§30-32-1. Unlawful acts; criminal penalties.
§30-32-5. Board of Examiners for Speech-language Pathology and Audiology.
§30-32-6. Powers and duties of the board.
§30-32-9. Qualifications for licensure as a speech-language pathologist.
§30-32-10. Qualifications for licensure as an audiologist.
§30-32-12. Waiver of requirements; practice pending disposition of application.
§30-32-13. Scope of practice for speech-language pathology.
§30-32-14. Scope of practice for audiology.
§30-32-15. Speech-language pathology and audiology assistants; supervision requirements.
§30-32-17. Renewal of license or registration; renewal of lapsed license or registration; suspension, revocation and refusal to renew; reinstatement of revoked license or registration.
§30-32-18. Actions to enjoin violations.
§30-32-19. Complaints; investigations; due process procedure; grounds for disciplinary action.
§30-32-20. Procedures for hearing; right of appeal.
§30-32-22. Single act evidence of practice.
§30-32-23. Required update of review of Legislative Auditor.
(a) It is unlawful for any person to practice or offer to practice speech-language pathology or audiology in this state, or advertise or use any title or description tending to convey the impression that the person is a speech-language pathologist or audiologist unless the person has been licensed under the provisions of this article, and the license has not expired, been suspended or revoked.
(b) As of July 1, 2014, it is unlawful for any person to practice or represent that he or she is qualified to practice as a speech-language pathology assistant or an audiology assistant unless the person has registered with the West Virginia Board of Examiners for Speech-Language Pathology and Audiology under the provisions of this article, and the registration has not expired, been suspended or revoked.
(c) It is unlawful for any business entity, except through a licensee, to render any service or engage in any activity which if rendered or engaged in by an individual, would constitute the practices licensed under the provisions of this article.
(d) Any person violating any provision of subsections (a), (b) or (c) of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both.
(8) The activity of an occupational hearing conservationist engaged in hearing testing as part of a hearing conservation program in compliance with regulations of the Occupational Safety and Health Administration.
The practices licensed under the provisions of this article and the West Virginia Board of Examiners for Speech-Language Pathology and Audiology are subject to the provisions of article one of this chapter, the provisions of this article and any rules promulgated hereunder.
(1) "Applicant" means a person applying for a license required by this article.
(2) "Assistant" means a registered speech-language pathology assistant or a registered audiology assistant.
(3) "Audiologist" means a person who engages in the practice of audiology and is licensed pursuant to the provisions of this article.
(4) "Audiology" means the application of principles, methods, and procedures related to hearing and the disorders of hearing and to related language and speech disorders.
(5) "Audiology assistant" means a person registered with the board who practices under the supervision of an licensed audiologist.
(6) "Audiology disorders" means any and all conditions, whether of organic or nonorganic origin, peripheral or central, that impede the normal process of human communication including, but not limited to, disorders of auditory sensitivity, acuity, function or processing.
(7) "Board" means the West Virginia Board of Speech-Language Pathology and Audiology.
(8) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity.
(9) "Direct supervision" means the actual physical presence of a supervising licensed speech-language pathologist or supervising licensed audiologist in the room where treatment is provided by an assistant.
(10) "General supervision" means initial direction and periodic inspection of the activities of an assistant by the supervising licensed speech-language pathologist or supervising licensed audiologist, who is physically present in the building where treatment is provided and is quickly and easily available.
(11) "Initial supervision training" means training required of supervising licensed speech-language pathologists and supervising licensed audiologists before providing supervision of assistants.
(B) Teaching students in institutions of higher education.
(13) "License" means a license issued pursuant to the provisions of this article.
(14) "Licensee" means a person who is licensed pursuant to the provisions of this article.
(15) "Provisional license" means a license issued pursuant to the provisions of this article.
(16) "Registrant" means an assistant who is registered pursuant to the provisions of this article.
(17) "Registration" means a registration issued pursuant to the provisions of this article.
(18) "Speech-language pathologist" means any person who engages in the practice of speech-language pathology and who is licensed pursuant to the provisions of this article.
(19) "Speech-language pathology" means the application of principles, methods and procedures related to the development, disorders and effectiveness of human communication and related functions.
(20) "Speech-language pathology assistant" means a person registered with the board who practices under the supervision of a licensed speech-language pathologist.
(21) "Speech-language pathology disorders" means conditions, whether of organic or nonorganic origin, that impede the normal process of human communication including, but not limited to, disorders and related disorders of speech, articulation, fluency, voice, verbal and written language, Auditory comprehension, cognition/communication, and oral, pharyngeal and/or laryngeal sensorimotor competencies.
(22) "Telepractice" means the application of telecommunication technology to deliver speech-language pathology or audiology services through real time interaction from one site to another for assessment, intervention or consultation in a manner sufficient to ensure patient confidentiality.
(a) The West Virginia Board of Examiners for Speech-Language Pathology and Audiology is continued. The members of the board in office on July 1, 2013 may, unless sooner removed, continue to serve until their respective terms expire or until their successors have been appointed and qualified.
(3) One citizen member who is not licensed or registered under this article.
(c) The terms are for three years. No member may serve for more than two consecutive terms.
(d) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for at least three years.
(e) Each member of the board must be a resident of this state during the appointment term.
(f) No board member may serve as an officer of the West Virginia Speech Language and Hearing Association concurrently with his or her service on the board.
(g) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.
(h) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(i) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license or registration to practice is suspended or revoked.
(j) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as chairperson and one of its members as secretary-treasurer who shall serve at the will and pleasure of the board.
(l) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with article one of this chapter.
(m) A majority of the members of the board constitutes a quorum.
(n) The board shall hold at least one annual meeting. Other meetings shall be held at the call of the chairperson or upon the written request of four members, at the time and place as designated in the call or request.
(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
(p) Board members are immune from civil liability for the performance of their official duties so long as they act in good faith.
(a) The board has all the powers and duties set forth in this article, by legislative rule, in article one of this chapter and elsewhere in law.
(16) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.
(4) Perform random audits of continuing education, supervision records and documentation of licensure and registration requirements to determine compliance with this article.
(E) The quantity and content of pre-service and in-service instruction.
(12) Any other rules necessary to effectuate the provisions of this article.
(b) The board may promulgate emergency rules in accordance with section fifteen, article three, chapter twenty-nine-a of this code to establish requirements and procedures for telepractice in accordance with the provisions of this article, including the scope of duties and restrictions of assistants in telepractice.
(c) All rules in effect on January 1, 2013 shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Board of Examiners for Speech-Language Pathology and Audiology Fund", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.
(7) Pass a jurisprudence examination developed by the board.
(b) Subject to the renewal requirements set forth in section seventeen of this article, a license issued by the board under prior enactments of this article shall for all purposes be considered a license issued under this article.
(b) A provisional licensee may practice speech-language pathology or audiology under the general supervision of a licensed speech pathologist or audiologist only in the professional field for which the provisional license was issued.
(c) The provisional license shall be valid for a term of one year and may be renewed.
(2) Holds a certificate of clinical competence in speech-language pathology or audiology from the American Speech-Language-Hearing Association in the professional field for which they seek licensure.
(2) Has filed an application with the board and paid the appropriate application fee.
(7) Selecting, fitting and establishing effective use of prosthetic/adaptive devices for communication, swallowing or other upper aerodigestive functions.
(8) Screening of speech-language and other factors affecting communication disorders: Provided, That judgments and descriptive statements about the results of the screenings are limited to pass/fail determinations.
(b) A person licensed under this article as an audiologist is not required to obtain a license under the provisions of article twenty-six of this chapter.
(3) Meet all requirements set by the board.
(7) Meet all other requirements set by the board.
(a) Licensed speech-language pathologists and audiologists may provide services in this state by telepractice.
(5) Meet any other requirements set by the board.
(a) Licenses, except provisional licenses, and registrations may be renewed biennially, upon documentation of required continuing education and payment of a renewal fee.
(b) A license or registration which has lapsed may be renewed within one year of its expiration date in the manner set by the board.
(c) A license or registration which has lapsed for more than one year but fewer than five years may be reinstated, upon documentation of continuing education credits earned during the lapsed period equal to the credits required for renewal and payment of a reinstatement fee.
(d) A license or registration which has lapsed for more than five years may not be reinstated. A new license or registration may be issued to an applicant who complies with the requirements relating to the issuance of an original license or registration in effect at the time of the application.
(e) The board may suspend, revoke or refuse to renew a license or registration for any reason which would justify the denial of an original application for licensure or registration.
(f) The board may consider the reinstatement of a license or registration which has been revoked upon a showing that the applicant can resume practicing with reasonable skill and safety.
