PAID. Clem Lyons Citizen s Arrest Under Texas Law Scruples: How Do Paralegals Remain Ethical? Juneteenth: A Personal Connection.

Transcription

1 May - June 2008 Clem Lyons Citizen s Arrest Under Texas Law Scruples: How Do Paralegals Remain Ethical? Juneteenth: A Personal Connection PRST STD US POSTAGE PAID PERMIT 324 SAN ANTONIO T E X A S

2 San Antonio Lawyer 2 May-June 2008

3 6 May-June 08 Features Departments 6 Clarence Clem Lyons By Pat Maloney, Jr. 8 The Right to Effect a Citizen s Arrest Under Texas Law By Simon Azar-Farr 13 Scruples: How Do Paralegals Remain Ethical? By Ellen Lockwood 14 Juneteenth: A Personal Connection By Joe Hely Chair s Corner 2020 Foresight: The Future of SABF By Renée F. McElhaney 17 Fourth Court Update: Recent Cases By Justice Catherine Stone 18 Book review: Cartographia By Paul Russo Stone 20 Federal Court Update By Hon. Nancy Stein Nowak and Nissa M. Dunn On the Cover: Photo of Clarence Clem Lyons by Hugh Leighton McWilliams Photography. San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address above. Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to kimp@sabar.org. Copyright 2008 San Antonio Bar Association. All rights reserved San Antonio Lawyer 3 May-June 2008

4 Moore 1\8 Page Ad 11/22/07 4:37 PM Page 1 Lawyer San Antonio The San Antonio Bar Association 100 Dolorosa, San Antonio, Texas Fax: Officers/Directors President Allan K. DuBois President-Elect Victor H. Negrón, Jr. Vice President James C. Woo Directors Malinda A. Gaul Diana M. Geis Jim Greenfield Charles E. Hardy Secretary Justice Phylis J. Speedlin Treasurer Gary W. Hutton Immediate Past President Lamont A. Jefferson Telephone (830) Facsimile ( 830 ) Small, Jeff Ad 11/26/07 wdmoorelaw@aol.com 7:00 PM Page 1 Andrew L. Kerr Thomas g. Keyser Justice Rebecca Simmons David B. West W. DAVID MOORE ATTORNEY AT LAW 19 YEARS OF COMMERCIAL LITIGATION EXPERIENCE STATEWIDE PRACTICE TORT DEFENSE CONTRACT LITIGATION. INJUNCTIONS STAFF LEASING COMPLEX LITIGATION IN STATE AND FEDERAL COURT The Law Office W. David Moore 115 Canyon Circle Boerne, TX Mexican American Bar Association Clarissa Benavides San Antonio Young Lawyers Association David M. Evans Bexar County Women s Bar Association Lisa S. Barkley San Antonio Bar Foundation Renée F. McElhaney State Bar of Texas Directors Van G. Hilley Lamont A. Jefferson Executive Director Jimmy Allison San Antonio Black Lawyers Association Stephanie R. Boyd Editors Editor in Chief Hon. Barbara Nellermoe Articles Editor Sara Murray Managing Editor Kim Palmer Departments Editor Leslie Sara Hyman Board of Editors Hon. Barbara Hanson Nellermoe, Chair Patrick H. Autry Donald S. Bayne Bradford Bullock Charlie Butts Barry H. Beer Priscilla Camacho Paul T. Curl Antoinette Delgado Jason D. Goff Stephen H. Gordon Per Hardy Sam Houston Leslie Sara Hyman Julie Koppenheffer Rob Loree Ed Marvin Jamie McKey Amy McLin Hugh L. McWilliams Joby J. Mills Sara Murray Curt Moy Rob Ramsey Marc E. Rietvelt Art Rossi Adrian Spears, II Regina Stone-Harris Brent T. Sykora Johnny Thomas Judith K. Wemmert Nationwide Publishing SA 1922 Great Ridge, San Antonio, TX (210) Fax: (210) Publisher - Ron L. Hogue rlhogue1222@satx.rr.com Layout by Kim Palmer Managing Editor, San Antonio Bar Association Law Office of Jeff Small Appeals Briefed/Argued Error Preservation Dispositive Motions Original Proceedings Jury Charges Research Flexible Arrangements (Hourly, Contingency, Flat Fee) Not certified by the Texas Board of Legal Specialization Civil Appeals Litigation Support Appellate Mediation jdslaw@satx.rr.com f: San Antonio Lawyer 4 May-June 2008

5 2020 Foresight: The Future of the SABF By Renée F. McElhaney T he bar year marks the 25th anniversary of the San Antonio Bar Foundation. And over these past years, the Foundation has evolved into a dynamic organization with 500+ distinguished Fellows, including over 140 Life Fellows and over 75 Sustaining Life Fellows. In 1984, the founders of the Foundation charged this organization with a broad mission: to promote justice through educational and charitable activities. Putting those words into action, we have developed a strong footprint in the Bexar County community. We partner with the Bexar County Dispute Resolution Center to help sponsor the Amigos in Mediation Peer Mediation Program ( AIM ). The AIM program builds peer mediation programs in schools all over Bexar County. Thousands of students have been trained to resolve conflicts without resorting to anger and violence. We are very proud that the Foundation has played an integral role in growing a culture of peace among the children of San Antonio. And because of that impact, many of us in the Foundation view our support of AIM as a bedrock project of the Foundation. We also support the monthly Wills Clinic, partnering with the Bexar County Women s Bar Association. We honor peacemakers in our community through the Peacemaker Awards, presented recently on March 29 th at the Peacemaker Awards Gala. We offer practical legal information to Bexar County residents through our People s Law School, with the integral help of the St. Mary s University School of Law. We provide funding for several of Sister Grace Walle s programs, which introduce law students to the philanthropic aspect of our profession. We stage the Fun Run with the Police Athletic League, which fosters a positive relationship between law enforcement and the legal community. And we raise money through dues, through Fun Run, through charitable giving by members of the Bar, and through the Peacemakers Gala. We are not, however, raising money for its own sake. Since 1998, the Foundation has consciously focused on growing the corpus of the Foundation s trust. The goal is to reach $1 million by Back in 1998, the leadership of the Foundation realized that we cannot truly serve the legal community and the broader community unless we have a solid income base. For most philanthropic organizations, that base is a significant corpus from which interest income can be generated. So the Foundation set its sights on building that kind of corpus. Under the steady leadership of Sara Dysart, Michael Black, Diann Bartek, Jill Torbert, Tom Vietch, Abigail Kampmann, Laurie Weiss, Joe Casseb, and Jo Chris Lopez, we have plodded our way to building our resources to over $750,000 from around $100,000 in That is a tribute to the generosity of the legal community and individuals like you. After this year s Peacemakers Gala, we will likely be very close to the $850,000 mark, which is the direct result of your generosity and the amazing dedication of the Peacemakers Committee, including Elizabeth Martin and Lee Cusenbary. We are in sight of our $1 million goal. It is now time for us to begin planning for the future, so that we can expand our impact and serve more of the legal community and Bexar County. With that in mind, the Foundation is assembling a Blue Ribbon Committee to build a long-term plan for the Foundation from 2011 forward. We need to do some soul searching about what the Foundation s goals and priorities should be once we have that established income. Do we grow our support of AIM to enable more children to learn conflict resolution skills? Do we develop a program to assist lawyers and other legal professionals who are suffering from stress, anxiety, or chemical-dependence? Do we create scholarships at law schools to encourage law students to enter public service? Do we help fund more pro bono projects? To get the most out of this planning process, we need to hear from every corner of the legal community. We want you to join us in this process. First, if you are not a Fellow of the Foundation, would you consider joining forces and becoming a member? If you are interested in becoming part of the Foundation (which requires an annual commitment of $150 dues for 10 years), please contact us. Second, we want your thoughts on the Foundation s future. Do you see a need the Foundation might be wellsuited to address? Do you think the Foundation should focus more of its attention on the legal community rather than the broader community of Bexar County? How can we solidify the image and mission of the Foundation in the minds of you, our members, and the community at large? Let us know your thoughts. And, finally, if you would like to have direct input to the Blue Ribbon Committee as a member of or resource for the committee, let us know that too. Here s the pertinent contact information: You can call or me. My direct line is , and my is rmcelhaney@coxsmith.com. Incoming chair, Gilbert Vara, is another great contact. Gilbert s phone number is , and his is gvara@arielhouse.com. We are a great team the San Antonio legal community and its Bar Foundation. We have built a strong legacy of service and celebrated those who foster peace. We have worked hard to be in striking distance of our $1 million goal for our trust s corpus. We look forward to the next phase of the Foundation s development when we will have a broader impact on our community and serve our membership in fulfilling the true calling of noble lawyers. Renée F. McElhaney is Chair of the San Antonio Bar Foundation and chairs the Appellate Practice Group of Cox Smith Matthews Incorporated. Chair s Corner San Antonio Lawyer 5 May-June 2008

