Some Early History of Legal Aid in El Paso, Texas Las Siete Partidas Alejandro Acosta, Jr.

20 Pages·2014·3.61 MB·English

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
WE MAKE
A STRONG
CASE
(cid:58)(cid:75)(cid:72)(cid:87)(cid:75)(cid:72)(cid:85)(cid:3)(cid:92)(cid:82)(cid:88)(cid:183)(cid:85)(cid:72)(cid:3)(cid:82)(cid:83)(cid:72)(cid:81)(cid:76)(cid:81)(cid:74)(cid:3)(cid:92)(cid:82)(cid:88)(cid:85)(cid:3)(cid:192)(cid:85)(cid:86)(cid:87)(cid:3)(cid:83)(cid:85)(cid:68)(cid:70)(cid:87)(cid:76)(cid:70)(cid:72)(cid:3)(cid:82)(cid:85)(cid:3)(cid:74)(cid:85)(cid:82)(cid:90)(cid:76)(cid:81)(cid:74)
(cid:90)(cid:76)(cid:87)(cid:75)(cid:3)(cid:81)(cid:72)(cid:90)(cid:3)(cid:83)(cid:68)(cid:85)(cid:87)(cid:81)(cid:72)(cid:85)(cid:86)(cid:15)(cid:3)(cid:76)(cid:87)(cid:3)(cid:83)(cid:68)(cid:92)(cid:86)(cid:3)(cid:87)(cid:82)(cid:3)(cid:90)(cid:82)(cid:85)(cid:78)(cid:3)(cid:90)(cid:76)(cid:87)(cid:75)(cid:3)(cid:68)(cid:3)(cid:69)(cid:68)(cid:81)(cid:78)(cid:3)(cid:87)(cid:75)(cid:68)(cid:87)(cid:3)
(cid:88)(cid:81)(cid:71)(cid:72)(cid:85)(cid:86)(cid:87)(cid:68)(cid:81)(cid:71)(cid:86)(cid:3)(cid:92)(cid:82)(cid:88)(cid:85)(cid:3)(cid:83)(cid:85)(cid:82)(cid:73)(cid:72)(cid:86)(cid:86)(cid:76)(cid:82)(cid:81)(cid:17)
WE BELIEVE IN THE COMMUNITY
(cid:44)(cid:81)(cid:3)(cid:70)(cid:79)(cid:82)(cid:86)(cid:76)(cid:81)(cid:74)(cid:171)(cid:3)(cid:90)(cid:72)(cid:3)(cid:78)(cid:81)(cid:82)(cid:90)(cid:3)(cid:90)(cid:75)(cid:68)(cid:87)(cid:3)(cid:76)(cid:87)(cid:3)(cid:87)(cid:68)(cid:78)(cid:72)(cid:86)(cid:3)(cid:87)(cid:82)(cid:3)(cid:90)(cid:76)(cid:81)(cid:17)
unitedelpaso.com [phone]
Downtown: 401 E. Main West: 125 Mesa Hills Dr. at Mesa East: 9801 Gateway West at McRae & 1726 North Zaragoza Road
October/November 2014
Designed by: CultureSpan Marketing
Attention: El Paso Bar Association
Job Number: UBEP 14-01 United Bank El Paso Bar Association.indd
Size: 7.5” x 4.75” 4C 1/2 Page
Order Number:
Insertion Date(s): Feb 2014
3
P ’ P
resident s age
State Bar of Texas Awards
There are many criminal cases filed in our city. Our
Award of Merit
Star of Achievement federal and state judges are working harder than any other
Outstanding Partnership Award judges in Texas because of the number of arrests made on
Outstanding Newsletter
the border.
Publication Achievement Award
NABE LexisNexis Awards Representing the accused is the most important job any
Community & Education Outreach Award lawyer can have. In my opinion, it is the most difficult lawyer
-2007, 2010 & 2012
job because juries generally do not believe that a person is
Excellence in Web Design – 2007
Excellence in Special Publications – 2008 innocent until proven guilty. Jurors assume that if a person
is on trial, that the person must have done something wrong
Laura Enriquez, President
Myer Lipson, President-Elect and is likely guilty.
