Issue: No. 46              
August 21, 2014
  The Enos Law Firm
  17207 Feather Craft Lane, Webster, Texas 77598
  (281) 333-3030    Fax: (281) 488-7775
  Please forward this e-mail newsletter to everyone who cares about our family courts!  
Click here for an archive of past issues of The Mongoose.  
Dear Reader,

Gary Polland has not accepted my offer to print his response to my issue last week that described how he has been paid $1.9 million by Harris County since 2010 for court appointments, so a lot of folks still have questions we want Mr. Polland to answer.

Writing about what is wrong with family law would be a lot easier if I did not have a conscience, did not care about people's feelings or the facts or was simply a politician trying to stir up controversy. My complaint about one politically connected attorney who has earned over $1.9 million in court appointments in the last four years was taken by some as a jab at a few other attorneys who handle mostly CPS cases and who make a fair living at it (just not nearly as much as Mr. Polland).  


For example, I listed Claudia Canales on the county auditor's list of the top 22 highest paid attorneys for court appointments since January 1, 2010. Ms. Canales was number 21 on the list and earned almost exactly half of what Mr. Polland was paid during the same time period. She is actually the only attorney on the list who I really know and whose work is familiar with me. Here is what I can say with some confidence about Canales and I am pretty sure almost all lawyers and judges agree with me:

  • Canales gets her appointments because of the diligent job she does for children and her skills as a lawyer, not her political connections.
  • She works about as much each week as a lawyer can on her cases, which means she takes calls late at night and most evenings is out doing home visits herself. Her own family misses her because she is gone so often visiting children at home, the hospital, at school or at the therapist's offices.
  • Canales almost always does her own home visits and she sends her associate attorney only when Canales' schedule prevents her from doing it and the judge always knows who was sent and why. Canales does not bill for a non-lawyer to conduct home visits with children she is appointed to represent.
  • Canales does what we all should hope attorneys appointed to represent abused children do. Her practice is limited to appointed representation and it is her specialty and her passion. She truly cares about "her kids" she is assigned to represent and it shows.

I should also note that most of our family court judges also truly care about the children and parents involved in their CPS cases and they expect the attorneys they appoint in CPS cases to live up to their high expectations. I do not mean to condemn all of our judiciary or all of the attorneys who handle CPS cases.


Lastly, let me acknowledge that all too often attorneys (like me) who only handle paying, private clients look down on the lawyers who work on CPS cases.   We often forget how emotionally taxing CPS cases are, how complicated the law and procedures are and how much of a time commitment CPS cases involve. Given the comparatively low pay for CPS appointments, we all should be respecting and thanking those attorneys who work so hard for abused children. Most honestly earn what they are paid for their work.


I have received a lot of support from attorneys, judges and Republicans of all stripes.  Here is an example of the many e-mails I received, this one is from a prominent attorney who has been a leader of the family bar for decades:


Greg-once again I have to commend you for taking the plunge into more exposing public records which speak for themselves and let the people decide.  This is true Bill O'Reilly approach-fair and balanced-you decide.  I respect you as a person and respect your work as it is not partisan and I could not care less if you are liberal, conservative, liberterian, independent, black, white, yellow or brown. You expose what needs to be exposed and let the people decide. I am beyond shocked at the amount Polland got but am more shocked at the $160 MIL paid.  .... Lawyers are going to play in the system. That is a given as the system demands it. Judges need to control it by being more attentive, diverse and selective of appointments and mandatory review of vouchers.    


Another, equally prominent attorney wrote me: 


I suggest you add another field to your analysis.  If someone gets all of the paying appointments out of a court, who does that judge appoint when he needs an appointment that cannot pay a fee (i.e. a pro bono case, a pro se case, or one where the parties simply do not have the resources to pay for an amicus).  I am confident you will find that those appointments are burdened on other attorneys, not those who are lining their pockets with the paying appointments.  They carry the same obligation as the CPS appointments and are many times more time consuming.


Court appointments as political patronage is one of those issues where 99% of the attorneys agree with my position.  We just have to get the information out and motivate the judges and county commissioners (and if needed, voters) to do something about it.


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                  
 Problem_solvedA Problem Discovered and Hopefully Solved

I have spent about 50 hours in the last week looking through CPS files on-line, focusing on appointments and billing of ad litems (I did not bill the county for my time).  I saw many interesting and disturbing things.  But, as I researched, I became very concerned about something I was seeing in almost every CPS case pending in the family courts. So, I wrote a letter Tuesday to District Clerk Chris Daniel and the nine family district judges.   


I immediately heard back from Chris Daniel and several judges and within a day a solution was identified and action taken.  It seems like the problem will be solved within days.  I am not going to describe the actual problem I discovered in detail until it is fixed because I do not want to cause the harm I was worried could occur. Let's just say that I felt I was able to see way too much on-line and that the safety of children taken by CPS and their foster parents was potentially in jeopardy. 


On one hand, I am happy that immediate action was taken after I raised the issue and threatened publicity and a lawsuit against the county.  On the other hand, it troubles me that the judges knew about this issue already and nothing had been done about it.  One judge e-mailed me and said basically that this problem had worried the judges for a while and they hoped I could bring some attention to their concerns.  Say what?  You need me to help powerful judges bring attention to a very serious problem of privacy and even a life threatening problem for some kids in CPS custody?  




Everyone in the family court system (judges, lawyers and clerks) needs to stop being comfortable seeing a problem but not doing anything about it.  If there is a real problem, we all should speak up about it and work together toward a solution.



You should take part in this fundraiser for such a worthy cause.  I find fishing "icky" and it conflicts with college football on Saturday, but I am going out on a boat, handling bait and possibly slimy fish and so should you!  This law officer deserves our support in his battle with cancer.

 Polland_problem_2The Polland Problem, Part 2 

Most Republican judges and party leaders, to their credit, realize that the brewing scandal involving court appointments and their former party chair, Gary Polland, has the potential to effect the November elections.  They also realize that the current system just is not right.  They point out to me that Democratic politicians, such as legislators who are also attorneys, are getting lucrative appointments from Democratic civil judges.

The solution is very simple: a commitment by judges to appoint attorneys based on merit only and transparency of information.  All judges of both parties should simply stop using court appointments as political patronage and ALL appointments and fees should be reported and made available to the public.

Currently, the system hides appointment fees and makes it very difficult to determine accurately how much various attorneys are being paid.  The County Auditor website is a great example of sharing information with its searchable database of payments which includes all courts.  However, I cannot tell what courts those payments came from and the cause numbers appear to be wrong.  Most of the cause numbers the auditor has associated with fees paid to Mr. Polland, for example, do not appear to be cases Polland is working on.

The monthly report sent by the District Clerk on appointments misses most appointment fees and is  very incomplete because the Supreme Court order only requires the clerk to report the fees.  Judges and attorneys are not required to report appointment fees to the clerk.  A 38 page divorce decree might contain an award of $2,400 for the amicus attorney on page 27, so how is the clerk supposed to know the fee award is there?  Also, the ancient JIMS program still used by the District Clerk makes it very hard for the clerks to gather this information.

At least until yesterday, I could see CPS cases in family courts on-line and print Polland's pay vouchers and most of the pleadings he had filed.  Polland makes most of his money from the juvenile courts and I cannot access those cases on line.

Here are four findings I can report so far in my investigation into Mr. Polland's billing for fees for court appointments (in addition to the fact he has been paid $1.9 million since January 2010 for court appointments):

1.  It looks like three-quarters of Polland's civil appointments come from the three judges: disgraced former judge Denise Pratt, Judge James Lombardino and, especially, Juvenile Judge Michael Schneider.  Admittedly, this is based on the District Clerk report of fees in civil cases to the state and we know this report is incomplete, but it matches with what I can see on-line when I search for cases with Polland's bar number.  I cannot see CPS cases in juvenile courts on-line, so perhaps judges Devlin and Phillips are under-reported in this count. Maybe Schneider actually appoints Polland less than the other juvenile judges but his fees are reported and their's are not.  I know this count of cases does not include criminal cases for adults or juveniles or probate cases.  This count is based on the number of fee awards reported to the State this fiscal year.

Polland apparently does not get any appointments at all from a few really good Republican family court judges.

2.  Polland, and almost all CPS ad litems, are not complying with the Supreme Court rule that requires attorneys to redact sensitive information about children from pleadings or file the pleading with the note,"This document contains sensitive data." Polland does most of his work in the juvenile courts where these records are not posted on-line, so perhaps he was so used to that system that he did not bother with these tiresome new Supreme Court rules on privacy in court filings.  However, none of the other ad litems or even the County Attorney, who represents CPS, are  following those rules either.   


3.  Polland is billing Harris County in almost every CPS case exactly 5.0 hours for someone to perform home visits with the children he is appointed to represent as required by Tex. Family Code Sec. 107.004.
I really urge you to click here to see a sample of the dozens of bills Polland has submitted that time after time bill the county exactly 5 hours for home visits, using the exact same language each time.  In fairness, I included a voucher for four hours and one for seven hours, but 95% of his vouchers claim five hours for home visits with children.

