APPEALS IN A TEXAS ADMINISTRATIVE LAW CASE

As a Texas Administrative Law Lawyer and Texas Appeals Attorney, I frequently handle appeals from Texas Administrative agencies. If you need to appeal a decision from such an agency, you will want to know how your case is different from an “ordinary” appeal.

  •  Most Administrative Appeals Go to the Texas Third Court of Appeals – Most administrative agencies are governed by the Texas Administrative Procedures Act (“APA”). As a result, the appeals from those agencies goes to the Texas Third Court of Appeals, located in Austin, Texas. There are six judges (called Justices) on this court and they spend a lot of time on these kinds of cases and thus make most of the administrative law in Texas. For administrative law lawyers, this is the most important court in Texas. (Only a very few cases are accepted for review by the Texas Supreme Court.) Thus, your administrative law appeal lawyer should be very familiar with the judges and the law made by the Third Court of Appeals.

 

  •  Some Texas Agencies Are Appealed More Than Others – I did a very informal survey of the Third Court of Appeal’s decisions in the last three years dealing with administrative law. There were about 53 cases. Of those, most agencies had only one appeal in that period. However, the Texas Commission on Environmental Quality (“TCEQ”) and the Public Utility Commission of Texas (“PUCT”) had seven each, with six being filed relating to the Comptroller’s office. The TCEQ, PUCT and Comptroller’s cases may involve issues worth many millions of dollars to one or more parties, which would justify the expense of an appeal.

 

  •  It is VERY Difficult To Overturn a Finding of Fact By an Administrative Agency – If you present a dozen winners of the Nobel Prize on your side of the case and the other side presents a junior high school teacher as an expert, the administrative agency can rely on the opinion of the junior high school teacher and be upheld on appeal. The court looks for evidence that supports the decision of the agency and stops. If there is more than a “scintilla” of evidence supporting the agency, the court of appeals is more than likely going to uphold that determination. (A “scintilla” is one of those glowing sparks you see flying away from a fire. It is Lawyer-Talk for something small. Two or more small pieces of evidence are enough to get the agency’s factual determination upheld.)

 

  •  It is Possible to Overturn The Legal Conclusions of the Agency – If the agency’s determination turns on a question of law, you MAY have a chance in overturning it on appeal. The Court looks at the questions relating to law “de novo” which is Lawyer-Talk for “a fresh look.” The stated primary goal is to find the “intent of the authors.” Thus, I recently read a case about whether a company that bought a helicopter was entitled to a sales tax exemption. The Comptroller said “no,” the buyer said “yes.” The District Court agreed with the Comptroller, but the Court of Appeals looked at the law and decided that the better reading of the legislative intent was that the Legislature wanted to exempt the type of sale at issue. Thus, you should expect your lawyer to challenge the legal reasoning of the agency.

 

  • Most Agency Decisions Are Upheld – If you are thinking about fighting an agency decision, you need to know that there is a high likelihood you are not going to win. In all likelihood, your lawyer is going to be going up against an assistant Attorney General who has briefed dozen of these types of cases. They know exactly what arguments to make that will persuade the Justices of the Court of Appeals. Thus, you need an attorney that is equally skilled at researching the law and writing briefs.

If you are thinking about taking an appeal of an administrative decision, I encourage you to contact me. I have over 30 years’ worth of experience in administrative law and appeals. You need to act quickly – if you do not follow the proper procedures, you can lose your appeal even before you get stated! Call me at (512) 689-7815 while you are thinking about your case!

Posted in Appellate Briefing and Argument in Texas, Legal Services in Texas | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

GAY DIVORCE IN TEXAS – PART TWO

In a previous blog (see http://www.popelawtx.com/blog/2012/11/gay-divorce-in-texas) I wrote regarding the options that two gay people who were married in another state might have in Texas. The United States Supreme Court has now issued its opinions regarding the federal “Defense of Marriage” Act and California’s Proposition 8. Here are my take-aways:

  •  If You Live In A State That Recognizes Gay Marriage, You Are “Married” Under Federal Law – That is the basic holding of the DOMA case – that Congress cannot create a law that distinguishes between different types of marriages. The Court’s opinion contains some very strong language – much stronger than I had expected – striking down Section 3 of DOMA on the grounds that it conflicts with the Fifth Amendment to the United States Constitution.

 

  • If You Got Married In A State That Recognizes Gay Marriage, But Moved to Texas, You MIGHT Be “Married” for Federal Law Purposes – The general rule of law is that a marriage that is valid in the state in which it occurs is valid everywhere. Thus, if first cousins are lawfully married in a state that allows such a marriage, they are married even if they move into a state that does not authorize such cousins to marry. I think that the Supreme Court’s language is broad enough to mean that if you got married in Massachusetts but moved to Texas, you are still married for purposes of federal law. Thus, I think that you can file a joint tax return, make claims for benefits, live in federal housing and have the other rights any other married couple would have under federal law. PLEASE NOTE: this question has not been litigated and there may be surprises along the way.

 

  • If You Got Married In A State that Recognizes Gay Marriage, but Moved to Texas, You Are Most Likely NOT “Married” Under Texas Law – As I discussed in my previous blog, Texas has a constitutional provision and a statute that prohibit the recognition of a gay marriage from another state. The Texas Supreme Court is examining the validity of those provisions. I feel reasonably confident in predicting that the Texas Supreme Court will find the Texas provisions to still be valid.   The new United States Supreme Court cases do not say that a state must allow gay marriages.  Thus, I expect the Texas Supreme Court to say that Texas will not grant a “divorce” to couples who were validly married in another state. I do believe that they will hold that it is possible to seek a Texas judicial declaration that your marriage is “void,” which would mean that it is possible to get “un-married” in Texas.

 

  • If You Got Married In A State That Recognizes Gay Marriages and Got Divorced In a State that Allows for Such Divorces, You Are Not “Married” In Texas – While I am not aware of any case on the issue, I think that Texas courts will recognize a divorce decree from another state. I suspect that such a court will not treat it as a “divorce” decree, but will recognize that the marriage was never valid.

