Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, October 13, 2015

Texas Judge Cleared in Facebook Case

This past April, I reported on this blog that a Texas district judge had been publicly admonished by the State Commission on Judicial Conduct for posting on her Facebook page information about a case she was trying.  The district judge appealed that reprimand and on September 30, a three-judge Special Court of Appeals found that the Commission, "failed to meet its  burden of proving the [Judge] violated the Canons of Judicial Conduct or Article V, Section 1-a(6)(A) of the Texas Constitution."  The Special Court dismissed the Commission's public admonition and found the Judge not guilty of all charges.

The Commission's public admonishment is here and the Special Court's judgment dismissing that admonishment is here.

See Also:

Craig Estlinbaum

October 13, 2015 in Current Events, Ethics, First Amendment, Interesting Cases, Judges, Texas Law | Permalink | Comments (1)

Thursday, May 23, 2013

Texas: Facebook "Friendship" Alone Does Not Require Recusal

The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook  "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification.  Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013). 

Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine.  Three months, later, the State filed a motion to revoke.  Defendant entered an open plea of true to the motion's allegations at the revocation hearing.   The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial.  The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.

The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules).  The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party.  For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal.  The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.

Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media.  Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification.  Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here).  Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.

The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues.  For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.

Craig Estlinbaum

May 23, 2013 in Ethics, Interesting Cases, Judges, Recent Developments, Texas Law, Web/Tech | Permalink | Comments (0)

Tuesday, April 23, 2013

Probable Cause Order Details Charges Against Former Texas Prosecutor

On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.

Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife.  Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated. 

In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online hereThis article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.

Hat Tip:  Grits For Breakfast

Craig Estlinbaum

April 23, 2013 in Criminal Law, Current Events, Ethics, Texas Law | Permalink | Comments (0)

Wednesday, January 16, 2013

Tort Law: Pets and Sentimental Value

The Supreme Court of Texas heard oral arguments on January 10 to answer whether or not a pet owner can recover for the sentimental value of a dog lost due to another's negligence. 

The case is Carla Strickland v. Kathryn and Jeremy Medlen (Case No. 12-0047).  The case came to the Texas high court following an intermediate appeallate court's opinion reversing a trial court's order dismissing the claim against Strickland with prejudice.  According to a David Yates report in the Southeast Texas Record, the allegations in the case are that an animal shelter took possession of the Medlen's dog after it escaped the Medlen's yard.  Jeremy Medlen went to pick up the animal, but did not have enough money to cover the fees.  Medlen alleges he was told he could come back with the money and a "hold for owner" tag would be put on the dog.  Strickland, it is alleged, neglegently put the dog on the list of animals to be euthanized, and it was, and when Medlen returned for the dog, he learned what had happened.

More after the jump:

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January 16, 2013 in Interesting Cases, Remedies, State Law, Texas Law | Permalink | Comments (0)

Friday, August 31, 2012

Supreme Court of Texas Applies Value-to-the-Taker Rule in Condemnation Case

When a condemning authority exercises its eminent domain power, the Federal and (usually) State Constitutinos require that authority pay fair market value to the property owner for the property taken at the time of taking.  Fair market value is determined by the property's highest and best use of the property, and the property's current use is the presumed highest and best use.  Courts may not include in the fair market value, however the value to the condemning authority, also known as special value to owner, or value-to-the-taker.  The compensation should reflect what the landowner lost, not what the condemnor gained.  Boston Chamber of Commerce v. City of Boston, 217 U.S. 189 (1910).  This value-to-the-taker rule serves to keep an owner from receiving a windfall based on the property's special or unique value to the condemnor.

The Avinger family in Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC,  ___ S.W.3d ___ (No. 10-0950, August 31, 2012) (6-3 decision) owned vacant land in a gas producing area uniquely situation for a gas production plant.  In 1973, the Avinger family leased a 23-acre property to Tonkawa Gas Processing Co., a private concern, for construction of a gas plant.  There were several lease renewals on agreed terms until 2007, when the parties could n on longer agree on renewal terms.  Tonkawa then merged with Enbridge Pipelines, an entity with condemning authority.  Enbridge petitioned to condemn Avinger's interest in the property (all improvements belongs to the gas company); the commissioners awarded Avinger $45,580 at the commissioner's hearing.  Avinger appealed.

At trial Enbridge submitted an appraisal with a value for the Avinger tract being $47,940 on a highest and best use of rural residential construction.  Avinger's expert valued Avinger's interest to be $20,955,000 using a highest and best use as industrial property - gas processing plant.

