San Antonio Lawyer, January/February 2025

Official Publication of the San Antonio Bar Association

NEW TEXAS BUSINESS COURT SUPPORTS STATE'S POWERHOUSE ECONOMY Judge Stacy Sharp and Judge Marialyn Barnard

January–February 2025

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contents ON THE COVER 8 The Texas Business Court, Part I: The Texas Business Court: Why Now?

By The Hon. Marialyn Barnard and Andrea Morris

FEATURES 13 Understanding Immigration, Part II: Humanitarian Relief for Immigrants

By Linda A. Brandmiller and Esmeralda Sosa Serratos

19 Hip-Hop Observes Its Golden Anniversary: How a “Niche Movement” Influenced the Law and Changed the World, Part 2 By ileta! A. Sumner

26 A Conversation with Judge Nelson Wolff on Life, Service, and the 95 Power Principles

By Jade Heep

8 Judge Marialyn Barnard and Judge Stacy Sharp Photos by Mewborne Photography

DEPARTMENTS 23 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

28 Fourth Court Update

By Chief Justice Rebeca C. Martinez

January–February 2025 | San Antonio Lawyer® 3

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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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The Texas Business Court, Part I:

The Texas Business Court: Why Now?

By The Hon. Marialyn Barnard and Andrea Morris

T

exas is growing, and it is growing quickly. We have all read the headlines describing Texas as a magnet for Americans looking to relocate, and it is not just individuals who are signing up for an address in the Lone Star State. Major financial firms like Goldman Sachs and JPMorgan Chase have expanded their presence in Texas, while several Silicon Valley companies— including Apple, Tesla, and Hewlett Packard—are either setting up campuses in Texas or are relocating their corporate headquarters to Texas. In addition to these Silicon Valley companies, other businesses— including Chevron, SpaceX, X, and CBRE—are moving from other states to Texas.

With all this growth, it is not surprising that Texas ranks as the eighth largest economy in the world—an economy larger than several nations, including Russia, Canada, and Italy. Texas is positioned to soon become the seventh largest economy in the world, overtaking France.

According to the Governor’s Office, the Texas economy has been expanding faster than the nation’s for the past several quarters in a row.

We are home to over fifty Fortune 500 companies, and many people, including the international community, see Texas as providing a strong business climate for growing and emerging businesses.

In fact, one of the most significant economic developments is the launch of the Texas Stock Exchange (TXSE)—informally known as Y’all Street—later this year. As TXSE Group founder and CEO James Lee told the Wall Street Journal:

Judge Marialyn Barnard and Judge Stacy Sharp Photos by Mewborne Photography

We’re thrilled to bring to fruition the long-held vision for a national stock exchange in Texas. Texas and the other states in the southeast quadrant have become economic powerhouses. Combined with the demand we are seeing from investors and corporations for expanded alternatives to trade and list equities, this is an opportune time to build a major, national stock exchange in Texas.

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This is also an opportune time to build the long-awaited specialized business court system in Texas. As many of you know, on September 1, 2024, pursuant to House Bill 19, the Texas Business Court and the Fifteenth Court of Appeals came into existence and began accepting cases. According to House Bill 19’s sponsor, the bill “is intended to streamline resolutions of business disputes and ensure the court is staffed by qualified and skilled judges, ideally giving businesses confidence in Texas’s legal system and encouraging them to incorporate and headquarter in Texas.”

With Texas growing as an economic powerhouse for businesses, it is about time for such a system to launch. Texas has over 200 specialized courts to hear probate matters, family law issues, juvenile cases, and veterans’ cases, so it only makes sense for Texas to finally have a specialized court to hear complex business disputes.

Some of the basics: the Texas Business Court will be divided into eleven divisions, five of which have already opened in Dallas, Austin, San Antonio, Fort Worth, and Houston. Two judges will be appointed to each of the divisions by the Governor, and each judge will serve a twoyear term. As you may know, Judge Stacy Sharp and I have been appointed to serve the Fourth Division, and we are honored to be sitting in San Antonio, Bexar County, Texas. The Texas Business Court shares limited jurisdiction with state district courts, and its goal is to alleviate the caseloads of the district courts by handling complex commercial disputes that often clog dockets.

Shortly after the Texas Business Court opened, lawyers began filing cases across the divisions. By October 2, 2024, Dykema senior counsel Timothy McCarthy participated in the first hearing, requesting a temporary restraining order in a trade secrets dispute. The hearing was held remotely before the Honorable Judge Sofia Adrogué of the Houston Business Court Division. When The Texas Lawbook asked McCarthy about his experience, he highlighted how easily accessible and helpful the court staff was. I had the pleasure of meeting McCarthy at a speaking engagement, and he spoke highly of the Business Court: “It was one of the best user experiences I have had in my twenty-five years of practice in the United States and around the world.”

“The establishment of the Business Court,” he added, “is part and parcel of the overall story” and is “appreciated all over the world,” not only because Texas has “the eighth largest Gross Domestic Product,” but also because of Texas’s “prominence in global business in all sectors.”

Texas Business Court Judges Stacy Sharp and Marialyn Barnard

With the arrival of the New Year, I am encouraged by McCarthy’s experience with the Texas Business Court. His experience showcases how the Texas Business Court is part of a larger vision, which is for Texas to better serve the growing businesses, population, legal system, and economy of the state as well as the country. As Texas continues to grow, the Texas Business Court will play an instrumental role in the legal landscape and will strengthen Texas’s reputation as a business-friendly environment.

T he Hon. Marialyn Barnard currently serves on the Fourth Division of the Texas Business Court. Previously, she served as a justice on the Fourth Court of Appeals, as a county commissioner for Bexar County Commissioners Court, and as judge of the 73rd Judicial District Court in Bexar County.

Andrea Morris is a staff attorney for Judge Marialyn Barnard. She previously served as Judge Barnard’s staff attorney during her tenure at the Fourth Court of Appeals.

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January–February 2025 | San Antonio Lawyer® 11

Left: 2024 SABA Lifetime Achievement Award Recipient, The Hon. Charlie A. Gonzalez | Top: 2024 SAYLA Award Recipients; Robert Soza, Lucy Adame-Clark and Cassie Garza with SAYLA President Josué Galván | Middle: SABA Officers Steve Chiscano and Donna McElroy with 2023 SABA Lifetime Achievement Award Recipient Sara Dysart | Bottom: SABF Officers Steve Chiscano and Donna McElroy, with 2023 SABF Award Recipients William “Bill” Crow and Eduardo Juarez

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SABA Lifetime Achievement Award Joe Frazier Brown Sr. Award of Excellence Recognizes an attorney who demonstrates the highest level of professionalism, exceptional skills as a counselor and advocate, and such personal attributes as honor, integrity, service and intelligence.

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SABF Outstanding Lawyer in Community Service Carolyn Thurmond Award

SAYLA Outstanding Young Lawyer Award

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Recognizes one young lawyer who has demonstrated professional proficiency, service to the profession and the community and is 36 years or younger as of June 1, 2025, or initially licensed within 60 months prior to June 1, 2025.

Recognizes one attorney who serves as a role model and consistently demonstrates a commitment to mentoring younger lawyers in their legal community.

SAYLA Liberty Bell Award Recognizes one outstanding non-lawyer who has made the most selfless contributions to his or her community to strengthen the effectiveness of the American system of justice by instilling better understanding and appreciation of the law.

Recognizes a lawyer who has demonstrated outstanding service to our community.

For more information , including nomination requirements and past recipients, scan the QR code or visit sabar.org 12 San Antonio Lawyer® | sabar.org

UNDERSTANDING

IMMIGRATION, PART II

Humanitarian Relief for Immigrants

By Linda A. Brandmiller and Esmeralda Sosa Serratos

A

lthough immigration options are in a state of chaos—with promises of unilateral enforcement and mass deportations looming when the next administration takes over—several humanitarian remedies are currently available to the following immigrants who are in the United States: (1) victims of human trafficking (T Visas); (2) victims of crime (U Visas); (3) victims of domestic abuse (Violence Against Women’s Act—VAWA); (4) abused/abandoned and neglected children (Special Immigrant Juvenile Status); (5) TPS (Temporary Protected Status); and (6) those persecuted in their home country and fear return (Asylum).