 

  •  If You Are A Traveler, Your Marital Status May Change During the Course of Your Trip – What happens if a couple that is married in Massachusetts is on the way to California, but one spouse dies in a lay-over in Dallas? At this moment, Section 2 of the federal Defense of Marriage Act is still on the books. It says that a state does not have to give “full faith and credit” to a same-sex marriage. Thus, if such a death occurred today, I think Texas would say that the dead person was not married, while Massachusetts would say that the person was married. This confusing set of facts is going to keep lawyers busy for a while. I expect that the same reasoning that applied to Section 3 of DOMA should also apply to Section 2 and that ultimately the United States Supreme Court will rule that a marriage that is valid in one state is valid for all states. However, we will have some intense fights before that result is reached. In the meantime, same-sex marriages may flicker into and out of existence as a same-sex couple travels across the country.

 

  • If You And Your Partner Own Property In Other States, See a Lawyer – I’m now working on a case where the partners bought some property together in a couple of states other than Texas. The property questions are vexing. I think that they legally own joint property in one state, but do not in another! Compounding the problem is the fact that different states have different principles for dividing property in a divorce. Texas, for example, is a “community property” state. If a couple is married in Texas, just about everything is owned by both parties. However, other states give more recognition to “separate” property. Some states authorize alimony or other spousal payments in order to equalize the division of property. If you are still amicable with your partner, I urge you to make a written agreement as to who owns what. Otherwise, you might be in a situation that I think one of my clients is in – one partner may own the house, but the other partner is responsible for the mortgage!

 

  • If You and Your Partner Have a Child, See a Lawyer – Under my view of the law, the Texas court that can declare the marriage void can also deal with property divisions. The theory should also mean that the court could deal with child custody matters, but that is unclear. I expect that it may depend on which judge hears the case. There are some comparatively liberal judges who will treat a same-sex custody battle in exactly the same way they would proceed in an opposite-sex battle. There are other judges who will be troubled by the idea of a child living with a gay parent and have significant problems with the idea of a non-biological parent getting custody. We are in an area where I have to confess to my clients “I don’t know how this is going to come out.”

If you are a part of a gay couple that had a marriage ceremony somewhere, but now want to end that relationship – give me a call – (512) 689 -7815 or e-mail me – ed@popelawtx.com I can tell you that I don’t have all of the answers, but I don’t believe anyone does. I can promise to listen to your concerns and to work with you and use my experience and knowledge to try to achieve your goals.

Posted in Legal Help in Texas, Legal Services in Texas | Tagged , , , , , , , , , , , , , , , , , , | Leave a comment

LEGISLATIVE UPDATE 2013 – PHARMACISTS

 

I regularly defend pharmacists who are in trouble with the Texas State Board of Pharmacy, so I know it is important to pharmacists to stay abreast of the changes of law in Texas. Here are some of the changes adopted by the Texas Legislature in the law as it relates to pharmacists:

 

 • Changes in the State Board – Senate Bill No. 500 changed the number of members of the Board from nine to 11. It will now consist of seven pharmacists, one pharmacy technician and three citizen members.

Changes in Disciplinary Procedures – Senate Bill 404 changes how the Board deals with complaints that are made to the Board. The Board will be required to keep records relating to the identity of the complainant. The Board is authorized to use informal meeting to resolve complaints. The Board cannot impose sanctions for violations that are more than seven years old. The Board may also offer pharmacists a “remedial plan” that allows them to have all records of the discipline removed on the fifth anniversary of the order imposing the discipline. Senate Bill 869 authorizes the Board to discipline a pharmacist for an incapacity that “could prevent” the pharmacist from practicing proper pharmacy.

Clarification of Doctor/Pharmacist Relationship – Senate Bill 869 also places responsibility on the person writing the prescription to make sure that prescriptions for controlled substances are “legitimate,” but also places “corresponding responsibility” on the pharmacist who fills the prescription. Pharmacists are given the ability to change dosages to an equivalent form (e.g.¸ from capsules to liquid) without notifying the person writing the prescription.

Changes in Some Pharmacy Tasks – Senate Bill 869 also authorizes “Pharmacy Technician Trainees” and sets the parameters for getting a license to become such a Trainee. Senate Bill 227 allows Doctors and therapeutic optometrists to sell “aesthetic pharmaceuticals” from their offices. The bill specifically authorizes the sale of medicines that have the side effect of thickening eyelashes (bimataprost), whitening skin (hydroquione) and improving acne (tretnoin). The doctors and optometrists must inform their patients that the drugs are available at pharmacies.

Other Laws – Senate Bill 1109 authorizes the Board to license and inspect out-of-state pharmacies. House Bill 1358 provides detailed restrictions on audits of pharmacies by health benefit plans.

As noted above, these are just some of the major changes to the law passed during the last regular legislative session. If you need more information about these laws (or any other laws that might affect your practice) please contact me. If the Board has informed you that you are under investigation, call me immediately!

Posted in Legal Services in Texas, Legislation in Texas, Occupational License Suspension and Revocation in Texas | Tagged , , , , , , , , , , , , , , | Leave a comment

LEGISLATIVE UPDATE 2013 – LAWS AFFECTING TEXAS NURSES

The Texas Legislature meets every two years. During that time, it has to pass a budget for all state agencies and write laws that the legislators believe are in the public interest. This last session, the Legislature adopted several bills of interest to nurses. Some of the most important are listed below:

  •  Some Nurses Will Be Able to Write Prescriptions – Senate Bill No. 406 expands the ability of “Advanced Practice Registered Nurses” (“APRNs”) to write prescriptions with minimal oversight by a doctor. “Advanced Practice Registered Nurses” are defined in the law as including Advanced Nurse Practitioners, Advanced Practice Nurses and Physician Assistants. In order for the nurse to begin such prescription writing, he or she must enter into an agreement with a doctor. The law spells out many of the details of such an agreement and leaves it to the Board of Nursing and the Physician Assistant Board to work out additional details. A doctor can have an agreement with up to seven APRNs. The doctor does not have to be on-site with the nurses, but does have to have periodic meetings and consultations with the nurses. The Board of Nursing will have an on-line list of all of the nurses that have this capability.

