1994 SeptOct Docket Call

Danny Easterling
J
1018 Preston 6th fl.
Houston, TX 77002
September/October 1994
A Publication of Harris County Criminal Lawyers Association
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HCClA
Officers &Directors
1994-1995
President . ...... .... . .... .Jim Skelton
President-Elect . ...............George Parnham
Vice-President .......... ... MarkA.Goldberg
Treasurer. ....Dick Wheelan
Secretary . ......Kenneth W. Smith
ImmediatePastPresident ..... Dan Cogdell
Chairman ofthe Board ... Lloyd W. Oliver
Directors:
LorenA. Detamore
JosephA.Porto
Mary E.Conn
Danny Easterling
Wayne Heller
Clyde Williams
Judith Martin Prince
W.B. Bennie House.Jr.
J. Charles Whitfield
John E. Crow
HarryA. Loftus, Jr.
Jonathan Munier
Will Outlaw
MosesM. Sanchez
Winston E. Cochran, Jr.
Past-Presidents 1971-1994
C. Anthony Friloux (1 972-1973)
StuartKinard (1973-1974)
George Luquette (1974-1975)
Marvin O. Teague (1975-1976)
Dick DeGuerin (1976-1977)
W. B. "Bennie" House,Jr. (1977-1978)
David R. Bires (1978-1979)
Woody Densen (1979-1980)
Will Gray (1980-1981)
EdwardA. Mallett (1981-1982)
Carolyn Garcia (1982-1983)
Jack B. Zimmermann (1983-1984)
Clyde Williams (1984-1985)
Robert Pelton (1985-1986)
Candelario Elizondo (1986-1987)
Allen C. Isbell (1987-1988)
David Mitcham (1 988-1989)
Jim E. Lavine (1 989-1990)
Rick Brass (1990-1991)
Mary E. Conn (1991-1992)
Kent A.SchaHer (1992-1993)
Dan Cogdell (1993-1994)
President'sClub
David Cunningham
Kent A. SchaHer
Docket Call
Editor . ... Allen C. Isbell
AssociateEditor .Robert Pelion
Polson Pen .. Louis F. Linden
Design& Production . ....Donna K. Kleszcz
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DOCKETCALL September/October1994
Contents
...
From the President ...........................................2
Texas Capital Sentencing Statute's Definition of"MitigatingEvidence" is
Facially Unconstitutional ..... .............. ............6
Hearsay .................... ....7
Primerfor HandlingaGrievanceComplaintfor the Honest and
ConscientiousLawyer .......................................9
To Tell the Truth ....... ....................... .15
COUltrooms On the Range .17
EncourageClients and Friends to Vote ....19
LET'S HEAR FROM YOU!
CONTINUINGLEGALEDUCATION
...
WEDNESDAYAPPELLATE UPDATES
30I San Jacinto
12:00 noon, 177th District Court01:00MCLE
HCCLANuts& BoltsSeminarSeries1994
183rd DistrictCourtroom, 30I San Jacinto, 12:00 Noon Friday.
November4,1994 CrossExamination- Ed Mallett
December2, 1994 ClosingArguments- Dick Wheelan
November10, 1994 HCCLABoardMeeting,Thursday noon, Scanlan Bldg.,
December8,1994 405 Main,2nd floor conference
October27,1994 HCCLALuncheonMeeting
Treebeard'satTheChurch, 1117 Texas, 2nd fl. church aud.
12:00 noon Thursday.
Hon. CharlesF. Baird
SignificantDecisions,CourtofCriminal Appeals
November2- 4,1994 "DefensesThatWork"
Doubletree Hotel - Post Oak, Houston NACDL
Call 202-872-8688
WarrantlessSearchWarrantsWorkshop
December9& 10, 1994 Jim Skelton, Innova Bldg., 20Greenway Plaza
December9- 11, 1994 National CriminalDefense College
Theories & Themes- An Advanced Course in Persuasion
Denver, CO (912)746-4151 for information.
WARRANTLESSSEARCH WARRANTSWORKSHOP - Dec.9- 10,1994
~ O M E MEN LOOK AT CONSTITUTIONS WITH SANCTIMONIOUS REVIORENCE, AND DEEM
THEM LIKETHE ARK OF THE COVENANT, TOO SACRED TO BE TOUCHED. THEY
ASCRIBE TO THE MEN OF THE PRECEDING AGE A WISDOM MORE THAN HUMAN, AND
SUPPOSE WHATTHEY DID TO BE BEYOND AMENDMENT."
- Thomas Jefferson, letter to Samuel Kercheval, July 12, 1816
DOCKETCALL I
SEPTEMBER/OCTOBER 1994
97'rom the
BY JIM SKELTON
[Editor's Note: In this issue, President lim Skelton presents a useful reference guide to all
Penal Code offenses and their punishment. In the next issue, he will present a similarly use-
ful reference guide to all Drug Offenses and their penalties.]
PENALTIES
Felonies:
F-I Life or 5-99 years, may fine not to
exceed $10,000.
F-2 2-20 years, may fine not to exceed
$10,000.
F-3 2-10 years, may fine not to exceed
$10,000.
FA 180 days - 2 years may fine not to
exceed $10,000
Misdemeanors:
M-A Up to I year injail, may fine up to
$4,000.
M-B Up to 180 days in jail, may fine up
to $2,000.
M-C Fineup to $500.
OFFENSES:
Abuse of a Corpse. (42.08) M-A
Abuse of Official Capacity: 39.02
Violates a law relating to capacity. 39.02
M-A
Misuses property less than $20. (39.02)
M-C
Misuses property $20-$500. (39.03) M-B
Misuses property $500-$1,500. (39.03)
M-A
Misusesproperty$1,500-$20,000. (39.03)
F-4
Mi suses property $20,000-$100,000.
(39.03) F-3
Misuses property $100,000-$200,000.
(39.03) F-2
Misuses property more than $ 200,000.
(39.03) F-I
Acceptance of Honorarium (Public
Servant). (36.07) M-A
Aggravated Perjury. (37.03) F-3
Aggravated Robbery. (29.03) F-l
Aggravated Sexual Assault. (22.021) F-
I
Agreement to Abduct from Custody.
(25.031) F-3
Aiding Suicide: (22.08)M-C
Causesuicide/seriousbodilyinjury (22.08)
FA
Arson: (28.02) F-2
Deathorserious bodily injury. (28.02)
F-I
Assault: (22.02)
Aggravated. (22.02) F-2
Aggravated (by a public servant) .
(22.02) F-l
Aggravated (victim is public servant).
(22.02) F-l
Aggravated (retaliation). (22.02) F-l
Bodily injury. (22.01) M-A
Physical contact. (22.01) M-C
Threats. (22.01) M-C
Bail Jumping/Failure to Appear:
38.10 M-A
Fine only. (38.10) M-C
Felony. (38. 10) F-3
Barratry: (38. 12)
Solicits/financessolicitation (38.12) F-3
Sends anotherto solicit. (38. 12) M-A
Sends another to solicit(priors). (38.12)
F-3
Bigamy. (25.01) M-A
Boating While Intoxicated. (49.06) M-B
72 hours minimum confinement
One prior. (49.09) M-A
15 days minimum confinement
Two priors. (49.09) F-3
Serious bodily injury. (49.07) F-3
Breach of Computer Security: (33.02)
No benefit/harm.(33.02) M-A
Benefit/harm less than $20,000.(33.02)
FA
Benefit/harm more than $20,000. (33.02)
F-3
Bribery (Commercia\). (32.43) FA
Fiduci ary gaining benefit-fine double
benefit
Bribery (Public Official). (36.02) F-2
Burglary: (30.02)
Building. (30.02) F-4
Habitation. (30.02) F-2
Habitation;felony otherthan theft.
(30.02) F-l
Coin operated machine. (30.03) M-A
Vehicle. (30.04) M-A
2DOCKETCALL
CapitalMurder. (19,03) LifelDeath
Child Pornography-PossessionJ
Promotion. (43,26) F-3
Civil Rights Violation - Prisoners:
39,04 M-A
Failure to report prisoner ' sdeath.(39.05)
M-B
CoercionofPublicServantNoter:
(36.03) M-A
Threat to commit felony, (36.03) F-3
CommunicatingGamblingInformation.
(47.05) M-A
ConsumptionofAlcohol in Motor
Vehicle. (49.03) M-C
CreditCardAbuse. (32,32) F-4
CreditCardLaundering: (32,35)
Less than $20, (32.35) M-C
$20-$500, (32,35) M-B
$550-$1,500. (32.35) M-A
$1,500-$20,000. (32,35) F-4
$20,000-$100,000. (32.35) F-3
$100,000-$200,000. (32.35) F-2
$200,000ormore. (32.35) F-1
CriminalAttempt. 15.01 Degree lower
CriminalConspiracy. (15.02) Degree
lower
CriminalInstrument: (16.01)
Possess with intent. (16.01) Degree
lower
Manufactures. (16.01) F-4
CriminalMischief: (28.03)
Lessthan $20. (28.03) M-C
$20-$500, (28.03) M-B
$500-$1,500. (28.03) M-A
$1,500-$20,000. (28,03) F-4
$20,000-$100,000. (28.03) F-3
$100,000-$200,000.(28,03) F-3
$200,000or more. (28.03) F-I
Less than $1,500; impairpublic services.
(28,03) M-A Less than $20,000; church/
monument/etc, (28.03) F-4
Substantial inconvenience(28.03) M-C
CriminalNegligent Homicide. (19.05)
CriminalNon-support. (25.05) F-4
CriminalSimulation. 32.22 (M-A)
CriminalSolicitation: (5.03)
Capital Murder. (15.03) F-I
SecondDegreeFelony. (15.03) F-2
CriminalTrespass: (30.05) M-B
Habitation/shelter. (30.05) M-A
Carriesdeadly weapon. (30,05) M-A
CrueltytoAnimals. (42.09) M-A
Dogfighting (fighting/training). (42.10)
M-A
Dog fighting (money/property). (42.10)
F-4
Dog fighting (spectator). (42.10) M-C
Deadly Weapon - Penal Institution.
