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Official Publication of the San Antonio Bar Association
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SABA President David Evans : AN UNCOMMON LEADER
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contents ON THE COVER 6 SABA President David Evans: An Uncommon Leader
By June Moynihan and David Evans
FEATURES 11 Roy Barrera, Sr. Among His Souvenirs: Part II
By Steve Peirce
19 History of Trusts History of Inheritance: Part III
By Harry L. Munsinger, J.D., Ph.D.
6 David Evans photographed for San Antonio Lawyer in North Carolina by Nathan Baerreis
DEPARTMENTS
BAR BUSINESS
5 Feedback
26 SABA Proud Well-Informed Members Ready to Serve Online
23 Fourth Court Update
By SABA Staff
By Justice Irene Rios
24 Federal Court Update
By Soledad Valenciano, Melanie Fry, and Charles Carter
29 Book Review
By Thomas H. Veitch
September–October 2020
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OFFICERS / DIRECTORS President David M. Evans President-Elect Dawn Finlayson Treasurer Lawrence Morales, II Secretary Donna McElroy Immediate Past President Thomas A. Crosley
4 San Antonio Lawyer | sabar.org
Directors Steve Chiscano Grant McFarland Patricia "Patty" Rouse Vargas Jaime Vasquez Charla Davies Charlie Deacon Loraine Efron Nick Guinn Executive Director June Moynihan
STATE BAR / FOUNDATION State Bar of Texas Directors Marc E. Gravely Santos Vargas
San Antonio Bar Foundation Chair David Evans
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
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Steve Peirce, Roy Barrera, Sr., Among His Souvenirs, Part I, San Antonio Lawyer, July-August 2020, pp. 10-16 Dear Steve: I want to take this opportunity to thank you from the bottom of my heart for the countless hours of time and effort you expended on behalf of me and my family in writing and producing the article printed this month in the SABA magazine. My children and grandchildren were blown away by the story and photo display printed. I can’t tell you how proud I am to read your writing and how grateful I am for the end product, which is personally gratifying as well as flattering. I truly feel as if this is my “last hurrah” inasmuch as the current pandemic has kept us all from our daily office routines and caused us to step back, reassess, regroup and move on in varying and different dimensions of communication and work. I am afraid that my time, generation and profession have been irrevocably changed these past 4 months and my traditional way of life and work are well past me and long gone. Our work will continue into the next generation with Facetime, Zoom, Go to Meeting and other impersonal computer gatherings, facing and dealing with the tremendous challenges presented by the current state of politics, health and safety. I can safely but sadly say that our world has changed more for me in the past 4 months than it did in the past 90 years. If you can believe this, I had my first Zoom meeting last night! Again, please know
Roy, Bobby, and Roy Jr. photo by Martha Istueta
how thankful and grateful I am that you have done this wonderful favor for me, committing my history and storied life to print for my family to enjoy over the years after I am long gone. Sincerely and respectfully, Roy R. Barrera, Sr.
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SABA President David Evans : AN UNCOMMON LEADER
By June Moynihan and David Evans
T
here is no doubt that David Evans is the product of Jerry Evans and Patricia Sue "Pat" Carey. Jerry and Pat met in Nashville, Tennessee, where both were doing post-graduate work. Jerry, having completed a degree in philosophy at Southwestern in Memphis, Tennessee, was studying for his Masters of Divinity at Vanderbilt, with a plan to be a Methodist minister. Pat was from Corpus Christi, attending Scarritt College for Christian Workers, after graduating from what was then Texas A&I in Kingsville. Both had been raised in the Methodist Church, with similar Sunday morning rituals. Jerry’s father, Dillard, would dutifully drop Jerry, his sister June, and family matriarch Mary at church every Sunday morning and then go fishing with his buddies. Many a weekend, Pat and her brother Carson would go to church with their mother Ila, while father Everett was “praying” from a deer stand somewhere in the Texas Hill Country. It was from their time in their respective pews that Pat and Jerry learned of two important tenets of the Methodist faith: that followers must use logic and reason in all matters of faith, and that ministering to others is one’s highest calling. As a pair, Jerry and Pat were the epitome of this ethos and made the perfect team. Jerry was quiet and contemplative, eschewing small talk in favor of eternal existential questions, much like his mother, Mary. Indeed, while David has no memories of his other grandparents from his childhood, Mary was a huge influence in his life, visiting him from Memphis for a couple of weeks every year. Though such visits were short in comparison to the time many children have with their grandparents, Mary made up for it with long “chats” with David about issues big and small, worldly and otherwise. David and his wife, Katie Evans, M.D. photographed for San Antonio Lawyer in North Carolina by Nathan Baerreis 6 San Antonio Lawyer | sabar.org
Meanwhile, Pat was all about living a life of service to people, armed with a gift for gab that was peppered with expressions from her days spent with her father, uncles, and work family on flooring jobs in a part of South Texas, where some dogs didn’t hunt and certain questions weren’t worth asking when the ox was in the ditch. Pat and Jerry’s sister, June Evans, were both students at Nashville’s Scarritt College, a Christian college that trained women to serve globally as missionaries and church leaders. Well ahead of its time, Scarritt was the first private college to racially integrate in 1952. And five years later, the college hosted Dr. Martin Luther King, Jr. to speak at a time when, as Dr. King observed, the most segregated hour in America was 11 a.m. on a Sunday morning. June and Pat joined the Nashville Student Movement (“NSM”) led by a young and charismatic Baptist minister named John Lewis. The NSM would later become the Student Nonviolent Coordinating Committee, and Pastor Lewis would later become House Representative Lewis. June, Pat, and others from their class participated in many of the first civil rights sit-ins and protests in Nashville. With the recent passing of Lewis, Pat reminisced, “I remember I carpooled with John one night to meet with others at a Methodist Church on the outskirts of town so as not to draw too much attention to ourselves. I had never met someone that young who was so ‘about something.’” But it wasn’t long before Pat found something to “be about.” Not many years after she graduated, Pat teamed with other parents in SAISD to mainstream children with special needs into their local schools, when the common practice was to put such children on buses and warehouse them at a central place, out of sight, out of mind. So, these were the values that formed the home into which David was born. His parents began their church ministry in San Antonio, and their family grew, first with his elder sister, Mary Susanne, then the middle child John, who was born with profound special and medical needs. The family eventually transferred back to Memphis, where David was born. When David was three years old, his parents made the difficult decision to leave the Methodist ministry due to the frequent moves required to build career tenure. They chose to return to their adopted hometown of San Antonio. This was partly due to the rich community they found here, but mostly the medical support that came from a whip smart and much-loved pediatrician, Dr. Ella Zuschlag, who made many a house call to help John as well as other special needs children. They settled in a cozy home on Colleen Drive in a friendly workingclass neighborhood between St. Mary’s University and Jefferson High School. They soon started deepening their San Antonio roots. Jerry found a new career as a bookkeeper at a local hardware chain called Handy Dan, and Pat worked as an elementary school teacher, starting at nearby Madison Elementary, where David went to kindergarten. Their neighborhood was mostly Catholic, participating in activities sponsored by St. Paul’s. Not long after David started first grade at St. Paul’s, the Evans family joined the church and converted to Catholicism. David was an occasional Boy Scout (never got past Tenderfoot), middling altar boy (never did pre-Vatican II), but very active in the St. Paul’s Youth Program (Life Camp Alumnus). It was in the youth program where he widened his friend group to include students who attended Incarnate Word, Central, and Providence. While the family’s social life was mostly steeped in church relationships, David and his dad’s great shared love was for the San Antonio Spurs. David recalls, “These were the pink and teal Spurs days. During the season, we would listen to all the games on the alarm clock radio with the lights off in my parents’ bedroom.” Once a year, his dad would get tickets to attend a game at the then-HemisFair
Arena. David recalls once waiting patiently outside the team exit door to ask George Gervin to sign his basketball: “So, we are just outside the regular doors. No security or handlers. And out comes the Ice Man, and he grabs my ball with one massive hand and signs it and gives it back to me with a smile.” Early on, when asked what he wanted to be, David said that he wanted to become a surgeon. Assuming his reasons were altruistic, no one really investigated his reasons for declaring the occupation. The truth is that David would arrive home from school a few hours before his mother would arrive home from her teaching job. While he was meant to be practicing the piano, David instead worked through the WGN afternoon line-up of MASH and Good Times. “I wanted to be Dr. Hawkeye Pierce. He seemed to be having the time of his life,” says David. Pierce was irreverent, funny, and saving lives. As young kids are wont to do, David assumed it was the job of surgeon that made Hawkeye so amusing. For most of his formative years, he was certain he would become a surgeon and embody the cheeky Pierce. A seventh grade GT English class threw a wrench in that plan, though, and that was the first time David considered law. The regular teacher was out on maternity leave, and the substitute teacher was not all that interested in the lesson plans left for him to use. As it happened, the substitute was attending law school at St. Mary’s. He decided to have the students do a mock divorce trial. David remembers the feeling he had when he was able to exclude
As it happened, the substitute was attending law school at St. Mary’s. He decided to have the students do a mock divorce trial. David remembers the feeling he had when he was able to exclude a classmate playing the role of a child from testifying against her mother because of the emotional toll it would take on the child. David got his first taste of positive courtroom feedback, and he was hooked. David and Katie's son Shepherd (7) and daughter Sophia (10), with one of their family dogs, Ginger.
