San Antonio Lawyer, July/August 2020

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July–August 2020

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Among His Souvenirs

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contents ON THE COVER 10 Roy Barrera, Sr. Among His Souvenirs: Part I

By Steve Peirce

FEATURES 17 History of Probate Law History of Inheritance: Part II

By Harry L. Munsinger, J.D., Ph.D.

21 Practicing Law During a Pandemic Will Temporary Circumstances Catalyze Permanent Changes?

By Natalie Wilson

10 Roy Barrera photographed for San Antonio Lawyer by Martha Istueta

BAR BUSINESS

DEPARTMENTS

7

SABA Responds to Member and Community Demand Reliable, Clear, and Accurate Legal Information for Our Community in Crisis

6 Ref lexiónes

By Whitney Thomas

8 SABA Proud Essential Member Benefits and Expanded Opportunities Await

By Tom Crosley

23 Fourth Court Update

By Justice Irene Rios

24 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Charles Carter

By David Evans

July–August 2020

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San Antonio Lawyer 3

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OFFICERS / DIRECTORS President Thomas A. Crosley

Secretary Lawrence G. Morales, II

Directors Steve Chiscano Loraine Efron Nick Guinn Derek B. Hilley Donna McElroy Grant McFarland Patricia “Patty” Rouse Vargas Jaime Vasquez

Immediate Past President Santos Vargas

Executive Director June Moynihan

President-Elect David M. Evans Vice President Ty Sheehan Treasurer Dawn Finlayson

4 San Antonio Lawyer | sabar.org

STATE BAR / FOUNDATION State Bar of Texas Directors Marc E. Gravely Santos Vargas

San Antonio Bar Foundation Chair Tom Crosley

LOCAL BAR ASSOCIATIONS Mexican American Bar Association Ted J. Santos

Bexar County Women’s Bar Association Brittany Weil

San Antonio Young Lawyers Association Chris Mazzola

San Antonio Black Lawyers Association Bridgett Clay

July–August 2020

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San Antonio Lawyer 5

ReflexiÓnes You Can’t Always Get What You Want

By Tom Crosley, San Antonio Bar Association President

W hen I took the oath of office as your bar association president in August 2019, no one could have predicted the events that would unfold during this unprecedented year. Well, no one except perhaps the producers of the Netflix documentary series, Pandemic. That was eerily prescient, wasn’t it?

We began the bar year with our annual luncheon meeting at the Plaza Club. Texas Supreme Court Chief Justice Nathan Hecht was our keynote speaker, and we were blessed to have many distinguished guests and jurists from our legal community in attendance. In September, we had our bar foundation gala.

The theme this year, was British Invasion. This was a not-sosubtle nod to my affinity for late-1960s rock and roll. Guests could have their photo taken with the “Queen of England,” and there was an Abbey Road photo wall where many of us dorkily posed “walking” across the street in pantomime of the famous Beatles album cover. Perhaps coolest of all was the Beatles tribute band from Austin, and the fact that they let me open the night’s live music by playing guitar and singing lead vocals on Back in the U.S.S.R.!

In keeping with the British Invasion theme, the coronavirus pandemic happened. Corona means “crown” after all. Suddenly, I was singing (I Can’t Get No) Satisfaction. Yesterday all my troubles seemed so far away. And it was not just My Generation that was affected.

Rather than Paint It Black, your San Antonio Bar Association (SABA) board and staff sprang into action. We became the hub for information for our legal community. Working remotely, our Executive Director June Moynihan and staffers Ashley Benson, Camille Ayala, Irma Gutierrez, Sylvia Hernandez and Windy Phan rose to the challenge. We sent nearly daily emails with COVID-19 response court orders and government updates. We hosted webinars on remote-work tools, SBA loans, and court video conferencing. We even hosted a Texas-wide Zoom Law Day celebration with nearly 500 lawyers. Since mid-March, SABA has hosted 24 webinars with more than 3,000 people in attendance.

Our Bexar County judges have done a remarkable job of keeping the virtual doors of the courthouse open. In a matter of weeks, judges developed new operating plans. The Civil District Courts began having Zoom hearings on April 6 and the Criminal 6 San Antonio Lawyer | sabar.org

Tom Crosley photo by Mewborne Photography

District Courts and many County Courts have been open to meet emergency and essential needs.

One day things will return to normal, but the pandemic will have taught us how to work smarter. Many of us will have learned that we can competently attend depositions or meetings halfway across the country without ever leaving our offices (or homes).

We may have even learned how to more efficiently resolve our clients’ legal disputes.

SABA recently conducted a survey for the Civil Court Judges to collect feedback on the first sixty days of the remote courthouse operation plan. It was inspiring to see how quickly the San Antonio legal community adapted. Our colleagues are receptive and flexible. Our judges invite open communication and idea sharing. Our court staff has pivoted to remote work. SABA will continue to host Town Halls for the various benches to continue the open communications with the bar and to share ideas for the new version of “Open for Business.” If we did not notice before, communication is vital to our profession. We have become aware of how much information used to be shared in the courthouse hallways, during mediation breaks, and in CLE luncheons.

SABA aims to foster an atmosphere of open communication and information sharing during these challenging times.

While I am disappointed that we had to cancel our in-person CLE luncheons, our happy hours, and many other educational, social, and service-oriented events, I am encouraged that we have adapted and evolved. I hope that we will be able to continue to offer services via webinars even after the pandemic has passed.

In a previous president’s column, I wrote: “At our core, SABA is a diverse community of lawyers and judges built on fellowship, common goals, and a shared passion for the legal profession,” and I exhorted lawyers and judges to “work together to keep San Antonio the finest legal community in the State of Texas.” Our long-term goals have not been harmed by COVID-19. Rather, we have discovered new ways to be a valuable resource to our members.

Like the Rolling Stones song says, You Can’t Always Get What You Want, But If You Try Sometimes You Just Might Find You Get What You Need!

Bar Business

SABA Responds to Member and Community Demand Reliable, Clear, and Accurate Legal Information for Our Community in Crisis

By Whitney Thomas, Bexar Outreach Attorney

T

he San Antonio Bar Foundation is committed to the mission that all San Antonians have full and fair access to justice. The current state of affairs has highlighted how many of our San Antonio neighbors are vulnerable in times of crisis. In May, the San Antonio Bar Foundation responded to this emergency by creating the Bexar Community Outreach Project and hiring an Outreach Attorney to foster a new standard for community engagement.

ACCESS TO INFORMATION Expanded Public Resource Information

As our pandemic circumstances deepen, so does our reliance on sound online information.

The San Antonio Bar Association (SABA) has expanded its website with a dedicated For The Public landing page that provides reliable information and links to trusted resources such as TexasLawHelp.org and local pro bono providers. With the use of social media platforms and streaming tools, SABA is committed to developing more online and interactive content for the public.

Ask a Lawyer

This summer, SABA introduced the Ask a Lawyer series. Ask a Lawyer is a free, virtual community event held every Tuesday from 4 to 7 p.m. Volunteer attorneys answer legal questions and guide participants to additional resources, public agencies, or a referral to the Lawyer Referral Service.

ACCESS TO REPRESENTATION The economic consequences of the growing health pandemic have enhanced the divide between vulnerable populations and access to justice. The burden on pro bono agencies is increasing, and the majority of low-income residents do not meet the strict income limits to access pro bono services.

In response, SABA has created a modest-

Fielding questions outside of your practice area? We can help.

Refer those with legal inquiries to sabar.org/public.

The San Antonio Bar Association (SABA) has expanded its website with a dedicated For The Public landing page that provides reliable information and links to trusted resources. means registry within the SABA Lawyer Referral Service (LRS) program. LRS Attorneys who offer income-qualified service fees may opt in to be included in the modest-means registry to provide services to these populations.

SABA is here to serve our members and our community. SABA members interested in sharing ideas, volunteering to create online content, or learning more about the Bexar Outreach Project, please contact Bexar Outreach Attorney Whitney Thomas at whitneyt@sabar.org.

Whitney Thomas is a San Antonio native and an attorney at the Johnny W. Thomas Law Office, P.C., where she has a Probate, Estate Administration, and Bankruptcy practice. Ms. Thomas serves part-time as the Bexar Outreach Attorney for the San Antonio Bar Association.

July–August 2020

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bar business

SABAProud Essential Member Benefits and Expanded Opportunities Await

By David Evans, San Antonio Bar Association President-Elect W hy am I a San Antonio Bar Association (SABA) member? As a San Antonio attorney, I not only look to my professional association for resources, but I also value the opportunities it presents to connect with my peers and mentors, and to serve my community.