 

  •  Some Changes and Clarifications to BON Disciplinary Procedures – Senate Bill 1058 made some changes to nurse licensing.
    • Background Checks for Nursing Students – The Board of Nursing (“BON”) will have the ability to require nursing students to undergo background checks before they start nursing school. If they find a nursing student who has a criminal background, they will be able to seek a declaratory order to determine whether he person would not be allowed to be a nurse if they finished school
    • Mandatory Continuing Education – All nurses will have to take two hours’ worth of education in nursing jurisprudence and nursing ethics before their third renewal of their license. In other words, they will have to take the class somewhere within a six year period. If a nurse works with older patients, that nurse will have to take two hours of education in practice regarding older adults or geriatric population.
    •  Confidential Referrals to Volunteer Organizations – The BON works very closely with the Texas Peer Assistance Program for Nurses (“TPAPN”). In my experience, if a nurse has any allegation of drug or alcohol abuse or a psychiatric need, the BON investigative staff will recommend that the nurse participate in the TPAPN program. The new law makes it clear that participation in such a program is confidential.
    • Clarified Law With Regard to “Deferred” Orders – The 2011 Legislature authorized the BON to enter some deferred orders. If a nurse completed such an order, they were no longer shown to have a disciplinary order on their record. However, the BON read the statute as requiring that the deferred order still be listed on the BON’s website for five years. Some of us thought that was inconsistent with the concept of a “deferred” order. However, the Legislature has now made it clear – a deferred order is not confidential until after the nurse completes the conditions of the order. Furthermore, even if a nurse completes the conditions of a deferred order, it still “counts” as a prior disciplinary action if the nurse ever gets into trouble again. At this point, the only difference I see between a “deferred” order and a regular order is that it might be possible for a nurse to eventually complete the terms of a deferred order and then ultimately have the fact that the nurse had such an order be removed from the BON website.

 

  • New Protections For Nurse Whistleblowers Working In Publicly-Owned Hospitals –House Bill No. 581 allows nurses who suffer retaliation because a nurse engaged in patient advocacy activities to sue the public hospital that engaged in the retaliation. The law clearly waives “sovereign immunity” – the concept that the state cannot be sued without the state’s consent.

 

  •  New Perks for Nurse Educators – Nursing educators caught the attention of legislators this year. One new law – House Bill 2099 – creates a loan repayment program for faculty members that teach in nursing degree programs. Another new law – Senate Bill 1553 includes such educators in the Texas Home Loan Program. The same inclusion in the Home Loan Program was also adopted through Senate Bill 286.

This is only a brief summary of some of the legislation that affected Texas nurses this year. If you are a nurse and have questions about these laws or any other law, please give me a call at (512) 689-7815 or write me at ed@popelawtx.com

Posted in Investigated In Texas, Legal Services in Texas, Occupational License Suspension and Revocation in Texas | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

LEGISLATIVE UPDATE 2013 – UTILITY LAW

The Texas Legislature has adjourned its regular session (although it went right back into special session). Thus, it is an appropriate time to look at what the legislature did this last 5 months to change the law in Texas.

 
One of my primary areas of practice is public utility law before the Public Utility Commission of Texas and the Railroad Commission of Texas. This was a comparatively quiet session for utility matters, but some significant bills did make it through the process. Here are some of the key changes:

  •  Qualifications Changed for PUC Commissioners – When Mark White was running for Governor of Texas during a time of rapidly rising utility rates, he promised to “appoint a housewife the Public Utility Commission.” The idea was that a housewife – someone used to setting household budgets and making distinctions between necessary and frivolous purchases – would be able to regulate utilities with a greater deal of sympathy to ordinary consumers than would persons in other occupations. After he was elected, he appointed Peggy Rosson to the Commission and she was more consumer-oriented than many previous commissioners. I bring up this bit of history to explain why it is significant that the Legislature has now changed the law so that someone who was “only” a housewife might not be qualified to be a Commissioner. Under House Bill 1600, in addition to being a qualified voter and US citizen, future Commissioners will have to be “competent and experienced administrators,” “well-informed and qualified in the field of public utilities and utility regulation,” and have “at least 5 years’ experience in administration of business or government or as a practicing attorney or certified public accountant.” I doubt that the new law will greatly affect who the Governor appoints to the Commission. All of the Commissioners that have been appointed since 2000 were lawyers, CPAs or had a background in utility regulation. Some of the Commissioners had less knowledge about public utility regulation than others when they got appointed, but all of those Commissioners in my memory were quick learners. HB 16000 also allows Commissioners to own stock in public utilities and prevents them from going to work for independent system organizations (such as the ERCOT board) for two years after being Commissioner.

 

  • PUC Given More Control over the ERCOT Budget – HB 1600 also expanded the PUC’s ability to amend and revise the ERCOT budget. ERCOT is the Electricity Reliability Council of Texas and it is an independent body that performs many functions in the Texas electric marketplace. ERCOT currently has a budget of about $161 million. The Commission has long felt as though it had an oversight role in ERCOT’s budget. This new statute makes the role more explicit.

 

  • PUC Regulation of Water and Sewer Rates – When I started working at the PUC in 1984, it had jurisdiction over water utilities. I can still recall water rate hearings, as consumers would frequently show up to the hearing with jars of brown and smelly water that their utility was providing. It was a difficult area to regulate, as many small companies could not charge enough in rates to maintain quality operations without imposing significant hardships on their users. I was not sad to see the rate oversight go to the Water Commission. Prior to this legislative session, water rate regulation was in the hands of the Texas Commission on Environmental Quality (“TCEQ”). In HB 1600 and SB 567, the Legislature has moved water and sewer ratemaking back to the PUC. The TCEQ will continue to regulate water quality and the other clean water requirements. The transfer of jurisdiction will not occur until September 1, 2014. In the meantime, the two agencies are instructed to work with each other and create a plan to transition all of the water rate cases and employees from the TCEQ to the PUC. The Office of Public Counsel (“OPC”) will now represent residential and small commercial customers in water rate cases before the PUC.

