Thursday, March 30, 2017

DOES JUSTICE AND EQUITY EXIST IN FAMILY COURTS?

In one hearing, the opinion says, when speaking to a woman who was seeking an order of protection against her then-husband in a domestic violence case, Watkins blamed the woman for “shooting off your fat mouth about what happened,” told her to “Shut up!” and then continued: “Shut up! You stupid woman.

 Can’t even act properly. One more word out of you that you aren’t asked a question you’re out of here, and you will be found in direct contempt of court and I will fine you appropriately. So, shut your mouth. You know I hate it when people are just acting out of sheer spite and stupidity.” The court also criticized Watkins for failing to make timely rulings, failing to comply with court orders to do so and failing to see that his staff timely completed required tasks, such as entering protective orders into the state’s domestic violence registry.

 The Charleston Gazette says Watkins did not respond to a Tuesday phone call seeking comment and notes that the court entered an order that retains Deloris Nibert, a former Mason County family court judge who was appointed by the court in December to handle Watkins’ caseload after he took an emergency medical leave. Watkins did not contest the conduct cited by a hearing board of the Judicial Investigation Commission when it recommended that he be suspended without pay for the remainder of his term in office, which concludes on Dec. 31, 2016.

 However, he argued that the sanction amounted to removal from office, which the state constitution allows only the West Virginia legislature to do, by impeachment. Hence, the judge said, the supreme court didn’t have the power to suspend him for the rest of his term. The court disagreed, distinguishing impeachment, which would also have stripped Watkins of his pension and prohibited him from serving in office again, from a suspension and saying that public policy requires that the court use its inherent powers to protect lawyers and litigants from a judge who is unable or unwilling to do his job properly.

It also censured Watkins for 24 violations of nine canons of the state’s Code of Judicial Conduct, which are printed in full in the opinion. “Socrates said, ‘Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially,’” the court wrote. “We recognize that regulating the demeanor of a judge is a difficult task, because judges are human and may occasionally display anger or annoyance, and lawyers and litigants sometimes incite judges. Judges must also be allowed some flexibility in criticizing the performance of lawyers who appear before them.

But a judge owes a duty to treat lawyers and litigants courteously, to hear them patiently, to study their arguments and evidence conscientiously, and to decide their cases promptly.” In a concurring opinion (PDF), Chief Justice Brent Benjamin agreed that Watkins should be suspended without pay for the rest of his term but disagreed about the manner in which the court imposed this sanction. Instead of using inherent judicial powers, which opens the door to potential misuse in the future for political reasons, the court should have simply imposed consecutively the one-year suspensions it is clearly authorized to impose under the state constitution, he wrote.

 “While I have the utmost respect for my colleagues and the professionalism of our current court and share their belief that the admittedly harsh sanction in this case is fully justified, I fear how a highly partisan or polarized future court might misuse this expansive new precedent.”

Wednesday, March 29, 2017

WHY ARE JUDGES NOT SUBJECT TO AMERICAN LAWS?

TEXAS CODE OF JUDICIAL CONDUCT (As amended by the Supreme Court of Texas through August 22, 2002) Preamble Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

 The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

 Canon 1: Upholding the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.

Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. B. A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness. C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

 Canon 3: Performing the Duties of Judicial Office Impartially and Diligently A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. Judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply: B. Adjudicative Responsibilities.

 (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.

 (2) A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(3) A judge shall require order and decorum in proceedings before the judge. (4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.

 (5) A judge shall perform judicial duties without bias or prejudice. (6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

 (7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.

 A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control. This subsection does not prohibit: (a) communications concerning uncontested administrative or uncontested procedural matters; (b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties; (c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond; (d) consulting with other judges or with court personnel; (e) considering an ex parte communication expressly authorized by law.

 (9) A judge should dispose of all judicial matters promptly, efficiently and fairly. (10) A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected. A judge shall require similar abstention on the part of court personnel subject to the judge's direction and control.

 This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This section does not apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity. (11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity. The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project. C. Administrative Responsibilities.

 (1) A judge should diligently and promptly discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

 (2) A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

 (3) A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities. (4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

 (5) A judge shall not fail to comply with Rule 12 of the Rules of Judicial Administration, knowing that the failure to comply is in violation of the rule. D. Disciplinary Responsibilities. (1) A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action. (2) A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action.

A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action. Canon 4: Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations A. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra- judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2) interfere with the proper performance of judicial duties.

 B. Activities to Improve the Law. A judge may: (1) speak, write, lecture, teach and participate in extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code; and, (2) serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice.

 A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system and the administration of justice. C. Civic or Charitable Activities.

 A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the profit of its members, subject to the following limitations: (1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly or frequently engaged in adversary proceedings in any court.

 (2) A judge shall not solicit funds for any educational, religious, charitable, fraternal or civic organization, but may be listed as an officer, director, delegate, or trustee of such an organization, and may be a speaker or a guest of honor at an organization's fund raising events.

 (3) A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions. D. Financial Activities.

(1) A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves. This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law. (2) Subject to the requirements of subsection

(1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business. A judge shall not be an officer, director or manager of a publicly owned business. For purposes of this Canon, a "publicly owned business" is a business having more than ten owners who are not related to the judge by consanguinity or affinity within the third degree of relationship.

 (3) A judge should manage any investments and other economic interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other economic interests that might require frequent disqualification. A judge shall be informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to be informed about the personal economic interests of any family member residing in the judge's household. (4) Neither a judge nor a family member residing in the judge's household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

 (b) a judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a family member residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

 (d) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties. E. Fiduciary Activities.

 (1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties. (2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

 (3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity. F. Service as Arbitrator or Mediator. An active full-time judge shall not act as an arbitrator or mediator for compensation outside the judicial system, but a judge may encourage settlement in the performance of official duties. G. Practice of Law. A judge shall not practice law except as permitted by statute or this Code. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family. H. Extra-Judicial Appointments

 Except as otherwise provided by constitution and statute, a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities. COMMENT TO 2000 CHANGE This change is to clarify that a judge may serve on the Texas Board of Criminal Justice. I. Compensation, Reimbursement and Reporting. (1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety. (a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

 (b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's family. Any payment in excess of such an amount is compensation. (2) Public Reports. A judge shall file financial and other reports as required by law. Canon 5: Refraining from Inappropriate Political Activity (1) A judge or judicial candidate shall not: (i) make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge; (ii) knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or (iii) make a statement that would violate Canon 3B(10). (2) A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party.

A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10). (3) A judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office. (4) A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty.

 Contributions returned in accordance with Sections 253.155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph. COMMENT A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge’s impartiality to be reasonably questioned in the context of a particular case and may result in recusal. Canon 6: Compliance with the Code of Judicial Conduct A. The following persons shall comply with all provisions of this Code: (1) An active, full-time justice or judge of one of the following courts: (a) the Supreme Court, (b) the Court of Criminal Appeals, (c) courts of appeals, (d) district courts, (e) criminal district courts, and (f) statutory county courts.

 (2) A full-time commissioner, master, magistrate, or referee of a court listed in (1) above. B. A County Judge who performs judicial functions shall comply with all provisions of this Code except the judge is not required to comply: (1) when engaged in duties which relate to the judge's role in the administration of the county; (2) with Canons 4D(2), 4D(3), or 4H; (3) with Canon 4G, except practicing law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto. (4) with Canon 5(3). C. Justices of the Peace and

Municipal Court Judges. (1) A justice of the peace or municipal court judge shall comply with all provisions of this Code, except the judge is not required to comply: (a) with Canon 3B(8) pertaining to ex parte communications; in lieu thereof a justice of the peace or municipal court judge shall comply with 6C(2) below; (b) with Canons 4D(2), 4D(3), 4E, or 4H; (c) with Canon 4F, unless the court on which the judge serves may have jurisdiction of the matter or parties involved in the arbitration or mediation; or (d) if an attorney, with Canon 4G, except practicing law in the court on which he or she serves, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto. (e) with Canons 5(3). (2) A justice of the peace or a municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding.

