The By-laws: A Time for Change?

By J. Gary Trichter
President-Elect

Thomas Jefferson, in a letter to Samuel Kercheval, dated July 12, 1816, said:

“I am not an advocate for frequent changes in the laws and

constitutions. But laws and institutions must go hand in hand
with the progress of the human mind. If that becomes more
developed, more enlightened, if new discoveries are made, new
truths discovered and manners and opinions change with the
change of circumstance, institutions must advance also to keep
pace with the times. We might as well require a man to wear still
the coat which fitted him when a boy as civilized society to
remain ever under the regime of their barbarous ancestors.”

Like Jefferson, I am not an advocate of frequent or unnecessary change. Indeed, I realize there
is a natural tendency within us to resist change. Jefferson realized that change would become necessary
as circumstances changed enough and the people learned about the shortcomings of their laws and
institutions. Fortunately, we within TCDLA, have not had “barbarous ancestors” that our third
president references, however, we have had a period of electronic growth and transition that now
requires that we look at TCDLA today in a far different way than we looked at it 2 or 4 decades ago.
For your information, when I became President-Elect, it was not my intention to tinker with the by-
laws. However, as I became confronted with issues related to the by-laws that are now in issue, I saw a
need to change them. Like President Bill Harris has said in his commentary opposing these by-law
changes, I do not think that our by-laws “need to be amended lightly. Accordingly, I am proposing the
following by-law changes only because they are necessary and that we would be wise to do so. My
reasons for each suggested change follows that particular section.

ARTICLE VII - BOARD OF DIRECTORS

Sec. 2. Executive Committee. The Executive Committee shall consist of the officers of the Association, the editor of
the VOICE for the Defense, and up to six members of the Association two members of the board of directors members
of the appointed by the President. Of the appointed members of the Association, at least half shall be members of the
Board of Directors. Each membership area designated in Section 11 of Article III shall be represented on the
Executive Committee. The Executive Committee shall have such powers and duties as are provided in these bylaws
and as may be prescribed by the Board of Directors. The Executive Director is a non-voting member of the Executive

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Committee.
[Amendment approved at annual membership meeting June 6, 2009]

Section 2 Commentary: Many of you may not know exactly what the Executive Committee does,
its powers, and its history. In my view, the Executive Committee is akin to the cabinet for a
sitting United States President. The Executive Committee is an advisory board and has no power
other than to make recommendations (see Article X, Section 2*). At present, the Executive
Committee is made up of our six officers, the Editor of the Voice, the Executive Director and two
board members (11). The executive committee meets at the pleasure of the President. Under
President Harris it generally met weekly through use of telephone conference calls, also, on the
morning of any board meeting.

For your information, the Executive Committee used to be much larger. Indeed, it was
comprised of the officers, editor, executive director and a board member from each of the 14
districts (21). The idea of having a member from each district was so that the Executive
Committee would be more representative of our organization. Regrettably, technology was not
up to the task to allow for such a large body of people to work well together on a telephone call.
That said, the size of the committee was amended from 14 board members to 2 because of the
realization that technology was not sufficient to do business.

Technology has made huge jumps since the amendment in 2009. As such, the technology today
can easily handle a larger group. Without question, it can handle a group of 14 which is what I
propose for my Executive Committee. We will be using video conferencing for our meetings. In
regard to the proposed Executive Committee, it is my vision that the president should have the
discretion to choose his advisors that he/she thinks will not only give could counsel, but also, will
work on tasks that will benefit TCDLA. Here, I also ask you to recall that all the members of the
Executive Committee volunteered to work for TCDLA, and, my proposal gives me 4 additional
workers to advance the interests of our association. Moreover, I believe that we should not forget
where we come from and who TCDLA is. That said, I think TCDLA is the membership and for
that reason I have proposed that two regular members of our association serve on the Executive
Committee. Also, to keep a historical perspective, I propose that two past presidents serve on the
committee. And finally, to keep things current I want to keep two board members on the
committee. Having these six volunteers serve on the committee will help me to be a better
president and will help TCDLA be more efficient at no additional cost.

[* Sec. 2 “As a matter of discretion, when the President determines it necessary to make a
pronouncement or declaration of policy, and where circumstances do not reasonably permit a
meeting or poll of the Board of Directors, then after obtaining the consent of a majority of the
Executive Committee he or she may make said pronouncement or declaration.”]

