San Antonio Lawyer, September/October 2022

Official Publication of the San Antonio Bar Association

Donna McElroy

Stands Out for All the Right Reasons

September–October 2022

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contents ON THE COVER 6 President Donna McElroy Stands Out for All the Right Reasons

By June Moynihan

FEATURES 11 Legal Professionals as Poll Workers: Protecting Democracy

By Rosemarie Kanusky

16 Historic Precedent Hits Close To Home For One Local Lawyer

By Calhoun Bobbitt

19 Highlights of the Current Local Civil Rules in the Western District of Texas

By Leslie Hyman

6 Donna McElroy Photography by Mewborne Photography on location at UNESCO World Heritage site, Mission San Jose, completed in 1782.

22 Dan Naranjo Recalls How the Tower of the Americas Got Its Name

By Dan A. Naranjo

DEPARTMENTS 5

Feedback

26 Fourth Court Update

By Justice Irene Rios

30 Federal Court Update

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

September–October 2022 | San Antonio Lawyer® 3

®

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OFFICERS / DIRECTORS President Donna McElroy President-Elect Steve Chiscano Treasurer Patricia “Patty” Rouse Vargas Secretary Nick Guinn Immediate Past President Lawrence Morales, II

4 San Antonio Lawyer® | sabar.org

Directors (2021-2023) Kacy Cigarroa Tiffanie Clausewitz Grant McFarland Jaime Vasquez Directors (2022-2024) Emma Cano Charla Davies Charles “Charlie” Deacon Jorge Herrera Executive Director June Moynihan

STATE BAR / SA BAR FOUNDATION State Bar of Texas Directors Tom Crosley Lawrence Morales, II

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

feedback San Antonio Lawyer July-August 2022 Good afternoon Steve, I have enjoyed many of your excellent articles about San Antonio attorneys. This one is your magnum opus, as is Phil and his truly amazing life. And the title of your article is as good as titles get! Thank you.

Email to author Steve Peirce from Terry Topham, Of Counsel, Davidson, Troilo, Ream and Garza Dear Sara: The Hardberger issue of SA Lawyer has been the best edition ever. The authors, Steve A. Peirce and Barry Beer, have offered us professional class profile writing. The subject, Phil Hardberger, Adventurer and Philosopher, was a superb choice. He has had an outstanding career and has made an indelible mark on the history of San Antonio. . . .

Email to author Steve Peirce from Julius Grossenbacher to Editor in Chief Sara Murray Dear Sara: Thank you for the Phil Hardberger story. I have long admired him, but I now realize that I did not know the half of it. His purposeful life of service—and adventure—are remarkable in every way. At first, after reading Steve Peirce’s extraordinary article, I thought that we needed to make a movie about this Great American—Air Force pilot, Peace Corps worker, trial lawyer, author, judge, and mayor. Then it came to me that his life has been too large and too great for a movie.

He needs a miniseries. And it needs to be required viewing for every Texas lawyer and for every Texas law school. He is the exemplar for our profession. But something else is needed as well. It is past time to nominate Phil Hardberger for the Presidential Medal of Freedom. Seriously.

Steve Peirce’s illuminating article makes the case beyond a reasonable doubt. I therefore humbly suggest that the San Antonio Bar Association, the City of San Antonio, and Bexar County promptly take steps to secure his nomination. He has honored us with his handiwork. Now it’s his turn. With appreciation, Royal Furgeson.

July 26, 2022, email from Royal Furgeson, U.S. District Judge (Retired), Dean Emeritus, UNT Dallas College of Law, to Editor in Chief Sara Murray

Dear Steve: Congratulations on a spectacular article about Phil Hardberger. The article was very well written and was informative beyond anything I had known about Phil. By the way, more than once I sailed with Phil and my former employer and mentor, Gerry Goldstein. Once, on an incredibly windy blustery winter day, we were sailing on Canyon Lake. Going downwind, Gerry wanted to put up the spinnaker. Phil leaned over and said, “Damn, Gerry, I came out here to sail, not drown!” We came about and sailed the length of the lake back to the marina, all of us a bit relieved. As an attorney for the City, it was always a comfort to know that the Mayor was a brilliant attorney first and a politician second. I always felt like he . . . understood the complex legal issues facing every aspect of the City’s operation. I always felt that he had our back! Phil Hardberger is an amazing and unique person, and I am grateful that I got to know him and consider him a friend.

Thanks for your great article.

July 27, 2022, email to author Steve Peirce from Eric Friedland, Assistant City Attorney Sara — The July-August 2022 edition of San Antonio Lawyer was the first I have ever read. I got through it all in one sitting!

The content was well-written, informative, and interesting. I know what an effort it takes to compile something that provides so much useful information to readers, so thank you for your effort. All the best.

Hand-written note to Editor in Chief Sara Murray from Thomas C. Mayes, Jr.

Hi Steve, I was lucky enough to receive a copy of the San Antonio Lawyer and just read your wonderfully written article about Phil Hardberger. I enjoyed the article all the way to the end, which was made even better when I saw you were the author. Of course you were! I am not sure what I did to deserve a copy, but I suppose there will always be some “San Antonio Lawyer” in me. I have enjoyed the issue very much.

What a great story, so well told. Thanks for sharing it. I hope you and yours are well.

July 27, 2022, email to author Steve Peirce from Lisa Horvath Shub, Partner, King & Spalding LLP, Austin, Texas Hi Mr. Peirce, As an Air Force vet and 34-year-old attorney in San Antonio, I found your article in [San Antonio Lawyer] about Mayor Hardberger very inspiring. Your writing was direct and helped paint a great picture of the man. What a privilege it must be to have met him and worked with him to write this! Thank you.

August 9, 2022, email to author Steve Peirce from Paul Bishop, Associate, Martin, Disiere, Jefferson & Wisdom, LLP

WE LOVE FEEDBACK! Please send letters to the editor to Sara Murray, editor in chief, at smurray@langleybanack.com. The San Antonio Bar Association thanks our editors, board of editors, and contributing volunteer writers for bringing an unparralled quality of editorial content to our valued readers.

Workplace Harassment Investigations

September–October 2022 | San Antonio Lawyer® 5

President

Donna McElroy

Stands Out for All the Right Reasons

By June Moynihan

D

onna McElroy started her professional life, and her life in San Antonio, at Cox & Smith Incorporated (now Dykema Gossett PLLC) upon graduating from Tulane University School of Law in 1986. Donna’s first interaction with the Cox & Smith firm was through a cattle-call interview event held in an Atlanta hotel with students from many law schools. Students submitted resumes, and if the law firm wanted to meet in person, they scheduled a twenty-minute interview. It was like speed dating, but on-campusinterview style. “I wore a maroon suit, so I would stand out in the sea of navy and black suits,” Donna recalls. “It was the mid-eighties so all the young women were trapped in pantyhose and skirts in one of the most humid cities in America. I have never been a fan of pantyhose!”

She was interviewed by Jamie Smith and Diann Bartek from Cox & Smith’s San Antonio office. The firm stood out for Donna because Smith asked her not just about law school, but also about her interests outside the office. When Donna expressed her enthusiasm for nature, he assured her that San Antonio was a perfect place to live and work for someone who loved the outdoors. He was right, and Donna fell in love with the city. Donna grew up in Marrero, Louisiana, a small town near New Orleans. She attended Auburn University and Tulane, both of which also had a small-town feel. When she arrived in San Antonio, it “was bigger but had small town charm, so it was comfortable and felt welcoming” to her.

6 San Antonio Lawyer® | sabar.org

Cover and article photography by Mewborne Photography on location at UNESCO World Heritage site, Mission San Jose, completed in 1782.

Discipline In and Out of the Law Office When Donna officially joined the firm as an associate, she made fast friends with her new colleagues and got involved with various bar associations, including the San Antonio Bar Association, the Bexar County Women’s Bar Association, the William S. Sessions Inn of Court, the Labor and Employment Sections of the State Bar of Texas, and the American Bar Association. Former Fourth Court of Appeals Justice Rebecca Simmons, who was a second-year associate when Donna joined Cox & Smith, recalls, “People are drawn to Donna because she is charismatic and has a great sense of humor. She is also fiercely competitive, so you always wanted her on your team.”

Her competitive nature comes honestly—Donna was an athlete throughout her childhood and represented Auburn on their collegiate racquetball team. Once in San Antonio, Donna quickly fell in with a group of other young lawyers who organized recreational bicycle rides.

Former Justice Simmons remembers, “I accepted the invitation to join this group because I thought they were planning some relaxing jaunts around town.” To the contrary, “I found myself riding with these seriously disciplined cyclists who scheduled early morning, after work, and weekend rides—they put in a lot of miles. I soon had a newborn baby, and the baby was the perfect excuse to bow out of these wildly rigorous excursions.”

