(Note: As I have done in past elections, I am running a series of Q&As for judicial candidates in contested Democratic primaries. This is intended to help introduce the candidates and their experiences to those who plan to vote in March. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.
James Horwitz
1. Who are you and what are you running for?
James S. Horwitz, and I am a Democratic candidate on the March 6, 2018 primary ballot for the Judge for Harris County Probate Court #4.
2. What kind of cases does this court hear?
Unfortunately as we all learn sometimes too soon, life is finite and will ultimately end in death. Additionally, age, diseases, and injuries impact our abilities to be self sufficient. Our society, as represented by our legislature, determined that for these reasons, all of us could use assistance in managing some or all of our daily affairs and ultimately our estate after our death. These activities are often managed by the intervention of Probate Courts. The Texas Constitution grants the Texas Legislature the authority to determine which court handles probate matters.
As a result of the efforts of our Texas Legislature, 10 of the 15 largest counties (specifically including Harris County) have Probate Courts. These Probate Courts handle matters of (i) the administration of the distribution of the assets of a decedent (one who has died), (ii) guardianship issues, (iii) issues regarding trusts; and (iv) in this Harris County Probate Court # 4, the determination of involuntary commitments of individuals to mental health institutions.
In regard to the administration of the distribution of the assets of a decedent (one who has died), the Court must:
(1) look to the laws of descent and distribution if one has died without a Will such as by granting an Order of Administration; and
(2) give judicial approval to the personal representative to administer matters of the estate;and
(3) determine the validity of Wills; and
(4) make orders concerning the provisions of a valid Will (by issuing the Order Admitting a Will to Probate); and
(5) rule on issues of breach of fiduciary duties by executors and administrators of estates.
Because Texas utilizes independent administration of a decedent’s estate, once an applicant’s paperwork has been presented to the Court and approved, that person as a representative of the Decedent’s estate can operate free of any further involvement/supervision by the Probate Court. The vast majority of cases (90%) before the Probate Court are of this nature which allows the Court to operate in merely an administrative function.
In contested matters involving probate with a Will, a Probate Court (1) examines the genuineness of a Will; and/or (2) whether the Will was made under duress or that the Will is not the last Will written by the deceased person. It is the job of the Probate Court to decide which Will is authentic. Once that determination is made, the Probate Court appoints an Executor to fulfill the terms of the Will. In many cases, an Executor is named in the Will and the court appoints that person. The Executor then executes the Will according to the deceased person’s wishes as stated in his/her Will.
When age, diseases, and injuries impact our abilities to be self sufficient, the establishment of a guardianship can occur. A guardianship is a relationship established by a Probate Court between the person who needs help – called a ward – and the person or entity named by the court to help the ward. This person or entity is known as a guardian. In Texas, a person does not have a guardian until an application to appoint one is filed with the court, a hearing is held and a judge then appoints a guardian. When the court appointment is made, the person the guardian cares for becomes the ward. There are different types of guardianships available in Texas. They are:
• Guardian of the person, full or limited
• Guardian of the estate, full or limited.
• Guardian of the person and estate.
• Temporary guardianship.
In addition to individuals, entities and guardianship programs can be appointed guardians. Guardians have legal responsibilities and are required to perform certain tasks and make reports to the Court while providing assistance to their wards.
The Probate Court should look at the individuals and programs willing to be guardians and base the appointment of guardians on several factors including: a preference to appointing a qualifying family member or another loved one such as a partner as guardian rather than guardianship programs or court appointed attorneys. The Probate Court also should establish how much freedom a ward may have to make his/her own decisions. The Probate Court should decide limitations on a guardian’s authority.
Finally this particular probate court has a mental health docket that can determine when folks are incapaciated and need hospitalization to protect themselves from harming themselves or the public from possibly being harmed from such an individual.
