San Antonio Lawyer, September/October 2023

Steve Chiscano

Good Work, Humility, and Service: Leading the Bar with Lifelong Values

2023-2024 SABA President

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

8 Steve Chiscano Lives By His Family Mantra: Do Good Work, Practice Humility and Kindness, and Give Back in Service

By June Moynihan

16 SABA’s New Office By

Sofia Garcia

20 Famous American Justices: Chief Justice Earl Warren By

Harry Munsinger

Steve Chiscano at The Founders Monument, which represents the four founding communities of San Antonio—American Indians, Franciscan friars, Presidio soldiers, and Canary Islanders.

Photo by Sofia Garcia

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OFFICERS / DIRECTORS

President

Steve Chiscano

President-Elect

Patricia “Patty”

Rouse Vargas Treasurer

Nick Guinn

Secretary

Jaime Vasquez

Immediate Past President

Donna McElroy

STATE BAR / SA BAR FOUNDATION

Directors (2023-2025)

Kacy Cigarroa

Melissa Morales Fletcher

Elizabeth “Liz” Provencio

Krishna Reddy Directors (2022-2024)

Emma Cano

Charla Davies

Charles "Charlie" Deacon

Jorge Herrera

Executive Director

June Moynihan

State Bar of Texas Directors

Tom Crosley

Lawrence Morales, II

San Antonio Bar

Foundation Chair

Donna McElroy

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

San Antonio Lawyer

July-August 2023

What a great article you wrote about Judge Biery in the current edition of San Antonio Lawyer. I had no idea Sam and Charles Biery were both part of the Fort Worth Mighty Mites team that ran early versions of the spread offense I ran at Baylor!

—Joe Korbel

It is exceedingly well done and captures Judge Biery perfectly.

—Former Judge Royal Furgeson

Steve, many thanks for the brilliant recap of Fred Biery’s life and judicial career. He is a treasure in the San Antonio community and deserves all the praise.

—Art Bayern

Another great article, Steve. You are a gifted writer! Thank you for sharing the link.

—Laurie Weiss

Very well done, Steve. I enjoyed the story and your writing. I have known Fred since he entered SMU Law. As we were both Sumner Scholars, I have known him well for now 53 years. As you correctly noted, he is a good man who happens to also be a good judge.

—Phil Pfeiffer

Steve, this is simply a great story, beautifully written. Congratulations.

—Toby Gerber

Excellent article on Fred. As usual, you caught his personality totally. I read it last night from beginning to the closing paragraph. Good work and my congratulations. . . .

I’ve known and admired Fred for many years. When he went on the federal bench, he left vacant a position on the 4th Court. Ann Richards then appointed me to the vacancy and started me down the political path I followed in later years. I love Fred’s sense of whimsy and his love of language; not common Federal Judge attributes. . . .

—Former Mayor Phil Hardberger

You are right—Judge Biery is a good man and treasure. . . . [T]hanks for the piece and your ongoing service. We need the chroniclers of our legal history, traditions, and characters.

—Bob Rapp

Hi, Steve, Well done. I told Fred that the article is perfect. I have sent it to many members of my family and several of our mutual friends. Thank you for doing such a good job on the article and especially for taking the time to do it. You are and have always been an excellent writer.

—Evelyn Biery

Good Afternoon, Steve, Earlier today I had coffee with Bob Braubach, a fellow Rotarian, who suggested we invite Judge Fred Biery to speak to our Rotary Club. He gave me a copy of San Antonio Lawyer.  I just finished your article. It was so well written. I enjoyed it very much. Before today, I was not aware of Judge Biery, and admittedly he was not what I expected. His life story reads like the hero of a John Grisham novel—the Judge who restores your faith in humanity through his own humanity. No disrespect if you are not a fan—I love John Grisham. He is my favorite. Thanks again. It was joy to read.

—Rachel Castro, Vice President

of Development, The Village at Incarnate Word

To Joani Sullivan [Judge Biery’s Judicial Clerk]:

Great to hear from you! I hope that you are doing well. Yes, I have a copy of the article and really enjoyed reading it. I thought that the author wrote an excellent and interesting piece.

Thank you again and please give my best to Judge Biery and the rest of the chambers.

—Ross W. Evans [former intern for Judge Biery]

Judge Fred Biery U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS

Judge Biery displays his trademark self-deprecating humor in response to congratulations from 1998 State Bar President Richard Pena.

1966 Jefferson teammates—United States District Court Judge Fred Biery and State Bar of Texas President Richard Pena—both make magazine covers 25 years apart!

Congratulations to Steve Peirce of Norton Rose Fulbright, who just received the 2022-23 State Bar of Texas’s Stars of Texas Bars Award (Best Feature Article) for his fantastic profile of Phil Hardberger, which appeared in the July-August 2022 issue of San Antonio Lawyer. Steve has been a member of the SABA Publications Committee since the magazine’s inception in the mid-1990s, and over the years, he has contributed numerous stellar articles about San Antonio lawyers, judges, and dignitaries, including Jane Macon, Larry Macon, Red McCombs, Gus Garcia, Tom Keyser, Charlie Gonzalez, Park Street, Nelson Wolff, Robert Dittman, and Roy Barrera, Sr., to name a few. For the July-August 2023 issue of San Antonio Lawyer, Steve authored the excellent profile of United States District Court Judge Fred Biery, addressed in this issue’s Feedback. Well done, Steve, and thank you for your years of dedicated service to San Antonio Lawyer! —Editors

Steve Chiscano Lives By His Family Mantra:

Do

Good Work, Practice Humility and Kindness, and Give Back in Service

By June Moynihan

Mary Alice Chiscano and her son, Steve Chiscano, photographed in the Spain Room at The Argyle, San Antonio.

Photos by Al Rendon

Steve Chiscano’s lifelong friends will tell you that to know Steve is to know the Chiscano family because the values instilled by Steve’s family have become the hallmarks of his professional reputation.

Steve’s father, Dr. Alfonso “Chico” Chiscano, was a larger-than-life heart surgeon, philanthropist, and cultural ambassador for San Antonio. Born in Tenerife, Canary Islands, he studied medicine in Barcelona, Spain, graduating first in his medical school class. Dr. Chiscano immigrated to Detroit, Michigan, to study cardiothoracic surgery, a specialty reserved for Spain’s elite classes and, thus, unavailable to the young Dr. Chiscano if he stayed in Spain. While in Detroit, he met Mary Alice, a nurse and professor in the Wayne State nursing program. Eventually, the Chiscanos (with their two eldest children) relocated to Houston, where Dr. Chiscano had earned a Clinical Fellowship with the famed Dr. Denton Cooley, the first surgeon to successfully implant an artificial heart.

While living in Houston, Chico and Mary Alice drove to San Antonio to visit the Alamo and Riverwalk. They were surprised to learn that Bexar County was founded by Canary Islanders, and that began the Chiscanos’ magnetic attraction to San Antonio. Soon after, they moved to San Antonio to open a private medical practice.

