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Androvett Blog

by Robert Tharp at 4:51:15 pm

As one of 20 states that still allow corporal punishment in schools, more than 49,000 Texas students received licks during the 2006-2007 school year, putting Texas at the top of the list, according to the Fort Worth Star-Telegram. Writes the Star-Telegram: the punishment continues to be a controversial and confusing subject, partly because school districts make their own policies and the line between discipline and abuse can be blurred.

HB359 allows parents to have some control over whether their children are paddled. The new law allows parents to forbid school districts from using corporal punishment on their children.

“This is a small victory in the war to prevent child abuse,” says Jeff Rasansky, whose clients at the Rasansky Law Firm include families whose children who have suffered abuse from caregivers at daycare centers. “Many people are still surprised to learn that children are abused physically, emotionally or sexually by daycare or other child care providers like nannies, babysitters, family members or teachers.”

 



 

by Robert Tharp at 4:18:56 pm

When Houston restaurant patron posted a tweet calling the nearby bartender a “twerp” and ending her message with a hashtagged vulgarity, she probably knew the note would raise a few eyebrows. But the last response she likely expected to receive was a phone call from the general manager asking her to leave immediately. Despite the knocks he has received for the decision, he says he refuses to allow his employees to be “bullied,” and did not hesitate in making that call.

The incident served to reignite the debate over what constitutes libel and slander in the digital era, an issue that Peter S. Vogel, co-chair of the Internet, eCommerce and Technology Industry team at Gardere Wynne Sewell LLP, says will be difficult to resolve.

“Applying legal standards to millions of tweets is extremely difficult since this communication phenomenon does not fit nicely into accepted legal standards of libel and slander,” says Vogel, who also serves as a Law of the Internet Adjunct Professor at Southern Methodist University’s Dedman School of Law.
The cybersmear litigation that has evolved at the courthouse limits liability if there is a “grain of truth” to the Internet statement and in this case, the patron’s tweet complaining about the bartender “appears that it might have that grain of truth,” says Vogel. “However, until actual cases are brought to court, it’s not clear that libel and slander will ever apply to tweets.”

by Robert Tharp at 3:40:15 pm

In a law aimed directly at Westboro Baptist Church’s inflamatory protests of military funerals, HB718 makes it a crime to picket near any Texas funeral ceremony. According to the new law, protestors must cease three hours before a ceremony begins and wait for three hours to pass before resuming pickets.

Rep. Allen Fletcher, R-Tomball, says he drafted the law in direct response to the protests by Kansas-based Westboro Baptist Church, whose members have received national attention for their protesting of funerals for fallen U.S. soldiers, holding up signs with gems like: "Thank God for dead soldiers" and "God Hates the USA/Thank God for 9/11."

In March, the Supreme Court sided with Westboro Church in a civil lawsuit regarding a 2006 protest of U.S. Marine Lance Cpl. Matthew Snyder. Matthew Snyder’s father Albert Snyder sued the church for damages, but the Supreme Court ruled 8-1 that the church’s speech fell under the “special protection” of the First Amendment. However, the court declined to evaluate the constitutionality of the more than 40 state statutes that have passed picketing restrictions, including HB718.

“This law is certain to be challenged on constitutional grounds,” says appellate lawyer Rick Thompson, whose practice at Dallas-based Hankinson Levinger includes constitutional law.

by Robert Tharp at 2:52:29 pm

Truckers, start your engines. HB1201/HB1353 bumps up the maximum speed limit in Texas to 85 mph. The higher speed limit will be applied to stretches of Texas roads deemed suitable by state officials – Texas currently has more than 520 miles of interstate highways where the speed limit is 80 mph. The law also does away with a separate, lower nighttime speed limit for big trucks. So as of tomorrow, big rigs and four-wheelers will have the same nighttime speed limits.

Writes the USA Today: According to the Insurance Institute for Highway Safety, high speeds were a factor in about one-third of all fatal crashes in 2009. The faster you're traveling, the greater the distance needed to bring your vehicle to a complete stop and the longer it takes a driver to react to emergency situations, according to IIHS. If an accident does occur at a higher speed, there is a strong likelihood that the crash impact will exceed the protection available to vehicle occupants. On top of safety concerns, speeding increases fuel consumption. Every 5 mph you drive over 60 mph is like paying an additional $0.24 per gallon for gas, according to the U.S. Department of Energy.

