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State Bar of Texas

More on the Woodfill raid

Yeah.

Former Harris County Republican Party Chairman Jared Woodfill is being investigated on theft and money laundering allegations, accused of misappropriating funds of at least two of his law firm’s clients, according to an affidavit by the Harris County District Attorney’s office.

Authorities on Monday seized 127 boxes of files, six computers and disk drives from the Houston high-rise office of the Woodfill Law Firm at Three Riverway, according to the returned search warrant filed in Harris County district court on Tuesday.

In his affidavit for the search warrant, which also targeted computer logins, passwords, memory devices, and telephones owned by Woodfill or the law firm, fraud examiner Bryan Vaclavik indicated authorities were seeking evidence used to commit felony offenses of misapplication of fiduciary property, theft and money laundering.

No charges have been filed against anyone in connection with the ongoing investigation. The Harris County District Attorney’s office declined comment on the investigation.

Investigators seized financial records, legal files, documents and correspondence on Monday related to two divorce cases handled by the firm, the search warrant documents show.

The ongoing investigation has nothing to do with Woodfill’s party activities, his attorney Jimmy Ardoin told the Houston Chronicle Tuesday.

Woodfill was chairman of the county Republican Party for 12 years, before losing the post in 2014.

Ardoin said his client had no advance notice of the search and had no details about the allegations beyond the content of the search warrant.

Ardoin said he had been in contact with the district attorney’s office about its review of finances in a divorce case for three to four months and was dismayed that Woodfill was not allowed to provide information voluntarily.

“We believe there’s an accusation of misappropriation of client funds,” Ardoin said. “We have yet to get confirmation of what it is.”

See here for the background. I’m going to try to not get ahead of the facts, and to wait patiently for things to happen in this case – remember, as the story says, no charges have been filed as yet against anyone. But as I think about who Jared Woodfill is, boy will it be tough to do that.

Police raid Jared Woodfill’s office

Oh, my.

Authorities on Monday raided the law office of former Harris County Republican Party chairman Jared Woodfill.

Investigators with the Harris County District Attorney’s office wheeled carts of documents from Woodfill’s office at 3 Riverway at least an hour after they arrived.

[…]

Woodfill is the subject of two separate formal complaints — one to the State Bar of Texas and the other to the Houston Police Department. In both complaints, Woodfill is accused of taking hundreds of thousands of dollars from clients’ trust accounts.

In the criminal complaint, filed in March 2017, Richard Rodriguez accused Woodfill’s firm of stealing more than $300,000 from a divorce trust account. Rodriguez said Monday he believed the search was related to his complaint.

Oh, my, my.

Documents show Woodfill was reprimanded by the state bar two months ago for failure to take reasonable action in another divorce case.

The state bar, which oversees lawyers, ordered him to take classes in billing, trust accounts or law practice management.

All of that on top of two other civil cases in which opponents recently demanded Woodfill pay hundreds of thousands of dollars in unpaid fees.

It’s too early to say what all this is about. We don’t even know for certain that Woodfill himself is the subject of any investigation. But, um, none of this looks great.

Look for the lawyers

They’ll be helping a lot of people who are going to need Harvey-related legal advice.

While rescue workers, including recreational boaters, pull frightened Houstonians out of flooded homes, lawyers are preparing the establishment of a network to give advice to people with legal issues stemming from the storm that’s dumped dozens of inches of water throughout the nation’s fourth-largest city.

“The goal is to get a bank of volunteers,” said Andrew VanSingel, director of the American Bar Association Young Lawyers Division Disaster Legal Services Program.

Teams of volunteer lawyers will hold clinics at shelters in Texas and throughout South Texas as soon as it is safe to do so, said Saundra Brown, manager of the Disaster Response Unit at Lone Star Legal Aid.

Lawyers will not be able to meet with clients at Lone Star’s main office in downtown Houston because the legal aid agency’s building caught on fire on Aug. 28 following an explosion. Brown said the explosion is still under investigation, but the agency has 14 offices, and others are open.

She said flood victims will want advice on dealing with insurance companies, the Federal Emergency Management Agency and the Small Business Administration. They will also need help dealing with other kinds of legal issues, such as tenant/landlord disputes arising when, for example, a landlord wants to evict a tenant because he needs an apartment for a relative who has been displaced by the floodwaters.

“The need is going to be huge,” said Brown, who had to flee her own house in Southwest Houston, which took on more than five feet of water.

According to information provided by VanSingel, FEMA had received 22,000 registrations as of the morning of Aug. 28 and projections anticipate the number will rise to as many as 400,000. VanSingel said there are more than 2.4 households in the disaster area, which spans 29,408 miles.

Brown said initial intake will go through a hotline operated by the State Bar of Texas, then income-qualified people will be referred to legal aid organizations, and others will be referred to other volunteer lawyer groups, such as the Houston Volunteer Lawyers in Houston. The legal aid organizations are Lone Star, Texas RioGrande Legal Aid and Legal Aid of NorthWest Texas.

The State Bar of Texas legal hotline is (800) 504-7030, and you can find more information about disaster relief legal aid here. You can apply for assistance from the Federal Emergency Management Agency here. Lone Star Legal Aid has already set up at the shelter at the George R. Brown shelter, and they will have more clinics around the state. If you know someone who has legal questions or needs legal assistance due to Harvey, refer them to the hotline, (800) 504-7030. They’ll get the help they need.

State Bar dismisses other complaint against Paxton

No matter what else happens, our ethically challenged Attorney General can say he beat at least one rap against him.

Best mugshot ever

Best mugshot ever

Attorney General Ken Paxton telling county clerks they do not have to issue marriage licenses to same-sex couples is not a sign of “professional misconduct,” according to the State Bar of Texas.

The organization last week dismissed a complaint filed against the embattled top prosecutor by more than 200 Texas attorneys, who argued that he “violated his own official oath of office” by issuing a written opinion stating that clerks and public officials could ignore the U.S. Supreme Court’s ruling legalizing same-sex marriage if it conflicts with their religious beliefs.

In an Aug. 3 notice obtained by The Texas Tribune, the State Bar said, “The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct.”

[…]

Steve Fischer, a former director of the State Bar of Texas and one of the attorneys who filed the complaint, said that while he didn’t get the result he wanted, there is “no further interest to continue the grievance.”

“We sort of made our point that he can’t tell clerks to disobey a Supreme Court’s ruling,” he said. “It’s the law of the land. He’s entitled to his own personal opinion, but he should draw a line.”

See here for the background. This may not have risen to the level of misconduct, but it was hardly exemplary conduct either, especially from the Attorney General. I don’t think a mild slap on the wrist of some kind would have been out of place, but whatever. Everyone who wants to get married in Texas can do so, and the matter hardly raises any eyebrow any more. Whatever happened with this complaint, Paxton lost the real fight, with barely a whimper. I’ll take that.

Meanwhile, in other Paxton-trouble news, the special prosecutors have filed their response to his petition to the Court of Criminal Appeals to have the felony charges against him dismissed.

Defense lawyers raised issues that cannot be appealed before trial or were correctly decided when the Dallas-based 5th Court of Appeals upheld criminal charges accusing Paxton of securities fraud and failing to register with state securities regulators, prosecutors told the Court of Criminal Appeals.

“The Court of Criminal Appeals grants less than 4 percent of all petitions for discretionary review filed by criminal defendants. Our reply makes it clear that Mr. Paxton’s petition is not one of them,” prosecutor Brian Wice said.

The prosecutors also argued that Paxton, who filed his appeal Aug. 1, waited too long to challenge the two felony fraud charges, requiring that portion of his appeal to be automatically dismissed.

You can see the state’s reply here. They rebutted each of the defense’s specific claims in addition to asserting that the defense filing was too late, but the legalese was too thick for me to make it all the way through without my eyes glazing over. Suffice it to say, the prosecution begged to differ.

And finally, Paxton is asking the SEC for more time in his fraud case on their docket.

Contemplating an aggressive round of depositions, Texas Attorney General Ken Paxton has asked for an additional 3½ months to question potential witnesses about allegations that Paxton defrauded investors in private business deals five years ago.

The additional time, if granted by U.S. District Judge Amos Mazzant III, would delay until at least September 2017 a civil trial on fraud allegations made by federal regulators.

In a recent court filing, Paxton’s lawyers told the judge they will need more time to question as many as 46 potential witnesses, including state Rep. Byron Cook, R-Corsicana, and his wife, Kay.

[…]

Another reason to grant a delay, lawyers told Mazzant, is that Paxton could face a criminal trial as early as spring 2017 on state felony fraud charges related to his actions on behalf of Servergy.

“Mr. Paxton respectfully submits that, as a matter of fairness, the trial of his criminal matter should occur prior to the trial of this matter,” his lawyers said.

Paxton’s lawyers also informed Mazzant that they are not interested in reaching an out-of-court settlement with the SEC. Neither side has requested or made a settlement offer, they added.

SEC lawyers told Mazzant they expect to finish their depositions — which would include questioning Paxton and his wife, Angela — by Feb. 6. Paxton’s lawyers pressed for a May 26 deadline on depositions.