Victims of Human Trafficking (T Visas) Modern prohibitions of human trafficking in the United States have their roots in the 13th Amendment to the Constitution, which barred slavery and involuntary servitude in 1865. The Victims of Trafficking and Violence Protection Act of 2000 (TVPA) is a federal statute, enacted in 2000 and signed by President Clinton. In addition to its applicability to United States citizens, the TVPA authorizes protections for undocumented immigrants who are victims of severe forms of trafficking and violence.1 Following its initial enactment, the TVPA was renewed in 2003, 2006, 2008 (when it was renamed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008). The law lapsed in 2011, and in

2013, the entirety of the Trafficking Victims Protection Act was attached as an amendment to the Violence Against Women Act (VAWA) and passed.2 As described on the United States Citizenship and Immigration Services (USCIS) website: Human trafficking, also known as trafficking in persons, is a crime in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex.

Traffickers often take advantage of vulnerable individuals, including those lacking lawful immigration status. T [V]isas offer protection to victims and strengthen the ability of law enforcement agencies to detect, investigate and prosecute human trafficking.3 One of the inherent problems with this humanitarian remedy is its requirement that victims of human trafficking report the crime to law enforcement officials. In addition, many human trafficking victims do not selfidentify as victims—often because they are paying back a debt to a smuggler or other individual who “finds” them work, then takes their paycheck or reduces it for room and board, essentially rendering them indentured servants. Sometimes, it is a parent or other family member who has trafficked a relative for sex, labor, or both. Any immigrant who is helping someone else earn money off of him or her is potentially a trafficking victim.

While the annual congressional allocation quota for T Visas is 5,000–10,000, fewer

than 20,000 total T Visa applications were approved between the program’s inception in 2003 and the end of Fiscal Year 2021. Sadly, this statistic is not indicative of how many trafficking victims exist in the United States.

Rather, it is indicative of how difficult it is to identify these victims and help them navigate the complex immigration system.4

Victims of Crime (U Visas) According to the USCIS:

The U nonimmigrant status (U Visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. . . . The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of noncitizens[,] and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.5 The pertinent crime has to have occurred in the United States, and as with T Visas, there are two parts to this humanitarian relief: (1) being a victim of qualifying criminal activity and having suffered substantial physical or mental abuse as a result; and (2) reporting the January–February 2025 | San Antonio Lawyer® 13

In fact, the majority of people who immigrate to the United States are seeking a better life for themselves and their families. Many of them face significant, persistent persecution in their home countries, often at the hands of their own government.

crime to law enforcement and being helpful in the investigation or prosecution of the crime.

The annual limit on the number of U Visas that may be granted to principal petitioners is 10,000, and while processing times can vary widely, it is not unusual for it to take up to a decade to obtain relief in this category.6

hope of obtaining legal status, but can instead leave the relationship and petition on his or her own. In fact, abusers often dangle the “opportunity” of obtaining legal status over the victim, as well as threaten the termination of a filed application, if the immigrant does not comply with their demands.

Victims of Domestic Violence (VAWA)

Abused/ Abandoned and Neglected Children (Special Immigrant Juvenile Status)

According to the USCIS: With the passage of the Violence Against Women Act of 1994 (VAWA) and its subsequent reauthorizations, Congress provided noncitizens who have been abused by their U.S. citizen or lawful permanent resident relative the ability to independently petition for themselves (self-petition) for immigrant classification without the abuser’s knowledge, consent, or participation in the immigration process. This allows victims to seek both safety and independence from their abusers.

Spouses and children of U.S. citizens and lawful permanent residents, and parents of U.S. citizens who are 21 years of age or older, may file a self-petition for immigrant classification with USCIS. A noncitizen filing the self-petition is generally known as a VAWA selfpetitioner. If USCIS approves the selfpetition, VAWA self-petitioners may seek legal permanent residence and obtain a Green Card.7 Although VAWA uses the word “Women” in the title, this humanitarian relief also applies to men, children, and the elderly.

VAWA recognizes and acknowledges that an immigrant suffering in an abusive relationship need not remain with the abuser with the 14 San Antonio Lawyer® | sabar.org

If a child (a person under age 21 in the federal code) is abused/abandoned/neglected (even in his or her home country) and is unable to reunify with at least one parent in Texas, a state court order from a judge presiding over a suit affecting the parent-child relationship (SAPCR) can be used by, or on behalf of, the child to self-petition for legal status.8 Neglect and abandonment are casespecific but can include death, imprisonment, leaving the child, not permitting the child to continue in school, putting the child to work at a young age, and—as Judge Peter Sakai once pointed out—permitting or encouraging a child to travel thousands of miles alone through multiple countries in order to get to the United States, with the expectation that the child will be working and sending back money to the family, thereby using the child for economic gain.

Here again, the biggest challenge is identifying these children before they turn 21.

Once the child turns 21, he or she no longer qualifies for this sort of assistance. Although there is currently a wait list for children to apply for residency, once the first application is approved, the child may apply for a work permit. Because this humanitarian relief is exclusive to children, those who become American citizens through this program can never petition for their parent(s) to obtain legal status.

Temporary Protected Status (TPS) TPS is often a misunderstood form of humanitarian relief, applicable only to people already in the United States. According to USCIS: “The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” Examples include ongoing armed conflict, an environmental disaster such as hurricane or earthquake, an epidemic, or some other kind of extraordinary and temporary condition. Countries currently designated for TPS include Afghanistan (until May 2025), Burma (until November 2025), Cameroon (until June 2025), El Salvador (until March 2025), Ethiopia (until December 2025), Haiti (until February 2026), Honduras (until July 2025), Nepal (until June 2025), Nicaragua (until July 2025), Somalia (until March 2026), South Sudan (until May 2025), Sudan (until April 2025), Syria (until September 2025), Ukraine (until April 2025).

Venezuela (until April or September 2025), and Yemen (until March 2026).

A TPS designation can be made for six, twelve, or eighteen months at a time. While TPS does provide for a work permit during the approved designations, “Temporary Protected Status” is, as the name implies, a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status, and it may not be renewed/redesignated at any time. Once their temporarily protected status ends, TPS beneficiaries must return to whatever immigration status they held prior to receiving TPS, unless they have successfully acquired a new immigration status. TPS beneficiaries who entered the United States without inspection and who are not eligible for other immigration benefits, for example, would return to being undocumented at the end of a TPS designation and become subject to removal. As of March 31, 2024, there were approximately 863,880 people with TPS living in the United States, with an additional 486,418 initial or renewal applications pending at United States Citizenship and Immigration Services (USCIS).9

Asylum

Asylum is one of the most controversial immigration topics. Every day, news outlets broadcast the “border crisis,” often claiming that migrants come to the United States just to commit crimes, smuggle drugs, drain state/ national resources, or work without paying

taxes. These sorts of reports are patently untrue.

In fact, the majority of people who immigrate to the United States are seeking a better life for themselves and their families. Many of them face significant, persistent persecution in their home countries, often at the hands of their own government. After undertaking a dangerous journey to the United States just to escape from the violence or strife in their home countries, they then are faced with the difficulty of seeking asylum here.

Seeking asylum is a legal process recognized and incorporated into American law in the Refugee Act of 1980. Asylum is a form of protection to foreign nationals who meet the definition of “refugee.” The United Nations 1951 Convention and 1967 Protocol define “refugee” as a person who is unable, or unwilling, to return to his or her home country and cannot obtain protection in that country—due to past persecution or a well-founded fear of being persecuted in the future—“on account of race, religion, nationality, membership in a particular social group, or political opinion.” These five enumerated groups are important in understanding asylum claims since, generally, problems such as gang-violence, extortion, inability to find employment, reunifying with family, or wanting a better life are not grounds for seeking asylum.10 Asylum seekers can apply for asylum either at the United States border or inside of the United States. However, during the last administrations, there have been multiple changes to this process. In addition to the “Asylum Ban” in May 2023, the BidenHarris administration issued an executive order in June 2024 that was amended on September 30, 2024, with the stated intent to “strengthen border security” by tightening asylum restrictions even further.11 Under this new order, the legal right to seek asylum will remain suspended until the average number of daily southern border encounters drops below 1,500 for twenty-eight consecutive days, an increase from the previous sevenday requirement. Encounters do not include people arriving at ports of entry. The updated order now includes unaccompanied children in the calculation of daily encounter averages, even though they will remain exempt from the suspension and related measures.12 For decades, people who wanted to seek asylum at the border presented themselves at the port of entry (e.g. bridge), claimed fear of returning to their home countries, and went through the Credible Fear Interview process with an asylum officer. If they passed this process, they were permitted to apply for

asylum. After the adoption of the “Asylum Ban” in May 2023, however, the United States government added a “rule”—not contained in the law—that asylum seekers who crossed through another country prior to arriving at the southern border of the United States were barred from asylum protection, unless they had: (1) previously applied for, and were denied, asylum elsewhere; or (2) made an appointment through the CBP (Customs and Border Protection) One App.

