1 SPOTLIGHT ON AN EL PASO ATTORNEY Alejandro Acosta, Jr. By Cl i n t o n F. Cr o s s Page 14 Some Early History of Legal Aid in El Paso, Texas By Cl i n t o n F. Cr o s s Page 7 Las Siete Partidas By N. Je s s i c a Lu j a n Page 12
2 WE MAKE A STRONG CASE WE BELIEVE IN THE COMMUNITY unitedelpaso.com (915) Downtown: 401 E. Main West: 125 Mesa Hills Dr. at Mesa East: 9801 Gateway West at McRae & 1726 North Zaragoza Road Designed by: CultureSpan Marketing Attention: El Paso Bar Association
3 3 President s Page State Bar of Texas Awards Award of Merit Star of Achievement Outstanding Partnership Award Outstanding Newsletter Publication Achievement Award NABE LexisNexis Awards Community & Education Outreach Award -2007, 2010 & 2012 Excellence in Web Design 2007 Excellence in Special Publications 2008 Laura Enriquez, President Myer Lipson, President-Elect Christopher Antcliff, Vice President Mark Dore, Treasurer Jennifer Vandenbosch, Secretary Randolph Grambling, Immediate Past President Board Members Brock Benjamin Ouisa Davis Soraya Hanshew Rene Ordonez Jeff Ray Melissa Baeza Daniel Hernandez Judge Miguel Torres Felix Valenzuela Sean White Kristina Voorhies Legan Aldo Lopez David Mirazo Janet Monteros Philip Mullin Ex-Officios SBOT Director, District 17, EPYLA, MABA, EPWBA, ABOTA, FBA, EPBF, EPFLBA, EPPBA, EPALP Executive Director Nancy Gallego Editorial Staff Clinton Cross, Judge Maria Salas- Mendoza, Nancy L. Gallego & Ballard C. Shapleigh The El Paso Bar Journal is a bi-monthly publication of the El Paso Bar Association. Articles, notices, suggestions and/or comments should be sent to the attention of Nancy Gallego. All submissions must be received by the Bar office on or before the 10th day of the month preceding publication. Calendar listings, classified ads, display ads, and feature articles should not be considered an endorsement of any service, product, program, seminar or event. Please contact the Bar office for ad rates. Articles published in the Bar Journal do not necessarily reflect the opinions of the El Paso Bar Association, its Officers, or the Board of Directors. The El Paso Bar Association does not endorse candidates for political office. An article in the Bar Journal is not, and should never be construed to be, an endorsement of a person for political office. There are many criminal cases filed in our city. Our federal and state judges are working harder than any other judges in Texas because of the number of arrests made on the border. Representing the accused is the most important job any lawyer can have. In my opinion, it is the most difficult lawyer job because juries generally do not believe that a person is innocent until proven guilty. Jurors assume that if a person is on trial, that the person must have done something wrong and is likely guilty. I was privileged to have been an Assistant District Attorney for the 34th Judicial District and to have personally worked with some of the greatest criminal trial lawyers in the state of Texas. Jim Darnell, Mary Stillinger, Joe Spencer, Kathleen Salome Smith, Chris Antcliff, Maureen Franco, Sergio Coronado, Ray Velarde, Dolph Quijano, Jr., Louie Gutierrez, Gary B. Weiser, Mathew DeKoatz, Jaime Gandara, Danny Anchondo, Margarito Rodriguez, Michael Blake, Chris Bradley, Mike Cervantes, Louis Lopez, Ron Henry, Alex Melendez, Leonard Morales, Greg Anderson, Robert Perel, Fernando Chacon, Jaime Olivas, Jesus Olivas, Ignacio Estrada, Frank Guzman, Ruben Hernandez, Mike Cervantes, Robert Harris, Gary Hill, Richard Jewkes, Francisco Macias, Charles Roberts, Reggie Trejo, Leon Schydlower, Darren Ligon, Robert Perez, Joe Rosales, Mark Rosales, Rafael Salas, Patrick Lara and Victor Salas are some of the great lawyers representing criminal defendants in El Paso. These lawyers have so much experience with our juries. They have fought the battles in our courts and have earned the right to be mentioned because of their experience. The criminal law section of the El Paso Bar Association is headed by Danny Razo and Brock Benjamin, two other excellent criminal defense attorneys. These lawyers work hard to represent the rights of the accused, at times with little pay. I was approached at the ceremony for Lady Justice by a man after my brief speech who thanked me for my words and told me that the most important thing in a free society is the rule of law. Criminal defense attorneys work hard to promote the rule of law. Remember that the out of town lawyers do not know our juries and do not have the experience of the El Paso criminal defense attorneys. For all of your criminal problems, hire an El Paso lawyer! Laura Enriquez, President
4 4 Student Loan Assistance for Public Service Lawyers By Jacob Wedemeyer Lawyers often service student loan debt after college and law school. There are programs that provide loan repayment assistance for lawyers that work for the government, legal aid, or other non-profits. Various entities provide assistance, including the U.S. Department of Education, the State Bar of Texas/Texas Access to Justice Foundation, and some law schools and employers. Here are some of the programs in Texas: US Dept. of Edu: Public Service Loan Forgiveness (PSLF) program: 10-year plan. US Dept. of Edu: Perkins Loan deferral and cancellation for prosecutors and public defenders: 5-year plan. SBOT/TAJF: Texas Student Loan Repayment Assistance Program. Limited funding. John R. Justice Student Loan Repayment Program for prosecutors and public defenders, administered by the Texas Higher Education Coordinating Board. Limited funding. Educational Loan Repayment for Attorneys Employed by the Office of the Attorney General. UT Law Loan Repayment Assistance Program. Rural Texas prosecutors loan repayment assistance. Tex. Edu. C. Sec et seq. Not funded. The main program is the U.S. Department of Education s Public Service Loan Forgiveness (PSLF) program that forgives qualifying federal loans after 10 years of eligible public service. Non-lawyers and other occupations may also qualify for assistance. More information is available online, especially from Equal Justice Works at and the US Department of Education at https:// studentaid.ed.gov/repay-loans/forgivenesscancellation/charts/public-service#what-kindsof-employment. JACOB WEDEMEYER Is an Assistant County Attorney in the General Counsel unit. E l Pa s o Ba r As s o c i a t i o n October Bar Luncheon Tuesday, October 14, 2014 El Paso Club 201 E. Main, 18th Floor, Chase Bank - cost $20 per person, 12:00 Noon Guest Speaker John Balliew, CEO of the El Paso Water Utilities who will give a presentation on the state of water in our region. Door prizes will be given out Please make your reservations by Monday, October 13, 2014 at 1:00 p.m. at or Please make sure you RSVP. E l Pa s o Ba r As s o c i a t i o n November Bar Luncheon Tuesday, November 4*, 2014 El Paso Club 201 E. Main, 18th Floor, Chase Bank - cost $20 per person, 12:00 Noon Guest Speaker Lt. Col. Runo C. Richardson, Deputy Staff Judge Advocate of Ft. Bliss This is our annual salute to Veterans Door prizes will be given out Please make your reservations by Monday, November 3, 2014 at 1:00 p.m. at or *This month s luncheon was changed because November 11th is Veterans Day and a National Holiday. Articles published in the Bar Journal do not necessarily reflect the opinions of the El Paso Bar Association, its Officers, or the Board of Directors. The El Paso Bar Association does not endorse candidates for political office. An article in the Bar Journal is not, and should never be construed to be, an endorsement of a person for political office. Access to Justice Legal Fair Sa t u r d a y, Oc t o b e r 25, :00 a.m. to 1:00 p.m. Valle Verde Campus El Paso Community College, 919 Hunter If you can volunteer for the clinic, please contact George Andritsos at or Nancy Gallego at
