San Antonio Lawyer, September/October 2021

® Official Publication of the San Antonio Bar Association

Lawrence Morales, II

A Natural Leader for the San Antonio Bar Association

September–October 2021

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contents ON THE COVER 6 Lawrence Morales, II: A Natural Leader for the San Antonio Bar Association

By June Moynihan

FEATURES 12 Texas Bar Foundation Honors Allan K. DuBois as an Outstanding 50 Year Lawyer

By Sara Dysart

19 Justice Ruth Bader Ginsburg: A Champion of Gender Equality

By Harry L. Munsinger, J.D., Ph.D.

6 Lawrence Morales, II photographed for San Antonio Lawyer by Mewborne Photography

DEPARTMENTS

BAR BUSINESS

27 Fourth Court Update

25 San Antonio Bar Foundation Gala 2021 Honorees

By Justice Irene Rios

28 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

September–October 2021

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San Antonio Lawyer® 3

®

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Ex Officio Lawrence Morales, II Chellie Thompson

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OFFICERS / DIRECTORS President Lawrence Morales, II President-Elect Donna McElroy Treasurer Steve Chiscano Secretary Patricia "Patty" Rouse Vargas Immediate Past President Dave Evans

4 San Antonio Lawyer® | sabar.org

Directors (2021-2023) Kacy Cigarroa Tiffanie Clausewitz Grant McFarland Jaime Vasquez Directors (2020-2022) Charla Davies Charles "Charlie" Deacon Loraine Efron Nick Guinn Executive Director June Moynihan

STATE BAR / SA BAR FOUNDATION State Bar of Texas Directors Tom Crosley Santos Vargas

San Antonio Bar Foundation Chair Lawrence Morales, II

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

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Lawrence Morales, II A Natural Leader for the San Antonio Bar Association

By June Moynihan

Cover and article photography by Mewborne Photography shot on location at the McNay Art Museum in San Antonio.

6 San Antonio Lawyer® | sabar.org

“How can you not be romantic about baseball?”

—Michael Lewis

Moneyball: The Art of Winning an Unfair Game

L

awrence Morales, II’s dream job growing up was to play major league baseball. His father, attorney Lawrence Morales, Sr., says of his son: “As early as he could, he was throwing the ball. By age five, he was batting. I was also passionate about baseball, so it was something that we could share.” The draw of baseball for father and son is eloquently expressed in Butterly Winter, the 2011 novel written by W.P. Kinsella, the author of Shoeless Joe : “[P]roperly played, baseball consist[s] of mathematics, geometry, art, philosophy, ballet, and carnival, all intertwined like the mystical ribbons of color in a rainbow.”

The siren song of the game ensnared the entire family. Melissa “Missy” Morales Fletcher, Lawrence’s sister and fellow San Antonio attorney, confirmed, “We were a baseball family. It was a year-round devotion.” Missy, who is six years older than Lawrence, recalls: “Once I got my driver’s license, I was enlisted on the driving crew to get my brother to practice and games, too. I have many memories of doing homework on the bleachers.”

“I played all the time, and if I wasn’t playing a game, I was training.

My dad was my baseball coach,” Lawrence explains, and he practiced every day, including game days, even if just for ten minutes. One Super Bowl Sunday, waiting for the football game to start, Lawrence remembers that his dad summoned him for some catch, noting, “No one else is practicing right now.” That lesson—to train and be prepared— was instilled in Lawrence at a very young age.

Lawrence always had an interest in the science of excellence. His father remembers his son’s dog-eared copy of Harvey Dorfman’s book The Mental Game of Baseball—A Guide to Peak Performance. Dorfman is a sports psychologist who introduced more modern techniques of mental skills coaching and treatments to boost an athlete’s mental health wellness. Lawrence Sr. traces much of his son’s exceptional academic performance in college and law school to his early adoption of Dorfman’s lessons and techniques. Lawrence learned early that accomplishments were worth the hard work required. As Tom Hanks’ character in A League of Their Own famously sputtered at a frustrated and defeated Geena Davis, “It’s supposed to be hard. If it wasn’t hard, everyone would do it.”

After a distinguished high school baseball career playing for MacArthur High School in San Antonio, Lawrence earned a baseball scholarship to the NAIA Division II Missouri Valley College. It was February 1998. Lawrence was a freshman, and he was set to leave class early (again) to get on a bus for a double header. His English teacher, Professor Jones, stopped him to say, “You’re really bright. And you’ve got your priorities all wrong.” She was someone who did not buy into Lawrence’s MLB dream and thought he was wasting his talents.

Lawrence deeply reflected on her message and credits Professor Jones for forcing him to look at what he was giving up to chase baseball.

That same double header for the Missouri Valley Vikings required a four-hour drive to play the Mineral Area College Cardinals in frigid temperatures topping out at 10º. After dreaming of a professional

The Morales family (L-R) Felicia, Lyla, Lawrence, Marissa, and Sofia

baseball career since childhood, Lawrence found himself keeping warm between innings by huddling around the garbage-can fire that the Cardinals had kindly placed next to the visitors’ dugout. With the words of Professor Jones worming their way through his head, he recognized that this was an unlikely path to the major leagues, and the following week Lawrence applied to the University of Texas.

Several weeks later, the Minnesota Twins invited Lawrence’s college team to play their Double-A team in Fort Meyers, Florida, during Spring Training. When Lawrence and his dad arrived, they observed hundreds of professional players scattered across a dozen fields. That day, Lawrence turned a double-play in front of Tony Oliva, a Twins coach, who happened to be one of his dad’s favorite players, but Lawrence was not signed to a professional contract. In The Natural, Bernard Malamud wrote, “We have two lives; the one we learn with and the one after that.”

With Professor Jones’ insight into his true talents and the results of the Spring Training game, Lawrence turned toward a new chapter in his life.

That night, Lawrence accepted his invitation to attend the University of Texas.

“If you don’t know where you are going, you might wind up someplace else.”

—Yogi Berra

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San Antonio Lawyer® 7

Lawrence started his finance studies at the Red McCombs Business School and the following summer traveled to Spain for a study abroad program. While touring the Museo Nacional del Prado in Madrid, a cute girl approached him, pointed to his UT baseball cap, and asked in English, “Do you go to UT?” She introduced herself as Marissa and informed Lawrence that she was also a UT student, traveling with a friend to Rome with a layover in Madrid. The two struck up a conversation. Lawrence did not have a chance to get her last name before she disappeared.

As fate would have it, the cute girl turned up as a classmate in two of Lawrence’s classes in the fall semester. Lawrence immediately recognized her as the girl he had met in Madrid and reminded her of their encounter. He quickly learned that Marissa Barrera was not only in the business school, but she was also the daughter of San Antonio lawyer, Roy Barrera, Jr.

As fate would have it, the cute girl turned up as a classmate in two of Lawrence’s classes in the fall semester. Lawrence immediately recognized her as the girl he had met in Madrid and reminded her of their encounter. He quickly learned that Marissa Barrera was not only in the business school, but she was also the daughter of San Antonio lawyer, Roy Barrera, Jr. A few weeks later, the Red River Showdown (the rivalry game between UT and the University of Oklahoma, played in Dallas) was scheduled, and according to tradition, a large group of students took a road trip to Dallas to support the team. Marissa and Lawrence ran into each other throughout the weekend, and the rest, they say, is history. “He was a breath of fresh air,” says Marissa. “College dating is fraught with a lot of bad dates. And he just really had his head on straight.”

By graduation, they had both accepted jobs in finance. Marissa went to Dallas, Texas, as a credit analyst for Comerica, and Lawrence went to Neenah, Wisconsin, for a coveted job as a financial analyst at KimberlyClark. Shortly after starting her job, Marissa determined that a career in finance was not for her. Her twin brother, Mark, was applying to law school, and Marissa decided that she would like to study law, too. Their older brother, Roy III, was attending Baylor Law School and spoke highly of the program, so Marissa applied and was accepted there.

