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It’s hard to imagine that anything resembling legislation can match, in terms of sheer drama, the palace coup that plotted the overthrow of Texas House Speaker Tom Craddick on Jan. 9. That the attempted coup of Craddick, R-Midland, failed and failed badly will not lessen its impact on legislators or the legislation they intend to carry. Some argue that the iron-fisted Craddick has emerged from this power struggle stronger than ever; those who remained in his camp � conservative Republicans mostly � will likely be rewarded with plum chairmanships and choice committee assignments. But the Craddick rebellion came from within the ranks of his own party, and to hold onto power, Craddick had to align himself with 15 Democrats, some of whom may have a moderating influence on his conservative agenda. Already the state House has felt some movement toward moderation after Democrats posted a net gain of six House seats after the November 2006 election. And with members of Craddick’s own party boldly breaking ranks to unseat him, perhaps Craddick has gotten their message that representative democracy thrives best when legislators, after engaging in vigorous public debate, vote the interests of their district rather than the interests of their speaker. In the 80th legislative session, which began Jan. 9, that debate may get downright rancorous over the hot-button issue of immigrant rights � or wrongs, depending on one’s perspective. Legislators, miffed at Congress’ failure to act, have taken matters into their own hands, filing a flood of highly charged bills that protect or punish illegal immigrants. Whether cooler heads prevail on this issue may depend on whether Congress continues to abrogate its legislative responsibility. But in the meantime, expect opposing forces to lock horns. Hopefully the results won’t be overly divisive. Look for more legislative fireworks in the area of criminal law, particularly regarding enhanced criminalization for sex offenders. Texas, once a pioneer in the area of protecting children from sex offenders, finds itself falling behind other states that have enacted more draconian legislation to further marginalize this group of defendants. To play catch-up, around 30 bills regarding sex offenders have been pre-filed this session. Two of these seek the death penalty for repeat offenders, even at the risk of a likely constitutional challenge. Another bill seeks a mandatory minimum of 25 years in the penitentiary for first-time offenders. Some county prosecutors and victims’ rights groups are opposed to these bills, finding them not conducive to plea bargaining and damaging to the welfare of children, more of whom may be forced to testify, because the defendant has little to lose by going to trial. Environmental law concerns, as incomprehensible as they seem to laypeople and legislators alike, shouldn’t get short shrift either. As long as water remains in scarce supply, water rights and building water capacity will dominate the public debate, and clean-air concerns should receive some legislative priority as Texans turn to coal-burning plants to meet their vast energy needs. Those looking for the battle over tort reform to heat up again may be sorely disappointed. With Texas already leading the nation, according to some studies, in implementing tort reform laws, legislators may be of little mind to re-engage the issue. Trial lawyer groups seem content to nibble at the edges of tort reform, trying only to remove some of the perceived inequities of prior legislative enactments. Tort reform groups such as Texans for Lawsuit Reform claim they have bigger fish to fry, jumping into the fray of judicial selection and jury reform and proposing a vast legislative realignment for the civil side of the Texas judiciary. Their concept of judicial restructuring is so new, the battle lines have yet to form around the issue. But if any lawyer group feels it is being targeted by these changes, or any government entity feels it is being starved for funds or mandated out of existence, all hell may break loose. � Mark Donald Banking/Corporate/Commercial Law by Brenda Sapino Jeffreys On Jan. 9, the first day of the Texas Legislature’s 80th session, lobbyists for the Texas Business Law Foundation set their sights on the Capitol to work on tweaks, adjustments and fixes to the massive rewrite and reorganization of the state’s business laws, which lawmakers approved in 2003. The Business Organizations Code is a continuing issue for the foundation, says John Kuhl, a partner in Sanford & Kuhl in Houston and a lobbyist for the TBLF. “We’re not going to be done until 2010 probably,” Kuhl says of the foundation’s work on the code, which reorganizes, simplifies and modernizes the state’s business laws. Kuhl says the code applies to all business entities created since its Jan. 1, 2006, effective date. But businesses in existence before then have until 2010 to comply, he says, and the foundation is seeking a bill this session that would make it easier for existing businesses to “opt in” and comply with the law, by, for instance, specifying how to amend articles of incorporation. Other amendments to the Business Organizations Code address “errors, ambiguities [and] gaps” that have been identified since the last session, Kuhl says. “Most of this stuff will be relatively nonsubstantive cleanup � but always important,” he says. Anyone who deals with the law “will continue to find things that need to be ironed out, details that need to be fleshed out,” he says. Kuhl says he expects a legislator to file the bill containing amendments to the Business Organizations Code soon. The session ends on May 28. The TBLF, the membership of which includes in-house lawyers and outside counsel, also supports bills that would amend Article 2 of the Texas Uniform Commercial Code, which has to do with sale agreements, and Article 2A, which relates to leases, Kuhl says. “These are laws that relate to interstate commerce, and all the states should be on the same playing field,” Kuhl says. Another TBLF lobbyist, Arthur “Val” Perkins, says most of the Article 2 and Article 2A changes are minor and he does not expect them to be controversial. Perkins, a director in Coats Rose Yale Ryman Lee in Houston, says the foundation also is working on legislation that will include some minor amendments to UCC Articles 3, 4, 7 and 9 that relate to a rewrite of Article 9 that the Legislature approved in 2005. On the banking front, John Heasley, general counsel of the Texas Bankers Association, says the banking industry may find itself caught in the “immigration crossfire” during the legislative session. “A number of bills have been filed and will be filed in an attempt to restrict people who are not here legally,” Heasley says. Heasley says state Rep. Leo Berman, R-Tyler, and state Sen. Royce West, D-Dallas, and a partner in West & Gooden, introduced bills that would impose a fee on money transfers originating in Texas; the fee would raise funds to pay for indigent health care. Berman’s bill, H.B. 29, would impose an 8 percent fee on transfers to Mexico, Central America and South America, but it would allow citizens or legal residents to get a refund of the fee. West’s bill, S.B. 104, imposes a fee ranging from 50 cents to a half of 1 percent of the total amount of money transmissions from Texas to anywhere outside the United States. Heasley says collecting the fee would be burdensome to financial institutions and also could set up an inequality among banks operating in Texas if banks chartered outside Texas are not obligated to collect the fee. The Independent Bankers Association of Texas also is concerned with the bills that would impose the fee on money transfers, says Karen Neeley, general counsel of the IBAT and counsel at Cox Smith Matthews in Austin. In another important matter to bankers, Neeley and Heasley say their groups want the Legislature to pass a bill preventing the formation of branches in Texas by retail companies with industrial-loan charters. Such industrial-loan charters allow those businesses to operate state banks. “The issue is to prevent commercial entities like Wal-Mart and Home Depot from being able to put