Thursday, April 27, 2017

Texas House honors memory of former Chief Justice Jack Pope

Originally published by Jillian Beck.

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Colleagues, friends, and family of former Texas Supreme Court Chief Justice Jack Pope Jr. gathered in the Texas House chambers on April 27 to honor the memory of the judicial trailblazer who died in February at the age of 103.

State officials read aloud House Resolution 1228—adopted by the House on April 13—which memorializes Pope, laying out the life history, career, and legal accomplishments of the jurist, who had the longest judicial tenure in Texas history.

“He was an extraordinary person who acted as a common man,” said state Rep. Travis Clardy, a co-author of the resolution, before leading a moment of silence. “He has been a tremendous example to lawyers and judges across the state.”

Read the Texas Supreme Court’s tribute to the late chief justice on its website.

Photo: State Rep. Travis Clardy speaks about former Chief Justice Jack Pope Jr. as colleagues, friends, and family stand nearby in the Texas House chambers on April 27.

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Filing a Product Liability Lawsuit in Texas

Originally published by » Blog.

The statute of limitations for filing a product liability lawsuit in Texas is two years from the date of injury. However, Texas also has a statute of repose, which establishes an overall time limit for product liability cases — in Texas, that time limit is no later than 15 years after the date on which the company being sued sold the product…

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U.S. Supreme Court Says Due Process Requires Refund of Monetary Penalties for Invalidated Convictions

Originally published by John Floyd.

Fines and restitution may be imposed following a criminal conviction in conjunction with the sentence imposed.

 

Fines are commonly imposed in all criminal cases. The amount that may be imposed is generally determined by statute or at the discretion of the court. Fines are paid to a governmental entity.

 

Restitution, on the other hand, is paid to the victim of a crime for whatever losses, either physical or monetary, that they suffered as a result of the crime against them.

 

Fines and restitution are more often referred to as “monetary penalties.”

 

Refund of Monetary Penalties After Reversal of Conviction

 

Most states and the federal government have historically refunded monetary penalties to criminal defendants who have their convictions reversed on direct appeal or through post-conviction proceedings. That rule made sense. No one should reasonably expect a defendant to pay a fine or restitution for an invalid conviction.

 

In 2013, the State of Colorado opted out of this historical practice when its lawmakers enacted “Compensation For Certain Exonerated Persons” legislation. As we pointed out in an April 14, 2017 post, the purpose of this legislation is to provide compensation in a narrow range of cases in which a convicted individual establishes actual innocence of the crime for which he or she was convicted.

 

Colorado Requires Acquitted Individuals to Prove Actual Innocence

 

With this legislation, Colorado joined the federal government and 27 states that have laws on the books providing for compensation to wrongfully convicted persons.

 

Colorado lawmakers, however, wanted to make sure that only “actually innocent” individuals could be compensated. Individuals acquitted following a jury trial or who had their convictions reversed on appeal because of a procedural or constitutional error are not eligible for compensation under the exoneration act.

 

The legislation creates a difficult process for recovery of compensation by anyone wrongfully convicted in a Colorado court. If the innocent individual manages to overcome the hurdles weighing against compensation, he or she is then entitled to a graduated scale of compensation depending upon the nature of conviction.

 

With respect to any monetary penalties imposed with the sentence, the exoneration legislation provides that a wrongfully convicted individual is entitled to recover “the amount of any fine, penalty, court costs, or restitution imposed and paid by the exonerated person as a result of his or her conviction.”

 

U.S. Supreme Court Hears Case

 

The Supreme Court accepted a pair of cases this Term to address the issue of whether the exoneration legislation was intended to be independent from the traditional rule to refund money paid to a reversed judgment; that is, whether the legislation created new rights for exonerated individuals or whether lawmakers specifically intended for the legislation to abrogate the traditional refund rule.

 

Both the cases involve defendants in this case were convicted of sexual assault-related offenses: Louis Madden was convicted of attempt to patronize a child prostitute while Shannon Nelson was convicted of  sexual assault offenses against her children. Both defendants were assessed significant penalties, fees, and restitution orders associated with their convictions. Nelson’s conviction was reversed on direct appeal and she was acquitted following a retrial. Madden’s convictions were also reversed on direct appeal and in post-conviction proceedings. The State elected not to retry him.

 

Both defendants sought a refund of the monetary penalties paid as a result of their wrongful convictions. The Colorado Supreme Court, however, rebuffed those refund efforts, finding that neither the exoneration act nor due process of law allowed the defendants to secure a refund from the State absent a showing of actual innocence.

