The Judge Biery Reader

On Religious Issues

The Medina Valley ISD Case [SA-11-CA-422-FB] (Injunction limiting religious speech at high school graduation ceremony).

David Lat, “A Judge of the Day, Back in the News: Fred Biery,” Above The Law (June 3, 2011) (“Judge Biery’s ruling banned students and other speakers from using religious language in their speeches.”) See Schultz v. Medina Valley ISD, 2011 WL 13234770 (W.D. Tex. June 1, 2011).

Robert Rivard, “Pray at Graduation – Pray More for Graduates,” San Antonio Express-News (July 3, 2011) (“I like men and women who read books more than those who study polls. I like leaders who serve as a way of giving back to their communities rather than those who maneuver to live off their communities. Federal Judge Fred Biery. . . is my kind of leader. He is as likely to cite Shakespeare or Samuel Clemens in his signature written opinions, many of which do not make the news but do make my reading list.. . . Since his [Medina Valley] ruling, Biery has been subjected to threats, obscenities and derision.”).

Tracy Idell Hamilton, “Biery’s the man Gingrich just loves to hate,” San Antonio Express-News (Jan. 28, 2012) (In response to the Medina Valley ruling, Newt Gingrich states: “I would do no more than eliminate Judge Biery. . . and the Ninth Circuit.”).

APPENDIX II to Schultz v. Medina Valley ISD, 2012 WL 517518 (W.D. Tex. Feb. 9, 2012) (Judge Biery on why there is an Establishment Clause in the Constitution, inventing the word “newtralized”).

Hon. Fred Biery, “Schultz v. Medina Valley ISD: When Cultures and Beliefs Collide (Or How Air Conditioning Changed Texas),” San Antonio Lawyer (Sept/Oct 2013).

Kashmir Hill, “Judge of the Day: Fred Biery,” Above The Law (April 8, 2008) (a riff on Cornerstone Christian Sch. v. Univ. Interscholastic League, WL 2097477 (W.D. Tex. Apr. 1, 2008)). In an opinion peppered with Biblical citations, Judge Biery denies an application by Cornerstone Christian for admission to the state University Interscholastic League. According to Above the Law:

“Based on his photo and impressive religious verbiage, we nominate Fred Biery to replace Charlton Heston as Moses.”

On Voting Rights

Texas League of United Latin Am. Citizens v. Whitley, 2019 WL 7938511, at *1 (W.D. Tex. Feb. 27, 2019) (enjoining the Texas Secretary of State from an attempted voter purge; referring to a press release by the Texas Attorney General: “While the Court would prefer that political rhetoric be newtralized to more civil discourse, Article III of the Constitution bestows no power on the federal judiciary to make wishes come true.”); see also Guillermo Contreras, “San Antonio judge takes Texas to task over voter purge effort, calling it a ‘solution looking for a problem,’” San Antonio Express-News (Feb. 27, 2019).

Texas Democratic Party v. Abbott, 461 F. Supp. 3d 406 (W.D. Tex. May 19, 2020), vacated and remanded, 978 F.3d 168 (5th Cir. 2020)(Judge Biery finds that fear of contracting COVID-19 was a disability that allowed for early mail-in voting); on remand Texas Democratic Party v. Scott, 617 F. Supp. 3d 598 (W.D. Tex. 2022) (granting defendant’s motion to dismiss and concluding, “Judicial decisions, even those of the Supreme Court, can be overruled or affirmed in a venue called the voting booth. Accordingly, matters can be decided by those who exercise: the right to vote, that is. In the physical realm it is called ‘use it or lose it.’”)

Fred Biery, “Commentary: It’s up to the people to preserve democracy,” San Antonio Express-News (Sept. 29, 2022) (“Yes, it is burdensome to be a citizen in a democracy and inconvenient to go to the polls or serve on a jury, though those who gave their lives so we could do those things would wonder why they did if we don’t. Democracy dies not always by conquering armies but by sloth.”)

On Civility

Patrick Danner, “San Antonio judge warns attorneys to behave or he’ll make them kiss in front of the Alamo,” San Antonio Express-News (Aug. 16, 2018).

