"Counting the Clerks": The Legal Times has a very interesting article on diversity among law clerks at the United States Supreme Court. You can read the article here.

News from the Brownsville Capital Murder Trial: "An expert in 'brujeria' testified today that there was no evidence the Mexican form of witchcraft was being practiced in the squalid apartment where a South Texas man is accused of killing and decapitating three small children." The Chronicle has the rest of the story here.

LULAC Joins Redistricting Fight: "The League of United Latin American Citizens today sued the state over redistricting, claiming that the newly adopted congressional districts violate voting rights of the state's Latino population." The Chronicle has the rest of the story.

News from the MCI Bankruptcy Case: The AP reports here that "[t]he judge overseeing MCI's bankruptcy approved the company's plan to emerge from the biggest bankruptcy in U.S. history, a financial reorganization that will pay back most creditors 36 cents on the dollar and erase $35 billion of debt."

Dan Morales Sentenced: The Statesman reports here that "[f]ormer Texas Attorney General Dan Morales was led away to federal prison in handcuffs this afternoon after receiving a four-year sentence for mail fraud and filing false tax returns. Morales also was ordered to pay more than $330,000 in restitution and fines."

5th Circuit Opinion: The Fifth Circuit released its opinion in United States v. Peters today in which it concluded that the judge's ex parte communications with the jury foreperson was reversible error. The opinion can be accessed here.

3 Proposed Changes to the TRCP: The State Bar of Texas has posted the proposed rule changes to the Texas Rules of Civil Procedure.

It's part of Texas history?: "Some mementos from the Texas Democrats' May trip to Ardmore, Okla., which temporarily halted a Republican-backed congressional redistricting measure, have gone to the highest bidders. An auction Thursday night by the Heart of Texas Democratic Forum, a Waco political action committee, featured various items from the Democratic lawmakers' four-day stay at the Ardmore Holiday Inn. Democratic state Reps. Jim Dunnam and John Mabry of Waco attended the auction. Attracting the most interest was a laser copy of the House Journal for May 12, the first day of the walkout. The copy was signed by all the Democrats and sold for $500 to Waco resident John Wood." The AP has the rest of the story here.

Sparks: Austin Can't Shut Down Pipelines "A federal judge has ruled that Austin cannot shut down pipelines when the operators do not meet insurance requirements. U.S. District Judge Sam Sparks said the city may not enforce an ordinance requiring pipeline operators to have at least $90 million in general liability and environmental impairment insurance to transmit hazardous liquids within city limits." The AP has the rest of the story here.

The Statesman reports here "[a] federal judge struck down part of the City of Austin's pipeline ordinance Thursday, saying that strictly read, the law claims the city can shut down pipelines if insurance requirements aren't met, a power not available to municipal governments."

Texas AG Opposes Medicaid Rule: The San Antonio Business Journal reports here that "Texas Attorney General Greg Abbott joined 45 other state attorneys general in opposing a federal Medicaid rebate rule that would allow prescription drug companies to destroy drug pricing information and reporting practices after three years." Here is the OAG Press Release.

Dan Morales To Be Sentenced: The AP reports here that "[f]ormer Texas Attorney General Dan Morales, who pleaded guilty in July to mail fraud and filing a false income tax return, was scheduled to return to the courtroom Friday for formal sentencing. Under terms of the plea agreement reached with federal prosecutors, Morales was to be sentenced to a four-year prison term."

Public Notice for Reappointment of Magistrate Judges: The United States District Court for the Western District of Texas has posted this public notice for the reappointment of United States Magistrate Judge Michael S. McDonald whose term will expire on June 7, 2004 and this public notice for the reappointment of United States Magistrate Judge John W. Primomo whose term will expire on July 17, 2004.

New Federal District Court Fees: The United States District Court for the Southern District of Texas has posted its new fee schedule here. The Northern District of Texas has posted its new fee schedule here. The new fees take effect November 1, 2003.

Texas Supreme Court Opinions: The Texas Supreme Court released two opinions today. The first, Southern Union v. City of Edinburg, concerned "whether gas purchased by consumers within the City from companies affiliated with RGVG and Southern Union is subject to the 4% franchise tax under Ordinance No. 1129 based on a theory of "a single business enterprise." The Court held that it is not. The second, Naaman v. Grider, involved the timely perfection of an appeal.

Texas Supreme Court Orders: The Texas Supreme Court has released its weekly orders here.

November Hearing List: The United States Supreme Court's November hearing list is available here. The Court will hear two cases on Monday: Kontrick v. Ryan and Maryland v. Pringle. On Tuesday, the Court will also hear two cases: Groh v. Ramirez and SEC v. Edwards.

"'Subsequent Good Act' by Employer Admissible": The Legal Intelligencer reports here that "[i]n an age discrimination suit, the defendant company may present evidence that it hired another older worker more than a year after the plaintiff was fired because such evidence is relevant to the issue of the employer's alleged discriminatory intent, the 3rd U.S. Circuit Court of Appeals has ruled. In Ansell v. Green Acres Contracting Co., a unanimous three-judge panel found that trial judges have the discretion under Federal Rule of Evidence 404(b) to allow such evidence of a 'subsequent good act.'"

"9/11 Case Before High Court": Findlaw.com has an article that begins: "It's the case that doesn't exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period. Yet this seemingly phantom case does exist - and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?" The full article is available here.

Indictment of David W. Delainey: Here is the formerly sealed indictment of David W. Delainey, the former CFO of Enron who plead guilty to insider trading.

Florida's Right-to-Die Case: If you are following the right-to-die case of Terri Schiavo, here is the the brief filed yesterday in the Circuit Court for Pinellas County.

In the Spirt of Halloween: The Caller Times reports here on the ghosts of the Nueces County Courthouse.

Austin's Smoking Ban Repealed: "The Austin City Council on Thursday repealed a 5-month-old smoking ban that never went into effect, passing a revised ordinance that will allow smoking in restaurants and bars to continue." The Statesman has this story.

Worries Over Voting Machines: The AP reports here on the worries over the "trustworthiness of electronic voting machines."

Redistricting Trial Date Chosen: The Houston Chronicle reports that "[a] federal judge Thursday designated the week of Dec. 8 as the likely starting date for a combined trial of lawsuits challenging the state's new congressional redistricting plan. Several lawsuits, including one filed by Texas Democrats and another filed by the Mexican American Legal Defense and Educational Fund, have been consolidated into one case."

Brownsville Capital Murder Trial News: "Dirty baby bottles and a deflated birthday balloon shared cramped quarters with used condoms and porn magazines in the eerily untouched crime scene jurors toured Thursday in the capital murder trial of a man accused of killing and beheading three small children. The defense for John Allen Rubio, the 23-year-old who confessed to trying to kill evil spirits out of the children, requested the 20-minute tour." The Chronicle has the rest of the story here.

Carlton Dotson Awaits Trial: The Houston Chronicle reports here that "Former Baylor basketball player Carlton Dotson, accused of killing ex-teammate Patrick Dennehy, said Thursday 'a lot of lies' have been said about the case but the truth will come out during his trial."

Latest from the Durst Murder Trial: The Chronicle has this story on the final day of testimony in the guilt/innocence phase of Robert Durst's murder trial.

HPD Crime Lab News: The Houston Chronicle reports here that "[t]his week's shutdown at the Houston crime lab could have an impact far beyond the division involved, a prosecutor said Thursday, voicing fears that the latest crisis will make the lab's problems with DNA testing "look like a cakewalk."

"One day after the Houston Police Department shuttered its toxicology division, Assistant District Attorney Marie Munier said her office is bracing for the possibility that the lab's newest problems could affect thousands of cases. Prosecutors are set to launch a review of Pauline Louie's work as supervisor and lone analyst of the toxicology division, but Munier noted that Louie also supervised the enormous narcotics division."

"Ex-Enron executive agrees to pay $8 million for insider trading": The Chronicle reports here that "[f]ormer Enron executive David Delainey, a close business associate of former CEO Jeff Skilling, pleaded guilty today to one count of insider trading and agreed to cooperate in the government's Enron investigations. Delainey agreed to pay the government $4.2 million, and he also entered into an agreement with the Securities and Exchange Commission to hand over an additional $3.7 million. As part of that deal, he has agreed not to serve as an officer or director of any traded company."

"Lawyers rest in Durst case as photos ignite furor": The Houston Chronicle reports here that "[e]ven as lawyers from both sides rested their cases in the murder trial of millionaire Robert Durst today, an angry judge launched an investigation into how Houston television station KHOU obtained hundreds of photos gathered as evidence by Galveston police."

"Plastic Gun Blamed in Capitol Shutdown": The AP reports here that "[t]he House of Representatives was ordered shut down Thursday following reports of a security breach at a congressional office building nearby, but police swiftly determined that a Halloween costume and plastic revolver were to blame."

"Report says Supreme Court favors business over consumers": The AP reports here that "[t]he Texas Supreme Court routinely favored business over consumers in deciding cases over the last year, according to a watchdog group's annual report released Thursday. Court Watch, produced by the statewide consumer research group Texas Watch Foundation, reviewed all 82 cases decided by the state's highest civil court during its 2002-2003 term. It classified 47 as consumer cases."

OAG Requests for Opinions: The Office of the Attorney General has posted three requests for opinions.

"RQ-0118-GA - Questions regarding the implementation of sections 1602.253 and 1602.267 of the Occupations Code, as amended by House Bill 653, 78th Legs., R.S." View the request here.

"RQ-0119-GA - Whether the El Paso Ad-hoc Committee of the IH-10 Incident Management Plan is immune from civil liability under section 79.003 of the Civil Practice and Remedies Code as recently amended." Access the request here.

"RQ-0120-GA - Whether the common-law doctrine of incompatibility prevents a city council member from also serving on the board of a tax increment reinvestment zone
board created under chapter 311, Texas Tax Code." Access this request here.

Breaking News: The Star-Telegram reports here that "[t]he House recessed Thursday after police closed down its nearby Cannon office building when an armed man ran through a police security checkpoint."

"Investigation launched into photos from Durst trial": The Houston Chronicle reports here that "Judge Susan Criss launched an investigation today into how Houston television station KHOU obtained hundreds of photos taken by Galveston police for the murder trial of millionaire Robert Durst. The photos range from the gruesome to the mundane, from the beach where the body parts of Durst's neighbor washed ashore to a snapshot of Durst as a Cub Scout with his dog."

"Ex-Enron executive pleads not guilty but plans to cooperate": The Chronicle reports here that "[f]ormer Enron executive David Delainey, a close business associate of former CEO Jeff Skilling, pleaded not guilty to insider trading early this morning in a Houston federal court but is expected to enter a guilty plea to the same charge and cooperate with prosecutors."

5th Circuit Opinion: Today, the United States Court of Appeals for the 5th Circuit released its opinion in United States v. Conley. Conley argued that he received ineffective assistance from both his trial and appellate counsel and that he received a greater sentence than the maximum set for his crime. The 5th Circuit agreed and reversed and remanded for a new sentencing hearing.

"State drafting toll road guidelines": The Austin American Statesman reports here that "[t]he Texas Department of Transportation declined Wednesday to release a copy of proposed rules on converting free state highways to toll roads, rules to which the three-member commission governing the department could give preliminary approval later today. The department, citing a provision in the Texas Public Information Law that exempts some memorandums and letters from disclosure, contends that the proposed rules will not become an open record until after commissioners vote on them and thus trigger a public comment period."

Illinois v. Lidster: The SCOTUSblog has this summary of the 4th Amendment suspicionless roadblock case set to be argued Wednesday at the United States Supreme Court.

Texas Lawyer's Special Report: "U.S. District Judge George P. Kazen, the grandson of immigrants, now presides over an ever-growing number of immigration cases as chief judge of the Southern District of Texas. Also: 'Webb County by the Numbers,' 'I Like Practicing in Laredo Because . . . ,' and 'Surveying Laredo Lawyers.'" The special report is available here.

