More information on the Baby Moses Law: The Texas Department of Protectice and Regulatory Services website has this page on frequently asked questions. The Baby Moses law is codified at Chapter 262 of the Texas Family Code.

The Baby Moses Project "was established to address an alarming increase in newborns being abandoned in perilous places. The mission of the project is to publicize a confidential, and safe alternative to newborn abandonment."

Please join me in welcoming Per Curiam to the blog world: Per Curiam "represents a new endeavor of two law students aiming to comprehend, criticize and improve the world in which we find ourselves. Some of the topics covered will be law, politics, current events, sports, movies and anything else that comes to mind on a particular day. Hopefully, some of the posts will be serious and others will be funny. Some of the posts may spark debate and we hope that all will inspire thought. Occasionally, we will post together our collaborative thoughts on a topic in a sort of 'per curiam' opinion-- unsigned but reflecting the view 'of the blog.' There are a number of well-established and highly informative weblogs today, some of which are listed on the side of this page. We hope this blog adds to the movement of which we are lucky to be a part- where anyone with a modem can express an opinion and anyone with a computer can educate himself or herself about almost any topic in the world."

I wonder if there will ever be a "per curiam" post with a dissenter?

"Questions linger in McVeigh case. FBI faces hard look at whether it missed evidence of accomplices": The AP has this report.

"Baby Moses law results mixed": The San Antonio Express-News reports:

Baby Hope was two days old when his mother smothered him by wrapping his face and arms in duct tape and stuffing his tiny body in a black plastic bag.

In February, his mother, Kenisha Berry of Beaumont, was sentenced to death for his murder, more than five years after his body was found in an apartment complex trash bin and the community named him Baby Hope.

Police linked Berry to the baby's death in 2003 after she abandoned another infant in a ditch. The baby girl survived, but hundreds of ant bites scarred her eyes, stomach and arms.

Texas passed the nation's first 'Baby Moses' law in 1999 to save children like Baby Hope, who died a year before it took effect.

The law offers parents immunity from prosecution if they turn over unwanted infants less than 60 days old at fire stations and hospitals. But the ongoing discovery of abandoned babies raises questions about its effectiveness.

'I wasn't even aware of all the details of the Baby Moses law, to be honest with you,' Port Neches Police Chief C.E. Marsh said after the January arrest of a 15-year-old girl whose baby was found dead in a duffel bag in her bedroom.

Fifteen babies have been legally surrendered in Texas since 1999, including five recently turned over to San Antonio authorities, according to the Baby Moses Project, which promotes the law.

But the numbers provided by this organization might not account for every infant saved by the law. Project director Justin Unruh said the figures come from the Texas Department of Family and Protective Services.

"Immigration is drawing line in sand within GOP": The San Antonio Express-News has this report.

"Independence celebration revisits its roots this year": The Fort Worth Star-Telegram reports here that "[e]very year, under the canopy of spreading live oak trees, thousands of Texas loyalists converge on bucolic Washington-on-the-Brazos, south of College Station, to celebrate the March 2, 1836, Texas Declaration of Independence. It is a state holiday -- Texas Independence Day. But it is also Texas Flag Day and Sam Houston Day. March 2 is a busy day."

"Report: Profiling allegations unfounded": The Fort Worth Star-Telegram reports here that "North Richland Hills received three racial profiling complaints last year, according to a report cited by Police Chief Tom Shockley. None was substantiated, Shockley told the City Council on Monday."

"Proposed amendment could end gun shows, some say": The Fort Worth Star-Telegram has this report.

"Lawsuits might hold up toll road": The Fort Worth Star-Telegram has this report.

"Victims in drug war fighting deportation": The Fort Worth Star-Telegram has this report.

"ACLU: Investigation of `sex slave' charges at prison was flawed": The Austin American-Statesman has this report.

"Three federal inmates escape from prison in Brownsville": The AP has this report.

"Pharmacist's refusal stirs debate. Rules vary on moral choice not to provide morning-after pill": The AP has this report.

"Roe no more, but still a voice on abortion. Norma McCorvey resurfaces on other side of issue that has defined her life": The Houston Chronicle has this report.

"High court to revisit age in executions. Debate pits scientific data against horror of crimes": The Houston Chronicle has this report.

"Republican shift means changing definition of Texas Democrat": "With Republicans holding all statewide elected offices and Texas Democrats struggling to regain their footing, this question persists: Who is today's Texas Democrat?" Here is the AP's answer.

"Dotson's murder trial set for August": The Fort Worth Star-Telegram reports here that "Carlton Dotson, the former Baylor University basketball player charged with murder in the death of teammate Patrick Dennehy, will go on trial in August. State District Judge George Allen set a tentative Aug. 9 trial date on Friday after lead defense attorney Russ Hunt said he needs additional time to study evidence. Hunt said he has reviewed '99 percent' of '10 to 15 pounds of documents.' The trial had been set for March."

"Mystery surrounds man's bid for retrial": The Fort Worth Star-Telegram has an article which begins: "[a] South Carolina man sought for questioning in a controversial child molestation case apparently does not have the eagle tattoo that the victim said she saw on her attacker's backside. Joe Walker, a former car dealer now living in the Charleston area, was being sought in a 1992 case that sent John Michael Harvey of Bedford to prison for 40 years despite his repeated claims of innocence."

"Sex tape triggers student's suspension": The Fort Worth Star-Telegram reports here that "[a] 16-year-old Southwest High School student was taken into custody and suspended from school Thursday after she allegedly showed classmates a videotape of herself and what appeared to be other juveniles engaged in sexual acts."

"FBI review of McVeigh case ordered": The AP reports here that "[t]he FBI on Friday ordered a review of some aspects of the 1995 Oklahoma City bombing investigation, reopening the question of whether Timothy McVeigh had more accomplices, government officials said. The FBI ordered agents to determine why some documents did not properly reach the bureau's Oklahoma City task force during the original investigation or get turned over to McVeigh's lawyers before his trial, officials said."

The grand jury. Is it a puppet?: The Houston Chronicle reports here that "Gov. Rick Perry on Friday said the 'appropriate authorities' should investigate Travis County District Attorney Ronnie Earle for his probe into possible political misuse of corporate money to help Republican legislative candidates. 'My concern is the extraordinary leaks that have come out of the grand jury system,' Perry said. 'When the news media finds out about issues going on in the grand jury even before subpoenas have been delivered to people, there's something gravely wrong with that system.' Earle said there have been no leaks out of the grand jury."

Houston Crime Lab News: The Houston Chronicle reports: "Panel tosses out crime analyst's lab suspension."

"Texas celebrates its former status as a nation": The AP reports here that "[t]he Lone Star state was once its own nation, a distinction Texas native Peter Armato wanted to celebrate with his New England neighbors. So, he threw a party last year in Providence, R.I., to honor Texas Independence Day, and the shindig came complete with spicy food, Blue Bell ice cream, Lone Star Beer and Jerry Jeff Walker's boot-tappin' tunes. 'In Providence, people are a little more mild mannered, a little more reserved, they don't know quite what to make of it. They love the Mexican food,' said Armato, a 50-year-old downtown development professional who has taken his Texas state of mind from coast to coast."

Texas Independence Day is this Tuesday (March 2).

This article made me think: What if I lived any where but Texas? How would I celebrate Texas Independence Day? Peter was right, you have to have Blue Bell ice cream (particularly cookies 'n cream). Jerry Jeff Walker is a must have as well but I would also include Pat Green, Cory Morrow, and Robert Earl Keen.

I think the article meant "Tex-Mex" rather than Mexican food but if it didn't, I would rather have Tex-Mex.

What? No BBQ? I would call the The Salt Lick and have them cater the party. In fact, I ate at the new Salt Lick 360 last night. This place has the best BBQ sauce! Lone Star Beer is a must. By the way, did you know that Pat Green puts Lone Star Beer in his cereal? I would also have Shiner Bock but I don't think I would put it in my cereal.

Oh, and where are the trucks? You can't forget the 2003 SD F-250 V8 (32 Valve Turbo Charged) Power Stroke Diesel Fx4!

"Judge rejects bid to lower Durst bail to $10,000": The Houston Chronicle reports here that "[a] judge refused Friday to reduce millionaire Robert Durst's bail on an evidence-tampering charge from $1 billion to $10,000. Durst defense attorney Chip Lewis told State District Judge Susan Criss that Durst is entitled to 'reasonable bond' in the case, but Criss stood firm. In December, Criss set bail at $1 billion on each of two counts of bail-jumping Durst faces."

"Judge rejects bid to lower Durst bail to $10,000": The Houston Chronicle reports here that "[a] judge refused Friday to reduce millionaire Robert Durst's bail on an evidence-tampering charge from $1 billion to $10,000. Durst defense attorney Chip Lewis told State District Judge Susan Criss that Durst is entitled to 'reasonable bond' in the case, but Criss stood firm. In December, Criss set bail at $1 billion on each of two counts of bail-jumping Durst faces."

"State OKs proposal to fill teachers gap. Plan would allow temporary certificates": The Houston Chronicle reports here that "[a] refugee from corporate America could be at your child's chalkboard this fall under a controversial program that would allow school districts to grant temporary teaching certificates to qualified college graduates."

"Appeals court rejects inmate's bias claim": The AP reports here that "[a]n appeals court has ruled against a black Texas death row inmate who claimed prosecutors stacked the jury with white jurors and that he was not allowed to present evidence of that bias. The Fifth Circuit Court of Appeals ruled Thursday that Thomas Miller-El failed to show clear and convincing evidence that the state court erred in finding there was no purposeful discrimination. Miller-El was condemned for the 1985 robbery-slaying of Douglas Walker, a desk clerk at the Holiday Inn-South in Irving, a Dallas suburb. The appellate court's decision came a year after the U.S. Supreme Court found ample evidence that the Dallas County district attorney's office was 'suffused with bias against African-Americans in jury selection.'"

"Trial set for August for former Baylor athlete": The AP reports here that "[a] former Baylor University basketball player charged with gunning down his roommate will go to trial in August. State District Judge George Allen on Friday set an Aug. 9 trial date for Carlton Dotson, 21, after defense attorneys said they need more time to review evidence."

"Competency trial scheduled for mother of beheaded children": The AP reports here that "[t]he mother of three South Texas children who were beheaded in an attack last year is scheduled for a competency trial on May 3 to determine if she is mentally fit to face prosecution in the deaths. Angela Camacho's defense attorney argues that the Mexican national was insane during the slayings on March 11. Camacho's common-law husband, John Allen Rubio, was sentenced to death in November for his role in the deaths. Rubio, 23, awaits an appeal date while on death row in Huntsville."

Flour Bluff Indep. Sch. Dist. v. Bass: Today, the Texas Supreme Court issued this per curiam opinion in a misidentification case. The Court held that "[t]he statute of limitations will be tolled in misidentification cases if there are two separate, but related, entities that use a similar trade name and the correct entity had notice of the suit and was not misled or disadvantaged by the mistake. Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex. 1999). Here, TASB and Flour Bluff were two distinct parties that did not operate under a similar trade name." The Court of Appeals had held that the statute of limitations is tolled in a workers' compensation appeal if the "proper defendant was cognizant of the facts of the lawsuit and was not misled or placed at a disadvantage by the appealing party's pleading error (misidentification)." Flour Bluff was the proper defendant and they were joined over one year after the statute of limitations had run. (To add insult to injury, Flour Bluff was not served for a year after it was joined).

Orders from the Texas Supreme Court: The Texas Supreme Court has issued this week's orders list.

Miller-El Affirmed: The United States Court of Appeals for the Fifth Circuit affirmed the conviction of Miller-El. The Court held that Miller-El "failed to show by clear and convincing evidence that the state court erred in finding no purposeful discrimination."

Today's Rule of Appellate Procedure: TRAP 10.1(b) Motions in the Appellate Courts:

10.1 Contents of Motions; Response.

(b) Response. A party may file a response to a motion at any time before the court rules on the motion or by any deadline set by the court. The court may determine a motion before a response is filed.

Today's Texas Legal History: A look at the history of the Texas Municipal Courts Association :

The Texas Municipal Courts Association's (TMCA) parent organization was organized in 1974 by a group of municipal court judges and prosecutors in the Harris County (Houston) area for the sole purpose of forming a viable support organization dedicated exclusively to serving Municipal Courts. The original charter filed in 1975 was for the 'Gulf Coast Association of Municipal Judges and Prosecutors, Inc.' but was amended in 1977 to be the 'Texas Municipal Courts Association'. The 1977 amendment also changed the purpose of the Association from 'To organize an Association of Texas Municipal Judges and Prosecutors...' to 'To organize an Association of Texas Municipal Courts personnel...[.]'

One of the most notable single acts of TMCA was to establish an organization for providing both educational and practical information and support to the judges, clerks, court administrators, and prosecutors who work in the municipal courts. In 1983, TMCA was selected by the Texas Supreme Court to receive and administer a grant to provide continuing legal education to Municipal Court personnel. In 1994, the authority to ward the legal educational funds was transferred from the Texas Supreme Court to the exas Court of Criminal Appeals. The Texas Court of Criminal Appeals selected TMCA to continue to receive and administer the grant funds.

To provide the continuing legal education, TMCA created the Texas Municipal Courts Training Center in 1983; in 1994 the name was changed to the Texas Municipal Courts Education Center (TMCEC).

...

Membership in TMCA is open to all Municipal Judges, Court Clerks, Deputy Clerks, Prosecutors, and all other Court Staff. TMCA believes that a strong membership is essential to continue to provide at no cost the quality programs, support, and materials provided in prior years.

"Judge: County must pay legal fees": "The San Antonio judge who decided in July there was no merit to launch a Court of Inquiry investigation into three Brazos County officials now has ruled the county is liable for one of those officials' legal fees." The Bryan-College Station Eagle has the rest of the story.

"Anti-abortion activist charged in masquerade": The Bryan-College Station Eagle reports here that "[a] Bryan anti-abortion activist was arrested Thursday after admitting he sent e-mails to city officials pretending to be someone else. Donald Lee Parsons, 67, was charged with a Class A misdemeanor for impersonating former Assistant City Attorney Julie Gannaway last August in an e-mail sent to the city manager and Bryan City Council."

"The Supreme Court Issues a Monumental Decision: Equal State Scholarship Access for Theology Students Is Not Required by the Free Exercise Clause": "FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court's decision this week in Locke v. Davey. As Hamilton explains, the case asked the Court to decide whether the State of Washington's scholarship program, which (pursuant to the state's Constitution) specifically excludes theology students, violates the federal Constitution's Free Exercise Clause. The Court, by a 7-2 vote, said no; Hamilton explains why, given the U.S. Constitution's structure and the Court's own precedents, she believe the Court's result was the right one."

".S. Would Block Oracle's PeopleSoft Bid": Reuters reports here that "U.S. antitrust authorities said on Thursday they would sue to block Oracle Corp.'s proposed $9.4 billion purchase of rival software company PeopleSoft Inc. . The U.S. Justice Department said the hostile takeover would hurt competition by eliminating one of only three players in the market for software sold to large business customers to manage finances and human resources." Texas has joined the lawsuit.

"Under Pressure": Jonathan Ringel of the Fulton County Daily Report has this look at the recess appointment of William Pryor to the 11th Circuit.

"Anti-abortion protesters not cited for violating city ordinance": The Waco Tribune reports here:

For the second week in a row, abortion opponents who have vowed to disregard a new city ordinance regulating protests were not cited when they broke the law by holding a worship service in front of a local abortion clinic.

About 50 people, including children, braved the chill and rain early Wednesday to participate in a meeting anti-abortion activists hold each Wednesday in front of the Planned Parenthood of Central Texas clinic at 1927 Columbus Ave. The facility, one of two Planned Parenthood clinics in Waco, performs abortions.

In the past, such demonstrations have merely been an annoyance to clinic workers and patients, and to the parents, children and staff members of the Waco Montessori School, which sits across the street. But under a city ordinance passed Feb. 3, the gatherings now violate the law.

The ordinance bars 'street activities and parades' within school zones during certain hours. Hours for the Montessori school zone, which encompasses Planned Parenthood's building, are from 7:30 to 8:30 a.m. and from 3:30 to 5:30 p.m. A violation of the ordinance is a Class C misdemeanor, which is punishable by a fine of up to $500 but not jail time.

City officials have said the ordinance was created for public safety and is not intended to target any school or group. However, many anti-abortion protesters say the code was written with them in mind and that it curtails their ability to spread their message.

Last week's protest was the first one held after the ordinance took effect. Waco Police Department officers attempted to hand out copies of the new law, but the Rev. Rusty Thomas, a leader in the local anti-abortion movement, instructed protesters not to take them. He then showed police a container that had the remains of a copy of the ordinance he had burned. Although protesters said they were willing to go to jail for their cause, no citations were issued.

A similar scenario unfolded Wednesday. Protesters gathered before the 7:30 school zone hour started and conducted a worship service that included songs, sermons and strong words against city officials who passed the new ordinance.

"Attorney general orders release of records": The AP reports here that "[d]etails about the Smith County sheriff's 'K-9 and Livestock' fund and its donors are public and must be released, the Texas Attorney General's Office said in an opinion issued Wednesday. The Tyler Morning Telegraph had filed a request under the Texas Public Information Act for information on the fund. Sheriff J.B. Smith had said he didn't believe that the account involved public funds as defined by the Texas Government Code and asked for a ruling. Smith contended that the search and rescue functions the account funded were not part of the department's official duties. 'We conclude tracking and detection of individuals are clearly among the duties of the sheriff's office as a law enforcement agency,' Assistant Attorney General Yen-Ha Le wrote. Smith's position that the fund was supported by private donations is irrelevant, the attorney general said. 'In either case, the expenditures were clearly made in connection with the sheriff's office's transaction of its official business,' the opinion said."

"Speed limit set at 60 mph for stretch of Texas 114": The Fort Worth Star-Telegram has an article which begins: "[a] spat between Westlake and the Texas Department of Transportation apparently ended last night -- but not before Mayor Scott Bradley condemned the agency for creating an 'imminent threat' to public safety. In an emergency meeting called by Bradley, the Board of Aldermen unanimously voted to follow a state study and make the speed limit 60 mph on a hotly disputed one-mile stretch of Texas 114."