(46.10) F-3
DeceptiveBusinessPractices: (32.42)
Using false weight/selling less. (32.42)
M-C
Intentional orpriors, (32.42) M-A
Selling adulterated/ misrepresenting.
(32.42) M-A
DestructionofFlag. (42.11) M-A
Disorderly Conduct: (42.01) M-C
Displays/discharges firearm. (42,01) M-B
Official Proceedings. (38.13) M-A
DisruptingMeeting/Procession. (42.05)
M-B
DogFighting: (42.10)
Causeafight ortrain for fighting. (42.10)
M-A
Earn money from fight orown property.
(42.10) F-4
Spectatorat fight. (42.10) M-C
DrinkingWhileDriving. (49.03) M-C
DrivingWhileIntoxicated: (49.04) M-8
Open container. (49.04) M-8
6days minimum confinement
EmploymentHarmfulto Children
(43,251) M-A
EndlessChainScheme. (32.48) M-B
EngaginginOrganizedCriminal(71.02)
Activity. Onedegree higherConspiring to
engage. (71.02)
Thesamedegreeas the mostserious
offense Renunciation before the offense.
(71,02) Thesamedegree as the most
seriousoffenseRenunciationofconspiracy
to engage.(71.02) Degree lower
Enticinga Child. (25.04) M-B
Escape: (38.06) M-A
Felony/confined in correctional institution
(38,06) F-3
Causes bodily injury. (38.06) F-2
Causes serious bodily injury/deadly
weapon. (38.03) F-l
Facilitating, (38.07) M-A
Facilitating(felony/confined in correction-
al institution). (38.07) F-3
Facilitating(deadly weapon) .(38.07) F-2
Implements. (38.09) F-3
Implements (deadly weapon) . (38.09)
F-2
EvadingArrestlDetention: (38.04)
M-8
Serious bodilyinjury ordeath. (38.04) F-3
Failureto Identify; (38.02) M-C
Fugitive. (38,02) M-8
Failureto ReportPrisoner'sDeath
(39,05) M-8
FalseAlarmlReport: (42.06) M-A
Public school/public facility. (42.06) F-4
False Identification as Peace Officer
(37,12) M-B
FalseImprisonment: (20.02) M-B
Risk serious bodily injury. (20.02) F-3
False Report to a Police Officer (37.08)
M-8
FalseStatementforCreditlProperty
(32.32) M-A
FlyingWhileIntoxicated (49.05) M-B
Serious bodily injury.(49.07) F-3
Forgery: (32.21)
Will/deed/check/commercial instrument.
(32,21) F-4
Money/securities/postagestamps. (32.21)
F-3
Governmentrecord . (32.21) F-3
FraudulentDestructionJRe-movalof
Writing (32.47) M-A
Will/C0 dici1/M0 rtgage/Security
Agreement. (32.47) F-4
FraudulentTransferVehicle: (32.34)
Under$20,000. (32.34) F-4
$20,000or more. (32.34) F-3
Gambling. (47.02) M-A
Gambling - Communicating Information.
(47.05) M-A
GamblingParaphernalia. (47.06) M-A
GamblingPlace- Keeping. (47,04)
M-A
GamblingPromotion. (47.03) M-A
GifttoPublicServant: (36.08) M-A
Offering gift. (36.09) M-A
HarboringRunaway Child.(25.06) M-A
Harassment: (42.07)
DOCKETCALL3
F-4

- CONTINUED FROM PAGE 3
Telephone. (42.07) M-B
Harassing more than onetime. (42.07)
M-A
Harassing more than onetime (priors).
(42.07) F-3
Hindering Apprehension/Prosecution:
(38.05) M-A
Charged/convicted for a felony. (38.05)
F-3
Hindering Secured Creditors: (32.33)
Under$20. (32.33) M-C
$20-$500. (32.33) M-B
$500-$1,500. (32.33) M-A
$1,500-$20,000. (32.33) F-4
$20,000-$100,000. (32.33) F-3
$100,000-$200,000. (32.33) F-2
$200,000or more.(32.33) F-I
Homosexual Conduct (2l.06) M-C
Illegal Divulgence of Public
Communications: (16.05) F-4
Divulgeslbenefit. (16.05) M-A
Cellular phone/pager. (16.05) M-C
Illegal RecruitmentofanAthlete.
(32.441)
Benefit less than $20. (32.441) M-C
Benefit $20-$500. (32.441) M-B
Benefit $500-$1,500. (32.441) M-A
Benefit $1,500-$20,000.(32.441) F-4
Benefit$20,000- $100,000. (32.441) F-3
Benefit $100,000-$200,000. (32.441) F-2
Benefit more than $200,000. 32.441 F-I
Impersonating Public Servant: (37.11)
M-A
Police Officer. (37.11) F-3
Implements for Escape: (38.09) F-3
Deadly weapon. (38.09) F-2
Improper Influence (Public Servant)
(36.04) M-A
Incest (Prohibited Sexual Conduct).
(25.02) F-3
Indecencywith a Child: (21.11)
Sexual contact. (21.11) F-2
Exposes. (21.11) F-3
IndecentExposure. (21.08) M-B
Injury to Child, Elderly, Disabled:
(22.04)
Bodily injury (intentional). (22.04) F-3
Bodily injury (reckless). (22.04) F-4
Criminal negligence. (22.04) F-4
Serious mental impairment. (22.04) F-2
Intercept Communication: (16.02) F-2
Manufacture/sell/possess. (16.02) F-4
Obstructs law enforcement. (16.02) F-4
InterferencewithChildCustody. (25.03)
F-4
InterferencewithPublicDuties. (38.15)
M-B
Interferencewith Railroad Property:
(28.07)
Throws objectorshootsat train. (28.07)
M-B
Throws/shoots and bodily injury. (28.07
(F-3)
Enters railroad property. (28.07) M-C
Tampers with railroad property.(28.07)
M-C
Placeobstruction on tracks. (28.07) M-C
Causesderailment. (28.07) M-C
Tampers/obstruct/derail; loss $20-$500.
(28.07) M-B
Tampers/obstruct/derail; loss $500
$1,500. (28.07) M-A
Tampers/obstruct/derail; loss $1,500-
$20,000 F-4
Tampers/obstruct/derail; loss $20,000-
$100,000 F-3
Tampers/obstruct/deraiI; loss $100,000-
$200,000 F-2
Tampers/obstruct/derail; loss $200,000
or more F-I
IntoxicationAssault. (49.07) F-3
IntoxicationManslaughter. (49.08)
F-2
IssuanceBad Check. (32.41) M-C
Keepinga GamblingPlace.(47.04) M-A
Kidnapping: (20.03) F-3
Aggravated. (20.04) F-I
Release in safe place. (20.04) F-2
LeavingChildin Vehicle. (22.10) M-C
Manslaughter. (19.04) F-2
Intoxicated. (49.08) F-2
MisapplicationFiduciaryProperty.
(32.45)
Property less than $20. (32.45) M-C
Property $20-$500. (32.45) M-B
Property $500-$1,500. (32.45) M-A
Property $1,500-$20,000. (32.45) F-4
Property $20,000- $100,000.(32.45) F-3
Property $100,000-$200,000.(32.45)
F-2
Property more than $200,000. (32.45)
F-I
MisuseofOfficial Information: (39.06)
F-3
Coerces another not to report. (39.06)
M-C
Murder: (19.02) F-I
Sudden passion. (19.02) F-2
NegligentHomicide. (19.05) F-4
Obscenity: (43.23)
Promote/possess/produce. (43.23) M-A
Promote/possess- wholesale. (43.23) F-A
Sale/display to minor.(43.24) M-A
Sale- hires minor. (43.24) F-3
ObstructingHighway/Passageway.
(42.03) M-B
OfficialOppression. (39.03) M-A
PenRegister,TapandTrace. (16.03)
FA
Perjury: (37.02) M-A
Aggravated.(37.03) F-3
Possess ComponentsofExplosives.
(46.09) F-3
Possession- GamblingParaphernalia.
(47.06) M-A
Possession ofAlcohol in Motor Vehicle.
(49.03) M-C
Possession Prohibited Weapon: (46.05)
F-3
Switchblade/armor-piercing ammo.
(46.05) M-A
Prohibited Sexual Conduct (Incest).
(25.02) F-3
ProhibitedSubstances- TDCJ. (38.11)
F-3
Prostitution: (43.02) M-B
Priors. (43.02) M-A
Compelling. (43.05) F-2
Promotion. (43.03) M-A
Promotion - aggravated. (43.04) F-3
PublicIntoxication. (49.02) M-C
PublicLewdness. (21.07) M-A
RecklessDamage/Destruction. (28.04)
M-C
ResistingArrestiSearchffransportation:
(38.03) M-A
Deadly weapon. (38.03) F-3
4 DOCKETCALL
Retaliation/Obstruction. (36.06) F-3
Robbery: (29.02) F-2
Riot: (42.02) M-B
Same classification as an offense commit-
ted during ariot.
SalelPurchase- Child. (25.08) F-3
SalelPurchase- HumanOrgans. (48.02)
M-A
SexualAssault: (22.0II) F-2
Sexual Performancebya Child: (43.25)
Employlinduceone under 18. (43.25) F-2
Produce/directone under 18. (43.25) F-3
SilenUAbusiveCalls- 911. (42.061) M-B
Smoking in Prohibited Places. (48.01)
M-C
Taking Weapon from Peace Officer.
(38.14) F-4
Tampering with Consumer Product
(22.09)
Sale to public. (22.09) F-2
Seriolls bodily injury. (22.09) F- I
Threatens to tamper. (22.09) F-3
Tampering with Government Record:
(37. 10) M-A
Intent to defraudJharm another. (37.10)
F-4
License permit, seal, title, etc. (37.10) F-3
TamperingwithIdentificationNumbers.
(31.11) M-A
TamperingwithWitness. (36.05) F-4
TamperinglFabricating Physical
Evidence. (37.09) F-3
TerroristicThreat: (22.07)
Causes reaction by agency. (22.07) M-B
Fearofserious bodilyinjury. (22.07) M-B
Interrupt public place. (22.07) M-A
Interrupt public service. (22.07) F-3
Theft: (3I.03)
Under$20. (31.03) M-C
Under$20; one prior. (31.03) M-B
$20-$500. (31.03) M-B
$500-$1,500. (31.03) M-A
$1,500-$20,000. (31.03) F-4
less than $1,500; twoor more priors.