6 Clarence Clem Lyons By Pat Maloney, Jr. There are, at this writing, nearly 75,000 lawyers in this State. What is it that makes Clem unique and worthy of praise? Why will he be such a tough act to follow? How did he come to the pinnacle of his profession as a respected trial lawyer? Perhaps these few remarks will help answer those rhetorical inquiries: Born on the wrong side of Long Island, New York, Clem missed out on the wealth and privilege that are so often inferred when we hear of that venue. Fatherless at age 12, he assumed a supporting role of his mother, brother and two sisters. The War was on when his dad died, and jobs for 12 year olds were scarce and menial. Added to this misery was the way his father died; a hospital worker; he was struck down by tuberculosis. Clem learned a painful but valuable lesson for a 12 year old when he accompanied his grieving mother to a Workers Benefit Hearing. Her pleas for assistance would go unheard and unheeded. Clem learned early on that the system could be unfair, and that victims need someone to speak up for them. A pharmacist, familiar with the plight of the Irish family, took pity upon them and hired Clem to learn that profession. As was later to be the case with law, Clem learned pharmacy with alacrity and became one of the youngest licensed pharmacists in New York State, at age 23. The Korean War called upon Clem s intense sense of patriotism, and he enlisted in the Army, eschewing the certainty of a commission which would have been his for the asking. His military career brought him to San Antonio, and upon his Honorable Discharge, he found employment at a westside San Antonio pharmacy. Although Clem did well for himself and his family as a licensed pharmacist, he never lost his fascination for the law, nor his deep desire to reverse the injustice he had witnessed as a 12-year-old boy by using his law degree to ensure that the rights of the powerless were vindicated. Shortly after he matriculated at St. Mary s University, Clem came to be sharply criticized by the school administration for his extra-curricular activities in politics; he refused to desist from his fight for the underprivileged and minority members of society. Instead, he increased his activism. The issue nearly came to blows when it was strongly suggested that he abandon his politics and spend more time in his law studies. With his like hell I will attitude which came to be his mantra as a lawyer Clem vowed to complain to the Veterans Administration to cease funding for the veterans at the law school if what he perceived as political oppression was not ceased. The law school backed down. Thus, Clem won his first case even before he graduated law school. Upon graduating from law school, Clem knew he wanted to be a trial lawyer. Like many young aspiring trial lawyers, he went to work at the District Attorney s Office to try cases. He carved out a remarkable and envious reputation as a lawyer who could win lawsuits. He was now a trial lawyer. Not to be denied his penchant for politics, Clem s candidacy for the State Legislature wound up on the cutting room floor, and it became obvious that he was wasting his time not trying cases. Like most young trial lawyers, Clem tried cases for any client who walked in the door, ranging from DWI s, Workers Compensation cases, and even cases for some ladies of the night. But he knew his medical background was not being properly used in litigation. In those days, very few lawyers were willing to pursue medical malpractice cases. Rarely were such cases won, but Clem was not easily discouraged. He decided the time was ripe for litigation to right the wrongs of the social morass he perceived in Texas. And right the wrongs he did, indeed! He proudly accepted the sobriquet trial lawyer and traveled the state trying medical malpractice cases for the plaintiff. We all know that the mark of a good lawyer is not how many cases you have won, but rather how many cases you have tried tried to verdict, whether favorable or unfavorable; tried throughout the appellate process; and tried even though adversaries categorized them as unwinnable. Clem is as willing to discuss his losses for worthy clients as he San Antonio Lawyer 6 May-June 2008

7 is to speak of the plethora of million-dollar-plus verdicts he obtained. It is well worth a trip to the courthouse to watch Clem in action. His trial technique is to plan, prepare, and present a medical case with the same precision and perfection as the healthcare defendants claimed they employed with their patients. He often lost; but when he won, he won big. The reader should not infer from this that Clem is a braggart, blustering his way to victory. To the contrary, he is always a gentleman, a professional and ethically motivated barrister, regarded by both bench and bar with awe and admiration. One wonders at the many tales of Clem s courtroom prowess, and it is difficult to sum up the lawyer within. Perhaps one of his most recent experiences explains the main with better clarity than can this poor scrivener. At the onset of a complicated and involved medical malpractice case, Clem walked up to the special counsel whom the Defendant s insurer had hired to try the case a specialist who had been flown in at considerable expense from north Texas. Clem, with his usual Irish good graces and professional demeanor, introduced himself to counsel, and was interrupted in a conversation that went something like this: Hello, I m Clem Lyons, and we haven t met, I... Yea, well my name is suchand-such, and I want you to know that I am a trial lawyer; do you know what that means? It means I try cases. That s all I have been hired to do, and that s all I do. Try cases. So don t try to talk to me about settlement, or talk to me about anything other than trying this case. That is what I have been hired to do. You need to understand that. Keep that in mind and we will get along fine; try to butter me up or talk about settlement, and you ll be sorry... and by the way, our offer is zero, zilch, nada, nothing... you get that, Mr. whatever your name is. Well, thank you, Sir. It s a pleasure to meet you, and I m sure I will learn much about trials from you during the course of this case. Harrumph. Thirteen millions dollars later, with a unanimous jury verdict for the plaintiff, Clem says he completed his legal education as a trial lawyer; thanks in large part to this adversary. The stories of Clem s love of Ireland and his retreat on Dingle Bay; his devotion to Stephanie, the love of his life; his three children; his feel for yellow dog politics; his zeal for the causes of the underdog; and his love of a wee jar every now and then, are legion. Clem is truly a Renaissance man who is equally comfortable discussing philosophy and world politics as he is talking about complicated medical malpractice issues. The San Antonio Trial Lawyers Association recently established a Pat Maloney, Sr. Courage Award. Clem was the natural and deserving recipient of that honor. During the award ceremony at the SATLA luncheon, Judge Andy Mireles summed up Clem s reputation as a trial lawyer: When he walks into a courtroom, the Judge knows Clem s word is gold a true advocate who can always be trusted. One would think Clem Lyons, at age 76, has nothing left to prove in the courtroom; and he certainly doesn t. But when Clem hears the plight of an aggrieved client, he still feels compelled to enter the fray, never forgetting his roots. As you are reading this article, Clem is doing what he does best, trying a medical malpractice case in the Valley. While there is no guarantee he will win the case, it is a certainty that the client will be represented by a great trial lawyer. Stephanie and Clem Lyons Pat Maloney, Jr. received his undergraduate degree from the University of Texas in 1975, and his law degree from St. Mary s University in For over 30 years, he has been actively engaged in the practice of law with The Law Offices of Pat Maloney, P.C. San Antonio Lawyer 7 May-June 2008

8 The Right to Effect a Citizen s Arrest Under Texas Law By Simon Azar-Farr It was breezy and cool that early morning at the shooting range when my friend inquired, I still do not understand if, in Texas, a citizen has the right to effect an arrest and how? I was enjoying the breeze, touching my Winchester romantically, and not paying my friend much heed. You are a retired judge. I suppose you are familiar with the law. Did you know the answer to your own question when you were on the bench? I inquired. Of course not; I was only a judge for crying out loud. I did not know the law then, and I still do not know the law, my friend quickly chided me. He went on, And with this new castle law going into effect, I am really confused. I think a lot of ordinary people would like to know the law of citizen s arrest in Texas. For a guy from Ohio, he seemed eager to hear an answer. So I promised him that I would answer his questions, provided he did not consider my answers legal advice. If you do not pay me for the answers, then you should not think of them as legal advice. I declared. He agreed. That goes for you, too. Now when your friends ask you about the right of a citizen to effect an arrest, you can address them with your sound thoughts. Statutory Grounding In Texas, any private citizen 1 may arrest someone without a warrant when the offense is committed in his presence, or within his view, if the offense is either a felony or an offense against the public peace. 2 The statute in its current form has changed from the laws in place nearly 140 years ago. In 1870, the Supreme Court of Texas recognized the statutory proviso allowing ordinary citizens to aid in the detection and repression of crime by becoming auxiliary peace officers, clothed with the authority to arrest, without warrant, those who commit felonies. 3 The Court implied that the Texas statute was a deviation from the common law doctrines of the time, writing that allowing citizen s arrests was an innovation upon the common law. 4 The Court approved of the legislative mandate, wisely calling it a wise provision. 5 Later that decade, the Court of Appeals of Texas affirmed the purely statutory grounding for citizen s arrests in Lacy v. State. 6 In that decision, the court first addressed the reasoning underlying the statute s passage: necessity. It wrote, It is to our minds apparent that the whole authority given to arrest without warrant is founded in the law of necessity a necessity for prompt action in order to arrest or detain the offender, so as to prevent his escape by delaying the time necessary to procure a warrant for his arrest. 7 The court then laid out three requirements for a valid citizen s arrest. First, the arrest must comply with federal and state constitutional provisions guaranteeing against unreasonable searches and seizures. 8 Second, the person sought to be arrested [must] commit [ ] an offence classed as a felony or as an offence against the public peace. 9 Finally, the offence must have been committed in [the citizen s] presence, or within his view. 10 The statutory language and the requirements for a valid citizen s arrest remain little changed from these early cases. 11 Offense Committed in Citizen s Presence or View This requirement seems fairly straightforward. In Texas, the right of a private individual to arrest someone is limited to the time the offense is committed or while there is continuing danger of its renewal. 12 In other words, a private person may make a citizen s arrest only at the time he sees the actual offense being committed; he may not later pursue a guilty party in order to apprehend him for the police. 13 An offense is deemed to have been committed in a person s presence when any of the senses afford an awareness of its occurrence. 14 Courts generally interpret this requirement narrowly. The statute is not satisfied unless the offense is committed while the citizen and criminal share the same scene. For example, in Satterwhite v. State, 15 the citizen observed a breach of the peace, but rather than make an arrest at the scene of the crime, he left to engage a deputy police officer. The court ruled that the five-minute interval destroyed the citizen s ability to make an arrest without a warrant and the subsequent arrest was illegal. 16 In Lacy v. State, 17 the court held that a person passing through the country who possessed a horse believed to be stolen, which constituted a felony, could not be arrested by another without a warrant where the arresting person did not see the offense committed. 18 In Henderson v. United States Fidelity & Guaranty Co., 19 the court likewise held illegal, under the predecessor to the modern-day statute, a citizen s arrest made by two bank directors who failed to witness the actual bank robbery. 20 In Johnson v. State, 21 the citizen initially, but unsuccessfully, attempted to arrest the criminals. San Antonio Lawyer 8 May-June 2008

