www.elpasobar.com
October/November 2014
SPOTLIGHT ON AN EL PASO ATTORNEY
Alejandro Acosta, Jr.
By Clinton F. Cross
Page 14
Some Early History of Legal
Aid in El Paso, Texas
By Clinton F. Cross
Page 7
Las Siete Partidas
By N. Jessica Lujan
Page 12
October/November 2014
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u n i t edel paso .com
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October/November 2014
3
President’s Page
State Bar of Texas Awards
Award of Merit
Star of Achievement
Outstanding Partnership Award
Outstanding Newsletter
Publication Achievement Award
NABE LexisNexis Awards
Community & Education Outreach Award
-2007, 2010 & 2012
Excellence in Web Design – 2007
Excellence in Special Publications – 2008
Laura Enriquez, President
Myer Lipson, President-Elect
Christopher Antcliff, Vice President
Mark Dore, Treasurer
Jennifer Vandenbosch, Secretary
Randolph Grambling, Immediate Past
President
2014-2015 Board Members
Brock Benjamin
Ouisa Davis
Soraya Hanshew
Rene Ordonez
Jeff Ray
Melissa Baeza
Daniel Hernandez
Judge Miguel Torres
Felix Valenzuela
Sean White
Kristina Voorhies Legan
Aldo Lopez
David Mirazo
Janet Monteros
Philip Mullin
Ex-Officios
SBOT Director, District 17, EPYLA,
MABA, EPWBA, ABOTA, FBA, EPBF,
EPFLBA, EPPBA, EPALP
Executive Director
Nancy Gallego
Editorial Staff
Clinton Cross, Judge Maria SalasMendoza, Nancy L. Gallego
& Ballard C. Shapleigh
The El Paso Bar Journal is a bi-monthly publication of
the El Paso Bar Association. Articles, notices, suggestions
and/or comments should be sent to the attention of Nancy
Gallego. All submissions must be received by the Bar
office on or before the 10th day of the month preceding
publication. Calendar listings, classified ads, display
ads, and feature articles should not be considered an
endorsement of any service, product, program, seminar
or event. Please contact the Bar office for ad rates. Articles published in the Bar Journal do not necessarily
reflect the opinions of the El Paso Bar Association,
its Officers, or the Board of Directors. The El Paso
Bar Association does not endorse candidates for
political office. An article in the Bar Journal is not,
and should never be construed to be, an endorsement
of a person for political office.
There are many criminal cases filed in our city. Our
federal and state judges are working harder than any other
judges in Texas because of the number of arrests made on
the border.
Representing the accused is the most important job any
lawyer can have. In my opinion, it is the most difficult lawyer
job because juries generally do not believe that a person is
innocent until proven guilty. Jurors assume that if a person
is on trial, that the person must have done something wrong
and is likely guilty.
I was privileged to have been an Assistant District Attorney for the 34th
Judicial District and to have personally worked with some of the greatest criminal
trial lawyers in the state of Texas. Jim Darnell, Mary Stillinger, Joe Spencer,
Kathleen Salome Smith, Chris Antcliff, Maureen Franco, Sergio Coronado, Ray
Velarde, Dolph Quijano, Jr., Louie Gutierrez, Gary B. Weiser, Mathew DeKoatz,
Jaime Gandara, Danny Anchondo, Margarito Rodriguez, Michael Blake, Chris
Bradley, Mike Cervantes, Louis Lopez, Ron Henry, Alex Melendez, Leonard
Morales, Greg Anderson, Robert Perel, Fernando Chacon, Jaime Olivas, Jesus
Olivas, Ignacio Estrada, Frank Guzman, Ruben Hernandez, Mike Cervantes,
Robert Harris, Gary Hill, Richard Jewkes, Francisco Macias, Charles Roberts,
Reggie Trejo, Leon Schydlower, Darren Ligon, Robert Perez, Joe Rosales, Mark
Rosales, Rafael Salas, Patrick Lara and Victor Salas are some of the great lawyers
representing criminal defendants in El Paso.
These lawyers have so much experience with our juries. They have fought
the battles in our courts and have earned the right to be mentioned because of
their experience.
The criminal law section of the El Paso Bar Association is headed by Danny
Razo and Brock Benjamin, two other excellent criminal defense attorneys. These
lawyers work hard to represent the rights of the accused, at times with little pay.
I was approached at the ceremony for Lady Justice by a man after my brief
speech who thanked me for my words and told me that the most important thing
in a free society is the rule of law.
Criminal defense attorneys work hard to promote the rule of law. Remember
that the out of town lawyers do not know our juries and do not have the experience
of the El Paso criminal defense attorneys. For all of your criminal problems, hire
an El Paso lawyer!
Laura Enriquez,
President
October/November 2014
4
Student Loan Assistance for Public Service Lawyers
By Jacob Wedemeyer
L
awyers often service student loan debt
after college and law school. There are
programs that provide loan repayment
assistance for lawyers that work for the
government, legal aid, or other non-profits.
Various entities provide assistance, including
the U.S. Department of Education, the State Bar
of Texas/Texas Access to Justice Foundation,
and some law schools and employers. Here
are some of the programs in Texas:
• US Dept. of Edu: Public Service Loan
Forgiveness (PSLF) program: 10-year plan.
• US Dept. of Edu: Perkins Loan deferral
and cancellation for prosecutors and public
defenders: 5-year plan.
• SBOT/TAJF: Texas Student Loan
Repayment Assistance Program. Limited
funding.
• John R. Justice Student Loan Repayment
Program for prosecutors and public defenders,
administered by the Texas Higher Education
Coordinating Board. Limited funding.
• Educational Loan Repayment for Attorneys
Employed by the Office of the Attorney
General.
• UT Law Loan Repayment Assistance
Program.
• Rural Texas prosecutors loan repayment
assistance. Tex. Edu. C. Sec. 61.9601 et seq.
Not funded.
The main program is the U.S. Department of
Education’s Public Service Loan Forgiveness
(PSLF) program that forgives qualifying
federal loans after 10 years of eligible public
service. Non-lawyers and other occupations
may also qualify for assistance.
More information is available online,
especially from Equal Justice Works at
www.equaljusticeworks.org/ed-debt and
the US Department of Education at https://
studentaid.ed.gov/repay-loans/forgivenesscancellation/charts/public-service#what-kindsof-employment.
JACOB WEDEMEYER Is an Assistant County Attorney
in the General Counsel unit.
El Paso Bar Association
Oc t o ber B a r L uncheo n
Tuesday, October 14, 2014
El Paso Bar Association
November Bar Luncheon
Tuesday, November 4*, 2014
El Paso Club l 201 E. Main, 18th Floor,
Chase Bank - cost $20 per person, 12:00 Noon
El Paso Club • 201 E. Main, 18th Floor,
Chase Bank - cost $20 per person, 12:00 Noon
Guest Speaker
John Balliew, CEO of the El Paso Water Utilities
who will give a presentation on the state
of water in our region.
Lt. Col. Runo C. Richardson, Deputy
Staff Judge Advocate of Ft. Bliss
Door prizes will be given out
Door prizes will be given out
Please make your reservations
by Monday, October 13, 2014 at 1:00 p.m.
at [email protected] or [email protected]
Please make your reservations by Monday, November
3, 2014 at 1:00 p.m. at [email protected]
or [email protected]
Please make sure you RSVP.
*This month’s luncheon was changed because November 11th
is Veterans Day and a National Holiday.
Articles published in the Bar Journal do not necessarily
reflect the opinions of the El Paso Bar Association, its Officers, or the Board of Directors. The El Paso Bar Association
does not endorse candidates for political office. An article
in the Bar Journal is not, and should never be construed to
be, an endorsement of a person for political office.
