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William S. Sessions Inn of Court

Judge Fred Biery at the Federal Courthouse

contents

ON THE COVER

6 Judge Fred Biery: While Observing The Human Condition, He Also Discovered Himself

By Steve A. Peirce

FEATURES

18 Lawyers, Professionalism, and Rules of Ethics: How Did We Get Here?

By Michael S. Ariens

23 The Specialized Multidisciplinary Alternate Response Team: A Group Effort for Treating Individuals Struggling with Mental Health Emergencies

6

Judge Fred Biery: While Observing The Human Condition, He Also Discovered Himself

By Steve A. Peirce

Federal District Court, Western District of Texas, arraignment and sentencing hearings. The defendants are wearing scrubs of different colors and stripes, depending upon the facility at which they have been held. There are chains around their feet and around their waists, and the waist chains are attached to their wrists. When the defendants raise their hands to swear to tell the truth, they can raise them no higher than mid-chest. Some defendants must communicate through an interpreter, which is a seamless process through the use of wireless Bluetooth headsets. All defendants have lawyers, most of whom are public defenders. For some defendants, family and friends sit in the audience. Others are alone.

The judge is Fred Biery, who has been on the federal district bench since 1994. Prior to that, he served as an appellate justice, state district court judge, and county court at law judge in the state system. All told, he has been a licensed attorney coming up on fifty years, five as a lawyer and the last forty-five continuously serving as a judge. Judge Biery’s staff, whom he regards as family, have worked with him for decades: judicial assistant Gilbert “Gibby” Rodriguez (forty-five years); judicial clerks Gloria Christmas (thirty-three years) and Joani Sullivan (thirty-

one years); pro se law clerk Magda de Salme (eight years); court reporter Chris Poage (twenty-seven years); courtroom deputy Jaemie Herndon (seven years); and court security officer Alan Rojas (seven years). They’ve seen it all and know what they’re doing. The judge takes care of his court family. They take care of him.

In the arraignments, defendants must plead guilty or not guilty (there are no nolo contendere pleas in federal court). As required by law, the judge must determine if the defendants are competent to proceed, advise the defendants of the charges against them and their right to trial, and of the appellate and habeas processes. If they are entering a guilty plea, the judge makes sure that they understand the rights they are giving up, and that their plea is voluntary and without compensation or coercion. Judge Biery goes through this process in a calm and thorough manner, without the hint of a script. The arraigned defendants on this day are undocumented immigrants, charged with illegal re-entry into the United States. All have previously been deported. If they plead guilty, they will again be deported, but this time with a felony record, and if caught again in the United States, they will serve a prison term in the United States. And with a criminal record, they will have little

Left to right: Chris Poage (court reporter), Joani Sullivan (judicial clerk), Alan Rojas (court security officer), Gloria Christmas (judicial clerk), Judge Biery, Liane Noble (former clerk and current Assistant U.S. Attorney), Jaemie Herndon (courtroom deputy), and Gilbert (“Gibby”) Rodriguez (judicial assistant).

chance of ever gaining United States citizenship. “I understand why you want to be here,” Judge Biery tells them. “I was born about a mile north of the Rio Bravo, and won the lottery by being born on this side of it.” He then relates a story that his compadre, Armando Rubio, is a talented mariachi who came to the United States as an undocumented immigrant many years ago, obtained United States citizenship about two years ago, and played the National Anthem on his trumpet at his naturalization ceremony.

Next come the sentencing hearings. In federal court, only the judge issues sentences. Each defendant has either previously pled guilty or was found guilty after trial. A presentence report has been prepared by a probation officer for each defendant. The presentence reports are, in essence, a review of the defendant’s life, and what to make of that life going forward. And while the reports are not public, items from them are discussed at the sentencing hearing. One defendant is a mother of six who was a former star athlete and schoolteacher with a college degree. She became addicted to methamphetamine and began transporting it to support her drug habit, and now she is guilty of conspiracy to distribute almost 4,000 grams of meth. Judge Biery asks about her life, her athletic endeavors, and her coach. Not surprisingly, having been an athlete in and around San Antonio since an early age, he knows the coach, and relates to her his own connections. The exchange is almost as if they are speaking over a cup of coffee rather than a person in chains looking up at a man on a high bench wearing a robe, with her fate in his hands. Then, while the tone remains conversational, the subject matter gets more serious. Judge Biery holds up a packet of artificial sweetener and points out that this about a gram, and that she had 4,000 of those in meth. “With all that extra meth, would you take a little to share with your kids?” he says, knowing that the answer will be “No.” “Then you can see why others don’t want their kids to have meth.” He goes on to say that much of the meth these days is laced with deadly fentanyl, and that couriers like her who lose drugs and money are often horrifically tortured and murdered by the cartels.

Another defendant is a thirty-five-year-old woman who came to the United States as an undocumented immigrant from Mexico at the age of two. Her father had brought her here to escape organized crime, and he later died by suicide. She had three children here in the United States. She was caught transporting thirty undocumented immigrants in a tractor-trailer to the United States, a job for which she was paid $450— money needed to feed her drug addiction. Judge Biery tells her that the undocumented immigrants are exploited, a system akin to slavery, and it was lucky that the trip was in the winter and no one died in the Texas heat.

It is a feature of Judge Biery’s sentencing hearings that, prior to sentencing, he directs the defendants to turn around and face their family and address them. It is a dramatic, and hopefully life-changing, moment. Each of the defendants turns and makes a tearful apology to his or her loved ones with a promise to do better. The mother of six receives her sentence and tells Judge Biery that getting arrested is the best thing that has ever happened to her, and that she will spend her time in prison rehabilitating her life. The mother of three, after serving her sentence, will be deported to Mexico, leaving me wondering how she will ever see her kids. Both defendants will receive addiction treatment while in custody. These defendants were just a few of many on this day. All were treated with respect, and no cases were handled in a perfunctory or summary fashion.

A Judge with a Little Extra to Say

Back in chambers, we speak of the recent Occupational Information Network study finding that judges are in the top five most stressful jobs. Having been emotionally drained myself just watching the aforementioned

hearings, which Judge Biery handles about twice a week, I understand. He goes on, “But I look out the window here and see the homeless, the security guard sitting in his car all day, and other folks coming into work every day, and I wonder what I have to complain about.”

The stress study defines stress tolerance as “the ability to accept criticism and deal calmly and effectively with high-stress situations.” On some cases, he projects judicial power. On all days, he connects with the suffering humanity who come before him. In his experience as a federal judge, Fred Biery has faced the Texas Syndicate, the Mexican Mafia, Tango Orejon, the Zetas, the Bandidos, the Aryan Brotherhood, the Crips, the Bloods, cartel bosses, jihadists, terrorists, sovereign citizens, drug dealers, murderers, human traffickers, pimps, child pornographers, fraudsters, embezzlers, and tax evaders. He has heard nationwide class actions and major civil cases, and has dealt with lawyers acting uncivilly. He has been in the difficult position of having to sentence the adult children of some of his classmates.

He is a judge with a little extra to say, though—known for sometimes writing entertaining opinions with lengthy dicta citing literature, religious texts, plays, movies, and songs to explain his take on things. He cannot resist pointing out irony or a “I saw what you did there” pun or play on words. He has even written opinions in poetic verse. He is fond of pithy quotes, like “never F-I-B to the F-B-I.” His opinions show that he is the sworn enemy of bigotry and a protector of voting rights, never forgetting the history of discrimination in this country. His court orders can get creative, too—like the time he ordered lawyers to kiss in front of the Alamo if they continued their incivility, or the other time he put two misbehaving lawyers in “time out” in the courthouse hall while the jury trial proceeded with second chair lawyers. Or his famous “Non-Kumbaya” orders telling the parties that they do not have to sing “Kumbaya,” but they must get along. Or his ruling rejecting an insincere apology letter from a defendant. For his ruling in favor of separation of church and state, he has been publicly vilified and privately insulted, and his early demise has been prayed for in an un-Christianlike manner by those who call themselves Christians. He serves in the largest, and one of the busiest, federal districts in the country. So yes, he’s faced his share of criticism and has dealt with high-stress situations. So where is he coming from?

A Family Story

Fred Biery’s story begins with his paternal grandfather, William Frederick Biery, the mayor of Streetman, Texas, who died in 1920, leaving widow Vermelle—pregnant with daughter Dorothy—and sons Sam (3) and Charles (1). Vermelle tried to make a go of it alone with three small children for a few years, but given the slim opportunities for women, and no life insurance or Social Security, it was not possible. In 1927, the kids were placed in the Masonic Home and School, an orphanage in Fort Worth, Texas. Around that same time, football coach H.N. “Rusty” Russell arrived at the orphanage. Coach Russell started with a group of twelve shoeless undersized orphans with no equipment. Focusing on speed, he created what is now known as the modern spread offense, and the team, nicknamed the Mighty Mites, became the dominant Texas high school football team of the 1930s, often playing in front of crowds of 10,000 fans. In the mid-1930s, Sam Biery (Fred’s dad) was the quarterback on what would now be called the junior varsity. Charles Biery (Fred’s uncle) was a 160-pound lineman on the team that went to the state finals against Corsicana. Coach Russell’s experience at the orphanage was made the subject of a best-selling book, Twelve Mighty Orphans, and a 2021 movie by the same name (unfortunately, the Biery boys are not mentioned because the book and movie focus on more well-known players).

After graduation, Sam served in the United States Immigration (Naturalization Division), the United States Border Patrol, and the United States Navy. In 1941, Sam met Fred’s future mother, Clara Belle, known as “CB.” They married in 1943 and remained together until their deaths only months apart in 2014. Fred was born in 1947 in McAllen, Texas. The family moved to San Antonio, where Sam attended St. Mary’s Law School at night on the GI Bill, while selling bronzed baby shoes during the day. Sam first worked at the City Attorney’s office. Young Fred would attend the Saturday morning “drunk docket,” where those arrested for public intoxication would appear in Municipal Court. Fred’s first job at age fifteen was working for his aunt, Deputy District Clerk Dorothy Hoagland, on the Bexar County jury wheel during the summer (Judge Biery keeps a souvenir jury wheel on his bench). After attending Baylor and serving in the FBI and the Navy, Sam’s brother Charles also attended law school. Together, the Biery brothers formed a law practice in San Antonio.

Back Home to the Jefferson Triangle

“You can call where I’m from the cradle of San Antonio civilization,” Judge Biery says in half-jest. We are riding in his pickup truck on the West Side near Thomas Jefferson High School, from which he graduated in 1966. “I’m part of the post-World War II generation that grew up in the triangle that is formed at the points of Woodlawn Lake, Jefferson High, and St. Mary’s University.” He reels off the names of prominent people from that triangle: Maj. Gen. Alfred Valenzuela (Jefferson High School); Judge Emilio Garza (Holy Cross High School); Ambassador and Judge Ed Prado (Edgewood High School); attorneys Ricardo Cedillo (Holy Cross High School), Rolando Rios (Holy Cross High School), Robert Arellano (Jefferson High School), Gerald Goldstein (Jefferson High School), and Richard “Dickie” Pena, a former Texas State Bar President who was Fred Biery’s backcourt mate on the Jefferson basketball team. Jefferson alone is remarkable for its graduates: Nobel Prize winners Floyd Curl and William Moerner; football greats Tommy Nobis, Kyle Rote, and Gabriel Rivera; tennis coach Emilie Burrer Foster; journalist Jim Lehrer; film producer Marcia Nasatir; Brigadier General Lilian Dunlap; civil rights attorney Gus Garcia; Judge Blair Reeves; Judge John H. Wood; Judge Polly Jackson Spencer; Congressman Henry B. Gonzalez; Joaquin and Julian Castro; United States Bankruptcy Judge Ronald B. King; and, of course, Judge Fred Biery, to name a few.

The Jefferson triangle is an interesting mix. Nearby are Catholic churches, a Mormon church, a synagogue, a Greek Orthodox church, and all manner of Protestant churches. Judge Biery’s panoramic photo of his Jefferson senior class, which is framed in his chambers, shows a diverse student body for the times. There are some stately

old homes north and east of Jefferson, but the homes south and west of the school are modest at best. Sam Biery’s family lived in the modest part. “Our first home was at 1618 West French Place, a $50 per month duplex. When I was three, the family bought a 1200 square foot ‘Jewel Box’ home at 247 Placid, with a $84 per month mortgage,” he says. We pull up in front of the Placid house. “Dad liked to gather up the neighborhood kids for softball games in the park down the street. That must have come from his upbringing in the orphanage,” Judge Biery reminisces. “Mother would drop me off at the bus stop close to Jefferson Village Shopping Center, and I would ride the bus at night to be one of the ‘knothole gang’ at the San Antonio Missions’ baseball games.”

“Mother feared that her son would turn out like her father and brothers—who were abusive when they drank—so she pushed my sister, Anna Lisa, and me to achieve. Church was central to that,” says Judge Biery. “There was Sunday school on Sunday mornings, followed by church services, Methodist Youth services in the afternoon, followed by Sunday night service. Then Wednesday family night and Thursday choir practice. I was put in oratorical contests at age eight and did some lay preaching as a teen.” He continues, “I gave graduation speeches for my ninth grade class and also for my senior class. Mother hoped I would be a Methodist minister. Anna Lisa became a beauty queen. My parents lived vicariously through us for the childhoods they never had.”

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Basketball was a big part of Fred’s young life, and it remains so today. There is a poignant nostalgia about an old hoopster returning to his childhood gym. We stop off at Woodlawn Lake Gym (built in 1929), where Fred played his first game at age six, to peer into the window, take a picture, and note that the backboards are new, but the wooden seats have probably never been replaced. Another stop was at the location of his old church, where he had practiced on an outdoor hoop in the parking lot. He was a starting guard on the Jefferson team for Coach Jim Heiser, with whom he was close until the latter’s death. His Junior High Coach, Bohn Hilliard, helped young Fred get work as a

Sitting in chambers with basketball mementos.

A Personal Story Of Failure And Mental Health

By The Honorable Fred Biery

A lost relationship forced an inward look and an outward seeking of mental health to help me come out better on the other side.

Lessons learned:

1. Shrink the ego.

2. Nurture relationships.

3. Listen . . . and hear.

4. Be empathetic.

5. Be vulnerable, even if it results in criticism. Sticks and stones can break my bones ….

6. Embrace regrets.

7. “Gracefully let go of things not meant for you.” — Buddha.

Message to young lawyers: Better to know oneself at forty than at seventy-five, but …it’s never too late to start over.

basketball camp counselor in North Carolina during his high school summers, where he went joyriding on freight trains and hitchhiked around Western North Carolina, using up “seven of [his] nine lives.” He played college basketball for Coach Verl “Jiggs” Westergard at Texas Lutheran University. With his three-on-three team from the Jewish Community Center, he has won eighteen gold and silver medals in the Senior Games. And, at age seventy-five, he plays pickup games at a school gym on Saturday mornings with guys young enough to be his sons. “Sports teach discipline, teamwork and how to come back after a defeat,” he says.

A Law Career Begins, Spanning Parts or All of Six Decades

“Going to law school was a turning point in my life,” Judge Biery says. “I attended Southern Methodist University law school on a Hatton W. Summers Scholarship, but to keep the scholarship, I had to remain in the top 25% of the class.” It was at SMU law that Fred met his study partner, Evelyn, and they married while in law school. He also served in the Army Reserves while in law school and continued to do so until 1976. After law school, Fred joined his father’s and uncle’s law firm. Judge

Biery recalls: “We had a ‘door’ practice, meaning we took whatever cases walked in the door. My uncle was the stoic and the legal scholar. My dad was more political and outgoing.” Many of the values that Judge Biery has displayed throughout his career were passed down from his father. “Dad had witnessed a lynching in Corsicana when he was seven years old. It haunted him for the rest of his life. He opposed the death penalty and was a member of the American Civil Liberties Union.” Judge Biery recounts with pride that his father “helped persuade the state legislature to get rid of the state’s system of coverture that kept married women subservient. And he believed that the principles of separation of church and state were violated when Jewish kids in public schools were required to recite the Lord’s Prayer.”

Life Changes and Shocking News

In his late twenties, another life-changing event occurred. He decided to run for County Court at Law against an incumbent, which was an unheard-of longshot and a professionally risky maneuver. But with the help of his mother, many friends, and extended family, who block-walked, worked the polls, and combed the phonebook for addresses to which to send thousands of “Vote for Biery” postcards, he won election. Judge Biery would later be elected without opposition to the 150th District Court and the Texas Fourth Court of Appeals. His only election loss was in the Democratic primary for the Texas Supreme Court, to a lawyer with no judicial experience, but a famous name: Gene Kelly. He jokes that he “might have won if” he “had changed [his] last name to ‘Astaire.’”

In his mid-thirties, then a divorced single man, he was asked by a lawyer friend to consult on an adoption issue. Judge Biery ended up adopting the newborn child himself, a daughter he named Anna Lisa, after his sister. A few years later, he married Marcia, and they adopted another daughter, Molly. Now granddaughters Harlow and Gema (and a third grandchild due shortly) are the apples of his eye. And at the age of forty, he received shocking news from his mother that his dad, then seventy years old, had been admitted to a local psychiatric hospital. “It turned out that my dad had been having panic attacks and suicidal thoughts since about the time I was born. For decades, he had been seeing a psychiatrist. His happy exterior life showed no signs of the demons that haunted him.” The crisis occurred because the elder Biery’s “doctor retired and dad did not continue his treatment.” Judge Biery marveled, “Mom and dad kept this from my sister and me all those years.” But in retrospect, there were clues that Judge Biery perceived throughout his childhood. “Something occurred to me,” he explains. “My dad and uncle were equal law partners. But Uncle Charles lived in a much nicer house in Terrell Hills. Back then, there was no insurance to cover psychiatric problems. Mother worked at an insurance company in her young adult years and as registrar at Jefferson from 1970 to 1985.” Judge Biery realized that his mother had not only worked, but she had also “denied herself things like air conditioning and a washing machine to take care of her husband.” He adds, “I think my dad had a lot of trauma from seeing a lynching at a young age and from being separated from his mother and placed into the orphanage.” Fortunately, Judge Biery’s father “resumed therapy and modern psychiatric medicines and lived happily into his late nineties.”

The Federal Judge

Judge Biery credits his appointment to the federal bench, at least partially, to serendipitous luck. “The Iraq war kept

A souvenir from the late 80s judicial campaign is Judge Biery’s brick-style cell phone.

President Bush, Sr. too occupied to appoint a lot of federal judges. Then the candidacy of Ross Perot helped Bill Clinton get elected President,” he says. So, Justices Fred Biery and Orlando Garcia of the Fourth Court of Appeals were nominated in 1993 to the federal district court by President Clinton, relieving Biery’s mom from campaign work forever. Judge Biery would serve as Western District of Texas Chief Judge from 2010 to 2015.

Among the thousands of cases Judge Biery has heard, the Medina Valley ISD case stands out. It was an action by an agnostic family to enjoin the use of religious language at a public high school graduation ceremony. Judge Biery granted partial injunctive relief limiting the use of certain religious words, and a firestorm ensued. The Fifth Circuit dissolved the injunction within forty-eight hours, expressing doubt that the enjoined remarks were school-sponsored. A then-presidential candidate publicly called Judge Biery, the former teen preacher, an “anti-religious dictatorial bigot,” and called for a law to allow Congress to subpoena judges to explain their rulings. Threats and harassment, worse than those from organized crime, followed. The case concluded with a settlement approved by Judge Biery in an opinion containing his Appendix II, a magnum opus on why there is an Establishment Clause in the Constitution, to wit:

[I]f government-run public schools also joined hands with religion and had the power to impose religious views, questions arise: Which holy books and prayers would be preferred? The Torah? The Book of Mormon? The Catholic Bible? The New Testament? The Bible as edited by Thomas Jefferson? The Koran? Would Christians be required to face Mecca or observe Hebrew prayer? Would Jews and Muslims be obligated to stand and recite the Lord’s Prayer?[1]

The opinion concludes with a “Personal Statement” thanking the United States Marshal Service for their security, blessing the lawyers who worked on the case, and stating:

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.[2]

Judge Biery’s 2011 Aquifer Guardians3 opinion is also the stuff of legend. An environmental group sought an injunction to halt the construction of a highway interchange until a study could be done to consider the effect on certain karst invertebrates (cave spiders). Judge Biery’s extensive factual and legal analysis is preceded by a commentary on life in South Texas before the days of highway interchanges, from 1950-1970 (roughly the first twenty years of his life). It is a remembrance of the best of times—where kids played in the streets, and dads could support a family on one income—and the worst of times—marred by legalized discrimination

against people of color and women. He posits the theory that the strain on the water systems and environment in South Texas was caused by the invention of air conditioning, allowing less heat-tolerant folk from north of the Texas border to settle here, and that the best solution would be a reverse migration north of the Red River and East of the Sabine River. But in the end, despite his personal lamentations and tongue-incheek proposal on how to fix things, Judge Biery denied the injunction, and, years later, the interchange was completed. The opinion is thirtyfour pages long with sixty-three footnotes, and cites, among many others, Dickens, Marvin Hamlisch, the Lone Ranger, Superman, the Pearl Brewing Company, Shakespeare, the X-Files, the Bible, and Elton John. If you read no other Judge Biery opinions, read Medina Valley Appendix II and Aquifer Guardians

The Judge Biery Reader

On Religious Issues

The Medina Valley ISD Case [SA-11-CA-422-FB] (Injunction limiting religious speech at high school graduation ceremony).

David Lat, “A Judge of the Day, Back in the News: Fred Biery,” Above The Law (June 3, 2011) (“Judge Biery’s ruling banned students and other speakers from using religious language in their speeches.”) See Schultz v. Medina Valley ISD, 2011 WL 13234770 (W.D. Tex. June 1, 2011).

Robert Rivard, “Pray at Graduation – Pray More for Graduates,” San Antonio Express-News (July 3, 2011) (“I like men and women who read books more than those who study polls. I like leaders who serve as a way of giving back to their communities rather than those who maneuver to live off their communities. Federal Judge Fred Biery. . . is my kind of leader. He is as likely to cite Shakespeare or Samuel Clemens in his signature written opinions, many of which do not make the news but do make my reading list.. . . Since his [Medina Valley] ruling, Biery has been subjected to threats, obscenities and derision.”).

Tracy Idell Hamilton, “Biery’s the man Gingrich just loves to hate,” San Antonio Express-News (Jan. 28, 2012) (In response to the Medina Valley ruling, Newt Gingrich states: “I would do no more than eliminate Judge Biery. . . and the Ninth Circuit.”).

APPENDIX II to Schultz v. Medina Valley ISD, 2012 WL 517518 (W.D. Tex. Feb. 9, 2012) (Judge Biery on why there is an Establishment Clause in the Constitution, inventing the word “newtralized”).

Hon. Fred Biery, “Schultz v. Medina Valley ISD: When Cultures and Beliefs Collide (Or How Air Conditioning Changed Texas),” San Antonio Lawyer (Sept/Oct 2013).

Kashmir Hill, “Judge of the Day: Fred Biery,” Above The Law (April 8, 2008) (a riff on Cornerstone Christian Sch. v. Univ. Interscholastic League, WL 2097477 (W.D. Tex. Apr. 1, 2008)). In an opinion peppered with Biblical citations, Judge Biery denies an application by Cornerstone Christian for admission to the state University Interscholastic League. According to Above the Law:

The Things He Loves

“When you get to be Chief Judge, they hang your portrait in the federal courthouse,” says Judge Biery. His portrait is unlike all the others in that Judge Biery is posing with pictures of his parents and daughters, a basketball, and a gardening tool. “These things are there to show that you don’t get where you are by yourself; that it takes the support of your loves ones; and that you need to surround yourself with the things that you love,” he says.

We visit in Judge Biery’s backyard, a wooded natural area. “This is my sanctuary,” he says, looking over the yard’s small statues of St. Francis of Assisi and Buddha, and the Protestant Cross. He shows me where he gardens and the pictures of his crops. “Growing food creates something, teaches humility and appreciation of those who farm full time, and

“Based on his photo and impressive religious verbiage, we nominate Fred Biery to replace Charlton Heston as Moses.”

On Voting Rights

Texas League of United Latin Am. Citizens v. Whitley, 2019 WL 7938511, at *1 (W.D. Tex. Feb. 27, 2019) (enjoining the Texas Secretary of State from an attempted voter purge; referring to a press release by the Texas Attorney General: “While the Court would prefer that political rhetoric be newtralized to more civil discourse, Article III of the Constitution bestows no power on the federal judiciary to make wishes come true.”); see also Guillermo Contreras, “San Antonio judge takes Texas to task over voter purge effort, calling it a ‘solution looking for a problem,’” San Antonio Express-News (Feb. 27, 2019).

Texas Democratic Party v. Abbott, 461 F. Supp. 3d 406 (W.D. Tex. May 19, 2020), vacated and remanded, 978 F.3d 168 (5th Cir. 2020)(Judge Biery finds that fear of contracting COVID-19 was a disability that allowed for early mail-in voting); on remand Texas Democratic Party v. Scott, 617 F. Supp. 3d 598 (W.D. Tex. 2022) (granting defendant’s motion to dismiss and concluding, “Judicial decisions, even those of the Supreme Court, can be overruled or affirmed in a venue called the voting booth. Accordingly, matters can be decided by those who exercise: the right to vote, that is. In the physical realm it is called ‘use it or lose it.’”)

Fred Biery, “Commentary: It’s up to the people to preserve democracy,” San Antonio Express-News (Sept. 29, 2022) (“Yes, it is burdensome to be a citizen in a democracy and inconvenient to go to the polls or serve on a jury, though those who gave their lives so we could do those things would wonder why they did if we don’t. Democracy dies not always by conquering armies but by sloth.”)

On Civility

Patrick Danner, “San Antonio judge warns attorneys to behave or he’ll make them kiss in front of the Alamo,” San Antonio Express-News (Aug. 16, 2018).

complements professional therapy,” he says. Two beautiful and rare Mexican eagles light on a tree. “We are in the bottom of the eighth inning environmentally, and Mother Nature bats last, so we should enjoy her moments of wonder,” he observes. The property contains an arroyo with an “H.F. Garcia” street sign stuck in it, a souvenir from an unsuccessful effort to name a street after a federal judge colleague. Taking his lifetime appointment literally, he says that his retirement plan is to “have Porter Loring Mortuary come get [him].” He tells me that he’s arranged to someday have his ashes returned to the soil he has tilled for many years, in a brief ceremony presided over by two lawyer friends. He confirms the rumor that he has already written his own obituary, which will be unlike the usual. Having witnessed his dad’s ordeal and the many defendants with addiction, bipolar disorder, depression, and

other afflictions of the mind, he is a great believer in mental health treatment. He admits he waited too long to seek therapy for himself, but now regards it as a valuable tool to maintain his health. Self-described as complex, conflicted, and confused, the former is eternal, but the penultimate and ultimate have been resolved.

A Joyous Occasion

On our last visit, I was honored to have a backstage pass to a naturalization ceremony, where new American Citizens are sworn in. Back in chambers, Judge Biery dons his robe and clip-on tie to cover his western wear underneath. The marshals arrive and lead us through a back hallway, and we pass by stainless steel cages where the criminal defendants from the arraignments and sentencing hearings are held. It

Joe Patrice, “Federal Judge Wants Ted Boutros To Make Out With Plaintiff’s Counsel In Front Of The Alamo . . . And That’s Not Necessarily The Most Insane Part Of This Order,” San Antonio Express-News (Aug. 17, 2018) (discussing Judge Biery’s NonKumbaya Order that counsel do not need to hold hands and sing Kumbaya, while warning against using acerbic shrillness on the pleadings).

On Sentencing Philosophy

Alta Lee Kemper v. United States of America, SA-92-CR-13-FB. “This case calls out for justice to be tempered with mercy. Alta Lee Kemper is but one more example of this country’s original sin and its legacy of families torn apart on the auction block, children separated from their parents, Jim Crow, segregation, unstable childhoods and mass incarceration. That history reverberates to this day in sociological chaos and an American caste system wrought by human error and hubris into which Mr. Kemper did not choose to be born . . . .”

Compare and contrast United States of America v. Charles Augustus Banks, IV, SA-16-CR-618-FB (financial advisor convicted of stealing seven million dollars from Tim Duncan; sentenced to four years in prison); see also Ann Marsh, “Advisor who defrauded NBA legend Tim Duncan gets 4 years in prison, takes verbal beating from Judge,” Financial Planning (May 25, 2023).

On the Death Penalty

Adanandus v. Johnson, 947 F. Supp. 1021, 1030 (W.D. Tex. 1996), aff’d, 114 F.3d 1181 (5th Cir. 1997) (170-page opinion denying habeas relief in a death penalty case: “The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death, collectively imposed upon the predators among us through the might of the State. Having democratically given vent to normal human emotions in the face of incredibly heinous acts, the legal exercise of the power to end a life requires careful scrutiny by some objective entity bound by the rule of law. The alternatives to the imposition of the ultimate punishment within a framework of due process are the anarchy of a lynch mob or the whim of a dictator and the concomitant devolution of society to the level of those deserving execution.”)

On the Environment

Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 202 F. Supp. 2d 594 (W.D. Tex. 2002) (reluctantly ruling in favor of mall developers in an environmental case: “The reaping and reckoning in public health and quality of life which will come to our children and grandchildren will echo from what we incrementally sow into their environment and whether we come to an epiphany of the interdependence and interrelatedness played out in the mystery of the dance called life. . . . Despite my personal lamentation about failing to nurture nature, my oath and the judicial process require decisions to be made within the parameters of the law, notwithstanding my own view that we have quite enough of the sterility of steel and concrete stores, several now standing vacant.”)

On Writing Style

Aquifer Guardians in Urb. Areas v. Fed. Highway Admin., 779 F. Supp. 2d 542 (W.D. Tex. 2011) (Judge Biery’s lament on immigration from the north), see also Nathan Koppel, “Court Jesting: These Sentences Don’t Get Judged Too Harshly,” The Wall Street Journal (June 29, 2011) (discussing creative writing in federal court opinions, featuring Judge Biery’s Aquifer Guardians opinion)

35 Bar & Grille, LLC v. City of San Antonio, 943 F. Supp. 2d 706 (W.D. Tex. 2013) and Allstars v. City of San Antonio, No. CIV.A. SA-03-CA-356-, 2003 WL 21204471 (W.D. Tex. May 19, 2003) (the strip club opinions, chock-full of double-entendres and bad puns); see also Rick Casey, “Cut the judge some slack on doubleentendres,” San Antonio Express-News (May 4, 2013) (“I cut Biery some slack [on the double-entendres in the Allstars opinion]. Having covered many trials in my career, I am sensitive to the uncommonly boring nature of being a judge. Most trials and other judicial proceedings are 80 percent tedium, 10 percent lawyerly testiness and, at best, 10 percent interesting disclosures.”).

Amended Order Granting Summary Judgment, Paul Revere Insurance, SA-95-cv-1168 FB (Dec. 18, 1996; not published; available on request) (opinion with poem written in the style of Longfellow’s “Midnight Ride of Paul Revere”).

is a reminder on this particular occasion that the job of a federal judge entails both closing and opening the gate to America. And Judge Biery clearly delights in the latter. “It’s like getting paid to eat ice cream,” he says of this part of the job. The ceremony takes place at the stage out in the open on the courthouse first floor. Over 200 new citizens from 55 countries wait to be sworn in, the culmination of a process that takes years to complete. A color guard from East Central High School presents the colors, and the Pledge of Allegiance is recited by all. An Army band plays the National Anthem. Judge Biery tells the new citizens the story of his Swiss great grandfather, who immigrated to the United States in the late 1800s to avoid being conscripted into Kaiser Wilhelm’s German Army. There, he met his wife (also a Swiss immigrant), and they became tenant farmers in Tennessee. He says “Standing on this stage is an honor. But it is happening because I am standing on the shoulders of those who risked an ocean voyage and tilled the earth to become Americans.” Each of the new Americans in the audience stands as the country of his or her orgin is called out, and Judge Biery leads them all in their oath. A video with President Kennedy’s “Ask not what your country can do for you” speech and patriotic music is played to conclude the ceremony. It is a heartwarming experience, the polar opposite of arraignment and sentencing.

We place a great deal of trust in federal judges. We grant them enormous power to make decisions with life-altering effects on people and our Nation. Their words have tremendous weight. A comment from the bench, or even a facial expression, can alter the course of a case or dramatically affect a client’s life or the arc of a lawyer’s career. Their writings are published and republished and retained forever, and sometimes become the law of the land. And their words can result in threats (or worse) on them, made by those who disagree. Like all of us, their decisions are informed by their life experience and their ability to learn as they go through life. Under that robe is a human being with a story. And Fred Biery is a good one.

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.

ENDNOTES

1Judge Biery’s Appendix II is available at Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-422-FB, 2012 WL 933115, at *3 (W.D. Tex. Mar. 19, 2012) and Schultz v. Medina Valley Indep. Sch. Dist., No. CIV. A. SA-11-CA-422, 2012 WL 517518, at *18 (W.D. Tex. Feb. 9, 2012).

2See Ken Herman, “A federal judge gets personal,” Austin-American Statesman, (September 1, 2012) available at https://www.statesman.com/story/ news/2012/09/01/a-federal-judge-gets-personal/9775596007/ (updated September 27, 2018).

