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Yea The Texas Supreme Court rightfully granted review on Feb. 13 to Two Thirty-Nine v. Harry J. Joe and Jenkens & Gilchrist, which is, frankly, a poorly reasoned 2001 Dallas 5th Court of Appeals decision that makes it difficult for lawyers to serve in public office. That decision reversed a summary judgment ruling in favor of a former Irving city councilman who is also a shareholder in Dallas’ Jenkens & Gilchrist. A client of Jenkens & Gilchrist had approached then-councilman, Harry Joe, about supporting their interests or withdrawing from a council vote — one that would issue a moratorium on apartment development in Irving, according to the opinion. Joe voted for the moratorium twice, and then abstained from voting a third time on the issue, according to the opinion. Two Thirty-Nine later sued Joe and Jenkens & Gilchrist for alleged legal malpractice and breach of fiduciary duty, according to the opinion; the trial court dismissed the case. But the 5th Court ruled that Joe should have informed Two Thirty-Nine about his vote — even though his lawyer says in an interview that Joe never directly represented Two Thirty-Nine. The ruling, as it stands, gives clients an incredible power to nullify the votes of lawyers who work at big firms and serve in public office. And the Supreme Court is well advised to look at the implications of this decision. Nay Was it grandstanding or what? In an unpublished dissenting opinion issued on Feb. 12, Court of Criminal Appeals Judge Tom Price took the court to task for not granting death row inmate Leonard Rojas’ motion to protect his right to a habeas review in the federal courts. Rojas turned to the CCA because the attorney appointed by the court failed to file the federal habeas writ, cutting off that avenue for review, according to Price’s dissenting opinion in Ex Parte Rojas. In his Nov. 27, 2002, motion, Rojas requested a stay of execution and the appointment of a new state habeas attorney to reopen the state habeas proceedings so that the federal habeas timetables could be reset. The CCA denied Rojas’ motion on Dec. 2, and he was executed two days later. Price is right that the court should have accepted Rojas’ case for review and issued a published opinion to explain its decision. But why did Price choose to write a dissent more than two months after Rojas was executed? As Presiding Judge Sharon noted in a concurring opinion, had Price been present at the conference when the CCA decided the matter, the court would have had an opportunity to discuss his arguments before Rojas’ execution. “As it is, they come too late, serving no apparent legitimate purpose,” Keller wrote. Amen.

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