Issue No. 107
November 4, 2020
In this issue....

  • Election News: Four More Years of Judge Maldonado
  • What is Wrong With Judge Stalder?
  • Terisa Taylor Can Teach Us All How Not to Handle Illegally Obtained Electronic Evidence
  • Modification Basics: A New Important Case on Proving Change of Circumstances
The Mongoose is Back!

This newsletter was launched back in 2012 when I got fed up with judges who played favorites and did not follow the law. My colleagues thought I was crazy at first, but then The Mongoose began to get results. I helped force Family District Judge Denise Pratt to resign and persuaded an associate judge to quit. A judge in Galveston County was indicted because of perjury charges involving me and my newsletter and the judge was removed and replaced. I played investigative journalist and exposed a scandal involving a few connected lawyers making hundreds of thousands of dollars off CPS appointments and the entire system for court appointments was changed state-wide. I spent way too much time playing journalist, but I really believe this newsletter made a difference. Click here for an archive of past issues of this newsletter.

Then, the 2018 election swept out all of our family court judges in Harris County (including some darn good ones). The new crop of judges all started off working hard, trying to follow the law, and being fair to everyone. Suddenly, there was a lot less for me to write about and my law practice and personal life demanded more of my time. The Mongoose took a sabbatical for almost a year.

Now, too many lawyers and even a few judges have asked me to resurrect The Mongoose to address the very serious problem of Judge Barbara Stalder. My article below begins to introduce the many problems lawyers and litigants face in the 280th District Court. Sadly, I have concluded that Judge Stalder needs to step down or be removed or defeated in 2022.
I am Ready to Defend Democracy!

If Trump tries to steal the election in the courts and mass protests are needed to prevent a coup, I am ready. I bought a riot helmet and prescription swim goggles (for tear gas). I have a super heavy duty umbrella that can double as a riot shield. If Attorney General Barr deploys I.C.E. storm troopers to attack citizen protests, I plan to be on the front line!
I may not win every case (even if in my heart I expect to). 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. 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   
  Please forward this e-mail newsletter to everyone who cares about our family courts! 

Click here to see the archive of past issues of The Mongoose
Four More Years of Judge Maldonado
A blue tidal wave crashed on Harris County and Democrats swept the county despite repeated Republican efforts to suppress voting. Judge Julia Maldonado defeated Alyssa Lemkuil by 54.48% to 45.52% or 842,617 votes to 703,970.

Democrats swept all county-wide offices and as of this morning, the courts of appeals races for the 1st and 14th courts (which include Harris and nine other counties) are too close to call.

Republicans did much better than expected state-wide with Trump winning Texas and the GOP holding on to the Texas house.
What is Wrong With Judge Stalder?
Judge Barbara Stalder needs to resign or be removed or at least defeated for election in 2022. I question her fairness, her ability to follow the law, and even her mental stability and fitness to preside over hotly disputed, emotionally charged domestic violence cases. I do not make these statements lightly, but the evidence of Stalder's unfitness is overwhelming.

I call on Judge Julia Maldonado and the other family court judges to stop allowing the 280th to hear protective order cases when there is a pending divorce or SAPCR case in a family court. In my next issue, I will address how the law is being ignored because of an old order signed by Judge Doug Warne (then the presiding family district judge) that directs the clerk to file all protective order cases in the 280th.

Judge Stalder’s problems fall into several broad categories:
  • She is not conducting fair hearings and she appears biased
  • She does not display a judicial temperament
  • She sometimes does not follow the law or rules and she awards more relief than is being requested
  • She interferes too much in how lawyers present their cases and even in agreements between parties
  • Some of her communications about cases seem to be improper ex parte communications
  • She has lost control of her docket
  • She is not willing to work with or cooperate sensibly with other judges

In future issues, I will present many examples of the above behavior. Here are two cases where Judge Stalder behaved in a way no judge should ever act.

Judge Stalder Lost Her Cool, Kicked the Attorney Out of Court, and Continued With the Hearing

Stacey Valdez appeared before Stalder defending a man against a protective order application filed by the District Attorney. Valdez did not submit exhibits or a witness list electronically before the hearing and Judge Stalder announced that Valdez could not call any witnesses other than her client. When Valdez insisted on her right to call witnesses, Judge Stalder had Valdez and her client removed from the courtroom and Stalder continued the hearing without Valdez and her client. Click here to read the transcript of this hearing. The exciting part starts at page 61.