This subsection does not prohibit communications concerning: (a) uncontested administrative matters, (b) uncontested procedural matters, (c) magistrate duties and functions, (d) determining where jurisdiction of an impending claim or dispute may lie, (e) determining whether a claim or dispute might more appropriately be resolved in some other judicial or non-judicial forum, (f) mitigating circumstances following a plea of nolo contendere or guilty for a fine- only offense, or (g) any other matters where ex parte communications are contemplated or authorized by law. D. A Part-time commissioner, master, magistrate, or referee of a court listed in Canon 6A(1) above: (1) shall comply with all provisions of this Code, except he or she is not required to comply with Canons 4D(2), 4E, 4F, 4G or 4H, and (2) should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a commissioner, master, magistrate, or referee, or in any other proceeding related thereto. E.

A Judge Pro Tempore, while acting as such: (1) shall comply with all provisions of this Code applicable to the court on which he or she is serving, except he or she is not required to comply with Canons 4D(2), 4D(3), 4E, 4F, 4G or 4H, and (2) after serving as a judge pro tempore, should not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto. F. Any Senior Judge, or a former appellate or district judge, or a retired or former statutory county court judge who has consented to be subject to assignment as a judicial officer: (1) shall comply with all the provisions of this Code except he or she is not required to comply with Canon 4D(2), 4E, 4F, 4G, or 4H, but (2) should refrain from judicial service during the period of an extra-judicial appointment permitted by Canon 4H. G. Candidates for Judicial Office.

 (1) Any person seeking elective judicial office listed in Canon 6A(1) shall be subject to the same standards of Canon 5 that are required of members of the judiciary. (2) Any judge who violates this Code shall be subject to sanctions by the State Commission on Judicial Conduct. (3) Any lawyer who is a candidate seeking judicial office who violates Canon 5 or other relevant provisions of this Code is subject to disciplinary action by the State Bar of Texas. (4) The conduct of any other candidate for elective judicial office, not subject to paragraphs (2) and (3) of this section, who violates Canon 5 or other relevant provisions of the Code is subject to review by the Secretary of State, the Attorney General, or the local District Attorney for appropriate action. H. Attorneys.

 Any lawyer who contributes to the violation of Canons 3B(7), 3B(10), 4D(4), 5, or 6C(2), or other relevant provisions of this Code, is subject to disciplinary action by the State Bar of Texas. Canon 7: Effective Date of Compliance A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it. Canon 8: Construction and Terminology of the Code A. Construction. The Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges. It consists of specific rules set forth in Sections under broad captions called Canons.

The Sections are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions. The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct. It is not designed or intended as a basis for civil liability or criminal prosecution.

Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system. B. Terminology. (1) "Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action.

 (2) "Should" or "should not" relates to aspirational goals and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined. (3) "May" denotes permissible discretion or, depending on the context, refers to action that is not covered by specific proscriptions. (4) "De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.

 (5) "Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that: (i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest; (ii) service by a judge as an officer, director, ad visor or other active participant, in an educational, religious, charitable, fraternal, or civic organization or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization; (iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; and (iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

 (6) "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian. (7) "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. (8) "Law" denotes court rules as well as statutes, constitutional provisions and decisional law. (9) "Member of the judge's (or the candidate's) family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship.

 (10) "Family member residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides at the judge's household. (11) "Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control. (12) "Third degree of relationship."

 The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. (13) "Retired Judge" means a person who receives from the Texas Judicial Retirement System, Plan One or Plan Two, an annuity based on service that was credited to the system. (Secs. 831.001 and 836.001, V.T.C.A. Government Code [Ch. 179, Sec. 1, 71st Legislature (1989)]

 (14) "Senior Judge" means a retired appellate or district judge who has consented to be subject to assignment pursuant to Section 75.001, Government Code. [Ch. 359, 69th Legislature, Reg. Session (1985)] (15) "Statutory County Court Judge" means the judge of a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, statutory probate courts, county criminal courts, county criminal courts of appeals, and county civil courts at law. (Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 16.01(18), 71st Legislature (1989)]) (16) "County Judge" means the judge of the county court created in each county by Article V, Section 15, of the Texas Constitution. (Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 16.01(18), 71st Legislature (1989)])

 (17) "Part-time" means service on a continuing or periodic basis, but with permission by law to devote time to some other profession or occupation and for which the compensation for that reason is less than that for full-time service. "Judge Pro Tempore" means a person who is appointed to the court. familyactivist@gmail.com / techparalegal.us

SAVAGE, VIOLENT OUT OF CONTROL FAMILY COURT JUDGES

Judges cannot be allowed to ignore rules and regulations and simply assume laws are not intended to be used against them. Family court trial judge court 246 Houston Texas has built a reputation that seeming assumes laws and legal requirements are not pertinent to him. I think the staff of 246 Family court Houston has seen the trial judge in such an acute stage of mental disorder and that he is so well known in political circles that he silently dares them to communicate his wrong doing using the court. Rule 2.15. RESPONDING TO JUDICIAL AND LAWYER MISCONDUCT

 (a) A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge shall inform the appropriate authority.*

 (b) A judge having knowledge* that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate authority.*

 (c) A judge who receives credible information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

 (d) A judge who receives credible information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.

Code Comparison The Hawai‘i Revised Code of Judicial Conduct modifies ABA Model Code Rule 2.15(C) and (D) by adding “credible.”

 COMMENT: [1]Taking action to address known misconduct is a judge’s obligation. Rules 2.15(a) and
(b) impose an obligation on the judge to report to the appropriate authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer.

 Ignoring or denying known misconduct among one’s judicial colleagues or members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to misconduct that an independent judiciary must vigorously endeavor to prevent.
[2]A judge who does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives credible information indicating a substantial likelihood of such misconduct, is required to take appropriate action under Rules 2.15(c) and (d).

 Appropriate action may include, but is not limited to, communicating directly with the judge who may have violated this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body.

Similarly, actions to be taken in response to credible information indicating that a lawyer has committed a violation of the Rules of Professional Conduct may include, but are not limited to, communicating directly with the lawyer who may have committed the violation or reporting the suspected violation to the appropriate authority or other agency or body. familyactivist@gmail.com

Tuesday, March 28, 2017

ANGRY AND OUT OF CONTROL FAMILY COURT JUDGES

In a much too common bout of extreme anger Trial court Judge 246 Harris County exploded while attacking a litigant before his court. The litigant had several motions PRO SE with the court and was schedule for hearings before the trial judge. The court was involved with a trial until lunch break about 12:30 pm. Both Petitioner and Respondent were present for the morning session of the trial. Attorney for the Respondent appeared during the lunch break. Concluding the lunch break,

respondent attorney waived the petitioner to the bench where the judge was waiting. In a sudden burst of aggressive anger, the trial court judge screamed he was not of help to the petitioner and that the petitioner should take his case to the appellate court, since I had taken my case from his court.

The trial judge continued his rampage from the bench screaming to the petitioner that he was a liar and that he did not pay monies for material for the appellate court and that the petitioner was not meeting the financial requirement of the appeals court.

