“I Saw It on Facebook, Now How Do I Use It at Trial?” We Know You're Doing a Million Things at Once, That's Why We Provide Quality Services Like You Need Them...FAST!

summer 2010 vol. 16 no. 1 Texas ParalegalTPJ Journal

“I Saw It on Facebook, Now How Do I Use It at Trial?” We know you're doing a million things at once, that's why we provide quality services like you need them...FAST!

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Registered Agent Solutions, inc. www.rasi.com (888)705-7274 and only gather wealth for their own desires. You were created to make a P r e sid e nt ’ s difference. How do you want to make a difference in the world, your commu- by Debra Oaks Guerra nity, your profession? True joy comes Message from focusing on helping others and work for a firm that even know what they are? Iinvests in energy. The improving their lives. Start building United States Department Discover Your YOUR legacy today! of Energy is investing bil- Natural Resources lions of dollars in alterna- Realize Sustainability tive energy solutions. It’s What are your goals? Sustainability is the capacity to endure. all around us. Depleting What is the vision you have It is the potential for long term main- natural resources is the for your life – not just a tenance of well being. When you tap buzz word everywhere you vague dream or idea – a into your natural resources and begin turn these days. People have concrete, exciting vision of to live the life you were designed to great concern about our what you would love to live, your life takes on a whole new dependence on foreign oil, accomplish? I challenge each meaning and vibrancy. Don’t miss it. the diminishing rain forests, the fear of you to dig deep within and begin to Don’t waste it. Begin creating the life of the wildlife extinction, and so much unearth the passion that may lie bur- you love by mining and sustaining your more. ied underneath insecurity, unbelief or own natural resources today. After all, busyness. as the Paralegal Division turns 30 and While we fight these causes, we may be celebrates its “pearl” anniversary - what ignoring a much greater concern – the What do you love to do? better way to acknowledge that mile- dormant natural resources within each What gets you excited and energized? stone than by discovering the treasures of us. Every person has been created What sorts of projects or conversa- buried deep within? with the ability and talents to create tions do you enjoy taking part in? If It is my great privilege to serve as your a phenomenal life of abundance. We you could have a day doing anything 2010–2011 President. I commit to work all have the ability to thrive. Have you that brings you joy, what would you be closely with the Board of Directors to tapped into your natural resources to doing? These are clues of your personal represent all the members of this great build the life you were created to live or design for success. organization. As always, there is much are they wasting away, unused? work to be done, yet I look forward What do you want others to remember with great anticipation to our jour- Do you realize the unique talents you you for? ney of discovery and sustainability as have been given to help those less for- When you tap into the legacy you want together, we harvest and further the tunate, to guide your profession or to to leave, you are getting to the heart of natural resources within the Paralegal be filled with joy and contentment? what you were created to do. No per- Division. Are you using your inner gifts? Do you son was created to live for themselves

Have you been to a great CLE presentation lately? Has your attorney given a CLE presentation lately?

Then the TPJ needs your help!!!

If you’ve been to a great seminar lately, or your attorney recently prepared a paper for a seminar, please ask the attorney/author if he would be willing to submit the paper for publication in the TPJ. It truly is as simple as that!

Articles need to be submitted in Word format, and the author needs to sign and return the Reprint Permission form found on the Paralegal Division website.

If you have any questions about submitting an article, please contact Editor Heidi Beginski at [email protected].

summer 2010    PARALEGAL ETHICS HANDBOOK 2009 EDITION

BY ELLEN LOCKWOOD, LAURIE L. BORSKI, RHONDA J. BRASHEARS, DEBRA CROSBY, JAVAN JOHNSON, LISA SPRINKLE, AND OTHER MEMBERS OF THE PARALEGAL DIVISION OF THE STATE BAR OF TEXAS

This handbook is an essential resource for experienced One softbound volume - $57 paralegals, those new to the profession, and attorneys Call or Order Online at working with them. 1-800-644-5009 west.thomson.com The product focuses on providing paralegals with the information, guidelines and tools necessary to assure they are always performing in an ethical manner. Paralegals must always take care to be sure they are not crossing any ethical lines. Ethical guidelines for paralegals and attorneys, vary from state to state, however, the professional paralegal needs to be familiar with them. Answers to a myriad of ethics questions can be found in this handbook including: • Defining ethics and ethical obligations • Remaining ethical • Ethical considerations for a variety of functional areas including corporations, freelance, and as administrative, governmental, regulatory law paralegals, and alternative dispute resolution • State Information • Includes paralegal association ethics canons and related information

In addition, this handbook covers ethical considerations in practice areas including:

• Banking • Immigration • Finance, and Investment • Intellectual Property • Bankruptcy • Labor and Employment • Civil Litigation and Personal Injury Law • Estate Planning • Consumer • Public Utility, Energy and Energy • Corporate Resources • Criminal • Real Estate • Environmental and Natural Resources • Tax • Family

   july 2010 L-357311_SzA.qxp:0 4/22/10 8:19 AM Page 1

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july 2010  © 2010 Thomson  Reuters L-357311/3-10 Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters. summer 2010 Texas ParalegalTPJ Journal Focus on. . . Et Al.

I Saw It On Facebook, Now How Do I Pro Bono Contest Winners Announced Use It At Trial? For some reason, many users of both 25 social networking sites and messaging services do so without any, or very little, The Rain In Spain ... Fell Mainly in discretion about what they post. This Barcelona unguarded approach to use of these services has begun to provide litigators with 26 powerful weapons in the courtroom. 7

Hot Cites Columns

Health-Care Reform: How Does It Affect You? President’s Message 13 1

Up in the Clouds Editor’s Note 14 5

Scruples Texas Family Law in the Military The Ethics of Technology Combat Zone 24 16

   summer 2010 Publications: e dit o r ’ s Heidi Beginski, TBLS, Editor Debbie Guerra, President by Heidi Beginski Norma Hackler, CMP, Coordinator by Heidi Beginski, Board Certified Paralegal, Personal Injury Trial Law, Texas Board of Nan Gibson , Board Advisor Legal Specialization Note mail, instant message, text message, Twitter, Tweet ... new lexicons in our lan- Art Direction: David Timmons Design. 4703 Placid Place, Austin, Eguage and our lives. Have you serached the internet or a social networking site Texas 78731 . Phone 512-451-4845, Fax 512-451-1087. for information on an opposing party, witness or expert? Today, click on an icon and E-mail: [email protected] you may learn more than you hoped about someone. Paralegals have already mastered The Texas Paralegal Journal is published four times a the art of finding this information; Michael Sawicki’s article in this issue gives us guide- year as a service to the paralegal profession. A copy lines on the other half of the puzzle -- how it can become admissible. of each issue is furnished to the members of the Paralegal Division as part of their dues. Many days I feel as though either my computer is (or I am) off in the wild blue yonder (and not in a good way) and being about as productive as staring at the clouds. Turns Paralegal Division out, that could actually be a new tool for law firms to store and retrieve data and utilize President Debbie Guerra President Elect Susan Wilen, R.N. shared software located in a remote location that is owned or managed by a third-party Parliamentarian Michele Flowers Brooks and accessed through the internet. In this issue, Kelley O’Conan provides a great over- Treasurer Cheryl A. Bryan, CP view of cloud computing. Secretary Michelle Rayburn, PLS, CP

BOARD OF DIRECTORS Family law is challenging enough, but representing military personnel and their family Debbie Guerra, President, Irving; Susan Wilen, members during combat adds a whole new twist to the situation. Donald L. Williams’s R.N., President Elect, San Antonio; Nan Gibson, Houston, District 1 Director; Joncilee M. Davis, ACP, article provides an outline of the issues that must be resolved for these clients. Dallas, District 2 Director, Michele Rayburn, PLS, CP, Secretary and District 3 Director, Fort Worth; If you did not travel to Spain on the most recent Division trip, be sure to read the article Michele Flowers Brooks, Parliamentarian and District 4 Director, Austin; Kristy Ritchie, District 5 Director, recap in this issue, and check out the gorgeous photographs -- it’s the next best thing to San Antonio; Sheila Veach, CP, District 6 Director, having gone there! Lubbock; Misti Janes, District 7 Director, Amarillo; Carol Trevino, District 8 Director, Corpus Christi; Cheryl Bryan, CP, Treasurer and District 10 Director, Beaumont; Kim Hennessy, CP, District 11 Director, Texas Paralegal Journal (ISSN# 1 089-1633 ) is published four times a year in Summer, Fall, Spring, and Midland; Vacant, District 12 Director, Denton; Cindy Winter for $15 set aside from membership dues for a 1 -year subscription by the Paralegal Division of Powell, District 13 Director, Alvin; Shannon Watts, CP, the State Bar of Texas, 3 505 Black Mesa Hollow, Austin, Texas 78739. Periodical Postage Paid at Austin, District 1 4 Director, Longview; Cindy Curry, ACP, TX. POSTMASTER: Send address changes to the Texas Paralegal Journal, P.O. Box 13 75, Manchaca, District 15 Director, McAllen; and Linda Gonzales, Texas 78652 CP, District 16 Director, El Paso.

Circulation May 2010: Total Printed: 1,700; Paid or Requested: 1,544; Mail Subscriptions: 1,544; Total PUBLICATIONS COMMITTEE MEMBERS Paid and/or requested circulation: 1,544; Free Distribution: 50; Total Distribution: 1,594; Office Use or Heidi Beginski, Chair, El Paso; Nan Gibson, Board Leftover: 106 Advisor, Houston; Pam Knapp, Dallas, and Dora Hudgins, CP, Austin

DEADLINE FOR SUBMISSION OF ARTICLES FOR Texas Advanced paralegal Seminar THE FALL ISSUE IS JULY 5, 2010. 6SRQVRUHGE\WKH3DUDOHJDO'LYLVLRQ6WDWH%DURI7H[DV Texas Paralegal Journal © 2006 by the Paralegal Division, State Bar of Texas. Published quarterly in 6HSWHPEHU±2FWREHU Texas by the Publications Committee of the Paralegal 'RXEOH7UHH$XVWLQ+RWHO Division, P.O. Box 12487, Austin, Texas 78711 . The Texas Paralegal Journal is a magazine published to $XVWLQ7; provide information specifically for the members of the Paralegal Division of the State Bar of Texas, as well 7$36LVDGD\PXOWLWUDFN&/(VHPLQDUSURYLGLQJ as for members of the paralegal community in general, both in Texas and nationwide. Opinions expressed Networking opportunities with other Texas Paralegals herein are solely those of the writer and not the Board Opportunity to earn up to 14 CLE hours Capitalizing A CAPITAL IDEA! of Directors or of the Division. Publication of any Career advancement through education on ClE! advertisement herein does not imply endorsement Professional development opportunities in any manner. None of the information contained Exhibit Hall and Door Prizes TAPS CLE herein is intended nor should it be construed as legal Wednesday Welcome Social, Thursday Networking advice. Inclusion and editing of material submitted is Social and Friday Luncheon 2010! at the discretion of the editor and the editorial subcommittee. See www.txpd.org in June 2010 for complete registration packet.

summer 2010       july 2010 Focus on... “I Saw It on Facebook, Now How Do I Use It at Trial?”

By Michael Sawicki (with special assistance from Brandi Concienne)

Introduction The internet has revolutionized the way the world communicates. Information now moves in a variety of ways, is stored in many locations and can travel instantly across the globe amazingly, people are often incredibly frank when using this new technology, publishing intimate details of their lives for anyone who knows how to find it to see. Learning to find, collect and use this new information can arm litigators with powerful and economical tools. This information can be used to do a variety of trial-related tasks from instantly evaluating potential jurors to conducting potentially damaging discovery of an opponent or witness.

