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LUBBOCK COUNTY BAR ASSOCIATION

Next Meeting: March 20, 2009

11:45 a.m., Lubbock Club

Speakers: Rhonda Hunter and Terry Tottenham, candidates for President-Elect of the State Bar.

RHONDA HUNTER is a sole practitioner in Dallas and is board certified in family law. She has served on the State Bar of Texas Board of Directors, the National Conference of Bar Presidents Executive Council, the Metropolitan Bar Caucus Executive Committee, the Texas Supreme Court Board of Disciplinary Appeals and Pattern Jury Charge Committee, and is a fellow in the American Academy of Matrimonial Lawyers. Hunter has served as president of the Dallas Bar Association, Dallas Bar Association Community Service Fund, J.L. Turner Legal Association and the Dallas Association of Black Women Attorneys. She has developed leadership and business development training for lawyers, implemented a juvenile justice educational program, and pioneered the Belo Legal Clinic for low-income families. She is a recipient of an ABA Partnership Award for the Dallas Bar Association and a State Bar of Texas Star of Merit award for projects related to Brown v. Board of Education. Hunter earned a B.A. from the University of Texas and a J.D. from Southern Methodist University School of Law. TERRY TOTTENHAM is partner-in-charge at Fulbright & Jaworski L.L.P.'s Austin office, and head of the firm’s Pharmaceutical and Medical Device Litigation Group. He is board certified in personal injury and civil trial law. Tottenham has served on the State Bar of Texas Board of Directors, as founder and first chair of the Health Law Section, and chair of the Litigation Section. He is a fellow of the American College of Trial Lawyers, International Academy of Trial Lawyers, and the International Society of Barristers. Tottenham has served in leadership positions with the American Board of Trial Advocates, Austin Bar Association, Austin Bar Foundation, American Academy of Healthcare Attorneys, Texas Bar Foundation, Texas Board of Legal Specialization, and the Texas Young Lawyers Association (TYLA). He has developed and delivered continuing legal education programs for lawyers and created a nationwide training program to develop trial advocacy skills for public interest and pro bono lawyers. He is an adjunct professor at the University of Texas School of Law and is active in civic affairs. He earned a B.S. from the University of Texas, J.D. from the University of Texas School of Law, and L.L.M. from George Washington University.

Cost: $13.00 per person with advance reservations; $15.00 per person at the door

RESERVE BEFORE WEDNESDAY, MARCH 18th AT NOON. By phone: 775-1389 By fax: 775-1615 By e-mail: lcba@lcba.org

___________________________________________________________________________________________________________ LUBBOCK LAW NOTES P.O. Box 109 Lubbock, TX 79408-0109 www.lcba.org Jeanne Fairman, Executive Secretary 806-775-1389

PRESORTED STDU.S. POSTAGE PAID LUBBOCK, TEXAS PERMIT NO. 798

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Vol. 23, No. 3 March 2009 Lubbock County Bar Association President – Brian Shannon President-Elect – Carolyn Moore Past President – Les Hatch Secretary – Kristi Ward Treasurer – Sam Hawthorne Directors – Gary Bellair Bill Franklin Mark Wagnon Terry Hawkins Laurie Key Harvey Morton In This Issue… Courthouse Review…………....1 SPII…………………………...2 President’s Note………………3 YouTube Contest……………..5 Firm Announcement………….5 Law Day Back to School……...6 Seminar……………………......7 In Memoriam……………….....8 Seminar……………………......9 Cases & Comments…………..10 Law Day……………………...11 Craig Brummett……………....12 Ralph Brock…...…………….. 16 Composite Photo………..........17 Vox Populi..................................18 Law Library Update...................18 Courthouse Steps.......................19 Bar Meeting.................................20

Lubbock Law Notes

The Crosby County Courthouse1

by Chuck Lanehart

The Crosby County Courthouse is classy, but certainly not fancy. The structure seems adequate to meet the needs of most county business, but not necessarily the law business. It could use, and deserves, big money from the Texas Historic Preservation Program, but renovation and preservation are not urgent concerns. I give the courthouse Three Stars (on a scale of one to five), and here’s why. The Crosby County Courthouse is intriguing, partly because it is the only courthouse I know that is positioned whomper-jawed, facing northeast (as opposed to one of the single-syllable directions). Also, there’s a fine town square in the county seat, Crosbyton, but the courthouse is not on it.2 There’s a legend that the District Courtroom originally featured a classic “To Kill a Mockingbird” balcony hidden above the current dropped-tile ceiling, but no one seems to be able to verify this, so it’s probably a myth. Completed in 1914, it is one of the oldest3 courthouses on the South Plains, producing some tidbits of very interesting history. Architects describe the Crosby County Courthouse as “an elegantly simple Georgian styled Classical Revival structure.” One look at this building is proof evident that it is The County Courthouse. Big columns are featured out front, with lots of concrete and bricks, and a bold entryway with wide steps. The courthouse grounds are graced by a medium-sized Bermuda lawn, with a few scraggly elms. There’s a historical marker and an outstanding veteran’s memorial, featuring nine granite obelisks that pay tribute to Crosby County heroes who died in service to our country. A tiny oak tree thrives near the northeast corner of the courthouse grounds. I’m told this tree originated from a cutting of the Treaty Oak in Austin.4 Courthouse parking is no problem, even when large jury panels are summoned.

