
In Collins v. Ison-Newsome (a case involving intentional infliction of emotional distress and defamation), the majority opinion, joined by Bush appointees Baker and Hankinson, criticized a dissent joined by Owen stating that it "defies the Legislature's clear and express limits on our jurisdiction."
In cases involving a variety of legal issues, the judicial record of Justice Owen suggests that she is willing to make law from the bench rather than follow the plain language of the statute and intent of the legislature.
In Weiner v. Wasson (a medical malpractice case in which a 15-year old was forced to undergo three surgeries and eventually require an artificial hip), then-Justice John Cornyn (now Senator Cornyn) unequivocally rejected Justice Owen's argument stating it was an "unworkable standard" contrary to the Texas state constitution.
In Quantum Chemical Corp. v. Toennies (an age discrimination case), Justice Owen supported an argument that ignored the "plain meaning of an unambiguous statute" to reach a conclusion that would limit the rights of the employee.
In Helena Chemical Co. v. Wilkins (a case involving a farmer suing a seed manufacturer for deceptive trade practices and breach of warranty), the majority pointed out that Justice Owen's argument would have rendered meaningless the portion of the Act being decided upon.
Editorial Opinions Against Owen
The nomination of Justice Owen has drawn criticism from newspaper editorial boards across the country - including her home state of Texas.
"President Bush should not have re-nominated two previously rejected judges for federal appellate court vacancies. There are legitimate questions about whether the two have what it takes to be good judges one level below the Supreme Court." "The Wrong Nominees," Kansas City Star, January 11, 2003
"President Bush's decision to re-nominate to the U.S. 5th Circuit Court of Appeals two controversial judges who were rejected by the Senate Judiciary Committee is a major disappointment. With these misguided nominations, Bush is playing hardball at a time when he should be looking for ways to work with Democrats and unify the nation." "Judicial Nominees' Return is Baffling," San Antonio Express-News, January 10, 2003
"Through constant repetition, conservatives have managed to make a code phrase out of `judicial activism'... But conservatives themselves are hardly immune from the problem... Case in point: Texas Supreme Court Justice Priscilla Owen..." "Senators Right to Reject Judge," Atlanta Journal-Constitution, September 9, 2002
Justice Priscilla Owen
Nominated to: U.S. Court of Appeals, 5th Circuit,
Status of nomination: Renominated 1/7/03; Pending Senate Floor Voted out of Committee on 03/27/2003There have been four failed cloture votes: May 1, 2003: May 8, 2003; July 28, 2003; November 14, 2003
Brief Biography.
Born 1954, Palacios Texas
B.A. 1975, Baylor University
J.D. 1977, Baylor University School of Law
Andrews, Kurth, Campbell & Jones (became Andrews & Kurth)
Associate 1978-84
Partner 1985-94
Justice, Texas Supreme Court 1995-present (elected in 1994).
Party Affilliation. Priscilla Owen was appointed and has twice been elected to the Texas Supreme Court as a Republican. She was originally picked for the court by advisor to then-Governor Bush Karl Rove, who worked to make every one of Texas's elected seats Republican.
General Information. Anchoring the far-right end of a very conservative court, Priscilla Owen consistently supports big business and special interests against the claims of ordinary Americans. Before joining the court, Owen was a partner at the Houston firm Andrews & Kurth, where she represented primarily large corporations, including oil and pipeline interests. On the Texas Supreme Court, she has tended to distort or rewrite the law to reach desired results, voting consistently to dismiss the claims of injured workers and consumers and citizens wishing to protect the environment. In addition, prior to her nomination to the Fifth Circuit, she never voted to grant a minor a judicial bypass under Texas' Parental Notification Statute. The Houston Chronicle wrote that her "interpretations [in these cases] were generally stricter and more conservative than the majority of her all-Republican colleagues" on the court. Indeed, White House Counsel Alberto Gonzales, then a fellow Justice, called one of her dissents in a bypass case "an unconscionable act of judicial activism."1
Owen is also notoriously slow at issuing opinions and has reportedly had cases taken away from her because of her backlog. Finally, the decision to renominate Owen, after her rejection by the Senate Judiciary Committee, is indicative of a strategy on the part of Bush and his advisor Karl Rove to pack the federal judiciary with right-wing judges who are prepared to implement the administration's anti-choice, pro-corporate, and anti-environment domestic agenda.2
Decisions Favoring Corporations over Injured Plaintiffs. In several recent cases, Owen has dissented from rulings by the Texas Supreme Court affecting the rights of injured individuals, and in other cases, she has written for or joined the court's right-wing majority to dismiss such claims. In some cases, her opinions had implications beyond leaving the specific plaintiff without a remedy; they were so broad as to threaten to leave entire classes of future plaintiffs with similar claims with no means of obtaining relief.
For example, in Quantum Chemical Corp. v. Toennies, Owen issued a dissenting opinion that distorted a key Texas civil rights law to make it much more difficult for employees to prove a violation of their rights.3 Her position, had it been adopted by a majority of the court, would have required employees to prove that discrimination was the sole reason for a dismissal or other action, even though the statute clearly states that discrimination must simply be "a motivating factor." Although Toennies was an age discrimination case, Owen's view, if adopted, would have weakened protections against several other forms of employment discrimination, including discrimination on the basis of race, sex, and disability.
In Hyundai Motor Co. v. Alvarado, Justice Owen authored a dissent joined by Justices Phillips, Hecht, and Enoch against awarding damages to the family of a teenager who was paralyzed when he was ejected through the car's sun roof in an accident.4 Owen took the position that the federal National Traffic and Motor Vehicle Safety Act of 1966 preempted the Alvarados' common law negligence claim for Hyundai's construction of the Excel's passenger restraint system without lap belts. Owen's argument would turn the federal law, which was designed to minimize injuries and deaths from car accidents,5 into a protective measure for negligent manufacturers and a barrier to stop people from persuading car makers to employ better safety methods.
And in Enron Corp. v. Spring Independent School Dist., Owen authored the opinion for a unanimous court that held constitutional a Texas tax law that allowed companies to choose between two dates to evaluate their inventory for tax purposes.6 Owen's opinion saved Enron $225,000 and resulted in lost revenue for the school district, which had challenged the law that allowed companies to select the date on which their inventory would be valued, which minimized the company's tax burden. As reported in many papers, Owen had received $8,600 in campaign contributions from Enron prior to writing the opinion.7
Reproductive Rights.In every reported case to come before her prior to her nomination to the federal bench, Owen voted against permitting a minor to obtain an abortion without notifying her parents. In many of these cases, she tried to rewrite the Texas Parental Notification Statute to create additional barriers to young women's access to abortion services. For example, in her concurrence inIn re Jane Doe 2, Owen urged the adoption of a new, made-up criterion for granting judicial bypasses: "The Court has omitted any requirement that a trial court find an abortion to be in the best interest of the minor". This is the only reasonable construction of 33.003(i).8 The statute requires only that a court determine whether parental notification is in the minor's best interest, but Owen would rewrite the statute to add a requirement that the court determine whether theabortion itself is in the minor's best interest.
Owen's Disregard For The Rights Of The Public In Environmental Cases. Owen's actions in two cases raise serious concerns about the priority she places on the government's responsibility to protect the environment and the health and safety of its citizens. In FM Properties Operating Co. v. City of Austin, Justice Owen strongly dissented from the court's decision to strike down a state law that had been tailored to allow a particular developer to bypass the city of Austin's municipal water-quality laws.9 The majority pointed out that the law illegally delegated a basic right - the right to pollute - to a private property owner. Owen's dissent was dismissed by the majority as "nothing more than inflammatory rhetoric" thus merit[ing] no response.10 Parties affiliated with the developer contributed more than $47,000 to Owen's campaign.
In her Senate Judiciary Committee Questionnaire, Owen named In re City of Georgetown one of her ten "most significant opinions."11 Here, her decision resulted in the withholding of important information from the public regarding government decisions related to environmental protection. Texas Citizen Action identified this decision on its list of the state's "Terrible Ten," which it stated were cases that "stripped consumers of important protections."
Owen's Ethically Questionable Actions On The Texas Supreme Court. Owen is part of a court notorious for accepting campaign contributions from parties appearing before it-including Enron and Halliburton-with its justices refusing to recuse themselves from those cases. Justice Owen has engaged in this practice, rendering decisions favorable to contributors. In 1994, Judicial Candidate Owen and Justices Hecht and Raul Gonzalez endorsed a pro-business PAC financed by many of the parties that argued before her in court. In addition, when the Travis County Attorney investigated the practice by Texas Supreme Court justices of allowing their law clerks to accept pre-employment bonuses from law firms with cases before them, Owen continued to condone such awards and dismissed the investigation as a "political issue that is being dressed up as a good-government issue."12
In addition, Owen voted in an egregious case to dismiss charges of malpractice against an attorney who, without informing his client, had rejected an offer on her behalf for full immunity, an offer that was later accepted by another of the same attorney's clients.13 The attorney at issue, who was a vocal supporter of Owen's nomination, is a partner at Hughes & Luce, a firm that donated generously to Owen's campaigns.14
Other. Priscilla Owen is a member of both the Austin and Houston chapters of the Federalist Society. Her nomination was rejected by the Senate Judiciary Committee on September 5, 2002, but President Bush announced her renomination, along with that of Charles Pickering and the nominees left pending at the end of the 107th Congress, on January 8, 2003.
1 Flood, Mary, "Judicial Nominee Takes Issue with Conservative Label", Houston Chronicle, May 10, 2001.2 In re Jane Doe 19 S.W.3d at 377. Note that Justice Gonzales was referring to opinions by Justice Hecht and Justice Abbot as well as to Justice Owen's opinion.3It is widely believed that Owen was recruited in 1994 by Karl Rove to the Texas Supreme Court. He served as a consultant to Owen's 1994 judicial campaign and was paid $250,000 in fees and expenses by the campaign.4 47 S.W.3d 473 (Tex. 2001).5 974 S.W.2d 1 (Tex. 1998).6 "It is indisputable that Congress's overriding purpose in passing the Safety Act was to reduce traffic deaths and injuries caused by traffic accidents". In the face of this clear declaration of congressional purpose, we are unwilling to accept an overly broad notion of preemption based on uniformity that could have the effect of undercutting Congress's concern for safety. Id. at 32-5 (majority).7 922 S.W.2d 931 (Tex. 1996). 8 See Mittelstadt, Michelle, "State Justice's Enron Money Draws Criticism," Dallas Morning News, January 23, 2002; Hights, Bruce, "Enron Money to Justices Just Business as Usual; Contributions Highlight Concerns About Texas' Judicial Election System," Austin American Statesman, January 28, 2002; Robison, Clay, "Impartial Politicans? Follow the Money," Houston Chronicle, January 27, 2002; and Duggan, Paul, "Coping with Enron's Largess; Donations a Source of Discomfort for Many Texas Politicians," Washington Post, February 9, 2002.9 In re Jane Doe 2, 19 S.W.3d 278, (2000).10 FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868. (Tex. 2000).11 Id. at 877.12 In re City of Georgetown and George Russell No. 00-0453, 44 Tex. Sup. J. 434 (Tex. 2001).13 "Bribery or Perks for Clerks?" Houston Chronicle, February 11, 2001.14 Peeler v. Hughes & Luce, Darrell Jordan, 909 S.W.2d 494 (Tex. 1995).15 Darrell Jordan authored a letter of support from past presidents of the Texas Bar Association and attended a White House press conference to counter the one held by numerous Texas groups that opposed Owen's nomination.