Christopher Antcliff, Vice President I was privileged to have been an Assistant District Attorney for the 34th
Mark Dore, Treasurer
Judicial District and to have personally worked with some of the greatest criminal
Jennifer Vandenbosch, Secretary
Randolph Grambling, Immediate Past trial lawyers in the state of Texas. Jim Darnell, Mary Stillinger, Joe Spencer,
President
Kathleen Salome Smith, Chris Antcliff, Maureen Franco, Sergio Coronado, Ray
2014-2015 Board Members Velarde, Dolph Quijano, Jr., Louie Gutierrez, Gary B. Weiser, Mathew DeKoatz,
Brock Benjamin
Jaime Gandara, Danny Anchondo, Margarito Rodriguez, Michael Blake, Chris
Ouisa Davis
Soraya Hanshew Bradley, Mike Cervantes, Louis Lopez, Ron Henry, Alex Melendez, Leonard
Rene Ordonez
Morales, Greg Anderson, Robert Perel, Fernando Chacon, Jaime Olivas, Jesus
Jeff Ray
Melissa Baeza Olivas, Ignacio Estrada, Frank Guzman, Ruben Hernandez, Mike Cervantes,
Daniel Hernandez
Robert Harris, Gary Hill, Richard Jewkes, Francisco Macias, Charles Roberts,
Judge Miguel Torres
Felix Valenzuela Reggie Trejo, Leon Schydlower, Darren Ligon, Robert Perez, Joe Rosales, Mark
Sean White
Rosales, Rafael Salas, Patrick Lara and Victor Salas are some of the great lawyers
Kristina Voorhies Legan
Aldo Lopez representing criminal defendants in El Paso.
David Mirazo
These lawyers have so much experience with our juries. They have fought
Janet Monteros
Philip Mullin the battles in our courts and have earned the right to be mentioned because of
their experience.
Ex-Officios
SBOT Director, District 17, EPYLA, The criminal law section of the El Paso Bar Association is headed by Danny
MABA, EPWBA, ABOTA, FBA, EPBF,
Razo and Brock Benjamin, two other excellent criminal defense attorneys. These
EPFLBA, EPPBA, EPALP
Executive Director lawyers work hard to represent the rights of the accused, at times with little pay.
Nancy Gallego
I was approached at the ceremony for Lady Justice by a man after my brief
Editorial Staff
Clinton Cross, Judge Maria Salas- speech who thanked me for my words and told me that the most important thing
Mendoza, Nancy L. Gallego
in a free society is the rule of law.
& Ballard C. Shapleigh
Criminal defense attorneys work hard to promote the rule of law. Remember
The El Paso Bar Journal is a bi-monthly publication of that the out of town lawyers do not know our juries and do not have the experience
the El Paso Bar Association. Articles, notices, suggestions
of the El Paso criminal defense attorneys. For all of your criminal problems, hire
and/or comments should be sent to the attention of Nancy
Gallego. All submissions must be received by the Bar an El Paso lawyer!
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 Laura Enriquez,
or event. Please contact the Bar office for ad rates. Ar-
President
ticles 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.
October/November 2014
4
Student Loan Assistance for Public Service Lawyers
By JacoB WEdEmEyEr
Lawyers often service student loan debt • SBOT/TAJF: Texas Student Loan The main program is the U.S. Department of
after college and law school. There are Repayment Assistance Program. Limited Education’s Public Service Loan Forgiveness
programs that provide loan repayment funding. (PSLF) program that forgives qualifying
assistance for lawyers that work for the • John R. Justice Student Loan Repayment federal loans after 10 years of eligible public
government, legal aid, or other non-profits. Program for prosecutors and public defenders, service. Non-lawyers and other occupations
Various entities provide assistance, including administered by the Texas Higher Education may also qualify for assistance.
the U.S. Department of Education, the State Bar Coordinating Board. Limited funding. More information is available online,
of Texas/Texas Access to Justice Foundation, • Educational Loan Repayment for Attorneys especially from Equal Justice Works at
and some law schools and employers. Here Employed by the Office of the Attorney www.equaljusticeworks.org/ed-debt and
are some of the programs in Texas: General. the US Department of Education at https://
• UT Law Loan Repayment Assistance studentaid.ed.gov/repay-loans/forgiveness-
• US Dept. of Edu: Public Service Loan Program. cancellation/charts/public-service#what-kinds-
Forgiveness (PSLF) program: 10-year plan. • Rural Texas prosecutors loan repayment of-employment.
