Summary Judgment Attorney's Fee Awards Must Be Supported by Some Facts in East Texas

The Ninth Court of Appeals in Beaumont, Texas through a panel of Justices David Gaultney, Charles Kreger, and Hollis Horton held in a memorandum opinion that the evidence of attorney's fees in a collections case was insufficient to support a grant of summary judgment as to those fees. The attorney's fee affidavit in that case failed to state any hourly rate, or amount of time spent working on the case or any other specific facts behind the fee.Summary Judgments in Texas: Practice, Procedure, and Review

Should You Ask for Oral Argument?

Generally, one should ask for oral argument if the appellate relief one is asking for is out-of-the-ordinary, that is, if it requires the court to take action it would rarely take. For example, appellants asking the appellate court to overrule a trial judgment should generally ask for oral argument. Why? Because appellate courts rarely overrule trial judgments, and appellant's counsel should try to get the case away from being solely considered by staff attorneys and law clerks and bring the case to an appellate justice's attention. A justice is much more likely to lead the court to do something unusual than a lowly court employee. In this example, appellees should generally try to avoid oral argument. To show how far some appellees take this avoidance, for a long time, appellate prosecutors in Houston would not show up for oral argument where the State was an appellee.
A football coach, famous for letting his quarterback run rather than pass observed that when a player passed the ball, there were three possible results (incompletion, interception, completion), and two of them were bad (incompletion and interception). Appellees' counsel feel the same way; oral argument may lose a case for them, but it is unlikely to win one for them.
Similarly, counsel asking for extraordinary relief such as mandamus or habeas corpus relief should ask for oral argument to explain why their particular case is the one for which unusual action should be taken.

Minnesota and Texas Have "Roach Motel" Sexually Violent Predator Programs

In 1981, the Black Flag Roach Motel was introduced. "Roaches check in, but they don't check out."
The Duluth News Tribune reports that of all the states that have civil commitment of sexually violent predators, Minnesota is the only one that has never released anyone from civil commitment. This is not quite true; Texas has never released anybody either. The story seems to envision committed sexually violent predators "mov[ing] . . . through the community." Except to go to doctor's and dentist's appointments, it's extremely difficult for them to do anything but hang out at the halfway house. The story says that Washington state's program- generally, the model program- was held to be unconstitutional ten years ago. What was needed to make it constitutional was real treatment structured so that SVPs could earn their freedom. Texas doesn't meet that standard.

Rule Changes re Reconsideration of Petition for Discretionary Review in the Court of Criminal Appeals

They are here.

A Court Can Make a Prosecutor Turn over a Complainant's Video

Texas state judges have the power to require prosecutors to copy a sex assault complainant's video for the defense. Court of Criminal Appeals Judge Paul Womack wrote for a unanimous court save for the dissent of Presiding Judge Sharon Keller (When this opinion was handed down, the Court only had eight of its usual complement of nine judges.  Retiring judge and former Deer Park corporation counsel Charles Holcombe was replaced late as an economy measure.) The majority held that the recording was non-privileged evidence to which the defense had a right. Presiding Judge Keller would have held that the recording was a "written" witness statement-- by statute, the State could have refused to release it.

What Advice Should be Given Based on the Salinas Case?

What  advice should be given based on the Salinas case? If you're not going to answer every question of the cops's, don't answer any.

Local Rules and Their Friends- What Lawyers Need to Remember

If you're doing an appeal (or any other litigation), you should always check the local rules, and, if, a court has them, don't miss their internal operating procedures if it lists them, as the Fifth Circuit does, or lists of local practices, or tips and guidelines, etc. Texas's First Court of Appeals has civil and criminal Local Rules, as does the Third. Other Texas state appellate courts with local rules are the Second, Fourth, Fifth, Eighth, Tenth, Eleventh (sort of) and Fourteenth (also sort of).