Its our turn: The Fort Worth Star-Telegram reports here that "[d]efense lawyers are calling for their own boycott of three Tarrant County juvenile courtrooms to highlight what they say is the 'destructive nature' of a similar walkout by local prosecutors. In an open letter to Tarrant County judges this week, defense lawyers pledged to highlight their concerns by invoking the same right to move cases out of the courtrooms of associate juvenile judges."

"Services set for former state attorney general": The AP reports here that "[f]ormer Texas Attorney General Waggoner Carr, who died of cancer Wednesday, will be buried Saturday at Texas State Cemetery. Carr served as attorney general from 1963 to 1967. Services are scheduled at 1 p.m. Saturday at Tarrytown United Methodist Church in Austin."

"East Texas congressional candidate hurt in crash": The AP reports here that "[a]n East Texas congressional candidate was injured Thursday afternoon when his car left the road and crashed into some trees, authorities said. Senior Cpl. Bobby Bowlin of the Texas Department of Public Safety said Dr. Lyle Thorstensen, 55, of Nacogdoches suffered a broken leg and arm as well as cuts and bruises."

"Keystone Consolidated Industries files in bankruptcy court": The AP reports here that "Keystone Consolidated Industries Inc. has filed for Chapter 11 bankruptcy protection, according to a published report. The parent company of Bartonville-based Keystone Steel & Wire Co. filed Thursday in U.S. Bankruptcy Court in Milwaukee, the (Peoria) Journal-Star reported. The Dallas-based steelmaker asked the court to approve $60 million in financing to meet expenses during a reorganization process that could take months, President David Cheek wrote in a letter to employees."

"Zaffirini foe questions payments": "A political opponent of state Sen. Judith Zaffirini is criticizing the thousands of dollars paid to her to teach communications seminars for government employees in her hometown. 'It just doesn't look right, a state senator receiving funds from these kinds of government entities that receive money from the state,' said Raymond Bruni, an area rancher challenging the veteran Laredo senator in the March 9 Democratic primary." The AP has the rest of the story.

San Antonio City Council Considers Change in Term Limits: The San Antonio Express-News reports here that "[y]ears of debate and weeks of infighting ended Thursday when the City Council unanimously approved ballot language that could fundamentally change local government. The question now goes to San Antonio voters. They will go to the polls May 15 to decide if the nation's strictest term limits should be relaxed, if council members should get professional wages and if politicians bounced out by old term-limit restrictions should be able to make City Hall comebacks. The proposals the council settled on would increase the current two, 2-year terms to three, 3-year terms."

"Lawmakers question feasibility of workers' comp reform plans": The Houston Chronicle has this report.

"Grand jury given Craddick records. Panel investigating 2002 elections": The Houston Chronicle reports here that "House Speaker Tom Craddick turned over a stack of pledge cards and letters Thursday to a Travis County grand jury investigating whether any laws were broken in the 2002 legislative campaign and the speaker's race. Roy Minton, who represents Craddick, said he saw nothing in the box of documents that caused him concern"

"Suspended crime lab workers blast probe tactics": "Employees suspended from the Houston Police Department's troubled crime lab issued the strongest objections to date over punishment this week, with one accusing internal investigators of intimidating low-level employees for problems that are the result of bad management." The Houston Chronicle has the rest of the story.

"Family of doctor killed in elevator accident settle suit": The Houston Chronicle reports here that "[t]he family of a doctor partially decapitated in an elevator accident settled for an undisclosed amount with the company that maintained the elevators at Christus St. Joseph Hospital, the family's attorney said Thursday. Howard Nations, representing Hitoshi Nikaidoh's family and estate, said Delaware-based Kone Elevators agreed to settle the wrongful-death lawsuit after 12 hours of negotiations."

"Doctor: Man tied down in Wright attack": "Jeffrey Andrew Wright was high on cocaine and his arms and legs probably were tied to the bed when his wife stabbed him at least 193 times in the face, neck and chest, a doctor testified Thursday." The Houston Chronicle has the rest of the story.

Thoughts on appellate advocacy: This is a list I have been working on. It remains a work in progress but I wanted to share it with you.

1. Prepare. Prepare. Prepare.
2. Be confident. If you have prepared you will be confident.
3. Composure. If you are confident you will be composed.
4. Focus. If you are composed you will be focused.
5. Credible. If you are focused you will be credible.
6. Persuasive. If you are credible you will be persuasive.

Back at UT law tonight: I'm back at the University of Texas School of Law tonight as a judge for the 1L moot court competition.

"Court lets states deny aid for religious study": The Christian Science Monitor has this report.

"Trial begins in rollover of Ford church van": "Reconstruction of an accident that killed three church members during a trip to Mexico showed that a tire tread fell off, causing a wheel to dig into roadside dirt and sending the van tumbling into a 7-foot ravine, Ford Motor Co. lawyers said today." The AP has the rest of the story.

"Autopsy photos shown in court": The AP reports here that "[p]rosecutors today showed autopsy photos in the Houston trial of a woman charged with killing her husband by stabbing him 193 times. Susan Wright is charged with murder. The defense says she killed her husband in self defense last year after he beat and raped her in their home -- while on drugs. A medical examiner today testified Jeffrey Wright had cocaine in his system at the time of death. His body was discovered buried in the family's yard. Prosecutors say Susan Wright killed her spouse because she had religious concerns about getting a divorce and wanted to benefit from his life insurance policy."

The Houston Chronicle reports: "Medical examiner says husband on cocaine when stabbed 193 times."

"DA zeroes in on Delay's political action committee": The AP has this report.

"House Passes Unborn Victims Legislation": The AP reports here that "[t]he House voted Thursday to treat attacks on a pregnant woman as separate crimes against both her and the fetus she is carrying. Critics say it would undermine abortion rights by giving fetuses new federal legal status. Passage of the Unborn Victims of Violence Act was actively backed by the White House and President Bush's conservative supporters. Following enactment of the law banning 'partial birth' abortions last year, the bill is this year's prime measure dealing with the unborn. It passed 254-163 after the House rejected a Democratic-led alternative that would have increased penalties for attacks on pregnant women in which the fetus is injured or killed without conferring new rights on fetuses."

5th Circuit Opinion: Today, the United States Court of Appeals for the Fifth Circuit vacated a certification order in a class action and remanded to the district court for findings of fact. Here, the "district court certified a class without any findings of fact, legal analysis, or even a cursory reference to Rule 23's requirements [and] [c]onsidering the deferential review provided a district court's decision to certify a class and the burden on the plaintiff to meet each of the requirements of Rule 23, it is improper for a district court to certify a class action without first demonstrating that the plaintiff has satisfied each of the requirements of Rule 23." The Fifth Circuit held that "when certifying a class a district court must detail with sufficient specificity how the plaintiff has met the requirements of Rule 23." The footnote to this holding provides:

As a plaintiff’s request for class certification must fail if any one of Rule 23's requirements is not met, in an order denying class certification the district court need only detail, with sufficient specificity, why the plaintiff failed to satisfy any one of Rule 23's requirements. However, if the plaintiff failed to satisfy more than one of Rule 23's requirements, prudence would suggest that the district court detail why the plaintiff failed to meet each of those requirements.

Today's Texas Legal History:

[Thomas Campbell] Clark joined the [United States Supreme Court] at the beginning of the civil rights movement and consistently voted in favor of integration. In Sweatt v. Painterqv (1950) Clark's support of the majority opinion, which ordered the integration of the University of Texas law school, was particularly important. He also wrote the opinion in Terry v. Adams (1953), which struck down the white primaryqv in Texas. In 1954 he joined the unanimous decision in Brown v. Board of Education of Topeka, which declared racial segregation in public schools unconstitutional. A decade later he wrote an opinion for the unanimous upholding of the 1964 Civil Rights Act in Heart of Atlanta Motel, Inc. v. United States.

Clark's background of supporting federal authority was critical in extending federal constitutional protections in other areas. In Mapp v. Ohio (1961), Clark, the former federal prosecutor, extended the exclusionary rule to prevent the use of illegally seized evidence in criminal trials by state officials. Here he extended the protections of the Fourth Amendment to defendants in state trials and thus limited the powers of the states. In his opinion striking down prayer and Bible reading in public schools in School District of Abingdon v. Schempp (1963), Clark spoke as a justice from the 'Bible Belt,' reaffirming that 'we are a religious people' but asserting that prayer should be kept out of public schools. In concurring in Baker v. Carr (1962), Clark ruled against state legislative apportionment practices that were discriminatory.

In 1967 his son William Ramsey Clark was appointed attorney general by President Lyndon B. Johnson.qv To avoid any conflicts of interest in cases his son might argue, Justice Clark retired from the bench. At the suggestion of Attorney General Ramsey Clark, Justice Tom Clark's seat was filled by Thurgood Marshall, the first black to serve on the Supreme Court. After retiring, Clark served on eleven of the United States circuit courts of appeals and in 1968 was appointed the first director of the Federal Judicial Center, where he studied the judicial system and worked for improvements in its administration. He also served as chairman both of the American Bar Association Section of Judicial Administration and of the National College of State Trial Judges. He died in New York City on June 13, 1977.

Today's Rule of Evidence:

TRE 201: Judicial Notice of Adjudicative Facts:

(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When Discretionary. A court may take judicial notice, whether requested or not.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing Jury. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

You have got to be kidding me: The AP reports here that "German prosecutors said Thursday they are investigating a student for stealing electricity after he plugged his laptop into a train station electrical socket and used 0.2 euro cents, or a quarter of a U.S. cent's worth of power. The 23-year-old man, whose identity wasn't released, was seen by police officers connecting the computer at the station in the central city of Kassel late one evening last November. Suspecting that he had stolen the laptop, officers arrested him after he boarded a tram outside. He proved the computer was his own, but prosecutors still opened an investigation on suspicion of 'removing electrical energy.'"

De Novo: The February 2004 issue of De Novo is now available. (Subscription required).

"It's time to decide on term limits": The San Antonio Express-News reports here that "[c]onfronted with perhaps the biggest policy issue to arise in more than a decade, a divided City Council will try to forge a consensus today on new term limits and better pay for San Antonio politicians.
And it's down to the wire. The council must reach agreement today in order to put the reforms on a May 15 referendum. If they fail, the issue won't reach voters until at least November."

"The Limits of States' Rights Rhetoric": The Legal Fiction Blog has this post.

UK Supreme Court: The UK Criminal Justice Weblog reports here on the potential costs of a new Supreme Court building.

"Howard Stern Dropped from Clear Channel Stations": Reuters reports here that "[r]adio station giant Clear Channel Communications Inc. said on Wednesday it was dumping nationally syndicated shock jock Howard Stern from its stations under a new 'zero tolerance' policy toward indecency. In dropping Stern from its six radio outlets that carry his show, Clear Channel cited his interview on Tuesday with Rick Salomon, the man who was filmed having sex with hotel heiress and TV reality star Paris Hilton in a video widely distributed on Internet porn sites."

"How Do Washington SuperLawyers Work? The Inside Scoop, As Revealed By David McKean's New Biography Of Tommy Corcoran": "FindLaw columnist and former counsel to the President John Dean discusses the fascinating character of the Washington 'SuperLawyer,' as exemplified by FDR-administration player Tommy Corcoran. Relying on David McKean's recently-released biography of Corcoran -- as well as McKean's earlier book on Clark Clifford -- Dean draws a portrait of the Washington SuperLawyer as powerful, influential and at times, corrupt."

"Waiting at the Chapel": The Recorder reports here that the California Attorney General will ask the California Supreme Court to uphold the State's definition of marriage.

"Judge rules A&M can't punish student hazers": The San Antonio Express-News has this report.

"Court OKs Denial of Divinity Scholarships": "The Supreme Court, in a new rendering on separation of church and state, voted Wednesday to let states withhold scholarships from students studying theology. The court's 7-2 ruling held that the state of Washington was within its rights to deny a taxpayer-funded scholarship to a college student who was studying to be a minister. That holding applies even when money is available to students studying anything else." The AP has the rest of the story.

"Supreme Court Upholds Ban on Religious Scholarships": Tony Mauro of the Legal Times has this report on yesterday's ruling.

"Judge to decide if lawsuit against D/FW continues": The Fort Worth Star-Telegram has this report.

"Investigation of '02 races is far-reaching": The Fort Wort Star-Telegram has an article which begins: "[t]he release of more than 40 subpoenas Wednesday revealed the vast scope of a criminal investigation into the campaign fund-raising tactics that fueled the 2002 Republican takeover of the Texas House. Among those named in the new court records were a top aide to Gov. Rick Perry, state Rep. Bill Zedler of Arlington and the daughter of U.S. House Majority Leader Tom DeLay, R-Sugar Land."

"Prof: Capelo not unethical. Teacher says attorney didn't cross line defending company parents sued": The Corpus Christi Caller-Times reports here that "[l]aw professor Fred Moss from Southern Methodist University's Dedman School of Law said a situation in which a son represents the company his parents are suing would be 'pretty unusual.' Moss said if all parties knew and signed off on the relationship, there would be nothing unethical."

Conflict of interest? You bet.: The Corpus Christi Caller-Times reports here that "Citgo Refining Corp. says state Rep. Jaime Capelo didn't disclose that his parents were among the people suing the company when it retained him as an attorney in the case. 'Citgo was never advised by Mr. Capelo that his mother was a plaintiff,' Citgo spokeswoman Jennifer Hill said Wednesday. 'We never consented to Mr. Capelo's mother or any of his relatives being plaintiffs."

"Yates can't outline false testimony in trial record": The Houston Chronicle reports here that "[t]he Court of Criminal Appeals rejected an appeal Wednesday by attorneys for Andrea Yates to supplement her trial record with more information about false testimony given by a prosecution witness. In affirming a similar ruling in December by the 1st Court of Appeals, the state's highest criminal court ruled that the current trial record will stand."

"Perry campaign to fund part of trip. Will foot expenses for staffers on recent Bahamas retreat": "Republican Gov. Rick Perry's campaign will pay staff expenses for a trip to the Bahamas over Presidents Day weekend that was shared by large donors, political consultants and school finance advisers, a spokesman said." The AP has the rest of the story.

Governor meets with agencies' leaders in secret. New council bucks tradition": The Houston Chronicle reports here that "Gov. Rick Perry on Wednesday convened the first meeting of the Governor's Management Council, and open-government advocates promptly criticized him for locking the public out of the proceedings. The new council consists of the governor and the heads of 11 'executive branch' agencies that implement policies for education, health and human services, transportation, insurance, environmental concerns and more."

"Students head to polls early after dispute": "About 100 students showed up under cold, rainy skies Wednesday for the first day of early voting at Prairie View A&M University after a federal judge reaffirmed their right to vote locally." The Houston Chronicle has the rest of the story.

"Subpoenas aim to find DeLay role with PAC. Lawmaker's daughter included on long list of committee workers": The Houston Chronicle reports here that "[a] slew of subpoenas released Wednesday show Travis Country prosecutors are trying to determine how deeply involved U.S. House Majority Leader Tom DeLay was in the possible criminal misuse of corporate funds in the 2002 legislative campaign. Nearly 50 subpoenas -- some issued Tuesday and others dating back to last October -- were made public as part of the ongoing investigation into Texans for a Republican Majority, a political action committee formed by DeLay, R-Sugar Land. The subpoenas seek testimony and documents from the committee's researchers, political consultants and fund-raisers, including DeLay's daughter, Danielle Ferro."

"Prosecutors act out attack in Wright trial. Judge overrules objections": The Houston Chronicle reports here that "Susan Wright sobbed Wednesday as two prosecutors acted out their version of how she stabbed her husband 193 times on her bloodstained bed."

CCA Hand Down List: Here is today's hand down list from the Court of Criminal Appeals. The Court denied Andrea Yates's PDR.

CCA Opinions: The Texas Court of Criminal Appeals did not release any opinions today.

Howard Bashman's coverage of today's Supreme Court opinions: Here is Bashman's coverage.

"Attorneys act out wife stabbing husband in bed": The Houston Chronicle reports here that "Susan Wright sobbed during her murder trial this morning as prosecutors brought her bloodstained bed into the courtroom and graphically demonstrated their version of how Wright tied up her husband and stabbed him 193 times."

Results from the 2004 State Bar of Texas Judicial Poll: The results from the State Bar's Judicial Poll show that State Bar members support Justice Paul Green more than 2-to-1 over incumbant Justice Steven Smith. I wonder if it has anything to do with the following:

Tacky, Tacky, Tacky. An update to Tacky, Tacky, Tacky. Code of Fair Campaign Practices post. Justice Smith's response to Dean Piatt's letter. Gov. Perry has endorsed Justice Green for Place 5 on the Texas Supreme Court. Justice Smith's response to Gov. Perry's endorsement of Justice Green.

No oral argument today at the Texas Supreme Court: The Texas Supreme Court will hear arguments in one case next Wednesday.

Today's oral arguments at the Texas Court of Criminal Appeals: It will be a very busy day today for the nine judges of the Texas Court of Criminal Appeals as they hear oral arguments in six cases. The judges will hear four cases in the morning session and two in the afternoon session. Five cases will be submitted without oral argument.

Today's oral arguments at the United States Supreme Court: The Court will hear oral arguments in two cases today.

United States v. Flores-Montano, No. 02-1794:

Question Presented: Whether, under the Fourth Amendment to the United States Constitution, customs officers at the international border must have reasonable suspicion to remove, disassemble, and search a vehicle's fuel tank for contraband.

Republic of Austria v. Altmann, No. 03-13:

Does the expropriation exception of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1605(a)(3) afford jurisdiction over claims against foreign states based on conduct that occurred before the United States adopted the restrictive theory of sovereign immunity in 1952?

"Boy Scouts Access Issue Is Back Before Supreme Court": Tony Mauro of the Legal Times reports:

As debate rages over gay marriage, the Supreme Court will soon weigh whether the Boy Scouts may be denied access to government benefits or facilities because of the group's exclusion of gays. In the case before the high court, Connecticut excluded the Scouts from a state employee charitable campaign that funnels payroll donations to approved groups.

