Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

After waiting more than a decade for some guidance from the Texas Supreme Court on the meaning of "net worth" in discovery matters, we thought we were going to get just that--at least until last Friday, that is.  In last Friday's orders, the high court granted the motion to dismiss filed by the real parties in interest.

I understand that the basis for the motion was that after the supreme court expressed interest and requested briefing, the real parties in interest went back to the trial court and asked the court to vacate its discovery order, which the court did.  The real parties then sought dismissal of the mandamus proceeding, and it appears that the court obliged.

I've written a couple of prior entries about the In re Jacobs case.  Those entries may be found here and here, for those curious to read more about Jacobs.   

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A few months back, I wrote about a mandamus opinion from the Houston Fourteenth Court of Appeals, involving discovery of net worth.   The majority and concurring opinions were groundbreaking in terms of their discussions. 

This Spring, I wrote an article that appeared in the Appellate Advocate and discussed discovery of net worth.   I noted that the Relators from the In re Jacobs case had filed a petition for writ of mandamus with the Texas Supreme Court revisiting the Court's opinion in Lunsford v. Morris, and asking whether additional protections should be implemented to protect parties from overly invasive discovery requests into net worth.

Today, the Texas Supreme Court has set the petition for writ of mandamus for argument at a date to be determined later.  The Court's order may be found here.  The briefs in the case may be found at this link.  Accordingly, it appears that after many years of waiting (and false starts), practitioners may finally get some additional guidance from the high court on discovery of net worth.

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The Dallas Bar Association's Appellate Law Section is having its monthly CLE luncheon on Thursday, June 17th at Noon at the Belo Mansion.  This month's speaker is K&L Gates attorney Chris Kratovil.   Chris will be speaking on "Federal Mandamus and the East Texas Venue Wars."

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With e-filing in the court of appeals right around the corner, there was a lot of talk about technology and e-briefs at the UT appellate CLE earlier this month.  Some Texas Supreme Court justices even discussed their use of technology (Chief Justice Jefferson reads petitions for review on his Kindle), as well as their favorite blogs.

Our friend Don Cruse over at Supreme Court of Texas Blog gave a great presentation with Supreme Court Clerk Blake Hawthorne about the future of briefing and how to publish a simple e-brief.  He links to the presentation here.  For all those following the trends, technology has caught up with the practice of appellate law.  Soon, e-filing will be mandatory (as it already is in the Fifth Circuit), and all records and briefs will be electronic.  Appellate lawyers should investigate the benefits of providing the courts with more resources to decide appeals.  And with the costs of e-briefs coming down, the expense argument has much less force today than a few years ago when e-briefs were cutting edge.  

The e-train is coming.  We better get on board.

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Although we have known since last year that Justice Harriett O'Neill did not intend to seek re-election in 2010, she had not yet announced when she would leave the bench.  That announcement came on Friday when Justice O'Neill notified Governor Perry that she will leave the Texas Supreme Court on June 20 after more than a decade of service on the Court.  She has not yet announced her future plans.  

 The Court's press release may be found here.

On a personal note, I am sad to see Justice O'Neill leave the bench.  Female role models are hard to come by.  So I look forward to hearing what she plans to do next and wish her well.  

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Byron Henry and I are pleased to announce that Hilaree Casada has joined the Appellate Practice Group at Cowles & Thompson.  Hilaree has distinguished herself among appellate practitioners.  She was recently named by D Magazine as one of the Best Women Lawyers in Dallas.  She is one of nine appellate practitioners on that list. 

Cowles & Thompson now has three attorneys who are board-certified in Civil Appellate Law by the Texas Board of Legal Specialization. Hilaree's addition to the firm means that we will have another blogger for our appellate blog.  What that means for you--our audience--is more content.  

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This little news flash nearly escaped my attention.  Governor Perry has appointed Associate Justice Terry Livingston to be the new Chief Justice of the Second Court of Appeals in Fort Worth.  Chief Justice Livingston succeeds Chief Justice John Cayce, who stepped down late last year to return to private practice.  The Governor's news release may be viewed here.

