Issue: No. 70                                                                             August 29, 2016
In this issue ....
This issue of my newsletter has the longest and most upsetting story I have published since I wrote about the Polland/Alicia Franklin CPS scandal.  A lot of judges and even more attorneys have not followed the law on what Associate Judges can do and there is going to be hell to pay for some citizens whose divorces, child custody cases and adoptions are not really finished or final.  I take the responsibility of proclaiming that "the sky is falling" very seriously and so I took the unusual step of sending a rough draft of my article to about 40 prominent family lawyers and district judges.  No one wrote back to say I was wrong and most agreed with my analysis.  Here is what one judge wrote to me:

...unfortunately, you are correct in characterizing this as a potential "catastrophe." Considering how long this has been going on, it is actually a little surprising that this was not raised by an appellate court years ago.   Lawyers and judges need to work together to address the situation head on and prevent this from being a continued problem going forward.  We all need to deal with this and not bury our heads in the sand and pretend that it's not a problem....

I really want lawyers and judges to e-mail me with their thoughts and suggestions on this topic and what can be done to avoid serious harm to our clients who thought they were divorced years ago when in reality they are not divorced and their cases are technically still pending.

A Really Good Book for Attorneys and Users of Electricity

Attorneys who fancy themselves litigators should read the new historical novel by Graham Moore, The Last Days of Night.  In 1888, Thomas Edison sued his archrival George Westinghouse for violating his patent on the light bulb. Edison sued Westinghouse for about a billion dollars in 1888, which would be over $24 billion today.  That is what made Westinghouse's next move so utterly insane.   Westinghouse hired as his lead litigator, on what might be the largest lawsuit in American history,  a  26-year-old lawyer named Paul Cravath.  Cravath was 18 months out of Columbia Law School and had never really had a client before, much less tried a case.   Suddenly, Cravath found himself the lawyer in charge of this gigantic lawsuit.  This very true story is the basis for a very entertaining novel that tells the the story of the great scientific rivalry of the 19th century, all from the perspective of this earnest, ambitious, hungry young attorney.  This is a really good book and by the end you will know the difference between AC and DC electricity.

Trump Continues to Let Team Lemkuil Down

A recent poll of likely voters in Texas showed Donald Trump beating Hillary Clinton by only six percentage points.    Romney won Texas four years ago by 16 percentage points while losing the nation by four.  Political pundits think that if Trump barely wins statewide, then a Democratic sweep of Harris County is very likely.  This past week, three different elected Republican officials told me the same thing - even they expect a Democratic sweep locally this year.

The Public Policy Polling survey done in mid-August showed Trump leading state-wide with 44% to 38% for Hillary Clinton, 6% for Gary Johnson, and 2% for Jill Stein.  In a head to head contest, Trump lead Clinton 50% to 44% in the state, which Mitt Romney won by 16 points in 2012.   Trump's lead is based entirely on his holding a 63% to 33% advantage among seniors age 65 and over. With voters under 65, Clinton lead Trump 49% to 45%. Among voters under 45, Clinton was beating Trump 60% to 35%. Older voters are overwhelmingly responsible for the Republican advantage in Texas, and generational and demographic changes are likely to help Democrats become more competitive in the future.   Trump had a 69% to 25% lead with white voters but among non-white voters Clinton had a 73% to 21% lead, including a 68-27 edge with the state's booming Hispanic population. 

The U.S. Census estimate for Harris County for 2015 shows a continued shift to a non-white population.  The 2015 estimate for Harris County showed a total population of 4,538,028 divided racially as follows: Hispanic 41.8%, White alone (not Hispanic) 31.4%, Black alone (not Hispanic) 18.5%.


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.
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:

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The Mongoose

changesChanges in Galveston County
Personnel changes in Galveston County will effect family law cases.  County Court No. 3 Judge Jack Ewing has a new coordinator: Celeste Huffstetler (no relation to the Brazoria County district judge with just one "f" in his name).  Katherine Bush returned from having her baby but then decided she needed to stay home with her new child and we all understand her decision, even if we will miss her.

Click here to download a new, updated chart of Galveston County courts and court personnel.

Associate Judge Steve Baker is now hearing cases five days a week.  Judge Baker now hears cases on Friday mornings, thanks to judges and county commissioners actually agreeing on something and hiring Kerri Foley to do magistrate work on weekends and holidays so that Judge Baker can spend more time on family law cases.  Thanks to everyone for cooperating and getting this done!