(a) If the board obtains information that any person has engaged in, is engaging in or is about to engage in any act which constitutes or will constitute a violation of the provisions of this article, the rules promulgated pursuant to this article, or a final order or decision of the board, it may issue a notice to the person to cease and desist in engaging in the act and/or apply to the circuit court in the county of the alleged violation for an order enjoining the act.
(b) The circuit courts of this state may issue a temporary injunction pending a decision on the merits, and may issue a permanent injunction based upon its findings in the case.
(c) The judgment of the circuit court on an application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.
(a) The board may upon its own motion based upon credible information, and shall, upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or registrant.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or registrant has violated any provision of this article.
(d) Upon a finding that probable cause exists that the licensee or registrant has violated any provision of this article or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or registration or the imposition of sanctions against the licensee or registrant.
(e) Any member of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board may sign a consent decree or other legal document on behalf of the board.
(14) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.
(8) Other disciplinary action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
(a) Notice and hearing requirements are governed by the provisions of article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, the administrative law judge shall prepare a proposed written order at the conclusion of a hearing containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or registrant has violated any provision of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
Any licensee or registrant adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.
On or before December 1, 2014, the Legislative Auditor shall update the Sunrise Report of January 2013 on the requirements for speech-language pathologists, audiologists and assistants to practice in public schools, and present the report to the Joint Standing Committee on Government Organization, with recommendations.


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Posted On October 14, 1926 by &filed under High Court, Madras High Court.
1. This Civil Revision Petition is presented against an order by the Additional District Munsif of Palghat refusing to amend the decree in O. S. No. 16 of 1920 on his file. The suit was on a mortgage; a preliminary decree was passed on 6th November 1920 and the final decree on 10th January 1922. The original decree-holders assigned the decree and the assignee applied for the sale of the mortgaged property. It was then objected by the 6th defendant that the survey number relating to the property was erroneous and the property was therefore misdescribed. The Court accepting this contention dismissed the application for sale. Then, on 28th July 1923 the decree-holders, including the assignee, petitioned to have the schedules attached to the final decree and also to the plaint, in which the same error occurred, amended. The Additional District Munsif, in dismissing the application, has assigned two reasons; firstly that it was due to the gross negligence of the decree-holders that they did not discover the mistake earlier; and, secondly, that such a petition did not lie inasmuch as the decree was not in variance with the judgment.
2. As regards the first point I do not think that the mere length of time which elapsed between the commission of the original error and its discovery can ipso facto be taken, as the Additional District Munsif seems to have taken it, as convicting the decree-holders of gross negligence. Circumstances may very well be imagined in which they were reasonably misled as to the correct survey number in the first instance and nothing may have occurred subsequently until the application for sale put them on the right track. I think therefore that this conclusion of the Additional District Munsif is unsupported by adequate evidence. His main and quite sufficient ground, if it be a good ground for dismissing the petition, clearly is that he had no jurisdiction to entertain it and the question therefore is whether such a jurisdiction exists in a case where the decree, although it, may be erroneous, is in conformity with the judgment. There are two cases which have been relied upon by the respondents for an answer to this question in the negative. The first is Parameshraya v. Sesha Giri Appa  22 Mad. 364 which was Letters Patent appeal heard by three Judges. In that case the judgment of the trial Court, while dismissing the claim entirely contained a finding against the 4th defendant which was unnecessary for the disposal of the suit. The decree as originally drafted merely dismissed the suit without more. The 4th defendant applied for and obtained an amendment of the decree by the insertion of a finding upon the issue against him, avowedly in order that he might appeal against that issue. It was held that the decree was already in conformity with the judgment inasmuch as the substantial effect of the judgment was to dismiss the suit, and the finding upon the issue in question was a mere superfluity. It was accordingly held that the Subordinate Judge who tried the suit had no power to amend the decree. It seems apparent that here there was no question of error such as is contemplated by Section 152, Civil P. C.
3. Similarly in the second case Pichayya v. Subba Rao  3 M. L. W. 499 the judgment and the decree awarded costs against the defendant whereas according to the award upon which they were based costs were to be recovered out of the estate. Upon an application the trial Court amended the decree into conformity with the terms of the award. Whatever mistake it may be held was committed in drafting the decree in this case it is clear that it was of an entirely different character from that now under consideration and although the judgment of the Bench contains certain rather wide observations about the limitation of the power of the Court to amend the decree when it is already in conformity with the judgment, I think that they must be read in their context and as applied to the circumstances which gave rise to them.
4. For the proposition that Courts have power to amend the decree, even when it is already in conformity with the judgment a number of decisions have been cited. I may refer to Mahaboob Begum v. Lal Begum  14 M. L. W. 445 Somasundaram Chettiar v. Velusawmy Naicker  M. W. N. 107 and to several Allahabad cases. Pule Bishunatha Rao v. Bramhanand Swami  16 A. L. J. 749 Azizur Rahman Khan v. Abdul Hai Khan  18 A. L. J. 501 and a Calcutta case, Chandra Kumar Mukhopadyaya v. Sudhansu Badani Debi A. I. R. 1924 Cal. 895 It will be sufficient, however, for me to follow a similar case recently decided by Devadoss and Waller, JJ., in C. M. P. No. 429 of 1925. That was a case of an alleged error in a survey number occurring in a plaint which was carried into the judgment and decree and was only detected when delivery proceedings were taken. It was held that the mistake might be rectified notwithstanding that the judgment and decree both contained it. Adopting the reasoning employed in that case, which is indistinguishable in its main features from this one, I consider that the Additional District Munsif had jurisdiction to entertain the application.
5. I accordingly set aside the order and remand the petition for a fresh hearing and disposal. If it should appear that the evidence established that the decree-holders were indeed guilty of gross negligence in omitting to obtain the correction at an earlier stage the Court will of course be at liberty to dismiss the application upon that ground.
6. In the circumstances the petitioner must pay the respondent’s costs of the petition in both the Courts.

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These regulations apply to all Lakes and associated lands under the jurisdiction of the Brazos River Authority (BRA).
These regulations are adopted and promulgated under authority vested in the Board of Directors of the BRA by the laws of Texas, including, but not limited to, Chapter 8502 of the Special District Laws Code; Chapters 49 and 51 of the Texas Water Code; Chapters 25 and 31 of the Texas Parks and Wildlife Code; and Chapter 542 of the Texas Transportation Code.
The Regulations for the Governance of Brazos River Authority Lakes and Associated Lands adopted by the Brazos River Authority Board of Directors on July 31, 2006, is hereby repealed and replaced in its entirety as of the effective date herein.
a. Commercial On-Water Facility: an On-water Facility serving more than one single- family residence or serving the public at-large (exception: a multi-slip On-Water Facility permitted to a condominium association or home-owner’s association for use at no additional charge by the entity’s members and guests).
b. Residential On-Water Facility: an On-Water Facility serving a single-family residence.
c. Lakes: Possum Kingdom Lake located in Young, Palo Pinto, Stephens, and Jack Counties with the boundary of the Lake defined by the 1,000 foot Mean Sea Level (msl) contour line. Lake Granbury located in Parker and Hood Counties with the boundary of the Lake defined by the 693 foot msl contour line. Lake Limestone located in Limestone, Leon, and Robertson Counties with the boundary of the Lake defined by the 363 foot msl contour line. Each Lakes contour line may meander and change over time with natural forces, including erosion and accretion.
d. Watercraft: the term “Watercraft”, for the purposes of these Rules and Regulations, shall have the same meaning as the term “Vessel” in the Texas Water Safety Act.
e. On-Water Facility: Residential On-Water Facilities and Commercial On-Water Facilities, whether floating or affixed to the lakebed, including but not limited to: docks, piers, platforms, and stationary inflatable devices which are 10 feet or more in length/width.
g. Live Load: the active and changing loads that may be imposed on an On-Water Facility.
The water level in the Lakes will not be constant. BRA Lakes are water supply and conservation projects. While it is the desire of the BRA to keep the Lakes as full as possible, the level of the water will vary, depending on the amount of water diverted locally, evaporation rates, amounts of rainfall and runoff in the Brazos Basin upstream, required releases, and other factors. The level in any lake may drop substantially below the full lake level.
Swimming in all areas of the Lakes, including designated swimming areas, is solely at the risk of the swimmer.
In the case of extreme flooding, water contamination, or other emergency or natural disaster, the General Manager/CEO is authorized to declare restrictions on the use of all or any portion of BRA Lakes as deemed necessary and convenient for purpose of public health, safety and welfare. No person shall engage in any activity that violates such restrictions.
