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Return to Contents CONGRATULATIONS ARE IN ORDER Two District 3 (Fort Worth) members were honored at the Fort Worth Paralegal Association’s annual Holiday Luncheon held on December 7, 2006. Julie K. Sherman, TBLS, was chosen as Paralegal of the Year; and Debbie House, CP, received the Volunteer of the Year award. Julie has 21 years experience as a parale­gal and, since 1996, has been employed by Cantey Hanger in its litigation section. She is an extremely active member of FWPA, having served on its board for many years. Debbie is a real estate paralegal with Beadles, Newman & Lawler, PC. She has served as the Paralegal Division of the State Bar, District 3 Director for the past three years. She is currently President­Elect of FWPA and has served on its board since 2001. Legislative and Case Law Updates 2006 Third Party Dram Shop Liability On November 3, the Texas Supreme Court withdrew its prior opinion in F. F. P Operating Partners L.P. v. Duenez, No. 02-0381, 2004 WL 1966008 (Tex. Sep. 3, 2004) and issued a new opinion regarding the interplay between the Dram Shop Act and the Proportionate Responsibility Statute. The majority’s rationale is that imposing liability on the dram shop for the conduct of the drunk conflicts with the Proportionate Responsibility Statute. The court points out that a dram shop should only be held jointly and severally responsi­ble if it is greater than 50 percent responsi­ble. Further, the court notes that a funda­mental tenet of tort law rests on the prem­ise that liability stems only from one’s own conduct. Finally, the court reasons that the Dram Shop Act’s intent to deter providers from serving obviously intoxicated indi­viduals is still being accomplished because, among other reasons, the provider is still subject to having its license to serve alco­hol revoked. If You Think You’ve Mastered the Nuances of HIPAA, Think Again (and Other Issues in Personal Injury/Medical Malpractice Cases) By Heidi Beginski T he following is a very brief synopsis of some of the significant legal developments in Texas during the past year. This summary is not exhaustive in either the topics included nor the breadth of scope of changes to each topic, but will provide some general information in areas of interest to paralegals. Life, Taxes and Other Inevitables Calling Children to Testify Chapter 104 of the Family Code provides several methods to procure testimony which attempt to significantly insulate children from the emotional distress of having to face a parent in the courtroom. These provisions made admissible a recorded audio statement and also allow the recorded video testimony of a child. Remote televised broadcast of a child’s tes­timony is also admissible. But note that Section 104.005 actually prohibits a child from being compelled to testify if any of these other methods are used. Redefining Covenants Not to Compete In late October, the Texas Supreme Court issued Alex Sheshunoff Mgmt Svcs v. Johnson, 2006 WL 2997287 (Tex. Oct. 20, 2006), the court held that a non-compete covenant is not initially enforceable against an at-will employee if the employer has no corresponding enforceable obliga­tion, but it becomes enforceable when the employer performs the promises it made in exchange for the covenant. An Expanded Business Tax In May 2006, Governor Rick Perry signed into law an expanded business tax, com­monly known as the new Texas margin tax. The bill replaces the franchise tax. As a result, many businesses and professionals that paid no franchise tax, including some law firms, must now pay. First returns are not due until May 2008, but many taxpay­ers began accruing liability for the tax on January 1, 2007. HIPPAA Enforcement Effective March 16, the secretary of Health and Human Services adopted rules for the imposition of civil money penalties on entities that violate the rules implementing the administrative simplification provi­sions of the Health Insurance Portability and Accountability Act (HIPAA). The final rule amended the previously existing rules relating to the investigation of noncompli-ance to make them apply to all of the HIPAA administrative simplification rules, rather than exclusively to the privacy stan­dards. The final rule also amended the rules relating to the process for imposition of civil money penalties and elaborates on the investigation process, bases for liabili­ty, determination of the penalty amount, grounds for waiver, conduct of the hear­ing, and the appeal process. Paid v. Incurred CPRC section 41.0105 included a change regarding damages in personal injury cases. The statute reads, “….recovery of medical or healthcare expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” There is debate as to what this law means. The distinction is important. Plaintiffs’ attorneys may assert that gross medical bills are incurred by the plaintiff, making gross medical bills recoverable with the Collateral