Tarrant County Bar Association Bar Bulletin (March/April 2023)

PRESIDENT'S PAGE

KAREN DENNEY 2022–2023 TCBA President

Ayear goes quickly, and it feels as if a Tarrant County Bar Association bar year (which also is actually one year in length), goes even quicker. I only have three months left as your Bar President, and it seems the time is flying.

In addition to all the CLEs and other events that the TCBA hosts every month and about which you can read in the weekly emails the TCBA sends, the TCBA Board and other volunteers have accomplished other important tasks this year as well. During the 2021-2022 TCBA Bar year under the leadership and direction of then TCBA President Kimberly Naylor, we began the process of obtaining benefit plans for the TCBA employees to help reward, attract and retain our TCBA staff members. The TCBA Compensation Committee – TCBA Board Vice President Scott Lindsey, Secretary-Treasurer Marvina Robinson, Director Cheryl Leb, and I – completed this project in December 2022 with the unanimous support of the Tarrant County Bar Foundation Board and the assistance of Executive Director Kayla Dailey. As of January 2023, TCBA employees have health, dental, and vision benefit plans in which they may participate.

Roland Johnson and Immediate Past President Kimberly Naylor led another significant project through completion. Roland and Kimberly Co-Chaired the TCBA Strategic Planning Committee this year, and, after several meetings and work outside these meetings by Roland, Kimberly, Director Aleed Rivera, Director Lyndsay Newell, and myself, the TCBA now has a strategic plan. This strategic plan, which the TCBA Board adopted in February 2023, will serve as a document to help focus the TCBA staff and leaders on the TCBA’s longstanding mission and act as a springboard for TCBA initiatives by future TCBA leaders.

The TCBA Board, with additional work by President-Elect Lu Pham, Secretary-Treasurer Marvina Robinson, Director Lyndsay Newell, Executive Director Kayla Dailey, and myself, also conducted a review and analysis of the TCBA membership dues structure. The TCBA membership dues had not changed in almost ten years, with our dues being far lower than the other large bar associations in Texas, and events and other benefits being provided to our members continuing to increase in cost. After much discussion, in January 2023, the TCBA Board voted to change the TCBA annual membership dues

structure in the following manner to go into effect for the 20232024 TCBA bar year:

2023-2024 Annual Membership Dues

Š Law Student - Free

Š Attorney (licensed less than 5 years) - $125

Š Attorney (licensed 5 or more years) - $190

Š Government Attorneys/Judiciary (licensed less than 2 years) - $90

Š Government Attorneys/Judiciary (licensed 2-4 years) - $110

Š Government Attorneys/Judiciary (licensed 5 or more years) - $130

Š Faculty Member - $130

Š Associate Member (non-lawyers, non-voting) - $150

Š Legal Staff Membership - $40

With these changes, the TCBA continues to have the lowest annual membership dues of the large Texas bar associations but can better keep pace with the cost increases that come with running an association and providing the many member benefits that come with TCBA annual membership.

The TCBA Board and other volunteers have accomplished a lot this year, and, if you see any of them, please thank them for their hard work. However, we still have approximately one-quarter of the bar year left. We have more to do and are committed to seeing other projects through completion this year to serve you and the other TCBA members. g

Tarrant County Bar Association

817.338.4092 ▪ Fax 817.335.9238

website: www.tarrantbar.org

email: tcba@tarrantbar.org

President.........................................Karen Denney

President-Elect.........................................Lu Pham

Vice President...................................Scott Lindsey

Secretary-Treasurer.................Marvina Robinson

Director.........................................John Brookman

Director..................................................Cheryl Leb

Director.......................................Michael McBride

Director..............................................Bryan Bruner

Director..........................................Lyndsay Newell

Director...........................................Angel Williams

Appointed Director............................Christy Jack

Appointed Director...........................Aleed Rivera

County Young Lawyers Association

Fall 2022 President.....................Aulstin Gardiner

Fall 2023 President....................Elizabeth Haslam

Immediate Past President..........Kimberly Naylor Executive Director.............................Kayla Dailey

6

Director..................................................Jeff Cochran

Graphics/Production...................Elizabeth Banda

The Tarrant County Bar Bulletin is a bi-monthly publication of the Tarrant County Bar Association. Articles, photos, suggestions or comments should be directed to: elizabeth@tarrantbar.org

1315 Calhoun Street ▪ Fort Worth, TX 76102-6504

Deadline for submission:

December 1........................................January/February

February 1...................................................March/April

April 1...............................................................May/June

June 1.............................................................July/August

August 1..........................................September/October

October 1.....................................November/December

Articles published in the Bar Bulletin do not necessarily reflect the opinions of the Tarrant County Bar Association, its officers or the Board of Directors. Advertisements and feature articles should not be considered an endorsement of any service, product, program, seminar or event.

Members of the 2022-2023 100 Club

*List Reflected Below is as of March 22, 2023

Adams, Lynch & Loftin, P.C

Albert Neely & Kuhlmann LLP

Anderson & Cummings, LLP

Baker Monroe, PLLC

Barlow Garsek & Simon, LLP

Blaies & Hightower, LLP

Bonds Ellis Eppich Schafer Jones, LLP

Bourland, Wall & Wenzel, P.C.

Brackett & Ellis, P.C.

Broude Jennings & McGlinchey PC

Brown, Proctor & Howell, LLP

Curnutt & Hafer, LLP

Decker Jones, P.C.

Dismuke & Waters, P.C.

Forshey & Prostok, LLP

Freeman Mills P.C.

Griffith, Jay, & Michel, LLP

Harris, Finley & Bogle, P.C.

Harrison Steck, P.C.

Haynes and Boone, LLP

K & L Gates LLP

Kelly Hart & Hallman LLP

Linebarger Goggan Blair & Sampson, LLP

McDonald Sanders, P.C.

Murphy Mahon Keffler & Farrier, LLP

Naman Howell Smith & Lee, PLLC

Nelson Bumgardner Conroy, P.C.

Noteboom Law Firm

Padfield & Stout, LLP

Pham Harrison, LLP

Phelps Dunbar, LLP

Pope, Hardwicke, Christie, Schell, Kelly & Taplett, LLP

Robbins Travis, PLLC

Ross & Matthews P.C.