• US Dept. of Edu: Perkins Loan deferral assistance. Tex. Edu. C. Sec. 61.9601 et seq.
and cancellation for prosecutors and public Not funded. JACOB WEDEMEYER Is an Assistant County Attorney
defenders: 5-year plan. in the General Counsel unit.
El Paso Bar association El Paso Bar association
October Bar Luncheon November Bar Luncheon
Tuesday, October 14, 2014 Tuesday, November 4*, 2014
El Paso Club l 201 E. Main, 18th Floor, El Paso Club • 201 E. Main, 18th Floor,
Chase Bank - cost $20 per person, 12:00 Noon Chase Bank - cost $20 per person, 12:00 Noon
Guest Speaker Guest Speaker
John Balliew, CEO of the El Paso Water Utilities Lt. Col. Runo C. Richardson, Deputy
who will give a presentation on the state Staff Judge Advocate of Ft. Bliss
of water in our region. This is our annual salute to Veterans
Door prizes will be given out Door prizes will be given out
Please make your reservations Please make your reservations by Monday, November
by Monday, October 13, 2014 at 1:00 p.m. 3, 2014 at 1:00 p.m. at [email protected]
at [email protected] or [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.
Access to Justice LegAL FAir
Articles published in the Bar Journal do not necessarily
reflect the opinions of the El Paso Bar Association, its Offi-
Saturday, OctOber 25, 2014
cers, or the Board of Directors. The El Paso Bar Association
9:00 a.m. to 1:00 p.m. Valle Verde Campus
does not endorse candidates for political office. An article
El Paso Community College, 919 Hunter
in the Bar Journal is not, and should never be construed to
be, an endorsement of a person for political office. If you can volunteer for the clinic, please contact George Andritsos
at 566-9995 or Nancy Gallego at [email protected]
October/November 2014
5
CALENDAR OF EVENTS

october, 2014 November, 2014
Tuesday, October 7 Thursday, October 16 Tuesday, November 4 Wednesday, November 12
EPBA BOD Meeting EPPA Monthly Luncheon EPBA Monthly Luncheon EPALP Monthly Luncheon
Thursday, October 16 Guest Speaker:
Wednesday, October 8 Boss’s Day Lt. Col. Runo C. Richardson Thursday, November 20
EPALP Monthly Luncheon Annual Salute to Veterans EPPA Monthly Luncheon
Guest Speaker: Larry Phifer Thursday, October 16
Happy Hour @ Anson 11 Tuesday, November 4 Thursday, November 27
Friday, October 10 Upstairs Garden Room EPBA BOD Meeting Thanksgiving Day – EPBA Of-
Memorial Resolution fice Closed
Rickie Feuille Saturday, October 25 Tuesday, November 11
Access to Justice Legal Fair Veterans Day – EPBA Office Friday, November 28
Monday, October 13 Valle Verde Campus, EPCC Closed Thanksgiving Holiday – EPBA
Columbus Day-EPBA Office Closed
Office Closed Friday, October 31
Halloween
Tuesday, October 14 upcoming events:
EPBA Monthly Luncheon
Guest Speaker: John Balliew,
CEO Tuesday, December 2 Tuesday, December 9 Thursday, February 12-14, 2015
El Paso Water Utilities EPBA BOD Meeting EPBA Monthly Luncheon 19th Annual Civil Trial Practice Seminar
50-Year Attorneys Mirage Hotel and Casino
Thursday, December 4 Las Vegas, Nevada
Joint Holiday Party
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.
ALL APPLICATIONS MENTIONED ABOVE ARE ALSO AVAILABLE
ON THE COUNCIL OF JUDGES ADMINISTRATION WEBSITE WHICH CAN BE FILLED OUT ON LINE.
CJA-8/15/14
October/November 2014
6
ADVANCE SHEET,
richArd h. FeuiLLe
October 30, 1275 A.D.
Memorial Resolution Ceremony
The Eighth Court of Appeals
and the El Paso Bar Association By charlEs GauncE
will hold a Memorial Resolution Ceremony
for
From the rolls of the Abbey of surrounding the dispute. This
Richard H. Feuille on
Bec, court held in Tooting [Surry] seems to be somewhat closer to
Friday, October 10, 2014, 10:00 a.m.
on Monday before the feast of S. the concept of a grand jury that
Eighth Court of Appeals
Leonard: (Note, the feast of S. we know today, although our
12th Floor, El Paso County Courthouse Leonard in 1275 was on Monday, modern grand juries are not as well
November 6, so the trial was on informed as the petit juries of old.