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The Collin County, Frisco, and Plano Bar Associations are co-sponsoring a happy hour with special guests Justices Robert Fillmore and Lana Myers of the Dallas Court of Appeals at The event will be held from 5:30-7:00pm on Thursday, April 29, 2010 at Zea Woodfire Grill, 8100 Dallas Parkway, Plano, Texas 75024.  Members of the bench and bar are welcome to enjoy complimentary food and drink, and meet the Court's two newest justices. 

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Dallas Court of Appeals Justice Robert Fillmore will speak on the new rules and procedures governing electronic filing at the court of appeals on Thursday, April 15th at Noon at the Belo Mansion.  Here's an opportunity to get an hour's worth of CLE, meet with one of the new Justices on the court, and learn about some new technology.

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The Appellate Law Section of the Dallas Bar Association will have its final meeting of the year on Thursday, December 17th, at noon at the Belo Mansion.  Kirsten M. Castañeda of Locke Lord Bissell & Liddell will present an United States Supreme Court Update.  Also, as this is the annual business meeting, election of officers for 2010 will take place.

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The Texas Supreme Court has adopted new procedures relating to the submission of electronic copies of briefs submitted to that court.  The procedures address matters such as file names, the manner of submitting electronic copies, and contents of the electronic copies.  For complete details, follow this link.

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Governor Perry has made two recent appointments to our intermediate appellate courts.

Today, he appointed Lana Myers to the Fifth District Court of Appeals at Dallas.  Myers has served as an administrative judge for the Dallas County Criminal Criminal courts.  Myers will fill the place on the court that opened up when Justice Carolyn Wright was appointed to Chief Justice of the Dallas Court of Appeals.  The Governor's press release regarding the appointment may be viewed here.

The Governor also appointed Tracy Christopher to the Fourteenth District Court of Appeals at Houston.  Christopher was previously Judge of the 295th District Court of Harris County.  Christopher fills the place on that court, which opened up when the Governor appointed Justice Guzman to the Texas Supreme Court.  To view the Governor's press release regarding this appointment, see this link.

Both justices will stand for election in 2010.

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The Appellate Law and Family Law Sections of the Dallas Bar Association are hosting a luncheon to honor outgoing Fifth District Court of Appeals Chief Justice Linda Thomas.  The luncheon will be Wednesday, November 4, 2009, at Noon at the Belo Mansion.   Those desiring to attend should RSVP to Alicia Hernandez at the Dallas Bar Association.

The next meeting of the Appellate Law Section of the Dallas Bar Association is scheduled for Thursday, November 19, 2009, at Noon, at the Belo Mansion.  The scheduled speaker is Kendall Gray who will speak on the subject of "Being Excellent--More Ethics than You Require."  This presentation has been approved for 1 hour of ethics credit.

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Governor Rick Perry appointed Justice Carolyn Wright to succeed Chief Justice Linda Thomas on the Fifth Court of Appeals at Dallas effective October 31, 2009.  Justice Wright will be the first African American to serve as chief justice of any intermediate appellate court in Texas.  The press release can be found here.

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On Thursday, October 1, 2009, the Appellate Sections of the Dallas, Tarrant, and Collin County Bar Associations will present "Practice Tips fron the Clerk's Office" and "A Candid Conversation between Appellate Judges and Lawyers."   The CLE is scheduled from 4:30-6:00 p.m. at the Omni Hotel, 1300 Houston Street in Fort Worth,  with a reception to follow.  The event will feature the Clerks of the Dallas and Fort Worth Courts of Appeals, as well as Justices Walker and McCoy from Fort Worth, and Justices FitzGerald and Murphy from Dallas.  For more information contact David Pratt at 817-336-2400 or dpratt@deckerjones.com.

On Thursday, October 15, 2009, the Dallas Association of Young Lawyers will be hosting a one-hour seminar at the Belo Mansion in Dallas in which Fifth Circuit Court of Appeals Judge Catharina Haynes, Dallas Court of Appeals Justice Carolyn Wright, Haynes & Boone appellate section chair Nina Cortell, and appellate solo Chad Ruback will share tips about the practice of appellate law.  The seminar is intended for non-appellate lawyers and those new to the practice of appellate law, but could also be a useful refresher for experienced appellate practitioners.  There is no charge to attend, and lunch will be available for purchase in the buffet line.