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David, Katie, Sophia, and Shepherd with family dogs, Livi (white) and Ginger (grey).
a classmate playing the role of a child from testifying against her mother because of the emotional toll it would take on the child. David got his first taste of positive courtroom feedback, and he was hooked. After David started Jefferson High School in 1989, his Uncle Carson invited him for the first of several extended summer visits. Carson’s work as an engineer and senior executive took him on many overseas trips and postings, and he was recently returned stateside to Cohasset, Massachusetts, a tony coastal suburb of Boston. David remembers his first trip being very much the country mouse visiting the city mouse: "It was the first time I had ever been on a plane, and we ended up at the fanciest house I had ever been in, but it was the least fancy house in the neighborhood. I remember that my uncle had a home office with his own fax machine that was constantly feeding this never-ending scroll of paper onto his office floor, detailing the various deals he was working in Asia. Even though he lived in a way I had never seen before, he did all of his own home renovation projects since he grew up working for my granddad. And I soon realized that he was going to teach me enough about demo-ing rooms, splitting wood, tamping gravel, roughing-in electrical, and sweat-fitting pipes to know that I would go hungry working with my hands.” David considers Carson’s advice as very influential to career considerations. “My uncle told me to go into something where you 8 San Antonio Lawyer | sabar.org
needed a stamp or a credential because then you aren’t competing against everyone who says they can do something. And I could tell that he was probably saving a few thousand dollars a week on labor by having us do the projects instead of hiring them out. But he was making many thousands of dollars on the phone during our lunch breaks, closing deals that he was doing on the other side of the world.” David describes his four years at Jefferson High School as a joy. “I did fine academically, but when I think of high school, I think of my friends from marching band and various musical stage productions.” David was elected student council president his senior year and enjoyed the leadership position. By senior year, he also took a serious look at military service and decided to apply to West Point, after receiving an invitation to do so after attending Boys State in Austin. He received a commendation from Senator Lloyd Bentsen, but as David wistfully remembers, “My failure to enroll in West Point correlates directly with my inability to do a pull-up, of all things. Not surprisingly, late night trips to Taco Cabana after marching a football halftime show in the Mighty Mustang Band was not building the best physical fitness foundation for a military academy education.” Before his dreams of military academy admission were dashed over his love of bean-and-cheese tacos, David attended a college fair at Brackenridge High School, where West Point would have admission counselors. The West Point table was near a table for the Centenary College of Louisiana. The alumnus staffing the table convinced David to visit the small liberal arts college in Shreveport, which is affiliated with the Methodist Church. The on-campus interview and promise of significant financial aid sold David, and he committed to Centenary with plans to major in political science and pre-law. The oldest liberal arts college west of the Mississippi, Centenary College is tiny, with historically fewer than 900 students enrolled at any time. David played trombone (poorly) in various ensembles and joined the TKE Fraternity, where he was president his senior year. He was also involved with student council every year and served as student body president his junior year. The Student Body Association managed a sixfigure budget that funded various campus extra-curricular programs, like the student newspaper and radio station. This level of volunteer commitment and leadership was simply a continuation of what he was always doing. When David was a college junior, he met a freshman student council member, Katie Cherie Tedesco. Katie had just turned eighteen, and David was dating another girl, also on student council. Katie and David saw each other regularly at student council events and talked of their shared love of various bands and interest in learning guitar. Near the end of the school year, Katie presented David with a mix tape at a student council meeting in front of the rest of a large group of students, including the girl David was dating at the time. That mix tape of songs by the Beatles, Cranberries, and Pixies started a two-month “will they, won’t they” reminiscent of the sitcom Friends’ Ross and Rachel storyline. As in all good stories, love won. They shared their first kiss that Memorial Day (cue to sunset) and married almost five years later to the day, the month David graduated law school in Austin. At the end of that summer, after a brief pre-bar review honeymoon to the western North Carolina home where Katie spent part of her childhood, Katie returned to Shreveport for medical school, and David reported for his first day at the San Antonio office of Akin Gump on September 4. Financing Katie’s medical school and a move from Austin to San Antonio, the newly formed Evans family bank account was running on fumes. “We cut up my credit cards that summer, and we planned ahead, knowing that my first paycheck would be a pretty hefty check that
Upper Row L-R: St. Paul's CYO circa 1984; Wedding Day, Shreveport, LA, May 26, 2001; Lower Row L-R: David as Prince Harry in Once Upon a Mattress, Jefferson High School, 1992; Big Bend, President's Day 2001; Spurs Championship Parade with daughter Sophia
Ralph Langley and Buddy Banack were legal lions of our legal community, and they lent their names to a firm that expected its attorneys would find a way to meaningful bar and community service. David shares, “Sylvia Cardona was an attorney at L&B who was instrumental in getting me involved with the young lawyers bar. Some of my best friendships are with attorneys I met through SA Young Lawyers Association (SAYLA) leadership and the Texas Young Lawyers Association.”
would include relocation and bar course reimbursements,” said David. Their plan probably would have been fine any other year, but this was 2001, and David’s first payday landed right after September 11, 2001. Due to the size of the check, David’s account was flagged and a bank hold placed. For about a week, David’s only available funds were what he could charge to their only remaining credit card, a Diamond Shamrock gas card. So, during his first month at Akin Gump, David would visit the closest Diamond Shamrock for lunch and dinner. “I avoided folks that week for fear someone would invite me out to lunch, and I had literally no money to pay,” David recalls. By 2004, Katie started her Physical Medicine and Rehabilitation residency at San Antonio’s UT Health Sciences Center. In February of that year, after 5,000 billable hours spent with employment law mentors Bob Bettac, Shelton Padgett, Ruben Cantu, Michael Galo,
and Christine Reinhard, David moved to Langley & Banack, where he had spent two summers clerking during law school and knew he would return someday, given how wonderful his experience had been. Ralph Langley and Buddy Banack were legal lions of our legal community, and they lent their names to a firm that expected its attorneys would find a way to meaningful bar and community service. David shares, “Sylvia Cardona was an attorney at L&B who was instrumental in getting me involved with the young lawyers bar. Some of my best friendships are with attorneys I met through SA Young Lawyers Association (SAYLA) leadership and the Texas Young Lawyers Association.” Kristal Thomson, now a shareholder at Langley & Banack, remembers, “It is impossible to think about those SAYLA Board meetings without smiling. The group was mostly funny people, and David provided a lot of mirth. It was really enjoyable to work that much and still laugh the whole time.” David eventually served as SAYLA president in 2007. In 2010, SAYLA selected David as the San Antonio Outstanding Young Lawyer, and he was ultimately selected as the American Bar Association’s Outstanding Young Lawyer for 2010, in recognition of his years of commitment to local bar leadership, mentorship to high school students through mock trial coaching, and board service to community organizations such as Habitat for Humanity. David says, “I was really only doing what had been done for me. I don’t expect every student who participates in a mock trial program to become a lawyer, but the speaking and thinking skills can serve someone in so many other ways in life. And that seventhgrade mock trial experience with a substitute teacher/law student was a light-bulb moment in my life. So if it can happen for one kid a year, then it is worth it.” Sylvia Cardona, now a partner at Jefferson Cano, shares, “David is a trusted friend, but what clinched our friendship for me was when we were new partners at Langley & Banack.” Cardona was tasked with putting together the program for the firm retreat and asked David to help write September–October 2020
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a script and design a program. “David and I dressed as mimes,” Cardona explains, “and created a performance piece to illustrate that all members of the firm are needed to help ‘row the boat’ for success to occur. The portrayal was rich with wildly executed interpretive dance moves. While impactful and entertaining, no one who took themselves too seriously could have pulled it off. From that day forward, I knew that David would do almost anything to help a friend, even if it meant embarrassing himself in front of peers.” In 2016, David launched his solo practice and he designed a Fiesta medal to celebrate his new enterprise. Of course, it was a tribute to the SA Spurs and to Tim Duncan’s recent retirement. David notes the medal has the oldschool Spur colors and the lyrics from Selena’s famous Como La Flor on two halves of a broken heart. The medal duet was sold only in pairs and raised much-needed funds for the YMCA Youth & Government Program that David coached at Sam Houston High School for two years. The medal was meant to promote Evans’ new law business, but it is impossible for him to talk about himself without including some hometown devotion and community program support, all packaged in an unconventional and entertaining way. Like Fiesta, David is puro San Antonio. Cardona concludes, “I am proud to see my longtime friend lead our bar association. To quote a TYLA saying, David is truly an ‘uncommon leader.’ During these uncommon times, our bar will benefit from David’s years of leadership experience, his inspired sense of humble humor, and his genuine devotion to be of service to his colleagues and San Antonio.” June Moynihan was named the Executive Director of the San Antonio Bar Association in May 2017. Licensed to practice in California, Moynihan is a graduate of the University of California-Hastings College of the Law. David Evans has been in private practice in San Antonio for 20 years. He has worked in a large international firm, a mid-sized local firm, and now as a sole practitioner. Evans has been involved in various bar organizations, and especially enjoys when our legal community comes together to help other organizations like Habitat for Humanity and Children’s Rehabilitation Institute Teleton. 10 San Antonio Lawyer | sabar.org
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Among His Souvenirs: Part II By Steve Peirce
Photo by Martha Istueta
This is the second of a two-part series on legendary trial lawyer Roy Barrera, Sr. In Part I, which appeared in the July-August 2020 issue of San Antonio Lawyer, we followed Roy’s early life growing up in South Texas, his Army service, his law school experience, and his early years as a young prosecutor with the District Attorney’s office. Part II, below, recounts more of Roy’s stories.
Nicholas & Barrera In August 1957, Roy and Anthony Nicholas formed the Nicholas & Barrera law firm on a handshake, opening up shop in the Frost Bank Building. They remained partners until the death of Nicholas on May 7th of 2011.
Albert Wechsler made the newspapers in 1962 when he was hired as an investigator by the DA’s office despite having a criminal record. Later, Wechsler was accused of stealing files from the DA’s office and selling the information to criminal defense attorneys. Wechsler was given immunity by the DA’s office if he told the truth and later testified at the grievance proceedings against the defense attorneys, but the Texas Attorney General obtained an indictment and conviction against Wechsler, notwithstanding the granted immunity. “I thought Albert got a bad deal because they didn’t prosecute the attorneys, and he had testified based on the grant of immunity,” Roy said. So, he represented Wechsler and obtained a reversal on appeal.
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In 1972, Nicholas & Barrera moved to their current location cattycorner to La Villita at the corner of East Nueva and South Presa. Upon purchasing the property, Roy found out that it had allegedly been the home of Texas Revolution spy Erastus “Deaf ” Smith and couldn’t be altered. And Nick’s wife was the president of the Historical Survey Society. What to do? Unbeknownst to Nick, Roy hired Wechsler to bulldoze the structure at midnight on a Saturday night. The cops arrived, recognized Roy there, accepted his lame excuse that he was doing the bulldozing in the night to avoid traffic problems, and left. Well, Deaf Smith may have lost a house, but he got a whole county named after him.