I depend on SABA to support and enhance my legal practice with essential news and updates, accessible and meaningful continuing legal education, and invaluable networking with everyone from the judiciary to the state legislature. As we work together towards a greater goal, we build incredible connections. SABA creates strong and lasting relationships with the community, connecting the economically disadvantaged with free or reduced legal fees through local resources, educating schools and businesses by providing legal presentations, and assisting with legal referrals.

I asked four of my fellow Bar members how SABA supports their practice and their success. Each unique perspective is as distinct as our city—and we welcome yours. We seek to add more voices and increase the strength of our SABA community with diverse and engaged members.

SABA is your trusted partner and provides four paramount benefits of membership. These benefits are crucial right now as we navigate the difficulties and opportunities presented by COVID-19.

SABA pledges to: • Inform – SABA members are the first to know; • Educate – SABA members have access to topical legal education; • Connect – SABA members expand their network, from peers to mentors with in-person and online events and leadership opportunities; and • Serve – SABA provides attorneys with vetted volunteer events and the public with easy-to-use resources to navigate their legal issues or hire a lawyer.

8 San Antonio Lawyer | sabar.org

INFORM I’ve been a member of the San Antonio Bar my entire legal career. SABA is the professional resource that I depend on to keep me up to date about events and news that affect my law practice. When government restrictions curbed regular courthouse business, SABA delivered to members critical and timely information about the courts, city, and business continuity. SABA keeps me informed. I’m a proud member of SABA, a trusted partner of San Antonio lawyers.

— Henry B. Gonzalez III, Gonzalez Chiscano Angulo & Kasson, PC

EDUCATE Out of law school, I worked in the nonprofit sector and as a prosecutor. When I decided to move to private practice, I took CLEs to broaden my knowledge. SABA Signature CLEs are a great way to learn about a variety of practice areas and to meet other attorneys and the local bench. I have deepened my proficiency in different practice areas through CLEs provided by SABA Sections. I’ve been in private practice for nearly twelve years, and now I also share my expertise as a CLE presenter. SABA is my first source for CLE. I’m a proud member of SABA, a trusted partner of San Antonio lawyers.

— Jaclyn Roberson, Roberson Duran Law, PLLC

CONNECT

JOIN

I have developed close professional connections and deep friendships through bar association events and while serving in leadership.

Managing a small, lean law office, my bar network understands the unique demands of a law practice, and we are supportive of one another’s wellness and success. Professional referrals are also my best source of new clients.

The San Antonio legal community is small and collegial—and SABA provides many avenues to expand my circle. I’m a proud member of SABA, a trusted partner of San Antonio lawyers.

Join our community of exemplary legal minds and enjoy these and other countless benefits of membership. We are SABA proud.

David Evans has been in private practice in San Antonio for 20 years. He has worked in a large international firm, a mid-sized local firm, and now as a sole practitioner. Evans has been involved in various bar organizations, and especially enjoys when our legal community comes together to help other organizations like Habitat for Humanity and Children’s Rehabilitation Institute Teleton.

— Chris Mazzola, Patterson Law Group

SERVE I became an attorney to help people. I sometimes field questions outside my practice area or help a student with general information. SABA is where I refer people for helpful information through the public resource website: People’s Law School and Ask a Lawyer. SABA also offers attorney volunteer opportunities. I appreciate that attorneys, new and experienced, have various ways to be of service in well-organized projects.

I’m a proud member of SABA, a trusted partner of San Antonio lawyers.

— Kristal Thomson, Langley & Banack, Inc.

HOW TO JOIN Visit sabar.org/join to complete a new membership application or renew your membership.

Questions?

Contact Membership Manager Camille Ayala.

SAN ANTONIO BAR ASSOCIATION 100 Dolorosa, Suite 500, San Antonio, TX 78205 (210) 227-8825 | camillea@sabar.org

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www.dslawpc.com

July–August 2020

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San Antonio Lawyer 9

Among His Souvenirs: Part I

By Steve Peirce Photo by Martha Istueta

10 San Antonio Lawyer | sabar.org

R

oy Barrera, Sr. stands at the top of the stairs in front of his office door to greet me for the first time. He’s wearing a suit, having been in court earlier that morning. Now ninety-three, he’s been practicing law since 1951, and he’s kept thousands of items of meticulously organized memorabilia of his storied life, which he is prepared to present, as if this legendary trial lawyer is about to make the ultimate closing argument. There are several jumbo-sized scrapbooks filled with newspaper and magazine clippings in chronological order, dating back to his high school days. There are photographs of family, friends, and colleagues, many of which are of professional quality taken by Roy’s late brother Gilbert, an award-winning newspaper photographer. There are striking photographs of horrific crime scenes from his criminal trials, too. And there are thick three-ring binders of congratulatory and thank-you letters from clients, judges, co-counsel and opposing counsel, politicians, clergy, academics, and friends of all stripes. His office walls display plaques, honors, awards, and souvenirs, each one with a story behind it.

He has the the cadence of a skilled raconteur, and one can’t help but notice he’s missing his left-hand ring finger. As he slowly begins to leaf through his scrapbooks and photos, providing his voiceover, I feel like I’ve walked into a Ken Burns documentary, and I’m overwhelmed.

There were so, so many tales told, and here are some of the best.

The Fateful Finger “My paternal grandfather was a Chilean Indian who immigrated to the U.S. through Mexico after his marriage to my paternal grandmother in Monterrey,” Roy says. “He used to tell me that the mind has absolute control over the body, so that if it’s too hot or too cold, you can ignore it, or if you’re thirsty or hungry, you can just turn it off in your mind.

He also said that the world isn’t going to give you anything; you have to go out and get it.

“My dad had a third-grade education. He worked hard, seven days a week. He worked in carpentry and mechanics, sold Singer sewing machines, and he later sold insurance. And years later, he worked as a grand jury bailiff and then an investigator for District Attorney Ted Butler. My mother was a great inspiration to me. She was the one who encouraged me to go to law school,” he says, his voice breaking.

Roy grew up in the middle West Side of San Antonio. His first job was at six years old, delivering pamphlets door to door. In junior high and high school, he worked for various shopkeepers, riding his bike from one shop to the other, often late into the night. The family took a stint in Seguin in 1935, where Roy’s dad took an insurance sales route.

There, Roy attended Juan Seguin Elementary, which was a segregated all-Mexican school. Young Roy led the de-segregation of the local movie theater, politely refusing to sit in the Mexicans-only section several times, until the theater finally relented and left him and his friends alone. At the time, there were no Mexican Boy Scout troops in Seguin. So, Roy’s dad formed a Boy Scout troop for the group. Roy eventually made Eagle Scout in San Antonio Troop 52, led by attorney Scout Master James Tafolla, Jr. The family later moved back to San Antonio, where Roy enrolled in what is now Fox Tech High School. “I was born Raul Ramiro Barrera, but my dad always called me Roy. I was sick on registration day, and I really wanted to sign up for the auto mechanics class before it filled up, so I asked my dad to register for me. He registered me as Roy, so I became Roy after that,” Roy explained.

In high school, Roy played clarinet in the band, and he was captain of the ROTC and captain of the rifle team, which took second place in a national shooting competition. Upon graduation, he immediately enlisted in the Army to serve in World War II. The high school transferred his records to the Army, so he remained Roy in the Army.

He was shipped to the Philippines. He had not been there long when the bombs were dropped on Japan, ending the war. He then served in a unit that searched out Japanese soldiers hidden in Korea, as well as Japanese civilians, to tell them the war was over and protect them from irate Koreans.

While they were repatriating the Japanese back to Japan, the Army pulled Roy’s records and found that he played the clarinet. Despite Roy’s protestations that he didn’t remember how to play the clarinet, he was placed in the Army band. The band traveled around Korea playing parades and other events. One of the songs Roy learned in Korea was Arirang, which he is fond of singing.

Roy liked to ride on the top of the instrument truck because it rode in the front and was less dusty than the truck with the band members.

One day, the truck hit a rut in the road and flipped into a rice paddy, sending Roy flying. His high school ring caught the edge of the truck, severely mangling his ring finger on his left hand. By the time they got him to the hospital in a bi-wing open Piper Cub airplane, the finger was so damaged that it had to be amputated, or else gangrene would spread.

The missing finger made it impossible for him to play the clarinet, but the show must go on, so Roy learned the trumpet.