See here and here for the background. Paxton has also filed a motion to dismiss the SEC charges against him, which still awaits the judge’s ruling. You have to admit, defending himself from a myriad of charges relating to his bad behavior is a full-time job, so Paxton has a compelling case for delay here. We’ll see if the judge grants it.

How you can help or get help in Houston

Via email from State Rep. Gene Wu:

I hope this email finds you safe after yesterday’s flooding. While we are seeing most of the high water receding from our neighborhoods, there is still a good deal of cleanup work to do today. Please stay safe as we anticipate even more rain throughout the day.

For those of you able to help your fellow Houstonians, you are always encouraged to donate to the Red Cross.

The Red Cross is also seeking volunteers who are available to commit 6-8 hours to assist at Houston-area shelters. There are different roles volunteers can play during a shelter operation:

  • provide immediate emergency services to individuals and families
  • greet families and provide comfort as they arrive.
  • provide meals, comfort kits, etc.
  • help oversee shelter operations.
  • entertain families.
  • assist in overnight security.

Other volunteer opportunities are available as well. To volunteer, contact the Red Cross at 713.313.5491.

Shelters in the Greater Houston area are located at:

Shelter                         Address
----------------------------------------------------
Chinese Community Center        9800 Town Park Drive
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Johnston Middle School          10410 Manhattan Dr.
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Willow Meadows Baptist Church   4300 W Bellfort Blvd
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MO Campbell Education Center    1865 Aldine Bender
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Jersey Village Baptist Church   16518 Jersey Drive (Jersey Village)
----------------------------------------------------
South County Community Ctr      2235 Lake Robbins Rd. (Spring)
----------------------------------------------------
Pine Island Baptist Church      36573 Brumlow Road (Hempstead)
----------------------------------------------------
Knights of Columbus Hall        1390 Highway 90 W (Sealy)
----------------------------------------------------
First United Methodist Church   4308 W. Davis Street (Conroe)
----------------------------------------------------
Royal High School               2550 Durkin Road (Pattison)
----------------------------------------------------
East Montgomery County          21679 McClesky (New Caney)
Community Center
----------------------------------------------------

As a reminder, here are some helpful links and phone numbers in case they are needed:

 

Thanks and stay safe!

From Sen. Rodney Ellis:

As our community continues to deal with flooding, please keep in mind these important tips to stay safe:
  1. Follow evacuation orders and do not attempt to return until officials say it is safe to do so.
  2. Head for higher ground and stay there.
  3. Stay away from floodwaters. If you come upon a flowing stream where water is above your ankles, stop, turn around and go another way.
  4. Turn around, don’t drown. If driving, turn around and go another way. If you are caught on a flooded road and waters are rising rapidly around you, get out of the car quickly and move to higher ground. Most cars can be swept away by less than two feet of moving water.
  5. Keep children out of the water.
  6. Be especially cautious at night when it’s harder to see flood danger.
Area services
These services will help you as you begin to recover from the flood’s impact.
  1. Report flooding: the City of Houston Office of Emergency Management is asking any residents who experienced flooding inside their home or business to report it to the Houston 311 Help & Information Line by calling 311 orsubmitting the report online here.
  2. Legal assistance: the State Bar of Texas offers a legal hotline to help connect people with legal aid providers following disasters: 1-800-504-7030. Additional resources are available at texasbar.com/disasters and texaslawhelp.org.
  3. Abandoned car: if your car was towed during the flood, call 713-308-8580 or visit findmytowedcar.com to determine where it is currently located.
  4. No power or downed power lines: please report a power outage or downed power lines to CenterPoint Energy at 713-207-2222.
  5. Food: if you need food or water, please contact the Houston Food Bank at 832-369-9390.
  6. Free storage: U-Haul is offering 30 days of free storage and U-Box container usage to flood victims. Call one of the Houston offices for more details: U-Haul of East Houston 281-377-3380; U-Haul of West Houston 281-495-6683; U-Haul of Gulf Coast Texas 713-750-7701; U-Haul Storage Centers of Houston 281-531-4022

And from CM Greg Travis:

1. Report Flooding to 311:
Please report all flooding to 311. As you have no doubt heard, the ReBuild Houston program is “worst first,” meaning the areas with the greatest flooding will receive reconstruction prior to areas with less severe flooding. Self-reported 311 information is the main data point going into the SWEET (Storm Water Enhanced Evaluation Technique), which aids in prioritizing drainage projects. It is vitally important that everyone who experienced structural flooding (flooding inside their home or business) report it to 311.
There are four ways to make reports to 311:
Phone: 713-837-0311 (or 3-1-1)
Smartphone: download the mobile app from the site above (or from the Apple App site or the Google Play site) and use it to report matters directly to the City of Houston
If you are reporting flooding online please select “Traffic, Streets, and Drainage,” then select “Report Flooding” from the “Maintenance & Repairs” menu. If you experienced flooding on a prior date you did not report (for instance, May 2015 or October 2015), you may also use this same process to report the prior flooding event.
If you have pictures of the flooding you wish to submit, you may report flooding by email and attach pictures, or once you have received the service request number for your report, you may email 311 the number with your pictures and ask to have the pictures attached to your flooding report.
2. Flood Recovery Information:
For flood recovery information, please visit http://www.houstonemergency.org/go/doc/2263/2620898
Currently, this site only has flood recovery information from May 2015 and October 2015, but the city is in the process of updating the information. This site will contain information about flood mitigation assistance, hazard mitigation grants, repairing flood damage if you live in a floodplain, making a flood insurance claim, and other important information to get you and your family back on your feet.
3. City of Houston Trash Pick-Up:
There was no City of Houston trash pick-up yesterday due to the floods. For information regarding the pick-up schedule for the rest of the week, please visit http://www.houstontx.gov/solidwaste/press-04182016.html
If you have questions about City of Houston trash pick-up, please contact one of the following Solid Waste Department representatives during normal business hours:
Irma Reyes
Tyra Wilkins
4. Information Regarding Late Filing of Your Federal Income Tax Return:
Yesterday was the deadline to file your federal income tax return. If you were not able to file due to flooding, and you did not timely request an extension, you will find information to assist you here: https://www.irs.gov/uac/Newsroom/Houston-Area-Taxpayers-Affected-by-Severe-Weather-May-Qualify-for-Relief-from-Penalties-on-Late-Tax-Returns
5. Find your Towed Vehicle:
If you were forced to abandon your vehicle on a public roadway and it was towed, you will find information regarding the location of your towed vehicle here: http://findmytowedcar.com/tvrmscitizen/mainpage.aspx
6. Utility Outages:
CenterPoint Energy crews have been working since the storm began Sunday night to restore service to affected customers. Overall, an estimated 170,000 customers have been impacted with a peak of approximately 120,000. The most heavily impacted areas are Cypress, Greenspoint, Humble and Spring Branch. As of 2:30 p.m. yesterday, approximately 45,000 customers remain without power. CenterPoint will be bringing an additional 30 crews from neighboring utilities and their contractors to assist in the most heavily impacted areas.

CenterPoint crews are having difficulty making it through floodwaters, which is slowing power restoration efforts. Customers should be prepared for extended outages, particularly in some of the harder-hit areas. Estimates of when power will be restored will also be delayed.

Safety is CenterPoint Energy’s No. 1 priority, and the company has provided these important electric and natural gas safety tips:
Electric:
  • Stay away from downed power lines. Be especially mindful of downed lines that could be hidden in floodwaters, and treat all downed lines as if they are energized.
  •  If you experience flooding and water has risen above the electrical outlets in your home, contact a licensed electrician before turning on the main circuit breaker or trying to restore power.
  •  All electrical appliances and electronic equipment that have been submerged in water need to dry thoroughly for at least one week. Then, have them checked by a qualified repair person before turning them on. Attempting to repair a flood-damaged appliance could result in electrical shock or death. Attempting to restart it could result in further damage and costly repairs.
  •  If the outside unit of an air conditioning system has been under water, mud and water may have accumulated in the controls. Have the unit checked by a qualified air conditioning technician.
  Natural Gas:
  • Do not turn off your natural gas service at the meter; doing so could allow water to enter the natural gas lines.
  •  Be alert for the smell of natural gas. If you smell gas, leave the area immediately and tell others to leave, too.
  •  If you smell gas, do not turn the lights on or off, smoke, strike a match, use a cell phone or operate anything that might cause a spark, including a flashlight or a generator.
  • Do not attempt to turn natural gas valves on or off. Once safely away from the area, call 888-876-5786, and CenterPoint Energy will send a trained service technician.
  • If your home was flooded, call a licensed plumber or gas appliance technician to inspect your appliances and gas piping to make sure they are in good operating condition before calling CenterPoint Energy to reconnect service. This includes outdoor gas appliances including pool heaters, gas grills and gas lights.
  • Before conducting debris cleanup, or to locate underground natural gas lines and other underground utility lines before digging on property, call 811 – the nationwide Call Before You Dig number.
  • Be aware of where your natural gas meter is located. As debris is put out for heavy trash pickup, make sure it is placed away from the meter. In many areas the meter may be near the curb. If debris is near a gas meter, the mechanized equipment used by trash collectors could pull up the meter, damaging it and causing a potentially hazardous situation. If this happens, leave the area immediately and call CenterPoint Energy at 888-876-5786.
 For the latest information on power outages:
The District G office will provide additional information as it becomes available.  Above all, please stay safe.

