Issue: No. 63                                                                                                                   July 21, 2015

In this issue ....

The Mongoose Hibernation is Over!

Rampant rumors of my institutionalization, a restraining order or even a possible sale of The Mongoose is to Doug York do not explain this newsletter's summer hiatus that ends with this issue.  I have taken a family vacation, moved to the country and actually tried to do a little lawyer work.  I have also finished my book, GRANDPARENTS' CUSTODY AND VISITATION RIGHTS IN TEXAS: 2015, and it will be on sale starting at the Advanced Family Law Seminar.  

This newsletter returns with a BANG as I offer an article that examines why some attorneys fear that all orders signed by former Associate Judge Bob Newey may be void.

I also summarize some major advances in my campaign to clean up appointments in CPS cases thanks to the Texas Legislature and I provide a useful chart on which Harris County family courts require mediation prior to the first hearing on temporary orders.

Former Galveston County Judge Christopher Dupuy, who resigned and plead guilty to perjury charges involving me and this newsletter, was arrested and charged with on-line impersonation.  Dupuy has filed a pro se discovery motion seeking e-mails from and to me (and many others)!

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


The Next Mongoose Issue Will Really Tick Off Some Judges and Hopefully Educate Voters 


A special issue of this newsletter will soon focus just on the crazy, never-ending battle between Galveston County Commissioner's Court and some of the judiciary, lead by Judge Lonnie Cox.  I plan to mail at my own expense a print edition of this newsletter to all families who voted in the 2014 Galveston County Republican primary just to make sure the public knows what this ridiculous feud involves and who is responsible.  Court orders, lawsuits, mandamus actions, appeals and public mud slinging have made the Galveston Justice Center a very tense place to work.  This dispute ostensibly is about the firing of the Director of Justice Administration and who gets to the control the courts' administrator.  Some judges are going along with their fearless leader, Lonnie Cox, to support judicial independence and because they are sick of County Commissioners nickel and diming them.  Judge Kim Sullivan is miffed because her $5,000 extra a year for being the Administrative Probate Judge (when she is the only probate judge) was axed by commissioners.  Some judges are frankly intimidated by Lonnie Cox and his tea party cronies.  However, most interested folks honestly see that this fight is really about a vendetta by Judge Cox against County Judge Mark Henry.   Cox tried to defeat Henry in the primary and then the general election and now Cox is using the fired Ms. Quiroga as a proxy for his battle with Mark Henry.  Cox is truly enjoying this fight and he is making himself a hero to judges across the state.  The Legislature passed a law that allowed the County Commissioners to do what I first urged as a compromise back in December (create a separate office of court administration controlled by the judges), but that is not enough for Judge Cox (even though it is just what the judges said they wanted this Spring except for the amount of salary for the department head). 

Click here to read the e-mail District Judge Kerry Neves sent out that cites my plan to mail out a print edition of The Mongoose as a reason for judges and commissioners court to stop fighting and settle.  Sadly, his voice of reason is not being listened to.  I have nothing to gain from disagreeing with so many of my judge friends in Galveston County and I agree that County Judge Mark Henry has not handled this dispute as he should have.  At times, it seemed that Commissioners Court was purposefully trying to antagonize the judges.  But, I have many Republican friends, including party leaders and elected officials (and at least four of the nine judges), who agree with me that this waste of time and tax payer dollars should stop.  The embarrassing sham of a court case going on now with Cox suing Mark Henry individually only makes the problem worse and insures an on-going battle.  There was a lot about the most recent court hearing that made Republican party activists who watched the proceedings think it was not fair and "the fix was in."  Courtroom observers should not have been able to see the visiting judge talking to Lonnie Cox, a party to the proceeding, during breaks in the hearing, but they say they did.  The Cox v. Henry battle has shifted to the court of appeals and now Cox wants Mark Henry and a bunch of folks he has not even sued yet to be held in contempt of court.    Click here  to read the contempt motion filed for Lonnie Cox in the Court of Appeals.