branches in their stores,” Neeley says. “The risk there is you could really find a squeeze out of community banks due to the commercial clout � power � that these entities have.” The Federal Deposit Insurance Corp. is considering applications from Wal-Mart, Home Depot and other retailers for industrial-loan charters. Home-equity lending is getting another workout before the Legislature. Heasley and Neeley say they expect a lawmaker to file a bill that would make some technical changes to home-equity lending laws in Texas in the wake of Association of Community Organizations for Reform Now, et al. v. Finance Commission of Texas, et al. The suit filed in state court in Travis County in 2004 challenges the finance commission’s authority to interpret Texas’ home-equity lending laws. The commission oversees the banking and financial industries in Texas. “It’s not changes but cleanup to clarify the issues that appear muddy based on pending litigation where it’s just obvious there’s confusion as to what is meant,” Neeley says. Courts and the Judiciary by Mark Donald and Mary Alice Robbins The slam-dunk election of every Dallas County Democrat who ran for judicial office in November � all 42 of them � may have provided the jolt necessary to break the legislative deadlock favoring the nonpartisan selection of judges. The item tops the agenda of special interest groups such as Texans for Lawsuit Reform (TLR), which now stands solidly in the pro-merit-selection camp. Its traditional nemesis, the Texas Trial Lawyers Association (TTLA), has yet to forge a consensus around the issue within its own membership, though it still wants to be part of the public debate, says TTLA President Jay Harvey. While TLR doesn’t see itself “as a prime mover” on judicial selection, says TLR president Dick Trabulsi, it plans on leading the charge for a judicial overhaul that, if enacted, will force a top-to-bottom restructuring of the entire Texas civil court system. With regard to judicial selection, TLR will defer to legislators such as state Sen. Robert Duncan, R-Lubbock, who says he intends to file a bill that would establish a system in which the governor appoints state judges with the advice and consent of the Texas Senate. At the end of a term, a judge would face voters in a retention election where the sitting judge is the only candidate. Duncan, a partner in Crenshaw, Dupree & Milam and a veteran of the legislative battles over merit selection, says, “Dallas is an example of how we’re not selecting judges by their qualifications or merit but simply by the letter behind their names.” Even though the governor would appoint judges under the bill, the current governor strongly opposes their merit selection. “Gov. Perry believes we need to let the people vote,” says Robert Black, Perry’s press secretary. State Sen. Jeff Wentworth, chairman of the Senate Judiciary Committee and a San Antonio solo, supports the bill but says a change to a merit-selection system would require a constitutional amendment, which is immune from the governor’s veto authority. A bigger concern is the Texas House. Although the state Senate passed legislation to establish a merit-selection system for state courts in 1997, 1999, 2001 and 2003, measures authorizing the change have never made it to a vote on the House floor. Perhaps after the sea change in Dallas County, the state House might warm to the issue. Even if it doesn’t, that won’t stymie TLR’s aggressive full-court press to realign the state judiciary. Within the next several weeks, Trabulsi says TLR will release a voluminous report detailing its findings on judicial reform and begin its efforts to find legislative sponsors to help enact the findings. “The Texas judiciary is organized in a hodgepodge fashion and is largely dysfunctional,” Trabulsi says. “We believe that citizens want their government to work, and we want to restructure the judiciary to make things more efficient.” As part of its legislative wish list, TLR is pushing for legislation that would give the Texas Supreme Court discretionary jurisdiction in all civil appellate matters. Osler McCarthy, spokesman for the state Supreme Court, says Government Code �22.001 limits the high court’s jurisdiction. Under that statute, the Supreme Court can consider cases in which justices within a court of appeals disagree on a question of law material to their decision. The Supreme Court also has conflicts jurisdiction over cases in which courts of appeals rule differently from each other or the state Supreme Court on a material question of law. Among other grants of jurisdiction, the high court may consider cases involving a state statute’s interpretation or constitutionality. Although Texas Supreme Court Chief Justice Wallace Jefferson declines to comment on the TLR proposal, Justice Scott Brister says he sees no problem if the Legislature gives the high court discretionary jurisdiction in all appellate matters. “As long as it’s discretionary review, it wouldn’t be a problem. You can always say, “No,’ ” Brister says. Brister says he would have a problem if the Legislature increases matters for mandatory interlocutory appeals, because the court would have to take those cases. TLR also is proposing that all regional administrative districts coincide with courts of appeals districts and that state district court boundaries be redrawn to eliminate overlapping districts to ensure each district court is in a single court of appeals district, Trabulsi says. Perhaps the most comprehensive restructuring would occur on the trial court level, where county courts-at-law and probate courts would be transformed into district courts. “We want a single unified level of trial courts, although we wouldn’t mess with the municipal court jurisdiction,” says Trabulsi. TLR may anticipate some resistance to this aspect of its proposal, because it would shift the funding for much of the trial court system away from county government and directly onto the state. It wouldn’t be a one-time appropriation of funds, but rather a perpetual one. Under the proposal, the Legislature would increase the threshold jurisdictional amount for these district courts to $10,000. Justice of the peace courts would likely pick up any slack, because the plan envisions increasing the cap on their jurisdictional amount to $10,000. The proposal would eliminate small claims courts, as currently constituted. It would also eliminate constitutional county courts in all counties where there are either county courts-at-law or district courts. To sweeten the deal perhaps, the proposal also seeks to increase compensation for judges. With experienced judges leaving the bench because of low pay, the Texas Legislature finally enacted a judicial salary increase in 2005 after seven years of inaction. Jefferson says he’d like to see the Legislature set up some form of compensation commission to analyze whether judges’ salaries in Texas are comparable to judicial pay in other states. Instead of waiting for a crisis to develop in terms of judges leaving office, it would be better if the Legislature looked at the salary issue during its regular sessions every two years, Jefferson says. In an ideal world, as inflation continues to bump up costs, judges should receive a pay raise in every session, he says. Acting on the recommendation of a compensation commission would make considering the pay raises “less of a traumatic event,” Jefferson says. He says the judiciary will look for a legislative sponsor for a bill to establish the judicial compensation commission. “It sounds like a good idea to me,” Wentworth says of the proposed commission. But Wentworth, R-San Antonio, says politics could get in the way. The problem is that state legislators’ retirement pay is tied to state district judges’ salaries, says Wentworth. Critics typically attack efforts to raise the judges’ salaries as a backdoor way of increasing legislative retirement pay. Before legislators could establish a judicial compensation commission, they probably would have to decouple legislative retirement benefits from the judges’ salaries, he says. Trabulsi says he knows TLR’s plans are “ambitious” but anticipates its program of judicial reform will be introduced this legislative