Issue: No. 78 January 9, 2018
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Did Judge Lonnie Cox Cross Ethical and Possibly Criminal Lines?
I must reluctantly write again that a Galveston County judge appears to have engaged in conduct that is improper, unethical and potentially criminal. I am requesting that the Galveston County District Attorney recuse himself and that a special prosecutor be appointed to investigate the facts I have uncovered, which are summarized below.
The last time I wrote these words, a special prosecutor was appointed and Judge Christopher Dupuy was removed, indicted and finally convicted of a crime (perjury involving this very newsletter and my newsletter articles). I exposed the behavior of Judge Denise Pratt in Houston and found witnesses to prove her behavior and that judge resigned in a deal with the District Attorney to avoid prosecution. I exposed billing abuse on a gigantic scale by a few lawyers appointed to represent children and parents in CPS cases and the Texas legislature completely changed how attorneys are appointed and paid in such cases. So, here I go again.
This article is based on these important, but easy to understand, principles:
● A judge must be fair and appear to be fair,
● It is not proper for a lawyer who is representing a judge to practice law in that judge's court, and
● A judge cannot accept gifts (including free or discounted legal services) from a lawyer who presents cases in that judge's court.
These basic rules are contained in the ethical rules judges and lawyers must follow and in the Texas Penal Code, which makes it a crime for a judge to accept a gift ("benefit") from a person with an interest in a case heard by that judge. This article presents evidence that makes it appear Galveston County District Judge Lonnie Cox may have violated these rules.
District Judge Lonnie Cox
evidence of potential ethical and maybe criminal violations by Judge Cox that concern me deeply because I care so much about the integrity and reputation of our justice system. I am a lawyer who has for 32 years practiced primarily in Galveston County and this article may effect my own cases, because some judges strongly support Judge Cox in his political feud with County Judge Mark Henry. To be fair, I must disclose that I have represented Mark Henry in the past (I charged Judge Henry my normal, full hourly rate), as I have represented other judges as clients. I have in the past supported Lonnie Cox and I have been to his house and consider him a friendly, affable man. I am a divorce lawyer, so I do not practice in Cox's court. But, I am aware of how politically powerful Cox is in Galveston County and how many judges either support or fear him. I have spent many dozens of hours on my investigation (time not spent with my family or working for my paying clients). This is very important to me and it should be to you.
I try my best in this article to be thorough and accurate and above all fair to all involved. I am a lawyer working in Galveston County and you can be sure I would not lightly suggest that a sitting Galveston County judge has violated the rules of ethics and possibly criminal laws. This is very serious business and if I am wrong, then I stand to get in trouble, get sued and even my law license could be in jeopardy. Sadly, I have documented facts and I am very sure I am not wrong about this disturbing situation.
These links will take you directly to specific parts of my article:
I have filed a criminal complaint with the Galveston County District Attorney's office based on the facts described in this article. Click here to read my complaint which I filed with the District Attorney.
I sent rough drafts of this article to Judge Cox, his lawyer, Mark Stevens, and to County Judge Mark Henry and invited their comments and corrections. Henry and Stevens responded. Cox did not. The lengthy response from Mr. Stevens actually made things look much worse for Judge Cox in my eyes and caused me to suggest that a criminal investigation should be launched (by an independent prosecutor, not Jack Roady's office). Click here to read Stevens' response to my draft article.
All I want are judges who work hard, who are fair and ethical and who do not play favorites. I honor our many judges who meet these criteria and I have made it my somewhat risky hobby to go after those judges who do not. Click here to read a 2013 Houston Chronicle story about my pursuit of justice, entitled "Lawyer says his hobby is taking on bad judges."
Originally, I was looking into the enormous legal bills paid by the county in defending the lawsuit filed by Judge Cox. As I was trying to figure out how the law firms representing Judge Henry and the county could charge $1.3 million while Mark Stevens only charged Judge Cox $17,587.18, I realized that Stevens had represented clients before Judge Cox while Stevens was representing Cox. That stunning discovery changed the focus of my research. My investigation has uncovered the following facts about Judge Cox and I have confirmed these facts with case documents and the people involved, including Judge Cox's lawyer, Mark Stevens, and their opponent in their recently concluded lawsuit, County Judge Mark Henry. Most of the documents which support the facts below are hyper-linked in this article.
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 who actually personally visit their minor clients in their homes). Is that asking too much? Stay tuned.
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Introduction and Background Facts
Attorney Mark Stevens began representing Judge Lonnie Cox in September 2014 according to Stevens' bill for Cox. In October 2014, Stevens represented Judge Cox in a mandamus action. In June 2015, Stevens filed a lawsuit for his client Judge Cox against County Judge Mark Henry on June 9, 2015. That lawsuit was pending until Cox had Stevens dismiss the case in July 2017 after the Texas Supreme Court ruled in favor of Judge Henry. Judge Cox sued Judge Henry because Henry fired Bonnie Quiroga, a county employee who served as the director of justice administration. Cox (with Stevens as his attorney) initially won an injunction before a visiting judge but, on appeal, the Texas Supreme Court ruled for Henry's position and sent the matter back to the trial court. Judge Cox then dismissed his lawsuit. Judge Henry would say that Cox dropped his lawsuit because Cox faced near certain defeat after the Supreme Court ruling and the possibility that he might get stuck with the county's legal bills. Judge Cox has said that his lawsuit served its purpose because the county conceded the judges have the right to hire their justice administrator and now separate departments have been established that report to the judges. Others would argue that this dispute should have been resolved between fellow Republican elected officials outside of court and should never have become such a nasty legal and political battle.