On Friday, October 16, 2009, the Appellate Section of the Collin County Bar Association  will present "Persuading Judges: Practical Tips on Oral and Written Advocacy."  The CLE is scheduled for noon at Ralph & Kacoo's Restaurant in Allen, Texas.  The event will feature a panel consisting of Justices Wright, O'Neill, and Fillmore from the Dallas Court of Appeals.  For more information contact Byron Henry at 214-672-2156 or bhenry@cowlesthompson.com.

The month of October is loaded with opportunities for lawyers to earn CLE credit and meet court of appeals' justices.

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The Texas State Bar's Annual Appellate Practice courses are right around the corner.  The Nuts and Bolts of Appellate Practice is scheduled for Wednesday, September 9, 2009, and the Advanced Appellate Practice course is scheduled for Thursday, September 10, 2009, and Friday, September 11, 2009.  If you can't make that date, the course will be replayed on video in Dallas on October 7th, 8th, and 9th.  For more information and for registration, click here.

The Defense Research Institute (DRI) Appellate Advocacy section is hosting its eighth Appellate Advocacy Seminar in La Jolla, California.  That seminar is scheduled for Thursday, November 5, 2009, and Friday, November 6, 2009. Distinguished speakers include Texas's own Chief Justice Wallace Jefferson.  For more information and for registration, click here.

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I am sad to learn (and report) that the appellate world has lost an icon today.  Rusty McMains passed away this morning in Corpus Christi.

As a briefing clerk at the Texas Supreme Court,  I learned that there were certain oral advocates who were in the "must see" category when they came to town to argue before the court.  Rusty was definitely in the "must see" category.  He had a deep, commanding voice and authoritative demeanor.  He was a great speaker and a long-time contributor to our educational betterment.    I remember well attending my first Advanced Appellate seminar almost 20 years ago where Rusty spoke about the court's charge. 

We are all better off because of Rusty and people like him.   I have little doubt that his golden voice will gain him access through the pearly gates.   He will be missed by many.

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The Dallas Bar Association Appellate Law Section meets on Thursday, June 18, 2009, at noon at the Belo Mansion.  Texas Supreme Court clerk Blake Hawthorne and Texas Supreme Court rule attorney Kennon Peterson will be speaking on the subject of "An Insider's View of the Texas Supreme Court."

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The U.S. Fifth Circuit Court of Appeals is preparing to amend existing rules and adopt new ones.  These amendments are mostly prompted by the movement toward electronic filing, which is projected to begin in December of this year.  But there are some proposed changes that could affect your malpractice premiums and you will want to begin familiarizing yourself with them now.   Counting of days will become actual days (inclusive of weekends).  The proposed rules are now open for public comment and may be found here.

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Governor Perry has appointed Robert M. Fillmore to fill the seat on the Dallas Court of Appeals that was recently vacated by Justice Amos Mazzant.  Fillmore comes to the court of appeals from Hunton & Williams, LLP.  According to his recently-updated resume, his background is in regulatory law.  His appellate experience is described as "the supervision of litigation teams and appellate advocacy."   For the time being, his resume with the Hunton firm may be found at this link.  The Texas State Bar shows that he is a graduate of the University of Kansas Law School in 1977 and that his primary practice area is public utility law.  The appointment is subject to Senate confirmation.

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The Collin County Bar Appellate Section will join with the Collin County Bar Association for a meeting at noon on May 15, 2009 at Ralph & Kacoo's in Allen.  Our speaker will be Justice Douglas S. Lang from the Dallas Court of Appeals.  Justice Lang will discuss his book Deeds, Not Words, professionalism, and the relationships that have shaped and guided his distinguished legal career.  Attendees will receive a complimentary copy of Justice Lang's book and one hour of ethics CLE credit.  Book quantities are limited, so come early.  The meeting is being hosted by Cowles & Thompson, P.C., Israel L. Suster Law Office, Law Office of George A. (Tony) Mallers, and Mosser Law PLLC.

