CriminalCriminal

DWI Voir dire Jury Trial Jury Selection evidence

Voir Dire…to tell the truth in voir dire we need to talk about the law. Tell the jurors about the law, tells them about the presumption of innocence, that it is a right afforded everyone in the presumption of innocence alone is enough to equip. I’m sorry! I have a— I have never talked in front of my colleagues before and I’m terrified, I’m scared shitless and I’m scared that I’m going to embarrass my partner, I’m going to embarrass myself and I’m embarrassed I’m ashamed and scared that I’m going to look stupid in front of you all.

Let me ask you all this and I am sorry to use a gimmick and trying to act, I am not a very good actor but you know it isn’t a law but it is a question that I want you to ask yourselves is ‘’was there a difference in how you responded to me’’, you probably have zoned me out and said ‘’shit I’m wasting 30 minutes when I started talking, I was not looking at you all. I was telling you what you should do, was there any difference when I revealed to myself that I was vulnerable. I would hope that even if you didn’t have the urge to stand up and push me aside and say that ‘’I would help you out and I will finish the talk for you’’

I would hope that inside of us may not work because I don’t believe in trying to use a gimmick and fake it but I’m going to talk a little bit about vulnerability today in our presentation today and using that in our void dire.

Some of this is—I’m sorry! Some of this is going to be a little basic. We all know that jury selection is the only time we get to talk to our jury panel and the paper I wrote is titled ‘’DWI void dire’’ and it is all about DWI void dire and as we are presenting this or preparing this presentation, I saw that there is all kind of civil or various stuff in it so I tried to make the talk a little more applicable to all of our fields and I hope it succeeds. When the Jurors are coming in to that quorum that we all know, they are walking in with their own life experiences, their own feelings, their own opinions about everything that they have encountered, everything they believe in their life. They already have an opinion, however small or strong about you and your client before they walk in and they walk in into a criminal courtroom, they know they are walking into a felony courtroom or misdemeanor courtroom or federal courtroom or the coming to the civil case and we cannot change what it is that they have experienced and we cannot change what it is that they believe and feel as they walk in but the one thing that we do have power over is how well we know our case and facts that we need to show them as the trial is progressing and those facts and those issues as that we know, we are going to start to illicit to get out to educate during void dire and there is example of what I’m talking about—about what someone… how does this play though, sorry it’s smarter than I’m, of course it’s not going to work or there we go, the mouse… thank you!

[Illustration video plays 00:04:37 -00:04:50]

That state or the plain of whose accusing our client of doing as we play guess, do you all think that is what really happened. When we know the facts, this is what we would like them—the juror to be open minded to understand to receive what exactly happened.

[Illustration video plays 00:05:19-06:26:00]

And I’ hope that wasn’t too…too out there. My partner originally wanted to video tape it using himself but I said, no!

So that’s what I was talking about, what is the goal of void dire? We need to build the relationship in.

How are we going to build the relationship? How do we connect with people in this case? I don’t know 40-35 people that we probably don’t know. Don’t have very much time to spend talking to them.

How are we going to know what they feel?, what their opinions are about the issues that are in your case and so what our goals is this is to know what they feel and what they believe, to create an included group, in that group in a perfect world our client is going to be the part of their group or our group and that we are going to be their guide and their captain.

So how do we actually do it? and how we build a relationship and this is why maybe I bombed when I started earlier off…we need to create credibility and again I’m going back to what I was talking about earlier, when I was sitting here and reading directly off of a notepad and not looking at you all and telling you all what the law says and talking about just some abstract theory. I would bet—I think it is safe to bet that I was very effective that probably were already zoning me out, were not listening to what I had to say or being willing to receive my message.

So to build credibility is what we do in any relationship, whether it is friendship or it is a professional relation, we need to find something that we share and we have in common.

One thing that we all have in common is we all are vulnerable. Our clients are vulnerable, you are vulnerable, I’m vulnerable. We have fears, whether the fear is a personal fear… I really am afraid of speaking or this is my first trial or I’m in a wide jurisdiction, I have a minority client or I have got a white client in minority jurisdiction or the charge itself or the facts. There is the going to be a danger issue or fear that even if people cannot relate to the exact facts, we can relate to the experience.

Again and I know we all lawyers and I am not asking for everyone to show—to answer by showing hands or standup but even as lawyers, how many of us—even before we speak and get up before jurors or before anyone else has that gnawing sensation in our stomach. If someone can—if someone can understand an issue that you are feeling and you are trying to present there, we will have a much better understanding of it. Again, what’s more effective?

To tell someone how to think, if you ever had an argument with somebody, your wife or your husband, girlfriend, business partner, is it easier to tell them that you’re wrong and I’m right. It is unreasonable for you to think the way you do or if we talk to them in a way and show them an example that they can relate to. Is it easier for us to understand a theory—you know like—I am not talking about presumption of innocence, I am going to talk about it in a second, or is it easier to understand it when we can relate to it.

So judge, at least in the trials that I have done reads the law

‘’All persons are presumed to be innocent and no person maybe convicted of an offense unless each element of offense is proved beyond the reasonable doubt. The fact that he has been arrested, confined or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial’’

That sounds good, what does that mean? I don’t know about you all but I can only speak from my personal experience, I can’t tell you that there is not a single trial that the judge does not read that or something to it, probably talks even a little bit more about it. It is a constitutional right, the presumed innocent and once we start talking with the jurors, we realize that it does not sync in, it does not make sense because it is not them that it is applying to.

What I have been using in the last few jury trials and things have been effective and I had a chance to talk to some off the jurors’, I tell them on the criminal cases, my greatest fear is that an innocent person ‘’my client’’ whoever he or she is, is going to be wrongly convicted on my watch, that’s my greatest fair. Later this afternoon someone was talking about Michael Moore, a gentlemen that did 25 years in the prison for a crime, he 100% denied that he didn’t do. How that make us feel, any of us if a client that we represented was convicted and we found out later that he was 100% innocent and we failed him. Has anyone in this room, whether it is a legal case or with family or friends, have any of us ever defended someone when we were not good enough and we failed them.

I used that and talk about and ask them, our innocent people wrongly convicted and when I very first time did it in void dire, I was really nervous because I was thinking ‘’Man! no one is going to think this stuff happens, no one wants to believe that innocent people get convicted’’ and I was gladly mistaken that surprisingly a good number of people were vocal and talking about the fact that people get it wrong and where they started from and what I realized is, the reason why they were able to understand it because they have gotten it wrong in their life, either someone got it wrong about them or they got it wrong about somebody else. I talk about obviously the news and I use Michael Moore and I really was interested in that CLE, I talk about the number of people that I have spent time in prison incarcerated, at least in my records and hopefully if someone has better numbers please tell me so that I can change it. The national registry of our exonerations as of May 1st 2015 when I just last checked, had over 2000 exonerations, 2000 people that had been put in prison and convicted that were 100% innocent and I’m very kind to jump in this.

The reason why that I keep asking about feelings versus opinions is this, is that I am a convert and I do believe that there are two sides to our psychic that we are trying to figure out when we are talking to people, especially in a short period of time. You probably know this from your own experience, when the judge during challenge’s for a cause and the judge says ‘’are your fair and unbiased?’’

How many people say ‘’Yes, I am fair’’. When the judge says ‘’Are you biased and can you be fair regarding this person?’’ and everyone says ‘’Oh yeah, yeah…I can be fair’’ because that is the logical side of their brain saying that ‘’I don’t want to admit this vulnerability, I don’t want to admit that I have this issue’’ but if we talk about feelings and leave those words, those hot points that we know to look for that are the red flags, we can try and to get at what they are really at. If we going to allow the jurors to do their job, we have to empower them, this is my opinion, we have to let them that we trust that they are going to come to the right verdict and we talk about it. In the criminal case what is the juror’s role? That they are the most important person in that court room, the more important than the offense attorneys and prosecutors, the judge sometimes gets mad, they are more important than the judge, their sole purpose at least in the in criminal case is to act as the legal bodyguard for the person sitting to your right for your client. They are the last safe guard before sending an innocent person to prison. We know for the fact that at least 2000 juries have gotten it wrong and those are the ones we know about.

I spent at least personally, probably a third of my talk focusing on the presumption of innocence because after we talk to them, I will ask them and I got this from my brother and from Neal. When you walked in to the court room and you saw us sitting here at defense table, what did you think and they will still say ‘’You know what he was accused off’’ well if you had a vote right now, guilty, not guilty or need more information, sadly even after we spend 10-15 minutes talking about it, talking about their feelings, they will come back and say ‘’I want to hear more’’ because it is that abstract theory, it is not something that they can tangibly grab and so when we empower them, when we take it out of theory at least in my opinion and we put it in their hands and we say ‘’Look, we are not talking about theory, we are talking about Mark LaHood is on trial for a crime and Mark’s life is not in your hands. Can you look in my client and say that ‘’you are not guilty unless the state proves otherwise’’ and can you look at my client and say you are not guilty unless the state proves otherwise’’ and by doing that we are furthering our credibility, furthering our group because know we have included them and more importantly included ourselves and made it real. I put a couple of slides that I actually use in my void dires and I hope you will bear with me and I hope you can take something from it.

So we talk about the presumption of innocence legally and talk about it in the court of public opinion, you know what we deal with in everyday life because that is what the people are walking in largely dealing with in everyday life. Anyone hear or remember the Olympic park bombarding back in 1996? Most of us do or at least heard of it in some shape or form and I include the graphic so we can talk about, Time and Life did an article on Richard Jewell and it said ‘’from courage to cowardice’’ there was a package—that was in a backpack that was laying in the Olympic park in Atlanta Georgia and the security guard did what we would hope a security guard would do when he sees a suspicious package, he clears people out. Unfortunately, it was a bomb and it went off but he saved everyone, he got it out of the way, no one died directly from the explosion. Richard Jewell was hailed as a hero. The news media, the public opinion, the word on the street was that this guy is a hero but the FBI started investigate and suspected, they went through his computers and they found some evidence, whatever that maybe to suspect that he was the one that did it. They even created a syndrome or a title, they called it a hero syndrome or they applied it to him that he is kind of a person that would create a dangerous situation so he can try and act as the hero and get all that praise and applause from it and as we saw on the Time Life magazine, he was 100% convicted and guilty in the court of public opinion, we had our minds made up. We just did a trial couple of weeks ago where we were talking to some of the jurors after a mistrial and one of them was very open and said ‘’you know, when I went home after we were talking. I was watching the news and I realized that when I hear about someone getting arrested, I was thinking they did it’’. That is the court of public opinion. Was Richard Jewell guilty?

He was not. Who was guilty? Eric Rudolph, he was an anti-abortionist, sent out a couple of bombs, that was the first of several. He was a 100% not guilty and here is a common sense question and we know the answer right now. But who has more power and resources? Cameron County, sheriff’s office or Brownsville Police department or any other Police department or the FBI?

It’s a no brainer, the FBI. We have seen the CSI and all those shows. They have federal funding, more people, more technology. They thought he did it. The FBI was wrong.

Again this is the burden of proof chart. I am down to just a couple of minutes so I am going to go through just a little bit. The same logic in my opinion that applies to any of the laws or theories applies to the burden of proof. It is the abstract theory. How do we make it apply to the people that we are talking to, the people that are going to be eventually be in our juries or our future jurors.

As most of us know and all of us know, the reason of suspicion in probable cause is what the state needs to proof to detain us, arrest us or search us and bringing it back to Richard Jewell, I like to ask. On the scale of scintilla which is barely anything to beyond the reasonable. Most people are familiar with the civil case, divorce or a car accident. We all know the standard for that is what? Balancing test right?