9 He then left the scene to secure the help of a policeman. The two later found the docile criminals, who had since ceased their criminal activities, and effected an arrest. The court ruled the arrest illegal because the citizen failed to make an arrest during the original commission of the crime. 22 By contrast, in Smith v. Bryson, 23 the citizen saw an assault occur at a distance of 350 feet. 24 He immediately ran towards the assailant and arrested him. Even though the assault was complete by the time the citizen apprehended the criminal, the court found the arrest to be legal because it occurred in his presence. 25 In Turner v. State, the citizen saw the alleged criminal holding a gun and placing it in his car s glove compartment, after which the citizen placed the alleged criminal under arrest. 26 There was no intervening time between the observation of the offense and the arrest, and there was a continuing danger that the criminal would take the gun out of the glove compartment and use it. 27 The citizen was, therefore, justified in placing the criminal under a citizen s arrest. 28 In view of the new castle law allowing for the carrying of a weapon in one s car, however, the legal validity of this case may be in question. As one can see, Texas courts adhere to a common-sense approach with regards to the first requirement. As long as the citizen and criminal share the same spatial and temporal zones, any arrest should be legal, provided it comports with the other requirements. Commission of Felony or Breach Against the Public Peace One can easily dispense with the first half of this requirement since felonies are statutorily enumerated, and any criminal whose actions satisfy the statutory requirements for the commission of a felony can be arrested by a private citizen. The second half of the requirement poses a more difficult scenario. In Texas, there is no statute creating the offense of breach of the peace. 29 The common-law definition generally accepted is taken from the opinion of the Texas Court of Criminal Appeals in Woods v. State, 30 which states: The term breach of the peace is generic, and includes all violations of the public peace and order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community; a disturbance of the public tranquility by any act or conduct inciting to violence or tending to provoke or excite others to break the peace; a disturbance of public order by an act of violence or by an act likely to produce violence, or which, by causing consternation and alarm disturbs the peace and quiet of the community. By peace, as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members.... The offense may consist of acts of public turbulence or indecorum in violation of the common peace and quiet, of an invasion of the security and protection which the laws afford to every citizen, or of acts such as tend to excite violent resentment or to provoke or excite others to break the peace. Actual or threatened violence is an essential element of a breach of the peace. Either one is sufficient to constitute the offense. Accordingly, where means which cause disquiet and disorder, and which threaten danger and disaster to the community, are used, it amounts to a breach of the peace, although no actual personal violence is employed. Where the incitement of terror or fear of personal violence is a necessary element, the conduct or language of a wrongdoer must be of a character to induce such a condition in a person of ordinary firmness. 31 The determination of whether an act amounts to a breach of the peace is made on a case-by-case basis, looking to the facts and circumstances surrounding the act. 32 The majority of cases dealing with a citizen s arrest involve intoxicated persons, i.e. the offender is drunk and disorderly. 33 However, Texas courts have found a breach of the peace in less egregious circumstances. For example, the First Court of Appeals found that the failure to stop and give information after a traffic accident was a breach of the peace, given the number of traffic-related incidents that lead to violence in Harris County and because the driver s actions were likely to arouse violent resentment. 34 The same court later affirmed the ruling under similar circumstances. 35 Not all moving violations qualify as breaches of the peace. Traffic offenses such as speeding and running a red light do not constitute breaches of the peace for purposes of Article 14.01(a). 36 Nevertheless, driving into an oncoming lane and forcing cars to move to another lane to avoid a collision falls within the statute s ambit. 37 Texas courts have held that actual or threatened violence is an essential element of a breach of the peace offense; personal violence is not required. 38 The Amarillo Court of Appeals found a breach of the peace when a private citizen attempted to arrest a man he knew had committed a robbery, and the robber threw a beer bottle in his attempt to escape. 39 Violations of a community sense of order or decorum that incite violence or tend to provoke or excite others to break the peace also constitute a breach of the peace. For instance, in analyzing the circumstances of the incident, the Fort Worth Court of Appeals found a breach of the peace when a high school student extend[ed] the middle finger of his right hand to the principal of his school during commencement exercises. 40 Moreover, the Court of Appeals affirmed the warrantless arrest of a criminal engaged in loud and vociferous language or swearing or cursing in a public place... in a manner calculated to disturb the inhabitants [of a public place]. 41 Generally, carrying a handgun is a misdemeanor. 42 Nevertheless, possession of firearms in certain circumstances can constitute a breach of the peace. In Turner, the citizen saw the perpetrator holding a gun at night under suspicious circumstances. The court ruled that the perpetrator had breached the peace, stating that the sight of someone holding a handgun under these circumstances would lead one... to the conclusion that violence or danger is threatened, and would certainly induce disquiet and disorder [or] terror or fear... and threaten danger... in a person of ordinary firmness. 43 An offense that is not a breach of the peace in the abstract may become so because of the circumstances of the case. For example, criminal trespass, which normally would not qualify as a breach of the peace, contravenes Article 14.01(a) when the criminal is attempting to conceal his presence on private property during a manhunt directed against him as an armed fugitive. 44 In short, any actions taken with an eye towards causing violence, inciting public unrest, or grossly offending others will likely qualify as a breach of the public peace. Similarly, those who act negligently or recklessly in causing any of the above offenses are also likely to breach the public peace. San Antonio Lawyer 9 May-June 2008