The Impact of New Information Technology Recent news stories demonstrate that new communication and social networking technology is providing powerful evidence in today’s courtrooms. For proof, consider the following: • In Arkansas, a $12 million jury verdict was almost overturned when it was learned one of the jurors had been posting details of the case on his Twitter account. • In Detroit, Mayor Kwame Kilpatrick was convicted of perjury and was forced out of office when thousands of pages of text messages were discovered that proved he had an affair with another worker. • In Rhode Island, a defendant in a DWI case received a stiffer sentence when prosecutors discovered photos of him drinking while wearing a prison costume on his Facebook page. T • In Milwaukee, a surgeon performed a knee surgery using Twitter to provide minute by minute descriptions of the procedure while it was actually taking place.

A few years ago, the use of social networking sites and instant messages were popu- lar among relatively small number of people. Today, hundreds of millions regularly log into sites like Facebook and Myspace to share information, re-connect with old friends and look for employment. It is estimated that there are currently more than 500 social networking sites online ranging from those with broad appeal, like Facebook, to others that which much narrower and often unique focuses, like Ravelry (a site specializing on knitting and crocheting) and Vampirefreaks (a site devoted to people wishing to dress and live like vampires). The sites are typically easy to join, encourage interaction between their members and can be a wonderful source of information about potential witnesses, parties to cases and even jurors. Along with the rise of social networks, the popularity of communicating using text messages, chat rooms and sites like Twitter has exploded. Most cell phone service includes text messaging capability and many web sites host services that can be used to conduct private chat sessions amongst individuals or groups. From AOL Instant Messenger to Yahoo! Messenger, there are now many methods available to send and receive information almost instantly. summer 2010    Focus9/28/09, 11:53 p.m. on… TWELVE MILLION DOLLARS For some reason, many users of both of somebody social networking sites and messaging CB: Where are you now? else’s money.” Stoam’s attorneys argued services do so without any, or very little, KK: At home waiting for all EP [ex- that these and other messages sent dur- discretion about what they post. This ecutive protection unit officers] ing the trial demonstrated that the juror unguarded approach to use of these ser- to leave. Where are you? was not impartial and conducted outside vices has begun to provide litigators with CB: At the residence inn in Madi- research about the issues involved in the powerful weapons in the courtroom. son hgts. case. The most high-profile recent example KK: What room? The Court ultimately held that the would be the amazingly quick downfall of CB: ...I’m in room 311 in bldg 3 in juror’s actions did not violate any rules Detroit Mayor Kwame Kilpatrick. the back. and denied the motion for new trial. The judge held that there was no evidence Kwame Kilpatrick 10/8/02, 10:18 a.m. the juror, Jonathan Powell, did any out- Kilpatrick and an aide, Christine KK: I’m fine. Need a break. I want side research about the case and that his Beatty, gave depositions in a civil wrong- to get out of town w/you. Check Twitter messages did not demonstrate ful termination lawsuit brought by a city on resorts outside of Houston. evidence of his being partial to either employee. The employee had alleged side. The judge noted that some of the that Kilpatrick and Beatty had conspired After the text messages were released, messages were sent before Powell was against him to have him terminated. In Wayne County Prosecutor Kym Worthy selected as a juror and that the attorneys the civil depositions, Kilpatrick denied announced a 12-count criminal indict- for the defense had not bothered to ques- any involvement in the decision to fire ment against Kilpatrick and Beatty, tion him about bias during jury selection. the employee and further repeatedly charging Kilpatrick with eight felonies In statements to the media, Powell said denied any affair with Beatty. Kilpatrick, and Beatty with seven. The charges he just wanted to be a good juror and who was married at the time, testified in included perjury, misconduct in office was looking forward to his involvement the civil depositions that he had nothing and obstruction of justice. Kilpatrick ulti- in the process. He said he did not use but a professional relationship with Beatty mately pled guilty to two felony counts his cell phone or lap top during the trial, and rarely saw her in person. of obstruction of justice, agreed to serve although he brought them to court each Then, the cat got out of the bag. a four month jail term, pay a $1 million day and warned, “The courts are just Attorneys got hold of more than 600 fine, surrender his law license, and resign going to have to catch up with the tech- pages of text messages Kilpatrick made on his post. nology.” a city phone. The records contained more than 14,000 text messages sent between Twitter Verdict Facebook DWI Kilpatrick and Beatty during 2002 and Consider this litigator’s nightmare: A 20-year old Rhode Island man had 2003, when the issues involved in the you’ve just tried a difficult case and won been charged with driving drunk and wrongful termination suit were happen- a multi-million verdict jury verdict. But, causing a crash that seriously injured ing. Contrary to Kilpatrick and Beatty’s days after the verdict, the other side another driver. Before his sentencing, testimony about their relationship, the moves to set it aside because of evidence prosecutors checked Joshua Lipton’s text messages revealed in intimate detail that a juror was texting messages about Facebook page as part of their routine that they were in fact having an affair. the deliberations. investigation. They found that two weeks Here are some of the messages. This is exactly what happened in an after he’d been charged with causing the Consider whether you would want to get Arkansas court in March 2009. Attorneys wreck, Lipton attended a Halloween party similar evidence about a defendant if you for Stoam Holdings filed a motion dressed as a “jail bird.” There were several could. requesting a new trial of a $12 million photos of him posing with his tongue jury verdict after they found that a juror sticking out in a black-and-white striped 9/12/02, 10:30 p.m., During trip to sent eight messages about the case on his shirt and an orange, prison-style jumpsuit Washington, D.C. Twitter account via his cell phone. One with the words “JAILBIRD” printed on the Christine Beatty: Can I just come message, sent before the jury announced chest. and lay down in your room until its verdict, read: “Ooh and nobody buy The prosecutors offered the photos you get back? Stoam. Its bad mojo and they’ll probably into evidence during the sentencing and Kwame Kilpatrick: Yes. cease to Exist, now that their wallet is 12m argued that Lipton was an “unrepen- lighter.” Another read: “I just gave away tant partier” who “lived it up” while the

   summer 2010 Focus on… female victim of the crash laid in a hospi- the target’s history or affiliations. Also on tal bed. The judge agreed, calling Lipton Facebook, a person can be “tagged” on “depraved” and handed down a 2-year a photograph uploaded by another user. prison sentence. This feature allows people to put names to faces on photographs and will show Social Networking Sites up in a search request. Facebook and Social networking sites have proliferated MySpace both allow users to remove the across the globe, with millions of users “tag” on photographs to maintain their and more springing up every day. They privacy, but this requires an affirmative typically focus on building online com- step to be taken. to send fake messages from someone munities of people who share similar Most sites have now created privacy else’s account. This led Twitter to offer interests or are interested in learning shields that allows access to users’ infor- users an optional PIN number to secure more about specific topics. Most pro- mation only to people they allow inside. their posts. In January 2009, more than vide users ways to trade messages, send But, once you are a “friend” most sites 30 high-profile users’ Twitter accounts pictures and videos and share informa- allow complete access to the information were compromised and fake messages tion over the internet through email and in another “friend’s” profile. Facebook – including sexually explicit and drug- instant messaging services. Typically, has recently started allowing users to related posts – were sent. This triggered joining the sites is free and can instantly further limit what information their Twitter to re-examine password security link a user with access to information on “friends” have access to and the general in an attempt to avoid future attacks. millions of people. Many users customize trend of other sites is to impose similar their sites with detailed personal informa- access limitations. How to Use and Access Social tion, including birthdates, work histories, Network Information voting preferences, political and social Jury Selection affiliations. Because information on social networks Gaining Access This unlimited access has concerned can be so personal and so revealing, it Accessing most of the social network- some of these sites’ operators and users has become a tool for litigators preparing ing sites is fairly simple. First, much of worried about who can see their informa- for jury selection. Many jury consultants the information contained on the site tion. Recently, some sites have taken steps use the sites to mine for information on can be picked up in a Google or Yahoo to reduce access and beef up user’s con- potential jurors before voir dire begins. search. Simply type in a person’s name trols over who can see their information. Start by getting the juror’s name and and then see what turns up in the search But the same search tools created to help entering it into search engines. If they engine response. Second, since access to link users with long-lost friends and oth- have public personal profiles, you can most social networking sites is free, cre- ers with similar interests can be used by obtain a very personal and unmitigated ate your own account and use the site’s anyone seeking to get more information. look into the person’s beliefs, likes and internal search features to look for people The number of social networking sites dislikes. This type of search is quickly of interest. Some sites allow you to search seems to be expanding each day. There replacing money spent on private inves- by things like a person’s high school or are sites for almost any type of interest tigators to look into the background of university or other group affiliations. By including sites for job searches, religious potential jurors. For the time and nomi- entering the name of the school into the organizations, and many “special” internal expense of an internet search, you can search engine, you will find anyone who ests. often obtain just as much information has listed it on their profile pages. From as a more expensive private investigator there, you can access the person’s profile Privacy and security might find. if the user has made it public. But even if Twitter collects personally identifiable the user has not made it public, you can information about its users and shares Discovery – How to get the information still learn about a person by seeing what it with third parties. Twitter considers Most service providers seem to be aware is connected to the user. For example, on that information an asset, and reserves of the potential value of information Facebook, a search result on a user with the right to sell it if the company changes on their sites and have erected barri- a private profile will still reveal who that hands. ers to make it difficult for people to get person has made “friends” with. From Twitter had some problems with it. They frequently cite the Electronic there, you can often find information security as hackers have accessed the site Communications Privacy Act; 18 U.S. C. that may reveal more information about

summer 2010    Section 2701 which prevents an electronic Focusprocessing files, computer databases,on… and Comment Number 3 to the Rule communications service provider from almost anything that can be stored on a states: producing the contents of a electronic computer. The commentators indicate A party requesting production communication even if subpoenaed. that the rules were intended to be read of magnetic or electronic data must Providers also typically have terms of broadly to apply the ESI definition to specifically request the data, specify service policies that govern how long they many forms including traditional e-mail, the form in which it wants the data maintain electronic communications. text messaging, instant messaging, per- produced, and specify any extraor- These terms can usually be found on the sonal web mail, voicemail, Blackberry dinary steps for retrieval and trans- site itself. For example, America Online’s devices, ‘blogs,’ and other emerging tech- lation. Unless ordered otherwise, policy is to maintain emails sent over nologies. Litigants in federal courts are the responding party need only their system for a period of only “approx- now faced with an obligation to preserve produce the data reasonably avail- imately two days after the email has been potentially relevant information con- able in the ordinary course of busi- read.” After that, the email and all records tained within any of these sources. ness in reasonably usable form. of it are deleted. It’s policy also states that The Texas rules and case law have not it does not retain the contents of chat kept pace with the Federal developments. There have been several cases dealing room or instant message communications In fact, the Texas Rules of Civil Procedure with the use of evidence obtained from nor does it store information about any make very little effort to differentiate social networking sites. However, the member’s internet usage. electronic discovery from any other form decisions do not provide much direc- MySpace’s terms claim that will not of discovery. Only Rule 196.4 of the Texas tion on the steps necessary to discover or respond to civil or criminal subpoenas, Rules of Civil Procedure addresses the make the information admissible, instead unless the request comes from a law production of electronic or magnetic focusing on other issues. Here are some enforcement agency. data. It states: of the cases: Most phone services claim that they do In In Re Rodney Reed, (an unpublished not maintain records of instant messages To obtain discovery of data or 2009 case at 2009 WL 97260) the Texas sent over their lines but frequently can information that exists in electronic Court of Criminal Appeals dealt with provide records showing the time and or magnetic form, the request- a case where pages from a defendant’s receiver of them. For example, Sprint ing party must specifically request MySpace page were offered as evidence. will provide a “call detail record” that production of electronic or mag- The defendant filed an appeal of a capi- will show the time the instant message netic data and specify the form in tal murder conviction claiming that the was sent and what number it was sent to. which the requesting party wants investigating officer had a history of vio- This information has only been kept since it produced. The responding party lence. He sought to introduce MySpace November 2007. must produce the electronic or pages containing sexually explicit and magnetic data that is responsive to violent images that he claimed were creat- Use at Trial – The Law in Texas the request and is reasonably avail- ed by the officer. The Court did not allow While there has been an explosive growth able to the responding party in its introduction of the evidence because the of information available on the inter- ordinary course of business. If the defendant could not sufficiently demon- net, the law has not kept pace with the responding party cannot—through strate that they were in fact created by the developments. The Federal Rules were reasonable efforts- retrieve the officer. The defendant produced evidence recently amended to address discovery of data or information requested or showing the pages were created by an electronically stored information (ESI). produce it in the form requested, individual named “pointman-1” who In general, the new Federal rules, for the the responding party must state was listed as a “34-year old, 5’11,” straight first time, explicitly made mention of ESI an objection complying with white male, SWAT operator in Texas. The and began to set out a framework for how these rules. If the court orders the court concluded that, even though the to deal with it. The rules set out methods responding party to comply with descriptive information was similar to the requiring parties to deal with e-discovery the request, the court must also officer, there was not enough to prove he issues early in the case and provide a pro- order that the requesting party created the page and did not allow the cedural mechanism through which parties pay the reasonable expenses of any evidence. can produce and protect electronic data. extraordinary steps required to Munoz v. State, 2009 WL 695462 (Tex. Under the new rules, ESI includes (but retrieve and produce the informa- App. - Corpus Christi 2009) dealt with is not limited to) e-mail, web pages, word tion. introduction of MySpace pages for a