“Even though the law says that the 85 mph speed limit will be permitted only on highways designed to accommodate travel at that speed, this doesn't account for human errors that we know are common in driving, as well as the mechanical failures that are bound to happen at such high speeds,” says Steven C. Laird, whose practice at The Law Offices of Steven C. Laird includes trucking wrecks caused by driver carelessness, sleep deprivation, intoxication, fires, bad brakes and other preventable events.



by Robert Tharp at 11:50:40 am

Created in response to the daylight abduction of 9-year-old Amber Hagerman from an Arlington parking lot in 1996, the state’s Amber Alert system has spread across the country and beyond as a useful tool for soliciting the public’s help in quickly finding lost or abducted children.

Starting Sept. 1 under HB1075, the state will broaden the Amber Alert umbrella to include allowing its use for cases involving missing adults diagnosed with developmental disabilities, such as Alzheimers and other forms of dementia. “Many would be surprised to learn how common it is for adult caregivers to lose track of their developmentally disabled patients and relatives,” says Jeff Rasansky of the Rasansky Law Firm. “This law will employ the vast resources of the AMBER network to help find these individuals.”

The Amber Alert is a voluntary partnership between law-enforcement agencies, broadcasters, transportation agencies, and the wireless industry, to activate an urgent bulletin in the most serious
child-abduction(and now missing adult) cases. The goal is to instantly galvanize the entire community to assist in the search for and the safe recovery of the child.

by Robert Tharp at 11:09:55 am

At No. 7 on the Androvett Legal Media countdown of the top new Texas laws for 2011, HB2678 requires that driver’s education teachers in Texas undergo a criminal background check before they’re allowed to teach. HB2678 marks a continuation of efforts to crackdown on improper teacher-student relationships. In 2003, Texas legislators made it felony for a teacher to have sex with a student, regardless of the student’s age or consent.

Chuck Noteboom, whose practice includes filing civil lawsuits against sex offenders, says the law may have the best intentions, but a larger problem is the state’s statute of limitations for reporting such offenses. “This amounts to a Band-Aid on an amputation,” Noteboom says. “If they really want to protect people, they should eliminate Texas’ statute of limitations on sexual assault charges, because 80 percent of all rapes go unreported, mostly due to shame and repressed memories. A recent Dallas Morning News report found at least 19 reports of sexual relationships between teachers and students in North Texas since January 2010. Such relationships are a second-degree felony, regardless of the student’s age or whether the sex was consensual. The penalty ranges from two to 20 years in prison.

by Robert Tharp at 11:50:24 am

At No. 8 on the Androvett Legal Media Top 10 list of new Texas laws is HB451, creating a “Don’t Mess With Texas Water” program. Come September 1, motorists will begin seeing signage at major highway water crossings with a toll-free hotline to report illegal dumping.

Backers of this law point to illegal dumping as a major environmental and public health issue that can significantly impact Texas lakes and rivers. The nature of illegal dumping -- often under the cover of darkness or out in rural areas -- makes it difficult for law enforcement agencies to combat this crime. According to a recent report by the Texas Legislative Study Group on the State of Our State, Texas ranks first in the amount of toxic materials released into the water.

“The goal here is fiscal efficiency,” says Houston lawyer Todd Mensing of Ahmad Zavitsanos & Anaipakos, who represents Harris County in pollution cases. “These are lean budgetary times. This is a low-cost, but potentially highly effective deterrent for illegal dumping, which is a growing public health concern in this state.”

by Robert Tharp at 3:59:36 pm

Coming in at No. 9 on Androvett Legal Media's list of the Top 10 new Texas laws for 2011, is HB2707, which empowers the Texas Alcoholic Beverage Commission or a county judge to shut down bars that have a documented history of bar fights or other violence. Like most of the newly created laws, it becomes effective Sept. 1.

The measure is known as “Erik’s Law” in memory of 26-year-old Fort Worth resident Erik Ozuna, who was killed in March 2008 in a volley of gunfire inside a Fort Worth bar. Before a 21-year-old man pulled a gun and started firing randomly into the crowd inside the bar, police had responded to more than 400 incidents there.

“This new law puts a premium on each bar not just adopting, but rigorously implementing employee training and enforcing responsible retailer policies, which is a big part of my practice,” says Andy Siegel from Shackelford Melton & McKinley, whose practice includes alcoholic beverage regulation. “It also means that bar and restaurant owners will need legal counsel to help design preventive programs and be ready to act to challenge any alleged violations in order to allow for continued business operations.”

by Robert Tharp at 11:34:37 am

September in the Lone Star State means the return of Big Tex and the State Fair of Texas, football and, this year, the enactment of nearly 1,500 new laws passed by Texas lawmakers in the last session. Some of us at Androvett Legal Media & Marketing have compiled our top 10 new laws that take effect in Texas on Sept. 1, with comments from lawyers with expertise in these areas.  And so begins our countdown to Number 1.