The missing finger kept Roy from re-upping for the Korean War, so he returned to San Antonio to pursue his dream of becoming an auto mechanic. He was twenty at the time. He put down a deposit on a garage and was ready to go into business. Before the deal closed, Roy’s mother, seeing something in her son that perhaps he didn’t, thought he would make a good lawyer, like Alonzo Perales, a local civil rights leader, and encouraged young Roy to use his G.I. Bill to go to law school instead. Roy took his mother’s advice and immediately handled his first case: getting out of the garage contract. Roy pointed out to the garage owner that he was a minor and not eligible to enter into the contract and negotiated a return of half his deposit. He enrolled at St. Mary’s University to begin his formal legal education. Mother Barrera’s piece of advice was the seed of what would become a family legal dynasty, with Roy’s sons Roy, Jr. and Bobby, and grandkids Roy Barrera, III, Mark Joseph Barrera, Marissa Barrera Morales, Robert Erasmo Arellano, and

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San Antonio Lawyer 11

Monica Ramirez Khirallah all becoming lawyers. Two of Roy’s nephews, Gilbert Barrera, Jr. and the late Steve Barrera, sons of Roy’s two brothers, also became lawyers.

At the time, a bachelor’s degree was not required to enter law school, but certain undergraduate pre-law courses were required. The pre-law courses were taught at the St. Mary’s University main campus “up on the hill” on the West Side, while the law school was downtown. Back then, St. Mary’s was too far out of town for bus service, but Roy had a 1930 Dodge Roadster. He offered classmates rides to St. Mary’s for ten cents each way. His riding buddies included future federal Judge Hipolito “Hippo” Garcia, who graduated with him, and who baptized his daughter, Carmen Alice. They even made identical bar exam scores (yes, Roy’s kept those records). To this day, Roy refers to Hippo as “my compadre.”

Roy married Carmen Zendejas in 1948 while he was in law school, and they would remain married until her passing in 2015. Their first daughter, Yolanda, was born while Roy was on the fire escape outside Carmen’s hospital room window at Santa Rosa hospital (he was studying for finals). His grades slipped, and he was put on scholastic probation.

To make matters worse, Roy’s G.I. Bill money was about to run out, and he didn’t have the funds to keep going to school. The Veterans’ Administration stepped in and pointed out that his missing finger made him a disabled vet. As such, Roy was eligible for additional funds to finish school, but only if he could pass a psychological test to see if he had an aptitude for the law. According to the tester, Roy scored the highest anyone had ever made on the test. “I supplied the answers I figured they wanted, rather than the usual and customary responses,” Roy said. So Roy graduated from St. Mary’s law school in 1951. (They couldn’t afford college for Carmen, but years later, in her fifties, Carmen enrolled as a St. Mary’s student along with her kids, Carmen Alice and Bobby.)

Roy shows me a picture of the 1930 roadster, which he still has.

In the Fifties, he would take the roadster to the West Side to make drug buys as part of his work for the District Attorney’s office. He and Carmen drove the roadster to Muzquiz, Coahuila, for a family medical emergency in 1949, and to San Fernando Cathedral in 1998 to renew their vows for their fiftieth wedding anniversary.

The Young Prosecutor Roy was hired by the District Attorney’s office out of law school, the same day that his future law partner, Anthony Nicholas, was also hired there. Roy was first an investigator, then he was put on the complaint desk. Restless, he wanted to see courtroom action, and he remembered his grandfather’s words to go get what you want. He approached Pat Maloney, who was the chief felony prosecutor, about getting trial work.

Maloney told Roy that if he would go back to being an investigator, Maloney and Roy would try felony cases that Roy investigated. So Roy became a felony investigator and later became an assistant DA. The early DA years were the days of un-air conditioned, smoke-filled courtrooms, and the advent of women being allowed to serve on Bexar County juries. Roy made minor headlines for helping wrestle a crazed criminal defendant out of the courtroom, saving a man from jumping out of the courthouse window, deleting lewd scenes from a locally shown Swedish movie, dealing with local “pachuco” gang wars, trying narcotics cases, busting one-ball gambling operations, and prosecuting back-alley abortionists. Roy also began a side gig as a boxing ring announcer, which he continued to do for decades. (He shows me his 1991 Regional Golden Gloves chairman jacket, which still fits nicely. He also announced at Kelly Air Force Base twice for the Preliminary Olympics.)

As an investigator, he would sometimes take Hippo Garcia, who then worked for the clerk’s office, on nightly patrol. On one patrol, Roy arrested a drug dealer on a street corner and put the dealer in the front 12 San Antonio Lawyer | sabar.org

seat. Roy told Hippo, who was in the back seat, to use “the gun” if he tried anything. But (unbeknownst to the dealer) there was no gun, and Roy’s compadre thought he was crazy for suggesting it.

During a rape trial, a subpoenaed witness didn’t show up. As an investigator, Roy was told to go get the witness, a married woman.

When he arrived at the woman’s home, her husband, brandishing a knife, informed Roy that she would not be going with him to court and to “get the hell out of his home.” Roy recalls, “I told him that I had a gun in the car, and that I was going to go out to the car and wait, and that if she wasn’t in the car in five minutes, I would come back in with my gun.

She came out to the car. I shouldn’t have done that. I should have called for back-up. I didn’t use my brain because I had a gun. I never took a gun on an investigation again.”

But it’s the high-profile criminal trials, and a failed attempt at extortion on a young assistant DA named Barrera, that stand out during the DA years.

The “Honest” Cop In 1953, Korean War veteran O.R. Graves was a burly San Antonio police officer in his mid-twenties. In October of 1952, he had been dubbed by the newspapers as the “honest cop” for his taping of a police lieutenant willing to accept a bribe from an East Side man named Leroy Armstrong. Graves took the tape to the Express-News, not to his police superiors, but the tape quality was so poor that the bribed officer was never indicted.

On the night of February 23, 1953, Graves arrived at the Spot, an East Side bar formerly owned by Armstrong. He was accompanied by two vice officers, Myron Hubble and James Seibrecht. Graves had a suspicion that the Spot was the center of illegal liquor sales. At the Spot, he took J.C. Caldwell, a Black man who worked for Armstrong, to the back office and ordered him to open the safe, thinking there was liquor inside. Caldwell, seated in a swivel chair, said it was Armstrong’s safe, and he didn’t know the combination. Graves turned his back to Caldwell and removed some bullets from his pistol. In the presence of the vice cops, Graves then placed the pistol next to Caldwell’s left temple, and began squeezing the trigger, to scare Caldwell into “remembering” the combination. After a couple of clicks, the gun fired. Caldwell died immediately, remaining slumped in the chair. Graves allegedly exclaimed, “My God, what have I done!” The three cops then concocted a story. One of the vice cops had a knife, called a Dallas Special, that he had seized on a job earlier in the evening. They placed the knife on the floor, under Caldwell’s hand, and agreed that Graves would say that Caldwell had tried to cut Graves with the knife, so Graves acted in selfdefense. The three issued routine reports consistent with this story (with the vice cops stating that they were out in the hall and not in the room), and the Justice of the Peace summarily issued a finding of justifiable homicide. The police department’s investigation was similarly weak, and the city council rejected the complaints from prominent Blacks and likewise found Graves acted in self-defense.

Enter Roy Barrera, Assistant DA, then twenty-six years old. On February 25, Roy prevailed upon DA Austin Anderson to open up an investigation immediately, so that the DA’s office would be ahead of the uproar in the Black community, which would surely come. Roy led the investigation. He first sought more detailed statements from the vice cops and Graves. They refused to talk. On March 1, he took the knife to the Department of Public Safety lab in Austin to look for remnants of any materials from Caldwell’s coat pocket on the knife. There were none. Searching the police records, he found the man who had a knife seized from him by the vice cop earlier that evening. He took the man to the DPS office in Austin and presented a lineup of Dallas Special knives.

Barrera's collection of newspaper clippings, photos, and memorabilia from court cases document his storied life and his status as a San Antonio legal legend. Archive photos courtesy of Roy Barrera and family.

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San Antonio Lawyer 13

“I told him I had nothing against him, but that folks on the West Side weren’t too happy about this, so if some morning he woke up with a shiv in his back, I wanted him to know that I had nothing to do with it.”

The man identified his knife as the same one found at the Spot.

Roy viewed Caldwell’s body at the morgue. Caldwell’s corpse had a bruised left eye, which somehow was previously unnoticed by the medical examiner. The medical examiner said that dead bodies don’t bruise, and that the eye was struck by blunt force while Caldwell was alive. Roy asked the medical examiner if the bruise could have been caused by the bullet's impact, but the medical examiner said, “No.” Witnesses from the Spot came forward to say that Caldwell did not have a black eye before the cops arrived, and that the vice cops were indeed in the room when the shooting occurred. Graves was arrested on March 6.

By now, the vice cops were feeling the heat. Unknown to Roy, the vice cops were granted immunity by the judge at the request of the DA’s chief investigator to make a full sworn statement, which they did on March 8, this time telling the truth about their witnessing a bizarre game of Russian Roulette and the fact that they staged the crime scene to look like self-defense. With nowhere to turn, Graves fessed up, but claimed that the thing was just a terrible accident because he did not think there were any bullets in the gun.