Launched in 2020, the CBP One App was designed to enhance border-processing functions and expedite entry processes for individuals and cargo at ports of entry.

However, CBP One has also become the primary vehicle for asylum seekers at the United States/Mexico border to schedule appointments so that they can be processed for admission at a United States port of entry.13 This process has resulted in a sort of random “lottery system,” forcing

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John Specia 210.734.7092 jspecia@macwlaw.com Phylis Speedlin 210.405.4149 phylis@justicespeedlin.com Lisa Tatum 210.249.2981 ltatum@tatum-law.com James Upton 361.884.0616 jupton@umhlaw.com

immigrants to wait in Mexico in dangerous camps for many months, hoping to get an appointment to enter the United States.

Additionally, cartels have reportedly managed to infiltrate the CBP One App and gain control of the appointments, selling them to immigrants who have the resources. Recently, the San Antonio Express News reported that a partnership among Mexican law enforcement, immigration officials, and bus station employees has resulted in CBP One App users’ falling prey to extortion, harassment, and forced relocation to southern Mexico.14 In addition to the arduous process of seeking asylum, the likelihood of actually winning an asylum claim is uncertain and depends on myriad factors, such as the political situation in the country; the wellfounded fear of persecution based on a protected ground (especially for those cases where the protected ground is a particular social group); the nexus or the reason why the asylum seeker was persecuted in his or her home country; proof of the persecution, including reports, witnesses, or other data/ information; his or her credible, consistent testimony during the asylum interview and hearing, among others factors. Additionally, an asylum applicant’s likelihood of success can be affected by such things as whether he or she: (1) reported the persecution to law enforcement in his or her home country; (2) moved prior to fleeing; (3) obtained a passport shortly before leaving his or her country, or once in the United States; and (4) applied for asylum before the expiration of a year in the United States. Further, circuit law, the trial attorney, and the immigration judge significantly affect an asylum seeker’s ability to win an asylum case. TRAC (Transactional Records Access Clearinghouse) provides a snapshot of judges’ approvals and denials by immigration court. In San Antonio, thirteen immigration judges range in asylum grants from 27.1% – 71.6%.15 The Executive Office of Immigration Review (EOIR), which oversees immigration courts, reports that—as of October 10, 2024—there are over 3.5 million court cases pending. That means that—aside from the difficult processes of arriving in the United States and applying for asylum—waiting for a court hearing and final adjudication of a case often takes years. Over 1.5 million asylum seekers are awaiting a court hearing.16 Simply put, asylum seekers not only face a dangerous journey to come to this country, but they also face a complex, everchanging process of applying for asylum.

The regularly false narrative attached to

asylum seekers ignores the fact that—to even apply for asylum—the immigrant must be in the country, so there is no “illegal” entry.

Every day, people attempting to escape fear, suffering, and persecution in their country of origin try to arrive at the United States border, in search of a better and safer life. While rules and restrictions are a necessary part of border security, attempting to unilaterally ban asylum seekers is against the laws, conventions, treaties, and protocols that have been in effect for decades.

Lastly, in addition to calling for mass deportations, ending Deferred Action for Childhood Arrivals (DACA), and abolishing birth-right citizenship, Project 2025’s 900page “Mandate for Leadership” for the new administration has a clear plan to restrict immigration at ALL levels, including by reducing “chain migration” or applications of family members (ironically, the way that the soon-to-be-again First Lady and her parents achieved legal status in the United States). Project 2025 also calls for further restrictions on T Visas and U Visas, and plans to “significantly reduce eligibility” for both types of visas until they are ultimately

eliminating up to one third of asylum claims.18 The recommendations also include raising the standard for the legally required “credible fear of persecution” by applicants and adding new bars to asylum, along with likely reinstating the “Remain in Mexico” policy, forcing non-Mexican nationals to wait in Mexico prior to being allowed to enter the United States and apply for asylum. Further, Project 2025 would limit work permission to only “certain categories of legal immigrants and non-immigrants,” without stating which ones, and these are only the plans highlighted as humanitarian relief. Considerably more restrictions regarding immigration are in the works for other areas as well.

abolished, stating that “[v]ictimization should not be a basis for an immigration benefit” and that—even before it is removed from the law—U Visa application eligibility should be “significantly” restricted. This will also potentially affect abused/abandoned/ neglected children from qualifying for relief as special immigrant juveniles (“SIJs”). Project 2025 urges Congress to repeal existing TPS designations, with little hope of expanding this category of humanitarian relief or redesignating these countries. The Project 2025 guide also calls for USCIS to “pause” receiving applications for a given immigration type if backlogs become “excessive”— essentially allowing the government to engineer a backlog by understaffing a given form and pausing applications indefinitely.17 With regard to asylum, the Project 2025 plan would “diverge from international law by either eliminating the particular social group protected ground ‘as vague and overbroad’ or creating a new definition that at a minimum states that persecution based on a failure of one’s government to protect a victim from gang and domestic violence will not be sufficient”—thereby potentially

One Final Note

Although much emphasis is being placed on the Trump Administration’s stated focus of targeting “criminal” immigrants for deportation, the belief that it will only be “those-who-deserve-deportation” or “not-me-because-I-am-not-a-criminal” is misunderstood and misplaced. According to the Congressional Research Service, almost half of the nearly 500,000 EOIR case decisions

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Simply put, asylum seekers not only face a dangerous journey to come to this country, but they also face a complex, ever-changing process of applying for asylum. in Fiscal Year 2023 resulted in a removal order (deportation order); and 69% of these were absentia orders, meaning the immigrant may not even know that he or she already has a deportation order against him or her. In the first month of the current fiscal year alone—as of October 2024—immigration judges issued 35,657 deportation orders, with fewer than 1% based on alleged criminal activity.19 The American Immigration Council estimates that over a million immigrants already have “final orders of removal” but remain in the United States, either through official executive discretion or because immigration officials do not know their location. Sadly, these are the same— and likely the first—“criminal aliens” the Trump administration will target because they are easy to find, even without raids, tent cities,

or judicial intervention because they have already had their “day-incourt,” and they either lost their cases or did not appear before the judge.

Therefore, the first round of mass deportations will not likely target the serious criminals—such as rapists and murderers (statistically a very small percentage of immigrants)—but will instead focus on the “crime” of remaining unlawfully in the United States after a court decision. Many law-abiding immigrants are paying taxes with an ITIN number because they do not have a Social Security card. They will be easy to find. Everincreasing surveillance in public places and enhanced identification and tracking technologies will aid in identifying immigrants without legal status. Further, the government has access to an immigrant’s social media accounts—also easy to find. Buckle up because it is going to be a bumpy ride!

Esmeralda Sosa Serratos is an associate attorney at Garcia and Garcia, Attorneys at Law PLLC. She is licensed in Mexico and Texas. Her practice focuses on Immigration Law. L inda Brandmiller has twenty years of experience as an immigration lawyer in San Antonio, Texas, focusing on victim relief and special immigrant juvenile status.

Both are members of the State Bar of Texas’s Laws Relating to Immigration and Nationality Committee.

ENDNOTES See Alison Siskin & Liana Sun Wyler, Trafficking in Persons: US Policy and Issues for Congress (Congressional Research Service May 1, 2014).

2 “Breaking News: Violence Against Women Act & Trafficking Victims Protection Reauthorization Act Passed.” Retrieved on May 23, 2013; archived from the original on December 28, 2013.

3 http://uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status (last visited on November 10, 2024).

4 https://uscis.gov/sites/default/files/document/factsheets/Characteristics_of_T_Nonimmigrant_Status_TVisa_Applicants_FactSheet.pdf (last visited on November 10, 2024).

5 http://uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status (last visited on November 10, 2024).

6 Id. 7 http://uscis.gov/humanitarian/abused-spouses-children-and-parents (last visited on November 10, 2024).

8 http://www.uscis.gov/working-in-US/eb4/SIJ (last visited on November 10, 2024).