Guest Speaker
This is our annual salute to Veterans
Access to Justice Legal Fair
Saturday, October 25, 2014
9:00 a.m. to 1:00 p.m. Valle Verde Campus
El Paso Community College, 919 Hunter
If you can volunteer for the clinic, please contact George Andritsos
at 566-9995 or Nancy Gallego at [email protected]
October/November 2014
5
C A L E NDA R O F E V E NT S
October, 2014
Tuesday, October 7
EPBA BOD Meeting
Wednesday, October 8
EPALP Monthly Luncheon
Guest Speaker: Larry Phifer
Friday, October 10
Memorial Resolution
Rickie Feuille
November, 2014
Thursday, October 16
EPPA Monthly Luncheon
Thursday, October 16
Boss’s Day
Thursday, October 16
Happy Hour @ Anson 11
Upstairs Garden Room
Saturday, October 25
Access to Justice Legal Fair
Valle Verde Campus, EPCC
Monday, October 13
Columbus Day-EPBA
Office Closed
Tuesday, October 14
EPBA Monthly Luncheon
Guest Speaker: John Balliew,
CEO
El Paso Water Utilities
Tuesday, November 4
EPBA Monthly Luncheon
Guest Speaker:
Lt. Col. Runo C. Richardson
Annual Salute to Veterans
Wednesday, November 12
EPALP Monthly Luncheon
Tuesday, November 4
EPBA BOD Meeting
Thursday, November 27
Thanksgiving Day – EPBA Office Closed
Tuesday, November 11
Veterans Day – EPBA Office
Closed
Friday, October 31
Halloween
Thursday, November 20
EPPA Monthly Luncheon
Friday, November 28
Thanksgiving Holiday – EPBA
Office Closed
Upcoming Events:
Tuesday, December 2
EPBA BOD Meeting
Thursday, December 4
Joint Holiday Party
Tuesday, December 9
EPBA Monthly Luncheon
50-Year Attorneys
Thursday, February 12-14, 2015
19th Annual Civil Trial Practice Seminar
Mirage Hotel and Casino
Las Vegas, Nevada
ATTENTION ATTORNEYS:
CRIMINAL APPOINTMENTS
IF YOU WISH TO BE APPOINTED TO CRIMINAL FELONY AND MISDEMEANOR CASES, YOU MUST FILL OUT THE
FOLLOWING APPLICATION:
1. EL PASO DISTRICT AND COUNTY COURTS TEXAS FAIR DEFENSE ACT ATTORNEY APPLICATION
IF YOU WISH TO HAVE AN EXCEPTION TO RECEIVE CRIMINAL CASE APPOINTMENTS BECAUSE YOU CURRENTLY DO NOT
HAVE THE NECESSARY CLE HOURS OR TRAINING, YOU MUST FILL OUT THE FOLLOWING APPLICATON:
2. EL PASO DISTRICT AND COUNTY COURTS APPLICATION FOR EXCEPTION TO QUALIFICATIONS TO RECEIVE
CRIMINAL CASE APPOINTMENTS
THE APPLICATIONS MAY BE PICKED UP AT ANY OF THE DISTRICT COURTS, COUNTY COURTS AT LAW, COUNTY
CRIMINAL COURTS AT LAW, COUNTY COURT ADMINISTRATION (ROOM 302), JAIL MAGISTRATE, EL PASO BAR
ASSOCIATION (LL-112) AND THE COUNCIL OF JUDGES ADMNISTRATION (ROOM 101).
ALL ORIGINAL APPLICATIONS MUST BE RETURNED TO THE COUNCIL OF
JUDGES ADMINISTRATION, 500 E. SAN ANTONIO #101, EL PASO, TX 79901
“THE EL PASO CRIMINAL DISTRICT AND COUNTY COURTS PLAN STANDARDS AND PROCEDURES RELATED TO
APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS” WAS APPROVED BY THE COUNCIL OF JUDGES ON JULY 31,
2014. THE PLAN IS AVAILABLE ON THE COUNCIL OF JUDGES ADMINISTRATION COUNTY WEBSITE, www.epcounty.com. ALSO
ON THE COUNCIL’S WEBSITE IS THE “EL PASO CRIMINAL DISTRICT AND COUNTY COURT SCHEDULE OF FEES FOR THE
COMPENSATION OF COURT APPOINTED COUNSEL” TO BE EFFECTIVE SEPTEMBER 1, 2014.
CJA-8/15/14
ALL APPLICATIONS MENTIONED ABOVE ARE ALSO AVAILABLE
ON THE COUNCIL OF JUDGES ADMINISTRATION WEBSITE WHICH CAN BE FILLED OUT ON LINE.
October/November 2014
6
ADVANCE SHEET,
October 30, 1275 A.D.
Richard H. Feuille
Memorial Resolution Ceremony
The Eighth Court of Appeals
and the El Paso Bar Association
will hold a Memorial Resolution Ceremony
for
Richard H. Feuille on
Friday, October 10, 2014, 10:00 a.m.
Eighth Court of Appeals
12th Floor, El Paso County Courthouse
By Charles Gaunce
From the rolls of the Abbey of
Bec, court held in Tooting [Surry]
on Monday before the feast of S.
Leonard: (Note, the feast of S.
Leonard in 1275 was on Monday,
November 6, so the trial was on
Monday, October 30.)
John son of Alma demands
a cottage which Henry Fleming
holds and gives the lord 12 d.
for the oath and recognition
of 12 men; pledge Richard
Jordan. The jurors say that
Henry Fleming has the better
right.
SAVE THE DATE!!!
19th Annual Civil Trial
Practice Seminar
Mirage Hotel & Casino
Las Vegas, Nevada
February 12, 13 & 14, 2015
Room rates are: $96 on 2/12/2015 $166 on 2/13/2015 & $186 on 2/14/2015
Complete Schedule and List of Speakers
will be in the next issue of the Bar Journal.
Make your plans to join us for a great seminar!!!
Upcoming Holidays
Columbus Day – Monday, October 13, 2014
Veterans Day – Tuesday, November 11, 2014
Thanksgiving Day – Thursday, November 27, 2014
Day after Thanksgiving – Friday, November 28, 2014
Clearly, the court was faced
with a property dispute with John
claiming a possessory right to
Henry´s cottage. The dispute found
its way to the court and upon
paying what we would recognize
as a filing fee of 12 pennies (I will
leave it to you to ponder the effects
of inflation), the case was tried.
The jurors returned a finding that
Henry’s right to possession was
higher than John’s. Case closed.
One of the truly interesting
aspects of this dispute is the jury.
It is unknown whether there existed
juries in England prior to 1066, but
after King Harold took an arrow to
his eye on the fields at Hastings,
William made rather substantial and
long-lasting changes to how things
were generally run in government.
Two hundred years later, juries were
an integral part of the settlement of
disputes, both civil and criminal.
However, the juries were not what
we would recognize as being fair
and impartial. Rather, juries were
an assemblage of persons from
the community who either knew
the parties and the basis for their
dispute, or they were expected
to investigate the circumstances
October/November 2014
surrounding the dispute. This
seems to be somewhat closer to
the concept of a grand jury that
we know today, although our
modern grand juries are not as well
informed as the petit juries of old.
I am certainly not an advocate
for a return to the judicial practices
of 800 years past, but I can’t help
but wonder if their practice of
selecting a pre-informed jury was
appropriate for the culture of the
day. They lived in a fairly small
and community-informed society,
where most everyone knew the
smallest details of the business
and disputes of everyone else.
Gossip was rampant and served as
the chief form of entertainment.
Under these circumstances, finding
a group of 12 persons who were
studiously ignorant of a dispute
between individuals would be
simply impossible to do. The
purpose of a trial was to submit
the dispute to the judgment of the
community and thereby permit
everyone to move on with their
lives knowing how the community
resolved the issue.
It seems to have worked for
them.
CHARLES GAUNCE is the Legal
Reference Librarian at the University
of Texas at El Paso.
This case was decided during the reign
of King Edward the First. King John,
who signed Magna Carta in 1215,
was King Edward’s grandfather. King
Edward married Eleanor, Alphonso’s
half sister, who bore him many
children. Alphonso X of Spain (¨El
Sabio¨) published Las Siete Partidas
in 1256 A.D.
7
Some Early History of Legal Aid
in El Paso, Texas
By Clinton F. Cross
Introduction
The Pledge of Allegiance to our flag promises
“liberty and justice for all.” Above the entrance
to the United State’s Supreme Court are
inscribed the words “Equal Justice for All.” This
year there will be pro bono clinics, and a lot of
words will be uttered embracing the notion that
our justice system dispenses justice fairly.
At the same time, the President of the
American Bar Association admitted this year
that our legal system over-serves the wealthy
and under-serves the poor and the middle class.
Private funding and pro bono efforts cannot meet
the acknowledged need. Public funding for legal
aid remains highly controversial. What is to be
done? With the development of the computer
and the internet, there may be opportunities in the
future to provide some constructive responses
to the eternal challenge of providing justice to
most Americans at an affordable price.
I will not write today, however, about dreams
for the future, but about the past. This year marks
the 50 year anniversary of the Civil Rights Act of
1964 and the 40 year anniversary of creation of
the Legal Services Corporation (LSC). I mention
these two pieces of legislation together because
each has civil rights components and there is an
El Paso link to both events. Former Scott Hulse
attorney Ralph Yarborough was perhaps the only
Southern Senator to vote for the Civil Rights Act
of 1964. Today, is the primary funding source of
the Local Legal Aid Program.
Getting the Program Started
The struggle for publicly funded legal services
in El Paso began in 1966. Schuyler Marshall,
chairman of the El Paso Bar Association Legal
Aid Committee, submitted a grant proposal to
the Office of Economic Opportunity (OEO)
in 1966, and three more proposals in 1967.
The OEO rejected all four proposals as being
inadequate.
During this period, Richard Marshall (not
related to Schuyler Marshall), a leader of the
Council on Neighborhood Services for Equal
Opportunity (CONSEJO), Tom Diamond,
and Lucy Edwards, an attorney who headed
Project Bravo, the local OEO affiliate, drafted
a proposal to the OEO for a legal aid program.
In the 1950’s Richard Marshall, joined by Scott
Hulse attorney Richard Feuille, had advocated
for a legal services program for the poor in El
Paso, but these early efforts were not successful.