A majority of the judges need to stand up to Cox and say,"our point has been made, we have won already and this ridiculous fight needs to stop."  An office of court administration has been created and funded but sits empty because of a stubborn refusal to compromise.  Enough is enough.  It makes everyone involved look bad and it is wasting a lot of tax payer money and a ton of judges' time that should be spent doing their jobs in the courtrooms.  Commissioners need to treat judges like independent officials from the same party playing on the same team for the common good.  Judges need to act like judges and stop acting like the irrational, petulant litigants they often scold in their own courts for being unreasonable and not settling.


Legal Directories and Your Free Listing

I am still updating my contact information on Harris County family lawyers and all attorneys in Galveston County/Clear Lake for my legal directories.  Please click here to download a form you can send me to change or confirm your information.  Your listing in my annual legal directories is free.

August is Going to be Big!

My magnus opus on grandparent visitation and custody rights in Texas will be published in August and will completely cover this complicated and ever-evolving topic with case law, analysis and practical advice.  The booklet will include a chart summarizing every recent case in the last 15 years on the subject.

My Mongoose booth at the Advanced Family Law Seminar this August 3 - 6 in San Antonio will offer all new swag featuring my new Mongoose logo and includes a handy wallet size chart of Harris County family courts.

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


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

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Click here for an archive of past issues of
The Mongoose

 NeweyAre All Orders Signed by Former AJ Robert Newey Void Because He Took Office After the Mandatory Judicial Retirement Age of 75?
A growing number of lawyers are sharing the concern that possibly hundreds of orders signed by former Associate Judge Robert Newey may be void and unenforceable because he had already hit the mandatory retirement age for judges when Judge Denise Pratt first appointed him to be her Associate Judge.

I think that orders Judge Newey signed that were not also signed by Judges Pratt or Franklin are unlikely to be declared void. All orders signed by Judge Newey are presumed valid until a court rules otherwise.  However, some very smart lawyers have looked at a draft of this article and they feel there is a realistic chance that orders signed by Newey could be ruled void.  That could create a huge mess, at least for the relatively small number of orders Newey signed which Pratt or Franklin did not also sign.

At the very least, this matter raises several vexing issues that need to be answered to avoid future situations where a judge takes office who is not qualified by law for the position.

Here are the facts, which I verified by talking to David Farr and Robert Newey:

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

When Denise Pratt suddenly resigned in March 2014, Administrative Judge David Farr found himself dealing with a true crisis and a court that was totally screwed up in many ways.  It made sense to keep Judge Newey on for the sake of continuity.  However, Judge Farr knew Newey was already 75 and he had the staff attorney who works for the judges research the issue.  Farr actually re-swore Newey right after Pratt's resignation and then fired and re-hired him twice because of concerns over his age and because of the varying legal advice Farr was receiving.  However, Farr and everyone else involved assumed that Newey turned 75 after he became Pratt's Associate Judge.  Farr says he never imagined that Pratt would hire someone who was already ineligible.

In the end, the legal advice Farr received concluded that Newey could finish out Pratt's four year term because it was assumed he had turned 75 during that term.  Apparently no one asked Newey what his birth date was until this month.  So, Alicia Franklin was told it was okay for her to hire Newey as her A.J. and she did.  Franklin required Newey to retire at the end of what would have been Pratt's original four year term based on the legal advice she was given.

It was not until this month when a lawyer warned Farr that there was a potential explosive legal issue involving Newey's age.  Farr then called Newey and realized for the first time that Newey had turned 75 before he even took office.

Obviously, Bob Newey knew when he turned 75 and he clearly in the Spring of 2014 knew how very concerned Judge Farr and others were about whether he was eligible to serve as a judge.  However, Newey says no one asked him when his birthday was and no one every mentioned that when he turned 75 could be a problem.  Judge Newey never hid his birth date and it is all over his employment records with the county.  It seems very likely that Denise Pratt did not know about the mandatory retirement age for judges in the Texas Constitution.