9 https://www.americanimmigrationcounsel.org/research/temporary-protected-statusoverview Temporary Protected Status: An Overview | American Immigration Council (last visited on November 10, 2024).

10 U.N. General Assembly (UNGA), Convention Relating to the Status of Refugees, § 1(A)(2), U.N. Treaty Series (Vol. 189), at 137 (July 28, 1951).

11 https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issuedrestrict-asylum-eligibility-those-who (last visited on November 10, 2024).

12 https://www.rescue.org/article/it-legal-cross-us-border-seek-asylum (last visited on November 10, 2024).

13 https://immigrationforum.org/article/cbp-one-fact-sheet-and-resources-directory (last visited on November 10, 2024).

14 https://www.expressnews.com/news/border-mexico/article/cbp-one-cartels-asylumseekers-19932259.php (last visited on November 10, 2024).

15 https://trac.syr.edu/immigration/reports/judgereports (updated 10/19/2023) (last visited on November 10, 2024).

16 trac.syr.edu/immigration/quickfacts/eoir.html (last visited on November 10, 2024).

17 https://immigrationimpact.com/2024/08/23/what-project-2025-says-/about/immigration/ (last visited on November 10, 2024).

18 www.nolo.com (last visited on November 10, 2024).

19 https://crsreports.congress.gov/product/pdf/IN/IN12318/1 (last visited on November 10, 2024).

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Hip-Hop Observes its Golden Anniversary HOW A “NICHE MOVEMENT” INFLUENCED THE LAW AND CHANGED THE WORLD

Part 2: Some Copyright Concerns By ileta! A. Sumner

Part I of this Series discussed the origins and development of Hip-Hop. Part II now discusses some of the copyright concerns that Hip-Hop generated.

Copyright Law As It Is Usually Applied

It would be nearly impossible for the average listener to divine from whence Public Enemy found their sources for the samples they used, due to the invention of technology to convert the original sound and the tiny clips they used in rapid-fire succession. Nonetheless, music made in that manner can never come to pass in this day and age, given the present climate in which copyright law is applied to hip-hop music. Normally, there is a series of necessary steps for deciding if the party claiming an infringement is, indeed, entitled to copyright protection. Upon such a finding, the infringing user(s) of the matter in question can raise affirmative defenses that would confer the right to claim an exception to the otherwise absolute proprietary copyright. However, in the case of hip-hop, the majority of circuit courts have thrown the copyright rules out of the window, deciding that—in this genre—copyright law, as it has been enforced for over a century, simply does not apply.

The De Minimis Rule. Copyright protection is extended to “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device.” While copyrights are not intended to just reward the creator of the original work, but are also intended to encourage public benefits, they do explicitly cover both “musical works, including any accompanying words,” as well as any “sound recordings” of those works. Hence, there are two distinct copyrightable components in digital sampling cases: (1) the sound

recording; and (2) the original musical composition itself. For a plaintiff to prove there has been an infringement of his or her copyright under the Copyright Act of 1976, three essential elements must first be met: (1) ownership of a valid copyright; (2) a copying; and (3) a copying of constituent elements of the work of the original.

However, to prove that there has been a legally significant copyright infringement, a core test—the substantial similarity test, which dates back to the 19th century—must be applied. This similarity must be both quantitative and qualitative. If the public cannot recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content. Thus, there would be no quantitative or qualitative similarity, and the court may dismiss the case as de minimis, which stems from “de minimis non curate lex”—basically, the law does not concern itself with trifles. In other words, trivial copying should not constitute actionable infringement under elementary copyright standards. Historically, the de minimis test has been successfully used by defendants to argue that their copying was not legally significant enough to be actionable. Interestingly, in hip-hop cases, the courts have been unwillingly to apply this traditional concept.

The Affirmative Defense of “Fair Use.” Even if a substantial similarity is proven—and the de minimis rule is inapplicable—standard copyright law allows the defendant to make an affirmative claim of “fair use.” Usually, a court resorts to a four-prong test to determine whether there has been a fair use, considering: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. Under this test, where an unauthorized sampling is substantial and clearly recognizable to the January–February 2025 | San Antonio Lawyer® 19

work almost unidentifiable. The questions then become, how much of the new work was truly dependent upon the former work, and how much compensation, if any, is owed to the prior originator. In Grand Upright Music v. Warner Bros Records, Inc., 780 F. Supp. 182 (S.D. N.Y. 1991), the court considered just how use much of a prior work constitutes an infringement. Significantly, the Grand Upright Music court did not use any of the traditional means of determining if there was, indeed, a valid copyright and a de minimis use; and it did not apply a fair use analysis, either.

In this instance, hip-hop artist Biz Markie had looped three words and a portion of “Alone Again (Naturally)” by Gilbert O’Sullivan into his 1991 release, “I Need a Haircut.” Although he asked permission to use the sample, he was denied. Anyway, Biz went ahead and Copyright Law as Applied in Hip-Hop Cases used the small sample, and O’Sullivan sued. The judge determined As the continued use of previously recorded music to underscore that O’Sullivan held a copyright on the used material, and without new rap recordings escalated, so did the lawsuits by the creators of the applying any de minimis or fair use analyses whatsoever, literally past music. It did not take the courts long not only to voice their disdain declared, “Thou shalt not steal.” The court granted injunctive relief for such practice, but also to deviate from long-established norms and to the plaintiff, forcing Biz to withdraw his album from the market. procedures of recognizing the rights of copyright holders and those While the decision was largely disregarded and criticized, it set the who desired to use their original creations. In the process, hip-hop precedent that one must either get a license for the music he wants to has changed applicable law, in essence obliterating the time-honored use or create his own original music en toto, thereby crimping the style steps that made further use of previous releases permissible—and of hip-hop artists throughout the industry. thus, stifling the creativity of today’s poets—by imposing new, almost Albeit a rational decision—that one should pay for what one uses— insurmountable hindrances. it is not as easy as one may presume. First of all, one must recall that One of the areas inherent in hip-hop music that has become there are, in fact, two parts of obtaining a license: getting a license for problematic is the use of modern technology that can transform samples the use of the recording, as well as getting a license for the underlying of already released songs into infinite variations, making the original song on the recording. In some cases, this involves just one person; but, in many case, it can be two different entities. The rationale is that the originator of the first recording needs to be compensated; but is that what truly happens?

In the case of one of the most sampled bits Gallant Computer Investigative Services, LLC of music ever used, the 1969 release of James David T. Gallant Brown’s “Funky Drummer” (it has been Digital Forensics/Cell Tower Geolocation Mapping sampled in no fewer than 1,855 songs!), Cell Phone Records Analysis for MVAs neither Mr. Brown, nor the actual drummer, Licensed Texas Private Investigator (A15633) Clyde Stubblefield, holds the copyright for Retired Federal Agent (AFOSI) that music. Instead, Mr. Brown’s catalog is Court Certified Expert Witness (Federal/State/Military) owned by a corporation. Thus, if the idea (210) 271-2999 is to compensate the creator for his or her time, effort, and inspiration, how is that Titan Building 2700 NE Loop 410, Ste. 301, San Antonio, TX 78217 accomplished when that artist does not even own the copyright? www.WhatsOnThePhone.com In 2005, the Sixth Circuit added another The Proof is in the Data™ case that made it more difficult for artists to listener, an infringement will be found (as was the case with Vanilla Ice and MC Hammer, discussed in Part I of this series). It is important to note, though, that original copyrights are there to protect the entire body of the recording itself, not merely small pieces of it. Furthermore, a copyright holder cannot control downstream creativity. If that were true, Congress would not have rethought copyright law a century ago to allow “covers” of original musical compositions that made a major portion of the recordings produced in the 20th century possible. An example that has been given is that the Beatles may not have been happy with William Shatner’s rendition of “Lucy in the Sky with Diamonds”; nevertheless, because of the “elbow room” created by Congress, there was little stopping it.

20 San Antonio Lawyer® | sabar.org

ileta! A. Sumner, Esq. is a former President of the Bexar sample pre-recorded music: Bridgeport Music, Inc. v. Dimension Films, County Women’s Bar Association (2002) and the original 410 F.3d 792 (6th Cir. 2005). Basically, when a rap group sampled two General Counsel and creator of the legal department of the seconds of a three-note combination solo guitar riff that lasted four Battered Women’s and Children Shelter. She has been seconds from George Clinton’s “Get Off Your Ass and Jam,” looped and disabled since 2006. She can be reached at (210) 421-2877 extended it to sixteen beats, and added it five times within their record, (cell), litig7rij@aol.com.

