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Archives for September 2013

Sep 8

Fees For Judicial Appointments Part 2

Transparency is one way to curb the abuses involved in judges' appointments of amicus attorneys, discovery masters and mediators.  However, I cannot tell you easily who, for example, Judge Pratt is appointing in private cases and how much those appointees are being paid because almost no one is following a Supreme Court order that requires reporting of all appointees' fees.  The prior edition of The Mongoose quoted the 1997 Supreme Court order that requires all fees for judicial appointments to be approved in a separate order.  The District Clerk is required to collect data from all such orders and report the fees in a monthly report to the state Office of Court Administration. Click here to see the state-wide report.  However, the spreadsheet is too big and covers the entire state.  I have taken the period September 2012 through June 2013 and created spreadsheets for each of Harris County's family district courts and sorted by bar number, so you can see who is getting reported ... Read More >

Post in: Amicus Attorneys, Attorney's Fees, Judge Problems

Sep 8

Fees For Judicial Appointments Must Be In an Order and Reported – Part 1

Transparency is one way to curb the abuses involved in judges' appointments of amicus attorneys, discovery masters and mediators.  However, I cannot tell you easily who, for example, Judge Pratt is appointing in private cases and how much those appointees are being paid because almost no one is following a Supreme Court order that requires reporting of all appointees' fees. Scandals involving judicial appointments in Harris County courts in the mid-1990's caused the Texas Supreme Court to issue an order that is still in effect but largely ignored.  Click here to see full order.  The 1997 order states in part: Section 1. Every appointment made in a civil case, probate case, or proceeding governed by Titles 1, 2, or 4 of the Family Code, by a regular or assigned judge of any district court, constitutional county court, statutory county court, statutory probate court, court master or court referee of a person to a position for which any type of fee may be paid shall be made by ... Read More >

Post in: Amicus Attorneys, Attorney's Fees, Judge Problems

Sep 8

Any judge in the courthouse can sign your order

You do not need a transfer or an assignment from the Administrative Judge to allow another judge in the courthouse to sign an order for you if the judge of the court where your case is pending is not available (assuming the clerks and the other judge cooperates). Texas Government Code Sec. 79.094 says: Sec. 74.094.  HEARING CASES.  (a)  A district or statutory county court judge may hear and determine a matter pending in any district or statutory county court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter.  The judge may sign a judgment or order in any of the courts regardless of whether the case is transferred.  The judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter.  The authority of this subsection applies to an active, former, or retired judge assigned to a court having jurisdiction as provided by Subchapter C. ... Read More >

Post in: Orders entry nunc pro tunc, Pleadings

Sep 8

New TRCP 91a Allows Quick Dismissal of Wacko Causes of Action That Have “No Basis in Law of Fact”

Family attorneys often deal with causes of action that do not arise under the Family Code.  For example, one spouse might sue the other spouse as part of a divorce for assault or breach of fiduciary duty.  A new Texas Rule of Civil Procedure 91a applies to all cases, including those pending on March 1, 2013, other than cases brought under the Texas Family Code or in inmate litigation.   Under new Rule 91a, a party may move to dismiss a cause of action that has "no basis in law or fact."  A claim has no basis in law if the allegations, taken as true, together with any reasonable inferences, "do not entitle the claimant to relief."  A claim has no basis in fact if "no reasonable person could believe the facts as pleaded."  A motion to dismiss a baseless case under Rule 91a must: state that it is made pursuant to Rule 91a; identify each cause of action to which it is addressed; and specifically state the reasons that the cause of action has no basis in law, fact, or both. A Rule 91a ... Read More >

Post in: Dismissal summary judgment, Pleadings

Sep 8

Judges Cannot Grant Relief Unless It Is Requested in Pleadings or Tried by Consent

