San Antonio Lawyer, November/December 2024

Official Publication of the San Antonio Bar Association

November–December 2024

THE HONORABLE LAURA SALINAS 166th Judicial District Court

2 San Antonio Lawyer® | sabar.org

I love LawPay! I’m not sure why I waited so long to get it set up.

+

– Law Firm in Ohio Member Benefit Provider

Trusted by 50,000 law firms, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools.

22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours

YOUR FIRM LOGO HERE

Trust Payment IOLTA Deposit New Case Reference ***

**** **** **** 9995

TOTAL: $1,500.00 POWERED BY

PAY ATTORNEY

Get started at

lawpay.com/saba 866-730-4140 Data based on an average of firm accounts receivables increases using online billing solutions.

LawPay is a registered agent of Synovous Bank, Columbus, GA., Fifth Third Bank, N.A., Cincinnati, OH, and Wells Fargo Bank, N.A., Canadian Branch, Toronto, ON, Canada.

contents ON THE COVER 7 Judge Laura Salinas, 166th Judicial District Court

By Stephen H. Gordon

FEATURES 14 Understanding Immigration, Part I: Ten Immigration Facts Every Attorney Should Know

By Linda A. Brandmiller

17 Hip-Hop Observes Its Golden Anniversary: How a “Niche Movement” Influenced the Law and Changed the World, Part 1 By ileta! A. Sumner

22 Special Judge Trials Are an Alternative to Arbitration

7

By Paul T. Curl

Judge Laura Salinas Photos by Mewborne Photography at The University of the Incarnate Word

DEPARTMENTS

BAR BUSINESS

21 Fourth Court Update

12 2024 San Antonio Bar Foundation Gala Benefit and Awards

By Justice Irene Rios

By SABA Staff

26 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

November–December 2024 | San Antonio Lawyer® 3

®

Official Publication of the San Antonio Bar Association San Antonio Lawyer ® is published bimonthly. Copyright ©2024 San Antonio Bar Association. All rights reserved. Republication of San Antonio Lawyer content, in whole or in part, is prohibited without the express written permission of the San Antonio Bar Association. Please contact Editor in Chief Sara Murray regarding republication permission.

Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. San Antonio Lawyer, the San Antonio Bar Association, and the Publisher reserve the right to edit all materials and assume no responsibility for accuracy, errors, or omissions. San Antonio Lawyer and the Publisher do not knowingly accept false or misleading advertisements or editorials, and do not assume any responsibility should such advertising or editorials appear.

Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published.

Please send all correspondence to info@sabar.org.

Advertising Inquiries:

Archives of San Antonio Lawyer are available at sabar.org.

Monarch Media & Consulting, Inc.

Send address changes to the San Antonio Bar Association.

Mediation Booking: DonPhilbin.com Scheduling Assistance: (210) 212-7100

Chellie Thompson 512.293.9277 chellie@monarchmediainc.com EDITORS

Editor in Chief Departments Editor Publication Design and Production: Sara&Murray Monarch Media Consulting, Inc. Articles Editor Natalie Wilson

Leslie Sara Hyman

Editor in Chief Emerita Hon. Barbara Nellermoe

PUBLISHING PARTNER Monarch Media & Consulting, Inc. 512.293.9277 | monarchmediainc.com Design Direction Andrea Exter

Design Sabrina Blackwell

BOARD OF EDITORS Sara Murray, Chair Pat H. Autry, Vice-Chair Barry Beer Curt Moy Amy E. Bitter Hon. Barbara Nellermoe Michael Curry Steve Peirce Shannon Greenan Regina Stone-Harris Stephen H. Gordon ileta! Sumner Leslie Sara Hyman Natalie Wilson Lauren Miller Ex Officio Patricia “Patty” Rouse Vargas

Advertising Sales Chellie Thompson

“His grasp of the forces that drive a successful mediation is always spot on.”

For advertising information, contact:

“A real thinker and innovator”

Chellie Thompson, Monarch Media & Consulting, Inc. chellie@monarchmediainc.com

“One of the smartest, most talented mediators I know” “Lots of really innovative and clever ideas for helping people close” “Works hard to ensure the parties are aware of the risks”

126 E. Nueva, 3rd Floor, San Antonio, Texas 78204 210.227.8822 | sabar.org

OFFICERS / DIRECTORS President Patrica “Patty” Rouse Vargas President-Elect Nick Guinn Treasurer Jaime Vasquez Secretary Emma Cano Immediate Past President Steve Chiscano

4 San Antonio Lawyer® | sabar.org

Directors (2023-2025) Kacy Cigarroa Melissa Morales Fletcher Elizabeth “Liz” Provencio Krishna Reddy Directors (2024-2026) Jorge Herrera Abel Martinez Cynthia Orr Kristal Thomson Executive Director June Moynihan

STATE BAR / SA BAR FOUNDATION State Bar of Texas Directors Steve Chiscano Lawrence Morales, II

San Antonio Bar Foundation Chair Steve Chiscano

LOCAL BAR ASSOCIATIONS Association of Corporate Counsel South/Central TX Bexar County Women’s Bar Association Christian Legal Society Defense Counsel of San Antonio Federal Bar Association—San Antonio Mexican-American Bar Association—San Antonio San Antonio Black Lawyers Association San Antonio Criminal Defense Lawyers Association San Antonio Trial Lawyers Association San Antonio Young Lawyers Association TEX-ABOTA, American Board of Trial Advocates—San Antonio William S. Sessions Inn of Court

INCLUSIVE. You wanted a Texas legal malpractice insurance company that insured all areas of practice, including those not often insured by other carriers. You wanted numerous limit and deductible options and a provider that’s flexible enough to serve one to 100 lawyer firms, yet focused on delivering incredible results through stellar service.

We listened.

Be Heard.

TLIE.ORG or (512) 480-9074

KFG24_CS_018_SALawyer_SeptOct_080524.indd 1 2_4x4_9in_San Antonio_TLIE INCLUSIVE Ad_2024.indd 1

1/4/24 10:04 AM

8/12/24 2:55 PM

November–December 2024 | San Antonio Lawyer® 5

Probate, Estate, and Divorce Property Specialists!

40+ Years of Proven Results! Free Market Analysis!

Jeff Soele • 210-705-4013 • jeff@texasbestranches.com 6 San Antonio Lawyer® | sabar.org

Judge Laura Salinas 166th Judicial District Court

By Stephen H. Gordon Photos by Mewborne Photography at The University of the Incarnate Word

A

s a young teen, Laura Salinas had a feeling that she was destined to go into either the field of law or medicine.

A couple of her cousins were already in the medical field.

However, her parents helped steer her in the right direction by telling her, on more than one occasion, that she should become an attorney. That may have had something to do with her early ability to hold her ground in any family argument. The medical field’s loss ended up being the legal community’s gain.

Growing Up Judge Salinas is a San Antonio native. Her mother was born in Nueva Rosita, in the Mexican State of Coahuila; and her father was born in Nordheim, Texas—both small towns. An appreciation for small town values is clearly in her blood. She has fond memories of the many summers spent visiting Nueva Rosita in her youth, where her mother and her family had a huge influence on her life and her overall work ethic. She describes her mom as a “traditional Hispanic mother, who would work hard all day, then come home and take care of the house and family.” Although her mom had only a fourth-grade education, she had a wealth of “real world experience.”

Spanish was the Judge’s first language, but she learned English at elementary school, and “picked it up pretty quickly from kids in the neighborhood.” She was oldest of five children, so she learned to step up

and become a leader and caretaker of others early on in life. Although being the first-born came with some benefits, it also meant she had the strictest upbringing of her siblings, including a curfew until she was in her early twenties!

Judge Salinas attended Robert E. Lee High School and graduated in 1990, becoming the first in her family to finish high school. She went on to get her undergraduate degree at the University of the Incarnate Word.

Although there were early indications of her interest in the legal field, the decision to become a lawyer was not an automatic one. She did well in all school subjects, so at first, she was not sure which direction to go.

At Incarnate Word, she majored in International Business and minored in Spanish, where she could put her bilingual skills to beneficial use.

Early Career Her first legal job, during her freshman year in college, was working as a receptionist for local Attorney David Leibowitz.

Talking to his clients and hearing their stories really helped solidify her decision to enter law school. A significant amount of her time was spent working on class-action asbestos litigation. The firm represented several hard-working, poor people—many with Mexican ancestry. Helping obtain compensation for those who had suffered serious health injuries helped instill in her a sense of getting justice done for her clients.

November–December 2024 | San Antonio Lawyer® 7

Judge Laura Salinas (center) with her great grandmother and cousins in Mexico.

My Morning Prayer “This is the day the Lord has made; let us rejoice and be glad in it” (Psalm 118:24) O God, for another day, for another morning. For another hour, for another minute, for another chance to live and serve Thee, I am truly grateful.

Do Thou this day free me from all fear of the future, from all anxiety about tomorrow, from all bitterness towards anyone, from all cowardice in face of danger, from all laziness in the face of work, from all failure before opportunity, from all weakness when Thy power is at hand.

But fill me with Love that knows no barrier, with Sympathy that reaches to all, with Courage that cannot be shaken, with Faith strong enough for the darkness, with Strength sufficient for my tasks, with Loyalty to Thy Kingdom’s goal, with Wisdom to meet life’s complexities, with Power to lift me to Thee.

Be Thou with me for another day and use me as Thou wilt.

For Christ’s sake I pray. Amen.

8 San Antonio Lawyer® | sabar.org

By her junior year in college, the Judge knew she wanted to go to law school. However, she never envisioned that she would end up practicing family law or criminal law, or becoming a judge. She originally planned to have a practice focused on international business instead. As she explains, “The good thing about the law is that it offers a lot of choices, but that can sometimes be overwhelming when you are trying to narrow down the focus of your actual career path.”

After graduating from Incarnate Word, she entered the Southern Methodist University Dedman School of Law in 1994. During her third year of law school, she gained some more real-world legal experience by working as a law clerk for Attorney Reynaldo Diaz. While there, she worked on civil litigation cases, with a primary focus on personal injury matters. Rey recalls her being very eager to learn the ropes and “doing a great job with every task that [he] threw at her—researching, drafting motions, preparing for depositions, etc.”

