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Articles 331 - 360 of 1054
Full-Text Articles in Environmental Law
Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers
Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers
St. Mary's Law Journal
Abstract Forthcoming.
A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham
A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham
St. Mary's Law Journal
Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …
Honest Services Fraud After Skilling., Pamela Mathy
Honest Services Fraud After Skilling., Pamela Mathy
St. Mary's Law Journal
The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan
St. Mary's Law Journal
The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …
Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray
Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray
St. Mary's Law Journal
The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott
St. Mary's Law Journal
Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …
A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black
A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black
St. Mary's Law Journal
When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …
Hall's Standards Of Review In Texas Foreword., Wallace B. Jefferson
Hall's Standards Of Review In Texas Foreword., Wallace B. Jefferson
St. Mary's Law Journal
Abstract Forthcoming.
Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery
Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery
St. Mary's Law Journal
Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Standards of review are the cornerstones of appeals. These standards must be woven into the discussion of the facts and substantive law in a manner which persuades the appellate court that the trial court erred. Litigants must measure their factual and legal arguments against the appropriate rubric to write an effective and persuasive brief. Appellate judges agree that mechanical recitation …
New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley
New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley
St. Mary's Law Journal
A new law that recently took effect has changed the way non-judicial real property foreclosure sales work in Texas. The new law, known as House Bill 655 (HB 655), relates to foreclosure sales in Texas. HB 655 amends the language of Texas Property Code section 51.0075(f) dealing with when the purchase price is due at a foreclosure sale. The amendment, however, complicates foreclosure sales in Texas. The purchase price at the foreclosure sale is no longer due immediately. Instead, if a purchaser at a foreclosure sale requests additional time to deliver the purchase price, the trustee—the person conducting the foreclosure …
Unequal And Unfair: Why Texas Should Require Mandatory Sales Price Disclosure To Reconcile The Texas Property Tax Code With The Texas Constitution., Nathan Morey
St. Mary's Law Journal
Appraisal districts in Texas are implementing a system of taxation that is unequal and unfair. Texas counties, cities, and school districts depend on local ad valorem property taxes for revenue. Under the Texas Property Tax Code, the Code establishes appraisal districts to determine the value of taxable property. There is, however, a discrepancy between the cash value of the land and its appraisal value, especially when compared to commercial property and residential property. Commercial property and high-end residential real estate are often undervalued by appraisal districts throughout the state. Because commercial properties are under-appraised, the tax burden is being unequally …
Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms., Susan Saab Fortney
Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms., Susan Saab Fortney
St. Mary's Law Journal
This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.
If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson
If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson
St. Mary's Law Journal
The Supreme Court of Texas and the Texas Court of Criminal Appeals adopted the Standards for Appellate Conduct (Standards) on February 1, 1999. The Standards are intended to “give practitioners a valuable tool to use with clients who demand unprofessional conduct” by imposing “an affirmative duty to educate the client about the Standards of Appellate Conduct.” The Standards further state they do not “alter existing standards of conduct under the Texas Rules of Disciplinary Procedure, or the Code of Judicial Conduct.” Under the Rules of Disciplinary Procedure, sanctionable conduct includes “acts or omissions…which violate one or more of the Texas …
Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts., Nancy B. Rapoport
Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts., Nancy B. Rapoport
St. Mary's Law Journal
Bankruptcy courts see too many incompetent bankruptcy lawyers, and the courts have few options for dealing with them. A court can rule against the lawyer, but this strategy punishes the lawyer’s client, who may be an innocent bystander. Alternatively, nothing prohibits a judge from deciding to hand down a sanctions opinion. Sanctions opinions arise when one party makes a request, or the court believes a lawyer’s behavior is serious enough to merit a written order. These instances include flouting the law—either bankruptcy law or the ethical rules—or being unaware of the fundamentals of bankruptcy practice and policy. In the instance …
Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly
Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly
St. Mary's Law Journal
In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …
Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank
Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank
St. Mary's Law Journal