session. “Let’s broaden the discussion beyond medical liability lawsuits and deal with issues that affect the whole system from a policy standpoint,” he says. Not surprisingly, TTLA remains suspicious of TLR’s motives, maintaining that TLR’s paramount interest since its inception has been to advance the defense-oriented agenda of corporations and insurance companies. TTLA hasn’t studied TLR’s proposals, and even if it agreed with some of them, it still would want to be part of the public conversation about them, Harvey says. “We have faith that any overhaul of the judiciary will arise from public research provided to elected officials and the broad-based involvement of all sides.” Criminal Law by Mary Alice Robbins The Texas Legislature has sex offenders in its sights, with more than 30 bills dealing with sexual offenses � including legislation that would toughen the penalties for offenders who prey on children � pre-filed for the 2007 session. Robert Black, Gov. Rick Perry’s press secretary, says Perry supports the enactment of Jessica’ Law-type legislation, modeled after a Florida law that sets a mandatory minimum sentence of 25 years in prison for first-time offenders who commit sex crimes against children younger than 14. The Florida Legislature first enacted the Jessica Lunsford Act, named for a 9-year-old girl whom a convicted sex offender allegedly kidnapped, raped and murdered in 2005. Perry favors even tougher punishment than the Florida law permits, however. Black says Perry supports giving child molesters the death penalty if, after their first conviction, they subsequently are convicted of further sexual offenses against children. The governor is not alone. H.B. 8, sponsored by state Rep. Debbie Riddle, R-Tomball, and S.B. 68, sponsored by state Sen. Robert Deuell, R-Greenville, would add sex crimes against children to the list of offenses for which courts could impose the death penalty. Criminal-defense lawyers are likely to oppose those proposals. Former state Rep. Allen Place Jr., a lobbyist for the Texas Criminal Defense Lawyers Association (TCDLA) owner of the Place Law Firm in Gatesville, says Texas always has tied the death penalty to homicide cases with aggravating circumstances. “There would be some concern on our end to have the death penalty be a punishment for a nonhomicide case,” Place says. Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association, says prosecutors particularly favor two bills that state Sen. Florence Shapiro, R-Plano, pre-filed to strengthen sex offender laws. S.B. 78, sponsored by Shapiro, would create a new offense: continuing sexual abuse of a child under age 14, punishable by 25 years to life in prison. Under the bill, the state could prosecute a defendant for continuing sexual abuse if, during a 90-day period, he or she commits more than one offense against one child or multiple children. Currently, when the state alleges multiple sexual offenses against a child, a defendant can request that the prosecution elect a specific date on which the defendant committed an offense, Edmonds says. Under S.B. 78, the jury just has to find that the alleged offenses occurred during the 90-day period specified, he says. The bill eliminates the problem of the jury having to agree unanimously that the defendant sexually assaulted a child on a particular date, Edmonds says. Edmonds says prosecutors also back Shapiro’s S.B. 77, which would eliminate a jury’s ability to give probation to sex offenders. “That doesn’t mean a person still couldn’t get deferred adjudication and probation through a plea agreement,” he says. Place says criminal-defense attorneys hope to persuade the Legislature to redefine who is a sex offender. Under current law, anyone convicted of a sexual offense must register as a sex offender. That includes a 19-year-old youth who is convicted for having sex with his 16-year-old girlfriend, Place says. “Maybe the registration requirement doesn’t make sense in that instance,” he says. Edmonds says prosecutors are watching H.B. 330 by state Rep. Dan Flynn, R-Van, which changes the definition of a gambling device in an attempt to criminalize eight-liners in Texas. Texas Penal Code �47.01 defines a gambling device as “any electronic, electromechanical or mechanical contrivance” on which a player can win any thing of value, based at least partly on chance. But the Legislature provided an exception to that provision for games designed, made and adapted solely for bona fide amusement purposes. H.B. 330 eliminates this so-called “fuzzy animal exception” provided in �47.01(4)(B). Edmonds says the bill provides a new definition for “bona fide amusement” to allow game machines at establishments such as Chuck E. Cheese’s. However, the bill disallows gambling machines such as eight-liners. Edmonds says prosecutors support the idea of clarifying what constitutes a gambling device. “Prosecutors for years have not taken a position on gambling,” he says. “They’ve just wanted clarity so they know what’s legal, what’s illegal and can act accordingly.” Austin solo Keith Hampton, co-chairman of TCDLA’s Legislative Committee, says he hopes the Legislature will clarify who has the burden of proof � the state or the defendant � when a judge is deciding whether to revoke a defendant’s probation and send the individual to prison. Hampton says he supports the approach that state Rep. Sylvester Turner, D-Houston, takes in H.B. 312. Under that bill, if a defendant faces revocation solely for failing to pay probation fees, restitution, court costs or compensation to court-appointed counsel, the state must prove by “a preponderance of the evidence” that the defendant was able but unwilling to pay the amount a court ordered he or she to pay. Alison Brock, Turner’s chief of staff, says Texas Department of Criminal Justice requests for funding to build more prisons have raised concerns about all factors that affect prison overcrowding. Brock says probation fees are exceptionally high in Texas, costing a probationer as much as $150 a month. H.B. 312 tracks the reasoning in the U.S. Supreme Court’s 1983 decision in Bearden v. Georgia, in which the high court held that in revocation hearings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for failure to pay. “If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment,” then-Justice Sandra Day O’Connor wrote for the majority. Four other justices then on the court � William J. Brennan Jr., Harry Blackmun, Thurgood Marshall and John Paul Stevens � joined O’Connor in the decision. Hampton says he also supports Turner’s H.B. 327, which includes a provision that requires a court considering the revocation of an individual’s probation to make the punishment proportional to the nature of the violation. That also would address the problem of overcrowding in the state’s prisons, he says. “Judges get to be tough on crime in their communities, but all of us are paying for it,” Hampton says. Environmental Law by Jonathan Fox Environmental law and natural resources issues will likely be at the forefront of topics debated by the 80th Legislature. New power plant construction, air pollution, the state’s growing thirst for water, river and stream flows, and aquifers will all draw scrutiny in Austin in the coming weeks. Power providers have announced plans to build 19 new coal-fired power plants to meet the state’s growing energy needs, with TXU Corp. seeking to build 11 of the 19 plants. In 2005, Gov. Rick Perry, a Republican, issued an executive order that expedited the permitting process for the proposed plants. Concerned about a potential increase in pollution by new coal plants, Texas mayors, environmentalists and some business leaders want legislators to issue a moratorium or slow down permitting on new plant construction that would allow for more research into the environmental impact of and discussion of alternatives to coal-fired plants, including conservation and cleaner power generating technologies such as coal gasification and nuclear and wind power. The Texas Cities for Clean Air Coalition, which includes mayors of Houston, Dallas and at least 15 other cities, wants regulators to beef up the permitting process for new power plants and list coal gasification technology