(31.03) F-4
$20,000-$100,000. (31.03) F-3
$100,000-$200,000. (31.03) F-2
$200,000ormore. (31.03) F-I
Firearm. (31.03) F-4
Human corpse orgrave. (31.03) F-4
Livestock under$20,000. (31.03) F-4
Person. (31.03) F-4
Public servant(one category higher)
(31.03)Serviceless than $20. (31.04) M-C
Service $20-$500. (31.04) M-B
Service $500-$1,500. (31.04) M-A
Service $1,500-$20,000. (31.04) F-4
Service $20,000-$100,000. (31.04) F-3
Service $100,000-$200,000. (31.04) F-2
Service$200,000ormore. (31.04) F-I
Tradesecrets. (31.05) F-3
UnauthorizedAbsence - Community
Corrections. 38.113 F-4
Unauthorized Use Motor Vehicle.
(31.07) F-4
Unlawful Access to Stored
Communications: (16.04) M-A
Ifbenefit/harm.( 16.04) F-4
UnlawfulCarryingWeapon: (46.02)
M-A
Licensed Premise. (46.02) F-3
Schools/airports/etc. (46.02) F-3
Violation of Protective Order. (25.07)
M-A
Weapons: (46.01)
Carrying. (46.02) M-A
Carrying (licensed premise). (46.02) F-3
Deadly weapon - penal institution.
(46.02) F-3
Designated places (school! airports/etc).
(46.03) F-3
Possess components ofexplosives.
(46.09) F-3
Possess hoax bomb. (46.08) M-A
CHARLES FORD
INTERNATIONAL
INVESTIGATIONS, INC
9301 SOUTHWESTFRWY.
SUITE 605
HOUSTON, TEXAS 77074
7137741575
Possess prohibited weapons. (46.05) F-3
Possess switchblade/armorpiercing
ammo. (46.05) M-A
Sell to minors/drunks/felons. (46.06) M-A
Wiretapping. (16.02) F-4
SEMINAR FOR THE
PRESENTATION IN
ASYLUM &:
DEPORTATION
PROCEEDINGS
YMCA International
Services Houston
Refugee Pro Bono
Project
Saturday,
November 19, 1994
8:45 am- 5:00 pm
ThurgoodMarshall
SchoolofLaw
Texas Southern
University
Formoreinformation,contact:
KimSheltonatthe
YMCA InternationalServices
at(713)995-4005
DOCKETOALL5
TEXAS CAPITAL SENTENCING
STATUTE'S DEFINITION OF
IIMITIGATING EVIDENCE" IS
FACIALLY UNCONSTITUTIONAL
by Allen C. Isbell
()7he Texas capital sentencing
V s t a ~ ~ t e s definition ofmitigating evi-
dence is facially unconstitutional because
it Iimjts the EighthAmendmentconceptof
mitigation to factors that render a capital
defendant less morally blameworthy for
committing a capital murder. V.A.C.C.P,
Article 37.071 Section 2. (e) (t), effective
Sept. I, 1991, provides:
(e) The court shall instruct the jury
that if the jury returns an affirmative
finding to each issue submitted under
Subsection (b) ofthis article, it shall
answerthefollowing issue:
Whether, taking into consideration all
oftheevidence, includingthe circum-
stancesofthe offense, the defendant's
character and background, and the
personal moral culpability of the
defendant, there isasufficientmitigat-
ing circumstance or circumstances to
warrantthat a sentence oflife impris-
onmentratherthanadeathsentencebe
imposed.
(f) The court shall charge thejury
that in answeringthe issuesub-
mitted under Subsection (e) of
this article,thejury:
(1) shall answer the issue "yes" or
"no",
(2) may not answer "no" unless it
agrees unanimously and may
not answer "yes" unless 10 or
morejurorsagree'
(3) need notagreeon whatparticu-
lar evidence supports an affir-
mativefinding on theissue;and
(4) shall consider mitigating evi-
dence to be evidence that a
jurormight regard as reducing
the defendant 's moral blame-
worthiness.(emphasis added)
Subsection (e) uses the phrase, "per-
sonal moral culpability ofthe defendant,"
and subsection (t) uses the phrase, "defen-
dant's moral blameworthiness". These
mean the same because "moral culpabili-
"MITIGATING EVIDENCE
IS NOT SIMPLY THAT
WHICH RELATES TO A
DEFENDANT'S MORAL
CULPABILITY. "
ty" and " moral blameworthiness" are syn-
onymous. See, WEBSTER'S ENCYCLO-
PEDIC UNABRIDGED DICTIONARY
353 (1989). Therefore, the only type of
evidence which the Texas statute autho-
rizes the jurors to regard as mitigating is
evidence which reduces the defendant's
culpability in committing the crime.
There are numerous types ofconstitu-
tionally relevant mitigating evidence that
have no bearing on the issue ofmoral cul-
pabjlity, such as a historyofpositivechar-
acter traits, religious devotion, voluntary
service, kindness, orspecial genius in sci-
ence, mathe matics, or the arts . See
Franklin v. Lynaugh,487 U.S. 164(1988) .
Acapital defendant who is especially gift-
ed in a field, may be no less morally cul-
pable or blameworthy for committing a
horrible capital crime than an ordinary or
below ordinary person. A rational jury
may be less inclined to sentence the espe-
ciall y gifted capital defendant to death,
however,believingthathi sgeniuscouldbe
used positi vely, even in prison. This miti-
gating evidence against the imposition of
the death sentence has nothing to do with
"moral culpability" or " moral blamewor-
thiness".
The United States Supreme Court has
held that constitutionally relevant mitigat-
ing evidence is not simply that which
relates to a defendant ' s moral culpability;
itincludesany and all evidencerelevantto
his character, history or circumstances of
the offense that militate in favor ofa life
sentence. In Skipper v. South Carolina,
476 U.S. 1(1986) the trial courtrefused to
allow testimony regarding the appellant's
good behavior and adjustment during
incarceration pending his trial. TheUnited
States SupremeCourt recognized that any
favorable influence from this type ofevi-
dence "would notrelate to petitioner'scul-
pability for the crime committed", but
would be mitigating in the sense that it
might serve "as a basis for a sentence Jess
6 DOCKETCALL
than death." Because the jury was not
allowed to consider this type of mitigating
evidence, the sentence of death was vacat-
ed pursuant to the holdings in Lockett v.
Ohio, 438 U.S. 2d 586, 604 (1978).
In Lockett v. Ohio, id., the United
States Supreme Court, in a plurality opin-
ion, held that the Ohio death penalty
statute was "constitutionally infirmed"
because it unduly limited the range of mit-
igating circumstance that the sentencer
could consider:
The Eighth and Fourteenth
Amendments require that the sen-
tencer, in all but the rarest kind of
capital case, not be precluded from
considering as a mitigating factor,
any aspect of a defendant's charac-
ter or record and any of the cir-
cumstances of the offense that the
defendant proffers as a basis for a
sentence less than death.
... a statute that prevents the sen-
tencer in all capital cases from giv-
ing independent mitigating weight
to aspects of the defendant's char-
acter and record and to circum-
stances of the offense proffered in
mitigation, creates the risk that the
death penalty will be imposed in
spite of factors which may call for
a less severe penalty. When the
choice is between life and death,
that risk is unacceptable and
incompatible with the commands
of the Eighth and Fourteenth
Amendments. Id., 604, 60S.
In Penry v. Lynaugh, 492 U.S. 302
(1989), the United States Supreme Court
reaffirmed that "a sentencer may not be
precluded from considering, and may not
refuse to consider, any relevant mjtigating
evidence offered by the defendant as the
basis for a sentence less than death." The
Court reasoned that case law "makes clear
that it is not enough simply to allow the
defendant to present mitigating evidence to
the sentencer. The sentencer must also be
able to consider and give effect to that evi-
dence in imposing sentence." The Court
stated that only if the sentencer is able to
consider and give effect to that mitigating
evidence can society be assured "that the
sentencer has treated the defendant as a
uniquely individual human being, and has
made a reliable determination that death is
the appropriate sentence."
The statutory definition of mitigating
evidence narrows the type of evidence to
that which relates to the accused's "culpa-
bility". This precludes the sentencing jury
from assessing, weighing, and considering
as mitigating other evidence which relates
only to whether a "sentence less than
death" is appropriate, simply because that
evidence has no relevance to the defen-
dant's moral blameworthiness or personal
culpability.
"IT IS NOT ENOUGH
SIMPLY TO ALLOW THE
DEFENDANT TO PRESENT
MITIGATING EVIDENCE."
The constitutionality of VA.c.c.P.,
Art. 37.071 rests on the breadth with which
the statute permits a capital jury to consid-
er and give effect to mitigating evidence.
By narrowing the scope to evidence relat-
ing to Appellant's moral culpability [i.e.,
blameworthiness] for the crime committed,
the Legislature violated the principles of
the Eighth and Fourteenth Amendments as
explained in Lockett v. Ohio, Supra; [
Eddings v. Oklahoma, 455 U.S. 104, 102
S.Ct. 869, 71 L.Ed.2d, (1982); Skipper v.
South Carolina; and Woodson v. North
Carolina, 428 U.S. 280, 305, 96. S.Ct.
2978, 49 L.Ed.2d 944 (1976) [Opinion of
Stewart, Powell, and Stevens, JJ].
[Editor'S Note: With this issue I begin a
series of articles on the Constitutionality
of the Death Penalty Statute.]
Hearsay
by Allen C. Isbell
Received notice that Walter Boyd no
longer resides in a house at 4654 Ingersoll,
his new residence appears to be a post
office box!
How about that examination for recertifi-
cation by the Harris County Judges for rep-
resenting indigents! Actually, kind of fun.