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The Dallas Bar Association Appellate Law Section will be having its monthly lunch meeting at noon on Thursday, May 21st at the Belo Mansion.  The keynote speakers are Assistant U.S. Attorneys Wes Hendrix and Leigha Simonton, who will speak on "Lessons for a Serial Fifth Circuit Litigant"

Also, the section will feature Texas Supreme Court clerk Blake Hawthorne and Supreme Court Rules attorney Kennon Peterson at its monthly meeting on Thursday, June 18th. 

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On Friday, April 17th and Saturday, April 18th, the Texas Supreme Court Rules Advisory Committee will be meeting to discuss proposed changes to the Texas Rules of Procedure.  Among the proposed changes are changes that will permit electronic filings in the appellate courts.

For more information on the location and time of the meeting, click on this link.

For more information on the agenda and proposed text of the amendments, click on this link.

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The Dallas Bar Association, Appellate Law Section will have its regular monthly meeting on Thursday, March 19, 2009, at noon at the Belo Mansion.  The keynote speakers this month are Jennifer Trulock and Kathy Schatz of Baker Botts who will be speaking on employment law appeals.  This is good for one hour of CLE credit.

James Ho will speak to the Tarrant County Appellate Section on April 21, 2009, at noon at the Petroleum Club, about the Office of Solicitor General.  For more information about that event, go to this link.

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There are some interesting developments working their way through the legislature and the Supreme Court Advisory Committee that relate to the conduct of jurors.  Senate Bill 445, sponsored by Senator Wentworth, and proposed Texas Rule of Civil Procedure 265.1 would allow jurors to submit questions to witnesses during trial. 

The proposed Senate Bill would allow jurors to take notes during trial and require the courts to provide materials to jurors on which to take those notes.  In addition, it would require the Texas Supreme Court to adopt a rule that would allow (1) jurors to submit questions for witnesses anonymously; (2) counsel to object to questions out of the presence of the jury; (3) witnesses to be recalled to the stand to answer a question in open court;  (4) an opportunity for cross-examination in response to a juror question; and (5) limitation upon questions "for good cause."  The Senate Bill has had its first reading and is currently pending before the Senate Jurisprudence Committee.

Proposed Rule 265.1 calls for an instruction to be read by the judge to the jurors at the beginning of trial advising of the right to ask questions and a form would be provided to jurors upon which questions could be submitted.  The parties would be allowed to object and the court would have the discretion to reword the question.  Parties would be allowed to ask follow up questions.  Any question submitted would become part of the record.  This proposed rule is on the SCAC's agenda for discussion at its meeting today, February 20, 2009.

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The Dallas Bar Appellate Law Section has its next monthly meeting on Thursday, February 19th, at noon at the Belo Mansion.   The section will host Fifth Circuit Judge Katarina Haynes and Dallas Court of Appeals Justice Mary Murphy to discuss their experiences so far on their respective appellate courts.

Later that same day, the Collin County Bar Appellate Section is hosting a happy hour in honor of Justice Mary Murphy.  This event will be at Fireside Pies in Plano at Legacy and the Dallas North Tollway from 5:30pm to 7:00pm.

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As some of you may already know, this year America is celebrating the bicentennial of Abraham Lincoln's birth.   

To that end, the Writer's Studio/Writer's Garret is sponsering a free event. Come hear historian James McPherson discuss Tried by War: Abraham Lincoln as Commander in Chief, a celebration and tribute to the life of Abraham Lincoln.

The event is Scheduled for Wednesday, February 11, 2009 at noon at Theatre Three located at 2800 Routh Street, #168, Dallas, Texas, 75201.

James McPherson is a noted American Civil War historian and author.  He wrote the Pulitzer Prize winning Battle Cry of Freedom.