The purpose of the Marshall-Diamond-Edwards
proposal was to prod the established Bar into a
proposal that would have a greater chance for
funding.
Finally, Mark Howell, who at the time
was an associate with the Peticolas law firm,
drafted a proposal that on December 10, 1968
was submitted to the OEO. Frustrated by the
funding hierarchy, Howell went over the head
of the Texas Governor’s office and the local El
Paso Bar directly to the OEO to get funding
for a local legal aid program. In April, 1969,
the proposal was funded. It is rumored that
Howell was asked to leave his firm because
of his role in getting El Paso Legal Assistance
Society (EPLAS) funded. On September 22,
1969, EPLAS opened its doors to the public
on the ninth floor of the International Building
at 109 North Oregon Street. The Director Fred
Weldon, who previously worked for the firm of
Mullinax and Wells in Dallas, received a salary
of $15,000.00 a year.
My Career as an OEO Lawyer
When I arrived in El Paso in October,
1969, the program was staffed by a Director,
Fred Weldon; lawyers Michael Mendelson,
Bob Millard and myself; and Reginald Heber
Smith scholars (“Reggies”) Kent Morrison and
Stuart Abelson. The Reggies were paid from an
independent funding source, and remained in
their assignments as independent employees.
As such, they were free at any time to ask for
a reassignment. The lawyers were all expected
to handle family law cases, but also to focus
on one other area of practice. I was assigned
“consumer law.”
In the beginning, there were many critics
of publicly funded legal aid who claimed that
the OEO lawyers were troublemakers and
“headline grabbers.” I don’t think the criticism
was deserved. We did a lot of boring, routine
“service” work.
Sometimes the routine practice changed,
but not always because we initiated the change.
For instance, when I first arrived, we handled
divorces and we had to set each and every
October/November 2014
divorce case for a hearing before we could go
to court. It was very time consuming. Judge
Enrique Peña changed the divorce practice in El
Paso by setting uncontested divorces on Fridays
without the necessity of obtaining a prior court
setting for each case. After Peña’s changes
were implemented, we obtained the assistance
of Marlene Anderson, a Volunteer in Service to
America (VISTA) volunteer, who interviewed
the clients and prepared the necessary paperwork
prior to the court hearings. One Friday I divorced
15 women, one after another. I learned on that
day that misery loves company.
When I began my work at EPLAS, there were
no lawyers in El Paso representing “consumers.”
According to the generally accepted definition,
“consumers” are not just buyers, but individuals
who enter into transactions for “personal, family,
or household” purposes. In other words, the
transactions did not involve the exchange of
large sums of money. In addition, only a few
lawyers in El Paso represented poor people, and
then rarely with sufficient time or resources to
give the case a first class effort. For my clients,
justice was a new experience.
In my first year, I had a lot of fun writing
creditors who had sent my judgment proof
clients aggressive collection letters demanding
payment of money on installment contracts
which violated the Texas Credit Code and the
Federal Truth in Lending Act. I noted all the
credit code violations, totaled the amount of the
time price differential and/or the finance charges,
allowed an offset for the creditor’s claim, and
then demanded payment for balance owed to
my clients. I didn’t follow up on my claims in
court, but the creditors usually quit bothering my
clients. I helped awaken the business community
and their lawyers to the new state and federal
credit code legislation, which I considered more
than a fair quid pro quo.
One of my first cases involved referral
selling. I kept seeing clients who had purchased
a Filter Queen vacuum cleaner, couldn’t pay
for it, and were sued by the finance company
that had purchased the local distributor’s paper.
The clients complained they had purchased the
vacuum cleaner because they needed one and
because they could “get one for free and make
money to boot” by simply referring prospective
8
customers to the company. The hitch was that
to get the ten dollar referral fee the prospective
customers had to “be reliable” and if both the
husband and wife were married they had to
show up for the sales pitch together. “Reliable”
meant they had to have “good credit.” My
clients referred people who showed up but the
company refused to pay the ten dollars when
they did not buy the machine because they were
not “reliable.” When the company sued my
clients, I alleged illusory promise and fraud but
I lost when the finance company proved “holder
in course” status.
Fortunately or unfortunately, the company
kept suing my clients so I kept trying to find
a defensive theory that would work. I finally
concluded that the contracts were illegal for
a number of reasons. For example, my clients
were not members of the Credit Bureau and
thus had to “take a chance” that the individuals
who they referred to the local franchisee were
“reliable.” When I alleged illegality as a defense,
I started to “win” because the company would
non-suit their cases. But the company kept
selling vacuum cleaners and new clients kept
coming in the door.
I did more research and discovered the Texas
Gaming Statute. Around the turn of the century,
Will Burges (who later in his career went to work
for Scott Hulse) and T.A. Falvey went to Austin
and got the Texas legislature to approve the
legislation. Burges and Falvey wanted to deter
gambling and prostitution in El Paso and the State
of Texas. At the time, criminal convictions for
these kinds of enjoyable activities were hard to
obtain. The statute allowed the Attorney General
of Texas, any District or County Attorney, or
any individual without regard to interest, to file
a lawsuit to enjoin the use of premises when it
was being used to violate the law. I filed suit
on behalf of a client, seeking an injunction.The
District Attorney, represented by Mike Gibson,
intervened. The case was transferred to the 34th
District Court. On May 7, 1971, Judge Gerry
Woodard granted the injunction. The injunction
was the first of its kind in the state of Texas.
I began to see many clients that same year
who were being sued by a school for failing to
pay for loans obtained to finance their children’s
education at Federal Vocational Training
Institute. The school advertised “Learn your way
to better pay,” promising both an education and
a job. The applicants were usually high school
drop outs who thereafter had gotten married
and decided to get their act together. The school
referred prospective students or their parents to
a loan company to borrow the money for the
course and then pay the school the entire amount
before the classes started. When the students
went to class, they found inadequate tools to
do the work. The plumbing class only had a
thread cutter. The mechanics class consisted of
watching mechanics at a garage on Dyer street
work on vehicles. The students were not allowed
to do any work themselves. Many of the students
complained to their parents that they were not
learning anything. The parents went to the loan
company threatening to quit making payments
on the loan. The loan company replied that
they had nothing to do with the deal the parents
made with the school, and that they would
have to pay the loan or face the consequences.
Many parents also complained to the school.
The school officials often pointed out that their
children were high school dropouts, losers, and
that their children were to blame because they
wouldn’t pay attention in class.
Fortunately, State Senator Joe Christie was
sponsoring legislation to regulate private trade
and business schools. His two associates, Mark
Berry and Ed Dunbar, helped draft the proposed
trade school legislation.
At the same time, Senator Christie was
seeking funding for a community college in El
Paso. El Paso needed the community college
and the legislature funded it.
The private trade and business school
October/November 2014
legislation passed. The legislation created a
Proprietary School Advisory Commission which
had regulatory authority. At the first hearing of
the Advisory Commission, I testified in support
of the first proposed regulations. The Advisory
Commission adopted proposed regulations that
addressed many of the abuses experienced by
my clients. Private trade and business schools
thereafter complied, or moved to another state.
In the same year, the Texas Consumer Credit
Commissioner’s office proposed a regulation to
require disclosure of finance terms in Spanish
when the sales presentation was conducted in the
Spanish language. I testified in support of this
proposed regulation. It was adopted.
In my defense of alleged debtors (as in
the Filter Queen cases), I was frequently
met with a “holder in due course” claim by
alleged creditors and I was precluded from
asserting my normal contractual defenses. I
believed this ancient doctrine may have made
sense in “the courts of the dusty foot” during
the Renaissance, but that today in consumer
transactions it had become merely a collection
device that protected fraud in the marketplace.
When I learned that my friend and sometimes
adversary Albert Armendáriz, Sr. was trying
to overcome a holder in due course claim in a
suit by Surety Savings and Loan Association in
9
connection with a home improvement loan, I
filed an amicus brief in support of his appeal in
the Eighth Court of Civil Appeals arguing that
the doctrine violated the due process clauses
of the United States and Texas Constitutions
in the absence of an “intelligent, knowing and
voluntary” waiver of the debtor’s traditional
contractual defenses. I based my argument on
a federal appeals case that held cognovit notes
in Pennsylvania unconstitutional for the similar
reasons. The court didn’t give much attention
to my argument. I felt vindicated when the
Federal Trade Commission later promulgated
Rule 433, which limited the effect of the holder
in due course doctrine in consumer transactions.
By the way, after three appeals to the Texas
Supreme Court, Albert Armendáriz, Sr. and his
son Albert Armendáriz, Jr. finally won their case.
At the time, it was a landmark opinion. Hidalgo
Savings and Loan v. Carolina Hidalgo, 487 S.W.
2d 702 (Tex. 1972), 481 S.W.2d 208 (Tex. 1972),
and 462 S.W. 2d 540 (Tex.1971).