The Page Junior High Stabbing At Page Junior High in the Sixties, if you were walking down the hall or in the yard and you saw a rush of students running in the same direction, you knew a fight was happening. The students would form a circle around the combatants and watch until a spat-board-carrying vice principal would arrive and break it up. (I know. I’m a former Page student.) In 1964, Refugio Gonzales (15) and Jesse Sanchez (14), a football hero, were in one of those fights, circled by twenty to thirty students. Some of the girls were yelling “chicken” at Gonzales for not wanting to fight Sanchez. In the scuffle, Gonzales pulled a fishing knife and stabbed Sanchez in the heart, killing him instantly. Roy was Gonzales’ courtappointed attorney. Roy recalls: I insisted to the judge that that Gonzales be tried as an adult. Back then, juveniles had few rights. Juveniles could be held without bond. They couldn’t get a jury trial, and the prosecution could call juvenile defendants to the stand. The DA wanted to try him on a lesser charge, like possession of a knife, then try him for murder as soon as he became an adult. So, I got him tried as an adult for murder. We were making new law at the time because no juvenile had ever been tried as an adult. So we had a jury trial, and Gonzales took the stand. He was new at the school and had been bullied. He told his mother he didn’t want to go to that school anymore. They went to the principal to request a transfer, which was denied. Sanchez was a football star who was beating up on Gonzales when one of the students pulled Gonzales’ sweater over his head. Gonzales grabbed his knife and thrust upward, killing Sanchez. The jury found Gonzales not guilty, based on self-defense.
Friends in Low Places In September 1966, Roy received an unexpected gift from two prisoners at the Texas Department of Corrections Eastham Farm: a beautiful, brightly colored, hand-tooled parade saddle. Roy is particularly tickled by this story: In 1958, I defended Raymond Lee Flanagan, a Fort Hood soldier, who went to prison for murder and robbery. Flanagan had learned to work with leather while in prison, and he met a fellow prisoner, James David Green, whom I prosecuted in 1956, and who was sentenced as a habitual criminal. The two got together and made this saddle for me. I rode it in the Fiesta parade, and I still have it.
Mr. Secretary Roy’s collection of letters includes a December 1963 letter from him to Governor John Connally, thanking the Governor for a Christmas card and wishing him recovery after he was shot in President Kennedy’s motorcade in November 1963. In 1968, when an opening came up 12 San Antonio Lawyer | sabar.org
for Texas Secretary of State, Governor Connally appointed Roy to the post. During his stint at the Secretary’s office, he commuted every day between San Antonio and Austin. Among his duties was approving the applications of candidates to be placed on Texas ballots. Over the opposition of Republicans and Democrats, he put George Wallace’s party on the Presidential ballot because it met the requisites. He also handled requests to extradite Texas residents to other states for prosecution. And he attended the 1968 Democratic Convention in Chicago as the Secretary of the Texas Delegation and had run-ins with hippie protestors. There were the fun parts, too. A Korean children’s choir attended a session of the Texas Legislature. Roy surprised them all by singing Arirang, a folk song he learned during his Army service in post-World War II Korea. He later repeated the feat in federal court during a citizenship ceremony for Korean immigrants. Roy returned to Juan Seguin Elementary School to give a speech and honor his old principal. And more often than not, Roy was the state official who greeted foreign dignitaries arriving at the HemisFair ’68 World’s Fair. In April 1968, Hollywood actress Grace Kelly became Princess of Monaco when she married Prince Rainer, III. Roy recalls: My wife Carmen and I received her and the Prince at HemisFair. Of course, I welcomed her in English, and she responded in English, and then at the close of her response, to my surprise, she broke off into perfect Spanish, and the crowd loved it. I couldn’t help but get up and say in Spanish, “In reality she may be a princess, but to us (meaning Hispanics), she will always be a queen.” I told the Governor that the greatest thing that you ever did for me was to be absent when Grace Kelly came to HemisFair. And, of course, there are great pictures of the Barreras with Princess Grace. Then there was the trip to Chad. As part of his HemisFair duties, Roy had met the First President of Chad, Francois Tombalbaye. The week before Roy’s last day as Secretary, the Chadian President invited Roy and Carmen to go to Chad at Chad’s expense for the country’s National Day ceremonies over the weekend. Roy and Carmen didn’t have passports, but the Chadian Embassy told them they did not need them. Roy needed to be back in Austin the following Tuesday to officiate and give a final address to the legislature. At the New York airport, a Chadian Embassy official met the Barreras, and he spoke little or no English (Chadians spoke French), but he communicated to them that they needed passports. Unfazed, Roy called the Governor and two Congressmen, but could not reach them. Then he called the White House and asked to speak to President Johnson. Instead, they put “Tom Johnson” on the phone. A few minutes later, they were cleared to go. But when they arrived at the Paris airport, they were again asked for passports. They got out of the airport and made it to the Chadian Embassy. Roy was called at the embassy by the American Consul, who offered to give him a temporary passport. Roy dug an old photograph of himself and Carmen from his wallet to use for the temporary passport (which of course, he still has). They caught a plane just in time and made it to Chad. After the ceremonies, they returned to their hotel room and found two unwrapped giant elephant tusks and a giant snakeskin, gifts from the Chadian President, which Roy hoisted on his back through the airports on their way home. President Tombalbaye would later be assassinated on April 13, 1975. When Roy returned from Chad, for his final legislative address, he didn’t want to give an empty talk of meaningless platitudes and thankyous. Instead, he gave a civil rights speech to the legislature, stating, among other things: “For too long have theories and philosophies of the superiority of certain peoples over others been permitted to seed,
Barrera's collection of newspaper clippings, photos, and memorabilia from court cases document his storied life and his status as a San Antonio legal legend. Archive photos courtesy of Roy Barrera and family.
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Abridged Speech by Roy Barrera to the Texas Legislature in 1969 From the House Journal, 65th Legislature, Regular Session, January 14, 1969: The Honorable Roy Barrera, Secretary of State of Texas, then addressed the House, speaking as follows: I am not aware of any greater privilege that I have ever had as Secretary of State than that of functioning today as Temporary Chairman of the 61st Legislature of Texas and of the present opportunity afforded me, thereby, to address this assembly of the Representatives of the House and, through you, the people of Texas. *** Today, we live in a world which has shrunk to the size of the picture tube on our TV sets and no part of which is any farther than our telephone or a few hours distant. Our exploding populations and our dependence upon the peace, prosperity, and stability of most other nations, for our own, makes it even smaller. As our world shrinks in size, our relations with other nations become more entwined and interdependent, thereby making necessary that we know and understand them and, conversely, that they know and understand us. This can only be brought about through communication and association. In this melting pot of the world that we call America, we have been blessed as a nation with representative peoples from all over the world. With them they have brought their language, culture, skills and crafts, their customs, habits, and characteristics. This very diversity of these people has made our country the greatest in the world. We, as Americans, therefore, have the world within our borders. We have the colors of the rainbow, the religions of the world. Indeed, we have a melting pot. Before we can know and understand these nations, we must know and understand each other. We must know that all of us—irrespective of our ancestry, of the pigment of our skin or of our manner of worship—were created in the image and in the likeness of God. We must believe, therefore, that as human beings we are possessed of reason and, accordingly, can love or hate, be friendly or hostile, and are subject further to all of the wonderful attributes of man as well as his frailties. For too long the world has suffered strife and turmoil due to man’s inhumanity to man. For too long have men sought to enslave and make vassals of others. For too long have theories and philosophies of the superiority of certain peoples over others been permitted to seed, take root, and flower into hate, prejudice, suspicion, and distrust and ultimately untold suffering, death, and destruction. Today, in this country, hate and violence have become a part of our daily lives as a result of our ignorance and lack of understanding of our fellow Americans who may not look, speak, and pray as we do. “Four score and seven years ago our fathers brought forth upon this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.” Today, in this “new nation”—long years after that conception and that dedication referred to by Abraham Lincoln so simply, yet eloquently, in his immortal Gettysburg Address—there are those who would have us believe that this is not so. There are those who would still stand in the schoolhouse door and deny to some Americans their fair share of America. We are further blessed as a nation with all of the wealth and potential that any land could have in geography, climate, soil, and minerals. We are a conglomerate of races, nationalities, creeds, and colors that would shame a kaleidoscope in variety, composition, and beauty—a land where most of the languages of the world are spoken, where East meets West, and the customs, habits, and characteristics of the world’s nations are exhibited. This is a land of beauty. This is the promised land. To this day, there are some
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ABOVE: Secretary of State Roy Barrera visits with Princess Grace of Monaco at HemisFair ‘68. RIGHT: Inspecting a gun from the crime scene.
take root, and flower into hate, prejudice, suspicion, and distrust and ultimately untold suffering, death, and destruction.” On this, he was complimented by the press and by private citizens. Roy’s collection includes this eloquent and moving speech in its entirety. Roy and John Connally remained close friends. In 1971, Connally, as recently appointed Secretary of the Treasury, sent Roy and Carmen an autographed uncirculated one-dollar bill that “conveys a million thanks for your kindness and friendship.” And Roy’s collection includes a March 1980 letter of thanks from Connally for helping with Connally’s presidential campaign. The Barreras have dined at the White House with President Lyndon Johnson (Democrat) in 1968 and again in 1983 with President Ronald Reagan (Republican). In 1973, Roy ran an unsuccessful bid for mayor, and has not run for public office in San Antonio since.