Unfortunately for tax payers, Galveston County incurred $1.3 million in legal fees defending and ultimately defeating Cox's lawsuit. I plan to write an article in the next few weeks about those enormous legal fees paid by Galveston County (which were 74 times what Mark Stevens charged Judge Cox for the same case and at least six times what I would have probably charged for the same work). After Judge Cox dismissed his lawsuit, he made very misleading statements about the case and I published an article that pointed out how he was trying to mislead the public. Click here to read that article. In my past articles, I criticized Judge Henry for how he treated our local judges and I criticized Cox for his lawsuit and how he turned a disagreement between elected officials of the same political party into World War III.
Mark Stevens was the lawyer for Judge Cox from September 2014 through July 2017. During that time, Mark Stevens represented civil and criminal clients in the 56th District Court and appeared as a lawyer before his client, Judge Cox. Cox even approved payment of fees to Stevens on criminal appointments while Stevens was representing Cox. That is simply not proper or ethical. However, unethical is not criminal. But, Stevens represented Judge Cox for a hugely discounted hourly rate and in effect was giving a gift to Judge Cox at the same time he was appearing in front of Cox as a lawyer. Stevens only charged Cox $66 per hour instead of his usual $150 per hour. Stevens billed Cox for 243 hours, which means that Stevens gave Cox a discount of $20,412 on the work he billed Cox for. Worse, Stevens simply did not even bill Judge Cox for a good bit of the work he did on Cox's case (and his own bills prove this). For example, Stevens on April 18, 2016 filed a 54 page "Response to Petition for Review" in the Texas Supreme Court. Yet, Stevens bill shows no charges at all between February 8, 2016 and June 19, 2016. There is no telling how many hours Stevens worked on that 54 page document he filed for Cox, but no charge is very different than a discounted rate. If a lawyer works for free and does not charge a client, he is clearly giving that client a gift that can be measured in dollars and cents. In other situations, it can be a good thing for a lawyer to donate free work. But, if the lawyer is representing a judge and also appearing on other cases in front of that judge, it is a very bad thing.
The ethics rules that govern judges' behavior make it very clear that a judge may not accept gifts from lawyers who practice before them. However, it is a crime under Texas Penal Code Sec. 36.08 for a judge to accept a "benefit" from a person the judge knows is interested in or likely to become interested in any matter before the judge. Case law says a "benefit" can be anything to which a price can be assigned. We all know that an hour of a lawyer's time is something to which a price can be assigned. It is not clear that the law would have been violated just because Stevens worked for Cox for free or at a reduced rate. But, the fact that Stevens appeared in front of Cox as a lawyer while representing Cox for free or at a discount is what makes me believe that Cox and Stevens may have crossed a line from unethical to something far worse. For Cox, the trouble does not stop there. Cox has told the public and local Republicans that he paid his lawyer, Stevens,"out of his own pocket." However, it turns out that Cox paid Stevens from his campaign account just this past June. A 2008 ruling from the Texas Ethics Commission involving a Texas Supreme Court justice said that by paying his lawyer with campaign funds, the judge violated the law by accepting a discount from his lawyers since the discount on legal fees paid with campaign funds was an in-kind political donation that was not reported and which exceeded the maximum donation amount allowed by law. It is a crime for a politician not to report a donation on his political campaign reports.
I was astounded when I realized what Cox and Stevens had done. I could not believe that a smart judge and a Harvard educated lawyer could do something so obviously improper. Surely, they knew they would be under close scrutiny. When Judge Cox sat in his black robe up on his bench and his lawyer, Mark Stevens, appeared in front of him on a civil or criminal case, why didn't Cox just stop everything and tell Stevens that the case had to be heard by another judge? Judge Cox knew he was getting legal work at an incredible discount. Stevens surely knew that he was simply not billing the judge for some of the work he was doing. Stevens tells me that he did insist that some of his cases had to go to other courts and be heard by other judges. Why didn't he follow that common sense approach on all of his cases to avoid getting his client, Lonnie Cox, in trouble? Doing the right thing some of the time is not a defense to doing the wrong thing a few times. A bank robber does not get off because he went to the bank several other times and did not pull a heist.
I can document at least one civil case and 10 criminal cases where Stevens appeared in front of Judge Cox while Stevens was representing Cox. Judge Cox appointed Stevens to represent criminal clients in Cox's court while Stevens was Cox's lawyer and Cox even approved payment of Stevens' fees by the county in those cases. What the hell were they possibly thinking?
My very conservative, Republican neighbors in Friendswood where I live can easily understand why judges should not accept gifts, including free or reduced price services, from those who appear before them or hear cases involving a lawyer who is representing the judge. How could Cox and Stevens not see that?
We expect judges to know and follow the law, to be ethical, to avoid even the appearance of crooked behavior and certainly to not commit crimes. Judge Cox simply should have known better and his behavior described in this article should make us all question his judgment and his basic character. Unless Judge Cox has some extraordinary explanation he has not shared with me, this all convinces me that Cox should not be a judge. Our justice system works only because citizens believe it is basically fair. This behavior by Cox, whether done out of ignorance or arrogance, damages that public trust in the judicial system and for that, he should be held accountable.