 His rage continued screaming loudly that he told the petitioner at the last meeting that he had nothing more to do with the case. then in a bizarre turn of events, the judge turned to the respondent attorney an inquired of him whether he said to the petitioner on 18 March, that he had nothing to with the case, to which the attorney answered yes.

The irony is this attorney was not present in the court that day and that he sent a certified excuse to the petitioner indicating he was in another court, unavailable for appearance in family court that day. In one hearing, the opinion says, when speaking to a woman who was seeking an order of protection against her then-husband in a domestic violence case, Watkins blamed the woman for “shooting off your fat mouth about what happened,” told her to “Shut up!” and then continued:

 On 18th March the trial judge was singing another tune stating the respondent was not served and that the petitioner has to give 7 days service to the respondent prior to trial. In that incident when the judge was in a state of rage much calmer than he was today, It was the Attorney General representative that saved the day explaining the method of service for herself and the respondent. The respondent was served certified mail return signature, and a notice of service was filed with the court.

A trial judge places the court in grave danger when he becomes deranged and obviously out of control. There was a trial waiting with 4 attorneys present in the court. There was obvious concern on expressed on their faced, and one could conclude the impression of the litigants in the court.

The trial judge of court 246 is obviously out of control, and his shouts of anger is very dangerous and unbecoming of a judicial institution. Lack of professionalism, integrity and control are qualities displayed by the judge.

Security officials approached the bench obviously concerned with the activities occurring in the court. Trial judge 246 should be given anger management training and made to show control and discipline deserving a professional. Below is a case of anger from a family court and steps taken to aid the out of control judge.

 This 246 family court judge turned the court into a street brawl and not a court of law. Trial Judge 246 H “Shut up! You stupid woman. Can’t even act properly. One more word out of you that you aren’t asked a question you’re out of here, and you will be found in direct contempt of court and I will fine you appropriately. So, shut your mouth.

You know I hate it when people are just acting out of sheer spite and stupidity.” The court also criticized Watkins for failing to make timely rulings, failing to comply with court orders to do so and failing to see that his staff timely completed required tasks, such as entering protective orders into the state’s domestic violence registry.

The Charleston Gazette says Watkins did not respond to a Tuesday phone call seeking comment and notes that the court entered an order that retains Deloris Nibert, a former Mason County family court judge who was appointed by the court in December to handle Watkins’ caseload after he took an emergency medical leave.
Watkins did not contest the conduct cited by a hearing board of the Judicial Investigation Commission when it recommended that he be suspended without pay for the remainder of his term in office, which concludes on Dec. 31, 2016. However, he argued that the sanction amounted to removal from office, which the state constitution allows only the West Virginia legislature to do, by impeachment.

 Hence, the judge said, the supreme court didn’t have the power to suspend him for the rest of his term. The court disagreed, distinguishing impeachment, which would also have stripped Watkins of his pension and prohibited him from serving in office again, from a suspension and saying that public policy requires that the court use its inherent powers to protect lawyers and litigants from a judge who is unable or unwilling to do his job properly. It also censured Watkins for 24 violations of nine canons of the state’s Code of Judicial Conduct, which are printed in full in the opinion.

“Socrates said, ‘Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially,’” the court wrote. “We recognize that regulating the demeanor of a judge is a difficult task, because judges are human and may occasionally display anger or annoyance, and lawyers and litigants sometimes incite judges. Judges must also be allowed some flexibility in criticizing the performance of lawyers who appear before them.

But a judge owes a duty to treat lawyers and litigants courteously, to hear them patiently, to study their arguments and evidence conscientiously, and to decide their cases promptly.” In a concurring opinion (PDF), Chief Justice Brent Benjamin agreed that Watkins should be suspended without pay for the rest of his term but disagreed about the manner in which the court imposed this sanction.
Instead of using inherent judicial powers, which opens the door to potential misuse in the future for political reasons, the court should have simply imposed consecutively the one-year suspensions it is clearly authorized to impose under the state constitution, he wrote.

 “While I have the utmost respect for my colleagues and the professionalism of our current court and share their belief that the admittedly harsh sanction in this case is fully justified, I fear how a highly partisan or polarized future court might misuse this expansive new precedent.”

familyactivist@gmail.com / techparalegal.us

Wednesday, March 22, 2017

FAMILY COURTS USE ATTORNEY FEES AS THREAT

ARE FAMILY COURT JUDGES SCARING LITIGANTS WITH PAYING OPPONENTS ATTORNEY FEES? ATTORNEYS’ FEES IN FAMILY LAW PROCEEDINGS I. INTRODUCTION A practitioner seeking to successfully obtain and collect attorneys’ fees in a family law proceeding must be aware of and comply with not only the statutory authority and bases which justify a fee award, but must also be careful to meet pleading and proof requirements established by Texas courts by presenting appropriate evidence in a manner which clearly demonstrates to the court the attorney’s right to recover the fees requested. This paper identifies the bases for recovery in several types of family law proceedings and alerts the practitioner to the requirements which must be met in order to obtain an award pursuant to particular statutory authority.

Practice pointers are provided to assist the practitioner in maximizing a fees award and collection of the award from the opposing party. II. STATUTORY BASIS FOR RECOVERY IN FAMILY LAW PROCEEDINGS A statutory basis must exist in order for a court to make an award of attorneys’ fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006). Many such statutory bases are provided in the Texas Family Code, Texas Rules of Civil Procedure and the Civil Practice and Remedies Code.

This paper identifies and discusses the statutory bases for an award of attorneys’ fees in some of the areas often encountered by family law practitioners, but is by no means exhaustive. A. Dissolution In a suit for the dissolution of a marriage a court may award attorneys’ fees as part of temporary orders and as part of the final division of the community estate. 1. Temporary Orders Texas Family Code § 6.502(4) provides that after notice and hearing, upon the motion of one of the parties or on the court’s own motion, a court may render orders ―for the preservation of property and protection of the parties as deemed necessary and equitable‖ including: ―ordering payment of reasonable attorney’s fees and expenses

.‖ The standard for an award of interim fees mirrors that of an award of temporary spousal support, i.e., the need of one party to access community funds to pay attorneys’ fees and other litigation expenses considered against the opposing spouse’s ability to pay those expenses out of community assets. Herschberg v. Herschberg, 994 S.W.2d 273, 278-79 (Tex. App.—Corpus Christi, 1999, pet. denied). A court will consider whether one spouse has greater access to community property in making an interim attorneys’ fee award, but will not make a party destitute in order to make such funds available to the requesting party.

 Id. In seeking an award of interim attorneys’ fees on behalf of a client, it is important to identify to the court the community asset or assets which can be used to satisfy the request for fees. In a dissolution proceeding without children, a court may only order the payment of attorneys’ fees out of community property and cannot order a party to pay a spouse's interim attorneys’ fees out of separate property. Grossnickle v. Grossnickle, 935 S.W.2d 830, 846-47 (Tex. App.—Texarkana, 1996, writ denied).

 If possible, identify a specific community account and provide proof to the court of the balance of funds available in that account for the payment of fees. If there is no account from which sufficient funds may be withdrawn to satisfy the request for interim fees, be prepared to suggest to the court that a particular item of community property be sold or pledged to generate the necessary funds and provide the court with a detailed plan about how the sale or pledge of that property should proceed. 2.
Division of Community Estate Texas Family Code § 7.001 grants a court the authority to make a final division of the community estate ―in a manner the court deems just and right, having due regard for the rights of each party.‖ The court has the discretion to award attorneys’ fees to a party as part of this division, even where the award of fees to one party results in an unequal division of the community estate. Carle v. Carle, 149 Tex. 469, 474 (Tex. 1951) (the court is not required to divide community estate equally, and there is no error in ordering one party to pay all fees of the other party which results in an unequal division). An award of fees is but one factor the court may consider in the overall division of the community estate. Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex.App.—Dallas 1987).

