Christmas: Past, Present & Future

I suppose it is natural for someone of my generation (read "almost senior citizen") to reflect upon Christmas as experienced in my past as a child, in present day as an adult, and to imagine future Christmases for my children.

Christmas for me growing up as a typical Baby Boomer was a magical time, filled with the sights, sounds, and tastes of the season.  My parents were careful to mix in a healthy dose of the religious reason for the holiday along with the traditional build-up to Santa's arrival complete with strings of popcorn and aluminum icicles on the Christmas tree and multi-colored C-9 lights stapled to the eaves of our house.  If it snowed in West Texas during this time of year, it made it even more special, since it would, for a short time anyway, make our world look something like Christmas looked like on It's a Wonderful Life and A Charlie Brown Christmas.  We would have a Christmas party and a Christmas program at school, and all the moms (since they normally didn't work outside the home) would come help serve cookies and hot chocolate and listen to our choir sing The Little Drummer Boy and Rudolph the Red-Nosed Reindeer.  My letters to Santa included wishes for G.I. Joes, electric trains and slot-car racers, and my stocking usually included some fruit and candy - things my parents were lucky to get for Christmas growing up during the Dust Bowl and Great Depression years.

Christmas today is a time for short visits to distant, aging parents to let them know we appreciate the memories they created for us and to try to make a few memories for our children as well.  With boys ranging in age from 22 to 5, their wish lists emailed to Santa include video games like Call of Duty: Black Ops, Fatheads, movie DVDs like Toy Story 3 and Lego Star Wars kits.  Schools still throw parties, but the programs and assemblies seem to have disappeared, along with any acknowledgement of the religious beliefs surrounding the holiday, no doubt a result of misguided enforcement of the constitutional amendment requiring separation of church and state.

I hope future Christmases for my children and (hopefully, someday) grandchildren will still be a time for giving and thankfulness, for peace on earth, for expressing love to each other and for fond memories of Christmases past.  Maybe they will call me on their 3-D video phones from their solar-powered cars to wish me a merry Christmas and send a gift certificate good for a grande fruitcake latte from InterStellarBucks.

It's Time for the Texas Rangers

Until last night, the Texas Rangers (fka the Washington Senators) had never won a playoff series - not even close.  In their three previous post-season appearances, they had compiled an anemic 1-9 record, playing all ten games against the New York Yankees, undoubtedly the most revered/hated team in all of baseball.  But last night in St. Petersburg, as Tampa Bay Rays centerfielder B.J. Upton's pop-fly final out hung in the air above the eagerly awaiting (grinning?) Texas Ranger shortstop Elvis Andrus, the Rangers Nation (i.e. the players, manager, coaches, new owners, and long-suffering fans) felt a huge weight being lifted from their shoulders.  And in that same moment, at least for this fan, came the realization that the Rangers have the chance to get some sweet revenge against the Yankees, and even more importantly - earn the respect of Baseballdom by representing the American League in the World Series.  If that happens, it will not only allow me to cross off one of my Bucket List items, but also give hope to all the underdogs who work long and hard to achieve lofty goals, just to see their efforts always fall short of the perennial champions.

LET'S GO RANGERS!

UPDATE (10/25/10):  The Rangers got their revenge in convincing style, out-hitting, out-pitching and out-running the Yankees, winning the ALCS in 6 games.  I now own 4 tickets to Game 3 of the World Series in Arlington - Section 215, Row 8, Seats 5-8.  Look for me and 3 boys on TV holding a sign that reads "ALDS Tickets....$100, ALCS Tickets....$150, World Series Tickets....$200, Re-signing Cliff Lee....PRICELESS" -rdj

UPDATE (10/31/10):  We were witnesses to the first ever Texas Rangers World Series victory in the Rangers Ballpark in Arlington.  Tom, John and Taylor were all smiles (see picture above right) after the Rangers took a 4-0 lead in the 5th inning via home runs by Moreland and Hamilton.  Final score - Rangers 4, Giants 2, Bucket List -1. -rdj

UPDATE (11/1/10):  Good thing we had tickets to Game 3.  The Giants pitching staff dominated the Rangers, limiting them to a dismal .190 batting average for the 5-game series.  At least now the Rangers are in the World Series Club, and there's only 150 days until Opening Day when they host the Boston Red Sox April 1, 2011.  Hopefully the majority of their current roster will be on hand, including ace pitcher Cliff Lee who is now a free agent and a hot commodity, especially for the %$@! Yankees. -rdj

