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Publication

ELECTRONIC SIGNATURES, REMOTE ONLINE NOTARIES AND E-RECORDING

June 29, 2020 by Janna Fain

Author: Celia Flowers

TABLE OF CONTENTS
I. PAPER DOCUMENTS ARE GRADUALLY BEING REPLACED BY ELECTRONIC DOCUMENTS. 4
II. ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGN)-, UNIFORM ELECTRONIC TRANSACTIONS ACT (UETA), AND UNIFORM REAL PROPERTY ELECTRONIC RECORDING ACT (URPERA). 4
A. The E-SIGN Authorized Electronic Contracts Almost Twenty Years Ago. 4
1. Parties to the Electronic Contract Must Consent. 4
2. The E-SIGN Exempts Some Types of Transactions. 4
B. The UETA also Authorized Electronic Signatures in Business Contracts Over Twenty Years Ago. 5
1. Parties Using Electronic Signatures in Electronic Contracts Must Consent. 5
2. The UETA Expressly Exempts Some Types of Transactions. 6
3. Definitions Under the UETA Demonstrate the Act’s Broad Nature. 6
4. The UETA has been Broadly Adopted by Individual States’ Legislatures. 7
C. The URPERA Enabled Recordation of Electronic Contracts Many Years Ago. 7
1. The Recording of Paper Documents Electronically Led the Way to Electronic Document Recordation. 7
2. The URPERA has been Adopted in Fewer States. 7
III. THE RECENT ADOPTION OF REMOTE ONLINE NOTARIZATION ACT (RON). 7
A. An Acknowledgment by a Notary Allows a Document to be Recorded in the Public Records. 8
B. Requirements for Notarization are Recognized by the Acts Enabling Electronic Contracts. 8
C. RON Enables Notarization by a Notary When the Party is in a Different Location. 8
1. RON Changed the Definition of Personal Appearance. 8
2. A Discussion of RON Applying the Texas Act Emulated by the ALTA Model Act. 9
D. RON also Requires Consent. 10
E. RON Provides for Methods of Confirming the Identity of the Signer. 10
1. Knowledge Based Authentication (KBA). 10
2. Credential Analysis. 10
3. Visual Confirmation. 10
F. RON Adds an Additional Notary Commission. 11
G. Document Retention is Required by RON. 11
H. The Principal and the Notary May be in Different Locations. 11
1. Regulations were Added by the Secretary of State to Implement RON. 11
IV. RON PRESENTS ISSUES COMMON AMONG THE STATES. 12
A. Mandatory Disclosure. 12
B. Multifactor Authentication (discussed in detail above). 12
C. Audio-Video Recording. 13
D. Location of the Notary. 13
E. Location of Signer. 13
F. Secure Technology. 13
G. Retention of Data. 14
H. Fees. 14
I. Defective Acknowledgments. 14
V. Recording Laws. 14
A. State Laws Should Confirm a Document Utilizing RON can be Recorded. 14
B. Why is “Papering Out” Important? 14
1. “Papering Out” – How to Solve the Issue of Recording. 16
VI. OTHER ISSUES. 17
A. Statute of Limitations for Defective Acknowledgments using RON. 17
B. Jurisdictional Requirements. 17
C. Amendments to the Model Act. 17
D. Title Insurance Coverage. 18
E. Where is the Original? 18
F. Title Opinions Reviewing Documents that are Totally Electronic. 18
VII. ADVANTAGES OF RON. 19
A. No Mail Outs. 19
B. Landmen and Attorneys May Want to Consider a Third-Party Vendor. 19
VIII. RISKS OF RON. 20
A. Unauthorized Access. 20
B. Fraud. 20
C. Mistakes and Errors. 20
IX. UTILIZATION OF RON IN THE OIL AND GAS INDUSTRY. 20
X. ELECTRONIC DOCUMENTS, SIGNATURES, NOTARIZATIONS AND RECORDING WILL CONTINUE TO AFFECT CURRENT PRACTICES. 21

 
 
ELECTRONIC SIGNATURES, REMOTE ONLINE NOTARIES AND E-RECORDING

I. PAPER DOCUMENTS ARE GRADUALLY BEING REPLACED BY ELECTRONIC DOCUMENTS.
In the traditionally paper-intensive industries of oil and gas and real estate, old school paper trails are being replaced with electronic documents, signatures, acknowledgements, and recordings. The federal Electronic Signatures in Global and National Commerce Act (E-SIGN) act has been around for almost twenty years and legitimizes the use of electronic signatures and documents. Additionally, many states have adopted specific electronic signature and other technology-driven acts affecting acknowledgments of signatures and recording of legal documents that change the definition of “presence before a notary” without case law catching up to provide interpretation of those laws. This paper addresses the legal side of these technology-driven model acts, including the Uniform Electronic Transactions Act (UETA), the Uniform Real Property Electronic Recording Act (URPERA) and the Remote Online Notarization Acts (RON). While the number of states adopting these types of acts is increasing, the details in recording documents in various jurisdictions and acceptance between states impact the use for conveyancing documents. The transition from paper-recorded documents and in-person acknowledgments to fully electronic enforceable instruments in all jurisdictions has its challenges.

II. ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGN)-, UNIFORM ELECTRONIC TRANSACTIONS ACT (UETA), AND UNIFORM REAL PROPERTY ELECTRONIC RECORDING ACT (URPERA).
A. The E-SIGN Authorized Electronic Contracts Almost Twenty Years Ago.
President Clinton signed the E-SIGN in 2000. See 15 U.S.C. §§7001-7031. The federal statute recognizes that electronic contracts, electronic signatures and other electronic records are the legal equivalent to paper documents with original signatures. See 15 U.S.C. §7001(a)(1)-(2). Being a federal act, E-SIGN affects people who wish to do business electronically in all 50 states.
1. Parties to the Electronic Contract Must Consent.
E-SIGN requires consumers to affirmatively consent to allow the use of electronic records, including electronic signatures, in consumer transactions. See 15 U.S.C.§7001(c)(1)(A). Before the consumer consents, he must be provided with a “clear and conspicuous statement” informing him of the option to have the record provided electronically or made available in paper form as well as the right to withdraw the consent (among other disclosures.) See 15 U.S.C. §7001(c)(1)(B). Consumers must be given a statement of the software and hardware requirements necessary to access and retain the electronic records. See 15 U.S.C. §7001(c)(1)(C). Additionally, consumers must electronically confirm their consent in a manner that “reasonably demonstrates” they can access information in the particular electronic form that will be used to provide the information to the consumer. See id. The legal effectiveness, validity, or enforceability of any contract executed by a consumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer. See 15 U.S.C. §7001(c)(3).
2. The E-SIGN Exempts Some Types of Transactions.
The act applies to all transactions, including interstate or foreign, unless an exception applies. The E-SIGN provisions do not apply to a contract or other record to the extent it is governed by a statute, regulation, or other law governing the creation and execution of wills, codicils, or testamentary trusts. See 15 U.S.C. §7003(a)(1). Additionally, E-SIGN does not apply to a state statute, regulation, or other law governing adoption, divorce, or other matters of family law. See 15 U.S.C. §7003(a)(2). Further, the act does not apply to many provisions of the Uniform Commercial Code in effect in any state. See 15 U.S.C. §7003(a)(3). Among the other excluded transactions, the provisions of the E-SIGN do not apply to court orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings. See 15 U.S.C. §7003(b).
B. The UETA also Authorized Electronic Signatures in Business Contracts Over Twenty Years Ago.
In July of 1999, the National Conference of Commissioners on Uniform State Laws, also known as the Uniform Law Commission, (ULC) approved a uniform act to enable the use of electronic signatures in business contracts and recommended it for enactment in all the states. If a state adopts the ULC’s official version of the UETA, the E-SIGN Act provides that state law will supersede where a conflict exists between the E-SIGN Act and the UETA.
See 15 U.S.C. §7002(a)(1). See also Allen v. WELLS FARGO BANK, NA, Dist. Court, ND Texas 2016. Allen asserted Wells Fargo violated 15 U.S.C. §7003 because the substitute trustee’s deed was electronically recorded. Wells Fargo argued 15 U.S.C. §7003 was “inapplicable” in the present case as Texas state law modifies, limits and supersedes that statute. The court agreed and only exercised diversity jurisdiction over this case.
The UETA applies to electronic records or electronic signatures relating to a transaction. See Tex. Bus. & Com Code Ann. §322.003. The UETA does not require a record or signature to be created, generated, sent, communicated, received, stored or otherwise processed or used by electronic means or in an electronic form. See Tex. Bus. & Com Code Ann. §322.005(a). In other words, the act allows the use of electronic records or signatures in a transaction but does not require parties to use an electronic method.
1. Parties Using Electronic Signatures in Electronic Contracts Must Consent.
The UETA only applies to transactions where each party has agreed to conduct transactions by electronic means. See id. at (b). The E-SIGN, on the other hand, simply states that a party may not be required to use or accept electronic signatures or electronic records. See U.S.C. §7001(b)(2). Whether the parties have agreed to conduct a transaction by electronic means is to be determined from the context and surrounding circumstances, including the parties’ conduct. See Tex. Bus. & Com Code Ann. §322.005(b). If the issue is raised, the party seeking to enforce the contract must prove the parties intended to be bound by electronic communication. As an example, in one case the parties agreed to explicitly communicate only in writing at the inception of the relationship. However, while conducting business together, the parties communicated primarily through email because of its speed. One party stated that she could only be reached by email. The court reasoned that these actions demonstrated a preference for email communication; therefore, the Court held this was consent to conduct business through email. See Crestwood Shops, LLC v. Hilkene, 197 S.W. 3d 641 – Mo Court of Appeals, Western Dist. 2006.
In another case, the Court held legally sufficient evidence of an agreement to conduct business electronically where the parties exchanged communications regarding offers and counteroffers about the subject property via e-mail messages and ultimately agreed via email. See Dittman v. Cerone, No. 13-11-00196-CV, 2013 WL 865423, at *7-8 (Tex. App.-Corpus Christi Mar. 7, 2013, no pet.). Email communications are frequently used during negotiations to buy oil and gas leases or mineral/royalty interests as well as during mergers and acquisitions. Email has virtually replaced typed letters sent by mail as the traditional form of correspondence. Offers and counteroffers are often communicated by email until the ultimate agreement is reached and final documents are emailed for signature. Of course, the absence of a final agreement within the electronic communications could imply the parties had not consented to use the electronic means.
See Central Illinois Light v. Consolidation Coal, 235 F. Supp. 2d 916. See also McClare v. Rocha, 86 A. 3d 22 – Me: Supreme Judicial Court 2014 – “Jim says he would be happy to speak with McClare directly if it would facilitate an agreement” appears to provide evidence that the reference to the sale price contained in the same email was not intended to comprise all of the details of a not-yet-completed agreement.
Additionally, there must be evidence of a clear agreement for consent. References to other necessary documents or telephone communications may indicate the parties did not clearly consent to the use of the electronic means for the entire contract terms. See id.
The determination of whether an electronic signature exists, or a record is “signed,” is also a question of fact. That determination should be made considering all surrounding circumstances. See Tex. Bus. & Com Code Ann. §322.002, Official Comment No. 7. Where a party has expressly stated another method of signing, an electronic signature is not acceptable. For instance, if one party tells the other party to sign and return the paper document, an electronic signature will not suffice. See Powell v. City of Newton (2010) 364 N.C. 562 [703 S.E.2d 723, 727-728]. Similarly, where the parties specifically discuss how they will sign an agreement which differs from an electronic method, then an electronic signature will not work. See J.B.B. Investment Partners, Ltd. v. Fair, 232 Cal. App. 4th 974, 990-91 (Ct. App. 2014).
A party who agrees to conduct one transaction by electronic means may refuse to conduct other transactions electronically. See Tex. Bus. & Com Code Ann. §322.005(c). Therefore, a party can decline to conduct a future transaction electronically after initially agreeing to conduct a transaction electronically. Moreover, the parties to an electronic transaction may vary the provisions of the UETA by agreement. See id. at (d). However, not all the UETA provisions may be varied by the parties. For example, a party’s right to refuse to conduct subsequent transactions electronically may not be waived. See id. at (c). Additionally, a party’s right to be provided documents created in the transaction in a form that can be retained by the party cannot be waived. See Tex. Bus. & Com Code Ann. §322.008(d).
2. The UETA Expressly Exempts Some Types of Transactions.
The UETA does not apply to a transaction to the extent it is governed by a law governing the creation and execution of wills, codicils, or testamentary trusts. Further, the UETA does not apply to most provisions of the Uniform Commercial Code. See Tex. Bus. & Com Code Ann. §322.003(b).
3. Definitions Under the UETA Demonstrate the Act’s Broad Nature.
The UETA defines a “record” as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form”. See Tex. Bus. & Com Code Ann. §322.002(12). An “electronic record” is a record that is “created, generated, sent, communicated, received, or stored by electronic means”. See id. at (7). Electronic records include emails, voice mail, facsimile and any information stored on a computer, including scanned or digital images of documents. See id. at Official Comment No. 6.
The idea of an electronic signature is clearly intended to be broad and not specially defined in order to cover a variety of different electronic medium. For example, an “electronic signature” does not have to be an electronic duplication of the signer’s actual signature. The “electronic signature” can also be an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with intent to sign the record. See id. at (8). Electronic signatures include a named affixed to an email, a personal applying of a symbol, standard webpage click-through process, or clicking an “I Agree” button on web site. See id. at Official Comment No. 7.
The key concept of the UETA is that a record or signature will not be denied legal effect or enforceability solely because it is in electronic form. See Tex. Bus. & Com Code Ann. §322.007(a). Likewise, a contract will not be denied legal effect or enforceability solely because an electronic record was used in its formation. See id. at (b). If a law requires a record to be in writing, an electronic record satisfies the law. See id. at (c). Similarly, if a law requires a signature, an electronic signature satisfies the law. See id. at (d). If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform the notary act, together with all other information required by law, is attached to or logically associated with the signature or record. See Tex. Bus. & Com Code Ann. §322.011.
4. The UETA has been Broadly Adopted by Individual States’ Legislatures.
The UETA has been adopted on a state-by-state basis and has been enacted in 47 states along with the District of Columbia, Puerto Rico and the U. S. Virgin Islands. Washington, Illinois, and New York have not adopted the UETA; however, similar legislation governing electronic transactions have been enacted in those states. See Uniform Law Commission (ULC). (1999). Electronic Transactions Act. Retrieved April 25, 2019, from https://www.uniformlaws.org/committees/community.
C. The URPERA Enabled Recordation of Electronic Contracts Many Years Ago.
In 2002, the ULC began work on the Uniform Real Property Electronic Recordation Act (URPERA) to harmonize local recording laws used in the different states. The URPERA removed any doubts that existed under prior law regarding the record ability of electronic documents containing electronic signatures. The URPERA permits, but does not require, local filing offices to create electronic recording systems. See URPERA §3(a). Like the UETA, the URPERA recognizes electronic signatures, electronic verification/acknowledgment of documents, and the general validity of electronic documents. See id.
1. The Recording of Paper Documents Electronically Led the Way to Electronic Document Recordation.
The technology to support electronic signatures and notarization has been available since early 2000’s. With that technology, the signer of the document was intended to be physically present before the notary. The computer technology affixed the signatures and acknowledgments. The URPERA allowed county clerks and recorders to electronically record information in the real property and land records. Paper documents executed the traditional way could still be used, but a recording office could convert them to electronic form. See id. at §4. The URPERA paved the way for electronic recording by the record clerks. However, in counties where electronic recording was not available, some of the documents required in a transaction were signed electronically, but those documents requiring recordation were still executed by original signatures in the presence of the notary. In these “hybrid” transactions, the documents that needed to be recorded in the public record were printed out, “wet signed”, and acknowledged by the notary while the other documents, not requiring recording, were simply electronically signed and acknowledged.
2. The URPERA has been Adopted in Fewer States.
As of March 2019, only 35 states have adopted the URPERA, as well as the U.S. Virgin Islands, and it continues to be introduced by state legislatures for adoption. In 2019, West Virginia and Alaska introduced legislation to adopt the URPERA. So far, Oregon, California, Montana, North Dakota, Colorado, Nebraska, Iowa, Missouri, Louisiana, Ohio, New Jersey, Maine, Vermont, New Hampshire, and Massachusetts have not adopted the URPERA. In many of the states that have not adopted the uniform act, a state statute addresses the recordation of electronically signed documents. See Uniform Law Commission (ULC) (Ed.). (2004). Real Property Electronic Recording Act. Retrieved April 16, 2019, from https://www.uniformlaws.org/committees/ community.