10 Probable Cause as a Prerequisite for Arrest Texas law requires peace officers to have probable cause before making a warrantless arrest. 45 This same requirement applies to private citizens who wish to effect a warrantless arrest. 46 Probable cause has been defined as the existence of reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed an offense. 47 Article requires the suppression of any evidence flowing from a citizen s arrest made without probable cause. 48 Whether probable cause exists is determined by applying a totality-ofthe-circumstances test to each case. 49 The State bears the burden to prove the existence of probable cause to justify a warrantless arrest or search. 50 In reviewing a warrantless arrest to determine the existence of probable cause, courts will look to the facts known to the citizen at the time of the arrest. 51 Many of the citizen s arrest cases that give more than a cursory analysis of probable cause deal with the apprehension of drunk drivers and the knowledge that the citizen-onlooker would have had after viewing the criminal s actions. For example, in Miles v. State, 52 the court ruled that the private citizen, after observing the arrested party for 30 minutes and noticing a significant lack of coordination and motor skills, had probable cause to effect a warrantless arrest for driving under the influence of alcohol. 53 Similarly, the citizen in Kocurek v. State, 54 observed a driver weaving between lanes. 55 The court ruled that this observation was more than sufficient to warrant a prudent man to believe appellant had committed or was committing the offense of driving while intoxicated. 56 Private citizens are not held to a standard higher or lower than that which applies to peace officers when analyzing whether their warrantless arrests are supported by probable cause. Special Case: Theft of Property While the general citizen s arrest statute provides for apprehension in a narrow set of circumstances, other statutes permit arrest under otherwise impermissible conditions. For example, in Texas, all citizens have a right to make a warrantless arrest of a thief where the stolen property is found in the thief s possession. 57 The operative statute states: All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay. 58 The language quoted above obviates the need to prove that the felony or breach of the peace occurred within the presence of the arrestor, and it specifically states that searches and seizures must be based on reasonable grounds. 59 Just as with other statutes granting rights of arrest, this article inherently permits citizens to make 1 Neither the statue, nor the relevant case law, makes any distinction between citizens and residents of Texas as opposed to citizens and residents of other states. 2 Tex. Code Crim. Proc. Ann. art (a). The statute grants both peace officer[s] and other person[s] the same rights of warrantless arrest for the two defined categories of crimes. Id; see also Office of the Attorney General, Texas, White Opinion, Opinion No. MW-537, Dec. 22, 1987 (citing Alexander v. United States, 390 F.2d 101 (5 th Cir. 1968); Romo v. State, 577 S.W.2d 251 (Tex. Crim. App. 1979); Woods v. State, 213 S.W.2d 685 (Tex. Crim. App. 1948)) ( Any individual may make a citizen s arrest under that provision, provided that all applicable legal requirements are met. ). 3 Doughty v. State, 33 Tex. 1, 1-4 (1870). The case references, as statutory authority for citizen s arrests, articles 2677, 2678 and 2682, of the Code Cr. Proc. as published in Pas. Dig. The earliest statute I found relating to the citizen s right to make warrantless arrests comes from Article 226 of the Code Cr. Proc., passed by the Sixteenth Legislature in 1879, available at The 1879 statutory language is identical to the current language found in Article 14.01(a). You should bear in mind though that this is all after the Yankees, through reconstruction laws, limited the right of Texans to bear arms. 4 Doughty, 33 Tex. at 3. One key difference lies in the fact that, at common law, one could arrest another for a felony not committed in one s presence, if a felony had actually been committed and the citizen had probable or reasonable cause to believe that the arrested person committed the felony. See, e.g., United States v. Montos, 421 F.2d 215 (5 th Cir. 1970); see generally 6A C.J.S. Arrest 12, Arrests By Private Persons-Crime Not Committed in Arrestor s Presence. 5 Doughty, 33 Tex. at Tex. Ct. App. 403 (1879) ( It is not necessary that we go to the common law or to the decisions of the courts of other States in order to ascertain the circumstances under which a private person... may arrest for crime without warrant, for the reason that in this State the whole subject is regulated by the Constitution and the statute law. ) 7 Id. at Id. The interpretation of unreasonable seizures or searches is beyond the scope of this article. 9 Id. at Id. Technically, one can argue that there is a fourth requirement: the actual physical arrest of the supposed felon. That is, no citizen s arrest can be effected if the other s freedom of movement is not curtailed. See United States v. Mendenhall, 446 U.S. 544, 554 (1980). In Texas, an arrest occurs when a person s liberty of movement is restricted or restrained. See Kunkel v. State, 46 S.W.3d 328, (Tex. App. -- Houston [14 th Dist.] 2001, pet. ref d); Turner v. State, 901 S.W.2d 767, (Tex. App. -- Houston [14 th Dist.] 1995, pet. ref d); see also Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991); Hardinge v. State, 500 S.W.2d 870, 873 (Tex. Crim. App. 1973). In Kunkel, the court found a citizen s arrest where a wrecker was used to block a driver s car between the wrecker and the entrance gate to a town home complex. See also Miles v. State, 194 S.W.3d 523, (Tex. App. -- Houston [1 st Dist.] 2006) (use of wrecker to block escape route constitutes arrest), aff d, Nos. PD , PD , S.W.3d, 2007 WL (Tex. Crim. App. Oct. 17, 2007). In Turner, the court held that an arrest occurred when two security guards compelled all of the men to get out of the car, took the gun from the glove box, patted the men down for other weapons, took their identification, questioned them further, and called the sheriff s office. The guards then held the men there until the sheriff s deputy arrived. Turner, 901 S.W.2d at 770. In Amores, the court found appellant was arrested when the police officer blocked the appellant s car with his patrol car, pulled out his revolver, and ordered the appellant out of the car. Amores, 816 S.W.2d at 410. In Hardinge, the court held the appellant was arrested when a security guard held the appellant for the police. Hardinge, 500 S.W.2d at 873; see also Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979) (finding defendant was arrested when citizen took defendant s driver s license and held him until state trooper arrived). More detailed interpretation of the scope of arrest falls outside the scope of this article. 11 Texas courts were quick to strictly construe the requirements outlined in Lacy. Just one year later, the same court stated that, given the great respect placed on personal freedoms and liberties, the exact instrumentalities of statutes authorizing the deprivation of freedom (e.g., a statute allowing a citizen s arrest) must be evoked to effect a valid arrest. Alford v. State, 8 Tex. Ct. App. 545, (1880). While the definition of an offense against the public peace, see Tex. Code Crim. Proc. Ann. art (a), was broadened in the twentieth century, courts have consistently interpreted the other remaining requirements quite strictly. See De Leon v. State, 201 S.W.2d 816, 817 (Tex. 1947) ( The power to arrest is controlled by statute and it has never been a tendency of the court to enlarge on that power. ). 12 Woods v. State, 213 S.W.2d 685, 688 (Tex. 1948). 13 See Rodriguez v. State, 172 S.W.2d 502, 504 (Tex. 1943) ( It has been held that the right to make an arrest in cases of breaches of the peace is confined to the time of the commission of the offense. ) (citations omitted). Texas courts have also construed the statutory language to mean that private citizens may not make a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968); see also Hill v. State, 641 S.W.2d 543, 544 (Tex. Crim. App. 1982); Irvin v. State, 563 S.W.2d 920, (Tex. Crim. App. 1978); Garner v. State, 779 S.W.2d 498, 501 (Tex. App. -- Fort Worth 1989), pet. ref d, 785 S.W.2d 158 (Tex. Crim. App. 1990). 14 Clark v. State, 35 S.W.2d 420, 422 (Tex. 1931). 15 Satterwhite v. State, 17 S.W.2d 823 (Tex. 1929). 16 Id. at Lacy v. State, 7 Tex. Ct. App. 403 (1879). 18 Id. 19 Henderson v. United States Fidelity & Guaranty Co., 298 S.W. 404 (Tex. 1927). San Antonio Lawyer 10 May-June 2008