The grand jury returned an indictment against Graves of murder with malice. Roy’s work was praised by local Black leaders, and the case was mentioned by Thurgood Marshall, then a civil rights attorney, in a speech he gave in San Antonio. But Graves alleged that all the Bexar County media attention justified a change of venue, and the Court ordered venue transferred to Jourdanton for the trial. The trial audience was full of members of the Black community, and the jury was all white, mostly local farmers and small businessmen. James Onion and Roy Barrera handled the prosecution. The prosecution was caught by surprise when the medical examiner who examined Caldwell’s corpse changed his testimony to say that Caldwell’s black eye might have been caused by the bullet rather than by blunt force. Given Graves’ position that the shooting was an accident, and that he had simply been negligent in what he did, the prosecution obtained an additional instruction of the lesserincluded offense of negligent homicide. In the end, after a mere thirtyminute deliberation, the Jourdanton jury found Graves not guilty.

The Tender Trap In this story, we have withheld some names, since the other players involved are dead and the case never went to trial (Roy himself has no 14 San Antonio Lawyer | sabar.org

problem naming names, though).

As an up-and-coming prosecutor in the Fifties, Roy angered some people in the criminal defense bar. In order to be the best, Roy thought, he needed to beat the best. Two of the best criminal defense lawyers that he severely tested and often beat weren’t happy about that. They hatched a plan to bring down the young Assistant DA. In 1956, Ann Miller (fraudulent identity), a shapely femme fatale, arrived at the DA’s office to see Roy. She told him that they had met at a campaign rally, and she needed help on a child support matter. Roy, not remembering ever meeting her, gave her a reference. Ann flirtatiously offered to take Roy out for a drink some time, then she left. Roy’s office confidant was Anthony Nicholas, his future law partner. “I told Nick, ‘I don’t know her, and this looks like a set-up.’ About two, three weeks later, she calls, saying, how about our drink?” Roy said. Nick cautioned Roy to leave it alone. But Roy had to find out what was going on and who was behind it. So they went on their first “date,” where Roy picked her up at an agreed location on the street, and they drove to an East Side bar of Roy’s choosing, so he could get a head start on who might be following him.

He told the bartender and bar owner (whom he knew) to keep an eye on him and the girl so the bartender could testify later if necessary. “She brought a bottle of tequila, but I don’t drink,” Roy said. “After about fifteen minutes, she gets up to make a phone call and returns, saying she needs to leave to take care of her child. As it turns out, the original plan was to set me up for drunk driving, but that was called off because I wasn’t drinking.” She calls again for a second date. Again, Roy chose the location, this time Rex’s Drive-In on Loop 410, a dark café where Roy sat facing the door. Roy recalls, “I told the bartender to watch the door for me and my conduct with the girl, to serve as my witness. Ann gets up to make a phone call; same story, to check on her child. Actually, she was calling her accomplice, a pimp named Ed. As we walked into the parking lot, she put her arm around me. As it turned out, the pimp had been waiting for us in the parking lot to snap the picture of our embrace.

But moments before, the parking lot attendant had seen the pimp with the camera and had chased him off.” The third date was to be in a motel room. When they arrived, she turned the TV on loud, then used the phone, and immediately said she had to leave. This time, it seems that her accomplices weren’t able to follow her to the room. The plot wasn’t working out so well for this bunch. And Roy was still trying to figure out who they were. The next and final date was to be at the Lackland Motel.

Ann insisted on the Lackland Motel, which she said was suggested by Ed (the pimp), so it was the only place she would go. Roy researched the city records and found that the owner of the Lackland Motel was an ex-detective who left the department with a bad reputation. “I figured that the room was going to be wired. I still didn’t know who was behind the scheme, or if the motel owner had something against me,” Roy said.

The day before the last date, a man who owned a men’s shop downtown approached his friend, DA Hubert Green, with this bombshell: Ed the pimp, who always dressed in fancy clothes, came into the shop wanting to buy some blue jeans and a work shirt. The pimp volunteered to one of the clerks that he needed the clothes because he had a job to do; they were going to hide in the grass and catch an Assistant DA in a trap with a woman. So an office meeting was called with the Assistant DAs, warning them about Ed the pimp and that someone’s “got a red-hot date and you’re gonna get yourself in trouble.” Whereupon Roy said in jest, “There goes my red-hot date for tonight!” Guffaws ensued. Roy suspected the two defense attorneys who disliked him were involved, because one of them associated with Ed. He also suspected that a certain DA investigator was involved because Roy had gotten crosswise with him over the investigator’s secret surveillance of one of Roy's colleagues.

Uncertain whether to go through with it, Roy picked up Ann for the last

On the stand, Alcorta said that he did not intend to kill Herlinda. On cross, Roy asked him, "What did you intend to do when you stabbed her thirty-two times?" date. It was a cold night. Roy told her he first wanted to stop at a café for some hot chocolate (and he also wanted his unseen enemies to suffer in the cold). At the café, Roy confronted Ann that he knew about Ed the pimp and the plot and who else was involved, and that she was in big trouble. She admitted she knew the pimp but denied the rest. And that was the end of the date, which lasted about two hours.

The next day Roy told DA Hubert Green what had happened and whom he suspected. The DA’s office ultimately tracked down Ann, and she gave a statement about the whole thing: a conspiracy involving the defense lawyers, Ed the pimp, the investigator, Ann, and her husband; how the earlier traps were botched, and that the group was set up with cameras and tape recorders at the Lackland Motel, lying in wait for Roy. Green wanted Roy to file a complaint with the grand jury, but he refused and wanted to handle it his own way. Roy went to Ed the pimp. “I told him I had nothing against him, but that folks on the West Side weren’t too happy about this, so if some morning he woke up with a shiv in his back, I wanted him to know that I had nothing to do with it.” Ed immediately moved to Houston, prevailing upon one of the defense attorneys to send him a monthly support check. Then Roy made it known around the courthouse who had tried to ruin him. In a bizarre turn, one of the defense attorneys (who denied being involved) tried to cover it up. He invited Roy to his house, and told Roy that he would tell him everything, but only if Roy (a Catholic) took an oath of silence in the presence of a priest. They even called the priest, but Roy changed his mind and called it off. He knew enough. Roy said, “I never filed a complaint, and Hubert Green accused me of going on a ‘Mexican Vendetta.’” Roy was satisfied that karma would one day come around. In Roy’s mind, it did. The defense attorneys ultimately suffered debilitating diseases and died friendless. And no, Carmen didn’t know about any of this until it was over.

four times, although at first he had denied it. The statement was placed in the case file, and it did not surface during the trial. Alcorta’s defense was that he was in a heat of passion (he had seen them kissing), which would make the case for a lesser charge of murder without malice, which carried a five-year maximum sentence. Alcorta had never mentioned sexual activity by Herlinda while testifying at trial. On the stand, Alcorta said that he did not intend to kill Herlinda. On cross, Roy asked him, “What did you intend to do when you stabbed her thirty-two times?”

Alcorta denied that he stabbed her that many times, which resulted in the photograph of Herlinda’s corpse being introduced into evidence.

“I was a little concerned about the introduction of the photos, because that could have been viewed as too prejudicial and possibly grounds for reversal,” Roy said. But that wouldn’t be the biggest problem. Castilleja took the stand and testified that he and Herlinda were not in love, and that they had no dates. Castilleja was not asked, and did not volunteer, about the sexual intercourse. The jury found Alcorta guilty and gave him the death penalty. Alcorta appealed, based on the introduction of the gruesome photos, but the Court of Criminal Appeals upheld the conviction.

In 1957, while Alcorta awaited his execution, a prison priest found the Castilleja statement and contacted attorney Fred Semaan, who stepped in for Alcorta and sought a review from the Texas Board of Pardons and Paroles, arguing that the conviction should be overturned because of the new evidence of the Castilleja statement. The Board denied Alcorta’s appeal. Then the Texas Court of Criminal Appeals denied Alcorta’s writ of habeas corpus application based on the Castilleja statement and again sustained the conviction and denied relief. The case went to the U.S. Supreme Court. By this time, Roy was no longer with the DA’s office

Tragedia Alvaro Alcorta In 1955, Alvaro Alcorta was a mechanic in his mid-thirties working at Kelly Field. He was separated from his young wife and the mother of his children, twenty-two-year-old Herlinda. Herlinda worked as a waitress and was staying with her mother. Alcorta had complained that Herlinda was not staying home and not taking care of the kids. He boldly went to the cafe where Herlinda worked with three bar maids and informed them that he intended to kill Herlinda and escape to Mexico. Alcorta quit his job and packed his bags. Then he waited for Herlinda outside of her mother’s house. After midnight, a car pulled up, driven by a young man, Natividad Castilleja (18), with Herlinda inside. Alcorta rushed the car with a knife and began stabbing Herlinda. Castilleja briefly tried to defend her but ran away. Alcorta took Castilleja’s car out to Atascosa County with Herlinda’s body inside, dumped her in a creek bed, then headed toward Mexico. She was found dead by two fishermen the next afternoon, with thirty-two stab wounds in her body. Alcorta returned to Texas to pick up his last Kelly Field paycheck and was arrested by the authorities and charged with murder with malice. Roy was given the case to prosecute, and he sought the death penalty for Alcorta.

