Attorneys for ‘Affluenza’ Killer Seek His Release

August 31, 2016
By David Lee
FORT WORTH (CN) – Lawyers for jailed “affluenza” killer Ethan Couch moved to free him Tuesday, arguing the adult criminal court that sentenced him has no jurisdiction in his juvenile case.
Tarrant County Judge Wayne Salvant sentenced Couch, 19, to nearly two years in county jail in April for violating the conditions of his juvenile parole. The sentence was based on 180 days for each of the four people he killed while driving drunk as a juvenile.
Couch and his mother Tonya fled to Mexico four months earlier after a video was posted on Twitter showing Couch at a beer pong game.
Salvant rejected a subsequent appeal in May.
Couch stoked outrage in 2013 when former Tarrant County Judge Jean Boyd sentenced him to only 10 years probation and therapy after he drunkenly drove into a crowd of people helping a stranded vehicle on the side of a road in south Fort Worth.
He killed mother and daughter Hollie and Shelby Boyles, youth pastor Brian Jennings and Breanna Mitchell, while seriously injuring several others.
A defense psychologist testified at trial that Couch was a product of “affluenza” – that his family felt their wealth bought privilege and that there was no rational link between behavior and consequences. Couch was facing up to 20 years in state prison.
Couch’s attorneys contend in court papers filed Tuesday that since the case was originally in juvenile court, Savant has no subject-matter jurisdiction.
“This court is a ‘criminal district court,’ not a ‘district court,’ and its jurisdiction is limited to criminal matters,” the 43-page plea to the jurisdiction states. “As with all juvenile matters, this matter is a civil action, not a criminal case.”
Couch’s attorneys say that all of Savant’s orders, judgments and probation conditions “are void – a total nullity – and must be immediately rescinded.”
They say the Texas Legislature has drawn a “clear distinction” between district and criminal district courts in the Texas Family Code.
“The Texas legislature specifically failed to provide for or allow transfer to a ‘criminal district court’ having only civil jurisdiction in the determinate sentencing scenario at issue in this case,” the motion states.
Couch is represented by Wm. Reagan Wynn with Kearney Wynn and Scott Brown, both of Fort Worth.
Couch’s mother is facing one count of hindering apprehension and one count of money laundering.

From Courthouse News.

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No Bias in Texas’ Low-Income Housing Credits

August 29, 2016
By David Lee
DALLAS (CN) — A federal judge Friday dismissed a closely followed housing discrimination lawsuit against Texas, remanded by the U.S. Supreme Court last year, finding the state’s discretion in awarding housing credits is not discriminatory.
U.S. District Judge Sidney Fitzwater threw out the lawsuit filed in 2008 by the Dallas-based Inclusive Communities Project, which alleged violations of the Fair Housing Act and the Equal Protection Clause of the Fourteenth Amendment.
The nonprofit said the state’s Low Income Housing Tax Credit program perpetuates and exacerbates racial segregation in Dallas and other large cities, as new projects were all going up in poor and minority areas.
It cited a study by the Texas Department of Housing and Community Affairs that found a disproportionate allocation of credits to areas of “above average minority concentration and below average income levels.”
The trial judge ruled for the Inclusive Communities Project on its claim of disparate impact under the Fair Housing Act but rejected the other claims.
On appeal, a three-judge panel of the Fifth Circuit agreed that the Fair Housing Act covers such disparate impact claims, but reversed, finding the trial judge improperly placed the burden on Texas to disprove discrimination.
The Supreme Court affirmed and remanded last year by 5-4 vote.
Writing for the majority, Justice Anthony Kennedy said that “recognition of disparate-impact claims is consistent with the FHA’s central purpose.”
Kennedy warned the plaintiff that it had to clear a high bar of “robust causality” to prove disparate impact on remand, citing recent U.S. Department of Housing and Urban Development rules stating that disparate impact liability “does not mandate that affordable housing be located in neighborhoods with any particular characteristic.”
Citing the heightened standard in his Friday ruling, Judge Fitzwater wrote that the plaintiff must prove a “specific, facially neutral policy” by Texas that caused a disparate impact.
“By relying simply on TDHCA’s exercise of discretion in awarding tax credits, ICP has not isolated and identified the specific practice that caused the disparity in the location of low-income housing,” the 32-page opinion states. “ICP has pointed to the ‘cumulative effects’ of TSHCA’s decision-making process over a multi-year period. ICP cannot rely on this generalized policy of discretion to prove disparate impact. Identification of a specific policy or practice is also essential for determining how to remedy the disparate impact.”
The plaintiff failed to identify any offending policy where there is a remedy that is constitutionally sound, Fitzwater said.
“Here, ICP has not identified any barriers to housing that the court can remove,” the opinion states. “Although ICP complains of TDHCA’s exercise of discretion in housing decisions, it does not ask the court to prohibit TDHCA from using its discretion; rather, it asks the court to require that TDHCA exercise its discretion in a specific way: to desegregate housing.”
Fitzwater said the plaintiff is “actually complaining about disparate treatment,” not disparate impact.
He said the purpose of disparate impact liability is to find and remove policies that result in unintended discrimination, and that the plaintiff is complaining about the state’s “discretion, not the existence of the discretion.”
Texas Attorney General Ken Paxton cheered the dismissal, saying the plaintiff failed to meet the Supreme Court’s heightened requirement of “robust causality.”
“The district court previously rejected ICP’s claim that TDHCA engaged in intentional racial discrimination,” Paxton’s office said in a statement Friday. “Today’s ruling rejects ICP’s disparate-impact claim, finding that ICP failed to prove that any policy or practice of TDHCA caused a racial disparity in the distribution of tax credits.”

From Courthouse News.

Transgender Health Regs Trigger Texas Suit

August 23, 2016
By David Lee
WICHITA FALLS, Texas (CN) — In Texas’ latest salvo in its fight over national transgender policies, the state says the Obama administration cannot change the determination of gender from “biological fact” to a “state of mind” and force physicians to perform sex-reassignment surgeries.
Texas, four other states and three physicians associations sued the U.S. Department of Health and Human Services on Tuesday in Federal Court, claiming the new Affordable Care Act rule is an example of “regulatory overreach that is invading the coffers” of the state and violating the “medical judgment and conscience rights” of physicians.
“On pain of significant financial liability, the regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex — including the sex of children,” the 79-page complaint states.
“Under the new regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment”
Texas argues that Congress has consistently defined the term “sex” for several decades and across several federal laws as meaning a patient’s biological sex at birth.
“Thus, with a single stroke of the pen, Health and Human Services has created a massive new liability for thousands of health care professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures,” the complaint states. “And Health and Human Services has done this despite the fact that Congress has repeatedly rejected similar attempts to redefine ‘sex’ through legislation, and federal courts have repeatedly rejected attempts to accomplish the same goal through litigation.”
Texas Attorney General Ken Paxton said Tuesday morning that President Barack Obama “does not have the power to rewrite law.” He said Obama is trying to rewrite the definition of “sex” as a person’s “internal sense of gender which may be male, female, neither, or a combination” of both genders.
“The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex,” Paxton said in a written statement. “I am disappointed in the Obama administration’s lack of consideration for medical professionals who believe that engaging in such procedures or treatment violates their Hippocratic Oath, their conscience, or their personal religious beliefs, which are protected by the Constitution and federal law.”
Paxton noted that this is the 13th lawsuit he has filed against the federal government for alleged constitutional violations.
He sued the Obama administration last month over its directive that all schools that receive federal money must classify students based on gender identity, not what is listed on their birth certificates. A Dallas federal judge ruled for Texas last week, entering a preliminary injunction barring the directive from taking effect.
The other states joining Texas in the lawsuit include Wisconsin, Nebraska, Kentucky and Kansas. The physicians’ groups include Franciscan Alliance, Specialty Physicians of Illinois and Christian Medical and Dental Associations.

From Courthouse News.

