The Official Publication of the Texas Center for the Judiciary€¦ · defense lawyer tried to keep...

The Official Publication of the Texas Center for the Judiciary

Volume 29, Number 1Spring 2002

Inside this Issue! Seen From Another Chair! Nominations Committee to Meet!The Lawyer�s Art

Plus Departments! Making News! Ethics Opinions! In Memoriam

In Chambers is the official publication of the Texas Center for the Judiciary. The quarterlymagazine is funded by a grant from the Texas Court of Criminal Appeals.

The staff of In Chambers strives to provide current information about national and localjudicial educational issues and course opportunities for Texas judges.

Readers are encouraged to write letters to the editor and submit questions, comments, orstory ideas for In Chambers. Contact Morgan Morrison, Publications Coordinator, by calling800-252-9232, faxing 512-469-7664, or e-mailing [email protected].

The Texas Center for the Judiciary is located at the Texas Law Center, 1414 Colorado, Suite502, Austin, TX 78701-1627.

table ooff ccoonntteennttss

2 Spring 2002

featuresSeen From Another Chair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Nominations Committee to Meet . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Does CASA Have a Role in Private Custody Litigation? . . . . . . . . . 05

Texas� Newest Administrators of Justice . . . . . . . . . . . . . . . . . . . . . 15

The Lawyer�s Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 07

Thank You,Texas Court Reporters Association . . . . . . . . . . . . . . . . 10

Texas State Cemetery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

departmentsMaking News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 04

Ethics Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In Memoriam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Contributions and Memorials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Looking Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Cover photography courtesy of the Texas State Cemetery.

IInn CChhaammbbeerrssVolume 29, Number 1

Spring 2002

Editorial BoardCChhiieeff JJuussttiiccee MMaarriillyynn AAbboouussssiiee

3rd Court of Appeals, Austin

JJuuddggee MMaannuueell BBaannaalleess105th District Court, Corpus Christi

CChhiieeff JJuussttiiccee SSccootttt BBrriisstteerr14th Court of Appeals, Houston

SSeenniioorr DDiissttrriicctt JJuuddggee SSaamm WW.. CCaallllaannEl Paso

JJuussttiiccee MMoollllyy FFrraanncciiss5th Court of Appeals, Dallas

Texas Center for the Judiciary Staff

MMaarrii KKaayy BBiicckkeettttExecutive Director

[email protected]

TTaannaa JJ.. PPeettrriicchhAssociate Director

[email protected]

BBeettttyy AAnnnn HHeerrnnaannddeezzAdministrative Assistant

[email protected]

SShhiirrlleeyy IIrrvviinnAssistant to the [email protected]

LLaaccyy JJeemmmmoottttRegistrar

[email protected]

CCaarroollyynn CChheeuu MMiittcchheellProgram Attorney

[email protected]

MMoorrggaann MMoorrrriissoonnPublications [email protected]

DDeenniissee SSeeaallFinancial Officer

[email protected]

AAnnddrreeaa WWaallkkeerrConference [email protected]

In Chambers

3In Chambers Spring 2002

The fiscal year 2002 Nominations Committee will meeton or before July 1 to slate officers and new members forthe fiscal year 2003 Judicial Section Board of Directors

and the Texas Center for the Judiciary Board of Directors. If you are interested in serving on either of these boards or

recommending a name for nomination, please notify JudgeLamar McCorkle, Chair of the Nominations Committee, inwriting no later than June 1, 2002.

Judge McCorkle’s address is: Honorable Lamar McCorkle,133rd District Court, 301 Fannin, 5th Floor, Houston, TX 77002.His fax number is 713-755-5779. In addition, please providethe Texas Center with a copy of your interest letter (Attention:Mari Kay Bickett).

Three positions (one for an appellate judge and two for adistrict judge) are open on the Judicial Section Board ofDirectors. Terms are for three years. The chair-elect is

nominated for a one-year term. The secretary/treasurer positionon the Judicial Section Board is an appointed position.

