Texas Lawyer Blog

Dallas judge to be in sweet seats for World Series Game 3 with law school friend, MLB operations VP

On Saturday if you look hard enough during Game 3 of the World Series on television, you might spot 14th District Court Judge Eric Moyé of Dallas in the stands. Chances are good that Moyé will be in a camera shot or two because he’ll be sitting in the sweet seats with his old Harvard Law School classmate, Jimmie Lee Solomon, who is vice president of Major League Baseball operations. Even though Moyé moved to Texas in 1972, which is the same year the Rangers came to Arlington, he won't be rooting for the home team. “I’m not rooting against the Rangers. I’m rooting for the Giants. The song says, ‘Root, root, root for the home team.’ And for me the home team is the New York Giants.” For those unfamiliar with baseball history, the Giants moved from New York City to San Francisco in 1958. And the original Giants lay claim to having one of the best players ever to play the game on their team: center fielder Willie Mays. Moyé’s connection to the Giants is more than just regional, he says. Before the team moved to California, Mays lived across the street from Moyé's family in Harlem on 155th Street and St. Nicholas Place. “We used to go see him play,” Moyé says. Moyé is a massive baseball fan who usually attends Major League Baseball’s Civil Rights Game in May. His iPhone is full of photos of himself with some of the games’ greats, including “Hammering” Hank Aaron and “Mr. Cub” Ernie Banks. The photo above is “Mr. Cub” on the left and Moyé on the right. If you see Moyé at the game, be kind to him — or not. While he’s rooting for the home team, he is an unabashed New York Yankees fan. “My dad was more of a Yankees fan than a Giants fan. He took us to Yankee stadium more,” Moyé says.
-- John Council

Magistrate judge recommends denial of Kent’s motion to vacate, set aside or correct his sentence

Former U.S. District Judge Samuel B. Kent’s effort to get his 33-month sentence vacated, set aside or corrected isn’t looking very good after a recent report and recommendation issued by a federal magistrate. On October 20, U.S. Magistrate Judge Miles Davis of the Northern District of Florida signed a report and recommendation that Kent’s motion to vacate, set aside or correct his sentence should be denied. “After a careful review of the record and the argument presented, it is the opinion of the undersigned that defendant has not raised any issue requiring an evidentiary hearing . . . and that the motion should be denied,” Davis wrote in a 17-page report. Davis also found that in the event of an appeal, a certificate of appealability should be denied. In a motion filed on Aug. 2 asking that his sentence be vacated, set aside or corrected, Kent alleged his sentence should be reviewed on three grounds: the U.S. Bureau of Prisons ignored the sentencing judge’s intent by denying Kent admission to the Residential Drug Abuse Program (RDAP); he was subjected to “conditions tantamount to psychological and physical torture” since he began serving his sentence in June 2009; and his sentence violated due process. On Sept. 15, in an opposition in United States v. Samuel B. Kent, the government urged U.S. District Judge Roger Vinson of the Northern District of Florida, who sentenced Kent while sitting on assignment, to deny Kent’s motion. “The motion lacks even the barest factual support, and all but one of the motion’s claims are procedurally barred, because they must be brought in a civil rights lawsuit, not a petition,” the government alleged in the opposition. Sean Buckley, a lawyer at DeGuerin & Dickson in Houston who represents Kent, says Kent’s lawyers are deciding what to do in the wake of Davis’ report and recommendation. “Judge Kent is not being subjected to these abusive conditions currently, so we have no immediate complaint,” he says. However, Buckley says they remain concerned about the “substantive difference” between Vinson’s intent when sentencing Kent and how the former Galveston federal judge has been treated by the BOP. Peter Ainsworth, a prosecutor at the U.S. Department of Justice in Washington, D.C. who prosecuted Kent, did not return a telephone message seeking comment about Davis’ recommendation. On May 11, 2009, Vinson sentenced Kent to 33 months in prison after the former Galveston federal judge earlier had pleaded guilty to one count of obstruction of justice as part of a plea deal. Vinson recommended that Kent participate in the BOP's substance abuse treatment program (RDAP), which, if successfully completed, would give Kent a 12-month credit on his sentence. However, Kent alleged in his motion that the BOP has “officially denied Kent admission into RDAP” because he was sober during the 12 months preceding his arrest. Kent is currently scheduled for release from prison in November 2011, according to the BOP website.

