State and Local Government Law Commons^™

D.W.I. Suspects Do Not Have Right To Consult With Counsel Before Intoxilyzer Test Under Texas Constitution Because Test Is Not A Critical Stage In Proceedings., Clifford C. Herberg Jr.

St. Mary's Law Journal

Under the Texas Constitution, D.W.I. suspects do not have a right to consult with counsel before an intoxilyzer test because the test is not considered a “critical stage” in proceedings. In Forte v. State, the Texas Court of Criminal Appeals adopted the critical stage approach and held D.W.I. suspects do not have a right to counsel under the Texas Constitution until the filing of the complaint. The court reasoned because the statute implies consent to the test, and the suspect has no legal right to refuse the test, counsel’s presence would not serve to protect “any known right or safeguard,” …

Fundamental Error When Rule Against Misjoinder Violated By Charging More Than One Non-Property Offense In Same Indictment Resulting In Multiple Convictions., Virginia Coyle

St. Mary's Law Journal

Abstract Forthcoming.

Statutory Claims For Unfair Insurance Settlement Practices - Vail V. Texas Farm Bureau Mutual Insurance Company., Joseph G. Chumlea

St. Mary's Law Journal

No abstract provided.

Warranties, Disclaimers, Limitation Of Remedies, And The Texas Deceptive Trade Practices Act., Thomas Black

St. Mary's Law Journal

No abstract provided.

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 …

Civil Rico: Overview On The Eve Of The 200th Anniversary Of The Federal Judiciary., Dan A. Naranjo, Edward L. Pina

St. Mary's Law Journal

Abstract Forthcoming.

Summary Judgments In Texas., David Hittner, Lynne Liberato

St. Mary's Law Journal

Abstract Forthcoming.

Squeezing The Lemon - Helping Texas Consumers With New Car Problems., Darby Riley

St. Mary's Law Journal

No abstract provided.

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 …

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 …

Jury Trials In The Bankruptcy Courts: Awaiting A Final Verdict., Ann Van Bever, V. Craig Cantrell

St. Mary's Law Journal

No abstract provided.

Miranda Warnings Sufficient To Inform Defendant Of Sixth Amendment Right To Counsel For Postindictment Interrogations., David M. Shearer

St. Mary's Law Journal

Abstract Forthcoming.

Landlord Implicitly Warrants That Commercial Premises Suited For Inteded Use; Tenant's Duty To Pay Rent Dependent Upon Landlord Honoring Implied Warranty., Troy (Trey) S. Martin Iii

St. Mary's Law Journal

Abstract Forthcoming.

Arbitration And Litigation Of Public Customers' Claims Against Broker-Dealers After Mcmahon Symposium - Business Tort Litigation., Joseph L. Hoon Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Common Callings And The Enforcement Of Postemployment Covenants In Texas Symposium - Business Tort Litigation., William H. White

St. Mary's Law Journal

Abstract Forthcoming.

Products Liability: An Argument For Product Line Liability In Texas Symposium - Business Tort Litigation., Charles E. Cantu, David S. Goldberg

St. Mary's Law Journal

In today’s fast-paced business world, buyouts, takeovers, mergers, and other acquisitions are common occurrences. As a consequence of this corporate turnover, the consumer plaintiff injured while using a defective product may find the search for the proper defendant is futile, simply because the product is now marketed by a different legal entity. Generally, the consumer has no recourse against the manufacturer of the particular product which caused the injury if that manufacturer has since dissolved. This apparent unfairness, coupled with an increase in litigation of this nature over the last decade, has led to the judicial recognition of an exception …

Franchise Litigation In Texas: Analyzing Claims And Defenses Symposium - Business Tort Litigation., John G. Lewis

St. Mary's Law Journal

Abstract Forthcoming.

The Road Less Traveled: State Court Resolution Of Patent, Trademark, Or Copyright Disputes Symposium - Business Tort Litigation., Ted D. Lee, Ann Livingston

St. Mary's Law Journal

Abstract Forthcoming.

