Are you breaking the Texas “open containers” law?

Are you breaking the Texas “open containers” law?

We all know it is illegal to drive while intoxicated. But what about driving with open containers?

Are you allowed to drink at a drive-in movie theater? What if you’re camping? Or if you’re just carrying an opened bottle from one place to another?

Texas law says:

“A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked.”
A violation is a Class C misdemeanor.
  • An “open container” means any container for an alcoholic beverage that is open, has a broken seal, or the contents are partially removed.
  • A “public highway” includes any roads or other publicly available passage for motor vehicle travel.
The “passenger area” of the vehicle does not include:
  • the trunk of your car;
  • “the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk”; or
  • locking glove compartments.

Your take-away:

Don’t hit the road with an open can or bottle in the car (not even if you put the lid or cork back on) unless you can stow it in the trunk.

And there is one more exception: You won’t break the open container law if you are a passenger in a “bus, taxicab, or limousine” or another vehicle “used primarily for the transportation of persons for compensation.”

Drive safe, Austin!

Wrapping up an oral argument in a federal appeal.

Brian McGiverin, Attorney at Law

Brian McGiverin, wrapping up an oral argument in a federal appeal.

What is a “No Refusal Weekend”?

In Austin, every weekend from now through September will be a “no refusal weekend.”

You may be wondering, what does that mean? This video we created will explain it all.

Top 3 reasons everyone should have a Will.

Getting a Will might be on your to-do list, but do you know why it’s important?

Here are the top three reasons.

Reason 1: A Will protects your family

If you have kids younger than 18 years old, a Will lets you designate a guardian to care for them if you pass away, like a close family member. It’s like owning a fire extinguisher: almost no one will ever use it, but everyone with kids should have one.

A Will also lets you pick your heirs. Without a Will, state law will control how your property is distributed, which may not be the best result for your family. But if you have a Will, you can make a plan that fits your family best. Maybe you would like your grandchildren to spend their inheritance on college. Maybe you would like family heirlooms to go to the right place. Having a Will lets you make those decisions.

A Will protects your family

Reason 2: A Will gives you peace of mind

Once you have a Will, it will be there unless you change it. Once you write a Will, you will have the comfort of knowing it is there to protect your family.

If you have children or grandchildren, then the time for a Will is now. Give yourself the peace of mind of knowing the matter is handled.

A Will gives you peace of mind.

Reason 3: Wills save families’ money

When a person passes without a Will, the legal process for settling an estate becomes longer and more complication. Therefore, it costs more money to settle an estate where there is no Will.

In contrast, having a Will makes the probate process much less expensive, and makes it faster, which eases a family’s burden. An ounce of planning on the front end saves a lot of trouble on the back end.

Prison Justice League appeal scheduled for oral argument

An appeal filed by DLM attorney Brian McGiverin on behalf of the Prison Justice League (a membership-based  organization of people incarcerated in Texas prisons) has been set for oral argument before the Federal Court of Appeals for the Fifth Circuit in New Orleans, LA during the week of June 5, 2017. That is good news for PJL.

The underlying lawsuit alleged the officers of Texas’s Estelle Unit have a widespread practice of using excessive force on inmates:

PJL is a membership-based non-profit organization. Its members include over 700 TDCJ inmates, over 100 of whom are located in Estelle Unit, which has a capacity to hold 3,148 inmate overall. In the Texas prison system, inmate demographics sometimes vary from unit to unit. The Estelle Unit’s population is older and sicker than at most units – it is colloquially known as a “medical unit.” About a third of Estelle Unit inmates are over age 50. It is one of TDCJ’s main facilities for blind and deaf inmates and is classified as a Type II geriatric facility. It also temporarily houses inmates from other prisons who need physical therapy, respiratory therapy, or dialysis.

The prison is not run the way it should be. Officers walking the halls of the Estelle Unit routinely exercise unbridled discretion to use physical force on inmates that is unnecessary to maintain discipline on the unit – striking them, twisting arms, slamming them into walls, or throwing them to the ground. Officers at the Estelle Unit use force as punishment and display open contempt for policies telling them to do otherwise. The complaint included specific examples.

