Amanda Jester Finds Success as a Healthcare Lawyer in the Austin Office of Waller Lansden Dortch & Davis

An integral member of Waller Lansden Dortch & Davis, LLP’s expansive national healthcare department, Amanda Jester seemed destined for a successful career in healthcare law from the moment she received her J.D. from the University of Chicago Law School in 2003.

Shortly thereafter, Jester went to work for a law firm in Washington D.C., where her grasp of the regulatory aspects of healthcare law turned heads.Jester-Amanda-K-mobile

Ten years later, she has developed a legal expertise around guiding investors, owners and operators in mergers, acquisitions, dispositions, joint ventures, contracting and compliance issues.  Her work has earned her recognition in the prestigious Chambers USA as well as caught our eye as a worthy subject for an interview.

Question: How would you describe your practice?

Answer: My practice is focused on the healthcare industry.  I structure and execute transactions in the healthcare industry in order to maintain compliance with applicable federal and state regulations and to achieve operational efficiencies.

Q: What do you like most about this area of law?

A: I enjoy navigating the dynamics between the various players in the industry.  Doctors, hospitals, payers and, of course, patients, all play different but integral roles.  I also love shepherding a transaction to close where the sellers are reaping the rewards of their lives’ work.

Q: How is this area of law changing?

A: Healthcare law is in constant flux.  Federal and state laws are changing to eliminate fraud and waste, and maximize access to and quality of care.  State laws that regulate licensed professionals and facilities are also changing to accommodate and regulate new methods of healthcare delivery and technology.

Q: Is there anyone you would like to single out, who has positively influence your path in the law?

A: My partner, Brent Hill, has been a great mentor to me.  He is not only an excellent lawyer, but also understands the business of law.

Austin Attorneys Write for Inside Counsel Magazine

Drew McEwen and Kevin Oldham, who both serve as senior counsel for Dykema’s Austin office, recently wrote an article for Inside Counsel Magazine on “Being an effective inside counsel for your company’s tax department.”

“Inside counsel for today’s businesses are often required to play many different roles: monitor, researcher, business advisor, counselor and gatekeeper, to name just a few,” the article begins. “In order to successfully navigate these multiple roles, many in-house attorneys are finding it necessary to open up lines of communication with other key departments within the business. The increased responsibility placed on inside counsel requires extensive intra-business communication to ensure that in-house attorneys are informed of all activities that may have a legal impact on the organization. Unfortunately, in many instances, there is a disconnect between inside counsel and an organization’s tax department.”

To see the full article, visit: http://www.insidecounsel.com/2014/08/05/being-an-effective-inside-counsel-for-your-company

 

Graves Dougherty Hearon & Moody Hires New Associate

Graves Dougherty Hearon & Moody has announced the hire of Jennifer L. Smith as an associate.

Smith, formerly of Gardere Wynne, focuses her practice on mergers and acquisitions and corporate governance within the entertainment, manufacturing, healthcare and energy industries. She has broad experience representing a variety of clients from private equity groups to global oil and gas companies. Her practice also includes reorganizations as well as private equity and debt financings.

Smith earned her J.D. at Southern Methodist University Dedman School of Law, cum laude, in December 2008; and aBachelor of Healthcare Administration at Texas State University in 2000.

Austin-based Peaceful Streets Project: Federal Judge Upholds Right to Film Police

U.S. Magistrate Judge Mark Lane has upheld the Constitutional right to film police officers in the case of Antonio Buehler vs. the City of Austin, Austin Police Department, et. al.

Plaintiff Antonio Buehler, founder of Abrome Learning and the Peaceful Streets Project made headlines in 2012 after he photographed Austin Police Officer Patrick Oborski assaulting a woman in the early morning hours of New Year’s Day, 2012. After Oborski noticed Buehler taking pictures, he assaulted Buehler, and filed a Felony Harassment of a Public Official charge against him for allegedly spitting in the officer’s face. A charge that carries a two to ten year prison sentence.

