Thursday, January 30, 2020

How the Artist Community Can Go Beyond Social Media for Copyright Policing & Enforcement

Originally published by Peggy Keene.

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Learning from Artist Jödicke and Copyright Infringement in Social Media

Artist Jonas Jödicke recently found himself in a social media firestorm after confronting musical artist Aaron Carter on Twitter over Carter’s alleged unauthorized use of his artwork.

In this blog we have written at length about the struggles between artists and copyright infringement, such as an artist’s struggle against copyright infringers that recreated her work in other mediums. [View “Cease-and-Desist Letters are Important Tools in an Artist’s Arsenal”.] This post will discuss the part social media plays, why inaction can be detrimental, and the legal options artists have against copyright infringement of their works.

Jödicke Used Social Media as a Means of Copyright Policing

What we see between Jödicke and Carter is a common scenario: lesser known artist takes on more well-known celebrity over alleged copyright infringement.  But because the more famous artist has (arguably) more clout, the alleged infringement is dismissed by the more famous artist.  In this case, Aaron Carter has 626,000+ followers and the enviable “verified” checkmark by his name while Jödicke has 34,000+ followers without the checkmark.

Similar battles of artist versus quasi-celebrity have also appeared on other social media platforms.  For instance, Naomie Olindo, a reality television starlet that appears on Bravo’s show “Southern Charm” was called out on Instagram over copyright infringement by artist Nick Rypkema over a mural that Olindo painted in her restaurant Saltwater Cowboys.  Rypkema claims that Olindo blatantly copied his work, using the same subject matter and color palette, essentially recreating his work without his authorization.

What happened between Carter/Jödicke and Olindo/Rypkema was basically the same: the lesser known artists call out the “celebrity,” and the celebrities basically respond by saying the artists should be grateful for the free publicity.  And to be fair, it is not hard to believe that both the celebrities were unaware of the true source of the artworks in question, as both Carter and Olindo originally claimed when confronted by the original creators of the works.

How Social Media Plays a Part in Whether Artists Fully Assert Their Rights

In these cases, the Internet and social media play an important part, affecting the artists both positively and negatively.  While artists like Jödicke and Rypkema undoubtedly enjoy increased reach for their works, the Internet also makes it easier for sharing of the works to result in lack of proper attribution of their works and copyright infringement.  And while these social media fights spring up over unauthorized copying of their works, it would be naïve to ignore the fact that both Jödicke and Rypkema have gained followers and some amount of fame from these disputes.

And while the artists have taken the celebrities to task via Twitter and Instagram, they can go one step further.  Simply relying on “calling out” unauthorized use of their works via social media platforms is not enough.

Not Taking Action on Known Infringement Could Cause a Loss of Rights

In an interview with Forbes, Jödicke says he has become “numb” to copyright infringement because it happens so often.  In fact, Jödicke actually mentions that he walked away from an earlier dispute that he had with Madonna, over unauthorized use, simply because he did not want the drama.  And looking back, he acknowledges that this was a mistake because he believes it allows celebrities to ignore the rights of artists.

While that’s a valid point on its own, experienced legal counsel might advise that artists walking away from ownership and rights disputes could be considered by a court as giving up the rights to such works.  Therefore, it is important that artists understand their options for enforcement of their intellectual property rights in their works, to make informed decisions on what type of action to take when infringement occurs.

Understanding IP Rights and When to Obtain Legal Counsel

Artists like Jödicke and Rypkema should consider consulting with or retaining legal counsel.  Copyright attorneys can help educate artists about intellectual property rights and can assist with creating monitoring programs for unauthorized use.  Moreover, legal counsel can send cease and desist letters to third party infringers at a moment’s notice, with more authority than what’s received with a mere calling out on social media.

While Carter laughed off the dispute with Jödicke by telling Jödicke that he would see him in “small claims court,” such dismissal by Carter could prove to be a mistake.  Carter appears to have used the work of Jödicke to promote his merchandise store.  As this store was promoted online and engages in electronic sales all over the United States, it is not a stretch to believe that Carter could face claims under federal law.

As both technology in social media and the copyright laws change, it’s important to understand what’s needed to be prepared for protecting IP rights.  For example, it has recently become a requirement that before a copyright claim can be made in federal court, the subject work must have federal copyright registration protection.  So, artists with repeat infringement issues should consider copyright registration protection of at least their most important works.

Key Takeaways from the Jödicke Story and Copyright Infringement in Social Media

Artists that experience repeat unauthorized use of their works should not rely on merely policing their works via social media.  Instead, artists should be aware of their intellectual property rights and have an understanding of the legal options they can take, such as:

  • rights granted by U.S. copyright registration;

  • cease-and-desist letters on attorney letterhead;

  • experienced legal counsel that can provide advice and assist with monitoring and enforcement; and

  • intellectual property counsel to represent them in litigation.

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Klemchuk LLP is a litigation, intellectual property, transactional, and international business law firm dedicated to protecting innovation. The firm provides tailored legal solutions to industries including software, technology, retail, real estate, consumer goods, ecommerce, telecommunications, restaurant, energy, media, and professional services. The firm focuses on serving mid-market companies seeking long-term, value-added relationships with a law firm. Learn more about experiencing law practiced differently and our local counsel practice.

The firm publishes Intellectual Property Trends (latest developments in IP law), Conversations with Innovators (interviews with thought leaders), Leaders in Law (insights from law leaders), Culture Counts (thoughts on law firm culture and business), and Legal Insights (in-depth analysis of IP, litigation, and transactional law).

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When a case lacks the operative facts

Originally published by David Coale.

The Fifth Court reversed the denials of several special appearances in a high-profile securities case, when the plaintiffs “explicitly allege that their causes of action under sections 11 and 12 are ‘based solely on negligence and/or strict liability,’” and thus had the burden to prove only the “adverse facts that existed at the time” of the relevant offerings and its effect on the underlying business. The Court concluded that the “operative facts” related to those particular issues “are not substantially connected to Texas.” 05-19-01177-CV (Jan. 26, 2020) (mem. op.) (applying, inter alia, Moncrief Oil v. Gazprom, 414 S.W.3d 142 (Tex. 2013)).

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Why We Need More Maritime Injury Reporting

Originally published by Christian Lautenschleger.

The seas have never been safer for maritime professionals, but there is still a lot of room for improvement. Thousands of sailors are injured on the job every year, in incidents that in many cases could have been prevented by better safety standards.

Until the shipping industry jointly commits to increasing safety, as opposed to profits, maritime workers will continue to face preventable risks on the job. If you or a loved one has been injured in a maritime accident, you may be entitled to a financial recovery if your employer could have taken steps to avoid the incident.

Call The Krist Law Firm today at (281) 283-8500 for a free consultation about your case.

More Frequent and Consistent Incident Reporting Will Lead to Safer Ships

The maritime industry is struggling to adopt consistent incident reporting standards that could prompt the development of more effective safety practices on ships. A new report published by the American Bureau of Shipping (ABS), the American Club, and Lamar University recommends an industry-wide review of how incidents and injuries are reported, because data collection and organization is different across different regions, companies, and research institutions.

The review covered a decade of ship accident data from the American Club, including 12,000 injury records totaling $246 million in damages. The largest incident category, accounting for a third of the total, was for lifting injuries and accidents that happened as a result of slipping, tripping, or falling on deck.

These incidents cost shipowners more than $85 million in total with each one costing $65,000 on average. Injuries to the victims’ head and neck involved even higher damages, averaging more than $100,000 per incident.

The study also took into account 100,000 records from the Mariner Safety Research Initiative (MSRI), a joint venture between ABS and Lamar University. This data set includes near misses as well as incidents causing injury.

Near misses happen more frequently and are just as relevant to improving safety as incidents that result in an injury or damage. Each near miss represents an instance where unsafe conditions were allowed to develop.

The European Maritime Safety Agency (EMSA) conducts its own annual review of incidents and casualties, and also found that slip and falls were a leading cause of injury. But the American researchers could not directly compare most of their data directly to that of their European counterparts.

