Category: Harris County

The Family Court’s Secret Wheel

The Family Court’s Secret Wheel

February 22, 2016

Everyone follows the rules, except the Tarrant County (Fort Worth, TX) family courts.  Across the street from the family courts, is the brand new $4 million dollar courthouse handling the county’s civil and probate cases.  Several blocks away sits the criminal courthouse.  Since 2015, all of these courts are statutorily required to post and utilize a rotating court appointment wheel.

Not only to rotate qualified attorneys appointed on cases, but the courts must post, manage and report all court appointments to the Office of Court Administration. Part of the motivation by Senator Zaffirini authoring SB 1876, is to ensure transparency and foster efficiancy in the Texas courts.  

A Houston probate court judge questioned the new bill.  “As characterized by Judge Olsen, SB 1876 requires judges to make a list of ‘qualified persons’ for appointments, then move down the appointment list in a robotic fashion, ‘mindlessly picking the next person on the list, unless there is cause.’ The judge is no longer free to pick the best qualified person at his disposal, unless he jumps through the hoop of finding good cause,” said the letter. “By requiring a judge to make individual appointments for each case, the legislature is interfering with the manner by which a judge manages his docket.”   

Protective Parents Coalition (PPC) for years have questioned the appointment practices in the family courts and were quite pleased when Senator Zaffirini agreed some of our courts were plagued with a horrible disease called cronyism.  We hoped the problem would be fixed, so we checked.

As of today, the Tarrant County Probate Court Appointment policy can be found here:  TC Probate Appointment Policy. The Tarrant County Criminal Court Appointments are handled through the (Tarrant) Office of Court Appointments. And, the Tarrant County Civil Courts post their qualified court appointment lists on the first floor for the public to view, per Texas Gov. Code 37.005.

IMG_2293 Texas Gov. Code: Sec. 37.005. POSTING OF LISTS. A court annually shall post each list established under Section 37.003 at the courthouse of the county in which the court is located and on any Internet website of the court.

On February 16, 2016, PPC filed an open records request for the family wheel policy, appointments since 9/1/2015, and the public list of qualified attorneys on the wheel.  We were notified today these documents are not considered open records and we must put a request in writing to each judge for the information.  The Tarrant County District Attorney’s Open Records Office stated,

I am in receipt of the above referenced request. However, I am not the custodian of judicial records. Since your request seeks judicial records, you will need to direct your inquiry to each district court judge for the records they maintain. You can get the contact information for each district judge on the County’s web page www.Tarrantcounty.com.”
 

Yes, the family judges maintain the records, but the statute requires posting inside the courthouse and online.  We will file a request to each Tarrant family judge and report back with our results.

One could argue there is no accountability or transparency in the Tarrant County family courts.  

Permanent link to this article: http://www.ppcforchange.com/tcfamily-courts-secret-wheel/

Electronic Evidence – Attorney Beware!

Illegal Electronic Evidence and Family Law Part 1: Attorney Beware!    

December 9, 2014

Written by Greg Enos, Issue: No. 56
The Enos Law Firm
17207 Feather Craft Lane, Webster, Texas 77598
www.divorcereality.com

greg_with_name.193134024_std“Lawyers can be sued, arrested and sent to prison and disbarred for mishandling illegal electronic evidence, such as recordings, e-mails and text messages.   This article is the first in a series on what makes electronic evidence illegal, the many ways that electronic evidence is being obtained illegally these days, how law firms and clients can safeguard their computers and phones and what can happen to clients and lawyers who break the law.  This first article focuses on what attorneys should never do with illegally obtained evidence.

An attorney can face personal, criminal and civil liability for using or disclosing an illegal recording or illegally intercepted electronic communication (e-mail or text message) provided to the attorney by a client. For example, the following can be separate and independent federal and state wiretap act violations:  (1) a client’s disclosure to an attorney of an illegally obtained e-mail, (2) the attorney’s disclosure to his staff, co-counsel or expert of the e-mail or its contents, (3) an attorney’s use of information obtained from the illegal evidence in pleadings, (4) an attorney’s use of the illegal evidence as attachments to pleadings and affidavits, (5) a lawyer’s use of information obtained from the illegal evidence when questioning a witness, (6) a lawyer’s use of the illegally obtained recording or communication as evidence in court or a deposition.