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On Wednesday, February 11, 2009, Chief Justice Wallace Jefferson will deliver the State of the Judiciary address in the House Chamber in the State Capitol.  Often the State of the Judiciary address lays out a theme and what the Judiciary hopes to obtain from the legislature in the way of funding or legislation during the particular legislative term, so the speech will be worth following to see what priorities the Chief lays out.

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Results for the 2008 Board of Legal Specialization Exam are out.  The number of board-certified appellate practitioners swelled considerably.  By my count, we have 11 new board-certified appellate practitioners.  Congratulations go to the following:

Michael Truesdale (Austin)
Leane Medford (Dallas)
Blake Hawthorne (Austin)
James Pinson (Dallas)
Bruce Thomas (Dallas)
Vance Wittie (Dallas)
Alessandra Ziek (Austin)
Chad Forbes (Houston)
Hilaree Casada (Dallas)
Richard Phillips (Dallas)
Beth Squires (San Antonio)
 

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On January 30, 2009, the Tarrant County Appellate Section is sponsoring a Brown Bag Seminar at Texas Wesleyan Law School in Fort Worth entitled "Fighting the Forum: Avoiding Litigation in Texas State Court."  Topics will include Special Appearance, Forum Non Conveniens, Arbitration, Forum Selection Clauses, and Removal and Remand--all topics that are near and dear to appellate practitioners.

The seminar will be held at the Texas Wesleyan University Law School, 1515 Commerce St., in Fort Worth, TX.  Registration begins at 12:00pm.  The seminar will conclude at 4:45pm with a reception to follow. 

Early registration is $70 for TCBA members, $95 for non-members.  Late and on-site registration is $75 for TCBA members and $100 for non-members.  For additional information, contact Sherry Jones at 817-338-4092.

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The State Bar of Texas is sponsoring its 2009 Practice Before the Supreme Court on April 17, 2009, in Austin Texas.   The one-day course will be held at the AT&T Executive Education and Conference Center located at 1900 University Avenue.

The course will cost $325 ($275 for early bird registrants) and is worth approximately 5.5 hours of CLE credit.  A tentative brochure for the program may be found at this link.

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On Thursday, January 15, 2009, the Dallas Bar Association's Appellate Law Section, ADR Section, and  Judiciary Commitee will honor retiring Dallas Court of Appeals Justice Mark Whittington for his 25 years of service to the judiciary.

A luncheon will be held at Noon at the Belo Mansion.  The regular luncheon buffet will be available ($12.76).  No RSVP necessary.

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Will the Dallas Court of Appeals grant oral argument to both sides of an appeal when only one party has requested it?  For the answer to that question, check out the Court's Internal Operating Procedures.  The answer might surprise you.  The Dallas Court of Appeals has posted its IOP's as of September 1, 2008 on its home page.  The IOP's contain helpful procedural information, such as number of copies of motions to file and a listing of fees.  But, the IOP's also contain some not-so-obvious information such as assignment of cases to panels, when voting occurs on an appeal, what happens with petitions for mandamus that are filed, and instructions to request oral argument if the opposing side has requested it and the Court has granted it.

A cover letter accompanying the IOP's promises to update the posting for the benefit of practitioners.

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We want to announce some upcoming continuing education opportunities of interest to Appellate Practitioners. 

The Dallas Bar Association, Appellate Law Section will have its monthly noon CLE on Thursday, November 20, 2008.  The keynote speaker is David Horan of Jones Day who will speak about Federal Interlocutory appeals.  Casey Kaplan of the K&L Gates firm will be the introductory speaker.  The meeting will occur at the Belo Mansion in Dallas, Texas.

The Collin County Bar Association will meet at noon on Friday, November 21, 2008.  The speaker will be Greg Lensing, Staff Attorney for the Dallas Court of Appeals, who will speak on Special Appearances and Personal Jurisdiction in Texas.  The meeting will be held at Ralph & Kacoo's on Central Expressway in Allen, Texas.

Other upcoming seminars for Appellate Practitioners are listed below:

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Texas voters elected (or re-elected) a slate of judges in the state on Tuesday.  Last week we posted a list of the appellate court races in the state. 

