The Enos Law Firm
17207 Feather Craft Lane, Webster, Texas 77598
(281) 333-3030 Fax: (281) 488-7775
E-mail: greg.enoslaw@gmail.com Web site: www.divorcereality.comPlease forward this e-mail newsletter
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Greetings!
I hope you will visit my booth at the Advanced Family Law Seminar in San Antonio next week and pick up a free "Mongoose" coffee mug.
Attorneys have duties to their individual clients but we also have a duty to protect and improve the judicial system we work in. I hope you will join me in my efforts for reform of our family courts based on ethics, the law, 100% provable facts and fundamental fairness. This effort is bearing fruit as two judges involved in my stories are no longer judges and one Harris County judge is finding that most lawyers are refusing to support her politically or financially. More and more attorneys seem willing to speak out against outrageous judicial misbehavior.
Attorneys can also help our judicial system by taking on pro bono cases involving ridiculous instances of injustice. I pat myself on the back in a story below about a pro bono appeal I handled for an openly gay father who was treated horribly by a smart associate judge who clearly knew better. The fact that Associate Judge Charlie Prine is likely to be elected a family district judge next year did not make it any easier to write that story. The fact that Prine's boss, District Judge Sheri Y. Dean, is my next door neighbor and long-time colleague certainly complicated things. However, there are several important lessons all attorneys and judges can draw from this decision, so I hope you read on.
I do not expect to win every case. I just want an efficient system in which my client gets a fair hearing before a judge who works hard, knows the law, and does not play favorites. I also expect judges to appoint qualified amicus attorneys who zealously look after children (and actually visit the kids in their homes). Is that asking too much? Stay tuned.
Greg Enos (281) 333-3030 greg.enoslaw@gmail.com
The Mongoose is watching!
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Why I Cannot Discuss
Former Judge D***y
The judge who is presiding over former Judge Christopher Dupuy's criminal cases has issued a comprehensive gag order. Click here to read this gag order and understand why I cannot join in on the courthouse gossip about Mr. Dupuy. For those who are curious, here are the cause numbers on the pending cases involving Dupuy, which can be viewed on the Galveston County District Clerk's web site. The following is all public information and is offered without comment in a way that does not violate gag order.
1. Dupuy faces two new felony indictments for aggravated perjury (all involving alleged false testimony about me). Click here to read the Galveston Daily News story about these new indictments. Click here to see the indictment in 13CR2027. Click here to read the indictment in 13CR2028. Click here to read Dupuy's answer he filed to the indictments. 2. Nine prior criminal cases - Consolidated into 13CR1363. Set for trial on December 9, 2013. 3. Removal lawsuit - 13CV0701 - Set for trial in January 27, 2014, Click here to read the second application for mandamus filed by Dupuy in this case with the court of appeals. Click here to read the stay order stopping a hearing on a motion to hold Dupuy in contempt for violating the gag order in that case. The Attorney General is ordered to file a reply brief by August 12, 2013. 4. Mr. Dupuy's child custody case - 09FD0420.
5. Mr. Margarita legal malpractice suit vs. Dupuy - 09CV1183. A motion was filed to hold Dupuy in contempt for not submitting to a deposition as ordered and not paying an earlier $7,500 sanction.
 Flowers v. Flowers:
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 single word of evidence was introduced on the subject. Nonetheless, Judge Prine in his rendition and final order lifted the geographic residence restriction. Prine also changed five parental rights to the father's detriment even though the mother had no pleadings asking for those changes and there was no discussion of changing those rights at trial. Just to make it really tough on the gay father who lived with a man he had married legally in another, less God-fearing state, Prine also enjoined Mr. Flowers from allowing any person not related to the children by blood or adoption to care for any of the children during the father's periods of possession unless the mother approved of the person first. This meant that the father could not leave the children with his "husband," a teenage babysitter, Barbara Bush, the Dalai Lama, a sunday school teacher or even Charlie Prine unless the mother agreed first. Even if the father went straight and married a woman, the new wife could not care for the children without the mother's approval. This broad injunction was not requested by the mother or discussed at trial either. I agreed to represent Mr. Flowers on the appeal at my special "Don Quixote" hourly rate of zero even though I genuinely like that charming rogue Charlie Prine and despite the fact that his boss, Judge Sheri Y. Dean, is my next door neighbor and long-time legal colleague in Clear Lake. It took the 14th Court of Appeals way too long to decide the case, but this all Republican panel of justices at least got it right. Click here to read this opinion, which you probably will need to frequently cite to trial judges who think pleadings are not really needed in a case involving children. My synopsis of this opinion is: 1. A family court cannot grant relief unless there are pleadings asking for the relief or the issue was tried by consent. The Rules of Civil Procedure even apply in family cases involving children. The court of appeals did not have to get to my point of error that a change in the geographic restriction is a jury issue and in a jury trial that question must be submitted to the jury. 2. An issue is not tried by consent if it is never mentioned or discussed at trial. 3. It is error for a court to issue an overly broad injunction that is not requested in pleadings or supported by the evidence. Interestingly, while this appeal was pending, Judge Dean decided to modify the order being appealed to further limit the father's rights and access to his children even though she clearly had lost the plenary power to do so while the appeal was pending, see In re Norris, 371 S.W.3d 546, 554 (Tex. App. - Austin 2012, orig. proceeding)(temporary order signed after trial court's plenary power expired during appeal was void). Judge Dean also held Mr. Flowers in contempt for not paying $817.50 in uninsured medical expenses and sentenced him to 180 days in jail and actually put him in jail. Even the mother's lawyers were horrified since they at most expected him to be placed on probation. I was able to get Mr. Flowers released after a weekend in jail with the cooperation of the very ethical and professional attorneys on the other side (as well as Judge Dean, who felt she had gotten her message across).