Monday, October 30.) I am certainly not an advocate
for a return to the judicial practices
John son of Alma demands of 800 years past, but I can’t help
a cottage which Henry Fleming but wonder if their practice of
SAVE THE DATE!!! holds and gives the lord 12 d. selecting a pre-informed jury was
for the oath and recognition appropriate for the culture of the
th
19 Annual Civil Trial
of 12 men; pledge Richard day. They lived in a fairly small
Jordan. The jurors say that and community-informed society,
Practice Seminar
Henry Fleming has the better where most everyone knew the
Mirage Hotel & Casino right. smallest details of the business
Las Vegas, Nevada and disputes of everyone else.
Clearly, the court was faced Gossip was rampant and served as
with a property dispute with John the chief form of entertainment.
February 12, 13 & 14, 2015
claiming a possessory right to Under these circumstances, finding
Room rates are: $96 on 2/12/2015 -
Henry´s cottage. The dispute found a group of 12 persons who were
$166 on 2/13/2015 & $186 on 2/14/2015
its way to the court and upon studiously ignorant of a dispute
Complete Schedule and List of Speakers paying what we would recognize between individuals would be
will be in the next issue of the Bar Journal. as a filing fee of 12 pennies (I will simply impossible to do. The
leave it to you to ponder the effects purpose of a trial was to submit
of inflation), the case was tried. the dispute to the judgment of the
The jurors returned a finding that community and thereby permit
Henry’s right to possession was everyone to move on with their
higher than John’s. Case closed. lives knowing how the community
One of the truly interesting resolved the issue.
aspects of this dispute is the jury. It seems to have worked for
It is unknown whether there existed them.
juries in England prior to 1066, but
after King Harold took an arrow to
his eye on the fields at Hastings,
CHARLES GAUNCE is the Legal
Make your plans to join us for a great seminar!!! William made rather substantial and
Reference Librarian at the University
long-lasting changes to how things of Texas at El Paso.
were generally run in government.
Two hundred years later, juries were
an integral part of the settlement of
This case was decided during the reign
disputes, both civil and criminal.
Upcoming Holidays of King Edward the First. King John,
However, the juries were not what
who signed Magna Carta in 1215,
we would recognize as being fair
was King Edward’s grandfather. King
Columbus Day – Monday, October 13, 2014
and impartial. Rather, juries were Edward married Eleanor, Alphonso’s
Veterans Day – Tuesday, November 11, 2014
an assemblage of persons from half sister, who bore him many
Thanksgiving Day – Thursday, November 27, 2014
the community who either knew children. Alphonso X of Spain (¨El
Day after Thanksgiving – Friday, November 28, 2014
the parties and the basis for their Sabio¨) published Las Siete Partidas
dispute, or they were expected in 1256 A.D.
to investigate the circumstances
October/November 2014
7
Some Early History of Legal Aid
in El Paso, Texas
By clinton F. cross
Introduction Hulse attorney Richard Feuille, had advocated divorce case for a hearing before we could go
The Pledge of Allegiance to our flag promises for a legal services program for the poor in El to court. It was very time consuming. Judge
“liberty and justice for all.” Above the entrance Paso, but these early efforts were not successful. Enrique Peña changed the divorce practice in El
to the United State’s Supreme Court are The purpose of the Marshall-Diamond-Edwards Paso by setting uncontested divorces on Fridays
inscribed the words “Equal Justice for All.” This proposal was to prod the established Bar into a without the necessity of obtaining a prior court
year there will be pro bono clinics, and a lot of proposal that would have a greater chance for setting for each case. After Peña’s changes
words will be uttered embracing the notion that funding. were implemented, we obtained the assistance
our justice system dispenses justice fairly. Finally, Mark Howell, who at the time of Marlene Anderson, a Volunteer in Service to
At the same time, the President of the was an associate with the Peticolas law firm, America (VISTA) volunteer, who interviewed
American Bar Association admitted this year drafted a proposal that on December 10, 1968 the clients and prepared the necessary paperwork
that our legal system over-serves the wealthy was submitted to the OEO. Frustrated by the prior to the court hearings. One Friday I divorced
and under-serves the poor and the middle class. funding hierarchy, Howell went over the head 15 women, one after another. I learned on that
Private funding and pro bono efforts cannot meet of the Texas Governor’s office and the local El day that misery loves company.