In 1997, Salinas graduated from SMU law school and became licensed to practice law. She still remembers the day she found out that she had passed the Bar Exam. She learned that good news the old school way—by calling in to a special State Bar of Texas phone number to get the results. She also remembers the stress of awaiting the results, which she helped manage using her mother’s “Peppermint Oil” remedy to clear her head and relax.

Her first post-law school job was working for local Attorney Virgil Yanta, where she tackled the basic challenges of being a young, new attorney. Shortly thereafter, she decided to go out on her own, taking up residence in an office with Attorney Tony Jimenez. While there, she focused primarily on family law and criminal law cases. She admits to having initially been a bit intimidated by the idea of working on criminal cases, but she ended up really enjoying the process.

As time went on, she gradually developed her own style of lawyering and became more confident in handling the complexity and contentious nature of the courtroom. Along the way, she always tried to remain committed to being the type of lawyer who did not want to make a fight out of every case just for the sake of fighting. She learned this in large part by watching how Tony handled his cases.

Tony helped her learn the ropes and gain her financial footing by offering her a base salary and showing her how to obtain more cases through the court appointment system for indigent clients. He also offered her a very practical financial arrangement for any new clients she brought into the firm—-“You eat what you kill.” She credits Tony with helping her get out of her initial comfort zone and become more confident about meeting new people and public speaking. These skills would become invaluable in the next phase of her career.

Tony’s first impression of Salinas was that she had real empathy for her clients. By all the questions she asked, he could tell that she had a real passion for her career and a powerful desire to learn the nuances of criminal law. To help her gain the experience she needed, Tony took her into the courtroom to sit second chair with him on some felony trial cases. After a few times of sitting co-chair, she started handling cases on her own. Tony jokingly started referring to her as the “public defender” because he kept seeing her in the same courtroom over and over as her caseload grew. By then, there was certainly no sign of the lack of confidence that she credits him with helping her overcome.

One of Tony’s fondest memories of working with Salinas is when he went into her office one day to fix his tie before court and stood in front of a large mirror she had in her office. Attached to the mirror was a prayer card entitled “My Morning Prayer.” He was struck by the positive and humble message within the prayer, and the fact that she would incorporate this prayer into her daily routine, even though she clearly had the intelligence and wisdom to be a success on her own.

Later, when the Judge asked Tony to speak at her initial investiture, he read a copy of the prayer to the attendees. Senator Leticia Van de Putte was in the audience that day and was so impressed by the prayer that she approached him afterwards and asked for a copy of it. He was happy to oblige.

Judge of County Court at Law No. 9 In 2006, Salinas made the decision to run for Judge of Bexar County Court at Law No. 9. She did not necessarily have an intense drive to become a judge back then, but she was approached by several people who said she had the right demeanor for the job and should seriously consider running for office. After giving some more thought to the idea, she decided to jump in at the last minute. Her primary race was about as close as you can get—she won by a mere seven votes—and she realized then that the oft-repeated phrase “every vote counts” was not just a slogan, but the truth. She ended up winning the general election with a much wider margin of victory and started serving in 2007.

The Judge estimates that she presided over at least seventy or so criminal jury trials while on the County Court at Law No. 9 bench.

She was also a frequent participating judge in the “Courts in Schools” program. As part of that program, real-life court hearings are conducted in area middle schools and high schools so that students can see firsthand how criminal cases are presented in court. All the main parties take part in the process—prosecutors, defense attorneys, probation officers and the defendants—so the students can see the role each plays in the legal system.

Shortly after taking the bench, Judge Salinas married her husband Ray Garza, and they had their first and only child a couple of years later, a daughter. Although her family life was moving in a positive direction,

Judge Salinas’ daughter and husband were present at her investiture.

her reelection campaign did not go according to plan, and she lost her reelection bid in 2010. Although losing reelection was a disappointment, she credits her husband with reminding her that, as a lawyer, she had the luxury of going back to work in her field immediately, unlike most people who lose their jobs.

She quickly put this loss behind her and embarked on the next phase of her career. She got an office in Attorney Oscar Gonzalez’s building, returning to the familiar territory of family law, criminal law, and some business law cases. Eventually, her primary focus centered on family law cases, as she once again started building up her own private practice.

TEXAS CHAPTER MEMBERS IN SAN ANTONIO

John BOYCE

Roger BRESNAHAN

Hon. Karen POZZA

Joseph CASSEB

Krishna REDDY

Aric GARZA

Roberto RIOS

Gary JAVORE

Wade SHELTON

Kevin MICKITS

Hon. John SPECIA, Jr.

Don PHILBIN

Hon. Phylis SPEEDLIN

Dan POZZA

Hon. Catherine STONE

Check preferred available dates & schedule online in seconds - for FREE

Visit our TX Chapter at www.TexasNeutrals.org Visit our National Database of over 1000 top litigator-rated mediators & arbitrators at www.NADN.org

November–December 2024 | San Antonio Lawyer® 9

Judge of the 166th Judicial District Court

Justice Rose Spector swore Judge Laura Salinas into the County Court at Law No. 9 in January 2017.

Judge Martha Tanner with Judge Salinas after swearing her into the 166th District Court.

Your IT Solutions Experts who can help with: • • • • • • •

HIPPA Compliance (TX HB300 applies) Cloud: storage, files, computers, servers Computers: repairs, upgrades, purchases, encryption Servers: setup, repairs, maintenance, purchases Email: domains, migration, backup, encryption Office 365: email, OneDrive, backup and Office software VoIP phones: includes Quality of Service (QoS) and backup internet • Network: devices, setup, repairs, maintenance • Call when you need us or customized service options available • Remote and on-site support, antivirus programs, virus removal, maintenance

www.pstus.com • 210-385-4287 support@pstus.com

Mention this ad and receive 20% off your first invoice.

10 San Antonio Lawyer® | sabar.org

As time went on, she realized that she wanted to return to the bench, but she was not too thrilled about the idea of running against a sitting Judge again. When she learned that District Court Judge Martha Tanner was retiring from the 166th Judicial District Court in 2011, Salinas decided the timing might be right. Judge Tanner encouraged Salinas to jump into the 2012 race and give it her best effort, so Salinas decided to throw her hat into the ring as a candidate for the 166th District Court.

This election campaign was a success, and Judge Salinas again took her seat on the bench in 2013. As a District Court Judge, though, her docket was significantly different from her time as County Court at Law Judge. Although her focus had to switch from criminal law cases to civil law cases, her experience in a variety of fields equipped her well to handle these changes.

The Judge’s second attempt at reelection went better than her first time in county court, and she secured her second term in office in 2016.

She was just as successful on her third run in 2020, winning her seat on the bench again. By this time, she had spent so much of her life campaigning that, at one point, her daughter started to think that the Judge’s full name was actually “Vote Laura Salinas.” Judge Salinas was unopposed going into her fourth term as the Judge of the 166th Judicial District Court.

She sees her judicial temperament as one of her greatest strengths and feels that she tends to exhibit the typical characteristics of a Libra— balanced and low-key. She has found that it is important to hide your emotions and try to keep a “poker face” while performing the duties of being an impartial decision-maker. She also remains mindful of the need to avoid contracting a case of “Robe-itis,” which can lead to a Judge’s gradually seeing himself or herself as above the other parties in the courtroom, and always thinking that he or she is right. As she puts it, “We judges need to always remember that the job does not belong to us, as we are just here to serve the people.” Judge Salinas’ colleagues describe her as even-tempered, fun-natured, and fair.

Like all District Court Judges, she spends most of her time presiding over family law cases, which tend to be the most contentious and emotionally difficult. She strongly encourages all parents to confer and try to work out a compromise agreement before going forward with contested hearings. She warns them that it will be so much easier to coparent afterwards, if they avoid an ugly public battle and somehow find common ground instead. Knowing the potential ramifications of her rulings in these cases is one of the toughest parts of her job.

Another sometimes difficult part of the job is dealing with today’s social media climate. Although it is a necessary part of the job to be actively in the public eye when running for office, she has noticed that it does have some concerning downsides. She came to realize the importance of drawing a line between one’s personal and one’s professional life, and she has found herself sometimes feeling the push to take a step back from her social media presence from time to time.

This distinction is even more critical currently, when security threats to public officials have unfortunately been on the rise in the last few years.

Throughout her career, Judge Salinas has received several awards for her contributions to the local legal community. These include the “Outstanding Women in Action” award from The La Prensa Foundation, and the “Best 100 Hispanic Role Models” award from the Riverside Park Academy. Looking back on her career, she says she can still remember what it was like being a “baby lawyer.” “You blink, and time flies by. It still seems like just yesterday that I first got elected.”

However, as Judge Peeples recently reminded her, she has now worked her way to becoming one of the more senior judges on the bench.

Life Off the Bench In her personal life, the Judge’s main interests are simply spending time with her family and traveling. Her family is close-knit and still gets “together for Sunday dinners every week.” Traveling is not something she could really afford to do when young, so she is now making up for lost time. She finds it especially important to expose her daughter to other countries and other cultures along the way.

One of the most memorable trips she recalls taking was to an archaeological dig site in Oaxaca, Mexico. She took her daughter on a tour there, and they came across a local artist who made clay sculptures with his hands. Sadly, the sculptor had lost his sight at age 55, but he still somehow managed to make everything from memory. He had a little workshop with his wife, who helped add the details to his pieces after he crafted the basic shapes. Despite their hardships and modest living conditions, they seemed genuinely happy with the life they had. Judge Salinas believes it is essential for her daughter to experience encounters such as this in order to get in touch with her roots and history. As she explains: “It is one thing to read about novel places in books. It is another to see them in person with your own eyes.” She hopes to travel to Europe, Greece, Switzerland, and other parts of the world sometime in the future.

Attorney Stephen H. Gordon is the founder of The Gordon Law Firm, P.C., which is currently celebrating its 25th year in existence. He was recently named as one of San Antonio’s Top Attorneys by San Antonio Magazine.