USA Fights Chamber Over Financial Advisers

August 23, 2016
By David Lee
DALLAS (CN) — A new rule imposing fiduciary duties on financial advisers closes loopholes for conflicts of interest and will save retirement investors up to $404 billion in the next 20 years, the Department of Labor told a federal judge.
The Department of Labor on Friday asked U.S. District Judge Barbara M.G. Lynn to toss a lawsuit filed in June by the Chamber of Commerce’s national and Texas branches. The chamber claims the 1,023-page rule exceeds the Labor Department’s authority and will hurt retirement savers.
Announced in April, the rule imposes fiduciary duties on brokers and registered investment advisers for people who have individual retirement accounts and 401(k) plans.
The chamber claims the higher costs and liability will force advisers to stop serving such plans for small businesses.
Several insurance groups that sell annuities filed their own lawsuit against the Labor Department a week later, claiming the rule infringes on “protected commercial speech.”
The Department of Labor says it merely executed its “broad authority” under the Employee Retirement Income Security Act. It says that under previous regulations, loopholes allowed those “acting like fiduciaries to disclaim fiduciary status” and dodge the responsibilities and restrictions that come with such status.
“DOL sought to mitigate the inherent conflicts of such transactions by conditioning these exemptions on safeguards so that they would nevertheless be in the interest, and protect the rights, of retirement investors, as statutorily required,” the government says in its 130-page memorandum in support of a cross-motion for summary judgment, filed Friday.
“In these cases, three sets of plaintiffs challenge the rulemaking, but the bases of their challenge are inapposite legal authority and mischaracterizations of the rulemaking. For instance, plaintiffs would have the court disregard the functional test Congress adopted to determine fiduciary status and supplant it with a standard purportedly based on the common law of trusts, despite Congress’ express departure from the common law. Similarly, plaintiffs urge the court to rely on the distinctions and approach taken in securities laws, rather than look to ERISA. But it is ERISA, not the common law of trusts or securities laws, that is the source of the rulemaking at issue.”
The Department of Labor acknowledges that the changes will impose costs on advisers, but says they “will be significantly outweighed” by the “enormous benefit” to retirement investors.
The Labor Department says the rule change is necessary because “(t)he paradigm has shifted with the rise in IRAs, created through ERISA in 1974,” which sent retirement savings into IRAs and 401(k)s rather than employer-based defined benefit plans.
“As a result of this shift, plan participants are increasingly responsible for managing their own retirement assets,” the motion states. “Due in part to these shifts, as well as the application and manipulation of the 1975 regulation’s five-part test, much of the retirement investment advice given today is not protected by fiduciary duties and restrictions.”
The Labor Department adds that pay arrangements in the industry have “created incentives” for financial advisers to recommend products that pay them more money rather than products that best serve their clients’ interests, creating a conflict of interest.
“Product providers compensated entirely or primarily on a commission basis have a strong incentive to aggressively maximize sales, and when commissions vary depending on the product, the provider has a further incentive to recommend the product paying the highest commission,” the motion states.

From Courthouse News.

EPA Sees Link Between Fracking & Earthquakes

August 23, 2016
By David Lee
DALLAS (CN) — In a rebuke to Texas regulators, the U.S. Environmental Protection Agency stated for the first time that there is a “significant possibility” that disposal wells for fracking are causing earthquakes in the Dallas area.
Irving, a northwest suburb of Dallas, has been rattled by several earthquakes since April 2014, with the highest magnitude of 3.6 recorded in January 2015. The earthquakes shook the city of 230,000 though there are no active fracking or wastewater injection wells in the city.
The Texas Railroad Commission, which regulates oil and gas drilling, has been reluctant to acknowledge any connection between drilling and earthquakes, despite the conclusions of scientists and regulators in other states. The commission has said that scientific data do “not sufficiently support a causal relationship,” according to the EPA.
But in an Aug. 15 report, the EPA said: “In light of findings from several researchers, its own analysis of some cases, and the fact that earthquakes in some areas diminished following shut-in or reduced injection volume in targeted wells, EPA believes there is significant possibility that North Texas earthquake activity is associated with disposal wells.”
The 61-page report is the EPA’s annual evaluation of the Railroad Commission’s underground injection control program released. It commends the Railroad Commission for its “early engagement” with disposal well operators near earthquakes in Azle, Cleburne and Dallas-Fort Worth International Airport.
“This action resulted in successful voluntary closure or injection volume reduction for several Class II disposal wells,” the EPA said in the report. “Seismic activity in these three areas substantially diminished in frequency and magnitude; however, earthquake events continue in other areas of North Texas.”
The EPA says in the report that it is “concerned” by the level of seismic activity because of “the potential to impact public health and the environment,” including drinking water.
“EPA recommends close monitoring of injection activity through daily recording and reporting of accurate injection pressures and volumes from area disposal wells, coupled with appropriate data analysis methods, in a coordinated effort to detect possible correspondence with seismic activity.”
Fracking, or hydraulic fracturing, involves injecting pressurized fluid to break shale rocks to release natural gas. It was popular for several years in the vast Barnett Shale in North Texas, as rising energy prices made the expensive process more profitable.
Citing environmental fears, the nearby city of Denton tried to ban fracking but was overruled by the Texas Legislature, which passed a law last year prohibiting cities from regulating drilling.

From Courthouse News.

Ken Starr Leaves Faculty Post at Baylor University

August 19, 2016
By David Lee
WACO, Texas (CN) – Former Baylor University president and chancellor Ken Starr quit his law school faculty position Friday, severing his final ties with the college in the wake of a damning review of how school officials bungled sexual assault complaints.
Baylor said Starr’s departure is a “mutually agreed separation” that comes with Starr’s “greatest respect and love” for the school.
“Baylor wishes Judge Ken Starr well in his future endeavors,” Baylor said in a written statement. “Judge Starr expresses his thanks to the Baylor family for the opportunity to serve as president and chancellor and is grateful for his time with the exceptional students of Baylor University who will lead and serve around the world.
Starr was removed as school president in May after Philadelphia-based law firm Pepper Hamilton released the findings of a months-long external review into the school’s handing of rape complaints, particularly those against football players.
Ordered by Baylor’s Board of Regents in August 2015 as the rape cases mounted, Pepper Hamilton’s study concluded that administrators “directly discouraged” some complainants from reporting a sexual assault and in one case retaliated against a complainant for reporting.
“In addition to broader University failings, Pepper found specific failings within both the football program and Athletics department leadership, including a failure to identify and respond to a pattern of sexual violence by a football player and to a report of dating violence,” the board said at the time. “There are significant concerns about the tone and culture within Baylor’s football program as it relates to accountability for all forms of student athlete misconduct.”
Starr later stepped down as chancellor “as a matter of conscience” and intended to remain as a law school faculty member. Former head football coach Art Briles was ultimately fired and former athletic director Ian McCar later resigned after being suspended.
Baylor is currently facing several Title IX lawsuits from female students who claim administrators failed to appropriately respond to their rape claims. It is trying to settle a lawsuit filed in April by former student Jasmin Hernandez, who claims school counselors told her they were “too busy” to see her after a rape by former football player Tevin Elliott.
Elliott was sentenced in January 2014 to 20 years in state prison on each of two counts of sexual assault.
Three former female students made similar claims in a federal lawsuit they filed in June.

From Courthouse News.

TX Sen. Wants Sanctions for NFL Star’s Lawyers

August 18, 2016
By David Lee
DALLAS (CN) — A Texas state senator suing Dallas Cowboys wide receiver Dez Bryant for trashing a rental home is demanding sanctions against Bryant’s attorneys for accusing him of stealing $500,000 from their client.
State Sen. Royce West, D-Dallas, said Wednesday that Bryant’s counterclaim was filed “in bad faith and without reasonable inquiry” into its validity.
West says the disputed $200,000 and $300,000 payments to him were received in trust “to settle lawsuits at Bryant’s request and such settlement payments were in fact made to litigants” who sued Bryant.
West says that $475,000 of the money Bryant wired him was paid to settle a lawsuit by third party Eleow Hunt, with West keeping $25,000 in legal fees with Bryant’s consent.
“In total, West & Associates assisted Bryant in approximately 9 matters over the course of approximately 4.5 years, in only three of which West was the acting attorney, and in total for which West & Associates received $113,024.81, including actual expenses,” the 20-page motion for sanctions states.
“There is no evidence that the acts that Bryant attributes directly to West in fact occurred, because they did not,” the motion adds.
West sued Bryant in June, claiming the 6,400 square foot home in a gated community in DeSoto that he rented to Bryant for over two years was left in a “state of serious disrepair, littered with trash and feces, missing blinds and shutters, with cracked windows and blackened carpeting.”
Several photographs provided with the complaint show large dark stains in the carpet, abandoned furniture, piles of trash and cracked windows.
West says that after his second attempt to collect reimbursement for the damage in May, Bryant’s counsel threatened to file a separate and unrelated lawsuit against him.
In answering the lawsuit, Bryant said West’s claims are barred “by the doctrine of unclean hands” and that any damages are “reduced by a set-off.”
West says that days after he filed the lawsuit, Bryant texted him and said “I wish you [had] thought about it before you thought it was a smart idea to go after me.”
According to screenshots provided in West’s motion, Bryant said “it’s too late” to talk about the damage done to West’s home.
“How can you forget about all of the shit y’all put me through,” Bryant is said to have texted. “I left that shit along [sic] because I wanted to forget about it. I no longer have sympathy for y’all people. Just know you started this.”
Bryant’s attorneys did not immediately respond to an email message requesting comment Thursday morning.

From Courthouse News.