Somewhere during the process, Roy interviewed Castilleja, who gave a written statement that he had had intercourse with Herlinda three or July–August 2020

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The case inspired two corridos: Tragedia Alvaro Alcorta, by Los Caminantes, and El Corrido de Alcorta, by famed accordionist Santiago Jimenez, Sr. and was in private practice, but Roy handled the argument for the State before the Supreme Court, at the request of DA Hubert Green. The Supreme Court reversed Alcorta’s conviction, holding that the Castilleja statement should have been disclosed. Roy contended there (and still contends) that the Supreme Court got it wrong. “The issue was the state of mind of the defendant, whether he had reason to be in a heat of passion,” Roy says. “Whether Castilleja had previous sex with Herlinda was irrelevant because Alcorta didn’t know it. It could not give him a motive today that he didn’t have yesterday. He couldn’t be heard to say, ‘I killed her yesterday because I found out today that she had an affair.’” Alcorta, still aided by Fred Semaan, was charged again and ultimately given a thirty-year sentence in Corpus Christi on a guilty plea.

The case inspired two corridos: Tragedia Alvaro Alcorta, by Los Caminantes, and El Corrido de Alcorta, by famed accordionist Santiago Jimenez, Sr. Both are on YouTube.

Not to be outdone, Roy himself wrote a poem about the case, from Herlinda’s point of view.

This is the first of a two-part series. Next Issue: Roy enters private practice with Nicholas & Barrera, serves as Texas Secretary of State, and becomes an iconic Texas criminal defense attorney.

Post-Script. The author would like to thank the whole Nicholas & Barrera office, the Barrera family, and especially Roy Barrera for the hospitality, the time, and the amazing stories.

S teve A. Peirce practices business bankruptcy law in the San Antonio office of Norton Rose Fulbright.

He can be reached at 210.270-7179 or steve.peirce@ nortonrosefulbright.com.

16 San Antonio Lawyer | sabar.org

210-271-2999

www.WhatsOnThePhone.com The Proof is in the Data 8209 Roughrider Dr., Suite 100A, Windcrest, TX 78239 Licensed Texas Private Investigator (A15633)

HISTORY OF INHERITANCE: PART II

History of Probate Law

Y

By Harry L. Munsinger, J.D., Ph.D.

ou cannot take it with you, so what happens to your property when you die? Assets can be transferred by drafting a will, or a probate court will distribute your estate by the laws of intestate succession after you die. The word “probate” derives from the Latin word “probationem,” which means approval, proving, or trial. Black’s Law Dictionary defines “probate” as a “[c]ourt procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered.”1 Part I of this series explored historical systems of intestate succession.

Part II of this series describes the development of probate processes under English and American law. The particular procedures have varied throughout history, but in general—once a will is validated—a probate court issues letters testamentary appointing an executor to gather assets, pay proper debts, and distribute assets to beneficiaries.

Origins of Probate Practices English and American probate procedures developed from the ancient Roman practice of breaking the seals on a will before witnesses who originally attested the will. Early Roman wills had to be witnessed by six or seven persons who affixed their seals to the will (called a “will under seals”). When an ancient Roman will was opened before or after the testator died, a majority of the witnesses who had affixed their seals had to be present at the opening, although a witness could send a friend in his place if he could not attend in person. The witnesses or their representatives had to verify that the seals were unbroken when the will was withdrawn for inspection. After an ancient Roman will was opened, the witnesses or representatives had to state that they recognized their seals and were satisfied that the will was intact when it was opened and had not been altered. English courts copied the practice of validating wills from the Romans, and different courts shared jurisdiction over the probating of wills in early England.

Ecclesiastical and Common Law Courts Before the Norman Conquest, there were no ecclesiastical courts in England, so the clergy had to file suit in secular common law courts when they had a legal dispute. William the Conqueror established

The particular procedures have varied throughout history, but in general—once a will is validated—a probate court issues letters testamentary appointing an executor to gather assets, pay proper debts, and distribute assets to beneficiaries.

ecclesiastical courts, in addition to existing common law courts, and assigned jurisdiction over the inheritance of personal property to ecclesiastical courts, while jurisdiction over the inheritance of land was retained in common law courts. Because bishops were trained in Catholic canon law, the rules governing probate of a will were based primarily on Catholic law rather than English common law. However, ecclesiastical courts did not have exclusive jurisdiction over wills bequeathing personal property because creditors could also sue the deceased person’s estate in a common law civil court and receive a judgment for debts owed. Neither ecclesiastical nor common law courts were suited to handle conflicting claims of creditors and heirs, so English chancery courts evolved to resolve such conflicts.

Chancery Courts Chancery courts were administered by the king’s chancellor and served as courts of equity with flexible rules of procedure. When there were conflicting claims to land or personal property, these cases were assigned to chancery courts if the chancellor believed common law courts might produce an unfair outcome. Chancery courts heard evidence and ordered the administrator of the will to carry out its decision, or such courts took charge of the estate and disposed of it through their own administrative actions. However, the chancery courts could not act until after an ecclesiastical court had issued letters of administration to the executor.

July–August 2020

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Proceedings before the civil or chancery courts were recorded in Ex Officio Act books by scribes of the chancery courts. These records contained the name of the deceased, the names of executors or administrators, notice of a grant of execution on an inventory of the estate, the value of all goods in the estate, and any fees charged for services by the court or the administrator. These books also listed any claims against the estate, requests for the payment of the deceased person’s debts, and other administrative documents connected with probating and administering a will.

Evolution of English Probate Procedures Gradually, ecclesiastical courts lost most of their jurisdiction over wills and other matters associated with the inheritance of personal property, although church courts retained power over the validating of wills into the nineteenth century. Litigants who were unhappy with the rulings from ecclesiastical courts could seek a writ of prohibition in a common law court to stop church courts from carrying out their orders. Proliferation of these writs eventually handicapped ecclesiastical courts so that they could not function properly. To remedy this problem, chancery courts assumed jurisdiction over contested wills, resolved the impasse between ecclesiastical and common law courts, and administered justice more effectively using equitable rules and procedures.

Placing jurisdiction over matters involving disputes about wills and inheritance laws within the chancery courts made sense because their flexible rules allowed these courts to handle both personal property and real estate at the same time. However, the validation of wills and the appointment of administrators remained within the jurisdiction of ecclesiastical courts. Parliament finally transferred jurisdiction over probate cases to the Court of Probate in 1857.

American Probate Practices Probate procedures in America developed differently from those under English common law because there was no state religion, and there were no church courts in the colonies. Probate jurisdiction was vested in American civil or statutory probate courts, depending on the population in the county where the court was located. Statutory probate courts were established in populous counties while, in more rural counties, civil courts handled probate matters. American courts allowed the probating of wills dealing with land and personal property in the same civil court because the colonies did not have Norman feudal tenure. American probate courts required that an executor be appointed for every estate, and he or she was responsible for filing the original will in a probate court and administering the estate after the death of the testator.

Probating a Will An American executor is required to produce the original will for probate.

If the executor does not offer the will for probate, another interested party, such as a beneficiary, can petition the probate court to name a new executor to carry out the probate process. Generally, probate is initiated when the executor’s attorney files a petition for probate, but in some states, filing the will alone is sufficient to begin the probate process.

Usually, the probate petition must allege that the testator is dead and, prior to his or her death, was domiciled in the county where the case is filed. Most probate courts require that interested parties be given notice before the probate court will schedule a hearing. If the will is not contested, the probate proceeding is fairly simple: a witness, usually the executor, testifies that the testator has died and was domiciled in the county where the probate case is filed at the time of his or her death, and that the will on file is the valid last will of the decedent.

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Self-Proving Affidavits Many states allow a self-proving affidavit be affixed to a will, which dispenses with calling attesting witnesses to verify the execution of the will. If a self-proving affidavit is not available, an attesting witness must appear and give evidence about the will’s execution. The initial probate proceeding does not determine the construction or effect of the will.