The majority of PJL members at the Estelle Unit have been assaulted by officers. Many have also witnessed officers assault other inmates. Many of these men use walkers for mobility purposes, report to dialysis multiple times a week, suffer from diabetes, or have visual or hearing impairments. The complaint included specific examples. Virtually all PJL members at the Estelle Unit very credibly fear being assaulted by an officer in the future. They report feeling unsafe in areas they cannot avoid, such as the central hallway connecting the wings of the prison, and in the chow hall where they are served meals. Many report they routinely skip one or more meals a day to minimize their contact with officers and thus the likelihood of being assaulted.

The warden is aware her staff routinely uses excessive force. Inmates in the Estelle Unit file hundreds of grievances every month, which are reviewed and signed by the warden. Inmates complaining of excessive force use grievances to describe attacks by officers and the identity the officers who attacked them. The warden, however, has not endeavored to stop the identified officers from using excessive force. With very few exceptions, grievances are returned with boilerplate rejection messages, such as: “Accused officer denies claim. No further action warranted.”

The warden was also alerted to officers’ pervasive excessive force by their written “use of force reports.” The warden has read reports documenting uses of force that a reader would understand were clearly excessive. Finally, the warden was also put on notice by her personal observations. The warden is known for walking the halls of the unit, and witnessed excessive force in full view of the hallways.

But the warden has not taken reasonable steps to stamp out the culture of violence among her staff. The warden has the ability to discourage wrongdoing by simply punishing officers who deserve to be punished. She can suspend them, demote them, or fire them. Those are the tools a warden uses to punish and deter staff from all sorts of rule breaking, from the mundane to the critical. And yet, although she is aware of the need to punish officers for excessive force, she prefers not to. As a result, an atmosphere of fear hangs over inmates, especially the elderly and disabled, in a prison where the people meant to protect them have become their main predators.

Racist store owner lawsuit will proceed to trial

Almost one year ago, on November 23, 2015, we posted “Man files racial discrimination suit against diamond store,” regarding a lawsuit against the owner of Bjorkheim’s Diamonds filed by DLM’s Brian McGiverin with co-counsel Judith Bohr, which alleges:

Joseph Carroll is suing Leif Bjorkheim because when Mr. Carroll and a companion entered Bjorkheim’s store to buy jewelry, Bjorkheim brandished shotgun and ordered them to leave, saying “I don’t feel comfortable with you niggers in my store.”

Leif Bjorkheim's shotgun

Leif Bjorkheim’s shotgun


We are pleased to announce today (November 17, 2016) the judge has denied the defendant’s motion for summary judgment, which sought to have the lawsuit dismissed. Instead, we will proceed to trial in the summer of 2017.


See the order hereOrder denying summary judgment (Nov. 17, 2016)



Moore’s transparency a benefit for voters

Letters to the Editor: Aug. 31, 2016

Re: Aug. 25 commentary, “Despite advantage for Dem, race for Travis County DA not a coronation.”

In politics, transparency is a virtue. I am pleased Margaret Moore has been transparent with the public about who she will include in her administration if she is elected.

All too often, a politician can rest on their laurels without discussing policy. Moore could have ridden to a comfortable victory in November without revealing how she would run the DA’s office. Instead, she gave us a window into her plans.

The article chastises Moore for being transparent, saying the election is not a “coronation.” It then questions the diversity in her hiring choices. The latter concern is legitimate — but ironically, if Moore had not been transparent, this newspaper could not have raised that concern until after the election.

Moore’s candor can only benefit the voters of Travis County by better informing them. I would encourage all the local candidates to follow her lead.


Commentary: Against “Fair-chance hiring?” Don’t be fooled

By Jacqueline Conn and Brian McGiverin – Special to the American-Statesman

Imagine a place where crime control policies make neighborhoods safer and allow communities to heal instead of exacerbating the very conditions that lead to crime in the first place. Texas’ carceral state makes us less safe because it has burdened 1 out of 3 Texas residents with a criminal history, creating and maintaining an underclass. This is part of the “New Jim Crow.” But on April 3, Austin became the first city in the South to bring the dream of a better future closer to reality by adopting a reform known as Fair Chance Hiring.