Mary Alice devoted herself to keeping the family in order while her husband built a reputation throughout South Texas and performed heart surgeries nearly seven days a week. The Chiscano family home was a sprawling hub of activity devoted to their four children—Kristie, Steve, Carina, and Todd—and their various interests. Friends were treated as extended family and, to this day, friends of her children will visit Mary Alice if they are passing through town.

Now that all of her children are successful adults in their own professions, Mary Alice is keen to say that she does not have a favorite child, but “four favorite children.” This is a diplomatic declaration because recently, Steve—as the only child who still lives in San Antonio near his mother—signed off a family text as “Mom’s favorite child,” causing his siblings to protest via text for the next twenty minutes. This joke resurrected the old family dynamic of Steve’s throwing a comic grenade at his siblings, and Mary Alice tamping the emotions to minimize the damage.

Mary Alice says she is lucky that all of her children are thoughtful, kind, and generous, even when they are being playful. She says the most common comment she hears about Steve is that he is loyal to his friends, a trait he has had since childhood. “If you have Steve as a friend, you have a friend for life,” she adds.

Do Good Work

Dr. Chiscano wanted his eldest son, Steve, to follow in his footsteps and practice medicine, but Steve’s mother knew he was wired to be a lawyer. As she explains, “My son was a handful. As a toddler, if he didn’t want to do something, he would throw himself on the floor and just not do it. And once he started to talk, he was very argumentative. It seemed like whatever I wanted to do, Steve would want the opposite, and he’d want to debate the details before participating in any activity.” She confesses her coping strategy was surrender: “I just learned to live with it and scheduled time to argue with Steve before we went anywhere.”

Fortunately, SABA President Steve Chiscano found a way to channel that contrarian energy into a successful career as an attorney. “I got lucky,” Steve demurs. “My introduction to the law started when I was just nineteen years old. It helped me define the work I wanted to pursue.”

Steve’s first job was as a clerk/gofer with Bayne Snell and Krause. It was the summer after Steve’s freshman year at UT-Austin, and he became immersed in the way Barry Snell, Don Krause, and Jorge Vega practiced law. He remembers them as “compassionate people, working hard and doing what is right for their clients.” When Vega joined the Texas

Chiscano family after moving to San Antonio

Saying goodbye to the memories when Dr. and Mrs. Chiscano retired and sold the family home

The final transfer of the keys to the shared Volvo each Chiscano drove to high school

First day in the new home. Left to right: Todd, Kristie, Dr. Chiscano, Mrs. Chiscano, Steve, and Carina

Attorney General’s office as the First Assistant, Steve applied for a job in the Attorney General’s mailroom. “I got to learn about public policy and meet government officials,” Steve recalls. “It was mind-expanding.”

While spending his college breaks in San Antonio, Steve met and became friends with Pedro Roca de Togore, a St. Mary’s University student from Spain, who happened to be the heir to the Ducas de Bejar. This friendship increased Steve’s connections with new people throughout the world, culminating in the adventure of a lifetime when he was a guest on the infamous cruise ship, the MS Achille Lauro. He remembers it as 600 young adults’ biggest spring break. “It was a peek behind the curtain of how the extremely powerful live. I enjoyed a week of rubbing shoulders with scions of business, moguls, and royalty. The liner sank the following year. It was a week to remember and probably the best party that ship ever hosted.”

Not one to shun a good time, Steve jokes that he majored in Beta Theta Pi fraternity at UT-Austin. He spent his junior year abroad in Spain, perfecting his fluency in Spanish. After his school year abroad was over, he and a guitar-playing friend busked for tourists to earn enough money to extend their travels another few weeks. Graduating with a double major in International Business and Spanish, with only a middling GPA and resume highlights of fraternity accolades, however, was not a recipe for law school admission. “I came off of this incredible period of my life of amazing college years and exceptional travel experiences, and then the real world clobbered me with reality when I was not accepted by any law schools,” Steve explains.

The rejection made Steve more determined to become a lawyer. He decided his best chance was at St. Mary’s University School of Law. At the time, the Dean of St. Mary’s University School of Law was Barbara Bader Aldave, who refused his dogged requests for a meeting. “She relayed a message to me to work for one year and reapply. I advise anyone applying for law school to have good grades and a stellar LSAT score, but since I did not have those and did not want to wait, I kept politely requesting a meeting. I sat in Dean Aldave’s waiting room for hours. After three of these awkward visits, she yielded, and I used my in-person visit to implore her to give me a chance.”

Dean Aldave relented only slightly by offering Steve a conditional opportunity. He would be considered for a seat in the incoming class only if they had an available slot and he performed perfectly in a summer preparatory program taught by Professor (later Dean) Charles Cantú. Steve earned a 4.0 and a lifetime fan in Cantú, who shares, “Steve had decided he wanted to be there and worked hard, so no law school dean or professor would regret having him in a class or question if he belonged there.” He continues, “Fifty-two years on faculty has given me some insight on this. Law school requires a level of maturity, and some work and life experience can make the difference in law school success.”

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Steve displayed the same tenacity throughout law school, and it paid off. “The most impressive thing I saw in Steve was his work ethic,” reports Ricardo Cedillo. Steve joined Cedillo’s law firm as a first-year law student clerk and worked at the firm throughout law school until he joined as an associate after graduation. Cedillo adds, “It wasn’t just a big number of in-person hours. Steve produced exceptional work product. He pays close attention to detail but also has the right instinct to distinguish what is important and what is noise in a case. Polishing innate skills is much easier than teaching them from scratch, so it was easy to teach and trust Steve as a colleague.”

Aged 10, a family trip to the Canary Islands

MacArthur Band mates hoist drummer, Steve Chiscano, after a win

Chiscano‘s college headshot

Dr. Alfonso “Chico” Chiscano

Dr. Alfonso “Chico” Chiscano was celebrated not only for being a renowned heart surgeon, but also for serving as a cultural ambassador for San Antonio. In his lifetime, he performed more than 6,000 heart surgeries and was greeted routinely by strangers thanking him for saving a loved one. He was a devoted teacher and a Professor at the University of Texas Health Science Center at San Antonio. Dr. Chiscano was part of San Antonio’s Tricentennial Commission and instrumental in hosting King Felipe VI and Queen Letizia of Spain at the festivities. He was a team delegate for securing the UNESCO World Heritage designation for the San Antonio Missions and a leader in the San Fernando Cathedral restoration. Leadership was a family business, and Mary Alice was always by his side. When Dr. Chiscano passed away in 2019, social and print media were filled with condolence messages from around the world, and at his funeral Mass, San Antonio civic leaders were shoulderto-shoulder. While Steve did not follow his father’s footsteps into a medical career, he has continued the family legacy of honoring and strengthening the ties between Spain and San Antonio. In 2020, Steve was appointed Honorary Consul of Spain in San Antonio. In that role, Steve provides diplomatic and consular services to Spanish citizens living and/or traveling in the United States, and more specifically in San Antonio and the surrounding counties.

Dr. Chiscano photographed at San Fernando Cathedral’s La Virgen de Candelaria, a gift from the Canary Island government.

Dr. Chiscano with Steve and Steve’s children at the ribbon cutting of the Founder Monument installed on the grounds of the Bexar County Courthouse.