Facing felony charges, Buehler went to the public to ask for witnesses to step forward, and multiple witnesses did. A local entrepreneur and a local academician who were both in the 7-11 parking lot shared their stories with the local media, and a gentleman across the street took cell phone video of the incident. With witnesses and the video, coupled with Buehler’s background which included degrees from West Point and Stanford, prior service as an Airborne Ranger qualified Army officer, extensive volunteering and education work with children, his role as a designated driver that night, and no previous run-ins with law enforcement, the incident garnered significant media attention and forced the Austin Police Department to resort to a slander campaign against Buehler and the woman who was assaulted on New Year’s Day.

Buehler used his significant following of supporters to then launch the Peaceful Streets Project to encourage people to know their rights, stand up for the rights of one another and to hold police accountable for their actions. The Peaceful Streets Project handed out 100 free video cameras to residents of Austin to document police action, they organized hundreds of cop watch events, and they organized two police accountability summits with speakers such as the Black Panther Party co-founder Bobby Seale, and investigative journalist Radley Balko.

With the rise of the success of the Peaceful Streets Project, the Austin Police Department increased their harassment of Buehler and his supporters. APD arrested several Peaceful Streets Project volunteers for filming, including Buehler who they arrested three more times. Each time the police arrested a filmer, the Peaceful Streets Project would increase their efforts to document police actions.

Buehler’s charges remained outstanding for 15 months before a Grand Jury finally no-billed Buehler. However, they did indict him on four class C misdemeanor charges (failure to obey (3), interference with public duties (1)).

Buehler retained Attorney Daphne Silverman to file suit against the City of Austin, Austin Police Chief Art Acevedo, and Officers Patrick Oborski, Robert Snider, Adam Johnson and Justin Berry, on First, Fourth, and Fourteenth Amendment Grounds, as well as violations of the Texas Constitution, conversion, false arrest and false imprisonment. The City of Austin then filed motions to dismiss the case which resulted in Judge Lane’s decision.

Judge Lane ruled against the city on almost every ground of the 12(b)(6) motion, with the exception of excessive force. Buehler’s civil rights suit against the City remains lively, as there is a recognized First Amendment right to film the police: “A private citizen has the right to assemble in a public forum, receive information on a matter of public concern – such as police officers performing their official duties – and to record that information for the purpose of conveying that information.”

Silverman said that she and her client were pleased with Lane’s detailed analysis in support of Buehler’s constitutional rights. “This ruling is a clear signal to law enforcement that the public can now photograph and videotape police officers so long as they don’t interfere with the officer’s duties,” she said.

Buehler said he hopes his case exposes corruption endemic within the Austin Police Department and in departments nationwide. “The extent to which APD is willing to go to try to victimize the victims of police abuse to protect cops who commit felony crimes is quite telling about the corrupt culture within the police department. I am the founder of an education company, a West Point, Stanford and Harvard graduate, the designated driver that night who tried to stand up for a woman being assaulted by the police, and there are a half dozen witnesses and two videos that all prove that the cops committed multiple crimes that night and that the woman they assaulted and I were both innocent victims. If the cops are willing to go after me like this, imagine what they’ll do to a young black or Hispanic male, a homeless person, or a person with prior drug offenses.”

The National Press Photographers Association in May filed an amicus brief in support of his case, which the organization says is not an isolated incident but “part of a nationwide phenomenon where police have interfered with citizens’ rights to photograph and video-record officers engaged in official business in public spaces.”

“NPPA follows these cases closely, and strives to ensure that the crucial role that journalists and citizens play in promoting discussions of public concern is not diminished,” the brief states.

While Buehler has not been convicted of any crimes levied against him by the Austin Police Department, the four misdemeanor charges are still pending, over two years later.

For more information, visit www.peacefulstreetsproject.com

Austin Attorney Discusses Why New Truck Safety Regulation Suspended

The Senate Appropriations Committee has temporarily suspended a new truck safety regulation, fearing it will actually cause more accidents than it would prevent.

“The suspended rule limited how often truckers may drive between 1:00 a.m. and 5:00 a.m. Its intention was to reduce fatigue, and thus reduce accidents. However, the trucking industry responded, pointing out that it would place even more big rigs on the road during daytime hours and, therefore, actually increase the likelihood of accidents,” explained trucking accident attorney Brooks Schuelke of Austin-based Perlmutter & Schuelke LLP.

