Issue No. 99
August 19, 2019
The Mongoose hibernation is over and I have plenty to talk about!

In this issue....

  • Book Review: Great Book on PTSD
  • New Courts for Brazoria and Montgomery Counties
  • Tracy Good to Be New A.J. for Judge Dunson
  • Politics: Are You Ready for 2020?
  • Judges' Campaign Finance Reports
  • Useful Cases: Medical Issues

Time to Assess Our New Judges

Seven months is enough time to form reliable opinions about our new family court judges. On the whole, they are doing a really good job. The issues with cronyism, favoritism, and not showing up for work that I raised about some of their Republican predecessors do not seem to be a problem so far.  These new judges clearly care and are working hard to learn their very difficult jobs and to be fair. Over the next months, I will begin to make suggestions on how the judges overall, and a few in particular, could do better. Here are a few preliminary thoughts:

Good judges have self-doubts and the not-so-good judges feel they are doing a super job. Some of our new judges think they are doing okay whereas I feel they are really doing very well and much better than just "okay." These modest over-achievers are not totally sure how the family bar thinks about their work and they realize how hard it is to get honest feedback from butt-kissing attorneys. Paradoxically, a few judges who are not doing so well at all think they are doing a GREAT job. This brings to mind the Dunning-Kruger effect, which was first described Kruger and Dunning's 1999 study, "Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments." These psychologists were awarded the Nobel Prize for their study that found that people who do well at a task tend to underestimate how they have performed whereas those who perform really poorly tend to think they were doing much better than they were actually doing.    Forbes magazine in a 2017 article said, “If you’ve ever dealt with someone whose performance stinks, and they’re not only clueless that their performance stinks but they’re confident that their performance is good, you likely saw the Dunning-Kruger Effect in action.” Click here to read the Forbes article.

Some of our new judges are extremely knowledgeable, but a few seem to know very little about the rules of evidence or civil procedure. Examples from three different new judges I have seen or been told about are:

Just because a document was produced in discovery does not mean it is automatically admissible. A document produced to me by my opponent may be authenticated for me to use against the opponent, but production of a document does not make it relevant, remove hearsay or mean it is not overly prejudicial.

A judge cannot stop a hearing on non-parent standing and temporary orders after just a few minutes and simply say,"this aunt does not have standing and I am dismissing this case." The entire purpose of the hearing is to offer evidence to show standing and the threshold is very low at the preliminary stage per In re K.D.H ., 426 S.W.3d 879 (Tex. App. - Houston [14th Dist.] 2014, no pet.). This is THE case on the procedure of determining standing for non-parents and we all should be familiar with it.

Audio recordings of children in a custody case that were never produced despite specific requests and compel orders that are first disclosed at the pre-trial conference as marked exhibits should not be admitted because the judge says,“in this court, the child’s best interests always rule and I think the children’s voices should be heard.” This ruling ignores the fact that the Texas Rules of Civil Procedure apply even in child custody cases, see e.g., Flowers v. Flowers , 407 S.W.3d 452 (Tex. App.--Houston [14th Dist.] 2013), including the exclusion of evidence not produced in discovery. This ruling also skips over the hearsay rule, which would ordinarily prevent a parent's recording of their child from being used as evidence. Many judges would be more interested in why a parent is recording their children and then hiding the recordings for years.

I would need a lot of time to write about the many smart, wise rulings I have seen our new judges make and I want to emphasize that only a few family court judges are struggling with the law and rules. In coming months, I am going to focus on education rather than writing to embarrass specific judges about egregiously ignorant rulings. Each of us, judges and lawyers, should be learning every day and there is always a lot to discover and re-discover in our complicated field of law.