Expect some enterprising lawyer to put
''judicially certified in criminal law by
virtue of written examination!" in his let-
ters to new arrestees! Two questions drove
me crazy. Was the reference in question
one to the "42.18, section 3 g" offenses, a
typo, and should have read" 42.12, section
3g" offenses? I presumed so, and
answered accordingly. Also, how did you
construe the option in question 20 about
appealing from administrative license sus-
pensions, which said: "The petition for
appeal must be filed with the State Office
of Administrative Hearings". Of course,
the petition for appeal must be filed with
the clerk in the county where it was sus-
pended, but a certified copy of the petition
sent to the SOAH. How was the question
using the word, "filed"? I wish I could
think like Hal Hudson. He did not think
about it.
Ex-prez Jim Lavine sends this note about
partner ex-prez Jack Zimmermann.
Seems Jack was honored at a formal retire-
ment parade by two Marine Corps Reserve
units he commanded jn the past. People
assumed he was retiring from the practice
of law! Jim and Jack say this is not true,
and that he is returning to full-time practice
of crirrunal defense law. Our friend was
retired royally! He received the
Meritorious Service Medal on behalf of the
President of the United States for outstand-
ing service as a military judge. The cita-
tion stated that "through, his extensive
experience, scholarly approach to resolv-
DOCKET CALL 7

Hearsay
- Continued from page 7
ing complex legal issues, innate common
sense, and considerable hard work,
Colonel Zimmermann produced trials that
were unquestionably thorough and legally
correct." Personally, I thought the movie
"AFew Good Men" was aboutJack,
which characterI shall not say.
Soon, he will be Lt. Col. Terrence
Windham ofthe Airforce Reserve. He is
theprosecutor'sofficeresponseto ourown
Banquet honoring her featured Clint
Eastwood and Meryl Streep, who were
filming "Bridges of Madison County" in
Winterset. Lori founded the art center
there.
Ifyou havenoticedagreatimprovementin
thelasttwoissuesofDocketCall, thecred-
it belongsto Lou Lindenwhohas stepped
in with suggestions and a lot of work!
WalterBoyd has always had suggestions.
H.C.C.L.A. is fortunate to have an out-
standing trial lawyer and scholar at the
helm. JimSkeltoncombines those quali-
ties and is a great example for lawyers to
follow. In the "good news is never old
Col.JackZimmermann. Query: is aLt.
Col. in the Airforce Reserve a higher or
lower rank to a Col. in the Marine
Reserve?
Lori Corrigan, the very nice person who
married John Corrigan, was honored
August 31st in Winterset, Iowa, for her
work as an artist and patron of the arts.
news" department, Haley Margurette
Norton, Margaret C. Lombardo's
daughter, is her mother's joy. Father is
David Norton, of Norton Pictures Inc.
Promised to tell about her severaL issues
ago;justfound the note to myself.
NewMembers
Welcome!
Name Sponsor
C. Don Gutman LloydW. Oliver
Susan F. Cobb LloydW. Oliver
ScottKerman Randy McDonald
TexTonroy Lloyd W. Oliver
Tracie L. Tippen Jane C. Disko
John G. Garza Angel Fraga
MichaelOjo LloydW. Oliver
JamesS. Healey
CynthiaA. Brown
682-5932
Certified paralegal, experience
in family and criminal law.
Extensive training in personal injury.
Excellent people skills.
LAWYERARRESTED
Defense lawyerMaryConn wasarrested onthe First Floorof301
San JacintointheCriminal CourtsBuilding, onApril 26,1993, at
about9:00a.m.
Ifyou saw, heard, orotherwisewitnessed herarrestoranydistur-
bance" beforeorafterthearrest, orifyou have anyinformation
which maybeimportanttothe criminal orcivil; action pending,
pleasecontact:
J. PatrickWiseman
c/oMaryE. Conn
3000SmithStreet
Houston,Texas 77006
Telephone: (713) 520-6333
facsimile: (713) 520-6399
Thankyou.
8DOCKETCALL
PRIMER FOR HANDLING AGRIEVANCE
COMPLAINT FOR THE HONEST &
CONSCIENTIOUS LAWYER
BY JOHN R. GLADNEY
E
ach year the State Bar receives
more than 9,000 grievance com-
plaints against attorneys and
presently handles more than 550 grievance
committee hearings per month. The pur-
pose of this article is to discuss various
aspects of substantive and procedural dis -
ciplinary law that inevitably impacts the
most honest and conscientious lawyer.
Many lawyers believe that because they
are well meaning, decent, honest, and fair
with their clients that they will never be
called upon to respond to a glievance com-
plaint. In today 's complaint oriented envi-
ronment, and in consideration of the nebu -
lous content of some disciplinary rules ,
this bel ief is probably wrong. This article
will discuss the procedure following
receipt of the grievance packet through the
"just cause" hearing.
Since January I, 1990, all Texas
lawyers have been governed by the Texas
Disciplinary Rules of Professional
Conduct. These latest rules add new
requirements on Texas lawyers that the
well intentioned and honest lawyer may
inadvertently violate. In particular, the
general areas of neglect, communications,
and fees will be discussed.
I.Substantive Law
A. Neglect
Rule 101(a) of the Texas Rules of
Di sciplinary Conduct states that a lawyer
shall not neglect a legal matter entrusted to
him . Under the old State Bar Rules, a
lawyer violated the disciplinary rule only if
it could be proven that he "intentionally
neglected" a legal matter entrusted to him.
The burden on the State Bar of proving
"intentional neglect" was to show con-
scious indifference of a serious degree.
The present rule basi cally differentiates
between a single act of neglect and several
different acts of neglect by a lawyer toward
his client.
Rule 101(a) states that a lawyer shall
not neglect a legal matter entrusted to him.
/I ALAWYER SHALL NOT
NEGLECT A LEGAL MAnER
ENTRUSTED TO HIM./1
"Neglect" is defined as conduct which sig-
nifies inattentiveness involving conscious
disregard for the responsibilities owed to a
client or clients. Thus, a single act of
neglect falls under the sa me old rule stan-
dard of intentional negl ect. Further, the
comment to
Rule 101(a) speCifically states that a
lawyer who acts in good faith is not subject
to discipline under these provisions for iso-
lated, inadvertent or unskilled acts or omis-
sions, tactical error or errors of judgment.
The key word here is "isolated," and, an
isolated act of negligence, even a serious
one, is specifically not to be treated as a
violation of disciplinary rules, unless it can
be shown to be an act of conscious disre-
gard by a lawye r for his responsibilities to
a client.
A different standard applies for a
series of acts of neglect or for frequent acts
of neglect, because Rule 1.01 (b)(2) of the
Texas Disciplinary Rules of Professional
Conduct states that a lawyer shall not fre -
quently fail to calTY out the obligations that
a lawyer owes to a client or clients. Here,
it appears that frequent unskilled acts and
omissions, et cetera, even when not a
result of conscious indifference or con-
scious di sregard for a lawyer's obligations,
may result in di scipline to an attorney.
B. Communications
Rule 1.03(a) of the Texas Disciplinary
Rules of Professional Conduct states, "A
lawyer shall keep a client reasonably
informed about the status of a matter and
promptly comply with reasonable requests
for information." The term "reasonable"
and "reasonably" are words of art and
when used in relationship to conduct by a
lawyer, refers to the conduct of a reason-
abl y prudent and competent lawyer. (See
definitions section in preamble of the
Conduct).
The second part of this rule demands
prompt responses to reasonable requests
for information and is one of the most
ambiguous of the disciplinary rules. Under
certain circumstances, it may be so vague
SEPTEMBER/OCTOBER 1994 DOCKETCALL9
Primer for Handling a
Grievance Complaint...
as to be unconstitutionally void for vague-
ness. Before a lawyer can be disciplined
for failing to keep his client reasonably
informed about the status ofactivities, the
lawyer must be shown to have acted in a
fashion below the standard oftheordinari-
ly prudent lawyer. It is not entirely clear
whether the same standard applies to
promptly responding to reasonable
requestsforinformation,sincethe"reason-
able requests" language relates to the
client's request, not the lawyer's conduct.
As a matter of practicality a lawyer
should documentwhenand to whatdegree
he has discussed with his client various
aspects of his case. As noted below, cer-
tain specific aspects of a case must be
talked about with the client. However,
since the rule requires prompt response to
reasonable requests for information, the
lawyer is also advised to keep records of
makingsuchresponses. In addition, ifit is
consistentwith the facts, it is wise to bring
evidence to the grievance committee to
show that the client's requestfor informa-
tion far exceeded his legitimate need to
know the progress ofthe case. Often, this
can be done by calling associates to talk
about how oftencalls were made.
In addition, disciplinary Rule 1.03(b)
requiresthata lawyerexplainthe matterto
the extent reasonably necessary to permit
the client to make an informed decision
regarding the representation. Rule 1.02(a)
of the Texas Disciplinary Rules of
ProfessionalConductstatesthat, subjectto
some limitations,the lawyermustabideby
the client'sdecisions:
a. concerning the objectives and
general methods of the represen-
tation.
b. whether to accept an offerofset-
tlementin a matter.
c. in a criminal case, after consulta-
tion withthe lawyeras toapleato
be entered, whether to waive a
jury trial, and whether the client
will testify
Compliance with this rule is based
upon the "reasonably prudent lawyer"
standard. In a close case, one should sub-
mit the expert opinion ofanother attorney
that the discussion was at least adequate
based upon the "reasonably prudent
lawyer"standard.
C. Fees
The basic rul e under Rule 1.04ofthe
/I A NON-REFUNDABLE
RETAINER FEE IS
PERMISSIBLE IN TEXAS
ONLY UNDER CERTAIN
CONDITIONS. /I
Conduct is that, "A lawyer shall not enter
into an arrangement for, charge, or collect
an illegal fee orunconscionablefee. Afee
is unconscionable if a competent lawyer
could not form a reasonable beliefthat the
fee is reasonable." However, there are
specific rule provisions of which some
practicing attorneys are apparently not
aware, namely the requirements regarding
contingency fee contracts and non-refund-
able retainer agreements in a straight fee
context.
