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!
Judge John Grady in Galveston likes to ask me,"Who is watching the Mongoose?" That is a really good question. Over a thousand lawyers and judges read each issue of my newsletter and I get to criticize and complain about judges without anyone really having a chance to reply to or refute what I say. Ethics rules prevent judges from commenting on their rulings in individual cases and common sense tells most of them it is not a good idea to e-mail or write me with their side of the story. A few lawyers, like Bobby Newman, e-mail me or call me with their counter views on my stories.
I am very aware that judges and lawyers can be very embarrassed and upset by what I write and sometimes this newsletter can actually effect people's careers. I take it as a very serious obligation and I try really hard to be fair and get facts right. I do screw up. In my last issue I misspelled Charley Prine's first name as 'Charlie" ("ey" and not "ie").
Here is how I try to keep things fair and avoid being a journalistic bully:
1. I do not write about close judgment calls that judges make. I write about judicial rulings that are so extreme and ridiculous that almost everyone can agree the judge was way out of line.
2. I take positions that frankly almost all other family lawyers agree with. I am not on the cutting edge of the legal conscience here. I am just putting in writing what most lawyers are thinking and saying privately.
3. I really do try to check my facts by looking at case files and talking to participants. I am going to try much harder to call or e-mail the attorneys on both sides of a case before I write about specific cases.
4. Almost all of my newsletters are reviewed by two very smart, ethical and common sense women who are not bashful about telling me to change or delete what I have written.
5. I usually only quote documents and I never quote or attribute opinions to lawyers without their permission. I receive horror stories from lawyers and increasingly the public every day. I do not name my sources but I do my best to verify what I am told before I write about it. Facts rather than rumors and gossip are what I am writing about.
Please do not hesitate to e-mail me or fax me with corrections to my stories or your opinions that disagree with my positions. As long as what you write is concise and does not defame anyone but me, I will print it. However, I feel that if I am willing to put my name on this newsletter, that anyone who wants to disagree with me should allow his or her name to be published and not do so anonymously.
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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Potential Donors Avoid Pratt's August 29 Fundraiser
Most family lawyers are shunning Judge Denise Pratt's requests for political donations. One high dollar attorney stunned one of the few lawyers even willing to solicit contributions for Pratt by refusing to give a cent and saying,"I am a whore but I am not that big of a whore...she needs to go." A select few attorneys received a "By Invitation Only" invite to a $500 a plate dinner for Judge Pratt. I somehow was omitted from the mailing list but a bunch of attorneys promptly e-mailed me their invitations. Word is that almost no lawyers have RSVP'd for this exclusive event. I plan to be at the Wedge Restaurant on August 29 with a photographer to see who attends.
 Newman! I am not Really Picking on Bobby
If I were a multi-millionaire (unlikely) getting a divorce (never again), I might well hire Bobby Newman because he is a very good attorney. I would hire Newman because of his skills and not his political stroke. The problem with Newman's success is not Newman -- it is how other lawyers and especially a few judges perceive his success and stroke. The widely held view that Newman can get anything he wants in some courts is an exaggeration and something of an insult to Newman's skills. On the other hand, that reputation is almost certainly good for Bobby's new business.
I am not picking on Newman even though his name appears in most of the stories I write about Judge Pratt. I am trying to motivate judges to do what is right with this newsletter. Super talented and successful lawyers are beyond my reform efforts.
All lawyers, from the big shot high dollar types to those who represent regular folks without much money, should: (1) only ask for relief that the law says our clients are entitled to, and (2) be willing to tell a judge when he or she is going too far in granting relief, even if it benefits our clients or our own pocket books.
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 two campaigns - without it, we're going to lose a few points and certainly increase the down ballot undervotes. Imagine a Harris County judicial system 75% in the control of Democrats because that is what it will look like after 2014.
Consider these numbers: in 2010, a total of 756,769 votes were cast in the race for the 311th District Court. Denise Pratt got 414,817 votes in the general election (54.81%). Three years later, in June 2013, over 400,000 people showed up for a Gay Pride in Festival in Houston. Harris County is even more Hispanic and less Anglo than it was just four years ago.