To prioritize safety for all drivers, the Senate Appropriations Committee suspended the regulation and sent it for further study, agreeing that highways and interstates would be more congested during peak daylight commuter hours. The trucking industry was heartened by the move to suspend the regulation and expressed hope that they would be more involved with any changes to current rules.

The current regulations are a source of great frustration for trucking firms and drivers. “Regulations can lower wages and reduce productivity, leading to poor customer service and dissatisfied drivers,” Schuelke added, “and both these factors can raise the likelihood of a collision.”Schuelke

In committee meetings, senators debated the value and meaning of proper rest for safe driving. Opponents of the regulation pointed out that 4,000 people were killed and more than 73,000 injured in trucking collisions in 2012. The regulation was suspended in response, allowing the committee to focus on the safety aspects of large trucks on the road during the night.

But the problem may not even depend on this particular regulation. “Highways are busier now than they ever have been at every hour of day or night, especially here in Texas,” Schuelke pointed out. “You cannot legislate people’s actions. There are always going to be people who drive in violation of the law, and accidents are still going to happen.”

A second regulation, dubbed the “restart rule,” has also been suspended. Under it, truckers could drive a maximum of 70 hours a week before halting and resting for 34 consecutive hours. The rest time was required to include at least two time slots between 1:00 a.m. and 5:00 a.m.

Thompson & Knight Adds Four Attorneys in Austin Office

The law firm of Thompson & Knight LLP has announced the addition of Rex D. VanMiddlesworth and Phillip G. Oldham as Partners and Katie Coleman and Benjamin B. Hallmark as Associates in the Government/Regulatory Practice Group of the firm’s Austin office.

“These attorneys offer expertise that adds a new dimension to our Austin office and to the Firm,” said James C. Morriss III, the Firm’s Government/ Regulatory Practice Group Leader and Austin Office Leader. “Their practice will complement our service to existing clients, many of which we have in common, and will expand the Firm’s client base. While we have a longstanding involvement in the energy industry and have served an industrial and manufacturing client base for many years, this group of attorneys brings these two elements together with their unparalleled experience in electricity-related regulatory matters, power market and electric project development issues, and in other related energy matters.”

VanMiddlesworth focuses his practice on commercial litigation, administrative law, energy, and alternative dispute resolution. He has tried cases in state court, federal court, before arbitration panels, and before state and federal agencies. He has also handled appeals in the Fifth Circuit, the Texas Supreme Court, and various Texas Courts of Appeals. VanMiddlesworth has extensive experience representing public and private entities in breach of contract disputes, tortious interference cases, and other forms of commercial litigation and arbitration. He handles all types of contested proceedings before state agencies and the State Office of Administrative Hearings, including licensing and rate-setting disputes. He also has represented a number of clients in constitutional and voting rights litigation.

He has been selected for inclusion in The Best Lawyers in America® (1995-2014) by Woodward/White Inc., Chambers USA by Chambers & Partners (2011-2014), and Texas Super Lawyers®by Thomson Reuters (2003-2013). Also, he was named the 2012 Austin Energy “Lawyer of the Year” by The Best Lawyers in America®. In addition, he is a Fellow of the American Bar Foundation and a Life Fellow of the Texas Bar Foundation. VanMiddlesworth is a frequent author and lecturer on issues including topics of evidence, ethics, constitutional litigation, and administrative litigation. Before beginning his law practice, he was awarded a Teaching Fellowship in Constitutional Law at Harvard University under Professor Archibald Cox.

Oldham focuses his practice on regulatory and administrative law, federal and state government affairs, and project development. He has specific expertise in energy and electric power markets. “His in-depth knowledge of regulatory issues in various industries makes him uniquely qualified to provide his clients with practical solutions to sophisticated legal issues,” according to the firm. Oldham has been recognized by numerous publications for his outstanding legal career, including The Best Lawyers in America® (2006-2014) by Woodward/White Inc., Chambers USA by Chambers & Partners (2011-2014), and “Leading Lawyer” in The Legal 500 US by Legalease  (2013-2014). In addition to his legal honors, he is an active member of the American Bar Association, State Bar of Texas, and Travis County Bar Association.