Terminology and reporting requirements are not consistent from region to region, making international collaboration on safety issues particularly challenging.

Ship Owners Face Liability for Bad Safety Practices

Under the Jones Act, sailors have the right to sue shipowners to recover damages for their injuries. To get compensation under the Jones Act, you need to prove that the ship’s unseaworthiness or the shipowner’s negligence caused your injuries.

Proving these issues is the key to obtaining a result that adequately compensates you for your pain, suffering, lost wages, medical expenses, and lost earning ability.

Contact an Experienced Maritime Injury Lawyer

At The Krist Law Firm, our goal is to help Houston maritime professionals get back on their feet after an accident. We can act on your behalf in dealing with insurance adjusters, company representatives, and their lawyers so that you can focus on healing from your injuries.

The outcome of your case depends on the strength of the evidence you present, and how effectively you argue from the facts the evidence establishes. Letting an experienced legal professional construct and present a strong case for you can vastly improve the outcome.

Call (281) 283-8500 or contact us online for a free, initial consultation about your case.

The post Why We Need More Maritime Injury Reporting appeared first on Krist Law Firm.

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Provision Would Allow US Troops to Sue for Medical Malpractice

Originally published by Robert Kraft.

The New York Times reports that legislation before Congress would “knock a hole in the Feres doctrine,” a Supreme Court ruling that holds that “the government is not liable for injuries sustained by military members on active duty.” A provision that would allow troops to file claims against the military over medical malpractice has been added to this year’s National Defense Authorization Act. The measure “is regarded as must-pass legislation, and lawmakers from the House and Senate agreed on a final version on Monday that is expected to become law this month.”

From the news release of the American Association for Justice.

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Arbitrator Authority

Originally published by David Coale.

The arbitration clause in Kemper Corporate Servcs., Inc. v. Computer Sciences Corp., No. 18-11276 (Jan. 10, 2020), said that “decisions shall be in writing and shall state the findings of fact and conclusions of law upon which the decision is based, provided that such decision may not (i) award consequential, punitive, special, incidental or exemplary damages or any amounts in excess of the limitations delineated in” other provisions of the parties’ contracts (emphasis added). The unsuccessful party questioned whether the arbitrator had authority to “categorize damages as consequential or direct,” but the Fifth Circuit disagreed, concluding: “For the arbitrator to resolve the dispute between CSC and Kemper, which could include awarding damages, he had to categorize the potential damages into the permitted and the prohibited categories.” The Court then affirmed under the highly-deferential standard of review as stated in BNSF R.R. Co. v. Alstom Transp., 777 F.3d 785 (5th Cir. 2015).

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Lawyers: Learning from Your Rival

Originally published by Cordell Parvin.

Over the holiday while working out I listened to a wonderful interview Lewis Howes did of Simon Sinek. Click here to listen. Simon Sinek has published a new book: The Infinite Game. I haven’t read it yet, but after listening to the interview, I will read it soon.

During the interview, near the end, they talked about the difference between competitors and rivals.

If you go to about the 41st minute of the interview, you can hear what Simon Sinek says on that subject. I will try to paraphrase here.

A competitor is someone you set out to beat. A rival is someone out there you believe is worthy of comparison. A rival forces us to focus on improving ourselves. Someone who is a rival at the top of his or her game who exposes your weaknesses giving you the opportunity to improve.

If you don’t have time to listen to the podcast, or watch the video above, take time to read this Inc. Magazine article: Simon Sinek: Here’s Why Everyone Should Have a Work Rival. In it Simon Sinek says:

“A Worthy Rival can push us in a way that few others can — not even our coaches, mentors or advisors,” he contends. “Traditional competition forces us to take on an attitude of winning; a Worthy Rival inspires us to take on an attitude of improvement. The former focuses our attention on the outcome; the latter focuses our attention on process.”

 

The post Lawyers: Learning from Your Rival appeared first on Cordell Parvin Blog.

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Avoid the Panic: 5 Stress Management Tips That WORK!

Originally published by cerebellumchef.

How do you deal with a multitude of life events and circumstances?

I’ve debated posting about this for a while now. So many emotions revolve around taking the Bar, even more-so when you’re taking it for the second time. I wish I could tell you that everything is alright and that I’m doing fine – it’s what I tell myself on a daily basis. Don’t get me wrong, I’m making progress in the Barbri program, and keeping up with my own supplemental studies (like adaptibar and crushendo) – but I have, almost every night for the past few weeks, experienced night terrors.

Stress manifests itself in ways you might not expect. Here I was, thinking my compartmentalization method was effective; only later being woken up in a fit of tears and strangled breaths because of a horrible dream. Someone always dies in them, sometimes it’s me. Now, I’m sure you can imagine that these nightmares are anything but pleasant, and they make getting a full night’s sleep quite impossible. No sleep means crappy study sessions, which leads to the cycle of diminishing returns. So, I endeavored to make changes in my own lifestyle, employing better habits for myself and my own boundaries. I’ve used these 5 things every day for the past week and have realized more peaceful, restful nights, as well as added benefits.

1. Work Out for 30-45 minutes daily.

There’s so many added benefits to working out. One major bonus is that I topple into bed every evening and am actually able to sleep. The other bonus to running, for me, is that I have time to address my worries and think about them while I run. This links directly to #5 – expressing my feelings, even just to myself, makes a huge difference in my quality of life.

2. Plan Every Meal.

I know, yes – this takes time. But make the damn time. Carve out a few hours on Sunday and Wednesday to meal prep. Or, if you have the family support, pitch in for groceries and ask someone else to meal prep for you. I typically cook in our household, but my wonderful husband stepped up to the challenge and has prepared wonderful meals for us while I soak up the extra study time.

Make Time. Thank Me Later.

3. Build in ‘down time.’

I use my calendar like a weapon. If you don’t ask me for time, you simply don’t make it into the book. If you’re not in the plans, then I refuse to make time for you. It sounds mean, but I’m preparing for one of the hardest exams in my life, so this thought process basically comes down to: prioritize me and I will do the same for you. Otherwise, I have no time to give you. I will not apologize for this either.

Another option is to build in time for fun stuff, whether it’s reading for fun or watching a movie with your family at home. There needs to be time spent away from the outlines and study. Every study session needs to be effective, and you simply cannot stay focused if you’re trying to pour from an empty cup. Make time to relax and replenish your reserves.

4. Breathe Deeply & Re-Focus.

Whenever you find your mind wandering, especially in the middle of reading outlines or working on a multiple choice problem, remind yourself to focus and then close your eyes and take a deep breath.

It’s unsettling to sit in one spot for a significant period of time reviewing, studying, and practicing. When I tell friends how many hours I typically study a day – they balk. So I know first-hand how crazy those 10-12 hours days are for you. That said, keeping your focus is a skill you should hone. Trust me, it will make such a difference on exam day.

5. Express Your Emotions.

This entire process is hellacious. The time-suck of studying, after already putting in a literal 3 years of effort to earn the degree, is mind numbing. I already failed once, so there’s this sense of impending doom at not making it through this time. The more I study, the easier it is to drown out the nagging little voice telling me I may not be good enough.

I use my time at the gym to think about how my studies are progressing, to consider what is going on with my family, and contemplate how I may be able to help once I get licensed. Since I can’t just pull these thoughts and leave them in a pensieve, I find it best to deal with them head on.

I hope these tips help you and wish you nothing but the best as you prepare for the Bar exam!

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Community Property issues in Texas family law cases

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Premarital and Marital Property Agreements are contracts between you and your spouse or spouse-to-be that can have a great deal of importance. A signed, written agreement between the two of you that allocates debts and property into either the community or separate property column will determine how each piece of property is treated in the event that your marriage ends in a divorce. We hear about premarital agreements or “prenuptial” agreements all the time in the media when rich, famous people get married. However, these sort of agreements are not just for the uber-wealthy.