CCA's Hand Down List: Here is yesterday's hand down list from the Texas Court of Criminal Appeals.

"Mayor Wynn defends smoking ban revision": The Austin Business Jouranl reports here that "Austin Mayor Will Wynn says he'd like to see the revised smoking ban ordinance pushed through the Austin City Council Thursday with all three required readings and votes taken at that time." Here is this morning's post from the Statesman.

"Judge Weighs Venue Change in Enron Case": The AP reports here that "[a] judge did not immediately rule on the request to move the trial of the wife of former Enron Corp. finance chief Andrew Fastow out of Houston. U.S. District Judge David Hittner, who initially recused himself from Enron-related cases along with several other federal judges in Houston because he had invested in the bankrupt company, said he would rule soon on Lea Fastow's bid for a change of venue for her Feb. 10 trial."

"Judge Tosses Eight Stock Bubble Lawsuits'": The AP reports here that "[a] federal judge tossed out eight lawsuits Wednesday that sought to hold Merrill Lynch & Co. responsible for investor losses during the Internet stock bubble. 'The burst of the bubble and the attendant market chaos are not chargeable' to the banking giant, U.S. District Judge Milton Pollack wrote in a 16-page opinion. Pollack is overseeing dozens of lawsuits on behalf of investors who claim misleading reports by Merrill analysts led to grossly inflated stock prices during the late 1990s."

"House Decides Against Immigrant Program": The AP reports here that "House members chose not to expand a nationwide pilot project that lets employers check immigrants' identification numbers and ensure they are not in the United States illegally. Democrats argued that the program could become an invasion of privacy for Americans."

Brownsville Capital Murder Trial News: "John Allen Rubio exhibits symptoms of paranoid schizophrenia and by legal definition was insane when he killed his three small children in March, a psychiatrist testified Wednesday. 'Furthermore, it is my opinion that he has suffered from this condition for most of his life,' said Dr. William Mark Valverde, who has visited with Rubio over the past six months." The Express-News has the rest of the story.

"Bush in S.A. today for campaign event": The S.A. Express-News reports here that "President Bush plans to complete a two-state fund-raising swing with an event this evening at the Marriott Rivercenter. Heading into an election year, the president is expected to add to his growing war chest, which now totals about $84 million."

Recall Fever?: Haltom City "Residents are circulating petitions to recall the five City Council members who voted to fire City Manager Richard Torres this month." The Fort Worth Star-Telegram has the rest of the story here

Texas Republican Party: "Texas Republican leaders are debating the candidacies of two women -- both attorneys and conservative activists -- for state GOP chair. Tina Benkiser, a member of the State Republican Executive Committee from Houston, and Gina Parker, a former treasurer of the state party from Waco, are vying to succeed former state Chairwoman Susan Weddington, who recently resigned after guiding the party for six years." The Chronicle has the rest of this story.

Conroe Capital Murder Trial News: The Chronicle reports here that "[a] Montgomery County jury Wednesday turned to the sentencing phase of the capital murder trial of Jason Burkett after finding him guilty in the 2001 shotgun slayings of three people as part of a plot to steal their cars."

Sporkin Takes Exception to Judge Hughes' Opinion: The Houston Chronicle reports that "[a] former federal attorney criticized by a Houston judge in a scathing opinion overturning the conviction of CIA agent Edwin Wilson denied Wednesday that government officials knowingly presented false evidence in the 20-year-old case. Retired U.S. District Judge Stanley Sporkin, who was CIA general counsel at the time of Wilson's trial, said he also took exception to the tone of the ruling by U.S. District Judge Lynn Hughes. Hughes overturned Wilson's 1983 conviction on Monday, saying that Sporkin and other officials, including two who also later rose to become federal judges, had been complicit in the use of false evidence. The evidence at issue was a CIA affidavit that stated Wilson had no contact with the agency at the time he claimed to be acting at its direction, after 1971." Reuters has this related report.

HPD "Homicide Detective Shot to Death in Office": The Houston Chronicle reports here on the shooting death of "28-year Houston Police Department veteran Larry Boyd Smith."

More Problems for Houston's Crime Lab: The Statesman reports here that "[t]he Houston Police Department Wednesday closed the toxicology section of its troubled crime lab after the technician there failed a competency test." The Chronicle reports here that "[t]he Houston Police Department closed a second division of its troubled crime lab Wednesday, less than a year after DNA testing was suspended amid questions about the accuracy of work to prosecute criminal cases."

Austin "May Snuff Out Ban on Smoking": The Statesman reports here that "[s]mokers in Austin can take a deep breath and relax. Six months after voting to ban smoking in the city's bars, nightclubs and restaurants, a revamped City Council appears poised to reaffirm smokers' rights to light up at a concert or after a nice meal."

"GOP Hands Strayhorn More Ammo": The Austin American Statesman has this article on the latest battle bettwen Gov. Perry and Comptroller Strayhorn.

Texas Court of Criminal Appeals: The CCA did not release any opinions or orders today. The Court is scheduled to hear oral arguments next Wednesday.

Jack Skeen Appointed District Judge: The AP reports here that "Jack Skeen Jr., the Smith County district attorney who prosecuted high-profile defendants such as former death row inmate Kerry Max Cook and juvenile killer Napoleon Beazley, on Tuesday was appointed judge of the 241st Judicial District Court. Gov. Rick Perry appointed Skeen to serve until the 2004 general election, when he can opt to run for a full term."

"Sex offenders required to turn porch lights out": The AP reports here that "[a]uthorities in three West Texas counties have strict orders for sex offenders this Halloween: Go home, turn out your lights, close your blinds and don't answer your door. Officials in Lubbock, Potter and Tom Green counties on Friday are requiring convicted sex offenders on probation whose victims were children to be home by 6 p.m., and officers will check on the 100 or so men and women throughout the evening."

March 2004 Primary: The AP reports here that "[a]lthough it's months away, county clerks and election officials across Texas are scrambling to get ready for the March 2004 primary now that lawmakers have finally approved a congressional redistricting map."

Dotson's Lawyers Appointed: The Houston Chronicle reports here that "Waco attorneys Russ Hunt and Abel Reyna were appointed to represent Carlton Dotson on Wednesday during his first court appearance in Texas, the day after he was extradited from his home state of Maryland."

Durst Murder Trial Update: The Houston Chronicle reports here on today's testimony from a Galveston social worker that she received a death threat from Durst.

Dell's General Counsel Stepping Down: Thomas Green, Dell's general counsel since 1994, has decided to leave the company.

United States Supreme Court Order: Today, the United States Supreme Court denied an application for a stay of execution in Smith v. Missouri.

5th Circuit Breach of Contract Opinion: Today, the 5th Circuit released its opinion in Reliant Energy Services v. Enron Canada. The panel majority concluded that the terms of the Master Netting, Setoff, and Security Agreement are ambiguous and therefore vacated and remanded. Judge Stewart dissented. The Court's opinion is available here.

Enron CFO Trial News: U.S. District Judge David Hittner will rule on a motion to change venue soon. The Houston Chronicle has this article on the former CFO's upcomming trial. Jury selection is scheduled for February 10th.

Beyond a Reasonable Doubt: In 1993, the Honorable Jon O. Newman, then Chief Judge of the United States Court of Appeals for the Second Circuit, wrote Beyond "Reasonable Doubt", the foundation for a James Madison Lecture on Constitutional Law. I had occassion to read this article the other day. The article calls for appellate judges to take "beyond a reasonable doubt" more seriously and has an excellent discussion of BRD and sufficiency review. It has been ten years since this article was published and it remains as timely now as it was then. Here is the cite: Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U. L. Rev. 979 (1993).

Texas S.Ct. Orders: The Texas Supreme Court denied an emergency motion to stay the trial court proceedings in In re Spiegel yesterday. The petition for writ of mandamus is still pending before the Court.

Fair Defense Act Post-Implementation Study: "Only two of the state's largest counties [Lubbock and Brazoria] are fully complying with laws designed to make sure capital murder defendants get good lawyers, increasing the likelihood that innocent people will go to death row, according to a study released Tuesday by two nonprofit criminal justice groups." The Statesman has the rest of the story on the lack of compliance with the Fair Defense Act here.

Texas Worforce Commission Approves New Rules: "The new rules redefine what the state considers 'work' for welfare recipients. They are designed to eliminate behaviors that keep people from getting jobs, the commissioners said Tuesday." The Statesman has the rest of the story here. The proposed rules are here and the agenda from yesterday's meeting is here.

Williamson County Sheriff Asked to Resign: The Austin American Statesman reports here that "[i]n a symbolic but critical move, Williamson County Republican precinct leaders voted Tuesday night to ask Sheriff John Maspero to resign." Sheriff John Maspero is up for re-election in 2004 and was recently stopped by Georgetown police after residents reported a staggering drunk relieving himself along Williams Drive.

Texas Lawyer's Special Report on School Law: The Texas Lawyer has a "special report on school law explor[ing] the 5th Circuit's reluctance to either explicitly adopt or reject the state-created danger theory of liability, which has resulted in uncertainty in this area of the law. Other topics include: the effect of tort reform on schools, efforts to change school district boundaries, and the issue of homosexuals teaching kindergarten." Access this special report here.

5th Circuit Releases 4th Amendment Case: The United States Court of Appeals for the Fifth Circuit released its opinion in United States v. Reyes yesterday. The issue before the panel (Emilio Garza, Dennis and District Judge Duplantier) was whether a non-contact dog sniff constitutes a search within the meaning of the Fourth Amendment. A U.S. Border Patrol Agent searched the cargo compartment of a bus with his dog. When the agent passed the open door of the bus, the dog alerted. The agent had the bus driver ask the passengers to exit the bus. The agent and his dog were 4-5 feet from the passengers as they exited. When Reyes and his companion exited, the dog alerted. Reyes had a bundle of cocaine taped to his back. The Court held that the canine sniff was not a search "[b]ecause the dog was not in close proximity to the defendant at the time he alerted...[and] the sniff was unintentional." Read the Court's opinon here.

"Locke Liddell Hires Perry's Lawyer": The Austin Business Journal reports here that Governor Perry's General Counsel, Bill Jones, is joining Locke Liddell & Sapp's Austin office.

Today's Oral Arguments at the Texas Supreme Court: For a brief look at the issues the Court will be considering at today's oral arguments, click here.

Social Security Benefits for Migrants: The El Paso Times reports here that "[a] Social Security Administration spokesman in Washington, D.C., said U.S. and Mexican officials are continuing 'informal discussions' to allow millions of Mexicans working in the United States to collect U.S. Social Security benefits in Mexico after as little as 18 months in the United States, instead of the current 10 years."

DNA Links Man to Capital Murders: The Star-Telegram reports here that "[a] Houston tow-truck driver remained jailed without bail Tuesday on four counts of capital murder after newly analyzed DNA evidence from an 11-year-old strangulation linked him to four slayings committed over 17 years." Anthony Allen Stone has confessed to the murders.

Redistricting News: The Star-Telegram reports here that "Texas Democrats will meet with Justice Department officials over the next three days to make their case that the state's new congressional redistricting map diminishes minority representation and should not be approved under the Voting Rights Act."

Capelo's Lawyers ask Judge Watts to Recuse Herself: The Corpus Christi Caller Times reports here that "[l]awyers for state Rep. Jaime Capelo and attorney Rene Rodriguez asked District Court Judge Sandra Watts Tuesday to remove herself from a case involving both men. Rodriguez's lawyer, Steve McConnico, questioned Watts's impartiality, personal bias and prejudice in his motion to recuse Watts. McConnico also wrote in the motion that he would likely call Watts' son, Mikal Watts, as a witness, creating a conflict for Sandra Watts. ... In the motion, McConnico wrote, 'Judge Watts has a close personal relationship with the defendants, Tony Canales, and his family. In fact, Judge Watts has admitted that her relationship with the Canales family will make it extremely difficult for her to remain impartial in this case.'" This case stems from a 1997 Citgo refinery explosion.