Stevens Represented Clients Before Judge Cox While Stevens Was Representing Cox
Mark Stevens apparently does most of his legal work on court appointments for criminal defendants. Stevens represented criminal defendants before Judge Cox during the same time that Stevens was working as the lawyer for Cox. Judge Cox appointed his lawyer, Mark Stevens, to represent defendants in thirteen criminal cases in his court during the period of time that Stevens represented Cox. Click here to see the notices of appointment when Cox appointed his own lawyer to handle criminal cases in his own court. Stevens was also allowed to keep working on another four other criminal cases that Cox appointed Stevens on before Stevens was Cox's lawyer but which were finalized during the time Stevens was representing Cox. Those cases were finalized after Stevens became the judge's attorney.
In one of those criminal cases, Cause No. 14CR1889, on July 16, 2014, Judge Cox appointed Stevens to represent a man accused with sexual assault of a child and other crimes. Stevens filed a motion to dismiss the sexual assault charge and on November 25, 2014, AFTER Stevens became Cox's attorney, Cox presided over a contested hearing between Stevens and the District Attorney's office. Contrary to what Stevens wrote me in his response to my draft article, Cox allowed Stevens to argue a contested motion before him. I have ordered a transcript of that hearing. Stevens billed the county on that case 1.5 hours on November 15, 2014 for:
11.25.14 1.5 Preparation and Hearing on Motion to Dismiss. Motion overruled except that Jude Cox grants reques to Seal the instrument filed 9.1.14.
Click here to see the actual bill which Stevens submitted, Judge Cox approved and the county paid on this case (note the heavy redaction by the county legal department on this document I obtained via a Public Information Act request). This billing by Stevens is very significant because it proves that Stevens presented a contested motion to Judge Cox at a time when Stevens was representing Cox.
I know that in twelve of those criminal cases, Judge Cox approved the fee requests submitted by Stevens.
Click here to see twelve of the approved pay vouchers signed by Cox for Stevens at a time when Stevens was representing Cox. This means that Cox appointed his own lawyer to handle criminal cases in his court and Cox approved his own lawyer's fees to be paid by the county at a time when Stevens was giving the judge discounted or free legal services. It would have been very easy for Judge Cox to have selected another lawyer when Stevens' name randomly came up in the computerized "wheel" and Stevens certainly could (should) have declined the cases as long as he was representing Cox.
Mark Stevens had this to say about the criminal cases he handled before Judge Cox when Stevens was representing Cox:
In Criminal Cases, I have routinely transferred any case out of Judge Cox's court if it appears to be contested beyond a plea bargain. I[n] cases where a plea bargain is reached, I will present the plea bargain on the record with the court report, and inform all concerned, and especially the accused, of my representation of Judge Cox and the fact it will not be factor. In any such case, both the accused and the prosecutor lodge no objections.
First, that is simply not true. In Cause No. 14CR1889, Stevens did present a contested motion to dismiss to Cox in a criminal case. In any case, a criminal defendant in front of Cox is not going to complain that his lawyer is also the judge's lawyer. Does Stevens really expect a young assistant district attorney who spends his or her entire day in front of Judge Cox to object to Stevens representing the defendant? In the discussion of the ethical rules and criminal statute described in this article, it does not matter if the defendant or D.A. does not object to Cox letting his own lawyer practice in his court. Moreover, while I doubt it is true, if the assistant District Attorney in Cox's court agreed for the judge's lawyer to present criminal cases to Cox, then the District Attorney's office is partially complicit in the ethical misbehavior described in this article. That is another reason for Mr. Roady's office to be recused and an independent prosecutor appointed.
I am still researching whether Stevens did have criminal cases transferred out of Cox's court and I am requesting transcripts of plea bargains Stevens did present to Cox while Stevens served as Cox's attorney. It should be noted that judges can reject plea bargains, so a "deal" between a criminal defense lawyer and the D.A. is not always automatically accepted.
Stevens had this to say about the court appointment fees that Cox awarded Stevens while Stevens was also Cox's lawyer:
Recently, you advised of fee statements in five criminal cases in Judge Cox's court. If there was any benefit to me or other impropriety, I fail to see it. The amounts were trivial. Indeed, in four of the cases, the amounts were less than the $196 (i.e., 3.0 hours at $66 per hour) than an attorney may charge without documentation in a simple plea. The only case that exceeded that amount ($323.40) was hardly munificent, and under the governing statute a judge has little or no discretion to reject or modify a fee request without substantial reason, such as genuine suspicion that the attorney is padding his or her claims of time spent.
First, it is presumably 17 cases, not five (13 where Stevens was appointed while representing Cox and another four that were finalized when Stevens was Cox's lawyer). Second, the ethics rules and criminal statute discussed in this article do not depend on how much a lawyer gets paid on a case before a judge the lawyer represents or has given a gift to. The relatively small fee amounts involved do not in any way excuse the fact that Judge Cox was ruling on fees for his own attorney or excuse the fact that Cox was receiving reduced fees or no charges for work that same lawyer was doing for him. Third, Judge Cox does sometimes reduce the fee requests submitted by lawyers he appoints for indigent criminals. Stevens' reply does not address the real issues this article raises about him working as a lawyer in front of Judge Cox while he represented Cox at a free or reduced rate. Cox could have easily asked another judge to review and approve Stevens' fee requests.