"Justices Hear Pa. Death Penalty Appeal": Shannon Duffy of The Legal Intelligencer reports:

With the fate of Pennsylvania's death row inmates on the line, the U.S. Supreme Court focused Tuesday on whether the state's procedures violated Mills v. Maryland, appearing likely to upset a 3rd Circuit opinion overturning George Banks' death sentence on grounds that the verdict form and instructions might have led jurors to believe they could not vote against the death penalty unless all 12 agreed on at least one "mitigating" circumstance.

"The Night Before the Morning After: Why Has the FDA Delayed Approval of Over-The-Counter Emergency Contraception?": "FindLaw columnist and Rutgers law professor Sherry Colb discusses the reasons why the FDA has not yet approved the so-called "morning after" bill, which prevents conception for up to 72 hours after sex. Colb argues that a number of the rationales for withholding approval simply make no sense -- and that others are either disingenuous, or unpersuasive when closely examined."

"March 2 is a busy day.": "Every year, under the canopy of spreading live oak trees, thousands of Texas loyalists converge on bucolic Washington-on-the-Brazos, south of College Station, to celebrate the March 2, 1836, Texas Declaration of Independence. It is a state holiday -- Texas Independence Day. But it is also Texas Flag Day, Sam Houston Day and primary election day. March 2 is a busy day." The Fort Worth Star-Telegram has the rest of the story.

"DeLay calls fund raising inquiry partisan politics": The Fort Worth Star-Telegram reports here that "House Majority Leader Tom DeLay blasted Travis County District Attorney Ronnie Earle on Tuesday as a 'runaway district attorney' for the widening investigation into campaign fund raising that helped elect a Republican majority to the Texas House in 2002. In unusually blunt language, DeLay, R-Sugar Land, lashed out at Earle over the investigation of a DeLay-formed group, Texans for a Republican Majority Political Action Committee, at his weekly news conference."

You will want to read this if you have received a ticket on Texas 114 recently: The Fort Worth Star-Telegram reports here that "[t]own and state officials are sticking to their guns in the dispute over how fast motorists may drive on a stretch of Texas 114. In a sharply worded news release this week, Westlake Town Manager Trent Petty insists that the speed limit of the contested 1-mile stretch is 50 mph, as provided by an ordinance passed in March 2000. But Terry Sams, an operations director with the Texas Department of Transportation, maintains that the speed limit between Trophy Lake Road and Trophy Club Drive is 70 mph. She says citations written for that stretch of highway for going faster than 50 mph are invalid."

"No oral arguments slated in Roe case. Law group opposition won't be heard": The Houston Chronicle reports here that "[a] motion to reconsider the U.S. Supreme Court case that legalized abortion 31 years ago is going forward without oral arguments or the legal views of a group of Texas law professors opposed to reopening long-decided cases. The 5th U.S. Circuit Court of Appeals said last week it would hear oral arguments next Tuesday in New Orleans in an appeal by Norma McCorvey, who took the pseudonym Jane Roe in the landmark Roe v. Wade case. But the court reversed that decision and now will only review written pleadings submitted by McCorvey's lawyers, according to a one-page order issued Monday by Circuit Judge Edith H. Jones of Houston. The court could rule at any time, according to lawyers involved in the case."

"A&M barred from punishing group over hazing": The Houston Chronicle reports here that "[a]ate district judge has stopped Texas A&M from punishing 72 cadets over a hazing incident and ordered the school to redo investigative hearings if it seeks any further disciplinary action. Judge Richard W.B. Davis of Bryan found the school violated the students' due process rights and issued a permanent injunction against the school late Monday. The order came after 23 students sued the school last summer."

"Waller County DA apologizes in vote flap": The Houston Chronicle reports here that "[i]n a proposed agreement awaiting a federal judge's signature, Waller County District Attorney Oliver Kitzman reaffirms the right of Prairie View A&M University students to vote locally and promises to meet with them before the March 9 primary."

"Marriage amendment is a hit in Austin. Texas lawmakers would likely approve measure if it can get out of Washington": The Houston Chronicle reports here that "[o]dds are good the current Texas Legislature would back a constitutional amendment banning gay marriage should Washington unite on the issue. Last spring, the state's first Republican-dominated Legislature in modern times passed its own 'defense of marriage' act by hefty margins. Senate Bill 7, sponsored by Sen. Jeff Wentworth, R-San Antonio, and Rep. Warren Chisum, R-Pampa, states that Texas will not recognize same-sex marriages or civil unions performed in other states. 'The bill virtually stopped gay marriage from being recognized in the state of Texas,' Chisum said Tuesday. 'Our statute says one man, one woman.'"

The Fort Worth Star-Telegram reports: "Proposed ban on gay marriage spurs discussion."

"Justices order Texan be taken off death row. A majority had concluded prosecutors concealed links between police and two witnesses": The San Antonio Express-News reports here that "[a] Texarkana man who came within minutes of a lethal injection last year was ordered off Texas' death row by the U.S. Supreme Court on Tuesday, though a prosecutor vowed to press anew for his execution. A court majority concluded Bowie County prosecutors concealed links between police and two witnesses at the trial of Delma Banks, Jr., 45, who resides in the Livingston state prison unit for inmates sentenced to death. The high court stayed Banks' execution in March 2003 after he had eaten what he thought was his last meal, less than 10 minutes before he was to be strapped to a gurney in Huntsville. On Tuesday, the court ruled 7-2 to overturn Banks' death sentence. 'When police or prosecutors conceal significant exculpatory or impeaching material in the state's possession, it is ordinarily incumbent on the State to set the record straight,' Justice Ruth Bader Ginsberg wrote for the majority. James Elliott, a Bowie County assistant district attorney, said the county would continue to seek death for Banks, convicted of fatally shooting Richard Whitehead, 16, near Texarkana in April 1980."

The Fort Worth Star-Telegram has this report.

"Court Blocks Reverse Age Discrimination": The AP reports here that "[a]ge has its benefits, the Supreme Court said Tuesday, ruling that younger workers can't sue their employers when older colleagues get preferential treatment. In a 6-3 decision that affects tens of millions of workers, the justices said the law that protects older employees from age discrimination doesn't apply in reverse."

"Utilities sue power provider over wholesale pricing": "A local utility's dispute with its main power provider is shedding light on the dynamics of Texas' saturated wholesale electricity market, where cost differences of less than a cent per kilowatt can make or break deals worth millions of dollars. The Kerrville Public Utility Board filed a lawsuit last week challenging the Lower Colorado River Authority's interpretation of contract clauses that set the amount of electricity the utility must buy in the future." The San Antonio Express-News has this report.

"Laredo finding that politics does make strange bedfellows. Strained ties don't stop Demos from backing Cuellar in Dist. 28.": The San Antonio Express-News has this report.

UT Law's First Year Moot Court Competition: Tonight I will be at the University of Texas School of Law judging the first year moot court competition for the Board of Advocates.

Texas Bar Exam: Good luck to all of those taking the February Bar Exam today, tomorrow, and Wednesday.

Today's Texas Legal History - Who am I?: I was born in Marion, Alabama in 1865. I graduated from Baylor University in 1887 and taught school in Durango while I studied law. In 1889 I moved to Fort Worth to practice law and that next year I was appointed assistant county attorney of Tarrant County where I served until 1894. I was the Tarrant County Attorney from 1900-1904. From 1911-1919 I represented the 13th District in the Texas Senate. I was elected to the Texas Court of Criminal Appeals in 1918, 1924, 1930, and 1936. I am in the Texian Who's Who Volume I. I am burried in the Texas State Cemetery. Who am I?

Bashman's coverage of today's opinions: Howard Bashman has the following post on the five opinions released today by the United States Supreme Court.

Supreme Court Reverses Banks: Justice Ginsburg delivered the opinion of the Court (joined by Rehnquist, Stevens, O'Connor, Kennedy, Souter, and Breyer. Scalia and Thomas joined part III. Thomas filed an opinion concurring in part and dissenting in part in which Scalia joined). Delma Banks, Jr. is incarcerated on Texas' death row.

5 Opinions Released Today from the United States Supreme Court: The opinions of the Court are now available.

Today's Texas Rule of Evidence: Rule 509(b): Physician-Patient Privilege--Limited Privilege in Criminal Proceedings.

There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

Why? "[T]he need for accurate and complete evidence in a criminal proceeding has been assessed as more important than the privacy interests fostered by these privileges." See Cathy Cochran, Texas Rules of Evidence Handbook 488-89 (5th ed. 2003).

Which FRCP are you?: Take this quiz to find out.

[Link from Distorted Veracity].

"San Francisco Takes Center Stage by Permitting Gay Couples to Marry:The Legal Questions the City's Actions Raise": "FindLaw columnist and Hofstra law professor Joanna Grossman explains the legal backdrop to San Francisco's mayor's decision to direct that marriage licenses be granted regardless of gender or sexual orientation. Grossman explains why Governor Schwarzenegger has asserted that such marriages are contrary to state law -- and why the mayor and others believe that law is contrary to the California Constitution. She also details the status of the three different suits that have been brought touching on this issue, and explains why the City is not making federal constitutional claims, only state ones. Finally, she discusses the status and significance of the same-sex marriages performed so far."

The United States Supreme Court will hear oral arguments in two cases today:

Jones v. R.R. Donnelley & Sons Co., No. 02-1205:

Question Presented: Whether in a 1996 lawsuit brought under 42 U.S.C. § 1981 alleging race discrimination in termination of employment, and maintenance of a racially hostile work environment, the appropriate statute of limitations is the 'catch-all' four-year period enacted by Congress in 1990 and codified at 28 U.S.C. § 1658, or the personal injury statute of limitations of the forum state?

Beard v. Banks, No. 02-1603:

Questions Presented: 1. Does this Court's decision in Mills v. Maryland, 486 U.S. 367 (1988) constitute a new rule of law that cannot be applied retroactively to award sentencing relief to a prisoner whose conviction became final before Mills was announced? 2. If Mills applies retroactively, where a state supreme court has rejected a Mills challenge because neither the trial court's instructions nor the verdict form advised the jury that it must be unanimous as to the existence of mitigating circumstances and, to the contrary, made clear that unanimity was required only to find aggravating circumstances and to impose a sentence of death, is that decision a reasonable application of this Court's precedent?

"Still a Secret. No comment as U.S. Supreme Court refuses to hear habeas corpus case of Florida man detained for five months after Sept. 11": Dan Christensen of the Miami Daily Business Review has this report.

"Jim Wells DA fight not first for men. Ex-judge Canales opposes Garza, whom he is suing": The Corpus Christi Caller-Times reports here that "[t]wo Jim Wells County political powerhouses face each other in the 79th State District Attorney's race - former 79th State District Judge Terry A. Canales, and the incumbent, Joe Frank Garza."

"Oral arguments on Roe canceled": The San Antonio Express-News reports here that "[a] federal appeals court on Monday canceled a hearing that would have given the Jane Roe of Roe vs. Wade fame a chance to argue that her decades-old landmark abortion case should be reopened and reversed. The cancellation represented an about-face by judges at Fifth Circuit Court of Appeals, who are reviewing what is essentially an unorthodox attempt to overturn the 1973 Supreme Court decision legalizing abortion. Signed by Circuit Judge Edith H. Jones of Houston, the order offered no explanation for why judges selected the case to get the extra attention that comes with oral arguments and then, a week before the hearing, said never mind. San Antonio's Edward C. Prado and Jacques L. Wiener Jr. of Shreveport, La., are the other judges on the panel that will now rely only on written briefings to decide whether the case can be reopened."

"Early voting starts today": The San Antonio Express-News reports here that "[e]arly voting is underway in San Antonio and throughout the state for the March 9 primary. Unlike election day, when registered voters must report to assigned polls, early votes can be cast at any polling site. There are several races on the ballot, including the presidential primary and congressional districts. Early voting continues through March 5."

"Perrys spend night at the White House": The Fort Worth Star-Telegram reports here that "Gov. Rick Perry made a whirlwind trip to Washington on Sunday and Monday, attending several events during the National Governors Association's winter meeting and staying Sunday night at the White House. Perry and his wife, Anita, attended the White House state dinner that President Bush held for the governors Sunday and enjoyed Bush's hospitality in the residence. Perry's friendship with Bush dates to 1998, when Bush was re-elected Texas governor and Perry was elected lieutenant governor. Perry succeeded Bush when Bush was elected president in 2000, and Perry was elected in 2002."

"Former Weatherford College professor files federal lawsuit": The Fort Worth Star-Telegram reports here that "[a] former Weatherford College professor has filed a federal lawsuit against the college, its president, past and present board members, some faculty and administrators, claiming that his First and 14th Amendment rights were violated during his employment. Morri Hartgraves, who was terminated Feb. 18, 2002, in what Hartgraves and his attorney described as a kangaroo court 'that amounted to nothing more than a legal lynching,' says in his lawsuit that his freedoms of speech and association were violated. In a telephone interview Monday, college President Don Huff called Hartgraves' lawsuit 'a fabrication.'"

"Judge puts off decision in botulism-outbreak lawsuit": "A state district judge asked Monday for more information before deciding whether the state Health Department had the authority to take a discount grocer to court after a botulism outbreak in 2001 in Denton and Tarrant counties." The Fort Worth Star-Telegram has the rest of the story.

"Lawyer gets 5-day jail sentence for fatal crash": The Houston Chronicle reports here that "[a] Houston defense lawyer who caused a downtown car wreck that killed a banker from The Woodlands was sentenced Monday to five days in jail and eight years' probation. Brian Coyne, 58, also must pay a $10,000 fine and perform 350 hours of community service. He pleaded guilty to criminally negligent homicide in December and could have faced up to 10 years in prison. Coyne had been drinking margaritas on the afternoon of Jan. 30, 2003, before getting into his car, investigators said."

"Denial of emergency contraception for Texas woman raises moral, legal questions": The AP reports here that "[a] rape victim, wanting to guard against an unwanted pregnancy, tried to fill a prescription for the so-called morning-after contraceptive pill at an Eckerd pharmacy. But in a decision that cost him his job, pharmacist Gene Herr, citing religious convictions, turned her away. Herr's decision and Eckerd's response angered people on both sides of the abortion debate, reigniting a discussion over whether pharmacists should be able to follow their religious and moral beliefs when dispensing drugs."

"Slave's victory in court found in documents. Harris County judge saves lawsuit from deterioration": The Houston Chronicle has this report.

"Halliburton faces criminal investigation": The Houston Chronicle reports here that "[t]he Pentagon has launched a criminal investigation into possible fraud connected with Halliburton Co.'s assignment to truck fuel into Iraq. The Defense Criminal Investigative Service agreed to examine Halliburton subsidiary KBR and its relationship with a Kuwaiti subcontractor, Altanmia Commercial Marketing Co., at the urging of Pentagon auditors who had identified possible 'irregularities' related to the gasoline purchases."

2004 President-Elect Candidates: The State Bar of Texas Board of Directors has appraved the nominations of Richard T. Miller and Eduardo R. Rodriguez as President-Elect candidates. Here are their biographies.

The results are in: The results from the 2004 Judicial Poll conducted by the State Bar of Texas are in. (More to come).

Today's Texas Legal History: The Handbook of Texas Online has the following excerpt in a piece on Women and the Law:

From the time of the early republic, a single woman (feme sole) enjoyed basic civil liberties. Although she could not vote or serve on juries, she had the right to make contracts, to sue and be sued, to choose her domicile, to own and control property, and, if widowed, to have custody of her children. A matron (feme couvert), by contrast, bore many of the legal disabilities of a minor. The laws regulating property and contractual rights most clearly defined the married woman's legal status in Texas.

Today's Rule of Evidence:

RULE 105. LIMITED ADMISSIBILITY:

(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

(b) Offering Evidence for Limited Purpose. When evidence referred to in paragraph (a) is excluded, such exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose or limits its offer to the party against whom it is admissible."

Illinois v. Fisher, 540 U.S. ___ (2004): Today, the Supreme Court re-affirmed Arizona v. Youngblood, 488 U.S. 51 (1988) (holding that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law").

Order List: The Supreme Court has released this week's order list.

Grants of certiorari: The SCOTUSBlog reports here on the United States Supreme Court granting certiorari in three cases today.

SCOTUSblog reports: The SCOTUSBlog reports that the United States Supreme Court will issue opinions Tuesday and Wednesday of this week.

The United States Supreme Court will hear oral arguments in two cases today:

Household Credit Services v. Pfennig, No. 02-857

Question Presented: Whether the Federal Reserve Board reasonably classified a fee imposed by a credit card lender because a consumer has exceeded the credit limit as one of the "other charges which may be imposed" under the account [15 U.S.C. 1637(a)(5)] rather than as a "finance charge" [15 U.S.C. 1605(a)], within the meaning of the Truth in Lending Act, 15 U.S.C. 1601 et seq?

Scarborough v. Principi, No. 02-1657

Question Presented: Whether, or in what circumstances, an applicant for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is barred from obtaining a fee award by the Act's 30-day statute of limitations solely because the applicant's timely-filed fee application did not initially allege that the position of the government in the underlying litigation lacked substantial justification.

"The New Bill to Protect the Gun Industry From Lawsuits. How It Strikes at the Heart of Age-Old Tort Law Principles": "FindLaw columnist and Brooklyn law professor Anthony Sebok, and FindLaw guest columnist and Albany law professory Timothy Lytton, discuss a bill pending before Congress that would grant broad immunity against certain types of tort suits to gun manufacturers and distributors. Sebok and Lytton argue that the bill is a bad idea -- and that Senator Daschle's proposed amendment to it is not much of an improvement. They also advocate addressing such issues on the state, not the federal, level."

"February 2004 Docket Watch": "During the next two weeks, the U.S. Supreme Court reviews whether the Child Online Protection Act, which aims to restrict children's online access to material that is "harmful to minors," violates the First Amendment. The Court will also consider whether the 1988 ruling in Mills v. Maryland, which stated that jurors do not have to agree unanimously on mitigating circumstances when considering a death sentence, can be applied retroactively." The Legal Times has < href="http://www.law.com/jsp/article.jsp?id=1076428377144">this look at the cases before the United States Supreme Court in the coming weeks.