I also saw a lot of clients who had received
letters from attorneys purporting to represent
clients who were owed money by my clients
to their clients. Problem was, the lawyers were
hired by collection agencies to “sign” the letters
but they had not been hired by the creditors
they allegedly represented and the collection
agencies had not purchased the claims from the
creditors. Since some of the lawyers engaged in
the practice held important political jobs in El
Paso, I chose to attack the problem indirectly
by filing “applications to perpetuate testimony”
with attached interrogatories to the creditor and
then subpoenaing the creditor to come to court
and answer the interrogatories. This turned out
to be a particularly entertaining event when my
cases landed in Justice of the Peace Brunson
Moore’s court.
In December, 1971, Bill Meredith, an
unhappy prospective car buyer came to our legal
aid office complaining about a car dealer who
had rolled back the odometer on a late model
high mileage car he had for sale. Meredith did
not buy the car, but thought the practice of rolling
back odometers on cars should be stopped. I
obtained an affidavit from Bill Meredith and
sent it to the Texas Attorney General’s office,
Consumer Protection Division.
The following year was an election year.
Prior to the primary elections, the Sharpstown
Bank scandal began to make headlines across
the state and rocked the established political
system. Houston attorney John Hill challenged
the incumbent Attorney General Crawford
Martin. Joe Longley, one of Hill’s supporters,
persuaded Hill to support passage of the current
Deceptive Trade Practices Act (“DTPA”). Hill
also planned to establish local, regional offices
for the Attorney General’s Office. John Hill
won the election.
Joe Longley, a former Assistant Attorney
General in Martin’s Consumer Protection
Division, had long criticized his former employer
for not taking action against car dealers for
rolling back the mileage on used cars. When
Hill won the election, Martin’s employees in
the Consumer Protection Division began to
worry about their future employment. Martin
relented and allowed his office to accept an
“Assurance of Voluntary Compliance” from the
El Paso Dealer who in agreeing to the Voluntary
Compliance expressly denied wrongful conduct
but promised never to roll back the odometers on
a used vehicle again in the future. The Assurance
was filed in Austin, Texas.
Thereafter, District Attorney Steve Simmons,
led by Assistant District Attorney Doris Sipes,
conducted an investigation of the odometer
rollback business in El Paso and discovered
that many of the new and used car dealers were
regularly employing rollback artists to roll back
the mileage on late model high mileage vehicles.
The District Attorney forwarded the results of his
investigation to the lame duck Attorney General
and demanded further action. The Attorney
General promised action, but, like a “stalled used
car,” nothing happened. The Attorney General
claimed insufficient funds to take action.
At the time I was West Texas Vice President
of the Texas Consumer Association, a consumer
advocacy organization affiliated with the
Consumer Federation of America. The President
October/November 2014
of the Texas Consumer Association sent a
telegram to the Attorney General offering to
loan the Attorney General sufficient funds to
“carry out his duties entrusted by the people of
Texas.” El Paso Times reporter Allen Pusey
(now publisher and editor of the American Bar
Association Journal) and El Paso Herald Post
reporter Nancy Hamilton covered the story on
a daily basis and published the telegram in the
papers. Two days later, the Attorney General
notified the President of the Texas Consumer
Association that his office had found sufficient
funds to follow up on the El Paso District
Attorney’s investigation. Shortly thereafter the
Attorney General filed suit against 39 local
new and used car dealers and on the same day
filed 39 agreed permanent injunctions enjoining
the practice. The Texas Automobile Dealers
Association (TADA) followed up by requiring
that every one of its members sign an Assurance
of Voluntary Compliance agreeing never to roll
back the odometers on their used cars. Judge
Tom Blackwell in Austin claimed he got writer’s
cramps signing all the agreements.
John Hill took office January 1, 1973. He
named Joe Longley head of his Consumer
Protection Division. With the help of former El
Paso District Attorney and Assistant Attorney
General Barton W. Boling, Hill opened a
Regional Office in El Paso, Texas. He sought
and obtained passage of the Texas Deceptive
Trade Practices Act which, like the Texas
Gaming statute, provided for both public and
private remedies. I believe the first case filed
by Hill’s Consumer Protection Division was
against Health Mor, Inc., the manufacturers of
10
Filter Queen vacuum cleaners. The pleading
tracked mine, but replaced the Texas Gaming
statute as a vehicle for enforcement with the
new DTPA.
I Wasn’t the Only One
EPLAS lawyers brought a number of other
important cases in the short period of time that I
was there. Fred Weldon and private practitioner
J.B. Ochoa filed a suit to prohibit busing of
children who lived in Smeltertown to schools
in South El Paso, when the nearest schools
were in West El Paso. Albert Armendáriz, Sr.
and the Mexican American Legal Defense
Fund eventually assumed responsibility for
prosecuting the case. Alvarado v. El Paso
Independent School District, 593 F. 2d 577
(Court of Appeals, 5th Circ. 1979, cert.
den’d). Bill Pate filed a suit challenging
the State’s requirement to post a filing fee
when running for office, with no exceptions.
Stuart Abelson filed an intervention petition
on behalf of an indigent client. The United
States Supreme Court eventually ruled for
the petitioners. Carter v. Dies, 403 U.S. 904
(1970). Kent Morrison filed suit to declare the
requirement of an appeal bond from eviction
cases with no in forma pauperis exception
unconstitutional.
A very important case brought by EPLAS
was Morales v. Thurman, 569 F. Supp. 332
(E.D. Tex. 1983), a case that began because
171st District Court Judge Edward Berliner,
responsible for the juvenile docket, was
as a matter of course signing judgments
sending juveniles to the Texas Youth Council
(“TYC”) without a hearing when the parents
and the juvenile authorities both agreed that
the juveniles would profit from spending
some time there. Judge Berliner should not
be blamed for this practice; he inherited it,
and no-one questioned it until the Morales
case was filed. EPLAS attorney Steve Bercu
learned that other courts throughout the State
were following similar procedures. The case
ended up being filed in East Texas and landed
in federal judge William Wayne Justice’s court.
The case morphed into major institutional
litigation, receiving national recognition.
It preceded Ruiz v. Estelle, 503 F. Supp.
1265 (S.D. Tex. 1980), another important
institutional suit against the Texas Department
of Corrections. Former El Paso District
Attorney W. Barton Boling was responsible for
defending both cases during his tenure as Chief
of Mark White’s Law Enforcement Division.
Unfortunately, problems with the juvenile
justice system continue to receive attention.
Congress Establishes
the Legal Services Corporation
The Legal Services Corporation Act was
signed by President Richard Nixon on July 24,
1974. The Corporation absorbed the existing
OEO programs and at the local level nothing
seemed to immediately change. During the
OEO era and thereafter, there continued to be
upheavals and political struggles. In 1977 I
spoke to a group of lawyers about the work of
the Texas legislature and the political climate
and commented:
The work ethic remains a strong factor
in Texas. The poor are viewed with anger
and hostility, chastised as a group as
responsible for their failure to produce.
In addition, rural Jeffersonian attitudes
about government are very popular.
The federal government is viewed with
suspicion and hostility. The mood is
“the less government the better.” Dolph
Briscoe perhaps personifies this sentiment
better than anyone else. And Dolph is
very popular.
In this climate, progressive, thoughtful,
and sensitive consideration of welfare
proposals is not likely to occur very
often.
In the consumer area, a business
backlash is developing all across the
country. . . In Texas, consumer groups are
in retreat, even with the help of the Texas
Attorney General.
In 1980, local Bar Associations across the
State of Texas presented resolutions at the
Texas State Bar Convention asking the State
Bar to oppose continued financing of the Legal
Services Corporation by the federal Government.
The Erath County Bar Association’s Resolution
claimed that legal services for the poor was
already being adequately provided by private
attorneys in a pro bono or similar fashion and
condemned assistance to “undeserving clients.”
The proposed Resolution was defeated by a
margin of three to one, but the sentiments it
expressed have not been entirely extinguished.
What happened to the OEO lawyers?
Some moved to other cities; many are still
here. A few became famous or leaders in our
profession.
Hector Uribe, the third Director, became a
State Senator. A few years ago he tried acting
and played the rich Mexican in the film No
Country for Old Men.
Federico Peña became Mayor of Denver.
October/November 2014
Thereafter, President Clinton appointed him to
serve in his cabinet as Secretary of Transportation
and later as Secretary of Energy.
Kent Morrison, a “Reggie” who specialized
in low income housing cases, became the second
Director of EPLAS. He was then recruited
to become, in Washington, Director of the
Operations Division and special assistant to
the Director of the OEO’s Office of Legal
Services (OLS), which ran the nationwide OEO
legal services program. With a “management
change” at OLS after President Nixon’s reelection (Kent reports his door connecting
with the OLS Director’s office was padlocked
shut to – unsuccessfully, he says – keep him
from leaking documents to the National Legal
Aid and Defender Association), Kent entered
private practice with the Washington office of
Jones Day, where he became a partner. In 1973
and 1974, while with Jones Day, he worked
with Louis Oberdorfer and David Tatel (both
subsequently federal judges) on the transition
from the OEO legal services organization to
the new LSC.