Pursuant to the authority granted by §51.127 of the Texas Water Code, the BRA may, from time to time, adopt standards and regulate activities as provided therein on any stream or body of water, or any body of land, or any easement owned or controlled by the BRA.
Variances to these regulations for governance, where not otherwise mandated by federal, state or local laws, may be granted by the General Manager/CEO or his designee in cases of imminent public necessity/calamity; or to protect public health, safety or welfare.
(3) Boat Sewage Disposal Act, 30 Texas Administrative Code §§321.1 – 321.18.
(1) The BRA's General Manager/CEO is authorized to designate areas or zones in which the operation of watercraft shall be prohibited or in which the speed of watercraft shall be restricted. These zones shall be marked by buoys or signs stating the prohibition or restriction. No watercraft shall be operated within a prohibited zone. Watercraft operating in any restricted zone shall be operated in a manner that fully complies with the posted restriction.
(2) Watercraft operating within 50 feet of the shoreline or 50 feet of any boathouse, dock, on-water facility, occupied watercraft, or area in which people are swimming or diving shall be operated at a slow, no wake speed (a headway speed that does not create a swell or wake).
(3) No person or watercraft shall be in the water within 100 feet of any public fishing pier that is operated or maintained by the BRA, and which is designated for fishing only.
(4) The operator of a watercraft involved in a collision, accident, or other casualty that results in death or injury to a person or damage to property in excess of $2,000 shall report the incident to a BRA Lake Ranger as soon as possible, but not later than 30 days from the date of the collision or accident.
(1) Watercrafts may be moored or beached for a period of time not to exceed two (2) days in locations on the Lakes which will not interfere unduly with recreational use of the shoreline or lake by others.
(2) Except as provided in subsection (1) above, Watercraft shall be anchored, moored or berthed at private or commercial facilities or areas of the Lakes maintained in accordance with permits or contracts issued by the BRA.
(3) No watercraft shall be moored longer than 15 minutes at a BRA owned courtesy dock.
(4) In an emergency, any watercraft left unattended shall, to the extent possible, be securely moored or anchored and suitably flagged and lighted. The watercraft shall be removed to an approved mooring or berthing area as soon as possible.
If applicable, watercraft must display the appropriate clean water sticker pursuant to 26.044 of the Texas Water Code.
Pursuant to the authority granted in §51.127 of the Texas Water Code, the following provisions apply to On-Water Facilities, including but not limited to: docks, piers, platforms, and stationary inflatable devices which are 10 feet or more in length/width.
The privilege of installing an On-Water Facility is not an inherent right with the control or ownership of waterfront property. No facility shall be situated in, on, or over the waters of the lakes or on BRA land without the appropriate BRA permit. Any such facility without the appropriate BRA permit shall be subject to immediate removal at the owner’s expense. A permit or contractual relationship shall be obtained from the appropriate Area Project Manager prior to construction, modification, or transfer of any on-water facility in, on, or over the Lakes. Applications for permits shall be made on forms provided by the BRA. The BRA exercises the right to grant or deny On- Water Facility Permits as deemed appropriate in the sole discretion of the BRA.
(1) All On-Water Facilities must be constructed and maintained in a structurally sound manner which does not create a safety hazard or environmental concern.
(2) On-Water Facilities may not be situated in a manner that unreasonably interferes or obstructs access to other permitted facilities or neighboring properties.
(3) There shall be no more than one On-Water Facility on any one shoreline lot.
(4) On-Water Facilities shall not extend more than one-third of the distance between opposite shorelines of any area of the Lakes where the distance between the shorelines is less than 300 feet.
(5) Lake level fluctuation shall not constitute a basis for extending On-water facilities further into the Lakes.
(6) In narrow sections of the Lakes where the distance between opposite shorelines is 120 feet or less, a clear channel, at least 40 feet in width, shall be maintained between the facilities on opposite shorelines, with the location of such channel being as nearly as practicable over the deepest portion of that section of the Lake.
(7) A scaled drawing showing the location and dimensions of the proposed facility must be included in the application. In addition, if property boundaries are uncertain, a property survey may be required.
(8) Applicant must own or lease the land adjoining the Lake at the location of the proposed facility and provide to the BRA, at the time of permit application, documentation establishing the ownership or leasehold interest in the property.
(9) The On-Water Facility identification number, furnished by the BRA, must be posted conspicuously on all On-Water Facilities.
(10) Buoyancy for all floating facilities shall be provided by polystyrene, multiple air filled internal compartments, or a similar flotation material that is encapsulated in an approved rustproof, non-corrosive, UV resistant shell that is a minimum of 0.15 inches in thickness (such as, high impact polyethylene).
(11) Barrels, pontoons, drums or other improvised equipment shall not be used for flotation.
(12) Amber reflectors must be installed on all sides of facilities at no greater than 20-foot intervals. Those portions of on-water facilities extending farther than 100 feet into the Lakes shall be illuminated during hours of darkness in such a manner as to make such facilities visible to boat traffic on the Lakes without the lights themselves impairing the vision of boaters.
(13) On-Water Facilities may not be more than one story; however, On-Water Facilities may include a gabled or flat roof that can be used as a sun deck. Sun Decks located on the roof of an On-Water Facility may include a covering for shade; however, coverings may not be used as a third-story.
(14) On-Water Facilities may be built with side and back walls; however, there must be a Lake-side entrance into the On-Water Facility that is fully open and subject to visible inspection by BRA personnel from a Watercraft at all times.
(16) Living quarters, kitchens (any space adapted to cook or prepare food), plumbing, sinks, bathing facilities or toilet facilities are not allowed in or on facilities permitted on the Lakes.
c. The BRA reserves the right, in its sole discretion, to further restrict On-Water Facilities on BRA Lakes if placement of the On-Water Facility: creates a hazard to navigation; results in a nuisance; impairs the BRA’s ability to operate and maintain the Lake; or interferes with or restricts access to adjacent properties or On-Water Facilities.
(1) All Residential On-Water Facilities will generally be located as close to the center-most part of the water frontage as possible.
(2) The area for all Residential On-Water Facilities (including areas for Watercraft slips or storage) shall not exceed 2,000 square feet in total. Walkways to the On-Water Facilities, 6 feet or less in width, may be constructed and shall not be included in the calculation of the total area for Residential On-Water Facilities.
(3) Residential On-Water Facilities, previously permitted to exceed 2,000 square feet, may re-build or replace the facility with a structure of the same square footage. All other facility specifications apply.
(4) Personal water craft may be stored on the sides of a permitted Residential On-Water Facility; however, Watercraft storage shall be managed in a manner that does not create an unreasonable hazard or overcrowding.
(5) Residential On-water facilities shall not extend further than 100 feet into the Lake from the shoreline.
e. Dock size and configuration.
However, in no event shall a residential On-Water Facility extend further than 200 feet from the shoreline of any Lake.
(7) Privately operated fuel/oil dispensing systems are prohibited. Automatic shut- off valves are required for pre-existing systems.
(1) Due to the unique nature of Commercial On-Water Facilities, such facilities shall be evaluated on a case by case and BRA reserves the right to establish appropriate restrictions, limitations and requirements.
(2) Commercial On-Water Facilities with slips greater than 26 feet in length must provide, at a minimum, one sewage pump-out facility.
(3) The design of a Commercial On-Water Facility must be signed and sealed by a professional engineer/architect licensed to do business in the State of Texas.
Other structures such as duck blinds, casting targets, slalom courses, shall not be erected on the Lakes except by written permission of the BRA.
g. All facilities must comply with any and all additional requirements of federal, state, and local laws.
h. Floating habitable structures are prohibited on BRA owned, operated, or managed lakes. Houseboats or other watercraft with overnight accommodations that are designed for navigation are excluded from this prohibition.
(5) Results in the addition, replacement, or upgrading of the electrical wiring system.
Voluntary replacement of non-encapsulated flotation that does not involve or require the repair, replacement or upgrading of existing structures (other than the substructure supporting the encapsulated flotation) shall not be considered a substantive repair and shall not require additional upgrade of the On-Water Facility.
The BRA may revoke the permit of any On-Water Facility that is in violation of the provisions of these Rules and Regulations. In the event an On-Water Facility is in violation of these provisions, the BRA may exercise the right to grant or deny continuation of the On-Water Facility Permit as deemed appropriate in the sole discretion of the BRA. The BRA reserves the right to revoke permits and require removal of On-water Facilities at the expense of the owner/permittee in the following circumstances: if the Facility creates a public health, safety, or welfare concern; the permittee has failed to timely tender any applicable associated fees; or the facility has an adverse environmental impact to BRA Lakes or property. Additionally, pursuant to §51.128 of the Texas Water Code, any violation of this section may result in criminal penalties.