Terminating The Guardianship: A New Role For State Courts., M. P. Duncan Iii

St. Mary's Law Journal

Abstract Forthcoming.

Settlement Of Disputes Within The Iea Oil Emergency Sharing System., Richard F. Scott

St. Mary's Law Journal

Abstract Forthcoming.

Unlimited Branch Banking In Texas: The Next Step In Deregulation Comment., Mark A. Giltner

St. Mary's Law Journal

Abstract Forthcoming.

Copyright Protection For Intellectual Property Rights To Recombinant Deoxyribonucleic Acid: A Proposal Comment., Donna Smith

St. Mary's Law Journal

Abstract Forthcoming.

Constitutional Law - First Amendment - School Officials Entitled To Regulate Contents Of School Sponsored Newspaper In Reasonable Manner Recent Development., Christopher Nielson Forbis

St. Mary's Law Journal

Abstract Forthcoming.

Texas Civil Procedure - Evidence Of Net Worth - Net Worth Is Discoverable And Admissible Into Evidence For The Purpose Of Assessing Punitive Damages Recent Development., Mark A. Lindow

St. Mary's Law Journal

Abstract Forthcoming.

Constitutional Law - First Amendment - Public Figures And Public Officials May Not Recover For Intentional Infliction Of Emotional Distress For Publication Of Ad Parody Absent A Showing That Publication Contained A False Statement Of Fact Made With Actual Malice Recent Development., Evelyn T. Ailts

St. Mary's Law Journal

Abstract Forthcoming.

Texas Civil Procedure - Bill Of Review - Meritorious Defense Requirement In Bill Of Review Proceeding To Vacate Default Judgment, Without Effective Service Of Process Or Propert Notice Of Default Judgment, And Resulting In Adverse Consequences, Violates The Fourteenth Amendment's Due Process Clause Recent Development., William B. Nash

St. Mary's Law Journal

Abstract Forthcoming.

Federal Taxation - Publicly Traded Partnerships Deemed Corporations For Federal Taxation Purposes: New Internal Revenue Code Section 7704 Recent Development., Edward D. Biggers

St. Mary's Law Journal

Abstract Forthcoming.

Scources Of Liberty In The Texas Bill Of Rights., Arvel (Rod) Ponton Iii

St. Mary's Law Journal

Many historical, economic, and philosophical forces have combined to create a uniquely “Texian” perspective on liberty that has heavily influenced the Texas Bill of Rights. The original Texas Bill of Rights was drafted in 1836, during the ascendancy of Jacksonian democracy, following the successful revolt from the military dictatorship of General Santa Anna. Texans had lived under Spanish civil law, Mexican constitutional law, a Mexican military dictatorship, English common law, and the Bill of Rights of the United States. The Texas Revolution, the fact that many Texans looked to American and English jurisprudence for guidance, the violation of many rights …

Admissibility Of Subsequent Remedial Measures As Evidence In Texas., Wendy Hunkele

St. Mary's Law Journal

Abstract Forthcoming.

The Evolving Concept Of Preemption Removal: An Expansion Of Federal Jurisdiction., Scott Roberts

St. Mary's Law Journal

Federal jurisdiction based on preemption removal should extend to federal laws which meet the requirements of Franchise Tax Board v. Construction Laborers Vacation Trust and Metropolitan Life Insurance Company v. Taylor. The well-pleaded complaint rule restricts federal removal jurisdiction. The well-pleaded complaint rule requires a federal question appear on the face of the plaintiff’s complaint for federal jurisdiction to attach. Therefore, the defendant’s right to a federal forum depends upon whether the plaintiff chooses to invoke a federal claim in its complaint. Courts routinely criticize the linking of removal jurisdiction to the well-pleaded complaint rule for giving plaintiffs incentive to …