Austin’s Fair Chance is similar to policies adopted in over 100 cities and counties and 21 states. Fair Chance helps restore civil rights to the astoundingly large number of women and men affected by our country’s love affair with mass incarceration. It acknowledges their families and loved ones who depend on them for economic security and gives them the opportunity to provide that security.

We love the idea of Fair Chance because it works. Employment is one of the strongest predictors of desistance from crime. But finding a job is difficult for anyone with an arrest or conviction record and exacerbates the challenges for people who already face discrimination. Fair Chance is linked to improved public safety by reducing crime as much as 57 percent for people with a record.

Fair Chance isn’t just morally right; it is also good for business. Fair Chance promotes increased tax contributions, while reducing the number of people who rely on public assistance due to unemployment. Fair Chance policies increase applicant pools, connect employers with valuable workers and raise the output of goods and services by people with criminal records by as much as $65 billion each year nationally.

We live in the most economically segregated city in the country, with few options for people of color to leave poverty and spikes in homelessness due partly to the collateral consequences of Texas’ crime control policies. Imagine what the future will hold, and how communities and the people within may heal now that there is a path for people to leave second-class status.

The vision for our future is threatened by some who dislike the reality of antidiscrimination. The loudest dissent comes from Texas Public Policy Foundation, a right-wing group funded by conservative interest groups seeking to extinguish progress before it ignites hope.

Their criticism that Fair Chance will “exchange the New Jim Crow for the Old Jim Crow” is illogical and fails to tackle the problem. Racial discrimination will not disappear by ignoring it. Based on current trends, 1 in 3 black men will serve time in their lifetimes — and even more will have a record. Rather than fearing that employers may respond to reduced access to conviction records with racial discrimination, we must educate employers of the law as well as existing antidiscrimination laws. This is an opportunity for business and government to work together for the good of the community.

As is typical of moments in history, meaningful change is being told its intent is noble but its goals are off. This is the argument used throughout history against civil rights. In spite of our tremendous victory, conservative groups will likely take this fight to the state, as has been the case throughout history. Yet, in a state that has oppressed people of color for centuries, we must ask ourselves: How much space in this conversation do we allow the privileged few — the few who argue against working to end a racial caste system — in our own communities?

La lucha sigue. The struggle continues.

Conn is chairwomen for Second Chance Democrats. Brian McGiverin is an attorney with Dietz, Lawrence & McGiverin Law Center.

Austin passes Fair Chance Hiring ordinance

DLM’s Brian McGiverin joined with members of the Second Chance Democrats of Austin and other advocates at the Austin City Council on March 24, and they succeeded in encouraging the Council to pass the “Fair Chance Hiring” ordinance described in previous coverage linked from this blog.

The events from that evening were described in on the well known “Grits for Breakfast” blog, which are copied below.

Austin passes Fair Chance Hiring ordinance

FRIDAY, MARCH 25, 2016  Grits for Breakfast

 Last night, the Austin City Council passed a Fair Chance Hiring ordinance, becoming the first city in the South to require employers to wait until a conditional offer of employment has been made to inquire about an applicant’s criminal history. While similar “Ban the Box” initiatives have gained traction across the country, the Austin ordinance goes further than most fair chance laws in that it applies to private employers, delays the criminal history question until the point of conditional offer, and includes a civil penalty of up to $500.

According to Grassroots Leadership, which helped lead efforts to pass the ordinance, more than one in three Texans has a criminal record, and 2200 people return to the Austin area each year from prison. Even though employment stability is one of the top factors in preventing recidivism, 60-75% of people released from prison cannot find work within a year of their release. And the effects of incarceration disproportionately impact people of color: African Americans make up nearly 35% of people incarcerated in Texas prisons, while they represent only 12.5% of Texas’ overall population. With Austin’s unemployment rate exceptionally low and employers in need of applicants, it also makes sense for Austin to pass measures that would help increase the labor pool.