Remember The Alamo, Pearl Harbor and 9/11

As a Texan and an American, I cannot help but feel anger, sorrow, pride and resolve when I consider these three moments in history.  The attackers - dictators, empire-builders and fanatics - won the battles, but did not and will not win the wars.  The heros of these events did not die in vain.  Texas is now the greatest state in the greatest nation in the world (no apologies for my prejudice) and those who attempt to take away our freedoms by terrorist acts can look forward to living in holes, fearing the sky and certain defeat.  We Texans and Americans do not shy away from the sacrifices required to sustain our way of life, liberty and pursuit of happiness.  God bless Texas, America and the men and women of our military who stand between us and our foes.

Leave the Game Perfectly Imperfect

 Did I mention I am a former Little League pitcher, umpire and coach, and that I was a high school and college basketball official for 17 years? Those experiences, despite the vast difference in the level of competition, allow me to feel the pain of the Detroit Tiger’s pitcher Armando Galarraga and Major League Umpire Jim Joyce after Joyce blew the call that meant Galarraga’s perfect game was ruined with two outs in the bottom of the ninth inning Wednesday night.

It is always the bottom of the ninth inning with two outs for every kid that has ever played baseball when he dreams about winning THE GAME with some heroic effort. Conversely, it is every sports official’s nightmare to blow a call that makes the difference in the outcome of THE GAME. Of course, THE GAME is the most important game imaginable to the dreamer.

In this instance, THE GAME was potentially one which had happened only 20 times before in the modern era of major league baseball – a perfect game, meaning the pitcher’s opposing team gets no runs, no hits, no walks and no runners are allowed on base due to a fielding error. 27 up and 27 down in 9 innings. The intensity of such a game is unlike any other, especially in the last inning, when the pressure on getting the last out with the perfect game intact is akin to performing brain surgery, or catching a baby thrown from the third-floor window of a burning building (both of which I’ve done, of course).

Unfortunately, Galarraga’s dream was dashed and Joyce’s nightmare came to life last night. The slow motion replay clearly shows the third out was made. Joyce has admitted to blowing the call, and to his credit, Galarraga has accepted the outcome gracefully, even making efforts to console Joyce who was visibly distraught as he took his place behind the plate at the beginning of Thursday's game between the same two teams. Many, especially in Detroit, have cried foul and called upon Commissioner Bud Selig to reverse the call. He didn’t and in my opinion, shouldn’t.

The rules currently do not allow slow-motion replay reviews to reverse these types of calls. This rule needs to be reviewed, but with care so as to not completely take the human element away from the game. Umpires make mistakes, as do players. It’s part of the game. Only great players, and umpires, make it to the big leagues. If they don’t perform up to par, they don’t get to stay. It is painful that this blown call was made at the moment it happened, when so much was at stake. But as the saying goes, that’s baseball – meaning almost anything can happen at any time, which makes the game (and especially THE GAME) so special.

A Tribute to the Memorial to Captain Thomas Smith, Esq.

Regretably, the death of an attorney isn't something many people regret.  In fact (and in keeping with the general theme of my blog thus far), it has been suggested that attorneys should be buried 8 feet below ground rather than the customary 6 feet, because deep down, we're really nice people.  Others joke that the definition of a busload of attorneys plunging over a cliff is: a good start.  Thankfully this sentiment isn't universally held, and is rarely felt by fellow lawyers, except perhaps when death finally catches up to the occasional attorney drawn to the Dark Side of the practice of law.

I happened upon a series of the most eloquent, sincere expressions of remorse and regard for a fallen brother of the bar, that, in my estimation, has ever been recorded.  These came in the form of resolutions adopted by the Tyler, Texas Bar Association and subsequent responses by the Tyler Court of Appeals on the occasion of the accidental death of Captain Thomas Smith, the clerk of the Court, on the stormy night of October 15, 1880, as the result of being run over by a train.  These were included in memoriam, in Volume IX of The Texas Court of Appeals Reports, entered in accordance with an Act of Congress in the Office of the Librarian of Congress, at Washington. 

