San Antonio Lawyer, July/August 2022

Official Publication of the San Antonio Bar Association

T he Adventures of

Phil Hardberger

July–August 2022

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contents ON THE COVER 6 The Cotton-Picking, Plane-Flying, Boat-Sailing, Mountain-Climbing, Trial-Lawyering, Case-Judging, City-Mayoring, TreeHugging Adventures of Phil Hardberger

By Steve A. Peirce

FEATURES 10 A Sit-Down Interview with Phil Hardberger

By Barry Beer

23 Envision a Community Where Everyone Has Equal Access to Justice

By Sarah Dingivan and Sara Dysart

26 Inaugural Justice Luncheon

By Sara Dysart

6 Phil Hardberger Phil Hardberger at the Phil Hardberger Park Nature Play Area On the cover: Phil Hardberger at the Phil Hardberger Park savanna, a renewed field of 19th century South Texas grasses.

Photography by Mewborne Photography

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The Cotton-Picking, Plane-Flying, Boat-Sailing, Mountain-Climbing, Trial-Lawyering, Case-Judging, City-Mayoring, Tree-Hugging Adventures of Phil Hardberger

By Steve A. Peirce

“Live as if you were to die tomorrow.

Learn as if you were to live forever.”

—M. Gandhi

6 San Antonio Lawyer® | sabar.org

P

hil Hardberger pulls into Phil Hardberger Park in his Jaguar and parks in a non-space. I suggest that maybe the park could use more parking, but Phil scoffs, since parking spaces require cutting down trees, which is pretty much against Phil’s religion. We are picked up in a golf cart to go on a tour. Phil plays us music from Terry Allen’s Lubbock (On Everything) album— songs he understands.

Along the trail, he gives the hikers a smile and a wave. We don’t get far before he’s stopped by people who want to tell him how much they love the park. No one calls him Mr. Mayor, just “Phil,” and he likes it fine that way. One couple tells him jokes. Another person shows him a bag of dog poop someone didn’t put in the can. We run into a personal trainer who recognizes Phil, whereupon Phil recognizes the trainer and informs him, to his great surprise, that his picture is in the park’s coffee table book. Selfies ensue. Classify these as good times.

Dreams from the Cotton Fields

Phil welcomes visitors to the Native Plant Wildscape Demonstration Garden at Phil Hardberger Park Cover and article photography by Mewborne Photography .

The Texas High Plains cotton country is a treeless landscape; so flat, it is said if you stand on a tuna can, you can see for 250 miles. It is a place where you just might be remembered only for what you did on the high school football field, with the rest of your life doomed to drudgery. Phil’s dad Homer Hardberger had been a football star at Lubbock High. He became the manager of a cotton gin weighing house in Morton, Texas, fifty-six miles west of Lubbock, where he and his wife Bess, a ladies’ ready-to-wear clerk, also lived in an adjacent room. In 1934, after more than twenty-four hours of Bess’s labor in the sweltering heat, their son Phil was born in that weighing house.

Near the weighing house was the gin, a hazardous place for a toddler. In the gin, machinery with rotating steel teeth pulls out the burrs, weeds, and seeds, which are burned in a pit. In the winter, after the season, the pit would form a thin cool crust at the top, hiding hot coals underneath. At the age of four, little Phil wandered onto the crust and broke through to the coals, severely burning his feet and hands, which required a year of burn treatments in Lubbock.

The family later moved to O’Donnell, Texas, a town of about 1,000 people forty-five miles south of Lubbock, where Homer became a cotton farmer. In the fall, schools would close for two weeks for cotton-picking. Mexican workers from San Antonio would arrive for the picking season, and young Phil would pick alongside them in the fields, dragging the heavy sacks, getting blisters, and listening to songs in Spanish, with Phil noticing the crucifix-wearing girls and wondering what San Antonio was like.

In this part of the state, it was not unusual for folks to get around in small single-engine planes, like Phil’s Uncle Pleas did, but Phil’s dad wouldn’t get near a plane. “My dad was a great armchair traveler.

He would study maps and dream of what it would be like to go places. But he never went anywhere. One day, he bought fishing gear and promised we would go on a fishing trip, but the fishing trip never happened, and the gear went unused,” Phil recalls. “I dreamed of flying planes like Uncle Pleas, and at night, I listened to the Guy Lombardo radio broadcasts live from the Roosevelt Hotel in New Orleans and wanted to go there.”

Just before high school, Phil got pneumonia from cotton-ginning dust exposure and went to live for a year with his Aunt Suci in Ozona.

But when he returned to O’Donnell and started high school, he played all sports with more enthusiasm than skill, was class president four years, and was a lead actor in the school plays. During his senior year, scar tissue from his burn accident years before was causing his right hand to July–August 2022 | San Antonio Lawyer® 7

draw into a claw. So Phil’s mother took him to the UT Medical School in Galveston for hand surgery, where they stayed in a small cabin near the ocean. “In Galveston, I saw the ocean for the first time and thought it was the most romantic thing and imagined that you could just get on a boat and go just about anywhere in the world that way,” says Phil.

The College Newsman

Phil wanted to attend West Point, mainly because it was free, and the family had limited means. But he failed the physical test due to the damage to his hands and was unable to come up with a single professional reference that was required for his admission application.

So he enrolled at Baylor University, pleasing his Baptist family, and hitched a ride to Waco in the fall of 1951, arriving at the dorm knowing no one. Being a country boy, he struggled with grades at the beginning, unable to compete with the students from the city schools.

Phil learned from this: “We come from different environments. It breaks my heart to see a student’s dreams dashed when a little societal help could turn that dream into reality. It is unthinking and cruel not to have affirmative action.”

In his sophomore year, he got a job as a copy boy at the Waco News Tribune, and he learned to read the coded tape of news stories that came in from the wire services, an education in itself. He worked from 4 a.m. till noon, walking by a Jaguar dealership every morning and promising himself that he would own a Jaguar someday. By his senior year, he took a higher paying position as Editor-in-Chief of the Baylor daily newspaper, the Lariat. At the age of twenty, he married his first wife, Sherry, and they had a daughter, Kim.

The Triple-Headed Monster

While at Baylor, Phil saw a Jimmy Stewart movie called Strategic Air Command, about the pilots who flew the new B-47 bomber jets, and decided that he would join the Air Force and learn to fly. After graduation in 1955, he went through basic training at Lackland Air Force Base in San Antonio, then to flight school in North Carolina, then to San Angelo for more training. He was given his pilot’s wings at a ceremony in San Angelo. “The wings ceremony was the only thing I ever did that my dad showed up for. Everything else was just kid stuff to him, but the wings ceremony, that was something to him,” Phil recalls.

Phil disliked his overbearing flight instructor so much that he got into the losing end of a fistfight with him. Years later, while in San Antonio, Phil looked up his records at Randolph Air Force Base, to find that this instructor had written that Phil was an “outstanding student” and showed “great leadership.”

“The B-47 was the most sophisticated aircraft in the U.S. at the time, a bomber that was even faster than the fighter jets. Its sole purpose was to drop nuclear bombs on Russia,” says Phil. B-47s were part of the Strategic Air Command, headed by the cigar-chomping hawkish General Curtis LeMay, likely the model for General Hawkes in the movie Strategic Air Command and General Jack D. Ripper in Dr. Strangelove. Phil was accepted into the Strategic Air Command, flew the B-47s, and was one of the few who was certified as pilot, navigator, and bombardier, a title known as “Triple-Headed Monster.”

Several B-47s were required to be in the air at all times. “We would get a phone call in the middle of the night to get on board and head for an undisclosed far-off destination to practice-bomb a city, or to practicefight against the fighter jets, and we were graded for this,” Phil recalls.

The training missions lasted for eighteen hours. But since the B-47s did not carry eighteen hours’ worth of fuel, they had to be fueled in midair by a tanker prop plane inserting a fuel probe into the flying B-47, a highly dangerous maneuver. The B-47s were a Cold War weapon that 8 San Antonio Lawyer® | sabar.org

never saw combat. “If we ever did have to fly a real bombing mission, we figured we would probably never come back, and we lived with the knowledge that our job was to kill millions of people, which we tried not to think about,” says Phil. During its lifetime, ten percent of the B-47s were lost to crashes. Its worst years were ‘57-58 (the years Phil was flying them), with 49 crashes and 122 fatalities. The movie Strategic Air Command depicted the strain that flying a B-47 can put on a marriage, and Phil’s marriage to Sherry ended at the end of his Air Force career.