Cox Granted Stevens A Civil Judgment While Stevens Was Cox's Attorney
Judge Cox also heard and decided a civil case presented by Mark Stevens during the time that Mark Stevens was representing Judge Cox in his lawsuit against Judge Henry. Stevens began representing Cox at least by June 9, 2015, when Stevens filed the lawsuit for Cox against Judge Henry in Cause No. 15CV0583. On August 11, 2015, Stevens filed a lawsuit in Cause No. 15CV0829 that was assigned to the 56th District Court - Judge Cox's court. On April 19, 2016, Stevens filed a motion entitled "Motion for Default Judgment" in which he asked for his client to recover $140,000 owed her on a promissory note and an extra $28,000 for attorney's fees (which would presumably go to Stevens). Even though the case was pending in Cox's 56th District Court, Mark Stevens typed at the top of his motion that the case was in the 10th District Court. On April 28, 2016, Stevens filed a "Notice of Hearing" that says:
PLEASE TAKE NOTICE that hearing on Plaintiff's Motion for Default Judgment is set to be heard before the 56th District Court of Galveston County, Texas, 600 59th Street, Third Floor, Galveston, Texas 77551 on Thursday, June 2, 2016 at 10:00 a.m.
Stevens again typed at the top of this court document that the case was in the 10th District Court when it was really in Judge Cox's 56th District Court. Mark Stevens, in his written reply to a draft of this article, says that it was "probably a typo" that he kept putting the 10th District Court instead of the 56th District Court in the style of these pleadings and order he filed. Click here to see the pleadings filed by Stevens in this civil lawsuit before Judge Cox.
On June 2, 2016, there was a hearing and Judge Lonnie Cox signed an "Order Granting Default Judgment" which awarded Mark Stevens' client $175,700. Click here to see that default judgment and click here to see the transcript from the court reporter for that hearing. At that hearing, Stevens appeared before his client, Judge Cox, and presented a case for his other client, who was awarded $175,700 by Judge Cox. This was a default judgment, meaning that the defendant in California never filed an answer and was not in court to defend himself. Stevens did not say anything on the record about the fact Judge Cox was then his client and Judge Cox did not mention it either.
On June 2, 2016, when Cox granted the civil judgment for Stevens' client, Stevens was still representing Judge Cox in his lawsuit against Mark Henry.
Stevens says in his written response to this article that he waived attorney's fees on the record at the hearing on default judgment in the June 2, 2016 hearing (which is true). Stevens says Cox awarded Stevens' client,"solely the amount borrowed $140,000, plus 5½% interest to maturity, plus contractual ten percent per annum thereafter on all unpaid sums." Stevens in his reply states, "The judge did not 'give' me or my client anything." Actually, Mr. Stevens, Judge Cox heard your case when he should not have and he awarded your client a substantial sum of money.
In fact, there is always plenty for a good judge to do at a default judgment hearing, even if one side is not present to present a defense. The judge still has to make sure that the defendant was properly served with the lawsuit, that the court has jurisdiction over an out-of-state defendant (the man Stevens was suing lived in California), that the deadline to file an answer has passed, that the proper forms have been filed (certificate of last known address, etc.), and that the proposed judgment is supported by the petition and by the evidence. The judge must still decide how much money to award.
Ethically, Cox should not have heard Stevens' case (see below). Legally, it is not clear that Cox should have awarded Stevens' client the amount he did. The promissory note in question was not dated, so how could Cox know the date to start imposing interest? Also, it is not clear that Texas Law allows a note with 5.5% interest to charge a 10% late penalty. Tex. Finance Code Sec. 302.001(d) says a note that charges less than ten percent interest can only impose a "delinquency charge on the amount of any payment in default for a period of not less than 10 days in an amount not to exceed the greater of five percent of the amount of the payment or $7.50." I do not do banking or collections work, but this law seems to suggest that the ten percent late penalty in this note that Judge Cox allowed exceeded the amount allowed by Texas law. Even if you do the math the way Stevens said he did, you get a different amount owed. The real point is the Judge Cox actually heard evidence, made a ruling and then awarded Stevens' client exactly what Stevens asked for in a situation where it is not clear at all that the amount awarded was correct. This might not be a big deal except for the fact that Stevens was at the time also serving as Judge Cox's lawyer and charging a big discount and doing some legal work for no charge; all of which probably triggers a criminal statute that is discussed at length below.
Stevens said this about this civil case in reply to a draft of this article I shared with him:
The Brady v. Howard case was a default judgment and thus was uncontested. When a defendant does not file an answer, all allegations - including those establishing liability - in the plaintiff's petition are deemed admitted except for the amount of unliquidated damages [citation omitted]. There was no contested issue about the attorneys fees or anybody's rate of attorneys fees because, as the transcript clearly shows at pp 6-7, attorney's fees were waived with the specific permission of the Plaintiff. Default motions are ministerial and the judge has no discretion.... The sums awarded were solely the amount borrowed $140,000, plus 5 ½ percent interest on maturity, plus contractual ten percent per annum thereafter on all unpaid sums. The judge did not "give" me or my client anything.
I have routinely transferred all of my civil cases - which are usually contested by a defendant's filing an answer - out of th 56th to avoid any appearance of impropriety. Most recently, see 17CV0726, Dolores Howard v. Eddy Gorman, et al, which was transferred at my suggestion to the 10th District Court shortly after the case commenced.