Is it more likely that something happened or did it not happened and I would like to ask them this, if we have a scale, if you are the scale or if the cop is the scale and we are coming in to a situation, do you think it is more likely or not, there is enough evidence to say that it is more than 50% likely for an officer to arrest us and people still think ‘’yeah, it is more likely, it is more on the upper end’’ and we tell them ‘’no, unfortunately it is not, it is on the lower end’’ for an officer to arrest us, there isn’t an exact number we can put on it but it is less than a 50/50 chance. It is called probable cause but it is not probable. If that is all that they meet, what must their verdict be, go through not guilty, probable cause. Reasonable and specific object of facts that would lead an officer to rationally infer that the specific person has committed a specific crime, not guilty, preponderance 50/50.

I will ask you all this, (show of hands) how many of us have kids? So about half…

Again one way that we used to take it from theory is to talk about our kids. Clear convincing is a firm belief that the allegations saw the truth that is what the government needs to take our children from us. How much evidence would the government need to take your kids from you? How sure would they have to be? How thorough of an investigation?

These are just some thoughts and ideas that we use when we are trying to talk to the juries about these issues in the case. I got 10 seconds; I got to do a gunk show on me. What I will say is this; the last thing I will talk about is the visuals. I never did a power point until about a year ago. We kept talking to jurors after jurors after jury pulls and the study shows that visual helps people to both remember, visuals for whatever reason help give you instant credibility, they think that it is more legitimate and just as on a personal side, when you are flustered or angry or whatever is going on or something comes up, it just kind of helps you keep you on point. I highly recommend doing a power point of some sort or always having a visual of some sort. Thank you for your attention!

[Soaking up some CLE – 2015]

[The Mechanics of E-Filing]

Total filing system, you know have your folder from left hand side and you could actually scan things in there two ways. You could just put everything in a stack of paper and scan it all and hopefully would find it later or you could create your little file cabinets and within those file cabinets you would actually put in folders and within those folders you put in more folders and every folder, if you did it right, you would name it and will be able to find what you needed. So if you are looking for IRS tax information, you type in IRS and it would take you directly to the folder and you see exactly what you’re looking for.

E-Filing is pretty much the same thing. You have the feud between a lead document and an attachment, how should you file it? For a districts clerk office in Cameron County, we simply say ‘’file everything as a lead document unless it’s a cover sheet or a cover letter’’ and the reason for that is we actually have the Odyssey case management system. So what that what does is, every lead document goes into our case management system as an individual event and as you start filing more cases and all these, and you start filing all these documents, every single lead document turns into a lead event.

So when you go in to our case management system or you go into our public access system, you actually see every single entry as opposed to—if you actually do one lead document and actually put five attachments underneath, when you actually go into our case management system, you will have to drill down and the reason we are saying this, when we started doing our E-finance, we said ‘’who is our target audience?’’

‘’Who is going to be actually looking at these document, when we initially file them?’’

First person that will be looking at them will be the court clerk, second person that will look at them will be the judge, third; attorneys and eventually once the case is all settled, it will be the parties who filed it or any third party that actually needs information from that. So especially for Odyssey, the best way to do it is to file it as a lead document, attachment should only be the cover letter or the OCI cover sheet and this eventually goes a little bit farther. We are getting away from paper files and as we get away from paper files and as we get away from paper files, it is a lot harder to find documents in a digital world if you don’t enter them correctly and eventually put them in to the system as it should be. You know, before if you wanted to look for a document, you get the file, flip through it, put a little sticky and that is where you know what you are looking for. Now you have a digital media you know, you can have 20 entries in Odyssey or whatever case manager you are using and be able to go exactly what you’re looking for as opposed to go through every single document and try to actually find what it is the document that you’re looking for but as—and it’s not just for Odyssey you know, I am talking about Odyssey for our case management but if you actually look at the all the EFS piece, they are all pretty much setup the same way. Although the actual structure of what the information they are looking for is actually different. They all are based on whether it is a lead document and attachment.

Now can you file multiple lead documents in same envelope?

Yes you can! One of the reasons that this is done so that if you have your motion, your order then you have three more affidavits and whole bunch of stuff that goes with your filing, you know it makes a lot more sense to be able to file one envelope with everything that you need just like if you’re sending a postal envelope to the clerk’s office with everything, it is same way. You put everything in one envelope and you make sure everything is a lead document, only attach attachments as necessary and then send it off. What does this? It makes it easier for the court clerk to actually process your filing in one single sit down as opposed to opening 10 different documents and as attorney it makes it easier for you because you are only getting charged once which is for that initial envelope that goes into the clerk’s office.

Now anybody has questions about that so far? Yes

[Question asked by audience]

Actually when you actually put order and you try to go the next section, it will tell you that you’re missing the document that corresponds with that filing. So unless it is a technical issue with the EFSP, it will remove error out and it won’t let you continue. So the answer is no, unless it’s the technical problem with the EFSP because it will error out.

Any other questions?

[Question asked by audience]

Yes and his question was that he has filed a motion for summary judgment and he includes the attachments or the exhibits as attachments for the lead document and it does get approved but we prefer it to be the motion for summary judgment as the lead document and the exhibits as lead documents and the reason for this is eventually—this is the reason, if you’re in the court and how most counties are going where the judge will have their workstation in front of them, it’s easier for them to see their motion as a lead event and then have the exhibits as also events underneath the actual motion. Within Odyssey there is something called related events, you will see your motion and if there is an order than you will see a drop down or it will be indented towards the right and then it will say order, so you know that that order corresponds to that motion and as the judges starting working with this information, they will pull up the case and they will see their motion for summary judgments and what we do in Cameron county is, if you go ahead and do them as attachments, we will accept it, we will move it over as individual events in Odyssey and then we will call you and tell you ‘’hey, I know that you filed this motion as a lead document and included attachments but for ease of use for everybody else and for you eventually, please add them as the lead documents’’ and the case is that the judge that will be in the court room, he will be pressing the keyboard or mouse or whatever, he will go to the case, he will be able to see his motion and everything that is underneath.

So if you tell them, ‘’hey you know what. I am referencing attachment 3 or exhibit 3’’ He will see exhibit 3 and press it as opposed to having to drill down and kind of figure what’s going on and the main thing is that when you’re in court we want to make sure we expedite what is going on and when we were in a paper world he could actually just tag everything. It’s not so easy now with the case managements systems unless you have the users who are trained and some of these case management systems don’t have those specific features that will allow you to do that but fortunately for use Odyssey it’s pretty good about that, so we kind of tend to go that way. Any other questions about that?

[Question asked by audience]

They did have a computer in their offices. Judges edition got installed I think about 3 weeks ago and they are currently going through training. I believe two judges are already using it 90% off the time. So I think in about maybe 2-3 months we will have all of them on board.

And I think for all that it’s more of a learning process. You know we have to make sure that we train them correctly and show them ‘’Hey, this is how this is done’’ and it is not only for judges, it’s also for the court clerks and the attorneys you know, we have been on this for about an year and even now there are things that come up and kind of trip us over a little bit. You know we can’t think of everything but as these issues come up and arise, we deal with them on case by case bases.

The main thing is that this was setup in a certain way so that we can find the information when we need it and if we continue to go and continue the process, eventually we will get to the point where it will be perfect but every different district clerk’s office and county clerk’s office handles these things differently. As far as Cameron county is concerned, we have actually looked at it and we have seen that this is probably the best way to handle that so that you can get the information you need, we are able to keep a track of the documents as they are filed and he judges will be able to access them as they go through court.

[Question asked by audience]

That is up to each individual court. I know that for right now our tax suits, we have actually talked to our tax office and that is probably the case type where everything—we generate very few paper, mostly about five sheets of paper and it is only documents that judge signs. In the next couple—about 2 months we will be coming with e-signature that will allow us to completely eliminate paper within tax suits that will eventually go through to the rest of the case types.

Any other questions? Okay, some of the other—I think you saw my flier but the other thing we talked about was OCR and how it benefits. If you are generating your documents within Word or any of the legal document creation systems, most of the things will actually go ahead and create the OCR on the flight. We got to understand that sometimes as these cases move along, the end result is two; the case gets disposed or it gets appealed. When it gets appealed, we have to create additional documents and all this information has to go through a 3rd court of criminal appeals and it has to go through a set format and I think when they first went through this they kind of feared ‘’hey, let us just think that every case is going to get appealed and if will get appealed, what are the requirements by these courts?’

One; that it is 300 DPI, two; that it is OCRed so that they are able to actually look for the information within the documents in a much easier way, so I am thinking that’s probably why they actually did this as far as the OCR and a 300 DPI. On the other note, that 300 DPI, if you all of you have ever taken any photos and you see them on your phone, they look great but once you print them out the integrity of the image is not so good, the resolution, same thing with documents. You know we have a lot of documents that gets filed and they tend to be 200 DPI. They might look good on the screen but it is until you print them out that you lose some of the resolution and that was pretty much the basis why they did 300 DPI and not 200 DPI.

As far as most of our systems being mobile, what we have been doing in the district clerk’s office is actually making our documents compatible with office 360 which is the Microsoft’s version of being able to use Word and Excel and all that stuff on your phone or your tablet. The reason for this is, we know that sometimes you are not always at your office and then majority of the times the stuff that you filed might be the same thing. So we want to make it easier for you guys to be able to file that stuff with our office and that is why we are like—the majority of our formats, we are making them compatible with this specific software so that if you need to do a cover letter or you need to request service or you have a certain thing you need to do within the actual case type. You will be able to use the office 360 to file into the E-Filing system either with your phone or with your tablet. So that are some of the things that we are doing just to make it easy for you and make you guys a little bit more mobile. Does anybody have more questions? No? Yes sir! Sure!

Question by audience: I think one of the biggest problems that I have experienced with the E-filing system is the handling of the TROs. Has there been any talk about resolving that issue?

The way we do it is if there is any TROs or protective orders, we actually fast track those. We process the case and make sure that case number depending on what court it is, we actually print the documents. Our future goal for that is to ensure that those are—the judge knows about them really fast is we are actually testing a piece of equipment called Microsoft surface. That seems to be the actual equipment that seems to be pretty good with Odyssey and Odyssey Judges edition and E-signature so what we see that is going to end up happening at least here in Cameron County is that we will probably be assigning a surface pro to each district court with inert capability so that as these cases are filed, we will forward them to Judges Queue, they will get a pop up on the surface Pro, they will be able to sign it digitally and send it back to us. We foresee that we will be up and running in the next 6-8 months and it is mostly because of the testing between our odyssey case management system and surface pro, hopefully with that that will take care of that issue that you are having you know where time is of the essence, you need to make sure that it gets signed or hearing gets set and you want it back soon instead of having to print out the paper. Did I kind of answer your question or? Does anybody have any other questions or comments?

Question by audience: In the old paper days the claimant used to come in to the office and gets routed to clerks and secretaries first and then the lawyer and there were administrative reasons for that that really helped out. In this case most times in our office the message is going to the lawyer first and a lot of those underlying functions really don’t take places, is there some way to do a correction to that so the people’s secretarial staff is getting a message from the clerk’s office?