Second Court Of Appeals

Phil Sorrells, Criminal District Attorney's Office

Taylor, Olson, Adkins, Sralla & Elam, LLP

The Blum Firm, P.C.

The Colaneri Firm, P.C.

Udeshi Law Firm, PLLC

Underwood Law Firm, PLLC

Varghese Summersett PLLC

Watson, Caraway, Midkiff & Luningham, LLP

Whitaker Chalk Swindle & Schwartz, PLLC

Whitley Penn, LLP

Wick Phillips

Winstead PC

To be eligible for the 100 Club, any law firm, government agency, law school, or corporate legal department that has four or more members and attains 100% TCBA membership compliance for the 2022–2023 bar year qualifies for the “100 Club.” The firms/organizations listed (above) have already paid their membership dues and qualify for 100 Club membership for the new bar year.

Any firm/organization that qualifies in the future will have its name published in every issue of the Bar Bulletin for this bar year. TCBA is proud of the participation of these law firms and other groups. The new bar year began on July 1; if you have not paid your renewal invoice, contact our Membership Director Lauren St. Clair at 817.338.4092 or email her at laurensc@tarrantbar.org.

YLA SNAPSHOT

AULSTIN GARDINER 2022–2023 TCYLA President

he year is quickly chugging along, and I am astonished that half of my term as President of the Tarrant County Young Lawyer’s Association is complete—where did it all go? I’m lucky to have such a great board and team around me that makes the time really does go by quickly.

Speaking of the team, it is very comforting to know that the current President-Elect Elizabeth Haslam will fit right in as a leader and President of this organization after I roll off. She just finished organizing our inaugural TCYLA Chili CookOff held at Fort Brewery. We had a distinguished panel of expert Chili Judges, including Judge John Eck, Judge Pat Gallagher, Judge David Hagerman, and Fort Worth Paralegal Association President Mandy Sherman. Seven teams competed for Judges’ choice and crowd favorite. A big congratulations to the Judges’ pick, Jane Fowler Law, PLLC. All proceeds from the admission, entry fees, donations from our sponsors, and raffle prizes went to the TCYLA Suitcase Project, which purchases suitcases and duffle bags for children in foster care, so they have something to put their clothes in when transitioning into care or to their permanent placement. We also want to thank our many sponsors for this event. The prize money that was awarded to the Judges’ pick and the crowd favorite was graciously donated back to the cause by both contestants and for that, we thank you! If you would like to support this cause and make a donation or you have some old suitcases/duffle bags to depart with, please contact Elizabeth Haslam at elizabeth@hg555.com.

As some of you may be aware, we have been adding more episodes to our TCYLA President’s Podcast, which interviews local attorneys to discuss past cases and lessons that are valuable for young attorneys, or really any attorney. We posted our fifth episode with our most recent guest Christy Jack of Varghese Summersett, PLLC, where she shared her stories for our ongoing series, “Huh?! Things I Wish I Knew as a Young Attorney: Winning the “Unwinnable” Case.” If you have not listened to an episode yet, it can be found virtually everywhere you stream your podcasts. Previous to that, we have had Taylor Ferguson, Brian Singleterry, Andrea Palmer, Micheal Schneider, and James Teel as guests. If you have a great case or legal story that you feel could be a valuable lesson for young

Tattorneys and would like to be a guest, feel free to reach out to me at wagardiner@tarrantcountytx.gov.

As the weather warms up, the birds start singing, and the bees start buzzing, that can only mean one thing is just on the horizon: Spring Fiesta. The TCYLA Spring Fiesta will occur on April 20, 2023 at our usual location of Joe T. Garcia’s. We will have live music, food, drinks, raffle prizes, and a silent auction and it is sure to be a good time for all—who can say no to Joe T. Garcia’s? If you are interested in becoming a sponsor or would like to donate to the raffle prizes/silent auction, please contact Sarah Brown at srbrown@tarrantcountytx.gov. We hope to see you there. g

By Lauren St. Clair, Membership Director

TCBA Extended Membership Promotion Begins April 1!

There’s no better time to get involved with the TCBA! The annual TCBA Bench Bar Conference will be April 14th – 16th at Horseshoe Bay Resort – sign up now for this member-favorite event!

April 1 marks the beginning of our extended membership promotion for those who are not current TCBA members. Please encourage your colleagues who are not currently TCBA members to consider joining and taking advantage of this promotion to have access to all TCBA member benefits and events from now until June 2024! If you are a current TCBA member, you can also spring into membership savings

BENCH BAR COMMITTEE

and increase your client list by taking advantage our Lawyer Referral and Information Service extended membership promotion which also begins on April 1. If you would like more information about the LRIS program, contact our LRIS Director at carolina@tarrantbar.org.

We appreciate your continued support of the TCBA and please feel free to reach out to me at laurensc@tarrantbar.org if you are interested in more information about TCBA membership, upcoming events, or getting involved by joining a section a committee. We hope to see you at the next TCBA event! g

By Dana Manry, KoonsFuller, P.C. Bench Bar Committee

XXVIII Bench Bar Conference: Survivor is April 14-16!

On behalf of the 2023 Bench Bar Committee, we are pleased to have prepared a great program for all attendees. Historically, Bench Bar has always presented an excellent opportunity for members of the bar to socialize and network with each other as well as members of the judiciary while also participating in the latest continuing legal education.

This year’s Bench Bar theme is “Survivor: Outwit, Outplay and Outlast.” We believe the theme reflects the modern practice of law in all areas. To help us navigate the terrain, we are very pleased to announce that we have confirmed multiple members of the Tarrant County judiciary to present on various panels over a wide variety of topics. Additionally, we have assembled an excellent group of speakers to enlighten us in different areas of the law. The committee has worked toward the goal of putting together the best presentation of the year, and we believed we have accomplished that goal.Of course, all work and no play is never good for anyone, so we have planned many fun activities at which we can socialize and make new friendships. We will once again be hosting the Judges’ Cup golf tournament – it is filling up fast, but we still have openings available for both the “play all the time” golfers along with the “I haven’t touched a golf club in years” enthusiasts.

For those not completely up for a full round of golf, there is a mini golf tournament which may be more your speed. If that’s still “too fast” for you, we have the annual wine tasting

as well. Additionally, we encourage everyone to join the Lawyer Olympics which is a great way to make new friends.