continued on page 14

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SPII Benefit and Auction

The Student Public Interest Initiative (SPII) would like to invite you to participate in the 7th Annual SPII Benefit and Auction, which will be held on March 4th at 6:30 p.m. at the Baker Building in downtown Lubbock. SPII exists to promote public interest opportunities for law students and to serve the public interest at large. SPII's primary role is to provide students with opportunities to explore areas of public interest by participating in legal clinics and in various public interest internships during the summer. Additionally, by providing financial assistance, SPII enables students to overcome significant financial barriers as they pursue public interest work. SPII is the only law student organization that endeavors to fund individual students in their pursuit of low-paying and volunteer-driven public interest and non-profit internships. Because of our grants, many students have been able to work at various Legal Aid offices, Advocacy, Inc., Defenders of Wildlife, Equal Justice Works, and many more wonderful non-profit legal organizations and associations. As a local attorney, you can support the cause by giving what you can to help us raise money. Cash donations in any amount are wonderful and will be utilized to the greatest extent possible. We accept both cash and checks. Additionally, we are also seeking donations for our silent and live auctions. Previous donations have included artwork, gift certificates, spa packages, dinners at local restaurants, and free passes to golf courses. The cost for the ticket to attend the benefit is $10, and the ticket price includes hors d'oeuvres, both wine and beer, live music, and simply a good time. All donations are greatly appreciated and are tax deductible. Thank you for your support!

LUBBOCK LAW NOTES SUBMISSIONS

The Lubbock Law Notes invites persons to submit material for publication. All material must be received no later than 12:00 noon on the 3rd Friday of each month. The editorial staff reserves the right to change the deadline at its discretion. Submit material in printed form, on disk, or by e-mail to:

Kristi Ward, P.O. Box 5980, Lubbock, TX 79408 E-mail: lubbocklawnotes@gmail.com

Phone: 806-761-0998 Fax: 806-761-0991 The editorial staff expressly reserves the right to edit all submitted material for content and form. Additionally, the editorial staff assumes no obligation to print submitted material and reserves the right to refuse to publish submitted material at its sole discretion.

Lubbock Law Notes A publication of the Lubbock County Bar Association

P.O. Box 109 Lubbock, TX 79408

806-775-1389 www.lcba.org

e-mail – lcba@lcba.org

Editor: Kristi Ward Committee Members:

Ralph Brock

Craig Brummett Jeanne Fairman Mitch Hankins Karen Jordan

Hon. J.Q. Warnick Lois Wischkaemper

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ATTORNEY WANTED. 3 to 5 years litigation experience required. Regular State wide travel required. Must be hard worker, detail oriented, dedicated and capable of working at a fast and efficient manner. 401k, health Insurance and vacation offered. Salary based upon experience and qualifications. Please fax your resume to Allen Adkins & Associates, P.C. 806-771-0062. All inquires will be kept strictly confidential. If you would like, please feel free to call Allen Adkins at 806-796-7375. Please note MIKE CALFIN'S change of address (physical only): Mike Calfin; 1706 14th St.; P.O. Box 737 (08); Lubbock, TX 79401; 806 762-2744; 806 762-1143 fax. JOLYN C. WILKINS has joined the firm of Fargason, Booth, St.Clair, Richards & Wilkins, L.L.P., as a partner, effective January 26, 2009. Her new contact info is as follows: Jolyn C. Wilkins; Board Certified Family Law Specialist; Fargason, Booth, St.Clair, Richards & Wilkins, L.L.P.; Compass Bank Building; 4716 4th Street, Suite 200 (79416); PO Box 5950; Lubbock, Texas 79408; Phone: 806.744.1100; Fax: 806.744.1170.

There is a NEW CASE INFORMATION SHEET posted to the county website that the clerks will require with filings. http://www.co.lubbock.tx.us/DCrt/Forms.htm provides access to the form in PDF and Word. On February 18, 2009, the State Commission on Judicial Conduct filed Notice of Formal Proceedings against HONORABLE

SHARON KELLER, Presiding Judge of the Texas Court of Criminal Appeals. Five charges have been filed, including willful or persistent conduct that is clearly inconsistent with proper performance of her duties, willful or persistent conduct that casts public discredit on the judiciary or the administration of justice, and incompetence in the performance and duties of office.

OFFICE SPACE FOR LEASE: Office space available at 10th and Texas Ave. Easy walking distance to the courthouse, jail and municipal court. Cleaning service, DSL high-speed internet, telephone with voice mail service, fax, scanner, copier and utilities furnished. Contact: Sharon Snuggs or Philip Wischkaemper at 763-9900. OFFICE SPACE FOR LEASE: 1703 Avenue K, OFFICE SUITE $750.00; Two 12’x12’ offices and a 12’x24’ reception area. Includes use of Large Kitchen, ample parking, restrooms, separate entrance, and address. Recently remodeled with new carpeting. Office furniture available. Law Offices of Hurley, Sowder & Matthews. Contact: Robin Matthews at 763-0409. OFFICE BUILDING FOR SALE: 5111 80th Street; Approx. 1250 sq. ft.; Two large offices (or can be used as conference room), reception area, secretarial, workroom, two baths, kitchen, storage and covered parking. Great southwest Lubbock location. Contact: Jolyn Wilkins at 789-1696. OFFICE SPACE FOR LEASE: Two rooms available, one big and/or one small even room for a separate reception area if needed. Perfect location right across the street from the jail and the courthouse. Price negotiable. Contact: Susan Rowley at 743-5900 or 438-5297. OFFICE SPACE FOR LEASE: 2223 34th Street; great location; established law office; positive blue sky; 2200+ sq feet; 3 offices, 2 bathrooms, conference room/library, reception area, break room, parking; available after August 31, 2008; shown by appointment; Contact: Jonathan Elms at 744-2353 or 543-1416. OFFICE SPACE FOR LEASE: two blocks from courthouse; two suites of two offices each, shared use of reception area, conference room, kitchen, and copy room; one inside parking space per suite and free parking on street next to building; $550.00 per suite, utilities included; 619 Broadway, Curry Law Firm, 744-2100.

