thl_january/february_2013

lawyerVolume 50 – Number 4 January/February 2013

inside...The HBA/TCH Medical-Legal Partnership

Healthcare Reform, the Supreme Court, and the Election: Is it Over Yet?

Access to Health Care through the Emergency Room

Emergency Mental Health Care: How to Navigate in Harris County

Harris County Therapeutic Courts: A Holistic Approach to Justice63rd Harvest Party

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Health Care Access

News conference announcing the first HBA/TCH Medical-Legal Partnership

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The HBA/TCH Medical-Legal Partnership By Michelle G. FriedBerG

Healthcare Reform, the Supreme Court, and the Election: Is it Over Yet?By SuSan FeiGin harriS

Access to Health Care through the Emergency Room By roBert W. Painter

Emergency Mental Health Care: How to Navigate in Harris County By aMy r. ParSonS and JudGe rory r. olSen

Harris County Therapeutic Courts: A Holistic Approach to Justice By Farrah Martinez

63rd Harvest Party Raises Record $613,900 for Houston Bar Foundation

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The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: [email protected] Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2013. All rights reserved.

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36President’s MessagePartnerships Exceed Expectations By Brent Benoit

From the editorRaising Awareness of Health Care Access By Keri d. BroWn

houston lawyers Who Made a difference Hortense WardBy JudGe MarK daVidSon

coMMittee SPotliGhtHAY Center Committee Helping Youth Transition to AdulthoodBy anGela l. dixon

a Profile in Professionalism c.e. rhodes U.S. Operations and Compliance Counsel, Baker Hughes Incorporated. President, Texas Young Lawyers Association

off the recordBenny Agosto Jr. and Victoria Goes to CourtBy Polly GrahaM

at the BarJudicial Ceremonies

legal trends The America Invents Act By al harriSon and dereK Mueller

The Numbers Show Success of Tort Reform Goals By lynne liBerato and Kent rutter

Media reviewsBusiness and Commercial Litigation in Federal Courts, Third Editionreviewed Jill yaziji

Reading Law: The Interpretation of Legal Textreviewed by JeFFrey l. oldhaM

litigation MarketPlace

Placement Service

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On the cover: The Houston Bar Association’s Houston Volunteer Lawyers and Texas Children’s Hospital announced a new Medical-Legal Partnership at a news confer-ence on November 1, 2012. Clockwise from upper left: Brent Benoit, president of the HBA; Randy Wright, executive vice president and chief operating officer, TCH; Jeff Gearhart, executive vice president and general counsel, Walmart; news conference attendees; Lori Armstrong, chief nursing officer, TCH; and media covering the event;. Read more about the HBA/TCH Medical Legal Partnership, beginning on page 10. Photos by Paul Kuntz, Texas Children’s Hospital.


I hope all of you had a very happy and restful holiday season. The New Year is always a good time to reflect on the prior year and look forward to the year ahead. At the Bar, we are mid-way through our year. So while

we cannot look back on a full year right now, I do want to take a moment to let you know how we are doing so far. I am proud to report success on several of the goals we set for the association. In some cases, we have been able to far exceed my expectations.

One of my goals for the bar year was to im-prove access to health care by assisting with legal barriers for low-income families. Hous-ton’s Medical Center provides world class medical care to people facing a wide array of health issues. We are also a city that boasts a growing and talented legal com-munity with the fifth largest metropoli-tan volunteer bar in the country. Hous-ton Volunteer Lawyers, a project of the Houston Bar Association, has harnessed the talent of this legal community to pro-vide free legal assistance to thousands of individuals and families in need. Yet, we have families that are lost between these two communities: in need of health care,

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By Brent BenoitLocke Lord LLP

but blocked by legal problems that they cannot navigate because they are unable to afford an attorney.

On November 1, 2012, I was privi-leged to take part in a news conference to announce an important and inno-vative effort to assist families at Texas Children’s Hospital. Through a generous grant from Walmart, we are partnering with Texas Children’s Hospital in the area’s first medical-legal partnership of its kind, providing an attorney on-site

through our Houston Volunteer Lawyers and utilizing the volunteer efforts of several Hous-ton law firms.

Through this part-nership we will work to help a particularly vulnerable population. The illness of a child is a particularly stressful

and trying time for a family. This bur-den should not be compounded by the difficulty of facing legal problems with no ability to obtain assistance. This pro-gram will work to alleviate this unneces-sary strain for families in need. Whether it is helping a family obtain the benefits it needs to care for a child, working to make sure a child returns to a home free of life threatening conditions like mold, or any of a host of legal issues related to

health care, TCH and Houston Volunteer Lawyers stand ready to help those that cannot help themselves.

Every day families are touched, cared for, and even saved by the hard work and dedication of the staff of this amazing and ground-breaking hospital. Without TCH’s commitment to care for children and their families in a comprehensive way that extends beyond the bedside, a partnership like this would not work. On behalf of the HBA I want to say a heart-felt thank you to TCH and to Wal-Mart for inviting our lawyers to be a part of this worthy effort.

You can read more about this partner-ship in an article authored by Michelle Freidberg, the attorney for that medical-legal partnership, in this issue of The Houston Lawyer.

Another goal was to raise awareness among our members and the public about human trafficking. We take pride in so many of Houston’s unique achieve-ments, but shameful statistics also point to Houston’s position as a hub for human trafficking and forced labor. Through the hard work of some of our committees and members, we have presented several programs to explore the issues behind human trafficking and to educate our members on the legal issues involved.

In October 2012 we presented a free seminar for HBA members on human

Partnerships Exceed Expectations

“One of my goals

for the bar year

was to improve access

to health care by

assisting with legal

barriers for low-income

families.”


trafficking, featuring as speakers Edward Gallagher and Ruben Perez of the U.S. Attorney’s Office. They discussed the unique problems faced by the law en-forcement community and non-govern-mental organizations in addressing the problem. The September-October issue of The Houston Lawyer focused on hu-man trafficking, with an excellent series of articles by attorneys, advocates and law enforcement representatives, exam-ining many aspects of the problem and how the community is addressing solu-tions.

On January 31, we joined the Texas Young Lawyers Association and its presi-dent, Houstonian C.E. Rhodes, in spon-soring the debut of a new video produced by TYLA, “Slavery Out of the Shadows: Spotlight on Human Trafficking,” which will educate members of the legal profes-sion on the problem and what they can do about it. On February 2, our Law & the Media Committee sponsored a pan-el discussion, “Confronting the Human Trafficking Epidemic,” which examined the issue from the perspectives of attor-neys working as advocates, law schools sponsoring clinical programs, reporters covering related news stories, and law enforcement officials combatting the problem. A particularly moving part of that panel was the appearance of “Ma-ria,” a woman who told her personal story as a human trafficking victim and survivor.

We have had other successes that I will hopefully get a chance to talk more about later, including raising enough money for tens of thousands of meals for hungry Houstonians and planting 1000 trees at the Houston Arboretum. When we issue a challenge to our members, they rarely fail to meet that challenge. When I took office as HBA president in May, I was very excited about the things we had planned for our association in the coming year. I would like to thank you for helping us meet and exceed many of those goals in the first half of this year. I can hardly wait to see what the second half brings.

Defending Texans Since 1994Former Assistant United States AttorneyFormer Assistant District AttorneyFounding Member of the National College of DUI Defenseof Counsel Williams Kherkher LLP

Law Office of Ned BarnettGulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com

Board Certified in Criminal Law by the Texas Board of Legal Specialization

thehoustonlawyer.com January/February 2013 7

This issue is the fourth of six that will be published this bar year, but by no means is The Houston Lawyer slowing down. The focus of this special issue is health care ac-cess. Then, our March/April issue covers the intriguing topic of “a futurist’s view

of the legal profession” and we have an interesting line-up of articles for that issue. We conclude the bar year with our annual volunteerism issue in May/June. Our guest editors for that issue have taken our typical “volunteerism issue” formula and tweaked it ever-so-slightly to give our readers a fresh perspective on the good work of the members of our bar. It has been an interesting ride at the helm of this magazine and all of our Editorial Board members look forward to finish-ing the year strong.

One aspect of health care access that received a lot of attention in 2012 was that of mental health care. From James Holmes’ mass murder in Colorado in July, to Jared Loughner’s November plea deal and sentenc-ing in Arizona for the mass murder and attempted assassination of Congresswoman Gabrielle Giffords, and finally to Adam Lanza’s December mass murder-suicide in Connecticut, mental health care and missed clues were the subject of much debate. Admittedly, the other debate—gun control—has taken the lion’s share of the discussion at the expense of mental health care. But it is generally understood that Holmes, Loughner, and Lanza each had mental health issues at the time each committed his crime.

There rarely is just one root cause for atrocities of this magnitude in which 45 people lost their lives at the hands of one of these three men. But we can ed-ucate ourselves and others about the resources that are available – not simply for mental health care, but for health care as a whole. A mentally and physically healthy population surely is preferable to the alterna-tive. The articles in this issue address a variety of top-

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By Keri D. BrownBaker Botts L.L.P.

aSSociateeditorS

Julie BarryAttorney at Law

Jill YazijiYaziji Law Firm

ics to help provide information and resources ranging from a national level down to what’s happening in Harris County today.

In this issue, Michelle Friedberg discusses Hous-ton’s first ever medical-legal partnership, which sees the HBA’s Houston Volunteer Lawyers partner with Texas Children’s Hospital to provide legal advice and representation to patients and parents. Following the format of other medical-legal partnerships around the country, the hope is that the partnership with Texas Children’s Hospital will be the first of several.

Turning back to mental health care for a moment, Harris County Probate Court No. 3 staff attorney Amy Parsons and Judge Rory Olsen provide a roadmap to navigate the process of obtaining emergency mental health care in Harris County. Editorial Board member Farrah Martinez writes about the Harris County thera-peutic courts that address mental health and addic-tion. These courts include the Star Drug Court (on the criminal court side), the Star Drug Court Family In-tervention Court (a family drug court), Veterans Court (another criminal court initiative), and the Felony Mental Health Court (also on the criminal court side).

Shifting the focus outside of the court system and into the national perspective, Articles Editor Robert Painter explains the process of and requirements to receive access to health care via the emergency room and the Emergency Medical Treatment and Active Labor Act. Finally, Susan Feigin Harris takes a closer look at the impact of the Patient Protection and Af-fordable Care Act and the 2012 presidential election and the resulting impact on healthcare delivery.

Our guest editors for this issue were new board member Chance McMillan and longtime member Judy Ney. As always, our thanks go to them for their hard work in managing the various components that come together to bring this issue into your hands.

Raising Awareness of Health Care Access

Angela L. DixonAttorney at Law

Don Rogers Harris County District Attorney’s Office

Robert W. Painter Painter Law Firm PLLC


BOARD OF DIRECTORS

DIRECTORS (2011-2013) Hon. David O. Fraga Jennifer Hasley Neil D. Kelly Daniella D. Landers

DIRECTORS (2012-2014) Alistair B. Dawson Warren W. Harris Brent C. Perry John K. Spiller

EDITORIAl STAFFeditor in chief

Keri D. Brown

associate editors

Julie Barry Angela L. Dixon Robert W. Painter Don Rogers Jill Yaziji

editorial Board

Erika Anderson Sharon D. Cammack Suzanne Chauvin Melissa Davis Jonathan C.C. Day Sammy Ford IV Polly Graham John S. Gray Stephanie Harp Al Harrison Hon. Dan Hinde Farrah Martinez Chance McMillan Judy L. Ney Jeff Oldham Hon. Josefina Rendon Tamara Stiner Toomer

Managing editor

Tara Shockley

HBA OFFICE STAFF

ADvERTISIng SAlESDESIgn & pRODuCTIOn

QuantuM/Sur12818 Willow Centre, Ste. B, Houston, TX 77066

281.955.2449 • www.quantumsur.com

PublisherLeonel E. Mejía

Production ManagerMarta M. Mejía

advertisingMary Chavoustie

executive directorKay Sim

administrative assistantAshley G. Steininger

administrative assistantBonnie Simmons

receptionist/resource SecretaryLucia Valdez

director of educationLucy Fisher Cain

continuing legal education assistantAmelia Burt

communications directorTara Shockley

Membership and technology Services director Ron Riojas

Membership assistant Ariana Ochoa

committees & events director Claire Nelson

committee & events assistantRocio Rubio

communications/ Web designerBrooke Benefield

PresidentBrent Benoit

President-electDavid A. Chaumette

First Vice PresidentBenny Agosto, Jr.

Second Vice PresidentTodd M. Frankfort

Secretary Laura Gibson

treasurer M. Carter Crow Past PresidentDenise Scofield


The HBA/TCH Medical-Legal PartnershipThe HBA’s Houston Volunteer Lawyers and Texas Children’s Hospital

Join Forces to Help Low Income Families Overcome Legal Issues that Affect Patient Health

Randy Wright, executive vice presi-

dent, chief operating officer, Texas

Children’s Hospital

Brent Benoit, president of the Houston Bar AssociationJeff Gearhart, executive vice presi-dent and general counsel, Walmart

Photos by Paul Kuntz, Texas Children’s Hospital

enced by the “conditions in which peo-ple are born, grow, live, work and age.”2 These conditions, referred to as “social determinants of health,” are shaped by our physical and social environments, and they are largely responsible for the

health inequities we see in vulnerable populations.

Health costs and outcomes are deeply connected to the social determinants of

health. To improve them, then, the pro-vision of quality health care means ad-dressing a patient’s social needs. Many of these social needs3 are in fact, legal needs — “an adverse social condition with a legal remedy.”4 While the impact of social determinants is often recog-nized by health care providers, address-ing those needs remains a challenge, particularly for low-income patient fam-

ilies. Lawyers can play a special role in supporting the health of our communi-ties, and they can help alleviate and re-move the social determinants of health that lead to and exacerbate poor health.

The right to free counsel in the United States is, minus a few exceptions, limited to criminal cases that make up a small percentage of the legal problems indi-viduals and families actually face. There are some free legal services available for low-income people with civil legal prob-lems, but the need far outweighs the supply. In the general population, there is approximately one private lawyer for every 429 people; there is one legal aid lawyer for every 6,415 people living in poverty.5 Pro bono and reduced-fee pro-grams for low-income individuals and families are, thus, a critical component of the civil legal assistance system. The medical-legal partnership model con-tributes to this network by uniting local legal service providers with local health-care institutions to coordinate care, de-tect legal problems early, and leverage scarce resources on behalf of specific, underserved patient populations.