Coleman focuses her practice on regulatory and administrative law, with an emphasis on state and federal energy regulations, energy markets, energy litigation, and government affairs and appeals. “Her significant experience with the Electric Reliability Council of Texas (“ERCOT”) allows her to provide clients with practical solutions to complicated matters involving the ERCOT protocols that govern wholesale market participation,” according to the firm. She also has expertise in administrative law matters involving rulemakings and disputes before the Texas Comptroller of Public Accounts and the Texas Racing Commission. An active participant in civic organizations, Coleman is a Fellow of the Texas Bar Foundation, Secretary/Treasurer of the State Bar of Texas Public Utility Law Section, and a Member of the Association of Women in Energy.

Hallmark focuses his practice on litigation and administrative law matters. He has represented clients in a wide range of matters involving antitrust, tortious interference, trade secrets, condemnation, and various other issues. He served as Law Clerk to the Honorable Nancy F. Atlas in the U.S. District Court, Southern District of Texas from 2009 to 2010. Hallmark is an active member of the State Bar of Texas.

Prior to joining Thompson & Knight, the attorneys practiced in the Austin office of  Andrews Kurth, where VanMiddlesworth was Managing Partner.

Smith, Robertson, Elliott & Douglas LLP Names New Partner

Smith, Robertson, Elliott & Douglas has named Cathleen Slack as a partner.

Slack’s real estate practice focuses on representing clients in the acquisition, sale, development, financing, and leasing of commercial real estate. She routinely handles transactions involving office, retail, condominiums, skilled nursing facilities, multifamily, and mixed-use developments. Slack also advises clients in choice of entity, business formation, and mergers and acquisitions, as well as general business transactional matters.

Slack was previously a shareholder in the real estate practice group of Munsch Hardt’s Kopf & Harr’s Austin office.

Austin Attorney Wins Prestigious Jean W MacDonald Lifetime Achievement Award

Locke Lord Partner Cynthia Bast has been recognized by the Texas Affiliation of Affordable Housing Providers with the Jean W. MacDonald Lifetime Achievement Award. The award is given to an individual who exemplifies leadership in the affordable housing industry and embodies the philosophy of providing quality affordable housing to all Texans. The award was presented at the recent Texas Housing Conference.

Bast, who Chairs Locke Lord’s firm-wide Affordable Housing Practice and who is Co-Chair of the Firm’s Board of Directors, assists clients with complex affordable housing and community development transactions using a variety of financing tools, including housing tax credits, tax-exempt bonds, HUD programs, and other federal, state, and local resources.

In addition to her transactional work, Bast represents clients before relevant governmental authorities and advocates for affordable housing issues with the Texas Department of Housing and Community Affairs and Texas Legislature. More recently, she has been working with clients to preserve affordable housing properties that are nearing the ends of their regulatory compliance periods or in need of financial restructuring.

“We couldn’t be more proud of Cynthia,” said Locke Lord Chair Jerry Clements. “For more than 20 years, Cynthia has worked with clients providing legal and legislative assistance on affordable housing programs. She has been on the forefront of this growing industry, building Locke Lord’s affordable housing practice, and is recognized as a leader in the field. Cynthia is also a dedicated public servant, devoting countless hours to advocating for affordable housing issues and educating through speaking engagements across the country.”

Managing Paralegal Honored by Pro Bono College of the State Bar

Michelle Pierce, managing paralegal of the Austin-based Loewy Law Firm, has been recognized by the Pro Bono College of the State Bar of Texas.

Created in 1992 by the State Bar of Texas, the Pro Bono College recognizes attorneys, paralegals and law students who have far exceeded the State Bar’s “aspirational pro bono goal in their efforts to address the vast unmet legal needs of the poor.”

