Recognition in the Time of COVID: Judge Daryl Moore receives Law Library Advocate Award

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Congratulations to Judge Daryl Moore, Texas 333rd District Court, who is this year’s recipient of the American Association of Law Libraries Government Law Libraries section Law Library Advocate Award! Judge Moore was recognized for his work in support of expanding law library services to all in Harris County, Texas. His tireless work as co-chair of the HBA County Law Library Committee helped the Law Library expand services for self-represented litigants, create new educational opportunities for the local legal community, and increase funding for library programs offered to everyone in Harris County.

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Presenting an Award During a Pandemic

In a regular year, Judge Moore would have received his well-deserved award at the annual meeting of the American Association of Law Libraries to a room filled with law librarians from across the country. 2020 is not a regular year. As such, our director presented the award to Judge Moore on Friday at the Law Library to an audience of a socially-distanced photographer.

"Court" News

Photo credit: Pixabay

The Houston Rockets have joined the list of sports franchises to file lawsuits against their insurance carriers for losses related to COVID-19. In June, a group of 15 minor league baseball teams filed a lawsuit in the United States District Court in Philadelphia, Pennsylvania, alleging catastrophic financial loss due to governmental action and inaction and seeking coverage of its claims for business interruption. Just last week, the Houston Rockets organization followed suit. After a denial of a claim under its $400M insurance policy, Clutch City Sports & Entertainment , L.P. (d/b/a Toyota Center) and Rocket Ball, Ltd. (Houston Rockets) sued their insurance carrier Affiliated FM Insurance Company in Providence/Bristol County Superior Court. The complaint alleges, among other things, that the existence and presence of COVID-19 has triggered the “all-risks” coverage under its insurance policy, has caused physical loss and damage to the property, has led to impairment and loss of functionality, and has caused plaintiffs to experience covered business interruption. In addition to the all risks coverage, plaintiffs also assert that coverage was triggered under multiple “Additional Coverages” and “Coverage Extensions” due to property damage and business interruption. Plaintiffs cited the nature of COVID-19 as a communicable disease, the civil authority orders issued to stem the spread of the disease, and the fact that the NBA’s plan to resume play for the 2019-2020 season did not include Toyota Center as support for its claims of breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Texas Unfair Claim Settlement Practices Act. Plaintiffs seek declaratory relief as well as special and consequential damages. As stated in the complaint, “[s]imply put, Toyota Center has lost its functionality and has been impaired by the existence of COVID-19.”

Whether lawsuits such as this will be the coming trend remains to be seen. A lot might depend on the success of the Rockets’ lawsuit and the federal action filed by the minor league teams. Until then, we’ll just have to wait for the buzzer and see how the court rules.

Texas Supreme Court Rules on Bar Admission in Time of Covid

If you are now, or have ever been, a licensed attorney, then you probably have a hazy constellation of bar exam memories seared into your brain. While each state handles its aspiring practitioners in different ways, for many lawyers nationwide the experience included being herded into a massive space packed with folding tables, borderline elbow-to-elbow with hundreds of other emotionally-exhausted recent graduates fueled by a summer’s worth of coffee and pizza, under the watchful eyes of a battalion of retiree proctors. Is it possible to replicate this special rite of passage in the time of Covid? The Texas Supreme Court, which ultimately controls the method of bar admission state-wide, decided on Friday it is not currently feasible to do so.

Some states, such as Washington and Utah, have decided to temporarily waive bar exam requirements for prospective attorneys who meet certain qualifications, like holding a JD from an ABA accredited school, or who fulfill a certain number of hours of supervised legal work. Here in Texas, law school deans, students, and prominent attorneys around the state, called for the state Supreme Court to similarly implement a “diploma privilege” that would have allowed JDs to earn licensure through supervised practice, or even just by virtue of having a JD.

Indeed, Texas has offered diploma privilege for bar admission in the past, though it has been almost 100 years. The requirement for a written examination was first implemented in Texas in 1903. Two years later, in 1905, UT Law graduates were able to join the bar without sitting for the exam (Texas Laws 1905, page 150, Laws 1919, page 63). In 1919, these rules were expanded to include graduates from other law schools, unnamed in the Act but enumerated in accompanying Rules. According to a 1978 article in the Houston Law Review, the reason for this expansion was lobbying from the then nascent (and now nonexistent) TCU law school to break the UT diploma privilege monopoly. (Stephen K. Huber & James E. Myers, Admission to the Practice of Law in Texas: an Analytical History, 15 Hou. L. Rev. 485, 512 (1978).) Rather than expand the diploma privilege to graduates of other Texas law schools, the Texas Supreme Court decided at that time to instead expand the privilege to graduates of law programs of high national renown, in order to encourage attorneys of quality to consider a move to Texas. The eight schools then covered besides UT were University of Virginia, Washington and Lee, Harvard, Yale, Columbia, University of Chicago, University of Michigan, and George Washington University. (Id.) The Texas diploma privilege lasted in this form until its total repeal in 1935.

