Summer 2020 the Appellate Advocate State Bar of Texas Appellate Section Report Vol

The Appellate Advocate State Bar of Texas Appellate Section Report Articles The 2019 Texas Legislature and Appellate Practice: Laws Enacted and Proposed Elizabeth Lee Thompson Social Media Use and Appellate Practice: Avoiding Ethical Pitfalls John G. Browning Special Feature Appellate Section Oral History Project: The Honorable Margaret Mirabal Interviewed by Justice Tim Taft Transcribed by Shannon Irion Morris Volume 31, Number 2 Summer 2020 The Appellate Advocate State Bar of Texas Appellate Section Report Vol. 31, No. 2 · Summer 2020 Chair’s Report Kent Rutter ..................................................................................239 The 2019 Texas Legislature and Appellate Practice: Laws Enacted and Proposed Elizabeth Lee Thompson ...............................................................244 Social Media Use and Appellate Practice: Avoiding Ethical Pitfalls John G. Browning ........................................................................254 Juidical Selection Report .........................................................262 Appellate Rules Subcommittee’s Report on TRAP Survey Results to the State Bar of Texas Appellate Section Officer’s Council .......................................264 Appellate Section Oral History Project: The Honorable Margaret Mirabal Interviewed by Justice Tim Taft Transcribed by Shannon Irion Morris ............................................ 275 Appellate Section’s 2020 Excellence in Appellate Advocacy Award Susannah E. Prucka .....................................................................283 United States Supreme Court Update Matthew Frederick, Andrew Guthrie, Taylor Whitlow Hoang, & Ryan Paulson .......................................293 THE APPELLATE ADVOCATE II Fifth Circuit Update Natasha Breaux, Ryan Gardner, & Ryan Philip Pitts .....................338 Texas Supreme Court Update Wes Dutton, Jason N. Jordan, Chris Knight, & Patrice Pujol ........349 Texas Courts of Appeals Update Andrew B. Bender ........................................................................450 Texas Court of Criminal Appeals Update John R. Messinger ........................................................................456 THE APPELLATE ADVOCATE III The State Bar of Texas Appellate Section 2019-20 Officers 2019-20 Council Chair Terms Expiring 2020: Kent Rutter Perry Cockerell Haynes Boone Jackie Stroh [email protected] Audrey Vicknair Chair-Elect Terms Expiring 2021: Jerry Bullard Hon. Gina Benavides Adams, Lynch & Loftin Rich Phillips [email protected] Tom Leatherbury Vice-Chair Terms Expiring 2022: Dylan Drummond Jason Boatright Gray Reed Rachel Ekery [email protected] Raffi Melkonian Treasurer State Bar Board Advisor Lisa Hobbs Bob McKnight Kuhn Hobbs Supreme Court Liaison [email protected] Hon. Brett Busby Secretary Editors Kirsten Castaneda Jody S. Sanders [email protected] [email protected] Immediate Past Chair Jason Boatright Justice Brett Busby [email protected] Dana Livingston Second Past Chair [email protected] Mike Truesdale Kristen Vander-Plas LaFreniere [email protected] Associate Editors Steve Barrick Brent Rubin Hayley Ellison Copyright © 2020 Appellate Section, State Bar of Texas. All Rights Reserved. Email: [email protected] Website: www.tex-app.org Twitter: @AppAdvoc THE APPELLATE ADVOCATE IV Chair’s Report Kent Rutter, Haynes and Boone, LLP, Houston As the Appellate Section’s annual meeting approaches and my year as Chair draws to a close, one thing is clear—this wasn’t the year any of us signed up for. We made big plans, and a pandemic threw everything into disarray. And yet, I am pleased—and frankly, somewhat astonished— to report that through it all, the Appellate Section accomplished as much this year as ever before. The credit goes to our tenacious team of officers, council members, and committee chairs. Their energy, creativity, and perseverance proved to be unstoppable. It helped that we got off to a strong start. We held live events in locales spanning 800 miles across our great state, from El Paso to Beaumont, with Austin, Houston, and Tyler in between. Among these events were our popular “Coffee with the Courts” socials, organized by Chief Justice Sandee Marion and former Justice Jason Boatright. When the pandemic hit, our CLE programming did not go on hiatus, but instead moved online. Steve Hayes, working with Marla Broadus and Audrey Vicknair, posted hour after hour of high-quality CLE videos to our website, where members can view them and obtain MCLE credit for free. Credit also goes to Tom Leatherbury and Lucy Forbes, whose committee worked with local bar organizations across Texas to provide live and virtual CLE programming, much of which was recorded and made available to our members