What are the three main reasons you are running for this office? Do you see any potential conflicts of interest?
I am the only candidate in this race with experience in the cases this court handles.
I have been a practicing attorney for 24 years, with my practice focused on civil cases. The 284th is specialized as a civil court, making that experience invaluable (and unmatched by others in this race). In those 24 years, I have represented clients on both the plaintiff and the defense side in cases involving bad faith claims against insurance carriers, commercial disputes, probate litigation, personal injury, legal malpractice, medical malpractice, breach of contract, breach of fiduciary duty, violations of the DTPA, RCLA, and the Texas Theft Liability Act, fraud, forgery, theft, conversions, trespass to try title actions, foreclosure actions, all manner of tort cases, statutory construction cases, HOA lawsuits, covenant enforcement, declaratory judgment actions, banking disputes, guardianships, estate administrations, collection matters, and many others.
I have also briefed and argued cases to numerous appellate courts in Texas, including the Texas Supreme Court. To observe/listen to my appearances, please go to:
Video of 2016 appearance:
http://www.texasbarcle.com/CLE/SCPLAYER.ASP?sCaseNo=15-0387
– My part of the argument begins at the 15:50 time marker and goes through the 37:10 time marker.
Audio of 2004 appearance:
http://www.txcourts.gov/All_Archived_Documents/SupremeCourt/oralarguments/2004/04-0961.mp3
– My part of the argument begins at the 13:46 time marker and goes through the 34:02 time marker (ending when there is 8:40 remaining).
I was also a distinguished law student. I received my Juris Doctorate from the Baylor University School of Law. I was the Editor-In-Chief of the Baylor Law Review, and, prior to that, a Notes and Comments Editor and an Associate Editor; I earned numerous awards, including the prestigious President’s Award; I competed in mock trial and moot court, and received awards as follows:
ABA Moot Court Team – Placed 3rd at Texas State Competition (Spring 1992)
Placed 3rd at National Competition (Summer 1992)
Placed 3rd at Texas State Competition (Spring 1993)
Placed 5th at National Competition (Summer 1993)
Received 3rd Place Individual Speaker Award at National Competition (Summer 1993)
Baylor Mock Trial Team – Won State Championship (Spring 1993);
I won the Nathan M. Burkan Intellectual Property Law award for my paper on copyright law; I was a three year recipient of the Leon Jaworski Advocacy Scholarship, awarded for excellence in advocacy, with a required 3.5 GPA to maintain the award each year; and I graduated summa cum laude, ranked 5th in my class. (My undergraduate education was also at Baylor University, where I received my Bachelor of Science in Education (English Specialization), and graduated in the top 10% of my class.)
I have continued to distinguish myself in the legal community as a practicing attorney. Not only am I admitted to practice law in all Texas courts by the Supreme Court of Texas, but I am also licensed to appear before the federal Southern District of Texas district courts, Southern District of Texas bankruptcy courts, and the U.S. Fifth Circuit Court of Appeals (not all Texas attorneys have those federal licenses; they are acquired through recommendation proceedings). I am a past-president and director of the Montgomery County Bar Association. I have also taught law to lawyers at Continuing Legal Education classes, and to judges through the Texas Center for the Judiciary at a Judicial Conference. I have testified about attorneys fees and legal malpractice in the following cases:
March 2009 LDC, LLC v. John Cox Partners, Ltd. In the 410th District Court, Montgomery County, Texas
July 2009 In re Estate of Parmley Arbitration Proceeding from County Court at Law #2, Montgomery County, Texas
December 2009 The Woodlands Community Ass’n
v. Pimienta In the 359th District Court, Montgomery County, Texas
January 2010 Moore v. Alm In the 12th District Court, Walker County, Texas
March 2013 In re Sleeper Estate In County Court at Law #2, Montgomery County, Texas
April 2013 Mayfield v. Stewart In the 284th District Court, Montgomery County, Texas
June 2013 Thomas v. Ratcliff Signature Homes, Inc. In County Court at Law #2, Montgomery County, Texas
September 2013 LDC, LLC v. Smith In the 359th District Court, Montgomery County, Texas
February 2014 Romano v. Miller In County Court at Law #2, Montgomery County, Texas
January 2016 Sumner v. KHBM Partners II, Ltd. In the 284th District Court, Montgomery County, Texas
And, finally, I bring a unique perspective to this Court because I am not only a 24 year civil attorney who understands the needs of lawyers and litigants with courts, but I’ve also been the Staff Attorney for a civil court so that I understand the inner-workings of the Montgomery County courts.