The Firm’s practice focuses on Bankruptcy, Criminal Law, Family Law, Personal Injury, and Wills, Estate & Probate Cases.

“It is one thing to read about novel places in books. It is another to see them in person with your own eyes.”

Judge Salinas with her husband, Ray, in Oaxaca, Mexico.

Judge Salinas and her daughter in San Miguel de Allende, Mexico.

THANK YOU TO OUR GENEROUS 2024 GALA SPONSORS! PATRONS Siebert Foundation | The Vargas Family | Sara E. Dysart, PC HOSTS Chamberlain Hrdlicka | Crosley Law Firm | Davis & Santos | Davis Cedillo & Mendoza | Dryer & Mazaheri Law Firm Drought, Drought & Bobbitt | Dunn Sheehan | Dykema | Gonzalez Chiscano Angulo & Kasson | George Salinas Injury Lawyers Goldstein & Orr | Gunn, Lee and Cave | Herrera Law Firm | Jackson Walker | Jefferson Cano Langley & Banack | Lyons & Lyons | Norma Gonzales, Judge 131 District Court | Norton Rose Fulbright Ogletree Deakins | Reuter Law Group | Rojas Law Firm | Thomas J. Henry Law Firm | Trinity University VENDORS Byron Leflore, PCP Law | Denton Navarro Rodriguez Bernal Santee & Zech | EmployStats | Frost | LexisNexis RSM | Scott Douglass McConnico | theKFORDgroup | Tim Allums, KW Heritage

November–December 2024 | San Antonio Lawyer® 11

2024 SAN ANTONIO BAR FOUNDATION GALA BENEFITS AND AWARDS Robert Soza, SAYLA Outstanding Mentor Award recipient, The Hon. Lucy Adame-Clark, Liberty Bell Award recipient, Cassie Garza, Outstanding Young Lawyer recipient accept their awards from SAYLA President, Josué Galván.

The San Antonio Bar Foundation’s Gala, “Memphis Blues,” was a sold-out event celebrating the legal community. The San Antonio Young Lawyers (SAYLA) recognized their awardees, and the San Antonio Bar Association (SABA) honored the Hon. Charlie Gonzalez with the prestigious Lifetime Achievement Award.

Thank you to our sponsors and attendees who raised more than $100,000 in support of the San Antonio Bar Foundation, which is dedicated to enhancing the rule of law and justice in Bexar County by funding programs focused on legal ethics, justice administration, pro bono services, and scholarship. After the program, the Blues Lounge filled with energy as karaoke kicked off, leading to legendary performances that will be remembered for years!

The Hon. Charlie A. Gonzalez was presented with the SABA Lifetime Achievement Award, Joe Frazier Brown Award of Excellence

12 San Antonio Lawyer® | sabar.org

SABA President Patty Vargas, the Hon. Charlie Gonzalez, and San Antonio Bar Foundation (SABF) Chair Steve Chiscano

2016 SABA Lifetime Achievement Award recipient Gerry Goldstein, Christine Goldstein, 4th Court of Appeals Chief Justice Rebeca Martinez, the Hon. Charlie Gonzalez, and Linda Gonzalez.

The evening’s emcees were SABF Chair Steve Chiscano and SABA President Patty Vargas.

State Bar of Texas President Steve Benesh and wife Jennifer Benesh pose with the famous party starters.

Greg Lehrmann, Supreme Court of Texas Justice Debra Lehrmann, 2023 SABA Lifetime Achievement Award recipient Sara Dysart, St. Mary’s Law School Dean Patricia Roberts, and Frank Barcalow.

SABA Board Member Liz Provencio, Associate Judge Carmen Samaniego, Judge Tina Torres, Judge Norma Gonzales, and SABA Board Member Melissa Morales Fletcher.

Ariana Gordon, SABLA PresidentElect Whitney Thomas, and SABLA President Danica McKinney cheer on the Blues Lounge singers.

Judge Cynthia Chapa, Judge Nicole Garza, Lawrence Morales II, Tom Crosley, and Steve Chiscano’s performance of “Sweet Caroline” was “so good, so good”!

Patty Vargas, Kristal Thomson, Lara Brock, Nadeen Abou Hossa, and Justice Beth Watkins strike a pose.

SABA Board member Kristal Thomson and SABA Members get ready for karaoke.

Group dances the night away!

SAVE THE DATE: September 20, 2025

Scan the QR code for the full gallery from the event!

November–December 2024 | San Antonio Lawyer® 13

10

UNDERSTANDING

IMMIGRATION, PART I

Ten Immigration Facts Every Attorney Should Know

By Linda A. Brandmiller

I

mmigration is a hot topic these days.

It is politically charged. and it is very misunderstood. Importantly, it is a topic that affects all practice areas.

Although immigration laws, rules, policies, and practices are always in flux, there is some basic information that every lawyer should understand about immigration and the immigrant community.

First, a word about words: Words matter, and framing the immigration issue is important. Although the term “alien” is the technical term in the federal immigration code, the term “illegal alien” is NOT, and it is nearly always deliberately negative in contemporary use. The term “alien” is defined in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(3)) as any person not a citizen or national of the United States.

This term may include a stateless person and is synonymous with “noncitizen” and “foreign national,” both of which are appropriate descriptions for this immigrant population.

A person is not illegal—an ACT is illegal. You might cross the street outside of a crosswalk, but that does not make you “an illegal jay walker.” In fact, it is not a crime to be in the country without permission—it is a civil infraction. Therefore, it is incorrect as well as inflammatory to use the terms “illegal alien” or “illegals” since these derogatory descriptions are meant to further marginalize the immigrant population. Terms such as “undocumented” or “here without permission” may also be used to describe someone in the United States without legal status. We all owe a duty to correct anyone using the term “illegal” to describe a person, just as we would correct anyone using any racial, ethnic, or offensive slur.

With those preliminary matters explained, let’s get to ten immigration facts every attorney should know: 14 San Antonio Lawyer® | sabar.org

10

Generally, you have to be connected to someone to obtain legal status.

The two basic groups are an immediate family member with legal status (parent, spouse, U.S. citizen sibling, or U.S. citizen child over the age of 21) or an employer with a specialized need. These are the people who may file a petition for an immigrant. Once a petition is filed, the immigrant is generally considered to be “in line.”1 This “line” however, is dictated by the relationship to the citizen/resident, as well as by country quotas that, in large part, have not been updated since the Immigration Act of 1924 (also called the Johnson-Reed Act), which prevented immigration from Asia and set quotas on the number of immigrants from Eastern and Southern Europe. To fully comprehend how we got to where we are with the immigration debate, a review of this Act is mandatory reading. The monthly Department of State visa bulletin advises the petitioner and the immigrant which applications are being adjudicated that month from each country, with some applications having more than a twenty-year wait. Even then, for most immigrants, there is no one with legal status available to petition them, and they have no specialized job skills. Therefore, there is never any “line” for them to get into.

9

Marrying a United States citizen does not automatically grant legal status.

An immigrant application for an immediate family member is very complicated and can take years to get approved.

Additionally, the history of the immigrant is cumulative and is never erased. Therefore, all entries (and attempted entries), exits, immigration problems, and criminal charges (even those occurring when the immigrant is/was a juvenile) affect this process and the

outcome. If the immigrant’s last entry into the United States was without permission, he or she must leave the country (unless the petitioner qualifies under prior amnesty laws that ended in April 2001 or has a military history) in order to finish his or her application through consular processing. This, however, is complicated by the fact that if the immigrant is over the age of eighteen, he or she will automatically receive a penalty of three, ten, or even twenty years for the time spent in the United States without permission and if there is a complicated immigration history.2 Depending on individual circumstances, an immigrant may apply for a waiver, but he or she still must leave the country to complete the application process. This is what the Biden Administration hoped to address in announcing the promotion of unity and stability of families (Keeping Families Together) in June 2024. An immigrant married to a U.S. citizen on June 17, present in the country for at least ten years, and with no serious criminal history could apply to remain in the United States while completing his or her application to gain residency. That program is currently in the courts as a result of Texas v. Department of Homeland Security, Case Number 24-cv-306, which administratively stayed the Department of Homeland Security from granting parole in place under Keeping Families Together.

8

Immigrant victims may qualify for legal status.

Spouses or children of U.S. citizens or residents who suffer from family violence may qualify to “self-petition” and achieve legal status. These include same-sex marriages and common law marriages, and the victim may qualify for two years after divorce or death of the abuser. For family law practitioners, a

reference to family violence in a divorce decree or a suit affecting the parent child relationship involving an immigrant may provide important documentation to assist the immigrant in getting legal status as a result of the abuse.

An immigrant victim of serious crime in the U.S. who assists law enforcement in the investigation or prosecution of the crime may also qualify for legal status through a U visa.

A law enforcement certification is required to apply for this relief and may be signed by a federal, state, or local law enforcement officer; prosecutors; judges; family protective services; the Equal Employment Opportunity Commission; the Department of Labor; and other investigative agencies. Note: Even indirect victims of crime in the U.S. may qualify for a U visa, so an undocumented parent of a U.S. citizen/resident child who suffered victimization in the U.S. may qualify for legal status.3 Victims of human trafficking in the U.S. also may qualify for legal status through a T visa. It is important to point out that although smuggling and trafficking are not the same, it is possible for a smuggling case to turn into a human trafficking case based on circumstances such as holding the immigrant hostage, keeping his or her passport or other documents, forcing him or her to work while paying for room and board, etc.4

7

The system is not always fair or logical.

Many things influence individual immigration cases, including marital status, criminal history, and changes in country conditions or family circumstances, as well as changes in law and policy, judges, and U.S. Immigration and Customs Enforcement.

For example, it is possible for siblings in the same family to have mixed immigration status depending on the year they were born and the law of citizenship at the time. Immigration is further complicated by the Circuit cases that affect the immigrants in their region.

For example, New York and California have much more favorable immigration court outcomes than Texas, which is in the conservative Fifth Circuit. Immigration law can also be retroactive, a concept foreign to most practitioners. In 1996, for example, Congress radically expanded which crimes made an immigrant eligible for deportation, and Congress made these changes retroactive!

6

An immigrant may be a United States citizen and not even know it.