Donna has since spent over three decades practicing law in San Antonio, and she is board certified in Labor and Employment Law. Her practice has evolved into regular client advisory and consulting work, but going to trial is always an option, and Donna enjoys trial preparation. “You do everything to avoid litigation, but sometimes, it is necessary,” she says. Her clients include Fortune 500 companies, learning institutions, and local governments. She recently was praised for her work on behalf of the City of San Antonio for ending a six-year stalemate, using binding arbitration to finalize a contract between the City and the San Antonio Firefighter’s Union.

Finding Love and Building a Family Bicycling ended up being more than collegial recreation—it was also Donna’s path to romance. Robert Steele was the manager of Bike World on Broadway, and Donna recalls, “He had the best legs on a man I have ever seen.” She found reasons to visit the store frequently, so much so that Rob’s workmates began chiding him for not asking her out. Rob reasoned, “Donna was an accomplished lawyer. I figured she must be much older than me and probably not interested.” On one of her frequent visits to the shop, Rob casually asked Donna her age and discovered she was a few months younger than he was. Still not completely confident she would agree to a date, he calmly suggested that she “stop by” a company staff New Year’s Eve party.

She did stop by, and it was there he invited her out on an official date to see the movie Fatal Attraction. Robert reports, “It was a slow beginning, and the first date movie choice was questionable, but we worked that all out and just celebrated our 32nd wedding anniversary.”

The pair married in 1990, and former Justice Simmons recalls that “half the law firm flew to New Orleans to celebrate with them.” Rob finished his engineering degree, and Donna made partner by the time their daughter, Jordan, was born in 1995. Within four years, the family added two boys, Blaise and Jared, and the McElroy-Steele household had three children under the age of four.

Jordan declares that her parents “could not have found better partners. They just get each other.” The family prioritized attending their kid’s events and having dinner together every night. That often meant that everyone went back to work, practice, or homework after dinner, but it was phones off, dinner together nearly every night growing up.

“It was organized chaos, but we got undivided attention for the entire meal,” remembers Jordan.

Left: Blanche McElroy with her children (L-R) Kevin, Stacie and Donna Below: Donna, and Stacie with their mother

Left: Donna with her parents, Royce and Blanche McElroy at graduation

Coming by It Honestly and Passing It On Donna’s parents were tremendous role models. Blanche and Royce McElroy adopted Donna and both of her siblings, Kevin and Stacie, through the Catholic Charities service. Blanche was the epitome of a gracious lady and hostess, and in her lifetime, she never wore blue jeans.

Blanche sewed the habits for the nuns at their church and was active in parish life. Royce played minor-league baseball for the New Orleans Pelicans, both before and after his service in the Marine Corps during the Korean War. He started his career in the oil and gas industry after he married. As Donna tells it, their children were their joy, and they always encouraged Donna and her siblings to pursue their interests.

Donna has always been creative and loves to draw, paint, and take photographs. Blanche encouraged Donna to become an artist. When Donna was 15, her father took her to Barker’s Department Store to buy her first camera, a 35mm Minolta. Donna took her camera everywhere, and her family and friends lovingly referred to her as the “teen photographer.” She is still the family photographer, and many fond family memories are captured in her pictures.

Donna was also a famously talkative child, and her father suggested that she should use her intellect and voice for good. “My dad was the first person who told me that I should be a lawyer, although I am not sure if he was complimenting me the first time he said it,” Donna laughingly recalls. She also remembers it was her father who urged her to work hard September–October 2022 | San Antonio Lawyer® 7

Left: Robert and Donna at their New Orleans wedding

Below: Donna and her Auburn Collegiate Raquetball teammates

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for the things she wanted and to avoid unsupportive people. Donna sometimes says the person who motivated her the most was the school counselor who tried to steer her toward a career as a legal assistant, confidently asserting that law school would be too hard for Donna.

“If you want to rile my mom up, tell her she can’t do something,” Jordan warns. “My mom is channeling her dad when she pushes us to work hard for the things we want.” Donna trained her children to believe that one does not “always have to be the smartest person in the room if ” he or she is “willing to outwork everyone else in the room”; and that one should not give up just because something is hard because “worthwhile things are often hard.”

The discipline to pursue hard but worthwhile goals is evident not only in Donna’s work, but also in how she plays. For years, Donna and Robert’s dates consisted of double-digit-mile bike rides, hikes, and camping. Until the children could manage their own bicycles, they joined in on bike trailers. When her children were still in elementary school, summer meant a family mountain bike tour through a national park.

Everyone biked 15-20 miles a day from campsite to campsite through the Grand Tetons and the Grand Canyon. Jordan reminisces, “My parents were in heaven because cell service was non-existent, and they loved being in nature with their children.” The utopia could not last forever, though. Jordan remembers distinctly, “We were biking out of Yellowstone Park after a week of riding, and as we got closer to the city, my mom’s Blackberry phone started pinging as her inbox was filling up with emails and voicemails. It was the sound of our vacation officially being over.”

The call for a home in a mountain setting was rumbling, and the family initially started looking at places in Colorado. By chance, they were invited to visit friends in New Mexico, and they drove through the village of Angel Fire. Donna did the math. While Colorado was enchanting, it would always require air travel. Angel Fire is a straight nine- or ten-hour drive on the interstate. They bought a place near Angel Fire Resort about ten years ago, and it is now an all-season family retreat, but especially in the winter. Former Justice Simmons teases that Donna always avoided winter sports because she dislikes being cold.

While Robert and the kids would ski and snowboard each winter before they bought their mountain home, Donna only ventured into winter sports in Angel Fire. She chose snowshoeing, unsurprisingly much more challenging than gliding down a mountain on skis. Angel Fire became a refuge during the COVID lockdown, and the family was able to build some normalcy with daily excursions outdoors for activities and exercise.

Donna recounts it was difficult to be away from San Antonio, but a peaceful space to quarantine.

When at home in San Antonio, as busy as they are, the McElroySteele family is famous for their hospitality. Each Easter, the doors are open to their extended “family” of friends for a potluck, Easter egg hunt, and egg toss. Their most beloved event is their “Turkey Fry” which is held the night before Thanksgiving. The invitation list is informal. The regulars bring new friends, and people come and go. Robert sets up the fryer in the driveway, and Donna creates various spice blends to inject into the birds before frying. Friends bring over their turkeys and line up to drop them into the deep fryer. There is an abundance of food and drink, and guests have been known to stay into the wee hours to make merry, sometimes falling asleep on the couch.

A Firm Foundation and a Great Hope for Things to Come Donna is a woman of deep faith and is influenced by her Catholic upbringing. She attends daily Mass during Lent. She has been a longtime instructor for Rites of Christian Initiation of Adults, the continued on page 10

8 San Antonio Lawyer® | sabar.org

Newlyweds Donna and Robert Steele

Above: Donna, Jordan, Blaise, Jared, and Robert

Left: The family enjoy Angel Fire, New Mexico.

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continued from page 8

Donna camped out all night for this shot of the constellation Horsehead Nebula.

Donna took this photo at the Valley of Dreams & Shiprock in New Mexico.

courses for adults who want to join the Catholic Church. She continues to educate herself in the faith and has academic knowledge of Catholic history and theology. Her faith also guides her deep respect for others’ faith practices. In a leadership capacity, Donna serves on the board of directors of Caritas, the legal service arm of Catholic Charities. Donna is very connected to her parish, and there is no task beneath her. Her parish friends say she is just as willing to sit in a prayer circle as she is to show up on a Saturday with supplies to paint a church room.

As the kids have left the nest, Donna has formed a new pack with her growing menagerie of dogs—Thibodaux, Boudreau, and Gumbo each joined the family (not coincidentally) as a Steele child graduated high school. Donna has also been able to spend more time on another longtime passion, photography. Having graduated from her Minolta, Donna has spent a full week of evenings camping on a mountainside waiting for the perfect conditions for a beautiful shot. It is no surprise that Donna decided she wanted to develop her long-dormant photography skill, and through her time-tested discipline and hard work, capture the heavens.

Donna expects and has faith that the San Antonio Bar Association will accomplish some big things under her leadership. She knows it will take discipline and probably be hard, but worthwhile things often are.

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

Donna’s shot of Valley of Dreams, New Mexico

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N JUDGE ELECTIO

Legal Professionals as Poll Workers: protecting democracy

By Rosemarie Kanusky

I

n the May/June 2022 edition of San Antonio Lawyer, Michael Curry offered sage advice in his article “The Lawyer as Citizen in a Democracy Under Attack.”

As lawyer citizens, we can also support our democracy by working as election judges and election clerks. and by encouraging our legal staff to do the same.