10    summer 2010 Focus on… defendant in a aggravated assault case. tion and confirmed its contents, the IM sions of web site content, stored and The pages showed the defendant flashing ‘transcript’ was properly authenticated. available at a third party web site, were gang-related signs and associating with U.S. v. Burt (7th Cir.,July 26, 2007) 495 admissible into evidence under Federal other known gang members. The pros- F.3d 733 Rule of Evidence 901. The contents of ecution offered the pages to prove the Logs of a Yahoo! chat were admissible the web site could also be considered an defendant was in a gang at the time of the when properly authenticated. admission of a party opponent, and thus assault. The court allowed the pages in Lorraine v. Markel American Insurance are not barred by the hearsay rule. over the testimony of a police gang unit Company (D.Md. May 4, 2007) 241 F.R.D. With little case law guidance, the officer who testified that he had reviewed 534. approach to using evidence obtained the pages, identified the defendant in Case provides a comprehensive analy- from social networking sites is best based them and was familiar with signs used by sis of how to authenticate digital evidence on the basics. Consider how to authenti- gangs. such as digital cate the materials, i.e. having the witness In Williford v. State, 127 S.W.3d 309 photos, email and text messages. or subject prove up the evidence before (Tex. App.-Eastland 2004) the court People v. Hawkins (June 2002) 98 Cal. trial through interrogatories, admissions upheld the use of “Encase®”, a software App.4th 1428. Court addresses California or deposition testimony. Next, review program that allowed tracking of a user’s Evidence Code section 1552 [printed the evidence to look for potential hearsay internet and computer use history. representation of computer information objections. Finally, consider working out or a computer program is presumed to a discovery plan with opposing counsel Other cases be accurate]. Court noted “the true test to allow the parties to stipulate to the Courts in other states have also started for admissibility of a printout reflecting admissibility of the evidence early on in looking at issues concerning the use of a computer’s internal operations is not the litigation. web sites and other materials. Some of whether the printout was made in the those cases are: regular course of business, but whether Ethical Issues related to Social the computer was operating properly at Networking sites Email Authentication the time of the printout.” With any new litigation tool comes the U.S. v. Sidiqui (11th Cir. 2000) 235 F.3d challenge of using it ethically. The lure of 1318. Authentication of screen name using the Internet’s anonymity to collect E-mails introduced into evidence over People v. Von Gunten (2002 Cal.App.3d information about witnesses, opponents, defendant hearsay and improper authen- Dist.) 2002 WL 501612. [Unpublished.] jurors and adverse lawyers can become a tication objections. Defendant laid an inadequate founda- trap. Court analyzed the authentication tion of authenticity to admit, in prosecu- Because the technology is so new, few issues under traditional evidentiary stan- tion for assault with a deadly weapon, states have directly addressed lawyer’s use dards. (FRE 901(a) and hard copy of e-mail messages (Instant of social networking sites. This includes 901(B)(4).) Contains good discussion Messages) between one of his friends and how they advertise as well as how the sites of circumstantial evidence of authentic- the victim’s companion, as there was no are used during litigation. The few states ity but no discussion as to the technical direct proof connecting victim’s com- that have weighed in on the topic have aspects of e-mail. As to hearsay objection, panion to the screen name on the e-mail relied on basic ethical principles to reign the e-mails were considered admissions of messages. in misuse of the electronically available a party. (FRE 801(d)(2)(A).) information. While Texas has yet to adopt Introduction of Web Sites any specific rule or issue an ethics opin- On-line Evidence Admissibility EEOC v. E.I dupont de Nemours & Co., ion on the subject, the direction provided United States v. Brand 2005 WL 77055 2004 WL 2347559, 65 Fed. R. Evid. Serv. by other states should help identify a path (S.D.N.Y. January 12, 2005). 706. to avoid ethical breaches. Chat transcript of AOL instant mes- Printout from Census Bureau web site One subject that has been raised is the sages admissible since it was sufficiently containing domain address from which use of subterfuge to gain access to a wit- similar to the charged conduct. image was printed and date on which it ness or opposing party’s social networking Hammontree v. State (Ga. Ct. App. was printed was admissible in evidence. sites. In some cases, lawyers have created 2007) --- S.E.2d ----, 2007 WL 547763 Telewizja Polska USA, Inc., v. Echostar false personas to solicit a “friend” request Where the victim testified that she was Satellite Corp. (N.D. Ill.2004) 2004 WL to a target. In others, lawyers have used an ‘actual participant’ in the IM conversa- 2367740 [Not Reported] Archived ver- investigators or other third parties to

summer 2010    11 Focus on… “friend” the target and solicit information criminal act or knowingly assist- social networking site is used to get the and evidence to be used against them. ing a fraudulent act perpetrated information. Pennsylvania’s state bar ethical committee by a client. Other considerations include using issued an advisory opinion in March 2009 social networking sites to advertise a addressing the appropriateness of using a The Comment to the rule notes: lawyer or a law firm. In most cases, the third party to “friend” a subject involved 2. A lawyer violates paragraph (a) pages on a social networking site will have in litigation. The committee looked at of this Rule either by making a false to meet the ethical requirements gener- the appropriateness of asking someone statement of law or material fact ally applicable to any lawyer advertising. unrelated to the lawyer’s staff to request or by incorporating or affirming Again, there are no rules directly yet on access to the target’s social network- such a statement made by another point, but with the increasing number of ing pages and then correspond with the person. Such statements will vio- lawyers using Facebook to tout their ser- target in an attempt to solicit damaging late this Rule, however, only if the vices an opinion is all but inevitable. evidence. The Pennsylvania committee lawyer knows they are false and Finally, be careful what you or your questioned whether this technique was a intends thereby to mislead. clients post on any social networking site. form of “deception in investigation” or The safest way to approach posting any whether it was similar to efforts to sur- Such conduct could also run information is to determine whether it reptitiously videotape a subject while they afoul of Rule 8.04 regarding mis- is potentially damaging. If it is, presume went about in public. The committee held conduct. It states: that the information is going to get out such actions would not be condoned. (a) A lawyer shall not: one way or another. Many lawyers now The committee concluded that the lawyer require their clients to remove or deacti- would be held responsible for the actions (1) violate these rules, vate any social networking site they have of a third party used to gain access to a knowingly assist or induce during the pendency of the litigation. As social networking site under Pa. R. Prof. another to do so, or do so unrealistic as this request may be, it may Cond. 5.3 (note: Pennsylvania’s ethical through the acts of another, not solve the problem as information rules are patterned off the ABA Model whether or not such violation from the pages can linger because of con- Rules). In other words, just getting occurred in the course of a nections to other user’s pages. someone else unrelated to the lawyer did client-lawyer relationship; It isn’t only clients that have to worry not insulate him/her from their actions. about what they post on their pages. The Committee further noted that the (3) engage in conduct involv- Galveston-area Judge Susan Criss report- conduct would violate other rules that ing dishonesty, fraud, deceit ed a story about one lawyer who got into prohibited making a false statement of or misrepresentation; trouble in her court because of a status material fact to a witness. update on a Facebook page. The lawyer It is worth noting that the Texas Rules This section would likely make the had requested, and received, a continu- of Professional Conduct contain language lawyer ultimately responsible for the ance of a matter before Judge Criss claim- similar to that cited by the Pennsylvania actions of the third party. This section ing that her father had died. But the committees. Rule 4.01 states: would also be invoked to remind the law- lawyer, who had previously “friended” yer that they cannot use a third party to the Judge, went on to post a string of Truthfulness in Statements to engage in conduct that the lawyer would Facebook updates detailing her week of Others be ethically prohibited from doing as partying and drinking with friends while In the course of representing a cli- well. she was allegedly in mourning. Needless ent a lawyer shall not knowingly: The rule I would suggest following to say, the lawyer had some explaining to is to first consider whether the actions do at her next court appearance. Judge (a) make a false statement of would be considered appropriate if done Criss has also discussed seeing lawyers material fact or law to a third in a context outside of a social network- who have bragged about how much they person; or ing site. For example, would it be appro- were going to win in an ongoing case or priate to misrepresent your identity to a complaining about the actions of oppos- (b) fail to disclose a material witness in an effort to collect evidence? ing counsel in most colorful terms. fact to a third person when dis- If the disciplinary rules prohibit the con- closure is necessary to avoid duct, chances are it is also going to be Michael G. Sawicki is with Sawicki & making the lawyer a party to a prohibited if the only difference is that a Lauten, L.L.P. in Dallas.

