The Enos Law Firm
17207 Feather Craft Lane, Webster, Texas 77598
(281) 333-3030 Fax: (281) 488-7775
E-mail: greg@enoslaw.com Web site: www.divorcereality.comPlease forward this e-mail newsletter
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Greetings!
It is both a good day and a pathetically sad day for our judicial system. Judge Dupuy has been indicted on two felony and six misdemeanor counts, arrested and booked. Dupuy was also hit with a civil removal lawsuit powered by the Texas Attorney General. The good news is that the system actually works (as long as you do not include the worthless Commission on Judicial Conduct as part of the system). The bad news is that our system of electing judges that is dominated by straight ticket voting selected Dupuy in the first place and that he then proceeded to so gloriously screw such a golden chance.
The 99% of lawyers who gossiped and whined but never took action need to personally thank those few who risked a lot to stand up to Dupuy: Greg Hughes, Lori Laird, Tad Nelson, Suzanne Schwab-Radcliffe, Greg Russell, Jack Ewing and Cynthia Tracey. Judges Criss and Yarbrough did what they could. I could not have been more proud of how Judges Roberts and Grady took what corrective actions were available and reminded us each day of what dignified, caring, law abiding judges are like. County Judge Mark Henry is the elected official who has done the most behind the scenes to fix the "Dupuy problem" and he certainly deserves a lot of credit.
Now here is the truly sad and slightly scary angle to this story: everyone named above has been told over and over by many folks that we are in danger now that Dupuy is losing everything. A lawyer at a fundraiser last week loudly predicted I would be shot within the month. My office has increased security, several of my employees and my fianc� are now armed and we have all stopped working after hours at my office. Other judges became so concerned about Dupuy that they insisted that an armed bailiff attend judges' meetings. Dupuy's former fianc� has signed an affidavit accusing him of planning to kill his ex-wife. That ex-fiance testified to the grand jury and the ex-wife has filed for a protective order alleging that Dupuy poses a threat of violence to his ex-wife and children and is a flight risk. The application for protective order filed today against Dupuy in Cause No. 12FD1807 states in part, "The acts of abuse committed by Respondent that constitute family violence were planning the murder of the children's mother and planning to flee the country."
I have, for example, criticized Judge Hellums' policies but I was never worried she would jump out of a bush and club me with an empty whiskey bottle. This situation with Dupuy is something else indeed. I have decided to take sensible precautions. But, fear is what keeps tyrants in power and this guy deserves our pity, not our fear.
Greg Enos (281) 333-3030 greg@enoslaw.com
The Mongoose is watching!
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Not In My House!
Judge Dupuy Indicted, and Arrested, Civil Removal Lawsuit Filed
Galveston County Court Judge Christopher Dupuy has been indicted for felony counts of official oppression, retaliation and abuse of official capacity arising out of his actions toward attorneys Lori Laird, Suzanne Radcliffe and me. Dupuy has attacked attorneys who stood up to him by holding us in contempt and disqualifying us from cases without pleadings, notice or hearing. Two weeks ago, Dupuy sua sponte sanctioned me $25,000 for criticizing him and he has tried to hold me in contempt for daring to file a motion to recuse him. He did the same and actually worse to Lori Laird and Suzanne Schwab-Radcliffe.
Dupuy was arrested at the courthouse, received his magistrate warnings and was booked today. He will probably be released because his bonds are very low.
Here is a summary of the eight charges against Dupuy:
13CR1363 - Retaliation against Lori Laird
13CR1364 - Official oppression and abuse of official capacity against me.
13CR1365 - Misuse of government property for using his county computer and fax to help his fiance in her custody case in which I represent the father of the child. This is the original criminal complaint I filed with the D.A. in December 2012.
13CR1366 - Official oppression against Lori Laird
13CR1367 - Official oppression against Suzanne Schwab-Radcliffe
13CR1368 - Abuse of official capacity involving Lori Laird
13CR1369 - Abuse of official capacity involving Lori Laird
13CR1370 - Abuse of official capacity involving me.
A civil removal lawsuit was also filed today with attorney Greg Hughes as the "relator" on behalf of the State of Texas. The lawsuit was prepared by the Texas Attorney General and is largely based on the lawsuit I drafted and provided the AG last month. The case is filed in Cause No. 13CV0701. A civil removal suit against a county official is a very unusual case. A judge first has to review the petition before the District Clerk can even docket the case. The respondent has only five days to answer the citation. The Galveston County District Attorney recused himself and, as pre-planned, the Texas Attorney General was appointed as attorney pro-tem. The AG controls the case and Greg Hughes' role as plaintiff is basically over. A visiting judge from another county will conduct a hearing on June 7 to determine if Dupuy should be temporarily removed from office while the removal suit is pending.
I will send out a newsletter before the end of this week that has links to all of the pertinent documents.
Here are my predictions and questions:
- Dupuy will be removed. A temporary replacement judge will be named. That judge will get a longer appointment (through December 2014) once Dupuy resigns or is finally removed.