 

  • The End of the “Phantom Tax” Debate – For as long as I have been involved in Texas utility regulation, consumers and utilities have fought over the proper calculation of federal income tax expenses to be included in rates. Utilities sought to have enough recognized in their rates to pay for the income the Commission was establishing through the rate case. However, due to the structures of most utilities, it was possible for them to pay little to no “real” federal income tax. Consumer groups thought it was unfair for utilities to collect taxes that they did not have to then truly pay to the government. These taxes were called “phantom taxes” by consumer groups and were the subject of multiple court cases. The amount at issue could be huge – several million dollars in adjustments was proposed in the last Oncor rate case. All of that debate may be at an end, at least until the next session. The legislature passed SB 1364 with the intent of ending the “consolidated tax adjustment.” As controversial as this issue has been in the past, I would anticipate that there will be fights about it in the future.

 

  • Extension of “Sunset” Review – Back in the 1990’s, the Legislature came up with the idea of placing all boards and agencies under “sunset” review.  The thought was that such a review would allow for a top-to-bottom evaluation of whether the agency was still needed and whether parts of its enabling statute needed to be changed.  I don’t think it is really true, but it feels as though the PUC has been under sunset review for the last 20 years.  Each session, the agency got reviewed and some part of its statute got rewritten.  This year, HB 1600 removes that worry from the Commissioners and Staff – at least until 2023.

If you are involved in a fight with your local utility – be it electric, gas or water – you should give me a call. I may be able to help you. If your local utility has filed for a rate increase, you and your neighbors should join together to make sure your voice is heard and YOUR issues are addressed. Rate cases can be long, costly and complicated – but the impact of such cases may last for generations. If you need help with a question regarding utilities, please call me at (512) 689-7815 or send me an e-mail at ed@popelawtx.com.

Posted in Legal Help for Electric, Telephone or Gas, Legal Services in Texas, Legislation in Texas | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

APPEALING AN ADVERSE DISCHARGE – PEACE OFFICERS CAN FIGHT

If you are a peace officer in Texas, you know what an “F5” is. For everyone else – an “F5” is the document peace officers get when they cease being an officer for a particular employer. Officers get an F5 when they resign, retire or get fired. Their next employer is required by Texas law to look at their F5 before hiring them. Thus, a bad F5 can harm an officer for years – even the rest of their professional life.

The important part of the F5 consists of three boxes – “honorably discharged” “general discharge” and “dishonorably discharged.” Of course, there is no impact on an officer if the form is marked “honorably discharged.” However, if an officer gets a lesser level of discharge, future employers will look with caution at the applicant. Because the F5 is so important to an officer, the Texas Legislature has provided a system by which officers can appeal an adverse F5 and get it corrected. These appeals involve two state agencies – the Texas Commission on Law Enforcement Standards and Education (“TCLEOSE”) and the State Office of Administrative Hearings (“SOAH”). This blog explains the steps for an officer wanting to appeal an adverse F5.

Decide If You Want to Appeal – If you actually did the things your former agency accused you of doing and the F5 is an accurate statement of the reasons for the termination, you do not want to file a petition. If, however, you think that the decision to terminate you was based on incorrect or inaccurate information, you should appeal. You should note – filing the appeal will NOT get your job back and it will NOT mean that you get any back wages or any other remedy. All that might come out of the F5 hearing is a determination that you were honorably discharged as an “at will” employee.

File A “Petition to Correct Separation of Licensee Report” – If you get an adverse F5, you have 30 days in which to start the appeal process. The necessary form is available on the TCLEOSE site
http://www.tcleose.state.tx.us/forms/petition_to_correct_report_of_sep.pdf

Filing the Petition starts a process by which your former agency is notified and a docket is established at SOAH.

File a Texas Public Information Act Request – In all likelihood, your agency conducted an investigation that led to your adverse F5. You will need all of the documents relating to your employment and the decision to terminate you. You are going to go to a hearing in front of an Administrative Law Judge and your former agency is likely going to be represented by a lawyer. You need to know what kind of case they are going to present against you. Look at your former agency’s website for any guidelines that they may have for public information act requests. Generally, there is no particular form you need to use or any particular magic words that must be included. Your agency does have the right to charge you for the file if it is particularly large, and some documents may be kept confidential under law.

Hire a Lawyer – I just participated in my first F5 appeal and I shudder to think what would have happened to my client without my being there. My client’s former agency was represented by an attorney who sought to introduce the results of several prior investigations into my client. I objected on the grounds that those reports were “hearsay” and thus not evidence. If I had not been there, the agency could have gotten all of those documents into the record without objection. While I suspect most police officers have some idea of the rules of evidence, they are unlikely to know all of the ins and outs of complex concepts like the exceptions to the hearsay rules. I think you are far better off having a lawyer at your side in the hearing.

Schedule the Hearing – Once a SOAH judge is assigned to the case, the judge’s first task is going to be to set a hearing date. If you have a lawyer, your lawyer will work with the other side to find a mutually agreeable date. If you do not have a lawyer, the lawyer for your former agency will deal with you directly.

Prepare for the Hearing – At the hearing, your former agency has the “burden of proof” to show that their reasons for discharging you were accurate. They are likely to put on one or more witnesses who will explain why they think you did what they discharged you for. As mentioned, they will try to introduce a lot of documents from their investigation. Your lawyer needs to know everything that might be brought up against you and know your side of every issue.

Subpoena Necessary Witnesses – TCLEOSE can issue subpoenas to anyone who still works at your former agency. You have to let TCLEOSE know in advance who it is that you want to come testify. Of course, you only want to subpoena people who are likely to support your version of the events.

Participate in the Hearing – The hearing is most likely going to be at SOAH headquarters in Austin. It will be presided over by an administrative law judge who has experience in these types of cases. Even though you filed your case with TCLEOSE, no one from TCLEOSE will be there. Because your former agency has the burden of proof, they will go first. They will present witnesses and your lawyer will have the ability to cross-examine those witnesses. After they finish, you will present your case. If you take the stand, the lawyer for the agency will have the ability to cross-examine you. After you finish, the agency has the ability to present rebuttal evidence. After all of the evidence is in the record, the judge will close the hearing.

