A new set of laws has just been enacted by the 88th Texas Legislature, and the September 2023 edition of the Texas Bar Journal is chock full of informative articles on these changes. To look at some of these laws in greater detail, Rocky Dhir welcomes Kristal Thomson and Jerry Bullard to discuss their articles on the areas of family law and civil litigation/appellate law, respectively. Tune in to keep ahead of the latest updates! Kristal explains what did and didn’t change for the Texas Family Code and other updates for family lawyers, and Jerry offers pertinent information for civil trial and appellate practitioners.
Kristal C. Thomson is a partner in the family law practice group of the firm Langley & Banack in San Antonio.
Jerry D. Bullard is a shareholder in the Grapevine firm of Adams, Lynch & Loftin.
Special thanks to our
Rocky Dhir: We’d like to thank Clio for their generous sponsorship of this podcast.
Female: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.
Rocky Dhir: Hi, and welcome to the State Bar of Texas Podcast. Every couple of years in September, we lawyers welcome a new set of laws enacted by the Texas Legislature. If you’re like me, you don’t really think about it or pay much attention to it until you hit an issue where the law has changed, and then you run around like a crazy person trying to figure out what that change was, what it means, and how you keep yourself out of trouble. Or, you can be like lots of other Texas lawyers and read up on upcoming changes in the Texas Bar Journal. Or, you can be like my guest today and actually get ahead of the issues and maybe even write about them in the Texas Bar Journal.
When you open up your September 2023 edition of the Bar Journal, you will notice that it is chock-full of informative updates and new pieces of legislation. You probably won’t notice it right away, though, because, well, first you’ll read the humor column in the back and then peek at the disciplinary actions, but pretend that you were reading about colleagues who are “on the move” it’s okay. We all do it. Once you’re done with those, though, do check out those updates. We’ll be talking about two of those updates today with the authors who wrote them.
Jerry Bullard is board certified in appellate law and practices in Grapevine, Texas, at the firm of Adams, Lynch & Loftin. We could not have picked a better source. Of course, he is past chair of this State Bar appellate section. He wrote the update on civil litigation and appellate law. Be sure and check it out. Now, all lawyers know the drill. It’s a Labor Day barbecue. You get asked a legal question, and there’s a decent chance the question is a family law question. We all have it happen. We know. Well, Kristal Thomson is here to update us on family law changes from the legislature so you can sound really smart to all your family and friends.
Now, Kristal practices in San Antonio, at Langley & Bannack, where she is board certified in family law and is the president elect of the Texas Academy of Family Law Specialists. We have a couple of heavy hitters here today, folks. So, Jerry and Crystal, welcome to the podcast.
Jerry D. Bullard: Thank you for having us.
Kristal C. Thomson: I appreciate being here.
Rocky Dhir: Absolutely. So, first of all, I got to ask both of you, what prompted you guys to go through and actually write these articles? I mean, this is not like a fun article to write. This is heavy stuff. What kind of inspired you to say, all right, I’m going to go write about legislative updates and go through statutory changes and actually write about it?
Kristal C. Thomson: Well, for almost 15 years now, I’ve been a part of what first started with the family law council. Like Jerry, I’m a former chair of the family law section in State Bar of Texas. And we, once upon a time, before the McDonald case, had a legislative committee that helped draft, analyze, educate on new Texas family law statutes. And unlike Jerry, I’m a one trick pony. I only do family law. I stay in the family code. I have blinders on as it relates to everything else. And so I have been involved in the legislative process in one fashion or another for the last 15 years. More recently, we’ve shifted our legislative efforts over to the Texas Family Law Foundation where I’m a co-chair with Judge Jack Marr and the Legislative Committee.
Rocky Dhir: Interesting. Okay, Jerry. How about you? Because I mean, this makes you look kind of nerdy. Let’s just be honest, I mean.