It is too soon for any of these judges to develop the tendency of being rude and snippy with attorneys in court.  A judge who demeans and belittles attorneys and is just plain rude and arrogant to lawyers is showing her lack of self-confidence and basic manners. The family bar should not suffer because of a judge’s self doubts. I plan to get real specific if this behavior continues.
I feel free to praise and to criticize Democrats, just as I did Republicans. I am particularly worried about the quality of service from the Harris County District Clerk's office lately and I would be very interested to hear from lawyers and paralegals if they are also experiencing LONG delays in getting service papers on new lawsuits or other problems. I am going to talk to our District Clerk and find out exactly how she has changed her office and what is being done to address lawyers' concerns.
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. 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.
Greg Enos
The Enos Law Firm
The Enos Law Firm
  17207 Feather Craft Lane, Webster, Texas 77598
 (281) 333-3030
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Book Review: Great Book on PTSD
Family law attorneys and judges should understand emotional trauma and Post Traumatic Stress Disorder (PTSD) because divorces and child custody cases often involve parents and children who suffer from PTSD (even if they do not realize it themselves). PTSD is not just a disease of war veterans, as it can arise from domestic violence, rape, or a terrible car wreck.

I am researching PTSD for my own writing project (involving a young army doctor injured in Afghanistan 140 years ago ) and I have read many books on the subject.

I think the very best book on PTSD is The Evil Hours: A Biography of Post-Traumatic Stress Disorder by David Morris.  Click here to order this book from Amazon.

Morris was a Marine Lieutenant who went on to be a journalist. Morris was embedded with American soldiers in Iraq and saw a lot of battle. He was injured when an IED blew up the Bradley Fighting Vehicle he was in. The book retells Morris’ struggles both with PTSD and with the Veterans Administration treatment system. His book summarizes the history of battle trauma and it helps the reader truly understand what it is like to suffer PTSD. Morris has written an extremely interesting mix of science, medicine, history and compelling personal memoir. The Evil Hours certainly provides us another reason to be grateful to veterans of the Vietnam War, because the Vietnam veterans movement forced the government and medical profession to recognize PTSD and treat it. However, the young men of the 1960's turned out to be not much different than those who survived the Civil War or the great world wars or even the ancient Greeks. This book also addresses PTSD suffered by victims of other sorts of trauma, such as rape.

Morris explains how PTSD changes how the brain perceives the world and even time. Here is an excerpt:

Later, I interviewed a prominent psychoanalyst, who told me that trauma destroys the fabric of time. In normal time, you move from one moment to the next, sunrise to sunset, birth to death. After trauma, you may move in circles, find yourself being sucked backwards into an eddy, or bouncing about like a rubber ball from now to then and back again. August is June, June is December. What time is it? Guess again. In the traumatic universe, the basic laws of matter are suspended: ceiling fans can be helicopters, car exhaust can be mustard gas.

Another odd feature of traumatic time is that it doesn’t just destroy the flow of the present into the future, it corrodes everything that came before, eating at moments and people from your previous life, until you can’t remember why any of them mattered. What I previously found inconceivable is now inescapable: I have been blown up so many times in my mind that it is impossible to imagine a version of myself that has not been blown up. The man on the other side of the soldier’s question is not me. In fact, he never existed. The war is gone now, but the event remains, the happening that nearly erased the life to come and thus erased the life that came before. The soldier’s question hangs in the air the way it always has. The way it always will.

Much of the book discusses the history of how battle trauma has been treated and the current treatment options available today. However, some of the book is simply poetic. Here is an example:

We are born in debt, owing the world a death. This is the shadow that darkens every cradle. Trauma is what happens when you catch a surprise glimpse of that darkness, the coming annihilation not only of the body and the mind but also, seemingly, of the world. Trauma is the savagery of the universe made manifest within us, and it destroys not only the integrity of consciousness, the myth of self-mastery, and the experience of time but also our ability to live peacefully with others, almost as if it were a virus, a pathogen content to do nothing besides replicate itself in the world, over and over, until only it remains. Trauma is the glimpse of truth that tells us a lie: the lie that love is impossible, that peace is an illusion. Therapy and medication can ease the pain but neither can suck the venom from the blood, make the survivor unsee the darkness and unknow the secret that lies beneath the surface of life.

