Ugh.
George Barnstone
A Harris County civil court judge has resigned amid several allegations of judicial misconduct, including showing bias or prejudice toward litigants and attorneys on the basis of race, sex or socioeconomic status, according to the State Commission on Judicial Conduct.
George Barnstone, of Harris County Civil Court at Law No. 1, was the subject of six complaints encompassing at least seven allegations of misconduct. Those also included claims he used his judicial office to advance his private interests and made appointments violating the Texas Government Code, which bars conflicts of interest, the resignation agreement states.
He signed the agreement on July 12, records show, and state commission Chair David Hall approved the decision Monday.
[…]
Other complaints — all listed in the agreement — alleged the judge didn’t comply with the law related to awarding attorneys fees or statutory interest post-judgment; failed to give a defendant their right to be heard; failed to treat attorneys with patience, dignity and courtesy; and failed to require and maintain order and decorum in court proceedings.
The state commission had not made any findings related to the complaints, and Barnstone’s resignation will take place instead of disciplinary action, the document reads. The resignation, however, is not an admission of guilt.
Barnstone won’t be able to run for judicial office or sit in a judicial capacity again, the agreement stipulates.
We won’t get a lot of details because the Commission will not make any findings due to the resignation, but all of this sounds bad. I found this story from 2019 while image searching, and that isn’t a good look, either. I’ve known George Barnstone for a few years – he’s a genuinely affable guy – and he made at least one other run for judge before winning in 2016, but it clearly wasn’t a good fit. I’m sorry it came to this, but it’s the right call.
Because this is a County court and not a District court, County Commissioners will get to name a replacement, as they have done before in recent years. Between this and the forthcoming replacement of Sheriff Ed Gonzalez, they’ll have some big decisions to make. I would assume they’ll have a new judge on the bench in a couple of weeks. Get your name in the hat quickly if you think it should be you.
Barnstone’s opponent in the 2016 Primary, when he first won this seat, was incredibly rude.
There was a meet-and-greet event at Harold’s, possibly sponsored by Planned Parenthood. I remember Mr. Kuffner being there, but I’m not 100% certain. Regardless, Barnstone’s opponent, Richard Leach, definitely was. After chatting with a an assertive Leach for a little bit, I confessed that for judicial races, I, and many other people, voted for whomever my puppet master suggested I vote for. I pointed her out and promised to introduce him, however, as my puppet master was on the phone so I said I’d wait until she was done.
He bugged me the introduction twice, later, even though she was still on the same phone call. I said, no, I wasn’t going to interrupt. He took it upon himself to interrupt her without me in what turned out to be an important work phone call and it did not go over well.
That, plus all the other endorsements, were enough to make Barnstone the clear choice over Leach. This story comes as a disappointment.
When the Judge isn’t “friendly” enough
The four Harris County Civil Courts at Law are, for the most part, debt collection courts.
Courthouse grapevine has it that Judge Barnstone wasn’t automatically ruling for the collection law firms at the expense of cash-strapped consumers and ordinary people down on their luck.
So he was forced out. It likely wasn’t politically motivated because Harris County Commissioners Court (not the Governor) gets to pick the successor. Barnstone is a Democrat and the Commissioners Court is now under Democratic majority control, so his appointed successor will likely be a Democrat also, though Clyde Leuchtag, a Black Republican, might be seriously considered for a come-back. Incidentally, one of Barnstone’s predecessors on the bench is a current Republican member of the Court.
But the lack of an obvious partisan dimension doesn’t mean that vested interests didn’t play a role, if they weren’t the driving force to push this judge off the bench. It’s not that judicial discipline dazzles with transparency.
We don’t have all the facts regarding specific complaints filed with the Commission on Judicial Conduct, and likely never will, but consider this question in the interim:
Who would complain about not getting attorney’s fee?
First, it would have to be attorneys because attorney’s fees cannot otherwise accrue.
Second, only a small percentage of consumer debt defendants retains an attorney, and they are not entitled to fees if they win a case in which the client was sued on a contract. Such a legal victory would typically take the form of a dismissal, and a partial win in the form of a settlement agreement. It could be a lump sum in exchange for a nonsuit with prejudice, or a payment plan based on a Rule 11 agreement or an agreed judgment that won’t be enforced as long as all scheduled payments are timely made on it. When the case resultion is agreed, the judge doesn’t get to adjudicate anything to complain about.