“100 Miles and Runnin,’” the court ruled that the copyright holder for a sound recording has the sole and absolute right to any derivative work made therefrom, with no need to perform a de minimis, substantial SELECTED BIBLIOGRAPHY similarity, or fair use examination, and that sampling of those works by others was merely a means to save money. Even though the court Education through Music, “A Brief History of Hip-Hop,” etmonline.org, did make a cursory distinction between the use of the sound recording https://etmonline.org/stories/hiphophistory/#. (not allowed) and the use of the music itself (allowable), the effect George Varga, “Hip-hop at 50: It’s global impact has surpassed that of rock was chilling: sampling of musical recordings post-1972 was strictly ‘n’ roll a generation earlier,” San Diego Union Tribune, August 6, 2023, 6:00 forbidden. This, presumably, is still the interpretation of the majority of a.m. PT, https://www.sandiegouniontribune.com/entertainment/music/ circuit courts to this day. story/2023-08-06/hip-hop-at-50-global-impact-rivals-that-of-rock-n-roll-aThe exception to this line of decisions has come from the Ninth generation-earlier.

Circuit. Madonna was sued for using a 0.23-second “horn hit” from “Hip-hop: A Culture of Vision & Voice,” The Kennedy Center, https://www. the song “Love Break” (1982) in her worldwide hit, “Vogue.” Unlike kennedy-center.org/education/resources-for-educators/classroom-resources/ the courts in Grand Upright and Bridgeport, this time, in VMG Salsoul v. media-and-interactives/media/hip-hop/hip-hop-a-culture-of-vision-andCiccione, 824 F 3d. 871 (9th Cir. 2016), the court did apply traditional voice/ . copyright methods for determining if the use was permitted by applying Jonathan Abrams, “Breakers Grapple with Hip-Hop’s Big Olympic Moment,” the de minimis rule. In affirming the lower court’s decision—and by New York Times, October 10, 2023, https://www.nytimes.com/2023/10/10/ defiantly refusing to follow the logic of Bridgeport—the Ninth Circuit arts/dance/olympics-breaking-dance.html. decided that the sampled section lacked enough originality to qualify for George Varga, “Hip-hop history: A timeline of key events in the music’s early copyright protection; more importantly, even if the sample were eligible decades,” San Diego Union Tribune, August 6, 2023, https://www.sandifor a copyright, the bit used was de minimis. egouniontribune.com/entertainment/music/story/2023-08-06/hip-hop-hisWhile there is a split among the Circuit Courts, with the most tory-a-timeline-of-key-events. recent decision actually following copyright standards, one cannot deny that applying laws developed in the beginning of the last century to an “Rap music is stylistically & lyrically diverse, representing a range of experiart form that is ever-evolving in the 21st century has cast a pall over ences & worldviews that characterize the multiple & changing voices among African American youth,” Timeline of African American Music – Rap/Hipthe recording industry and has halted the creativity at the very soul of Hop, carnegiehall.org, https://timeline.carnegiehall.org/genres/rap-hip-hop. hip-hop unlike any other application of copyright law. Moreover, by refusing to use the rules for fair use of the works of others, the courts Juana Summers, Kat Lansdorf, Patrick Jarenwattanwnon, “Rapper’s Delight: are disregarding the possible benefits that could come from sampling.

How hip-hop got its first record deal,” npr, August 8, 2023, 5:23 p.m. ET, When a hip-hop artist uses a piece of previously recorded music, the sound bite could whet the appetite for art from a bygone era, and this art need not be solely musical in nature—like Richard Martin Lloyd Walters’ (a/k/a Slick Rick) ingenious sample of the theme song from the children’s cartoon “Inspector Gadget” within his bestPROMPT, AFFORDABLE DISPUTE RESOLUTION ™ selling song “The Show” (1985). When done properly, sampling could, in turn, create new avenues of revenue for performers no longer on television, touring, or recording; or merely increase interest in the prior work.

CIVIL & FAMILY MEDIATION Copyright law was created to allow works PARENTING COORDINATION of the past to serve as the seeds of innovation PARENTING FACILITATION for the future, not to choke the means of

MEDIATION SERVICES

invention. The time has come for Congress to adjust the laws of copyright, making it easier and affordable for artists to obtain the requisite licenses, while still adhering to the already established standards of the Copyright Act of 1976. It makes sense to compensate those whose works facilitate these new art forms without ignoring the rigors set in place to make just decisions when claims do arise.

The law should not be able to hinder artistic freedom with the “bang of a gavel.”

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January–February 2025 | San Antonio Lawyer® 21

https://www.npr.org/2023/08/08/1192750303/rappers-delight-how-hiphop-got-its-first-record-deal.

Ira Flatow, Flora Lichtman, Hank Shocklee, Kembrew McLeod, Ph.D., Dean Garfield, “Digital Music Sampling: Creativity or Criminality?” Talk of the Nation – Science Friday, npr, January 28, 2011, https://www.npr. org/2011/01/28/133306353/Digital-Music-Sampling-Creativity-Or-Criminality.

Mike Suppoppola, “Confusion in the Digital Age: Why the de minimis Use Test Should Be Applied to Digital Samples of Copyrighted Sound Recordings,” Texas Intellectual Property Law Journal, 14 Tex Intell. Prop L.S. 93, Spring 2006, https://tiplj.org/wp-content/uploads/Volumes/v14/v14p93.pdf.

Chuck Philips, “Rap Finds a Supporter in Rep. Maxine Waters: Pop music: The congresswoman aligns herself with ‘our children’ and defends their ‘new art form,’ Los Angeles Times, February 15, 1994, 12 AM PT, https://www. latimes.com/archives/la-xpm-1994-02-15-ca-23195-story.html.

Debra Allen, “Michael Jackson broke down racial barriers, “CNN,” https:// www.cnn.com/2009/SHOWBIZ/Music/06/28/michael.jackson.black.community/.

David Mouriguand, Theo Farrant, Jenny Walfsz, Saskia O’Donoghue, Andrea Carlo, Savin Mattozzi, “50 Years of hip-hop: A chronological look at the genre’s essential records,” euro news, August 13, 2023, https://www.euronews. com/culture/2023/08/13/50-years-of-hip-hop-a-chronological-look-at-thegenres-essential-records .

Erik Bodia, “Split Chords: Addressing the Federal Circuit Split in Music Sampling Copyright Infringement Cases,” 7 Pace Intell. Prop. Sports & Ent. L.F. 131 (2017), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=10 61&context=pipself.

Charlize Frazier, “CoverGirls: All the Beautiful Black Women Who Made the Brand Iconic,” HelloBeautiful, September 12, 2017, https://hellobeautiful. com/playlist/black-women-who-posed-for-covergirl/item/4.

Erika Marie, “Who is Slick Rick? Get to Know Hip-Hop’s Greatest Storyteller,” hotnewhiphop.com, May 27, 2023, https://www.hotnewhiphop. com/682696-slick-rick-storyteller-hip-hop.

Jonathon Abrams, “Breakers Grapple with Hip-Hop’s Big Olympic Moment,” New York Times, October 10 2023, https://www.nytimes.com/2023/10/10/ arts/dance/olympics-breaking-dance.html.

Tom Cole, “You Ask, We Answer: ‘Parental Advisory’ Labels – The Criteria and the History,” npr, October 29, 2010, 10:30 a.m. EDT, https://www.npr. org/sections/therecord/2010/10/29/130905176/you-ask-we-answer-parental-advisory---why-when-how.

“Top Gear: The oral history of hip-hop’s love affair with Tommy Hilfiger,” COMPLEX, August 22, 2016, https://www.complex.com/style/a/complex/ tommy-hilfiger-hiphop-oral-history.

Shirley Halperin, Ethan Stanfeld, “RAP Act Introduced in Congress Would Bar the Use of Lyrics as Evidence in Court Proceedings,” VARIETY, July 27, 2022, 4:09 p.m. PT, https://variety.com/2022/music/news/rap-lyrics-crimimal-evidence-congress-bill-legislation-1235327683/.

Followers come in second.

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Federal Court Update

Western District of Texas Court Summaries

By Soledad Valenciano, Melanie Fry*, and Jeffrie Lewis If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210–787–4654) or Melanie Fry (mfry@dykema.com, 210–554–5500) with the style and cause number of the case, and the entry date and docket number of the order.