12    summer 2010 Hot “Cites” IRAs and 401(k) accounts. Health-Care Reform: How Does It Affect You? If you don’t have insurance If you don’t have insurance, or if it’s too expensive, the new reforms may make it easier for you to get and keep health Craig Hackler, Financial Advisor, Raymond James Financial Services, Inc., insurance. By 2014, insurers will have to Member FINRA/SIPC accept you regardless of your health history, and premiums can only vary based on ow that comprehensive health- Medicare Part D participants tobacco use and age. Prior to that time, if Ncare reform has been signed into you haven’t been able to get insurance for law, how will it affect you? While some who find themselves paying at least six months due to a pre-existing portions of the law become effective in all of the cost of their pre- condition, you will be able to purchase 2010, other provisions are phased in over scriptions after reaching insurance through temporary high-risk time. Nevertheless, it is almost certain a minimum threshold, a pools. that at least some of these reforms will In 2014, Medicaid availability is have an effect on you and your family. situation referred to as the expanded to those under age 65 with “donut hole,” will gradually incomes up to 133% of the Federal If you already have health insurance see their out-of-pocket Poverty Level (FPL). You will also have First, by 2014, most U.S. citizens and legal state-based American Health Benefit residents will be required to have qualify- expenses decrease Exchanges, available by 2014, through ing health insurance or face a possible which you can buy health insurance from fine. But even if you already have insur- various plans. In addition, premium and ance, some reform provisions may affect If you have Medicare cost-sharing subsidies will be available for individuals and families with incomes you. For instance, beginning this year, Medicare beneficiaries will also see some at or below 400% of the FPL, which can you generally can keep your adult child changes to their coverage. You’ll be aid in reducing the cost of insurance pur- on your coverage up to age 26. And, your covered for most preventive and well- chased through exchanges. insurer will no longer be able to rescind ness care expenses without co-payments your coverage if you get sick, impose life- beginning in 2011. Medicare Part D par- Content prepared by Forefield Inc, time coverage limits, rescind your cover- ticipants who find themselves paying all Copyright 2009 Forefield Inc. age except for fraud, or impose coverage of the cost of their prescriptions after This information, developed by an exclusions for your child due to pre-exist- reaching a minimum threshold, a situa- independent third party, has been obtained ing health conditions. In 2014, you can no tion referred to as the “donut hole,” will from sources considered to be reliable, longer be charged higher rates based on gradually see their out-of-pocket expenses but Raymond James Financial Services, your health status or gender, and insurers decrease, beginning in 2010 with the pay- Inc. does not guarantee that the foregoing cannot extend waiting periods beyond 90 ment of a $250 rebate, until 2020, when material is accurate or complete. Raymond days. the donut hole is completely filled. If James Financial Services, Inc. does not Starting next year, reimbursements you’re a Medicare Advantage beneficiary, provid advice on tax, legal or mortgage from health flexible spending accounts however, beginning in 2011, you may issues. These matters should be discussed (health FSAs) and health reimbursement see some of the extra benefits offered by with the appropriate professional. accounts (HRAs) for over-the-counter these plans dropped as government pay- Craig Hackler holds the Series 7 and drugs will be restricted, and tax-free reim- ments to these plans are restructured and, Series 63 Securities licenses, as well as the bursements from health savings accounts in some cases, reduced. And, in 2013, if Group I Insurance License (life, health, (HSAs) and Archer MSAs for over- you’re an individual with annual earnings annuities). Through Raymond James the-counter drugs will not be allowed, equal to or greater than $200,000, or a Financial Services, he offers complete while the tax on HSAs and Archer MSAs married couple with joint annual earn- financial planning and investment prod- increases for distributions not used for ings of $250,000 or more, your Medicare ucts tailored to the individual needs of qualified medical expenses. In addition, payroll tax will increase by 0.9%, from his clients. He will gladly answer any of beginning in 2013, contributions to health 1.45% to 2.35%. Also, for high income your questions. Call him at 512.894.0574 FSAs will be limited to $2,500 per year. taxpayers, a Medicare tax of 3.8% will or 800.650.3571. Raymond James Financial Finally, the income threshold for item- be applied to some types of investment Services, Inc., 151 E. Mercer Street, Suite A, izing medical expense deductions will income, such as rent, capital gains, and Dripping Springs, TX 78620 increase from 7.5% to 10% in 2013. annuity payments, but not distributions from qualified retirement plans, such as

summer 2010    13 to other servers. These servers may exist across the street or across the world. Up in the Clouds Although the information is usually kept in highly secure data centers, nonetheless control of the data is given up and reli- By Kelley O’Conan ance on providers is increased.

Hot “Cites” am not the most technology liter- not deduct the rent on your income tax Iate paralegal around. Growing up in return. Data Location a time when watching black and white Parties in a cloud computing arrange- Generally, a forum clause in the television was still a big deal, I have had ment are the cloud provider, the cloud contract will state the jurisdiction and to stretch during my professional life to end-user service providers, and the end- what law rules; however, laws in some grasp concepts such as spreadsheets and user. A cloud provider maintains the plat- countries will trump contractual terms. relational data bases, let alone e-filing form and possibly infrastructure whereas Ascertain if data are subject to the laws of and electronic document repositories. a cloud end-user service provider offers the jurisdiction where data are residing Recently I had to learn about cloud com- software and data storage. Contracts are and/or where they are being processed puting and my first thought was, “No, often non-negotiable click-wrap contracts and used. Determine if there are restric- this is too much like science fiction!” where the end-user clicks “I Agree” to tions on cross-border transfers and But then I calmed down and did some accept predetermined terms or they are whether the end-user has clients that research. Now I understand at least the standard templates with favorable provid- dictate data should not be located in some basics. If your firm is considering a move er terms and limited provider liability. countries. If there is a dispute and a com- to cloud computing or if a client has con- End-users can access the cloud by 1) plaint is filed based on in rem jurisdic- cerns over the legal issues involved, this IaaS [Infrastructure as a service] where tion, where the data reside are key. Clarify primer may be helpful. the provider delivers networks, additional how data residency will be determined storage space or computing power, or 2) if the data has been split into numerous What is Cloud Computing? PaaS [Platform as a service] where the locations. Cloud computing refers to an arrange- provider delivers a platform (for exam- ment where users store and retrieve ple, an operating system) so users can Data Storage and Retrieval data and utilize shared software located develop their own applications, or 3) SaaS The low cost of cloud storage is at a remote location that is owned or [Software as a service] where providers appealing and most courts accept elec- managed by a third-party and accessed deliver software applications (for example tronic copies of records. Weigh this cost- through the internet. The arrangement word processing). effective storage option against the ability allows companies to purchase the amount There are different types of clouds to retrieve the information quickly when of storage and services they need using available. The public cloud is the shared it is needed for daily processes. It may sig- a pay-as-you-go approach. Think of the pay-as-you-go arrangement previously nificantly impact an end-user if payroll or difference between renting an apartment described. A private cloud is where cloud marketing leads are not readily accessible. and owning a house. computing is emulated on a private Depending on the provider, retrieval time Benefits include lower costs (through network. For example, all the branch may be consistently high or intermittently metered payments, less capital invest- offices and headquarters share software slow. Business continuity effects bottom ment, less maintenance), scalability (add- owned by the company and the software lines, so verify if continual service will ing capacity and applications quickly is located in virtual space. A hybrid is a be available and what type of notice and and as needed), access from anywhere combination of public and private cloud arrangements are made for scheduled (controlled by a password), and central- computing. downtimes. Find out if the provider rou- ized upgrades being the responsibility Although the concept of cloud com- tinely backs-up stored data and establish of the third-party. If you are renting an puting is not new, its recent growth and how restoration service will be provided if apartment, you pay less, can more readily market share of business computing has data are lost or corrupted. Further, have upgrade to a larger one, take a job and mushroomed. Potential legal issues are a disaster recovery plan established and move cross country, and call the apart- now being considered and two primary tested so data can be retrieved if the pro- ment manager if the sink backs up. areas of concern have surfaced: data and vider goes bankrupt or is in a location hit Disadvantages include lack of stan- liability. by natural disaster or political instability. dards, loss of control, and some tax issues If the information needs to be moved (less to depreciate). If you move from one Legal Issues with Data electronically to a different application apartment to another, the drapes may Data may be moving at any given time and/or a different provider (temporar- not fit; you are limited as to how you can in the cloud. It can be stored on mul- ily during a scheduled downtime or decorate the apartment; and you can- tiple servers and travel whole or in part permanently due to a provider change),

14    summer 2010 Hot “Cites” make certain that formatting will not be usable format and whether a specific should demand privileged user entry a problem. Currently formats and proto- operating system will be needed. Can the where a password is required to access cols have not been standardized between provider convert the data to a more trans- data. The end-user may also consider cloud services. Determine how the pro- ferable format? The provider must be encrypting data before storing it with the vider will store the data and what format able to return all of the data and certify it provider. End-users may choose not to they will be stored in. Obtain assurance has been removed from their servers and store highly sensitive material, such as that retrieved data will be in the same for- their subcontractors’ servers. trade secrets or attorney client privileged mat they were submitted in for storage. information, in the cloud. Data Security Next, the provider needs to take initia- Data Retention A close cousin to data retention is data tive and offer assurance by establishing Records retention is governed by security. Traditionally, electronic records and maintaining high levels of security. complex rules and the end-user who is reside in an individual’s hard drive, a The end-user should be aware of the stan- responsible for assuring compliance needs company server, or a local provider’s dard of care utilized and the specific pro- to make certain the provider can appro- server. If there was more than one cus- cedures used by the provider. The pro- priately retain and destroy records. In tomer, the provider partitioned off sec- vider should be willing to undergo audits addition to multiple sites, providers often tions of the server for each one. Hence, if requested. The American Institute of split or condense related data and move each customer’s information was segregat- Certified Public Accountants Auditing them within the cloud to make efficient ed from other customers’ data. The pro- Standards Board has issued guidelines for use of their own servers. Sometimes data vider would negotiate with end-users and auditors under SAS 70 and providers can is moved to a subcontractor for storage. comply with their unique security needs. obtain SAS 70 certification. With this data management, the provider Since high volume is a main feature of Lastly, security audits use footprints must still be able to place a legal hold cloud computing, the provider does not to determine who has viewed or changed on a specific category of documents and necessarily take the time to partition a records. If the provider could supply metadata as directed by the end-user. shared server. With many end-users’ data footprints, the end-user may be able to During discovery, the provider must offer moving and on more than one server in set-up a process to recognize if data has reasonable certainty that all requested the cloud, unauthorized access, either been altered or is missing. records and possibly metadata have been accidently or purposefully, is a concern. provided. Also the end-user needs to Potentially other end-users, the service Patterns of Data reflect on how forensic computing will be provider and the cloud provider could Providers have access to data patterns performed since it is based on maintain- accidentally access the end-user’s data. of not just one, but many end-users. ing a pristine copy of the server prior to Cyber-terrorists could hack data packages These patterns could be used by the pro- the legal record review. Can the provider as they are transferred within the cloud. vider or sold by the provider to develop sufficiently locate, isolate and extract all Unfortunately, in cloud computing, computer tools or marketing strategies by the required data from multiple locations end-users depend on the physical and vendors. For example, if massive amounts without accidently exposing other end- logical security the provider has set up. of accounting information are typically users’ information? Will the provider cer- Negotiated security standards are not retrieved in January, vendors may market tify this has been done or will they allow commonplace, since profits for cloud software to sort and categorize financial the forensic examiner access to do so? providers are based on volume, not information and introduce it to the mar- Consider if the end-user will receive customization. However, providers can- ket in the last quarter. End-users may notice or even be aware if the provider not disclaim obligations to protect data. want to specify that they own the pattern has been served and ordered by a third- There a variety of laws that may apply of their data. party to supply information stored on to end-users’ data and demand security Finally historical information on the their servers. Potentially some or all of and privacy of information: U.S. Patriot data patterns and on services the pro- the end-user’s data may be turned over. Act, HIPAA (health information), GLB vider supplies should be available to the Evaluate the impact to the end-user when (financial services), Fair Credit Reporting end-user for analysis, benchmarking and the provider is subject to a search warrant Act, Stored Communications Act (elec- auditing. or seizure. If a provider is the target of an tronic communications, part of the investigation, particularly in a different ECPA), Privacy Act (for federal agencies), Conclusion country, will that compromise the end- trade regulations (ITARS, EARS), Data The law cannot keep up with the tech- user’s data? Protection Directive in the EU, and more. nology. This has been a non-exhaustive Make sure an exit strategy has been As this article is being written, the Cyber list of possible legal issues. Many more developed, including rights and obliga- Security Enhancement Act is being con- will surface as the technology is used and tions of both provider and end-user. sidered by Congress. problems arise. Consider whether the data will be in a As a partial solution, the end-user Due diligence should be performed

summer 2010    15 prior to entering into an agreement with impact on your firm to determine what Become familiar with the concepts so a cloud provider. The provider should issues may be important to you going that you can add to the discussion at your be financially stable and have a track forward. Do not place highly sensitive firm. record. Determine if the provider’s serv- information in the cloud. ers are located in stable areas of the world If entering into an agreement, have Kelly O’Conan is a certified paralegal who and are physically secure. Check if there a negotiated contract if possible. If it is works in insurance and corporate law. She

Hot “Cites” is an over-reliance on subcontractors, a boilerplate form, at a minimum make teaches paralegal studies part-time and is especially start-up or financially unstable certain that key issues are addressed. Have the Scholarship Chair for the Fort Worth ones. Find out what type of litigation has an attorney review the agreement before Paralegal Association. She serves on the PD occurred, what is outstanding and if there signing or clicking the “I Accept” button. Professional Development Committee and are any ongoing third-party claims. Cloud computing could be the new holds membership in NALA and the Metro- Arrange a trial with a cloud provider paradigm in how information services plex Association of Corporate Paralegals. or choose a cloud service that is low- are provided to the business community.