Jerry D. Bullard: Well, and I’ll tell you, I embrace the nerdiness. So Kristal does a great job of keeping track of the family law changes. And of course, we have lots of sections who do just what she does and what I do, I got started actually keeping track of legislative changes, whether they change or not. Bill is going through the process back in 2004, I think it was, when I started monitoring legislation for the judiciary and some civil lawyers up in the Dallas Fort Worth area that wanted to keep track about what was going on. And so I started doing this, like I said, 2004 and it’s kind of evolved into where I just monitored everything I could related to civil justice, judiciary, appellate. So I cover a little bit more territory than Kristal does, but I gladly stay away from Kristal’s (00:04:24) because that’s a whole different world. And so I’ve been doing this for quite a while, and I do an update throughout each legislative session that I email to those who are on my list. And that could be judges, that can be trial lawyers, appellate lawyers, legislative staffers are on the list. I’ve been doing this for a long time. So all that to say, it’s easy for me to convert my little updates throughout the session into an article. So it’s easy to do. That’s a long-winded answer, but that’s why Ido what I do, and I like doing it.
Rocky Dhir: Well, we appreciate and it’s interesting reading through the updates. It looks know for non-lawyers, I don’t know if the word exciting would necessarily be the appropriate word.
But for lawyers, there’s a lot going on. I mean, there’s some big updates. So, Jerry, let’s maybe start with some of your updates here. We’ve got big news that a lot of folks might not have been aware of. We’re about to have a new 15th Court of Appeals and a new business trial court system that sounded pretty groundbreaking. So why don’t you walk us through those?
Jerry D. Bullard: To me, this session was a seismic shift in civil trial and appellate practice that we haven’t really seen in a while. Let’s start with the business court proposal that was HB19. There’s been a business court proposal that’s been introduced in the legislature, I think, every session since 2015.
Rocky Dhir: And is this going to be like kind of like how you have a family court? Is this going to be a totally separate set of courts so you’re going to have business judges, or is this going to be a different track within the main county and district courts?
Jerry D. Bullard: This will be a whole new trial court system. And what it does is, in a nutshell, it creates a civil trial court to hear a specific category or series of categories of business-related litigation cases. It could be businesses with disputes with other businesses. It could be shareholder disputes. There are lots of different ways that you can get into this court. But there is an amount in controversy structure, and I have a two tier process. There’s one tier that’s $10 million in controversy and that involves a lot of commercial disputes. There’s a tier 2, which is 5 million in controversy. Those are business governance issues, and so there’s a supplemental jurisdiction deal. So there’s a lot of nuances to this, and I could go on forever, but no one wants to hear me do that. But there’s a lot to this bill.
Rocky Dhir: What’s interesting, though, is it’s a business trial court system that would obviously help businesses get faster resolutions within the court system and maybe avoid things like arbitration or having to settle out. What I didn’t see in the update, and I don’t know if you’ve got any insights on this, I didn’t see anything aimed at consumers helping consumers who have issues with businesses to help them streamline the process, because everybody knows how expensive it can be for a normal consumer to have to go after a business that has wronged them. So do you have any insight on that?
Jerry D. Bullard: Well, this structure was created by design, and if you listen to the testimony that we heard in the House and the Senate, there was intentional to create a structure that deals with these high dollar types of disputes. And there was also concerns among some legislators that, like, the average business owner wouldn’t have to falling to this category because usually when you get in this dispute, you have big law firms on each side, and maybe the smaller business can’t afford that. So there were lots of reasons for that for them to be kind of cut out. Some of it was because the legislators in these smaller areas didn’t want to be a part of it. This was a heavily negotiated bill, even though there have been several proposals in previous sessions.
Rocky Dhir: And what’s with this 15th Court of Appeals that’s going to be in Austin from what the update says but — there’s some nuances to it.
Jerry D. Bullard: Okay, well, that one’s interesting, too. It’s got a history. Every previous business trial court bill or business court bill had a separate Court of Appeals just to hear business disputes. This one did not. And the reason being is because the legislature wanted to create a separate Court of Appeals to hear really specialized disputes involving suits against governmental agencies and also to hear challenges the constitutionality of statutes. But added to this particular bill, the Court of Appeals bill, was the business court appeal. So, yeah, this is something that kind of came out of the past few sessions. So there was going to be another Court of Appeals to handle these specialized state court. But they added the business court appeals to this one. In my opinion, probably to give it more jurisdiction, but also to give it more business, because there was some concern that that other court would not have enough business to justify having new judges, another level of judges to sit on.
Rocky Dhir: Got it. Got it. Well, now, guys, we’re going to come back in just a second. We’re going to talk real quick about there’s been a slight change to the attorney disciplinary procedures and then we’re going to talk about family law. And Kristal’s going to get out her crystal ball, and we’re going to talk about what’s in the offering for that. So stay tuned. Let’s hear from one of our sponsors, and then we will be back in just a couple of minutes.