Yes, within any EFSP there is the section that is called courtesy copy and I think you can handle it in two ways and I know that this efileteas.gov actually has it, you can setup your—the attorney is actually filing the petition and then the attorney is the filer but within your specific firm you can add additional users and within that specific user you can insure—you can add them as the notification for any filings, that’s one. The second is when you’re doing individual filings there is the section called courtesy copy, you will have to put the email address of your secretory so that whenever anything happens with that particular filing only, they will get the copy also. The third one is one that is we are actually working in our office for, we understand that sometimes the EFSPs or the software that you are using is not all encompassing and this is what we are doing, there are features within your email system that will allow you to forward—auto forward certain emails from certain individuals and what we are doing in district clerk’s office is we are actually creating videos that will allow you to handle this stuff outside of a normal realm of either the district clerk’s office or the ESFPs. So the video will actually tell you ‘’hey, you know what go to your email account, go to your email provider’’ any emails that come from efiletexas.gov or whatever agency are always named like this, go to file edit, forward, and then you just go forward all those emails from this recipient to my clerk. That way you don’t have to be worrying about ‘’okay, well did I do it right in EFSP? Did I setup the firm correctly?’’ You already know that if anything comes from the clerk it will be co.cameron.tx.us, you would get your but so would your secretary. If anything comes from efiling.texas.gov then you will get your copy and I will say so would your secretary. So you kind of eliminate any possibility of anything missing.

Now and if you guys want to check out those videos our website is Cameron county district clerk, you will find videos on how to set up some of these things that are not part of the main stream but that will providing you, so that it will make your job easier as being notified as to what gets files and just in case an attorney doesn’t include you in the filing as a service, it will also give you additional feature as to how to keep track of your cases and how to use free third party software that are used for either Google mail or Hotmail and we will keep track of your case and we will give you a notification on your cell phone. My phone just beeped and I know that it got filed. And this goes a bit farther than E-filing. But I think this probably one of the best ways to keep track of your cases. E-filing is one proponent but as we start gaining a little bit closer to an all-digital media some of these tools will allow you to become a little bit more efficient and more aware of what is going on with the case outside of the mainstream office and the EFSP.

Any questions or problems with E-filing that I can help you with? No?

Thank you very much. Appreciate it.

There is really three of us that were scheduled to give this talk and the district clerk from my jurisdiction from Hidalgo County is either running late or had a problem as they haven’t gotten here but I am going to take the entire time. I was selected to present to you the judge’s perspective the pros and the cons and I want to tell you that I did not start practicing from the days of Abraham Lincoln. However, I have been around for a few years and as you can see from my resume, it’s been almost 38 years and after my government service I started private practice and when I started the private practice within in the first quarter or first three months of the year. I received a call from an attorney I still remember in Gains Griffin from San Antonio and he had statute limitation problems and he called me about 4:30 and he said ‘’brother I need your help, I am in a need of dire need here, I need to file something there in Hidalgo county before 5:00 or the stature is going to run” and I said “you are in trouble, how you are going to get a document to me from San Antonio , bear county to Hidalgo County in 30 minutes or less” and he says ‘’well, there is this thing called a fax’’ and I asked ‘’what is that?” he says “well I can send you” “How can you send me a document from over there that comes from here in a few minutes and allows me to sign for you and go file it” I didn’t understand the concept of what a fax was and he finally said in frustration “Do you have some telephone company over there please and just asks them if you can borrow it and I will explain the details later?” So I went over there to the Tel company to Edward’s Tel company and I asked them if I could borrow their fax and I didn’t even know what it was or what it looked like or anything and I thought it was going to come and bit me or something.

So anyway, to make the long story short, they faxed over the document and I signed the document and I went across the street and I had it filed and after that I said “I’m going to get me one of those you know” and I thought I was big stuff because I had a fax machine as Eric says in his paper “we reached a new year in technology” when the federal court started using E-filing and all this group off us about same age as I were really resisting it and we did not like all this stuff and we wanted to—we went to the seminar and there was a federal judge that presented on the subject and I’m not going to name him but I’m going to tell you that he is one of your speakers at the end of day tomorrow and we all were sitting on the same table and the main reason we wanted to be there, we wanted to know is there any grandfather clause, can we just get an exemption to this so that we don’t have to do it , we have been practicing it for all these years and he very very directly and angrily said “no, there is no exceptions for anybody and if you are not using it and you are not going to adapt to it” he called us three names. One of them, I won’t mention all of them but draconian, “you are a draconian if you do not get to this or you are an idiot” you know. So we all looked at each other and said “wow! We came to pay him and paid for a seminar to be called idiots and to be really get scolded at” but he is here today speaking about another subject but I never forgot the words.

We have reached a new era guys. I was the last judge in Hidalgo county to accept that I just had to do this, there was no other choice and I resisted it as long as I could and there was a lot of problems because I just was not used to it and I found out that even though I was working very very hard and disposing of a lot of cases when we get our stats you know we look at how we are doing. You know I was kind of in the middle and I said “wow, I am working the entire day Mondays to Fridays and getting all these cases and I am still in the middle. How can I be here in the middle on the stats?” Well I found out about queues and I found out about all that stuff that was in my queue you know that I had not signed even though ruled on it and made a decision. I was kind of relying on staff to do a lot of this stuff because I was in private practice.

So I was asked to give a presentation on this subject and I said “ well, I am the one that resisted this, I am the one that was against it, I am the one that did not accept it until you know really the time that they asked me to speak, that is when I learned how to do it and I was going through some training and they say “where do we start with you judges?” I said “well, first of all how do you open this laptop” and I had it the other way around. I didn’t even know how to open it and they said “you need to start there and then let’s push this button is to how you get it on, turn it on” and eventually I just said that I am going to do this and now I am proud to say that I am up to date on my queues all the time. There is advantages and disadvantages that I want to address since Mr. Mannose wasn’t here. I think we are going to have time for questions and I always like to know my audience whenever I speak and I was sitting at the back with my friend Edmundo Ramirez and I said “what do you think about all this” “I hate it you know” I said “well, maybe we have another extra slot here” I was a little concerned because Eric was not here and Lana wasn’t here and they are the experts on this.

So I said “I will get you up there, we have to” but I am hoping that we get a lot of interaction here—that we get questions because there are a lot of questions. Flynn Molina, who practices in Hidalgo County and talked to you about restraining order. We have those issues, we have the cons you know if I could start with that, the disadvantages. I get a lot of lawyers that said “I did not get notice, I did not get notice” You know that is why I was not here therefore you granted a default judgment or you—whatever you did. So they filed a motion to reconsider or motion for a new trial and didn’t get notice and then we get into the machine and the computer—I think they call it computer and we find out that district clerk you know has a system where they do have a record of sending notice. However, some people on the other side. That is where you all come in, you don’t open it so if you don’t open it you know you don’t get noticed and I know that some of the people that don’t open it or people in my situation you know they are just resisting it as much as they can.

So you know Edmundo was telling me about were telling me about this big case in San Antonio where somebody didn’t get noticed or somebody filed it late or something you know but and there was a serious consequences. The—we tried and work on those things very carefully. I have very efficient district clerks in Hidalgo County and I have very efficient district clerks assigned to my court. Three of them are assigned to my court. So whenever there is a restraining order and you know everybody knows that I usually don’t grant them without asking questions. I get a lot of them on the Friday before the first Tuesday of the month or Monday before the first Tuesday off the month where they are trying to restrain a foreclosure sale and a lot times we are sitting in my court room and saying “we filed it Judge, we filed it this morning and now it is afternoon, have you ruled? “And I say “well, I don’t have it in my queue, my queue is up to date and I don’t have it here so go back and check. It might be with the coordinator or it might be with the district clerk but check it out.

So we have been trying to work out these glitches they say or these hiccups or whatever. So in terms of couple of other cons before I begin it to the many advantages of it is for us on the bench it is difficult because I don’t know if they got any input from judges when they passed—when they got all these things in the mechanics of the E-filing because we are there trying to listen to your case and look at you because we have to make findings and I have got a little background in psychology, that was my minor field and I observe people, I am not going to tell all the lawyers that practice before me but I can look at them and I can really tell if they really believe what they are saying you know just by looking at them and sometimes I ask them “you are really seriously going to make that argument to me and you can look at me straight in the face, look at me straight in the face and tell me that this is what the law is” but anyway, we are trying to do that because we had to make finding, we had to believe or not believe you know when we are doing bench trials you know trials of the fact and when we are trying to do that, we are trying to listen, we are trying to do all these different things and then we have to get them into our computers and one of the disadvantage is that you have to punch a bunch of buttons on the keyboard, I think they call it the key board. So you have to punch like 8 to get in to your username and then you have to put your password, that is another 8 and then you had to put your email and then you have to put the password and then you access it and then you have to go to the case and then after a few minutes of listening to arguments whatever then—you have to start all over again if you want to get in to the system and so those are the disadvantages and then they change the password on you and then they have updates and all that so it is very challenging for somebody you know like me that grew up listening to those little CDs that you all have now whatever? Mr. Gomes? Mr. Gomes from San Antonio, you remember those big records we used to have. A lot of the younger lawyers don’t know about that but that is how I grew up and it is really difficult to you know to make adjustments. However, saying that there are a lot advantages now.

We don’t have all that paper—all that extra paper although some of us don’t mind. You submitting a notebook, I know Edmundo does that, Rebecca and Maodo do that and I brought two or three notebooks with me over here just to kind of review last night. It eliminates enormous amount of paper in the files. You can actually be hearing the case and when you get in to the computer you can right away rule, you know you can get to the order and you can rule.

You don’t have to physically—you all don’t have to go physically go and file something. As in a private attorney I had a case that had to be filed with the supreme court, it was an emergency, Ridda Mandamus, okay and it was an election case and it had to be filed in Austin and it had to be filed because the election was starting the next week and I am telling you the difference because this is an advantage alright. We send somebody from Alamo Texas to San Juan Texas that have never been to Austin before so to go file this and it had to be filed before 5:00 on a Friday afternoon and we thought that by sending him by 10:00 o’clock in morning we would have no problems. Well, they were not from Austin; they didn’t know where the filing or the Supreme Court was and all that. So to make a long story short they barely made it to about 4:50 pm. We had the emergency order and then you know I learned the system in the supreme court where they ring a bell and all the justices wherever they are have to go immediately over there and they have to look at it and see—they deny most of them but in this particular case you know on Monday, this is Friday afternoon on Monday morning at 9:00 in the morning supreme court calls—the clerk calls my office and says that “we have decided to hear this case and we are going to give 24 hours for the briefing” So by the next day at 5:00 o’clock there has to be a brief filed and the opposing side as well. Well, you know it was very difficult you know so they relaxed the rules for us and allowed us to file it by fax and we did that by that time I had the fax machine. So we got the fax over there and then the next day they ruled, they ruled right away within 24 hours after they gave us permission and said that they were granting it. But it was very difficult because you had to physically go over there and rely on the mail, you know send it over and hope that it gets there in time and we would not have made it with the mail because if we if we mailed it on Friday, they would not have gotten it until Monday or Tuesday and it would have been too late.

To make a long story short, we won the case and granted Mandamus and they forced the people to put this person on the ballet but those are the things that we had back then and these are the things that are eliminated with E-filing. You can do all these things and it pretty well helps you quite a bit. Now, want to have a minutes, you know we still have what 10 more minutes for the questions because I know some of you are very anxious to ask questions about this. Anybody that want to address anything on how we view it or any problems that you all have, go ahead Mr. [Inaudible] [Question asked by the audience]

Absolutely, I am not have not offended by getting notebooks you know extra copy of the pleading and all of that and I don’t have a problem if you highlight the case you know when you have a 50 page case and you expect me to read whole 50 pages to get to the point. I don’t have a problem if you highlight them, as long as you highlight the copy that you give to the other side, you know it is not fair to just give me mine highlighted and not the other side so I routinely get those from some of the attorneys.

