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Full-Text Articles in Health Law and Policy
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
St. Mary's Law Journal
Construction is the largest industry in the United States, and some regard the industry as the engine of the nation’s economy. Only the unavailability of unskilled labor can slow the growth of the construction industry in Texas. As such, Texas has welcomed the construction boom and has enacted statutes to accommodate further industry growth. Texas’ first legislative response came in the form of the Residential Construction Liability Act (RCLA). The RCLA alleviated liability for builders incurred under the Deceptive Trade Practices Act (DTPA). In 2003, the Texas Legislature continued to legislate in favor of builders by passing the Texas Residential …
Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow
Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow
St. Mary's Law Journal
Legal malpractice jurisprudence is a dynamic and evolving area of Texas law. In its evolution, many issues have arisen regarding potential areas for attorney liability and discipline. The Texas Supreme Court opinion in Alexander v. Turtur & Associates, Inc. discusses the “suit within the suit” requirement for causation in litigation malpractice cases. The case also raised an important question—whether and in what circumstances causation should be treated as a question of law for the trial judge in the malpractice case, rather than as a question of fact for the jury. The Alexander opinion suggests that both the jury submission issues …
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
St. Mary's Law Journal
Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
St. Mary's Law Journal
In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …
Unintentional Franchising., Mark H. Miller
Unintentional Franchising., Mark H. Miller
St. Mary's Law Journal
The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
St. Mary's Law Journal
The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
St. Mary's Law Journal
The unpredictability of court decisions on covenants not to compete is an attorney’s nightmare in Texas. The Texas Supreme Court's decision in Light v. Centel Cellular (Light II), holding that trade secrets may serve as independent consideration for a valid covenant not to compete, has only exacerbated the situation. Currently, attorneys and clients alike are at the mercy of judicial unpredictability. Texas courts have managed to muddle their own underlying public policy on covenants not to compete with trade secrets. During the years preceding Light II, Texas courts consistently struck a balance between the legitimate rights of employers to protect …
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
St. Mary's Law Journal
Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
St. Mary's Law Journal
The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
St. Mary's Law Journal
The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
St. Mary's Law Journal
In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …
The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan
The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan
St. Mary's Law Journal
Often, the validity of a will is called into question in situations where the testator failed to execute the will in compliance with statutory formalities, although the intent to create a will was present. In Texas, harmless errors in the execution of a will are not excused, and the testator must comply with the statutory formalities set out in the Probate Code. Strict judicial adherence to statutory formalities leads to unjust results in situations where it is relatively clear that the testator intended to create a will but failed to comply with the execution requirements. The failure to comply with …
Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris
St. Mary's Law Journal
Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
St. Mary's Law Journal
The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …
The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long
St. Mary's Law Journal
While few in the legal profession would refer to clients as “property”, it is difficult to think some lawyers do not believe they possess something similar to property rights in their retainer agreements with clients. Not surprisingly, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully “stolen” a client or otherwise interfered with the attorney’s “property.” Courts have traditionally been reluctant to hold attorneys liable for litigation conduct that results in harm to adversaries or their attorneys. Plaintiff-attorneys generally have a better chance of succeeding when they complain that another attorney—while …
The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone
St. Mary's Law Journal
Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could …
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
St. Mary's Law Journal
In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …
Securing One's Fourth Amendment Rights Through Issue Preclusion: Assessing Texas's Application Of Collateral Estoppel To Multiple Suppression Motions Filed In Separate Courts., Garrett T. Reece
St. Mary's Law Journal
This Comment will assess the split in Texas courts over the issue of collateral estoppel’s application in different motion to suppress hearings. By placing collateral estoppel within the confines of the Double Jeopardy Clause, federal law essentially extinguished one form of collateral estoppel and invented another form of the doctrine. Remnants of both forms are still alive, however, and Texas is one state in which both forms of collateral estoppel may be invoked in a criminal proceeding. Part II provides a historical analysis of the exclusionary rule, Double Jeopardy Clause, and collateral estoppel’s rise in criminal court. Part III addresses …
The Charity Oversight Authority Of The Texas Attorney General., John W. Vinson
The Charity Oversight Authority Of The Texas Attorney General., John W. Vinson
St. Mary's Law Journal
The Attorney General of Texas is the only elected official charged with regulating the state’s charitable interest. This duty and authority over charitable assets and entities are comprehensive and unique in themselves. Although the broader state representation role of American attorneys general has evolved considerably and been substantively codified in the statutory law, the area of charity regulations has remained remarkably true to its common law root. This Article will briefly examine the early roots of charity regulation and then discuss the authority and duties of the Attorney General of Texas in the modern context of charity regulation. In Texas, …
Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter
Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter
St. Mary's Law Journal