5 5 CALENDAR OF EVENTS October, 2014 November, 2014 Tuesday, October 7 EPBA BOD Meeting Wednesday, October 8 EPALP Monthly Luncheon Guest Speaker: Larry Phifer Friday, October 10 Memorial Resolution Rickie Feuille Monday, October 13 Columbus Day-EPBA Office Closed Tuesday, October 14 EPBA Monthly Luncheon Guest Speaker: John Balliew, CEO El Paso Water Utilities Thursday, October 16 EPPA Monthly Luncheon Thursday, October 16 Boss s Day Thursday, October 16 Happy Anson 11 Upstairs Garden Room Saturday, October 25 Access to Justice Legal Fair Valle Verde Campus, EPCC Friday, October 31 Halloween Tuesday, December 2 EPBA BOD Meeting Thursday, December 4 Joint Holiday Party Tuesday, November 4 EPBA Monthly Luncheon Guest Speaker: Lt. Col. Runo C. Richardson Annual Salute to Veterans Tuesday, November 4 EPBA BOD Meeting Tuesday, November 11 Veterans Day EPBA Office Closed Upcoming Events: Tuesday, December 9 EPBA Monthly Luncheon 50-Year Attorneys Wednesday, November 12 EPALP Monthly Luncheon Thursday, November 20 EPPA Monthly Luncheon Thursday, November 27 Thanksgiving Day EPBA Office Closed Friday, November 28 Thanksgiving Holiday EPBA Office Closed Thursday, February 12-14, th Annual Civil Trial Practice Seminar Mirage Hotel and Casino Las Vegas, Nevada ATTENTION ATTORNEYS: CRIMINAL APPOINTMENTS IF YOU WISH TO BE APPOINTED TO CRIMINAL FELONY AND MISDEMEANOR CASES, YOU MUST FILL OUT THE FOLLOWING APPLICATION: 1. EL PASO DISTRICT AND COUNTY COURTS TEXAS FAIR DEFENSE ACT ATTORNEY APPLICATION IF YOU WISH TO HAVE AN EXCEPTION TO RECEIVE CRIMINAL CASE APPOINTMENTS BECAUSE YOU CURRENTLY DO NOT HAVE THE NECESSARY CLE HOURS OR TRAINING, YOU MUST FILL OUT THE FOLLOWING APPLICATON: 2. EL PASO DISTRICT AND COUNTY COURTS APPLICATION FOR EXCEPTION TO QUALIFICATIONS TO RECEIVE CRIMINAL CASE APPOINTMENTS THE APPLICATIONS MAY BE PICKED UP AT ANY OF THE DISTRICT COURTS, COUNTY COURTS AT LAW, COUNTY CRIMINAL COURTS AT LAW, COUNTY COURT ADMINISTRATION (ROOM 302), JAIL MAGISTRATE, EL PASO BAR ASSOCIATION (LL-112) AND THE COUNCIL OF JUDGES ADMNISTRATION (ROOM 101). ALL ORIGINAL APPLICATIONS MUST BE RETURNED TO THE COUNCIL OF JUDGES ADMINISTRATION, 500 E. SAN ANTONIO #101, EL PASO, TX THE EL PASO CRIMINAL DISTRICT AND COUNTY COURTS PLAN STANDARDS AND PROCEDURES RELATED TO APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS WAS APPROVED BY THE COUNCIL OF JUDGES ON JULY 31, THE PLAN IS AVAILABLE ON THE COUNCIL OF JUDGES ADMINISTRATION COUNTY WEBSITE, ALSO ON THE COUNCIL S WEBSITE IS THE EL PASO CRIMINAL DISTRICT AND COUNTY COURT SCHEDULE OF FEES FOR THE COMPENSATION OF COURT APPOINTED COUNSEL TO BE EFFECTIVE SEPTEMBER 1, CJA-8/15/14 ALL APPLICATIONS MENTIONED ABOVE ARE ALSO AVAILABLE ON THE COUNCIL OF JUDGES ADMINISTRATION WEBSITE WHICH CAN BE FILLED OUT ON LINE.
6 6 Richard H. Feuille Memorial Resolution Ceremony The Eighth Court of Appeals and the El Paso Bar Association will hold a Memorial Resolution Ceremony for Richard H. Feuille on Friday, October 10, 2014, 10:00 a.m. Eighth Court of Appeals 12th Floor, El Paso County Courthouse SAVE THE DATE!!! 19 th Annual Civil Trial Practice Seminar Mirage Hotel & Casino Las Vegas, Nevada February 12, 13 & 14, 2015 Room rates are: $96 on 2/12/ $166 on 2/13/2015 & $186 on 2/14/2015 Complete Schedule and List of Speakers will be in the next issue of the Bar Journal. Make your plans to join us for a great seminar!!! Upcoming Holidays Columbus Day Monday, October 13, 2014 Veterans Day Tuesday, November 11, 2014 Thanksgiving Day Thursday, November 27, 2014 Day after Thanksgiving Friday, November 28, 2014 ADVANCE SHEET, October 30, 1275 A.D. From the rolls of the Abbey of Bec, court held in Tooting [Surry] on Monday before the feast of S. Leonard: (Note, the feast of S. Leonard in 1275 was on Monday, November 6, so the trial was on Monday, October 30.) John son of Alma demands a cottage which Henry Fleming holds and gives the lord 12 d. for the oath and recognition of 12 men; pledge Richard Jordan. The jurors say that Henry Fleming has the better right. Clearly, the court was faced with a property dispute with John claiming a possessory right to Henry s cottage. The dispute found its way to the court and upon paying what we would recognize as a filing fee of 12 pennies (I will leave it to you to ponder the effects of inflation), the case was tried. The jurors returned a finding that Henry s right to possession was higher than John s. Case closed. One of the truly interesting aspects of this dispute is the jury. It is unknown whether there existed juries in England prior to 1066, but after King Harold took an arrow to his eye on the fields at Hastings, William made rather substantial and long-lasting changes to how things were generally run in government. Two hundred years later, juries were an integral part of the settlement of disputes, both civil and criminal. However, the juries were not what we would recognize as being fair and impartial. Rather, juries were an assemblage of persons from the community who either knew the parties and the basis for their dispute, or they were expected to investigate the circumstances By Charles Gaunce surrounding the dispute. This seems to be somewhat closer to the concept of a grand jury that we know today, although our modern grand juries are not as well informed as the petit juries of old. I am certainly not an advocate for a return to the judicial practices of 800 years past, but I can t help but wonder if their practice of selecting a pre-informed jury was appropriate for the culture of the day. They lived in a fairly small and community-informed society, where most everyone knew the smallest details of the business and disputes of everyone else. Gossip was rampant and served as the chief form of entertainment. Under these circumstances, finding a group of 12 persons who were studiously ignorant of a dispute between individuals would be simply impossible to do. The purpose of a trial was to submit the dispute to the judgment of the community and thereby permit everyone to move on with their lives knowing how the community resolved the issue. It seems to have worked for them. CHARLES GAUNCE is the Legal Reference Librarian at the University of Texas at El Paso. This case was decided during the reign of King Edward the First. King John, who signed Magna Carta in 1215, was King Edward s grandfather. King Edward married Eleanor, Alphonso s half sister, who bore him many children. Alphonso X of Spain ( El Sabio ) published Las Siete Partidas in 1256 A.D.