A premarital agreement will go into effect the day that your marriage begins. Most people that enter into these agreements do so to limit the amount of property or debt the community estate will accumulate over the course of their marriage. On the other hand, if you and your spouse were to enter into a similar agreement during the course of your marriage it would be known as a marital property agreement. Essentially both documents are the same, it is just a matter of when the agreement comes into being- before or after the marriage has started.

How a premarital or marital property agreement works in the context of a divorce is that whichever spouse files for the divorce will reference the property agreement within the Original Petition for Divorce. When it comes time for the final orders of your divorce to be filed at the conclusion of your case, a copy of the agreement will typically be attached to those orders as an exhibit for reference purposes.

How is community property divided in a divorce?

If you and your spouse have not entered into a premarital or marital property agreement, then it is the responsibility of the judge to divide your community property and debts. That is, the judge must divide the property in the event that you and your spouse cannot agree to do so in mediation or in an informal negotiation settlement conversation. Keep in mind that although Texas is a community property state, debt and property does not have to be divided 50/50 between you and your spouse. Factors like the size of each of your separate estates, fault in the breakup of the marriage as well as your income will weigh on a judge if he or she must divide your community estate.

In many cases, the community property that you and your spouse own cannot be divided straight down the middle. Let’s consider the most commonly divided large item of property that you and your spouse could have: the marital house. The easiest route that you and your spouse could go would be to sell the house and split up the equity that you would get after the mortgage and other costs of the sale are taken care of. There is relatively little hassle in doing this and allows both you and your spouse to wipe your hands clean of this asset and move on.

However, that is all true when you take the sale of the house in a vacuum. Consider what could change if you and your spouse have a child together. In many cases, a judge will award the family house to whichever parent is named the primary caretaker of your child. Obviously, it would have to be shown that this parent can afford the mortgage payments on their own. The reason a judge would order this would be to allow your child to have some degree of stability and consistency by remaining in the family home after the divorce concludes.

If you are the parent who is not awarded the right to be the primary caretaker of your child then you may be wondering where this leaves you. Would a judge really order you to leave the house, not award you primary responsibility for your child and then not allow you to gain any monetary benefit from the house? The answer to that question is, no.

Many times what a judge will order is that the house should be sold as soon as your child turns 18 and the sale proceeds will be split between you and your ex-spouse at that time. Or, you may be able to exchange any equity in the house for another piece of property in the community estate that could equal the value. For example, if there is a classic car that was purchased during the marriage that roughly equals your equity position in the home, that vehicle could be awarded to you.

The thing to keep in mind is that while a judge will do their best to divide the community estate in an equitable fashion, no judge is perfect. It is an impossible task to ask a judge to learn your family dynamics well enough over the course of a one or two day trial to do a perfect job of dividing the community estate. This is why we encourage people like yourself to do everything that you can to attempt to settle your case in mediation rather than to leave the decision up to a judge.

Will you have to pay spousal maintenance in your divorce?

Simply put, spousal maintenance is a payment that is ordered by a judge to be made from your future income to support your ex-spouse after your divorce has concluded. Although it is not a term that is officially used in Texas, many people know of this relationship as “alimony.” You and your spouse can agree to some degree of spousal maintenance in mediation, so don’t think that you have to go see a judge if you want to push for spousal maintenance payments.

Spousal maintenance is typically ordered towards the benefit of spouses that lack sufficient property to provide for their minimum basic needs. The key is that you and your spouse need to have been married for at least ten years in most cases for a judge to be able to order that you receive spousal maintenance. Other circumstances that could lead a judge to order that you should receive spousal maintenance is if your spouse has engaged in acts of family violence against you in the two year period prior to your divorce or you or your child have a disability that negates your ability to work outside of your home.

How much spousal maintenance can be awarded in your divorce?

A judge has limits to how much in spousal maintenance can be awarded in your case. Additionally, a judge can only order that spousal maintenance payments be paid for certain periods of time depending upon the length of your marriage. Your judge will need to determine how much money you would need to meet those minimum, basic needs that we just finished discussing. Either way, a judge cannot order that you receive more than $5,000 per month or 20% of your spouse’s gross monthly income in spousal maintenance. Your spousal maintenance award will be limited to certain periods of time unless you can present evidence that shows due to an incapacitating injury or physical impairment that you would be unable to earn an income to support yourself.

How issues related to your child can impact your divorce

Your Final Decree of Divorce will be the final orders issued in your divorce case. These are the marching orders that you and your ex-spouse will need to follow until you come back and have those orders changed/modified, if you do that at all. Part of those final orders will be a section that covers a Parenting plan for you, your ex-spouse and your children. The conservatorship designation of both you and your ex-spouse, a visitation schedule, child support, medical support and any other issues relevant to your family will be detailed in this section.

The reason why so much detail is put into a parenting plan is to, in theory, minimize the risk that you and your ex-spouse have as far as disagreements and animosity that surrounds co-parenting in your post-divorce life. Of course, this may not be the case for you and your ex-spouse but the intention is to lay out a clear cut path for your parenting to take in hopes to creating some sense of post-divorce harmony. If issues arise in the midst of that post-divorce life there are steps you can take to correct those issues- more on that in a later blog post.

How long does the parenting plan/child support plan go into effect for?

A family court in Texas has the ability to enforce orders regarding your child until that child graduates from high school or turns 18- whichever occurs later in time. In the event that your child has a physical or mental disability that requires that he or she remain in the home for a longer period of time, the court will likely continue in its authority to enforce child support, custody and visitation orders until a later date.

When we talk about custody of a child in Texas, we are really talking about who is able to get physical possession of your child and on what basis. The word “custody” actually does not come up in the Texas Family Code, but it is a term that is used so much in our society everyone involved uses it with regularity. For the most part, you and your spouse will share in custody rights and duties associated with your child.

If it comes down a trial, the judge will need to make decisions in relation to custody of your child that are in that child’s best interests. A joint managing conservatorship is one where you and your spouse share in the rights and duties of raising your child on an even basis. The only rights that will differ significantly are the rights to determine the primary residence of your child as well as the right to receive child support. Only one of your can do those things associated with raising your child.

In rare instances, either your or your ex-spouse may be named as a sole managing conservator of your child. If there is a history within your family of family violence, child abuse/neglect or a protective order has been issued against either of you, then the sole managing conservator designation would be appropriate. Basically, the sole managing conservator is able to be in physical possession of your child much more and also holds more of the rights and duties associated with parenting your child on a daily basis.

A court would also look to whether or not you or your spouse have been absent for long stretches of time from your child’s life or if there has been a great deal of conflict in your relationship with your child and/or your spouse. The parent who is not designated the sole managing conservator of your child does not lose all of their rights, but their rights are curtailed because it is believed that doing so is in the best interests of your child. The sole managing conservator specifically has superior rights when it comes to making decisions for your child in regard to educational and medical issues.

Questions about divorce in Texas? Contact the Law Office of Bryan Fagan

We were able to cover a lot of information about divorce in Texas today. If you would like to ask us any questions or need us to clarify any of the points that we made please do not hesitate to contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week with our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about subjects that are important to you and your family.

Our attorneys and staff take a great deal of pride in being able to work with clients from across our area in the courtrooms of southeast Texas. We aim to always provide excellent represesntation of our clients while maintaining a strong sense of integrity and customer service. Contact us today in order to find out more about how we can assist you in your family law case.

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Wednesday, January 29, 2020

Going to Trial Is Always a Gamble, Even for ‘Bull’

Originally published by Kacy Miller.

In this week’s episode, “Behind the Ivy,” 16-year-old Antonio Garcia is worried about “making weight” for his wrestling competition. He’s three pounds over his class and has five hours to shed the excess. His coach says, “You know what you gotta do.” And he does.

Dr. Bull counsels grieving clients on whether to take the gamble to go to trial over the death of their teenage son.

Chris Jackson as Chunk Palmer, and Michael Weatherly as Dr. Jason in ‘Bull’ season 4 episode 12. (Photo by CBS Broadcasting, Inc.)