III. THE RECENT ADOPTION OF REMOTE ONLINE NOTARIZATION ACT (RON).
With the adoption of the E-SIGN, the UETA, and the URPERA, recording offices utilizing electronic recording cover areas where approximately 80% of the US population live. See id. Despite the widespread availability, few real estate conveyances are originated in total electronic form. The lack availability of electronic recording leaves many rural areas without access. This was partially due to the fact the official recorder’s requirements for filing are left to the individual states to make the decision whether to adopt and implement electronic filing systems. See Tex. Bus. & Com Code Ann. §322.003, Official Comment No. 3. With the change in how the notarization process can take place with RON, there is a renewed possibility of using fully electronic documents even in areas where the recorder has not implemented electronic recording.
A. An Acknowledgment by a Notary Allows a Document to be Recorded in the Public Records.
Although the subject matter and form of contracts differ, any contract can be created, executed, acknowledged, and maintained in a wholly electronic format. Real estate transactions, which include an oil and gas transactions, differ from other commercial transactions in that some of the documents necessary to the transaction require recording in the public record to protect the parties’ rights as to third parties. Of course, the contract signed by the parties is enforceable between the parties without any further action. Therefore, the decision whether to use an electronic medium for the agreements between the parties should be a matter for the parties to determine. See id.
However, for the agreements or documents to be effective as to third parties, state laws generally require recording with a governmental office designated by the state as the official custodian of those records. Most recording statutes require an acknowledgement of the signer’s signature by a notary for recording. If an electronic filing system has not been adopted by the governmental office, recording requires a piece of paper with an original notarized signature to perfect rights against third parties. Certainly, this requirement that a document be recorded to protect the parties’ rights is a consideration for the parties in deciding whether to enter into an electronic contract or agreement. See id.
Therefore, even with the UETA and the URPERA justifying the use of fully electronic documents, the move to wholly electronic documents has been hindered partially because the governmental entity in charge of recording was not set up to electronically record fully electronic documents. Therefore, a paper document remained essential for recording purposes.
As time passed, more county recorders across the nation began to implement electronic recording. The recorders in many large cities across the country accept electronic filing of documents. However, in many rural areas where no electronic recording systems are in place, the parties still must submit paper documents with “wet signed” and properly acknowledged signatures for the recorders to allow the document to be filed of record.
B. Requirements for Notarization are Recognized by the Acts Enabling Electronic Contracts.
The UETA allows the notary public and the filing entity to act electronically; however, the act does not eliminate any of the other requirements of the notarial laws. See §1.00(2) for an analysis of the UETA. The Act simply allows the signing and the notarization to be done electronically. The person executing the document must still appear in the room with the notary. The notary must satisfy himself as to the identity of the signer and swear to that identification. See Tex. Bus. & Com Code Ann. §322.011.
C. RON Enables Notarization by a Notary When the Party is in a Different Location.
1. RON Changed the Definition of Personal Appearance.
RON enables notarization of signatures to occur using audio-video technology via the internet where the notary and the signer are in different locations. See §1.00(2) for an analysis of the UETA; see also “Love, R. & Flowers, C.” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute. Essentially, it changed the definition of “personal appearance” required for a notarization to include an on-line audio-visual internet appearance that satisfies certain conditions. See Tex. Civ. Prac. & Rem. Code §121.006(c). Therefore, the execution of documents requiring notarization can be completed without the signers having to be in the notary’s physical presence. With the implementation of RON, a landman would no longer have to travel to the location of the lessor to notarize the oil and gas lease. Similarly, complicated assignments requiring the signatures of multiple parties can be handled without the parties each signing while physically present in the room with a notary.
a. States’ Adoption of RON is Increasing.
The first RON bill passed in Virginia in 2011. In 2015, Montana approved the use of RON for transactions involving real estate located in the state. In 2017, RON bills were passed in Texas and Nevada. Remote notarization laws have now passed in twenty-two states: Virginia, Texas, Vermont, Michigan, Indiana, Minnesota, Montana, Nevada, Ohio, Utah, Tennessee, Arizona, Idaho, Kentucky, Maryland, North Dakota, South Dakota, Oklahoma, Washington, Iowa, Nebraska (pending governor’s signature) and Florida (pending governor’s signature). Some of the state’s statutes required the writing of regulations. Texas & Nevada released RON regulations in 2018. In 2020, the following states have passed RON Legislation: Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and Washington. See American Land Title Association (ALTA).
b. The Model Bill for RON was Drafted by the Real Estate Industry.
The American Land Title Association (ALTA), using the Texas legislation as a starting point, worked with the Mortgage Bankers Association (MBA) to release a model bill for RON in 2017. The ULC added RON to the Uniform Law on Notarial Acts (RULONA), which was originally promogulated in 2010. New Section 14A dealing with remote notarization was added in 2018. ULONA has been enacted in 12 states: Colorado, Idaho, Iowa, Minnesota, Montana, North Dakota, Oregon, Pennsylvania, Rhode Island. Vermont, Washington, and West Virginia. See Uniform Law Commission (ULC), Law on Notarial Acts, Revised Law on Notarial Acts, Revised – Uniform Law Commission (2018), https://www.uniformlaws.org/committees/community (last visited May 20, 2019).
The authors of the model did not include any participants from the oil and gas industry. The act centered around the real estate and mortgage industries. Because RON applies to documents requiring notarization, it affects the oil and gas industry when it comes to the recordation of documents. Although, the needs of the oil and gas industry were not specifically considered, the security provisions implemented by the act, as discussed later, provide for a secure manner of notarization that applies in all instances of use of RON.
2. A Discussion of RON Applying the Texas Act Emulated by the ALTA Model Act.
In Texas, RON was the result of Texas House Bill 1217 (HB 1217), which became effective July 1, 2018. HB 1217 made the following statutory changes to various codes in Texas allowing for RON implementation:
a. RON Changed the Texas Civil Practice and Remedies Code Chapter 121.
The Texas Civil Practice and Remedies Code Chapter 121, Acknowledgments & Proofs of Written Instruments, was amended to expand the definition of personal appearance to include, “an interactive two-way audio and video communication.” See Tex. Civ. Prac. & Rem. Code, Chapter 121.006(5)(c)(2) and (5)(d). Thus, a continuous feed transmitted over a internet connection is now a vehicle for a notary to remotely take an acknowledgment or sworn statement. See “Love, R. & Flowers, C.” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 1. This new vehicle for a notarization was made expressly subject to the new Subchapter C, Online Notary Public, of Chapter 406 of the Texas Government Code, discussed below.
The Secretary of State was authorized and directed to adopt rules and standards by July 1, 2018. The final rules and standards were adopted August 19, 2018.
b. Texas Government Code Chapter 406 was Amended to Support RON.
Chapter 406 of the Government Code now includes Subchapter C, entitled Online Notary Public. Subchapter C includes the following:
The new subchapter included new terminology with the following definitions:
a. “Credential analysis” by a third party;
b. “Electronic” and “Electronic document” to encompass non-paper documents;
c. “Electronic notarial certificate,” “Electronic seal,” and “Electronic signature” to capture the act of online notarization by a notary;
d. “Identity proofing” by a third party; and
e. “Notarial act”, “Online notarization”, “Online notary public”, “principal”, and “Remote presentation” to structure and standardize RON. See Tex. Gov’t Code Ann. §406.101.
The new terminology outlines new ways of authentication of documents- verifying the correct person is signing the document – using identity proofing and credential analysis as discussed further below. These methods are in addition to the notary seeing the person visually through the video feed and comparing with signer’s state issued photo ID. The notary visually looking at the signer and the signer’s ID was the only method used where notarization takes place with the notary and the signer in the same room. Additionally, the required technology provides for a linking of the signature, identity, and document to the time it was signed thus creating an audit trail.
D. RON also Requires Consent.
As with the UETA, RON also requires the consent of the parties to conduct the notarization using the online technology. The technology captures the parties’ verification of their consent at the beginning of the transaction process so the consent can be recorded before the signer proceeds to signing and acknowledgment. Proof of that consent is captured by the technology and the consent is verifiable in the future, if needed.
E. RON Provides for Methods of Confirming the Identity of the Signer.
1. Knowledge Based Authentication (KBA).
The signer must correctly answer dynamic knowledge-based authentication questions provided by a reputable third-party vendor. This consists of a series of timed, personal questions, which only the true signer should be able to answer. See The Mortgage Industry Standard Maintenance Organization, Inc. (MISMO) Standards for Remote Online Notarization.
2. Credential Analysis.
The signer presents an ID that will be subjected to a technological credential analysis to confirm the ID is not fraudulent or modified. RON service providers must use automated software processes to aid the notary with their role in verifying each signer’s identity. See id. The ID must pass an authenticity test using technology to confirm that the credential is not fraudulent or inappropriately modified. This requires the technology to use information held or published by the issuing source of the ID or authoritative sources, as available, to confirm the validity of credential details. Confirmation of all this information must be accomplished during the notary session, and the output of the authenticity test is provided to the notary. The output may simply indicate a “pass” or “fail”. See id.
3. Visual Confirmation.
The ID is compared to the person being viewed in real time through the audio-video transmission. See id. The notary will view the picture on the ID and compare with the visual of the signer through the audio video transmission. Before RON, the only method to confirm identification was an in person visual confirmation.
F. RON Adds an Additional Notary Commission.
In Texas, Sections 406.105 – .107 of Subchapter C of the Government Code, also went to great lengths to create a new position and commission for an “online notary public.” Only a licensed “online notary public” may perform an “online notarization.” The online notary must first qualify and be commissioned as a traditional notary. That notary may then go the extra step to obtain the online notary license simply by filing an application. Of course, the application and process are “on-line”. See “Love, R. & Flowers, C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land and Institute, at Page 1. Once the application is filed, the commission will be approved without any educational requirements or additional training.
G. Document Retention is Required by RON.
Perhaps the greatest burden an online notary public will face is the record retention requirement included in the model act and in Texas. Specifically, Section 406.108 of the Texas Government Code requires the notary to keep a “secure electronic record of electronic documents notarized by the online notary public.” Section 406.108 includes the actual video and audio conference as a part of the specific storage requirements. The record must be backed-up, tamper proof, secure, and maintained for 5 years. See id.
The real estate and mortgage industries both have current record retention requirements imposed by their various state and national regulator. The oil and gas industry, however, has not been subject to such requirements. Nevertheless, if the landman or attorney wants to obtain a license as a remote online notary to conduct the online notarization themselves, the landman or attorney will have to meet the document retention requirement.
H. The Principal and the Notary May be in Different Locations.
The Texas version of the rule, Section 406.110 of the Texas Government Code, specifically states that RON can be used regardless of where the principal is physically located at the time of the online notarization. The code does not say the notary can be located elsewhere in another state. See id., at Page 3. Traditional legal theory has been that a notary loses his/her authority once outside the jurisdiction of licensure. See National Notary Association website, nationalnotary.org and American Association of Notaries, texasnotary.com. And, of course, a Texas notary must be a Texas resident, or a resident of a contiguous state but acting in Texas. Nothing is said about an online notary licensed under another state’s laws taking an acknowledgment of a Texas resident’s signature, wherever the Texas resident may be. See “Love, R. & Flowers, C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 3.
1. Regulations were Added by the Secretary of State to Implement RON.
Some of the other states’ legislation included both the actual creation of RON and the rules governing the process. However, in Texas, the legislation did not include the rule making. The Secretary of State proceeded, as directed by the legislature, and promulgated rules that were adopted August 19, 2018, after a period for public comment. These rules were codified in the Texas Administrative Code, Chapter 87, Notary Public. The Secretary of State chose to repeal the existing rules for notary publics, reorganize, and adopt new rules. See id.
The new rules implemented modern consistent administrative provisions to track the Government Code as amended. These rules outline the procedure for the submission of the Online Notary application. Again, it is important to note, an applicant must already be a notary public, and then, the notary can apply for an online notary commission. The application is required to be completed and submitted online. See “Love, R. & Flowers, C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 2. The online notary is a distinct and separate commission on top of the standard notary commission. See id. The online notarization and notary seal will indicate that the notarization is remote and by a commissioned remote online notary. See Tex. Admin. Code §§87.0, et seq. In addition, the electronic technology will utilize “Public Key Infrastructure (PKI) technology from a PKI service provider that is X.509 compliant.” See id. PKI is a set of hardware, software, processes, policies and procedures that enable the secure use of digital signatures and encryption.
See Wikipedia contributors. (2019, June 13). Public key infrastructure. In Wikipedia, The Free Encyclopedia. Retrieved 18:32, June 17, 2019, from https://en.wikipedia.org/w/index.php?title=Public_key_infrastructure &oldid=901665342.
The provisions of Chapter 87 detail the records required to be retained. The recording shall include, at minimum: (1) confirmation by the notary public that the principal has successfully completed identity proofing and credential analysis; (2) visual confirmation of the identity of the principal through visual inspection of the credential used during credential analysis; and (3) the actual notarial act performed. If the principal is personally known to the online notary public, the audio-visual conference shall include a statement to that effect and a recording of the actual notarial act performed. See Tex. Admin. Code §87.41.
On the issue of whether the online notary must be physically located in Texas at the time of the notarization, Section 87.41(a) states, “An online notarization may only be performed by a notary who is commissioned as an online notary public.” See id. This could be read to require a Texas commissioned online notary for Texas property. However, there is not current recorded cases clarifying this issue. Nevertheless, it would be logical that if the parties are in Texas and dealing with Texas property, the notary must be commissioned in Texas.
In this connection, however, one must remember that the Texas rules only apply to Texas notaries. This does not address the outstanding question of using out of state remote on-line notaries with a notary commission issued by another state to notarize when the signing parties are located in Texas. Another question arises as well as if the signing party is physically located outside of Texas and the notary is commissioned in another state. See “Love, R. & Flowers, C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 3.

IV. RON PRESENTS ISSUES COMMON AMONG THE STATES.
As previously discussed, RON has been adopted in a variety of states. Although there is a model act created by industry, the ULC has not promulgated a uniform act. The ULC did revise the RULONA to include RON; however, the committee has not indicated it would be addressing any other uniform act covering the other issues raised by RON. As a result, the states that continue to adopt RON may do so by using the framework adopted by another state or the model legislation created by ALTA and TMBA. However, nothing keeps the states from adopting their own unique version. Because the subject matter of RON is unique and the industry cooperative efforts have identified issues associated with RON that should be addressed in any proposed legislation, there are common issues identified that should be addressed in the states’ legislation. Without a uniform act proposed by ULC, the states are left to piece the legislation together themselves.
A. Mandatory Disclosure.
Any legislation introduced should require the disclosure of the use of remote online notarization in the notarial certificate. See Mortgage Bankers Association—American Land Title Association: Model Legislation for Remote Online Notarization, §8(4). Prior to the use of RON, the party’s consent is necessary. The idea of this disclosure is to make it transparent the transaction involved a RON.
B. Multifactor Authentication (discussed in detail above).
Any Legislation should require identity to be verified through the following processes using public and private/proprietary data sources: (1) remote presentation of a government-issued credential; (2) credential analysis; and (3) identity proofing. See ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization §8(2)(b). Retrieved May 20, 2019, from https://www.alta.org/advocacy/ online-notarization.cfm. Virginia’s and Montana’s statutes provide for no regulation regarding these three means of multifactor authentication. Montana is updating their statute in 2019 to bring it more in line with the model act. Vermont’s statute allows the use of RON but has no prescriptive measures. Vermont’s law will not become effective until the Secretary of State promulgates rules and that process has been slow. Utah and Idaho just passed their legislation following this provision of the model act. States that do not provide for this security make other states nervous regarding accepting their notaries’ acknowledgments. If a state that has no requirements for authentication, licenses a RON notary and does not prohibit that notary from working outside the state, it could compromise the stability of the land records in states that went to great lengths to require security and authentication requirements.
C. Audio-Video Recording.
Any legislation should require the creation and retention of an audio-video recording of the notarial act and define what should specifically retained similar to required by the Secretary of State in Texas. See ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization §§6(2)—(4). Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm. Most of the states who adopted legislation have this requirement.
D. Location of the Notary.
As previously discussed, the location of the notary was left open ended in Texas. The proponents of any legislation may want to consider requiring the notary to be physically located within the state where the parties and property are located while performing RON.
See ALTA.org, & Mortgage Bankers Association. (n.d.). Checklist for Conforming Laws Related to Remote Online Notarization (“RON”). Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm. See also ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization §1(2) & §5. Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm.
Virginia, Texas, and Michigan failed to delineate this requirement. California has debated this point in considering its legislation. Most of the other states adopted a form of the model act and addressed this issue.
E. Location of Signer.
The laws should specifically allow the signer, whose signature is being notarized, to be located outside the state at the time of RON.
See ALTA.org, & Mortgage Bankers Association. (n.d.). Checklist for Conforming Laws Related to Remote Online Notarization (“RON”). Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm. See also ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization §2 & §3. Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm.
F. Secure Technology.
The law should require secure technology that restricts access to electronic notarial records, requires venders and notaries to take precautions in preparation and transmission of electronic records, and determine if access to the records should be granted to some third parties like a title agent, escrow agent or title insurer engaging the notary.
See ALTA.org, & Mortgage Bankers Association. (n.d.). Checklist for Conforming Laws Related to Remote Online Notarization (“RON”). Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm. See also ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization §6(3) & §§7(1)—(3). Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm.
This is a subject the oil and gas industry should weigh in on to provide guidance as to what third parties can later have access to the records. In the case of the oil and gas industry parties, the definition of third parties should at least be expanded to address access by the company that currently owns the oil and gas lease or interest. The model act provides the “parties” shall be provided access. Of course, that would include the parties who had their signatures notarized. This concept limits any company wherein its officers, who executed the documents, might not be the parties the company needs to access the documents later. Companies in states where this legislation has already passed without consideration of the variation in parties that may need later access may want to seek reforms to that legislation.
G. Retention of Data.
The laws adopted should allow the notary to designate a third-party repository to hold the recording and electronic journal on their behalf.
See ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization §6(4). Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm.
The states adopting RON have retention requirements ranging from five to ten years.
H. Fees.
The MBA-ALTA Model act and the RULONA amendment do not address fees for RON. Fees will most likely be regulated by the individual states’ statutes. The language in each state varies. Currently, the Virginia legislation does not provide for a set fee. A Montana and Michigan notary public may charge a fee not to exceed $10 for each notarial act. Indiana’s notary fee is $15 for each notarial act. Tennessee, Minnesota, Ohio, Texas, Utah and Nevada notaries can charge $25 for each notarial act.
I. Defective Acknowledgments.
The drafters of the law should consider whether they want documents filed with defective acknowledgments to be constructive notice to third parties and decide what the effect a defective acknowledgement should have upon recording. One alternative would be to implement a short statute of limitations for challenging the document based solely upon a defective remote online acknowledgment. Texas’s legislation did not address this issue. The subsequent legislative attempt to address this issue by imposing a statute of limitations in Texas did not make it out of the legislature. Therefore, in Texas the existing laws regarding the effect of defective acknowledgments for paper documents would appear to apply to RON documents.