Avinger's expert included in his valuation that savings to Enbridge by being able to condemn the property.  Because the lease provided that Enbridge could remove the plant from the land and restore the land to its original condition, Avinger's only interest in the property was the vacant land.  However, the expert included Enbridge's cost savings by not having to tear down and relocate the plant; a cost Enbridge saved by condemning the property.  The Court held that because the appraisal includes value-to-the-taker as part of the value of the comdenmee's value, the appraisal should have been excluded.

The Supreme Court also affirmed the appeallate court's decision to affirm the trial court's exclusion of Enbridge's appraiser.  That appraiser established the highest and best use despite the presumtion that the law presumes the property's use for the last almost 40 years would be the highest and best use.  The Court noted the property was uniquely situated for operating a gas plant due to pipelines and roads accessing and crossing the property. 

With both appraisals found wanting, the Court remanded the case back for a new trial, possibly with different appraisers, or at least new appraisal methodologies.  As a general rule, when two appraisals come in with a difference of 43,600%, the red flags should be flying high for any court. 

The dissent reportED that the majority errED by referenceing Avinger's expert report because that report was never admitted into evidence.  The dissent claims the testimony from the appraiser was adequate to affirm the lower court's decisions.  The dissent makes a good point regarding the state of the evidence, perhaps, but their view did not carry the day with the nine justices that mattered.

Craig Estlinbaum

August 31, 2012 in Constitutional Law, Interesting Cases, Remedies, Texas Law | Permalink | Comments (2)

Tuesday, March 9, 2010

Trial Judge Rescinds Texas Death Penalty Ruling

Court watchers may recall that last week, a Harris County, Texas (Houston) district judge held that the Texas death penalty procedures were unconstitutional.  Today, Brian Rogers (Houston Chronicle) reports that the same judge rescinded that earlier order this afternoon and set the matter for further briefing and a hearing next month.

Craig Estlinbaum

March 9, 2010 in Criminal Law, News, Texas Law | Permalink | Comments (0)

Friday, July 11, 2008

Hourly Rate Engagement Letter Held Not Ambiguous

A client hires an attorney to represent him in a case.  The client signs an engagement letter to pay the attorney $200.00 per hour and further agrees to rates applying to the attorney's staff.  The attorney and client negotiate a $10,000 retainer, later reduced by agreement to $5,000.   At the case's conclusion, attorney bills client for $35,304 after crediting the client the $5,000 retainer paid.   Client pays only $5,000 on the outstanding balance.

After failing to collect, attorney sues client for nonpayment.  The client argues that because the written contract did not explicitly state whether the parties had agreed to an open account or a flat, maximum fee, the contract was ambiguous and therefore, a fact issue existed regarding the contract terms.  The trial court disagreed and granted summary judgment for the attorney, but a Texas Court of Appeals held that the parol evidence could be admitted to raise a fact issue and reversed the trial court's decision. 

Today, the Supreme Court of Texas in a per curiam decision reversed the appellate court and reinstated the trial court's judgment.   Here is the critical passage in the court's opinion:

The plain language of the engagement letter demonstrates that Haden agreed to pay Sacks an hourly fee, and that no cap on fees was set. Haden argues that a fee agreement must specifically state that hourly fees will accrue without limit in order for the agreement to be unambiguous and enforceable. But the lack of such explicit language is irrelevant if the agreement can be reasonably interpreted only one way.  We have never held that an open-ended hourly fee agreement will be enforced only if it expressly states there is no cap on fees, and we decline to do so now. If a contract is unambiguous, the parol evidence rule precludes consideration of evidence of prior or contemporaneous agreements unless an exception to the parol evidence rule applies.

The case is Sacks v. Haden ___ S.W.3d ___ (Tex. July 11, 2008).

Craig Estlinbaum

July 11, 2008 in Contract Issues, Texas Law | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2008

Texas Appellate Court Returns Some FLDS Children to Parents

The Court of Appeals in Austin, Texas ordered the State to return some children taken into protective custody in a raid on the Fundamentalist Church of Latter Day Saints (FLDS) to the parents.  In re: Sara Steed, et al, ___S.W.3d___ (Tex. App.--Austin, May 22, 2008) (orig. proceeding).