the acknowledged need. Public funding for legal Paso Bar directly to the OEO to get funding When I began my work at EPLAS, there were
aid remains highly controversial. What is to be for a local legal aid program. In April, 1969, no lawyers in El Paso representing “consumers.”
done? With the development of the computer the proposal was funded. It is rumored that According to the generally accepted definition,
and the internet, there may be opportunities in the Howell was asked to leave his firm because “consumers” are not just buyers, but individuals
future to provide some constructive responses of his role in getting El Paso Legal Assistance who enter into transactions for “personal, family,
to the eternal challenge of providing justice to Society (EPLAS) funded. On September 22, or household” purposes. In other words, the
most Americans at an affordable price. 1969, EPLAS opened its doors to the public transactions did not involve the exchange of
I will not write today, however, about dreams on the ninth floor of the International Building large sums of money. In addition, only a few
for the future, but about the past. This year marks at 109 North Oregon Street. The Director Fred lawyers in El Paso represented poor people, and
the 50 year anniversary of the Civil Rights Act of Weldon, who previously worked for the firm of then rarely with sufficient time or resources to
1964 and the 40 year anniversary of creation of Mullinax and Wells in Dallas, received a salary give the case a first class effort. For my clients,
the Legal Services Corporation (LSC). I mention of $15,000.00 a year. justice was a new experience.
these two pieces of legislation together because In my first year, I had a lot of fun writing
each has civil rights components and there is an My Career as an OEO Lawyer creditors who had sent my judgment proof
El Paso link to both events. Former Scott Hulse When I arrived in El Paso in October, clients aggressive collection letters demanding
attorney Ralph Yarborough was perhaps the only 1969, the program was staffed by a Director, payment of money on installment contracts
Southern Senator to vote for the Civil Rights Act Fred Weldon; lawyers Michael Mendelson, which violated the Texas Credit Code and the
of 1964. Today, is the primary funding source of Bob Millard and myself; and Reginald Heber Federal Truth in Lending Act. I noted all the
the Local Legal Aid Program. Smith scholars (“Reggies”) Kent Morrison and credit code violations, totaled the amount of the
Stuart Abelson. The Reggies were paid from an time price differential and/or the finance charges,
Getting the Program Started independent funding source, and remained in allowed an offset for the creditor’s claim, and
The struggle for publicly funded legal services their assignments as independent employees. then demanded payment for balance owed to
in El Paso began in 1966. Schuyler Marshall, As such, they were free at any time to ask for my clients. I didn’t follow up on my claims in
chairman of the El Paso Bar Association Legal a reassignment. The lawyers were all expected court, but the creditors usually quit bothering my
Aid Committee, submitted a grant proposal to to handle family law cases, but also to focus clients. I helped awaken the business community
the Office of Economic Opportunity (OEO) on one other area of practice. I was assigned and their lawyers to the new state and federal
in 1966, and three more proposals in 1967. “consumer law.” credit code legislation, which I considered more
The OEO rejected all four proposals as being In the beginning, there were many critics than a fair quid pro quo.
inadequate. of publicly funded legal aid who claimed that One of my first cases involved referral
During this period, Richard Marshall (not the OEO lawyers were troublemakers and selling. I kept seeing clients who had purchased
related to Schuyler Marshall), a leader of the “headline grabbers.” I don’t think the criticism a Filter Queen vacuum cleaner, couldn’t pay
Council on Neighborhood Services for Equal was deserved. We did a lot of boring, routine for it, and were sued by the finance company
Opportunity (CONSEJO), Tom Diamond, “service” work. that had purchased the local distributor’s paper.