Elections are firmly grounded in state and federal law. Successful and trustworthy elections rely on the neutral administration of that law by local election officials and poll workers recruited by those officials. When lawyers serve as poll workers, they advance the goals of their profession.1 Besides, who wouldn’t like to be a judge for a day?

For the November 2020 general election, the American Bar Association, the National Association of Secretaries of State, and the National Association of State Election Directors launched an initiative to encourage lawyers, law students, and other legal professionals to serve as poll workers.

The “Poll Worker, Esq.” initiative was short-lived, but the need for impartial poll workers remains.2 Election officials and poll workers continue to face challenges from the COVID-19 pandemic, media scrutiny, and legislative action. This aging workforce needs an infusion of new talent.

Who Conducts Elections?

In Texas, counties conduct national and statewide elections.3 Local governments— such as cities, school districts, and municipal

utility districts—can conduct their own elections.4 These elections include both general elections that occur on regular dates to elect members of the governing body, as well as special elections that occur on an ad hoc basis.5 Local governments may contract with cities and counties for election services, such as leasing voting equipment.6 Local governments may also contract with their respective county election officials for a joint election.7 In a joint election, several local governments share polling places, workers, ballots, and expenses.

Joint elections are the norm in Bexar County.

In Bexar County and many of the surrounding counties, the respective commissioners courts have given the twin duties of running elections and registering voters to nonpolitical elections administrators.8 Other counties may split those election responsibilities between elected county clerks and tax assessor-collectors.9 Regardless of who a county’s election official might be, that person cannot manage an election without a supporting team, including poll workers.

Who Are Poll Workers?

Poll workers are the officials who conduct an election at a polling place, ideally in a neutral, efficient, and fair manner.10 In Texas, there are at least three election officials at one time in each polling place on election day: an election judge, an alternate judge, and a clerk.11 Only two officials are required for an early voting site, but many larger jurisdictions,

like Bexar County, provide at least three.12

What Are the Qualifications for Poll Workers?

At least one of the workers at each polling site must be fluent in Spanish.13 Poll workers must be registered voters of the territory served by their polling place, and counties may require additional qualifications.14 In Bexar County, the election judge and alternate must attend a certification class and receive at least 70% on a test. The training takes about eight hours and is not currently compensated. To remain certified, the judge and alternate must pass a recertification test every two years. The judge and alternate should also be available on their own time to set up polling places, pick up supplies, and return supplies and election results.

Certain individuals are disqualified from serving as poll workers at any given time:15 (1) elected officers (precinct chairs are not considered elected officers), (2) candidates for office in that election, (3) campaign treasurers of candidates in that election, (4) campaign managers of candidates in that election, (5) employees or relatives of an opposed candidate in that election, and (6) persons finally convicted of election-related offenses.

How Often Are Poll Workers Needed?

The general rule is that poll workers are needed twice a year: once for the uniform date in May (which is currently the first Saturday

September–October 2022 | San Antonio Lawyer® 11

in May) and the uniform date in November (which is the first Tuesday following the first Monday in November). But there are many exceptions to this general rule: runoff elections, special elections to fill a vacancy, or emergency elections called by the governor.16 In March of even-numbered years, poll workers are also needed for the primary elections, which cannot overlap with the uniform election dates.17 Counties want poll workers they can count on, but it is not necessary to work every election conducted in the county during any given year. Counties are flexible about scheduling, especially when they find highly skilled workers.

Are Poll Workers Volunteers?

Local governments hire poll workers to work the polls.18 Although the Election Code provides broad guidance for the pay structure, local governments have the discretion to deviate from that guidance and provide greater pay and benefits.19 Bexar County, for example, pays an election judge $17 per hour; an alternate judge, $16 per hour; and a clerk, $15 per hour.

However, Bexar County does not currently pay judges for time spent in training, nor does Bexar County pay judges for the extra time they

spend picking up supplies or setting up the polling place the day before a poll opens. While poll workers are making substantially less than professionals, they are not strictly volunteering.

Some poll workers donate their compensation to a charity of their choice.

Are Poll Workers Trained?

State law requires election judges and alternates to be trained, yet the training varies from county to county.20 As noted above, Bexar County requires its election judges and alternates to attend in-person training and pass a test. Clerks are encouraged, but not required, to attend. The classes are offered on a variety of dates and times, including evenings and weekends, and they focus on two general topics: election law and mechanics.

Election judges and alternates need to know the law regarding voter identification, permissible activities in and around the polling places, who qualifies for specialized types of voting, and much more. Written resources include the secretary of state’s handbook for election judges, as well as graphics and checklists specific to Bexar County’s practices.

Regarding mechanics, Bexar County provides trainees with hands-on instruction for setting up, using, and storing the computers

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for checking in voters, the ballot marking machines, and the secured ballot scanner and tabulator. Bexar County also introduces trainees to the various state-mandated forms and how to complete them. The polling place supply-kit includes a binder with detailed pictures and instructions for all necessary procedures.

What Are the Hours Expected of Poll Workers?

Many counties, like Bexar, expect the election judge and alternate to remain on duty at their assigned poll for the duration of setting up, voting, and closing. Clerks may work the same hours or work in shifts. On election day, poll workers arrive at 6:00 a.m. to prepare the polling place for voting. Polls open to voters at 7:00 a.m. and close to voters at 7:00 p.m. (although any voters standing in line at 7:00 p.m. will be allowed to vote). Poll workers leave after tallying results and storing the supplies that remain (anytime between 7:30 p.m. and 10:30 p.m.). A similar pattern applies to early voting polling locations, but those locations may be open in differing combinations of hours and days. Time at the polls is compensable, as mentioned above.

What Is an Election Day Like for Poll Workers?

For most election judges, work begins the week before election day by picking up a supply-kit, laptop, and phone. The day before election day, they visit their assigned polling site and begin preliminary set up of the tables, chairs, and equipment that Bexar County previously delivered to the site in locked storage cabinets.

On election day, poll workers arrive before the polling place opens to ensure the voting equipment is operational and that all required informational posters are in place. Workers typically bring their own drinks and meals to enjoy throughout the day; counties will ensure that poll workers (not necessarily voters) have access to restroom facilities.

Voters are generally happy to interact with poll workers. For the required picture identification card, most voters bring a Texas driver’s license. These voters are easy to qualify or check-in, either electronically or on a paper roster. Most voters in Bexar County find the ballot marking machines intuitive, but they may need to be reminded to place the marked ballot into the secured ballot box, which also serves as a tabulating machine.

Poll workers serve a vital role in helping those voters who are not on the list of registered voters or who do not have the required

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identification card. The judge, the alternate, and the clerk work as a team to complete the necessary paperwork and to guarantee that each voter has the opportunity to vote.

Consequently, the judge may offer some voters provisional ballots. Another group of election officials, known as members of the early voting ballot board, determine whether these provisional ballots can be counted after election day and provide provisional voters with explanations of how their ballots were processed. As the name implies, the early voting ballot board also helps to process ballots by mail.

Once the polls close and the last voters have voted, poll workers secure the equipment and heavier supplies. They tally results, which, in Bexar County, means securing the electronic media used to record the results and printing a backup of the data. The judge delivers the electronic media and certain paperwork to a regional collection site, and the long day is finally done.

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What Are Vote Centers?

Most voters in Bexar County know that they can vote at any early voting location during the early voting period. But, prior to November 2019, many did not know that they were required to vote on election day in their precinct of registration. Poll workers spent valuable time trying to redirect voters to the correct precinct, with varying degrees of success.

Bexar County now participates in the countywide polling place program, as do several surrounding counties, including Comal and Kendall.21 The program mirrors the early voting process, where voters can vote at any election day location, regardless of their precinct of registration. The polls are commonly called vote centers or super polls. With each election, Bexar County strives to place polling sites in locations that conveniently serve their communities and are routinely used. The goal is to ensure a steady stream of voters but not so many voters that they stand in line for long periods of time.

What About Poll Watchers?

The last legislative session brought sweeping changes to Texas election law, including an arguably broadened role for poll watchers.22 While watchers are appointed by partisans to “preserve the integrity of the ballot box,” watchers are not election officials.23 Watchers must be qualified voters, and they must present a certificate of appointment as well as a certificate proving they have completed training provided by the secretary

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Elections officials ensure free and fair elections at the local, state, and federal levels.

of state.24 Watchers are given broad powers of observation, but they are not entitled to interact with voters or use cell phones or recording devices.25 Watchers can be removed from polling places if they violate the law or breach the peace.26

Why Serve As a Poll Worker?

In Bexar County, the average age of poll workers is 69. Some poll workers left their positions during the COVID-19 pandemic.

Some have reported leaving their positions due

to media scrutiny, legislative actions that are perceived as threatening, and the sometimes emotional state of voters. New workers are needed.