Each separate illegal use or disclosure of intercepted communication can be a federal or state felony and can result in a $10,000 civil penalty (plus actual damages and attorney’s fees).

Consider this example from criminal defense attorney Mark Bennett’s excellent blog (click here to read his entire post):

Just before Duke’s first unsupervised visit, Dianna bought a small digital recorder online. Dianna unstitched a bit of her daughter’s favorite teddy bear-known as “Little Bear”-and stuck the recorder inside, stitching the animal back up afterwards. The recorder never left the bear’s guts after this, except when the animal was washed. With no voice activation feature, the gadget simply recorded everything that happened in its presence, and Dianna periodically unstitched the bear just enough to insert a USB cable and download the audio recordings to her computer.

.  .  .  .  .

All of this material was then turned over to Dianna’s lawyers, who submitted it to the state court and waited for a ruling on its legality. In the summer of 2008, the state judge decided that the recordings were not admissible as evidence in the custody trial, since they violated the Nebraska Telecommunications Consumer Privacy Protection Act and were therefore obtained illegally.

Then, in a federal civil lawsuit by the people whose oral communications had been illegally recorded, the clients got dinged for $60,000 each plus attorney’s fees for violating the Federal Wiretap Act, 18 USC Section 2511.

The court found that their lawyer had violated the Act by revealing the recordings to other lawyers in the case, but did not enter a judgment against him:  

The court has carefully considered Mr. Bianco’s role in this matter and finds that damages should not be awarded against Mr. Bianco. Bianco did not solicit or advise the Divingnzzos to intercept the plaintiffs’ oral communications. While he disclosed the illegally-obtained materials to advance his client’s position in the Custody Case, the court did not consider the materials. The other recipients returned the materials unread or maintained the confidentiality of the communications.

The lawyer, who could easily have been ordered to pay $60,000 as well, got lucky in part because “the other recipients…maintained the confidentiality of the communications”-something entirely out of his control (and not, strictly speaking, a legal defense).

Moreover, both the lawyer and his clients got majorly lucky in another way: by not getting indicted. If the Divingnzzos or Bianco had popped up on the radar of the U.S. Attorney for the District of Nebraska, they could easily have been facing zero-to-five-year felony wiretap charges.

The Federal Wiretap Act (which applies to interception of phone, voice and electronic communications) can make a lawyer a criminal if she: 

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

18 U.S.C. § 2511(1)(c), (d). 

The Texas Wiretap Act is basically the same as the federal law except a lawyer can commit a crime if she is reckless in using an illegal recording or communication (which is a much broader standard of liability than “knows or has reason to know the information was obtained through [an illegal] interception…”).  Under the Texas law, a person commits a crime if she…

(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;  

Tex. Penal Code § 16.02(b).   

The Austin law firm Noelke English Maples St. Leger Blair, LLP has provided excellent guidance for attorneys that we all should follow:  

 DO: Advise your clients that they cannot delete, destroy, remove, or otherwise edit electronic data.

DON’T: Take possession of illegally obtained material. If you have it in your possession, read it or listen to it, you may be committing a crime by using it in the preparation of your case.

DO: Advise your clients on the law of intercepting email and other forms of communication. The best policy is to advise your clients NOT to access their spouse’s email accounts at all, even if they think they have consent to do so.

DON’T: Represent a person who has illegally obtained electronic material. Period. It is not worth the risk.   

DO: Advise your clients to change all of their passwords. And if you suspect that spyware has been installed, have the computer or phone inspected by an expert.

DON’T: If you have illegally obtained discovery in your possession, don’t produce it in discovery without the advice of a criminal defense attorney.

DON’T: Turn over your client’s cell phone or computer for copying without a written agreement in place as to how it will be searched. There may be privileged or non-discoverable data on these devices that does not need to be produced.

The next article in this series will describe the most common methods of illegally intercepting or obtaining electronic evidence and what laws are being violated.  For example, is it a crime for a husband to guess his wife’s g-mail password and printout her e-mails with her boyfriend?  Can the lawyer go to jail if she uses or shares those emails?  This is stuff we all need to know and we need to educate our staffs and our clients about these laws, so we all can stay out of trouble.”

 The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact a competent attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site is not legal advice. The opinions expressed at or through this site are the opinions of the individual author and may not be viewed as legal advice.