The attorney and owner of the company I work for acquired a set of these beautiful, now cracked leather-bound books when he bought out his partners years ago.  They have been residing unnoticed in our reception area bookshelves until recently, when he picked up this particular volume at random and began reading, at first silently, then aloud the words penned 130 years ago lamenting the sudden loss of Captain Smith.  He continued his oration for about 10 minutes, and I could tell by his careful enunciation and emphasis of the words he was reading for the first time that he was as spellbound by them as I was.

I think it might be disrespectful to the authors of these resolutions, not to mention Captain Smith, to reprint them in their entirety here, but I would like to share one writer's comments and quote him exactly, as he has expressed my sentiments about Captian Smith, ere I knew him at all.

"MAY IT PLEASE THE COURT:  On presenting these resolutions touching the death of Capt. Thomas Smith, on behalf of the committee appointed by this court, I cannot expect to speak as my eloquent brother who preceded me has spoken.  Yet I beg to add, for the individual members of that committee, the assurance of their appreciation of the worth and virtues of the lamented dead.

I, sirs, was a stranger to the deceased, as I am to his family and to many of my professional brethren now around me, and I am a resident of a distant portion of the State, but I feel that an appreciation of, and respect for, the name and character of such a man as was he to whose memory we have assembled to do honor, should not be and are not restrained by conventionalities or bounded by geographical lines or limits, but that such a life and character is the common heritage of all men who admire the virtue, worth, and dignity of true moral and intellectual manhood.

 It is creditable to the charity, if not the sincerity of mankind, that they are always so willing to speak kindly of the dead as to be often carried by that charity beyond the limits of strict truth.  But we can rejoice and be proud today that these resolutions contain no line or utterance that is not beautified by the impress of sincerity and truth, and that they contain an earnest tribute to departed worth and virtue.

By these resolutions we convey to those loved ones who so deeply mourn the departed, all of comfort and condolence that is contained in the assurance therein given of the reverence, respect, and affection entertained for their husband and father by his friends and associates who knew him best; and, having done this much, we can but commend them unto Him who is willing and able to pour upon their bleeding hearts a balm of hope and consolations more healing and soothing than any man can offer.

For a third of a century the deceased went in and out before his fellowmen "wearing the white flower of a blameless life;" and though no dirge-breathing bands have told his requiem, though perchance no proud mausoleum will be reared above his humble grave, though his name may not be emblazoned on the pages of history, yet the bitter sorrow of his devoted family, the grief and the gloom that enshroud the hearts of his fellow citizens, and the tributes to his zeal, capacity, and fidelity so earnestly and eloquently paid by his professional friends and associates and by this court, all testify that in every relation of life he discharged the full measure of his duty, and therefore he has not lived in vain; for, as has been most beautifully said:

"No stream from its source flows seaward, how lonely soever its course that some land is not gladdened.  No star ever rose and set without its influence somewhere.

"No life can be pure in its purpose and strong in its strife, and all life not be purer and better thereby.  Surely the spirits of just men made perfect on high, the army of martyrs who stand round the throne, and gaze on the face that makes glorious their own, know this surely at last.  Honest love, honest sorrow, honest work for the day, honest hope for the morrow - are these worth nothing more than the hands they make weary, the hearts they have saddened, or the lives they leave dreary?  Hush!  The manifold voice of the heavens to the Spirit, Echo: He that o'ercometh shall all things inherit." 

I can only hope that upon my death I should be remembered by my family, friends, business and professional acquaintances in a way that approaches the level of respect and appreciation expressed for the late Captain Smith.  These words inspire me to be a better father, husband, friend and attorney.  And they remind me to look both ways before crossing a railroad track. 

Beware the Ides of March Madness

The NCAA men's basketball championship tournament field of 65 teams is set, so let the madness begin!  I am in the process of making predictions and entering my brackets into the ESPN Tournament Challenge online.  If you are interested in participating (and even winning the $10,000 Grand Prize), go to http://games.espn.go.com/tcmen/en/entry and join my group named RDJ March Madness 2010 (password - hoopsrus).

Anyone who joins and beats my best entry wins a free autographed photo of me as a member of the 1974 Tulia High School Hornets' basketball team (second place wins two photos).

UPDATE (4/8/2010):  A co-worker picked Duke as National Champion and thus bested my best bracket.  He hasn't asked for the autographed picture yet.  I suppose I should be offended, but I prefer to believe that he is waiting until he finds a proper frame. - rdj 

Texas Law and Family Cemeteries

I recently researched the law related to establishing a family cemetery on a ranch in central Texas. My research lead me to write a memorandum to my client, then an article for possible publication. I doubt it will make the cut of any respectable legal journal, so I will offer it here with the admonishment that it should not be considered legal advice to you or anyone else (living or dead). Besides, legal opinions are worthless unless they are paid for, or so the saying goes.