 Further, a court may order one party to pay the opposing party’s attorneys’ fees notwithstanding that the opposing party is awarded sufficient property from which he or she would be able to pay his or her own fees. Brown v. Brown, 520 S.W.2d 571, 578-89 (Tex.Civ.App.—Houston [14th Dist.] 1975) (ordering husband to pay $1.25 million in wife’s attorneys’ fees where wife was awarded $25 million of community property); Braswell v. Braswell, 476 S.W.2d 444, 445- 48 (Tex.Civ.App.—Waco 1972) (husband ordered to pay $250,000 in wife’s attorneys’ fees where wife was awarded more than $4 million in community property including $600,000.00 in cash).

 The authority of the court to order payment of attorneys’ fees in a dissolution proceeding is based solely on the court’s authority to divide the community estate. Accordingly, in a suit for the dissolution of a marriage without children, a court does not have authority to order a spouse to pay attorneys’ fees for the opposing party out of his or her separate estate, or to award fees in an amount greater than the total value of the community estate. See Chiles v. Chiles, 779 S.W.2d 127, 129 (Tex.App.— Houston [14th Dist.] 1989, writ denied, overruled on other grounds by Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993)); Henry v. Henry, 48 S.W.3d 468, 480 (Tex.App.—Houston [14th Dist.] 2001); Toles v. Toles, 45 S.W.3d 252, 267 (Tex.App.—Dallas 2001). In dividing the community estate and making an award for attorneys’ fees, a court may consider earlier payment of attorneys’ fees out of the community estate, and has discretion to award fees to either party, whether or not that party was successful before the trial court or on appeal. Grossnickle, 935 S.W.2d at 846. 3.

Post-Decree Division of Property Pursuant to Texas Family Code § 9.205 a court may award reasonable attorneys’ fees in a suit to divide property which was not divided as part of the original divorce proceeding. B. SAPCR As with a suit for dissolution of a marriage without children, a court also has the authority to order payment of attorneys’ fees for the opposing party either at the time of temporary orders or as part of final orders in a suit affecting the parent-child relationship (―SAPCR‖) which has either been brought as part of a proceeding for the dissolution of a marriage or as an independent proceeding. 1.

Temporary Orders Texas Family Code § 105.001(a)(5) provides that ―for the safety and welfare of the child‖ a court may make temporary orders ―for payment of reasonable attorney’s fees and expenses.‖ Courts have interpreted the ―safety and welfare‖ requirement of § 105.001(a)(5) to be mandatory, without which an award of fees may not be made. Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex.App.— Houston [1st Dist.] 1993, no writ) (trial court may not make orders for the payment of reasonable attorneys’ fees in a suit affecting the parent-child relationship ―for a purpose other than the safety and welfare of the child‖).

 To meet this standard a party must present evidence concerning the safety and welfare of a child, not merely present evidence that an award of fees is necessary to even the financial playing field between the parties. In re T.M.F., No. 09-10-00019-CV, 2010 WL 974577, at *1-2 (Tex.App.—Beaumont March 18, 2010) (error to award fees where only evidence to support request for fees was disparity in financial abilities of the parties to pay attorneys’ fees and no evidence was presented concerning the safety and welfare of the children); In re Sartain, No. 01-07- 00920-CV, 2008 WL 920664, at *2 (Tex.App.— Houston [1st Dist.] April 3, 1993, orig. proceeding). It is not enough that issues to be presented at the final trial ―may involve issues relating to the safety and welfare of the children.‖ In re T.M.F., 2010 WL 974577, at *2.

 A party seeking an award of interim attorneys’ fees is required to present evidence that, at the time of the request, funds are necessary to protect the safety and welfare of the children. In re Christopher Rogers, No. 03-12-00154-CV, 2012 WL 1581374, at *1-4 (Tex.App.—Austin May 4, 2012). In In re Christopher Rogers, the court held that where temporary orders were already in place protecting the safety and welfare of the children and the movant’s attorney testified that funds were necessary to prepare for the jury trial rather than to address a current safety and welfare issue concerning the children, the requirements of Texas Family Code § 105.001(a)(5) were not met. Id.

 Intervenors may recover fees in the same manner as if they were entitled to fees as an original party. See, e.g., Yerby v. Heineken & Vogelslang, 209 S.W. 835 (Tex.Civ.App.—Austin 1919), writ refused, (Oct. 15, 1919). 2. Final Orders Pursuant to Texas Family Code § 106.002 in a SAPCR, a court may render judgment for fees and post judgment interest to be paid directly to the attorney and enforced in the attorney’s name. An award under this provision of the code is also within the court’s discretion.

Unlike in a dissolution proceeding without children, a court may order the payment of attorneys’ fees in excess of the value of the community estate in a dissolution proceeding with children or in an independent suit affecting the parent-child relationship. Moroch v. Collins, 174 S.W.3d 849, 870- 71 (Tex.App.—Dallas 2005, pet. denied). In other words, the court in a SAPCR may order fees paid from a party’s separate estate, if necessary to protect the safety and welfare of the child. Further, in a divorce proceeding with children, the court may award fees either as part of the division of the community estate or as costs in the SAPCR and may also allocate fees between each. Id. III. SEMI-MANDATORY FEE AWARDS AND FEE AWARDS FOR DISCOVERY ABUSE AND AS SANCTIONS .

While many of the statutory provisions on which the request for attorneys’ fees may be made in family law proceedings are discretionary, some statutes provide that a court shall award fees, unless it makes further findings that fees are not appropriate in the particular circumstances. A. Enforcement The Texas Family Code provides that a court ―shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to the arrearages‖ in a suit to enforce a child support order. TEX. FAM. CODE § 157.167(a) (emphasis added). Further, § 157.167(b) provides that ―[i]f the court finds that the respondent has failed to comply with an order providing for the possession of or access to a child, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to any other remedy.‖ TEX. FAM. CODE § 157.167(b) (emphasis added).

 This section also provides that if the court finds the enforcement of the order was ―necessary to ensure the child’s physical or emotional health or welfare, the fees and costs . . . may be enforced by any means available for enforcement of child support, including contempt, but not including income withholding.‖ Id. However, the statute giveth and the statute taketh away. Pursuant to § 157.167(c) ―for good cause shown‖ the court may waive the mandatory payment of attorneys’ fees and costs if the court ―states the reasons supporting the finding.‖

Where a party is in arrears more than $20,000.00 in child support and the court finds the party in contempt, the court may not waive the mandatory payment of fees and costs, unless the court also specifically finds that the party is: 1) involuntarily unemployed or disabled; and 2) lacks financial resources to pay the fees and costs.

TEX. FAM. CODE § 157.167(d). A court must make the necessary findings however, or the award of attorneys’ fees is mandatory. See Goudeau v. Marquez, 830 S.W.2d 681, 682 (Tex.App.—Houston [1st Dist.] 1992) (finding that ―[t]he provision requires the trial court to impose attorney's fees and court costs, provided they are reasonable, absent a specific finding that the respondent need not pay the attorney's fees or court costs.

 The provision is mandatory.‖) (citations omitted). The practitioner should be mindful that even where a statute mandates an award of fees, the party requesting the award must still satisfy the burden of proof and evidence should be presented to the court demonstrating the reasonableness of the amount of fees requested. In re A.L.S., 338 S.W.3d 59, 70 (Tex.App.—Houston [14th Dist.] 2011, rehearing overruled) (finding that there is no abuse of discretion in awarding no fees to a prevailing party on enforcement of payment of child support where party failed to put on any evidence supporting reasonableness of fees requested).