cell phone number. The initial interview MUST be precise, Texas Family Law in the concise, timely and highly informative for both of you. It may be your last face to Military Combat Zone face encounter. JURISDICTION By Donald L. Williams Spend considerable time on jurisdictional the intake staff is instructed to get their matters. The state of Texas may have Representing military personnel and their rank. Not only is it a sign of respect to jurisdiction over your client and not the family members in Family Law related address military personnel by their rank, Respondent or the children. The court matters in peacetime can be one of the but it will also give you an insight as to may have jurisdiction over the parties, most challenging legal undertakings pre- the relevant complexity of your case and but not the property. The court may have sented to the Family Law Practitioner. the client’s ability to pay. It is disrespectful jurisdiction over both parties for divorce Now add a war and combat to the equa- to call a commissioned officer “Mister.” purposes, but not over the division of the tion and a totally different set of prob- “Mister” is a title reserved for warrant military retirement. lems, situations and challenges emerges officers; a subordinate rank to a commis- that is unparalleled in representing their sioned officer. An eagle insignia in the SERVICE OF PROCESS civilian counterparts. The purpose of army could be a “specialist” (E-4) or a Service of process is another con- this paper is to provide practical tips and “Colonel” (O6). Know and study the rank cern when the Respondent is stationed insights, and to demystify the issues and structure. You may call all male soldiers on a military reservation; when the highlight the uniqueness of this field of “Sir” and be within the bounds of proto- Respondent is on a ship in the United practice. As a result, there can be a bet- col. You may address all female military States or overseas; or on a base or post or ter understanding of the culture, needs personnel as “Ma’am” and dodge the bul- living on the economy overseas. and special requirements demanded by let. Familiarity terms may be interjected A common example is a Petitioner the military family’s status especially as you get to know your client. domiciled in Texas. The Respondent has when the servicemember is in a war Note that military clients may not be never been to Texas; the Respondent zone. Ultimately, a better representation able to wait a week for an appointment. is a resident of Washington State. The of the military client and the family can Stress and short time-frames are part and Respondent is in the process of PCSing to be had in the civil court system. It is not parcel of their daily existence. If at all Germany; and, upon arrival at his unit in the intent of this paper to give definitive possible give them special consideration Germany he is being deployed to Iraq. answers; however, it will raise definitive when scheduling appointments. Where is effective service and how is it questions that must be resolved. In the initial interview always include executed? concepts and terms such as Home of KNOW THE CULTURE OF YOUR Record, Deployment, Re-deployment, SERVICEMEMBERS CIVIL RELIEF ACT CLIENT LES, Basic Entry Pay Date, PCS, DIEMS, (SCRA) When a potential military client makes Relocation, TDY, Rotation, BAH, BAS, If you can get him served, what rights an appointment to see you, insure that Unit, Chain of Command, email address, does he have under the Servicemembers

16    summer 2010 Hot “Cites”

. 17 - - -

 : : THE  OF ” SERVICE states Code Code is enti    ECTS P AS Family  Family NS CODE PROVISIO  ON PUBLIC exas  Y RESIDENTS” exas T  T Y PERSONNEL FORCES NOT  D RELATE  MIL FA Y   This section can be read to allow for a Periods ofPeriods absence from the state for a Likewise, person who was not pre Time spent by a Texas domiciliary Time spent by a Texas  6.304 of the 6.303 of the viously a resident of this state but who serves in this state on military service may claim in residence the state for purpose of filing a divorce. for status a divorce service member who previouslymay have been domiciled in a as long as state other he than meets Texas the service of the armed or forces other service of States the or United of this state is in residence considered this state and in that county. service in the military are not counted against you when counting time towards resident and a resident beingof a Texas a particular county. § “ARMED PREVIOUSL A person not previously a resident of this state who is serving in the armed offorces States the and United has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days is domiciliary to and considered be a Texas a resident of that county for those periods for the purpose of filingsuit for dissolu tion of a marriage. and/or and/or my SBP election? MIL FA interview may include the aspects Your of criminal non-support and fraud, domestic adulteryabuse, as a criminal offense and whether it is advantageous to raise the issue; how bankruptcy debt, and NSF checks can affect a career or security clearance; why separation agreements and military family care plans no may have effect in family courts. TEXAS § It provides as follows: outside this state or outside the county of ofresidence the domiciliary while in UCMJ tled “ABSENCE

? ------Rule AND

ombat Combat Waiver VA (CRSC)? (Defense (Defense ISSUES 20/20/15 ?” What is What ?” (Survivor’s (Survivor’s DFAS HILD SBP Rule ? What is ? What the N CLARIFICATIO Compensation ? What is ? What the 10 Year 10 Year RETIREMENT ARENT-C Y Rule ”? Special Who pays for Who the What problems or What issues are presented elated elated HIGH 3 the procedures the for procedures me to take in order for to accept my application retirement DFAS Benefit Plan)?If Iremarry do I losemy militaryWhat isbenefit?retirement the 20/20/20 does How the servicemember’s is affectWhat my award? retirement concurrent receipt do How they affect my military retire did Why ment award? Service) Finance and Accounting say that decree has my divorce to be clarified in order for me to are What get my award? The clients whatmay ask, portion, if any, of the military am retirement I entitled? “ is What the “ schools? schools? Do children of servicedeployed members experience additional issues brought on by the deployment? MILITAR and, for and, good reason the spouse with the children wants to back move to familiar and more supportive surroundings? Who pays for traveling expenses for visitation purposes? should How expenses be allo if What cated? visitation is overseas? to military children that from move base to state base, to state and country to country? Is there any detriment to their facilities What development? are available to assist them? good How are the DOD N, NG, DRAFTI CALCULATIO NCE, PTA ACCE is stationed in a “Combat Zone”? What is is What stationed Zone”? “Combat in a a combat zone and how can we determine what or where a combat zone is? UNIQUE P though Even the weight of the informa tion and cases appear the to disfavor uprooting of moving, deploy children, ments and relocation is part of the militarycan What culture and existence. military families expect in and a divorce custody when the parties are not original ly from the area where they are stationed; MENT ENFORCE between “Pay” and “Allowance”? Is “Allowance”? and “Pay” between income different when a servicemember R ------AND II AH SUPPORT B and HILD become familiar C AH COLLECTION B OF MUST SUPPORT and be able to advise the Y MIL FA (Basic for Allowance Housing); ) AR 608-99 (Basic Allowance for Subsistence). (Basic for Allowance Subsistence). To properly counsel or advise military To What are What the available to avenues To adequately address the needs ofTo In In advising the military family mem AS /T (RC What significanceWhat is the distinction summer 2010 differences between differences edge concerning military rank, longevity, pay One and must allowances. know what is taxable and non-taxable the income; clients clients concerning child support, one must the have requisite tools and knowl erably less? soon How can that be done? a Will court hearing to be have scheduled? Can it be done before he/she leaves? support obligations when their civilian income was $90,000.00 per year and the income of a mobilized sergeant is consid dren dren are adequately supported financially? mobilized reservists to adjust their child MENT ENFORCE support for military do How families. these agencies partner with the federal in government insuring that military chil the military the client, practitioner must know what other agencies and entities are available to establish and collect child ENT, BLISHM ESTA family family member of the chain of command and the other available when resources situations of this nature occur. vention, to support their family members? to support vention, their family members? The practitioner with financial obligations? What, if any, duty financial ifobligations? What, any, or obligation does the military impose upon servicemembers, absent court inter member member can shirk his financialrespon sibility to his family because there is no court order or agreement establishing his ARMY do you tell him/her ber, that the service these matters in court at this time? REQUIREMENTS AR ( 608-99) transportation and benefits because he his rightsinvokes and claims that his mil itary duties will not allow him to address can he use those rights to defer the pay ment of child support? Can the family be left without adequate support, shelter, Civil Relief Act? If children are involved, Civil Relief IfAct? children are involved, B Hot “Cites” 18 might court child,the the to unknown is that designee a select deployedperson however,person;related a the should be haveto not does designee place. The same the to child the return and child the get and town intocomehave towould person designated town of out Thus,an parent’sother the toresidence. return contemplateand surrenderchild the of residence.usual their to returns person that concludedand is deployment the after ends possession toignee’s right des person. The anyother by child the to accessprohibit or restrict that order the of anyprovisionsto subject are they and non-parent a of duties and rights the has designated person possession,the of times these child. During the accompaniedby be to option the lacks servicemember the where and possible reasonably not is child the toaccess where location a at months (6) six than more of duty mean defines deployment”and “military to month weekend per one beyond session pos the expands amendment est. The child’sinterthe best in is possession the that determine still U.S.must court The the outside deployment of periods ing dur child the of exercisepossession to else someone designates residence) who child’sthe designate toexclusive the right with person a not is (who member service be to soon or member service a of wishes respectively.the honor must court The 1,2007,September or June18,after2005 or on pending SAPCRS foreffective is 1,2007.SeptemberIteffective amended and 2005 in added was that provision state.this of outside located property divide to Court Texasa allow it lawsuit,does the nor of part SAPCR overthe jurisdiction confer not does statute this that note Please (1995). 3.23 CodeAnn. Family Section Tex.predecessorstatute the under decided (Texas407 App. writ) Austin 1977,no See criteria. these MILITAR DURING “POSSESSION entitled is

REPEALED: Please note that the pick up and return and up pick the that note Please § ffective 9/1/09 Effective 153.3161 of the of 153.3161    Y DEPLOY   Source  Foxv. Fox  YMENT T  exas  B 279. SB Family  , 559 S.W.2d,559 ”  . It is a new a is It  Code -  -  - - Military Deployment. Military (b) Not later than the 90th day after the afterday 90th the than Notlater (b) section,this In (a) “conservator”means: Possession § SERVICEMEMBER DEPLOTHE SPECIFICALL NEW parent”. “primary the for in stand to person a designate toparent a allow to deployment of fact the for intend not does Code the Clearly child’sthe residence?decide to right the has parent neither which in case JMC a child’sthe residence. in What happens decide toexclusive the right with parent a to apply not does and exercise to rights parentnon-custodial a allowsprovision child’sinterest.this best Rememberthat the in not is possession such that find well If a conservator petitions the court court the petitions conservator a (c) If 153.3162 a possessory conservator of a child; a of conservator possessory (1) a shall compute the periods of of periods computethe (1) shall posses of periods (1) computethe may award to the conservator the award(2) mayto additional conservator (2) awardthe a of conservator managing joint (2) a ffective 9/1/09 Effective under Subsection (b), the court: (b),the Subsection under to: court the petition mayconservator ment,the deployconservator’s military active concludesthe services armed the of member a is who conservator a date FAMIL or access to the child for a length a for child the toaccess or of possession of periods additional and (b)(1); Subsection by described child the toaccess or possession (1). Subdivision by described periods the compensatefor to child the to accessor of possession of periods conservator’sand deployment; the during entitled been otherwise havewould conservator the which to child the toaccess or of sion child. the residenceof primary the designate toexclusive the right without child or

dditional PeriodsAdditional of Or D MILITARYED Y Y Access PROVISIOCODE NS AFFECTING ADDED 9/1/09 EFFECTIVE After Source onclusion of Conclusion Y