V. Recording Laws.
A. State Laws Should Confirm a Document Utilizing RON can be Recorded.
Any law addressing RON should confirm that an electronic document notarized by RON is recordable in the official land records and, once recorded, will serve as constructive notice to third parties. The law should include a provision to allow the electronic documents to be printed out to a paper document in a form that will be accepted for recording by the recorders (“papering out”) who do not have electronic recording capabilities.
See ALTA.org, & Mortgage Bankers Association. (n.d.). Model Legislation for Remote Online Notarization, Pages 7-9. Retrieved May 20, 2019, from https://www.alta.org/advocacy/online-notarization.cfm.
Virginia, Montana, Texas, Nevada, Utah, and Indiana did not include any “papering out” provisions. The legislation in Vermont, Michigan and Ohio is not clear. Texas revisited this issue in the 2019 Legislature and passed a revision to allow “papering out” effective September 1, 2019.
B. Why is “Papering Out” Important?
The Texas Property Code, Chapter 12, Recording of Instruments, governs the recording of real property conveyances in Texas. As discussed above, as in many other states, in Texas, recording is necessary to impart constructive notice of the document to third parties. See Tex. Prop. Code, Ch. 13, Effects of Recording. Section 12.001 of the Texas Property Code addresses an acknowledgment by a notary, but it does not contemplate a remote online notarization, which necessarily involves an electronic signature and an electronic document. See “Love, R. & Flowers,
C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 3.
Section 12.0011, Instruments Concerning Property, Original Signature Required for Certain Instruments, defines a “Paper document” as a document received by a county clerk in a form that is not electronic. See id. A remote online-notarized document is obviously an electronic document, not a paper document. This section becomes important when addressing the question of recording a remote online notarized document that needs to be “papered out,” or printed/copied, to be recorded in a county that does not electronically record. When the document is printed out, it becomes a paper document, but it is questionable whether it meets the requirements for recording a paper document. See id.
The existing law in Texas states a paper document may not be recorded unless it contains an original signature that is acknowledged, or the paper document is attached as an exhibit to an affidavit that has an original acknowledged signature. The provision allowing an affidavit to be attached was not comprehensive enough to apply to an electronic document. The legislation passed in Texas effective September 1, 2019 does provide a method for the electronic document to be printed out and the affidavit of a notary attached to authenticate the document as a true copy of the electronic document. This presented two immediate problems – one of the main features of remote online notarization is the avoidance of paper documents, and if an affidavit is used, how will the recorder index the affidavit so that it will appear in the chain of title? A second notary will also be required to acknowledge the signature of the affiant on the affidavit proving up the “papered out” document with an original signature of the second notary. Therefore, there would still have to be an original signature on the affidavit. See “Love, R. & Flowers, C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 3. The original signature on the affidavit must be obtained from someone that is in the county where the property is located enabling the document to be recorded if the document is going to be recorded in person at the recorder’s office. Otherwise, the document must be sent by mail for recording, which brings in the possibility for the original affidavit verifying the electronic document to be lost.
Section 12.0011(c) also provides that an original signature “may not be required” for an electronic instrument that complies with the requirements of Chapter 15, Texas Property Code; Chapter 195, Local Government Code; Chapter 322, Business & Commerce Code; or “other applicable law.” Chapter 15 is the Uniform Real Property Electronic Recording Act adopted in 2005 in Texas. The Act allows the recording of electronic documents if the county clerk chooses to implement electronic recording. Also, 15.005(b)(3) allows the conversion of paper documents into an electronic form by the county clerk. See id. It is the practice in counties where electronic recording is available for the title company or attorney to make a copy of the original document and send to the county clerk through their electronic recording system.
Chapter 195 of the Local Government Code establishes the rules by which electronic documents may be recorded. Section 195.003 limits the persons who may file electronically. Persons who may file electronically with the county clerk must be: (1) an attorney licensed in the state; (2) a bank savings and loan association, savings bank or credit union doing business under law of the United States or this state; (3) a federally chartered lending institution, a federal government-sponsored entity, and instrumentality of the federal govern, or a person approved as a mortgagee by the United States to make federally insured loans; (4) a person licensed to make regulated loans in the state; (5) a title insurance company or title insurance agent licensed to do business in this state; (6) an agency of this state; or (7) a municipal clerk. If the County has a population of 500,000 or more, the Section also provides for the county to authorize a person to file electronic documents with a county clerk if the county enters into a memorandum of understanding with the person for that purpose. See Local Government Code, Chapter 195.003. The provision does not apply in a county smaller than 500,000. Clearly, a landman is not listed on the list to be able to electronically record at the county clerk’s office. However, an attorney is on the list authorized to electronically record. Therefore, this part of the statute appears to be a barrier for the landman attempting to electronically file an oil and gas lease unless a memorandum of understanding is reached with each county clerk in the large counties. This issue should be addressed at the state legislature level to include members of the oil and gas industry who typically file documents for similar purposes as the real estate industry. The states implementing RON with “papering out” provisions, thus allowing the second notary to attest that the document is a true and correct copy of the electronic original, would enable landmen to file documents in person at the recorder’s office or by mail.
Of course, on the real estate side, the already existing practice is a conversion of a “wet” signature original document to a pdf or other electronic document by the title company or attorney for filing electronically through the county clerk’s system. Clearly, an electronically signed document may be recorded in a county with electronic recording. See “Love, R. & Flowers, C.,” (December 2018). What’s the Legal Basis for Ron? Texas Land Title Institute, at Page 4. The problem facing landmen is to be sure the legislation includes the landman as one of the persons authorized to electronically record using the clerk’s electronic recording system. Primarily, in Texas the area of the state with oil and gas activity does not include the counties with the large populations so the landman taking leases in those areas utilizing RON and electronic documents would not be able to electronically regard.
1. “Papering Out” – How to Solve the Issue of Recording.
The fix for this situation in Texas, and other states, would be to alter the existing law to permit the recording of a paper document that is a copy of an electronic document remotely online notarized. The current version of the model act envisions simply recording a copy of the remotely notarized document, apparently assuming chain of custody and the remote notary seal will satisfy concerns regarding alteration or possibly fraud and forgery. As mentioned above, the Texas proposed solution was to attach an affidavit from a notary verifying the document is the original that has not been tampered with. Such a law would also need to direct the clerk as to indexing the document to provide notice via a grantor/grantee search. See id. If the law is not specific as to how the document should be indexed, many clerks would index the affidavit verifying the document by the affiant instead of the true grantor/grantee in the document. Thus, the instrument could be lost and not show up in the chain of title of either the grantor or grantee.
The new legislation in Texas expanded the permissible types of “paper documents” defined in Property Code Section 12.0011 allowed to be recorded to include a copy of an electronic record declared to be a true and correct copy of the electronic record by affidavit (as set out in the proposed Section 12.0013) by a notary public or other officer who may take an acknowledgment or proof of a written instrument under Section 121.001, Civil Practice and Remedies Code. See Tex. Prop. Code §12.0011(b); see also Senate Bill 2128, 86th Legislature, 2019-2020.
Rather than have the original remote online notary provide an affidavit verifying the electronic document, the affiant of a prove-up affidavit could be another notary who is able to confirm the authenticity of the document by confirming the document has not been tampered with. The declaration confirming the document has a signature and a seal of the notary attesting to the declaration. The idea of having two notaries in the transaction in a county where there is no electronic recording seems very cumbersome. The original notary may not be in the county where the document needs to be recorded. Yet, ideally the document should be able to be recorded in person at the clerk’s office without transmitting the document through the mail.
The idea of any notary being able to confirm the authenticity of the document is a departure from the persons allowed to electronically file in Local Gov’t Code 195.003. This would have typically been a title company employee but could be a lender or attorney. The proposed legislation in Texas provides a form for the Declaration of Authenticity to be used. As discussed above, this change opens the door in the oil and gas arena for the landman to be the notary that can attest to the electronic document and then file that document as if it was a paper document at the county clerk’s office.
In addition, the Local Government Code Chapter 193 in Texas will be amended effective September 1, 2019, to provide for indexing by the grantor/grantee of the exhibit document (being the copy of the electronic document) instead of indexing using the affiant of the affidavit. Additionally, Chapter 12 of the Property Code will be amended effective September 1, 2019, to add Section 12.0013, which would direct a county clerk to record a paper or tangible copy of an electronic record if the paper or tangible copy of the electronic record: (1) contains an image of an electronic signature or signatures that are acknowledged, sworn to with a jurat, or proved according to law; and (2) has been declared by a notary public or other officer who may take an acknowledgment or proof under Section 121.001, Civil Practice and Remedies Code, to be a true and correct copy of the electronic record.
A notary public or other officer who may take an acknowledgment or proof under Section 121.001, Civil Practice and Remedies Code, may declare that a paper or tangible copy of an electronic record is a true and correct copy of an electronic record by: (1) executing and attaching an official seal to a tangible paper declaration under penalty of perjury; and (2) affixing or attaching the declaration to the printed paper or tangible copy of an electronic record.
As a result of the legislation, the County Clerk must accept an electronically notarized document for recording if printed out and certified by a notary to be a true and complete copy of an electronic original. Such a provision would allow recordation of electronic documents in jurisdictions that do not currently accept electronic recordings.

VI. OTHER ISSUES.
A. Statute of Limitations for Defective Acknowledgments using RON.
In Texas, there is no separate statute of limitations to cut off challenges to remote notarization, the acknowledgment, and the recording. Not unlike the two-year statute currently in place for acknowledgments, a straightforward two-year statute makes sense, possibly dropping the current limiting language for a “ministerial defect.” See Tex. Civ. Prac. & Rem. Code §16.033 and Title Examination Standard 4.20. However, the move toward creating a separate statute of limitations in Texas for the RON stalled. As mentioned before, the only statute of limitation applicable would apply the same for RON as any traditional acknowledgment.
B. Jurisdictional Requirements.
As discussed, whether a notary has the right to acknowledge documents for parties outside the state where they are commissioned, and whether each state requires a notary to be commissioned in the state where the property or people are located, presents an issue as to the acceptance of the notarization of documents between states. Hopefully, time will take care of this issue as more states adopt legislation addressing jurisdictional requirements for a physical presence of a notary licensed under any state laws and more states adopt legislation addressing reciprocity issues from state to state. Additionally, the issue may be solved if the ULC drafted a uniform RON act or revised the RULONA and the URPREA to promote reciprocity.
C. Amendments to the Model Act.
The MBA and ALTA are collectively addressing technical standards but also modifications to the uniform model bill. Texas has been somewhat of a lead in this area, but all states will want to be observant as to any national trends or requirements. There might be positive changes made to include the landman and oil and gas attorneys if the American Association of Professional Landmen could weigh in with the other associations on changes that would include the needs of the land professional.
D. Title Insurance Coverage.
ALTA may also take affirmative steps to provide title insurance coverage for documents remotely notarized. Arguably, the Texas policy insuring language for Covered Risk 2. (a) (iii), (iv), (vi) already addresses this:
(iii)a document affecting title not properly created, executed, witnessed, sealed, acknowledged, notarized or delivered;
(iv) failure to perform those acts necessary to create a document by electronic means authorized by law:
(vi) a document not properly filed, recorded or indexed in the Public Records including failure to perform those acts by electronic means authorized by law.
E. Where is the Original?
The idea of a wholly electronic contract that is not a type of document that needs to be filed of record raises questions. If the document has been memorialized by recording in the public records, the document is always locatable. When RON is utilized, the notary or third-party vendor will have control of the executed documents for at least some period, and the document can be accessed by the parties. But what if the document is not the type of contract that would require recording? What is the original? Where is the original located? How would a party prove the document is authentic?
There is no case law interpreting RON. There is older case law interpreting UETA that can be analogous. If the document is wholly electronic, courts apply the usual rules of evidence. In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.
See §1.00 Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal. App. 4th 836 – Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 2014- Discussed authenticating a signature. Any writing must be authenticated before the writing, or secondary evidence of its content, may be received in evidence. (Evid. Code, § 1401; People v. Valdez (2011) 201 Cal.App.4th 1429, 1435 [135 Cal.Rptr.3d 628]; People v. Goldsmith (2014) 59 Cal.4th 258, 271 [172 Cal.Rptr.3d 637, 326 P.3d 239].) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400, italics added; People v. Valdez, supra, at p. 1435 [proponent met its burden of producing evidence to show authenticity of writing “`when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.'”]; People v. Skiles (2011) 51 Cal.4th 1178, 1187 [126 Cal.Rptr.3d 456, 253 P.3d 546] [“[W]riting can be authenticated by circumstantial evidence and by its contents.”].).
Certainly, if a document is fully electronic and is not recorded in the public records or held by a third-party vendor by agreement, the loss of the fully electronic document could be a total loss. Parties who desire to conduct business with totally electronic documents must pay attention to the back up of their electronic data. How could you prove to the court the document ever existed? The storage of electronic documents requires a layered backup system, so the electronic document is not lost. If a party undertakes handling their own document storage, much attention should be paid to redundancy.
F. Title Opinions Reviewing Documents that are Totally Electronic.
As time goes on, more and more documents will be electronically recorded, including documents that are totally electronic in nature. Title opinions covering oil and gas interests, just like commitments for title insurance coverage, have not made a distinction between paper documents sent for recording versus paper documents that have been electronically recorded. Additionally, title examiners have not commented on electronic documents electronically recorded. Because the legality of electronic documents and signatures has been around for almost twenty years, title attorneys general accept either method of recording. However, there is not any notation on those documents as to whether the documents were paper documents with original signatures recorded in the record or paper documents with original signatures that were converted to a pdf and filed electronically.
Most RON legislations require the acknowledgment of the document and notary stamp to disclose that the document was notarized with the use of RON. The landmen and attorneys doing title examinations and title opinions need to understand the RON legislation and rules in the states where they practice. Following the same reasoning as to the use of UETA and URPERA, where title opinion requirements were not made, if those laws and rules condone the use of RON, the use of electronic documents/signatures and acknowledgments need not be addressed in title opinions.

VII. ADVANTAGES OF RON.
A. No Mail Outs.
With the use of RON, documents will no longer have to be mailed out to the signers. Every time documents are mailed or transmitted by a private carrier such as “fed ex,” those documents are at risk to be lost. When the documents are returned, there is always a possibility the signer did not sign in all the required places. The RON process and technology tags all the locations in the documents where a signature or initial is needed so none are left off.
Sometimes documents are mailed out to accommodate the parties’ schedules. When a party cannot be present at a specific time, the party may utilize a power of attorney. The possibility of fraud increases with the use of powers of attorney in these instances of accommodating the parties. The utilization of RON should avoid the overuse of powers of attorney executed just for the convenience of the parties.
Signers using RON are not limited to any particular hours to sign the document. Notaries or vendors providing the notarization service can do so at any hour of the day or night. Additionally, once executed, the documents are immediately available to the parties. Once again, obtaining the “original” does not depend on the documents being returned by the mail or fed ex several days later.
B. Landmen and Attorneys May Want to Consider a Third-Party Vendor.
As noted in numerous places throughout this paper, the requirements surrounding RON are complicated and onerous. It is difficult, if not virtually impossible, for an individual landman or attorney to meet the security and retention requirements. As happens many times with regulatory changes, an entire industry has appeared to provide the services of RON for parties to utilize. Many of these vendors are flexible. Their service is reasonably priced and often less than utilizing a “mobile notary” (notary in a car) to drive to the parties’ location and notarize a document.
In choosing a vendor, depending on the client’s priorities, the landman or attorney might consider whether they can have an option to virtually attend the signing with the signer and the notary. In real estate, some vendors are accommodating the title agent conducting the entire closing using the virtual audio-video medium with the commissioned online notary doing the notarial act. Another option for the landmen, attorneys or their legal assistants is to become a commissioned RON notary themselves but use the vendor to provide the technology and document retention.
An additional consideration in choosing a vendor would be their retention of documents policy. Depending on the client’s requirements, the length of time the vendors keep the documents on the company’s behalf can be negotiated with the vendor. The vendors will provide information regarding methods to access the documents and train personnel on its use.

VIII. RISKS OF RON.
A. Unauthorized Access.
Access to electronic notarial records, electronic signatures and seals should be kept secure from unauthorized access or use. It may be impossible to make any electronic document tamper-proof; but, through the application of technology, the electronic document can be made tamper-evident, so that any changes made after execution can be easily detected. Most available technologies have this function.
B. Fraud.
Fraudulent manipulation of documents and complete forgeries have always been a threat to the oil and gas and real estate industries. Some of the fraud encompasses the forgery of signing someone else’s name and/or filing a false document. Although the new technology does not alleviate these issues, it goes a lot further than the current day practices to deter forgeries. Remember, under the current practice of notarization the only method the notary has of verifying a person’s identity is looking at the person’s ID and looking at the person sitting in front of them. The notary must decide in that moment if the picture in the ID is in fact that person. The notary has no way to verify that the ID is even official or real. As discussed above, RON technology requires additional authentication avenues that lead to more secure process.
C. Mistakes and Errors.
As with all transactions, electronic transactions are susceptible to mistakes and errors. UETA provides rules for determining the effect of such errors. “If the parties agree to use a security procedure to detect unintended changes or errors, and one party does not comply with the security procedure, the complying party may avoid the effect of the error or change to the electronic record. See Tex. Bus. & Com. Code Ann. §322.010(b)(c). If an automated transaction involves an individual on one side and an electronic agent on the other, the individual may avoid the effect of an erroneous electronic record if two requirements are met. First, the electronic agent must not have provided an opportunity to prevent or correct the error. Second, when the individual learned of the error, the individual: 1) promptly notified the other party; 2) took reasonable steps to return or destroy any consideration received; and 3) did not use or receive any benefit or value from the received consideration.” See id. at (c)(d).
If neither of the above rules apply, the legal effect of any changes or errors will be determined by the parties’ contract or by other applicable laws, including the law of mistake. See id. at (d). While the UETA procedures for avoiding the effect of certain erroneous transactions do not apply to all possible mistakes and errors involving electronic transactions, they do provide some guidance. Unfortunately, UETA does not address important security issues such as forgery, hacking, cyber-attacks and other forms of fraud. Parties must attempt to protect themselves from these potential abuses using security procedures such as passwords and encryption along with appropriate insurance coverage.
Interestingly, with the addition of RON, its requirements may reduce the number of mistakes and errors. The technology enables the parties to view the documents to be executed in advance. The idea is that if the parties review the documents beforehand, this extra time may allow mistakes to be discovered before execution of the documents.

IX. UTILIZATION OF RON IN THE OIL AND GAS INDUSTRY.
Obviously, an industry person who is dealing with documents required to be notarized can utilize RON to accommodate their clients. For example, a landman can be present from a distance with the lessor while the lessor executes an oil and gas lease enabling the landman to answer questions that arise without traveling miles to the lessor’s location anywhere in the country. Similarly, company representatives required to execute documents that require acknowledgments can execute at their convenience. Additionally, multiple companies’ representatives can appear around a virtual closing table for discussions and execution of documents requiring notarizations without travel. Likewise, those parties buying mineral interest or royalty interest can “close” that transaction around a virtual closing table and have the deeds or assignments executed immediately avoiding the time delay for mailing out documents thus preventing interference from outside forces. The documents are instantly available to all parties.

X. ELECTRONIC DOCUMENTS, SIGNATURES, NOTARIZATIONS AND RECORDING WILL CONTINUE TO AFFECT CURRENT PRACTICES.
In summary, the authorities for electronic signatures, notarization, and recording have existed for almost twenty years. The online notarization statutory implementation introduces only a few new concepts with no real change to the underlying act of notarization. The methods of identity proofing and credential analysis required are far more robust than the security of the current practice of in-person notarizations. The secure storage requirements implemented as a requirement for the notary also accommodates needed access of the documents by the signers. And, perhaps the most far reaching change is in the definition of “presence,” which was expanded so that the person signing the document requiring notarization does not have to be in the same room with the notary.
The concept of a “solely electronic” document, signed electronically and notarized electronically in the presence of the notary or by using RON and finally recorded electronically is logical. With the recognition that “personal appearance” can be achieved via the internet, the next step, of course, must be to implement the RON process as uniformly as possible in all states with adequate safeguards and requirements. The process must accommodate parties that may buy, sell, lease, or borrow against real property located in areas where electronic recording is not feasible or otherwise adopted. The national model act overlooked this, as did Texas. Yet, even those transactions may be electronic with the implementation of a “papering out” provision with the use of RON. Other issues remain, including the use of notaries in other states, without the safeguards provided in the Texas legislation and the model act, remotely notarizing transactions affecting real property of another state. The technology developed around RON can detect any access or changes made to the document proving the authenticity of the electronic document. For real estate, the title insurance underwriters can make choices and requirements about the use of RON in transactions where title insurance will be issued. But what about the oil and gas industry? Attention to current legislation already adopted to add provisions recognizing the specific needs of the oil and gas industry might be called for. Further attention by the industry is certainly called for in states still contemplating the form of their legislation. The technology is now available, and the benefits are obvious. Thus, hopefully, the oil and gas industry will begin to take advantage of these benefits and embrace the move to the fully electronic document.

Filed Under: Publication Tagged With: Celia Flowers

Bail Bond Handbook For Texas Counties

November 21, 2017 by Will Mokry

Author: Robert Davis

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View The Bail Bond Handbook Here

Filed Under: Publication Tagged With: Robert Davis

Jail Litigation: From Class Action Lawsuits To Pro Se Litigation

November 21, 2017 by Will Mokry

Author: Robert Davis

  1. IMMUNITY

As with any claim asserted against a government employee or official, the first line of defense is the affirmative defense of immunity from suit, either absolute or qualified.  Consequently, a good understanding of both of these types of immunity is very important to the practitioner.

The modern doctrine of immunity, either qualified or absolute, is the result of explicit judicial balancing of adverse interests which are implicated in suits brought by private persons allegedly injured by the acts of public officials.  See Butz v. Economou, 98 S. Ct. 2909, 2912 (1978).  On one hand, there is the private desire to obtain redress from governmentally imposed injuries; as well as, the public interest in both punishment and deterrence of official wrongdoing.  Id.  On the other hand, there is the public aim of shielding officials from liability so that they do not become overly cautious in the performance of their duties.  See Harlow v. Fitzgerald, 102 S. Ct. 2727, 2736‑38 (1982); Butz, 98 S. Ct. at 2909‑12; see also The Supreme Court, 1981 Term, 96 Harv. L. Rev. 4, 229 (1982); Schuck, Suing Our Servants:  The Court, Congress, and the Liability of Public Officials for Damages, 1980 Sup. Ct. Rev. 281, 281‑85 (1980). 