Third, it would be the plaintiff’s side in breach-of-contract cases because only the plaintiffs can collect fees under Chapter 38 of the CPRC (the principal attorney fees statute), and most loan and credit card agreements (as an alternative basis for a fee award). And the plaintiffs in collection cases are the creditors.
While the award of fees to a prevailing plaintiff involves some measure of judicial discretion (what is reasonable?), you generally can’t get attorney’s fees as a prevailing defendant, and therefore have no basis to pooh-pooh the judge, or be dissatisfied with the amount.
Additionally, consider who has the most at stake in how the caseload gets handled.
Individual cases may be tragic to the financially stressed consumers or student loan debtors that gets taken to court, but thousands of cases add up to big amounts of money on the plaintiffs’ side. Big money even if only a fraction will in the end be collectible. And the labor costs are low because the vast bulk of collection cases get handled with litigation software and mass document-production system that require minimum attorney involvement.
But attorney’s fees are nevertheless often sought anyhow to increase the amounts of judgments, and thus the total nominal volume of revenue. A single attorney may be overseeing hundreds of cases, if not thousands.
Collection law firms engage in mass litigation in numerous courts contemporaneously. The biggest ones operate on a statewide basis (and some even in multiple states). That allows them to use software to track the “value” of each court/judge in terms of (1) number and rate of favorable judgments, and (2) the total revenue produced in dollar terms (judgment amounts), and (3) the additional amounts awarded in attorney’s fees, if any. Individual judges/courts can then be ranked in terms of profitability.
With a local rule that prescribes random assignment of new cases to avoid forum shopping, particular courts cannot be selected or avoided when new cases are filed. That then leaves the option of trying to get rid of a judge that is bad for the business.
Nominally, the award of fees goes to the entity appearing as plaintiff (which may be the original creditor or an assignee/debt buyer), but in practice the fees increase the take for the collection law firms, which typically operate on contingency, rather than on an hourly-fee basis. The latter would be standard practice when outside lawyers represent a corporation when sued. But in collection cases, corporations appear as plaintiffs.
TENTATIVE CONCLUSION: Barnstone likely had to go because he wasn’t producing enough revenue for the creditors’ bar and their corporate clientele.
This proposition could be evaluated empirically through a systematic review and comparison of the caseloads among the four civil county courts to determine disparities in outcomes (incidence of dismissals and take-nothing judgments, rate of judgments for full amount, award of attorney’s fees, and what amount of fees relative to requested amount or amount of the debt awarded as damages). Comparability of the four subsets of the caseload would be assured thanks to random case assignment at the intake stage.
The repeat players who file thousands of similar cases, of course, would already have this type of data in their own litigation management systems (at least for their own cases), and would thus be in a position to conclude which judges are worth keeping on the bench, and which not so much.
The same judicial “performance” data would also be useful for decisions on which judges to support with campaign donations.
1. I did not find him to be any gruffer than many of the other judges, and in fact he was well-prepared on the law and facts and bent over backwards to allow an unprepared and disorganized opponent to be heard.
2. There are some statutes which require fees be awarded, but I would think the remedy for that would be an appeal to a higher court rather than complaining about the judge.
3. None of us knows what the actual complaints were, so it would be sheer speculation to suggest this has anything to do with debt collection cases.
JUDGE’S FAILURE TO AWARD ATTORNEY’S FEES (OR NOT ENOUGH)
Re: “It’s sheer speculation to suggest this has anything to do with debt collection cases.”
What is true is that we don’t know what exactly is in the complaints, and we have to assume — arguendo — that the reported complaint about Barnstone’s failure to award attorney’s fees is true (not necessarily for the validity of the complaint, but for the fact that it was made).
As for disposition of contested debt-collection cases having something to do with the premature tenure-termination of this judge, it is not sheer speculation. Instead, it’s a testable hypothesis, and it’s also plausible for the reasons provided in the body of this Kibitzer’s original comment.
Even just as a matter of statistics, it is highly likely — with 6 complaints to the Commission — that at least some would arise from debt-collection cases because those cases represent the bulk of the caseload in these four courts.