Here are a few reminders on how family law cases are handled in Galveston County:
  • Half of new cases go to the 306th District Court (Judge Darring) and the other half are divided between the three county court judges, all of whom use the District Clerk to handle family law cases.  All four courts share one associate judge, Steve Baker.
  • Almost all temporary order hearings, discovery motions and requests for appointments of amicus attorneys and custody evaluators are heard by Associate Judge Baker.  Baker is routinely assigned protective orders and contempt actions, and objections to the associate judge hearing those final hearings are also routinely ignored.  Judge Baker otherwise does not preside over final trials and he very seldom hears "prove ups" of agreed divorces.
  • As many as five or six cases are scheduled in the morning and the same number in the afternoon with Judge Baker.  He will finish all hearings in the morning by noon and the afternoon by 5:00 p.m., so if several lawyers need hearings, he will impose very draconian time limits.  You may have only 30 minutes per side to present a custody case, for example, or you may have three hours for your motion to compel depending on the docket for that morning or afternoon session.
  • Judge Baker hears cases for all four courts with family law jurisdiction and he does not have his own coordinator.  You can get word about a canceled or delayed hearing to Judge Baker through the court coordinator of the court he is hearing your case for.  The four court coordinators schedule hearings before Baker.
  • Judge Baker knows the Family Code and Texas Rules of Evidence and he is efficient and fair.  Judge Baker will treat an out of town lawyer who understands his procedures just like the local lawyers.  He hears cases like a machine and makes his rulings right then.
  • If a child is to be interviewed by Judge Baker, they need to be in or near the courthouse as he will see the child during that morning or afternoon session and will not usually hold off on a ruling so he can interview the child on a later day.
  • Associate Judge Baker has not been given a court reporter by the county, so lawyers have to arrange for their own reporter as they would in a deposition (which is ridiculous!).
  • Appeals from Judge Baker are actively discouraged and the presiding judges force parties to mediate prior to the de novo hearing.  However, the presiding judges usually give much more time for the de novo hearings and they will issue rulings sometimes very different than Judge Baker.

I practice in front of Judge Baker more than any other single judge and he has a profound influence on almost all family law cases in Galveston County.  He usually has a very stern demeanor but it is possible to crack him up.  Judge Baker is usually predictable, very hard working, he knows the law and he does not play favorites.  Judge Baker and I have disagreed plenty of times and I am sure he has a lot to say about me, but Judge Baker is one of the best parts of the family courts in Galveston County.  Everyone can do well in his court if they get a good scouting report of Judge Baker's predilections, understand the procedures, come prepared, act respectfully to the judge and efficiently present a succinct case that gets to the point.  



 spangledStar Spangled Controversy and History
The Star Spangled Banner is a big deal to me.  I always stand, take off my cap and hold my hand over my heart when our national anthem is played.  Sometimes I even get teary eyed as I sing along (it is one of the few songs I know all of the words to).  I can be patriotic and sentimental even if I realize our nation has not always done the right thing.  We are an imperfect collection of diverse people who enjoy freedoms and share dreams and prejudices that make our nation truly unique.  Honoring our national anthem to me is also a way to honor the men and women (and their families) who have sacrificed for us in the military.  So, I too was bothered by San Fransisco 49er quarterback Colin Kaepernick when he very publicly refused to stand during the national anthem.  I disagree with him but certainly recognize his right to express his own protest.

Kaepernick explained his action as follows:  "I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. ... There are bodies in the street and people getting paid leave and getting away with murder."  He would have been on more solid historical footing if he objected to the song written by Francis Scott Key as being, at least in part, racist.

Should we really expect African-American players to stand for "The Star-Spangled Banner" if it  literally celebrates the murder of freed slaves?  Few people know this because we only sing the first verse. But read the  end of the third verse and you'll see:
No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.
"The Star-Spangled Banner,"  was written by Francis Scott Key during the Battle of Fort McHenry in Baltimore harbor during the War of 1812.  Few recall that the War of 1812 was a war of aggression that began with the U.S. trying to grab Canada from the British Empire.  That move backfired on us and by the time of the Battle of Fort McHenry in 1814, the British had counterattacked and overrun Washington, D.C., setting fire to the White House.  One of tactic of the British military was its emancipation and recruitment of American slaves.  Whole families found their way to British warships and military units.  The British accepted everyone and pledged no one would be given back to their "owners."  Many freed black men volunteered and fought in a British regiment called the Colonial Marines, a unit which participated in many of the most important battles, including the August 1814 raid on Washington.  Click here to read a Wikipedia article on the Colonial Marines.  American slave owners were outraged by the British helping their "property" escape and even more infuriated (and scared) by the notion of arming blacks to fight against their former masters.