Wait for the Decision – In most administrative law cases, the SOAH judge makes a “proposal” for decision by the administrative agency that sent the case to SOAH. This is not the case in the F5 hearing. For F5 cases, the SOAH judge makes the final decision. In these decisions, the judge explains the law relating to an F5 case, summarizes the evidence both for and against the peace officer and then makes a decision as to whether or not the peace officer was properly discharged. If the judge determines that the F5 is accurate, it rules in favor of the agency. If the judge determines the F5 is inaccurate, the judge can order the F5 corrected. In the cases I have reviewed where the judge rules for the peace officer, the judge has determined that the F5 should be corrected to say that the officer got an “honorable” discharge and that the reason for the discharge is “At will employee.” What this means is that your agency could fire you whenever they wanted to, for just about any reason. The judge will supply a reason for the discharge. The cases I have reviewed include reasons such as “concerns about officer’s ability to make appropriate decisions in non-routine situations;” “disagreement over military leave;” “dispute over job responsibilities;” “unsubstantiated allegations regarding violations of office policies and insubordination;” and “dispute over investigative techniques.”

An amendment to the law in 2011 made all F5 proceedings confidential, so it is difficult to get a good handle on how many rulings are made in favor of the appealing officer. Cases before 2011 are available for research through legal research tools, and those cases appear to mostly be resolved in favor of the appealing officer.

If you are a peace officer and if you have been recently terminated for reasons that you do not believe are valid, I urge you to contact me as soon as you can. I will look at your case and give you an evaluation as to your likelihood of success on appeal. Your reputation is on the line – act quickly. Call me at (512) 689-7815 or email me at ed@popelawtx.com

 

Posted in Legal Help in Texas, Legal Services in Texas | Tagged , , , , , , , , , , , , , , , , | 1 Comment

CRIMINAL APPEALS IN TEXAS – SOME HARD FACTS

You or a loved one may have just been found guilty by a judge or jury in Texas. You are looking for someone to handle an appeal.

I seek to have my clients understand their chances of success before retaining me. Some potential clients would like to believe that their loved ones were unjustly convicted and that an appeal lawyer can get a court of appeals to quickly overturn the conviction and get the loved one set free. I think the better clients come from those folks who have a realistic understanding of their case. NO lawyer can guarantee success in one of these cases. What I can guarantee is to devote my skill and experience to present the best case possible on behalf of the convicted person.

  • Criminal Appeals Have a Low Probability of Success – The first stop for most appeals is the regional Court of Appeals. Texas courts publish their statistics, available at http://www.txcourts.gov/pubs/AR2012/toc.htm  The report for 2012 says that all of the Courts of Appeal disposed of 6,222 criminal cases. Of those, about half affirmed the conviction. Only four percent resulted in the conviction being reversed and the conviction set aside. Only about seven percent ended in a ruling that sent the case back to the district court. The statistics do not show how many of the Court of Appeals cases where the defendant won were then appealed to the Texas Court of Criminal appeals. We do know that the Court of Criminal Appeals reversed the Courts of Appeal 27 times and remanded the case to the Court of Appeals. Based on my experience, I suspect that most of those reversals were for decisions that were partially in favor of the defendant. Thus, a defendant only has a roughly one in ten chance of prevailing at the Court of Appeals and that chance is diminished if the rulings of the Court of Criminal Appeals are taken into account.
  • Claims of Insufficient Evidence Seldom Succeed – Courts of Appeal only review the record made before the district court. If a jury made the decision, the Courts grant great deference to the jury. (The same deference is given to judges if the judges made the decision) If the record shows “more than a scintilla” of evidence supporting the conviction, the Courts of Appeal will uphold the jury’s decision. A “scintilla” is one of those sparks you see flying away from a fire. Thus, if there are two or more such “sparks” supporting the decision, the Court of Appeals is likely to uphold the conviction.
  • Juries Are the Sole Judge of Witness Credibility – Families often tell me that the prosecution witness lied on the witness stand. Sometimes, they even say that the defense attorney got the witness to admit to inconsistent statements. Thus, they are shocked that the jury believed those liars and expect a quick reversal on appeal. Unfortunately, courts are unlikely to overturn a conviction based on the credibility of a witness. Court of Appeals judges know that the jury got to see the witness on the stand and could evaluate how believable they were in person. There is no way for the appellate judge to have that kind of first-hand knowledge. Thus, the jury can believe anyone and the courts are unlikely to overturn that belief.
  • It is Hard To Win an “Ineffective Assistance of Counsel” Case on Appeal – Families come to me with claims that the trial lawyer did not put on evidence, ignored the work that the families had done, or otherwise failed to present what they saw was an adequate defense. Courts of Appeal get these kinds of allegations all of the time and they are very skeptical of this type of claim. The standard for “competent” counsel is very low. For example, one case upheld a conviction even though the defense counsel was asleep during parts of the trial! The legal standard that has to be met is that the lawyer’s actions were “so outrageous that no competent attorney would have engaged in it.” That is a very hard standard to meet. The reasons for the lawyer’s actions (or inactions) also have to be on the record. In other words, the lawyer who is snoozing has to explain why he was snoozing – to the court hearing the original trial! If there is not such a record, the courts will assume that he was engaged in some kind of strategy. I have not seen a record on appeal that contains such admissions by the trial attorney.
  • Very Few Sentences are Found to be “Excessive” – Some juries give long sentences for crimes that other juries treat comparatively leniently. The general rule is that if the sentence is within the “statutory range,” Courts do not consider it to be excessive. Thus, if the statute allows someone to be sentenced to anything from five years to life, a sentence of 20 years is not likely to be found to be excessive. It is possible to convince a court if the sentence is grossly excessive. The courts consider (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the commission of the same offense in other jurisdictions. Thus, if a person were convicted of littering and got a life sentence, it would be possible to get a court to reverse that sentence.
  •  Don’t Claim “The Trial Was Rigged” Without Exceptional Proof – Every once in a while, families will claim that the judge in their case had to have been “on the take” to have ruled the way he did. I advise those clients to drop that claim unless they have videotape evidence that shows the judge taking the bribe. While there are some scoundrels out there, most judges are above being bribed. Claiming that a judge has been bribed is offensive to the judges on the Court of Appeals. Attacks on the integrity of one judge is seen as an attack on the integrity of all judges.
  • Don’t Expect a Quick Result – Going through the appeals process takes time. The average time for the Courts of Appeal to deal with a criminal case is 8.6 months. However, that statistic includes cases that are dismissed because the defendant didn’t file the proper paperwork. You should expect an appeal to take up to two years.