The Big Cities, the Peace Corps, and Beyond

In 1959, Phil was accepted into the Columbia University School of Journalism in New York City, after having been previously rejected.

Even then, the counselor told him that he would have a difficult time academically. While at Columbia, Phil lived in the International House.

“About 75% of the residents were foreign students, many of them from India, and we all ate together in the dining hall and exchanged stories,” Phil recalls.

He became a Gandhi scholar, and years later, Gandhi’s grandson would dine with the Hardbergers in San Antonio. He also studied the writings and life of Antoine de Saint-Exupéry, the French pilot born into aristocracy who authored the best-selling novel Wind, Sand and Stars and the children’s classic The Little Prince, and whose life ended when the too-old pilot’s plane disappeared on a World War II reconnaissance mission. Saint-Exupéry became a personal hero of sorts, not only because of his adventures and writing, but also because he was true to the idea of noblesse oblige. And to the surprise of his Columbia counselor, Phil graduated in the top 20% of his class.

Upon graduation from Columbia in 1960, at a job interview, he was shown a room full of journalists pecking away at typewriters all day putting wire stories into Associated Press style and decided that this was not for him. So, he went to work for a few months in Mexico City working for an English-language business magazine. Inauguration Day 1961 found him living at the YMCA in Washington, D.C., with less than $100 to his name and freezing in the cold weather a few yards away from President Kennedy, where he heard those famous words: “Ask not what your country can do for you—ask what you can do for your country.” Phil recalls, “That speech went straight to my heart.” He had come to D.C. to volunteer for JFK’s newly formed Peace Corps, but he was a little too early, and they told him to come back in six months.

So, he took a job at Marathon Oil as the “lowest man in the office” and applied for law school at Georgetown, where he was accepted.

About that time, the Peace Corps resurfaced and hired Phil to work in its public relations department. He was later promoted to Executive Secretary of the Peace Corps, working directly with Sargent Shriver, the first Director of the Peace Corps, who became a mentor to Phil. “Every day with Sarge was a wonderful day; he was open, inspiring, energetic, and fun,” Phil recalls. During his stint with the Peace Corps, Phil traveled to eleven countries, enduring oppressive heat, monsoons, and dysentery. It was a life-enhancing experience. “In the Peace Corps, the volunteers live and work with the host-country people at their level. It changed all of our lives for the better. The more Peace Corps volunteers you have, the less soldiers you will need,” says Phil. And by the way, Phil was attending law school this whole time, graduating in 1965.

Upon law school graduation, Phil resigned from the Peace Corps and went on a year-long European adventure, first to London, then Paris. In Paris, he was dropping off a visiting friend at the airport when he heard his name called. It was another friend who had served in the Peace Corps, who informed Phil that he was working for MGM on a John Frankenheimer film called Grand Prix. The movie (which won

three Oscars) told the story of Formula One racing, and was filmed on location in Paris and Monte Carlo, with actual Grand Prix race footage edited in. Well, what do you know but MGM hired Phil as a “utility man” for the movie. “As a utility man, my job was to procure things for the movie. The MGM folks would stuff my pockets with cash, and I would buy or rent whatever they needed. There’s a scene in the movie where a Formula One driver rides a motorcycle into a nightclub. I bought the motorcycle for the film and rented the nightclub. It was pretty heady stuff, staying in nice hotels and eating at fancy restaurants with movie stars and race car drivers,” Phil recalls. Although severely tempted, he declined a further career with MGM and returned to the U.S. to work again for Sargent Shriver.

With the Johnson Administration came the War on Poverty, and a new Office of Economic Opportunity was formed to lead the fight. Shriver was named the head of the agency, and he hired Phil as his Executive Assistant. “Our job was to educate the poor, give them a voice, and help them develop leaders; I was proud to have a role,” says Phil. While at the OEO, Phil interviewed a job applicant named Linda Morgan, who didn’t get the job, but did get an offer for a date—the awkward beginning of a romance that endures today, some fifty-four years later.

see how these families lived, have coffee and pie with them, look at their memorabilia, and I came to understand their loss,” Phil says.

As the cases grew, the digs moved from the Granada Motel to the nearby Granada Hotel (with an “H”) where he rented its barbershop for his office, likely the only law office with a barber pole outside the door.

And he tried a lot of cases. During the Burnett years and all those early trials, he kept meticulous trial notes and research on evidentiary points and put them in a notebook. A colleague was so impressed with the

Who the hell are you?

The year 1967 arrived and Phil decided it was time to go home to Texas and try to practice law. He interviewed with several of the big city firms, who deemed him too old (33) and unmalleable to be a first-year associate. But he received a tip from one of the interviewers that he would fit right in with a trial lawyer in Odessa named Warren Burnett.

Phil wasn’t too thrilled about going to Odessa, but he paid Burnett a visit and got hired.

“The work week with Warren usually started on Saturday mornings at his office bar with a few drinks. I would be handed a file for a trial for Monday morning. I would then call the clients to introduce myself, where they would say, ‘My lawyer is Warren Burnett and who the hell are you?’ and I would calm them down and arrange a Sunday visit to prepare for Monday morning’s trial,” says Phil. “Warren’s rule was no settlements: you were to try every case, and even if you lost, you won, because you got trial experience.” There was a perk to working for Burnett: he had a plane, and Phil was allowed to fly it whenever Burnett wasn’t using it. After about a year working with Burnett, Phil and Linda got married and she moved to Odessa. They would have a daughter named Amy.

Phil and his wife, Linda.

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The Phone Booth and Barbershop Law OffIces of Phil Hardberger

The Warren Burnett apprenticeship lasted another couple of years, and Phil and Linda took his plane to visit several Texas cities to decide where to settle. San Antonio won. In 1970, they moved into Room 9 at the Granada Motel near the courthouse, and Phil opened up a solo practice that consisted of the phone booth outside of their room. He bought a Jaguar that he couldn’t afford and went to visit the judges to tell them who he was and that he was looking for clients. “One judge told me that I would flat starve to death,” says Phil. But others knew of Burnett’s reputation and knew that Phil could try a case.

Phil then approached lawyers in town and offered to take their worst “dog” cases off their hands, cover the expenses, and split any fees. Predictably, he acquired a lot of cases, dogs though they may be.

He visited with clients at their homes to hide that he operated out of a phone booth, and they were impressed with the Jaguar. Many of these were personal injury or death cases. “With these home visits, I got to

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A Sit-Down Interview with Phil Hardberger

By Barry Beer Phil Hardberger’s experience in both the judicial and executive branches of government gives him a unique perspective on our democracy. When San Antonio Lawyer decided to do an article profiling the life of Phil Hardberger, I thought it important to also include an opinion piece. In the present social and political environment, it would be a shame not to inquire about Phil Hardberger’s thoughts on the state of our democracy. Below are some of his thoughts on electoral integrity, unifying our country, and guns. The opinions below are in his own words.

Electoral Integrity

“The ballot box is the beating heart of democracy. If you kill the ballot box, you kill democracy. There is an attack on the ballot box today that manifests itself in several states, including Texas, where bills are being passed that suppress voting and diminish the importance of the ballot box.”

“Once you get the people to the ballot box, there is the question of the sanctity of their ballots. There is a process to question whether election results are accurate or not, and that can be tested through our election law. Once the challenge has gone through the usual cycle of the law, that should be the end of the story. Attempts to again and again and again attack the vote count are not patriotic. When multiple courts rule against you, you are no longer trying to benefit democracy: you’re trying to destroy it.”

“Worldwide, we see—often in small countries with no history of democratic procedures— voting problems. The loser always claims he was cheated. Then, depending on the mood of that country, the country goes into civil war, or the loser enforces the falsehood by imprisoning people who had the temerity to count the votes correctly. In the end, there’s confusion and frequently bloodshed.”

“We learn about sore losers from grade school on. The usual cry is they were cheated in one fashion or another.

We have to build a defense against that kind of attitude by educating people about the importance of our system of government and our democracy so that the public recognizes the false cry of the defeated and disregards it.

Some losers cannot admit that more people simply voted for their opponent than voted for them. There was no fraud, no theft. They just got beat.”

Unifying our Country Education: “Classes in history, civics, and ethics should be taught every year, like math progression. It’s pretty hard to overdo it. History of actual events shows how we’ve achieved unity in our government. It was not always easy. But we did.

Consensus created the Constitution and the legal system.

We need to learn our history and do likewise.”