Pierce oversees the firm’s legal support team, facilitates firm operations and technology integration, and serves as a liaison between the practice and outside experts.Michelle

She brings more than 13 years of experience as a personal injury paralegal to the firm. While specializing in traumatic brain injury, wrongful death, complex auto accidents and premises liability, Pierce also has past experience in medical malpractice, pharmaceutical cases and workers’ compensation provides extensive knowledge of a wide range of injuries and medical conditions. She draws upon that knowledge to prepare comprehensive demand packages outlining past injuries, treatment and progress, and future care needs in every case. In addition, Pierce is a certified mediator, and utilizes both traditional and contemporary alternative dispute resolution techniques and psychological theory to help maximize the firm’s success in settlement negotiations.

“I’ve been a member of the Pro Bono College since 2013, and earned my admission (and subsequent readmission) through a combination of pro bono work at our firm, volunteering at free legal clinics, and recruiting others for pro bono and volunteer legal work,” said Pierce.

Adam Loewy, the firm’s managing partner, said “Michelle’s endless commitment to those in need is one of the major reasons for our firm’s success.”

Texas Court of Appeals holds there is no right under the Administrative Procedure Act to seek judicial review of a state agency’s denial of a petition for rulemaking

By Dale Wainwright, W. Stephen Benesh, Davison W. Grant and Elizabeth Kozlow Marcum, of Bracewell & Giuliani LLP

On July 23, 2014, the Austin Court of Appeals held that Texas trial courts lack subject matter jurisdiction under the Texas Administrative Procedure Act (APA) to review orders by state agencies denying petitions for rulemaking. In Texas Commission on Environmental Quality v. Bonser-Lain, et al., No. 03-12-00555-CV (Tex. App.—Austin Jul. 23, 2014), the Court of Appeals addressed whether the APA waived the Texas Commission on Environmental  Quality’s (TCEQ) immunity by permitting a district court to consider the appeal of TCEQ’s denial of a petition for rulemaking. The Court of Appeals first considered whether TCEQ had standing to appeal, in light of the fact that TCEQ won on the merits at the district court, but its plea to the jurisdiction was denied. After noting concerns that collateral estoppel could preclude relitigation of the jurisdictional issue, the Court of Appeals determined that it had subject matter jurisdiction to consider the appeal. The Court next considered whether the district court had jurisdiction to consider TCEQ’s denial of the petition for rulemaking. Noting that the State and its agencies cannot be sued absent an express waiver under principles of sovereign immunity, the Court held that the district court did not have jurisdiction because the Legislature’s failure to include such an appeal in the APA, termed “deliberate silence,” did not demonstrate its intent to allow judicial review of agency decisions denying petitions for rulemaking.

Factual and Procedural Background:

A group of individuals filed a petition with TCEQ requesting that it adopt rules aimed at limiting greenhouse-gas emissions from fossil fuels in Texas. TCEQ considered the petition at a public meeting but later denied the petition and issued a written order, listing several independent reasons for denying the petition. The group of individuals  filed suit against TCEQ, seeking judicial review of the decision based on provisions in the Texas Water Code. In response, TCEQ filed a plea to the jurisdiction arguing that the district court lacked jurisdiction to review TCEQ’s decisions because such a review was barred by sovereign immunity and section 5.351 of the Texas Water Code does not provide a waiver of sovereign immunity for suits challenging a denial of a petition for rulemaking. The district court denied TCEQ’s plea to the jurisdiction but affirmed its decision based on one of the legal grounds advanced by TCEQ in its administrative order. While the district court upheld TCEQ’s decision, it also expressly rejected certain of TCEQ’s alternative reasons for denying their petition in its order. TCEQ then filed an appeal raising two issues: (1) that the district court erred in denying its plea to the jurisdiction; and (2) in the alternative, that the district court’s declarations concerning TCEQ’s other grounds for denial based on the public trust doctrine and preemption constitute improper advisory opinions and should be vacated by the Court of Appeals.

Opinion of the Austin Court of Appeals:

Noting that subject matter jurisdiction is essential to the authority of a court to decide a case, the Court recognized that subject matter jurisdiction was implicated here in two respects: (1) whether the Court had jurisdiction over the appeal, and specifically, whether the TCEQ had standing to bring the appeal since TCEQ prevailed at the district court, and (2) whether sovereign immunity deprived the district court of subject matter jurisdiction over the underlying dispute.