HB 409 HB - - ADDED (d) In making the determination under determination the making In (d) a deployedin was conservator the (a) Subchapter 9/1/09 after or on pending/filed Modification (b) ff. Date:9/1/09 Eff. shall consider: (1) shall court: (c)(2),the Subsection child. the interestof best the in is child the toaccess or of possession and possible;reasonably not was child the toaccess where location In this subchapter: this In 153.701 § Source: the award of additional periods of of periods additional awardof the (b) whether the court provided in provided court the whether (b) or of possession of periods the (a) that: determines court the considersreasonable, if court the terms under and time of (e) After the conservator has exerhas conservator the After(e) con court the factor anyother (c) an order under Section 153.3161 Section underorder an (c)(1); Subsection computedunder conservator’sdeployment,as the during entitled have been otherwise would conservator the which to child the toaccess is not deployed.not is conservator the when applicable order anycourt of terms the by governedare parties affected all of rights section,the this under awardedaccessor possession of periods additional all cised (2) appropriate;and siders and conservator’sthe deployment; during child the of possession exerciseperson limited a that HB 409 . . Military Duty- Military L. Definitions. under Subsection (c)(1). Subsection under computeddeployment,as conservator’sthe during entitled have been wouldtor conserva the which toaccess or possession the equals that child the toaccess or of sion posses of periods additional is not required to awardrequiredto not is

-applies to SAPCR/ to -applies umr 2010 summer

- - - - Hot “Cites”

- - 19 -

- -

  Certain In  onservator Conservator   o Designate o Designate Child For T  Of  Right  . .  isitation isitation V esidence  R  the period that the person has pos session of the child; and section is subject to any provision in a court order restricting or pro hibiting access to the child by any specified individual. section has the right to possession of the child for the periods and in the manner in which the conserva tor without rightthe exclusive to designate the primary ofresidence the child is entitled under the court order in effect immediately before the date the temporary order is rendered; the designated person under this section are subject to the require ments of Section with153.316, the designated person for considered purposes of that section to be the possessory conservator; section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during Exclusive   (4) the designated person under this the child’s other (2) the conservator and child’s (3) the designated person under this order order in effect immediately before the date the temporary order is rendered. must provide that: (1) the designated person under this priate priate to the best ofinterest the child. without rightthe exclusive to desig nate the primary ofresidence the child under Section the 153.703(a)(1), court visitationmay award with the child to a designated person chosen by the conservator with rightthe exclusive to designate the primary ofresidence the child. same as the visitation to which the conservator without rightthe exclusive to designate the primary ofresidence the child was entitled under the court Exercise  o (d) The court may limit or expand the (c) The temporary order for visitation ppointing Designated Person ppointing § 153.704. A Person Designated T (b) The periods of visitation shall be the With With Primary Circumstances (a) If the court appoints the conservator - o ------T - - - Child. Right Of Exclusive esidence R described by Subdivision (1) or the person chosen under Subdivision (2) is not in best the inter child’s another est, person chosen by the court. the exclusive rightthe exclusive to designate the primary ofresidence the child; described by Subdivision (1) is not in a best the interest, child’s designated person chosen by the conservator with rightthe exclusive to designate the primary residence of the child; or onservator With Conservator With ignated person in a temporary order under rendered this section as appro (3) if appointing the conservator temporary under order rendered this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371. rights of a nonparent named as a des duty in the following order of prefer ence: (1) the conservator who does not have (2) if appointing the conservator sive rightsive to designate the primary ofresidence the child is to ordered military militarydeployment, mobili or zation, temporary the military duty, court may render a temporary order to appoint a designated person to rightthe exclusive exercise to designate the primary ofresidence the child dur ing the military militarydeployment, or mobilization, temporary military porary military duty and is concluded, the conservator returns to the conser the usual temporaryresidence, vator’s orders under this section terminate and the rights of all affected parties are by governed the terms of courtany order applicable when the conservator is not to ordered military deployment, military or mobilization, temporary military duty. ment, militaryment, or mobilization, tem Designate Primary Designate ppointing Designated Person § 153.703. Appointing Person Designated For (b) A designated person named in a (c) The court may limit or expand the (a) If the conservator with the exclu (d) After a conservator’s military(d) After a conservator’s deploy ------

. Orders emporary T

child; child; or “Temporary militarymeans “Temporary duty” “Military mobilization” means the “Military mobilization” “Military deployment” means “Militarythe deployment” “Designated person” means the per “Designated person” child (2) child support. designated person to pay child support. child pay to person designated rights to and impose duties on a on des duties impose and to rights child, the regarding person ignated the require not may court the except court under this subchapter may grant may subchapter this under court chapter chapter regarding: (1) possession of or access to the this subchapter. order in a proceeding under this sub exercise the conservator’s rightsthe conservator’s exercise and duties in relation to a either child, con servator may filefor an order under moving a substantial distance from the so residence as to conservator’s materi ally affect ability the to conservator’s deployment, militarydeployment, or mobilization, temporary military duty that involves combat combat mission. to to a usually different location, another for base, a limited time for training or to assist in the performance of a non the transfer of a service member of the armed offorces this state or the States from one United military base extended extended active duty The status. term does not or include Guard National Reserve annual training. call-up of a or Guard National Reserve service member of the armed forces of this state or States the to United port of combat or some other military operation. ber of the armed offorces this state or States the servingUnited in an active- duty status to another location in sup military duty. temporary transfer of a service mem access access with regard to a child during military the conservator’s deployment, military or mobilization, temporary son ordered son by ordered the court to tempo rights, rarilya conservator’s exercise and duties, periods of possession and § 153.702. (4) (3) (2) summer 2010 (c) A temporary order rendered by the the by rendered order A temporary (c) (b) The court may render a temporary (a) If a conservator is to ordered military (1) Hot “Cites” 20 excluthe without conservator the If (a) The temporary order for visitation visitation fororder temporary (b) The Primary Without T DesignatedPerson153.705. Appointing § The court may limit or expand the expand or limit may court (c) The o

Exercise to the best interest of the child. the interestof best the to appropriateas section this under dered renorder temporary a in named son per designated nonparent a of rights this under person designated (1) the that: provide must child. the interestof best the in is visitation conservator,the the if by chosen person designated a to child the with awardmayvisitation court duty, military the temporary zation,or mobili deployment,military military orderedto is child the residenceof primary the designate to siveright child. the interestof best the to appropriateas section this under dered renorder temporary a in named son per designated nonparent a of rights the designated person under this under person designated (4) the this under person designated (3) the child’sand conservator(2) the other  specified individual. specified anyby child the toaccess hibiting pro or restricting order court a in anyprovisionto subject is section and child; the of possession has son per designated the that period the during 153.376(a) Section under conservator possessory nonparent a of duties and rights the has section conservator; possessory the be to section that of purposes consideredfor person designated the 153.316,with Section of ments requirethe to subject are section this under person designated the duty; military temporary mobilization,or deployment,military military to orderednot if entitled be would (a) Subsection by described tor conserva the which in manner the in and periods the for child the of possession to right the has section   R Exclusive esidence  V  isitation   Right Of  For Child  T o Designateo Conservator  . 

  -  ------§ 153.706. T § Support (a) Not later than the 90th day after the afterday 90th the than Notlater (a) Possession Periods§153.709. Additional duty. military temporary mobilization,or deployment,military military orderedto been has who conservator the against enforceable be wouldorder an that extent same the to person designated the against or enforcedby be maysubchapter Temporarythis ordersrenderedunder who conservator the by motion a On (a) Hearing 153.707. Expedited § party.a of obligations support child the modifying order porary tem a justify to circumstancessufficient of change a in resultmaysubchapter this § 153.708. Enforcement § anyparty,by court motion the a (c) On (b) petition the court to: court the petition duty, mayconservator military the temporary mobilization,or military deployment,conservator’s the military concludes services armed the of ber mem a is who child the residenceof primary the designate to siveright excluthe without conservator a date Internet. the teleconferencethroughby or ing means,includ electronic bydence evi testimonypresentand to party a shown,allow cause good for and noticeadvance reasonableshall, after duty. military temporary mobilization,or deployment, military military orderedto been has who conservatorinvolving a not tionship relaparent-child the affecting suits possible,precedencetakeover other hearing. scheduled larly regu a at person in appear to ability conservator’sthe on effect material havea duties conservator’s military the that finds court the if hearing expedited an shown,hold cause good duty,shall,for court military the rary tempomobilization,or ment,military deploy military orderedto been has renderedorderunder temporary A A hearing under this section shall, if shall,if section this under hearing A .

Or emporary emporary Access. Order . For . Of Child ------

- - - In making the determination under determination the making (c) In of periods additional awardof (b) the If the conservator described by described conservator the (b) If the conservator was on military military on was conservator (a) the shall compute the periods of of periods computethe (1) shall court: (a),the Subsection under court the petitions (a) Subsection shall consider: (1) shall court: (b)(2),the Subsection child. the interestof best the in is child the toaccess or of possession and possible; sonably rea not was child the toaccess where location a in duty military temporary mobilization,or deployment, military may award to the conservator the award(2) mayto additional conservator (2) awardthe is not required to award additional requiredto not (2) is compute the periods of posses of periods (1) computethe the periods of possession of or of possession of periods (a) the considers reasonable, if the court court the considersreasonable, if court the terms under and time of length a for child the toaccess or of possession of periods additional and (a)(1); Subsection by described child the toaccess or possession (1). Subdivision by described periods the compensatefor to child the to accessor of possession of periods conservator’sand deployment; the during entitled been otherwise havewould conservator the which to child the toaccess or of sion servator would have been entitled entitled have been would servator con the which toaccess or sion posses the equals that child the to access or of possession of periods that: determines any other factor the court con court the factor (c) anyother a named court the (b) whether siders appropriate;and siders conservator’sand deployment; the during child the of session exercisepos to limited 153.705 Section under person designated (b)(1); Subsection computedunder duty, military as temporary or mobilization, ment,military deployconservator’s military the during entitled have been otherwise would conservator the which to child the toaccess umr 2010 summer ------Hot “Cites”

- 21 ------

  ORDER YMENT” esidence Order - Exclusive

R OF  Of Of   Y DEPLO & SB 279 applies applies only to applies applies only to suits 

ne Year One Year    Modification Modification

HB 1012 SB 279 & HB 1012   ON MILITAR o Determine Primary residence ofresidence the child has volun tarily relinquished the primary care and possession of the child to another person for at least six months. T   hild Within Child Within a person who has rightthe exclusive to designate the primary residence of the child and who has temporar ily relinquished the primary care and possession of the child to another per son during militarythe conservator’s militarydeployment, mobilization, or temporary as militarythose duty, terms are definedby Section 153.701. Source: a conservator who has the exclusive right to designate the primary resi dence of the child and who has tem porarily relinquished the primary care and possession of the child to another person during mili the conservator’s tary militarydeployment, mobiliza or tion, temporary as military duty, those terms are definedby Section 153.701. Source: ff. Date: Eff. 9/1/09- Date: ff. Date: Eff. 9/1/09- Date:  D ASE N 156.105 “MODIFICATIO Subsection (b) Subsection (a)(3) does not apply to 2007. It 2007. provides that in deployment, and of is itself, a material and substantial change of circumstance sufficientfor a modifying order regarding possession or access to a Ifchild. the court finds that modification is in the bestof interest the the child, court may modify to pro vide for the possession found in Section § 156.102(d). SAPCR pending on or filedon or after 9/1/09 § is also a new provision that applies to suits pending or filedJune after 18, 2005 and the amended provisions apply to cases pending or filedJune after 15, for for modificationon or filed on or after 9/1/09 B Right Of ADDED (d) Subsection (b)(3) does not apply to ------] - ] - filed with AMENDED/ [ , in , writing, ED Orders-ADD [ Conservatorship applies applies only to applies only to or Modification For Modification Access.

in chambers as provided emporary And expressed expressed to T

SB 279 Grounds Establishing order; order; or mediated or collaborative law settlement agreement on which the order is based;

