Issue: No. 64                                                                                                                   August 2, 2015
In this issue ....

Please Visit The Mongoose Booth in San Antonio

The Mongoose booth at the Advanced Family Law Seminar will offer free give-aways and sell t-shirts and my new book, Grandparents' Custody and Visitation Rights in Texas: 2015.  Please stop by and visit us!

What is The Mongoose?

I have published this newsletter via e-mail for over four years to educate family law attorneys and to promote reform of the family courts in and around Harris County, Texas.  This newsletter is sent via e-mail to over 3,000 attorneys and interested citizens, mostly in the Houston area, but I have subscribers all over Texas and as far away as France and Malaysia. 


Attorneys tend to be afraid of judges and suck up to them. It is very rare for lawyers to publicly criticize a judge because judges wield such great power in the cases they hear, especially in family courts. Everyone thought I was crazy when I started this newsletter four years ago and I began to point out how some judges were acting improperly or even illegally. However, this newsletter has now played a role in the resignation of two elected judges, a District Clerk and an appointed Associate Judge. I filed criminal complaints against two judges. One judge was indicted and removed and the other judge resigned to avoid indictment. Other judges are paying attention and changing policies that are simply not fair. Last year, I exposed a scandal involving appointment of attorneys in CPS cases in Harris County and judges almost immediately changed their behavior and the Legislature enacted new laws to solve the problem.   I have forced judicial candidates to return illegal contributions.   However, I always praise the many honest, hard working, fair judges we are blessed with.


Stories in this newsletter have been picked up by The Houston Chronicle and Houston television stations.  About once a year, I send a printed version of my newsletter to registered voters in Galveston County to educate them about what their judges are up to and it seemed to have a very real effect in the 2014 Republican primary runoff.  I am about to mail another print newsletter to let citizens know about an ridiculous on-going feud between judges and county commissioners in Galveston County.   


In my last issue, I wrote:


One focus of this newsletter over the coming months will be the problem of a FEW family court judges who come to work late or seldom show up to work.  Shame on a judge who does not leave her house and start her 30 minute commute until past 10 a.m. when she has a courtroom of nervous parents and expensive lawyers who all got up early and battled traffic to be in her court by 9:00 a.m.  I once staked out former Judge Denise Pratt's house with an investigator to see when she left for work and I am not above doing it again (imagine a video of a tardy judge juxtaposed with a photo of her packed courtroom on the local evening news!).  Most of our family court judges are conscientious and they work very hard, so it is a shame that a few seem so relaxed about the hours they put in for us taxpayers.  A judge who cancels a hearing with me because her staff says she had to leave for a family emergency and then posts happy photographs of the judge and her child leaving for a cross-country car trip seems to be begging for a headline story in this newsletter.


One attorney e-mailed me to say:


Hurrah on your article. It is difficult to explain and justify to clients why they must pay me my hourly rate to wait for HOURS because a family judge cannot be to court on time. Worse yet, clients generally have to take off work to be in court and few can afford to have their pay docked while they're waiting on the judge. Yes, there are times when not bring on time may be necessary. However, some make this a matter of routine.

At least one usually tardy judge in Houston started getting to work on time after my last newsletter, so I feel I have already accomplished something on this issue.

I do not expect to win every case.  I just want an efficient system in which my client gets a fair hearing before a judge who works hard, knows the law, and does not play favorites.  I also expect judges to appoint qualified amicus attorneys who zealously look after children (and actually visit the kids in their homes).   Is that asking too much?  Stay tuned.


Greg Enos
The Enos Law Firm     
 The Enos Law Firm
  17207 Feather Craft Lane, Webster, Texas 77598
  (281) 333-3030    Fax: (281) 488-7775
Web site:

  Please forward this e-mail newsletter to everyone who cares about our family courts!  
Click here for an archive of past issues of
The Mongoose

  VoidAttorneys Start To File Motions Arguing Orders Signed by Former AJ Robert Newey Are Void Because He Took Office After the Mandatory Judicial Retirement Age of 75
Click here to read a motion filed by attorneys David Brown, Taylor Imel (at KoonsFuller) and Sallee Smyth that asks Judge John Schmude to declare null and void three orders signed by Associate Judge Robert Newey because he was already age 75 when he took office.