You know, one of the biggest challenges for lawyers is collecting on their billable work. I wanted to learn more about this, wanted to get some helpful hints. So I called my friend Joshua Lenon, lawyer in residence at Clio, to help give us some insights. So, Joshua, what do we do about this problem?
Joshua Lenon: Yeah. Clio’s Legal Trends Report actually has a lot of information on collections.
We know that the average rate for lawyers in Texas is about $306 an hour, yet almost 25% of that never gets collected. So effectively, we’re giving ourselves, like, a 25% haircut. The one thing that helps with that is setting up online payments. It lets you collect faster. You can bill on the go, and you can even offer a lot more ways of paying the bill, like payment plans.
Rocky Dhir: So you got to go online to do everything these days, including lawyer utilization. Well look, Joshua, thank you. This is great information to learn more about lawyer utilization rate trends. Download Clio’s Legal Trends Report for free at clio.com/trends. That’s clio C-L-I-O.com/trends.
The Texas Lawyers Assistance Program provides confidential help for Texas lawyers, law students, and judges who have problems with substance use and mental health issues. TLAP offers 24/7 confidential support and can connect you to peers and providers for assistance. TLAP can also connect you to the Sheeran-Crowley Lawyer Wellness Trust, which provides financial help to Texas lawyers, law students, and judges who need treatment for substance use, depression, and other mental health issues, but can’t afford to pay for services. Call or text TLAP anytime at 1-800-343 (8527).
And we’re back. Guys, I didn’t think legislative updates would be this interesting, but Jerry and Kristal, you guys make it interesting. Now, Kristal, I do want to hear from you here, and I know our guests do. But Jerry, one quick thing. This could be of some concern to lawyers where they just want to know what’s going on. But it looks like we’ve got a new change, house Bill 5010. That’s going to make a change to the disciplinary procedures. I couldn’t discern how significant this was. It says grievance procedures, some of them can now be called “complaints”. Why is that important?
Jerry D. Bullard: This particular bill was in response largely to the election challenges in 2020.
Rocky Dhir: Okay.
Jerry D. Bullard: There were some concerns as to whether those who had filed grievances against lawyers who participated in those election challenges should have been doing such a thing. And so, there was a concern whether they had standing those who filed the complaints. So this bill actually is intended to streamline, the grievance process a bit, and it essentially creates a standing sort of requirement for those who are filing those complaints. So if someone files a complaint and they have a judiciable interest in that dispute, and there’s a list of those who fit into that category, then it gets characterized as a complaint and then goes through a different process than those who don’t have standing. They’re called inquiries, but someone on the outside looking in. So it does change that process a little bit, and that will be news to a lot of lawyers.
Rocky Dhir: Yeah, I was surprised, and that left me thinking. All right. We got to ask this one to Jerry. So, Jerry, thank you for addressing that. Kristal speaking of attorney discipline. I’ve heard, and you’re probably familiar with this. Family law gets a lot of attorney discipline type of issues coming in, people complaining about their lawyers, or they complain about the other party’s lawyers. So I thought, what a great segue into family law. We just talked about attorney discipline, but you started out your update with saying the 88th Texas Legislature was “a good one” for the Texas family code. You go into all the changes, but why did you love it so much?
Kristal C. Thomson: Well, interestingly enough, I think I loved it for what didn’t get passed, more so than for what did get passed.
Rocky Dhir: Do tell. Do tell. We want the gossip. Okay.
Kristal C. Thomson: You know, you’ve already said it. Everybody has some connection to family law. If you have not had a family law dispute, somebody in your family had, your brother, your sister, or your children. And so, everybody in the Texas Legislature thinks that they know how to do family law, and it turns out much of it is anecdotal to a constituent or the legislature themselves who want to dabble in this little thing that would have affected this one case, they knew. And forgetting about the 99.9% of the other family law cases. So there was a great deal of effort spent on not tinkering with some of our old and steady laws that have served us very well in the family law community.
Rocky Dhir: Okay. So you’re happy that they didn’t over fix it? They didn’t fix what isn’t broken?
Kristal C. Thomson: That’s right.
Rocky Dhir: It looks like one of the most significant changes is in reimbursements. In reimbursements, I guess from one spouse to the other, I’m assuming. And again, I’ve only dabbled in family court when I’ve had to help somebody. But is this referring to when the marital estate is used to effectively better the separate property of one of the spouses? Is that where this arises?