Since the Enron debacle, shareholders have increasingly filed suit in state and federal courts to recoup financial losses resulting from fraudulent representations made by failing corporations. These shareholders have advanced common law misrepresentation claims against publicly traded companies for alleged fraudulent U.S. Securities and Exchange Commission (SEC) filings. Originally, the scope of liability for common law fraud was very narrow. This scope was later broadened in an attempt to provide protection to individuals commonly victimized by fraudulent behavior. Texas courts have gone to great lengths to ensure the “expectation of influencing conduct” requirement for common law fraud requires more than …
Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum
Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum
St. Mary's Law Journal
The Texas Public Information Act (TPIA) grants everyone a statutory right to access records of a governmental body unless disclosure would violate the law. Generally, TPIA is construed broadly to favor disclosure, but the rise of modern technology like email and text messaging reveals how dated TPIA truly is. According to the recent City of Dallas v. Dallas Morning News, LP, a governmental body is not required to release any business-related electronic communications sent via personal devices. This means governmental employees can conduct official business via personal email or cell phone without being subject to disclosure provisions, unless the requester …
Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez
Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez
St. Mary's Law Journal
In Caperton v. A.T. Massey Coal Co., the United States Supreme Court addressed whether the Due Process Clause of the United States Constitution was violated by the denial of a motion to recuse. The motion sought to recuse a Supreme Court of Appeals Justice from West Virginia. The justice received an extraordinary campaign contribution from the chief officer of a corporate party to a case pending before the court. Several Texas courts addressed whether recusal was necessary based on campaign contributions prior to the decision in Caperton. Texas courts have universally held that recusal was not required. The United States …
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
St. Mary's Law Journal
Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …
Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole
Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole
St. Mary's Law Journal
Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …
Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon
Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon
St. Mary's Law Journal
In 2003 and 2008, the Texas Rule of Appellate Procedure (TRAP) 47 was amended. TRAP 47 is the rule which governs the issuance, citation, and precedential value of unpublished and memorandum opinions. The 2003 amendment was designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and authorizing memorandum opinions in place of unpublished opinions. Despite its intention, the 2003 amendment failed to make civil case law more readily available. This is because such new opinions are only available via electronic repository, such as Westlaw or Lexis. As a result, to completely …
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
St. Mary's Law Journal
Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …
Professional Malpractice In A World Of Amateurs., Thomas D. Morgan
Professional Malpractice In A World Of Amateurs., Thomas D. Morgan
St. Mary's Law Journal
Clients experience the speed at which the world changes, both technologically and socially. They expect lawyers to keep pace. The technology which permits lawyers to deliver legal services faster also chains lawyers to their electronic devices. This technology has also led to a growing market of those who promise to do the same work faster, better, and cheaper. Such developments will ultimately affect how lawyers view professional malpractice or the way the industry understands “competence and diligence normally exercised by lawyers.” The malpractice question becomes: to what standard of care and competence should such “amateur” lawyers be held? The legal …
Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling
Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling
St. Mary's Law Journal
“Extreme [attorney] misconduct may warrant an extreme remedy.” Fee forfeiture certainly constitutes an extreme remedy, at least compared to the ordinary remedy for violation of a legal duty. But neither the degree to which the remedy is extreme nor how extreme the misconduct must first be before the forfeiture becomes appropriate is apparent in light of the Texas Supreme Court’s decision in Burrow v. Arce. Understanding the confusion which has arisen with regard to Burrow’s impact depends in large measure on a thorough evaluation of (1) the basis for the court’s determinations relating to forfeiture, (2) the sources from which …
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
St. Mary's Law Journal
Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …
Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard
Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard
St. Mary's Law Journal
The Texas Supreme Court has failed to provide a bright-line test in determining whether reliance disclaimers are enforceable. A reliance disclaimer is a provision in a contract that disclaims all extra-contractual representations and provides that the contracting parties are not relying on any such representations. By including a reliance disclaimer, a contracting party may be attempting to immunize itself from liability for false statements made during negotiations. Even if a contracting party’s misrepresentations or non-disclosures were made with fraudulent intent, Texas law gives contracting parties broad freedom to contract around misrepresentation claims. In Forest Oil Corp. v. McAllen, the Texas …
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
St. Mary's Law Journal
When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …
Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman
Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman
St. Mary's Law Journal
Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …