San Antonio Lawyer, November/December 2021

® Official Publication of the San Antonio Bar Association

Resilience and Grit

Retired Chief Justice Catherine Stone

November–December 2021

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contents ON THE COVER 6 Resilience and Grit: Retired Chief Justice Catherine Stone

By Sara Dysart

FEATURES 10 These Three Words

By ileta! A. Sumner

16 Local Legal Pros Support Entrepreneurs’ Dreams

By Carolyn Wheat

22 Ensuring a Fair Cross-Section of the Community in the Western District of Texas

United States District Judge Xavier Rodriguez

6 Retired Chief Justice Catherine Stone photographed for San Antonio Lawyer by Mewborne Photography

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27 Fourth Court Update

19 San Antonio Bar Foundation Gala 2021

By Justice Luz Elena D. Chapa

28 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

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Resilience and Grit

Retired Chief Justice Catherine Stone

By Sara Dysart

Cover and article photography by Mewborne Photography shot on location at the Hopscotch art gallery in San Antonio.

I

f you were raised by a single mother, realized that education was the key to a different life, and took friend and mentor’s advice to “leave while they still love you,” then you may have a lot in common with retired Chief Justice Catherine Stone. Although she reached the highest echelons of our profession, Catherine and her life story are thoroughly relatable.

After retiring from the appellate bench in 2014, Chief Justice Stone joined the law firm of Langley & Banack, Inc., where she leads the Appellate Practice Group and the Alternative Dispute Resolution Practice Group. She offers full appellate services, including appellate and trial briefing and strategy, oral arguments, brief editing, and review.

She has also leveraged her decades of judicial service in her Alternative

Dispute Resolution Practice, providing valuable insight to litigants and counsel in mediation and arbitration settings.

How did this distinguished jurist and advocate get from an early childhood in Biddeford, Maine, to San Antonio, Texas, to become the Chief Justice of the Fourth Court of Appeals and now one of the most acclaimed Texas appellate attorneys? Resilience and grit!

When Catherine Stone and I started St. Mary’s University School of Law in the fall of 1978, approximately one-third of our law school class was women. Looking back on our experiences, they seem to have been in tune with the mantra, “We have come a long way, baby!” followed by the refrain, “We have much further to go!” Catherine recalls that, in the late 1970s, women law students and lawyers were treated differently November–December 2021

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way for [her] and inspired [her] to dream big.” For Catherine, those influences culminated at Assumption College (now University), where “women were expected to take on a full role in society.”

The cultural shifts that took place in the mid-twentieth century are not mere abstractions. “I think my mother’s life could have been different had she had the benefit of a more open society for women,” Catherine said, reflecting on the relative openness she experienced compared to her mother’s generation, and drawing tears from this author. Catherine’s story is one of success, but even when we celebrate it, we should not forget about the “uneven playing field” that many generations of women experienced. For many of us, including Catherine, witnessing the struggles of our mothers and extended female family members encouraged us to dream big.

An Education in Foreign Affairs

from their male peers. But, even in the early years of her practice, “women were speaking up; men were learning; and social norms were changing.” While our profession has made great strides toward equity, Catherine remains distressed by what she perceives as “the misogyny that motivates legislation and public discourse,” and she is “ready for the dialogue to change at a very early age so that boys and girls are not in competition for who is the better, stronger, smarter human being.”

While we cheer the advances made by women lawyers of our generation and those that followed, we recognize the remaining hurdles. These sentiments are perhaps best conveyed by Supreme Court Justice Ruth Bader Ginsburg’s quip that there will be enough female justices on the Supreme Court “when there are nine!” With grit, resilience, and inspiration from trailblazing women like Catherine, we are on the right path.

Her Mother’s Life Could Have Been Different Catherine faced many challenges before becoming a lawyer. She was the second oldest of five sisters, born when her mother was only nineteen years old. Catherine describes her childhood as “chaotic and complicated.” The first in her family to go to college, Catherine did not have a lot of role models. Nevertheless, she is grateful for her grandmothers and aunts, “who rolled up their sleeves and got the job done, whatever the job was.” They instilled in her a strong work ethic while “the women libbers of the 1960s and early 1970s . . . paved the 6 San Antonio Lawyer® | sabar.org

By second or third grade, young Catherine found refuge in school.

By junior high school, she realized that education was her “key to a different life.” She liked politics, history, reading, and logic—all a good fit for law school but not within the realm of possibilities she imagined for herself. Catherine earned a scholarship to Assumption College, where she studied foreign affairs.

Catherine’s senior year in college, she started what she calls her own “foreign affair.” A graduate student from Dallas named Tom Stone entered the picture. Catherine and her friends called him “Tex.” Catherine, having resided in the Northeast her entire life, made Tex her first foreign affair and Texas her “first foreign affair assignment.”

Catherine and Tom married in Massachusetts after she graduated from college and flew to Dallas the very next day, her twenty-third birthday.

They have lived in Texas ever since and will celebrate their forty-fifth wedding anniversary this year.

Catherine and Tom agreed that the next educational opportunity would be Catherine’s because Tom had his master’s degree. Catherine opted for law school over doctoral studies in political philosophy because she thought “lawyering would be more secure than academia.” Her first choice of law schools was St. Mary’s University because she “wanted to continue the Catholic social justice education [she] had received at Assumption.”

Catherine and Tom lived in Beaumont for two years and then moved to San Antonio so that she could attend St. Mary’s University School of Law. After she graduated from law school, Tom commuted to the University of Texas to obtain a Ph.D. in clinical psychology. Dr. Stone has maintained a private clinical practice for more years than he cares to admit.

Catherine and Tom have three sons—Liam, Nathaniel, and Jacob— who are adults and have their own successful lives. Catherine and Tom have had a household of pets, especially dogs, starting with a black LabRhodesian Ridgeback mix. Catherine named him “Yankee” to make it clear to her in-laws that their son had married a “strong-willed woman from Maine.” The in-laws’ dog was named “Rebel.”

Life as a Law Student and Mother Catherine remembers law school as “a great experience, if you can actually put ‘law school’ and ‘great’ in the same sentence.” She started law school in 1978, pregnant with their oldest son, Liam, who was born shortly after first semester finals. She took a year off, returning to law school the second semester of the following year. She wrote one year for the Law Journal and two years for the Legal Research Board.

She was “not super social as far as hanging out or going to Fatso’s after classes” because she “had a kiddo at home,” but she liked her professors and classmates.

Top: Catherine Stone’s family in 2019 in Maine. Son Jacob; daughter-in-law Melissa Mayorga-Stone; son Liam with grandson Henry on his shoulders; husband Tom; Catherine Stone; son Nathaniel and daughter-in-law Shreya Sethi-Stone; Judge Stone and husband; Judge Stone with friend and fellow attorney, Gayla Corley.

Bottom: Hon. Catherine Stone, with (left to right) Judge Grace Uzomba, County Court 2; Hon. Sandee Bryan Marion, Chief Justice (2014-2020) and Justice (2002-2014), 4th Court of Appeals; Hon. Alma Lopez, Chief Justice (2002-2008) and Justice (1993-2002), 4th Court of Appeals; Catherine in 2019, visiting a Maine lighthouse that George Washington designed in 1787; Catherine’s Official Portrait, taken in 2014.

Catherine’s success in law school—despite the additional challenge of being a new mother—contributed to changing attitudes about the compatibility of family and professional responsibilities. She recalls: Many years ago, I heard someone say that women walk around with the jigsaw puzzle of their family constantly in their brain, and they are always moving the pieces to make them fit best for the moment. That is true whether your family is a spouse and kids, siblings and parents, or yourself and your pet. I think women leaders have this capability to move the pieces around whether it is their work family or their home family.

Life as a Young Lawyer and Mother After graduating from St. Mary’s, Catherine served as a briefing attorney for the Fourth Court of Appeals for a year. She then joined the law firm of Watkins, Mireles, Brock & Barrientos, where she worked with her first mentor Phil Watkins, whom she describes as “crazy smart.” She learned a lot from the lawyers at this firm and is grateful for the experience to this day.

Catherine remembers especially fondly working with our late District Judge Andy Mireles, who died way too young. The then-attorney Andy Mireles would give her a “hard time” about leaving the law office at 5:30 p.m. each day. Knowing that she was going home to her young family, he would make jests like, “This isn’t Kelly Field. Why are you leaving so early?” Catherine took his comments in good humor, noting that, in later

years, he publicly commended her “for putting family first.” She concludes, warmly, “I know Andy could be gruff on the bench, but he truly cared about others and was more bark than bite.”

After eight years with Watkins, Mireles, Brock & Barrientos, Catherine followed her dream and started her own appellate practice, where she was able to keep hours more conducive to the lifestyle she desired. She continued her solo practice for three years until she was appointed to Judge Fred Biery’s place on the Fourth Court of Appeals, following his appointment to the United States District Court.

An Adventure in Innocence—Running for the Fourth Court of Appeals Following her appointment, Catherine was quickly initiated into the complexities of judicial campaigning because she immediately had to run to retain her seat. In 1994, five of the Fourth Court justices, including the chief justice, were up for election, and Catherine spent a lot of time campaigning with Alma Lopez and Phil Hardberger. The campaign trail, stretching through thirty-two counties in south Texas, was the genesis of their long-lasting friendships. Justice Hardberger and Justice Stone “were sworn in together in April 1994 at a big shindig held outdoors at a parking lot that is now the site of the Elizondo Tower.”

Catherine was re-elected in 2000 and 2006. In 2008, when she ran for Chief Justice, following in the footsteps of her campaign buddies former Chief Justice Hardberger and former Chief Justice Lopez, it “was November–December 2021

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more of a solo event.” By then, Justice Stone knew and loved so many citizens throughout the Fourth Court Judicial District that she was “pretty comfortable with the campaign.” The differences in communities were pronounced—with tacos and enchiladas served to the sound of mariachi bands in Laredo and Rio Grande City, and sausage and sauerkraut served to the sound of “umpapa” bands in Fredericksburg and Kerrville.

To retired Chief Justice Stone, her “years on the bench felt like a superb gift,” during which she “made many friends among the voters in the thirty-two counties and worked with incredibly smart and fun justices.” After twenty-one years on the Fourth Court of Appeals, including serving as Chief Justice during the last six years, she followed her friend and mentor Jane Macon’s advice to “leave while they still love you.” When it came to the question of what to do next, Macon had more sage advice: “Do what you are good at, practice appellate law.”

Changes in the Practice of Law In her work today, former Chief Justice Stone recognizes that the practice of law changed during her decades on the bench, starting with the impacts of the internet and cell phones. The expectations of everyone involved in litigation are on a 24-7 cycle. She hears older attorneys bemoaning a lack of work ethic and civility among younger lawyers, but she is optimistic in that she suspects “lawyers learn to be more patient and civil after they have had a few years in the trenches and realize that the lawyer they are being rude to will be with them on another case down the road.”

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Chief Justice Stone has received numerous accolades and served with many bar and community associations, including as Chair of the Texas Council of Chief Justices (2011-13). Having observed many leaders and served in many leadership positions, she has distilled the essence of leadership in a manner that applies in any industry or circumstance.

Catherine defines leadership as “the art or practice of having an overall vision of movement toward a desired goal; a willingness to receive, discuss, and implement ideas from anyone and everyone on the team; and a realization that each success is not about the leader, but about every person involved in the process.”

Perhaps her most noteworthy appointment came in 2018, when Catherine was tapped to chair a commission that examined the sexual abuse cases against priests in the Archdiocese of San Antonio. The results of this commission are published, and its recommendations are being addressed. She was honored to lead the commission, not only because of her personal experience as a survivor of child sex abuse, but also because she was aware of the extent and gravity of this problem in our community, having reviewed hundreds of trials involving child sexual abuse.1 She felt an obligation to serve on the commission so that she could “be part of the solution.”2 Catherine’s former colleagues on the Fourth Court agreed that her character made her particularly qualified for this role. Former Chief Justice Hardberger expressed confidence that Catherine would “not mince words,” whatever the evidence showed, and former Justice Phyllis Speedlin echoed that Catherine’s sole concern was “getting it right.”3 Sandee Bryan Marion, who succeeded Catherine as Chief Justice, emphasized that Catherine’s empathy rendered her “so well-suited and prepared for this task” because she understood “the fallacies of humans.”4 Former Chief Justice Marion noted that while former Chief Justice Stone’s experience “clearly shaped her,” it had not made her resentful.5 With true resilience, Catherine “has moved past it and has come out the other side.”6

Resilience and Grit Catherine Stone’s “chaotic and complicated” childhood could have led to an adulthood of limited choices and opportunities, similar to her mother’s experience. But Catherine’s resilience and grit allowed her to forge a different path and demonstrate that one’s early life experiences do not necessarily dictate the future. Our community is greatly benefitted by this amazing and inspirational woman, wife, mother, lawyer, jurist, advocate, and community leader. How lucky we are that the bright young woman from Biddeford, Maine, fell in love with a Texan and chose to build her life and career in San Antonio.

Sara E. Dysart, is a solo practitioner Board Certified in Commercial Real Estate Law. She earned her J.D. from St. Mary’s University School of Law in 1981.

ENDNOTES Elaine Ayala, Judge Stone called uniquely prepared to lead review of clergy abuse in San Antonio Archdiocese, San Antonio Express-News (October 15, 2018).

2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 1

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These Three Words Author’s Preamble: Generally, it is the goal of an expository writer to give enough details on a topic, present the facts, and let the reader come to her own conclusion. However, as you may know, or may come to see, this special topic is viewed very differently given one’s frame of reference. Therefore, I openly admit, I am very biased. For the majority of my thirty-year marriage, I have lived with three black males under my roof.

When my younger son was 18, a police car turned on its spiraling lights, beckoning him to pull over.

Rather than stop, though, since he was six blocks from home, my son maintained his speed but continued to drive to our home. Upon my son’s arriving home, my

Black Lives Matter Justice for All. Throughout the existence of the United States of America, and even before this land was so designated, the presence of black people on this soil has accompanied friction and contradiction. As their use within this piece suggests, there have been many three-word phrases that describe and proscribe life and the emotions connected with it since “We the People” was written by putting quill to parchment in the 18th century. Yet in the 21st century, in hindsight, we know that those three words did not mean ALL people. Perhaps if they had, we would 10 San Antonio Lawyer® | sabar.org

by ileta! A. Sumner

husband and a minimum of seven of our neighbors stepped outside to assess the situation. Thankfully, everything was resolved peacefully.

Nevertheless, a mere six months later, a similar occurrence took place down the road in Schertz, Texas, and instead of a mannerly conversation like that among the police, my son, and my husband, something else happened. That 18-year-old was tasered for failure to follow a police command; a large woman officer kneed the “adult” in the back as he screamed in pain, cradled in the fetal position, whimpering for his father all the while.

The incident made the national news. There but for the Grace of God . . . .

Hence, I am not only biased, but I am extremely moved by this topic. It is personal and grabs me emotionally. Thus, it has been incredibly difficult to research and has taken an extremely long time for me to put pen to paper, so to speak. While it is not my intention to persuade anyone to adopt my viewpoint, I do hope to educate my readers about how this topic can be viewed so differently by people who may even have a lot in common. At the very least, I hope to enlighten our community about why this topic has moved the world to action, and it is my hope that this series of articles introduces at least one new fact to you, the readers, in this divided country, for:

not be experiencing the polarizing effect that the term “Black Lives Matter” elicits among many Americans. Rarely have three words universally caused as much division and derision while being uplifting and a catalyst for change. Consequently, no three-word phrase seems to have been so misunderstood.

Black Lives Matter. These three words should not have to be said. Nonetheless, in 2021 they must be said, for nearly daily news breaks about another person of color being shockingly beaten—or even killed—in an unbelievable manner. As a result, these occurrences have had a radically adverse effect on the black community.

On May 25, 2020, something changed.

A 17-year-old-girl named Darnella Frazier filmed an almost ten-minute video of a thenunknown police officer, Derek Chauvin, as he knelt, not in prayer, but in what appeared to be the exhibition of pure hatred, until his suspect, George Floyd, whispered his last utterance.

The world watched it in abject shock. With the Floyd case, the scab was ripped off the wound of racism, and many were reminded of the anomaly that those who have fought and died for national rights in every war since the American Revolution have ironically struggled to obtain and retain these same rights for their own sector of the population.

However, if the philosophy of George Santayana (1863–1952) is indeed true, that “those who cannot remember the past are condemned to repeat it,” then to understand the Floyd case and the plethora of incidents involving brutal actions of law enforcement that could be caused by systemic racism, one should first look back at the unique way some of these patterns began.

First: The Backstory We the People. From the very beginning of the Preamble to the Constitution of the United States of America, those three words presented a paradox for the Founding Fathers. First of all, “people” at that time in our history automatically excluded women.

It also excluded indigenous populations and black people. Worse yet, it demoted the black community brought from Africa and their heirs to the status of chattel.

The reasoning for this subordination was to resolve the controversial issue of slavery in service of the larger goal of securing unity for the independence of the United States. The larger Northern states wanted representation in the legislative branch to be based on population.

However, there was friction over counting slaves as “people,” for it would give smaller Southern states a boost in their census numbers. On the other hand, while the smaller Southern states could appreciate the numerical bump in the numbers of people representing them, counting enslaved populations as “people” was problematic because the first Africans were brought to this land solely for the purpose of servitude. They were considered as nothing more than the shipment of chattel; bought, sold, and traded not unlike other pieces of property.

Therefore, nowhere within the documents that laid the foundation of this country does the word “slavery” appear, despite the fact that the very existence of slavery violated the ideal of liberty that was central to the American Revolution.

Likewise, when referring to the residents of this country, the Continental Congress purposefully deleted the word “slave” from the final version of the Declaration of Independence and the unamended Constitution.

Ultimately, in 1787, the framers added the Three-fifths Clause to the Constitution (which Clause would later be repealed in 1868 by the Fourteenth Amendment). The Three-fifths Clause defined “Persons” as the “whole number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, [and] threefifths of all other Persons.” Under the Clause, which was the result of a compromise among the framers, only three-fifths of each state’s

enslaved population counted toward the state’s total population for purpose of apportioning the House of Representatives. Even though an enslaved person was considered three-fifths of a person for counting a state’s representation, no such person could vote.

Whether a black person was seen as less than a whole person, or if the black population was considered property, they were not accorded any of the rights that “persons” (i.e., white men) automatically received under

either the Declaration of Independence or the original Constitution. Thus, from before the time that our nation began, black people have been considered “less than,” and have been climbing the incline to parity seemingly on a treadmill that allows some still to view African Americans as a race that has yet to catch up.

Protect and Serve. The goal of law enforcement to “protect and serve” the community it serves is an oath taken by every level of policing in the United States.

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Sir Robert Peel, who served as prime minister in England during 1834-35 and 1841-46, established the first major organized police department after passing of the Police Bill in 1828. American policing can trace its roots back to English policing when centralized municipal police departments began to form in the early 19th century based on the Peelian model. But early origins of American law enforcement were actually born out of a need to police enslaved Africans, control the behavior of black people, and protect the financial interests of their enslavers.

The essence of what would ultimately become the basis of American policing can be traced back to when the very first slave ship, a Dutch Man-of-War vessel, landed in Point Comfort,

Virginia, in 1619. As a matter of fact, the first documentation of deaths of persons of African descent at the hands of law enforcement can be traced back to that year.

Enslavers co-opted Barbadian slave laws (that were originally set up by the British to justify the practice of slavery and legalize the planters’ inhumane treatment of their enslaved Africans) into a colonial version of Slave Codes, beginning in the mid-1660s. Instituted in both Virginia and nearby Maryland, under these Slave Codes, the cargo that had been “persons” in their homeland were now no more than animals and, it follows, could not be accorded “human” rights. As property, enslaved people could not engage in activities that their white enslavers did.

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More importantly, the the codes justified and permitted punishment for what the enslavers deemed unacceptable behavior by enslaved Africans. The underlying rationale for this manner of “protection” was that, ultimately, strict Slave Codes would save white lives.

As populations of enslaved people increased to work the expanding landscape of, and dependence upon, cash crops such as tobacco and cotton, white Southerners formed Slave Patrols. Beginning in 1704, these patrols (referred to as “paddy rollers” by black workers) were first developed in South Carolina and spread to Virginia (1727), North Carolina and Tennessee (1753), Georgia (1757), and by the time John Adams was President in 1800, Slave Patrols had dispersed to every slave state.

Historians believe the Slave Patrols lay at the roots of this nation’s violent and racist behavior toward black Americans. These patrols were, at their creation, a volunteer vigilante force that was charged with hunting runaway slaves and white people who assisted enslaved people escaping from the plantations.

In addition, they were tasked with suppressing rebellions and crushing potential uprisings that could be mounted by enslaved Africans and those of African descent fairly easily (theoretically) for their numbers certainly surpassed those of their enslavers.

Therefore, the Slave Patrols worked only under cover of night, riding from plantation to plantation, stopping black people, forcibly entering cabins without warrants or permission, and searching homes regardless of race, whipping blacks for any or no reason, leaving everlasting welts on their bodies or beating them until the skin peeled away and exposed bloody muscles underneath.

Furthermore, they would kill enslaved people who did not possess a pass from their enslavers (and many who did) or for the slightest alleged provocation, instilling fear and spreading terror throughout the black population. It was not unusual for one or more black family members to be whisked away during the night, never to be seen again. Even worse, many would be dragged away while working, going to or from work, or even in the midst of worship, only to be strung and lynched from enormous trees, often in a highly populated location where onlookers, many with picnic baskets and children in tow, would be provided that afternoon’s entertainment by watching as the black person(s) were lynched.

This reassured the race in power that their version of law enforcement was reinforcing that population’s dominance while instilling holy terror in the lives of the enslaved.

For each body that could be seen swaying in the wind until a family member or some kind soul could surreptitiously remove and bury the carcass, there could have been a minimum of fifty who were never found.

The takeaway from these Slave Patrols is that they were race-oriented instead of being raceneutral, for they were not designed to protect public safety but, like the Slave Codes from which they sprung, to protect white wealth and maintain the economic and social status quo, and their practices influenced policing for decades to come.

immigrant who posed no threat to an arresting officer was, nonetheless, killed by a New York City officer who was carrying his personal gun.

After the officer was exonerated, departmentissued weapons became the norm.

In the meantime, what had begun as a group of loosely connected colonies in the 17th century, had become by the late 18th century a formal country with rights under the purview of the individual states along with allegiance to, and protection by, the federal government as a whole. Those separate units became the United States of America. As such, the federal government began to make laws that pertained to all residents of the nation.

While the Southern states were enacting their Slave Codes, some individual Northern states created laws mandating that those who escaped enslavement be sent back to their former residence in the South. Likewise, in 1793, the federal government entered the fray by authorizing the return of such escapees with Fugitive Slave Laws. By 1850, the Fugitive Slave Laws expanded to include denying blacks the right to trial and the right to testify in their own defense, literally making them mute in a courtroom before a jury—not of their peers— but consisting only of white men.

After the Southern states seceded from the United States and the Civil War broke out, the announcement of the Emancipation Proclamation along with the passage of the Thirteenth Amendment signaled to the South that they could be in for a drastic change of lifestyle if they were to lose the Civil War. When the Civil War ended, with the South indeed losing, the Slave Patrols were formally disbanded. At long last, black people were given the freedom to travel, work, live and thrive in the manner of the ruling class, at least in theory. While black people did make some strides during Reconstruction, the concept that they were an “undesirable” group of heathens continued to hinder most of them, as the former Confederate states sought creative ways to constrain them geographically so that they remained the crux of the Southern workforce.

Then there were the Black Codes. These were a separate set of laws—some written, most simply “known”—that managed to govern the black population as if it lived in a different country. Some of the Black Codes were unwritten rules. For instance, black persons were prohibited from referring to their white employers, counterparts, or even sharecroppers—who may have been poorer

One Nation, Indivisible As the size and number of plantations continued to grow, Slave Patrols were no longer useful. Starting in Boston in 1838, centralized police departments were created in larger cities, followed by New York City and Albany (1844), Chicago, Philadelphia, Newark, and Baltimore (1851). In their infancy, police departments were more focused on responding to disorder than stopping crime. It follows, then, that police officers were expected to control the “dangerous underclass,” which included the poor, immigrants, and especially black people.

As with the officers of England, American police officers at that time were unarmed.

However, in 1858, an unarmed Irish KFG21_CS_005_SA Lawyer Ad September_4o9x4o9_PR.indd 1

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Policing was used as a means of social control, once again protecting the interests of the ruling class. Fear was the overriding emotion instilled throughout the community.

The Black Codes ushered the era of Jim Crow laws into the lives of a majority of the black community. These Jim Crow laws replaced the Black Codes after Reconstruction and solidified a segregated America that was legitimized by the United States Supreme Court in the infamous 1896 decision in Plessy v. Ferguson. Plessy was the law of the land until 1954, when it was reversed by Brown v.

Board of Education, but many Jim Crow laws continued in practice through the Civil Rights Movement of the 1960s.

Who’s Jim Crow? than them—by their given names, always calling them “Mr.,” “Miss,” or “Ma’am,” while refraining from looking the white person directly in his or her eyes. In turn, black persons were always called by their first names, a daily reminder of their inferiority.

Other Black Codes were mostly unreasonable demands. For example, if a black person were to drink from a “White’s Only” water fountain, he or she could be detained by the police indefinitely; or if an African American were to dip her toe in a public swimming pool, the facility would have to be drained, cleaned, and refilled while the violator could be incarcerated or worse.

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The Jim Crow laws that were pervasive throughout the South and were enforced impudently by the police force as well as the everyday citizen had to have been created by some well-known politician named Jim Crow, right? Well, somewhat.

The person was indeed famous. However, Jim Crow was a fictional, dimwitted, exaggerated caricature of a black man who was played by the white actor Thomas Dartmouth “Daddy” Rice in the early 1830s. Rice was said to have developed the character, which he first performed between the acts of a play called The Kentucky Rifle, after watching an elderly black man crooning a tune called “Jump Jim Crow” in Louisville, Kentucky. Later, Rice appropriated the Jim Crow persona into a minstrel act, in which he wore rags and used burnt cork on his face (a thickened material that was darker than any natural pigmentation would ever appear) to give widespread acceptance of “black-face.” In black-face, Rice would perform an off-kilter dance with an outrageous dialect. Rice’s characterization of a black man fed on, and encouraged, outlandish stereotypes of the black culture, all the while heightening fascination with black life. As audiences became enthralled with the off-putting fictional character, “Jim Crow” became a derogatory euphemism for all black people. Though delight for the demeaning show finally began to die, an entire way of life was born in its wake.

The resulting Jim Crow laws were established to widely institute the notion that blacks and their lives were inherently inferior. Jim Crow laws also gave legitimacy to, and rationalization for, denying blacks equality and access to the simple necessities of life; and such laws ruled over absolutely every part of black culture. This happened with the consent and participation of law enforcement, to force black people to remain subservient to the white Southern traditional lifestyle.

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Separate but Equal Jim Crow laws (circa 1880–1965) overwhelmed black life in its entirety. They ushered in yet another era of white supremacy based on erroneous theories that those taken from Africa and their descendants where naturally less than—less than human, less than deserving, less than others who were given an opportunity for improvement, less than any and every white person they would ever encounter.

It is imperative to note that even though Jim Crow was the law of the Southern land, the majority of Americans, as well as the rest of the world, was ignorant of the heartless restrictions put on the entire black community in the South. Blacks were forced to live in substandard housing and to work in demeaning places of employment for almost no pay. Blacks had access only to certain businesses, or they were forced to receive limited services from white establishments (i.e., receive minimum service from the backdoor of a white restaurant). Even then, they were often subject to having those few rights snatched away at the whim of any white person. As in past centuries, “modern” policing was used to keep black people in their place according to the mores of the times.

Police oversaw literacy tests or other inane methods of disenfranchising black men from exercising their relatively new right to vote.

Likewise, the Jim Crow laws banned interracial relationships to prevent the “bastardization” of the white race. Hence, most Southern blacks were relegated to dilapidated parts of towns and cities and were physically removed from the premises if they attempted to move into a white part of a state.

Moreover, as before, many levels of law enforcement and the judiciary not only allowed this conduct to occur, but also backed it with force. Policing was used as a means of social control, once again protecting the interests of the ruling class. Fear was the overriding emotion instilled throughout the community.

This is not to imply that no segregation existed outside of what were once the Confederate states. Blacks were only allowed to attend certain schools, churches, libraries, restaurants, dime stores, salons, and to separate sections of movie theaters (often being forced to use a different entrance than “normal” people) in many cities across Northern, Midwest, and Eastern states as well.

Still, while the police were trained to enforce the aura of superiority in those locations, as in the South, their tactics did not seem to be quite as vicious as the law authorities of the

South. Historians believe that the ability of members of the police force to kill at will with any provocation—or with no provocation at all—remains an underlying impetus for how police have continued to react to potential suspects well into the 21st century.

To be continued . . .

What effect did the beginnings of policing have on 21st century interactions between law enforcement and black men, and why did Black Lives Matter become involved? Why does the Black Lives Matter agenda include voting reform? The answer to these and other nagging questions will be considered in upcoming issues of San Antonio Lawyer®, continuing the series: These Three Words. ileta A. Sumner, esq. is a former President of the Bexar County Women’s Bar (2002) and the original General Counsel and creator of the legal department of the Battered Women’s and Children Shelter. She has been disabled since 2006. She can be reached at (210) 421-2877 (cell), litig8rij@aol.com.

SELECTED BIBLIOGRAPHY Internet Encyclopedia of Philosophy | Santayana, George, https://iep.utm.edu/santayan/.

Editors of Encyclopedia Britannica, Three-fifths compromise, https://www.britannica.com/topic/threefifths-compromise.

Michael A. Robinson, Black Bodies on the Ground: Policing Disparities in the African American Community— An Analysis of Newsprint From January 1, 2015, Through December 31, 2015, SAGE Journals | Journal of Black Studies, (April 7, 2017), https://journals.sagepub.com/doi/full/10.1177/0021934717702134.

Nick Chiles, New Report Compiles A Devastating Count of Nearly 4,000 Lynchings of Black People in the US, Showing This Form of White Terrorism Had Profound Impact on American History, Atlanta Black Star, (February 10, 2015), https://atlantablackstar. com/2015/02/10/new-report-compiles-devastatingcount-nearly-4000-lynchings-Black-people-usshowing-form-white-terrorism-profound-impactamerican-history/.

Wenei Philimon, Not Just George Floyd: Police departments have 400-year history of racism, USA Today, (June 7, 2020, 3:12 a.m.), https://www.usatoday. com/story/news/nation/2020/06/07/black-livesmatters-police-departments-have-long-history-racism/3128167001/.

Sir Robert Peel, https://biography.yourdictionary. com/sir-robert-peel.

Connie Hassett-Walker, The racist roots of American policing: From slave patrols to traffic stops, The Conversation, (June 2, 2020), https://theconversation.com/ the-racist-roots-of-american-policing-from-slavepatrols-to-traffic-stops-112816.

Connie Hassett-Walker, How You Start is How You Finish? The Slave Patrol and Jim Crow Origins of Policing, American Bar Association, (January 11, 2021), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rightsreimagining-policing/how-you-start-is-how-youfinish/.

Evan Andrews, Was Jim Crow a Real Person? The term traces back to a derogatory minstrel routine from the 1830s, History, (January 29, 2014, updated April 20, 2021), https://www.history.com/news/was-jimcrow-a-real-person.

Jeff Wallenfeldt, What is the Origin of the Term “Jim Crow”?, Britannica, https://www.britannica.com/ story/what-is-the-origin-of-the-term-jim-crow.

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San Antonio Lawyer® 15

Local Legal Pros Support San Antonio

reams D reams

Entrepreneurs’

By Carolyn Wheat

Article photography by Courtney Warden and Geekdom

Participants and volunteers discuss common issues like business structure and corporate formation at one of the early Geekdom legal clinics in 2014. Photos courtesy of Geekdom.

I

f you are not versed in the law, the legal process can be intimidating. As a result, the legal side of starting a new business can be both a barrier and a dreary requirement. That is why a dedicated team of San Antonio lawyers and paralegals are volunteering their time to give entrepreneurs the resources and confidence to take the next step in building their businesses.

Geekdom, which is San Antonio’s premier collaborative startup community, along with DJ Law Partners and San Antonio Startup Week, host quarterly, no-cost legal clinics for entrepreneurs. The group’s effort is part of a goal to help 100 companies incorporate in 2021 and reinforces Geekdom’s goal to launch 500 startups, with at least 75% calling San Antonio home, in the next ten years. The 100-company goal was met in October 2021, 16 San Antonio Lawyer® | sabar.org

during a legal clinic organized as part of San Antonio Startup Week.

Did you say “free”?

“The idea behind the clinics is to help people who are interested in starting a business get access to lawyers who really know how to start a business and are not just spitting out documents like a legal vending machine,” explains attorney David Jones of DJ Law Partners. Anyone in the San Antonio community can get access to meaningful consultation with lawyers who help them decide whether they should create a formal business entity like an LLC, or not, and the benefits and obligations that come with doing so. Jones says many entrepreneurs do not know where to begin to find the right kind of lawyer to help them.

Geekdom is located downtown, in the heart of the city’s Houston Street Tech district, and according to CEO Charles Woodin, the company is designed “to support entrepreneurs as they launch their ventures” and works “to keep and help grow those new businesses in San Antonio.” As Woodin explains, “Most early-stage startups are focused on their product or service, not on the necessary legal work that needs to happen to protect them. We’re grateful to the attorneys and paralegals who can ensure these entrepreneurs get off to the right start.”

The clinics, which have been offered occasionally since 2014, have two parts. The first session consists of a one-hour questionand-answer session and presentation that includes legal, accounting and tax issues, and the implications of combining those in starting an LLC. A second session provides

one-on-one consultation with an attorney and the opportunity to ask questions. Jones’ firm, DJ Law Partners, will file the LLC paperwork with the State of Texas and send participants an email with their certificates of formation and of filing. The attorneys will also provide links to secure a tax ID number and register their company with the appropriate government offices. The LLC filing fee is paid

by San Antonio Startup Week, and all lawyers and paralegals volunteer their services. Jones estimates the value of both sessions, including the filing fees, is approximately $1,000 for each person who participates.

“It’s a game changer,” says Zari Chipman, who provides paralegal services for the clinics.

“We’ve helped people who may not be able to afford the cost of legal services and filing. Or they think it’s too hard, or they don’t have the time.” Daria Galbraith, who also volunteers paralegal services, agrees. “Legal consultations are expensive and often intimidating.” She says the team of lawyers Jones assembles for the clinics is comprised of a variety of specialties, so the entrepreneurs attending are made aware of resources and contacts available to them. “This allows people to locate and avoid the pitfalls of starting a new business such as pursuing the wrong entity type for their business.”

Working smarter, not harder In the first three legal clinics held in 2021, more than eighty companies were incorporated.

Belinda Medellin’s BMyVillage was one of them. A former teacher at CAST Tech High School, Medellin knew she wanted to start her own business so that she could make a bigger impact in education and help more students.

She was familiar with Geekdom because of its relationship with CAST Tech and so became a member. Medellin attended a startup weekend where she first learned about the legal clinic.

“I feel like I could have figured it out, scoured the internet, and seen what it took to get my business up and running, but since this resource was already there, it made sense to work smarter and not harder.” Medellin missed the part about the filing fee being covered and was “flabbergasted, especially because of the caliber of their legal team.” Her BMyVillage app connects highly successful teachers and matches them with motivated teachers who want one-to-one coaching or training in their teaching field. As a mom who understands trying to balance teaching with being a single parent, Medellin wanted something that filled a hole in training programs, which are usually geared toward professional development. She describes BMyVillage as similar to a dating app

Photography by Courtney Warden

David Jones, founder of the Geekdom legal clinics, and Belinda Medellin, who used the clinic’s resources to launch her business.

without all the baggage. Medellin appreciates that she received sound advice from the clinic and even followed up with Jones to learn about the legalities of working with independent contractors. She is grateful to Jones and his team and adds, “They listened to the questions we had, and you can see the humanity in their hearts, which sounds very ‘teachery,’ but they actually care.”

Taking the first step That empathy is what drew attorney Samar Shah to volunteer his services. “I have always believed that owning and growing small businesses is one of the most effective ways to wealth in America, and anything that I can do to help support and forward that mission is important to me,” he says. “I just wanted to help out, and it’s been very fulfilling.” According to Shah, many first-time small business owners really do not know the first step to take from a legal perspective. As he explains, “You walk into a lawyer’s office, and you may not know how much it’s going to cost and what’s going to come out of it, so I think people avoid it.

And this clinic removes that barrier.” Shah adds that the clinics answer a lot of very simple and straightforward questions and participants leave with a better understanding of what they

need and do not need. “There are 100 reasons to not start a business,” he observes, and “we can remove some of those barriers and make things a little easier. It’s really a wonderful program and it’s unique.”

Matthew Munroe agrees. Attending the legal clinic allowed him to focus on his business rather than trying to figure out how to register it. “You don’t need to be technical to start a business. You just need to have an idea,” Munroe says, adding that although “it’s not an easy staircase to climb,” he encourages those who want it to “keep pushing because it’s worth it.” Oscar Perez heard about the legal clinic from a friend, and it proved to be the key to pushing him to register his company.

“Entrepreneurs don’t really have a set salary until they’re more established. Without the clinics’ help, it would have taken me longer to register my company and to come up with the funds to do it.” Perez found that getting help from the free legal clinics was very useful and “a great, great tool.”

Making dreams real Jones, Shah, and the rest of the team, in the aftermath of all the awfulness of 2020, want to do their part and make the community they live in a better place. Jones believes it is important

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San Antonio Lawyer® 17

Photography by Courtney Warden

David Jones founded the legal clinic at Geekdom to help entrepreneurs launch their ventures from a sound footing.

to reach out to communities who might not otherwise have access to these legal services.

The profiles of those attending clinics show he is achieving that goal. As a bonus, he says, “I’ve learned so many things about so many things.” Starting a business “is really cool, and it takes courage. We try to emphasize that this is a milestone and something you should be proud of and celebrate.” After working at a few clinics, Chipman ended up filing her own LLC for her dream business, “11 & Above” and admits she never would have taken that step on her own because she is “from a small town and a minority and maybe didn’t have

The Association of Attorney-Mediators (AAM) San Antonio Chapter 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

the best education growing up.” Working with Jones made her realize, “Okay, this is possible.

I can be someone who has her own business and become an entrepreneur.”

And that makes Jones happy. Chipman and the others are “crossing a threshold where this dream is about to become real.” As a post-clinic email sent to participants says: “Congratulations! Some people look at this as just a formality, and it is to a degree, but it’s also something more important than that. You are now the proud owner of a real-life, bouncing baby company. Celebrate that!

If you’d like to volunteer your legal or paralegal services at an upcoming clinic, contact David Jones at david@djlawpartners. com. For information about attending a Geekdom legal clinic, visit https://geekdom. com or https://sasw.com.

Carolyn Wheat is a San Antonio-based freelance writer and public relations professional.

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 Michael Curry 512.474.5573 mcmediate@msn.com Allan DuBois 210.227.3106 akd@akduboislaw.com John Franco, Emeritus 210.865.8105 jjfrancotx@sbcglobal.net 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 gjavore@sbcglobal.net

Jerry King 210.771.0359 jking@beerkinglaw.com Andrew Koch 210.598.0714 andrew@aklandm.com Daniel Kustoff 210.614.9444 dkustoff@salegal.com J.K. Leonard 210.445.8817 jk@jkladr.com Cheryl McMullan, Emeritus 210.824.8120 attyelder@aol.com Dan Naranjo 210.580.6068 dan@naranjolaw.com Patricia Oviatt 210.250.6013 poviatt@clarkhill.com Jamie Patterson 210.828.2058 jamie@braychappell.com Diego Pena 817.575.9854 diego@thepenalawgroup.com Don Philbin 210.212.7100 don.philbin@adrtoolbox.com

18 San Antonio Lawyer® | sabar.org

Edward Pina 210.614.6400 epina@arielhouse.com Richard L. Reed, Sr. 210.451.6920 rreed@coatsrose.com Wade Shelton 210.349.0515 wshelton@shelton-valadez.com Thomas Smith 210.227.7565 smith@tjsmithlaw.com John Specia 210.734.7092 jspecia@pg-law.com Phylis Speedlin 210.554.5594 pspeedlin@dykema.com Lisa Tatum 210.249.2981 ltatum@tatum-law.com William Towns 210.819.7453 bill.towns@townsadr.com James Upton 361.884.0616 jupton@umhlaw.com Brittany Weil 361.548.2611

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GALA

2021

BENEFIT & AWARDS

SAN ANTONIO BAR FOUNDATION

The sold out 2021 San Antonio Bar Foundation Gala Benefit and Awards was held on October 2nd at the beautiful Witte Museum’s Mays Family Center. Guests embraced the Roaring ‘20s/Gatsby theme and enjoyed jazz and signature cocktails on the riverfront lawn with ‘20s “celebrities”, party swag, and awards were presented by the SA Young Lawyers Association, the SA Bar Association and SA Bar Foundation. Over $100,000 was raised to support bar foundation programs, civic education, scholarships, and pro-bono services. SABA would like to extend a congratulations to our awardees, and appreciation to our guests, sponsors, and table hosts.

GALA 2022 SAVE THE DATE: SEPTEMBER 24, 2022

David Evans with County Judge Nelson Wolff, the Hon. Henry Cisneros & the Hon. John Montford honoring Jane Macon with the 2021 SABA Lifetime Achievement—The Joe Frazier Brown, Sr. Award of Excellence “There’s just a lot of reasons why people in this town love Jane Macon. It’s because she’s smart. It’s because she gets things done. It’s because she’s everywhere. It’s because she’s a great lawyer. But the truth about why people love Jane Macon, the absolute core truth is that every city needs a colorful person, who is not boring, who’s gonna keep things stirred up. Every city needs its own Lady Gaga. And Jane is San Antonio’s Lady Gaga.”

Left: David Evans presents Tommy Smith with the 2020 SABA Lifetime Achievement-Joe Frazier Brown, Sr Award of Excellence.

Right Tommy Smith with his wife, Susan.

“This is what an eighth-grade sweetheart looks like 50 years later. I couldn’t have done this without Susan. Susan has been the inspiration for me from, from high school through law school. I wouldn’t have gone to law school, but for her. And I want you to know that this award is for you, not for me.”

November–December 2021

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San Antonio Lawyer® 19

The Honorable Charlie Gonzalez raised over $67,000 in five minutes for the Dawn Bruner Finlayson Scholarship

Bobby Barrera accepting the SAYLA 2021 Outstanding Mentor Award from Cassie Garza, SAYLA President

“The magic is out there with everyone … You will make certain young people’s dreams come true. And the spirit of Dawn will live on. Thank you very much!”

“I had a mentor who was second to none, my father, Roy Barrera Sr. . . . I know there are people [new attorneys] who have no one to turn to, and I thought it was my obligation to attempt to help them and fill that void.”

Ashley Benson accepting the SAYLA 2021 Liberty Bell Award “You noticed how hard all of us at the San Antonio Bar worked to keep our community informed, connected and engaged. This beautiful award will live at my home, but I share it with my SABA staff colleagues.”

“It was a wise and classic philosopher, the former heavyweight champion, Mike Tyson, who said everybody has a plan until they get punched in the mouth. And if a global pandemic isn’t getting punched in the mouth, I don’t know what is. … And Dave’s leadership set SABA apart. We’re the information hub. And he was able to take a very difficult situation, and do something great with it.”

Lawrence Morales, 2021 San Antonio Bar Association President honoring David Evans, 2020 San Antonio Bar Association President

20 San Antonio Lawyer® | sabar.org

Ryan Cox accepting the SAYLA 2021 Outstanding Young Lawyer Award

Brian C. Steward accepting the 2021 SA Bar Foundation Outstanding Lawyer in Community Service (Carolyn Thurmond Award) from David Evans “ . . as lawyers,. . the skills we bring to the table for non-profit organizations. . .We deal with conflict where most people do not want to deal with conflict. And if we can sit there at that table and bring some sort of sense to the chaos surrounding this, we need to do that. . .there are organizations that need our help. I think we do owe this community some of the things that we’ve been given. And if that means you serve on a board, or you chair something, so be it.”