Four hours later, Antonio is running behind the team van wearing a garbage bag. He collapses and dies of cardiac arrest. Bull’s team is hired by Antonio’s parents, who are suing Antonio’s school, Dartwell Preparatory School, and his coach for wrongful death.

Dartwell, of course, wants the issue to disappear, quickly. They’ve offered the Garcias a half-million dollars in exchange for a no-fault agreement. Dartwell claims a heart murmur caused Antonio’s death, and the Garcias failed to disclose the murmur during the admissions process. The parents claim the murmur had never been an issue, Antonio was healthy, and even Dartwell’s own physician gave Antonio a clean bill of health during his pre-admission physical. The parents don’t want the $500,000; they want answers as to why their seemingly healthy son died of a heart attack at the age of 16.

Bull responds:

Once we demand a trial, all bets are off. Maybe we’ll get some answers; maybe we won’t. Maybe we’ll get you some money; or maybe you’ll end up with none.

No Guarantees in Litigation

Anyone familiar with litigation knows there are absolutely zero guarantees when parties go to trial. Whether a case makes it to a jury or not, the process is predictably unpredictable. Emotions often cloud judgment as to the best path for resolution. Often, litigation is more about a person wanting the opportunity to share grief, express anger, find meaning in the unknown, or simply feel “heard.” In the case of Mr. and Mrs. Garcia, it was a mix of all four, and they opted to go to the mat.

In true “Bull” fashion, the writers once again completely ignore discovery or consider actual rules of civil procedure. I found it funny that Bull, et al. seemed to have learned the name of the defendants’ medical expert just minutes before heading to court to pick a jury. Dr. Sarah Barnes is apparently a force to be reckoned with and is known to say whatever she needs to say if she’s paid enough to say it. (We all know that kind of expert, don’t we!?)

Benny and Dr. Bull are familiar with Dr. Barnes and assume she’ll testify Antonio died because of his undisclosed heart murmur. Bull instructs his staff to “comb the internet” for every word she’s uttered or written on the subject of heart murmurs.

It’s always smart to dig as hard as you can for potential inconsistencies of a witness’s testimony. But in the exciting world of discovery (at least in Texas), the plaintiffs would have known Dr. Barnes’s opinions long before the first day of trial. But that’s not nearly as fun as Hollywood gotcha-moments on the witness stand.

While the team is busy sleuthing for data (that should have been known months earlier), Benny and Bull are selecting a jury. (Seriously. They select a jury the same day they learn Dr. Barnes is the expert. M’kay…) Their goal: Ridding the panel of any juror with a bias toward authority.

Generally, I agree with this strategy. Jurors with authority bias are typically more inclined to believe those in a perceived position of power or authority. Key word: perceived. Jurors who view an institution or witness as more elite, more prestigious, more educated, or more credible may lean toward giving Dartwell and its witnesses the benefit of the doubt. Certainly not the jurors Bull wants on the panel.

The Witness Gamble

As Benny and Bull head back to the office, they try to decide who to call as their first witness. (I’m back on my soapbox to say this sort of thing should have been discussed ages ago.)

Benny wants to mitigate the potential power of Dr. Barnes’ causation testimony by calling their own medical expert as their first witness. Not necessarily bad logic. If they can establish right out of the gate Antonio’s heart murmur was a non-issue, then Dartwell’s if-only-we-knew argument loses a bit of power, don’t you think?

But Bull’s recommendation to call Mrs. Garcia first makes a lot more sense. After all, it’s a wrongful death case. And in order to prevail in this type of case, jurors must sympathize with the plaintiff and be at the very least irritated with the defendant if there’s any hope of big dollars. Mrs. Garcia can not only humanize her son, but she can also generate empathy from the jury panel. The emotional hook her testimony could establish from the get-go is critically important.

But it’s also risky.

If jurors don’t like Mrs. Garcia, it could be difficult to regain the jury’s trust. And, if opposing counsel successfully portrays her as knowingly withholding medical information to secure a full scholarship to the school, causation could become moot.

Unfortunately for Bull, this is exactly what happened during Mrs. Garcia’s testimony.

This hit was made even worse after a huge gotcha-moment from the defense medical expert’s testimony. Dr. Barnes didn’t care about the heart murmur as Bull expected; she cared about toxicology reports, which, after her deeper analysis, indicated Antonio Garcia had amphetamines in his system and the time of death, and that is what caused his heart attack.

And just like that, Plaintiffs’ hopes for a nice settlement flew out the window.

Snatching Victory from Possible Defeat

As we’ve all come to expect, there are a few shenanigans in the courtroom. Miracle last-minute discoveries. And judges who are willing to give Benny a bit of leeway.

At the last minute, Bull’s team finds an email from the guidance counselor to Antonio implying Antonio was taking amphetamines with the counselor’s knowledge. Chunk confronts the counselor, who promised that he informed Coach Davis about the drug use. Conveniently, Bull’s team also finds historical data from the wrestling team members showing each boy averaged a 3-inch growth with 0-pounds gained in weight. How could these kids have such a growth spurt without gaining weight? It’s not how things work, and jurors know it.

Benny confronts Coach Davis with the roster information, and asks if he recalls a conversation he had with the school counselor about Antonio. Coach Davis invokes the 5th and the next thing you know we have a jury verdict.

As it always seems to be, Benny and the Bull team secure a victory. The jury found both Dartwell Preparatory School and Coach Davis liable for Antonio’s death, awarded $300,000 in compensatory damages, and tacked on another $5 million in punitive damages.

Jurors may not have fallen in like with Mrs. Garcia, but they didn’t like the defendants either. So long as jurors are more disgusted with the other side than yours, there’s still a chance for victory.

 

 

This article was originally published by Texas Lawyer on January 27, 2020. Reprinted with permission. © 2020 ALM Media Properties, LLC. All rights reserved.

 

The post Going to Trial Is Always a Gamble, Even for ‘Bull’ appeared first on CourtroomLogic.

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Summary of Proposed Texas Hemp Regulations

Originally published by Tiffany Dowell.

 

This article summarizes the proposed Texas Department of Agriculture (TDA) regulations titled Hemp Program as submitted to the Texas Register on January 10, 2020.  These rules are not final and have not yet been adopted by TDA or approved by the USDA.  A copy of the proposed regulations may be found here.  Public comment is open through February 10, 2020.  For more information about submitting comments, click here and look under Texas Hemp Program FAQ.

Photo by Kay Ledbetter, TAMU AgriLife

Licensing

Producers looking to grow hemp will need to obtain both a license and various permits.

TDA License

First, all producers, handlers, or those who will sample or collect hemp will be required to obtain a TDA license.[i]  This will require an annual online application.[ii]  For producers wishing to renew a license, a renewal application must be submitted prior to the expiration of the current license as there will be no automatic renewals.[iii]

The application will require the following information:

  • Complete and accurate application form.[iv]
  • Proof of completion of TDA mandatory orientation course.[v]
  • Criminal background check for each applicant and each key participant in an entity.[vi] (A “key participant” is defined as “a sole proprietor, a partner in a general partnership, a general partner in a limited partnership, or a person with executive managerial control in an entity. A person with executive managerial control includes persons such as a trustee, independent or dependent executor or administrator of an estate, chief executive officer, managing member, manager, president, vice president, general partner, chief operating officer and chief financial officer, or their equivalents. This definition does not include non-executive employees such as farm, field, or shift managers that do not make financial planning decisions and that do not vote or exercise control of an entity.).[vii]
  • Payment of all required fees[viii]

The application form will require the following information:[ix]

  • Applicant’s name, Texas address, phone number, email address;
  • If submitting on behalf of an entity, the entity’s principal Texas location address; full names, titles, addresses, and emails of key participants; the full name, title and email of the applicant who will have signing authority; and the Texas taxpayer ID number.
  • (For producer or grower licenses) a street address & geospatial location including GPS for each facility where hemp will be cultivated or stored and proof of ownership or control over these locations.
  • All other info required by the department.

