San Antonio Lawyer, May/June 2022

® May–June 2022

Official Publication of the San Antonio Bar Association

Judge Ron Rangel

Service ,

Family , Love

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contents ON THE COVER 7 Shaping the Life and Career of Judge Ron Rangel

By Bobby Barrera and June Moynihan

FEATURES 14 What Every Lawyer and Judge Needs to Know About Immigrant Children

By Linda A. Brandmiller

20 The Lawyer as Citizen in a Democracy Under Attack

By Michael Curry

24 Thomas Jefferson

By Harry Munsinger

7 Judge Ron Rangel photographed by Mewborne Photography at Woodlawn Lake Park, San Antonio

DEPARTMENTS 5

ReflexiÓnes

By Lawrence Morales, II

30 Fourth Court Update

By Justice Liza A. Rodriguez

31 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

May–June 2022

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San Antonio Lawyer® 3

®

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OFFICERS / DIRECTORS President Lawrence Morales, II President-Elect Donna McElroy Treasurer Steve Chiscano Secretary Patricia "Patty" Rouse Vargas Immediate Past President Dave Evans

4 San Antonio Lawyer® | sabar.org

Directors (2021-2023) Kacy Cigarroa Tiffanie Clausewitz Grant McFarland Jaime Vasquez Directors (2020-2022) Charla Davies Charles "Charlie" Deacon Loraine Efron Nick Guinn Executive Director June Moynihan

STATE BAR / SA BAR FOUNDATION State Bar of Texas Directors Tom Crosley Santos Vargas

San Antonio Bar Foundation Chair Lawrence Morales, II

LOCAL BAR ASSOCIATIONS Association of Corporate Counsel South/Central TX Bexar County Women’s Bar Association Christian Legal Society Defense Counsel of San Antonio Federal Bar Association—San Antonio Mexican-American Bar Association—San Antonio San Antonio Black Lawyers Association San Antonio Criminal Defense Lawyers Association San Antonio Trial Lawyers Association San Antonio Young Lawyers Association TEX-ABOTA, American Board of Trial Advocates—San Antonio William S. Sessions Inn of Court

ReflexiÓnes Friendship, Community, & Connections

By Lawrence Morales, II San Antonio Bar Association President

P

racticing law is not easy. As if our personal problems are not enough, it is our professional obligation to place our clients’ interests above our own. And most clients come to us only when they encounter frightening and unfamiliar circumstances. As in emergency rooms, clients typically walk into our offices only when things have gone terribly wrong. And they are relying on us to make it all better.

If that is not stressful enough, let’s not forget there are highly trained lawyers on the other side who are doing everything they can to make sure we fail. No, practicing law is not easy.

It is easy, though, to feel alone under these taxing circumstances; to feel that you are the only one with self-doubt.

While in law school, we were surrounded by other students who were taking the same classes, studying for the same exams, and experiencing the same adversity. This community of similarly situated students provided a comforting support system.

However, once we started practicing, we quickly realized that our clients and caseloads are all different. No two lawyers’ practices are identical, and it is easy to believe that no one else knows what you are going through. It is no wonder that 45% of attorneys experience depression during their career, and that as many as 36% of attorneys struggle with alcohol abuse.

I was recently asked by a skeptical lawyer why I spend so much time on bar activities. I responded that the bar association helps me know my professional challenges are not unique, and it is important to me that other lawyers know that as well. Research teaches that the most important factor in determining whether a person is happy is the quality of his or her social bonds. According to the Greek philosopher Epicurus: “Of all the things that wisdom provides for living one’s life in happiness, the greatest by far is the possession of friendship.” Our bar associations create communities of lawyers who are working on the same types of cases, who are dealing with the same stress, and who are experiencing the same self-doubt. Because true friendship is born out of shared experiences, the bar association is a wonderful place to build social bonds, which keeps me coming back. If nothing else, our bar associations prove that we are not alone.

And I am not just talking about SABA; our local affinity bars also do amazing work connecting lawyers and providing them

Lawrence Morales, II photo by Mewborne Photography

with resources to help them succeed. Of course, it is even easier to feel alone if you are enduring the challenges of practicing law as a member of a community that is underrepresented in the legal field. Therefore, SABA’s Committee on Equal Opportunity in the Legal Profession is working hard to build a more inclusive bar and strengthen our relationships with our local affinity bars.

Diversity in our leadership and membership brings a variety of unique and valuable skills and perspectives and is vital to the future of our organization.

One of the Equal Opportunity Committee’s first projects is the San Antonio Bar Association First-Gen Attorney Podcast, which is currently available on Spotify and the SABA website.

The podcast shares the inspiring stories of those who overcame the odds by becoming the first attorneys in their families. What inspired them to pursue a career in the law? Who helped them overcome obstacles? What advice would they give to the youth who are interested in pursuing a similar path? Thank you to Roy Barrera, Sr. and United States District Judge Jason Pulliam for serving as our first two guests. Their journeys to become, respectively, the first Hispanic Texas Secretary of State and the first African American United States District Judge in the Western District of Texas prove that dreams do come true.

Please contact me if you have recommendations for other firstgeneration attorneys you would like to hear from as guests on future episodes.

As my term as SABA President comes to an end, I am so grateful for the opportunity to serve. It has been such a joy to build relationships with so many amazing lawyers in our community, and to help other lawyers reconnect during the pandemic. I would also like to thank our SABA Executive Director June Moynihan and the entire SABA staff, who are all so valuable to our leadership and membership. Finally, I dedicate my term to my predecessor, the lovely Dawn Finlayson, who was tragically unable to complete her term as president. Like everything else, she would have done an amazing job as president. We miss you dearly, and I only hope that we have made you proud.

May–June 2022

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Shaping the Life and Career of

Service ,

Judge Ron Rangel

By Bobby Barrera and June Moynihan

Family , Love R

Cover and article photography by Mewborne Photography .

on Rangel was elected to the 379th District Court in 2008 and has served continuously since, including two cycles as Bexar County Local Administrative Judge and two cycles as the Criminal District Court Administrative Judge. The administrative judge terms lasted two years each. While serving a term as an Administrative Judge is never an easy job, Judge Rangel’s most recent turn was even more challenging than normal.

Judge Rangel was in his second term as Local Administrative Judge when the effects of the pandemic reached the courts in March 2020.

Bexar County judges worked together to determine appropriate safety protocols and technologies to keep the courts open.

As pandemic policies became politicized, Judge Rangel had the additional challenge of navigating the various levels of elected officials offering up conflicting policies for compliance.

Judge Rangel remembers with gratitude how he and his fellow judges were able to get, and keep, the courts open with minimal disruption.

“By statute, the courtrooms belong to the elected judges,” he said. “And thankfully, in Bexar County, the judges could generally reach a consensus of what we would require in our courtrooms, so Bexar County could provide a cohesive policy for court procedure, court visitors, and court business.”

The Local Administrative Judge has additional duties that include serving on strategic and planning committees, and the pandemic pulled Judge Rangel into even more committee work and briefings from public health, technology, and legislative work groups.

Through the onslaught, Rangel became well versed in time management, patience, and balancing the various and changing demands of parties, victims, attorneys, judges, court staff, and more.

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San Antonio Lawyer® 7

Top Row: High school football game with parents, Frances and Adam; newlyweds Ron and Patsy; Patsy and Ron with daughters, Alysha and Maddie.

Bottom Row: Ron’s graduation; Alysha, Patsy, and Ron.

One would think that the additional work from the pandemic would cause delays on other standing work or projects. But no. Because the Local Administrative Judge continues to maintain his or her respective courtroom duties, Judge Rangel has continued to sit as the judge of the 379th Criminal District Court. Since early 2020, in addition to handling his pandemic surge of Administrative Judge duties, he has conducted two murder trials and one capital murder trial. With the pandemic severely restricting the ability to do jury trials, Judge Rangel embraced the opportunities. “We had a small window to conduct in-person jury trials,” he explained, “so we had to focus on the more serious cases. The death penalty trial resulted in a death sentence and was the first fully live-streamed jury trial in Bexar County. This allowed the public the opportunity to gain a better understanding of jury trial procedures, which I believe is important to provide the public confidence in the system.”

Administering Justice: Literally Remaking “the Wheel” for the Poor In addition to his other duties, Judge Rangel also spearheaded the efforts to professionalize the Bexar County Indigent Defense Program, colloquially called “the wheel.” Statewide statistics reveal that indigent defendants do not receive either the same quality of representation or as beneficial resolutions of their cases as do defendants who have the resources to hire their own attorneys. The Bexar County Managed Assigned Counsel (MAC) Program that Judge Rangel installed was the first major overhaul of the process. It not only remade the court-appointment system for attorney representation and payment, but also reassigned multiple duties, once entirely on the judges, to an independent program director. In recognition of his ingenuity and dedication to this cause, in 2021 Judge Rangel won a five-year grant from the Texas Indigent Defense Commission and secured County funding to provide both effective legal representation and the resources necessary for the investigation and preservation of indigent rights in criminal cases. The MAC Program opened in January 2022.

Ana Amici, Bexar County Criminal District Court General Administrative Counsel, worked closely with Judge Rangel on the MAC implementation and funding project and found him well suited for a 8 San Antonio Lawyer® | sabar.org

job with more than a few obstacles. “Judge Rangel is thoughtful and decisive in his administration of ideas and resolution of conflicts, which is always complicated at the county government level,” she said. “He is patient, and most importantly, when he interacts with the various county colleagues and elected officials, he knows when to listen and when to talk. Judge Rangel truly cares about people and justice, and that shows in his commitment to doing right for the community he serves.”

Embodying Justice: Gentleness and Care Toward All Trial attorneys customarily evaluate a judge not only by the judge’s experience and knowledge of the law, but by his or her temperament while on the bench. Judicial polls nearly always include a question related to the judge’s “temperament or demeanor.” The term “judicial temperament” certainly includes impartiality and fairness, but more importantly describes the conduct that a judge exhibits in relation to courtroom participants. How a judge treats those over whom he or she presides—the attorneys, parties, witnesses, and especially the judge’s staff—is the real measure of the judge’s character and personality.