Immigration; Standing Devins v. Bitter, SA-24-CV-00257-ESC (Chestney, E., October 2, 2024).

The plaintiff sought reversal of the denial of a non-party’s F-1 student visa application and also requested the issuance of a student B-1 business visa for the non-party, claiming the U.S. Department of State’s prior denial of the non-party’s visa applications violated the Religious Freedom Restoration Act of 1993 because the plaintiff is a Christian seeking to sponsor the student’s academic studies in the U.S. The court determined that the plaintiff failed to plead facts that established constitutional or prudential standing. Article III standing requires the satisfaction of three elements: (1) a concrete and particularized injury-in-fact, either actual or imminent, (2) a causal connection between the injury and defendant’s challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable decision. Prudential standing “embodies judicially self-imposed limits on the exercise of federal jurisdiction.” The plaintiff’s interest in assisting an international student is not governed by any statutory or regulatory framework such that there exist any interests personal to the plaintiff that are contemplated or protected in the context of F-1 student visas or B-1 business visas. The plaintiff had not al-

leged a concrete and particularized injury or a legally protected interest redressable by the court nor were the plaintiff’s alleged injuries within the “zone of interest” of the immigration framework at issue to give rise to prudential standing to seek relief in the form of a visa for the student. Nor had the plaintiff articulated a plausible theory as to how his ability to exercise his religion is causally linked to the decision to deny the student’s visa. The doctrine of consular non-reviewability further limited the plaintiff’s claims since a consular officer’s decision to deny a visa is not subject to judicial review. Such decisions are committed to agency discretion by law, and any constitutional-rights exception did not apply under the facts of the case. As long as there is a facially legitimate and bona fide reason for the denial, as existed in this case—namely, a failure to overcome the presumption of immigration intent—the plaintiff’s claims do not fall under the exception.

Rule 12(b)(6); Indisputably Meritless Claims Whitfield v. Navy Fed. Credit Union, SA-24-CV-00082-HJB (Bemporad, H., October 1, 2024).

The plaintiff’s amended complaint alleged that the defendant credit union refused to

*After many, many years of faithful and outstanding service as a co-author of the Federal Court Update, Melanie Fry will be turning the reins over to another Dykema Gossett, PLLC attorney, Sabrina Salazar, effective with the March-April 2025 issue.

The San Antonio Lawyer Editorial Board—and I personally, as Editor in Chief—thank Melanie for her tremendous contribution to the magazine and to SABA. Sara Murray

accept endorsed bills as payment toward his credit card debt and car loan which the plaintiff claimed was “Breach Of Contract for Nonperformance of fiduciary duties.” Because the plaintiff’s claims were based on indisputably meritless legal theories, i.e., a purported obligation to accept non-legal tender, no amendment to his complaint could save the claims.

A court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) “based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” With respect to the former, a complaint may be dismissed “if it lacks an arguable basis in law or fact:” i.e., “if it relies on an indisputably meritless legal theory.”

Temporary Restraining Order; Permanent Injunction Am. Dairy Queen Corp. v. UAM, LLC, SA24-CV-01209-JKP (Pulliam, J., October 25, 2024).

The court granted plaintiff American Dairy Queen Corporation’s (“ADQ”) motion for temporary restraining order and deferredin-part ADQ’s motion for preliminary injunction. ADQ requested restraint of its former/ terminated franchisee who continued to operate a Dairy Queen and use ADQ’s trademarks without authorization. A TRO requires proof of: (1) a substantial likelihood that the movant will prevail on the merits; (2) a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury outweighing the threatened harm to the defendant; and (4) the granting of the TRO will not disserve the public interest. The January–February 2025 | San Antonio Lawyer® 23

Federal Court Update

court concluded that “at this juncture ADQ has shown a substantial likelihood of success on the merits” on its claims under the Lanham Act, 15 U.S.C. § 1114, for trademark infringement as the former/terminated franchisee continued to operate the restaurant in question as a Dairy Queen without a license.

The court found that a franchisee’s continued use of marks after termination establishes irreparable harm given the lost control over the franchisor’s valuable trademarks and quality of the restaurants operating under its name.

Here, the threatened harm to ADQ (i.e., loss of control over its trademarks and a substantial threat to its reputation, goodwill and brand) outweighs the threatened harm to the former/ terminated franchisee (i.e., monetary losses).

The court also found that granting a TRO would not disserve the public interest as the public interest is always served by enforcing laws like the Lanham Act and by enjoining the use of infringing trademarks that may deceive the public. Given food safety and product quality issues raised by ADQ, the court also found it is in the public interest to preserve the status quo and give the parties ample opportunity to develop the record without subjecting the public to potential improper hygiene protocols. The court deferred ruling on the motion for preliminary injunction until after a full evidentiary hearing.

24 San Antonio Lawyer® | sabar.org

Dismissal; Rule 41(a) Kennedy v. Credence Res. Mgmt., SA-23CA-00470-FB (Biery, F., October 3, 2024).

The court granted in part and denied in part a pro-se plaintiff’s motion for voluntary dismissal without prejudice, holding that the motion was granted to the extent the plaintiff sought to voluntarily dismiss his case but denied to the extent the plaintiff sought a dismissal without prejudice. The record was clear that the plaintiff had repeatedly failed to participate in and otherwise prosecute his case. Under Rule 41, a plaintiff at this stage of the case may only voluntarily dismiss his case by court order, on terms the court considers proper. Rule 41 also states that should the case be dismissed instead for want of prosecution, such dismissal operates as an adjudication on the merits unless the court orders otherwise.

Here, instead of responding to the court’s order that he show cause why his case should not be dismissed for want of prosecution, the plaintiff asked to have his claims voluntarily dismissed without prejudice in what the court considered an apparent attempt to keep the option to re-file his suit against defendants at some later date. The Fifth Circuit has affirmed the denial of a motion to voluntarily dismiss without prejudice when the plaintiff waited until a late stage to seek that voluntary dismissal, and the defendants had exerted

significant time and effort up to that point, facts the court found clearly present. Further, dismissal with prejudice against plaintiffs who fail to prosecute their cases is warranted when (1) there is a “clear record of delay or contumacious conduct by the plaintiff,” and (2) the court “has expressly determined that lesser sanctions would not prompt diligent prosecution or . . . the district court employed lesser sanctions that proved to be futile.”

Untimely Filing; Motion to Strike; FRCP 16(b)(4) Malhotra v. State Farm Lloyds, SA-23CV-00780 (Bemporad, H. – July 29, 2024).

In addition to its response to the defendant’s Daubert motion, the plaintiffs filed a motion to strike the Daubert motion as untimely which the defendant had filed (1) seven weeks after the deadline set by the court’s scheduling order, and (2) without a showing of good cause to extend the deadline under Federal Rule of Civil Procedure 16(b)(4).

Without responding to the plaintiffs’ motion to strike, the defendant replied to the plaintiffs’ response to the Daubert motion, in which the defendant attributed its untimely filing to inadvertence—an internal calendaring error—and its failure to seek leave to a lack of awareness of its untimeliness. Rule 16(b)(4) allows deadline modification “only for good cause and with the judge’s consent.”

Nonetheless, despite the defendant’s failure to seek leave before filing its Daubert motion, the court went through the four-prong analysis to determine whether the defendant met Rule 16’s good cause standard, which is met by showing an inability to reasonably meet the deadline despite the diligence of the party seeking the extension. These four factors are (1) the explanation for the untimely filing; (2) the significance of the modification; (3) any potential prejudice resulting from allowing the modification; and (4) whether a continuance would cure any such prejudice.

Nested under the first factor of this analysis, the court’s ruling turned on whether the defendant could “show that it has been diligent in pressing its claims but despite its diligence could not reasonably have met the scheduling deadline.” The defendant’s inadvertence explanation “is tantamount to no explanation at all.” An inadequate explanation for the delay is a sufficient basis for denial of the extension. The court therefore denied the Daubert motion as untimely.