The BRA shall, from time to time, establish fees for Commercial On-Water Facilities on BRA Lakes.
Pursuant to the authority granted in §51.127 of the Texas Water Code and §31.092 of the Texas Parks and Wildlife Code, the General Manager/CEO is authorized to identify designated areas in which specific activities are restricted or prohibited for purposes of public safety or security. These designated areas shall be marked with signs or buoys that clearly indicate that specific activities are restricted or prohibited in that area. Signs or buoys marking restricted or prohibited areas shall be complied with at all times.
a. Scuba diving is allowed in the Lakes only in areas within 150 feet of a shoreline, except for emergency rescue or salvage operations or for special events for which exceptions may be granted by the BRA. Scuba diving in other areas is prohibited.
b. Divers shall display a warning flag or sign indicating "diver down" on a buoy or boat in the immediate area where scuba diving is in progress. The sign must be visible from a distance of 100 feet. Warning flags and signs shall be removed as soon as all divers return to the boat or shore.
c. A "diver down" flag shall be red with a diagonal white stripe and shall be at least 15 inches square or, if larger, may be rectangular shaped.
d. Scuba diving shall not be conducted in areas that will block or interfere with normal boat traffic.
Pursuant to the authority granted by §51.127 of the Texas Water Code, the following rules apply to all hunting on any BRA lands or water.
a. Hunting is prohibited on BRA lands, including leased properties. However, the BRA reserves the right to lease specific tracts for bow hunting, as deemed appropriate by the BRA.
b. Hunting on BRA Lakes is limited to hunting of waterfowl in season from a stationary blind at a fixed location in or on the Lakes, as specifically permitted by the BRA. Any other hunting on BRA Lakes is strictly prohibited.
(1) The hunting of waterfowl on the Lakes shall be conducted in accordance with all applicable provisions and requirements of Federal, State and local laws.
(2) Written permits for waterfowl hunting sites shall be issued by the BRA and must be presented at the permitted site upon request by law enforcement officials.
(3) The fee for a waterfowl hunting site permit shall be established by the BRA's Board of Directors, and such fee may be adjusted at the sole discretion of the Board.
d. Bowfishing is legal for taking non-game fish such as gar and buffalo in accordance with Texas Parks and Wildlife Regulations.
(1) Fish may be taken with longbow, recurve bow, compound bow, or crossbow.
(2) Taking or attempting to take fish with bow and arrow may not be performed within 100 ft. of any marked or designated swim area or public boat ramp or within 50 feet any On-Water Facility or restricted area.
(3) Boaters participating in bowfishing should be courteous to lakefront property owners with respect to noise and light setups.
e. Other than as specifically authorized in this section, no firearms shall be discharged along or across BRA lands or waters of the Lakes, except at target ranges approved by the BRA.
Persons who violate the above terms are subject to revocation of their waterfowl hunting site permit, termination of their hunting lease, and/or any and all additional civil and criminal remedies.
v. Aviation activities, to include landing and take-off, are allowed at BRA approved airfields and airstrips only. (Exception: emergency medical services) This provision does not restrict landings and take-offs on the waters of the Lakes.
The BRA may seize any personal property located on the Lakes or adjacent BRA lands which is unauthorized, or which is abandoned, or which is left unattended without conforming with BRA regulations for mooring or anchoring, or with respect to which any fee or charge imposed by the BRA is not paid when due, in accordance with applicable federal, state, and local laws.
Pursuant to the authority granted in §542.202 of the Texas Transportation Code and §51.127 of the Texas Water Code, the General Manager/CEO is authorized to designate areas on BRA lands adjacent to the Lakes wherein the speed of motor vehicles operated in such areas shall be restricted for purposes of safety. Such areas shall be marked with signs on which the maximum speeds at which motor vehicles may be operated shall be posted. No motor vehicle shall be operated in any such area at a speed in excess of the speed thus posted.
Pursuant to the authority granted in §51.127 of the Texas Water Code, the BRA shall regulate the following at their sole discretion.
a. Private notices, advertisements and signs are prohibited on any portion of the Lakes, facilities on the Lake, or BRA lands, except by specific written permission of the BRA. This provision shall not apply to signs, banners or private notices placed on BRA leased property by the lessee.
b. No person, firm or corporation shall engage in any business or commercial operation on any portion of the Lakes or BRA lands, except by specific written permission of the BRA.
c. Exhibitions, water shows, boat races or any other public event may be performed on the Lakes or on BRA lands only by prior specific written permission of the BRA.
d. Concessions are only authorized in conjunction with BRA approved special events.
Pursuant to the authority granted in §51.127 of the Texas Water Code, the General Manager/CEO is authorized to designate specific BRA parks or public use areas in which the possession or consumption of alcoholic beverages is strictly prohibited. All such areas in which alcoholic beverages are not allowed shall be clearly posted.
The BRA may establish and post a schedule for closing or restricting admittance to a designated public use area, or portion thereof. Entry into public use areas without complying with the posted schedule is strictly prohibited.
Water shall not be pumped or diverted from the Lakes except as specifically permitted in writing by the BRA.
Pursuant to the authority granted in Title 30, Chapter 285 of the Texas Administrative Code (TAC), the BRA shall administer and enforce the OSSF program as the authorized agent of the TCEQ in its area of jurisdiction and shall enforce Chapter 366 of the Texas Health and Safety Code.
It is the responsibility of individuals installing, constructing, repairing, replacing or modifying on-site sewage facilities to coordinate with the local lake offices at Possum Kingdom Lake and Lake Limestone to determine when and if a permit is required.
j. Hangar leases at Possum Kingdom Airport.
Pursuant to §31.127 of the Texas Parks and Wildlife Code and/or §51.128 of the Texas Water Code, a person who violates or fails to comply with any provision of these regulations is guilty of a Class C misdemeanor.
An enforcement officer who issues a citation to or arrests a person for a violation of these regulations may deliver to the alleged violator a written notice to appear before the Justice of the Peace or county court having jurisdiction in the area where the alleged offense was committed. The BRA does not collect or receive any funding from fines that may be assessed by a Justice of the Peace or county court having jurisdiction in the area where the alleged offense was committed.
In any prosecution for violation of these regulations, it shall not be necessary for the State to prove that the installation of any sign, buoy or marker was authorized. Any person charged with a violation of these regulations may prove, as a defense, that installation of any sign, buoy or marker was not authorized.
The BRA recognizes the existence of deed restrictions and covenants, but generally defers to property owners and home owner associations for enforcement. The BRA is not required to issue permits for On-water Facilities on lots where On-Water Facilities were prohibited in previously approved and executed development agreements.
If any part of these regulations should be found invalid or unconstitutional, the validity of the remainder hereof shall not be impaired.
These regulations are hereby adopted by the Board of Directors of the Brazos River Authority on October 27, 2014, at its regular board meeting.


Home > CAFC Opinions > Can Foreign Sales Infringe U.S. Patents?
Can Foreign Sales Infringe U.S. Patents?
It is a deceptively simple question with a not so simple answer. A purely foreign transaction is certainly beyond the reach of U.S. patent law, but what if part of the transaction occurs within the United States? For example, if a company executes a contract in the U.S. to manufacture and deliver a product overseas, and that product is covered by a U.S. patent, has the patent been infringed? After decades of confusion in the courts, the Federal Circuit provided some much needed guidance in its 2014 ruling in Halo Electronics, Inc. v. Pulse Electronics, Inc., 769 F.3d 1371 (Fed. Cir. 2014), but stopped short of announcing any bright-line tests. This article examines the efforts that the Federal Circuit and district courts have made to resolve this fundamental question of infringement liability in our increasingly global economy.
35 U.S.C. § 271(a) provides in relevant part that “whoever without authority…offers to sell, or sells any patented invention, within the United States…infringes the patent.” This begs the question, however: is it “offer/sell in the United States a patented invention” or “offer/sell a patented invention for delivery in the United States?” In other words, does the location of the act of offering, negotiating and/or contracting control, or does liability turn on the ultimate delivery location of the thing that was offered or sold? A separate statute – Section 271(f) – makes it an act of infringement to sell components of a patented invention in the United States for export and assembly overseas, but does not cover products that are manufactured entirely in another country.
In the wake of Transocean, district courts struggled with how to apply the Federal Circuit’s holding to the scenario of a transaction that occurs in the U.S. contemplating delivery of an otherwise infringing product overseas. In particular, what has continued to cause confusion is defining where a “sale” occurs geographically for purposes of Section 271(a). A sale can be thought of as encompassing several distinct steps – negotiation, contract execution, payment, title transfer, and delivery – not all of which necessarily happen in the same place. Although the Transocean court concluded that the negotiation and execution of a contract in Norway did not insulate the defendant from “sale” liability where the product was ultimately delivered into the United States, the court stopped short of adopting a per se rule that the delivery location controls the outcome in all cases.