I have done some videos about my positions. You can find them at:
https://www.youtube.com/channel/UCV2gWeTt5ICEstV7GHVfZlQ
Do you think judges should be elected by the people, or appointed by a commission?
Elected by the people – though that has its own difficulties. It is difficult for voters to keep track of the different courts and their roles (by way of example, none of the questions here pertain to complex civil litigation, and several pertain to criminal law, though this court only hears civil cases). In an attempt to assist with that, I have done a series of videos as a way to instruct people on that issue:
https://www.youtube.com/channel/UCV2gWeTt5ICEstV7GHVfZlQ
Appointments take voters out of the equation. I consider that undesirable.
What differentiates you from your opponents?
I Am the Only Candidate With Civil Experience: I have the experience to handle this court’s workload. It is a Civil District Court. In 2016, the people spoke – they want specialized courts with specialized judges. The 284th is the civil court with the highest number fo cases in Texas. We need a civil specialist who can hit the ground running. There’s no time for learning on the job. I am the only candidate in this race with extensive civil experience in all of the variety of civil cases pending in this court. My opponent’s experience is working in criminal cases. She would be a better fit than I am for a specialized criminal court, just as I am a better fit than she is for this specialized civil court. (My opponent has listed experience in civil commitment cases. Those are civil cases, but those are heard by the judges who issued the criminal convictions to a defendant, which means that there will be none of that type of case in this court.)
I Am the Only Candidate Who Can Assist With the Current Status of the Court: Montgomery County’s Office of Court Administration did a measured case study, and determined that we need 4 full-time civil courts to handle the caseload. That should be no surprise given that we are in a County of just shy of 600,000 people, with the fastest growing city in the country situated here, and a number of the businesses – including big businesses, like CB&I and Anadarko, located here. Those people and businesses need their civil cases handled efficiently and well, and it takes 4 full-time civil courts to do that, but right now we have ... 1. The 284th is the only full-time civil court. I will do nothing to further lessen the attention civil cases are receiving. This Court will remain specialized civil if I am elected, and I am particularly well-suited to handle those with 24 years of experience in complex civil cases, coupled with experience as the staff attorney for a civil court where I learned backstage how to handle a civil docket efficiently.
I Am the Only Candidate Aware of Where Changes Need to Be Made: We don’t need to make any changes to what kinds of cases this Court hears – we just need to make sure it is captained by a civil case attorney who can handle them, like me. The current judge of this court – Judge Cara Wood (who is retiring at the end of this term) – is under trying circumstances. She has a 90% disposition rate with over a thousand case pending at any moment in time. The problem with the backlog is not a product of this court, it is a product of needing 4 full-time civil courts and only having one. Of the 7 District Courts, we have:
1 family court – The 418th which the legislature designated as a general jurisdiction which gives preference to family cases
4 criminal courts – The 9th, 221st, 359th, and 435th
1 split court – The 410th which does half civil/half family
1 civil court – The 284th
The problem to address is not with the 284th – it is with the lack of other full-time Civil District Courts. We need 3 more of our judges to help with civil cases as they are able; I’ll lead the charge to make that change.
Please describe the changes you will make to improve the efficiency of your court, yet remain thoughful about rulings/orders - that allows all parties to be heard and their arguments considered. Please specifically address how many days a year your court will be “in session.”