-- Brenda Sapino Jeffreys

Legal community to celebrate Red Mass tonight in San Antonio

Amanda Schneider, a second-year student at St. Mary’s University School of Law, is looking forward to taking in a Red Mass at San Fernando Cathedral in San Antonio at 6 p.m. tonight. The Red Mass is a Roman Catholic tradition highlighting the beginning of the judicial year. “It’s the blessing on the judicial year and includes judges, lawyers, and, thankfully, it includes the law students, because we need the blessing,” Schneider says. This is the 58th year that the law school has been involved in coordinating the Red Mass in San Antonio, she says. Schneider has been helping Sister Grace Walle, the law school’s minister, organize the annual event. Schneider says that in addition to jurists, lawyers and students, people throughout the legal community, including paralegals, bailiffs, advocacy groups and court reporters, will join in the affair. “What I think is so interesting and neat about participating in Red Mass is you see how close knit our judicial community is,” Schneider says. “It is such a neat experience. Everyone I know that goes really enjoys the experience.” The public is invited to attend the Mass and a reception afterwards at the Plaza Club in downtown San Antonio, Schneider says. Corpus Christi lawyer Emily Jirovec is a 2008 graduate of St. Mary’s law school and plans to arrive early on Thursday to help Walle with any last-minute preparations. Jirovec is a law clerk with the 5th Administrative Judicial Region and says she attended her first Red Mass in 2005 while a first-year law student. She notes that both Catholics and non-Catholics are invited to participate. “It’s a renewal of your faith and using faith in your legal practice,” she says.

-- Jeanne Graham

UPDATED: R. Allen Stanford has new criminal-defense attorneys

R. Allen Stanford has new criminal-defense attorneys — again. The issue was settled at a brief hearing this morning. Two Houston attorneys, Christopher Bebel and Stephen Cochell, had filed a notice Oct. 26 that they were representing Stanford in his criminal case, and, at the hearing, Houston attorney Michael Stanley also sought to represent Stanford. However, Senior U.S. District Judge David Hittner of Houston appointed Houston criminal-defense lawyers Robert A. Scardino Jr. and Ali R. Fazel to defend Stanford from criminal charges. They will be paid with funding through the Criminal Justice Act, because Stanford is indigent. Hittner noted that, as trial judge, he has “sole prerogative and authority” to appoint attorneys for Stanford pursuant to the CJA. Hittner asked Gregg Costa, the assistant U.S. attorney in the Southern District of Texas prosecuting the case, his opinion about which lawyers to appoint, and Costa said it was the court’s choice. Hittner’s order came after Robert S. Bennett of Bennett Nguyen Joint Venture, Stanford’s criminal-defense attorney since April, withdrew his motion seeking CJA funding to represent Stanford. Hittner told Bennett he may withdraw from the case once Bennett provides his files to Stanford’s new attorney. Another attorney for Stanford, Michael Essmyer of Essmyer, Tritico & Rainey is also out of the case; Hittner vacated his previous order denying Essmyer’s request to withdraw from representing Stanford. Hittner told Bennett and Essmyer that they remain subject to the gag order in the case, along with their staff and anyone else who worked with them on the Stanford defense and that they are to have no further contact with Stanford. Stanford goes to trial Jan. 24, 2011. Stanford has pleaded not guilty to fraud and conspiracy charges related to an alleged conspiracy to defraud investors who bought about $7 billion in certificates of deposit sold through Stanford International Bank Ltd. Stanford needs court-appointed lawyers because U.S. District Judge Nancy Atlas issued an order that allows insurance companies holding Stanford Financial Group officers-and-directors policies to deny coverage for Stanford and two other executives.

-- Brenda Sapino Jeffreys

UPDATE: Read the order Hittner issued Oct. 28 here.

Fee applications filed in bankruptcy case of Texas Rangers' former owner

The Arlington-based Texas Rangers are scheduled to play Game 1 of the World Series in San Francisco on Oct. 27. But another type of action should happen soon in the bankruptcy case of the team's former owner. If a federal bankruptcy judge approves fee applications filed recently, three firms that represented parties in the bankruptcy case of Texas Rangers Baseball Partners (TRBP) will collect some $6.1 million in fees and expenses. On Oct. 12, Weil Gotshal & Manges filed a first and final fee application for the period of May 24 though Aug.12 in In Re: Texas Rangers Baseball Partners in the U.S. Bankruptcy Court for the Northern District of Texas in Fort Worth. In its fee application, Weil Gotshal seeks compensation for $5.47 million in fees and expenses — some $5.1 million of that is for fees at an hourly blended rate, excluding paralegals, of $628.11. Weil Gotshal provided services to TRBP, the debtor. In Weil Gotshal’s application, the firm notes that it helped its client “in achieving confirmation of a consensual plan that had been modified, with Weil’s assistance, to address objections from, among others, the Lenders, the committee of unsecured creditors . . . and the United States Trustee for the Northern District of Texas.” The firm also notes in its application that it played a “significant and an important role in the sale process” and TRBP’s “expeditious emergence from chapter 11.” Fort Worth’s Forshey & Prostok, which served as TRBP’s conflicts counsel, filed its fee application on Oct. 13, seeking a total of $541,580 in fees and expenses for the period of May 24 through Aug. 12 — $526,000 of that being fees at a blended hourly rate, excluding paraprofessionals, of $425.24. K&L Gates, which served as counsel to the official unsecured creditors committee, filed its fee application Oct. 12, seeking $228,883 in fees and expenses — $209, 674 of that in fees at a blended rate, including paraprofessionals, of $317.50. K&L Gates is seeking the compensation and reimbursement for June 3 through Aug. 12.

-- Miriam Rozen

May it please the court, very important baseball matters compel continuance

In what is certainly a first-of-its-kind legal pleading (at least by a fan of the Texas Rangers), a Dallas lawyer says he filed a continuance motion yesterday in a city of Irving Municipal Court. Why? He wants to attend his favorite team’s first-ever World Series appearance on Oct. 27. Darrell W. Cook says he has tickets to Game 1 of the World Series between the Rangers and the San Francisco Giants, which falls on the same day as a pretrial hearing in his client’s code enforcement case. So a city prosecutor asked that Cook put his reasons for the continuance in writing and file it with the municipal court, which he did. Cook notes in an e-mail that he filed the motion by fax. “To put in bluntly, Darrell must be in San Francisco to attend to Very Important Baseball matters and really, really needs to not be obligated to attend the hearing scheduled for October 27th, 2010 as he has no one to cover for him so that he can see to his business in San Francisco,” Cook writes in the motion. Cook says he has not yet heard back from the municipal court, which is causing him some tension. “It is very important baseball business. That’s the conundrum I’m in. The court has 40 motions it has to decide tomorrow morning,” says Cook, of Darrell W. Cook & Associates. “I would really rather be there . . . at the court. But I can’t be there and attending to some very important baseball business in San Francisco. I’m only one dude.”

-- John Council

Texas Supreme Court denies as improvidently granted petition by Austin church in day-care case

Last month, the Texas Supreme Court heard arguments in Hyde Park Church v. Turner, et al. But on Oct. 22, the high court denied the church’s petition in Hyde Park as improvidently granted. In that case, an Austin jury found that Belinda Sue Lowry, a teacher in a church-operated day-care center, intentionally knocked a child down, causing him to hit his head on a tile floor. The parents had sued the church and Lowry, alleging that the teacher had subjected their son to verbal and physical abuse over a six-month period. The jury found that the church should be assessed 80 percent of the fault and that Lowry should be assessed 20 percent of the fault. The 3rd Court of Appeals affirmed the trial court’s judgment and noted in its opinion that the jury had awarded about $163,000 in damages against the church, including $100,000 for the child’s future mental anguish. Among the issues in Hyde Park were whether the jury’s apportionment of fault was improper and whether the $100,000 in mental anguish damages that the Austin jury awarded the child’s parents were proper when the jury found the church negligent but that it did not act with malice. According to an April 2, 2007, judgment in Hyde Park, the 353rd District Court severed Lowry from the suit. Howry Breen & Herman partner Sean Breen of Austin, Lowry’s attorney, did not return a telephone call seeking comment. However, Breen said in a previous interview that Lowry reached a confidential settlement with the child’s parents in March 2007. Breen said Lowry did not admit any liability. Laurie Higginbotham (pictured, left), attorney for the parents and a partner in Archuleta, Alsaffar & Higginbotham in Austin, says she is pleased with the Supreme Court’s decision. “I think they [Supreme Court justices] just confirmed that kids come first and day-care centers should be responsible for their safety,” Higginbotham says. David Pruessner (pictured, right), attorney for the church and a partner in Pruessner & Alexander in Dallas, says, “I’ve never seen this done on a case before, and I don’t know what it means.” Pruessner says the Supreme Court did not indicate why it denied the petition. He adds, “They changed their minds about whether to hear the case. I’m surprised.” Blake Hawthorne, the Supreme Court’s clerk, says that under the high court’s internal operating procedures, it takes six votes to deny a petition as improvidently granted. Hawthorne says such a denial can be based on many different reasons and there is no standard criteria.

-- Mary Alice Robbins

Texas Commission on Judicial Conduct seeks rehearing in CCA Presiding Judge Sharon Keller’s case

To quote Yogi Berra, “It ain't over ’til it’s over.” That quotation may take on special meaning today for Texas Court of Criminal Appeals Presiding Judge Sharon Keller. This morning, Seana Willing, the examiner for the State Commission on Judicial Conduct, filed a motion for rehearing in Keller’s case with the Special Court of Review. On Oct. 11, the three-justice court of review appointed by the Texas Supreme Court in Keller’s case vacated the judicial conduct commission’s public warning of Keller and dismissed the commission’s charges against her. In the Oct. 26 motion for rehearing, the commission’s examiner alleges that the court of review erred by rendering a judgment of dismissal and in concluding that the commission cannot issue a warning after a formal proceeding. The commission had instituted formal proceedings against Keller in February 2009 in connection with her conduct in the case of convicted murderer Michael Richard. The state executed Richard on Sept. 25, 2007, after his attorneys did not file a motion for stay of execution and application for writ of prohibition with the CCA. In the motion for rehearing, the examiner also alleges that the court of review’s award of “costs if any” to Keller is prohibited by Texas Government Code §33.031 and should be deleted from the judgment. With regard to the judgment of dismissal, the examiner argues that no evidence suggests that less than seven members of the commission voted to enter the order of public warning to Keller. According to the examiner’s motion, “The Commission did not disclose how individual members voted, or what viewpoints each expressed as to the severity of discipline that was appropriate.” The examiner notes in the motion that the commission has three new members since it issued the public warning. “The Commission’s earlier vote, based on its perception that Rule 10(m) [of the Procedural Rules for the Removal or Retirement of Judges] allowed the Commission to show leniency, does not reveal how the Commission would not vote if given a narrower range of options,” the examiner alleges in the motion. The examiner alleges that because the court of review did not reach the merits in Keller’s case, it should remand the case to the commission. According to its opinion, the court of review concluded that under the Texas Constitution and the Texas Government Code, it is impermissible to assess sanctions against a judge following a formal proceeding. As noted in the court of review’s opinion, the Texas Constitution provides after informal proceedings that the commission may issue a sanction, such as a private or public admonition, warning or reprimand or a requirement that a judge obtain additional training or education. But, as noted by the examiner in the motion for rehearing, the court of review found the plain language of the constitution and the Government Code to be  “inconclusive” regarding whether the commission can issue anything but a censure or a recommendation for removal or retirement of a judge following a formal proceeding. The court of review’s decision, as noted by the examiner, is based on Texas Government Code §33.034(a), which allows a judge’s appeal of a sanction to be considered in a trial de novo but allows only a review of the record for a judge’s appeal of a censure. Commission executive director Willing, the examiner, and Graves Dougherty Hearon & Moody shareholder John J. “Mike” McKetta III of Austin, special counsel in Keller’s case, filed the motion but did not return telephone calls for comment. Commission chairman Jorge Rangel, a shareholder in The Rangel Law Firm in Corpus Christi, also did not return a telephone call. Keller declines comment. Her attorney, Charles “Chip” Babcock, says he is disappointed that the examiner filed the motion. Babcock, a Jackson Walker partner in Dallas and Houston, says, “I’m frustrated by the fact that Judge Keller has got to continue expending attorneys’ fees, when the examiner doesn’t. It’s not a fair situation.” The commission paid McKetta $1 to serve as special counsel in Keller’s case. Babcock says Keller’s attorneys’ fees are in the six figures.
-- Mary Alice Robbins

Plaintiffs sue city of South Padre Island over parking ordinance

In an Oct. 22 complaint filed in U.S. District Court for the Southern District in Brownsville, Belinda Lopez and others allege that a new parking ordinance enacted by the city of South Padre Island violates their constitutional rights. Nonprofits Texas RioGrande Legal Aid, the South Texas Civil Rights Project and Rio Legal Services represent the plaintiffs in Valley Association for Independent Living, et al v. The City of South Padre Island. In addition to Lopez, plaintiffs include the Valley Association for Independent Living, a nonprofit advocacy organization for disabled; Eduardo Cantu, a wheelchair-bound quadriplegic; and other unnamed plaintiffs similarly situated to Cantu or Lopez. The parking ordinance, which became effective in March, bars parking on streets that run east and west near a three-mile beach within the city limits from March to September each year. According to the complaint, the ordinance as written and applied unlawfully discriminates against the disabled and Hispanics in the Rio Grande Valley and the region in violation of 42 U.S.C. §1983, and it violates their First, Fifth and 14th Amendment rights under the U.S. Constitution and similar provisions under the Texas Constitution. The complaint alleges that the city passed the ordinance to limit the use of city beaches by spring breakers and also by “daytrippers,” who are usually Hispanic and from more rural parts of the Valley. The complaint notes that the ordinance is not effective during the winter months when “Winter Texans,” typically white retirees, use those spaces to enjoy the beaches. The plaintiffs seek a court order that the ordinance is unconstitutional and actual damages for plaintiffs who have had to pay parking citations and towing fees, as well as reasonable attorney’s fees. David Horton started Rio Legal Services to provide pro bono services and also is a South Padre solo; he is among the lawyers representing the plaintiffs. He says he previously filed an administrative complaint with the Texas General Land Office alleging the city of South Padre Island fails to meet state requirements to provide one parking spot per 15 linear feet of public beach. Paul Cunningham, the city attorney for South Padre Island, did not immediately return a call seeking comment.

-- Miriam Rozen

Attorney challenges State Bar efforts on proposed disciplinary rules

An Austin attorney contends that State Bar of Texas advocacy of amendments to the Texas Disciplinary Rules of Professional Conduct may be “overstepping the bounds.” In an Oct. 14 letter to State Bar officials, Crews Law Firm owner Joe Crews argues, among other things, that State Bar president Terry Tottenham’s Oct. 11 e-mail to the Bar membership appears to violate Bar policy. The e-mail explains reasons the Bar board has recommended a majority of the proposed disciplinary rules to the Texas Supreme Court. “More specifically, the e-mail appears to promote legislation in violation of the State Bar of Texas Board of Directors Policy Manual,” Crews writes. In his letter, Crews cites §8.01.03 of the policy manual, which sets out the “criteria” that the board must determine are satisfied before supporting proposed legislation. Crew’s letter argues these criteria include, among other things: the legislation “does not carry the potential of deep philosophical or emotional division among a substantial segment of the membership of the bar”; proposed legislation must be in the public interest and not provide economic benefit to State Bar members; and “the proposed legislation cannot be construed to advocate political or ideological positions.” In his letter, Crews writes that Tottenham’s e-mail appears to violate each of the policy manual requirements cited in his letter. He says the requirements originated as the State Bar’s attempt to address the U.S. Supreme Court’s 1990 decision in Keller v. State Bar of California. In Keller, the high court held that a mandatory bar cannot use compulsory dues to advocate a position its members oppose. In an interview, Crews says, “There’s lots of opposition to these rules, but they’re being jammed through.” Crews sent the letter to Tottenham; Michelle Hunter, the State Bar’s executive director; and Don Jones, the State Bar’s legal counsel. Jones says he has read Keller and all of its progeny. But Jones adds, “It’s clear that one of the Bar’s primary duties is to deal with the discipline of lawyers.” As an administrative agency of the state judiciary, the State Bar is answerable to the state Supreme Court, Jones says. The state Supreme Court asked the Bar board for recommendations on the rules. In response to one call each to Tottenham and Hunter for comment, Hunter sent a copy of a Oct. 21 letter the State Bar sent to Crews. That letter, signed by Jones, states that, as an agency of the Texas Supreme Court, the State Bar is subject to the court’s direction and control. Crews says, “I certainly understand that the Bar is responsible for disciplining lawyers. . . . In a situation like this, where there is widespread controversy in the Bar, they [State Bar officials] may be overstepping the bounds.”
-- Mary Alice Robbins