The Federal Circuit’s later decision in Halo gives further guidance, but still does not provide any bright-line rules. In Halo, the defendant had engaged in U.S.-based negotiations to manufacture allegedly infringing electronic components overseas and deliver them to foreign device manufacturers, who in turn incorporated the components into finished products for sale around the world, including the United States. The Federal Circuit concluded that the defendant had not engaged in any infringing “sale” in the U.S., reasoning that “when substantial activities of a sales transaction, including the final formation of a contract for sale encompassing all essential terms as well as the delivery and performance under that sales contract, occur entirely outside the United States, pricing and contracting negotiations in the United States alone do not constitute or transform those extraterritorial activities into a sale within the United States for purposes of § 271(a).” The Halo court separately reaffirmed Transocean’s logic with respect to offers to sell, stating simply “[a]n offer to sell, in order to be an infringement, must be an offer contemplating sale in the United States.” Halo left unanswered, however, what test courts should apply to determine what constitutes “substantial activities of a sales transaction” that would dictate the location of a sale for purposes of 35 U.S.C. § 271(a).
At least one post-Halo district court case, M2M Solutions LLC v. Motorola Solutions, Inc., 2016 U.S. Dist. LEXIS 872 (D. Del. Jan. 6, 2016), concluded that even where there are significantly more U.S.-based sale transaction activities, the ultimate delivery location is the critical factor in determining the location of the sale for purposes of infringement. In M2M, the defendant (a U.S. company) had not only negotiated the sale with another U.S. company in the U.S., but had also received payment in the U.S. The products at issue (electronic components, like in Halo), were manufactured overseas and delivered to a foreign device assembler (a separate company), who incorporated the accused components into finished products that were then delivered around the world, including to the United States. In ruling that the overseas sales were non-infringing, the court cited several pre-Halo district court rulings for the proposition that the ultimate delivery location is the principal consideration, including Ziptronix, Inc. v. Omnivision Techs., Inc., 71 F. Supp. 3d 1090 (N.D. Cal. 2014) and Lake Cherokee Hard Drive Techs., L.L.C. v. Marvell Semiconductor, Inc., 964 F. Supp. 2d 653 (E.D. Tex. 2013).
Even if one adopts the place of delivery as the critical factor in determining the location of a sale, the liability inquiry does not end there if the product is subsequently imported into the United States, and the seller is cognizant of that fact. For example, it is common in many international transactions to have title pass to the buyer free on board (FOB) a foreign port just before delivery to the United States. Does the foreign title transfer insulate the seller from infringement liability?
In North American Philips Corp. v. American Vending Sales, 35 F.3d 1576 (Fed. Cir. 1994), the Federal Circuit held that it would “exalt form over substance” to say that the FOB location determined the location of a sale for purposes of Section 271(a). Building on this principle, the Federal Circuit later held in Litecubes, LLC v. Northern Light Products, Inc., 523 F.3d 1353 (Fed. Cir. 2008), that in a case where “the American customers were in the United States when they contracted for the accused [products], and the products were delivered directly to the United States,” the location of the sale was the United States despite the fact that the products had been shipped FOB Canada.
Notably, the MEMC court left open the possibility that the Japanese seller could still be liable for induced infringement under Section 271(b) because there were facts to support the conclusion that it was actively assisting the downstream U.S. company to infringe, rather than merely shipping out the products with only a generalized awareness of their ultimate destination. A similar scenario played out in Power Integrations, Inc. v. Fairchild Semiconductor International, Inc., 711 F.3d 1348 (Fed. Cir. 2013). In that case, Fairchild had sold accused power circuits to foreign manufacturers for incorporation into cell phone chargers that were sold around the world. While the Federal Circuit rejected the plaintiff’s demand for lost profits damages based on all worldwide sales, it upheld the argument that Fairchild might be liable for induced infringement stemming from the portion of chargers that were ultimately imported back into the U.S. by the foreign manufacturers. Relevant to this determination was the fact that Fairchild was not only aware of the subsequent importation, but had indemnified the foreign manufacturers for U.S. infringement. The Federal Circuit nonetheless denied any award of damages under the induced infringement theory because the plaintiff had not proven what percentage of the accused power circuits had actually ended up in the United States.
So does negotiating and executing a contract in the U.S. for manufacture and delivery of a product outside the U.S. infringe a U.S. patent? The consensus answer appears to be “no” in light of district court cases like M2M, Ziptronix and Lake Cherokee, although the Federal Circuit has yet to set forth a bright-line test. Other district court cases support the proposition that, even absent direct liability under Section 271(a) for an overseas sale, a company could be liable for induced infringement under Section 271(b) if it deliberately conspires to encourage subsequent importation or use in the U.S. However, as shown in MEMC and Power Integrations, a bare allegation that the defendant was aware that some of its products would ultimately wind up in the U.S. is likely insufficient, and courts will look for proof of specific encouragement of U.S. importation and use, as well as proof of the actual quantity of products that ended up in the United States. Developments in this area of the law should be monitored given their potential impact on international business transactions.


Attorney: Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellant Hinebaugh. Richard D. Gronna, Honolulu, for Defendant-Appellant Ayala. Donn Fudo and Stephen K. Tsuhima, Deputy Prosecuting Attorneys, City and County of Honolulu, for Plaintiff-Appellee.
Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellant Hinebaugh.
Richard D. Gronna, Honolulu, for Defendant-Appellant Ayala.
Donn Fudo and Stephen K. Tsuhima, Deputy Prosecuting Attorneys, City and County of Honolulu, for Plaintiff-Appellee.
After a jury trial, the Circuit Court convicted Hinebaugh and Ayala of Count 1 - Attempted Murder in the Second Degree, in violation of Hawaii Revised Statues (HRS) § § 705-500 (2014), 707-701.5 (2014), and 706-656 (2014); Count 2 - Robbery in the First Degree, in violation of HRS § 708-840 (Supp. 2013) and/or 708-840(1)(b)(i) (Supp. 2013); Count 3 - Kidnapping, in violation of HRS § 707-720(1)(e) (2014); Count 5 - Identity Theft in the Second Degree, in violation of HRS § 708-839.7 (2014); and Count 6 - Theft in the Second Degree, in violation of HRS § 708-831(1)(b)(2014). Hinebaugh was also convicted of Count 4 - Unauthorized Possession of Confidential Personal Information, in violation of HRS § 708-839.55 (2014).
On appeal, Hinebaugh and Ayala4 contend that the Circuit Court improperly admitted certain physical and testimonial evidence, and Ayala contends that the Circuit Court improperly excluded evidence of Hinebaughs juvenile conviction and abused its discretion in denying his motion for severance. Hinebaugh contends that the State committed prosecutorial misconduct by improperly commenting on her exercising her right not to testify, improperly shifting a burden of proof to Hinebaugh, and presenting improper character evidence.
After a careful review and consideration of the parties arguments, the record on appeal, and relevant legal authorities, we resolve Hinebaugh and Ayalas points on appeal as follows and affirm Hinebaugh and Ayalas Judgments of Conviction and Sentence.
Ayala contends that testimony regarding zip ties should have been excluded because zip ties were not utilized in the commission of the offenses5, and both Ayala and Hinebaugh contend that admission of the evidence constituted impermissible character evidence under Hawaii Rules of Evidence (HRE) Rule 404(a) and impermissible evidence of other crimes, wrongs, or acts under HRE Rule 404(b)6 . We disagree.
1. The Circuit Court properly excluded evidence of Hinebaughs juvenile conviction.
Ayala contends that he should have been allowed to introduce Hinebaughs juvenile conviction for arson and attempted murder of her father to prove that Hinebaugh had motive to attack CW. However, admission of the juvenile conviction would only show Hinebaughs motive or plan to injure her father, not make it more or less probable that she had a possible motive or plan to injure CW. Therefore, the conviction was inadmissible under HRE Rules 401, 4029, and 404(b), and the Circuit Court properly excluded evidence of Hinebaughs juvenile conviction.
2. The Circuit Court did not abuse its discretion in denying Ayalas motion for severance.
Ayala contends that the failure to sever his trial from that of Hinebaugh denied him a fair trial. The joint trial would have denied Ayala a fair trial if one of the following situations were present: (1) where the core of each defense is in irreconcilable conflict with the other, (2) where the defendant in question is prevented from introducing evidence that would have been admissible in that defendants separate trial not involving other defendants, and (3) where evidence damaging to the defendant in question is admitted and it would not have been admissible in that defendants separate trial not involving other defendants.