You don’t need to do that because as Eric said you know you have we have access to obviously into the file and we look at the case and then you have a question you can always go to the events what is it that happened I have a lot of things that, one lawyer says that ‘’now this is what you hired and this is why you should rose in my favor and then other lawyers says “you know this is what you heard and all this” it makes hard sometimes where I go on into some of the events and what happens but I am not a fan and I involve one judge in our County and one of the lawyer was telling me that clerk refuses to take a notebook and offered a courtesy notebook and a coordinator put her note and this is paperless and we cannot take any paper we can get any notebooks or anything so I don’t subscribe to that philosophy, because every now and then I freely confess you that I have object-oriented turned the thing you know instead off went through 40, 50 page brief whatever the you can traveling there ever I like to an review that but the big advantage now I have got a laptop I haven’t with me, is that I can be here the Eyman last night it went to my inaudible and and see there is anything falling on a lot of orders lot of orders junctions or serving hearing all days different things that comes in daily and before if I can came over here for seminar for a few days or whatever I will be the behind I got back you know all resorts and now you can big advantage you can look at your queue you can actually rule and you can be outside the office and you rule so if question anybody else? Please Rebecca.

2nd Speaker: Rebecca: “with respect to TRO’s because it last couldn’t thing because I have found in filing a, file the TRO and your weighing because it’s file you received that it’s been filed and accepted but then you contact a post office then it’s not there, is there any way to speed up the process or and..

1st Speaker: do you have your mic on their? Ok, you can honor let the Clerk address and then I am you practice what I do when I lawyer tells me this not like I mentioned the actually printout and go walk it over to the court coordinator or the court administrator so a because of the timing of those particular documents that’s what we do until we get a law of electronic transmission of the queues and everything that the procedure and Cambon County as far will go I think I will I have to deferred to him and see how they handle them over there I’m going to tell you this is my clerk signs here at Kent address how they handle it over there but I can tell you how it works in practice with me and attorneys there sitting sitting in the lobby or se sitting in the courtroom I had one last time the first Monday of the month and they are actually sitting over there and I was going through my documents say her name on the list on the cases and I finally asked my bail and so and so she has a case here because it’s not on the document or she has filed a temporary training order trying to restrain for a closure sale it was on their and then I went to my queue it wasn’t on there either and then I told my staff and tell her check with the clerks you know and better used to check with the clerks and when we tell our clerks there is an emergency restraining order or there is an emergency hearing then located where is it you know it in your queue? Did you send it to us? Is it still over there at the main courthouse because that’s the other somewhat have disadvantage there is lot of advantage that I have got my own building its annex one block away from the courthouse so there is lot of advantage I don’t think it’s necessary to discuss here but one of the disadvantages is filed over there than it will take a while two or three days to get to me and I am only one block away you know, so I think we straighten that out sometimes it has to be there to give a number see a cause number before I were talking in the old days as you know they always have the file with the pre-printed number and it was random you couldn’t decide what court was case going to fall in urinal for foreign shopping and some lawyers still try to get away that by having three pleadings and fowling once and if it’s fell in that quote then we are not going to get that judge we don’t want but anyway you know they have to assign it a number before it gets to my court you know that the district Clerks office you know when you file it and then once it gets a number and all that and and falls in my court then forwarded the electronically forward it the kids sitting in my court and then they need to all administrative stuff to the put in the lawyer for put in all that stuff site appears in the docket and then what they do when it’s ready with all the attachments and the Senate to my court’s coordinators queue, and then my coordinator has to look at them do some administrative stuff and then she sends it to my queue so what that’s where the delays are and unfortunately sometimes the attorneys will electronically file all are important document restraining order and they tell me don’t judge it when it’s been filed in all the stuff electronically filed it but there was a problem of okay they didn’t accept it for some reason and I in what your careful reading to on paper made and prepare and staff and its attached to your material, it gives you some of the wording about accepting rejecting view and all that. We pretty much straightened up the issues you know the young lady the once I find out that’s what she is here for and I basically tell my

lawyers look don’t sit in a corner room for three or four hours and entertaining as some of the arguments are I know you’re having an emergency okay so just go over to my staff and we will track it down for you will find it where it is so we had had much of an issue anymore for the restraining orders in the emergency hearings so is that answers to your question little bit. Anybody else I know you all have was you have any comments in the back to you are very welcome when I asked you I had to move and said the Jennifer because you’re so I thought you’re going to slug me and then don’t shoot the message I will just ask is it very funny.

Laughing at the back

3rd Speaker: inaudible, TRO and this is Aldo County inaudible, sometimes it takes an hour to sign, you don’t know what to do.

1st Speaker: I know you have the problem with this now the question is consented about to TROs and Aldo County, that’s where I am judging in any County.

3rd Speaker: you know I was trying in court

1st Speaker: right

3rd Speaker: is that concerned Jeff mentioned, all the inaudible you know open it up, so from

*Inaudible.

1st Speaker: right, I think until we resolve all the glitches, you know because there are some you know I still have an electric typewriter in my office okay I know you are all laughing and smiling but I used it because sometimes you know Eldo counties sometimes there is a juries crying and there is few tears the electricity goes off you know you know you have this issue flooding and all that they are working on it and happens you know that says your computer goes off and you have nothing you know I used electric typewriter to in order to send something in emergency if you don’t have any power to have so I still have that I sent a memo to one of the other my colleague judge and they said: “what did you use to type this?” I don’t think they had those things anymore what is to have electric typewriter in our office but it is better or it is worse now previously because.

3rd Speaker: decide everything it to be used there, as for the change inaudible

1st Speaker: I guess if there is an emergency the best thing is to call the district clerk give them the animal number “hey this is emergency can you handle it”.

3rd Speaker: that’s all you have?

1st Speaker: we have time for one more question; I’m looking at this in about 30 seconds left.

4th Speaker: inaudible, they were talking earlier about playing an audible for in some regions in the mentioned three of the fourth inaudible that they are asking to file a one in the you will and then each exam in ABC individually, so the courts wants same plan for the references. I have followed by an article you know the problem is rules required the exit is to attach a motion corporate by reference. And that’s what I am afraid to separate things individually is that the considerable option we have.

1st Speaker: okay, but the concern for me because by the time I received it I have all all the attachments, so it’s really I think Eric needs to address that.

5th Speaker: that was the more of the singular and exhibits were not incorporate it within your motion and they are actually separate documents, but if you have your motion and everything within one single image than go in and put that in there and make sure that exhibits are within them actual motions. I was more talking about when they had the attachments or exhibits as different files that can run over hundred pages or whatever and it does separate put him as lead documents the same and left and if you are incorporated and it will be just one league document the main issue is you put them as attachments once you are in the middle like in a electronic world you cannot there isn’t so much off its incorporative within their because West see our case management system and from the part of it you’ll see the motion and then the relations and then you’ll see all that stuff is part of the initial motion.

1st Speaker: thank you very much, for the opportunity be here to discuss these questions was you we are going to be around for the part of the day so you all have anything you want to ask us privately and you didn’t want to bring it up in front of everybody, I will be happy to address, I appreciated you, thank you.

Clapping from audience

6th Speaker: I will tell you that Texan I have been doing evidence law and case law updates from longtime effect we started out doing this when they were younger man, I was at Windows Turley office and he was over at Frank Branson office. So we were kind of brand ex to each other you know and we use to get a long pretty wow, we had a great time given these presentations and my boss given me instructions that I can’t make text looks too good because it’s starts going over to Brandon’s office and then Turley’s office. So one day we were asked to do a presentation because we have been doing it so often they got invited to the women forum and get off the case update together, and so we were there pending an brand-new case out of USA Supreme Court and you know audience for on fire, they were asking questions and everything was great and they were just asking about the about one case that was a four four decision. What was a 44 decision? One of the justices couldn’t make it which one? And you know text was tumble so I flipped him a note Sndre De’Connor. Sndre De’Connor why couldn’t she be there? So I flipped him a note and he read it and he read it. She was making coffee for the other justices woman’s day for inaudible. You know march right of the door you decided to join forces rather then the rivals from that day forward. I’m one talk to a little bit about, a number of cases let me start with the evidence of update from 1952. In 1952 Enray Kings state that how you review judgments in that decisions the Texas Supreme Court that you review it under the note evidence review, what is this means? That there can be at least some evidence you know, the only way you’re going to overturn it if there was a quote “no evidence support the judgment”, no evidence is what they decided to make it the more recently in 2005 the Texas Supreme Court reverse it out. It said “there is a new court, no evidence summary judgment” that is verdict review of these types of cases. What is happen and in Keller was there was a water flowing from property that post property from Wilson’s property and because of the city’s development in that area the water would flow and determined that there is $200,000 damaged done to Wilson’s property. Wilson had an expert who testified about the nature of this damage, the city also had it on sets of experts who said there and that are so. The Texas supreme court in reviewing it decided that they really did not like the credibility of Wilson’s expert testimony and said “they don’t like it, we don’t find it to be a quality the particularly care for therefore the new standard is going to be reviewed upon no evidence that he finds to be off the quality that we like is the new standard. Now I can go back tell you what it happened. Erne King state was cited 8150 before you ever got to Keller vs Wilson. There were 54 Supreme Court decisions associated with this type of review but all of that got changed in 2005 with this quality of evidence that Supreme Court is going to look at with regard to look at no evidence standard. Let’s talk a little bit about how to preserve an objection and what do you do along those lines. Let’s first talk about SCI vs Guerra. In this particular case SCI had had moved a body, they moved it without permission they need to make room for new space by the way what they needed to do, and so what they did is they got an old body out and they got bulldozer and they unburied it they moved it down the road and family will rather upset about this and had said “look we really are angry we want to file a lawsuit ability to present certain evidence at the time of trial and one of the pieces of that evidence they wanted to do is to show the SCI has done this in the past and in the wanted to admit evidence of prior lawsuits and they wanted to admit citations were this had happened and of course SCI did not want that into evidence so they find motion inluminy* and motion inluminy heard but not really ruled upon, then it got to Verdure and during Verdure the points of attorney had started mentioning about this prior cases and then it got to be in the end of evidence cells and defense attorney stood up and objected and said: “it’s not fair that you allow this evidence in and the plan council said “it was waved” and the reason why it was waved you didn’t object when I was talking about in verdure and you didn’t object about when I was talking about an opening. The court decided in this case not waved and the reason why it was not waved is because Verdure and opening argument is not in evidence and since it’s not evidence you need it waved it under those circumstances, its kind of a curious decision. Let’s talk little bit more about waver and what you need to do along those lines.

The case of KIA motors versus Ruiz it’s kind of interesting there was the limnie to keep out the whole bunch of information associated with the manufacture of this particular and how it was put together the defendant in that case filed the motion in limini and had filed it under a motion in limini and also a rule 103 motion to strike the wave that the motion was titled. The judge had granted the motion in limini but then when it got to be the time of trial place the place attorney went ahead and admitted it anyway. I mean he went ahead and did it and there was no objection from the other side and went up unappealing was it waved the court said “it was not waved and the reason why it was not waved it is because they had filed a rule 103 motion to strike”. Now, how many of you filed your motion in limins and call it a motion in limini. Stop it, call it motion in limini and motion to strike under rule 103 if you file it as such using those magic words you have

Preserved objections that you raised in your motion is limini according to this case. If you just do it as motion in limini you have not preserved it. The reasoning that the court says when court hears objection out of presence of Jury such subjections applied to the evidence without the necessity of repeating those objections under rule 103. So, what is the feds say that about this. In micro chemical Inc the fifth circuit basically finds the same thing. So longer you file your motion as everyone 103 you have preserved your objections it does not requires you to continually make the objection over and over again and you have preserved it if you find it under rule 103. Now let’s talk about policemen and the opinions.