7 Some Early History of Legal Aid in El Paso, Texas 7 By Cl i n t o n F. Cr o s s Introduction The Pledge of Allegiance to our flag promises liberty and justice for all. Above the entrance to the United State s Supreme Court are inscribed the words Equal Justice for All. This year there will be pro bono clinics, and a lot of words will be uttered embracing the notion that our justice system dispenses justice fairly. At the same time, the President of the American Bar Association admitted this year that our legal system over-serves the wealthy and under-serves the poor and the middle class. Private funding and pro bono efforts cannot meet the acknowledged need. Public funding for legal aid remains highly controversial. What is to be done? With the development of the computer and the internet, there may be opportunities in the future to provide some constructive responses to the eternal challenge of providing justice to most Americans at an affordable price. I will not write today, however, about dreams for the future, but about the past. This year marks the 50 year anniversary of the Civil Rights Act of 1964 and the 40 year anniversary of creation of the Legal Services Corporation (LSC). I mention these two pieces of legislation together because each has civil rights components and there is an El Paso link to both events. Former Scott Hulse attorney Ralph Yarborough was perhaps the only Southern Senator to vote for the Civil Rights Act of Today, is the primary funding source of the Local Legal Aid Program. Getting the Program Started The struggle for publicly funded legal services in El Paso began in Schuyler Marshall, chairman of the El Paso Bar Association Legal Aid Committee, submitted a grant proposal to the Office of Economic Opportunity (OEO) in 1966, and three more proposals in The OEO rejected all four proposals as being inadequate. During this period, Richard Marshall (not related to Schuyler Marshall), a leader of the Council on Neighborhood Services for Equal Opportunity (CONSEJO), Tom Diamond, and Lucy Edwards, an attorney who headed Project Bravo, the local OEO affiliate, drafted a proposal to the OEO for a legal aid program. In the 1950 s Richard Marshall, joined by Scott Hulse attorney Richard Feuille, had advocated for a legal services program for the poor in El Paso, but these early efforts were not successful. The purpose of the Marshall-Diamond-Edwards proposal was to prod the established Bar into a proposal that would have a greater chance for funding. Finally, Mark Howell, who at the time was an associate with the Peticolas law firm, drafted a proposal that on December 10, 1968 was submitted to the OEO. Frustrated by the funding hierarchy, Howell went over the head of the Texas Governor s office and the local El Paso Bar directly to the OEO to get funding for a local legal aid program. In April, 1969, the proposal was funded. It is rumored that Howell was asked to leave his firm because of his role in getting El Paso Legal Assistance Society (EPLAS) funded. On September 22, 1969, EPLAS opened its doors to the public on the ninth floor of the International Building at 109 North Oregon Street. The Director Fred Weldon, who previously worked for the firm of Mullinax and Wells in Dallas, received a salary of $15, a year. My Career as an OEO Lawyer When I arrived in El Paso in October, 1969, the program was staffed by a Director, Fred Weldon; lawyers Michael Mendelson, Bob Millard and myself; and Reginald Heber Smith scholars ( Reggies ) Kent Morrison and Stuart Abelson. The Reggies were paid from an independent funding source, and remained in their assignments as independent employees. As such, they were free at any time to ask for a reassignment. The lawyers were all expected to handle family law cases, but also to focus on one other area of practice. I was assigned consumer law. In the beginning, there were many critics of publicly funded legal aid who claimed that the OEO lawyers were troublemakers and headline grabbers. I don t think the criticism was deserved. We did a lot of boring, routine service work. Sometimes the routine practice changed, but not always because we initiated the change. For instance, when I first arrived, we handled divorces and we had to set each and every divorce case for a hearing before we could go to court. It was very time consuming. Judge Enrique Peña changed the divorce practice in El Paso by setting uncontested divorces on Fridays without the necessity of obtaining a prior court setting for each case. After Peña s changes were implemented, we obtained the assistance of Marlene Anderson, a Volunteer in Service to America (VISTA) volunteer, who interviewed the clients and prepared the necessary paperwork prior to the court hearings. One Friday I divorced 15 women, one after another. I learned on that day that misery loves company. When I began my work at EPLAS, there were no lawyers in El Paso representing consumers. According to the generally accepted definition, consumers are not just buyers, but individuals who enter into transactions for personal, family, or household purposes. In other words, the transactions did not involve the exchange of large sums of money. In addition, only a few lawyers in El Paso represented poor people, and then rarely with sufficient time or resources to give the case a first class effort. For my clients, justice was a new experience. In my first year, I had a lot of fun writing creditors who had sent my judgment proof clients aggressive collection letters demanding payment of money on installment contracts which violated the Texas Credit Code and the Federal Truth in Lending Act. I noted all the credit code violations, totaled the amount of the time price differential and/or the finance charges, allowed an offset for the creditor s claim, and then demanded payment for balance owed to my clients. I didn t follow up on my claims in court, but the creditors usually quit bothering my clients. I helped awaken the business community and their lawyers to the new state and federal credit code legislation, which I considered more than a fair quid pro quo. One of my first cases involved referral selling. I kept seeing clients who had purchased a Filter Queen vacuum cleaner, couldn t pay for it, and were sued by the finance company that had purchased the local distributor s paper. The clients complained they had purchased the vacuum cleaner because they needed one and because they could get one for free and make money to boot by simply referring prospective
8 8 customers to the company. The hitch was that to get the ten dollar referral fee the prospective customers had to be reliable and if both the husband and wife were married they had to show up for the sales pitch together. Reliable meant they had to have good credit. My clients referred people who showed up but the company refused to pay the ten dollars when they did not buy the machine because they were not reliable. When the company sued my clients, I alleged illusory promise and fraud but I lost when the finance company proved holder in course status. Fortunately or unfortunately, the company kept suing my clients so I kept trying to find a defensive theory that would work. I finally concluded that the contracts were illegal for a number of reasons. For example, my clients were not members of the Credit Bureau and thus had to take a chance that the individuals who they referred to the local franchisee were reliable. When I alleged illegality as a defense, I started to win because the company would non-suit their cases. But the company kept selling vacuum cleaners and new clients kept coming in the door. I did more research and discovered the Texas Gaming Statute. Around the turn of the century, Will Burges (who later in his career went to work for Scott Hulse) and T.A. Falvey went to Austin and got the Texas legislature to approve the legislation. Burges and Falvey wanted to deter gambling and prostitution in El Paso and the State of Texas. At the time, criminal convictions for these kinds of enjoyable activities were hard to obtain. The statute allowed the Attorney General of Texas, any District or County Attorney, or any individual without regard to interest, to file a lawsuit to enjoin the use of premises when it was being used to violate the law. I filed suit on behalf of a client, seeking an injunction.the District Attorney, represented by Mike Gibson, intervened. The case was transferred to the 34th District Court. On May 7, 1971, Judge Gerry Woodard granted the injunction. The injunction was the first of its kind in the state of Texas. I began to see many clients that same year who were being sued by a school for failing to pay for loans obtained to finance their children s education at Federal Vocational Training Institute. The school advertised Learn your way to better pay, promising both an education and a job. The applicants were usually high school drop outs who thereafter had gotten married and decided to get their act together. The school referred prospective students or their parents to a loan company to borrow the money for the course and then pay the school the entire amount before the classes started. When the students went to class, they found inadequate tools to do the work. The plumbing class only had a thread cutter. The mechanics class consisted of watching mechanics at a garage on Dyer street work on vehicles. The students were not allowed to do any work themselves. Many of the students complained to their parents that they were not learning anything. The parents went to the loan company threatening to quit making payments on the loan. The loan company replied that they had nothing to do with the deal the parents made with the school, and that they would have to pay the loan or face the consequences. Many parents also complained to the school. The school officials often pointed out that their children were high school dropouts, losers, and that their children were to blame because they wouldn t pay attention in class. Fortunately, State Senator Joe Christie was sponsoring legislation to regulate private trade and business schools. His two associates, Mark Berry and Ed Dunbar, helped draft the proposed trade school legislation. At the same time, Senator Christie was seeking funding for a community college in El Paso. El Paso needed the community college and the legislature funded it. The private trade and business school legislation passed. The legislation created a Proprietary School Advisory Commission which had regulatory authority. At the first hearing of the Advisory Commission, I testified in support of the first proposed regulations. The Advisory Commission adopted proposed regulations that addressed many of the abuses experienced by my clients. Private trade and business schools thereafter complied, or moved to another state. In the same year, the Texas Consumer Credit Commissioner s office proposed a regulation to require disclosure of finance terms in Spanish when the sales presentation was conducted in the Spanish language. I testified in support of this proposed regulation. It was adopted. In my defense of alleged debtors (as in the Filter Queen cases), I was frequently met with a holder in due course claim by alleged creditors and I was precluded from asserting my normal contractual defenses. I believed this ancient doctrine may have made sense in the courts of the dusty foot during the Renaissance, but that today in consumer transactions it had become merely a collection device that protected fraud in the marketplace. When I learned that my friend and sometimes adversary Albert Armendáriz, Sr. was trying to overcome a holder in due course claim in a suit by Surety Savings and Loan Association in