"High Court at Crossroads": "The stage is set for landmark rulings on the war on terror by the end of the Supreme Court's current term, and debate is growing over whether the current Court will speak more forcefully than its wartime predecessors. Four cases to be heard in April will ask the Court to define the executive branch's authority in times of war. They will also test the power of the high court -- and other federal courts -- to review what the president has done." Tony Mauro of the Legal Times has this look at the crossroads.

"Candidates pledge reversal of colonia's economic woes": The El Paso Times reports here that "[c]andidates for El Paso county attorney and county commissioner District 3 made promises to support job training and improve infrastructure in El Paso County colonias at an accountability session Sunday organized by the El Paso Interreligious Sponsoring Organization. County Attorney Jose Rodriguez and challenger Rick Porras, as well as County Commissioner Miguel Teran and challenger Luis Sarinana, were each asked to answer a handful of questions, yes or no, on whether they would support efforts to improve the lives of EPISO members and colonia residents."

I couldn't resist: The London AP reports: "Woman Fined for Registering Cows As Voters."

Who ya' gonna' call? Roy Minton.: The AP reports here that "House Speaker Tom Craddick has hired a [Roy Minton] and agreed to turn over to the Travis County district attorney's office documents related to his quest for the speakership and fund-raising efforts."

"Jury recommends death penalty for woman": The Corpus Christi Caller-Times reports here that "[a] judge sentenced a former prison guard and day-care worker to death Thursday for the 1998 murder of her newborn son. Jurors deliberated 4 1/2 hours before returning the death sentence for Kenisha Berry, 26."

"Kenedy suit stay is questioned": The Corpus Christi Caller-Times reports here that "[a]ttorneys for the family seeking to link their lineage to John G. Kenedy Jr., the South Texas ranching legend and benefactor of countless Catholic charities, say a recent appellate court ruling halted proceedings in several civil cases but did not stop a court-ordered exhumation of Kenedy's body. Bonner Dorsey, lead appellate attorney for Ann Fernandez, said the Fernandez family is seeking clarification of the 13th Court of Appeals' Feb. 9 order that would halt proceedings in three of seven related cases. "

"Election officials predict large turnout in state's March 9 primaries": The AP has this report.

"Appellate rivals tout extent of experience": The San Antonio Express-News has this report on the three elections for the Texas Court of Criminal Appeals.

New district spices up hot race for Congress": The San Antonio Express-News reports here that "[t]wo Bexar County congressmen are defending their seats while a quartet of candidates is seeking to represent a newly created district that runs from central Austin south for 350 miles to the Mexican border. The new fajita-shaped District 25 was designed by Republican mapmakers during last year's contentious redistricting debate to favor a Hispanic candidate. But Democrat incumbent U.S. Rep. Lloyd Doggett, freshly redistricted out of his Austin-based District 10 seat, quickly jumped into the race. Doggett, who faces former Hidalgo County District Judge Leticia Hinojosa, has a $2.3 million campaign war chest and a two-month head start on Hinojosa."

"Affirmative action critic challenged": The San Antonio Express-News reports here on the race for Place 5 at the Texas Supreme Court.

Terry Nichols Set for Trial: The AP reports: "Nearly 10 years after Oklahoma blast, case set for state trial."

Districts ask judge to support 'Robin Hood' school funding": The AP reports here that San Antonio's "Edgewood School District has joined 15 other educational systems, most in South Texas, in asking a state district judge to preserve the current school funding program that helps poorer districts. The school systems have asked the Travis County court to find 'constitutional and necessary' elements enabling districts of varying wealth to raise similar amounts of money. The court is scheduled to hear a challenge to the $30 billion funding system in July."

Forensic Art: The Fort Worth Star-Telegram has this look at forensic art.

Tarrant County Fee Debate: The Fort Worth Star-Telegram reports here on Tarrant County's District Clerk Tom Wilder'sdecision to charge individuals a subscription fee for access to criminal court records. County Clerk Suzanne Henderson does not charge for a subscription fee for access to deeds and marriage licenses.

Here is the "District Clerk Computer Dial-In Subscriber Agreement" (PDF).

"Use of drug for executions is challenged": The Fort Worth Star-Telegram has this report.

Rep. Beverly Woolley's Fund Raising Scrutinized: The Houston Chronicle reports here that "[a] prominent Houston lawmaker's campaign fund-raising sweep at Reliant Energy has become part of a growing Travis County grand jury probe into possible criminal misuse of corporate funds to finance a Republican takeover of the Texas House."

Around the State in Sunday's Newspapers: The Fort Worth Star-Telegram reports: "Foes try to stop topless clubs"; "Jumping over education hurdles"; "One business did its part to stop wheels of injustice"; "Residents share views on racial profiling with police"; "Primary voting to begin"; "Attorneys in botulism case seek dismissal"; "Speeding trend is within normal limits"; "Smile, you're on high-res police surveillance video"; "Reports of rapes vex city, air base"; and "Bullock museum unfurls the historic flags of Texas."

The Houston Chronicle reports: "Internet a weapon in negative campaign for Oval Office."

The San Antonio Express-News reports: "Racing is blamed in Texas 16 death"; "Primary battles expected to draw heavy turnout"; and "Probe of GOP growing."

The AP reports: "Bet would end suit tied to Neil Bush"; "Private company denied bid to run state school"; "Polls: Most in Mass. Oppose Gay Marriage"; and "Pharmacist refuses contraceptive pill to victim of rape."

Gov. Perry vs. Sen. Hutchison: "Gov. Rick Perry said this week that Sen. Kay Bailey Hutchison chose the worst possible time to call the Bush administration's progress on Mexico's decade-old Rio Grande water debt 'halfhearted.'" The AP has this report.

Juveniles and the death penalty: The San Antonio Express-News reports here that "[a] death penalty expert said Friday that the nation is nearing the end of a century-long debate over sentencing juveniles to die, even as the country's highest court gets ready to reconsider whether the practice should be deemed cruel and unusual."

William Pryor's Recess Appointment: The New York Times reports here on the recess appointment of William Pryor to the 11th Circuit.

Gov. Perry's Chief of Staff Scrutinized: The Houston Chronicle has this report.

"Citation Blues": Jim Dedman has this post on Bluebook Rule 10.7. I echo his thoughts about the "most vexing violation of the citation rules."

Another Recess Appointment: Howard Bashman is reporting that the White House will use a recess appointment to put Alabama Attorney General Bill Pryor onto the 11th Circuit.

"FDA chief and Texas comptroller's son to oversee Medicare": The AP reports here that:

President Bush named Mark McClellan, chief of the Food and Drug Administration and the son of the Texas comptroller, to run the agency that oversees Medicare and its new prescription drug benefits. McClellan is a physician and economist and the brother of White House press secretary Scott McClellan. He is the son of Carole Keeton Strayhorn.

Bush announced McClellan's nomination Friday. The nomination must be approved by the Senate.
McClellan would be chief of the Centers for Medicare and Medicaid Services, a part of the Department of Health and Human Services. The division also oversees Medicaid, the health insurance program for low-income and disabled people.McClellan, formerly an associate professor of economics and medicine at Stanford University, is considered an expert in health economics. He has been recognized for his research.McClellan earned his bachelor's degree from the University of Texas at Austin. He has a master's and medical degrees from Harvard. He earned a doctorate at Massachusetts Institute of Technology.

Order in Padilla case: Here is the United States Supreme Court order in the Padilla case.

"Supreme Court to rule on enemy combatants case": The AP reports here that "[t]he Supreme Court agreed today to decide whether the Constitution forbids the Bush administration from holding U.S. citizens indefinitely and without access to lawyers or courts when they are suspected of being 'enemy combatants.' The justices will consider the case of Jose Padilla, an American citizen, former Chicago gang member and convert to Islam who was arrested in his home city after a trip to Pakistan. The government alleges he was part of a plot to detonate a radiological 'dirty bomb' in the United States."

Weekly Orders from the Texas Supreme Court: This week's orders are now available. No opinions were issued.

TRAP 6.3 To Whom Communications Sent: TRAP Rule 6.3 provides:

Any notice, copies of documents filed in an appellate court, or other communications must be sent to:

(a) each party's lead counsel on appeal;

(b) a party's lead counsel in the trial court if:

(1) that party was represented by counsel in the trial court;

(2) lead counsel on appeal has not yet been designated for that party; and

(3) lead counsel in the trial court has not filed a nonrepresentation notice or been allowed to withdraw;

(c) a party if the party is not represented by counsel.

Are you wondering why TRAP 6.3 is posted here? See this post from last night.

"More on What's Wrong with the Modern Jury: How Juror Selection Can Be Improved": "In Part Two (Part I is available here)of a series on the jury, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the ways in which juror selection can be improved. Among Amar's suggestions are the elimination of peremptory challenges -- for which lawyers need not give a reason -- and the restriction of "for cause" challenges. Amar also discusses the need to keep highly educated jurors in the jury pool, and to penalize those who don't show up at the courthouse for jury selection. He also makes the provocatives suggestion that we may want to reconsider the rule of unanimity for criminal juries."

I guess they still don't have standing:

A group of abortion opponents gathered Wednesday near a Waco school in defiance of a new city ordinance prohibiting activities on streets and sidewalks in school zones. Instead of issuing citations which could have carried fines up to $500, Waco police responded by warning the group they were violating the ordinance. More than 70 protesters stood in front of the Planned Parenthood office at 1927 Columbus Ave. beginning about 7 a.m. The building is within the school zone for Waco Montessori School, which sits across Columbus Avenue. The group gathered to show opposition to an ordinance passed by the city council Feb. 3 barring 'street activities and parades' within school zones during certain hours. Montessori school zone hours are 7:30 to 8:30 a.m. and 3:30 to 5:30 p.m.

The Waco Tribune-Herald has the rest of the story. I first reported on this protest here.

Republic of Texas member sentenced for gun possession:

An admitted member of the "Republic of Texas" militia has been sentenced to more than 18 years in federal prison for possessing a firearm as a convicted felon. Troy Dayton Fuller, 39, of Arlington was given 18 years, four months Thursday, U.S. Attorney Johnny Sutton said. Fuller was convicted by a federal jury in Pecos on Nov. 18.
Fuller had three prior felony convictions and therefore would have to serve a minimum of 15 years in prison under the Armed Career Criminal Act, U.S. District Judge Robert Junell ruled.

The AP has the rest of the story.

Crackdown on traffic violations: The Fort Worth Star-Telegram has this report.

"Judges seek to ease jail crowding, costs": "To reduce costs and relieve jail crowding, Tarrant County's criminal court judges are recommending that many first-time misdemeanor defendants be released from custody by paying a $250 bond." The Fort Worth Star-Telegram has the rest of the story.

"Breath tests fair game in South Texas courts": The AP reports here that "[t]he Texas Court of Criminal Appeals says breath tests are relevant evidence of drunken driving, but tossed back to a lower court the decision on whether the tests could unfairly prejudice a jury." I first reported on this decision here.

"'Jane Roe' takes her case back to court":

Armed with more than 1,000 affidavits and 30 years of regret, the woman at the center of the landmark Roe v. Wade abortion case is returning to the courtroom in hope of overturning the U.S. Supreme Court's decision that made the procedure legal. 'The courts, without looking into my true circumstances and taking the time to decide the real impact abortion would have upon women ... used me to justify legalization of terminating the lives of over 35 million babies,' Norma McCorvey, the 'Jane Roe' of the 1973 U.S. Supreme Court decision, claims in a lawsuit to reopen the case. The 5th U.S. Circuit Court of Appeals in New Orleans will hear arguments March 2.

The Houston Chronicle has the rest of the story.

Reawakening 'Roe v. Wade.' 5th Circuit to hear one-sided argument in appeal seeking to overturn landmark abortion decision:

For the first time in more than 31 years, an original litigant in Roe v. Wade will be before a federal appeals court asking it to reconsider the most controversial U.S. Supreme Court decision in modern history.

On March 2, the 5th U.S. Circuit Court of Appeals will hear arguments in McCorvey v. Hill, a case that pits the original plaintiff in Roe v. Wade against the Dallas district attorney over the right to obtain a legal abortion.

Since the 1973 opinion, Norma McCorvey -- the plaintiff better known as Jane Roe -- has changed her views on abortion. Last year, she filed a motion in U.S. District Court in Dallas requesting that Roe v. Wade, the landmark case legalizing abortion, be reversed.

John Council of the Texas Lawyer has the rest of the story.

TRE 103(a) Rulings on Evidence:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.

Implementing New Ideas: I have received several emails lately suggesting different ideas for posts. One idea I have already implemented and that is a daily post on Texas legal history (see here and here). Another idea is to include a daily post to a rule of evidence, rule of civil or criminal procedure, or a rule of appellate procedure. I am going to try this as well and would appreciate your comments on these new ideas. Keep the suggestions coming. In the future I would like to have a monthly question and answer post for Texas legal practitioners (modeled off of Howard Bashman's "20 Questions for the Appellate Judge").

A tribute to fallen American soldiers: Robert Holcomb has this post and picture of a tribute from an unlikely source. Very moving.

Have you seen the Justice John Paul Stevens Bobblehead?: If not, the Supreme Court Blog has this picture of the bobblehead. (I know this is an older post but its the first I have seen of the Stevens bobblehead).

Do as I say, not as I do: The Houston Chronicle reports that "Ex-judge found guilty of wallet theft at bar."

"Appeals court to hear request to reopen Roe v. Wade": The AP reports here that "[t]he 5th U.S. Circuit Court of Appeals has agreed to hear arguments on a motion to reconsider the U.S. Supreme Court decision that legalized abortion 31 years ago. Norma McCorvey, the former plaintiff known as 'Jane Roe' who now actively opposes abortion, filed the motion in June seeking to have Roe v. Wade overturned. She said her request is based on evidence of the negative effects of abortion that didn't exist in 1973."

"Death row inmate could be spared. Ruling says prosecutors failed to give defense key evidence":

A man sentenced to die for a 1982 murder should not be executed because Harris County prosecutors withheld crucial information that could have persuaded a jury to spare his life, a federal judge has ruled. Donald Anthony Miller, 41, has spent almost 22 years on death row after he was convicted in the fatal shooting of a man he and two partners lured to a house to rob. During his trial, prosecutors presented evidence from several witnesses who were with Miller that night and another person who said he lent Miller the murder weapon. But, according to the ruling by U.S. District Judge Kenneth Hoyt, prosecutors failed to give defense attorneys documents that show these key witnesses changed essential elements of their stories between their initial interviews and the trial.

The Houston Chronicle has the rest of the story.

"Man who raped and killed 3-year-old gets death": The Houston Chronicle reports here that "[a] jury returned a death sentence Wednesday for a man convicted of biting, raping and fatally beating his girlfriend's daughter on her third birthday. Tomas Gallo, 28, smiled, laughed and shook his head after jurors decided he does not have mental retardation and should be executed for the murder of Destiny Marie Flores."

Victor v. Grand casino-Coushata et al., ___F.3d___ (5th Cir. 2004): Today, the United States Court of Appeals for the Fifth Circuit held that it lacked appellate jurisdiction under 28 U.S.C. sec. 1447(d) to consider an appeal from an order to remand back to state court. Section 1447 provides: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." For the curious, Victor is suing the casino under a breach of contract claim. Apparently, Victor won a rather large jackpot and the casino refused to pay arguing that a malfunction in the slot machine generated the jackpot.

Today's Texas Legal History: The Handbook of Texas Online has this look at the history of the Court of Criminal Appeals.

Texas School Finance Project: "The Joint Committee on Public School Finance was created to address issues regarding financing the public education system in Texas. A website has been established to allow the public to follow activity of the committee."

[Via Texas Legislature Website]

Professor Alderman's Op-Ed: Houston's Clear Thinkers has this post on Professor Alderman's op-ed in today's Houston Chronicle.

Gov. Perry endorses Justice Green for the Texas Supreme Court: The San Antonio Express-News has this report. Justice Smith's response is here.

Free speech and the Election Supervisory Board at UT: Fellow Texas blogger Jim Dedman takes a look at First Amendment issues and the ESB.

"Can a City Require Surveillance Cameras in Cybercafes Without Violating the First Amendment?": "FindLaw columnist and U. Washington law professor Anita Ramasastry discusses an California appeals court case that asked whether a city runs afoul of the First Amendment when it addresses gang-related violence by mandating that cybercafes install video cameras. Ramasastry argues that the dissenting judge was correct to insist that a cybercafe is more like a public library than like a retail store -- and that the First Amendment interests here are very important indeed. She also notes how the 'digital divide' could intersect with the regulations to force those who cannot afford home computers to use the Internet only under surveillance."

"It's a Blog World After All. If you're seeking greater visibility, a Web log may be for you": "As a solo practitioner and creator of the MyShingle.com Web log for solo and small-firm lawyers, Carolyn Elefant is frequently asked two questions by fellow solos: 'What are blogs?' and 'What will blogs do for my business?' Blogs have much to offer solos seeking to build and market their practice: Just for starters, they can serve as 'quick and dirty' Web sites that help solos gain visibility, keep current on practice areas, and make new contacts." Carolyn Elefant of the Legal Times has this report.

"San Francisco Draws Battle Lines for Gay Marriage. Decisions in 'Lawrence' and 'Goodridge' seen as road map": Pam Smith of The Recorder has this report.

"Alderman wants state to investigate Waller County DA": The Houston Chronicle reports here that "[c]ontroversy surrounding Waller County's district attorney has gone beyond his challenge to allowing college students to vote in local elections. On Wednesday, Brookshire Alderman Robin Willis asked Texas Attorney General Greg Abbott to investigate District Attorney Oliver Kitzman's prosecution of black public officials in Waller County."

Porn probe clears UT-Houston workers: The Houston Chronicle has this report.