The Orta Case In 1970, the mother of Felipe Orta (19), arrived at Nicholas & Barrera seeking representation for her son, who had been charged with capital murder in the death of a highway patrolman near Waxahachie. Since she spoke little English, Nick sent her to talk to Roy so that he could tell her in Spanish that she needed to seek an attorney elsewhere, or by court appointment, since she couldn’t afford the fees. Roy remembers thinking: If he gets the chair, I’m gonna look at myself every day in that damn mirror and say, “You didn’t even try because he didn’t have any money.” Orta’s mother, during her plea for help, prevailed upon my mother and all the Saints in the Catholic Church, so I said okay. We were able to get $3,500 for the case to use for expenses. Orta and two other Hispanic teenagers (who were 14 and 16, respectively) were returning from a roofing job in Dallas. They quit early and didn’t get paid, so they stole a car, stole some beer from a grocery store, and headed south, picking up two Anglo GI hitchhikers. They were pulled over by patrolman Travis Locker for speeding. Locker had them get out of the car. The sixteen-year-old jumped Locker and grabbed his pistol, and the other two jumped into the fray. According
ABOVE: Roy Barrera serving as Texas Secretary of State.
to Orta, he was trying to get the gun away from his friend, but it was too late. In the struggle, Locker was shot, but not fatally. The youths jumped into the car and took off, hiding for three days in the creek bed while the whole town and 300 peace officers searched for them. The two GIs stayed there and assisted the patrolman and the other officers. The youths ultimately made it back to their families in San Antonio, and they turned themselves in. While Locker was in the hospital, just when it looked like he would recover, he fell back and died with a rupture of a main artery. As Roy recalls: I visited Orta in jail. Orta told me that a deputy called him a Mexican s-o-b and that they were going “to burn his ass.” In response. I said, “If they leave that gate open, get as far away from it as you can because they’ll say you tried to escape and shoot you in the back.” Then I went to the judge and told him what my defendant had told me and that “if anything happens to that boy of mine while he’s in your jail, you’re gonna have more FBI agents down here than a dog’s got fleas.” The judge assured me that nothing would happen. Locker had been born and raised in Waxahachie, married there, and had kids there, so the next thing to do was seek a change of venue, which required evidence that the defendant could not get a fair trial in Ellis County. As Roy explained: I went to several local defense lawyers and to the editor of the paper, and they agreed that Orta couldn’t get a fair trial, but they refused to sign an affidavit for fear of getting run out of town themselves. So, I filed my own affidavit, naming the people that I had talked to, the lawyers and the editor, what they had told me, and why they wouldn’t sign. The judge said the venue motion wasn’t proper, but I filed it anyhow, which he promptly denied, so we started empaneling a jury. In a capital case, you voir dire the panel one person at a time. The courtroom was on the sun side of the building, and the state was complaining about the heat in the courtroom. The judge offered to let everyone remove their coats. I thought of my Chilean Indian grandfather, who had told me that the mind controls the body, and if you don’t admit that it’s hot, it’s not hot. So I kept my coat on.
Americans who do not share in this beauty, who enjoy only the promise but not the reality of America. Regretfully but true, for various and sundry reasons—some obvious, some quite subtle—over the course of time and history laws, rules, and regulations have been enacted and found their way into the statute books of this and other states, and of our nation, that have favored some Americans over others; that have relegated some Americans to second-class citizenship and worse; that have deprived some Americans of the fulfillment of their ambitions and their dreams—laws that have, in some instances. deprived some of life and liberty. America and Americans have lived and suffered with some of these laws for generations after generations, but “their cup has now runneth over.” They have had their fill. Much of the unrest in our country today can be attributed to long sought, but never obtained, remedies to grinding and degrading social and legal injustices. Falling back on my ancestry and the language of my fathers, “No hay enfermedad que dure cien años, ni enfermo que los aguante”—”there is no illness that lasts for one hundred years nor an ill person that can endure them.” America and Americans must face up to this fact, for unless and until we do, we shall continue to experience strife and turmoil throughout our nation. Due to this also, there are now other Americans who espouse and preach a willful disobedience to any law they deem unfair or unjust. To those, let me say, that the violation of the law cannot be condoned in the guise of correcting it. The willful and concerted disobedience and violation of the law can only lead to civil disorder and anarchy. This is not the way of America nor of Americans. *** Texas is not of one color, nor of one race, nor one creed. Texans all, we must live and work here side by side. We all want what is best for Texas and the nation. We want to progress, to educate our children, and to afford them every opportunity available to other Americans—to not only dream and aspire in the promised land, but to share in her—restricted only by their personal ambitions, and not by their ancestry or the color of their skin. We have fostered and condoned second-class citizens and worse. We can no longer afford to do so. We must no longer do so. With all of us as citizens, with you primarily as lawmakers, lies the legal and moral responsibility to ensure that this will be so. With you lies the responsibility not only to your respective communities, but to the State of Texas and to all Texans, to strike down any and all laws that are unjust and unfair—any law that would perpetuate second-class citizens in Texas—all laws that discriminate against or segregate any Texan because of his birth or belief. With you also rests the responsibility to enact such laws as will inure to the benefit and common good of all Texans generally, giving vent to the will of the majority with due regard to the rights of the minority. *** As you take your oaths, gentlemen, pray God that He give you guidance, intellect, and moral fortitude that you may accordingly discharge your duties. Gentlemen, in closing may I say to you that it has been a great honor for me to serve the people of the State of Texas as Secretary of State of Texas. My tenure of office terminates in a few short days. I have tried to serve all Texans as a Texan. I have traveled to many different parts of our great State, finding no alarm or consternation at the pronunciation of my name or in the manner in which I part my hair. After the long drought, I do believe I see rain clouds on the horizon. For this I, and a great number of other Texans, shall always be grateful to and never forget Governor Connally. I also wish to thank the people of Texas for their reception and understanding. It’s still the greatest State in the Union.
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The case gained national attention, and Roy was interviewed about it on 60 Minutes. A letter in Roy’s collection states: “Frankly, Mr. Barrera, I continue to be amazed at your abilities. I know of no other attorney who could have obtained the 10-year probated sentence you did.”
The prosecutor complained about the length of my questions and the heat. The judge asked me to hurry it up a little. I told the judge we could finish right now if the state would agree to a plea for life or 99 years. The state refused. We went through the whole week. We examined all the jurors and exhausted the panel. At that point, out of a hundred and some-odd people, we had selected six jurors. We still had six more to go, and the panel was gone. So, the judge relented and granted the change of venue to Dallas County. For the Dallas trial, the two prosecutors from Waxahachie teamed up with two prosecutors from Dallas DA Henry Wade’s office against Roy. The prosecution sought the death penalty. Given the odds, Roy was offered help by the local defense bar, but he declined: “It looks bad, and that’s the way I want it to look,” he said. Picking the Dallas jury, if he liked the look of the juror and still liked them after the prosecution’s questions, he wouldn’t ask questions, prompting his opponents to think that he wouldn’t accept a juror without asking questions, so they didn’t challenge those jurors either, which is what Roy wanted. One woman on the panel, a mannish-looking cab driver, made long eye contact with Roy. The bailiff noticed and kidded Roy that she was his “girlfriend.” She ended up the foreman, and Roy liked his jury. The GIs, having come to Dallas for questioning on Friday, showed up at the Monday morning trial obviously hung over, and Roy had the transcript of the earlier statements they had made in Waxahachie, which the prosecution forgot or ignored. They tried to change their story to put all the blame on Orta, but they withered under Roy’s cross. Although Locker’s widow had no relevant knowledge, the prosecution put her on the stand for jury sympathy, where she tearfully testified on direct. Roy recalls: I said, “Mrs. Locker, I want you to know that my boy’s family and he himself, they’re all personally very disturbed and regret the situation that has brought you to this courtroom.” She turned on me like a tiger. I mean her tears were gone, she destroyed what she had built in nothing flat. In the end, the jury returned a verdict of murder without malice, which carried a five-year maximum sentence, but denied probation. After the verdict, reporters flooded the hall. Roy noticed the young prosecutor from Waxahachie in tears and approached him. Roy explained. “He said that he was going to lose his job over this case. I told him, ‘I’ll fix it.’ I went to the reporters and told them that he had done a fine job, and that the prosecution would have won if it hadn’t been for those Dallas prosecutors.” The Waxahachie prosecutor’s job was saved, and he thanked Roy for the favor. Roy’s collection includes a June 10, 1970, letter from attorney Sam Coats (“In talking with judges and lawyers alike, the opinion is unanimous that you tried one of the best cases ever tried in Dallas County.”); a June 13, 1970, letter from the Dallas 16 San Antonio Lawyer | sabar.org
County District Trial Judge John Vance (“All jurors seemed to be in agreement that Orta had an outstanding attorney. The Court agreed.”); a letter of June 17, 1970, quoting assistant DA David Pickett (“You’re the finest criminal lawyer that office has ever come up against.”); and a 1991 letter from Judge Stephen B. Ables to Roy Jr. (“My dad was on a jury in Waxahachie and was observing a lawyer in action named Roy Barrera, who was the best attorney he had ever seen.”). In 1987, Orta, at age thirty-six, was shot to death at a bar room on the South Side by the same man who, in a June 2000 incident, held Archbishop Patrick Flores hostage for nine hours in the Archbishop’s chancery.
El Charro de Mexico Antonio Aguilar was a renowned Mexican singer and film actor who recorded over 150 albums and appeared in 120 movies. Known as El Charro de Mexico, he was famous for singing songs while riding on a horse, which he was doing one night at the Alameda Theater downtown. A trap door on the stage floor gave way. Aguilar fell to the side, but the horse fell through to the basement, onto its back with its legs in the air. A patron at the show figured he would call the smartest person he knew, Roy Barrera, to help get the horse out of there. Whereupon, on Roy’s advice, they knocked out a wall, stuck a lift under the horse, and pulled it out. The horse survived. The Barreras and the Aguilars became fast friends, with Aguilar always recognizing them in the crowd when he performed.
The Mercy Killing On November 16, 1981, Woodrow Collums (69) a retired rancher from Atascosa County, walked into a San Antonio nursing home and shot his brother, Jim Collums (72), three times in the head and twice in the stomach, killing him. Jim Collums was suffering from Alzheimer’s disease and was being kept alive with a feeding tube inserted into his stomach. Woodrow was arrested at the nursing home and charged with murder. He pled guilty. Released on bond, Woodrow wrote a letter that was published in the papers, saying that he could not stand to see his brother suffer any more. Roy represented Woodrow, and sought deferred adjudication, which was strongly opposed by the prosecution. A sentencing trial was held before Judge Tom Rickhoff, with family, nursing home attendants, and Jim’s widow all testifying. A letter from Jim (written after his diagnosis) that he wished to be put to sleep, if he would not recover, was introduced into evidence. Woodrow was given ten years of probation and community service. The case gained national attention, and Roy was interviewed about it on 60 Minutes. A letter in Roy’s collection states: “Frankly, Mr. Barrera, I continue to be amazed at your abilities. I know of no other attorney who could have obtained the 10-year probated sentence you did.”