Austin versus Wims is pretty interesting case but the cop was investigating this particular accident was going to render his opinions. What happened was Austin gotten drunk the night before in fact it was actually the morning, that’s 2 o’clock in the morning you know just loud so he was walk a crossed the street to his car because the parking lot for the bar was across the street. So he walks across the street got in his car and just passes out okay, next morning he gets up and he decides to back to the bar and so is walking back across the street there and sure enough along comes Wims in his truck and smack into the pedestrian and he passes away. It took 13 years to try this case 30years to try this case even started going on appeal process and you hear the rest of story. There was a fact whether it is man on the road or beside the road the cop was involved in this case has said it is his opinion based upon the an audible* in that area upon the fact that he reviews that this was all pedestrian’s fault that it wasn’t the truck driver’s fault that was involved. The cop said ” he had gotten over a hundred accidents to investigate that he had more than 28 years on the force, he has no experience with accidents reconstructions, never took a class under any circumstances, you think the opinion comes in or not? Comes in. And the reason why it comes in because of his experience in this area he felt like ** he was an accident Reconstructionist and this really wasn’t some evidence that requires measurements and cross sectors and things like that and so as a result the allowed testimony to be allowed and as a result the planted lost the case.

Let’s see about the next case, this is the Calley case. Mr. Vargas was killed on I-20 on being the rear ended and pushed into oncoming traffic when he was hit by a tour bus. The cop had testified even though he had no experience in accident reconstruction whatsoever. The court said “you know, so badly should not allow this testimony in, because this did requires some experts testimony along the lines of accident Reconstructionist but you know what they think the verdict will allow the same way so that her slide. Is basically what the court decided that case.

Anis versus Don Brook, this is deals with choice of law where is the agreement are what law its going to be decided under the agreement in this particular case have said “the Texas should be choice of law should be the agreement said it right in there. It was cited in Taxes, it was created in Texas although the trial court decide it should be ruled under the California law. Now tell you the California law was much more favorable to the point of Texas law where we are dealing with here is an employee dispute under the contract, so the trial judge

Obviously wanted to give the best break for they could for the point of but the court of appeals said “now the choice of law is based upon the facts of that particular contract and effects of that contract and the facts of that contract said Texas.

Now let’s talk about little bit about tomatoes, Williams Farms Producer versus our RNG producer case. What happened in this case the buyer had failed to pay for tomatoes, now what the question was, was this a case that should be tried in the state of Texas or not because there was some admit evidence admitted that defendant company was actually South Carolina Corporation and the evidence wanted to be that it was South Carolina Corporation and as a result shouldn’t be tried in the Texas court. How did the approved that, well they went online and printed out for this information from the state of South Carolina that the defendant was an LLC incorporated under South Carolina law and the admitted it without anybody having really authenticated the said some printouts found from

official website for the state of South Carolina and here are some law suits by the way that says “they had made their South Carolina Corporation, you think its immiscible Yep it’s immiscible Those are self authenticating and as a result they are immiscible under those circumstances.

Let me talk to you about Otego versus Cock, this deals with a agile question when you file your affidavit that proof of records are the affidavit themselves immiscible or is it just the records that are behind it and the answer is while the affidavits are not immiscible, affidavits of a records cause study under is not immiscible because they are hearsay and said that they have no basis in court for whatsoever even though they are making certain emissions along those lines but the documents that are attached to it those are immiscible.

Alright the next cases Texas DPS, and Texas DPS there is a DWI arrest under the police investigation in reports, and what it happens that the police officers when the get done arresting someone and making his arrest he was supposed to attest to his place report, he was supposed to sign off on it and he was supposed to say yep this is my police report and I attest to it. He did not attest to it, he never swore to it, it’s still immiscible yes it is, it’s still immiscible even though he had not attested to it because it was made in normal course of business but it was clear that it was in the normal course of business that it was immiscible.

Next case deals with the size of a house. This particular house was supposed to be a certain number of feet. Come to find—it was represented by the seller to be a certain number of feet. The seller’s agents represent it as so, the buyer’s agent represented it as so. When they bought the house and come to find out was 700 feet smaller than what it was supposed to be. The question here was can you admit the appraisal printout of how many square feet it is. In other words that the official governmental agency that is supposed to measure houses and figure out how big they are for taxing purposes, is that immiscible? Now you remember that other decision that said “you know, just printing out something and you can admit it because it comes from a government agency, that’s okay” this court said that “no, it is not immiscible”. Why is that? because records from a taxing authority from the appraisal district are not trustworthy. So apparently all these state agencies are trustworthy but the appraisal district, well they are not.

Let’s talk a little bit about spoliation; there are a bunch of new cases along these lines. The Brookshire cases are perhaps the most telling of them all. What it happened in this case was a slip and fall had occurred and as a result of slip and fall the plaintiff was injured. There was a videotape of the incident itself. There is a videotape of the plaintiff walking in and the plaintiff falling and the plaintiff after the incident had occurred. Well you know, come to find out what Brookshire have done is that they have been asking the hold off all this particular videotapes, well you know the one showing the fall got taped over. Now the one him walking, well that was just fine and dandy and the one afterwards that was just all fine and dandy too but the one in between that actually showed the fall “oops! we destroyed that particular one, I am very sorry”. The plaintiff wanted to have an instruction that said “presume that this evidence is against Brookshires because they are the ones who destroyed it. The Texas Supreme Court said “nope, you don’t get that instruction” why don’t you get that instruction, because there was no evidence that Brookshire had intentionally destroyed that particular document or that particular video. In other words, “oops” rule is in effect for the Supreme Court. All you have to say is “oops, I am sorry! I didn’t intend to destroy that particular piece of evidence”, it gets worse.

Petroleum Solutions v. Head; Head had owned a company that was on truck stop. They had asked petroleum solutions to put in valves in this particular truck stop so that it could store diesel fuel and then get it to the pump when they needed to. Of course the dang thing didn’t work too well and there was a lawsuit that followed surrounding it. During the time that the repairs were being made, they dug a hole, they got the valves and sure enough Head had asked petroleum solutions to hold on to the valves so that they could be examined for later determination. Well, petroleum solutions did removed the valves and then they send them to their own expert. They send them to their expert who did destructive testing, who examined it quite thoroughly, and who put it in his storage room and then moved and forget to bring the valves with him. And so as a result the valves were destroyed. Now, in this case the plaintiff could not even sue the valve manufacture. Why is that? Because we don’t know who it is. Why is that? Because the valves are gone. Well what you do we do under these circumstances well “oops, we did not mean to destroy those valves that’s okay” but they go on a little bit further and they say “well you’re going to have proven what you would have proved with the valves” and they said “we don’t know who the valves manufacturer is” well do you have proof that the valve would tell you who the manufacturer is? “No we don’t have the valves, I don’t know” and they say “I’m sorry; you are not entitled to an instruction”.

So, let me give you an idea, I have a piece of paper in my hand and I am going to throw it away, oops there it goes, and what did it say? I don’t know. Well I can’t prove what it said, well, I’m sorry you’re not allowed to admit anything about that then under those circumstances because you cannot prove it? Let me try that again for you under the Texas Supreme Court ruling. I have a piece of paper, oops I threw it away, I know what was on that piece of paper, well you don’t get to admit that, you already know what’s on that piece of paper. That’s the way these Supreme Court rulings have been decided. So, as long as you have “oops” in the front of it then they get to destroy it, everybody with me?

Now, how do you get evidence of intent? “Sir, did you intend to destroy that evidence?” “Yes”. How many of you got that case? All right, let me just spoil your day further.

The Wackenhut case is similar to these other decisions that we have. This was a bus car wreck case, bus slams into the back of the car and you know what? There is videotape on the bus, well, guess what happened to video tape? Oops, it was gone. Alright, so what must be shown in this particular case? So what must be shown is what was on the videotape and the plaintiff makes the point. How do we know it is our video, we can’t prove that unless we have the videotape and the Texas Supreme Court says “I’m sorry you are going to have to prove that before you are going to get an instructional along the lines of spoliation”. Okay, brightened your all’s day, didn’t it? Well I brightened up the defendant’s day I guess. How many have you had a case where the plaintiff spoliated evidence? One, God bless you! We’ll see what happens? Would you appeal that for me? Let’s see what the Texas Supreme Court does with that one, long time ago, damn it!

Alright so, let’s talk about a little bit about TXI transport.

GMC Yukon v. the Gravel truck; the defendant had hired in this case an illegal alien. They had, the illegal alien had had a false Social Security number. I don’t mean to say somebody else’s, I’m talking about a made up one, okay. Plaintiff in that case said “there was negligent hiring, this guy should be on the road, he should not be in the country. It is illegal to hire this man as a result it should not—you negligently hired him”. What the Texas Supreme Court decided in that case was the evidence of illegal immigration is not admissible, is not admissible. It’s not relevant to any of the facts of the case. Even though the plaintiff is alleging that he should not be in the country, shouldn’t be on the road and never should have been hired because that what the law require. Let’s see what happens when we go to the other side of that issue.

Republic Waste Services Ltd v. Martinez; the plaintiffs are illegal aliens now. They are changing the tire on the side of the road, along comes the defendant that kills them. Okay, that comes off of the side of the road, really liability and non-dispute. Wipes these folks out and sure enough the plaintiff were illegal aliens. Admissible? Yes that’s admissible, because they are the plaintiff you see. And the reason why that is admissible is because well you know if there were deported that would affect their future loss of earning capacity and so as a result it is admissible if you are plaintiff. Let me do that that rule for you again if your plaintiff illegal immigration is admissible if your defendant it is not, any further questions about that? Okay.

 

Let’s talk about In Re: The Estate of Araguz; this is a very interesting case. How many of you will believe which way same sex marriage turned out in the state of Texas. I bet you all never even heard of this case, this is a fascinating case. So, Thomas was a fireman okay and he is involved in saving people’s lives and sure enough he dies in the course of his business, he dies in a fire trying to save other people’s lives is what happened. Now, he was married to Nikki and he left behind a will and he said Nikki is the one who should get all of my stuff because Nikki is my spouse, alright. What comes to find out Nikki has not always been Nikki; Nikki was born Joshua and Nikki from the age of four has always felt that Nikki was a girl even though Nikki was born Joshua and Joshua had male parts. Let me do that again, Nikki has got male parts, Okay! Everybody with me? But Nikki thinks that Nikki is a girl. You all with me? Lots of evidence to the effect that Nikki thinks that Nikki is a girl even though Nikki has male parts. Here is a interesting twist at this, Nikki and Thomas got married and after they got married. Nikki had a sex change operation, had all the parts changed. Thomas testified in another unrelated matter before he died that he did not know that it happened. I am going to say that again. There was a sex change during the marriage and he did not know that it happened. In fact, he had never known ever in his entire life that Nikki was Joshua or that Nikki had ever had male parts what so ever, wow! Okay. So mama of Thomas the descendent files a law suit saying “hey hey hey wait a minute, I get the money not Nikki because same sex marriage is illegal in the state of Texas” and litigation in sue. It goes up to the court of appeals after trial. Guess which way the Court of Appeals decides it. They say “gender is a state of mind and as a result Nikki is a girl and Thomas was married to Nikki and that is a boy and a girl and that is okay”. Now, listen you I do a lot of propone work as you probably already heard not—you know I am involved in a lot of this type of litigation and you know at first I bemoaned to the fact that this decision was made the way they didn’t have the courage to come out and do the same sex marriage you know lets decide this under same sex marriage you know lets just decide this same sex marriage lets have this issue decided along those lines but you know upon retrospect, what do you think the Texas Supreme Court would have decided in the end. I thought that the Corporis Christie Court of Appeals actually was quite courageous along these lines because they did the right thing for Nikki under these circumstances. That’s out of time, thank you so much!