Lawrence and Marissa were building their frequent flier miles traveling between Dallas and Neenah when she told him she was scheduled to start law school in 2002. She knew she was tethered to Waco for the next three years. Marissa explains, “It was so hard to be long distance. Every time we visited, it was like my heart was being pulled out of my chest when I had to leave Wisconsin or drop him at the Dallas airport.”

Lawrence had similar feelings about his job and being apart. He was scheduled to visit Marissa in Dallas over Memorial Day weekend in 2002. He had planned a day trip to a nearby museum and was attempting to reprise the day they met in Madrid. With Missy’s help, Lawrence worked it out with the museum staff to replace a painting’s plaque with his marriage proposal to Marissa, and it nearly did not go as planned when she walked quickly past the painting. He insisted that she really look at the painting and read the plaque, and she obliged begrudgingly, until she got to the proposal and happily accepted.

For many, a grand romantic gesture includes champagne and roses.

For Lawrence, it was secretly taking the LSAT and applying to law school. After his marriage proposal, Lawrence revealed that he would start law school just one quarter after Marissa began (Baylor Law is on a quarter system) and that they would again be living in the same city.

“Self-discipline is a form of freedom. Freedom from laziness and lethargy, freedom from the expectations and demands of others, freedom from weakness and fear—and doubt.”

—Harvey Dorfman The Mental Game of Baseball— A Guide to Peak Performance 8 San Antonio Lawyer® | sabar.org

(L-R, top) Missy welcomes baby brother Lawrence; Taekwondo champion, age 5; Missouri Valley College Baseball, freshman year; MacArthur High School Baseball, senior year; (L-R, bottom) Father-Son Trip to Game 6 of 1995 World Series; UT-Austin graduation, with sister Missy; Marissa and Texas Cowboy Lawrence at a UT-Austin game

While in law school, Lawrence performed exceptionally well as an award-winning member of the renowned Baylor Moot Court and Mock Trial Teams. He also served as an Executive Editor of the Baylor Law Review. His credentials landed him a federal clerkship with Judge Priscilla Owen of the United States Court of Appeals for the Fifth Circuit after graduation.

Dean Bradley Toben of Baylor Law remembers Lawrence as a student and remains friends with him through the alumni network. “Lawrence has that rare combination of intellect, savvy, people skills, maturity, and work ethic that has put him in a position to excel in any endeavor in which he is involved,” Dean Toben said. “His winsome personality, combined with these personal attributes, make him a stand-out leader.”

Such kind words elicited an audible eyeroll from Marissa, “Oh, the faculty loved him! Lawrence was teacher’s pet,” she exclaims jokingly.

“He enjoyed law school because he was so good at it! The rest of us had t-shirts made that said, ‘Baylor Law, Where Fun Goes to Die,’ but he was having a great time, and it showed in his performance.”

Another law school classmate, Brandon Barchus, recalls, “Lawrence was the law student we all wanted to be. He worked super hard and was really smart.” He continues, “And he remains so likeable because he is without ego. When we are at Baylor Law alum events, it is occasionally revealed that Lawrence was valedictorian of our law class. If Lawrence is within earshot, he’ll shoot back ‘Well, we weren’t a very smart class.’

And I laugh, too, until I remember that I was in that class with him.”

Brandon practices law in Houston and knew that, if he ever needed co-counsel in San Antonio, it would be Lawrence. Brandon got that chance in 2015, when he and Lawrence represented twenty-nine investors defrauded by Brian Alfaro, CEO of Primera Energy, and won

the case with an $8-million award. Then it got even crazier when they found themselves raiding Mr. Alfaro’s house with ten federal agents to enforce the judgment. The legal team is just now finalizing the last bits to close out the case.

Brandon reveals, “My practice is mostly oil and gas law. I always knew that Lawrence was the go-to guy for evidence, but I got to see it in action. He really does have all the Texas Rules of Evidence in his head. If a problem comes up, he knows the objection, the rule number, and why it applies. He is really, really impressive.”

And this is not something new or previously unrecognized. Lamont Jefferson, currently at Jefferson Cano, was a partner at Haynes and Boone, where Lawrence worked after his Fifth Circuit clerkship.

Lamont recalls, “We tried a case together early on in his career, and by the middle of the trial, the judge was asking Lawrence about the rules of evidence.” Another Haynes and Boone partner, Laura O’Donnell, agrees, “Lawrence is an evidentiary whiz. I have never met anyone with a stronger command of the rules of evidence.”

“A person always doing his or her best becomes a natural leader, just by example.”

—Joe DiMaggio September–October 2021

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San Antonio Lawyer® 9

Lamont Jefferson, who was the 2006-07 SABA President, notes, “Lawrence’s passion for the law is second to none—and it shows in his scholarship, in his service to the bar, and in his devotion to his clients. In the few years that I was honored to work with Lawrence, I am quite confident that I learned far more from him than I taught.” Dean Toben concludes, “The San Antonio Bar Association now knows what we have known since Lawrence first came to Baylor Law School. He makes us so proud!”

10 San Antonio Lawyer® | sabar.org

As an attorney at Haynes and Boone, Lawrence was lucky to try a case about once a year, which is typical for trial lawyers at large law firms. In 2012, Marissa and her father-in-law happened to be preparing for a civil trial together. Meanwhile, Lawrence was lamenting that he would be missing out on an opportunity to try a case with his father and wife. Lawrence discussed with Marissa that he wanted to go out on his own. Marissa was then five months pregnant with their third child, and while she was slightly apprehensive about the timing, she completely understood the appeal of presenting cases to judge and jury because she is similarly wired. Lawrence quickly set out on his own and was able to join the case that his father and Marissa were working on before the trial began. Marissa recounts, “He did the jury selection and cross examination. He was in trial lawyer heaven.” They won the case, and they have never looked back.

Shortly after opening The Morales Firm, P.C., Lawrence and his dad thought it was time to persuade Missy to join the family business. Her practice had always been defense work, but they wanted her to join them doing plaintiff’s work. “I needed some convincing, but Lawrence has always been really good about nudging me outside of my comfort zone,” admits Missy. “I have never regretted accepting his challenges.”

Lawrence also nudged Missy to start running. She had just turned forty, and Lawrence was training for the Rock ‘n’ Roll half marathon, which was six months away. He encouraged her to sign up for the half

Another law school classmate, Brandon Barchus, recalls, “Lawrence was the law student we all wanted to be. He worked super hard and was really smart.” He continues, “And he remains so likeable because he is without ego.”

marathon and promised that he would run with her. Despite never being much for organized sports, Missy discovered that she loved running and training for a race. Now, she runs an average of fifteen miles a week and runs a race once a year as a training motivator. “Lawrence’s challenges have changed the way I view work and exercise in a powerful way that I didn’t see myself doing. My brother helps me see myself the way he sees me, and it is such a gift.”

“To focus on matters beyond our control is to misdirect energy, waste time, and doom us to frustration and failure.”

—Harvey Dorfman The Mental Game of Baseball— A Guide to Peak Performance

Due to the untimely passing of SABA president-elect Dawn Finlayson in February 2021, Lawrence is stepping up to the SABA president position without the traditional preparation year. In honor of Dawn, he has absorbed some of her projects into his own president’s projects and has worked doubly hard to ensure that the leadership succession is smooth. Lamont Jefferson, who was the 2006-07 SABA President, notes, “Lawrence’s passion for the law is second to none— and it shows in his scholarship, in his service to the bar, and in his devotion to his clients. In the few years that I was honored to work with Lawrence, I am quite confident that I learned far more from him than I taught.” Dean Toben concludes, “The San Antonio Bar Association now knows what we have known since Lawrence first came to Baylor Law School. He makes us so proud!”

June Moynihan is the Executive Director of the San Antonio Bar Association.