Autumn Hills After six years of investigation, in 1985, a Galveston nursing home, Autumn Hills, was the first nursing home corporation indicted for murder, based on the neglect of the residents. The case was presided over by Galveston Judge Don B. Morgan, but the venue was moved to San Antonio. Upon the venue transfer, Roy represented the corporation and became the San Antonio member of the Autumn Hills team of lawyers representing other individual defendants. Roy procured a courtroom at the Bexar County courthouse to use for the first few months, then they used Judge William Sessions’ courtroom at the federal courthouse, then back to the Bexar County courthouse. On a day off, the Galveston Judge asked Roy to take him to the Zoo, and Roy obliged. On another day, the Judge wanted Roy to bring him Mexican food, so Roy brought tamales (from Karam’s) to the federal courthouse to share. The janitor found the tamale shucks and told Judge Sessions, who wasn’t pleased. (On another
“My dad was on a jury in Waxahachie and was observing a lawyer in action named Roy Barrera, who was the best attorney he had ever seen.” occasion, Roy had drawn the ire of Judge Sessions by sharing tamales with Judge Ed Prado and the attorneys in the courtroom.) The trial (which lasted six months, had fifty-six exhumations ordered, and the testimony of numerous witnesses and experts) was said to be the most complex criminal trial in the history of Texas. A book, Death Without Dignity by Steven Long, was written about the case. Roy opened the closing argument for the defense team. After six days of deliberation, the jury was still hung, seven for conviction and five for acquittal, which resulted in a mistrial.
one man and five women. To lose the trial might have meant the end of Tesoro, a major employer. Roy opened the closing arguments for the Tesoro team. Roy charged the plaintiffs with “leading the jury up the yellow brick road to the land of Oz on a fantasy trip, mixing truth and fiction as a blender to combine apples and oranges in a concoction difficult to comprehend.” He argued that the absence of any indictments served as “proof that the presumption of innocence still prevails.” For thirteen days, the jury poured over a sixty-four-page jury charge and six months’ worth of evidence before reaching a verdict, on July 22, 1987, of no liability on all thirteen charges. After the trial, the jury foreman, a thirty-year-old student and electronics technician, was quoted in the paper as wanting to “get together” with some of the other jurors, indicating that new friendships were made. But in September of 1987, two of the jurors charged the foreman and another juror with bringing up matters not in evidence, intimidation, and “browbeating” the other four jurors into the verdict. A United States deputy marshal took that information and tried to sell it to the plaintiff side for $1 million, but he was arrested by the FBI in a sting operation and ultimately pled guilty. The shareholder plaintiffs filed a motion for new trial, which was denied. The Wall Street Journal ran a story about this trial’s being the vindication of Richard Miller from his Texaco defeat. Miller would write in a September 17, 1987 letter: [Roy] confirmed again what most of us know: litigation skills in the hands of an intuitive and perceptive trial lawyer are readily transferable from one field of law to another and from one case to another. The Tesoro case was a civil securities fraud case (some said), and I assure you as far as anyone could tell, Roy performed like he had for years recited Rule 10b-5 every night before bedtime.
The Tesoro Trial In 1964, Robert V. West, a Ph.D. in Chemical Engineering, founded an oil company and gave it the Spanish name for “treasure,” Tesoro. In 1968, Tesoro Petroleum Corp. became the first San Antonio company to be traded on the New York Stock Exchange. By 1982, Dr. West, Tesoro, and ten other individual directors and officers found themselves on the defendant side of a $790-million class action and shareholder derivative federal lawsuit brought by Tesoro shareholders, alleging racketeering, securities law violations, and breach of fiduciary duty. It looked bad for the defendants: accusations of bribing foreign officials with money and prostitutes, use of company assets for personal use, cover-ups, failing to disclose a lucrative stock purchase offer while attempting to take the company private, false statements in SEC filings, and stock price manipulation, all described in the Wall Street Journal. The lawsuit had been preceded by lengthy IRS, SEC, and grand jury investigations and an internal investigation by law firm Fulbright & Jaworski, which resulted in no indictments. Lead counsel for the Tesoro defendants was Houston attorney Richard Miller, who was known for being on the losing end of the $10 billion Pennzoil v. Texaco verdict. The case was going to be a jury trial in H.F. “Hippo” Garcia’s court. Who else would the Tesoro team hire but eminent defense counsel Roy Barrera, Judge Garcia’s long-time compadre? A six-month trial was held in 1987 before a six-person jury: September–October 2020
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Trying To Manage Too Much? LeT us heLp. you fiLe iT and we do The resT! Nationwide Process Serving Skip Tracing Court Filings Online Repository and much more Resting his case: Roy Barrera relaxes in court.
Among Roy’s Souvenirs Among Roy’s souvenirs, my favorite picture is a black and white photo of him in a courtroom, circa 1960. It looks cinematic. The court is obviously in recess; maybe waiting on a verdict. Opposing counsel is standing on one side. There’s a newspaper reporter in the middle, and there’s Roy Barrera, leaning back in a chair in the jury box, his feet propped up on the railing, smoking a cigarette, looking like he owns the place. There’s a 1993 letter from attorney Larry Macon (who was also on the Tesoro team) that says in its entirety: “Thanks for being my friend as well as the best attorney in the state.” And a 1996 letter from County Clerk Gerry Rickoff, inspired by simply seeing Roy and son Bobby together: “Last evening through the lengthening shadows I was privileged to observe a most moving sight, that of yourself and your son, Bobby, leaving this grand old Courthouse together.” For many of us, at one time or another, we dreamed that someday we would become legendary trial lawyers. Roy Barrera’s lived that dream, and then some. Post-Script. In 1965, while watching the news of Nat “King” Cole’s death from lung cancer with his daughter, Roy had her flush his cigarettes down the toilet, and he never smoked another cigarette. Roy’s collection includes a plaque of a shellacked five-dollar bill he received from a friend: Roy’s winnings in a bet with him that Roy couldn’t quit smoking. S teve A. Peirce practices business bankruptcy law in the San Antonio office of Norton Rose Fulbright. He can be reached at 210.270-7179 or steve.peirce@ nortonrosefulbright.com. 18 San Antonio Lawyer | sabar.org
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HISTORY OF INHERITANCE: PART III
History of Trusts
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By Harry L. Munsinger, J.D., Ph.D.
rusts are a widely recognized concept under American law. However, unlike intestate succession and formal wills, discussed in Parts I and II of this series, trusts have a more recent genesis as a means of transferring property to descendants. Black’s Law Dictionary defines a trust as “[a] legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument. The trustee has a fiduciary responsibility to manage the trust’s corpus assets and income for the economic benefit of all of the beneficiaries.”1 A trust document must be in writing and signed by the settlor and trustee. Ancient Roman law permitted citizens to establish trusts by will to hold property for their descendants, but these trusts only became effective after the testator’s death. By the Middle Ages, English lawyers and their clients wanted the concept of trusts to allow the Church to use and enjoy land legally, to enforce agreements between crusading knights and their trustees, and to avoid the fees associated with feudal tenure. To enforce these informal agreements, English kings established equity courts that gradually changed the common law by deciding that legal title to land could be separated from equitable use and enjoyment of land, establishing the legal right to hold land in trust for the use of others. Ecclesiastical courts were the first to uphold trust agreements, but later, chancery courts were established to resolve conflicts between ecclesiastical and common law courts and to define the fiduciary duties of trustees.
Creation of Trusts Early English common law did not allow separation of legal title and equitable use of land.2 This presented problems for knights who needed someone to manage their lands while they were away on crusades to the Holy Land, so they entered into informal agreements with trustees. The legal issue became acute when knights returning from the crusades discovered that some dishonest trustees were refusing to return their lands according to the informal agreements. To deal with this injustice, English kings established equity courts to resolve these cases in a just way rather than through the common law. Equity court decisions gradually developed a body of law protecting the settlor and beneficiary from a dishonest trustee, eventually creating the English doctrine of trusts.
Black’s Law Dictionary defines a trust as “[ a] legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument. The trustee has a fiduciary responsibility to manage the trust’s corpus assets and income for the economic benefit of all of the beneficiaries.” At the same time, English common law and Norman feudal tenure placed restrictions upon the ownership and conveyance of land, which were detrimental to the Catholic Church’s interests. Under Norman feudal law, taxes on land were assessed primarily when land passed by grant or inheritance. If land could be owned by an entity that never died, the sovereign could never collect taxes on it. Therefore, religious entities, including the Catholic Church, were forbidden from owning land under the Mortmain Acts3 passed by Parliament in the thirteenth century. Additionally, many religious orders had taken vows of poverty, and publicly owning large tracts of land was inconsistent with a life of poverty. When parishioners bequeathed real property to the Catholic Church, the Church avoided the legal restrictions and moral contradictions by gifting title to real estate to a layman trustee for “use” by the Church, which created an informal trust arrangement. However, these informal agreements could not be enforced in a common law court, so Church leaders began looking for alternate legal ways to make a trustee adhere to his agreement. Finally, trusts were also developed to avoid feudal taxes. Norman laws entitled the king to cash payments under the following circumstances: (1) feudal land descended from a father to his son; (2) a wardship was established for a minor; (3) a daughter married; (4) the eldest son was knighted; or (5) a lord was captured and held for ransom. By establishing a trust to hold his land, the feudal tenant hoped to avoid these financial September–October 2020
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burdens and possibly gain the right to transfer feudal land to someone outside his immediate family or to bequeath the land to someone other than his eldest son.4 The English common law courts were bound by the ancient common law precepts that regarded rights in land as indivisible, meaning that the person who held legal title to the land was automatically entitled to the use and enjoyment of profits from the land.5 Thus, for example, when a common law court was confronted with a case where a crusading knight had transferred legal title to a trustee who had agreed to hold the land and give it back to the knight with profits when he returned from a crusade, and the trustee refused to honor the agreement, common law courts could not look beyond the fact that the trustee held legal title to the land. Consequently, ownership of the land was awarded to the dishonest trustee by the common law courts—clearly an injustice. To correct this legal injustice, English kings gave equity courts authority to hear these cases and decide ownership based on fairness rather than rigid common law rules. Equity court judges decided that legal title to land could be separated from equitable use and enjoyment of the land, and the result was the English doctrine of trusts.6 In England, there were two types of equity courts: ecclesiastical and chancery. Ecclesiastical courts had original jurisdiction over cases where a trustee was not adhering to his informal agreement, but chancery courts—which were supposed to represent the King’s conscience—were created to resolve disputes between ecclesiastical and common law courts. The chancery courts sided with ecclesiastical courts rather than common law courts and ruled that legal title to land and the use and enjoyment of land could be separated.7
Evolution of English Trust Law Early English court decisions developed active and passive trusts.8 If a trustee held title to property and actively managed it, the trust was called an active or special trust. For example, if A conveyed title to land to B and instructed B to manage the land and pay the profits to C, B was an active or special trustee who owed a fiduciary duty to C to manage the property, collect rents, and pay profits to beneficiary C. In contrast, a passive trust required that the trustee hold legal title to land while the Church managed the property and enjoyed income and other benefits from the land. Trustees of passive trusts had no responsibility to administer or manage the real property. Instead, they served only to separate legal and equitable title so that a layman could hold legal title to the property and pay taxes while the Church managed and enjoyed the income from the land without breaking mortmain laws.