  1. Absolute Immunity

As courts have weighed the conflicting values inherent to the immunity concept, the courts have acknowledged that the scales do not always tip evenly.  Butz, 98 S. Ct. at 2909‑12.  For those officials whose governmental functions are especially sensitive or whose constitutional status requires complete protection from suit, the Supreme Court has recognized an absolute immunity defense.  Eastland v. United States Servicemen’s Fund, 95 S. Ct. 1813, 1821 (1975)(legislators have absolute immunity for acts in their legislative capacity); Stamp v. Sparkman, 98 S. Ct. 1099, 1108 (1978)(judges have absolute immunity for acts in their judicial capacity); Imbler v. Pachtman, 96 S. Ct. 984, 994‑95 (1976)(prosecutors have absolute immunity for acts in initiating and pursuing a prosecution); Butz, 98 S. Ct. at 2912.  (other executive officers have absolute immunity for performing prosecutorial or adjudicative functions); Nixon v. Fitzgerald, 102 S. Ct. 2690, 2704 (1982)(The President of the Unites States is protected by absolute immunity).

As a general rule, the doctrine of absolute immunity will only come into play in jail suits when the Plaintiff attempts to assert a cause of action against individual county commissioners or individual city councilman for the performance of their legislative functions.  When this does occur,  the individual commissioners and councilman (including the mayor and the county judge) are entitled to an absolute immunity from suit for the performance of their legislative functions.

  1. Qualified Immunity

Officials whose functions do not require complete insulation from liability are not protected by the doctrine of absolute immunity.  Butz, 98 S. Ct. at 2909‑12.  Instead, these individuals have been accorded a qualified immunity.  Id.  (qualified immunity recognized for certain Executive Branch officials); Scheuer v. Rhodes, 94 S. Ct. 1683, 1692‑93 (1974)(qualified immunity recognized for governors and their aides); Pierson v. Ray, 87 S. Ct. 1213, 1218‑19 (1967)(qualified immunity recognized for police officers).

Prior to 1982, the court utilized a two‑prong, subjective/objective test for qualified immunity.  See Wood v. Strickland, 95 S. Ct. 992, 1000‑01 (1975).  Under this test, public officials had the burden of proving their good faith.  See id.  Many courts, under this test, considered the subjective element to be a question of fact, and this approach was criticized in Harlow, 102 S. Ct. 2727, 2737‑38 (1982).  The court reasoned that this approach was not workable because, in part, substantial costs were being accumulated to litigate the subjective good faith of governmental officials.  Id.  These costs included the risk of trial, distraction of officials from their governmental duties, inhibition of discretionary actions, and deterrence of able people from entering public service.  Id. at 2737.

As a result of the hardships under the subjective/objective test, the Supreme Court eliminated the subjective element of the qualified immunity test.  Id. at 2738.  The Court concluded that utilizing the new standard would allow many claims to be resolved by summary proceeding.  Id. at 2738‑39.

As a general rule, under the doctrine of qualified immunity, government officials are shielded from liability as long as their actions can reasonably be thought consistent with the rights they are alleged to have violated.  Anderson v. Creighton, 107 S. Ct. 3034, 3038 (1987).  In other words, government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable officer would have known. Harlow, 102 S. Ct. at 2738.  For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable person would understand that what he was doing would violate that right.  Melear v. Spears, 862 F.2d 1177, 1183 (5th Cir. 1989).

  1. Stay Of Discovery Or Disclosure Pending Ruling On Immunity Issue

A district court should freeze pre‑trial discovery until the district court can determine whether a substantial basis for the defense of qualified immunity exists.  Elliot v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985).  Officials should be free not only from ultimate liability, but also from discovery and other pre‑trial concerns, if they are entitled to qualified immunity.  Id.  This rule was fashioned due to the fact that qualified immunity is an immunity from suit, and extends beyond just a defense of liability.  Id.  A defendant who raises a meritorious issue of qualified immunity is entitled to dismissal before the commencement of discovery, and courts have the obligation to carefully scrutinize a plaintiff’s claim prior to subjecting a public official to the unnecessary burdens that a civil trial of this nature can bestow.  Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986).

  1. SUPERVISORY LIABILITY ‑‑ WHEN IS A SUPERVISOR LIABLE

For a supervisor to be held liable under section 1983, the supervisor must either be personally involved in the acts causing the deprivation of an individual’s constitutional rights, or there must be some other causal connection between an act of the supervisor and the constitutional violation sought to be addressed.  Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983); C‑1 by P‑1 v. City of Horn Lake, 775 F. Supp. 940 (N.D. Miss. 1990).  To state a claim against a supervisory official, in his individual capacity, a plaintiff must plead and prove that the supervisory official was personally responsible for the plaintiff’s alleged constitutional deprivation or was responsible for the plaintiff’s alleged constitutional deprivation in accordance with case law governing the liability of supervisory officials for constitutional violations committed by their subordinates.  Doe, 733 F. Supp. at 252 (E.D. Tex. 1990) (citing Thompkins v. Belt, 828 F.2d 298 (5th Cir. 1987)).  Consequently, a supervisory official, in his individual capacity, may only be subject to suit a if plaintiff can plead and prove:  1) the official’s affirmative participation in acts causing the constitutional deprivation, or 2) the official implemented an unconstitutional policy that caused plaintiff’s injury.  Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992); see Thompkins, 828 F.2d at 304; Doe, 733 F. Supp. at 258.  Under Section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.  Thompkins, 828 F.2d at 303; Doe, 733 F. Supp. at 258. Without personal involvement on the part of the supervisor, the plaintiff is required to establish that the supervisor failed to supervise the employees adequately, the failure was grossly negligent and the failure to supervise caused the constitutional violation.  Bigford, 834 F.2d at 1220; Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986).

Additionally, the supervisory official may also be entitled to qualified immunity from suit.  The supervisory official will not be subject to suit if the objective circumstances warranted a belief that the alleged unconstitutional conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  Doe, 733 F. Supp. at 258 (quoting Harlow 102 S. Ct. at 2738).

To state a claim against a supervisory official, a plaintiff must plead and prove that the supervisory official was personally responsible for the plaintiff’s alleged constitutional deprivation or was responsible for the plaintiff’s alleged constitutional deprivation in accordance with case law governing the liability of supervisory officials for constitutional violations committed by their subordinates.  Doe, 733 F. Supp. at 252 (citing Thompkins, 828 F.2d 298).

A supervisory official, in his individual capacity, may only be subject to suit  if a plaintiff can plead and prove:  1) the official’s affirmative participation in acts causing the constitutional deprivation, or 2) the official implemented an unconstitutional policy that caused plaintiff’s injury.  Mouille, 977 F.2d at 929; see Thompkins, 828 F.2d at 304; Doe, 733 F. Supp. at 258.  Under Section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.  Thompkins, 828 F.2d at 303; Doe, 733 F. Supp. at 258.  Without personal involvement on the part of the supervisor, the plaintiff is required to establish that the supervisor failed to supervise the employee adequately, the failure was grossly negligent and the failure to supervise actually caused the constitutional violation.  Bigford, 834 F.2d at 1220; Hinshaw, 785 F.2d at 1263.

Moreover, in addition to the stringent requirements set forth above, a supervisory official is also entitled to qualified immunity from suit.  The supervisory official will not be subject to suit if the objective circumstances warranted a belief that the alleged unconstitutional conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  Doe, 733 F. Supp. at 258 (quoting Harlow 102 S. Ct. at 2738).

The causation standard in 42 U.S.C. Section 1983 is generally a proximate cause standard.  Proximate cause in the 42 U.S.C. Section 1983 actions includes components of cause in fact and foreseeability.  Nettles v. Griffith, 883 F. Supp. 136 (E.D. Tex. 1995).

III.    SPECIFIC CONSTITUTIONAL VIOLATIONS THAT INMATES FREQUENTLY ASSERT

  1. Medical Claims 
  1. Pretrial Detainees

A pretrial detainee has a Fourteenth Amendment right to be free from punishment altogether and must be afforded reasonable medical care.  Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir. 1993).  Consequently, pretrial detainees “are entitled to reasonable medical care unless the failure to supply that care is reasonably related to a legitimate governmental objective.”  Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987); see also Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992); Jones v. Diamond, 636 F.2d 1364, 1378 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950 (1981).   To cite some specific examples, a private physician under contract to provide medical services to a county jail is not liable to a detainee who suffered from AIDS, under 42 U.S.C. Section 1983 or under the Texas Tort Claims Act, for alleged insufficient medical treatment, as the detainee was given reasonable medical care and suffered no adverse effects from time spent in jail.  Burton v. Cameron County, 884 F. Supp. 234 (S.D.Tex. 1995).

  1. Convicted Felons

To prevail on an Eighth Amendment claim for deprivation of medical care, a prisoner must prove that care was denied and that such denial constituted a “deliberate indifference to serious medical needs, constituting unnecessary and wanton infliction of pain.”   Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985) (citing Estelle v. Gamble, 97 S. Ct., 285, 291 (1976)).   In Estelle, Mr. Gamble complained repeatedly to prison authorities of severe pains in his back, chest, arms and legs.  Estelle, 97 S. Ct. at 288‑89.  Additionally, he complained of “blank outs.”  Id. at 288‑89.   Despite his repeated complaints, Gamble was only given examinations in the prison infirmary, pain pills and muscle relaxants for months.  Id. at 288‑89.  After continuing his complaints in the face of disciplinary action for shirking work, Gamble was placed in administrative segregation and given quinidine as treatment for irregular cardiac rhythm.  Id. at 288‑89.  Although Gamble had repeatedly made known his subjective feelings of substantial pain to prison officials, the district court dismissed Gamble’s complaint for failure to allege facts sufficient to support a conclusion of deliberate indifference.  Id. at 288‑89.  The Fifth Circuit Court of Appeals reversed and remanded the case with instructions to reinstate the complaint.  Id. at 293.  The Supreme Court then reversed the Fifth Circuit and held that the district court’s decision should have been affirmed as it related to the claim for deprivation of medical care.  Id. at 293.

In the wake of Estelle, the Fifth Circuit has held that to state a claim alleging deliberate indifference to serious medical needs of a prisoner, a plaintiff must plead facts showing an unnecessary and wanton infliction of pain prescribed by the Eighth Amendment.  See Johnson, 759 F.2d at 1238.  The facts underlying a claim of deliberate indifference must clearly evidence the medical need in question and the alleged official dereliction.  Id.  at 1238 (citing Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981)).  The legal conclusion of deliberate indifference, therefore, must rest on facts clearly evidencing wanton actions on the part of the defendants.  Id. at 1238.  As stated in Johnson, the Supreme Court defined the common law meaning of wanton in some detail:

Wanton means reckless ‑‑ without regard to the rights of others . . ..  Wantonly means causelessly without restraint, and in reckless disregard to the rights of others.  Wantonness is defined as a licentious act of one man towards the person of another, without regard to his rights;  it has also been defined as a conscious failure of one charged with the duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with the knowledge of such peril, and being conscience of the inevitable or probable results of such failure.

Id. at 1238; see also Walker v. Butler, 967 F.2d 176 (5th Cir. 1992).  Finally, mere negligence, neglect, or medical malpractice is insufficient to state a claim.  Graves v. Hampton, 1 F.3d 315 (5th Cir. 1993); Mendoza v. Lynaugh, 889 F.2d 191 (5th Cir. 1993);  Field v. Bosshard, 590 F.2d 105 107 (5th Cir. 1979).  As stated in Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir. 1982), cert. denied, 103 S. Ct. 1438 (1983):

The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves, nor the therapy that Medicare or Medicaid provide for the aged or needy.  It prohibits only deliberate indifference to serious medical needs.

Id. at 1149.

Moreover, a delay in medical care can only constitute an eighth amendment violation if there has been deliberate indifference, which results in substantial harm.  Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).  Plaintiff must establish both of these crucial elements to defeat a motion for summary judgment.  See id.

In the context of medical claims, it has also been held that an individual entering jail on a probation or parole violations charge is a convicted felon and is protected by the Eighth Amendment’s prohibition against cruel and unusual punishment rather than the Fourteenth Amendment.  See generally Van Cleave v. U.S., 854 F.2d 82 (5th Cir. 1989), citing Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1983).  Consequently, in the Fifth Circuit, a convicted inmate, even if  he is in jail on a probation or parole revocation charge, has to assert a claim that officials were deliberately indifferent to his or her serious medical needs, and a showing of nothing more than negligence cannot state a claim.   Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).

Simple disagreement with the medical treatment received or a complaint that the treatment received has been unsuccessful is insufficient to set forth a constitutional violation.  Johnson, 759 F.2d at 1238; see also Varnado v. Lynaugh, 920 F. 2d 320 (5th Cir. 1991).  Even if the jail medical staff committed malpractice in dealing with an inmate’s medical needs, this would not suffice to state a constitutional claim.  Varnado, 920 F.2d at 323.  Likewise, differing medical opinions, and even negligent medical attention, without more, do not support a claim under 42 U.S.C. Section 1983.  Burrell, 158 F.R.D. 104.  Stated simply, a disagreement between an inmate and his or her physician concerning whether certain medical care was appropriate is not actionable under 42 U.S.C. Section 1983.  Vanuelos v. McFarland, 41 F.3d 232 (5th Cir. 1995).

To cite some specific examples, a prisoner has no claim against prison officials under 42 U.S.C. Section 1983 for allegedly being given medicine that had been dropped on the floor and medicine not meant for him.  Freeze v. Griffith, 849 F.2d 172 (5th Cir. 1988) (the inmate did not take any wrong medicine and never suffered an ill effects from taking medicine that had fallen on the floor).  An inmate’s allegation that medical treatment was administered without his consent and forced upon him after he previously tested positive for tuberculosis did not constitute deliberate indifference toward the medical needs of the prisoner nor did it constitute cruel and unusual punishment.  McCormick v. Stalder, No. 96‑30415 (Feb. 19, 1997) 1997 W.L. 40596.  Finally, it has been held that an inmate failed to state an actionable claim for deliberate indifference to serious medical needs when he was denied an elevated bed, since the inmate saw doctors on numerous occasions, received physical therapy, heat applications, medication and other medical care designed to assist his recovery.  Burrell, 158 F.R.D. 104.

From a purely evidentiary standpoint, medical records of sick calls, examinations, diagnoses,  and medications may rebut an inmate’s allegations of deliberate indifference to serious medical needs.  Vanuelos, 41 F.3d 232.  As with most areas of law enforcement, documentation can be the key to avoiding liability.

  1. HIV‑positive Detainees

Courts have held that a prison may segregate inmates with HIV without violating the constitution, although no court has imposed a duty on prisons to segregate such prisoners.  Oladipupo v. Austin, 104 F.Supp.2d 626, (W.D. La. 2000); contrast Muhammad v. Carlson, 845 F.2d 175 (8th Cir.1988) (upholding prison’s segregation of HIV‑infected inmates) and Cordero v. Coughlin, 607 F.Supp. 9 (S.D.N.Y.1984) (holding that segregation of inmates with AIDS did not amount to cruel and unusual punishment or violate inmates’ equal protection or free association rights), with Robbins v. Clarke, 946 F.2d 1331 (8th Cir.1991) (failure to segregate HIV‑positive prisoners from the general population held not to constitute cruel and unusual punishment) and Glick v. Henderson, 855 F.2d 536 (8th Cir.1988) (finding prison official’s decision not to institute AIDS testing and segregation program was not unreasonable);  see also Feigley v. Fulcomer, 720 F.Supp. 475 (M.D.Pa.1989) (rejecting claim that failure to require segregation constituted cruel and unusual punishment);  Woods v. White, 689 F.Supp. 874 (W.D.Wis.1988) (holding that prisoner had a right to privacy which was violated by disclosure of his HIV‑positive status to non‑medical prison personnel and other inmates), aff’d, 899 F.2d 17 (7th Cir.1990).  In light of the precedent discussed above, jails are not under an affirmative duty under the constitution to segregate those detainees with HIV from the non‑infected detainees.

  1. Denial Of Access To The Courts And Access To Legal Materials
  2. Inmates Are Entitled To An Adequate Law Library Or Adequate Assistance But There Is Room For Alternatives Other Than A Law Library.  Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977).

As stated by the Supreme Court in Bounds:

We hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.  In a footnote (FN17), the Court went on to state, in pertinent part, “our main concern here is ‘protecting the ability of an inmate to prepare a petition or complaint.’”

Bounds, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72.

 

However, even the Bounds Court held that alternatives were acceptable.[1]  It should be noted that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision here, as in Gilmore, does not foreclose alternative means to achieve that goal.  Nearly half the States and the District of Columbia provide some degree of professional or quasi‑professional legal assistance to prisoners.  Bryan v. Werner, 516 F.2d 233 (CA3 1975); Gaglie v. Ulibarri, 507 F.2d 721 (CA9 1974); Corpus v. Estelle, 409 F.Supp. 1090 (SD Tex.1975).

Additionally, the Court held that this is not to say that economic factors may not be considered, for example, in choosing the methods used to provide meaningful access.  Bounds, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72.  But the cost of protecting a constitutional right cannot justify its total denial.  Id.

In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (2002), the Supreme Court further clarified its holding in Bounds by holding as follows:

The foregoing analysis would not be pertinent here if, as respondents seem to assume, the right at issue‑‑the right to which the actual or threatened harm must pertain‑‑were the right to a law library or to legal assistance.   But Bounds established no such right, any more than Estelle established a right to a prison hospital.   The right that Bounds acknowledged was the (already well‑established) right of access to the courts.   E.g., Bounds, 430 U.S., at 817, 821, 828, 97 S.Ct., at 1492‑1493, 1494, 1498.   In the cases to which Bounds traced its roots, we had protected that right by prohibiting state prison officials from actively interfering with inmates’ attempts to prepare legal documents, e.g., Johnson v. Avery, 393 U.S. 483, 484, 489‑490, 89 S.Ct. 747, 748, 750‑751, 21 L.Ed.2d 718 (1969), or file them, e.g., Ex parte Hull, 312 U.S. 546, 547‑549, 61 S.Ct. 640, 640‑642, 85 L.Ed. 1034 (1941), and by requiring state courts to waive filing fees, e.g., Burns v. Ohio, 360 U.S. 252, 258, 79 S.Ct. 1164, 1168‑1169, 3 L.Ed.2d 1209 (1959), or transcript fees, e.g., Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 590‑591, 100 L.Ed. 891 (1956), for indigent inmates.  Bounds focused on the same entitlement of access to the courts.   Although it affirmed a court order requiring North Carolina to make law library facilities available to inmates, it stressed that that was merely “one constitutionally acceptable method to assure meaningful access to the courts,” and that “our decision here … does not foreclose alternative means to achieve that goal.” 430 U.S., at 830, 97 S.Ct., at 1499.   In other words, prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.”  Id., at 825, 97 S.Ct., at 1496.

Prison officials have considerable discretion in choosing the mechanism and forms of assistance they will furnish to prisoners for the purpose of allowing prisoners to file non‑frivolous legal claims.  Brinson v. McKeeman, 992 F. Supp. 897, 909-12 (W.D. Tex. 1997).

While the precise contours of a prisoner’s right of access to the courts remains somewhat obscure, the Supreme Court has not extended this right to encompass more than the ability of an inmate to prepare and transmit a necessary legal document to a court. Brinson, 992 F. Supp. 897, 909-12 (W.D. Tex. 1997);see Brewer v. Wilkinson, 3 F.3d at 821.   See also Lewis v. Casey, 518 U.S. at ‑‑‑‑, 116 S.Ct. at 2179‑81;  Norton v. Dimazana, 122 F.3d at 290;  and Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir.1996).

 

  1. Actual Injury Required

 

An inmate must be Prejudiced by Denial of Access.  McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998).  Before a prisoner may prevail on a claim that his constitutional right of access to the courts was violated, he must demonstrate “that his position as a litigant was prejudiced by his denial of access to the courts.”  McDonald, 132 F.3d at 230-31, Eason, 73 F.3d at 1328 (citing Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir.1993)).

