Issue: No. 68                                                                             May 24, 2016
Click here to download a 2016 Chart of Harris County Family Courts.

In this issue ....
Get ready for a Mongoose a week for a while as I make up for my hiatus.  I vow to bring to light a scandal at least as big as Pratt or Polland by the end of the year.  Not only do I plan to educate a few judges on the errors of their ways, I have also decided to bring my reform efforts to outlying counties, such a sleepy and friendly Brazoria County. 

I do a have a great book to recommend: The Midnight Assassin by Skip Hollingsworth tells the chilling tale of America's first serial killer who stalked Austin, Texas for a year in 1884-5.  Victims were pulled silently from their homes with others sleeping nearby and killed in extraordinary gruesome ways by a killer who was never caught and who simply disappeared.  London police in 1887 even considered whether their "Jack the Ripper" was the world famous killer from Austin.  I grew up in Austin and I have never heard this story until now.  The image of almost the entire terrorized town gathered on Congress Avenue on Christmas Eve under the few electric lights after two women had been found horribly killed in opposite ends of the city within minutes of each other is haunting.   The headline of the Dec. 25 Austin Daily Statesman read, "Blood!  Blood! Blood! Last night's horrible butchery."  This is a riveting and well researched book.

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
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The Mongoose

RamosRick Ramos Fails in Bid for World Domination
Attorney Rick Ramos, husband of Associate Judge Chelsie Ramos, lost his bid to unseat Harris County Republican Party Chair Paul Simpson in yesterday's runoff election.  Simpson defeated  my pal Jared Woodfill (the scourge of transgender potty goers) two years ago with the support of County Judge Ed Emmett.  Ramos was supported by the big GOP slate mailers (Hotze, Lowrey and Polland) who do not like their loss of influence under Simpson.  Ramos came in first in a three way race in March and forced the runoff election.   However, Simpson thrashed Ramos yesterday 69% to 31%.

Some Republican bloggers raised concerns about how Simpson has spent far more than donors contributed to the local GOP in the last two years while other conservative bloggers lit into Ramos.  One "TexasTrashTalk" blog in particular addressed Mr. Ramos' lack of prior Republican party involvement and even discussed his "family values" and disgustingly posted excerpts from orders in Ramos' rather exciting 2007 divorce that might make even our new GOP role model Donald Trump blush.  Given my own track record, I certainly do not hold Ramos' one divorce against him.  Donald Trump has proven that divorce and improper marital behavior will not be held against the leader of the "Christian values" party.  As long as a politician is not being a hypocrite, a divorce that did not involve proven family violence or child abuse  should not be a factor in an election and old court orders that are otherwise tightly sealed should not be posted on-line as part of a smear campaign.  Surely all of us divorce lawyers can agree on that!

A few weeks ago, I was in the 309th and Mr. Ramos was sitting in the audience section on the first row with some other lawyers.  The court reporter saw him and  went to the back and came out with a cup of coffee that she brought over to Ramos with a bow and a smile.  Everyone in the courtroom saw this obsequious behavior and noted it.  I shutter to think what influence Ramos would have had if he had been elected leader of the Trump party.  On the other hand, it is very likely the local GOP will lose most races this year in November and perhaps it was best for Rick that he did not win the chairman post this time around.  I have always like the rascal Ramos and if more Republicans were like him, the world would be a better place in my  book.

At least the Ramos family is well represented by Judge Chelsie Ramos, who is doing a really good job for Judge Prine.  I hesitate to praise any judge for fear of looking like the typical "suck ass" lawyer, but Mrs. Judge Ramos is hard working, fair, efficient and even-handed (at least until she reads this article).

Lombardino Divorce Shows the System Mostly Works
I often write about topics lawyers are already gossiping about and usually I try to share actual facts to counter the rumors that are flying about.  It is a sad fact that lawyers are talking about a new divorce case that  involves the son and grandchild of Family District Court Judge James Lombardino.  In the "divorce world" of Harris County, this case is news.

The wife, a physician, hired Jim Evans who filed for divorce for her (Evans ran against Judge Lombardino in the last general election).  The case was randomly assigned to the court of Alyssa Lemkuil, Judge Lombardino's former Associate Judge.  Lemkuil recused herself and the case went to the court of Alicia Franklin, who also recused herself.  The case then went to Judy Warne's court and Warne recused herself.  Administrative Judge Underwood then assigned Judge Tom Stansbury, who appointed an amicus attorney, Cindy Aguirre.  The young Mr. Lombardino is represented by Joe Indelicato.  The wife replaced Evans with Marcela Halmagean.  A hearing on temporary orders was started and a "band-aid" order entered.