U.S. citizenship can either be acquired (at birth) or derived (on a date). Under certain circumstances, children may acquire U.S. citizenship from their parents, even if they were born abroad. These citizenship rules have changed many times over the years and are dependent upon which parent has legal status, whether the parents were married at the time the child was born, and the length of time the parent lived in the U.S. prior to the child’s

birth. Practice pointer for criminal attorneys— do not automatically presume that your client who says he or she has no legal status is not a U.S. citizen. It is possible, and it can be rewarding for an immigration practitioner to find a “hidden U.S. citizen” and meet the necessary requirements to prove legal status.

5

Abused, abandoned, or neglected children may qualify for legal status.

If a child (under age twenty-one in the federal code) is abused/abandoned/neglected

• Experienced, having conducted more than 25,000 mediations since 1989 with more than 850 years’ experience practicing law • Committed to the mediation process and devoted to the ethical practice of law • Covered by the AAM Member Insurance Group Policy, an arbitrator and mediator professional liability insurance Areas of Practice Appellate Bankruptcy Business/Commercial Civil Rights Condemnation Construction Consumer Education Employment & Labor Entertainment Family Farm & Ranch Health Care Insurance Intellectual Property International Medical Oil & Gas Personal Injury Professional Liability Real Estate Securities Taxation Title Insurance Wills, Trusts & Estates For more information, contact the local San Antonio Chapter. www.attorney-mediators.org/SanAntonioChapter Gary Javore - gary@jcjclaw.com Patricia O. Alvarez 888.413.6630 patricia@alvarezdr.com Michael J. Black 210.823.6814 mblack@burnsandblack.com Paul Bowers 713.907.7680 paul@ptbfirm.com John K. Boyce, III 210.736.2224 jkbiii@boyceadr.com Leslie Byrd 210.229.3460 leslie.byrd@bracewell.com Kevin Chaney 210.889.4479 kevin@kevinchaneylaw.com Debbie Cotton 210.338.1034 info@cottonlawfirm.net Michael Curry 512.474.5573 mcmediate@msn.com Aric J. Garza 210.225.2961 aric@sabusinessattorney.com Charles Hanor 210.829.2002 chanor@hanor.com

Recommended by Judges and Attorneys Gary Javore 210.733.6235 gary@jcjclaw.com Alex Katzman 210.979.7300 alex@katzmanandkatzman.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 210.710.4198 dan@naranjolaw.com Patricia Oviatt 210.250.6013 poviatt@clarkhill.com Jamie Patterson 210.828.2058 jamie@braychappell.com Diego J. Peña 817.575.9854 diego@thepenalawgroup.com Don Philbin 210.212.7100 don.philbin@adrtoolbox.com

Edward Pina 210.614.6400 epina@arielhouse.com Elizabeth “Sissy” Preston 713.412.1458 epreston@advmediation.com Richard L. Reed, Sr. 210.953.0172 rick.reed@steptoe-johnson.com Wade Shelton 210.219.6300 wadebshelton@gmail.com Richard Sparr 210.828.6500

rsparr@sparrlaw.net

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

November–December 2024 | San Antonio Lawyer® 15

(even in his or her home country) and is unable to reunify with at least one parent, a “suit affecting the parent-child relationship” state court order from a judge can be used for the child to self-petition (the same as the Violence Against Women Act) in order to obtain legal status.5 Practice pointer for family lawyers—never do an adoption for an undocumented child before checking with an immigration lawyer. While such an adoption is legal, it is nearly impossible for an adoptive parent to “give” that child his or her legal status, and the rules are very specific involving the Hague Convention and other complicated requirements that must be met prior to the child’s entering the U.S.6

4

A lawful permanent resident, or LPR, can be deported.

Once eligible, all LPRs need to apply for citizenship as soon as they qualify. Although LPRs are in the U.S. with permission, they may still be deportable or not allowed to return to the U.S. after a trip abroad, and they do not have all of the constitutional protections of a U.S. citizen. In what can only be considered one of the most tragic repercussions of our failed immigration system, tens of thousands of U.S. military veterans who have served our country, but who were born outside the U.S., have been deported after suffering posttraumatic stress disorder and having drug or criminal complications in their history.

3

Years in the United States does not equal legal status.

There is no affirmative application for immigrants to submit because they have been in the U.S. a specific number of years.

If immigrants find themselves in deportation proceedings before a judge in Immigration Court, they may qualify for cancellation of removal if they have been in the U.S. no less than ten years, can show good moral character, have not been convicted of a serious crime, and establish that hardship to a U.S. citizen or resident family member would result from their removal.7

and eighteen states have since passed similar common-sense measures. Immigrants are also afforded equal protection and equal pay under the law, and they have some constitutional protections such the right to legal counsel and the right against unreasonable search and seizure.8

1

Linda A. Brandmiller is an Immigration Attorney in San Antonio. She has served on the SABA Publications Committee and the Editorial Board for San Antonio Lawyer for decades.

What our client does not tell us may significantly affect his or her case.

While this is true in all areas of practice, it is most concerning when dealing with immigration issues, since partial or wrong information can result in life-long penalties, including deportation. When dealing with the undocumented immigrant, it is important for lawyers to know that the immigrant’s interactions with us may be influenced by language, culture, embarrassment, and fear. Even though it is a sensitive issue, it is important to know the immigration status of a client because of the many options available.

When in doubt, contact an established immigration attorney. The San Antonio Bar Association Referral list is a great place to start.

Bonus—Possible ways to prepare for “reform.”

Undocumented immigrants should not leave the country. They need to keep all receipts and pay taxes (regardless of immigration status, they get a free individual taxpayer identification number from the IRS to submit their taxes) in order to document time in the U.S. and good moral character. They need to learn to speak English and avoid crime.

If there is someone in the family who can petition them, it should be done now, before possible additional restrictions to family-based immigration are enacted.9

ENDNOTES The Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html.

2 U.S. Citizenship and Immigration Servs., Unlawful Presence and Bars to Admissibility, https://www.uscis.gov/legal-resour ces/unlawfulpresence-and-bars-admissibility.

3 U.S. Dep’t of Homeland Security, U Visa Immigration Relief for Victims of Certain Crimes: An Overview for Law Enforcement, (Feb. 2017) available at https://www.dhs.gov/sites/default/ files/2021-12/U-Visa-Immigration-Relief-forVictims-of-Certain-Crimes.pdf.

4 U.S. Dep’t of State, U.S. Laws on Trafficking in Persons, available at https://www.state.gov/j/tip/laws/.

5 U.S. Citizenship and Immigration Servs., Special Immigrant Juveniles, https://www.uscis. gov/green-card/sij.

6 U.S. Citizenship and Immigration Servs., Adoption, https://www.uscis.gov/adoption.

7 U.S. Citizenship and Immigration Servs., INA: Act 240A – Cancellation of Removal; Adjustment of Status, https://www.uscis.gov/ilink/docView/ SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-06349.html.

8 American Civil Liberties Union, Know Your Rights: Immigrants’ Rights, available at https:// www.aclu.org/know-your-rights/immigrantsrights.

9 Internal Rev. Serv., Individual Taxpayer Identification Number, available at https://www.irs.gov/ individuals/ individual-taxpayer-identificationnumber.

1

Save 20% to 40% on your E&O/Professional Liability Insurance with

Even undocumented immigrants have rights.

ATTORNEYS FIRST INSURANCE

Under HB 1403, otherwise known as the Texas Dream Act, undocumented immigrant students qualify for in-state tuition if they resided in Texas for at least three years before graduating from high school. Texas was the first state to pass a Dream Act in 2001,

Our specialization allows us to offer legal professionals better coverage at rates substantially lower rates than most competitors.

Call (866) 977-6720 or email sam@attorneysfirst.com for a fast & friendly quote.

Our Promise to you! We won’t waste your time preparing a quote if we can’t SAVE you significantly.

2

16 San Antonio Lawyer® | sabar.org

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

H

ins ig r O : 1 t r a P ent m p o l e v e D d an

ip-hop first began as a local New York phenomenon. While at its birth it was primarily a party-focused genre, it quickly evolved into a medium for the youth of the area to proclaim their feelings about their world, using four elements: “DJ-ing,” a method of manipulating music; “rapping,” using spoken word instead of singing, but still using lyricism to make one’s point; “breaking,” a unique manner of movement that seemed to defy the laws of physics by its extensive physicality; and “graffiti,” a distinct type of artwork that would be plastered on public buildings and that, at first, merely identified the artist but later transitioned into wonderful, colorful murals that would be displayed in galleries. A fifth element has ultimately been recognized as being an intrinsic part of hip-hop: “knowledge,” understanding that the words being said are imparting a significant statement of self so that the listener can understand the importance of the speaker’s point of view.

Not long after its initial development, however, the art became controversial, not just for what was being said, but also for how it was being created. Because the previous works of other artists were being used for the basis of the new projects, lawsuits arose. Although it could have been foreseen that those whose recordings had been used without permission would seek compensation, what could not have been predicted is just how adversely this new form would affect wellestablished copyright laws, basically obliterating the norms stemming from over a century ago. By the creation of a method of rating the content included within hip-hop songs, and the introduction of legislation to keep that content from condemning its creators and being used as evidence of crimes in judicial proceedings, hip-hop has left an indelible mark on United States law, just as it has made an imprint on the world as a whole.

By ileta! A. Sumner

The Origins of Hip-Hop

From where is the term “hip-hop” derived?

• From the “DJ Kool Herc” who threw the first hip-hop event; • From African American dances like “The Lindy Hop”; • From Afrika Bambaataa, a godfather of the genre; • From a guy riffing about his friend going marching in the army.

Actually, the term “hip-hop” can be traced back to all of the above.

On August 11, 1973—the date that is observed as the birth of hiphop—Cindy Campbell promoted and coordinated a back-to-school party that was to be hosted by her eighteen-year old brother Clive, a/k/a “DJ Kool Herc” at 1520 Sedgewick Ave. in the Bronx, New York City.