and Lucy Edwards, an attorney who headed Sometimes the routine practice changed, The clients complained they had purchased the
Project Bravo, the local OEO affiliate, drafted but not always because we initiated the change. vacuum cleaner because they needed one and
a proposal to the OEO for a legal aid program. For instance, when I first arrived, we handled because they could “get one for free and make
In the 1950’s Richard Marshall, joined by Scott divorces and we had to set each and every money to boot” by simply referring prospective
October/November 2014
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 before the classes started. When the students legislation passed. The legislation created a
and got the Texas legislature to approve the went to class, they found inadequate tools to Proprietary School Advisory Commission which
legislation. Burges and Falvey wanted to deter do the work. The plumbing class only had a had regulatory authority. At the first hearing of
gambling and prostitution in El Paso and the State thread cutter. The mechanics class consisted of the Advisory Commission, I testified in support
of Texas. At the time, criminal convictions for watching mechanics at a garage on Dyer street of the first proposed regulations. The Advisory
these kinds of enjoyable activities were hard to work on vehicles. The students were not allowed Commission adopted proposed regulations that
obtain. The statute allowed the Attorney General to do any work themselves. Many of the students addressed many of the abuses experienced by
of Texas, any District or County Attorney, or complained to their parents that they were not my clients. Private trade and business schools
any individual without regard to interest, to file learning anything. The parents went to the loan thereafter complied, or moved to another state.
a lawsuit to enjoin the use of premises when it company threatening to quit making payments In the same year, the Texas Consumer Credit
was being used to violate the law. I filed suit on the loan. The loan company replied that Commissioner’s office proposed a regulation to
on behalf of a client, seeking an injunction.The they had nothing to do with the deal the parents require disclosure of finance terms in Spanish
District Attorney, represented by Mike Gibson, made with the school, and that they would when the sales presentation was conducted in the
intervened. The case was transferred to the 34th have to pay the loan or face the consequences. Spanish language. I testified in support of this
District Court. On May 7, 1971, Judge Gerry Many parents also complained to the school. proposed regulation. It was adopted.
Woodard granted the injunction. The injunction The school officials often pointed out that their In my defense of alleged debtors (as in
was the first of its kind in the state of Texas. children were high school dropouts, losers, and the Filter Queen cases), I was frequently
I began to see many clients that same year that their children were to blame because they met with a “holder in due course” claim by
who were being sued by a school for failing to wouldn’t pay attention in class. alleged creditors and I was precluded from
pay for loans obtained to finance their children’s Fortunately, State Senator Joe Christie was asserting my normal contractual defenses. I
education at Federal Vocational Training sponsoring legislation to regulate private trade believed this ancient doctrine may have made
Institute. The school advertised “Learn your way and business schools. His two associates, Mark sense in “the courts of the dusty foot” during
to better pay,” promising both an education and Berry and Ed Dunbar, helped draft the proposed the Renaissance, but that today in consumer
a job. The applicants were usually high school trade school legislation. transactions it had become merely a collection
drop outs who thereafter had gotten married At the same time, Senator Christie was device that protected fraud in the marketplace.
and decided to get their act together. The school seeking funding for a community college in El When I learned that my friend and sometimes
referred prospective students or their parents to Paso. El Paso needed the community college adversary Albert Armendáriz, Sr. was trying
a loan company to borrow the money for the and the legislature funded it. to overcome a holder in due course claim in a
course and then pay the school the entire amount The private trade and business school suit by Surety Savings and Loan Association in
October/November 2014
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 Deceptive Trade Practices Act (“DTPA”). Hill of the Texas Consumer Association sent a
letters from attorneys purporting to represent also planned to establish local, regional offices telegram to the Attorney General offering to
clients who were owed money by my clients for the Attorney General’s Office. John Hill loan the Attorney General sufficient funds to
to their clients. Problem was, the lawyers were won the election. “carry out his duties entrusted by the people of
hired by collection agencies to “sign” the letters Joe Longley, a former Assistant Attorney Texas.” El Paso Times reporter Allen Pusey
but they had not been hired by the creditors General in Martin’s Consumer Protection (now publisher and editor of the American Bar
they allegedly represented and the collection Division, had long criticized his former employer Association Journal) and El Paso Herald Post
agencies had not purchased the claims from the for not taking action against car dealers for reporter Nancy Hamilton covered the story on
creditors. Since some of the lawyers engaged in rolling back the mileage on used cars. When a daily basis and published the telegram in the
the practice held important political jobs in El Hill won the election, Martin’s employees in papers. Two days later, the Attorney General
Paso, I chose to attack the problem indirectly the Consumer Protection Division began to notified the President of the Texas Consumer
by filing “applications to perpetuate testimony” worry about their future employment. Martin Association that his office had found sufficient
with attached interrogatories to the creditor and relented and allowed his office to accept an funds to follow up on the El Paso District
then subpoenaing the creditor to come to court “Assurance of Voluntary Compliance” from the Attorney’s investigation. Shortly thereafter the
and answer the interrogatories. This turned out El Paso Dealer who in agreeing to the Voluntary Attorney General filed suit against 39 local
to be a particularly entertaining event when my Compliance expressly denied wrongful conduct new and used car dealers and on the same day
cases landed in Justice of the Peace Brunson but promised never to roll back the odometers on filed 39 agreed permanent injunctions enjoining
Moore’s court. a used vehicle again in the future. The Assurance the practice. The Texas Automobile Dealers
In December, 1971, Bill Meredith, an was filed in Austin, Texas. Association (TADA) followed up by requiring
unhappy prospective car buyer came to our legal Thereafter, District Attorney Steve Simmons, that every one of its members sign an Assurance
aid office complaining about a car dealer who led by Assistant District Attorney Doris Sipes, of Voluntary Compliance agreeing never to roll
had rolled back the odometer on a late model conducted an investigation of the odometer back the odometers on their used cars. Judge
high mileage car he had for sale. Meredith did rollback business in El Paso and discovered Tom Blackwell in Austin claimed he got writer’s
not buy the car, but thought the practice of rolling that many of the new and used car dealers were cramps signing all the agreements.