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Dollar Docket #13: Bush's Judicial Intent: Fake Moderate, Veer RightBush's Judicial Intent: Fake Moderate, Veer Right printer friendly George W. Bush’s four Texas Supreme Court appointees were cited during the presidential race as evidence that his nominees for the federal bench would be pro-business, social moderates.
But the recent nomination of Texas Supreme Court Justice Priscilla Owen to the 5th U.S. Circuit Court of Appeals better echoes Bush’s statement on the campaign-trail that his favorite jurists are right-wing Justices Antonin Scalia and Clarence Thomas.
Bush passed over his own so-called moderate Texas Supreme Court appointees in his first round of nominees to fill 100 federal bench vacancies.
Instead, Bush tapped a Federalist Society activist who—along with Justice Nathan Hecht—occupies the far right wing of a conservative, pro-corporate court. These two justices’ records are those of social conservatives who are hostile to both consumers and juries.
Significantly, Hecht is the only other Texas justice currently rumored to be in the running for a federal bench.
In contrast, the Far Right reportedly nixed the federal judicial ambitions of Bush-appointed Justice Deborah Hankinson because it considers her to be too moderate.
Overseeing this appointment process is Alberto Gonzales, who Bush placed on the Texas Supreme Court before appointing him as White House Counsel. Bush’s interest in appointing Gonzales to the U.S. High Court should alarm consumers and victims of corporate malfeasance. Two opinions by Gonzales confirm this fear, both of which Owen joined.
Gonzales penned Southwestern Refining v. Bernal, eliminating class actions for victims of mass torts. He also authored Fort Worth v. Zimlich, exhibiting great distrust of juries and dislike of whistleblower protections. These decisions reflect the thinking of Gonzales political benefactor Texans for Lawsuit Reform (TLR). Among other things, TLR bequeathed a single check of $20,000 to Gonzales in the middle of the campaign even though Gonzales faced only token opposition.
It is all the more telling that Gonzales and Bush included Justice Owen in their first batch of nominations, since the administration reportedly has held back the names of additional nominees whom they fear will be even more controversial.
Although Bush sometimes presented a moderate judicial face on the campaign trial, his nomination of Justice Owen suggests that his real judicial intent is to veer U.S. courts sharply to the right.•
[download the pdf version for printing]
April Dollar Docket
Cases heard by the Texas Supreme Court in April and corresponding contributions to justices from the parties and/or attorneys.
April 4, 2001
TX Dept. Protective Services. v.
$ 0
Sherry
$ 0


Tyler Reeder v.
$ 9,511
Andrew Daniel
$ 0


Yzaguirre v.
$ 53,400
KCS Resources Inc.
$ 200


April 11, 2001
Kenedy Memorial Foundation v.
$ 73,183
Dewhurst
$ 44,700


Kanz v.
$ 0
Hood
$ 0


In the interest of C.H.
$ 0


April 18, 2001
Furr’s Supermarkets v.
$ 3,350
Bethune
$ 0


TX Home Mgmt. Inc. v.
$ 3,250
Peavy
$ 0


Carrington v.
$ 0
Ameriquest Mortgage Co.
$ 14,000


Total for April:
$ 201,594
Bush's Judicial Intent: Fake Moderate, Veer Right

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Texas Supreme Court Justice Priscilla Owen: A Summary Of Judicial Career & OpinionsContributor Conflicts printer friendly
Texas is the largest of nine states in which voters still select Supreme Court justices through expensive, partisan elections. This controversial practice has undermined public confidence in the court’s rulings. More than half of the money that Texas justices raise comes from lawyers or litigants who have brought legal matters before the court.12 All of the Texas Supreme Court Justices are mired in these donor conflicts.
Justice Owen raised a total of $1,376,000 for her 1994 and 2000 Supreme Court campaigns. With the help of consultant Karl Rove, Owen raised more than $1 million of this money for a competitive 1994 race against a Democratic opponent.13 There is a disturbing correlation between Owen’s donors and the lawyers and litigants who have had legal matters in her court. The 2001 Texans for Public Justice report Pay to Play identified the employer and occupation of donors who gave a total of $926,516 to Owen’s 1994 campaign. Lawyers and litigants who were parties to petitions in Owen’s court between 1994 and 1998 provided 43 percent of this money that she raised.14 Lawyers and litigants who were parties to 60 percent of the 758 opinions that the court issued between January 1995 and October 2000 gave Owen $510,503 (37 percent of all her Texas Supreme Court money).
The table below shows the top Owen donors who appeared before her court as litigants. These donor parties fared extremely well before the court’s majority, winning 77 percent of the 26 cases that they had there. They did even better, however, before Justice Owen, who occasionally broke from the majority to support a party that has supported her campaigns. As a result, these same big donors prevailed with Owen in 85 percent of these cases.15
Owen's Top Litigant Donors (1995-2001)
Owen's Top Litigant Donors
Donations
Sup. Ct. Cases Involving Owen
Win/Loss Ratio With Majority
Win/Loss Ratio With Owen
*Haynes & Boone
$16,510
1
1:0
1:0
*Hughes & Luce
$14,236
1
1:0
1:0
Reliant Energy
$9,500
4
3:1
3:1
Enron Corp.
$8,600
1
1:0
1:0
H.E. Butt Grocery
$7,500
3
2:1
3:0
Valero Energy
$6,000
2
1:1
1:1
Texas Utilities
$5,950
3
3:0
3:0
Farmers Insurance
$5,722
2
2:0
2:0
Union Pacific
$5,278
4
4:0
4:0
Coastal Corp.
$5,000
3
2:1
2:1
Dow Chemical
$5,000
2
0:2
1:1
TOTAL:
$89,296
26
20:6
22:4
*Besides appearing before the court as counsel, these firms were defendants in legal malpractice suits.
Justice Owen cast a deciding 1995 vote that prevented one of her top donors from being sued for legal malpractice (Peeler v. Hughes & Luce). After pleading guilty to federal tax fraud, a securities worker tried to sue Hughes & Luce (which this plaintiff had retained for $250,000) for failing to tell her that a prosecutor had offered her immunity in exchange for her testimony in a wider probe. After taking $14,236 from Hughes & Luce in her 1994 race, Owen joined the court’s plurality opinion that ruled that convicted criminals cannot bring malpractice lawsuits. Three dissenting justices pointed out that the plaintiff arguably never would have been indicted or convicted if her attorney had told her about the immunity offer.16
In another contributor-conflict case, Owen wrote a scathing dissent to a 2000 majority opinion that found a state law unconstitutional because it was written to let a single developer dodge Austin’s water-quality rules (FM Properties Operating Co. v. City of Austin). Owen decried the majority for curtailing the property rights of Freeport McMoRan’s development arm after taking $2,500 from Freeport board members and $45,458 from its lawyers.
With its PAC and executives giving court members $134,558 since 1993, Enron Corp. was the justices’ biggest source of corporate donations. During this same period the justices received six Enron-related petitions for review. In three of them, Enron’s adversaries sought Supreme Court review and the justices denied review every time.17 In contrast, the court granted review in two of the three cases in which Enron sought review (66 percent). This is an extraordinary record in a court that accepts just 11 percent of all petitions received. The court then issued opinions favoring Enron in both cases that it heard. Both opinions overturned lower appeals court rulings against Enron and both occurred in 1996, two years after Owen and consultant Karl Rove raised $8,600 from Enron’s PAC and executives. In the court’s first Enron ruling, Owen wrote a unanimous opinion that prevented Enron from having to pay $224,989 in school taxes (Enron v. Spring Independent School District). Owen did not participate in the second decision, presumably because it involved her old law firm.18
Enron’s success in getting its cases accepted by the court was replicated by numerous big-donor lawyers, law firms, and parties. Owen took $361,602 from these docket sources between 1995-1998. Court records show that law firms that donate heavily to Owen and the other justices are much more likely to have the Supreme Court agree to hear their cases on appeal. The 11 percent overall acceptance rate for petitions to the court jumped to 37 percent for the 149 cases filed by law firms that contributed more than $100,000 to the justices’ campaigns. The justices accepted an astonishing 58 percent of the 43 cases filed by the two law firms that gave them more than $250,000. Yet they agreed to hear just six percent of the appeals by lawyers who made no contributions.19
On the same day as Enron v. Spring Independent School District, the court issued a per curiam tax decision in favor of another big donor to Owen and the other justices.20 HEB Grocery Co. v. Jefferson County allowed a grocery store chain to pay taxes on just one of six stores that it operated in Jefferson County. This decision benefited HEB Chair Charles Butt, who has hosted fundraisers for justices in his home and who was the justices' second-largest individual donor at the time. The Butts family had given the justices $53,098, including $2,000 to Owen.
Owen dissented from a pro-consumer HEB decision delivered in 1998, when the court’s majority was moderating its opinions following national media coverage of its money scandals as well as the influence of then-Governor Bush’s relatively moderate Supreme Court appointments. In HEB Grocery Co. v. Vinnie Bilotto, an appeals court and a Supreme Court majority both affirmed a trial court judgment that granted $91,000 in actual damages to a customer who was injured in a grocery store fall. Owen joined two dissents in the case that argued that damages questions to the jury should not have been predicated on the degree of negligence attributed to the defendant. In his concurring opinion in the case, Justice Raul Gonzalez said that the dissenters must have a low opinion of jurors if they think that juries do not know that negligence findings affect damage awards in personal injury cases. HEB Chairman Charles Butt contributed $5,000 more to Owen shortly after she launched her re-election campaign in 1999.
Many of these conflict concerns also apply to other Texas Supreme Court members. Yet Owen’s record on money-related ethical issues is sometimes even more troubling than that of her colleagues. She is one of two justices with the worst records of taking campaign money from business interests. She also turned a blind eye to the serious ethical lapses of private law firms that paid improper “bonuses” to her court’s law clerks (see page 7).
Owen's Top Business Group Donors
Organization
Contributions
TX Society of Certified Public Accountants
$20,000
TX Medical Association
$13,261
TX Assn of Business & Chambers of Commerce
$9,500
TX Apartment Association
$7,500
TX Civil Justice League
$6,900
TX Association of Insurance Agents
$6,572
TX Association of Defense Counsel
$5,500
TX Bankers Association
$5,362
Texans for Lawsuit Reform PAC
$5,000
TX Association of Realtors
$5,000
TX Dental Association
$5,000
Public records reveal that, among Texas’ Justices, Owen took the second-highest amount and share of campaign money from non-law firm businesses. During her 1994 campaign Owen took $231,379 from non-law firm businesses and trade associations, accounting for 21 percent of her total campaign funds. Only one other justice--current White House Counsel Alberto Gonzales--took a greater share of his campaign money from business interests.21 As discussed on page 2, Owen ruled in favor of her top business donors in 22 of the 26 cases they argued before her.
Owen's Top Law Firm Donors
Law Firm
Donations
Supreme Court Cases (1995-2001)
Vinson & Elkins
$31,550
22
*Andrews & Kurth
$29,374
6
Fulbright & Jaworski
$21,108
33
Baker & Botts
$20,450
35
Haynes & Boone
$16,510
23
Hughes & Luce
$14,236
10
Strasburger & Price
$11,100
21
McDade Fogler Maines
$11,000
3
McGinnis Lochridge & Kilgore
$10,000
6
Susman Godfrey
$10,000
6
TOTAL:
$175,328
165
*Owen did not sit for these cases involving her ex-firm.
During another recent Texas Supreme Court money scandal, moreover, Justice Owen appeared utterly blind to serious concerns about impropriety and unethical behavior at the court. Texas Lawyer reported in 2000 that some of the state’s top law firms were paying pre-employment subsidies of up to $45,000 to Texas Supreme Court law clerks who had been hired to work at the firms after their clerkships ended. These bonuses--paid before or during the clerkships--violated the plain language of the “Bribery and Corrupt Influence” section of the state penal code, which bars judicial employees from accepting “any benefit” from interests with matters before the court. Justice Owen publicly dismissed the scandal as “a political issue that is being dressed up as a good-government issue.”22 Yet the Texas Legislature, the Texas Ethics Commission and the Office of the Travis County Attorney all indicated that the subsidies violate Texas ethics laws, and the Supreme Court recently was forced to eliminate these private subsidies.