Harris County's Crackdown on Pollution Takes Aim at Shell: The Houston Chronicle reports here that "Harris County filed a lawsuit Wednesday seeking fines from Shell for violations at its Deer Park complex that sent black smoke and foul-smelling pollution into neighborhoods and shut down nearby highways. The suit -- which could result in thousands of dollars in penalties -- is among a handful of cases brought by the county against major petroleum and petrochemical plants in recent years."

Enron's Ex-CEO Jeff Skilling Indicted: The Houston Chronicle reports: "Enron's Skilling expected to turn himself in today."

Today's Jaime Capelo News: The Corpus Christi Caller-Times reports: "Capelo wants PAC data."

"Court says breath tests are relevant": The San Antonio Express-News reports here that "[t]he state's highest criminal court Wednesday tossed out an appellate decision that previously had hindered drunken-driving prosecutions, but the latest ruling left open the crucial question: Can breath tests be used to prove intoxication? The Texas Court of Criminal Appeals ruled 7-2 that breath tests are relevant evidence of drunken driving, even though the exams can be given hours after motorists are pulled over. The decision overruled a 2003 ruling from the San Antonio-based Fourth Court of Appeals, but did not entirely dispose of the case, whose ripples have troubled prosecutors in the 32 South Texas counties within the 4th Court's jurisdiction."

How important is Texas now that Dean is out?: The Fort Worth Star-Telegram has the answer.

"Former guard found guilty of sexual assault on inmate": The Fort Worth Star-Telegram has a story that begins: "'Do you think you're the first? This happens all the time,' a former correctional officer with the Federal Bureau of Prisons told a woman incarcerated in Fort Worth as he raped her. But the victim, hanging on to a glimmer of hope that she might save other women from being brutalized like her, kept her semen-stained pants until the day she was released. Then she told the camp administrator."

"Prosecutors look to end judge boycott": The Fort Worth Star-Telegram reports here that "Tarrant County District Attorney Tim Curry is negotiating an end to his office's boycott of a juvenile-court judge's courtroom in a 'good-faith effort to get along.' In a letter Curry wrote to the Tarrant County Juvenile Board on Friday, he says his office has agreed with state District Judge Jean Boyd to allow his prosecutors to appear before Associate Judge Kim Brown in criminal cases. Curry's office began boycotting Brown's courtroom Jan. 29 after rulings that prosecutors felt were not in the best interest of public safety." I first posted to this story on Tuesday.

"Navarro County man executed despite attorney's appeals": The Waco Tribune-Herald has this report.

Site Feed: I have now added a site feed to the Texas Law Blog. If you have a news aggregator just click on the "Site Feed" link in the right hand column.

"Former death row inmate found not guilty": The AP reports here that "[a] prisoner taken off death row [in North Carolina] after a judge ruled prosecutors withheld key evidence in his murder trial was found not guilty today in a second trial."

"Teacher gets prison for drive-through weapons sales": "A 31-year-old high school history teacher was sentenced Tuesday to 27 months in federal prison for selling guns out of his drive-through beer store." The AP has the rest of the story.

"Cop from Jessica McClure rescue headed to prison": The AP reports here that "[a] former Midland police officer who helped in the 1987 rescue of 'Baby Jessica McClure' pleaded guilty Tuesday to charges of sexual exploitation of a child and storage of explosives. William Andrew Glasscock, 52, admitted he used a hidden camera to film a 12-year-old girl undressing and getting in and out of the shower at his Greenwood home. He also admitted he received hundreds of images over his computer of child pornography and bestiality."

CCA Hand Down List: Today's hand down list is now available from the Court of Criminal Appeals. The Court granted two PDRs (one appellant's and one state's).

Judge Roy Bean - "The Law West of the Pecos": The Handbook of Texas Online contains the following excerpt of Judge Roy Bean:

There was, however, a sort of common sense behind his unorthodox rulings. When a track worker killed a Chinese laborer, for example, Bean ruled that his law book did not make it illegal to kill a Chinese. Since the killer's friends were present and ready to riot, he had little choice. And when a man carrying forty dollars and a pistol fell off a bridge, Bean fined the corpse forty dollars for carrying a concealed weapon, thereby providing funeral expenses.

"What’s Hot and What’s Not in the Legal Profession": The ABA section of Law Practice Management has the following look at the legal profession.

Court of Criminal Appeals Opinions: The Court of Criminal Appeals has just released two published opinions.

Today's Oral Argument at the Texas Supreme Court: The Texas Supreme Court is hearing oral arguments in three cases today.

Garza v. Excel Logistics, Inc. & Interim Services Pacific, LLC:

1. Whether the First Court of Appeals erred in affirming the application of the joint employer doctrine in the workers’ compensation context, outside of a situation that is governed by the Staff Leasing Services Act and/or absent a contract establishing that relationship, contrary to the decisions in Coronado, 99 S.W.3d at 741, Alvarado, 53 S.W.3d at 724-25, and Hoffman, 979 S.W.2d at 90.

2. Whether the common law “right to control” test applies for the purposes of determining whether an employer providing temporary labor services and its client are joint or “coemployers,” precluding common law claims against both companies under the exclusive remedy provision of the Texas Workers’ Compensation Act, § 408.001 of the Texas Labor Code.

3. Whether the First Court of Appeals improperly affirmed the summary judgment where there are genuine issues of material fact as to whether Garza is a covered “employee” and the Companies are “employers” under the Texas Workers’ Compensation Act.

4. Whether the First Court of Appeals erred in affirming the summary judgment where it misapplied the controlling standard of review.

Centerpoint Energy, Inc. v. PUC:

1. In a well-reasoned, comprehensive, just and reasonable statutory scheme (PURA § 39.262), the legislature determined that an electric utility’s post-deregulation stranded costs shall be recovered but not over-recovered and shall be finally determined during a 2004 true-up proceeding; the Public Utility Commission, consistent with this statutory directive, promulgated P.U.C. Subst. R. 25.263(l)(3) providing that interest on stranded costs should appropriately accrue only after stranded costs are properly verified during the 2004 true-up.

2. The windfall profits sought by the utilities ,through their contention that stranded costs occur and interest should be applied retroactively to the first day of competition on January 1, 2002, rather than upon and after verification in the 2004 true-up proceeding, cannot be supported by Petitioners' claim that they have a "regulatory contract" with the State. There is no such contract, no breach and no plausible analogy to any entitlement to pre-judgment interest in damage cases.

(Issues taken from Respondent's brief).

BMG Direct Marketing, Inc. v. Peake:

Does the mere assertion of the affirmative defense of voluntary payment render a class action uncertifiable on predominance grounds even when the record presents no individualized facts which would be relevant to the determination of the defense?

(Issues taken from Respondent's brief).

Fourth Court of Appeals: The 4th Court in San Antonio has released opinions today in several cases.

Prairie View students sue again over voting: "The Prairie View A&M University chapter of the NAACP alleged in a federal lawsuit Tuesday that Waller County officials violated federal law by shortening the early voting period at the university for the March 9 primary election. The lawsuit, the second filed by the Prairie View NAACP against county officials in two weeks, alleges the county cannot make changes affecting voting without obtaining approval from the U.S. Justice Department." The Houston Chronicle has this report.

Execution preceded by tirade: Spewing profanities at his ex-wife standing a few feet away, an angry former auto mechanic was executed Tuesday evening for the deaths of his three young children in a fire at their home two days before Christmas 12 years ago. 'The only statement I want to make is that I am an innocent man convicted of a crime I did not commit,' Cameron Willingham said. 'I have been persecuted for 12 years for something I did not do.'" The Houston Chronicle has this report.

Appeals Court OKs FTC's Do-Not-Call List: The folks at Slashdot are having this discussion about the new ruling.

A&M YCT creates new scholarship: "The Texas A&M University chapter of the Young Conservatives of Texas is offering $10,000 in scholarship funds to protest affirmative action. The money will be distributed through an essay contest in which applicants must write about how they or their family members have 'overcome institutionalized discrimination and/or the stigma imposed by policies giving preference to particular racial or ethnic groups.'" A.J. Bauer of the Daily Texan has this report.

Your computer could be the vehicle for spam delivery: Tom Mighell has this article over at Inter Alia.

"Astroturf manufacturer goes bust": Tom, over at Houston's Clear Thinkers, has this post on the recent bankruptcy filing of Southwest Recreational Industries, Inc.

"Three Bad Reasons--and One Very Good Reason--to Oppose a Constitutional Amendment Barring Same-Sex Marriage": "FindLaw columnist and Columbia law professor Michael Dorf discusses the arguments against a proposed amendment to the U.S. Constitution that would ban same-sex marriage. Dorf argues that three of these arguments don't hold water: the argument deriving from states' rights; the argument claiming that constitutional amendments can legitimately expand, but not contract, individual rights; and the argument that relies upon a general hostility to constitutional amendment. However, he argues there is one very powerful argument against the amendment: the moral argument for treating gay persons as equal."

"Lawyers See Red Over Lobster Case": "A dispute that began with an errant shipment of Honduran lobsters into Alabama has turned into an international incident that is now before the Supreme Court, complete with high-powered law firm and interest group participation. The cases raise delicate issues of federal court interpretation of foreign law at a time when the Supreme Court itself is taking a fresh look at the importance of international law in its own jurisprudence." Tony Mauro of the Legal Times has this article.

First Amendment at Heart of Protest: The Waco Tribune reports here that:

A group of abortion protesters plan to confront the city today on a new ordinance that bans activities on Waco streets and sidewalks in school zones.

Demonstrators plan to gather in front of the Planned Parenthood office at 1927 Columbus Ave. beginning about 7 a.m., according to Rusty Lee Thomas, director of Waco-based Elijah Ministries. The clinic is within the school zone for the Waco Montessori School, which sits across Columbus Avenue. Montessori school zone hours are 7:30 to 8:30 a.m. and 3:30 to 5:30 p.m.

On Feb. 3, the Waco City Council passed an ordinance prohibiting 'street activity and parades' within school zones during certain hours. City officials say the move was taken with public safety in mind and was not designed to target any particular school or group. However, groups such as Elijah Ministries, which has long demonstrated outside the clinic, say the ordinance was written with them in mind and that it limits their ability to get their message across.

"Interim JP sworn in despite protest": "Flanked by her parents, and before dozens of supporters in the legal community, local attorney Linda Penn was sworn in Tuesday to temporarily fill the bench recently vacated by beleagured Justice of the Peace Albert McKnight. The swearing-in ceremony took place at the same time McKnight's attorneys were busy on a different floor of the courthouse trying to block the appointment." The San Antonio Express-News has the rest of the story.

"2 groups want Craddick role in election probed": The Houston Chronicle reports here that "[t]wo public watchdog groups and a Democratic legislative leader Tuesday called for investigations of House Speaker Tom Craddick's role in 2002 legislative races and his activities leading to his subsequent election as the House's presiding officer. The demands were prompted by renewed attention over Craddick's involvement with a political action committee, Texans for a Republican Majority, which was instrumental in the GOP's takeover of the Texas House in 2003 and, at least indirectly, in Craddick's election as presiding officer."

"Same-sex marriage case poses a legal puzzle": The Houston Chronicle has this report.

"Texas executes man for killing daughters": The AP reports here: "Proclaiming his innocence and spewing profanities at his ex-wife standing a few feet away, an angry former auto mechanic was executed Tuesday evening for the deaths of his three young children in a fire at their home two days before Christmas 12 years ago."

Thanks for all of your email: The Texas Law Blog has received many emails regarding the upcoming election for Place 5 of the Texas Supreme Court. Although I have not been able to personally respond to all of these, I want to take this opportunity to thank you for your thoughts (especially those of you who have emailed your support of St. Mary's Law School).

Governor Perry endorses Justice Green for the Texas Supreme Court: In response, Justice Smith has issued the following press release:

Justice Smith Responds to Perry Interference in Texas Supreme Court Race

Austin, TX - Governor Perry formally endorsed Justice Paul Green today at a press conference held in San Antonio at the Bexar County Republican Party Headquarters at 1:45 p.m.

I. In response, Texas Supreme Court Justice Steven Wayne Smith said:

"I am not surprised that Governor Perry has endorsed my opponent. Perry's office recruited Green to run against me and Perry's associates have been openly running Green's campaign.

"The Governor's endorsement is simply a case of 'sour grapes.' He remains upset that I defeated Xavier Rodriguez, Perry's appointee to the Court. Rodriguez, a former Democrat, ran as a self-described moderate. Among other statements, Rodriguez labeled himself a 'judicial moderate' and equated his judicial philosophy with liberal U.S. Supreme Court Justice Souter. I ran against Rodriguez to give voters a choice between a self-described moderate and a proven conservative.

"I made several attempts to find common ground with the Governor. After my primary victory over Rodriguez, I tried to meet with Governor Perry and was rebuffed. After winning the general election, my efforts to meet with Perry were once again rebuffed. Finally, after completing my first term on the Court, I made another attempt this past summer to schedule a meeting with the Governor and was rebuffed. Clearly, regardless of my performance on the Court, Perry has always intended to seek my defeat in this primary election.

"Another explanation for Perry's endorsement is my opposition to racial preferences. Perry, a former Democrat, is in favor of returning racial preferences to the University of Texas at Austin. In contrast, I am a lifelong Republican who filed and won the Hopwood case.

"I believe that Perry's endorsement will have only a minimal effect on the race. I have worked hard my first 15 months on the Court, my written opinions have been well-received by the legal community, and it is undisputed that I am the strongest proponent of judicial restraint on the Texas Supreme Court. I have received substantial financial support from both the business community and the state's largest law firms. However, my strength of my campaign is the tremendous support I have among conservative Republican leaders, activists, and voters.

If I can get my voters out, I am confident that we will prevail."

II. In response to Perry's endorsement, Texas Republican National Committeeman Tim Lambert said:

"Justice Smith has been an outstanding judge on the Texas Supreme Court and has upheld the conservative tradition of interpreting the law, instead of legislating from the bench. Justice Smith is exactly the kind of conservative judge we need on the Texas Supreme Court."

III. In response to Perry's endorsement, Cathie Adams, President of the Texas Eagle Forum, said:

"I am disappointed that Governor Perry did not endorse Texas Supreme Court Justice Steven Wayne Smith. Along with many conservative and pro-life leaders throughout the state, I strongly support Justice Smith's re-election. Justice Smith has an excellent conservative record on the Supreme Court and was the only judge to rule that the Texas Constitution does not require the Robin Hood property tax redistribution scheme."

IV. In response to Perry's endorsement, David Rogers, Justice Smith's Campaign Manager, said: "We remain confident. We believe that Republican voters are more interested in maintaining traditional values on the Texas Supreme Court than they are in satisfying Rick Perry's personal vendettas."

"Unlike the liberal elite, Justice Smith believes that policy matters like abortion, education funding, and homosexual rights should be decided by the Texas Legislature, not activist judges in liberal courts. We believe that Texas Republicans want to keep that kind of judge on the Supreme Court."

Justice Smith is best known as the attorney who filed, litigated and won the Hopwood case that ended racial preferences at Texas universities from 1996 through 2003. Justice Smith has served on the Supreme Court since Nov. 20 of 2002, and has been in the majority on the Court more than 95% of the time since then.

"Justice of peace forced out over slurs at Pearland jail": The Houston Chronicle has this report.

"Court upholds do-not-call registry": The AP reports here that "[a] federal appeals court upheld the government's do not call registry today, dismissing telemarketers' claims that it violates free speech rights and is unfair because it doesn't apply to charitable or political solicitations. In an anxiously awaited opinion, the 10th U.S. Circuit Court of Appeals called the registry 'a reasonable fit.'"

"531 more music downloaders sued": The AP reports here tjat "[t]he recording industry sued 531 more computer users today it said were illegally distributing songs over the Internet in what has become a routine reminder reminder [sic.] that college students, teenagers and others can face expensive lawsuits for swapping music online."

Supreme Court Deny's Order in Gherebi: Today, the United States Supreme Court denied the application of Falen Gherebi "for an order that [he] be permitted a visit from counsel and/or be provided information about his case."

TexasBar.com: The State Bar has launched its new website.

OAG Media Advisory: "Texas Attorney General Greg Abbott offers the following information about 35-year-old Cameron Todd Willingham, who is scheduled to be executed after 6 p.m. February 17, 2004. Willingham. a former auto mechanic, was sentenced to death for killing his three young children in the family’s house in Corsicana in December 1991."

"CCA Sets Standards to Follow in Atkins Claims": The Texas Lawyer reports here that "[a] man seeking to overturn his death sentence for the 1991 robbery and murder of a South Texas lawman failed to prove that he's mentally retarded, the Court of Criminal Appeals held on Feb. 11 in a case that sets standards for courts considering mental retardation claims." (subscription to Texas Lawyer required).

"Campaign wording angers St. Mary's dean": The San Antonio Express-News has this report.

Movies and the Law: For those of you interested in films centering around litigation, The Runaway Jury, featuring John Cusack and Rachel Weisz, hits shelves today.

Expunction of Criminal Records in Texas: Dallas lawyer Michael Lowe has written this article on the expunction of criminal records in Texas.

Justice Smith's Response to Dean Piatt's Letter: Last week I posted Dean Piatt's letter to Justice Steven Smith regarding remarks the Justice made about Justice Green and St. Mary's Law School. What follows is Justice Smith's letter to Dean Piatt in response.

February 16, 2004

Dear Dean Piatt,

Thank you for sharing your concerns with me. I wish to express my regret for the distress that the reference to St. Mary's in some of my campaign materials has caused. In making a factually correct comparison of my academic record with that of my opponent, my intent was not to impugn St. Mary's Law School, or its students and alumni.

As you pointed out, many graduates of St. Mary's Law School have made outstanding contributions to the legal community and our state, and I have no doubt many current St. Mary's law students will do so as well. As a law school with a long tradition in our state and the only law school in one of the nation's ten largest cities, St. Mary's unquestionably plays an important role in Texas' legal landscape.

As you know, my campaign did not make any statement that was factually inaccurate. In response to my opponent's unfounded attack on my qualifications, my campaign materials simply compared our academic backgrounds, mentioning the facts that my opponent graduated from a law school in the lowest tier as ranked by U.S. News & World Report and that he did so without distinction.

