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My grandmother was always fond of saying “The whole world is going to pot.”  Little did she know how prophetic those words might be someday.

Several states have now legalized the recreational use of marijuana, and more states are likely to join the party in years to come.  This has already given rise to a frenzy of business activity calculated to take advantage of this growing trend.  One market study conducted several years ago estimated that the U.S national legal marijuana market was valued at $ 1.53 billion.  That number was projected to increase by 68 percent to 2.57 billion this year.

Regardless of where you stand on the issue of legalized marijuana, you can’t deny the numbers.  They don’t lie.  Marijuana, for better or worse, is truly a “growth” industry.  As a result of the growing trend, whole industry sectors are rising, and new businesses are sprouting every day.  One of those industries is insurance.  For whatever reason, the insurance industry often lags behind the other industries which it serves.  Cannabusinesses are no exception.

To be sure, the players involved in the marijuana supply chain, whether they be growers, distributors, or retailers, have all sorts of insurance needs.  Traditional forms of insurance like property damage, theft, and liability are still needed, but the list does not end there.  Unique and special risks are often associated with many of these “420” businesses, and a lot of those risks stem from the fact that marijuana is still considered an illegal drug under federal law.  Nevertheless, companies devoted to serving the specific needs of the cannabis industry, like Cannasure, are beginning to crop up to meet those needs.  It’s high time they did.

Written By: Alex Beard

Over the course of the past two months I have randomly come across the phrase quo warranto.  The first time was the in the Texas Rules of Civil Procedure (Part VII, sec. 7) and the second time was in the Texas Civil Practice & Remedies Code (§§66.001 et seq.).  I was further intrigued by the fact that neither of these sources give a meaningful description of the… proceeding… cause of action… whatever quo warranto happens to be.  I became curious enough to look into it.

     “Quo warranto (Medieval Latin for “by what warrant?”) is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or “franchise”) they claim to hold.”[1]  The Dallas Court of Appeals describes the writ as follows:

     Quo warranto is an ancient prerogative writ through which the State acts to protect itself and the good of the public generally through its chosen agents as provided by its constitution and laws, though sometimes it is brought at the instance of and for the benefit of a private individual who may have a special interest.  Texas courts have held that mandamus is not a proper remedy when quo warranto is available.  In injunction cases, also, quo warranto is held to be the exclusive remedy to challenge the authority of a public officer.  The same rule is applied when a declaratory judgment is sought.”[2]

In the case of Lewis v. Drake, Ben Lewis initiated a mandamus proceeding in order to have Jim Jackson removed as county commission of precinct number one of Dallas County.  Mr. Lewis believed that Mr. Jackson effectively vacated his office when he declared his candidacy for another public office.  The Dallas Court of Appeals dismissed the action on the basis that mandamus is not a proper remedy when quo warranto is available.

In short, quo warranto is the sole means by which the attorney general, or, in some cases, a private citizen, can point the finger at an officer of the state and say, “Hey, you can’t do that!”  I bet the attorneys for Mr. Lewis wish they had become curious about quo warranto before they filed a mandamus proceeding against Mr. Jackson.  Thanks to my curiosity, you and I can now avoid that problem in the future.

[1]“quo warranto.”  Wikipedia.org.  2014.   http://en.wikipedia.org/wiki/Quo_warranto.  (8 Dec. 2014).

[2] Lewis v. Drake, 641 S.W.2d 392, 394 (Tex. App. – Dallas 1982, no writ) [Internal citations omitted].

Written by: Jacob Thomas

Ah, the holidays.  Tis the season of giving.  But for many lawyers and their clients, giving is not on their minds.  The client has been wronged and wants justice.  But the wheels of justice often turn very slowly, especially around the holidays.  The client wants results, but there is nothing to be had.

It doesn’t always have to be that way, especially in business disputes.  There are things that can be done to advance the ball down the field.  Even some of the most seasoned attorneys sometimes forget about the “extraordinary remedies” that Texas law affords litigants, particularly in suits involving money or property.  

Here are some of the most common “extraordinary remedies” which lawyers often overlook, but which can be extremely effective during the course of litigation:

1. Writ of Attachment.  Owed money by an out-of-state resident or an individual who is about to move out of state?  Fearful that the party you have sued will transfer property out of the state to avoid payment of a debt?  Owed money for property taken from you under false pretenses?  Get the court to issue a writ of attachment. The writ is an order from the court which enables you to seize property before judgment to secure payment of a probable judgment on an otherwise unsecured debt.  You’ll have to put up a bond in an amount ordered by the court, but it’ll probably be worth the effort.
2. Writ of Sequestration. Someone have possession of your personal property but won’t give it back, and there’s a good chance the person will destroy or move the property out of the county during the suit?  Get the court to issue a writ of sequestration.  The writ is an order form the court to a constable or sheriff, requiring them to seize the subject property.  You’ll have to put up a bond in an amount ordered by the court, but again, it’ll probably be worth the effort.
3. Writ of Garnishment.  Owed a debt that is unpaid and the debtor does not have property in Texas sufficient to satisfy the debt?  Go with the writ of garnishment.  The writ of garnishment is similar in several respects to the other writs described above, and allows you to impound funds in the hands of the garnishee (like a bank).