So if all of these claims are generally unsuccessful, what kinds of arguments are successful? I look for legal errors that the judge might have made during a trial. Judges on the Courts of Appeal think that they know the law better than district court judges, so they are more likely to overturn such a judge if they think he or she has made a legal error. Thus, I look for legal errors in jury formation, opening and closing statements, the admission and exclusion of evidence and the instructions to the jury. I have to read the transcript and look at the evidence – just the way that a Court of Appeals judge would.

Thus, as you consider an appeal in your case, I would tell you the odds are long, but not impossible. I can also say that even if the odds of success on appeal are small, they are much better than if you take no appeal. It’s somewhat like playing the lottery – you can’t win if you don’t buy a ticket.

If you are considering an appeal of a criminal conviction on behalf of yourself or a loved one, I urge you to act quickly! You have a very short period of time after the conviction in which to file a notice of appeal. Contact me right now – while you’re thinking about it – and tell me about your case.  Call 512-689-7815.

Posted in Appellate Briefing and Argument in Texas, Legal Services in Texas | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

GAY DIVORCE IN TEXAS?

           Question:  Can a gay[1] couple who were married in another state get a divorce in Texas?

            Short Answer:  Such a couple may have several options for ending their relationship, depending on exactly what objectives they are seeking to achieve.

            Full Analysis:  The United States Supreme Court is widely expected to take up the constitutionality of the federal “Defense of Marriage Act” (“DOMA”) in the next year or so.  Several states have authorized gay marriage or civil unions within their states.  The question for the Supreme Court will be whether the federal government can ban the recognition of those marriages under federal law.  A related question will be whether the individual states will have to recognize a marriage that occurred in another state. 

            About 50% of conventional marriages in the United States now end in divorce.  I see no reason to expect gays to have a much higher level of commitment.  Thus, it is safe to assume that gay couples will get married in one state but move to Texas and then want to divorce.  What are their options?

            Texas has both a constitutional provision and statutes that prohibit the recognition of any “marriage” or marriage-like arrangement in Texas, other than one between one man and one woman.  Texas Constitution Article 1, section 32 provides:  “(a) Marriage in this state shall consist only of the union of one man and one woman.  (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”  The Texas family code provides that no state or public subdivision of the state shall give effect to any “public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.”  Opponents of gay marriage to say that a court cannot grant a divorce in Texas based on these provisions.

            I believe that gay couples wanting to break up have the following options in Texas:

  • ·       Don’t Involve the Law – In the eyes of many state officials, your marriage ended the moment you crossed the state line into Texas.  If your break-up is extremely civil, you can settle any questions of property or children on your own.

 

  • ·       Seek The Assistance of a Mediator – A mediator is a neutral party that can assist you in resolving any disputes you may have about your break-up.  The mediator will meet with both parties and listen to their disputes.  Then the mediator will put the parties in separate rooms and meet with each party on a one-on-one basis.  The mediator has no power to compel any of the parties to agree to anything.  A skilled mediator will help the parties find solutions to their issues.  At the end of a successful mediation session, the parties will sign an agreement that records the settlements that they made during the mediation.  This agreement is a legally-binding document.  Mediation has the advantages of being comparatively swift, cheap and totally private.  

 

  • ·       Submit Your Disputes to Arbitration – As discussed above, in mediation the mediator has no power to decide any issue.  The mediator thus must be skilled in getting two contesting parties to each make compromises.  In arbitration, on the other hand, the arbitrator has the power to hear the disputes and then make a judgment.  Arbitration can be similar to an actual trial.  It can have witnesses, lawyers and evidence.  The parties must agree to go to arbitration and be bound by the arbitrator’s decision.  Once the arbitrator makes a decision, that judgment is recognized as legal under both state and federal law.  Arbitration can be less expensive than litigation and is generally quicker than going through the court system.

 

  • ·       Seek To Void Your Marriage – Even opponents of gay marriage agree that it is possible to go into court in Texas and have your marriage declared to be void.  The judge hearing the case will also have the power to separate property and protect any children.  At the end, you are just as “un-married” as if you went through a traditional divorce.

 

  • ·       Leave Texas – Depending on your financial situation, one of you can go to a state that does recognize your marriage and seek a divorce there.  Such a maneuver usually requires that the spouse that stays in Texas to at least agree to the jurisdiction of the out-of-state court.  For many decades, heterosexuals would use this maneuver to get a divorce in Nevada that they could not obtain in their home state. I suspect that one or more states may become the new Nevada for gay couples.

 

  • ·       Fight For Your Divorce – I admit to be flabbergasted at the rapid spread of gay marriage in the United States and around the world.  I did not expect it to happen in my lifetime and certainly did not expect it to spread as far and as fast as it has.  I believe there will come a day when it is possible to get a divorce in Texas without any consideration of the gender of the spouses involved.  Such an outcome will take patience, courage, and a significant amount of money and effort.  There are sure to be defeats along the way.  However, the victories that are now enjoyed by the GLBT community came about because of the courage and perseverance of brave men and women in the past.  If you want to be part of that brave tradition, you can fight to have your divorce heard and granted in Texas.

 

If you are a gay couple that married somewhere else and then moved to Texas, I encourage you to work out any differences and stay together as long as possible.  If the time has come, however, to end the bonds of matrimony, I encourage you to call me.  I will talk to you and try to figure out a way that you can achieve your goals within a reasonable budget and as quickly as possible. Call now or use the “contact” form on this website.