11 a search without a search warrant as long as the statutory conditions are met. 60 The Supreme Court of Texas, interpreting this statute, stated: The owner or lawful custodian of stolen property, by virtue of the rights and privileges given him, under the article above quoted, has the right to pursue the thief and recapture property which has been stolen without a warrant of arrest. 61 Just as Article 14.01(a) clothes ordinary citizens with police powers, this Article renders private person officer[s] de facto invested with all the privileges and burdened with all the penalties of an officer de jure. 62 Thus, Article can be used to save those citizen s arrests that would otherwise be illegal under Article 14.01(a). For example, the citizens in Lacy and Henderson, whose arrests were illegal when viewed solely under Article 14.01(a), did, in fact, effect proper and legal arrests under the predecessor to Article The Texas Civil Practice and Remedies Code ( TRCP ) also carries a corollary statute known as the shopkeeper s privilege. 64 This privilege states: A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property. 65 While this statute does not grant the power to arrest another citizen, it does buy time for the owner of an establishment until the police or other peace officers arrive. Thus, a store employee who had reasonable grounds to believe that a patron had shoplifted a piece of merchandise has the authority under TRCP to detain the criminal, as well as the authority to arrest him under Article Furthermore, if the employee actually witnessed the crime, provided shoplifting fits the definition of breach against the public peace, his authority to arrest the patron is augmented by Article 14.01(a). 66 Use of Force During a Citizen s Arrest Texas law 67 provides that private citizens not acting under the direction of peace officers may use force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making a lawful arrest, or to prevent or assist in preventing escape after lawful arrest. 68 However, the private citizen must, before the arrest is made, manifest his purpose to arrest and give the reason for the arrest, or he must reasonably believe that his purpose and the reason for the arrest are already known by or cannot reasonably be made known to the person to be arrested. 69 The Texas Code of Criminal Procedure Annotated, which governs the allowable use of force during an arrest, 70 does not specifically address the question of what force may be used by a private citizen making a warrantless arrest. However, one Texas court extended Article to arrests effected under Article for the recovery of stolen property. 71 The court held that the force authorized by article is the same as that provided in article 15.24, which provides that all reasonable means are permitted to be used to effect an arrest, but that no greater force shall be used than is necessary. 72 One can reasonably assume that the force used under an 20 Id. at 407. However, the court found the arrest legal under a different statute that allowed arrest for the return of property known to be stolen. Current law, under Article 18.16, permits the owner or lawful custodian of stolen property to pursue the thief and recapture property which has been stolen without a warrant of arrest. This subject will be explored in more detail infra. 21 Johnson v. State, 5 Tex. Ct. App. 43 (1878). 22 Id. at Smith v. Bryson, 33 S.W.2d 268 (Tex. 1930). 24 Id. at Id. 26 Turner, 901 S.W.2d at Id. 28 Id. 29 Henderson v. State, 600 S.W.2d 788, 789 (Tex. Crim. App. 1979) S.W.2d 685, 687 (Tex. 1948). 31 Woods, 213 S.W.2d at 687 (quoting Head v. State, 96 S.W.2d 981, 982 (Tex. 1936)). 32 Id. at 687; see also Crowley v. State, 842 S.W.2d 701, 704 (Tex. App. -- Houston [1st Dist.]), pet. ref d, 830 S.W.2d 613 (Tex. Crim. App. 1992); Estes v. State, 660 S.W.2d 873, 875 (Tex. App. -- Fort Worth 1983, pet. ref d) (both analyzing whether an offense was a breach of the peace under the attendant circumstances). 33 See, e.g., Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979) (holding that a patrol officer out of his jurisdiction was a citizen who could arrest DWI offender for breach of the peace); see also Miles v. State, 194 S.W.3d 523, 527 (Tex. App. -- Houston [1 st Dist.] 2006) (holding that driving while intoxicated is a breach of the peace), aff d, Nos. PD , PD , S.W.3d, 2007 WL (Tex. Crim. App. Oct. 17, 2007); Trent v. State, 925 S.W.2d 130, 133 (Tex. App. -- Waco 1996, no pet.) (same). 34 Crowley v. State, 842 S.W.2d 701, 704 (Tex. App. -- Houston [1 st Dist.]), pet. ref d, 830 S.W.2d 613 (Tex. Crim. App. 1992). 35 See McGuire v. State, 847 S.W.2d 684 (Tex. App. -- Houston [1 st Dist.] 1993, no pet.). 36 Perkins v. State, 812 S.W.2d 326, 329 & n.4 (Tex. Crim. App. 1991). 37 Ruiz v. State, 907 S.W.2d 600, 603 (Tex. App. -- Corpus Christi 1995, no pet.). 38 Woods, 213 S.W.2d at Knot v. State, 853 S.W.2d 802, 805 (Tex. App. -- Amarillo 1993, no pet.). 40 Estes v. State, 660 S.W.2d 873, 875 (Tex. App. -- Fort Worth 1983, pet. ref d). 41 Leache v. State, 3 S.W. 539, 546 (Tex. Ct. App. 1886). 42 Tex. Penal Code Ann Turner v. State, 901 S.W.2d 767, (Tex. App. -- Houston [14 th Dist.] 1995, pet. ref d) (citing Woods, 213 S.W.2d at 687). 44 Dunn v. State, 979 S.W.2d. 403, 408 (Tex. App. -- Amarillo 1998, pet. ref d). 45 Tex. Code Crim. Proc. Ann. art (2)-(6). 46 See Barahona v. State, No CR, 1999 WL (Tex. App. -- Houston [14 th Dist.] Dec. 9, 1999, no pet.); Rollinger v. State, No CR, 1999 WL (Tex. App. -- Dallas 1999, pet. ref d); Trent v. State, 925 S.W.2d 130 (Tex. App. -- Waco 1996, no pet.) ( the prosecution is still required to show that the private citizen had probable cause to make the arrest ); McGuire v. State, 847 S.W.2d 684, 686 (Tex. App. -- Houston [1 st Dist.] 1993, no pet.); Garner v. State, 779 S.W.2d 498, 501 (Tex. App. -- Fort Worth 1989) (holding that a private citizen must have probable cause to believe an offense is being committed in order to justify an arrest or detention), pet. ref d, 785 S.W.2d 158 (Tex. Crim. App. 1990). 47 Miles v. State, 194 S.W.3d 523, 527 (Tex. App. -- Houston [1 st Dist.] 2006) aff d, Nos. PD , PD , S.W.3d, 2007 WL (Tex. Crim. App. Oct. 17, 2007) (citing State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999)). 48 See Tex. Code Crim. Proc. Ann. art (a). 49 See Amores, 816 S.W.2d at Id.; see also Victor v. State, 995 S.W.2d 216, 221 (Tex. App. -- Houston [14 th Dist.] 1999, pet. ref d) ( [T]he State must show the existence of probable cause at the time of the arrest and the existence of circumstances which made the procuring of a warrant impracticable. ) 51 See Amores, 816 S.W.2d at 413; Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) (citing Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989)) ( The test for the existence of probable cause is whether at that moment the facts and circumstances within the officer s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. ). San Antonio Lawyer 11 May-June 2008

12 arrest authorized by Article 14.01(a) is constrained by Article as well. The use of deadly force is only authorized when a private citizen acts in a peace officer s presence and under his direction. 73 Use of deadly force, under any other scenario involving a citizen s arrest, is strictly forbidden. 74 False Arrest/False Imprisonment Arresting others reasonably believed to have committed a felony or breach against the peace puts private citizens at personal risk for legal liability. Actually restraining the free movement of another citizen, without justification or defense, opens the door to possible charges of false imprisonment. The Texas Penal Code classifies false imprisonment as either a Class A misdemeanor or felonies of differing degrees, depending on the circumstances. 75 Civil liability may also lie. 76 The highest court s earliest interpretation of Texas s citizen s arrest statute carried the explicit warning that an improper citizen s arrest subjected the private individual to an action for false imprisonment. 77 Charges of false imprisonment can also flow from improper arrests under Article However, such charges will not lie, even if the arrested party was actually innocent, if the arrestor had probable cause to apprehend the person upon suspicion that he or she carried stolen property. The court in Henderson implicitly recognized the possibility of false imprisonment charges when it wrote: Moreover, in attempting to do these things authorized by this article, persons so acting would not be guilty of false imprisonment should there be reasonable ground to suppose the property stolen, and the party taken to be the offender, notwithstanding it should thereafter transpire that the property was not stolen, and that the person taken was not a thief. The very language of the statute shows this to be the situation, because the statute says that to justify such seizure there must be reasonable grounds to suppose the property to be stolen. Other Considerations While a private citizen does not have the authority to make an investigatory stop based solely on suspicion i.e., without probable cause 79 his authority may be enhanced to the level applicable to a peace officer if the private citizen is commanded to assist in the execution of an arrest or search warrant by a peace officer. 80 A citizen making a warrantless arrest may adopt all the measures that may be adopted in cases of arrest under warrant. 81 Whenever a citizen makes an arrest, the person arrested must be taken without unnecessary delay before a magistrate in the county in which the person was arrested or, if it would be faster, before a magistrate in a county bordering the county in which the arrest was made. 82 Simon Azar-Farr resides in San Antonio, Texas, and represents his clients across the United States in areas of immigration law and criminal defense. 52 Miles v. State, 194 S.W.3d 523 (Tex. App. -- Houston [1 st Dist.] 2006), aff d, Nos. PD , PD , S.W.3d, 2007 WL (Tex. Crim. App. Oct. 17, 2007). 53 Id. at Kocurek v. State, No CR, 1999 WL (Tex. App. -- Houston [14 th Dist.] 1999, no pet.). 55 Id. at Id. (citing McBride v. State, 946 S.W.2d 100, 102 (Tex. App. -- Texarkana 1997, pet. ref d); Wright v. State, 932 S.W.2d 572, 576 (Tex. App. -- Tyler 1995, no pet.); Trent v. State, 925 S.W.2d 130, 133 (Tex. App. -- Waco 1996, no pet.); Taylor v. State, 916 S.W.2d 680, 682 (Tex. App. -- Waco 1996, pet. ref d)). 57 See generally Lasker v. State, 290 S.W.2d 901 (Tex. 1956); Hepworth v. State, 12 S.W.2d 1018 (Tex. 1928); Morris v. Kasling, 15 S.W. 226 (Tex. 1890). 58 Tex. Code Crim. Proc. Ann. art Analyzing whether the grounds upon which an arrest is based are reasonable uses the same reasoning as the reasonable grounds analysis under Article 14.01(a). See Douglas v. State, 695 S.W.2d 817, 820 (Tex. App. -- Waco 1985, pet. ref d) (citing Adams v. State, 128 S.W.2d 41 (Tex. 1939)) ( The legality of an arrest and a seizure under this article depends upon whether the party making the arrest and seizure had a reasonable ground or probable cause to believe that the property seized had been stolen and that the party arrested was the thief who had stolen the property. ). Thus, when an off-duty officer was informed that a man fitting the description of a supposed shoplifter was on the streets of Amarillo with the stolen goods, the officer was authorized to arrest him, without a warrant, even though the officer did not witness the commission of the crime. See Hepworth v. State, 12 S.W.2d 1018, 1019 (Tex. 1928). Of course, one can reasonably assume that the outcome of the case may have been different if the informant or the information provided could not have served as reasonable grounds for the officer s belief. 60 See Levine v. State, 4 S.W.2d 553 (Tex. Crim. App. 1928). 61 Henderson, 298 S.W. at 407 (Tex. 1927). The court placed some restrictions on the exercise of this power, stating: However, this right does not authorize the owner to pursue and take the life of the supposed thief. That is to say, it does not authorize the owner to kill the thief should the latter make resistance merely to effect a recovery of the stolen property. Id. at 408 (citing Perez v. State, 29 Tex. Crim. Cts. 618). 62 Id. at See, e.g., Henderson, 298 S.W.2d at 407 ( But we do not think [ ] [A]rticle [14.01(a)] is applicable to the facts in this case. Upon the contrary, we think Article [18.16], under the facts which are without substantial contradiction, fully justifies the contention of the plaintiffs in error that the arrest of Blasingame was legal. ). 64 See Texas Criminal Practice Guide Tex. Civ. Prac. & Rem. Code Ann See generally Simpson, 815 S.W.2d 900, 902 (Tex. App. -- Fort Worth 1991, no pet.); Rhodes v. State, 712 S.W.2d 235 (Tex. App. -- San Antonio1986, no pet.). 67 Tex. Penal Code Ann Id. 9.51(b). 69 Tex. Penal Code Ann. 9.51(b); see also Simpson v. State, 815 S.W.2d at See Tex. Code Crim. Proc. Ann. art ( In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the accused. ). 71 Simpson, 815 S.W.2d at Id. at Tex. Penal Code Ann. 9.51(d). 74 Id. 9.51(g) ( Deadly force may only be used under the circumstances enumerated in Subsections (c) and (d). ) 75 Tex. Penal Code Ann (a), (c). 76 See, e.g., Childers v. A.S., 909 S.W.2d 282 (Tex. App. -- Fort Worth 1995, no writ)( The elements of a cause of action for false imprisonment are: (1) a willful [sic] detention of another; (2) without consent; and (3) without authority of law. ). 77 Doughty v. State, 33 Tex. 1, 3 (1870); see also Lacy v. State, 7 Tex. Ct. App. 403, (1879) (noting that a citizen s arrest can only be legally performed if the offense is committed within the presence of the citizen; all other arrests subjected the individual to all the consequences resulting from an illegal arrest ). 78 Henderson, 298 S.W. at See Garner, 779 S.W.2d at See Tex. Code Crim. Proc. Ann. art See Tex. Code Crim. Proc. Ann. art See Tex. Code Crim. Proc. Ann. arts , 15.16, 15.17, San Antonio Lawyer 12 May-June 2008