Brass Balls Award
Patsy Wicoff wins the first "Brass Balls Award" granted to an attorney who professionally and ethically stands up to judicial misbehavior.
Hamilton v. Hamilton (2006-68864) is a divorce case that has been pending since 2006. Many of the motions and orders in this case are not imaged on the District Clerk's web site. There was a trial and an appeal and a reversal and a remand. Upon the case returning to Judge Pratt's court, the wife's attorneys started in February 2012 trying to get a hearing on temporary orders regarding the two children but never could get a hearing. Other motions were filed by both sides and not heard. Hearings would be started but adjourned and never resumed. Finally, there were over a dozen motions pending and both sides agreed for Associate Judge Newey to hear the motions because Judge Pratt was "unavailable."
The hearings, which both sides had agreed Judge Newey would hear, had been set for about six weeks before the wife brought Bobby Newman in on the case to join her attorney, Michael Childs, as lead counsel. Bobby Newman came into the case the Thursday before the Monday hearings. Childs filed a motion to continue the hearings, which the husband's attorneys opposed. Newman let the attorneys know he objected to Judge Newey hearing the motions and somehow unilaterally got the wife's motion for continuance of the hearings moved to an earlier time before Judge Pratt instead of the date already set with Judge Newey. The amount of interim attorney's fees the wife was requesting went from the $15,000 originally requested by Mr. Childs to $150,000 once Mr. Newman joined the wife's legal team. The husband's attorneys, Patsy Wicoff and Amy Harris, then filed a motion to recuse Judge Pratt. At the hearing that Newman had set before Judge Pratt, the husband's attorneys reminded Judge Pratt that she could not take any action on the case while the recusal motion was pending. Pratt looked at Newman and asked him if that was correct and he confirmed it was, so Pratt did not proceed with the hearing.
Ms. Wicoff subpoened Judge Pratt's court coordinator and clerk to the recusal hearing. Both confirmed the way hearings are usually set and reset and both confirmed the above sequence of events. Mr. Newman was questioned about his political support of Pratt and the fundraising he has done and is doing for her. The husband (himself an experienced civil litigator) testified about why he was concerned that Judge Pratt would not be fair to him. The husband even raised what he had read in the Mongoose and Wifcoff tried to admit a copy of the Mongoose under the commercial publication exception to the hearsay rule, TRE 803(17), but the judge ruled the Mongoose was not a commercial tabulation or listing of the sort that fits that exception (she should have tried to admit the Mongoose as a learned treatise!). The assigned judge took the matter under advisement but denied the motion to recuse Click here to read the motion to recuse. I intend to obtain a transcript of this hearing, even if I have to pay for it myself, so expect to read that in a future edition. The motion to recuse may have been denied, but my prediction is that Judge Pratt will handle this case differently now that someone has stood up to her and called her out for how this case has been handled.
Fees For Judicial Appointments Must Be In an Order and Reported
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 written order.
Section 2. Every application or request for the payment of a fee by such an appointee shall be approved by the court of the judge making the appointment. This approval shall be accomplished by a separate written order.
The Supreme Court order requires the District Clerk to collect all orders for appointments and fees and compile a monthly report that must be available to the public. The Office of Court Administration compiles all of the reports state-wide and posts them on line in an Excel spreadsheet. 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 appointment fees. Click here to see my analysis of reported appointments for Judge Pratt in the 311th District Court. My next newsletter will include a similar analysis for each of the Harris County Family District Courts.