9 9 connection with a home improvement loan, I filed an amicus brief in support of his appeal in the Eighth Court of Civil Appeals arguing that the doctrine violated the due process clauses of the United States and Texas Constitutions in the absence of an intelligent, knowing and voluntary waiver of the debtor s traditional contractual defenses. I based my argument on a federal appeals case that held cognovit notes in Pennsylvania unconstitutional for the similar reasons. The court didn t give much attention to my argument. I felt vindicated when the Federal Trade Commission later promulgated Rule 433, which limited the effect of the holder in due course doctrine in consumer transactions. By the way, after three appeals to the Texas Supreme Court, Albert Armendáriz, Sr. and his son Albert Armendáriz, Jr. finally won their case. At the time, it was a landmark opinion. Hidalgo Savings and Loan v. Carolina Hidalgo, 487 S.W. 2d 702 (Tex. 1972), 481 S.W.2d 208 (Tex. 1972), and 462 S.W. 2d 540 (Tex.1971). I also saw a lot of clients who had received letters from attorneys purporting to represent clients who were owed money by my clients to their clients. Problem was, the lawyers were hired by collection agencies to sign the letters but they had not been hired by the creditors they allegedly represented and the collection agencies had not purchased the claims from the creditors. Since some of the lawyers engaged in the practice held important political jobs in El Paso, I chose to attack the problem indirectly by filing applications to perpetuate testimony with attached interrogatories to the creditor and then subpoenaing the creditor to come to court and answer the interrogatories. This turned out to be a particularly entertaining event when my cases landed in Justice of the Peace Brunson Moore s court. In December, 1971, Bill Meredith, an unhappy prospective car buyer came to our legal aid office complaining about a car dealer who had rolled back the odometer on a late model high mileage car he had for sale. Meredith did not buy the car, but thought the practice of rolling back odometers on cars should be stopped. I obtained an affidavit from Bill Meredith and sent it to the Texas Attorney General s office, Consumer Protection Division. The following year was an election year. Prior to the primary elections, the Sharpstown Bank scandal began to make headlines across the state and rocked the established political system. Houston attorney John Hill challenged the incumbent Attorney General Crawford Martin. Joe Longley, one of Hill s supporters, persuaded Hill to support passage of the current Deceptive Trade Practices Act ( DTPA ). Hill also planned to establish local, regional offices for the Attorney General s Office. John Hill won the election. Joe Longley, a former Assistant Attorney General in Martin s Consumer Protection Division, had long criticized his former employer for not taking action against car dealers for rolling back the mileage on used cars. When Hill won the election, Martin s employees in the Consumer Protection Division began to worry about their future employment. Martin relented and allowed his office to accept an Assurance of Voluntary Compliance from the El Paso Dealer who in agreeing to the Voluntary Compliance expressly denied wrongful conduct but promised never to roll back the odometers on a used vehicle again in the future. The Assurance was filed in Austin, Texas. Thereafter, District Attorney Steve Simmons, led by Assistant District Attorney Doris Sipes, conducted an investigation of the odometer rollback business in El Paso and discovered that many of the new and used car dealers were regularly employing rollback artists to roll back the mileage on late model high mileage vehicles. The District Attorney forwarded the results of his investigation to the lame duck Attorney General and demanded further action. The Attorney General promised action, but, like a stalled used car, nothing happened. The Attorney General claimed insufficient funds to take action. At the time I was West Texas Vice President of the Texas Consumer Association, a consumer advocacy organization affiliated with the Consumer Federation of America. The President of the Texas Consumer Association sent a telegram to the Attorney General offering to loan the Attorney General sufficient funds to carry out his duties entrusted by the people of Texas. El Paso Times reporter Allen Pusey (now publisher and editor of the American Bar Association Journal) and El Paso Herald Post reporter Nancy Hamilton covered the story on a daily basis and published the telegram in the papers. Two days later, the Attorney General notified the President of the Texas Consumer Association that his office had found sufficient funds to follow up on the El Paso District Attorney s investigation. Shortly thereafter the Attorney General filed suit against 39 local new and used car dealers and on the same day filed 39 agreed permanent injunctions enjoining the practice. The Texas Automobile Dealers Association (TADA) followed up by requiring that every one of its members sign an Assurance of Voluntary Compliance agreeing never to roll back the odometers on their used cars. Judge Tom Blackwell in Austin claimed he got writer s cramps signing all the agreements. John Hill took office January 1, He named Joe Longley head of his Consumer Protection Division. With the help of former El Paso District Attorney and Assistant Attorney General Barton W. Boling, Hill opened a Regional Office in El Paso, Texas. He sought and obtained passage of the Texas Deceptive Trade Practices Act which, like the Texas Gaming statute, provided for both public and private remedies. I believe the first case filed by Hill s Consumer Protection Division was against Health Mor, Inc., the manufacturers of
10 10 Filter Queen vacuum cleaners. The pleading tracked mine, but replaced the Texas Gaming statute as a vehicle for enforcement with the new DTPA. I Wasn t the Only One EPLAS lawyers brought a number of other important cases in the short period of time that I was there. Fred Weldon and private practitioner J.B. Ochoa filed a suit to prohibit busing of children who lived in Smeltertown to schools in South El Paso, when the nearest schools were in West El Paso. Albert Armendáriz, Sr. and the Mexican American Legal Defense Fund eventually assumed responsibility for prosecuting the case. Alvarado v. El Paso Independent School District, 593 F. 2d 577 (Court of Appeals, 5th Circ. 1979, cert. den d). Bill Pate filed a suit challenging the State s requirement to post a filing fee when running for office, with no exceptions. Stuart Abelson filed an intervention petition on behalf of an indigent client. The United States Supreme Court eventually ruled for the petitioners. Carter v. Dies, 403 U.S. 904 (1970). Kent Morrison filed suit to declare the requirement of an appeal bond from eviction cases with no in forma pauperis exception unconstitutional. A very important case brought by EPLAS was Morales v. Thurman, 569 F. Supp. 332 (E.D. Tex. 1983), a case that began because 171st District Court Judge Edward Berliner, responsible for the juvenile docket, was as a matter of course signing judgments sending juveniles to the Texas Youth Council ( TYC ) without a hearing when the parents and the juvenile authorities both agreed that the juveniles would profit from spending some time there. Judge Berliner should not be blamed for this practice; he inherited it, and no-one questioned it until the Morales case was filed. EPLAS attorney Steve Bercu learned that other courts throughout the State were following similar procedures. The case ended up being filed in East Texas and landed in federal judge William Wayne Justice s court. The case morphed into major institutional litigation, receiving national recognition. It preceded Ruiz v. Estelle, 503 F. Supp (S.D. Tex. 1980), another important institutional suit against the Texas Department of Corrections. Former El Paso District Attorney W. Barton Boling was responsible for defending both cases during his tenure as Chief of Mark White s Law Enforcement Division. Unfortunately, problems with the juvenile justice system continue to receive attention. Congress Establishes the Legal Services Corporation The Legal Services Corporation Act was signed by President Richard Nixon on July 24, The Corporation absorbed the existing OEO programs and at the local level nothing seemed to immediately change. During the OEO era and thereafter, there continued to be upheavals and political struggles. In 1977 I spoke to a group of lawyers about the work of the Texas legislature and the political climate and commented: The work ethic remains a strong factor in Texas. The poor are viewed with anger and hostility, chastised as a group as responsible for their