13 Scruples: How Do Paralegals Remain Ethical? By Ellen Lockwood Paralegals must always take care to be sure they are not crossing any ethical lines. Paralegals must be familiar with the ethical guidelines for paralegals and attorneys and any rules and regulations specific to the state in which they are working. Many paralegals inadvertently do something unethical because an attorney asked them to do it. The attorney may not be aware that what he is asking the paralegal to do is unethical. It is often the paralegal s responsibility to educate the attorney regarding the ethical limitations of a paralegal s duties. Procedures to Determine Whether a Course of Action is Ethical Answers to many ethics questions may be found in the Paralegal Ethics Handbook. But when a paralegal is asked to do something unfamiliar, or which raises questions, he should consider the following: Check the rules, if any, regarding what he is being asked to do. Rules will often specify who may do something, usually the attorney or the party. Even when the rules do not specify who may do something, it should be assumed the rules were written with the assumption that they apply to the attorney or party. Attorneys will sometimes assume that if a rule does not prohibit a non-attorney from doing something, then it is permissible for a non-attorney to do it. However, the absence of a prohibition does not imply permission for a non-attorney do something. Paralegals do not have clients, attorneys do. The attorney-client relationship is based upon the relationship between the attorney and client, not the paralegal and client. If what the paralegal is being asked to do would be considered representation of the client before a judge, court, or agency, then it is likely something only an attorney may do. This includes signing pleadings (even by permission), certificates of service, or other legal documents and appearing on behalf of a client in a hearing, conference, mediation, or other proceeding. Regarding billing and timekeeping matters, a paralegal should consider whether he would do it in front of a client. For example, if he would be reluctant to double bill, bill for more time than has elapsed, round up time, or other similar practices, then those actions are likely unethical and should be avoided. Check ethics resources such as the Ethics FAQs on the website of the Paralegal Division of the State Bar ( and ask respected paralegals their opinions. If in doubt, a paralegal should inform his supervising attorney that he is not comfortable and that it might be unethical to do what the attorney is asking. The paralegal may suggest the attorney or another attorney take care of the task until the paralegal can further investigate. Remember, you are either ethical or you aren t. You can t pick and choose when to be ethical or which rules to follow. If a paralegal is frequently asked to do things he considers unethical, despite his efforts to educate his supervising attorney, perhaps he should consider finding a different job, one where ethics are valued. After all, the most important aspect of your professional life is your reputation. Ellen Lockwood, ACP, RP, received her Bachelor of Music (BM) degree from Southwestern University and her paralegal certificate from Southwestern Professional Institute in Houston. She is a past president of the Paralegal Division of the State Bar of Texas and Chair of the Professional Ethics Committee of the Division, a position she also held from 1997 to Ellen is the lead author of the Division s Paralegal Ethics Handbook. She is also a past president of the Alamo Area Paralegal Association and a frequent speaker on paralegal ethics and intellectual property. She is the Intellectual Property Specialist for Clear Channel Communications,Inc Thomson/West. Reprinted with permission from The Paralegal Ethics Handbook authored by the Paralegal Division of the State Bar by Ellen Lockwood, ACP, RP, Laurie L. Borski, Rhonda J. Brashears, CP, Debra Crosby, Javan Johnson, ACP, and Lisa Sprinkle, ACP. For purchase information go to San Antonio Lawyer 13 May-June 2008

14 Juneteenth: A Personal Connection By Joe Hely The celebration of American freedom that we know as Juneteenth commemorates the arrival of Yankee general Gordon Granger in Galveston on this date in 1865, his reading of the Emancipation Proclamation, and most importantly, its legal effect: the freeing of 250,000 enslaved African Americans residing throughout those of the former Confederate States that were not already under Federal control. General Granger proclaimed the following General Order #3, without apologies for its rather unsympathetic treatment of the Americans it freed: The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor. The freedmen are advised to remain quietly at their present homes and work for wages. They are informed that they will not be allowed to collect at military posts and that they will not be supported in idleness either there or elsewhere. The timing of General Granger s pronouncement is problematic. Consider that General Lee surrendered at Appomattox on April 9, that President Lincoln was shot on April 14, that the last battle of the war occurred near Brownsville on May 12-13, and that Generals Kirby Smith and John Bankhead Magruder surrendered in Galveston Bay on June 2. It is curious that the official application of Mr. Lincoln s 1863 Emancipation Proclamation was not pursued officially until June 19. Whether this delay was the result of federal official procrastination, lack of communication, or the influence of recalcitrant slave owners may be unanswerable at this late date. Celebration of the holiday commemorating the original Juneteenth, however, was not delayed for long among the recently freed Americans. It San Antonio Lawyer 14 May-June 2008

15 was first celebrated in Austin in 1867 and shortly was observed in numerous locations statewide. In 1979, Governor Clements signed legislation making Juneteenth a state holiday. According to Wikipedia, Juneteenth is now recognized as a holiday or an official celebration in twenty-eight other states as well. San Antonio has its own Juneteenth Association, which annually produces one of the largest parades and affiliated celebrations in the nation. So what is my personal connection to Juneteenth, you may ask? Those of you who know me are aware of my European ancestry and acute melanin deficiency. In response, I refer you to Book B, Pages 428 and 429 of the Transcribed Probate Minutes of Harris County, which summarizes the guardianship proceedings for my great-grandfather, Matthew R. Willams, a minor, during the September 1864, term of the Harris County Court, Hon. I.S. Roberts, presiding as Chief Justice of Harris County. No cause number is given. Those minutes show that Matthew was a thirteen-year-old resident of Harrisburg who found himself owner of a slave named Jane and her eighteen-month-old daughter named Betty. I postulate, without any proof, that Jane was his nanny, and that Matthew inherited her from his Dad s estate, since it eases my conscience to think that maybe Jane and Betty were treated well under the circumstances. Anyway, these two unfortunates were listed on the guardianship Inventory as having a composite value of $550, as attested by his guardian (and stepfather) H.E. Hartridge and three appraisers. The guardianship was established because Matthew s father had died and because, in those days, having a surviving mother was insufficient legal protection for a minor child having what was for those times a significantly valuable estate. On October 24, 1865, Mr. Hartridge filed a petition with Judge Roberts to terminate the guardianship. The reason given was that the property of said minor was [a] negro woman and [a] child and by the proclamation of the President of the United States of America the said property are emancipated.... The Court subsequently ruled: The Guardian of this minor having filed a petition representing that the only property of said minor was a negro woman and child which are now free and said petition being examined and found correct It is ordered by the Court that the case be dismissed upon the payment of costs. At the time, Matthew was a messenger boy officially on the rolls of the Confederate army, helping General Magruder defend the Texas coast from invasion, so my grandmother told me. My Dad s cousin and I found these minutes a number of years ago at the Harris County Family Courts Building. Our family had no prior knowledge of the guardianship, and we knew nothing at all about Jane and Betty. But it didn t take much thought to realize the immense effect that Juneteenth had on their two lives. I m sure that I cannot empathize sufficiently to understand the physical, mental, and moral burden of being somebody s property, nor the joy of being relieved of that burden. Having no other information about Jane and Betty, I can only hope that they lived long, happy, and healthy lives, enjoying their American freedom. I like to think that Jane and Betty participated in Juneteenth celebrations for the rest of their lives, and that Betty was revered in her community during her elder years as one of the last surviving freed slaves in Texas. Matthew and his half brother Charlie Hartridge moved to Missouri in the 1870s to find jobs, and he died in St. Louis of stomach cancer in To my knowledge, he never spoke to my grandmother or his other children about Jane and Betty, so I have been free to imagine their lives before and after emancipation. I am sure, however, that Matthew would have wanted me to substitute the word damnyankee in the first sentence of this piece. Joe Hely is a sole practitioner in the areas of probate and real estate law. He has been a prime source of first-person Aggie jokes in San Antonio since He and his wife Nell reside in town with two dogs and either or both of her sons, depending on their college schedules. San Antonio Lawyer 15 May-June 2008