[1]            For this blog, “gay” includes lesbians, bisexuals, transgendered, queer and all other alternate expressions of human sexuality other than heterosexuality.

Posted in Legal Help in Texas, Legal Services in Texas | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

THE TEXAS LEGISLATURE – WHAT YOU NEED TO WATCH

THE TEXAS LEGISLATURE – WHAT YOU NEED TO WATCH

Mark Twain is reported to have said, “No man’s life, liberty, or property are safe while the legislature is in session.” 

The Texas Legislature returns to Austin in January.  Bills are already being filed to be considered in the new session.  In all likelihood, one or more of those bills will have an impact on you.  Thus, you need to pay attention to what might go on at the Capitol.

As someone who has been around legislatures and the legislative process most of my life, I thought it might be helpful to explain some of the basics of the Texas Legislative process.  This is not a guide for “how a bill becomes a law” as you might have seen on “Schoolhouse Rock.”  Consider it more of a roadmap for the innocent and unwary citizen who is trying to understand what is going on in Austin.

  • ·       The Legislative Process Is Not Designed to Pass Legislation – When I first started working for the Oklahoma Legislature, I thought that the purpose of the Legislature was to adopt legislation.  I was mystified at all of the rules that seemed to be obstacles to getting bills adopted.  I soon came to learn that the process is designed to sift bills, so that only the best bills can get through the process.  Thus, many bills will not make it past their first committee review.  I was also surprised to learn that, in many instances, this was okay by the legislator who had asked for the bill to be drafted in the first place.  They had satisfied some constituent by introducing the bill, but then did not push it.  Thus, the first rule of the legislative process is patience.  Sometimes it takes three or four sessions before a bill can actually be adopted.

 

  • ·       The Texas Legislature Is Less Partisan than Congress – Citizens who watch Congress in “action” get the impression that everything is driven by whether a given measure is considered a “Democrat” or “Republican” issue.  For example, if a measure is considered of importance to Democrats, no “good” Republican will vote for it – even if they sponsored identical legislation in prior sessions.  The Texas Legislature is not that partisan.  To be sure, there are some issues that are extremely partisan – legislative redistricting comes to mind.  However, most bills are below the political radar.  For example, if one legislator introduces a bill to fund more research on boll weevil eradication, other legislators will not see that bill as a “red” or “blue” bill.  Most bills are not about “hot-button” issues like abortion or school vouchers.  As a general rule, most Texas legislators are friendly and easy to talk to – even if you never voted for them or their party.

 

  • ·       Watch The Power of Outside Influences – Whether they are called “lobbyists,” “special interest groups,” or “my good friends,” there are multiple groups that have enormous influence within the Texas legislature.  For example, if you want to know whether a given bill is likely to live or die in a legislative session, it is prudent to find the position of the Texas Association of Business.  Few things can kill a bill more quickly in Texas than to be labeled “anti business.”

 

  • ·       Outside Influences Are the Source of Most Bills – While some legislators have some “pet” bills that reflect their philosophy, most bills originate from an outside influence.  For example, Senator Rodney Ellis has introduced a Joint Resolution calling for a constitutional amendment to allow casino gambling.  Several such joint resolutions are likely to be introduced this year, as such bills appear to be a comparatively painless way to raise revenue.  This particular resolution has a very specific provision that I strongly suspect was written by one particular outside influence.  It calls for the granting of up to two casino licenses to:

casino-anchored destination attraction development projects located on islands in the Gulf of Mexico that are tourist destinations with at least 1,000 guest rooms available for visitors in hotels, motels, or condominiums existing on January 1, 2013. 

I visited a client on South Padre Island earlier this year and the client pointed out a spot of land that “everyone” believed had been bought by a casino.  If true, that casino management is very patient and far-seeing and has a good handle on the legislative process.

  • ·       Watch Committee Assignments – Most of the work of sifting bills happens in committee.  A bill will be assigned to a committee, where it will have its first hearing.  The best analogy I have heard to the legislative process is the process used by college admissions boards.  If a university has 10,000 applicants for 300 positions, the admissions review board will have criteria for which 300 candidates make it through the process.  The review is not always logical or fair, either at the college level or at the legislature.  Because committee approval is so critical to the life of a bill, committee chairmen can be very powerful.

 

  • ·       Legislators Do Not Read Every Line of Every Bill – The Texas Legislature handles thousands of bills during a session.  (In 2011, they considered 10,315).  No one could read every line of every bill.  Thus, it is possible for some clever bill drafting to slide through.  One of my favorite examples was a bill that regulated pay telephone rates by capping them at levels listed in an advertisement that had been placed in the Dallas Morning News a couple of weeks before the bill was introduced.  Of course, the outside influence seeking the bill had placed the ad in the paper, and set the rates very high.  If a bill affects you or your livelihood, YOU should read it carefully.

 

  • ·       Watch the Deadlines – The Texas Legislature runs on a series of deadlines.  If a bill doesn’t make it past a given deadline, it is generally considered dead for the session.  (Yes, I know ways to possibly resurrect a bill after it dies – but I’m not going to give away all my secrets here!)  Some legislators deliberately engage in delaying tactics in order to kill bills that are not considered by the deadline.  This can have side-effects, as it may also kill bills that the legislator favors.  I have watched several hundred bills die all at once by a well-placed point of order.

 

  • ·       Watch the Product of Conference Committees – A bill you favor has passed the House and a slightly different version has passed the Senate.  Your bill is just about to become a law, right?  Not necessarily.  It may still have to go to “conference committee” to iron out the differences.  Conference committees are composed of an equal number of House and Senate members and they put together the final version of the bill.  It is possible for a bill to be substantially changed in conference.  It may slide out at the last moment and be adopted without most legislators knowing what was in it.  I recall a situation in Oklahoma where a multi-page bill was rushed through the Senate and then the copies of the same bill were taken over to the House, where the bill passed.  Afterwards, we looked at the bills and found that they had been stapled on all four sides and no one had noticed!