Judge Rangel’s good nature is the same on the bench as it is in his daily life, and people respond positively. “He is the closest thing to a rock star when he walks down the court halls!” Amici related. “Everyone wants to say hello and he greets everyone by name, followed by a genuine, ‘How are you?’” In the last Judicial Poll conducted by the San Antonio Criminal Defense Lawyer’s Association, out of the forty-three civil and criminal judges in Bexar County who were in the poll, Judge Rangel was Number One in the category of “Temperament.” Judge Rangel’s friend and law school classmate, Dean Diachin, Assistant Public Defender with the Appellate Division, summed those results up well: “Ron has been blessed with a supernaturally calm demeanor. The man is always on an emotionally even keel. Always. Thus, he has the perfect temperament for the job!”

That demeanor has been shaped by myriad meaningful experiences, both in his personal life and in his professional experience. Judge Rangel credits the upbringing by his parents, Adam and Frances Rangel, as the key to his understanding of how important it is to treat people with respect and dignity. In addition, his parents were instrumental

in forming his attitudes toward family, work, education, and most pertinently for his role as judge, his commitment and service to others in his community.

Shaped by Family Trials: Travels, Work, and Faith Adam and Frances were both from humble beginnings. Adam Rangel pursued certified clerical and accounting training, but employment options were limited in South Texas. In 1966, as newlyweds, they packed their ‘62 Chevy with their worldly possessions and left Portland, Texas, for Oakland, California, seeking work. Ninety minutes into their journey out of Texas, their car broke down, but the couple resolved to use most of their gas money for the car repair and to keep going. As they traveled toward California, they bartered and sold belongings to buy food and gas and arrived in Oakland with twenty-five cents to spare.

The Rangels lived with extended family while Adam worked at the Hunt’s Ketchup Factory during the week and as an amateur boxer on weekends for extra cash. The boxing matches paid $10 for the loser and $20 for the winner. Adam was proud of his frugality and remembers the time with a smile. “The boxers also got a bowl of chili after the match, so I got paid and had my dinner covered no matter what happened!” Soon after their arrival in Oakland, Adam was hired at the United States Post Office, and he and Frances moved into their own studio apartment. Baby Ron was born in 1968. Longing for their Texas family, Adam put in for a United States Post Office transfer, and they moved back to Portland, Texas. Three years later, Ron’s brother Roland was born, and four years after that, Ron’s youngest brother, Randy, followed.

Adam and Frances kept a traditional home in which homemaker Frances ran an efficient, warm, and disciplined home, while Adam worked hard to keep the bills paid and to give the family the best life possible. “Dad was always working a second and even a third job along with his Post Office job to cover the extras,” Roland said. With his paid boxing weekends behind him, Adam found a groove in rising early to work before he was due at the post office. “I got up at 4 a.m. because I had a paper route,” he said. “I would deliver papers at 6 a.m. and start my shift at the Post Office at 8 a.m. It was a good schedule, and I did that for a lot of years.”

Adam and Frances were also lay missionaries for the Catholic diocese.

Their service to their faith and community were, and continue to be, intertwined. Their life has always been in service to others. Beyond compelling them to serve, their strong faith would serve the Rangel family well through a very difficult family crisis and its accompanying challenges. When Ron was in junior high school, his father suffered a catastrophic stroke. He was rushed to the Corpus Christi Hospital, and when he came out of surgery, Adam was paralyzed from the neck down and on a ventilator for breathing. His wife, Frances. traveled to the hospital daily, and Ron quickly became the “man of the house” and kept his brothers on track with school and sports. A month later, Adam was transferred to a facility to undergo extensive rehabilitation, and he slowly learned again how to walk and maintain his daily living activities.

After two years, Adam was released to return to work. From that point on, Adam said faith and ministry became a constant part of his work and motivation. “I put my faith in God, and I trusted that whatever the situation—paralyzed or fully recovered—God was with me.”

Family of His Own: Studies, Surprise, and Love Shaped a Man. In school and at home, Ron was a voracious reader, most often choosing biography and history. He was inspired by the subjects and has distinct memories of being moved by the biographies of Abraham Lincoln and Dr. Martin Luther King, Jr. He was touched especially by leaders who he felt

were doing their calling in their work. At times, he considered a life in the priesthood or work as a history teacher or professor. His family describes him as a quiet leader—not necessarily shy, but certainly not seeking attention.

Ron was not just studious and servant-hearted, though. As Larry Moreno—a San Antonio attorney and childhood friend—recalls, “Ron is a totally funny guy! He was a cut up and made everyone laugh.” In his freshman year, Ron caught his new high school football coaches off guard when they distributed report cards in a team meeting. Moreno explained, “All the players had been friends since middle school, so we all knew Ron was smart.” But the high school coaches saw Ron as a bit of a class clown with all his wisecracks. As the coach was going down the list distributing report cards, he did a double take when he handed Ron his report card and noted to the team that Ron was at the “top of the class.” More than being liked, Ron was a scholar athlete and a respected leader among the players. “Even then, he always found a way to make people feel comfortable and that included using his sense of humor,” Moreno said. “He never teased at anyone’s expense. He naturally wants to bring people together. It is one of his most endearing traits.”

Ron was the student that everyone knew was going to succeed. He graduated at the top of his high school class and earned a scholarship to The University of Texas at Austin. Then Ron’s life changed in an instant.

Before he was to leave for school, he found himself a father of his first child, a daughter. He chose to forego college for the time being and took on the responsibilities of supporting his child and her mother. While their relationship was short-lived, Ron stuck around. He moved into Section 8 housing and shared custody of his daughter. He worked days at HEB and evenings at a convenience store to provide for his new family.

As he settled into parenting, he was able to start junior college in Corpus Christi and eventually graduated from St. Mary’s University in

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San Antonio with a degree in history. After he graduated, Ron took a job with Child Protective Services in Aransas Pass, where he witnessed firsthand the impact of poverty upon the indigent families he helped with services. While working at Child Protective Services and helping to raise his daughter, Ron worked on a Master’s degree in history at Texas A&M Kingsville.

During this time, he met Patsy—a young, vibrant teacher—at a party in Corpus Christi. He had had a long work week and recalls that his friends had to coax him to go out for the evening. He started talking to this “pretty girl,” as he recalls. “She was this smart, insightful woman, so full of life. Suddenly, it was morning, and we were still talking!” Ron and Patsy subsequently married and together had two daughters, Alysha and Maddie.

Justice in Action: Good Help, Close Family, and Faithful Service Shaped a Lawyer

Patsy and Ron

Maddie, Ron, and Alysha feeding the ducks at Woodlawn Lake Park.

Workplace Harassment Investigations

Near the end of his time at A&M Kingsville, Ron’s father and a graduate advisor encouraged him to go to law school, and in 1993 he started at St. Mary’s University School of Law. After graduation, Ron took a job with the Hidalgo County District Attorney, where he quickly moved up the ranks to become a felony prosecutor and gained valuable trial experience. In the late 1990s, the family moved back to San Antonio, where Ron started a private practice.

In 2000, Ron was at another lawyer’s office when he met legal secretary Tricia Austin. “Tricia was sharp and had great people skills,” he recalls. “I needed an assistant, so I asked her to come work for me!”

Austin laughed when describing her first day at Ron’s office, “The office was a bit more of a frat house than a law practice—stacks of paper surrounded the room along the wall. Much to my surprise, that was the filing system!” Austin quickly got the office in order and has been working for him ever since, first as his legal secretary and now as his court coordinator. Austin confirmed that Ron’s clients really felt that he listened to their issues and problems. “I would get confused because people would call and claim to be a friend or family member,” she said.

“I quickly learned that they all said that, because that is the way he made them feel. To this day, we still get calls at the courthouse from former clients claiming to be cousins.”

Soon after Ron and Patsy moved to San Antonio, Ron’s parents and brothers also relocated here from Portland. In an extension of their ministry work, Adam and Roland started Rangel Bail Bonds. “I pray with our clients and for all our clients,” Adam said of their work. “We are with people at their lowest moment, and we try to do our best to help restore some hope in their lives and pray for them to turn their lives around.” Roland added, “I know from experience how hard it is when a parent is unable to contribute. We hate to see the children suffer.”

Ron had been in private practice for ten years when he decided to run for judge. In his practice and through Adam and Roland’s work, Ron had observed with alarm that the most vulnerable members of the community were being what he called “warehoused” in prisons. “At the time,” he said, “80% of those arrested were indigent; recidivism numbers were unmanaged; and those with addiction were going to prison instead of treatment programs. I felt I could be more useful to the community on the bench.” (continued on page 12)

10 San Antonio Lawyer® | sabar.org

SERVING WITH FAMILY Back to School with Brand New Shoes Bobby Barrera and June Moynihan Judge Rangel’s father, Adam Rangel, was the eldest of six children, and he has vivid memories of going to school without any shoes. The Rangel family values education, and he remembers the embarrassment of walking into school wearing old, hand-me-down shoes or no shoes at all. “I never want a child to feel that shame,” Adam said. “Kids should be excited to go to school and learn!”

With the help of his sons, he launched the Adam Rangel Back to School Shoe Program in 1999. Since the program’s founding, the family has donated thousands of pairs of brand-new shoes to needy kids. “It is a labor of love,” Roland Rangel said.

“We do not have fundraisers or ask for community donations. I am in charge of collecting shoes throughout the year, and when it is back-toschool time, we host a few events and let the kids shop and choose their own shoes.” Students in need are identified through the Rangels’ network of church leaders and school counselors.

Students are invited to come to an event and given ample time to try on and shop for their new shoes. The extensive Rangel family and many of Judge Rangel’s bench colleagues volunteer at these shopping days to help students find their perfect pair.

Roland and his family members buy shoes throughout the year, keep an eye out for deals on popular brands, and make sure to stock up on common sizes. “We want to give the kids a nice pair of quality shoes that they will be proud to wear,” Roland said.

Due to the COVID-19 pandemic, the program was suspended for 2020 and 2021, but it will be back in full swing starting in the summer of 2022. Judge Rangel is very happy to be getting back to it. “Helping those in need feel better about their lives [and] hope for a better future makes me happy,” he said. “It is that simple.”

Randy, Adam, Roland, and Ron Rangel.