Oh Bury Me (Not) On The Lone Prairie:
Establishing Family Cemeteries on Texas Farms and Ranches

In the famous cowboy folk song known as “The Dying Cowboy” and “The Cowboy’s Lament” sung by the likes of Roy Rogers, Tex Ritter and Johnny Cash, the following verse appears:

"Oh bury me not on the lone prairie,
where the coyotes howl and the wind blows free,
in a narrow grave just six by three…
Oh bury me not on the lone prairie."

However forlorn this kind of interment may seem to some, a spot on the family farm or ranch might be considered by some Texans as the perfect final resting place. But before Grandpa can be buried near his favorite fishing hole on the Home Place, several state and local regulations, as well as other factors, must be considered to avoid potential violations of law, including some that carry criminal penalties. The last thing anyone (especially Grandpa) wants is to be forced to have his remains exhumed and moved, or for a well-intentioned surviving family member to be cited for a Class A misdemeanor over his dead body.

Texas Statutes

Chapters 711 through 715 of the Texas Health and Safety Code were enacted to provide direction for those concerned with the establishment and operation of cemeteries. The rules for family cemeteries, as opposed to cemeteries owned and operated by “cemetery organizations” (as defined in the statutes), are relatively easy to comply with, but are not to be ignored due to the potential penalties if violated. The following is a discussion of those sections of the Code that are related to establishing family cemeteries.

1. Section 711.001 – Definitions. This section of the Code provides the statutory meaning of 28 terms used throughout Chapter 711, General Provisions Relating to Cemeteries. These defined terms include:
· “Cemetery” is defined as “a place that is used or intended to be used for interment, and includes a graveyard, burial park, or mausoleum.” (Emphasis added to other defined terms).
· “Interment” is “the permanent disposition of remains by entombment, burial, or placement in a niche.” The term “interment” is not to be confused with “inurnment,” defined as “the placement of cremated remains in an urn.”
· “Remains” means “either human remains or cremated remains,” with those terms defined, respectively, as “the body of a decedent” and “the bone fragments remaining after the cremation process, which may include the residue of any foreign materials that were cremated with the human remains.”

It is necessary to have a clear understanding of these somewhat morbid terms to correctly apply the regulations to the intention of the landowner. For instance, if Mr. and Mrs. Ewing want to set aside a few acres of South Fork for the family members and their pets to be buried under, or their cremated remains ceremonially spread or entombed upon (hopefully after their deaths due to natural causes), it is essential to have a working knowledge of the terminology and how to navigate the rules accordingly.

2. Sec. 711.003 - Records of Interment. This section establishes the requirement for a record to be maintained of all interments in a cemetery. The record must include:
· The date the remains are received;
· the date the remains are interred;
· the name and age of the person interred if those facts can be conveniently obtained; and
· the identity of the plot in which the remains are interred.

3. Sec. 711.008 – Location of Cemetery. This section sets minimum distance requirements outside municipal boundary lines for cemeteries to be established, based on the population of the nearest municipality. These distances range from 1 mile for small communities (populations of 5,000 to 25,000), to 5 miles for large cities (populations of at least 200,000). There are some interesting exceptions to the location rules which were undoubtedly granted for site-specific purposes and/or jurisdictions, but a general exception is allowed for cemeteries existing and operating prior to enactment of the rule (September 1, 1989).

4. Sec. 711.012 – Rules. Here the Texas Funeral Service Commission is authorized to adopt rules, establish procedures, and proscribe forms to enforce and administer various sections of the chapter relating to non-perpetual care cemeteries as defined in Sec. 711.001. Family cemeteries are normally established as non-perpetual care cemeteries, thereby eliminating the need for establishing a trust fund for maintenance. The Texas Funeral Service Commission’s website at http://www.tfsc.state.tx.us/ provides general information regarding family cemeteries with specific instructions on how to survey and record plats and certificates of declaration of dedication of the land with the local County Clerk’s office. (Note - it appears from a close reading of Sec. 711.034 that only cemetery organizations are required to dedicate land for cemetery purposes, but it is recommended that private family cemetery landowners follow suit and put the public on notice of the existence of a cemetery to prevent potentially unsuitable or prohibited development on adjacent property - see Sec. 714.002, Limitation on Location of Feed or Slaughter Pens Near Cemetery).