The practitioner should also specify those fees incurred which support the mandatory award to be enforced. See Kogel v. Robertson, No. 03-04-00246-CV, 2005 WL 3234627, at *10 (Tex.App.-Austin Dec. 2, 2005). In Kogel v. Robertson, the portions of the trial court’s fee award were not attributed specifically to the enforcement of child support arrearages versus the award of fees for the modification proceeding. Id.

 Because the award on the basis of child support arrears allowed for enforcement by contempt, the Court of Appeals could not uphold the award with no distinction between those fees awarded for the suit to enforce child support arrearages and those awarded on the basis of modification, and therefore determined that the entire award could only be enforced as a debt and not by contempt. Id. B. Attorneys’ Fees for Discovery Abuse Texas Rule of Civil Procedure 215 contains several provisions for the award of attorneys’ fees for discovery abuse and failure to comply with discovery obligations. Sanction able discovery abuse may include ―unreasonably frivolous, oppressive, or harassing‖ discovery requests or an answer or response that is ―unreasonably frivolous‖ or ―made for purposes of delay.‖

TEX. R. CIV. P. 215.3. It may also include the failure of a witness or a party giving notice of a deposition to attend the deposition. TEX. R. CIV. P. 215.5. Additionally, Texas Rule of Civil Procedure 215.1 sets forth a list of other discovery abuses that may trigger an award of fees. The Texas Rules of Civil Procedure provides that in lieu of or in addition to other sanctions, a court shall award reasonable expenses, including attorneys’ fees ―unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.‖ TEX. R. CIV. P. 215.2 (emphasis added). The purpose of awarding fees is to compensate the party for additional litigation expenses incurred as a result of the abusive discovery tactics. Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 865 (Tex.App.—Dallas 2006). C. Attorneys’ Fees for Frivolous Filings

Texas Rule of Civil Procedure 13 and Texas Civil Practice and Remedies Code § 10.001 et seq. allow for the imposition of sanctions against a party and/or his or her attorney, if a pleading is brought in bad faith, is groundless or brought for the purposes of harassment. Among the sanctions a court may impose are reasonable expenses and attorneys’ fees. See TEX. CIV. PRAC. & REM. CODE § 10.002(c), § 10.004(c); TEX. R. CIV. P. 215.2. The amount of an attorneys’ fee award imposed as sanctions for a frivolous filing is within the court’s discretion and there should be ―a reasonable relationship between the harm done and the sanctions assessed.‖ Glass v. Glass, 826 S.W.2d 683, 688-90 (Tex.App.—Texarkana 1992, writ denied 1992) (finding abuse of discretion where the fees award was disproportionately large relative to the amount in controversy). IV. PLEADING, DISCOVERY

ISSUES AND PROVING-UP REQUEST A party seeking an award of attorneys’ fees should ensure that a statutory basis for an award exists and that an affirmative pleading is on file requesting an award of attorneys’ fees. Swate v. Medina Comty. Hosp., 966 S.W.2d 693, 701 (Tex.App.—San Antonio 1998) (finding that ―[a]bsent a mandatory statute, a trial court's jurisdiction to render a judgment for attorney's fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney's fees is a nullity.‖).

 Practitioners must also be prepared to prove to the court that the fees sought were reasonable and necessary for the prosecution of the suit. Reasonableness is a question of fact to be determined by a judge or jury. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). A jury may determine the reasonableness of attorneys’ fees but its opinion on which party should pay fees is advisory, although the court may consider and adopt the jury’s finding. A. Reasonable and Necessary The party seeking fees must prove the base amount of the fees sought by providing the hours worked, the amount charged by hour, a description of the work performed, a statement that the work was necessary to the prosecution or defense of the case, and a statement that the fees were reasonable.

 Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997). The Texas Supreme Court has identified factors which should be considered in evaluating whether fees sought are reasonable and necessary. Id. This non-exclusive list of factors, based on Rule 1.04 of the Texas Rules of Disciplinary Procedure, includes the following: 1) The time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly;

 2) The likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer; 3) The fee customarily charged in the locality for similar legal services; 4) The amount involved and the results obtained; 5) The time limitations imposed by the client or by the circumstances; 6) The nature and length of the professional relationship with the client; 7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and 8) Whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. One consideration in assessing reasonableness is the conduct of the parties during the course of the litigation.

 In the Interest of S.E.C., 2009 WL 3353624, No. 05-08-00781-CV, at *2 (Tex.App.—Dallas Oct. 20, 2009) (attorney testified that although the fees incurred were high for the type of proceeding, the fees incurred were necessary and reasonable due to conduct of opposing party, including a failure to pay debts as agreed, and litigation conduct such as the filing multiple motions and the scope and nature of discovery); see Hammonds v. Hammonds, 583 S.W.2d 807, 809-10 (Tex.Civ.App.—Dallas 1979) (―the court could also have properly concluded that unjustified delay and lack of co-operation by appellant added unnecessarily to the services required of appellee's counsel‖).

 In addition, evidence of settlement negotiations may also be considered when determining the amount of attorneys’ fees a court should award. See F. Lee Lawrence v. C.W. Boles, 631 S.W.2d 764, 768-69 (Tex.App.—Tyler 1981); see e.g., Travelers Ins. Co. v. Barrett, 366 S.W.2d 692, 694-95. The dollar amount of fees awarded depends on a number of factors including the total value of the property at issue. See Brown, 520 S.W.2d at 578-89 ($1.25 million awarded in attorneys’ fees where community estate valued at approximately $50 million); Braswell, 476 S.W.2d at 445-48 ($250,000.00 awarded in attorneys’ fees where community estate valued at approximately $10 million); Phillips v. Phillips, 296 S.W.3d 656, 672-73 (Tex.App.—El Paso 2009) ($175,000.00 awarded in attorneys’ fees in dissolution suit). When opposing a request for attorneys’ fees, it may be appropriate to challenge the hourly rate of the attorney, the tasks performed and/or the amount of time spent on the case or certain tasks therein, as unreasonable or unnecessary.

 In Beard v. Beard, both the attorney of the party requesting fees and the opposing attorney proffered testimony regarding the amount of fees which were reasonable and necessary under the circumstances. 49 S.W.3d 40, 65 (Tex.App.—Waco 2001). The movant sought an award of $60,000.00 in attorneys’ fees and costs. The trial court awarded $1,500.00. The award was upheld on appeal due to the testimony of the opposing witness who testified that $1,500.00 was a reasonable fee for the nature of the case, a divorce with only two community assets and no children. Id. Evidence was also presented that two pre-trial hearings sought by the movant were unnecessary and that movant had also engaged in excessive discovery. Id. Note however, that failure to present evidence or other objection on the record opposing the reasonableness and/or necessity of a fee request or award, may waive the objection. Treadway v. Treadway 613 S.W.2d 59, 60-61 (Tex.Civ.App.—Texarkana 1981). B. Discovery Issues – Rule 194 Disclosures Be aware of your responsibilities to provide information to the opposing party as part of the discovery process in connection with a request for attorneys’ fees.

 Likewise, make sure that you propound the necessary requests to the opposing party in order that you will be aware of their claims for attorneys’ fees and will be in a position to object to their proceeding with such a request if they have not complied with the appropriate discovery requirements. Pursuant to Texas Rule of Civil Procedure 194.2(c), a party is required to state the legal theories, and in general factual bases of his or her claims and defenses. In response to this request for disclosure, a party should identify his or her claim for attorneys’ fees and state the legal theories and factual bases for the claim.