• Experienced, having conducted more than 25,000 mediations since 1989 with more than 850 years’ experience practicing law • Committed to the mediation process and devoted to the ethical practice of law • Covered by the AAM Member Insurance Group Policy, an arbitrator and mediator professional liability insurance Areas of Practice Appellate Bankruptcy Business/Commercial Civil Rights Condemnation Construction Consumer Education Employment & Labor Entertainment Family Farm & Ranch Health Care Insurance Intellectual Property International Medical Oil & Gas Personal Injury Professional Liability Real Estate Securities Taxation Title Insurance Wills, Trusts & Estates For more information, contact the local San Antonio Chapter. www.attorney-mediators.org/SanAntonioChapter Gary Javore - gary@jcjclaw.com Recommended by Judges and Attorneys John Boyce 210.736.2224 jkbiii@boyceadr.com Leslie Byrd 210.229.3460 leslie.byrd@bracewell.com Debbie Cotton 210.338.1034 info@cottonlawfirm.net Michael Curry 512.474.5573 mcmediate@msn.com Aric J. Garza 210.225.2961 aric@sabusinessattorney.com Charles Hanor 210.829.2002 chanor@hanor.com Danielle L. Hargrove 210.313.8811 dlh@hargroveadr.com Ronald Hornberger 210.734.7092 rhornberger@pg-law.com Gary Javore 210.733.6235 gary@jcjclaw.com Jerry King 210.771.0359 jking@beerkinglaw.com

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San Antonio Lawyer® 11

(continued from page 10)

Justice Served: Campaigns, Rulings, Loss, and Love Shaped a Judge.

Judge Rangel’s daughter, Alysha, recalls campaigning with her family as part of their shared life. “It just became normal pretty quickly,” she said. “I learned to talk to strangers, and we knew that—if it was election time—we were going to attend lots of events.”

Roland loves campaigning for his brother. “It is easy to tell the truth, and I think people can sense when you are sharing the truth,” he said.

“The truth is my brother has excellent character. He is committed to the job as a judge. He dispenses justice fairly but recognizes that people can be redeemed and, with the right help, can become productive members of the community.”

Judge Rangel feels like he is in the right role. Reflecting on the personal reward of his service on the bench, he said, “It is meaningful and humbling when otherwise total strangers approach me and remind me they were in my court (as a defendant, victim, or witness), and they thank me. It means my efforts worked to let them know that they are a part of our human society, and that people do care about them.”

More than admiring Judge Rangel’s temperament, Dean Diachin has seen his heart for all to have justice come through on the bench.

“I’ve often heard Ron comment that criminals and victims, alike, usually come from the same underprivileged segment of society,” Diachin said. “I believe he ran for the bench not because he wanted to be someone important, but because he wanted to do something important . . . for that segment of society.”

Alysha, Maddie, and Ron Rangel.

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Judge Rangel can sometimes agonize over decisions because he wants to ensure that he does what is right. His Court Coordinator Tricia Austin has seen it firsthand. “He sees the good in people, but he has had to accept that he can’t save them all,” she said. “So, he takes the time to make sure they understand the reasons for his rulings and, above all else, that they feel like they were heard. It’s amazing how many defendants actually end up thanking him, even after being sentenced to prison.”

In 2018, Judge Rangel’s beloved wife, Patsy, passed away from cancer.

Their youngest daughter Maddie had just graduated from high school.

Ana Amici recalls that the memorial service was filled with family and friends, but also with many people who only knew Ron professionally but wanted to show their support. “Ron gave a eulogy that only a man who is truly at peace with his life could have given,” Amici said. “His words reflected a love and relationship with Patsy which few people are ever blessed enough to know or experience. I heard several people say how they wished that they had that much love in their lives, to be remembered the way he spoke about Patsy.”

His daughter Alysha remembers her mom’s death as bringing the family closer together. “Of course, it changed us all,” she said. “Losing my mom has made my dad, and all of us, more attentive when we spend time together.” As to how it affected her dad, she added,

Truly said, and the citizens of Bexar County, rich and poor, are lucky to have as judge such a man who epitomizes the true meaning of “public servant.” Judge Rangel recalls from his studies that many philosophers believe that how a city or state treats the most vulnerable, which includes those in our criminal justice system, is a reflection of our society. As he explains: Every case is unique. Every case is about real people dealing with real issues that have influenced their lives and their loved ones. How we treat them is a reflection of who we are as a society and what we value.

We should strive to show compassion to the vulnerable and help them as much as we are able. It does not mean we ignore accountability or punishments. But we can demand a system that delivers accessible and fair justice and treats every party with dignity, compassion, and a path to rehabilitation where applicable.

Ana Amici says it well for those he has served from his seat on the bench and from off of it. “Judge Rangel is a man of unending sharing and courage in the pursuit of justice. It is an honor to work with him.”

Bobby Barrera is the owner of the Law Office of Bobby Barrera, PC and a former President of the San Antonio Bar Association. June Moynihan is the Executive Director of the San Antonio Bar Association.

We each have our moments when it hits us, but we are there for one another, and my dad carries himself with such strength and grace. He’s always been compassionate, but even that has expanded in him. My dad lost his partner of twenty-five years, something I can’t fathom. But our family is healing and has stayed strong. And I know not every family can pull together when they lose such a vital piece of the family. I know I am lucky to have him as my dad.

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San Antonio Lawyer® 13

T

he Special Immigrant Juvenile Status (“SIJ”) law permits undocumented children who have come under the jurisdiction of a juvenile court and meet other requirements to become lawful permanent residents. Congress created the statute as a humanitarian gesture to aid abused, abandoned, and neglected children, no matter their citizenship status, and the statute received bipartisan support both initially and during subsequent amendments that broadened the safeguards for such children.1

Who Is a Special Immigrant Juvenile?

In relevant part, the SIJ law defines “Special Immigrant Juvenile” as: (J) an immigrant who is present in the United States — (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a state or juvenile court located in the United States, and whose reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; [and] (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the child’s best interest to be returned to the child’s or parent’s previous country of nationality or country of last habitual residence.

8 U.S.C. § 1101(a)(27)(I).

To qualify for Special Immigrant Juvenile Status, an applicant must be under the age of twenty-one at the time of filing with the United States Citizenship and Immigration Services (USCIS), unmarried, and under juvenile court jurisdiction.2 There are two parts to the SIJ process: state court and immigration petitions.

Part 1: State Court Proceedings

What Every Lawyer and Judge Needs to Know About Immigrant Children

By Linda A. Brandmiller

14 San Antonio Lawyer® | sabar.org

The name of the court is not determinant. Rather, the role of the court is what matters for purposes of SIJ eligibility. The broad definition of “juvenile court” and the jurisdiction it may have under federal law includes children in dependency (child welfare), guardianship, family court/custody, as well as delinquency proceedings (alleged violations of the law by youth).

A child may live with one parent and still qualify. Note, however, that neither parent will be eligible for legal status through the child at any point in the future, even after the child becomes a United States citizen. Under current law, though, the child can petition siblings after becoming a citizen, and then that sibling could presumably petition the parent after becoming a citizen.

The relevant question for SIJ eligibility is whether a judge, under the applicable law of the state, has found abuse, abandonment, neglect, or some other similar finding. Examples of abuse, abandonment, neglect, or a similar basis under state law are case-specific but, without limitation, may include traveling 2,500 miles alone to come to the United States, not going to school in their home country, physical abuse, literal abandonment, death of a parent, or no parent on the birth certificate.

Suit Affecting the Parent-Child Relationship. The state court order cannot be solely for the purpose of getting the child lawful immigration status, which is one reason why adoption creates such a problem.3 A suit affecting the parent-child relationship (SAPCR) is much better than a declaratory judgment under the Texas Civil Practice & Remedies Code

because a declaratory judgment has no teeth. The USCIS will almost always determine that the declaratory judgment was granted solely for an immigration benefit because it provides no relief for the child— especially for children over age eighteen.

For the child to qualify for SIJ status, a judge must issue an order finding that the child’s reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under state law. It does not require formal termination of parental rights.

Additionally, a SAPCR allows for child support, conservatorship, and name change—issues unrelated to legal status and specifically in line with state laws regarding support and protection of children. According to USCIS guidance, the judge’s order, or other documents submitted, must provide a basic statement of the facts that supported the order, sufficient to establish that there was a factual basis for the court’s findings. The court or an administrative agency must determine that it is not in the child’s best interest to be returned to his or her home country. In order for a child to qualify for SIJ status, the juvenile court judge must sign a special order, prepared by the child’s attorney, stating that all the findings required for SIJ status have been made.

Young Adults. Under Tex. Fam. Code § 101.003(a), “child” or “minor” means a person under eighteen years of age who is not and has not been married, or who has not had the disabilities of minority removed for general purposes. Further, under Section 101.003(b), in the context of child support, “child” includes a person over eighteen years of age for whom a person may be obligated to pay child support. A young adult aged eighteen to twenty who is enrolled in high school (not GED) will get the benefit of the extended definition of “child” and make SIJ status a viable option for legal status.

Using this extended definition of “child,” Bexar County District Court Judge Peter Sakai first pointed out that “family” courts had

jurisdiction over eighteen-year-olds who were enrolled in high school.4 With state court orders, those young adults were approved by USCIS for SIJ status. Then, in 2015, without warning, USCIS implemented a policy that Texas child support orders did not provide “relief ” from abuse/abandonment/neglect, and therefore did not make such a child dependent on the juvenile court. The result was that, in Texas, almost no one who obtained a state court order between the ages of eighteen and twenty-one was approved for SIJ status. Several hardheaded lawyers, however, continued obtaining state court orders and submitting the petitions believing that one day, USCIS would reverse this policy.

Lagos-Aguilera v. Mayorkas, et al.5 In 2021, TKR Law Group in Austin, spearheaded by Tania Rosamond with assistance from David Walding, filed two federal lawsuits under the Administrative Procedure Act to challenge this policy. One case—Lagos-Aguilera v.