The Texas Observer in May 2013 ran a story about how Democratic efforts in Texas in 2014 will be focused on Harris County.
Click here to read that analysis. My learned colleague Jared Woodfill's worst nightmares (when he can get any sleep with that new baby) involve something called the "Colorado Model" and the millions of dollars that will be spent in the next 18 months by Battleground Texas in Harris County. Click here to read a story from The American Spectator that explains all this. Jared, the chair of the Harris County Republican Party (when he is not living on the 7th floor of the Family Law Center) can give a passionate analysis why 2010 was actually such a great election for Republicans and how Attorney General Abbott at the top of the ticket against Senator Wendy Davis will only boost GOP turnout in 2014. Woodfill is a great guy and a very smart politician who knows his stuff, but as GOP chair he has to predict a Republican victory. Jared is, of course, reluctant to discuss with a shady character like me exactly what the two political parties are doing now to lay the groundwork for a victory in 2014. Click here to read about one of several expensive experiments done by Democrats in Harris County in 2012 (funded by out-of-state donors) to increase Hispanic voter turnout. The methods that proved effective in those limited experiments will be used county-wide in 2014. My extremely Republican neighborhood in Clear Lake has already been canvassed at least three times by "public interest" groups identifying voters who are really interested in the environment, social security and modest immigration reform. Someone is spending a lot of money to have these intelligent, articulate young people go door to door collecting information on people who are very interested in certain issues that seem more aligned with the Democratic party. This is what the Democrats did in Virginia leading up to the 2010 election and their massive database was able to peel off enough seemingly conservative voters to give Obama a victory in that state that has historically voted for Republicans for President. I am not saying a Democratic judicial sweep of Harris County will happen in 2014 and I frankly think it is unlikely, but it could and it almost certainly will happen by 2018. Judge 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 for over an hour, the attorneys were told by the court coordinator that Judge Pratt would not come out into the courtroom if they were there. The lawyers were asked to leave their various motions and responses for the judge to read later. An attorney asked the coordinator if that meant that all of the other people in the courtroom waiting for a hearing would be denied a hearing if the lawyers in the Messier case refused to leave the courtroom. Mr. Jeffcoat, the coordinator at the time, predicted that if they stayed that Judge Pratt would simply not leave her chambers. So, the lawyers left their pleadings with Mr. Jeffcoat and left. They then waited and waited for a ruling. Ms. Smyth e-mailed the coordinator several times and he assured her that she would be notified when a ruling was made.
On June 5, Mr. Fullenweider received a notice that an order had been signed on March 25, the day of the entry hearing. That was odd since Mr. Jeffcoat had e-mailed Ms. Smyth on April 3 and said that he had not received any ruling from Judge Pratt and that he would let the attorneys know when a ruling was made.
The order as submitted by Mr. Newman is signed by Judge Pratt and is dated in her handwriting "March 25, 2013." By the time the ex-husband's attorneys received the notice from the District Clerk that an order had been signed, it was in theory too late to file a notice of appeal. The new order as submitted by Newman dramatically changed the husband's obligations and is clearly a substantive change from the divorce decree. The order submitted by Newman only awarded him $59,198.75 in attorneys fees (instead of the $77,000 Pratt had granted) but also orders the ex-husband to pay the ex-wife $25,000.00 for her appellate attorney fees within one day of posting notice of appeal of this order. Interestingly, the order Newman submitted granted his client less relief than what Pratt had ruled. For example, the ex-husband was not held in contempt as Pratt had ruled (probably since the decree did not order him to exercise any of the options). Newman's order did find that the ex-husband had breached his fiduciary duty and ordered him to exercise each stock option as soon as its price reached the strike price if the ex-wife requested him to do so. The ex-husband was prospectively "fined" $5,000 for each day he fails to exercise the stock options as ordered in the future.