Click here to read the 280th Procedures (which do not mention a witness list at all) and click here to read the 280th Zoom Procedures. The Zoom Procedures do say, "Exhibits and witness lists (including any rebuttal or impeachment) must be submitted to the Court and Court Reporter ... Failure to efile your exhibit and witness list (including rebuttal) and send your exhibits to the Court reporter according to these rules will result (unless good cause is shown) the exclusion of said witnesses and exhibits." [sic - "in" is missing from this sentence]

There is no local rule, no provision of the Family Code and no part of the Rule of Civil Procedure which state that witnesses cannot be called if a witness list has not been provided 24 hours before a hearing. TRCP 166 applies to pretrial conferences and not to this situation. Taylor v. Taylor is an example of a family court judge being reversed when she prevented a father from calling any witnesses in a custody trial because the father had not provided a witness list at a pre-trial conference. Click here to read the case.

In protective order cases, there is no time for written discovery, so the attorneys often have no idea who the other side will call to testify until a witness list is shared the day before the hearing. However, the witness list really serves no other purpose other than making sure the court reporter spells the names correctly. It is very unlikely that the DA was prejudiced in any way because Valdez did not provide a witness list the day before the hearing.

Ms. Valdez should probably have been aware of the 280th's Zoom procedures and provided the witness list, but not allowing her to call any witnesses to defend her client seems excessive. What is clearly crazy is Judge Judge Stalder kicking the lawyer out of the hearing and then proceeding with the hearing without her. This is one of many situations in which Stalder overreacts and ignores basic fairness and common sense. A person defending a protective order is fighting for his or her basic rights to talk to who he wants to talk to, go where he wants to go, see his children, live in his own house or possess a gun. Those vital constitutional rights must be protected by due process and fairness.

Stalder also refused to allow the Respondent's criminal defense lawyer to sit in on the hearing or appear as co-counsel in this Zoom hearing.

At one point in this hearing, Valdez objected to a question of the applicant as it asked for hearsay and Stalder told her to stop interrupting the witness and to allow the witness to full answer before objecting to the question. When Valdez tried to say that is not how the rules of evidence work, Stalder threatened to fine her and then Stalder repeatedly told someone on the Zoom hearing to mute Valdez (pages 19 - 22 of the transcript). As Valdez insisted on her right to object to hearsay before the witness responded, Stalder threatened to report her to the State Bar. Stalder repeatedly allowed the applicant to testify about matters other people had told her or posted on social media over timely hearsay objections. A fair reading of this transcript reveals a judge who has no clue of what hearsay is or even how objections should be made.

In this case, Stalder granted the no-contact protective order for 10 years even though the transcript shows virtually no nonhearsay evidence to support her ruling. No other judge I have ever been in front of on a protective order case would have granted the relief Stalder awarded.

Valdez filed a motion for new trial and a motion to recuse, which Stalder granted without a hearing. The case was transferred to another district court and is still pending.

Judge Stalder Ignores the Law and Forgets She is the Judge and Not the "Victim's" Attorney.

I was personally involved at the very end of a protective order case in the 280th in which the female applicant decided to nonsuit her application for a protective order before the final hearing and just proceed with a pending divorce action. The law is clear, a person who files a civil lawsuit has the unrestricted right to dismiss her own case and the judge has a ministerial duty to dismiss the case if a notice of nonsuit is filed. It is equally clear that a judge may not participate in ex parte communications with just one party or attorney in a case.

This is the e-mail exchange directly from Judge Stalder to the attorney representing the female applicant.

E-mail from Judge Stalder to Applicant’s Attorney
Counsel: Why is this case being nonsuited?

E-mail from attorney to Judge Stalder:
Good Afternoon Judge Barbara, I was advised that Ms. S***’s husband filed a divorce lawsuit against her (even though she is currently pregnant). She hired a divorce attorney. The divorce attorney advised her to drop the PO and try to mediate the pending divorce. I filed the non-suit based on the strategy she has implemented with her divorce lawyer.