Source Rule intact. Defendants may argue that this law eliminates the Collateral Source Rule completely. If a defendant gets the benefit of reduced medical bills, it reduces the value of the case. Non-Economic Damages in Medical Malpractice You’ve probably heard of this one: the non-economic damage caps under the medical liability statute. In a medical mal­practice case, under CPRC section 74.301, doctors and nurses can only be held liable for non-economic damages up to $250,000. Up to two institutional defen­dants, such as hospitals or nursing homes, can allow for an additional $250,000 each. That allows for a maximum possible bene­fit of $750,000, provided the case has the combination of defendants necessary. The Long Arm of the … Board Texas Medical Board Changes The Texas Medical Board adopted numer­ous changes to its rules in 2006, many of which were intended to implement changes made to the Texas Medical Practice Act in the previous legislative ses­sion. For example, effective May 1, the rules regarding acupuncture (Chapter 183) were revised extensively. Effective June 29, PARALEGAL DIVISION VOTE 2007 District Director Elections Bylaws Amendments District Director Elections: The PD’s SIXTH ONLINE ELECTION will take place April 17, 2007 through May 2, 2007. The election of dis­trict directors to the Board of Directors will be held in odd-numbered districts (Districts 1, 3, 5, 7, 11, 13, and 15). Bylaws Amendments: All Active members as can vote for or against the pro­posed Bylaws Amendment(s) of the Division. For an explanation of the proposed Bylaws amendments, please go to http://txpd.org/TPJ/46/etal04.asp. All active members of the PD in good standing as of February 1, 2007 are eligible to vote. All voting must be completed on or before 11:59 p.m., May 2, 2007. Please take a few minutes to logon to the PD’s website and cast your vote for your district’s director (only odd-numbered districts vote in 2007). The process is fast, easy, anonymous, and secure. •    Between April 17th and May 2nd, go to www.txpd.org •    In the Member-Only section, click on “Vote” •    Follow the instructions to login and vote (you will need your bar card number in order to vote). If you do not have access to the Internet at home or the office, you can access the TX-PD website at your local library. No ballots will be mailed to members as all vot­ing will be online. A postcard will be mailed to each Active voting member in April giving notification of the voting period. If you need any further information, contact the Elections Chair, Jennifer Fielder at jfield-er@riewelaw.com. TAKE THE TIME, MAKE YOUR VOICE HEARD! the rules regarding office-based anesthesia (Chapter 192) were significantly modified to expand the application of the Board’s office-based anesthesia regulations to the outpatient setting under certain circum­stances. In addition, a new rule (199.5) was added, which requires physicians to notify the Texas Department of State Health Services of any ownership in a niche hos­pital. Criminal Law Testimonial Statements The Supreme Court clarified the scope of testimonial statements under Crawford v. Washington, 541 U.S. 36 (2004): “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interroga­tion is to enable police assistance to meet an ongoing emergency. They are testimo­nial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” The Supreme Court also observed that 911 operators, while not themselves law enforcement officers, may at least be agents of law enforcement when they conduct interro­gation of 911 callers. Other Decisions by the Supreme Court Hyundai Motor Co. v. Vasquez was brought by the parents of a 4-year-old killed in an automobile accident. During voir dire, the trial judge refused to allow the plaintiffs’ lawyers to ask potential jurors whether they could consider rendering a verdict for the plaintiffs even though the child was not wearing a seat belt. In a 6-3 decision, the court held that a trial court may refuse to allow a voir dire question that asks potential jurors whether a particular piece of relevant evidence will determine their verdict. In Took e v. Ci ty of Me x i a the court ruled that Texas statutes and municipal charters providing that a government enti­ty may “sue or be sued” do not, in and of themselves, waive immunity from suit. In Hoover Slovacek L.L.P. v. Walton, the court ruled that a payment-on-termina-tion provision in an attorney’s contingent fee contract is contrary to public policy and unenforceable. In re Palacios, the court found that an order compelling arbitration under the Federal Arbitration Act ordinarily is not subject to mandamus review. In Feiss v. State Farm Lloyds, the court held that the standard Homeowners Form B insurance policy does not cover losses caused by mold. In GuideOne Elite Insurance Co. v. Fielder Road Baptist Church, the court held that an insurance company’s obligation to defend its insured ordinarily must be determined from the “eight corners” of the policy and the plaintiff ’s petition, even if extrinsic evidence establishes that the allegations in the petition are false. Heidi Beginski, Board Certified Legal Assistant-Personal Injury Trial Law-Texas Board of Legal Specialization, Member, Professional Development Committee, Technology Update By Sharon D. Taylor Paralegal Division, State Bar of Texas District 16, Rincon, Mounts, P.C., 1014 N. Mesa, Suite 200, El Paso, TX 79902 V ISTA – the successor to Windows XP, and after 5-years efforts, is finally complete. Vista is a major Windows update with lots of new features. Microsoft describes it as “Confident, Clear and Connected.” But will law firms be rushing to upgrade? While Vista’s appearance is beautiful with new typeface and animation to liven up the experience, the more important improvements are its security, stability, ease of implementation, support and improved performance. However, unless your PC is relatively new, chances are it won’t have adequate processing power, graphics capability and memory to run Vista. For most of us, migrating our PCs to Vista will mean updated drivers for our printers, Ethernet card, audio card and other hardware, not to mention we will have to deal with incompatible programs. We may also have to relearn how to use our PC’s operating system. Microsoft says businesses will find it easier for companies to deploy on multiple PCs and it will save costs by reducing the number of times computers will have to be rebooted. Vista Business includes Windows Meeting Space, used for setting up secure ad hoc wireless peer-to-peer meetings or collaboration sessions. Vista can support the new Hybrid Hard Drives. The biggest selling point for businesses is the fact that Vista can help reduce inter­ruptions and help desk calls. When a sys­tem error occurs caused by an application or device, Vista will automatically attempt to heal itself, avoiding user interruptions and help desk calls. Before upgrading to Vista, you can go online and use Microsoft Vista’s Upgrade Advisor on your current PC to inventory your current hardware and determine which version of Vista is best-suited for you. Microsoft offers six version of Vista: (i) Vista Ultimate (Best), (ii) Vista Enterprise (only for software assurance or enterprise agreement customers), (iii) Vista Business, (iv) Vista Home Premium, (v) Vista Home Basic, and (vi) Vista Starter. Its top 10 features are: (1) Stunning Graphics, (2) User Account Control, (3) Shadow Copy (without a File Server), (4) Internet Explorer 7, (5) Windows Defender, (6) SuperFetch, (7) Network Center, (8) Metro, (9) Windows Search with Vista, and (10) Security. For more on these features, please visit Microsoft online. Vista is not a fancier version of XP. It is a much-improved operating system with a better user interface, more intelligent navi­gation, more powerful file-manipulation tools and built-in applications that will provide greater efficiency. However, the decision to upgrade now or wait depends on the firm and the age of its PCs. The pros include the beautiful user interface and security improvements, while the cons include significant hardware requirements and compatibility issues with current hardware and software. For XP users, Microsoft recently announced that Service Pack 3 will be released in 2008. XP will continue to be significantly used for the next few years, but with less priority. Looking back at past Microsoft Windows transitions, we can expect most third-party applications to be available for XP users for quite some time. Sharon D. Taylor, CP,TBLS, NALA Certified Paralegal; Board Certified Paralegal — Civil Trial Law, Texas Board of Legal Specialization; Chair, Professional Development Committee, Paralegal Division, State Bar of Texas; Co-Sub-Chair, Public Relations Committee, District 1, Paralegal Division, State Bar of Texas, Boyar & Miller, 4265 San Felipe, Suite 1200, Houston, Texas 77027 TRACKING THOSE CLE CREDITS Norma Hackler, CMP, Coordinator, Paralegal Division/State Bar of Texas your attendance at a CLE event. Build a personal CLE file by year of attendance. Include in this file any self-study [CLE hours] that may be accepted as continuing legal education by the various certifying entities or organizations. If you have any questions regarding the number of CLE hours you receive for a particular seminar, please contact the sponsoring agent within the six months following the event. As time goes by, it may be difficult for the sponsoring agent to offer assistance because of the ability to keep records on file. It is up to you to make the contact within a reasonable period of time. The sponsoring agent is not responsible for T he task of tracking one’s attendance and completion of continuing legal education (CLE) programs has become a monumental task for most paralegals. Different CLE attendance requirements among the various certification programs and paralegal organizations have become a maze to