16 Your savings insured to at least $100,000 and backed by the full faith and credit of the United States Government National Credit Union Administration, a U.S. Government Agency The Defense Counsel of San Antonio presents Cooking With The Judges Tuesday, May 13 6:30 p.m. Central Market on Broadway (Cooking School on the second floor) Food and wine will be served. Justice Catherine Stone Fourth Court Update. Judge Janet Littlejohn Ethics at the Courthouse. Judge David Berchelmann District Court Procedure. Cost: $50 CLE: 1.0 hours 0.25 hours of Ethics credit RSVP by May 9 to Cameron Cooke at CCooke@bpgrlaw.com Limited seating available. And the verdict is... You Win When You Choose SACU! online services investments checking savings loans I NCUA EQUAL HOUSING LENDER San Antonio Lawyer 16 May-June 2008 As a member of the San Antonio Bar Association, you qualify for membership.

17 Recent Cases By Justice Catherine Stone In Sarah v. Primarily Primates, Inc., No CV, 2008 WL (Tex. App. San Antonio Jan. 16, 2008, no pet. h.), twelve primates utilized in research were sent from Ohio State University to Primarily Primates, Inc. ( PPI ) in accordance with a contractual arrangement. Shortly after the primates were shipped to PPI in Texas, two of them died, and a third escaped from a cage. Attorneys purporting to act on behalf of the surviving primates filed suit against PPI requesting, in part, the recognition of a trust. The trial court dismissed the lawsuit for lack of standing. The Fourth Court affirmed, concluding that the contract between Ohio State and PPI did not create a trust to provide for the care of the primates. In Shultz v. State, No CR, 2008 WL (Tex. App. San Antonio Jan. 23, 2008, no pet. h.), Schultz was indicted for assault against a family member. The indictment alleged that Schultz had a prior assault conviction against a member of his family, elevating the charged offense from a Class A misdemeanor to a third degree felony. After a jury found Schultz guilty of the offense, but before the punishment phase of trial began, Schultz entered into an agreement with the State pursuant to which he agreed to a ten-year sentence in exchange for the State s agreement not to file additional charges against him. The trial court sentenced Schultz to ten years. On appeal, the State argued that the Fourth Court did not have jurisdiction to consider the appeal because it was a plea bargain case. The Fourth Court disagreed because Schultz entered a plea of not guilty and never changed that plea or affirmatively waived his right to appeal. The State further argued that Schultz was estopped from challenging the legal sufficiency of the evidence to enhance his offense to a felony because he agreed to the imposition of a felony sentence. The Fourth Court agreed. Because Schultz agreed to the imposition of the ten-year felony sentence as part of his agreement with the State, [h]e cannot now be heard to complain that a felony conviction and sentence should not have been imposed. In County of Bexar v. Bruton, No CV, 2008 WL (Tex. App. San Antonio Feb. 6, 2008, no pet. h.), Edwin Bruton sued Bexar County for injuries he sustained in an Proudly Serving Our Legal Community for Over 19 Years Legal Media Production and Photography Mediation Settlement Brochures MPEG-1/CD/DVD Conversion Editing - linear & non linear Multi-Camera Video Shoots Videography/Photography Sanction Synchronization Forensic Videography Equipment Rental Video Duplication Available to Travel terry@terrylindemann.com (210) please call for more information: automobile accident with a vehicle driven by a Bexar County employee. Bexar County filed a plea to the jurisdiction contending that Bruton s claims were barred because Bruton failed to give Bexar County the notice required by section of the Texas Local Government Code. Section requires a plaintiff to notify the county judge and county or district attorney within thirty days of filing a lawsuit against a county. The trial court denied the plea to the jurisdiction, and the Fourth Court affirmed, holding that section s notice requirement is not a jurisdictional requirement. In Lee v. Daniels & Daniels, No CV, 2008 WL (Tex. App. San Antonio Feb. 13, 2008, no pet. h.), an attorney sued a client for breach of the agreement to pay the attorney s fees and expenses. An arbitrator awarded the attorney fees associated with his motion to withdraw. On appeal, the client asserted that the payment of those fees was unconscionable. The Fourth Court agreed, holding that the time spent on the withdrawal was not time spent engaged in legal services performed or rendered on behalf of the client, but instead was time spent by the attorney engaged in services performed for the attorney s own benefit. Recognizing that the holding could potentially impose a burden on withdrawing attorneys with legitimate reasons to withdraw, the Fourth Court noted, It is simply one of the costs that must be borne by a professional who operates under the mantle of a fiduciary duty. As a professional, an attorney s relationship to his client is not to be guided by the morals of the marketplace. Justice Catherine Stone has served on the Fourth Court of Appeals since March of 1994 and is board certified in civil appellate law. Fourth Court Update San Antonio Lawyer 17 May-June 2008

18 Book review: Cartographia by Vincent Virga and the Library of Congress Reviewed by Paul Russo Stone Coffee-table books are generally not read; they are looked at. They serve first as adornment, and so the first criteria they must satisfy are that they look good closed, and have plenty of pictures to interest people casually browsing through them. On that basis, Cartographia is a success. Its dust jacket is lusciously colored and embossed, and its content will divert, and possibly intrigue, visitors in your outer office who happen to pick it up while waiting. Anything more, from this type of book, is gravy. Drawing on the five million maps in the Library of Congress s Geography and Map Division, Vincent Virga presents a history of mapping across the world from earliest beginnings to the modern age. Some maps are familiar: The World According to Hecatæus shows the three-part world known to the ancient Greeks, with the easily recognizable Mediterranean Sea surrounded by increasingly vague inaccuracy to the edge of the world on the shore of the encircling ocean. Others are less so: a three-dimensional bronze Etruscan map of a sheep s liver; a tenth-century Persian earthenware bowl which, to my eyes, is a stylized picture of a bird, but according to Mr. Virga is a map of the world ( Arabia the bird s head Mecca its eye? with Asia and Africa its wings and Europe its tail. ). And some can barely be called maps, like the pictorial map of the 1896 Battle of Adwa, or the Han Cosmic Mirror, a decorative plate which, according to Mr. Virga, may show a square earth and a round heaven. Philistine that I am, it looks to me like nothing more than a large, carved wooden medallion with a shiny center. Mr. Virga structures his book in a straightforward way. He begins with mapmaking in the Mediterranean, where civilization began with the Babylonians about seven thousand years ago. Asia comes next, in a discussion loosely following Marco Polo s description of his travels. This is followed by discourses on mapmaking in Africa and Europe. Then come the Americas (with the bifurcation occurring not between North and South America, but between Latin and Anglo America; maps being cultural artifacts, it s entirely reasonable to divide the discussion of their development in accordance with cultural, rather than scientific, distinctions, and Oceania and San Antonio Lawyer 18 May-June 2008