<<index>>
12 “Pay to Play: How Big Money Buys Access to the Texas Supreme Court,” Texans for Public Justice, April 2001. 13 During her 2000 race, in which she faced no major-party opposition, Owen returned a third of the $295,000 she raised. 14 This includes donations made by PACs and employees of law firms and litigants that had cases before the court. 15 Owen broke from the majority to join separate opinions in four of these cases. She departed from the majority to rule for a donor in: H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22; Dow Chemical Co. v. Garcia, 909 S.W.2d 503; and Coastal Corp. v. Garza, 979 S.W.2d 318. In the fourth case, Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, she broke from the majority to partially rule against donor Coastal Corp. 16 Because one of the nine justices did not sit for this case, Owen’s vote was a deciding one in this case. 17 The court does not disclose if individual justices voted to accept or deny a petition. 18 Tenneco v. Enterprise Products, 925 S.W.2d 640. 19 “Pay to Play: How Big Money Buys Access to the Texas Supreme Court,” Texans for Public Justice, April 2001. 20 In a per curiam, an anonymous majority backs an opinion, disagreeing justices fail to write dissents and the voting records of individual justices are kept secret. 21 “Checks and Imbalances,” Texans for Public Justice, April 2000. 22 “Bribery or Perks for Clerks?” Houston Chronicle, February 11, 2001.
Introduction Activist and Extremist Jurist Anti-Consumer Opinions Anti-Jury Opinions Contributor Conflicts Career Summary Philosophy: Listing of Selected Cases Philosophy: Case Summaries Appendix: Memorandum to Senate Judiciary Committee: Judicial Criticism of Owen’s “Most Significant Opinions”
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Court Rules Heirs' Evidence Doesn't Prove Extrinsic FraudMary Alice RobbinsTexas Lawyer09-08-2003Allegations that an attorney conspired with Capt. Richard King more than 120 years ago to deprive a widow's heirs of the rightful title to a portion of the famed King Ranch will not be argued to a jury. On Aug. 28, the Texas Supreme Court held in King Ranch, Inc., et al. v. Chapman that Helen Chapman's heirs presented no evidence of King's alleged extrinsic fraud to support their claim for a bill of review to set aside an 1883 judgment that settled a dispute over land located in Nueces County. To avoid the four-year statute of limitations for a bill of review, the heirs had to prove extrinsic fraud by showing that their ancestors were denied a chance to fully litigate all rights asserted before the judgment was rendered in 1883. The Supreme Court also held in the 7-0 decision -- with Justices Craig Enoch and Harriet O'Neill abstaining -- that the King Ranch proved its adverse possession of the approximately 1,550 acres of land known as the Rincon de Santa Gertis as a matter of law, producing evidence that the ranch has used the property in dispute for more than 100 years. "What this opinion says is that you can't get a do-over after 120 years," says John Thomas, a partner in Houston's Hicks, Thomas & Lilienstern and one of the attorneys representing the ranch. "You can't just take isolated tidbits of information 120 years after the fact and turn it into a lawsuit," says Thomas, who represented the ranch along with Mike Hatchell, the principal in Hatchell P.C. in Tyler. According to the Supreme Court's opinion, the case demonstrates the wisdom in protecting the stability of final judgments. "Richard King and William Chapman, along with every witness with personal knowledge of the events at issue, have long since expired. The paper trail of evidence, though surprisingly detailed, cannot turn speculation about King's motives into evidence of his fraud," Justice Wallace Jefferson wrote for the court. William R. Edwards, a partner in the Edwards Law Firm in Corpus Christi and an attorney for the Chapman heirs, says he's disappointed that the Supreme Court did not let the case go to trial. "It's my feeling that if stare decisis and the rules of evidence applied, I should have been in a position to go to a jury," Edwards says. He declines further comment. But Ernest Smith, a University of Texas School of Law professor who teaches in the area of property law, says the Supreme Court believed the plaintiffs' claims are based upon inferences rather than on hard evidence. "It seems to me to send a signal to people who base their claims on incidents that happened a long time ago, that the Texas Supreme Court is not going to look favorably on that," Smith said of the high court's opinion. Tidbits and Folklore According to the opinion, 20 heirs of William and Helen Chapman sued approximately 200 parties alleged to own interests in the Rincon. The heirs alleged a conspiracy between King and attorney Robert Kleberg deprived them of rightful title to part of the Rincon and that they are entitled to receive all bonuses, royalties or other profits derived from oil and gas leases on the land, according to the opinion. The Chapman heirs' claims to the land date back to the mid-1850s. According to the opinion, King and William Chapman each owned a one-half undivided interest in the Rincon in 1853, but Chapman's widow alleged in a suit filed in 1879 that King had ejected her from the land. According to the opinion, Helen Chapman's suit, filed in the 25th District Court in Nueces County and bearing Cause No. 1279, sought an undivided one-half interest in the Rincon, but the widow, who had moved to South Carolina, died before the case was resolved. The case settled in 1883, and the trial court rendered a judgment granting to King all the land but requiring him to pay Helen Chapman's estate $5,811, according to the opinion. According to the opinion, Kleberg and his firm, Lackey & Stayton, participated in the representation of Helen Chapman and also represented King in unrelated matters while Cause 1279 was pending. According to the opinion, after King died in 1885, Kleberg became manager of the King Ranch and also married King's daughter, Alice. The 28th District Court in Corpus Christi granted summary judgment to the King Ranch defendants, both on the Chapman heirs' request for a bill of review to set aside the 1883 judgment and on the trespass to try title suit. In a 2-1 decision, Corpus Christi's 13th Court of Appeals reversed and remanded the case in 2001, holding that the Chapman heirs produced enough evidence to raise a genuine material fact of extrinsic fraud in the 1883 judgment. Justice Federico Hinojosa wrote the opinion in which he was joined by retired 13th Court Justice Melchor Chavez, sitting by assignment. Justice J. Bonner Dorsey said in a dissenting opinion that there is no evidence that King and Kleberg committed extrinsic fraud. According to the Supreme Court's opinion, the Chapman heirs "cobbled together a series of historical tidbits and Texas folklore" in an effort to regain title to the land. According to the opinion, the heirs allege that King paid Kleberg a $5,000 retainer while the land dispute action, Cause No. 1279, was pending but rely solely on Tom Lea's fictional account of an 1881 conversation between the two men in his two-volume work, "The King Ranch," to support their claim. According to the opinion, the Corpus Christi Caller-Times published an Aug. 23, 1992, article in which King Ranch archivist and historian Bruce Cheeseman was quoted as saying: "Clearly, Kleberg was looking after the interest of his in-state client versus the interests of his out-of-state client." Cheeseman claimed he was misquoted, but even if the quote is accurate, it doesn't support an inference that King committed extrinsic fraud, according to the opinion. Another piece of evidence cited in the opinion is Kleberg's statement in an 1881 letter to his parents that King "asked us to attend to his legal business for him." But such dual representation is permissible under today's Texas Disciplinary Rules of Professional Conduct and was not prohibited in the 1880s, Jefferson said in the opinion.
Partner
Dallas,Texas
Phone:
214.754.1984
Fax:
214.754.1933
bcarmody@susmangodfrey.com*