online. Meanwhile, April Farris and Steve Knight updated our online library of CLE papers, which contains hundreds of articles covering every appellate subject there is. Also featured on our website—which is capably maintained by Bill Little, Will Peterson, Rich Phillips, and Natasha Breaux— are scores of interviews with former appellate justices. The stories they tell are fascinating and help us put into context the challenges of the present moment. Fortunately, JoAnn Storey, Perry Cockerell, Andrew Johnson, and Thomas Allen were THE APPELLATE ADVOCATE 239 able to conduct many interviews before the pandemic struck. Since then, they have been editing and posting these videos for all to enjoy. The interviews are also published here, in the Appellate Advocate. In this issue you will also find our survey regarding the Texas Rules of Appellate Procedure, conducted by former Justice Bob Pemberton. The quality of the Appellate Advocate is second to none, thanks to our managing editors: Jody Sanders, Jason Boatright, Kristen LaFreniere, and Dana Livingston. Neither a pandemic nor a ransomware attack impeded our pro bono efforts, led by Rachel Ekery and carried out by a dedicated crew of volunteer lawyers. And certainly, there was no dampening the passionate views that Appellate Section members hold on the subject of appellate judicial selection. This spring, 546 members completed an online survey regarding methods of selecting Texas appellate judges, with 167 members additionally providing written comments. It was my privilege to present the survey results to the Texas Commission on Judicial Selection, which will make recommendations to the Legislature by the end of the calendar year. Looking ahead, course directors Scott Rothenberg and Judge Tanya Garrison have assembled exceptionally strong lineups of speakers for the Advanced Appellate and Appellate 101 courses, which will be held online. I am grateful for the technology that makes this possible. But I will miss the conversations that happen in the foyer outside the ballroom (even when they draw noise complaints), in the hallways, at dinner, and late into the night at the Four Seasons bar. This would have been my 25th consecutive year in attendance. To be honest, these opportunities for conversation are the main reason I never stay home. This year, I imagine, many of the conversations would have centered on diversity. Please allow me a moment to touch on that issue here. As in a brief, the place to start is with the facts. Among the population of Texas, people of color represent 61%, and African- Americans represent 13%. Among Texas lawyers, people of THE APPELLATE ADVOCATE 240 color represent 29%, and African-Americans represent 5%. Among members of the Appellate Section, people of color represent 12%, and African-Americans represent 2%. Put another way, it’s not just that people of color are underrepresented in the legal profession by a factor of more than two to one. Equally troubling is that attorneys of color are underrepresented in the Appellate Section, likewise by a factor of more than two to one. It will take time—and more importantly, effort—before everyone, regardless of background, has an equal opportunity to participate in appellate practice. One obvious step we can take is to engage minority law students in conversation about our practices and welcome them to join us. Toward that end, in February the Appellate Section presented a forum at Thurgood Marshall School of Law. Students packed a lecture hall to hear Justice Gina Benavides, former Justice Jennifer Caughey, former Justice Dale Wainwright, and Joseph Vale discuss opportunities in appellate practice. The event was organized by our Diversity Committee, led by Justice Benavides and Kirsten Castañeda, and our Law School Liaison Committee, led by Suzy Prucka, Jennifer Caughey, and Chris Dove. On this front and others, you can expect that the Appellate Section will do much more in the year to come. Our 2020-2021 Chair, Jerry Bullard, has been instrumental to the leadership of the Appellate Section for many years, and I can’t thank him enough for his advice, support, and friendship. In the meantime, please stay in touch with your friends and colleagues in the appellate community. The conversation never stops on Facebook and Twitter, where Lucy Forbes and Raffi Melkonian post the latest news. Looking back on the year, we have much to be proud of. That could be said every year, of course, but this year it is true in an entirely new way. For that, I offer my sincere thanks to the leaders and members of the Appellate Section. Through all the challenges we have faced together, it has been an honor and privilege to serve as your Chair. THE APPELLATE ADVOCATE 241 Disclaimer Contributions to the

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