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Lawyers and their staff can calmly deal with poll watchers who may be overstepping their permitted duties. As service providers in their daily lives, lawyers and their staff know how to provide voters with efficient and effective service in a party-neutral manner, which builds confidence in the voting process.

With increasing frequency, the public servants running elections are facing an angry mob comprised of media, voters, candidates, and political operatives from other jurisdictions who have no immediate stake in the election at hand. Election officials have been verbally abused, physically threatened, and wrongly accused of criminal conduct. It is imperative that citizen lawyers reinfuse civility and respect into the election process, starting at ground level, where poll workers meet the voters.

How Are Poll Workers Recruited?

Political parties provide counties with lists of potential election judges and alternates, yet counties typically look for poll workers from all potential sources.27 Technically, presiding judges appoint their clerks, but counties often help judges locate and train clerks. Counties welcome individuals to apply.

Every lawyer should work a poll at least one time and consider giving staff paid time off to work the polls. Although the job is usually straightforward, it can be amazingly complex, but either way, it is fulfilling and rewarding.

BEXAR COUNTY Gilbert Saiz, Poll Worker Coordinator (210) 335-3760 Gilbert.Saiz@bexar.org https://www.bexar.org/2182/ Apply-as-an-Election-Official COMAL COUNTY Cynthia Jaqua, Deputy County Clerk/ Elections Coordinator (830) 221-1352 jaquac@co.comal.tx.us https://www.co.comal.tx.us/ Elections.htm KENDALL COUNTY Staci L. Decker, Elections Administrator (830) 331-8701 elections@co.kendall.tx.us https://www.co.kendall.tx.us/page/ Elections

Rose Kanusky is an elections lawyer at McCall, Parkhurst & Horton L.L.P., a public finance firm.

ENDNOTES See The Texas Lawyer’s Creed: A Mandate For Professionalism (1989) (“I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system.”). From time to time, the Ohio Supreme Court grants lawyers continuing education credits for their service as poll workers. See, e.g., Csaba Sukosd, “Supreme Court Offers CLE Credit for Poll Workers” (March 7, 2022), available at https://www.courtnewsohio.gov/happening/2022/.

2 American Bar Association, “Lawyers encouraged to sign up as poll workers,” (August 31, 2020), available at https://www. americanbar.org/news/abanews/aba-newsarchives/2020/08/lawyers-encouraged-tovolunteer/; Fredreka Schouten and Kelly Men, “Midterm mess: States grapple with poll worker and paper shortages,” CNN (March 29, 2022), available at https://www.cnn. com/2022/03/29/politics/midterm-election-shortages-ctzn/index.html.

3 See Tex. Elec. Code § 3.003.

4 Id. § 3.004.

5 Id. § 3.001, § 1.005(6,18).

6 Id. § 31.094.

7 Id. § 271.002.

8 Id. §§ 31.031-.035.

9 Id. § 31.071, § 31.091.

10 Id. § 32.071.

11 Id. § 32.001, § 32.031.

12 Id. § 83.031, § 85.031.

13 Id. § 272.009.

14 Id. § 32.051.

15 Id. §§ 32.052-.056.

16 Id. § 41.001.

17 Id. § 41.007(d).

18 Id. § 32.094.

19 Id. § 32.091-.093.

20 Id. § 32.114.

21 Id. § 43.007.

22 Alexa Ura, “The hard-fought Texas voting bill is poised to become law. Here’s what it does,” The Texas Tribune (August 30, 2021), available at https://www.texastribune. org/2021/08/30/texas-voting-restrictionsbill/.

23 Tex. Elec. Code § 1.005(4-a), § 33.0015, § 33.002.

24 Id. § 33.0031, § 33.006, § 33.008.

25 Id. § 33.056, § 33.058, § 61.014.

26 Id. § 32.075.

27 Id. § 32.002(c).

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Election workers confirm voter identification at a poll check-in.

Election officials are responsible for setting up, securing, and returning election equipment and materials.

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Historic Precedent Hits Close To Home For One Local Lawyer By Calhoun Bobbitt Louisiana Governor John Bel Edwards (fourth from the right) was joined by Plessy & Ferguson descendants outside the New Orleans Center for Creative Arts on January 5, 2022.

I

n 1989, a certain law student in Professor Anderson’s 1L constitutional law course at St. Mary’s University School of Law was called on to stand up and give his brief on Plessy v. Ferguson, 163 U.S. 537 (1896). That student had “efficiently” (scantily) prepared that morning with only Cliff Notes. Professor Anderson readily determined that his student had not studied the case properly, asked him to sit down, and called on another student, who regaled the class with the vagaries of the seminal Supreme Court case to Professor Anderson’s complete satisfaction.

Years later, that “efficient” student had graduated from law school, passed the bar, and established a thriving career in trust and estate law.

He had also finally studied Plessy v. Ferguson in depth. His newly found fascination with the case came not from a textbook, however, but from ancestry.com. The student would later become, and still is, my law partner, John H. Ferguson IV (“John”), and in 2009—as a result of a labor of love in building a family tree on the genealogical website—he learned he was the great-great-grandson and namesake of Judge John Howard Ferguson, the “Ferguson” in the infamous 1896 case.

On January 5, 2022, and at the invitation of Governor Jon Bel Edwards of Louisiana, John attended the Posthumous Pardoning Ceremony for Homer Adolph Plessy in New Orleans. The pardoning of Homer Plessy by Governor Edwards was the very first pardon of its kind granted in Louisiana under the Avery C. Alexander Act (La. R.S. 15:572.9)(“Alexander Act”).

Rev. Avery C. Alexander and a Path to Pardon The Alexander Act bears the name of Avery Caesar Alexander, who was born in Terrebone Parish, Louisiana, in 1910.1 In 1944, Alexander was ordained as a Baptist minister. As a member of the National Association for the Advancement of Colored People (“NAACP”), he participated in numerous civil rights protests and boycotts, including the boycott of New Orleans Public Service Inc., to force them to hire 16 San Antonio Lawyer® | sabar.org

black bus drivers; the march from Selma to Montgomery; and sit-ins to integrate lunch counters in New Orleans. In 1975, he was elected to the Louisiana House of Representatives, and he represented Louisiana’s District 93 until his death in 1999.

Enacted in 2006, the Alexander Act creates a mechanism for pardoning individuals “convicted of violating a state law or municipal ordinance the purpose of which was to maintain or enforce racial separation or discrimination of individuals[.]” La. R.S. 15:572.9(B) (1). The bill was introduced by Louisiana State Senator Edwin R. Murray, who wanted to honor “civil rights heroes” and help them remove criminal convictions that excluded them from certain schools and professions.2 As originally drafted, the bill would have mandated pardons for the certain convictions arising out of civil rights activism.

However, after some civil rights activists told him that they were proud of their convictions and did not want them expunged, then-Senator Murray revised it to make pardons available but not mandatory.

Upon receiving such an application, the Board of Pardons is required to grant the pardon, although the district attorney of the parish where the violation occurred may object. Id. The Board of Pardons must submit the application to the governor within fourteen days of its submission, unless “it is objected to by the state on the grounds that the conviction did not result from a violation of a law the purpose of which was to maintain racial separation or racial discrimination of individuals.” Id. If the person so convicted is deceased, the application may be filed by relatives “or any interested individual.” La. R.S. 15:572.9(B)(1).

Homer Plessy, as all law students learn, was one of the many individuals convicted of violating a law the purpose of which was to maintain racial separation in the Jim Crow South.

Homer Plessy’s Infamous Conviction June 7, 1892—some 130 years ago—Mr. Plessy was arrested in New Orleans for violating the Louisiana Separate Car Act of 1890, an

egregious law requiring passenger railways to have separate train car accommodations for black and white passengers, provided that each would be equal in the amenities such train car offered—in other words, separate but equal. Homer Plessy had purchased a ticket for the firstclass carriage on the East Louisiana Railroad Company train bound for Covington, Louisiana, and was arrested for refusing to leave the white car and sit in the “colored car,” as required by the Separate Car Act. He was presented the next day before Judge John Howard Ferguson, the criminal district court Section A Judge for the Parish of New Orleans, Louisiana.

Judge Ferguson faced a difficult moment. Personally, he disagreed with the public policy of segregation; and in a case involving Daniel F. Desdunes—the son of civil rights activist Rodolphe L. Desdunes— Judge Ferguson released Desdunes when the Louisiana Supreme Court had declared the Separate Car Act, as applied to interstate passenger railways, to be unconstitutional under the Fourteenth Amendment. In Plessy’s case, though, Judge Ferguson found that the state could choose to regulate railroad companies that operated solely within Louisiana and found Plessy guilty of not leaving a “white car.” Plessy appealed the case to the Louisiana State Supreme Court, which affirmed the decision.