as a “best available technology” under the state’s Clean Air Act compliance program. Meanwhile, environmental and public interest groups have formed the Alliance for a Clean Texas, which seeks to promote an agenda of energy efficiency and renewable energy. Some business leaders, worried that increased pollution will damage Texas’ business climate, have formed the Texas Business for Clean Air political action committee. TXU defends its $10 billion plant-building plan, which company spokesman Tom Kleckner says will improve state air quality by 20 percent overall – through reducing emissions at and retrofitting older plants, switching to cleaner burning fuels and retiring old plants – while generating much needed new power at low prices. TXU also says coal gasification technology is not yet commercially viable. “It’s not ready right now, and the state of Texas needs power right now,” Kleckner says. So far, no bills have been filed regarding the 19 planned power plants. Meanwhile, the Texas Association of Business, a trade association representing businesses and chambers of commerce, strongly supports the current 19-plant plan as necessary to maintain a reliable power supply. According to a Dec. 15, 2006, TAB press release, the Electric Reliability Council of Texas predicts “dangerously low” energy levels as early as 2008, while the approval of the new coal-fired plants would steady the state’s power supply by 2010. Another proposal backed by clean-air advocates would increase the power of state environmental regulators to enforce state anti-pollution laws limiting toxic air emissions at chemical plants and refineries. The Texas Commission on Environmental Quality (TCEQ) monitors refineries and chemical plants but lacks power to issue warnings, fines and injunctions against polluters, says Beth O’Brien, a spokeswoman for the Texas branch of Public Citizen, a consumer advocacy group. In 2005, the Legislature did not act on a similar proposal. But lawmakers, now backed by a Sept. 27, 2006, Rice University study finding hazardous levels of benzene, 1,3-butadiene and other toxins in the Houston area, have re-introduced bills to give TCEQ enforcement power over plants that emit dangerous levels of contaminants. “This session, we do have momentum,” O’Brien says. A spokesman for the Texas Chemical Council did not return telephone calls seeking comment on the proposals before presstime on Jan. 11. Environmentalists also want lawmakers to repeal a 2005 law they say could lower the minimum amount of energy that Texas power companies must generate from renewable energy sources. Under Texas Utilities Code �39.904(a), Texas electric providers must provide 5,880 megawatts of power from renewable sources by 2015. But �39.904(m) may reduce power companies’ obligations to meet that minimum requirement when parties not charged with such compliance voluntarily buy power from renewable sources, says John Fainter, president and CEO of the Association of Electric Companies of Texas (AECT). Specifically, Texas Utilities Code �39.904(m) requires the Texas Public Utility Commission (PUC) to count all renewable capacity installed in Texas and all renewable energy credits awarded, produced, procured or sold from renewable capacity toward the goal in �39.904(a). The law defeats the expectation of environmentally conscious customers that their purchases will put more green power into the Texas power grid, wrote David Hurlbut, a former PUC economist, in a Dec. 26, 2006, Fort Worth Star-Telegramarticle. TXU’s Kleckner says Hurlbut’s analysis was a “good interpretation” and that the PUC should address the issue in an upcoming rulemaking session. “We look forward to debate on that issue,” he says. Because its members don’t agree on the issue, AECT is not taking a position. But Fainter anticipates that legislators may debate repeal of �39.904(m). Other notable environmental proposals include S.B. 124 and H.B. 344, sponsored by state Sen. Rodney Ellis, D-Houston, and state Rep. Mark Strama, D-Austin, respectively, which would require TCEQ to adopt California’s stricter auto emissions standards, and H.B. 230, introduced by state Rep. Allan Ritter, D-Nederland, which would allow property insurers to give discounts to policyholders on premiums for environmentally efficient buildings. Meanwhile, Texans’ water needs will also be a flashpoint in the 80th Legislature. In its 2007 state water plan, the Texas Water Development Board, which is tasked with assessing the state’s water needs, estimated that it would cost $30.7 million to design, construct or implement 4,500 water management strategies and projects it says are needed to meet Texas’ future water needs. In the state Senate, lawmakers may reprise a failed 2005 proposal by Lt. Gov. David Dewhurst to tax bottled water or find another funding mechanism to pay for billions of dollars’ worth of water projects, says state Sen. Jeff Wentworth, R-San Antonio, a solo. “We’ve got to figure out some way to pay for these water projects for our children and grandchildren,” Wentworth says. Thus far, no bills have been filed in the state Senate to fund future water projects. House lawmakers will consider far-flung suburban water needs, river and stream flows, conservation and limits on water export restrictions by local groundwater districts, says state Rep. Robert Puente, D-San Antonio, chairman of the House Natural Resources Committee and a solo practitioner. Puente says local groundwater districts are struggling with development issues, as developers build new projects in suburban fringes outside the reach of municipal development regulations. Several bills addressing local development issues and water will come before his committee, Puente says. Lawmakers also will debate river and stream flows. The Legislature, Puente says, must balance the needs of upstream water users, downstream users, tourism, and the health of bays and estuaries. The Environmental Flows Advisory Committee, a Perry-appointed panel of scientists and other experts, has issued a report detailing how best to satisfy all stakeholders, Puente says, and lawmakers will examine the panel’s findings. Lawmakers will also discuss measures to increase conservation, which is “cheaper than building a reservoir and cheaper than any other groundwater source,” Puente says. Finally, Puente says, legislators will consider limiting the ability of local groundwater districts to restrict the export of groundwater by private landowners out of local groundwater districts through fees and other measures. Local groundwater districts may assess “reasonable” export fees, he says, but they cannot totally restrict groundwater exports or impose fees that are “too expensive” without committing unconstitutional takings of private property in Texas. Under the rule of capture, groundwater is privately owned in Texas. New legislation would codify a limit on the authority of groundwater districts to impose such fees and other restrictions, he says. Regional and local water issues that will receive attention include a proposal by Wentworth that would permit pumping more water from the Edwards Aquifer, which many South Texans rely on for water. Wentworth supports an increase from 450,000 acre-feet of water to 549,000 acre-feet a year to meet historical use patterns, and he says authorized users already withdraw 549,000 acre-feet a year from the aquifer. But downstream users fear that rivers will dry up for extended periods without restrictions on drawing water from the aquifer during droughts. Family Law by John Council Many family lawyers would like to see the Texas Legislature take a serious look at Chapter 153 of the Family Code as it deals with parenting plans. In 2005, legislators passed Chapter 153.601-611 of the Family Code, which requires both parties in a divorce to propose parenting plans. Those plans establish the parents’ rights and duties with respect to their children. For example, a parenting plan can establish visitation and determine who pays for a child’s education. The same statutes allow judges to appoint a parenting coordinator to resolve the parents’ disputes over the children, primarily after the divorce is finalized. But since the laws passed, some family lawyers have