Unfettered access to health care will not cure intractable health issues aris-ing from the social determinants of health, because not every illness has a biological cure. Lawyers can be-come key partners of the health care team by addressing these legal issues, and they can train health care provid-ers to be mindful of the social deter-minants of health and the legal issues preventing them from achieving healthy outcomes.

For example, while there are wide-spread government programs and poli-cies designed to meet social and materi-al needs, complex application processes and inconsistent implementation both pose a barrier to families’ access to these programs. Often, qualified and deserv-ing patients are denied benefits to which they are entitled, and they need legal as-sistance with the appeals process to se-cure access to food, disability benefits, an appropriate special education plan,

By Michelle G. FriedBerG

Houston is home to a world-renowned medical center with the largest medi-cal complex in the world. Individuals

travel from near and far to receive first-class medical treatment in our city; even so, research shows that Houstonians continue to suffer preventable health conditions and face barriers to health care access.

To meet this challenge, the Houston Bar Association’s Houston Volunteer Lawyers has partnered with Houston’s premiere children’s hospital, Texas Children’s, to cre-ate the first medical-legal partner-ship in Houston. This new program brings together lawyers, doctors and so-cial workers to improve health outcomes for low-income families by addressing socioeconomic and environmental fac-tors that affect patient health. The Texas Children’s Medical-Legal Partnership (MLP) provides free legal advice and representation to Texas Children’s patients and their families with help from pro bono attorneys and will train health care providers at the Hospital to iden-tify and triage legal issues affecting their patients’ health.

The MLP is the product of a rec-ognized trend in the United States that patient health is affected by far more than just traditional medi-cine. Poverty is one of the most im-pactful. The percentage of children living below the federal poverty level is higher in Houston than the national average.1 Poverty has devastating ef-fects on all stages of development, and it can lead to food insecurity, inadequate health care, inferior housing conditions and poor school and employment out-comes, eventually leaving lasting con-sequences on overall health. Research consistently shows that health is influ-

Lance Lightfoot, general counsel, Texas Children’s Hospital; HBA president, Brent Benoit; Alissa Ru-bin Gomez, executive director of the HBA’s Houston Volunteer Lawyers

Members of the boards of directors of the Houston Bar Foundation and Houston Volunteer Lawyers at the news conference. From left: Michelle Fried-berg, John Strasburger, Thomas M. Roche, Alissa Rubin Gomez, Bill Buck, Susan Sanchez, Norma Trusch, Barrett Reasoner, Brent Benoit, Stewart Gagnon, Bob McAughan, and Neil Kelly.


Children’s Hospital. Houston Volunteer Lawyers delivers free legal services to qualified applicants by linking them with attorneys who volunteer their time on a pro bono basis. To date, Houston Volunteer Lawyers has six Houston law firms that have committed to be “go to” pro bono firms in this endeavor: Akin Gump, Baker Hostetler, Bracewell & Gi-uliani, Fulbright & Jaworski, King & Spalding, and Vinson & Elkins.

The Texas Children’s MLP launched on November 1, 2012, and it already has been handling consultations and re-ferring cases to pro bono attorneys on a variety of legal issues. These include guardianships as pediatric patients transition into adulthood, adoption, questions related to custody and pater-nity, issues regarding habitability and living conditions, and special education cases ranging from initial evaluation and testing to adherence to an individu-alized education plan to accommoda-tions for children with functional limi-tations and increased challenges in their

educational settings.The Texas Children’s MLP is an ef-

fective allocation of scarce resources and a true opportunity to help improve a child’s quality of life. To become in-volved, contact Michelle Friedberg at [email protected] or 832- 826-7202. Michelle G. Friedberg, MPH, JD is sthe staff attorney for the Texas Children’s Hos-pital Medical-Legal Partnership.

endnotes1. Children at Risk, Growing Up In Houston:

Assessing the Quality of Life of our Children, 20 (Robert Sanborn, Mandi Sheridan Kimball, Dawn Lew, Jennifer Michel Solak, Diana Zarzuelo, eds., 2010), available at http://childrenatrisk.org/research/book/.

2. World Health Organization, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (2008), available at http://www.who.int/social_determinants/thecommission/finalreport/en/index.html.

3. Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership, 30. (Elizabeth Tobin Tyler, Ellen Lawton, Kathleen Conroy, Megan Sandel, Barry Zuckerman, eds., 2011).

4. Id. at 72.5. Id. at 57.

or accommodations at school. Lawyers can also intervene to address

other legal needs affecting overall health and wellness, including improving housing/living conditions, obtaining guardianships for unrelated caregivers without the right to consent to medical care, and securing modifications to ac-commodate children with physical dis-abilities.

The Texas Children’s MLP is the first program of its kind in Houston, thanks to a generous donation from Walmart, which created a successful MLP with Arkansas Children’s Hospital last year and plans to expand the benefits of MLPs to other major pediatric hospitals nationwide. The partnership at Texas Children’s Hospital is working with so-cial workers in five clinics within the Hospital: Special Needs Primary Care Clinic, In-Patient Rehabilitation, Retro Virology, Fetal Center, and Texas Chil-dren’s Pediatrics (Gulfgate). The vision of the MLP is to eventually expand the program to cover all units of Texas


Join the houston Bar association’s 100 club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal

profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA.

Firms of 5-24 attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & FriendAdair & Myers PLLC Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Ajamie LLP Andrews Myers, P.C.Bair Hilty, P.C.Baker Williams Matthiesen LLP The Bale Law Firm, PLLCBarrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & HouseBlank Rome LLPBrewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P.Campbell Harrison & Dagley LLP Campbell & Riggs, P.C.Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLPEdison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLCFaubus & Scarborough LLPFernelius Alvarez PLLCFibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLPFisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C.Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PCFunderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLCGodwin Lewis, P.C. Goldstein & Lipski, PLLC Gordon & Rees LLPGreer, Herz & Adams, L.L.P.Hagans Burdine Montgomery & Rustay, P.C.Harris, Hilburn & Sherer

Harrison, Bettis, Staff, McFarland & Weems, L.L.P.Hartline Dacus Barger Dreyer LLPHays McConn Rice & Pickering, P.C. Hicks Thomas LLP Hirsch & Westheimer, P.C. Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PCJackson Lewis LLPJenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P.Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L. L. P.Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C.Kroger | BurrusLeBlanc Bland P.L.L.C.Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLPMcGinnis Lochridge & Kilgore LLPMcGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PCMiller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C.Murray | Lobb PLLCNathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C.Pagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PCPillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PCReynolds, Frizzell, Black, Doyle, Allen & Oldham L.L.P.Roach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C.Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C.Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLPSchwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C.

Shepherd, Scott, Clawater & Houston, L.L.P.Shipley Snell Montgomery LLP Short Carter Morris, LLPSingleton Cooksey LLP Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P.Sprott, Rigby, Newsom, Robbins & Lunceford, P.C.Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P.Stuart & Associates P.C.Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P.Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C.Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P.Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P.Yetter Coleman LLP Ytterberg Deery Knull LLPZimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P. Firms of 25-49 attorneys Adams & Reese LLPAkin Gump Strauss Hauer & Feld LLPBaker & McKenzie LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P.Chamberlain Hrdlicka White Williams & Aughtry Coats I RoseCokinos Bosien & YoungGibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLPJones Day Littler Mendelson, PCOlson & Olson LLPSeyfarth Shaw LLP Firms of 50-100 attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P.Morgan, Lewis & Bockius LLP

Porter Hedges LLP Thompson & Knight LLP Winstead PC

Firms of 100+ attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord LLPVinson & Elkins LLP

corporate legal departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell IndustriesMAXXAM IncNewfield Exploration CompanyPetrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System

law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations OfficeMetropolitan Transit Authority of Harris County TexasPort of Houston Authority of Harris County Texas

By SuSan FeiGin harriS

Following the 2012 election, it might appear that the fate of the Patient Protection and Af-fordable Care Act (the “Afford-able Care Act” or the “Act”) has

been cemented into the history books and, in fact, there are efforts to move forward with its implementation. However, the Af-fordable Care Act is a comprehensive piece of legislation that has a far reach and the implementation of its various provisions is far from complete or assured. This ar-ticle provides an overview of certain com-ponents of the law, the importance of the Supreme Court decision,1 and how the outcome of the election will likely impact healthcare delivery in the years to come.

Important Issues Relevant to Implementation of the Affordable Care ActThe Affordable Care Act (Pub. L. 111-148) and the Health Care and Education Rec-onciliation Act of 2010 (signed into law by President Obama on March 30, 2010) together represent the signature legislative initiative of the first Obama term. While Democrats and Republicans often differ dramatically on their approaches, both sides acknowledge the consequences of escalating healthcare costs and the rise in the number of uninsured Americans. Additionally, both Democrats and Repub-licans now recognize that the ongoing fis-cal cliff issues and the deficit will continue to drive healthcare governmental program changes in the years to come. Both parties acknowledge that entitlement reform is a means to control spending; this author thinks that a framework for entitlement reform will be established as the 113th Congress turns its attention to solving our country’s fiscal woes. The impact of rising healthcare costs and the Affordable Care Act’s provisions and innovations to drive healthcare costs down will continue to be in the spotlight.

The Affordable Care Act is comprehen-sive; it deals with issues including (but certainly not limited to) insurance mar-

Healthcare Reform,

the Supreme Court, and

the Election: Is it Over Yet?

from establishing lifetime or unrea-sonable limits on benefits;

• Rescissions of health insurance poli-cies were immediately prohibited;

• All plans were required to cover pre-ventive services, immunizations, certain child preventive services rec-ommended by the Health Resources Service Administration and certain preventive services for women, with-out any cost sharing;

• Dependent coverage was extended up to age 26;

• Insurance company administrative expenses were capped and a mini-mum medical loss ratio was pre-scribed; and

• Plans offering coverage for emergen-cy medical services were required to cover emergency services without preauthorization or network par-ticipation, regardless of the terms of coverage and in the same manner as in-network emergency services are covered under the plan.

Other insurance reforms required by 2014 include guaranteed issue and renew-al and bans on the imposition of any wait-ing periods of more than 90 days for in-surance coverage. Additionally, beginning in 2014, an individual’s participation in a clinical trial may not be denied. Routine patient costs in connection with the clini-cal trial are also covered.

Ways in which we deliver care already have been significantly impacted by the Affordable Care Act. The Act created the Center for Medicare & Medicaid In-novation (CMMI) within the Centers for Medicare & Medicaid Services for test-ing and expanding new payment models that significantly change the way in which hospitals and physicians get paid, tying payment to quality outcomes and making providers accountable for coordinating the care of patients across a larger spec-trum of the healthcare delivery system.

CMMI has been active in operationaliz-ing the reforms of the Affordable Care Act, accepting grant applications from private healthcare providers and states to create regional delivery networks for individuals

with chronic illness, innovative approach-es to improvements in quality, and new payment options for healthcare providers that align incentives away from volume-based payment towards rewarding quality and efficiency in care delivery.

To ameliorate an anticipated shortfall of some 40,000 family practitioners pre-dicted by the American Academy of Fam-ily Physicians to occur in 2020, the new law contains millions of dollars directed toward attracting more physicians to the field through reallocating graduate medi-cal education reimbursement and increas-ing payments to primary care physicians. It also directs the Secretary of Health and Human Services to award grants to teach-ing health centers for establishing new ac-credited primary care residency programs or expanding current programs.

The Act also expands the reach of the Medicaid program, which now covers childless adults. While many children and pregnant women currently receive access to care under Medicaid, most childless adults are not covered under state Medic-aid laws. The Act now requires states to cover all U.S. citizens and legal residents earning up to 133 percent of the federal poverty level beginning in 2014. States re-ceive considerable assistance for expand-ing Medicaid, including a 100 percent matching rate for all newly eligible Med-icaid individuals from 2014-2016. This assistance is scaled back to 95 percent in 2017, 94 percent for 2018, 93 percent for 2019 and 90 percent for 2020 and there-after.

The Affordable Care Act also provides for higher reimbursement rates for phy-sicians who provide services to Medicaid beneficiaries. For primary care physicians, including family medicine, general inter-nal medicine, and pediatrics, the Afford-able Care Act requires that Medicaid re-imbursement be 100 percent of Medicare payment rates for 2013 and 2014. States will receive 100 percent of the federal fi-nancing required to support the increased reimbursement rates. However, because of laws unrelated to the Affordable Care Act, some fear that physician reimbursements

ket reform, healthcare delivery system reform, Medicaid expansion, incentives to improve access to primary care, fraud and abuse prevention, changes for tax exempt hospitals, restrictions on physi-cian investment in entities to which they refer patients (commonly referred to as “Stark Law” changes), and various taxes on device manufacturers and changes for pharmaceutical companies. Notably, the Act establishes multiple demonstration programs in Medicare and Medicaid, in-cluding a five-year state demonstration program to evaluate alternatives to medi-cal tort litigation, closing the Medicare prescription drug “donut hole,” and re-structuring payment for Medicare Advan-tage plans.

In addition to changes to the health care system itself, the law seeks to improve coverage for the significant number of un-insured Americans. As a result, the Act in-cludes the “individual mandate,” employer mandates, and a Medicaid expansion, in an attempt to ensure that every person has access to some type of insurance coverage. The Act also seeks to provide access to affordable insurance by establishing new marketplaces for purchasing insurance, called “Exchanges.” These were contem-plated to be implemented in each state, but the reality at present is that the fed-eral government may be creating a federal Exchange and implementing it for a fairly large number of states, including Texas, whose governors decline to participate. Tax credits, subsidies and other incentives will be provided for certain employers and low-income individuals to help purchase insurance from the Exchange, all of which should be ready for implementation in 2014. This aspect of the Act will require close scrutiny and some of its provisions may be scaled back to accommodate the reality of the fiscal cliff discussions.

While many legislative policies do not come into effect under the Act until 2014, the following immediate changes were implemented within six months of enact-ment:

• Group health plans and insurance issuers were immediately prohibited


the Court upheld the individual mandate, few have recognized the impact of some of the nuances in the dicta, or that the deci-sion has dramatically changed Medicaid expansion, which is a key component of the Act’s promise of covering a significant number of uninsured Americans.