failure to produce. In addition, rural Jeffersonian attitudes about government are very popular. The federal government is viewed with suspicion and hostility. The mood is the less government the better. Dolph Briscoe perhaps personifies this sentiment better than anyone else. And Dolph is very popular. In this climate, progressive, thoughtful, and sensitive consideration of welfare proposals is not likely to occur very often. In the consumer area, a business backlash is developing all across the country... In Texas, consumer groups are in retreat, even with the help of the Texas Attorney General. In 1980, local Bar Associations across the State of Texas presented resolutions at the Texas State Bar Convention asking the State Bar to oppose continued financing of the Legal Services Corporation by the federal Government. The Erath County Bar Association s Resolution claimed that legal services for the poor was already being adequately provided by private attorneys in a pro bono or similar fashion and condemned assistance to undeserving clients. The proposed Resolution was defeated by a margin of three to one, but the sentiments it expressed have not been entirely extinguished. What happened to the OEO lawyers? Some moved to other cities; many are still here. A few became famous or leaders in our profession. Hector Uribe, the third Director, became a State Senator. A few years ago he tried acting and played the rich Mexican in the film No Country for Old Men. Federico Peña became Mayor of Denver. Thereafter, President Clinton appointed him to serve in his cabinet as Secretary of Transportation and later as Secretary of Energy. Kent Morrison, a Reggie who specialized in low income housing cases, became the second Director of EPLAS. He was then recruited to become, in Washington, Director of the Operations Division and special assistant to the Director of the OEO s Office of Legal Services (OLS), which ran the nationwide OEO legal services program. With a management change at OLS after President Nixon s reelection (Kent reports his door connecting with the OLS Director s office was padlocked shut to unsuccessfully, he says keep him from leaking documents to the National Legal Aid and Defender Association), Kent entered private practice with the Washington office of Jones Day, where he became a partner. In 1973 and 1974, while with Jones Day, he worked with Louis Oberdorfer and David Tatel (both subsequently federal judges) on the transition from the OEO legal services organization to the new LSC. In 1979 Kent was one of the founding partners of Crowell and Moring, a Washington D.C. firm now employing over 500 lawyers and maintaining offices around the United States and overseas. At Crowell and Moring, Kent has been a Chambers-ranked leader of the government contracts law bar while continuing to handle various pro bono cases on behalf of poor clients (one seeking to preserve affordable housing for poor residents at landmark location in the District of Columbia that took eight years to successfully resolve). With others, he has encouraged the development of a culture in his firm that is exceptionally committed to providing pro bono work to the needy. Crowell & Moring is a leader that that regard in Washington, having the District s first pro bono partner position and donating around a million dollars annually in pro bono hours for assistance to the needy. Continuing his own work for affordable housing for the poor, Kent now serves on the Board of Directors of the Homeless Persons Representation Project (HPRP), a Maryland non-profit that, besides providing legal services itself, trains private lawyers, among other things, to work with veterans who have been unable to obtain benefits to which they are entitled, thereby assisting them in getting affordable housing. Kent is also the original promoter/creator and now longtime treasurer of the Crowell and Moring Foundation. The Foundation annually funds at least one Equal Justice Works Fellow and grants to charitable organizations that focus on education and other
11 11 services for children in need. Has anything changed? There is not much real justice for the poor and the middle class in our expensive, adversarial fee for service system. The problem that continues to confront the profession is how to provide meaningful legal services to all Americans at a price that is affordable. Although funding for the Legal Services Corporation has been controversial, there has been change, public funding for legal services in a number of areas which formerly were the domain of the private Bar. Supported by women s advocacy groups, states have passed reciprocal child support enforcement legislation. States, counties, and cities have funded child support collection offices. Many law enforcement agencies now provide legal services to those who seek protective orders from threatened family violence. The federal government funds programs to provide legal assistance to the developmentally disabled. In addition, the bitter opposition to publicly funded legal services has somewhat subsided. Former legal aid lawyers, such Hector Uribe, Federico Peña, and more recently LSC alumnus El Paso State Senator José Rodríguez, have been elected to political office. Others, like Kent Morrison, have entered private practice while remaining keenly sensitive to the needs of our less fortunate citizens. What can be done? The organized legal profession knows that it is in the profession s best interest to provide justice not only to the corporations who can afford it but also to the public at large. The organized Bar supports public funded legal services for the poor, but it is not enough. Our profession may be at a crossroads. Perhaps computers and the Internet will provide opportunities for the profession that will open the doors of justice to millions who in the past have been denied access to reasonable and affordable dispute resolution. It is a consumer issue, an important consumer issue challenging our profession today. It will up to the next generation of American lawyers to try to find the right answers. CLINTON CROSS is an Assistant El Paso County Attorney assigned to the Criminal Unit. Spoliation In Texas after Brookshire Brothers Ltd. v. Aldridge 2014 Tex. LEXIS 562 (July 3, 2014) By La u r a En r i q u e z & Mo n i c a Pe r e z Spoliation is not an independent cause of action in Texas Trevino v. Ortega, 969 S.W2d 950, 969 (Tex ). However, some Plaintiffs plead spoliation in their petition seeking a jury instruction for the failure to preserve evidence. The Texas Supreme Court recently addressed the standards of a spoliation claim and the parameters of a trial court s discretion to impose such sanctions in Brookshire Brothers v. Aldridge. In this case, Brookshire Brothers preserved the surveillance footage of plaintiff s slip and fall beginning several minutes before the fall to one minute after the fall. However, Brookshire allowed any additional footage to be erased pursuant to its common retention policy. The trial court allowed the jury to hear evidence regarding whether Brookshire Brothers spoliated the video and submitted a spoliation instruction to the jury. However, there was no indication that the decision regarding the amount of footage to preserve was based in any way on what additional footage would have shown or to purposefully conceal relevant evidence. The Texas Supreme Court reversed the Court of Appeals judgment and remanded the case for a new trial stating that the court abused its discretion because there was no evidence that Brookshire Brothers intentionally concealed or destroyed the video. The Supreme Court reaffirms that there is no duty to preserve evidence until a party knows or should know of a claim and only if the evidence is relevant. The Court also states that the sanctions to be assessed depend on the specific conduct. Additionally, the Court states that a spoliation instruction is warranted only when discarding the evidence is done intentionally to conceal evidence or when it involves the actual subject matter at issue in the case. The Court further explains that the standard to determine whether spoliation has occurred, and the parameters of a trial court s discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury, involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. The spoliation findings and any sanctions are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Therefore, any evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury, except if it relates to the substance of the lawsuit. If there is a finding of spoliation, the trial court has broad discretion to impose a remedy that must directly relate to the conduct giving rise to the sanction and may not be excessive. The failure to adhere to these rules was an abuse of discretion by the trial court in this case that mandates a new trial for Defendant Brookshire Brothers. LAURA ENRIQUEZ is an shareholder in the firm of Mounce, Green, Myers, Safi & Galatzan specializing in personal injury defense litigation. Monica Perez is an Associate at Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C.