All of the above writs are considered harsh remedies by the courts, and so care must be taken to ensure that strict compliance with all of the requirements for obtaining them.

Happy Thanks-taking!

Written By: Alex Beard

As they do each year, the Dallas Morning News published their list of those for whom we should be thankful on this truly American holiday.  I was struck by the common theme of their selections: people who help and serve others.  While hardly a novel concept, it was a good reminder of who constitutes the most remarkable among us.

Like many in our line of work, I grow weary of the sweeping assaults on the legal profession by the politicians and comedians (despite the undeniable humor of many.)  Too often I feel forced to explain that “I don’t practice THAT kind of law,” tacitly agreeing with the gist of their critique.  Why?

The commercials are sickening.  Loud-talking blowhards promising “cash” for fender benders on daytime television don’t look and sound like my friends and adversaries over the last 18 years (well, maybe one or two, but certainly not 99%).  The vast majority of my contemporaries, like me, wanted to pursue this difficult profession to be like Atticus Finch (at least in some small way.)  To HELP those who needed help.

I don’t know how to treat Ebola-stricken patients in a hospital.  However, I DO know how to file a mechanic’s lien to help a plumber with weak English skills get paid for the work his crew performed for months so that he can pay his workers.  I can’t clothe, house and feed house the hundreds of thousands of Central American refugees at the border like our Border Control agents.  However, I can help an entrepreneur establish her new corporation and hopefully employ dozens of employees.

My son asked me when he was in the first grade what a lawyer does.  It’s a tricky question to answer for a commercial litigator; I couldn’t think of any accurate “first grade response.”  Then it came to me: “We help people do things they can’t do for themselves.”  It’s true and I think it’s honorable.  I’m thankful for the opportunity to be a lawyer.

Okay, so a priest, a doctor and a lawyer are playing golf…

Written By: Mark Walsh

On September 23, 2014, Aaron Rogers of the Green Bay Packers gave his fans some great advice, “Five letters here just for everybody out there in Packer-land:  R-E-L-A-X.  Relax.  We’re going to be OK.”  While Aaron Rogers was talking about the Packers’ football season, I strive to apply this advice to my litigation practice on a daily basis.

It has been my experience that the amount of stress I inflict on myself rarely changes the outcome of a case.  In addition, it would seem that, more often than not, everything has a way of working itself out.  With this in mind, I would like to offer a few observations that may help relieve some of your stress, should you be the client or the attorney.

There is an exception to every rule.  It is true, the statute of frauds requires that all contracts for the sale of real property must be in writing and signed by the party to be charged.  While this is a straightforward rule, there are dozens upon dozens of published court opinions that discuss a myriad of equitable exceptions to this rule.  The same is true of the statute of limitations.  That pesky discovery rule makes any limitation defense a long shot.  The practice of law is often about creating and exploiting exceptions.  With this in mind, try not to panic when faced with seemingly insurmountable odds.  There will usually be an exception to exploit.

There will usually be more time.  When I first started practicing law, I stressed out over every single deadline on my calendar.  I recall once going into a partner’s office, covered in sweat, and explaining how the world was going to end because discovery responses were due the next day and I just got the case.  He didn’t say anything to me.  He took the file, picked up the phone and called opposing counsel. Five minutes later I was drafting a Rule 11 Agreement extending our response deadline out an additional thirty days.  I have learned that most attorneys will work together in the name of fairness.  It is not because attorneys are giving people, it is because attorneys all believe in Karma.  There is the unspoken understanding that I must give additional time to others because one day I too will need more time.

Motions are not about winning or losing, they are about advancing the ball.  This one may sound a bit odd, and I am still collecting data, but initial returns suggest that filing a motion is a great way to make things happen, but rarely is it a game changer.  Here are some quick examples to illustrate my point:  1) Motion to Compel – the parties either agree before the hearing or at the hearing.  If the judge actually has to get involved, be ready to produce everything; 2) Motion for Summary Judgment – if there is a way for the judge to grant a partial summary judgment, that is the best the movant should hope to achieve.  Granting a Motion for Summary Judgment may get a judge overturned, but denying one will not; 3) Motion for Sanctions – whether brought separately or included within another motion, the possibility of sanctions scare everyone, but they are rarely awarded.  In Texas, we elect our judges.  The judges get campaign money from attorneys.  A judge who gets a reputation for handing out sanctions is going to have a hard time raising campaign funds.  Sanctions only get awarded if there has been egregious conduct or if the attorney is from another county (I’m joking – sort of).

I hope I have given you some good reasons to relax.  If not, I am not going to worry about it.

Written By: Jacob Thomas