The rankings by U.S. News & World Report are designed to reflect the relative competitiveness and academic reputations of various law schools, not to suggest that students at schools in the lower tiers do not receive a quality legal education. In making a full evaluation of a person's academic record, the competitiveness of the school attended is often taken into account along with where a student graduated in his class.

Although you characterized this reference to St. Mary's ranking as "ugly" and "not relevant," I assume that you would agree that when people choose a lawyer, they often compare academic records. In so doing, they consider the competitiveness of the law school the attorney attended and where the attorney graduated in their class as two of the many indicators of their professional qualifications.

Here, voters are not only choosing a lawyer, but also a member of the state's highest court. Just as voters evaluate a judicial candidate's professional accomplishments, they are also entitled to examine a candidate's academic record. Of course, differences between candidates' academic records are relative and should be considered along with many other factors, and I would never suggest that all graduates of any Texas law school would be unsuited to serve on a particular court.

I have removed any direct reference to St. Mary's Law School from my campaign website. I am also pleased to accept your invitation to visit your campus. Texas judges should give back to the system of legal education from which they came and assist all of our law schools in their pursuit of excellence.

In closing, I regret the distress that you and the St. Mary's Law School community have experienced as a result of the reference made in my campaign materials. I extend my best wishes for continued success to you and all the students, staff, faculty and alumni of St. Mary's Law School. Please do not hesitate to call on me if I can be of assistance to St. Mary's in the future.

Sincerely,

Justice Steven Wayne Smith
Texas Supreme Court, Place 5

P.S. I would be grateful if you could kindly share this letter with the same members of the St. Mary's community who received your letter.

The Death of En Banc: As has been observed elsewhere already, En Banc, the group blog of law and policy students, is no more. Among the members of the group blog was one Texan.

"U.S. Supreme Court Holds ERISA Does Not Preempt 'Any Willing Provider' Laws": Findlaw.com has this article which originally appeared in the May 2003 edition of Bender's Labor & Employment Bulletin,Vol. 3, No. 5, ©2003 Matthew Bender & Co., Inc.

City officials must respect ethics ruling: "The Texas Ethics Commission reinforced an important point this week when it fined Beaumont Mayor Evelyn Lord $500 for using city resources for political advertising. Unfortunately, Lord and City Attorney Lane Nichols are still defending the city's actions." So begins this editorial in the Beaumont Enterprise.

Gay Marriage and the Rule of Law: Radley Balko has these thoughts.

"Judge approves 2nd court of inquiry request": The El Paso Times reports here that "District Court Judge Richard Roman last week determined there is enough probable cause to forward a new request by two El Paso lawyers for a court of inquiry against the district attorney's office and the El Paso Police Department."

Practice Court, Day 6: In law school news, Jed at Boots & Sabers reports on his sixth day in Baylor Law School's infamous and dreaded Practice Court program. (See also here.).

"Inmates found 'soused'": The Bryan-College Station Eagle reports here that "[a] pair of county jail trusties were charged with illegal possession of alcohol last week after they were found intoxicated inside their cell, Sheriff Don Sowell said."

"Texas election funding probed": "The political-action committee Texans for a Republican Majority, created by U.S. House Majority Leader Tom DeLay and under investigation by a grand jury, often coordinated its efforts with Republican Tom Craddick before the 2002 election, The New York Times reported Monday." The AP has the rest of the story.

"Runoffs will replace 2 longtime state senators": The AP has this report.

Woman won't plead insanity in trial for smothering death: "A Beaumont woman accused of smother­ing her newborn son will not plead insanity when her capital murder trial begins today in Beaumont, her attorney said Monday. Ronnie Cohee would not provide other details about her defense strategy for Kenisha Berry. " So reports Thom Marshall of the Houston Chronicle.

Jury told former judge 'lost it' "While she still served on the bench last year, a former city judge assaulted a woman in an apparent drunken rage and then stole her purse with $1,000 in cash and other valuables, jurors were told Monday. Roxane E. Martinez, 45, faces misdemeanor assault and theft charges. She is accused of attacking Ydelia Capetillo on June 6 in the parking lot of an East Houston bar. The two women began arguing around 2 a.m. over the same man, lawyers said during opening statements. Each charge carries a maximum jail time of one year and a $4,000 fine." Ron Nissimov of the Houston Chronicle has this report.

More on activist judges: Chad Hanak's Daily Texan column on activist judges, first mentioned here in this space, has prompted three letters to the editor.

Courts send back 41 Texas death-row cases: "State and federal courts have sent 41 Texas death-row cases back to trial to determine whether the defendants are mentally retarded, according to the Texas Defender Service." Justin Ward of the Daily Texan so reports.

Student juggles classes, bar exam, campaign: "It's a Wednesday evening, and Kyle Kincaid is driving west. Back home in North Austin, his Middle Eastern studies assignments sit idle, along with law books and other study materials. Those will have to wait. He is on his way to a meeting of the Lake Travis Democrats to introduce himself, hoping to elicit an endorsement of his campaign for Travis County sheriff. . . . . Kincaid, who graduated from UT School of Law last May, is now working on his second bachelor's degree. He is also running for Travis County sheriff in the Democratic primary election March 9." A.J. Bauer of the Daily Texan has ths report.

Court of Appeals? Or Court of Appeal? Which is it? Evan Schaeffer of the Notes from the Legal Underground is on the case.

How the Janet Jackson "Nipplegate" Scandal Illustrates the Dangers of Chilling Free Speech: "So is it time to forgive, forget -- and simply mandate the use of enhanced time delays? Not according to the FCC or Congress. Both have used the Jackson incident as a wedge to try to enact further speech restrictions -- restrictions that have nothing to do with the original incident. And in doing so, both have seriously threatened Americans' First Amendment rights." So opines Julie Hilden in her latest Findlaw column.

Gay Rights Without Borders: "Twenty-two years after the European Court of Human Rights overturned Northern Ireland's ban on gay sodomy, the U.S. Supreme Court finally caught up. Not only did the Court strike down a state law that criminalized consensual homosexual activity, it even acknowledged the European precedents that had reached the same outcome first." So begins this column by Joanne Mariner at Findlaw.

"Inmates' retardation claims increase. High court ruling leaves room to get off death row": The AP has this report.

"Capelo's lack of records is normal. Lawyers make handshake referral deals, despite advice to clients": The Corpus Christi Caller-Times has this report.

"Suits allege unpaid taxes. Oil, gas companies deny revenue on their sales was withheld": "Wildcatters and oil exploration companies have long tapped the veins of oil and gas that flow through Jim Wells County. Now the county and Premont Independent School District allege that three oil and gas production companies have bled them dry by defrauding them on tax dollars. In three separate lawsuits filed in the 79th District Court, the county and the school district have sued Anadarko Petroleum Corporation and some affiliates, Exxon Mobil Corporation, and El Paso Production Oil and Gas Company and some affiliates. The companies deny any wrongdoing." The Corpus Christi Caller-Times has the rest of the story.

"President pardons former Plano mayor": The AP reports here that "President Bush has pardoned a former mayor of this North Dallas suburb who pleaded guilty to bank fraud in 1996. David B. McCall Jr., 79, admitted he was involved in more than $25 million in fraudulent loans made at the Plano Savings and Loan Association, which failed in the mid-1980s. Bush pardoned McCall on Saturday, the U.S. Justice Department said Monday. McCall, who is battling cancer, slipped into a coma three days ago, his wife, Nellie, said today. She declined to comment on the pardon."

"Dad who set fire that killed kids set to die Tuesday": The AP reports here on tomorrow's scheduled execution of Cameron Willingham.

"Mother of ant-bitten baby found in ditch heads to trial": The AP reports here that "[a] Beaumont woman accused of smothering and abandoning her newborn son almost six years ago and then leaving a second baby in a ditch over the summer has a lot to overcome when she faces trial Tuesday on a capital murder charge, a legal expert said. Kenisha Berry, 26, is charged with capital murder for the smothering and abandonment of her son shortly after his birth in 1998. She also faces an abandonment charge for leaving her newborn daughter in a ditch over the summer. The little girl survived, but was covered with hundreds of ant bites when a passer-by spotted her in June."

Congress should check activist judges Chad Hanak of The Daily Texan so opines.

Lawsuit juries harder to find - Fear of 'jackpot justice' trumps law for some potential panelists": The Houston Chronicle has this piece about the difficulty of picking juries in the era of tort reform. The story begins:

When state District Judge Elizabeth Ray summoned a pool of 93 prospective jurors to her Houston court last week, she thought that would be plenty from which to find an impartial group of 12.

But the case was the kind that has drawn increasingly strong reactions in recent years: a multimillion-dollar lawsuit by a terminally ill woman against the drug maker she blames for her disease.

In a scene that has become commonplace in Harris County courts, dozens of people in the jury pool said, in effect, that they simply could not obey Texas law.

"They stood and said, `I hate lawsuits, I hate plaintiffs' lawyers and I hate plaintiffs, and I don't think they should even be at the courthouse.' " Ray said. "I thought, `Uh-oh. I can't have that guy because he can't be fair.' "

More than 40 people told the judge they had no patience for claims of pain, suffering and mental anguish in such cases. No matter what specifics might be revealed in the trial, they said, they could not award punitive damages.

In lawyers' lingo, they "busted the panel," meaning Ray disqualified so many people that she had to summon a new pool of potential jurors.

"16 same-sex couples turned away by clerk": "About 16 gay couples who applied for marriage licenses Friday at the Harris County clerk's office were turned away because the state does not allow same-sex marriages." More of that story here.

"Jurors spare life of store owner's killer": Also in today's Houston Chronicle is this article about a Harris County jury's decision to spare a capital defendant the death penalty. "In a rare setback for Harris County prosecutors, a man who robbed and killed a convenience-store owner dodged a capital murder conviction and possible death penalty this week when jurors concluded that the shooting was an accident. The jury found that Roberto Antonio Fernandez, 25, did not intentionally shoot 50-year-old Vien Ma during the robbery of Ma's 24-hour grocery store on Dec. 21, 2002. Instead of capital murder, jurors convicted Fernandez of a lesser crime, felony murder, and sentenced him Friday to life in prison. It was an unusual outcome for a case in which prosecutors had sought a death sentence."

"Brazoria prison escapee arrested in Houston": The Houston Chronicle reports that "An inmate who escaped from state prison in Brazoria County was arrested today at fast-food restaurant on Interstate 45 South. Edward Cortez, 35, was taken into custody without incident. The search for Cortez, who walked away from a trusty camp Thursday, had extended as far as the Rio Grande Valley."

Bottom of New Mexico/Top of Texas - Roadtrip 2004: My wife and I are in New Mexico this weekend. We will be hiking Carlsbad Caverns National Park and Guadalupe Mountains National Park. I believe everything has been worked out so that the Texas Law Blog will be periodically updated by a fellow Texas attorney and blogger. Take care and I will see you back here on Tuesday.

"Convicted killer in two knife slayings executed": The AP reports here that "[a] former bull rider from New Mexico was executed tonight for fatally slashing and stabbing two young women more than 10 years ago while he was on probation for a drug conviction. 'Warden, at this time I have no statement, sir,' Bobby Ray Hopkins said when asked if he had a final statement. As the lethal drugs began taking effect, he gasped and gurgled. Eight minutes later at 8:19 p.m., he was pronounced dead."

Durst Indicted Again: Over at Houston's Clear Thinkers, they are reporting that a Galveston Grand Jury has indicted Robert Durst for "tampering with evidence."

Code of Fair Campaign Practices: Chapter 258 of the Texas Election Code encourages fair campaign practices. The purpose of Chapter 258 is "to encourage every candidate...to subscribe to the Code of Fair Campaign Practices." Tex. Elec. Code § 258.002(a). Subscription to the Code of Fair Campaign Practices is voluntary. Id. at § 258.003(b). However, "[i]t is the intent of the legislature that every candidate and political committee that subscribes to the Code of Fair Campaign Practices will follow the basic principles of decency, honesty, and fair play to encourage healthy competition and open discussion of issues and candidate qualifications and to discourage practices that cloud the issues or unfairly attack opponents." Id. at § 258.002(b).

§ 258.004 provides the text of the Code of Fair Campaign Practices:

"There are basic principles of decency, honesty, and fair play that every candidate and political committee in this state has a moral obligation to observe and uphold, in order that, after vigorously contested but fairly conducted campaigns, our citizens may exercise their constitutional rights to a free and untrammeled choice and the will of the people may be fully and clearly expressed on the issues.

THEREFORE:

(1) I will conduct the campaign openly and publicly and limit attacks on my opponent to legitimate challenges to my opponent's record and stated positions on issues.

(2) I will not use or permit the use of character defamation, whispering campaigns, libel, slander, or scurrilous attacks on any candidate or the candidate's personal or family life.

(3) I will not use or permit any appeal to negative prejudice based on race, sex, religion, or national origin.

(4) I will not use campaign material of any sort that misrepresents, distorts, or otherwise falsifies the facts, nor will I use malicious or unfounded accusations that aim at creating or exploiting doubts, without justification, as to the personal integrity or patriotism of my opponent.

(5) I will not undertake or condone any dishonest or unethical practice that tends to corrupt or undermine our system of free elections or that hampers or prevents the full and free expression of the will of the voters, including any activity aimed at intimidating voters or discouraging them from voting.

(6) I will defend and uphold the right of every qualified voter to full and equal participation in the electoral process, and will not engage in any activity aimed at intimidating voters or discouraging them from voting.

(7) I will immediately and publicly repudiate methods and tactics that may come from others that I have pledged not to use or condone. I shall take firm action against any subordinate who violates any provision of this code or the laws governing elections.

I, the undersigned, candidate for election to public office in the State of Texas or campaign treasurer of a political committee, hereby voluntarily endorse, subscribe to, and solemnly pledge myself to conduct the campaign in accordance with the above principles and practices."

I wonder if Justice Smith voluntarily pledged himself to these principles? On balance, I wonder if Justice Green has voluntarily pledged himself to these principles?

"Third and final lawman sentenced in constable drug-running scheme": "The third lawman involved in smuggling drugs from the Rio Grande was sentenced Wednesday in federal court, closing the file in the ongoing prosecution of Cameron County constable officials who used offices and vehicles to run more than $2 million in illegal drugs from 2000-2002." The Brownsville Herald has the rest of the story.

"Leon DA wants commissioner out": The Bryan-College Station Eagle reports here that "Leon County District Attorney Ray Montgomery on Wednesday filed a civil lawsuit to have a county commissioner under indictment removed from office. Montgomery filed the petition in the 278th District Court seeking the removal of Commissioner Burel Biddle, who is accused of taking gasoline, tires and road materials from the county for personal use."

"Aspiring songwriter indicted over threats against George Strait": The AP reports here that "[a] federal grand jury indicted a Louisiana man on extortion charges that he tried to further his music career by threatening country singer George Strait. Walter J. Bonin Jr., 32, of Martinville, La., said he would 'go Rambo' if Strait didn't record at least one of his songs, according to the indictment issued by a grand jury Wednesday. Bonin faces seven counts of extortion over threatening e-mails sent in July and August 2003."

An update to "Tacky, Tacky, Tacky": On Tuesday, I posted an excerpt from Texas Supreme Court Justice Steven Smith's re-election website in which he took a shot at his opponent for attending St. Mary's University School of Law. I also graduated from St. Mary's School of Law and have taken exception to Justice Smith's remarks. What follows is a letter to Justice Smith from Dean Piatt.

Dear Justice Smith:

I received a copy of your email of February 10, 2004 wherein you solicit support from attorneys for your re-election. Your opponent in the Republican primary is Justice Paul Green of the Texas Fourth Court of Appeals.

Paul Green is a graduate of St. Mary's University School of Law. In your message, in reference to Justice Green, you state, "While I graduated with honors from the University of Texas School of Law, he graduated from a school in the bottom tier of all law schools in the nation according to U.S. News & World Report." Your campaign website explicitly refers to St. Mary's as a "bottom tier" law school. I am writing to express my objection to what appears to be nothing more than cheap shots at our law school made for reasons of pure political expediency.

You have every reason to be proud of the University of Texas School of Law. It is indeed a great institution. However, you should be aware that virtually ever dean of every accredited law school in this country has sent a letter for many years to law applicants across the country expressing concern regarding the lack of validity of the U.S. News & World Report rankings. You should also know that our law school has a distinguished history, and favorable national rankings. For example, in 2002 we won both the national championship in the American Bar Association Moot Court Competition and the statewide title in the Texas Young Lawyers Moot Court Competition. St. Mary's Law Journal has recently been recognized as the fourth most-frequently-cited legal periodical in federal and state judicial decisions out of 900 or so journals surveyed. For three years in a row St. Mary's University has won the Lone Star Mock Trial Competition, a nation-wide invitational tournament. For the last five years in a row, we have been recognized as one of the top ten law schools in the country by Hispanic Business Magazine. Hispanic Outlook on Higher Education has ranked us the number two law school in the country. Our summer program in Innsbruck, Austria has attracted members of the Supreme Court of the United States as our guest lecturers. During my six-year term as Dean so far, we have had the honor of having Chief Justice William Rehnquist serve as lecturer on two occasions, Justice Scalia taught during the summer of 2002, and Justice Sandra Day O'Connor will serve as our guest lecturer this summer. Our clinical program and other aspects of our school also contribute to make this an excellent law school.

You shoul also know that many distinguished political leaders and jurists have graduated from St. Mary's University School of Law. United States Senator John Cornyn, (R-Tx), Congressman Charles Gonzalez (D-Tx), Congressman Scott McInnis (R-Colo), Judge Barbara Hervey of the Texas Court of Criminal Appeals, and Chief Justice Alma Lopez of the Texas Fourth Court of Appeals are but a few of these graduates. President Bush recently named Kathleen Cardone of El Paso to the U.S. District Court. The list of all our distinguished alumni would be too long to include in this letter.