Robert Eichelbaum accepting the 2021 SA Bar Foundation Peacemaker Award from Lawrence Morales “If you have not volunteered before to be a mentor for a law student, do so. The future of our community, the future of our practice is in excellent hands. I see it every day. And . .if you have the opportunity to work with conflict resolution, whether it is mediation or arbitration, have that hope that cases can settle, that things can be resolved. And try as hard as you can to bring peace to our community.”

“[At the start of my legal career] I had supervising attorneys who really allowed me to take bar service very seriously and understood that it is so important … allowing us to take the time to serve the bar and serve our community in a way that is really going to help people.

If supervising attorneys made it mandatory that their employees become involved in the bar [association] and that they take pro bono cases through the San Antonio Legal Services Association, that would close the justice gap in one day.”

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San Antonio Lawyer® 21

Ensuring a Fair Cross-Section of the Community in the Western District of Texas

By United States District Judge Xavier Rodriguez

Background After over a year of no jury trials due to the COVID-19 pandemic, I presided over the San Antonio Division of the Western District of Texas’s first criminal jury trial on May 3, 2021. During the pandemic, numerous commentators expressed concerns about whether minorities would respond to jury summonses and whether a court could seat a fair cross-section of the community. During the May 3rd jury selection, the defendant’s attorney stated that he had considered moving to dismiss or moving for a mistrial on the grounds that the panel may not have reflected a fair cross-section of the community, but he then noted that—given the presence of minorities in the panel—he would not go forward with a motion.

Since then, other judges have conducted a few civil and criminal jury trials. Researching other matters, I came across Castaneda v.

Partida, 430 U.S. 482 (1976), which piqued my interest in whether the method the Western District of Texas uses to select jurors is problematic. Unlike state courts, federal courts rely upon the names of registered voters to fill

the jury wheel, but the state district courts in Bexar County select juries from among individuals licensed to drive motor vehicles.

A. Jury Selection Law Under the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq., each federal judicial district must devise a plan for the random selection of grand and petit jurors. This plan must be designed to ensure juries are selected from a fair cross-section of the community in the applicable division of the district. Id. at §§ 1861–63. The statute contemplates that each division will use voter registration lists within that division as the source of prospective jurors. Id. at § 1863(b)(2). The statute also requires that jury selection plans “prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights” to a fair cross-section and non-discrimination. Id. In addition, the Sixth Amendment and the Due Process Clause of the Fifth Amendment require that a jury be drawn “from a fair cross section of the community.” United States v. Williams, 264 F.3d 561, 567 (5th Cir. 2001).

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A criminal defendant may move to dismiss an indictment, and a party to a civil case may move to stay proceedings, on the ground of substantial failure to comply with the provisions of the Jury Selection and Service Act of 1968. 28 U.S.C. § 1867. To establish a prima facie violation of the fair cross-section requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Duren v. Missouri, 439 U.S. 357, 364 (1979); see also Berghuis v.

Smith, 559 U.S. 314, 327 (2010).

In Duren, the Supreme Court stated that establishing the second prong requires statistical proof that the jury wheel does not adequately represent the distinctive group in relation to the number of such persons in the division. 439 U.S. at 364. The Supreme Court also noted that a defendant can use three different analyses: absolute disparity, comparative disparity, and standard deviation.

Berghuis, 559 U.S. at 329. The Supreme Court has not specified the method or test courts must use to measure the representation of distinctive groups in jury pools but noted that “[e]ach test is imperfect.” Id. A person cannot make a challenge based solely on the composition of the randomly chosen venire at trial and must show a systematic exclusion of minorities from other venires over time.

United States v. Moreno, 540 F. App’x 276, 276 (5th Cir. 2013).

1. Absolute Disparity Analysis

Most courts have employed an absolute disparity analysis when analyzing the adequacy of the particular group’s representation, which simply means that the minority percentage in the division’s wheel is compared to that

same minority’s percentage in the jury-eligible population (citizens over 18) in the division as a whole. See Berghuis, 559 U.S. at 323 (explaining that a court determines “absolute disparity” by subtracting the percentage of the members of the group in the jury pool from the percentage of the group in the local, jury-eligible population). The Fifth Circuit has held that absolute disparities of 10% or less are insufficient to establish statistical discrepancies worthy of relief. See United States v. Mosley, 370 F.3d 467, 479 (5th Cir. 2004); United States v. Williams, 264 F.3d 561, 569 (5th Cir. 2001)(5% disparity does not violate due process).

2. Comparative Disparity

A few courts have recognized that a comparative disparity analysis may be more appropriate in cases where the group at issue makes up a small percentage of the division’s population. Comparative disparity is determined by dividing the absolute disparity by the group’s representation in the juryeligible population. See Berghuis, 559 U.S. at 323. Thus, a comparison of a district with a jury-eligible Hispanic population of 4% and a jury wheel comprised of 2% Hispanics would reveal a comparative disparity of 50%.

3. Standard Deviation

No federal court has used the standard deviation analysis to review a jury challenge, but at least one concurring opinion mentioned the approach with approval. United States v.

Hernandez-Estrada, 704 F. 3d 1015, *8 (9th Cir. Dec. 5, 2012)(“More than two or three standard deviations means that ‘the hypothesis that the jury drawing was random would be suspect to a social scientist.’ . . . Doing some quick math, I calculate that the disparity between 5.2 percent and 3.5 percent in this case is more than 14 standard deviations. . . . So, there’s cause to worry.”)(Kozinski, C.J., concurring). This approach seeks to determine the probability that the disparity between a group’s percentage in the jury-eligible population and the group’s percentage in the court’s jury wheel flowed from random chance.

B. San Antonio Division Data In 2019, there were 1,492,742 registered voters in the San Antonio Division. From this number, 59,699 names were drawn to build a San Antonio Division Master Jury Wheel.

Of the 59,699 names, questionnaires were randomly sent to 30,000 individuals. Only 19,788 individuals responded. The 19,788 respondents’ information was reviewed to determine if they were eligible to serve.

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Of those, 13,279 individuals were deemed qualified jurors and placed on the qualified “wheel sample.” The following chart reflects the composition of those individuals: Race

Qualified Jury Wheel

White (non-Hispanic)

32.87%

Hispanic

41.65%

Black

5.23%

Asian

1.86%

Pacific Islander

0.20%

Other

13.04%

Multi-Racial

2.80%

Unknown

1.66%

TOTAL

99.31%

For the May 3, 2021, criminal trial, summonses were sent to 450 individuals selected randomly from the qualified wheel. In a “normal” month, about 350 summonses are sent, but due to uncertainty about how many jurors would respond during the COVID-19 pandemic, an extra 100 summonses were issued.

Reviewing the information that the 450 jurors supplied revealed the following (see page 24, Figures from Entire Pool of 450 Potential Jurors).

C. Duran analysis of the San Antonio Division jury wheel Applying an absolute disparity analysis (in which the minority percentage in the division’s wheel is compared to the same minority’s percentage in the jury-eligible population), and assuming a challenge based on Hispanic under-representation, Hispanics constituted 41.65% of the qualified jury wheel. Hispanics constituted 47.8% of persons in the San Antonio Division citizen population data. Thus, Absolute Disparity equals 6.15% and falls within the statistical discrepancy allowed by the Fifth Circuit.

A comparative disparity analysis does not apply to the San Antonio Division because the group at issue (Hispanics, in this example) do not make up a small percentage of the division’s population.

Applying a standard deviation analysis, the formula to calculate the standard deviation would look like the following using hypothesis testing, where: “ ” refers to the proportion of Hispanics measured in the sample (the jury pool); “p” refers to the proportion of Hispanics in the relevant population (citizens within the San Antonio Division); and “n” refers to the sample size (the number of individuals in the jury pool). (continued on page 25)

November–December 2021

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San Antonio Lawyer® 23

Figures from Entire Pool of 450 Potential Jurors Sex

Age Range

Marital Status

500

28% (126) 61+

52% Female (260)

400

25% (112) 51–60

300

10% (46) 18–29

200

48% Male (190) 100

22% (99) 41–50

55% (249) Married

23% (194) Single 17% (75) Unknown

14% (62) 30–40

0

500 500 500

Income

400 400 400

28% (126) Unknown

300 27% (112) 300 300 >100k

8% (36) <25k 200 200 200 12% (55) <50k 100 10% (47) 100 100 14% (64) <100k <75k 00

Education 16% (73) Post College

23% (105) High School

3% (13) Widowed

1% (6) Divorced/Separated

Breakdown

2% (8) Grade School

174 Responded

35% (156) College

24% (108) Unknown

112 Excused 59 Summoned 81 Postponed 6 Disqualified

0

18 Undeliverable

Race/Ethnicity 500

400

RELENTLESS PURSUIT OF EXCELLENCE

300

200

100

0

WE OFFER SERVICES DOMESTICALLY AND INTERNATIONALLY

210.342.0509

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www.KelmarGlobal.com License # C-05785

77% (345) White 37% (169) White Non-Hispanic 39% (176) Hispanic 61% (274) Non-Hispanic** 5% (24) Black/African American 2% (10) Asian 1% (5) American Indian 2% (8) Multi-Racial 2% (7) Unknown

(continued from page 23)

If correct, a z-score of this magnitude would be an outlier, indicating the hypothesis that jury drawing was random would be suspect to a social scientist. Indeed, there is a less than 1% chance of randomly selecting a jury pool in the San Antonio Division with such a low proportion of Hispanic jurors.