The Texas Family Code says:

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

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

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

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

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

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

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

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

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

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

I predict (and hope) that orders signed by Judge Newey will ultimately not be declared void, but that begs the questions about how this happened in the first place and who checks to make sure judges are eligible to serve when they are elected or appointed.

Who has verified that our current group of Associate Judges are eligible to serve? They all appear to be over age 25 and under 75, but perhaps A.J.'s should provide birth certificates and proof of residence just like a school kid does when starting at a new school (shot records should not be required).    

Finally, a word on Bob Newey.  Despite what articles in this newsletter might make it appear, I am a big Newey fan.  To know Newey is to love him.  The more you know about him and the service he provides the community and his deep faith, the more you respect and like him.  I never had problems with him as a lawyer in his court.  But, as a pseudo-journalist, I have written articles that have made him squirm.  Judge Newey was gracious enough to take me to lunch after one article and we truly enjoyed ourselves.  I can only hope in 20 years I am as active and able as he is now.  If anything, Bob Newey shows that some judges can serve capably and well past the arbitrary age of 75.

This article is not an attack on Bob Newey, but rather an effort to share pertinent information and ask questions that need to be asked.  Lawyers are already talking about this problem and I understand some are researching motions and appellate filings based on the argument that his orders are void.  However much we respect Judge Newey, this is an issue that needs to be out in the open and discussed.  We can all understand that Judge Newey felt he was capable of serving as a judge and could really help after Pratt resigned, but he clearly knew when he turned age 75.   Newey feels that it is the employer's duty to determine if a new hire is eligible for the job and he points out that no one ever asked about when he turned 75 until this month.

No one told Newey he was not eligible back in January 2011 or even raised that possibility and it is not 100% certain even now that he was disqualified from serving as an A.J.  Yet, Newey, by the Spring of 2014, knew all about the concerns regarding his eligibility to serve based on the mandatory retirement age of 75 in the Texas Constitution.  Judge Farr and others just assumed Newey turned 75 after he became Pratt's A.J. because they just did not think anyone would have taken the post after the time the Constitution says they cannot serve.   As much as everyone wanted Newey to stay and help clean up the mess in the 311th, Newey in retrospect should have declined the offer or at least made sure everyone knew he had been 75 all along and let others make the call.  Someone should have verified that Newey was eligible to be an A.J. when he was first appointed in January 2011.

 chartWhich Courts Require Mediation for Temporary Orders?  A Handy Chart
Some Harris County family judges require mediation before every temporary order hearing and some only if the case involves child custody or visitation.  One judge requires mediation if the hearing will last over three hours and one says,"show up and we will decide if you need to mediate."  This wide variance in policies creates a lot of confusion in law offices and wastes a lot of lawyer and client time.  I have created a chart that summarizes what each court requires regarding mediation before temporary orders and I ran it past the judges and coordinators to make sure it was right.  Click here to download a Chart on Mediation Before Temporary Orders.  
 LegislatureLegislature Enacts Reform Law to Clean Up Court Appointments
Judicial patronage took a major blow as a result of two laws passed by the Texas Legislature.  Click here to read S.B. No. 1876, which as of September 1, 2015, requires that judges use a rotation system to appoint attorneys and guardians ad litem and mediators.  At my suggestion, the bill was amended to create an exception if a person is specially qualified because of prior involvement with the case, special expertise, language skills or geographic location.

Click here to read S.B. 1369, which requires detailed reporting of appointments for an attorney ad litem, guardian ad litem,  guardian, mediator or competency evaluator.  Unfortunately, this law does not cover the very lucrative posts of amicus attorney, custody evaluators, discovery master, receiver or forensic accountant.   
new_courtNew Family Court for Harris County Starts January 2016
We all need to thank Judges David Farr and James Lombardino for their work in getting the County to approve and the Legislature to create the new 507th District Court, which will bring the number of family district courts in Harris County to ten.  The 507th will be located on the 15th floor of the Civil Courthouse at 201 Caroline in the space currently occupied by the 280th Judicial District Court (a/k/a the family violence court).  Judge David Farr reports that the county is refurbishing the vacant courtroom on the first floor of the Juvenile Courthouse and the 280th District Court will move across the street soon.  Farr says that his research shows it has been 38 years (1977) since Harris County has added an additional family district court.