"Attorneys' pay faulted in death penalty cases": The Houston Chronicle has the story here.

The Scooter Store's Fraud Investigation: The Houston Chronicle reports here "[t]he FBI has interviewed two dozen employees of the Scooter Store of New Braunfels, the nation's largest supplier of motorized wheelchairs to Medicare, as part of a fraud investigation, company and bureau officials confirmed."

Ex-CIA Officer's Conviction Thrown Out: The AP reports here that "[t]he Texas conviction of a former CIA officer imprisoned for two decades for selling high explosives to Libya has been thrown out by a federal judge who ruled that the government knowingly used false evidence against him after continuing to enlist him for intelligence gathering - even while it began investigating the career operative." The Houston Chronicle reports on the story here.

Brownsville Capital Murder Trial News: The S.A. Express-News reports here that "[c]ourt proceedings were cut short Tuesday in the capital murder trial of John Allen Rubio, charged in the grisly killing of his three children, so that Rubio could visit a psychologist that his lawyers will call as a witness."

Durst Murder Trial News: The Statesman reports here on Durst's last day on the witness stand. The Fort Worth Star Telegram reports here that "[p]rosecutors suggested Tuesday that New York real estate heir Robert Durst killed his 71-year-old neighbor because he wanted to steal the man's identity."

Latest From Durst Murder Trial: The AP has the latest on New York millionaire Robert Durst's murder trial here. "New York millionaire Robert Durst had a motive to kill his 71-year-old neighbor, prosecutors suggested Tuesday as questioning of the cross-dressing real estate heir wrapped up: Durst wanted to steal Morris Black's identity."

McFarland Murder Trial Set to Begin: "Controversial audiotapes and dozens of other pieces of evidence that prosecutors say link Richard McFarland to the slaying of his wife will be allowed in the upcoming trial, a judge ruled Monday. District Court Judge Sid Harle on Monday faxed his one-page decision to prosecutors and the defense. McFarland's trial is scheduled to begin Feb. 4 in Austin after Harle last week set the date and agreed to a change of venue after defense attorneys complained about the intense media scrutiny the case has received." The S.A. Express-News has the rest of the story here.

Dotson Back in Texas: "Former Baylor University basketball player Carlton Dotson was being transported back to Texas today, three months after he was arrested in Maryland in the shooting death of a former teammate, an official said." The Houston Chronicle has the rest of the story here.

Oral Argument Transcripts: The United States Supreme Court has posted oral argument transcripts for the October 7-15 argument session.

"White House staffer's credentials stolen in Waco": "A White House staffer's purse containing security credentials was stolen from a car in Waco, police said." The AP has the rest of the story here.

5th Circuit Environmental Law Opinion: Today the 5th Circuit denied a petition for direct review and upheld the EPA's action approving the Houston SIP. The EPA approved "(1) the State of Texas's one-hour ozone attainment demonstration state implementation plan ("SIP") for the Houston-Galveston severe ozone nonattainment area, and (2) the state's control strategy (collectively referred to as the 'Houston Sip')." The opinion is available here.

Texas Supreme Court Submission Schedule: The Texas Supreme Court will hear oral arguments in three cases tomorrow. The Court's submission schedule is available here.

Moore v. Greer: At issue in Moore is the interpretation of a "cover all" clause in a royalty deed. The briefs are available here.

Storage & Processors, Inc. v. Reyes: At issue in Reyes is the applicability of the express negligence doctrine to a waiver of worker's liability. The briefs are available here.

FFE Transportation Services v. Fulgham: At issue in Fulgham is whether a trucking company released a product (its trailer) into the "stream of commerce." The briefs are available here.

Texas' "Top 10 Super Lawyers": Texas Super Lawyers 2003 has named the following 10 lawyers Texas' Top 10 Super Lawyers: David J. Beck, Michael M. Boone, George Wlater Bramblett, Jr., James E. Coleman, Jr., Rusty Hardin, Barry Frank McNeil, Richard W. Mithoff, Robert H. Mow, Jr., Stephen D. Susman, and Mark S. Werbner.

Monday's United States Supreme Court Oral Argument Overview: Last night I posted here summaries of Monday's two oral arguments.

"Ex-doctor charged in death of patient": "A former Fort Worth physician was indicted Monday on a murder charge stemming from allegations that she suffocated a patient in 2000 by blocking the woman's breathing tube." The Fort Worth Star Telegram has the rest of the story here.

"Bexar County Clerk accepts first electronic real estate notice": "Bexar County Clerk Gerry Rickhoff accepted the county's first electronically filed real property record on Monday to commemorate the courthouse's new capability." The San Antonio Business Journal has the rest of the story here.

"Rape, Murder Rates Up Slightly in 2002": Reuters reports here that "[t]he number of reported rapes and murders in the United States increased in 2002 but the overall number of violent crimes dropped nearly 1 percent from the previous year, the FBI said on Monday."

States Sue EPA: Reuters reports here on the recent suit by 12 states and the District of Columbia against the "Bush Administration to Block Clean Air Act changes for coal-fired utility companies." I posted the petition for review last night.

Rethinking Imprisonment of the Mentally Ill: "There is, moreover, another sizeable group of prisoners for which wholesale imprisonment is even less appropriate: the mentally ill. Prisoners with mental illness frequently endure violence, exploitation and extortion at the hands of other inmates, and neglect and mistreatment by prison staff. Not only is the experience of imprisonment counter-therapeutic for such prisoners, many mental health experts believe that it dramatically increases their chances of psychiatric breakdown." This article by Joanne Mariner appears at Findlaw.com today.

"High Court May Have to Take Terror Case": Gina Holland of the AP has this article discussing the expected November decision on whether to "review cases involving the detention of foreigners at Guantanamo Bay, Cuba."

Speaker Craddick Appoints 4 to Sunset Advisory Committee: Representatives VIcki Truitt, Peggy Hamric and Glenn Lewis were appointed to the committee along with former Representative John Shields. "The Sunset Advisory Commission was created by the 65th Legislature in 1977 to evaluate the performance of state agencies scheduled for review in accordance with the Sunset Act." The Press Release is available here. The Sunset Advisory Commission's website is availabe here.

Review of the 3rd Called Special Session: Speaker of the House Tom Craddick's office has released this "special snapshot" of the 3rd Called Special Session.

New Houston Crime Lab Chief Criticized: "Several City Council members expressed concern about their new crime lab director on Monday, asking why she did not know about audits critical of the state DNA labs she ran for nine years and questioning her ability to rehabilitate Houston's troubled lab." The Chronicle has the rest of the story here.

Latest News From Durst Murder Trial: Yesterday, millionaire Robert Durst testified "'I did not kill my best friend,' Durst said. 'I did dismember him. His death was an accident.'" The Houston Chronicle has the rest of yesterday's cross-examination of Durst here.

DNA Evidence Links Houston Man to 4 Capital Murders: The Houston Chronicle reports here that a Dallas crime lab (contracted by the Houston lab) linked the DNA of a registered sex offender to four Houston area capital murders. "On Monday, police charged Anthony Allen Shore with four counts of capital murder in connection with the deaths."

"UTSA Welcomes Gay Fraternity": The San Antonio Express-News has this story.

Brownsville Capital Murder Trial News: "It was financial desperation, not insanity, that led to the suffocation, stabbing and decapitations of three small children, their mother told police. Her second statement contradicted a confession she gave the night before, hours after Angela Camacho and her common-law husband, John Allen Rubio, were arrested when the children's bodies were found. Two written statements and a videotaped statement by Camacho on March 11 and 12 were presented Tuesday in Rubio's capital murder trial over the objections of defense lawyers." The San Antonio Express-News has the rest of the story here.

Texas Execution Before Inter-American Commission on Human Rights: The Austin American Statesman reports here that "[o]ne year and 19 days after James Rexford Powell was executed by the State of Texas, his legal case drew one last breath. On Oct. 20, the dead man's lawyers appeared before the Inter-American Commission on Human Rights, a seven-judge panel that is part of the Organization of American States and charged with protecting human rights in the Americas."

Galston to Address Diversity and Political Pluralism at UT Law: This Thursday, "Professor William Galston will deliver the 2003 Alexander Terrell Centennial Lecture, 'Structures of Diversity: Political Pluralism and the Limits of Public Power,' in the Connally Center Kraft Eidman Courtroom at the Law School on Thursday, October 30, at 6:15 p.m. A reception beginning at 5:30 will precede Professor Galston’s lecture." More information can be obtained at this link.

"Implementing the Michigan Cases in Texas": Law.com has an article here on the complexity of implementing the decisions in Grutter v. Bollinger and Gratz v. Bollinger in Texas.

Monday's Oral Arguments at the United States Supreme Court: The Supreme Court Monitor has the following case summaries on Monday's oral arguments:

Maryland v. Pringle: "Where drugs and a roll of cash are found in the passenger compartment of a car with multiple occupants, and all deny ownership, does the Fourth Amendment prohibit a police officer form arresting the occupants of the car?" Read the case summary here.

Kontrick v. Ryan: "Whether the deadlines established by Bankruptcy Rule 4004 for objecting to a debtor's discharge in bankruptcy are jurisdictional, and therefore unwaivable." Read the case summary here.

Bankruptcy Case at the United States Supreme Court: "Tennessee Student Assistance Corp. v. Hood, [is] a case that pits the federal bankruptcy code against the U.S. Constitution. At stake could be a basic foundation of bankruptcy law versus states' sovereign immunity rights." The Supreme Court Monitor has the rest of this article which takes a look at the case and Leonard Gerson, the bankruptcy attorney representing the plaintiff-debtor.

In related news, the Supreme Court Monitor has this case summary on Monday's oral argument in Kontrick v. Ryan, a bankruptcy case which asks "[w]hether the deadlines established by Bankruptcy Rule 4004 for objecting to a debtor's discharge in bankruptcy are jurisdictional, and therefore unwaivable."

5th Circuit Opinion: Today, the 5th Circuit published its opinion in Mireles-Valdez v. Ashcroft. In Mireles-Valdez, the Court was asked "whether a voluntary departure from the United States under the threat of the commencement of immigration proceedings interrupts the requisite continuous presence for eligibility for cancellatiobn of removal pursuant to 8 U.S.C. [sec.] 1229b." The Court (Barksdale, DeMoss, and Benavides) held that section 1252(a)(2)(B)'s "ban on review of 'judgment[s] regarding the granting of relief' precludes review only of discretionary decisions." The full opinion can be accessed here.

Findlaw.com's summary of the case:
"MIRELES-VALDEZ v. ASHCROFT, No. 02-60405 (5th Cir. October 27, 2003)
Whether an alien satisfies the continuous presence requirement is a
nondiscretionary determination, and a voluntary departure from the
US under the threat of the commencement of immigration proceedings
interrupts the requisite continuous presence for eligibility for
cancellation of removal, pursuant to 8 U.S.C. section 1229b."

In related news, the National Law Journal has this article on the surge of immigration appeals.

Harris County Excessive Force: The Houston Chronicle reports here that "Harris County grand jurors have declined to indict Baytown patrolman Edgar Elizondo for using excessive force to zap an epileptic patient inside an ambulance to subdue him."

States Sue the EPA: Several States have filed the following petition for review in the United States Court of Appeals for the District of Columbia. The petition asks the Court to "review the final rule of the United States Environmental Protection Agency entitled 'Prevention of Significant Deterioratiobn (PSD) and Non-attainment New Source Review (NSR): Routine Maintenance, Repair, and Replacement.'" Texas is not part of the suit.

News From Durst Murder Trial: The AP reports here on the latest from the Durst murder trial. The State resumed cross-examination of Durst today and reportedly grilled Durst about whether he remembered cutting up his neighbor who he claims he killed in self-defense.