So, when Key (who had been a slave owner himself) wrote,"No refuge could save the hireling and slave / From the terror of flight or the gloom of the grave," he was celebrating the death of slaves who had freed themselves and were fighting for the British that night.  In truth, only one of the freed slaves fighting for the British was killed in the battle Francis Scott Key watched and none were put to "flight."  Unlike the American Revolution, the British Army did not rely on mercenaries in the War of 1812, although a small unit of Swiss mercenaries were stationed in Canada but did not enter the U.S.  Thus, there were freed slaves fighting the Americans in the Battle of Fort McHenry but no "hirelings" unless one counts the sailors from around the world who served in the British Navy and who were paid meager wages for their service.

For more on this twist of history, click here to read an article from The, which inspired this article.  Click here to read a more detailed 2014 article from Harper's on this part of our national anthem and its meaning for African Americans.  After Britain and the U.S.  signed a peace treaty at the end of 1814, the U.S. government demanded the return of American "property," which by that point numbered about 6,000 people. The British refused. Perhaps Kaepernick should say he is simply honoring that refusal and will not honor a song that partially celebrates the death of freed slaves fighting their former masters.  For me, I will continue to stand and honor our flag and our imperfect union and those who fought bravely for it, even if some of the wars they fought in were not the best of ideas. 

 Associate Judge Catastrophe?
We expect judges to know and follow the law.   Great mischief usually results when they do not.  Most lawyers and judges will concede that the actual wording of a law should always control over habit, convenience or "this is the way we have always done it."   Unfortunately for many family law litigants, most (but not all), family courts in the Houston area have not been following the letter of the law on what un-elected associate judges are allowed to  do, and really big problems may well surface.  The family bar is also part of the problem.  We also had not closely read the law on what associate judges can and cannot do.  We participated in final trials with associate judges and we did not insist that the final orders be signed by the elected judges. The First Court of Appeals in two recent cases did actually read the law and now we all should realize we have been doing things improperly.  The First Court of Appeals' rulings, while upsetting and perhaps surprising to many, seem to accurately implement what the law says, even if it may really screw up some lives and families.  Judges and the family bar, and perhaps the legislature next year, will have to work together to deal with the disturbing development.

Imagine this scenario:   A woman thinks she was divorced three years ago after a "final" trial was presided over by an associate judge.  The woman has since  remarried, had two children, bought a house with her new husband and added $150,000 to her 401(k) plan.  Imagine that lady's horror when she is told that her divorce was not actually granted and her divorce decree is not even a valid order because the associate judge lacked the legal authority to render and sign a final divorce decree.  The poor woman is still married to her previous husband, her two new children are presumed to be his because she is still married to him and her new house and the increase in her retirement plan are community property subject to division because an associate judge cannot render and sign final orders.  

This and other similar horrible scenarios may well be reality because of two recent cases from the Houston First Court of Appeals which are throwing into question the finality of perhaps hundreds of final orders signed by associate judges without legal authority.

An alternative scenario would be for the elected judge to simply now sign the "final" order and handwrite "rendition and this order is effective as of the date of the associate judge's ruling."  If this tactic works, then there is no real problem for most litigants and life goes on with all of us being a little wiser and perhaps more careful.  The problem is that it is far from clear that the problem can be fixed so easily.  All of the appellate lawyers I have talked to do not think a judge has the power to render a retroactive decision and that the act of rendition involves a ruling made in the present.

Harris County and its larger suburban counties have elected judges with family law jurisdiction and also have associate judges who are hired by the elected judges.  The associate judges have limited powers and can only act as authorized by the Texas Family Code.  The majority of family judges in this area have been allowing their associate judges to conduct final trials and sign orders that are not also signed by the elected judges.  Almost all of those orders are not valid orders according to the holdings in Gerke v. Kantara, No. 01-14-00082-CV (Tex. App. -Houston [1st Dist.] 4/19/15 and Clark v. Clark, No. 01-15-00615-CV (Tex. App. - Houston [1st Dist.] 6/28/16).  Click here  to download the Gerke opinion.  Click here to download the Clark opinion.  A third decision from the First Court of Appeals recently relied on the holdings in Gerke and Clark.   In re A.T.N.J., No. 01-15-00844-CV (Tex. App. - Houston [1st Dist.] 8/18/16).

