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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.

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

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

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.”

After leaving the bench, Fender continued to serve as a senior judge after leaving the active bench.

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