Kristal C. Thomson: Yes. Close. So this was very, very significant. Mostly because it actually goes back to the old common law idea of reimbursement. Our statute, again, had been tinkered with over the years. We used to have this thing called economic contribution, which nobody really knew how to do. Judges and lawyers alike.
Rocky Dhir: I remember that on the bar exam, and it required math. And I was like, I went to law school, so I wouldn’t have to do this. And then they’re like, it’s one third of this, and then I had to relearn calculus. And it was —
Kristal C. Thomson: Yeah, you had a numerator and a denominator and a bunch of family lawyers that didn’t know algebras.
Rocky Dhir: Don’t you be using words like that on this podcast. This is a family podcast. Numerator and denominator.
Kristal C. Thomson: So you started off the podcast talking about nerd law. This is the nerdiest of nerd law that you can possibly get. But another fellow board-certified attorney who Jerry knows. Chris Nicholson and I got to talking about reimbursement. I had a jury trial that had some reimbursement claims, and I was just so frustrated with the way the pattern jury charge was written. It didn’t line up with the way our old case law was going. And, I mean, we’re talking about cases back from the 1900 that have not changed, that haven’t been overturned. And so, we went in and we set about and we changed the pattern jury charge to reflect the case law.
Well, now, the pattern jury charge matched the case law, but it didn’t match the statute. We put the cart before the horse there a little bit. And so, we crossed our fingers and hoped that we could get the statute done that would match the pattern jury charge and match the case law. And we’ve now completed our trifecta. All three match. All three lineup. All three mirror the equitable principles of exactly what you were saying. We’ve got three marital estates, spouses one separate, spouses two separate, and a community estate. And for lack of a better term, they sometimes trade assets and resources back and forth and back and forth. If you get a divorce, if there’s one estate that had more benefits from the other estate, then you want to try and get that back. And that’s basically what reimbursement is. And it’s now a statute that is in line with everything that we thought that equitable principle was supposed to be based on hundreds of years of case law.
Rocky Dhir: So can you walk us through for the uninitiated like me, right. We think we know family law. And when somebody asks me about it, I know just enough to misquote them something, but I don’t know enough to really know these details. So when it comes to something like reimbursement, how was the statute written and how is it written now? What’s the change? And why is that significant? I know it aligns with the case law, so you’re kind of liking that aspect of it. But how does it affect most family law cases on the ground?
Kristal C. Thomson: So the way the statute was written, it tried to give a laundry list of the various facts that would arise in a marriage that would give rise to a reimbursement claim, right. And it had a list of eight things that, frankly, didn’t always make a lot of sense. Again, some of them —
Rocky Dhir: And it didn’t cover everything, probably.
Kristal C. Thomson: It did not cover everything. It wasn’t supposed to. But it also had some holdovers from that economic contribution time that didn’t make any sense. It was written in this complex way where most people didn’t understand how to apply it to the facts of their case. And as you can imagine, when we have a laundry list, what happens? People say, well, it’s not in the list, so you can’t do it. And that was never the intent of reimbursement. It was always supposed to be an equitable claim. Whatever facts made it unfair. You were supposed to be able to apply the reimbursement statute. But people got stuck on that laundry list, so we took it away.
There’s no longer a laundry list, and we narrowed it down to just the three different types of reimbursement you can have. One is for debts or liabilities that were paid. So, for example, somebody comes into marriage with a credit card debt, and then the two married couples say, “Well, we should use our resources to pay off that debt. So you don’t have debt anymore, honey.” It’s always great when you’re first married, and then you get a divorce and you say, “Wait a second. We used all of our community assets to pay off your separate property debt.” The community wants that back. And so, that’s a reimbursement claim that I’d say is in bucket number one.
Rocky Dhir: But then technically, when you divorce, isn’t any debts that one spouse has endures to the other spouse. If I remember from my bar exam prep, it’s that when you divorce, whatever debts are owed by one spouse, the other spouse is still liable for them. So has the legislature kind of fixed that loophole, or am I getting that loophole completely incorrect?
Kristal C. Thomson: Well I mean, not exactly. I can get really nerdy on you and say that there is no such thing as separate property debt because it’s not in the Constitution, but that’s not really how we handle it.
Rocky Dhir: Okay.