Print this Profile (PDF)Carmody's Competitive EdgeSix Selected Case BriefsRepresentative Plaintiffs' CasesRepresentative Defendants' CasesTrial References
BILL CARMODY is an AV-rated (Martindale Hubbell's highest rating) lawyer who tries cases for plaintiffs and defendants in State and Federal courts throughout America. His clients run the gamut in number and names, from individuals and small companies, to those in Fortune 100. Author, speaker and commentator, Carmody has appeared nationally and internationally, from ABC's Nightline to German TV. His trial victories have been profiled in numerous periodicals, including The National Law Journal, Business Week, The Wall Street Journal, Dallas Business Journal and Texas Lawyer. He enjoys contributing to the Dallas legal community, by sharing his experience and enthusiasm as a trial advocacy instructor at the Southern Methodist University School of Law and by serving on the law school's Executive Board.
Learn more about Carmody's approach to trial lawyering:

Carmody's Competitive Edge TOP
Having run his own business, Carmody understands why litigation that can make or break a company cannot be pursued only during "bankers' hours" -- it's a 24-hours-a-day, 7-days-a-week mission. Before joining Susman Godfrey, Carmody ran his own trial firm in Dallas, Texas. It was there that he found his forté, the so-called "bet your company" case -- the kind that can mean the difference between the life and death of a business.
Everybody hates to lose, but Carmody loves trying lawsuits almost as much as he loves to win. Whether he is representing plaintiffs or defendants, Carmody's work is defined by one credo: Expect the Unexpected. Most lawsuits are tried the same old way. But Carmody's career has been defined by his success in treading a different path. Unlike many lawyers caught in the habit of traditional "lawyer think," Carmody's creativity often provides the margin of victory. This creativity gives Carmody maximum flexibility in analyzing and presenting the case. Consider these case briefs:
Six Selected Case Briefs TOP
David Beats Goliath
By uncovering evidence of commercial fraud, Carmody helped a small contractor conquer a multi-national conglomerate. This "David v. Goliath" scenario pitted Carmody's plaintiff client against one of the world's largest oil companies. The case centered around the defendant's refusal to pay for refinery construction work performed by the plaintiff in El Paso. But Carmody capitalized on favorable venue rules to hold the case more than 800 miles away, in Beaumont -- where the defendant had recently laid off hundreds of workers.
The case was originally viewed only as a million-dollar breach of contract claim; however, Carmody identified a claim that the company's previous lawyers missed. The argument was novel: the defendant's false assurances of safe working conditions constituted fraudulent misrepresentations. After an arduous 2-month trial (featuring a paperless, multi-media presentation, complete with an in-court, full-size model of a quarter section of a crude oil tower), the jury found that the defendant committed fraud -- and awarded Carmody's client over $61 million. See National Law Journal, February 10, 1997, "The Big Numbers of 1996."
To cash in on this big verdict, Carmody quickly negotiated a substantial confidential settlement on behalf of his client. The client's reaction to this happy ending? "Any firm can supply lots of bodies. I'd rather have just one brain like Bill Carmody's." (Jerry Strickland, CEO, AltairStrickland, Inc., Houston, Texas.)
Worth Every Penny
In a huge defense victory, Carmody orchestrated events outside the lawsuit to defeat a local hero in his hometown court. Carmody's client, a Dallas investment brokerage, got sued for over $50 million. A loss was sure to break the company. The plaintiff was a "big fish" businessman who had sued Carmody's client in his "small pond," the little town of Rockport, Texas.
The case stood second on the trial docket. If the first case went as set, Carmody's case would be bumped for months. A postponement could have cost the brokerage an advantage it had gained during discovery: although Carmody had deposed all of the opponent's experts, he had shielded his client's key expert from deposition. So, the opposition was ill prepared for the expert's trial testimony. If the case was reset, the opposition would be able to depose the expert and erase their disadvantage. To prevent this, Carmody took the unprecedented step of brokering a deal in which his client funded a $180,000 settlement of the first case on the docket. This enabled Carmody's case to be tried while the brokerage still had the edge. Carmody and his client did go to trial and won a resounding take-nothing judgment . . . and jury debriefing confirmed the deciding role of the key expert's testimony. The brokerage also won almost $700,000 on a counterclaim. For media coverage of the brokered settlement, see National Law Journal, February 2, 1998, "Two Texas Litigators Leapfrog to Trial Win."
Despite the plaintiff's vigorous attempts to overturn the take-nothing judgment, this remarkable victory has withstood appellate scrutiny -- it has been affirmed by both the Corpus Christi Court of Appeals and the Texas Supreme Court. Wowed with Carmody's results throughout the trial and appellate process, the company's CEO remarked "I've dealt with lots of lawyers and, by far, Bill Carmody is the best I've ever seen." (Bill Woodruff, CEO, Wm. K. Woodruff and Co., Dallas, Texas.)
Fire the First Shot
When a rift between the "money man" and the "idea man" of a North Dallas high-tech company turned ugly, Carmody had to fight an uphill battle to defend his client. Carmody represented the funding partner of a fiber-optics company, fighting against the majority shareholder and inventor of the patented technology that was the basis of the company's business. Anticipating that the opponent was about to sue his client in state court for wrongful termination and misappropriation of the patents, Carmody gained a strategic advantage by firing the first shot: he filed an arbitration claim of fraudulent misrepresentation against the inventor. This effectively turned his "defense" client into the plaintiff and put the opponent on the defensive. Then it was time to go into high gear. Under the arbitration rules, Carmody had only 45 days to get trial-ready. "Getting ready" included:
taking nearly 30 depositions (throughout America);drafting and arguing crucial pre-trial motions;obtaining a stay of the state court case pending the outcome of the arbitration proceeding;locating and retaining top-notch experts (including the Einstein of the fiber-optics field and a venture capital professor from Harvard Business School); anddesigning a high-tech, multi-media trial presentation for optimal effect.
Thriving under this "crunch time" pressure, Carmody pulled out a great result for his client. After a 2-week trial, the arbitrator ordered the opponent to sell his 44% ownership stake in the company to Carmody's client for only $1.1 million. This forced sale gave Carmody's client full ownership of the company and all its technology. Carmody then got the opponent's state court case dismissed on the grounds that all those claims were subject to the arbitrator's ruling. Only eight months later, the company was valued at over $508 million. Not a bad return on investment. See Dallas Business Journal, August 4-10, 2000, "Who Got The Ventures/Angels Money."
The Best Defense
The old adage "the best defense is a good offense" proved true when Carmody defended a computer software firm against a plaintiff claiming that, because of its dependency on computer software, a defect in the software literally ruined its business. In depositions, Carmody first elicited facts to prove that his client's software was not defective. Then, after probing further, Carmody smelled a rat. Well, not really a rat -- more like a violation of federal law. The testimony suggested that the plaintiff had been playing fast and loose with its obligations under the Medicare/Medicaid statutes. Carmody's grilling of the plaintiff's officers soon made clear to everyone that any further prosecution of the suit might not be in the plaintiff's best interest. At that point, things turned around real fast. Although Carmody's client was procedurally defenseless and without standing to sue for the statutory violations, this exposure created powerful leverage for the defendant. Feeling the pressure of this leverage, the plaintiff actually paid Carmody's client to go away. The client later praised Carmody's aggressiveness. "He thought of, and seized upon, every tactical advantage." (Nancy Matz, CEO, Dynamic Energy Systems, Inc., Carrollton, Texas.)
Know Thy Jury
A case in which he sued a large steel company on behalf of one of its former employees thrust Carmody into the national spotlight as a leader in the use of mock trials. The steel company fired Carmody's client, branding him a thief. But Carmody discovered that the defendant had based the firing on the dubious word of an unreliable third party -- without verifying the accusations or giving its 15-year employee any chance to tell his side of the story. Although employee discharges are not uncommon, Carmody honed in on the inherent unfairness of this unceremonious axing. Then, to test the impact of the company's wrongdoings, he tried the case to a mock jury.
At the same time Carmody was preparing this slander case, the nation's eyes were focused on another big case -- the O.J. Simpson murder trial. Recognizing that the jury was the key unpredictable factor in the Simpson case, the media was focusing its attention on juries and what makes them tick. ABC News, having heard of Carmody's extensive use of mock trials, dispatched a film crew to Dallas, to capture Carmody's mock trial of the steel company case. ABC filmed not only Carmody's presentation of the evidence to the mock jurors, but also the mock jury's deliberations.
These deliberations underscored the defendant's significant exposure. The mock jurors not only heavily favored Carmody's client, but also agreed that his damages were enormous. When asked if they had any advice for the steel company, the mock jurors replied in unison: "Settle!" At a court-ordered mediation on the eve of trial, Carmody played the tape of the mock jurors' reactions for the steel company's representatives and attorneys. The mock jurors' message rang loud and clear, and Carmody's client received a handsome settlement. The client recalls how Carmody "took a case that everyone told me was a loser and found a way to win -- and win big." (Harold Franklin, Dallas, Texas.)
Leave No Stone Unturned
Carmody's strategic use of a counterclaim protected his client, the largest minority-owned advertising agency in Dallas, from getting bulldozed into submission by the city's advertising powerhouse. The facts were bad: feeling betrayed by its partner's sudden change of allegiance, Carmody's client had angrily refused to pay commissions under the parties' joint-venture agreement. But, through key deposition testimony, Carmody unearthed facts justifying his client's nonpayment: while still a joint-venture partner with Carmody's client, the plaintiff company had funded the start-up of a rival firm which then lured away one of the client's key accounts. Carmody shaped these facts into not only an effective defense -- but also a breach of fiduciary duty counterclaim. This pro-active move shifted the dynamics of the case such that, despite his client's apparent liability and significant exposure, Carmody was able to negotiate a "walk away" settlement. Carmody's client paid the plaintiff nothing. The client's CEO's advice? "When faced with litigation, hiring Bill Carmody is the best business decision any company can make." (Victor Ornelas, CEO, Ornelas & Associates, Dallas, Texas.)
Representative Plaintiffs’ Cases TOP
Carmody’s record of success has been built on both sides of the bar, with cases covering a wide variety of subject matters. Some of his recent plaintiffs' cases include:
Type of Case
Court
Result
Breach of Contract, Fraud
State CourtBeaumont, Texas
In 2-month trial against large oil company, turned simple breach of contract case into commercial fraud case resulting in $61M jury verdict. See National Law Journal, February 10, 1997, "The Big Numbers of 1996."
Negligence
State CourtDallas, Texas
After client sustained a minor soft tissue injury from an automobile collision, but was later diagnosed with RSD, negotiated $1.75M settlement -- which is believed to be the largest RSD Settlement in Dallas County.
Securities Fraud
State CourtRockwall, Texas
Developed egregious liability facts to settle before trial for confidential amount. See Wall Street Journal, January 3, 2003, "Lucent Clears Legal Decks for 2003."
Slander
State CourtDallas, Texas
After this case was mock tried on ABC's Nightline and portions of jury deliberations shown to Defendants, negotiated significant confidential settlement just before trial.
Negligence
State CourtHouston, Texas
Negotiated $1M policy limit settlement on behalf of family of illegal alien killed in a highway collision.
Subrogation
Federal CourtBirmingham, ALA
Obtained multi-million dollar recovery on behalf of healthcare payors seeking subrogation against manufacturers of silicone breast implants in national class action.
Negligence
State CourtBrownsville, Texas
On the eve of trial, obtained $1.5M settlement on behalf of the Estate of railroad crossing victim with evidence of comparative fault. See Texas Lawyer, Dec. 14, 1992, "Big Deals, Big Suits."
Quantum Meruit
Federal CourtDallas, Texas
Effectively conveyed value of a one-call business referral to a jury who awarded $1.2M "finder's fee," then negotiated $900K settlement after overcoming two Fifth Circuit appeals.
Fraud and Civil Conspiracy mass action
State CourtDallas, Texas
After arduous month-long jury trial, received dubious distinction of being on losing side of National Law Journal's "1999 Defense Win of the Year." See National Law Journal, May 17, 2000, "Fighting Back."
Shareholder derivative suit
State CourtDallas, Texas
While this high-profile lawsuit was dismissed, after exploiting powerful evidence of Defendant's abuse, this closely-held corporation agreed to pay $4.2M to purchase all of client's stock. See Dallas Morning News, December 5, 1997, "Former CEO Sues First Southwest"; Dallas Morning News, April 12, 1998, " First Southwest, Embroiled in Legal Battle -- Co-owners Trade Allegations in Lawsuit Over Firms 1996 Stock-Clearing Losses".
Representative Defendants’ Cases TOP
Although many know Carmody as a successful plaintiffs’ lawyer, much of his work is done on behalf of defendants. Some of his significant defense cases include:
Type of Case
Court
Result
Securities Fraud, Violation of Texas Business Corp. Act
State CourtRockport, Texas
Called in to replace previous counsel after discovery of evidence damaging to Defendant; to limit further discovery, brokered deal to obtain first trial slot and obtained take-nothing judgment and recovery of $696K of attorneys' fees for client. See National Law Journal, February 2, 1998, "Two Texas Litigators Leapfrog to Trial Win."
Breach of Contract
State CourtDallas, Texas
Prevailed on Summary Judgment in difficult liability case in which Plaintiff sought over $20M in damages.
Breach of Contract, Fraud
State CourtFort Worth, Texas
After replacing previous counsel 60 days before trial, deposed key top officers and exposed plaintiff's questionable business tactics, resulting in a "walk-away" settlement.
Breach of Contract, Fraud
Federal CourtChicago, Illinois
Negotiated minimal settlement on the eve of trial, despite egregious liability facts and multi-million dollar exposure.
Breach of Contract
State CourtNew Rhoads, Louisiana
After very damaging evidence presented at trial (precipitating co-Defendant's filing of bankruptcy), negotiated favorable settlement for client.
Breach of Contract, Breach of Fiduciary duty
State CourtDallas, Texas
Despite clear liability, negotiated "walk-away" settlement after developing evidence to support breach of fiduciary duty counter-claim.
Fraud, Violation of Georgia Business Opp'ty Statute
State Superior CourtAtlanta, Georgia
Obtained favorable settlement during trial, despite client's multi-million dollar liability exposure.
Breach of Contract, Breach of Warranty
Common Pleas CourtLima, Ohio
In a case with no counter-claim, forced Plaintiff to pay client's significant attorneys' fees and costs after exposing Plaintiff's potential Medicare fraud.
Theft of Trade Secrets
State CourtDallas, Texas
Negotiated "walk-away" settlement after developing evidence to rebut validity of Plaintiffs' trade secrets.
Corporate "squeeze-out," misappropriation of patents, Fraud
American Arbitration Assoc.Dallas, Texas
Successfully ousted founder/44% shareholder for $1.1M forced stock sale, only 8 months before company's $508M valuation. See Dallas Business Journal, August 4-10, 2000, "Who Got The Ventures/Angels Money."
Trial References TOP
It's one thing to just read about the way Bill Carmody tries a case. But the best proof of his unique approach comes from talking to people who have actually seen Carmody at work. The following people (not aligned according to case) are clients who hired Carmody to represent them, attorneys who tried a case with or against him, and judges who presided over one of Carmody's trials. All are willing to speak with you about Bill Carmody's efficacy in the courtroom.
Clients
Co-counsel
Opposing counsel
Judges
Jerry Strickland, CEOAltairStrickland, Inc.Houston, Texas281/478-6200
Gilbert Adams, Jr.Law Offices of Gilbert AdamsBeaumont, Texas409/835-3000
Barry McNeilHaynes and BooneDallas, Texas214/651-5000
Hon. Jerry BuchmeyerU.S. Dist. CourtDallas, Texas214/753-2295
Bill Woodruff, CEOWm K. Woodruff & Co.Dallas, Texas214/750-4324
Eric MoyéVial, Hamilton, Koch & KnoxDallas, Texas214/712-4304
Bob KrakowGibson, Dunn & CrutcherDallas, Texas214/698-3100
Hon. Edward McManusU.S. Dist. CourtCedar Rapids, Iowa319/286-2350
Victor Ornelas, CEOOrnelas & Assoc, Inc.Dallas, Texas214/922-8803
Mike HatchellRamey & FlockTyler, Texas903/597-3301
Kim AskewHughes & LuceDallas, Texas214/939-5750
Hon. Charles ShawU.S. Dist CourtSt. Louis, Missouri314/244-3480
Jim Walburg, Sr V.P.IMCO Recycling, Inc.Irving, Texas972/401-7351
Rusty McMainsMcMains Law OfficesCorpus Christi, Texas361/887-4455
Jim FolandFoland & WickensKansas City, Missouri816/472-7474
Hon. David GodbeyU.S. District CourtDallas, Texas214/753-2700
John Peloza, MDCenter for Spine CareDallas, Texas214/378-7200
Jim DowdDowd & DowdSt. Louis, Missouri314/421-6500
Carlos BalidoTouchstone, Bernays, Johnson, Beall & SmithDallas, Texas214/741-1166
Hon. Ronald Yeager36th Dist. CourtAransas Co., Texas361/364-6200
Bob Burggraf, CEOR&B Appliances, Inc.Chino, California909/591-9365
Paula RobyElderkin & PirnieCedar Rapids, Iowa319/362-2137
Rick IllmerBrown McCarrollDallas, Texas214/999-6100
Hon. Adolph Canales298th Dist. CourtDallas Co., Texas214/653-6779
Gary Nabhan, CEOOptical Switch Corp.Richardson, Texas972/664-9112
Daryl BargerHartline, Dacus, Barger, Dreyer & KernCorpus Christi, Texas361/866-8009
Steve HoltmanSimmons, Perrine, Albright & EllwoodCedar Rapids, Iowa319/366-7641
Hon. Gary Sanderson60th Dist. CourtJefferson Co., Texas409/835-8472
*Internet mail is not fully secure or private. Therefore, please do not transmit confidential information via Internet mail. Transmission of information is not intended to and does not create an attorney-client relationship. Please do not assume that your communications sent using Internet mail are privileged or confidential. Please do not send Susman Godfrey any confidential information via the Internet without previously consulting one of our attorneys.
**Nothing on this web page is intended to represent that Susman Godfrey currently represents any particular clients mentioned because matters and client relationships naturally terminate from time to time.