Four positions (one for an appellate judge, two for a districtjudge, and one for a county court at law judge) are open on theTexas Center for the Judiciary Board of Directors. The chair-elect nominee for the Judicial Section will also serve as thechair-elect of the Texas Center. The secretary/treasurer positionon the Texas Center Board of Directors is nominated for a one-year term. "

Nominations Committee to Meet

Lamar McCorkle, ChairJohn BoydSherry RadackFrank CarmonaJulie Kocurek

Raul VasquezDean RuckerB.B. SchraubRusty LaddBrenda Chapman

FY 2002 Nominations Committee

“Ihope you understand that whatyou’re doing here today issignificant. Whether you serve

on the jury or not, the fact that you arehere, that you have made yourselfavailable to serve, is important.” Not justwords I repeat to jury panels, thesesentiments reflect my core beliefs. Myopportunities to serve on juries haveoften been thwarted. As a law schoolstudent, the notice caused anguish. Ichose to attend classes to learn whatwould be tested rather than a trial, whereI might have mastered real lessons. As alawyer on the front row of the panel, Irecognized the defendant, as he did me.He’d poured out his history and versionof the case, imploring me to fight thedemons of injustice for him. Although the

defense lawyer tried to keep me on thepanel, he wouldn’t have wanted me hadhe known just how much I knew. As ajudge, I’ve normally had a jury panel ofmy own and felt it necessary to bow out ofmy own venire appearance.

Once, while I practiced defense law, Istruck gold and served on a DWI jury.I’ve cherished that experience knowingthat now, with 14 years as a judge, theonly way I would not be struck would beif both lawyers assumed the otherwould. Whether that’s what happened orthe assumption was simply unfounded, Iwas wrong.

Of course, it wasn’t a convenient day.I’d told 42nd District Judge John Weeks atthe grocery store on Sunday that I hadovernight guests and didn’t know how

long they would stay on Monday. He saidI didn’t need to come, that he’d alreadyexcused a justice of the peace from thepanel. I assured him I wanted to come ifI could. He looked skeptical. “It’s acriminal case.” I was in my place thenext morning, number 26 out of a panelof 42.

Judge Weeks’ formal demeanor mademe feel that, perhaps, I keep the bantertoo light. While he solemnly reads therequirements, I feel it’s a cold panel if Ican’t get at least a chuckling murmurwith, “You have to be of sound mind andgood moral character, and if you’re not,please come tell me about it.” JudgeWeeks read the requirement as, “Youmust not have been convicted of a

Seen From Another ChairBByy JJuuddggee BBaarrbbaarraa BB.. RRoolllliinnssBByy CCoouunnttyy CCoouurrtt aatt LLaaww ##22,, AAbbiilleennee && TTaayylloorr CCoouunnttiieess

From Another Chair continued on page 10

4 In ChambersSpring 2002

Honors & Achievements for Texas Judges

making nneewwss

During a ceremony held December 19,2001, at South Texas College of Law’sGarrett-Townes Hall, the First Court ofAppeals unveiled the portrait ofJJUUSSTTIICCEE DD.. CCAAMMIILLLLEE HHUUTTSSOONN--DDUUNNNN, the first female justice to serveon the Court. After the ceremony, theportrait was installed on the wall of theFirst Court’s courtroom.

Justice Hutson-Dunn, the first womanto be elected to either of the two Houstoncourts of appeal, began her service on theCourt in January 1985 and served 12years before retiring in 1997.

During the ceremony, former membersof the Court of 1985, Chief Justice FrankEvans, Justices Jack Smith, Ben Levy,and Kenneth Hoyt shared remembrancesof Justice Hutson-Dunn's entry onto theall-male court. Everyone agreed thatJustice Hutson-Dunn was gracious andcaring, but that she also knew how tostick to her views and convince others ofher positions.

In October 2001, Texas CASA namedJJUUDDGGEE OOLLEENN UUNNDDEERRWWOOOODD “TexasCASA Judge of the Year.” Since 1991,the organization has honored variouschild advocates, including judges, fortheir leadership and contributions to theadvancement of children’s issues.

Colleagues supporting JudgeUnderwood’s nomination call him the“driving force” behind the developmentof CASA in Montgomery County. Morethan 10 years ago, Judge Underwoodrecognized the need to improve servicesfor abused and neglected children and

organized the individuals wholater established the county’sCASA program.