Kristal C. Thomson: I mean that’s a whole, I mean that’s an hour long discussion on property and Constitution, all that kind of stuff.
Rocky Dhir: She came to a gun fight with an F-16 man, look at this. Dang. Jerry you and I need to just go home.
Jerry D. Bullard: Well Kristal is once again reminding me why I don’t do what she does and every time something comes up that hits on her on her turf. I happily referred them to her.
Rocky Dhir: And then you go home and have your evening constitutional. Yes, I get it.
Kristal C. Thomson: These are the nerdy things we fight about at happy hour.
Rocky Dhir: This is after work hours you all do this. No wonder y’all are smarter than me. Oh my gosh.
Kristal C. Thomson: But anyway, that’s if you had this debt prior to marriage and the community state pays it off, the community state says, that’s not fair. We want that money back. That was always your debt. You should have found some other way to pay it.
The second kind of debt is when you improve the property of one estate. So another example, they have a separate property, one spouse has a separate property house before marriage. You come into marriage and you build a pool or you create a new master bedroom wing, you’ve enhanced the value of that property, you get a divorce, the court can’t take that separate property house away from you. Well, if it’s not fair that you’ve benefited that estate, then the court can reimburse the community back the money spent to enhance that separate property.
And the third one is what we call a Jensen claim. It’s when one spouse spends all their time working on the separate property and not contributing to the community. So we just narrowed it down to those three basic things. Everything that you want to try and a reimbursement case is going to fall into one of those three buckets, and that’s what it is now.
Rocky Dhir: I see so let’s say I have a laundry list. It’s now three categories.
Kristal C. Thomson: That’s right.
Rocky Dhir: And that should hopefully until we get some smart lawyers, who figure out how to bust it that should cover everything.
Kristal C. Thomson: It should cover everything.
Jerry D. Bullard: Hey Rocky, if I could chime in here real quick.
Rocky Dhir: No, yes, of course, go ahead.
Jerry D. Bullard: Kristal had mentioned being happy about things that didn’t happen. And I bet one of them had to do with the business court we were talking about where there’s a specific exclusion for claims under the family code because I know there was some concern about them getting pull too close to the vortex, right.
Kristal C. Thomson: Right.
Jerry D. Bullard: I worked in so.
Rocky Dhir: So this is not in the update. So we need to talk about this.
Jerry D. Bullard: Oh yeah.
Rocky Dhir: All right, but guys, let’s talk about this after we hear from our sponsors. This is a great way to break and then we’re going to come back and this you will not read in the Texas Bar Journal. So guys stay tuned. We are going to hear about the family law colliding with the business courts or maybe avoiding each other. We are going to figure that out in just a couple of minutes. We’ll be right back.
And we’re back. And hopefully you were here, when you heard the last bit, it looks like — looks like our two guests, I thought they were going to play in their own sandboxes. I thought we had civil litigation and appellate law and we had family law and these two would just, but it turns out, it turns out we get to now combine it into at least, I guess there’s a community sandbox to use a family law term.
So Jerry just got through telling us about how there’s a carve-out in the business court, in these newly formed business courts, that intersects with family law. So Jerry you want to tell us about that.
Jerry D. Bullard: There’s quite a few carve-outs actually. You get a lot of exclusions because you had a lot of stakeholders who wanted to make sure that like you said, if there’s a sandbox to play in they want to make sure it’s a small enough sandbox for them and everybody else can stay out.
Rocky Dhir: Sure.
Jerry D. Bullard: And there’s an express exclusion for claims in the family code that do not apply to the business court context, at least according to statute. And so that I know the family lawyers are happy about that.
Rocky Dhir: All right, so Kristal are the family lawyers happy about that and tell us the scenarios where you think this would come into play or be significant.
Kristal C. Thomson: Well, from what I understand the judges that are going to be on this court are going to have been business, been involved in the business litigation, civil litigation type area, who never want to touch family law, who have no clue what’s going on. And nor do we blame them but those generally aren’t the judges you would want to hear family law, the ones that hate family law.
However, we are unsure the way the carve-out is written. Oftentimes one spouse or both spouses own businesses.
Rocky Dhir: Sure.
Kristal C. Thomson: Or they own a part of a business which is even worse. And sometimes we join that business into the divorce and we really don’t know if that happens in a divorce whether or not the business owner or business partners can remove that divorce case into the business courts when one of the issues is going to be, for example, separation of the partners, valuation of the company, partition things of that nature. So we’re still unsure of that carve-out is going to exclude all family law cases, where there’s an entity involved.