12 12 Las Siete Partidas By N. Je s s i c a Lu j a n It is important to note the long-standing cultural traditions, minds, and documents that have affected jurisprudence in Texas because these artifacts of the past hold those in the legal profession to the highest standards of integrity and virtue in the present. One such work is Las Siete Partidas, a beautiful doctrinal letter that is commonly regarded as the most significant law code of the Middle Ages. King Alfonso X of Castile commissioned the compilation and synthesis of various laws into Las Siete Partidas. The Code was first published in 1256, but needless to say, it remained an integral part of Spanish and Mexican law well through the nineteenth century. This article discusses how the Spanish and Mexican legal culture, through Las Siete Partidas, influenced the Texas Supreme Court. Judges, justices, and arbitrators do not render decisions in a factual and legal vacuum their responses reflect the interaction of many factors including cultural heritage and geographic location. 1 A study of the various cultural heritages that impacted the current legal system in Texas features the rich influence of Las Siete Partidas. Las Siete Partidas is broken into seven parts, and each of the seven parts begins with a letter of King Alfonso s name. This structure alludes to Aristotle s teachings that all things are created and divided in seven manners. Seven was a very important number at that time, and still is: seven heavens, seven days of the week, seven liberal arts, seven wonders of the ancient world, etc. Seven was perceived to be a number of God and Las Siete Partidas is a book for the service of God and the common benefit of nations. First Partida, Title 1. The Code begins by explaining its structure and organization, and then states that these laws are ordinances to enable men to live well and regularly according to the pleasure of God, and also, as is proper, to live a good life in this world Such is the calling we as attorneys or officers of the court have, to enable men to live well and regularly. From its inception, Las Siete Partidas influenced Texas law in many ways, particularly in the area of procedure, property law, water land law, and family law. Much of the Southwestern United States was under Spanish (and later, Mexican) rule until the fourth and fifth decades of the 19th century. Texas present legal system is based on common law, which was adopted (but not entirely) as the law of the Republic of Texas in 1840, and Castillian law. 2 A study of jurisprudence of the Texas Supreme Court requires the inclusion of Hispanic culture because Spaniards, Mexicans, and Tejanos, each a non-english-speaking group, played a significant role in shaping the Texas Supreme Court s jurisprudence. 3 Spanish law has influenced our jurisprudence in many ways, such as: First, Spaniards living in Texas had to resolve disputes between themselves without the benefit of trained lawyers. As a result, Spaniards were never committed to technical pleadings. Texans for the most part abandoned the English forms of action and instead adopted notice pleading. Second, Spaniards did not have a divided court system. Texans followed suit by abandoning courts of equity and courts of law. Third, Las Siete Partidas protected debtors by not allowing creditors the right to deprive them of the tools of the trade they needed to carry on a business. Early Texans liked this concept. The Texas exemption statutes track the spirit of the protections first set out in Las Siete Partidas. Fourth, Spanish community property law was retained. Fifth, Spanish law relating to land title, mineral rights, and contracts, although never fully adopted by Texas courts, has often influenced judicial debate. Finally, some aspects of Spanish family law have been adopted. Texas judges still cite Las Siete Partidas as authority for their arguments, sometimes for the majority view and sometimes in dissent. Although these cases are too numerous to mention here, one example may be of interest. Justice Eva Guzmán of the Supreme Court of Texas, who only a week ago was the featured speaker at the MABA banquet here in El Paso, referenced Las Siete Partidas when she stated in a dissenting opinion that, Given the historic presumption of the public s right to use the dry beach, dating back to the days before the Republic, it is hardly definitive that an ordinary grant of the nature of the Jones and Hall grant automatically extinguished all public use of the shore, even when title shifted. Severance v. Patterson, 370 S.W.3d 705, 746 (Tex. 2012). Justice Guzmán probably relied on the section of Las Siete Partidas that states, Every man can build a house or a hut on the sea shore which he can use whenever he wishes and so long as he is working there or is present no one else should molest him so that he cannot use and be benefited by all these things. Third Partida, Title 28, Law 4. In the end, the noble ends of Las Siete Partidas are visible in today s laws and policies and are promulgated by attorneys and officers of the court. As we celebrate the 800th anniversary of Magna Carta, and its influence on American jurisprudence, we should also remember King Alfonso, his noble commitment to the law, and his everlasting contribution to the Texas legal system through Las Siete Partidas. N. JESSICA LUJAN Is a candidate for a Juris Doctorate degree, May, 2016, at the University of San Diego School of Law. She was recently selected to receive a scholarship from the San Diego La Raza Lawyers Association Scholarship Fund for her community work. When not attending law school, she resides in El Paso. 1. David A. Furlow, The Loan Star Republic s Supreme Court Wove the Fabrics of Texas Law from the Threads of Three Competing Legal Traditions (Part 1: Material Differences in Legal Culture), available at (September 19, 2014 at 11:30 AM). 2. Richard R. Orsinger, 170 Years of Texas Contract Law- Part 1, available at (September 19, 2014 at 11:30 AM). 3. David A. Furlow, The Loan Star Republic s Supreme Court Wove the Fabrics of Texas Law from the Threads of Three Competing Legal Traditions (Part 1: Material Differences in Legal Culture), available at (September 19, 2014 at 11:30 AM).
13 13 Senior Lawyer Interview Judge Charles R. Schulte By Cl i n t o n F. Cr o s s Charles R. Schulte died on August 2, 2014 at the age of 92. In his honor, we re-publish the Senior Lawyer Interview that we first published in the Bar Bulletin nine years ago. Ed. Cross: Tell me about your family and your childhood. Schulte: I was born in St. Louis, Missouri. My father was an architect. When I was eight, he brought the family to El Paso. I went to Rusk Elementary and Austin High School. My family moved and I transferred to Ysleta. I was student body President at Ysleta High School. I was also Vice President of the El Paso Interschool Council. Eddie Feuille, Ricky Feuille s brother, was the President. Alice Stovall was the Student Body Secretary at Ysleta. I ended up marrying Alice fifty-seven years ago. During our college days, Alice s work for the telephone company kept food on the table. Things were tight and at Thanksgiving we couldn t afford the whole turkey, and Alice would stuff a turkey leg. When I graduated from high school and finished one year at El Paso College of Mines, my father was Chief of Army Engineers for the Atlantic side of the Panama Canal Zone. He put me to work there first in the warehouse, then on the France Field Airport and then as a foreman dispatcher in the motor pool. On the lighter side, during this period, I took part in the Canal Zone Theater and announced in Spanish and English on a Panamanian radio station at times. I then joined the Army Air Corps, served a little over two years guarding the jungle emplacements and moved to administrative work. I was discharged as a sergeant in Cross: Siblings? Children? Schulte: I have four surviving brothers and a sister. I was the oldest. Jack is a retired pediatrician; George is a retired engineer from Howard Hughes; Harry is a retired accountant and lives here as does my sister Barbara who is married to Stanley Stephenson, retired from Phelps Dodge. Our children, Perry Kay, Bob Jr. and Don Park are all in education. Perry and Don both have doctorates. Bob Jr., a veteran of the Air Charles R. Schulte Force, has his Masters. Cross: Why did you decide to pursue a legal career? Schulte: My high school science teacher, Frances Means, who is still in El Paso, held mock trials in her class. I had to play lawyer, and I decided I d like to keep it up. Cross: Where did you go to law school? Schulte: After my discharge from the Air Force, I returned to the College of Mines, and then went to the University of Texas School of Law in Austin. With the help of the lap back program I was able to graduate from Mines in 1949 and the School of Law in I was in Senor ROTC during law school and finished that as a Distinguished Military Graduate. The day after I got my lawyers degree I was commissioned as a second lieutenant. Later I was named as first lieutenant, JAG. Cross: What happened next? Schulte: I went into practice in El Paso with Thor Gade in the Caples Building. Together we paid $25 a month for the office and the secretary to answer the phone. Since we had only one office, when one of us had a client the other one had to run errands to attend to other business outside the office. Unfortunately, this lucrative arrangement came to an end when I was called to active duty during the Korean Conflict as an officer in the Air Force Judge Advocate Corps. I was sent to England as the legal officer for the 97th Bomb Wing, then assigned to Biggs Air Force Base here in El Paso where I completed my tour of duty. I returned to law practice, ultimately with Richard White. I also served during as an alternate City Judge. When Woodrow Bean resigned as County Judge, I was appointed Interim County Judge by Governor Price Daniels and served in that post until Glenn Woodard was elected County Judge. When Richard White ran for Congress I was his campaign chairperson. Richard got elected and I was most fortunate to have Fred Morton join me in the Bassett Tower. I continued serving in the Air Force Reserve as legal services attorney at Biggs until Biggs was closed. After that I was assigned to another reserve unite covering most of West Texas and became its commanding officer. In 1966 Governor John Connally appointed me to the 41st District Court where I served for fifteen years until At that time, Governor William Clements named me the fourth justice on the Eighth Court of Appeals, which was given criminal jurisdiction as well as civil at that time. I retired from the appellate court at the end of Cross: Any community service work during your legal career? Schulte: I have served as Chairman for the March of Dimes of El Paso. I also have been a member of the board of directors of R.E. Thomason Hospital. After retirement, I taught Legal Ethics in Adult Education at UTEP for four years. For eight years I served as a member of the Department of Defense committee for the Employer Support of the Guard and Reserve, from I also have chaired committees for the State Bar of Texas, served as lecturer at West Texas and state Judicial conferences. Cross: Church? Schulte: Alice and I are Methodist. I have in the past served on the Church Board of Stewards and Board of Trustees.