Send your news, classified ads, address changes, and other items to Law Notes:

lcba@lcba.org or lubbocklawnotes@gmail.com; LCBA office: 775-1389 Kristi: 761-0998

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countries around the world. But, Mandy and Joy represented our school, our state, and our nation in a manner that would have impressed all of you. They were gracious, kind, courteous, and effervescent outside of the competition rounds. And, during the course of the actual negotiation competition sessions, they acted professionally throughout and employed largely a cooperative and respectful negotiation style that was well-suited to establishing win-win solutions to the matters being negotiated. There’s was not a “my way or the highway” approach or style, but one that was intended to promote understanding and to work toward finding solutions. Near the end of the week of the Dublin events, we had a day in which we toured various historical sites and rode about in “coaches” – which were a lot like the type of American vehicle that we call a bus. The day was a great deal of fun, and the students and attorney-coaches were certainly bonding throughout the tour. (The samplings of Jameson’s products were no doubt contributors to the festive mood, as well.) However, shortly prior to returning to the campus that evening, the coach driver suddenly turned up his radio to news reports about the bombings around London that very day. For you see, this was July 7, and terrorists had struck just across the water in England. The many and varied conversations on the bus halted immediately, and a cold pall hung over all present. In fact, we later learned that one of the colleagues of the professor/coach of the English team had been injured in the blasts. The competition continued the next day, but all involved were mindful that serious challenges and dangers exist around the world. And, although this was a competition among students who were still just training to be lawyers, the significance of involving students and lawyers in important work relating to conciliation, negotiation, and the establishment of the rule of law was not lost on anyone. Mandy and Joy, through how they conducted themselves throughout the week, had – just by being themselves – been true ambassadors who demonstrated to the other students and attorney-coaches from many countries around the world how Texas law students/lawyers can and do approach problem-solving and just getting along with others in the world. They made Nancy and me so very proud to be their professors and to bask in their accomplishments. So, that’s my most meaningful occurrence/moment as a lawyer. What’s yours? Let us know by sending it to lubbocklawnotes@gmail.com. (As a follow-up, Mandy is now practicing in Cheyenne, Wyoming, and Joy is practicing in El Paso.)

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in that regard. ______________________________ 1Maria Elena does not own all of the rights related to Buddy. Paul McCartney's MPL Communications bought Holly's publishing catalog from Norman Petty in 1975. http://www.answers.com/topic/buddy-holly. MCA Records, Inc., a subsidiary of Universal Music Group, holds the rights to all of Holly's recordings. http://www.buddyhollyarchives.com/disputes.shtml. Maria Elena owns half of the royalty rights to Buddy’s music and Buddy's siblings own the other half. 2Elliott Blackburn, Money, Park Part of Holly Deal, LUBBOCK AVALANCHE-JOURNAL, Jan. 27, 2009, available at http://www.lubbockonline.com/stories/012709/loc_381901504.shtml. The City would need a separate agreement to hold a Buddy Holly music festival, according to the Avalanche-Journal. Elliott Blackburn, Lubbock Close to Landing Holly Rights Deal, LUBBOCK AVALANCHE-JOURNAL, Jan. 24, 2009, available at http://www.lubbockonline.com/stories/012409/loc_380939736.shtml. The deal stipulates that Maria Elena will be honored by including her name with Buddy’s in a small park across the street from the Buddy Holly Center. Id. This stipulation has provoked a considerable amount of outrage among the local citizenry, none of which has been reported in the local media as of the time of this writing. 3IND. CODE ' 32-36-1. 4TEX. PROP. CODE ANN. ' 26.001, et seq. 5One can search for trademark registrations at http://www.uspto.gov/main/trademarks.htm. The first four trademarks were registered in Maria Elena’s name, in care of CMG Worldwide Inc. in Indianapolis. The last five are registered in her name at her Dallas address. The attorney handling her trademark work is also in Indiana, which may help explain the choice of Indiana law to govern the contract. See supra text accompanying n. 3. 6Lanham Act ' 45, 15 U.S.C. ' 1127; Blue Bell, Inc., v. Farah Mfg. Co., Inc., 508 F.2d 1260, 1264 (5th Cir. 1975). 715 U.S.C. ' 1127. 8Blue Bell, Inc., v. Farah Mfg. Co., Inc., 508 F.2d at 1264. 9Stacey L. Dogan and Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stanford L. Rev. 1161 (2006), available at SSRN: http://ssrn.com/abstract’862965. Maria Elena does business under the name Holly Properties, apparently assuming that no one will confuse her company with the real estate rental company Holly Properties in Ocean City, NJ. 10Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 335 (1938) (ownership must be established by proof). 11TEX. PROP. CODE ANN. ' 26.012(d). 12”The Lanham Act is carefully crafted to prevent commercial monopolization of language that otherwise belongs in the public domain.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm’n., 483 U.S. 522, 573 (1987). 13See Comedy III Prod., Inc. v. New Line Cinema, 200 F.3d 593, 595 (1999) (where copyright had expired and material was in the public domain, the Lanham Act cannot be used to circumvent copyright law). 14See generally J. THOMAS MCCARTHY, THE RIGHT OF PUBLICITY AND PRIVACY (2008) and J. THOMAS MCCARTHY, TRADEMARK AND UNFAIR COMPETITION (1996). 1515 U.S.C. 1065.

LCBA Board of Directors is pleased to announce that the 2007 composite is hanging alongside the

1968, 1975, 1985 and 1995 composites in the Board Room. Also, the Board thanks Midtown Printing &

Graphics, a downtown Lubbock business since 1968, and its owner, John Frullo, for producing and framing the composite below cost for the Bar. The composite quality is impeccable and an important

means of preserving the history of the Bar.