State v. Timas, 82 Hawaii 499, 511, 923 P.2d 916, 928 (App. 1996). "The defendant has the burden of proving a denial of a fair trial." Id. Upon review of a motion to sever, the appellate court "may not conclude that the defendant suffered prejudice from a joint trial unless it first concludes that a defendant was denied a fair trial. What might have happened had the motion for severance been granted is irrelevant speculation." Id. at 512, 923 P.2d at 929 (ellipsis and brackets omitted).
Ayala argues that the first two situations apply to this case.10 First, although the defendants defenses differ, they are not irreconcilable. Unlike Walton, where both the prosecution and Waltons co-defendant asserted that Walton stabbed the victim, State v. Walton, 133 Hawaii 66, 86, 324 P.3d 876, 897 (2014), this is not such a case. According to Ayala, Hinebaughs defense was that "[CW]s abandonment instilled the hatred of Hinebaugh that led to the assault" while Ayalas defense was that "he did not harbor such ill will or hatred towards [CW.]" However, that each had different motivations for their participation did not render their defenses irreconcilable. As Hinebaughs counsel succinctly stated, Ayala and Hinebaughs defenses were not inconsistent, but, rather, inconvenient.
Regarding the limitation of evidence, Ayala rests his argument for severance solely on his inability to introduce evidence of Hinebaughs juvenile conviction. As discussed, supra, the Circuit Court properly excluded the evidence of the conviction on relevance grounds, and separate trials would not have transformed the evidence from irrelevant to relevant. We hold that Ayala was not denied a fair trial by Circuit Courts denying his motion for severance.
3. The Circuit Court properly instructed the jury on Assault in the First Degree.


The United States Supreme Court decided earlier this year that a 1957 opinion is still valid and still limits venue choices for patent infringement actions under 28 U.S.C. § 1400. See TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. ___ (2017) (citing Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226 (1957)). In its extensively covered TC Heartland decision issued in May, the Court held that “[a]s applied to domestic corporations, ‘reside[nce]’ in § 1400(b) refers only to the State of incorporation,” where the accused infringer has a “regular and established place of business” in the venue. While framed as merely confirmation of precedent from the 1950s, many practitioners and commentators viewed this decision as a dramatic change in the patent litigation landscape.
Since TC Heartland came down, lower courts have applied the new paradigm in differing ways. As trends have developed in recent months, we thought it useful to provide a sampling of the various approaches to venue issues post-TC Heartland. These issues include, for example, whether defendants who did not contest venue prior to the TC Heartland decision waived the defense of improper venue because the case was—or was not—an “intervening change” in the law, and how to assess whether a defendant has regular and established place of business in a particular venue.
As to the waiver issue, an Arizona district court recently allowed the defendant, Cree Incorporated, to amend its answer and transfer the case to North Carolina where Cree is incorporated. See OptoLum Incorporated v. Cree Incorporated, No. CV-16-03828-PHX-DLR, 2017 U.S. Dist. LEXIS 114717, at *12 (D. Ariz., July 24, 2017). The plaintiff, OptoLum Incorporated, argued that Cree waived its defense of improper venue because Cree omitted the defense in its answer to the complaint and its initial motion to dismiss. However, Cree argued that the defense of improper venue was not available to it before the TC Heartland case issued. The court agreed that Cree did not waive the venue defense because “TC Heartland changed the venue landscape… For the first time in 27 years, a defendant may argue credibly that venue is improper in a judicial district where it is subject to the court’s personal jurisdiction but where it is not incorporated and has no regular and established place of business.” Id. at *9-10 (quoting Westech Aerosol Corp. v. 3M Co., No. C17-5067-RBL, 2017 U.S. Dist. LEXIS 95768, 2017 WL 2671297, at *2 (W.D. Wash. June 21, 2017)). Further, the court rejected the opposite holding in at least eight recent cases from California and Texas (among other jurisdictions). See OptoLum, 2017 U.S. Dist. LEXIS 114717, at *5 (distinguishing Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 2:15cv21, 2017 U.S. Dist. LEXIS 90728, 2017 WL 2556679, at *3 (E.D. Va. June 7, 2017); Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, 2:15-CV-00037-RWS-RSP, 2017 U.S. Dist. LEXIS 94495, 2017 WL 2651618, at *20 (E.D. Tex. June 20, 2017); iLife Techs., Inc. v. Nintendo of Am., Inc., No. 3:13-cv-04987, 2017 U.S. Dist. LEXIS 98698, 2017 WL 2778006, at *5-7 (N.D. Tex. June 27, 2017); The Chamberlain Grp., Inc. v. Techtronic Indus. Co., No. 16-C-6097, 2017 U.S. Dist. LEXIS 107955 (N.D. Ill. June 28, 2017); Amax, Inc. v. ACCO Brands Corp., No. 16-10695-NMG, 2017 U.S. Dist. LEXIS 101127, 2017 WL 2818986, at *2-3 (D. Mass. June 29, 2017); Infogation Corp. v. HTC Corp., No. 16-cv-01902, 2017 U.S. Dist. LEXIS 103645, 2017 WL 2869717, at *4 (S.D. Cal. July 5, 2017); Navico, Inc. v. Garmin Int'l, Inc., No. 2:16-CV-190, 2017 U.S. Dist. LEXIS 106461, 2017 WL 2957882, at *2-3 (E.D. Tex. July 11, 2017); Reebok Int'l Ltd. v. TRB Acquisitions LLC, No. 3:16-cv-1618-SI, 2017 U.S. Dist. LEXIS 109576, 2017 WL 3016034, at *3 (D. Or. July 14, 2017)). The Arizona court concluded that TC Heartland was a “sea change” regarding venue in patent law and granted the transfer motion.
Beyond this rift on the question of waiver, Chief Judge Leonard Stark in the District of Delaware recently issued two interesting opinions regarding how to assess whether a defendant has a regular and established place of business in a venue. In one, he transferred the case due to improper venue and, in the other, he ordered further discovery to better inform the decision. Boston Scientific Corp. and Boston Scientific Scimed, Inc. v. Cook Group Inc. and Cook Medical LLC, C.A. No. 15-980-LPS-CJB (D. Del. Sept. 11, 2017); Bristol-Myers Squibb Co. and Pfizer Inc. v. Mylan Pharmaceuticals Inc., C.A. No. 17-379-LPS (D. Del. Sept. 11, 2017).
In Boston Scientific, the court concluded that a company must have a “regular and established place of business… through a permanent and continuous presence” in Delaware. Chief Judge Stark reasoned that venue is improper when a company is only “registered to do business here, or only maintains a website that is accessible in Delaware, or simply ships goods to unaffiliated individuals or third-party entities here.” The court further reasoned that the defendant’s contacts did not amount to a regular and established place of business because it lacked physical facilities in Delaware, corporate offices or employees in Delaware, and its sales representatives did not live in Delaware. In Bristol-Myers Squibb, Chief Judge Stark ordered further discovery because he was unable to determine whether the defendant had a “regular and established place of business” in Delaware. He applied the same reasoning as in Boston Scientific regarding establishing a place of business in Delaware. Here, CJ Stark reasoned that defendant’s business model includes a large amount of litigation that is based in Delaware, which could count as a place of a business. However, he did note that defendant did not have a “regular and established place of business” in Delaware, and could not make a final decision until discovery is taken on defendant’s activities.
Although the Federal Circuit has not yet been asked to resolve the waiver question, practitioners now have its three-prong test for assessing venue. This provides much needed guidance on the selection of venue as a plaintiff, or whether to advance an improper venue defense and move to dismiss on this basis as a defendant. We will keep you posted as more updates become available.


This student voting guide explains the laws for the state of Kansas.
This student voting guide explains the laws for the state of Kansas. If you wish to vote from your school address, check the student voting guide for the state in which you attend school. If you are interested in casting an absentee ballot in your home state, check the student voting guide for that state.
Registration forms are available for download here. Online registration is available here for eligible voters with a Kansas driver’s license or a nondriver’s identification card.
The voter registration deadline is 21 days before Election Day, and if you mail your form, it must be postmarked by that date. In Kansas, you are able to register to vote if you will be 18 by the next general election, but you cannot vote in an election before you turn 18.
You can register in person, by mail, through a voter registration agency, or by other delivery to a county election officer. You can also register to vote online if you have a Kansas driver’s license or a Kansas nondriver’s identification card.