Mayorkas, et al.—was filed in the District of Maryland and concerned seven plaintiffs who were all “children” (as that term is defined by the Texas Family Code and federal immigration law) under the age of twenty-one when they obtained the necessary SIJ findings in a Texas SAPCR order. Each plaintiff had filed a petition for SIJ status, which had been denied on the grounds that the plaintiffs had failed to establish dependency upon a juvenile court. USCIS reasoned that because the plaintiffs were over eighteen years of age, the Texas Family Court was not functioning as a “juvenile” court. The federal litigation successfully concluded in January 2022, and USCIS reversed its prior position, which had denied petitions for those immigrant minors between the ages of eighteen and twenty-one. The TKR Law Group also obtained assurances that, upon request, USCIS would reopen similar cases and review them without the need for litigation, and that future cases would be adjudicated using the correct standard.

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San Antonio Lawyer® 15

ENDNOTES

Osorio-Martinez v. Att’y Gen. of the United States of Am., 893 F.3d 153, 169 (3d Cir. 2018).

2 Adoption Note: Adoption is almost never the best option for an immigrant child. Many adoptive parents erroneously believe they can “pass” their United States citizenship status to their adopted child (filing a petition, paying for a home study, etc.). However, there are very strict rules regarding petitioning an adopted child and the family-based petition process is generally not available to children from Hague countries.

Hague Convention criteria must be complied with prior to the child’s entering the United States and cannot be remedied once the child is in the country. Under the correct procedure, children adopted from foreign countries enter the United States with permission after a home country assessment and approval from the home country’s child protective agency. Adoptive parents must show two years of formal legal custody and two years of joint residence with the child. Additionally, the child has to be adopted before the age of sixteen. Therefore, in most cases, while adoption of an immigrant child is legal, it provides no benefit to the child in obtaining legal status and, ironically, prejudices the child in the SIJ process because, once adopted, the child’s “abandonment” issues— which would have provided logic for SIJ status—are largely remedied.

3 See Note 2, supra.

4 Tex. Fam. Code § 154.001.

5 Lagos-Aguilera v. Mayorkas, et al., 1:21-cv-01899 (D. Md.).

6 https://travel.state.gov/content/dam/visas/Bulletins/visabulletin_ february2022.pdf.

7 Godinez, et al. v. U.S. DHS, et al., No. 20-00828-CV-W-GAF (W.D. Mo. Feb. 10, 2021).

1

Part 2: Immigration Process The state court order, complete with SIJ findings and recommendation that the child not be returned to the country of origin, is then sent to USCIS as part of the child’s petition for SIJ Status (Form I360). This takes approximately six months for approval. After approval, the child is issued a “priority date” and is then “in line” for a visa. The United States Department of State issues a visa bulletin every month, which determines the applications being reviewed. The SIJ priority date is in the employment-based fourth category.6 Once the date on the visa bulletin is after the child’s priority date, the child may file for residency.

In April 2022, for instance, the USCIS was working on petitions submitted from Central American countries on or before May 1, 2017.

After a lawsuit in the Western District of Missouri in 2021,7 it is now also possible for those youths with an approved Form I360 petition for SIJ status to apply for a work permit without having to wait for their priority date to be current. This particularly benefits those petitioners aged sixteen to twenty-one because they can get a Social Security number and a Texas driver’s license and can work part-time while waiting for residency.

Conclusion If you are preparing a divorce petition, and there is a child without immigration status, SIJ may apply. If you are representing a child in a criminal proceeding who has been abused/abandoned or neglected, SIJ may apply. If you encounter an immigrant child living with a stepparent, SIJ may apply. If you come across an unaccompanied minor, SIJ may apply. If you find an immigrant child with no father on the birth certificate, SIJ may apply. If you are involved in a CPS case, SIJ most definitely may apply. These children are everywhere in our legal, educational, and social systems, and they are not being adequately screened for an important remedy designed exclusively for the purpose of assisting them in obtaining legal status.

Linda A. Brandmiller is an Immigration Attorney in San Antonio who is happy to assist with the SIJ process on either the state court or immigration side.

16 San Antonio Lawyer® | sabar.org

May–June 2022

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San Antonio Lawyer® 17

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San Antonio Lawyer® 19

The Lawyer as Citizen in a Democracy Under Attack

By Michael Curry

Democracy Under Attack When we think of the death of a democracy, we most often think of the sudden overthrow of a government that results in fascism, communism, or military rule. Since the end of the Cold War, however, it has been more common for democratic governance to end through the actions of democratically elected leaders who methodically subvert democratic institutions and erode democratic norms step by step, often within the law. These leaders gain control of the institutions and use them to consolidate and maintain power.

Anti-democratic policies are often passed by a compliant legislature or approved by courts that have lost their independence. There are still elections, and people still vote, but only a veneer of democracy remains.

Those are findings from a comparative study and historical analysis of democracies worldwide.1 The study paid particular attention to the dynamics that either sustained or imperiled democratic governance. The authors of that work identify four broad categories of autocratic behavior that should concern supporters of a democratic order: 20 San Antonio Lawyer® | sabar.org

(1) Th e rejection or questioning of the democratic rules of the game. Examples of this type of conduct include violating the Constitution, canceling elections, or suggesting the need to restrict fundamental civil or political rights or organizations. Additional examples include undermining the legitimacy of election results (or refusing to accept them) or endorsing the use of extraconstitutional or violent means to force a change in the government.

(2) Denying the legitimacy of opponents.

This category includes describing opponents as an existential threat to national security, the Constitution, or our way of life; or baselessly suggesting that they are subversives, foreign agents working with foreign governments, unpatriotic, or criminals who have or will violate the law and are, therefore, unqualified for office.

(3) Toleration or encouragement of violence. This category refers to behavior such as maintaining connections to violent armed gangs or militias, refusing to condemn other significant acts of

political violence in the past, or tacitly endorsing violence by supporters against opponents.

(4) A willingness to curtail the civil liberties of opponents or the media.

For example, supporting expanded libel or defamation laws; supporting laws restricting protests, government criticism, or particular civic or political organizations. Other actions within this category are threatening legal or punitive action against critics or the media or praising repressive measures of other governments.2 We also have to be concerned about actions that break what have been called the “soft guardrails of democracy.”3 The “guardrails” are the norms necessary for maintaining a democratic order. They keep one individual or faction from sidelining the opposition or permanently consolidating power and ending the competition. These unwritten rules are not enshrined in the Constitution. Instead, they are enforced by public, political, and institutional disapproval. Examples of critical democratic norms are the principles of mutual

toleration and institutional forbearance.

Mutual toleration is the notion that competing parties accept one another as legitimate rivals vying for power and influence—not enemies to be permanently sidelined. Delegitimizing the opposition invites or excuses authoritarian or anti-democratic measures, even violence, to keep opponents out of power. Institutional forbearance refers to the restraint in exercising power—avoiding actions that technically comply with the law but violate its spirit.

Senate approval of the opposing party’s qualified nominees and the restrained use of the filibuster rule and impeachment powers would be examples of institutional forbearance that strengthen democracy. Violation of these norms has the opposite effect.

All of these autocratic or norm-breaking actions are too dangerous to ignore. They undermine key attributes of democracy such as reoccurring free and fair elections that provide accountability and enable the peaceful transfer of power between competing factions.

They also retreat from our commitment to the rule of law—the idea that societal and governmental decisions are made according to established rules that apply to everyone, regardless of their status or position, and administered by impartial courts. And finally, this kind of conduct challenges the protection of core individual rights such as the freedom of speech, the right to vote, and freedom of the press, which enable full participation in society and advance other democratic ideals.

For context, we must remember that our democratic system of government has faced challenges almost from the outset.4 Extreme political combat between the Federalists and the Republicans, including passage of the Alien and Sedition Acts in the 1790s, and the deadlocked election of 1800, had many believing the union would not endure but would instead dissolve into armed conflict or secession. That is what happened in the 1850s when irreconcilable divisions over slavery led to the Civil War. The 1890s saw democratic backsliding with the disenfranchisement of Black voters as a means of vanquishing the opposition and consolidating power. And in the 1970s, the misuse of executive power to target political opponents triggered the Constitutional crisis known as Watergate.5 That we survived these past challenges— sometimes at great cost—is cold comfort to those who look at the warning signs today and worry about our democratic future. The question raised is whether we are in another period of democratic crisis. Any doubt about that was dispelled in January 2021, when a campaign of corrosive and unfounded attacks

Can we remain silent when the impartiality or motives of judges are wrongfully impugned, when the press is attacked in an attempt to undermine their credibility and stifle criticism, when voting rights are burdened, or votes diluted through redistricting for partisan political gain, when false accusations undermine the legitimacy of elections, or when power is abused, and norms are broken to manipulate membership on our courts?

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San Antonio Lawyer® 21

We can be truth-tellers, town-criers, problem solvers, and leaders in the fight to reestablish democratic values. As lawyers, we have a platform to individually and collectively engage the public.

on the legitimacy of opponents, election outcomes, processes, and officials culminated in a violent assault on Congress designed to prevent the counting of electoral votes. This coordinated attack on democratic legitimacy sought to block the lawful and peaceful transfer of power through popular will—the sine qua non of a democracy. This event was not a storm that cleared the air. The origins and repercussions of that day are with us still and represent a continuing threat to our democracy.

The question presented, then, is this: In a time when our democratic system of governance is under attack, what is our duty as lawyers?

The Duty of Citizen Lawyers In a nation built on the rule of law, the fact that less than one-half of one percent of the

population6 have formal legal training defines the unique place that lawyers have in a democracy.

We can be proud of the indispensable role that lawyers have played in challenging laws and actions that undermine democratic rights.

Lawyers as lawyers and lawyers as judges have been among the most effective guardians of democracy. But what about anti-democratic actions falling within the bounds of law and, therefore, outside the reach of the courts? What about the lawyer as citizen?

Our profession must accept its special obligation to promote democratic values. Our training, experience, traditions, and stature put us in a unique position as citizen lawyers to advocate for a democratic society. We are committed to the rule of law and the pursuit of verifiable truth, both ideas that are central not just to our legal system, but also to our political order. We are trained in processes dedicated

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to fact-finding and are bound by standards demanding truth-telling. We understand the Law’s reach and its limits, the importance of Constitutional rules and societal norms, and what happens when those are ignored, whether in the courtroom or society. We have taken an oath to support the Constitution.7 We get up every day with the mission to prevent or solve problems and to anticipate intended and unintended consequences. Our lifeblood is separating the proven from the unproven, the relevant from the irrelevant, and fact from opinion. We know how to get at the truth and how to work in processes that establish the truth. We understand people. We have learned incrementally, through countless interactions, what informs people, what motivates people, what deters people, what inspires people—and what does not. We know how to craft persuasive arguments and how to take and defend positions. We have put all of these skills to good use, assisting clients in avoiding or resolving legal problems. We can use these same skills to address issues in the larger society and defend our democratic order.