What I have learned while working for what the Office of Court Administration in Austin called the “Flagship” court of Texas (Montgomery County Court at Law #2) is that the following items work – and I’ll implement them all:
a. Stagger hearing times, so that people don’t come for a 9:00 docket and wait until 11:50 to be heard. Instead, we’ll have an 8:30 docket, a 9:00 docket, a 9:30 docket, and so on.
b. Have hearings during breaks in trials to maximize time efficiency.
c. Rule on pending motions the day they are considered so that nothing lingers and the parties know where they stand at all times.
d. Cram as many bench (i.e., non-jury trials) into a week as possible (CCL2 would often do 12 trials in a week that way).
e. Conduct monthly DWOP dockets (those are dismissal dockets to eliminate cases where there is no activity for a length of time and the case appears to have stagnated). If the parties want to avoid dismissal, then they will appear at the hearing and the case will be set for trial – that gets live cases moving again. But if no one appears to complain, then the case is dismissed. Often, CCL2 could eliminate 90 cases in one fell swoop by use of this practice.
f. Have regular status conferences to make sure the cases are moving.
Judge Lee Rosenthal also uses a procedure which saves a lot of time and keeps things moving which I would implement:
g. The conference call about discovery disputes. A 15 minute phone call could get things moving and avoid a 15 minute drive to the courthouse, a 45 minute wait while there, a 25 minute hearing, and a 15 minute drive back.
And finally:
h. I would call for more than one jury when possible in order to have more than one jury trial a week.
The Court will be in session from 8:00 - 5:00 every Mon.-Fri. except for county holidays. I will work well before and after the times that the Court is “in session”.
Are the United States and Texas constitutions living documents? Please answer in the context of Progressivism versus Originalism.
No.
The founders allowed the constitution to be changed, and deliberately made it a difficult procedure so that it would not become unstable; the Texas Constitution should be approached in the same manner.
Judicial activism disguised as judicial interpretation is a danger to the sanctity of our documents. The constitutions say what they say and the words must be interpreted as written.
Progressives claim that the constitutions must be read in connection with the changing times, but that argument proves too much. If, as progressives say, those who wrote our constitutions could never have imagined the changes of modern day life, then the constitutions do not address those changes, regardless of how much some judge might want to butcher or strain the words written.
And then again, the Constitutions are capable of being amended so if some changing-times-imperative exists, then the procedure is in place to amend the Constitutions to allow those changes explicitly, and not implicitly by judicial rulings. By way of example, thinking about the big changes to the Texas Constitution regarding now allowing home equity loans. If we have a major societal change which requires a change to either constitution, then the process of amending the constitution should be done by vote, not by judicial fiat. Texans amend the Texas Constitution when a change needs to be made and has adequate voter approval; the federal government may amend via a constitutional convention or a vote of the state Legislatures on a Congressional proposal. That’s how constitutions are amended. It is impermissible for a judge to rewrite our Constitutions.
Please describe what you believe are the most significant issues in this race, why and what you'll do to address them?
Specialized Courts Require Specialized Judges: The most pressing issue is to elect a judge with a thorough understanding gained through thorough experience regarding civil cases. I have 24 years of understanding and experience regarding civil cases. That matters because we need someone who understands not only what the law is, but how it is applied and what the applicable review standards are. With 1680 pending cases, the voters of this County should expect nothing less.
Please also see my answers to Questions 3 (“What differentiates you from your opponents?”) and 4 (“Please describe the changes you will make to improve the efficiency of your court, yet remain thoughtful about rulings/orders – that allows all parties to be heard and their arguments considered. Please specifically address how many days a year your court will be ‘in session.’”).
The County Auditor: The Texas Constitution and the Texas Local Government Code give control over the Montgomery County Auditing Department to the District Court Judges, not to the Commissioners Court. The rationale is to create separation and independence with the necessary objectivity of the Auditor from the politics of the Commissioners Court. That separation and independence are achieved by giving full control over the County Auditor Department to the District Court Judges.
The Auditor’s key mission is to "see[] to the strict enforcement of the law governing county finances." Tex. Loc. Gov’t Code §112.006(b). That is done through a variety of tasks, including checking on the financial operations of County departments (Tex. Loc. Gov’t Code §115.001), doing the accounting and record keeping for the County (Tex. Loc. Gov’t Code §112.006-007), and conducting random audits of different departments (Tex. Loc. Gov’t Code §115.031 et seq.; Tex. Loc. Gov’t Code §115.041, et seq.). Basically, the Commissioners Court sets the County’s budget, and the Auditor makes sure that everything that happens with the County’s assets and money is consistent with the law and with the budget.