Coming in at Number 10 is what our lawmakers affectionately dubbed the Pork Chopper (HB716), which will allow Texas landowners to rustle up hunters willing to pay for the opportunity to shoot feral hogs and coyotes by helicopter. The law allows property owners to "lease" helicopter seats for hog and coyote hunts. As Texas Monthly reports in its August edition, "With a population now exceeding 2.6 million, feral hogs in Texas have hit critical mass. Females can have up to two litters a year, with an average of five to six piglets each, and they are outbreeding deer, humans and every other large mammal in the state...they roam in packs, long-toothed and short-tempered, willing to eat nearly anything, including their young."

Curtis L. Frisbie Jr., an antitrust and commercial litigation lawyer at Gardere Wynne Sewell, calls the law a positive step. “I am very much in favor of helicopter shooting of feral hogs,” says , and an avid hunter. “They are a pest and a menace, and cause a lot of property damage. Ask any Texas rancher. The National Rifle Association says that feral hogs cause an estimated $400 million in damages in Texas every year. Texas has the largest population of feral hogs in the US.  It is estimated by some that there are 4 million feral hogs in U.S. That number will only increase.” 

 

by Robert Tharp at 1:55:37 pm

With little fanfair, the U.S. Department of Transportation has quietly increased safety oversight of busing companies, taking more dangerous motor carriers off the road in the last two years than in the previous nine years combined.

Writes the Commercial Carrier Journal: The Federal Motor Carrier Safety Administration(FMCSA) also has doubled the number of bus inspections and safety reviews of the nation’s estimated 4,000 passenger bus companies. Roadside inspections of motorcoaches have jumped nearly 100 percent, from 12,991 in 2005 to 25,703 in 2010, while compliance reviews are up 128 percent, from 457 in 2005 to 1,042 in 2010. In addition, FMCSA has initiated a greater number of enforcement cases against unsafe passenger carriers under the current administration: these cases have risen from 36 in 2008 to 44 in 2010.

The DOT now is asking Congress to allow greater ability to conduct safety inspections of buses and trucks and to require new motorcoach companies to undergo stringent safety audits. Transportation attorney Chuck Noteboom says the focus on bus safety is necessary. "Too often we've seen the deadly results of fly-by-night bus and truck operators who have been allowed to avoid scrutiny for too long," he says.

According to the CCJ, in May, FMCSA and its state and local law enforcement partners conducted more than 3,000 surprise passenger carrier safety inspections over a two-week period that resulted in 442 unsafe buses or drivers being removed from the nation’s roadways. The strike force took 127 unsafe drivers and 315 unsafe vehicles off the road during these unannounced inspections.

by Dave Moore at 2:58:58 pm

If Suzy’s lacrosse game runs long, it might make for a thrilling finish. But if the overtime encroaches upon the agreed-to visitation time of a divorced parent, it also can reignite simmering tensions over custody, cautions McCurley Orsinger McCurley Nelson & Downing LLP attorney Elizabeth Durso Branch.

“Extracurricular activities, particularly when they occur during visits with the non-custodial parent, can be the cause of a surprising amount of conflict,” she says, adding that custody orders should be as specific as possible to help defuse potential conflict.

Branch says that effective custody orders should require both parents to agree upon both the number and types of extracurricular activities a child can participate in. Updated copies of custody orders, a list of emergency contacts and any protective orders should be provided to the child’s school so that the administration will know with certainty who is authorized to pick a child up after school or remove them from classes during the day.

by Dave Moore at 10:42:25 am

Perhaps the sweetest reward for former Tiger Woods caddie Steve Williams came with Adam Scott’s Aug. 7 victory at the World Golf Championship-Bridgestone Invitational. Williams, of course, caddied for Woods before the now-fallen star unceremoniously terminated their 12-year relationship. After his dismissal, Williams carried a golf bag for Scott, who scored his first world championship in golf in Akron.

Now, Williams is basking in the post-tournament glow, and is threatening to write a tell-all book about Woods and his innumerable personal indiscretions.

Woods’ poor handling of the Williams discharge should serve as a lesson to executives who face the prospect of severing ties with long-term employees, according to Houston employment attorney Neil Martin of Gardere Wynne Sewell LLP. Martin says managers need to treat loyal and long-tenured workers with the respect they deserve when ending their employment.  "Subordinates' loyalty following discharge by a highly visible executive is always a concern for any business that promotes the public posture of that executive, especially if the executive has a history of questionable lifestyle choices," says Martin. “Confidentiality contracts can also help limit the risk of embarrassing exposés,” Martin says.