Recent events have reminded us of the power of the systematic repetition of misinformation and the serious threat it poses to a democratic society. Of particular relevance, then, is our experience, training, and commitment to pursuing empirical or factual truth. The relationship between truth and democracy is long and complicated and involves continuing questions of who gets to decide what is true, by what means, and to what ends.8 But that tension does not change the fact that belief in truth, the pursuit of truth, and telling the truth are ideals crucial to a functioning democracy. Truth-seeking necessarily involves not just the collection of reliable facts but identifying, rebutting, and discouraging errors and falsehoods—especially, for our purposes, disinformation campaigns.

Our first obligation is to reinforce the principle that there is a distinction between truth and falsity, that that distinction matters, and that seeking the truth and speaking it are democratic values and ethical commitments critical to creating and maintaining a level of community trust necessary for democracy to work.

Can we remain silent when, for example, the impartiality or motives of judges are wrongfully impugned, when the press is bullied and attacked in an attempt to undermine its credibility and stifle criticism, when voting rights are burdened, or votes diluted through redistricting for partisan political gain, when false accusations undermine the legitimacy of elections, or when power is abused, and norms are broken

to manipulate membership on our courts?

Can we stand by while actors, including elected officials, generate falsehoods on matters big and small with such regularity and audacity that it cripples the exchange of ideas, normalizes lying and misinformation in public life, and makes it difficult, if not impossible, to achieve a shared view of reality necessary for democratic governance? It is respectfully submitted that the answer to those questions is, “No, we cannot.”

What We Can Do We can be truth-tellers, town-criers, problem solvers, and leaders in the fight to reestablish democratic values. As lawyers, we have a platform to individually and collectively engage the public. We can use opinion pieces and letters in local and national newspapers, magazines, and online to set the record straight, push back against political misinformation, and promote democratic principles. We can amplify our voice by organizing our colleagues or creating task forces, standing committees, or sections around democracy issues. We can organize or support voter registration drives and encourage our clients to register and vote. We can visit with public officials and their staff about laws and policies that impact democratic rights and processes. We can insist that they and their colleagues reestablish the unwritten democratic norms of mutual toleration and restraint in exercising power in our politics and our government.

We can testify at the legislature, commissions, and city councils against anti-democratic legislation, ordinances, or procedures. We can take the opportunity to speak to neighbors, schools, and civic groups about the importance of synthesizing information from multiple sources in pursuit of the facts and about engaging in the political process with passion but also mutual toleration, respect, and restraint. We can lend our support and our voice to prodemocracy candidates and policies and can vociferously oppose anti-democratic policies or sentiments and the candidates that espouse them. We can honor, support, and assist our fellow lawyers who are on the front lines defending our democratic rights in court.

We can accept the challenge of running for political office and encourage and support law students and young lawyers to make room in their lives and practices for public service. At the very least, we can model good citizenship by actively participating in our democratic society and encouraging and assisting others in doing so. What we cannot do is nothing.

Conclusion We return to the question: what is our duty as citizen lawyers when our democracy is under attack? While no single profession or group is charged with (or can take credit for) resisting attacks on democratic values, our grounding in the law, which is the superstructure of democracy, calls us as citizen lawyers to be leaders in the fight.

Michael Curry is a 1976 graduate of the University of Texas School of Law and a member of the Austin and San Antonio Bar Associations. A San Antonio native, he lives in Austin and limits his practice to mediation.

ENDNOTES Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing 2018); see also, Anne Applebaum, Twilight of Democracy—The Seductive Lure of Authoritarianism (Doubleday New York 2020). Recent events in Ukraine reflect an attack on a democracy from an outside force. The referenced study and this article deal with something more insidious— challenges to democracy from within.

2 See Levitsky and Ziblatt, supra n. 1; see also Madeleine Albright, Fascism—A Warning 253 (Harper Collins 2018) (historical view of one form of authoritarianism with a list of warning signs that includes: catering to 1

our prejudices by suggesting we treat those outside our ethnicity, race, creed, or party as unworthy; nurturing our anger against others; encouraging contempt for our governing institutions; and seeking to destroy our faith in an independent press and professional judiciary).

3 See Levitsky and Ziblatt, supra n. 1.

4 It must be acknowledged that our country was not founded as a complete democracy—women and Black men were excluded from participating—a fact that continued for most of this country’s existence. Also, the Constitution contains anti-majoritarian elements such as the Electoral College, and baked-in unequal representation through the United States Senate with its equal allocation of Senators by State regardless of the State’s population. See Lawrence Lessig, They Don’t Represent Us (Dey Street Books 2019).

5 See Suzanne Mettler and Robert C. Lieberman, Four Threats—The Recurring Crises of American Democracy (St. Martin’s Press 2020); John Meacham, The Soul of America—The Battle for Our Better Angels (Random House 2018).

6 Jackson Teague and Leah Witcher, Lawyers as Leaders, 81 Tex. B.J. 88 (Feb. 2018).

7 Tex. Gov’t. Code § 83.037(a).

8 See Sophia Rosenfeld, Democracy and Truth—A Short History (Univ. of Penn. Press 2019); Jonathan Rauch, The Constitution of Knowledge—A Defense of Truth (Washington, D.C., Brookings Institution Press 2021).

See also, Timothy Snyder, On Tyranny—Twenty Lessons from the Twentieth Century 65 (New York: Tim Duggan Books 2017) (“To abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so.”).

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San Antonio Lawyer® 23

FAMOUS LAWYERS IN AMERICAN HISTORY

1743–1826

T

homas Jefferson was born on April 13, 1743, near Charlottesville, Virginia.1 His father was a successful planter and his mother, Jane Randolph Jefferson, a member of a prominent Virginia family. Jefferson received his early education from private tutors and a Presbyterian school, studying Latin, Greek, French, history, science, and the classics. His father died when Jefferson was fourteen, and he inherited approximately five thousand acres of Virginia land and around two hundred enslaved people. Jefferson enrolled in the College of William and Mary at Williamsburg, Virginia, in 1760, at the age of sixteen and was a serious student.2 He studied natural philosophy and writers such as John Locke, Francis Bacon, and Montesquieu.

After graduating, Jefferson studied law with George Wythe, the most prominent attorney in Virginia, passed the Virginia bar exam, and began practicing in 1766. He represented plantation owners in cases involving land sales and disputes about enslaved people.

House of Burgesses and Continental Congress. Jefferson was elected to the House of Burgesses, the legislature of colonial Virginia, in 1769. That same year, he began construction of Monticello, his hilltop mansion, on land inherited from his father, 24 San Antonio Lawyer® | sabar.org

Thomas Jefferson

By Harry Munsinger

and he remodeled it throughout his life. In 1772, Jefferson met and married Martha Wales Skelton, an attractive young widow whose dowry doubled his land and the number of people he enslaved.3 He was elected as a delegate to the Continental Congress and arrived in Philadelphia on June 21, 1775, in a carriage pulled by four horses and attended by three enslaved people dressed in livery.

He was the youngest member of the Virginia delegation to the Continental Congress and was relatively unknown at the time.

Declaration of Independence. Jefferson showed himself to be an excellent writer in a pamphlet he published in 1775 entitled A Summary View of the Rights of British America.4 In the pamphlet, Jefferson wrote that Parliament and King George had no authority to govern America, and the colonies should be free to control their own destiny.

Jefferson supported independence and drafted a resolution outlining the reasons for separating from England, but when Congress made changes before adopting his resolution, Jefferson left in disgust and went back to Monticello to tend to his wife Martha, who was experiencing a difficult pregnancy. He returned to the convention on May 14, 1776, and was selected to draft the Declaration of

Independence because he was the best writer at the convention. The committee included John Adams, Benjamin Franklin, Robert Livingston, Roger Sherman, and Thomas Jefferson. They delegated the drafting to Adams and Jefferson, and Adams assigned the initial writing to Jefferson.

No one at the convention thought the Declaration of Independence would be an important document, so Adams did not feel he was giving up anything by assigning the work to Jefferson. Adams spent his time leading debates on the floor of Congress because he felt debating independence was the more important job. Jefferson drafted the Declaration of Independence in just a few days, using materials he collected or had written earlier. He showed his draft to Adams and Franklin, who made a few minor changes and then submitted it to the Continental Congress for debate and passage. The Congress made several changes and deleted materials dealing with King George. Jefferson regarded any change to his document a debasement but had no authority to object. On July 4, 1776, Congress approved the Declaration of Independence and had copies made, and the members of the Continental Congress signed it on August 2, 1776. They kept the

Declaration of Independence secret because it was an act of treason against England, and they would be hanged if the Declaration were discovered. The most famous part of the Declaration of Independence states: We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain inalienable Rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.5 This statement about equal rights for all men eventually triggered reforms in America, including without limitation the abolition of slavery and giving black people and women all rights of citizenship.

Governor of Virginia. Jefferson was elected Governor of Virginia in 1779 and dealt with economic and political problems caused by the Revolutionary War. Virginia suffered serious economic damage because an English blockade limited the export of tobacco and cotton. Jefferson sent Virginia’s best militia to Detroit just before Benedict Arnold led an English army through Virginia, attacking Charlottesville, and almost capturing Jefferson at Monticello. The legislature passed a resolution asking for an investigation into why Jefferson had allowed the English to invade Virginia, but the matter was dropped when emotions cooled.

His actions as governor were later criticized during Jefferson’s two campaigns for President, although he won both elections.

Jefferson’s wife Martha died on September 6, 1782.6 He promised he would never remarry and stayed true to that promise.