See here and here for more from the Red Cross. There’s a reason why I don’t unsubscribe to the zillions of email lists I manage to get onto. Times of crisis are always good times to give blood as well – go to the Gulf Coast Regional Blood Center to arrange for a donation. Remember that the general rule is that it’s better to give money to a charitable organization than stuff unless they are specifically asking for stuff. Don’t buy canned goods and bring them to the food bank. They can get those canned good more cheaply than you, so give them the money you would have spent.

HISD schools were closed yesterday but at last report were to be open today, while city and county offices reopened and Metro resumed service yesterday. Some other school districts remain closed. There’s still rain in the forecast through tomorrow though nothing like Monday, so there’s still a risk of flooding. Hopefully that won’t happen, but be prepared and stay off the roads as much as possible.

One State Bar complaint against Paxton dismissed

A little bit of good news for our embattled AG, but not much.

The State Bar of Texas has dismissed one of two pending complaints against Attorney General Ken Paxton.

The dismissed complaint, filed in February by attorney and blogger Ty Clevenger, requested that the bar investigate and penalize Paxton for his failure to register as a financial adviser while steering business to a friend’s investment firm.

[…]

In a letter explaining the move, Assistant Disciplinary Counsel Rita Uribe said the bar dismissed the complaint because “it is the subject of a pending criminal complaint.” If Paxton is convicted, she added, he will be “subject to compulsory discipline.”

Here’s Clevenger explaining why that is unsatisfactory to him.

Best mugshot ever

Best mugshot ever

As I explained in my February 11, 2016 blog post, my grievance against Mr. Paxton had far less to do with Mr. Paxton than the state bar itself.  Time and again, I’ve watched the state bar protect politically-connected attorneys, some of whom have committed serious crimes. And now the practice continues.

According to a March 9, 2016 letter from OCDC, my grievance was dismissed because the allegations are “the subject of a pending criminal case against [Mr. Paxton].”  But as I noted in the appeal that I filed this morning, nothing in the disciplinary rules prevents OCDC from prosecuting attorney misconduct charges concurrently with criminal charges.

On the contrary, “[t]he processing of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary Action is not, except for good cause, to be delayed or abated because of substantial similarity to the material allegations in pending civil or criminal litigation.” Texas Rule of Disciplinary Procedure 15.02. Granted, a delay or abatement differs from an outright dismissal, but the spirit of the rule certainly implies that OCDC should not dismiss a case simply because a related criminal case is pending. In fact, the OCDC prosecuted my grievance against former Robertson County District Attorney John Paschall concurrently with the overlapping criminal charge.

Under normal circumstances, however, the OCDC will not prosecute a politically-prominent attorney. In this case, the OCDC dismissed a grievance filed by Erica Gammill against Mr. Paxton in 2014 because that grievance supposedly failed to state a disciplinary violation (even though Mr. Paxton had already admitted his guilt in writing and under oath).  After Mr. Paxton got indicted for the very same allegation, I re-filed Ms. Gammill’s grievance along with a copy of the indictment.

And now the OCDC refuses to investigate because a criminal case is pending, which makes this a classic Catch 22.  If you file a grievance against a politician lawyer before he gets indicted, the state bar will dismiss the grievance — no matter how damning the evidence — on the grounds that you failed to state a violation. But if you file the grievance after he gets indicted, then the state bar will dismiss your grievance because a criminal case is pending.  Is it any wonder that my profession has such a miserable reputation?

There are good reasons for prosecuting the cases concurrently. First, the burden of proof differs between a disciplinary charge and a criminal charge. If the special prosecutors fail to prove Mr. Paxton’s guilt beyond a reasonable doubt, the OCDC might nonetheless prove him culpable on the preponderance of the evidence. Second, the four-year limitations period for a disciplinary charge will expire this summer, i.e., before Mr. Paxton’s criminal case goes to trial.  Maybe the Board of Disciplinary Appeals will do the right thing and reverse the OCDC, but the board sided with the OCDC the first time it buried this case.

I’d be very curious to hear what the attorneys who read my blog think about this. In the meantime, there is another complaint pending against Paxton, having to do with his bogus “advice” to County Clerks on how to evade the Supreme Court ruling on same-sex marriage. That one isn’t tied to an indictment, and the Board of Disciplinary Appeals reinstated it after an initial dismissal. So maybe one way or another the State Bar will have to take action.

Sebesta remains disbarred

Good.

Anthony Graves

The disciplinary board of the Texas State Bar on Monday affirmed the agency’s decision to disbar Charles Sebesta, the former prosecutor who oversaw the wrongful death sentence of Anthony Graves.

Graves, who spent 18 years in prison, including 12 on death row, for a fiery multiple murder he did not commit, filed a complaint against Sebesta in January 2014. He asked the Bar to hold Sebesta accountable for withholding critical evidence of his innocence.

“The bar stepped in to say that’s not the way our criminal justice system should work,” Graves said. “This is a good day for justice.”

[…]

In their ruling on the Sebesta’s disbarrment Monday, the disciplinary board called his conduct in the Graves case “egregious.”

The board’s decision on Sebesta’s appeal is final.

See here for the background. At the time of the appeal, Sebesta’s attorney said the board’s decision would be final, which I take to mean he won’t try to find some other avenue to keep fighting this, like a lawsuit or something. I hope that’s the case, and I hope this will finally force the man to come to terms with his actions, and to try to make amends while he still can. I don’t expect that he will, but I hope that he will. If not, he will forever serve as a bad example.

Paxton finds another way to be in trouble

Like fleas to a dog, trouble just follows this guy around.

Best mugshot ever

Best mugshot ever

Remember that historic Supreme Court ruling last year? The one that ended decades of discrimination against same-sex couples who wanted to get married?

Texas Attorney General Ken Paxton surely does because it’s probably still causing him headaches, in addition to his legal woes. The Lone Star State’s top lawman is accused of securities fraud.

We just learned that on January 29, the Board of Disciplinary Appeals, appointed by Texas’ Supreme Court, decided not to dismiss a grievance against Paxton filed with the State Bar Chief Disciplinary Counsel for an alleged violation of the Texas Disciplinary Rule of Professional Conduct, which means the Texas State Bar has been ordered to continue a disciplinary investigation into the alleged violation.

That whole defying the Supreme Court thing is good for television spots, but, not so good in reality.

You can see a copy of the complaint embedded in the story. Amazing, right? I looked in my archives and found that somehow, this had fallen entirely below my radar – I have no posts that mention this, as far as I can tell. So off to Google we go, and our first stop to get up to speed is this Trib story from July 3.

Roughly 150 Texas attorneys have signed on to a letter threatening to file a complaint with the State Bar of Texas against Attorney General Ken Paxton for his response to the U.S. Supreme Court’s ruling on same-sex marriage.

“It seems to us that your edict to encourage Texas clerks to violate a direct ruling of the United States Supreme Court violates” the State Bar’s rules requiring attorneys to uphold the U.S. Constitution, the letter states.

After the Supreme Court legalized gay marriage nationwide, Paxton issued an opinion telling Texas clerks they did not have to issue marriage licenses to same-sex couples if it violated their religious beliefs — though he suggested that they could face litigation.

On Friday, Paxton spokeswoman Cynthia Meyer said the attorney general’s legal opinion was “a nonbinding interpretation of the law,” one that “emphasizes the importance of protecting religious liberty while enforcing the Supreme Court’s expanded definition of marriage.”

If Paxton doesn’t change his direction to county clerks in the coming weeks, Steve Fischer, a former director of the State Bar of Texas, said he plans to file a complaint he anticipates hundreds of other lawyers will sign onto.

“I think he could very easily be disbarred,” said Fischer, who wrote the letter sent to Paxton’s office Friday. “He violated his oath to specifically uphold the United States Constitution.”

Note the reference at the end of this story to a complaint that had already been filed by then by former State Rep. Glen Maxey. This Courthouse News story covers that.

Glen Maxey, a member of the Texas Democratic Party executive committee and the state’s first openly gay legislator, filed a grievance with the State Bar of Texas on June 30.

It came two days after Paxton issued a nonbinding advisory opinion urging county officials not to issue the licenses if they have personal religious objections, but warned that if they did so they would probably be sued.

Paxton’s letter came after the Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 that struck down several states’ same-sex marriage bans.

Maxey said it is “irresponsible” for an elected official and attorney to tell other elected officials to break the law.

“He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples,” Maxey said in a July 3 statement. “This past Friday, the Supreme Court was clear with their decision to let same-sex couples marry. Paxton took an oath to defend and protect the Constitution. He must comply with the court’s decision.”

You can find a copy of Maxey’s complaint here. The grievance for which all those attorneys’ signatures were collected, which is the one referenced in the first link above, was eventually filed later in July. (The Trib, my usual source for this kind of political esoterica, oddly had the story about the complaint being filed in their subscription-only Texas Weekly section.) Why the wait? Steve Fischer, the former State Bar director, explains his reasoning.

Maxey, however, is not a lawyer and didn’t allow Paxton the 25-day implementation period, as provided by U.S. Supreme Court Rule 45 and in the 5th Circuit Court of Appeals mandate, which specified a July 17 compliance deadline.