Despite the quixotic claims of modern neuroscience, there is no cure for trauma. Once it enters the body, it stays there forever, initiating a complex chemical chain of events that changes not only the physiology of the victims but also the physiology of their offspring. One cannot, as war correspondent Michael Herr testifies in Dispatches, simply “run the film backwards out of consciousness.” Trauma is our special legacy as sentient beings, creatures burdened with the knowledge of our own impermanence; our symbolic experience with it is one of the things that separates us from the animal kingdom. As long as we exist, the universe will be scheming to wipe us out. The best we can do is work to contain the pain, draw a line around it, name it, domesticate it, and try to transform what lies on the other side of the line into a kind of knowledge, a knowledge of the mechanics of loss that might be put to use for future generations.
New Family Courts for Brazoria and Montgomery Counties
The Texas Legislature created a slew of new courts, including the 461st District Court for Brazoria County and the 457th in Montgomery County.

The 23rd District Court, where Judge Ben Hardin presides, will now include only Matagorda and Wharton Counties. The 461st District Court is created for Brazoria County as of September 1. The 461st will hear mostly family law cases and also hear felony cases, like Judge Randy Huffstetler does. Fortunately, the Governor appointed Patrick Bulanek to this new court, which will be on the fourth floor in what used to be Judge Hardin’s courtroom. Bulanek is so universally well liked and respected that not a single other attorney even applied for the appointment. Bulanek will be yet another judge who graduated from Texas Southern University. He received his J.D. there in 2006. Bulanek is married and has two young children. The only downside of his appointment is the effect on the dozens of cases where Bulanek was the court appointed amicus.

No final decisions have been made on how family law cases will be transferred to the 461st, but all of the 23rd’s pending criminal cases from Brazoria County will be transferred to the new court. The court’s current civil cases will be distributed among the other judges who hear civil matters. Currently, there are no plans to hire an associate judge for this new court.

Patrick Bulanek
The new 457th District Court in Montgomery County will be created as of September 1, 2019 and is likely to hear just civil cases. Once the new judge is appointed, it may mean that Judge Jennifer Robins of the 410th will only hear family cases. The board of judges should decide these issues this summer.
Tracy Good to Be New A.J. for Judge Dunson
Beginning October 1, 2019, Tracy D. Good will be the new Associate Judge of the 309th Family District Court. Judge Dunson’s new A.J. has 14 years of legal experience primarily practicing family law, particularly CPS cases and juvenile law. He ran for the 313th District Court juvenile bench in 2014 and again in 2018, when he lost in the Democratic primary.

Good is a native Houstonian who has been married to his wife for 29 years. They have adorable twin daughters. Good is a graduate of the University of Houston with a bachelor’s degree in accounting. Expect this new judge to be really good with numbers because he is a Certified Public Accountant and a Certified Internal Auditor. Good graduated from the University of Houston Law School in 2004 and was licensed in 2005. 

This new judge has a very quick mind and he certainly has experience in cases involving children (but not a lot of experience with divorce property cases). He is open minded and is blessed with an infectious smile and relaxed sense of humor - all of which he will need in his new job.

Shailey Gupta-Brietzke resigned as Judge Dunson’s AJ on July 15 after six and a half months of excellent service.

Tracy Good (unlike this photo, he is usually smiling)
Politics: Are You Ready for 2020?
Are you ready for 2020? Judge Julia Maldonado will face a Democratic challenger in the 2020 primary, Sonny Phillips. The presidential race will be far from decided when Texas holds its March primary and turnout in the Democratic primary in Harris County will be off the charts. Primary voters will mostly have no clue who Julia Maldonado is (much less how well she is performing as a judge), but they will be able to tell she is female and Hispanic. Almost all Democratic groups which endorse in primary races will support Maldonado.   Mr. Phillips is a good guy and a skilled attorney, but his odds of winning are not great. 