Jefferson in Paris. To recover from his grief, Jefferson went to France as a minister in the summer of 1784.7 He had difficulty learning to speak French, although he read the language easily. He loved the food, culture, and architecture in Paris, and formed a close relationship with John Adams, although they would become bitter rivals for the presidency in later years. Jefferson assumed primary responsibility for American affairs in France after the Revolutionary War,8 and he hoped France would continue to support an independent United States. The King of France closed French ports to American shipping, however, and imposed high tariffs on American tobacco and cotton to protect domestic producers and raise revenue. Jefferson gained diplomatic experience during his time in France, which helped him later as Secretary of State and President.

Jefferson witnessed the French Revolution firsthand but failed to see how serious the situation was. He was optimistic that the King, nobles, and people of France would reach a compromise and maintain the monarchy, so he was surprised when Paris erupted in riots and was appalled by the violence of the mobs as they stormed government buildings.

Jefferson continued to believe a peaceful compromise would occur and was shocked by the French Reign of Terror. He eventually realized it was dangerous to stay in Paris and returned to America because he was interested in a cabinet appointment and wanted his daughters educated in the United States.

George Washington offered Jefferson the post of Secretary of State in 1789, and he accepted.

Secretary of State. Jefferson’s service as Secretary of State coincided with turbulent times in American foreign policy, and every decision Jefferson made set a precedent because he was the first man to hold the post.9 During the early decades of the new government, Jefferson and James Madison cooperated in establishing the Democratic Republican Party to oppose the Federalist policies of Alexander Hamilton and Washington. Jefferson and Hamilton emerged as the dominant personalities in Washington’s cabinet, with Hamilton favoring a strong central government with international ties, while Jefferson wanted a weak central government, strong states’ rights, and no foreign alliances.

With the support of Jefferson, Madison led the fight against Hamilton’s push for a national bank. Jefferson believed there are three major types of governments— the European model based on a powerful monarch; the English model which looks to the people and Parliament for guidance; and the Native American model based on common values, small communities, and a local leader. Jefferson preferred the Native American model because he felt American

society was homogeneous and the people shared common values. Jefferson believed Shay’s Rebellion, which had prompted other Founding Fathers to declare the need for a strong central government, was a sign of American political strength, and issued his famous statement: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”10 His feelings toward Hamilton were personal and political. Personally, Jefferson was jealous of Hamilton because he was a military hero, and Jefferson had not served in the Revolutionary War. Politically, Hamilton and others attacked Jefferson for his Francophile leanings, while Madison and James Monroe defended Jefferson and attacked Hamilton and Adams as monarchists who wanted to reinstate an English King in America.

Jefferson also opposed making the federal government supreme and believed Hamilton’s scheme to establish a national debt was really a secret plan to make the central government more powerful. Jefferson wanted to eliminate public debt, stop issuing federal bonds, and close the National Bank. Adams and Jefferson were the leading candidates to replace Washington when he retired. After a bitter political campaign, Adams won New England, Jefferson carried the South, and the Middle Atlantic states split. When the votes were counted, Adams collected more votes so he became President, and Jefferson Vice President, creating an uneasy truce between Federalist Adams and Democratic Republican Jefferson that would fracture in 1800, when they both ran for President again.

Jefferson on Slavery. Jefferson claimed he was a spokesman for the common man, as opposed to Federalist elites such as Adams and Hamilton. That was ironic because Jefferson lived as an aristocrat in his mansion at Monticello, tended by hundreds of enslaved people. Jefferson owned nearly eleven thousand

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“We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain inalienable Rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

acres of land in Albemarle and Bedford counties, but he had to sell land to pay off part of his debts. Jefferson was frequently in debt and short on cash despite owning thousands of acres of land and hundreds of enslaved people.

Although enslaved people did all the work on his plantation, Jefferson was conflicted about the institution of slavery. He opposed slavery because it was incompatible with his republican values of equality, but at the same time, he relied on an enslaved workforce to work his plantation. Moreover, Jefferson never actively supported abolition of slavery in America. He was guilty of wishful thinking when he argued that slavery would naturally disappear in time.

From the Revolution until after the end of the Civil War, Americans debated contentiously about how to emancipate enslaved people and how to contend with a free black population.

Jefferson believed white and black Americans could not live together in harmony because the history of slavery would forever separate the races. America is still dealing with the ramifications of race-based slavery.

President Jefferson. Jefferson and Aaron Burr both ran for President in 1800 against Adams. Hamilton wrote a scathing attack against Adams that damaged Adams’ chance for a second term. Jefferson and Burr tied for electoral college votes at seventy-three each.

The Constitution requires that, in case of a tie, the House of Representatives chooses electors from each state who select a President. After thirty-six ballots, Jefferson won over Burr.

His election as President produced a less powerful federal government, compared with the Washington and Adams administrations, because Jefferson believed in a central government that allowed states more power to run their own affairs.

In his inaugural address, Jefferson suggested that the bitter party squabbles of earlier administrations should stop. He wanted to make the federal government small and simple rather than powerful and complicated.

Jefferson inherited a nation at peace with England and France, few national debts, a powerful United States Navy of fifty ships, and a flourishing economy. Jefferson selected James Madison as Secretary of State and Albert Gallatin as Secretary of the Treasury. Madison saw eye to eye with Jefferson on foreign policy, and Gallatin was a match for Hamilton on fiscal issues.

Jefferson continued Washington’s staff model for the federal government, where analyses of issues went through the cabinet head before presentation to the President

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for a decision. Jefferson only convened his cabinet when there was a crisis; otherwise, he worked individually with each cabinet member, making decisions once the issues were analyzed and options were developed. Most business in Jefferson’s administration was done in writing rather than through face-to-face discussions.

Jefferson tried to stay in the background and not exercise power openly. He felt Congress should be the leading branch of government as opposed to the President or the Judiciary.

His attitude toward Native Americans was paradoxical, like his attitude about slavery. Jefferson celebrated the cultures and government of Native American tribes and championed the idea that all men are equal, while relocating Native American tribes to reservations far away from their original hunting grounds and continuing to enslave people all his life.

Two months after Jefferson assumed the Presidency of the United States, Tripoli declared war on American shipping. In the 1780s, Secretary of State John Jay had instructed Adams and Jefferson to resolve a conflict in the Mediterranean by meeting with an envoy from the Sultan of Tripoli. The envoy told them that if America wanted to avoid war, it must pay thirty thousand pounds to his country and three thousand pounds to him as a bribe.11 Jefferson and Adams both felt that was too expensive, but the envoy said it was his lowest offer and they would have to negotiate treaties with other Barbary States for comparable sums or face continued attacks.

Jefferson recommended that America wage naval war rather than pay tribute, but Adams argued that since America had no navy, it would be cheaper to pay rather than build ships and fight a war.

Jefferson had always disliked paying tribute to the Barbary Pirates, and now that he was President and had a powerful navy at his disposal, he went to war with the pirates.

He dispatched a fleet of heavy frigates and several hundred United States Marines to the Mediterranean to fight the Barbary Pirates, and they stopped bothering American shipping.12 The Louisiana Purchase. Because Napoleon was fighting most of Europe, he needed money and decided to sell French possessions on the North American continent to America. When Spain sold its rights to the Mississippi River, New Orleans, and the Louisiana territory to Napoleon, Jefferson immediately contacted France and began negotiating to buy the entire package. He was so upset about French control of the Louisiana territory that he considered signing an alliance with England and declaring war on France

to remove it from the continental United States if France would not sell the Louisiana Territory to America. Jefferson sent James Monroe to Paris to negotiate the purchase of the Louisiana Territory and authorized him to pay up to $10 million for the land. Jefferson even considered occupying New Orleans with the American army to convince France to sell. None of that was necessary, though, because Napoleon needed money.13 He agreed to sell the Louisiana Territory for $15 million. Jefferson immediately commissioned Meriwether Lewis to organize an expedition to explore and map the new territory.

Jefferson and Marshall. Throughout his Presidency, Jefferson quarreled with Chief Justice John Marshall. Jefferson opposed Marshall’s doctrine of judicial review of Congressional statutes and the Supreme Court’s right to interpret the United States Constitution. He thought Marshall had overstepped his judicial authority and said so at every opportunity. However, as Madison pointed out, Marshall had convinced his colleagues on the Supreme Court of the doctrine of judicial review of Congressional statutes and the right of the Supreme Court to interpret the Constitution, so there was nothing Jefferson could do about it.

Madison advised Jefferson to move on, but to no avail.

Scandal and Disappointment. Newspaper editors considered the private life of any important political figure fair game, including President Jefferson. The editor of the Federalist Port Folio was the first to raise the sensational charge that Jefferson was having sexual relations with Sally Hemings, a woman he enslaved. The allegations were a reporter’s dream because they could not be disproved, were sensational, and sold newspapers. Modern DNA evidence has confirmed that Sally Hemings bore six children, all fathered by Jefferson. At the time,

the accusations were plausible because many enslavers forced enslaved women into sexual conduct. Thus, the Federalists were able to level the scandalous accusations to damage Jefferson’s character.

Jefferson enjoyed many successes during his first term as President, but his second four years were a disaster due to the war between France and England. Jefferson closed American ports to English and French shipping during the war, which caused a major recession in America and made him unpopular. In addition, Jefferson had to deal with a conspiracy by Aaron Burr, his former Vice President, to establish an independent nation in the American Southwest. Jefferson was so eager to find Burr guilty that he violated the man’s constitutional rights. Chief Justice John Marshall saved Jefferson from himself by finding Burr not guilty of treason against the United States in a trial before the Supreme Court. Burr’s reputation was already ruined by his shooting of Alexander Hamilton in a duel, and Marshall believed there was no need to punish him further.

After Jefferson’s second term, he returned to Monticello to retire and manage his plantation. He rode his favorite horse every day inspecting his lands, entertained guests, and continued his correspondence with notable Americans, including John Adams, with whom he reconciled after they both retired. Their mutual friend Benjamin Rush engineered the reconciliation in January 1812.

Jefferson’s Last Years. As he aged, Jefferson’s health declined, and he feared senility and a loss of independence. Jefferson worked hard later in life to clarify his attitude toward slavery and consolidate his place in history. He claimed to be morally opposed to slavery based on the principles of equality for all men. Jefferson also wrote in his autobiography that he opposed slavery and

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that all black people should be free. Contrary to these grand words, however, Jefferson’s behavior showed an ambivalence toward slavery. Despite pressure from his Northern friends to support the abolition of slavery, Jefferson refused to support freeing enslaved people until the end of his life. Upon his death, he freed only a few enslaved people, most of whom were related to Sally Hemings.