A list of the winners in those appellate court races is displayed below.  The final, official figures are not yet posted, but most of these outcomes are unlikely to change.

For additional statewide results, check with the Texas Secretary of State's election's webpage.

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We elect our judges in Texas.  We can debate the pros and cons of selecting judges by election, but that doesn't change the fact that we are in the middle of an election now.   Early voting goes through Friday, October 31st.  You can vote at any early voting location and all you need to vote is a valid driver's license.  If you can't vote early or don't want to, Election Day is Tuesday, November 4th.  To find your polling place for election day, follow this link.

Under this system of judicial selection, the best way to ensure selection of quality judges is an informed electorate.  To that end, here's a list of appellate candidates for judicial office with links to help you better educate yourselves.

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On Tuesday, November 4, 2008, the Tarrant County Appellate Law Section will be honoring retiring Justice Dixon Holman.  The luncheon to honor Justice Holman will take place at the Petroleum Club beginning at noon.

The cost is $20 for members and $22 for non-members and walk-ins. 

RSVP to Sherry at 817-338-4092 or sherry@tarrantbar.org

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Welcome to the Cowles & Thompson Appellate Blog.  We created this blog with the goal of providing useful information to civil appellate practitioners and to the public at large.  We anticipate that we will be posting information relating to significant appellate opinions from Texas appellate courts (inclusive of the Supreme Court of Texas).  Of course, we will also call attention to U.S. Supreme Court opinions and Fifth Circuit opinions  that have particular impact on Texas appellate practitioners. 

In addition to focusing attention on appellate court opinions, we will post notices relating to important events that impact appellate practitioners, such as relevant continuing education seminars, proposed changes to the rules of appellate procedure, and meetings of appellate sections.  Because much of our own practice takes place in the North Texas area, our postings of events and meetings will likely focus on events taking place in North Texas.

To make this site a useful resource for practitioners, we included links to other websites and blogs of interest to our target audience.  We welcome any comment or suggestion our readers may have to offer.  If there is some news item you believe we should report, feel free to submit it.  We can't promise that we will post everything, but we will certainly give your comments and suggestions due consideration.

Thank you for reading our blog.

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The Texas Supreme Court will be holding oral arguments this Wednesday, Oct. 16, 2008, in Dallas at the SMU Dedman School of Law.  The following three cases are set for oral argument beginning at 9:00am:

Entergy Gulf States, Inc. v. Summers, No. 05-0272; from Jefferson County, Ninth Court of Appeals (09-04-00152-CV, __S.W.3d__, 12-30-04) (originally argued Jan. 24, 2007, with opinion delivered Aug. 31, 2007, and rehearing granted April 4, 2008) [involving whether a premises owner who hires an independent contractor and provides workers-compensation insurance for the contractor’s employees can be a “statutory employer” for workers comp purposes.]
 

07-0541, TXI Transportation Co., et al. v. Hughes, et al., No. 07-0541; from Wise County, Second Court of Appeals (02-04-00242-CV, 224 S.W.3d 870, 05-25-07) [involving (1) whether evidence that a truck driver involved in a fatal truck-SUV collision was an illegal immigrant was properly admitted for impeachment purposes; (2) whether the trial court improperly overruled a Batson challenge over the only Hispanic venireman struck; (3) whether the trial court improperly excluded defense testimony from a state trooper regarding a tire blowout that might have contributed to cause the accident or cell phone records showing an incoming call to the SUV driver at the time of the accident; and (4) whether the trial court improperly allowed claims for wrongful death of unborn children (the verdict on those claims was not included in the judgment)

City of Dallas v. Abbott; No. 07-0931, from Travis County, Seventh Court of Appeals (07-06-00161-CV, __S.W.3d__, 08-13-07) [whether the Public Information Actions 10-day deadline for requesting an attorney general's opinion on records disclosure is postponed while the city awaits clarification on the records requested and whether the city can be compelled to disclose privileged information if the request for the attorney general's opinion was not submitted by the statutory deadline]

If you cannot attend in person, the arguments will be recorded and posted on the supreme court’s website for later viewing.

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