As the Supreme Court in Lewis stated:

Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense.   That would be the precise analog of the healthy inmate claiming constitutional violation because of the inadequacy of the prison infirmary.  Insofar as the right vindicated by Bounds is concerned, “meaningful access to the courts is the touchstone,” id., at 823, 97 S.Ct., at 1495 (internal quotation marks omitted), and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.   He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known.  Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.  Although Bounds itself made no mention of an actual‑injury requirement, it can hardly be thought to have eliminated that constitutional prerequisite.   And actual injury is apparent on the face of almost all the opinions in the 35‑year line of access‑to‑courts cases on which Bounds relied, see id.,  at 821‑825, 97 S.Ct., at 1494‑1497.  Moreover, the assumption of an actual‑injury requirement seems to us implicit in the opinion’s statement that “we encourage local experimentation” in various methods of assuring access to the courts.  Id., at 832, 97 S.Ct., at 1500. One such experiment, for example, might replace libraries with some minimal access to legal advice and a system of court‑provided forms such as those that contained the original complaints in two of the more significant inmate‑initiated cases in recent years, Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)‑‑forms that asked the inmates to provide only the facts and not to attempt any legal analysis.   We hardly think that what we meant by “experimenting” with such an alternative was simply announcing it, whereupon suit would immediately lie to declare it theoretically inadequate and bring the experiment to a close.  We think we envisioned, instead, that the new program would remain in place at least until some inmate could demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.

  1. Right to Law Library Access Or Legal Assistance Not Unlimited

Prisoners have a constitutional right of meaningful access to the courts through adequate law libraries or assistance from legally trained personnel.  McDonald, 132 F.3d at 230-31; Degrate v. Godwin, 84 F.3d 768, 768‑69 (5th Cir.1996) (quoting Bounds, 430 U.S. at 828).   Nevertheless, this constitutional guarantee does not afford prisoners unlimited access to prison law libraries.   Limitations may be placed on library access so long as the regulations are “reasonably related to legitimate penological interests.”  McDonald, 132 F.3d at 230-31; Lewis, 518 U.S. 343, (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261‑62, 96 L.Ed.2d 64 (1987));  see also Eason, 14 F.3d at 9‑10  (right of meaningful access to courts may be narrowed under certain circumstances).

Additionally, restrictions on direct access to legal materials may even be warranted when prison security is involved.  Brinson, 992 F. Supp. at 909-12; see Eason, 73 F.3d at 1329; Morrow v. Harwell, 768 F.2d 619, 622 (5th Cir.1985).

  1. Inmates’ Access Limited To Claims That Attack Their Sentences, Directly Or Collaterally, And Challenge The Conditions Of Their Confinement

In Lewis, 518 U.S. 343, the Court stated as follow:

In other words, Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip‑and‑fall claims.   The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.   Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

Lewis, 518 U.S. 343.  In explaining the rationale for this holding, the Lewis Court stated:

Finally, we must observe that the injury requirement is not satisfied by just any type of frustrated legal claim.  Nearly all of the access‑to‑courts cases in the Bounds line involved attempts by inmates to pursue direct appeals from the convictions for which they were incarcerated, see Douglas v. California, 372 U.S. 353, 354, 83 S.Ct. 814, 815, 9 L.Ed.2d 811 (1963);  Burns, 360 U.S., at 253;  Griffin, supra, at 13, 18, 76 S.Ct., at 588, 590; Cochran v. Kansas, 316 U.S. 255, 256, 62 S.Ct. 1068, 1069, 86 L.Ed. 1453 (1942), or habeas petitions, see Johnson v. Avery, supra, at 489, 89 S.Ct., at 750‑751; Smith v. Bennett, 365 U.S. 708, 709‑710, 81 S.Ct. 895, 896‑897, 6 L.Ed.2d 39 (1961);  Ex parte Hull, supra, at 547‑548, 61 S.Ct., at 640‑ 641.  In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), we extended this universe of relevant claims only slightly, to “civil rights actions”‑‑i.e., actions under 42 U.S.C. § 1983 to vindicate “basic constitutional rights.”  418 U.S., at 579, 94 S.Ct., at 2986.  Significantly, we felt compelled to justify even this slight extension of the right of access to the courts, stressing that “the demarcation line between civil rights actions and habeas  petitions is not always clear,” and that “[i]t is futile to contend that the Civil Rights Act of 1871 has less importance in our constitutional scheme than does the Great Writ.” Ibid.

  1. Some Additional Assistance May Be Required For The Illiterate Or Non-English Speaking Inmate

In Lewis, 518 U.S. 343, the Supreme Court addressed this problem as follows:

When any inmate, even an illiterate or non‑English‑speaking inmate, shows that an actionable claim of this nature which he desired to bring has been lost or rejected, or that the presentation of such a claim is currently being prevented, because this capability of filing suit has not been provided, he demonstrates that the State has failed to furnish “adequate law libraries or adequate assistance from persons trained in the law,” Bounds, 430 U.S., at 828, 97 S.Ct., at 1498 (emphasis added).  Of course, we leave it to prison officials to determine how best to ensure that inmates with language problems have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.  But it is that capability, rather than the capability of turning pages in a law library, that is the touchstone.

  1. Prisoner Who Waives Appointed Counsel And Other Arbitrary Denial

A prisoner who knowingly and voluntarily waives appointed representation by counsel in a criminal proceeding is not entitled to access to a law library for purposes of that proceeding. Brinson, 992 F. Supp. at 909-12; see Degrate, 84 F.3d at 769.

  1. Prisoners In Administrative Segregation

Arbitrary limitations and restrictions on access to legal materials, without the assistance of persons trained in the law, and without the ability of inmates in administrative segregation to examine legal digests, hornbooks, and other legal materials firsthand is unconstitutional.  Brinson, 992 F. Supp. 897, 909-12 (W.D. Tex. 1997); see Eason, 14 F.3d at 8, 9‑10, (holding that allegations of a total denial of all access to the prison law library for 25 days following a prison riot stated a constitutional violation); Pembroke v. Wood County, Texas, 981 F.2d at 229, (holding that the total denial of all access to the law library for seven months violated the plaintiff’s constitutional right of access to the courts), citing Morrow, 768 F.2d at 622, (holding that access to a weekly bookmobile coupled with circumscribed assistance from law students was insufficient to afford meaningful access to the courts);  and Green v. Ferrell, 801 F.2d 765, 772 (5th Cir.1986), (holding that allowing inmates to select volumes twice each week from a list of books available in the County law library and limiting inmates to no more than two volumes at a time violated the inmates’ rights to meaningful access to the courts).

  1. No Constitutional Right To File Frivolous Lawsuits

Finally, prisoners possess no constitutionally‑protected right to file frivolous lawsuits. Brinson, 992 F. Supp. 897, 909-12 (W.D. Tex. 1997); see Johnson v. Rodriguez, 110 F.3d 299, 310‑13 & 316 (5th Cir.1997), cert. denied, 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997).

  1. Inmates Are Allowed to Assist Each Other On Legal Matters

In Johnson, 393 U.S. 483,, the Supreme Court struck down a regulation prohibiting prisoners from assisting each other with habeas corpus applications and other legal matters.  Johnson was unanimously extended to cover assistance in civil rights actions in Wolff, 418 U.S. at 577‑580,; see Bounds, 430 U.S. at 828.

However, prisoners possess no right to the assistance of any particular other prisoner or writ writer as long as the constitutional right of access to the courts by the putative recipient of such assistance is not infringed.  Brinson, 992 F. Supp. at909-12 (W.D. Tex. 1997); see Tighe v. Wall, 100 F.3d 41, 43 (5th Cir.1996).

  1. Inmates Must Receive Paper, Pens, Notaries And Stamps

It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents with notarial services to authenticate them, and with stamps to mail them.  See Bounds, 430 U.S. 817.  States must forgo collection of docket fees otherwise payable to the treasury and expend funds for transcripts.  Id.  It is well‑established in this Circuit that access to typewriters and copy machines is not an essential part of the right of access to the courts.  Brinson, 992 F. Supp. at 909-12; see Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988), (holding that denial of access to carbon paper and reproduction equipment and denial of face‑to‑face access to other inmates did not deprive an inmate of his right of access to the courts);  and Eisenhardt v. Britton, 478 F.2d 855 (5th Cir.1973).  There simply is no constitutional right of access to carbon paper, reproduction equipment, or to face‑to‑face meetings with other inmates possessed by pretrial detainees or prisoners.  Brinson, 992 F. Supp. at 909-12; See Beck v. Lynaugh, 842 F.2d at 762.

  1. States Must Pay For Lawyers For Indigent Defendants

State expenditures are necessary to pay lawyers for indigent defendants at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and in appeals as of right.  See Bounds, 430 U.S. at 828 (citing prior authority).

  1. Appointment of Counsel in Civil Rights Case

Generally, there is no right to the appointment of counsel for indigent prisoners bringing section 1983 cases. See e.g., Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir.1986). This court is vested with discretion to appoint counsel when doing so would advance the proper administration of justice; however, this court is not required to do so unless the case presents exceptional circumstances. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982) (citing 28 U.S.C. § 1915(d)); Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982). A finding of exceptional circumstances depends on the following factors: (1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is in a position to adequately investigate his case; and (4) whether the evidence will consist in large part of conflicting evidence that would require skill in the presentation of evidence and in cross examination. Jackson, 811 F.2d at 262 (citing Ulmer, 691 F.3d at 213). In addition, this court may consider whether appointing counsel will “aid in the efficient and equitable disposition of the case.” Id.

Although section 1983 cases are often complex, this factor alone does not warrant a finding of exceptional circumstances. See id. (citing Branch, 686 F.2d at 266). Franklin has demonstrated an adequate ability to present his claims and to investigate the facts and evidence related to his claims. His ability to adequately present his case is demonstrated in his complaint and accompanying brief in which he provided this court with an understanding of his claims and the bases and law upon which he supports his claims. In addition, he articulated very clearly his claims and the facts attendant to his claims at his Spears hearing.  Finally, the evidence in this case does not consist of conflicting testimony that would require skill in presentation or cross examination because the evidence which the court must consider consists entirely of authenticated records, which comport with his testimony at the Spears hearing.

  1. Excessive Use Of Force Claims
  1. Arrestees

Currently, allegations of excessive use of force on arrestees implicate the Fourth Amendment’s guarantee of freedom from “unreasonable seizures.”  See Graham v. Conner, 109 S. Ct. 1865, 1870‑71 (1989); Mouille, 977 F.2d at 927.  Under the broad definition in Graham, seizure was defined as a “means or show of force or show of authority, . . . in some way restraining the liberty of a citizen.”  Graham, 109 S. Ct. at 1871; Mouille, 977 F. 2d at 927.  All claims that officers used excessive force in the course of an arrest must be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than a substantive due process approach.  Graham, 109 S. Ct. at 1871; Mouille, 977 F.2d at 927 n. 4.   In Graham, the Court also stated that determining whether the force used to effect a particular seizure was “reasonable” under the Fourth Amendment required a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interest against the countervailing governmental interest at stake.  Id.  The reasonableness of a particular use of force must be judged from the prospective of a reasonable officer on the scene, and the calculus of  reasonableness must allow for the fact that police officers are often forced to make split second judgments, in circumstances that are tense, uncertain and rapidly evolving, about the amount of force that is necessary in a particular situation.  Id.  In determining whether the force used to effect a particular seizure as “reasonable” under the Fourth Amendment, the question is whether the officers actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regards to their underlying intent or motivation.  Id.

 

The law in the Fifth Circuit prior to Graham was that the substantive due process clause of the Fourteenth Amendment governed such claims.  Mouille, 977 F.2d at 927.  Thus, when determining whether an officer was cloaked by qualified immunity for claims occurring prior to the Court’s decision in Graham, the Court still applies the Fourteenth Amendment standard as set out in Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981) in making a determination of whether a reasonable officer would have known that he or she was violating clearly established statutory or constitutional rights of which a reasonable person would have known.  See Mouille, 977 F.2d at 928.

  1. Convicted Felons

Prior to 1992, the test as it related to convicted felons was that to make out a claim for excessive use of force, there had to be: 1) a significant injury; 2) that resulted directly and only from a use of force that was clearly excessive to the need; and the excessiveness of which was; 3) objectively unreasonable.  Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989).  The significant injury prong of the Johnson holding was, of course, called into doubt by Hudson v. McMillian, 112 S. Ct. 995, 997 (1992) (excessive force claim in eighth amendment context even without significant injury).  Mouille, 977 F.2d at 929; King v. Chide, 974 F.2d 653, 657 (5th Cir. 1992).  Indeed, the Fifth Circuit has held that the Supreme Court’s decision in Hudson “makes clear that we can no longer require persons to prove significant injury as we had used that term for years, under section 1983.”  Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir. 1992).  As a result, the Plaintiff is only required to prove some injury that is not deminimous.  Harper v. Harris County, 21 F.3d 597 (5th Cir.), rehearing denied, 29 F.3d 626 (5th Cir. 1994).

  1. Pre-trial Detainees

The ultimate question in the Fifth Circuit for suits brought by pre‑trial detainees alleging excessive use of force in the context of a prison disturbance is whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically to cause harm, and the focus of this standard is on the detention facility official’s subjective intent to punish.  Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.), cert denied, 113 S.Ct. 2998, (1993).  In making a determination regarding the detention facility official’s subjective intent to punish in a suit brought by a pre‑trial detainee alleging excessive use of force during a prison disturbance, the trier of fact must consider such objective factors as extent of injuries suffered, apparent need for application of force, degree of force exerted, the threat reasonably perceived by the detention facility official and the need to act quickly and decisively.  Id.

  1. Bystander Liability

In the context of the use of excessive force, a police officer or jailer who is present at the scene and who does not take reasonable measures to protect a suspect from another officer’s use of excessive force may be liable for civil rights violations depending on the nature and extent of the alleged excessive use of force.  Hale v. Townley, 45 F.3d 914 (5th Cir.), rehearing denied, 51 F.3d 1047 (5th Cir. 1995).  It is probable that this same rationale would apply in the context of any excessive use of force claim, regardless of whether it is asserted by an arrestee, pre‑trial detainee or convicted felon.

  1. Verbal Threats Do Not Arise To A Constitutional Violation

Verbal threats do not rise to the level of a constitutional violation.  See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002).  Mere allegations of verbal abuse do not present actionable claims under section 1983.  Oladipupo v. Austin, 104 F.Supp.2d 626 (W.D. La. 2000); see Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir.1993).  “[A]s a rule, ‘mere threatening language and gestures of a custodial officer do not, even if true, amount to a constitutional violation.’”   McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.1983) (quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977)).

  1. Food

Inmates have a constitutional right to receive reasonably adequate food.  George v. King, 837 F.2d 705 (5th Cir. 1987).  To be actionable, a plaintiff must show that the jail diet had an adverse effect on his health.  see Newmam v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977) (Constitution does not require that prisoners be provided with any and every amenity which some person might think is necessary to avoid mental, physical, or emotional deterioration).

The Fifth Circuit has instructed that the fact that an inmate misses one meal does not necessarily implicate the inmates’s constitutional rights.   See Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.1999); Green v. Ferrell, 801 F.2d 765, 770 (5th Cir.1986);  see also Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir.1998) (“Missing a mere one out of every nine meals is hardly more than that missed by many working citizens over the same period.”)

  1. Visitation 
  1. General Visitation

Convicted inmates have no constitutional right to visitation.  Lynott v. Henderson, 610 F.2d 340, 342 (5th Cir. 1980).  Instead, for convicted prisoners, visitation privileges are a matter subject to the discretion of the prison officials.  Morrow , 768 F.2d at 172.  Pre‑trial detainees have a right to reasonable visitation, absent a legitimate governmental reason to the contrary.  Id.

  1. Conjugal Visits

It is well settled that “(f)ailure to permit conjugal visits does not deny an inmate a federal constitutional right.” Montana v. Commissioners Court, 659 F.2d 19, 20-23 (5th Cir. 1981) McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971) (federal prisoner).  The State of Texas is not required to permit prisoners conjugal visits.  Montana, 659 F.2d at 20-23; Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978).  While penal authorities in foreign countries have allowed prisoners to continue conjugal relationships with their spouses, no precedent exists for such practices in United States institutions.  See, e.g., Tarlton, 441 F.2d at 385.

  1. Contact Visits

Convicted felons have no right to visitation, and contact visits may be denied pretrial detainees for “legitimate security reasons.”  Montana, 659 F.2d at 20-23.

  1. Grievances

Inmates “do not have a constitutionally protected right to a grievance procedure.”  Oladipupo, 104 F.Supp.2d 626; Brown v. Dodson, 863 F.Supp. 284, 285 (W.D.Va.1994) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991)); Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo.1986) (holding that “an inmate grievance procedure is not constitutionally required”).  “When the claim underlying the administrative grievance involves a constitutional right, the prisoner’s right to petition the government for redress is the right of access to the courts, which is not compromised by the prison’s refusal to entertain his grievance.”  Oladipupo, 104 F.Supp.2d 626; see Flick, 932 F.2d at 729.  A number of courts have held that inmate grievance procedures are not constitutionally required, and so violations of such procedures do not deprive inmates of constitutionally protected rights.  Spencer, 638 F. Supp. at 316, citing O’Bryan v. County of Saginaw, 437 F. Supp. 582 (E.D. Mich. 1977); see also Azeez v. DeRobertis, 568 F. Supp. 8 (N.D. Ill. 1982).  In Mann v. Adams, 855 F.2d 639 (9th Cir.), cert. denied 109 S. Ct. 242 (1988), the Ninth Circuit Court of Appeals noted that inmates have no legitimate claim of entitlement to a grievance procedure, and thus no protected liberty interest exists.  This position was also taken by the Eighth Circuit in Flick, 932 F.2d 728.

  1. Jail Conditions
  1. Convicted Felons

In the context of convicted inmates, the eighth amendment cruel and unusual punishment standard governs the conditions of confinement.  Indicia of confinement constituting cruel and unusual punishment include wanton and unnecessary infliction of pain, conditions grossly disproportionate to the severity of the crime warranting imprisonment, and the deprivation of the minimal civilized measures of life’s necessities.  Wilson v. Lynaugh, 878 F.2d 846, 848 (5th Cir.), cert. denied 493 U.S. 969 (1989).  The Supreme Court has held, however, that to the extent that prison conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.  Rhodes v. Chapman, 452 U.S. 337, 346‑7 (1981).

The Rhodes Court held that any Eighth Amendment analysis must look to the evolving standards of decency that mark the progress of a maturing society, but cautioned that the standards are derived from objective factors.  Rhodes, 452 U.S. at 346.

In compliance with the Supreme Court’s opinion, the Fifth Circuit has stated that the Eighth Amendment does not afford protection against mere discomfort or inconvenience.  Wilson, 878 F.2d at 849.

A plaintiff cannot state a claim by alleging that the conditions were filthy, as in Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457 (5th Cir. 1983); by simply stating that he did not like the time that cleaning supplies were given out.  This does not amount to a claim of constitutional dimensions.

A prison warden’s liability for damages for squalid prison conditions which violated a prisoner’s right to be free of cruel and unusual punishment required a showing that the infliction of harsh conditions was “unnecessary and wanton,” which depended upon a number of factors, including the extent to which the warden knew of the unsanitary conditions, the prisoner’s exposure to conditions, the steps taken to correct conditions, or remove prisoners form unsanitary cells, and what the warden could have done to protect prisoners from those conditions.  McCord v. Maggio, 927 F.2d 844 (5th Cir. 1991).