[Clapping from the audience]

law topic that is important and often times misunderstood as Rebecca said I am also the county attorney Bosky County, I have a part-time family law practice so I sometimes speaks at TDCAA functions as a prosecutor then I get to do family law topics to so this is kind of fun for me to do day for you all. Sometimes it’s clear that something has been done to the community property. How to play that? I am not sure, can you click that for me? Can you double click on it? Nope it’s not going to work, okay well sometimes it’s clear these were some funny outtakes from divorce courts which I like to watch because its kind of show you the tow pro say party is kind of going at it and basically it showed kind of some stellar got your group back situations where people burning the property in the front yard and and these days weren’t afraid to deny that it happened. And so sometimes you will know exactly what’s happened to the community property but some sometimes you won’t and when it’s not clear what has happened to the community property you have to ask yourself what can the court do?

Well first, the court always recognizes that there is a fiduciary duty or basically a confidential relationship within the marriage and when there is a confidential relationship that fiduciary duty arises and the courtroom need to look at whether there has been a breach of that material duty so it’s similar to a trusty and a beneficiary situation. I think when we are married we often times don’t think about that fiduciary duty but that it’s very important and when there is a breach of the fiduciary duty it’s termed a fraud on the community and there is a two types of frauds most of them that you are familiar with will be actual fraud which involves the intentional misrepresentations. Actual frauds not and often asserted in divorce cases because it’s harder to prove. I have several cases because I do live in such a rural community, my home is in Meridian it’s Bosky County, I live in cram folds gap Texas which is population 291 and so I have lots of—my fraud cases involves stuff with livestock and things of that nature, big real estate transactions on this big ranches that are out there and so sometimes it’s easy for me to spot the actual fraud. Constructive fraud on the other hand changes the burden of proof and I think that’s important and I don’t think sometimes when we go in to try a family law case, we don’t think about the burden of proof we always assume it’s ours burden so we just start “blah blah blah” you know kind of diarrhea of the mouth so to speak when we get up there thinking it’s our burden and sometimes we need to sit back and relax because it’s not our burden and if it’s actual fraud, the spouse alleging the fraud has the burden of proof. When it’s constructive we don’t have the burden of proof, okay that’s switched it, all you have to is allege that there were some transfers that were made and that they were not fair in the presumption of construction fraud be waste that will arise when the one spouse disposes of the other party’s interest in their community property. There is two big cases that we are going to talk about today, the first one is Puntarelli v. Peterson and it’s kind of one of the cases that dictates constructive fraud. In this case it was out of Houston and Judge Bonnie Helm was presiding in it and asked, the wife asked “where did all the money that my husband earned, where did it go?” and the wife was awarded $196000 judgment for wasting community funds because the husband could not account for how he spend his significant income during the five years of their informal marriage and the divorce case was pending. The important holding from the case was that the wife did not have to prove any specific and proper transfers of community funds, so this is important. She didn’t even have to show evidence that there were specific transfers, she just had to show that the husband’s expenses were much less than his income and the burden shifted to the husband to show where the money went.

So I think that’s kind of important because again we think it’s our burden to dig through all this discovery and figure out where it went when really you just have to allege it, and if you alleged it then throw it back on the other party and let them show where it went. This case is really a good one to use when you are trying to show constructive fraud and get the court to rule in your favor.

How to prove the constructive fraud? Well the factors that the court considers, there is four main factors and you need to plead these and you need to allege these when you’re doing your arguments in the court. First the relationship between the spouse and recipient, again I have told you it’s a fiduciary duty you need to play that up to the court and let them know how important this is that there was trust factor that was there that should have been honored. Second the size of gift or transfer in relationship to the total size of the community estate. Now again I told you I deal with the lot of live stocks, lot of ranches and lot of things like that. I also deal with the lot of Corporations, where there is like say a sell barn or a company where may be the dad owns part of it, the brother owns part of it and they are like moving assets you know around to try to get them out of marriage relationship and so, there is a lot of times a gift or a transfer that you could look at there to see if its important on proving you constructive fraud case and the adequacy of the estate remaining in spite of the gift, if its insignificant gift you know you may not want to fight this fight but if it’s not and you think that there is any chance that your client could be awarded a disproportionate share of the community, you definitely need to plead it.

Finally, any special justifying factors for the gift or transfer; sometimes it may have been they were paying back a family loan or something to that affect. So kind of dig in to just a little bit. Now this is the case you’re going to see the most of the time when you’re talking about community fraud and waste of assets and it’s the Schlueter case. The Schlueter case answered the question of what remedies are available to a spouse alleging fraud on the community that is committed by the other spouse and what happened in this case, it was a very insignificant amount of money. It was $3250 basically but the court didn’t think it was so insignificant and it ends up coming back on the husband until they got to the Supreme Court. Basically the husband invested $3250 of community funds in Amy’s. He later sold his interest in business for $1000 to his father and it was worth $10000. Shortly before the divorce the husband gave the father a $30,360 check the husband received from his employer for over retirement. When he filed for divorce a week later the wife counter claimed and at the time of trial the wife has started claims of actual fraud, breach of fiduciary duty, conspiracy, things that you typically allege in a divorce and it was basically a—for transferring the $30000 worth of assets.

What happened at the trial court level? The Trial court heard the divorce without a Jury and divided the Meritor of estate and rendered judgment on the Jury verdict against the husband and father jointly in severely for the $12,850 but the trial court also awarded the wife $30000 and $15000 in exemplary damages against the husband and father. Trial court awarded the wife $18,500 against husband for attorney’s fees on appeal. Here is how it ended up in the Supreme Court when it went through the court of appeals and got to the Supreme Court. A money judgment can be awarded to recoup the value of his or her share of community lost through the wrong doers actions but can never be more than the total value of the community estate and that’s because Texas has the presumptions that all community property should be divided 50/50 and so when there is a disproportion share of community you can do that but you can’t also get a sort of Tort claim on top of that which is what the trial court in Schlueter had done. So the Schlueter court stated that wrong spouse should not suffer just because it’s time to divide the community but the other spouses depleaded the state that there is not enough money or property left for Just and Right Division but the redress for actual construction fraud is the same but the heightened capability of actual fraud may be considered by the trial court in evaluating the reconstituted state, Okay. So we are going to explain how that works in the real world in just a minute when I give you a trial scenario but what is the family code say?

Well based on Schlueter, it kind of convoluted a bunch of things within a Texas family law court at the court of appeals until they got up to the Supreme Court and so the legislator wanted to say “we need a statue that figures this out let’s try to practitioners not how to reach Schlueter because it’s so confusing but basically let us put it in a codified form in Texas family court 7.009, which is fraud on the community, division and disposition of the reconstituted state.

Well this section was designed to provide courts that encounter acts that constitute fraud, a procedure for correcting the fraud. This is going to be the main statue that you need to refer to if you are arguing any sort of fraud on the community. Basically it insures that there is consistency across the estate with regarding how community assets be divided when there is a fraud. So the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred.

Alright, here how it works in the real world. Assume the current value of community state is $400,000 at the time of divorce and the court finds that the wife committed constructive fraud in the amount of $60,000 in the amount of community. The reconstituted state is then worth $460,000, so what can the Judge do if he finds that that is the case. There are three things that the Judge could do. One, he can award the husband more than 50% of the community estate while pretending the wife still has the $60,000 which will result in more real assets being awarded to the husband, okay that’s kind of typical scenario where you what the judge will do. Two, you can get a judgment against the wife for some fair portion of $60k but the wife wasted community funds and she also wasted money that belong to her as well. So he would not get a judgment for $60,000, what would she get a judgment for? $30,000, that is her community in half. That his community and just half. I think sometimes I am also a mediator, I do tons and tons of the mediation and when I am talking to a family law attorneys and I am doing a mediation I think sometimes we forget that its only half that we get and so our values somehow get off when we start talking about it and so just always remember when you are pleading this that you are only getting half and explain that to your client because sometimes I don’t think that comes across. They think they should get all of it because of the wrong doing, award both of money judgment and disproportionate share of the community estate to the husband. Now, I don’t know about what you all experience here but our judges where I live will do very very little over a 50/50 division and it has to be—I mean an affair doesn’t matter you pretty much just have to be really really really shady to get a disproportionate share. In our county, I have found that the most of the Judge will do is a like 55/45 type of division and that’s if you work super super hard to plead it. And sometimes what they will do those judgments but it’s hard to get that done so you really need to get your arguments ready if you are going to make these kinds of things.

Third party claims, now sometimes like in my practice a lot of time there is a dad or a mom that is involved in the fraud because for some reason husbands and wives think if they just give to somebody in their family that can hide it, it’s not going to ever get found and so the case law that supports kind of digging out this and getting to the bottom of it is

Maze v. Stuart and basically it’s claims for breach of fiduciary by spouses can also be fraud against third parties and in that case the former wife brought an action against the former husband and his friend for fraud with regards to some lottery tickets that he gave to his friend and kind of told him to hold on to while he was getting divorce. If an asset is transferred while the divorce is pending, the Texas family code protects the third-party from and best assured his or her interest in asset and alleging spouse bears the burden of proving that the third-party had notice of the managing spouse’s intent to injure the rights of other spouse.

Okay, well you can see here again where the burden shifts. So we have got actual fraud, it is my burden, constructive fraud is there burden, third-party claims, it’s my burden. So think about those kinds of things when you are pleading all this and you’re going through your discovery because you need to know what kind of evidence you are going to need to flush out in order to get this proved. There is double recovery again; this is again the theory in Schlueter and that was that the court cannot award a double recovery. Basically for Tort damages when there is a disproportion at division of the estate. Disproportionate divisions of community estate and award for fraud can be contained in the same judgment but the record has to reflect evidence to support a disproportion division of the community estate on the grounds other than the fraudulent transfer.

I think, sometimes we needs to consider this too when we are drafting our divorce decrees and how we are going to word that judgment in there so that you protect yourself on appeal. I’ve attacked some divorce decrees that you know it’s kind of like that, putting a lien on somebody’s homestead as an alter lien and it’s not their homestead or it wasn’t a community property but the lawyer on the other side just went ahead and moved forward even though that it wasn’t a valid judgment lien on the homestead or on that property. I think you need to be careful how you draft this to show it’s a judgment for the fraud. It’s a judgment separate in a part from just the equitable 50/50 division.

Now, this can also be used in factors for spousal maintenance. How many of you have trouble getting spousal maintenance where you live? Any of you all? We do, I do, and our judges just hardly will do it. So they kind of want ever—they will maintain status close so to speak but it’s not in the form of spousal maintenance, it will be the husband needs to pay the bills until we go to final hearing or and so they wont really call it spousal maintenance.

Well I think if you are at a temporary orders hearing which is a lot of times when you are going to get this and you start alleging fraud and you can throw enough factors in there for the court to look at you might can get that temporary spousal maintenances established before you go to final, and the factors that you can look at is that the court can determine whether the spouse is eligible to receive the maintenance and determine the nature and amount of duration, manner of periodic payments, you know the factors. But here are the two things that you want to point out to the court. That there is an ach by either spouse that resulted in excessive or abnormal expenditures or distraction concealment or fraudulent disposition of community property.