The Statute of Uses In 1535, Henry VIII forced Parliament to pass the Statute of Uses to limit the availability of trusts and give them a solid legal foundation.9 Under the common law doctrine of uses, when a person was granted property for a specific purpose, the courts would require him to carry out that purpose. The Statute of Uses sought to curb the avoidance of taxes by the Catholic Church and to stop feudal tenants from escaping fees owed to the king when the tenant died, his daughters married, or his eldest son was knighted. The Statute of Uses also reinstated the old English rule of primogeniture, under which the first-born son inherited all a lord’s land and titles.10 The Statute of Uses did not have its intended effect, however, because common law courts interpreted the statute narrowly. As a result, equitable uses continued to exist and eventually developed into the modern doctrine of trusts. Common law courts strictly interpreted the exact words in the Statute of Uses and continued to apply uses to personal property, because the statute only mentioned certain types of real property. Moreover, because the statute said it applied to land where title was seized (which meant 20 San Antonio Lawyer | sabar.org
legal possession of the land free from feudal tenure), common law courts held that only freeholds were affected by the Statute of Uses. Thus, the new statute was not applied to land held in feudal tenure. Additionally, the Statute of Uses did not affect active trusts and land held for life or for a term of years. According to common law court rulings, only passive trusts were subject to the Statute of Uses, which allowed the ancient doctrine of uses to evolve into the modern law of trusts. The English law of trusts was codified after 1925 by a series of Parliamentary Acts, but even today, parts of English trust law are based on judicial decisions rather than statutes.
American Trust Law Trust law in America developed along different lines from English trust law. There were no church courts in America, so jurisdiction over trusts was given to civil courts, which initially enforced the separation of legal and equitable title to land. Gradually, American courts developed a common law of trusts premised on the recognition of the trustee’s fiduciary duties. The American Law Institute published its Restatement of the American Law of Trusts in 1935, codifying earlier common law court decisions affecting trust agreements in the United States. The Institute revised the Restatement of Trusts in 1957. In general, trusts can be created by operation of law, by will, or through a written agreement between a settlor and trustee. The trust document usually describes the trust assets; names the trustee, settlor, and beneficiaries; and describes the disposition of assets and the parties’ rights and duties. The trustee holds legal title to trust property and manages, invests, and distributes trust assets for the support, maintenance, education, and health of beneficiaries. Often a trustee is given discretion to distribute trust funds according to the beneficiary’s needs, typical standard of living, and the availability of trust income. The trustee may be given discretion to invade trust principal to pay expenses, or the trustee may be restricted to distributing only income from the trust.11
In the United States, it is possible to create trusts that are effective during the lifetime of the settlor (living trusts) as well as trusts that become effective on the death of the settlor (testamentary trusts). In the case of a living trust, the document usually (1) appoints the settlor as trustee to manage and administer trust property for his or her own benefit during the settlor’s life; and (2) names successor trustees to manage or distribute the property to successor beneficiaries after the settlor’s death. The trustee has a fiduciary duty to carry out all terms of the trust without self-interest. The trustee must manage, invest, and distribute the trust property according to the terms of the trust. A trustee that does not do so is in breach of a fiduciary duty and can be replaced and held liable for damages. Living trusts are used to expedite the transfer of property to named beneficiaries when the settlor dies and allow the transfer of property at the settler’s death without the necessity of probating a will. Another type of trust, called the By-Pass Trust, was used by estate planning attorneys to take advantage of a 50% marital deduction afforded the surviving spouse to avoid estate taxes.12 Before estate and gift tax exemptions were raised in recent years, many attorneys drafted estate plans that included By-Pass Trusts. By transferring half the estate to a trust for the benefit of a surviving spouse, a couple could postpone paying estate taxes on that portion of their assets until the surviving spouse died. Because the surviving spouse was likely to spend a significant portion of the estate assets prior to death, and payment of estate taxes was postponed for the life of the surviving spouse, the By-Pass Trust could substantially lower the total estate tax bill. Trusts are also used to support, maintain, educate, and provide health benefits to a surviving spouse, minor descendants, or disabled persons. Because a settlor relies on the good faith of a trustee to carry out the terms of a trust, courts borrowed the concept of fiduciary duty from ancient contract law to enforce good behavior on the part of trustees.
Ancient Roman law also used the concept of fiduciary in contract and trust law. Romans used the term “fiduciary” to mean a person having duties analogous to a modern trustee or agent. A Roman agent who refused to account for his principal’s funds could be sent to prison until he produced an accounting or returned the money to his principal. The action of waste in a wardship was also based on the enforcement of a fiduciary duty of a guardian to account for the profits of his ward’s land. The duties of a fiduciary, which included loyalty, care, and prudence, were developed first in ancient contract law and were then applied to trustees. The doctrine of fiduciary duty was first used by English common law judges to enforce duties owed by an agent to a merchant who gave him funds to purchase goods and have them delivered to the merchant’s place of business. English and American courts applied the idea of a fiduciary duty to the relationship between a trustee and beneficiaries to enforce trust agreements. The trustee’s fiduciary duty was to administer and distribute the property for the use and enjoyment of named beneficiaries in a fair and prudent manner without regard to the trustee’s personal
Fiduciary Duty: The Foundation of English and American Trust Law
interests.16 As English and American trust law developed, beneficiaries gained the right to sue in court to force the trustee to administer the property in accordance with the terms of the trust or to be removed, ordered to pay money damages, and replaced by a new trustee who would follow the terms of the trust instrument. English and American fiduciary duties exceed those developed in ancient times, but the beginnings of legal fiduciary duties were clearly visible in early English common law rulings. While on the New York Court of Appeals, Justice Benjamin Cardozo wrote the most-cited words defining the duties of a fiduciary: Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.17
English courts of equity relied on the ancient concepts of fiduciary duties and adapted them to find bases on which to enforce the informal agreements between landowners and their trustees. The fiduciary duties owed by the trustee continue to be the bedrock of trust law in both England and the United States. Fiduciary duties were so important in early English common law that four chapters of the Magna Carta listed remedies for heirs against guardians who breached their fiduciary duties by withholding or wasting a ward’s inheritance.13 Current fiduciary duties in English and American law exceed those developed earlier, but the beginnings of a trustee’s fiduciary duties were visible as early as the thirteenth century in England. A fiduciary duty owed by one person to another can be found in the Code of Hammurabi, published during the seventeenth century B.C.E.14 The concepts of agency and fiduciary duty developed in ancient Mesopotamia to govern situations where a merchant gave another person, called an agent, money to invest or purchase goods. Examples of fiduciary duties can also be found in the Bible and ancient Greek writings. Perhaps the most famous Biblical example is Jesus’s warning, “No man can serve two masters: for either he will hate the one and love the other; or else he will hold to the one and despise the other. Ye cannot serve God and mammon.”15 In his Republic, the Athenian philosopher Plato outlined the duties a philosopher king owes his subjects, which are similar to modern ideas of fiduciary duty.
Trusts are also used to support, maintain, educate, and provide health benefits to a surviving spouse, minor descendants, or disabled persons. Because a settlor relies on the good faith of a trustee to carry out the terms of a trust, courts borrowed the concept of fiduciary duty from ancient contract law to enforce good behavior on the part of trustees.
Conclusion Trusts were developed by courts of equity to avoid the rigid rules of English common law which forbid different persons or entities from holding legal title and equitable use of the land. Trust law developed from equity court decisions based on fairness. Equity court judges enforced informal agreements between a trustee, who held legal title to land, and beneficiaries, who expected the trustee to hold the land for their use and return it at a later date or distribute the land to a successor beneficiary. If a dispute arose about the rightful ownership of the land, English common law courts could only look to the legal title held by the trustee September–October 2020
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to determine who was the rightful owner and then award the land to the trustee because he held legal title. In contrast, courts of equity applied the idea of a fiduciary duty owed by a trustee to the settlor or beneficiary to enforce the informal trust agreements rather than allowing dishonest trustees to benefit unfairly. Modern trusts and the doctrine of fiduciary duties allow decedents to assign legal title to property to a trustee for the use and enjoyment of their dependent beneficiaries. These trusts allow for the care, education, and maintenance of spouses and children after a wage-earner’s death and are useful in estate planning or for care and maintenance of dependents. arry Munsinger recently retired from the practice of law, H in which he focused on Collaborative Divorces, Estate Planning, and Probate matters. Harry holds a Ph.D. in psychology from the University of Oregon and a J.D. from Duke University School of Law, where he was a member of the Duke Law Journal.