had problems with the parenting plan statute. They would like to see the statute modified – if not completely eliminated. “It’s increased costs and injected a whole new round of participants who need to be paid in order to carry out the orders of the court,” says Steve Bresnen, an Austin solo and lobbyist for the Family Law Foundation, which represents Texas family lawyers. The problem with parenting coordinators is that they don’t have any real power to resolve disputes between parties when it comes to the parties’ children, says Jack Marr, a partner in Victoria’s Marr, Meier & Bradicich and president of the Family Law Foundation. The parenting coordinator can’t order the parties to do anything, and the parenting coordinator can’t report what happens between the parties to the district judge, Marr says. Still, parties are required to pay parenting coordinators’ bills, he says. “These people [the litigants] have to pay for them . . . but nothing gets done. And the money you spend goes to no good,” says Marr, who believes a bill will be introduced during the 80th legislative session to repeal Chapter 153.601-611. Another problem is that parties with children are required to file parenting plans as part of their divorce petitions, Marr says, a requirement he deems busy work for attorneys and clients. If one side fails to file a parenting plan, a judge has the option of adopting the opposing party’s plan, he says. Several family lawyers say the issues in parenting plans are commonly worked out between the parties and adopted in the final divorce decree and that the formal written proposals are unnecessary. And Marr maintains that many courts across the state are ignoring the parenting plan statute. But Debra Lehrmann, judge of Tarrant County’s 360th District Court, says parenting coordinators have been well received in her jurisdiction. She adds that parenting coordinators are just another form of alternative dispute resolution. Parenting coordinators have “been successful in Tarrant County in assisting the lawyers and parties in resolving their disputes,” Lehrmann says. “Of course it doesn’t work in every case.” Lehrmann says she has not seen a case in which a judge ordered one side’s parenting plan to be adopted because the opposing party failed to submit one. “As far as parenting plans, I’ve not seen that,” Lehrmann says. “People still have due process rights, and the courts have to make a decision based upon the evidence.” Lehrmann says Tarrant County has been using parenting plans and parenting coordinators since even before the law was enacted, and she would like to see the state law remain. “I think that any tool that the courts have to assist families in avoiding the kind of conflict that really harms children is beneficial to everyone,” Lehrmann says. Immigration Law by Mark Donald It might have been the absence of action during the last congressional session or the prospect of more inertia coming from the current one, but several state lawmakers are attempting to leap into the void and make immigration law reform – or their version of it – a front-burner issue in this session of the Texas Legislature. Some of these bills take a charitable view of undocumented immigrants, providing them with rights and benefits despite their absence of legal status. S.B. 150 filed by state Sen. Eliot Shapleigh, D-El Paso, would prevent peace officers from acting as immigration officers, prohibiting them from engaging in racial profiling and detaining a person based on his or her immigration status or even inquiring “as to a person’s immigration status.” By his S.B. 151, Shapleigh, an El Paso solo, would place a similar obligation on emergency room medical providers, preventing them from inquiring about the immigration status of a person seeking their care. Any information disclosed would be treated as privileged and confidential. But the majority of immigration-related bills have a more punitive bent, attempting to deter immigrants from illegally entering the United States and to prevent employers from hiring them. H.B. 40, filed by state Rep. Ken Paxton, R-McKinney, would require proof of citizenship or nationality for individuals to receive basic state medical assistance. The bill would ban one method of proof allowable under existing federal regulations governing eligibility for Medicaid beneficiaries – the affidavits of two individuals who attest that the person seeking medical assistance legally resides in this country. Paul Powell, chief of staff for Paxton, a McKinney solo, says, “I could go out on a sidewalk of Austin, Texas, and get two people to swear to anything. Our bill wouldn’t allow that kind of proof.” Currently, illegal immigrants who graduate from Texas high schools are eligible to receive in-state tuition when they attend state colleges. But that would change if state Rep. Debbie Riddle, R-Tomball, has anything to say about it. Her H.B. 104 would require documentation that a person is lawfully authorized to be in the U.S. before he or she could establish in-state residency for higher education purposes. Paxton also has his own version of this bill. “If you are from Kansas, you don’t get to pay in-state tuition. Why should you be able to if you are from Guatemala?” asks Powell. “They can repeal all the tuition they want,” says Luis Figueroa, legislative staff attorney for the Mexican American Legal Defense and Educational Fund (MALDEF). “Undocumented immigrants will still come here to provide for the needs of their families; that is the main incentive. In-state tuition allows them to get an education while they are here. The societal costs to the state are greater if they don’t.” But none of these “anti-immigrant” proposals, as Figueroa calls them, which include a statewide verification system that requires certain employers to check the immigration status of employees they plan to hire and proof of citizenship or nationality to register to vote, seem to go as far as H.B. 28, sponsored by state Rep. Leo Berman, R-Tyler. As if itching for a constitutional fight, Berman seeks to deny certain “state benefits” to the American-born children of illegal immigrants. The bill would ban these citizens from receiving, among other things, Medicaid, children’s health insurance, unemployment and workers’ compensation, as well as any state professional license, including a law license. Gov. Rick Perry seems to have undercut Berman’s efforts, calling proposed legislation such as Berman’s challenge to automatic birthright citizenship divisive. “We need to look at ways to be bringing people together rather than driving wedges between them,” said Perry in a speech given to the Texas Border Coalition, according to an article in the Dec. 7, 2006, Brownsville Herald. Perhaps Perry was responding positively to an Aug. 23, 2006, joint statement of the Texas Association of Business and the Mexican American Legislative Caucus, which, despite congressional dissonance on the issue, threw their support behind a three-part state and federal reform platform that supports tougher immigration enforcement along the Texas-Mexico border and in the workplace, legal avenues for foreign workers “who are needed to sustain economic progress” to legally enter this country and a legislative vehicle that allows undocumented immigrants already in this country to legally remain here. Berman believes the governor will change his mind when he realizes the groundswell of support for Berman’s legislation. “Our mail is running about 35-1 in favor of [H.B. 28],” he says. “People say it’s about time a politician had the intestinal fortitude to say, ‘Enough is enough.’ “ Berman adds, “We have more than 22 million illegal aliens in this country. They have brought tuberculosis, malaria and leprosy here. There are 12,500 illegals in the state prison system and probably another 15,000 in the county and municipal system. It costs Texans $3.5 billion every year to support 1.5 million illegal aliens in Texas alone.” H.B. 28 is just one response to the problem, says Berman. “The people who come here, they say, ‘These gringos are the stupidest people in the world. They tell us we are not welcome to come here, but then, when we do, they offer us free medical care and free citizenship in many cases.’ A pregnant woman crosses the border illegally and doesn’t have to pay a penny for health care,” he adds. “And then she is granted U.S. citizenship for her child as a reward for breaking the law.” Berman expects – almost hopes – that his bill, if enacted, will be challenged by an organization such as the American Civil Liberties Union (ACLU) or the League of United Latin American Citizens (LULAC). “We believe that once we are in federal court, we can get a judge or the U.S. Supreme Court to overrule the interpretation of what it takes to be a citizen,” he says. “American common law is well settled in this area,” counters MALDEF’s Figueroa. “In the 1898 case of United States v. Wong Kim Ark, the [U.S.] Supreme Court held that a child born in the United States, of parents of Chinese descent residing in the United States, was a U.S. citizen as a result of the citizenship clause of the 14th Amendment.” For Berman, a victory in the U.S. Supreme Court holds just a piece of the answer. His H.B. 29 would also place an 8 percent surcharge on any “money transmission” that originates in Texas and is sent to a “destination in Mexico or Central or South America.” He says illegal immigrants from these geographic regions send between $5.2 billion to $5.8 billion a year to their home countries. His bill would recapture $250 million to $400 million a year and earmark it for indigent health care in Texas. “We would charge every wire transfer and then give a rebate to those who show us they are citizens or are here legally,” he says. MALDEF believes H.B. 29 also raises constitutional questions, targeting immigrants from specific geographic areas rather than all immigrants. “We feel that an international wire transfer fee violates the foreign commerce clause in the U.S. Constitution and the state is pre-empted from placing a tax on international trade,” says Figueroa. “We believe that any fee on immigrants is a way to tax the poorest of the poor and is an extremely regressive way of doing it.” Berman notes that he has yet to find a companion sponsor for his legislation in the state Senate but doesn’t believe that will be a problem. “We realize that as a state Legislature, we can’t change the Constitution – we can’t call a constitutional convention,” he says. But with the Texas attorney general obliged to defend state statutes, “what we can do is get into court.” Labor and Employment Law by Jonathan Fox The 80th Texas Legislature will consider proposals to increase the state’s minimum wage, overhaul the state’s unemployment insurance program and prod big employers to expand health care coverage for their employees. Already, state senators and representatives have filed at least five competing bills to raise the minimum wage. The state proposals arrive as the new Democratic House and Senate majorities in Washington, D.C., consider a minimum wage hike to as high as $7.25, which would apply to Texas employers if passed. Introduced by state Rep. Garnet Coleman, H.B. 262 is thus far the most ambitious bill to raise the state minimum wage. It seeks an increase to $7.65 by Sept. 1, 2008, and would tie future adjustments to inflation. In the state Senate, S.B. 95 would increase the base wage to $7.15 and tie future increases to inflation. S.B. 95 was introduced by state Sens. Rodney Ellis, D-Houston; Juan “Chuy” Hinojosa, D-Mission; Eddie Lucio Jr., D-Brownsville; Eliot Shapleigh, D-El Paso; Leticia Van de Putte, D-San Antonio; and Judith Zaffirini, D-Laredo. Ellis, Hinojosa, Shapleigh are all attorneys. The Texas Association of Business, which represents the state’s businesses and chambers of commerce, has pledged to fight any statewide rise in the minimum wage. Minimum wage hikes “have a detrimental impact on business, especially small business,” according to a TAB position paper dated June 2006. TAB did not return several calls for comment before presstime on Jan. 11. The state’s small businesses want lawmakers to overhaul unemployment insurance in a manner that will reduce employers’ costs but maintain and strengthen the program, according to an e-mail from Will Newton, state director of the National Federation of Independent Business. NFIB, Newton writes in the e-mail, favors a reform package developed by the Texas Workforce Commission (TWC) for lawmakers. TWC declines to comment on its plan, which has not yet been released publicly. The Texas AFL-CIO also seeks a “tune-up” to the state’s unemployment insurance system, says Rick Levy, legal director of the Texas AFL-CIO and a partner in Austin’s Deats, Durst, Owen & Levy. Currently, part-time workers are not eligible for unemployment insurance, but the AFL-CIO supports a change to the unemployment insurance program that would allow part-time workers who lose their jobs to receive partial benefits. “The economy is different now,” Levy says, “but changes in [unemployment insurance] eligibility have not kept pace.” The labor group also wants to change the unemployment insurance program to allow the TWC to consider a laid-off employee’s most recent pay period in setting unemployment benefits – information that was not available before computerization of the unemployment benefits system. Such a change would aid “low-income workers who cycle in and out of the workforce” by including what is likely their most remunerative pay period, Levy says. Other AFL-CIO priorities include increasing the state minimum wage, prodding big companies to improve employee health care and giving municipal officials authority to confer with labor union representatives. With more Democrats elected to the state House in 2006, Levy believes labor and employment proposals will get “a fair hearing on their merits” by the 80th Legislature, because of the “emergence of a political center.” Levy wants lawmakers to target large employers, such as retailing giant Wal-Mart, for not “paying enough into health care” to meet the health needs of their employees. In that vein, state Rep. David Leibowitz, D-San Antonio, and an attorney, has introduced H.B. 338, which would require individuals applying for discounted or free health care or services such as Medicaid to identify their employers. H.B. 338 does not name any particular corporation, but Leibowitz calls it “the Wal-Mart bill.” If enacted, he believes that data collected under the bill would show large numbers of Wal-Mart employees applying for public assistance and that this data would prompt further legislation. As Texas’ largest private employer with 150,000 employees, Wal-Mart spokeswoman Lisa Elledge says the company would probably appear on such a list. But she says Wal-Mart offers strong benefits compared to other retailers and also offers health benefits to its part-time workers. “Our plans have stacked up well against other plans,” says Elledge, who notes that last year the company paid $4.7 billion toward employee benefits nationwide, including heath and retirement benefits. The AFL-CIO also supports legislation that would make clear that municipal officials may meet and confer with labor union representatives, although municipalities must retain control over terms and conditions of municipal employment. Texas Local Government Code �146.003 does not prohibit the meet-and-confer practice, but labor leaders want the statute rewritten in a more affirmative manner to clear up confusion over the practice’s legality. “It will improve the quality of work by giving employees more of a say,” Levy says. “At any point, either party can walk away.” Worker training may also be an issue in the upcoming Legislature. Lawmakers may appropriate funds for micro-grants as low as $900 to train workers, says Don Baylor Jr., a senior policy analyst with the Center for Public Policy Priorities, a progressive think tank in Austin. CPPP advocates a program geared toward workers without college degrees that would award small grants so workers can earn certificates and complete other training. “You’re able to serve a lot of people for not a lot of money,” he says. Health care, auto repair and transportation are fields where such grants could make a difference, he says. Other notable bills include H.B. 58, introduced by state Rep. Carl Isett, R-Lubbock, which would exempt sole proprietors from