5. Sec. 711.041 – Access to Cemetery. The general public is granted ingress and egress rights to a family cemetery via routes designated by the landowner. Visits are to be allowed during reasonable hours and only for purposes usually associated with cemetery visits. These provisions logically exclude, but can’t prevent, teenagers visiting at midnight on Halloween.

6. Sec. 711.052 – Criminal Penalties. Failure or refusal to maintain the record of interments required by Sec. 711.003 is a Class A misdemeanor. Clearly, Texas is dead serious about cemetery recordkeeping.

7. Sec. 714.001 – Depth of Graves; Criminal Penalty. This section provides for minimum burial depths based on the type of container used to hold the decedent’s body. If the container is made of impermeable material, the top surface must be at least one and one-half (1½) feet below the surface of the ground. If not made of impermeable material, the top surface of the container must be no less than two (2) feet below ground level. These requirements may be relaxed by county ordinance or rule if subsurface soil conditions or other relevant conditions so dictate. This section does not apply to interment in a sealed surface reinforced concrete burial vault. A person commits a misdemeanor punishable by a fine of not less than $100 or more than $200 if the person buries the body of a decedent in violation of this section or in violation of an ordinance or rule adopted under this section.

Local Government Rules

County governments and other quasi-governmental agencies (e.g. Lower Colorado River Authority) have only limited authority to regulate land use and establish rules related to environmental or public safety matters. These may include flood plain management, drainage, underground cabling, etc. Before having a survey conducted, it would be prudent to contact the county environmental department, the county commissioner elected from the precinct where the proposed cemetery will be located, or the county judge to determine if any rules have been instituted with regard to family cemeteries. Likewise contact the office of any other quasi-governmental agency with potential authority over use of the proposed property.


Other Factors

In addition to state and local laws, there are other factors that must be considered prior to the establishment of a cemetery on private land. These are related to real property and contract law specific to the land being considered.

First, an examination of the real property records of the subject land must be completed to determine if there are any deed restrictions prohibiting or limiting use of the land for cemetery purposes. A restriction of this type could have been included in a laundry list of restrictive covenants in a deed recorded decades ago and long forgotten, but still valid today. Restrictions may also be found in separately recorded instruments related to property located within rural subdivisions that exist throughout the state. These restrictions sometimes can be amended by a vote of the affected landowners or may terminate after a period of time under their own terms, but until such amendment or termination they remain an encumbrance on the property.

In addition to deed restrictions, the real property records must also be examined to determine if there are public and private easements that may also affect the use of the subject land. Rural Texas is a spider’s web of underground pipelines, overhead electric transmission lines, and buried telephone fiber-optic cables. These easement agreements normally restrict the use of the property within the easement area.

Another factor is whether the land to be converted to cemetery purposes is subject to a lien. If so, the deed of trust or other security agreement should be reviewed to determine if such a conversion would be in violation of the lien instrument. Lenders are wont to maintain certain loan-to-value ratios on their collateral, and conversion of a significant portion of your property to cemetery use might well have a negative impact on its market value. Why? Unfortunately, not everyone may be as fond of your late relatives as you are.

UPDATE (4/7/2010) I was informed today by the Editors of the Texas Bar Journal that they intend to publish this article in their May issue.  This decision greatly lowers my formerly high opinion of the publication's quality.  To almost quote Groucho Marx, I refuse to read any magazine that would have me as a contributing writer. - rdj

Hello and Welcome

February 15, 2010

This is the initial entry for my new blog I have dubbed Res Ipsa Loquitur, after my favorite Latin legal term which loosely translated is, "the thing speaks for itself." At this point I have no set agenda or well-defined plans for how I want to use this blog, but I hope to occasionally post useful information, thoughts, ideas or opinions that might be of interest or be amusing to someone, somewhere, out "there."

I am, among other things (and in no particular order of importance), a middle-aged lawyer, father, native Texan, conservative, husband and sports fan. I am the adopted son of my late father and widowed mother who lives in a retirement community near my younger sister and brother. I have two grown adopted sons, two school-aged step sons, and we now have a fifth son in day care. My posts will undoubtedly be influenced by these perspectives, so consider yourselves forewarned.