Plessy then petitioned the Supreme Court of the United States, where Judge John Howard Ferguson himself was named in the case because he had been named in the petition to the Louisiana Supreme Court.

The Supreme Court’s infamous decision in Plessy v. Ferguson upheld the constitutionality of racial segregation and green-lighted the enactment of several laws by southern states that created the Jim Crow regime that plagued the country for decades. United States Supreme Court overruled Plessy fifty-eight years later in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

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Desdunes: Setting the Stage for Plessy Homer Adolph Plessy has been, and properly should be, widely celebrated for his act of civil disobedience on June 7, 1892, in challenging the Louisiana Separate Car Act of 1890, a racist law requiring separation of the races on passenger trains. Less well known, however, is Daniel F. Desdunes, the son of Rodolphe Lucien Desdunes, a civil rights activist, journalist and politician, who—with Louis A. Martinet and others— founded the Comite des Citoyens (Citizens Committee) to challenge laws that negated the rights of Black New Orleans residents after Reconstruction, including most notably the Separate Car Act. On January 24, 1892, three months before Plessy’s arrest, Daniel Desdunes had also boarded a “whites only” car in a first attempt to constitutionally challenge segregation of the races. Desdunes held a first-class ticket for passage from New Orleans to Mobile, Alabama, and he took a seat in an all-white passenger coach. He was ordered removed, and although he stated he was an interstate passenger, he was nevertheless removed from the train and arrested.

In court, Daniel Desdunes declared that his sole intention was to test the constitutionality of the Louisiana Separate Car Act, and he was released on a $500.00 bond to await his court date. During the pendency of his case, the Louisiana Supreme Court ruled that the Separate Car Act could not be applied to a passenger engaged in interstate travel. See State ex rel. Abbott v. Hicks, 44 La. Ann. 770 (1892). Thus, the case against Daniel Desdunes was dropped, and Judge John H. Ferguson ordered Desdunes released.

To test the Separate Car Act as applied to intrastate railway travel, the Citizen’s Committee instructed Plessy to purchase a first-class ticket on the East Louisiana Railway for a two-hour trip from New Orleans to Covington, Louisiana. On the afternoon of June 7, 1892, Plessy boarded the train at the Press Street station in New Orleans and was promptly arrested and taken into custody. He was presented to Judge Ferguson and found to have violated the Act. Although Plessy’s legal team argued that the Orleans Parish Criminal District Court lacked authority in the case against Plessy because the Separate Car Act of 1890 violated the United States Constitution, Judge Ferguson overruled the jurisdictional plea. As with Abbott v. Hicks, Plessy’s team took the case to the Louisiana Supreme Court, which affirmed, and then appealed to the United States Supreme Court, which also affirmed in the nowinfamous Plessy v. Ferguson, 163 U.S. 537 (1896).

September–October 2022 | San Antonio Lawyer® 17

Plessy and Ferguson Alter The Legacy Of The Notorious Decision In 2009, descendants of Judge Ferguson and Homer Plessy formed the Plessy and Ferguson Foundation (www.plessyandferguson.org).

Their mutual goal was to honor successes of the civil rights movement.

One of the foundation’s first acts was to place a historical marker at the corner of Press Street and Royal Street, the site of Homer Plessy’s arrest in New Orleans on June 7, 1892. That intersection is now formally marked “Homer Plessy Way.” John presently serves on the Board of the Foundation, which creates new ways to teach history of civil rights through film, art, and public programs designed to preserve understanding of this historic case and its effect on the American conscience. Several historical markers have been placed throughout New Orleans as a result of the Plessy and Ferguson Foundation’s work.

The Plessy and Ferguson Foundation asserts that the 1892 arrest of Homer Plessy was part of an organized effort by citizens to challenge the Separate Car Act. While many consider the civil rights movement to have begun in the 1950s, communities were organizing for equal rights much earlier. The use of civil disobedience and the court system was developed by activists who preceded the Civil Rights Movement of the 20th century. Although the United States Supreme Court ruled against Plessy in 1896, the majority opinion catalyzed Justice John Marshall Harlan’s Great Dissent, in which he declared that “our Constitution is color-blind,” that “in this country there is no superior, dominant ruling class of citizens,” and that it is wrong to allow the states to “regulate the enjoyment of citizens’ rights solely on the basis of race.”

The full gubernatorial pardon of Homer Plessy in New Orleans came as a direct result of a letter of appeal made to the Louisiana Board of Pardons and Parole and signed by descendants of both Homer Adolph Plessy and Judge John Howard Ferguson, including San Antonio’s own John H. Ferguson IV. Calhoun Bobbitt is Of Counsel to Drought, Drought & Bobbitt LLP. He is Board Certified in oil, gas, and mineral law, and he has represented parties in oil and gas transactions and litigation since 1976.

ENDNOTES The biographical information about Rev. Alexander was obtained from Rev. Avery Caesar Alexander, Notable African Americans from Louisiana, http://www.nutrias.org/~nopl/ info/aarcinfo/notabl2.htm (last visited 8/8/22).

2 Murray Made Plessy Pardon Possible, LSU Health New Orleans, https://www.lsuhsc.edu/newsroom/Murray%20Made%20Plessy%20Pardon%20 Possible.html (last visited 8/8/22).

1

18 San Antonio Lawyer® | sabar.org

Louisiana Governor John Bel Edwards greets Ferguson descendants at Plessy Pardoning Ceremony.

Louisiana Governor John Bel Edwards and John Ferguson shake hands near Homer Plessy Way, the intersection of Press Street and Royal Street in New Orleans.

Highlights of the Current Local Civil Rules in the Western District of Texas

By Leslie Hyman

E

ffective June 24, 2021, both the Local Civil Rules and the Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases for the United States District Court for the Western District of Texas were revised. The last complete substantive revision was in 2011.

The Goals There were three goals for the latest revisions: (1) to harmonize the Local Civil Rules with the Federal Rules of Civil Procedure, which had been amended since the enactment of the last Local Civil Rules; (2) to increase consistency and readability; and (3) to address issues that frequently arose under the existing Local Civil Rules.

The Revision Process The revised rules are the result of a nearly two-year process that included several in-person meetings and hours of other work by the Local Court Rules Committee, input from practitioners, input from the judges, unanimous approval by the district judges of the Western District, and approval by the Fifth Circuit Rules Committee, acting for and on behalf of the Judicial Council of the Fifth Circuit. The Local Civil Rules were then adopted and enacted by order of Chief Judge Orlando L. Garcia.

The Committee was chaired by the late District Judge Philip Martinez who served in El Paso, together with District Judge Lee Yeakel from Austin and Magistrate Judge Elizabeth “Betsy” Chestney from San Antonio. In order to ensure that various civil practices across our 93,000-square-mile district were considered, the Local Rules Revision Committee also included attorneys from the San Antonio, Austin, Del Rio, Midland-Odessa, and El Paso Divisions. University of Texas Law Professor Steven Goode served as the reporter, but his role also included offering invaluable advice on changes to the Federal Rules of Civil Procedure. He also kept the style, formatting, and grammar consistent.

Key Rule Changes The Committee reviewed every local civil rule and the relevant appendices. Changes were made to almost all of the rules, although some of the changes were minor. This article highlights the key substantive changes.

Rule CV-5.2 – Documents Filed Under Seal. Rule CV-5.2 was new in 2011. The changes are intended to emphasize the original intention of the 2011 Local Court Rules Committee that filing under seal should be limited to exceptional circumstances, and that redaction or drafting

to allow confidential information to be placed in an appendix are both preferable methods of dealing with confidential information. The rule also reminds filing parties that sealed documents must be served outside of the CM/ECF system.

Rule CV-7 – Pleadings Allowed; Form of Motions. Rule CV-7 governs motions practice in the Western District of Texas. The 2011 revisions had created a distinction between dispositive and nondispositive motions with non-dispositive motions having lower page limits and tighter timing. Despite the fact that the rule defined “dispositive motions,” there seemed to be ongoing confusion regarding what was considered dispositive. The practitioners on the Committee also felt that certain nominally non-dispositive motions, such as motions to strike experts, many be critically important to a case and require a more comprehensive substantive response. The Committee agreed to abandon the dispositive/non-dispositive distinction in favor of a distinction based on whether or not the motion concerns case management and discovery.

Discovery and case management motions are limited to fewer pages and shorter response and reply times in order to allow for quick resolution by the court, which should help avoid the possibility that these types of motions may derail case preparation. Only these motions require a proposed order although parties are welcome to submit a proposed order with any motion or response. All other motions practice is now governed by the increased pages and longer response and reply times that were previously applicable only to dispositive motions. The dispositive/nondispositive distinction is retained solely for the requirement of conferral before filing a motion. Parties are still excused from calling opposing counsel to confer on a dispositive motion.