A prisoner is also required to show significant injury as a prerequisite to a recover in a civil rights claim based on squalid prison conditions, requiring proof that he endured pain, suffering or mental anguish sufficiently significant to justify monetary relief for deprivation of his right to be free from cruel and unusual punishment; however, a prisoner is not required to show “lasting harm.”  Id.

  1. Pre-trial Detainees

In the context of pre‑trial detainees, to determine whether a particular imposition or restriction on a pre‑trial detainee amounts to punishment within the purview of the federal statute governing civil actions for deprivation of rights, the necessary inquiry is whether the disability is imposed for the purpose of punishment or is but incident to other, legitimate governmental purposes.  Simons v. Clemons, 752 F. 2d 1053 (5th Cir. 1985).   Unless there is express intent to punish, the imposition or restriction on a pre‑trial detainee is not a violation of the 42 U.S.C. Section 1983 if there is an alternative purpose to which the imposition may rationally be connected, or unless it appears excessive in relation to the alternative purpose assigned.  Id.  Thus, denial of telephone and recreational privileges while a pre‑trial detainee was in protective custody was not punishment, such as to support a 42 U.S.C. Section 1983 claim, where the placement was for detainee’s own safety and availability of services was subject to personnel restraints.   Grabowski v. Jackson County Public Defender’s Office, 47 F.3d 1386 (5th Cir. 1995).  Similarity, an inmate’s claim that he was temporarily forced to sleep on the jail floor due to overcrowding did not give rise to a violation of his constitutional rights and was not cognizable under 42 U.S.C. Section 1983, especially where there existed a legitimate governmental objective to house violent inmates or recidivists for the protection of the general public, despite existing overcrowded conditions.[2]  Castillo v. Bowles, 787 F. Supp. 277 (M.D. Tex. 1988) (affirmed by the Fifth Circuit in an unpublished opinion), cert. denied, 110 S.Ct. 92 (1989).

  1. Recreation

Convicted inmates do not have a constitutional right, per se, to recreation; however, a deprivation of exercise which impairs health may amount to a constitutional violation under the Eighth Amendment.  Miller v. Carson, 563 F.2d 741, 750‑51 at n.13 (5th Cir. 1977).  The absence of outdoor exercise opportunities may also constitute a violation of the Eighth Amendment.  See Montana, 659 F.2d at 22;  McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.1979).

  1. Due Process
  1. Deprivation of Property

It is necessary, in order to make out a procedural due process claim under Section 1983, for one to allege not only a deprivation of property by State action, but also that State procedures available for challenging the deprivation did not satisfy the requirements of due process.  Collins v. King, 743 F. 2d 248 (5th Cir. 1984).  Indeed, to state a claim under Section 1983 for the alleged violation of due process rights for confiscation or destruction of property, the Plaintiff must allege that he has a recognized liberty of property interest within the purview of the Fourteenth Amendment and that he was intentionally and recklessly deprived of that interest, even temporarily, under color of State law.  Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995); Does v. Taylor Indep. School District, 15 F.3d 443 (5th Cir. 1994), cert. denied, Lankford v. Does, 115 S.Ct. 70 (1995).

  1. Searches in Jail

In Elliott v. Lynn, 38 F.3d 188 (5th Cir. 1994), cert. denied, 115 S. Ct. 1976 (1995), the court held that a visual body cavity search of a prisoner conducted in the general presence of other inmates, guards and non‑searching officers as part of an institution‑wide shake down of the prison was constitutionally reasonable in the context of the prisoner’s rights under the Fourth Amendment for purposes of the prisoner’s 1983 cause of action, despite the fact that the privacy of the prisoner was compromised.  The court held that emergency situations created by increasing number of murders justified the immediate search of inmates, because the crisis required immediate action and because of the large number of inmates. Id.  The facts justified conducting strip searches in the most time‑efficient place and manner available, and this meant a search conducted on collective as opposed to an individual basis.  Id.  It is well settled law that specific articulable facts are required to strip search an individual being booked into the jail.  The best approach to document such specific articulable facts, is to use the decision tree attached as Exhibit1 and file a copy with the book-in sheet.

  1. Jail Disciplinary Proceedings

The role of federal courts in reviewing prison disciplinary proceedings, via civil rights actions, is a narrow one, and the court must uphold the administrative decision unless it was arbitrary and capricious.  Stewart v. Thigpen, 739 F.2d 1002 (5th Cir. 1984).  The court need not review a disciplinary board’s fact findings de‑novo, but need consider only whether the decision was supported by some facts or evidence at all.  Id. 

A prisoner has a claim under 42 U.S.C. Section 1983 for placement in segregation only if he possesses a liberty interest in remaining among the general prison population.  Dzanav v. Foti, 829 F.2d 558 (5th Cir. 1987). Members of a disciplinary committee who hear cases in which inmates are charged with rule infractions, are entitled to qualified, but not absolute immunity, for personal damages for actions violative of United States Constitution.  Cleavenger v. Saxner, 106 S. Ct. 496 (1985).

In reviewing a prison administrative action in a 42 U.S.C. Section 1983 civil rights cause of action, the court must uphold administrative decisions unless they arbitrary and capricious, and a decision is not arbitrary and capricious if it was made by specific exercise of professional judgment and on basis of factors clearly bearing on the appropriateness of the decision.  Gartrell v. Gaylor, 866 F. Supp. 325 (S.D. Tex. 1994).

  1. Violation of State’s or County’s Own Rules

Even though a governmental entity acts in a manor which violates its own rules, or those of the State, there is no due process violation actionable under Section 1983, as long as appropriate individuals ultimately receive adequate process.  Ramirez v. Ahn, 843 F.2d 864 (5th Cir.), rehearing denied, 849 F.2d 1471 (5th Cir. 1988), cert. denied, 109 S.Ct. 1545 (1989).  Action by a governmental entity that violates its own rules or those of the State does not constitute a constitutional deprivation.  Vaga v. Parsley, 700 F. Supp. 879 (W.D. Tex. 1988).

Failure to follow procedural guidelines, standing alone, does not implicate constitutional liability.   Evans, 986 F.2d 104.

  1. Failure To Follow State Laws Or Procedures Does Not Give Rise To A 1983 Claim

The failure of state officials to fulfill their duties under state law does not give rise to a federal constitutional claim.  Brinson, 992 F. Supp. at 909-12; See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996), (holding that a prison official’s failure to follow the prison’s own policies, procedures, and regulations does not constitute a violation of due process if constitutional minima are nevertheless met);  Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir.1995), cert. denied, 516 U.S. 860, 116 S.Ct. 167, 133 L.Ed.2d 109 (1995), (holding that a mere failure to accord procedural protection called for by state law or regulation does not of itself amount to a denial of due process);  Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994), (holding that a state’s failure to follow its own procedural regulations does not constitute a violation of due process if constitutional minima are met);  Murray v. Mississippi Department of Corrections, 911 F.2d 1167, 1168 (5th Cir.1990), cert. denied, 498 U.S. 1050, 111 S.Ct. 760, 112 L.Ed.2d 779 (1991), (holding that alleged violations of a state statute did not give rise to federal constitutional claims);  Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir.1989):  (“A state’s failure to follow its own procedural regulations does not establish a violation of due process, because ‘constitutional minima may nevertheless have been met.’”); and Brown v. Texas A & M University, 804 F.2d 327, 335 (5th Cir.1986), (holding that a state agency’s violations of its own internal regulations did not establish a Due Process violation or otherwise give rise to a constitutional claim).

  1. Jail Suicide

Prison and jail officials have a duty to protect prisoners prone to suicide from self destruction.  Lewis v. Terrebonne, 894 F.2d 142, rehearing denied, 901 F.2d 1110 (5th Cir. 1990).

Failure to provide a pre‑trial detainee with adequate protection from his or her known suicidal impulses is actionable under 42 U.S.C. Section 1983.  Evans, 986 F.2d 104.

A county’s failure to provide continuous observation of a known suicidal pre‑trial detainee did not constitute a deliberately indifferent method of conducting suicide watches, as there was no evidence that periodic checks on suicidal inmates every ten minutes was obviously inadequate.  Rhyne v. Henderson County, 973 F. 2d 386 (5th Cir. 1992).

Additionally, the county’s failure to obtain a commitment order for a suicidal pre‑trial detainee, and instead relying on the county mental health agency to deliver the necessary emergency warrant for a commitment, was not “deliberate indifference,” so as to subject the county to Section 1983 liability.  Id.  No evidence was presented that the mental health agency had ever failed to deliver commitment orders when needed in the past or that any prisoner had ever committed suicide in jail because he could not properly be moved to the state hospital.  Id.  For a pre‑trial detainee to establish a claim for denial of medical care by a jailer, he must show denial of reasonable medical care not reasonably related to a legitimate governmental objective.  Thomas v. Kippermann, 846 F.2d 1009 (5th Cir. 1988).

A police officer’s violation of departmental policy in failing to remove the belt of a prisoner who later hung himself, did not rise to a level of “constitutional deprivation” that might support a Section 1983 claim, as there was nothing in the prisoner’s behavior to alert the officer to the prisoner’s suicidal tendency.  Gagne v. City of Galveston, 671 F. Supp. 1130 (S.D. Tex. 1987), affirmed, 851 F.2d 359 (5th Cir. 1989).

In Martin v. Harrison County Jail, 975 F.2d 192 (5th Cir. 1992), a guard’s assault on a prisoner who was cutting his wrist in a suicide attempt did not involve unconstitutionally excessive force, where the prisoner did not allege how many times he was struck, whether the blows were significant, or how many people hit him.  Guards are obligated to prevent a prisoner from committing suicide, and some force was called for in that case.  Id.

  1. Freedom Of Religion
  1. General Rule

It is axiomatic that inmates may not be deprived of their right to worship as they so choose, given reasonable and necessary governmental reasons to the contrary. Consequently, for any religion recognized as such, an inmate may worship as he sees fit.  However, the Courts have drawn the line at smoking “gonja,” dancing with snakes, and other unreasonable actions.

  1. Designation of Affilitation

Consequently, it has been held that if prison or jail regulations require inmates to designate themselves members of a particular religious group, such as Muslim inmates, the prison or jail may seize and discard religious paraphernalia.  Caffey v. Johnson, 883 F. Supp. 128 (E.D. Tex. 1995).  Indeed, in Caffey, since the inmate did not designate himself as a Muslim in accordance with prison regulation stating that only those prisoners who designate themselves with particular religious groups may possess religious paraphernalia, the inmate’s handkerchief with his Islamic prayer on it and Islamic papers were contraband and it was not unreasonable for a prison officer to seize and discard these items, and, therefore, the officer was entitled to qualified immunity for purposes of inmate’s Section 1983 action.  Id.

  1. Grooming Policy

Inmates have challenged TDCJ’s grooming policies on the ground that they violated their free expression of religion as guaranteed under the Free Exercise Clause of the First Amendment.  Specifically, they have argued that jail policies are unconstitutional if they do not allow beards.   Wearing beards is an accepted means of expressing religious devotion for Muslims, and the Fifth Circuit dealt with the issue of prisoners wearing beards on a number of occasions.   Most notably, in Powell v. Estelle,  959 F.2d 22 (5th Cir.1992), we rejected a challenge to a prison policy forbidding long hair and beards, finding the policy to fall within the discretion granted to prison officials for legitimate penological reasons.   Green v. Polunsky, 229 F.3d 486, 489 (5th Cir. 2000). We have not yet addressed the specific issue of short beards, raised here by Khidar, but other Circuits have done so. Id.  Every Circuit that has considered the issue of short beards under similar circumstances has upheld the prison grooming policies – and the Fifth Circuit joined them, convinced by the logic of their opinions.  Id., see, e.g., Hines v. South Carolina Dep’t of Corrections, 148 F.3d 353, 358 (4th Cir.1998); Harris v. Chapman, 97 F.3d 499, 504 (11th Cir.1996); Friedman v. Arizona, 912 F.2d 328, 332 (9th Cir.1990).

  1.    First Amendment – Publications and Mail

Subject to certain reasonable and necessary limitations, inmates may read what they wish to read.  Along these lines, a county jail’s “publisher only” rule, requiring that all magazines and books received by inmates must be sent directly from the publisher’s authorized distributor, does not violate a prisoner’s civil rights.  Wagner v. Thomas, 608 F. Supp. 1095 (E.D. Tex. 1985).  Allowing an inmate’s family or friends to provide reading materials is a good way for the inmate to smuggle contraband and also takes up a tremendous amount of time for corrections officials to search.  A microdot of L.S.D. (“acid”) can easily be hidden in a magazine or other publication.

Additionally, it has been held that state prison officials do not act outside the scope of their qualified immunity from an inmate’s federal civil rights action for allegedly violating free speech rights by suppressing distribution of a revolutionary publication within the prison system by failing to extricate the portions found threatening to prison security and allowing the remainder to be distributed.  Hernandez v. Estelle, 788 F.2d 1154, rehearing denied, 793 F.2d 1287 (5th Cir. 1986).

The First Amendment rights afforded pretrial detainees are the same as those afforded convicted inmates.   Oladipupo, 104 F.Supp.2d 626; See Bell, 441 U.S. at 545, 99 S.Ct. at 1877.  Before a prison may infringe on the First Amendment rights of its inmates, it must show that any restriction on prisoners first amendment rights is reasonably related to a legitimate penological interest. Oladipupo, 104 F.Supp.2d 626; see Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).  To determine whether the jail’s policy of excluding sexually explicit material “is reasonably related to legitimate penological interests,” and therefore valid, the Courts must consider four factors:  (1) whether there is a valid, rational connection between the policy and the legitimate governmental interest put forward to justify it;  (2) whether there are alternative means of exercising the right;  (3) whether the impact of accommodating the asserted constitutional right will have a significant negative impact on prison guards, other inmates and the allocation of prison resources generally;  and (4) whether the policy is an “exaggerated response” to the jail’s concerns.  Oladipupo, 104 F.Supp.2d 626; see id. at 89‑90, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64.

Under the Fifth Circuit’s law, enunciated in Guajardo, 580 F.2d at 762, before delivery of a publication may be refused, prison administrators must review the particular issue of the publication in question and make a specific, factual determination that the publication is detrimental to prisoner rehabilitation because it would encourage deviate, criminal sexual behavior.  Montana, 659 F.2d at 20-23. Censorship may not proceed according to the whims of the prison administrators.  Id.

  1. Censorship of Mail

A pretrial detainee’s first amendment rights may be violated when incoming or outgoing mail to licensed attorneys, courts, and court officials is searched or censored.  Montana, 659 F.2d at 20-23; Guajardo, 580 F.2d at 758‑59.  Non-legal outgoing and incoming mail may be searched for contraband and censored for legitimate penological reasons.  Incoming or outgoing legal mail may be opened and viewed in the presence of the inmate if the jail has specific articulate facts to believe that the legal mail is a “sham,” is being used to smuggle contraband, or for other specified legitimate penological purposes. 

  1. Cause Of Action For State Created Danger

A Plaintiff seeking to recover based on a theory of “state created danger” must show that the State actor’s increased the danger to the Plaintiff and that the State actors acted with deliberate indifference.  Piotrowski v. City of Houston, 51 F.3d 512 (5th Cir. 1995).

The Fifth Circuit has clearly stated that this court has neither adopted nor rejected the state‑created danger theory.  Priester v. Lowndes, 354 F.3d 414, 422-23 (5th Cir. 2004); McKinney v.  Irving Ind. Sch. Dist., 309 F.3d 308 (5th Cir.2002); McClendon v. City of Columbia, 285 F.3d 1078 (5th Cir.2002). Under the state‑created danger theory, under which a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries that result, we assume that section 1983 liability may arise when:  (1) the state actors created or increased the danger to the plaintiff;  and (2) the state actors acted with deliberate indifference.  Priester, 354 F.3d at 422-23; McKinney, 309 F.3d 308; see also Piotrowski, 51 F.3d 512.

In order for Section 1983 liability to be imposed on a theory of State created danger, the environment created by the State actor must be dangerous, he or she must know it is dangerous, and he or she must have used their authority to create an opportunity that would not otherwise have existed for a third party’s crime to occur, ie, Defendants must have been at least deliberately indifferent to the plight of the Plaintiff.  Johnson v. Dallas Independent School District, 38 F. 3d 198 (5th Cir. 1994).

  1. Claims for Sex in Jail

The Fifth Circuit’s Opinion in Scott v. Moore, 114 F.3d 51, 54-55 (5th Cir. 1997), makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, including sex with an inmate, a pre‑trial detainee must establish that an official acted with subjective deliberate indifference.  Id.  Once a detainee has met this burden, he or she has proved a violation of her rights under the Due Process Clause.  Id.  To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee’s act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee’s constitutional rights.  Id.; see Farmer v. Brennan, 511 U.S. 825, 841, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994) (“It would be hard to describe the Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.”).  In the case of a sexual assault or even admitted sex between a jailer and an inmate, there is never any doubt that the constitutional violation complained of was committed with subjective deliberate indifference to that detainee’s constitutional rights.  Scott, 114 F.3d at  54-55.  The next determination is whether the governmental entity can be held accountable.  Scott, 114 F.3d at 54-55.  Under Hare, as the Fifth Circuit has stated, this latter burden may be met by putting forth facts sufficient to demonstrate that the predicate episodic act or omission resulted from a municipal custom, rule, or policy adopted or maintained with objective deliberate indifference to the detainee’s constitutional rights.   Scott, 114 F.3d at 54-55; see Grabowski, 79 F.3d at 479 (citing Hare, 74 F.3d at 649 n. 4).  Most recently, the Supreme Court has reminded us that for purposes of liability under § 1983, “ ‘deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”  Board of County Comm’rs v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 (1997). 

  1. Female Guards Supervising Male Inmates

In Oliver v. Scott, 276 F.3d 736, 746-47 (5th Cir. 2002), the Fifth Circuit noted that the Fifth Circuit, in an unpublished but precedential opinion,[3] and several other courts of appeals have reached the same conclusion regarding cross‑sex surveillance,[4] i.e., that female guards can view male inmates in shower type situations.

In Letcher v. Turner, 968 F.2d 508 (5th Cir.1992), the Fifth Circuit held that the mere presence of female officers during a strip search of prisoners during emergency circumstances did not violate the Fourth Amendment.   See id. at 510 (emphasis added); Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir. 1999). “A prisoner’s rights are diminished by the needs and exigencies of the institution in which he is incarcerated.   He thus loses those rights that are necessarily sacrificed to legitimate penological needs.”  Elliott v. Lynn, 38 F.3d 188, 190‑91 (5th Cir.1994); Moore, 168 F.3d at 236-37.   However, “searches and seizures conducted of prisoners must be reasonable under all the facts and circumstances in which they are performed.”  United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir.1978); Moore, 168 F.3d at 236-37.   We must balance the need for the particular search against the invasion of the prisoner’s personal rights caused by the search.   See Elliott, 38 F.3d at 191 (citing Bell, 441 U.S. at 558); Moore, 168 F.3d at 236-37.   We must consider the “scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559; Moore, 168 F.3d at 236-37.