10 San Antonio Lawyer® | sabar.org

notebook that she suggested Phil get it published. He did, and it became Texas Courtroom Evidence, selling over 20,000 copies, the number one treatise on Texas evidence. “It was not unusual for me, the judge, and opposing counsel to all have that book in the courtroom, and sometimes opposing counsel would cite it to make a point against me,” says Phil.

Texas Courtroom Evidence was followed by another treatise authored by Phil, the Texas Workers’ Compensation Trial Manual.

Phil’s Favorite Cases

One of Phil’s favorite cases was one that he lost at the courthouse, but ultimately won in the court of public opinion.

Phil recalls: A development proposing housing for over 100,000 people was being planned over the Edwards Aquifer. I had handled some minor environmental cases before, and I got a call from the National Sierra Club to represent it in a lawsuit to stop the development because of pollution concerns. I was a solo practitioner, and opposing me were not only the developers, but the U.S. Department of Housing and Urban Development, the State of Texas, and the City of San Antonio, who had all approved the project. I sought a permanent injunction to stop the project, and the trial became a

battle of experts. Every time my expert pointed out a contamination risk, their experts would describe additional abatement measures to avoid that risk.

The trial was covered in the papers, the courtroom was packed with observers, and the public was getting educated about protecting the aquifer, something that was not well-known at the time. The judge denied my injunction but ordered the developers to implement all the abatement measures their experts had described, and to provide periodic progress reports to the court. The developers didn’t want to do that, so they suspended the project and appealed. The Fifth Circuit ultimately reversed the judge’s order, but by then the public was against the project, and the developers lost interest in pursuing it. When you see a sign saying: “Entering Edwards Aquifer Recharge Zone,” it originated with that case.

Another favorite case was his criminal defense of Angel “Noe” Gonzalez of La Raza Unida, in 1976. Phil recalls, “La Raza was viewed by many as a militant Chicano political organization that scared a lot of Anglos and some Hispanics, too. Texas Attorney General John Hill decided to try to break the back of La Raza. He targeted Noe, the softspoken intellectual head of La Raza.”

Phil explains: Noe had served as the Crystal City ISD superintendent of schools, and the AG had accused him of hiring and using school employees to further the goals of La Raza, a misappropriation of state funds that amounted to nine felony charges that would put Noe away for the rest of his life. I had one associate, Don Walheim, who worked on the case with me. We were convinced of Noe’s innocence, and that he was being prosecuted simply because of his La Raza affiliation. I arranged to meet with John Hill in Austin to convince him that the case was unjust and was met in a room surrounded by Hill and several state attorneys and was informed that the AG was going to put all the La Raza leaders in jail.

So the case went to a jury trial in Brownsville after the AG won a venue change motion. The judge gave us a fair trial, but not a friendly one, and law enforcement packed the courtroom audience. I brought a giant roll of butcher paper into the courtroom and covered the walls with it, much to the displeasure of the judge. During the course of the testimony, I stuck on that butcher paper every phone message slip, every receipt, and every other shred of paper showing the employees’ work for the schools, and by the end of the trial, the walls were covered. The jury returned a not-guilty verdict, and Noe and our team cried along with the jury, while law enforcement quietly exited. The AG never went after another La Raza member.

Then there was Robinson v. Santa Rosa Hospital. Jimmy Robinson was a drug addict in for treatment at Santa Rosa Hospital. One night, he was confronted by an orderly for being out of his room and on the women’s side, which was against the rules. He tried to kick the orderly in the groin. The orderly grabbed Robinson’s foot and flipped him, where he hit his head on the hard floor and was knocked unconscious. He was left there unconscious for a couple of hours, then thrown into the bed, still unconscious. The morning shift arrived and found him still unconscious, having received no treatment. He had an extradural hematoma, which required drilling into his skull to release the blood accumulation that was damaging his brain. He survived as a paraplegic.

Phil recalls: I represented Jimmy Robinson, who was an unsympathetic plaintiff

in a suit against a beloved Catholic hospital with a Catholic judge before a jury that included several folks who were born at that hospital. Many of the nurses were nuns, and it turned out that some of these nuns had altered the hospital records. So, a lot of the case hinged on whether the nuns were lying. The courtroom audience was filled with nuns praying under their breath with rosaries during the trial. I got the judge to order them to stop.

It took Jimmy a full five minutes to crawl out of his wheelchair and into the witness box. My first question to Jimmy was, “How are you doing, Jimmy?” His answer, in slurred speech, was completely unrehearsed. He said, “I’ve never been better. I have a job and I’m off drugs.” He never complained about his injuries. The jury returned a verdict that exceeded what I had pled for, which drew an objection from defense counsel. But the judge granted my oral motion to amend my pleading, and I quickly did a handwritten amended pleading and filed it. And Jimmy stayed clean, kept his job, and got married.

The Jimmy Robinson case is a master class in not overplaying your hand.

The Granada Hotel barbershop law office eventually made way for Phil’s successful partnerships beginning in 1972 with Frank Herrera, Jim Branton, and Fidel Rodriguez. “We handled plaintiff cases involving discrimination against women stewardesses by the airlines, and discrimination against women coaches by the school districts,” Phil explains, and “we represented rape victims suing venues that failed to provide adequate security. We represented families of those injured or killed (many of them children) driving dangerous three-wheeler all-terrain vehicles.”

The Spirit of San Antonio and El Piloto

Saint-Exupéry said: “I fly because it releases the mind from the tyranny of petty things.” With the success of the law practice, Phil and Frank Herrera together bought a used single-engine Bellanca Viking airplane, made of wood and fabric. They would often take the plane out and fly to Mexico, one time in the middle of a deposition that was also going south.

Phil had studied the flights of Charles Lindbergh, and 1977 would mark the fiftieth anniversary of Lindbergh’s famous flight from New York to Paris. So, Phil decided he would reproduce that flight in the plane, painting “Spirit of San Antonio” on its side.

As Phil remembers: I needed extra fuel tanks, so I took the plane to Florida to have it outfitted with three more tanks. There was only room enough in the plane for me to crawl on my belly through the door and over the gas tank in an upside-down position to get in. With the extra gas tanks and the inability to exit quickly, the plane was like a flying bomb, so I took an axe aboard in case I needed to break my way out. I also bought a long-range radio with a long antenna on a spool. I took a pair of scissors and cut a hole in the bottom of the plane so that the antenna could unwind from the spool outside the plane for reception. My daughter Amy and her class packed peanut butter and jelly sandwiches for me, because that’s what Lindbergh ate.

But before the flight, Phil found that the new fuel tanks were leaking, so he patched them with fiberglass putty and duct tape, delaying his takeoff by five and one-half hours. Because of FAA regulations, Phil was not allowed to fly straight through, so he made fuel stops in Newfoundland, Greenland, Iceland, and Ireland. Climbing out of Newfoundland, there was ice in the clouds up to 9,000 feet, resulting in no visibility and ice on the wings. “Ice on the wings changes the shape of the wings, which can cause the plane to lose control and go down; even commercial aircraft can crash due to ice on the wings,” says Phil. “So I July–August 2022 | San Antonio Lawyer® 11

“Teach the facts. Work for your candidate. Abide by the vote.”

“Understanding our history is extremely important. It becomes a part of our personal and national personality.”

“Russia is a perfect example of a country that has never benefitted from the democratic experience. It adopted a Constitution that is generally similar to our own. But there is no history, education, or understanding of democracy. Until quite recently, Russia was run by oligarchs or landowners.

The majority of people were serfs or professional soldiers like the Cossacks. Democracy was not part of their heritage.

They traded the Tzars for the Communists, then traded the Communists for a military plutocracy. Russia never really educated its people about democracy and the Constitution and what it stands for. Russia shows what happens when you claim you have a democracy but you don’t really have a democracy. Russia rules by terror: imprisoning people, poisoning opponents, sending them to Siberia, and so forth.

A large portion of the Russian people would like something better than what they have, but they’re afraid to move forward, and they also have very little education. Could that happen in the United States? Yes. It’s happening some now, because we’re not giving respect to the ballot box.

That respect has kept us from fighting amongst ourselves after each election. Plus, there’s the judicial process to certify results when results are challenged.”

“Ukraine is a good example of a country that has achieved a significant amount of unity to be able to withstand an onslaught from another country four times bigger than they are. Ukraine holds its own because of its people’s common purpose: defending their country. They are willing to die for their country. Their unity is their strength, even against a stronger, larger enemy.”

“Civics classes examine how our government functions to codify and enforce laws when faced with challenges.

Ethical and civility classes teach children basic morality and principles of right and wrong, along with compassion and empathy for those less fortunate.”