Rule I.04(d)oftheTexasDisciplinary
Rules of Professional Conduct dealing
with contingent fees specifically require
that the following information be given to
a clientin writing:
a. Statethe methodby which the fee
is to be determined.
b. State the specific amount or per-
centage to be charged for settle-
ment, trial and/orappeal.
c. State whether litigation or other
expenses are to be deducted and
whether such other expenses are
to be deducted before orafter the
contingentfee is calculated.
d. Upon conclusion ofa contingent
fee matter, the client must be
givena written statementdescrib-
ingtheoutcomeofthe matter, and
ifthere is a recovery,showingthe
remittance to the client and the
method ofitsdetermination.
A written agreement is not se
required for non-contingent fee agree-
ments, but is suggested. However, except
wherethe lawyerhas regularly represented
the client, the basis or the rate of the fee
shall be communicated to the clientbefore
or within a reasonable time after com-
mencing the representation [Rule 1.04(c)
of the Texas Disciplinary Rules of
Professional Conduct]. Thus, the practice
of telling the client that "I will let you
know what you owe when I finish your
work" is a black letterviolationofdiscipli-
nary law.
Thegreatestareaofmisunderstanding
in thestraightfeecontextis thatofthe non-
refundable retainer and whether there is
any obligation to refund a portion of that
type of fee in the event that the attorney
withdraws prior to the time the work is
completed.
Rule 1.15(d)oftheTexasDisciplinary
RulesofProfessional Conductstates:
Upon termination of representa-
tion, a lawyer shall take steps to
the extent reasonably practicable
to protectaclient'Sinterests,such
as giving reasonable notice to the
client, allowing time for employ-
ment ofother counsel, surrender-
ing papers and property to which
theclientisentitledand refunding
any advance payment offees that
has not been earned.
Ethics Opinion 431 ofthe Texas State
Bar Professional Ethics Committee, pub-
lished November 1986, makes clear that
non-refundable retainer fees are permissi-
ble in Texas only undercertain conditions.
A true non-refundable retainer fee is not
the payment for services; it is rather, an
advance fee to secure a lawyer's services
and remunerate him for loss ofthe oppor-
tunity to acceptotheremployment. To the
degree that it can be shown that a fee is
truly for this purpose as, opposed to an
advance payment for services to be per-
formed, the fee is earned at the time it is
received and should not have to be refund-
ed, unless the attorney voluntarily with-
draws or is discharged for cause before it
can be shown that he lost any opportunity
toobtainotherandadditionalemployment.
To the degree that the fee is truly only an
advance payment for future services, a
refund should be made ifthe attorney vol-
untarily withdraws or is discharged for
10 DOCKETCALL
cause, to the extent of the amount that the
fee has not been earned at the time of the
voluntary withdrawal or discharge for
cause.
It is respectfully submitted by this
writer that the grievance committee will
give consideration to the above ethics
opinion as the standard of review of a
refusal to refund a non-refundable retainer
fee when the lawyer has terminated
employment prior to completion of the
work. Obviously, if the facts support the
allegation, the lawyer should show that his
withdrawal was a result of discharge with-
out cause or constructive discharge without
cause by the client, such as where the
client does not abide by his fee agreement
to make future payments or does not coop-
erate in a significant fashion with the attor-
ney. However, beyond the text of Ethics
Opinion 431, this writer also believes that
the grievance committee will view a
refusal to refund a non-refundable fee
when the work has not been completed
based upon a fairness standard, keeping in
mind that a lawyer always has an obliga-
tion to deal fairly and equitably with his
client.
II. Procedural Law and Considerations
A. Overcoming Initial Response
The above discussion of the substan-
tive law relating to neglect, communica-
tions, and fees probably will convince
most lawyers that it is possible to be chal -
lenged for violation of a disciplinary rule,
even when the lawyer has a pure heart and
the best of intentions. A lawyer will first
know that a grievance has been filed
against him when he receives a certified
mail, return receipt requested mailing from
the General Counsel ' s Office of the State
Bar of Texas which is marked "personal
and confidential." The first and critical
thing a lawyer must do after receiving this
communication is to overcome hi s initial
shock and unwillingness to participate in
the process he may believe has falsely
accused him.
Statistics from the general counsel's
office reflect that a significant number of
lawyers do not respond to grievance com-
plaints at the "just cause hearing", do not
make an election to proceed in district
court or an evidentiary hearing panel, and
thus, by default, end up before an eviden-
tiary hearing panel of the State Bar of
Texas, and even at that phase, do not
respond. Frequently, the consequences for
such attorneys is needlessly harsh.
A lawyer who receives a grievance
complaint must overcome reactions such
as ''1' m not going to play" or the "frozen
with fear" response, and prepare to devote
a significant amount of time to properly
defend himself before a "just cause" panel
of a grievance committee of the State Bar
of Texas . This article is intended to give
some idea of the procedure through the
"just cause" phase. Frequently, an attorney
wi II be well advised to employ an attorney
who regularly handles grievance matters,
and this will be discussed in more detail in
another section.
B. The Grievance Packet
The grievance packet will contain a
"You CAN BE
CHALLENGED EVEN IF
YOU HAVE A PURE HEART
AND THE BEST OF
INTENTIONS."
letter from the General Counsel's Office of
the State Bar of Texas notifying the attor-
ney that there is enclosed a grievance com-
plaint that has been filed against him to
which the attorney must respond within
thirty days. In addition, the accused attor-
ney will receive the actual grievance filed
against him, an appeal form to the Board of
Disciplinary Appeals and the names and
addresses of the grievance committee
members, from which you may make
recusals (discussed below).
1. Grievance Complaint
The grievance complaint itself is fre-
quently filled out by the lawyer's client.
The attorney needs to carefully read this
complaint and then refer to the Texas
Disciplinary Rules of Professional
Conduct to see if he can identify what is a
potential violation of disciplinary law of
which the client is complaining. Every
attorney respondent is entitled to receive
notice sufficient to apprise him of that
which he is charged so he can make an
informed response. If this minimal infor-
mation has not been provided, the attorney
should so state in his response. However,
in making a response, the attorney should
not treat the complaint as if it were pre-
pared technically by another attorney, but
keep in mind that all that a layman must do
is to allege grounds of misconduct which,
if true, would constitute a disciplinary rule
violation and do so with sufficient speci-
ficity to allow the attorney a reasonable
opportunity to make a response.
2. Appeal Form to the Board of
Disciplinary Appeals
The appeal form to the Board of
Disciplinary Appeals is designed to be used
if the lawyer believes that if all the allega-
tions made against him are true (but not
admitted), they would not constitute a viola-
tion of a di sciplinary rule. In this instance,
the attorney should fill out an appeal form to
the Board of Disciplinary Appeals and mail
it to the designated address.
Many lawyers find it strange that they
would file an appeal form to the Board of
Disciplinary Appeals when no decision has
been made by the grievance committee.
The lawyer questions "what am I appealing
from?" The answer is that before the griev-
ance complaint was mailed to the attorney, a
member of the General Counsel's staff
made a decision that if the allegations as
presented by the complainant are true, a vio-
lation of the Texas Disciplinary Rules of
Professional Conduct has occurred. The
staff is sometimes erroneous in making this
decision. For example, the staff may deter-
mine the complaint alleges negligence, even
though all that is alleged is a single isolated
act of attorney negligence. In this circum-
stance, the Respondent simpl y completes
the appeal form and mails it to the Board of
Disciplinary Appeals. While the instruc-
tions state that no correspondence is desired
to be sent with this appeal, this writer sug-
gests that the Respondent send a letter of
less than one page in length to explain why
the attorney believes that the complaint
does not state a basis for discipline, even if
all facts in the complaint are true.
3. List of Grievance Committee
Members
The final information sheet in the
grievance packet lists the names and
DOCKET CALL II
Grievance Complaint..
addresses of all grievance committee
members. This information is given to the
respondent attorney for the purpose of
complying with Rule 2.06 of the Texas
Rules of Disciplinary Procedure.
Providing the Respondent with a list ofall
ofthe grievance committee members and
theiraddresses may not comply with Rule
2.06 of the Texas Rules of Disciplinary
Procedure. Rule 2.06 states: "Each mem-
ber ofa Committee shall act through pan-
elsassigned by the chairoftheCommittee
for investigatory hearings and evidentiary
hearings. Promptly after assignment,
notice mustbe provided to the Respondent
by United States certified mail, return
receipt requested, of the names and
addresses of the panel members assigned
to each grievance."
The issue of whether the General
Counsel's Office must provide a specific
listofpanel membersfor thespecific "just
cause" hearing is being litigated. At pre-
sent,theGeneral Counsel'sposition is that
a global listing of all the grievance com-
mittee members is sufficient and that
recusals, if any, must be made from the
entire list within ten days after receipt of
the list ofthe grievance committee mem-
bers. The recusals are to be made on the
same basis as the recusal of a district
judge.
C. Suggestions for a Response to
Complaint
The attorney should make a complete
and accurate response to the charges
against him. Forexample, ifthe client is
complaining the attorney neglected the
matterand did no work, the attorney needs
to detail his efforts on behalfofthe client.
Most grievance panel members havecare-
fully read the complaint and the attorney's
responsebeforethe hearingandmany have
a good idea how seriously they view the
complaint based upon the written materi-
als. Therefore, care in giving a detailed
and accurate written response cannot be
overlyemphasized.
Because there is a question whethera
lawyer should receive specific notice of
the panel members to be assigned to his
grievance matter, this writer suggests a
lawyer request this specific notice at the
timeherespondsto hiscomplaint. Further,
when he responds to the complaint, if the
attorney wishes to have a record made of
"AT THE HEARING
THE ATIORNEY'S
FUNCTION IS TO BE A
WITNESS FOR HIMSELF."
the proceedings, even though the record
will always be kept in the custody of the
grievance committee, unless the same
should be used in other disciplinary pro-
ceedings, the attorney should make that
request, and offer to pay the reasonable
costfor videotaping and/ortranscription.
D. Preparation for the Hearing
Should You Hire a Lawyer?