Austin's DNA Lab Problems: The DPS crime lab here in Austin has been identified as one of the seven DPS labs with problems. The Statesman reports here that the problems are less significant than Houston's but nonetheless identified the following as some of the problems: "[1] evidence improperly sealed and inadequately identified to show who handled it; [2] a refrigerator half-full of rape kits that was left at room temperature for days, risking deterioration; and [3] a supervisor who had not taken a required statistics course, essential to interpreting and explaining DNA test results."

Right to Die: The Austin American Statesman has this article on a burn victim's 30-year battle for patients' right to die.

Murderabilia News: The Houston Chronicle reports here on dealing in what has become known as "murderabilia." Texas has an anti-murderabilia statute which can be access here. ABC News has this article on the morality of murderabilia.

5th Circuit Opinions: The Fifth Circuit did not release any published opinions on Friday but did release six unpublished opinions.

Texas Law Blog: For those of you who follow Howard Bashman's How Appealing, you will notice that Mr. Bashman has graciously dropped Texas Law Blog a link. How Appealing receives 7,000-10,000 hits a day and serves as a model for the Texas Law Blog. This weblog is devoted to Texas legal issues. After two weeks in service, the Texas Law Blog has had over 175 visits! I believe you will find this law blog timely, informative and interesting. Among several major Texas newspapers and legal websites, the Texas Law Blog monitors the Supreme Court, 5th Circuit, Texas Supreme Court, Texas Court of Criminal Appeals, and the various Courts of Appeals. Please pass this link on to your colleagues and help me make the Texas Law Blog known throughout the Texas legal community.

Self-Representation: The El Paso Times has this article on defendants who represent themselves and the experts who try to dissuade them.

Problems at DPS Labs: "Problems similar to but not as significant as those cited at the Houston Police Department crime lab's DNA section have been noted in recent years at seven of the nine Texas Department of Public Safety labs that conduct DNA analysis, according to a published report." The Fort Worth Star-Telegram has the rest of the story here.

Durst Murder Trial News: The Houston Chronicle reports here that prosecutors are ready to question Robert Durst who took the stand in his own defense last week. Durst has claimed that the homicide was in self-defense.

A Piece of History: The San Antonio Express-News reports about a forgotten piece of history from the Bexar County Jail--The Register of Prisoners Confined in the County Jail of Bexar. "Although the book is worn and some of the pages faded, the handwriting is clear and legible. It is a permanent record of what life was like in San Antonio between 1885 and 1890, when the city was undergoing a massive transformation and its population increasing. Some of the offenses with which people were charged were common then: mail robbery; fence cutting; dealing in illicit liquor; using insulting language; stealing horses; swindling; and violating the gambling laws, which could net the offender a $10 fine. Others, such as seduction and adultery, for which both men and women could be fined and even sent to jail, seem archaic now." You can read the rest of the article here.

Justice for All Conference: The Star-Telegram has this article on the Justice for All Conference in Dallas where the Patriot Act took a beating.

Death Row: The Chronicle offers this article on the current lull in executions. See this post for a similar article from the Statesman.

Charles Soecting to Lead Texas Democrats: The State Democratic Executive Committee selected San Marcos lawyer Charles Soechting as chairman of the Texas Democratic Party. The Statesman has this article and the Texas Democratic Party has this press release. The Chronicle has an article about the election here.

When the Police are Prosecuted: The Statesman offers this article on the subject of prosecuting police.

Out of Town: I am leaving town today and therefore the Texas Law Blog will not be updated until Sunday afternoon. I hope everyone has a good weekend!

Priest Sentenced to Life: The AP reports here that "[a]n East Texas jury has sentenced a former priest who once evaded prosecution by fleeing to South America to life imprisonment for the repeated sexual assault of a teenage parishioner."

Texas Supreme Court Orders: Today's orders of the Texas Supreme Court are available here.

4th Amendment Case from the 5th Circuit: Today, the Fifth Circuit released its opinion in Grant v. United States. The appellant challenged the "district court's denial of his motion to suppress, arguing that the office who made the stop detained him for an unreasonable amount of time, beyond the scope of the traffic stop." The Fifth Circuit affirmed.

Another 5th Cir. Bankruptcy Opinion: Today, the 5th Circuit released its opinion in In re Erlewine. The issue before the Court was whether a bankruptcy trustee could recover property transferred to the debtor's former husband pursuant to a divorce decree. The bankruptcy court granted SJ for the former husband and both the district court and court of appeals affirmed. Yesterday, I reported here on a bankruptcy decision from the 5th Circuit.

COA Opinions: Access yesterdays opinions from the courts of appeals. The 1st COA opinions are here; the 3rd COA opinions are here; the 5th COA opinions are here; the 8th COA opinions are here; the 11th COA opinions are here; the 13th COA opinions are here; and the 14th COA opinions are here.

TSU Settles Whistle-Blower Case: The Chronicle reports here that "Texas Southern University on Thursday agreed to pay $350,000 to settle a whistle-blower lawsuit by a former campus police chief who accused administrators of firing him to halt an investigation into the possible theft of $4,000 by a school employee."

East End Capital Murder Trial News: The Chronicle reports here that "a judge ruled Thursday that jurors could hear evidence of his alleged participation in the earlier rape and killing of a 15-year-old girl."

"Aborted fetus seized as evidence:" The Statesman has this article about an aborted fetus that was seized from an Austin health clinic to determine who impregnated the girl in a sexual assault case.

Holocaust Survivor Registry Statute Unconstitutional: The Statesman reports here that "[a] state effort to make it easier for Holocaust survivors and their Texas heirs to collect on insurance policies sold in wartime Europe has been ruled unconstitutional. The decision by Attorney General Greg Abbott's office -- based on a similar U.S. Supreme Court ruling -- means Texans with insurance claims from Holocaust-era policies face a Dec. 31 deadline to join an international effort to collect."

Battle for New House Seat Heats Up: The race is on between U.S. Rep. Lloyd Doggett and State Rep. Kino Flores for the new house seat that runs from Austin to the border. Yesterday, Rep. Flores said the Doggett was wrong for the district (by ethnicity and geography). The Statesman has the rest of the story here.

APD Officer's Pay Reinstated: Officer Scott Glasgow, who was indicted earlier in the week for the "shooting death of a man he pulled over while on patrol," has his pay reinstated by APD. Read the rest of the story here.

Scalia Critical of Decision: The AP reports here on a speech Justice Scalia delivered today to the Intercollegiate Studies Institute.

Prison Doctor Sentenced in Inmate Sex Abuse Case: The Houston Chronicle reports here that "[a] former gynecologist at Fort Worth's federal prison for women was sentenced to more than a year in federal prison for having sex with inmates. Dr. Carlos Baez, 41, was charged with having sex with three inmates at the Federal Medical Center Carswell between November and January. In a plea agreement in July, he pleaded guilty to two counts of sexual abuse of a ward."

Latest News From the East End Trial: Today, Walter Alexander Sorto told jurors he was coerced into raping the victims. Read this story from the Houston Chronicle.

Latest News on Enron Suits: "The little Enron trial in Brenham got a lot bigger today when an appellate court paved the way for Wall Street to join the fray.
The Texas 14th Court of Appeals ruled that Washington County Judge Terry Flenniken abused his discretion by refusing to add seven financial institutions to the previously swiftly moving civil lawsuit. The three-judge appellate panel ruled that the rural judge must grant defendant Arthur Andersen's request that the banks be added to the case." The Chronicle has the rest of the story here.

Robert Durst's 2nd Day on Stand: The Houston Chronicle has the story here.

Mentally Ill Inmates Need More Care: "Prison systems across the United States are increasingly becoming warehouses for mentally ill Americans, and many are being abused and neglected, the international advocacy group Human Rights Watch charged Wednesday." The Statesman has the rest of the story here.

"Doggett will bid for Austin-to-Valley district:" The Statesman reports here that "Austin's incumbent congressman [Lloyd Doggett] says he expects redrawn map to fail, but is preparing to run in a new district"

U.S. Parties are Diverse But What about Foreign Parties?: Today, Judge Posner answers the question here. By the way...it does not destroy diversity.

5th Circuit Upholds D.Ct.'s Reversal of Bankruptcy Court: Today, the 5th Circuit upheld a district court's reversal of a bankruptcy court who dismissed a student's federal loans on the grounds that they were an undue hardship. You can access the Court's opinion here.

Court Delays First Enron Settlement: The AP has this report.

Texas S.Ct. Orders: The Supreme Court denied 2 petitions for a writ of mandamus and 1 petition for a writ of habeas corpus. Access the Court's orders page here.

Judicial Profiles: The Texas Bar Journal has two judicial profiles in this month's issue. The profile of Judge Cathy Cochran can be accessed here and the profile of Justice Stephen Wayne Smith can be accessed here.

State Sovereign Immunity: The National Law Journal has an article here on a current circuit split over State sovereign immunity.

News From Brownsville Capital Murder Trial: The S.A. Express-News reports here that John Allen Rubio "told detectives he knew it was wrong and planned to surrender to authorities, according to a March 13 videotaped statement" that was shown to jurors on Wednesday.

News from Insurance Commission Hearing: The Texas Insurance Commission held a public hearing on Wednesday to address the issue of credit scoring. The S.A. Express-News reports here that "Texas Insurance Commissioner Jose Montemayor will consider changing the amount that insurance companies can charge people who have poor credit scores. At a hearing Wednesday, consumers asked Montemayor to cap rate increases based on the practice of credit scoring to 15 percent. Insurance companies, however, are asking for much higher caps or none at all."

Business Marketing Campaign: The Houston Chronicle reports here that Governor Rick Perry has "announced plans for the offices [the State Regional Economic Development Office in Arlington and in several other cities] last month when he introduced a $5 million marketing campaign to promote the state's business climate, education system and work force." The goal of the plan is to lure more jobs to Texas.

The Latest From Houston's East End Capital Murder Trial: The Houston Chronicle reports here that Walter Alexander Sorto took the stand yesterday and described how the victims were "abducted, raped and shot to death."

Rumor Has It: Amid all the speculation regarding the future of Texas Democrats, United States Representative Jim Turner (D-Crockett) would not dispel rumors that he is considering a run for governor, lieutenant governor or the United States Senate. The Statesman has the rest of this story here.

Luling Death May Go to Grand Jury: The Statesman reports here that "[a] police investigation into the Oct. 11 accident in which a car plowed into a group of Luling High School athletes is now in the hands of Caldwell County prosecutors."

Durst Murder Trial: The AP reports here on New York millionaire Robert Durst's decision to take the stand.

The Houston Chronicle reports here that "Durst, 60, faces spending the rest of his life in prison if convicted of murdering 71-year-old Galveston neighbor Morris Black, then dismembering Black's body, packing the pieces in garbage bags and throwing them into Galveston Bay. His attorneys began their defense Wednesday by calling Durst to the stand. They hope Durst can convince jurors that Black died accidentally while the two struggled over a pistol in Durst's Galveston apartment Sept. 28, 2001. Defense attorneys already have told jurors Durst cut up Black's body in panic and tried to cover up the death. Today, Durst is expected to describe the dismemberment and disposal of Black's body."

Redistricting News: The Austin American Statesman reports here that U.S. Representative Lloyd Doggett of Austin is considering running for a "more democratic district" if the new map is upheld. Here is the district Rep. Doggett is considering.

Susan Weddington Resigns Top GOP Position: The Texas GOP reports here on Susan Weddington's decision to step down as Chairwoman of the Texas GOP and head the OneStar Foundation.

Molly Beth Malcolm Stepping Down: The Texas Democratic Party has this letter to the public about her decision to step down as Chairwoman of the Texas Democratic Party.

5th Circuit Opinions: No opinions were released today by the 5th Circuit.