In 1979 Kent was one of the founding
partners of Crowell and Moring, a Washington
D.C. firm now employing over 500 lawyers
and maintaining offices around the United
States and overseas. At Crowell and Moring,
Kent has been a Chambers-ranked leader of the
government contracts law bar while continuing
to handle various pro bono cases on behalf of
poor clients (one seeking to preserve affordable
housing for poor residents at landmark location
in the District of Columbia that took eight years
to successfully resolve). With others, he has
encouraged the development of a culture in his
firm that is exceptionally committed to providing
pro bono work to the needy. Crowell & Moring
is a leader that that regard in Washington, having
the District’s first “pro bono partner” position
and donating around a million dollars annually
in pro bono hours for assistance to the needy.
Continuing his own work for affordable
housing for the poor, Kent now serves on the
Board of Directors of the Homeless Persons
Representation Project (HPRP), a Maryland
non-profit that, besides providing legal services
itself, trains private lawyers, among other
things, to work with veterans who have been
unable to obtain benefits to which they are
entitled, thereby assisting them in getting
affordable housing. Kent is also the original
promoter/creator and now longtime treasurer
of the Crowell and Moring Foundation. The
Foundation annually funds at least one Equal
Justice Works Fellow and grants to charitable
organizations that focus on education and other
11
services for children in need.
Has anything changed?
There is not much real justice for the poor and
the middle class in our expensive, adversarial
“fee for service system.” The problem that
continues to confront the profession is how
to provide meaningful legal services to all
Americans at a price that is affordable. Although
funding for the Legal Services Corporation
has been controversial, there has been change,
public funding for legal services in a number
of areas which formerly were the domain
of the private Bar. Supported by women’s
advocacy groups, states have passed reciprocal
child support enforcement legislation. States,
counties, and cities have funded child support
collection offices. Many law enforcement
agencies now provide legal services to those
who seek protective orders from threatened
family violence. The federal government funds
programs to provide legal assistance to the
developmentally disabled. In addition, the bitter
opposition to publicly funded legal services has
somewhat subsided. Former legal aid lawyers,
such Hector Uribe, Federico Peña, and more
recently LSC alumnus El Paso State Senator
José Rodríguez, have been elected to political
office. Others, like Kent Morrison, have entered
private practice while remaining keenly sensitive
to the needs of our less fortunate citizens.
What can be done?
The organized legal profession knows that
it is in the profession’s best interest to provide
justice not only to the corporations who can
afford it but also to the public at large. The
organized Bar supports public funded legal
services for the poor, but it is not enough.
Our profession may be at a crossroads.
Perhaps computers and the Internet will provide
opportunities for the profession that will open
the doors of justice to millions who in the past
have been denied access to reasonable and
affordable dispute resolution. It is a consumer
issue, an important consumer issue challenging
our profession today. It will up to the next
generation of American lawyers to try to find
the right answers.
CLINTON CROSS is an Assistant El Paso County
Attorney assigned to the Criminal Unit.
Spoliation In Texas after
Brookshire Brothers Ltd. v. Aldridge 2014 Tex. LEXIS 562 (July 3, 2014)
S
poliation is not an independent cause of
action in Texas Trevino v. Ortega, 969
S.W2d 950, 969 (Tex. 1988.). However,
some Plaintiffs plead spoliation in their petition
seeking a jury instruction for the failure
to preserve evidence. The Texas Supreme
Court recently addressed the standards of a
spoliation claim and the parameters of a trial
court’s discretion to impose such sanctions in
Brookshire Brothers v. Aldridge.
In this case, Brookshire Brothers preserved
the surveillance footage of plaintiff’s slip and
fall beginning several minutes before the fall to
one minute after the fall. However, Brookshire
allowed any additional footage to be erased
pursuant to its common retention policy. The
trial court allowed the jury to hear evidence
regarding whether Brookshire Brothers spoliated
the video and submitted a spoliation instruction
to the jury. However, there was no indication
that the decision regarding the amount of
footage to preserve was based in any way on
what additional footage would have shown
or to purposefully conceal relevant evidence.
The Texas Supreme Court reversed the Court
of Appeals´ judgment and remanded the case
By Laura Enriquez & Monica Perez
for a new trial stating that the court abused its
discretion because there was no evidence that
Brookshire Brothers intentionally concealed
or destroyed the video. The Supreme Court
reaffirms that there is no duty to preserve
evidence until a party knows or should know of
a claim and only if the evidence is relevant. The
Court also states that the sanctions to be assessed
depend on the specific conduct. Additionally,
the Court states that a spoliation instruction is
warranted only when discarding the evidence is
done intentionally to conceal evidence or when
it involves the actual subject matter at issue in
the case.
The Court further explains that the standard
to determine whether spoliation has occurred,
and the parameters of a trial court’s discretion
to impose a remedy upon a finding of spoliation,
including submission of a spoliation instruction
to the jury, involves a two-step judicial process:
(1) the trial court must determine, as a question
of law, whether a party spoliated evidence,
and (2) if spoliation occurred, the court must
assess an appropriate remedy. To conclude
that a party spoliated evidence, the court must
find that (1) the spoliating party had a duty to
October/November 2014
reasonably preserve evidence, and (2) the party
intentionally or negligently breached that duty
by failing to do so. The spoliation findings
and any sanctions are to be determined by the
trial judge, outside the presence of the jury, in
order to avoid unfairly prejudicing the jury by
the presentation of evidence that is unrelated
to the facts underlying the lawsuit. Therefore,
any evidence bearing directly upon whether
a party has spoliated evidence is not to be
presented to the jury, except if it relates to the
substance of the lawsuit. If there is a finding of
spoliation, the trial court has broad discretion
to impose a remedy that must directly relate
to the conduct giving rise to the sanction and
may not be excessive. The failure to adhere to
these rules was an abuse of discretion by the
trial court in this case that mandates a new trial
for Defendant Brookshire Brothers.
LAURA ENRIQUEZ is an shareholder in the firm of
Mounce, Green, Myers, Safi & Galatzan specializing
in personal injury defense litigation.
Monica Perez is an Associate at Mounce, Green,
Myers, Safi, Paxson & Galatzan, P.C.
12
Las Siete Partidas
I
t is important to note the long-standing
cultural traditions, minds, and documents
that have affected jurisprudence in Texas
because these artifacts of the past hold those
in the legal profession to the highest standards
of integrity and virtue in the present.
One such work is Las Siete Partidas, a
beautiful doctrinal letter that is commonly
regarded as the most significant law code of
the Middle Ages. King Alfonso X of Castile
commissioned the compilation and synthesis
of various laws into Las Siete Partidas. The
Code was first published in 1256, but needless
to say, it remained an integral part of Spanish
and Mexican law well through the nineteenth
century.
This article discusses how the Spanish
and Mexican legal culture, through Las Siete
Partidas, influenced the Texas Supreme Court.
“Judges, justices, and arbitrators do not render
decisions in a factual and legal vacuum… their
responses reflect the interaction of many factors
including cultural heritage and geographic
location.”1 A study of the various cultural
heritages that impacted the current legal system
in Texas features the rich influence of Las Siete
Partidas.
Las Siete Partidas is broken into seven parts,
and each of the seven parts begins with a letter
of King Alfonso’s name. This structure alludes
to Aristotle’s teachings that all things are
created and divided in seven manners. Seven
was a very important number at that time, and
still is: seven heavens, seven days of the week,
seven liberal arts, seven wonders of the ancient
world, etc. Seven was perceived to be a number
of God and Las Siete Partidas is “a book for
the service of God and the common benefit of
nations.” First Partida, Title 1.
The Code begins by explaining its structure
and organization, and then states that “these
laws are ordinances to enable men to live well
and regularly according to the pleasure of God,
and also, as is proper, to live a good life in this
By N. Jessica Lujan
world…” Such is the calling we as attorneys
or officers of the court have, to “enable men to
live well and regularly.”
From its inception, Las Siete Partidas
influenced Texas law in many ways, particularly
in the area of procedure, property law, water land
law, and family law. Much of the Southwestern
United States was under Spanish (and later,
Mexican) rule until the fourth and fifth decades
of the 19th century. Texas’ present legal system
is based on common law, which was “adopted”
(but not entirely) as the law of the Republic of
Texas in 1840, and Castillian law.2
A study of jurisprudence of the Texas
Supreme Court requires the inclusion of
Hispanic culture because “Spaniards, Mexicans,
and Tejanos, each a non-English-speaking
group, played a significant role in shaping the
Texas Supreme Court’s jurisprudence.”3
Spanish law has influenced our jurisprudence
in many ways, such as:
First, Spaniards living in Texas had to
resolve disputes between themselves without
the benefit of trained lawyers. As a result,
Spaniards were never committed to technical
pleadings. Texans for the most part abandoned
the English “forms of action” and instead
adopted “notice pleading.”
Second, Spaniards did not have a divided
court system. Texans followed suit by
abandoning “courts of equity” and “courts
of law.”
Third, Las Siete Partidas protected debtors
by not allowing creditors the right to deprive
them of the tools of the trade they needed to
carry on a business. Early Texans liked this
concept. The Texas exemption statutes track
the spirit of the protections first set out in Las
Siete Partidas.