Steve confesses, “I was serious about law school and being with people who were all focused on the same thing.” Steve built his law firm experience by working full-time in the summers and throughout his 2L and 3L years. He had a 3L first-semester internship at the Supreme Court of Texas with Justice John Cornyn. He worked Monday through Thursday in Austin and drove back to San Antonio to work at the Davis Cedillo Mendoza law firm Friday, Saturday, and Sunday. His law partner and St. Mary’s classmate, David Angulo, remembers, “We were both working with Cedillo and studying for the bar. We would report to work at 4 a.m. so we could work a full eight hours before we left at noon for our bar review course. It was eat, sleep, work, study, repeat, that entire summer.”

Practice Humility and Kindness

While the years of law school and launching a legal career could be grueling, Steve says, “I am energized by work. I learned from my mentors and former bosses to find something you’re good at—that helps somebody—and surround yourself with people you enjoy working with. The rest will come.” This mentality has served Steve and his colleagues well. His current business partners Dave Angulo, Henry Gonzalez, and Richard Kasson are similarly wired, and Angulo and Gonzalez also

worked at the Davis Cedillo Mendoza firm before the four founded their firm Gonzalez Chiscano Angulo and Kasson (“GCAK”).

GCAK’s newest associate, Nadeen Abou-Hossa, joined the firm in late 2022, after working as a staff attorney with the Fourth Court of Appeals. “Steve is a natural mentor. I think a lot of his expectations derive from how he was trained by generous bosses. He doesn’t give me time to second guess myself. He trusts my ability.” Nadeen had her first trial just a few months after joining the firm. “I am treated as a valued colleague. My law school friends are often surprised by the complex legal work I get to handle as a first-year litigator.”

Steve’s office is filled with files, and the walls are covered with tenyear-old crayon drawings from his now-teenage daughter beside highend, framed art pieces. Displayed on top of the bookcases are thick leather-bound binders with gold lettering. When asked, he shares that each binder is a memento that represents a big case. What Steve does not say is that one binder represents a $600-million judgment; another represents a settlement exceeding $33 million; and several others are take-nothing judgments of multimillion and billion-dollar claims. His practice is high-stakes commercial litigation, and the risks to his clients are potentially life-changing.

Cedillo remembers, “Steve is always about the client. He always made my life easier. He doesn’t have it in him to say he is too busy or that he can’t do it.” Cedillo recalls it was a blow when Steve left to start his own firm. He admits that while he was unhappy to see Steve and Gonzalez, Angulo, and Kasson go, he understood their desire to build something of their own. “Today, we work together sometimes, and we are opposing counsel sometimes. Either way, it is a good day of work when I get to work with Steve.”

When Steve and his partners founded GCAK, Steve carried with him not only excellent legal skills, but also important life lessons from his time working with Cedillo. “We always said, ‘family first,’ and if your only motivation to practice law is to make a gazillion dollars, more power to you, but I don’t know if you are going to be happy,” Cedillo predicts. “Law is a service profession, and you look out for and serve your clients. Hours and billing will take care of themselves.”

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The GCAK lawyers have maintained the importance of their lives beyond the practice of law. Angulo shares, “Our attorneys do whatever we need to do to get the work done. We all genuinely enjoy doing legal work and solving complex problems, but our families are our priority. We go to school events. We go on vacations.” He shares that “it makes a difference when you trust your colleagues,” and that he does not view the GCAK “workplace or workload as a grind.” Abou-Hossa agrees, “It is a semi-predictable cycle. When it is busy, or we are in trial, I am hyper-focused. But I see my family and friends, and I schedule time away. I don’t have to pretend to be busy billing to impress my boss. My work-life balance is pretty good.” Steve embodies these values by placing paramount importance on his own family. “Steve is a great business partner, but first, he is a great dad,” says Henry B. Gonzalez, IV. “He has great parent role models, and that work ethic, decency, and kindheartedness is part of everything Steve does.”

Steve has three children, Niko (19), Christian (15), and Alexandra a/k/a Birdie (13). His free time is spent shuttling the youngest to various activities and driving his clan to UT-Austin football games (to please himself) and to College Station for A&M football games (to please Niko). The kids are

The partners of GCAK, Henry B. Gonzalez, III, Steve Chiscano, David Angulo, and Richard Kasson.

High School Classmate Jason Speights

Local attorney and MacArthur High School classmate, Jason Speights, recalls that his friendship with Steve has not changed much since high school. “Steve had layers of friends and was flexible in moving between groups. He was nice to, and well-liked by, everyone.” Steve played snare drum in the marching band drumline. He was also a top student academically and served in student government. Their shared ‘80s high school experience was pretty tame. Jason recalls a McArthur powder puff game with girls sporting shoulder pads to play flag football and boys in cheer skirts doing flips off a mini trampoline as the height of subversive teen behavior. “Steve and I were cheer squad for a day. Steve had been a gymnast, so he put on a real show for the crowd.” Despite Speights’ attending college at A&M and law school at the University of Houston, the friends remained close.

Speights eventually returned to live in San Antonio a few years after law school graduation. He recalls, “Steve’s dad rented out the Buckhorn Saloon for Steve’s 30th birthday party. There were a lot of St. Mary’s law school friends, and I didn’t know them. Most guests were with dates, and there were Steve and I at the front, both single and forlorn. The band starts up, but no one is dancing. Next thing I know, I’m meeting Sister Grace for the first time, and she drags me out on the dance floor. There is an awkward photo somewhere of me and Sister Grace, she’s a good dancer, and I’m just an accessory.” Steve was eager to introduce Jason to a classmate and the first thing she smirks to him is, “Oh, you’re the guy who ‘danced’ with Sister Grace.” That classmate, Laura Crandall, eventually became Jason’s wife, and he recalls, “It was a pretty memorable night for me in a lot of ways.” Steve continues to influence future Speights generations as godfather to Jason and Laura’s youngest daughter.

Dr. Chiscano rented a longhorn for Steve’s birthday.

Awkward photo of Speights boogying with Sister Grace at Steve’s 30th birthday bash.

graduates of many family road trips, but for this year’s adventure, Birdie asked that they fly instead, to preserve more time to explore Montana’s Glacier National Park and Yellowstone. “The kids and I have such great memories of these long, ‘stop whenever you want’ road trips, but we are probably migrating toward ‘airfare required’ now,” Steve confesses nostalgically.

Give Back in Service to Others

St. Mary’s University School of Law Campus Minister Sister Grace Walle shares that she was just starting her job at St. Mary’s when she was introduced to a group of students over lunch. “Law students were unfamiliar territory. My impression was that these students were bright and enthusiastic. And this one young redhead named Steve was energetic and had a delightful sense of humor,” she recalls.

Sister Grace explained that those were the days before pro bono clinics, so student community service projects were not legal service clinics. The service projects were hands-on, get dirty type things. “Steve and his section mates always volunteered.” She recalls that the biggest project was building a garden for Catholic workers, and that the students rented a tiller, built a fence, and planted the garden, all in a day.