As of August 2014, Kansas has adopted a dual voter registration system. Under this system, if you register to vote using the state’s voter registration form, you will have to provide documentary proof of citizenship and will be permitted to vote in elections for both state and federal office. If you register to vote using the National Voter Registration Form, you will be permitted to vote only for federal offices. Acceptable citizenship documentation includes a birth certificate, United States passport, naturalization documents, and Bureau of Indian Affairs cards, among other forms. If you were registered to vote in Kansas prior to the implementation date of January 1, 2013, you are not required to resubmit evidence of citizenship. Proof of registration from another state is not a sufficient form of United States citizenship.
In Kansas, your voting residency is determined by the address to which you intend to return after being away. For many years, Kansas law has recognized that people have the right to change their residency address, either temporarily or permanently. Intent to become a resident of Kansas is the key factor in establishing residency.
At School. Students should have no trouble establishing voting residency in Kansas if they have a present intention to remain at their Kansas school address for the time being and they intend to make it their principal home. Any other interpretation of the residency laws is unconstitutional. Voting in Kansas may be a declaration of residency, potentially making you subject to other laws that govern state residents.
At Home. Students who lived in Kansas prior to attending school and who wish to establish or keep voting as a Kansas resident (i.e., from their parents’ Kansas address) should be able to do so, unless they have already registered to vote in another state. Kansas allows students to keep their voting residency even if they move out of the county or state to attend school. The only way you will lose this residency is if you “abandon” it by asserting residency in a new state. While registering to vote in another state is not automatically considered an abandonment of your Kansas residency, some judges or officials might view it as such. If you have established residency in another state and are moving back to Kansas with the intent to reside here, you will have to follow the normal registration procedures to re-register to vote in Kansas.
Challenges to Residency. If an election official refuses to register you on the basis of your residency, you can challenge that denial “in the district court of the district in which the county election officer is located.” On Election Day, only official poll workers can challenge your eligibility to vote on the basis of your residency. You will be asked to vote by provisional ballot, which may be counted at the discretion of the county board of canvassers.
A public assistance ID card issued by a municipal, county, state, or federal government office or agency.
If you are unable to provide a current and valid photo ID at the polls you can vote by provisional ballot. The provisional ballot will only be counted if you bring a current and valid photo ID to the county election officer in person or provide a copy by mail or electronic means before county officially tallies the election results (usually within three or five days after an election).
Any Kansas voter may vote absentee through the use of an “advance ballot.” You may apply for an advance ballot either by mail or in person at the election office. Blank applications are available here.
Your application for an advance ballot must be received, by mail or in person, by the last business day on the week before Election Day (typically, the Friday before Election Day). If applying by mail, you will be asked to provide identification. You can give your current and valid Kansas driver’s license number or nondriver’s identification card number and if you do not have either you can include a photocopy of any other valid photo ID (see above) with your application. Your county election official must receive your completed ballot by the close of polls on Election Day, either in person at county election office or by mail.
You may vote in person at your county election office, or any satellite voting site set up by your county. While all counties offer early voting starting the Tuesday before Election Day, some counties allow early voting sooner.  All voters voting at the polls, whether early or on Election Day, will be asked for Photo ID.
You should contact your local elections office for locations and hours of early voting in your area.
 Kan. Stat. Ann. § 25-2311(e).
 Kan. Stat. Ann. § 25-2306.
 Id. Proof of U.S. Citizenship for Voter Registration, Kansas Sec’y of State, http://www.gotvoterid.com/proof-of-citizenship.html (last visited Aug. 1, 2014).
 Kan. Stat. Ann. § 25-2309(o).
 Kan. Stat. Ann. § 25-407.
 Parker v. Corcoran, 128 P.2d 999, 1003 (Kan. 1942).
 Kan. Stat. Ann. § 25-2322.
 Kan. Stat. Ann. § 25-414(a).
 Kan. Stat. Ann. § 25-409.
 Kan. Stat. Ann. § 25-2908(b).
 Kan. Stat. Ann. § 25-2908(h); Valid Photo IDs, Kansas Sec’y of State, http://www.gotvoterid.com/valid-photo-ids.html (last visited Aug. 1, 2014).
 Kan. Stat. Ann. § 25-2908(d).
 Kan. Stat. Ann. §§ 25-2908(d); 25-409(b); 25-3104.
 Kan. Stat. Ann. § 25-1122(a).
 Kan. Stat. Ann. § 25-1122(f).
 Kan. Stat. Ann. § 25-1132.
 Kan. Stat. Ann. § 25-1122(g).
 Kan. Stat. Ann. § 25-1122(b).


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Linda Brown Thompson was 76 years old when she died on March 25, but many best know her as the nine-year-old girl who caused desegregation across America through the Supreme Court case Brown v. Board of Education.
This quote displays the intersection between the Brown V Board of Education case and the 14th amendment. | Courtesy of Wikimedia commons.
In 1951, her father, Oliver Brown, tried to enroll her at Sumner Elementary School near their Topeka, Kansas, home. When the school denied her enrollment because of the color of her skin, her father sued the Topeka Board of Education in seek of equality.
Although she was black, Thompson lived in an integrated neighborhood where she grew up playing with her white friends. She would watch as they walked seven blocks to Sumner, while she walked six blocks in the other direction before catching a bus and walking another mile to reach the black school she attended.
After the infamous Plessy v. Ferguson case in 1896, which allowed for racial segregation under the guise of separate but equal, education in the South was strictly separate but clearly unequal.
School systems invested in education for whites while neglecting resources and attention for black schools. While white students spent their days in clean, well-kept institutions with new books and equipment, black students endured rundown, overcrowded schools stocked with hand-me-down books in poor condition.
She was not the first black child denied enrollment at an all-white elementary school. Four other black families across America had also gone to court to sue the education system for turning away their children. Those cases included: Bolling v. Sharpe in D.C.; Briggs v. Elliot in South Carolina; Gebhart v. Belton in Delaware; and Davis v. County School Board of Prince Edward County in Virginia.
With the help of 12 other families in their neighborhood and local NAACP attorney Charles Scott, Brown filed a lawsuit against the school district in federal court.
In 1952, the Oliver L. Brown et. al v. Board of Education of Topeka case was appealed to the Supreme Court. With Oliver Brown being the lead plaintiff, the court combined the five cases from Delaware, Kansas, South Carolina, Virginia and Washington, D.C., into a single case, which became known as Brown v. Board of Education.
Brown v. Board of Education of Topeka, Kansas, was decided on May 17, 1954, when U.S. Supreme Court Justice Earl Warren delivered the unanimous ruling that segregated public schools violated the 14th Amendment.
Because of her father’s demand for equal education for his child, Thompson changed history the day she first walked the hallways of Sumner Elementary, striking down the notion of separate but equal and making it possible for every child to attend whichever school they wanted, regardless of their skin color.
America will never learn from its mistakes if we continue to ignore the truth about our history. Instead, we should recognize how the stories of discrimination, white supremacy and oppression are still prevalent today despite the boundaries we have overcome.
By honoring and learning from those who have paved the path for progress, we can create a future where racism and bigotry are no more.

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Appeal from the County Court of Albany County (Keegan, J.).
The central issues presented on appeal in this criminal matter are whether defendant's convictions of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the second degree are supported by legally sufficient evidence. Both of the challenged convictions stem from a January 1991 investigation by the City of Albany Police into narcotics activity at an apartment located at 24 Lexington Avenue in the City. In furtherance thereof, a confidential police informant was sent to the apartment on January 9 and 18, 1991 to purchase narcotics. On both occasions, the informant did in fact purchase a quantity of crack cocaine from the tenant, Marsha Jones, and her boyfriend, Butchie Kornegay. While defendant was not present at the time of either sale, based upon information received from the informant and neighbors, it was believed that an organized drug-selling operation was being conducted from the apartment and that it was run by defendant, a New York City resident, who supplied Kornegay, Jones and Karmen Johnson, who was defendant's girlfriend, with the crack and gave them some for their own use in return for their sales efforts. In due course, police obtained a search warrant for the apartment and waited until defendant was present to execute it. Upon his arrival, he was placed under arrest along with Kornegay, Jones and Johnson.
Shortly after her arrest, Johnson advised police that she had rented a certain motel room at defendant's request and that drugs and drug paraphernalia belonging to defendant were present there. A subsequent search of the motel room, performed with Johnson's consent, revealed a suitcase under the bed which Johnson indicated belonged to defendant. Contained in it were defendant's passport, Social Security card, some of his clothing and jewelry, money, crack and various items of drug paraphernalia including pipes, a scale and several distinctive drug containers disguised on the outside to appear as beer, oil or shaving cream cans but whose tops screwed off revealing an empty area within. Just outside the suitcase a fake oil can with a screw off top was found containing more crack. In all, approximately three ounces of crack were seized.