WDTX SA Data (based on 8 trials)

Bexar County Summoned Jurors Demographics (based on one trial)

GENDER Female

62.24%

Male

37.76%

RACE African American/ Black

4.50%

10.20%

Asian

1.80%

4.08%

White, Non-Hispanic

47.60%

34.69%

Hispanic/Latino

44.90%

50.00%

Unidentified

1.20%

1.02%

18-24

9.7% (18-30)

21.43%

25-34

11.74% (31-40)

23.47%

35-44

12.8% (41-50)

24.49%

45-54

33.47% (51-60)

14.29%

55-64

32.43% (61+)

9.18%

AGE

Conclusion Although it is difficult to challenge jury selection methods in the Fifth Circuit, and the absolute disparity of 6.15% falls well within the statistical discrepancy allowed by the Fifth Circuit, the standard deviation analysis suggests the San Antonio Division should expand its jury wheel using driver’s license records, which may tend to generate a more representative slate of potential jurors. But before doing so, a much more thorough analysis would be necessary.

Neither the federal nor state courts have detailed statistics pre-pandemic. When jury trials resumed, I began keeping my own statistics. Judge Antonia “Toni” Arteaga of the 57th District Court in Bexar County did a demographic analysis of one of her cases (thanks to Judge Arteaga for sharing her information with me). These albeit limited demographics data reveal starkly different jury compositions. As suspected, given that San Antonio serves not only Bexar County but also several surrounding rural counties, the percentage of minorities in a jury sitting in federal court is less than in Bexar County courts. See Chart to the right. The age of jurors is largely older in federal court, and the educational attainment is much greater in federal court. These are factors attorneys and litigants may wish to consider in evaluating forum choices, whether to remove, and settlement evaluations.

X avier Rodríguez has served as a United States District Judge for the San Antonio Division of the Western District of Texas since August 2003.

Prior to that, he served as a Justice on the Supreme Court of Texas.

From 1987 to 2001, he was an attorney with Fulbright & Jaworski.

64-70

3.06%

70+

4.08%

EDUCATION Less than H.S.

0.79%

2.04%

H.S./G.E.D.

31.22%

39.80%

Some College/Tech School

17.35%

Associates/Tech School Cert.

9.18%

Bachelor's Degree Master's Degree

47.62%

20.41%

20.63% (post-college)

8.16%

Doctorate

3.06%

MARITAL STATUS Single

42.86%

Married

52.04%

Divorced

2.04%

Widowed

1.02%

Unknown

2.04%

# OF CHILDREN None

37.76%

1-2 children

41.84%

3-5 children

17.35%

6+ children

3.06%

INCOME LEVEL ≤25k

4.50%

≤50k

18.78%

≤75k

20.11%

≤100k

14.55%

≥100k

38.62%

Unknown

2.60%

November–December 2021

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San Antonio Lawyer® 25

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Fourth Court Update

TCPA Cases after the 2019 Amendments

By Justice Luz Elena D. Chapa

D

espite the challenges of the pandemic, the Fourth Court of Appeals issued 212 opinions in criminal cases and 408 opinions in civil cases in the last fiscal year, including three cases for which mandate has issued involving the 2019 amendments to the Texas Citizens Participation Act (TCPA).

The TCPA provides a movant with the right to file a motion to dismiss a legal action if the legal action is based on, or is in response to, the exercise of the movant’s right to petition or certain other constitutional rights enumerated in the Act. Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b). If the movant carries its burden, the TCPA applies and the burden shifts to the nonmovant to establish by clear and specific evidence a prima facie case for each essential element of the legal action. Id. § 27.005. If the nonmovant carries that burden, the movant can still show it is entitled to dismissal if it establishes an affirmative defense or other grounds entitling it to judgment as a matter of law. Id. We briefly review cases applying this burden-shifting framework under the 2019 amendments to the TCPA, effective September 1, 2019, which narrowed the Act’s application by, among other things, altering definitions and adding additional exemptions.

In Straub v. Pesca Holding LLC, the court considered whether the new common law fraud exemption in the TCPA’s 2019 amendments applied to a party who was added as a defendant on fraud claims after the amendments’ effective date. 621 S.W.3d 299 (Tex. App.—San Antonio 2021, no pet.). The action commenced prior to the 2019 TCPA amendments. After the 2019 amendments became effective, the plaintiff added the new defendant and fraud claims. The newly added defendant moved to dismiss under the TCPA. The trial court denied the TCPA motion, and the new defendant appealed. The parties disagreed about whether the new “common law fraud” exemption—which provides the TCPA does not apply to a legal action for common law fraud—applied because the original lawsuit was filed before the 2019 amendments. The court affirmed the trial court’s denial of the motion and held the

newly added defendant, and the fraud claim, were separate and apart from the rest of the already pending lawsuit, and the fraud claims were exempt from the TCPA’s coverage under the TCPA’s 2019 amendments.

In Sinkin & Barretto, P.L.L.C. v. Cohesion Properties, Ltd, the Fourth Court considered whether a TCPA motion was timely filed. No. 04-20-00106-CV, 2021 WL 1649525 (Tex. App.—San Antonio Apr. 28, 2021, no pet.) (mem. op.). The appellant sued the appellee for failure to pay for legal services. After the appellee answered and counterclaimed, it amended and added new counterclaims for wrongful garnishment and theft under the Texas Theft Liability Act. The appellant moved to dismiss the new counterclaims under the TCPA, and the motion was denied by operation of law. Explaining that the TCPA’s sixty-day deadline to file a motion to dismiss is reset when a party files amended pleadings asserting new claims based on new factual allegations, the court held the TCPA motion was timely. After concluding the claims constituted legal actions subject to the TCPA, the court applied the TCPA’s burdenshifting framework and held that the appellant established affirmative defenses to each of the counterclaims, and that the claims should have been dismissed.

Finally, in KB Home Lone Star Inc. v.

Gordon, the court addressed whether a motion for $5,000 in monetary sanctions, filed in response to a motion to compel arbitration, was a “legal action” under the 2019 amendments to the TCPA. No. 04-20-00345-CV, 2021 WL 1760318 (Tex. App.—San Antonio May 5, 2021, no pet.) (mem. op.). The plaintiffs sued a home builder, which moved to compel arbitration under the parties’ agreement. In response, the plaintiffs moved for $5,000 in monetary sanctions, arguing the arbitration clause was unenforceable. The defendant filed a TCPA motion to dismiss the sanctions motion, and the TCPA motion was denied by operation of law. Applying the broad definition of “legal action” in section 27.001(6) of the Texas Civil Practice & Remedies Code, the court concluded the sanctions motion was a legal action subject to the TCPA because it was

The TCPA provides a movant with the right to file a motion to dismiss a legal action if the legal action is based on, or is in response to, the exercise of the movant’s right to petition or certain other constitutional rights enumerated in the Act. Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b).

filed in response to an exercise of the right to petition—the motion to compel—and sought legal or monetary relief. After concluding the entire lawsuit was not exempt from the TCPA based on plaintiffs’ DTPA claim in their original petition, the court held the plaintiffs failed to present clear and specific evidence of a prima facie case of each essential element of their motion for sanctions and reversed the denial of the TCPA motion.

There will no doubt be continued litigation regarding the meaning and effect of the 2019 amendments to the TCPA, and attorneys filing or defending cases in the trial courts should keep abreast of new appellate decisions interpreting the statute.

November–December 2021

J ustice Luz Elena D. Chapa has served on the Fourth Court of Appeals since January 1, 2013. Justice Chapa is a dual graduate of St. Mary’s University and practiced civil trial law with a concentration in products liability for twelve years prior to her election to the court.

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San Antonio Lawyer® 27

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.

Motion to Dismiss Title IX Case; Leave to Amend S.P. v. Northeast Indep. Sch. Dist., No. SA-21CV-0388-JKP (Pulliam, J., July 30, 2021).

The court granted a school district’s motion to dismiss the plaintiff’s claims for discrimination under Title IX of the Education Amendments of 1972 and for violation of substantive due process under 42 USC § 1983. The plaintiff alleged that, beginning in the eighth grade, she was meticulously groomed and sexually assaulted by her teacher. The plaintiff alleged that the school’s assistant director had observed the teacher alone with the plaintiff, once behind closed doors, and that another time another teacher had observed the plaintiff and the teacher alone in a classroom for an extended time. While the plaintiff pled that the school district had actual notice of the sexual harassment, grooming, and abuse of the plaintiff by the teacher, the plaintiff provided no factual allegations to support a finding that the school board or principal had actual notice.