Further, the applicant must be in good standing with TDA and TDA will take into account the applicant’s history showing willingness to comply with TDA rules and instructions from TDA staff.[x]

The following persons may not obtain a producer license:[xi]

  • Persons under 18 years of age at the time the application is submitted.[xii]
  • Persons who have had a hemp license revoked, terminated, or suspended by TDA, USDA, another state, Indian nation, or U.S. territory within 5 years.[xiii]
  • Persons who have been convicted of a felony relating to a controlled substance under federal or state law within the past 10 years. (Note, this also applies to governing persons of a business entity that holds a license.[xiv] A “governing person” is defined as “a person serving as part of the governing authority of an entity.”)[xv]
  • A person who falsifies any information contained in a license application to the TDA or who has previously submitted an application containing materially false statements or misrepresentations to TDA, USDA, another state, Indian nation, or US territory.[xvi]

The TDA will notify applicants of approval or denial by letter or email.[xvii]  If there are changes to the information submitted in the license application, the applicant must submit a license modification.[xviii]

If TDA denies a license, the applicant may appeal this decision.[xix]  If TDA denies an appeal, the applicant may request, in writing, a formal adjudicatory proceeding within 30 days.[xx]

Importantly, licenses are not transferable.[xxi]  The only exception to this rule is in the event a license holder dies.  In that situation, his or her executor may contract with another license holder to cultivate, harvest, handle, test, and convey the hemp crop existing at the time of the license holder’s death.[xxii]

Lot Permit

All producers will be required to obtain a lot permit for each lot where the license holder intends to produce or handle hemp.  This will require the applicant to submit the license number, geospatial location of the lot where the hemp will be planted, the facility where the lot is located, and anticipated dates of cultivation.[xxiii]

A “lot” is defined as “a contiguous area in a facility, field, greenhouse, or indoor growing structure containing the same variety or strain of cannabis throughout the area.”[xxiv]  A “facility” is defined as “a location with a legal description and is within the legal control of a person or entity.  A facility may consist of multiple fields, greenhouses, storage, and/or lots.”[xxv]  “Contiguous” is defined as “all of the lots in or on a location owned or controlled by one owner or tenant, or the same owner and tenant, and no lot is separated from the other lots on the location by different ownership or control, or a public right of way, a navigable waterway, or an area greater than sixty feet.”[xxvi]  A “field” is defined as “an outdoor area of land consisting of one or more lots on which the producer will produce or store hemp.”[xxvii]

Transportation

Third, all producers who plan to transport hemp outside of a facility where hemp is produced will be required to obtain a transportation certificate or transportation manifest.[xxviii]  Hemp produced outside of Texas and transported in Texas must be accompanied by valid documentation authorized by another state, Indian nation, or US territory.[xxix]  Transport manifests must accompany all samples collected and send to a laboratory for testing.[xxx]

There are two further restrictions related to transportation.  First, a person transporting hemp plant material may not transport any other cargo that is not hemp material.[xxxi]  Second, a person may not transport hemp in Texas that contains an agricultural pest or disease listed under the Texas Administrative Code.[xxxii]

Fees

Texas hemp producers will be subject to the following fees:

  • License application fee:[xxxiii] $100[xxxiv]
  • License modification fee (if applicable)[xxxv]
  • Annual license renewal fee:[xxxvi] $100[xxxvii]
  • Annual background check fee
  • Participation fee (at a minimum for each facility, each lot, and a processor registration)[xxxviii]
  • Facility modification fee (if applicable): $500[xxxix]
  • Fee for sampling and collection conducted by TDA (if applicable): $300[xli]
  • Fee for licensed samplers contracted with TDA to conduct sampling (if applicable)[xlii]
  • Shipment/transportation fees to get a sample to the laboratory.[xliii]
  • Testing fees payable to laboratory.[xliv]
  • Transport manifest fees in an amount determined by TDA.[xlv]
  • Organic certification fee (if applicable) in an amount determined by TDA.[xlvi]
  • Participation fee for optional TDA marketing program (if applicable) in an amount determined by TDA.[xlvii]
  • Fee for destruction of material in accordance with DEA reverse distributor regulations[xlix]

Seed and Transplanting

First, after May 2020, a person may not sell, possess, hold, or purchase hemp seed unless they have a TDA license for production and handling.[l]

Second, a person may not sell or distribute hemp seed in Texas unless the seed is certified or approved by TDA.[li] TDA shall maintain and make available to license holders a list of businesses that sell certified and approved hemp seed for production, sale, offered for sale, or distribution within Texas.[lii]

Third, there are a number of legal standards related to seed.  All hemp seed must meet the legal standards for seed quality and seed labeling required by Texas and federal law, as well as the legal standards in the jurisdiction(s) where the seed was originally sold and produced.[liii] There are also additional TDA labeling requirements specifically for hemp seed quality and labeling that must be followed.[liv]  Finally, all hemp seed must contain a clear, legible statement on the label indicating the specific variety of hemp seed, the seller or distributor, and the location and jurisdiction of the original seed.[lv]

Finally, for license holders who transplant, there are a number of additional requirements:

  • A license holder may only cultivate cannabis transplants originating from plants germinated in Texas. No cannabis transplants may be brought into Texas if they originated from cannabis plants germinated outside of Texas.[lvi]  Note that “transplant” is defined as moving “a fully germinated seedling, mature plant, cutting, or clone from one lot and to replant it in another permanent lot under the control of the same license holder, for later harvest by the same license holder. “Transplant” also means a plant, cutting, or clone that has been moved from its initial lot of germination or cultivation for the purpose being transplanted.”[lvii]
  • A license holder must obtain a lot permit for the initial area of cultivation and a lot permit for each final transplantation area. The initial cultivation area and final transplant areas shall constitute separate lots.[lviii]
  • In the initial lot permit application, the applicant must include all final transplant areas and anticipated dates of transplant.[lix]
  • A license holder must maintain all recordkeeping required for each lot permit, including submissions of all lot reports.[lx]
  • A license holder must pay the required fee for each lot permit.[lxi]
  • If the initial cultivation area and final transplantation area are not located in the same facility, the license holder must request a transport manifest before transporting.[lxii]
  • Finally, the sale or transfer of a lot of cannabis plants from a license holder to another license holder for transplant is considered a harvest.[lxiii] This will trigger the various requirements related to harvest, including the testing requirements discussed below.[lxiv]

Production

There are certain regulations related to hemp production that growers need to be aware of.

First, a license holder may not produce or handle hemp in any other locations not listed on his or her license application.[lxv]  Should a producer wish to handle or produce hemp on additional facilities, a facility addition or modification request must be submitted or approved.[lxvi]  Similarly, a license holder shall not produce or handle any cannabis that is not hemp.[lxvii]

Second, a license holder must own or completely control any real property included on his or her license application.[lxviii]  Growers may not handle or produce hemp on land owned by or leased from a person who is ineligible for licensure under the Department’s hemp program, a person whose application or renewal application was denied by TDA, or a person whose license was terminated or revoked.[lxix]

Third, a license holder may not interplant hemp with any other crop without express written permission from TDA.[lxx]  Hemp must be physically segregated from other crops without prior written TDA approval.[lxxi]  Prior to processing, harvested hemp may not be commingled with cannabis from other lots or other material without prior permission from TDA.[lxxii]

Fourth, growers must comply with TDA regulations related to the transportation and movement of hemp plants and plant parts.[lxxiii] This includes ensuring that hemp in transit has an issued transport manifest.[lxxiv]

Fifth, a license holder must notify TDA of any theft of cannabis materials, whether growing or not.[lxxv]

Inspection, Sampling, and Testing

Hemp producers will be required to submit to certain inspection, sampling, and testing.