The CPS ad litems I have talked to tell me two things: (1) they almost never bill as much as 5 hours for a home visit unless the kid lives out of town, and (2) the time billed for home visits always varies because some kids live 20 minutes away and some live an hour away and because a visit to a toddler does not take long but a visit to a troubled 16 year old might take hours.  Totally aside from the question of whether Mr. Polland himself is performing these home visits (and so far, he refuses to confirm to me that he actually does them), it seems very odd that he almost always bills 5.0 hours for this work and it seems just as odd that judges are approving his vouchers for $500 for every home visit.   In one of the sample Polland vouchers I attach to this newsletter, he billed 7.0 hours but noted that the child lived in Austin.  Driving to and from Austin at posted speeds takes about seven hours, so that number of hours also seems suspect. Maybe the home visit lasted two minutes once the person who did the home visit got to Austin.

I attach to this newsletter, along with vouchers, a few sample home visit reports which Polland filed with the court (I at least redacted these reports to protect the child). These home visit reports have blank signature blocks for Polland and are usually not signed.  These reports all state,"A home visit was conducted..."  It seems like Polland should write,"I conducted a home visit..." or "The guardian/attorney ad litem conducted a home visit..."  Polland's wording of these reports almost implies that someone other than Mr. Polland performed the home visit.  However, that surely could not be the case if Polland is billing the county as if he, the attorney appointed by the judge and the only person authorized by statute to be paid by the county, performed the home visit.

The good  family court judges who care and follow the law seem to universally expect the person they appoint as ad litem to personally perform the home visits with children as required by law.  I certainly hope this is what is happening in Mr. Polland's cases.

4.  Polland seems to be the only ad litem who files in almost every case a motion to be paid $100 instead of $75 per hour for out of court work, which would include home visits.  These motions never seem to be ruled on, because his proposed orders are never signed by the judges.  However, the judges are approving vouchers that pay Polland $100 per hour for home visits. 


To be fair to Mr. Polland, besides last week's invitation to provide his side of the story contained in my newsletter, I sent this fax to Polland: 


Mr. Polland:  

I want to again make it clear that I will print verbatim in my next newsletter, which I plan to issue on Wednesday, anything you want to say in response to my last article about you.  Please let me know if I got any of the facts wrong (I already corrected the error regarding Lana vs. Jeff Shadwick).  I want to be fair to you and get the facts 100% correct.  Please e-mail me at

I specifically seek your answers to these questions:

1.    Do you personally perform home visits with the children you represent?  If not, do you send other lawyers or do you send non-lawyers?  Do the judges know you are doing this?  Do your invoices to the county or your home study reports make clear that you are not the one performing the home visits if it is not you who visits the child?

2.    Why do almost all of your invoices to the county bill 5.0 hours for most home visits?

3.    Why don't you put "This document contains sensitive data" at the top of your pleadings in CPS cases?  Do you realize that some of your home visit reports with photographs of the children are viewable on-line on the District Clerk's web site?  


I just paid the County Auditor a big chunk of money to obtain every voucher Polland submitted during a three month period last year so that a detailed, day-by-day analysis can be performed.  My investigators will soon be checking with foster parents to see who exactly did the home visits with the children CPS placed with them.  Expect to hear more from me soon!  


If Mr. Polland writes me back and answers my questions, I will issue an immediate special issue.  He can put some of this controversy to an end by simply affirming that he does his own home visits and his bills accurately reflect the time he spends on his cases.





be him
"Together, attorneys can improve our family courts!"
In this Issue


Thoughts and Prayers to Carel Stith and Bonnie Hellums

We all need to send our best wishes and, if you are religious, prayers to Carel Stith and his wife, Judge Bonnie Hellums.  Stith was badly hurt when a hit-and-run driver in a car struck him while he was riding his bicycle.  Stith is at Hermann Hospital.

Carel Stith, a former University of Nebraska defensive tackle who played three years for the Houston Oilers in the late 1960s, is a sweet guy but a tough man.  We all wish him the best as he tackles a long and difficult recovery.

Judge Hellums is understandably going to be spending a lot of time with her husband and a schedule of visiting judges for the 247th District Court has been announced:

August 21-22 - John Wooldridge

Aug. 25 - Sept. 5 - Carolyn Marks Johnson

September 8 -11 - Doug Warne

September 12  - TBA

September 15 - 30 - Carolyn Marks Johnson

forumFamily Court Judge Candidate Forum September 21

A bi-partisan group now called Family Lawyers For Good Judges is sponsoring a candidate forum and CLE event on September 21 at the Joe Green auditorium at South Texas College of Law.  The candidates for Harris County family court benches will speak and the group has commitments from Judges Moore and Millard to conduct a lunchtime CLE on "What makes a good family law Judge."   More information will follow.  Contact Marcia Zimmerman, Bill De La Garza, or Kimberly Levi for more information.  Click here for their web site.