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Sec. 5. Vacancies. A vacancy occurring in the Board of Directors caused by the death, resignation, or removal of the
person elected thereto may be filled by appointment of any eligible member by the President, subject to confirmation
by the Board of Directors. The president shall give preference to those eligible members who have most recently
applied for a board or associate board position. Further preference shall be given to those applicants who are either
from the same district where the vacancy exists or where a district is under represented. The president can nominate
any other member to fill a vacancy after the applicant preferences and pool have been considered.

Confirmation shall be secured at the option of the President either by a majority vote of a quorum of the directors or by
a poll of the directors. by a quorum of the directors so long as each director received ten days notice of the vote. The
failure of any director to send in his or her their vote within ten days after the date the poll is placed in the mail to him or
her shall NOT be counted as a vote for confirmation. For quorum purposes, a director may choose to abstain from
actually voting by timely sending in a vote of abstention.

Section 5 Commentary: This proposed revision is to fulfill a promise that we make to candidates
who volunteer for service on the board that their efforts in applying will not be in vain. Here, is
my belief that when a vacancy occurs that we should look to those who applied for service prior
to looking elsewhere. This proposal does not mean that a more qualified person cannot be chosen
after a preferential examination has been made of the prior applicants.

The proposal also prevents a member from being appointed to the board where there is not a
majority of support of the voting directors. For example, the old law provides for default votes in
favor in the person where a director has not voted. Hypothetically, we have 93 eligible votes that
can be cast in such a confirmation. Under the present rule it is entirely possible that only 46 votes
could be sent in, that all 46 votes would be against the President’s choice (with none being made
in support of the President’s choice) and yet, that number still be confirmed because of the
affirmative default vote rule. In my view there is something really wrong with a process that
allows any person to fulfill any officer or director position by default. Either a person should be
confirmed by real votes or they should not be confirmed.

ARTICLE IX - ELECTIONS

Sec. 2. Nominations Committee. Prior to January 31st of each year, the President-Elect shall appoint a Nominations
Committee consisting of all officers and at least one member but no more than three members from each of the
Association’s membership areas and all officers. Past-presidents may be appointed to the committee but shall be non-
voting members. The President-Elect will also chair the Nominations Committee. shall be designated by the President.
The Nominations Committee shall meet, and the members present shall select its nominee(s) for those positions in the
Association that which are open for election or reelection. The chair of the Nominations Committee shall report in
writing on or before 90 days prior to the next annual meeting all said nominee(s) for each such position to the
President, the Board of Directors, the Executive Director, and the editor of the VOICE for the Defense magazine.

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Association members shall be given notice in writing of the nominee(s) for each such elective position on or before 75
days prior to the next annual meeting. Such notice may be by publication in VOICE for the Defense and shall also
advise the membership that any qualified member in good standing may seek election for the position as an officer,
other than President, director, or associate director of the Association by following requisites of Article IX Section 3(b)
of the Bylaws. Any disputed questions regarding an election shall be resolved by those members in good standing
who are present and voting at the annual meeting.

[Amendment approved June 28, 2008, TCDLA Annual Meeting, San Antonio, Texas.]

Section 2 Commentary: This section concerns itself with the make-up of the nominations
committee. My purpose in suggesting a discretionary increase in the nominating committee
members for a particular membership area is to provide a greater opportunity for the committee
to have personal information about the board candidates. This year TCDLA had to fill 38 board
slots and 1 officer position. To do so, it had to consider 49 applicants for those positions. No
member of the nominating committee knew all the applicants. If the mission of the nominating
committee is to make fair and informed candidate selections, then it seems logical that the
nominating committee members should have the best opportunity to have more knowledge about
each respective candidate. This is especially true in largely populated areas where many
candidates apply. Having additional nominating committee members, from a particular district,
there is an increased probability that additional information will be available to make more
informed decisions. It is my belief that an informed vote is better than one made on a gut feeling
or a guess.

President Harris has suggested that allowing for a discretionary increase in nominating
committee members might allow a president-elect to load up a district which would then be
unfair to other districts. Such a thought does not give very much credit to the president-elect.
Ironically, it can also be said that the failure to allow such an increase to a highly populated
district equally causes unfair representation. For example, District 2 only has 72 members while
District 14 has 453 members. Without addressing the obvious disproportionate numbers in terms
of representation (1 to 10), I think it is apparent that it is more difficult for a nominating
committee member from District 14 to personally know each member in his/her district as it
would be for a nominating committee member of District 2 to personally know the members of
his/her district.

And so, the purpose of this suggested change is to have more information available so that
informed decisions can be made in the selection of our board members.