19 Antarctica together make up the last part of the modern five-part world. Mr. Virga concludes with a tooshort epilogue called The Unseen Cultural World, in which he just touches on all the marvelous things maps can be made to do in our high-tech times. I particularly enjoyed his elucidation of how maps can convey false or accurate impressions, using as an example maps showing the results of the notorious 2004 presidential election. There are just over 200 illustrations in the book, many larger than a page. By themselves, they make this book a good choice for waiting rooms and other office spaces. Better still, the accompanying text will certainly hold the interest of that client perusing it in your waiting room; and it does explain the illustrations that are the main draw. In fact, most of the interpretations Mr. Virga offers of this extensive collection of maps shows that he has thought deeply about their content and meaning. On first read, I thought some of it maddeningly abstruse, but in every case, reflection brought a fuller appreciation of the sometimes difficult concepts he tries to convey. All that being said, the text is less than completely satisfying, for several reasons. First, it s more than a little disjointed. This, I suspect, is an inevitable consequence of the book s grand scope, but segues from one topic to another are sometimes strained, and other times absent altogether. For example, the segue from discussing fire-insurance maps to flood control maps ( One of the great subjects of the early movies, finding the balance between the urban and the rural, led to environmental decisions with predictable dire consequences. ) took me aback, and made me wonder if I might have accidentally turned two pages, or missed a paragraph. The second complaint I have about the text is the pompous gimmick Mr. Virga uses throughout the book, encapsulating almost every map he discusses with a Grandiose Title. At first this is just a little distracting, but after a dozen or so, this affectation causes much rolling of eyeballs. We go from Map as Fragmentary Evidence, to Map as Portrait of Master Builders, to Map as Belief System, to Map as the Aesthetics of Geometry, to Map as Homage to Greatness, to Map as Spiritual Way-Finding Tool (I kid you not), to Map as Heroic Collective Effort... through sixteen more such characterizations; and then we begin Chapter Two. And every time one of these overblown titles pops up, it destroys an otherwise seductive textual rhythm, like a pop-up window with grating music. It gets more than a little tedious. I imagine the author sitting in a cushy D.C. bar with his editors and friends, earnestly debating catchy ways to describe, in five words or less, the Deep Inner Meaning of the maps chosen for the book. That must ve been some bar tab, and I hope for his sake that the publishers picked it up. (If the Library of Congress was paying, then they were probably at a Starbucks.) I was also put off by the tone of the writing in places. Mr. Virga is a man clearly comfortable with political correctness in its most tiresome guise. He makes sure we know he is resolute in his condemnation of Eurocentrism, and ardent in his liberal (as opposed to Liberal) relative-humanist world view. The imperial Romans, progenitors of all that is evil in Western civilization, obliterated the language, literature, art, philosophy, and science of the vanquished, [but] utilized the stolen practical aspects for self-enrichment. A later, more subtly evil West, now represented by the competing British and Russian empires, engaged in a power struggle known as the Great Game, and Mr. Virga emphasizes that this entailed attendant disregard for Afghan life and the overthrowing of all indigenous administrations in the path of both contending powers... The Noble East, on the other hand, represented by the adaptable Mongol Empire, adopted Chinese institutions and created an administration that was, theoretically, a democratic meritocracy in China. Muslim Africans get praise for their glorious past, while in the same context, France gets credit for providing loans and grants and substantial military support for decades. There are tables at every bookshop and discount store groaning with largeformat picture books of Our National Parks, or Great Cities, or Birds Of The World, each with hundreds of attractive, brightly-colored photographs and a minimal amount of distracting text, marked down to five or seven dollars. Why would anyone pay $60 for this book, or even the on-line price of $37.40, when they could get one of those? After all, nobody s really gonna read it. Are they? Laying aside my quibbles, and crediting Mr. Virga for the valiant effort needed to cover the entire history of mapping civilizations in the space of about 250 pages, much of what he says about the maps, their origins, their functions and their legacies is informative, insightful and astute. If I don t buy into the implication of nefarious intent imparted to the C.I.A. for making a plain-old political map of Africa ( The tyranny of tradition in the twentyfirst century is behind this, ) I can still agree that the political entities created on that continent by its former colonizers offers no self-image of the African peoples. Maybe for that, this book deserves to be read. All the way through. Cartographia: Mapping Civilizations, by Vincent Virga and the Library of Congress, 272 pp., Little, Brown & Company, $ Paul Russo Stone retired from the practice of law in 2006, and is now in the 18th year of his three-year plan to renovate his house. The remainder of his time is devoted to travel, reading, and the cultivation of a moustache. San Antonio Lawyer 19 May-June 2008

20 Federal Court Update By Hon. Nancy Stein Nowak and Nissa M. Dunn Judge Nowak s summaries of significant decisions rendered by San Antonio federal judges from 1998 to the present are available for keyword searching at Court Web found at nysd.uscourts.gov/courtweb/. Full text images of most of these orders can also be accessed through Court Web. If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Nissa Dunn by phone at or by at nissadunn@dunnlawpc.com with the style and cause number of the case, and the entry date and docket number of the order. Preliminary Injunction Sirrah Companies, Inc. v. Budget Rent-A- Car Corp., SA-06-CA-523 OG, (Garcia, March 3, 2008) In denying plaintiff s motion for preliminary injunction, court found that plaintiff was not likely to succeed on the merits because the 1961 prime license agreement upon which plaintiff relied was subject to the defense of impossibility of performance or commercial impracticability. When the parties entered into the agreement, they could not have foreseen or contemplated the sophisticated reservation system that is used today. Civil Rights Galvan v. City of San Antonio, SA-07-CA- 371 OG (Garcia, March 3, 2008) Court granted, in part, defendants motion to dismiss in a case involving the death of an arrestee after a struggle with police officers in which they used a Taser. Court found that the state tort claims against all individual defendants must be dismissed pursuant to the Texas Tort Claims Act, sections (a) and (e) of the Texas Civil Practice and Remedies Code. Court also dismissed Section 1983 claim against the police chief because the pleading contained no facts which, if true, could support a finding of deliberate indifference. Excessive use of force claim against the individual officers remained pending. Forfeiture USA v. Cashier s Check, SA-06-CA-253 WRF, (Furgeson, February 28, 2008) In a civil forfeiture suit involving a cashier s check used to purchase contraband cigarettes with counterfeit Texas state stamps, summary judgment granted where the government proved there was a substantial connection between claimant s cashier s check and the underlying criminal activity, and claimant failed to establish innocent owner defense. First Amendment; Preliminary Injunction International Women s Day March v. City of San Antonio, SA-07-CA-971 XR (Rodriguez, February 21, 2008) Court granted motion for preliminary injunction finding that a recent city ordinance regulating marches and parades on public streets is unconstitutional as it vests too much discretion in the chief of police to determine the permit costs, does not clearly distinguish between traffic control costs (which can be assessed) and security costs (which cannot), and impermissibly exempts funeral processions and governmental agencies. FLSA Itzep v. Target Corp., SA-06-CA-568 XR (Rodriguez, February 14, 2008) Plaintiffs, who worked for a maintenance company that only cleaned Target stores, complained about failure to pay overtime wages. Court found fact questions as to whether Target was joint employer and whether two employeeplaintiffs were exempt managers precluded summary judgment. Copyright; Contract Spectrum Creations, LP v. Carolyn Kinder International, LLC, SA-05-CA-750 XR (Rodriguez, February 13, 2008) After bench trial, court entered lengthy findings of fact and conclusions of law on claims of breach of contract (including choice of law, contract construction, and confidentiality clause construction), rescission, tortious interference, misappropriation of trade secrets, copyright infringement, and attorneys fees under Section 505 of the Copyright Act. FMLA Mauricio v. Texstar Enterprises, Inc., SA- 06-CA-487 WRF (Furgeson, February 12, 2008) Order denying summary judgment in a Family Medical Leave Act case where genuine issues of fact existed as to whether plaintiff suffered from a serious medical condition as defined in the Act, and whether he provided adequate notice to defendant of his intent to take FMLA leave. Fraud; Contract/Sworn Account Tidwell v. Diversified Home Products, SA- 06-CA-264 FB (Biery, January 29, 2008, accepting recommendations of Nowak, November 11 and December 5, 2007) Order granting summary judgment on various claims including fraud, misrepresentation, and sworn account, and concluding that defendants/ counter plaintiffs failed to plead their claims of fraud and misrepresentation with sufficient particularity. Dismissal NAB Asset Venture v. KPMG, SA-07- CA-108 FB (Biery, January 22, 2008) Court granted motion to dismiss for failure to state a claim in putative class action, holding that plaintiffs had failed to demonstrate an actual injury because they did not allege or argue that any of the work performed by an accountant who failed to obtain reciprocal license in Texas was faulty, and because plaintiffs received exactly what they paid for- -legitimate accounting services from a licensed Texas accounting firm. Products Liability Mann v. Calflex Manufacturing, SA-06- CA-338 FB (Biery, January 17, 2008, accepting recommendation of Nowak, October 19, 2007) Products liability case in which plaintiff alleged that one of two defendants manufactured defective water supply hose and also sued seller of hose. Summary judgment granted for a manufacturer defendant where plaintiff s evidence merely showed that one of the manufacturer defendants manufactured faulty product, but failed to raise a fact question that movant manufactured product. Manufacturer defendant s motion for summary judgment on seller San Antonio Lawyer 20 May-June 2008