E-mail from Judge Stalder to Applicant’s Attorney:
That is not acceptable. Please give me the name and contact info for the divorce attorney. I do not play games with protective orders and they are not to be used as strategies in family law cases.  Rule 13 sanctions can be filed against all involved. Judge Stalder

In a later e-mail, Stalder had her court coordinator e-mail the applicant's attorney and forward a lengthy message from the judge in which Stalder questioned the divorce lawyer's ethics and the wisdom of her advice to her client.

Stalder then scheduled a sanctions hearing and ordered the woman’s divorce lawyer to appear and explain herself. The divorce lawyer consulted with me and I took over the applicant's case for a fee of one dollar. I was able to convince Stalder to simply dismiss the case and drop the hearing.

There at least five issues very wrong about Stalder's conduct in this situation:

  1. The respondent was a party to this case and the judge was engaging in an ex parte communication by emailing only the applicant's attorney in the case.
  2. It is grossly improper for the judge to e-mail a lawyer appearing before her on a case and question another attorney's ethics and legal advice to a party in that case pending before the judge.
  3. A judge cannot sanction a lawyer for giving a client advice to dismiss a case and the judge surely cannot require the attorney to appear in court to divulge her confidential communications with a client or explain her strategy.
  4. How can a judge on her own order a lawyer who is not a party or counsel of record in the case to appear and face possible santions with no written motion for sanctions on file? Was Stalder planning to question the lawyer and present the case for sanctions that she would be the judge over?
  5. Stalder should have known that a judge has to grant a nonsuit and that she had no say in a situation where the respondent had not yet filed any responsive pleadings or sought any relief. A plaintiff may take a nonsuit at any time before it has introduced all its evidence other than rebuttal evidence. Tex. R. Civ. P. 162. "If a claim is timely nonsuited, the controversy as to that claim is extinguished, the merits become moot, and jurisdiction as to the claim is lost." City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011); see also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (stating that a nonsuit "renders the merits of the nonsuited case moot"); In re Riggs, 315 S.W.3d 613, 616 (Tex. App.—Fort Worth 2010) (orig. proceeding) (stating that "[a] nonsuit extinguishes a case or controversy from the moment the motion is filed or when an oral motion is made in open court" and that "[i]f a defendant has no pending claim for affirmative relief, a trial court's refusal to grant a nonsuit violates a ministerial duty"). 

In this case, Stalder acted like she did not know the law and she acted as if she was the woman's attorney. She again ignored basic principles of due process and fairness. Ethically, the judge should not have been e-mailing directly to one attorney about the case. Sadly, this is not an isolated event and in coming issues, I will provide many more examples of astoundingly improper behavior by Judge Stalder. Please share your horror stories with me.
Terisa Taylor Can Teach Us All How Not to Handle Illegal Electronic Evidence
I have been lead counsel on a lot of appeals. I have argued before the courts of appeals from Houston to El Paso to Amarillo, the Texas Supreme Court, the Texas Court of Criminal Appeals, and the U.S. Fifth Circuit. I have handled appeals to the U.S. Supreme Court, although none were accepted. I think I am the most proud of the decision I received earlier this year from the Houston Fourteenth Court of Appeals.

Click here to read the majority opinion in Tolbert v. Terisa Taylor, which involves a father, Mr. Broome, and a mother, Ms. Robbins, involved in a child custody modification case before then Judge Sheri Dean. Terisa Taylor was Mr. Broome's lawyer. The opinion sets forth these facts:

The Robbins Parties assert that attorney-immunity does not apply to the conduct alleged in this case—alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute—because criminal conduct is “foreign to the duties of an attorney.”