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Copyright © 2004 SUSMAN GODFREY L. L. P. Attorneys at Law. All rights reserved.Unless otherwise noted in website - Not certified by Texas Board of Legal Specialization.
Frank T. Apodaca
Barry C. BarnettVineet BhatiaRachel Black Amy T. BrantlyJonathan Bridges
Ophelia F. CamiñaVictoria C. CapitaineBill CarmodyJohnny W. CarterCarolyn P. Courville Ian B. Crosby
Charles R. Eskridge IIIMark A. Evetts
Parker C. Folse IIIMichael P. Fritz
Laurie L. GallunKenneth E. GardnerH. Lee GodfreyJoseph Grinstein
Drew HansenErica W. HarrisGeoffrey L. Harrison
Stuart V. Kusin
Michael A. Lee

Neal S. ManneDavid C. MarcusKenneth S. MarksEric J. MayerKenneth E. McNeilBrian D. MeltonWilliam R. H. MerrillSteven J. Mitby Stephen E. Morrissey
Ryan L. Nelson
David H. OrozcoKaren A. OshmanTerrell W. Oxford
Thomas W. PatersonJ. Hoke “Trey” Peacock III
Shawn L. RaymondRobert Rivera, Jr.Jonathan J. Ross
Mary Kathryn Sammons
Edgar G. Sargent
Jeff R. Seely
Marc M. Seltzer
Jonathan M. Shaw
David S. Siegel
Gabrielle A. Sitomer
James T. Southwick
Harry P. Susman
Stephen D. Susman
Brooke A. M. Taylor
Katherine Ginzburg Treistman
Max L. Tribble, Jr.
John W. Turner
E. Lawrence Vincent, Jr.
Mark L. D. Wawro