3 Bullets and a Legal Battle: The Corpus Christi Caller Times reports here about 3 bullets igniting a legal battle in Kingsville. "The mystery of three .38-caliber bullets that ignited a legal battle in federal court and an alleged tangled political conspiracy resurfaced Tuesday as Kingsville Mayor Phil Esquivel testified in the election code violation case against the Kingsville police association and a Kingsville police sergeant.

Esquivel testified that he suspected that members of the Kingsville Police Department placed the bullets in a drop box at Kingsville City Hall in January the morning before the commission was scheduled to act on the termination of the city manager.

The bullets were marked with the names of Esquivel and city commissioners Arturo Pecos and Horacio "Hoss" Castillo. Esquivel testified that the former police chief and other officers attempted to intimidate him into stopping the move to fire the city manager in January."

Ex-Dallas Police Officer & Wife Convicted: The AP reports here that "[a] jury on Wednesday convicted a former Dallas police officer and his wife on three federal counts of federal obscenity charges for selling videos depicting rapes. Garry Layne Ragsdale, 34, and Tamara Michelle Ragsdale, 32, will remain free on bond until a Jan. 23 sentencing trial in Dallas. The couple, who live in Fort Worth, each faces up to 20 years in prison and a $750,000 fine."

Brownsville Capital Murder Trial: "A man charged with killing and decapitating his three small children told detectives he knew it was wrong and planned to surrender to authorities, according to a March 13 videotaped statement." The Express-News has the rest of the story here.

Susan McFarland's Murder Trial Moved to Austin: "Intense media coverage of the death of Susan McFarland has led District Court Judge Sid Harle to move the murder trial for her husband, Richard, to Austin." The Express-News has the rest of the story here.

"Advance payments made by city may be illegal, audit shows:" "An audit of a contract between the City of Houston and the Texas Procurement Center LLP has uncovered advance payments that may have been made in violation of state law, according to the Houston City Controller's office." Read the rest of the story from the Houston Business Journal here.

The Latest News From Citgo Lawsuit: The AP reports here that "Six appeals court judges, in addition to five other judges, have removed themselves from presiding over an alleged kickback case involving attorney and state lawmaker Jaime Capelo. That leaves District Judge Sandra Watts as the only local judge who has agreed to preside over the case involving Capelo, D-Corpus Christi, and Rene Rodriguez, Capelo's opponent in a 2002 personal injury case stemming from an explosion at a Citgo refinery."

"West Texas prosecutor loses DWI appeal:" "A New Mexico court has denied the appeal of a West Texas prosecutor on a misdemeanor aggravated drinking [sic] while intoxicated conviction." The AP has the rest of the story here.

Attorney's Fees Opinion from the 5th Circuit: "Benefits Review Board award of $15,500 in attorneys' fees to defendant pursuant to section 28(b) of the Longshoreman and Harbor Workers' Compensation Act is affirmed where the award was supported by substantial evidence on the record, and the correct legal standard was applied."
Read the opinion here.

PUC Decision from the 5th Circuit: S.W. BELL TEL. CO. v. PUB. UTIL. COMM'N OF TEXAS: "The district court correctly overturned the PUC's decision that defendant carrier was responsible for paying the increased interconnection costs resulting from having to carry traffic outside a particular calling area to a distant point of interconnection." Read the decision here.

"Crenshaw's agent named chair of state cemetery panel:" The Austin Business Journal reports here that "Scott Sayers Jr. of Austin, the sports agent and business manager for professional golfer Ben Crenshaw, has been appointed chairman of the Texas State Cemetery Committee, Gov. Rick Perry announced Tuesday."

8th COA Opinion: The Eighth Court of Appeals released one opinion in a civil case today. Access the opinion here.

Texas Dep't of Insurance Hearing: "The Texas Department of Insurance says it is taking steps to force insurers to justify their need to consider a person's credit history when setting customers' rates for auto and homeowners coverage." The Statesman has the rest of the story on the public hearing here.

News From the Durst Murder Trial: "Jurors in the Robert Durst murder trial spent nearly 20 minutes Wednesday touring the area along Galveston Bay where nearly all the body parts of the eccentric millionaire's neighbor were discovered two years ago." The Statesman has the rest of the story here.

6th Circuit Split on When Time to File Federal Habeas Petition Begins to Run: How Appealing predicts here that the Supreme Court will grant review on this issue soon. You can access the 6th Circuit's en banc opinion here.

Today's Hand Down List: Here is today's hand down list from the Court of Criminal Appeals.

Court of Criminal Appeals Opinions: Today, the CCA released 4 published opinions and 6 unpublished opinions. You can access the opinions here.

Title IX News: "Can a School Retaliate Against a Coach Who Complains About Its Unfair Treatment of Female Athletes? The Supreme Court May Well Decide." Findlaw.com has the story here.

"Text Of The Florida Bill That Gives State's Governor Jeb Bush Legal Authority To Order The Insertion Of A Feeding Tube Into A Patient In A Vegetative State, Despite A Court Order To The Contrary:" Read the text of this Bill here.

4th COA Opinions: Today, the Fourth Court of Appeals released opinions in 7 criminal cases and 7 civil cases. Access the opinions here.

5th COA Opinions: The Fifth Court of Appeals released five opinions yesterday. Access the opinions here.

6th COA Opinions: The Sixth Court of Appeals released opinions in two civil cases and two criminal cases yesterday. Access the opinions here.

7th COA Opinions: The Seventh Court of Appeals released opinions yesterday in three criminal cases. Access the opinions here.

New York State's Smoking Ban Withstands First Challenge: The New York Law Journal reports here that "New York's controversial new indoor-smoking ban withstood its first constitutional challenge Tuesday, when a federal judge suggested that if the tough law is overly burdensome, it is the fault and problem of local governments and perhaps the state Health Department, but not the state Legislature."

5th Circuit Opinions: Yesterday, the 5th Circuit released three opinions: United States v. Hinojosa, Avondale Industries v. Davis, and Whitehead v. Zurich Amer Insurance Co.. You can access the opinions here.

Brownsville Capital Murder Trial News: "John Allen Rubio told police he killed his 3-year-old daughter because she was possessed by his dead grandmother, according to a videotaped statement presented in court Tuesday." Get the rest of the story from the Express News here.

S.A. City Council Wants Higher Pay and Longer Terms: The San Antonio Express News has the story here.

The "Women's Right to Know Law:" The Chronicle has this article on yesterday's public hearing on the new "Women's Right to Know" law.

Self Defense?: The Chronicle reports here that "New York millionaire Robert Durst may take the stand today and tell his version of the shooting death and dismemberment of 71-year-old Morris Black, according to people familiar with the case."

Houston's East End Capital Murder Trial: The Chronicle reports on the capital murder trial of Walter Alexander Sorto here.

"Prosecution of environmental crime a job for local officials:" The Statesman Editorial Board has the following editorial on the new environmental prosecution law.

"A big treat for polluters fell out of the legislative pinata this year: a new law that hobbles pursuit of environmental crime by local prosectors. Instead of having the freedom they once enjoyed in investigating environmental transgressions, independently elected county and district attorneys must now ask an Austin bureaucracy if they may do so.

No one would ever accuse Texas prosecutors of being environmental zealots or being overly aggressive with companies that endanger the environment. The jurisdiction with the highest number of environmental cases pending is not Travis, but Harris County, where 325 criminal environmental cases were filed last year, and where prosecutors have a caseload of 600.

Those numbers were way too many for the Texas Association of Business -- officers and employees of whom are under investigation for possible campaign law violations in Travis County -- and the Texas Chemical Council, members of a coalition of business groups that lobbied successfully for the change in the law.

Kinnan Golemon, an Austin lawyer who advised the business groups, was quoted by the American-Statesman's Kevin Carmody as saying: 'I want to have a system where real criminals get prosecuted, and I also want a system where people who make honest mistakes get told not to do it again and, if necessary, pay some penalty. We've seen too many cases of people who made honest mistakes being prosecuted criminally, whereas if those cases had gone through the TCEQ, they would not have come anywhere close to criminal prosecution.'

If armed robbers had a lobby that made a pitch for mandatory conflict resolution or counseling for their clients who misbehave, they would have been laughed out of the Capitol. That lobby certainly would not have found a sympathetic ear from state Sen. Ken Armbrister, D-Victoria, a former police officer. Nonetheless, Armbrister was sufficiently moved by the pleas of the business coalition to rush to their aid. Similarly moved was state Rep. Jaime Capelo, D-Corpus Christi, who carried this turkey in the House. The final version of the bill won unanimous approval in the Senate and an 84-56 approval in the House.

This is no cosmetic change to protect hapless citizens from overzealous prosecutors. It is a direct attack on local discretion by locally elected prosecutors to protect their communities from environmental harm. Locally elected prosecutors should not have to seek permission from an Austin agency to investigate and prosecute crime, but absent intervention from the courts, that's now the law. Laws can be repealed, and this is a prime candidate."

Access the editorial here.

Williamson County Sheriff Enters Rehab as Inquiry Begins: Today's Austin American Statesman has this report.

"'Plain-spoken' Preston Smith laid to rest:" "Preston Smith, who fulfilled his childhood dream of being governor, was buried Tuesday in the Texas State Cemetery, a few feet from his immediate predecessor, John Connally, and several other former governors." The Statesman has the rest of the story here.

Effect at APD of Officer's Indictment: The Statesman reports here "[u]nion chief says homicide charge will have 'chilling effect' on officers' everyday actions."

UT Football Star Charged: The Statesman has this story on Cederic Benson's criminal trespass charge.

Governor Appoints Inspector General: The AP reports here that "Gov. Rick Perry has named Brian Glenn Flood of Allen to be inspector general for Health and Human Services."

"$200 million copyright infringement lawsuit:" The AP reports here that "A 32-year-old producer has filed a $200 million lawsuit against Beyonce Knowles, her father and fellow members of Destiny's Child alleging they stole his music for the hit song 'Survivor.'"

Fake Attorney Sentenced: The AP reports here that "A 79-year-old Laredo man Tuesday was sentenced to 15 months in prison after he and an accomplice posed as attorneys and bilked two victims out of $70,000."

Texas Association of Business Delivers Documents: The Austin Business Journal has this article.

911 Dispatcher Suspended After Man Dies: "A dispatcher who answered a 911 cell phone call from a man being stabbed to death was suspended without pay for lack of action on the call, police said." Read the rest of the story here.

5th Circuit Opinion: The United States Court of Appeals for the 5th Circuit released a per curiam opinion in United States v. Outley. Read the opinion here.

5th Court of Appeals Opinions: Yesterday, the 5th COA released eight opinions. You can access the opinions here.

14th Court of Appeals Opinion: Yesterday, the 14th COA released one opinion. You can access the opinion in In re Gillespie here.

7th Court of Appeals Opinions: Yesterday, the 7th COA released 2 opinions. You can access the opinions here.

Federal Appeals Court Affirms Royalty Case: "Radio stations must pay royalties to recording companies and performers, as they do to composers and songwriters, when musical broadcasts are 'streamed' over the Internet, a federal appeals court has affirmed." Read this report from the AP.

Prisoner Attempts Escape: The San Antonio Express News AP wire has the story here.

"Privilege Covers Stewart E-Mail to Her Daughter:" "An e-mail Martha Stewart sent to both her attorney and her daughter during a grand jury investigation is still protected as attorney work product, a federal judge ruled Monday." The Legal Intelligencer has thisarticle.

Houston News: The Houston Chronicle has the following stories today: The Chronicle has this article on yesterday's church service for Gov. Smith. Here the Chronicle reports on the first day of the East End capital murder trial of Walter Alexander Sorto. In HPD DNA Lab news, the Chronicle has this story on the new director's eagerness for a turnabout. In the trial of millionaire Robert Durst, an officer testified yesterday that there is no evidence to refute the claim that he killed his neighbor in self-defense. Read the rest of this story here. Here the Chronicle reports on the Brownsville capital murder trial of John Allen Rubio who is accused of killing and decapitating his children. Finally, the Chronicle has this article about the two front runners for chair of the Texas Democratic Party.