Permanent link to this article: http://www.ppcforchange.com/illegal-evidence-atty-beware/

Harris County District Judge Pratt resigned due to misconduct allegations

Embattled judge Pratt resigns, suspends campaign

Pratt1The freshman Republican jurist campaigned as a conservative advocate for children and families, touting her unique policy of keeping boyfriends, girlfriends and lovers of recently divorced litigants away from children. While a bevy of Houston-area lawyers and families who have rallied against Pratt challenged that claim, the Baytown native defended her record Friday in a statement that said her departure from the 311th state District Court was due to the damage that “relentless attacks by my political opponents” were having on the court, the local Republican Party and her family.

“I cannot, in good conscience, allow it to continue,” she wrote on her campaign website. “My goal has always been to serve the children and families of Harris County, but I won’t sacrifice my family’s well-being any longer to continue to serve as judge. … I don’t want to see my party, which I have worked to build, dragged down by the media circus.”

A Harris County grand jury began investigating Pratt, who was elected in 2010, last fall after Webster family lawyer Greg Enos filed the first of three criminal complaints against her. That led to the resignation of Pratt’s lead clerk, whom the judge blamed for the backdating. Enos’ most recent complaint, filed last month with the district attorney and State Commission on Judicial Conduct, alleged Pratt broke the law by dismissing more than 630 cases on the final two days of 2013 without giving notice to lawyers or litigants.

The move effectively nullified a bevy of property, child custody and child support arrangements she had previously made, creating additional anxiety, confusion and legal costs for families. As a result, one man’s ex-wife showed up at his house demanding to move back in.

Since Enos filed his first complaint in October, dozens of prominent family court lawyers – Democrats and Republicans, alike, and many with cases still pending in her court – spoke out against Pratt, signing a letter calling for her resignation, asking for her to be recused from their cases and – last Saturday – attending a protest Enos organized.

As of Friday, 29 motions to recuse had been filed, according to the administrative judge for the family courts, with 13 denied, 15 granted and one pending.

Earlier this month, Pratt was removed from five cases in a day by a visiting senior judge who criticized her for making a final ruling in a child custody case without hearing any testimony or evidence. The opposing lawyers on the case told the judge they recently had been interviewed by the district attorney’s office about it as part of an ongoing criminal investigation into Pratt, a claim the office has neither confirmed nor denied.

Pratt’s critics have harped on the fact that she and District Attorney Devon Anderson share the same political consultant, Allen Blakemore, who said Friday that “the DA’s office never initiated their own investigation; they responded to criminal complaints filed by Greg Enos. They investigated those criminal complaints and they found them to be without merit.”

Under investigation by Harris County prosecutors for dismissing hundreds of cases without notice, embattled family court judge Denise Pratt resigned Friday, abruptly ending her re-election bid.

On Friday, Pratt critics said they were elated by the resignation, but also frustrated that she continues to deny wrongdoing.

“Instead of taking responsibility for her actions, she’s blaming people like me, when all the lawyers want are judges who show up to work and follow the law and treat people fairly,” Enos said. “Had she done that, she wouldn’t be in this position.”

Despite the firestorm, Pratt secured the highest percentage of the vote in the five-way March 4 primary, but not enough to avoid a runoff. She was to face family lawyer Alicia Franklin in a May 27 election.

Pratt’s name will still appear on the ballot, County Clerk Stan Stanart said. Though his staff, as a practical matter, still could remove her name, state law would have required Pratt to file withdrawal papers by 5 p.m. March 12.

Pratt “often times didn’t come to court,” Franklin said. “Orders were not being signed and the local rules say that they must be signed within 10 days and sometimes there were orders” to transfer property or collect child support that “hadn’t been signed for seven months.”

Assistant Harris County Attorney Douglas Ray said Gov. Rick Perry will appoint a replacement for Pratt to serve through Dec. 31.

Harris County Republican Party Chairman Jared Woodfill said he will encourage the governor to select Franklin, who he said is the party’s “nominee by default.”

Franklin, who had been appointed by Pratt several times to represent children as an amicus lawyer, had originally planned to run for election to the 247th Court, but switched to the 311th when she started noticing problems.

Reporters Mike Morris and Dug Begley contributed to this report.

 

Permanent link to this article: http://www.ppcforchange.com/harris-county-district-judge-pratt-resigned-due-misconduct-allegations/

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