those individuals who have suc­cessfully completed more than one certifi­cation examination or proving CLE atten- dance to continue their membership with paralegal organizations [specifically the Paralegal Division of the State Bar of Texas]. Hopefully, this article will assist you in keeping up with the different edu­cational seminars you have attended. The most important task is to keep a copy of all brochures, attendance certificates, and any other materials issued by the sponsoring agent of the seminar proving keeping a record of your CLE attendance. Below is a summary of the different certi­fying organizations and the Paralegal Division and their requirements for track­ing CLE: Texas Board of Legal Specialization (TBLS) To prove CLE hours to TBLS, the sponsor­ing agent should apply for credit directly to the Texas Board of Legal Specialization. If credit is issued by TBLS, the sponsoring agent will distribute to each seminar attendee a “Certificate of CLE Attendance for Paralegals” at the seminar being attend­ed. This Certificate will have a place for the number of hours attended and should be signed by the sponsoring agent. If you are a TBLS board certified legal assistant and have received a TBLS file number, you may send a copy of the certificate to the Texas Board of Legal Specialization at P. O. Box 12487, Austin, TX 78711 to be placed in your record file. Keep a copy of this certificate in your personal CLE file along with a copy of the seminar brochure. If you are not yet board certified but plan to take the board certification examination, keep this Certificate in your personal CLE file along with a copy of the CLE brochure. For more information regarding the TBLS examina­tion and requirements, please contact TBLS at 512/463-1463, ext. 1454 or 1-800-204-2222, ext. 1454 or visit their web site at www.tbls.org. National Association of Legal Assistants (NALA) To prove CLE hours to NALA, the spon­soring agent may or may not distribute a NALA Certificate of Attendance form to seminar attendees. Most sponsoring agents for paralegal continuing legal education will have the forms on site. This form can be received directly from NALA and brought to the seminar by the attendee. The Certificate must be signed by the sponsoring agent at the seminar. It is wise to attach a copy of the brochure (or list of topics attended) to the NALA Certificate of Attendance to forward to NALA for CLE credit hours. For more information regarding keeping track of CLE for NALA, please contact NALA at 918/587-6828 or visit their web site at www.nala.org. National Federation of Paralegal Associations (NFPA) To prove CLE hours to NFPA can be accomplished by one of two ways. The sponsoring agent may or may not forward a list of attendees to the NFPA’s continu­ing legal education chairperson stating your attendance at a seminar. Please ask the sponsoring agent at the seminar if they will be forwarding a list of names to NFPA for CLE credit. If the sponsoring agent does not forward a list [check with semi­nar sponsor on site], you may forward a copy of the brochure and any certificate of attendance that you received at the semi­nar. It is wise to attach a copy of the brochure to the certificate that is forward­ed to NFPA for CLE credit hours. For more information regarding keeping track of CLE for NFPA, please contact NFPA at 206.652.4120 or visit their web site at www.paralegals.org. State Bar of Texas Minimum Continuing Legal Education (MCLE) Department As most of you are aware, the MCLE Department of the State Bar of Texas keeps track of all attorney CLE hours [this is the purpose of the MCLE Department]. This State Bar Department will also keep track of CLE hours for paralegals who are members of the Division and who have attended a seminar that is approved for MCLE credit. In order for a seminar to be approved by the MCLE Department of the State Bar of Texas, the seminar must be targeted primarily to attorneys. Seminars [targeted primarily to paralegals] that are sponsored by various organizations/com­panies may not meet the criteria for MCLE approval and attendance at non-approved MCLE seminars will not be tracked for Paralegal Division members. If the sponsoring agent distributes the State Bar computer cards at the seminar, it will indicate the seminar was approved by the MCLE Department. If you attend a semi­nar that has been approved for MCLE credit, please complete the MCLE com­puter card and return it to the staff person on-site. This information will be entered into the MCLE Department computer database. In order to receive a print-out of the CLE hours you have attended [approved by the MCLE Department], you must forward a check in the amount of $5.00 to the MCLE Department at P. O. Box 13007, Austin, TX 78711. Please call the MCLE Department at 1/800-204-2222, ext. 2118 or 512/463-1463, ext. 2118 with any questions. Paralegal Division (PD) – ACTIVE AND ASSOCIATE PD MEMBERS ONLY State Bar of Texas To prove CLE