Inspection

First, a license holder must immediately produce a copy of his or her license upon request from TDA.[lxxvi]  TDA or its representatives shall conduct random inspections of license holders to verify compliance with state and federal law.[lxxvii]

Second, as a condition of licensure, license holders consent to entry on and inspection of all locations identified in an initial or renewal application and all land on which hemp or other cannabis plants or materials are located.[lxxviii]  TDA, DEA, DPS, US authorities, and local law enforcement agencies shall have complete and unrestricted access to all hemp plants, whether growing or harvested, all facilities used for the production and storage of hemp in all locations where hemp is produced or handled.[lxxix]   This includes the right for TDA and US authorities and their representatives to enter such locations, land and premises, with or without cause, and with or without advance notice.[lxxx]

Third, a license holder must notify TDA of any interaction with US authorities.[lxxxi]  This must be done by phone within 24 hours of the interaction and by follow-up in writing within 3 calendar days of the interaction.[lxxxii]

Sampling

A license holder may not harvest a cannabis crop prior to samples being collected.[lxxxiii]  A sample request form must be submitted to TDA at least 15 days prior to the expected harvest date.[lxxxiv]  Receipt of this form triggers a site inspection and sample collection by TDA or its representative.[lxxxv]  Harvest must be completed within 15 days of sample collection, unless otherwise specifically authorized by TDA.[lxxxvi]  If the license holder fails to complete harvest within 15 days from the sample collection, a secondary sample of each lot must be collected and submitted for testing.[lxxxvii]  The license holder must notify TDA of a harvesting delay by submitting another sample request form.[lxxxviii]

Material that will be selected for sampling will be determined by TDA’s Sampling and Collection Procedure, which has not yet been publicly released.[lxxxix] A separate sample must be taken for each lot.[xc]  Samples will be labeled and prepared to transport to the laboratory for testing in accordance with TDA’s Sampling and Collection Procedure.[xci]  During a scheduled sampling, the producer or a representative of the producer shall be present at each lot undergoing sampling.[xcii]  Generally, TDA will conduct no more than 2 sample requests per lot.[xciii] TDA may grant additional requests per lot if there are unusual circumstances, including an event unforecastable to a reasonable person.[xciv]

Testing

A license holder may not sell or use harvested plants unless a test of the sample for the lot associated with the harvested plant is at or below the acceptable hemp THC level.[xcv]  The acceptable hemp THC level is defined as “a delta-0 tetrahydrocannabinol content concentration level on a dry weight basis, that, when reported with the laboratory’s measurement of uncertainty, produces a distribution or range that includes a result of 0.3% or less.”[xcvi]  The regulations include the following example:  “If the reported delta-9 tetrahydrocannabinol content concentration level of a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content level on a dry weight basis for this sample ranges from 0.29% to 0.41%.  Because 0.3% is within[xcvii] the distribution or range, the sample is within the acceptable hemp THC level.”

Testing related to the TDA hemp program may only be conducted by an independent laboratory registered with TDA or by a State of Texas Laboratory operated by TDA or its representatives.[xcviii]  In order to be registered with TDA, an independent lab must submit an application, be accredited by an independent accreditation body in accordance with the International Organization for Standardization ISO/ICD 17025, and be registered with DEA.[xcix] A list of registered laboratories shall be available to license holders on the TDA website.[c]  A license holder may select a registered laboratory to conduct testing unless the license holder has an ownership interest in the lab or has less than a 10% ownership interest in the lab if the lab is a publicly traded company.[ci] A license holder is responsible to pay for all laboratory fees.[cii]

A lab must use appropriate, validated methods and procedures for all testing activities and must evaluate the measurement of uncertainty.[ciii]  At a minimum, testing of samples for delta-9 tetrahydrocannabinol content must use post-decarboxylation or other similarly reliable methods approved by TDA.[civ]  The testing method must consider the potential conversion of the  for delta-9 tetrahydrocannabinolic acid (THCA) into delta-9 tetrahydrocannabinol (THC) and the test result reflect the total available THC derived from the sum of the THC and THCA content.[cv]

Labs must test samples in accordance with TDA’s “Testing Procedure,” which is not yet publicly available.[cvi]  The lab shall maintain chain of custody for each sample using a TDA prescribed form.[cvii]  All samples shall be retained by the lab for at least 30 business days from the sample collection date.[cviii]

Labs must electronically send test results to the license holder and TDA no later than the 14th business day from the sample collection date.[cix]  Results shall include the total delta-9 tetrahydrocannabinol content on a dry weight basis and the measurement of uncertainty.[cx]  Any sample test result showing with at least 95% confidence that the THC content of the sample exceeds the acceptable hemp THC level shall be conclusive evidence that one or more cannabis plants or plant products from the lot represented by the sample contain a THC concentration in excess of that allowed. If the results of a test conclude that the THC levels of a sample conclusively exceeds the acceptable hemp THC level, the laboratory will promptly notify the producer and the Department or its authorized agent.[cxi]

A license holder may request a retest of the original sample within 5 days of receiving the results of the first test.[cxii]  The retest must be conducted by the same laboratory using the same sample that was used in the first test.[cxiii]  The retest results are final.[cxiv]

Destruction of Unauthorized Plants

A license holder has the legal duty to destroy, at the license holder’s own expense in accordance with DEA reverse distributor regulations, and without any compensation from the State or Federal government the following:[cxv]

  • Any material found in excess of an acceptable hemp THC level.[cxvi]
  • Any plants located in an area that is not licensed by TDA.
  • Any plants not accounted for in required reporting to TDA.

With regard to plants over the acceptable hemp THC level, a final test result exceeding the acceptable hemp THC level is conclusive evidence that the lot represented by the sample is non-compliant with state and federal law.[cxvii]  Cannabis on that lot may not be further handled, processed, or enter the stream of commerce for any purpose other than disposal in strict compliance with the Controlled Substance Act and DEA regulations.[cxviii]

Within 5 days of receiving a notice of disposal from TDA, a license holder must contact a DEA-registered reverse distributor or other authorized person or entity to request the required disposal.[cxix]  All plants must be surrendered to the authorized person and all fees and costs required for destruction will be the responsibility of the license holder without compensation from TDA, the State of Texas or the United States.[cxx]  Within 7 days of receiving a final test result exceeding the acceptable hemp THC level, a license holder must submit a completed disposal report to TDA.[cxxi]  Receipt of this report triggers a potential TDA field inspection.[cxxii]

All license holders who intend to dispose of non-compliant plants must notify TDA and USDA and verify disposal by maintaining and submitting required records.[cxxiii]

Enforcement

There are a number of enforcement provisions related to enforcement for violations of these regulations.

Complaints

Any person who believes a violation of these regulations has occurred may file a complaint with TDA.[cxxiv]  TDA will, as soon as possible, notify the person believed to be responsible for violations described in the complaint, as well as the owner or lessee of land where the incident allegedly occurred, of the existence of the complaint.[cxxv]  TDA will investigate the complaint and make a written report.[cxxvi] The written report will be made available to the public to the extent allowed by the Texas Public Information Act.[cxxvii]

Negligent Violations

Hemp producers shall be subject to enforcement for negligently producing hemp or for negligently producing cannabis that exceeds the acceptable hemp THC level.[cxxviii]  Negligence is defined as “failure to exercise the level of care that a reasonably prudent person would exercise in complying with the regulations.”[cxxix]

Negligent violations include:[cxxx]

  • Failure to provide a legal description of geospatial location of the facility on which the license holder produces or stores hemp;
  • Failure to obtain a license or other required authorization from TDA;
  • Production of cannabis with a delta-9 tetrahydrocannabinol concentration exceeding the acceptable hemp THC level.

