Category Archives: Texas Law

Shake Shake Shake – Shake Your Booty – But not During Mediation

Chief U.S. District Judge Lee Rosenthal  of the Southern District of Texas expressly rued having to use the term “butt shaking” in an  opinion arising out of alleged attorney misconduct.  The Judge was writing in response to a motion to sanction  former BakerHostetler attorney Dennis Duffy for shaking his groovy thing  and insinuating that opposing counsel was gay because he has a ponytail during  a mediation in which Duffy represented his client Chevron Phillips Chemical Co. in an employment discrimination case.  The Judge called the behavior “clearly outside professional bounds,” but determined that sanctioning Duffy was not needed.

“One of the sentences a judge does not imagine — much less welcome — writing includes the words ‘butt shaking’ in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.

Duffy’s professional reputation, and the closely related ability to attract new business, will no doubt suffer, and they should.”

Duffy did suffer consequences as he was forced to withdraw from the case and is no longer employed by BakerHostetler.

In the interest of full disclosure, Red had some past interactions with Duffy when he was General Counsel for a prominent Texas university located in a large city.  In his humble opinion, Red found Duffy to be pompous and insufferable but he never got to see Duffy engage in  some righteous butt shaking – an opportunity missed.


The GOP Solution to Gun Violence – More Guns

Our Poor Idiot Governor Gregg Abbott signed some new guns laws this week.  Texas gun lovers will be glad to know a few new things they can do with their favorite toys:

  1. For a full week after a natural disaster strikes, you can now openly or sneakily carry a handgun.  Before you could only tote around your rifle, shotgun or Chinese made A-47 (When you absolutely, positively got to kill every motherf#(ker in the room – with apologies to Q. Tarentino).  Red supposes this is supposed to allow folks to protect their property from looters.  So great idea here – have a bunch of tired, upset and totally stressed out people who are grieving over the possible loss of family, friends and stuff armed and dangerous and licensed to kill.  What could possibly go wrong?
  2. Landlords can no longer ban guns in their apartment complexes.  Red was once sitting in his friend’s apartment when the gun nuts next door accidentally discharged a .44 through the wall right next to where Red was sitting.  They came running around in a panic with the exclamation, “We f#(ked up, man!” To which Red replied, “No shit!” Apartment walls will not stop a bullet.  The stray one that very nearly took out young Red went through 3 walls.  Brilliant legislating here.
  3. Places of worship will now have to post the standard (and overly complicated) notice to ban guns from their premises.  Red for one can’t wait to attend services at the Holy Ghost House of Prayer and Rifle Range.   Our Father (Bam!), who art in Heaven (Bang!), hallowed be thy Glock (K-zing). Thy Smith&Wesson come (Boom!). Thy will be done on Earth as it is in the holy rifle range (Ackackackackack!).  Give us this day our daily round of ammo (armor piercing please), and forgive us our missed targets (Zing!) as we forgive those who don’t load properly, and lead us not into poor marksmanship (Kboom), but deliver us from Commie gun haters (Bam, Bam!).

Representative Democracy Under Fire

The Texas Election Law Blog  examines the possible destructive effect on American democracy should the Supreme Court rule in favor of the petitioners in Evenwel v. Abbott.

The plaintiff argues that Texas should not base state redistricting on the distribution of its population, but rather on the distribution of its voters. The motivation for the case is to strip power from urban areas in favor of the rural conservatives.

Central to the conservative argument is that apportionment of representation by population size “dilutes” the power afforded to voters by distributing representation based on both the voting population and all the other people (kids, foreigners, prisoners, non-voters) who happen to live in a state House or Senate district.

In other words, the plaintiff believes that government representatives do not serve all the people in their district. The plaintiff believes that government representatives serve only the people who vote, and everyone else can suck eggs.

The potential impact of this case dwarfs the recent decisions upholding the Affordable Care Act and legalizing same-sex marriage.  While those cases have sex-appeal to the general public, a case about apportionment of legislative seats must seem dull in contrast.  But, if the Supreme Court bites on the argument that only voters should count for apportionment purposes, there will be a fundamental shift in political power that will make the Republicans current gerrymandering of their way into entrenched legislative power seem like weak tea indeed.  There would be a massive shift of representation away from urban populations to rural areas and older white voters would exert an even more outsized influence on the body politic.  This could cement extreme right-wing control of state and federal legislative bodies for another 40 or 50 years.


Birthright Citizenship Under Fire in Texas

The Texas Observer reports that undocumented parents are increasingly unable to obtain birth certificates for their children born in the U.S.

For nearly 150 years, the United States, under the 14th Amendment, has recognized people born here as citizens, regardless of whether their parents were citizens.

But Texas has other plans. In the last year, the state has refused to issue birth certificates to children who were born in Texas to undocumented parents. In May, four women filed a civil rights lawsuit against the Texas Department of State Health Services alleging constitutional discrimination and interference in the federal government’s authority over immigration.