Okay, and the marital misconduct which includes the adulterine court treatment but it could also be that breach of fiduciary duty. Now, I don’t know about you all but when I am—we live in such a rural county and there is only fifteen lawyers that are there, I’m the youngest so whenever I start pleading my divorce cases, I don’t want to come out of the box with really mean and hateful pleadings. I don’t know about you all but I just don’t do that. But then the problem by not doing that is you can come back later and you might forget to plead something that you needed to plead in you didn’t amend your pleadings on time. That goes kind of to my next slide is when in doubt” plead plead plead” you can always call opposing council and say “hey I didn’t really, I’ve just thrown all this out there, I think there has been some shenanigans that have gone on during the marriage but hopefully we can still work this out”. Because, I think if you don’t start out strong and then go to temporary orders with these kinds of things already resonating in the judge’s mind about what’s happened you don’t want to forget about it in the end. So, fraud in the divorce context again is ever evolving even with Schlueter on the books and the victimized spouse in that case really wasn’t made whole and we were stagnant kind of after Schlueter because nobody knew what to do, it wasn’t—you couldn’t have a Tort claim but you also didn’t really get all of the—I guess punishment for the fraud. 7.009 gives the court and spouses an actual statute with guidance on quantifying the fraud but the statute should allow for more recoveries for spouses who have been victimized by fraud that were perpetrated by the other spouse.

So, fraud is the factor again in determining spousal maintenance. You can also sue a third party, bring them into the case just remember again who has the burden of proof. But when in doubt “plead plead plead” because every cause of action that you can get your client to recover the most community money the better off that you are going to be and like I said call the other side, tell him what’s going on, tell him what you think has happened and hopefully they’ll kind of know where you are going down the path as far as whether it’s going to be aggressive divorce of whether it’s not.

But I think the most important part that I learned when I was preparing for this speech today too was the burden, because I know my discovery request always change based on when I have the burden and when I don’t have burden and sometimes I don’t want my discovery request to give the other side an opportunity to prepare too much. Does that make sense? Like you don’t want to be asking for stuff and making it, you don’t want to be doing their work for them essentially and so really think about who has got the burden and which time you are hitting the ping pong ball over the net, whose turn is this to hit it back. Without those little divorce court clips then I am kind of little short but if you have any questions I’ll be glad to take questions or if not I’ll give you all little bit time to get ahead of schedule.

 

Audience: I’ve a question; given everything you’ve said and the terrible duties that fiduciaries undertake when they become fiduciaries, why would a more productive person ever want to marry a person who is not productive?

That’s the truth, well you know you get those questions a lot like I have a lot of stay at home Moms and so to speak and that’s that “I have been staying at home and I’ve been working and he has committed fraud on the community by, I never know where money went, I don’t know who paid the bill”. Now, if I died my husband would know who had the electricity bill, you know what would happen to any of our bills. Everything would shut down but there are some of those cases that you get like that and that’s kind of what when I have the husband’s that’s what they say. Why I’ve been working all this time and how this community when she just stayed at home.

 

8tAudiencwe: Well this not my question, my question is a legal question which is why would you ever want a voluntarily undertake a fiduciary duty to somebody when you know that you are going to be the primarily productive person and what’s the reason legally why you’d want to do that? Why don’t you just want to go [inaudible]

The legal reason?

Audience: Yeah because I think there is a legal reason.

So, I guess it is just love, yeah, our passion, there you go. Did you have any question? Okay I thought you were raising your hand. Alright, well Rebecca then gets ahead of schedule a little bit. Thank you very much.

As now I said with Den Navarro Ruche Bernardo Hsian and Zack our name is getting really long so now I just say Den Navarro and everybody knows what I am talking about. Our clientele is almost exclusively local government lenities, mainly cities. In fact if you file a law suit against the city here in the rear grand valley there is pretty good chance that you saw us on the other side and so the Tort claims act is bread and butter statute for us. It is used in you know just about every law suit that we defend file against the city. And, the—we get to mix of plaintiffs who— a mix of types of plaintiff’s attorney who file a claim against us that it involves Tort claims acts. On the one hand there’ll be an attorney who is used to filing law suits against this government lenities and so is very familiar with it and its going to anticipate all the defenses we are going to raise that arise out of the application of the Tort claims act and the other side is the attorney who may only occasionally take a claim against a government lenity and so won’t be familiar. And in dealing with this mix of levels of expertise on the Tort claims act we have—I have come to under there really isn’t a whole lot of clarity even among the people who deal with a lot even on the defensive side like us about exactly how it applies? When it applies? What happens when it does apply and what happen when it does not apply in terms of the picture of whether or not the courts are going have subject matter jurisdiction of the claim.

So, because I only have 30 min today to present on this topic, it’s very comprehensive topic. It could take an entire day really but the time dictates that I give you kind of a more nuts and bolts type of presentation on the Tort claims act so that’s what you are going to get, the last half of my presentation I hope to get a little more in depth into one area practices that seems to be lately probably the most complex in application of the Tort claims act and that is the application of the election of remedies provision that comes under 101, 106. So, you’ll hear me talking more about that and probably than anything else.

Just to get started, just so everybody knows what we are talking about. Where you can find the Texas Tort claims act, well it is right here in chapter 101 of the Texas Civil practice and remedies code.

[Ubaid]

And which contains the entirety of the application of Texas Tort claims act of claims brought against government lenities. So is that enough? Can just read chapter 101, read all its provisions and know what you’re dealing with. I don’t think so, it’s important to know what it means to be included within the Tort claims act, it’s important to understand a little bit of a background on a—what happens when a claim is covered and when a claims is not covered. What does the immunity picture look in those situations and of course to understand why there is even such a thing as a Tort claims act, it’s important to understand this concept of sovereign immunity. Now I mentioned getting a mix of responses to our assertions of of defenses under the tort claims act and lot of time we will see even from—from attorneys who are well versed in it, this notion or this underlying assumption that—that the tort claims act is a source of immunity. That the tort claims act is what’s presenting is what preventing law suits from going forward against the government lenities. If you are- if you have been on the other side of our firm and if you handled a number of cases against us and you feel Den Navarro, they are always filing immunities pleads and they are always citing the tort claims act.

You might get the impression that the tort claims act is itself a source of—of a wall between your plaintiff’s recovery and-between your plaintiff and -and ultimate recovery. In reality the tort claim—you also might hear a lot of speakers talking about the tort claims act in terms of whether or not it’s a sword or a shield that-that sword shield rubric is used a lot in terms of describing tort claims act.

The source of immunity lies outside the tort claims act, it’s actually of common-law doctrine an age old common-law doctrine. Sovereign immunity—I have a general description of what it is here

“Unless waived, protects the state or Texas, its agencies and its officials from law suits for damages, absent legislative consent to sue the state”

And if- if you read through any other cases that deal with tort claims act or the sovereign immunity, you will see the courts often referred to this notion that it encompasses two principles; immunity from suit and immunity from liability. The tort claims act covers both of those concepts but want one of them is more important than the other and for the purpose of whether or not the court has subject matter jurisdiction.

Immunity from suit; the first concept the first half of the sovereign immunity picture has a certain elements to it that make it differ from immunity from liability, it’s jurisdictional, it’s non-waivable. It impacts the court’s subject matter jurisdictions. If the defendant is immune then the court has no subject manager jurisdiction and that lawsuit can never go forward. It prohibits suit even when liability is not disputed I have here even when liability is not disputed it is probably more correct to say even when liability is not disputed either in terms of immunity or via admissions, it simply does not matter the liability picture simply does not matter when you’re talking about immunity from suit. The courts maybe raise it at any time. anyone familiar with the doctrine of immunity from suit—this is going to be familiar with that concept. The idea that—subject matter jurisdiction can never be presumed and cannot be waived.

On the other hand immunity from liability is more in the-nature of an affirmative defense, has to be pleaded or else it is waived, it does not impact the court’s restrictions and so for the tort claims act to effectively address—the tort claims act effectively addresses both halves of that pictures but you’ll see it must often applied when a governmental offender is attempting to have your case dismissed on the subject matter jurisdictions grounds because of the effect that it has on sovereign immunity—I am sorry on immunity from suits.

Again it’s a common law doctrine, it is not a creature of statute. The legislature jealously guards the-the immunity of the state and its subdivisions and its agents. In fact there is specific statute that covers what statutory language needs to look like before it can effectively waive the government’s immunity. You will find that in the government court. It is not in the tort claims act it’s part of the court construction act and the legislature has established very stringent requirements on statutory waivers of sovereign immunity. There has to be clear and ambiguous language that permits the lawsuits to go forward against the government or against the state or political subdivisions. Without that there is no immunity and there’s been a lot of analysis and a lot case law and some pretty recent case law that analyzes whether or not statute meets this requirements, none of those have to deal with the tort claims act of course because the tort claims act is very clearly a clear and an ambiguous waiver of sovereign immunity that permits certain lawsuits to go forward against government lenities.

So how does it do that? How does it affect the immunity picture?

Well, remember immunity encompasses two concepts so it has to address both and it does it this way and you will notice I’m not starting with the first section of chapter 101. You will have to go through the chapter little bit and you have to kind of bounce around to figure out how the immunity picture develops as you move through the tort claims act. The first and I think most important element here is of course going to send around the immunity from suit and whether or not the court has subject matter jurisdiction over your claims. The tort claims act clearly and unambiguously waives immunity and permits a law suit against the governmental lenity by waiving the immunity from suit but only to the extent that the government is liable as provided by the act. So therefore the tort claims act is addressing both halves and making them essentially one and the same. If there is a waiver of immunity from liability then there’s a corresponding and equal waiver of immunity from suits.

So the next question then you have to ask is well how does and till what extent does a tort claims act waive immunity from liability. Well it’s all contained right here under 101, 102 notice that you have to back up a few statutes—that is what it meant by, you have to kind of bounce around little bit in the chapter to get the full picture. Here is the extent to which the tort claims act waives immunity from liability and correspondingly also waives immunity from suits. Claims involving property damage, personal injury and death caused by the negligence of governmental employees and personal injury and death caused by condition of tangible personal poverty or real property. That’s it, those two things, those two types of claims are the claims that are encompassed in the way of immunity under the tort claims act. Your standard, curious liability respond at superior employee, negligence claim and basically a premises defect claim, premises liability claim. Those are—that is it.

The next half or deeper in to the to the analysis of the extent to which immunity from liability is waived and also immunity from suit is waived comes in the form the damage cap provision of 023 and it sets up 4 if you count an ESD which is included in this unit of local government here. But basically 3 standards 3 caps that govern immunity if it is suit against the state, you have the $250-$500 per incident—sorry per person per per occurrence, injury caps there $100,000 for property damage for other units of local governments which will include counties, emergency services districts, it’s a little bit less and for cities for cities have the same level of liability as the state $250-$500, $100,000 for property damage.

No exemplary damages permitted at all, there is no waiver of immunity from liability and therefore no waiver of immunity from suit for any claim regarding exemplary damages for anyone of the cases that would be allowed under the tort claims act.

Alright, now there are also certain exclusions and I won’t spend a whole lot of time on this because you can find in these in the statutes and they are pretty self-explanatory. There are 1 or 2 in here that are more often sided and more contentious than others but basically the—and right here exceptions to the exceptions because remember what I was saying earlier that the tort claims act is not the source of immunity -immunity existed common-law the tort claims act is the exception to immunity, the tort claims act provides a path way for plaintiff to seek relief in court against the government lenity.

So if a subject matter area here is excluded from the tort claims act, what does that mean? Well, that means that the tort claims act no longer provides that avenue to the courthouse. Does that mean that the liability or that immunity rather is preserved? Well it may and it may not depending on whether or not there are other sources of waivers of immunity existing in common-law or existing in statute.

The tort claims act is certainly not the only statute that waives the immunity, just probably the most famous. And so there are number of subject matter areas here that are claims that involve the subject matter are not covered by the tort claims act, so if you are going to find a waiver of immunity at all, you are going to have to look elsewhere.

Anything involving the legislature courts, state military personnel, school districts only have the motor vehicle provisions apply to them so there is a waiver involving school districts but for a more limited subset of claims, then would be encompassed by the entirety of the act.