Instead of reviving some version of the long-gone diploma privilege, even temporarily, this past Friday the Texas Supreme Court opted for a hybrid model. First, the Court outright cancelled the July 2020 exam administration previously scheduled for the end of this month. Next, the Court has ordered an in-person exam be administered September 9 – 11th, “subject to guidance from public health authorities.” Scoring will be rushed to only be delayed by three weeks from the typical release of July scores. Third, the Court has ordered a bar examination be offered on-line the first week of October. Finally, the Court has asked law school deans and local bar organization leaders to help identify practitioners willing to formally supervise practice by JDs who will sit for the bar in either September, October, or February 2021, thereby providing a path to begin practice despite disruption to the exam administration.

As Covid spread puts Texas on the map as a global hotspot, it seems likely the Texas Supreme Court may revisit the issue of diploma privilege again in the coming months. But with the bar now postponed at least six weeks, students can breathe a brief sigh of relief before getting back to their flashcards.

Texas Online Public Information - Courts (TOPICs)

The Supreme Court of Texas has recently revised the rules governing citation by publication. The change was the result of Section 9.02 of Senate Bill 891, which amended Tex. Govt. Code §§ 51.607(a) and (b) and mandated the Office of Court Administration (OCA) to create and maintain a “public information internet website” that would house citations or other public notices that parties are required to publish under court rules. Furthermore, such website must be accessible and searchable by the public. To satisfy this legislative directive, the OCA has developed Texas Online Public Information - Courts (TOPICs) for the posting of citations and other legal notices. The OCA maintains the website, but the district clerks, county clerks, and court staff are the parties that upload the information. Users can search TOPICs by Name, Cause Number, and Court/County. Results include details, such as citation type, start and end date of the publication notice, and text of the citation/notice.

In connection with the legislative amendment, the Supreme Court of Texas revised Rules 116 and 117 of the Texas Rules of Civil Procedure. The revised Rule 116 requires, except in limited circumstances, that the citation be served in both a newspaper and on the Public Information Internet Website. Rule 117 was changed to specify the information that must be included on a return of citation served by publication. Although the order states that the effective date of the revised rules was June 1, 2020, due to COVID-19, the Texas Supreme Court delayed the effective date of the order until July 1, 2020.

Fundamental Right of Parents

Parents have the fundamental right to make decisions regarding the care, custody, and control of their children. The United States Supreme Court recognized a parent’s liberty interest, perhaps one of the oldest, in its decision in Troxel v. Granville [530 U.S. 57 (2000)], a case which struck down a Washington statute granting visitation rights to any person when such visitation was in the best interest of the child. The Court held that the statute unconstitutionally interfered with the parents’ rights to raise their children. In Troxel, the Court applied the presumption that a fit parent necessarily will act in the best interest of the child, and in such case, there would be no need for the state to interfere.

This presumption is at the forefront of a recent case decided by the Texas Supreme Court, In Re C.J.C., a matter involving the modification of a child custody order. The father filed a motion to dismiss the modification proceeding that was filed prior to the death of the child’s mother. The child’s grandparents petitioned to intervene, requesting that they be named joint managing conservators. The mother’s partner with whom she had been living at the time of her death also intervened, seeking the same relief as the grandparents as well as court-ordered visitation. The trial court issued temporary orders naming the mother’s partner a possessory conservator. The father filed a petition for a writ of mandamus, which the appellate court denied. The Texas Supreme Court took up the petition.

The primary issue before the Court was whether the fit parent presumption applied in a child custody modification case. The Court held that “[w]hen a nonparent requests conservatorship or possession of a child, the child’s best interest is embedded with the presumption that it is the fit parent - not the court - who makes the determination whether to allow that request.” Although neither the nonparent standing statute nor the general modification statute includes the fit parent presumption, the Court reasoned that because the modification statute takes into account that the child’s best interest was determined in the original custody proceeding, that determination necessarily includes the fit-parent presumption. Thus, the father was entitled to a presumption that he determined the child’s “best interest based on his fundamental right as a fit parent.”