3Aquifer Guardians in Urban Areas v. Fed. Highway Admin., 779 F. Supp. 2d 542, 545 (W.D. Tex. 2011).

Judge Biery with his daughter, Molly. Photo credit: Giang Nguyen.

Judge Biery with his daughter Anna Lisa and granddaughters Harlow and Gema. Photo credit: Marcia Mattingly.

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Lawyers, Professionalism, and Rules of Ethics: How Did We Get Here?

By Michael S. Ariens

Introduction

In mid-1989, the State Bar of Texas adopted, by referendum, the Texas Disciplinary Rules of Professional Conduct. In November of that same year, the Supreme Court of Texas and the Texas Court of Criminal Appeals jointly adopted the Texas Lawyers’ Creed of Professionalism. The former was adapted from the Model Rules of Professional Conduct, approved in August 1983 by the American Bar Association (ABA). The latter was touted as the first of its kind: The order of its two highest courts made Texas the first state to adopt a statewide creed of professionalism.

Though both documents sought to channel the behavior of Texas lawyers, their titles gave away their opposing approaches. In marked contrast to Texas’s Disciplinary Rules—which were minimum standards that subjected a lawyer failing to meet such standards to reprimand (private or public), suspension, or disbarment—the Lawyers’ Creed was a statement of faith in lawyers as professionals. The Lawyers’ Creed was “primarily aspirational,”1 and the goal of its framers was to assist lawyers in attaining “the highest degree of ethical and professional conduct.”2

This carrot-and-stick approach to shaping lawyer behavior was not new. It had been commonplace since the Revolutionary era. When Thomas Paine wrote, “In America THE LAW IS KING” in Common Sense

(1776), he justified popular sovereignty and implicitly acknowledged the extraordinary power possessed by American lawyers. But power tends to corrupt, so how did lawyers justify the possession of power against the public’s charges of corruption? The most prominent justification lawyers offered was the claim that they acted only under a dual duty, serving their paying clients and the public as “officers of the court” or “servants of the law.” Lawyers who failed to serve both client and the public were unprofessional, subjecting themselves to sanction.

Over time, three basic standards developed for determining whether a lawyer’s actions are subject to disbarment or other sanctions. First, a lawyer could be disbarred for acting dishonorably. Honor and dishonor were determined based on one’s reputation—specifically, one’s reputation among peers. Second, as the nation (and the legal profession) grew in population and size, what one’s peers thought—an external standard—was displaced by an internal standard—conscience. Conscience remained the touchstone in assessing lawyer behavior for over a century. Third, a system of sanctioning lawyers based on whether they violated rules of ethics began to emerge. This essay briefly explains each of these three approaches, as well as why Texas lawyers and judges adopted both

a set of Disciplinary Rules and a Creed at the same time.

The Divided Lawyer

The 1701 Massachusetts attorney oath of office ended with an injunction that the lawyer pledge “all good fidelity as well to the courts as to your clients.” Lawyers were their clients’ agents, but not ordinary agents, for they were also officers of the courts. They were to be faithful to both client and court. Further, as officers of the court, they were bound to obey standards higher than the marketplace. What about those lawyers who failed to serve as officers of the court? Often called pettifoggers and later shysters, mouthpieces, and hired guns, they were accountable to their fellow lawyers, and subject to disbarment when they failed to meet their dual duties.

Honor

For much of American legal history, disbarment proceedings took place in the court where the lawyer practiced law. Someone (another lawyer, the judge, occasionally clients) complained. Through the 1830s, the complaint included a claim that the lawyer failed to behave honorably. In theory, lawyers protected themselves and—indirectly—the people by disbarring dishonorable lawyers. For example, in an 1823 disbarment proceeding,

the main charge against the lawyer was that he had a “general reputation as to . . . ill-conduct in [his] profession.” Disbarment proceedings were few, however.

Conscience

By the 1840s, the standard of honor had dissipated. It was replaced by conscience, which assessed whether the lawyer had acted consistently with his conscience. The lawyer’s conscience was formed by one’s character and, more broadly, one’s moral education. It was internal; no lawyer could be questioned by others for acting according to one’s formed conscience. However, a lawyer acting contrary to conscience, by acting contrary to law, was subject to disbarment.

The idea of conscience as the touchstone for lawyer behavior lasted for well over a century. In a rapidly changing society, a lawyer’s internal conscience was the only significant check on much lawyer behavior. Bar associations did not arise until the last three decades of the nineteenth century, and all were voluntary. The first mandatory bar associations (possessing some authority to disbar its members) were created in the 1920s and rose in fits and starts.

Claims of conscience could also be abused, and lawyers from the 1840s to the early twentieth century tested the boundaries of ethical behavior. This test often amounted to de-valuing one’s duty to serve the public as an officer of the court in favor of acting as a zealous representative of one’s paying clients. How far could a lawyer go when representing a client without violating the lawyer’s duty to serve the public?

Two of the most famous lawyers of their time, Rufus Choate of Boston and David Dudley Field of New York, believed a lawyer could go quite far when representing clients. Both were highly sought after, and thus highly paid. Both were credibly accused by some lawyers of serving their paying clients at the expense of the public’s interest, and both were defended by other lawyers. In assessing the behavior of Choate before the Civil War (18611865) and of Field after it, the central issue was determining when zealous representation of one’s clients demonstrated disloyalty to the lawyer’s duty as an officer of the court. The challengers and defenders of both reached predictably opposing conclusions.

As much of the nation moved decisively into the industrial revolution, lawyers became more crucial to the business world. Their work also became more fungible, leading many lawyers to complain bitterly that they had become “little more than a paid employee,

bound hand and foot to the service of his employer.” Relatedly, as allegedly said by the robber baron Jay Gould, “brains were the cheapest meat in the market.” These changes in the relationship between lawyer and (powerful) client were one reason American lawyers began crafting canons of ethical conduct.

Conscience and Rules

The earliest code of lawyer ethics was adopted by the Alabama State Bar Association in 1887. This code consisted of fifty-seven rules and seven sworn duties (such as keeping inviolate a client’s communications), which were intended to serve as guidelines, not as ethical standards. That is, they were framed to assist a lawyer unsure about his particular duties. Additionally, the Alabama code of ethics divided the rules into those related to the lawyer’s duties to the courts and those concerning their duties to opposing counsel, client, and the public.

Two other bar associations quickly adopted the Alabama code. By 1907, nine other bar associations joined their predecessors, and others were considering adopting a code of ethics. Jumping in front of a forming crowd, the American Bar Association (ABA) began to lead the way and, in 1908, approved its Canons of Ethics. These early canons of ethics were largely guidelines developed to aid a lawyer whose conscience was uncertain. The development of codes of ethics occurred as the legal profession was being transformed. Between 1870 and 1890, the number of lawyers had tripled, outstripping the nation’s population growth. The increased supply of lawyers and the Panic of 1893 had a lengthy and adverse impact on lawyer income. These economic stressors led some lawyers to ask, can a lawyer be honest and successful? For many, the answer was at best uncertain. Lawyers complained about unprofessional pettifoggers, shysters, ambulance chasers (coined at the end of the nineteenth century) and—on the corporate side—“corporation tricksters,” lawyers who defended railroads and other businesses in personal injury matters.

The ABA Canons of Ethics, adopted by most state bar associations by the mid1920s, generally followed the Alabama code: It offered guidelines a troubled lawyer might consider in shaping one’s conscience. The 1908 Canons of Ethics remained the guide to lawyer behavior in most states for over six decades. For much of this time, amendments to these Canons focused on trivialities, most often an overzealous policing of bans on advertising, “direct, or indirect.” One perceptive contemporary critic, though,

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The Lawyer’s Conscience explores the challenges American lawyers have historically faced in striving to serve both their clients and the public, as their oath demands.

complained that the Canons failed because they focused on what a lawyer may not do. What lawyers needed instead, he concluded, was an expression of some worthy ideals in the practice of law, for “ideals of some kind, lawyers, like other men, necessarily must have.”