- Once he is out on bond, Dupuy could show up for work until there is an order removing him from office. In theory, the piece of crap Commission on Judicial Conduct could file for his immediate removal based on the indictments, but do not expect any such decisive action to protect the public from the "Protect Judges At Any Cost Commission."
- Dupuy will likely be suspended without pay in the civil removal lawsuit. There will be tremendous pressure for him to make a deal that involves his permanent resignation and a resolution of the criminal charges.
- Dupuy's child custody case will definitely heat up and is not likely to go well for him. Judge Hardin from Brazoria County is assigned to that case and he is in the process of selecting an amicus attorney from Brazoria County.
- A few questions need to be asked: Why does it appear Dupuy was given special consideration that other accused felons do not receive? Why are his bonds so low given the allegation of planned murder and fleeing the country? Why don't the conditions of his bonds require him to stay away from me, Lori and Suzanne (his victims)?
- How much do those of us who stood up to Dupuy need to worry for our own safety? Is it coincidence that this judge has, in just the last few months, dated two women my little law firm had custody cases against? Dupuy sua sponte fined me $25,000 two weeks ago largely for criticizing him in this newsletter without a hearing or evidence. My law firm's motto is "Helping families through tough times." How would you interpret this post from Judge Dupuy on his court's Facebook site from last week:
I have turned down the offer of a bullet proof vest but I am watching a lot more reruns of "Kung Fu Panda" to sharpen my self defense skills.
Just as a sad reminder, this is the public letter I wrote to Judge Dupuy in early January when this newsletter first called for his removal:
Dear Chris:
It hurts me to think you are going to read this just like it hurts me to feel compelled to write this because of your actions. Please do not come shoot me or hurt yourself because of this newsletter. Please just focus on the job you were elected to do and just stop issuing crazy orders and insane e-mails about your fellow elected officials. Start recusing yourself as soon as anyone asks you to and stop holding lawyers and your fellow judges in contempt and please, stop drafting pleadings and freedom of information request letters for your new girlfriend and do not fax them to me from the courthouse. If you cannot control yourself (and it may well be too late), you are going to lose your bench, your law license and custody of your kids. This is one time when you really should listen to me. I am sorry it has come to this because I truly tried to help you. My goal was always and simply to see you do a good job.
Greg
Important New Case on Waste in Divorce Cases is a Game Changer
A recent decision from the First Court of Appeals out of Judge Hellums' court (won by Michael Childs) provides a new twist to claims of waste or constructive fraud. In Puntarelli v. Peterson, No. 01-11-01120-CV (Tex. App. - Houston [1st Dist.] Feb. 14, 2013), the wife asked the age old question "where did all of the money he earned go?" The wife was awarded a $196,000 judgment for wasting community funds because the husband could not account for how he spent his significant income during the five years this informal marriage/divorce case was pending. The important message from this case that should prompt almost all non-monied spouses to allege constructive fraud is this - the wife did not have to prove any specific improper transfers of community funds. The wife merely had to show that the husband's expenses were much less than his income and then the burden shifted to the husband to show where the money went. Proving how one spent money years ago is often not easy, but failure to do so can result in a large judgment, as happened here. Of course, the husband did not help himself by failing to disclose his primary bank account in his sworn inventory or by failing to support the common law spouse during the pendency of the case. Click here to download this case.
The Court of Appeals stated (citations omitted):
"A fiduciary duty exists between a husband and a wife as to the community property controlled by each spouse." A presumption of "constructive fraud, " i.e., waste, arises when one spouse disposes of the other spouse's interest in community property without the other's knowledge or consent.
No "dishonesty of purpose of intent to deceive" must be established; such proof of subjective intent is "only required for actual fraud on the community, as opposed to constructive fraud on the community."
Once the presumption arises, the burden of proof then shifts to the disposing spouse to prove the fairness of the disposition of the other spouse's one-half community ownership." The three primary factors for determining the fairness of the dispositions are: (1) the size of the property disposed of in relation to the total size of the community estate; (2) the adequacy of the estate remaining to support the other spouse after the disposition; and (3) the relationship of the parties involved in the transaction or, in the case of a gift, of the donor to the donee. A claim for the improper depletion of the community estate may be resolved by the trial court with an unequal division of the community estate, or a money judgment in order to achieve an equitable division of the estate. . . . . While waste claims often are premised on specific transfers or gifts of community property to a third party, a waste judgment can be sustained by evidence of community funds unaccounted for by the spouse in control of those funds.
. . . . Because we have rejected Puntarelli's argument that Peterson needed to identify specific transfers of community property (rather than indentifying unaccounted-for community funds in Puntarelli's sole control) to shift the burden to Puntarelli to show the fairness of his use of those funds in his control, and because Puntarelli does not otherwise challenge the trial court's waste judgment or argue that he established his depletion of community assets was fair to Peterson, we hold that the trial court's waste judgment was within its discretion.
The Texas Constitution Has Two Guarantees to the Right to a Jury Trial
I recently argued to Judge David Farr that the amount of reimbursement due the community estate is not a jury question because reimbursement is once again an equitable remedy and historically, juries were not used in courts of equity. Judge Farr went with the Pattern Jury Charge book but then the parties stipulated on the amount. It turns out my argument was wrong because the Texas Constitution contains two provisions which guarantee the right to trial by jury (at least in district courts).