  1. Retaliation

It is well established that prison officials may not retaliate against an inmate because that inmate exercised his right of access to the courts.  McDonald, 132 F.3d at 230-31; Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996).  To prevail on a claim of retaliation, a prisoner must establish: (1) a specific constitutional right; (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that right; (3) a retaliatory adverse act; and (4) causation.  Causation requires a showing that “but for the retaliatory motive the complained of incident … would not have occurred.”  McDonald, 132 F.3d at 230-31; Johnson, 110 F.3d at 310 (quoting Woods, 60 F.3d at 1166), cert. denied, 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997).

  1. Trustee Status, Lack of Education/Work Opportunities

The Constitution does not mandate educational, rehabilitative, or vocational programs.  Oladipupo, 104 F.Supp.2d 626; see Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir.1988) (citing Newman v. State of Alabama, 559 F.2d 283, 292 (5th Cir.1977), rev’d in part on other grounds sub nom., Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978)).   Further, a plaintiff has no right to a job in the prison or to any particular job assignment.   Oladipupo, 104 F.Supp.2d 626; see Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir.1986); Garza v. Miller, 688 F.2d 480, 485 (7th Cir.1982); Fuller v. Rich, 925 F.Supp. 459, 462 (E.D.Tex.1995).

  1. Arbitrary Punishments Of A Complete Cellblock

If the punishment of everyone for the violation of one is “arbitrary or purposeless” or “not reasonably related to a legitimate goal,” it may be unconstitutional.  Montana, 659 F.2d at 20-23.

  1. Radio and Television Access

Claims relating to the usage of radio and television have all been properly dismissed as frivolous.  These claims do not pertain to federal constitutional rights.  Montana, 659 F.2d at 20-23; See Lovern v. Cox, 374 F.Supp. 32, 34 (W.D.Va.1974).

  1. Telephone Access

The Fifth Circuit and district courts in the Fifth Circuit have guarded against unreasonable restrictions on telephone use. Montana, 659 F.2d at 20-23; see Feeley v. Sampson, 570 F.2d at 374, and cases cited therein.

  1. THERE IS NO STATE LAW COUNTERPART TO 42 U.S.C. § 1983

There is no Texas counterpart to § 1983, and there is no cognizable state law action for damages for the alleged violation of rights guaranteed under the Texas Constitution.  Bagg v. University of Texas Medical Branch at Galveston, 726 S.W.2d 582, 584 n.1 (Tex. App. ‑‑ Houston [1st Dist] 1987, writ ref’d n.r.e.); Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993), cert. denied, 114 S. Ct. 881 (1994).  Consequently, while some Plaintiffs may attempt to assert claims that sound under the Texas Constitution in Texas Courts, claims for damages are not actionable under the Texas Constitution, because there is no enabling statute under Texas law equivalent to Section 1983.

  1. THE PRISON LITIGATION REFORM ACT

The Congress of the United States adopted the Prison Litigation Reform Act specifically to address the overwhelming number of frivolous inmate lawsuits which are inundating the Federal Court.  The primary portion of the Act requires that inmates show that they are truly in forma pauperis before they will be allowed to file their pleadings at either the District or Appellate Court level.  Under the Prison Litigation Reform Act, inmates filing a civil appeal informa pauperis must file an affidavit listing all assets, as well as submit a certified copy of his or her prison trust fund account statement for the preceding six month period.  Jackson v. Stinett, No. 96‑20720 (December 11, 1996), 1996 W.L. 714352.  Further, the inmate must pay a filing fee upon the filing of his appeal.  Id.  The Prison Litigation Reform Acts amended requirements for informa pauperis certification applies to each case as it was pending on the effective date of the PLRA.  Auo v. Bathey, No. 96‑30020 (Feb. 10, 1997) 1997 W.L. 52200.  If the inmate fails to comply with this requirement, his suit will not be accepted for filing or will be dismissed.  If the inmate is not truly a pauper, the inmate is now required to file filing fees.

Absent in the definition of “physical injury” in the Prison Litigation Reform Act, which requires a prisoner to make a prior showing of physical injury before bringing any federal civil action, the Fifth Circuit will be guided by Eighth Amendment standards in determining whether a prisoner has sustained a necessary physical injury to support a claim for mental or emotional suffering.  Thus, an injury must be more than diminimous, but need not be significant.  Siglar v. Hightower, No. 96‑11096 (May 8, 1997), 1997 W.L. 197320.

[1]  The Supreme Court stated that: “We reject the State’s claim that inmates are “ill‑equipped to use” “the tools of the trade of the legal profession,” making libraries useless in assuring meaningful access.

[2]  Some Courts however, have held that the deprivation of a mattress is a constitutional violation.  “[T]he State owes the same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm, during their confinement.”  Hare, 74 F.3d at 650; Oladipupo, 104 F.Supp.2d 626.   A mattress is a basic human need, which must be provided to a detainee.  Id.  Several federal courts have found that forcing a pretrial detainee to sleep without a mattress, or on the floor on a mattress, for even a short period of time, constitutes a violation of the Fourteenth Amendment.   See, e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1449 (9th Cir.1989) (valid Fourteenth Amendment claim where pretrial detainee forced to sleep on the floor for two nights);  Lyons v. Powell, 838 F.2d 28 (1st Cir.1988) (pretrial detainee’s allegation that he was forced to sleep on floor mattress sufficient condition to show deprivation of due process);  Anela v. Wildwood, 790 F.2d 1063, 1067 (3d Cir.1986) (allegation that City failed to provide bed or mattress to pretrial detainees states actionable constitutional claim); Lareau v. Manson, 651 F.2d 96, 105 (2d Cir.1981) (prison’s use of floor mattresses for pretrial detainees unconstitutional “without regard to the number of days for which a prisoner is so confined”);  Martino v. Carey, 563 F.Supp. 984, 1002 (D.Or.1983) (fact that jail overcrowding forced some pretrial detainees to sleep directly on floor contributed to finding that overcrowded conditions violated detainees’ Fourteenth Amendment rights); Vazquez v. Gray, 523 F.Supp. 1359, 1365 (S.D.N.Y.1981) (use of floor mattresses for pretrial detainees unconstitutional).

[3]  Barnett v. Collins, 940 F.2d 1530 (5th Cir.1991) (table) (unpublished) (upholding use of female guards in guard towers giving full view of male inmates taking showers).

[4]  Johnson, 69 F.3d at 147 (Easterbrook, J.) (“If only men can monitor showers, then female guards are less useful to the prison;  if female guards can’t perform this task, the prison must have more guards on hand to cover for them.”);  Timm v. Gunter, 917 F.2d 1093, 1101‑02 (8th Cir.1990) (explaining that constant visual surveillance by guards of both sexes is a reasonable and necessary measure to promote inmate security); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir.1988) (stating that espisodic and casual observation of male prisoners by female guards is justified by security concerns);  Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir.1985) (stating that “[t]o restrict female guards from … occasional viewing of the inmates would necessitate a tremendous rearrangement of work schedules, and possibly produce a risk to both internal security needs and equal employment opportunities”). Many courts have identified protecting female prison guards’ constitutional and statutory rights to equal employment opportunities as a legitimate penological objective.   E.g., Johnson, 69 F.3d at 147‑48; Timm, 917 F.2d at 1102; Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980).   We do not need to reach the issue, because we conclude that the policy furthers the jail’s interest in promoting security.


[1]  The Supreme Court stated that: “We reject the State’s claim that inmates are “ill‑equipped to use” “the tools of the trade of the legal profession,” making libraries useless in assuring meaningful access.

[2]  Some Courts however, have held that the deprivation of a mattress is a constitutional violation.  “[T]he State owes the same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm, during their confinement.”  Hare, 74 F.3d at 650; Oladipupo, 104 F.Supp.2d 626.   A mattress is a basic human need, which must be provided to a detainee.  Id.  Several federal courts have found that forcing a pretrial detainee to sleep without a mattress, or on the floor on a mattress, for even a short period of time, constitutes a violation of the Fourteenth Amendment.   See, e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1449 (9th Cir.1989) (valid Fourteenth Amendment claim where pretrial detainee forced to sleep on the floor for two nights);  Lyons v. Powell, 838 F.2d 28 (1st Cir.1988) (pretrial detainee’s allegation that he was forced to sleep on floor mattress sufficient condition to show deprivation of due process);  Anela v. Wildwood, 790 F.2d 1063, 1067 (3d Cir.1986) (allegation that City failed to provide bed or mattress to pretrial detainees states actionable constitutional claim); Lareau v. Manson, 651 F.2d 96, 105 (2d Cir.1981) (prison’s use of floor mattresses for pretrial detainees unconstitutional “without regard to the number of days for which a prisoner is so confined”);  Martino v. Carey, 563 F.Supp. 984, 1002 (D.Or.1983) (fact that jail overcrowding forced some pretrial detainees to sleep directly on floor contributed to finding that overcrowded conditions violated detainees’ Fourteenth Amendment rights); Vazquez v. Gray, 523 F.Supp. 1359, 1365 (S.D.N.Y.1981) (use of floor mattresses for pretrial detainees unconstitutional).

[3]  Barnett v. Collins, 940 F.2d 1530 (5th Cir.1991) (table) (unpublished) (upholding use of female guards in guard towers giving full view of male inmates taking showers).

[4]  Johnson, 69 F.3d at 147 (Easterbrook, J.) (“If only men can monitor showers, then female guards are less useful to the prison;  if female guards can’t perform this task, the prison must have more guards on hand to cover for them.”);  Timm v. Gunter, 917 F.2d 1093, 1101‑02 (8th Cir.1990) (explaining that constant visual surveillance by guards of both sexes is a reasonable and necessary measure to promote inmate security); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir.1988) (stating that espisodic and casual observation of male prisoners by female guards is justified by security concerns);  Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir.1985) (stating that “[t]o restrict female guards from … occasional viewing of the inmates would necessitate a tremendous rearrangement of work schedules, and possibly produce a risk to both internal security needs and equal employment opportunities”). Many courts have identified protecting female prison guards’ constitutional and statutory rights to equal employment opportunities as a legitimate penological objective.   E.g., Johnson, 69 F.3d at 147‑48; Timm, 917 F.2d at 1102; Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980).   We do not need to reach the issue, because we conclude that the policy furthers the jail’s interest in promoting security.

Filed Under: Publication Tagged With: Robert Davis

Horizontal Wells Crossing Unit Lines – From Permitting To The Division of Royalties

November 21, 2017 by Will Mokry

Authors: Celia Flowers & Melanie Reyes

The proliferation in horizontal drilling over the last decade has given rise to new, complex legal issues.  One area where the law has increasingly lagged behind the technology is in the calculation of royalties for horizontal allocation wells – in particular, the question of the division of royalties from horizontal wells crossing adjacent units has dogged the petroleum industry in recent years.  While the issues of permitting and royalty apportionment have not been wholly resolved by Texas courts with regard to wells crossing adjacent unit lines, a review of existing Texas Railroad Commission orders and case law authority pertaining to wells crossing adjacent leases provides credible guidance.

  1. Permitting horizontal wells as allocation wells with the Texas Railroad Commission (“RRC”) 

When sixty-five percent of the royalty interest owners within a pooled unit or units have approved a drilling plan and execute Production Sharing Agreement (PSA), the Texas Railroad Commission (RRC) will issue a PSA well permit.  Production Sharing Agreements and PSA permitting has become an accepted means of conducting business around horizontal drilling.  A bigger issue arises, however, when less than sixty-five percent of royalty owners fail or refuse to enter such an agreement.

While little case authority exists, the precursor to this issue originally arose with the RRC in the framework of whether pooling authority was required before a lessee could drill a horizontal well that crossed lease lines, where that lessee held leases on all tracts crossed by the horizontal well. The issue was presented to the RRC by EOG Resources Inc. for its Klotzman Lease (Allocation) Well NO. 1H (Status NO. 744730), Eagleville (Eagle Ford-2) Field, Dewitt County, as an Allocation Well Drilled On Acreage Assigned from Two Leases, Docket No. 02-0278952 (Sept. 24, 2013) (final order).  EOG filed an application for a drilling permit for a horizontal well purporting to form an approximately eighty-acre drilling unit by utilizing 40 acres from two separate leases.  EOG held a working interest in both leases.  However, the lessors had not given EOG pooling authority under the leases, and the Klotzmans and Reillys (lessors) protested EOG’s application for a drilling permit.

The lessors alleged the act of drilling across lease lines and producing from multiple tracts and leases constituted unauthorized pooling, despite the label attached to the permit application, and therefore, EOG Resources, Inc. had no good-faith claim to the right to drill the well. The lessors further argued that such a well would necessarily require the removal of captured minerals from the lease prior to measurement. In their view, the inescapable prospect of downhole commingling breaks down an analogy between an allocation well and a collection of wells isolating each lease. In the latter, production could be measured at the surface of each well, and no disputes would arise over what production is attributable to a particular lease. Lessors argued that the plain language of Rule 26 required measurement prior to removal of production from a lease.[1]

In response, EOG insisted that no pooling resulted from the drilling of an allocation well. Additionally, it asserted that Rule 26 had no applicability or relevance to downhole commingling. On the narrow question of whether it held a good-faith claim to the right to drill, EOG pointed to the leases, which indisputably granted the right to drill on and through the lands described in the leases.  It argued that because the rights and duties under a lease are a matter of contract between a lessor and lessee, it maintained that interpretation of contractual rights is the province of courts rather than the Commission.[2]

The RRC ultimately determined that EOG was not required to demonstrate any pooling authority in order for the RRC to issue a permit to drill a horizontal well that crosses lease lines, where all the leases involved are held by the lessee. Id.  The lessors filed suit in district court in Travis County, but the case settled before trial.[3]  Moreover, in the wake of the “Klotzman” challenge, the RRC has continued to issue permits to drill horizontal allocation wells where the applicants show a good-faith claim of a right to drill, which is satisfied with a showing of leasehold or mineral rights. Texas case law has long held that the RRC has authority to determine whether an applicant has such a good-faith claim.[4]

A horizontal allocation well refers to: 1) a horizontal well that traverses more than one tract in which 2) less than sixty-five percent of the royalty interest owners have approved the drilling plan (thus failing the RRC’s guidelines for issuing a Production Sharing Agreement or PSA well permit).   Instead of conditioning the grant of a permit for a horizontal allocation well upon an affirmative representation by the applicant that it has pooling authority or has otherwise obtained the consent from its lessors to drill the multi-tract horizontal well, the RRC only requires the applicant to represent that it has the entire working interest for those traversed tracts without any further representation by the applicant that it has pooling authority or has obtained the consent of royalty owners for a multi-tract well.

It is important to note, however, that Texas courts have routinely held that the RRC’s authority does not extend beyond the permitting process.[5]  Once the permit has been issued, the parties continue to be bound by their existing contractual relationships and longstanding common law (i.e. tort law).[6] Moreover, Texas courts have yet to specifically address the applicability of the above analysis, the permitting of horizontal wells as allocation wells, to scenarios involving adjacent units.

Upon filing and paying the required fee, it has become the practice of the RRC to routinely allow a permit, originally issued as a horizontal allocation permit, to be amended to become a PSA permit should the required number of royalty owners execute PSAs.

  1. Payment of Royalties under an Allocation Well

The RRC refers to a “horizontal drainhole well” as any well that consists of one or more horizontal drainholes.[7] A horizontal drainhole is defined as that part of the wellbore that deviates at more or less of a right angle from the vertical wellbore; it begins at the penetration point, where it penetrates the field at an interval capable of production, and ends at the terminus point, the point farthest from the penetration point but within the producing interval. See id. § 3.86(a)(2), (5), (6) (2000). For purposes of designating a proration unit and allocating production allowables, units are determined by the length of the horizontal displacement between the penetration point and the terminus point, i.e., the horizontal displacement of the drainhole.[8]

The first case addressing the consequences of drilling horizontal wells across unpooled interests was Browning Oil Co. v. Luecke, 38 S.W.3d 625 (Tex.App.—Austin 2000, pet. denied). Humble Exploration Company, Inc. Oil Company obtained three leases from the Lueckes in 1979.[9]  Those leases were eventually assigned to Browning Oil Company, and in 1994, Marathon Oil Company and Browning Oil Company, Inc. entered into an operating agreement to develop the area which included the Lueckes’ acreage under the leases. Although those leases contained pooling provisions, they also contained anti-dilution provisions restricting the quantity of lease acreage that could be pooled with the lease.[10]

In late 1994, Marathon approached the Lueckes seeking to amend the leases to allow pooling for horizontal wells.  The effect of the proposed amendment would have nullified the anti-dilution provisions, and the Lueckes refused.[11] Nevertheless, in February 1995, Browning and Marathon drilled two successful horizontal wells across tracts, which included Luecke tracts. They filed a Certificate of Pooling Authority with the RRC, showing the location of the first well on a purported pooled unit consisting of 839.18 acres, 268.68 of which were owned by the Lueckes; and that the second well was located on a purported pooled unit consisting of 346.625 acres, 114.86 of which were owned by the Lueckes.

The Lueckes filed suit against Browning and Marathon, claiming that the purported “units” for the two horizontal wells violated the pooling provisions and the anti-dilution provisions in their leases. Following a jury verdict for the Lueckes, Lessees appealed.  The Court of Appeals determined with ease that the pooling and anti-dilution provisions of the leases applied to the horizontal wells.[12]

The appellate court concluded that Lessees were required to comply with the lease provisions and that they breached those provisions. However, with regard to the Lueckes’ claim that they were entitled to royalties for total production from the wells undiluted by distribution among other pooled landowners, the court disagreed. It concluded that because the breach rendered the pooled units invalid, the Lueckes were not entitled to receive royalties on oil and gas produced from tracts they did not own.[13]  As the court plainly stated, each tract traversed by the horizontal wellbore is a drillsite tract, and each production point on the wellbore is a drillsite.[14] However, “[a]lthough the Lueckes’ tracts are drillsite tracts, they cannot claim royalties for total production when they have no legal claim to oil and gas recovered from other lessors’ drillsite tracts.” [15]   The better remedy is to allow them to recover royalties as specified in the lease, compelling a determination of what production can be attributed to their tracts with reasonable probability.[16]

The appellate court, though not explicitly addressing commingling, applied a “reasonable probability” standard to the allocation of production from un-pooled tracts.  However, it expressly recognized the harm it could do to the burgeoning horizontal drilling industry and stated: “[d]raconian punitive damages for a lessee’s failure to comply with applicable pooling provisions could result in the curtailment of horizontal drilling. We decline to apply legal principles appropriate to vertical wells that are so blatantly inappropriate to horizontal wells and would discourage the use of this promising technology.” [17]  Thus, the court awarded the un-pooled owners “royalties for which they contracted, no more and no less.” [18]

More recently, the San Antonio Court of Appeals decided Springer Ranch Ltd. v. O.F. Jones III. et. al.[19]  Springer Ranch brought suit against Rosalie Matthews Sullivan (its neighbor) and other owners of adjoining mineral estates.  Springer Ranch sought a declaratory judgment with regard to a 1993 contractual agreement, originally executed to govern allocation of royalties with respect to vertical wells drilled on the parties’ properties.[20]  The lawsuit, however, arose years later following a dispute between the parties over allocation of royalties from a horizontal well.  The horizontal well bore was located on Spring Ranch’s land, crossed the boundary of Sullivan’s land, and ultimately, ended on Sullivan’s land.  The trial court held that the 1993 contract required that royalties from the horizontal well in dispute, and any future horizontal wells crossing the parties’ property lines, must be allocated based upon the productive portions of the well underlying the parties’ properties.[21]  An appeal followed.

