Texas Lawyer Blog

Barratry bill passes without civil cause of action provisions

An effort to create a civil cause of action that clients could bring against their attorneys who allegedly engage in barratry has fizzled at the Texas Capitol. State Rep. Todd Smith, R-Eulesss, said on May 29 that he would concur with Senate amendments to H.B. 148, a bill that expands conditions for the prosecution of the offense of barratry. But Smith, a Bedford solo, says in an interview today that the House parliamentarian alerted him that the Senate amendments were not germane to his bill. On May 30, a conference committee made up of House and Senate members stripped the Senate amendments from H.B. 148, and the House adopted the conference committee’s report today. 
-- Mary Alice Robbins

Lawmaker vows to continue to seek CCA presiding judge’s impeachment

State Rep. Lon Burnam, D-Fort Worth, says he will file a resolution in 2011 to start impeachment proceedings against Court of Criminal Appeals Presiding Judge Sharon Keller if the State Commission on Judicial Conduct does not remove Keller from the bench. “If she is not off the bench, I will file an impeachment resolution the first day” of the 2011 session, Burnam says in an interview minutes after he made a personal privilege speech to the Texas House of Representatives regarding Keller. “I wouldn’t be surprised if I had 75 signatures on the resolution,” Burnam says. In his speech to the House, Burnam alleged that Keller “demonstrated gross negligence and conducted her official duties with willful disregard for human life” on the evening of Sept. 25, 2007, when attorneys for Michael Richard were attempting to file a motion for stay of execution with the CCA. The state executed Richard later that night. Burnam filed H.R. 480 in February, calling for the appointment of a House committee to investigate the allegations against Keller, but the House Judiciary and Civil Jurisprudence Committee never voted on the resolution. Burnam says he did not have the votes to bring the resolution to the House floor in the current session but opted to make a personal privilege speech to inform his colleagues about the charges against Keller. “What I did today was provide basic education,” he says. On Feb. 19, the judicial conduct commission opened formal proceedings against Keller, alleging in its notice that Keller engaged in “willful and persistent conduct” by failing to follow the CCA’s execution-day procedures on the day Richard was executed. Keller, who did not immediately return a telephone call for comment on Burnam’s address to the House, denied all the commission’s allegations in her March 24 answer. The commission has set a hearing in In Re: Honorable Sharon Keller to begin Aug. 17 in Austin. The possible outcomes of the hearing are a recommendation by the commission to the Texas Supreme Court that Keller be removed from office, a public censure of Keller or a dismissal of the charges against her. 
-- Mary Alice Robbins

Barratry bill on track to become law

A bill nearing final approval in the Texas House includes a provision that creates a civil cause of action against an attorney who engages in barratry. State Rep. Todd Smith, a Euless Republican who is the author of H.B. 148, says he will concur with Senate amendments to the bill. H.B. 148 expands the conditions that constitute the Class A misdemeanor offense of barratry to include solicitations by telephone as well as in person. Under the Senate amendments to the bill, a client can file a civil suit against the client’s attorney for violations of Texas Penal Code provisions that prohibit barratry, falsely holding oneself out as a lawyer or the unauthorized practice of law or for violating the Texas Disciplinary Rules of Professional Conduct prohibition on engaging in barratry. If the client prevails in the suit, the Senate amendments authorize recovery of any legal fees paid to the lawyer and, in addition, up to twice the amount the lawyer received as a result of the unlawful solicitation. Referring to attorneys who “run” cases, Smith, a Bedford solo and personal-injury plaintiffs attorney, says, “We have to do something about this.” Today is the last day for the House to either concur with Senate amendments to House bills or to request a conference committee. Smith says he believes he has the votes for concurrence on H.B. 148.
-- Mary Alice Robbins

