Texas Supreme Court Rules on Bar Admission in Time of Covid

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

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

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

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

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

Texas Online Public Information - Courts (TOPICs)

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

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

Fundamental Right of Parents

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

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

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

Bona to vada your dolly old eek!*

Monday’s landmark Supreme Court decision in Bostock v. Clayton County, Georgia came as a surprise to many, with typically conservative justices making decisions with progressive outcomes. As so many have reported, Neil Gorsuch, a strict textualist, looked at the plain language of the law and concluded:

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Bottom line: Language matters.

We at the Harris County Law Library also have an appreciation for language and its many idiosyncrasies. Reading about the Supreme Court’s historic decision brought to mind the importance of language and words – what they mean, and how they function.

Language serves a greater purpose than communication. It is the currency we use for self-expression, and it gives meaning to thoughts and ideas. Language also builds communities. To learn the vocabulary, grammar, syntax, and tone of a language is to become part of the in-group that speaks it. In short, words give us access to the communities we inhabit.

Within those communities, we develop a jargon, which one website defines as “a type of shorthand between members of a particular group of people, often involving words that are meaningless outside of a certain context.” When mastered, jargon serves as an emblem of our belonging. One good example that illustrates how language defines a culture comes from the LGBTQ community in Great Britain.

Polari

This anti-language is, thankfully, a relic of a bygone era when gay men in the United Kingdom relied on words to keep them safe. Homosexuality was not decriminalized in the UK until the passage of the Sexual Offences Act of 1967. Developing a tool for communicating within the gay community prior to that time was necessary to survive. That tool was Polari, a secret language that evolved from thieves’ cant, an argot used in the world of petty crime that dates back to the 16th century. Along the way, Polari picked up bits of Yiddish, Italian, and Romani. It bears many similarities to Cockney Rhyming Slang, using humor and wit to speak in a way that granted gay men the freedom to socialize and build community without fear. Today, Polari is all but dead, a sign of the times. Yesterday’s decision to protect LGBTQ individuals in the workplace hinged on a strict textual reading of the law, and consequently, led to the further demise of cultural touchstones like Polari that are no longer needed.

*Nice to see your pretty face!

Landmark SCOTUS Ruling Protects LGBT Workers

In an earlier post today, we marked the signing of the Magna Carta and recognized the impact it had on our rights as set forth in the United States Constitution and the Bill of Rights. Today, 805 years later, our nation takes another leap in its recognition of basic civil rights for its citizens. According to our nation’s highest court, employers who fire gay or transgender persons simply on the basis of their homosexual or transgender status violate Title VII of the Civil Rights Act of 1964. This morning, the United States Supreme Court handed down a landmark decision protecting members of the LGBTQ community from employment discrimination. In each of the cases that forms the basis of Bostock v. Clayton County, Georgia, a long-time employee was fired for simply being gay or transgender. Each employee filed an action under Title VII, alleging unlawful discrimination on the basis of sex. In two of the cases, the appellate courts ruled that such discrimination did violate Title VII. However, with respect to the third case, the Eleventh Circuit found that the law does not prohibit employers from firing employees for being gay. In determining the ordinary public meaning of Title VII’s mandate that employers not discriminate against individuals on the basis of race, color, religion, sex, or national origin, the Supreme Court held that

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

In so holding, the Court rejected an argument that in ordinary parlance firing a person for being gay or transgender did not amount to discrimination on the basis of sex because the fired individual would probably admit that they were fired on those grounds rather than because of their sex. Additionally, the Court dismissed an argument that discrimination based on one’s status as gay or transgender did not rise to the level of the disparate treatment showing required because there was no intentional discrimination based on sex on the part of the employer. The Court disagreed, finding that Title VII focuses on discrimination of individuals, not groups. Additionally, the Court stated that just because homosexuality and transgender status are not specifically included on the list of protected characteristics does not necessarily mean that the they are implicitly excluded.