14 14 Cross: Awards: Schulte: After leaving the County Judge s post, I was pleased to receive the Conquistador Award from the City of El Paso, and I was an Admiral in the El Paso Navy. The Young Lawyers Association recognized my work on the district court and although they forgot to invite me to the banquet where the award was made I did receive the George N. Rodriguez Sr. Memorial Award for Outstanding Service. I was fortunate to receive a diploma from the Air War College, Air University in March After completing all reserve requirements, and over thirty years service, the Air Force retired me as a colonel in I was then awarded the Meritorious Service Medal and Exceptional Service Award. I was also honored to be named as a Fellow in the Texas Bar Foundation. Cross: What was the most interesting or important cases that you ever worked on? Schulte: I presided as a trial judge over one of the earliest pollution cases in the country and the resulting lead poisoning cases that followed. In the mid 1970 s, the State of Texas and the City of El Paso brought suit in the 41st District Court against ASARCO. The proceedings began in February and continued until May with experts from throughout the USA. As a result major injunctive relief was granted and substantial penalties assessed. Smeltertown was abandoned. The case was a pioneering case at the time and was covered by Paul Harvey and many others. Cross: You have an opportunity to advise a young lawyer about to begin practice. What do you say to him? Schulte: Integrity. Integrity, in the long run, more important than anything else. SPOTLIGHT ON AN EL PASO ATTORNEY Alejandro Acosta, Jr. By Cl i n t o n F. Cr o s s CROSS: Tell me about your parents and your childhood. ACOSTA: I say this often, I was proud to be born in El Paso, Texas on Friday, the 13th, My dad, Alejandro Acosta, Sr., was a master sergeant in the U. S. Army on the day I was born at William Beaumont General Hospital, which in those days were just barracks on the corner of Dyer and Fred Wilson. My mom, Lucy G. Acosta, gave birth to me at a very convenient time, which allowed my dad to spend two weeks with me before he went off to the Korean War. I did not see him again until two years later when he returned from the war. My mom had a large extended family who helped take care of me while she went to work every day. My dad s childhood was less fortunate. He was an orphan at the age of 11 and had his older brother, who was 13, as his only family. Obviously, they both started working immediately after their parents passed away. When my dad returned home from the Korean War, and with the help of a V.A. loan, my mom and he purchased a modest home in a new neighborhood in what is now central El Paso. They purposely chose this neighborhood so we could attend the best schools in El Paso, which were Coldwell Elementary and Austin High School. It was a great neighborhood to grow up in with lots of kids. Three years later, my brother, Daniel, was born (now a Harvard graduate and associate general counsel for Farmers Insurance Company). My dad and mom were great parents as they provided us with a wonderful childhood. They instilled us with a great work ethic and stressed the value of a great education and allowed us to participate in athletics as long as we kept our grades up. My dad taught us toughness and to never give up. My mom taught us respect for others and to give back to your community. Our parents did not accept excuses for failure but instead placed an emphasis on winning. At the age of 63, that is still what drives me to this day. My dad worked in the data processing department of El Paso Natural Gas for 25 years. After his retirement, he graduated from El Paso Community College with the highest of honors. He was handed his associates degree diploma by his wife, my mom, who was the first female trustee of the El Paso Community College. She, of course, later co-founded Lulac Project Amistad, which, to this day, provides valuable assistance to the elderly in our community and all along the border. CROSS: What led you into a career in law and how did it evolve into your present law practice? ACOSTA: For those of us that grew up in the 50 s and 60 s, we all remember television in black and white. There were timeless programs like Rawhide, Gunsmoke, Superman, American Bandstand and a good program about a lawyer named Perry Mason. I realized at a young age that was what I wanted to do when I grew up. I did take a different path to try and prepare myself to be a lawyer. Instead of joining the debate and mock trial teams, I chose athletics, which were a lot more fun. In elementary school, I played football, basketball and baseball and in high school I wrestled and played football. I had a great experience and opportunity to wrestle in college at the University of Texas at El Paso and the University of New Mexico. In my opinion, athletics really provided a training ground for a young trial lawyer. It taught me to never give up and when you get knocked down, get up, dust
15 15 yourself off and get back in the game. As a result, during my senior year in college, I developed a back-up plan to teach and coach if I didn t get accepted to law school. Fortunately, I was accepted and I attended George Washington Law School in Washington, D.C. I was excited because I had never traveled east of Corpus Christi and I thought it would be a great new world. After the first semester of law school exams, my first of five children was born. I had to find a full-time job to support my family. I was fortunate to receive a clerkship with the United States Department of Justice, Civil Rights Division. I worked full-time and went to school full-time. Before graduation, I received job offers from firms in El Paso and Phoenix, Arizona. I chose to come back home and I began my practice with a small firm named Diamond Rash. In 1979, I moved to Phoenix and practiced with a large firm, O Connor Cavanaugh, principally in the areas of commercial and construction litigation, products liability and insurance defense. I returned to El Paso and continued my trial practice with several of El Paso s finest firms. I have learned many things from the outstanding lawyers that practice in El Paso and the very good judges that preside over the El Paso docket. I believe I have evolved as a person along with my present law practice. Currently I am the Executive Partner at Bickerstaff Heath Delgado Acosta. We have offices in El Paso, Austin, Houston and the Rio Grande Valley. My partners are some of the best lawyers in Texas, many of which are well-known and respected for our firm s representation of governmental entities, such as water utilities, cities, counties, school districts and colleges. My childhood friend and long-time law partner, Hector Delgado, represents private industry, which includes U.S. and international companies. Hector and I are also partners in the joint venture firm of Delgado Acosta Spencer Linebarger & Perez LLP, which collects delinquent taxes for all of the taxing jurisdictions for El Paso County. He has been a great partner and a close friend. My practice is still a litigation practice that consists of commercial, products liability, insurance defense and the representation of El Paso Water Utilities Public Service Board. Cross: Tell me about your profession and community service involvement. Acosta: In 1979, I was elected President- Elect of the El Paso Young Lawyers Association and was awarded the Outstanding Young Lawyer Award in In 1988, I was elected and served as President of the Texas Young Lawyers Association (TYLA). I was the first minority bar president elected to lead a state-wide bar organization in the history of the United States. That year, TYLA was awarded the Comprehensive Award of Achievement for the most outstanding Young Lawyers Association in the country. I also served on the State Bar Board of Directors and its executive committee from 1987 to I served on the Texas Supreme Court Rules Advisory Committee from 1993 to 1996 and also served on the State Bar Judicial Relations Committee. In addition, I am presently a member of the Product Liability Advisory Council and the International Association of Defense Counsel. In , I served as President of the El Paso Sun Bowl Association. We led a successful effort to pass a rental car tax to support the Sun Bowl game and its activities. The Sun Bowl generates approximately $14 million for the El Paso community each year. I have also been on the Board of Directors of the El Paso Hispanic Chamber of Commerce, the local chapters of the United Way and the American Heart Association, and numerous other community service organizations. I also served as Chairman of the Board of Cathedral High School and Loretto Academy. CROSS: You are associated with an Austin law firm. Have you had an opportunity to practice outside El Paso? ACOSTA: Starting in the mid 1990 s to the present time, I have been fortunate to be involved in what has become to be known as Mass Tort Litigation. This was the filing of multiple actions involving products liability claims against several pharmaceutical companies in multiple jurisdictions. These claims were not only filed throughout Texas but also across the nation. Plaintiffs, for the most part, were being represented by the most well-known and successful plaintiffs firms throughout the country. The pharmaceutical industry responded by engaging some of the best defense firms and defense lawyers throughout the country. I was lucky enough to be chosen as a member of these large defense teams. I was involved in discovery that occurred throughout Texas, the United States, and even as far away as Copenhagen, Denmark. Our defense trial teams represented clients in cases involving birth control devices, weight reduction medication, and cough medication. Our teams tried some of these cases to jury verdict, but in the end most cases were settled. It was, of course, a remarkable experience to work with and against some of the best lawyers in the country. CROSS: What is the focus of your El Paso practice? ACOSTA: For a number of years now, I have represented El Paso Water Utilities Public Service Board. In the desert, water is as precious as gold. Recently one of our most interesting cases was El Paso Apartment Association v. City of El Paso. The El Paso Water Utilities Public Service Board (EPWU) is a stormwater drainage utility with the power to set stormwater rates for its customers. EPWU set its stormwater rates based on the amount of its customers impervious cover. El Paso Apartment Association, along with a number of other commercial entities with large amounts of impervious cover, challenged EPWU s stormwater rates in Federal District Court on the basis of three theories. The first theory was that EPWU was in violation of the Fair Housing Act. El Paso Apartment Association argued that Hispanic residents make up the majority of residents living in apartments, and the higher stormwater rates for apartment buildings would result in disproportionately higher stormwater rates for Hispanic residents versus non-hispanic residents within the City of El Paso, thus violating the Fair Housing Act. The second theory was that EPWU had violated the Equal Protection Clause of the 14th Amendment. El Paso Water Apartment Association claimed the stormwater rate design did not have a rational basis for its design. The final theory was a state law claim in which El Paso Apartment Association argued that EPWU s stormwater rates were not a bona fide fee, but instead an occupational tax, which can only be met with different criteria. El Paso Apartment Association sought a temporary restraining order and a temporary injunction, and both were denied. EPWU then filed a motion for summary judgment, which was granted. El Paso Apartment Association appealed the second and third theories of its case to the 5th Circuit, where it argued the Federal District Court erred in granting the motion for summary judgment. The 5th Circuit rejected El Paso Apartment Association s argument. It determined that EPWU, acting as a governmental entity, had a rational basis for the design of the stormwater rates and rejected the occupational tax argument, and thus affirmed the Federal District Court s summary judgment.