Judge Underwood’scommitment to children extendsbeyond his CASA involvement.For instance, Judge Underwooddeveloped the East TexasCluster Court in 1998 and theSoutheast Texas Cluster Courtin 2000 to hear Children’sProtective Services casesexclusively. While serving as ajuvenile judge, he also

established an on-site courtroom at thelocal juvenile detention facility.

Since 1981, Judge Underwood haspresided over the 284th District Court inMontgomery County. In 1996, then-Governor George W. Bush appointed himto serve as presiding judge of the 2nd

Administrative Judicial Region. InJanuary 2002, Governor Rick Perryappointed Judge Underwood to serve on

the Task Force on Indigent Defense.Judge Underwood is a graduate of theUniversity of Houston Bates College ofLaw and the University of Texas.

JJUUDDGGEE BBOONNNNIIEE SSUUDDDDEERRTTHH waselected president of the American JudgesAssociation (AJA) for the 2001–2002term. Previously, she served as theassociation’s governor, second vicepresident, first vice president, andpresident-elect. Judge Sudderth is onlythe third judge from Texas to serve aspresident of the AJA in its 42-yearhistory as a national association.

Since 1996, Judge Sudderth haspresided over the 352nd District Court inTarrant County. From 1990–1996, sheserved as Chief Judge of the City of FortWorth Municipal Court. Judge Sudderthis a graduate of the University of TexasSchool of Law and the University ofSouthern California. "

For publication in Making News, send yourannouncements to Morgan Morrison, PublicationsCoordinator (fax: 512-469-7664 or e-mail:[email protected]).

In December, the First Court of Appeals held a ceremonyto unveil Justice D. Camille Hutson-Dunn�s portrait.

Texas CASA honored Judge Olen Underwoodas its �Judge of the Year� in October 2001.

When I was in my first year ofjudging many years ago, Ihad a difficult private

custody case and thought it would beuseful to appoint a Court AppointedSpecial Advocate (CASA) as a volunteerguardian ad litem (GAL) for the child. Iasked the executive director of our localCASA to accept the appointment, but shetold me that CASA served only in childabuse and neglect cases brought by ChildProtective Services (CPS).

At the time, I was frustrated because itseemed to me that a child is a child, andif a child needs help, it should not matterwhether the case is a CPS case aboutchild maltreatment or a private caseabout child custody. With many moreyears of experience, however, I haveconcluded that a judge shouldnot—indeed cannot—appoint CASA asGAL in a private case about childcustody. In this short article, I hope tolead you to the same conclusion, and Iwill suggest some other options forprivate custody cases.

Purpose of CASAA judge founded CASA in 1976 torecruit, train, and supervise volunteeradvocates for abused and neglectedchildren. Communities across thecountry have replicated CASA, and thereare now almost 1,000 local programs.CASA’s primary mission is advocating forabused and neglected children independency or delinquency cases.CASA’s mission has never been to serveas the GAL for a child in the multitude of

contexts in which a child might need aGAL. Generally speaking, the men andwomen who volunteer to serve as CASAsdo so to work with abused and neglectedchildren; they do not volunteer to serveas GALs in private custody cases.

Funding of CASACASA operates through a combination ofpublic and private funds. The U.S.Congress in the Victims of Child AbuseAct of 1990 provided federal funds toexpand CASA so that a “court-appointedspecial advocate shall be available toevery victim of child abuse or neglect inthe United States that needs such an

advocate.” You can review thecongressional findings and provisions at42 U.S.C. Chapter 132, Subchapter Iand II. Congress funds CASA only toserve in abuse and neglect cases broughtby the state.

