Law and Society Commons^™

Preserving Error On Appeal In Texas Civil Cases: A Practical Guide For Civil Appeals In Texas., John Hill Cayce Jr.

St. Mary's Law Journal

Fatal procedural errors can prevent appellees from preserving judgements and appellants from seeking review of court decisions on appeal. This article is a practical guide identifying critical concepts necessary to preserve the various rights of appeal. By examining the Texas Rules of Appellate Procedure, the author identifies procedural pitfalls attorneys may face when attempting to preserve appeals to the Texas Supreme Court or the appellate courts of Texas. Although the Texas Supreme Court has endeavored to eliminate procedural traps from civil appeals, a significant number of requests for appeal fail because lawyers do not follow the requirements necessary to preserve …

Oil In The Persian Gulf War: Legal Appraisal Of An Environmental Warfare., Margaret T. Okorodudu-Fubara

St. Mary's Law Journal

Oil, modern history’s most “powerful” natural economic resource stood at the epicenter of the Iraqi invasion of Kuwait and became the latest unconventional weapon of warfare. The objective of this Article is to assess the legal implications of this recent environmental warfare involving the “oil weapon,” the first of its kind in recorded history. The experiences from national and international wars demonstrate one sure victim of wars, even barring human losses, is the environment. The delicacy of mankind’s planetary ecosystem necessitates urgency addressed to protecting the environment in the international struggle for arms control and disarmament agreement. This Article indicates …

Texas Fetal Rights: Is There A Future For The Rights Of Future Texans., S. Jeffrey Gately

St. Mary's Law Journal

In Texas, contrary interpretations, whether a fetus is a person or non-person, create unpredictable and irreconcilable outcomes. The author contrasts the differences found in Texas law regarding the rights of unborn children in the areas of property, family, criminal, and tort law. At conception, a fetus enjoys property rights. However, under the auspices of family law, a mother may not collect child support until birth but may seek contribution for prenatal care prior to birth. Criminal protection of a fetus is unavailable in Texas unless the fetus is born alive. If criminal activity results in still birth or fetal destruction, …

The Court Of Criminal Appeals Versus The Constitution: The Conclusivity Question., Susan Bleil, Charles Bleil

St. Mary's Law Journal

This Article examines the Texas Constitution’s grant of authority to appellate courts to review questions of fact and the Texas Supreme Court’s treatment of that authority. It then contrasts that treatment with the contrary position taken by the Texas Court of Criminal Appeals since 1981. It also examines the sentiments of the courts of appeals themselves. The analysis of the decisions demonstrates the highest courts of Texas do not uniformly view the constitutional provision in question. It also shows resulting confusion and dissatisfaction. The Court of Criminal Appeals needs a better, more logical approach in interpreting the Texas constitution. Also …

The Carryforward Of Net Operating Losses And Other Tax Attributes After Bankruptcy Reorganizations., Martin M. Van Brauman

St. Mary's Law Journal

When stock is exchanged for debt in a bankruptcy reorganization, potentially abusive tax situations can result if the reorganization occurs strictly for the carryforward of tax attributes to the acquiring corporation. The basic question is to what extent the discharge of indebtedness provisions, the application of the various statutory and judicial requirements, and the consolidated return regulations prohibit or restrict the carryforward of the tax history of the debtor corporation. Bankruptcy reorganization for a corporation under Chapter 11 of the Bankruptcy Code can take the form of either a recapitalization or a reorganization. Because a “G” reorganization involves a discharge …

The Texas Tax Relief Act After Twelve Years: Adoption, Implementation &(And) Enforcement., Michael Weiss

St. Mary's Law Journal

The Texas Tax Reform Act, an amendment to the Texas constitution, undertook to create and enforce spending limits. The Texas Government first followed the spending limits in the 1982-1983 biennium. The threat of veto from Governor Clemments forced the legislature to adopt a budget below the limit. Unfortunately, Texas taxpayers did not see the savings of 1982 repeated in subsequent years. Meaning, the amendment, which passed by an eighty-four percent majority, failed in its purpose for limiting the government growth and spending. The noncompliance of the LBB is in contravention of the people’s will and the laws established to set …

The Scope Of The Eighth Amendment Does Not Include A Per Se Bar To The Use Of Victim Impact Evidence In The Sentencing Phase Of A Capital Trial., Jimmie O. Clements Jr.