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Maria Elena’s Trademarks

By Ralph H. Brock

According to the Lubbock Avalanche-Journal, Maria Elena Holly, Buddy Holly’s widow, has licensed the use of Buddy’s name to the City of Lubbock for $20,000 over the 20-year life of a new contract, plus an estimated $240,000 in royalty fees on all merchandise sold at the Buddy Holly Center.1 In addition, she will get her name on a small park across the street from the Center.2 A rather unusual choice of law provision states that the contract is governed by

Indiana law. The Indiana right of publicity statute protects an individual’s name from unauthorized commercial exploitation for 100 years after death, which may explain why she chose Indiana law, but the Indiana statute expressly applies only to conduct that occurs within the state of Indiana.3 Last month in this space I questioned why the City of Lubbock would enter into such a contract with Maria Elena days before her post-mortem rights under the so-called Buddy Holly law expired.4 I mentioned in passing that she might claim a trademark in his name under the Lanham Act, but I didn’t think such a claim would have any merit. I have learned since that she has in fact filed four claims on his name in 2005, and five claims on his signature in 2008.5 Trademark law is a very complex area in which I claim no expertise whatsoever. Some basics, though, are relatively easy to ascertain. A trademark is a symbol (word, name, device or combination thereof) adopted and used by a merchant to identify his goods and distinguish them from articles produced by others.6 The mark must actually be used in commerce, which means the bona fide use of the mark in the ordinary course of trade, and not made merely to reserve a right in a mark.7 Even a single use in trade may sustain trademark rights if followed by continuous commercial utilization.8 A trademark, unlike the right of publicity, protects trademark owners against commercial uses of a trademark by others that are likely to confuse consumers, either as to the source of goods or as to the affiliation, endorsement, or sponsorship of those goods by the trademark owner.9 A postmortem right of publicity statute, such as the Buddy Holly law, protects the estate against the commercial exploitation of the individual’s persona. To have a valid trademark, Maria Elena must also own the rights to the name.10 Under the Texas Buddy Holly law, her rights in Buddy’s name expired 50 years after his death, and his name passed into the public domain.11 Arguably, her trademark claims are contestable because she no longer owns Buddy’s name.12 If she no longer owns Buddy’s name, then his name cannot be protected by the Lanham Act without rendering the Buddy Holly law a nullity.13 It doesn’t seem right that she could claim protection under the Buddy Holly law until her rights expired, then claim trademark protection, but one is state law and the other is federal, so the argument may have no merit after all. I checked the recognized authority on trademarks and the right of publicity to see if one could rely on a state-law right of publicity until that expires, and register a trademark for use afterwards, but I could find no definitive answer.14 Maria Elena’s trademark claims remain contestable for five years after they are filed, and that time has not expired.15 If her trademarks are valid, she can still lose their protection if she abandons them through nonuse, or if she does not prosecute infringers. Does she charge the Surf Ballroom and the City of Clear Lake, IA, for instance, for the use of Buddy’s name? The issue is moot with respect to the Buddy Holly Center; the City is bound by a twenty-year licensing agreement. But since that license doesn’t extend to a Buddy Holly Festival, the City could still contest the trademarks

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STATE BAR’S YOUTUBE VIDEO CONTEST Do we have the next Scorsese in our midst? The entry deadline for the State Bar's YouTube video contest, "Texans on Justice: Ideals That Unite Us," is March 16, 2009. This is part of a public education initiative on the Rule of Law and its importance in our lives. We'd like to encourage you and your members and their friends and families to submit a three-minute-or-less video on the ideals that unite us as citizens of this country. Three winners will receive $2,500 prizes in the categories of 18 and Over, Under 18, and People's Choice. We're also accepting entries from school classrooms and other groups (including bar associations and law firms). Click here for all the rules and details http://www.texasbar.com/texansonjustice%20. Last year's YouTube contest, the first ever by a bar association, received national attention and lots of positive attention for our public education efforts. We know the lawyers of Texas are a creative and competitive bunch, so get those cameras rolling. We'll look forward to your entries. Check out last year's People's Choice Winner: "Like Justice for Chocolate" http://www.youtube.com/watch?v=0sWA2FytJoA.

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Law Day Goes Back to the Schools By Judge Judy Parker It has been a little over ten years since I had the opportunity to participate in the Lubbock County Bar Association’s “Talk to Our Children About Freedom” project. Many of you may remember this outreach. Around the first week of May, during what the Mayor of Lubbock proclaimed as Law Week, many of us went to our children’s or neighborhood’s schools to speak with one or two classes about the Rule of Law in our community. Although the presentations were as varied as the children we taught, one thing was consistent: we all walked away with positive experiences. Although it may be a little ways off, it is not too early to start talking about our Bar’s participation with this year’s Law Day. This year, we will be going back to the schools. Reaching out to the young members of our society is critical to fighting our culture’s increasing disillusionment with our legal system. As parents and concerned citizens, we carry the responsibility to teach our children and community about the critical importance of the Rule of Law to our democracy. As lawyers, we carry a responsibility of leadership in our communities because we stand in the front lines protecting freedoms and our system of law. I truly believe that if we, as the leaders in our community, make the effort to reach our children and give them hope and belief in our system at a young age, they will be less likely to turn to lawlessness in the future. A generation of children has gone through the schools since we last sponsored the “Talk to Our Children About Freedom” project. Respect for our system of law is not intuitive. It must be taught to each new generation of students and children. That is why we need to go back to the schools once again. I personally invite you to join alongside other members of our Bar in going to one or two classes to talk about our freedoms and the importance of the rule of law in our society. “How do I do this?” Why not just start with your children’s classes. Don’t have any children, then why not the elementary school in your neighborhood? If you don’t know what to say, then let us give you some ideas. If you have any interest in learning about how you can make a difference, please contact this project’s organizer, Layne Rouse, at laynerouse@gmail.com. Together, we will make a difference.