Sec. 201.007 of the Texas Family Code sets forth the powers of an associate judge:

Sec. 201.007.  POWERS OF ASSOCIATE JUDGE.  (a)  Except as limited by an order of referral, an associate judge may:
(1)  conduct a hearing;
(2)  hear evidence;
(3)  compel production of relevant evidence;
(4)  rule on the admissibility of evidence;
(10)  recommend an order to be rendered in a case;
(14)  without prejudice to the right of appeal under Section 201.015, render and sign:
    (A)  a final order agreed to in writing as to both form and substance by all parties;
    (B)  a final default order;
    (C)  a temporary order; or
    (D)  a final order in a case in which a party files an unrevoked waiver made in accordance with Rule 119, Texas Rules of Civil Procedure, that waives notice to the party of the final hearing or waives the party's appearance at the final hearing;
(16)  sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015.

In the Gerke case, Associate Judge Robert Newey presided by agreement over a final trial in a modification case.   After a seven-day trial extended over several months, Judge Newey signed a "final" order of modification.   The parties had waived a de novo hearing to the referring court on the record at least twice.  The wife filed an appeal to the court of appeals of the modification order and the appellate court held that it lacked jurisdiction because the order was not a final order.  The court held:

    The powers of an associate judge are enumerated in the Family Code and they include the power to "recommend an order to be rendered in a case."  Tex. Fam. Code Ann. § 201.007(a)(10) (emphasis added).  Thus, an associate judge has the authority to "recommend" to the referring court that an order executed by the associate judge be "rendered" by the referring court and become a pronouncement, or final order, of that court.  The associate judge's proposed order may be adopted, modified, or rejected or sent back to the associate judge by the referring court.  Id. § 201.014(a).  Such a proposed order becomes final and appealable from the date it is signed by the judge of the referring court, and not before.  See id. § 201.016(b).  This is specifically required when, as here, the parties have waived a de novo hearing before the referring court.  Id. § 201.013(b) (stating that when parties waive de novo hearing before referring court, "the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment.") (emphasis added).  There is no evidence in this record that the referring judge signed the proposed order of the associate judge.
    ... section 201.007(a)(16) of the Family Code... authorizes an associate judge to "sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015."  Tex. Fam. Code Ann. § 201.007(a)(16).  The "appeal" referred to in section 201.015 refers not to an appeal of this Court but to the right to a de novo hearing before the referring court of matters heard by the associate judge.  Id. § 201.015.  The order itself contains no such waiver of appeal.
    However, " [a]ssociate judges do not have the power to render final judgment outside the context of certain limited exceptions listed in section 201.007 of the Family Code." Graham v. Graham, 414 S.W.3d 800, 801 (Tex. App. - Houston [1st Dist.] 2013, no pet.).  Within those limited exceptions, an associate judge does have the power to issue an order that then "constitutes an order of the referring court."  Tex. Fam. Code Ann. § 201.007(c).  Those exceptions include (1) a final order agreed to in writing, (2) a final default order, (3) a temporary order, or (4) a final order in a case where a party files a waiver of notice or appearance.  Id. § 201.007(a)(14).  None of these circumstances apply to this case.
     Here, the associate judge's modification order, which was signed after a trial on the merits and expressly indicates it is approved as to form only, is not an agreed or default judgment or one of the other limited exceptions listed in the Family Code which empower an associate judge to render a final order without the signature of the judge of the referring court.  See id. § 201.007(a)(14).  Therefore, the associate judge's modification order "becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment."  Id. § 201.013(b).  Because there is no evidence in the record that the referring court signed the October 28th order, no final order has been rendered in this modification suit.  See id. § 109.002(b) ("An appeal may be taken by any party to a suit from a final order rendered under this title.").  Accordingly, we do not have jurisdiction over Mary's appeal.

The Gerke decision has upset most family court judges, but it is simply applying the very plain words of the Family Code and should not be such a shock (although its results may well shock a lot of people who think their divorce, custody or adoption cases are over when they are not).