3. Why are you running for this particular bench?
Civic engagement and community involvement have been an integral part of my public life since college. I see my job as a judge to be the natural progression of my abilities to continue to help the community. I believe in ensuring the law is equitably and honestly applied. I also believe we should seek ways of reducing costs for parties needing to appear before the Probate Court, such as encouraging more mediation. However, a unique aspect of my platform is working to create more community outreach. A Probate Judge should be impartial but not isolated from the community that elects he or she. As a private attorney for more than 40 years I have assisted individuals develop their estate plans utilizing Wills, Trusts, Powers of Attorney and other ancillary documents necessary for a comprehensive estate plan. My platform as a candidate for the probate bench is to expand that activity to include county wide activities. I believe the Probate Court should interact with the community far more than it currently does, with special emphasis on certain issues such as:
1. According to the legal database Lexis Nexis, nearly two thirds of adults in Texas do not have a will. In Texas, this is called dying intestate. Basically, if you do not have a will, then the State Legislature writes one for you. The “legislature-written will” tries its best to effectuate the person’s most-likely intent, but people are inherently different and unique. A common issue is that a person who has a spouse and two children (born to that spouse)would not, under the “legislature-written will,” give their entire estate to the widowed, even though many would-be testators would seek to do this if given a chance. There cannot be an executor if the person dies without a will. The court must appoint an administrator instead, which often requires approval from the court for a plethora of routine acts. This can spend valuable money and time better served going to the deceased’s loved ones.
I want to help the Harris County community write more wills. I think the county and the court system ought to be more active in the community, encouraging folks to write wills and be familiar with the law.
If I could change the law, I would prefer for folks who cannot afford an attorney to be provided one by the Probate Court in order to do things like write wills. But I am running for the Bench, and not the Legislature, so I want to best inform people, if hiring a lawyer is infeasible for any reason, how to take the most advantage of a law.
Texas embraces an old concept called the Holographic Will. This basically means a handwritten will. In Texas, a will written entirely in one’s own handwriting may be admitted to probate even without the byzantine formalities required of type-written wills. This provides a cheaper option for those who may be economically unable to retain an attorney.
I will help the Harris County community learn how to write holographic wills, or formal wills, whichever individuals may prefer, so that their final wishes may be respected easier and cheaper than intestacy.
2. An obstacle that often prevents folks, including those in our community, from seeking justice or remedies via the judiciary is the persistence of rumors, which are often incorrect. There is sometimes misconceptions about what the law says or what is excludes. In seeking out the community, I specifically want to help disprove persistent myths.
For example, Estates Code §201.060 prevents discrimination against heirs or devisees (basically, anyone who stands to receive something through the probate process) based upon their, to use the word in the statute, “alienage.” Since the Constitution of the Republic of Texas, this state has eschewed the old common law rule that allowed for inheritances only to citizens. So whether or not someone is a citizen is immaterial to whether or not they can inherit.
3. Additionally, there is no legal prohibition against writing a will in a foreign language. Wills need not be written in English in order to be admitted to probate.
4. Another issue in the community is that of Medical Powers of Attorney, Durable Powers of Attorney and Advanced Directives (Living Wills). I wish to better inform the community of what these documents mean, how to create them and why most folks should consider using them.
This is another example where I fear rumors can dissuade folks from executing what are otherwise imperative documents. For example, a Medical Power of Attorney or an Advanced Directive does not necessarily mean you are consenting to someone “pulling the plug,” so to speak.
These documents can be as detailed as the person creating them wants them to be. They can retain whatever powers the creator wishes to be retained.
I often say in my practice that there are few things one can really get their way. A significant activity that a person can have their way is in regard to their estate plan and probate matters. These forms do not box the creator into anything but what they choose, and are invaluable for making decisions after one is unable to do so.
5. Another aspect of the Probate Court system is the guardianship process. In Texas, if a person is deemed unable to care for him or herself, often an elderly or disabled person, then a guardian is appointed to care for that person. Most often it is a family member or other close friend, but sometimes, if none are available or the judge thinks such choices are too risky, a guardian ad litem is provided. Such a guardian ad litem is a professional paid for by the estate assets.
There are sometimes horror stories of abuses by such professionals. Fortunately, Harris County has a fairly robust system to clamp down on abuse, and entities such as the Senior Justice Assessment Center (SJAC) has arisen of late to protect such people from abuses, neglect and exploitation. Like other community projects, I believe that the best way to protect against inequities is to be prepared in planning one’s estate. Designating agents in powers of attorney (including a durable or medical one) is one such opportunity.
But the judge has discretion to determine when friends or family are insufficient guardians. I promise to make that determination holistically, looking at not just economic factors but social ones as well, in recognition of what is in the best interest of the family overall.