Because “sue and be sued” language is ambiguous at best, courts should not find that this language is a waiver of immunity. Under Texas law, governmental entities—including the state, its agencies, and political subdivisions—are entitled to sovereign immunity from both suit and liability. For sovereign immunity to be applicable to governmental entities, sovereign immunity applies unless the legislature has clearly and unambiguously waived it. Although numerous Texas appellate courts have held that “sue and be sued” language is a waiver of sovereign immunity, the Texas Supreme Court has squarely addressed the issue only once, in Missouri Pacific Railroad Co. v. …
School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii
School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii
St. Mary's Law Journal
The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …
Confidentiality, Corporate Counsel, And Competition Law: Representing Multi-National Corporations In The European Union Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Sue Bentch
St. Mary's Law Journal
Professional ethics for corporate counsel in the European Union (EU) differs from the standards required in the United States. Consequently, conflicts may arise when US corporations deal with EU countries. For instance, if an issue regarding confidentiality emerges, the company bears the burden to prove to the European Commission that a particular document is protected from disclosure. Under EU’s Regulation 17, the European Commissioner has broad powers to investigate and adjudicate suspected violations of EU competition law. The Commissioner is the equivalent of an investigator, prosecutor, judge, and jury, all rolled into one. If a communication from a company was …
The Seat Belt Defense In Texas., Brian T. Bagley
The Seat Belt Defense In Texas., Brian T. Bagley
St. Mary's Law Journal
This Comment calls upon Texas courts to recognize the seat belt defense as a form of comparative responsibility. It has become standard procedure for Americans riding in motor vehicles to “buckle up.” Seat belt usage has risen since 1994, steadily increasing to seventy-five percent in 2002, with an increase of two percent in the last year alone. Many American jurisdictions, however, still refuse to allow evidence of seat belt use or nonuse to be considered in civil suits. Courts do not allow the failure to wear a safety belt in violation of the mandatory seat belt usage statute to be …
Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton
Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton
St. Mary's Law Journal
This Article describes the present state of roadway police power and explores the vulnerability of drivers and occupants to police abuse, specifically using pretextual stops. Today, state and federal courts have made many police power accommodations to the constitutional reasonableness requirement. Current Fourth Amendment jurisprudence justifies almost all conceivable police seizures of people in vehicles. If the police officer can point out any traffic law violation, he can arrest. And if he can arrest under those circumstances, then the already blurred line between detentions and arrest becomes inconsequential, constitutionally speaking. This Article proposes that the Texas Court of Criminal Appeals …
Legal Malpractice: When The Legal System Turns On The Lawyer Third Annual Symposium On Legal Malpractice & Professional Responsibility: Essay., Jennifer Knauth
Legal Malpractice: When The Legal System Turns On The Lawyer Third Annual Symposium On Legal Malpractice & Professional Responsibility: Essay., Jennifer Knauth
St. Mary's Law Journal
What happens when a lawyer becomes a defendant in a legal malpractice case? Much has been written about the shortcomings of the adversary system as measured against its theoretical goals and assumptions. One significant assumption underlying the adversary system is that there is an equal playing field among litigants. The reality of a legal malpractice case is at odds with this ideal. The prevailing cultural bias against lawyers as gatekeepers and beneficiaries of the legal system permeates every aspect of a legal malpractice case. One effect of this cultural bias is the lawyer-defendant's very personal and disproportionate experience with the …
Aboilishing The Texas Jury Shuffle., Michael M. Gallgher
Aboilishing The Texas Jury Shuffle., Michael M. Gallgher
St. Mary's Law Journal
This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …
Hines 57: The Catchall Case To The Texas Kidnapping Statute., Karen Bartlett
Hines 57: The Catchall Case To The Texas Kidnapping Statute., Karen Bartlett
St. Mary's Law Journal
This Recent Development asserts that the Texas Court of Criminal Appeals’ refusal to define “substantial interference” in relation to the kidnapping statute, opens the floodgates for every act of confinement or movement committed in the course of a substantive offense constituting kidnapping. The Court maintains it is up to the jury to define the term. If the Texas Legislature does not narrowly define the kidnapping statute, virtually every assault, robbery, sexual assault, and some murders will constitute both the substantive offense plus kidnapping. Furthermore, such logic would in effect bootstrap murder into capital murder, which happened in Herrin v. State. …
Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood
Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood
St. Mary's Law Journal
Child support programs across the nation are struggling to achieve even meager recovery of the financial support children need from their parents. Obtaining child support payments from men who are not fathers and who unknowingly signed their rights away is not a sound long-term policy. States must ensure that children are supported and their custodial mothers receive assistance from non-custodial fathers. Logically, the law should only compel a man to support a child he fathered. If a man chooses to assume not only the financial obligation but also the relationship which belongs to the biological father; then such agreement must …
The Texas Courts' Adventures In Locating Texas Coastal Boundaries: Redrawing A Line In The Sand: Kenedy Memorial Foundation V. Dewhurst Defining An Exception To Luttes V. State., Thomas M. Murray
St. Mary's Law Journal
Kenedy Memorial Foundation v. Dewhurst determined the boundary of the Laguna Madre by narrowing the scope of the exception found in Luttes v. State. Luttes established the “mean high tide” test (MHHT), which governs lands controlled by civil law. The MHHT determines a boundary by the mean of the high tide without regard to a summer or winter tide. The exception, however, does not require the application of the MHHT in areas in which tidal gauges could not be used accurately. The Laguna Madre is a shallow strip of water, ranging between three and five miles in width, running between …