The best vaccination against employee retribution, however, is to show outgoing workers the appreciation and consideration that anyone at the end of a long-term relationship deserves, Martin says.

by Dave Moore at 10:36:52 am

Rarely do state officials find themselves in the deposition hot seat, given the sovereign immunity that states enjoy from litigation. But the legal case of Texas Mega Millions Lottery winner Willis Willis is far from typical. Back in 2009, Willis bought a winning $1 million Texas Lottery ticket. Yet when he approached Texas Lottery agent and convenience store clerk Pankaj Joshi to check his numbers, Joshi lied, telling him that he didn’t win. The clerk then drove to the lottery’s headquarters in Austin and claimed Willis’ prize.

It’s been an uphill legal slog for Willis since then, but he’s scored a recent win, in which a Travis County judge has ordered lottery officials to answer key questions under oath regarding lottery fraud in Texas. “This is an important ruling because the success of the Texas Lottery hinges on the public’s confidence in the integrity of these games,” says Sean Breen of Austin-based Howry Breen & Herman. “The lottery so far has refused to acknowledge its role in this and other thefts by store clerks, and it’s about time they provide some answers to these questions.”

The situation of Willis might to seem unique, but as Dateline NBC reports, clerks in California and New York have also been caught pocketing prizes intended for lottery winners.

by Erin Dooley at 4:44:02 pm

We all know about Andy Warhol’s 15 minutes of fame, but in this rapidly changing media environment there’s a component to the 24/7 news cycle and multiplying social media platforms that can be terrifying to businesses. After all, a contentious lawsuit, a misguided communication, or a particularly vehement onslaught of client complaints can clog the gears of any business, bringing the usually well-oiled company machine to a grinding halt and—perhaps even worse— ruining the company’s reputation.

A new Androvett Legal Media & Marketing white paper, “The Lawyer’s Role in the Company Crisis,” provides a broad overview to help law firms prepare for and deal with a public relations crisis.

In the paper, Androvett Legal Media’s Mike Androvett, Mark Annick and Mary Flood describe key considerations that firms should review before a crisis occurs. The white paper addresses basics such as assembling a crisis team, identifying key stakeholders, designating spokespeople, crafting an honest, comprehensive message and, where appropriate, gracefully admitting guilt. To that end, it includes a list of questions all response messages must answer, including “What impact does this have on the customer?” and “What is the company doing to ensure this never happens again?”

In today’s 24/7 news cycle, a company easily can become a punch line overnight, even if eventually it wins in court. Said another way, the value lost in diminished reputation may far outweigh the cost of litigation…There should be an emphasis on speed, clarity and truth-telling, even in the face of negative publicity. Although the facts may be against you, many companies learn a painful lesson when they try to run away from bad news or, worse, fudge the facts.

“The Lawyer’s Role in the Company Crisis” also fiercely attacks the ‘no comment’ tactic taken by so many businesses today.  “The tension between the lawyerly instinct to stay mum in anticipation of litigation, and the need to speak candidly internally and externally to soothe and reassure stakeholders is a classic tug of war in many crisis situations.”

The paper underscores the essential irony of crisis communications that many learn only after it’s too late: companies are often punished more for how they mishandle a crisis than for the crisis itself.

Click here to read “The Lawyer’s Role in the Company Crisis.”

 

 

by Dave Moore at 9:19:16 am

Human resource managers and pension plan administrators should know about a recent court decision involving the effect of a change in marital status for several pilots employed by Continental Airlines Inc., Rose●Walker attorney Jody Rudman told Texas Lawyer senior writer John Council recently on the Texas Lawyer video blog “Reversed and Remanded.”

The case discussed by Rudman and Council involved a Continental pilot retirement plan that included a lump-sum distribution to ex-spouses through Qualified Domestic Relations Orders. When the airline’s pension plan administrators questioned whether some divorces involving continental pilots were shams, the administrators sued to get the lump-sum payments back. The pilots and their ex-spouses, with whom each had now reconciled, won.

On July 18, the U.S. Court of Appeals for the Fifth Circuit affirmed a ruling that the Employee Retirement Income Security Act of 1974 (ERISA) doesn’t allow plan administrators to question the intentions or the good faith of a divorce.

Rudman says the decision could present similar issues for benefit plan administrators at other companies: “I would say to the plan administrator, take a good hard look at the terms of your employee benefit plan, so if something like this comes up again, (if) you get a Domestic Relations Order, and have no choice but to qualify it under the terms of erisa, what will you be looking at paying out?”

Yet as the Fifth Circuit’s opinion indicated, Rudman said the decision was a narrow one.

“I don’t know if this opens the floodgates necessarily,” she told Texas Lawyer. Rudman reiterated that while the case is an important one to know about, it involved a unique set of facts and appeared to be a case of first impression.