16 16 CROSS:You have experienced the practice of law in many jurisdictions. Would you recommend to a law school graduate to consider moving to El Paso to practice law? ACOSTA: I would strongly recommend that they move to El Paso and practice law. I just read Laura Enriquez s President Page, and I couldn t agree with her more when she says El Paso has the finest talent in the State of Texas. I can tell you that I have worked shoulder-to-shoulder with the best defense lawyers in the country. I have also sat across the counsel table from the best plaintiff s lawyers in this country. I think I have experienced the right to say that our lawyers and our judges are as good as the best our profession has to offer. Lastly, El Paso is progressing and evolving into a city of great opportunity. My wife, Rene, and I have helped put five kids through college, graduate school and law school. All five of my children went away to school. All five have come back to professional careers in El Paso. That says a lot for the progress of our City. The best part is that I get to see my four grandchildren play football, tennis and volleyball. CLINTON CROSS is an Assistant El Paso County Attorney assigned to the Criminal Unit. Adobe Acrobat Portfolio - Preparing Your DYNAMIC Trial Notebook b y Da v i d J. Fe r r e l l In Adobe Acrobat you can assemble multiple files into an integrated PDF portfolio that can be used as a dynamic comprehensive trial notebook. You can combine in one computer file, many files of different formats, created in different applications, without converting them to PDF. For example, you can assemble all the documents for a specific trial, including scanned (police, medical, etc.) reports, messages, spreadsheets, photographs, videos, CAD drawings, audio files (911 calls, etc.), PowerPoint presentations, and many other types of trial data that you want to present. The original files retain their individual identities, but are still part of the PDF Portfolio file. Each component file can be opened, read, edited, and formatted without affecting the other files in the PDF Portfolio. That means you can have all your good stuff in one place. Rather than trying to explain in great detail what all this means I will direct you to an Internet link to a paper I wrote in 2009 for a State Bar of Texas seminar in Houston, 3rd Annual Law Practice Management Course, Working Smarter in Hard Economic Times. You can go to the Texas Bar CLE website and pay $29 for this paper or you can download it at the link below free. The State Bar has the copyright, but since I wrote it I have the preemptive copyright and I invite you to download the forty-seven page paper, read it and experiment with it. It is a big file, almost fifty megabytes, so depending on your download speed it might take up to five minute to down load it. Be patient. I think you will enjoy the paper once you have it. The paper is accessible with the free Adobe Acrobat reader that I am sure you already have. If not, Google Acrobat Reader and you will be directed to a site that provides a free download of the reader software. HERE IS THE LINK TO MY PAPER - DAVID FERRELL is an El Paso attorney specializing in probate and criminal law. He also assists law firms in development of their computer trial and law office technology. He serves on the WEB Services Committee of the State Bar of Texas Classified Ad:: Newly remodeled one bedroom apartment in Central El Paso for rent: 1717 Raynor (near Memorial Park), refrigerated air, washer, dryer, garage with automatic garage door opener. Fireplace, new dishwasher and garbage disposal; wood floors. $ per month. Tenant pays gas and electric bills. Landlord pays water bill. Call Stuart Leeds at
17 17 Banking on Justice November is Texas IOLTA Prime Partner Bank Month In 1984, the Supreme Court of Texas created the Interest on Lawyers Trust Accounts (IOLTA) Program as a means of providing funds for legal aid. For many years, the system worked as it was intended, and played a major role in the funding of the state s legal aid system. Fast-forward 30 years and the picture has changed drastically. Due to historically low interest rates, the revenue generated from the program has plummeted. As a result, lowincome Texans are forced to face serious, complicated and sometimes life-threatening civil legal issues on their own. In 2007, IOLTA revenue was $20 million; in 2014, it is projected to total only $4.2 million a decline of more than 75 percent. Since 2007, the Texas Access to Justice Foundation has experienced a loss of $99.3 million due to declines in funding from the Interest on Lawyers Trust Accounts (IOLTA) program. More than 5.8 million Texans qualify for legal aid, and many are turned away due to a By Be t t y Ba l l i To r r e s, lack of resources. The decline in IOLTA revenue resulted in a crisis in access to the justice system for low-income and poor Texans. Fortunately, more than 60 Texas banks have helped to address the problem by becoming Prime Partner banks. Prime Partner banks voluntarily pay higher interest rates on IOLTA accounts, helping close the gap in funding. These banks increased IOLTA revenue by millions throughout Texas. In November, we recognize the important role of these banks during Prime Partner Bank recognition month. El Paso-area Prime Partner banks include: First Savings Bank PlainsCapital Bank Funds from the Prime Partner program help the Texas Access to Justice Foundation provide assistance to Texas families seeking justice for an abused child, receiving health benefits for an elderly person, or getting a family back in their home when faced with a foreclosure or eviction. The Prime Partner program needs help from the legal community to keep up the momentum. You can: Bank with a Prime Partner bank to strengthen the program and encourage additional banks to join the cause. Thank your local Prime Partner bank for their assistance in helping low-income Texans and join the I Bank of Justice campaign to highlight your support. A more direct way to help is to contact eligible banks and ask them to join the Prime Partner program. Visit the Texas Access to Justice Foundation website at to see a list of eligible banks and to learn how to recruit new Prime Partners. With the support of the legal community, we ll continue to close the gap in funding for legal aid. Banking with a Prime Partner is banking on justice. BETTY BALLI TORRES Is Executive Director of the Texas Access to Justice Foundation The El Paso Association of Legal Professionals (EPALP) Will hold its monthly education meetings as follows: Wednesday, October 8, :00 Noon, El Paso Club Guest Speaker will be Larry Phifer who will speak about Risk Allocation and Indemnification Wednesday, November 12, :00 Noon, El Paso Club Guest Speaker will be Charles Scruggs who will speak on Worker s Compensation RSVP to Carol Gutierrez at or at x 471 Please be our guest at our Happy Hour hosted by El Paso County Trial Lawyers Association El Paso Young Lawyers Association El Paso Bar Association Thursday, October 16, :30 p.m. 7:30 p.m. ANSON Eleven ~ Upstairs Garden Room 303 North Oregon St, Ste. 110 Drinks and appetizers courtesy of our sponsors: HMR Funding Davis Settlement Partners If you have any questions, please call Lisa Mellors at 512/ or at
18 18 W. Reed Leverton, P.C. Attorney at Law Mediator Arbitrator Alternative Dispute Resolution Services 300 Ea s t Ma i n, Su i t e 1240 El Paso, Texas (915) FAX: on-line calendar at: Experience: Licensed Texas Attorney; Former District Judge; Over 900 Mediations Commitment to A.D.R. Processes: Full-Time Mediator / Arbitrator Commitment to Professionalism: LL.M. in Dispute Resolution Your mediation referrals are always appreciated.
20 EL PASO BAR ASSOCIATION 500 E.San Antonio L-112 El Paso, Texas (915) PRESORTED STANDARD U. S. POSTAGE PAID EL PASO, TEXAS PERMIT NO Joint Bar Association Holiday Party Thursday, December 4, 2014, 5:30 7:30 p.m. 22nd Annual El Paso Criminal Trial Seminar November 14 & 15, 2014 Inn of the Mountain Gods 12.0 hours of Texas and New Mexico CLE El Paso Community Foundation, 333 N. Oregon, 1st Floor Join us for Food, Drinks, Laughter, Music, a Silent Auction and Holiday Cheer!!! For more information or if you would like to donate to the Silent Auction, contact Nancy at The Silent Auction benefits the El Paso Bar Foundation. Cost: $300 for attorneys licensed 3 years or more as of the date of the seminar $250 for all others; No charge for full-time judges hearing criminal cases. You must register by November 5th. Block of rooms has been reserved at Inn of the Mountain Gods, call 1/800/ ext. 7660, tell them you are with the El Paso Criminal Law Seminar. For more information contact Elena Aguilar at
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