As background, this is part of the article I published in my last issue:

Bob Newey was born on October 28, 1935.   He turned 75 on October 28, 2010.  Newey became Judge Denise Pratt's Associate Judge in January 2011 after his 75th birthday.  Newey became Judge Alicia Franklin's Associate Judge on  June 17, 2014, after his 75th birthday, but during Pratt's original four year term.  Judge Newey retired in December 2014.

The Texas Family Code says:

Sec. 201.002. QUALIFICATIONS. (a) Except as provided by Subsection (b), to be eligible for appointment as an associate judge, a person must meet the requirements and qualifications to serve as a judge of the court or courts for which the associate judge is appointed.

So, Judge Newey could only serve as the A.J. for a family district court if he had the qualifications to be a family district judge.  It does not matter that he was actually employed by Harris County - he had to meet the State's qualifications for a district judge.

The Texas Constitution, Article 5, Section 1-a says:

     Sec. 1-a. RETIREMENT, CENSURE, REMOVAL, AND COMPENSATION OF JUSTICES AND JUDGES; STATE COMMISSION ON JUDICIAL CONDUCT; PROCEDURE.  (1) Subject to the further provisions of this Section, the Legislature shall provide for the retirement and compensation of Justices and Judges of the Appellate Courts and District and Criminal District Courts on account of length of service, age and disability, and for their reassignment to active duty where and when needed.  The office of every such Justice and Judge shall become vacant on the expiration of the term during which the incumbent reaches the age of seventy-five (75) years or such earlier age, not less than seventy (70) years, as the Legislature may prescribe, except that if a Justice or Judge elected to serve or fill the remainder of a six-year term reaches the age of seventy-five (75) years during the first four years of the term, the office of that Justice or Judge shall become vacant on December 31 of the fourth year of the term to which the Justice or Judge was elected.

The Texas Legislature has not set the mandatory retirement age for judges, so the Constitution's age 75 limit is in effect.  The statute on the qualifications to be a district judge merely sets the minimum age at 25 but does not say a judge cannot serve past the age 75. Gov't Code, Sec. 24.001  ("A district judge must be at least 25 years old").

So, what is the effect if a sitting judge does not have the constitutional qualifications to be a judge?  There is no appellate case on a judge taking office after age 75, past the age when judges are allowed to serve by the Constitution (which is what the staff attorney told Judge Farr in the Spring of 2014).  There is no law on the subject and the Texas Constitution only addresses a judge turning 75 during his or her term.  However, there is a case involving a judge who failed to take the oath of office required by the Constitution.  In French v. State, 572 S.W.2d 934 (Tex. Crim. App. 1978), the highest criminal court in Texas noted that the Texas Constitution requires judges to take an oath.  The court held that any act by a judge who did not take the oath of office is void. "We are not dealing with the rights of a de facto judge but, rather, which right depends upon the taking of the oath of office prescribed by the Constitution, constituting a condition precedent to his right to act in that capacity."

So, if an order signed by a judge who did not take the constitutionally required oath of office is void, is an order signed by a judge who was past the constitutionally mandated retirement age of 75 when he first took office void?  No one knows and my bet is that the orders will not be found to be void.  Everyone, except maybe Judge Newey, assumed Newey had the legal qualifications to serve as Associate Judge and it looked to the world like he was an associate judge and he performed that office's functions.  Were it not for the French case, cited above, it is likely that Judge Newey would be considered a "de facto judge" and thus his actions could not be collaterally attacked. In Ryder v. U.S., 115 S.Ct.2031, 515 U.S. 177, 132 L.Ed.2d 136, (1995) the Supreme Court noted that the "de facto officer doctrine" confers validity upon acts performed by a person acting under color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient."  At least one Texas case has followed the "de facto officer" doctrine.  Pyote I.S.D. v. Estes, 390 S.W.2d 3 (Tex. Civ. App. - El Paso 1965, writ ref'd n.r.e.).  