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Texas Bar Foundation Honors Allan K. DuBois as an Outstanding 50 Year Lawyer

By Sara Dysart

Surrounded by their children, Jeff and Becky Fralik, Andy and Kirsten DuBois, and Chris DuBois, Allan and Pam proudly exhibit the Texas Bar Foundation Oustanding 50 Year Lawyer Award.

T

he Texas Bar Foundation honors Texas attorneys by giving annual awards created for certain categories of achievement. The Foundation’s fellows nominate attorneys, and the trustees of the Foundation review the nominations and vote for the recipients. It is truly an honor to be a recipient of a Texas Bar Foundation award.

One of the most coveted Texas Bar Foundation awards is the Outstanding 50 Year Lawyer Award—given to attorneys who have practiced law for at least 50 years and who have adhered to “the highest principles and traditions of the legal profession and service to the public.” The inaugural Outstanding 50 Year Lawyer Award was given in 1974 to Judge W. St. John Garwood of Austin. Since 1993, the Texas Bar Foundation has expanded this recognition to honor up to five attorneys each year. The 2021 Outstanding 50 Year Lawyer Award was given to four past State Bar Presidents: Harriet Ellan Miers from 12 San Antonio Lawyer® | sabar.org

Dallas, Kelly Frels from Houston, Terry O. Tottenham from Austin, and San Antonio’s Allan K. DuBois.

The San Antonio Bar’s Favorite Son Allan does not meet the political definition of a “favorite son” whose electoral appeal is based upon his native state rather than his political views. Rather, Allan is considered by many to be the San Antonio Bar’s Favorite Son because his contributions to our bar and community are as “big as Texas” and have extended throughout the state. San Antonio attorneys know Allan as past president of the San Antonio Bar Association and join all Texas attorneys who know Allan as past president of the State Bar of Texas and as champion for the Texas Lawyers Assistance Program. The Texas Bar Foundation’s Oral History about Allan further reveals who Allan DuBois is and why so many consider him to be the San Antonio Bar’s Favorite Son.

Son Influences Father’s Military Career Allan was born in his parent’s hometown of Green Bay, Wisconsin. Married immediately after high school, his parents were young when Allan was born. With seven sisters and one brother, Allan is the oldest of nine children.

Allan’s father, an accountant at a paper mill, was drafted into the Army during World War II and became a member of the Military Police Corps.

An event in Allan’s life that he rarely shares was a critical factor in his father making the Army his career. Allan was famous before he was one year old, evidenced by many newspaper clippings saved by his mother.

During a routine medical checkup, the family doctor noticed that Allan had a growth or tumor which turned out to be cancer. Because his dad was in the Army, the Army provided treatment. Allan’s mom took him by train to Sloan Kettering Institute in New York City, where the doctors successfully operated on him at the age of eight months.

Allan’s competence, excellent mentorship, and tireless advocacy continue to let others be the recipient of his good work and life of service.

Roland Johnson Harris Finley & Bogle, P.C. Cindy Johnson Past Trustee of the Texas Bar Foundation Fort Worth

It was at the end of the war. The Army flew his dad home from Germany to join Allan and his mother in New York. Allan’s story became a “feel good” story at the end of the war—young officer returns home to be with sick son. Allan’s parents did a tour supporting military service and the purchase of war bonds. Allan’s mother kept a scrapbook about these events. She was also surprised by the reaction of others when she shared that the cute baby in her arms had cancer. People would shrink back, as though they thought that the cancer might spread through contact. Because of potential future medical treatments linked to Allan’s cancer, his father extended his two-year commitment to the Army to a career of thirty years, retiring as a Colonel.

An Outstanding 50 Year Couple, Allan and Pam DuBois.

Father Influences Son’s Military Career Allan and his family lived in Fort Ord, California; Munich, Germany; Augusta, Georgia; and Yokohama, Japan, before moving to San Antonio, where his father was stationed at Fort Sam Houston. After arriving in San Antonio, two more DuBois children were added to the family, Paul and Trisha—joining sisters Kathy, Mary, Barbara, Diane, Joan, and Tina.

The spread in the siblings’ ages is evidenced by Trisha and Paul serving as the flower girl and ring bearer in Allan and Pam’s wedding.

When the Marianist Catholic brothers, who taught Allan at St. Joseph International School in Yokohama, learned that his family was moving to San Antonio, they paved the way for Allan to be accepted to Central Catholic High School, where he was involved

Allan sincerely cares about others. His service to others through the Texas Lawyers Assistance Program, and outside that program, clearly evidences that. In my judgment, his support and advocacy for TLAP and the lawyers it serves alone merits the designation of Outstanding 50 Year Lawyer.

Thomas C. Riney, Partner Riney & Mayfield LLP, Attorneys and Counselors, Amarillo, Texas

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Almost every entry on his resume describes a personal, professional, or charitable commitment or recognition that Allan has made or received and confirms the ideals of discipline and accomplishment his life has come to exemplify.

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UT Law classmates, Past Presidents of the State Bar of Texas,and Recipients of the Texas Bar Foundation Outstanding 50 Year Lawyer Award: Kelly Frels, Terry Tottenham, and Allan DuBois

in ROTC. Allan was a Cadet Lieutenant Colonel in one of the two brigades. He wanted to join the Army and be a military officer just like his dad. Allan applied for an Army ROTC scholarship, a Navy scholarship, and to all the military academies, but the military academies turned him down based upon his physical. Even though Allan was cancer-free, his prior medical condition disqualified him from being accepted to any military academy.

Selecting the University of Texas, Allan qualified for a ROTC scholarship, which paid tuition and books for four years, but not room and board. Tuition was only $50 a semester. He was the Brigade Commander of the Army ROTC and a Distinguished Military Graduate of the University of Texas.

Instead of going into the Reserve Officer Training Corps, Allan was awarded a Regular Army commission. It was 1967 and the Vietnam War was raging when Allan heard, “Congratulations, you’re now an infantry officer!” But there was more: “Allan, you have been accepted under the Army’s diversionary program to go to law school.” The Army not only paid the law school tuition, but also provided medical, post exchange, and commissary privileges. Every summer Allan reported to Fort Sam Houston in uniform for his summer job—basically a law clerk in the office of the Staff Judge Advocate.

14 San Antonio Lawyer® | sabar.org 2_4x4_9in_TLIE Ad Campaign 2020_SanAntonioLawyer_120120.indd 12/1/20 4 12:02 PM

A Winning Team— Allan and Pam Allan and Pam married the summer before Allan started law school. In the span of just a few months, Allan graduated from UT, was commissioned into the United States Army, married the love of his life, and started law school. Allan and Pam made new friends during law school, including his co-honorees for the Outstanding 50 Year Lawyer Award: Terry Tottenham and Kelly Frels. Many of the married students were financially challenged.

They would bring their lawn chairs to someone’s driveway to socialize and grill hot dogs and hamburgers. There was probably plenty of beer available.

Upon graduating from law school, and after pulling a U-Haul across the country with Pam and their two sons, Captain DuBois reported to JAG School in Charlottesville, Virginia. Faced with decisions regarding assignments after JAG School, Allan and Pam elected to move to Washington, D.C., where Allan was a Commissioner to the Army Court of Review for a year and then a lawyer in the Defense Appellate Division.

Even though Captain DuBois did the work of a Major for the last year and half of active duty and was awarded the Meritorious Service Medal on the last day of active duty, he was not

Allan celebrates with his many friends from the State Bar Board of Directors, the Texas Young Lawyers' Association Board of Directors, and the Texas Lawyers Assistance Program.

The Association of Attorney-Mediators (AAM) San Antonio Chapter Experienced, having conducted more than 25,000 mediations since 1989 with more than 850 years’ experience practicing law Committed to the mediation process and devoted to the ethical practice of law Covered by the AAM Member Insurance Group Policy, an arbitrator and mediator professional liability insurance

promoted to Major. The Army was downsizing, and promotions were limited. If he had been promoted, Allan might have stayed in the Army to serve as a Staff Judge Advocate in the criminal division of the JAG Corps.