Jerry D. Bullard: And there is a supplemental jurisdiction to this court. I guess where the parties could theoretically agree that some of these issues could be litigated in that court if they so chose. But that like Kristal said there’s still a question mark there as to exactly if they could still be pulled into it somehow, so, we’ll see.
Rocky Dhir: I guess the question that might arise when you have say a derivative claim where the spouses own it together and one of the spouses says, I was effectively shut out from decision making because of the way the other spouse just kind of usurped the business. And so, if that occurs then is that a family law question? Is that a business court question? And now that they’re both separate, I suppose we’re going to have to wait and see on that one.
Jerry, what’s your prediction on a question like that one? And then Kristal you get to weigh in as well.
Jerry D. Bullard: On something like that, I could easily see where that could somehow get sucked into this court.
Rocky Dhir: Into the business court?
Jerry D. Bullard: Into the business court. I mean I could say it happening or at least someone would try whether or not they are successful or not is another issue but this whole business law or business court concept, to me it’s kind of the court of dream dried. It’s kind of if the flaws for you if they build that they will come. The idea is to track businesses here more so than they already are attached to come to Texas.
And so trying to figure out what the jurisdiction looks like and whether it’s going to change or not as time goes on. I mean that’s going to be that’s what we’ll see what happens. But there will be some tweaks to this as it gets unfolded over the years. So and I bet we’ll say circumstances where we’ll get some of these disputes that try to get brought into the court. The legislature will have to fix it.
Rocky Dhir: Kristal, what do you think? What’s your prediction?
Kristal C. Thomson: I think Jerry is right. The parties may agree to something like that. If the primary dispute in the divorce is something related to the business as you were saying, some kind of derivative claim or valuation issue or partition of the business, then I could see the parties wanting it to be in front of somebody who has a business expertise.
So if that’s the primary issue in the divorce, maybe so but I think most family lawyers are going to do whatever they can to stay away from the business courts.
Rocky Dhir: There becomes a procedural issue too then do you carve out that one aspect of this family case put it into the business courts, let that play itself out and then come back into family court that just drags everything on for a longer period. So, I could see there being multiple issues with this.
But we’re going into this fascinating world of business courts and family law. Kristal, I would be remiss if I didn’t ask you, reimbursement played a very dominating role in your update for obviously good reason. But there were some other updates as well and maybe a couple of them bear some mention here. One is about protections for spouses from being spied upon effectively or tracked.
Kristal C. Thomson: Yeah, sure. This was pretty interesting to me and we have and when somebody files for divorce, we have TROs or temporary restraining orders, where the parties are temporarily restrained while the divorce is pending from doing certain things that make total sense, right, closing bank accounts, diverting money to another place, etc, and there’s a laundry list of things that you can get in your temporary restraining order. And they added to that this year, you can restrain a party from tracking or monitoring personal property or a motor vehicle in possession of a party without that party’s effective consent.
Effective consent is not defined on the civil side. It is on the penal side but not on the civil side. So we don’t know what effective consent means. Does filing for divorce mean you’ve withdrawn any consent to be followed? I don’t know the answer to that.
What I do know is that when you’re married before the divorce is filed, you often have things on your phone like Find My iPhone or vehicle apps that help you unlock or remote start your car. But also, tell you where that car might be located. Things that are very innocuous and don’t seem that out of the ordinary for a married couple but once you file for a divorce, the question becomes those temporary restraining orders go in place, are you allowed to look at those apps that you’ve had all along? Are you allowed to do Find My iPhone to locate your spouse?
I don’t know what’s going to happen with those. My advice to clients is going to be get them off your phone, don’t access them, don’t do anything because we don’t know what’s going to happen with that.
Rocky Dhir: I mean how do you even enforce that? I mean if somebody’s going to go look at an app and see where their iPhone is then I mean unless you go into the metadata of the phone and see when it was accessed, which can be expensive.
Kristal C. Thomson: This might surprise you but people are typically very emotional when they’re going through a divorce.
Rocky Dhir: So they just blurted out.
Kristal C. Thomson: And when they find out where their spouse is, they generally go to that place or mention that they know where their spouse has been.
Rocky Dhir: Right.