In Plaintiffs’ First Amended Original Petition, the Robbins Parties allege the following facts regarding Taylor’s conduct:

• Between July 18, 2013, and January 11, 2014, the sister-in-law of Robbins’s ex-husband, Fiona McInally, received on her iPad text and email messages between Robbins and others.
• Plaintiffs’ confidential and personal communications were intercepted without the Plaintiffs’ knowledge or consent.
• Broome connected to his sister-in-law’s iPad and received Robbins’s communications.
• Broome shared the messages with his lawyer, Taylor.
• Taylor produced to Robbins’s attorney in the Modification Proceeding (“Robbins’s Attorney”) a compact disc containing data from this iPad showing that the iPad’s email settings had been changed to use Robbins’s personal email address and password as the “setting for incoming e-mails.”
• Robbins did not know that her text messages and emails were being intercepted until Taylor produced 617 pages of the Robbins Parties’ text messages to Robbins’s Attorney and told the attorney that Taylor and Broome were in possession of everything Robbins had communicated to others, including a nude photograph of Robbins that Robbins had sent to her boyfriend by text message.
• Taylor told Robbins’s Attorney that Taylor intended to use the photograph of Robbins’s breasts as demonstrative evidence in the jury trial and that Taylor would show the jury a poster-size photo of Robbins’s breasts.
• Taylor told Robbins’s Attorney to advise Robbins to sign an agreed order resolving the Modification Proceeding and agreeing that the only visitation Robbins would have with her daughter would be supervised visitation, otherwise this evidence would be used against Robbins.
• After Robbins refused to sign Taylor’s proposed order, Taylor filed a document in the Modification Proceeding entitled “Notice of Intent to Use Demonstrative Evidence,” in which Taylor, on behalf of Broome, stated that Broome intended to use at trial a “Power Point presentation and large photo board.”
• During the six months before February 5, 2014, Taylor had used information gleaned from illegally intercepted communications in the Modification Proceeding in several hearings and to conduct discovery.
• Broome disclosed the contents of Robbins’s intercepted electronic communications to Taylor, who used and disclosed these contents to the trial court in the Modification Proceeding and in the pleadings in the Modification Proceeding.
• Taylor or Broome provided the iPad to Pathway for examination.
• Broome obtained a court order “through his attorneys’ use of illegally intercepted communications on [the iPad].”

Attorney Terisa Taylor was sued for violating Texas Code of Criminal Procedure Sec. 18.20(16) and the Federal Wiretap Act. Taylor obtained a summary judgment from Judge Sheri Dean based on the doctrine of attorney immunity. The Court of Appeals agreed with me and held that lawyers are not immune from civil liability if they violate a criminal statute:

Attorney immunity is an affirmative defense that protects attorneys from liability to nonclients. The purpose of the attorney-immunity defense is to ensure loyal, faithful, and aggressive advocacy to clients. To be entitled to summary judgment, Taylor must prove that there is no genuine issue of material fact as to whether her conduct was protected by attorney immunity and that she is entitled to judgment as a matter of law.

The Texas Supreme Court recently affirmed that Cantey Hanger [Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)] controls our analysis of attorney immunity. Youngkin v. Hines, 546 S.W.3d 675, 681–82 (Tex. 2018). The Youngkin court recognized the breadth of the attorney-immunity doctrine yet made clear that the doctrine is not without limits. The Cantey Hanger opinion identified the following “nonexhaustive examples that may fall outside the reach of the attorney-immunity defense”: participation in a fraudulent business scheme with a client, knowingly helping a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client’s behalf, and assaulting opposing counsel during trial. All of these examples appear to refer to either non-litigation conduct or conduct not alleged to be fraudulent; thus, none of these examples appear to include fraudulent conduct while representing a client in litigation. The Youngkin court states that these examples are “nonexhaustive,” yet, as in Cantey Hanger, the supreme court did not articulate a legal standard for determining if conduct is not covered by the attorney-immunity doctrine. After listing the nonexhaustive examples, the Youngkin court ends by saying, “[t]hus, while we recognize that some fraudulent conduct, even if done on behalf of a client, may be actionable, [the plaintiff] does not allege any such behavior.” Simply put, the Youngkin court appears to have concluded that attorney immunity applied because the alleged conduct fell within the scope of the attorney’s representation of the client and did not fall within any of the examples listed in the Cantey Hanger opinion.
The Robbins Parties assert that attorney-immunity does not apply to the conduct alleged in this case—alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute—because criminal conduct is “foreign to the duties of an attorney.”
Taylor, instead, filed a traditional summary judgment relying solely on the affirmative defense of attorney-immunity. Taylor neither contested the facts pled nor did she provide any evidence or affidavits in support of her motion for summary judgment. Presuming that all facts alleged by the Robbins Parties are true and indulging all reasonable inferences in the light most favorable to the Robbins Parties, the Robbins Parties allege sufficient facts demonstrating alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute. Neither Youngkin nor Cantey Hanger involved alleged criminal conduct by an attorney. And, the Texas Supreme Court did not extend attorney-immunity to criminal conduct in either case.