The decision, issued June 28, 2012, did not disappoint in terms of complexity, as a deeply divided Court considered several issues involving the Affordable Care Act: (1) whether the Supreme Court was first barred from even considering the case at all under an arcane tax provision of the Anti-Injunction Act that would prevent an issue from being considered until a tax is actually imposed; (2) whether the individual mandate that requires indi-viduals to purchase a health insurance policy overstepped federal authority un-der the Constitutional provisions of the Commerce Clause or the Necessary and Proper Clause; (3) whether the individual mandate was severable from the rest of the Affordable Care Act; and (4) whether

will actually be cut. The 112th Congress grappled with the Budget Control Act, which contained an automatic two per-cent across the board decrease in spend-ing. Additionally, the Balanced Budget Act of 1997 includes mandatory cuts to physician reimbursement. Congress has enacted short-term freezes on this reduc-tion, the most recent of which expired in January 2013. If this is not permanently fixed or managed, physicians are slated to receive a 27 percent reduction in Medicare reimbursement.

How the implementation of the Afford-able Care Act will be impacted by and in-terwoven into the talks and compromises worked out in Congress is anybody’s guess, but the ultimate success of the Act may hinge on whether the new law can successfully “bend the cost curve” asso-ciated with improving access to coverage for an additional 32 million uninsured Americans. To that end, the Act contains a number of provisions directed at initi-ating healthcare delivery system and pay-

ment reforms. The Congressional Budget Office (CBO) originally estimated that the Act would cover 32 million uninsured and reduce the federal deficit by $143 bil-lion between 2010 and 2019 at a net cost of $938 billion over ten years. Following the release of the Supreme Court opinion, the CBO released a new report, estimating that six million fewer people would have coverage than estimated, which brought the 11 year cost of the Act down to $1.168 trillion, or $84 billion less than originally estimated. CBO also estimated that repeal of the Act would add $109 billion to the federal deficit over the next decade.

Impact of the Supreme Court’s Decision on the Implementation of the Affordable Care ActThe Supreme Court decision in the case considering the constitutionality of as-pects of the Affordable Care Act, National Federation of Independent Business v. Sebe-lius, further complicates the landscape.2 While many have focused on the fact that


Kagan, Breyer, Ginsburg and Sotomayor made up the requisite majority agreeing that the appropriate remedy was to sever the offending provision to allow the Med-icaid Expansion to continue unabated.

Chief Justice Roberts wrote in his ma-jority opinion, “In this case, the ‘financial inducement’ Congress has chosen is much more than ‘relatively mild encourage-ment’- it’s a gun to the head.” The Chief Justice focused on the fact that the Medic-aid program, as enacted, covered discrete categories of individuals: pregnant wom-en, children, needy families, the blind, the elderly and the disabled. He then looked at the population covered by the expan-sion, mostly childless adults, and ratio-nalized the expansion as a separate and distinct Medicaid program, layered on top of the original Medicaid program, find-ing elements of the language in the ACA to support his premise. Moreover, the Chief Justice argued, legitimacy under the Spending Clause depends upon whether states “voluntarily and knowingly accept” the terms of programs such as Medicaid.

a penalty that would withdraw all fed-eral Medicaid funds for failure to comply with the expansion coerced states to ex-pand Medicaid in violation of the Spend-ing Clause of the Constitution. The Court came to a majority consensus on each of these questions, though in order to dis-cern it, the reader must parse through all of the majority, concurring, and dissent-ing opinions

The Court quickly dispensed with the Anti-Injunction Act question and by a ma-jority vote of 5-4, upheld the individual mandate as an appropriate use of the Con-gress’ taxing power. However, Chief Jus-tice Roberts first found that the individual mandate was an unconstitutional use of Congress’ power under the Commerce and the Necessary and Proper Clauses, providing important dicta on the limits of the Commerce Clause for future courts.

Justices Ginsburg and Sotomayor sided with the majority opinion on the consti-tutionality of the individual mandate, but disagreed with the Chief Justice’s ratio-nale as set forth in his majority opinion.

Justices Ginsburg and Sotomayor found that the individual mandate was a con-stitutional use of Congress’ power under the Commerce and Necessary and Proper Clauses.

With respect to the Medicaid expan-sion, Chief Justice Roberts and Justices Kagan and Breyer found that the Medicaid expansion itself was constitutional, but that the coercive enforcement mechanism of withholding all Medicaid dollars from states refusing to follow the rules was not constitutional. Justices Thomas, Scalia, Alito and Kennedy found the entire Med-icaid expansion, including the coercive enforcement mechanism, unconstitution-al. Thus, seven justices found elements of the Medicaid expansion unconstitutional as a use of Congress’ spending power. Jus-tice Ginsburg’s opinion made clear that while she agreed with the end result—upholding the Medicaid expansion—and also agreed with the remedy of severing the penalty, she firmly disagreed that the penalty, as drafted, was unconstitutional. Thus, Chief Justices Roberts and Justices


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Thus, Roberts agreed with the states’ argu-ment that withholding existing Medicaid funding as a mechanism to obtain coop-eration in the expansion “serves no pur-pose other than to force unwilling States to sign up for the dramatic expansion in health care coverage affected by the Act.”

Justice Ginsburg pointed out in her opinion that the federal government would be providing 100 percent of the funding initially, transitioning over time to no lower than 90 percent. Justice Gins-burg argued that the real financial impact to the states was minimal and could not, therefore, be considered unduly coercive. Justice Ginsburg also pointed out that this was not the first time populations had been expanded under the Medicaid program, in her attempt to undermine the two-program theory advanced by the Chief Justice. Justice Ginsburg reminded the Chief Justice that this case is the first time that the Court has found an exercise of Congress’s Spending Power unconstitu-tionally coercive.

Chief Justice Roberts, however, coun-

tered Justice Ginsburg in a lengthy and important footnote: “[T]he size of the new financial burden imposed on a State is ir-relevant in analyzing whether the State has been coerced into accepting the bur-den. ‘Your money or your life’ is a coercive proposition, whether you have a single dollar in your pocket or $500.” Chief Jus-tice Roberts then wrote what will long be held up as the most confounding language for those attempting to discern the mean-ing of future amendments to the Medicaid

law: “We have no need to fix a line... It is enough for today that wherever that line may be, this statute is surely beyond it.”

While Justice Ginsburg’s opinion con-curred in part, enabling both the individ-ual mandate and the Medicaid expansion to be upheld, at least in part, she asked the seminal question, as relating to the Med-icaid expansion; “When future Spending Clause challenges arrive, as they likely will in the wake of today’s decision, how will litigants and judges assess whether ‘a

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uninsured in the U.S.The Secretary of Health and Human

Services has issued a number of guidance letters to the states, providing more leni-ency in notification relating to the estab-lishing of an exchange—the deadline was most recently pushed to December 14, 2012—and in the option to expand Med-icaid programs, noting that states may opt in and later opt out of participation in the Medicaid expansion.3

Additionally, important questions have arisen regarding the hospital industry’s tacit agreement to significant reimburse-ment reductions, in anticipation of the reduction in the number of uninsured individuals. If states fail to expand their Medicaid populations and also fall be-hind in implementation of the insurance exchanges, predictions are that we will continue to have a large population of uninsured individuals. Thus, the need to help compensate hospitals for treating the uninsured and the shortfall associated with Medicaid payments will not be elim-inated, resulting in huge reimbursement shortfalls for hospitals.

Many thought, or hoped, that the Su-preme Court’s decision and the election might introduce some certainty into the health care arena. The fact is that the deci-sion has raised more questions relating to how the Medicaid program will be imple-mented in the future, how much discre-tion states have in implementation of the Act and whether future changes to the Medicaid program will be binding upon the states in the same manner that the laws have been in the past.

Susan Feigin Harris is a partner at Baker Hostetler LLP, where her practice focuses on providing comprehensive legal services to health industry clients, including hospitals, physicians and academic medical centers. She is board certified in Health Law by the Texas Board of Legal Specialization. endnotes1. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).2. Id.3. Letter from Secretary Sebelius to Republican Governors

Association, November 15, 2012, available at http://www.healthcare.gov/law/resources/letters/exchange-declaration-deadline.pdf.

State has a legitimate choice whether to accept the federal conditions in exchange for federal funds?’”

The State of Medicaid TodayAs a direct result of the Supreme Court decision, states may now “opt in” to the Medicaid expansion with little fear of any adverse consequences for failure to par-ticipate in this key component of the Af-fordable Care Act. This was not anticipat-ed and throws a wrench into the Obama

Administration’s attempt to move forward with the Act’s Medicaid expansion that was designed to cover some 16 million un-insured individuals in the United States. Since the decision was announced, several governors have openly indicated their re-fusal to participate in the Medicaid expan-sion, and a larger number have also indi-cated a reluctance to move forward with the establishment of healthcare exchang-es, the second key provision of Affordable Care Act for reducing the large numbers of


Equal Access ChampionsWhat does it take to become an “Equal Access Champion”? The firms and corporations listed below have signed 5-year commitment forms that indicate they will uphold a pledge to provide representation in a certain number of cases each year, based on the number of attorneys in

the firm or legal department. The goal is to provide pro bono representation in at least 1,500 cases through the Houston Volunteer Lawyers each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

large Firm championsAndrews Kurth LLP

Baker Botts L.L.P.

Bracewell & Giuliani LLP

Fulbright & Jaworski L.L.P.

Locke Lord LLP

Vinson & Elkins LLP

corporate championsBaker Hughes Incorporated

BP America Inc.

CenterPoint Energy, Inc.

ConocoPhillips

Exxon Mobil Corporation

LyondellBasell

Marathon Oil Company

Shell Oil Company

intermediate Firm championsGardere Wynne Sewell LLP

Haynes and Boone, L.L.P.

King & Spalding LLP

Mid-Size Firm championsAdams & Reese LLP

Akin Gump Strauss Hauer & Feld LLP

Baker & Hostetler LLP

Beirne, Maynard & Parsons, L.L.P.

Chamberlain, Hrdlicka, White,

Williams & Aughtry

Greenberg Traurig, LLP

Jackson Walker L.L.P.

Jones Day

Morgan, Lewis & Bockius LLP

Porter Hedges LLP

Strasburger & Price, L.L.P.

Susman Godfrey LLP

Weil, Gotshal & Manges LLP

Winstead PC

Small Firm championsAbraham, Watkins, Nichols, Sorrels,

Agosto & Friend

Beck I Redden LLP

Gibbs & Bruns LLP

Hays, McConn, Rice & Pickering, P.C.

Hughes Watters Askanase LLP

Johnson DeLuca Kurisky & Gould, P.C.

Kroger | Burrus

McGuireWoods LLP

Schwartz, Junell, Greenberg

& Oathout, L.L.P

Sidley Austin LLP

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Weycer, Kaplan, Pulaski & Zuber, P.C.

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Boutique Firm championsBlank Rome LLP

Coane & Associates

Connelly • Baker • Wotring LLP

Edison, McDowell & Hetherington LLP

Fullenweider Wilhite PC

Funderburk & Funderburk, L.L.P.

Hicks Thomas LLP

Jenkins & Kamin, L.L.P.

Ogden, Gibson, Broocks, Longoria

& Hall, L.L.P.

Squire Sanders LLP

Sutton McAughan Deaver LLP

Strong Pipkin Bissell & Ledyard, L.L.P.

Wilson, Cribbs & Goren, P.C.

Solo championsLaw Office of O. Elaine Archie

Peter J. Bennett

Law Office of J. Thomas Black, P.C.

Law Office of Robbie Gail Charette

Chaumette, PLLC

Law Office of Papa M. Dieye

The Ericksen Law Firm

Frye, Steidley, Oaks

& Benavidez, PLLC

Fuqua & Associates, P.C.

Terry L. Hart

Law Office of James and Stagg, PLLC

Katine & Nechman L.L.P.

The Keaton Law Firm, PLLC

Gregory S. Lindley

Law Office of Maria S. Lowry

Martin R.G. Marasigan Law Offices

The Law Office of Evangeline Mitchell, PLLC

Bertrand C. Moser

Pilgrim Law Office

Robert E. Price

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Scardino & Fazel

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Norma Levine Trusch

Access to Health Care through the Emergency

Room

I n the past, most people went to the emergency room only if there was a real medical emergency. In recent years, as access to health care has be-come increasingly challenging, more

and more people have relied on emergen-cy rooms for both emergency and non-emergency health care.

In the time period of 2000 through 2009, there was an increase of 28 mil-lion annual emergency room visits in the United States.1 According to 2009 data for emergency room encounters, signifi-cant numbers were for patients who were uninsured or recipients of government health care benefits.2

The impact of the staggering increased demand on emergency rooms is sig-nificant. Crowded emergency rooms are causing patients to experience delays in receiving care, ambulances to divert pa-tients to other hospitals, and an overall insufficient capacity to handle large num-bers of patients from a public health cri-sis or catastrophic event.3

A Houston-based study found a strong correlation between primary care-related emergency room visits with the rate of poverty and the lack of health insurance, demonstrating another factor accounting for the increase in the overall demand for emergency room care.4 More than 25 per-cent of all ambulatory (non-emergency) care visits by the uninsured are in emer-gency departments, compared to only seven percent for the privately insured and 17 percent for Medicaid enrollees.5

Regardless of insurance status, the shortage of primary care physicians and the inability to meet the demand for am-bulatory care have caused some of the ex-cess demand to shift to emergency rooms.6 These are serious and challenging issues for society that have a tremendous impact on public health and finances. In addi-tion to these considerations, though, the distinction between patient utilization of emergency rooms for primary care versus

By roBert W. Painter

physician is not physically present in the emergency room, a qualified medical per-son certifies in writing and believes that the benefits of transfer outweighs the risk after consulting with a physician.18

The law contains serious enforcement provisions to incentivize Medicare-re-ceiving hospitals to comply with EMTA-LA’s provisions. First, both hospitals and physicians who sign a certification under the EMTALA statute can be assessed civil penalties of $50,000 per violation.19 This means that hospitals and health care pro-viders must pay careful attention to the statutory requirements for stabilization. Second, there is also a private cause of ac-tion against hospitals for EMTALA viola-tions.20 A patient lawsuit under EMTALA is different from a medical malpractice claim (although sometimes they are pur-sued concurrently) in that an alleged EM-TALA violation focuses on the “patient dumping” aspect of the facts.

In summary, EMTALA has done a great deal to prevent patient dumping when bona fide emergency medical con-ditions are present. In general, if a hospi-tal accepts Medicare, a person who has no insurance or ability to pay has certain rights, including delivery of a baby if the mother is in active labor, or treatment to stabilize an emergency medical condi-tion.