These reports on appointment fees, however, only show fees paid by the county (such as CPS cases) and almost ALL of the lucrative amicus appointments in private cases and most appointed mediations are not being reported. As we all know, one lucrative child custody case can yield a fee for an amicus attorney equal to the fees paid by the county in a hundred CPS cases. A review of the reported fees in Judge Pratt's court for this nine month period shows the following top fee earners on appointments in CPS and other cases where the county paid the fees:
| Alicia Franklin | $51,725.00 | | Claudia Canales | $29,376.00 | | George Clevenger | $29,376.00 | | Gary Polland | $25,325.00 | | Bobbie Young | $22,700.00 | | Katrina Griffith | $17,880.00 | | Ronnie Harrison | $16,205.56 |
Here are three examples of amicus fees in private cases awarded to George Clevenger by Judge Pratt which were not reported to the state:
| Date | Case | Fee Amount (each party pays 50%) | | 3/19/13 |
2011-33344
| $1,500.00 | | 4/16/13 | 2012-22999 | $3,000.00 | | 4/29/13 | 2013-18774 | $1,500.00 |
I am not saying that Mr. Clevenger did not deserve these modest amicus fees. Rather my point is that these fees are examples of the hundreds of fee award orders that were not reported at all and therefore I cannot tell you which lawyers are receiving the big, juicy amicus fees in any family court. It is thus not possible to draw correlations between the attorneys who receive appointment fees and those who support a particular judge with political contributions.
It is hard to even find out who is being appointed amicus because in many cases in Judge Pratt's court, the orders appointing amicus attorneys or awarding amicus fees are not scanned and imaged. So, the only way to find those amicus orders is to review every single file document by document or find out about cases from other attorneys.
In all of the family courts, the fees for amicus attorneys and court appointed mediators in private cases are not being reported. None of the very large fees for court appointed custody evaluators, accountants, special masters and receivers are being reported. All of that violates the Supreme Court order and deprives all of us from knowing who is getting a lot of money in particular courts. We have all seen the Supreme Court's Court Appointment and Fees Report that many mediators file with the clerk after mediations. It would be a simple matter for each court or the local rules to require these forms to be filed by every amicus, ad litem, mediator, receiver, custody evaluator and special master and then the clerks could easily spot the fees to report.
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"Those who have the privilege to know have the duty to act."
-- Albert Einstein
NEWSLETTER INDEX
(click on the story link)
Subpoena a Child to Court?
How do you compel a child to appear in court? You could file a motion asking the court to order a parent or conservator to bring the child to court. In re Z.A.T., 193 S.W.3d 197 (Tex. App. - Waco 2006, pet. denied) suggests that you should subpoena a child since TRCP 176.2(a) relates to a subpoena commanding a "person" to attend trial. The Code of Criminal Procedure Sec. 24.011(a) and the Juvenile Justice Code, Family Code Sec. 53.06(c), have specific provisions for a "subpoena directing a person having custody, care, or control of the child to produce the child in court." The Rules of Civil Procedure do not have any similar provision for getting children to court. The lead opinion in Z.A.T. seems to suggest that you should serve a subpoena on the child. A concurring opinion suggests that if a child has an amicus attorney, the subpoena can be served on the amicus per TRCP 176.5(a).
Thomas Jefferson's Favorite Book
Attorneys who are interested in religion, philosophy and history should read the book The Swerve written by Stephen Greenblatt. If you have never heard of Thomas Jefferson's favorite Roman poet and philosopher, Lucretius, and his amazing view of the world written about 50 years before the birth of Jesus, click here to read my short summary of On the Nature of Things.
2013 Harris County Family Law Directory
The newest edition of the Harris County Family Law Directory is now available for free download at www.divorcereality.com. You can order a bound, color version of the directory for $25 per directory by mailing a check payable to "The Enos Law Firm" to 17207 Feather Craft Lane, Webster, TX 77598. My booth at the Advanced Family Law Seminar will be selling bound directories at the special price of $20, so please stop by our booth!The directory has listings of attorneys, family courts, AG offices, custody evaluators, real estate appraisers, court reporters and much more. This year I included practical and useful legal articles from the 2012 "Ultimate Property Division Seminar" I organized with the judges in Galveston County. 
The Harris County Family Law Directory is also searchable on-line at www.divorcereality.com and you can use our Internet forms to send us corrections or updates to your listing.  Click here to go directly to my legal directories page.