BikiniBikini Model/Attorney Struggles Against Prejudice

Folks, I just report the news.  Click here for an article entitled,"Lawyering While Hot."  Click here to read the essay by the subject of that article, a new California attorney Cathy McCathy.  McCathy's essay is titled,"I'm A Lawyer And A Model, And It Doesn't Stop There."  This brave, civil rights pioneer has opened a new front on the battle for women to be taken seriously in the legal profession. In her essay, McCarthy wrote:

...this is not the first time that I have faced backlash from colleagues who think that a lawyer should not also get the privilege of "looking hot in a bikini." I was ostracized at school by several classmates and even shunned by some professors.

We should all look in a mirror (preferably while wearing a bikini or thong) and ask ourselves if we harbor this sort of cruel prejudice against attorneys who are also able to make a living posing almost nude and are brave enough to speak about their suffering on the Internet.

Ms. McCarthy could perhaps teach a class on how to market a new law practice, because she has certainly garnered herself a lot of media attention.

I am starting an occasional series of articles on state and federal criminal laws which family law attorneys need to be aware of. I will look at Interference with Child Custody in my next issue.

TamperingThe Crime of Tampering With a Government Record

Texas Penal Code Sec. 37.10 states in part:

37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he: (1) knowingly makes a false entry in, or false alteration of, a governmental record; (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;....

Sec. 37.01(2) defines a "government record" to mean: 

(A) anything belonging to, received by, or kept by government for information, including a court record;


This is the law former Judge Denise Pratt is alleged to have violated when she apparently back-dated court orders. 


One example of how attorneys can run afoul of this law arose in San Antonio recently: 


Former defense attorney Hilda Valadez, who pleaded guilty to charges of forging judges' signatures and double billing the county for indigent defense work, was sentenced Monday to 10 years in prison.
Valadez, 52, was once regarded as the county's busiest court-appointed defense attorney. She was paid nearly $600,000 from 2008 to 2011, according to the district attorney's office.

"Lawyer Sent to Prison for Billing Scheme,", April 21, 2014.

The statute has been applied to a deputy constable who submitted false time sheets for pay to the county in State v. Collier, 285 S.W.3d 133, 136-37 (Tex. App.-Houston [1st Dist] 2009, no pet.).

Tampering with a government record is a Class A misdemeanor,"unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Sec. 37.10(c).

For example and for educational purposes only, an ad litem attorney in a CPS case who files a pleading called "Attorney Ad Litem's Statement of Compliance" which consists of just 38 words, arguably commits the crime of tampering with a government record if the ad litem submits a false pay voucher that bills 0.50 hours or 30 minutes for "Draft Attorney Ad Litem's Statement of Compliance."  I can type the body of this pleading with one finger in three minutes and the only blank that changes from case to case is the date of the home visit.  A trained paralegal would call up the form on the word processor, insert the case caption, type in the date of the home visit and the pleading would be ready for the attorney to sign in 90 seconds. To be very clear, I am not suggesting Mr. Polland has done this because he does not file these written statements that are required by Family Code Sec. 107.004 (he instead files home visit reports which I think satisfy that law's requirement of certifying that a home visit was performed before each court hearing).

An attorney appointed in a CPS case who knowingly submits a false pay voucher that over bills or which bills for something the attorney did not do is," knowingly mak[ing] a false entry in ... a governmental record" and "mak[ing], present[ing], or use[ing] any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record..."  The attorney is also committing theft from the county.  Each fraudulent pay voucher would be a separate felony.

At some point, the District Attorney needs to look at ad litem billing as closely as I am.
GunsStandard Mutual Injunctions Can Make Your Gun Owning Client a Federal Criminal! 
Standard injunctions routinely imposed in family cases in Texas can make cause our clients to violate "The Brady Bill", 18 U.S.C.A. � 922(g), which states:

"It shall be unlawful for any person-...
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; .."

The mutual injunctions used in place in divorce cases in Texas include standard language prohibiting the use or threatened use of violence by one party to the divorce case against the other party. Therefore, it would appear that anyone subject to such an injunction in a divorce case is prohibited from possessing a firearm, even if no domestic violence has ever occurred or been threatened.