hours to the Paralegal Division to renew as an Active or Associate member, the member is required to com­plete (list the courses attended or viewed for self-study) the CLE Reporting Form on back of the Membership Renewal Form. Please do not attach any certificates to this form. The information requested on this form is the date of the seminar or online course, name of the sponsor of the CLE, CLE topic/speaker location, receipt of attendance form, CLE accrediting organization, and the number of CLE hours. The Paralegal Division suggests each member keep a copy of the CLE Attendance Certificate in your personal CLE file along with a copy of the seminar brochure. The CLE Reporting Form must be signed and dated the member as well as a notary public before submission to the Paralegal Division. The CLE that is accept­ed by the Paralegal Division is as listed below: Mandatory CLE Requirement by the Paralegal Division Active and Associate members must com­plete six (6) hours of substantive continu­ing legal education by May 31 of the mem­bership year. Substantive continuing legal education completed during any member­ship year in excess of the minimum six (6) hour requirement for such period may be applied to the following membership year’s requirement. The carryover provi­sion applies to one (1) year only. Members are allowed no more than two (2) hours of self-study during each membership year. Members must report their CLE on a form approved by the Division. The Division will use the following criteria for approval of continuing education courses for credit towards mandatory CLE requirements for IMPORTANT ANNOUNCEMENT 2007–2008 MEMBERSHIP RENEWALS T he 2007-2008 membership renewals will be mailed to the current members of the Paralegal Division in March/April 2007. Renewals will be accepted beginning April, 2007; renewals received on or after August 1 requires a $20 late fee in addition to the normal dues payment; any renewal received on or after October 1 will be returned to you and not processed. No exceptions for these deadline dates. Please make sure your address is correct on the Paralegal Division’s membership roster (procedure located at http://txpd. org/page.asp?p=Address%20Change). All ACTIVE and ASSOCIATE members must obtain 6 hours of CLE by May 31 to renew membership in the Paralegal Division for 2007-2008. If you are working as a paralegal and currently an Active or Associate member, the CLE require­ment is mandatory to continue membership in the Paralegal Division. Below pertains to Active and Associate membership renewals: Substantive continuing legal education completed during any membership year in excess of the minimum six (6) hour requirement for such period may be applied to the following membership year’s requirement. The carryover provision applies to one (1) year only. Members are allowed no more than two (2) hours of self-study during each membership year. Members must report their CLE on a form approved by the Division. The Division will use the following criteria for approval of continuing education courses for credit towards mandatory CLE requirements for membership: a.   The Division will accept substantive law CLE presented or approved by the MCLE Department of the State Bar of Texas, the Texas Board of Legal Specialization, the National Association of Legal Assistants, the National Federation of Paralegal Associations, and/or presented by the Paralegal Division, local bar associations, paralegal associations, or law firms for credit towards the Paralegal Division manda­tory membership renewal CLE requirement. b.  If the CLE course is not accredited by any of the above-ref­erenced groups, the Division will accept a seminar, if it is a substantive law course offered by a qualified presenter that would qualify for approval if submitted to one of the above organizations. “Substantive Law Course” means an organ­ized program of legal education dealing with: i. substantive or procedural subjects of law; ii. legal skills and techniques; iii. legal ethics and/or legal professional responsibility; or iv. alternative dispute resolution. Additionally, law office management programs accredit­ed by the State Bar of Texas will be accepted. A “Qualified Presenter” means an attorney, judge, or Paralegal/paralegal who is familiar with the topic pre­sented, or an expert in the particular subject matter comprising the course. c.   