St. Mary's Law Journal

In Payne v. Tennessee, the United States Supreme Court held the scope of the Eighth Amendment does not include a per se bar to the use of victim impact evidence in the sentencing phase of a capital trial. As a result of Payne, the realm of information admissible during the sentencing phase of a capital trial now includes victim impact evidence. The use of victim impact evidence improperly diverts the sentencer’s attention away from the defendant’s moral blameworthiness to the victim’s character and reputation. Although advocates of victim’s rights may see this decision as a victory, the reasoning of the …

A Trial Court's Refusal To Question Prospective Jurors About The Specific Contents Of Pretrial Publicity Which They Had Read Or Heard Did Not Violate A Defendant's Sixth Amendment Right To An Impartial Jury, Or Fourteenth Amendment Right To Due Process., Karen A. Cusenbary

St. Mary's Law Journal

In Mu'Min v. Virginia, the United States Supreme Court held a defendant has no right to ask jurors about the potential influence of prejudicial pretrial publicity. A defendant may ask only if the jurors can remain impartial. The Court mandates that overturning a trial court’s jury selection is allowable only if manifest error renders the trial fundamentally unfair. The Court did not find that the case involved sufficient public passion to necessitate a more extensive jury examination by the trial court to include inquiries involving the effect of pretrial publicity. The ruling in Mu'Min leaves too much discretion to the …

Nude Dancing Conveying A Message Or Eroticism And Sexuality Is Protected By The First Amendment But Can Be Limited Under State Police Powers Provided The Government Establishes A Substantial, Content-Neutral Purpose., Fred S. Wilson

St. Mary's Law Journal

In Barnes v. Glen Theatre, Inc., the Supreme Court held the First Amendment protects nude dancing as conveying an expressive message, but state police powers may limit protection if the government establishes a substantial, content-neutral purpose. It is a principal of constitutional law where an actor intends to convey a message by expressive conduct, the First Amendment protection extends to that expression. Traditionally, time, place, and manner regulations restricting expressive conduct based on either the subject-matter of the message or the viewpoint of the actor receive content-based classification. However, content-based regulation of expressive conduct is constitutional only when narrowly drawn …

An Independent And Adequate Procedural Rule Bars A State Prisoner, Who Has Defaulted His Entire Appeal, From Asserting A Federal Claim Unless The Prisoner Demonstrates Cause For, And Actual Prejudice Resulting From, The Procedural Default, Or In The Alternative, Proves A Fundamental Miscarriage Of Justice Will Result If The Federal Habeas Court Fails To Hear The Claim., Jared R. V. Woodfill

St. Mary's Law Journal

The current jurisprudential regime accepts a blanket procedural default policy which denies the federal habeas court its proper constitutional role. An ideological coup d’etat is needed which reappraises the modern procedural default doctrine and supplants it with a rule in the spirit of Fay v. Noia. Such a revolution would emphasize the federal habeas court’s role as a defender of constitutional rights. In an era of multifarious litigation and sociological jurisprudence, a habeas prisoner should not lose his life because a negligent public defender failed to preserve the right in procedural formaldehyde. On April 23, 1982, a court convicted Roger …

An Employer Cannot Avoid Its Obligation To Contribute To An Employee-At-Will's Pension Plan By Terminating The Employee., Carol Jendrzey

St. Mary's Law Journal

In McClendon v. Ingersoll-Rand Co., the Texas Supreme Court held an employer cannot avoid its obligation to contribute to an employee-at-will’s pension plan by terminating the employee. A minority of jurisdictions recognize an implied contract exception to the employment-at-will doctrine allowing termination only with cause. In these jurisdictions, employers who raise the defense of statute of frauds because there is no written employment contract may be defeated by the terms of employment articulated in employee handbooks and manuals. Though both the legislatures and the courts recognize a public policy interest in protecting employee pension plans, the United States Supreme Court …