Many associate judges have, by agreement of the parties and their attorneys, heard final trials and signed the "final" orders which were not then signed by the elected judge.  Gerke means that NONE of those orders are  valid, final orders or even renditions.  The inability to even render a ruling means that the divorce or change of child custody or increase in child support or adoption has not even been granted.

It appears that the Gerke case will have to be retried completely because Judge Newey is no longer in office (and may not have been eligible to serve as an associate judge when he heard the case) and the suit has been transferred to a different court because the amicus attorney, Doug York, is married to the elected judge of the court that originally had jurisdiction of the case.  So, those parents face a complete and expensive re-trial of their custody case.

The Clark case involved a modification suit in Brazoria County that went to a "final" trial before Associate Judge Bradshaw, who ruled in favor of the mother.    Judge Bradshaw signed the "final" order and the father filed a motion for new trial.  Bradshaw then issued an "Associate Judge's Report" in the form of a letter to the parties that said a judgment nunc pro tunc should be granted because of a clerical error (the geographic restriction on the child's residence was omitted from the order) and recommended denying the motion for new trial.  No new judgment was submitted and no action was taken on the father's motion for new trial.  The father filed for a writ of mandamus to the court of appeals, which was denied because the court of appeals lacks jurisdiction over an associate judge.  In re Clark, No. 01-15-00458-CV (Tex. App.- Houston [1st dist.] 6/23/15)(orig. proc.).  The father then wrote Judge Hufstetler and asked him to take action on the case in light of the rejected mandamus and nothing happened.  The father then filed a notice of appeal challenging Bradshaw's original order and filed a petition for writ of mandamus because of Judge Hufstetler's failure to take any action on his associate judge's recommended order.

The Clark decision follows Gerke and dismisses the father's attempted appeal because the associate judge's order was not signed by the elected, referring court.  However, the mandamus was conditionally granted.  Here is what the court of appeals wrote (with case citations omitted):

    As we explained in Gerke, " [a]ssociate judges do not have the power to render final judgment outside the context of certain limited exceptions listed in section 201.007 of the Family Code." None of the exceptions identified by subsection [201.007] (a)(14) are applicable here.

    Although an associate judge's power to render judgment is limited, associate judges may, nevertheless, "recommend" to the referring court that an order executed by the associate judge be "rendered" by the referring court and become a pronouncement, or final order, of that court.  The associate judge's proposed order may be adopted, modified, or rejected or sent back to the associate judge by the referring court. § 201.014(a)  Such a proposed order becomes final and appealable from the date it is signed by the judge of the referring court. See id. § 201.016(b)  This is specifically required when, as here, the parties have waived a de novo hearing before the referring court. Id. § 201.013(b)(stating that when parties waive de novo hearing before referring court, "the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment") (emphasis added).
    C. Analysis
    Based on this statutory scheme, Judge Hufstetler has a non-ministerial duty to take some action on Associate Judge Bradshaw's order.

So, these two cases make clear that the "final" orders signed only by associate judges after trials that were not defaults or based on signed waivers are not final orders if the orders were not also signed by the elected, referring judge .  Since the associate judge cannot even render in such situations, I do not think the parties can now say they were divorced back then but just need an order signed now.  Unless the referring judge signed the order, there was no rendition, and thus no divorce or adoption or ruling on the change of custody or child support.  All of the appellate attorneys I have talked to do not think that a judge can render retroactively and can only render a judgment now in the present.

Enforcement of these orders signed just by the associate judge could also  be a problem because of Section  201.013(a), which states:

Pending a de novo hearing before the referring court, a proposed order or judgment of the associate judge is in full force and effect and is enforceable as an order or judgment of the referring court, except for an order providing for the appointment of a receiver.
Some interpret this section to mean that the AJ ruling is in effect and enforceable only if a request for de novo hearing is made.  Surely, the AJ's ruling is in effect and enforceable if there is no de novo sought between the time of the ruling and the time an order is entered (and then signed by the presiding judge).  I think Sec. 201.013(a) means the AJ's signed order is enforceable even if the elected judge did not sign it, but other board certified lawyers I have talked to disagree.

