State is not federal

Originally published by David Coale.

In Marshall v. Hunter, a removed action, the Fifth Circuit addressed a notice of appeal from a state court ruling made before ruling about personal jurisdiction. The Court declined to hear the appeal, saying: “while state court orders and rulings remain in effect upon removal, they do not become appealable orders of the district court until the district court adopts them as its own.” No. 16-20646 (Oct. 20, 2016, unpublished).

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Dallas Volunteer Attorney Program plans 10 free legal clinics in November

Originally published by Amy Starnes.

The Dallas Volunteer Attorney Program will hold 10 free legal clinics in November, providing consultation in civil matters to Dallas County residents who meet certain financial guidelines. Applicants are asked to bring proof of income, identification, and legal papers with them to the clinic.

Schedules and locations are as follows:

Veterans Resource Center (for veterans and their families only), 4900 S. Lancaster Rd, Dallas

• 1:30 p.m., Friday, Nov. 4

East Dallas — Grace United Methodist Church, 4105 Junius St.

• 5 p.m., Thursdays, Nov. 3 and 17

South Dallas — Martin Luther King, Jr. Center, 2922 MLK Blvd., Room 122

• 5 p.m. Tuesdays, Nov. 1, 8 and 22

West Dallas — 2828 Fish Trap Road

• 5 p.m., Thursday, Nov. 10

Garland — Salvation Army, 457 W. Avenue D

• 5 p.m., Thursday, Nov. 17

Friendship West Baptist Church, 2020 West Wheatland Road, Dallas

• 5 p.m., Wednesday, Nov. 16

St. Phillip’s Community Center, 1600 Pennsylvania Ave., Dallas

• 5 p.m., Tuesday, Nov. 15

DVAP is a joint initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas.  For more information on DVAP, click here.

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Opinions, Nov. 1, 2016: Pleading the Litigation Exception to Physician-Patient Privilege

Originally published by maknox.

Happy Dia De Los Muertos! Hope everyone had a safe and fun Halloween last night.

This morning, the First District Court of Appeals released its published opinion in In re Morgan, No. 01-16-00530-CV,  a mandamus concerning the litigation exception to the physician-patient privilege.

Nathaniel Morgan filed for divorce from Nikki Morgan. In his amended petition, Nathaniel requested to be named primary. In January, 2016, he propounded interrogatories and requests for production which included a request for Nikki’s medical, psychological, and psychiatric records.  Nikki objected to the request as outside the scope of discovery, unduly burdensome, and protected by physician-patient privilege. Nathaniel filed a motion to compel and for sanctions. After a hearing, the trial court ordered thirteen pages of medical records concerning a medical condition of Nikki’s to be produced in full after an in camera inspection. Specifically, the trial court found that Nathaniel relied upon Nikki’s condition as part of his claim or defense and that the records were relevant to that condition which triggered the litigation exception under Texas Rule of Evidence 509(e)(4). Nikki filed a petition for writ of mandamus.

The exception applies when “any party relies on the patient’s physical, mental, or emotional condition as part of the party’s claim or defense and the communication or record is relevant to that condition.” TEX. R. EVID. 509(e)(4), 510(d)(5). There is a two-prong test to the exception: “(1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party’s claim or defense, meaning that the condition itself is a fact that carries some legal significance.” Both prongs must be met. But even if both prongs are met, the trial court must perform an in camera inspection of the information.

The Court of Appeals noted that the test is not mere relevance. The condition must be central or ultimate to the claim, as opposed to merely tangential.

In her first issue, Nikki argued that no pleading demonstrated a reliance on a medical condition sufficient to invoke the litigation exception to the physician-patient privilege. Nathaniel’s pleadings did not include an allegation that Nikki’s medical condition affected her suitability to serve as a conservator. Nor did Nikki’s own pleadings raise the issue. Thus, though the trial court found that Nathaniel’s claim relied on Nikki’s condition, the record did not support that finding. Because no pleading or defense mentioned Nikki’s medical condition, the trial court erred by finding the litigation exception applied and ordering the production of the medical records.

Because the Court of Appeals sustained Nikki’s first issue, it did not reach her second issue. The petition for writ of mandamus was granted.

One of the implied holdings of this case is that the claim or defense alleged by the party seeking the medical records must be asserted in writing in the pleadings. One may reasonably suppose that Nathaniel made the argument orally because the trial court found after a hearing that Nathaniel relied upon such claim or defense. This raises the question: If Nathaniel amends his pleadings accordingly, will the litigation exception apply?

 

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Texas Bar Journal must-reads for November

Originally published by Jillian Beck.

Our editors have selected four must-read pieces from the November Constitutional Law issue of the Texas Bar Journal.

Think Local
Navigating First Amendment issues for governing bodies.
By Scott Houston and Stan Springerley

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Fifth Circuit seeks comments on proposed rule changes

Originally published by Jillian Beck.

The United States Court of Appeals for the 5th Circuit is accepting comments about proposed amendments to circuit rules 26, 28, 29, 31, and 32.

Read the full notice, which includes the proposed redline changes, on the court’s website.

The court is accepting written comments through November 15 by email at Changes@ca5.uscourts.gov or by mail at:

Clerk of Court
U.S. Court of Appeals for the Fifth Circuit
ATTN: Rule Changes
600 South Maestri Place
New Orleans, LA 70130

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Types of Credit Card Fraud

Originally published by News Blogger.

Technology has made it easier than ever before for credit card thieves to steal information With much of the world’s commerce taking place online, credit card fraud has become a serious problem. There were over 1,500 data security breaches online in 2014, which resulted in over one billion compromised accounts. Credit card fraud also costs businesses and consumers $190 billion …
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Can You Burglarize Your Own Residence?

Originally published by Brandon Barnett.

Can a Roommate Who is Not on the Lease be Convicted of Burglary of His or Her Own Residence? The Court of Criminal Appeals recently held that a roommate, who…

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