“Education is the beginning of restoring faith in the electoral process because it shows how we came to be and how it works. We were the first true republic of the world, and we’ve remained powerful because we trust each other and have common values.”

“Education and universal service would go a long way towards making a better America. There are universal moral precepts of right and wrong that children do not know because they’re not being taught. We have drifted away from what is right and what is wrong as the influence of organized religion has declined. But we have replaced those precepts of right and wrong with selfishness as a personal and national policy. That is certainly the wrong way to go. Ethical living provides a better life in that it gives us more understanding and empathy. ‘Do unto others as you would have them do unto you’ is a pretty good start.

Ethics helps us be better citizens.”

“History also shows that civility is important. There were many disagreements over the forming of our country.

But respect and civility got us over those.”

12 San Antonio Lawyer® | sabar.org

climbed over the clouds to get out of the moisture and into the sunlight to melt off the ice. Looking through an ice-covered windshield in the sun is just like looking through a kaleidoscope.” And when he tried to use his long-range radio, the spool and antenna flew out the hole in the bottom of the plane, cutting him off from long-distance communications.

The last leg of the flight was Ireland to Le Bourget field in Paris. Phil was met with a cascaron head-crack and an arrival kiss by Linda, who had sensibly arrived on a commercial flight. The flight was covered by newspapers all over the U.S. and parts of Europe, and the arrival kiss was captured by a newspaper photographer. All told, the flight began in San Antonio on May 14 with the Paris arrival on May 21, 1977, fifty years to the day of Lindbergh’s arrival. In 2013, he received the National Order of Merit with the title of chevalier (knight) from the French Republic for his 1977 Lindbergh flight.

In 1981, Phil flew a different single-engine plane from San Antonio to Madrid (also solo), recreating in reverse the 1731 route of the Spanish Canary Islenos to La Villita in San Antonio. As part of the event, he was to deliver a vase of dirt from La Villita to Juan Carlos de Borbon, the then-King of Spain. Well, there was no dirt to be had from the pavedover La Villita, so the dirt was taken from the Hardbergers’ yard.

Linda flew to Madrid by commercial airline, and the two agreed to take a couple of days sightseeing before seeing the King. On the second day, they were accosted at their hotel by agents of the King, who informed them that the King was waiting to see them. That evening, they set out in a cab for the King’s Zarzuela Palace, but the driver took them to the Zarzuela Palace theater. Though the driver was fearful of going to the real palace, they convinced him that it was okay. “When we got to the palace, we were greeted by an aide-de-camp who offered apologies that the King could not see us because he broke his hands that day attempting to jump over a tennis net,” Phil recalls. “So, we had drinks and toured the palace, and we gave him the vase with the dirt, and he gave us an antique book on Madrid and the King’s Medal.”

From Madrid, Phil and Linda took off in Phil’s plane for Barcelona.

Phil recounts: In the middle of the flight, I heard a loud “bang!” I didn’t know what it was at first, but I concluded it must be the alternator because the plane was still flying fine, but the alternator needle was below normal and dropping. This meant I was losing electricity. Without electricity, the plane will fly, but the landing gear won’t go down. So, I turned off all the instruments, including the radio, to conserve electricity. Then we ran into solid cloud cover underneath near the mountainous coast. The battery was almost gone, so we were unable to communicate. Not wanting to hit a mountain in the clouds, I circled back over the sea and began descending to get below the clouds, still not knowing which direction the airport was in. Luckily, I saw a PanAm jet and followed it to the airport, landing right behind it with no advance communication with the airport.

We were immediately surrounded by police and taken to the airport commandant. The commandant began filling out forms and yelling at me in Spanish, and Linda, who speaks fluent Spanish, informed me, “He says you are going to jail.” About that time, the commandant saw the newspaper on his desk with the story about me delivering la tierra to the King. He then tossed the forms in the trash, and said, “Bienvenidos, El Piloto.”

The harrowing solo experiences from the transatlantic flights weren’t enough to discourage Phil. In the mid-1980s, he flew a single-engine plane from San Antonio to Brazil. He continued to fly into the early

Street sign at Haven for Hope, news clipping of the Lindbergh flight arrival kiss, the Regata de Amigos trophy, the B-47 pilot, Chief Justice Hardberger, cartoon Phil hugging a tree, and Phil’s single-engine plane.

2000s, logging a lifetime of over 8,000 hours in the air, all the while with his mind “released from the tyranny of petty things.” In 2007, Phil received the Master Pilot Award from the Federal Aviation Administration for fifty years of safe flying with no accidents or violations. And he also holds a federal flying license in hot-air balloons and soaring aircraft.

From the Seas to the Summits

The mid-1980s through the 1990s also brought more adventures.

Phil bought a sailboat at Canyon Lake, with no idea how to sail. But planes and sailboats are both set in motion by the creation of a vacuum, and there are similarities in navigation methods. After a short lesson, Phil got the hang of it. He spent a few years sailing around the lake, which is nice, but kind of lame when you are used to being Phil Hardberger. So, he got an ocean-going sailboat, named it Aimless, after his daughter Amy and the aimless nature of sailing, and began serious sailing.

In 1988, he answered an ad in a magazine seeking “ordinary seaman” to work on the crew of a sailboat being delivered from Florida to Portugal, a trip that lasted thirty-five days (no, he didn’t get paid; he paid them). In Aimless, he also explored all the Texas coast and traversed the major rivers from the coast.

In 1996, he captained a team of seven sailors (including attorney Barry Snell) on Aimless, and they won first place in the Regata de Amigos, an 800-mile race from Galveston to Veracruz, Mexico. “The race runs day and night; you never stop,” Phil remembers. “So half the crew is resting while the other half runs the sailboat. When you sail, the boat tilts on its side for less water friction and maximum speed, and if you fall overboard, your chances of survival are slim because it takes too long to turn the boat around.” At Phil’s office, he shows me the Aztec warrior trophy deemed too gaudy to keep at the house, and the team’s photo in Veracruz, posing with a beautiful Dos Equis model. Interesting men, to be sure.

In the meantime, there were mountains to climb. “I read in the Texas Bar Journal about a San Antonio lawyer, Ted Lee, who climbed mountains as a hobby,” says Phil. “So I contacted Ted, who informed me that he was going to climb Kilimanjaro, and he invited me to come with his group. Now Kilimanjaro isn’t exactly a mountain for beginners.

It sits in Tanzania near the equator. It is hot at its base and freezing cold at its 20,000-foot summit, where the oxygen level gets dangerously low,” Phil explains. “We trained several months to get in shape for the climb, running the steps with weighted backpacks at the Alamo Heights football field every morning. This was 1990. I was fifty-six and in the best shape of my life. It was a common thing to see people throwing up on the Kilimanjaro trail. The most athletic person in our group started getting confused at about 17,000 feet from lack of oxygen and had to go back down to avoid possible brain damage. It took seven days to make it to the summit, and two days to get back down.”

The Kilimanjaro trip was followed by the climbing of Mount Rainer in 1991 and Mount Popocatépetl in 1992, and a 120-mile hike across the Swiss Alps in 1992, then knee replacement surgeries in 2011 and 2016.

July–August 2022 | San Antonio Lawyer® 13

“Compassion for others is part of the American experience. Children need to learn that others’ opinions are important. Tearing America down does not make us stronger. It makes us weaker.”

Mandatory Service

“Service to our country should be mandatory. This service can be military or, alternatively, through service organizations—for example, the Peace Corps, Doctors Without Borders, Habitat for Humanity, and serving rural communities or inner cities.”

“Mandatory service gives you faith in your country and earns you a piece of the action. You’ve invested yourself in a better America through the use of your time. You become a participant and not simply a critical observer. You can help make the United States a more perfect union. Nothing forges people together more than working for a common purpose. These uniting elements create a civility and inclination to listen to other people’s ideas because we’re all on the same team. When you are mountain climbing, four or more of you will typically be roped together. You help each other, and you depend on each other. That’s what the United States should be. We’re in this together. We need to help each other. It is the intelligent thing to do. To the degree we are not what we should be—then make it better.

You, as well as Thomas Jefferson or Benjamin Franklin, have a duty. Fulfill it!”

“With education, we realize how valuable it is to resolve our differences by the ballot box. You don’t have to have a revolution; you just have to wait another four years. As Governor Ann Richards said after being defeated by George W. Bush, “This is not the end of the world. It is only the end of the election.” That’s why we’ve only had one revolution: over slavery. How did we get to having a war based on something that nearly everyone agreed was wrong?

Because we lost sight of what is right and what is wrong.