Most law firms tell you who some of their major clients are, and Susman Godfrey does too. We have represented ACE Insurance Company, Aetna, American General, Apache Corporation, ARMCO, ASARCO, Belo Corporation, Joe Brand, Caldera Corporation, Cisco Systems, the City of Austin, Texas, State of Texas General Land Office, Conoco-Phillips, Continental Airlines, El Paso Energy, Ericsson, Inc., certain Underwriters at Lloyds, GAF Corporation, Georgia-Pacific, Harman International, Hertz, Intel, Kaiser Aluminum, Lyondell Chemical Company, Little Caesar Enterprises, Methodist Hospital, Montana Resources, New York Life, Northwest Airlines, NYLCare Health Plans, Phillip Morris, Picker International, Seagull Energy, Southern Natural Gas, Teledyne, Tenneco, Texas-New Mexico Power, Texas Instruments, Timex, Trammell Crow, Unocal, Underwriters of Lloyds of London, Universal Studios, and Western Atlas.
But you want to know more than the companies we have represented; you want to know how we did. Did we achieve the client's goal? Was the work cost-effective? Were communications between lawyer and client efficient and prompt? Will the client hire us again? Susman Godfrey helps you answers those questions in two ways. First, we invite you to review the results of our client questionnaire. Because Susman Godfrey genuinely cares about providing excellent service to its client, after a representation is completed, Susman Godfrey asks that its clients complete a Client Questionnaire. The results of the Client Questionnaire have been satisfying. The overwhelming majority of clients completing the questionnaire ranked our overall performance as excellent. We invite our prospective clients to view the Complete Results for all clients. Second, we invite you to talk directly with our former clients.
Below is a list of former clients you can call to find out about Susman Godfrey from their point of view.
Plaintiffs:
Moshe AzoulayPresident American Garment Finishers Corp.(915) 544-6600
We represented AGF as plaintiff in a suit against a major apparel manufacturer on claims of breach of contract and related misrepresentations.
J. David Cabello(832) 446-2410
We represented Mr. Cabello in a dispute over severance compensation with his former employer.
Jonathan CarrollCarroll Enterprises(650) 851-4087
We represented Mr. Carroll in arbitration over breach of an executive compensation agreement. The arbitration ended with an award of $5.9 million to Mr. Carroll.
David ElkinPresidentUS Mobilcom(610) 525-2372
We represented MFX Interactive, Inc. in a suit for tortious interference with contract. The suit settled for a confidential amount.
Walter E. EvansVice President and Deputy General CounselHollywood Casino Corporation(972) 716-3822
We successfully settled claims by our client, Hollywood Casino Corporation involving alleged negligent advice by their accountants which had caused a significant overpayment of taxes by Hollywood.
Heinz GretherGeneral CounselHigh End Systems, Inc.(512) 836-2242
We represented High End in a patent and trade secrets lawsuit involving intelligent lighting systems in Dallas federal court.
H. B. HabibChairmanBreezevale Ltd.011-44-20-7839-8839
We obtained a multimillion dollar verdict for Breezevale in a breach of contract suit against Exxon.
Sam HeymanChairman of the BoardGAF Corporation(973) 628-3003
We represented GAF in a suit against Rhone-Poulenc for breach of contract in state court in Brazoria County. The case was settled for a confidential amount.
Guy KerrGeneral CounselBelo Corporation(214) 977-6692
On the eve of trial, we settled a breach of merger agreement case for Belo Corp.
Chris KirkGeneral CounselTrammell Crow(214) 863-4105
We obtained a permanent injunction for Trammell Crow in a theft of trade secrets case involving hundreds of millions of dollars in real estate transactions.
Roger SahniChairmanEnviro Petroleum(271) 493-4414 andPaul Vickery(713) 668-9196
We represented Messrs. Sahni and Vickery against Central Asian Petroleum and an Indonesian businessman over an interest in a gas field in Kazakhstan. Four months after filing the lawsuit, it settled for $6.25 million.
Bryan Sparksformer PresidentCaldera Inc.(801) 426-5001
We represented Caldera in its federal antitrust suit against Microsoft pending in Salt Lake City.
Robert StearnsGeneral PartnerSternhill Partners(713) 622-2727
We represented Mr. Stearns in a dispute over severance compensation with his former employer.
Theodore TetzlaffFormer General CounselTenneco, Inc.(312) 222-9350
We obtained a $143 million verdict for Tennessee Gas Pipeline in a fraud and breach of contract action against KCS Energy.
We defended Tenneco in a libel action brought by several of its prior counsel. The case settled before trial.
We arbitrated a case for Tenneco when Texas A&M University canceled a multi-million dollar cogeneration project, and obtained a favorable ruling from the arbitrator.
We defended Tennessee Gas Pipeline in a declaratory judgment action brought by Coastal Oil & Gas Corp. and ANR Production Co. over a $730 million claim asserted under a take-or-pay contract. A jury trial ended in a verdict for Tennessee Gas.
Bradley TirpakPresidentAccess Telecom, Inc.(917) 482-8229
We obtained a favorable settlement for our client, a small international long distance company, in a one hundred million dollar antitrust claim. The terms of the settlement are confidential.
David WiggsFormer Chairman and CEOEl Paso Electric Company(949) 673-6394
We successfully tried to judgment a case by EPE against Central & Southwest Power in Waco, Texas. That case was settled for $35 million.
Elizabeth and James W. Williams(281) 375-6018
We represented the Williams in an international dispute over rights to a pipeline in South America. The case settled on the eve of trial for a confidential sum.
Defendants:
David P. CainFormer Senior Vice President, General Counsel & SecretaryInternational Comfort Products Corp.(615) 313-3324
We have successfully defended ICP against charges of fraud and breach of contract.
We represented ICP as plaintiff in a successful patent infringement case.
J. Richard CheneyGeneral CounselThe Methodist Hospital(713) 790-4925
We represent Methodist in an insurance coverage dispute with nine general liability carriers over a group of several thousand personal injury lawsuits asserting claims related to a medical device.
We have represented the hospital in a wide variety of litigation.
David EzarikDeputy General CounselUnocal Corporation(281) 287-5919
We defended Unocal in a tortious interference suit involving a central Asian pipeline; damages were alleged to be $15 billion. All claims against our client were dismissed on summary judgment.
We were one of three national lead counsel defending against Mesa's attempted takeover of Unocal in 1985.
We were lead counsel for Unocal in personal injury defense following the loss of the drill ship Seacrest which capsized in the Gulf of Thailand in 1987 killing 91 men.
We have represented Unocal in a variety of litigation involving ground water contamination; Jones Act cases; and breach of contract cases.
G. Steve FarrisPresident & Chief Operating OfficerApache Corporation(713) 296-6224
We recently obtained a temporary restraining order against three Chinese national oil companies on behalf of Apache China Corp. L.D.C.
Gary P. GraphiaGeneral CounselThe Shaw Group(225) 932-2500
We settled a contract dispute on behalf of The Shaw Group for 60 percent of the amount the contract called for.
Sue R. HalversonVice President and Senior CounselMedtronic(763) 505-2670
We successfully obtained summary judgment for Medtronic against plaintiff's multi-hundred million dollar antitrust claims. We then settled the remaining tort claims for a small but confidential amount.
Russ HowellAssociate General CounselConoco, Inc.(281) 293-1228
We represented Conoco when Exxon sued Conoco for $25 million for breach of a gas contract. A take nothing judgment was rendered in favor of Conoco.
We represented Conoco in a failure to develop case in Goliad County, a case alleging fraud in an oil and gas conveyance in Nueces County, and in a hearing before the Texas Railroad Commission.
Jay JohnsonVice President & Assistant General CounselTexas Instruments, Inc.(972) 917-5640
We successfully defended TI in a fraud case brought against it in Fort Bend County by Samsung regarding a patent licensing agreement. The case ended in a settlement worth over $1 billion to TI just before the jury would have returned a defense verdict.
We represent TI in products liability litigation and employment related litigation pending across the United States.
Peter B. KenneyVice President, LawNorthwest Airlines(612) 726-3663
We currently represent Northwest in antitrust suits in Michigan and Minnesota.
We defended Northwest in an antitrust class action brought by travel agencies. The case settled favorably before trial.
We also defended Northwest in a predation suit brought by a rival airline. The suit was dismissed after completion of discovery.
Peter MearGeneral Counsel and SecretaryACE Limited(441) 299-9203
We have successfully represented ACE in international arbitrations in London and Toronto.
Frank MeredithExecutive Vice President & CFOHarman International, Inc.(818) 895-5719
We defended Harman in a fraud case in state court in El Paso.
Mark MichelsCounselCisco Systems(408) 526-4072
We defended Cisco in cases alleging misappropriation of trade secrets and patent and copyright infringement.
Scott MoserClaims DirectorEquitas Limited011-44-207-342-2081
We continue to represent the London insurance market in a variety of complex insurance coverage matters. We successfully defended the London insurance market in an array of multi-million dollar environmental coverage disputes brought by Eli Lilly and Company, The Boeing Company, and others in venues across the United States. Currently, we represent the London insurance market in the asbestos-related bankruptcy proceedings involving Pittsburgh Corning Corporation and The Babcock & Wilcox Company, pending in Pittsburgh and New Orleans, respectively.
Dean L. SickingPresidentSafety-By-Design1225 L Street, Suite 402Lincoln, Nebraska 68508(402) 472-9332
We currently represent Safety-by-Design's licensee in litigation concerning patented roadside safety devices.
Charles WallGeneral CounselPhilip Morris(917) 663-3302
We are one of six firms serving as national counsel to Philip Morris in tobacco-related litigation. We had been designated as lead counsel to try the first Medicaid reimbursement case filed by the Attorney General of Mississippi against the tobacco industry. That case settled.
We continue to represent Philip Morris in other medical reimbursement suits including litigation brought by foreign nations.
William WebbFormer CEOPicker International(203) 207-4500
In 1992, we successfully defended Picker in an antitrust case in Galveston brought by an independent service organization. The jury trial resulted in a defense verdict.