New Rule CV-15 – Amendment of Pleadings. Rule CV-15 is a new rule intended to harmonize the Western District’s motions practice with Federal Rule of Civil Procedure 15(a). The new local rule provides that, notwithstanding the Rule CV-7 time limit for responding to a motion, a party may respond to a FRCP Rule 12 motion to dismiss by filing an amended pleading within the 21 days set forth in FRCP 15 and that, under those circumstances, no motion for leave to amend is required.

Rule CV-16 – Pretrial Conferences; Scheduling; Management.

Rule CV-16 was amended to reference a new approved form of FRCP 26(f ) report, which is contained in a new Appendix N. Rule CV-16 was also amended to give parties 14 days after the close of discovery, rather than 7, to file discovery motions relating to events occurring during the final week of discovery.

Rule CV-30 – Depositions Upon Oral Examination. Rule CV-30 was amended to conform deposition objections to the practice used in September–October 2022 | San Antonio Lawyer® 19

Texas state courts. The new language reads: “Absent an agreement by the parties, objections to questions during a deposition are limited to ‘Objection, leading’ and ‘Objection, form.’ Objections to testimony during a deposition are limited to ‘Objection, nonresponsive.’ Any objections to the form of the question or responsiveness of the answer are waived if not properly stated during a deposition. All other objections need not be made or recorded during a deposition to be later raised with the court.” The Committee felt that most litigators in Texas were comfortable with the Texas practice, which has significantly curtailed speaking objections.

Rule CV-54 – Costs and Attorney’s Fees. Rule CV-54 was amended to clarify the procedure for bills of costs. The procedure for recovery of attorney’s fees previously located in Rule CV-7 is now contained in Rule CV-54.

Rule CV-88 – Alternative Dispute Resolution. Rule CV-88 was amended to require mediation in every case unless the court orders otherwise sua sponte or on motion by a party. This change came at the request of practitioners on the Committee who explained the potential benefits of mandatory mediation such as avoiding any perception of weakness (in the eyes of the opposing party or their own client) caused by proposing mediation.

Appendices H-1 and H-2 – Form Protective Order. There are now two approved forms of protective order—one with an “attorneys’ eyes only” designation and one without. The Committee felt that most cases did not call for the “attorneys’ eyes only” designation.

Changes to the CM/ECF Procedures In addition to revising the Local Civil Rules, the Committee revised the Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases. The main addition concerns attachments to filings and requires “[a]ll documents other than the main document, such as an appendix, exhibit, affidavit, or a supplement” to be submitted as separate PDFs documents. It further requires that those documents “be given a description that corresponds to the name used in the main document. For example, if the main document refers to ‘Exhibit A [Smith Declaration],’ the Category must be ‘Exhibit’ and the Description must be ‘A – Smith Declaration.’” Although most of the other changes were non-substantive, if it has been a while since you reviewed these procedures, it is time for a refresher!

Conclusion This article highlights only the key substantive changes between the 2011 revision to the Local Civil Rules and the current version. A complete set of local rules is available on the Western District website at https:// www.txwd.uscourts.gov/court-information/lcr-introduction/.

As a reminder, in addition to the local rules most of the judges of the San Antonio Division and certain other judges in the district have provided guidance as to their preferences in the form of fact sheets.

The fact sheets, as well as the judges’ and District’s standing orders, are available at https://www.txwd.uscourts.gov/judges-information/ standing-orders/.

L eslie Hyman is partner with Pulman, Cappuccio & Pullen, LLP, where her practice focuses on commercial litigation in state and federal courts. She chairs the San Antonio Bar Association’s Federal Courts Committee and served on the local rules committees that resulted in both the 2011 and 2021 revisions.

20 San Antonio Lawyer® | sabar.org

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Dan Naranjo Recalls How the Tower of the Americas Got Its Name

By Dan A. Naranjo

T

he Tower of the Americas is one of San Antonio’s most wellknown landmarks, but where did its name come from? The answer is Dan A. Naranjo. Asked about how that happened, Dan recalls:

I grew up on the southside of San Antonio, and during my childhood, I never ventured farther than Corpus Christi. After graduating from Brackenridge High School in 1957, I dreamed of seeing the world.1 I applied and was accepted to the University of Texas at Austin with a nearly full-ride scholarship, which entailed paying a mere $25 per semester. My academic career continued at UT Law, where I received my Juris Doctor degree in 1963.

As a college freshman, I was commissioned as a United States Air Force Reserve Officers’ Training Corps cadet, and after graduation I was commissioned as a second lieutenant. Immediately following graduation from law school, I started my contractual four years of service to the Air Force, just as the Vietnam conflict began. I served as a special agent in the Office of Special Investigation (OSI), which conducts criminal investigations and counterintelligence operations. I was deployed to Washington D.C., El Paso, and Panama. While in Panama, I worked in the Canal Zone as an intelligence analyst. I studied CIA background data to determine if there were any counterintelligence threats aimed at either of the two main air bases in Panama: Albrook Air Force Base (headquarters of the Southern Command) and Howard Air Force Base where OSI was headquartered. During off-hours, I taught English to Panamanian students at the U.S.-Panama cultural institute.

Growing up, Dan’s grandsons Dylan and Daniel Corso always referred to the Tower as “Opi’s Tower,” referring to their grandfather’s role in naming the iconic landmark.

22 San Antonio Lawyer® | sabar.org

While stationed in the Panama Canal Zone, I remained in touch with my roots by reading the Sunday edition of the San Antonio Light. One day, I noticed an article soliciting a unique name for the proposed construction of a tower located in the center of the 1968 World’s Fair, Hemisfair. At the time, I resided at the base officers’ quarters at Albrook but worked at Howard. My daily commute included crossing the “Bridge of the Americas.” It occurred to me that adopting the name “Tower of the Americas” from “Bridge of the Americas” would be a fascinating way to connect the World’s Fair in San Antonio to an iconic structure in Panama.

The Tower of the Americas is the quintessential backdrop for celebrations in San Antonio.

Why not connect and unite a Central American landmark with the proposed San Antonio landmark?! Surprisingly, my submission to name the proposed tower the Tower of the Americas was selected! These days, I am thrilled that the Tower of the Americas will be the focal point for the redevelopment of the Hemisfair District, and I am hopeful that the Tower will trigger even more significant reinvestment in the area. The Hemisfair Conservancy is working to create one of the world’s most remarkable public spaces!

Submitting the winning name for the Tower of the Americas also inspired my interest in, and commitment to, other San Antonio’s landmarks. While touring Malta, I learned of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) program for World Heritage Sites. So impressed with the potential for San Antonio, I consulted with Father David Garcia, then the Archbishop of San Antonio, to begin the recognition process to make the old Spanish missions a World Heritage Site. After years of collaborative work,

The Tower of the Americas stands out no matter where you are in the city.

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My daily commute included crossing the “Bridge of the Americas.” It occurred to me that adopting the name “Tower of the Americas” from “Bridge of the Americas” would be a fascinating way to connect the World’s Fair in San Antonio to an iconic structure in Panama. Why not connect and unite a Central American landmark with the proposed San Antonio landmark?!

UNESCO recognized the old Spanish missions as a World Heritage site in 2015. Such recognition would not have happened without the help of the many county and city officials and volunteers who dedicated their time to the goal. This legacy will endure for countless generations. Among my mentors are the esteemed former Mayors Phil Hardberger,2 Nelson Wolff, and Henry Cisneros. They dramatically improved the city of San Antonio and are exemplars of community servants.

The Tower of the Americas will anchor redevelopment of the Hemisfair Plaza area.

My love of travel has spurred my continued research and study of international and domestic conflict resolution. After more than fifty years, I remain passionate about the value of international travel and the importance of international laws.3 My passion for international travel and culture has been passed down through generations to my two grandsons, Dylan and Daniel Corso. The three of us have vowed to travel the world together after taking trips to the Caribbean and Alaska!

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Dan Naranjo, J.D., is a MartindaleHubbell AV-rated attorney, mediator, and arbitrator. Since 1998, he has used his legal experience to train the next generation of mediators while serving as an adjunct at St. Mary’s University School of Law until 2017.

He continues to serve as an arbitrator for the American Arbitration Association (AAA) and the International Institute for Conflict Prevention & Resolution (CPR), and he lectures frequently on ADR topics. He has lectured at the World Court at The Hague on International ADR on behalf of the American Bar Association, Judicial Division Litigation Section.

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ENDNOTES Dan’s life and impactful 50-year legal career were the subject of an article entitled Texas Bar Foundation Honors Dan A. Naranjo as an Outstanding 50-Year Lawyer in the November-December 2018 issue of the San Antonio Lawyer.

2 For a fascinating review of Phil Hardberger’s many contributions to San Antonio, please see The Adventures of Phil Hardberger in the July-August 2022 edition of the San Antonio Lawyer.