Fourth, Spanish community property law
was retained.
Fifth, Spanish law relating to land title,
mineral rights, and contracts, although never
fully adopted by Texas courts, has often
influenced judicial debate.
Finally, some aspects of Spanish family law
have been adopted.
Texas judges still cite Las Siete Partidas as
authority for their arguments, sometimes for
the majority view and sometimes in dissent.
Although these cases are too numerous to
mention here, one example may be of interest.
Justice Eva Guzmán of the Supreme Court of
Texas, who only a week ago was the featured
speaker at the MABA banquet here in El Paso,
referenced Las Siete Partidas when she stated
in a dissenting opinion that, “Given the historic
presumption of the public’s right to use the
dry beach, dating back to the days before the
Republic, it is hardly definitive that an ordinary
grant of the nature of the Jones and Hall grant
automatically extinguished all public use of the
shore, even when title shifted.” Severance v.
Patterson, 370 S.W.3d 705, 746 (Tex. 2012).
Justice Guzmán probably relied on the
section of Las Siete Partidas that states, “Every
man can build a house or a hut on the sea shore
which he can use whenever he wishes… and
so long as he is working there or is present no
one else should molest him so that he cannot
use and be benefited by all these things.” Third
Partida, Title 28, Law 4.
In the end, the noble ends of Las Siete
Partidas are visible in today’s laws and policies
and are promulgated by attorneys and officers of
the court. As we celebrate the 800th anniversary
of Magna Carta, and its influence on American
jurisprudence, we should also remember King
Alfonso, his noble commitment to the law, and
his everlasting contribution to the Texas’ legal
system through Las Siete Partidas.
N. JESSICA LUJAN Is a candidate for a Juris
Doctorate degree, May, 2016, at the University of
San Diego School of Law. She was recently selected
to receive a scholarship from the San Diego La
Raza Lawyers Association Scholarship Fund for her
community work. When not attending law school, she
resides in El Paso.
1. David A. Furlow, The Loan Star Republic’s Supreme Court Wove the Fabrics of Texas Law from the Threads of Three Competing Legal Traditions (Part 1: Material
Differences in Legal Culture), available at http://www.texascourthistory.org/documents/TSCHS_Journal_Fall_2013.pdf (September 19, 2014 at 11:30 AM).
2. Richard R. Orsinger, 170 Years of Texas Contract Law- Part 1, available at http://www.texascourthistory.org/documents/TSCHS_Journal_Fall_2013.pdf (September 19,
2014 at 11:30 AM).
3. David A. Furlow, The Loan Star Republic’s Supreme Court Wove the Fabrics of Texas Law from the Threads of Three Competing Legal Traditions (Part 1: Material
Differences in Legal Culture), available at http://www.texascourthistory.org/documents/TSCHS_Journal_Fall_2013.pdf (September 19, 2014 at 11:30 AM).
October/November 2014
13
S enior L awyer I nterview
Judge Charles R. Schulte
By Clinton F. Cross
Charles R. Schulte died on August 2, 2014
at the age of 92. In his honor, we re-publish
the “Senior Lawyer Interview” that we first
published in the Bar Bulletin nine years ago.
Ed.
Cross: Tell me about your family and your
childhood.
Schulte: I was born in St. Louis, Missouri.
My father was an architect. When I was eight,
he brought the family to El Paso. I went to Rusk
Elementary and Austin High School. My family
moved and I transferred to Ysleta. I was student
body President at Ysleta High School. I was
also Vice President of the El Paso Interschool
Council. Eddie Feuille, Ricky Feuille’s brother,
was the President. Alice Stovall was the Student
Body Secretary at Ysleta. I ended up marrying
Alice fifty-seven years ago. During our college
days, Alice’s work for the telephone company
kept food on the table. Things were tight and
at Thanksgiving we couldn’t afford the whole
turkey, and Alice would stuff a turkey leg.
When I graduated from high school and
finished one year at El Paso College of Mines,
my father was Chief of Army Engineers for the
Atlantic side of the Panama Canal Zone. He put
me to work there first in the warehouse, then on
the France Field Airport and then as a foreman
dispatcher in the motor pool. On the lighter side,
during this period, I took part in the Canal Zone
Theater and announced in Spanish and English
on a Panamanian radio station at times.
I then joined the Army Air Corps, served
a little over two years guarding the jungle
emplacements and moved to administrative
work. I was discharged as a sergeant in 1946.
Cross: Siblings? Children?
Schulte: I have four surviving brothers
and a sister. I was the oldest. Jack is a retired
pediatrician; George is a retired engineer from
Howard Hughes; Harry is a retired accountant
and lives here as does my sister Barbara who
is married to Stanley Stephenson, retired from
Phelps Dodge.
Our children, Perry Kay, Bob Jr. and Don
Park are all in education. Perry and Don both
have doctorates. Bob Jr., a veteran of the Air
Charles R. Schulte
Force, has his Masters.
Cross: Why did you decide to pursue a
legal career?
Schulte: My high school science teacher,
Frances Means, who is still in El Paso, held
mock trials in her class. I had to play lawyer,
and I decided I’d like to keep it up.
Cross: Where did you go to law school?
Schulte: After my discharge from the Air
Force, I returned to the College of Mines, and
then went to the University of Texas School of
Law in Austin. With the help of the “lap back”
program I was able to graduate from Mines in
1949 and the School of Law in 1950. I was in
Senor ROTC during law school and finished that
as a “Distinguished Military Graduate”.
The day after I got my lawyers degree I was
commissioned as a second lieutenant. Later I
was named as first lieutenant, JAG.
Cross: What happened next?
Schulte: I went into practice in El Paso with
Thor Gade in the Caples Building. Together we
paid $25 a month for the office and the secretary
to answer the phone. Since we had only one
office, when one of us had a client the other one
had to run errands to attend to other business
outside the office. Unfortunately, this lucrative
arrangement came to an end when I was called
October/November 2014
to active duty during the Korean Conflict as an
officer in the Air Force Judge Advocate Corps.
I was sent to England as the legal officer for the
97th Bomb Wing, then assigned to Biggs Air
Force Base here in El Paso where I completed
my tour of duty.
I returned to law practice, ultimately with
Richard White. I also served during 1959-60 as
an alternate City Judge. When Woodrow Bean
resigned as County Judge, I was appointed
Interim County Judge by Governor Price
Daniels and served in that post until Glenn
Woodard was elected County Judge.
When Richard White ran for Congress I was
his campaign chairperson. Richard got elected
and I was most fortunate to have Fred Morton
join me in the Bassett Tower. I continued serving
in the Air Force Reserve as legal services
attorney at Biggs until Biggs was closed. After
that I was assigned to another reserve unite
covering most of West Texas and became its
commanding officer.
In 1966 Governor John Connally appointed
me to the 41st District Court where I served for
fifteen years until 1981. At that time, Governor
William Clements named me the fourth justice
on the Eighth Court of Appeals, which was
given criminal jurisdiction as well as civil at
that time. I retired from the appellate court at
the end of 1988.
Cross: Any community service work
during your legal career?
Schulte: I have served as Chairman for the
March of Dimes of El Paso. I also have been
a member of the board of directors of R.E.
Thomason Hospital. After retirement, I taught
Legal Ethics in Adult Education at UTEP for
four years. For eight years I served as a member
of the Department of Defense committee for the
Employer Support of the Guard and Reserve,
from1990-98. I also have chaired committees
for the State Bar of Texas, served as lecturer at
West Texas and state Judicial conferences.
Cross: Church?
Schulte: Alice and I are Methodist. I have in
the past served on the Church Board of Stewards
and Board of Trustees.
14
Cross: Awards:
Schulte: After leaving the County Judge’s
post, I was pleased to receive the Conquistador
Award from the City of El Paso, and I was
an Admiral in the El Paso Navy. The Young
Lawyers Association recognized my work on
the district court and although they forgot to
invite me to the banquet where the award was
made I did receive the “George N. Rodriguez Sr.
Memorial Award for Outstanding Service.”
I was fortunate to receive a diploma from the
Air War College, Air University in March 1978.
After completing all reserve requirements, and
over thirty years service, the Air Force retired
me as a colonel in 1980. I was then awarded
the Meritorious Service Medal and Exceptional
Service Award. I was also honored to be named
as a Fellow in the Texas Bar Foundation.
Cross: What was the most interesting or
important cases that you ever worked on?
Schulte: I presided as a trial judge over one
of the earliest pollution cases in the country and
the resulting lead poisoning cases that followed.
In the mid 1970’s, the State of Texas and the
City of El Paso brought suit in the 41st District
Court against ASARCO. The proceedings
began in February and continued until May
with experts from throughout the USA. As a
result major injunctive relief was granted and
substantial penalties assessed. Smeltertown was
abandoned. The case was a pioneering case at
the time and was covered by Paul Harvey and
many others.
Cross: You have an opportunity to advise
a young lawyer about to begin practice. What
do you say to him?