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Sweaza. The trouble apparently stemmed from a contentious game of poker.8

Crosby County is the one and only South Plains county that has made a serious attempt to take advantage of funding from the Texas Courthouse Preservation Program. The county applied for and received about $200,000 from the State in 2000, almost all of which went to architects and engineers for preliminary research to recommend more funding for preservation and renovation. Because the program required qualifying counties to provide matching funds, Crosby County opted out of the estimated three million-dollar price-tag to fund recommended courthouse improvements. The juxtaposition of the Crosby County Courthouse, Crosby County Jail, and the residence of the Crosby County Sheriff is special. With the exception of the Gray County Courthouse (Pampa, my hometown, hopefully the subject of a future review), I can think of no other West Texas community that located the courthouse, the jail and the residence of the High Sheriff in such a classic fashion. The 1926 Crosby County Jail9 stands on the courthouse grounds just west of the Crosby County Courthouse, adjoining the 2044-square-foot Sheriff’s personal residence. Finally, I must comment on the character of the people who have occupied the Crosby County Courthouse. My lawyer memories date from 1977, when the Honorable Denzil Bevers was 72nd District Judge, covering Lubbock and Crosby Counties. I tried my first case with Judge Bevers on the bench, and he remains one of my favorite people. At age 85, he has the sharpest wit of anyone I know. He’s a connoisseur of country music, and a kind and gentle man. Blair Cherry followed Denzil as 72nd District Judge. He was a former Lubbock County District Attorney, and therefore I anticipated Blair would mostly lean toward the prosecution. As it turned out, Blair proved to be very even-handed and bright, with one of the best judicial temperaments anywhere. Joe Heflin practiced law in Lubbock County for many years, but eventually escaped to become a very popular and dedicated Crosby County Judge. He has since fallen into disrepute as a member of the Texas Legislature (a Democrat!), but those of us who know him still think he’s okay. Crosby County Attorney Mike Ward and I were law school classmates, and we’ve remained good friends. He became a Crosby County prosecutor about 25 years ago, and at every opportunity he has kicked my butt in court. Despite his mean streak, Mike’s a great guy, and he helped me research this article. Thanks, Mike. ______________ 1. This is the second in a series of articles on South Plains Courthouses. 2. The courthouse is located on the southwest corner of Berkshire and Aspen Streets. As I’ve written before, if the courthouse is not to be found on 1st Street, or Broadway, or Main, it has been misplaced. 3. The Crosby County Courthouse dates from 1914, making it older than all South Plains Courthouses except the Dickens County Courthouse, erected in 1893. The Hale County Courthouse of 1910 still stands, but legal business is now conducted in a remodeled Sears & Roebuck building. The Swisher County Courthouse (1909) and the Scurry County Courthouse (1911) are also older, but both original buildings are now unrecognizable, remodeled and entombed behind modern slabs of granite or brick. 4. The Treaty Oak is a once-majestic Southern live oak, the last surviving member of the Council Oaks, a grove of 14 trees that served as a sacred meeting place for Comanche and Tonkawa Tribes. Forestry experts estimate the Treaty Oak to be about 500 years old and, before its vandalism in 1989, the tree’s branches had a spread of 127 feet. The tree is located in Treaty Oak Park, on Baylor Street between 5th and 6th Streets. 5. For judicial purposes, Lubbock County was annexed to Crosby County, the first county to be organized on the South Plains in 1886. The other counties attached to Crosby County were Bailey, Lamb, Hale, Floyd, Motley, Dickens, Hockley and Cochran. 6. The Crosby County Jail was once housed in the courthouse basement. 7. The Crosby County Historical Museum on the town square in Crosbyton is an outstanding place to visit and learn. 8. I assure you, I will write a proper and complete history of this fascinating West Texas crime drama when time permits. 9. The jail was renovated and expanded in 1965 and 1984.

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continued from page 1.

The interior of the courthouse is utilitarian, with no ornamentation, no marble, and linoleum tile floors. Crosby County officials – Clerk, Treasurer, Attorney – occupy the first floor, with the District Clerk’s Office on the second floor adjacent to the District Courtroom, which doubles as the County Courtroom when the County Judge has need for major litigation. The District Judge also has a small second-floor office, but it’s mostly used for storage, since the 72nd District Judge is based in Lubbock.5

The District Courtroom has a certain country charm, starting with two walls of vintage photographs of all the District and County