back odometers on cars should be stopped. I regularly employing rollback artists to roll back John Hill took office January 1, 1973. He
obtained an affidavit from Bill Meredith and the mileage on late model high mileage vehicles. named Joe Longley head of his Consumer
sent it to the Texas Attorney General’s office, The District Attorney forwarded the results of his Protection Division. With the help of former El
Consumer Protection Division. investigation to the lame duck Attorney General Paso District Attorney and Assistant Attorney
The following year was an election year. and demanded further action. The Attorney General Barton W. Boling, Hill opened a
Prior to the primary elections, the Sharpstown General promised action, but, like a “stalled used Regional Office in El Paso, Texas. He sought
Bank scandal began to make headlines across car,” nothing happened. The Attorney General and obtained passage of the Texas Deceptive
the state and rocked the established political claimed insufficient funds to take action. Trade Practices Act which, like the Texas
system. Houston attorney John Hill challenged At the time I was West Texas Vice President Gaming statute, provided for both public and
the incumbent Attorney General Crawford of the Texas Consumer Association, a consumer private remedies. I believe the first case filed
Martin. Joe Longley, one of Hill’s supporters, advocacy organization affiliated with the by Hill’s Consumer Protection Division was
persuaded Hill to support passage of the current Consumer Federation of America. The President against Health Mor, Inc., the manufacturers of
October/November 2014
10 11
Filter Queen vacuum cleaners. The pleading Congress Establishes Thereafter, President Clinton appointed him to
tracked mine, but replaced the Texas Gaming the Legal Services Corporation serve in his cabinet as Secretary of Transportation
statute as a vehicle for enforcement with the The Legal Services Corporation Act was and later as Secretary of Energy.
new DTPA. signed by President Richard Nixon on July 24, Kent Morrison, a “Reggie” who specialized
1974. The Corporation absorbed the existing in low income housing cases, became the second
I Wasn’t the Only One OEO programs and at the local level nothing Director of EPLAS. He was then recruited
EPLAS lawyers brought a number of other seemed to immediately change. During the to become, in Washington, Director of the
important cases in the short period of time that I OEO era and thereafter, there continued to be Operations Division and special assistant to
was there. Fred Weldon and private practitioner upheavals and political struggles. In 1977 I the Director of the OEO’s Office of Legal
J.B. Ochoa filed a suit to prohibit busing of spoke to a group of lawyers about the work of Services (OLS), which ran the nationwide OEO
children who lived in Smeltertown to schools the Texas legislature and the political climate legal services program. With a “management
in South El Paso, when the nearest schools and commented: change” at OLS after President Nixon’s re-
were in West El Paso. Albert Armendáriz, Sr. election (Kent reports his door connecting
and the Mexican American Legal Defense The work ethic remains a strong factor with the OLS Director’s office was padlocked
Fund eventually assumed responsibility for in Texas. The poor are viewed with anger shut to – unsuccessfully, he says – keep him
prosecuting the case. Alvarado v. El Paso and hostility, chastised as a group as from leaking documents to the National Legal
Independent School District, 593 F. 2d 577 responsible for their failure to produce. Aid and Defender Association), Kent entered
(Court of Appeals, 5th Circ. 1979, cert. In addition, rural Jeffersonian attitudes private practice with the Washington office of
den’d). Bill Pate filed a suit challenging about government are very popular. Jones Day, where he became a partner. In 1973
the State’s requirement to post a filing fee The federal government is viewed with and 1974, while with Jones Day, he worked
when running for office, with no exceptions. suspicion and hostility. The mood is with Louis Oberdorfer and David Tatel (both
Stuart Abelson filed an intervention petition “the less government the better.” Dolph subsequently federal judges) on the transition
on behalf of an indigent client. The United Briscoe perhaps personifies this sentiment from the OEO legal services organization to
States Supreme Court eventually ruled for better than anyone else. And Dolph is the new LSC.