Whether TCEQ Had Standing to Bring the Appeal:

First, the Court considered whether TCEQ had standing to bring the appeal, since the judgment of the district court had affirmed TCEQ’s decision to deny the petition for rulemaking. The Court recognized that Texas courts have long held that a party who obtains a favorable judgment may not appeal the judgment merely to attack findings and conclusions with which it does not agree. However, the Court recognized that, while the judgment of the district court appears favorable to TCEQ, the district court could only have reviewed TCEQ’s decision after it concluded it had jurisdiction to do so: “In rejecting the Commission’s plea to the jurisdiction, the district court necessarily concluded that section 5.351 of the Texas Water Code operated as a waiver of sovereign immunity.” SeeTex. Comm’n on Envtl. Quality v. Bonser-Lain, et al., No. 03-12-00555-CV, at 6. And under principles of collateral estoppel, the Court noted that TCEQ may be potentially precluded from relitigating this jurisdictional issue in subsequent proceedings. Therefore, the Court determined that TCEQ had sufficiently demonstrated that its interests had been prejudiced or adversely affected by the district court’s judgment, and that, consequently, grounds existed for the Court to review the district court’s denial of TCEQ’s plea to the jurisdiction.

 

Whether Sovereign Immunity Deprived the District Court of Subject Matter Jurisdiction over the Underlying Dispute:

The Court next considered whether the district court had jurisdiction to consider TCEQ’s denial of the petition for rulemaking. Suits against TCEQ are generally barred by sovereign immunity because the State and its agencies cannot be sued, absent an express waiver by clear and unambiguous language. Sovereign immunity deprives a district court of subject matter jurisdiction. TCEQ argued that neither the APA nor section 5.351 of the Texas Water Code allows for judicial review because the Legislature has not waived immunity. The “pivotal issue” for the Court of Appeals, therefore, was whether the Legislature waived immunity either by statute or legislative resolution.

While the APA provides a right to judicial review of certain agency decisions and provides that, under certain circumstances, a suit for declaratory relief may be brought to determine the validity or applicability of a rule, the APA is silent with respect to whether a person may appeal or challenge an agency’s decision to deny a petition for rulemaking. The Legislature must provide a right to judicial review by clear and unambiguous language. The Court noted that while the Legislature has expressly demonstrated its intent to allow judicial review of certain types of agency decisions under the APA, it has not done so with respect to agency decisions on petitions for rulemaking. Based on this “deliberate silence,” the Court concluded that the APA does not provide a right to judicial review of an agency’s refusal to adopt rules. SeeTex. Comm’n on Envtl. Quality v. Bonser-Lain, et al., No. 03-12-00555-CV, at 9-10. Further, the Court of Appeals concluded that the Texas Water Code does not provide a right to judicial review of a petition for rulemaking, as section 5.351 is limited to the review of “final agency orders” and administrative actions that are regulatory in nature and only upon exhaustion of all administrative remedies. See id. at 10-11. Considering the scope of judicial review of section 5.351 of the Texas Water Code in conjunction and harmony with the judicial-review of the provisions of the APA, the Court concluded that neither the APA nor section 5.351 provide a right to judicial review of a petition for rulemaking. Therefore, the Court of Appeals vacated the district court’s judgment and rendered judgment dismissing the cause for want of jurisdiction.

Important Takeaways:

The Court of Appeals’ holding is significant because it precludes private parties from asking courts for “second opinions” on state agency denials of requests for rulemaking, thereby avoiding protracted and potentially costly resolution of rulemaking requests. Moreover, the ruling protects the State’s sovereign immunity. It would have been sufficient for the Court to have merely found that the regulations at issue did not contain “clear and unambiguous language” establishing a right of judicial review. But the Court chose to go a step further, specifically noting the Texas Legislature’s “deliberate silence” in the APA with respect to agency decisions on petitions for rulemaking. The Court of Appeals’ decision clearly falls within the line of recent court decisions denying jurisdiction for a suit against an arm of the state, except where the Legislature has expressly provided for such jurisdiction.