Rather, the probate court simply determines that the offered will is the original last will and testament of the deceased and was properly executed. The court then issues letters testamentary to the executor, naming him or her administrator of the estate. Some states require the probate court to supervise the executor, while other states allow an independent administration of the estate by the executor. A will must be probated because the beneficiaries cannot establish their rights to the property otherwise.

If the original will cannot be found, its terms can usually be established by submitting a copy of the will and introducing testimony of a person familiar with the original will, such as the attorney who drafted it. The probate procedure then follows the same course as if the original will had been produced.

Will Contests Once a will is offered for probate, any interested party may enter an appearance and contest the validity of the will, but legal experts estimate that only around one percent of American wills are disputed. Many attorneys try to protect against a suit being filed by including a nocontest clause in the will they are drafting. Many probate courts will not enforce a no-contest clause because judges believe the will contestant should have his or her day in court.

Bringing a will contest can cause division and bitterness within a family, and it is often not worth the trouble. However, that does not dissuade some disgruntled family members from bringing a will contest if they are unhappy with what they will receive under the will. Suits

are often filed over small amounts of property because family members care greatly about the issues involved and may have residual emotional baggage from earlier family interactions.

Depending on the laws of the state, there are three ways to contest a will: (1) by contesting it directly in a probate court; (2) by appealing the probate court’s order to a higher court; or (3) by filing a separate action in a court of equity. The statute of limitations for bringing a will contest varies from weeks to seven years.

Standing to Contest a Will A will can be contested by any interested party, including heirs and beneficiaries. For example, an heir who could expect to receive property under the state’s laws of intestacy has standing to contest a will. Beneficiaries under a prior will can also contest a later will, unless the contesting party’s interest is the same or larger under the later will. A person who purchased property from an heir has standing to contest a will if it turns out that the seller is not a named beneficiary of the offered will. However, creditors of the deceased person cannot contest a will in probate court. Instead, creditors must file their claims with the executor and ask him or her to determine the validity of the claims. Creditors who disagree with the executor’s decision can ask for a ruling from the probate judge.

Grounds to Contest a Will Generally, the grounds for contesting a will include the following allegations: (1) the will was not property executed; (2) the testator lacked capacity to draft a will; (3) the will was altered or is a forgery; (4) undue influence was exerted on the testator at the time the will was drafted; (5) the will was revoked; or (6) the testator was operating under a mistake when he or she drafted the will, and that renders the will invalid. No matter what grounds are asserted, there is no right to a jury trial in a will contest.

Improper Execution. Contesting a will based on improper execution is rarely successful because if the will is in writing, dated, signed by the testator, and witnessed by two or three competent persons, the execution procedure is almost always upheld.

Lack of Capacity. A testator lacks the capacity to draft a will if he or she is a minor, demented, or insane. In the early history of wills, the ancient Romans required that citizens be adults before they could draft a valid will, and that requirement has been adopted by all subsequent legal systems. Generally, the test has been applied to biological age rather than maturity or legal emancipation, so individuals need to be above a certain chronological age to draft a valid will. Usually, an adult has capacity to make a will if he or she can bring to mind assets owned, can recall the natural persons who should benefit from the estate, and can relate the assets and the persons who are the natural beneficiaries of the estate in his or her mind during the drafting of a will.

Dementia can render a will invalid, even though the testator is of age, if he or she is senile, lacks sufficient memory, or suffers some other intellectual deficiency that precludes his or her making a valid will.

Individuals suffering from mental illness may not be able to execute a valid will if they do not have rational capacity, or if they are acting under a delusion that renders the will invalid. An individual contesting the testator’s capacity will typically offer expert testimony from a physician and analysis of medical records. However, lay witnesses such as friends and neighbors can also offer testimony to show a testator lacked the mental ability to draft a valid will.

Forgery or Fraud. Forgery and fraud are uncommon claims in will contests although some lawyers have been implicated in plots to defraud beneficiaries by forging a will after the client died. Evidence that a will was forged can be circumstantial, such as the naming of unusual

beneficiaries, analysis of the testator’s signature, cross examination of attesting witnesses, and testimony from friends and family members who swear that the decedent never drafted a will. Fraud claims are often associated with allegations of undue influence or lack of capacity to draft a will. There are two types of fraud associated with allegations of a defective will: fraud in the inducement, which happens when someone makes a false statement of fact and convinces a testator to draft a will different from what he or she would ordinarily intend; and fraud in the execution, which means someone lied about the actual instrument the testator signed.

Fraud in the inducement could happen if someone told the testator his child had said bad things about him, inducing the testator to leave that child out of the will. Fraud in the execution happens if the testator’s attorney tells him or her that the instrument the testator is signing is a true and correct copy of the will when it is in fact a different document. Fraud in the inducement or execution generally happens to older individuals who do not understand what they are doing and trust the wrong person.

Most cases alleging undue influence concern the naming of unnatural beneficiaries, such as when the testator leaves money to someone outside his or her family.

Undue influence. A common claim in a will contest is that the testator was subjected to undue influence when he or she drafted a will. Next to lack of capacity, undue influence is the most common claim in a will contest. Often lack of capacity and undue influence are alleged together because they often happen at the same time in the drafting of a defective will. Undue influence is usually proved by circumstantial evidence showing that: (1) the influencer had the opportunity to pressure the testator; (2) the testator was subject to undue influence because he or she had impaired cognitive function; (3) the influencer was disposed to use his or her influence to alter the terms of the will; and (4) the result of the contested will is different from what would normally be expected and appears to be the result of improper influence.

Undue influence occurs when someone the testator trusts pressures him or her to draft a will different from what the testator intended.

Lack of capacity generally occurs along with undue influence because a person who is older and has declining cognitive function is easier to influence than someone younger and of sound mind. Will contests that allege undue influence often involve older individuals who are taken advantage of by a friend, relative, or professional. Often, the claim is that a housekeeper, caretaker, or a new “friend” unduly influenced an older person to leave money to him or her rather than to the family.

Most cases alleging undue influence concern the naming of unnatural beneficiaries, such as when the testator leaves money to someone outside his or her family. Examples of undue influence include wills where the testator left everything to his attorney, doctor, priest, guardian, housekeeper, or a girlfriend, rather than to his spouse and children, who are the natural beneficiaries of the estate.

Influence has to be unreasonable rather than simply the result of natural affection for a caretaker. For example, if the decedent leaves a tidy sum to someone who diligently cared for him for several years before he died, that situation is understandable and, by itself, would not ordinarily be considered undue influence by a probate judge. Similarly, it is generally not considered indicative of undue influence if a decedent leaves everything to a spouse because a spouse is a natural object of a person’s bounty. In July–August 2020

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contrast, bequests to new romantic interests may draw suspicion of undue influence, especially if the testator leaves nothing to his family.

ENDNOTES Probate, Black’s Law Dictionary (6th ed. 1990).

Julie Garber, What Happens During the Probate Process? The Balance (Mar. 4, 2020), https://www/thebalance.com/what-is-probate-3505244 (last visited April 20, 2020).

3 Randolph Richards, A Scroll with Seven Seals (July 21, 2016), https://randolphrichards.com/2016/07/21/a-scroll-with-seven-seals/ (last visited April 20, 2020).

4 Eugene M. Haertle, The History of the Probate Court, 45 Marq. L. Rev. 546, 54650 (1962).

5 Id. 6 Garber, supra note 2.

7 Rania Combs, Why Should My Will Include a Self-Proving Affidavit (May 16, 2018), https://texaswillsandtrustlaw.com/2018/05/16/why-should-my-will-include-aself-proving-affidavit/ (last visited April 20, 2020).

8 Rania Combs, Is It Possible to Probate a Lost Will?(Oct. 10, 2012), https://texaswillsandtrustlaw.com/2012/10/10/is-it-possible-to-probate-a-lost-will/ (last visited April 20, 2020).

9 Julie Garber, How to Contest a Will, The Balance (Aug. 6, 2019) https://www. thebalance.com/how-to-contest-a-will-3504867 (last visited April 20, 2020).

10 Id. 11 Jose Rivera, Testamentary Capacity in Drafting a Will, Legal Match (Sept. 4, 2019, 01:15:45) https://www.legalmatch.com/law-library/article/mental-competency-in-drafting-a-will.html (last visited April 20, 2020).

12 Garber, supra note 9.

13 Probate Fraud and Will Forgery, DAS Law Blog (April 2018), https://www.daslaw. co.uk/blog/probate-fraud-and-will-fraud (last visited on April 20, 2020).