Kool Herc had developed a manner of extending the part of the song where the vocals would drop and the band would jam, known as “the break,” using two turntables to extend that portion of the song over and over. Because this was the most exciting part of the song, it was easy to get the crowd hyped and get them dancing. In order to extend this section even longer, DJs manipulated the vinyl records, using a rhythmic effect to skid the disk back and forth and produce a “scratching” sound that would drive the crowd wild.

What Kool Herc was doing was “DJ-ing”; the people who would usually do the hyping would be the “Master of Ceremonies” or the “MC.” Hence, the MC would make up a poem (usually on the fly) that would be spoken over the breaks created by the DJs, using vocal tones, inflection, dialect, not unlike the practitioners of “spoken word” art; however, the true roots of “rap” grew from the West African tradition of “griot”: the oral historians who wrote and performed to music to document the past and present conditions of their people. Therefore, the MCs would keep the crowd engaged, using unique rhymes that the November–December 2024 | San Antonio Lawyer® 17

crowd could remember and repeat, all the while keeping with the flow provided by the DJs. Once the DJs got into a groove, members of the crowd would take out their cardboard flats and begin dancing to the breaks; thus, the unusual spins on backs and heads as well as the acrobatic whirlwind twirls improvised by these dancers became “break dancing,” and the spinners, “b-boys” and “b-girls.” Their inspiration came from everywhere—from the recognizable arm-swinging and leg kicking moves of the Charleston and the ad-libbing dancing of the Lindy Hop (beginning in the 1920s) to the amazing, gravity-defying kicking flips of Bruce Lee. Then, when the DJ would abruptly STOP! the breakers would automatically freeze in a seemingly impossible pose, as if purposefully coordinated with the DJ, rousing cheers from the onlookers.

Yet music and dancing were not the only art forms contained within hip-hop. “Graffiti” became the visual art of the hip-hop scene. Teens would use brick walls and empty parked subway cars as their canvases, starting with spray painting their “tags” or symbols for their names, using two colors outlining their definitive bubble-like letters that would instill pride in the designers as they could be seen rolling through the city of New York announcing their presence to the world; thereafter, they progressed to painting scenes from underground comics and still life, not unlike Andy Warhol’s Campbell Soup renditions. Soon, the world caught on, as the tags expanded into oversized murals. Naturally, like any new style, the art world took notice, holding graffiti-inspired exhibitions as the mode spread worldwide. It did not take long for the manner of art to become a part of graphic designs as well as fashion – graffiti making the transition from New York streets to Wall Street to Fashion Week.

Some of the founders of hip-hop decided that the form should be used for more than just show. They felt the need to not only speak of pride

of self and the intrinsic worth within the Black community, but also to share the despair within the community and make the world take notice.

“Knowledge,” the fifth element of hip-hop, places great importance on claiming a stake in one’s own education. Afrika Bambaataa, the so-called “Godfather of Hip-Hop,” a former Black Spades gang warlord, graduated into a “prophet of reconciliation,” a heroic protagonist determined to preach the value of self-worth to a young audience. In the process, he has been deemed as one of the first to coin the term “hip-hop,” encouraging peace and unity through expressions of the hip-hop culture, introducing them to DJ-ing, rapping, break dancing, and graffiti art through his organization, the Zulu Nation. Bambaataa and Kool Herc, along with Grandmaster Flash, are considered the “Holy Trinity” of hip-hop.

In 1982, Grandmaster Flash, along with his group Grandmaster Flash and the Furious Five, is said to have created the first “conscious rap” record, “The Message.” With his distinct elocution describing the poverty, crime, and drugs engulfing ghetto life—and containing the memorable refrain, “Don’t push me ’cause I’m close to the edge. I’m trying not to lose my head, ha-ha-ha-ha! It’s like a jungle sometimes; it makes me wonder how I keep from going under”—he put a serious, “Afro centric” spin on what theretofore had been considered just a party genre. Though it’s been said that Keith “Cowboy” Wiggins, an MC with this group, jokingly referred to his friend who was going into the army as having to “hip, hip, hip, hop, hip” referring to the sounds of marching soldiers, Grandmaster Flash was earnest in his role as an MC. Stylistically, he was the first to expand the use of scratching, back spinning of albums, using his toes, elbows and fingers while he DJ’d; philosophically, he epitomized the young Black man who was stuck in deteriorating neighborhoods, filled with squalor and blight as “white flight” to the suburbs left behind Black and brown people to struggle

Family Law Specialist

Edgington *Kimberly A.Tim Whitten has practiced in family law since 1992.

kim@whitten-law.com He has been certified as a Family Law Specialist by

the Texas Board of Legal Specialization.

on

Let us help someone you know with their divorce. #CollaborativeDivorce #DivorceOnYourTerms

Adoption

Grandparent or Non-parent Rights

Collaborative Law

High-Asset Divorce

Modifications of Custody, Possession & Support

7500 Rialto Blvd, Bldg One, Suite 250, Austin, Texas 78735

whitten-law.com | info@whitten-law.com | (512) 478-1011 18 San Antonio Lawyer® | sabar.org

for a living. As businesses closed, economic opportunities dried up, and youths turned to the streets. Consequently, the emerging hip-hop movement revolutionized despair and racial tensions into creativity.

The Art of Sampling

Even though the 1970 self-titled spoken word debut album of “The Last Poets” is considered the first “rap” album, it was not until the Sugar Hill Gang debuted “Rapper’s Delight” in 1979 that hip-hop cracked the Top 40. During the previous year, the nation danced to “Good Times”

by Chic. Because that was a hit with which the public was familiar, when Sylvia Robinson, a former R&B singer and the owner of a practically bankrupt record label, attended a party where a DJ was rapping over the record, she took it as “a sign from God.” She searched for three inexperienced MC’s, who were not too ashamed to use lyrics they had heard others shout, and “I said a hip, hop, the hippie, the hippie; The hip hip hop and you don’t stop the rockin’” set the world on fire.

What Ms. Robinson did was introduce hip-hop to the masses. What she did NOT do was clear the portion of “Good Times”—the “sample” of the song with its very distinctive funky bassline—by either asking permission or seeking a license for its use. Due to this misstep, Niles Rodgers, guitarist and cofounder of Chic, and Bernard Edwards, the group’s bassist, threatened a lawsuit; instead, they settled for an undisclosed sum and credit on all records sold thereafter.

A good definition of “sampling” is repurposing a snippet of another artist’s music.

Not unlike the Sugar Hill Gang’s surreptitious use of Chic’s “Good Times,” some samples, such as the 1990 releases of Robert Van Winkle’s (a/k/a Vanilla Ice) lifting of the bassline of “Under Pressure,” by Queen and David Bowie, as well as Stanley Kirk Burrell’s (a/k/a MC Hammer) blatant rip-off of Rick James’ “Super Freak” (including the warbling of Motown group The Temptations and the saxophone solo of Danny LeMelle) were so obvious to the casual listener that there was no way for the hip-hop artists to justify their theft. Still, some uses of samples have been so sophisticated that it would be nearly impossible to discern their derivation.

An examination of Public Enemy’s twin masterpieces, “It Takes a Nation of Millions to Hold Us Back,” (1988) and “Fear of a Black Planet” (1990) shows how the complexity of sampling can make the application of current copyright law to the genre of hiphop seem antiquated and impractical. Public Enemy has become known for its powerful, staccato rapping delivery, forceful declarations proclaimed with the passion of a preacher, imparting knowledge on a naïve audience.

What adds to the dynamics of the words are the samples used to underscore their meaning.

At one point, the group collected myriad

sounds put together so furiously that they constitute a mélange inside the first ten seconds of one track, being described by one reviewer as “assembl[ing] deeply intricate grooves out of infinitesimal building blocks.” This “noise,” a combination of innumerable samples, only adds to the authority of the words being professed. ileta! A. Sumner, Esq. is a former President of the Bexar County Women’s Bar Association (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), litig7rij@aol.com.

November–December 2024 | San Antonio Lawyer® 19

SELECTED BIBLIOGRAPHY Education through Music, “A Brief History of Hip-Hop,” etmonline.org, https://etmonline.org/stories/hiphophistory/#.

George Varga, “Hip-hop at 50: It’s global impact has surpassed that of rock ‘n’ roll a generation earlier,” San Diego Union Tribune, August 6, 2023, 6:00 a.m. PT, https://www.sandiegouniontribune.com/entertainment/music/story/2023-08-06/hip-hop-at-50-global-impact-rivals-that-of-rock-nroll-a-generation-earlier.

“Hip-hop: A Culture of Vision & Voice,” The Kennedy Center, https:// www.kennedy-center.org/education/resources-for-educators/classroomresources/media-and-interactives/media/hip-hop/hip-hop-a-culture-ofvision-and-voice/ .

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

George Varga, “Hip-hop history: A timeline of key events in the music’s early decades,” San Diego Union Tribune, August 6, 2023, https://www. sandiegouniontribune.com/entertainment/music/story/2023-08-06/hiphop-history-a-timeline-of-key-events.

“Rap music is stylistically & lyrically diverse, representing a range of experiences & worldviews that characterize the multiple & changing voices among African American youth,” Timeline of African American Music – Rap/Hip-Hop, carnegiehall.org, https://timeline.carnegiehall.org/genres/ rap-hip-hop.

Juana Summers, Kat Lansdorf, Patrick Jarenwattanwnon, “Rapper’s Delight: How hip-hop got its first record deal,” npr, August 8, 2023, 5:23 p.m.

ET, https://www.npr.org/2023/08/08/1192750303/rappers-delight-howhip-hop-got-its-first-record-deal.

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

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

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

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

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

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

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

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

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

Erik Bodia, “Split Chords: Addressing the Federal Circuit Split in Music Sampling Copyright Infringement Cases,” 7 Pace Intell. Prop. Sports & Ent. L.F. 131 (2017), https://digitalcommons. pace.edu/cgi/viewcontent.cgi?article=1061&con text=pipself.

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

Tom Cole, “You Ask, We Answer: ‘Parental Advisory’ Labels – The Criteria and the History,” npr, October 29, 2010, 10:30 a.m.

EDT, https://www.npr.org/sections/therecord/2010/10/29/130905176/you-ask-we-answer-parental-advisory---why-when-how.