jury duty, and H.B. 38, introduced by state Rep. Burt Solomons, R-Carrollton, a solo, which would require applicants for professional licenses to establish their employment eligibility by providing valid identification and citizenship or residency documents. Real Estate, Probate and Trust Law by Jonathan Fox and Miriam Rozen The 80th Legislature will debate several controversial items affecting Texas real estate law. Lawmakers likely will consider proposed reductions of appraisal caps, limits on eminent domain powers, comprehensive regulation of homeowner associations and mandatory disclosure of real estate sales-price data. Controversy has erupted around proposals to lower the state’s appraisal cap, which currently limits the annual increase in appraised value of a residence homestead to 10 percent. The Texas House’s Committee on Local Ways and Means issued a report on Sept. 1, 2006, resisting a lower cap. Other lawmakers have introduced competing bills with different approaches, such as lowering the appraisal cap to 3 percent or giving localities the option to lower the cap. Ted Royer, a spokesman for the governor, says Perry generally supports appraisal caps. But Royer says the governor is waiting for the Appraisal Reform Task Force to deliver its final report before he backs specific bills. Perry appointed the task force’s 12 members in the fall of 2006; Dallas solo Tom Pauken leads the task force. “The governor wants to find a common-sense solution,” says Royer. Pauken says the task force will finalize its report by the last week in January. First and foremost, he says, it will propose reform of the appraisal process, possibly even creating voter election of appraisers. The task force is also considering appraisal caps. Interest groups have also joined the debate. The Texas Municipal League (TML), a nonprofit organization that represents cities’ interests with state lawmakers, and the Texas Association of Realtors (TAR) vow to fight attempts to lower the appraisal cap. Lowering the cap, a 2006 TAR report says, will only aid a “small number of affluent homeowners,” which will lead to animosity between affluent and more modest homeowners. A related proposal that is drawing fire would require mandatory disclosure of sales prices in real estate sales. Perry’s appraisal-reform task force supports the proposal, introduced in the House by state Rep. Mike Villarreal, D-San Antonio, as H.B. 133. The bill is backed by the Texas Association of Appraisal Districts (TAAD) but opposed by Texas Realtors. Sales data for low- and middle-end homes are well known because of the multiple listing service used by real estate agents, says Jim Robinson, chief appraiser for the Harris County Appraisal District. But the lack of comparable data for high-end and commercial properties, Robinson says, makes it difficult for appraisal districts to appraise and properly tax those properties. This situation is “not fair to the bulk of homeowners,” he says. Texas Realtors, however, strongly oppose sales-price disclosure and dispute the idea that commercial landholders don’t pay their fair share. Sales-price data would not aid appraisers, says Stacey Lawson, a TAR spokeswoman, because the value of commercial properties is tied to revenue coming into the property, which often fluctuates, and other factors such as corporate relocations and new buildings nearby. It’s unclear whether the measure, if enacted, would shift the tax burden, enable the collection of more revenue or do a little of both. An undated TAAD position paper says the plan “would give a tax break to owners of low- to mid-valued homes” by shifting the tax burden, but Villarreal anticipates a revenue boost. “By not having sales information,” Villarreal says, “we gave the wealthiest property owners over $5 billion of taxpayers’ money [in 2005],” money that could have gone toward schools or road-building. Another hot issue is regulation of homeowners’ associations (HOAs), which have drawn scrutiny by foreclosing on homes when owners neglect to pay relatively small HOA assessments. The Texas College of Real Estate Attorneys (TCREA), an independent group of real estate lawyers that provides input on pending real estate legislation, has entered the HOA debate. Its members have drafted the Texas Uniform Planned Community Act (TUPCA), a comprehensive statutory plan to regulate HOAs. If enacted, TUPCA will apply to every HOA in Texas, even those created before the law’s enactment, according to TCREA. “Our goal is to be nonpartisan and draft a good law,” says Richard Spencer, chairman of TCREA and an associate with Houston’s Johnson, DeLuca, Kennedy & Kurisky. The proposed law would encourage alternative dispute resolution in HOA disputes while extending the limitations period for collection of HOA assessment debts from four to 10 years, according to TCREA. In addition, TUPCA would codify a homeowner’s right to obtain records from his or her HOA; limit the fees charged to homeowners by attorneys hired by HOAs; and offer default provisions that would apply to all HOAs unless contradicted by their governing documents. Another proposal seeks to combat identity theft by requiring counties that store property records electronically to redact personal information such as Social Security and driver’s license numbers, says Tom Rutledge, general counsel of the Texas Land Title Association and a shareholder in Austin’s Sneed, Vine & Perry. “The problem with redaction,” he says, “is that county government does not employ enough people to go through every line of every document.” TCREA’s Spencer argues that the proposal is not needed, because few Texas real estate documents contain Social Security numbers or other data that could lead to identity theft. Some other states require such information, which is where the proposal to require redaction may have originated, he says. Finally, Texas legislators may adjust a state law restricting eminent domain or seek a constitutional amendment similar to the law. In 2005, the U.S. Supreme Court issued a controversial decision, Kelo, et al. v. City of New London, et al.The high court upheld a New London, Conn., plan to condemn property and sell it to a private developer to economically rejuvenate an area. The court stated that such a maneuver did not violate the takings clause of the Fifth Amendment, which bars taking private property for public use without just compensation. At the time, Texas lawmakers were in the middle of a special session called to address school financing. As a result of Kelo, state lawmakers in 2005, seeking to limit the use of eminent domain, passed S.B. 7, codified at Texas Government Code �2206.001. S.B. 7 greatly restricted the use of eminent domain powers for purely economic purposes, i.e. to benefit a private developer with hopes that the development will improve the local economy, as opposed to obtain land for a road, school or other public improvement. The issue will surface again this session. Frank Sturzl, executive director of TML, cites H.B. 252, proposed by state Rep. Anna Mawery, R-Fort Worth, as part of a larger trend to extend private property rights and limit local and state governments’ powers of eminent domain. Sturzl believes that Kelohas inspired lawmakers like Mawery, whose bill goes further than legislators did in 2005 and calls for cities to reimburse landowners if their property values decrease as a result of zoning changes. Mawery did not return a telephone call seeking comment before presstime. But Trey Burke, legal counsel for Mawery, measures TML’s opposition as formidable. “This bill would create good policy, but TML is very strong. They generally do prevail,” says Burke, who believes that private property rights should trump cities’ needs to preserve revenues. Sturzl says he expects a consensus among almost all of his members in opposition to Mawery’s proposal but he notes that Houston, a municipality with no zoning ordinances, will not expend any effort fighting this particular piece of legislation. In the probate arena, state Sen. Jeff Wentworth, R-San Antonio, and state Rep. Will Hartnett, R-Dallas, a partner in the Hartnett Law Firm, seek to curb fraud by executors of estates. The two lawmakers have announced that they