Judges who have served Crosby County. Gallery seating space is not quite adequate, with room for less than a hundred jurors and/or spectators on wooden pews. A row of windows provides good natural lighting for the courtroom from behind the bench, and the attorney’s arena is large and wide, with modest oak tables and leather chairs for lawyers, litigants and jurors. Money from drug seizures paid for a decent public address system. The Crosby County Courthouse has a long and notorious history of restroom inadequacy. Between 1939 and 1941, Crosby County officials recognized that the courthouse had too few toilets, so they commissioned the construction of two new freestanding buildings on the courthouse grounds. One restroom building was designated for white males, the other for “colored.” Restrooms inside the courthouse apparently were reserved for white women, but it is not clear where black women were consigned. The segregated restrooms still exist as storage facilities on the courthouse grounds, but the racist signs designating “colored” have faded away. Today, the few restrooms that exist in the courthouse are all small and hard to find. Some have been commandeered by county officials and deemed “private.” When a large panel of jurors is summoned for duty, breaks must be extended to compensate for long waits to use the restrooms. There are a couple of nooks and crannies in the courthouse basement6 that might be appropriated for lawyer-client conferences and general privacy. Otherwise, the Crosby County Courthouse is not very lawyer-friendly. However, I’ve heard few complaints concerning the heating and cooling of the Crosby County Courthouse, despite the fact the building has been retro fitted for almost all modern amenities. The history of Crosby County and its courthouse could fill a small shelf of books.7 Here’s a short outline of fascinating stories I’ve run across in my brief research. The courthouse was located at Crosbyton only after a series of sometimes violent political skirmishes that saw Crosby County first established at Estacado, and later at Emma. Allegations of courthouse arson and county records thefts were rampant during these provincial wars among the far-flung county towns. The architect of the 1914 Crosby County Courthouse, M.L. Waller, was a student of the Prairie Style of architecture, popularized by the American icon Frank Lloyd Wright. On May 14, 1923, two criminal defendants were shot dead awaiting trial for attempted murder, as they sat on the Crosby County Courthouse steps. The shooter and complainant, the aptly named D.L. “Poppin” Payne of Ralls, fired eight rounds from his .45 caliber pistol into the bodies of Maud Rippy and J. Sweaza of Dimmitt. A third defendant, Dick Rippy, locked himself in the men’s room until Payne could be captured. Payne had reportedly survived at least two prior attempts on his life by the Rippys and

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PRAIRIE DOG LAWYERS

ADVANCED CRIMINAL LAW SEMINAR

DATE: MARCH 5 - 6, 2009

TIME: ON-SITE REGISTRATION: 7:30 a.m. MARCH 5

ADJOURN: 5:00 p.m. MARCH 6

LCDLA PARTY: 6:30 p.m. MARCH 6 – American Wind Power Museum

PLACE: Texas Tech University School of Law – Mark and Becky Lanier Auditorium

COST: Pre-Registration (by February 13, 2009) - $75.00, including $55 tuition (BOOK and CD) plus a $20 voluntary payment to support TCDLA / - $25.00, including $5 tuition (CD ONLY) plus a $20 voluntary payment to support TCDLA

Registration (after February 13, 2009) - $75.00, including $55 tuition (CD ONLY) plus a $20 voluntary payment to support TCDLA

COURSE DIRECTORS: Laurie Key and Sarah Gunter

CONTENT: Three Breakout Tracks: Appellate, Federal Law, Juvenile Law

CONTACT: LAURIE KEY, DIRECTOR, 806.771-3933.

SEMINAR INFORMATION: The 29th annual Prairie Dog Lawyers Advanced Criminal Law seminar will be held on Thursday, March 5, and Friday, March 6, 2009, at the Texas Tech University School of Law, Mark and Becky Lanier Professional Development Center, located at 1802 Hartford Avenue, in Lubbock, Texas, 806.742-3990. Registration forms may be faxed to 512.469.0512, or mailed to TCDLA, 1707 Nueces Street, Austin, Texas 78701. The seminar is hosted by LCDLA, CDLP, and TCDLA. Registration deadline is FEBRUARY 13, 2009.

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RESOLUTION OF THE LUBBOCK COUNTY BAR ASSOCIATION

BARBARA S. BENSON A special meeting of the Lubbock County Bar Association has been called to meet in the 72nd District Courtroom on Thursday, January 29, 2009. The sole purpose of the meeting is to memorialize the life and career of Barbara S. “Bobbie” Benson, a revered member of the association. The colleagues, family and friends of Bobbie will have the opportunity to share with each other remembrances of Bobbie, each in his or her own way. Barbara was born on March 10, 1919 in South Braintree, just outside of Boston, Massachusetts. Her parents were Albert and Jeanette Gowing. Her father was an electrical engineer and her mother was a homemaker. She graduated as valedictorian from Franklin High School in 1936 at the age of 17, where she was a high jumper on the track team. She attended Simmons College, a private women’s college and earned a Bachelor of Science in General Science in 1940 and became a lab assistant at both Harvard Medical School and the Simmons chemistry lab. Later, in her first law-related job, she went to work as a secretary for a patent attorney at American Cyanamid Company, using her knowledge of both science and the German language doing patent comparisons on German patents. Recognizing her potential, the company offered to help her pay for law school; however, she declined the offer. Along with many other young Americans in 1940s, Barbara decided to join the military, with the intention of seeing the world. She was in the first class of women commissioned into the United States Marine Corps in 1943 and served her country for three years. At the age of 25 she was the commander of the staging area for sending women pilots overseas and she ultimately rose to the rank of Captain. Instead of seeing the world, Barbara saw much of the United States and met her future husband, Charles E. Benson, in Corpus Christi where they were both stationed. They decided to marry after a 60-day whirlwind courtship. The two were married in Cotton Center, Texas, Charlie’s hometown, in a small family ceremony on September 2, 1944. Charlie had not told her that the small family wedding would include 64 cousins. Within 15 days of the wedding she was to report to El Toro, California and Charlie was on his way to the South Pacific. When World War II ended, the Bensons moved to Texas so that Charlie could attend law school at the University of Texas. The family grew. Upon Charlie’s graduation they moved to Pagosa Springs, Colorado, where he was county attorney. Eventually they returned to Texas, when Charlie opened a law office in downtown Lubbock. Barbara acted as Charlie’s secretary from the time he worked in Colorado until she became a lawyer. In 1958, Charlie convinced Barbara to read for the Texas Bar. He told her that he needed another lawyer in his firm, but could not afford to pay wages. He promised that he would tutor her at night after she finished her secretarial work at the office and tended to all the needs of her family – four children, a mother-in-law, and husband. For four years, Bobbie studied under Charlie in his general civil practice. Meade Griffin, who introduced Bobbie to the Texas Supreme Court, not very flatteringly stated, “She’ll probably never make it.” He was forced to retract those words when she passed the Bar and was admitted to practice in 1964. Bobbie became a full partner in the firm named Benson and Benson, one of a very limited number of women practicing in Lubbock at the time. 13