Taylor v. Taylor, 63 S.W.3d 93, 99 (Tex. App. - Waco 2001, no pet.) provides this explanation:
Article I, section 15 is a part of our Bill of Rights. See TEX. CONST. art. I, � 15. It provides in pertinent part:
The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.
TEX. CONST. art. I, � 15. Article I, section 15 guarantees the right of trial by jury for those causes of action or analogous causes of action for which a jury trial was available when the 1876 Constitution was adopted. A brief review of prior decisions reflects that a jury trial could be had for divorce cases before the 1876 Constitution was adopted. Accordingly, a party to a divorce proceeding has a constitutional right to a jury trial under article I, section 15.
Article V of the Texas Constitution governs the judiciary. See TEX. CONST. art. V. Section 10 provides:
In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.
Our Supreme Court has defined the term "cause" to include "any legal process which a party institutes to obtain his demand or by which he seeks his right." Because a divorce proceeding involves disputes over property rights and frequently the custody and support of children, we hold that it is a "cause" for which a party has a constitutional right to a jury trial under article V, section 10.
(citations omitted).
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"I have fancied myself a rebel, but at every critical moment of my life, I have been exactly the child my parents raised."
~Robert Brault
Patricia Grady Announces For The 212th District Court
Attorney Patricia Grady has announced that she will seek the Republican nomination for the 212th District Court of Galveston County. Judge Susan Criss has said she will not seek re-election. Patricia Grady has long been active in local GOP politics and is an attorney well known in our county. She recently worked for County Judge Mark Henry and is married to County Court No. 1 Judge John Grady. Mrs. Grady has to immediately be considered the front runner in this race.
Judge Pratt Ordered To Do Her Job The First Court of Appeals conditionally granted a writ of mandamus directing Judge Denise Pratt to get off her kiester and issue a ruling in an enforcement case she heard in June 2012! Click here to download this opinion, which involves just one example of many cases in which Judge Pratt has not ruled, signed an order or otherwise done the job she was elected to do.
A Quote to Give a Judge Who Feels Resolving a Case Quickly Is More Important Than a Fair Trial
The Supreme Court of Texas has stated: Although a goal of our system is to resolve lawsuits with "great expedition and dispatch and at the least expense," the supreme objective of the courts is "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." This means that "convenience and economy must yield to a paramount concern for a fair and impartial trial." And basic to the right to a fair trial--indeed, basic to the very essence of the adversarial process--is that each party have the opportunity to adequately and vigorously present any material claims and defenses.
Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 437 (Tex.2000)(citations omitted). 7th Floor Problems? File For a Mandamus If a Judge Refuses to Sign an Order Or Set a Hearing
The Houston First Court of Appeals granted a writ of mandamus against a trial judge who refused to set a civil case for trial in case of In re Harrell, No. 01-11-00760-CV (Tex. App. - Houston [1st Dist.] 1/26/2013) (mem. op.)(orig. proc.). The Court of Appeals stated:
A court of appeals may not prescribe the manner in which a trial court exercises its discretion, but it may, by mandamus, require a trial court to exercise its discretion in some manner. A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to entertain and rule on motions pending before it. A trial court is required to consider and rule upon a motion within a reasonable time. If a motion is properly filed and pending before a trial court, the act of considering and ruling upon that motion is ministerial, and mandamus may issue to compel the trial court to act.
(citations omitted).
When Does An Inmate Have The Right To Participate In Trial?
At some point, we all handle cases where the opposing party is incarcerated and pro se. The recent case of Camp v. Camp, No. 07-11-00282-CV (Tex. App. - Amarillo 8/3/2012, no. pet.)(mem. op.) summarizes the law on when the inmate is entitled to be present at trial. Click here to read this opinion. The Texas Supreme Court in the case of In re Z.L.T., 124 S.W.3d 163, 165-6 (Tex. 2003) also noted the factors courts should consider in making arrangements for the inmate to be brought to court or to participate in some alternate fashion (by telephone, deposition or even affidavit): Following the Seventh Circuit's decision in Stone v. Morris, 546 F.2d 730, 735-36 (1976), Texas courts of appeals have recognized a variety of factors that trial courts should consider when deciding whether to grant an inmate's request for a bench warrant. These factors include the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's claims are substantial; whether the matter's resolution can reasonably be delayed until the prisoner's release; whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition,telephone, or some other means; whether the prisoner's presence is important in judging his demeanor and credibility; whether the trial is to the court or a jury; and the prisoner's probability of success on the merits. 
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Attorney Greg Enos has been through his own divorce and child custody battle (he won) and understands what his clients are going through. Enos graduated from the University of Texas Law School and was a very successful personal injury attorney in Texas City before he decided his true calling was to help families in divorce and child custody cases. Greg Enos is active in politics and in Clear Lake area charities. He has served as President of the Bay Area Bar Association and President of the Board of Interfaith Caring Ministries.
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Attorney Greg Enos
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