Premises Liability; Unreasonably Dangerous; Open and Obvious Shelton v. PF Westpond, LLC, SA-22CV-00973 (Bemporad, H. – June 13, 2024; adopted by Judge Orlando Garcia July 10, 2024) The plaintiff alleged that she tripped on an uneven portion of sidewalk while walking back to her car after paying rent, causing her to fall and break her wrist. To prevail on her premises liability claim, the plaintiff had to show that (1) the defendant had actual or constructive knowledge of the uneven sidewalk; (2) the uneven sidewalk was unreasonably dangerous; (3) the defendant failed to exercise reasonable care to reduce or eliminate the risk; and (4) the defendant’s failure to use such care proximately caused the plaintiff’s injuries.

The defendant moved for summary judgment, raising three arguments, only one of which the court analyzed, as it was sufficient to overcome the plaintiff’s premises liability claim.

Specifically, the defendant argued that (1) the uneven part of the sidewalk was not unreasonably dangerous and was open and obvious; (2) the defendant lacked actual or constructive knowledge of the uneven sidewalk; and (3) the defendant’s failure to remove the uneven part of the sidewalk did not proximately cause the plaintiff’s broken wrist. Finding the defendant’s first argument persuasive, if true, the court first analyzed whether the condition of the sidewalk rose to the level of “unreasonably dangerous.” Citing to Texas Supreme Court precedent, the court noted that “some particularly innocuous or commonplace hazards are not unreasonably dangerous as a matter of law.” It listed several factors set out by Texas courts as pertinent to the determination of the reasonableness of the danger at issue: “(1) whether the condition was clearly marked; (2) the size of the condition; (3) whether the condition had caused prior injuries or generated prior complaints; (4) whether the condition was unusual or substantially differed from the condition of other objects of the same kind; (5) whether the condition is a naturally occurring phenomenon; (6) whether the invitee had reasonable alternatives to traversing the area where the condition was located; and (7) whether the condition met applicable safety standards.” Finding “the lion’s share” of these factors to weigh in favor of the defendant, the court moved on to the defendant’s “open and obvious” argument. Citing again to the Texas Supreme Court, the court explained that an

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

“open and obvious” condition, cannot, as a matter of law, be “unreasonably dangerous.”

Whether a condition is open and obvious is a question of law answered using an objective standard: what a reasonably prudent person would have known in similar circumstances.

Finding no evidence that the uneven part of the sidewalk was concealed or obscured in any way, as well as visibility of the “lip” from the plaintiff’s vantage point before she fell, the court concluded that the defendant was entitled to summary judgment on the plaintiff’s premises liability claim.

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

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

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210.979.7300 January–February 2025 | San Antonio Lawyer® 25

A Conversation with Judge Nelson Wolff on Life, Service, and the 95 Power Principles

By Jade Heep

95 Power Principles: Strategies for Effective Leadership in Local Government Author: Nelson W. Wolff Publisher: Elm Grove Publishing Publication Date: January 9, 2024 Paperback and Hardback: 298 pages Price: Hardback $34.27; Paperback $19.99

J

dge Nelson Wolff, former San Antonio mayor, longest-serving u County Judge in the Bexar County’s history, and tireless public servant, boasts an impressive legacy. So, when I was asked to read and review his latest book, 95 Power Principles: Strategies for Effective Leadership in Local Government and was offered the chance to meet Judge Wolff in person, I jumped at the opportunity.

We met on a sunny morning at a local Starbucks, where Judge Wolff was impossible to miss, sporting his signature tan fedora. True to his Power Principle Number 71: Dress with Sartorial Splendor, he exuded confidence and charm. With a warm smile and a hot coffee in hand, he greeted me, and after some light pleasantries, we dove right into discussing his book.

One thing many might not know about Judge Wolff is that he’s an avid poker player. In fact, some of his Power Principles are inspired by, or illustrated with, poker analogies. He shared a story about a hand where a fellow player embodied Power Principle Number 12: Act First, Create Tension, Get Things Done to win a significant pot. As the wife of an enthusiastic poker player, I couldn’t resist throwing in a few poker terms (with my admittedly limited knowledge), and Judge Wolff was gracious enough to act impressed. He even had me record him telling a “bad beat” poker story to share with my husband. That moment broke the ice, leading to what I can only describe as one of the most fascinating conversations of my life.

Though I am no stranger to book reviews (you can check them out on my Facebook page, Gettin’ Lit), 95 Power Principles is not my usual genre.

I typically lean toward fiction. And I’m not talking about literary fiction, 26 San Antonio Lawyer® | sabar.org

I’m talking sci-fi, fantasy, children spontaneously combusting, fiction.

In fact, my last in-depth review was Grady Hendrix’s The Southern Book Club’s Guide to Slaying Vampires. So, I initially feared the material, which I would classify as a fusion of self-help and autobiography, might be too dense for someone like me, especially as a novice to local government and politics. But I couldn’t have been more wrong. Judge Wolff’s book was an engaging, quick read, that kept my attention throughout.

Judge Wolff masterfully presents what could have been dry subject matter with humor, personal anecdotes, and a conversational tone.

His stories about collaborating with San Antonio leaders like Henry Cisneros, Mayor Ron Nirenberg, and Julian Castro added depth and relatability. He doesn’t shy away from addressing serious political issues, offering sharp critiques of past colleagues, and reflecting honestly on his own successes and failures.

For example, he shared the struggle to let go of his decades-long effort to establish a passenger rail service in San Antonio, tied to Power Principle Number 53: Persistence is a Close Cousin to Stubbornness.

Though the project never materialized, his candor about the challenges and lessons learned was both refreshing and relatable. Judge Wolff’s ability to balance humility, humor, and wisdom sets this book apart from other political memoirs.

While 95 Power Principles serves as a practical guide for those pursuing leadership in local government, it’s also a treasure trove of advice for leaders in any field. Judge Wolff structured the book into nine stages of a political career, from Pathways to Power (setting the stage for a career in government) to Set a Time to Leave (exiting with impact).

However, many of the principles are broadly applicable.

One of my personal favorites is Power Principle Number 36: Inspire and Take Care of Your People. In it, Judge Wolff emphasizes the importance of creating a work environment that energizes and empowers employees: “You can proclaim, set policy, and initiate projects, but unless you have an inspired, competent workforce to implement them, not much will happen.”

Another standout was Power Principle Number 79: Say What You Have to Say and Get Out of the Way. I read this book a week before one of the biggest speeches of my career, and when I tell you I could not have snapped a photo of this section faster, I am not exaggerating.* Judge Wolff’s advice to “speak with clear words and passion” resonated deeply. When I mentioned this to him during our conversation, he chuckled and reiterated a nugget of wisdom from former Chamber of Commerce President Joe Krier: “No one has ever complained about a speech being too short.”

I thanked Judge Wolff again for unknowingly helping me craft my speech to be direct, concise, and infused with “a little umph” in light of his warning that “long winded boring speeches lead to nap time for your audience.”

Like me, I think that readers will find that these principles are as practical as they are profound and will find themselves returning to them time and again.

Judge Wolff’s character and values, which shine through on every page, make this book truly compelling. His emphasis on emotional intelligence over IQ, his love and admiration for his wife Tracy, and his commitment to transparency and decency in leadership make 95 Power Principles more than a leadership guide—it’s a reflection of a life well-lived in service to others.

I am happy to report that Judge Wolff is just as kind-hearted and genuine in person as his reputation suggests. His deep love for his wife, family, and those around him was evident throughout our conversation. Even when I attempted to focus on Judge Wolff’s accomplishments, he shifted the conversation back to Tracy and what a phenomenal resource she was to him during his career, as he outlined in Power Principle Number 8: Two for The Price of One which focused on how Tracy’s strength only enhanced, not diminished, his.

At one point, our discussion shifted to the current political climate. What is often a bleak and disheartening topic felt unexpectedly uplifting in Judge Wolff’s hands. He spoke with remarkable ease and sincerity, expressing his steadfast belief that, at their core, most people are good—despite how grim things may appear. His hope that the ability to collaborate and work together can someday

be restored was both inspiring and refreshing.

It was equally clear that Judge Wolff holds an enduring love and profound respect for San Antonio. His eyes lit up and a broad smile spread across his face as he talked about the city and some of the initiatives he and his wife, Tracy, have championed—like the digital library, the Tobin Center, and Civic Park.

These projects are clearly among his greatest sources of pride. Judge Wolff’s unwavering faith in the community he has so faithfully served, as well as his excitement for San Antonio’s ever-growing potential, are truly contagious.

In the final chapters, Judge Wolff reflects on life after politics, including his transition after passing the torch to Judge Peter Sakai.