We still have a few sponsorship opportunities available for those firms and attorneys who would like to ensure the continued success of this amazing conference. If you are so inclined, please contact laurensc@tarrantbar.org.

By far, the best part of this annual tradition is the attendees. None of this is possible without the continued attendance of previous attendees along with the first timers. Please register as soon as possible and plan on joining us. See you at the bay! g

BENCH BAR 2023 CONFERENCE DETAILS

JOIN FELLOW MEMBERS

Join fellow members of the Bench & Bar at the beautiful Horseshoe Bay Resort on Lake LBJ, April 14-16, 2023, for a memorable opportunity to network and build relationships while enjoying several interesting speakers and presentations. This resort features numerous great amenities, exceptional dining, and a perfect setting for our conference social activities.

RECRUIT YOUR FRIENDS

Each returning Bench Bar attendee is challenged to recruit as many first time attendees for Bench Bar XXVIII as possible. The attorney who recruits the most first time attendees who register, pay and attend will win a free registration to Bench Bar Conference 2024.

LAWYER OLYMPICS

All first-time (and returning) Bench Bar Conference attendees are encouraged to participate in the annual Lawyer Olympics activity on Friday. Winning teams will be announced and receive their awards at the Saturday evening Awards Dinner.

JUDGES’ CUP

Envy is a powerful emotion! If your name is not engraved on the “Judges’ Cup,” then start practicing now. The traveling Judges’ Cup Trophy will be presented to the winners of the Saturday Golf Tournament during the Saturday evening Awards Presentation.

BARLOW BIG HEART AWARD

James B. Barlow was a loyal attendee and supporter of the TCBA Bench Bar Conference. Jim made everyone feel welcome and was a positive role model for all who attended the conference. In memory and special recognition of him, attendees can nominate a member who actively promotes positive relationships between the bench and bar during the conference. The attendee who is selected will receive the James Barlow Big Heart Award.

SPONSORED EVENTS

Friday afternoon will feature a mini golf activity open to all attendees at the Whitewater Putting Course. Friday evening will be a Casino Night & (Informal) Formal. You are welcome to come as you are (casual), but prizes will be awarded to the best/most creative formal wear and best dancer. Saturday afternoon will have a wine tasting event. On Saturday evening, conference award recipients will be announced at the Awards Dinner. Attire will be similar to Casino Night.

HOTEL ACTIVITIES

Horseshoe Bay has numerous amenities – pools, water activities, Bayside Spa, tennis, fitness center, Birds of the Bay, the Whitewater Golf Course (miniature golf/ $15) – and more. Information and applicable charges are available at www.hsbresort.com. You may make reservations for these activities directly with the hotel.

DIRECTIONS

Horseshoe Bay Resort

200 Hi Circle North, Horseshoe Bay, TX 78657 877.611.0112

From Fort Worth (approx. 3.5hrs.) Take Hwy 281 South to Marble Falls. Go through Marble Falls and cross over the bridge. Turn right on FM 2147 at the first light after the bridge. Go approximately 5.25 miles to the main entrance to the resort, and take a right onto Horseshoe Bay Blvd. Follow the circle drive around to the left toward the hotel main entrance. Take your second left into the hotel tower main entrance.

BENCH BAR XXVIII CONFERENCE DETAILS

FRIDAY, APRIL 14, 2023

What Would Ted Lasso Do? (0.5 Hour Ethics CLE)

Cindy Tisdale, Goranson Bain Ausley, PLLC

Ignorance Is Not Bliss, Or What You Don’t Know Can Hurt You (0.75 Hour CLE)

Amy Allen, Legal Aid of NorthWest Texas

James Ince, Legal Aid of NorthWest Texas

Using Dispute Resolution/Restorative Practices In Schools And For Juveniles (0.75 Hour CLE)

Janet Denton, Tarrant County Dispute Resolution Program

Susan Hutchison, Hutchison & Foreman, PLLC

Break

Family Law - When Friends Of Friends Come Calling (1.00 Hour CLE)

Spencer Nilsson, Nilsson Legal Group, PLLC

What Immigration Attorneys Wish You Knew (1.00 Hour CLE)

Katie Hawkins, Chavez & Valko, LLP

Lunch

Criminal Law Primer (1.00 Hour CLE)

Cody Cofer, Cofer Luster Law Firm, P.C.

Protective Orders (1.00 Hour CLE)

Assistant Criminal District Attorney Norma Bazán, Tarrant County Criminal District Attorney’s Office

Cynthia Ince, Legal Aid of NorthWest Texas

Lawyer Olympics, Sponsored by KoonsFuller, P.C./Naman, Howell, Smith & Lee, PLLC

Mini Golf

Dinner

Casino Night, Sponsored by Law Offices of Laird &McCloskey

CLE/Speakers Sponsored by Kelly Hart & Hallman LLP

SATURDAY, APRIL 15, 2023

Ethics BINGO (0.5 Hour Ethics CLE)

Shannon Pritchard, SSP Family Law

Kimberly Stoner, KoonsFuller, P.C.

Evictions Panel (1.00 Hour CLE)

Scott Conyers, Legal Aid of NorthWest Texas

John Corbin, Law Office of John J. Corbin

Sam Johndroe, Johndroe Law, PLLC

Sophie Mathews, Legal Aid of NorthWest Texas

Judge Ralph Swearingin Jr., Justice of the Peace Court 1

Break

Criminal District Attorney’s Office Update (0.5 Hour CLE)

Judge Phil Sorrells, Tarrant County Criminal District Attorney

Criminal Judicial Panel (1.00 Hour CLE)

Moderator:

Judge Robb Catalano, First Assistant, Tarrant County Criminal District Attorney’s Office

Panelists:

Judge David Cook, County Criminal Court No. 1

Judge Ryan Hill, 371st District Court

Judge Eric Starnes, County Criminal Court No. 7

Judge Trent Loftin, County Criminal Court No. 10

Navigating Restrictions on Gun Possession after Bruen: Protective Orders, Bond Orders, and Ordinary, Law-abiding Citizens (0.75 Hour CLE)