Attempting to steer clear of politics, Fort Worth lawyer Brian Bouffard and I sent a warning to the attorney general that he must comply with the law. We posted on Facebook that we would collect attorney signatures, but quit after receiving about 300 in two days. If a grievance becomes necessary, we will have many more.

We allege the Texas attorney general has violated several of the State Bar Disciplinary Rules, most of which are found in Section 8.04 a (4) obstruction of justice, and 8.04 (a) 12 that he has violated his attorney oath to uphold the law of the United States. As the state’s top legal officer, he can’t be offering county clerks any legal ammunition to circumvent the law when it’s clear, to most legal analysts, they would be “shooting blanks.”

The State Bar of Texas, the licensing authority for all Texas lawyers, is 100 percent nonpartisan. When a complaint is filed it goes to State Bar disciplinary counsel and if they find grounds, Paxton would be required to file an answer. If his answer is insufficient, he would be given the choice of appearing before a grievance panel of a few lawyers and perhaps one nonlawyer or having his case heard in district court.

The penalties range from a reprimand to license suspension, and in the most egregious cases, disbarment. Usually, these cases are private and confidential; however, the bar has made an exception for public interest cases.

Many believe the State Bar does not go after its own, and it is accurate to say most complaints against lawyers are dismissed. The reason, however, is that the vast majority of filings are rancorous, rambling rants that do not allege a specific violation.

We hoped Paxton would take a deep breath and proclaim that although the Supreme Court decision violated his personal and religious beliefs, he would follow the law.

We know how that turned out. Which brings us back to today. Towleroad has an excerpt from the Board of Disciplinary Appeals’ ruling.

On January 29, 2016, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas considered the appeal from the dismissal from the above grievance by the Office of the Chief Disciplinary counsel of the State Bar of Texas. After reviewing the grievance as filed with the sState Bar Chief Disciplinary Counsel’s office and no other information, the Board grants the appeal, finding that the grievance alleges a possible violation of Texas Disciplinary Rule of Professional Conduct 1.02(c).

The Board of Disciplinary Appeals will now return the case to the Office of the Chief Disciplinary Counsel for investigation and a determination whether there is just cause to believe that the attorney has committed professional misconduct. The Office of the Chief Disciplinary Counsel will notify both parties of each step of the process, including asking the attorney to respond to the complaint. For information concerning the handling of the case from this point forward, please contact the Austin Office of Chief Disciplinary Counsel.

And here’s the Trib story, and the Chron story, which recap everything we’ve discussed here in a much more concise fashion. The one bit of information mentioned in the Trib piece that I haven’t covered here is that the complaint was initially dismissed by the Chief Disciplinary Counsel’s office; it was the appeal to the Board of Disciplinary Appeals that brought us to this point. I can hardly wait to see what comes next. Trail Blazers and Daily Kos have more.

Sebesta appeals disbarment

This saga that I thought was over still has another chapter in it.

Anthony Graves

Lawyers for Charles Sebesta, the ex-prosecutor who secured the wrongful death sentence of Anthony Graves, told a panel of the State Bar of Texas on Friday that he should not be disbarred based on technicalities in the rules that govern lawyer discipline.

[…]

Jane Webre, who was defending Sebesta before the disciplinary board, argued that bar rules prevent the board from making a different ruling on Graves’ recent complaint after it already determined the former prosecutor wasn’t subject to disbarment for his role in that conviction.

“In order for the system to function properly, it’s important that the bar apply the rules fairly and consistently,” Webre told the Texas State Bar Board of Disciplinary Appeals.

Sebesta argued that the bar dismissed the previous complaint not only because of the time bar but also because they found no merit in the accusations against him.

Cynthia Hamilton, senior appellate lawyer for the commission for lawyer discipline at the State Bar, told the panel that Sebesta’s disbarment should remain in effect. In dismissing the previous claim, she said, the Bar did not address the merits of the claims of misconduct, only the statute of limitations, which lawmakers have since extended.

“It was Mr. Sebesta’s own flawed analysis of the definition of just cause that led him to that conclusion,” Hamilton said.

Additionally, she said, if the disciplinary rules were applied as Sebesta contends they should be, lawyers would not face discipline in instances where additional evidence of serious wrongdoing came to light after an initial complaint was dismissed. That would give lawyers – who are not required to cooperate with bar investigators – an incentive to conceal information, she said.

Further, she argued, lawmakers changed the statute of limitations governing prosecutor discipline in 2013 specifically to allow the kind of sanction Sebesta is facing.

“The Legislature gave the [chief disciplinary counsel] its marching orders,” Hamilton said.

See here for the background. I love how guys like Sebesta always reach for the technicalities when the spotlight turns to their own behavior. I’m sure he was ever so solicitous of those finer points of law when he was DA. Be that as it may, he is entitled to a review, and if his argument is deemed valid, then so be it. I personally think Ms. Hamilton has by far the stronger case, and I hope the State Bar sees it that way as well. I agree completely with what Anthony Graves says:

Graves said he said he is confident the panel will uphold Sebesta’s disbarment. And their decision, he said, will have consequences for prosecutors statewide.

“If they uphold the ruling, it says we’re not going to allow prosecutors to just do what they want in the courtroom and not be held accountable,” Graves said. “If they reinstate him, it says to the public that we really don’t care about you, we just protect our own.”

Amen. I don’t know when the State Bar will rule on this, but I hope they get it right.

Paxton takes the culture-warrior lead

Well, at least he’s found his calling in life.

Ken Paxton

In the six months before Ken Paxton won election as Texas attorney general last fall, he stayed largely out of sight. Under an ethical cloud amid claims of financial fraud, he avoided public events and rarely spoke to reporters, coasting to victory as part of new Republican leadership including Gov. Greg Abbott and Lt. Gov. Dan Patrick.

Lacking Patrick’s knack for political theater, and yet to display the lawyerly intellect of Abbott, his predecessor as the state’s top attorney, the 52-year-old former legislator struggled to emerge from their shadows during his first several months in office.

But now, even as his personal legal troubles resurface, Paxton is poised to claim his place in the sun as the state’s top culture warrior.

Two days after the U.S. Supreme Court struck down Texas’ long-standing same-sex marriage ban, Paxton issued an opinion telling county clerks with religious objections that pro bono lawyers were standing by to help defend them against legal challenges if they denied licenses to same-sex couples.

“Our religious liberties find protection in state and federal constitutions and statutes,” he said. “While they are indisputably our first freedom, we should not let them be our last.”

The missive launched him into the national consciousness, earning comparisons to George Wallace, the former Alabama governor who fought desperately to preserve racial segregation in the 1960s. Blasting Paxton for encouraging state officials to violate the law, a Democratic lawmaker has since asked the U.S. Justice Department to monitor the implementation of the Supreme Court’s decision.

The nonbinding opinion amounted to more of a statement of moral support than legal defiance. But to social conservatives — some beginning to feel abandoned by a governor who has declined their requests to call a special legislative session to address the issue of same-sex marriage — it bolstered the McKinney Republican’s standing as one of the last guardians of religious liberty.

“Texas often tries to bill itself as the most conservative state in the union, which isn’t very often the case actually. We have a reputation that we don’t live up to. But I think that Ken Paxton is living up to it,” said Julie McCarty, president of the NE Tarrant Tea Party, which wields considerable influence in Republican primaries. “I haven’t heard anything from our governor, which is not surprising, but again disappointing.”

Even Patrick, who came to power with the backing of the conservative movement, has not avoided the perception that he failed to do enough as the Senate’s presiding officer to protect traditional marriage this session.

“There’s a lot of other things that should have been passed, that the rest of the Republican leadership caved into the homosexual demands — that would be Abbott and Patrick and [Speaker] Straus,” said Steve Hotze, a Houston doctor who operates the powerful Conservative Republicans of Texas political action committee.

Paxton’s office was “very instrumental” in pushing lawmakers to pass legislation affirming religious officials’ rights to refuse to perform same-sex marriages known as the Pastor Protection Act, said Hotze, whose group distributes mailers and scorecards to a vast network of GOP voters.

“Most people don’t understand, but Ken Paxton does understand the direction of this movement, and he is speaking out,” he said. “Abbott has been AWOL on the issue.”

[…]

Based on the questions about Paxton’s ethical compass, former Railroad Commissioner Barry Smitherman, the candidate who came in third in the primary, later endorsed Paxton opponent Dan Branch in the runoff.

But concerns about Paxton’s business matters did not dissuade conservatives in 2014, and don’t seem to have gained traction among them recently.

McCarty said Thursday she was not aware that Paxton could face a felony charge, but said it did not affect her support for him.

“This is how politics goes. People are always pressing charges and making frivolous suits just to smear someone’s name,” she said. “The general public doesn’t follow it closely enough to know when everything’s been cleared and that it was all trumped up for nothing. Until we have a conclusion, I would definitely side with Paxton and give him the benefit of the doubt because I just know that’s how these games are played.”

So this is where we stand. And just to add a little gasoline to the fire, there’s this:

As if Attorney General Ken Paxton didn’t have enough troubles with a potential felony indictment, now he’ll be fighting off an ethics complaint over his opinion on same-sex marriage.

