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Volume 1, Number 1, Fall 1993




Judicial Enforcement of Charitable Care Requirements for Nonprofit Hospitals' Tax-Exempt Status, 1
Daniel Rey-Bear


Tax Exemption and Public Accountability, 8
Ann Kitchen and Catherine Fant

Anne Kitchen's article “Tax Exemption and Public Accountability” discusses Texas Senate Bill 427 passed by the Senate and House in April and May 1990, respectively, and signed by the Governor in June. The bill went into effect in September of 1990.

Senate Bill 427 tightens standards for hospitals claiming tax-exempt status. The premise of the bill is that all non-profit hospitals are charities by definition, and consequently, their directors have a fiduciary duty to use the hospital's resources charitable purposes.

Four specific topics are addressed by the bill: charity care, community benefits planning, uniform reporting procedures, and requirements for tax exemption. Moreover, the Attorney General's office, upon failure to comply, could file suit for breach of the hospital's fiduciary duty to the public.


Heightened Pleading Standards in Civil Rights Cases Against Municipalities, 13
Michele L. Hammers

In “Heightened Pleading Standards in Civil Rights Cases Against Municipalities”, Michele L. Hammers examines the Supreme Court's entrance into the debate over the particularities of pleadings required in Civil Rights cases against municipal defendants.

With the 1993 decision Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, the Supreme Court struck down the Fifth Circuit's heightened pleading requirements for not following the standard set by Federal Rule of Civil Procedure 8. The Court noted that as Section 1983 claims are not covered in Federal Rule 9b), which deals with particularity in the pleadings, there cannot be a heightened standard.

The author summarizes the genesis and further development of the heightened pleading requirement in the Fifth circuit, describing the need for an extra safeguard against insubstantial claims against government officials. She points to the substantial costs of litigation of the subjective good faith of officials, and the extension to municipalities in Palmer v. San Antonio. The Supreme Court in Leatherman wrote that municipalities do not merit the kind of qualified immunity that individuals possess, which led to the Fifth Circuit's adoption of the heightened pleading requirement. The effect of the Leatherman decision is that while plaintiffs still may be subject to a good faith defense in order to survive a summary judgment motion, they do not have to plead with particularity, pursuant to Federal Rule of Civil Procedure 8.

The author points out that the Supreme Court struck down only the Fifth Circuit's heightened pleading requirements with respect to municipal defendants, leaving open the issue of cases involving individual defendants, which continue to fall under a heightened pleading standard in the Fifth Circuit.


Mixed Motive Discharge in Employment Discrimination: Analysis of a Jury Charge, 17
John DeGeeter

In “Mixed Motive Discharge in Employment Discrimination: Analysis of a Jury Charge”, John DeGeeter addresses what the proper jury charge should be in an employment discrimination case when the termination of an employee was motivated by discriminatory and non-discriminatory reasons.

The Fifth Circuit's requirements for a prima facie employment discrimation case allow the plaintiff to rebut the defendant's assertion of a legitimate reason for the termination of employment with evidence that the employer generated the legitimate reason after the fact to cover up a termination motivated solely by discrimination. The requirements give no guidance, however, on how to treat an employer who, at the time of termination, had both a legitimate reason for termination and a discriminatory one.

In the instructions for Aaron v. Centre First Management Corp., the court addresses this situation by directing the jury to decide whether the illegitimate factor was a motivating one in the termination of the employee. If the jury believes illegitimate considerations motivated the termination, they then must decide whether the employer was motivated by a legitimate reason. If so, the employer would escape liability.

DeGeeter applauds this solution because it at once condemns employment decisions based on an illegitimate reason while protecting the employer's freedom of choice.


Legal Approaches to Protecting the Rights of Cohabiting Couples, 19
Stacy Emerson

In her note, Stacy Emerson discusses the growing need for some type of legally enforceable relationship for unmarried couples and various ways to fulfil this need. Her approach includes both couples who have decided to not get married for various reasons and couples for whom marriage is not a legal option (same-sex couples).

Discussed methods for dealing with this deficiency include (1) domestic partnership city ordinances in Austin, Seattle and Berkeley, (2) recognizing a contract basis for enforcing reasonable expectations of the relationship including implied contracts, and (3) using equitable doctrines such as unjust enrichment, constructive trust, and joint partnership theories to define the rights and responsibilities of people in committed, non-marital partnerships.


Court Involvement in Administering Public Assistance Benefits, 23
M. Raphael Levy

M. Raphael Levy, illustrates how Texas practice does not follow Supreme Court directives for how a state should interpret federal constitutional rights. Texas law currently provides no right of judicial review to individuals denied public assistance benefits by the Department of Human Services. The author illustrates how federal rules require that due process must be given to individuals attempting to prove their eligibility. In order to assess what procedural requirements are required to give an individual due process, Mr. Levy applies the balancing test laid out by the Supreme Court in Matthews v. Eldridge. 424 U.S. 319 (1976).

The author's discussion of federal rules, application of the Matthews balancing test and recent Texas decisions which contradict Texas precedent lead him to conclude that the denial of public assistance benefits requires a right to judicial review; otherwise, it is a violation of the United States Constitution.


Ex parte Tucci: Free Speech Requires Least Restrictive Means, 28
Nathaniel P. Holzer

Nathaniel P. Holzer discusses a Texas Supreme Court ruling on free speech. The case involves a violation of a court order which limited right to life demonstrating to one hundred feet of an abortion clinic.

The Court relies on its decision in Davenport v. Garcia which stated that “judicial orders can only be aimed at the effect of expression and not at the expression itself and that restraints must represent the least restrictive means”. The Supreme Court holds the order to be unconstitutional because the Trial Court did not inquire as to whether or not a less restrictive ban would have accomplished the same purpose.

Holzer argues that because of the new “least restrictive means” standard, free speech has greater protection under the Texas Constitution than under the United States Constitution.