Importantly, if a producer uses reasonable efforts to grow hemp, but the test results show a delta-9 tetrahydrocannabinol concentration exceeding the acceptable hemp THC level, the producer has not committed a negligent violation so long as the THC level is below 0.05%.[cxxxi]

For each negligent violation, TDA will issue a Notice of Violation and require the license holder to submit a corrective action plan.[cxxxii]  A corrective action plan must include, at a minimum, the date by which correction action will be taken for each violation, steps to correct each negligent violation, and a description of the written procedures to demonstrate compliance with applicable law and TDA policy and procedures, which may include additional reporting requirements to show compliance.[cxxxiii]  If a corrective action plan is approved, the license holder shall comply with the plan to cure the negligent violation and the plan will be in place for a minimum of 2 years.[cxxxiv]  If a corrective action plan is denied, the license holder’s license will be revoked.[cxxxv]  If a subsequent violation occurs while a corrective action plan is in place, a new corrective action plan must be submitted with a heightened level of quality control, staff training, and quantifiable action measures.[cxxxvi]  TDA or any US authority shall conduct inspections to determine if the corrective plan has been implemented.[cxxxvii]

Negligent violations shall not result in criminal enforcement actions in Texas.[cxxxviii]  A license holder that negligently violates the terms of a license 3 times in a 5-year period shall have their license revoked and be ineligible to produce hemp for a period of 5 years beginning on the date of the third violation.[cxxxix]

Violations with a Culpable Mental State Greater than Negligence

A license holder who is found by TDA to have violated any statute or regulation governing their participation in the hemp program with a culpable mental state greater than negligence shall be subject to license suspension, license revocation, and monetary civil penalties, as discussed below. [cxl]  A culpable mental state greater than negligence is defined as acting “intentionally, knowingly, willfully, or recklessly.”[cxli]

Additionally, TDA shall immediately report such person to the US Attorney General, Texas Department of Public Safety, Office of the Texas Attorney General, and other law enforcement agencies with appropriate jurisdiction.[cxlii]

Penalties

There are a number of penalties provided for under the TDA regulations.

First, TDA may suspend a license if TDA receives credible evidence establishing that a license holder violated a provision of this chapter or failed to comply with a written order from TDA related to negligence.[cxliii]  A person whose license has been suspended shall not produce, cultivate, handle, or remove hemp or cannabis from its location at the time the Department issued a notice of suspension without written permission from TDA.[cxliv]  A license holder has the right to appeal the suspension.[cxlv]

Second, licenses shall be immediately revoked if a person:[cxlvi]

  • Pleads guilty to or is convicted of a felony related to a controlled substance;
  • Made a false statement or provided false information to TDA with a culpable mental state greater than negligence;
  • Is found to be growing cannabis exceeding the acceptable hemp THC level with a culpable mental state greater than negligence or negligently violated this chapter three times in five years.

Third, there are a number of potential administrative penalties that may be assessed on a person who violates these regulations.[cxlvii]  Failure to pay such administrative penalties is a violation of TDA regulations.[cxlviii]

Finally, persons who believe they have been adversely affected by the assessment of an administrative action may appeal the decision to TDA.[cxlix]  If TDA sustains the appeal, the person will retain their license and not be subject to administrative action proposed by TDA.[cl]  If TDA denies the appeal, the license will be revoked or suspended and any administrative penalties imposed.[cli] A person may request a formal adjudicatory proceeding.[clii]

Reporting & Record Keeping

There are a number of reporting and record keeping requirements that growers must follow.

First, license holders must maintain records and reports of all hemp plants acquired, produced, handled, sampled and collected, or disposed of for at least 3 years.[cliii]  All records, including the acquisition of hemp seeds or cultivars, regarding hemp production, handling, sampling and collection, records regarding disposal of plants exceeding the acceptable hemp THC level, and records regarding the transportation of hemp  must be available for inspection by TDA or US authorities during reasonable business hours.[cliv]

Second, growers must report to USDA Agricultural Marketing Service or USDA Farm Service Agency the following information, consistent with USDA requirements:

  • License number, street address, facility and lot geospatial location including all transplantation areas where hemp is and will be produced;[clv]
  • Acreage dedicated to the production of hemp or greenhouse indoor square footage dedicated to the production of hemp, and the total acreage or square footage of hemp planted, harvested and disposed.[clvi]
  • Any change in the facility or lot geospatial location or amount of acreage dedicated to the production of hemp, and any change in the facility or lot geospatial location or amount of greenhouse indoor square footage dedicated to the production of hemp, including the total acreage or square footage of hemp planted, harvested, and disposed due to the changes.[clvii]

Keep in mind that information submitted to TDA is subject to disclosure pursuant to the Texas Public Information Act.[clviii]  All personally identifiable information including physical address, mailing address, driver’s license numbers, background checks, geospatial location, phone numbers and email addresses, will be withheld as permitted by the Texas Public Information Act.[clix]

Third, license holders must submit lot reports to TDA no later than the 20th day after the final sample is collected from a lot, or no later than 180 days from the lot permit issue date, whichever is earlier.[clx]  Reports shall be provided using a TDA form and must contain, at a minimum, the following information for each lot:[clxi]

  • License holder account number;
  • Facility ID and lot ID;
  • Sample IDs and test IDs;
  • Disposition of the cannabis plant materials produced or handled within the lot, including any TDA-issued transportation manifest and certification of disposal including a description of the date and method of disposal;
  • Total acres or square footage of cannabis plant material produced or handled; and
  • A certificated statement indicating whether or not any living cannabis plants remain at any lot and, if any living plants remain, the intended disposition of said plants. If the license holder cultivates the remaining plants, he or she must register the locations of the remaining plants as new lots and pay the applicable participation fee.[clxii]

Finally, a person who sells, offers to sell, distributes, or uses hemp seed in Texas must maintain records of:[clxiii]

  • The origin of the hemp seed (must be retained for 5 years);
  • The person or entity from whom the seed was purchased;
  • Any documentation indicating certification or approval of the province, quality, and variety of the hemp seed; and
  • The location and jurisdiction of the origin of the seed.

[i]  Tex. Agric. Code § 24.8(a).

[ii] Tex. Agric. Code §24.8(c).

[iii] Tex. Agric. Code § 24.8(f).

[iv] Tex. Agric. Code § 24.8(d)(1-2).

[v] Tex. Agric. Code § 24.8(d)(3).

[vi] Tex. Agric. Code § 24.11.

[vii] Tex. Agric. Code § 24.1(41).

[viii] Tex. Agric. Code § 24.8(d)(5).

[ix] Tex. Agric. Code § 24.8(e).

[x] Tex. Agric. Code § 24.10(b).

[xi] Tex. Agric. Code § 24.8(e).

[xii] Tex. Agric. Code § 24.9(a).

[xiii] Tex. Agric. Code § 24.9(b); §24.8(d)(8).

[xiv] Tex. Agric. Code § 24.9(c).

[xv] Tex. Agric. Code § 24.1(32); Tex. Bus. & Orgs. Code 1.002.

[xvi] Tex. Agric. Code § 24.9(d).

[xvii] Tex. Agric. Code § 24.8(h).

[xviii] Tex. Agric. Code § 24.8(g).

[xix] Tex. Agric. Code § 24.12.

[xx] Tex. Agric. Code § 24.12(c).

[xxi] Tex. Agric. Code § 24.13(c).

[xxii] Tex. Agric. Code § 24.13(c).

[xxiii] Tex. Agric. Code § 24.17(a).

[xxiv] Tex. Agric. Code § 24.1(46).

[xxv] Tex. Agric. Code § 24.1(24).

[xxvi] Tex. Agric. Code § 24.1(8).

[xxvii] Tex. Agric. Code § 24.1(26).

[xxviii] Tex. Agric. Code § 24.39(a).

[xxix] Tex. Agric. Code § 24.39(b).

[xxx] Tex. Agric. Code § 24.40.

[xxxi] Tex. Agric. Code § 24.43.

[xxxii] Tex. Agric. Code § 24.41.

[xxxiii] Tex. Agric. Code § 24.8(c).

[xxxiv] Tex. Agric. Code § 24.24.5(a).

[xxxv] Tex. Agric. Code § 24.8(c).

[xxxvi] Tex. Agric. Code § 24.8(c).