Stevens is correct. Cause No. 17CV0726 was transferred by Judge Cox out of his court because of a "conflict of interest" on September 13, 2017 after Stevens was paid by Cox and stopped being Cox's attorney. On my own, I found another case, Cause No. 15CV0729, that Stevens filed in July 2015, a month after Stevens filed the lawsuit for Judge Cox. That case was transferred by Judge Cox to another court because of "conflict of interest." This is exactly what should have been done with the Brady v. Howard case discussed above. Default judgment cases may be "uncontested" in the sense that there is not someone on the other side in court, but not all default judgment requests are granted and the judge still has to decide how much in damages to award. It is still a court case that requires a judge's ruling. Most significantly, the ethics rules and criminal statutes discussed below apply whether or not a lawsuit is contested.
Stevens Represented Cox for a Ridiculously Low Discounted Hourly Rate
Mark Stevens charged Judge Cox $66 per hour to represent Cox in the lawsuit against Judge Henry. This is what Stevens told me in his written response to a draft of this article:
I have often told people that Cox v. Henry was fun - and I mean that. True, I earn my living practicing law, but I long ago realized [it] was not my karma to make a fortune at it. If I had done the case pro bono and paid all of the out of pocket expenses I would have considered myself well compensated.
Stevens sent me a copy of his bill for his work to Judge Cox. This was never produced in discovery in the case against Judge Henry and I doubt I would have ever seen it if Stevens had not shared it with me. Click here to see Stevens' bill. Apparently, there was no written contract between Stevens and Judge Cox, even though the ethics rules for Texas lawyers strongly suggest there be a written contract in all cases where the lawyer does not customarily represent the client.
Stevens has on numerous occasions represented to Galveston courts that his usual hourly rate is $150 per hour. For example, in cause no. 15CV0344, Stevens filed a sworn affidavit under penalty of perjury which stated, "I charge Mr. Wood on an hourly rate of $150 per hour...I am familiar with the usual, customary and reasonable charges for attorneys fees in Galveston County, Texas and [I] believe that the rate of $150 per hour is at or below the prevailing rate for an attorney of my experience." In at least three other cases in Galveston County, Stevens filed designations of expert witnesses in which he stated that his hourly rate of $150 per hour is reasonable. Click here to see these documents where Stevens says his normal hourly rate is $150 per hour. Recently, in the case where Bonnie Quiroga is suing the county and Mark Henry, Stevens told the court that he is charging Ms. Quiroga $125 per hour. So, Ms. Quiroga gets a 16% discount from Stevens' normally hourly rate while Judge Cox was given a 56% discount.
I have been a lawyer for a few years less than Stevens and I charge my clients in civil cases $400 per hour. I charge $125 per hour for my paralegals and $75 per hour for less experienced legal assistants and $250 for my firm's newest attorneys. The $66 per hour that Stevens charged Judge Cox is a small fraction of what lawyers in Galveston County normally charge per hour in civil cases.
Stevens Did Not Charge Judge Cox For A Substantial Part of His Legal Work
Mark Stevens' own itemized bill for his client, Judge Cox, proves that Stevens did not charge Judge Cox for a substantial part of the legal work Stevens did for Cox. There is a big difference between giving a client a discount on the lawyer's hourly rate and not charging at all for work done. Below, I provide five of many examples of work Stevens clearly did for Cox which are not reflected on the bill Stevens prepared for Cox.
Stevens represented Judge Cox in a very complex and unusual case. This was not a routine traffic ticket or uncontested divorce. The dispute between the judges and the county commissioners over control of justice administration staff involved unique constitutional and legal issues and there were no standard forms to make the lawyers' work easier. Stevens filed a lawsuit for Cox against Henry, got a temporary injunction, conducted an all day hearing, responded to petitions for mandamus and then appeals in the Court of Appeals and Supreme Court and filed a motion for contempt against Henry. The work Stevens did for Cox involved a ton of research and writing (and lots of meetings with Cox and other judges opposed to Mark Henry - before whom Stevens also practices). This is one reason why Mark Henry's attorneys charged $1.3 million - this was an important, unusual and hard case.
Stevens did in fact bill his client, Judge Cox, for a lot of the work Stevens did on the case. For example, Stevens' bill for Cox shows this billing on two pleadings filed by Stevens for Cox with the Court of Appeals:
Stevens, on July 27, 2015, filed an "Objection to Referral to Mediation" and on August 4, 2015, Stevens filed an "Objection to Motion to Abate, etc." which match his billing on those two documents. That is how a lawyer's bill should be - if a document is prepared and filed with a court, the time spent by the lawyer on the document should be shown on the lawyer's bill to the client.
On August 20, 2015, Stevens filed for Judge Cox an "Objection to Second and 'Final' Motion to Extend Time and Renewed Motion to Enforce Temporary Injunction Under TRAPS 29.3 and 29.4." It does not appear that Stevens billed Cox for his work on this motion filed August 20, 2015:
On January 18, 2016, Stevens filed with the Texas Supreme Court a "Reply to the Response in Opposition to Motion to Refer to the District Court Under TRAP 29.4." Again, it does not appear that Stevens included any work on this motion in his bill to Cox (but he did bill for a motion he filed on January 11, 2016 that had to be amended and re-filed the same day):
On October 25, 2016, Stevens filed with the Texas Supreme Court an "Objection to October 24 Request for Extension for Filing Reply Brief." Again, it does not appear that Stevens charged Cox for his work on that filing, which had to have been done on October 24 or 25 since he was responding to something Henry's lawyers had filed on October 24.:
On April 18, 2016, when Mark Henry first appealed to the Texas Supreme Court, Stevens filed a 54 page "Response of the Hon. Lonnie Cox to Petition for Review." Click here to see this lengthy and (for Cox) very important filing that must have taken Stevens a long time to research and write. Stevens did not charge Cox for his work on this response, which must have taken many hours to prepare:
After oral arguments before the Texas Supreme Court, Stevens filed a post-submission brief for Cox on March 14, 2017. Stevens clearly did not bill Cox for the work on that filing:
At the very end of the case against Mark Henry, on May 23, 2017, Stevens filed a motion to dismiss for Judge Cox. Stevens did not bill for preparing that motion.