House Task Force to hold June 3 evidentiary hearing on Kent's impeachment

Samuel B. Kent is set to report to federal prison on June 15, but even before the disgraced retired U.S. district judge begins to serve a 33-month sentence, the U.S. House will crank into high gear proceedings that could lead to Kent's impeachment. The House Judiciary Committee Task Force on Impeachment has scheduled an evidentiary hearing on Kent's impeachment for June 3 in Washington, D.C. Kent as well as Cathy McBroom and Donna Wilkerson — the two former staff members he has admitted to sexually assaulting as part of pleading guilty to obstruction of justice — will testify, according to two Republican staff counsel for the committee. Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on judicial discipline, also is scheduled to testify about the impeachment process, the staff counsel say. In February, Kent pleaded guilty to an obstruction-of-justice charge in exchange for the government dropping five sex abuse charges lodged against him in two separate indictments. Kent pleaded guilty to making false statements to the Special Investigative Committee of the 5th Circuit, which was investigating a complaint filed by McBroom, Kent's former case manager in Galveston. Kent's criminal-defense attorney, Dick DeGuerin, a partner in DeGuerin & Dickson of Houston, was in France this week and could not be reached for comment, but lawyers for McBroom and Wilkerson confirm the women will testify at the hearing. "We've already met with representatives on the task force and she is planning to attend and testify," says Rusty Hardin, McBroom's attorney, noting that the hearing will not be necessary if Kent resigns before then. Hardin, of Houston's Rusty Hardin & Associates, says he and more importantly, McBroom, are pleased that the Judiciary Committee is moving so quickly to launch impeachment proceedings following Kent's sentencing on May 11. "It's far more important Cathy be pleased — the victims be pleased," Hardin says. Terry Yates, of Terry Yates & Associates in Houston who represents Wilkerson, says he is surprised and pleased the committee is holding a hearing so soon after the sentencing. The committee put the impeachment process into gear after Kent was sentenced for two reasons: The House normally waits for criminal proceedings to be concluded before moving forward on an impeachment, and the committee members want to ensure Kent is no longer receiving his judicial salary, the two staff counsel say. The only way to stop the pay is through impeachment or through Kent's voluntary resignation. Kent has so far refused to resign. In February, when Kent pleaded guilty to one count of obstruction of justice for making false statements to the Special Investigative Committee of the 5th Circuit, Kent said he would retire from the bench and he asked 5th Circuit Chief Judge Edith Jones to certify him as medically disabled, which would allow him to collect retirement -- a request Jones denied. After the evidentiary hearing, the task force will make recommendations to the Judiciary Committee and the Judiciary Committee will vote on articles of impeachment. If the articles of impeachment receive a favorable House floor vote, the impeachment will move to the Senate for a trial.

-- Brenda Sapino Jeffreys and John Council

Bar None showtime approaches

Showtime is approaching for the 24th annual Bar None musical variety show sponsored by the Dallas Bar Association and produced script-to-stage by local legal eagles. The show runs June 17-20 at the Greer Garson Theatre at Southern Methodist University. This year's production, titled "Scumbag Billionaire," includes several skits and songs about current economic conditions, says director Martha Hardwick Hofmeister, including a riff on a Bee Gees song re-titled "Jerks on Wall Street" and a ditty called "Clients Got Bucks," which plays on the old school hip-hop hit "Baby Got Back" from one of raps earliest posterior promoters, Sir Mix-a-Lot. It's probably the first time we've had rap on the Bar None stage, Hofmeister notes. Music has always been a major part of the Bar None show, but this year's production promises even more musical numbers than ever, say Hofmeister and the show's producer, Tom Mighell. This year we're heavy on the music, and it ranges from Les Mis to Beyonce to the Beatles to Soggy Bottom Boys, Mighell says. And bringing it all to you is a group of more than 50 legal professionals onstage and about seven behind the scenes, including lawyers, two judges and the DBA president, Hofmeister says. (In the interest of full disclosure the group also includes the singing and dancing skills of Texas Lawyer managing editor Anne K. McMillan.) What brings this talented troupe together isn't just a shared love of the stage, but also a shared enthusiasm for the cause, which is to raise money for the Sarah T. Hughes Diversity Scholarships at SMU's Dedman School of Law. All proceeds from ticket sales -- $25 in advance through the Web site or $30 at the door -- benefit the scholarship fund.

-- Jenny B. Davis

Jones tells Kent no disability

U.S. District Judge Samuel B. Kent, who this month was sentenced to 33 months in federal prison after he pleaded guilty to obstruction of justice, received more bad news today. The Judicial Council of the 5th Circuit recommended that Kent be impeached, and 5th Circuit Chief Judge Edith Jones denied his request to be certified as disabled, a designation that could allow him to collect a federal retirement salary. In today's order, the Judicial Council wrote that Kent “by his own admission engaged in conduct which constitutes one or more grounds for impeachment under Article II of the Constitution” and certified its determination to the Judicial Conference of the United States. The Judicial Council wrote that it “urges” the Judicial Conference to take expeditious action pursuant to 28 U.S.C. §355 (b). Separately, in a letter dated May 27 denying Kent’s request for disability, Jones informed Kent’s criminal-defense attorney, Dick DeGuerin, that the “criminal investigation, indictment and the attendant publicity and shame” have triggered Kent’s current inability to function as a judge. She wrote that because Kent’s present disability is interrelated with his criminal prosecution, federal law does not permit him to retire on disability. She noted that the law allowing a judge to retire on disability assumes the judge is in good standing, and Kent forfeited that by pleading guilty to a felony, which is an impeachable offense. Jones wrote that Kent "suffers from alcoholism and diabetes, both of which may have contributed to his mental instability." In February, Kent pleaded guilty to the obstruction-of-justice charge in exchange for the government dropping five sex abuse charges lodged against him in two separate indictments. Kent pleaded guilty to making false statements to the Special Investigative Committee of the 5th Circuit, which was investigating a complaint filed by Cathy McBroom, Kent’s former case manager in Galveston. DeGuerin, a partner in DeGuerin & Dickson of Houston, is out of the country and could not be reached for immediate comment.