And we wouldn’t listen to each other. Thus the war came.”

“We lost the reverence for our country. We had a great Civil War, as a result of which a million Americans died. That disrespect almost ended the United States and set us back 100 years. We haven’t yet fully recovered. This disrespect still exists today. We have to be careful. There is strength in unity—but the opposite is true also. Disunion is a disaster for each of us. We need to bring back our feeling of reverence for this country and our system of government. We need to respect each other. If we do not, the consequences are too horrible to contemplate.”

Chief Justice Hardberger

In April 1994, Phil was appointed Justice on the Fourth Court of Appeals by Governor Ann Richards, and in January 1997, he was elected Chief Justice of that Court, where he served until January 2003, authoring over 300 opinions in the process. “I viewed educating the public as part of my job, so I tried to write my opinions without a lot of legalese, so that the average newspaper-reader could understand them,” Phil says.

Of note was his opinion on Loserth v. State, which reads like a true crime novel. Brenda Epperson lived on the third floor of an apartment in Universal City. Epperson had a neighbor named Lewis Devlin, who lived in an adjacent apartment building, about eighty-seven feet away from Epperson. On May 17, 1992, at 3:40 a.m., Devlin heard a loud scream, then a crashing noise. He saw a figure jump from Epperson’s third-floor balcony, a drop of twenty-six feet.

Devlin called the police, who arrived at 3:51 a.m., to find Epperson’s lifeless and bloody body in the apartment. She had been stabbed twelve times. After several police interviews, and even after being put under hypnosis, Devlin’s description of the suspect was only that he was tall and thin and wearing dark clothes. Two and a half months after the murder, police showed Devlin a single color photograph of Ralf Loserth, a tall and thin Army reservist who had formerly dated Epperson. At that point, Devlin identified Loserth as the man who made the long balcony jump, and never wavered from that position.

Loserth was indicted for the murder. Loserth had never before been in trouble with the law. He cooperated with the police, driving from Indiana to turn himself in, and providing them with interviews, fingerprints, blood and saliva samples, and other evidence. But his alibi didn’t check out, he downplayed his relationship with Epperson, and was viewed as insensitive and flippant.

The evidenced showed that, less than an hour and a half after the murder, Loserth reported for reserve training exercises at Fort Sam Houston, clean and dressed. The training exercises involved scaling fences, and Loserth placed in the middle of the pack with no signs of someone who might have been injured jumping from three stories earlier that morning. The only trial evidence placing Loserth at the scene of the crime was Devlin’s in-court identification, which occurred more than two years after the crime. Loserth was found guilty.

“Russia is a powerful country with a huge army—but I worry far more about disunion of our country than being overcome by Russia.”

“United we cannot be beaten, but a divided America is weak and can be defeated. We have a choice—nothing is foreordained. We will make our future. We raise our arms to fight each other, or we raise them to defeat any nation that wishes us ill. Our choice is our destiny.”

A white-tail deer at Phil Harberger Park catches Phil's eye.

14 San Antonio Lawyer® | sabar.org

After one appeal to the Fourth Court, then to the Court of Criminal Appeals, the case was remanded back to the Fourth Court, where Justice Hardberger delivered a 1998 opinion with a lengthy analysis of the facts and the law. The conviction was reversed and remanded for a new trial. Devlin’s in-court identification of Loserth was tainted by an impermissibly suggestive pretrial identification: the showing of a lone photograph of Loserth to Devlin, who had previously been unable to give any better description than “tall and thin.” There was no further trial.

As if the evidence and workers’ compensation books weren’t enough, as Chief Justice, Hardberger boldly took on the Texas Supreme Court in his law review article Juries Under Siege, 30 St. Mary’s L.J. 1 (1998). The article describes the push to elect conservative activist judges in the wake the 1987 CBS 60 Minutes broadcast Justice for Sale? (critical of the plaintiffs’ lawyers influence on the Texas Supreme Court). With 120 pages including 933 footnotes, it contains a detailed survey and criticism of the pro-business, anti-jury decisions of the Tom Phillips/Nathan Hecht Court. The article states that the Court has “ignored, trivialized, or written around jury verdicts,” and that the Court’s decisions demonstrate that the “jury verdict does not mean much.” The article continues this critique by emphasizing that “the erosion of the jury’s significance undercuts a major tenet of democracy—that the community of the parties in litigation should determine the justice of the dispute.” It concludes that the Court “has taken great measures to limit the power of juries in a myriad of cases.” Phil notes, “I heard that there would be a rebuttal article, but it never happened.” The article won the 1999 Law Review Article of the Year from the Texas Bar Foundation.

The Making of a Mayor

In 2003, Phil retired from the Fourth Court of Appeals and set out with Linda in the latest incarnation of Aimless (this time, a 42-foot trawler) to cruise a route known as the Great Circle, from Mexico to Canada to the Great Lakes to Chicago, down seven rivers to the Gulf of Mexico, about 12,000 miles.

With Aimless at the Great Lakes, Phil received a fateful phone call from Cliff Morton, a close friend and Baylor classmate who became a San Antonio businessman and City Council member. “They put together a group who wanted me to run for mayor of San Antonio,” Phil recalls. The idea did not sit well with Linda, and the offer was turned down. More phone calls followed, which were met with rejections from the Hardberger side.

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

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brittanymweil@gmail.com

July–August 2022 | San Antonio Lawyer® 15

guns

“Our elected officials, led by Governor Abbott, seem to be having great difficulties in knowing what to do, in curbing killings by guns. They are unable to find any solution. Perhaps, the following simple formula, will be of assistance: More guns = more murders More automatic weapons = more mass murders.

If they read this formula ten times a day, they may find an answer to their dilemma. One last thought on the efficacy of prayers without meaningful action: ‘My words fly up, my thoughts remain below.

Words without thoughts never to Heaven go.’

Hamlet, Act III, Scene 3, Lines 97-98”

Conclusion

“I learned when I was a pilot in the Air Force that, sooner or later, you will get your airplane in a dangerous position, such as a spin or a stall. The one thing you must do is SOMETHING. If you do nothing, the end is certain. An effort must be made, and the effort itself usually will lead to success.”

Barry H. Beer is senior partner at Law Offices Beer & King, P.C., a primarily personal injury firm. He is a former long-time adjunct professor at St. Mary’s Law School.

Word got out about recruitment efforts, and Phil even wrote a letter to the newspaper that he “would rather count the clouds than count votes.” Or something to that effect. “As soon as I saw those words in print, I knew I had made a mistake,” says Phil. “I talked to a wise friend, Bernard Rapoport, who told me that, as mayor of a major city, I could do more good for more people than just about anybody other than the President, and I decided to run.” So, the Hardbergers left Aimless at the Great Lakes with the idea that they would finish the trip later (they did, after the mayorship ended) and headed back to San Antonio.

The mayoral race culminated in a runoff election between 70-yearold Phil Hardberger and Julian Castro, who was roughly half his age.

Phil recalls, “We had sixty-eight debates during the race. Maybe they thought I was too old to handle the pace, but I never missed a debate, and the exposure helped me.” Phil won a close election, and his first time to ever sit through a city council meeting was in the mayor’s chair.

“The Spurs had just won a championship, and there was a celebration at the Alamodome,” Phil says. “I decided that, as mayor, I should go down there and make a speech. I was warned that I would be booed by folks who didn’t want me as mayor, and sure enough, I was booed and had to cut my speech short.” It’s not a good start when you can get booed at a Spurs championship party.

A lot of elected officials focus on issues of money: create jobs, lower taxes, cut spending. But the Hardberger mayorship was different.

Whether intended at the outset or not, it can be characterized by compassion and beauty. Compassion was needed early in the Hardberger mayorship. In the last week of August 2005, Hurricane Katrina hit 16 San Antonio Lawyer® | sabar.org

Louisiana and Mississippi, leaving thousands of evacuees in its wake. “I was about to go to bed when I was told that a CNN reporter wanted to interview me. So, I got dressed and went to the interview. I was asked if San Antonio would take Katrina evacuees. I said, ‘Yes,’” Phil recalls.

“These people are tired and hungry and need shelter and we will take care of them. They asked me how we were going to pay for it, and I said we would figure that out later.”

Phil continues: That interview spread quickly, and I immediately started getting offers of help from all over, including the military and the business community. We took in about 35,000 evacuees, which was a lot more than most other large cities. We had citizens all over town donating food at the local HEB stores. I asked which HEB was getting the most donations, and it was at SW Military and Zarzamora. I went down there and saw long lines of folks in beat-up, old cars waiting to donate. These people were taking food off their own tables, that they couldn’t afford, and giving it to the Katrina victims. I knew then that I was going to do all right as mayor of this city.