Assistant Criminal District Attorney Fredericka Sargent, Civil Division

Post-Conviction, Tarrant County Criminal District Attorney’s Office

Lunch

Judges’ Cup Golf Tournament

Sponsored by Whitaker Chalk Swindle & Schwartz PLLC

Wine Tasting

Sponsored by Edwards Law, PLLC

7:00

Dinner/Awards

Swag Bag/Logo Sponsored by The Medlin Law Firm, PLLC

AND NOW A WORD FROM OUR SECTIONS

By Tracy Card, Office Manager

TCBA Offers 18 Substantive Law Sections

Stay in the Know by Joining a Section Today

Welcome to spring and some (hopefully) nicer weather. Are you in need of some CLE credits? Being active within your section will help keep you up to date on the latest news, speakers, and articles within your area of law as well as keep you in touch with your legal peers. If you have

not participated in any of your section activities, I encourage you to do so. If you have a topic of interest you would like to have passed along, be sure to send that information in; we are happy to pass along your suggestions. Feel free to contact us at tcba@tarrantbar.org. g

ELDON B. MAHON INN OF COURT

By Sarah Hall Hoffman, Pro Bono Programs Director

Tarrant County Bar Foundation Supports the Eldon B. Mahon Inn of Court High School Mock Trial Competition

In January 2023, the Eldon B. Mahon Inn of Court held its ninth Region 11 high school mock trial competition as part of the 44th Annual Texas High School Mock Trial Competition. The Tarrant County Bar Foundation has supported the Eldon B. Mahon Inn of Court’s mock trial competition each year through a grant that underwrites the associated costs of the event.

The mock trial competition was coordinated by the Eldon B. Mahon Inn of Court's Mock Trial Committee, led by Justice Elizabeth Kerr (Second Court of Appeals) and Tori Rhodes (Robbins Travis PLLC). Attorneys, law students, and judges from the Eldon B. Mahon Inn of Court participated in the mock trial as volunteers. The two preliminary rounds of the high school mock trial competition occurred on Saturday, January 21, 2023. Four teams advanced to the semi-final round held on Friday, January 28, at the Family Law Courts Building. Later that evening, teams from Covenant Classical School and Grapevine Faith Christian School participated in the final round presided by Mark Dugan (Decker Jones, P.C.). Covenant Classical School won the competition and also won the Courtroom Artist competition.

Six teams signed up for the competition, and five teams ultimately competed. Teams hailed from high schools in the Decatur, Fort Worth, Grapevine, and Hurst-Euless-Bedford ISDs.

The Eldon B. Mahon Inn of Court extends its appreciation to the many people who supported the event, including its members, the Tarrant County Commissioners who approved access to the courthouse and use of the sheriff deputies for the competition, the family court judges who shared their courtrooms, and the Tarrant County Bar Association members who volunteered for the event. g

Covenant Classical won the Region 11 Mock Trial Competition held on January 28, 2023. The school also won the statewide competition held in March and will represent Texas at the National Mock Trial Championship in Little Rock, Arkansas, May 18-20, 2023.

By Victoria (Tori) Ford Oblon Tarrant County Criminal District Attorney’s Office Appellate Law Section Chair

Reflections and Plans: Appellate Section’s Bar Year in Review

Spring is in the air and with it comes some reflection on this past Bar year and planning our last event of the year! My name is Tori Oblon, and I am the chair of the Appellate Section this year. I am an Assistant Criminal District Attorney at the Tarrant County Criminal District Attorney’s Office. I work in the Post-Conviction Unit where I handle all sorts of matters after conviction, mostly direct appeals and the occasional writ of habeas corpus. I have had the privilege of serving as chair during our section’s return to fully in-person events and it has been wonderful meeting our members face-to-face.

During the pandemic, we actively worked to engage our section members with regular “Brain Brakes” with different courts of appeals. Through these informal thirty-minute discussions with the courts, we got to hear from the courts, the impact of the pandemic, and evolving issues presenting each jurisdiction. Several of our Brain Break recordings remain available on the Appellate Section’s webpage for you to enjoy!

We kicked off this Bar year with our Fall Luncheon, where we were joined by Lisa Hobbs, the Chair-Elect of the Appellate Section of the State Bar of Texas. Lisa reminded our members that the State Bar’s Appellate Section offers online CLE directly related to appellate practice and discussed the hope to revive the Appellate Advocate, the Appellate Section’s quarterly publication. Lisa also presented an interesting CLE on current trends in interlocutory review practice. Lisa’s presentation is available On Demand on the TCBA CLE page!

In December 2022, we had the pleasure of sponsoring

a Christmas Tree for the TCBA Christmas party. While our “Christmas with the Courts” tree—decorated with pictures of the judges from the Texas Supreme Court, Court of Criminal Appeals, and the Second Court of Appeals—did not take home First Place in the decorating contest, it was a joy to gather and decorate the tree. It was also wonderful to return to the TCBA Office for the Christmas party this year to visit and reconnect with our members and others during the holiday season.

The Appellate Section hosted the January Brown Bag at the TCBA Office on January 27. The theme of our Brown Bag was the interplay of state and federal practice. We were fortunate to be joined by Texas Supreme Court Justice Brett Busby, who discussed Texas Supreme Court practice and the differences between practicing in the Texas Supreme Court and SCOTUS. We were also joined by Judge Mark Pittman, Justice Elizabeth Kerr, and Judge Megan Fahey, who collaborated on a panel to discuss appellate practice from their judicial point of view. We also had speakers discuss mandamus proceedings, oral arguments, dismissals under TRCP 91a and FRCP 12(b)(6), and criminal writs of habeas corpus. It was a great CLE! Thank you to everyone who made our Brown Bag a success this year!

The Appellate Section is beginning to plan our final event of the Bar year, our Spring Luncheon. We are looking at changing up the normal lunch and CLE presentation combo, with something a bit more lively! We hope you’ll join us at the end of April for a fun game-show themed CLE! Stay tuned for more information and a finalized date! We hope to see you there! g

By Perry Cockerell, Perry Cockerell, P.C.

Chief Justice Howard Fender

oward Martin Fender served as the seventh Chief Justice of the Second Court of Appeals in Fort Worth from 1983 to 1989. Fender was born on November 23, 1920, in Fort Worth to James Ernest and Katilee Martin Fender. His father was a long time president of Acme Brick. He graduated from Central High School in 1936 and attended Kemper Military Institute in Boonville, Missouri before being appointed to the U.S. Military Academy at West Point. After graduating from the Academy in 1942, Fender served as a captain in the Army Air Forces as a pilot during World War II. He flew in 65 bomber missions over Europe earning him the Distinguished Flying Cross.