EMTALA is believed to have contrib-uted to the increase in demand for emer-gency medical care, but does not address the broader issue of access to care for the uninsured, or underinsured, for primary care and non-emergency health care.

Texas Law’s Approach to Emergency MedicineProviding health care to the uninsured continues to be a challenging topic of debate in Texas. According to 2009-2010 data, there are nearly 4.9 million unin-sured people in Texas, which amounts to one-third of the population.21 Moreover, Texas ranks first of all U.S. states in the percentage of citizens lacking medical insurance.22

The noninsurance crisis has impacted

medical condition” as one with “acute symptoms of sufficient severity (includ-ing severe pain) such that the absence of immediate medical attention could rea-sonably be expected to result in: (1) plac-ing the health of the patient (or unborn child) in serious jeopardy, (2) serious impairment to bodily functions, or (3) serious dysfunction of any bodily organ or part.

When a pregnant woman presents with contractions, it is an “emergency medical condition” if there is not enough time to make a safe transfer to another hospital before delivery, and such a transfer would pose a threat to the health or safety of the woman or unborn child.12

If the emergency physician becomes actually aware of an emergency medical condition, then it triggers a duty under EMTALA to provide treatment to stabi-lize the patient.13 This provision has been interpreted to be a subjective standard of actual awareness.14 Thus, the mere pres-ence of an emergency medical condition is insufficient to support a claim under EMTALA, unless the actual physician awareness requirement is also met.15

Even after the duty to stabilize a patient is triggered by actual awareness of the emergency medical condition, EMTALA does not require the health care provid-ers to cure the patient, but instead only to stabilize the patient’s condition. Under EMTALA, “stabilize” means “to provide such medical treatment of the condition16 as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or with respect to a woman in active la-bor to deliver (including the placenta).”17

Once the patient’s emergency medical condition is stabilized, the patient may be discharged or transferred to another facility. In addition, the hospital may dis-charge the patient before he or she has been stabilized, if: (1) the patient requests the transfer, (2) a physician certifies in writing and believes that the benefits of transfer outweighs the risk, or (3) when a

true emergency care has major implica-tions in terms of access to care and the liability of health care providers.

The Emergency Medical Treatment and Active Labor ActOne of the first efforts by the U.S. gov-ernment to address access to care focused on emergency medical care. In the 1980s, an estimated 250,000 patients were re-fused emergency medical care annually because they were uninsured and lacked the ability to pay.7 The practice was dubbed “patient dumping.”8

The media regularly highlighted hor-ror stories of patient dumping. Women in active labor were turned away from hos-pitals, losing their babies by the time they arrived at other facilities. Stab wound vic-tims died while being transferred from private hospital emergency rooms to pub-lic hospitals.

When public sentiment shifted, Con-gress responded by passing the Emer-gency Medical Treatment and Active Labor Act (“EMTALA”), which Presi-dent Ronald Reagan signed into law in 1986.9 EMTALA applies to any hospital that receives Medicare funds and has an emergency department.10 When a person presents to an emergency room and there is a request for care, the hospital must conduct an appropriate medical screen-ing, within the facility’s capabilities, to determine whether an emergency medi-cal condition exists.

Although the EMTALA statute does not define what an “appropriate medical screening” must include, it does require that it must be similar to one that would be provided to any other person, regard-less of insurance status or ability to pay.11 The obvious public policy behind the law is to require hospitals to provide at least limited treatment to people who present to a hospital emergency room in active labor or with emergency medical condi-tions, regardless of their ability to pay.

The purpose of the appropriate medi-cal screening is to determine whether the patient has an emergency medical con-dition. The law defines an “emergency


emergency rooms all over Texas, and the financial impact is significant. The Texas Medical Association estimates that Texas hospitals spent around $208 mil-lion treating uninsured trauma patients in 2003.23

The Texas legislature responded to the strains on the emergency medicine sys-tem by passing tort reform protections. The 2003 Texas tort reform legislation enacted a significant new protection for providers of “bona fide emergency care services.”

The most dramatic change ushered in by the statute was the abrogation of the general negligence standard in favor of a lower standard of care for “bona fide emergency care services”: the standard of willful and wanton negligence.24 The willful and wanton negligence standard applies in hospital emergency rooms, hos-pital obstetrical units or in surgical suites immediately following evaluation in an emergency room.25 The effect of the stat-ute is to create a lower standard of care for the provision of emergency medical care.26

While the term “willful and wanton negligence” has been considered inher-ently contradictory, “it is obvious the legislature meant to exclude outrageous acts rising to the level of conscious in-difference.”27 The First Court of Appeals has interpreted willful and wanton neg-ligence to be equivalent to gross negli-gence, writing that it means an “entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the right[s] or welfare of the person or persons to be affected by it.”28

It is important to note, however, that the willful and wanton negligence stan-dard does not apply across the board in emergency room care. The distinction rests on the statutory definition of “bona fide emergency care services,” which seems to have been inspired by the lan-guage found in EMTALA.

Texas law defines “bona fide emergen-cy care services” as those “provided after the sudden onset of a medical or traumat-ic condition itself by acute symptoms of

sufficient severity, including severe pain, such that the absence of immediate medi-cal attention could reasonably be expect-ed to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunc-tion of any bodily organ.”29

To sum up the effect of EMTALA and Texas law, if a person with an emergency medical condition presents to a Texas hospital emergency room (and the hospi-tal accepts Medicare), the hospital must provide treatment to stabilize the emer-gency medical condition, but is not obli-gated to cure it. Any health care liability claim arising from the provision of that care would be subject to the standard of willful and wanton negligence, rather than the usual general negligence stan-dard.

Robert W. Painter is a trial lawyer with Painter Law Firm PLLC, where he handles medical malpractice matters for plaintiffs. He is an associate editor of The Houston Lawyer.

endnotes1. As access to health care has become increasingly challenging,

more and more people are relying on emergency rooms for emergency and non-emergency health care. In 2009, there were over 136 million visits to emergency rooms in the United States. That amounts to an increase of 28 million annual visits since 2000. See National Hospital Ambulatory Medical Care Survey: 2009 Emergency Department Summary Tables, Centers for Disease Control and Prevention (2012), http://www.cdc.gov/nchs/data/ahcd/nhamcs_emergency/2009_ed_web_tables.pdf; Centers for Disease Control and Prevention, Advance Data from Vital and Health Statistics, No. 326 (April 22, 2001), available at http://www.cdc.gov/nchs/data/ad/ad326.pdf.

2. Out of 136.1 million patient encounters, 21.1 million patients had no insurance, 39.9 million were covered by Medicaid or the Children’s Health Insurance Program and 23.1 million were covered by Medicare. See Centers for Disease Control and Prevention, Advance Data from Vital and Health Statistics, No. 326 (April 22, 2001), Table 6, available at http://www.cdc.gov/nchs/data/ad/ad326.pdf.

3. U.S. General Accounting Office, Hospital Emergency Departments Crowded Conditions Vary Among Hospitals and Communities, GAO-03-460 (2003), available at http://www.gao.gov/new.items/d03460.pdf.

4. Begley CE, Vojvodic RW, Seo M, Burau K, Emergency Room Use and Access to Primary Care: Evidence from Houston, Texas, 17 J. HEALTH CARE POOR UNDERSERVED 610 (2006), abstract available at http://www.ncbi.nlm.nih.gov/pubmed/16960325.

5. Peter Cunningham, Nonurgent Use of Hospital Emergency Departments, Statement Before the U.S. Senate Health, Education, Labor and Pensions Committee, Subcommittee on Primary Health and Aging, May 11, 2011, available at http://hschange.org/

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CONTENT/1204/1204.pdf.6. Peter Cunningham and Jessica May, Insured Americans Drive Surge in Emergency

Department Visits, Issue Brief No. 70, Center for Studying Health System Change, Washington, DC (October 2003), available at http://www.hschange.com/CONTENT/613/.

7. Andrew J. McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 WAKE FOREST L. REV., 173, 173-237 (1989), citing Ansell & Schiff, Patient Dumping: Status, Implications, and Policy Recommendations, 257 J.A.M.A. 1500 (1987).

8. Andrew J. McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 WAKE FOREST L. REV., 173, 173-237 (1989).

9. 42 U.S.C. § 1395dd. The Act is also known as COBRA and the Patient Anti-Dumping Law.

10. 42 U.S.C. § 1395dd(a); Rios v. Baptist Mem’l Hosp. Sys., 935 S.W.2d 799 (Tex. App.—San Antonio 1996, writ denied).

11. C.M. v. Tomball Reg’l Hosp., 961 S.W.2d 236, 241 (Tex. App.—Houston [1st Dist.] 1997, no writ).

12. 42 U.S.C. § 1395dd(e).13. 42 U.S.C. § 1395dd(e).14. Camp v. Harris Methodist Fort Worth Hosp., 983 S.W.2d 876, 880 (Tex. App.—Fort

Worth 1998, no pet.); Cleland v. Bronson Health Care Group, 917 F.2d 266, 269 (6th Cir. 1990).

15. Camp, 983 S.W.2d 880.16. Id.17. 42 U.S.C. § 1395dd(e)(3)(A).18. 42 U.S.C. § 1395dd(c).19. 42 U.S.C. § 1395dd(d)(1).20. 42 U.S.C. § 1395dd(d)(2).21. The Uninsured in Texas, Texas Medical Association, available at http://www.texmed.

org/Uninsured_in_Texas/22. See id.23. See id.24. TEX. CIV. PRAC. & REM. CODE § 74.153 (Vernon 2005).25. TEX. CIV. PRAC. & REM. CODE § 74.153 (Vernon 2005).26. Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007); Hernandez v. Lukefahr, 879

S.W.2d 137, 141 (Tex. App.—Houston [14th Dist.] 1994, no writ).27. Hernandez, 879 S.W.2d at 141.28. Little v. Needham, 236 S.W.3d 328, 334 (Tex. App.—Houston [1st Dist.] 2007, no pet.).29. TEX. CIV. PRAC. & REM. CODE § 74.153(a)(7) (Vernon 2005).

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Y ou receive a call from your client who is in a panic about her son, Charlie. She tells you that Charlie has bipolar disorder and has not been

taking his medication. He is refusing to eat, drink, or bathe and mumbles some-thing about “all going to die.” What do you tell your client to do to get the sick person treated quickly and safely? It is time to research. Which court has juris-diction? What law applies? How does the law work?

Probate Court No. 3 has primary re-sponsibility for mental illness proceed-ings in Harris County.1 Probate Court No. 4 has secondary responsibility.2 Probate Court No. 3 has staff at the Harris Coun-ty Psychiatric Center (“HCPC”) located at 2800 S. MacGregor Way, Houston, Texas, to handle administration of the 625 aver-

Emergency Mental

Health Care:How to Navigate in Harris County

By aMy r. ParSonS and JudGe rory r. olSen

age monthly mental health applications.3 Texas Health and Safety Code Sections

573 and 574 provide three alternate ways a person can be brought into the mental health system for evaluation.4 The person can be brought into a mental health facil-ity by either their guardian or by a peace officer. Also, any adult who has witnessed a mentally ill person exhibiting danger-ous behavior may file an application to have the person apprehended.5

If the person is actively homicidal or suicidal, DO NOT WASTE TIME... CALL THE POLICE! This option is available 24 hours a day. When you call 911, request a Crisis Intervention Team (“CIT”) officer from the Houston Police Department’s (“HPD”) Mental Health Unit. These HPD officers are specially trained in tech-niques allowing for safe detention and transport of a mentally ill citizen.6 How-ever, any peace officer can take a person to the nearest mental health facility for evaluation when he believes there is not enough time to obtain a warrant.7 The peace officer can do so when he reason-ably believes that because of a mental ill-ness, there is a substantial risk of serious harm to the person or others unless the person is immediately restrained.8 The of-ficer can take custody of your client’s son solely from information she provides or from the circumstances surrounding his encounter with the son.9 You can reassure your client that Charlie will be taken only to a designated mental health hospital—not jail—as the officer can transport him to jail only under an extreme emergency.10

A second less traumatic transport is re-alistic in some situations. If your client is the court-appointed guardian of the per-son of her adult child (“ward”), she can transport him directly, without peace of-ficer assistance or a warrant, to HCPC or any of the local mental health facilities for evaluation.11 Your client can take Charlie for in-patient evaluation when she has the same concerns as the officer.12 She can also transport Charlie if he demonstrates behavior, emotional distress and deterio-ration in his mental condition so that he cannot remain at liberty.13 This option

an application for court-ordered mental health services will be filed by the county attorney’s office.35 The law requires that court-ordered mental health services hearings (“final hearing”) will be held within 14 days of the filing of the applica-tion.36 The court may grant one or more continuances upon a good cause motion/agreement, but the continuances may not extend later than 30 days from filing of the application.37 Final hearings are heard at HCPC on Mondays and Fridays. At the final hearing, Charlie has the right to no-tice, to be present, to be on the record and to be heard by a jury.38 However, most cases are bench trials.

At the final hearing, upon reviewing the certificates of medical examination39 and the oral testimony of at least one phy-sician, if the judge finds by clear and con-vincing evidence that Charlie is mentally ill and is (1) likely to cause serious harm to himself or to others or is suffering se-vere and abnormal mental, emotional, or physical distress; (2) is experiencing de-terioration in the ability to function inde-pendently or to provide for basic needs; or (3) is unable to make a rational and informed decision regarding treatment, then the judge will sign the order com-mitting Charlie for treatment.40

Psychotropic medications, imperative for improved mental status, are occasion-ally refused by the patient. A guardian can consent for the hospital to require the administration of psychotropic medica-tions, without a court order.41 If the pa-tient is not under a guardianship, then a separate hearing following the final hear-ing must be held for the court to require a patient to take psychotropic medica-tions.42 The medication hearings are typ-ically heard immediately following final hearings.43 Charlie’s rights are the same as in the final hearing and the court will orally notify him of the ruling.44

In medication hearings, the court will consider Charlie’s preferences, religious beliefs, and perspective of the risks and benefits of taking the medication.45 The court also considers Charlie’s progno-sis, the consequences with and without

treatment, then he must file with the court a statement describing how Char-lie’s mental illness is causing him and/or others imminent risk of harm and that immediately detaining him in the hospital is the least restrictive means for treatment.23 If the judge is convinced that a substantial risk does exist, then he may sign the order of protective custody (“OPC”) and Charlie will either remain in or be transported to the appropriate mental health facility.24 However, Charlie does have several rights during this time, including the right to notice of the deten-tion and to have access to and retain an attorney.25

When an OPC is signed, the court is re-quired to appoint an attorney to represent any patient who does not already have one.26,27 An attorney is appointed by each probate court to represent all patients ap-pearing on that week’s docket.28 The at-torney represents the patient from the probable cause hearing through the final court-ordered mental health/medication hearings.29 All mental health dockets are prosecuted by the county attorney’s of-fice.30 In Harris County, the assigned as-sistant county attorney is Melinda Brents, who can be reached at (713) 741-6016.