When the issue of slavery in the new state of Missouri came before Congress, Jefferson avoided the issue by saying there was no plan for compensating enslavers and no clear idea of what to do with all those freed people afterward. The growing enslaved population in America made gradual emancipation unlikely and unworkable. Jefferson believed that allowing slavery to spread into the Western states would dilute Southern power and eventually result in the abolition of slavery in America, but many viewed this idea as wishful thinking. He was also distressed that Northerners had the high moral ground on slavery because he wanted that honor for himself. However, Jefferson was in a bind: he was a Southern enslaver who believed freeing enslaved people would not improve their situation, and at the same time, he believed all

men were equal. He never found a satisfactory solution to this dilemma.

Jefferson faced serious financial difficulties in 1819 when the country went into recession, and he had to sell his magnificent library to Congress for $23,950 to pay some of his debts. During his last years, Jefferson designed and oversaw construction of the University of Virginia and felt it was one of his proudest achievements. In 1976, the American Institutes of Architecture recognized the University of Virginia as the “proudest achievement of American architecture in the past two hundred years.” Jefferson devoted his time and energy to designing and constructing the University the same way he devoted himself to rebuilding Monticello. He lobbied the Virginia legislature for money, oversaw the hiring of faculty and the building of a library, and designed both the campus and the curriculum. Essentially, he created a model university for America. In typical Jeffersonian fashion, he developed a plan that was far reaching, brilliant, and unworkable.

Jefferson died on July 4, 1826—fifty years after he signed the Declaration of Independence and on the same day that John Adams died.14

KFG22_CS_013_SA_Lawyer_May_4o9x4o9_033122_mar_PR.indd 1

28 San Antonio Lawyer® | sabar.org

3/31/22 11:40 AM

arry Munsinger has served H on the San Antonio Bar Association’s publications committee for many years.

During that time, he has been a frequent contributor to San Antonio Lawyer. Although Harry recently retired from law practice, he continues to be a frequent contributor to this magazine!

ENDNOTES Thomas Jefferson, History.com Editors https://www.history.com/topics/us-presidents/thomas-jefferson.

2 Id. 3 Id. 4 Jefferson, T., A Summary View of the Rights of British America, Yale Law School. https:// avalon.law.yale.edu/18th_century/jeffsumm.asp.

5 Declaration of Independence: A Transcription. National Archives. https://www.archives.gov/founding-docs/declaration-transcript.

6 First Lady Biography, Martha Jefferson, firstladies.org www.firstladies.org/biographies/ firsstladies.aspx?biography-3.

7 Jefferson in Paris, France Today Editors. https://www.francetoday.com/culture/jefferson_in_paris/.

8 Id. 9 Thomas Jefferson, Secretary of State, United States Department of State. https://2001-2009.state.gov/secretary/former/40907.htm.

10 Thomas Jefferson to William Smith, Library of Congress Exhibits https://www.low.gov/ exhibits/jefferson/105.htm#.

11 Josh Clark, What Was America’s First Terrorist Threat? How Things Work/Culture/History/History vs. myth.

12 Josh Clark, What Was America’s First Terrorist Threat? How Things Work/Culture/History/History vs. myth.

13 Louisiana Purchase, History.com https:// www.history.com/topics/westward-expansion/louisiana-purchase.

14 Thomas Jefferson and John Adams died, July 4, 1826. This Day in History https://www. history.com/this-day-in-history/thomasjefferson-and-john-adams-die.

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Fourth Court Update

Attorney’s Fees in Fee-Shifting Cases

By Justice Liza A. Rodriguez

A

s a practitioner, if you are seeking attorney’s fees in a Texas trial court, you should be aware of the Texas Supreme Court’s opinion in Rohrmoos Venture v. UTSW DVA Heathcare, LLP, 578 S.W.3d 469 (Tex. 2019).

In Rohrmoos, a commercial lease provided that “the prevailing party shall be entitled to an award for its reasonable attorneys’ fees” from the non-prevailing party. Id. at 476. At trial, the tenant’s attorney testified about some of the factors set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997): (1) he had twenty years of litigation experience; (2) a reasonable and necessary number of hours to spend on the case would be 750-1,000; and (3) his hourly rate was $430. Rohrmoos, 578 S.W.3d at 476. Thus, he testified that a reasonable fee would be between $300,000 and $400,000.

Id. However, he also testified, “This case, for whatever reason, has not been worked up in a reasonable fashion. . . . But because of that, the fees in this case are much closer—my fees are much closer to 800—over $800,000.”

Id. He explained that he was required to “search literally millions of emails to find the documents” entered as evidence, produce “about [sixty] bankers boxes of documents,” participate in “more than forty depositions,” and respond to “‘four or five motions to compel’ and a forty-page motion for summary judgment.” Id. at 503-04. He also admitted, “I’ve done things that have run on up the cost.

The simple reality is, both parties probably have to take some blame.” Id. at 504. The jury awarded the full $800,000 for trial court representation plus appellate attorney’s fees.

See id. at 476.

In considering whether the tenant was entitled to recover its “reasonable attorneys’ fees,” the supreme court explained several principles related to attorney’s fees in feeshifting cases: (1) they are designed to compensate the prevailing party for its reasonable losses from litigation; (2) only fees that are reasonable and necessary for the legal representation will be shifted to the non-prevailing party—and not necessarily the amount contracted for between the prevailing 30 San Antonio Lawyer® | sabar.org

party and its attorney; (3) a party must be represented by an attorney; and (4) even if a statute or agreement provides only that the attorney’s fees must be “reasonable,” courts should interpret that term as “reasonable and necessary.” See id. at 487-90.

After analyzing federal and state opinions on fee-shifting awards, the supreme court concluded that the lodestar method was the appropriate way to calculate reasonable and necessary attorney’s fees. See id. at 496. Under the lodestar method, the claimant is required to prove the “reasonable hours worked in the case multiplied by a reasonable hourly rate.”

Id. at 498. “Sufficient evidence includes, at a minimum, evidence of (1) particular services performed; (2) who performed those services; (3) approximately when those services were performed; (4) the reasonable amount of time required to perform the services; and (5) the reasonable hourly rate for each person performing such services.” Id. “[T]here is a presumption that the base lodestar calculation, when supported by sufficient evidence, reflects the reasonable and necessary attorney’s fees that can be shifted to the non-prevailing party.”

Id. at 499. The base lodestar can be enhanced or reduced by other factors, so long as those “considerations [are not] already incorporated into the base calculation.” Id. at 501. The court noted that “[c]ontemporaneous billing records are not required,” but they “are strongly encouraged.” Id. at 502 (emphasis in original).

The supreme court then concluded that the testimony from the tenant’s attorney was too general to establish that the requested fees were reasonable and necessary. Id. at 505.

“Without detail about the work done, how much time was spent on the tasks, and how he arrived at the $800,000 sum, [the attorney’s] testimony lacks the substance required to uphold a fee award.” Id. The court emphasized that while attorneys “should not have to take the stand for days and testify to every detail of a three-year-long case,” they “must provide more than what [the attorney] has said here.”

Id.

Justice Liza A. Rodriguez has served on the Fourth Court of Appeals since January 1, 2019.

Justice Rodriguez has been licensed since 1997, is a graduate of St. Mary’s University, former Bexar County Assistant District Attorney, and Criminal Defense and Family Law Practitioner and served as Presiding Judge of County Court at Law #8 and Bexar County’s first DWI Court.

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Federal Court Update

Western District of Texas Court Summaries

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be 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.

Negligence Per Se; Summary Judgment Robinson v. Melton Truck Lines, Inc., No. SA-20-cv-0269-JKP (Pulliam, J., Jan. 18, 2022).

In this vehicle accident case, the plaintiff and defendant were travelling in the same direction in parallel lanes on the highway when another individual entered the highway, causing the defendant semi-truck to swerve into plaintiff’s lane and forcing plaintiff off of the road. The plaintiff asserted claims of negligence, gross negligence, and negligence per se based on violations of the Texas Transportation Code.

The defendant moved for summary judgment, and the court granted summary judgment as to gross negligence and negligence per se, but denied it as to ordinary negligence.

On the issue of negligence per se, the plaintiff alleged the defendant was negligent per se because he allegedly violated, as a matter of law, Texas Transportation Code §§ 545.401 and 545.060, which in pertinent part provide that “a person commits an offense if the person drives a vehicle in willful or wanton disregard for the safety of persons or property” and that “[a]n operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” The court cited a recent order from a sister court in the Western District that relied on Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998), in which the Texas Supreme Court observed: “Texas courts have previously held that a statute that requires a driver proceed safely imposes

on the driver a duty of reasonable care, thus precluding a negligence per se instruction.”

The court also cited a recent state appellate opinion, which explained “for a jury instruction regarding negligence per se to be appropriate, the violation must not leave any room for the driver to make a discretionary call” and must be a “standard of conduct statute,” not simply a standard of care that is no different from the ordinarily prudent person standard. Applying that authority, the court held the cited sections of the Texas Transportation Code “clearly do not define the prohibited conduct” but leave “room for the driver to make a discretionary call.” The court concluded the alleged violations of the Texas Transportation Code would not form a cause of action for negligence per se, and granted summary judgment on that claim, but the statute could be considered by the jury in determining whether the defendant’s conduct was ordinarily negligent.

Preliminary Injunction; Sovereign Immunity and Standing Longoria v. Paxton, No. SA-21-CV-1223XR (Rodriguez, J., Feb. 11, 2022).

The plaintiffs, Texas election officials, brought an action arising out of an omnibus voting bill, Senate Bill 1 (“SB1”), enacted on August 31, 2021, which added provisions to the Texas Election Code providing for “anti-solicitation” of mail-in ballots and civil enforcement provisions for an election official’s violations of the Election Code.

Section 276.016(a)(1) (the “anti-solicitation provision”) provides, “A public official or

election official commits an offense if the official, while acting in an official capacity, knowingly: (1) solicits the submission of an application to vote by mail from a person who did not request an application,” and § 31.129 provided for civil penalties for violations, including “termination of the person’s employment and loss of the person’s employment benefits.”