Austin News: The Austin American Statesman has the following stories today: Here is the story of an APD officer who was indicted by a Travis County grand jury yesterday. Here is the latest on Williamson County Sheriff John Maspero who will check himself into an alcohol treatment program. The Statesman reports here that the Texas Association of Business has dropped its 10 month legal battle.

Travis County Grand Jury Returns Indictment Against APD Officer: The Austin American Statesman has this breaking news.

Supreme Court to Consider Terry Identification Issue: The AP reports here that "[t]he Supreme Court...will consider whether people have a constitutional right to refuse to tell police their names."

Former Dewhurst Aid Appointed to TCEQ: The Austin Business Journal has the story of Larry Soward's appointment to TCEQ here.

ERCOT In Search of New CEO: "The Electric Reliability Council of Texas, which operates most of the state's electrical grid, announced Monday that it has retained Heidrick & Struggles, an international executive recruitment firm, to search for a new chief executive officer." The Houston Business Journal has the rest of the story here.

Blakely v. Washington: This morning, I reported that the United States Supreme Court had granted cert in Blakely v. Washington. The question presented in Blakely is: "Whether a fact (other than a prior conviction) necessary for an upward departure from a statutory standard sentencing range must be proved according to the procedures mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000)." You can access the brief in Blakely here (SCOTUS Blog).

5th Circuit Opinion: Today, a panel of the 5th Circuit released its opinion in International Transactions v. Embotelladora Agral Regiomontana. "The district court dismissed the case based on its conclusion that ITL lacked standing to collect the arbitration awared based on an order of a Mexican bankruptcy court in the insolvency proceedings of several Agral Companies." The Court concluded that the Agral Companies "failed to demonstrate that ITL and/or sharp was afforded notice and an opportunity to be heard in the proceedings leading to the Mexican court's decision" and vacated the judgment of the district court and remanded. Read the opinion here.

Yarborough v. Gentry: Today, the Supreme Court summarily reversed the 9th Circuit in Yarborough holding that the "Ninth Circuit erred in finding the California Court of Appeal's decision objectively unreasonable." The California Court of Appeals had held that Gentry was not denied effective assistance of counsel during closing argument. Access the Court's per curiam opinion here.

Cert Granted in 2 Cases: The SCOTUS Blog reports here on the cert grants in Blakely v. Washington (Apprendi) and Hiibel v. Sixth Judicicial District (4th Amendment).

"Supreme Court Passes Up Pardon Case:" "The Supreme Court refused Monday to consider whether a presidential pardon completely clears a person's past, restoring an individual's right to vote, have weapons or practice law. Justices rejected an appeal from William A. Borders Jr., a former criminal defense attorney who was convicted of conspiracy more than two decades ago in a Miami racketeering case." Read the rest of this AP story here.

Today's Orders From the United States Supreme Court:" You can access today's orders here.

In Texas v. New Mexico, the Court granted the motion of the River Master for fees and reimbursement of expenses--paid equally by the parties.

"Attorney Ordered to Disclose Letters Written to Expert Witness:" The National Law Journal reports here that "[i]n a ruling that underscores the tension between the work-product doctrine and disclosure, a Northern District judge in New York has adopted a bright-line rule and ordered a plaintiff to disclose letters her attorney wrote to an expert witness.

U.S. Magistrate Judge Gary L. Sharpe said that while courts nationwide have failed to reach consensus on the issue, he is joining those concluding that the expert disclosure requirement of Rule 26 of the Federal Rules of Civil Procedure is "paramount" and "has primacy" over the time-honored doctrine that generally precludes discovery of attorney-generated work product."

Federalism Today: The Houston Chronicle reports here on federalism and the response by the United States Congress to the passage of certain state laws.

Justice Scalia and Church-State Recusal: The Houston Chronicle has this AP report on Justice Scalia's decision not to recuse himself from similar cases to that of Newdow.

"Monsters of the Barrio" Trial Set to Begin Today: "The first trial for the so-called 'monsters of the barrio' -- a trio accused of terrorizing the East End with a series of killings, rapes and robberies that left at least six dead -- begins today in the court of state District Judge Jan Krocker." The Houston Chronicle has this report.

Woman Sentenced in Email Interception Case: The AP reports here on an Arizona woman who was sentenced to "60 days home detention for intercepting her husband's ex-wife's e-mail, saying the penalty is a warning to others who might be tempted to do the same."

Held: Internet Phone Calls Are Not Traditional Calls: "It may stunt Internet development and violate federal law if state regulators try to treat Internet-based voice calls as they do traditional calls, a judge ruled." Get the rest of the story from the AP here.

Captial Murder Trial Begins Today: "Opening statements begin today in the capital murder trial of John Allen Rubio, 23, who is charged, along with his common-law wife, of suffocating, stabbing and decapitating three children. He recounted the nightmarish scene in a written and video confession that jurors will hear in the coming weeks." Read the rest of the story here.

Longest Lull in 7 Years: The Austin American Statesman has this story on the longest lull in 7 years on death row.

"Legal Action Expected in Box Cutter Case:" "Legal proceedings were expected Monday in a federal court in Baltimore against a college student who the FBI believes hid box cutters and other banned items aboard two Southwest Airlines planes, the agency said. Government prosecutors still were trying to determine what charges they might bring against Nathaniel T. Heatwole. The 20-year-old student had warned officials he would try to bring forbidden articles onto commercial flights to expose holes in security, an official said." The Corpus Christi Caller Times has the rest of the story here.

Hon. David Hittner to Retire: The Houston Chronicle reports here on Judge Hittner's personality and retirement. Judge Hittner will take senior status late next year.

Governor Preston Smith (1912-2003): "Former Gov. Preston Smith, whose public career began during World War II and ended almost 30 years later in fallout from a major statehouse scandal, died Saturday. He was 91. " Read this article from the Houston Chronicle.

Same-Sex Marriage and Adoption: The Houston Chronicle has this story.

$515 Million in Legal Fees: The Houston Chronicle has this story on Enron's mounting legal fees.

Home Alone: The battle between working parents who have no choice and prosecutors who say it should not be done. Read this story from the Austin American Statesman.

"State has veto in charging polluters:" "[U]nder a new state law, law enforcement officers will now have to seek approval from the Texas Commission on Environmental Quality before asking a county or district attorney to pursue criminal environmental charges in such cases. Prosecutors are barred from pursuing criminal charges if the commission's review determines its own administrative penalties or a civil lawsuit are adequate to resolve an alleged violation." Read the rest of the story from the Austin American Statesman here.

Judge Watts: Rene Rodriguez Must Turn Over Financial Records: The Corpus Christi Caller Times reports here that Corpus Christi Attorney Rene Rodriguez must turn over his financial records in the 1997 Citgo Refinery Explosion case.

Nine Lives: The AP reports here that a Smith County serial rapist was sentenced to nine life prison terms.

"Man wins legal battle over 'the finger':" The San Antonio Express News has this story.

Governor Perry: "We still have work to do.": The San Antonio Express News reports here on a potential spring session to design a new methond of funding public schools.

Cameron County JP Turns Himself In: As I reported yesterday, a Cameron County JP was indicted on three counts of bribery. Today, the Houston Chronicle reports here that Antonio Torres has turned himself in.

Houston Firefighter Charged in Murder Plot: The Houston Chronicle reports here that "Veteran Houston firefighter Richard Frank Thomas allegedly wanted to kill his wife of 31 years and paid $5,000 for what he thought was a nontraceable poison, officers say."

GOP Leader Stepping Down: Texas GOP leader Susan Weddington is stepping down to head OneStar Foundation. Read this story in the Austin American Statesman. Read the Governor's press release here.

Merger of 12 Texas Agencies: The Austin American Statesman reports on the merger of a dozen health and human services agencies here.

Redistricting News: The Austin American Statesman has this story on how the new map will help the Republicans steer legislation.

"Witnesses Say Sheriff was Drunk:" Read this story at the Austin American Statesman.

Related News: The San Antonio Express News reports here that SAPD Capt. Jose Bañales was suspended 30 days after being pulled over on suspicion of drunk driving.

3rd Circuit Holds Radio Stations Responsible for Webcast Royalties:" "In a huge win for the recording industry, a federal appeals court has refused to overturn a rule passed by the U.S. Copyright Office that says radio stations must pay royalties when their broadcasts are simultaneously transmitted digitally over the Internet in a practice known as 'streaming.'" Get the rest of the story here.

"Scalia Recusal Revives Debate Over Judicial Speech, Ethics:" The Legal Times has this report.

Texas Legislature Turns Focus to School Finance: The Corpus Christi Caller Times has this report.

British Teen Cleared of Hack on Port of Houston: The Houston Chronicle has this report: "A British court cleared a teen-ager today of hacking into the computer of the U.S. port of Houston, Texas, after the youth testified his own computer had been taken over by someone else to mount the attack. "

TIBA's Case of the Week: Laney v. State: Read the Texas Independent Bar Association's Summary of this Court of Criminal Appeals case (the community caretaking doctrine) here.

"Plan merges 12 service agencies into 5:" The Austin American Statesman is reporting here that "[t]he state's 12 health and human services agencies will begin merging into five agencies in January, according to a draft plan released Thursday."

"Cameron County justice of peace arrested on bribery charge:" The AP is reporting here that "[t]he sealed grand jury indictment handed up Wednesday accuses Antonio Torres of accepting money in exchange for favorable judgments, District Attorney Yolanda De Leon said. She said the document was executed Friday and Torres immediately posted $10,000 bond."

New Fee Schedule for the Northern District of Texas: Here you can access the new fee schedule which takes effect on November 1st.

Man Shot by Police Undergoes 3rd Surgery: The Corpus Christi Caller Times has this story. "A 43-year-old man shot Oct. 12 by police has undergone three surgeries related to the 12-gauge shotgun wounds to his chest, said his brother. He remains hospitalized and has not been charged with aggravated robbery for the convenience store holdup he is accused of having committed before being shot. "

Yao Ming and the Chinese Subsidiary of Coke Reach Settlement: Read about the settlement here.

American Manufacturers Mutual Insurance Company v. Gary Schaefer: Today, the Texas Supreme Court released this opinion. The issue before the Court was "whether the Texas Standard Personal Auto Policy obligates an insurer to compensate a policyholder for a vehicle's diminished market value when the car has been damaged but adequately repaired." The Court held that it does not.

Today's Supreme Court Orders: Available here are today's orders from the Texas Supreme Court.

TDCAA's Analysis of Gonzalez v. State: You can read TDCAA's analysis of the case, which held that the COA did not err in failing to disqualify defense counsel based on the unsowrn-witness rule, here.

A Look at North Carolina's First Non-Partisan Judicial Election: The National Law Journal has this article.

"Houston groups awarded grants to provide legal assistance:" The Houston Business Journal reports here that "[e]ight nonprofit organizations in Houston will receive grants totaling $699,517 from the Texas Equal Access to Justice Foundation to provide civil legal assistance, such as advice or representation, to individuals who cannot afford attorneys. "

Texas Supreme Court Advisory: The Texas Supreme Court has this advisory reagarding the posting of orders on the Court's website.

Citgo Refinery Explosion Lawsuit: The Corpus Christi Caller Times reports here that attorney Jamie Capelo failed to file documents in the 117th District Court. "The case in Watts' 117th District Court is related to a federal lawsuit stemming from a 1997 Citgo refinery explosion. Capelo has been accused of taking a $100,000 kickback to help bring a settlement in that lawsuit. He has denied the allegation." Here you can access an editorial from the Caller Times titled "Watts should turn deaf ear to calls for recusal."

News from the Trial of Robert Durst: The AP has this report on yesterday's testimony from a Galveston police officer and Durst's choice of weapons.