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Sec.3. Nominations.
(a) A voting member may nominate a qualified member for an office or for director or associate Director from the floor
only if the Nominations Committee nominee is deceased, withdraws, or is otherwise disqualified.

(b) A qualified member who desires election as an officer, director or associate director of the Association may file a
petition to that effect. Such petition shall set forth the office sought and shall have attached to it the signed statements
of twenty (20) members who believe the petitioner is qualified for such office or directorship and will perform the duties
imposed by the office sought. Petitions for President-Elect shall also contain the statements of at least ten (10) officers
and/or directors in support thereof. A qualified member desiring to be elected to the office of President-Elect shall be
required to have an additional 30 signed statements of members who believe the petitioner is qualified for that office
and will perform the duties imposed by that office. Such petition shall not be required of those nominated by the
committee under Section 2 of this article. Petitions for election to an office, directorship, or associate directorship must
be delivered to the Executive Director at the main office of the Texas Criminal Defense Lawyers Association in Austin,
Texas, 50 days prior to the annual meeting.

Section 3b Commentary: Unless you have actually run as a candidate for president-elect, you
might not understand how difficult it was for me to secure ten qualification statements from
officers and/or directors of TCDLA. According to the present by-law, I only had to obtain a
statement and not an endorsement. The statement was required to only say that I was qualified
to run for this office and would perform the required duties of it. Surprisingly, I had numerous
board members say they felt uncomfortable signing for me even though they said I was both
qualified and would perform the required duties. Further, I had numerous board members say
that they would only sign if I could not find anyone else to do so. Also, I had numerous board
members say they didn’t feel right signing for me because I was running for office outside the
nominating process even though the by-laws provided for that process.

Needless to say, I was discouraged by the difficulty I had securing 10 signers that I had
presupposed had a fiduciary duty to sign off on an applicant who they believed to be qualified
and would perform the duties imposed by the office. Even though the present by-law did not
require an endorsement or a vote for the candidate they were signing for, many board members
were still reluctant to sign for fear of offending the nominating committee’s candidate and
present officer.

It is not debatable that the president-elect is elected by the membership and not by the board.
However, the present by-law allows board members to have an opportunity to disqaulify a
qualified candidate by simply not signing. My suggested change eliminates the potential for a
board member to be uncomfortable about endorsing a qualified candidate, and more
importantly, allows the membership to speak in a meaningful way. For your information, I

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requested each officer to sign a qualification statement and in most instances was told “no, I’m
uncomfortable with it” or “I need to be neutral.” Need I say more about being human?

The suggested by-law change requires not just 30 signatures to qualify as a candidate for
president-elect (the present by-law requires 20 members and 10 board members), but, requires
an additional 20 signatures which can be composed of regular members and/or board members.
Getting 50 signatures is not an easy task. Even though President Harris suggests that it would be
so if the candidate was from an urban area. I am troubled by this comment because it suggests
that 20 members of an urban area should not have a voice equal to 20 members of a rural area.
My belief is that each member’s voice ought to carry the same weight and that the board works
for the membership and not vice versa. In my view, 20 member signatures ought to have more
weight than 10 board members.

Sec. 4. Voting Procedure. Written ballots shall be mailed to members in good standing no later than 30 days prior to
the annual meeting. To be valid, ballots must be returned by the member and received by the Executive Director no
later than ten days before the annual meeting. Each member in good standing shall be entitled to one vote for each
contested race. The results of the voting shall be announced at the annual meeting.

(c) A member is disqualified to be an officer candidate where the member is either married to or has an intimate
relationship with a Texas Criminal Defense Lawyers Association or Criminal Defense Lawyers Project full time or part
time employee.

Section 3c Commentary: This suggested change is made for the purpose of operating TCDLA as
a professional business. This change is necessary to protect the other employees of TCDLA from
the staff member who is related to their boss, i.e., the officer. All business models say that this
type of relationship is troublesome and awkward for all those concerned. Indeed, our own lawyer
Boggins stated that such a practice created a conflict of interest for the officer involved. The by-
law change does not affect a present or future employee. Rather, it only will have an impact upon
an officer or an officer candidate.

Let’s talk real world now. Imagine if my wife was the assistant executive director and I was the
president of TCDLA. Now imagine that the assistant executive director is causing an employee
problem or not doing her work. Is it realistic that the other employees are going to comfortably
complain to me? To the executive director who works for me? The answers to these questions are
“no”!

President Harris talks about this suggested by-law being “an intrusion on the personal liberties of
our members”. Such is not the case. TCDLA is a business and we should run it in a professional
way.