The Texas Legislature also fundsCASA only to serve abused andneglected children in cases brought bythe state. Chapter 264 of the FamilyCode, Child Welfare Services,Subchapter G, Court-AppointedVolunteer Advocate Programs, expresslyprovides that state financial support is for


Hon. Robert S. AnchondoCounty Crim. Ct. at Law #2, El PasoNew Court

Hon. Ken Anderson277th District Court, GeorgetownSucceeding Hon. John Carter

Hon. Jeffrey V. Brown55th District Court, HoustonSucceeding Hon. Sherry Radack

Hon. Jennifer Elrod190th District Court, HoustonSucceeding Hon. John Devine

Hon. Belvin R. Harris County Court at Law, GainesvilleNew Court

Hon. Sandee Marion4th Court of Appeals, San AntonioSucceeding Hon.Tom Rickhoff

Hon.Tom RickhoffProbate Court #2, San AntonioSucceeding Hon. Sandee Marion

Hon. Frank B. Rynd309th District Court, HoustonSucceeding Hon. Eva Guzman

Texas� Newest Administrators of JusticeAAss ooff MMaarrcchh 2200,, 22000022

Does CASA Have a Role in Private Custody Litigation?

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CASA continued on page 6

abused or neglected children who are thesubject of a suit affecting the parent-child relationship filed by agovernmental entity.

Some cities and counties also providemoney, invariably for assistance toabused and neglected children in CPScases. Likewise, private parties donate toCASA, again invariably to help abusedand neglected children in CPS cases.

Even with this support, however,CASA is still short on funds. CASAconstantly seeks funds to meet its goal ofrecruiting, training, and supervising avolunteer advocate for every abused andneglected child. Therefore, if a judgeappoints a CASA in a private custodycase, the judge is diverting resourcesintended for an abused and neglectedchild in a CPS case.

Of course, it may be that the child inthe private custody case is in adysfunctional family that needs help, butit is unlikely that the child’s situation isworse than that of all other children who

do not yet have a CASA on the CPSdocket. While a small number ofcounties may from time to time haveextra CASAs, most do not. So, in mostcounties, when a judge appoints a CASAin a private custody case, there will besome child in a CPS case who needs theCASA more and must go without.

Moreover, when a judge appoints aCASA in a private custody case, thejudge is using money for something forwhich it was not intended. While a CASAis a volunteer, considerable money isspent in recruiting, training, andsupporting the CASA, all of which isdiverted to an unintended use if theCASA works in a private custody case. Tomake this vivid, consider whether youwould appoint a juvenile probationofficer (JPO) to serve as a GAL in aprivate custody case. The answer is no,and one reason is that the juvenile boardhas not authorized its money to be spenton JPOs serving as GALs in privatecustody litigation. Likewise, theCongress, the Legislature, and other

public and private contributors to CASA have not authorized their money to bespent in private custody litigation.

Authority to AppointFurthermore, a judge has no authority toappoint a CASA to serve as GAL inprivate custody litigation. With regard tocourt appointments, Chapter 107 of theFamily Code provides for whom, when,and why. Under Family Code§107.031(a), the court may appoint avolunteer advocate on behalf of the childonly in “a suit filed by a governmentalentity,” which means only in a caseprosecuted by the state pursuant to theFamily Code such as a CPS case or ajuvenile case. Thus, the Family Codedoes not authorize the appointment of aCASA in a case prosecuted by privateparties such as a custody case.

Family Code §107.031(d) can bemisread as authorizing the appointmentof a CASA as a guardian ad litem in aprivate custody case, but a carefulreading establishes just the opposite:Subdivision (d) provides that when thecourt can appoint a CASA as a volunteeradvocate for a child pursuant tosubdivision (a), then the court can makethe CASA the guardian ad litem for thechild under §107.001. Put another way,under §107.031(d), the only time thecourt can appoint a CASA as a guardianad litem under §107.001 is when thecourt can likewise appoint the CASA as avolunteer advocate under §107.031(a),which is only in “a suit filed by agovernmental entity.”

Some have argued, however, thatFamily Code §107.001 by itselfauthorizes the appointment of a CASA asa GAL in a private custody case. Theirargument takes two different forms. First:Some argue that §107.001(c) authorizesthe judge to appoint a GAL in any suit,


CASA continued from page 5

PPRROOGGRRAAMM IITTIINNEERRAARRYY" Powers & Duties of the Board " of Disciplinary Appeals" Significant Decisions" Board of Disciplinary Appeals" Internal Procedural Rules" Discussion of Proposed Changes

Accredited by the State Bar of Texas MCLE Department for 2 hours of ethicscredit. Program is free�no registration fee. For more information, call the Boardof Disciplinary Appeals at 512-475-1578.