Joe Patrice, “Federal Judge Wants Ted Boutros To Make Out With Plaintiff’s Counsel In Front Of The Alamo . . . And That’s Not Necessarily The Most Insane Part Of This Order,” San Antonio Express-News (Aug. 17, 2018) (discussing Judge Biery’s NonKumbaya Order that counsel do not need to hold hands and sing Kumbaya, while warning against using acerbic shrillness on the pleadings).

On Sentencing Philosophy

Alta Lee Kemper v. United States of America, SA-92-CR-13-FB. “This case calls out for justice to be tempered with mercy. Alta Lee Kemper is but one more example of this country’s original sin and its legacy of families torn apart on the auction block, children separated from their parents, Jim Crow, segregation, unstable childhoods and mass incarceration. That history reverberates to this day in sociological chaos and an American caste system wrought by human error and hubris into which Mr. Kemper did not choose to be born . . . .”

Compare and contrast United States of America v. Charles Augustus Banks, IV, SA-16-CR-618-FB (financial advisor convicted of stealing seven million dollars from Tim Duncan; sentenced to four years in prison); see also Ann Marsh, “Advisor who defrauded NBA legend Tim Duncan gets 4 years in prison, takes verbal beating from Judge,” Financial Planning (May 25, 2023).

On the Death Penalty

Adanandus v. Johnson, 947 F. Supp. 1021, 1030 (W.D. Tex. 1996), aff’d, 114 F.3d 1181 (5th Cir. 1997) (170-page opinion denying habeas relief in a death penalty case: “The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death, collectively imposed upon the predators among us through the might of the State. Having democratically given vent to normal human emotions in the face of incredibly heinous acts, the legal exercise of the power to end a life requires careful scrutiny by some objective entity bound by the rule of law. The alternatives to the imposition of the ultimate punishment within a framework of due process are the anarchy of a lynch mob or the whim of a dictator and the concomitant devolution of society to the level of those deserving execution.”)

On the Environment

Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 202 F. Supp. 2d 594 (W.D. Tex. 2002) (reluctantly ruling in favor of mall developers in an environmental case: “The reaping and reckoning in public health and quality of life which will come to our children and grandchildren will echo from what we incrementally sow into their environment and whether we come to an epiphany of the interdependence and interrelatedness played out in the mystery of the dance called life. . . . Despite my personal lamentation about failing to nurture nature, my oath and the judicial process require decisions to be made within the parameters of the law, notwithstanding my own view that we have quite enough of the sterility of steel and concrete stores, several now standing vacant.”)

On Writing Style

Aquifer Guardians in Urb. Areas v. Fed. Highway Admin., 779 F. Supp. 2d 542 (W.D. Tex. 2011) (Judge Biery’s lament on immigration from the north), see also Nathan Koppel, “Court Jesting: These Sentences Don’t Get Judged Too Harshly,” The Wall Street Journal (June 29, 2011) (discussing creative writing in federal court opinions, featuring Judge Biery’s Aquifer Guardians opinion)

35 Bar & Grille, LLC v. City of San Antonio, 943 F. Supp. 2d 706 (W.D. Tex. 2013) and Allstars v. City of San Antonio, No. CIV.A. SA-03-CA-356-, 2003 WL 21204471 (W.D. Tex. May 19, 2003) (the strip club opinions, chock-full of double-entendres and bad puns); see also Rick Casey, “Cut the judge some slack on doubleentendres,” San Antonio Express-News (May 4, 2013) (“I cut Biery some slack [on the double-entendres in the Allstars opinion]. Having covered many trials in my career, I am sensitive to the uncommonly boring nature of being a judge. Most trials and other judicial proceedings are 80 percent tedium, 10 percent lawyerly testiness and, at best, 10 percent interesting disclosures.”).

Amended Order Granting Summary Judgment, Paul Revere Insurance, SA-95-cv-1168 FB (Dec. 18, 1996; not published; available on request) (opinion with poem written in the style of Longfellow’s “Midnight Ride of Paul Revere”).