After the war, Fender graduated from Washington and Lee University School of Law in Virginia in 1948 and returned to Fort Worth to practice law. In 1952 he was elected Tarrant County District Attorney, prevailing over J.E. Winters. When Fender was elected, Fort Worth had been deeply troubled by convictions against public officials for tax evasion and mishandling of funds. Fender was described as the new 32year-old D.A. “a strapping fellow with a determined look in his eye” and “who forsook the military for the law.” Fender pledged a house-cleaning and said: “I’m not even going to have anyone left to tell us where the cuspidors are located.”

Tarrant County District Attorney

During his term Fender vowed to crack down on gambling in the county. In 1954 a squad of officers directed by Fender rounded up 18 men and truck load of gambling equipment in Haltom City. “I hope that this raid will serve as a warning to others who might think that they could set up gambling operations in this county,” Fender said. Fender served one term as District Attorney and chose not to see reelection in 1958.

Private Practice

The next year Fender entered private practice and set up his law office in Fort Worth in the Continental National Bank Building. Fender was active in the community by serving as president of the Fort Worth Symphony Orchestra Association where he assisted in raising $50,000 for the organization. He was volunteer chairman of the Carter Blood Center.

In 1960 Fender ran for State Representative, Place 4 against George Richardson, but he lost the race.

HAssistant Texas Attorney General

In 1963, Fender decided to move to Austin to accept a position with the Texas Attorney General’s Antitrust Division. As chief of the antitrust division, Fender directed the prosecution of civil cases that arose from the collapse of the Billie Sol Estes grain and fertilizer empire.

In 1968, Fender, serving as Assistant Texas Attorney General faced a difficult case that made news headlines across the state. Following a speech by President Johnson dedicating Killeen Junior College, three men protested the Vietnam war and were arrested. The charges were later dropped, but the men filed suit in federal court and sought an injunction to declare the Texas breach of the peace law, Article 474 of the Texas Penal Code as unconstitutional. The court set bail at $500 for each of the defendants. The case came down to the interpretation of a statute that contained the words “loud and vociferous … language … in a manner calculated to disturb the person or persons present.”

Fender argued in the three-judge District Court that the law was constitutional because it spelled out how the law could be violated. He argued that President Kennedy’s assassination should make them understand why police reacted so fast in arresting the protesters. “It would be a terrible thing to wait until the gun is fired to protect the President,” Fender told the judges. Fender contended that the hearing on an injunction was unnecessary because the charges were dropped.The court found the statute impermissible and unconstitutionally broad. Comm. to End War in Viet Nam v. Gunn, 289 F. Supp. 469, 475 (W.D. Tex. 1968).

Return to Tarrant County

While in Austin, Fender sought to return to Fort Worth and longed to serve in the judiciary. In 1967 Fender sought the appointment to the County Criminal Court No. 3 in Tarrant County, but the appointment went to Marvin Simpson Jr.

In 1973, Fender rejoined the Tarrant County District Attorney’s Office by heading the appellate division. Fender sought the judicial appointment to the newly created 213th District Court in 1974, but that appointment went to Tom Cave.

Undeterred, in 1976 Fender ran for the County Criminal Court No. 4 but lost to Pete Perez in the Democratic primary.

Criminal District Court No. 2

Fender’s persistence paid off in 1978 when Governor Dolph Briscoe appointed him to Criminal District Court No. 2, after he was selected by the Democrat precinct delegates to replace J.E. Winters who retired from the court. Fender had

no opponent in the fall general election.

In 1980 Fender won a four-year term as judge of the Criminal District Court No. 2 after defeating Jack Cook and Max Blankenship in the Democrat primary. Fender prevailed in the primary runoff.

Chief Justice

Two years into his term on the district court, Fender decided to run for the chief justice position on the Second Court of Appeals. In January 1982, Fender announced his race against Chief Justice Frank Massey. Massey was 70 years old and could not complete a full term due to an age limitation. The race created a showdown over the high court position in the Democratic primary.

Fender campaigned by noting that the jurisdiction of the appellate courts changed to make them responsible for criminal appeals. “I feel there is an urgent need to have a judge with expertise on this court,” Fender said. Fender defeated Massey in the Democrat primary unseating the thirty-year incumbent. Fender ended his term on the Criminal District Court No. 2 after five years.

During his term the appeals court was scheduled to move from the Civil Courts Building to the fourth floor of the old Tarrant County courthouse when renovation was complete. The county spent $900,000 renovating the fourth floor, including $112,000 for a new ceiling in the law library. Fender argued there was not enough space in the courthouse for the six judges and 21 staff members.

In 1983 Fender went to Austin to lobby for a new court of appeals. County Judge Mike Moncrief accused him of “dirty pool” and said that the court should be happy to move into the old courthouse that was renovated for $9.1 million dollars. Fender said he tried to talk with Moncrief but Moncrief would not call him back.

During his one term on the court. Fender wrote close to 500 opinions as chief justice generally divided equally between civil and criminal cases. Fender authored two interesting civil cases that involved unique issues in the law. One was Liberty Enterprises, Inc. v. Moore Transp. Co., Inc., 690 S.W.2d 570 (Tex. 1985) where an out of state defendant suffered a default judgment and agreed to an order granting a new trial. The agreed order made no ruling on whether the defendant could contest jurisdiction by filing a motion under rule 120a of the Texas Rules of Civil Procedure. The trial court held that the defendant waived the special appearance by agreeing to a new trial. The court of appeals reversed and after determining the merits of the entire case, remanded with instructions that the trial court conduct a hearing on the special appearance. Chief Justice Fender concurred and dissented and wrote that the defendant’s conduct constituted a general appearance and foreclosed a subsequent hearing on the plea to the jurisdiction. Justice Ashworth wrote separately that once the court remanded for a special appearance that it could not rule on the remaining points of error as that was an advisory opinion. The Texas Supreme Court reversed and affirmed the trial court

ruling and held that the defendant’s conduct was a general appearance. The high court’s ruling was the same as advocated by Chief Justice Fender in his opinion.