A criminal violation of either statute would be “foreign to the duties of an attorney” and thus precludes application of attorney-immunity. We conclude the trial court erred in granting Taylor’s motion for summary judgment based on the affirmative defense of attorney-immunity.

(citations are omitted from the above quote).

Ironically, Terisa Taylor’s co-counsel in the Robbins child custody modification case, the notoriously ethical Ricardo Ramos, wrote a State Bar CLE article entitled “Operation Information Interception: When It’s Legal and When It’s Not” (36th Annual Marriage Dissolution Institute April 2013), and his paper said in part:

    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.  

   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.

This article by Mr. Ramos, who has had his own share of legal problems personally, uses identical language from an earlier blog post from the Austin law firm Noelke English Maples St. Leger Blair, LLP.

Click here to read an article I wrote on illegally obtained electronic evidence.

Terisa Taylor was not charged criminally for her conduct in the Robbins case and she apparently will try to appeal this decision to the Texas Supreme Court. Click here to read the dissenting opinion in this case, which I am sure she agrees with. Ms. Taylor denied she had done anything wrong before Judge Dean and she contended that the electronic evidence had not been illegally obtained.

Click here to read my brief in this case and click here to read Terisa Taylor's brief that provides her argument that she is immune from my civil suit.

The moral of this story for all family law attorneys is to be very careful about allowing your client to provide you electronic evidence (recordings, text messages, e-mails or computer files) which might have been obtained illegally. Do not use any such questionable evidence in your case unless you are very sure it was obtained properly by your client.
Modification Basics: A New Important Case on Proving Change of Circumstances
Click here to read an important new appellate decision from the Houston First Court of Appeals on the burden of proof in modification cases regarding changes of circumstances. In re A.T.E. involved a father who sought to modify a 2012 order that gave him supervised visitation because of his drinking. At the modification trial, the father showed that the child was older, both parents had remarried, he lived with a friend and he worked half the time in Saudi Arabia where alcohol was not allowed. The court of appeals held that the father had not met his burden to show that the modifications in visitation he wanted were related to the changes of circumstances since 2012. These quotes from this case explain the holding and remind us which changes in circumstances are not enough to justify modification:

To prove that a material and substantial change in circumstances has occurred, "the evidence must show the conditions that existed at the time of the prior order as compared to the conditions that existed at the time of the hearing on the motion to modify."

This Court has held that the substantial and material change that is relied on as the basis for modification must be material to the modification sought.
Identifying a change in one circumstance to seek a modification of another aspect of the custody arrangement improperly avoids the Legislature's
requirement that a substantial and material change be established to open the custody terms to modification. The requested modification must be "somehow connected to the changed circumstances" to permit reexamination of the custody terms. (stating, by example, that "a remarriage may require some changes but does not mean that the trial court may now modify other
provisions in the original divorce decree unrelated to the remarriage").

Generally, a child's aging is a contemplated event that will not constitute a
substantial and material change. New marriages may qualify if they are shown
to affect the parent-child relationship, but the mere fact of remarriage is not sufficient.

Lee did not demonstrate how his or Samantha's new marriages, even coupled with Anna's older age, supported allowing Lee unsupervised, overnight visits, including international travel.

Lee testified that he wanted a fuller relationship with Anna, with lengthier visits
and opportunities to travel together. But a parent's desire for a fuller relationship with a child is not a substantial and material change to warrant modification to remove a requirement that visits be supervised.
Thank you for your support! Together We Can Make Our Profession Better and Our Courts More Fair
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 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. The Enos Law Firm serves clients in Galveston County, Brazoria County and Harris County, Texas.
Greg Enos
Board Certified in Family Law, Texas Board of Legal Specialization
The Enos Law Firm

Click here to see the archive of past issues of The Mongoose