The Enos Law Firm
17207 Feather Craft Lane, Webster, Texas 77598
(281) 333-3030 Fax: (281) 488-7775
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Click here for an archive of past issues of The Mongoose.
The mystery about which Associate Judge applicant had sex on a picnic table at a county Christmas party arises from Galveston County. See my side bar story about embarrassing internal e-mails included in filings with the Court of Appeals in the battle between elected judges and county commissioners.
A far more reputable group of new Associate Judges for Harris County family courts is introduced in my story below.
The worthless Commission on Ignoring Judicial Misconduct
finally got around to issuing a public reprimand of former Judge Christopher Dupuy over a year
after he resigned and plead guilty to misuse of government property (the criminal charge I initially filed) and perjury involving me. Click here
to read a Galveston Daily News
story about this harsh public scolding which must mean so much to Dupuy now. The Commission did nothing to help us when Dupuy was in power attacking his fellow judges or trying to put lawyers like me or Lori Laird in jail for standing up to him. The Commission did hold a secret hearing a few months before he was indicted, but none of the lawyers opposing Dupuy were informed of the hearing or invited to give testimony. I am applying right now to Governor-Elect Abbott to appoint me to that commission so that I can make the commission actually care about unethical judges who do illegal things.
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.
Why Abbott Destroyed Davis
Some excellent articles have been written about why Greg Abbott beat Wendy Davis so badly in the race to be Governor of Texas. Davis probably never had a chance to win because 2014 was another wave election when Democrats lost all over the U.S. Here are a few other reasons why Davis got cremated by Abbott:
to read a Texas Tribune
article reprinted in the Washington Post
When the curtain came down on Team Davis, the campaign had not aired a single English-language TV ad focusing on the Fort Worth senator's up-from-the-trailer-park narrative once seen as her campaign's thematic foundation.
Click here to read a Texas Tribune article on the internal dysfunction in the Davis campaign
. The article quotes a January 2014 memo from campaign consultants to Davis' campaign manager that warned:
... that the Davis campaign had "lurched to the left," was failing to communicate a positive message and offered virtually nothing to the swing voters the senator would need to win statewide. "There is not a model where a candidate who appears this liberal and culturally out of touch gets elected statewide anywhere in the south - much less in Texas - without some inoculation," the consultants said.
Lawrence Person's excellent BattleSwarm Blog offers this summary:
Davis was the wrong candidate at the wrong time who ran the wrong campaign in the wrong state.
Here is the Greg Enos analysis: Abbott had a natural advantage to start in a Republican state, but his television advertisements emphasized his inspiring personal story and his plans for Texas. Davis never connected with the average voter, especially women voters. Abbott ran a mistake free campaign and was not shy about reminding us what a great state we live in, even though Texas ranks 50th in percentage of population graduated from high school but first in the number of people without health insurance coverage.
Three New Associate Judges
Harris County family court judges-elect have announced who their Associate Judges will be. So far Judge Dean and Judges-Elect Prine and Schmude have announced their picks.
John Schmude has selected Paula Vlahakos to be the next Associate Judge of the 247th District Court. Vlahokos got her J.D. from South Texas in 1998 and was licend in 1999. She worked for Short Jenkins Kamin from 1999 until 2007 and for Short Carter Morris since 2007. This first major decision by Mr. Schmude should give us all even more confidence in his good judgment. Schmude is going to be assisted by a very experienced and smart attorney and not a political hack.
Prior to becoming an attorney, Vlahakos worked as the legislative coordinator for Service Corporation International and later as the community outreach coordinator for The Children's Assessment Center/Harris County Children's Protective Services. Paula has also taught at Houston Community College. Until accepting this appointment, Paula served as a member of the board of AVDA - Aid to Victims of Domestic Violence. Paula and her husband of 23 years, Frank, have three daughters.
Judge-elect Charley Prine has selected Chelsie Moerbe Ramos to be the Associate Judge of the 246th Court. Ramos is also an associate attorney for Short * Carter * Morris, L.L.P. Mrs. Ramos graduated from South Texas College of Law in 2001. Ramos is a mom and an experienced family law attorney.
Chelsie Ramos is married to former Associate Judge Rick Ramos. I have checked and Rick Ramos will not be representing clients in the 246th. It should surprise no one that I think it improper and unethical for the spouse of a judge to practice law in his wife's court (whether the judge is elected or an appointed associate judge - more on this in detail in future issues!).
As long as flying on one lawyer's leased jet or riding on his yacht does not count for more than an open invitation to ride in my two person kayak, Mrs. Ramos should turn out to be an excellent selection.
[Note: The judge's robe and the name of the plane were added to this photograph].
In a related development, Short * Carter * Morris has sudden openings for associate attorneys with political ambitions. Please send resumes and detailed primary voting histories directly to Lindsey Short.