Return to Texas!

Instead, Allan and Pam decided to return to Texas. Interviewing in Dallas and Austin, Allan’s top priority was “to try cases and be in front of juries.” Allan did not want to be a transaction attorney, not even for the Dallas Cowboys.

When Allan came to San Antonio, he contacted several law firms, including Lang, Cross, Ladon, Boldrick and Green.

The senior trial partner was Paul M. Green.

Paul was an Army Reserve Officer JAG, who taught international law at the JAG school in Charlottesville and had served in the Army in Paris. He and his wife came to Washington, D.C., to interview Allan and Pam. They met at the swimming pool at Fort Myers Officers’ Club. Allan and Pam had their four children—Chris, Andy, Lisa, and Becky—in tow. As the kids played, the adults had drinks—that was the interview.

Paul invited Allan to San Antonio to meet the other members of the firm. In San Antonio, Paul took Allan to the Plaza Club, where he received a warm San Antonio welcome, along

Areas of Practice Appellate Bankruptcy Business/Commercial Civil Rights Condemnation Construction Consumer Education Employment & Labor Entertainment Family Farm & Ranch Health Care Insurance Intellectual Property International Medical Oil & Gas Personal Injury Professional Liability Real Estate Securities Taxation Title Insurance Wills, Trusts & Estates

For more information, contact the local San Antonio Chapter. www.attorney-mediators.org/SanAntonioChapter Gary Javore - gary@jcjclaw.com Recommended by Judges and Attorneys John Boyce 210.736.2224 jkbiii@boyceadr.com Leslie Byrd 210.229.3460 leslie.byrd@bracewell.com Michael Curry 512.474.5573 mcmediate@msn.com Allan DuBois 210.227.3106 akd@akduboislaw.com John Franco, Emeritus 210.865.8105 jjfrancotx@sbcglobal.net Aric J. Garza 210.225.2961 aric@sabusinessattorney.com Charles Hanor 210.829.2002 chanor@hanor.com Danielle L. Hargrove 210.313.8811 dlh@hargroveadr.com Ronald Hornberger 210.734.7092 rhornberger@pg-law.com Gary Javore 210.733.6235 gjavore@sbcglobal.net

Jerry King 210.771.0359 jking@beerkinglaw.com Andrew Koch 210.598.0714 andrew@aklandm.com Daniel Kustoff 210.614.9444 dkustoff@salegal.com J.K. Leonard 210.731.6358 jkleonard@namanhowell.com Cheryl McMullan, Emeritus 210.824.8120 attyelder@aol.com Dan Naranjo 210.580.6068 dan@naranjolaw.com Patricia Oviatt 210.293.8730 poviatt@cokinoslaw.com Jamie Patterson 210.828.2058 jamie@braychappell.com Diego Pena 817.575.9854 diego@thepenalawgroup.com Don Philbin 210.212.7100 don.philbin@adrtoolbox.com

September–October 2021

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Applause for the Texas Bar Foundation!

The Texas Bar Foundation was formed in 1965, thanks to the efforts of its Charter Members—255 attorneys who pledged to make charitable contributions and support the Foundation’s mission. It is the largest charitably funded bar foundation in the nation. Under the leadership of Executive Director Andrea Stone, the Foundation solicits charitable contributions and provides funding to enhance the rule of law and the system of justice in Texas, especially for programs that relate to legal assistance for the underserved, the administration of justice, ethics in the legal profession, the encouragement of legal research, publications and forums, and education of the third branch of government. Texas Bar Foundation, “About Us,” TEXAS BAR FOUNDATION at “Who We Are,” https://txbf.org/about-us/ (last visited July 7, 2021).

The Texas Bar Foundation is governed by a Board of Trustees, comprised of attorneys and non-attorneys, and chaired this year by Wendy Burgower of Houston. San Antonio attorneys Diana Geis, Andy Kerr, and Sylvia Cardona currently serve as trustees.

There is a separate slate of fellows’ officers, chaired this year by Carlos Eduardo Cardenas of El Paso.

Each year, nominations committees in each State Bar District nominate one-third of 1% of Texas attorneys

to become fellows. Fellows are nominated for membership “because of their dedication to the administration of justice and high professional standing among their peers.” Fellows agree to contribute $2500 to the Texas Bar Foundation, which can be paid over a ten-year period. Upon full payment of this commitment, fellows become “life fellows.” Life fellows who continue to make annual contributions become “sustaining life fellows.”

Grants are made possible by the generosity of fellows and charitable gifts from law firms and individuals throughout the state. Since its inception, the Foundation has awarded more than $22 million in grants to 1,628 charitable organizations in Texas. The 202021 fiscal year marked the sixth successive year that the Foundation awarded at least $1 million to Texas nonprofits. The trustees of the Texas Bar Foundation have approved a grant budget of $1,280,000 for the year 2021-22.

The Texas Bar Foundation’s awards are given at its Annual Dinner, which takes place on the Friday night in June immediately following the State Bar of Texas Annual Meeting.

The Texas Bar Foundation’s website highlights the various awards and their recipients and provides information about the Foundation.

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with an offer to join the law firm for less money than he was making as a Captain in the Army. After lots of soul searching, Allan and Pam knew that they wanted to be back in San Antonio with both sets of parents, Colonel and Mrs. Blakely and Colonel and Mrs. DuBois. So that is how Pam and Allan and their four children moved back to San Antonio—go figure! Another factor might have been the fact that Pam’s parents, Colonel and Mrs. Blakely, played bridge with the firm’s senior partner, Bernard (“Beb”) Ladon. Do you think they talked about how Colonel and Mrs. Blakely wanted their daughter and grandchildren in San Antonio?

The Rest of the Story In the Oral History, Allan himself recounted the story of how he came to practice law in San Antonio, but the rest of the story about Allan DuBois was filled in by those who have had the privilege of practicing law and serving the community in San Antonio with him for many years. Allan’s service to the bar and community starts with Pam. When you get Allan’s commitment to a project, program, committee, or event, you also get Pam’s commitment. Everyone who interacts with Allan also gets to know and love Pam. Pam does not step into the limelight, but she makes sure that Allan is there on time and prepared.

I know this because I have watched Pam in action for over thirty years.

When I think about the criteria for this award, I imagine a seasoned attorney that is proficient in the profession, a legend that is an advocate for clients, and a mentor that is giving of his talent and time. Put all that together, and Allan DuBois fits the criteria perfectly.

Cindy V. Tisdale The Law Office of Cindy V. Tisdale, PLLC Grandbury, Texas

When Allan was sworn in as State Bar President, his entire family was there. His grandchildren led the pledge of allegiance, and a very young granddaughter sang the national anthem. They were front and center on the dance floor at the Presidents’ Party.

Allan and Pam’s daughter, Lisa, died during Allan’s term as State Bar President. Allan and Pam have raised Lisa’s three children and are active in the lives of all fourteen of their grandchildren. Surrounded by family is the only life Allan knows. He and Pam are also close to Allan’s eight siblings and their children and grandchildren.

Allan is an experienced trial attorney.

He was a partner with the law firm that brought Allan and Pam to San Antonio until the early 2000’s when the lease ran out. Attorneys in private practice know the possible consequences of an expiring lease. It can mean a commitment to the law firm for another five+ years, or it can bring the firm to an abrupt end. This happened to Allan. When the music stopped, Allan and Paul Green moved to a new location to start their twoperson law firm. Allan continued to practice law with Paul M. Green, a trial attorney

icon, until Green’s passing in 2006. Allan still grieves the loss of his great friend.

Allan escalated his bar service. He joined the San Antonio Bar Association Board of Directors, moving up through elected positions to SABA President while working on State Bar committees. His bar leadership resulted in his election as President-Elect of the State Bar of Texas in 2014.