On the other hand, it is also plausible that a judicial-conduct complaint might arise from a case that is not routine, e.g. a commercial dispute, if it was heavily litigated and if the relevant cause of action or contract entitles the prevailing party to a fee award. Such a case would involve a higher claim-amount for attorneys fees due to the higher number of attorney hours spent on it. In other words, it could be a big deal. But the ordinary remedy – as pointed out by Commentator Mainstream above — would be a regular appeal, not a complaint with the Judicial Conduct Commission.
SPECIALIZED COUNTY COURTS IN HARRIS COUNTY
Note that the Civil County Courts at Law (CCLs) of Harris County are statutory county courts that are specialized. Unlike county courts in other counties, they do not hear family law matters, probate, or juvenile delinquency cases. All of the latter case categories have their own specialized courts in Harris County. Nor do they handle misdemeanor cases. There are separate criminal county courts for that. And the bulk of the more complex civil cases, including MV wreck and other personal injury cases, are litigated in the numerous district courts. The same goes for other complex civil suits, most injunction suits, and cases where the amount in controversy is high. While their jurisdiction overlaps with the district courts (giving many plaintiffs a choice), they are courts of limited jurisdiction. See Tex. Gov’t Code Ann. § 25.003(c)(1) (West Supp. 2017) (granting statutory county courts concurrent jurisdiction over civil cases in which the matter in controversy exceeds $500 but does not exceed $200,000, exclusive of items including punitive damages and attorney’s fees).
Case categories other than debt/consumer/commercial in the CCLs are eviction appeals from JP court and sundry other appeals from adverse judgments in JP courts (tried de novo), occupational drivers licenses (for people who had them snapped away for good cause such as causing an accident and not carrying insurance), and some real estate and occasional eminent-domain cases.
There are some tort cases, too, which would be overrepresented on the jury trial docket. Most debt collection matters, however, are resolved with default judgment or summary judgment, if not a dismissal or an agreed judgment. But most automobile wrecks and other personal injury cases are litigated in the civil district courts. One reason for this is that the process in the county courts is more expedited and abbreviated: assembly-line justices for the vast bulk of the caseload. And four judges are easier to get to know — and to predict, with respect to their hearing and docket-management practices – than twenty. Debt collection attorneys like that because it helps with efficiency.
The quality of the legal paperwork in these courts, and of attorneys practicing in them, is generally lower too, compared to what happens in district courts. In most cases, there isn’t any fancy briefing because most cases aren’t high in complexity, and don’t require sophisticated legal (i.e., case law) research.
INFERENCES IN THE ABSENCE OF TRANSPARANCY IN JUDICIAL CONDUCT MATTERS
All that said, at least one of the complaints against Judge Barnstone may very well have come from an attorney with a personal grudge, or one already on record for fighting attorney fee award and interest issues thanks to an excursion to the court of appeals. That may again draw a charge of “pure speculation”, but at least the appellate aspect of it would be ascertainable. Not sure it’s worth doing the research. In any event, a single case wouldn’t lend itself to facile generalization, or support an overall judgment of Judge Barnstone.
That wouldn’t be fair.
Good write up, Wolf. Your supposition seems very plausible.
I am sad that my friend and former opponent had to leave the bench in this manner 🙁
Judge Barnstone worked to avoid evictions with all the tools in his toolbox. He worked to keep people in their homes, and started a pilot program whereby underwater tenants would pay back a component of back rent in exchange for getting to vacate properties with time, and avoid the scarlet letter of eviction on a permanent record.
Of course, this made Judge Barnstone unpopular among many of the fancier parts of the Bar. After all, slumlords’ attorneys often have powerful interest groups and the political capital to make noise with editorial boards; indigent tenants seldom do.
I’m a plaintiff’s attorney, and Judge Barnstone was very fair to plaintiffs, so perhaps I’m biased. But I appreciated that from him when I was in law school, back when I was still trying to debase myself to get a fAnCy dOwNtOwN bIgLaW job; he was fair to the little guy. Judge Barnstone was good to the little guy. And a lot of them go before County Civil Courts at Law. Often pro se (without legal representation).
I recall I wrote something about him years ago, and I wrote he was “pro-plaintiff.” He called me, a little peeved. He said he wasn’t, he was just fair. And when you are so used to everyone being pro-defendant, fairness looks like bias the other way. I never forgot that.