On appeal, the appellate court acknowledged the distinction between the manner in which production is obtained from horizontal wells, as opposed to vertical wells, and explained that a horizontal well only produces hydrocarbons from the part of the well that lies within the hydrocarbon-bearing reservoir, or “correlative interval.”[22]  It further explained that “[a]long the horizontal displacement are take points through which hydrocarbons flow into the well.  A royalty, as a fraction of production, is only obtainable from the part of the SR2 well actually within the correlative interval. Despite Springer Ranch’s argument that the calculation should be based on the whole length of the well, it is not the whole length of the well from which the production is obtained…. the royalties must be allocated on the basis that the productive portions of the SR2 well are situated on both Springer Ranch’s and Sullivan’s properties.”[23]

These cases have generated a variety of methods employed by lessees/operators who must account to unpooled interest owners burdened by a portion of a horizontal well. Typically, these consist of calculating either: (1) the length of a horizontal drainhole within a tract relative to total length within the correlative interval; or (2) the number of take points within a tract relative to the total number along the entire horizontal drainhole.  It appears that absent unusual operational circumstances, production from a horizontal well should be allocated to each drill site tract proportionately based upon each tract’s share of the open wellbore in the pay zone.  Nevertheless, the Supreme Court of Texas has not addressed what standard governs damages for production from unpooled interests along a horizontal well.  Until it does, it appears that a lessee may allocate production on an unpooled basis, without liability under the commingling theory, provided it can establish with reasonable probability what production originates from the segment or segments of the drainhole within the unpooled lease.

  • Hypothetical

Gas Unit #1 and Gas Unit #2 are adjacent units in Reeves County, Texas.  Both units and the leases within the units are currently held by production.  Happy Oil Co. owns 100% of the leasehold interest in both units.  Happy Oil Co. is in the process of drilling Big Gas Well — a horizontal well with a lateral drainhole crossing both Gas Unit #1 and Gas Unit #2.

Ideally, Happy Oil Co. should obtain PSAs from the royalty owners in both of the existing units with attention paid to getting the PSAs from owners along the drill path on the horizontal well.  Obtaining PSAs from these royalty owners adds contractual protection for Happy Oil Co., giving it specific contractual approval from those royalty owners of the method of allocation of production between the two existing units and among the royalty owners within each unit.   Should Happy Oil Co. obtain the required 65% of royalty owners in both units, Happy Oil Co. could obtain a PSA permit from the RRC.

If it is unclear at the beginning of the process whether the requisite percentage of royalty owners in both units will execute Production Sharing Agreements (PSAs), approving the allocation of production between the royalty owners within each unit for Big Gas Well, Happy Oil Co. will then be faced with obtaining an allocation well permit. Given the facts surrounding the drilling of Big Gas Well, where the lessee, Happy Oil Co., owns 100% of the leasehold interest in both units crossed by the horizontal well, the RRC would allow permitting of the well as an “allocation” well since the good faith claim of right to drill is satisfied.  Therefore, it would be efficient and prudent for Happy Oil Co. to proceed with drilling this well under an allocation permit.  And, if 65% of the royalty owners eventually execute a PSA, Happy Oil Co. could always amend its RRC permit from an allocation permit to a PSA permit (although, such additional efforts are probably unnecessary).

As to royalty allocation, Happy Oil Co. should allocate royalties among the owners in each unit in the amount each owner proportionately owns in the existing unit multiplied by the percentage that such unit’s acreage occupies in the area covered by the measured horizontal wellbore.  This method incorporates the methods that meet the specifications set forth thus far in Browning and Springer Ranch:  (1) the length of a horizontal drainhole within a tract relative to total length within the correlative interval; or (2) the number of take points within a tract relative to the total number along the entire horizontal drainhole.  Said method could also be committed to writing in the form of a PSA, which, as noted would provide additional contractual protection.

  1. Conclusion

Technology moves at a rapid rate.  Unfortunately, cases move through the court system at a snail’s pace.  Thus, practitioners do not always have proper guidance when the case law lags behind.  Nevertheless, although the permitting processes and royalty calculations for horizontal wells is still developing, there is enough authority from both the RRC and Texas courts that practitioners can now proceed with reasonable assurance that acceptable methods used in lease line cases will eventually be adopted for unit purposes as well.


[1] Rules 26(a)(2) and 27(a) provide that oil and gas are generally to be measured before leaving the lease from which they are produced.  See 16 Tex. Admin. Code §§ 26(a)(2), 27(a) (2012); see also Clifton A. Squibb, “The Age of Allocation: The End of Pooling As We Know it?”, 45 Tex. Tech L. Rev. 929, Texas Tech Law Review, Summer, 2013, fn. 21, 81-89 (citing closing briefs made before RRC).

[1] Id.

[1] Reily. v. R.R. Comm’n of Texas, No. D-1-GN-13-004306(98th Dist. Ct., Travis Cty., Tex. Dec. 23, 2013).  EOG was also involved in another suit with similar issues. However, that suit has likewise been settled insofar the claims asserted against EOG’s relating to the above issues are concerned.  Spartan Texas Six Capital Partners, Ltd. v. Perryman, 494 S.W.3d 735 (Tex.App.—Houston [14th Dist.] 2016, aff’d as modified).

[1] See Magnolia Petroleum Co. v. R.R. Comm’n, 170 S.W.2d 189, 191 (Tex. 1943).

[1] See FPL Farming Ltd. v. Environmental Processing Systems L.C., 351 S.W.3d 206 (Tex. 2011).

[1] Id.

[1] See 16 Tex. Admin. Code §3.86(a)(4) (2000).

[1] Browning Oil Co. v. Luecke, 38 S.W.3d 625, 635 (Tex.App.—Austin 2000, pet. denied).

[1] Id. at 636.

[1] Id. at 637.

[1] Id. at 638.

[1] Id. at 640. 

[1] Id. at 645. 

[1] Id. at 635. 

[1] Id. at 646. 

[1] Id. at 647. 

[1] Id. 

[1] Id. 

[1] 421 S.W.3d 273 (Tex. App.—San Antonio 2013, no pet.).

[1] Id. at 277.

[1] Id. at 277-78.

[1] Id. at 285.

[1] Id. at 286.

Filed Under: Publication Tagged With: Celia Flowers, Melanie Reyes

Cost-Free Royalties – Where Valuation Begins and Post-Production Cost Deductions End

November 20, 2017 by Will Mokry

Authors: Celia Flowers & Melanie Reyes

Texas jurisprudence has long held that the royalty “stick” of the mineral estate is free of production costs. Although the royalty interest is not subject to production costs, royalty is usually subject to post-production costs. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 122 (Tex. 1996). Nevertheless, parties are free to contract around this general rule and may allocate post-production costs however they see fit. See id. The ability to contract around default laws seems relatively simple. Whatever the law holds, the parties simply sign a contract to achieve a different result. Unfortunately, the courts have made this process much more difficult in the context of drafting around the post-production cost deduction default rules. And, the problem primarily lies in the manner in which a particular royalty is valued and the time/place where the value determination is made. Without an in-depth understanding of royalty valuation methods, many drafters find themselves attempting to draft around default laws that simply cannot be altered. This is further complicated by the fact that there are numerous means of valuing a royalty.

I. Royalty Valuation Methods
The two primary methods of royalty valuation are “market value” and “proceeds value”. The two primary times/places royalties are valued are “at the well” and “down-stream sales” to third parties. Understanding how, when, and where the royalty valuation takes place is the key to understanding how to allocate post-production cost deductions between the parties and how to draft around the default rules.

“Market value” is what a willing buyer would pay a willing seller in an arms-length transaction, generally determined by comparable sales. If comparable sales are unavailable, understanding the time/place of royalty valuation becomes of paramount importance. “Market value at the well,” means value at the well, net of any value added to the product after it leaves the wellhead. Judice v. Mewbourne Oil Company, 939 S.W.2d 133, 135 (Tex. 1996). This method deducts postproduction costs. Thus, all increase in the ultimate royalty value attributable to the expenses incurred after production is built in to the market value at the well equation.

“Proceeds” or “amount realized” royalty valuation methods require measurement of the royalty based on the amount the lessee in fact receives under its sales contract for the product. The caveat here, however, much like with the “market value” method, is the time/place of the valuation. If the lease language itself indicates that the point of sale takes place “at the well,” then, the equation contemplates post-production deductions. Thus, the coupling of “proceeds” or “amount realized” with “at the mouth of the well,” results in the same valuation as “market value at the well.”

II. No Post Production Deduction Clauses
The Texas Supreme Court’s first major holding related to attempts to draft around post-production cost deductions came in the 1996 Heritage Resources, Inc. v. NationsBank case. 939 S.W.2d 118 (Tex. 1996). In Heritage Resources, the royalty valuation method was “market value at the well.” However, the leases also included the following prohibition: “provided, however, there shall be no deductions from the value of Lessor’s royalty by reason of any required . . . transportation, or other matter to market such gas.” Id. at 120-121. The court noted that the “no deductions” clause only prohibited deductions from the “value of the Lessor’s Royalty.” See id. (emphasis added). Accordingly, the court reviewed the “no deductions” clause in light of the “market value at the well” royalty valuation method, holding that because post-production cost deductions are inherent in this valuation method, the “no deductions” clause necessarily became “surplusage” and therefore had no effect. Id.

Since Heritage Resources, drafters have taken is two-fold approach. First, the drafter attempts to remove any language marrying the “no deductions” clause with the “royalty valuation” method. Second, drafters attempts to expressly disclaim the Heritage Resources holding in the lease addendum. The effectiveness of this solution, however, has been called into question due to a series of cases. See Warren v. Chesapeake Exploration, L.L.C., 759 F. 3d 413 (5th Cir. 2014)(“no deductions” clause in addendum ineffective where royalty valuation method “at the well”); Potts v. Chesapeake Exploration, L.L.C., 760 F.3d 470 (5th Cir. 2014) (“no deductions” clause ineffective where royalty valuation method is “market value at the point of sale” but “point of sale” is at the well.)

After nearly 20 years, the Texas Supreme Court finally revisited Heritage Resources in the 2015 Chesapeake Exploration, LLC v. Hyder case. Hyder involved multiple royalty clauses. One valued royalty as market value at the well, one valued royalty as price actually received, and one value royalty as “gross production obtained.” The first two clauses were limited by the following: “The royalty reserved herein by [lessors] shall be free and clear of all production and post-production costs . . .” Id. The third clause, although containing no express post-production deduction limitation, was expressly called a “cost-free” royalty. Id. at 478. Finally, the lease included an express disclaimer of the Heritage Resources holding. Id. at 477.

The only issue that was explicitly decided by the Texas Supreme Court was whether the third royalty valuation method allowed for post-production cost deductions. Hyder, 2016 WL 352231 at 1. The court held that the “cost-free” designation prohibited the lessee from deducting post production costs. See id. at 2. Nevertheless, while the lessors in Hyder may have won the day, the war still seems to favor the lessees due to the court’s analysis therein.

The first problem with Hyder is that it gives effect to the “cost free” language in the third royalty valuation method, but it ignores the “free and clear” language limitation on the other to two royalty clauses in the same lease. Is “cost free” now a defined term of art that, regardless of timing of royalty valuation, frees the royalty (any royalty) of bearing post-production costs? Had the Heritage Resources case included the “cost free” language, would that result have been different, irrespective of the implication of timing? And, why is the term “cost free” effective but the phrase “free and clear of all post-production costs” surplusage?

The second Hyder problem is that, in dicta, the court opines that by making a lease a “proceeds lease,” this, in and of itself, is sufficient to avoid post-production cost deductions from the lessor’s royalty. See id. at 2. But, this conclusion is inconsistent with prior law relating to “proceeds leases.” The high court has previously held that a “proceeds lease” that uses a “net proceeds” methodology, per se, contemplates post-production cost deductions. This is so because a “net proceeds” calculation is synonymous with the amount realized, calculated at the mouth of the well. Conversely, a “gross proceeds” lease would theoretically not allow such deductions. See Judice, 939 S.W.2d at 136.

It’s important to note that in the 5th Circuit Potts case, the lease at issue was a proceeds lease, but the court held that the lessor’s royalty still bore the cost of post-production activities. In that case, the author (who wrote the concurrent opinion in Heritage Resources) was very careful to stress that the underlying reasoning behind Heritage Resources was not a matter of “market value” versus “proceeds” methodologies. The Heritage Resources reasoning stems from the “when and where” valuation — specifically, at what point is the royalty valued: at the well or downstream after processing? In Potts, the point of sale was at the well; thus, the lessor’s royalty included post-production cost deductions. This “timing” analysis, although perhaps overly complicated, at least makes logical sense and provides a more solid understanding of the rule set out in Heritage Resources.

But, the Texas Supreme Court does not address Potts at all in Hyder. Unfortunately, in connection with the first two royalty clauses at issue in Hyder, the court does not address the “timing” analysis, either. In failing to do so, the question of whether a “no deductions” clause will have any effect on a “proceeds” lease that calculates royalty at the mouth of the well is left unclear. The Hyder case expressly states: “the price-received basis for payment in the lease is sufficient in itself to excuse the lessors from bearing postproduction costs.” Hyder, 2016 WL 352231 at 2. Standing alone, that statement seems to imply that timing does not matter – call it a proceeds lease and no deductions. But, as noted, such an implication flies in the face of long-standing Texas law with respect to how a price paid at the well calculation is derived, and it undermines the only logical reasoning behind the Heritage Resources holding – that timing is the key. If this Hyder statement relates solely to “gross proceeds” leases, it could be harmonized with existing law. But, a “net proceeds” lease, as examined in both Judice and Potts, is a different animal altogether.

Another aspect of the Hyder case that is interesting is the court’s rejection of the Heritage Resources disclaimer. In the context of “timing,” again, this holding makes sense. If a royalty is valued at the well – be it market value or actual price received – those calculations include post-production cost deductions, and thus, a disclaimer of the Heritage Resources holding is as ineffective as a “no deductions” clause. But, again, the court veers away from the timing analysis in its analysis of the royalty clauses. Still, the bottom line seems to be that a disclaimer of Heritage Resources is of no effect under any circumstances.

As to the specific holding in the case as it relates to the royalty clause, the court states:

Heritage Resources does not suggest, much less hold, that a royalty cannot be made free of postproduction costs. Heritage Resources holds only that the effect of a lease is governed by a fair reading of its text. A disclaimer of that holding, like the one in this case, cannot free a royalty of postproduction costs when the text of the lease itself does not do so. Here, the lease text clearly frees the gas royalty of postproduction costs, and reasonably interpreted, we conclude, does the same for the overriding royalty. The disclaimer of Heritage Resources’ holding does not influence our conclusion. Id. at 5.

Finally, the Hyder dissent is worth note. The majority held that the “cost-free” language of the overriding royalty clause controlled, but the dissent focused on the “gross production” language. Hyder, dissent, 2016 WL 352231. The dissent notes that “gross production” is not as familiar a term as “market value at the well” or “amount realized, calculated at the mouth of the well.” Id. But, based on the standard definition of “gross” and “production,” the dissent concludes this phrase is synonymous with an “at the well” calculation. See id.

Under such a reading, the dissent would have held that the “cost free” language was surplusage because, as Heritage Resources holds, a “no deductions” prohibition clause cannot free a royalty from a valuation method that is inherently based on a post-production cost deduction calculation. In other words, gross production is what is obtained at the well, and thus, no post-production costs have been incurred at the time of production. The dissent would have resolved this tension “to give full meaning to ‘gross production,’ which defines the interest where “cost-free” is only an adjective describing it.” Id.

Despite the inherent problems with the new Hyder decision, the Texas Supreme Court now has the opportunity to clarify the opinion in light of the problems raised by the dissent as the case of Commissioner of General Land Office of State of Texas v. Sandridge Energy, Inc. is now at the high court and briefs on the merits have been submitted. 454 S.W.3d 603 (Tex. App.—El Paso 2014, pet filed). Sandridge Energy involves the interpretation of the following clause: “gross production or the market value thereof such value to be based on the highest market price paid or offered for gas of comparable quality in the general area where produced and when run, or the gross price paid or offered to the producer whichever is greater.” Id. at 608. The El Paso court of appeals determined this clause equivalent to be a market-value at the well valuation. See id. at 616. It will be interesting to see if the high court grants petition for review, and if so, how the opinion attempts to harmonize the case with Hyder.

II. WHERE DO WE GO FROM HERE?
After 20 years of drafting around Heritage Resources, the majority of practitioners are looking back and realizing that their efforts to work around the holding were most likely in vain. Due to the Hyder opinion, Lessors who may have seen their royalty free of post-production costs could now be receiving royalty checks for lower amounts. The question now is: How do we draft a royalty valuation clause and/or no-deductions clause to meet the understanding of the parties?

At first glance, for lessees, the answer seems relatively clear. If the royalty is calculated as the market value “at the mouth of the well,” the royalty is subject to post-production costs irrespective of the addition of a no-deductions clause or a Heritage Resources disclaimer. But, due to the Hyder language that the price-received basis for payment is “sufficient in itself to excuse the lessors from bearing postproduction costs,” the implication is that any “proceeds” could free the lessor’s royalty from postproduction costs whether it is a gross proceeds or a net proceeds lease. This may be an unintended consequence of the Hyder language, but the argument is not ripe for adjudication, and drafters will have to hope the high court eventually clarifies this language. In the meantime, if the lessee wants the lessor to bear post-production costs, the safest bet is to calculate the lessor’s royalty as market value at the well.

For lessors, the picture is even less clear. Drafters now know that a market value at the well royalty valuation will render a no deductions clause surplusage no matter what language they use in the no deductions clause. But, what about “market value at the point of sale”?

This will depend on “where” the actual point of sale occurs. If evidence demonstrates the point of sale is “at the well,” the lessor is back to square one and a no deductions clause will be ineffective. Thus, it becomes imperative that the lessor determine “where” the actual point of sale will occur before relying on this language. Moreover, a lessee may change its point of sale over the course of a lease. Accordingly, lessors may need to firm up the point of sale language to something more specific such as: “cost free royalty, calculated by the market value at the final point of sale, downstream, after all processing, transporting, gathering, marketing, and other post production operations have occurred.

As to a proceeds lease, lessors, like the lessees, would be at risk relying on the Hyder language. To be fool-proof, a proceeds lease should be just as specific as a market value lease. Therefore, the royalty valuation clause should specifically state that the royalty is “cost free, calculated by the gross proceeds or total amount realized at the final, downstream point of sale, after all processing, transporting, gathering, marketing, and other post production operations have occurred.

CONCLUSION
Whether the drafter is preparing a lease favorable to a lessor or lessee, the traps inherent in formulating a cost-free or burdened royalty are now abundant due to the confusing nature of the case law. As noted, the courts’ analyses logically turn on timing. However, because Hyder arguably steers away from this logic, the effects of proceeds leases are now unclear. Thus, drafters, in order to be safe, should use succinct, specific language in the royalty valuation clause and stop relying on no-deduction addendums until Texas courts hopefully, one day, shore up this issue with a clear, bright-line edict.


[1]           Chesapeake Exploration, L. L. C. v. Hyder, 2016 WL 352231 1. ; 59 Tex. Sup. Ct. J. 290 (Tex. Jan. 29, 2016) opinion substituted for Chesapeake Exploration, L. L. C. v. Hyder, 58 Tex. Sup. Ct. J. 1182 (Tex. 2015).  *Please note, the original opinion was withdrawn and a new opinion substituted in its place on January 29, 2016.  A detailed review of the substituted opinion, however, demonstrates no significant, substantive changes between the original and the new opinion.  Citations in this paper will be made to the Texas Supreme Court’s most recent Hyder opinion.

Filed Under: Publication Tagged With: Celia Flowers, Melanie Reyes

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