But the buck stops with the District Court Judges. A majority of the District Court Judges appoints the County Auditor for a 2 year term (terms begin on January 1st of every odd numbered year), and once someone is appointed, the District Court Judges then consider whether to approve his or her staff and budget. But the District Court Judges cannot call it a day once that is done because, in addition to the power to appoint the Auditor, the District Court Judges have the power to remove the Auditor, too. The Auditor is required to make monthly and annual reports to the Commissioners Court and to the District Court Judges (Tex. Loc. Gov’t Code §114.025). The District Court Judges need to review those reports and be attentive to how the Court’s assets are being handled, in recognition that the Auditor is a check on the financial operations of the County’s Offices. That is a role I will embrace and work hard to protect the taxpayer’s assets. As I’ve said, I’m prepare to audit the Auditor.
What Texas State court decision do you think has most impacted society? How and Why?
I have four (sorry – but it was actually hard to just find four):
Alexander v. Hagedorn, 226 S.W.2d 996 (Tex. 1950):
This case defines the importance of enforcing the Rule of Law, even in the face of emotional pulls to the contrary. Mr. Hagedorn was sued, failed to file an answer, and suffered a default judgment taken against him. But the facts of his case provide an emotional pull as to why that judgment was just sad:
“Hagedorn was not born ‘in this country’ and at the time of the trial of his bill of review was 75 years old, but he had lived in Gonzales, Hays and Caldwell Counties for 52 years. He cannot read or write the English language. So, when the citation was served on him in the damage suit, he requested the deputy sheriff to explain its meaning. The officer explained that it meant that the Alexanders were suing Hagedorn for damages. He told Hagedorn what they alleged in support of their demands and that the citation required Hagedorn to appear in district court at Lockhart on September 1, 1947, to answer the suit. According to the trial judge’s findings of fact, Hagedorn went to the district courtroom on September 1 but found nobody there, whereupon he went to the district clerk’s office and told the clerk he was there to answer the Alexander’s suit. The clerk told Hagedorn that the district judge was not in Lockhart and that no court would be held that week. Asked by the clerk whether he had an attorney, Hagedorn replied that he did not. He then gave the clerk his address, requesting the clerk to notify him when to return to defend the suit. Hagedorn ‘understood that the Clerk would notify him when he should return to Lockhart for the purpose of defending the suit but did not understand that he was required to employ an attorney or to do anything more than he had done in response to the process served on him.’ Then Hagedorn went home; he employed no attorney; and, receiving no word from the clerk ‘or from any other person’ relative to the suit, he did nothing further about it until after April 1, 1948, when he learned that garnishment had been run against his bank account following a judgment rendered against him on December 8, 1947, three months and one week after he had his conversation with the clerk. Then he did employ attorneys and filed this action. The trial court found that Hagedorn ‘had a complete and absolute defense’ to the Alexanders’ suit in that he did not own the mule”.
Nonetheless, the Court affirmed the default judgment, noting that Texas uses “the fundamental policy that judgments must become final at some point.” The lesson here (besides file an answer) is that emotional pulls do not change what the law says – the Rule of Law is absolute.
Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995):
This case is important to Texas in its approach of defining the clarity required to have enforceable court orders. Orders must provide a clear understanding of what is permitted and what is prohibited, but “[t]The order need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemner may imagine in order to declare it vague.”
Pidgeon v. Turner, ___ S.W.3d ___ (Tex. 2017):
This case remanded the decision back to the trial court related to same-sex benefits. The Supreme Court recognized some omissions in Obergefell which permitted reconsideration about the benefits rights, if any, to be afforded to same-sex couples.
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995):
This opinion did a great deal to eliminate junk science from cases, thereby deterring the filing of frivolous lawsuits. Courts must constrain the use of expert testimony as the Court colorfully opined:
An expert witness may be very believable, but his or her conclusions may be based upon unreliable methodology. As DuPont points out, a person with a degree should not be allowed to testify that the world is flat, that the moon is made of green cheese, or that the Earth is the center of the solar system.