It is my belief that it is inappropriate for a seated Justice of the Supreme Court of the State of Texas to impugn one of the nine law schools of this state. If you would like to learn more about our law school, I would like to extend a personal invitation to you to visit our campus and meet with me, with our faculty, with our staff and our students. We are very proud of our institution and we are very proud of the role our graduates in the legal profession in the State of Texas and throughout the United States. I call upon you to withdraw your negative remarks about our law school from all your campaign materials, and to cease making such comments in the future.

Sincerely,

Bill Piatt
Dean and Ryan Professor of Law

Houston's Clear Thinkers: "Longtime Houston attorney Tom Kirkendall and his friends' observations regarding developments in law, business, politics, culture, sports, and other matters of general interest to the Houston legal and business communities" are available at this blog.

"First DNA Conviction Case Returns. Found guilty in 1988, an inmate says modern tests will exonerate him": The National Law Journal reports here that "[t]he nation's first criminal convicted through the use of DNA is seeking a new trial based on more advanced technology, sparking yet another debate over the reliability of DNA evidence. The defendant, Tommie Lee Andrews of Florida, argues that the DNA testing standards used to convict him of rape in 1988 produced inconclusive results and that today's more advanced methods will exonerate him."

"Convicted killer in two knife slayings set to die Thursday": The Waco Tribune reports here on tonight's scheduled execution of Bobby Ray Hopkins.

"Prisoner on death row not retarded, court says": The AP reports here that "[t]he Texas Court of Criminal Appeals on Wednesday rejected a death row inmate's claims that he is mentally retarded, the first ruling on a series of claims from defendants who hope to avoid execution by lethal injection. Jose Briseno raised the claim of mental retardation in 2002 and avoided his original execution date of July 10 that year when the court granted a review of his case just hours before he was scheduled to die. The case was sent back to Dimmitt County for review."

"Killer of pregnant 10-year-old executed": The AP reports here that "[m]aintaining his innocence, twice-convicted killer Edward Lagrone was executed this evening for a triple slaying in Fort Worth where one of the victims was a 10-year-old girl pregnant with his child. 'I just want to say I am not sad or bitter with anybody,' Lagrone said in a brief final statement. 'Like I've said from Day One, I didn't kill them. But I'm no better than the people that did.' He concluded by saying: 'Jesus is Lord. That's all I have to say.'"

Court of Criminal Appeals Hand Down List: Here is the CCA's hand down list for this week. The Court granted 4 PDRs (3 Appellant's and 1 State's).

Court of Criminal Appeals Opinions: Here are today's opinions from the CCA. The Court released two published opinonions (although they are currently in the non-published section)-- Briseno and Soffar.

"Houston official wants morality clause in venue contracts": "A county commissioner seeking to avoid repeats of surprises like Janet Jackson's breast-baring Super Bowl halftime show says he wants a clause added to contracts of all entertainers who perform at such events. Harris County Commissioner Steve Radack says a so-called 'morality clause' would be included for performances at county-owned facilities like Reliant Stadium, Reliant Center and Reliant Astrodome." The Houston Chronicle has the rest of the story.

"High court ruling slows executions in Texas. Two mentally retarded death-row inmates avoid execution as state struggles to apply federal decision": The Christian Science Monitor has this report.

"Marking 50 Years Since 'Brown'": "Brown v. Board of Education, the U.S. Supreme Court decision that ended government-sanctioned racial segregation in public schools, is history writ large. Last week, in observance of the decision's 50th anniversary, a number of the key players gathered at Columbia Law School to discuss the landmark case -- and ponder its relevance to today's young people." The New York Law Journal has this report.

Execution scheduled for tonight: The AP reports here that "Shakeisha Lloyd was 17 weeks pregnant when she was killed with a shotgun blast to the head at her home in Fort Worth in a rampage that also took the lives of two great-aunts. She was 10 years old. Edward Lagrone, the father of her unborn child and the man convicted of killing her, was set to die tonight for the 1991 slaying. 'He's a poster child to justify the death penalty,' said David Montague, the Tarrant County assistant district attorney who prosecuted Lagrone. Lagrone, 46, twice convicted of murder, would be the fifth Texas inmate executed this year and the first of two on consecutive nights this week."

Oral Arguments at the Texas Supreme Court: The Court will hear oral arguments in two cases today:

Old Am. County Mut. Fire Ins. Co. v. Sanchez:

Questions presented:

1. In a case of first impression in Texas, did the Court of Appeals misconstrue
Articles 5.06-1(1) and 5.06-3(a) of the Texas Insurance Code by holding that the
named insured’s spouse—who was the applicant for and an insured under the
policy and who was included in the policy definition of “you”—was not
competent to reject Personal Injury Protection (“PIP”) and Uninsured Motorist
(“UM”) coverages?

2. Did the Court of Appeals err by holding that Respondent, who was grasping the
gas-tank hose of his uninsured pickup at the time of his injuries, was not “upon”
and therefore not “occupying” the owned but unlisted vehicle within the meaning
of the unambiguous policy exclusion?

3. Did the Court of Appeals err by holding that Respondent, who sustained injuries when his uninsured pickup came into contact with him, was not “struck by” the owned but unlisted vehicle within the meaning of the unambiguous policy exclusion?

Thomas v. Long: Questions presented: ?

Today's Oral Arguments at the Court of Criminal Appeals: The Court will hear oral arguments in two cases today:

In re Susan Wright: question presented - ?

Apolinar v. State: Question presented - whether the court of appeals erred in holding that a hearsay statement made five days after an event constituted "excited utterance."

Tacky, Tacky, Tacky: Justice Paul Green of the Fourth Court of Appeals in San Antonio is challenging Justice Steven Smith for Smith's seat on the Texas Supreme Court (Place 5). I recently received a mass email from Justice Smith regarding the judicial preference poll and his re-election bid to the Texas Supreme Court. In this email, and on his website, Justice Smith compares himself to Justice Green. One particular comparison is completely tacky:

Smith: Graduated with honors from the University of Texas School of Law, the best law school in the American Southwest (U.S. News & World Report ranking).

Green: Graduated in the middle or bottom (i.e., without honors) of his class at St. Mary's, a bottom-tier law school (U.S. News & World Report ranking).

I wonder if United States Senator John Cornyn appreciates Justice Smith's comments? Probably not. This press release indicates that Sen. Cornyn supports Justice Green.

"Black leaders discuss reparations for slave descendants": The Waco Tribune-Herald has this report.

"Contractors join lawsuit. Rodriguez accused of fraud; he and Capelo have denied the accusations": The Corpus Christi Caller-Times reports here that "[a] group of contractors, former clients of lawyer Rene Rodriguez, added themselves to a lawsuit in state district court that accuses him of participating in a scheme to 'defraud, cheat and steal' from his clients in a refinery lawsuit. It is the same lawsuit in which state Rep. Jaime Capelo's financial records have been subpoenaed. The contractors added themselves Friday to a case in 117th District Court in which a group of police officers have sued Rodriguez. The officers - and now the contractors - have alleged that Rodriguez defrauded them of a portion of their settlement against Citgo Refining Corp. in a 1997 explosion."

"Dallas trustee retiring to run for Legislature": The Fort Worth Star-Telegram reports here that "[t]rustee Rafael Anchia announced Tuesday that he will retire from the Dallas school board to pursue a seat in the state Legislature. Anchia is the only Democratic candidate for the District 103 House seat held by longtime Rep. Steve Wolens, who is not seeking re- election. The Texas Supreme Court ruled last month that Domingo Garcia, a former state representative, was ineligible for the race because documents showed that he did not live in the district. No Republicans have filed for the office."

"Ethics board fines city for violating election code": The Beaumont Enterprise reports here that "[t]he Texas Ethics Commission has found that [Beaumont] city officials violated state law by using a publicly funded television segment to promote the city's charter election last September. The city Friday agreed to pay a $500 fine for violating state election code, which prohibits the use of city resources for political advertisement."

"Mayor Moore drops appeal": The Beaumont Enterprise reports here that "[a]n attorney for former mayor David W. Moore has filed a motion to end Moore's appeal of his conviction and 20-month prison sentence for 13 federal felonies. Moore's appeals brief was due to the Fifth Circuit U.S. Court of Appeals in New Orleans Feb. 6. Instead, his attorney filed a motion to dismiss stating that he no longer wished to pursue the appeal."

"Media denied access to Capello hearing": The Corpus Christi Caller-Times reports here that "[l]awyers for state Rep. Jaime Capelo and local lawyer Rene Rodriguez objected to the media being present at Capelo's deposition today, which started about 45 minutes late. Capelo had made a comment to KIII-TV in which he invited the media to attend recently. J.A. 'Tony' Canales, the lawyer suing Capelo and Rodriguez on behalf of the 21 police officers, sent the Caller-Timesok shane written permission to attend. But in the minutes before the deposition, Jim Harris, Capelo's lawyer, exercised his right to hold the meeting privately, and he told members of the press that he and Steve McConninco, Rodriguez's lawyer, decided not to allow the media to observe the questioning, which is a precursor to a trial. Harris said it would be too distracting. Capelo did not make a statement before the deposition."

"Akin Gump, former partner settle dot-com suit": The Austin Business Journal reports here that "[l]aw firm Akin Gump Strauss Hauer & Feld LLP and a former partner have settled a lawsuit alleging fraud and securities law violations related to the firm's representation of E-Court Inc., a shuttered Internet startup in San Antonio, Texas Lawyer reported. Akin Gump and former partner H. Dale Langley Jr., now a solo practitioner in Austin, paid more than $2.6 million to the plaintiffs -- a group of dissatisfied investors from the Rio Grande Valley and the receiver for E-Court, Texas Lawyer reported. Akin Gump and Langley deny the allegations made in the suit, according to Texas Lawyer. The suit was settled just before it was supposed to go to trial in Hidalgo County in September, but the money wasn't paid to the defendants until December, says John Klug, an attorney for the Rio Grande Valley plaintiffs."

"What's Wrong With the Modern Jury: How Our System Can Better Fulfill the Framers' Ideals": "In Part One of a two-part series on the jury, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the Constitution's Framers' vision of the jury -- as both a way to protect defendants, and a way to ensure that citizens participated in what the Framers saw as a fundamental institution of democratic self-governance. Amar also discusses the modern evolution of the view that jury service is a political right of the citizen, and summarizes recent perceptions of the jury system that suggest it is in need of repair."

"Bar urges feds to stay out of gay marriage issue": The Houston Chronicle reports here that "[t]he legal profession went on record Monday urging the federal government not to meddle in state regulation of same-sex marriages, but it took no position on whether U.S. courts should hear the cases against detainees in Guantanamo Bay, Cuba. A resolution approved by the American Bar Association's house of delegates said the ABA 'opposes any federal enactment that would restrict the ability of a state or territory to prescribe the qualifications for civil marriage between two persons within its jurisdiction.'"

"Notary publics accused of scamming immigrants jailed": The AP reports here that "State officials sued and shut down the offices of two notary publics on allegations the notaries were swindling hopeful migrants and charging money to process immigration forms, violating a new state law."

"Prosecutors boycotting judge's court": The Fort Worth Star-Telegram reports here that "Tarrant County prosecutors are boycotting a juvenile judge's court after a series of rulings in criminal cases that they say were not 'in the best interest of public safety.' Assistant District Attorney David Montague said a legal provision allows prosecutors to object to appearing in a courtroom -- that of Associate Judge Kimberly Brown in this instance."

Have you noticed the new "security fee" charged in your case?: The Brenham Banner-Press reports here that "[m]ore than $30,000 will be spent to improve security for Brenham's municipal court. The Brenham City Council has approved $16,355 for video cameras, microphones and panic buttons for the court office area; $7,977 for access controls and a 'lockdown' system; and $6,500 for bullet-resistant glass at the court's payment window. The $30,832 will come from a $3 per case 'security fee' which the city has been assessing on each conviction since 1998. The city that year adopted an ordinance authorized by the Texas Legislature that allows a municipal court to assess the fee. The special fee may only be used for court security, said Diana Bennett, administrative services director for the city."

"Courts Look Anew at Capital Appeals": "In Wiggins v. Smith, the Supreme Court found that a defense lawyer's failure to investigate and present mitigating evidence about the defendant at sentencing amounted to a violation of the Sixth Amendment right to counsel. Though the record is mixed, lower courts have taken notice, reversing or reconsidering death sentences based on claims of ineffective assistance. Over time, the reversals may trigger fundamental changes in death penalty representation." John Council and Tony Mauro have this article today at Law.com.

"Another High Court Look at Gay Rights Likely" "Recent lower court rulings show that the Supreme Court's Lawrence decision didn't open a direct path to expanding gay rights via litigation. With other cases -- about sexual aids, polygamy and gays in the military -- giving lower courts a chance to interpret Lawrence, at least one will give the justices another opportunity to address gay rights -- and whether Lawrence will be reinforced or weakened depends on the Court's future composition." Tony Mauro of the Legal Times has this article.

"Lawmaker's reputation may hurt her": "It was Memorial Day 1997, at the end of a contentious session of the Texas Legislature, and Arlene Wohlgemuth wanted retaliation for a parliamentary maneuver that killed a parental notification bill on abortion. The Republican state representative from Burleson shot back with her own point of order that quashed dozens of bills, including some major legislation being pushed by then-Gov. George W. Bush. The episode became known as the 'Memorial Day Massacre' and earned Wohlgemuth a tough-as-nails reputation. It also created animosity among Republicans and Democrats alike that continues to shadow the lawmaker as she seeks to move up the political ladder to a seat in Congress." The Fort Worth Star-Telegram has the rest of the story.

"Officials keep quiet about state money crisis": "Key lawmakers are poised today to declare a fiscal emergency and urge Gov. Rick Perry to shift millions of dollars around to fix it. But reasons for the emergency and the amounts and sources of money are not yet public. Officials say state law permits the 10-member Legislative Budget Board, led by Lt. Gov. David Dewhurst, to withhold details until members complete a recommendation to Perry, who has 30 days to ratify or change it." The San Antonio Express-News has the rest of the story.

"Voters oust eight municipal officials in separate recalls": The AP reports here that "Texas voters in separate recall elections succeeded in ousting five council members, a mayor and two city commissioners over the weekend. Five of seven Haltom City councilmen were voted out of office in Saturday's recall election. Residents and the three remaining elected officials said it's now time to start healing political wounds. All the ousted council members had voted to fire City Manager Richard Torres in October. In Kingsville, residents turned out in record numbers to recall the mayor and two commissioners. City officials do not know when an election to fill the three vacancies will take place."

"Judge hears motion to dimiss suit against Baylor": The AP reports here that "[a] judge on Friday threw out most of the wrongful death lawsuit filed against Baylor University by the father of a basketball player who was gunned down last summer. Patrick Dennehy Sr. sought unspecified damages in his suit, which claims his son became the target of 'violent threats' because he intended to expose wrongdoing in the basketball program and that Baylor ignored his requests for help."

"Macon County woman awarded $1.6 billion": The AP reports here that "[a] Macon County jury awarded $1.6 billion to a woman who paid for a nonexistent life insurance policy for nearly five years, a verdict that could be sharply reduced under a state law capping such damage judgments. The jury's verdict Thursday went against Texas-based Southwestern Life Insurance Co. and agent James Richard Perry, who were ordered to pay $10 million each in compensatory damages and $800 million each in punitive damages to Carolyn Whittaker. She sued over a $25,000 policy and $50 monthly payments she made even though the policy had lapsed. A spokesman for Southwestern Life said the verdict was 'clearly inappropriate' and that the company would appeal."

Texas Supreme Court Orders: This week's orders from the Texas Supreme Court are now available.

"Former stripper sues state Sen. Mario Gallegos": The Austin American-Statesman reports here that "[a] former stripper who claims she had a 17-year affair with state Sen. Mario Gallegos has filed a lawsuit against the Houston Democrat, claiming he caused her emotional and physical pain. Susan Delgado, 39, seeks $14,000 to repay cash loans she said she made to Gallegos, as well as unspecified 'exemplary damages' for distress she said Gallegos inflicted, including 'spankings, slappings and hair pulling' during 'intimate relationships.' Gallegos' attorney, Mike Gallagher, said he was outraged at the allegations. The lawsuit will be 'appropriately and vigorously fought,' he said in Friday's editions of the Houston Chronicle. Gallegos did not directly respond to the allegations."

"Stunned court hears McFarland admit guilt": The San Antonio Express-News reports here that "[f]or nearly 15 months, Richard McFarland's peculiar silence over his wife's slaying helped fuel a riveting saga filled with bizarre speculation and high anticipation for the murder trial against him. On Thursday morning, a single utterance from him ended it all: 'Guilty.' The Terrell Hills father of three admitted killing his wife, Susan, and agreed to serve a 40-year prison sentence. Moments after an emotionless McFarland, dressed in a blue suit, white shirt and blue tie, was led into the Travis County courtroom for the start of jury selection, attorneys from both sides announced to District Judge Sid Harle that a plea agreement had been reached Wednesday evening, shocking court watchers. The trial had been moved to Austin due to extensive publicity about the sensational case. Under the terms, McFarland, 46, pleaded guilty to murder and earned credit for spending a year in jail awaiting trial. He can't seek parole for 19 years."

"No indictments in prison 'sex slave' case": The Houston Chronicle reports here that "[a] Wichita Falls grand jury has declined to indict anyone in an alleged series of attacks on a convict who gained notoriety nationwide as an unwilling 'sex slave.' Gina DeBottis, the chief of the state's Special Prosecution Unit that prosecutes prison crimes, said the grand jury considered allegations concerning sexual assault by convicts and organized criminal activity. None of the 49 convicts alleged to have committed the attacks against Roderick Johnson was indicted, she said Thursday. In April 2002, seeking compensation, Johnson filed a lawsuit against the Texas Department of Criminal Justice and more than a dozen prison officials. He alleged officials looked the other way while he was repeatedly beaten and raped by prison gangs who sold him as a sex slave while he was incarcerated at the Allred Unit near Wichita Falls. The lawsuit is pending in federal court in Wichita Falls."