. (b) the date of the signing of a and has the court by Section 153.009 conservator, or other party conservator, affected by the materially order have and substantially changed since the earlier of: (a) the date of the rendition of the sive rightsive to designate the primary the name of the person who is the to the have preference exclu child’s rightsive to designate the primary ofresidence the child; or Order (2) the child is at least 12 years of age ff. Date: Eff. 9/1/09- Date: (3) the conservator who has the exclu conservator conservator of a that child, provides the terms and conditions of conserva or that provides torship, for the pos session of or access to a child if modi ficationwould be in the best interest of the child and: (1) the circumstances of the a child, provides provides for the appointment of a 153.701. Source: a conservator who has the exclusive right to designate the primary resi dence of the child and who has tem porarily relinquished the primary care and possession of the child to another person during mili the conservator’s tary militarydeployment, mobiliza or tion, temporary as military duty, those terms are definedby Section ff. Date: Eff. 9/1/09- Date: The court may modify an order that Of SAPCR pending on or filedon or after 9/1/09 § 156.101 Or Possession (a) 9/1/09 § 156.006(c). ADDED SAPCR pending on or filedon or after Subsection (c) Subsection (b)(2) does not apply to - - - - - ] the - ] ]; ]; or and the filed with [ in writing Orders- [ applies applies only to

: in chambers as provided emporary expressed expressed to T

]. HB 1151 SB 279 After After the conservator described tor tor is not to ordered military militarydeployment, mobiliza or tion, temporary military duty. by by Subsection (a) has exercised all additional periods of posses sion or under access awarded this the section, rights of all affected parties are governed by the terms of the court order applicable when the conserva and the temporary order is in the residence ofresidence the child [ temporary order designating that person is in the best ofinterest the child and has the court by Section 153.009 the name of the person who is the to the have preference exclu child’s rightsive to designate the primary order order has voluntarily relinquished the primary care and possession of the child for more than six months [ best ofinterest the child child’s present circumstances would child’s significantly impair thechild’s health physical or emotional devel opment; during the conservator’s during militarythe conservator’s militarydeployment, mobiliza or tion, temporary as military duty, under computed Subsection (b)(1). (d) While a While suit for modification is Source: Source: (3) the child is 12 years of age or older (2) the person designated in the final temporary order is in the best interest of the child and person person who has rightthe exclusive to designate the primary ofresidence the child under the finalorder unless pending, pending, the court may not render a temporary order that has the effect of changing the designation of the ff. Date: Eff. 9/1/09- Date: (1) the order is necessary because the 156.006(b).

summer 2010 § SAPCR pending on or filedon or after 9/1/09 AMENDED (b) 153.3161(REPEALED). May the court SAPCR pending on or filed on or after (i) the murder of the other parent of order more than just those mentioned 9/1/09 the child under Section 19.02 or in §153.3161(REPEALED)? Why does this 19.03, Penal Code, or under a law provision discuss access when the related Subchapter E – Modification Of Child of another state, federal law, the section does not? Most likely, this is just a Support law of a foreign country, or the section that addresses the burden of proof Uniform Code of Military Justice

Hot “Cites” in such cases by stating that the deploy- § 156.410. Change In Circumstances that contains elements that are sub- ment alone will meet the first prong Resulting From Military Service - stantially similar to the elements of of the modification burden with the REPEALED an offense under Section 19.02 or deploying parent still having the burden Source: HB 1012 19.03, Penal Code; of proving best interest. This provision Eff. Date: 9/1/09 (ii) criminal attempt under Section contains the same definition of “military 15.01, Penal Code, or under a law deployment” as stated above. §156.410 “CHANGE IN of another state, federal law, the CIRCUMSTANCES RESULTING FROM law of a foreign country, or the § 156.105. Modification Of Order Based MILITARY SERVICE”REPEALED was Uniform Code of Military Justice On Military Duty [DEPLOYMENT]- enacted in 2003 and amended in 2005. that contains elements that are AMENDED It ties into Section 156.401 regarding substantially similar to the elements [(a) In this section, “military deploy- grounds for modifying child support. It of an offense under Section 15.01, ment” means military duty ordered for provides that the call up into active mili- Penal Code, to commit the offense a period of more than six months dur- tary service is a material and substantial described by Subparagraph (i); or ing which the person ordered to duty: change in circumstances provided that (iii) criminal solicitation under [(1) is not provided the option of the active service is for at least 30 con- Section 15.03, Penal Code, or under being accompanied by the person’s secutive days and it results in a decrease a law of another state, federal law, child; and of the net resources of the obligor during the law of a foreign country, or the [(2) is serving in a location where the service. Such a modification motion Uniform Code of Military Justice access to the person’s child is not has unique procedural requirements to that contains elements that are reasonably possible. include that the obligor’s commanding substantially similar to the ele- [(b)] The military duty of a conservator officer must provide an affidavit that ments of an offense under Section who is ordered to military deploy- states the start and end date of the service 15.03, Penal Code, of the offense ment, military mobilization, or tem- and the anticipated monthly gross income described by Subparagraph (i); porary military duty, as those terms from the service. Return from service is Source: SB 1838 are defined by Section 153.701, does a material and substantial change should Eff. Date: 9/1/09-applies only to not by itself constitute [of a person the obligee later file a motion to modify SAPCR filed on or after 9/1/09 who is a possessory conservator or a if the court previously modified the sup- joint managing conservator without port order. Clearly, this contemplates an KNOW YOUR RESOURCES the exclusive right to designate the almost automatic reduction and later The military has a plethora of individu- primary residence of the child is] a increase of support should the military als, entities and agencies that are available material and substantial change of cir- service result in a downward change of to assist the servicemembers and their cumstances sufficient to justify a mod- income for the obligor. Please note that families in crises. Often many situations ification of an existing court order or it only applies one way- to a decrease in can be resolved without resorting to the portion of a decree that sets the terms net resources. This does not mean that a judicial system. It is imperative that the and conditions for the possession of or modification to increase support is not Family Law Practitioner have available the access to a child except that the court warranted, only that the regular modifica- resources to which he can refer the mili- may render a temporary order under tion provisions of Section 156.401 would tary client. The resources include but are Subchapter L, Chapter 153. apply to such a case. not limited to the following: [(c) If the court determines that modi- 1. The servicemember’s Chain of fication is in the best interest of the CHAPTER 161 – TERMINATION OF Command. child, the court may modify the order THE PARENT-CHILD RELATIONSHIP 2. The Post Legal Assistance Office (SJA) or decree to provide in a manner con- § 161.001. Involuntary Termination Of 3. Claims (SJA) sistent with Section 153.3161 for pos- Parent-Child Relationship - AMENDED 4. Trial Defense Service session of the child during the period The court may order termination of 5. The Unit Chaplain of the militar the parent-child relationship if the court 6. The Inspector General Source: SB 279 finds by clear and convincing evidence: 7. AER (Army Emergency Relief) Eff. Date: 9/1/09-applies only to (T) been convicted of: 8. Family Advocacy

22    summer 2010 9. Finance regard. See www.miltary.com/benefits/ do so with professionalism, courtesy, Hot “Cites” 10. Housing resources/family-support/family-care . efficiency, specialized knowledge, empa- 11. Transportation While the military encourages the prepa- thy and patience. The effective interview 12. TRICARE ration of a family care plan, there can be and counseling of military clients include 13. Red Cross some confusion about the non-binding obtaining pertinent and unique facts, giv- 14. Mental Health nature of such plans in litigation. The ing accurate, authoritative information, 15. CID/MPs military’s requirement that a service mem- knowing the law and applicable regula- 16. Armed Forces YMCA ber complete a family care plan is in no tions; articulating in a balanced manner 17. ACS (Army Community Services) way determinative of what a family court the positive and negative aspects of the 18. Veterans Administration will do in any given case. Sometimes the issues and, if necessary, referring the case Off Post service member and his/her family need to to someone else capable of handling such 1. State Attorney General be educated about this and they may act matters. 2. Child Protective Services under the false assumption that if a matter Handouts can save time; answer the 3. County Attorney is addressed in the military’s family care frequently asked questions; educate you 4. District Attorney plan that is sufficient for the court and and the client; cover the bases; reduce 5. Military Related Websites the court should just accept the plan. This mistakes, grievances and misunderstand- plan may indeed control until such a time ings. FAMILY CARE PLAN as a court is able to rule. Clearly, the plan Additionally, it is recommended that Much information is available on the web serves an important function for shorter practitioners use email and other forms for service members and their families to absences by the service member. But it of electronic communication for updates assist them in all aspects of military life. cannot deprive a court that has jurisdic- to clients and for follow ups. Using and Websites with useful information for mil- tion over the children from entering knowing about authorized websites as itary families about such things as plan- appropriate court orders. information tools accomplishes the same ning for deployment, personal finance, Another resource to the service positive results as stated previously. relocation, counseling and the like include member and family is the FAMILY Finally, as evidenced by the number of the following: www.military.com/spouse/ READINESS GROUP or FRG. This is an new provisions of family law directed spe- fs/ and www.militarychild.org. officially command-sponsored organiza- cifically to the military who are in harms One topic that is frequently mentioned tion of family members, volunteers, sol- way, the Texas legislature is keenly aware in the discussions of deployment and diers and civilian employees that belong that the current state of family law was deployment readiness is the Family Care to a unit. It is designed to assist the unit unmindful of the culture, nuances and Plan. commander, the soldier and the family unique situations that exist to the service- It is suggested that service members members. Each group is designed to pro- members and their families as a result of have developed family care plans whether mote soldier readiness, and at the same serving in a Combat Zone. or not they expect to be deployed. These time strengthen families. plans are intended to address time periods Donald L. Williams is an attorney- for drills, annual training, mobilization CONCLUSION mediator & counselor at law and Visiting and deployment. A site at military.com Each practitioner serving the military cli- Associate Judge of the 171st Judicial District benefits has useful suggestions in this ent in family law related matters should Court in El Paso

HURRY!! GET THOSE MEMBERSHIP RENEWALS IN THE MAIL

The second (2nd) notice of the 2010–2011 Membership Renewal for the Paralegal Division (PD) was mailed to all members whose membership dues were not paid as of June 1, 2010. The deadline to receive membership dues is August 31, 2010 (must be postmarked as of this date). Any membership renewal form that is not received (or postmarked) by August 31 will be returned to you and a new application will be required to be completed in order to continue your membership in the Paralegal Division of the State Bar of Texas.

And while you are thinking of the Paralegal Division, please Edit My Profile by accessing the Members-Only area/Directory of the PD Website at www.txpd.org to include the areas of law in which you work!!!

summer 2010    23 Of course, paralegals should not post anything to a social networking site that is confidential. Correspondence such as cease and desist letters and the like may be posted Scruples by opposing parties to their websites or social networking sites. That possibil- ity should be taken into account when deciding how to communicate with an The Ethics of Technology opposing party and when drafting correspondence.