One law student section had become very fond of their professor, Charles Cantú, and approached Sister Grace asking how they could honor him. They settled on launching an unrestricted Cantú Fund for the Future that Sister Grace could administer for community service projects. The fund remains active to this day and, at the height of need, funded stipends for seventy-two student coordinators in eight Texas cities to provide services through various legal services nonprofits. Professor

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Left to right: 4th Court of Appeals Justice Beth Watkins, SABA Executive Director June Moynihan, Steve Chiscano, and 4th Court of Appeals Justice Lori Valenzuela selfie

Celebrating Ricardo Cedillo, recipient of the Outstanding Trial Lawyer Award at the 2023 Texas Bar Foundation Gala

Left to right: Niko, Steve, Christian, and Birdie photographed in the Spain Room at The Argyle

Cantú was very touched by the gesture. “That was a special class. Most professors will tell you that they will really connect with one or two students, each year. In 1997, I made a connection with an entire section,” Cantú added. Although he has lots of memorabilia, the photo of him with Section Two is framed and hangs in his office.

Sister Grace recalls that the students planned a big gala fundraiser to launch the fund. “It was at that point that I learned that these humble law students belonged to some VIP San Antonio families. They used their connections to sell tickets and even got some free advertising in the newspaper’s society page.” As Professor Cantú fondly remembers and Jeanne Jakle wrote in her Express News column of upcoming events, it was the “hottest ticket in town.” Sister Grace concludes, “It did end up being a great party and successful fundraiser. If the columnist only knew it was a group of students, led by a nun, honoring a senior professor!”

Sister Grace reveals that her friendship with Steve is special because she feels like they came up together, marking their first year at St. Mary’s together. Their friendship endures, and she happily follows his career and celebrates his professional accomplishments and tenures in leadership. “Serving as president of the San Antonio Bar Association is a natural fit for Steve. He’s a gifted leader, and SABA will benefit from his servant heart.” The apple does not fall far from the tree. “Steve learned from his family and mentors to do good work, to practice humility and kindness, and to give back in service. It’s hard to go wrong with that combination.”

Christian representing Alamo Heights, Birdie in her St. Mary’s Hall sweatshirt, and Steve and Niko wearing Texas rivalry

Steve showing off his catch Family time in Yellowstone

SABA Opens Up New Member Center

By Sofia Garcia

SABA’s highly anticipated Member Center formally opened its doors with a Ribbon Cutting Ceremony on August 24, 2023, with Bexar County Judge Peter Sakai and SABA members present to witness the milestone achievement.

Seven long years in the making, the Member Center opening marks an exciting chapter for SABA and acknowledges the many steps it took to finally offer members this new benefit.

2016

After a six-month waiting period, during which an asbestos abatement was required, building was back on track!

First Member Center Committee Meeting

2023 RIBBON CUTTING & ANNUAL MEETING

Bexar County Judge Peter Sakai, Bexar County Clerk Lucy Adame-Clark, District Clerk Gloria A. Martinez, Justice Beth Watkins, Steve Chiscano, Donna K. McElroy, Kacy Cigarroa, Lawrence Morales, and Melissa Morales Fletcher participating in the ribbon cutting

Annual Member Meeting attendees applaud Keynote Speaker, Michael S. Ariens.

Keynote Speaker, Michael S. Ariens, speaking to members about his new book, The Lawyers Conscience: A History of American Lawyer Ethics

SABA Members admiring San Antonio’s Justice

SABA LIFETIME ACHIEVEMENT AWARD – JOE FRAZIER BROWN SR. AWARD OF EXCELLENCE | SARA DYSART

SABF OUTSTANDING LAWYER IN COMMUNITY SERVICE – CAROLYN THURMOND AWARD | WILLIAM “BILL” CROW

SABF PEACEMAKER AWARD | EDUARDO JUAREZ

SAYLA OUTSTANDING YOUNG LAWYER AWARD | COLLANNE BRAMBLETT WEST

SAYLA OUTSTANDING MENTOR AWARD | JUSTICE BETH WATKINS

SAYLA LIBERTY BELL AWARD | ANABEL MARTINEZ

INCOMING PRESIDENT | STEVE CHISCANO

OUTGOING PRESIDENT | DONNA MCELROY

Earl Warren was born on March 19, 1891, in Los Angeles, California.1 During high school, he spent more time running track than studying. After high school, he graduated from the University of California at Berkeley (“Cal”) and then went on to graduate from Cal’s law school. Warren made friends easily and dabbled in local politics. When the United States entered World War I, he enlisted in the Army and earned a commission.2

After the war, Warren returned to California and worked as deputy city attorney for Oakland,3 and later as deputy district attorney for Alameda County.4 He met his future wife, Nina Myers, at the Piedmont Baths in Oakland.5 In 1938, he ran for Attorney General of California and easily won the election. On December 7, 1941, when the Japanese bombed Pearl Harbor, he was in Oakland. He told Californians to prepare for a Japanese attack on the West Coast.

Governor Warren

By 1942, Warren had become California’s most prominent Republican. As such, he had a good chance of becoming governor in the next election, so he ran as a Republican against the incumbent, Democrat Culbert Olson, and won.6 The national press soon discovered Governor Warren and his attractive family. He appeared on the cover of Time magazine in January 1944, when the magazine began printing in California.7 The accompanying article suggested that he was destined for national office. However, President Franklin

CHIEF JUSTICE

Earl Warren

By Harry Munsinger

Delano Roosevelt was running for a fourth term in 1944, and Warren did not want to run against a popular president, so he avoided joining Thomas Dewey’s ticket as vice president. Although, in 1948, Warren attended the Republican convention—hoping for a deadlock that would make him the compromise candidate for president—Dewey received so many votes on the first ballot that it was clear he would be the Republican nominee. Warren campaigned vigorously for Dewey and attracted large crowds, but President Harry S. Truman won a second term.

Loyalty Oath

Soon after the war, many Americans felt threatened by communism at home and abroad. California state Senator Jack Tenney wanted Cal’s faculty and staff to swear allegiance to the United States. University President Sproul agreed to the demand and required Cal employees, as a condition of their employment, to sign an oath rejecting communism.8 Faculty members felt the oath infringed on academic freedom and threatened tenure, so they refused to sign. Two members of the board of regents asked Sproul to involve Governor Warren in the controversy. Warren attended a board of regents’ meeting in January 1950 and stated that requiring university faculty and staff to sign a loyalty oath was inconsistent with their civil rights. After a heated debate over the oath, the vote among the board of regents was tied, meaning the faculty who refused to take the oath would lose their jobs. The problem resolved when a regent resigned, and Warren

could appoint a new member who voted to reject the loyalty oath.