Judge Sheri Y. Dean will be replacing Charley Prine with Beverly B. Malazzo as Associate Judge of the 309th District Court. Malazzo got her J.D. from South Texas in 1992 and worked in the Harris County District Attorney's office through 2001. She was a prosecutor in Juvenile Judge Pat Shelton's court and then became a juvenile court referee.
Click here to read a 2002 Houston Press article about Malazzo's minor role as a referee in appointing the same attorneys (including some guy named Clevenger) over and over for juvenile defendants (basically the same appointment racket I have been writing about in CPS cases a decade later). Let's hope that what Malazzo learned from Judge Shelton in the dank, ethically-challenged jungle of patronage that is the juvenile courts does not guide how she selects and appoints attorneys in Judge Dean's court.
If you "Google" Ms. Malazzo, one of the first things you find is the 2006 Reprimand of Ms. Malazzo by the Texas Ethics Commission. Click here to read the full reprimand which in the end did not involve a very serious offense (but did slap her with a whopping $100 fine). The reprimand found that Malazzo used the Texas State Seal in campaign advertising even though the Election Code only allows elected officials to use the Seal in their advertising. We all may expect judicial candidates to know the law, but that rule seems unconstitutional to me and I personally would have challenged it instead of paying the $100 fine. The Ethics Commission found that Malazzo was only a little misleading in how she used the term "judge" in her advertising and concluded it was a "de minimis" violation.
columnist Rick Casey addressed this issue when Malazzo was running for judge and concluded she really had done nothing wrong. Click here
to read his column. Casey pointed out that Malazzo received very high positive reviews from attorneys in the Harris County Bar Poll
, which should encourage us all.
Ms. Malazzo may, however, still be unclear when it is proper to use the term "Judge." Judge Dean's announcement of her selection of Ms. Malazzo says,"Currently, Beverly is in private practice
." I could find no indication Malazzo is working as a judge or was ever elected judge. I could only confirm she once served as a juvenile court referee and she once ran for judge but lost. Yet, this is her current listing with the State Bar of Texas. Unless "Judge" is part of her given name, I do not think she should be calling herself that (at least, before January 1).I checked on the State Bar listings of our current Associate Judges, and none use "judge" as part of their names, even though they really are judges. Our elected judges do not do that either. We all know as attorneys that the information displayed in these State Bar listings is supplied and verified by the attorney herself.
Malazzo also calls herself "Judge" in her listing on the Texas Board of Legal Specialization website and on www.lawyer.com.
I was unable to reach Ms. Malazzo to get her explanation for her use of the label "judge." I know I would expect a lawyer with intelligence, ethics and good judgment to be careful and respectful about using that term correctly so as to not mislead the public or even get in trouble for it. This nitpicking issue I am raising will at least be moot after January 1, 2015.
A 2005 Houston Press article further explored Ms. Malazzo's approach to ethics and campaigning:
Beverly Malazzo is an associate judge [referee!] in Harris County's juvenile courts, but she has set her sights higher.
She wants to run for the judgeship of the 315th District Court, one of the county's three juvenile courts. To do that, she needs to get 500 signatures on a petition. The way she's going about it is causing some grumbling among local criminal attorneys.
Malazzo sent out an e-mail announcing that she'd be holding a petition drive outside the Family Law Building. The attorneys on the e-mail list, one lawyer noted, are the same attorneys who are eligible to be appointed to represent juveniles in the courts.
If Malazzo wins, she'll be the one making those appointments; if she wins, it probably wouldn't be a bad thing for an attorney to have his name on her petition.
That's not all that unusual -- in the gray-ethics world of the courthouse, judges get almost all their campaign cash from people who practice in front of them. Campaign contributions make absolutely no difference in how an attorney gets treated by a judge, rest assured. (We know this because judges tell us this every time we write about campaign contributions.)
Alerting potential appointees to their need to sign a petition is one thing. It's where they were supposed to sign it that further raised eyebrows.
Malazzo supporters set up a table on the plaza outside the Family Law Building. The Texas Election Code states that potential candidates can't collect signatures "on the grounds of a county courthouse or courthouse annex."
Malazzo says she interprets "the grounds" to mean the Family Law Building itself. The supporters collecting signatures promised to provide a statute backing up that contention, but they never did.
A spokesman for the Secretary of State's office said he could not find any opinion by the agency defining what "the grounds" means. You'd think the grounds would be everything but the building, but then again we're no lawyers.
That year, Malazzo got enough petition signatures to get on the ballot but she lost in the Republican primary.
Malazzo is a long time friend of Judge Dean's, but she is not well known to family law attorneys. I could not even find a photograph of her. Few family lawyers knew Charley Prine before he was selected by Judge Dean and he turned out to be a really good judge (with one "Flowery" exception). The family bar should have confidence in Judge Dean's good judgment by now.