Compassion again was the focus of Haven for Hope, which was founded by Phil and businessman Bill Greehey. “Haven for Hope is a transformational facility that houses about 1,000 formerly homeless people. They get training, commit to a year of full-time employment, and when they come out, they have either a degree or a work skill card,” Phil explains. “We have an 82% success rate and have had over 7,000 graduates.

Of all my accomplishments as mayor, I am proudest of Haven for Hope,” Phil says, showing me his souvenir Hardberger Way street sign, which is the street that runs through the middle of the Haven for Hope campus.

“It is the inherent desire of people to seek beauty,” Phil continues.

“We seek it in our choice of spouses, cars, houses, surroundings, and in every phase of life. We want to live in beautiful places.” So he set about early to beautify the city, with the idea that the beautification would pay for itself and then some. The first project was to close off four streets surrounding the Bexar County Courthouse and San Fernando Cathedral and create a public pedestrian area that would be called the Main Plaza, between the courthouse and the cathedral. This was met with a storm of criticism from those who complained that it would increase traffic and cost too much. But the project was ultimately done, closing two streets rather than four. “We tore down a wall to allow access to the San Antonio River, removed hazards, fixed flood-prone areas, repaired the old fountain, and created a safe gathering area for the cathedral congregants,” says Phil. “Then a lot of events started happening there, and the Main Plaza became known as the ‘People’s Plaza.’”

Phil’s office wall is covered by framed political cartoons of him during his run for mayor and mayorship. One of his favorite cartoons is a drawing of the plans for Main Plaza that looks curiously like a caricature of Phil’s face. And speaking of art, as mayor, Phil was the founder of the Luminaria, an annual free arts festival that draws tens of thousands of folks. “I got the idea from a visit to Toronto, which had a similar arts festival, and I wanted to show people how much talent we have in San Antonio in art, music, poetry, and literature,” says Phil.

An obscure May 1975 story from the newspaper reports on the “Canoe Pilgrimage” with lawyer Phil Hardberger and a group from the San Antonio Conservation Society taking canoes down the San Antonio River from Brackenridge Park to Phil’s downtown law office, a trip that required eight portages, with Phil arriving with his shoes and suit soaked with water. About thirty years later, Mayor Hardberger began pressing the issue of improving the banks of the river from its source to the south edge of the county, about thirteen miles. “With one small exception

Today we still haven’t heard the last of Phil Hardberger. He’s in his office almost every day, working with the Hardberger Park Conservancy, advocating for better enforcement of the tree ordinance, and serving on the board of the Great Springs Project, with the goal to build a 110-mile trail linking all the major springs between Austin and San Antonio. during Hemisfair’s development, there had been no improvements on the riverbanks since the Riverwalk’s inception in 1940,” Phil tells me. “I wanted to do the whole thirteen miles, but you have to start somewhere, so we improved the riverbanks from north downtown to the Pearl.”

Of course, there were complaints about the cost. The area, a quiet, paved walking trail lined with native plants and with a view of public art, waterfowl, turtles, and fish, became the Museum Reach, and its cost has paid for itself many times over. As if this could not have been scripted better, the Museum Reach was opened on Phil’s last day as mayor, with him riding a barge before a cheering crowd of over 100,000. Four years earlier, he had been booed into silence at the Alamodome.

He left office after his term limit expired with an astounding 86% approval rating.

Phil’s Tree, a 400-year-old live oak at Phil Hardberger Park.

The Tree, the Park, and Other Things

We now return where we started this story, at Phil Hardberger Park. It had been a dairy farm owned by a childless couple, Max and Minnie Voelcker, who left their estate in a trust for the benefit of medical research. While mayor, Phil received a phone call from attorney Banks Smith, a trustee for the Voelcker trust, inquiring if the city might be interested in buying the farm for $50 million. It was perfect; about 315 acres of land inside Loop 1604. “I immediately went to Sheryl Sculley, whom I had hired as the City Manager, and asked if we had the money to buy it. The deal closed in six weeks, record time. It was a win-win deal; the city got a park and medical research got the money,” says Phil. The cornerstone of the park is known as “Phil’s Tree,” a 400-year-old live oak. In front of it is a picture of Phil, giving

Tax Planning & Preparation Estate & Retirement Planning Tax Authority Representation Divorce & Support Issues

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July–August 2022 | San Antonio Lawyer® 17

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If you are new to San Antonio, we invite you to join the most collegial bar association in Texas!

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Official Publication of the San Antonio Bar Association

Judge Ron Rangel

Service ,

Family , Love

2022

MeMber Directory & resource GuiDe

SABD-22_C.indd 5

•

2022-02-28 9:38 AM

CURATED NEWS — Receive time-sensitive court notices, classified ads and job postings through a weekly announcement. San Antonio legal community news is shared through the monthly e-newsletter and the award-winning print magazine, the San Antonio Lawyer.

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DIRECTORY & BENCH BOOK includes member and court listings, legal resources, services and more.

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NEW! SABA APP — Coming in 2023, a handy app to quickly access your member benefits.

18 San Antonio Lawyer® | sabar.org

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CLE fulfillment is convenient and affordable; share YOUR expertise through CLE presentations.

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PEOPLE’S LAW SCHOOL — Our community-focused civic education for San Antonio residents is presented in service by SABA members.

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CONNECT & CELEBRATE

SERVE

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NEW! LAW CENTER — Coming in 2023, a space for members to meet, earn CLE and access legal resources in a convenient location across the street from the Bexar Judicial complex.

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IN-PERSON speaker luncheons and social mixers often hosted with SA affinity bars.

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GALA BENEFIT & AWARDS — Celebrating the profession through annual recognition of luminaries and leaders while raising money for scholarships and service programs.

NEW! SALawHelp.org — Community-facing website curated for Bexar County residents to learn more about their legal issues or to find an attorney in good standing through the Lawyer Referral Service — since 1975, the only certified LRS in San Antonio to provide free lawyer referrals.

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Through the SA Bar Foundation, the charitable arm of SABA, grants are made to support pro bono services, scholarships and other law-related programs.

July–August 2022 | San Antonio Lawyer® 19

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Meet SALSA’s Board of Directors

Envision a Community Where Everyone Has Equal Access to Justice

By Sarah Dingivan and Sara Dysart

T

he Vision of the San Antonio Legal Services Association (SALSA) is “a community where everyone has equal access to justice, regardless of the ability to pay.” This Vision is based upon a twenty-plus-year history of San Antonio attorneys working through the San Antonio Bar Association to provide pro bono legal services to those in need. This Vision and the steps taken to further this Vision are not only honorable, but they also comply with the Texas Constitution: Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.1 This section of the Texas Constitution provides the basis for the right of every person in Texas to seek and obtain justice through our civil legal system when his or her rights have been violated or they have otherwise been wronged. “The term ‘access to justice’ describes the ability of any person, regardless of their circumstances, to use the legal system to advocate for themselves and their interests.”2 There cannot be justice if a person does not have access.

In keeping with the Texas Constitution and fostering a tradition of supporting “access to justice,” a State Bar of Texas Board of Directors resolution states: “. . . each Texas attorney should aspire to render at least 50 hours of legal services to the poor each year, or make an equivalent financial contribution to an organization that provides legal services to the poor.” While it is likely that most Texas

attorneys are unaware of this aspirational State Bar resolution, it is also likely that most Texas attorneys meet or exceed this benchmark. Bar associations throughout Texas sponsor ways for its members to provide pro bono legal services and financial support. Many attorneys contribute financially to the Texas Access to Justice Foundation, the Texas Bar Foundation, the San Antonio Bar Foundation, and other bar foundations, knowing that funds will be used to support access to justice.

The San Antonio Bar Association has led the way in providing pro bono legal services to our community. Over twenty years ago, District Judges Phylis Speedlin and Karen Pozza recognized the need for pro bono legal services in San Antonio and chaired a committee with the San Antonio Bar Association to create the “Just Take One” program, pairing attorneys with clients in need. The “Just Take One” program evolved into the Community Justice Program (“CJP”), receiving its non-profit status in 2004.

Since 2004, the Community Justice Program, under the leadership of Judicial Chairs and the Board of Directors of the San Antonio Bar Association, has partnered with Texas Rio Grande Legal Aide and St. Mary’s University School of Law to provide recurring clinics for indigent, vulnerable, and at-risk populations. In addition, CJP has been responsive to community needs through a variety of clinics tailored to address issues resulting from local and regional disasters, such as Hurricane Harvey and the Sutherland Springs shooting.