ENDNOTES Trust, Black’s Law Dictionary (6th Ed. 1990). A.H.F. Lefroy, The Anglo-Saxon Period of English Law, 26 Yale L. J. 291 (1917). 3 Editors Britannica, Mortmain, https://www.britannica.com/topic/mortmain (last visited Aug. 18, 2020). “Mortmain” was derived from Norman French and means “dead hand.” 4 David J. Seipp, Trust and Fiduciary Duty in the Early Common Law, 91 B.U.L. Rev. 1011 (2002). 5 Id. 6 Id. 7 Id. 8 Julia Kagan, Active Trust (Jan. 9, 2020), https://www.investopedia.com/terms/a/ active-trust.asp (last visited Aug. 18, 2020). 9 David T. Smith, The Statute of Uses: A Look at Its Historical Evolution and Demise, 18 Case Western Reserve L. Rev. 40 (1966). 10 Statute of Uses, https://legal-dictionary.thefreedictionary.com/Statute+of+Uses (last visited Aug. 18, 2020). 11 Martin Shenkman, The Modern Revocable Trust, Estate Planning Studies (Montecito Bank & Trust, July 2016). 12 Rebecca Lake, How a Bypass Trust Works in an Estate Plan, (March 19, 2020) https:// smartasset.com/estate-planning/bypass-trust (last visited Aug. 18, 2020). 13 Vincent R. Johnson, The Fiduciary Obligations of Public Officials, St. Mary’s J. on Legal Malpractice & Ethics, 298 (2019). 14 History.com Editors, Code of Hammurabi (Feb. 21, 2020) https://www.history. com/topics/ ancient-history/Hammurabi (last visited Aug. 18, 2020). 15 Matthew 6:24 (King James). 16 Seipp, supra. 17 Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928). 1 2
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Fourth Court Update
Resilience and Dedication at the Fourth Court of Appeals By Justice Beth Watkins
I
n 1897, Irish author Bram Stoker wrote, “It is really wonderful how much resilience there is in human nature.” For the Fourth Court of Appeals—and, indeed, for our entire community— that sentiment has never been truer than in 2020. In March, the court began working remotely as a result of the COVID-19 pandemic. In the last Fourth Court Update, Justice Irene Rios described the transition the justices, attorneys, and staff made to performing the court’s work remotely. Just as we hit our stride in that new work environment, the court suffered a second blow. On May 8, the Office of Court Administration (OCA) experienced a statewide ransomware attack that crippled the computer systems of the Texas Supreme Court, the Court of Criminal Appeals, and the intermediate courts of appeals. The effects of the ransomware attack extended to virtually every aspect of the appellate courts’ operations, including internal and external access to briefs and records, issuing orders and opinions, and even payroll. Unlike our new virtual workplace, the ransomware attack threatened to seriously disrupt the court’s operations. Nevertheless, the court quickly reached a consensus that, for the second time this year, we would adapt to the best of our abilities to continue to fulfill the court’s mission. Because our email was unaffected by the ransomware attack, we began by working through the briefs, motions, and records our staff attorneys and deputy clerks could retrieve from their email accounts to recreate records and draft opinions. While we were busy accomplishing what we could with those limited resources, our Network Specialist, Del Merritt, went into action to restore broader functionality to the court. In conjunction with OCA, Del worked nights and weekends to search for any uncorrupted backup files the ransomware attack missed. On May 21, Del located what OCA later described as a jackpot—a complete “shadow copy” of our court’s files that was unaffected by the attack. Remarkably, Del’s efforts helped some of the other appellate courts find their own shadow copies, too. After he located the Fourth Court’s shadow copy, Del continued working diligently to bring us back online—an effort that eventually required a complete reimaging of each individual computer in the Fourth Court. In addition to Del’s heroic work, our Clerk of Court Michael Cruz, Chief Deputy Clerk Luz Estrada, Deputy Clerks Veronica Gonzalez, Jamie Osio, Cecilia Phillips, Krystal Perez, and Monica Rivera, and Accountant Leticia White all went above and beyond to keep the court functioning as smoothly as possible. As of this writing, our database system, TAMES, has been restored and is fully functional. When TAMES was restored, our front-office staff began performing double duty—electronically processing new filings and converting
Just as we hit our stride in that new work environment, the court suffered a second blow. filings that were hand-processed while our system was down. While the work to completely recover from the ransomware attack continues, we are profoundly grateful to our front office staff for their resilience and dedication to the court’s mission in these unprecedented times. The challenges presented by COVID-19 and the ransomware attack also extended to the court’s summer internship program, which went virtual for the first time. The Fourth Court hosted six interns who worked remotely in the chambers of Justices Rebeca C. Martinez, Beth Watkins, and Liza A. Rodriguez. These interns reviewed publicly accessible materials, performed research, and drafted memos on legal issues related to the court’s current docket. We typically launch our internship program with a welcome breakfast at the beginning of the summer. This year, we introduced our summer interns with a courtwide Zoom call. While it may not have been the experience these intrepid law students signed up for, it is one they are not likely to forget. Finally, during this time when we felt disconnected from each other and frustrated by the challenges we faced as a result of the COVID-19/ransomware double whammy, Chief Justice Sandee Bryan Marion started a weekly e-mail thread to celebrate birthdays and other milestones. Through these themed emails, we shared photos, memories, stories, memes, and more than a few laughs. The camaraderie of these Friday afternoon pick-me-ups strengthened the Fourth Court family’s bond and served as a reminder of how much we look forward to seeing each other again when we return to work at the courthouse. Until then, though, as a result of the dedication and resilience of its employees, the important work of the Fourth Court continues. J ustice Beth Watkins practiced before federal and state appellate courts for sixteen years before her election in 2018. She is Board Certified in Civil Appellate Law.
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Federal Court Update
Western District of Texas Court Summaries By Soledad Valenciano, Melanie Fry, and Charles Carter
If you are aware of a Western District of Texas order that would be of interest to the San Antonio Bar Association and 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.
Voting; COVID-19 Response Tex. Democratic Party v. Abbott, No. SA20-CA-438-FB (Biery, F., May 19, 2020), stay granted, 961 F.3d 389 (5th Cir. 2020), motion to vacate denied, 140 S. Ct. 2015 (2020). Texas election law allows voting by mail for people with a “disability,” and plaintiffs argued that the definition of “disability” should be expanded “to include lack of immunity from COVID-19 and fear of infection at polling places.” After a state court judge agreed with plaintiffs’ expanded interpretation and determined that any voter without established COVID-19 immunity could vote by mail in the July 2020 elections, Attorney General Paxton appealed the ruling and threatened criminal prosecution of individuals following the order. Plaintiffs sought a preliminary injunction from the federal district court to resolve this issue and expand voting by mail ahead of the July 2020 election. The court determined lack of immunity from COVID-19 is a “physical condition” and accordingly determined that it is a “disability” as that term is used in the Texas Election Code because a “disability” includes a physical condition “that limits a person’s movements, sense, or activities.” Court determined that the fear of contracting COVID-19 should not impede on the right to vote and thus ordered that all Texas voters can vote by mail “during the pendency of pandemic circumstances.”
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Expert Testimony; Personal Injury Perez v. Boecken, No. SA-19-CV-00375-XR (Rodriguez, X., June 10, 2020). In this personal injury case, plaintiff was involved in an accident with a commercial truck. Plaintiff designated a board-certified neurosurgeon as an expert. The neurosurgeon had also treated Plaintiff for neck pain related to the accident. Defendants moved to exclude the neurosurgeon’s testimony and records arguing that: (1) plaintiff failed to disclose the neurosurgeon as an expert; (2) the neurosurgeon’s opinions regarding the causation of injuries are unreliable; and (3) the neurosurgeon’s opinions regarding medical expenses are unreliable and inadmissible. In his deposition, the neurosurgeon relied on a police officer’s crash report and stated that he reviewed a PowerPoint presented to him by plaintiff’s counsel prior to the deposition. Accordingly, the court agreed with defendants that the neurosurgeon’s testimony extended past that of a treating physician and that plaintiff did not properly disclose the neurosurgeon as a testifying expert that must provide a report. The court excluded all testimony that extended past the testimony that a treating physician could provide but allowed the neurosurgeon to provide his opinion regarding causation and medical expenses in his capacity as a treating physician.
Civil Rights; Sixth Amendment United States v. Rodas, SA-04-CR-517-XR (Rodriguez, X., June 19, 2020). An undercover DEA operation led to defendant’s indictment in 2004. Although the Government attempted to locate and arrest defendant between 2005 and 2019, the Government understood that defendant was living in Honduras and the search for him slowed down. Defendant’s extensive use of alternate names allowed him to eventually get back into the United States, even though he was apprehended by Border Patrol. In 2018, the United States Marshals Service discovered that defendant was listed as an emergency contact on his wife’s driver’s license application under one of his alternate names. Defendant was then arrested in January 2019. However, the Government produced documents indicating that defendant’s brother assumed his identity. Defendant moved to dismiss his indictment and presented numerous arguments regarding why the passing of time since his indictment prejudices his ability to present exculpatory evidence. While the Government argued that the existence of any exculpatory evidence was speculative, the court ultimately granted defendant’s motion and dismissed the indictment for violating defendant’s right to a speedy trial.
Summary Judgment; Deemed Admissions Batyukova v. Doege, 5:19-cv-0391-JKPESC (Pulliam, J., May 15, 2020). After successive dismissals of claims against various city and county law enforcement entities and employees, the court granted summary judgment in favor of the remaining defendant, Deputy Doege, as to all of plaintiff’s 42 U.S.C. § 1983 claims. Doege shot plaintiff, who displayed erratic behavior, when she allegedly moved her hands toward her waistband. During discovery, and despite being reminded by opposing counsel of having missed a response deadline, plaintiff failed to respond to requests for admission, and instead promised to respond on the day of her deposition (also the last day of discovery). Plaintiff never responded to the requests for admission. When defendant moved for summary judgment using the deemed admissions, plaintiff served her responses and two weeks later filed a motion to amend her discovery responses. The court denied the motion to amend because plaintiff failed to adequately justify the reasons for her delay under the circumstances. The court also found that defendant would be prejudiced because the deemed admissions were consistent with the record evidence. The court granted summary judgment on plaintiff’s retaliation claim, reasoning that plaintiff did not present evidence that her speech and expressive conduct was a “but for” cause of the shooting. The court granted summary judgment on plaintiff’s Fourteenth Amendment medical care claim because the deemed admissions and other evidence showed that defendant was not deliberately indifferent to plaintiff’s need for medical care. The court granted summary judgment on plaintiff’s excessive force claim, finding that a reasonable officer in defendant’s position would have believed plaintiff posed an immediate threat to his safety and that his decision to use deadly force was objectively reasonable under the circumstances. On summary judgment, a court may assign greater weight to facts evident from a video recording taken at the scene.