4. What are your qualifications for this job?
I have practiced law for more than forty years in Harris County, Texas. I have represented thousands of clients in regard to their estate planning and their needs in Probate Court as well as at all levels of civil, corporate, criminal, family, juvenile and appellate courts in Harris County, as well as a multitude of other counties in Texas. My extensive background in family law is a definite asset in probate work since the determining the proper characterization of community versus separate property is essential when dealing with intestate estates and the distribution of such assets to relatives of the deceased individual. The probate court also has concurrent jurisdiction with the Civil Courts involving issues such as wrongful death/personal injuries that can affect a person’s estate or well being. For more than four decades I have represented individuals and families of individuals that have been presented with such terrible circumstances. I have handled all types of probate matters repeatedly for more than 40 years. A successful judge should include the qualities of experience, wisdom, compassion and knowledge. I certainly have the experience and knowledge base from the decades of legal practice. The wide variety of my legal practice has provided me with the wisdom to understand all types of people, recently divorced, accused criminals, business owners, disabled children and elderly parents all among them. All of my experiences provide me with the wisdom, and I believe the compassion, to be a successful judge. As I mentioned above in this questionnaire, the vast majority of work handled by the Probate Court is administrative non-contested matters. It is when a matter is contested, needing a trial that my long experience and acquired knowledge as a trial lawyer become so necessary to be a successful judge.
Additionally, being involved in the community helping to service the needs of those individuals that can be impacted by the Probate Court is a unique qualification for a probate judge. Having and showing compassion is in my opinion is a necessary ingredient for this probate bench. I work with families of disabled children helping those families get legally mandated special needs services from the public school. I have continuously worked as a volunteer at the Harris Center for Disabled Individuals. Recently in 2017 because of my history of working with incapaciated individuals, District Attorney Kim Ogg appointed myself and former Sheriff Adrian Garcia as Co-Chairs of Harris County District Attorney Kim Ogg’s mental health issues in the criminal justice system transition committee. I authored the report on this subject which was presented to District Attorney Ogg.
5. Why is this race important?
The Judge must be very familiar with the law and able to rule on legal matters including the admissibility of evidence and the procedures required to conduct trials and hearings. Uncontested matters will be heard by a judge. Contested matters will be heard by a trier of fact, either the judge alone or by a jury.
If a matter is solely before a judge, the judge is the ultimate decision maker as to the credibility of the evidence presented. In that case no one else has more power than the judge as to the believability of the facts presented. In those instances, the judge is the Supreme Court of the facts and the law of the case since the judge must decide whether testimony is credible. As a judge, that person is an officer and representative of the government. He or she cannot allow personal or religious views to cloud one’s judgment. He or she must uphold the law and apply them to all citizens equally. Having qualified individuals be on the bench in Harris County, Texas is required in order to protect the rights of all individuals that come before the Court. Ideology has no place in our judicial system.
For far too long in Harris County, Texas , Republican judges have imposed their belief systems upon our community that can impact their decisions when on the bench. One need to look no further than the decision of the Republican judges not to marry anyone. That decision is based upon the fact that if a judge agrees to marry a couple, that couple might be a same sex couple and the republican orthodoxy in Harris County does not support same sex marriage. Imagine a same sex couple that have not been formally married and one of those individuals die without a Will. A probate judge without an ideological bent could weigh the evidence fairly in a determination of whether the couple were common law married.
6. Why should people vote for you in the March primary?
Probate Court, as an administrative court, has an unusually high percentage of routine cases that are merely rubberstamped by the court. It is when there is a contest that trial experience becomes so necessary. When I began my legal practice, my primary opponent hadn’t even been born. Experience counts. For forty years, I have represented thousands of clients in estate planning and probate court as well as at all levels of the civil, criminal, family, and juvenile courts in Harris County, Texas, including also a multitude of other jurisdictions in Texas. According to the district and county clerk records of Harris County, my primary opponent has not appeared in any civil cases. Wisdom counts. My sound judgment has been gleaned from over four decades of work providing assistance to individuals and their families through my dedication to quality, my understanding of the foibles of people, and my understanding of the law. Compassion counts. I have the life experiences that have demonstrated my care for the unfortunate, the disabled, and the grieving.