Former Cowboy Deion Sanders Back in Court: The AP reports here that the suit stems out of Deion's failure to pay for body work on his 1985 Mercedez-Benz.

"Trial starts for youth charged in double slaying:" The S.A. Express News reports here that "[t]estimony could start today in the non-death capital murder trial of a 17-year-old San Antonio youth accused of participating in the shooting deaths of two convenience store clerks last year. Edelberto Avila faces a possible life sentence if convicted in the slaying of Mohammad Ashfaq and Gabriel Gonzalez. The two were killed during a robbery at the East Side convenience store where they worked. "

"Curry Declines Dallas Sheriff Case:" The Star-Telegram reports here that "[a] day after agreeing to investigate a Dallas businessman's ties to the Dallas County sheriff, Tarrant County District Attorney Tim Curry on Thursday declined the case because the businessman has contributed to his political campaigns."

Redistricting Fight Now Before the DOJ: "Democratic leaders on Thursday launched an online petition asking Attorney General John Ashcroft to reject the new Texas congressional redistricting map that could give Republicans up to seven additional House seats." Read this story from the Houston Chronicle.

HPD's DNA Lab News: The Houston Chronicle has this article about the lab's inability to replicate findings in a 1998 capital murde case.

What More Did the Democrats Lose?: In this morning's redistricting news, the Houston Chronicle reports here that Texas Democrats also lost "NASA and most of the Medical Center."

Carlton Dotson Gives Up Fight: Dotson, a former basketball player from Baylor, has given up his extradition fight. Read the story here in the Houston Chronicle.

"Houston firefighter arrested in murder-for-hire probe:" The Houston Chronicle reports here that "[a] longtime Houston firefighter was arrested Thursday night as part of a murder-for-hire investigation, police officials said. Detectives arrested the 33-year HFD veteran about 7:45 p.m. outside a Subway restaurant in the 3600 block of the Katy Freeway. The firefighter has not been charged, but "he is the suspect," said police spokesman John Cannon."

News From the Austin American Statesman: "Williamson County Attorney Eugene Taylor said Thursday he has begun an inquiry into whether Sheriff John Maspero should be removed from office for appearing to be drunk on a Georgetown roadside early Saturday morning." Read the story here. Here is the story from yesterday's Statesman.

Court of Criminal Appeals Opinions: You can access the Court's opinions which were handed down yesterday here.

Justice Kennedy in Lawrence v. Texas: The American Bar Association has this article on Justice Kennedy's growing influence.

Vice President Applauds New Map: The associated press reports here that the Vice President told a group of supporters today that Texas lawmakers worked on "righting some wrongs."

"Calvin Burdine may one day be paroled from prison:" "Sprung from death row because his lawyer slept during his trial, Calvin Burdine may one day be paroled from prison. The possibility is remote, but it does exist because of the sentencing laws in effect in 1983 -- the year Calvin Burdine, 50, murdered and robbed his roommate in Houston." Get the rest of the story from the Houston Chronicle here.

"Gov. Perry Signs HB 2 To Unlock Funding For Texas Trauma Care Centers:" Read the press release here.

Houston Chronicle's Archive of HPD Crime Lab Stories: Access the archive here.

Texas Senator Van de Putte Not Resigning:" The San Antonio Express News has the story here. Van de Putte is suffering from a health problem and is up for re-election in 2004.

"Austin woman went to jail to keep daughters away from sex-offender father:" The Austin American Statesman has the story of her 6 year battle that has come to a successful end here.

Supreme Court Grants: At this link you can access summaries of yesterday's grants at the United States Supreme Court. The first case, Grupo Dataflux v. Atlas Global Group, the second case, Dretke v. Haley, and the fourth case, Tennard v. Dretke consolidated with Smith v. Dretke, are all out of the Fifth Circuit.

United States Supreme Court & The Pardon Power: The Legal Intelligencer reports here that the United States Supreme Court will decide whether to grant review in Borders v. District of Columbia Office of Bar Counsel at this Friday's private conference. President Clinton pardoned William Borders, Jr. on his last day in office for Borders involvement in trying to bribe a federal judge. The United States Court of Appeals for the District of Columbia held "that the pardon did not automatically entitle Borders to reinstatement."

"Becker Calls on Congress, Justices to Fix ERISA:" "As 3rd Circuit Judge Edward R. Becker sees it, perfectly valid lawsuits against HMOs are routinely being tossed out of court due to the unfairness of the pre-emption provisions in ERISA, and either Congress or the U.S. Supreme Court had better do something about it soon." The Legal Intelligencer has the story here.

More on the Bush/Schwarzenegger Meeting: The Austin American Statesman has more on today's private meeting between the two here.

"Patrol video of sheriff's stop is withheld:" "Georgetown's city attorney refused Wednesday to release a patrol car videotape that shows city police stopping Williamson County Sheriff John Maspero after a motorist called 911 to report he was relieving himself on the roadside and seemed drunk." The Austin American Statesman has this story.

Houston Grand Jury: A Houston grand jury strongly criticized HPD's DNA lab managment. Read this article from the Houston Chronicle.

"Grand jury issues no indictments in Houston DNA probe:" "A grand jury declined to indict anyone Thursday as it ended a six-month investigation into the Houston Police Department's embattled DNA lab, though the panel lambasted the unit as being incompetent and mismanaged." Read the rest of the story here.

Fifth Circuit Opinion: The 5th Circuit released its opinion in Meritrend v. Serac. You can read the opinion here. There is an interesting discussion on the "creation and waiver of federal maritime liens."

"NOTICE OF INCREASE IN APPELLATE FILING FEES:" The United States Court of Appeals for the Fifth Circuit posted this notice today. "Effective November 1, 2003, the cost for filing a notice of appeal will be a total of $255, instead of the present $105. The costs will be broken down as follows: $250 as specified in the revised Miscellaneous Fee Schedule, and the $5.00 fee required by 28 U.S.C. [sec] 1917. These fees are payable TO THE DISTRICT COURT CLERK when the notice of appeal is filed."

Today's Texas Supreme Court Orders: Access today's orders from the Texas Supreme Court here.

A San Antonio "Man who beat '99 murder rap admits to robbery:" Read this story from the Express News.

"Hearing on Use of Race in Juror Challenges Ordered:" "The 2nd U.S. Circuit Court of Appeals has affirmed a writ of habeas corpus that a district court judge granted to a convicted murderer who argued that the prosecution's use of peremptory challenges during jury selection was based on race.

At the same time, however, the circuit ruled that the lower court abused its discretion when it granted the man a new trial absent a hearing to determine if those challenges were unlawful.

The three-judge appellate panel found that Curtis Harris, a black man convicted of murder by an all-white jury in a two-day trial in 1985, was entitled to the writ of habeas corpus he received from U.S. District Judge Joanna Seybert in October 2000.

But the panel also found that before granting a new trial, Seybert should have called for a hearing to address whether the prosecution used its peremptory strikes in violation of the defendant's constitutional rights. "

Read the rest of this article at TDCAA's website.

"Perry says put hostility in past:" The S.A. Express News has this article.

"Redistrict lawsuits piling up:" The S.A. Express News states here that "A lawsuit filed Tuesday in Victoria on behalf of a Corpus Christi-based Hispanic advocacy group and another filed in Marshall by a group of East Texas Democrats may be part of a long line of court challenges to the Legislature's effort to send more Republicans to Congress."

"Cooper district looks to settle appraisal fight:" LubbuckOnline states here that "[t]he State Comptroller's Office and the Lubbock-Cooper Independent School District are considering a settlement in a dispute over the district's 2002 appraised taxable value."

Thinking of Running for Mayor of Houston? The Houston Business Journal has this report. It may cost you $8 million!

"Smoking bans create clouds of controversy:" The Houston Business Journal has this report.

"More charges brought in Enron-Merrill Nigerian deal:" The Houston Business Journal has an article here which begins: "Former Enron Corp. accountant Sheila Kahanek and former Merrill Lynch vice president William Fuhs have pleaded not guilty after prosecutors charged them participating in a conspiracy to pad Enron earnings by dressing up a loan to look like a sale, Reuters reported on Wednesday."

Today's Opinions from Around the State: The 14th COA opinons are here. The 13th COA opinons are here. The 11th COA opinions are here. The 8th COA opinions are here. The 3rd COA opinions are here. The 1st COA opinions are here.

TDCAA's Review of Ex Parte Peterson: "The Court...set out a three-prong analysis for evaluating a double jeopardy mistrial claim:

(1) Did manifestly improper prosecutorial misconduct provoke the mistrial?
(2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?
(3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial?"

You can access the review here.

Proposed Rule Changes to the Texas Rules of Disciplinary Procedure: At this link you can access the proposed rule changes in PDF format.

"Feedback Sought on Disciplinary Rules Changes:" "The State Bar held a public hearing on Wednesday, Oct. 15, regarding proposed changes to the Texas Rules of Disciplinary Procedure. Changes are intended to make the disciplinary system less complex for the participants, shorten resolution time, and provide for a voluntary mediation process for complaints that do not violate the rules of professional conduct."

State Insurance Commission to Look at Credit Scoring in Public Hearing: "'Insurance companies that cannot prove that their models or data accurately reflect their risks will not be allowed to use credit scoring,' Montemayor said in a statement Wednesday announcing the hearing. 'Beginning on January 14, 2004, I will not concede a single percentage point to insurers unless they can prove it.'" Read this article for the rest of the story.

Yao Ming Nears Settlement with Coca-Cola: The Star-Telegram has the report here.

"Committee of judges to examine writ bonds:" "A state district judge circumvented what many expected to be a heated debate over Tarrant County's use of writ bonds by appointing a committee Wednesday to research the legal and ethical issues of releasing suspects from jail without a hearing." The Star-Telegram has the rest of the story here.

Bush to Meet with Schwarzenegger: The Houston Chronicle reports here that "[p]umping up his re-election chances in the Golden State, President Bush today meets privately with the Republican Party's hottest star, Arnold Schwarzenegger, who recently wrestled the governorship away from the Democrats."

Katy Man Confesses to Wife's Murder: The Houston Chronicle has the story here.

Silicone Injection Deaths: The Houston Chronicle reports here that "[t]wo men were indicted Wednesday on charges stemming from the fatal injection of silicone into three transgender men in recent months, a practice that police say has menaced that community for more than 20 years. "

This Morning's Redistricting News: The Austin American Statesman has an article here on the shake-ups of redistricting. The Houston Chronicle reports here that "Perry savors GOP's redistricting victory."

Court of Criminal Appeals Hand Down List for October 15th: Here you can access the hand down list.

"Bush Looks to Align With Schwarzenegger:" The Star-Telegram and the AP have this story. "President Bush, hoping to share in Arnold Schwarzenegger's political success and build support in vote-rich California, said Wednesday 'there's been some interesting changes' since he lost the state to Democrat Al Gore three years ago."

"Third Suit Filed in Redistricting:" The Star-Telegram has the complete story here. "The American GI Forum, a non-profit organization that promotes Hispanic issues, filed a federal lawsuit Tuesday to block the new congressional redistricting plan from being used in the 2004 election."

Enron Conspiracy Case: The AP is reporting here that more defendants were added to the Merrill Lynch and Enron conspiracy case. "Sheila K. Kahanek, the in-house accountant, and William R. Fuhs, a former vice president for the brokerage firm, were added as defendants to last month's indictment of three former Merrill Lynch executives for allegedly participating in the barge scheme. Both were freed on $100,000 bond, according to court records."

Judge Poe Stepping Down (Allegedly to Run for a Congressional Seat): The associated press has the report here. "State District Judge Ted Poe, who never has shied away from controversy, is stepping down after 22 years on the bench. Poe, initially appointed by Gov. Bill Clements in 1981, told Gov. Rick Perry this week he plans to resign Oct. 31." The Houston Chronicle: has this report.