Several Republicans are considering a challenge to Maldonado (reportedly including Alyssa Lemkuil and Charlie Prine), in part because 2020 will be the first general election when straight party ticket voting for judges is eliminated.  A 2002 study of "Straight-Party Ballot Options and State Legislative Elections," (by David C. Kimball, Chris T. Owens, and Matt McLaughlin) cites several studies that show unrecorded votes for down ballot races are more common in areas with concentrations of racial and ethnic minorities, low-income residents, less-educated citizens, or elderly voters. They cite another study finding when the straight-party option is available, Republicans are more likely to vote straight ticket the conventional way (by going down the ballot voting for every Republican) without using the straight-party punch. Their conclusion is that in urban areas, the presence of a straight-ticket ballot option helps Democratic candidates, while its absence helps Republican candidates.  On the other hand, 2020 will be a massacre for Republicans in Harris County if Trump is at the top of the ticket and I think that will more than offset the elimination of straight ticket voting.

Associate Judge Jim Evans can remain as Judge Maldonado's Associate Judge while he runs for Chief Justice of the Fourteenth Court of Appeals in 2020. Last year, many were shocked that the Democrats also swept the Houston courts of appeals. This race will also be impacted by the elimination of straight ticket voting. We certainly need more family lawyers on the appellate courts! Click here to go to Evans' campaign website.
Judges' Campaign Finance Reports
Our new judges raised almost no money before November 2018. Surprisingly, the newly elected judges found lawyers were more than happy to contribute after the election results were announced. Many of the big lawyer contributions came from the same high rollers who funded the Republican judges these newcomers just defeated. The nine new judges had to stop accepting contributions in May 2019, while Judge Julia Maldonado (who is on the ballot in 2020) was able to start accepting donations this Spring.

Campaign finance reports for the first six months of 2019 have now been filed and they are summarized below. Click on the judge's name to download in PDF his or her finance report with a detailed list of contributors. The contribution totals only include 2019 donations and not what was given in 2018. The cash on hand is what each new judge will have until they can fund raise again in 2021.

Contributions: $29,526 Cash on Hand: $24,739.50

Contributions: $81,304.91 Cash on Hand: $5,850.00 (apparent error)(should be $84,247.53)

Contributions: $85,926.95 Cash on Hand: $72,688.00

Contributions: $40,822.97 Cash on Hand: $26,925.67

Contributions: $78,556.42 Cash on Hand: $84,102.93

Contributions: $67,449.58 Cash on Hand: $49,910.72

Contributions: $61,832.52 Cash on Hand: $39,592.89

Contributions: $64,200.66 Cash on Hand: $78,688.82

Contributions: $62,503.14 Cash on Hand: $61,967.37
Judge Julia Maldonado is doing very well in fund raising for her 2020 re-election campaign. Her July 15, 2019 campaign finance report showed she had raised $104,081.07 in the first six months of 2019 and had $111,746.70 in the bank.  Click here to see the details of who has donated to Maldonado. Dennis Slate is Maldonado’s campaign treasurer.

Maldonado’s biggest contributors this year were:
Latino Democratic PAC $15,000
Bobby Newman $5,000   
Babak Roozbeh $3,000 in kind donation (works for Bobby Newman)
Natalie Coenegrachts $5,000 - office manager for Enrique Torres
J.A. Turner $5,000
Jacob Monty $5,000 (he is an attorney)
Pinkerton Law Firm $5,000
Ricardo Ramos $2,500 (on 10/20/15 he donated $15,000 to Dr. Hotze's anti-gay Campaign for
Houston PAC that fought the Houston Equal Rights Ordinance)
Dennis Slate $2,500 plus $700 in kind donation
Lynn Hudson $2,500 (report does not list her occupation but she is a lawyer)
Gonzalez Law Group $2,500
John Van Ness $2,500
Rodolfo Cantu $2,000
Kelly Fritsch $2,000
Gardner Parker $2,000 (consultant)
Rainwater & Associates $2,000
Moore, Vlahakos & Sydow, PLLC $1,000
Paula Vlahakos $1,000
Useful Cases: Medical Issues
A parent's medical records are usually NOT discoverable, even in a child custody case .   In re Morgan , 507 S.W.3d 400 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding).   Click here to download a copy of this case. Relying on R.K. v. Ramirez , 887 S.W.2d 836, 842 (Tex. 1994), the Houston First Court of Appeals granted mandamus to stop production of the mother’s medical records in a divorce/child custody case and held:

This [ physician-patient] privilege is limited by exceptions, including a "litigation exception," which applies when "any party relies on the patient's physical, mental, or emotional condition as part of the party's claim or defense and the communication or record is relevant to that condition." TEX. R. EVID. 509(e)(4), 510(d)(5).

This exception applies when "(1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party's claim or defense, meaning that the condition itself is a fact that carries some legal significance." Both parts of the test must be satisfied. Even if both parts of the test are satisfied, when requested, the trial court must perform an in camera inspection and ensure that production is no broader than necessary.

The court reviews the pleadings to determine whether the requested medical records are relevant to a medical or mental condition at issue in the case. The test is not simply whether the condition is relevant "because any litigant could plead some claim or defense to which a patient's condition could arguably be relevant and the privilege would cease to exist." Nor is the test satisfied "if the patient's condition is merely an evidentiary or intermediate issue of fact, rather than an ‘ultimate’ issue for a claim or defense, or if the condition is merely tangential to a claim rather than ‘central’ to it." Instead, the condition must be so central as to require the jury, as part of its determination of the claim or defense, to "make a factual determination concerning the condition itself."

When this ultimate-issue test is not satisfied, it is an abuse of discretion to order production of the medical records.
. . . . Because no pleading contains a claim or defense mentioning Nikki's medical condition or treatment for RSD, the trial court abused its discretion in concluding that the litigation exception applies and in ordering production of Nikki's medical records concerning her RSD.
(citations omitted).

A lawyer who wants the opposing party's mental health and/or medical records should probably add to the petition a specific allegation, such as, "Respondent's alcoholism, depression, anxiety and history of idiopathic seizures make Respondent a danger to the child and justify appointing Petitioner as Sole Managing Conservator of the child."

Even if the trial court rules that the medical records sought are central to a disputed issue in the case (and not just possibly relevant), the judge must then conduct an en camera inspection of any medical records before they are produced.  In re Turney , 525 S.W.3d 832, 840 (Tex. App. - Houston [14th Dist.] 2017, orig. proc.).

No contempt for failing to pay a child’s uninsured medical expenses unless the Movant complied with the order and provided all forms and explanations of benefits showing the uninsured amount within 30 days after she receives them.  In re I.O.K. , No. 05-13-01201-CV (Tex. App. - Dallas 8/13/14, no pet.)(mem. op.).  Click here to download this opinion. 

The appellate cases on this topic are very fact specific and depend on the wording of the order being enforced. For example, some orders require the parent incurring the medical expense to “furnish” the documents showing the uninsured portion and the order defines “furnish.” Sending medical bills by OurFamilyWizard or by regular e-mail may not be included in the order’s definition of “furnish” and so the enforcement may be denied because the Movant did not actually “furnish” the bills. 

Some orders require that explanations of benefits (EOB’s) be provided and those are often not received until weeks after the parent pays in the doctor’s office. Failure to provide EOB’s can defeat an enforcement action if the order being enforced requires EOB’s to be provided.  In re L.K. , No. 02-18-00049-CV (Tex. App. - Fort Worth 11/8/18, no pet.)(mem. op.).  Click here to download this opinion. The movant in an enforcement has the burden to prove that the medical reimbursement is owed and the movant’s compliance with his/her obligations under the order is an element of the movant’s case that must proved before the respondent can be held in contempt.  In re L.K., Id .
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
www. divorce
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