There is other legal work that Stevens did for Cox that Stevens did not bill for. Attorneys who receive a filing from the opposition, almost always bill their client for the time spent reviewing what the other side filed with the Court. This is actually important work because the lawyer must decide if he must file a response and decide how the new filing might affect the case. I certainly bill my clients for time spent reviewing pleadings and motions received from the other side and Judge Henry's lawyers did as well. Stevens simply did not include this work in his bill. Stevens also did not bill Cox for the approximate eight hours Stevens spent driving to and from Austin in March 2017 when oral arguments were presented to the Texas Supreme Court. Lawyers almost always bill clients for out-of-town travel. Stevens included the $169 hotel charge and $25 for parking in Austin but not for his travel time or travel expenses (air fare or gas).
In other situations, lawyers are free to not charge clients for some of their work and I certainly do that frequently. However, the fact that Stevens clearly did not charge Judge Cox for substantial amounts of legal work becomes very important because Stevens at the same time was appearing in front of Judge Cox on other cases and it is a crime for a judge to accept a "benefit" from a person the judge knows is interested in or likely to become interested in any matter before the judge.
Judicial Ethics: No Gifts to Judges and
Judges Cannot Allow Their Lawyer to Practice in Front of Them
A judge should not hear a case presented by a lawyer (or law firm) who is at the same time representing the judge in a pending case. Imagine if you were getting sued by a neighbor and you showed up in court and realized that your opponent's lawyer is at the same time the lawyer for the judge who will decide your case. That would not seem fair and it would make you question the fairness and integrity of the judge, which is why the Texas Rules of Civil Procedure and the Texas Code of Judicial Conduct would require the judge to recuse himself and take himself off the case. That is exactly what happened in the case of Monroe v. Blackmon, 946 S.W.2d 533 (Tex. App. - Corpus Christi 1997)(orig. proc.). There, the judge was represented by a law firm in another case and that same law firm represented a railroad as a defendant before that same judge. The Court of Appeals granted a writ of mandamus and ruled that the situation was one where the judge's "impartiality might reasonably be questioned." Thus, Texas Rule of Civil Procedure 18a(2)(a) required the judge to take himself off the case so that he was not hearing a case presented by lawyers who were at the same time representing the judge in another case.
The Texas Code of Judicial Conduct states:
Canon 1: Upholding the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.
Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's Activities
A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow any relationship to influence judicial conduct or judgment....
Canon 3: Performing the Duties of Judicial Office Impartially and Diligently
...B. Adjudicative Responsibilities.
(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.
Cox did not avoid the appearance of impropriety and he certainly did not promote public confidence in the integrity and impartiality of the judiciary when he allowed his own lawyer to practice in his court.
If I usually charge $400 per hour and I agree to represent a judge for $200 per hour, that is a "gift" to that judge, just as if I were to sell a house worth $150,000 to a judge for $66,000. If I give the house for no charge to the judge, I certainly have given the judge a gift. It surely was a "gift" for Stevens to do work on Cox's case that Stevens did not charge for.
The Texas Canons of Judicial Ethics in general forbid gifts to judges. Canon 4(D)(4) lists the gifts a judge may accept and this gift from Stevens is not one of the accepted categories. The rule states, "(4) Neither a judge nor a family member residing in the judge's household shall accept a gift, bequest, favor, or loan from anyone except as follows:...' None of the exceptions listed would apply to Stevens representing Judge Cox.
Texas Judicial Ethics Opinion 215 (1997) makes it very clear:
Canon 4D(4)(c) clearly states neither a judge nor his family may accept gifts from anyone whose interests have come or are likely to come before the judge. Therefore, a judge may not accept gifts from lawyers or parties who have come or might come before the court.
Texas Judicial Ethics Opinion No. 216 states as follows:
Opinion No. 216 (1997)
QUESTION: Would it be proper for a judge who is hearing a case out of county to stay in the lake house of a lawyer who often appears in his court? The lawyer has no connection with the out of county case. Would it make any difference if the county paid the attorney the same rate that would be paid if the judge stayed in a motel?
ANSWER: No, a judge may accept gifts or hospitality only under very limited circumstances as described in Proposed Opinion No. 215. This use of the lake home is specifically disallowed in Canon 4D(4)(c), i.e., a judge may not accept the gift from a person whose interests have come or are likely to come before the judge. If the county pays for the judge's stay, the judge could avoid ethical violation, but only if the payment is commensurate with the market value of the accommodations and the rental is done regularly and not just to the judge.
If a lawyer cannot let a judge stay in his lake house for free, how can a lawyer give a judge a fee reduction of over 50% or do legal work for the judge and not charge for it?
These ethics rules do not depend on the amount or value of the gift given to a judge. A $75 pass to Top Golf is just as unethical as a $75,000 Lexus if given to a judge by a lawyer who appears in that judge's court. Gifts to a judge are unethical no matter how long the lawyer has been friends with the judge if the lawyer is appearing in the judge's court.