at noon when it was around 100 degrees to bring me a sandwich and a drink and to make sure the mower was still running and I still had gasoline. It paid well - - - - $10.00. I found a letter in Mom’s scrapbook. My Dad was writing to my little sister who was at summer camp in New Mexico. In the letter, Dad wrote about just watching a ball game at Southern that was hosting a regional Pony League tournament. It had been raining and the playa lake had flooded the ballpark. My brother, Phil, and one of his friends had been there all night pumping water out of the dugouts. They took cots and a lantern and every two hours would put gas in the pumps. Do you have any idea how many mosquitoes and flying insects a lantern can attract on a muggy summer night on the bank of a flooded playa lake? Webster’s uses these exact words following the word “miserable.” Looking back, I learned many of life’s lessons during that time. I worked hard alongside my friends and parents. I could visibly see the reward of my efforts. It provided years of enjoyment. I learned to work and play and compete with and against my peers. I was an “All Star” bench warmer. Better than average but not great -- the story of my life. I learned to respect authority under my coaches and umpires. You didn’t throw your bat or argue with the umpire and neither did your family. I recognized and appreciated the fact that my Dad and many like him were working hard without pay to improve the quality of my life and the lives of a lot of other kids they did not know. As time has passed, the City’s role in building, owning, and operating such facilities, including soccer, greatly increased. No one today would even consider doing what the past generation did in order to build what they wanted. Today, our solution is to push for bonds to be issued so that others can pay for our special interests. And if that fails, rather than organizing a work day to help ourselves, we demand an accounting from others and an explanation as to why bond money went for other baseball diamonds instead of my soccer fields. I’m thinking to myself, why don’t those interested in soccer buy some pre-emergent to kill the grass burrs, get a load of dirt and some wheelbarrows and shovels to fill the holes and rake up the rocks. This might take a full day with a light turnout. Instead, this guy sees himself as the champion of the Soccer saga because he has taken the initiative to call in and demand answers as to why someone else won’t solve his kid’s problems. Not that my advice has ever been that sought after, but my advice to all parents out there who are raising children, is to get them personally involved with you in some activity or project that is for the benefit of others. Teach them to be “givers” and let them learn to recognize and reject being a “taker”. As for the guy on the radio, I don’t think I could ever convince him who is really accountable for the lack of good soccer fields in Lubbock or the effect such lack of accountability is having on his suffering child. GOD HELP US ALL* *Since we probably won’t help ourselves.

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Why Won’t Somebody Else Solve My Problems?

by Craig Brummett Last summer I was driving and listening to some local talk radio show. A caller had phoned in and was complaining about how bond funds were being used to construct new baseball fields instead of new soccer fields as he claims were promised. His son was a soccer player. He went on to say how rocky the fields were and that there were grass burrs and big holes in the soccer fields. It was a disgrace and our city youth were suffering as a result. He demanded an explanation from the City and an accountability as to why this had happened. I wanted to pick up the phone and tell this guy who was accountable. At least I knew who used to be accountable because I had witnessed it first hand. The year was 1954. Television was still more test pattern than broadcast. I was nine years old and my older brother, Phil, was twelve. While there were city parks and Mackenzie State Park, there were few if any baseball fields for the City youth. The Lubbock Hubbers had been a local semi pro club as I recall. Rather than look to the government to provide the funds and labor to build a ball park through bonds or otherwise, many parents and energetic members of that Greatest Generation, convened and got organized and set out to build their kids and any other kid who wanted to play baseball, a baseball park. It came to be known as Southern Little and Pony League. I was looking through a scrapbook my mother put together during that time. The ballpark was to be located on the Northeast corner of what is now K.N. Clapp Park around 40th and Ave. U. This was on the edge of town and the edge of a large playa lake that was notorious for flooding. The owner had given his permission to use the land for the park. There was not enough money to purchase prime land needed for both a Little League and a Pony League ballpark so this was the best they could do. A long list of local merchants donated materials and equipment. “Membership” cards were printed and sold to anyone who was willing to contribute. The kids and their parents worked hard at selling memberships. The labor was provided by the parents and kids. There would be scheduled work days usually on weekends when the parents and kids would meet at the park site and do everything from raking rocks to chopping weeds, building fences, planting grass, digging dug outs, laying brick, building the score board, painting the whole nine yards. A dyke was constructed to keep the lake from flooding the fields, although it didn’t always hold the water back. When a work weekend was over, everyone went home tired but excited. The ball park was finished and there was a grand opening ceremony complete with the Mayor making a speech and all the players, wearing complete uniforms, not just team “T” shirts, were there and their parents. It was a great day. Initially, there was just the Little League field and a field for the minor league. Over 250 kids signed up to play. The bleachers seated 500 people, and the largest came from the old Hubber Ball Park. I also remember everyone having a great deal of pride and satisfaction in having had a part in building a really nice ballpark. That park continued in existence for many, many years and provided thousands of kids and families great entertainment, activity and wholesome fun. I still remember those beautiful summer nights watching or playing baseball under the lights. It operated on donations. Someone passed the hat every night and there was a concession stand run by parents. Foul balls got a snow cone. I also remember the time when the guy who gave his permission to build the field on his weedy playa lake ground put a “For Sale” sign on the infield grass. From that, I learned the meaning of “takers” in our society. I also remember Kuykendall-Bennett Chevrolet then purchasing the land and donating it to Southern Little League. From that, I learned the meaning of “givers” in our society.