Ultimately, defendant was indicted on six drug-related offenses. The criminal sale of a controlled substance in the third degree conviction challenged on appeal related to Jones' January 18, 1991 sale of crack to the confidential informant. Inasmuch as defendant was not present at the time, his culpability was predicated upon the theory that he supplied Jones with the drugs she sold and thus intentionally aided her in committing the crime within the meaning of Penal Law § 20.00. The criminal possession of a controlled substance in the second degree conviction related to the narcotics seized from the motel room and proceeded on the theory that defendant had constructive possession of the crack found there. Kornegay, Jones and Johnson eventually pleaded guilty to the charges brought against them and, in return for leniency, agreed to cooperate in defendant's prosecution. With the aid of their testimony at trial, defendant was found guilty of the challenged crimes and now appeals.
Penal Law § 20.00 renders one liable for the criminal conduct of another when, "acting with the mental culpability required for the commission thereof, [the former] solicits, requests, commands, importunes, or intentionally aids [the latter] to engage in such conduct".
With regard to the criminal sale of a controlled substance in the third degree conviction, defendant contends that the testimony of Jones, a conceded accomplice who implicated defendant as the supplier of the crack, was not sufficiently corroborated (see, CPL 60.22). We disagree. It is now well established that evidence corroborating an accomplice's testimony need only connect the defendant to the crime so as reasonably to satisfy the jury that the accomplice is telling the truth (see, e.g., People v. Moses, 63 N.Y.2d 299, 305-307; People v. Donovan, 59 N.Y.2d 834, 836). Here, there was independent evidence establishing not only that defendant was present at the apartment, which obviously was the headquarters of an ongoing criminal enterprise, on two occasions within 12 hours of the time he arrived in Albany (cf., People v. Moses, supra, at 307-308), but police testimony that a distinctive fake beer can, identical to those found in defendant's suitcase and used for storing drugs, was found at the apartment as well as evidence that the crack vial sold to the confidential informant was the same size and length as the 491 crack vials also found in defendant's suitcase. Significantly, when advised that he was under arrest as he was proceeding up to the apartment, defendant fled into the apartment and headed directly for the bathroom where the sound of running water was heard. Based upon a review of applicable precedent, we are satisfied that the cumulative effect of this evidence is sufficient to satisfy the corroboration requirements (see, supra; People v. Bey, 179 A.D.2d 905, lv denied 79 N.Y.2d 918; People v. Bolden, 161 A.D.2d 1126, lv denied 76 N.Y.2d 853; cf., People v. Lanza, 83 A.D.2d 714 [Mikoll, J., dissenting], revd on dissenting mem below 57 N.Y.2d 807).
Turning to the criminal possession of a controlled substance in the second degree conviction, we find that the People's evidence regarding defendant's constructive possession of the narcotics found in the motel room, namely, the testimony of Johnson and Kornegay that the suitcase where it was found belonged to defendant, accompanied by independent testimony establishing that defendant had occupied the motel room the night before and day of his arrest along with the fact that the crack was found in a suitcase that contained defendant's passport, Social Security card, jewelry and clothing, is sufficient, when viewed in a light most favorable to the People, to establish that defendant exercised dominion and control over the location where the drugs were seized (see, e.g., People v. Watson, 56 N.Y.2d 632; People v Vega, 175 A.D.2d 932, lv denied 79 N.Y.2d 954; People v. Lopez, 112 A.D.2d 739; People v. Cicero, 106 A.D.2d 901, appeal dismissed, cert denied 472 U.S. 1003). Finally, upon exercise of our factual review power we are satisfied that the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
We have reviewed defendant's remaining contentions, including those raised in his pro se brief, and find them to be without merit or unpreserved for review.
Weiss, P.J., Mercure and Casey, JJ., concur. Ordered that the judgment is affirmed.


Must a defendant exhaust all administrative remedies under Government Code §501.0081 prior to an application for habeas corpus alleging that the judgment failed to credit him for time served prior to a sentence being imposed?
No. Under §501.0081 an inmate cannot file an application for a writ of habeas corpus for a “time-served credit error” until he has a written decision from the highest authority in the resolution system. However, a “time-served credit error” does not include an error in the judgment that fails to credit time served before a sentence was imposed. Because the resolution system in the Department of Criminal Justice has no authority to modify an incorrect judgment, an inmate is not required to exhaust all the administrative remedies under §501.0081. However, an application for a writ of habeas corpus for an incorrect judgment may still be dismissed as the proper remedy is to seek a nunc pro tunc judgment or writ of mandamus. Read.
This decision is helpful primarily for reaffirming that time-credit issues should be addressed by a motion for a nunc pro tunc judgment or a petition for a writ of mandamus. Refer to this decision if the defendant attempts to get the issue addressed by way of petition for a writ of habeas corpus.
When considering evidence of serious bodily injury, should the effects of medical treatment received by the victim be considered?
No. Injuries should be assessed as they were inflicted by the defendant, not as they existed in an improved condition after medical treatment. Serious bodily injury is defined as an injury that “creates a substantial risk of death,” and that risk must be assessed as it was caused by the defendant, not the risk after intervening medical treatment. Read.
This should be a very helpful decision. There has been some inconsistency in how the court has treated the serious bodily injury issue in the past. The court disavowed one of the leading decisions that urged consideration of medical treatment as a means of suggesting that a defendant did not inflict serious bodily injury. If you have what some might consider a “close case” on whether serious bodily injury was inflicted, read this decision to see how the testimony was developed. The State did a great job at trial in presenting testimony that would support a finding of serious bodily injury.
What is the standard for determining prejudice when a defendant’s attorney is deficient in failing to advise the defendant about deportation consequences of a guilty plea?
According to Padilla v. Kentucky, 559 U.S. 356 (2010), trial counsel must adequately advise a defendant regarding presumptively mandatory deportation consequences of a guilty plea. However, to succeed on an ineffective-assistance-of-counsel claim, a defendant must also show that he was prejudiced by this failure. The defendant must show a reasonable probability that counsel’s errors affected the outcome of the plea proceedings and that but for counsel’s errors, the defendant would have rejected the plea and instead pursued a trial. The defendant is not entitled to a presumption of prejudice. Read.
At some point, the United States Supreme Court is going to need to revisit Padilla because deportation consequences are not nearly as “mandatory” or “automatic” as the federal statutes might suggest. But Padilla is still the law, and this is a good case dealing with that issue. In the typical case, like this one, the defendant is able to prove that his defense lawyer at trial gave insufficient advice. But in the typical case, like this one, the defendant is also not able to prove that, if he had been fully advised, he would not have pleaded guilty but would have instead pleaded not guilty and insisted on going to trial. Defendants still have to prove that second part of the ineffective assistance of counsel claim to prevail.
Is reformation of a conviction required when the factfinder found every element needed to convict the defendant of a lesser-included offense, and the evidence presented at trial was sufficient to support a conviction of that lesser-included offense but not the greater offense?
Yes. A judge in a bench trial initially found the defendant guilty of tampering with evidence by destruction. The evidence was not sufficient to confirm the destruction of the evidence so the judgment should be reformed to the lesser-included offense of attempted tampering with evidence. Because the judge found the defendant had the intent to destroy or impair the use of evidence, he necessarily concluded the defendant had the specific intent to conceal the evidence. The Court noted that it is not broadly applying the principle that in every case where the factfinder determines the defendant had intent to cause a specific result there will also be specific intent to commit the act. Read.
As tampering with evidence cases go, this decision may not be that helpful because the Court of Criminal Appeals had already made clear in a prior decision in this case that the defendant probably should have been charged with “concealing,” not “destroying.” But this decision could be quite helpful if you are prosecuting a defendant for an attempt to commit a crime that requires an act (as opposed to an omission or possession). As it says, the court does not make a broad holding, but its analysis would apply to all but the “uncommon” (the court’s word) cases.
Does a previous administrative hearing concerning a defendant’s employment trigger double jeopardy or collaterally estop a felony prosecution?
No. The defendant in this case was a state employee who was fired from his job under Texas Administrative Code, chapter 40, §3.301. He filed an employment grievance with the Department of Health & Human Services, and an administrative law judge found allegations of abuse unconfirmed and ordered the defendant’s employment reinstated. The defendant was then indicted for injury to a disabled individual under Penal Code §22.04. The court of appeals determined that collateral estoppel should not apply because the administrative hearing did not involve the “same party or party in privity” as a criminal proceeding and did not represent the interests of the district attorney. Additionally, double jeopardy is not implicated because the HHS hearing was not “essentially criminal” in nature. Read.
Such issues may come up rarely, but refer to this decision if a defendant raises a collateral estoppel argument based upon a previous administrative decision based upon the same facts. This is a very thorough and well-reasoned treatment of that area of the law.