20 San Antonio Lawyer® | sabar.org

MEDIATION SERVICES PROMPT, AFFORDABLE DISPUTE RESOLUTION ™

CIVIL & FAMILY MEDIATION PARENTING COORDINATION PARENTING FACILITATION • 20+ Years’ Business Law & Int’l Business Experience • 20 Years’ Manufacturing & Construction Experience • 10 Years’ Family Law & Real Estate Experience

kevinchaneylaw.com Association of Family and Conciliation Courts Association of Attorney Mediators Texas Association of Mediators

210-889-4479

Fourth Court Update

Application of Spousal Maintenance Support Modification

By Justice Irene Rios

I

n a case of first impression, we held subsection 8.057(c)(1) of the Texas Family Code does not require the trial court to apply a modification of spousal maintenance support to all payments accruing after the date the motion to modify is filed.

Wallace v. Wallace, 690 S.W.3d 718 (Tex. App.—San Antonio 2024, no pet.); see also Tex. Fam. Code Ann. § 8.057(c)(1).

In Wallace, Husband was ordered to pay $1,150 per month for spousal maintenance in an Agreed Final Decree of Divorce signed on April 19, 2011. On November 6, 2015, after Husband retired and his annual income decreased, he filed a petition to modify spousal maintenance. In addition to seeking a modification, Husband asked the trial court to retroactively apply the modification to November 2015 and reimburse him for any overpayment of spousal maintenance from when he filed his motion to modify to when the trial court granted the modification.

The trial court granted a modification in 2019, but Husband filed a motion to reconsider the modification. In March 2022, after vacating the first modification order, the trial court held a second hearing on Husband’s modification motion. On April 14, 2022, the trial court granted a modification, ordering Husband to pay Wife $379.73 per month in spousal maintenance. The trial court declined Husband’s request to retroactively apply the modification to November 2015 under subsection 8.057(c), ordered the first modified payment due on April 1, 2022, and denied Husband’s request for reimbursement of alleged overpayments.

Subsection 8.057(c) authorizes a trial court to modify spousal maintenance “on a proper showing of a material and substantial change in circumstances that occurred after the date of the order or decree….” Tex. Fam. Code Ann. § 8.057(c). The statute provides the court: “(1) shall apply the modification only to payment accruing after the filing of the motion to modify; and (2) may not increase maintenance to an amount or duration that exceeds the amount or remaining duration of the original maintenance order.” Id.

On appeal, Husband argued the trial court erred when it did not retroactively apply the modification of spousal maintenance to payments after November 2015 because the word “shall” in subsection 8.057(c)(1) requires the trial court to retroactively apply the modification to all payments accruing after the filing of a motion to modify. Wife argued the trial court has discretion to apply the modification retroactively, but subsection 8.057(c)(1) prohibits the trial court from retroactively applying the modification to payments that accrued prior to the filing date of the motion to modify.

In determining whether the trial court erred when it declined to retroactively apply the modification, we applied rules of statutory construction to interpret subsection 8.057(c) (1). We “consider statutes as a whole rather than their isolated provisions.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). Here, subsections 8.057(c) (1) and (c)(2) are limitations on the trial court’s authority to modify spousal maintenance, not mandates on the trial court’s application of spousal maintenance modification.

“If it were the legislature’s intent to require the trial court to retroactively apply modification to every payment accruing after the motion was filed, it would have said so by removing the word ‘only’ and simply stating: ‘The court shall apply the modification to payment accruing after the filing of the

motion to modify.’” See Wallace, 690 S.W.3d at 724; see also Pedernal Energy, LLC v.

Bruington Eng’g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017) (“We must interpret the statute in a way that gives meaning to all its words.”).

The trial court may apply the modification to any payments accruing after the motion to modify is filed. Wallace, 690 S.W.3d at 724.

We did not deduce from the statute that the legislature intended to deprive the trial court of its discretion to determine on what date it may apply the modification—whether retroactive or not—so long as the modification is applied after the filing of the motion to modify. See id. at 724–25. Thus, we held the trial court did not abuse its discretion when it applied the modification to all payments accruing on and after April 1, 2022.

Justice Irene Rios has served on the Fourth Court of Appeals since January 2017. Justice Rios previously served as Judge of County Court at Law No. 10, in Bexar County, for fourteen years. Prior to her appointment to the bench, Justice Rios spent nine years in private practice. She is a Fellow of the Texas Bar Foundation and a Fellow of the San Antonio Bar Foundation, and she has served as a Special Master of major litigation.

Gallant Computer Investigative Services, LLC David T. Gallant Digital Forensics/Cell Tower Geolocation Mapping Cell Phone Records Analysis for MVAs Licensed Texas Private Investigator (A15633) Retired Federal Agent (AFOSI) Court Certified Expert Witness (Federal/State/Military)

(210) 271-2999 Titan Building 2700 NE Loop 410, Ste. 301, San Antonio, TX 78217

www.WhatsOnThePhone.com The Proof is in the Data™ November–December 2024 | San Antonio Lawyer® 21

Special Judge Trials Are an Alternative to Arbitration

By Paul T. Curl

M

ost lawyers are familiar with arbitration, which offers the opportunity to litigate a dispute privately and away from the courthouse. But are you aware that your case can also be tried by a “special judge” with many of the same advantages as arbitration—and some key differences?

Lawyers and their clients may find that trial by a special judge provides an attractive alternative to a trial at the courthouse or to arbitration.

Special judge trials are governed by Tex. Civ. Prac. & Rem. Code ch. 151. Parties who want a trial by a special judge, however, must have a pending civil or family law case filed in a district court, statutory probate court, or statutory county court (county court at law): On agreement of the parties, in civil or family law matters pending in a district court, statutory probate court, or statutory county court, the judge in whose court the case is pending may order referral of the case as provided by this chapter and shall stay proceedings in the judge’s court pending the outcome of the trial. Any or all of the issues in the cases, whether an issue of fact or law, may be referred.

Id. § 151.001. The statute makes no mention of referral of a case from a constitutional county court, in which you might find yourself if you are in one of Texas’s less-populated counties.

22 San Antonio Lawyer® | sabar.org

Like arbitration, a special judge trial can occur only if the parties agree to the process, and, like arbitration, a special judge trial is strictly nonjury. Section 151.002 of the Texas Civil Practice and Remedies Code requires requires all parties to agree to: (1) request referral by the court in which the case is filed; (2) state the issues to be referred; (3) state the time and place for the trial; (4) identify the special judge; (5) confirm that the judge has agreed to hear the case; and (6) state the fee to be paid to the special judge. Thus, the parties must not only agree to the process, but must also agree to the specific judge who will serve as special judge. If the parties cannot agree on the judge, then there will be no special judge trial. Because Chapter 151 provides no procedure for picking a special judge if the parties cannot agree on the judge, a special judge trial may not be suitable in highly contentious disputes in which the parties cannot agree on much of anything.

By contrast, in arbitration, either the parties’ agreement or the rules of an arbitration service—such as the American Arbitration Association (AAA) or JAMS—will provide a procedure for selection of the arbitrator.

If the parties can agree upon an arbitrator, all the better, but if the parties cannot agree, then an arbitrator can be selected for them through a neutral process, into which the parties have input, established under the rules of the arbitration service. An arbitrator may

have specific expertise that is valuable to the parties, such as in construction or securities law, or may not, and the parties will be stuck with the selected arbitrator.

Although anyone—even a non-lawyer— can serve as an arbitrator, not just anyone can serve as a special judge. A special judge must be a retired or former judge of a district court, statutory probate court, statutory county court, or appellate court. Tex. Civ. Prac. & Rem. Code § 151.003. (Again, the statute does not mention a constitutional county court.) A special judge must also have served at least four years as a judge; must have developed expertise in his or her area of specialty; must not have been removed from office or resigned while under investigation for discipline or removal; and must be current on continuing legal education. Id. Given these requirements, the pool of candidates qualified to serve as a special judge is relatively limited when compared to the pool of persons who can serve as an arbitrator.

If the parties agree on a special judge, they must then submit an agreed order to the court referring the case to the special judge and specify the issues that are being referred.

Tex. Civ. Prac. & Rem. Code § 151.004.

In Bexar County District Court, the order of referral logically should be presented to the Monitoring Court, since the parties will be removing the case from the regular trial docket. Because there is no limit on the issues

that can be referred, the order of referral can refer “all issues” in the case to the special judge for trial.

Chapter 151 speaks in terms of referring a “trial” to a special judge and does not directly address the question of whether pretrial matters—such as discovery disputes, motions to exclude expert witnesses, motions for summary judgment, and requests for injunctive and other pretrial relief—can also be referred to a special judge. The Bexar County District Court has, however, more than once referred all matters—including pretrial proceedings— to a special judge. Eventually, the question of whether this is allowable under Chapter 151 will be answered when a dissatisfied litigant appeals or seeks mandamus of a pretrial ruling by a special judge and challenges the special judge’s authority to rule on such matters.

A special judge, like an arbitrator, must be paid. The parties must split the cost of the special judge in equal shares. Tex. Civ. Prac. & Rem. Code § 151.009(a)(1). The statute neither says whether a special judge can charge more for a case with more parties, as mediators often do, nor limits the amount a special judge can charge the parties.

Chapter 151 requires that a record be taken down by a court reporter. Tex. Civ. Prac. & Rem. Code § 151.008. The parties in a special judge trial must equally share the cost of the court reporter, along with any other administrative costs. Tex. Civ. Prac. & Rem. Code § 151.009(a)(2). Since a special judge trial must begin as a pending court case, moreover, the only filing fee is the same fee that the plaintiff would pay to file any lawsuit at the courthouse. There are no administrative fees. If the parties have other “administrative” expenses, such as the cost to rent a location for the trial, they will be required to share those expenses equally.

By contrast, in arbitration, there is no record unless the parties agree to a record or—absent an agreement—one party is willing to pay for a record; and speaking of administrative costs, the costs imposed by AAA or JAMS just for handling the case can be exorbitant. Both require a filing fee that can run into thousands dollars, and in addition to the arbitrator’s fees, both AAA and JAMS charge administrative fees during the pendency of the arbitration proceeding.