will introduce legislation requiring executors to send written notices to individuals named in a will detailing what the will says the potential beneficiaries will receive. Meanwhile, the Real Estate, Probate and Trust Law Section of the State Bar of Texas has released its wish list of proposed changes to Texas probate, trust and guardianship statutes. The section seeks a procedure allowing for a person to petition to void his marriage based on mental incapacity at the time of the wedding. The lack of such a procedure in Texas law “makes incapacitated persons vulnerable,” the proposal says. The section’s other proposals in the probate arena would eliminate oral wills, which are allowed in deathbed circumstances when three witnesses are present, and forbid relatives of an ex-spouse from inheriting under a will drafted before the testator’s divorce. In addition, the section seeks to modify state guardianship law codified in Texas Probate Code ��601-905 by permitting probate courts to investigate the need for a guardianship even if no one has filed an application for a guardianship. The section also proposes a method for a probate court to remove a guardian upon discovery that the guardian is unqualified. Finally, the section seeks to amend the Texas Trust Code by allowing trustees holding property for minor beneficiaries to transfer property to trusts that would last beyond the age of 21 so long as the beneficiary does not exercise withdrawal rights. Tort Reform by Mark Donald Rather than rest on its past successes, Texans for Lawsuit Reform is proposing an ambitious legislative agenda, although little of it has anything to do with so-called tort reform. “We believe that what we set out to do in creating a fair civil justice system has been largely achieved,” says Dick Trabulsi, president of TLR, which bills itself as the state’s largest civil justice reform organization. “We are now shifting our focus to government reform” – proposing major changes to the jury system, as well as a vast structural overhaul of the Texas judiciary. But trial lawyer and consumer advocacy organizations say not so fast. Although they don’t intend some full-scale assault on the medical malpractice limits imposed by H.B. 4 in the 2003 session, the Texas Trial Lawyers Association (TTLA) and Texas Watch, a consumer advocacy organization, say they will chip away at the inadequacies of the legislation. “We would like to tie the cap on non-economic damages [generally $250,000] to the inflationary index so it grows with the cost of living,” says Alex Winslow, executive director of Texas Watch. “California enacted the same $250,000 cap in 1976, and now in real dollars, it’s only worth about $65,000. We want to make sure the cap keeps up with the cost of living.” Winslow and the TTLA also are seeking legislation that would deny the protection of the cap to serial offenders of malpractice. And TTLA wants the “willful” standard of fault that governs malpractice cases that arise in emergency room settings to return to simple negligence. “It is virtually impossible to prove that a health care provider was willful and wanton in causing someone to get hurt,” says Jay Harvey, TTLA president and a partner in Austin’s Winckler & Harvey. “That creates a criminal standard and virtual immunity for the provider. That’s why no cases are being filed.” “We think the caps are working as they should,” says Trabulsi. “How do you adjust for cost of living on something like pain and suffering? I don’t get that concept.” He says TLR plans to defend the caps, if necessary, but anticipates the only genuine tort reform matter proposed by TLR will be a change to the Texas venue statute involving cases arising under the federal Jones Act, which allows plaintiffs to file such cases in state or federal court. “There are a couple of law firms that are filing maritime cases against dredging companies along the Gulf Coast and there is a state venue exception that allows these cases [also] to be filed in the county where the plaintiff resides,” says Trabulsi. “There is no rational reason why the venue in these cases shouldn’t be the same as it is in every other [personal-injury] case” – just in the county where the injury occurred or the county of defendant’s principal place of business. TTLA’s Harvey believes there is a rational reason. “The cause of action in these cases generally accrues in someplace like the Gulf of Mexico or the China Sea where there is no courthouse,” he says. “This change would limit the plaintiff to a venue only in the defendant’s backyard.” Trabulsi seems more interested in highlighting TLR’s grander designs for jury reform, which will be more intricately detailed within the next month when TLR releases its research paper on the subject. But rather than lobbying the Legislature to enact the most controversial aspects of its new proposal – limiting the length and content of voir dire, selecting those eligible for jury service from the rolls of registered voters rather than the drivers’ license database – TLR plans on making its case to the Texas Supreme Court through the high court’s rule-making authority. Specifically, TLR wants a ban on the kinds of jury profile questions – What kind of magazines do you read? Which political party do you belong to? – that enable lawyers to evaluate which juror would be more sympathetic to their side of a case. Such questions “don’t advance the ball in trying to choose an impartial jury,” says Trabulsi. TTLA would vigorously oppose any move to limit voir dire through whatever channel. “It takes a good deal of questioning for both sides to find out the biases of jurors,” says TTLA’s Harvey. “Any practitioner learns so much more from a complete voir dire in the state system than say a limited voir dire in the federal system.” For this legislative session, TLR only anticipates proposing a few “quick fixes” from its jury reform agenda: requiring those who are excused from jury service to be immediately rescheduled for another service day so they don’t get lost in the system; and limiting the jury service exemption for legislators and their staff to times when the Legislature is actually in session. But two proposals TLR has planned for Texas Supreme Court consideration – allowing jurors during trial to take notes and to ask questions – are already being considered, independent of TLR. State Sen. Jeff Wentworth, R-San Antonio, chairman of the Senate Jurisprudence Committee, says he is formulating legislation that will address these and other issues. “Rather than leave it to the discretion of the judge, we want to require that the judge provides note-taking material [pens and pads],” says Wentworth. “We also want the jury to be able to submit questions to the judge. . . . We don’t need jurors sitting there in the dark because some lawyer thought he had made himself clear.” The questions would be subject to objections over their admissibility, which would be made outside the jury’s presence, adds Wentworth. “Neither side would be blamed if a question wasn’t allowed. The judge takes it on the chin by explaining it was a matter of law.” Wentworth also intends to introduce legislation that would allow jurors to be “pre-instructed” as to the substantive law of the case so “they can evaluate the evidence better as the trial progresses,” he says. To better inform jurors, Wentworth also wants to require judges to provide written copies of the court’s charge to jurors so they can consider it during deliberations. Wentworth says he will give a fair hearing to any bill filed with his committee, but he does not favor restricting voir dire or changing the methods of selecting the jury pool, if TLR decides to take a run at the Legislature after all. “I have heard no complaints from anyone that voir dire is not working,” he says. “I am opposed to going back to the old way of selecting jurors through voter registration roles because it provides an additional disincentive to voting.” If the Legislature, or for that matter the Texas Supreme Court, finds TLR’s plans for jury reform overly ambitious, just wait until lawmakers get a glimpse of TLR’s proposal to restructure the entire Texas civil court system.

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