*Results obtained depend on the facts of each case. Every case is different. Similar results may not be obtained in your case.
Nothing on this web page is intended to represent that Susman Godfrey currently represents any particular clients mentioned because matters and client relationships naturally terminate from time to time.


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document.write(" Copyright © " + Year + " SUSMAN GODFREY L. L. P. Attorneys at Law. All rights reserved. Unless otherwise noted in website - Not certified by Texas Board of Legal Specialization.")
Copyright © 2004 SUSMAN GODFREY L. L. P. Attorneys at Law. All rights reserved.Unless otherwise noted in website - Not certified by Texas Board of Legal Specialization.

Demoted chief's right to their jobs is rejected

Demoted Chief’s right to their jobs is rejected
They had refused deal; 7 others accepted city’s $5.6 million settlement
11/16/2001
By Dave Michaels / The Dallas Morning News
Two veteran Dallas police commanders who sued the city after being stripped of their chief-level ranks did not have a legal right to those positions, a federal judge ruled Thursday.
U.S. District Judge Jorge A. Solis informed attorneys in a pretrial conference of his ruling in the case brought by Robert Jackson Jr. and Willie Taylor. They were among nine officers demoted by Police Chief Terrell Bolton in October 1999.
The other seven, who made the same legal claims, have received $5.6 million in settlements from the city. Mr. Jackson and Mr. Taylor rejected settlement offers.
“I am obviously very pleased,” City Attorney Madeleine Johnson said Thursday. “It looks as though it is going to go in our favor.”
Chief Bolton, speaking through subordinates, declined to comment.
Judge Solis has not ruled on a retaliation claim by Mr. Jackson that argues he was demoted because he testified for another demoted executive who was unpopular with Chief Bolton. But Mr. Jackson’s attorney said she anticipated that Judge Solis would rule against him on that claim as well.
Martha Hardwick said her clients probably would appeal the judge’s ruling. She said they did not regret rejecting settlement offers of more than $1 million.
“Neither one has had any second thoughts about that at all,” she said.
She acknowledged, however, that the ones who appeared to come out best were the seven who settled before Judge Solis’ ruling.
“I am sure everybody who got a settlement with the city is very happy they did so,” said Ms. Hardwick, who also represented two those plaintiffs. “Not only is that money in hand, but it’s not having to wait for a [court] resolution a year or two down the road.”
City officials said they did not regret the decision to settle those cases. At the time, they said, they were weighing a contradictory and confusing series of orders from a different federal judge.
U.S. District Judge a. Joe Fish ruled in August 2000 that commander Will Rollins, who was demoted by the previous police chief, Ben Click, did have a property right to his job. The judge withdrew that ruling seven months later, then reinstated it in July and ordered Mr. Rollins and the city to settle their dispute.
“You have to make the best call you can based on the information you have,” Ms. Johnson said. “There was a lot of uncertainty there, and obviously there was concern we did not know which way another judge would go on this issue.”
The city settled the Rollins suit for $770,000. Mr. Rollins was also allowed to retire with his former rank of executive assistant chief.
Acting Mayor Mary Poss was measured in her response to Judges Solis’ ruling. “All the indications are this is positive for the city, but we don’t have the ruling, so it would be inappropriate to comment on the outcome,” Ms. Poss said.
Once council member, John Loza, said he did not fault Ms. Johnson for advising the city to settle with seven of the commanders demoted by Chief Bolton, plus Mr. Rollins.
“You take account fo what you feel the realities may be in a particular court,” Mr. Loza said. “What a judge or a jury will do in one case may very well differ from what they do in a different court even though it is exactly the same case.”
Mr. Loza, who has supported Chief Bolton throughout the controversy, said Thursday that city officials should move soon to “make an accounting to the public of all these cases.”
“We also need to make sure our policies are made very explicit so people know they do not have property rights when they agree to take these positions,” Mr. Loza said.
Because Judge Solis did not issue a formal ruling Thursday, many officials said they were not sure what legal factors influenced his decision. He is expected to issue a written order early next week.
Ms. Hardwick said that order would determine, in part, the direction her clients would take in their appeal.
Chief Bolton was new to the job two years ago when he removed the nine commanders from their appointed positions. In their places, he promoted lower-ranking officers who he said were more attuned to his ideas about policing and more loyal to him.
He told Ms. Johnson and City manager Ted Benavides that the reorganization was critical if his administration was to succeed.
His decision and the subsequent lawsuits brought a torrent of charges and counter-charges about his young administration. A few council members criticized his leadership and suggested that he had acted impetuously, not heeding cautions from Ms. Johnson.
The chief’s supporters countered that, as the city’s first black police chief, he was being held to a different standard. They charged that some within the Police Department were bent on undermining the chief.
In court, city officials argued that all department heads, including the police chief, are legally entitled to swap out members of their executive staffs, much as a president chooses his Cabinet. They city said that only rank-and-file employees covered by the civil service system have a legal right to their jobs.
But eight of the nine demoted commanders sued, echoing the arguments made in the Rollins case. They argued that various city documents, including a personnel memorandum, outlined employees’ job rights without making any distinction between civil service employees and appointed, executive-level staff.
The cases spawned voluminous depositions and complex legal maneuvering, much of it focused on the question of what legal advice Chief Bolton received from Ms. Johns and lawyer Marcos Ronquillo. Mr. Ronquillo, a private attorney, was hired by the city to advise the chief on the departmental reorganization.
Chief Bolton testified that ms. Johnson gave him a green light for the demotions. She testified that, although she told him he hd the legal authority to make them, it would be wise to wait until the Rollins suit was resolved.
Marcos Ronquillo is the Chairman of our Public Law and Immigration practice areas and can be reached and can be reached at 214.939.8613.
50 years after Brown v. Board

By: VANESSA EVERETT , The Enterprise
05/15/2004




BEAUMONT - The high school principal stood in front of the school board, flanked by a dozen of his top seniors. He bragged to the board about their accomplishments, college plans and scholarship awards.
The group of students had various skin tones, hair types and eye shapes. Their faces were coffee-colored, rich tan, rosy white.
Lawyer Thurgood Marshall must have dreamed of such a scene when he argued the Brown v. Board of Education case before the U.S. Supreme Court more than 50 years ago.

Monday marks the 50th anniversary of the ruling that ended the segregation of black and white students, declaring it unconstitutional and demanding that schools be integrated "with all deliberate speed."
Now, after long years of heated school board debates, protests by activists on both sides and thousands of miles of cross-town bus trips, students of every race learn side by side.
Yet an achievement gap remains between many minority students and their peers.
Some educators lament the gap, while others celebrate its narrowness.
Ten years ago, for example, 42 percent of black third-graders in Beaumont passed the Texas assessment test. Last year, 74 percent passed. In 1994, 75 percent of white third-graders passed the state test, while last year, 90 percent of them passed.
Cathy Chavis, director of Title programs for the Beaumont Independent School District, said she sees an academic performance gap between the races, but a closing one.
"There is a gap, but if you go back, that gap is significantly being closed," Chavis said. "I don't think we are where we should be, but we have made significant progress and we need to continue to make that progress."
Dropout rates for minorities are going down. Test scores are going up. The number of minorities in college is rising.
In Beaumont, dropout rates for blacks and Hispanics went down from 2001 to 2002. Black dropouts went from 11 percent to 9.9 percent; Hispanic dropouts went from 22 percent to 19.3 percent.
According to the U.S. Census Bureau, only 2 percent of blacks 25 year old or older had college degrees. In 2002, the number was up to 17 percent.
Chavis said she sees a group of students not stuck in a gap but overcoming a bevy of obstacles.
For many minority students, low income, little parental involvement and little outside education support hinder their ability excel in school.
Thom Campbell-Amons, principal of Central High School, said that even though education might finally be equal, other factors are not.
"Some of them, education is the last thing on their burner," he said. "They're trying to survive, eat and avoid getting hurt."
Some students in Beaumont have never been outside the city, he said. Others have visited foreign countries.
Some students have parents who talk about current events, Amons added, while others hear profanity, abusive language and talk of drugs.
Socioeconomic factors, like poverty and broken homes, have a lot to do with how well students do, experts say.
In Beaumont, 24 schools are designated as Title 1 schools, which means they have 40 percent or more students on free or reduced lunches.
In Port Arthur Independent School District, 77 percent of students are economically disadvantaged. In Beaumont, the number is 62 percent and in West Orange-Cove school districts, the number is 73 percent.
Douglas Laycock, professor of constitutional law at the University of Texas, said in a phone interview from Austin that the state must invest more in schools like these.
Get the best and most experienced teachers in those districts by giving incentives, he suggested. Pour resources into supporting the neediest of children and get their parents engaged.
"If we don't fix this," Laycock said, "the state is looking at a third-world future."
Marcos Ronquillo, a Dallas lawyer who worked on the recent desegregation case of the Dallas Independent School District, said in a phone interview from Dallas that the challenge for schools is not to overcome racial barriers like it was 50 years ago.
Now the challenge is overcoming economic and cultural barriers to ensure every student gets an equal chance at success.
Cathy Chavis juggles numerous programs in order to do just that.
The district provides tutoring services for struggling students, gives teachers extra training to help the unique learner, provides personnel support for challenging classes and tries to feed every hungry child even over the summer.
Parents can learn how to help their kids with their homework. There's even a program to teach parents "cooking math" so that they can use time in the kitchen to reinforce their children's math skills.
Central Principal Campbell-Amons remembers when those extra efforts weren't being made for everyone - when everybody wasn't getting the same thing.
But after 36 years in the education system, he now sees a system that is determined to have every student succeed.
And racial tensions or barriers shouldn't come into it, he said.
"I don't have time for race," he said. "Life is too short to lend myself to race."
View Southeast Texas statistics in PDF format.
Reach this reporter at:
(409) 833-3311, ext. 427
veverett@beaumontenterprise.com
©The Beaumont Enterprise 2004