Although, in arbitration, the arbitrator usually can reallocate the costs of the arbitration—including the arbitrator’s fees— according to the outcome of the arbitration, Chapter 151 has no provision for reallocating the cost of the special judge, the court reporter, or any other expense. As in any case

before an active judge, however, the special judge can award court costs, such as the filing and service fees. Costs that are unique to one party are borne by that party. Tex. Civ. Prac. & Rem. Code § 151.009(b).

The parties must agree upon the time and place for the trial before a special judge.

Tex. Civ. Prac. & Rem. Code § 151.002(4).

Trial is not to be held at the courthouse, and no public employee may be involved in the trial during regular working hours, “[u]nless otherwise ordered by a referring judge.” Tex. Civ. Prac. & Rem. Code § 151.010. Chapter

151 does not specify the possible grounds for allowing a trial by special judge at the courthouse, or with the assistance of a public employee during regular working hours.

Arbitration is private and not open to the public, but Chapter 151 does not make a trial before a special judge private, although sometimes a special judge is referred to as a “private judge.” In fact, nothing prevents a member of the public from attending a trial before a special judge, other than the fact that hearing and trial dates are not ordinarily publicized.

November–December 2024 | San Antonio Lawyer® 23

Pleadings and evidentiary documents used in an arbitration are not available to the public, but in a case referred to a special judge, pleadings, motions, and other documents are still filed with the clerk of the referring court and can be seen by the public. A party wanting to restrict documents from public view must follow Tex. R. Civ. P. 76a, just like a party in any other case filed at the courthouse and heard by an active judge. In arbitration, the rules of evidence and procedure are usually relaxed, but

not so in a trial before a special judge. In a trial before a special judge, the rules of procedure and evidence that apply in the referring court also apply before the special judge. Tex. Civ. Prac. & Rem. Code § 151.005. For all practical purposes, it is the same as a trial at the courthouse before an active judge, with the only difference being that a special judge cannot hold a person in contempt unless the contemptuous act occurred in the judge’s presence. Tex. Civ. Prac. & Rem. Code § 151.006.

NOW IS THE TIME TO LOCK-IN Guaranteed, Tax-free Rates!

Earning the trust of trial lawyers and their clients for over 20 years.

Carola M. Davis, CFS

Your trusted Settlement Planning Specialist with extensive background in litigation and financial services, for all types of legal proceedings.

Offering customized litigation solutions using top-tier funding products, including structured settlement annuities, to preserve government benefits, defer taxable income to allow offsetting deductions, and fund Special Needs, Minor’s, Spendthrift, and Plaintiff Recovery Trusts as well as structured installment sales for deferral of Capital Gains tax on Business and Real Estate transactions.

Personal Injury Product Liability Medical Malpractice Legal Malpractice Breach of Contract Defamation

Employment Sexual Harassment Attorney Fees* Punitive Damages Environmental Real Estate Sales

Disability Construction Business Buy-Outs Transactional Litigation Family Law

*Structured Attorney fees payable to the attorney or the law firm produce healthy rates of return with tax deferral that are protected from creditors (attorneys can structure their fees even if the client does not).

DAVIS SETTLEMENT PARTNERS The Attorney’s Indispensable Partner in Settlement Planning

Carola M. Davis, CFS

830.609.5555 cmdavis388@gmail.com www.DavisSettlementPartners.com

24 San Antonio Lawyer® | sabar.org

At the conclusion of the case, the special judge “must comply with the requirements for a verdict by the court.” Tex. Civ. Prac. & Rem. Code § 151.011. Chapter 151 is not clear about whether a “verdict” means findings of fact and conclusions of law, though, or whether “verdict” simply means the court’s judgment.

The verdict must be delivered within sixty days after the conclusion of the trial, “[u]nless otherwise specified in an order of referral.” If the referring court does not authorize a later verdict—and the special judge does not timely issue a verdict under the default rule—then the court may grant a new trial. Chapter 151 does not specify the possible grounds for allowing the special judge’s verdict to be delivered more than sixty days after the trial concludes.

In most instances, the result of an arbitration is not appealable. This is a doubleedged sword of arbitration—the prevailing party prefers an unappealable outcome, whereas the non-prevailing party may want to appeal. By contrast, a special judge’s verdict can be appealed just like any other case tried at the courthouse before an active judge. Tex. Civ. Prac. & Rem. Code § 151.013. Any appeal “is from the order of the referring judge’s court.” Id. This language has been construed to mean that the referring court must sign off on the judgment of the special judge, and that appellate deadlines run from the date of the referring court’s signature. Rainier Income Fund I, Ltd. v. Gans, 501 S.W.3d 617, 622 (Tex. App.—Dallas 2016, pet. denied). The fact that a judgment rendered by a special judge can be appealed reveals another important difference between arbitration and trial before a special judge—an arbitrator is not strictly bound to follow the applicable substantive law; however, since the ruling of a special judge can be appealed, it necessarily follows that the special judge is bound to follow the procedural and substantive law that applies to the case.

An arbitrator’s ruling cannot be immediately enforced. If the losing party refuses to comply with the arbitrator’s award, then suit must be filed to confirm the award and convert it into a court judgment that can be enforced by legal process, such as a writ of execution. The judgment of a special judge, on the other hand, is a judgment that can be enforced according to the same rules and timeframe that apply to any other court judgment.

As mentioned, a special judge trial—like arbitration—can occur only by agreement of the parties. Arbitration, however, is usually something that the parties have agreed to in a contract signed long before any dispute arises.

Can the parties agree by contract that any dispute will be resolved by trial before a special

judge, in the same manner that the parties can stipulate in a contract that they will submit any dispute to arbitration? The fact that the parties must agree to the specific judge would make this complicated, but one solution might be to provide, in the contract, a method of selecting a special judge. If the parties agree on a method for selecting a special judge, and that method is strictly followed, would a court consider the selected judge to be one that the parties have agreed upon? Until someone tries this and a court rules on it, the answer is “maybe.”

Can the parties to an arbitration agreement opt, instead, for a special judge trial? Definitely. If the parties agree to waive arbitration, agree to seek a special judge trial, and agree upon the judge, someone must first file a lawsuit (preferably before anyone has paid a filing fee to AAA or JAMS), then the parties must submit an agreed order referring the case to the special judge.

The point here is not to pick on arbitration.

For many, the enhanced privacy, relaxed adherence to the rules and substantive law, and lack of an available appeal are attractive features of arbitration; and in certain cases, having an arbitrator with specialized expertise may be a big advantage. Trial before a special judge, though, offers a viable alternative to arbitration or to litigating at the courthouse. The parties must agree to it, and to the judge, but the advantages of a special judge trial should be persuasive to lawyers and their clients. A special judge trial offers the certainty of knowing what judge will try the case, the structure of the Texas rules governing evidence and procedure, and the flexibility of scheduling hearings and the trial at whatever times and dates to which the parties and the special judge may agree— including times and dates when an active judge may not ordinarily be available. It offers more privacy than a trial at the courthouse, albeit less than arbitration. A special judge trial is no more expensive, and likely less expensive, than arbitration. It also offers, for better or for worse, a right of appeal to anyone who is dissatisfied with the outcome of the case. A special judge trial is worth considering and discussing with your clients.

Paul Curl is the managing shareholder of Curl Stahl Geis, PC, specializing in business and commercial litigation. He is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization.

Experience premium, modern banking customized for you.

Broadway’s Private Banking team provides customized lending solutions and financial services curated specifically for your personal and business needs.

Since 1941, Broadway Bank has been an integral part of Texas, evolving into one of the largest privately-owned banks in the Lone Star State with more than $5.5 billion in assets and $3 billion in Wealth Management.

Speak with a Private Banker today. broadway.bank/private • (210) 681-0747 Private Banking at Broadway Bank is subject to eligibility qualifications. Eligibility criteria may include financial, professional, and/or account verification and evaluation. Subject to change without notice.

Member FDIC. Rev.09/24 / #1495477535

November–December 2024 | San Antonio Lawyer® 25

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.

Summary Judgment Kier v. Wal-Mart Stores Tex., LLC, SA-23CV-00991 (Pulliam, J. – August 20, 2024).

Wal-Mart filed a motion for summary judgment on patron’s premises liability claim based on a patron’s allegation that she slipped on a green substance. The court denied the motion, holding Wal-Mart could not rely on the patron’s knowledge of how long the substance was on the floor to show Wal-Mart’s actual or constructive knowledge. Further, the court disagreed that the patron’s deposition testimony established that the green substance was “open and obvious” such that Wal-Mart had no duty to warn of its presence. The patron’s testimony simply confirmed that the store was well lit and that had she been looking at the floor when walking she could have seen the substance. What the patron knew or should have known is not the test to determine whether a condition objectively created a danger that was open and obvious as a matter of law; rather, the court needed evidence to assist it in determining whether the subject danger presented by a condition would have been apparent or appreciable to an ordinary, reasonably prudent person.

Motion to Dismiss Clower v. Winnebago Indus., Inc., SA-24CV-00406 (Biery, F. – August 30, 2024).

Although Local Rule CV-7(d)(2) allows a court to grant motions as unopposed if no response is filed, a court may not grant a motion to dismiss solely on a failure to respond. Accordingly, despite a lack of response, the court considered the defendant’s motion to dismiss for forum non conveniens on its merits. The warranty forming the basis of the plaintiffs’ claims contained a forum selection clause. The court concluded that the clause was mandatory and that the presumption favoring enforcement of such clause was not so unusual 26 San Antonio Lawyer® | sabar.org

or against public policy for the court to retain the case. The court granted the motion to dismiss without prejudice.

Attorneys’ Fees; Costs Under 42 USC § 12205 Johnson v. Callanen, SA-22-CV-00409-XR (Rodriguez, X. – August 27, 2024).