We all (including me) need to have an open mind and see how Ms. Malazzo does. I am reporting a few facts from her past that may raise question marks but the real test is how she does in office. I did reach out to Ms. Malazzo through an e-mail to Judge Dean to get the former referee's side of the story on the issues described above, but I did not hear from her. I will be sure to call her "Judge Malazzo" when I appear in front of her early next year. One can only guess what she will be calling me.
All of the new judges deserve our support and respect until they do something to lose it.
I just hope all of the new judges focus on efficiently and fairly resolving cases and not on political patronage.
|"Together, attorneys can improve our family courts!"
Click here to be inspired by an amazing video of a mongoose taking the fight to a pride of lions. I have seen the same look of surprise that those lions showed on the faces of a few judges in the last few years.
In this Issue
The Two Lost Family Courts Will Be in the Civil Courthouse Soon!
It is hard to tell from the current state of construction, but the courtrooms of Judges Lombardino and Franklin should be finished on the eighth floor of the Civil Courthouse by late December. My New Year's gift to the family bar will be a new courtroom chart with all of the new names and locations.
I went to the eighth floor this week, slipped on a hard hat, checked out the new courtrooms, helped hang a door, installed a few listening devices and wondered why they are still leaving so little room to walk behind the counsel tables.* It will certainly be nice when all of the family courts are in the same building!
Billion Dollar Divorce
The wife of Oklahoma oil tycoon Harold Hamm was awarded almost a billion dollars in her divorce. She gets her first one-third installment of $320 million before the end of 2014. Click here
to read about a divorce case that would be a big one even for Bobby Newman.
It seems odd to us, but in Oklahoma, the money a spouse earns while married can be divided in a divorce if it is made through skill. If, on the other hand, the increase is attributable to "changing economic conditions, or circumstances beyond the parties' control," then that money is what we would call separate property. Mr. Hamm, who started as a wildcatter with almost nothing, had to show his brilliant success was not because of his brilliant skills and he apparently failed to do so.
The Hamm case is not a world record, however. Click here
to read about the $4.5 billion
awarded the wife of a Russian oligarch by a Swiss court in May 2014.
My Letter to the District Attorney About Gary Polland
Now that the election is over, I have written District Attorney Devon Anderson's Public Integrity Unit about Gary Polland. Similar letters send by me in the past led to the indictment of Judge Dupuy and the forced resignation of Judge Pratt.
The actions of Mr. Polland are particularly important because of his influence with judges as the former Republican Party Chair, one of the "Big Three Endorsers" who dominate local GOP primaries and as a Houston television personality (on Channel 8 at least).
This is what I wrote to the D.A.:
I attach documents relating to attorney Gary Polland and what I contend are false pay vouchers he submitted to the county for work he did as a lawyer appointed on CPS cases. I believe that the crime of tampering with a government record may have been committed.I am providing you:
1. A legal article that establishes that a court appointed ad litem in a CPS case cannot bill the county for legal work done by someone else.
2. A spreadsheet that summarizes Polland's billing to the county for a three month period (August - October 2013).
3. By way of example, a spreadsheet and backup invoices for just one day, October 1, 2013, when Polland billed 20 hours for home visits, 10 hours for other "out of court" work and for one juvenile court appearance - all in one day.
4. By way of example, I provide invoices for August 10, 2013, when Polland billed for four home visits totaling 19 hours. In CPS cases, the law requires the attorney ad litem appointed to represent the child to personally visit the child at home before each court appearance. Polland almost always bills exactly 5.0 hours for "travel to and conduct home visit; draft report with pictures," which is itself highly suspicious. These invoices submitted by Polland clearly make it look like Polland did all of this work and certainly do not mention any associate or social worker conducting these home visits. It is clearly not possible for one attorney to conduct four or five home visits or to honestly bill 19 hours in one day. Did Polland visit a child at home at 3:00 a.m.?
It is also very odd that Polland almost always bills exactly 5.0 hours for these home visits, regardless of where the child lives. I have now seen hundreds of CPS pay vouchers, and most attorneys bill from 2.0 to 3.5 hours for home visits and the number of hours they claim always varies because, of course, the time they spend in travel and visiting the child varies every time.5. An e-mail from an attorney casting doubt on the number of hours Polland billed for a home visit on August 29, 2014 and the invoice Polland submitted for that day.6. Copies of my newsletter for the period August - October 2014 which, in part, address this issue and even suggest what Polland's defense will be.I strongly urge District Attorney Devon Anderson to recuse herself and ask for the appointment of a prosecutor pro tem because of her ties to Gary Polland and his influence in the local Republican primaries. Ms. Anderson will be running in Republican primary in just two years and we all know that she will be counting on Polland's support.Sincerely,Greg Enos
I have no doubt about the facts involving the CPS billing submitted by Gary Polland and Alicia Franklin. However, there are genuine legal issues that could make indictments difficult to obtain. The misleading and, to me, false pay vouchers they submitted may not be false enough to constitute a crime given the format of the forms and the fact that some judges permitted the improper billing.