Orders in child support cases signed by IV-D masters (who are also associate judges) should not be affected by the Gerke and Clark decisions (except in contempt cases), because the Family Code gives IV-D masters the power to render and sign final orders.  Tex. Fam. Code Sec. 201.1041(a).
Some elected judges and their nervous associate judges are blaming the Gerke and Clark opinions on appellate judges who do not know family law.  A few think there is an agenda by some to eliminate associate judges.  I think the First Court of Appeals simply followed what the law clearly says.  This explains why a few courts always have had any order of the associate judge signed by the elected judge - those judges knew and followed the law.

Cool photo of a swimming tiger (not related to this story but totally awesome).

However, there is a conservative, typically Texan political philosophy that the justices who wrote Gerke and Clark subscribe to.  The Texas Constitution was written after the end of Reconstruction to disperse political power among many elected officials.  After living under the "tyranny" of unelected Yankees and their "lackeys," Texas decided that almost all of its officeholders would be elected, from the County Surveyor to the Justices of the Supreme Court.  Many in Republican circles strongly feel that unelected associate judges have been over-stepping their authority and violating the spirit of the Texas Constitution.  This philosophy actually makes some sense even if it ignores the reality of how the over-crowded family law courts in big counties must operate to survive.

I am not particularly blaming the judges who have not followed the proper procedure because us lawyers also allowed it to happen routinely without complaint. Most attorneys, including me, had never read the statute on associate judges closely enough to realize that almost all of us were doing it wrong.

It is not easy at all to determine how widespread a problem this is.  I have already found in my firm's files a three year old divorce decree signed only by the associate judge after a trial (me and the other board certified lawyer did not know to insist the presiding judge sign the decree, so I am clearly not blaming just the judges).    Categories of cases that could be effected include:
  • "Final" orders in divorce, modification, SAPCR and paternity cases decided by the associate judges (not those involving a waiver of citation and appearance, default or an agreed order approved as to substance and signed by all parties)
  • Agreed orders of any sort not signed by all parties.  We often settle cases and then for various reasons do not get the parties' signatures.  Sec. 201.007(14)(A) says the AJ can sign and render, "(A)  a final order agreed to in writing as to both form and substance by all parties."  If one party did not sign the agreed order for some reason, the AJ could not render and sign the "final" order.
  • Adoptions heard by the AJ since those do not involve a waiver and they are not agreed since testimony must still be presented.  Who wants to go tell a family that their adoption order from years ago was not a valid order?
  • Name changes heard by the AJ.

Most agreed divorces heard by the associate judges will not be affected by this controversy because such cases involve waiver of citation and appearance and the orders are signed by both parties.

So, going forward this problem is easy to fix: ALWAYS have the elected judge sign any order of the associate judge.  Next year, the legislature can clarify the statute and perhaps provide retroactive relief for the many citizens who would otherwise suffer because their "final" orders were not signed by the right judge.

In the meantime, lawyers should review their old, closed cases for situations where the associate judge heard the final trial and then check to see if the elected judge also signed the order.  If the presiding judge did not sign the order, we need to contact our former clients and tell them that their cases are not over.  The lawyer and law firm are still on the case because our contracts say we will represent the client until the case is over.  If the case is not over, then we are still on the hook to serve that client.

Lawyers who determine that a former or new client is effected by an associate judge's order that is not final first must explain to the client how most judges and almost all lawyers allowed this to happen in spite of the clear wording of the Family Code.  Next, the attorney must determine if there is a reason to re-litigate or whether (as will usually be the case), the best route is to inform the other side and reach a reasonable agreement on how to really finalize the case.

Some parties are going to try to take advantage of this situation by arguing that their case is really not over and they should relitigate property division or custody or child support.  In some cases, that may be the fair thing to do or it may be the only possibility.  However, if a party is simply trying to inflict emotional harm on or squeeze more money from a spouse who certainly is not to blame for this mess, the judge can simply refuse to assist and say he or she will award 100% of the assets added since the "divorce" that was not final to the spouse who earned them and state clearly on the record why this is fair.  Lawyers should be very cautious about advising clients who seek to take unfair advantage of this situation, especially if the lawyer giving the advise was counsel when the order that is not "final" was entered, since the lawyer probably bears some of the blame for the problem along with the judges.

So, consider this analysis of what lawyers could and/or should do if they find an old case where only the associate judge signed the "final" order (this does not apply to defaults or cases with waivers):

1.  The "final" order that is not final after all was in a divorce case.  As explained above, the parties are not divorced because the associate judge cannot even render a ruling.  This means that the parties have probably continued to accumulate community property and a spouse who has remarried has not legally done so.  Things get real complicated if the wife has had children with another man since she thought she was divorced.  