3 Dan and the Honorable Sichan Siv co-authored The Permanent Court of Arbitration at The Hague – Continuing Efforts For World Peace in Asia and North Korea, which was published in San Antonio Lawyer January-February 2020 edition.

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Fourth Court Update

What Do You Mean It’s a Final Judgment?

By Justice Irene Rios

“A

n appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments.” Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000).

A judgment rendered after a conventional trial on the merits is presumed final and appealable; however, no such presumption exists for other judgments rendered, such as default judgments, summary judgments, or orders of dismissal. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199 (Tex. 2001). This poses the question: What if a judgment for appeal purposes is final on its face—that is, by its own express terms—while the record shows an insufficient legal basis for its rendition?

To dispel confusion, the Texas Supreme Court in Lehmann held the inclusion of a Mother Hubbard clause—“all relief not granted is denied” or similar words—fails to indicate finality for purposes of appeal. Id. at 203-04. It reasoned the clause’s inclusion in orders on interlocutory motions, such as partial summary judgments, created ambiguity because such language “may mean only that the relief requested in the motion— not all the relief requested by anyone in the case—and not granted by the order is denied.” Id. at 204. The court further held that “an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” Id. at 205 (emphasis added).

The supreme court reaffirmed that clear and unequivocal language disposing of all claims and all parties renders the record irrelevant in determining whether the order is final and appealable. See In re Elizondo, 26 San Antonio Lawyer® | sabar.org

544 S.W.3d 824, 829 (Tex. 2018)(orig. proceeding). Stated differently, the reviewing court must take the order at face value despite any indications in the record that one or more parties did not intend for the judgment to be final or the order did not dispose of all claims and parties. See id. at 827-28. The reviewing court will look at the record only if the order is not clear and unequivocal as to finality. See id. at 827. The Lehmann court opined that an order stating the “judgment finally disposes of all parties and all claims and is appealable” exemplifies a trial court’s intent to completely dispose of the case. 39 S.W.3d at 206.

In Bella Palma v. Young, Bella Palma sued Mark Young and Timothy Young d/b/a Texcore Construction and Texcore Construction Specialties for declaratory judgment and monetary damages arising from a commercial construction project.

601 S.W.3d 799, 800 (Tex. 2020). Although Timothy was never served, Bella Palma moved for summary judgment against Paul and Timothy. Id. The judgment’s finality language stated: “All relief not granted herein is denied.

This is a final judgment.” Id. The intermediate appellate court abated the appeal and asked the trial court to clarify the judgment’s finality.

Id. The trial court issued a “Clarifying Order Confirming Final Judgment” (“Clarifying Order”), confirming it intended the judgment to be final for all purposes, to be appealable, and to dispose of all claims, all parties, and all claims between the parties. Id. The trial court further clarified it considered all claims against Timothy discontinued. Id. Despite the trial court’s statement that the judgment was final and appealable, the intermediate appellate court concluded the judgment was not final—and, thus, not appealable—based on its independent review of the record, and dismissed the case for lack of jurisdiction.

Id. at 801.

The supreme court held the intermediate appellate court was required to take the Clarifying Order at face value and erred when it reviewed the record to resolve the issue of finality. Id. at 802. The Texas Supreme Court’s holding in Bella Palma again reaffirmed that an unambiguous order, which may be later clarified, clearly purporting to dispose of all claims and all parties is final despite lacking a legal basis in the record for its rendition. Such an order is “erroneous, but final.” Elizondo, 544 S.W.3d at 829.

Because the erroneous inclusion of finality language in an order amounts to judicial error in rendition—and cannot be later corrected with a judgment nunc pro tunc—counsel should carefully review a proposed order for finality language and, if the trial court renders an order that erroneously includes finality language, counsel should move to correct the order before the trial court’s plenary power expires. In re Daredia, 317 S.W.3d 247, 249-50 (Tex. 2010) (orig. proceeding).

Failure to do so may result in the unintended consequence of an interlocutory order becoming final and disposing of all claims and all parties. This could have a disastrous effect if the error is not cured before the trial court’s plenary power expires or an appeal is not timely perfected. See, e.g., In re Elizondo, 544 S.W.3d at 829 (holding the trial court could not correct its judgment after plenary power expired when the trial court erroneously disposed of plaintiff’s outstanding claims because an order intending to remove a lien contained unambiguous finality language disposing of other claims); In re Daredia, 317 S.W.3d at 249 (holding default judgment against one defendant that stated it “disposes of all parties and all claims” and is “FINAL” unintentionally and erroneously rendered default judgment against another defendant who filed an answer, but the error could not

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be corrected because the trial court’s plenary power had expired and time to file a notice of appeal had lapsed); In re City of Houston, No. 01-19-00805-CV, 2020 WL 2026978, at *2 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, orig. proceeding) (holding, in a suit against a police officer and the City of Houston, a judgment that only referenced dismissal of the suit against the officer also dismissed suit against the city because the judgment’s finality language, “dispos[ing] of all parties and claims and is final and appealable[,]” rendered the judgment final as to both parties “even though it should have been interlocutory”).

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 has served as a Special Master of major litigation.

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Federal Court Update

Western District of Texas Court Summaries

By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis

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

Judicial Deference to State Legislatures Texas Democratic Party, et. al, v. Scott, No. SA-20-CA-438-FB (Biery, F., July 22, 2022).

In this case of first impression, Judge Biery doesn’t disappoint. The case presents two main issues: “(1) Does the clear text of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mean what it says, thus rendering Texas’s age restriction on mail-in voting unconstitutional?

(2) Is this Court, irrespective of what it believes the law should be, obligated to follow appellate guidance and the interpretative trend of the evolving concept of judicial deference to state legislatures regarding voteby-mail procedures?” While the short answers are found quickly on page 2 (resulting in a grant of the defendant’s motion to dismiss), practitioners ought to indulge themselves and read on. As only Judge Biery can, this opinion takes the reader down a path of soliloquy and provocative poetry, leaving one with the impossible task of determining which quote or phrase is most apropos. Which sentiment best captures the moment, or do they all? There are so many paths, which all converge on one concept: vote. This author’s favorite might be: “Yes, it is burdensome to be a citizen in a democracy and inconvenient to go to the polls, though those who gave their lives so we could, would wonder why they did if we don’t.

Democracy dies not always by conquering armies but by the slow death of sloth.” Judge Biery’s full opinion may be found in the Notable Cases section of the Western District’s website at https://www.txwd.uscourts.gov.

30 San Antonio Lawyer® | sabar.org

Diversity Jurisdiction; Improper Joinder; Texas Insurance Code § 542A.006 N&O Holdings LLC v. State Auto. Mut., No. SA-22-CV-0186-JKP (Pulliam, J., May 11, 2022).

The plaintiff sued an insurer and its nondiverse adjuster-agent. Subsequently, but before removal, the insurer elected to accept liability for its adjuster-agent pursuant to Texas Insurance Code § 542A.006. After removal, the insurer moved to dismiss its adjuster-agent pursuant to § 542A.006. The court noted a “split of authority” in cases involving post-suit election of liability under § 542A.006 before removal of the state court action. The court followed its prior decisions holding that a post-filing, pre-removal election under § 542A.006 makes the case removable under diversity jurisdiction. The court noted that this is an area of law that is “notoriously opaque” and presents a “close question of law.” But Fifth Circuit precedent analyzing improper joinder focuses on a plaintiff’s possibility of recovery against a defendant at the time of removal, not as the plaintiff’s claims existed when first made, and there is no ambiguity in Texas law that the plaintiff had no possibility of recovery against adjuster-agent at the time of removal.

The court granted dismissal of the adjusteragent and found complete diversity exists.

Dismissal was without prejudice; while § 542A.006 provides for “dismissal with prejudice following an insurer’s election,” the Fifth Circuit requires that an improperly joined party be dismissed without prejudice.

Election Law; Standing; Legislative Privilege La Union Del Pueblo Entero v. Abbott, SA21-CV-00844-XR (Rodriguez, X., May 24 and 25, 2022).

Texas enacted the Election Protection and Integrity Act of 2021 (S.B. 1), which altered various election practices and procedures. The United States sued Texas alleging violations of the Voting Rights Act of 1965 (VRA) and the Civil Rights Act of 1964 (CRA). Private plaintiffs also filed suit, and the cases were consolidated.

The court denied Texas’s motion to dismiss the United States’ claims. First, the court held that the United States has standing to sue Texas in federal court to enforce the VRA or CRA. The United States alleges injury to the general welfare—here, the constitutional right to vote—and seeks to ensure the supremacy of its laws, establishing standing under the Supreme Court’s 1895 case of In re Debs. And under the modern 3-part standing test, the United States established an injury-in-fact (a concrete harm to its sovereignty when its laws are violated), and that its injury was traceable to the defendants and a favorable judicial determination will redress the injury (the Texas Secretary of State is the chief election officer).