No judge or judicial candidate should want to read this headline: "Court of Appeals reverses judge who screwed gay dad."  Sadly, treating gays and lesbians unfairly is currently good politics if you are a Republican worried only about winning a primary in Texas.  Sadder still is what happened to William Flowers in his modification lawsuit in the 309th District Court. I only handled the appeal, but I personally would have counseled a gay father that winning custody in a jury trial in Harris County would be very unlikely, no matter who the judge was.  However, Mr. Flowers asked to switch primary custody of his three children to him.  By agreement, Associate Judge Charlie Prine presided over the trial.  The jury heard the evidence and decided that the mother should retain the right to determine the children's primary residence.  No question was submitted to the jury about changing the geographic residence restriction because neither party's pleadings asked for any such change and not a ... Read More >

Post in: Trial, trial by consent

Sep 8

Judge Denise Pratt Finally Rules

The divorce decree in  Messier v. Messier (No. 2009-45158) awarded the wife "a portion of the benefits, if any, received by [the husband] upon exercise of the following ConocoPhillips Stock option awards, representing 60% of the community portions from [husband's] employment, subject to all related actual tax liabilities and withholdings..."   The husband was not ordered when to exercise his stock options. Two years later, the ex-wife had Bobby Newman file a lawsuit because the ex-husband had not exercised many of his stock options.  Judge Pratt conducted a trial on December 19, 2012.  Judge Pratt ruled that Mr. Newman would be granted almost all of the relief he was asking for (contempt, declaratory judgment, "clarification" that dramatically changed the ex-husband's obligations regarding the stock options, and $77,000.00 in attorney's fees). An entry hearing was set for March 25 and counsel appeared, including Don Fullenweider and Sallee Smyth for the ex-husband.  After waiting ... Read More >

Post in: Crimes in the courtroom, Enforcement, Judge Problems

Sep 8

Another Mandamus Granted Against Judge Denise Pratt

The First Court of Appeals has granted yet another writ of mandamus against Judge Denise Pratt for appointing Donna Detamore as a Discovery Master in a highly unusual custody case and ordering the parties to pay Detamore $10,000 to get started.  Click here to read the opinion.  Steve Lindamood filed for the mandamus and represents the mother in this case.  The child before the court is very disabled and the child's father is totally disabled.  The father's guardian is the child's paternal step-grandfather. Nancy Rommelman represents the guardian/grandfather who is seeking custody of the child.  Click here to read the plea to the jurisdiction in this case which Judge Pratt denied and will likely result in another mandamus action. ... Read More >

Post in: Judge Problems, Mandamus

Sep 8

Could The Democrats Possibly Win Harris County in 2014?

I am a liberal Democrat when it comes to national and state-wide politics.  However, I would be really sick to see some of our wonderful Republican family judges go down in defeat in November 2014 if changing demographics and a well financed, high tech Democratic get-out-the vote effort does what we all know will happen sometime in this decade.  I also do not want to see a spectacularly bad judge like Denise Pratt bring her really good Republican judicial colleagues down with her. Under the headline, "Harris County Republicans in Trouble in 2014?" David Jennings wrote in his Houston Chronicle blog (click here to read the full story):  Then, you have a problem with some gosh awful incumbent judges (who will cost some very good incumbent judges their benches). I, and many of us in the party, will not push a "Vote Straight R" message unless these judges are upset via the primary, which is a very difficult thing to do. The Straight R campaign has been the bedrock of the last ... Read More >

Post in: Politics and elections

Sep 8

A judge who backdates an order intentionally is a criminal

The Texas Penal Code, Sec. 37.10 states in part: Sec. 37.10.  TAMPERING WITH GOVERNMENTAL RECORD.  (a)  A person commits an offense if he:(1)  knowingly makes a false entry in, or false alteration of, a governmental record; A judge who accidentally writes in the wrong date when she signs an order lacks the mens rea to have committed this crime.  However, a judge who intentionally back dates an order she signs by a few months has made a "false entry" and would have committed a Class A Misdemeanor. ... Read More >

Post in: Crimes in the courtroom, Judge Problems, Uncategorized

Sep 8

Judges: Is Threatening Lawyers Who Support a Specific Candidate a Crime?

The Texas Penal Code, Sec. 39.03 states in part: Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. A sitting judge who tells a lawyer that he had better support Ms. XXX for the YYYth Family District Court or "you will never get any more appointments in my court" has grossly breached judicial ethics, but has probably not violated ... Read More >

Post in: Crimes in the courtroom, Judge Problems

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