This case to me shows that our system does actually work contrary to the suspicions of some that the system is rigged so that powerful people are able to use their influence to get results they should not.  An experienced and very fair judge from another county is hearing the case and the wife is in fact being treated fairly despite who her father-in-law is.

However, this case raises a few uncomfortable questions, such as:
  • If a new divorce case is confidential for the first 30 days it is filed, how was the young Mr. Lombardino allegedly able to see the TRO before he was served?
  • How did the case get sealed so tight that for a while the wife's lawyers could not access the case on the District Clerk web site even though the wife filed the case?
  • Why wouldn't the case have gone to Judge Underwood as soon as the first judge recused herself?
  • How can a clerk have the authority to deny the wife's new attorney access to the case even though she had filed an entry of appearance?
  • What will be done about the case the amicus attorney has pending in Judge Lombardino's court?  The matter was raised at the first hearing and Judge Stansbury suggested that the amicus or Judge Lombardino would know what to do (I assume he meant that either the amicus withdraws from that other case or Lombardino recuses himself).  However, a lawyer who works a lot in Harris County will know she will likely have cases in the future before Lombardino after his son's divorce is over.  Will Ms. Aguirre temporarily or forever decline appointments from Judge Lombardino's court even if it is the result of the random appointment wheel?  Ms. Aguirre has a reputation of integrity and fiercely advocating for children, so it is a safe bet that her concern will be what is best the child rather than what his grandfather wants and that is how it should be.
  • What happens with the cases where Mr. Indelicato represents someone right now in Judge Lombardino's court?  I would expect the parties opposing Indelicato's clients in the 308th to be concerned that Indelicato is currently representing the judge's son in a fight over the judge's grandson who is currently living in the judge's house.  Indelicato has one case set for trial June 7 in the 308th.  Will his opponent, Bobby Newman, ask the judge to recuse himself or would it ever enter Newman's mind that anyone could have more influence than him?
I hesitated to write about this case because I frankly like and get along just fine with Judge Lombardino and I appreciate his efforts behind the scenes to improve family law in Harris County.  I am sorry that his family is suffering through a divorce and I respect both parents' privacy.  Yet, the judge is a public official and how his son's case is being handled is a matter of public interest (lawyers are certainly talking about it).  i will not write about allegations or testimony in this case, because that is none of our business.  How a divorce case involving a divorce judge's son is handled proceduraly and its ethical implications are our business.

This case to me shows that our system of justice actually does work, thanks mostly to people of honesty and integrity who fill the roles of judges, clerks and lawyers.  The issues raised by this case arise from time to time in every county, especially small counties where there may be only one judge and his child's divorce causes similar concerns that are magnified because there may only be 20 lawyers in the county.  I wish the best for all involved, particularly the little child whose life is changing so dramatically.

Darrell Apffel Elected County Commissioner - Is An End in Sight to the Foolish Fight Between Judges and Commissioner's Court?
Attorney Darrell Apffel won the run off primary election yesterday for the Republican nomination to be Galveston County Commissioner and he will thus replace Ryan Dennard on January 1.  Apffel is an experienced lawyer from a family of amazing lawyers and it is hoped that he will be able to bring an end to the ridiculous feud between commissioner's court and the county's judges that has gone on far too long at a cost of almost a million dollars in legal fees.

Who Knew?  AJ Can Conduct Final Trial But Elected Judge Must Sign the Final Order
This decision could effect almost every judgment based on a final trial heard by an associate judge.

The mother filed a modification case in 2013 in Galveston County and it was transferred to  Denise Pratt's court in Harris County.  Pratt appointed Doug York the amicus attorney and the parties agreed that Associate Judge Newey could hear the final trial.  The parties waived de novo appeal and the trial was conducted before Newey off and on over several months.  Eventually, Newey ruled mostly for the father and Newey signed a final modification order.  Pratt did not sign the final order and none of the lawyers asked her to.  The mother appealed to the Court of Appeals.

The Houston First Court of Appeals dismissed the appeal for lack of appellate jurisdiction because the final order was not signed by the referring judge.   This is big news for family lawyers in Houston because we often agree for the Associate Judges to preside over final trials and we do exactly what the lawyers in this case did.  The court of appeals held that Tex. Fam. Code Sec. 201.007(a)(14) allows an AJ to sign an agreed final order or a default final order or a final order with a waiver of appearance.  However, Sec. 201.007(a)(16) otherwise only allows an AJ to "sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015."  The waiver of de novo appeal in this case was apparently made on the record but was not in the final order itself.  The majority opinion implies that a waiver on the record would suffice but would still not permit the AJ to sign the order unless Sec. 201.007(a)(14) applied.  A concurring opinion says the waiver of de novo appeal must be in the body of the order and then it would be appealable to the court of appeals.  This is a confusing opinion that seems to make little sense.  However, the real lesson is to insist that the presiding judge also sign the final order even if the AJ heard the trial.