The election officials claimed they want to engage in speech that encourages eligible voters to submit timely vote-by-mail applications and that the provisions enacted by SB1 caused them to fear to engage in such speech. They presented evidence that, before enactment of SB1, they engaged in voter outreach efforts to encourage eligible voters to vote by mail, and they now feared doing so would result in civil and/or criminal penalties. The plaintiffs sought a preliminary injunction to enjoin the defendants—three district attorneys and the Texas Attorney General—from enforcing the provisions, arguing that together they constitute unlawful viewpoint discrimination in violation of the First and Fourteenth Amendments.

The court granted the preliminary injunction, rejecting the defendants’ arguments that the court lacked subject matter jurisdiction based on plaintiffs’ lack of standing and the doctrine of sovereign immunity. The court also denied the defendants’ requests that the court exercise its discretion to abstain from exercising jurisdiction.

The court held the plaintiffs met their burden of establishing standing by plausibly alleging an injury in fact in the form of a chilling of their protected speech based on their credible fear of enforcement, which was May–June 2022

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San Antonio Lawyer® 31

Federal Court Update

traceable to the defendants, and that an order enjoining the enforcement of the provisions would redress the future threatened injuries to the plaintiffs’ protected speech.

On sovereign immunity, the court held the plaintiffs need only establish that the defendants, “by virtue of their office,” have “some connection” with the enforcement of the challenged law to establish an exception to the sovereign immunity doctrine. The court held the plaintiffs established the exception as to the criminal district attorneys, holding the language of the Election Code and authority from the Texas Court of Criminal Appeals confirm that “county and district attorneys have authority to compel or constrain a person’s ability to violate the law.” As to the attorney general, the court pointed to the express provisions of the Elections Code which “envision, and likely require, the Attorney General’s participation in enforcement activities” with sections providing that the Attorney General “shall investigate” and “may conduct an investigation on the officer’s own initiative to determine if criminal conduct occurred.” The court further pointed to the Attorney General’s recent civil lawsuits filed against election officials, where he invoked the State’s “intrinsic right to enact, interpret, and enforce its own laws,” concluding the Attorney General “has demonstrated a willingness to enforce civil provisions of the Election Code regulating applications to vote by mail against election officials,” which was sufficient to demonstrate “some scintilla of ‘enforcement.’”

Concluding the plaintiffs satisfied their burden of establishing a substantial likelihood that they will succeed on the merits of their claims that the provisions constitute unlawful viewpoint discrimination in violation of the First and Fourteenth Amendments (both facially and as applied to plaintiffs’ speech) for which the irreparable injury the plaintiffs will suffer absent injunctive relief substantially outweighed any harm potentially suffered by the defendants, the court entered the injunction, enjoining the defendants from enforcing the provisions and ordering that the defendants may not criminally or civilly prosecute the plaintiffs during the pendency of the lawsuit.

(The defendants appealed the preliminary injunction to the Fifth Circuit Court of Appeals.

The Fifth Circuit temporarily stayed the preliminary injunction pending appeal and, on March 21, 2022, certified several questions to the Texas Supreme Court.)

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Joinder; Texas Survival Statute; Texas Wrongful Death Statute

Discovery in Personal Injury Suits

Roundtree v. City of San Antonio, No. SA18-CV-01117-JKP-ESC (Pulliam, J., Feb. 17, 2022).

An eighteen-year-old was shot and killed by the SAPD. His adoptive mother, Ms. Roundtree, brought a survival action on his behalf. The City filed a document titled as a motion to dismiss, attaching evidence, which the court converted to a motion for summary judgment on the issue of necessary parties under FRCP 19, which it reviewed under FRCP 12(b)(7). Rule 19 evaluates whether a non-party impedes the court’s ability to accord complete relief among the existing parties or whether a non-party has claimed an interest relating to the subject of the action. Here, the City complained that Ms. Roundtree failed to join all necessary parties, namely the deceased’s biological parents, the deceased’s girlfriend and her child, and all other potential known or unknown heirs. The court denied the motion. First, the City had no evidence that it had confirmed, much less tried to confirm, whether the deceased was married and/or had any children, despite the ability to take a short deposition and/or to use FRCP 35 to compel a paternity test. The City ignored the wording of the Wrongful Death Statute that allows a parent to bring an action “for the benefit of all,” which is what Ms. Roundtree did. Further, there was no evidence presented that Ms. Roundtree was unwilling to preserve or pursue the girlfriend’s child’s claim; however, Ms. Roundtree represented that the child had no claim because he was not the deceased’s child, a fact that was bolstered by statements made in the girlfriend’s voluntary dismissal of claims. Finally, because biological parents of the deceased had their parental rights terminated, they were divested of any legal rights and duties with respect to the deceased and, for purposes of the Wrongful Death Statute, are not the deceased’s parents.

Ms. Roundtree demonstrated that she had the capacity to bring the survival action, having pled that she is the deceased’s parent and that no administration of her son’s estate is pending and none is necessary. Having died intestate and without any children or spouse, the deceased’s estate descends and passes equally to his mother and father. Ms. Roundtree testified that at the time of her son’s death, he was 18 and still in high school and therefore had no significant assets or significant earnings prior to his death.

Acuna v. Covenant Transp., Inc., SA-20-CV01102-XR (Rodriguez, J., Jan. 10, 2022).

In this personal injury lawsuit, the court examined several competing discovery motions related to the defendants’ attempts to obtain information from third parties. The plaintiffs had elected not to bill their insurance company for almost $700,000 in past medical expenses.

The court denied medical provider’s motion to quash the request for its fee schedules.

The court relied on Texas Supreme Court precedent holding that medical providers’ negotiated rates and fee schedules with private insurance and public-entity payors are relevant and discoverable in personal injury litigation on the issue of reasonableness of a plaintiff’s claimed damages, and finding that the information sought was not “trade secret” because such information, regularly provided in explanation of benefits, is not “secret.” Even if the information were secret, it is nonetheless discoverable because it is “necessary for a fair adjudication” of the defense that the damages are not reasonable. The court denied the motion to quash and granted the motion to compel, but limited the scope of the request to the year of the medical care and the type of services provided. The court reminded the medical provider that it could designate the information confidential or attorney’s eyes only and thereby obtain the protections of the protective order already in place in the case.

The court allowed discovery of the plaintiff’s treatment records from certain pre-injury doctors’ visits but would not permit discovery of associated billing records.

Education; Summary Judgment R.B. v. NEISD, No. SA-20-CV-01441-JKP (Pulliam, J., Feb. 16, 2022).

This case was an appeal from a Texas Education Agency (TEA) decision. C.B., the minor plaintiff, is a twelfth-grade academically gifted student in the North East Independent School District (NEISD). C.B. suffers from Attention Deficit Hyperactivity Disorder, Generalized Anxiety Disorder, and Major Depressive Disorder. NEISD never gave C.B. academic accommodations to account for these disabilities. C.B.’s symptoms worsened over time, and C.B. was eventually removed from public school to enter a private school that accommodated C.B.’s needs. C.B.’s parents raised a complaint with the TEA, alleging that: (1) NEISD failed to properly

identify C.B. as a potential candidate for special education services; (2) NEISD thus denied C.B. a free and appropriate public education; (3) NEISD violated the plaintiffs’ procedural rights; and (4) NEISD violated C.B.’s rights under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). The TEA hearing officer found for the plaintiffs on issue 1 and for NEISD on issues 2 and 3, and dismissed issue 4 for lack of jurisdiction. After exhausting their administrative remedies, the plaintiffs filed suit in the United States District Court.

On summary judgment, the court concluded that NEISD was on notice of C.B.’s disabilities because C.B.’s parents had informed the district repeatedly of C.B.’s diagnoses; the district was also aware of C.B.’s increased absences and academic decline as C.B.’s symptoms worsened. Thus, the district should have evaluated C.B. for special education accommodations. However, the court held that the district did not deny C.B. a free public education because C.B. was still able to function in a standard academic setting despite the disabilities. Finally, the court held that the plaintiffs failed to carry their burden on summary judgment for their Rehabilitation Act and ADA claims to survive, because they did not to show NEISD’s failure to evaluate C.B. for special education services was the result of professional bad faith or gross misjudgment. The court granted NEISD’s motion for summary judgment and dismissed all claims with prejudice.

Construction; Related Entities; Dismissal SCIVIC Eng’g Am., Inc. v. Spark Power Corp., No. 5:21-CV-00572-XR (Rodriguez, J. Jan. 4, 2022).

This lawsuit arises from a construction dispute over electrical work performed by Spark Southwest for SCIVIC Engineering America, Inc. (“SCIVIC”). General contractor SCIVIC contracted with subcontractor Spark Canada to work on a project at the Toyota manufacturing plant in San Antonio.

Spark Canada’s subsidiary, Spark Southwest, performed the work. After a dispute over payment and the quality of services rendered, SCIVIC terminated its relationship with Spark Southwest and sued for breach of contract, among other claims. It initially only named as defendant Spark Canada, but added Spark Southwest as a defendant in amended pleadings; SCIVIC did not distinguish

between the actions of, or claims against, the parent company or subsidiary.

Spark Southwest counterclaimed for breach of contract, quantum meruit, and unjust enrichment. It also asserted claims against Toyota for foreclosure of Spark Southwest’s lien on the Project, and against both SCIVIC and Toyota for violations of various provisions of the Texas Property Code.

SCIVIC and Toyota moved to dismiss Spark Southwest’s claims for failure to state a claim under Rule 12(b)(6).

SCIVIC argued that Spark Southwest’s breach of contract claim must fail because the contract was signed by “Spark Power Corporation,” not Spark Southwest. The court denied the 12(b)(6) motion as to the contract claim because it was not clear which of Spark Canada or Spark Southwest signed the contract. SCIVIC further argued that Spark Southwest’s quantum meruit and unjust enrichment claims should be dismissed because the breach of contract claim would bar recovery on those theories. The court rejected that argument because the various claims are not mutually exclusive, and litigants may properly seek alternative relief. These claims

thus survived the 12(b)(6) motion; the court disposed of various other causes of action for failure to state a claim.

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

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

Jeffrie B. Lewis is Assistant General Counsel with Zachry Group.

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