 Pursuant to Texas Rule of Civil Procedure 194.2(d), a party is required to identify persons having knowledge of relevant facts. In response to this request for disclosure, a party should identify all attorneys and legal assistants in the firm who have performed work on the case. Most importantly, a party must identify an attorney as a testifying expert pursuant to 194.2(f) for the purpose of proving the elements necessary to secure the award of attorneys’ fees. In addition, a party is required pursuant to Rule 194.2(f) to provide the following regarding a testifying expert: 1) name, address and telephone number; 2) subject matter of testimony; 3) mental impressions and opinions, including facts known by the expert that relate to or form the basis of those mental impressions and opinions; 4) all documents, reports or compilations provided to, reviewed by or prepared by or for the expert in anticipation of the expert’s testimony; and 5) the expert’s current resume and bibliography. Where an opposing party fails to comply with these disclosures required by Texas Rule of Civil Procedure 194, it is appropriate to move to strike the request for fees and object to the presentation of any evidence to the court at a hearing or trial in support of his or her request for an award of attorneys’ fees. E.F.

Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex. 1987); Campos v. State Farm Gen. Ins. Co., 943 S.W.2d 52, 54-55 (Tex.App.—San Antonio, 1997, writ denied). Nothing in the rules or Texas law permits a party not designated as a testifying expert to testify as an expert at a hearing or trial. Collins v. Collins, 904 S.W.2d 792, 801 (Tex.App.—Houston [1st Dist.], writ denied, 923 S.W.2d 569 (Tex. 1996)). The Court must exclude a witness who was not listed in response to a request for disclosure unless there is a showing of good cause for the untimely response and a showing that the failure timely to respond will not unfairly surprise or prejudice the parties. TEX. R. CIV. P. 193.6(a); Fort Brown Villas Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009). C. Trial Exhibits to Prove-up Fee Request Attorneys’ fees must be proven by offering expert testimony that the fees were reasonable and necessary. Twin City Fire Ins. Co. v. Vegal-Garcia, 223 S.W.3d 762, 770 (Tex.App.—Dallas 2007, pet. denied); Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex.App.—Austin 2000, pet. denied).

Testimony of the attorney alone is sufficient to support an award of fees. See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989). An expert witness or representing attorney should present testimony using the factors set out in Andersen as a guide. Although it is not necessary to elicit testimony on each of the Andersen factors, the prudent practitioner would do so. The following exhibits should be presented to the court in connection with the attorney’s testimony. 1) Fee Agreement.

his establishes for the court the hourly fees charged by an attorney or attorneys and legal assistants working on the case. Redact from the fee agreement any privileged information including any legal advice which may be contained in the agreement. Work performed by a paralegal or legal assistant under the supervision of any attorney, which constitutes work traditionally performed by an attorney, may be included in an attorneys’ fees award. All Seasons v. Window & Door Mfg. v. Red Dot Corp., 181 S.W.3d 490, 504 (Tex.App.—Texarkana 2005, no pet.); Clary Corp. v. Smith, 949 S.W.2d 452, 469 (Tex.App.—Fort Worth 1997, pet. denied); Gill v. Sav. Ass’n, 759 S.W.2d 697, 702 (Tex.App.— Dallas 1988, writ denied).

In order to recover fees for a paralegal or legal assistant’s time, the practitioner must show the following: ―(1) that the legal assistant is qualified through education, training or work experience to perform substantive legal work; (2) that substantive legal work was performed under the direction and supervision of an attorney; (3) the nature of the legal work which was performed; (4) the hourly rate being charged for the legal assistant; and (5) the number of hours expended by the legal assistant.‖ Id. 2) Invoices and billing statements. Invoices and billing statements for fees, costs and expenses incurred should be sufficiently detailed in order that the client – and the fact finder – can understand and evaluate the nature of the work performed on behalf of the client. Invoices and billing statements should clearly state the hourly rate for each individual working on the case and state the amount of time for which work was performed each day.

As with fee agreements, invoices and billing statements should be redacted to protect attorney work-product, attorney-client privileged information and other confidential and privileged information. 3) Line Item Exhibits. The basis upon which an award of attorneys’ fees is sought will dictate the nature of evidence to be presented to the court. Presenting information to the court organized to support the request may increase the court’s willingness to approve the request. Several examples are provided below: a) Fees Already Incurred.

When seeking an award for fees and expenses already incurred, a helpful exhibit to provide to the court in addition to a detailed invoice or billing statement is an exhibit which provides line item totals and breaks down fees and expenses incurred as a result of work performed by each attorney and legal assistant as well as a breakdown of expenses and costs incurred for expert witnesses. b) Anticipated Fees for Interim Award.

 If interim fees are sought, the attorney should prepare an exhibit setting forth the anticipated fees and litigation expenses the attorney reasonably believes will be necessary through an identified time in the case. The exhibit should identify the attorneys and legal assistants who will work on the case, state the hourly rate for each and estimate the number of hours which will be spent by each person working on the case for each category of legal work to be performed. For reference, an exhibit is attached to this article as an example of what is necessary to show anticipated interim attorneys’ fees. c) Fees Associated with a Particularized Request.

When an attorney seeks an award for a specific portion of a case or for specific work performed it may be necessary to segregate for the court how much attorney time was spent on particular issues and the expenses incurred therewith. For example, in seeking fees on a motion to compel the attorney should present an exhibit which segregates the fees incurred seeking the production of requested information from the opposing party, drafting the motion to compel and preparing for and attending the hearing. An attorney should also segregate fees for which they are entitled to recover from those which they are not, and further. See Tony Gullo Motors I, L.P., 212 S.W.3d at 311; Kogel v. Robertson, No. 03-04-00246-CV, 2005 WL 3234627, at *10 (Tex.App.— Austin Dec. 2, 2005). The practitioner is cautioned that even where testimony and other evidence supporting the reasonableness of a fee request is presented, a court may still find the amount requested to be unreasonable.

 See Smalley v. Smalley, 2012 WL 1448433, No. 09–11–00261–CV at *3-6 (Tex.App.— Beaumont April 26, 2012) (reversing trial court award of $110,000.00 in appellate attorneys’ fees where court considered counsel’s testimony, the amount in controversy, the nature and complexity of the case, and the court’s own ―common knowledge and experience…‖)). Evidence should be presented not only on the Andersen factors but specific testimony that the amount requested is reasonable should be elicited. Tucker v. Thomas, 2011 WL 6644710, No. 14–09–01081–CV at *14 (Tex.App.—Houston [14th Dist.] Dec. 20, 2011) (finding and abuse of discretion of an award of attorneys’ fees based on ―invoices showing the attorney's fees she incurred, the work performed, the hours billed, and the billing rates, [where] the record contains no testimony as to whether the fees are reasonable‖). D. Opposing a Fee Request General cross examination of an attorney testifying in support of a fee request is not enough.
A practitioner should consider objecting to or questioning the testifying attorneys’ fees witness on his or her qualifications as an expert and/or experience to give the testimony, challenge supporting exhibits on evidentiary grounds and make specific inquiries concerning the particular work performed for which an award of fees is sought. In the Interest of S.E.C., 2009 WL 3353624 at *2 (affirming fee award where opposing counsel did not oppose witness qualifications, object to affidavit admitted in support of fees or otherwise attempt to controvert majority of fees sought). E. Enforcement of a Fee Award 1.