Another case was Daughtrey v. Super Spray, Inc., 738 S. W.2d 785, 787 (Tex. App.—Fort Worth 1987, no writ) were the court ruled that after a party had properly requested findings of fact and conclusions of law and the trial court failed to issue the findings, “instead of reversing the judgment, the proper order is one directing the trial court to file its findings of fact and conclusions of law in accordance with TEX.R.CIV.P. 297.” Fender cited to two prior opinions from other courts of civil appeals that had reached a similar conclusion.

1988 Elections

In 1988 things changed politically when the GOP swept the Tarrant County courthouse. Fender won the Tarrant County Bar poll by 972 to 469 against Republican Tod Weaver. Weaver ran on the position that the courts of appeals needed to be bipartisan. Weaver defeated Fender in the general election.

Never giving up, in 1988, Fender was appointed to the County Criminal Court No. 7. The next year, Fender switched to the Republican Party and served on the court until 1996, when he lost to Cheril Hardy in the GOP primary. Fender did not campaign in his race against Hardy. “Maybe the time has come for me to move on to something else,” he said. “I thought it was time to let the people determine whether I ought to stay there or not, and I accept their verdict.”

During his years as a trial court and appellate court judge, Fender was known as the “fashion critic judge.” For those who wore jeans into his courtroom, Fender had a speech about the history of Levi Strauss and how those clothes were developed for men laying railroad tracks and working in the California gold mines, but they had no place in a court of law, he said.

Fender died on January 26, 2008 at the age of 87. His funeral was held at the Chapel of the Intercession at First Presbyterian Church of Fort Worth. He was buried at the Fender plot at Oakwood Cemetery.

Fender’s son Ames Fender a local architect, said, “I personally always took pride in the role my father took in Tarrant County government in politics for decades.” Fender said that his father loved being Chief Justice of the appeals court. “It was one of his favorite positions because of the level of discourse and the level of care and thought that went into everybody involved. He missed the years on the appellate court. He missed the day to day hustle and bustle.”

Postscript

Fender’s mother was the former Katilee Martin whose father was Howard Martin, an attorney in Weatherford. Howard Martin’s brother was Preston Martin, making Katilee Fender and Mary Martin cousins. Therefore, Howard Fender was a second cousin to Larry Hagman, who played J.R. Ewing on the television series, Dallas g

TEXAS LAWYERS FOR TEXAS VETERANS TARRANT COUNTY CHAPTER

By Sarah Hall Hoffman, Pro Bono Programs Director

TLTV Resumes In-Person Monthly Clinics at Fort Worth VA

Texas Lawyers for Texas Veterans is proud to finally be hosting our monthly veteran clinics in person at the Fort Worth VA. Our monthly clinic had to be moved to a remote model in March of 2020 where we assisted veterans with legal consultations on zoom and over the phone. While

still keeping the safety of our veterans and volunteers in mind, we have worked to transition back to in person consultations. If you are interested in volunteering at an upcoming clinic, please contact sarah@tarrantbar.org. g

Robert Blankenship

Scott Conyers

Gregory Jackson

Spencer Mainka

George Muckleroy

Maggie Pfeiffer

Karon Rowden

Melissa Sircar

George White

Civil and Criminal

by Judge Bob McCoy g County Criminal Court No. 3

ASK JUDGE BOB

Judge Bob, what courts are Texas courts of appeal required to follow as to a federal rule of decision?

(“While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”).

Hanover Cas. V. Seven Acres Jewish Care, 654 S.W.3d 495, 503 (Tex.App.—Houston [14th Dist.] 2022).

MOSES’ AND NOAH’S MONTHLY PARAPROSDAKIAN

(a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected; frequently humorous)

We never really grow up; we only learn how to act in public.

DANES’ QUOTE OF THE MONTH

A dog is the only thing on this earth that loves you more than he loves himself. —Josh Billings (Henry Wheeler Shaw), American humorist

CRIMINAL ITEMS OF INTEREST

1.Jury Charge

Under Article 36.14, the trial court is required to give the jury a written charge “setting forth the law applicable to the case.” “As a general matter, definitions for terms that are not statutorily defined are not considered to be the ‘applicable law’ under Article 36.14, and it is thus generally impermissible for the trial court to define those terms in the jury instructions.”

Loving v. State, 630 S.W.3d 284 (Tex.App.—Eastland 2020).

2. Confrontation Clause

The Confrontation Clause bars the admission of out-of-court testimonial statements of a witness unless (1) the witness is unavailable to testify and (2) the defendant had a prior opportunity to cross-examine the witness. Furthermore, the procedural guarantees to confront and cross-examine adverse witnesses applies in both federal and state prosecutions.

Nicholls v. State, 630 S.W.3d 443 (Tex.App.—Eastland 2021).

3. Plain View Doctrine

The plain view doctrine is an exception to the warrant requirement. Under the plain view doctrine, a warrantless seizure by an officer of an item may be reasonable if it comes within his plain view during his lawful presence within a private area.

State v. Watson, 630 S.W.3d 451 (Tex.App.—Eastland 2021).

4. Motion to Suppress

At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses’ credibility, and it may choose to believe or disbelieve all or any part of the witnesses’ testimony.

State v. Negrete, 630 S.W.3d 460 (Tex.App.—Houston [1st Dist.] 2021).

5. Reasonable Suspicion

Reasonable suspicion for a detention exists when a police officer “has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.”

Yoda v. State, 630 S.W.3d 470 (Tex.App.—Eastland 2021).

6. Speedy Trial

The Sixth Amendment to the United States Constitution guarantees the accused in a criminal prosecution the right to a speedy trial. The Texas Constitution provides the same guarantee. Tex. Const. art. 1, § 10. An evaluation of a speedy trial claim includes a consideration of “the length of the delay, to what extent the defendant has asserted his right, and any prejudice suffered by the defendant.”

State v. Lopez, 631 S.W.3d 107 (Tex.Crim.App. 2021).

7. Lesser-included Offenses

An offense is a lesser-included offense if it is “established by proof of the same or less than all the facts required to establish the commission of the offense charged.”

Hernandez v. State, 631 S.W.3d 120 (Tex.Crim.App. 2021).

CIVIL ITEMS OF INTEREST

1. Fraudulent Intent

“Intent is a fact question uniquely within the realm of the trier of fact.”Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432,

Co-Editor Judge Carey Walker, County Criminal Court No. 2

Noah

Moses

434 (Tex. 1986).