[…]

Now long-time Travis County Democratic mainstay Glen Maxey has savaged that opinion as nothing more than political cant, and filed a complaint with the Texas State Bar Association against Paxton. In it, the Texas Democratic Party county affairs director alleges multiple violations by Paxton of the Texas Disciplinary Rules of Professional Conduct, including that Paxton made a false statement of law that is “flatly inconsistent with the United States Constitution”, as well as violating the statutes defining his official duties, the oath of office as attorney general, and the terms of his license to practice law in the state of Texas.

In a statement Maxey, who was Texas’ first openly gay state representative, writes, ““It’s irresponsible for an elected official – and a lawyer – to tell other elected officials to break the law. He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples.”

You can see a copy of the complaint here. It’s not the first time someone has complained to the State Bar about Paxton. I’m not a lawyer and will pass on evaluating the merits of Maxey’s complaint. If that’s in your wheelhouse, by all means please chime in.

As for the larger issue with Paxton, all this raises the stakes on the grand jury/special prosecutor investigation against him. He can complain all he wants about being made a target, but he’s not being tried in Travis County and may have a hard time making that charge sound believable to anyone outside of Ms. McCarty’s circle. If he gets no-billed or manages to beat the charges one way or another, he’ll be in a very strong position politically. If he goes down, there could be collateral damage. At some point, Abbott and Patrick and the rest are going to have to decide if they want to stand by Ken Paxton or let him sink or swim on his own. I imagine there have been a few very off the record back-room discussions about how to play things if it all goes to hell for the state Republican brand. Trail Blazers and the Trib have more.

Sebesta disbarred

A fitting end to this story.

Anthony Graves

The former prosecutor who won a wrongful conviction of Anthony Graves for capital murder, sending him to Texas death row where he was nearly executed twice, has been disbarred.

In a ruling released Thursday, the State Bar of Texas found that Charles Sebesta committed “professional misconduct” as Burleson County District Attorney when he prosecuted Graves in 1994 for a family’s murder. Graves’ co-defendant, Robert Carter, who was executed in 2000, admitted he was the lone killer.

The bar complaint against Sebesta was filed by Graves, who was freed in 2010 after serving 18 years in prison, 16 of them on death row. Graves said his complaint was “nothing personal,” but an attempt to correct the criminal justice system.

“That ruling is more for the system than it is about me,” Graves told The Texas Tribune. “It’s about holding everyone responsible, and this is all part of it.”

The bar’s disciplinary panel found several prosecutorial mistakes by Sebesta. Even though Carter denied Graves’ involvement when he testified before a grand jury, Sebesta did not correct Carter’s false testimony against Graves at Graves’ trial.

Also during the trial, Sebesta told the court that an alibi witness about to testify on Graves’ behalf was a suspect in the same murders. She was not. But after the courtroom statement by Sebesta was made, the witness, Graves’ girlfriend at the time, Yolanda Mathis, refused to testify.

“Sebesta had no evidence or information tending to show Yolanda Mathis was suspect or had any involvement in the murders,” the bar’s disciplinary panel found.

See here and here for the background, and here for a copy of the ruling. This action is entirely appropriate, and I only wish it could have happened sooner. Prosecutors who lie, cheat, and flout the rules of justice need to be held accountable for their actions. Anthony Graves is right, it’s not about him, it’s about making justice more fair for everyone. We’re a little bit closer to that now. The Chron has more.

UPDATE: Here’s Pamela Coloff‘s take.

State Bar accuses Willingham prosecutor of misconduct

Wow.

In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

The bar action was filed Mar. 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro county seat.

Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery Webb was accused of committing but promising to reduce his sentence if he testified against Willingham.

Jackson has repeatedly denied that he made any pre-trial agreement with Webb in exchange for his testimony. The former prosecutor acknowledged that he and others made extraordinary efforts to help Webb, but said they were motivated only by concern for a witness who had been threatened by other prisoners because of his testimony.

A lawyer for Jackson, Joseph E. Byrne, on Wednesday urged that people withhold judgment about the case until all the evidence was presented and took issue with the grievance filed against his client by the Innocence Project, a legal advocacy group.

“I disagree with much of the information that was put together by the Innocence Project and do not find it to be objective,” Byrne said.

[…]

Told of the state bar’s action, Willingham’s stepmother, Eugenia, said, “John Jackson committed a crime, and I want him punished. If the appeals court had known the truth, Todd would probably be alive today.”

A staff attorney for the Innocence Project, Bryce Benjet, said the group was encouraged by the bar’s disciplinary action. “Withholding exculpatory evidence and the presentation of false testimony in a death penalty case is quite possibly the most serious ethical breach for a lawyer you can imagine,” he said.

The disciplinary petition contends that “Jackson failed to make timely disclosure to the defense details for favorable treatment for Webb, an inmate, in exchange for Webb’s testimony at trial for the state.”

“During a pre-trial hearing on July 24, 1992, (Jackson) told the trial court that he had no evidence favorable to Willingham,” the complaint continues. “That statement was false.”

The Marshall Project disclosed earlier this month the existence of a letter sent by Webb to Jackson in 1996 asking Jackson to comply with what he called their “agreement” to reduce his judgment from aggravated robbery to robbery. Within a few weeks, Jackson obtained a court order that reduced the charge.

The grievance that led to this charge was filed last year after the evidence from Webb about his testimony being coerced first came to light. The Trib had a story last week that reviewed all this and that indicated that the charges against Jackson were coming. Go read that to get up to speed if you need to. As I said when this grievance was filed, we have started to see some rogue prosecutors be held accountable for their illegal actions. It would be a small but fitting piece of justice if John Jackson were to be held accountable for his. The Chron has more.

Reynolds’ convictions overturned

My head is spinning.

Rep. Ron Reynolds

State Rep. Ron Reynolds, D-Missouri City, will be back in a Montgomery County courtroom a week before the 2015 legislative session gets underway. The legislator, who just won his third term in office, is facing a new trial related to allegations of “ambulance chasing.”

On Monday, a judge declared a mistrial in the latest case against Reynolds, who was found guilty Friday of six misdemeanor counts of solicitation of professional employment.

Steve Jackson, one of Reynolds’ defense attorneys, said state district Judge Lisa Michalk granted a request for the mistrial because of a “juror experiencing what she said was outside influence that affected her saying ‘guilty.'”

Reynolds, a Houston-area personal injury attorney, was facing 10 felony counts of barratry. He is accused of illegally offering legal services to accident victims within 30 days of their incidents.

Reynolds has denied any wrongdoing, saying that the case against him has been a miscarriage of justice and that the charges were “selective prosecution by a very conservative delegation” in Montgomery County. “The only thing they wanted was me to do was resign my seat,” Reynolds said Monday in an interview.

Kelly Blackburn, the assistant Montgomery County district attorney trying Reynolds’ case, confirmed the mistrial and said that a new trial had been set for Jan. 5. He said the judge declared a mistrial based on a juror stating that the verdict was influenced by fellow jurors talking about “outside information” during deliberations. “All other 11 jurors denied this and stated that they reached their verdict based on the evidence that was submitted during the trial,” Blackburn said.

He said that his team is working to determine if it can legally retry Reynolds on felony barratry charges.

See here for the background. The Chron fills in some details.

Michalk declared a mistrial after the jury’s only African-American member, identified only as juror No. 2, told a bailiff that before the verdict was reached, another juror told her about plea deals accepted by five other Houston-area attorneys arrested in the same sting operation.

Juror No. 2 told Michalk that this information had influenced her decision, but she was unable to identify the juror who told her about the pleas.

Some of the 11 remaining jurors said they, too, had heard the remark about the plea deals, but not until after the verdict was rendered and before testimony was heard in the punishment phase. Reynolds faced a maximum penalty of a year in prison and a $4,000 fine for his misdemeanor convictions.

[…]

Prosecutors contend the mistrial may open Reynolds to a possible felony conviction on the barratry charge again.

“We will all be researching it,” said Montgomery County Assistant District Attorney Phil Grant.

Kelly Blackburn, the lead prosecutor, called the mistrial an “unfortunate incident,” stressing that it had “nothing to do with the actual facts in the case.”

Geoff Corn, a law professor at the South Texas College of Law, said it was unusual to declare a mistrial after a verdict was reached.

Since a jury found Reynolds guilty of the misdemeanor, the jury had found that he was not guilty of felony barratry, Corn said.

“The prosecution had their chance,” he said, but didn’t meet the burden of proof required to convict.

“It’s going to be an interesting battle,” he said. “One of the things that most lawyers will tell you about double jeopardy is it’s so convoluted, you never know for sure.”

Years of watching Law & Order has not adequately prepared me for this. I wonder if there’s any precedent for the double jeopardy question. In any event, even if Rep. Reynolds avoids a redo on the felony charges, he’s still got more trouble than just the misdemeanors.

The State Bar of Texas’ civil case against Reynolds, alleging professional misconduct in connection to the barratry scheme, is set for trial to start on Dec. 15. A ruling against him could lead to his disbarment.

My suggestion to Rep. Reynolds stands. Good luck, but get your house in order.

The “Everybody does it” defense

You knew it was coming.