Jennifer Harbury, a lawyer with Texas RioGrande Legal Aid, who is representing the women, said the deluge of birth certificate refusals began last winter. “I’ve never seen such a large number of women with this problem,” she says. “In the past someone might be turned away, but it was always resolved. This is something altogether new.”

Texas County Clerks Violating Their Oath of Office

Off the Kuff does an excellent job of reporting on Texas County Clerks that are violating their oath of office by not issuing marriage licenses to same-sex couples – so Red doesn’t have to.  The latest is Hood County’s Katie Lang who apparently came up with a number of bogus excuses to deny a gay couple a marriage license and then had the temerity to call in Sheriff’s deputies to harass people who were attempting to exercise their constitutional rights.  It took filing a federal lawsuit to get Lang to follow the law.

Lang who sports one of the more bizarre personal biography websites for a County Clerk appears to be a Tea Party stalwart playing to her base in boldface type.  Her webpage proudly touts her extensive experience as an “award winning video producer/director with over 28 years in the film industry.”  It goes on to talk about her “high personal standards” and lists numerous awards she has received for her commercials for the now-defunct Tandy (Radio Shack) Corp.  At the end of the biography – again in bold print – Lang proudly touts:


Unless of course, those citizens happen to be gay.

Texas Will Put its Name on Anything?

This image provided by the Texas Department of Motor Vehicles shows the design of a proposed Sons of Confederate Veterans license plate.  The Supreme ...

The U.S. Supreme Court heard oral argument yesterday in Walker v. Sons of Confederate Veterans yesterday.  At issue is whether the First Amendment requires Texas to issue specialty license plates sporting the Confederate Battle Flag.  The case does present interesting free speech questions.  Does a state have the right to control the message that is placed on its license plates?  Or does the free speech right of its citizens trump the state’s right to control a message with its seeming imprimatur.

The oral argument was heated.  The lawyer for the Confederate enthusiasts R. James George, Jr. was more or less backed into a corner when asked where the line on license plate messaging could be drawn.  But the justices seemed uncomfortable with arguments advanced by both sides.

Justice Ginsberg asked a series of questions asking what else would be permitted If the court finds the state must sanction the Confederate flag on license plates.  Ginsberg asked would Texas be forced to allow plates with a “swastika,” the word “jihad,” and a call to make marijuana legal?

 George bravely answered “Yes.” to each more offensive hypothetical.

“That’s okay? And ‘Bong hits for Jesus?'” Ginsburg asked, reaching back to an earlier case involving students’ speech rights.

George failed to waiver even when Justice Elena Kagan added in “the most offensive racial epithet you can imagine.”

George responded that “speech that we hate is something that we should be proud of protecting.”

Justice Anthony Kennedy argued that a ruling in favor of the SCV’s would probably be the end of the state’s program of allowing many specialized license plates. “If you prevail, it’s going to prevent a lot of Texans from conveying a message.”

Chief Justice John Roberts and Justice Samuel Alito said the sheer number of messages and their wide range show that the state’s only interest is financial.

“They’re only doing this to get the money,” Roberts said. “Texas will put its name on anything.”

In the interest of full disclosure, Red acknowledges that he is the great-great grandson of at least one Confederate veteran.  Red does not subscribe to the fantasy promoted by the Sons of the Confederate Veterans that the “Noble Cause” was about something other than preservation of a way of life built on the enslavement of other human beings.

Same-Sex Marriage in Texas – Legal or Not?

On Tuesday, Travis County Probate Court Judge Guy Herman held Texas’ ban on same-sex marriage was unconstitutional.  The ruling came as part of an estate fight in which Sonemaly Phrasavath sought a finding that she had a common-law marriage to the late Stella Powell.

Phrasavath and Powell had been living together since 2007 and were “married” in 2008 in a ceremony performed by a Zen priest in Driftwood.  The ritual marriage was not valid under Texas law. A Travis County probate court became involved after Powell died intestate last summer.  This led to probate dispute over her estate between Phrasavath and Powell’s siblings. Herman found merit to Phrasavath’s claim of common-law marriage and consequently ruled that the Texas ban on same sex marriage was unconstitutional.

The Austin American-Statesman reports that Herman’s ruling is not immediately changing the rules for other same-sex couples who want to be married in Texas.  County officials who are considering the impact of Herman’s order have not begun issuing marriage licenses to same-sex couples.

Travis County Clerk Dana DeBeauvoir, who praised Herman for his ruling, said she will confer with county lawyers to determine her options. “I am scrambling, trying to find out if there is anything I can do. Right now, I think it’s no, but we are checking,” said DeBeauvoir, who in the past has said that she was ready to begin distributing marriage licenses to same-sex couples as soon as allowed by the courts.

What is clear is that Texas Attorney General Ken Paxton will not be able to challenge Herman’s ruling on appeal.  Texas litigants are required to notify the AG’s office in any case in which the constitutionality of a statute is challenged in order to allow the state to intervene to defend the statute.  Paxton’s office declined to do so and cannot now challenge Herman’s ruling.  Powell’s siblings have not indicated whether they plan to appeal.