the petitioners. Carter v. Dies, 403 U.S. 904 very popular. In 1979 Kent was one of the founding
(1970). Kent Morrison filed suit to declare the In this climate, progressive, thoughtful, partners of Crowell and Moring, a Washington
requirement of an appeal bond from eviction and sensitive consideration of welfare D.C. firm now employing over 500 lawyers
cases with no in forma pauperis exception proposals is not likely to occur very and maintaining offices around the United
unconstitutional. often. States and overseas. At Crowell and Moring,
A very important case brought by EPLAS In the consumer area, a business Kent has been a Chambers-ranked leader of the
was Morales v. Thurman, 569 F. Supp. 332 backlash is developing all across the government contracts law bar while continuing
(E.D. Tex. 1983), a case that began because country. . . In Texas, consumer groups are to handle various pro bono cases on behalf of
171st District Court Judge Edward Berliner, in retreat, even with the help of the Texas poor clients (one seeking to preserve affordable
responsible for the juvenile docket, was Attorney General. housing for poor residents at landmark location
as a matter of course signing judgments in the District of Columbia that took eight years
sending juveniles to the Texas Youth Council In 1980, local Bar Associations across the to successfully resolve). With others, he has
(“TYC”) without a hearing when the parents State of Texas presented resolutions at the encouraged the development of a culture in his
and the juvenile authorities both agreed that Texas State Bar Convention asking the State firm that is exceptionally committed to providing
the juveniles would profit from spending Bar to oppose continued financing of the Legal pro bono work to the needy. Crowell & Moring
some time there. Judge Berliner should not Services Corporation by the federal Government. is a leader that that regard in Washington, having
be blamed for this practice; he inherited it, The Erath County Bar Association’s Resolution the District’s first “pro bono partner” position
and no-one questioned it until the Morales claimed that legal services for the poor was and donating around a million dollars annually
case was filed. EPLAS attorney Steve Bercu already being adequately provided by private in pro bono hours for assistance to the needy.
learned that other courts throughout the State attorneys in a pro bono or similar fashion and Continuing his own work for affordable
were following similar procedures. The case condemned assistance to “undeserving clients.” housing for the poor, Kent now serves on the
ended up being filed in East Texas and landed The proposed Resolution was defeated by a Board of Directors of the Homeless Persons
in federal judge William Wayne Justice’s court. margin of three to one, but the sentiments it Representation Project (HPRP), a Maryland
The case morphed into major institutional expressed have not been entirely extinguished. non-profit that, besides providing legal services
litigation, receiving national recognition. itself, trains private lawyers, among other
It preceded Ruiz v. Estelle, 503 F. Supp. What happened to the OEO lawyers? things, to work with veterans who have been
1265 (S.D. Tex. 1980), another important Some moved to other cities; many are still unable to obtain benefits to which they are
institutional suit against the Texas Department here. A few became famous or leaders in our entitled, thereby assisting them in getting
of Corrections. Former El Paso District profession. affordable housing. Kent is also the original
Attorney W. Barton Boling was responsible for Hector Uribe, the third Director, became a promoter/creator and now longtime treasurer
defending both cases during his tenure as Chief State Senator. A few years ago he tried acting of the Crowell and Moring Foundation. The
of Mark White’s Law Enforcement Division. and played the rich Mexican in the film No Foundation annually funds at least one Equal
Unfortunately, problems with the juvenile Country for Old Men. Justice Works Fellow and grants to charitable
justice system continue to receive attention. Federico Peña became Mayor of Denver. organizations that focus on education and other
October/November 2014