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 movant must file the motion within 60 days after the first pleading that contains the cause of action at issue is served on the movant and at least 21 days before the hearing on the motion. Each party is entitled to 14 days' notice of the hearing, although the court may decide the motion on the written submissions. The response is due seven days before the hearing. If the respondent amends the cause of action at least three days before the hearing, the movant may withdraw or amend the motion.
The court must rule on the motion within 45 days after its filing/ The court may not consider any evidence in deciding the motion.
The prevailing party on a Rule 91a motion is entitled to an award of fees and costs incurred on the challenged cause of action, except in litigation by or against the government.
Any Judge in the Building 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.
Upcoming Campaign Events
I am going to try to post notices for upcoming campaign functions for all races in Galveston County and family court races in Harris County. Candidates: please send me your notices and I will help get the word out and please stop holding secret exclusive events for just a few big fat cats that us little people are not invited to!
Judy Warne Re-election Kickoff Tuesday, August 13 from 5:30 - 8 p.m.
La Griglia, 2002 West Gray
Fundraiser for Judge Sheri Y. Dean
Thursday, August 15 from 6:30 PM - 8:30 PM
Mo's the Place For Steaks
1801 Post Oak Boulevard
Maximum Guideline Child Support Set to Increase September 1
On September 1, 2013, the cap on maximum monthly net resources used to calculate guideline child support in Texas will rise from $7,500 per month to $8,550 per month. This means that the maximum guideline child support amount will go from $1,500 per month for one child to $1,710; from $1,875 for two children to $2,137.50; and from $2,250 for three children to $2,565 (assuming the obligor has no other children he or she is obligated to support). Texas Family Code Section 154.125 requires the Office of the Attorney General to adjust the maximum amount of monthly net resources used to calculate guideline child support every six years based on increases in the consumer price index.
Witnesses and Parties Should Be Respectfully Addressed in Court
In court, attorneys should properly refer to the parties and witnesses as "Mr. Smith " or "Dr. Green" or "Ms. Olivares." Lawyers should not refer even to their own clients by just their first names in court. Attorneys often seem to forget that formality and decorum and politeness (not to mention civility) are both expected in court and necessary to earn the proper respect court proceedings require. Avoiding use of first names for witnesses and parties was also once a matter of basic civil rights.
Hamilton v. Alabama, 376 U.S. 650 (1964) is also remembered as the "Miss Mary" case. At the time, black witnesses and defendants in courts in the South were called by just their first names, unlike white people who were referred to as Mr. or Mrs. or Miss. When Mary Hamilton was arrested at a civil rights protest in Alabama in 1963, the prosecutor referred to her as just 'Mary' and she refused to answer his questions until he addressed her with the same level of respect that was given to white people. For her impudence, she was charged with contempt, fined $50, and jailed. Miss Hamilton was allowed out on bond after five days but she refused to pay the fine and appealed her case to the Alabama Supreme Court, which rejected her appeal. The United States Supreme Court in 1964 granted certiorari and summarily reversed the trial court without oral arguments. So, thanks to Mary Hamilton (who died in 2002), now everyone has the right to be addressed respectfully in court by their title and last name.
The opinion of the Alabama Supreme Court in
Ex parte Hamilton, 156 So.2d 926 (Ala. 1963) sets forth what happened when this brave young woman appeared in the trial court:
Q: What is your name, please
A: Miss Mary Hamilton.
Q: Mary, I believe-you were arrested-who were you arrested by
A: My name is Miss Hamilton. Please address me correctly.
Q: Who were you arrested by, Mary
A: I will not answer a question--
BY ATTORNEY AMAKER: The witness's name is Miss Hamilton.
A: -your question until I am addressed correctly.
THE COURT: Answer the question.
THE WITNESS: I will not answer them unless I am addressed correctly.
THE COURT: You are in contempt of court--
ATTORNEY CONLEY: Your Honor-your Honor--
THE COURT: You are in contempt of this court, and you are sentenced to five days in jail and a fifty dollar fine.
A Poem for the Attorney Who Will Not Return Calls
I sometimes deal with lawyers who will simply not talk to me about a case. My calls, faxes and e-mails are ignored. In extreme cases, I have composed a poem and sent it to the AWOL lawyer and every time the attorney immediately called me back. Poetry works! Here is an example:
I've called four times and faxed you twice.
Each time I was polite, professional and nice.
But each time my communication was met with stone silence
and now I'm worried you are sick, lost or a victim of violence.
I am so very desperate to talk to you about the O'Hara case,
that if you call me back I will send flowers and even kiss your face.
So, if you breathe, pick up the phone and call my office or cell.
But, if you have passed, let me know and I will send my faxes to Hell.
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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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