In summary, Texas law makes it clear that a judge should not hear a case presented by a lawyer who is at the same time representing the judge in another case. In that situation, the judge should recuse himself. The ethical rules that control a judge's conduct require the judge to avoid even the appearance of impropriety. The ethical rules do not allow any relationship to influence the judge's conduct. The ethical rules say that a judge should not hear a case if "disqualification is required or recusal is appropriate."
In Texas, It is a Crime for a Judge to Accept a "Benefit" From Someone With an Interest in a Case Before the Judge
To be clear and fair to Judge Cox, there is no appellate case that specifically says that it is a crime for a judge to let a lawyer practice in his court who is at the same time representing the judge for a discounted or free rate. But, the Texas Penal Code does make it a crime for a judge to accept a "benefit" from any person the judge knows is interested in or likely to be interested in a case before that judge. It appears to me that a lawyer giving a judge his legal services for free or at a discount is a "benefit." This is what the law says:
Texas Penal Code
36.01(3) "Benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct and substantial interest.
Sec. 36.08. GIFT TO PUBLIC SERVANT BY PERSON SUBJECT TO HIS JURISDICTION.
(e) A public servant who has judicial or administrative authority, who is employed by or in a tribunal having judicial or administrative authority, or who participates in the enforcement of the tribunal's decision, commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any matter before the public servant or tribunal.
. . . .
(h) An offense under this section is a Class A misdemeanor.
Smith v. State, 959 S.W.2d 1 (Tex. App.-Waco 1997, pet. ref'd) discusses at length the meaning of "benefit" in Sec. 36.08, including the legislative history of this criminal statute. The court of appeals in that case concluded that a New York book store company provided a "benefit" to a Texas A&M official when the company paid for the official's air fare, lodging and entertainment on trips to New York City to negotiate an extension of the company's contract with the university. The court explained the definition of "benefit":
Black's Law Dictionary defines "pecuniary" in part as something "which can be valued in money." BLACK'S LAW DICTIONARY 1131 (6th ed. 1990). Webster's Collegiate Dictionary defines the verb "value": "to estimate or assign the monetary worth of...." WEBSTER'S COLLEGIATE DICTIONARY 1305 (10th ed. 1993). "Price" is a synonym for "worth." RANDOM HOUSE, ROGET'S THESAURUS 678 (2d ed, 1995).
Thus, as opposed to Smith's proposed interpretation,
a "benefit" could also be anything to which a price can be assigned.
If Mark Stevens provided Judge Cox an $84 per hour discount, then that would seem to be a "benefit" as defined in this criminal statute because it is something to which a price can be assigned. If Stevens gave Cox free legal work that he did not even bill for, that would also be a "benefit." Even if you accept the number of hours that Stevens billed Cox for, he gave Judge Cox a discount of $20,412 ($150 normal hourly rate less $66 he charged = $84 x 243 hours billed by Stevens = $20,412). It seems almost certain that Stevens did many more hours of legal work for Cox that he did not even charge Cox for. All of this is something to, "which a price can be assigned," so it would seem to meet the definition of "benefit" in the criminal statute.
If Stevens' work at a discount or for free was a "benefit", then the Texas Penal Code may apply if Cox knew Stevens was interested in any case before Judge Cox. Cox clearly knew Stevens was appearing in front of him when he appointed Stevens on at least 13 criminal cases. Stevens had a financial interest in those criminal appointments because his client, Judge Cox, approved his fees that were paid by the county. On November 25, 2014, Judge Cox clearly knew Stevens was his lawyer when Stevens appeared in front of him arguing the motion to dismiss for the man accused of sexual assault on a child. Cox would have known that Stevens would be paid for that work in his court and thus had a financial interest in the matter. In June 2016, Judge Cox obviously knew that Mark Stevens was his lawyer when he appeared in front of him in the above civil case where Cox awarded Stevens' client $175,700. Stevens, at least in his client's petition and motion for default judgment, had a financial interest in the civil case he presented to Judge Cox because he was seeking an award of attorney's fees (although Stevens waived attorney's fees at the hearing).
Mark Stevens should have known that he could not provide a gift or benefit to a judge who hears his cases. Texas Penal Code Sec. 36.09 states:
Sec. 36.09. OFFERING GIFT TO PUBLIC SERVANT.
(a) A person commits an offense if he offers, confers, or agrees to confer any benefit on a public servant that he knows the public servant is prohibited by law from accepting.
(b) An offense under this section is a Class A misdemeanor.
In fairness to Cox and Stevens, Texas Penal Code Section 36.10(a)(2) provides a defense to prosecution where the "benefit [is] conferred on account of ... a personal, professional, or business relationship independent of the official status of the recipient." TEX. PENAL CODE ANN. § 36.10(a)(2). I expected Stevens to say that he gave the fee discount to Judge Cox because he was a fellow member of the bar or a long time friend. But, Stevens did not even try to make that argument in his lengthy written response to the draft article I shared with him. Stevens instead wrote that "the Cox v. Henry case was downright simple," and that he considered Judge Cox's financial circumstances (Cox makes over $168,000 per year). No person who looks at all of the legal filings and briefs in the Cox v. Henry case could accurately say it was a simple case. Lawyers routinely charge their full hourly rates to clients who earn a lot less than Judge Cox. Stevens' response to the suggestion that criminal laws may have been violated is weak, absurd and does not at all address the facts described above. Click here to read Stevens' full response to me.