 

Due Process Require Refund After Reversal

 

The essential issue the Supreme Court was asked to decide was whether due process accommodates a recovery system that places the burden on the individual to prove their actual innocence by clear and convincing evidence in order to recover from a reversed judgment. This burden also entails a responsibility of the individual to hire his or her own attorney to pursue recovery which, more often than not, will cost more than the actual monetary damages paid pursuant to their conviction.

 

On April 19, 2017, the Supreme Court rendered its verdict. Justice Ginsburg  spoke to that verdict:

 

“When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and provers her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process …

 

“Colorado’s scheme fails due process measurement because defendants’ interests in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is

Unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.”

 

We cannot fathom how the Colorado Supreme Court arrived at the opposite conclusion. We can only be thankful that the Supreme Court reversed them.

 

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Preserving Maps: Maintaining the Secret While Disclosing Seismic Data

Originally published by Gary Sorden.

Seismic data is essential to the evaluation of oil and gas prospects. While some oil and gas deals still close without review of seismic data, […]

The post Preserving Maps: Maintaining the Secret While Disclosing Seismic Data appeared first on Klemchuk LLP.

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Your Professional Portrait Is Much More Than a Picture

Originally published by Amy Boardman Hunt.

Even though words are my specialty, I know that the best words in the world can be rendered meaningless if they aren’t presented in a visually compelling way. And the most impactful visual element of them all is a great photograph. When I started writing about attorneys in the 1980s, it was nearly impossible to […]

The post  Your Professional Portrait Is Much More Than a Picture appeared first on Muse Communications.

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Who Will Keep the Family Pet in my Texas Divorce?

Originally published by Austin TX Family Law Blog.

How do courts determine who will keep the family pet after a divorce in Texas?

Pets are an important part of the family for many households across Texas.  If you and your spouse have decided to divorce, one of your main concerns may be who will get to keep the family pet.  While many couples call their pet their “baby,” in the eyes of the law, pets are not given the same regard as children.  Instead, pets are lumped into the category of personal property and may be divided under the laws of community property in the state of Texas.  There are, however, several ways in which you can advocate for ownership of your pet post-divorce.

Separate Property

Under certain circumstances, you may be able to successfully argue that your pet is your separate property and thus should not be divided as community property.  Generally, you can prove this if:

  • You owned the pet prior to marriage; or
  • The pet was given to you as a gift during the marriage; or
  • Your pet was willed to you.

Absent evidence that the pet is your separate property, a court will consider the pet community property.  In Texas, community property is divided in accordance with what is just and right.  It will be up to the court to consider the unique circumstances surrounding your divorce to determine who should receive ownership of your family pet.  

Negotiations

Negotiating with your spouse is often one of the best ways to fight for ownership of the animal.  Applying the “best interests of the pet” standard, though not applicable in court, can be effective during negotiations with your spouse.  Your divorce attorney can help to mediate you and your spouse.  Consideration may be given to who is keeping the family home that the pet is accustomed to and who will have custody of the children, who are likely attached to the pet.  You may even wish to consider implementing a custody arrangement for your pet that allows both of you to spend time with your beloved pet after the divorce.  

 

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Bad Judgment on Social Media May Lead to Job Offer Withdrawals

Originally published by Androvett Legal Media Blog.

Plano attorney Jason Van Dyke was all set to begin a new chapter of his legal career as an assistant district attorney in Victoria County. So he was startled to receive notice that the District Attorney’s office had rescinded its job offer with no explanation. Mr. Van Dyke speculates the reversal could be related to media coverage of a Twitter exchange he had involving a case he was working on in 2014. He has since filed suit seeking answers from Victoria County, and Dallas labor and employment attorney Leiza Dolghih of Godwin Bowman & Martinez says this is a cautionary tale for both employers and job-seekers.

“Many employers these days Google prospective hires and look them up on social media for any evidence of red flags that indicate that the applicant may be violent, unethical, unstable or simply have bad judgment. These behind-the-scenes, informal background checks often result in rejection, or even withdrawal, of a job offer,” she says.

While a Texas employer may reject a prospective candidate for a myriad of reasons, including social media activity, a prospective employee cannot be rejected on the basis of race, gender, religion, age or other protective categories – information that can often be gleaned from social media. If a candidate can show that a job rejection was based on information protected under employment law, there could be basis for a claim of discrimination.

“However, in this case, if the employer discovered what they considered unsavory comments, or possible evidence of poor judgment or lack of self-control, after offering Mr. Van Dyke a job, the withdrawal of that offer based on the newly discovered information, would be acceptable,” says Ms. Dolghih. “While everyone has the right to speak their mind freely, that speech may result in rather harsh consequences in terms of employment.”

For more information or to set up an interview, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

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