Nationstar Mortg. LLC v. Barefoot, 654 S.W. 3d 440, 454 (Tex. App.—Houston [14th Dist.] 2021).

2. Damages

Id. Direct damages compensate the plaintiff for the loss that is conclusively presumed to have been foreseen by the defendant from his wrongful act. Id. Consequential damages, on the other hand, result naturally, but not necessarily, from the defendant’s wrongful acts.

Nationstar Mortg. LLC v. Barefoot, 654 S.W. 3d 440, 456 (Tex. App.—Houston [14th Dist.] 2021).

3. Texas Tort Claims Act

A claimant’s subjective knowledge or lack of knowledge of a condition is not relevant to a court’s determination of whether the condition is a special defect.

Kownslar v. City of Houston, 654 S.W.3d 472, 477 (Tex.App.— Houston [14th Dist.] 2022).

4. Texas Tort Claims Act

If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant, and the government retains its sovereign immunity. City of Houston v. Arellano, 654 S.W.3d 483, 486 (Tex.App.— Houston [14th Dist.] 2022).

5. Construing Insurance Contracts

Courts must “examine the entire agreement and seek to harmonize and give effect to all provisions so that none will be meaningless.” “No one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” “Unless the policy dictates otherwise, [courts] give words and phrases their ordinary and generally accepted meaning, reading them in context and in light of the rules of grammar and common usage.”

Hanover Cas. V. Seven Acres Jewish Care, 654 S.W.3d 495, 499 (Tex.App.—Houston [14th Dist.] 2022).

6. Texas Citizens Participation Act

The TCPA was designed to protect a defendant’s rights of speech, petition, and association while protecting a claimant’s right to pursue valid legal claims for injuries caused by the defendant.

Welsh v. River Hollow Association, 654 S.W.3d 505, 507 (Tex. App.—Houston [14th Dist.] 2022).

7.Offensive-use Doctrine

The offensive-use doctrine prohibits a plaintiff from maintaining evidentiary privileges that protect from discovery outcome-determinative information not otherwise available to a defendant. See id. We outlined three factors relevant to this determination; (1) the party asserting the privilege must be seeking affirmative relief; (2) the privileged

information is such that, if it is believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted; and (3) the disclosure of the confidential communication is the only means by which the aggrieved party may obtain the evidence. Id.

Wagner v. Exxon Mobil Corp., 654 S.W.3d 613, 636 (Tex. App—Houston [14th Dist.] 2022).

LEGAL QUOTE OF THE MONTH

Let us reform our schools, and we shall find little reform needed in our prisons.

—John Ruskin

TRADITIONAL IRISH LAW

If the doctor heals your wound, but it breaks out anew because of his carelessness, neglect, or gross want of skill, he must return the fee you paid. He must also pay you damages as if he himself had wounded you.

OLD NEWS Police Rev Up

Fort Worth hired its first motorcycle policeman on June 1, 1909, 19-year-old Henry Lewis, who piloted a five-horsepower Indian motorcycle. Lewis set up the city’s first speed trap, in the 1100 block of West Seventh Street.

On his first day, he caught more than two dozen motorists exceeding the 10-mph speed limit. He quit for the day when he ran out of tickets. Lewis became police chief in 1933 and retired in 1937. g

Save the Date

Tarrant County Bar Association’s Law Day Awards

Tuesday, May 2, 2023

Hilton Fort Worth

A dvertise

in TCBA’s Bar Bulletin

The Tarrant County Bar Association’s award winning* Bar Bulletin is a multi-faceted journal that is published six times a year for the TCBA’s members. It includes substantive articles, as well as information about membership events and activities. The Bar Bulletin is distributed digitally and by hard copy to the TCBA’s membership. Each issue reaches an average of 2400 readers through email and social media. It is available online on the TCBA’s website.

BEST OVERALL NEWSLETTER

Advertising rates vary, depending on the size and frequency. Rates are available by contacting Elizabeth Banda, Communications Director at elizabeth@tarrantbar.org.

*TCBA’s Bar Bulletin received the 2018, 2019, and 2022 Division III “Stars of Texas Bars Award for Best Overall Newsletter” from the State Bar of Texas.

Tarrant County Volunteer Attorney Services

By Sarah Hall Hoffman, Pro Bono Programs Director

Looking for Ways to Volunteer with TVAS?

Check Out One of the Many Upcoming Clinics We Have for 2023

™ True Worth Place – An ongoing way to help is to sign up for the Legal Resource Center at True Worth Place Day Shelter. Volunteers connect guests with resources in Tarrant County to help them.

™ Uncontested Divorce Clinic – Volunteer attorneys will assist eligible clients with their simple, uncontested divorces.

™ Guardianship Clinic – The goal of this clinic is to assist low-income residents of Tarrant County who need to become the legal guardian of a person who had no feasible alternatives to guardianship.

Do you have a new clinic idea or would like to hear more about our current opportunities? Consider joining the TVAS Committee! You can contact sarah@tarrantbar.org for more information. g

LAWYERS ON THE MOVE &

in the News

If you are a TCBA member and would like to place an announcement in the Bar Bulletin, we would like to hear from you.

Please submit information by email to Elizabeth Banda, Communications Director, at elizabeth@tarrantbar.org.

What LegalLine Participants are Saying

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THANK

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By Sarah Hall Hoffman, Pro Bono Programs Director

22 www.tarrantbar.org ▪ MARCH/APRIL 2023 WWW.TARRANTBAR.ORG/SPRINGFIESTA23

John Barnes

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Upcoming LegalLine Dates

April 13, 2023

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May 11, 2023

Contact me. Together we will chart the course for your success. 817.881.1914 • Kate@AutumnRidgeLPC.com AutumnRidgeLPC.com | 270 Miron Dr. #112, Southlake, TX 76092 The Attorney’s Therapist

Kate Casey, LPC, JD

LegalLine

By M. Jermaine Watson, Esq., Cantey Hanger LLP Bankruptcy Law Section Chair

In re LTL Management, LLC and the Continued Viability of the Texas Two Step

LTL Management, LLC (“LTL”) filed its chapter 11 petition on October 14, 2021, at a time when it faced thousands of lawsuits from consumers alleging that its talcum power caused various cancers. A committee of claimants (“Committee”) moved to dismiss the case shortly after it was filed, but the bankruptcy court held that the LTM was entitled to bankruptcy protection. The Committee appealed the case to the district court, which affirmed the bankruptcy court. The Committee appealed to the 3rd Circuit. On January 30, 2023, the Third Circuit Court of Appeals (“3rd Circuit”) held that LTL, a wholly owned subsidiary of Johnson & Johnson Consumer, Inc. (“NewCo”) filed its chapter 11 case in bad faith and remanded the case back to the bankruptcy court for dismissal.