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

The Stagnation Of Texas Ground Water Law: A Political V. Environmental Stalemate., Karen H. Norris

St. Mary's Law Journal

The rapidly increasing Texas population coupled with the scarcity of water resources has created an urgent need for regulation of ground water pumpage. The extraction of ground water in Texas remains largely unregulated. Texas landowners, by virtue of their surface ownership, have property rights in all underlying ground water. As such, Texas landowners have the right to unlimited pumpage of the ground water beneath their land. Texas landowners have jealously guarded this right at the expense of our environment and future water resources. The Texas legislature created conservative underground water districts to help preserve water resources. However, the limited scope …

42 U.S.C. 1981 Does Not Provide A Remedy For Racial Harassment During Employment., Jeffrey A. Lacy

St. Mary's Law Journal

In Patterson v. McLean Credit Union, the United States Supreme Court held 42 U.S.C. § 1981 does not provide a remedy for racial harassment during employment. In 1976, in Runyon v. McCrary, the Court expanded the scope of § 1981 to cover private discrimination in contractual settings, including racial discrimination in private schools, when previously unavailable. More than a decade after the Runyon decision, the Supreme Court in Patterson, established that there were limits to § 1981’s applicability in private racial discrimination claims. Specifically, the Court held while § 1981 prohibits discriminatory conduct while entering into or enforcing a contract, …

Recognizing An Implied Warranty That Professional Services Will Be Performed In A Good And Workmanlike Manner., Mark L. Kincaid

St. Mary's Law Journal

Although the Court received a deluge of amicus curiae briefs after its initial ruling in Melody Home ushering the Court to reevaluate the consequences of its decision, there is no sound basis for excluding professional services from the implied warranty recognized by the Texas Supreme Court that services will be performed in a good and workmanlike manner. The issue of what is properly considered a “professional” service or what definition is to be applied to distinguish “non-professional” and “professional” services if the latter were to be excluded from the implied warranty. Instead of differentiating between “non-professional” and “professional” services in …

Texas Disciplinary Rules Of Professional Conduct: Additional Liability For Texas Lawyers., Xavier G. Medina, Virginia Coyle

St. Mary's Law Journal

As a result of the enactment of the Texas Disciplinary Rules of Professional Conduct (“Rules”), Texas lawyer no longer practice under guidelines which include aspirational goals and discretionary moral choices. The Rules are mandatory in nature and depict a minimum standard of professional conduct which, if violated, could subject the offending lawyer to disciplinary action. Although the Rules provide a disclaimer stating that they “do not undertake to define standards of civil liability of lawyers for professional conduct,” Texas lawyers fear the Rules will be utilized as an independent basis for liability, or a standard of care for malpractice. The …

The Whole Truth Or Nothing But The Truth - Should Attorneys Who Advertise Be Required To Disclose Prior Disciplinary Actions Taken Against Them., Sara Murray

St. Mary's Law Journal

A state should not require attorneys who advertise to disclose all prior disciplinary actions in their advertisements. Attorney advertising, like other forms of commercial speech, is not immune to state regulation. The American public deserves access to accurate information about legal services, and lawyers have a duty to provide such information. However, attorneys and all other citizens have a constitutional right not to speak. A state must balance the competing interests carefully when the public’s right to know clashes with an individual’s right not to speak. There are several arguments against requiring attorneys to disclose all prior disciplinary actions in …

Texas' New Trademark Antidilution Statute - Useful Or Useless New Protection For Texas Trademarks., Richard Taylor

St. Mary's Law Journal

Texas courts must set forth clear and concise guidelines for trademark antidilution enforcement. The adoption of a trademark antidilution statute substantially alters Texas trademark law. The statute allows a trademark owner to enjoin acts which dilute a registered or common law trademark’s distinctive quality. It applies whether competition exists between the parties or a likelihood of confusion exists as to the owner of the mark. The statute adds a new dimension to trademark protection in Texas because it creates a property interest in the trademark. As promising as these protections sound, the new antidilution statute may prove ineffective due to …