-- Brenda Sapino Jeffreys 

Good and better news for Dallas' 20th DNA exoneree

The good news for Jerry Lee Evans is that Dallas County Criminal District Court No. 5 Judge Carter Thompson ruled today that a DNA test exonerated him for a 1986 aggravated assault conviction that sent him to prison for the past 23 years. The better news is that now that Evans is free, he’ll get a lot more money from the state of Texas for his wrongful imprisonment because of a bill that is waiting to be signed by Gov. Rick Perry. And the guy responsible for writing that bill and lobbying for its passage just happened to be in the courtroom when Evans was exonerated. Kevin Glasheen, a partner in Lubbock’s Glasheen, Valles, Inderman & DeHoyes, represents 12 former Texas inmates who’ve been exonerated by DNA tests -- 10 of them from Dallas -- and has spent the past seven months lobbying for H.B. 1736. The bill raises the lump-sum payment an exoneree receives from $50,000 to $80,000 for each year of incarceration and gives an exoneree a lifetime annuity also based on how many years he spent in prison. Glasheen says he’s glad he spent the past two years working for the exonerees' increased compensation. But today marked the first time he’d seen an exoneration hearing that freed a man from prison. “These guys have a lot of character. They have faith in justice. And it gives you faith and hope in the world,” Glasheen said at the conclusion of Evans' hearing. “It’s different than your typical truck wreck case.”  

-- John Council

Legislative response to Entergy decision is dead

It looks like the Texas Supreme Court’s ruling in Entergy Gulf States Inc. v. Summers will be the last word on whether a premises owner who purchases workers’ compensation insurance for all employees on its job site is shielded from injured workers’ suits – at least the last word for the current legislative session. With the session ending June 1, state Sen. Robert Duncan, R-Lubbock, a partner in Crenshaw, Dupree & Milam, says that H.B. 1657, which changes the Texas Labor Code’s definitions of “general contractor” and “subcontractor,” is dead. “It didn’t have the votes,” Duncan says of the bill.
-- Mary Alice Robbins

Cutting through the yellow tape

Upon arriving in the Texas Senate chamber today, state Sen. John Whitmire, D-Houston, found his desk cordoned off with yellow tape stamped with the word “Caution.” Whitmire, of counsel at Locke Lord Bissell & Liddell in Houston, asked his colleagues, “Where do you all want me to sit?”  At one point, Whitmire asked state Sen. Robert Duncan, R-Lubbock, the Senate’s president pro tempore, “Is it too late to enhance the penalties for criminal mischief?” Austin American-Statesman reporter Ken Herman videotaped state Sen. Leticia Van de Putte, D-San Antonio, wrapping the yellow tape around Whitmire’s desk. But Van de Putte says she didn’t know the reason for cordoning off the desk. “I don’t know,” Van de Putte says. “I was just the accomplice. I was helping a fellow senator.” She declines to identify who she was helping. Whitmire’s comment, “Payback’s going to be hell.”
-- Mary Alice Robbins

Lawyer and husband charged with money laundering

A Houston lawyer, Grace D. Kopacz, and her husband were arrested and charged last week with money laundering. Kopacz, of the Law Office of Grace D. Kopacz, is out on bail, but her husband, William Harigan Rambo III, remains in jail. As alleged in a criminal complaint dated May 23, Kopacz was charged with a felony count of money laundering for knowingly accepting between $100,000 and $200,000 in criminal proceeds from the sale of illegal narcotics in April and laundering the money through “fictitious fee contracts.” Rambo was charged with money laundering for receiving the money, as alleged in a criminal complaint dated May 23. Each faces up to 20 years in prison on the money laundering felony charges. Rambo was also charged with a felony count of delivery of a controlled substance, which carries a maximum punishment of life in prison, and Kopacz was charged with one count of insurance fraud for allegedly falsely reporting to an insurance company that her automobile had been stolen. According to a written statement from Harris County District Attorney Pat Lykos, Kopacz and Rambo are “accused of agreeing to launder money for an individual in return for keeping 15 percent of the funds as their fee.” Kopacz, who lives in Cypress with her husband, did not immediately return a telephone message left at her office, and she could not be reached at her home number. According to the State Bar of Texas’ Web site, Kopacz graduated in 2003 from Southern Methodist University Dedman School of Law. The U.S. Drug Enforcement Agency assisted in the investigation.

-- Brenda Sapino Jeffreys