As Child Support/Necessaries Attorneys’ fees can be ordered to be paid as child support. Tucker v. Thomas, 2011 WL 6644710, No. 14–09–01081–CV at *1 (Tex.App.—Houston [14th Dist.] Dec. 20, 2011) (detailed survey of Texas courts’ treatment of fees as necessaries for children and payment of same as child support, holding that ―under the Texas Family Code, the trial court in a non- enforcement modification suit has jurisdiction and authority to order a parent to pay reasonable attorney's fees, as additional child support, for legal services benefiting the children‖); cf. Finley v. May, 154 S.W.3d 196, 198-99 (Tex.App.—Austin 2004, no pet.) The trial court in Tucker ordered the parents to each pay one-half of the amicus attorneys’ fees as child support and further ordered the father to pay attorneys’ fees incurred by the mother as child support.

 This case provides a comprehensive review and analysis of case law and provisions of the Texas Family Code related to ordering attorneys’ fees to be paid to third parties such as guardians ad litem and amicus attorneys on the basis that such fees are necessaries for the children and ordering such payments be made as additional child support. It is advisable that practitioners plead for attorneys fees to awarded be paid as child support, and this specific request should also be included in pretrial forms submitted to the court and testimony elicited supporting the request. 2. Contempt In certain circumstances an award of attorneys’ fees may be enforceable by contempt. As discussed above, an award in a suit to enforce a child support order may be enforced by contempt.

 The obligation to pay child support is not considered a debt, but a legal duty. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). An award of attorneys’ fees in a SAPCR may be enforced by the means available for the judgment for a debt. Taylor v. Speck, 308 S.W.3d 81, 84 (Tex.App.—San Antonio 2010, no pet.). However, the Texas Supreme Court has determined that the failure to pay one’s child support obligations is also punishable by contempt.

 In re Henry, 154 S.W.3d 594, 596 (Tex. 2005). In Henry, respondent failed to pay child support and property taxes pursuant to the final decree and imposed criminal contempt sentence, which was suspended while respondent made weekly child support payments. Id. at 595-96. However, respondent failed to comply with the suspension order’s conditions and was ordered into confinement. Id.

The Court determined that an award of attorneys’ fees related to child support contempt actions are viewed as costs, not as debts and are therefore enforceable by contempt. Id. (citing Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 188-89 (1953)). V. WITHDRAWAL FOR FAILURE TO PAY FEES, RECOVERING FEES AND THE STATE BAR OF TEXAS CLIENT- ATTORNEY ASSISTANCE PROGRAM (CAAP) When a lawyer takes on a matter, that lawyer should endeavor to handle the matter to completion. See Tex. Disciplinary Rules Prof’l Conduct R. 1.15 cmt. 1. However, a lawyer may withdraw from representation on the basis that the client has failed to pay attorneys’ fees. Tex. Disciplinary Rules Prof’l Conduct R. 1.15 (b). Texas Disciplinary Rule of Professional Conduct allows an attorney to withdraw from representation if: The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

 The representation will result in an unreasonable financial burden on the lawyer or had been rendered unreasonably difficult by the client; or Other good cause for withdrawal exists. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(b)(5)(6), (7); see also In re Daniels, 138 S.W.3d 31, 33 (Tex.App.—San Antonio 2004)(finding that attorney established good cause in seeking to withdraw from representation of client where client failed to fulfill obligations under the engagement agreement, including failure to pay attorneys’ fees and the continued representation would result in an unreasonable financial burden on the attorney).

 If a client fails to pay the attorneys’ fees owed, and the lawyer must withdraw from representation, it may be necessary for the lawyer subsequently to intervene in the underlying divorce proceeding in order to collect the fees owed. In Wythe II Corporation v. Stone, lawyer withdrew from representation of client and intervened in the underlying lawsuit between the client and the insurance company. 342 S.W.3d 96, 106-07 (Tex.App.—Beaumont 2011, reh’g denied).

 The client counterclaimed against the lawyer for breach of fiduciary duty and fraud. Id. at 102. However, the Court of Appeals affirmed the trial court’s granting of summary judgment in favor of the lawyer on the fee contract. Id. at 106-07. In Martel v. Martel, husband’s first attorney withdrew from representation and subsequently intervened in the underlying divorce proceeding in order to collect attorneys’ fees owed. 2001 WL 996052 (Tex. App.—Dallas, Aug. 31, 2001) *7. The trial court awarded attorney outstanding attorneys’ fees and collection costs and the Dallas Court of Appeals affirmed the judgment. Id. The State Bar of Texas has established a procedure for preemptively resolving fee disagreements between attorneys and their clients. 

The Texas Client-Attorney Assistance Program (CAAP) is a program which mitigates the need for clients to file formal grievances, and then provides assistance if in fact a grievance needs to be filed. The CAAP encourages the client to talk to his or her attorney about any outstanding disagreements on fees and if the disagreement cannot be resolved, to contact the CAAP in order to assist the client in determining if the fee dispute may be resolved without filing a grievance.

 If the CAAP determined that the attorney has not broken any rules and there is merely a disagreement between the attorney and client, the client will be referred to a local bar association. If it is determined that rules have been broken, then the client will be assisted through the grievance process. VI. CONCLUSION Numerous statutory provisions authorize a court to award attorneys’ fee to a party. To be successful in obtaining such an award, a practitioner should be mindful of the limitations in the law relevant to the particular basis upon which an award is sought.

or the request will increase the likelihood that a court will grant a request for attorneys’ fees.

Monday, March 20, 2017

FAMILY COURT 246 PLAN THE JUDICIAL KIDNAPPING OF A 10 YEAR OLD CHILD.

Remember a past blog regarding a 246 court judge granting an injunction then 3 days later staging a nab with a mother and attorney to kid nap like a 10 year old? Well here is the rest of the story. An associate judge for court 246 could have wanted to favor a mother in a case, so she after refusing a respondent motion to modify a temporary injunction agreed suddenly to grant the motion using default when the Petitioner who was the father was out of State.

 When the judge realize the respondent had filed a motion to set aside and also to modify she decided to place a band aid to temporarily resolve the issue. When the Attorney General Offices contended there would be paper work associated with the band aid the judge seem to change her mind resetting the hearing.
At the reset the respondent was testifying of violence to children by respondent who was the mother. That's not what the judge wanted to hear so she scheduled an interview with both children 10 and 16 years.

 On the day of the trial she had another change of mind; she will only interview the 16 year old even if both children were in the court. It never occurred to me what her motive could have been until we were reviewing the case last Saturday and brain storming as to what her motive would be. The judge knew the 16 year old was living with the mother, while the 10 year old was living with the father for prolong periods even after the default judgment.
The plan seem to be avoid the 10 year at all cost. but work towards getting both children to the favored mother. This default judgment was hot and had to be resolved at all cost. Then the judge gave the father the 10 year old as a result of a TRO but not for long.

 The judge entertained a motion from the respondent to again get possession of the child. Remember the 10 year old have to be joined to the mother as per the objective of the court. Now the child had resisted efforts from the mother and the police to return her to the mother. so the only option left to the judge to achieve the reunion is to schedule another hearing ordering the child be brought again to the court

 The 246 court associate scheduled the hearing for 10 am. The petitioner and the child arrived at 10 am as per the court. Strangely the mother and attorney were standing next to the elevator. I advise the child to go say hello to the mother, while I checked to verify the Judge was in the court. I then return to look for the child but she was no where to be found.

The child had vanishedd along with the mother and attorney, using the elevator and out of the 17 floor building. I returned to the court and inquired as to what had happened.

The associate judge court 246 Houston informed me that the mother and attorney showed up at 9 am so she simply held the hearing giving them the child. I reminded the judge that I had called the court confirming I was on my way to court confirming the 10 o clock docket and she replied they were there so I had the hearing.