The opinion is noteworthy because it spotlights Texas divisional merger provisions of the Texas Business and Commerce Code (“ TBC”). Specifically, the ability of a company to merge itself into two separate entities. Under the TBC, when the original entity does not survive the merger, it allocates property, liabilities, and obligations among one or more new entities under a merger plan. Once the merger is complete, the original entity’s existence ends. Neither the original entity nor the new entities are responsible for the debts or obligations of the other entities. The TBC is a useful tool to restructure companies with significant liabilities and became known as the “Texas Two Step”.

Johnson & Johnson Consumer, Inc. (“Old Co”) was a wholly owned subsidiary of Johnson & Johnson(“J&J”). Old Co manufactured a variety of consumer products including Johnson Baby Power, made from talc, which is alleged to have caused cancer and subjected Old Co to a number of lawsuits. LTM was formed as in anticipation of more class action cases associated with allegations that Old Co’s products caused cancer. Although there were tens of thousands of lawsuits filed, some resulted in verdicts, dismissals, and settlements. In order to consolidate the litigation and provide some meaningful distribution for claimants, Old Co used the TBC to accomplish a divisional merger.

Old Co merged into Chenago Zero, LLC (“Chenago Zero”). Chenago Zero, through divisional merger, merged in to Chenago One, LLC (“Chenago One”) and Chenago Two, LLC (“Chenago Two”) under the TBC. Chenago One took on the talc liabilities and litigation, received $6 million in cash and ownership of royalty payments from J&J consumer brands worth approximately $367 million. Chenago Two received the productive business assets of Old Co. Chenago One converted into LTL. Chenago Two merged into Curahee Holding Company, Inc. and later changed its name to New

Co. New Co became a wholly owned subsidiary of J&J. The restructuring strategy also included a funding agreement between J&J, New Co, and Chenago Zero. The funding agreement required J&J and New Co to pay cash up to the value of New Co to resolve talc litigation costs and pay operating expenses. It was contemplated that all talc litigation would be transferred to a trust authorized under a chapter 11 plan to benefit talc claimants. There were limited restrictions to funding and no payment obligations. LTL inherited the benefit of the funding agreement under the plan of merger. Thus, the merger plan contemplated LTL filing a chapter 11 petition that would shield New Co and its assets from any liability.

In reversing the bankruptcy court and district court’s denial of the Committee’s motion to dismiss, the 3rd Circuit’s reasoning focused on the fact that LTL was not insolvent on the date it filed its chapter 11 petition. Namely, the class action lawsuits had not fully matured and LTL was not facing crippling judgments from claimants. Although there were numerous lawsuits pending against it, LTL had successfully settled some of them or had others dismissed. At the time of filing, it was premature for LTL to seek out bankruptcy protection at a time when it had access to $6 million in cash, up to $367 million in royalties, and essentially a blank check from New Co and J&J with a value of $61.5 billion to address claims from the talc litigation.

The 3rd Circuit did not directly criticize LTL and its affiliated entities for engaging in a divisional merger, but it signaled that it would look beyond the mere corporate structure of the debtor to evaluate whether the debtor filed its case in good faith. Specifically, it will look at the debtor’s assets, liabilities, and access to capital to address liabilities. At a minimum, it appears that such debtors must show balance sheet insolvency on the petition date to be entitled to chapter 11 bankruptcy protection in the 3rd Circuit.

There have been rumblings in the bankruptcy bar about the implications of In re LTL Management, LLC in other Circuits and the continued viability of the Texas Two Step. On the creditor side of the ledger, In re LTL Management, LLC provides a blueprint for dismissing these types of chapter 11 cases. If companies can no longer separate productive assets from staggering potential tort liabilities with the aid of a funding agreement by either a parent or affiliates, we will see less of the Texas Two Step in these types of pre-bankruptcy transactions. g

Member Benefits Vendor List

TCBA members may take advantage of discounts provided by the following vendors:

AMO Office Supply offers TCBA members the lowest price guaranteed on office supplies, with next-day delivery and free shipping! Call 800.420.6421.

Falcon Document Solutions, provides quick, efficient and reliable process service, document scanning, printing, copying and electronic discovery, litigation displays and trial boards. We are available 24 hours 7 days a week at 817.870.0330 or at www.falcondocs.com. Discounts available to TCBA Membership.

Fort Worth JSB Co., Inc., offers a 10% discount to TCBA members on printed material - business cards, letterhead, envelopes, business forms, brochures, flyers, and more. For a quote, call 817.577.0572.

Fort Worth Zoo discount tickets - $16.00 adult, $12 for child or senior. For tickets, contact tracy@tarrantbar.org or 817.338.4092.

For IT Help: Juris Fabrilis - Cool Tools for Lawyers offers members discounted rates on web-based tools to help you manage your law practice. 817.481.1573 ext. 101.

For Shredding and Document Disposal: Magic Shred is a secure shredding business that shreds your documents on-site. Magic Shred offers a 10% discount to TCBA members. Call 940.783.6580 for details.

Thomson Reuters Exclusive TCBA offer of 15% off new Westlaw subscriptions or upgrades to current subscriptions*, including our latest AI enhanced platform, Westlaw Edge. Please contact your local Account Executive, Ben Galloway, for more information: Ben.Galloway@TR.com. *Restrictions apply, please contact your AE for details. g

Classified Advertising NOTICE

Classified Ads no longer appear in the Bulletin. They can be found on our website at www.tarrantbar.org

Bar Bulletin ▪ March/April 2023

Tarrant County Bar Association

1315 Calhoun Street

Fort Worth, TX 76102-6504

ADDRESS SERVICE REQUESTED

WORTH, TX PERMIT 1807

If any of your contact information is incorrect, please submit the corrected information to the TCBA office at 817.338.4092, fax to 817.335.9238 or email to tcba@tarrantbar.org.