In August 2018, at the urging of the San Antonio Bar Association’s outgoing President, Justice Beth Watkins, and its incoming President, Santos Vargas, the SABA Board

President Robert L. Soza, Jr. (Jackson Walker, LLP) Vice President Mary Brennan Stich (Attorney at Law) Secretary Sheila Grigar (National Instruments) Treasurer Lennon G. “Len” Briley, Jr. (DirecTV)

Members Alex Miller (Valero) Jessica Johnson Lerma Marty Truss (Steptoe and Johnson) Serina Rivela (University Hospital) Susan Wilen (San Antonio Paralegal Association Representative) Gregory Zlotnick (St. Mary’s Law School, Director of Pro Bono Programs) Cameron Redding (Redding Law PLLC) Eric Michael Garza (Lindow Stephens Schultz) Michael Danforth (USAA) Beth Eby (Eby Financial) Alicia Grant (Norton Rose Fulbright) Louise Cantwell (Wex Foundation) Orlesia Tucker (FBD Partnership, LP)

Ex Officio David Evans (SABA Past President) Julia Rodriguez (TRLA) Hon. David Canales (Judicial Co-Chair) Hon. Veronica Vasquez (Judicial Co-Chair)

Meet SALSA’s Staff Sarah Dingivan (Executive Director) Ryan Cox (Interim Managing Attorney) Kat Doucette (Staff Attorney) Joe Pina (Staff Attorney) Todd Tagami (Staff Attorney) Rick Gonzalez (Fellow) Alison McConnon (Pro Bono Coordinator) Tashawna Taylor-Hall (Pro Bono Coordinator)

July–August 2022 | San Antonio Lawyer® 23

of Directors formed a Strategic Planning Committee to study and recommend a way to expand SABA’s ability to provide pro bono legal services. This committee coalesced around the formation of a board of directors independent from SABA, in order to meet the expanding need for pro bono legal services in Bexar County. A year later, in late 2019, the Community Justice Program was reconstituted and rebranded as the San Antonio Legal Services Association and a staff of two doubled to four by March 2020, thanks to significant financial support provided by the Texas Access to Justice Foundation. Robert Soza, Jr., a partner with Jackson Walker, took the helm as President, leading an independent board of directors, consisting of attorneys and public members, dedicated to meeting the many needs of low-income individuals in our community for civil legal services.

In March 2020, SALSA’s “rebranding” event to be held at the remodeled Presiding Court room at the Bexar County Courthouse was cancelled, like all other events scheduled for the next eighteen months. With only a few months operating under its new framework and very little existing infrastructure, SALSA leadership reinvented itself again in order to RISK-TAKING CAN BE FUN...

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provide pro bono legal services “remotely.”

Recognizing the impact of COVID on frontline healthcare workers, SALSA initiated Remote Wills Clinic during the summer of 2020, resulting in over 300 volunteer attorneys providing wills and directives after meeting with their respective clients remotely. Not only did this service provide peace of mind for healthcare heroes as they cared for others, but the Remote Wills Clinic also gave volunteer attorneys an opportunity to make a difference during this unprecedented time.

SALSA’s work tackling disaster-related legal issues expanded to providing representation to tenants needing assistance navigating the eviction moratoria and rent relief programs; individuals handling the probate of their loved ones’ estates; and homeowners who experienced damage during the 2021 weeklong snowstorm. San Antonio attorneys continue to volunteer through SALSA’s traditional legal clinics, taking advantage of SALSA’s training programs and videos, and connecting with volunteer subject matter experts who are available to assist. SALSA has also added an extended representation model where volunteer attorneys can sign up to take cases within their area of expertise. A key to SALSA’s success is its continued efforts to make volunteering easy, efficient, and meaningful. SALSA’s website (www.sa-lsa. org) contains up-to-date information about volunteer opportunities for attorneys and non-attorneys.

SALSA’s staff has grown from two attorneys in August 2020 to six attorneys and two pro bono coordinators; with plans to add more talent in order to expand pro bono legal services in our community. As SALSA’s leadership works diligently to build responsive programs and to recruit volunteers to implement them, they are also charged with fundraising. The San Antonio Bar Association, American Bar Association, Texas Access to Justice Foundation, Texas Bar Foundation, and other funding sources provide grants which are often for specific programs and purposes. Unrestricted funds are crucial to keeping the doors open and to assisting community members that may not fit into a traditional legal aid framework.

This need presents yet another opportunity for community support—and the San Antonio community has stepped up. Please review SALSA’s website for the number of attorneys, law firms, and corporate sponsors who continuously make financial contributions to support access to justice and consider adding your name, law firm, or organization to this list.

The San Antonio Bar Association’s commitment to access to justice continues to grow. In addition to the commitment of SABA’s presidents and boards of directors, the following judges joined the Founding CoChairs, Speedlin and Pozza, to serve as Judicial Co-Chairs: District Judges Michael P. Peden, Lisa Jarrett, Larry Noll, and Renee Yanta, and Chief Justice of the Fourth Court of Appeals Sandee Bryan Marion. The current Judicial Co-Chairs that advise SALSA are District Judge David A. Canales and Probate Judge Veronica Vasquez.

The rebranding and reconstitution of the San Antonio Legal Services Association is the current version of SABA’s community commitment and leadership. It was SABA’s past presidents, Justice Beth Watkins and Santos Vargas, and the Strategic Planning Committee who recognized the opportunity and viability of supporting an independent Board of Directors in order to provide talent and leadership singularly focused on meeting this community need and constitutional right.

Congratulations Past Presidents Watkins and Vargas, the members of the Strategic Planning Committee, along with the many attorney and non-attorney board members, staff, and supporters who have “taken ownership” of SALSA. Congratulations to the San Antonio legal community, which supports SALSA and is an integral part of its success.

Let’s spread the word to get even more volunteer attorneys and financial supporters, not to mention public awareness of the importance of making justice accessible. No doubt, public awareness of Texas attorneys’ contributions to access to justice is the perfect antidote to every lawyer joke.

Sarah Dingivan is an Attorney and the Executive Director of the San Antonio Legal Services Association.

Sara Dysart is a Sole Practitioner and Board Certified in Commercial Real Estate Law.

ENDNOTES 1

Tex. Const. art. I, § 13.

Texas Access to Justice Commission Website.

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Robert Soza, President of the SALSA Board of Directors, leads the applause.

Inaugural Justice Luncheon

By Sara Dysart, Honorary Chair of SALSA’s Inaugural Justice Luncheon

O Sara Dysart, Honorary Chair of SALSA’s Inaugural Justice Luncheon.

26 San Antonio Lawyer® | sabar.org

n Thursday, April 14th, while I listened to festive mariachi music, I walked into the Mays Family Event Center at the Witte Museum and saw a sea of lightblue covered tables, with beautiful floral arrangements. Before too long, the room filled with members from our legal and business community. Significant was the roar of conversation as colleagues greeted colleagues and introduced colleagues to others. It was a little unnerving to cut off the continued dialogue, as the video featuring Broadway Bank as the title sponsor began to play.

What followed was a sixty-minute program led by President of the Board of Directors Robert Soza, Jr., and Executive Director Sarah Dingivan, that RECOGNIZED the many volunteers and contributors who make SALSA’s pro bono services possible, RAISED FUNDS to support these efforts, ENLISTED the support of future VOLUNTEERS, and, most importantly, asked everyone to seriously consider what “JUSTICE IS…” and how they can contribute and support this fundamental constitutional right. As part of the program, guests were asked to fill in cards stating what “Justice is…” to them. Please consider your answer to this question!

Susan Wilen, SALSA Board Member and San Antonio Paralegal Association Representative, posts her “Justice is . . .” card.

Sara Dysart, Beth Eby, Mary Brennan Stich, and Former Chief Justice Sandee Bryan Marion celebrate!

Broadway Bank CEO David Bohne accepts the Lee Cusenbary Community Impact Award from President Soza and Executive Director Dingivan.

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Many thanks to Terry Tottenham for his testimonial about Allan DuBois’ life of service, and to Sister Grace Walle for her lively presentation focused on her thirty years of service work with St. Mary’s University law students. Thanks, too, to the many law firms and businesses that sponsored this event, especially our top-level sponsors Broadway Bank, Valero, and Dykema.

Particularly important to me was the creation of SALSA’s Allan K. DuBois Volunteer of the Year Award, in honor of our dear friend and colleague, who left us way too soon.