Warren was reelected as Governor of California by promising to be nonpartisan and arguing that he had added 20,000 new classrooms and teachers, improved health care, created over a million new jobs, built new roads, and supported the construction of more than 600 new homes in California.9 He attended the 1952 Republican National Convention in Chicago with the hope of gaining the nomination for president. However, Dwight D. Eisenhower won the nomination and the election. Eisenhower viewed Warren as a threat in the next election, so Eisenhower offered him a cabinet post, with the confidential understanding that he would nominate Warren to the Supreme Court of the United States when a vacancy occurred. Warren accepted the deal. Chief Justice Fred Vinson died soon after. True to his word, Eisenhower named Warren interim Chief Justice of the Supreme Court and removed Warren from politics.10

Chief Justice Earl Warren

Warren joined four of the brightest and most assertive Justices who ever served on the Supreme Court: William O. Douglas, Hugo L. Black, Robert H. Jackson, and Felix Frankfurter. The main division within the Court was between judicial activists and those advocating judicial restraint. Jackson and Frankfurter supported judicial restraint, while Douglas and Black believed the Court should break new legal ground, unrestrained by precedent

All photos: Public Domain

or the plain text of the Constitution. Shortly after Warren became Chief Justice, the Court considered one of the most important civil rights cases in a century—a dispute concerning racial segregation in American schools.

Brown v. Board of Education of Topeka11

In Plessy v. Ferguson, the Supreme Court had upheld the constitutionality of “separate but equal” facilities. Thurgood Marshall, Charles Houston, and the NAACP began looking for cases to bring before the Supreme Court to show that “separate but equal” schooling for Black children harmed Black students. They found appropriate cases in Kansas, South Carolina, Virginia, Delaware, and the District of Columbia and combined the five cases into Brown v. Board of Education of Topeka. The issue was whether schools could deny admission of Black children to white schools based on race alone. Lower federal courts had followed Supreme Court precedent in Plessy v. Ferguson and ruled that racially segregated public schools were constitutional as long as they were “equal.”

When the case reached the Supreme Court, Warren opened deliberations by saying it was time to face the issue of racial segregation in public schools. He said that if the Court supported continued racial segregation of America’s schools, it was embracing white racial superiority. Justice Black would normally have spoken next, but he was absent dealing with a family matter. Black sent word that he would vote to overturn racial segregation in public schools. Justice Stanley Reed came next, saying that segregation was based on racial differences, not inferiority, and that he would follow precedent. Frankfurter followed Reed and argued that racial segregation was constitutional as long as school facilities were equal. Douglas said he would vote for the end of racial segregation. Jackson agreed that ending racial segregation was the right thing to do. The junior Justices Harold Burton, Tom C. Clark, and Sherman Minton voted to end racial segregation in public schools.

Warren had a seven-to-two majority in favor of desegregating public schools, but he wanted a unanimous ruling if possible, so he postponed a formal vote. He had two reasons for doing so. First, the Senate had not yet confirmed him, and if he voted to end racial segregation before confirmation, Southern Senators would likely reject his nomination. Second, he wanted to persuade all nine Justices to end racial segregation because he felt such an important decision needed unanimous support to stand against Southern opposition.

Eisenhower wanted to avoid government intervention in race relations, but Warren ignored the president on the issue. After the Senate confirmed Warren, he set Brown v. Board of Education of Topeka for a formal vote. The vote was unanimous.

Colleagues urged Warren to write the opinion, feeling it would carry more authority if drafted by the Chief Justice. Warren agreed and began his opinion with a factual summary of the five cases. Then he discussed the history of the Fourteenth Amendment and explained that “separate but equal” was inconsistent

with the intent of the amendment. Warren pointed out that widespread free public education was not available when the “separate but equal” concept originated. He concluded that separate educational facilities for Black children violated the Equal Protection Clause of the Fourteenth Amendment and were, therefore, unconstitutional.

Warren wrote that segregated educational facilities based on race created a feeling of inferiority among Black students that harmed intellectual and personal growth, but the fight against racial segregation in public schools was

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far from over. Southern opponents argued that the Court’s decision was based on social science rather than legal precedent and was, therefore, unlawful. Eisenhower said the Supreme Court had spoken, and he was bound to uphold its decisions—hardly a ringing endorsement.

Southern Opposition

Southern legislators, governors, and local authorities tried to delay or modify the Brown decision to avoid integrating their schools. To counter the resistance, the Supreme Court issued a second decision ordering

integration “with all deliberate speed.” Federal district judges faced hostile opposition when demanding compliance with the Brown decision, and they had difficulty enforcing their rulings in Southern states. Warren became internationally famous because of the Brown decision, and his ambition to run for president grew, especially when Eisenhower suggested he might not seek a second term.

On July 17, 1957, at a news briefing, Eisenhower said, “I can’t imagine any set of circumstances that would ever induce me to send federal troops into any area to enforce the orders of a federal court.” Arkansas Governor Orval Faubus decided to test Eisenhower’s resolve. He asked the Arkansas legislature to pass laws blocking integration of Arkansas schools, arguing that the admission of nine Black students into Little Rock’s Central High School would threaten state safety. He mobilized the Arkansas National Guard to turn the Black students away when they tried to enter the school. Eisenhower did not care much about racial segregation, but he could not let a state governor defy him and the Supreme Court. He had to respond. He tried to negotiate a solution, but Governor Faubus refused to cooperate, withdrew the national guard, and turned the city over to an angry mob that blocked the Black children from entering Little Rock High School.

Official portrait, 1953

Earl Warren presents the Commission’s report to President Johnson on September 24, 1964.

President Kennedy, Jacqueline Kennedy, Chief Justice Earl Warren, and Nina Elisabeth Meyers (Warren’s wife), November 1963

Chief Justice Warren swears in President Nixon on January 20, 1969.

Warren as Governor of California The Warren Court (1953–1954)

Governor Warren meets a young “gold miner” as part of the California centennial celebrations, 1948–1950

Warren as a U.S. Army officer in 1918

Grave at Arlington National Cemetery

Eisenhower had no choice but to send federal troops to intervene; so he sent 1,000 paratroopers from the 101st Airborne Division to the city to restore order. The mob backed down in the face of armed federal troops. Federal paratroopers escorted the nine Black students into classrooms and guarded them while they studied. Governor Faubus, however, did not stop resisting desegregation.

Cooper v. Aaron12

Instead, Arkansas filed suit in the Eastern District of Arkansas and asked the federal court to suspend the plan to integrate the Little Rock school system. When the case reached the Supreme Court, all nine Justices agreed that the Supremacy Clause of Article VI of the Constitution required Arkansas officials to comply with federal court orders. The Court asserted its power in Cooper but lost the support of Congress and much of the nation as a result. A clear sign that public support for Warren’s Court was fading occurred in 1958, when Learned Hand delivered the Oliver Wendell Holmes Lecture at Harvard University. Hand expressed concern about Supreme Court activism, saying he did not believe nine “Platonic Guardians” on the Supreme Court should rule America.

Hand’s criticism of the Warren Court encouraged Southern Senators to introduce a bill limiting the power of the Supreme Court. When the bill came up for a vote, Learned Hand refused to testify, and Majority Leader Lyndon Johnson was able to defeat the bill. Black activists pushed desegregation by initiating sit-ins at lunch counters throughout the South to protest racial segregation. The 1960 Kennedy-Nixon election triggered a realignment of Black voters within the Democratic party, and Black voters helped Kennedy defeat Nixon by a narrow margin. Unlike Eisenhower, President Kennedy supported federal enforcement of civil rights in America. As the Kennedy administration consistently supported civil rights in America, conservatives launched a publicity campaign to impeach Warren.