In U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), the husband, Dr. Emerson, appeared pro se at a temporary hearing in his divorce case. His wife, testified mostly on financial matters, but also testified about a threat by Dr. Emerson to kill Mrs. Emerson's boyfriend. The divorce court issued standard temporary injunctions,  including:

"2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.
4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.
5. Threatening Petitioner or a child of either party with imminent bodily injury."

When the temporary orders were entered, Dr. Emerson owned a pistol, which he had purchased a year earlier. Dr. Emerson never got rid of the pistol and federal grand jury  returned a five-count indictment against him. Four of the counts were eventually dismissed, but,"Count 1 . . . alleged that Emerson on November 16, 1998, unlawfully possessed 'in and affecting interstate commerce' a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. � 922(g)(8)."

The district court ultimately dismissed Count 1 of the indictment on Second and Fifth Amendment grounds, and the government appealed.

The Fifth Circuit followed a  literal reading of the statute, which states only that the Court must explicitly forbid the use of threats or violence against a spouse or minor child. The court refused to read into the statute a requirement that there be a finding of abuse or danger of abuse.  The Court of Appeals reversed the trial court's dismissal and remanded the case to the lower court for prosecution.
The Fifth's Circuit interpretation of 18 U.S.C. � 922(g) makes clear that it a federal criminal offense to possess a firearm while under an injunction, issued after notice and hearing, which contains the standard violence/harassment language which is included in almost all of the mutual injunctions and temporary orders in divorce cases.  Given that almost half the households in Texas contain at least one gun, this decision is one all family lawyers must bear in mind when drafting temporary orders.

Here is what Lynn Kamin wrote about the Emerson case in an article for the State Bar Paralegal Division:

First, it should be noted that the [Emerson] Court makes it clear that the law does not apply to an individual served with an ex parte temporary restraining order. The Emerson Court makes a point of clarifying that an August 28, 1998, temporary restraining order which was served on Dr. Emerson was "not the order alleged in the indictment, and in any event it is not within the terms of � 922(g)(8)(A) which requires that the order have been 'issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.' " Id. at 211 & n2.
However, if injunctions are put in place as a result of a temporary hearing or after a temporary hearing occurs, the party possessing the firearm is in violation of the federal statute. It would appear that this would be the case even if the parties waive a hearing and enter into agreed mutual injunctions or agreed temporary orders which include the "magic words" regarding threats or violence. Moreover, there are no statutory exceptions included in 18 U.S.C. � 922(g), so it would appear that once the injunction is in place, the ban on possession is absolute, until further order of the Court.

This ruling places on the family law practitioner the duty to explain the ramifications of the boilerplate injunction language. While previously, mutual injunctions could generally be agreed to with a minimal amount of controversy, now the lawyer must clarify whether or not his client possesses any firearms before agreeing to any injunctions containing such language. Should the client own a gun, it will be necessary to eliminate the language from the injunctions which would trigger the applicability of 18 U.S.C. � 922(g).

In a scenario where your client owns a gun and the other side is insisting on including the injunctions against violence or threats in any injunctions, you have little choice but to seek a hearing, unless your client agrees to voluntarily relinquish his firearms during the pendancy of the suit. At the hearing, it will be critical for you to spell out specifically for the Court your concerns regarding the applicability of 18 U.S.C. � 922(g) and the reasons why your client's right to keep his firearms should outweigh the other side's equitable right to an injunction. Should the Court issue an injunction anyway, you should ask the Court to specifically order a date and place by which your client must turn over his weapons, and include language regarding his right to retrieve those weapons upon the expiration of the order. Furthermore, to avoid future complications, once the case is resolved, it may be worthwhile to request the Court to enter an order dissolving the temporary injunctions and specifically authorizing your client to re-gain possession of his weapons.

For clients whose occupations require that they be armed, such as law enforcement officers, avoiding having such an injunction imposed by the Court obviously takes on much greater significance. If your client has engaged in behavior that would appear to make him a clear and present danger to the other party or the child, your chances of avoiding the "magic words" from the Court would appear to be slim. If, however, your client's behavior has not risen to such a level, the fact that the imposition of such an injunction would basically strip him of his livelihood should be enough to prevent the Court from making such a draconian ruling, so long as you make it clear to the Court what the consequences of such a ruling would be, in light of the Emerson decision. If the Court chooses to enter such an injunction anyway, it would appear that mandamus would be the most applicable remedy to pursue.













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 very successful personal injury  attorney in Texas City before he decided his true  calling was to help families in divorce and child  custody cases. Greg Enos is active in politics and in Clear Lake area charities.  He has served as President of the Bay Area Bar Association and President of the Board of  Interfaith Caring Ministries. 

Attorney Greg Enos