In March, Texas child welfare officials took an estimated 450 children into protective custody after receiving reports about abuse from a 16-year old girl.  The children and their parents, adherents of the  FLDS faith, reside at the Yearning for Zion ranch in Eldorado, Texas.  In April, after holding a hearing and receiving testimony and other evidence, the trial court entered temporary orders naming the Texas Department of Family and Protective Services (TDFPS) managing conservators of the children, effectively keeping the children in foster care as the case proceeds.  The parents in the appeal challenged the temporary orders by application for writ of mandamus.

Under Texas law, to sustain a child's removal from the parents, TDFPS must prove at an adversary hearing that "(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; (2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and (3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home."  Tex. Fam. Code sec. 262.201(b).

The appellate court further held that the Department must show "specific circumstances that justify keeping the children in the Department's protective custody."  The court itemized the Department's evidence and found that it did not meet this burden for the children before the court.  For example, the Department did not dispute that there was no evidence that male children or the female children who had not reached puberty were victims of sexual or other physical abuse or were in danger of such abuse at the compound, the court noted.  The court further found undisputed evidence that with the exception of five children identified as becoming pregnant between the 15 and 17 years of age, none of the children were victims or potential victims of sexual or physical abuse.

The Department argued that girls residing at the ranch who had not reached puberty were at risk of sexual or physical abuse because those who reside there have a "'pervasive system of belief' that condones polygamous marriage and underage females having children."  The court rejected this argument, concluding that "the existence of the FLDS belief itself, does not put the children of FLDS parents in physical danger."  The court noted it would be the imposition of these beliefs on specific individuals that may put the child in danger, and further noted the Department offered no evidence of such imposition on these children in the record.

The court also found no urgent need to remove the children existed in the record.  The court said even in the event "one views the FLDS system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse," there was no evidence that this danger is immediate or urgent with respect to every child at the compound.

Regarding whether the Department made reasonable efforts to return the children to their home, the court wrote (footnotes omitted):

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children.  The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.  They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents.  This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators.

The Austin court's decision does not address the broader and hotly contested philosophical, religious and constitutional issues that has fueled debate about the case.   The opinion only explains the statutory burden imposed upon the Department to sustain removing children from their parents under Texas law, reviews the evidence the Department provided to support removal and finds that evidence does not meet the burden.   Further, the opinion does not address all the children involved in the case and does not end the Department's case as to those children, but merely orders the children returned to their parents as the case continues.

Craig Estlinbaum

May 23, 2008 in Interesting Cases, News, Texas Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2008

Hyman, et al., on Medical Malpractice Damage Caps

David A. Hyman (Illinois), Bernard Black (Texas), Charles Silver (Texas) and William M. Sage (Texas) posted "Estimating the Effect of Damage Caps In Medical Malpractice Cases:  Evidence from Texas" on the Social Science Research Network.  Here is the abstract:

Using claim-level data, we simulate the effect of Texas's 2003 cap on non-economic damages on jury verdicts, post-verdict payouts, and settlements in medical malpractice cases closed during 1988-2004. For pro-plaintiff jury verdicts, the cap affects 47% of verdicts, and reduces mean allowed non-economic damages, mean allowed verdict, and mean payout by 73%, 37%, and 26%, respectively. In total, the non-econ cap reduces adjusted verdicts by $156M, but predicted payouts by only $60M. The impact on payouts is smaller because a substantial portion of the above-cap damage awards were not being paid to begin with. In cases settled without trial, the non-econ cap affects 18% of cases; and reduces predicted mean payout for non-economic damages (predicted mean total payout) by 38% (18%). The non-econ cap has a smaller impact on settled cases than tried cases because settled cases tend to involve smaller payouts.

The impact of the non-econ cap varies across plaintiff categories. Deceased, unemployed, and elderly plaintiffs suffer a larger percentage reduction in payouts than living, employed, and non-elderly plaintiffs, these differences are statistically significant for the first two comparisons.

We also simulate the effects of different caps, and find substantial differences in cap stringency across states. Different caps reduce aggregate payouts in tried cases (all cases) by between 16% and 65% (7% and 42%). Caps on total damages have especially large effects.

The authors take no position on the merits of damage caps, seeking instead to "provide[] an objective basis for estimating the likely effects of specific caps, both and in the aggregate and for particular categories of plaintiff."  As damage caps become more prevalent in the states, empirical studies such as this one will play a key role in determining what caps most effectively balance the victim's right to full recovery for harm done against the need to restrain unreasonably large jury verdicts.

Craig Estlinbaum

February 6, 2008 in Remedies, Texas Law | Permalink | Comments (0) | TrackBack (0)