Id. at 558 (Tex. 1995) (emphasis supplied). The reason for the concern is straightforward:
Professional expert witnesses are available to render an opinion on almost any theory, regardless of its merit....While many of these experts undoubtedly hold reliable opinions which are of invaluable assistance to the jury, there are some experts who ‘are more than willing to proffer opinions of dubious value for the proper fee.’ ... Expert witnesses can have an extremely prejudicial impact on the jury, in part because of the way in which the jury perceives a witness labeled as an expert....A witness who has been admitted by the trial court as an expert often appears inherently more credible to the jury than does a lay witness. Consequently, a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert.
Id. at 553 (citations omitted) (emphasis supplied). For that reason, trial judges are “gatekeepers” with “a heightened responsibility to ensure that expert testimony show some indicia of reliability” before permitting this testimony to be presented to the jury. Id. To be permitted to testify, the Judge must measure the expert’s methodology against six non-exclusive factors. Id. at 557. The factors are relevant to showing whether the expert is “a hired gun or a person whose opinion in the courtroom will withstand the same scrutiny that it would among his professional peers.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725 (Tex. 1998) (citing Robinson). Expert testimony is unreliable and inadmissible if it is “not grounded ‘in the methods and procedures of science’ [and] is no more than ‘subjective belief or unsupported speculation.’” Robinson, 923 S.W.2d at 557. The strict nature of this test evens the playing field at trial – no more Ph.D.s saying whatever they are hired to say – and prevents shaky and frivolous lawsuits from being filed.
As a judge, what do you believe the goals of the criminal justice system should be?
Remembering that the 284th is a civil court – not a criminal court – the goals should be punishment for those who wrong us, deterrence for those who are thinking about it.
Apparently in conflict with current pratice in the courts Art. 19.27. of the Texas Code of Criminal Procedure states "ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge." What is the practical application of this statute?
Just as the statute says, a defendant may challenge the jurors on a Grand Jury before they are impaneled, and may even be brought from the jail to do so. Because a defendant waives objections to an indictment issued by a grand jury with a disqualified person seated on it if there is no objection to the array before the disqualified person was seated, this procedure is important.
That said, there is case law suggesting that perhaps deviations from this procedure via a pre-trial motion to quash the indictment might be allowable. See, e.g., Ex parte Covin, 277 S.W.2d 109 (Tex. Crim. App. 1955) (dicta – a defendant may use a motion to quash to address a grand juror’s lack of qualifications); Mullings v. State, 917 S.W.2d 334, 336 (Tex. App. – Eastland 1996, pet. dism’d as improvidently granted) (mentions that a grand juror who was a complainant could be addressed in a pre-trial motion to quash); Acosta v. State, 640 S.W.2d 381, 383 (Tex. App. – San Antonio 1982, habeas relief granted, jdgm’t vacated on other grounds by 672 S.W.2d 470) (“Challenge to the array may be by a motion to quash the indictment before trial”).
Who or which class of Texan does the Code of Criminal procedure 20.09. have in mind when it mentions "any Credible Person". How does the particular class invoke initiation of a Grand Jury investigation? CCP Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.
Credible person means what it means in common parlance – someone who provides information sufficient to show that there is a basis for the person to know it, no basis for the person to deceive as to it, and, if true, that an indictment could stem from it. Bear in mind that the specifically named “credible person” is the District Attorney (“the attorney representing the State”).
So, by way of example, where an officer receives information from a person who “did not actually know, but only concluded, that the checks were stolen”, the officer is justified in treating that person as a credible person. Muniga v. State, 911 S.W.2d 164, 167 (Tex. App. – Corpus Christi 1995). Likewise, “any person purporting to be a crime victim or witness may be presumed reliable, though the police must remain alert to the existence of any circumstances which would make that presumption inoperative in a particular case.” W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.4(a), p. 719 (West 1987); see also, e.g., Ramirez v. State, 658 S.W.2d 808, 810 (Tex. App. – Corpus Christi 1983), aff’d, 672 S.W.2d 480 (Tex. Crim. App.1984); Williams v. State, 621 S.W.2d 613, 614-15 (Tex. Crim. App. 1981). The credibility of a complaining party is simply judged on a case-by-case basis with an eye towards all of the circumstances.