Alicia Franklin

A prominent line of defense has emerged for a newly appointed family court judge accused this month of false billing when she was working as a court-appointed lawyer representing abused children: Everybody does it.

District Court Judge Alicia Franklin, the subject of a criminal complaint alleging she broke the law by billing for more than 24 hours of work in a single day as a court-appointed lawyer in Child Protective Services cases, has explained the high hours by saying she was billing for work done by associates and support staff.

Her supporters say the payment voucher that lawyers submit for approval to the judges who appoint them does not include a place to indicate that anyone else worked on the case, which is why it appears that Franklin did everything, from home visits to post office runs to filing court documents. They also say that billing for associates or support staff is commonplace among lawyers, including those who primarily perform court-appointed work.

See here and here for the background. There’s just one problem with this line of defense for Judge Franklin: The law says you can’t do that.

The applicable section of the Texas Family Code, which dictates what fees the attorneys can charge, says they “shall complete and submit to the court a voucher or claim for payment that lists the fees charged and hours worked by the guardian ad litem or attorney ad litem.”

An attorney ad litem is one appointed by a judge to represent the interests of a child or a person deemed legally incompetent.

“It sure does imply that it has to be hours worked by the actual ad litem and, I would think, especially for substantive work as opposed to more clerical things,” said Austin family lawyer Jimmy Vaught, chair of the family law section of the State Bar of Texas.

Vaught said he itemizes bills for private clients so they know what they are being charged for and said he would expect the same, or higher, standards for taxpayer-funded work.

His predecessor, Houston family lawyer Sherri Evans, the immediate past chair of the family law section, noted that the statute says “shall” rather than “may.”

Arlington-based family lawyer Toby Goodman, a former state representative who authored the 2003 bill that put that family code provision into place, said he has no problem with court-appointed lawyers billing for work done by associates or support staff but would expect it to be meticulously itemized and for the rates charged to be different for work done by the lawyers versus work done by their associates and staff, as it is in the private sector.

“If this particular judge is billing 24 hours out a day for her time and it’s not broken out, that’s inappropriate,” he said.

And now David Farr, the administrative judge for the nine family courts, has said he will start requiring lawyers he appoints to cases in his 312th District Court to sign a form swearing that they have billed only for time they personally incurred, unless they have permission to do otherwise. If nothing else, that ought to eliminate the wiggle room and ensure everyone is on the same page. I hope the other Family Court judges follow this lead.

Finally, while the story goes over Greg Enos’ role in all this, Enos is hardly sitting idle. His September 16 newsletter continues his investigation into the shady practices of Gary Polland, and he provides what he considers to be a better (though not sufficient) defense of Alicia Franklin. Check it out.

Lawsuit filed to get Paxton records from State Securities Board

From the Lone Star Project on Wednesday:

Sen. Ken Paxton

Today the Texas Coalition for Lawyer Accountability (TCLA) filed suit against the Texas State Securities Board to obtain documents linked to Republican attorney general candidate Ken Paxton’s admitted felony violation of state securities law.

“Ken Paxton’s actions define corruption. Paxton has not only disqualified himself to serve as Texas attorney general, but to even practice law,” said Matt Angle, Lone Star Project director. “Current AG Greg Abbott’s silence on the Paxton felony is deafening and reflects his tolerance for corruption and his own lack of character and ethics. Both Paxton and Abbott are hiding out and hoping the press will ignore admitted criminal behavior. TCLA is responsibly working to assure that doesn’t happen and properly demanding accountability for the legal profession,” he added.

Despite the Securities Board’s own ruling that Paxton broke the law, slapping him with a Disciplinary Order and fine, it has refused to make documents related to their investigation available to the public. On August 21, TCLA requested that the board provide records pertaining to its investigation of Paxton and the illegal solicitations he made in exchange for kickbacks from long-time friend and partner-in-crime Frederick Mowery.

Not only did Paxton admit on record to committing a felony, as an attorney who defrauded his clients, he now must contend with the possibility of disbarment. On August 5, TCLA filed a disciplinary complaint and narrative with the State Bar, seeking the revocation of Ken Paxton’s law license, citing “multiple acts of serious Professional Misconduct in violation of the Texas Disciplinary Rules of Professional Conduct.”

As the Lone Star Project recently reported, Paxton is hiding behind his staff, refusing to answer questions by the media or speak with the public. The Board’s records are therefore “important evidence” in the TCLA complaint with the State Bar, and are directly relevant to unveiling the secrets Paxton has fought so hard to hide.

See here for the background, and here for the TCLA’s statement and explanation of their action. The Texas Politics blog has picked this up, but beyond that I haven’t seen any news coverage. As Iain Simpson commented on my previous post, there are reasons to be wary of self-appointed watchdogs springing into action like this in the middle of an election. On the other hand, I’m not sure what the value of the Securities Board keeping their documents secret is. According to the Statesman, some of the documents were withheld under state confidentiality requirements, but the Texas Securities Act, however, allows a court to order documents to be released for good cause. Which the plaintiffs naturally say they have. Anyway, it’s another little mess of Paxton’s own making that will have to be cleaned up in the unfortunate event that he gets elected.

State bar grievance filed against Paxton

It’s getting to be hard to keep track of all of the complaints and legal actions being filed against the man who would be the state’s top lawyer. This one is a grievance filed with the State Bar of Texas by another watchdog group.

Sen. Ken Paxton

In its grievance, the Austin-based Texas Coalition on Lawyer Accountability requests that the state bar investigate whether Paxton broke at least four rules involving the disclosure of conflicts of interest.

“Like every other Texas lawyer, Mr. Paxton must comply with the legal ethics rules that govern the legal profession,” the coalition said in a news release.

Once a grievance is filed with the state bar, the Chief Disciplinary Counsel’s lawyers review it to see whether it actually alleges violations of the Texas Disciplinary Rules of Professional Conduct. If it does, it becomes a complaint that can lead to an airing of the issue in district court or before a panel of state bar lawyers from across Texas. If sustained, the complaint can result in the suspension or disbarment of an attorney.

Anthony Holm, a spokesman for the Paxton campaign, called the grievance “yet another political stunt” by a group with Democratic ties, pointing out the acting executive director does not have a law license. “Frankly, it’s a bit silly,” Holm said in a statement.

The coalition did not immediately respond to a request for comment Tuesday, but in announcing the grievance said it aims to hold lawyers accountable regardless of their political affiliations.

As you may recall, a criminal complaint was filed in July, and a complaint with the SEC was filed in May. I didn’t recall hearing about the Texas Coalition on Lawyer Accountability before, but I did note the complaint they filed in 2011 against Ken Anderson, John Bradley, and Mike Davis over the Michael Morton case. As a reminder, to myself as much as to you, they are “a nonprofit 501(c)(3) organization dedicated to educating the public and advocating the public interest to hold the Texas Legal profession accountable to its statutory, constitutional, and ethical obligations”. Their origin story is that the TCLA was established in 2010, initially to provide input from the public perspective on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct. Here’s a letter they sent to then-Chief Justice Wallace Jefferson outlining their concerns. They eventually won a victory over this issue in 2011, when the proposed changes were voted down by the bar members.

Anyway. They’re definitely on the do-gooder side of things, but I wouldn’t dismiss their track record. Here’s their statement on the grievance, which outlines the basics of Paxton’s admitted and alleged bad deeds, the complaint narrative, which is the long version of the story, and the actual complaint form that they filled out. Any lawyers want to weigh in on this?

Charles Sebesta may finally have to face responsibility for his actions against Anthony Graves

Very good news.

Anthony Graves

It’s been eight years since the Fifth Circuit Court of Appeals found that the DA who prosecuted Anthony Graves for capital murder had done something unconscionable : withheld favorable evidence and used false testimony to secure a conviction—a conviction that sent Graves to death row.

Since that federal ruling came down in 2006, granting Graves a retrial, many good things have happened: Anthony was freed from prison in 2010, after all charges against him were dropped; he was formally exonerated by the State of Texas; and he received $1.4 million in compensation for the eighteen years he spent in prison for a crime he did not commit. But the man who secured his 1994 conviction—former Burleson County DA Charles Sebesta— never faced any consequences. The state bar took no action against him. Even when he continued to impugn Graves’ character, telling Texas newspapers as recently as this January that Graves was guilty of murder, he did so with impunity.

Finally, last week—twenty years after Graves’ wrongful conviction—the bar took a small but significant step toward ensuring that Sebesta would have to answer for his actions. The bar’s chief disciplinary counsel determined that there was “just cause” to believe that the former prosecutor had engaged in misconduct in Graves’ case. This finding followed a lengthy investigation, which the bar conducted after Graves brought a grievance against Sebesta this January. (Graves was only able to do so because lawmakers recently passed Senate Bill 825, which changed the existing statute of limitations, allowing exonereees to file such grievances with the bar up to four years after their release from prison.)

A legal proceeding will now follow, in which the bar will decide whether or not to dismiss the grievance, or sanction Sebesta. If the bar decides to sanction him, he could receive a punishment as light as a reprimand—essentially a slap on the wrist—or as severe as disbarment.