7th COA Released Opinions from Yesterday: Visit this link for the opinions.

6th COA Opinions Released Yesterday: You can access here yesterday's hand down list from the Sixth Court of Appeals.

4th COA Released Opinions: The Fourth Court of Appeals released 14 opinions today. See the released opinions here.

4th Court of Appeals Overturns Offensive Gesture Conviction: The AP report is here. You can access the opinion at this link. From the Houston Chronicle: The article to this headline: "`Shooting the bird' rude, crude but legal" can be found here.

MALDEF Joins Redistricting Battle: The Austin American Statesman has the story here.

"U.S. Supreme Court Will Hear Internet Porn Case:" The Legal Intelligencer has the story here.

Search & Seizure at the Boarders: Law.com has the following post in Today's Brief. "The U.S. Supreme Court granted cert Tuesday to a case that could set the tone for search and seizure policies at the nation's borders. At the heart of United States v. Flores-Montano are questions of what qualifies as reasonable suspicion and whether U.S. Customs officials need it to search vehicles. The case involves a California border stop during which officials removed a fuel tank and found 81.4 pounds of marijuana."

Profile of Judge Charles Holcomb: The Texas Bar has this profile on Judge Charles Holcomb.

Justice Scalia Recused From Pledge Case: The San Antonio Express News is reporting at this link that Justice Scalia announced Tuesday that he will not take part in the pledge case next year.

Attention Probate Lawyers: The San Antonio Express News has the following story about a family feud which could result in jail time.

Democrats' Laywer Predicts U.S. Supreme Court Involvement in Texas Redistricting: The San Antonio Express News is reporting here that "a lawsuit challenging the just-enacted Texas congressional redistricting plan might not be resolved until it reaches the U.S. Supreme Court."

Travis County Man Settles With County For Wrongful Conviction: "Ex-inmate who served 12 years for rape and murder charge to get $950,000." Read the story here.

Dallas "Suspect Who Escaped Now in Max Security:" The AP is reporting here that a "murder suspect who escaped from jail by climbing down a rope of bedsheets spent his first full day in confinement Tuesday following his recapture, with his new quarters described as a 'prison within a prison.'"

"Man Ordered to Speak English to Daughter:" A Nebraska judge has ordered "[a] Hispanic man who spoke to his 5-year-old daughter in Spanish...to use primarily English around the girl as a condition of his visitation rights." The AP has the story here.

Supreme Court Orders for Tuesday, October 14: here.

"150-Year Sentence for Sex Abuse :" The Austin American Statesman has the following story at this link.

"An assistant Sunday school teacher who sexually assaulted a 13-year-old girl has been sentenced to 150 years in prison.

Timothy Stone, 35, of Cedar Park pleaded guilty to five charges of aggravated assault and was sentenced to three consecutive 50-year terms. He met the girl during a mission trip with Hilltop Baptist Church. He will not be eligible for parole until 2078."

Texas Association of Business Has 7 Days: You can access here an Austin American Statesman article about the ongoing First Amendment battle of the Texas Association of Business which is now before the United States Supreme Court.

"Supreme Court Rejects Anti-Marijuana Case:" Access the AP report here.

"High Court to Decide if Pledge Is Legal:" The Austin American Statesman has this story.

"The Supreme Court said Tuesday it will decide whether the Pledge of Allegiance recited by generations of American schoolchildren is an unconstitutional blending of church and state. "

Texas Democrats' Motion: You can access here the motion filed by the Texas Democrats in federal court challenging the Republican backed map.

Death Penalty Reform Editorial from the New York Times:

Editorial published October 13, 2003 in The New York Times:

"Even as Congress was advancing long-delayed death penalty reforms last week, the Supreme Court was moving in the opposite direction, lending tacit approval to modern-day barbarism. The justices declined to review a lower court ruling allowing a deranged prisoner to be forcibly medicated to make him sane enough to be executed.

Public enthusiasm for the death penalty has been muted in recent years as the country learns more about how it is actually applied. And those stories continue surfacing, one more distressing than the next. A recent article in The Times pointed to a growing debate among legal and medical experts about the supposedly humane use of lethal injection to kill condemned prisoners, noting that Tennessee recently outlawed use of one of the chemicals for pet euthanasia.

The developments in Congress reflect the positive side of all these disclosures — a desire even among supporters of the death penalty to eliminate some of the most outrageous aspects of how it is applied. With crucial help from the House Judiciary Committee chairman, F. James Sensenbrenner Jr., and Representatives Ray LaHood and Bill Delahunt, a coalition of Congressional Republicans and Democrats has come up with a compromise to combat wrongful convictions in death penalty cases. The new legislation combines President Bush's initiative to reduce the backlog of biological evidence awaiting testing with a pale version of Senator Patrick Leahy's Innocence Protection Act, a measure that has languished year after year. The hybrid includes provisions to require the preservation of physical evidence in federal criminal cases, expand the availability of post-conviction DNA testing and help nudge states to raise the abysmal caliber of legal representation in capital cases. The bill has cleared an important hurdle, passing the House Judiciary Committee by a 28-to-1 vote. A vote by the full House is expected shortly.

No one should be deluded into thinking the measure is a cure-all, however. In the redrafting, for one thing, penalties for noncompliance with lawyering standards were replaced with a voluntary system of large financial incentives to goad states to bind themselves to federal guidelines. The effectiveness of the incentives depends largely on whether the bill is fully financed — a big if — and even then it is possible some states with more primitive death penalty practices may decline to participate.

More fundamentally, plenty of factors that contribute to the risk of executing the innocent were left unaddressed, like coerced confessions and the faulty recollection of eyewitnesses. Nor would the bill stop states from forcibly medicating deranged prisoners to get around the Eighth Amendment ban on executing the mentally incompetent — the serious constitutional issue sidestepped by the justices.

The truth is there is no cure-all for the ethical, moral and practical problems capital punishment raises — that is, short of a Supreme Court ruling finally abolishing the inherently cruel and unusual "machinery of death," as Justice Harry Blackmun termed it. It could be a long wait. In the meantime, the consensus reform bill now chugging through Congress is surely preferable to the alternative, which is for Congress to do nothing."

Public Hearing: "The State Bar of Texas will hold a public hearing, Oct. 15, at 10 a.m. in Austin at the Texas Law Center (1414 Colorado Street, Room 101), to discuss changes to the attorney grievance system."

HB 2688: Read here a memo from the Drug Demand Reduction Advisory Committee to the Texas District and County Courts at Law on "Legislation passed in this year’s regular session [which] changes the way certain drug-related offenses will be punished and sentenced under the Texas Controlled Substances Act. HB 2668 mandates community supervision with appropriate substance abuse treatment conditions for many drug-related offenses categorized as state jail felonies."

Texas Democrats Have Filed in Federal Court: The Texas AP is reporting that "Democrats have filed a motion in federal court seeking to prohibit the state from implementing the new Republican-backed congressional redistricting map." You can access the story here.

Texas Inmate Falls to His Death: Read here about how Texas inmate Terry Park Hodges "reportedly fell from a second-story window of the Tom Green County Justice Center."

"Supreme Court takes up gas-tank border smuggling dispute": The AP: Texas Wire is reporting here that the United States Supreme Court has agreed "to decide if border officers can randomly search gas tanks of vehicles coming into the country, security measures the Bush administration argued are important in the war on drugs and terrorism."

Andrea Yates Back on Suicide Watch: At this link the Austin American Statesman has an article stating that Andrea Yates is "slipping back into a psychotic state".

Tomorrow's Oral Arguments: The Texas Supreme Court will hear oral arguments in three cases tomorrow: South Western Bell v. Garza, Battaglia M.D. v. Alexander and Compaq v. Lapray.

The Texas Court of Criminal Appeals will hear oral arguments in five cases tomorrow (four capital murder direct review cases and one PDR assault case). The issues before the CCA in Wead include:

"1. THE THIRTEENTH COURT OF APPEALS ERRED IN EFFECTIVELY HOLDING A COMMENT ON APPELLANT'S FAILURE TO TESTIFY, DIRECT OR INDIRECT, CAN NEVER BE CURED BY INSTRUCTION TO DISREGARD.

2. THE THIRTEENTH COURT OF APPEALS ERRED IN CONDUCTING A HARM ANALYSIS UNDER RULE 44.2(a) ON ERROR THAT DOES NOT REACH CONSTITUTIONAL MAGNITUDE. AN ERRONEOUS COMMENT ON APPELLANT'S DEMEANOR THAT IS NOT A DIRECT COMMENT ON APPELLANT'S FAILURE TO TESTIFY, IS NON-CONSTITUTIONAL ERROR SUBJECT TO HARM ANALYSIS UNDER RULE 44.2(b).

3. THE THIRTEENTH COURT OF APPEALS ERRED IN FINDING HARM BASED HEAVILY ON THE "SHEER NUMBER OF THESE CASES" AND NOT ON THE FACTS OF THE SPECIFIC CASE.

4. (ground added by the Court) DID THE COURT OF APPEALS ERR IN HOLDING THAT THE STATE'S CLOSING ARGUMENT CONTAINED A COMMENT ON APPELLANT'S FAILURE TO TESTIFY?"

Supreme Court Orders: You can access here yesterday's orders from the Texas Supreme Court.

14th COA Opinions: You can access here today's released opinions by the 14th Court of Appeals in Houston.

Bar & Grill: Don't miss the Bar & Grill Show this Friday at the Paramount in Austin.

"Since 1992, a group of fun-loving Austin lawyers has produced the Bar & Grill Show, where lawyers spoof the legal system and themselves with songs and skits that depict a lighthearted look at the law. To date, Bar & Grill events and sales have raised over $300,000 for Volunteer Legal Services of Austin. "

You can access information on the show here. Tickets are still available through Star Tickets at 512-469-SHOW or www.startickets.com.

"Attorney General Abbott Announces New Project to Help Tarrant County Fathers Pay Child Support": The OAG has received a federal grant that will help provide employment services to Terrant County fathers. Read the press release here.

The Internet and Jury Summons: Travis County has been using the internet as a means for people to respond to jury summons. "It turns out people are more willing to serve on a jury if they can use the Internet to respond to the summons, at least in Travis County." Read the article here.

Strayhorn: "I never say never": The Austin American Statesman has an article here this morning about Strayhorn's loss of power under a Perry-sponsored Bill as-well-as her comments on running against Perry in 2006.

Strayhorn for Governor?: The Austin American Statesman has an article raising the question here.

Legal Battles for Redistricting Map: The Austin American Statesman has an article on the legal battles facing the final redistricting map at this link.

Court of Criminal Appeals Submission Schedule: Here is the Court of Criminal Appeals submission schedule for October 15.

Court of Criminal Appeals Issues List: Access the CCA's PDR list at this link

Court of Criminal Appeals Hand Down List: At this link you can access the CCA's hand down list from October 8, 2003.

10/10/03 Supreme Court Orders: Supreme Court of Texas Orders 10/10/2003

Proposed Changes to TRCP: At this link you can access the three proposed changes to the Texas Rules of Civil Procedure. The three proposed rule changes would affect settlement offers, class actions and referral fees.

"The Court requests the comments of the bench, bar and general public on the rules changes. Written comments may be mailed to Chris Griesel, rules attorney, P.O. Box 12248, Austin, Texas 78711, or may be faxed to the attention of the Rules Attorney at 512.463.1365 or e-mailed to chris.griesel@courts.state.tx.us."

Welcome: Welcome to the new weblog devoted to issues in Texas law. The purpose of this site is to provide the Texas bench and bar with information on issues affecting the Texas legal community. I believe you will find this law blog timely, informative and interesting. Among several major Texas newspapers and legal websites, the Texas Law Blog monitors the Supreme Court, 5th Circuit, Texas Supreme Court, Texas Court of Criminal Appeals, and the various Courts of Appeals. Please pass this link on to your colleagues and help me make the Texas Law Blog a success.


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