Everylawyeraccusedofadisciplinary
violation and facing a"justcause" hearing
before a grievance committeeshould con-
sider whether to hire an attorney. At the
grievance committee hearing, the accused
attorney's primary function will be as a
witness for himself and answer the ques-
tions posed to him by members of the
grievance panel. It is advisable to prepare
for the hearing with a lawyerfamiliar with
disciplinary law. Additionally, there are
occasions when it is particularly important
to have an attorney who the substantive
and procedural disciplinary law present:
a. To attempt to limit the scope of
the committee's inquiry - a
lawyer should not be called upon
to answer charges that were not
made in the complaint. If the
lawyer has any concern that the
committee may seek to expand
upon the specific allegations, the
accused attorney needs a lawyer
to assist him in preventing this
from happening. The accused
attorney is notin a good position,
as a witness, to act as his own
advocate.
b. To discuss areas of substantive
and procedural disciplinary law
- frequently, these will not be
raised by thecommittee. Ifareas
ofdisciplinary law need to be dis-
cussed to show why the attorney
is not guilty of professional mis-
conduct, the accused attorney
should rely upon another attorney
to presentthose arguments.
c. The Respondent should avoid
bragging or touting his profes-
sional accomplishments. A
lawyer before a disciplinary panel
must avoid appearing arrogant.
Yet, his professional abilities may
be a very significantaspectofthe
defense (such as in the case ofa
chargeofan allegation ofa clear-
ly excessivefee). Therespondent
attorney needs a lawyerto do this
on his behalfso he can remain a
dispassionate witness.
d. It is poor form for a respondent
lawyer to be in a position of
impeaching or discrediting his
formerclient. Although the com-
plainant may have lied about the
accused attorney or the com-
plainant's problems his own
shortcomings, including at times,
his basic lack of honesty, it is
preferable for the Respondent's
lawyer than for the Respondent
himself to speak of his former
client'sfaults.
e. Rarely, and regrettably, a commit-
tee membermay unfairly treatthe
respondentattorney ormischarac-
terize his conduct. The accused
attorneyneedsa lawyertoprevent
this abuse in a way that does not
create antipathy against him from
other members of the panel.
Additionally, the recusal of a
panel member should be handled
by the accused attorney's lawyer.
2. Know the Facts of the Complaint
Whether represented by a lawyer or
not, the respondent attorney must be thor-
oughly familiar with the subject matterof
the complaint, have all relevant names,
dates andfacts in mind, and be prepared to
discuss his defense.
3. What Will the Committee Look For
The committee is charged with deter-
mining whether any specific rule of the
12 DOCKETCALL
Conducthasbeenviolated. Inaddition, the
committee is always concerned with
whether the lawyer demonstrates that he
has been concerned abouthis client's wel-
fare and is concerned about the legal pro-
fession atlarge.
E. TheHearing
1. Whoison thePanel
Usually, there are three to six mem-
bers on the"justcause"panel ,one-thirdof
whom are laymen and two-thirdsofwhom
are attorneys. All grievance committee
members have been recommended to the
Board of Directors of the State Bar of
Texas by the President ofthe Board upon
the recommendation of the local director
oftheState BarofTexas.
Sometimes, it suggested that griev-
ance panels are stacked with "big firm"
lawyers. This is trueonlyto theextentthat
there are more big firm directors of the
State Bar of Texas (especially from big
cities) and these individuals naturally
appointpeoplewhothey knowand respect
to grievance panels.
2. Procedure
Committee meetings begin with the
chairman ofthe panel makingadmonitions
to both the complainant and the
Respondent. The complainant is advised
that the purpose ofthe hearing is to deter-
mine whether professional misconduct has
occurred, not to handle the complainant's
legal matters or obtain compensation for
the complainant's losses. The respondent
attorney is advised thathe has arightto an
attorney and is given a Miranda warning,
applicable ifthe charges against the attor-
ney also involve potential violations of
criminal Jaw. The complainant and
Respondent are advised that the proceed-
ings are confidential ,exceptin thecircum-
stance that the accused attorney agrees to
some type ofpublic discipline. Thecom-
plainant and Respondent are advised that
the panel members have read the com-
plaintand the response and thatthe parties
should limit their comments to additional
information or to answer the questions of
thecommittee. Usually, thecomplainantis
asked first ifheorshehasadditional infor-
mation and then questioned by the panel
members. Following this, the accused
attorney is asked ifhe orshehas addition-
al information,followed by questions.
Cross examination by either party is
notallowed. However,at the panelchair's
discretion, either the complainant or the
accused attorney may present questions to
the panel chair to ask of the other party.
Closingarguments may be allowed.
3. Problemswith theHearing
Usually, the Respondent has no clear
cut opportunity to present his case. The
admonition that only new information is
sometimes used to cut short information
theattorney believes important. However,
with respectful persistence, one should be
able to adequately describe his other
efforts on behalf of the client, or other-
wise detail why he orshe has no commit-
ted professional misconduct.
"THE LAWYER HAS ONLY
ONE OPPORTUNITY TO
PRESENT HIS SIDE AT THE
GRIEVANCE HEARING."
The majority ofgrievance committee
members are courteous and give both par-
ties an opportunity to present a fair case.
However, in somecircumstances, commit-
tee membersarebrusqueorappearto have
predetermined the result. On some occa-
sions,committeemembersdo notconsider
substantive disciplinary Jaw, but act more
like aCourtofChanceryin trying todeter-
minewhat is fair or right. Thelawyer has
only oneopportunity to present hi s side of
the matter at the grievance hearing. He
needs to makecertain he has covered rele-
vant defenses to the pertinent substantive
disciplinary law.
The manner in which a lawyer pre-
sents himself at a committee hearing is
critical. Thelawyer must give thoughtful,
dispassionate answers to questions posed.
He mustbeprepared to respond to thesub-
jectmatterofthe complaint. If the lawyer
projectsconcernabouthisotherclientsand
the profession, he or she has gone a long
way toward a successful conclusion ofthe
grievance process. Conversely,arrogance,
ill temper, and lackofpreparationvirtually
guarantee a bad result.
F. Decision by the Committee
1. FindingofNoMisconduct- Decision
Unanimous
Success - the grievance complaintis
over.
2. FindingofNo Misconduct-
Decision Not Unanimous
The complainant will be advised that
hemayask fora new hearing panelto hear
the same grievance. The procedural rules
do notstateatimeframein whichthecom-
plainanthas to make this request.
3. FindingofMisconduct- Rangeof
Proposed Discipline
The "just cause" hearing panel may
only make recommendations for disci-
pline. It may not impose discipline, with-
outthe accused attorney's agreement. The
proposed discipline may be a private repri-
mand (and is available only ifaccepted at
the "just cause" hearing level), a public
reprimand, a suspension from the practice
oflaw which is fully imposed oris fully or
partially probated, and a recommendation
ofresignation in lieu ofdisbarment.
G. TwentyDaystoAcceptorRejector
Negotiate
A"JustCause"Determination
Arespondentattorney hasonly twenty
days from receipt of the certified mail to
accept or reject the decision of the "just
cause" grievance panel ' s proposal or to
propose a counteroffer. For a grievance
committeeactionto beeffective, thegriev-
ancecommitteeproposal (whetheroriginal
orrevised due to the committee accepting
a counteroffer) must be fully accepted and
signed by the respondent attorney within
the twenty-day period. This is one ofthe
most difficult time periods in the rules. If
a counteroffer is proposed, the committee
mustbepolled within the twenty-day peri-
od. The findings of fact, conclusions of
law, and the judgment must be redrafted
and all documents notarized within this
same twenty-day period. If this is not
accomplished, the respondent attorney is
deemed to have rejected the proposed set-
tlement offer. At the time ofthe rejection
of the offer or after the lapse of twenty
days from the date ofthe initial offer, the
grievance committee loses jurisdiction.
Futuredecisions regarding whethertoper-
mit a settlement, and, if so, for what
SEPTEMBER/OCTOBER 1994 DOCKETCALL 13
Grievance Complaint
-- CONTINUED FROM PAGE 13
degree of discipline, are made by the
Commission on Lawyer Discipline and not
the grievance committee.
If the accused attorney and the griev-
ance committee agree upon a sanction
within the twenty-day period, the judgment
has the same effect as if rendered by a dis-
trict court.
H. Limitationson Use ofPrivate
Reprimands, Public Reprimands,and
Probated Suspensions
1. Limitationson Private Reprimands
Under a rule imposed by the
Commission on Lawyer Discipline and in
accord with Section81.072(ll) of the
Texas Government Code, an attorney may
receive only one private reprimand for the
violation of the same disciplinary rule
within a five year period. An attorney may
receive no more than two private repri-
mands for the violation of any disci plinary
rule during a ten year period. A private
reprimand is not to be imposed under the
following conditions:
a. The misconduct includes theft,
mi sapplication of fiduciary property, or the
failure to return, after demand, a clearly
unearned fee; or
b. The misconduct caused substan-
tial injury to the client, the public, the legal
system or the profession; or
c. There is likelihood of future mis-
conduct by Respondent; or
d. The Respondent intentionally
violated the Texas Disciplinary Rules of
Professional Conduct or, if applicable, the
Texas Code of Professional Conduct.
2. LimitationsofPublic Reprimands
When the Supreme Court makes
effective the recently passed disciplinary
rules referendum (possibly as early as
October I, 1994), a lawyer may recei ve
only one public reprimand in a five year
period for a violation of the same discipli-
nary rule. He may receive only two public
reprimands during the same five year peri-
od, whether or not for violating the same
disciplinary rule.
3. Limitation on Fully Probated
Suspensions
When the Supreme Court makes
effective the recently passed disciplinary
rules referendum, a lawyer may not receive
a fully probated suspension, if he has with-
in the past five years received a public rep-
rimand or a fully probated suspension for
violation of the same disciplinary rule or if
he has previously received two or more
fully probated suspensions whether or not
for violating the same disciplinary rule.
An attorney may not receive a fully pro-
bated suspension, if he has previously
received two or more sanctions of public
reprimand or greater for conflict of inter-
est, theft, misapplication of fiduciary prop-
"A LAWYER MAY
RECEIVE ONLY TWO
PUBLIC REPRIMANDS
DURING THE SAME FIVE
YEAR PERIOD."
erty, or failure to return, after demand, a
clearly unearned fee.