Though Sebesta has always put great stock in trying people before the court of public opinion—to this day, he continues to insinuate on his website that Graves is a murderer —he has asked that the bar hear his case in a confidential proceeding, rather in than open court. (The bar allows attorneys who are the subject of such grievances to choose whether they will have their cases heard in a district court before a judge or jury, or privately, before a panel of lawyers who serve on the bar’s grievance committee.) “His conduct against Anthony Graves was in a public proceeding and he continues to make public attacks on Mr. Graves,” said Kathryn Kase, executive director of the Texas Defender Service, a non-profit organization that represents Graves, along with attorneys in the Houston law firm Susman Godfrey. “He should defend his conduct in a public proceeding, for all to see.”

See here and here for the background. I find it utterly risible that Sebesta wants a closed hearing given the way he has (and continues to) run off his mouth about Anthony Graves, but whatever. Have a fair hearing and then disbar the SOB. Anything less would be insufficient. The Trib, the AusChron, and Grits, who has statements from Graves, the Texas Defender Service, and Kathryn Kase (all of whom amusingly and appropriately reference the actions of “honest” prosecutors in getting to the truth of the matter), have more.

Another slap on the wrist for a prosecutor behaving badly

Weak. Very weak.

The Texas Bar Association has issued a public reprimand to state district Judge Kaycee Jones for her role in clandestine texting during a criminal trial while she was a prosecutor and before her election to the bench last year.

Jones, who oversees the 411th court in Polk, Trinity and San Jacinto counties, signed the agreed judgement citing her for “professional misconduct” just before she came in front of the bar’s grievance panel for a hearing this month.

Jones, 39, was an assistant Polk County prosecutor for 11 years before becoming a judge in 2013. She could not be reached for comment.

However, in a letter to the bar’s disciplinary counsel several months ago, Jones confessed to being an accomplice in a texting incident that she stated she knew was wrong, writing: “I deeply regret that I acted in this manner.”

The agreed judgment documented how Jones had received text messages from state district Judge Elizabeth Coker, while she was seated on the bench during a trial in a child injury case.

Jones, then an assistant prosecutor and observer during the trial, wrote down the message that suggested a line of questioning to bolster the prosecution’s case and relayed it to the lead prosecutor.

[…]

However, several whistle blowers in the investigation, including attorneys Cecil Berg and Richard Burroughs, said the state bar was far too lenient on Jones.

“I’m totally stunned and in disbelief,” said Burroughs of Cleveland. “I served on the state bar’s grievance committee for eight years and would have expected Jones to be suspended or disbarred when she has confessed to violating someone’s civil rights.”

He said Jones has since refused to recuse herself from overseeing his cases that come into her court and feels she is retaliating against him.

He and Berg wanted the state bar to expand its investigation to include multiple other “ex parte” texts between Jones and Coker involving other defendants which were given to the state judicial commission for review.

“We want to find a way to have the bar association look at them still,” Burroughs said.

See here and here for the background. I suppose the State Commission on Judicial Conduct can weigh in as well, since Jones is now a judge, but since all they did with her partner in crime Coker was make her resign, I don’t expect much. I still think a suspension of one year is the bare acceptable minimum punishment for what these two unethical idiots did, and disbarment would not have been too harsh. Why bother to behave if there are no consequences for breaking the rules? Grits has more.

State Bar investigating Charles Sebesta

Good.

Anthony Graves

The State Bar of Texas has opened an investigation into Charles Sebesta, the former Burleson County District Attorney who prosecuted death row exoneree Anthony Graves.

The organization that oversees lawyers is investigating alleged professional misconduct by Sebesta, which, if proven, could result in his disbarment. The investigation was prompted by a complaint that Graves filed in January. Sebesta will have 30 days to file a response to the complaint.

“It sets a precedent for other state prosecutors that they have to act ethically,” said Ramota Otulana, a clerk at the law firm that represents Graves.

Graves spent 18 years behind bars — 12 of them on death row, where he twice neared execution — before the U.S. 5th Circuit of Appeals overturned his conviction in 2006, ruling that Sebesta had used false testimony and withheld favorable evidence in the case.

[…]

State Bar officials have said the previous complaint was dismissed because the statute of limitations on the alleged violations had expired. In 2013, lawmakers approved Senate Bill 825, which changed the statute of limitations, allowing a wrongfully imprisoned person to file a grievance up to four years after their release from prison in cases of alleged prosecutorial misconduct. Previously, the four-year statute began on the date the misconduct was discovered.

State Sens. Rodney Ellis and John Whitmire, and state Rep. Senfronia Thompson, all Houston Democrats, joined Graves in calling for accountability for Sebesta at a Wednesday press conference.

“I’m asking prosecutors to cooperate with the highest of integrity,” Graves told reporters in January. “It took me 18 and a half years to get back home. Two execution dates. All because a man abused his position.”

See here for the background. I hope they nail him. Sen. Ellis has more on his Facebook page.

Charles Sebesta needs to be held accountable

Amen to this.

Anthony Graves

Former Texas death row inmate Anthony Graves, who spent 18 years behind bars before he was exonerated in the bloody 1992 slaying of a Somerville grandmother, her daughter and four grandchildren, is seeking justice against the man who put him there.

In 2006, the 5th U.S. Circuit Court of Appeals overturned Graves’ capital murder conviction when a three-judge panel said he deserved a new trial after ruling that Burleson County District Attorney Charles Sebesta elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves, who was released from prison in October 2010, is taking advantage of a new state law that allows a grievance against a prosecutor to be filed within four years of a wrongfully imprisoned person’s release.

State Sens. Rodney Ellis, John Whitmire and state Rep. Senfronia Thompson, all Houston Democrats, stood behind Graves on the campus of Texas Southern University on Monday as he and his attorneys urged the Texas State Bar to investigate and discipline Sebesta.

“I am asking prosecutors who operate with the highest integrity to support me,” Graves, 48, told reporters. “I am seeking justice for the man who wrongfully prosecuted me.”

[…]

Graves and his attorney, Bob Bennett, said the new law remedies the statute of limitations rule.

“There’s been no final order,” Bennett said. “Even if it was dismissed, you still have the option of coming back because there’s been no final order.”

Whitmire and Thompson sponsored the bill that was one of several that passed last year as details of Michael Morton’s wrongful murder conviction and exoneration came to light.

Anthony Graves deserves justice in the same way and for the same reasons as Michael Morton. In many ways, the injustice done to Graves was worse. If you’re not familiar with Anthony Graves, read this report by Texas Monthly writer Pamela Colloff, who is the authoritative source on Graves and Morton. That article was published on the day that Graves was freed after the charges against him were dropped.

Not until yesterday morning did Burleson County district attorney Bill Parham and special prosecutor Kelly Siegler explain why they had made such a dramatic about-face. At a press conference at the D.A.’s office in Brenham—just across the street from the courthouse where Graves’s retrial was to have taken place early next year—Parham told reporters that he was “absolutely convinced” of Graves’s innocence after his office conducted a thorough examination of his case. Parham was clear that this was not a matter of having insufficient evidence to take to trial; charges were not dropped because too many witnesses had died over the years or because the evidence had become degraded. “There’s not a single thing that says Anthony Graves was involved in this case,” he said. “There is nothing.”

Former Harris County assistant district attorney Kelly Siegler, who has sent nineteen men to death row in her career, went even further in her statements. Siegler laid the blame for Graves’s wrongful conviction squarely at the feet of former Burleson County D.A. Charles Sebesta. “Charles Sebesta handled this case in a way that would best be described as a criminal justice system’s nightmare,” Siegler said. Over the past month, she explained, she and her investigator, retired Texas Ranger Otto Hanak, reviewed what had happened at Graves’s trial. After talking to witnesses and studying documents, they were appalled by what they found. “It’s a prosecutor’s responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims,” she said. “And unfortunately, what happened in this case is all of these things.” Graves’s trial, she said, was “a travesty.”

So yeah, this is a big deal. You need to read Colloff’s two feature stories to get the full measure of outrage at this horror. Sebesta avoided any repercussions for his abhorrent actions initially because Texas’ law at the time started the clock on the statute of limitations way too soon. Here’s Colloff again with the details.

At first glance, the bar’s lack of action against Sebesta is confounding. Why would the statute of limitations prohibit the agency from taking action against Sebesta, who prosecuted Graves in 1994, but not against Anderson, who prosecuted Morton seven years earlier, in 1987? The answer lies in one simple detail: the statute of limitations does not begin to run until the facts of the offense—such as withholding evidence favorable to the accused—are discovered (or, in legalese, “become discoverable”). In the recent proceedings against Anderson, the bar persuasively argued that the statute of limitations did not begin running until 2011, when the transcript describing Morton’s son’s account of the killer was found in Anderson’s files. Such a strategy was not possible with Sebesta, Acevedo told me, because “the information at issue”—i.e., that he withheld favorable evidence—“was known more than four years before the grievance was filed.”

Bennett, who filed the grievance, takes issue with that, arguing that the Fifth Circuit’s ruling “was the official notice of what had taken place.” And Graves’s attorney, Cásarez, believes that’s key. While it’s true that Graves’s lawyers learned in 1998 that Carter had repeatedly told Sebesta of Graves’s innocence, when they took a deposition from Carter at that time, it was simply a defendant’s word against that of a sitting district attorney. It was not until 2006 that the Fifth Circuit made an official finding that Sebesta had withheld evidence. “Now, how can someone file a grievance and expect to get anywhere until a court finds that the prosecutor engaged in misconduct?” Cásarez wondered.