Kristal C. Thomson: So and divorce is there is a little bit of that that comes into play where we find out but you are absolutely right, if they are doing it surreptitiously, we are not going to know about a lot of it.
There’s also a portion of this that says you can’t follow that spouse or cause somebody else to follow that spouse. In our line of business, we oftentimes hire private investigators, so we’re unsure how this would relate to private investigators. There’s a little corollary to that that says for the intent and purpose of harassing the other spouse. So I think some of us in the family law arena are saying if you hire a private investigator, for example, to determine whether or not a spouse is drinking and driving with children in the car, you’re not hiring a private investigator with the intent to harass that person. You’re gathering evidence in the divorce case. So it’s still one of those gray areas where we don’t know how that’s going to play out in the long run. I think if your intentions are good, you’re going to be okay. But to be safe, I would get all those apps off your phone if you’re filing for divorce.
Rocky Dhir: Now, I guess final questions, because we are running short on time now. Jerry, I want to ask you, looking at the updates that have happened in the civil and appellate sections and of course, the business, I mean a lot of exciting things going on. Is there something that you wished would have been passed by the legislature that wasn’t and that you are kind of secretly hoping will come into play in the next session?
Jerry Bullard: Well, most of the time I like to think that the legislature would kind of leave us alone.
Kristal Thomson: Agreed.
Jerry Bullard: Because it seems like this past session and I’ve heard this term used by many others who I’ve talked to about this session being an unprecedented session in terms of giving or putting a new level of scrutiny on our civil justice system. And so whether it be the creation of new courts or tinkering with jurisdiction or creating some nuanced interlocutory appeals, and the type of work that the legislature puts on the plate of our judges at all levels, really.
The thing I would have liked to have seen happen, and I hope still happens, is an increase in judicial compensation. That’s one of the reasons I started doing this in 2004, because I think our judges are woefully uncompensated for the role that they play. If you look at the numbers statistically, they’re way down on the charts nationwide or where they should be, I think. And so I’m hopeful that that will be addressed because the ripple effects of that would be to maintain good quality judges on the bench, attract good quality candidates to the bench, and I think everyone benefits if you have, obviously the most qualified people serving in those roles. So that’s what I would like to see happen, and hopefully it will sooner rather than later.
Rocky Dhir: Okay. I was not expecting that, actually. Okay, that’s cool, and I love it. I think that’s a great answer. Kristal, how about you? Aside from them leaving you the hell alone. If you have to say that because I think — Jerry, I’m going to make a bumper sticker.
Jerry Bullard: He stole my answer.
Rocky Dhir: I know. I think we’re going to make a bumper sticker out of — it’s going to be “Leave me the hell alone, Jerry Bullard 2023.” But if there’s something that you wish that they would improve in the family code in the next legislative session, what would that be? If you could have a wish list.
Kristal Thomson: This is actually pretty easy because we had an amicus statute that we promoted in the Texas Family Law Foundation that helped set some better guidelines for lawyers who are appointed as amicus attorneys in family law cases. And it actually passed, but it was a victim to the property tax session when the governor just started vetoing certain bills that had nothing to do with property tax. It was just one of the victims of the vetoes. And so I would like to see that come back and then we have long been advocating for a change in the child support system in Texas that has not changed since 1986. And we believe that that needs some revamping to be more in line with what most states are doing around the nation regarding child support.
Rocky Dhir: Interesting. Okay, well, I wish we could go into both of those topics with the judicial pay and child support, but we are at the end of our time. And so guys, this was fascinating. You know, the legislative updates, they always sound dry, but then you get guys like Jerry and ladies like Kristal just come in here and make this a really fun episode. Thank you both for being on here with us.
Kristal Thomson: Thanks for having us.
Jerry Bullard: Thank you.
Rocky Dhir: And of course I want to thank you for tuning in and I want to encourage you to stay safe and be well. And I also want to urge you go out and read the legislative updates in your Texas Bar Journal. There’s some good stuff in there. It’ll also help you stay abreast of everything that’s going on. So next time there’s a family barbecue, you’re going to sound real smart. If you like what you heard today, please rate and review us in Apple Podcasts, Google Podcasts, or your favorite podcast app. Until next time, remember, life’s a journey, folks. I’m Rocky Dhir signing off.
Outro: If you like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple Podcast and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook and LinkedIn, or download the free app from Legal Talk Network in Google Play and iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by The State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.