A hearing must be held within 72 hours of the OPC to determine if there is prob-able cause (“PC”) that Charlie is at risk and must remain in the hospital pending the outcome of the final court-ordered mental health hearing.31 Charlie and his attorney shall receive written notice stat-ing he has been placed under a protective custody order, the grounds for the order, and the time and place of the PC hear-ing.32 The PC dockets are heard at HCPC on Mondays, Wednesdays and Fridays. Charlie, through his attorney, can chal-lenge any evidence alleging the need for him to remain in the hospital.33 But if the court signs the order for continued de-tention, determining that he is at risk to cause harm to himself or others, he will stay in the hospital pending the remain-ing proceedings.34

If the physicians evaluating Charlie determine that he needs treatment, then

is also available at any time of the day. Having a familiar family member/guard-ian take him to the hospital reduces the amount of stress on the mentally ill ward. Either the officer or the guardian, upon ar-rival, must immediately file an application for emergency detention with the facility.14

Third, ANY adult, regardless of his or her relation, who has witnessed the men-tally ill person acting in a dangerous man-ner, may apply for emergency detention of that person.15 This option is available dur-ing regular court business hours. The ap-plication should be filed with the county clerk/court at HCPC and must include the person’s location and clear details of what he has said or done that causes con-cern for his or others’ safety.16 Examples of granted applications are “my brother is hallucinating that I am the devil and threatened to kill me” or “my brother is bipolar and has not eaten or bathed in three days and is refusing medications.” Examples that won’t meet the code’s stan-dard are “my brother is not following di-rections” or “my brother is agitated.” Pre-pare your client to be at HCPC for a few hours while the clerk/court processes the application for the judge’s review.17,18

During regular business hours, a statu-tory probate judge or associate judge reviews and signs the warrants.19 After hours, an assigned magistrate reviews and signs the warrants.20 Upon review of the application and finding that Char-lie’s behaviors are a substantial, immi-nent risk to himself or others unless he is immediately restrained, the judge or magistrate will issue a warrant to an on-duty peace officer.21 In Harris County, the majority of warrants are served by select Precinct One constables, who are housed at HCPC. Usually, within a few hours the constables will locate, take into custody and transport Charlie to the identified hospital for treatment.

Regardless of how Charlie arrived, he initially can be detained in the mental health facility for only forty-eight hours and must be examined by a physician within the first 12 hours.22 If the physi-cian feels that Charlie needs in-patient


Amy R. Parsons is staff attorney for Har-ris County Probate Court No. Three. Ms. Parsons was employed by the Harris County Guardianship Program for eight years. She then worked as Probate Court No. Three’s court investigator for seven years before serv-ing as a staff attorney. She is also a licensed master social worker and holds a nationally certified guardian certification. The Honor-able Rory R. Olsen is Judge of Harris County Probate Court No. Three.

endnotes1. TEX. GOV’T CODE ANN. § 25.1034 (Vernon Supp. 2004).2. Id. 3. Id.4. TEX. HEALTH & SAFETY CODE ANN. §§ 573 & 574

(Vernon 2010). 5. Id. §§ 573.001, 573.003, 573.011. 6. To learn more call (713) 971-4620 or visit http://www.

houstoncit.org/.7. TEX. HEALTH & SAFETY CODE ANN. § 573.001 (Vernon

2010). 8. Id.9. Id.10. Id.11. Id. at § 573.003. 12. Id.13. Id.14. Id. at §§ 573.002 & 573.004. 15. Id. at § 573.011. 16. Id.17. TEX. HEALTH & SAFETY CODE ANN. § 573.012 (Vernon

Supp. 2010).18. For a list of mental health facilities in Harris County, contact

the court at HCPC at 713-741-6020.19. TEX. HEALTH & SAFETY CODE ANN. § 573.012 (Vernon

Supp. 2010).20. Id.21. Id.22. TEX. HEALTH & SAFETY CODE ANN. § 573.021 (Vernon

2010) & § 574.022 (Vernon Supp. 2010).23. TEX. HEALTH & SAFETY CODE ANN. § 573.021 (Vernon

2010).24. TEX. HEALTH & SAFETY CODE ANN. § 573.012 (Vernon

Supp. 2010).25. TEX. HEALTH & SAFETY CODE ANN. § 573.025 (Vernon

2010).26. Id. at § 574.024. 27. Patients who hire their own attorney make up less than one

percent of the docket.28. TEX. HEALTH & SAFETY CODE ANN. § 574.003 (Vernon

2010).29. Id.30. Id. at § 574.001. 31. Id. at § 574.025. 32. Id. at § 574.024. 33. Id. at § 574.025. 34. Id. at § 574.026. 35. Id. at § 574.001. 36. Id. at § 574.005. 37. Id. 38. Id. at §§ 574.006, 574.031, 574.032.39. By the date of the hearing, there must be on file at least

two sworn certificates of medical examination for mental illness completed by different physicians, each of whom has examined Charlie during the preceding 30 days.

40. TEX. HEALTH & SAFETY CODE ANN.§§ 574.031, 574.034, 574.036 (Vernon 2010).

41. Id. at § 574.103. 42. Id. at § 574.106. 43. Id. 44. Id. at § 574.105. 45. Id. at § 574.106. 46. Id.47. Id.48. Id. at § 574.034. 49. Id. at §§ 574.070 & 574.108. 50. TEX. HEALTH & SAFETY CODE ANN. § 574.110 (Vernon

Supp. 2010).

does have the right to appeal the final and forced medication hearing.49

Keep in mind that the forced medication order does not follow Charlie upon dis-charge and is only applicable while the or-der of commitment is in effect.50 So, once Charlie has been treated and discharged, if he experiences another psychotic break, your client will have to start the process all over again. However, you are now armed and ready with advice on how to help Charlie. Godspeed, Charlie.

the medication and any lesser intrusive treatments to psychotropic medications.46 If the testimony and medical evidence show by clear and convincing evidence that Charlie lacks the capacity to consent and it is in his best interest, the court will sign an order allowing the facility to force the administration of psychotropic medications.47 Charlie will then receive in-patient treatment, not to exceed 90 days, until the doctors believe he will not harm himself or others.48 However, he

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Harris County Therapeutic Courts:

A Holistic

Approach to

Justice

Harris County, like many coun-ties across the country, is working actively to address the health issues that plague the court system and impact

the revolving door to the courts. Mental illness and drug addiction are two very serious health conditions that challenge our courts, increase the county’s jail popu-lation and utilize a vast amount of finan-cial resources. While the two conditions are distinct and each offers its own set of unique challenges, many of those indi-viduals diagnosed with a serious mental illness often struggle with drug addiction. People diagnosed with mental illness or drug addiction are also more likely to re-commit crimes if the underlying mental condition is not treated adequately.

In 2009, approximately 25 percent of the Harris County jail population received psychotropic medications.1 Recent studies indicate the number of inmates diagnosed with a mental illness continues to rise.2 In 2009, the Mental Health and Mental Retardation Authority of Harris County (MHMRA) reported that 25 percent of the inmates housed in the Harris County Jail were mentally ill, and the cost to treat those mentally ill patients during that fis-cal year was approximately $87 million.3 According to the Mental Health America of Greater Houston (MHA), the Harris Coun-ty jail is the largest unofficial psychiatric center in the state of Texas.4

Solutions to Lack of Mental Health Care and Drug AddictionOver the past decade, Harris County has implemented five types of therapeutic courts that focus on bridging the gap of therapeutic approaches, justice and legal remedies. Those courts include: Star Drug Court, Infant and Toddlers Court, Veterans’ Court, Felony Mental Health Court and SOBER Court. These courts aim to reduce recidivism, provide an opportunity for treatment, reduce costs, and produce con-fidence and safety within the community.

By Farrah Martinez

erans charged with sexual offenses, drug delivery or any offense listed under Texas Code of Criminal Procedure Article 42.12 Section 3g, with the exception of aggravat-ed assault, are ineligible to participate. All participants must admit guilt to the crimi-nal offense and are required to submit to a clinical evaluation to confirm that their criminal offense is related to mental illness or substance use.

The program’s success has gained na-tional attention and was recently featured on CBS’s 60 Minutes.

Mental Health CourtIn April 2012, the Felony Mental Health Court (FMHC), the most recent addition to the assortment of therapeutic courts in Harris County, accepted its first par-ticipant. Like the other therapeutic courts, there is no shortage of qualifying partici-pants. Judge David Mendoza and Judge Brock Thomas currently preside over the FMHC, and participants are referred to the program by other courts, attorneys, and the FMHC Project Director. Qualified partici-pants are non-violent felony offenders with a mental illness, who are legally competent. Additionally, a correlation must exist be-tween the mental illness and the behavior displayed in the criminal charge. The par-ticipants must submit to a clinical evalu-ation and intensive mental health treat-ment; and if necessary, must participate in substance abuse treatment and agree to all other terms of probation. The FMHC’s primary purpose is to ensure public safe-ty and reduce recidivism while diverting defendants with a mental illness from in-carceration to appropriate treatment and community resources. If a candidate is excluded from the program, the referring court or attorney receives a written expla-nation indicating the reason for the denial and the candidate is generally referred to a more appropriate specialty court.

SOBER—Saving Ourselves By Education & RecoverySOBER Court is a DWI Court developed by the Harris County Criminal Courts at Law to increase public safety, reduce long-

to as the Infant Toddler Court. Priority number one is still the safety of the child; but now a greater emphasis is placed on providing the youngest children involved in these cases an opportunity to bond with their parents to offset the negative effects of removing a child from his or her fam-ily at such a young age. Parents can take advantage of a wide range of treatment services: detoxification, residential treat-ment, outpatient care, aftercare, individual counseling and family and couples coun-seling. The program also seeks to provide parents with ancillary services such as employment training, parenting skills en-hancement, anger management education, social/life skills training, literacy training and transportation services to help them achieve life-long success. Participants gen-erally spend 12 to 18 months completing the program, and participants receive ran-dom drug tests throughout all phases of the program.

Veterans CourtIn 2009, Harris County developed the Veterans’ Court. Its mission is to increase access to mental health and addictions treatment for those veterans charged with criminal offenses by diverting participants to treatment to reduce jail time, costs and criminal recidivism, and to improve men-tal health recovery and successful re-entry into the community. Judge Marc Carter presides over the Veterans’ Court Program and collaborates closely with the U.S. De-partment of Veterans Affairs (VA) as well as many government agencies and com-munity partners to provide treatment and myriad services and assistance to veteran participants.

To be eligible, a participant must have received an honorable or general dis-charge, be on active duty or a member of the reserves, have a pending eligible felony offense, be a legal resident or citizen of the United States, have a mental health condi-tion, traumatic brain injury and/or sub-stance use diagnoses that is related to the criminal offense, be eligible for VA servic-es, and be a first-time offender and/or have served in combat or hazardous duty. Vet-

Star Drug Court—Criminal CourtsThe Success Through Addiction Recovery (STAR) program aims to build the com-munity’s confidence in the criminal justice system by using a more effective approach of intervention and altering the perception of addiction. STAR’s four dockets handle more than 140 clients each year. The par-ticipants are indentified as non-violent re-peat drug offenders, and the goal is to assist those participants in overcoming serious drug addictions. As a part of the program, the defendants receive intensive individu-alized supervision by court staff and treat-ment providers. Participants are required to appear frequently before their judge, submit to random drug screening, attend a 12-step program and agree to participate in group and individual treatment and coun-seling programs. STAR not only provides the tools needed to overcome addictions, it provides participants the opportunity to achieve educational, employment and social goals. Currently, Justice Jeff Brown, Judge Vanessa Velazquez, Judge Bill Burke and Judge Denise Bradley each preside over one of the four dockets. Graduates of the STAR Drug Court program have reached at least six months of sobriety and are either employed or enrolled as full-time students.

Star Drug Court—Infant Toddler Court Family Intervention Court (FIC/ITC)The Family Intervention Court began in 2004 and is the only family drug court in Harris County. Judge Bonnie Hellums and Associate Judge Meca Walker preside over the current FIC/ITC docket. FIC’s vision is productive parents supporting healthy children emotionally and financially. Par-ticipants of the program are parents who have had children removed from custody due to physical abuse or neglect, or non-custodial parents who failed to comply with court orders and face the potential of incarceration. Eligible participants must have a substance abuse problem, agree to participate in the program and be identi-fied as a non-violent offender. Participants also must not have an acute mental health disorder that would prevent treatment. As the program has evolved, it is often referred


term costs to the criminal justice system and protect the safety and welfare of the community. The SOBER program oper-ates a judicially supervised court docket currently overseen by Judge Robin Brown, Judge Natalie Fleming and Judge Diane Bull. As part of the program, participants are required to undergo intensive alcohol and/or drug counseling and each partici-pant frequently appears in court before the judge for review of the participant’s prog-ress. Participants are also regularly and randomly tested for alcohol and drug use.

The Harris County Criminal Courts at law, the District Attorney’s Office, the defense bar, the Community Supervision and Corrections Department, the Harris County Sheriff’s Department, substance abuse treatment providers and a host of so-cial service agencies across Harris County work together to support the program’s continuation and success. SOBER Court’s goal is to break the cycle of addiction, re-duce the number of repeat DWI offenders, promote and enforce abstinence from alco-hol and drugs, provide intensive and effec-tive treatment and rehabilitation and hold offenders accountable for their criminal conduct.

ConclusionHarris County therapeutic courts are striving to identify and treat the health conditions that induce criminal behav-ior. They are fulfilling a growing need to combine justice with treatment of serious mental illnesses and drug addiction to re-duce jail time or deflect incarceration and to reduce recidivism.

Farrah Martinez is the Director of Legisla-tive Affairs at the Harris County District Clerk’s Office. She is also a member of The Houston Lawyer Editorial Board.

endnotes1. W. Schnapp, J. Burruss, S. Hickey, K. Mortensen & P. Raffoul,

The Consequences of Untreated Mental Illness in Houston: A Report of the Mental Health Policy Analysis Collaborative of the Health of Houston Initiative of the University of Texas School Public Health, 11 (September 2009), available at http://med.uth.tmc.edu/departments/psychiatry/mentalhealthanalysis/untreated_illness.pdf.