4. Electionfor FurtherProceedings
The election to go to district court or
to an evidentiary hearing panel of the
grievance committee must be made within
fifteen days after the Respondent receives
a notice of election from the General
Counsel's Office. There may be some rea-
sons for electing to proceed before an evi-
dentiary hearing panel (this should be care-
fully discussed with an attorney familiar
with disciplinary procedure). As a general
mle, this writer believes most accused
attorneys will be better served by electing
to go before a district court.
Conclusion
This article is limited to discussing
procedure through the first phase of the
grievance process which is the "just cause"
grievance panel hearing phase. Should a
lawyer be involved in the latter phases of
disciplinary action, he requires competent
legal representation. As earlier suggested,
such representation is often needed during
the "just cause" phase.
Hopefully, this article has de-mysti-
fied some specific aspects of substantive
disciplinary law and procedural steps
through the "just cause" hearing. While
some pitfalls and traps for the unwary have
been discussed, others remain.
About theAuthor
John R. Gladney is currently a partner
with the Law Firm of Kreisner & Gladney
and primarily litigates matters concerning
attorney professional responsibility. He
regularly defends attorneys in disciplinary
proceedings, serves as an expert witness in
matters of professional responsibility and
has spoken at seminars concerning attor-
ney conduct. From 1989 to 1991, Gladney
served as Deputy General Counsel and
Chief of Litigation for the State Bar of
Texas, serving as the State Bar s chief trial
attorney and supervising a staff of approx-
imately ten lawyers. From 1983 through
1989, Gladney served as Assistant General
Counsel for the State Bar of Texas prose-
cuting disciplinary actions throughout the
State. Gladney is licensed to practice in
the State of Texas and before the Northern
District and Western District courts of
Texas. He received his Juris Doctor from
Baylor Law School in 1974 and graduated
from the University of Texas at Austin in
1971 with a Bachelor of Arts with Honors
in 1971.
Paula S. Williams
864-7302

Certified paralegal--
extensive training
personal injury and
family law for a
reputable attorney.
Available immediately.
14 DOCKETCALL SEPTEMBER/OCTOBER 1994
'1') I I ~ IJIJ
I I I I ~
Louis F. Linden
A television of almost solid-state vin-
tage perched on a tri angular piece of ply-
wood wedged high in the corner and glow-
ered down on the room. It was a major
source of the light in the room aided onl y
by two reluctant fluorescent tubes and the
Jight that occasionally made it through the
swinging double kitchen doors. It wasn't
dark but it wasn' t light. That was fine by
me. I was hiding out. No one would look
for me here at Your Mom' n Them's Fried
Chicken. It's a monument to Houston' s
aversion to zoning. It's a monument to the
three Texas food groups. Tex-Mex,
Barbecue and Grease. It's a monument to
interior designer Sears A. Roebuck, c.
1957. It's a monument. No one looks for
an addict in a monument.
Addictions have an up side and a
down side, often literally. I'm addicted to
democracy. That's the up side. The down
side is that I am therefore addicted to poli-
tics. Painful but true. Democracy is not a
spectator sport. It's my Jones. It ' s a crav-
ing that defies my resolutions never to do
this again. God knows I've tried but it has-
n't altered hi s behavior any. Or mine. The
last binge I was hung over for three
months. I tlied twelve steps to apathy pro-
grams like Politics Anonymous. It didn't
take. I went to meetings of the campaign
worker ' s support group. It didn't help, not
really. I stayed away from the primaries. I
knew that temptation was not my friend.
But deep in my heart I also knew that I
would falter sooner or later. It was sooner.
A person I knew to be an unrepentant
junkie said, "Here, just work at this fund
raiser. Just one li'l 01' fund raiser won ' t
hurt." I knew he was lying even as I start-
ed serving up the barbecue. Even as I
denied it to myself, I knew I was off on
another binge. My practice, my marriage
to the most understanding and long suffer-
ing spouse a junkie could have, my resolu-
tion to quit smoking and aID fifteen miles
a week, all began to fade away in a kalei-
doscope of yard signs, pushcards, and
campaign events. Everything focused on
just keeping all the balls in the air until that
Tuesday in November. If I can just avoid
a grievance, and losing too many clients
and having my duodenal ulcer consume
my lower G.I . tract and have my candidate
win, I prorrtise I'll never do it again.
So there I was at Your Mom'n Thems
where no one can call me and ask when the
pushcards will be ready or when will I
have the big sign put lip at somebody's
cousin's ice house . There were other
junkies there but all careful not to
acknowledge the others. It ' s a safe zone.
Neutral turf. There's a box by the door
with a sign, "check all cell phones and
pagers here." I was watching Dan Rather
doing the pre-game warm-up show for the
Haitian invasion and scarfing some of
YM.'n T.'s burned bird. The initial crunch
through the fried batter then the exquisite,
salubrious drooling of the grease down the
back of my hand toward my wrist. In my
reverie I failed to notice the program had
changed to a piece about jury consultants
until I caught a glimpse file footage of Cat
Bennett sitting next to William Kennedy
Smith. The piece revolved around a new
book written by the "Legal Editor" (as
opposed to the "Illegal Editor" I guess) of
the Wall Street Journal. The theme was
that defense lawyers are rigging trials by
using focus groups and mock trials and
other social science techniques. They did-
n' t imply it, those were the words they
used. A California defense lawyer tried to
explain to the reporter about the adversary
system but she wasn't having any. "Aren't
you keeping perfectly good people from
serving on the jury?" (At least she under-
stood about the effectiveness of leading
questions.) Her moral indignation that
people who would vote to convict were
being targeted for exclusion by the defense
was palpable. Is it any wonder the
American people hate us? Any tactic
which raises the chances of a not guilty
verdict is somehow immoral. Justice is
that which convicts. Fair juries are those
who will vote guilty
After they interviewed the geek who
had written the book (which I haven' t read
and mayor may not concur with what I
saw on the tube) the piece ended. I got
another Lone Star long neck from the
Pepsi cooler by the kitchen doors and
resumed muttering over the comestible
wreckage on my plate. It looked like the
aftermath of a three chicken head-on colli-
sion. The television had ruined my
appetite. It's so hard to enjoy your dinner
when you are foaming at the mouth and
jumping up and down.
When I worked for N.A.C.D.L. I often
found myself in the same position as the
California lawyer, trying to rationally
DOCKET CALL 15
explain the workings of the criminal jus-
tice system and the defense function in par-
ticular. Sooner or later the interview
would always get to ' 'The Question."
"How can you represent someone you
know is guilty?" Having answered "The
Question" hundreds of times it was not dif-
ficult to respond. But in my mind I was
always amazed. They just don't get it.
How can it be? They have high school
civics classes even in this age of dumbed
down education. They must understand
the structure, they grew up watching Perry
Mason and nearly a dozen other lawyer
shows. Lawyer movies are the genre of the
day. Scott Trurow and John Grisham
lawyer novels sold literally millions of
copies in the last ten years alone. But they
just don't get it.
I think one of the problems is politics,
the evil twin brother of democracy.
Moreover, I think that judicial politics is
one of the worst offenders. I'll be the first
to admjt that this premise is vulnerable to
chicken and egg analysis. But it is impos-
sible to ignore that virtually all elected
judges' campaign platforms consist exclu-
sively of being "tough on crime." Even
candidates running for courts with no
criminal jurisdiction jump on the band
wagon! The conventional wisdom is that
candidates who promise to be fair to the
prosecution and defense alike remain just
that, candidates. I don' t pretend to know
whether this is a cause or an effect. I don't
know that it matters anymore. What does
matter is that it is a perversion of any sys-
tem that calls itself justice. It violates the
philosophical foundation of our judicial
process. It is an index to how far our soci-
ety is willing to live from our ideals. We
can't afford to be fair anymore, we've got
to be tough, tougher than our opponent.
Crime has replaced corrununism as the
boogeyman of choice.
To be fair one must admit that legisla-
tors and executive candidates are at least as
cynically exploitive of the people's fear,
e.g., congress creates more than fifty new
death penalty offenses. Even Texas which
leads the western world in judicial execu-
tions can only come up with one offense
warranting the death penalty. What pur-
pose do the fifty new capital offenses
serve? Quite simply they serve to get
politicians re-elected . So it has ever been,
at least within my lifetime. Cynics believe
that the electorate is not interested in fair-
ness or, for that matter, in freedom. They
are interested in security. I'm afraid the
cynics are right. Voters are interested in
what a candidate will promise to do for
them, not the good of the society. The dark
side of individual liberty is egocentrism.
What are you gonna do for me?
Judge candidates are hampered in
responding to the self-interest of the voter.
They can't make laws. They can't build
roads or promise to pick up the garbage
more often. In Harris County there are so
many of them, more than a hundred in the
coming election, no one can sort them out
save by party affiliation, a dubious criteria
at best. Ifwe accept the apparent as true,
the voters don't understand the process and
"HAITI HAS MORE
INFLUENCE ON JUDICIAL
ELECTIONS THAN ALL
THE CAMPAIGNING BY
ALL THE CANDIDATES."
are therefore irrevocably handicapped in
evaluating candidates. It is a scenario ripe
for exploitation by any opportunist with a
law license and a willingness to pander to
an often irrational, media inflated fear of
crime. There is no shortage of people of
that description. In most Texas counties
it's not a problem. There are a handful of
judge candidates and everyone in the coun-
ty knows them or their family or their rep-
utation. But Harris County is the third
largest electoral county in the U.S. with
more voters than twenty-six states. Almost
none of those voters know what the various
courts do, who the candidates are or why
they would or would not make good
judges . Hell, I don't even know most of
those folks , at least those running for civil
benches. Whether Haiti gets invaded has
more influence on judicial elections in
Harris County than does all the campaign-
ing done by all the candidates.
If this is so, I wonder why we all do
this. I understand the candidates' motiva-
tions. Some are good and some are not so
.HCADA
MISSION STATEMENT
"To reduce the incidence and
prevalence of alcoholism and other
drug addictions and their related
problems in the City of Houston
and Harris County."