Gerke v. Kantara, No. 01-13-00082-CV (Tex. App. - Houston [1st Dist.] 4/19/2016).

Click here to download this opinion. 
Should the Oath Given to Witnesses Include
"So Help Me God?"

"Do you swear or affirm that you will tell the truth, so help you God?"  We routinely hear court reporters and judges administer this oath to witnesses and think nothing of it.  Yet, this standard oath might be inappropriate for several reasons.

Tex. R. Evid. 603 (which is identical to the Federal Rule of Evidence 603) only requires that "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awake the witness' conscience and impress the witness' mind with the duty to do so."

"So help me God" is not a required part of the oath.  In United States v. Looper, 419 F.2d 1405, 1407 (4th Cir.1969), the Fourth Circuit held that the trial judge erred in refusing the testimony of a defendant who would not take an oath that referred to God. Specifically, Looper had told the trial judge, "I can't [take the oath] if it has God's name in it. If you ask me if I'll tell the truth, I can say that." The Fourth Circuit concluded that any form or statement that impressed on the mind and conscious of the witness the necessity for telling the truth would suffice as an oath, citing proposed Rule 603. The opinion suggested that trial judges faced with religious objections to an oath or affirmation should "make inquiry as to what form of oath or affirmation would not offend defendant's religious beliefs but would give rise to a duty to speak the truth."

In Spigarolo Ferguson v. C.I.R., 921 F.2d 588, 590 (5th Cir. 1991), the pro se litigant's Christian beliefs prevented her from swearing or affirming and the tax court judge refused to allow her to testify and dismissed her case.  The Fifth Circuit reversed and said:

     The right to free exercise of religion, guaranteed by the First Amendment to the Constitution, is one of our most protected constitutional rights. The Supreme Court has stated that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."   The protection of the free exercise clause extends to all sincere religious beliefs; courts may not evaluate religious truth.  Fed.R.Evid. 603, applicable in Tax Court ...  requires only that a witness "declare that [she] will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." As evidenced in the advisory committee notes accompanying Rule 603, Congress clearly intended to minimize any intrusion on the free exercise of religion.  

    The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required.


    If Judge Korner had attempted to accommodate Ms. Ferguson by inquiring into her objections and considering her proposed alternative, the entire matter might have been resolved without an appeal to this court. Instead, however, Judge Korner erred not only in evaluating Ms. Ferguson's religious belief, and concluding that it did not violate any "recognizable religious scruple," but also in conditioning her right to testify and present evidence on what she perceived as a violation of that belief.

The pro se party in the Ferguson case tried to get the judge to allow her to follow the Supreme Court of Louisiana decision in Staton v. Fought, 486 So.2d 745 (La.1986), as an alternative to an oath or affirmation:

    I, [Betty Ann Ferguson], do hereby declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct, and complete.

According to the Pew Research Center 2014 Religious Landscape Study, about seven percent of Americans consider themselves atheist or agnostic and 23%  describe their beliefs as not affiliated with any religion.  An oath based on a belief in God might not comply with TRE 603 if the witness does not believe in God, since such an oath would not be "in a form calculated to awake the witness' conscience."  Requiring a witness who does not believe in God to swear an oath to God would also violate the witness' constitutional rights.

Article I, section 5 of the Texas Constitution makes clear that no person can be prohibited from giving testimony or evidence because of his religious beliefs (or lack thereof):

    No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.

Paradoxically, the Texas Constitution, Article XVI, Section 1, requires appointed officials, including judges, to take two oaths that conclude, "so help me God."   In re General Electric Capital Corporation, 63 S.W.3d 568, 571 (Tex. App.-El Paso 2001, orig. proceeding) held that the "so help me God" part of the oaths for appointed officials could not be required.  The opinion concluded, "...a solemn pledge may be executed by a reference to God; however, it need not. .... For these reasons, we conclude the "so help me God" ending is not an indispensable part of the oath."

The court in Scott v. State, 80 S.W.3d 184, 190 (Tex. App.-Waco 2002, pet. ref'd) held that the defendant's First Amendment right of religious freedom was violated by a judge who refused to let him swear as follows,"I vow to my heavenly Creator that I will tell the truth and that I will do so under any penalties that are equivalent to the penalties for perjury for those who swear or affirm oaths."

In Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1219 (5th Cir. 1991), Robin Murray-O'Hair appeared for  jury duty in Austin but, as an atheist, she refused to swear an oath to tell the truth containing the phrase "so help me God."  She also refused to make an affirmation to tell the truth that contained no reference to God.  The trial judge held her in civil contempt.  The Fifth Circuit ruled that the judge could not compel a juror to affirm to tell the truth when to do so would offend her beliefs as an atheist.

The Establishment Clause of the Constitution might also seem to be a reason for a court reporter or judge to not require an oath to include "so help me God."  After all, if a school district cannot be part of a prayer at a football game, how can a government employed judge or court reporter invoke God in an oath?  However, several cases have held that "so help me God" in an oath does not violate the Establishment Clause.  See, e.g., Commonwealth v. Callahan, 519 N.E.2d 245, 252 (Mass. 1988) (holding that a juror oath concluding with the phrase "so help me God" was a permissible governmental acknowledgment of religion)  and School  Dist. v. Schempp, 374 U.S. 203, 212-13 (1963) (referring to "So help me God" oaths as an inseparable part of our nation's history and government).

So, how should a witness be sworn properly without knowing what his or her religious beliefs are?  After all, many might object if a judge first asked each witness if they believed in God before the oath was administered.  Most cases suggest that the usual "so help you God"oath be used and then if the witness objects to that oath, the judge should reasonably accommodate the witness' beliefs.  

The Fifth Circuit in Society of Separationists said:

    In holding that [the trial judge] erred, we do not mean to say that he was not courteous and thoughtful.... [T]he Constitutional guarantee of Free Exercise ... is to be watched, policed and rarely if ever trespassed. The judge's duty was to fashion statements of commitment to truth and integrity ... and to do everything that would make for absolute integrity. The [witness] must be able to articulate [his] commitment to [tell the truth and his understanding that he can be prosecuted for perjury if he does not]. The judge had a duty to fashion a statement for the prospective [witness] so that []he could elucidate these concepts. This he failed to do.

    We say that what the judge did was error ... Our decision should be understood not as chastisement by any means, but as ... a reminder that the Free Exercise Clause requires something more; here, a back-and-forth interaction designed to elicit positive cooperation from a protesting ... witness.

The U.S. Fourth Circuit Court of Appeals in United States v. Looper, 419 F.2d 1405, 1407 (4th Cir.1969) identified several informal means by which the English courts historically permitted witnesses to make their oaths and affirmations:

     With the sophistication derived from England's role as a world trader, its courts have permitted Chinese to break a saucer, a Mohammedan to bow before the Koran and touch it to his head and a Parsee to tie a rope around his waist to qualify them to tell the truth.

     419 F.2d at 1407 n. 4 (citing 6 Wigmore, Evidence in Trials at Common Law, § 1818 (3d ed.1940)).

The defendant in Fagbemi v. State, 778 S.W.2d 119, 121 (Tex. App. - Texarkana 1989, pet. ref'd) was Nigerian and was allowed to  to take an oath for truthfulness on his tribal icon when he testified that he believed if he were to lie after taking such an oath, he would be utterly destroyed within seventy-seven days.

Atheists and nonbelievers are often very reluctant to admit their beliefs in public because of the pervasive prejudice most Americans have against atheists.  One author recently wrote:

    Every single study that has ever looked at the issue has revealed massive amounts of bigotry and prejudice against atheists in America. The most recent data shows that atheists are more distrusted and despised than any other minority and that an atheist is the least likely person that Americans would vote for in a presidential election. It's not just that atheists are hated, though, but also that atheists seem to represent everything about modernity which Americans dislike or fear.

An atheist called to testify may not feel comfortable objecting to the "so help me God" part of the oath.  On the other hand, a judge probably should not just assume that a witness believes in God.  One article estimated there were over 8 million Wiccans in the United States.  A Wiccan might swear an oath to the Moon Goddess or the Horned God, but might balk at a general oath "So help me God."  Yet, many witches for good historical reasons might hesitate to admit their beliefs in public, especially if they are a witness who wants a judge or jury to believe them.

The best practice might be for the court reporter to hand the witness a card with several oaths or affirmations and ask them to select and read the one that best "awakens his conscience" according to his beliefs and will invoke his duty to tell the truth.

Two worthwhile law review articles to read if you are interested are:

Belcher, Jonathan, "Religion-Plus-Speech: The Constitutionality of Juror Oaths and Affirmations Under the First Amendment" William & Mary Law Review, vol. 34, No. 1 (1992) and Jonassen, Frederick B., 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, Cardozo Public Law, Policy and Ethics Journal, Vol. 12, No. 2, Spring 2014.

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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