2. Id at 12.3. MHMRA Overview of Mental Disorders, available at http://

www.mhmraharris.org/AgencyNews.asp.4. Schnapp, supra, at 25, n.1.


Alawyer who wants to make a dif-ference must sometimes show the courage to risk a career for the sake of doing the right thing. This

often means breaking stereotypes. No bet-ter example of a lawyer who did that exists than Hortense Ward. She devoted her life, and risked her law practice, to become an active advocate for justice.

Ward started her career as a schoolteacher, and became interested in the law while serving as the Court Reporter of the 55th District Court in 1903. She passed the bar in 1910 and, at the age of 38, became the first woman attorney in Texas. She soon found her greatest skills to be a writer and speaker. In 1913, she drafted and lobbied successfully for the “Married Women’s Property Law,” which gave women the power to bring lawsuits, sign contracts and manage their separate property. For the balance of the

decade, she was a national speaker and a local leader for the effort to allow women’s suffrage. Her reward came on June 27, 1918, when she was the first woman to register to vote in Har-ris County.

In 1926, she showed great courage in her efforts to fight the Ku Klux Klan. The Klan was attempting to take over the judicial system of Harris County. They had been successful in several races in the 1924 Democratic Primary, and the 1926 election was a pitched fight be-tween the Klan and the “Citizens Democratic League.” Risking her career in the event of a Klan sweep, she spoke out against their candi-dates for office, and organized rallies in neigh-borhoods all around Harris County. Newspaper accounts of the day show her speaking night after night, imploring people to vote against “intolerant secret societies.” Her efforts were largely (but not entirely) successful – only one

pro-KKK judge was elected.

She was born with a gift of speech, and used it as a means of achieving justice for women and stopping in-justice in its most insidious form. For our mothers, sisters,

and daughters, as well as for our community at large, she made a difference.

The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had signifi-cant impact on the law, the legal profession and those served by the law.

Houston Lawyers Who Made a Difference

Hortense Ward

hortense Ward

By JudGe MarK daVidSon

Estate, Trust and Guardianship Litigation

www.fordbergner.com

Since 1999, Don Ford and Ford+Mathiason LLP have served clients throughout Texas with complex estate, trust, and guardianship litigation needs. More recently, those cases have involved significant commercial and oil & gas issues, requiring expertise in those areas. As the needs of our clients have evolved, the firm has called on the extensive expertise of Mr. Ford’s long-time colleague Richard F. Bergner in addressing commercial and oil & gas issues.

Although our focus remains on estate, trust, and guardianship litigation cases, we appreciate the changing needs of our clients and the ability to offer them more comprehensive services. As a result, we are pleased to announce the firm’s new strategic partnership with Richard F. Bergner and the re-naming of the firm to Ford+Bergner LLP.

Don D. Ford III | Managing Partner

Board Certified in Estate Planning and Probate

Richard F. Bergner | Partner

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Ford+Bergner Houston Lawyer Ad H.indd 1 1/9/13 3:59 PMthehoustonlawyer.com January/February 2013 33

63rd Harvest Party Raises Record $613,900 for Houston Bar FoundationT

he 63rd Harvest Par-ty, co-sponsored by the Houston Bar As-sociation, Houston

Bar Association Auxiliary and Houston Bar Foundation, raised a record $613,900 in underwrit-ing to benefit the Foundation, the charitable arm of the asso-ciation. The event was held No-vember 12 at River Oaks Coun-try Club, with more than 1,000 HBA members and their guests in attendance. HBA Treasurer Carter Crow and Houston Bar Foundation Chair Robert J. McAughan served as event co-chairs.

The Houston Bar Foundation is now in its 30th year of service to the legal community and the profession. The Foundation’s pri-mary beneficiary is the Houston Volunteer Lawyers Program, which provides thou-sands of hours of pro bono legal representa-tion to low-income Harris County residents

each year.

Photos by Temple Webber Photography

From left, robert J. Mcaughan, 2012 chair of the houston Bar Foundation; Brent Benoit, president of the houston Bar association; christy Benoit; ansley Buttram, president of the houston Bar association auxiliary; and Stephen V. Buttram.

attorneys from lyondellBasell turned out to support the harvest Party


63rd Harvest Party Raises Record $613,900 for Houston Bar Foundation

John eddie and Sheridan Williams

John Kim and denise Mitchell

thomas M. roche and his daughter, Kristen hulbert

the hon. Jane and doug Bland

tyla President c.e and daj rhodes

Pamela and curtis Frasier

Muhammad aziz and Sammy Ford iV

South texas college of law dean donald and Pat Guter


CoMMiTTee sPoTLigHT

The HAY Center Committee was es-tablished in 2010 as a partnership with the Houston Bar Association. The HAY Center, a program of Har-ris County Protective Services, em-

powers youth ages 16-21 and alumni to be-come successful, productive citizens through much-needed services as they depart from Family and Protective Services. There are hundreds of thousands of children in foster care. In Texas alone, there are approximately 28,883 youth currently in foster care. In the Greater Houston community, 6,613 youth currently live in foster care, and almost 10 percent age out of the system each year, which means they come of age while still in the foster care system.

In 2009, the HBA began providing speak-ers to the HAY Center’s PAL (Preparation for Adult Living) program education sessions. This speaker series has continued each bar year with a focus on landlord/tenant law, child custody, and juvenile law topics dur-ing the youth’s spring and summer breaks. In 2010-2011, HBA President Mark Kelly cre-ated a HAY Center Committee in order to ex-pand the HBA’s work from providing speak-ers to planning day long training seminars for the staff case managers, helping juveniles seal and/or expunge their juvenile criminal records, and holding a drive to stock the sup-ply “Ready Room” for youth going to college or transitioning to an independent living en-vironment. The HBA also collects interview appropriate clothing and prom clothing for the HAY Center. The committee is co-chaired by Gregory Ulmer of Baker Hostetler LLP, El-lyn Josef of Vinson & Elkins LLP, and Lynn Kamin of Jenkins & Kamin, L.L.P. Each of the three committee co-chairs’ firms have be-come HBA HAY Center partners.

In 2011-2012, the committee created sub-committees to plan three events: the Ready Room drive, Holiday Party, and Prom Event. Each event was a huge success. The Ready Room drive collected over 5,600 items and

$4,530 in cash donations, which purchased play yards, diapers, strollers, and more. The holiday party drive received $5,440 in cash donations, $476 in gift cards, and many new toys, providing food, gifts, stockings, decorations, and door prizes for 165 foster youth and their own children who attended the party. The prom event for 26 high school seniors al-lowed the boys and girls to take home prom clothing and goodie bags and to re-ceive valuable advice from area experts.

As a part of the commit-tee, I attended the holiday party which was held at the HAY Center and the prom event which was held at Houston Community Col-lege. The foster youth and their children were so ex-cited to attend the holiday party. One game that took place at the party encour-aged the youth to mingle and talk to staff and vol-unteers. I was inspired by speaking to one young lady who had been in fos-ter care since she was two years old. She is over 18 now, but still has a positive outlook on life and her fu-ture and wants to help others who were in her same circumstances. According to Mary Green, the HAY Center director of transition-al living services, “The holiday party is the only time youth are able to celebrate the holi-day as many have no family to spend it with. Some former foster youth have shared with us that even in the foster home they were not included in the holiday festivities with their foster family.”

HAY Center Committee Helping Youth Transition to AdulthoodBy anGela l. dixon

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Meredith Clark, a HAY Center Committee member, and Alyan Haidery, both of Win-stead PC, assist with the holiday party.

The prom event was enjoyable as well. It was so exciting to see the young girls’ faces light up when they tried on a dress that fit them perfectly, and the young men filled

with pride that they would be looking very dapper on prom day. My favor-ite memory of the prom event came when the stu-dents were asked if they were going out to dinner for the prom. All of them responded no, but I knew that thanks to donations from HBA members and friends, they were. At the end of the event, all of the students were able to choose a gift card to an assortment of restaurants, and every one truly appre-ciated it.

Additionally this year, the committee is focusing on a record sealing pro-gram that extends beyond just HAY Center youth. The program will be avail-able to all youth who qualify to have their first offenses or misdemeanor convictions sealed. Volun-teer attorneys were trained in November by the Hon-orable Judge Michael Schneider.

The committee welcomes donations for the Ready Room Drive and Prom Event. Members can contact Bonnie Simmons at [email protected] or call the HBA at 713-759-1133 for more information.

Angela L. Dixon is an attorney with a civil practice, focusing on wills and probate, landlord/tenant disputes, and personal injury law. She is an associate editor for The Houston Lawyer.

Ellyn Josef of Vinson & Elkins, co-chair of the HAY Center Committee, helped make the holiday party special for both HAY Center youth and their children.

Shopping for dresses at the HAY Center Prom Event.

Learning how to tie a tie is part of helping young men look their best for prom.


A ProfileiN PRoFessioNALisM

c.e. rhodeSU.S. Operations and Compliance Counsel, Baker Hughes Incorporated

President, Texas Young Lawyers Association

More than 20 years ago, at a time when many of today’s young lawyers were in elementary or middle school, The Texas Lawyer’s Creed – A Mandate for Professionalism was promulgated and

adopted by the Supreme Court of Texas and the Court of Criminal Appeals. The creed was created to eliminate abusive tactics used by a minority of Texas lawyers that undermined the public perception of the profession and the interest of justice. The creed sets forth stan-dards respecting the legal system, clients, colleagues, and the judiciary to which every Texas lawyer should be committed. It implores Texas lawyers to hold them-selves and their peers to a standard above and beyond what is required by the Texas Disciplinary Rules of Pro-fessional Conduct. Every Texas lawyer is responsible for understanding and complying with the creed.

Out of the creed’s 44 enumerated standards, perhaps it is no surprise that nearly half (43.1 percent) of the standards relate to the duties that lawyers owe to op-posing counsel. We all have heard stories about, or had unfortunate experiences with, opposing counsel who have failed to act in accordance with the creed. Examples such as personal attacks in correspondence and pleadings, noticing depositions arbitrarily without any attempts to coordinate schedules with counsel, and purposefully waiting until the end of the business day to serve motions should not be the norm. In to-

day’s environment, where there is ever-increasing pres-sure to meet client demands and exceed expectations, lawyers may feel the need to take an unreasonable or overly aggressive position with opposing counsel in or-der to impress the client. Such tactics, however, have the opposite effect of impressing clients and actually diminish the public’s perception of lawyers. Zealous advocacy should not result in unprofessional conduct.

Furthermore, when emotions run high between a client and an adversary, remember that we are paid to objectively view the facts and provide sage advice and counsel. If we allow our clients’ emotions to affect how we interact with opposing counsel, then our clients ul-timately suffer, as needless bickering between counsel results in petty motions and unnecessary fees. When faced with unprofessional conduct, take the high road in both deeds and words – courts and juries tend to reward counsel who do so.

At a time when public perception of lawyers is per-haps at an all time low, it is imperative that we carry forward the torch for professionalism. We must behave in a manner that is consistent with the established standards set forth in the creed and hold one another accountable to ensure compliance by our peers. We can only improve public perception of our profession if we work together to adhere to the highest level of ethical and professional conduct, as mandated by the courts.


oFF THe ReCoRd

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By Polly GrahaM

Ten year-old Victoria Agosto, co-author of a new chil-dren’s book about the legal system, gives her young readers some timeless words of advice: “Always follow your dreams.” To find the source of her inspiration you need to look no further than her co-author and

father, Benny Agosto Jr. Benny is a named partner at the Houston law firm of Abraham, Watkins, Sorrels, Agosto & Friend and immediate-past President of the Hispanic National Bar Association. His accomplish-ments are diverse, yet marked by two common attributes—success and compassion.

The story Benny created with his daughter is called Victoria Goes to Court. It teaches children about the power lawyers have to fight injustice in society. Victoria is a young girl who studies hard. One day in school, she learns how Dr. Martin Luther King Jr. encouraged people across the country to peacefully fight injustice. So Victoria asks her teacher how she can make a difference in the world, and thus begins a journey of discovery revealing how lawyers can help solve problems and fight injustice in court. Benny self-funds the publication of the book in English and Spanish and has given free copies to students from Texas to Virginia. The inspiring story even caught the attention of Supreme Court Justice Sonia Sotomayor, who autographed a copy to encourage its young co-author.

Benny’s commitment to advancing the legal community began many years ago. After growing up in Puerto Rico, Benny moved to Texas where he started his career coaching collegiate soccer and teaching microbiology. He quickly realized that he wanted the power to influence broad scale changes, particularly those that would benefit the Hispanic community as it struggled to

overcome prejudice in Texas. So Benny became a lawyer and, in addition to maintaining a successful private practice, used his power to establish the Mexican American Bar Association of Texas Foundation. The Foundation, which recently celebrated its seventh annual awards luncheon, provides scholarships to students identified for their outstanding contributions to the Hispanic legal community. Benny also serves the HBA as first vice president and chair of the Dispute Resolution Center.

Benny is a prolific writer who has authored dozens of articles and speeches over the years. And once again, he translates this tal-ent into a way to help others. He currently serves the Hispanic legal community as editor-in-chief of the Hispanic National Bar Association’s Journal of Law and Policy. He is also developing a litigator’s guide to understand-ing cultural and legal issues sig-nificant to the Hispanic commu-nity and speaks with enthusiasm about the possibility of turning Victoria Goes to Court into a se-ries of books aimed at educating children about other important

aspects of the law.Benny’s focus on helping others is readily apparent during even

a short interview. When asked about his accomplishments, Ben-ny quickly turns the conversation to his own mentors and the need to support promotion and advancement of women and mi-nority lawyers. He takes pride in discussing his four children and pauses a moment to answer their calls where he dispenses advice with a healthy mix of high expectations. So when Benny reads Victoria Goes to Court to young students across the country, they are faced with not only an inspiring story but also a true model of how one lawyer can make a difference in the community.

Polly Graham is an associate in the appellate section at Haynes and Boone, LLP and a member of The Houston Lawyer editorial board.

Benny Agosto Jr. and Victoria Goes to Court

Nikki, Benny and Victoria Agosto at a book signing at the dedication of the Randall O. Sorrels Legal Clinics at South Texas College of Law.