Immunity; Leave to Amend
Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.
Alamo Forensic Servs., LLC v. Bexar County, No. SA-20-CV-38-XR (Rodriguez, X., May 19, 2020). Plaintiff sued Bexar County for non-payment for services under an otherwise terminated contract. The court granted the County’s motion to dismiss for failure to state a claim. The Texas Local Government Code provides for immunity from suit, and although such immunity can be waived in certain instances, section 271.156 of the Texas Local Government Code expressly exempts suits in federal court from that waiver. Plaintiff also lacked standing to assert a First Amendment claim on behalf of its non-party owner. Because plaintiff’s due process claim and First Amendment retaliation claim were futile, the court denied plaintiff’s motion to amend. In addition to immunity, the implied contract that plaintiff relied on was unenforceable because the County employee who stated the contract would “work itself out” did not have authority to bind the County. As to retaliation for engaging in protected speech, the speech at issue occurred after the County’s failure to pay and, therefore, could not have caused the alleged retaliation.
Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.
Charles Carter practices commercial litigation with Dykema Gossett PLLC.
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bar business
Well-Informed Members Ready to Serve Online
SABAProud Inform • Educate • Connect • Serve
W
hether in-person or online, t he San Antonio Bar Association (SABA) is committed to helping members stay up to date with the latest news and information plus enable members to serve the greater community of San Antonio. SABA now offers, and will continue to offer, the following ways for members to stay informed and to serve others:
To date, SABA has served more than 1,500 attorneys through eight virtual Town Halls hosted by various judges, county clerks, and court staff.
Staying Informed Tailored Online and Print Resources To date, SABA has served more than 1,500 attorneys through eight virtual Town Halls hosted by various judges, county clerks, and court staff. Town Halls are typically hosted in the late afternoon on a Thursday or Friday, and they are expected to continue throughout the fall. “Attorneys and judges have told us they like the regularly scheduled platforms to share new operating plans and to have a forum for dialog between the bench and members of the bar,” reports SABA President David Evans. You can check your SABA Weekly email—delivered to your inbox every Thursday—for the next Town Hall. SABA Weekly is a helpful reminder of weekly events and deadlines and includes classified ads. 26 San Antonio Lawyer | sabar.org
SABA also delivers its monthly newsletter, Subpoena, via email. Subpoena is the best way to stay informed about your colleagues’ news and the legal community. You can share your professional news, accolades, promotions, office moves, and new firm information at https://sanantoniobar.org/ index.cfm?pg=submityournews. You can also access your colleagues’ contact information in SABA’s 2020 Print Directory, which is now in a new format and fresh off the presses. The most current member directory information, however, can be accessed through your SABA Member Portal, which you can bookmark in your phone: sabar.org.
Staying Connected In addition to providing professional information and updates, SABA organizes friendly and informative gatherings online. SABA members have hosted happy hours, garden-club events, evenings of music, and
Trivia twice! Thank you, Marty Truss and Barrett Shipp, for hosting, heckling the contestants, and serving as the best dynamicduo Trivia hosts a bar association could hope for. Congratulations to Trivia I winners: Shawn Mechler, Dan Pacheco, and Lisa Dossmann and family; and Trivia II winners: Chris McKinney and Julie Truss. Stay tuned for details about Trivia Tournament III— Team edition!
Serving Others If your family or friends need legal help, the fastest way to connect them to the help they seek is through SABA’s newly updated, user-friendly website, sabar.org/help. This website guides those seeking legal advice to the best resources. Users can register to talk to a volunteer attorney (Ask a Lawyer), review legal aid (pro bono links), or get matched to a private attorney in the right practice area (Lawyer Referral Service). There are even resources for users who want to do the work themselves (bilingual pro se site).
beneficial for all. As Cynthia Maldonado explains, “Honestly, I volunteered out of a bit of selfishness. During this pandemic and the stress and uncertainty of it all, helping others is grounding, fulfilling, and reduces my anxiety about the state of the world.” Kortney Kloppe-Orton adds, “It is a great way to help people pro bono without a longterm commitment or stress from working in an area of law with which you aren’t familiar. It is really fun.”
Lawyer Referral Service Now Online 24-7 SABA’s Lawyer Referral Service (LRS) intake has moved completely online and is available 24-7. Users can now answer a series of questions without having to talk with someone in person. “Some issues are embarrassing or upsetting,” says LRS Director Sylvia Hernandez, “and callers can
“Honestly, I volunteered [ for Ask a Lawyer] out of a bit of selfishness. During this pandemic and the stress and uncertainty of it all, helping others is grounding, fulfilling, and reduces my anxiety about the state of the world.” Lawyers who are interested in joining the SABA Lawyer Referral Service should contact LRS Director Sylvia Hernandez at (210)-227-8822 and receive an orientation of the service. Soon, LRS Attorneys will also be able to opt into a Moderate Means Panel—
Ask A Lawyer Launches Virtually In July, the first Ask A Lawyer series was launched as a virtual program. Volunteer attorneys provided simple legal guidance, legal resource information, and referrals where appropriate. The calls took fifteen (15) minutes, and the volunteers identified themselves as volunteer attorneys and remained anonymous. The user feedback was very positive, and users appreciated the opportunity to talk to a legal professional in an informal setting. The next Ask A Lawyer series begins September 22, 2020. To serve as a volunteer attorney, please contact Bexar Outreach Attorney Whitney Thomas via email at whitneyt@sabar.org. SABA wishes to recognize and thank its Ask a Lawyer attorney volunteers: • Celinda Guerra – Flume Law Firm, L.L.P.; • Rudolph Jass – Rudolph F. Jass, Jr., PLLC; • Eduardo Juarez – United States Equal Employment Opportunity Commission; • Kortney Kloppe-Orton – Pipkin Law; • Cynthia Maldonado – Cordell & Cordell; • James Norman – Norman & Oliver, P.C.; • Roxanne Parker – R L Parker Law, PLLC; and • Oscar Villarreal – Oscar H. Villarreal, Attorney at Law. Do not be shy about participating in Ask a Lawyer because the experience has proven
be reluctant to share details on the phone.” Hernandez notes that putting LRS online has ensured twenty-four-hour availability. Users receive an instant referral, and the attorneys receive the potential new client information at the same time. Moving LRS to the new resource website is much more efficient for users and LRS attorneys, and it reduces the numbers of LRS callers who were actually seeking pro bono or pro se information rather than a lawyer referral. People in crisis want information fast, and the new site guides them to the right information quickly.
designed to bridge an often-forgotten gap in access to justice. Panel members will pledge to provide legal services to individuals and families whose income exceeds the income qualification limits for pro bono services, but who are nevertheless unable to afford retail legal services. With efficiency in mind, the Panel will use technology and communication tools to serve moderate-means clients effectively and at an affordable fee.
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A Big Thank You to our San Antonio Bar Association Annual Sponsors!
To learn more about SABA sponsorships, visit sanantoniobar.org.
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Book Review
The Home By Frank Southers By Thomas H. Veitch
F
rank Southers was a well-respected and successful trial lawyer in the South Texas area for several decades. Southers has since moved on to become a successful writer, having published seven novels, and now resides in Carmel-bythe-Sea, California. Southers’ first five novels, not surprisingly, were thrillers involving San Antonio lawyers and their disciplinary troubles. In his latest novel, The Home, Southers has shifted to a more simplistic genre based on a true story. This is a coming of age novel narrated by the protagonist, thirteen-year-old Johnny Porter. Johnny has a poignant story to tell, and the author deftly sets the stage in the very first paragraph, explaining that Johnny’s father is probably dying of cancer and is very, very fearful of what will become of his son. It is truly a simple story, but it conveys some important and powerful messages. Johnny’s story accentuates the fortunes and adversities of being raised in poverty, the father/son relationship, and ultimately living in an orphanage. Through Johnny’s narration, we feel the fear and uncertainty he sustained at the death of his father. Throughout the story, however, we also experience Johnny’s love and respect for his father and appreciation for the life lessons his father conveyed to him. These lessons were instrumental in his coping with life without his father. We also learn that Johnny’s mother was a “derelict,” causing his father to secure Johnny’s placement in an orphanage, hidden from his mother and her verboten lifestyle. As Johnny’s story evolves, we experience his feelings and embarrassment about being poor and then, literally, becoming an orphan. As he copes with these matters, we also learn that Johnny is an intelligent kid and well-grounded by his father’s guidance. The next phase of the story focuses on Johnny’s immersion and development at St. Paul’s Children’s Home, a Catholic institution. In time, Johnny tells us that he grew to hate
the orphanage along with its onerous rules and regulations. However, with insight, we also recognize that Johnny is respectful and appreciates the support he received from the nuns shaping his life. Overall, though, Johnny simply yearns to belong to someone. As he narrates, Johnny introduces us to several people that were involved in his life, some of whom he loved and others he disliked. Through these encounters, we experience Johnny’s emotions and his ups and downs, as he ponders his future and wonders when he will ever be able to leave the orphanage. Clearly, he wants a family, and he wants to have a successful life. In the author’s epilogue, we learn that, ultimately, Johnny becomes a successful lawyer, hopefully like the author himself, rather than one of the troubled lawyers depicted in the author’s thriller novels. This is definitely a worthy story with life messages. At times, I felt some of the dialogue was a bit cluttered, wandering off on extraneous thoughts, some of which did not resonate as coming from a thirteen-year-old boy. But this does not detract from the story or the messages it contains. Having known Frank for many years, it was a distinct pleasure to read The Home and share these thoughts. Thomas H. Veitch is a shareholder at Langley & Banack, Inc. where his practice focuses on Insurance Law and Claims, and Estate Planning and Probate Law (contested, complicated, or contentious).
Self-published, 2019 311 pages Available in Paperback and Kindle at Amazon.com
Johnny has a poignant story to tell, and the author deftly sets the stage in the very first paragraph, explaining that Johnny’s father is probably dying of cancer and is very, very fearful of what will become of his son. It is truly a simple story, but it conveys some important and powerful messages.
September–October 2020
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San Antonio Lawyer 29
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