While the plaintiff’s pleadings supported a finding that the school district had knowledge of behavior consistent with grooming, the plaintiff provided no basis to equate grooming with sexual harassment. The court analyzed whether actual knowledge of grooming behavior created a reasonable inference that the director had actual knowledge of the sexual harassment or of a substantial risk of sexual abuse. The court determined that the plaintiff’s allegations were insufficient to even plausibly claim that the school district should have known, much less actually knew, of the harassment. The plaintiff’s request for leave to amend her complaint was denied. Noting she 28 San Antonio Lawyer® | sabar.org

could have amended her complaint as a matter of course under FRCP 15(a)(1) but failed to do so, the court reviewed the request under the discretionary standard of FRCP 15(a)(2).

Because the plaintiff’s intended amendments would not cure deficiencies related to actual knowledge of harassment or of a substantial risk of abuse, the court denied the request for leave. The plaintiff abandoned her due process claim by failing to address it in her response to the motion to dismiss.

Depositions; COVID-19 Cantu v. Mammoth Energy Servs., SA-19-CV00615-DAE (Chestney, E., Aug. 27, 2021).

The court granted, in part, the defendants’ motion to compel in-person depositions in a collective action brought under the Fair Labor Standards Act. The parties agreed to conduct representative discovery with 22 out of the 156 plaintiffs. Only some of the 22 plaintiffs lived in the San Antonio area. The defendants originally wanted all 22 depositions to occur in-person in San Antonio, but then offered to travel to the major city closest to where a plaintiff resided while implementing COVID-19 protocols. The plaintiffs wanted all depositions to occur via telephone or videoconference, allowing each plaintiff to remain where they reside. The court ordered staggered depositions, citing to FRCP 26(c) (1)(B), which allows the court wide discretion to determine the method of discovery, such as the designation of the time and place of a deposition, so as “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.” The first round of depositions would include in-person depositions of the San Antonio-area plaintiffs,

implementing COVID-19 safety protocols.

The second round would include in-person depositions in a centralized city close to the next largest number of representative plaintiffs, consolidated to minimize travel and expense to the parties, and implementing COVID-19 safety protocols. Alternatively, the defendants could notice the second round of depositions via Zoom.

Work-Product Privilege Moya v. Allstate Fire & Cas. Ins. Co., SA21-CV-00009-FB (Biery, F., July 19, 2021).

The court denied the plaintiff’s motion to compel documents reflecting review and evaluation of the plaintiff’s medical bills in an underinsured motorist case. The defendant argued such documents were protected under the work-product privilege. The Fifth Circuit’s rule on work-product privilege did not apply because the case arose under diversity jurisdiction, requiring application of Texas law. Texas recognizes a work-product privilege for material prepared, mental impressions developed, or communications made in “anticipation of litigation or for trial by or for a party or party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.”

Work product not prepared by an attorney or attorney’s representative is discoverable upon a showing that the party seeking discovery has a substantial need for the materials in the preparation of the party’s case, and the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. The defendant satisfied its prima facie burden with an affidavit providing that the documents sought by the

plaintiff were prepared after the defendant received a demand letter for policy limits.

The plaintiff’s motion to strike the affidavit, on the grounds that it was not provided prior to the defendant’s response to the motion to compel, was denied because the failure to formally disclose the affidavit was harmless as the affiant had been repeatedly identified in response to other discovery requests. The court ruled the defendant satisfied its burden to show documents made after the demand letter were “in anticipation of litigation” and thus protected under the work-product privilege, but documents made prior to the demand letter were not protected. The court ruled the plaintiff failed to establish it had a substantial need for the protected materials.

Snap Removal, Improper Joinder; Remand Molina v. Am. Access Cas. Co., SA-21-CV00363-XR (Rodriguez, X., Aug. 17, 2021).

The plaintiff sued his auto insurance company and the insurance agency that facilitated the policy in state court for breach of contract, violations of the Texas Deceptive Trade Practices Act and Texas Insurance Code, fraud, and declaratory relief. Prior to service on the auto insurance company, the insurance agency removed based on diversity jurisdiction, arguing its citizenship (Texas) should be disregarded because it was improperly joined, and diversity existed between the auto insurance company (Illinois) and plaintiff (Texas). The plaintiff moved to remand. In the context of “snap removal” (removal prior to service on all defendants), the court addressed whether the removal was procedurally defective based on the “forum defendant rule,” which holds that a suit that is “otherwise removable solely on the basis of [diversity of citizenship] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” The plaintiff argued the insurance agency could not remove an action to federal court based on its own improper joinder. The court relied on the Fifth Circuit’s analysis in Texas Brine Co., that “[a] non-forum defendant may remove an otherwise removable case even when a named defendant who has yet to be ‘properly joined and served’ is a citizen of the forum state.”

Though noting the Texas Brine opinion focused on whether the in-state defendant had been properly served, and did not address whether in-state defendants who have been served but assert that they have been improperly joined can remove, the court concluded the analysis

applied equally to the requirement that the in-state defendant be “properly joined.” The court relied on the language of 28 U.S.C. § 1441(b)(2) in concluding “[n]othing in the statute appears to prohibit removal by a forum-defendant who asserts that it has been improperly joined to the action” and that the in-state defendant insurance agency’s removal based on its own improper joinder was not barred by the forum defendant rule, even in the context of snap removal. The court further concluded the removing defendant established it was improperly joined. Noting the focus is “on the joinder and not the merits of the case,” the court, after analyzing the plaintiff’s petition and finding it omitted discrete facts that would determine the propriety of the joinder, concluded it was necessary to pierce the pleadings and conduct a summary inquiry to analyze the propriety of the joinder. In doing so, the court held the agency defendant was improperly joined because “there is no reasonable basis to predict that Plaintiff might be able to recover against [the insurance agency].” The court dismissed the improperly joined defendant from the action and denied the plaintiff’s motion to remand, concluding the court could exercise subject matter jurisdiction over the remaining defendant.

Removal, Improper Joinder Polinard v. Covington Specialty Ins. Co., SA-21-CV-00353-XR (Rodriguez, X., Aug. 24, 2021).

After a plaintiff sued an insurance company (Covington), agency (Tabak), and agent (Granados) in state court, Covington removed the action based on diversity jurisdiction, alleging the citizenship of Tabak and Granados must be disregarded based on improper joinder. The court conducted a Rule 12(b)(6) and 9(b) analysis of the petition and concluded the plaintiff improperly joined Tabak and Granados because neither owed a duty to the plaintiff under Texas law and the plaintiff’s claims sounding in misrepresentation failed to satisfy the pleading requirements of Rule 9(b). The court dismissed without prejudice all claims against Tabak and Granados and disregarded their citizenship, exercising jurisdiction over the remaining defendant, Covington. In denying the plaintiff’s motion for remand, the court rejected the plaintiff’s argument, under the “rule of unanimity,” that Covington did not receive consent for removal from Tabak. The court held that because it had concluded Tabak was improperly joined, the rule of unanimity was inapplicable.

Proportionality, Discovery Relating to Medical Billing Records Acuna v. Covenant Transp., Inc., SA-20-CV01102-XR (Rodriguez, X., Aug. 31, 2021).

In a personal injury action arising out of a motor vehicle accident, the defendants subpoenaed the plaintiffs’ medical providers, requesting billing records. The plaintiffs filed motions for protective order and motions to quash, arguing the billing records were not relevant or proportional to the issues in the lawsuit. The defendants argued billing records frequently contain detail regarding treatment, and that they were not seeking the subpoenaed records to ascertain any information related to billed amounts, but rather to get a more complete picture of the plaintiffs’ recent health history. Noting that Rule 26 provides “broad access to any nonprivileged matter relevant to any party’s claim or defense and proportional to the needs of the case” and that the defendants had articulated the basis for their request, the court found the records to be relevant and denied the motions for protective order and to quash. On the issue of proportionality, the defendants agreed to limit the requests to three years prior to the motor vehicle accident, and the court found the request with the narrowed time frame to be proportional.

November–December 2021

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 practices business litigation and appellate law with Gonzalez Chiscano Angulo & Kasson, PC.

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San Antonio Lawyer® 29

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Customized Lending • Private Access Account • Credit Cards • Professional Mortgage Program Revolving Line of Credit • Wealth Management Advisory Services

broadway.bank • (512) 465-7803 Membership qualifications to Private Banking at Broadway Bank apply. All loans are subject to credit approval. Term and Conditions are subject to change without notice.

Other Conditions may apply. The creditor and issuer of these credit cards is Elan Financial Services. Member FDIC. Rev. 02/21 / #634628375

Wealth Management Advisory Services: NOT FDIC INSURED • NOT A DEPOSIT NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY • NOT BANK GUARANTEED • MAY LOSE VALUE