14 Mary Joy Quinn, Defining Undue Influence (Feb. 1, 2014) https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_35/issue_3_feb2014/defining_undue_influence/ (last visited April 20, 2020).

15 Lee J. Alston & Morton O. Schapiro, Inheritance Laws Across Colonies: Causes and Consequences, 44 J. Econ. Hist. 277, 277-87 (1984).

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Revocation Revocation can be shown by mutilation of the will, a notation of revocation on the face of the document, evidence of a testator’s intent to revoke the will, or testimony that the original will cannot be found.

Conclusion After wills became a popular way to distribute land and personal property, English and American courts needed a systematic way to determine if a will was valid. English courts borrowed from the early Roman practice of validating a will under seals to develop formal probate procedures, and American courts adopted similar probate practices from English common law courts. These probate practices are designed to ensure that the decedent’s property is distributed in accordance with his or her genuine wishes and allows beneficiaries to establish clean title. Thus, the probate process continues to serve important personal and societal interests, just as it did in ancient times. arry Munsinger practices collaborative and estate law in H San Antonio. He holds a Ph.D. in psychology from the University of Oregon, was a Post-Doctoral Fellow at Yale, and earned a law degree at Duke where he served on the Law Journal. Harry was an Adjunct Law Professor at the University of Texas and at St. Mary’s University.

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Practicing Law During a Pandemic Will Temporary Circumstances Catalyze Permanent Changes?

By Natalie Wilson

O The San Antonio Lawyer has a two-pronged mission to serve the members of the San Antonio Bar Association: to provide substantive content and to chronicle the lives and practices of our bar members.

It seems imperative that this magazine should preserve at least an impression of what it was like to practice law during the COVID-19 pandemic and the resulting shutdown. As we have attempted to re-open and slowly move toward something approaching "normalcy," I grew curious about what the enduring effects of practicing law remotely might be. To create a sort of time capsule, I queried several friends in the Bar about their experiences and predictions. Undoubtedly, the practice of law will look very different in ten or twenty years, and it will be interesting to look back and see what changes took root in early 2020.

n March 11, 2020, the World Health Organization declared the illness caused by COVID-19, a novel coronavirus, to be a pandemic. San Antonio and the surrounding area had already been on high alert because repatriated Americans evacuated from Wuhan, China—where the disease was first identified— had been quarantined at Lackland Air Force Base since February. The announcement of the pandemic, however, dramatically shifted the public health response. City, county, and state governments began issuing emergency orders designed to limit the movement of citizens to prevent the spread of the virus. Courts closed for all but the most urgent hearings. Most hearings and trials were cancelled, and jury service was suspended. Schools and daycare facilities closed. Law firms and other businesses quickly mobilized resources to permit the vast majority of their personnel to work from home.

This seemed tenable, if not ideal, for a week or two. As of the writing of this article, however, it has been nearly ten weeks since the WHO’s announcement. Courts have “reopened” incrementally for telephonic or videoconference hearings. Depositions and alternative dispute resolution have likewise gone on-line.

While some mandatory restrictions have eased somewhat, there are still many barriers to resuming activities in the same manner they were conducted pre-pandemic. In April, Texas schools were closed for the remainder of the academic year. Many daycare centers are still closed, and summer camps are cancelled, making it impossible for many lawyers to return to “normal” work routines.

Courts cannot conduct their business and maintain the recommended social distance and sanitation measures, so in-person hearings and trials have not resumed at normal levels.

Recently, by order dated June 29, 2020, the Supreme Court of Texas extended restrictions upon jury trials until at least September 1, 2020. In-person seminars, conferences, and

other continuing education opportunities were cancelled in the spring, and such events either shifted online or were rescheduled for later in the year.

Law firms have not been immune from the financial pressures generated by a halted economy, with many firms announcing layoffs, salary reductions, and postponed start dates for new associates. Firms also had to curtail or substantially modify their summer associate programs. Many states, including Texas, delayed the July bar exam and implemented or modified rules for unlicensed graduates to practice law pending the results of their bar exams. The bar exam will be administered in September and October (subject to change based on further emergency orders).

Juggling this onslaught of change has been challenging logistically, financially, and emotionally. Hopefully, many of our adaptations will be temporary, but there may be aspects of our “new normal” that are worth carrying forward.

In particular, Ashley Senary Dahlberg, a financial services attorney at Norton Rose Fulbright, noticed a distinct increase in connection and empathy among the teams she works on. These teams begin their conference call with each member using a single word to describe how he or she feels that day. This quick check is less invasive than asking “how are you feeling” but still allows leaders to assess what the team members need at that moment. Dahlberg hopes that this pronounced interest in the well-being of others will continue, as “gentleness with ourselves and each other can only benefit what is otherwise a tightly wound profession.”

Liz LaBarge, the co-owner of Texas Medical Legal Consultants, LLC and current Chairman of SABA’s Medical Legal Liaison Committee, echoed Dahlberg’s sentiments.

Texas Medical Legal Consultants had some experience with remote work. Its employees have been permitted to work remotely one day July–August 2020

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San Antonio Lawyer 21

per week for the last two years, and their work was always remote from the medical expert witnesses and attorneys they connect. So, the technical and administrative infrastructure to support fully remote work was already in place. In some respects, the pandemic closures made their work easier because many physicians were more available while nonemergency appointments and procedures were prohibited. The biggest challenge for LaBarge was maintaining the company culture and personal connections with her colleagues, but she believes the executive team’s efforts will prove worthwhile because “prioritizing the wellness and health of our employees during these challenging times will lead to enhanced productivity in the long term. It is essential to show grace and acknowledge every employee’s fears, concerns, and individual circumstances.”

LaBarge notes that the attorneys and experts she works with have also shown increased patience and flexibility with each other, which she hopes will continue post-pandemic.

Like LaBarge, intellectual property attorney and SABA Director Nick Guinn already interacted with his clients mainly by telephone or email. Discussions that he would normally have in-person were easily conducted by videoconferencing. While Guinn worried about having less access to hard copies of documents, he has found electronic documents surprisingly easy to work with and is excited about continuing to use less paper going forward. He has been supported in these transitions by his assistant, Rebekah Maldonado Holder, whom he calls “phenomenal.” Guinn looks forward to the day when social distancing is no longer required, but he believes that the demonstrated effectiveness of remote communication will allow lawyers to serve clients outside their immediate geographic area.

The San Antonio Bar has risen admirably to the challenges presented by the COVID-19 pandemic. The spirit of optimism and resiliency that has gotten us through the last few months will help us as we consider how best to serve our clients, our organizations, our community, and each other as we shape our “new normal.” atalie Wilson is a N shareholder in the Bankruptcy and Cybersecurity, Data Protection, and Privacy groups at Langley & Banack, Inc.

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Fourth Court Update

Work in the Time of COVID-19

By Justice Irene Rios

In January, the media began covering a virus outbreak in China. At the time, it appeared to be a health concern on the other side of the world and localized in one city. I never thought something so remote would ever impact my life, but we live in a highly mobile society. By February, COVID-19 had arrived in the United States and had begun to spread in many of our cities. As of mid-February, the virus was here.

At our March 3rd judges’ meeting, we preliminarily discussed the court’s contingency plan for a potential outbreak that might endanger the health and safety of court personnel and the disruption of court operations. That day, we set the wheels in motion to prepare for the unprecedented possibility of a completely virtual court. The planning first focused on providing all employees access to the court’s secure servers via its Virtual Private Network ("VPN"). Within a few days, the court’s IT Security Specialist successfully tested emergency communication lines, the Chief Deputy Clerk finalized notices for posting on the court’s website and on the court’s doors, and the Clerk of the Court worked on financial operations, such as payroll and paying vendors.

On March 11th, the World Health Organization declared the COVID-19 outbreak a pandemic. While the culture at the Fourth Court has always been that work is done at work and not from home, the pandemic forced us to move from a mindset of “we’ve never done this,” and “we shouldn’t do this,” to a mindset of “we might have to do this,” and “let’s figure out how.” On March 12th, after calling a meeting of all staff and discussing every aspect of the court’s work flow and any foreseeable issues that might arise from converting to a virtual work environment, Chief Justice Sandee Bryan Marion agreed to do a trial run with half of the staff working from home the next day. Our IT specialist configured and issued laptops to the deputy clerks and a few other employees. During the trial run, we discovered there was insufficient bandwidth to support the number of employees accessing the court’s VPN remotely, which our IT specialist rectified immediately. Although many of the court’s internal functions were performed electronically, we still circulated paper drafts of our opinions from chamber to chamber. When the pandemic hit, we immediately began circulating draft opinions electronically. On March 17th, just days after our work-from-home trial run, and amid the very fluid and rapidly evolving COVID-19 threat, the Chief Justice made the executive decision to mandate that everyone work from home until further notice.