Schulte: Integrity. Integrity, in the long run,
more important than anything else.
SPOTLIGHT ON AN EL PASO ATTORNEY
Alejandro Acosta, Jr.
By Clinton F. Cross
CROSS: Tell me about your parents and
your childhood.
ACOSTA: I say this often, I was proud to be
born in El Paso, Texas on Friday, the 13th, 1951.
My dad, Alejandro Acosta, Sr., was a master
sergeant in the U. S. Army on the day I was born
at William Beaumont General Hospital, which
in those days were just barracks on the corner
of Dyer and Fred Wilson. My mom, Lucy G.
Acosta, gave birth to me at a very convenient
time, which allowed my dad to spend two weeks
with me before he went off to the Korean War. I
did not see him again until two years later when
he returned from the war. My mom had a large
extended family who helped take care of me
while she went to work every day. My dad’s
childhood was less fortunate. He was an orphan
at the age of 11 and had his older brother, who
was 13, as his only family. Obviously, they both
started working immediately after their parents
passed away. When my dad returned home from
the Korean War, and with the help of a V.A.
loan, my mom and he purchased a modest home
in a new neighborhood in what is now central El
Paso. They purposely chose this neighborhood
so we could attend the “best” schools in El Paso,
which were Coldwell Elementary and Austin
High School. It was a great neighborhood to
grow up in with lots of kids. Three years later,
my brother, Daniel, was born (now a Harvard
graduate and associate general counsel for
Farmers Insurance Company).
After his retirement, he graduated from El Paso
Community College with the highest of honors.
He was handed his associates degree diploma
by his wife, my mom, who was the first female
trustee of the El Paso Community College.
She, of course, later co-founded Lulac Project
Amistad, which, to this day, provides valuable
assistance to the elderly in our community and
all along the border.
My dad and mom were great parents as they
provided us with a wonderful childhood. They
instilled us with a great work ethic and stressed
the value of a great education and allowed us to
participate in athletics as long as we kept our
grades up. My dad taught us toughness and to
never give up. My mom taught us respect for
others and to give back to your community.
Our parents did not accept excuses for failure
but instead placed an emphasis on winning.
At the age of 63, that is still what drives me to
this day. My dad worked in the data processing
department of El Paso Natural Gas for 25 years.
October/November 2014
CROSS: What led you into a career in
law and how did it evolve into your present
law practice?
ACOSTA: For those of us that grew up in
the 50’s and 60’s, we all remember television in
black and white. There were timeless programs
like Rawhide, Gunsmoke, Superman, American
Bandstand and a good program about a lawyer
named Perry Mason. I realized at a young age
that was what I wanted to do when I grew up.
I did take a different path to try and prepare
myself to be a lawyer. Instead of joining the
debate and mock trial teams, I chose athletics,
which were a lot more fun. In elementary school,
I played football, basketball and baseball and in
high school I wrestled and played football. I had
a great experience and opportunity to wrestle in
college at the University of Texas at El Paso and
the University of New Mexico. In my opinion,
athletics really provided a training ground for a
young trial lawyer. It taught me to never give up
and when you get knocked down, get up, dust
15
yourself off and get back in the game.
As a result, during my senior year in college,
I developed a back-up plan to teach and
coach if I didn’t get accepted to law school.
Fortunately, I was accepted and I attended
George Washington Law School in Washington,
D.C. I was excited because I had never traveled
east of Corpus Christi and I thought it would
be a great new world.
After the first semester of law school
exams, my first of five children was born.
I had to find a full-time job to support my
family. I was fortunate to receive a clerkship
with the United States Department of Justice,
Civil Rights Division. I worked full-time and
went to school full-time. Before graduation,
I received job offers from firms in El Paso
and Phoenix, Arizona. I chose to come back
home and I began my practice with a small
firm named Diamond Rash. In 1979, I moved
to Phoenix and practiced with a large firm,
O’Connor Cavanaugh, principally in the areas
of commercial and construction litigation,
products liability and insurance defense. I
returned to El Paso and continued my trial
practice with several of El Paso’s finest firms.
I have learned many things from the
outstanding lawyers that practice in El Paso
and the very good judges that preside over the
El Paso docket. I believe I have evolved as a
person along with my present law practice.
Currently I am the Executive Partner at
Bickerstaff Heath Delgado Acosta. We have
offices in El Paso, Austin, Houston and the
Rio Grande Valley. My partners are some
of the best lawyers in Texas, many of which
are well-known and respected for our firm’s
representation of governmental entities, such
as water utilities, cities, counties, school
districts and colleges. My childhood friend
and long-time law partner, Hector Delgado,
represents private industry, which includes
U.S. and international companies. Hector and
I are also partners in the joint venture firm of
Delgado Acosta Spencer Linebarger & Perez
LLP, which collects delinquent taxes for all of
the taxing jurisdictions for El Paso County. He
has been a great partner and a close friend. My
practice is still a litigation practice that consists
of commercial, products liability, insurance
defense and the representation of El Paso Water
Utilities Public Service Board.
Cross: Tell me about your profession and
community service involvement.
Acosta: In 1979, I was elected PresidentElect of the El Paso Young Lawyers
Association and was awarded the Outstanding
Young Lawyer Award in 1985. In 1988, I
was elected and served as President of the
Texas Young Lawyers Association (TYLA).
I was the first minority bar president elected
to lead a state-wide bar organization in the
history of the United States. That year, TYLA
was awarded the Comprehensive Award of
Achievement for the most outstanding Young
Lawyers Association in the country. I also
served on the State Bar Board of Directors
and its executive committee from 1987 to
1989. I served on the Texas Supreme Court
Rules Advisory Committee from 1993 to
1996 and also served on the State Bar Judicial
Relations Committee. In addition, I am
presently a member of the Product Liability
Advisory Council and the International
Association of Defense Counsel. In 199798, I served as President of the El Paso
Sun Bowl Association. We led a successful
effort to pass a rental car tax to support the
Sun Bowl game and its activities. The Sun
Bowl generates approximately $14 million
for the El Paso community each year. I have
also been on the Board of Directors of the
El Paso Hispanic Chamber of Commerce,
the local chapters of the United Way and the
American Heart Association, and numerous
other community service organizations. I also
served as Chairman of the Board of Cathedral
High School and Loretto Academy.
CROSS: You are associated with an Austin
law firm. Have you had an opportunity to
practice outside El Paso?
ACOSTA: Starting in the mid 1990’s to
the present time, I have been fortunate to be
involved in what has become to be known
as “Mass Tort Litigation.” This was the
filing of multiple actions involving products
liability claims against several pharmaceutical
companies in multiple jurisdictions. These
claims were not only filed throughout Texas
but also across the nation. Plaintiffs, for the
most part, were being represented by the most
well-known and successful plaintiffs firms
throughout the country. The pharmaceutical
industry responded by engaging some of
the best defense firms and defense lawyers
throughout the country. I was lucky enough
to be chosen as a member of these large
defense teams. I was involved in discovery that
occurred throughout Texas, the United States,
and even as far away as Copenhagen, Denmark.
Our defense trial teams represented clients in
cases involving birth control devices, weight
reduction medication, and cough medication.
Our teams tried some of these cases to jury
October/November 2014
verdict, but in the end most cases were settled.
It was, of course, a remarkable experience to
work with and against some of the best lawyers
in the country.
CROSS: What is the focus of your El
Paso practice?
ACOSTA: For a number of years now,
I have represented El Paso Water Utilities
Public Service Board. In the desert, water is
as precious as gold. Recently one of our most
interesting cases was El Paso Apartment
Association v. City of El Paso. The El Paso
Water Utilities Public Service Board (EPWU)
is a stormwater drainage utility with the power
to set stormwater rates for its customers. EPWU
set its stormwater rates based on the amount
of its customers’ impervious cover. El Paso
Apartment Association, along with a number of
other commercial entities with large amounts
of impervious cover, challenged EPWU’s
stormwater rates in Federal District Court on
the basis of three theories.
The first theory was that EPWU was in
violation of the Fair Housing Act. El Paso
Apartment Association argued that Hispanic
residents make up the majority of residents
living in apartments, and the higher stormwater
rates for apartment buildings would result in
disproportionately higher stormwater rates
for Hispanic residents versus non-Hispanic
residents within the City of El Paso, thus
violating the Fair Housing Act.
The second theory was that EPWU had
violated the Equal Protection Clause of the
14th Amendment. El Paso Water Apartment
Association claimed the stormwater rate design
did not have a rational basis for its design.
The final theory was a state law claim in
which El Paso Apartment Association argued
that EPWU’s stormwater rates were not a bona
fide fee, but instead an occupational tax, which
can only be met with different criteria.
El Paso Apartment Association sought a
temporary restraining order and a temporary
injunction, and both were denied. EPWU then
filed a motion for summary judgment, which
was granted. El Paso Apartment Association
appealed the second and third theories of its
case to the 5th Circuit, where it argued the
Federal District Court erred in granting the
motion for summary judgment. The 5th Circuit
rejected El Paso Apartment Association’s
argument. It determined that EPWU, acting as
a governmental entity, had a rational basis for
the design of the stormwater rates and rejected
the occupational tax argument, and thus
affirmed the Federal District Court’s summary
judgment.