    A.    If not much time has passed since the associate judge tried to divorce the couple and if very little or no new property has been accumulated and if neither spouse has "remarried" and the wife has not had a child with another man, file a motion to enter judgment.

    B.    If substantial property has been acquired by the spouse you do not represent (and not by your client), consider filing a motion to set aside associate judge's ruling and ask to resume discovery and request another trial setting.  Your argument would be that the parties are still married and there is now more community property to value and divide.  Be cautious because the judge, whose mistake may have caused this situation, may not like the thought of a party benefiting from a judicial error like this.

    C.    If your client is the spouse who has accumulated substantial assets since the trial with the associate judge, try to get by with a motion to enter judgment on the associate judge's ruling and hope that your opposing counsel has not read this article.

    D.    If your client has already remarried since the associate judge signed the divorce decree that is not a final order or even a rendition, you will need to very gently break the news to your client that he or she is still married to the man or woman she tried to divorce and cannot now be legally married to the new person.  If that new relationship is strong, then they will simply have to deal with the crazy turn of events, finalize the divorce the right way and get remarried.  If the new relationship has turned out to suck already, this development may be a ticket out of that relationship without a divorce.  You should probably research and explain the concept of a "putative spouse" to your client in that situation however.  

    E.    If the wife, who is not really divorced, has had a child (or children) with another man since the associate judge signed the divorce decree, then the guy she thought she had divorced is presumed to be the father of that child because it was born during their marriage.  Tex. Fam. Code Sec. 160.204.  The real father of the child can file an acknowledgment of paternity and the man who is still the spouse can file a denial of paternity to overcome that presumption.  Sec. 160.204(b).  Many judges will require the pleadings to be amended and the biological father to be made a party to the divorce case that is not yet really over.

2.  In cases other than divorce, if your client or the person consulting you "won" the final hearing before the associate judge and likes the outcome: file a motion to enter judgment.

3.  In cases other than divorce, if your client or the person consulting with you "lost" the final hearing before the associate judge and does not like the outcome: consider if it is wise to file a motion for new trial and argue that too much time has passed or new facts have developed which prevent the judge now from entering a judgment based on facts as they existed way back when.

4. If neither party really likes the ruling of the associate judge or circumstances have changed and they are not following the ruling any way: try to reach an agreement and then file a joint motion to enter an greed order based on the new agreement.

5.  If both parties accept the ruling of the associate judge and simply want an order entered: file a joint motion to enter judgment.

6. If the case that is not really over involved a ruling on child support, each side should try and determine if the obligor's income would result in a different amount based on current income.  If a change in child support would be warranted, one party might file a motion to set aside the associate judge's ruling and argue that child support must be based on current income and it would be wasteful to require these people to file a modification action instead of just litigating that issue now before the new "final" order is entered.

7.  If a modification suit has been filed to change the "final" order of the associate judge and:
    A.    The modification suit is still pending: file a motion to dismiss and argue that the court cannot modify an order that was not final and was never rendered or entered.
    B.    The modification suit has already been disposed of with a new order.  I would assume that the modification is void if the prior order was not final, but I could find no authority on that point.  I think you could file a motion to set aside modification order as void and interlocutory because in theory the prior case is still pending.

We will need to check with our district clerks to see how they re-open cases that their system say are closed in these situations.

I predict that there will not be an avalanche of motions and litigation involving cases that are not really final because most people will never know this has happened to them or will not know until years in the future.  Many litigants may decide to just leave things alone, but that is not a wise choice in the case of a divorce or adoption that is not really a "final" order.

Lawyers may be tempted to not inform their former (current?) clients about this mess because it makes the attorneys look bad as well as the judges.  However, this is a mistake almost everyone has made and we each have the duty to tell our clients about such an important development, even if it is bad news for the client.

I would very much appreciate the thoughts and opinions of other lawyers and judges about this issue and I will publish most of what I receive if it is worthwhile, even if it disagrees with the opinions set forth in this article.  Please e-mail me at

Click here  to download the Gerke opinion.  Click here  to download the Clark opinion.

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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, Brazoria County and Harris County, Texas.  

Greg Enos

Board Certified in Family Law, Texas Board of Legal Specialization

The Enos Law Firm