Anything involving collection of taxes, this one is here is a response to an emergency that is not made with conscious and reckless disregard for the safety of others, that’s a big one there. It is one of the very hotly contested exclusions from the tort claims act because it presents a situation that arises a lot specially with municipalities that have—they employ a lot of first responders like policemen and firemen.

It’s such a comprehensive subject matter that I couldn’t hope to do a justice today so I am just lumping in here with the list of exclusions. If I get invited back next year, I will do a topic just on this side along because really it could take 2-3 hours just on that and the list goes on and on. Now, this one a big here, I have all of these listed on this one slide probably not as big as the emergency exception but basically these exclusions have all have to do with the big damage or destruction of a traffic or road controlled device. Basically there is a standard here that requires that the government respond within a reasonable time to its awareness of the absence or malfunction or destruction of a traffic control device. Otherwise there is no waiver of liability and no waiver from immunity from suit. There’s an exclusion of course applies to warrant of the special defects. I call it here the exception to the exception to the exception which again shows, how convoluted the path can sometimes be towards figuring out whether or not a claim is one that can be brought or not. Intentional torts, that is an easy one, those are not covered by the tort claims act so again you have got to find a source of waiver outside the act. I can tell you that there is none. Other than for what might fall into the ultra vires category. The article that I prepared for the seminar deals much more deeply into the ultra vires type of claims, again it is a pretty broad comprehensive subject, could not hope to cover it in a half hour period. But maybe in another seminar, I might be able to.

This one still in the statute here, computer date failure; this has to do of course with the Y2K. I do not know that anyone is dealing with anymore but anyway, it would have been excluded had anyone filed a lawsuit over. Now I have a special section here, just dealing with municipalities, again this is the area of this law that our firm is most involved in and the reason for that is that municipalities traditionally have enjoyed a lot fewer immunities and a lot less protection against lawsuits than the states or agents of the state or even political subdivisions like counties and the reason for that—and it goes back a long way, the cases going all the way back to the 1880s. The reason for that is that the courts have traditionally viewed only some of the functions that municipalities perform as being truly governmental in nature and the others being more kin to what a private Corporation would do for its clientele or for its customers.

They were always treated differently at common-law and the tort claims act addresses that difference by providing a special -special distinction between the functions—being cases that arise under the functions that might be considered governmental or proprietary. Now governmental functions, the governmental functions, you can see the laundry list there are 36 specific governmental functions listed in the tort claims act under 101-0215. It is not intended to be an exhaustive list. The statute very clearly says it’s an included but not limited to standard but it covers pretty much everything that you would expect to be a normal city function. Police and fire, street construction, street maintenance, garbage, water and sewers, parks, public transportation, pretty much anything that cities normally do is now encompassed by virtue of legislative action under the governmental functions of the tort claims act.

Now that list of governmental functions doesn’t necessary comport with the traditional judicial view of what was a governmental versus a proprietary function. That tradition view again from cases going all the way back to the 1880s possibly earlier, typically would make the distinction along the lines, if it was a function that was enjoined upon the city by state law that city didn’t have any discretion whether or not to do these kind of things than those would be governmental function.

If on the other hand the function was something that the city voluntarily took that was intended primarily for the benefits of the city residents and not for the general public at large then that was considered proprietary but as you look through that laundry list of governmental functions, you’ll see that a lot of those really might fall into that second category and might have common-law be considered proprietary, it is legislature that is chosen to tag them as being governmental in nature. Just unilaterally and by virtue of the language that it is chosen in the act and so if you take something like parks for example, there is no law that city has to have a park and if a city does have a park like many cities do, they are probably going to be generally used by the residents in the city and probably not very many other people. So right away you can see that under that common-law view that might more appropriately be considered to be a proprietary function. Well it is specifically listed under those governmental function so therefore any claims arising out of some kind of injury or something having do with the park is going to be a governmental function for this for a municipality and municipality is going to be entitled to the protections in terms of the damage caps and the analysis of whether or not the claim is covered by the tort claims act in terms of presenting an immunity picture and challenging the lawsuit by way of a plea.

The proprietor functions; the act doesn’t apply to those but the waiver immunity may lay outside the act and for cities and you would simply resort to the common-law nonexistence of sovereign immunity for proprietary function. So really it’s not waiver immunity, it’s a situation where immunity never existed to begin with based again on age old common-law doctrine that separates cities out from the state and the state’s arms in terms of whether or not those entities enjoy sovereign immunity.

See I have got about 10 minutes left which is probably just enough time to cover this last topic that I talked—that I mentioned that I would cover in more specific detail. Again this is probably an area that provides the most in terms of procedural wrangling between plaintiffs and defendants and the governmental entities that are asserting immunity on behalf of individual employees being sued and then the entity itself being sued.

The act provides an entire section that has this six sub parts, four are listed here that give the plaintiff a choice of basically an election on who to see, who do I attempt to get recovery against on any particular claim of injury that involves—and this doesn’t only imply to the cities, this involves any governmental entity covered by the act. Now, as we will see later as I talk about some of the cases that choice may or may not be a real one depending on the nature of the claim and so these first four subdivisions here and I am just paraphrasing the language of the statute of the subsections A-D but basically the election is—the procedure is set up this way. If you have filed a suit against the government and we are talking about the mere act of filing here, we are not talking about carrying the suit all the way through to the conclusion. A mere act of filing, it solidifies the election for the plaintiff. Filing suit against the government bars any suits against the individual employee for the same subject matter. So if we have an incident and you’re going to—you initially have the choice “am I going to sue the enmployee for his own negligence” which by the way is still available even after the imposition of tort claims act. Employees of governmental entities can always be—employees of employers can also can always be liable for their own negligence it doesn’t have to be a vicarious liability suit but again there are going to be some exceptions to that that I talk about later that arise under the Supreme Court’s treatment of this election process.

Second step here is if you bring suit against the employee, that bars suit against the governmental entity. If you elect to proceed against the individual, then you may not proceed against the government employer. Settlement of a lawsuit under the tort claims act meaning one that is encompassed by the act bars suit against the employee and a judgment against the employee bars suit against the governmental unit. So those four steps are there’s not really a whole lot of case law or controversy on how to apply those. Where the controversy comes in is in the application of next two provisions, the next two subdivisions. E; talks about a situation where a lawsuit is filed against both the employee and the governmental unit and the statute uses this language if the suit is filed under this chapter against both employee and employer, the employee shall immediately be dismissed upon a motion by the government. The city or the County or whoever you are suing in that case would file a motion saying you must—the court must dismiss the individual employee was is also being named and also been alleged to be a tort [inaudible] in this law suit. It is mandatory, the court has to do it.

Now the reason I am highlighting or quoting under this chapter is because this language here is what is caused—I think the most difficult among the courts of appeals, the Supreme Court doesn’t seem to have any difficulty in deciding what that means but the courts of appeals have and the so that’s this part that I want to talk about the most. The next provision here says “if suit is filed against the employee but the suit alleges conduct that is within the general scope of employment and if the lawsuit could have been brought under this chapter and again that phrase is used then the suit is considered to be an official capacity suit. Now why does that make a difference? Well, if a lawsuit against an individual and against accepting the ultra vires doctrine, a law suit against the individual is considered in every way other than in name to be a lawsuit against the governmental employer. It seeks to impose liability against the employer even though the employee in his official capacity is named.

Now the official capacity versus individual capacity, distinction is what is being talked about here, individual capacity obviously that is the person’s on liability, the person’s own negligence. This is not the same thing, official capacity basically means an attempt to impose liability against the governmental employer.

So—so there have been a couple of cases, really important cases, not starting in 2008 but 2008 I think is the beginning point for a real discussion about how this process is going to be applied and the next time the Supreme Court took this up in a real significant way in this 2011 in this Frankovi Vilaskez case. Now under the mission, the CISD analysis, the first case, the 2008 case, basically the Supreme Court is saying that under this chapter basically means any tort theory. The issue there was a lawsuit–basically it was an employee asserting a number of causes of action against the school district for what essentially amounted to a wrongful termination case.

And so right away you can tell if you are talking about wrongful termination then we are probably not talking about a traditional tort claims against the government in the sense that you might think. It is probably not good involved in the some tangible personal properties it’s not involving personal injury troubling not going to involve the use of tangible personal property, it is not going to involve personal injury, probably not going to involve a motor vehicle. We are talking about a decision, we are talking an employer decisions that the employee is claiming was wrongful or illegal or discriminatory.

And so that was the nature of Garcia’s claim in that case. So what Garcia asserted was these claims are not claims under this chapter. Therefore, the tort claims act doesn’t limit this lawsuit in any way. The Supreme Court says “no that is not what it mean, what it means is any tort theory is assumed to be under this chapter so unintentional tort, that we know is excluded from coverage by the tort claims act, any negligent misrepresentation case that doesn’t involve tangible personal property or a motor vehicle. Those cases would not—you wouldn’t consider them to be under the tort claims act because the tort claims act specifically excludes them. Well the Supreme Court is saying “those are claims under the act because they are torts against the government. The only kinds of cases that Supreme Court in mission CISD basically excluded from this phrase under this chapter are claims that are brought pursuant to waivers of sovereign immunity that exist apart from the tort claims act. I mentioned that the plaintiff in that case has asserted essentially employment discrimination type case. While there is another law that also clearly and unambiguously waives sovereign immunity for school districts and that is the Texas commission on human rights act, chapter 21 of the labor code which essentially incorporates the kind of anti-discrimination mandates that exist in title 7 and some other things as well and so the Court sidestepped the issue somewhat of whether or not all lawsuits against the governmental entity are basically covered under the act by saying well if there is a waiver that exist outside the tort claim act then that wouldn’t be a claim considered to be under this chapter and so the plaintiff’s lawsuit against the school under the and the individual under the chapter 21, employment discrimination theories were allowed to go forward, everything else was dismissed under the tort claims act.

Got a couple of minutes left, so the case presents I think some important consequences and some important choices for plaintiff. Dismissal of the employee in that case remember I talked about the election of remedy procedure mandates dismissal when your claim is against the employee and the employer files the necessary motion. If the dismissal of the employee—gets the employee out and the only remaining claims are claims that are not in covered in the waiver under the tort claims act then basically that leaves with only claims for which there is no waiver.

So now your individual defendant is gone and you cannot sue the governmental entity because the governmental entity retains sovereign immunity from the claims that are not—for which immunity is not waived under the tort claims act. So you have got a jurisdictional dismissal requirement against both halves of your claim. That is the consequence I think for the plaintiff of mission CISD case and so it is really important to consider basically the nature of the claim, whether or not it is going to be the one that can lie against the employer under the tort claims act or whether you will have to look really hard for waive of immunity residing outside of tort claims act to go against the individual or the employer on that bases.

There is another important discussion in here which basically—what the court is saying if the suit is under E which is the situation where you are suing both the individual and the employer at the same time, that is also a suit under B where you are suing a governmental entity by itself. In other words the court is saying it is not an either or proposition. You don’t pick one of the elections of remedy provisions and that is the only one that applies. If you are applying—if you file a suit against the governmental entity and the employee it is also considered to be a suit under B against the employee. So there is pretention implication for a waiver or a bar there that you may not intend by choosing to sue both at the same time. I am running out of time here, the bottom line is the upshot is “don’t limit yourself to the concept that I am brining a tort claim that is not covered by the act and therefore I don’t have to worry about the election of remedy process. The important thing coming from the Supreme Court in all of those cases is that any tort claim you bring against the governmental entity is considered to be under the act so you have to pay particular attention to the application of 101 and 106 and that election of remedy practice in order to make sure you get it right.

Thank you very much!

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Francisco Hernandez

Author Francisco Hernandez

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