 

The legislative process is not all logic and reason.  “Horse trading” is common – a legislator agreeing to favor a bill sponsored by a colleague if the colleague will, in turn, support a bill sponsored by the other legislator.  Legislators can be bitter enemies on one bill and co-sponsors on another.  The rules can be arcane.  As one observer put it, “If you like laws and sausages, you should never watch either one being made.”  (Interestingly, sausage makers take offense at this statement, as their process is much more controlled and uniform than the messy legislative process).

 

If you have a bill that you want to pass (or defeat) and it is of importance to you or your organization, please contact me.  I can help guide you through the process at the Texas Legislature.

 

 

Posted in Legislation in Texas | Tagged , , , , , , , | Leave a comment

TIPS ON PICKING THE BEST LAWYER FOR YOU

Looking for the best lawyer?

If you are reading this, you are on the internet. Chances are, you have a legal problem and are looking for a lawyer that can help you with that problem. However, you are seeing lots of slick web sites, loaded with lots of people in suits and ties (or professional dresses) who appear to be competent. How do you choose which one is the best lawyer for you?

I have experience as both a client and as a lawyer seeking clients. I’ve worked for large companies, represented small companies, worked in a large law firm and am now in private practice as a solo. Not every law firm is a perfect match for every client – and vice-versa. However, how is someone to know that they are looking at the best lawyer for them?

Criteria for Judging the Best Lawyer

First, you want to make sure they can address your legal problem and are experienced enough to help you with it. You can read more about my experience in my blog entry “Winning.”  http://www.popelawtx.com/blog/2012/06/winning/

You also want to know that they are affordable. You can learn more about my rates in “Free Initial Evaluation of Your Case” http://www.popelawtx.com/blog/2012/04/free-initial-evaluation-of-your-case/ and “Market Pricing for Legal Services?”http://www.popelawtx.com/blog/2012/06/market-pricing-for-legal-services/

Beyond those factors, the best lawyer is one who fits your needs and your personality. Factors that you should consider:

Does the Attorney Communicate With You? – The Bar Association says that the number one complaint they get about lawyers is that the lawyer does not communicate with the client – does not return phone calls, does not answer e-mails or letters. I hired a lawyer once and then spent weeks trying to find out whether a particular document had been filed. I personally find this astonishing. I keep my clients informed of every development in their cases. I strive to call clients back the same day they call me.

Do You Deal With The Lawyer You Hired? – A large law firm can be staffed by numerous employees – senior partners, associates, paralegals, secretaries and clerks. I was once a client in a law firm that was so large, they gave directions by using the artwork on the walls as a guide – “turn left at the suit of armor and then turn right at the big painting of the sailboat.” Some clients find that size reassuring and some major cases need offices that large and fancy. However, it also usually means that the client’s legal work is being done by someone lower on the totem pole than the senior lawyer they hired. I am at the other end of the scale – I am a solo practitioner, currently practicing without staff. If you call my firm, you talk to me. If that level of contact is important to you, I encourage you to hire me.

Does The Lawyer Try To Achieve YOUR Objectives? – As an appellate lawyer, I hear a lot of stories about trial counsel who did not do what their client asked them to do. They refused to put on evidence, did not prepare for the trial, did not subpoena needed witnesses – the list goes on and on. I also hear about harried criminal defense lawyers who work out plea deals without explaining them to the client. I do not understand these kinds of lawyers. I can understand that sometimes a client’s objective cannot be met, because the law is not in their favor. However, they should explain this to the client and not rest until the client understands. You are the person who is going to have to live with the consequences of your case. I put my client’s needs first.

How Aggressive Is The Lawyer? – Bar meetings used to be filled with stories of “Rambo” lawyers, who were unprofessionally rude to everyone. They apparently mistook rudeness and aggressive behavior for advocacy. If you want one of those lawyers, do not hire me. I am polite to everyone. I will work with my opposing counsel and treat them with professional respect. If I think it is your best interest, I will encourage you to go to mediation, rather than go through the expense of a hearing. To be perfectly clear – if we do get into a contested hearing, I will zealously argue for your position and will cross-examine opposing witnesses to show that they have flaws in their testimony. However, I will do so politely and professionally.

• How Prepared Is the Attorney? Some attorneys “wing it” at hearings. I am not one of those lawyers. I was taught that trials were won and lost in the library – which was a way of saying that preparation for the hearing was the most crucial part of the case. I will have every exhibit prepared, all of my legal research done, every cross-examination question prepared in advance. I will also prepare you for the hearing – go over the questions I will ask you and the questions you are likely to endure from the other side. If time allows, I will have someone do a “mock cross” of you – grill you aggressively and sarcastically. Most witnesses that I have done this with tell me that my mock cross was much worse than the real thing. If you think that is the best lawyer for you, please contact me.

Is the Lawyer a Creative Thinker? – When I was General Counsel for a telephone company in Dallas, I quickly learned that my management did not like to hear, “The law won’t let you do that.”  I learned to listen for the business objective my managment wanted to achieve, then see if there was a way to achieve that goal within the boundaries of the law.  To use an over-worn cliche, I learned to “think outside the box.”  This habit has come in handy ever since, as other lawyers will ask me for creative responses to their problems.  I think creativity is one of the attributes of the best lawyer.

 

Does The Lawyer Have a Good Work/Life Balance? Some law firms work their lawyers to the bone, demanding that they work nights, weekends and holidays. I do not think that is healthy in the long run. I am active at my church, the Austin Center for Spiritual Living http://austincsl.org where I currently serve as President of the CORE Council (the board of directors). I am also an actor, represented by the wonderful people at BLVD Talent.  www.blvdtalent.com Through my church and my other activities, I stay in touch with positive, supportive and creative people.

As noted above, what constitutes the “best lawyer” varies from client to client and case to case. However, if you want someone who will listen to you, focus on your case and your needs and do so in a professional manner, please give me a call at (512) 689-7815 or drop me a note at ed@popelawtx.com   Call me now, while you’re thinking about it!

Posted in Legal Help in Texas, Legal Services in Texas | Tagged , , , , , , , , , , , , , , , | 1 Comment