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d) An officer becomes disqualified from office where the person has filed as a judicial candidate for the Texas Court of
Criminal Appeals. This disqualification will be valid only so long as either TCDLA or CDLP are financial grant
recipients or applicants.

Section 3d Commentary: There are at least two reasons to adopt this by-law change. First, an
officer who is running for a judicial office has already made a decision to leave TCDLA if he/she
is elected. It defies logic and common sense to allow this judicial candidate to run for TCDLA
office where they will resign if elected. If the resignation occurs, it will cause the officers to move
up the officer ladder. As such, it would leave a vacancy at the bottom of the ladder for an
appointment of a member who was not elected by the membership. To me, this allows the officer
desiring to be a judicial candidate to be the tail wagging the dog. Either the person wants to be
an officer of TCDLA or wants to be a judicial candidate, the member cannot be both.

The second reason for adopting this by-law change is to distance our organization from any
conscious or unconscious feelings, intentional or accidental, by those judges on the Texas Court of
Criminal Appeals. As you know, the CCA grant provides CDLP with over a million dollars that
we use in a very positive way to improve the quality of legal representation in Texas. Here, I
want to go on record saying that every judge on the Court of Criminal Appeals is an honorable
person, however, each one is human and can be subconsciously impacted by outside influences.
There is no good reason to create a negative influence that might adversely affect the grant or our
relationship with the CCA.

(e) In nominating Directors and Associate Directors, the Nominating Committee shall give preference to applicants
from TCDLA Districts that do not yet have a representative.

Section 3e Commentary: This by-law change is made for the purpose of creating a nominating
committee duty to give preference to TCDLA applicants from a district that does not yet have a
representative. This duty only requires that the committee take a first look at these applicants
before it looks elsewhere to fill a board slot. This proposed by-law will help keep TCDLA more
representative by district. In simple words, this by-law would be a constant reminder to the
nominating committee where it must first look to fill a slot before it can look elsewhere.

Sec. 4. Voting Procedure.

(a) Written ballots shall be mailed to members in good standing no later than 30 days prior to the annual meeting. To
be valid, ballots must be returned by the member and received by the Executive Director no later than ten days before
the annual meeting. Each member in good standing shall be entitled to one vote for each contested race. The results
of the voting shall be announced when the ballots have been counted and a winner determined, but in no event later
than at the annual meeting.

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Section 4a Commentary: The purpose of this by-law change is simply to announce the winner of
a contested race at the earliest possible time. There is no reason not to announce the winner
when we conclusively have one. Waiting only creates an opportunity for unnecessary
controversy. Announcing the winner in a timely fashion allows TCDLA and the respective
candidates to move on.

(b) If ballots are mailed, the envelope shall be clearly and conspicuously marked: “TCDLA Voting Ballot”. If e-mailed or
faxed, the “subject” or “Re:” line will be clearly and conspicuously marked “TCDLA Voting Ballot”. The ballot sent shall
have a place provided for the member to both print and sign their name. Only legible and signed ballots will be
counted. Members can return their ballots by mailing, faxing, or e-mailing them to the Executive Director.

Section 4b Commentary: This suggested by-law change came about because of the many
problems TCDLA experienced in our last election for president-elect. Unmarked envelopes were
sent out to our members. These envelopes looked like junk mail and many wound up in the
trash. Over 3,000 ballots when out, and yet, less than 1,300 came back. A great number of the
1,700 of the non-returned ballots most likely were accidentally trashed. Had the envelopes been
conspicuously marked, like the State Bar ballots are, I believe more votes would have been cast
and made our election results more representative of our membership’s desires.

We are in an age now where information is transmitted quickly by e-mail or fax. Information
sent this way is much cheaper than U.S. mail. Staying in the stone-age, i.e., U.S. mail, is clearly
less efficient and more expensive than using e-mail or fax. Jefferson described this type of
circumstance as requiring a man to still wear the coat he wore as a boy.

Most large bar organizations employ electronic balloting without any problems. We should
adopt a means of voting that is more efficient and less costly. President Harris fears that a lack of
security will be caused by electronic balloting, however, all ballots can be required to contain a
printed name of the member and a signed name of that member. Only legible signed ballots will
be counted under the new by-law. To my knowledge, no bar organization that has employed e-
mail or fax voting has reported a real security issue.

In closing, I invite your comments on these suggestions, President Harris and I have agreed to
disagree as friends on these proposed changes. We invite you to do the same. Let us have a well
thought out and reasoned discussion but not forget that we are all on the same team. Let us
discuss, debate, and then vote. Bill and I will both be happy with whatever result occurs.

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