My research shows that this new position will eventually be on the same non-presidential-year election cycle as the other family courts, but will be on the ballot in November 2016.  The Governor will appoint someone to fill the post through December 31, 2016.   The executive committees of the political parties (made up of precinct chairs) will select their nominees to run in November 2016 and serve from January 1, 2017 through December 31, 2018.   It is believed that Governor Abbott will wait and appoint the person who is nominated by the Republican Executive Committee.  This will really change who is willing to compete for this new judgeship and who is selected.  Most assume the Governor's office would normally be more interested in legal qualifications and the approval of party leaders, whereas running to win the majority of precinct chairs is more based on grassroot support: who you know and who supports you locally.  My newsletter in August will summarize who is seeking this position and provide short biographies.
DupuyFormer Judge Dupuy Jailed for On-Line Impersonation, Demands MY E-mails
Former Galveston County Judge Christopher Dupuy was arrested and charged with on-line impersonation for allegedly posting fake sex escort ads for former or would-be girlfriends.  Click here to read the Houston Press story that summarizes the bizarre story.  Click here to read the search warrant affidavit which summarizes the clever police work that resulted in a search of Dupuy's apartment and his arrest.
Dupuy is being held on a huge bond and he filed a pro se motion seeking discovery and a reduction of his bond.  Click here to read his motion which includes a request for production of all e-mails between me and the clever person who runs the exquisitely clever Don Tequila Facebook site (See request no. 26; Dupuy asks for communications involving a lot of people in his motion).

Dupuy was indicted for and plead guilty to a perjury charge involving me and this newsletter and he then resigned.  That is when most folks at my law office got gun permits.  However, in June I had what I hope was Dupuy's last court hearing (the State Bar has still not taken his law license away).   Dupuy actually did a good job defending his client against my enforcement action and, as we sat at the counsel table and worked out a deal, no one have been able to guess our complicated past history.

(To avoid a Jabba the Hutt complaint, it should be noted that several lawyers stood up to Dupuy during his reign of terror and he was indicted on charges that involved bad behavior aimed at more than just me.  He did in the end plead guilty to the one charge involving me, however).
Supreme_courtThe Supreme Court and Family Law
Everyone knows that the Supreme Court struck down laws that ban or refuse to recongize same-sex marriages.  If you have not read the actual decision, you should  click here to read Obergefell v. Hodges.  Justice Kennedy's majority opinion has some beautiful and significant language, including:

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, "has not been reduced to any formula."  Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.

It was not long before the first same-sex divorce was filed in Harris County.  My next Mongoose Seminar will include a lot on this topic. 

Many missed another decision by the U.S. Supreme Court that ruled that the right to confront an accuser in criminal cases is not violated by allowing the hearsay testimony of a teacher about what a child said when she first disclosed abuse.  Click here to read Ohio v. Clark.  
linksUseful Links for Lawyers
Harris County Vacation Request Form
HBA Family Section Summary of Harris County Family Court Procedures

be him
Attorney Greg Enos has been through his own divorce and  child custody battle (he won) and understands  what his clients are going through.  Enos  graduated from the University of Texas Law  School and was a successful personal injury  attorney in Texas City be fore he decided his true  calling was to help families in divorce and child  custody cases. Greg Enos is active in politics and in Clear Lake area charities.  He has served as President of the Bay Area Bar Association and President of the Board of  Interfaith Caring Ministries.  The Enos Law Firm serves clients in Galveston County and Harris County, Texas.  

Greg Enos

Board Certified in Family Law, Texas Board of Legal Specialization

The Enos Law Firm