"Students take DA to court": The Houston Chronicle reports here that "[d]espite a Texas attorney general's opinion in their favor, four students at the predominantly black Prairie View A&M University sued the Waller County district attorney Thursday, saying they still fear he might prosecute them for registering to vote. The federal lawsuit seeks to put Oliver Kitzman's office under a 1978 federal court order that forced the Waller County registrar of voters to register Prairie View students. Informed of the lawsuit, Kitzman, who is white, said, 'I can't imagine what they would want to stop me from doing. I haven't done anything.' The lawsuit came a day after Attorney General Greg Abbott issued an opinion that Prairie View students must be allowed to register and vote in Waller County."

"CD Clubs & Jurisprudence?": Jim Dedman has this look at a class action involving CD company BMG Direct Marketing, Inc.

Honey...have you seen the chicken?: The AP reports "Van had 2 people, 23 dogs, 3 cats and chicken."

"Woman charged with DWI after car drives off ferry": The Houston Chronicle reports here that "[t]he Lynchburg ferries remain closed today as sheriff's office divers continue efforts to remove a Mercedes-Benz vehicle that sank in the Houston Ship Channel after going overboard. The Pasadena woman behind the wheel of that car was charged with driving while intoxicated after the mishap occurred at 2:47 a.m. near the 1000 block of South Lynchburg Road. Nora Reyes, 21, remains in the Harris County Jail, sheriff's deputies said. Both Reyes and an unidentified man were inside the car when it plunged off the Lynchburg ferry and sank, but both managed to escape unharmed. The passenger, who owns the car, told deputies he was too intoxicated to drive, so he gave the keys to Reyes, whom he had just met at a local bar."

"No Visible Suffering. The Kevin Zimmerman execution raises more questions about the Texas death march": The Austin Chronicle has this report. Click here for the other side of the story.

"High crime rates leads to study": The Corpus Christi Caller-Times reports here that "[a]n Austin company has been commissioned to conduct a management and efficiency study of the Dallas Police Department, a move that prompted criticism from two City Council members because the city is without a police chief. Several council members said the study must begin immediately because Dallas' crime rates are consistently high among major U.S. cities. The city is looking for a police chief to replace Terrell Bolton, who was fired last summer following a tenure marred by a fake drugs scandal and rising crime rates. Dallas is poised to record the highest per capita crime rate in the country for six years in a row. City officials say they will have hired a new chief by May."

"'It all seemed too good to be true.'": The Austin American-Statesman reports here on an Austin banker accused of embezzlement to pay for NASCAR team.

"Justice checks allegations involving Halliburton subsidiary": "A subsidiary of Halliburton Co. is under scrutiny by the Justice Department over allegations that it was involved in payment of $180 million in bribes to win a natural gas project contract in Nigeria. Vice President Dick Cheney was head of Halliburton at the time." The AP has the rest of the story.

"Area police question statistics on searches. Report on racial profiling raises concerns": The Houston Chronicle reports here that "Houston-area police officials questioned a report on racial profiling Wednesday, saying there are so many variables connected to police work that drawing firm conclusions on police stops and searches is difficult. Houston-area police officials questioned a report on racial profiling Wednesday, saying there are so many variables connected to police work that drawing firm conclusions on police stops and searches is difficult. A statewide study shows police departments such as Houston and others stop and search black and Latino motorists more often than they do Anglo motorists."

"Prairie View students can register and vote in Waller County, AG rules": The Housotn Chronicle reports here that "Prairie View A&M University students who want to register and vote in Waller County must be allowed to do so, Texas Attorney General Greg Abbott said in a ruling issued Wednesday."

"Schizophrenic killer gets 60-day reprieve. Texas' handling of mentally ill again in spotlight": The Houston Chronicle reports here that "[a] federal judge on Wednesday granted an execution stay for a schizophrenic murderer, reopening the debate over how Texas treats mentally ill violent offenders. Scott Panetti was granted a 60-day stay a day before he was to be executed for the 1992 shooting deaths of his estranged wife's parents."

"Judge grants stay to Hill Country killer": The AP reports here that "[a] federal judge Wednesday halted the scheduled execution of a Texas Hill Country killer for at least 60 days to reconsider a claim of mental illness. U.S. District Sam Sparks, who sits in Austin, granted Scott Panetti the stay a day before he was set to die for the 1992 slayings of his estranged wife's parents in Fredericksburg."

"Attorney general clears Prairie View A&M students to vote": The Houston Chronicle reports here that "Prairie View A&M University students who want to register and vote in Waller County must be allowed to do so, Texas Attorney General Greg Abbott ruled today. Abbott said students' rights to vote where they attend school is 'well-established in Texas law.' He said Prairie View students have to show only that they consider Waller County their legal residence -- even if an address is nothing other than a post office box -- and that they intend to vote there."

"Man who stowed away on cross-country flight sentenced": The AP reports here that "[a] man who shipped himself in a wooden cargo crate from New York to Dallas because he was homesick but didn't want to buy an airline ticket was sentenced Wednesday to one year of probation."

Next Week's Submission Schedule for the Court of Criminal Appeals: Here is the Court of Criminal Appeals submission schedule for next Wednesday. The Court will hear two oral arguments.

Court of Criminal Appeals Opinions: The Texas Court of Criminal Appeals published three opinions today. Today's hand down list is also available. The Court granted one PDR (appellant's).

"As gangs rise, so do calls for US-wide dragnet. Los Angeles takes lead in cooperation effort, with national conference and regional database": The Christian Science Monitor has this report.

"Governor asked to stop execution. No dispute over inmate's mental illness, but attorney general's office says the inmate is competent": The Austin American-Statesman has this report.

"LBJ supporters taking complaints to History Channel. Former aides, widow want retraction of program's claims about president's involvement in Kennedy assassination": The Austin American-Statesman reports here that "[f]ormer aides to President Lyndon Johnson and representatives of the Johnson family are meeting with the president of the History Channel today, demanding an independent investigation and a retraction of a November show's claims that LBJ was involved in the Kennedy assassination. The program, called 'The Guilty Men,' was based in part on a book by former Austinite Barr McClellan. Tom Johnson, chairman of the LBJ Foundation board of directors and a former CNN executive, is leading the delegation to New York. 'We will ask the History Channel to conduct an independent investigation into the accusations made in the show and to publish the results of that investigation,' said Johnson, who is not related to the former president."

"Study: Austin police stop and search minority drivers more often than whites. Activists say study proves officers are engaging in racial profiling": The Austin American-Statesman reports here that "Blacks and Hispanics are subjected to traffic stops and searches by Austin police and other Texas law enforcement agencies at higher rates than whites, according to a study released Tuesday. The report shows that blacks are 2.3 times more likely to be searched by Austin police than whites, and Hispanics are 2.2 times more likely to be searched. Austin officers stopped blacks at a rate 1.8 times greater than whites and Hispanics at a rate 1.5 times more frequently. According to the report, 12.3 percent of the blacks and 13.1 of the Hispanics searched in Austin police stops were found with contraband. Anglos who were searched were found with contraband 25.4 percent of the time."

"Anti-death penalty groups plead for inmate's life": The Corpus Christi Caller-Times reports here that "[a]dvocates for a death-row inmate set to be executed this week urged Gov. Rick Perry on Tuesday to grant a 30-day reprieve to evaluate the inmate's mental competency. Scott Panetti, 45, is scheduled to die by lethal injection Thursday for the 1992 shooting deaths of his wife's parents, Jose and Amanda Alvarado, in Fredericksburg."

"Former doctor surrenders after nearly 8 years on run": The Corpus Christi Caller-Times reports here that "[a] former Colleyville doctor has surrendered to federal authorities to face felony charges that he defrauded government insurance programs of millions of dollars and accepted kickbacks for patient referrals. Robert Hadley Gross spent nearly eight years on the run as a fugitive in England. He was in U.S. Magistrate Judge Charles Bleil's court Tuesday for an initial hearing and will face a detention hearing Friday and arraignment Feb. 11."

"County to ask AG for ruling on immigrant health care": The Corpus Christi Caller-Times reports here that "[t]he state attorney general will be asked again to weigh in on whether Texas hospitals can or should provide free or subsidized preventive health care to illegal immigrants. The Montgomery County Hospital District voted 5-2 Tuesday to ask Attorney General Greg Abbott if it must provide such health care under a law passed last year."

"Utilities to fight in court. TXU, PUC deny collusion claims": "Retail energy provider Texas Commercial Energy filed an amended petition in federal court in Corpus Christi on Tuesday again charging that more than 20 companies manipulated the market, causing price spikes." The Corpus Christi Caller-Times has the rest of the story.

Texas Supreme Court Oral Arguments: The Texas Supreme Court will hear oral arguments in three cases today.

"Texas set to execute mentally ill killer": "The simple story of Scott Panetti goes something like this: Facing a possible death sentence for gunning down his in-laws in this Hill Country city, Panetti fired the attorneys he thought were plotting against him and decided to represent himself. He dressed as a cowboy for the trial, submitted a witness list that included Jesus Christ and John F. Kennedy, and rambled on about 'Sarge,' the alter ego he blamed for the killings. Panetti, 45, is mentally ill, a diagnosed schizophrenic and psychotic who had been in and out of institutions for a decade before he committed his crimes. His trial has been described as a circus, but no appeals have overturned his sentence. His execution, scheduled for Thursday, seems almost certain in a state that has killed more prisoners than any other. But there is a more complex tale to tell."

[Link from Knight Rider News Service]

"Retrial begins in death of sex abuse victim, 3": "When paramedics first found 3-year-old Destiny Flores, she appeared lifeless. Her small body was covered with human bite marks, and doctors said she had been sexually abused. Details of the girl's death emerged Tuesday as the trial of her accused killer, Tomas Gallo, began. Gallo, 28, is charged with capital murder and could face the death penalty if convicted of killing his girlfriend's daughter on Dec. 11, 2001. Assistant District Attorney Lance Long told jurors Gallo was known to bite children and that DNA tests would help prove Gallo killed Destiny while baby-sitting her in South Houston. But Gallo's attorneys say the killer is Destiny's mother, Christina Arredondo." The Houston Chronicle has the rest of the story.

"Protesters allege rape victim denied morning-after pill": The AP reports here that "[a]bout 40 people gathered outside an Eckerd store Monday, protesting what they said was a decision to deny a rape victim a prescription for the morning-after pill. A spokesman for the Largo, Fla.-based company confirmed that Eckerd has taken disciplinary action in response to an incident at the pharmacy. 'Apparently there was a request for a prescription to be filled and the prescription was denied based on a moral or ethical decision made by the pharmacist, and that's not in accordance with our corporate policy,' said Joan Gallagher, vice president of communications for Eckerd Corp."

"Logs show juror met with Durst five times in jail": The Houston Chronicle reports here that [a] juror who found Robert Durst not guilty of murder has visited the millionaire real estate heir in jail five times since Durst's trial ended in November. On his most recent trip, juror Chris Lovell brought his wife, according to records at the Galveston County Jail. No other jurors have visited Durst, Galveston County Sheriff's Capt. Joe Gregory said Tuesday."

"Mexico's first lady may run for office": The AP reports here that "[m]embers of President Vicente Fox's political party have formed a committee to back the first lady in a run for Mexico City mayor - despite polls consistently showing her as a leading presidential candidate, a newspaper reported Monday."

"McFarland trial starts this week": Ihosvani Rodriguez, of the S.A. Express-News, has this very well written article on the case.

"Houston's black drivers searched far more often than whites": The Houston Chronicle reports here that "[b]lack motorists stopped by the Houston Police Department are 3.5 times more likely to be searched than Anglos, the worst disparity reported by any major Texas city, according to the first statewide compilation of statistics since law enforcement agencies were required to report racial data on traffic stops. An analysis of the data from 2002, released today, also found that Hispanic drivers stopped by HPD officers are 2.4 times more likely than Anglos to be searched." (Click here to download full report.)

The Lethal Injection Process: from the perspective of an anesthesiologist: State Senator Kyle Janek (R-Houston) has this op-ed in the Dallas Morning News.

[Link from TDCAA]

"Fort Worth considers a crackdown on litter": The Fort Worth Star-Telegram reports here: "[a] word of advice: Keep your trash off sidewalks, out of the yard and away from anyone else's private property. Or you could be charged with littering and face a fine of up to $2,000. The city staff proposes beefing up Fort Worth's litter ordinance to crack down on residents who violate the rules of the city's nearly 1-year-old trash program."

"Oklahomans ready to make votes count": "For the first time in years, the Sooner State has an important role in choosing a presidential candidate." The Fort Worth Star-Telegram has this report.

5th Circuit: The 5th Circuit did not release any published opinions yesterday.

"New law pushes cost estimates on Medicare": The AP reports here that "[t]he Bush administration figures that more than 12 million seniors will be enrolled in managed care plans under Medicare within five years, a threefold increase that is driving higher cost estimates for the new Medicare law. The president's 2005 budget devotes $13 billion to the recently enacted overhaul of the government health care program for 40 million older and disabled Americans. The money will pay for modest prescription drug subsidies for low-income seniors, increased payments to health maintenance organizations in Medicare and preparations for the prescription drug benefit that begins in 2006."

"Official takes 3 homestead exemptions": The Houston Chronicle reports here that "[t]he Harris County Appraisal District is investigating how one of the state's most respected school superintendents has claimed homestead exemptions on three separate houses. Records show that Carrol A. Thomas of the Beaumont Independent School District has exemptions at his actual home in Beaumont and two on properties he owns in Humble, reducing the taxes he pays to public schools. Claiming fraudulent exemptions, such as more than one homestead, is a felony punishable by jail time, said Jim Robinson, Harris County's chief appraiser. In this case, he said, due to a statute of limitations and late discovery of the problem, the appraisal district likely will be pursuing a collection of back taxes and a penalty."

"Gay student loses Baylor seminary scholarship": The AP reports here that "[a] former student at Baylor University's George W. Truett Theological Seminary says losing his scholarship because he is gay is unfair. Matt Bass told his friends he is gay last spring, and word began to spread. When Truett officials met with Bass last fall, he would not answer questions about his lifestyle but acknowledged that he supports gay rights and marriage. He was notified in December that he would lose his scholarship, money from Truett and the Baptist General Convention of Texas. Bass, 24, of Rowlett, was not expelled but left after the fall semester because he could not afford tuition. Bass, who did not earn his undergraduate degree at Baylor, had been at Truett since 2001. Paul Powell, the seminary's dean, declined to discuss Bass' case but said homosexual behavior is forbidden in the Bible and thus inconsistent with Truett's mission."

"Ex-agents get prison in immigrant's death. U.S. attorney say rulings send message": The Houston Chronicle reports here that "[i]n rulings hailed as the first of their kind, a Houston federal judge sentenced three former immigration agents to prison Monday for denying medical care to a paralyzed illegal immigrant who later died of his injuries. A federal jury convicted the three men in June of acting with deliberate indifference for failing to get timely medical care for Serafin Olvera after his neck was broken during a struggle with immigration agents in Bryan on March 25, 2001. Olvera, a Mexican citizen who had been living in Houston since 1977, died in February 2002. U.S. District Judge Lee Rosenthal sentenced Richard Henry Gonzales to 78 months in prison, Louis Rey Gomez to 41 months and Carlos Reyna to 33 months."

"Shades of 'Lawrence.' Scalia's dissent in Texas sodomy case is echoed in a Utah action": "In his dissent to the Supreme Court's landmark invalidation of a Texas sodomy law last year, Justice Antonin Scalia expressed fear that state laws banning other behavior, including bigamy, would fall in its wake. Scalia may have sounded like Chicken Little to some. But a challenge to anti-polygamy rules in Utah may change skeptics' minds. The attorney for a man, his lawful wife and a second would-be wife says the case is analogous to the Texas case." Leonard Post of the National Law Journal has this report.

Approaching the Court: "Tennessee v. Lane began with a handicapped defendant who had to crawl up steps to reach a second-floor Tennessee courtroom. The case became a vehicle to call attention to the treatment of the disabled at all courts, including the Supreme Court itself, where protesters rallied this month. And inside, a milestone was achieved when a deaf lawyer who wanted to observe arguments was allowed to use a stenographer to make a real-time transcription." Tony Mauro of the Legal Times has this report.

"Unable to Duck the Issue": Tony Mauro of the Legal Times reports here that "[t]he controversy over the early January Louisiana duck-hunting sojourn Justice Antonin Scalia took with Vice President Dick Cheney won't go away. Editorialists nationwide have called for Scalia to recuse from the forthcoming case In re Cheney because of the trip. On Jan. 30, Reps. Henry Waxman, D-Calif., and John Conyers Jr., D-Mich., asked the Court to draw up recusal procedures. Soon the talk may turn to action. The Sierra Club, one of the groups that brought the case to force Cheney to reveal information about his energy policy task force, is seriously considering filing a request with Scalia to recuse. Officials of Judicial Watch, the other party in the case, could not be reached for comment."

"Voters can use expired cards": The Fort Worth Star-Telegram reports here that "[v]oters registered in Tarrant County will be able to use expired voter cards to cast ballots in nine municipal, school and water-district elections being held in the county Saturday, authorities said. County officials were delayed in mailing new voter cards until the new congressional districts were upheld Jan. 6 by a three-judge federal panel. Officials in some North Texas counties, including Johnson, Parker and Dallas, started mailing new voter cards after the court-ordered mailing delay was lifted Jan. 11. But Tarrant County officials, citing changes in more than 200 precincts in five congressional districts, won't mail new cards until the third week of February, just before early voting starts for the March 9 primary election."

"34 years on the run will add up. Ex-Tomball resident answering to 2 states": The Houston Chronicle has this report which begins: "[a] prison break is not quite that unusual, especially if you're Donald F. Johnson. The former Tomball resident, who had been on the lam for more than 30 years, did it twice -- first in California in 1967 and then in Florida in 1970. And he probably would still be free if not for a California Department of Corrections investigator who started a project to catch fugitives missing for more than 20 years."

"State probing Kerr facility": The San Antonio Express-News reports here that "[a] criminal investigation is under way into whether the Kerr County Juvenile Facility submitted fraudulent documents to the Texas Commission on Alcohol and Drug Abuse to obtain a substance abuse treatment license in 2002."

Election news: The San Antonio Express-News reports: "District 80 getting set for rematch."