Ms. Smyth filed a motion under TRCP 306a and TRAP 4.2 to extend the deadline to appeal because of late notice that the order had been entered. The affidavits attached to that motion tell the very odd story summarized above. Newman agreed to that motion and now the ex-husband is appealing this order.
It seems very likely that Judge Pratt did not sign this order on March 25 as she wrote when she signed the order. Her own coordinator was telling attorneys weeks later that no ruling had been made. The District Clerk did not get a signed order until early June when it sent out the required notice. On May 22, this newsletter ran a little article under the headline "Judge Pratt Ordered To Do Her Job." The first sentence of that article said,"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!" Lawyers started noticing after that article ran that Judge Pratt then began making rulings in cases she had heard months before. Some lawyers have reported that the orders they received were dated weeks or even months before the orders appeared in the court files.
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. I cannot say what Judge Pratt intended to do in this situation.
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 Sec. 39.03 because the "mistreatment" has not occurred but only been threatened. If a judge makes such a threat and then carries it out and stops appointing the lawyer in his or her court, it could well be a crime. If there is any attorney out there with proof that any judge is making such threats, please bring the proof to me and I will personally go to the District Attorney to see if a crime has been committed.
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 appointment fees. The last Mongoose analyzed Judge Pratt's reported appointments. This issue analyzes the appointments of three more family district courts and I will publish numbers for the other courts in my next issue.
These reports on appointment fees, however, mostly 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 the courts of Judges Dean, Lombardino and Moore show the following: Judge Lombardino during this nine month period approved the following fees for the top seven highest paid judicial appointees in his court (click here to see the appointment fee report for the 308th District Court - almost all of which was for CPS cases except for Mr. Woodfill's large private amicus cases that were reported):
| Jared Woodfill | $77,029.70 (included several private cases) | | Lacey West | $31,225.00 | | Bobbie Young | $24,100.00 | | Susan Solis | $19,350.00 | | Theodore Trigg | $18,175.00 | | Angela Phea | $16,425.00 | | George Clevenger | $14,770.00 |
Judge Sheri Y. Dean during this same nine month period approved the following fees for the top five highest paid judicial appointees in her court ( click here to see the appointment fee report for the 309th District Court - almost all of which was for CPS cases): | Susan Solis | $54,175.00 | | Claudia Canales | $48,691.50 | | Laura Arteaga | $45,725.00 | | Bobbie Young | $30,737.00 | | Chung Yuan Lee | $11,024.00 |
Judge Roy Moore in the nine month period approved the following fees for the eight highest paid judicial appointees in his court ( click here to see the appointment report for the 245th District Court - almost all of which was for CPS cases except for Bavousett's mediations): Bobbie Young
| $46,125.00
| Steve Bavousett
| $25,400.00 (all mediations)
| Patrick Upton
| $18,550.00
| Ronnie Harrison
| $15,339.25
| Eric McFerren
| $14,850.00
| Donna Everson
| $12,675.00
| Claudia Canales
| $12,125.00
| George Clevenger
| $11,375.00
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In all of the family courts, the fees for amicus attorneys and most 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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NEWSLETTER INDEX
(click on the story link)
Another Mandamus Granted Against Judge 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.
2013 Advanced Family Law Seminar Was Way Too Fun!
Yes... I am clearly bug ass crazy to publish this newsletter and ruffle powerful judicial feathers like I do. The only crazier thing to do would be to spend few thousand dollars and be a vendor with a booth at the Advanced Family Law Seminar in San Antonio. That is of course exactly what I did and it was a great hit with attorneys and a lot of fun. A young employee and two friends of my daughter worked as Mongoose Girls passing out free Mongoose coffee mugs, printed copies of my last newsletter and handouts on legal topics.
Judge Charley Prine spells his first name "EY" and not "IE!"
Charley (not "Charlie") Prine was a good sport and stopped by the Mongoose booth on the very first day to pose for a photo and get an autographed Mongoose coffee mug. His request started a trend and before I left San Antonio on Wednesday, we had given out 800 autographed coffee mugs. ALL of the elected family court judges from Harris County stopped by to visit (with two exceptions) as did most of the AJ's. Lawyers from other cities were intrigued by my reform efforts and it is apparent that I could open Mongoose franchises in many other counties in Texas.