While Allan’s leadership positions are extremely noteworthy, they do not fully demonstrate Allan’s “all in” approach. He worked with SBOT President Terry Tottenham to start Texas Lawyers for Texas Veterans.

Allan did not just help to start the program, though. He also participates at every veteran’s clinic offered in Bexar County and many more pro bono clinics. Allan’s dedication to the men and women who have served our country through military service is undaunted. I know firsthand of Allan’s enlisting younger attorneys to help move furniture for a veteran so that the veteran could comply with a lawsuit settlement.

Allan DuBois is perhaps best known for his commitment to recovery, including his tireless work with the Texas Lawyers’

Assistance Program (“TLAP”) and Lawyers Concerned for Lawyers. Allan shared his own story of recovery and message of hope as he campaigned for SBOT President-Elect, wrote about it in his President’s Messages in the Texas Bar Journal, and now includes it as part of TLAP’s wellness presentations. Allan has made it okay for Texas attorneys to seek help and to talk about their recovery so that others will seek help, too.

Allan DuBois—accompanied by Pam and revered by his children, grandchildren, greatgranddaughter, friends, and colleagues—is rightfully considered by many to be the San Antonio Bar’s Favorite Son! Sara Dysart, a sole practitioner, is Board Certified in Commercial Real Estate Law. She received the Texas Bar Foundation 2020 Terry Lee Grantham Memorial Award.

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Justice Ruth Bader Ginsburg A Champion of Gender Equality

By Harry L. Munsinger, J.D., Ph.D.

J

oan Ruth Bader was born March 15, 1933, in Brooklyn, New York, into a Jewish family. Her religious beliefs remained a fundamental part of her identity. Fighting gender discrimination against both women and men would later become a hallmark of her career. Her mother was diagnosed with cancer when Ruth entered James Madison High School, and died just before Ruth graduated. Ruth’s mother had told her to be independent, something few girls were encouraged to do at that time. Ruth was offered a scholarship to attend Cornell

University, where she met her future husband, Martin Ginsburg. Ruth was a member of Phi Beta Kappa and the top female student in her class. She studied hard and made excellent grades. Martin, an Officer in the Army Reserves, was called to active duty and the Ginsburgs spent two years in Oklahoma, where they welcomed their first child, Jane.

After Martin completed his active duty service, the family moved to Boston. Martin returned to Harvard Law School, now joined

by Ruth a year behind him. Ruth served on the Harvard Law Review, but she transferred

to Columbia Law School during her final year to be with Martin, when he took a job with a New York firm. Ruth graduated at the top of her class, but no law firm would hire her because she was a mother. Gerald Gunther, a constitutional law professor at Columbia, pressured Judge Edmund Palmieri of the United States District Court for the Southern District of New York to offer the young Ruth Bader Ginsburg a clerkship in 1959. After the clerkship, Ginsburg worked as associate director of Columbia Law School’s Project on International Procedures, and she was invited

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San Antonio Lawyer® 19

to co-author with Anders Bruzelius a book entitled Civil Procedure in Sweden. When she returned to New York, Ginsburg taught civil procedure at Rutgers School of Law and spoke at international conferences about her work.

The Women’s Rights Project In 1972, Ginsburg joined the Women’s Rights Project of the American Civil Liberties Union (“ACLU”). She established three goals for the project: (1) educating the public; (2) changing discriminatory laws; and (3) filing cases to stop gender discrimination. She attacked gender discrimination in education, credit, mortgages, housing, and military service. Rather than trying to end all gender discrimination at once, Ginsburg developed a strategy of overturning specific state statutes, one at a time.

For years, feminists argued that the United States needed a Constitutional Equal Rights Amendment (ERA) that said: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The ERA was introduced in 1923, but it did not make it out of Congressional committee during those early years. When the ERA was finally

passed by Congress and sent to the states for ratification, not enough legislatures approved the amendment, so it failed. Ginsburg reasoned that, rather than trying to amend the Constitution, "it would be more productive to argue that women are people and already have a right to equal protection under the Fourteenth Amendment, which promises equal treatment for all people. With this new strategy, Ginsburg began looking for cases that could be brought under the Equal Protection Clause of the Fourteenth Amendment.

Reed v. Reed. One of the first cases Ginsburg argued before the United States Supreme Court was the 1971 case of Reed v. Reed, which challenged an Idaho law that explicitly preferred men when selecting who should administer the estate of a person who died without a will. In a unanimous decision, the Supreme Court ruled that Idaho’s dissimilar treatment of women violated the Equal Protection Clause of the Fourteenth Amendment. Once she had convinced the Supreme Court that women should be treated the same as men, Ginsburg set out to find a case where men were the victims of gender discrimination, so that she could apply the doctrine of equal treatment to men as well as women.

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Moritz v. Commissioner of Internal Revenue. Ginsburg’s husband Martin found the ideal case of gender discrimination against men in Moritz v. Commissioner of Internal Revenue, and Ruth convinced the ACLU to fund the case. The facts were simple: Moritz, an unmarried male, needed a caretaker for his invalid mother so that he could continue working as an accountant. He could have taken a tax deduction for the expenses for a caretaker if he had been a woman, a widower, divorced, or had a wife who was incapacitated, but the Tax Code prohibited men who had never been married from taking the deduction. Moritz deducted $600 for the care of his invalid mother anyway, but his claim was denied. Ginsburg lost the case in Tax Court, but appealed to the United States Court of Appeals for the Tenth Circuit, which ruled in 1972 that section 214 of the Internal Revenue Code was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it discriminated against Moritz on the basis of his gender. The Supreme Court denied review, leaving the Tenth Circuit's opinion intact.

Frontiero v. Richardson. In Frontiero v.

Richardson, a 1973 case, Ginsburg convinced the Supreme Court that not allowing military dependent status to the husband of a female Air Force officer was unconstitutional gender discrimination. The wives of male service members were automatically afforded “dependent” status, which allowed them to access benefits such as housing and medical care, but female service members had to prove that their male spouses were actually financially dependent before receiving those benefits. In practice, this meant that male and female officers were compensated differently, based solely on their gender.

Other Gender Discrimination Victories.

In 1975, Ginsburg argued in Weinberger v. Wiesenfeld that denying Social Security benefits to a husband who had never worked was contrary to the Equal Protection Clause of the Fourteenth Amendment because women who had never worked were eligible for Social Security benefits from their husbands. The Supreme Court agreed. In Califano v. Goldfarb, a 1979 case, she asserted before the Supreme Court that the Social Security Administration could not deny survivor benefits to widowers based on a different standard than the one applied to widows. She won that case. Finally, in Duren v. Missouri, a 1979 case, she argued successfully that women should not be treated differently from men in selection for jury duty.

The Supreme Court ruled that automatically excluding women from jury duty on their

own request violated the Sixth and Fourteenth Amendment guarantees of a jury chosen from a cross-section of the community.

D.C. Circuit Judge Ginsburg In 1978, Congress passed the Omnibus Judgeship Act, increasing the number of federal judges in America and allowing women and minorities to be appointed to many of the new judgeships. Ginsburg was spending 1977-78 as a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University in Palo Alto, California, working on an article about her battles against gender discrimination. On April 14, 1980, President Jimmy Carter nominated her to the United States Court of Appeals for the District of Columbia Circuit in Washington, D.C., and she was confirmed by the Senate.

During her tenure on that court, Ginsburg formed close friendships with conservative judges Robert Bork and Antonin Scalia and earned a reputation as a moderate jurist.

Ginsburg served thirteen years on the Court of Appeals for the D.C. Circuit until, on June 14, 1993, President Bill Clinton nominated her to the United States Supreme Court. During her testimony before the Senate Judiciary Committee, Ginsburg refused to answer questions about her views on the constitutionality of executions because she felt the issue might come before the Court, and she did not want to prejudice a case. This tactic established the “Ginsburg precedent,” which has been used by Supreme Court nominees ever since.