[xxxvii] Tex. Agric. Code § 24.5(b).

[xxxviii] Tex. Agric. Code § 24.5(c).

[xxxix] Tex. Agric. Code § 24.5(d).

[xl] Tex. Agric. Code § 24.6(a).

[xli] Tex. Agric. Code § 24.6(b).

[xlii] Tex. Agric. Code § 24.6(c).

[xliii] Tex. Agric. Code § 24.6(d).

[xliv] Tex. Agric. Code § 24.6(e).

[xlv] Tex. Agric. Code § 24.7(a).

[xlvi] Tex. Agric. Code § 24.7(b).

[xlvii] Tex. Agric. Code § 24.7(c).

[xlviii] Tex. Agric. Code § 24.7(d).

[xlix] Tex. Agric. Code § 24.13(b).

[l] Tex. Agric. Code § 24.45.

[li] Tex. Agric. Code § 24.44(b).

[lii] Tex. Agric. Code § 24.44(a).

[liii] Tex. Agric. Code § 24.46(a).

[liv] Tex. Agric. Code § 24.46(b).

[lv] Tex. Agric. Code § 24.46(c).

[lvi] Tex. Agric. Code § 24.42.

[lvii] Tex. Agric. Code § 24.1(68).

[lviii] Tex. Agric. Code § 24.15(a).

[lix] Tex. Agric. Code § 24.15(a).

[lx] Tex. Agric. Code § 24.15(a).

[lxi] Tex. Agric. Code § 24.15(b).

[lxii] Tex. Agric. Code § 24.15(c).

[lxiii] Tex. Agric. Code § 24.15(d).

[lxiv] Tex. Agric. Code § 24.23(a).

[lxv] Tex. Agric. Code § 24.313(d).

[lxvi] Tex. Agric. Code § 24.16.

[lxvii] Tex. Agric. Code § 24.14(a).

[lxviii] Tex. Agric. Code § 24.14(d).

[lxix] Tex. Agric. Code § 24.13(e).

[lxx] Tex. Agric. Code § 24.13(e).

[lxxi] Tex. Agric. Code § 24.14(c).

[lxxii] Tex. Agric. Code § 24.23(c).

[lxxiii] Tex. Agric. Code § 24.13(f).

[lxxiv] Tex. Agric. Code § 24.13(g).

[lxxv] Tex. Agric. Code § 24.13(j).

[lxxvi] Tex. Agric. Code § 24.13(h).

[lxxvii] Tex. Agric. Code § 24.20(b).

[lxxviii] Tex. Agric. Code § 24.13(a).

[lxxix] Tex. Agric. Code § 24.20(a).

[lxxx] Tex. Agric. Code § 24.13(a).

[lxxxi] Tex. Agric. Code § 24.13(i).

[lxxxii] Tex. Agric. Code § 24.13(i).

[lxxxiii] Tex. Agric. Code § 24.23(a).

[lxxxiv] Tex. Agric. Code § 24.21(a)(1).

[lxxxv] Tex. Agric. Code § 24.21(a)(2).

[lxxxvi] Tex. Agric. Code § 24.23(b).

[lxxxvii] Tex. Agric. Code § 24.21(b)(2).

[lxxxviii] Tex. Agric. Code § 24.21(b)(2).

[lxxxix] Tex. Agric. Code § 24.21(b).

[xc] Tex. Agric. Code § 24.21(b)(4).

[xci] Tex. Agric. Code § 24.21(b)(5).

[xcii] Tex. Agric. Code § 24.20(c).

[xciii] Tex. Agric. Code § 24.21(b)(3).

[xciv] Tex. Agric. Code § 24.21(b)(3).

[xcv] Tex. Agric. Code § 24.23(d).

[xcvi] Tex. Agric. Code § 24.1(2).

[xcvii] Tex. Agric. Code § 24.1(2).

[xcviii] Tex. Agric. Code § 24.24(a)(1); § 24.24(c).

[xcix] Tex. Agric. Code § 24.24(a)(2-3).

[c] Tex. Agric. Code § 24.24(b)(2).

[ci] Tex. Agric. Code § 24.24(b)(2).

[cii] Tex. Agric. Code § 24.24(b)(3); § 24.24(c)(3).

[ciii] Tex. Agric. Code § 24.26(a).

[civ] Tex. Agric. Code § 24.26(b).

[cv] Tex. Agric. Code § 24.26(c).

[cvi] Tex. Agric. Code § 24.27(a).

[cvii] Tex. Agric. Code § 24.27(b).

[cviii] Tex. Agric. Code § 24.27(c).

[cix] Tex. Agric. Code § 24.28(a).

[cx] Tex. Agric. Code § 24.28(b).

[cxi] Tex. Agric. Code § 24.28(c).

[cxii] Tex. Agric. Code § 24.29(a).

[cxiii] Tex. Agric. Code § 24.29(b-c).

[cxiv] Tex. Agric. Code § 24.29(d).

[cxv] Tex. Agric. Code § 24.13(b).

[cxvi] Tex. Agric. Code § 24.31(a).

[cxvii] Tex. Agric. Code § 24.31(b).

[cxviii] Tex. Agric. Code § 24.31(b).

[cxix] Tex. Agric. Code § 24.31(c)(1).

[cxx] Tex. Agric. Code § 24.31(c)(2).

[cxxi] Tex. Agric. Code § 24.30(a).

[cxxii] Tex. Agric. Code § 24.30(b).

[cxxiii] Tex. Agric. Code § 24.31(d).

[cxxiv] Tex. Agric. Code § 24.32(a).

[cxxv] Tex. Agric. Code § 24.32(d).

[cxxvi] Tex. Agric. Code § 24.32(b).

[cxxvii] Tex. Agric. Code § 24.32(c).

[cxxviii] Tex. Agric. Code § 24.33(a).

[cxxix] Tex. Agric. Code § 24.1(49).

[cxxx] Tex. Agric. Code § 24.33(b).

[cxxxi] Tex. Agric. Code § 24.33(c).

[cxxxii] Tex. Agric. Code § 24.33(d).

[cxxxiii] Tex. Agric. Code § 24.33(d).

[cxxxiv] Tex. Agric. Code § 24.33(d).

[cxxxv] Tex. Agric. Code § 24.33(d).

[cxxxvi] Tex. Agric. Code § 24.33(f).

[cxxxvii] Tex. Agric. Code § 24.33(h).

[cxxxviii] Tex. Agric. Code § 24.33(e).

[cxxxix] Tex. Agric. Code § 24.33(g).

[cxl] Tex. Agric. Code § 24.34(a).

[cxli] Tex. Agric. Code § 24.1(13).

[cxlii] Tex. Agric. Code § 24.34(b).

[cxliii] Tex. Agric. Code § 24.5(a).

[cxliv] Tex. Agric. Code § 24.35(b).

[cxlv] Tex. Agric. Code § 24.35(d).

[cxlvi] Tex. Agric. Code § 24.36

[cxlvii] Tex. Agric. Code § 24.37; Tex. Agric. Code 12.020.

[cxlviii] Tex. Agric. Code § 24.37.

[cxlix] Tex. Agric. Code § 24.38(a).

[cl] Tex. Agric. Code § 24.38(b).

[cli] Tex. Agric. Code § 24.38(c).

[clii] Tex. Agric. Code § 24.38(c).

[cliii] Tex. Agric. Code § 24.18(a).

[cliv] Tex. Agric. Code § 24.18.

[clv] Tex. Agric. Code § 24.13(k)(1).

[clvi] Tex. Agric. Code § 24.13(k)(2).

[clvii] Tex. Agric. Code § 24.13((k)(3).

[clviii] Tex. Agric. Code § 24.4(a).

[clix] Tex. Agric. Code § 24.4(b).

[clx] Tex. Agric. Code § 24.22(a).

[clxi] Tex. Agric. Code § 24.22.

[clxii] Tex. Agric. Code § 24.22(d).

[clxiii] Tex. Agric. Code § 24.47.

 

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