Impeach Warren

In 1961, the John Birch Society initiated a campaign to drive Warren from the Court. The campaign included nationwide billboards calling for Warren’s impeachment. There was little public support for impeaching Warren outside the South, but the John Birch Society was the public face of opposition directed against the Supreme Court and Chief Justice Warren. Eisenhower had been passive in his support of Supreme Court decisions, but

Kennedy actively enforced Court rulings concerning desegregation, which increased resentment against Warren. Meanwhile, the Supreme Court began to expand criminal defendants’ civil rights.

Gideon v. Wainwright13

Gideon was charged with felony breaking and entering and appeared in court without an attorney because he was too poor to afford one. He asked the Florida court to appoint

an attorney, but the judge refused because the right to a public defender only existed for capital cases in Florida. Gideon was found guilty and sentenced to five years in prison. Civil rights attorneys filed a habeas corpus petition in the Florida Supreme Court, arguing that the refusal to appoint an attorney violated Gideon’s right to counsel. The Florida Supreme Court disagreed, so Gideon’s attorneys appealed to the United States Supreme Court. In a unanimous opinion,

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Justice Black held that the United States Constitution requires state courts to appoint an attorney for criminal defendants if they could not afford one. Gideon was re-tried with representation and acquitted. Around this time, a lone shooter shot President Kennedy in Dallas.

The Warren Commission

On November 22, 1963, the Justices were discussing whether the right to vote fell within the Equal Protection Clause of the Fourteenth Amendment, when they learned that President Kennedy had been assassinated. President Lyndon Johnson asked Warren to form a Commission to investigate the assassination and issue a report. The Warren Commission hired a special counsel, reviewed the FBI investigation, and initiated an independent review of the facts. The FBI learned about the commission’s plans because Gerald Ford, who was a member of Warren’s Commission, leaked them to J. Edgar Hoover.

The Warren Commission investigated several rumors, including one that shooter Lee Harvey Oswald was an undercover agent for the FBI, and that more than one shooter was involved in the shooting. The Commission’s

first witness was Marina Oswald, the shooter’s widow. She identified the rifle as belonging to her husband and described her husband’s tendency toward violence and his alienation from society. She said she believed her husband had shot Kennedy. All testimony occurred behind closed doors but was subjected to intense scrutiny by the press. Another witness, Arthur Rowland, testified that he stood below the Texas Book Depository on the day of the shooting and saw a man in a window holding a gun. Although reporting what he saw might have saved Kennedy’s life, he did not report the sighting to the police.

After extensive investigation, the Warren Commission concluded that Oswald acted alone. In response to pressure from commission members Richard Russell and Gerald Ford, the Commission’s report included a finding that there was no evidence that Oswald or Jack Ruby (who murdered Oswald two days after Kennedy’s assassination) was part of a domestic or foreign conspiracy to assassinate President Kennedy, leaving open the possibility that new evidence might change the conclusion. The Commission delivered its report to President Johnson on September 24, 1964. Initial public reaction was positive. The

FBI never accepted the theory that a single bullet had killed Kennedy and wounded Texas Governor John Connally. Attitudes toward the Warren Report became more skeptical over time, although today the Commission’s findings are generally accepted as accurate. Despite Kennedy’s assassination, the Warren Court continued to decide civil rights cases, turning its attention to voting districts in Alabama.

Reynolds v. Sims14

Sims filed a case alleging that Alabama had created large population differences among various electoral districts to disenfranchise Black voters. His attorneys showed that Jefferson County, which contained a large minority population, contained forty-one times as many voters as other districts in the state. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment requires roughly equal populations in each voting district so that all votes count. In an 8-1 decision, Warren wrote that the right to representation is the foundation of America’s political system and that states must apportion voting districts in an “honest and good faith” way, to create districts that are nearly equal in population. Reynolds triggered a battle over the right of all citizens to have their vote counted.

New York Times Company v. Sullivan

15

The next important case before the Warren Court involved the definition of “libel of public officials.” The New York Times published an ad asking for contributions to pay for the legal defense of Martin Luther King, Jr. City of Birmingham Public Safety Commissioner Sullivan asked the Times for a formal retraction, contending that the ad contained factual errors and unfairly criticized his subordinates. The Times refused to retract the ad, and Sullivan filed suit in Alabama state court. An Alabama jury awarded Sullivan $500,000 in damages; the Alabama Supreme Court affirmed the verdict. The Times appealed the decision to the United States Supreme Court. In a unanimous ruling, the Court reasoned that when the statement at issue involves a public figure, a plaintiff must show that the defendant made the statement knowing it was false or with reckless disregard for the statement’s falsity. That is, the defendant must have published the information with “actual malice,” a nearly impossible standard to meet in proving libel against a public figure.

Miranda v. Arizona16

Miranda considered four cases involving defendants who confessed during police interrogation without being advised of their right to remain silent. In a 5-4 decision, with Warren writing for the majority, the Supreme Court ruled that the Fifth Amendment requires law enforcement officials to advise suspects of the right to remain silent and to have an attorney present during interrogation when in police custody. Warren wrote that police must advise a suspect that if the suspect cannot afford an attorney, an attorney would be appointed to represent him or her. Finally, Warren held that any evidence obtained from an interrogation without this warning is inadmissible at trial. The dissenting Justices objected because no legal precedent required police officers to inform a suspect of these rights while in custody.

Retirement

Warren decided to retire from the Court so that President Johnson could nominate a liberal Justice before Johnson left office. The plan failed, however, and President Nixon nominated Warren’s replacement. Warren wrote a memoir of his life in a short essay entitled A Republic, If You Can Keep It. He

died on July 9, 1974, only hours after the Supreme Court forced President Nixon to turn over a secret recording discussing the Watergate burglary, which eventually led to Nixon’s resignation as President.

Harry Munsinger is the author of Texas Divorce Guide, The History of Marriage and Divorce, History of Inheritance Law, History of Medical Miracles, and Portraits of Leadership He has served on the San Antonio Bar Association’s publications committee for many years. During that time, he has been a frequent contributor to the San Antonio Lawyer magazine. Although now retired from law practice, Harry continues to contribute to this magazine!

ENDNOTES

1Earl Warren, Chief Justice of United States, Britannica.com, available at https://www.britannica.com/ biography/Earl-Warren

7Time magazine cover: Earl Warren-Jan.31, 1944, available at https://www.pinterest.com/ pin/529735974901025437/

8The loyalty oath controversy, university of California 1949-1951, available at https://www.lib.berkeley. edu/uchistory/archives_exhibits/loyaltyoath/index. html

9Earl Warren, History.com, Editors, available at https://www.history.com/topics/us-politics/earlwarren

10Id

11Brown v. Bd. of Educ., 347 U.S. 483 (1954).

12Cooper v. Aaron, 358 U.S. 1 (1958).

13Gideon v. Wainwright, 372 U.S. 335 (1963).