With the input and hard work of the court’s dedicated employees, we successfully converted to a virtual workplace within two workdays of the trial run and without any disruption in the court’s operations.

The clerk’s office stands ready to receive and process filings and answer phone calls. Justices proceed to rule on appeals and original

While the culture at the Fourth Court has always been that work is done at work and not from home, the pandemic forced us to move from a mindset of “we’ve never done this,” and “we shouldn’t do this,” to a mindset of “we might have to do this,” and “let’s figure out how.”

proceedings, and the court continues to issue orders and opinions. In fact, the Fourth Court has issued more opinions during its time as a virtual court than it did during the same time last year. The justices, attorneys, administrative staff, and chambers conduct meetings using technology such as Zoom and Microsoft Teams. The court plans to hold oral arguments using Zoom conferencing and livestreaming to the court’s YouTube channel.

Chief Justice Sandee Bryan Marion, Clerk of the Court Michael A. Cruz, Chief Deputy Clerk Luz Estrada, and IT Security Specialist Del Merritt deserve accolades for implementing the changes we executed. We took extraordinary measures during extraordinary times to continue the important work of the judiciary.

J ustice Irene Rios has served on the Fourth Court of Appeals since January 2017. Justice Rios previously served as Judge of County Court at Law No. 10, in Bexar County, for fourteen years. Prior to her appointment to the bench, Justice Rios spent nine years in private practice. She is a Fellow of the Texas Bar Foundation and has served as a Special Master of major litigation. Justice Rios wishes to thank Chief Justice Sandee Bryan Marion and Clerk of the Court Michael A. Cruz for their assistance with the preparation of this article.

July–August 2020

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Federal Court Update

Western District of Texas Court Summaries

By Soledad Valenciano, Melanie Fry, and Charles Carter

If you are aware of a Western District of Texas order that would be of interest to the San Antonio Bar Association and summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210.787.4654) or Melanie Fry (mfry@dykema.com, 210.554.5500) with the style and cause number of the case, and the entry date and docket number of the order.

Property Insurance; ExtraContractual Claims Alvarez v. State Farm Lloyds, No. SA-18CV-01191-XR (Rodriguez, X., March 2, 2020).

In an insurance coverage dispute, plaintiff brought breach of contract and extracontractual claims against his insurer.

Plaintiff’s extra-contractual claims alleged violations of the Texas Deceptive Trade Practices Act and the Texas Insurance Code, as well as a breach of the common law duty of good faith and fair dealing. The coverage dispute centered on plaintiff’s claim that wind and hail damaged his clay tile roof. State Farm’s adjuster determined that the damage to plaintiff’s roof was caused by either “inherent vice and/or latent defect.” State Farm relied on the adjuster’s findings and denied the claim as falling within a policy exclusion. State Farm moved for summary judgment on plaintiff’s extra-contractual claims. The court determined that each of plaintiff’s extra-contractual claims required a showing of common law bad faith in order to recover. The court found that there was a “bona fide coverage dispute” because State Farm identified a “reasonable basis” for its claim denial. Plaintiff raised no genuine issues of material fact regarding the absence of such a reasonable basis. The court granted State Farm’s motion for summary judgment on plaintiff’s extra-contractual claims because evidence of the coverage dispute is not evidence of bad faith.

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Pleadings; Motion Conversion O’Malley v. Brown Bros. Harriman & Co., SA-19-0010-JKP (Pulliam, J., March 3, 2020).

Plaintiff sued her investment advisor for breach of fiduciary duty, negligence and gross negligence. Investment advisor moved to dismiss, arguing statute of limitations and attaching the parties’ investment advisory agreement to the motion to dismiss. Plaintiff requested that the motion to dismiss be converted to a motion for summary judgment under Rule 12(d) and moved to strike the investment advisory agreement. Rule 12(d) provides that in the context of a 12(b)(6) or 12(c) motion, if matters outside the pleadings are presented to, and not excluded by, the court, then the motion must be treated as one for summary judgment under Rule 56.

The court ruled that it would not consider the investment advisory agreement because plaintiff did not refer to the agreement in her pleadings; that an implicit reference is insufficient; that the document is more central to an affirmative defense than to a claim; and that the defendant opposed the conversion of the motion to dismiss to a motion for summary judgment. The court declined to review the applicability of the discovery rule or the continuing tort doctrine at the motion to dismiss stage. Plaintiff alleged insufficient facts to state a plausible claim for gross negligence under Texas law which requires “extraordinary harm” of which death, physical injury, and financial ruin are examples, but not requirements. The court granted the motion to dismiss solely as to plaintiff’s gross negligence claim but did so without prejudice

to plaintiff’s filing a third amended complaint by a date certain. The court denied plaintiff’s motion to convert and to strike.

Licensure; Due Process Beck v. Austin, No. SA-19-CV00525-JKP (Pulliam, J., April 17, 2020).

Plaintiff brought a 42 U.S.C. § 1983 action against the Texas State Board of Dental Examiners Board Members in their individual capacities, alleging they denied plaintiff due process when suspending his general dentistry license. Specifically, plaintiff sought monetary damages as well as declaratory and injunctive relief regarding his allegation that defendants violated his due process rights by using their previous orders in their decision to suspend plaintiff’s license because a 1992 settlement agreement between plaintiff and defendants prohibits using those orders. Defendants moved to dismiss the case with prejudice. The court declined to hear plaintiff’s claims for declaratory and injunctive relief because of a related and on-going state court proceeding addressing plaintiff’s claims. Defendants argued that they perform a “quasi-judicial function” and are accordingly entitled to absolute immunity. The court considered the process used by defendants and used the Butz v. Economou factor test to determine whether defendants were performing a quasi-judicial function when deciding whether to suspend plaintiff’s license. The court concluded that defendants performed a quasi-judicial function when they decided to suspend plaintiff’s dentistry license and, accordingly, granted the motion to dismiss on the basis of immunity.

Subject Matter Jurisdiction; COVID-19 Emergency Orders Mega Vape, LLC v. City of San Antonio, No. SA-20-CV-0454-JKP (Pulliam, J., April 22, 2020).

Defendant, the City of San Antonio, advised plaintiff that its business is deemed “nonessential” under the City’s Declaration of Public Health Emergency Order. Plaintiff violated the City’s Order and remained open, which resulted in nine noted violations of the Order. Accordingly, the City revoked plaintiff’s Certificate of Occupancy. Plaintiff sent a letter challenging the City’s revocation. Plaintiff then brought suit against the City, alleging that the City violated plaintiff’s due process rights and other provisions of Texas law. Plaintiff requested either a temporary restraining order or a preliminary injunction, barring the City from revoking plaintiff’s Certificate of Occupancy “or otherwise interfering with its business.” The court provided a thorough overview of recent Western District and Fifth Circuit decisions discussing the COVID-19 pandemic, as well as related executive orders from the Texas Governor and the President.

The court determined that plaintiff’s complaint did not refer to the United States Constitution in its due process claim and remanded the case to state court.

Federal Question Jurisdiction; Magnuson-Moss Warranty Act; Preemption Payne v. Oakwood Homes, et.al, SA-20-CV00296-XR (Rodriguez, X., April 22, 2020).

Plaintiffs sued manufactured home dealers under the Magnuson-Moss Warranty Act (MMWA) in state court, specifically alleging damages below $50,000. Defendants removed the case, alleging federal question jurisdiction as to the MMWA claim and supplemental jurisdiction as to plaintiffs’ state law claims.

The court remanded for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c), (d). Suit may be brought under the MMWA in state or federal court, but the MMWA sets an amount-in controversy requirement of $50,000 for federal court. The Fifth Circuit has recognized several limitations in calculating the amount in controversy under the MMWA for cases brought under Texas law. For example, interest, costs, personal injury damages, punitive damages for breach of warranty claims, and damages for other

pendent state claims are not included in the calculation, but incidental and consequential damages are. Plaintiffs failed to state a specific damage amount in their pleadings, thereby requiring defendants to show by a preponderance of evidence that the amount in controversy was met. Defendants were unable to satisfy this burden, in part because they relied upon causes of action with independent remedies that could not be combined to satisfy the amount in controversy. The court also determined that the plaintiffs did not assert a separate claim for violation of the “HUD Code” (i.e., violation of the Manufactured Home Construction and Safety Standards Act, 42 U.S.C. § 5401 et seq., and 24 C.F.R. § 3280 and § 3282). While complete preemption may provide a basis for federal question removal of state law claims, courts have found that the HUD Code does not completely preempt state law claims.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.

Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.

Charles Carter practices commercial litigation with Dykema Gossett PLLC.

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