Thankfully, SB825 took care of that loophole last year. Now maybe Charles Sebesta will finally be held to account for his actions. The Trib and Colloff again have more.

State Bar seeks sanctions against Ken Anderson

Seems reasonable to me.

Arguing that a trial is no longer needed, the State Bar of Texas has asked a judge to summarily rule that former Williamson County District Attorney Ken Anderson engaged in professional misconduct by hiding evidence in the murder trial of Michael Morton, who was exonerated after spending almost 25 years in prison.

Such a ruling would allow the State Bar, which oversees lawyer discipline, to proceed directly to a state district court hearing on sanctions against Anderson, who could be disbarred, temporarily lose his law license or receive a public reprimand for his handling of Morton’s prosecution in 1987.

A lawyer for Anderson, now a state district judge in Georgetown, said he will oppose the bar’s motion and plans to move for a dismissal of the State Bar’s lawsuit.

The civil lawsuit is separate from criminal charges that are also pending against Anderson, but both cases rely on the same accusations – that Anderson hid evidence that could have raised questions about Morton’s guilt, then lied when he assured Morton’s trial judge that he had no favorable evidence to turn over to the defense as required by law.

Morton served almost 25 years in prison for the murder of his wife, Christine, before he was exonerated in 2011.

In its motion for summary judgment, the State Bar’s Commission for Lawyer Discipline argued that a Sept. 30 trial wasn’t necessary because its allegation – that Anderson violated his duties as a lawyer – had already been proved in a court of inquiry that examined Anderson’s handling of Morton’s prosecution.

[…]

The criminal case against Anderson is still in the early stages, and Anderson’s legal team has filed an appeal arguing that the charges are improper because the statute of limitations had passed two decades ago.

Anderson’s lawyers believe the State Bar’s lawsuit also is barred by the statute of limitations and plan to file a competing motion for summary judgment asking that the lawsuit be dismissed, lawyer Eric Nichols said.

In its motion, the State Bar argued that Anderson mounted a vigorous defense during a weeklong court of inquiry hearing in February and isn’t entitled to retry the facts after losing that case.

The law “prevents relitigation of particular issues that were litigated and decided in a previous lawsuit,” argues the motion from Linda Acevedo, the commission’s chief disciplinary counsel.

Nichols disagreed, saying the court of inquiry didn’t result in a final decision or judgment against Anderson, who insisted he did nothing wrong, and operated under looser rules of evidence, providing a questionable result.

As noted in the story, the judge in the court of inquiry issued an arrest warrant for Anderson in April, charging him with tampering with physical evidence and tampering with a government document. I can see Anderson’s point that this wasn’t a normal courtroom procedure and the standards of evidence may have been different, but he got to put on a defense and it’s hard to see how things would play out differently in civil court. Unless some of the previously introduced evidence was suppressed via a successful motion by his attorneys, which would add a layer of irony to the whole thing that I’m not sure any of us could handle. The statute of limitations argument completely fails to impress me. It may be technically right if we are forced to start the clock when Michael Morton was tried, but under the much more sensible interpretation that the limitations period began when the crime was actually discovered there’s no leg to stand on. I say Anderson has had his chance to prove that the misconduct allegations were meritless. The Bar has a responsibility to act, and it should be allowed to do so.

State Bar clears Feldman

I believe this brings to a close the last unresolved issue involving former CM Jolanda Jones.

David Feldman

The State Bar of Texas has cleared City Attorney David Feldman of a grievance lodged by former Councilwoman Jolanda Jones that he mishandled an investigation of her.

Jones alleged last summer that Feldman violated the legal profession’s ethical standards by providing legal advice to her before an investigation into whether she used city resources to support her private law practice and later advised Mayor Annise Parker on the matter.

Feldman said he received formal notice from the State Bar on Friday that the grievance has been dismissed with no right of appeal.

See here and here for some background. Jones had been previously cleared by the District Attorney and the ethics panel, so as far as I know this puts a bow on the whole saga.

More troubles for CM Jones

There have not been many dull moments this year for CM Jolanda Jones. That seems unlikely to change in the near future.

[O]n Wednesday, revelations surfaced that one of her staffers photographed a citizen picking up public records from her office and that the police union asked the Harris County district attorney to investigate Jones for allegedly practicing law without a license.

Both are likely to provide further ammunition for Jones critics and fodder for her campaign opponents.

Earlier Wednesday, Parker said someone from her office had called the state Attorney General’s office for counsel on how to respond to a Sept. 15 incident in which Jones’ chief of staff, Jack Valinski, allegedly took pictures of a 23-year-old law school graduate who came to pick up emails and calendar information he had requested under the Texas Public Information Act.

“It completely freaked him out,” attorney Billy Skinner said of his client, Andy West. “He felt scared. He felt intimidated.” Skinner said West is not connected to the campaigns of any of Jones’s three opponents on the November ballot for At-Large Position 5 on the Council.

Mr. Skinner has uploaded a video of the incident, presumably taken from City Hall security cameras. He also addressed Council, and specifically CM Jones, about the incident this past Thursday. You can see that video here; go to video 4, and scroll ahead to 15:20 for the nine-minute exchange, including Mayor Parker’s postscript. I will leave both to your interpretation.

[L]ater Wednesday, the friction between Jones and the Houston Police Officers’ Union flared anew when the union delivered a letter to District Attorney Pat Lykos asking her to investigate Jones for practicing law without a license.

The State Bar of Texas suspended the councilwoman’s law license on Sept. 1 because she had failed to pay her annual membership dues and her attorney occupational tax. She was reinstated Sept. 30 when she paid the arrears in full. The police union submitted legal documents signed by Jones with September dates to indicate that she continued to practice law during the suspension.

“It’s starting to look a lot like Groundhog Day at HPOU. If the sun comes up, then there’s a good chance that Ray Hunt will lodge a complaint somewhere,” Jones spokeswoman Kelly Cripe said in an email. Hunt is the union’s vice president.

You can see the HPOU press release here. I’ve not seen any of the referenced documents, and not being an attorney I’m not sure I’d know what to make of them if I had. Far as I know, the grievance the HPOU filed against Jones with the State Bar has not yet been resolved. We’ll see what Lykos does with this hot potato.

State Bar to investigate Jones’ complaint against Feldman

On we go.

The Texas State Bar will investigate allegations by Councilwoman Jolanda Jones that City Attorney David Feldman committed professional misconduct through his involvement in a city ethics investigation that targets Jones.

Jones filed a grievance with the bar against Feldman. She contends Feldman violated the profession’s ethical standards by giving her legal advice before she became the subject of a city investigation and then to Mayor Annise Parker (who heads a panel that reviewed the findings for possible referral to City Council) during and after it. Feldman’s participation in a review process that he largely designed, and his legal advice on a case in which he is a witness, also violate the state bar’s ethics code, Jones’s attorney has said.

“This is just the way the process works,” Feldman said when asked about the State Bar letter. It means little more than that the bar has received Jones’s complaint, he said, and that he expects the complaint will be found to be without merit.

A copy of the State Bar’s letter to Feldman is at the link above, and some background is here. I received an email from CM Jones’ spokesperson Kelly Cripe, which contained the following:

Statement from Lori Hood, attorney for Council Member Jolanda Jones:

“The State Bar of Texas has validated my client’s concerns with the decision to investigate the city attorney for misconduct. We believe that substantial violations of the state bar’s ethics code have occurred.”

Statement from Council Member Jolanda Jones:

“I take very seriously the roles and responsibilities of the city’s elected and appointed officials and I will continue my efforts to resolve matters in the best interest of Houstonians.”

We’ll see what happens from here. Hair Balls has more.

Sanctions sought for deadline-missing attorney

This is a necessary step, but it is not a sufficient one.

Texas’ highest criminal court has asked the State Bar of Texas to investigate a San Antonio attorney who missed critical deadlines in four recent death row appeals — actions that jeopardized inmates’ chances of obtaining further legal review before execution.

The Chronicle reported on Monday that San Antonio attorney Suzanne Kramer was among a handful of lawyers statewide who repeatedly missed death row deadlines but continued to get capital murder assignments.

On Wednesday, the Texas Criminal Court of Appeal found Kramer in contempt of court for failing again to properly file inmate Juan Castillo’s appeal — originally due in December 2006 . Kramer was fined $250, removed from Castillo’s case and referred to the chief disciplinary counsel of the State Bar of Texas, the opinion shows.

The court removed her from three out of four late cases in 2008, but at the time continued to allow her to represent Castillo.

We’ve heard about Ms. Kramer before. She has been paid $86,577 in fees by Bexar County since 2007, according to that Chron story, though she was not paid for the cases where she missed deadlines. That she needs to be held accountable for her unprofessional behavior is clear, but what’s equally clear is that courts need to stop assigning attorneys like her to these cases in the first place. There should also be a process to take already-assigned cases away from them once they’ve demonstrated they can’t handle them. Until we fix that, we’re not fully addressing the problem.