The problem is that the French case held that a "judge" who did not meet the condition precedent for being a judge is not a "de facto" judge.  The Texas Constitution, Article V, Sec. 1-a says when judges must retire and declares their offices vacant at the expiration of the term during which a judge turns 75.  The provision does not explicitly say that a judge who is already age 75 cannot take office, whereas the Constitution does require every judge to take an oath of office (I am requesting verification that every family associate judge in Harris County since 2010 has signed an oath of office).   However, if a judge cannot serve past age 75 (or at least past the end of the term during which she turns 75), it is clearly implied that a judge who is already 75 cannot take office.

Any appellate court would want to desperately find some way to avoid invalidating the many orders Judge Newey signed, so my bet would be that some loop hole would be found to avoid a result that voided divorces and terminations and adoptions and changes of custody and increases of child support and contempt actions and monetary judgments.

The good news is that Pratt seldom let Judge Newey do that much on his own and she required that most of his orders be approved and signed by her (which at the time was one of the many complaints we all had about her).  Alicia Franklin wisely decided to also sign almost every order Judge Newey signed.  So, there are probably not that many orders that bear just Newey's signature.  But, there are some and apparently lawyers are working on motions and maybe a mandamus to challenge whether those orders are void.

The real moral to this story is that someone needs to always verify that Associate Judges are eligible to serve.  I am checking, but I have not found written proof that all current Associate Judges took oaths of office, so I wonder if some AJ orders could be challenged.
FBJudge Slaughter Fights for the Right of All Judges to Post Comments on Social Media About On-Going Trials  
Galveston County District Judge Michelle Slaughter appealed the April 2015 reprimand she received from the usually worthless Texas Commission on [Ignoring] Judicial Conduct.  Slaughter caused a mistrial in a criminal case because she was posting comments on Facebook about the trial as it was going on.  Click here to read an article about the two day trial Slaughter just went through before a three judge panel in Austin.

Judge Slaughter has tried to defend her actions with an argument that invokes the Constitution but defies common sense and the law.  Judge Slaughter claims she was merely exercising her First Amendment rights.  However, everyone's right to freely express themselves is temporary suspended or limited during a trial, including lawyers, witnesses, jurors and judges. If Judge Slaughter catches a juror tweeting about a trial, I wonder if she will have the same attitude and do nothing about it.   


Judge Slaughter appealed the Commission ruling to a special three judge panel and last month she was the subject of a two day trial in Austin. No matter how that ruling comes down, I know based on my 30+ years of legal experience that Slaughter acted terribly improperly and the posse of high priced lawyers representing her cannot excuse her conduct. Slaughter simply should have acted like the good judge she usually is  and paid attention to the trial instead of her social media accounts on her smart phone.  Any litigant, but certainly a criminal defendant, deserves a judge who does not make posts about an on-going trial, much less posts about matters that have not even been admitted into evidence in the trial.  


Of course, a judge has the general right to write whatever she wants to say on her Facebook page.  But, her duty as a judge and the ethical rules that govern her conduct properly prevent her from writing some things, especially those that threaten the integrity of the justice system or a litigant's civil rights.  Unfortunately for Judge Slaughter, the U.S. Supreme Court in April 2015 issued an opinion by Chief Justice Roberts that very clearly says that a state's judicial ethics rules can limit a judge's freedom of expression in order to protect public confidence in the judiciary.  Judge Slaughter's error of posting social media comments during a trial is not nearly as egregious as her on-going effort to try to excuse her behavior.  Slaughter is too smart to think that she has a First Amendment right to act unethically or violate a defendant's rights.   Slaughter is brazenly trying to mislead the public and overpower the Commission with her many expensive lawyers (who presumably are billing the good judge their normal hourly rates, since ethics rules generally prohibit a judge from accepting free or discounted legal services).   

linksUseful Links for Lawyers
Harris County Vacation Request Form
HBA Family Section Summary of Harris County Family Court Procedures

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Attorney Greg Enos has been through his own divorce and  child custody battle (he won) and understands  what his clients are going through.  Enos  graduated from the University of Texas Law  School and was a 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 and Harris County, Texas.  

Greg Enos

Board Certified in Family Law, Texas Board of Legal Specialization

The Enos Law Firm