I was surprised to receive an award at the seminar for the Best CLE Article of the Year. I shared this honor with Joe Indelicato for a paper we wrote for our presentation at Advanced Family Law last year in Houston.
A.G. Abbott Once Believed In Lawsuits for Injuries
The New York Times ran a very interesting and highly ironic story about how our tort reform loving Attorney General, Greg Abbott, once filed a lawsuit against some divorce lawyer named Roy W. Moore (the father of our current Judge Moore) because his oak tree fell on Abbott as he jogged past and paralyzed him.
Everyone's Daughter Should Get Such A Sweet Deal If Arrested for Drug Possession
I really like the job Galveston County District Clerk John Kinard is doing and I can certainly feel for him as father and a "straight arrow" public official after the Galveston News ran a lengthy story about his 28 year old daughter's arrest for a small amount of cocaine. I am way too close to this story since my son-in-law is the officer who made the arrest and my good friend, Greg Russell, was the defense attorney. District Attorney Jack Roady is embarrassed because he appointed Sam Finegan as a special prosecutor to avoid the appearance of impropriety and yet, that is exactly what he got. A lot of criminal defense attorneys are mad because they feel Roady threw Finegan "under the bus" even as they wonder why their clients do not get the same sweet deal.
The video from the officer's car clearly shows the burnt out license plate light that lead to the stop. The passenger allegedly had pot and a drug pipe in his lap. Ms. Kinard, the driver, when asked what was in the bag she was trying to hide in the car, ad mitted it was cocaine after being very clearly told about her right to remain silent. I am so very proud of my son-in-law every day, but if you want to see him in action, the video of this arrest is on YouTube (click here to see the video).
 I am of course also impressed with the deal my friend Greg Russell was able to win for his client in this case.
Mr. Finegan never presented the case to the grand jury and the defendant never got a nano-second of probation. She was allowed to do 14 hours of public service, a drug education class and drug testing and counseling. Finegan says he did not know that his own daughters were Facebook friends with the defendant and had at one time socialized with her.
No matter what quotes the participants give the media, those of us who work at the courthouse all know that these kind of deals are not given the vast majority of young men and women caught with cocaine. That is what stinks about this situation.
The Galveston News editorial presented the question of fairness in ways a good liberal like me can totally appreciate:
Does anyone still believe that society is better served by putting people in similar circumstances on trial on felony charges - charges that could lead to prison or at least to a life under the cloud of a criminal record? That terrible rhetorical question, of course, is the problem. In Texas, we still do overwhelming damage to the lives of too many people who are accused of first-time offenses. That's the way the system works most of the time in Texas.
What happened in this case should not happen just to the daughter of a good public servant and prominent man but to the sons and daughters of all people.
The problem for Mr. Kinard and Mr. Roady, is that most Republican voters will not share those liberal sentiments. They will be angry (like the law enforcement community is) that Ms. Kinard did not get jail time or at least probation.
Again, none of this should reflect poorly on John Kinard, but I am afraid it will. John Kinard is a fine public servant who did nothing wrong and is not responsible for his adult daughter's actions or for how bad the deal she got looks to the rest of us.
I have written to Mr. Roady asking him for information on all cases in which a special prosecutor was appointed in the last three years, including the fees paid and the cause numbers so that I can see if any other sweet deals were made for those who are connected to elected officials.
Click here to read the Galveston News story. Click here to read the Galveston News editorial. It is a pain, but I do urge everyone to subscribe to the Internet edition of the Galveston Daily News.
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!
Monday Night Football with Judge Sheri Dean
Monday, September 9 from 7 pm - final whistle
Wolfie's Sports Bar and Restaurant
463 Bay Area Blvd., Webster (Clear Lake)
Julia Maldonado for 246th District Court Thursday, September 12 from 5:30 - 7:30 pm
Gloria's Latin Cuisine
2616 Louisiana, Houston
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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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