AT THe BAR

The Hon. Brad Hart was sworn in as judge of the 230th District Court on February 1 by the Hon. Stacey Bond, judge of the 176th District Court. He was joined by his children, Savannah and Hunter Hart; his parents, Linda and Robert Ragland; and his sister, Brook Baugh.

The Hon. Elizabeth Ray was sworn in as judge of the 165th District Court on January 31 by her daughter, Morgan Haenchen. They were joined by Judge Ray’s son, Jackson Haenchen.

The Hon. Brock Thomas was sworn in as judge of the 338th District Court on January 25 by the Hon. Michael McSpadden, judge of the 209th District Court. He was joined by his family, Trisha, Ryan and Zachary Thomas.

The Hon. Stacey W. Bond was sworn in as judge of the 176th District Court on January 24 by The Hon. Brock Thomas, judge of the 338th District Court. She was joined by her family, Benton, Braxton and Brynn Bond.

The Hon. Renee Magee was sworn in as judge of the 337th District Court on January 11 by the Hon. Elsa Alcala, jus-tice, Texas Court of Criminal Appeals. She was joined by her children, Angela Stickline and Christopher Schirmer.

The Hon. Elaine Palmer was sworn in as judge of the 215th District Court on January 2 by the Hon. Zinetta A. Burney, Justice of the Peace, Pct. 7, Place 2, with Jacoby Hubbard holding the Bible.

A portrait of the Hon. Jacqueline Lucci Smith was unveiled on December 18 by her husband, Richard A. Smith, joined by Evelyn Grace and Rockford Alexander Smith. The por-trait honored her service as judge of County Civil Court at Law #2 from January 2007 through February 2012.

The Hon. Wesley R. Ward was sworn in as judge of the 234th District Court on December 14 by the Hon. Bill Boyce, justice on the 14th Court of Appeals. He was joined by his family, Molly, Lily, Ava and Wylie Ward.

The Hon. Brett Busby was sworn in as justice on the Fourteenth Court of Appeals on September 4 by the Hon. Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit. He was joined by his wife, Erin Glenn Busby and children Katie and Will.

JUDICIAL CEREMONIES


LegAL TReNds

The America Invents Act By al harriSon and dereK Mueller

The recently enacted Smith-Leahy America Invents Act (“AIA”) has sought to harmonize U.S. Patent Law with long-standing worldwide patent protocols. After a nearly 60-

year hiatus, the new patent law was orchestrat-ed to remove barriers to innovation that unnec-essarily delayed American inventors from com-mercializing new products and creating jobs for American workers. Besides emphasizing a patent system that strives to expeditiously grant “good patents” and simultaneously precludes “bad patents,” the AIA has transformed the U.S. First-To-Invent basis for establishing pat-ent rights into a First-to-File/First-To-Publish basis that has been and continues to be relied upon by all countries throughout the world. Nevertheless, this new patent procurement re-gime seems to behave more akin to a new and unique hybridized patent system rather than constituting a harmonized system. A brief sum-mary of some of the more significant changes are highlighted below.

Satellite OfficesThe AIA requires the U.S. Patent & Trademark Office to establish at least three satellite offices throughout the U.S. as determined by available resources. It is contemplated that this regional office infrastructure (Detroit, Denver, Dallas-Fort Worth, Silicon Valley) will be in place by September 16, 2014 and will facilitate and fore-shorten patent prosecution by enabling patent counsel and inventors to have local or regional access to patent examiners.

First Applicant to File or PublishAs of March 16, 2013, the AIA changes U.S. Patent procurement priority from a First-To-Invent system to a First-To-File system. Prior-ity is accorded the first inventor or applicant to file, or to the first inventor to publicly disclose

the invention who then files within one year. This new system precludes patentability of an invention if the invention has been described and claimed by another applicant in a patent or a patent application that has been filed based upon an effective date prior to the effective fil-ing date of a later-filed patent application, or otherwise described in a printed publication written by a third party.

Patentability Preclusion based upon Prior ArtThe AIA broadens patentability preclusion from within the U.S. to anywhere worldwide. More particularly, an inventor or other appli-cant is precluded from obtaining a patent if an invention has already been patented, been de-scribed in a printed publication, been on sale, been in public use or otherwise publicly avail-able, anywhere worldwide, prior to the effec-tive filing date of the implicated patent applica-tion. Similarly, patentability is precluded if an invention has been described in a U.S. patent or U.S. patent application publication filed by or on behalf of another inventor and having an effective filing date prior to the applicant’s fil-ing date anywhere worldwide.

Grace PeriodFormerly, there existed a one-year grace pe-riod during which an invention was not barred from patentability if the invention was dis-closed in a printed publication anywhere in the world or if it was in public use or on sale in the U.S. Under the AIA, effective March 16, 2013, the one-year grace period has been reduced in scope to a “personal” grace period inasmuch as it is limited to disclosures by an inventor or to another individual who is privy to the inven-tor’s disclosure and effects such disclosure with the inventor’s authority. Accordingly, other subsequent disclosures not derived from such inventor’s disclosures constitute a statutory bar to patentability.

Bad Faith Patent Application-FilingAs a sword against a bad faith applicant who first-files a patent application based upon an-other party’s invention, the AIA establishes “Derivation Proceedings” effective March 16,

2013. From the time that such a bad faith filing is effectuated, an actual inventor is afforded a one-year window during which to file a peti-tion that the invention claimed in a later-filed patent application is the same or substantially the same as an earlier-filed patent application. This derivation-petition must be supported by substantial evidence that the claimed invention was derived from the actual inventor. In lieu of this inventorship issue being resolved via Derivation Proceeding before the Patent Trial and Appeal Board or being appealed to either district court or the Court of Appeals of the Federal Circuit, the parties may seek resolu-tion through binding arbitration or settlement. Notwithstanding, a settlement will be rejected by the Patent Trial and Appeal Board if the settlement’s terms are inconsistent with the derivation-evidence of record.

Third Party Challenges to PatentabilityEffective September 16, 2012, the AIA estab-lished new methodologies that enable a third party to affirmatively challenge: (1) the patent-ability of pending patent applications; and (2) the validity of a claimed and already-patented invention through administrative trial proto-cols heard by a newly-formed Patent Trial & Appeal Board (“PTAB”). These new proce-dures are intended to serve as cost-effective and time-efficient alternatives to district court litigation. To promote issuance of sound pat-ents, the AIA established a Supplemental Ex-amination protocol for a patentee to request that the PTO consider, reconsider or correct information believed to be relevant to an is-sued patent, thereby enhancing the integrity of the patent.

Pre-Issuance SubmissionFor published pending patent applications, a third party may submit prior art and other references to the U.S. Patent Office provided such submission occurs prior to the later of the first official substantive communication from a patent examiner addressing patentability (“Of-fice Action”) or six months after publication of the patent application, and also assuming pay-ment of prerequisite filing fee. The third party

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has the burden of elucidating the relevance of the prior art references to assure that the ex-aminer has considered all relevant materials prior to assessing patentability. Patents, pub-lished patent applications, and other printed publications may be submitted for any reason. Interestingly, such a pre-issuance filing is not required to be served upon the applicant’s pat-ent counsel, who should periodically check the electronic file-wrapper.

Post Grant ReviewA third party may file a Post Grant Review pe-tition within the first nine months of the issu-ance of a Patent Grant, with the objective of invalidating one or more of the claims. The challenged patent must emanate from a First-to-File application that has an effective date subsequent to September 16, 2013. Such a petition may be filed by a third party so long as the third party has not already filed a civil action in federal district court based upon on a ground that challenges validity and enforce-ability of a patent claim — relying exclusively upon prior art patents and/or prior art printed publications. The petitioner has the burden to analyze and construe the scope of the implicat-ed claim(s), to elucidate the grounds of unpat-entability evidence, and to elucidate how the relevant written evidence “reads-on” the scope of the construed claims. The burden of proof corresponds to establishing that it is more like-ly than not that at least one challenged claim is unpatentable.

Inter Partes ReviewAs an option intended to function in conjunc-tion with a Post Grant Review, Inter Partes Re-view enables a third party to petition the PTAB no earlier than nine months subsequent to the issuance of a Patent Grant but subsequent to termination of a Post Grant Review. An Inter Partes Review requests that an issued patent, regardless of whether filed on the basis of pre-existing First-to-Invent or new AIA First-to-File protocol, with the objective to invalidate one or more of the challenged claims. The bur-den of proof corresponds to establishing that there is a reasonable likelihood that at least one

challenged claim is unpatentable, but solely on the basis of the claim being anticipated or ob-vious in view of petitioner’s cited patents and/or printed publications. Akin to a Post Grant Review, an Inter Partes Review petition may be filed by a third party as long as the third party has not already filed a civil action in federal court based upon a ground that challenges va-lidity and enforceability of a patent claim rely-ing exclusively upon prior art patents and/or prior art printed publications. The petitioner has the burden to analyze and construe the scope of the implicated claim(s), to elucidate the grounds of unpatentability evidence, and to elucidate how the relevant written evidence reads-on the construed claims.

Supplemental ExaminationSupplemental Examination enables a paten-tee to request the PTO to entertain submitted materials for the primary purpose of assuaging allegations of inequitable conduct that hereto-fore was frequently invoked by a third party to seek to invalidate an issued patent. Having the option throughout a patent’s life cycle, a pat-entee may seek the Supplemental Examination route to establish a safe harbor against poten-tial allegations of inequitable conduct based upon conduct effectuated during prosecution of the underlying patent application. Materials submitted are not limited to patents or printed publications, but may include any item of in-formation deemed by the patentee to be rel-evant to any patentability ground.

The provisions of the AIA summarized above are just a few of the many changes im-plemented by the bill. As proponents and crit-ics line up on either side of the new law, the effects of the bill remain to be seen. In any event, The America Invents Act represents the most significant change in U.S. patent law in decades.

Al Harrison is a patent attorney practicing intellectual property law with the firm Har-rison Law Office, P.C. He is a member of The Houston Lawyer Editorial Board. Derek Mueller is an attorney practicing law with the firm of Mueller & Mueller LLP.

The Numbers Show Success of Tort Reform Goals By lynne liBerato and Kent rutter

Conventional wisdom holds that tort reform has worked to limit plaintiffs’ recoveries in tort cas-es. But is the conventional wis-dom true? The statistics reveal

that the answer is “yes.” More than nine years ago, we published

our comprehensive study of reversals in civil cases in the Texas courts of appeals during the 2001-2002 court year. In 2012, we repeated our study using data from the 2010-2011 court year. A comparison of the two studies shows that tort reform measures enacted in the interim significantly darkened the outlook for plaintiffs in tort and DTPA cases, both at trial and on appeal.

Filings and appeals: Tort reform measures enacted by the Legislature, as well as Texas Supreme Court decisions favoring tort defen-dants, appear to have discouraged some tort and DTPA plaintiffs from filing suit. Accord-ing to the Office of Court Administration, be-tween 2002 and 2010, the number of “injury or damage” cases filed in the trial courts fell by 12%.

When lawyers do file personal injury cases, they are often hesitant to turn down a settle-ment offer and pursue the case to judgment. According to the Office of Court Administra-tion, between 2002 and 2010, the number of “injury or damage” cases decided by summary judgment, jury trial, or bench trial fell by 25%.

When tort and DTPA cases reach final judg-ment, plaintiffs are often hesitant to appeal an adverse result. The number of appeals from final judgments taken by tort and DTPA plain-tiffs has plunged by 39% since the 2001-2002

Continued on page 45


Business and Commercial Litigation in Federal Courts, Third Edition robert l. haig, editor in chief2011 West, 12,742 pages reviewed by Jill yaziJi

B usiness and Commercial Litiga-tion in Federal Courts, Third Edi-tion, edited by Robert L. Haig, is a compilation of knowledge, experience and legal strategies

of 251 of the nation’s most distinguished federal practitioners, including 22 judges. The Third Edition is eleven volumes, add-ing three volumes to the Second Edition, published in 2005. This expanded treatise is welcome: it updates the original chapters of the Second Edition and expands its reach to 34 new chapters, such as “Derivatives,” “Money Laundering,” and even “Medical Malpractice.”

The eleven-volume Third Edition is as-tounding not only in its thematic reach, but also in the depth of its detail. Each chapter is equipped with practice tips, and many have forms that bring the concepts discussed to the fingertips of the user. In fact, a state court practitioner frustrated by the lack of comprehensive business and commercial forms may well turn to this edition and find its forms applicable—from contingent fee agreements and noncash settlements to fraudulent inducement, demand letters, and partnership litigation. Likewise, this edition adds checklists of allegations, defenses, cli-ent counseling sections, and jury instruc-tion, all also included on a CD.

Our own Texas litigators and judges con-tribute prominently to this epic endeavor, including 15 different authors and seven chapters, with Charles Babcock featuring

one of the new chapters entitled, “Prior Re-straints on Speech”—a riveting discussion of this constitutional doctrine and its appli-cability to the business context.

Vincent Hess and John McElhaney co-authored the chapter on “Costs and Re-imbursements,” rendering this relatively technical subject engaging and accessible. This strategy-filled chapter discusses how a prevailing party can recover costs, the appli-cable statutes allowing recovery of taxable costs, and various definitions of “prevail-ing” party, along with a comprehensive list of costs that may or may not be recoverable. Hess and McElhaney argue that seeking the court’s prior approval of items to be taxed or recovered at the outset of the case is not placing the cart before the horse, as many litigants suppose, but rather a wise practice supported by extensive case law.

Stephen Susman and Barry Barnett co-au-thored the chapter on “Techniques for Ex-pediting and Streamlining Litigation.” As a pioneer of high-stakes litigation conducted in an efficient and collegial manner, Susman has a winning record that would put to rest any argument that efficiency and collegiality may compromise a litigant’s advantage. The chapter imparts the common wisdom rarely used in litigation: “less is best”—that mas-sive document productions often impede rather than enhance the evidence presented, and may hinder a party’s ability to surprise at trial. The authors advocate openness and cooperation to reduce the prohibitive cost and waste of litigation, sharing a “standard list of discovery” to opposing counsel, ser-vice of documents by email and on a roll-ing basis as soon as the documents become available, and even suggest allowing open file searches as long as privileges and confi-dential information are preserved.