Nonparties To Employment Discrimination Consent Decrees May Attack, In A Collateral Lawsuit, Decisions Made Pursuant To The Decrees., Michael T. Larkin

St. Mary's Law Journal

In Martin v. Wilks, the United States Supreme Court held nonparties to employment discrimination consent decrees may attack, in a collateral lawsuit, decisions made pursuant to the decrees. A consent decree is a voluntary judgment between parties which facilitates settlement of litigation by providing one party with equitable relief. Courts retain jurisdiction over parties to a consent decree, and they can issue contempt orders to parties violating the terms of the decree. Unlike judgments, the parties cannot challenge the consent decrees, except in limited circumstances. Recently, federal courts have widened the scope of preclusion law by defining the term “claim” …

Limitation Of Liability Of Limited Partners While Affording Control Of Partnership Affairs To Limited Partners., Kenneth L. Bennight Jr., Troy (Trey) S. Martin Iii

St. Mary's Law Journal

This article examines the liability provisions of the Texas Revised Act Section 3.03 and compares it with other uniform limited partnership acts. It attempts to ascertain the amount of control a limited partner can exercise over the partnership without risking unlimited liability as a general partner. Limited partners invest capital and share in the profits of the business, but their liability is limited to the amount of capital they invest. If the limited partners exercise control over the business, however, the limited partners may forfeit their limited liability and become liable as general partners. In the last century, the law …

What Price Innocence - A Realistic View Of The Innocent Landowner Defense Under Cercla., Debra L. Baker, Theodore G. Baroody

St. Mary's Law Journal

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to provide the federal government and the states with authority to clean up hazardous waste sites. This article discusses the significance of the so-called “innocent landowner defense” under CERCLA. This Act imposed liability on landowners regardless of the landowner’s contribution to, or awareness of, the presence of hazardous substances on their acquired property. The exceedingly, and apparently unintentionally, harsh impact of CERCLA liability soon became apparent. This article addresses a brief summary of the statute and the manner in which the innocent landowner defense came into existence. …

Digital Audio Recording Technology: Challenges To American Copyright Law., Douglas Reid Weimer

St. Mary's Law Journal

This Article discusses the objectives of American copyright law, its development and its current day codification. The inception of digital audio recording technology (“DAT”) raises new challenges for American copyright law. American copyright is a constitutionally sanctioned and legislatively accorded form of protection for authors against the unauthorized copyright of their “original works of authorship.” A significant copyright issue is the ability of DAT to reproduce nearly perfect copies of copyrighted musical works. This Article further discusses certain aspects of copyright law, such as the fair use defense and the concept of “home” for the purposes of copyright protection. The …

A Reasonable Belief That A Third Party Had Authority To Consent To A Search Is An Exception To The Warrant Requirement., S. Jeffrey Gately

St. Mary's Law Journal

In Illinois v. Rodriguez, the Supreme Court granted certiorari to determine whether a warrantless search is valid when police rely on consent of a third party whom they reasonably believe had common authority over an area but does not. A reasonable belief that a third party had authority to consent to a search is an exception to the warrant requirement. The Fourth Amendment to the United States Constitution protects people and their possessions by prohibiting unreasonable searches by government authorities. Although this protection extends to any place where a person may claim a reasonable expectation of privacy, it especially protects …

Allowing A Child Abuse Victim To Testify Via One-Way Closed-Circuit Television Does Not Violate A Criminal Defendant's Sixth Amendment Confrontation Clause Right If The Trial Court Specifically Finds Such A Procedure Necessary To Protect The Child's Welfare., Lisa R. Miller

St. Mary's Law Journal

In Maryland v. Craig, the Supreme Court held allowing child abuse victims to testify via one-way closed-circuit television does not violate a criminal defendant’s Sixth Amendment Confrontation Clause right if the trial court finds the procedure necessary to protect the child’s welfare. Although “confront” has generally been interpreted to mean “face-to-face,” on occasion, it may yield to public policy considerations and the compelling necessities of particular cases. The original purpose of the confrontation right was to prevent the accusers in a criminal proceeding from using ex parte affidavits or depositions against a defendant, in lieu of personal testimony. The Craig …