The plaintiffs sued an elections administrator and Bexar County, and after considering competing motions for summary judgment, the court issued a permanent injunction requiring, among other things, that the County provide an electronic remote accessible vote-by-mail system (the “RAVBM”) for blind and visually impaired voters. The plaintiffs requested reconsideration of the court’s order granting some, but not all, of their attorneys’ fees and expenses, alleging manifest error. The court agreed that it failed to consider the availability of costs under 42 U.S.C. § 12205 and thus considered whether plaintiffs’ postage, legal research expenses, PACER fees, and travel expenses are necessary litigation expenses. The court then awarded $2,896.98 in travel expenses, as those expenses were incurred for court appearances, and denied all other claims for reimbursement, finding the plaintiffs failed to demonstrate why those costs were necessary. The plaintiffs also claimed the court erred in failing to consider their attorneys’ years of experience. The court applied a median hourly rate which accounts for varying years of experience, and further, the plaintiffs failed to demonstrate the reasonableness of the rate they sought. Finally, the court rejected the argument that it was improper to reduce the attorneys’ fees awarded by 1/3 under an “ultimate impact” rationale (as the RAVBM was only used once), reasoning the Johnson factors are a non-exhaustive list of considerations by which a court may determine whether a fee award is reasonable.

Motion for Leave to Amend; FRCP 16(b)(4) Pruneda v. Bexar Cty., No. SA-22CV-00104 (Bemporad. H – July 29, 2024) (adopted by Pulliam, J. – August 23, 2024).

In this 2022 class action suit, the court considered the plaintiffs’ Partial Motion for Judgment on the Pleadings, or, in the alternative, Motion for Partial Summary Judgment as to Liability (“Partial Motion for Judgment”) and the defendant’s Motion for Leave to Amend (“Amendment Motion”). Rather than answering the suit, the defendant had filed a motion to compel arbitration, which was denied. The parties proceeded to litigate until January 2024, when the plaintiffs filed their Partial Motion for Judgment, pointing out that the defendant had never filed an answer. The defendant both responded to the motion and filed a motion for leave to file an answer. The court originally granted the motion in part to allow the defendant to answer the plaintiffs’ claim and held in abeyance the defendant’s request to add new affirmative defenses. Later, the defendant, now represented by new counsel, filed the Amendment Motion, seeking to raise affirmative defenses. Because the Amendment Motion was filed after the deadline in the scheduling order for seeking to amend pleadings, the question of whether to permit amendment was governed

by FRCP 16. Analysis of whether a party has met the Rule 16 “good cause” standard involves wholistic consideration of: (1) the explanation for the failure to meet the deadline; (2) the importance of the modification to the broader litigation; (3) potential prejudice to the nonmovant; and (4) whether a continuance would cure any such prejudice. The court separated the defenses in the defendant’s proposed amended answer into three categories: (1) exemption defenses, (2) defenses not addressed in the Amendment Motion; and (3) remaining defenses (good faith; limitations; credit/

set off; limitations/release as to certain opt-in plaintiffs). As to the exemption defenses, the defendant’s former counsel’s failure to answer due to inadvertence coupled with its current counsel’s unawareness thereof resulted in the first—and most important—factor weighing heavily against the defendant. Noting that modifications such as the proposed exemption defenses may have a dispositive impact on liability, the court considered such modification important to the broader litigation. Third, allowing amendment would prejudice the plaintiffs by essentially restarting the action. Finally, although a continuance would allow the plaintiffs to address the newly raised defenses allowing the untimely amendment would incurably cost the plaintiffs delay and additional expense, and would risk promoting “dilatory litigation tactics[,]” especially when the defendant filed its original answer two years late, and failed to seek an extension of the pleading deadline.

The court concluded that because this two-year delay was a result of inadvertence and not of circumstances beyond the defendant’s control, the defendant failed to show good cause to grant leave to amend. The court denied the Amendment Motion to the extent the defendant sought to add defenses not addressed in the Amendment Motion. As to all other defenses, while the first factor weighed against the defendant’s inclusion of good faith and limitations defenses, the other three factors weighed in its favor, as “the prejudice to Plaintiffs is greatly lessened; and there is no obvious need for a continuance to address the question at trial, since Plaintiffs will already be seeking to show a willful, non-good-faith violation to the jury.” The plaintiffs had failed to address the defendant’s remaining defenses in its objection to the Amendment Motion. The court granted the defendant leave to amend its answer to include all but the exemption defenses.

Allowing the amendment partially mooted and partially warranted denial without prejudice of the plaintiffs’ Partial Motion for Judgment as that motion had relied on the lack of answer and affirmative defenses.

Motion to Dismiss; FRCP 12(b)(6); Fraud; FRCP 9(b) Clouse v. Success Sys., LLC, No. SA-23CV-01380 (Bemporad. H – August 6, 2024) (adopted Garcia, O. – August 27, 2024) A consumer, sued a credit repair organization under the CROA and the TCSOA based on the organization’s failure to improve the plaintiff’s credit score as promised, and sub-

sequent failure to refund the several hundred dollars the plaintiff had paid for the defendant’s services. The defendant moved to dismiss parts of the plaintiff’s claims under each count under FRCP 12(b)(6), alleging that said parts sound in fraud yet were not pled with the particularity required by FRCP 9(b). Noting that Rule 9(b) is applicable to “all averments of fraud,” regardless of whether the averments are part of or necessary to state a claim, the court first determined that the plaintiff’s statutory claims sounded in fraud. Specifically, the court concluded that CROA §§ 1679b(a)(3) and 1679b(a)(4), as well as TCSOA §§ 393.304(1) and 393.305, all sound in fraud. The court then considered whether the plaintiff’s pleadings met the FRCP 9(b) particularity standard.

The court held that for the most part, the plaintiff had complied with Rule 9(b) but failed to meet that particularity standard as to one detail: the identity of the agent for the defendant alleged to have made the fraudulent statements upon which the plaintiff relied. The court thus denied in part and granted in part the motion to dismiss, allowing the plaintiff to amend to add the identity of the agent.

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.

We S o l v e P r o b l e m s • Exit Planning and Succession Planning • Tax Planning and IRS Representation • Forensic Accounting • Expert Witness (business damages, bankruptcy, business divorce, etc.)

Steven Bankler, CPA, Ltd. Steven Bankler CPA, PFS, Cr.FA, CFF, CGMA

210. 6 91 .3 1 3 3

bankler.com

November–December 2024 | San Antonio Lawyer® 27

Best Bandera Live Water!!! Giant Cypress Trees! One-of-aKind!

Texas Best Brazos River!!!

Water! Water! Water!

100± Ac. Bandera Cnty. - Giant hill-top, rock bluffs, fishing lake, cypress-lined creek, 2 dams, 2 more spring-fed creeks, 2 wells, exotics, big neighbors, paved access, more!

763.33± Ac. Palo Pinto Cnty. - Mins. to Lone Camp! Hunting, fishing, giant trees, rock cliffs, both sides of spring-fed creek, 16 ponds, your own Brazos River beach, wildlife, more!

Texas Best Live Water-Burnet, TX! Rare Opportunity!

Texas Best New Braunfels!

Both Sides of Creek, Spring!

155± Ac. Burnet Cnty. - Minutes to Burnet or Lampasas.

Both sides of live water, gushing springs with crystal-rock bottoms, 3BR/2BA home, well, electricity, tons of wildlife!

178± Ac. Comal Cnty. - 3BR/3BA main house, 2,500± s.f.

2nd home/office, workshop/equipment barn, outdoor cooking/entertaining area, ranch road system, Wildlife taxes.

Jeff Soele • 210-705-4013 • jeff@texasbestranches.com 28 San Antonio Lawyer® | sabar.org

Refreshed Lake, Resort Pool, New Landscaping! Minutes to Comfort, Kerrville and Center Point! $500K PRICE DROP!!!

51± Ac. Kerr Cnty. - Mins. to Kerrville! Electric gate, paved access, hill-top 3BR/2BA home overlooking manicured grounds & private lake! 1BR/1BA studio/guest house, swimming pool, 30’ x 30’ cooking pavilion w/fireplace, diesel generator, both sides of seasonal creek, 2 wells, piped water, pole barn w/workshop, motor home barn, livestock pens, giant trees, great privacy!

Boerne/Comfort Rare - Unique Paradise Island “Live Water”!!!

166± Acres Kendall Cnty - 1,800± ft of Big Joshua Creek, 7+BR/5.5BA main house, guesthouse, guest cabin, treehouse, pavilion w/fireplace, outdoor kitchens, tennis court, more!

Game-Fenced Recreational Paradise!

894± Ac. Walker County - Minutes to Huntsville and only 45 minutes to Houston! Hunting, fishing, boating, horses or waterfowl... 6BR/6BA lodge, 3 stocked lakes, 2 wells, 30± species of exotics, large covered barn, more!

Visit us online at: www.TexasBestRanchesForSale.com November–December 2024 | San Antonio Lawyer® 29

Transform your legal work with

Lexis+ AI

™

Search, Summarize, and Draft Learn more LexisNexis.com/AI

30 San Antonio Lawyer® | sabar.org

Law Office of Bobby Barrera Past President of the san antonio Bar association

Available for Criminal Case Consultation and Referrals 2016 to 2024

Criminal Law, State & Federal Honored by his colleagues as one of San Antonio’s

“Top DWI Defense Lawyers” for 2014, 2017 to 2023

“Voted #1 DWI Defense Attorney” for 2022

“Top Five Criminal Defense Lawyers” for 2017, 2018

Voted as one of San Antonio’s

“Best Criminal Defense Lawyers” for the last 21 years

“San Antonio Best Family Lawyers” for 2017

Officing at

The Barrera Firm P.C. 424 E. Nueva Street San Antonio, TX 78205

as published in SA Scene Magazine

40 Years of Jury Trial Experience

Areas of Consultation

DWI Cases, Intoxication Manslaughter Sexual Assault-Domestic Violence Assault Family Violence Protective Orders Murder and Homicide Case

• Invoking the 5th Amendment in Civil Cases?

• Protective Orders in Family Law Cases?

• Parallel Civil/Criminal Fraud Allegations?

• DWI/Manslaughter Civil Personal Injury Defenses?

• CPS Child Abuse Investigations?

| 31 bobbybarreralaw@gmail.com (210) 227-7372 www.bobbybarrera.com November–December 2024 San Antonio Lawyer®