Congratulations to: Broadway Bank, which received the Lee Cusenbary Community Impact Award; United States Bankruptcy Judge Michael Parker, who was given the SALSA President’s Award; and Bill Asher, who was honored as the Allan K. DuBois Volunteer of the Year. Congratulations, also, to Cameron Redding and Beth Eby, Co-Chairs of SALSA’s Inaugural Justice Luncheon, and to the SALSA Board of Directors. It was a success!

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Fourth Court Update

Resolution in Recognition and Appreciation of Distinguished Service

By Chief Justice Rebecca Martinez and Retired Chief Justice Cathy Stone

T

hroughout the Bexar County Courthouse and Cadena-Reeves Justice Center, there are countless behind-the-scenes workers who show up every day to serve the citizens of Bexar County and the State of Texas, and to uphold the judicial branch of government.

These workers—true public servants—don’t seek attention or accolades. They simply do their job with dedication and competence.

One such public servant is attorney Wendy Martinez, who retired last year from the Fourth Court of Appeals after twenty-six years of service. Pandemic restrictions prevented a retirement party, but the four retired Chief Justices who worked with Wendy recently offered a tribute to her, a Resolution which the current Justices and Chief Justice fully adopt and which has been recorded and placed in the permanent records of the Court. The Court joins in recognition and appreciation of Wendy’s distinguished service to the Fourth Court of Appeals.

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

Retired Chief Justice Catherine Stone is a Shareholder with Langley & Banack Incorporated, where she leads the Appellate Practice Group and the Alternative Dispute Resolution Practice Group.

She is board certified in civil appellate law. She served on the Fourth Court of Appeals from 1994 to 2014 and was Chief Justice for the last six years of her tenure.

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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.

Remand; Amount in Controversy; Insurance Veloz v. Allstate Fire & Cas. Ins. Co., No. SA-20-CV-1438-JKP (Pulliam, J., Mar. 28, 2022).

The plaintiff sued Allstate for a declaratory judgment regarding underinsured motorist coverage, among other claims. The parties were diverse. The plaintiff’s state court petition expressly sought damages in excess of $1 million, and the defendant removed. When a specific amount of damages is demanded in a state court petition, that sum is dispositive, if made in good faith.

The plaintiff filed a motion to remand. The court held the million-dollar demand “could not have been made in good faith.” The court explained that, in declaratory judgment cases involving the applicability of an insurance policy, the amount in controversy is generally measured by the value of the underlying

claim—not the face amount of the policy. In other words, when the policy limit exceeds the value of the underlying claim, the policy limit does not control. Conversely, however, when the insurance policy’s limit is below the jurisdictional threshold, a plaintiff’s claim for sums in excess of that policy limit cannot make the plaintiff’s claim the amount in controversy.

Here, the policy’s $50,000 limit controlled and demonstrated that the plaintiff’s $1 million claim could not support a judgment in excess of the jurisdiction requirement of $75,000 in controversy.

Similarly, for purposes of federal jurisdiction, in actions alleging UIM coverage, a judgment of liability is a prerequisite to related or consequential causes of action and such other claims are not ripe. The plaintiff’s attorneys’ fees claims under Tex. Ins. Code § 542 and Tex. Civ. Prac. & Rem. Code § 37.009 did not add to the amount in controversy

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because Chapter 542 fees were not ripe, and Chapter 37 fees are not available in diversity cases in federal court. The court granted the plaintiff’s motion to remand.

Remand; Improper Joinder Diaz v. Home Depot U.S.A., Inc., et al., No. SA-22-CV-00004-XR (Rodriguez, J., Mar. 30, 2022).

The plaintiff sued a Home Depot employee, alleging that the employee failed to warn him of a dangerous condition after the employee undertook to clean up a hydrochloric acid spill. The plaintiff’s first amended petition asserted additional claims against Home Depot. Home Depot removed, arguing improper joinder of its Texas-citizen employee because the employee did not owe the plaintiff a duty of reasonable care independent of the duty Home Depot owes to its customers.

In Texas, employees may be held personally liable for their negligent conduct committed within the scope of employment, so Home Depot could not rely solely on the plaintiff’s allegation that the employee was acting within the scope of his employment to establish improper joinder. But individual liability arises only when the employee owes an independent duty of reasonable care to the injured party apart from the employer’s duty.

Therefore, the court’s analysis centered on whether the employee owed an independent duty based on the factual allegations pled.

An employee may face individual liability where he “directs or participates in a tortious act during his employment” or “personally creates a dangerous situation that causes injury.”

The plaintiff alleged negligent undertaking against the employee because he gratuitously undertook to clean up the spill, but the plaintiff did not allege any facts reasonably supporting the inference that the employee committed any act resulting in the spill or otherwise created the hazardous condition or made it more dangerous. Conclusory allegations that the employee participated in the creation of the dangerous condition, without facts reasonably supporting that conclusion, were insufficient. The court, therefore, disregarded the employee’s citizenship and denied remand.

Failure to Exhaust Administrative Remedies; Motion for Summary Judgment Williams v. Bexar County, et al., No. SA18-CV-01235-XR (Rodriguez, J., Mar. 11, 2022).

The plaintiff was booked into the Bexar County Adult Detention Center, where he contends he was assaulted. The plaintiff alleged the assault was sanctioned by several officers in violation of his constitutional rights under the Eighth Amendment.

One officer defendant moved for summary judgment on the affirmative defense that the plaintiff’s Eighth Amendment claim was barred for failure to exhaust his administrative remedies before filing suit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The summary judgment evidence demonstrated that the plaintiff did not file a written grievance regarding the February 18, 2018, assault until March 13, 2020, which was far beyond the deadline set out in the Inmate Handbook.

The court—noting that the PLRA was enacted to reduce the number of prisoner suits by weeding out unmeritorious claims and that the statute’s exhaustion requirement was mandatory—applied the Fifth Circuit’s “strict approach” to exhaustion and concluded the officer defendant’s summary judgment evidence established, as a matter of law, that the plaintiff failed to properly exhaust his administrative remedies prior to filing suit.

Because the issue was dispositive, the court granted summary judgment and entered an order that the plaintiff take nothing on his claims against the defendants.

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continued from page 17

the tree a big ol’ hug. “Trees are one of nature’s masterpieces. They provide shade from the sun and protection from the wind. They are nature’s lungs. They devour carbon dioxide and produce oxygen,” explains Phil.

But there’s more. The north and south sides of the park were split by Wurzbach Parkway, and animal-vehicle accidents were common.

After his mayorship ended, Phil spearheaded efforts to raise funds to build a bridge over the parkway. The idea developed that it would not be just a bridge, but a “land” bridge of concrete, steel, wood, and three feet of soil with plants and trees where animals and humans could cross. When asked about the cost, Phil famously retorted, “What did the Taj Mahal cost?” and when met with puzzled looks, retorted again, “Ya see, nobody cares!” So the Robert L.B. Tobin Land Bridge (named after a local philanthropist whose trust made the largest contribution) became a reality in December 2020, the first of its kind in the United States.

Today we still haven’t heard the last of Phil Hardberger. He’s in his office almost every day, working with the Hardberger Park Conservancy, advocating for better enforcement of the tree ordinance, and serving on the board of the Great Springs Project, with the goal to build a 110-mile trail linking all the major springs between Austin and San Antonio.

Phil Hardberger came from the treeless flatlands far from the ocean, watching the planes disappear into the sky, and observing the toils of his dad, the frustrated traveler.

He took to the sky, the mountains, and the sea, and became a lover of trees and a zealous protector of the environment. He’s traveled to

fifty-eight countries, and got educated through classrooms, books, and life experiences (some death-defying). He’s been a cotton-picker, a pilot, a journalist, a lawyer, a judge, a mayor, a husband, a father, and seeker of adventure, beauty, and understanding along the way.

Many years into the future, when we are all gone, folks will visit Phil Hardberger Park and wonder who that guy was. Someone will say he was mayor, but they won’t know the half of it.

Post-Script. Many thanks to Phil Hardberger, his assistant Cecille Martinez; Cindy Jorgensen and Denise Gross of the Phil Hardberger Park Conservancy; and Linda Hardberger, who should be considered the Patron Saint of AdventureTolerance. Recommended Terry Allen tracks: High Plains Jamboree, The Great Joe Bob, and Amarillo Highway.

Steve A. Peirce practices business bankruptcy law in the San Antonio office of Norton Rose Fulbright. He can be reached at steve. peirce@nortonrosefulbright. com and at (210) 270-7179.

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