14Reynolds v. Sims, 377 U.S. 533 (1964).

15New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

16Miranda v. Arizona, 384 U.S. 436 (1966).

A Limitation Under the Texas Structured Settlement Protection Act

By Justice Irene Rios

In a case of first impression, we recently determined whether future payments under a structured settlement workers’ compensation claim made pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) could subsequently be transferred to another party without violating the Texas Structured Settlement Protection Act (“SSPA”). See In re Great Plains Mgmt. Corp., 665 S.W.3d 717 (Tex. App.—San Antonio 2022, pet. filed).

After Cynara Dolphy-Budd sustained a work-related injury subject to the LHWCA, Dolphy-Budd’s employer and its workers’ compensation carrier negotiated a structured settlement. Under the terms of the settlement, Dolphy-Budd was paid a lump sum payment and obtained the right to receive another lump sum payment several years later. The workers’ compensation carrier entered into a reinsurance agreement with American General Life Insurance Company (“American General”) wherein American General would pay Dolphy-Budd a guaranteed lump sum payment of $146,094 in 2025 In 2020, Dolphy-Budd entered into a Structured Settlement Annuity Sale and Assignment Agreement (“transfer agreement”) purporting to transfer to Great Plains Management Corporation (“Great Plains”) the entirety of her lump sum payment in exchange for an immediate payment in the amount of $82,776. Great Plains sought and obtained the trial court’s approval of the transfer agreement. See Tex. Civ. Prac. & Rem. Code Ann. §§ 141.004, 141.006(a).

The issue on appeal was whether—under the SSPA—the trial court properly approved the transfer agreement between Great Plains and Dolphy-Budd. Before approving the transfer agreement, the SSPA required the trial court to make a finding that the transfer agreement did not contravene any applicable statute or an order of any court or other governmental authority. See id. § 141.004. Section 916 of the LHWCA— titled “Assignment and exemption from claims of creditors”—provides:

No assignment, release, or commutation of compensation or benefits due or payable under this chapter, except as provided by this chapter, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors . . . .

33 U.S.C. § 916. The parties disputed on appeal whether Section 916 applied to the transfer agreement and whether the 2025 lump sum payment was “due or payable” under the LHWCA.

American General opposed the transfer agreement, contending the transfer contravenes Section 916’s prohibition against the assignment of future payments arising from claims settled under the LHWCA. Relying

on the title of the provision, Great Plains argued Section 916 does not apply to the transfer agreement because the statute only prohibited assignments to creditors. Noting the title and text of the statute both include the conjunction “and,” we concluded the statute addresses two independent prohibitions: (1) the prohibition against assignment, release or commutation of compensation or benefits due or payable under the LHWCA, except as provided by the LHWCA; and (2) the prohibition against creditor claims of compensation and benefits under the LHWCA. See Great Plains, 665 S.W.3d at 725.

Citing In re Sloma, 43 F.3d 637 (11th Cir. 1995), Great Plains also argued the 2025 lump sum payment was no longer considered due or payable under the LHWCA because American General—a third party outside the settlement between Dolphy-Budd and her employer and its carrier—became the party liable to pay Dolphy-Budd the 2025 lump sum payment when DolphyBudd’s employer’s carrier entered into the reinsurance agreement with American General. The divided Sloma court held that once Sloma settled his claims with his employer and its carrier— and the carrier in turn paid Sloma the initial lump sum payment and purchased an annuity from a third party to make annuity payments to Sloma—“[t]he payments received by Sloma under the annuity contract were not due and payable under the [LHWCA]; they were payments made to him by a third party . . . .” Id. at 640 (emphasis in original).

Relying on In re Dwyer, No. 149 WDA 2016, 2017 WL 384113 (Pa. Super. Ct. 2017), American General argued Section 916 prohibits any assignment where the employee still stands to be paid as compensation for her injury. Dwyer contains strikingly similar facts to Great Plains because it involved the Pennsylvania Structured Settlement Protection Act that also prohibits a trial court’s approval of the assignment of future payments if the assignment contravenes the LHWCA. Using the common definitions of “due” and “payable,” the Dwyer court held “the LHWCA prohibits the assignment of any compensation of benefits owed or being paid pursuant to a claim under the LHWCA.” Id. at *4. The Dwyer court continued:

Section 916 places no limitation on the type or method of compensation, whether by annuity or structured settlement payment, that cannot be assigned. Moreover, the plain language of Section 916 does not suggest that the anti-assignment clause only applies to future payments. In fact, the plain language of Section 916 applies to any benefits or compensation, either being paid or owed in the future.

Id. It added that Dwyer’s rights to receive future payments are “due or payable” and “derive from the settlement of claims arising out of the LHWCA.” Id. at *5. The court asserted the Sloma court’s interpretation “would effectively render the LHWCA inapplicable” under these circumstances.

Agreeing with the Dwyer court’s sound reasoning that “structured settlement payment rights are a ‘due or payable’ award under the LHWCA, and cannot be assigned pursuant to Section 916[,]” we rejected the Sloma court’s interpretation that a subsequent transaction regarding the form of, or the party to pay, the compensation or benefit arising from the LHWCA detaches Section 916’s anti-assignment clause from the underlying compensation or benefit. Id. Accordingly, we held Dolphy-Budd’s transfer agreement contravened the LHWCA and was improperly approved by the trial court. See Great Plains, 665 S.W.3d at 727.

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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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.

Recoupment of Overpaid Royalties

DDR Weinert, LTD v. Ovintiv USA, Inc., No. SA-22-CV-00558-XR (Rodriguez, X., June 16, 2023).

Oil and gas lessee was entitled to recoup royalty overpayments from current property owner even though lessee made the overpayments to former property owner. Current property owner sued lessee for breach of contract when the lessee withheld royalties in order to recoup overpayments made to previous owners. The court granted summary judgment for lessee and dismissed the case. The court acknowledged, and the parties agreed, that recoupment is a self-help mechanism commonly used in the industry and available to payors, and allows a lessee to withhold royalties to satisfy its overpayments. When a lessee overpays, the landowner’s property interests become encumbered and indebted by the lessee’s recoupment right. Because the new owner bought the property subject to “all valid encumbrances” of any kind and subject to “any existing indebtedness” under the property deeds, the court found that the new property owner assumed the debt of the prior owners. The court found lessee rightfully withheld payments from future royalties to the new lessor to satisfy the outstanding debt.

Premises Liability; Natural Accumulation Doctrine; Negligent Undertaking

Barron v. United States, No. SA-18-CV01184-XR (Rodriguez, X., May 19, 2023).