At last night’s hearing, the City Council heard public testimony from many formerly incarcerated individuals who spoke about the difficulty of obtaining gainful employment, the shame and stigma that comes with having a criminal record, and how their families have been impacted by their incarceration. Susannah Bannon, a Ph.D. student at the University of Texas at Austin, stated that her retired parents should not have to “worry about whether or not their 35-year old daughter who is halfway through her doctoral degree can pay her rent,” and asked if “someone who comes from this much privilege and has this much support … cannot make it in Austin, how can someone who is less fortunate do it?” Jorge Renaud, an organizer with Texas Advocates for Justice, slammed the “privileged few” opposing the ordinance, who he said were trying to persuade the Council “to continue a policy that has resulted in families, communities and entire neighborhoods on the east side and south side of Austin, impoverished and destitute and unable to climb out of poverty.”

Attorney Brian McGiverin, who also testified in support of the ordinance, placed the measure in the context of the Civil Rights Movement. He began his testimony with a quotation from a letter written on behalf of the U.S. Chamber of Commerce in 1963 regarding legislation that would become a piece of the 1964 Civil Rights Act. The excerpt resembled statements that have been made in opposition to the Austin ordinance: “The problem involves so many considerations that any bill comprehensive enough to cover them all would in all probability do more harm than good. The better approach to the problem is a combination of voluntary efforts and increased education to ensure better understanding of the need.” McGiverin argued that the “gameplan for gutting civil rights legislation really hasn’t changed that much in the past 50 years” and urged the Council not to be persuaded by the same “tired” arguments that have been used in the past to try to defeat antidiscrimination laws.

Opponents to the ordinance were mostly from the business community and included the Austin Chamber of Commerce, the Texas Credit Union Association, and the Texas Public Policy Foundation. A representative with the Texas Credit Union Association stated that the ordinance “imposes unnecessary costs and burdens on business and imposes particular risks on financial institutions,” referring to potential conflict with federal laws that prohibit financial institutions from employing people with certain criminal histories. However, Council Member Kitchen pointed out that the ordinance expressly did not apply where state or federal law disqualifies a person with a criminal history from holding certain jobs. Temporary staffing firms also voiced concerns that the ordinance would interfere with their particular business model, where applicants apply to the staffing firm for employment but are ultimately sent to outside employers which have their own hiring requirements. In response to those concerns an amendment was adopted that would allow the firms to conduct background checks either upon conditional offer of outside employment, or upon an applicant’s entry into a hiring pool.

Prior to the vote, Council Member Renteria spoke in support of the measure, and – like many of the advocates who testified in support – invoked his personal experience.  He described his brother’s involvement in the criminal justice system and the effects of his brother’s criminal record on work opportunities. His brother, who spent most of his childhood and young adult life incarcerated – first in the Waco State School from age 8 and later in TDCJ until age 32 – is now 68 years old, has never earned more than $10 an hour and has never had health benefits. Council Member Renteria stated that, when his brother was incarcerated, “society at that time really didn’t care about low-income minorities,” and implored his fellow council members to “show our compassion.”

The ordinance was sponsored by Council Member Greg Casar and in the end was opposed by only two Council members. In a moment when communities across the country are looking for ways to improve outcomes for formerly incarcerated people, the ordinance is one of the more progressive efforts we’ve seen and sets an important precedent.

For my part, it was fascinating and inspiring to see a grassroots effort, led by people directly affected by the policy, defeat entrenched and well-funded interests to effect immediate and impactful change. Congratulations to Council Member Greg Casar and the organizers and advocates who have spent the better part of the past year working to get the ordinance passed.

Video from last night’s hearing can be found here.

State ramps up inquiry into Dove Springs mortgage complaints

DLM Attorney Brian McGiverin comments in this article on the ongoing investigation into ongoing Dove Springs mortgage complaints.

State ramps up inquiry into Dove Springs mortgage complaints