16
CROSS:You have experienced the
practice of law in many jurisdictions.
Would you recommend to a law school
graduate to consider moving to El Paso to
practice law?
ACOSTA: I would strongly recommend
that they move to El Paso and practice law.
I just read Laura Enriquez’s President Page,
and I couldn’t agree with her more when
she says “El Paso has the finest talent in the
State of Texas.” I can tell you that I have
worked shoulder-to-shoulder with the best
defense lawyers in the country. I have also
sat across the counsel table from the best
plaintiff’s lawyers in this country. I think I
have experienced the right to say that our
lawyers and our judges are as good as the
best our profession has to offer. Lastly, El
Paso is progressing and evolving into a city of
great opportunity. My wife, Rene, and I have
helped put five kids through college, graduate
school and law school. All five of my children
went away to school. All five have come back
to professional careers in El Paso. That says a
lot for the progress of our City. The best part
is that I get to see my four grandchildren play
football, tennis and volleyball.
CLINTON CROSS is an Assistant El Paso County
Attorney assigned to the Criminal Unit.
Adobe Acrobat “Portfolio” - Preparing
Your DYNAMIC Trial Notebook
by
I
David J. Ferrell
n Adobe Acrobat you can assemble
multiple files into an integrated PDF
portfolio that can be used as a dynamic
comprehensive trial notebook. You can
combine in one computer file, many files
of different formats, created in different
applications, without converting them to
PDF. For example, you can assemble all
the documents for a specific trial, including
scanned (police, medical, etc.) reports,
email messages, spreadsheets, photographs,
videos, CAD drawings, audio files (911
calls, etc.), PowerPoint presentations, and
many other types of trial data that you want
to present. The original files retain their
individual identities, but are still part of
the PDF Portfolio file. Each component file
can be opened, read, edited, and formatted
without affecting the other files in the PDF
Portfolio. That means you can have all your
good stuff in one place.
Rather than trying to explain in great
detail what all this means I will direct you to
an Internet link to a paper I wrote in 2009 for
a State Bar of Texas seminar in Houston, 3rd
Annual Law Practice Management Course,
“Working Smarter in Hard Economic
Times.” You can go to the Texas Bar CLE
website and pay $29 for this paper or you can
download it at the link below free. The State
Bar has the copyright, but since I wrote it I
have the preemptive copyright and I invite
you to download the forty-seven page paper,
read it and experiment with it. It is a big file,
almost fifty megabytes, so depending on
your download speed it might take up to five
minute to down load it. Be patient. I think
you will enjoy the paper once you have it.
The paper is accessible with the free Adobe
Acrobat reader that I am sure you already
have. If not, Google “Acrobat Reader” and
you will be directed to a site that provides a
free download of the reader software.
HERE IS THE LINK TO MY PAPER
- http://tinyurl.com/ka9w4dz
DAVID FERRELL is an El Paso attorney specializing
in probate and criminal law. He also assists law
firms in development of their computer trial and law
office technology. He serves on the WEB Services
Committee of the State Bar of Texas
Classified Ad::
Newly remodeled one bedroom apartment in Central El Paso for rent: 1717 Raynor (near
Memorial Park), refrigerated air, washer, dryer, garage with automatic garage door opener.
Fireplace, new dishwasher and garbage disposal; wood floors. $750.00 per month. Tenant
pays gas and electric bills. Landlord pays water bill. Call Stuart Leeds at 241-8418.
October/November 2014
17
Banking on Justice
November is Texas IOLTA Prime Partner Bank Month
I
By Betty Balli Torres,
n 1984, the Supreme Court of Texas created
the Interest on Lawyers’ Trust Accounts
(IOLTA) Program as a means of providing
funds for legal aid. For many years, the system
worked as it was intended, and played a major
role in the funding of the state’s legal aid
system.
Fast-forward 30 years and the picture has
changed drastically. Due to historically low
interest rates, the revenue generated from the
program has plummeted. As a result, lowincome Texans are forced to face serious,
complicated and sometimes life-threatening
civil legal issues on their own.
In 2007, IOLTA revenue was $20 million;
in 2014, it is projected to total only $4.2
million—a decline of more than 75 percent.
Since 2007, the Texas Access to Justice
Foundation has experienced a loss of $99.3
million due to declines in funding from the
Interest on Lawyers’ Trust Accounts (IOLTA)
program.
More than 5.8 million Texans qualify for
legal aid, and many are turned away due to a
lack of resources. The decline in IOLTA revenue
resulted in a crisis in access to the justice system
for low-income and poor Texans.
Fortunately, more than 60 Texas banks have
helped to address the problem by becoming
Prime Partner banks. Prime Partner banks
voluntarily pay higher interest rates on IOLTA
accounts, helping close the gap in funding. These
banks increased IOLTA revenue by millions
throughout Texas. In November, we recognize
the important role of these banks during Prime
Partner Bank recognition month.
El Paso-area Prime Partner banks include:
First Savings Bank
PlainsCapital Bank
Funds from the Prime Partner program help
the Texas Access to Justice Foundation provide
assistance to Texas families seeking justice for
an abused child, receiving health benefits for
an elderly person, or getting a family back in
their home when faced with a foreclosure or
eviction.
The El Paso Association of
Legal Professionals (EPALP)
Will hold its monthly education
meetings as follows:
Wednesday, October 8, 2014
12:00 Noon, El Paso Club
Guest Speaker will be Larry Phifer who will speak
about Risk Allocation and Indemnification
Wednesday, November 12, 2014
12:00 Noon, El Paso Club
Guest Speaker will be Charles Scruggs who will
speak on Worker’s Compensation
RSVP to Carol Gutierrez at
[email protected] or at 533-2493 x 471
The Prime Partner program needs help from
the legal community to keep up the momentum.
You can:
• Bank with a Prime Partner bank to strengthen
the program and encourage additional banks to
join the cause.
• Thank your local Prime Partner bank for
their assistance in helping low-income Texans
and join the “I Bank of Justice”campaign to
highlight your support.
• A more direct way to help is to contact
eligible banks and ask them to join the Prime
Partner program. Visit the Texas Access to
Justice Foundation website at www.teajf.org
to see a list of eligible banks and to learn how
to recruit new Prime Partners.
With the support of the legal community,
we’ll continue to close the gap in funding for
legal aid. Banking with a Prime Partner is
banking on justice.
BETTY BALLI TORRES Is Executive Director of the
Texas Access to Justice Foundation
Please be our guest at our
Happy Hour
hosted by
El Paso County Trial Lawyers Association
El Paso Young Lawyers Association
El Paso Bar Association
Thursday, October 16, 2014
5:30 p.m. – 7:30 p.m.
ANSON Eleven ~ Upstairs Garden Room
303 North Oregon St, Ste. 110
Drinks and appetizers courtesy of our sponsors:
HMR Funding
Davis Settlement Partners
If you have any questions, please call Lisa Mellors
at 512/476-3852 or at [email protected]
October/November 2014
18
W. Reed Leverton, P.C.
Attorney at Law • Mediator • Arbitrator
Alternative Dispute Resolution Services
300 East Main, Suite 1240
El Paso, Texas 79901
(915) 533-2377 - FAX: 533-2376
on-line calendar at: www.reedleverton.com
Experience: Licensed Texas Attorney; Former District Judge; Over 900 Mediations
Commitment to A.D.R. Processes: Full-Time Mediator / Arbitrator
Commitment to Professionalism: LL.M. in Dispute Resolution
Your mediation referrals are always appreciated.
October/November 2014
19
October/November 2014
EL PASO BAR ASSOCIATION
500 E.San Antonio L-112
El Paso, Texas 79901
(915) 532-7052
PRESORTED
STANDARD
U. S. POSTAGE
PAID
EL PASO, TEXAS
PERMIT NO. 2516
22nd Annual El Paso
Criminal Trial Seminar
Joint Bar Association
Holiday Party
Thursday, December 4, 2014,
5:30 – 7:30 p.m.
November 14 & 15, 2014
Inn of the Mountain Gods
12.0 hours of Texas and New Mexico CLE
El Paso Community Foundation,
333 N. Oregon, 1st Floor
Join us for Food, Drinks, Laughter,
Music, a Silent Auction
and Holiday Cheer!!!
For more information or if you would
like to donate to the Silent Auction, contact
Nancy at [email protected]
The Silent Auction benefits
the El Paso Bar Foundation.
Cost: $300 for attorneys
licensed 3 years or more as of the
date of the seminar $250 for all
others; No charge for full-time
judges hearing criminal cases.
You must register
by November 5th.
Block of rooms has been
reserved at Inn of the
Mountain Gods, call
1/800/545-9011 ext. 7660,
tell them you are with
the El Paso Criminal
Law Seminar.
For more information contact Elena Aguilar
at [email protected]
October/November 2014