Aspirations and Duties

The “golden age” of American lawyers dates from 1946, after the end of World War II, to 1969. It was, at least, a golden age in economic terms, though not otherwise. The supply of lawyers (due both to the Great Depression

and the war) was low, and the demand for legal services was high. Consequently, lawyer income rose tremendously. By 1969, median lawyer income was $47,638 in real 1983 dollars, an increase in real income of 87.4% in twenty-two years. During those plentiful times, the ABA successfully adopted a Code of Professional Responsibility (1969), which most states adopted as law by 1972. Then the economics of the legal profession fell apart. From 1970-1983, the legal profession grew by 75%, but real median lawyer income in 1979 was 21% less than

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it had been in 1969. While some lawyers greatly prospered, many struggled, and this struggle helped lead to the ABA’s creation of another committee to write ethics rules. The 1969 Code of Professional Responsibility was divided into three parts: nine Canons listing “axiomatic principles,” a series of Ethical Considerations “aspirational in character,” and a set of black-letter Disciplinary Rules “mandatory in character.” The Code was intentionally structured to encourage lawyers to think beyond the mandatory minimum standards as set forth in the Disciplinary Rules; they were to consider how to “aspire” to a more informed professional judgment in the practice of law. They assisted a lawyer in forming one’s conscience.

Initially, the 1969 Code was eagerly embraced, but by 1977 it was attacked as an immature and “transitional document.” The attack was particularly directed toward the Ethical Considerations, considered the heart of the Code. Though the Code and the Ethical Considerations had major problems, the ABA decided against salvaging them. Instead, the ABA embarked on a third effort to re-state the rules of ethics. The debates on these rules exposed a yawning divide among lawyers, one that resonates today.

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Model Rules as Rules

It was not until the ABA adopted the Model Rules of Professional Conduct, though, that rules were crafted to displace conscience. The members of the Kutak Commission, which the ABA charged in 1977 with revising ethics rules, initially rejected the “basic posture of ‘my client, first, last and always,’ [which] allowed little room for development of the attorney’s role as an officer of the court.” Instead, it began its work by emphasizing the “theme” of the lawyer as social trustee, as one who represented private clients as well as a “determinable public interest.” At one of its early meetings, one anonymous member asserted, “[O]ur Committee ought not to hesitate to promulgate statements of ethics it believes to be correct but which may not meet with the general approval of the Bar.” By the time the proposed final draft of the Model Rules of Professional Conduct was released in May 1981, the Kutak Commission had largely capitulated. This draft made few references to a duty to serve a determinable public interest, and by the time the ABA House of Delegates approved the Model Rules in August 1983, even those few mentions had been excised.

The Model Rules ignored ethical considerations; the Rules were about rules, standards below which no lawyer was to act.

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The lawyer was not to read the Model Rules to inform one’s conscience, but to read them in order to follow them so as to avoid any disciplinary charge. The Model Rules marked an inward turn of the legal profession; no lawyer was bound (or even encouraged) to inquire into any determinable public interest or one’s conscience. Yet somehow bar leaders were surprised when lawyers subsequently looked “at nothing but the rules.”

The Professionalism Crisis and Core Values

At the same 1983 annual meeting at which the Model Rules were adopted, the ABA promoted a “Presidential Showcase” on the lawyer’s professional independence. This Showcase illuminated what was called the “professionalism” crisis, a sense that lawyers were merely agents of clients who did not serve the public. This professionalism crisis eventually led to the adoption of the Texas Lawyers’ Creed of Professionalism in November 1989, which sought to fill the gap left by the Texas Disciplinary Rules of Professional Conduct, adopted in mid-1989.

The Disciplinary Rules followed the general approach of the ABA Model Rules—they were thou-shalt-nots. These minimum standards offered little to aid a lawyer in forming a professional judgment. Instead, these Rules operated in that small slice of actions that constituted misconduct. For the much larger number of decisions requiring judgment, no assistance was provided. This was troublesome because lawyers during the 1980s were faced with significant economic insecurity and reputational decline. Such insecurity was exacerbated by legal specialization, which often narrowed the number of clients a lawyer was competent to serve. Legal specialization tied lawyers more closely to their clients, and that led litigators to engage in “winning at any cost.”

Creeds like the Texas Lawyers’ Creed have been popular. In a 2015 count, 123 courts and lawyer organizations had adopted some sort of creed. But this alone was insufficient. Another suggested solution was to define the profession’s “core values.” The core values issue was brought into the spotlight at the end of the twentieth century. In looking at both the ethical requirement that lawyers maintain their professional independence—thus, banning the sharing of legal fees with nonlawyers— and the issue of the breadth of exceptions to the duty to maintain client confidences, lawyers found themselves again at odds. The contestants agreed that the profession’s core values served as the foundation for ethics

rules, and both sides claimed they were protecting the profession’s core values. They disagreed, however, on what those core values were. What was the duty the lawyer had to serve as “servant of the law” and as a zealous representative of one’s private, paying clients?

Today, the Texas legal profession remains trapped by two documents that are thirtyfour years old. Lawyers who were young when those documents were created are senior (or retired) lawyers now. Few are ready to argue that the Disciplinary Rules and the Texas Lawyers’ Creed have solved the problems of lawyer misconduct. Most lawyers simply appear to ignore them, seemingly content that they are untouched by concerns listed four decades ago.

Conclusion

American lawyers have always struggled to serve both client and the public. That struggle is never-ending. But some approaches are, I believe, better than others. Ethics rules condemning certain acts can guide us in what not to do, but they do not provide lawyers with any ideals. A return to conscience, though an imperfect guide, may help us understand what to consider doing, and why we might so act.

Michael S. Ariens is the Aloysius A. Leopold Professor of Law at St. Mary’s University School of Law. He is the author of The Lawyer’s Conscience: A History of American Lawyer Ethics (2023), from which this essay is adapted. The opinions expressed in this essay do not necessarily reflect those of St. Mary’s University.

ENDNOTES

1Order of the Supreme Court of Texas and the Texas Court of Criminal Appeals, 52 Tex. B.J. 1303, 1303 (1989).

2Id

“When I explain it, they understand it.”

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INCOMING PRESIDENT | STEVE CHISCANO

OUTGOING PRESIDENT | DONNA MCELROY

On August 25, 2020, the family of thirty-one-year-old combat veteran, Damian Daniels, desperately called 911 dispatchers to assist Daniels as he struggled through a mental health crisis. Daniels was fatally shot by the sheriff deputy who responded to the call.1 Upon arrival to the scene, the sheriff deputy attempted to de-escalate the situation, but failed to do so and instead shot and killed Daniels. Daniels suffered from severe PTSD and trauma, which likely developed as a result of his service in the military, and he died as a result of his mental illness.2 Daniels is one of countless individuals who struggle to understand and obey law enforcement commands due to mental illness. In many cases, an individual struggling with a mental health emergency is arrested because of his or her inability to comply with commands and ends up stuck in the criminal justice system. In other cases, such as Daniels’, the individual’s mental illness, left untreated, results in his or her death. Several programs in our community—including the Bexar County Office of Criminal Justice and the Department of Behavioral Health—recognized that there would likely be a drastically different outcome if first responders had appropriate training in mental health, as well as the ability to recognize signs of mental illness, and proposed a solution to the problem: The Specialized Multidisciplinary Alternate Response Team (“SMART”).

The Specialized Multidisciplinary Alternate Response Team:

A Group Effort for Treating Individuals Struggling with Mental Health Emergencies

By Lauren M. Miller

About six weeks after Daniels was fatally shot, the Bexar County Commissioners Court considered funding for SMART—a proposed resource designed to respond to and treat individuals who are experiencing a mental health emergency, in an effort to keep them out of our criminal justice system while also maximizing the efficiency and effectiveness of county resources. Despite the fact that one in five adults in the United States lives with mental illness, and one in twentyfive adults in the United States lives with serious mental illness (e.g., schizophrenia, bipolar disorder, major depression), mental health has historically been overlooked and brushed aside.3 Until fairly recently, the discussion of mental health and treatment of mental health disorders has arguably been stigmatized in our community. In October 2020, that changed for the San Antonio community when the Commissioners Court allotted $1.5 million to SMART.

While the SMART program is the first of its kind in Bexar County, it was created and developed using information and best practices from similar programs throughout the country.4 One of the many keys to success in the similar programs was a collaborative approach to treating individuals experiencing a mental health emergency. Similar programs in Oregon and Colorado introduced the idea of creating a team of individuals, rather than just law enforcement officers, to respond to

Photos courtesy of Bexar County.

mental-health-related calls, and the idea proved effective when put into action. As a result, the SMART program uses a similar approach and incorporates individuals from different backgrounds to respond to, de-escalate, and resolve mental health emergencies using a least restrictive approach.