United States Supreme Court Justice Ginsburg As a Supreme Court Justice, Ginsburg always wore a jabot (an ornamental ruffle) with her judicial robes during oral argument.

Supreme Court experts soon noticed that Ginsburg wore different jabots depending upon whether she was in the dissent or in the majority of the cases being announced. When she dissented, she wore a black jabot with gold embroidery and faceted stones. When she was in the majority, she wore a crochet yellow and cream jabot with crystals, which had been a gift from her law clerks.

Perhaps the most surprising friendship of two Supreme Court Justices was between Ruth Bader Ginsburg, a liberal feminist, and Antonin Scalia, a died-in-the-wool conservative. Even though they were generally on opposite sides of legal arguments and Supreme Court opinions, they genuinely liked each other. Ginsburg found Scalia intelligent and amusing, and he returned the compliment by referring to her as an intelligent and

considerate woman. They shared a love of opera and people who could make them laugh. They got along because they never talked legal or political issues when they were together. Ginsburg’s friendship with Scalia did not extend to some of the other conservative Supreme Court Justices.

Key Ginsburg Opinions for the Majority Reed v. Farley. Ginsburg’s first authored Supreme Court opinion concerned a criminal defendant’s right to a speedy trial. Soon after she joined the Court, Justice Ginsburg authored a five-to-four majority opinion in Reed v. Farley, a 1994 criminal case in which Reed appealed his conviction because the trial was not held within 120 days after his arrival in a new jurisdiction. The Court concluded that failure to hold Reed’s trial within the 120day window was not relevant because he failed to object to the delay and suffered no harm as a result.

Thompson v. Keohane. Ginsburg’s next authored opinion was Thompson v. Keohane, a 1995 case in which the Court considered whether a state court’s determination that Thompson was not “in custody” when he confessed was “a finding of fact, warranting a presumption of correctness, or a matter of law calling for independent review in federal court.” Thompson had confessed to Alaska state troopers that he had murdered his wife, and he was convicted based on his tape-recorded confession. He challenged the conviction to a federal court on petition for writ of habeas corpus. The State argued that deciding whether Thompson was “in custody” at the time he confessed was a factual determination and not subject to review by a federal court. However, in a 7-2 decision, the Supreme Court held that “whether a suspect is ‘in custody,’ and therefore entitled to Miranda warnings, presents a mixed

Photo credit: The Hollywood Archive, Alamy Ruth Bader Ginsburg, 2016 portrait (Supreme Court of the United States).

question of law and fact qualifying for independent review,” not a presumption of correctness.

United States v. Virginia. Three years after she joined the Court, Ginsburg authored the 1996 majority opinion in United States v. Virginia, a case involving gender discrimination by Virginia Military Institute (“VMI”). At issue was a state court ruling that VMI’s male-only admission policy was unconstitutional and an offer by the State of Virginia to create the Virginia Women’s Institute for Leadership as a

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San Antonio Lawyer® 21

parallel program open only to women. The state court had approved the plan to offer a separate women’s program at VMI, but the United States appealed to the Supreme Court, arguing that a women-only school does not satisfy the Equal Protection Clause of the Fourteenth Amendment. In a 7-1 decision authored by Justice Ginsburg, the Court held that a separate but equal program for women at VMI was unconstitutional.

In this case, Justice Thomas recused himself because he had a son attending VMI, and Justice Scalia dissented.

Stafford Unified School District v.

Redding. In 2009, Justice Ginsburg joined an 8-1 majority opinion in Stafford Unified School District v. Redding, which held that school administrators overstepped their authority when they ordered that a thirteen-year-old girl be strip searched for drugs. The young girl was allowed to wear only her undergarments while a female officer searched her person for drugs. Prior to the Court’s issuing its decision, Ginsburg gave an interview in which she stated that the male Justices could not understand how traumatic it could be for a thirteen-year-

22 San Antonio Lawyer® | sabar.org

old girl to be strip searched because they had never been a thirteen-year-old girl. Ginsburg's position as the only woman on the Court at the time was described as “poignant,” and this interview was used an example to advocate for more diversity on the bench. Ultimately, the Court ruled that the search was unreasonable under the Fourth Amendment, and that Redding's suit against the school could proceed, although she could not sue the persons who had ordered the strip search in their individual capacities.

Key Ginsburg Dissents Ginsburg disliked writing dissents because that meant she had failed to convince four other Justices of her legal theory about a case. However, when it was not possible for her to join the majority because she disagreed fundamentally with majority’s legal reasoning, Ginsburg’s only option was to write a strong dissent that might change the legal community’s thinking in the future.

She reasoned that sometimes a Justice has to stop arguing with her colleagues and begin educating the public and the legal community

by writing a well-argued dissent. Her most famous dissent was in Bush v. Gore.

Bush v. Gore. Bush v. Gore placed the Presidency of the United States into the hands of the Supreme Court. The Presidential election of 2000 was so close that it came down to a handful of votes in Florida, and the political fighting ended when the United States Supreme Court halted the state-wide Florida vote recount, effectively handing the election to George W. Bush. The Court could have refused to hear the case, leaving the decision to the state Supreme Court, but the Justices voted to accept the case. The Court ruled that the Florida recount violated the Equal Protection Clause of the Fourteenth Amendment because different counties in Florida were using different criteria when counting votes and that violated Bush’s civil rights.

The decision in Bush v. Gore was 5-4, with Ginsburg writing one of the four dissents. She argued that federal courts routinely defer to state high courts’ interpretations of their own laws and should have followed that precedent in this important case because deference to state courts is at the core of federalism. She accused the conservative Justices of being hypocrites by abandoning states’ rights when that tactic suited their political agenda.

Gonzales v. Carhart. Three years later, Ginsburg authored a significant dissent in an abortion case. The Partial-Birth Abortion Ban Act was signed into law in 2003, and Dr. Carhart, who performed partial-birth abortions, sued to stop the law from taking effect. He argued that the act would ban many abortions and, therefore, place an undue burden on a women’s right to privacy. A federal district court agreed and ruled the Act unconstitutional. The government appealed to the Eighth Circuit, which agreed with the lower court and ruled the Act unconstitutional. The case went to the United States Supreme Court in 2007, which ruled 5-4 that the Partial-Birth Abortion Ban Act was constitutional and did not place an undue burden on a woman’s right to an abortion because the Act applies only to a specific, narrow type of abortion performed near the end of a pregnancy.

Ginsburg wrote a passionate dissent, arguing that the Partial-Birth Abortion Ban Act placed unreasonable restrictions on a woman’s right to privacy. She stated that the Act’s restrictions limited a woman’s ability to determine her own life course and enjoy full citizenship. Ginsburg argued that

the majority’s assumption that women are emotionally fragile and subject to depression and regret after having had an abortion was an outdated idea that had been discredited by modern science. She asserted the Act was an effort to chip away at the right to privacy which has been upheld by the Supreme Court and is central to the lives of women.

Shelby County v. Holder. In Shelby County v. Holder, a 2012 case, Ginsburg dissented when the majority ruled that part of the Voting Rights Act of 1965, which required some states to receive prior federal clearance before they could change their voting procedures, no longer applied because these states had stopped voter discrimination.

In a heated dissent, Ginsburg wrote that getting rid of preclearance for certain Southern states because it had worked in the past was like throwing away your umbrella because you were not getting wet today.

She argued that without the umbrella of preclearance, Southern states would change their voting procedures to discriminate against minority groups.

and assault. She said that women had been silent too long, and that it was time for them to publicly describe their experiences with sexually aggressive men. Ginsburg reported that, when she was in college, a chemistry professor had offered to give her the answers to an exam in return for sex, and that she was disgusted by the offer.