 Another example of court 246 simply ignoring due process and granting orders without hearings. Similar to granting default judgments service has to be made consistent with US laws and a hearing must be held. Judges cannot be allowed to confiscate property and nab children to suit their purpose.

 If allowed our country would become a mess and the court would parallel that of kangaroo justice, Now a reasonable person can conclude as we did that the court had no interest hearing from the 10 year old while in possession of the father. yet the court was happy interviewing the 16 year old who lived with the mother.

All that was left was for the court to bring children and mother under the same roof removing the father from the house.
Without hearing the motion to modify all the court had to do is keep denying the motion pending final trial when all temporary orders would be canceled. Then the default judgment would be taken care of, the court would have achieved its objective and live goes on. Or would it?

KNOW YOUR RIGHTS REGARDING DEFAULT JUDGMENTS

DEFAULT JUDGMENTS: NOT AN ATTORNEY OR INTENDED TO BE USED AS LEGAL ADVISE. CONSULT AN ATTORNEY: An area of advantage for the judicial community is that Judges and Law makers are off springs of lawyers; that is especially true for Judges. That means they speak the same language.

 One expected secret is that this family would like us to believe this language is too complicated for common understanding. In fact family court judge from 246 Houston frequently remind litigants that it takes 4 years to obtain a law associated degree and that is necessary for understanding processes of the court. NOT SO YOUR HONOR. Below is a map of civil events in America where ordinary folks like me learn about their Human and Civil rights.

 PLEASE FIND ONE OF THESE EVENT AT WWW.PEOPLEPOWER.ORG every spot on the map is a civil right event accepting participation.
If we accept this as fact, we would have lost every sense of independence and would have to be subjected to the wills and fancy of courts, lawyers and judges. Common sense it now endangered. We cannot surrender to lawyers and expect to obtain justice.

Judges and lawyers are 6 of one kind half a dozen of another. If we are to do justice to our selves we need to find time to help our selves regarding defense incases we or our family are involved with.

 What I have done here is take excerpts from an actual case regarding default judgments. Family courts love default judgments, especially when they suspect they will not be challenged or not challenged in a timely manner. Your attorney may want to manage your case in a way that does not complicate things for them. Most, especially new and not well know lawyers are literally afraid of judges.

 Judges silently remind lawyers don't upset their apple cart. The constitution demands you provide a defense to allegations against you, and that you have the right to petition your Government. That includes the court. We have protection family courts would like us to be ignorant about. Family courts usually follow Default Judgments with temporary orders. NEXT TOPIC WILL BE TEMPORARY ORDERS.

 Below are legal justification against judges arbitrarily imposing default judgments. If you are unfortunately involved with any case civil or otherwise and you hear of a default judgment. Take consolation that you are facing one of the most troubling procedures to appeal court judges. These are some decisions used by judges and higher courts to determine viability of default judgments. Educate your self, then speak with a knowledgeable lawyer.

 Attempting to keep and set aside default judgments are not tasks for the fainthearted. In fact, historically, a default judgment has one of the highest rates of reversal on appeal. At every juncture, potential problems lie in wait for the novice and expert alike. The purpose of this paper1 is to talk about default judgments in general, to review the rules of service (which should be the starting place for one trying to keep or set aside a default judgment), to explain the methods of attacking a default judgment, and finally, to review select significant Texas appellate default judgment cases. I. Default Judgment Basics A. Default Judgments Defined A default judgment can be generally defined as a judgment entered by the trial court, at the plaintiff’s request, based on a defendant’s failure to appear and file an answer within the time allowed by law. TEX. R. CIV. P. 107, 238, 239; see also Fontenot v. Hanus, No. 03-05-00551- CV, 2007 WL 2330719, at *1 (Tex. App.—Austin Aug. 17, 2007, no pet.) (default judgment improper against plaintiff who failed to appear for trial; case should have been dismissed instead).

Texas law does not authorize a defendant to take a default judgment against a plaintiff on the merits of its suit. State v. Herrera, 25 S.W.3d 326, 327 (Tex. App.—Austin 2000, no pet.). A defendant must file an answer to a lawsuit by 10:00 a.m. on the first Monday following the expiration of twenty (20) days from the date of service of the petition, unless that Monday is a legal holiday. TEX. R. CIV. P. 4, 99. A default judgment rendered before the defendant’s answer is due is erroneous and constitutes a void judgment. Conaway v. Lopez, 880 S.W.2d 448, 449 (Tex. App.—Austin 1994, writ ref’d) (and citations contained therein). Likewise, a default judgment may not be rendered after a defendant has actually filed an answer. Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 246 (Tex. App.—Corpus Christi 2004, no pet.).

It is reversible error to enter a default judgment after the defendant has filed an answer, even if that answer is filed after the answer date but before the default judgment is entered. In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.— Houston [1st Dist.] 2002, no pet.). Generally, a defendant’s failure to answer a petition equates to an admission of all facts properly pleaded in plaintiff’s petition, except as to unliquidated damages, as well as a waiver of any affirmative defenses. Gardner v. U.S. Imaging, 274 S.W.3d 669, 671 (Tex. 2008); Texaco, Inc. v. Phan, 137 S.W.3d 763, 769 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Simon v. BancTexas Quorum, N.A., 754 S.W.2d 283, 286 (Tex. App.—Dallas 1988, writ denied); First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 645 (Tex. App.—Dallas 1987, no writ); but see Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that in a divorce case, a default does not equate to a confession of the matters in the petition). Assuming the facts in the petition set out a cause of action, a default judgment conclusively establishes the defendant’s liability.

 Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). However, if a defendant fails to file an answer, but the facts alleged against him do not, as a matter of law, create liability against him, then the failure to file an 1 The authors gratefully acknowledge R. Alan York, who has graciously allowed us to update a previous version of this paper. answer cannot create that liability. Doubletree Hotels Corp. v. Person, 122 S.W.3d 917, 919 (Tex. App.—Corpus Christi 2003, no pet.); see also World Sav. Bank, FSB v. Alaniz, No. 01-06- 00549, 2007 WL 1018416, at *1-3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, no pet.).

 On the date defendant’s answer is due, a plaintiff is entitled to have the trial court call the cause for default judgment, and the trial court may properly enter a default judgment against any defendant who has not filed an answer after proper service of citation, so long as the citation, with the officer’s return, has been on file with the clerk of the court for at least ten (10) days. TEX. R. CIV. P. 107, 238, 239.

 However, a plaintiff may waive its right to a default judgment. For example, if a plaintiff proceeds to trial as if defendant had filed an answer, the plaintiff will waive its right to a default judgment. Foster v. L.M.S. Dev. Co., 346 S.W.2d 387, 397 (Tex. Civ. App.—Dallas 1961, writ ref’d n.r.e.); Dodson v. Citizens State, 701 S.W.2d 89, 94 (Tex. App.— Amarillo 1986, writ ref’d n.r.e.) (by not moving for default judgment until parties had announced ready for trial, and a jury had been selected, plaintiffs waived their right to a default judgment).

 At the time a trial court is asked to enter a default judgment, the trial judge must make two basic judicial decisions: first, whether the court has jurisdiction over the subject matter; and second, whether the court has jurisdiction over the parties to the suit. AAA Navi Corp. v. Parrot- Ice Drink Products, 119 S.W.3d 401, 402 (Tex. App.—Tyler 2003, no pet.). As such, the trial court has a duty to ascertain whether the defendant has been properly served with citation and whether the defendant has an answer on file. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968); Pino v. Perez, 52 S.W.3d 357, 360 (Tex. App.—Corpus Christi 2001, no pet.).