Stevens' written reply to me should be important evidence if any criminal charges ever arise from this situation primarily because of what Stevens did not say. The decision whether to bring criminal charges, should be decided by a neutral prosecutor or judge or jury and not the current Galveston County District Attorney, who has an obvious conflict of interest because his office presents hundreds of cases in Judge Cox's case every year.
Possible Campaign Finance Violations
Judge Cox did not pay his attorney Mark Stevens "out of his own pocket" as Cox has repeatedly told local Republicans and The Galveston Daily News. In his most recent campaign finance report, Cox reported a payment of $17,587.18 to Mark Stevens on June 9, 2017 for "legal services." Click here to see the campaign finance report.
The problem for Cox is that by reporting his payments to Stevens on his political finance report, Cox probably should have reported an "in-kind" donation from Stevens because of the discount on his legal services. Texas politicians are required to report in-kind donations, which include discounted fees for services to a campaign. In 2008, the Texas Ethics Commission ruled that Supreme Court Justice Nathan Hecht violated the law when he paid lawyers from campaign funds and then those lawyers gave him a $163,226 discount (34% off the full bill). The Ethics Commission ruled that the law firm's discount was an in-kind contribution that should have been reported and which exceeded the legal limits on contributions to a judge. Justice Hecht was assessed a $29,000 civil penalty. Hecht filed a lawsuit to appeal the fine. Hecht's lawsuit was not pursued by the Republican Attorney General and it lay dormant for six years and then Hecht settled the case by paying $1,000 without admitting he was at fault. Click here to read the ruling of the Texas Ethics Commission.
Just like Justice Hecht, Cox paid his lawyer from his campaign contributions. Just like Hecht, Cox received a big discount on his legal fees. Like Hecht, Cox did not report the in-kind contribution from Stevens and the amount of the in-kind contribution exceeds the legal limit on how much can be donated to a Galveston County District Judge.
It appears that Judge Cox may have violated campaign finance laws in at least three respects: he accepted a campaign contribution that exceeds the $2,500 per person limit for judicial races in Galveston County (Election Code Sec. 253.155); he accepted an in-kind campaign contribution outside of the period when a judge up for election in 2016 and 2020 can accept contributions (Election Code Sec. 253.153); and he failed to report the in-kind contribution of Stevens (Election Code Sec. 254.031). It is a crime (Class A misdemeanor) for an elected office holder to omit from his campaign finance reports contributions that he was required to disclose (Election Code Sec. 254.041).
My reputation and business as a lawyer working in Galveston County are on the line when I suggest that a politically powerful, sitting judge may have violated ethics rules and even criminal laws. I have spent over 100 hours researching and writing this article and I have tried to be as thorough, accurate and fair as I can be.
I invited Judge Cox to respond to a preliminary draft of this article but he did not do so. I will be happy to publish in full any response Judge Cox sends me after he reads this final article. Cox's attorney, Mark Stevens, did send me a written response and his letter actually convinced me that a criminal investigation should be launched.
In America, we usually do not use the police or army to make people follow and respect the rulings of judges. People may leave divorce court or criminal court or civil court not liking the outcomes of their cases but the vast majority still respect and follow the judges' rulings because the public in general respects the judicial system and feels it is fair and honest. Our entire system of laws will crumble if the public loses confidence in judges. This is why ethics rules tell judges to avoid even the appearance of misconduct. This is why it is not ethical or legal for people who appear in front of judges to give them monetary gifts. This is why a judge cannot hear a case presented by a lawyer who is representing the judge in another case. These common sense rules of fairness are meant to preserve public confidence in our judges. Lonnie Cox certainly knew all of these rules and yet he still allowed Mark Stevens to practice in front of him and he still accepted discounted or free legal services from Stevens. I bear no ill will toward Judge Cox and I still like him on an individual level. But, Cox has let us all down and his actions should be investigated by an independent prosecutor and the Commission on Judicial Conduct.
Judge Cox can be really hard in his court on criminal defendants who have broken the law. Cox deserves the same treatment he dishes out in his court if it is determined that he has broken the law.
District Attorney Jack Roady should recuse himself because his office has many pending cases before Judge Cox. That is exactly what Roady did when I filed a criminal complaint against Judge Dupuy and a special prosecutor was appointed. That is what should happen with Judge Cox. This matter should be investigated and resolved before the March 2018 Republican primary. If Cox has not committed any crime (and I actually hope that is the case), then a neutral prosecutor or grand jury should decide that and the voters should know before the election. If Cox is charged with a crime, then the voters also need to know that before election day.
I do not publish this story about Judge Cox without thinking of the consequences and how it may effect Cox and Stevens. I do not enjoy embarrassing these colleagues I have known for many years. I realize this is a very serious matter. But, I have done this before and twice now my criminal complaints and stories in this newsletter resulted in judges being removed, indicted or resigning.
I give Cox credit for standing up for local judges against some overreaching actions of the county commissioner's court, but that does not excuse what Cox did in this situation. If Judge Cox has an actual explanation or defense to what I have written in this article, then he should share it. Attacking me for being a Democrat or having been Mark Henry's lawyer in the past is not an answer to these very serious allegations. I have supported many Republican judges because they work hard, and are fair and ethical. I care about the integrity and reputation of our judicial system regardless of politics. I challenge Judge Cox to show he does as well.
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 successful personal injury
attorney in Texas City be
fore 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. The Enos Law Firm serves clients in Galveston County, Brazoria County and Harris County, Texas.
Board Certified in Family Law, Texas Board of Legal Specialization
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