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City Settles Amarillo officials announced on March 11 that the city will pay $5 million to settle the city’s portion of a civil-rights suit brought by individuals arrested in the 1999 Tulia drug sting. “The lawyers for the city did the right thing and got beyond playing games,” says Amarillo solo Jeff Blackburn, who worked to exonerate the 45 people accused of selling drugs to a now-discredited undercover officer who faces perjury charges in the 64th District Court in Swisher County. Marcus Norris, Amarillo’s city attorney, says the pardons that Gov. Rick Perry granted in August 2003 to 35 of the plaintiffs in Tonya White, et al. v. City of Amarillo, et al. compromised the city’s ability to defend itself against the suit, which is pending in the U.S. District Court for the Northern District in Amarillo. “The pardons changed the dynamics of the case,” Norris says. The city of Amarillo is the lead agency in the Panhandle Regional Narcotics Task Force, which oversaw the drug sting. The cities and counties that participated in the task force are the defendants in the suit. Norris says the city agreed to a settlement even though the city had various defenses. Officials were concerned the courts might carve out exceptions to those defenses, which could have resulted in broader liability for local governments, Norris says. Another concern, he says, was the confusion over who was liable for the acts of a task force. Texas Hold ‘Em A sports bar pulled the plug on its planned poker tournament after the Lubbock County District Attorney’s Office advised the owner to fold his hand. Jake’s Sports Caf� owner Scott Stephenson wanted to host a Texas Hold ‘Em tournament at his Lubbock bar: 60 contenders paying a $30 entrance fee for a set number of points/chips/tokens, with the best player winning a prize. He drafted rules and even built special felt-topped tables with padded rails for the players. But the DA’s office caught wind of the event. Assistant Criminal District Attorney John Grace, who’s in charge of the anti-gambling task force at the DA’s office, says he advised Stephenson that the tournament would raise some legal issues and that his best advice would be not to hold it. After Stephenson called it off, he says so many people expressed interest in the event that he started carrying a reference copy of Chapter 47 of the Texas Penal Code, the statute that bans gambling. He says he has contacted several lawyers, but no one represents him yet. By Stephenson’s reading, the statutory definition of “bet” excludes poker, which involves skill; he views his tournament as offering a prize to contestants in a bona fide contest based on skill. Also, he believes the planned entry fee doesn’t constitute a “bet” for statutory purposes. Grace disagrees with Stephenson’s analysis: “Whether poker is a game of skill or chance is a debate that’s gone on for a long time, and they’ve never been able to convince the Legislature. . . . “ No. 45 The Lone Star State recently ranked near the bottom in a survey released March 8 by the U.S. Chamber of Commerce. The “legal fairness” survey, which analyzed responses from 1,400 senior attorneys nationwide -� most of whom are corporate and in-house counsel, according to the chamber -� ranked Texas 45th out the 50 states. The survey, conducted in late 2003 and early 2004, asked attorneys to rate the states in which they practice on a variety of subjects, including treatment of class actions, punitive damages, judicial impartiality and jury fairness. States with the best rankings attract businesses, according to the chamber. “The good news is that Texas has made a great deal of reforms,” says Sean McBride, vice president of communications for the chamber. “Perceptions don’t change overnight. We would expect over time that the perceptions about Texas would change,” McBride adds. But the low ranking shocked some Texas lawyers, who point to the state legislature’s passage last year of the H.B. 4 tort reform measure and to the fact that conservative jurists have dominated Texas benches for years. Fred Baron, a partner in Dallas’ Baron & Budd, calls the survey “absolute garbage. They have impugned the tort law and the administration of law in Texas,” Baron says. McBride disagrees: “It’s not just about juries,” says McBride. He says the survey shows “a holistic understanding of what’s going on in each state.” Tommy Jacks, a former president of the Texas Trial Lawyers Association, says he agrees with the survey’s ultimate conclusion about Texas for different reasons. “Texas is one of the most unfair states in the nation if you’re a consumer,” says Jacks, a partner in the Austin office of Mithoff & Jacks. “I think the perception hasn’t caught up to the reality,” says Rep. Joe Nixon, R-Houston, a corporate litigator and partner in Houston’s Phillips & Akers who passed H.B. 4 last year. “Out of the mouths of babes. “ Public Policy Argument Efforts by Houston’s Tanox Inc. to overturn an arbitration decision awarding fees to its former lawyers ended in February when the Texas Supreme Court decided not to hear the appeal. In pleadings filed with the Supreme Court, new lawyers for Tanox alleged a fee contract between their client and its former lawyers (attorneys from three firms) violated Texas Disciplinary Rules of Professional Conduct. Tanox, a biotechnology company, asked the Supreme Court to take the unusual step of reviewing an arbitration award for public policy reasons. But on Feb. 13, the Supreme Court dismissed Tanox’s request to reconsider its earlier decision denying a petition for review in Tanox Inc. v. Akin Gump Strauss Hauer & Feld, et al. “I’m real disappointed,” says Kenneth Breitbeil, a partner in Houston’s McFall, Martinez, Sherwood & Breitbeil who represented Tanox before the Supreme Court. “Someday the law is bound to change on that, but it didn’t change yet.” Tanox had alleged the arbitration award violated disciplinary rules because it was based on an oral understanding instead of the “four corners” of the fee agreement and because the agreement included a provision that required the client to waive the protections of some disciplinary rules. [ See "Supreme Court Asked to Vacate Arbitration Decision," Texas Lawyer, Dec. 22, 2003, page 1.] Attorneys representing Tanox’s former lawyers claimed the Supreme Court did not have jurisdiction and alleged Tanox’s public policy arguments do not exist. Julius Glickman, a partner in Houston’s Glickman & Barnett who represented the former lawyers in the appeal, says the court’s decision “vindicates the lawyers completely and allows them to finally, after eight years, begin to get the fee that they have earned a long time ago.” Glickman says Tanox’s former lawyers were earlier paid close to $10 million in fees, but will earn more from future royalties paid to Tanox.

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