A Proposal To Protect Injured Workers From Employers' Shield Of Immunity., Catherine A. Hale

St. Mary's Law Journal

The current workers’ compensation system shields negligent employers from liability and fails to encourage compliance with safety standards. A practical solution is to broaden the judicial definition of intentional conduct and reinstate a common-law negligence action in workers’ compensation statutes. The Texas Workers’ Compensation Act awards compensation to employees for accidental injuries sustained in the course of employment. The Act bars an employee who accepts these benefits from bringing a common-law suit for damages against the employer. The exclusive nature of the workers’ compensation remedy thus leaves employers immune from common-law negligence actions by employees who accept the plan. An …

Hazardous Chemicals In The Workplace: The Employer's Obligation To Inform Employees And The Community., Nelson A. Clare

St. Mary's Law Journal

Significant changes have recently occurred in reporting requirements for employers who have hazardous chemicals in their workplaces. The amended Federal Hazard Communication Standard requires private employers, engaged in a business using hazardous chemicals, to communicate to employees the potential hazards. The Standard requires employers to use: 1) a Hazard Communication Program, 2) labels and other forms of warning, 3) material safety data sheets, and 4) information and training about hazardous chemicals. Local and state governments must compare and reconcile the various and complex provisions relating to the Standard to ensure compliance with all requirements of the respective laws. The Texas …

Private Cause Of Action For Unfair Insurance Claim Settlement Practices Exists Under Texas Deceptive Trade Practices Act And Insurance Code., Gloria F. Christmas

St. Mary's Law Journal

In Vail v. Texas Farm Bureau Mutual Insurance Company, the Texas Supreme Court held a private cause of action for unfair insurance claim settlement practices exists under the Texas Deceptive Trade Practices Act and Insurance Code (DTPA). The DTPA and Insurance Code have repeatedly been used against the insurance industry in the areas of first and third-party claims, particularly in cases involving sales misrepresentations and post-loss claims misconduct. The goal of DTPA is to provide adequate safeguards to aggrieved consumers and, therefore, a broad interpretation of the act allows the courts to provide consumers a remedy and deter the continuance …

Texas Oil And Gas Leases Contain Separate And Distinct Implied Covenant To Further Explore After Lucrative Production., E. Joy Jackson Sparks

St. Mary's Law Journal

In Sun Exploration & Production Co. v. Jackson, the Texas Supreme Court held Texas oil and gas leases contain a separate and distinct implied covenant to further explore after lucrative production. A lease that grants an interest in oil and gas found beneath the ground surface holds several implied covenants. Once successful production begins on a leasehold, implied covenants arise to encourage cooperation between the lessor and the lessee. A covenant is a “promise” between two or more parties to perform or not to perform a specific act. A covenant may be expressly stated within a contract or implied by …

Military Contractors Who Comply With Elements Of Government Contractor Defense Are Immune From Products Liability Suits Stemming From Design Defects., Matthew J. Sullivan

St. Mary's Law Journal

In Boyle v. United Technologies Corp., the United States Supreme Court held military contractors who comply with the elements of the government contractor defense are immune from products liability suits stemming from design defects. Lower courts consider the government contractor defense to be a combination of two separate defenses. The first is the well-settled contract specification defense which eliminates liability for contractors who properly follow client supplied specifications. The second defense is the doctrine of shared sovereign immunity shielding the contractor from liability based on public policy concerns.

In Boyle, the Court held defective design of military equipment will not …

Interference With Prospective Civil Litigation By Spollation Of Evidence: Should Texas Adopt A New Tort., Philip A. Lionberger

St. Mary's Law Journal

Texas courts should adopt a tort for spoliation of evidence. Spoliation of evidence is the tampering with, interference with, loss of, or destruction of evidence. Spoliation of evidence is a serious legal problem because it increases a litigant’s difficulty in proving a cause of action or a defense. Evidence destruction may also increase litigation costs and cause the trial court to make factfinding errors. Texas courts should adopt the tort of spoliation of evidence because it compensates injured litigants and deters future acts of spoliation. Another reason for adopting the tort for spoliation of evidence is the inadequacy of alternative …