Consisting of a licensed mental health professional, a peer support specialist, a qualified mental health specialist, a specially trained mental health law enforcement officer, and a paramedic, the SMART team responds to dispatch calls that are flagged as mental-health-related emergencies.5 While the mental health professional and qualified mental health specialist work together to identify and treat mental illness, the

peer support specialist contributes first-hand knowledge of what the person being treated might be going through and offers moral support to that person. These team members are complemented by a paramedic, who is available to treat the individual’s physical injuries, as well as a specially trained mental health law enforcement officer, who assists with de-escalating the situation and is also available to step in and protect the individual or team, if needed. Although each member of the team brings a unique set of skills and perspective to the situation, members working alone may not be able to fully resolve the mental health emergency; but the team, working as a group, is able to identify, treat, and offer compassion and moral support to the person struggling through a mental health crisis.

In the past, 911 dispatchers had three options when they received a call: (1) to dispatch law enforcement to the scene; (2) to dispatch the fire department to the scene; and/or (3) to dispatch paramedics to the scene. The introduction of the SMART unit to Bexar County provides a fourth option that dispatchers can use to respond to calls similar to the call made by Damian Daniels’ family. The introduction of the SMART unit to our community allows individuals experiencing a mental health emergency to receive the attention and treatment they need from a team that will address and resolve the problem efficiently and effectively. At the same time, the SMART unit relieves other first responders from having to spend time and effort responding to mental health emergency calls.

In an effort to better understand mentalhealth-related calls and the response to these calls, the Meadows Mental Health Policy Institute analyzed the circumstances surrounding mental-health-emergency calls. In the report, Meadows Mental Health Policy Institute characterized three types of mental-health-related calls: (1) Mental Health Routine calls; (2) Mental Health Disturbance calls; and (3) Mental Health in Progress calls.6 The report provides that if a subject is reported to be mentally unstable and/or has a history of mental illness, then the call is characterized as a Mental Health Routine call.7 However, if the same circumstances apply—but the subject is also uncooperative, loud, and/ or argumentative, or the reporting person requests police attention—then the call is characterized as a Mental Health Disturbance call.8 The third category, Mental Health in Progress calls, include calls that report a subject with a history of mental illness who is posing an imminent threat to himself or herself, or to others.9

The Meadows Mental Health Policy Institute report goes on to state the frequency of each type of call and provides that the most frequent calls are categorized as Mental Health Routine calls or Mental Health Disturbance calls. More specifically, from January 2019

Carola M. Davis, CFS

The SMART Team— consisting of an EMT and a mental health clinician—uses clearly marked vehicles to respond to calls involving an individual struggling with a mental health crisis. These customdesigned vehicles notify the person struggling with a mental health crisis that a specialized team is on the scene and ready to help.

Joseph CASSEB

Don PHILBIN

Wade SHELTON Thomas SMITH Hon. John SPECIA, Jr. Hon. Phylis SPEEDLIN

Dan POZZA

John BOYCE Roberto RIOS

Roger BRESNAHAN

Gary JAVORE

Hon. Catherine STONE

Hon. Karen POZZA

Kevin MICKITS

Krishna REDDY

through April 2021, the Meadows Mental Health Policy Institute reported 21,961 Mental Health Routine calls, 23,217 Mental Health Disturbance calls, and 9,754 Mental Health in Progress calls, totaling 54,932 mental-health-related calls during that time period.10 It is important to note that before the SMART program was developed, first responders were taking a significant amount of time responding to these calls because of their lack of training in mental health. For example, a mental-health-related call that might take a mental health professional one hour to address and resolve might take law enforcement officers two or three times as long, simply because the latter do not have the same knowledge and experience when it comes to dealing with mental health issues. Thus, the introduction of the SMART unit has resulted in more efficiency for all groups of first responders by allowing them to respond to calls that they are best trained to address.

The Southwest Texas Regional Advisory Council used the information provided by the Meadows Mental Health Policy Institute to develop the SMART program, as well as to expand on and improve the program. Each aspect of the program was thoughtfully developed to ensure that an individual struggling with a mental health emergency is treated in every way necessary. Less than a year after the pilot program was introduced in Bexar County, Sheriff Javier Salazar stated that it “just fell together” and “surpassed expectations.”11 As the program continues to grow and expand, those living with mental illness and their family members can find hope that the tragic story of Damian Daniels will not repeat itself. No doubt, one life lost is one too many.

Lauren M. Miller is an associate practicing Estate Planning and Probate Law at Langley & Banack, Inc. Before attending law school, Lauren obtained her Bachelor of Arts in Psychology from the University of Texas at Austin and Master of Science in Marriage and Family Therapy from Our Lady of the Lake University.

ENDNOTES

1Tiffany Huertas, Family calls for Bexar County sheriff’s resignation after viewing body cam footage of Damian Daniels’ death, KSAT, June 14, 2021, https://www.ksat. com/news/local/2021/06/14/family-of-damian-daniels-holds-news-conferenceabout-his-death/

2Justice for Damian Daniels, Justice for Damien Daniels, Mar. 19, 2020, https:// www.justicefordamian.com/.

3About Mental Health, https://www.cdc.gov/mentalhealth/learn/.

4Sep 10, 2020 Commissioners Court Budget Work Session, Bexar County, TX, https://bexarcountytx.new.swagit.com/videos/197101

5About S.M.A.R.T., Official Website https://www.bexar.org/3459/About-SMART.

6City of San Antonio First Response System Final Review Draft 2021-07-31, Aug. 1, 2021, https://www.sanantonio.gov/Portals/47/Files/meadows-report.pdf

11Max Massey, Bexar County sheriff says mental health pilot program has ‘surpassed expectations’, KSAT, July 26, 2021, https://www.ksat.com/news/local/2021/07/26/ bexar-county-sheriff-says-mental-health-pilot-program-has-surpassed-expectations/

In an effort to better understand mental-health-related calls and the response to these calls, the Meadows Mental Health Policy Institute analyzed the circumstances surrounding mental-health-emergency calls. In the report, Meadows Mental Health Policy Institute characterized three types of mental-health-related calls: (1) Mental Health Routine calls; (2) Mental Health Disturbance calls; and (3) Mental Health in Progress calls.

Operation Lone Star: A South Texas Tsunami

By Justice Beth Watkins

For the five fiscal years before the COVID-19 pandemic, the Fourth Court averaged approximately 381 criminal filings per year. Appellate filings—especially criminal filings—decreased as a result of the pandemic.

Recently, however, the Fourth Court has seen a significant increase in criminal filings, even over our pre-COVID numbers. In the three quarters from September 1, 2022, to May 31, 2023, the Fourth Court received 539 criminal filings. If that rate continues for the last quarter of the fiscal year, we expect to receive a total of 674 criminal filings in Fiscal Year 2023. That is more than 77% above our pre-COVID average of criminal filings.

After examining our docket, we can say confidently that this surge in criminal filings relates to Operation Lone Star (OLS)—the mission Governor Greg Abbott launched in March of 2021 to “devote additional law enforcement resources toward deterring illegal border crossings.” A number of state offices and agencies were asked to work together to address the corresponding increase in state felonies and misdemeanors, including the Office of Court Administration, the Texas Indigent Defense Commission, and the Border Prosecution Unit, a group of seventeen elected District Attorneys along the border who prosecute border crimes.

OLS has led to a dramatic increase in prosecutions, especially of criminal trespass charges, along the border. That, in turn, has led to substantial uptick in appellate filings. In the first three quarters of this fiscal year, the Fourth Court has received 216 criminal filings arising out of OLS. Of those filings, 157 have come from Kinney County. To put that number into perspective, from 1997 through 2017, the Fourth Court received a total of six criminal filings from Kinney County.

The burden of handling criminal appeals arising out of OLS falls disproportionately on the Fourth Court of Appeals. This is because the Fourth Court’s jurisdiction along the border includes Val Verde, Kinney, Maverick, Webb, Zapata, and Starr counties, plus many other counties in which OLS is in effect. OLS filings typically come in waves. In addition, these filings are often accompanied by motions for emergency relief— often without any notice beforehand. As a result, timely processing of this volume of filings requires a Herculean effort from our clerk’s office.

The Fourth Court has kept up with this tsunami of filings. As of May 31, 2023, the court has decided or otherwise disposed of ninetythree OLS filings. As was previously described in this column, the court issued an en banc opinion in Ex parte Dominguez Ortiz, concluding a noncitizen who was charged with criminal trespass had not presented a cognizable pretrial habeas claim. No. 04-22-00260-CR, 2023 WL 1424651, at *4–6 (Tex. App.—San Antonio Feb. 1, 2023, no pet.). Following Dominguez Ortiz, the court disposed of a handful of cases with similar issues. Since then, the court has also disposed of eighty-four original proceedings, often concluding that the mandamus relator or habeas applicant was not entitled to relief.