Someone other than Devon Anderson and her crew who made such a sweet deal for Judge Denise Pratt should do the investigating of Anderson's fellow Republicans. If nothing else, Anderson can avoid another political attack when she faces a very tough re-election campaign in two years in a presidential election year.
* Note: Before D.A. Anderson indicts me for criminal trespass: Most, but not all, of what I wrote about my visit to the 8th floor courtrooms under construction is fiction.
Galveston County Battle Gets Embarrassing
The fight between the elected judges in Galveston County and the County Commissioners has become down right embarrassing. The County filed a reply to the response filed for Judge Cox in the County's mandamus action to overturn Cox's order forbidding them from firing or replacing Bonnie Quiroga, the Director of Justice Administration.
The county's reply attaches a lot of e-mails between Quiroga and County Judge Mark Henry. Those selected e-mails certainly make it look like Quiroga thought she worked for Henry. Some of the e-mails were apparently selected to show Quiroga was not too loyal to the judges who are now fighting for her. A few e-mails reveal uncomfortably embarrassing and negative comments from Quiroga to Henry about the judges Quiroga now says were her real bosses.
Here are some examples:
"Ain't that some shit! I am so tired of these lazy people [referring to a judge] sucking off the taxpayer! I guess I am old school, where being a public servant was something you did proudly."
[Apparently referring to someone who had applied to be appointed an associate judge] "What I didn't say at the interviews is that I don't recommend appointing anyone who was having sex on a picnic table at one of the County Christmas parties."
"Someone needs to file an anonymous complaint on [Judge Bret] Griffin. He held a hearing and made a ruling in one of the cases that [Toni] Buzbee has in his court. He is supposed to avoid even the appearance of impropriety. His wife not only works for Buzbee, but she is a business partner in that Dunn Brothers coffee Shop in Friendswood (and since it is marital property - that makes it Bret's property, too). He has two other cases with Buzbee coming up for trial. He should have requested those be transferred from his court. It does not require a motion from either party. He also has not completed the required Open Meetings training."
Click here to read all of the e-mails submitted to the Court of Appeals.
Support from other judges for Judge Cox's fight with commissioners was waning even before these e-mails were revealed. I still implore both sides to consider a compromise to resolve this dispute.
New Appellate Case on Intentional Under Employment
Some judge named "Pratt" was just reversed in Reddick v. Reddick
, No. 01-12-00576-CV (Tex. App. - Houston [1st Dist.] 10/23/2014). This case is an excellent reminder that not every parent who could in theory earn more should be found to be intentionally underemployed.Click here
to read the entire case, which provides this summary of the law:A parent who is qualified to obtain gainful employment cannot evade his or her child support obligation by voluntarily remaining unemployed or underemployed. Concurrently, the court must consider a parent's right to pursue his or her own happiness with a parent's duty to support and provide for his or her child. The court must engage in a case-by-case determination to decide whether child support should be set based on earning potential as opposed to actual earnings. Once the obligor has offered proof of his or her current wages, the obligee bears the burden of demonstrating that the obligor is intentionally unemployed or underemployed. The burden then shifts to the obligor, if necessary, to offer evidence in rebuttal.Trial courts should be cautious of setting child support based on earning potential in every case in which an obligor makes less money than he or she has in the past. Although some financial resources are indispensable to raising and providing for a child, the financial analysis will often not be the end of the court's consideration. A court properly considers the obligor's proffered rebuttal evidence of the reasons for an obligor's intentional unemployment or underemployment. This includes such laudable intentions by obligors who alter their employment situations to spend more time with their children, to live closer to their children in order to attend their events and be more involved in their lives, or to provide their children with better health benefits.Other objectives are also factors, such as whether an obligor alters his or her employment situation to start a new business, to gain further education, to become a public servant, or to address health needs. An active but unfruitful pursuit of employment may also be relevant to the court's child support determination, as well as economic conditions that legitimately preclude full employment. But, we are mindful that such explanations are not always sincere, and the judge as fact finder has latitude to consider the testimony and evidence to make the necessary determinations. Such discretion must be exercised within the limits set by the Texas Family Code, particularly Chapter 154 including the child support guidelines, and should always focus on the best interest of the child.To facilitate appellate review and to encourage consistency in the exercise of this discretion across the state, the trial court must make a finding of intentional unemployment or underemployment and its decision to base child support on earnings potential rather than actual earnings must be supported by the record.
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.
Attorney Greg Enos