As I grew a little older, I remember my Dad dropping me off at the ball park while it was still cool in the morning with a lawn mower and plenty of gas so that I could mow both the Little and Pony League fields. He would stop by

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What is truly remarkable and a testament to Bobbie’s drive to learn and excel, is that she elected to go to law school even after being admitted to practice. She was a member of the first graduating class at Texas Tech Law School, graduating with her Doctor of Jurisprudence in 1969. Bobbie was a member of the State Bar of Texas, the Lubbock County Bar Association and a former president of the Lubbock County Women Lawyers Association. She was honored by that organization in 2002 and retired at the end of that year. She regularly met with the Saturday Morning Breakfast Club, a group of lawyers who are military veterans. In 2003 she was honored by the Lubbock County Bar Association as the James G. Denton Distinguished Senior Lawyer of the Year. Although she was very busy in her law practice, Barbara found or made time for a myriad of interests. She had a great breadth of knowledge on many subjects. Bobbie loved gardening and genealogy. Her garden covered her entire yard and her children were not allowed to play there for fear of damaging the plants. Even in her later years, a visitor would be given a full tour of her prized plants, and well into her 80’s she would dig specimens to share with her guests. Her many activities included the Southwest Group, the South Plains Iris Society, the Tech Terrace Neighborhood Association, and she was a founding member of the Tech Terrace Gardening Club. She was a 40-year member of the First Baptist Church of Lubbock and taught Sunday school there. She had a lifelong curiosity and interest in knowledge and growth. Barbara was known for her integrity and diligence. Her practice included many family law cases, and always foremost in her mind was what was best for the family and most particularly, the children. While she was ever courteous to opposing counsel, she was a zealous advocate. Bobbie was goal and purpose driven. Ultimately, she was completely committed to her husband, her family, and her law practice. Her care for Charlie in his later years helped to extend his longevity and quality of life. She always had a story to tell and it was a pleasure to be in her company. Her wry smile and dry wit will be missed by many. Bobbie is survived by three sons, John Albert Benson, Mike E. Benson, Dusty Benson, and a daughter, Darla Granberry, M.D. She is also survived by eleven grandchildren, six great-grandchildren, all much beloved. She was preceded in death by her husband, Charles, and a daughter, Darla Jean. She is also survived by a brother, Robert Gowing and a sister, Carolyn Lockett, and by a host of friends and fellow lawyers who deeply regret her passing.

Karen Mitchell,  the Clerk  for  the United  States District  Court  for  the Northern District of Texas, will conduct a  JURY UTILIZATION SEMINAR on March 31, 2009  from 11:30  a.m.  to  1  p.m.  at  the  U.S.  District  Clerk's  office  in  Lubbock,  Texas.    All attorneys and staff are invited to participate in this presentation, which will walk you through the entire juror experience, in order to give feedback to the court on suggested changes to improve the experience for jurors in federal court. 

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Cases and Comments from the Seventh Court of Appeals

by The Honorable Judge Quinn

Though once numerous, claims founded upon gender and age discrimination have diminished over the years. But, every once in a while, one appears on our docket. In Ptomey v. Texas Tech University, No. 07-06-0332-CV (Tex. App.–Amarillo January 20, 2009), Ptomey sued the University because it purportedly terminated her employment on the basis of her gender and age. Since her age and gender satisfied the minimal burden needed to establish a prima facie case of discrimination, the University was obligated to proffer a legitimate reason for letting her go. That reason consisted of the elimination of her job via a reduction-in-force. And, while there may have been some tension between Ptomey and others in the workplace, that did not render pretextual the explanation given by the University for releasing her. Not every issue raised on appeal has merit, as practitioners know. So, conceding the viability of issues is welcomed by the court. It makes our job easier. Yet, admitting error may not be accurate either. In Nottingham v. State, 07-08-0131-CR (Tex. App.–Amarillo January 30, 2009), both the appellant and State argued that the trial court’s decision to omit a lesser included offense of simple assault from its charge was error. We disagreed because Nottingham had been indicted for robbery and nothing in the record suggested that the assault occurred at a time other than when the accused was trying to steal the property. So, the test for receiving an instruction on the lesser offense (i.e. if appellant is guilty, he is guilty of only the lesser offense) was not satisfied. In short, conceding error is laudable, but we are not bound by the concession. Inhabitable or uninhabitable, that is the question (sorry Hamlet). Or, to be habitable, must an addition to a house be finished if the occupant can otherwise live in it? That was the issue in Mathis v. William A Carter, Trustee, 07-07-0390-CV (Tex. App.–Amarillo January 15, 2009). Since the house was trust property and Carter, as trustee, was obligated to pay for “taxes and upkeep” related to the house, Mathis (who inherited a “right to live in the house” for his life), wanted Carter to finish the construction. Yet, the testator did not define what she meant by “live” or “upkeep.” So, we turned to the common definitions of those words. And, when we did, we concluded that the trustee’s duty was only to maintain the house in a habitable shape. Finally, because 1) the decedent actually lived in the house while the construction was ongoing, 2) the incomplete work could easily be secluded from the original portion of the home, and 3) the original portion had functional utilities, heat, air conditioning, sewer system, bedrooms, living areas and kitchen, the trustee had no duty to complete the addition.

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by Craig Brummett

WHY WON’T SOMEBODY ELSE SOLVE MY PROBLEMS

On Friday, the 1st day of May, 2009 LAW DAY 2009 – A LEGACY OF LIBERTY

CELEBRATING LINCOLN’S BICENTENNIAL

(Watch for your Invitation in early April 2009)

If you are interested in sponsoring the 51st Annual Law Day, please contact Michael Wysocki at 765-7491.