While working at the Women’s Rights Project, Ginsburg developed a plan and worked all her life to gain equal legal and economic rights, sexual freedom, and access to contraception and abortion for women. She worked hard and made enormous progress toward gender equality through teaching, writing, and Supreme Court opinions. After two conservative Republican Justices were appointed to the Court, creating a narrow conservative majority, Ginsburg feared that her proudest achievements would be reversed if she resigned, so she decided to stay on the Court to protect her legacy of equal justice for women. She believed racial justice, women’s reproductive rights, access to affordable health care, and worker protections were under attack

Ginsburg disliked writing dissents because that meant she had failed to convince four other Justices of her legal theory about a case. However, when it was not possible for her to join the majority because she disagreed fundamentally with majority’s legal reasoning, Ginsburg’s only option was to write a strong dissent that might change the legal community’s thinking in the future.

Justice Ginsburg, a Cultural Icon During her last years on the Supreme Court, Ruth Bader Ginsburg became a favorite of feminist progressives and famous for reading her dissents from the bench. She faced serious health issues during her later years on the Court. After Ginsburg underwent recurring treatments for cancer, several legal experts suggested she resign and give President Obama the opportunity to appoint a liberal successor while he was in office. However, she liked her job too much to resign, and because of seniority, she had significant power within the Court. As the most senior liberal Justice, she assigned cases when the Chief Justice was in the minority.

Ginsburg developed several maxims during her life that guided her choices. Among them were “pick your battles”; “don’t burn your bridges”; “work on what you believe in”; “set a goal and work for it”; “don’t be afraid to be a leader”; “develop and enjoy a sense of humor”; and “do what makes you happy”—sound advice for living a full and productive life. In 2016, Ginsburg published a book about her life entitled My Own Words. Her book made the New York Times bestseller list at No. 12 later that year. In 2018, she expressed support for the Me Too movement in America, and she personally encouraged women to speak out about their experiences with sexual harassment

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by conservatives, and she was determined to stay on the Court as long as possible to protect those civil rights.

Justice Ginsburg’s Health In 1999, Ginsburg was diagnosed with colon cancer, the first of several struggles with the dreaded disease. She endured surgery, chemotherapy, and radiation, but she never missed a Court session at that time.

She became physically weaker because of the chemotherapy, and she began working with a personal trainer to improve her fitness.

In 2009, Ginsburg was diagnosed with pancreatic cancer, underwent treatment, and returned to the bench to assume fulltime work. In 2018, she fell and fractured three ribs. The CT scan of her ribs revealed cancerous nodules in her left lung, and part of that lung was removed at Memorial Slone Kettering Cancer Center. While undergoing this treatment and during her recovery, she missed oral arguments for the first time in

her tenure. In 2019, she endured three weeks of radiation therapy for another tumor in her pancreas, and in 2020 her cancer recurred.

Rather than resign, she chose to remain on the Court so long as she could do her job.

She died of complications from cancer on September 18, 2020.

BIBLIOGRAPHY

Harry Munsinger recently concluded a long practice that focused on Collaborative Divorces, Estate Planning, and Probate matters. Harry holds a Ph.D. in psychology from the University of Oregon and a J.D. from Duke University School of Law, where he was a member of the Duke Law Journal.

Charles E. Moritz v. Comm’r of Internal Revenue, 469 F.2d 366 (10th Cir. 1972).

Aaron M. Houck, Ruth Bader Ginsburg, Encyclopedia Britannica, https://www.britannica.com/biography/ Ruth-Bader-Ginsburg (last visited August 6, 2021).

Bush v. Gore, 531 U.S. 98 (2000).

Califano v. Goldfarb, 430 U.S. 199 (1977).

Duren v. Missouri, 439 U.S. 357 (1979).

Frontiero v. Richardson, 411 U.S. 677 (1973).

Gonzales v. Carhart, 550 U.S. 124 (2007).

Reed v. Reed, 404 U.S. 71 (1971).

Moritz v. Comm’r of Internal Revenue, 55 T.C. 113 (USTC, 1970).

Reed v. Farley, 512 U.S. 339 (1994).

Shelby County v. Holder, 570 U.S. 529 (2012).

Stafford Unified School District v. Redding, 557 U.S. 354 (2009).

Thompson v. Keohane, 516 U.S. 99 (1995).

United States v. Virginia, 518 U.S. 515 (1996).

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).

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Fourth Court Update

The Texas Shuffle

By Justice Irene Rios

T

wo bills, Senate Bill 11 (“SB11”) and Senate Bill 1529 (“SB1529”), were introduced in the most recent regular session of the legislature.

Both bills aimed to dramatically change the landscape of the state’s intermediate appellate courts. Had they passed, the ramifications of these bills would have reverberated across every courtroom and attorney’s law practice in Texas. Trial judges and lawyers would have struggled to determine which justices might decide their cases on appeal, where those appeals would be heard, and what case law would be binding in their jurisdiction.

SB11 aimed to overhaul the current makeup of Texas intermediate appellate courts by eliminating the current fourteen appellate districts and creating seven mega appellate districts in their stead. The redistricted map placed Dallas and Austin in the same district, while placing Fort Worth and Texarkana in the same district. The proposed Second District stretched 520 miles wide and contained Boerne, Kerrville, Midland, and El Paso. Each of the new districts consisted of many rural counties and one or two large cities, perpetuating the concern that only justices from the large cities would be elected.

Approximately 60% of the Fourth Court of Appeal’s district would have merged with a portion of the Thirteenth Court of Appeal’s district to form the new Third District. The proposed Third District stretched westward from Bexar County to Maverick County and southeastward from Bexar County to Aransas County, and encompassed every county south of those locations. This proposed Third District extended nearly 300 miles south of San Antonio and was 250 miles wide between Eagle Pass and Rockport. It would have also consisted of eleven justices—five justices from the Fourth Court and six justices from the Thirteenth Court. Two associate justices from the Fourth Court would have transferred to El Paso/Midland’s Second District.

Proponents of SB11 argued the need to improve efficiency and equalize dockets— by distributing the appellate workload more evenly across the state’s eighty appellate justices—warranted redistricting. They also

argued the bill would enhance consistency and predictability in the state’s jurisprudence by eliminating the overlapping jurisdictions in Houston’s First and Fourteenth Courts.

Opponents of SB11 argued the bill “create[d] more problems than it solve[d],” was “a solution in search of a problem,” and that the recited justifications for the bill amounted to no more than “conclusory allegations without empirical data to back them up.”1 Opponents also argued SB11 gerrymandered the districts of the intermediate appellate courts. In addition, opponents were troubled by the lack of stakeholder input and concerned that many Texas rural and urban communities would be left without a meaningful voice.

Despite short notice, approximately two dozen of the state’s eighty appellate justices— including six chief justices—testified at the April 1 hearing to inform the Senate Committee on Jurisprudence that the perceived, minor problems cited in SB11’s bill analysis did not merit the drastic measures the legislation sought.2 Justices from the First Court in Houston denied any confusion on the law in the overlapping jurisdictions and explained that the Houston courts follow one another’s precedent. Justices also testified docket equalization only accounts for approximately 4–5% of their respective court’s dockets and did not, by itself, justify the proposed legislation—especially because current docket equalization methods sufficiently balance the workload among the appellate courts.

SB1529 sought to create an additional appellate court sitting in Austin with “exclusive intermediate appellate jurisdiction over all cases or any matters arising out of, or related to, a civil case brought by or against the state or a state agency, board, or commission or by or against an officer of the state or a state agency, board, or commission.”3 The justices running for a position on this centralized special court would be elected in statewide elections.

Proponents of SB1529 argued a specialized, statewide appellate court with exclusive jurisdiction over cases where the state, a state agency, or state official is a party would be more adept in handling complex appeals involving the state and result in more

consistent jurisprudence. Opponents of SB1529 contended that the current system already provides for appeals to the Texas Supreme Court to correct errors and ensure consistency across the state. They further contended the bill attempted to consolidate judicial power in Austin. Opponents also expressed concern that the expense to run a statewide campaign would almost certainly preclude the election of justices from rural communities.