The court ruled in favor of the United States Government’s motion for summary judgment and dismissed the plaintiffs’ negligence claims. One plaintiff was a civilian who

drowned after flooding from heavy rain swept his car away as he drove across a low water crossing on a road controlled by the United States Air Force. That plaintiff’s parents alleged negligence against the Government for keeping the road open. The court ruled that the claims were actually premises liability claims; leaving the gate open and unguarded was not affirmative, contemporaneous conduct required for a negligence claim, but was rather a physical condition left on the property consistent with a premises liability claim. As a premises liability claim, it was barred by the natural accumulation doctrine, which bars premises liability claims caused by naturally occurring conditions like rain. So the premises liability claim failed as a matter of law. The court found that even if the plaintiffs amended their complaint to allege a negligent undertaking claim, that claim would be futile. The court rejected the Government’s argument that such a claim was inconsistent with a theory of premises liability; because the Government was not liable as a landowner, it was possible to impose a duty on the Government for negligent undertaking. And the court agreed with the plaintiffs that the Government undertook a duty to monitor low water crossings and to control base access to protect base occupants from flooding, that the deceased likely relied on the Government’s actions, and that the base personnel who inspected the roads did not exercise reasonable care in performing their duties. But the gate-locking regulation the plaintiffs pointed to—a Camp Bullis regulation stating that “[a] ll Range/Control Area/Impact Area gates will either be locked or guarded by the unit using the area”—did not provide evidence of either the duty that the Government assumed or the proper standard of care. The court dismissed the plaintiffs’ claims with prejudice.

Rule 12 Motion to Dismiss; Negligence; Premises Liability

Villareal v. Marriott Hotel Services, Inc., No. SA-22-CV-1008-JKP-ESC (Pulliam, J., June 28, 2023).

On defendant’s FRCP 12(b)(6) motion, the court dismissed the plaintiff’s negligence claims but allowed his premises liability claim to proceed. The plaintiff’s complaint alleged a slip and fall on pavement as he exited his vehicle on the defendant’s property. The complaint did not identify the condition or provide any other details. The defendant moved to dismiss the premises liability claim for failure to allege facts showing that the defendant had the requisite knowledge of the alleged dangerous condition. The court denied the motion. A court may use its judicial experience and common sense to permit some leniency when a party pleads matters within the knowledge of the defendant. Expressly pleading “on information and belief” is not necessary. Missing details regarding the condition that posed an unreasonable risk of harm were unnecessary to state a claim. The plaintiff alleged the defendant allowed slippery conditions on its premises; all elements of premises liability were present by implication. The court granted the defendant’s motion to dismiss plaintiff’s negligence claim. The plaintiff made no specific allegation of any ongoing, contemporaneous activity that resulted in his injuries. A negligent activity claim requires some allegation of malfeasance based on affirmative, contemporaneous conduct. Nonfeasance may support a premises liability claim, but not a negligence claim. Although one claim was dismissed in this particular case, the court noted that in general, a party may pursue both claims as alternative theories at the pleading stage.

Spoliation; Gross Negligence; Expert Testimony

Manson v. B&S Trucking of Jackson, LLC, No. SA-21-CV-01181-XR (Rodriguez, X., May 1, 2023)

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A driver sued a commercial trucker following an 18-wheeler accident. The plaintiff’s counsel’s representation letter to the trucker demanded preservation of “any and all evidence” it may have “in regard[] to the incident in question.” The plaintiff argued failure to preserve driver log and pre-accident vehicle inspection reports and moved for spoliation sanctions and an adverse jury instruction under Fed. R. Civ. P. 37(e). The trucker’s statutory duty to retain records was not dispositive; rather, a duty is triggered when the trucker knew litigation was imminent. The plaintiff’s letter was overly broad and failed to state with sufficient detail what evidence was sought to be preserved. “But in 18-wheeler cases, driver logs are routinely sought in discovery and should have been preserved.” So driver logs fell within the scope of Rule 37(e), and the trucker failed to preserve them. But the plaintiff failed to show the logs were lost without the ability to be restored as required by Rule 37(e). Neither party had attempted to determine whether the logs still exist. Relief under Rule 37(e) was, therefore, premature. Any relief seeking an adverse jury instruction was improper because there had been no showing that the trucker acted with intent to deprive the plaintiff of the information. The court rejected the plaintiff’s argument that any time a party violates a regulatory document retention requirement there is a de facto intentional spoliation. The court granted judgment for the truck driver on the plaintiff’s claim of gross negligence because “Texas courts have repeatedly made clear that . . . failure to obey traffic laws, will not support a finding of gross negligence.” And the court granted judgment for the trucking company on the plaintiff’s “direct negligence” claims (negligent hiring or entrustment); such claims were barred because the company stipulated the truck driver was acting in the course and scope. When an employer stipulates to vicarious liability, “the employee’s competence and the employer’s own negligence in hiring, failing to properly train, or negligently supervising become irrelevant.” The court accordingly struck testimony by plaintiff’s “fleet safety expert” on the truck driver’s alleged negligent operation of the 18-wheeler and alleged violations of the Texas Transportation Code and Federal Motor Carrier Safety regulations, as such testimony was irrelevant. The court

sanctioned the plaintiff for repeated flouting of Rule 26 with regard to whether repeat expert, Dr. Stephen Earle, was a mere treating provider or a testifying expert.

Subject Matter Jurisdiction; Arbitration Award

Mathai v. Bexar County, No. SA-22-CV01355-XR, 2023 (Rodriguez, X., May 15, 2023)

Former lieutenant of the Bexar County Sherriff’s office claimed wrongful termination after attending the January 6, 2021, political rally in support of President Trump. The lieutenant appealed her termination though collective bargaining agreement (CBA) arbitration. The arbitrator denied the lieutenant’s appeal for reinstatement. Subsequently, the lieutenant filed a petition with the State Office of Administrative Hearings to correct the record to reflect an “Honorable Discharge.” The administrative law judge voided the dishonorable discharge. Thereafter, the lieutenant brought claims against the Bexar County Sheriff and Bexar County for violations of the First and Fourteenth Amendments and 42 U.S.C. § 1983 for termination based on free speech and association. The Sheriff and County moved to dismiss, claiming the lieutenant was precluded from relitigating issues already determined through arbitration. The lieutenant argued the arbitrator determined narrow issues not claimed in the present case and that, in any event, a § 1983 action is not barred by a previous arbitration award. The court held the CBA and prior arbitration did not deprive the court of jurisdiction and denied defendants’ motion. A CBA must “clearly and unmistakably” specify the claims the parties wish to resolve through arbitration. The Sheriff and County argued that the grievance process in place for discrimination based on political affiliation evidenced an intent to resolve such issues through arbitration. But because the CBA did not include an arbitration clause that explicitly referred to a § 1983 statutory claim (or any statutory right whatsoever), the court found no clear and unmistakable intent to exclusively arbitrate § 1983 or other statutory claims. The CBA did not waive the plaintiff’s right to bring a § 1983 claim in a federal judicial forum. The grievance process provided one avenue for the lieutenant to resolve a discrimination claim, not an exclusive avenue. The court had jurisdiction to hear the lieutenant’s § 1983 claim despite the arbitration award.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC. Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC. Jeffrie B. Lewis is Assistant General Counsel with Zachry Group.

“When

Joseph CASSEB

Don PHILBIN

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

Dan POZZA John BOYCE

Roberto RIOS

Roger BRESNAHAN Gary JAVORE Hon. Catherine STONE

Hon. Karen POZZA Kevin MICKITS

Krishna REDDY