The parties’ arguments are not static, and as our court has decided issues, litigants have been hard at work developing new arguments in trial courtrooms across the state. As their cases make their way to the Fourth Court, and even without additional resources to handle this unprecedented surge in filings, the Fourth Court is hard at work to fulfill its mission to timely issue well-written, well-reasoned opinions in accordance with the law.

Justice Beth Watkins practiced before federal and state appellate courts for sixteen years before her election in 2018. She is Board Certified in Civil Appellate Law.

expect to receive a total of 674 criminal filings in Fiscal Year 2023. That is more than 77% above our pre-COVID average of criminal filings.

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.

Foreclosure; Unjust Enrichment.

Tarasiewicz v. PNC Bank, N.A., SA-22-CV816-XR (Rodriguez, X., Apr. 13, 2023)

The plaintiffs bought property through a special warranty deed following an HOA foreclosure sale, subject to defendant bank’s superior lien. After the plaintiffs invested over $200,000 in improvements in the home, the bank scheduled a foreclosure sale. The plaintiffs sued the bank for breach of contract, quantum meruit, unjust enrichment, and suit to quiet title. The plaintiffs were not parties to, or third-party beneficiaries of, the deed of trust, so the court dismissed their breach of contract claim with prejudice for lack of standing. Although Texas allows parties with a legal or equitable interest in property to challenge a foreclosure sale, the court refused to extend the doctrine to claims for breach of the underlying security instrument. The plaintiffs’ claim for quantum meruit failed because the plaintiffs did not perform repairs to the property for the bank’s benefit. The court dismissed the plaintiffs’ suit to quiet title with prejudice because they did not allege facts to establish a superior right to that of the bank. Indeed, the plaintiffs acknowledged that they purchased the property subject to the bank’s deed of trust. The plaintiffs were not entitled to notice of foreclosure as strangers to the deed of trust. Finally, the court dismissed the plaintiffs’ claim for unjust enrichment without prejudice. The plaintiffs spent over $200,000 to prevent the property from falling into into disrepair; foreclosure would arguably represent an unconscionable windfall to the bank; and the plaintiffs alleged the bank intentionally delayed foreclosure to receive the benefit of plaintiffs’ work. But because foreclosure had not yet occurred—and the bank had not retained the benefit of the plaintiffs’ improvements—the claim for unjust enrichment was not ripe.

Personal Jurisdiction; Transfer Venue.

Willis v. Vericel Corp., SA-23-CV-00044XR (Rodriguez, X., Apr. 14, 2023).

Vericel, a Michigan corporation with its principal place of business in Massachusetts, had its Massachusetts-based lawyer send a cease-and-desist letter to its Texas employee on the employee’s final day of work, accusing him of misappropriating and deleting confidential information belonging to Vericel and alleging that his new employment with North Carolina-based Bioventus violated his noncompete agreement. The lawyer copied Bioventus on the letter, and Bioventus immediately fired the plaintiff. The plaintiff sued Vericel for tortious interference with contract and declaratory judgment. The court denied Vericel’s motion to dismiss for lack of personal jurisdiction, finding specific jurisdiction. A company’s long-standing employment relationship with an employee in another state who works from home may be sufficient to confer personal jurisdiction. The plaintiff was residing in Texas when he was employed by Vericel and when he was hired by Bioventus. The “effects” of Vericel’s interference with that employment were felt in Texas. But the court granted Vericel’s motion to transfer the case to Massachusetts. The forum-selection clause in the plaintiff’s agreement with Vericel—in which the plaintiff consented to jurisdiction in Massachusetts “for purposes of enforcing the agreement”—did not control because the plaintiff did not file suit to enforce the agreement. Instead, the court analyzed public and private factors and determined Massachusetts to be a more convenient forum. Sources of proof regarding Vericel’s and Bioventus’ conduct are in Massachusetts and North Carolina. Texas is not home to any relevant witnesses or parties other than the plaintiff. Massachusetts could secure attendance of witnesses

through compulsory process, and it would be less costly for witnesses to attend depositions and trial on the East Coast. Finally, the Western District of Texas has a significantly higher caseload than the District of Massachusetts, and court congestion in the Western District weighed in favor of transfer.

Attorney Immunity

Vallez v. Harding, SA-22-CV-01377-JKP (Pulliam, J., Mar. 20, 2023)

A borrower whose property was foreclosed upon sued the attorneys representing the foreclosing lienholder for various causes of action, including fraud. Attorneys are generally immune from suits brought under Texas law if the action arises out of the duties involved in representing a client, and when acting as foreclosure counsel, an attorney’s conduct while performing duties in representing the client is not actionable. The attorney defendants were immune from suit because the actions supporting all the asserted causes of action arose from the attorney defendants’ and their law firm’s acts as a foreclosure counsel for an underlying lienholder. The borrower failed to allege beyond mere legal conclusions any fraudulent or wrongful action taken by the attorney defendants as foreclosure counsel. The only allegedly fraudulent act was a claim that one of the defendants misrepresented herself to be a licensed attorney and that the attorney defendants do not have a license to act as debt collectors. The court concluded that allowing the plaintiff to amend the pleadings would not cure the flaws with the complaint. The court took judicial notice of the State Bar of Texas website, which provides the licensing information for attorneys and which indicated that the defendant in question was a licensed attorney. As a matter of law, a law firm and attorneys engaged in nonjudicial foreclosures

are not debt collectors under the federal Fair Debt Collection Practices Act. Accordingly, the court granted the attorney defendants’ motion to dismiss.

Reimbursement of Expert Fees Kahlig Enters. v. Affiliated FM Ins. Co., SA20-CV-01091-XR (Rodriguez, X., Mar. 24, 2023)

The court considered the defendant’s motion pursuant to FRCP 26(b)(4) to recover expert witness fees incurred due to the plaintiff’s deposition of the defendant’s expert. Recovery of expert witness fees is ordinarily limited to statutory amounts under 28 U.S.C. §§ 1821 and 1920; however, FRCP 26(b)(4)(E)(i) independently provides a basis for recovery of expert fees incurred as part of discovery, and unless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. The defendant sought $10,738 in reimbursements related to the deposition of its expert. The court held the motion was not untimely as Local Rule CV-54 does not govern recovery of expert fees under FRCP 26(b)(4)(E)(i), and Local Rule CV-54’s fourteen-day deadline from the entry of judgment to file a bill of costs, therefore, does not apply. While the merits of the court’s grant of summary judgment to the defendant was on appeal, and a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case “involved” in the appeal, the district court remained “nonetheless free to adjudicate matters that are not involved in that appeal.” The question of reimbursement of expert fees was not on appeal, and the defendant would have been entitled to recover those costs regardless of the success on its summary judgment because the plaintiff sought discovery concerning the defendant’s expert opinions. Therefore, the pending appeal did not divest the court of jurisdiction to consider the motion. The court agreed the hours claimed in the motion for costs were excessive and unreasonable. Recognizing that a request for reimbursement of two hours of preparation time for every hour of deposition time in a complex patent case has been held unreasonable, and that preparation of defendant’s experts by defendant’s counsel as “more akin to trial preparation than to discovery” and benefitted the defendant, not the plaintiff, the court held that reimbursement of one

hour of preparation time for every hour spent in the deposition was reasonable here. Accordingly, the court awarded fees for 3.5 hours of preparation time, which was the same amount of time spent deposing defendant’s expert. The request for $73 in other costs was denied because it was unsupported by any explanation. The court thus awarded $2,765.

Leave to Amend Macias v. Bexar Cnty., SA-21-CV-00193JKP (Pulliam, J., Apr. 25, 2023)

The magistrate judge issued a report and recommendation to deny the plaintiffs’ motion for leave to amend their complaint and strike their prematurely filed amended complaint. The district judge held that these were non-dispositive matters, under which a magistrate judge may issue an order, and treated plaintiffs’ objections to the report and recommendation as an appeal subject to “clearly erroneous” review, although also conducting de novo review and reaching same result. The plaintiffs complained that the magistrate judge incorrectly analyzed the motion for leave to amend pursuant to Rule 16 rather than the more liberal standard of Rule 15, which provides that “leave to amend should be freely given.” When a motion for leave is filed after the scheduling order deadline, Rule 16 governs and requires demonstration of

good cause to modify the scheduling order. Only after good cause is shown will Rule 15 apply. The magistrate judge had applied the correct standard. The district court denied the plaintiffs’ motion for leave to amend and directed the clerk to strike the prematurely filed amended complaint.

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

Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC. Jeffrie B. Lewis is Assistant General Counsel with Zachry Group.