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Convicts and the Code Genetics meets criminal law in confounding new DNA statute John Council Texas Lawyer
November 13, 2001
When the Texas Legislature hurriedly passed and enacted S.B. 3 on April 5, the law gave new hope to convicts who insist they can be exonerated through DNA tests -- not a day too soon for the wrongly convicted. But six months later, the justice that S.B. 3 was supposed to mete out in Chapter 64 of the Code of Criminal Procedure has gotten messy. Prosecutors, criminal defense lawyers and convicts alike say they are confounded by different aspects of the statute.
District attorneys' offices in urban counties of Texas have been flooded with hundreds of requests from prisoners for DNA testing of evidence. Many of the requests are frivolous, several prosecutors say. And criminal defense lawyers report running into problems getting testing for clients with actual-innocence claims, even when defendants offer to pay for the laboratory analyses themselves.
Consider the case of James Douglas Waller, a Dallas man who served 10 years in prison for an aggravated rape he says he didn't commit. Released on parole in 1993, he hoped he could use the new law to prove his innocence by testing DNA evidence in his case through procedures not available at his 1983 trial.
"When the law passed, I automatically knew that it would clear my name," Waller says. "I knew if I could get it done, it would clear everything up."
Instead, a DNA test in his case proved useless. The small amount of DNA evidence remaining in Waller's case was "consumed" during a court-ordered test at a Department of Public Safety lab in Garland, Texas, in September. The test was "inconclusive," according to court documents.
The law limits the testing of evidence to labs run by or under a contract with the Texas Department of Public Safety or by a lab agreed to by the defense and the prosecution.
Waller's wife, Doris, and Waller's attorney, Randy Schaffer, pleaded to a Dallas judge to let experienced scientists in California perform the testing on the delicate evidence. They had more confidence in the out-of-state lab, and the Wallers even offered to pay for the test. In the end, there just wasn't enough of a sample to go around.
"It's almost worse than blowing it up, them destroying it when we begged them not to," Doris Waller says. "Why wasn't this worth a second opinion? Why couldn't we have gotten another expert?"
The answer is simple, according to John Creuzot, judge of Dallas County Criminal District Court No. 4, who presides over Waller's DNA testing request.
"They don't have any right to that under the statute," says Creuzot, who rejected the Wallers' request that the test be performed in California but approved the DPS test. "And who's to say the test would be any different?"
In briefs on Waller's case, the Dallas County District Attorney's Office agreed to let a DPS lab test his evidence, or three other non-DPS-contracted labs in North Texas. But prosecutors were opposed to letting the California lab perform the test.
"There is no compelling need to do so," according to the state's brief. "Sending an 18-year-old sample of biological material across the country to an unknown laboratory in California unnecessarily risks damage to or loss of the sample."
Even though the sample could have been tested in California if the district attorney's office had agreed to it, says Schaffer, Chapter 64 gives the district attorney's office a trump card to oppose outside testing.
"The state has the veto power, and all they have to do is keep the evidence at a DPS lab. They can just make it all go away, and it sucks," Schaffer says. "It's not the purpose of the statute. The purpose of the statute was not to allow the law enforcement lab to use up the evidence and destroy it."
BROAD REMEDY
So far, Harris County has nearly 100 DNA requests pending because of Chapter 64, while Dallas County has about 60 requests, and Tarrant County has roughly 40, according to officials at each district attorney's office in each county.
Several prosecutors say legitimate requests are drowning in a sea of frivolous ones. Yet some prosecutors hardly blame prisoners for making the requests.
"I would think, if I was a defendant, I would file it," says Steve Conder, an appellate attorney in the Tarrant County district attorney's office. "It's like a free shot."
The law leaves judges little choice but to appoint criminal defense lawyers to prisoners who claim DNA testing will exonerate them. District attorneys' offices then are required to research, locate and produce records and files that often are more than a decade old.
NONEXISTENT FILES
"Some of them are so old, the files don't exist. And then what evidence still exists?" asks Roe Wilson, chief of the post-conviction writs division for the Harris County district attorney's office.
Under Chapter 64, judges have little discretion over whether to appoint an attorney to a convict who requests a DNA test. To start the process, convicted applicants must provide a sworn affidavit to their convicting court asserting one of two causes: that DNA testing was either not available or technically capable at the time of their conviction; or if evidence was previously subjected to DNA testing, a newer test may provide a more accurate result.
According to Larry Fitzgerald, a Texas Department of Criminal Justice spokesman, fliers advising inmates of the law are posted in all prison law libraries.
Many of the requests come from defendants convicted of murder or sexual assault -- cases that are most likely to be aided by DNA tests. And many of them are pro se requests that give little guidance on what evidence may exonerate the convicts, judges and prosecutors say.
"That's the problem with a lot of these cases. These guys can't point to any evidence. They're just sending letters saying, 'I want all of my evidence tested,' " Wilson says. "It's kind of like the point of the legislation was lost because it was written so broadly."
But Mike Charlton, a Houston criminal defense lawyer who has handled many DNA cases, says the law was intended to be broad.
"You can never show in advance that you're going to be entirely successful," Charlton says. "And even if you prove it, DAs historically have come up with some explanation as to why someone is guilty. The Legislature intended it to be a broad remedy."
Even the legislator who sponsored and passed the bill says the law was intended to be broad to allow prisoners access to the courts.
But some of the DNA test requests are a bit strange. Lana McDaniel, judge of Dallas' 203rd District Court, received a testing request from a prisoner convicted of sexual assault who later discovered he had HIV.
"In his request, it was clear that he wasn't entitled to this. He wasn't even claiming that he wasn't the person that did do the crime," McDaniel says. "He just wanted to find out if the victim had AIDS, and he wanted to find out if he got AIDS from the victim."
McDaniel says she appointed a lawyer to investigate the inmate's claim. And other judges find they are bound to appoint lawyers if convicts claim testing could prove them innocent.
"I expect that a lot of these requests will be coming in because the jailhouse lawyers say you can," says George Godwin, judge of Houston's 174th District Court.
Even indigent convicts whose rape cases involve little or no physical evidence may be eligible for appointed lawyers, Godwin says.
"That's not going to keep the defense from asking for the DNA evidence," he notes. "I just don't see how you can get there without appointing a lawyer who is really an investigator in that sense to see what's really going on."
HEARINGS ON DNA
Although the law's language is broad, it is not necessarily even-handed, one defense lawyer says. Once convicts and their lawyers identify the possible evidence that can be tested, the law makes it difficult for them to prove to the trial judge they have a reason for testing that evidence.
Charlton says district attorneys have the upper hand in contested post-conviction DNA testing hearings.
To get a test approved by a trial court, convicts must prove by a preponderance of the evidence that a reasonable probability exists that they would not have been convicted if exculpatory results had been obtained through DNA testing, and the request for the test does not unreasonably delay the execution of a sentence or the administration of justice.
So far, DPS has only tested about 20 cases since the law was passed, says DPS spokeswoman Lorraine Ronquillo. The reason for this disparity, says Charlton, is simple: Courts are listening to the prosecutors instead of the evidence.
"I've handled a bunch of them. In almost every one of the cases, the court looks to the DA and asks, 'Would it make a difference at trial, and would the state dismiss this case if the DNA came back [exculpatory]?' And they [prosecutors] say, 'Hell no,' " Charlton says. "And the court finds you haven't met your burden."
But "no" may not always mean "no" -- even that's up for interpretation. Take, for example, Jessie Joe Patrick's recent post-conviction DNA test hearing in Dallas. Patrick is on death row after being convicted of murdering an 80-year-old woman during a burglary in 1989. As alleged in prosecution motions, Patrick confessed to the murder, including that he attempted to have sex with the victim.
Karen Greene, judge of Dallas' 282nd District Court, found that Patrick didn't meet the statutory requirements for testing. Specifically, she said Patrick failed to prove that he "would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing."
Yet in an unusual twist to Greene's Sept. 21 ruling, she allowed a request by Patrick's attorney, Keith Hampton, to have the evidence tested at a DPS or DPS-contracted facility if Patrick paid for the test.
The Dallas County district attorney's office filed a mandamus with the Court of Criminal Appeals challenging Greene's order, alleging she violated a ministerial act by entering an order that was not supported by the law. (Patrick's case is one of four death penalty cases pending at the Court of Criminal Appeals involving Chapter 64 testing claims.)
In Greene's response to the mandamus in Bill Hill v. Karen Greene, the judge argues that the law doesn't address whether a prisoner willing to pay for a test can receive one if he or she fails to meet the statutory requirements.
"Its effect on an inmate's ability to receive forensic DNA testing at the inmate's own expense has not yet been determined by the courts," Greene writes.
The Court of Criminal Appeals granted leave to file a petition for a writ for Greene's mandamus on Oct. 31, which allows for briefing on the issue by the state and the defense. The CCA previously had issued a stay in the testing of Patrick's DNA evidence.
Hampton and appellate attorneys with the Dallas district attorney's office decline to comment because the case is pending.
HEARD IT BEFORE
The concerns with the new DNA law come as no surprise to State Sen. Robert Duncan, R-Lubbock; he has already heard most of the complaints about Chapter 64. In fact, many were discussed at committee hearings on the bill.
But the law is working as the Legislature intended it to, he says. The statute was meant to be broad on the front end, allowing DNA test requests to get before a court, but narrow on the back end, allowing testing only for the most deserving convicts.
"It was intended to be broad so everyone would feel like they had access to the courts," Duncan says of the bill, which made Texas the 12th state in the nation to pass a DNA testing law. "But it was intended to be restrictive on those who could get access to the test. Because if everyone could get it ... it would be a waste of resources."
There was no way the Legislature could anticipate all the different scenarios judges now face, Duncan says. Those questions are for the appellate courts to decide. Although he's monitoring the success of the new law, he doesn't see any immediate need to modify it.
Duncan says he's unaware of any prisoner who's been freed by a Chapter 64 appeal, but that may be because the law is still relatively new.
"I think the goal is certainly worth the cost, even for the most conservative staunch criminal justice advocates," Duncan says. "Those [conservatives] certainly can't disagree that our system fails if we are convicting innocent people."
As for James Douglas Waller, he'll pursue the testing of hair evidence that remains in his case -- even though prosecutors conceded at his 1983 trial that the hair evidence probably did not come from Waller and was not key evidence.
Waller, who's spent $15,000 in legal fees on his case so far, says he hasn't given up hope.
"With the hope of God, there's always a chance. But God must have a better plan than the DNA," Waller says. "So there's got to be something else to clear my name."