Speaking and writing credit will be considered for approval under the same criteria as (a) and (b) above. IMPORTANT NEWS Continuing Legal Education ONLINE CLE The Paralegal Division offers online CLE via the PD website. To participate in online CLE, please go to www.txpd.org and select CLE/Events. CLE REQUIREMENT ACTIVE AND ASSOCIATE members of the Paralegal Division are required to obtain six (6) hours of CLE (2 of which can be self-study). CLE hours must be obtained between June 1 – May 31 of each year. CLE CALENDAR A statewide CLE calendar can be found on the PD website at ww.txpd.org under Upcoming Events/CLE. You can find a variety of CLE programs offered around the State. Please check the PD website often because the calendar is updated weekly. Membership Information CHANGES TO MEMBER INFORMATION Paralegal Division members can now change their credentials, addresses, email addresses, preferred mailing address and/or phone numbers via the State Bar of Texas website. Go to www.texasbar.com; click on MyBarPage (top of home page). If you have never visited this page, you will need to set up a pin/password. Your pass­word to set up your NEW Pin/password is the last four digits of your social security number (if the State Bar does NOT have your social security number on file, you will not be able to use this area nor will you have access to MyBarPage); once you set up the new pin/password, you will be able to enter this section of the website to update your member records. If you have any problem accessing this page, please contact the Membership Department at 1/800-204-2222, ext. 1383. MEMBERSHIP CERTIFICATE (Active Members Only) Need to replace your Active membership certificate? Please complete the order form found on www.txpd.org under Members-Only area and follow instruc­tions. The cost to replace an Active Membership Certificate is $15.00. MEMBERSHIP CARD Need to replace your membership card? Please send $5.00 made payable to the Paralegal Division along with a letter requesting a new membership card to the Membership Department, State Bar of Texas, P. O. Box 12487, Austin, TX 78711. Were you ever issued a membership card? If no, please contact the Membership Department of the State Bar of Texas at 1/800/204.2222, ext. 1383 or email at rcar-bajal@texasbar.com. DELL COMPUTER DISCOUNT The number assigned to the Paralegal Division by Dell Computer Corp is: SS2453215. This is the number you should use to receive the 10% discount for pur­chase of computers. However, Dell does not have the 10% discount special contin­uously. Dell sends a notice when the dis­count is offered to our members at which time it is forwarded to the PD members via the PD E-group. Yo u may try to use this number anytime, but there are no guarantees that you may receive the dis­count at the time of access. Notices will continue to be forwarded to the PD E-Group when the discount is offered by Dell Computer Corporation. PD Website Information MEMBER DIRECTORY ONLINE A membership directory is set up on the PD website under the Members Only area. By default, your membership information is listed in the online membership directo­ry. If you would like to suppress showing your listing to other members, go to the Members Only “Edit My Profile” function to display your listing and then uncheck the “publication” box. If you haven’t already done so, you might want to include info about adding member spe­cialties through the same interface. If you need changes made to the online member­ship directory, you must make those changes using the procedures set out in the CHANGES TO MEMBER INFORMA­TION procedures located on this page. MEMBERS ONLY AREA The Members Only area of the PD website is for current members of PD only. If you are a member of the Paralegal Division and cannot access this area, please send an email to pd@txpd.org with your particular problem. Access is automatically given to members of the Paralegal Division. Access to the members-only area is available within two weeks from the date of the acceptance notice mailed to the individual by the Paralegal Division Coordinator. PD E-GROUP How do I sign up for the PD E-Group? Going to trial in a “foreign” jurisdiction and want some tips from those who have gone before? Need a form but do not know where to turn? Then you need to sign up for the PD E-group! This is a members-only group and a benefit of being a member of the Paralegal Assistants Division (PD). To sign up, go to www.txpd.org, click on Members-Only and choose E-Group. There will be directions on how to sign up. Yo u will be required to respond to an email confirmation. Once you have com­pleted the signed up, you will begin receiv­ing emails from the members of PD. For those who prefer not to be interrupted with email notifications, select “digest” for the PD email exchange. Emails are collect­ed and distributed one time a day in one email. How Do I change my PD E-group email address? Instructions: The PD E-Group created by the member is Password-protected, only the member has access to change a member’s PD E-Group email. Go to www.txpd.org, click on Members-Only (access by USER ID and Password), click on PD E-Group, enter your E-Group password, unsubscribe the current email address, and create a new email address where you want to receive your PD E-Group messages. You will be required to respond to an email confir­mation. Texas Paralegal Journal © Copyright 2007 by the Paralegal Division, State Bar of Texas. Top of Page

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