The Senate Committee on Jurisprudence ultimately voted to reconsider SB11 and left it pending in committee when the general session concluded. The full senate approved SB1529, but it failed to make it out of committee in the house of representatives. Although these bills died in the general session, stay tuned to see if they re-emerge in special sessions or in future legislative years. When legislation seeks to affect the judiciary, judges and lawyers should be part of the process to ensure positive change and to preserve an independent judiciary where judges may faithfully preserve, protect, and defend the Constitution and laws of the United States and of the great state of Texas.

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 has served as a Special Master of major litigation.

Justice Rios acknowledges her staff attorney, Craig O’Neil, for his contributions to the article.

ENDNOTES These quotations are from testimony given in the April 1 hearing. See Hearings on Tex. S.B. 1529 and Tex. S.B. 11 Before the Senate Comm. on Juris., 87th Leg., R.S. (April 1, 2021) (video recording available at https:// tlcsenate.granicus.com/MediaPlayer.php?view_ id=49&clip_id=15611).

2 Chief Justice Martinez read a letter expressing the concerns of the seven justices from the Fourth Court who were present at the April 1 hearing.

3 Tex. S.B. 1529, 87th Leg., R.S. (2021).

1

September–October 2021

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San Antonio Lawyer® 27

Federal Court Update

Western District of Texas Court Summaries

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

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

Tex. Civ. Prac. & Rem. Code § 18.001 Affidavits Munis v. Harbor Freight Tools, USA, Inc., SA-21-CV-00318-OLG (Chestney, E., June 24, 2021).

The plaintiff served initial disclosures in a personal injury suit and included three section 18.001 affidavits from his medical providers, attesting to the reasonableness and necessity of certain medical expenses.

The defendant moved to strike the unfiled affidavits, alleging that section 18.001 of the Texas Civil Practices and Remedies Code is a procedural statute inapplicable in a diversity suit in federal court. The court explained that district courts are divided as to whether section 18.001 applies in federal court, but that it is this court’s practice to permit use of section 18.001 if both parties agree to such procedure. The court also indicated that it had “recently sided with those courts finding [s]ection 18.001 to be a procedural provision of state law inapplicable in federal court in cases involving the Federal Torts Claims Act.” The court denied the defendant’s motion to strike without prejudice.

Review of Magistrate Judge’s Decision Laborfest LLC v. City of San Antonio, SA19-CV-00060-JKP (Pulliam, J., June 24, 2021).

A magistrate judge granted the defendant’s Motion to Quash Subpoena and Order Forbidding Deposition, stating his reasons for his order on the record at the hearing. On 28 San Antonio Lawyer® | sabar.org

the same day, a minute entry was entered on the docket indicating that a hearing was held and that the motion was granted. The hearing was also recorded. The magistrate judge then entered a text order granting the motion for the reasons stated on the record at the hearing.

The plaintiffs appealed the text order to the district court. A magistrate judge’s ruling on a nondispositive matter may be reversed when the order is clearly erroneous or contrary to law, and factual findings should be affirmed unless the district court has a definite and firm conviction that a mistake was committed.

Because the plaintiffs failed to provide the hearing transcript and did not indicate a reason why the transcript was not provided, the court did not have the opportunity to review the magistrate judge’s findings and the basis for his conclusions and, therefore, affirmed the order. The court also undertook a discretionary, de novo review of the record, which confirmed the court’s decision to affirm.

Dismissing an ERISA Claim Windmill Wellness Ranch, LLC v. Meritain Health, Inc., SA-20-CV-01388-XR (Rodriguez, X., June 25, 2021).

The court granted the defendants’ motion to dismiss the plaintiff’s second amended complaint with prejudice. The plaintiff, a healthcare provider, asserted claims for underpayment of its out-of-network provider claims submitted under an ERISA plan. The plaintiff claimed it had standing to assert its claims because the patient in question executed an “assignment and authorization

to appeal.” Healthcare providers do not have standing in their own right to sue under ERISA but may derivatively bring ERISA suits on behalf of their patients. Here, however, the ERISA plan contained a valid anti-assignment clause. Because the defendants’ motion to dismiss relied on documents outside of the plaintiff’s amended complaint, the attack is considered a factual attack, and thus there is no presumption of truth to the plaintiff’s jurisdictional allegations and the court is free to weigh the evidence, including the plan documents. The plaintiff also failed to meet the elements of its ERISA estoppel claim because the plaintiff did not bring its claims as an ERISA assignee until its second amended complaint, and therefore, the defendants did not materially misrepresent their intention to challenge plaintiff’s jurisdictional standing assertion based on the anti-assignment clause.

The plaintiff did not detrimentally rely on an acquiescence of assignee status because it did not assert such status until the second amended complaint, and further, any reliance was not reasonable given the anti-assignment clause. The defendants did not waive the antiassignment clause by paying the plaintiff as a direct payee. Department of Labor regulations did not allow the plaintiff to act on behalf of the patient in question because the care involved “urgent care.” Department of Labor regulations do not prevent an authorized representative of a claimant to pursue a benefit claim or appeal; however, authorized representative status does not convey standing to sue in federal court.

Dismissal Under the Defamation Mitigation Act Cantu v. Guerra, SA-20-CV-0746-JKP (Pulliam, June 28, 2021).

The court denied the defendant’s motion to dismiss a defamation claim under the Defamation Mitigation Act (DMA). The DMA provides a mechanism by which a person who has been defamed may attempt to mitigate any perceived damage or injury by bringing to the defendant’s attention the alleged defamatory actions and request that the defendant take corrective action. The defendants argued that the plaintiff failed to comply with the DMA’s provision requiring such a notification, and thus, the statute required dismissal. The court examined whether the plain language of the statute required dismissal of claims where the defendant did not receive sufficient request for corrective action. The court looked to a Supreme Court of Texas plurality opinion and outlined a split of authority in other courts where some courts require dismissal, and others find that the consequence of failure to make a request under the DMA is not dismissal, but instead preclusion of recovery of exemplary damages. While ultimately the court decided not to weigh in on the issue because it would require consideration of matters outside the pleadings, which is not appropriate at the Rule 12(b)(6) motion to dismiss stage, it did make clear that courts may decline to dismiss defamation claims solely because of noncompliance with the DMA.

Taxation of Exemplification Costs Under 28 U.S.C. § 1920 United Biologics, L.L.C. v. Allergy & Asthma Network/Mothers of Asthmatics, Inc., 5:14-cv-35-RCL (Lamberth, May 17, 2021).

The court held that the defendants were not entitled to recover costs incurred by their trial technology consultant under 28 U.S.C. § 1920(4), which allows taxing as costs “fees for exemplification.” The court awarded costs for stenographic transcripts and videos of depositions, as well as trial transcripts and exhibit binders for the court under other subsections of 28 U.S.C. § 1920. However, the court stopped short of awarding costs for the trial technology consultant and noted that the Seventh Circuit’s precedent regarding 28 U.S.C. § 1920(4) has “transform[ed] § 1920(4) from a tool to recover relatively minor,

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

incidental expenses into a roving warrant to recover potentially millions of dollars expended on graphics and demonstrations.”

The court pointed to case law, dictionaries, and treatises published at or before the enactment of § 1920(4) to show that “exemplification” was understood to mean an authenticated copy of a public record for use as evidence.

Thus, an audiovisual technician expense could not qualify as an exemplification cost. The court also held that expenses incurred for graphics used during trial were likewise not an exemplification under § 1920(4), even though they were pre-approved by the court.

In so ruling, the court found that just because the trial court pre-approved the exhibits does not mean that the costs associated with those exhibits may be taxed, as this would allow “courts [to] enlarge their own authority on . . . an ad hoc basis,” which would serve to “degenerate” Congress’s attempt to strictly limit taxation of costs “to no limit at all.”

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

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

Karen Pozza PLLC With 20 years of experience as a civil district court judge, Retired Senior Judge Karen Pozza can help you resolve your case.

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