Second, the court rejected Texas’s arguments that the United States failed to state a claim under the VRA or CRA. The U.S. Attorney General has the statutory authority to enforce those federal statutes, and the United States plausibly alleged that S.B. 1 is inconsistent with both the VRA and CRA. The United States’ claims may proceed.

The court also granted plaintiff League of United Latin American Citizens (LULAC)’s motion to compel hundreds of documents from Texas Representatives and Senators who sponsored S.B. 1 concerning the reasons for and anticipated effects of S.B.1. The court overruled claims of legislative privilege, finding waiver based on disclosure to thirdparties and the executive branch and finding that the balance of interests—including the need for accurate fact finding—favored disclosure. The court also overruled assertions of attorney-client, work-product, and investigative privilege.

Improper Joinder; Diversity Go Green Botanicals, Inc. v. Drexler Ins. Servs., LLC, 5:22-CV-373-XR (Rodriguez, X., June 23, 2022).

Plaintiff Go Green Botanicals submitted a claim for business interruption losses under the Business Income Loss provisions of its commercial property insurance policy resulting from the State of Texas and Bexar County’s emergency orders concerning COVID-19. The plaintiff alleged the claim was improperly denied and sued defendants Tri-State Insurance Company of Minnesota and Drexler Insurance Services, LLC in Bexar County District Court.

Tri-State removed the case on the basis of diversity and contended that though Drexler was a citizen of Texas, Drexler was an insurance agent whose citizenship should be disregarded because it was improperly joined.

Plaintiff filed a motion to remand.

Because the petition omitted discrete facts about Drexler’s alleged actionable conduct, the court found it necessary to pierce the pleadings and conduct a summary inquiry to establish each of the defendants’ roles with respect to the policy. The court concluded Drexler operated as an insurance agent rather than an insurer, and the plaintiff’s failure to set forth specific factual allegations as to Drexler was fatal to claims for breach of contract, bad faith, violations of the Texas Insurance Code, and conspiracy. To the extent the claims arose out of an alleged misrepresentation about the policy, the court held the plaintiff failed to satisfy the heightened pleading requirements of Rule 9(b). The court denied the motion to remand and dismissed all claims against Drexler without prejudice.

Motion to Dismiss; Failure to State a Claim Johnson v. Callanen, SA-22-CV-000409-XR (Rodriguez, X., June 21, 2022 and July 7, 2022).

Visually impaired individuals and otherwise disabled Texans sued the Bexar County Elections Administrator and Bexar County for violations of Title II of the American with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act arising out of the vote by mail process. The Texas Election Code gives Texas voters the right to “vote in secret and free from intimidation,” and also permits certain voters to vote by mail.

The plaintiffs allege that since Bexar County provides mail-in ballots in paper form only, they are unable to vote by mail independently and privately since the paper mail-in process requires assistance to complete. The plaintiffs had requested electronic “mail-in” ballots like those offered to active military or overseas individuals who are eligible to vote by mail as a reasonable accommodation, which the Administrator denied.

The defendants moved to dismiss, contending, in part, the Election Code already provides reasonable accommodations for disabled individuals in that they may vote in person. Further, the defendants contended nothing in the Texas Elections Code authorized the Administrator to provide visually impaired and otherwise disabled voters the opportunity to vote by mail in the same manner (electronically) that active military and overseas eligible voters currently vote by mail.

The court denied in part and granted in part the motion to dismiss. The court found the plaintiffs stated a plausible ADA claim. The court rejected the defendants’ argument that accommodations exist because the plaintiffs may instead vote in person. The plaintiffs allege harm concerning their opportunity to vote by mail, not in person.

The court granted the defendants’ motion to dismiss the Rehabilitation Act claim; the plaintiffs failed to allege the Administrator or the Bexar County Elections Department receives or directly benefits from federal financial assistance, or benefits from federal financial assistance in connection with the administration of elections generally or voting by mail specifically.

On July 7, 2022, the court heard the plaintiffs’ motion for preliminary injunction.

The court denied the motion without prejudice, finding there was no evidence in the exhibits or

briefing to explain how Bexar County’s current electronic system precisely operates and how eligible voters who are visually impaired receive, access, complete, print, sign, and return by mail their electronic ballot and whether they may do all of that privately and independently. Without this evidence, the court held the plaintiffs failed to show a substantial likelihood of success on the merits and were not entitled to injunctive relief.

Attorney Fees; FLSA Case; Lodestar/Johnson Factors Richards v. AT&T Servs., No. SA-20-CV00685-JKP (Pulliam, J., June 27, 2022).

Following the settlement of this FLSA case for less than $5,000, the plaintiffs sought recovery of nearly $100,000 in attorney fees for work billed by five attorneys and one paralegal.

The court conducted the two-step lodestar/ Johnson analysis, an approach used by the Fifth Circuit but which the court also noted has perhaps been “called into question” by the United States Supreme Court. Step one is the lodestar calculation of the attorney fee award where the requesting lawyer has the burden of showing the reasonableness of hours billed and the exercise of billing judgment. Billing judgment requires proof of hours charged and those hours written off as unproductive, excessive, or redundant. While affidavits from attorneys practicing in the relevant community would be proper, here the billing attorneys only provided two affidavits from attorneys at their own firm. Thus the court used the State Bar of Texas 2015 Hourly Rate Survey adjusted to current day rates. The court found relevant that the billing attorneys’ rates had previously been reduced by other federal courts, and that they had never been awarded the rates charged presently. Attorneys who presented no affidavits had their rates reduced to the median rate, while those that provided affidavits had their rates adjusted upward slightly from the median rate due to experience and credentials.

Overall, hourly rates were nearly cut in half.

The number of reasonable hours spent was also reduced by the court for vague entries and blatant inconsistencies and for work related to other litigation. Duplicative work that was a result of overstaffing is not reasonable.

Further, while all attorneys on a matter need to review the file’s progress, not all duplicative and repetitive work is recoverable, and the exercise of billing judgment would show how this double or triple billing should have been reduced to be reasonable. The court would

September–October 2022 | San Antonio Lawyer® 31

Federal Court Update

not award attorney fees for clerical work, even if a lawyer performed such work. Notably, AT&T provided a chart that helped show how the billing entries were vague, inaccurate, or unrelated to the present case. Step one led the court to reduce the lodestar award to just below $25,000. Step two is an analysis of whether an adjustment to the lodestar is necessary based on the 12 Johnson factors, being mindful not to repeat a Johnson factor utilized in the lodestar calculation. The court noted that the critical factor in determining whether a Johnson adjustment is warranted is the degree of success obtained, however it also noted that it would be an abuse of discretion to reduce the lodestar solely based on the amount of damages obtained. Given the nature of FLSA claims, it is “not uncommon” for attorney fee requests to exceed the amount of a judgment by “many multiples.” The court declined to make a downward adjustment due to the amount of the judgment and declined further downward adjustments because the Johnson factors had already been applied in step one.

Motion to Transfer Venue Garza v. McCamey Cnty. Hosp. Dist., SA22-CV-00229-XR (Rodriguez, X., June 2, 2022).

A nurse sued her former employer (a hospital in Upton County) in the San Antonio Division. The defendant hospital moved to transfer venue under 28 U.S.C. § 1404(a), which provides, “For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The hospital sought transfer to the Midland/Odessa Division, a venue in which the suit “could have been brought” given the location of the hospital.

The court weighed the parties’ private interests in convenience versus the public’s interest in the fair administration of justice, with the burden of proving “good cause” falling on the defendant, who must persuade the court that “the transferee venue is clearly more convenient,” a burden that is less difficult to satisfy than for forum non conveniens venue challenges. In terms of private interest

factors, that many records could be produced electronically or brought to San Antonio was insufficient, as the Fifth Circuit has held that when all the documents and physical evidence are located in one division, this factors weighs in favor of transfer to that division. The Midland/Odessa Division has subpoena power over all relevant witnesses for both deposition and trial. In terms of cost, the “100-mile rule” was applied, favoring transfer to Midland/Odessa Division. In terms of “all other practical problems that make a trial of a case easy, expeditions and inexpensive,” the court determined that the rural hospital’s concerns about staffing issues as compared to the plaintiff’s need to care for her parents and husband who live with her in San Antonio and need her assistance with daily living tasks, made this factor neutral.

The court determined public interest factors, the familiarity of the forum with the law at issue, and any conflicts of law, were each neutral. Overall, despite technology that would allow electronic delivery of documents and testimony via deposition, the court held that the lone factual connection of plaintiff now living in San Antonio is outweighed by all other relevant events occurring within the Midland/Odessa Division and ordered transfer.

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