Two Texas federal judges contributed chapters to the treatise as well. Judge Barbara M. G. Lynn wrote the chapter on “Requests for Admissions” along with David Coale. This chapter richly and methodically lays out the law on this subject, analyzing the effects of poorly timed admissions requests,

as well as the difference between substantive requests and those seeking to establish evi-dentiary matters. The chapter abounds with strategies and subtle distinctions between effective requests, often “short, clear, and suggest an obvious answer,” and requests that are ambiguous, thus lacking the desired “foreclosure” effect, even when admitted. The chapter turns the requests for admis-sions into a highly effective discovery tool, including establishing the ultimate issue in the case, to avoid expensive trial discovery.

Judge David Hittner coauthored the chap-ter on “Jury Selection” along with David Beck and Eric J.R. Nichols. The authors em-phasize the federal court’s wide discretion in (dis)allowing attorneys to conduct their own examination of the jury veneer, pointing out that two-thirds of the federal judiciary thinks that attorneys use voir dire for “inap-propriate purposes.” With that perception, the authors discuss factors that encourage federal judges to allow the attorneys’ own examination of jurors, and cite examples of cases where the court’s failure to allow the parties to ask questions eliciting potential juror bias resulted in reversal. Particularly enlightening is the authors’ discussion of the important role of diplomacy in eliciting a reticent juror’s acknowledgement of his or her bias. In the highly constrained world of federal voir dire, the authors’ wisdom on this subject may be best gleaned from a quote by Clarence Darrow that a “large part of [an attorney’s] work is sizing up judges, jurors, and witnesses at the first glance.”

The treatise’s broad jurisprudence and eminent practicality are interwoven with ethical considerations throughout. But “Ethical Issues in Commercial Litigation,” co-authored by Harry Reasoner, George Kryder and Edward Carr, specifically maps out the legal ethics maze of complex litiga-tion and ways to navigate it. Another Tex-as attorney, Blake Tartt, along with Bruce Wilkin, provides the first chapter, compre-hensively treating the authority of federal courts to hear any case in “Subject Matter Jurisdiction.”

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Business and Commercial Litigation in Fed-eral Court, Third Edition is a composite of jurisprudence and data points. For example, a footnote in chapter 55 on “Appeals to the Courts of Appeals” takes the reader to U.S. court of appeals statistics website, where the she will quickly learn that the number of private cases filed in the Fifth Circuit in 2011 was the second largest in the nation, or that the number of immigration cases in-volving alien smuggling in the Fifth Circuit in 2011 was the largest in all federal circuits, and almost twice the number of those in the Ninth Circuit.

No review, short or long, can adequately describe the contributions of these stellar practitioners or the time expended by the editor-in-chief in assembling them together. The outcome is packed equally with author-itative legal analysis and hands-on practi-cal tips, and is universally applicable to the business litigation practitioner, in state or federal court.

Jill Yaziji is is the principal of Yaziji Law Firm, a firm specializing in civil litigation. She is an associate editor of The Houston Lawyer.

Reading Law: The Interpretation of Legal Text By Justice antonin Scalia & Bryan a. Garner, thomson/West, 2012

reviewed by JeFFrey l. oldhaM

What do you expect when you see a book about interpreting legal texts that is co-written by a U.S. Supreme Court Jus-tice renowned for his inter-

pretive skills, and a lexicographer who has edited Black’s Law Dictionary and authored highly regarded books about legal writing?

An authoritative and comprehensive treatise that is likely to be a staple of many lawyers’ bookcases. And that is exactly what Justice Antonin Scalia and Bryan Garner have de-livered with Reading Law: The Interpretation of Legal Texts.

The most obvious contribution of Reading Law is its incomparable collection of prin-ciples for interpreting legal language. The book is in this sense a classic treatise: it iden-tifies and explains 37 canons of interpreta-tion applicable to all legal texts—whether a contract, a statute, or other legal text—and then does the same for 20 additional can-ons that are specific to statutory interpreta-tion. In characteristic Justice Scalia fashion, the book closes with 13 other notions that the authors believe are misguided. For each principle, Justice Scalia and Mr. Garner pro-vide an explanation and examples of proper usage—and for many canons, they offer much more. Some of these descriptions are steeped in technical grammar rules; others include discussions about originalism or other important topics. The collection is therefore not just a useful reference guide to have close by when an interpretation ques-tion arises; rather, it is an engaging treatise about the principles of interpretation and le-gal writing and theory in general. The book is a must-have for any lawyer, law student, or citizen who wants a primer on legal inter-pretation and writing.

But Reading Law is as much an argument about how to interpret legal texts as it is a catalogue of the tools for doing so. Not sur-prising to anyone familiar with the work of Justice Scalia, the book advocates textualism as the proper method for interpreting legal texts. The book’s lengthy introduction con-ceptualizes the proper role of a judge when interpreting a written text—to determine and apply the text as written according to its definite and ascertainable meaning, us-ing the proper interpretive tools—and then argues that a “fair reading” textualism is the best method for performing that role. It also rebuts criticisms of this method and some competing theories of interpretation. The

authors end the book with a lengthy section on interpretive falsities, many of which un-derscore the arguments in favor of textual-ism and against competing modes of inter-pretation.

For instance, in criticizing an alterna-tive theory of interpretation that they call “purposivism,” the authors note that this approach allows a foray into the use of legislative history (which Justice Scalia famously abhors), and they complain that “[t]he purposivist, who derives the meaning of text from purpose and not purpose from the meaning of text, is free to climb up th[e] ladder of purposes and to ‘fill in’ or change the text according to the level of general-ity he has chosen.” This sentiment returns when Justice Scalia and Mr. Garner later re-fute the “false notion that the quest in statu-tory interpretation is to do justice,” writing that “[t]he problem is that although prop-erly informed human minds may agree on what a text means, human hearts often dis-agree on what is right. That is why we vote... on what the law ought to be, but leave it to experts of interpretation called judges to de-cide what an enacted law means.”

Some of these arguments about theories of interpretation are not new to Reading Law. But as the reaction to Reading Law has already demonstrated, including the unusu-ally fierce public debate between Justice Scalia and Seventh Circuit Judge Richard Posner shortly after Judge Posner reviewed the book, this presentation of the arguments will continue to be provocative.

Reading Law should not only be read by practitioners and law students for legal purposes, but for the sake of reading a well-written, highly enjoyable text as well.

Jeffrey L. Oldham is an appellate partner at Bracewell & Giuliani LLP. Before entering private practice he clerked for Chief Justice William H. Rehnquist of the U.S. Supreme Court and for Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit. He is a member of The Houston Lawyer Editorial Board.

MediA Reviews


MIDTOWN – 3000 SMITHSublease with established law firm, partner office (20 X 12) with attached assistant office (13 X 12). Use of ame-nities, reception area, kitchen, con-ference room, free covered parking.

Call: 713-524-2400.

Galleria – Post Oak Blvd. – Class A Building. 1 or 2 Attorney offices and 1 Secretarial space with access to full amenities: reception lobby, recep-tionist, kitchen/lunchroom, library and conference room. Space shared with 6 attorneys in a prestigious firm. Furnished. Call Stephanie,

713-626-3700

Sublease Houston Downtown. Large unfurnished executive win-dow office (approx. 11’x15’). Large closet (approx. 3’x10’) in executive office with built-in storage shelves. Furnished secretarial area (approx. 4’x8’) next to executive office. Indi-vidual data and phone lines for both spaces. Includes use of receptionist services, two kitchens, and two con-ference rooms. Parking in building and nearby. Tunnel access. Call

713-615-6060.

Museum Dist/Montrose office space. Use of 3 conf rooms, kitchen. Recep-tionist to greet your clients. 22 of-fices in two remodeled homes. Rents start at $450 per month. Ask for Ma-

con Strother 713-781-0778.

HWY 59- HOUSTON (SOUTHWEST)Solo attorney subleasing one or two very nice window office spaces in large/ beautiful office building. Re-ceptionist services available. Shared

Business Firm Seeks Two Partners. Small AV-rated business firm in The Woodlands positioned for growth, seeks two self-sustaining attorneys to complement practice. Prior ex-perience in a boutique, midsized or large firm with a record of advance-ment and strong academic record required. Must be team-oriented and willing to be active in firm marketing. Open regarding practice areas, but prefer corporate, real es-tate, intellectual property, employee benefits, commercial litigation, and estate planning. Compensa-tion based on individual productiv-ity and firm referrals. Firm is also willing to consider opportunities with another firm seeking to grow or establish an office in The Wood-lands. All inquiries held in strictest

confidence. Please reply to [email protected]

AV Rated Firm Seeks Of Counsel Attorneys. AV-rated law firm in greater Houston area seeks expe-rienced, accomplished attorneys interested in a virtual of counsel ar-rangement to grow or supplement their existing practices. Firm has strong web presence and of counsel attorneys are listed on firms’ web-site. Successful candidates will have developed expertise in a particular practice area, received training at an AV-rated firm, and have a good academic record. Practice areas of interest include family law, personal injury, fiduciary litigation, corpo-rate, real estate, intellectual prop-erty, employee benefits, and com-mercial litigation. Compensation based on business referred between of counsel attorney and firm mem-bers. Firm is also interested in self-sufficient candidates who want an office with the firm. Please reply to

[email protected]

Ticket and DWI defense, traf-fic warrant removal, DPS license hearings, occupational driver’s licenses, and driver’s license issues. Robert W. Eutsler.

www.TheTicketAttorney.comTel. 713-464-6461.

large professionally decorated recep-tion area plus kitchen/conference room. $650.00. Call Sam Maida, Jr. 713-553-0195. Pictures available

upon request.

Heights/I-10 - Beautifully remodeled 2-story building just minutes from Downtown Houston now offering executive legal offices with access to conference rooms, a full-time receptionist, Wi-Fi/phone/internet included, starting as low as $700/month with short term leases avail-

able. Please call 713-861-3595.

Great office space at 1601 Wes-theimer at Mandell, minutes from downtown Houston. Rent includes shared access to two conference rooms, kitchens, internet, cable, phones with VM, all utilities, part-time receptionist. Window offices ranging from $400-$1,000 per month with no long-term com-mitment. Please call Mark Kidd at

713-968-4601 for information.

Former art gallery on Colquitt Street (near Richmond and Kirby) con-verted to law offices has one large furnished office (partner size with marble conference table and leather chairs) and one or two furnished secretarial stations available. Nu-merous amenities, including con-ference rooms, full kitchen, use of copier and postage machine, and up to three lines and voice mail on existing phone system. 12 to 28 foot ceilings. Non-smokers only. Call MaeLissa Lipman at

713-840-9600.

Experienced litigation attorney sought by firm with a focus on multi-family, landlord representa-tion. Competitive pay. Great en-vironment. Stable and repeat client base. Send confidential resume to-

[email protected].

Litigation firm with a focus on landlord representation is seek-ing experienced litigation parale-gal/ legal secretary. Competitive pay with great working environ-ment. Send confidential resume to

[email protected].

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court year, while the number of appeals from final judgments taken by tort and DTPA defendants has fallen by 6%.

What this means is that tort plaintiffs are filing outside Texas when they can, abandoning or settling weaker cases earlier, and pursuing ap-peals only when the perceived error appears to be relatively clear. Given that tort plaintiffs are “picking their battles” more carefully, one might ex-pect that they would enjoy greater success in the appeals they do bring, all else being equal. But all else is not equal. Tort reform measures are the likely reason that reversal rates have held steady, even as tort plaintiffs file fewer cases and take fewer appeals.

Jury verdicts and summary judgments: The results of tort reform can also be seen in the declining reversal rate for summary judgments and the rising reversal rate for jury verdicts.

In 2001-2002, the reversal rate for summary judgments was 33%, while the reversal rate for judgments entered on jury verdicts was 25%. The difference between the two reversal rates favored plaintiffs, because typically it is the plaintiff who appeals a summary judgment and the de-fendant who appeals a verdict.

In the years that followed, reversal rates shifted in favor of defendants. In 2010-2011, the reversal rate for jury verdicts was 34% and the rever-sal rate for summary judgments was 31%. Thus, the courts of appeals reversed jury verdicts at a higher rate than summary judgments—even though the presumptions and standards of review applicable on appeal generally run in favor of jury verdicts and against summary judgments. These findings refute the widely held supposition that courts of appeals reverse summary judgments at a higher rate than judgments entered on jury verdicts.

Conclusion: There are differing points of view about whether tort reform is sound public policy. The statistics do not take sides in that debate, but they do tell us that tort reform has had the intended effect of limiting tort recoveries.

Lynne Liberato and Kent Rutter are partners in the appellate practice group at Haynes and Boone, LLP.

endnotes1. TEX. H.R. 1249, 125 STAT. 284, 112th Cong. § 3(n)(1) (2011) (Public Law 112-29) (enacted September 16, 2011).2. Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 44 S. Tex. L. Rev. 431 (2003).3. Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 48 Hous. L. Rev. 993 (2012).

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LegAL TReNds eration of the Commercial Mortgage Backed Securities (CMBS) industry, including the securitization process of commercial loans and the du-ties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, Rating Agen-cies, Trustees, Servicers and Special Servicers. Looking for in-house position.

2066 2008 graduate of Uni-versity of Texas Law, licensed in Texas with interest in civil litigation, and especially la-bor and employment. Summa cum laude B.A. in political science from Middlebury College. Worked for Texas Supreme Court during law school. Strongest assets are analytical, research, and writing skills. Looking for permanent position or temp-to-perm opportunity.

PlaceMent PolicyThe Placement Service will assist HBA members by coordi-nating placement between attorneys and law firms. The ser-vice is available to HBA members and provides a convenient process for locating or filling positions.

1. To place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The place-ment coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most ex-pedient manner.3. In order to promote the efficiency. PleaSe notiFy the PlaceMent coordinator oF any PoSition Found or Filled.4. To reply for a position available, send a letter to Pplacement Coordinator at the Houston Bar Association, 1300 First city tower, 1001 Fannin St., houston, tx 77002 or e-mail Brooke Benefield at [email protected]. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.

PlaceMent deadlineS Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. IssueIf you need information about the Lawyer Placement Service, please contact hBa, placement coordinator, at the HBA of-fice, 713-759-1133.

5080 SEEKIng ASSOCIATE LEGAL COUNSEL for Hous-ton public pension fund. Ap-prox. 4 years’ experience with retirement plans, employee benefits, administrative law, institutional investing or Texas local government law required. Background checks and drug testing. EOE.

5094 ESTATE plAnnIng – pROBATE ATTORnEY. SUGAR LAND. Board certi-fied attorney, 33 year Houston area practice serving Harris/Fort Bend counties, seeking associate attorney with ad-vanced estate planning and probate experience.

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