He underscores the importance of “writing to have the last say” and continuing to contribute in meaningful ways. Today, Judge Wolff spends his time mentoring students at UTSA and St. Mary’s University, relaxing with his wife, and continuing to serve from behind the scenes. As a prolific author, he hinted at his next writing project, which he described as his biggest challenge yet. Though I can’t reveal the specifics, I couldn’t be more excited to see what he has in store.

95 Power Principles is a must-read for anyone in leadership, whether or not they aspire to a career in government. It’s a blueprint for navigating challenges, inspiring others, and leaving a lasting impact. Judge Wolff’s humor, humility, and wisdom make this book not just informative but genuinely enjoyable. I can confidently say that reading this book—and having the privilege of discussing it with Judge Wolff—was an experience I’ll never forget.

Jade Heep is a 2018 cum laude graduate of St. Mary’s School of Law and a partner at Epinoza & Brock PLLC. She is an experienced litigator, who currently practices civil and commercial litigation, primarily focusing on employment law, construction and contractual disputes, and personal injury and wrongful death cases. Jade has tried several cases to final verdict/ award in both trials and arbitrations, and she has briefed and argued numerous complex legal issues throughout the course of her career.

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*Editor’s Note: Jade was named the 2024 Outstanding Young Lawyer by the Bexar County Women’s Bar Foundation.

January–February 2025 | San Antonio Lawyer® 27

Fourth Court Update

A Historic Transition on the Fourth Court of Appeals

By Chief Justice Rebeca C. Martinez

S

tarting my fifth year as Chief Justice, I have had the distinct pleasure of serving alongside fourteen fellow justices since my election to the court back in 2020. They include several remarkable women and a gentleman, each of whom contributed in multiple ways to both the bench and bar. Many still do. As the Fourth Court family moves forward with new additions to the court, it does so with gratitude for the service of the justices to whom we bid a fond farewell: Justice Luz Elena Chapa, Justice Beth Watkins, and Justice Liza Rodriguez. Their contributions will continue to resonate in the court’s work for years to come, and their influence remains an enduring part of the court’s legacy.

We also extend a warm welcome to the five justices elected to a full six-year term. All five justices were sworn in at a joint investiture held on New Years Day, January 1, 2025. Elected on November 5, 2024, the newest members of the court are Justice Velia Meza, Justice Adrian Spears, Justice Todd McCray, and Justice Lori Massey Brissette, each of whom brings a wealth of experience, legal acumen, and dedication to the judicial system. They join Justice Lori Valenzuela, who has served on the court since her appointment in January 2021 to my former seat, following my election to Chief Justice in 2020.

Justice Lori Massey Brissette got to work on July 8, 2024, following the retirement of former Justice Patricia Alvarez.

She looks forward to “a big year ahead of [her] with [her] son’s wedding and a second grandbaby on the way.” She’s a new downtown San Antonio resident and enjoys having downsized, after completing the Camino de Santiago (400 miles across Portugal) and realizing that she was “happiest when [she] just had what was on [her] back.”

A graduate of the University of Texas at Austin and South Texas College of Law, Justice Brissette began her legal career with the second-highest score on the Texas Bar Exam and served for one year as a Briefing Attorney 28 San Antonio Lawyer® | sabar.org

for the Supreme Court of Texas. After ten years as a litigator and board-certified appellate practitioner, she was appointed—and then twice re-elected—as presiding judge of the 288th Civil District Court in Bexar County.

Returning to practice, she served as a senior executive at USAA and CEO of a top-five U.S. investment brokerage firm. She co-led the Child Abuse & Neglect Court and Family Drug Court and helped create coalitions among churches and philanthropies to benefit jointly from the generosity of time, talent, and treasure of volunteers in the community.

Recognized for her multiple contributions to the community and her commitment to creating a culture of respect and collegiality with her peers, the court welcomes her legal expertise and passion for service both in and out of the courthouse.

Justice Velia Meza, formerly Judge of the 226th District Court of Bexar County, grew up in El Paso, Texas. She went on to graduate with an Economics degree from Columbia University in New York and a law degree from St. Mary’s University School of Law. For sixteen years, she practiced in more than thirty counties across Texas, representing citizens accused of a crime, in both state and federal court. She brings to the court her vast trial experience in criminal, civil, and family litigation, along with criminal appellate and administrative law matters. She was elected and re-elected to two terms as presiding judge of the 226th District Court and is a staunch advocate for mentoring lawyers and law students. She is a regular speaker and author at continuing legal education seminars, and proudly serves as Adjunct Professor at St. Mary’s University School of Law and coach for the National Trial Team. She is a former board member of the Texas Center for the Judiciary and active in various bar and affinity groups. Justice Meza has been married for twenty years. They have three boys together and are members of Life Church in San Antonio.

Justice Adrian Spears is a third generation Texan, raised in a family of lawyers and judges who fostered a deep respect and passion for the law and an appreciation for public service. He is a graduate of Texas Tech University and St. Mary’s School of Law. While in private practice, he represented governmental entities involved in complex litigation matters in federal and state courts across the State of Texas, from trial through appeal. He also served as a municipal court judge, prosecutor, and assistant city attorney across several cities, including Boerne, Hondo, Forney, Alpine, and Euless, TX. In his own law practice since 2012, he continued his litigation practice, representing individuals and business and governmental entities involved in complex litigation. Recognized as one of San Antonio’s Top Attorneys in civil litigation by his peers, he is also a frequent presenter at a variety of continuing legal education programs. He is respected for his thoughtful approach to the law and commitment to ensuring that all have access to fair and impartial justice. Justice Spears is married to his wife of over twenty years. They have three daughters and are members of Summit Church.

Justice Todd McCray joins the court after a distinguished thirty-year career as a lead prosecutor in Bexar and Grayson Counties, and as a defense attorney, with over one thousand criminal cases and over one hundred jury trials to his credit.

He is Board Certified in Criminal Law and practices in state, federal, and appellate courts.

He is a graduate of the University of Texas at Austin with a degree in Finance and earned his law degree from St. Mary’s University School of Law. As a fourth generation Texan, Justice McCray is a proud Eagle Scout, fifth generation member of the Church of Christ, and a thirty-year resident of San Antonio.

Growing up from humble beginnings, he maintains strong family ties and leads with the heart of a servant. With a strong work ethic and commitment to the rule of law, Justice McCray brings a plethora of professional skills and a passion for service that will contribute to the court’s success. He, along with his colleagues, is well-positioned to bring a fresh perspective to the appellate bench and to handle the complex legal issues that arise in the Fourth Court of Appeals.

Justice Lori Valenzuela was previously the presiding judge of the 437th Criminal District Court before her appointment to the court in January 2021. In 2022, she was elected for the remaining unexpired term, and together with the four new justices, was just elected to a full six-year term. She is a graduate of St. Mary’s University School of Law and the University of Texas at Austin, adjunct professor at UTSA,

and past chair of the Texas Center for the Judiciary. She is married, and she and her husband are proud parents of three children.

The 2024 Election resulted in making history at the Fourth Court as—for the first time since 1981—the court welcomes five new justices elected for full six-year terms, which will expire at the end 2030.

In 1981, along with the other sister courts of appeal, the Fourth Court received criminal jurisdiction, and the legislature added four new seats (Places 4, 5, 6 and 7) to the threemember court. It also changed the court’s name from “Court of Civil Appeals for the Fourth Supreme Judicial District” to “Fourth Court of Appeals.” While the number of seats increased from three to seven, the new seats were not staggered for election purposes, so every six years, five seats are on the same ballot for a term of six years.

I believe these new justices will, together, positively contribute to what any appellate court needs for success and to earn the public’s trust—a cohort of experienced, thoughtful,

and commitment individuals with strong, professional backgrounds; varying experiences and perspectives; and a shared ambition in service to a greater cause. I look forward to their leadership as we navigate the Fourth Court of Appeals through the challenges of a rapidly evolving legal landscape, while upholding the high standards of fairness, integrity, humility, and work ethic that Texans have come to expect from their judiciary.

Chief Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013, and as Chief Justice since January 2021. Chief Justice Martinez previously served for U.S. Magistrate Judge Eduardo E. de Ases for the Western District of Texas, for Justice Federico Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over twenty years.

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January–February 2025 | San Antonio Lawyer® 29

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| 31 bobbybarreralaw@gmail.com (210) 227-7372 www.bobbybarrera.com January–February 2025 San Antonio Lawyer®