520-5502
Ext. 39
The flouslOn Council on Alcoholism and Drug Abuse ( HCADA)
is an affiliate of Ihe NOIional Council all Alcoholism ami Drug
Dependence, and receives funding from United Way. 'he Texas
Commission on Alcolzol alld Dug Abuse as well as privare om-
friburions, special events and program fees. No Oll e ;s denit:d
service due /0 their financial silLiGtion.
good. Some rise directly from that reptil-
ian stem of the brain that no one wants to
admit to. But what about us? What about
the schlumphs who lug the signs and push
the cards and make the lists and check
them twice? I can't really imagine that
anyone would go through all of this just to
get appointed criminal cases. That's termi-
nal masochism. Beat me, whip me, make
me write hot checks. If there were that
many junkies Your Mom'n Them's could
franchise, open new locations all over
town. I mean, for fun it's right up there
with rolling around in a sandburr patch.
Maybe that's the answer. I just feels so
good when you stop. More likely it's delu-
sional, like Your Mom' n Them's Low Fat
Special Dinner. Beyond all rationality we
delude ourselves into thinking that we real-
ly are working for a better judiciary. What
an age we live in boys and girls, what an
age we live in?
mThomas M. Tompkins
U1UI 2 : : : : : ~ 4 8 1 I
Seeking Employment
803-B Government Street
Mobile, Alabama 36602
16 DOCKET CALL
COURTROOMS ON THE RANGE
THE TRIAL LAWYERS COLLEGE
BY JOHN E. ACKERMAN,
AN OLD WARRIOR
1(, 5:30 A.M. TIred lace, are arriving
at the dining hall on Thunderhead
Ranch - each wondering why they were
told to get up in the dark and come to
breakfast. Oatmeal, Granola, Orange Juice
and toast are the morning fare. The Old
Warrior enters the room, gets everyone's
attention, and announces the reason for the
early breakfast. "Upon finishing breakfast
each of you is to walk out into the moun-
tains alone, find a comfortable place, a
rock, a tree, a flat piece of ground, and stay
there until lunch time. Come back for
lunch. There will be no talking during
lunch. We will meet in the big barn at
I :30. Any questions?" There were none.
They were used to surprises from the Old
Warrior. A heavy silence hung over the
group at lunch time. They spoke only with
their eyes, but from deep inside them-
selves. The meeting in the big barn at 1:30
confirmed what each one knew. It had
been a morning of self introspection - a
morning in which they learned something
important about themselves; who they
were, and why. As they began to share the
morning's experience, some laughed and
some cried and they came closer together.
As they learned about themselves, they
gained insight into others.
That night, around the camp fire, they
sang and told stories. Mostly the music
came from their hearts and spoke of their
lives. The stories were of their feelings;
their pain, their anger, their joy at impor-
tant and intimate moments of their lives.
The Young Warriors learned that they are
more like each other than they are different
and that there was something in each of
them worth caring about.
As their days at the ranch progressed,
this day would keep returning to their
minds. It changed the way they did their
daily chores. Somehow they were more
relaxed; more at peace within themselves
and with each other.
The next morning they went off in
groups of eight to the small barn or the
"A DONKEY OUTSIDE
THE WINDOW OFFERED
OCCASIONAL
COMMENTS. "
milk house and worked on Opening
Statements, or Cross-Examination. They
were accompanied by an Old Warrior, one
of America's top trial lawyers. They were
learning from the best. They were becom-
ing trial lawyers.
The place was Thunderhead Ranch,
near Dubois. Wyoming. The event was the
culmination of a IS-year dream of Gerry
Spence, The Old Warrior, to create a col-
lege where young lawyers, who cared
about people and were committed to help-
ing people could come and learn. Spence
converted his ranch into a college. The big
barn became a donnitory and a courtroom.
The small barn became four courtrooms.
Even the old milk house was called into
service. A donkey outside the window
offered occasional comments. The roost-
ers, crowing, seemed to have no concept of
time.
Last Winter, as the snow lay deep
across the valley of the Little Wind River,
full-page ads appeared in The Champion
and in Trial Magazine. For $2,900.
lawyers were invited to come to Wyoming
for the entire month of August and learn
from the best. The application was to be a
letter explaining what the applicants had
done and wanted to do with their lives.
From the 435 letters received, Spence and
the other members of the Board of
Directors selected 50 lawyers. Those who
couldn' t afford the tuition received schol-
arships. They came from all across the
United States. From Washington, Oregon
and California to New York, New
Hampshire and Florida. they were a mixed
group. Some had tried cases for twenty
years, some had never tried a case.
They arrived on July 31, seventy-five
miles from the nearest airport and after rid-
ing down ten miles of some of the bumpi-
est gravel road in Wyoming. They found
accommodations that were Spartan. yet
adequate. The nearest town was 20 miles
and 45 minutes away. There was no tele-
vision and no newspapers. Even radios
found very few waves to grab.
They arrived strangers to each other
and departed the closest of friends.
Mostly their days were spent working
DOCKET CALL 17
I
in their sections. They were helped by the
likes of Gerry Spence, some say the best
trial lawyer of the 20th century; Rikki
Klieman of Boston, lawyer for Katherine
Ann Powers; Richard Haynes and Joe
Jamail of Houston; Howard Weitzman of
Los Angeles, lawyer for Michael Jackson,
John DeLorean and OJ. Simpson; Morris
Dees, of Montgomery, Alabama; Albert
Krieger of Miami, Florida, lawyer for John
Gotti; Judge Robert R. Rose, formerly of
the Wyoming Supreme Court, and many
others.
During the final four days they did
one-day trials. Many tried the O.J.
Simpson case. As I watched them try their
cases, I was astounded by how accom-
plished they had become as trial lawyers.
Even those who had never tried a case
before were better than most of the lawyers
I watched try cases from the bench here in
Harris County. Although the magic of the
Trial Lawyers College is hard to define, it
is surely magic. I was there. I saw it with
my own eyes.
On September I st, fifty tired Young
Warriors packed their bags, said their final
good-byes and headed home; some with
anticipation, some reluctantly. They were
not the same people who arrived there on
July 31st. They had been changed. They
viewed the world differently. They viewed
themselves differently. Each and every
one was glad they had come. They felt
privileged by having been there. They just
didn ' t know how the folks back home were
going to take them.
Karen Cauthen is a Young Warrior
from Port Arthur. She has never tried a
case. She says: "When I started law
school back in the fall of 1990, I dreamed
of becoming a good trial lawyer. Since
attending the Trial Lawyers College, I am
now determined that I will not be just a
good trial lawyer but rather a great trial
lawyer. lowe my clients no less since I
have been taught by the very best! "
John Bull from Pearsall, Texas is a trial
lawyer of some significant experience.
John says he applied "with the intent of
becoming a better trial lawyer, but received
so much more. I think the best part of all
of this was that I learned a lot about myself
as a human being. I told Garvin [Garvin
Isaacs from Oklahoma City] that had
known that we would be dancing with
Indians and painting when I applied I'm
not sure I would have come. What a mis-
take that would have been."
So, you want to be a trial lawyer?
Well, if you don't represent corporations or
insurance companies or governments, but
you do represent people, send in your
application now, 1 then mosey on up to
Dubois next August. Find yourself in the
Rockies. "Let the wind do its thing with
your mind."2 Become a Trial
I Send a leller. Explain what you ' ve done
in your life and what your dreams are. To:
Trial Lawyers College, P.O. Box 548.
Jackson, WY 83001.
' . From Waddie Mitchell. Buckaroo Poet.
VOTE
209th District Court Judge
Pd. Pol. Adv. by L.W. Oliver, P.O. Box 271503, Houston, TX 77277
18 DOCKET CALL
Encourage Clients and Friends to Vote
The following contested races are very importantto our members. Circle your choices, and send acopy to your clients and friends.
APPELLATE RACES
Steve Mansfield
CourtofCriminalAppeals, Place2
Sharon Keller
c::settyMarshall
AssociaeJustice,
1stCourtofru;,peals,Place3
QiicholM O' Connor
Mamie Proctor
AssociateJustice,
14th CourtofAppeals, Place 1
Hudson
c:b Moore::;
Associate
14th CourtofApl'eals,Place2
Wanda McKeeFowler
C RosJ SearC:::=-
,
AssociaeJustice.
14th CourtofAppeals Place4
MauriceAmidei
c;&e" L. DraugfuC>
AssociateJustice.
14th CourtofAppeals. Place5
John S.Anderson

AssociateJustice,
14th CourtofAppeal s.Place 6
co: PatnceBarron :J
LeslieAnn Brock
ATTORNEYGENERAL

Don Wittig
HARRIS COUNTYRACES
180th DiSLri ctCourt, Criminal
DebbieMantooth
e san Spru(j:)
182nd DistrictCOUlt, Criminal
184th DistrictCourt,Criminal
c:B:Qb Burdetto
Jan Kroeker
185th Dis rictCourt, Criminal
H. LonHarper
CCarlWalker. D
208th District Court.Clj minal
C2niseColliii:'
andyM81tin
209th DistrietCourt, Criminal
Michael McSpadden
c?L!oyd W. Oliver::J
232nd D' t Criminal
Carlos (e.e.) Correa
Mary Lou Keel
314th DistrictCourt,Juvenile
Mary
c:n;;idO.r ga )
315th Di strictCourt, Juvenile
KentEliis
C Berta A. Mejia:::::;'
___HARRISCOUNTYCOURTS
AT LAW
Criminal CourtatLaw #2
50urtat Law #9
ed G. AI) LeD
Analia Wilkerson
iminal CourtatLaw #12
Robin Brown
<:::::Ioe T. TerracinaJ
CountyCti%;a! #14
a= Barkle
NormaJean Mancha
oJ ____ADMINISTRA'I'IVE RACES
263rd DistrictCourt. Criminal
CRuben
Jim Wallace
313thDistrictCourt,Juvenile COUNTYCOMMISSIONER, PCT. 4
C RamonaJohU
PatShelton
DOCKETCALL 19
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LOW PRICES RELIABLE
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Office: 713/890-0108 11731 Jones Road
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c:

1994 SeptOct Docket Call

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