Ellen Lockwood, ACP, RP Voice Mail Although voice mail is another wonderful aralegals should Calendaring/Docketing convenience, it is not without potential stay current While electronic docketing risks: Pon technology. and calendaring systems are There are the standard online wonderful tools and do a great • Be sure to identify yourself as a parale- research services of Westlaw job of counting dates and in gal. and Lexis/Nexis, which you some cases, applying rules to • Don’t say anything in a voice mail you have probably used for years, calculate future deadlines, the wouldn’t want posted on a freeway but these companies are con- information is only as accurate billboard or on the Internet. stantly updating and expand- as the original data entered into • Remember that others can probably ing not only their information, but the them. Regardless of who is responsible access your voice mail without your ways it can be searched and the costs for for calendaring or docketing deadlines, knowledge, listening to, forwarding, research. A good paralegal knows the best someone should at least spot-check that and deleting messages. and most efficient ways to find informa- the deadlines were entered correctly. • If you have something confidential to tion, and the cost comparison of each Everyone can make an error and it is bet- say, leave a message asking that person method, or at least knows how to get ter to catch it early than to miss a dead- to call you back. this information quickly when required. line. • Many law firms and corporations Keeping up with the best ways to find automatically generate a an audio file information on the World Wide Web Cell Phones and Cameras of all voice mails so anything you say is also a constant challenge. Many legal Cell phones are a wonderful convenience may be easily preserved periodicals now devote at least a small but conversations are easily overhead. space in each issue to listings of helpful Paralegals should be aware of who may Email web sites. be able to overhear a conversation. It’s Most of us rely on email for the New software is constantly being a good idea to use a code phrase or majority of communications with released, including updated versions of shorthand if you must convey confi- coworkers, vendors, clients, witnesses, programs you already use, such as word dential information in a public place. and opposing counsel. However, email processing programs, spreadsheets, Additionally, most cell phones now has its own potential ethical issues. There schedulers, database programs, and litiga- include cameras. Others may easily take are a few general rules: tion management programs. To be able photos or videos of documents as well as to evaluate whether these programs and attorneys, witnesses, and other informa- • E-mail messages are backed up each upgrades are useful, you must use them tion. night when your computer system is and/or find out about their features. backed up, so even deleted e-mails can Many software vendors offer online dem- Social Networks be retrieved. onstrations and there are often articles on Paralegals should work with their attor- • Identify yourself as a paralegal in busi- software in legal periodicals. neys to remind clients and witnesses that ness e-mails. Keep up with Internet search tech- anything posted on social networks may • Write with the same level of formality niques. The best websites and search be viewed by opposing parties and oppos- as with other business communica- methods are constantly changing. It is our ing counsel. Recently, a man was sued tions. responsibility to do things as efficiently for libel for a Twitter posting regarding a • Print e-mails to include in the file if and cost-effectively as possible, without moldy apartment. The safest thing to do that information would have normally sacrificing quality. is to keep social networking sites private. been put in a memo or letter.

24    summer 2010 • Do not copy clients on emails to signature pages, not just the signature The digital age is an exciting time, but experts and opposing counsel. page. It can be a PDF or a hard copy, but be sure not let electronic conveniences Forward the email to clients to avoid it should be clear which version of the override your ethical responsibilities. clients accidentally hitting “reply all.” document was signed. As an extra pre- Email Attachments caution, have all parties initial each page. Ellen Lockwood, ACP, RP, is the Chair Take the time to be sure you are send- That could be helpful in verifying which of the Professional Ethics Committee of the ing correct version of the document at document the parties intended to sign. Paralegal Division and a past President issue, and that the attorney and client are of the Division. She is a frequent speaker revising, commenting on, and ultimately Communications via Email with on paralegal ethics and intellectual prop- signing correct version. If appropriate, Opposing Counsel erty and the lead author of the Division’s covert the document to a PDF or remove Do not assume that emails with urgent Paralegal Ethics Handbook published by the metadata using a tool such as the one info, such as the need to cancel or post- West Legalworks. You may follow her on available with Word 2007. Although not pone depositions, etc., will be read and Twitter @paralegalethics and her blog at all metadata will be removed, it is better voice mails will be heard. And despite http://paralegal-ethics.blogspot.com. She than leaving in all revisions. the ease with which cancellations may may be contacted at [email protected]. Once the document is finalized, be made, attorneys and parties must still exchange full copies of the document and have a defensible reason for doing so.

Pro Bono Contest Winners Announced

Last fall, the State Bar’s Paralegal Division along Lyla Malolepszy has been employed with the Law with Texas Lawyers Care jointly sponsored a Office of Donald Johnston in Sherman for 7 years contest for members of the Division who either and she has been a volunteer paralegal with Legal joined the State Bar’s Pro Bono College or reported Aid of NorthWest Texas for 10 years. Lyla has their pro bono hours. Winners would receive been a member of the State Bar of Texas Pro Bono free registration to the 2010 State Bar of Texas College since 2004. Annual Meeting to be held on June 10–11 in Fort Worth. Paralegals Cynthia Worthington and Lyla Membership in the Pro Bono College is free Malolepszy were selected as the winners of the for a paralegal who performs 50 hours a year of contest. In addition to receiving free registration to pro bono service utilizing their paralegal skills the State Bar’s Annual Meeting (a $300 value), both for pro bono legal matters. Benefits of the Pro Cynthia and Lyla were recognized for their pro Bono College include a certificate signed by the bono efforts at the Paralegal Division’s luncheon on Chief Justice of the Supreme Court and State Bar June 11. President, a complimentary subscription to the monthly LegalFront e-newsletter and recognition The State Bar is grateful for the contributions of at the State Bar of Texas Annual Meeting. More paralegals, particularly in the areas of access to jus- importantly, paralegals performing pro bono work tice. Paralegals are encouraged to report their pro have the satisfaction of knowing that they have bono hours at the Paralegal Division’s website at used their professional expertise to assist indigent www.txpd.org, and click on the Members Only-tab. clients who otherwise would have been denied justice. Employed with Murray Pelletier in Dallas for 14 years, Cynthia Worthington has volunteered for Congratulations to both Cynthia and Lyla. Legal Aid of NorthWest Texas since January 2009.

summer 2010    25 The Rain in Spain . . . Fell Mainly in Barcelona By Debra Crosby

n April, I went to Spain for the first time, on the Division-spon- Isored annual trip with a bunch of really friendly people, some of whom I had never met, some of whom I knew well. And what a trip it was! We arrived in Sevilla, a charming, historic city on the banks of the Guadalquivir River, on Saturday, April 24. We did our best to ignore our nagging jet lag as we walked happily around the narrow streets of the historic district, where our hotel was located. We wandered around the lovely city, which was finish- ing up its annual April fair. The streets were filled with women wearing gorgeous flamenco dresses, and carrying their ever- present fans. What a romantic and festive atmosphere! We had dinner together that evening with our local tour guide, Nieves, a vivacious and knowledgeable Spanish woman who was always willing to go the extra mile for us, no matter what we asked of her. After sleeping late on Sunday, we went out on a guided tour of the city, which included the city’s gothic cathedral, reportedly the world’s largest, as well as the royal palace, formerly a Moorish alcazar, or fortress, that was converted, as was the cathedral, into Christian use once the Catholics, under Ferdinand and Isabella, wrested Spain from over 700 years of Moorish control. It was fascinating how the Muslim architecture was re- modeled into churches and palaces, and yet the ornate Moorish touches remain as beautiful embellishment to the Christian architecture. On Monday, we traveled to Granada, ued water and considered it to be a pre- north, from where the enemy would (and home of the fabulous Alhambra, formerly cious gift to be offered to guests. I have eventually did) come. The Sierra Nevada a Moorish palace and fortress. The gar- wanted to visit the Alhambra since I was a mountain range looms over Granada as dens of the Generalife are a part of this girl and first learned of it in Spanish class. well, providing breathtaking scenery to property and are lush, filled with trees I was not disappointed. stun even the most jaded visitor. and flowers, and with water, in the form Alhambra sits high on a hill over- We had lunch outdoors at a café near- of fountains, everywhere. The Moors val- looking Granada, the view being to the by and enjoyed the perfect weather.

26    summer 2010 We even sneaked in a little shopping. Granada is a lovely European city, bustling and busy, yet beautiful and historic, its wide boulevards lined with trees and flowers. The next day we were free to wander Sevilla at our leisure, and we explored the cobblestone streets, enjoyed the food at the wonderful (and ubiquitous) tapas bars, and shopped for postcards and gifts for friends and family at home. That evening, we attended a performance at El Patio Sevillano, by a local flamenco troupe. I never knew that flamenco includes not only dancing, but also singing and music. Flamenco is a very emotional experience. You didn’t need to understand Spanish to get the message, told in song and dance, of tortured romance and world weariness. Someone asked me if I understood what the female dancer was singing about, and I replied that I didn’t understand all the words, but I was certain that it probably had something to do with a man – one she wished were dead, or one she’d like to kill. It was an evening of incredible artistry, beautiful dancing and stirring music. The next day we headed for Cordoba, where we visited the place that was my personal favorite – the Mezquita, or mosque, which is now a Catholic cathedral. This structure was built (and added onto) by Romans, Moors and Catholics. Once an enormous mosque, with hundreds of columns decorated with Moorish arches, the building was converted by the Catholics into a church – but the basic structure of the mosque remains, sur- rounding the church completely. The church was built literally in the middle of the mosque. Even the con- After the tour of the mosque, we visit- window boxes filled with blooming flow- quering Catholics seemed to have had a ed the Alcazar de los Reyes Cristanos, one ers. respect for the incredible architecture of of the hubs of the Inquisition, but with Our next full day excursion was to the the building they took over. In fact, when yet another astoundingly vast and beauti- coastal city of Cadiz, which lays claim Ferdinand saw the church, he admon- ful garden, and the Juderia, the medieval to Ferdinand Magellan and Amerigo ished the archbishop who supervised the district once home to Cordoba’s Jewish Vespucci, two great world explorers. construction, saying, “You have destroyed community. There remains a very small The city of Cadiz looks very much like what was unique in the world.” It is an synagogue, the last remaining trace of the Havana, so they say, and is a beautiful amazing place, steeped in history and Jews who once lived there. The Juderia place to visit. I could see myself lingering architectural beauty, from the Muslim remains as an historic district in Cordoba, at one of the hotels there on the beach. high altar to the sheer size and beauty of with winding, narrow streets and ancient Cadiz is a place to roam, explore and its halls. This is a place not to be missed buildings. The lovely Avenida de Flores relax, and also has an enormous cathedral in any tour of Spain. was one of my favorite streets, lined with and a bustling market place.

summer 2010    27 summers. The landscapes are dotted with such villages, picturesque places each with a charm of its own. We returned to Sevilla for a fantastic tapas lunch, wandered the city at will in the afternoon, and then had a farewell dinner that night. After the group left the following morning, Norma Hackler, Rhonda Brashears and I set off for Barcelona, to extend our trip for a few days and to visit that fabulous city. We weren’t disappointed, except for the fact that we could have stayed longer! Barcelona sits on the coast of the Mediterranean Sea. It looks like Paris, with wide boulevards, lovely parks and trees. We explored the architecture of Gaudi, which is everywhere, culminating in a visit in the rain to his life’s work, La Segrada Familia, the enormous cathedral that has been a work in progress since the late 1800s. Even though rain fell all during our last day in Barcelona, that didn’t stop us from walking around the city, soaking (literally and figuratively) in as much as we could while we were there. We visited Las Ramblas, a famous street also designed for pedestrians, surrounded by small side streets filled with shops and cafes, beckoning all who pass by to linger for awhile longer. Maybe that rainy day made that coffee we stopped for taste all the better. Alas, we had to leave the next day for a whirlwind trip to Madrid, where we spent 24 hours before flying back home. One thing I learned about Spain is that I’d like to go back and see more of it. It is a fascinating country, beautiful and diverse, with so much more to see and do than we could see and do in a week’s time. But isn’t that the best way to end a trip – wanting more? Debra Crosby is a freelance paralegal We then traveled to Jerez, home of On the following day we set out for in Austin. She is a Charter Member of Spain’s sherry industry. We had a sherry Carmona, yet another charming and the Paralegal Division, past President of tasting with tapas. While I learned that historic Andalucian city. Also the home the Paralegal Division, former Paralegal sherry is not my cup of tea, so to speak, of a Moorish alcazar, Carmona sits on Division Director and Committee Chair. I did buy a bottle of the excellent vinegar a hillside where you can view the sur- [In 2011, the Paralegal Division is that they also manufacture there. If you rounding area and look out over the sponsoring a trip to Germany. For stand in the rooms where the wood bar- lovely “white” city. Andalucia’s cities are detailed information on the 2011 Germany rels hold the aging sherry and vinegar, often white stucco with tiled roofs, to trip, please go to www.txpd.org under the you can breathe the rich aromas of the keep their occupants cool in the warm News category on the home page.] fermenting liquids. A feast for the senses.

28    summer 2010 Hollerbach 2010 #1 Tex.Parale.Jour:Mag.Full Page Ad 6/15/10 9:47 AM Page 1

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30    july 2010