DDAALLLLAASSWednesday,April 109:30 a.m.�11:50 a.m.or

HHOOUUSSTTOONNWednesday, May 159:30 a.m.�11:50 a.m.

OPEN FORUMPPrreesseenntteedd bbyy tthhee BBooaarrdd ooff DDiisscciipplliinnaarryy AAppppeeaallss


The term “voir dire” is not Latin—it is Norman French. When the NormanWilliam (“The Conqueror”) defeated the Saxon Harold at Hastings in 1066,he took the French language to England. Henry II (r. 1154–1189), aPlantegenet, is considered the principal patron of the developing EnglishCommon Law. Henry and his royal court only spoke French. As the CommonLaw developed, at first in French, the words “voir” (to see) and “dire” (tosay) came to describe the jury selection process. The two words retain thesame spelling and meaning in contemporary French.

When Ignorant armies clashed on Hastings’ PlainThe darkling scene of Saxon sovereign slain;The Norman lengua franca then was heard,And the royal court eschewed the Saxon word.

A century more—Plantegenet arrived;The dulcet Latinate French yet thrived.Sovereign-sponsored English Common Law took rootIn French! And ‘tho’ ensuing years dilute,

Still lingered on the Norman form of speechIn words and manner, thus to teachThe lawyers, as they learned to speakOrnate prolixity oblique.

Magnificent bombast! Elegant twaddle!Better to obfuscate, confuse, and muddle.‘Tho’ in that ancient medieval processThe French gave way to English, nonetheless,

Some Norman words and terms yet do endureTo this good day; still, to be sure,Not many U.S. lawyers are awareOf this linguistic quirk hereditaire.

They think it’s Latin when they say voir dire;The law schools do not otherwise inspire.Oblivious of verbiage with Norman heritage,In mundane matters like abatement and coverage.

More obvious in words like garage and camouflage,But the noblest Norman noun of all is: “ppeerrssiiffllaaggee”!!Loquacious vacuity, meaningless chatter,Designed to entertain, mislead, and flatter.

Thus now is heard in English-speaking courtsThroughout the world, ubiquitous retorts;Specious banter, erratic badinage,The ancient legal art of persiflage. "

The Lawyers� ArtBByy JJuuddggee JJaammeess WW.. MMeehhaaffffyyBByy 5588tthh DDiissttrriicctt CCoouurrtt,, BBeeaauummoonntt

and then §107.001(d) authorizes the judge to appoint a GALunder §107.001 who is a “volunteer advocate appointed under§107.031.” This first argument fails, however, because it takesus back full circle. Yes, you can appoint a CASA as GAL under§107.001, but only when the CASA could also be appointed avolunteer advocate under §107.031, which is only in a “suitfiled by a governmental entity.”

Second: Some argue that a CASA can be appointed under the“another adult” provision of §107.001(d). When making suchan appointment, however, you are not appointing a CASA. Youare merely appointing an adult coincidently affiliated withCASA just as the adult is perhaps affiliated with Rotary. Thelocal CASA organization itself, however, should have no moreto do with the case than the local Rotary. If it does, then thelocal CASA exposes itself to potential civil liability.

Liability of CASAIf a volunteer advocate accepts an appointment as a CASA toserve as a GAL in a case in which a CASA has no authority toserve under §107.031, the advocate’s supervisor, the programdirector, the executive director, and the board of the localCASA are all at risk of civil liability for the recommendationsand opinions of the CASA. Under §107.031, the CASAprogram has qualified immunity from civil damages for arecommendation made or opinion rendered by a volunteer butonly when acting under §107.031. When a volunteer is notacting under §107.031, but is instead acting only under the“another adult” provision of §107.001, then the CASA programhas no qualified immunity. True, the volunteer would haveimmunity under §107.003 for service as a GAL, but only theindividual adult appointed as GAL, not the supervisor, programdirector, executive director, and board of the local CASA, whoif they supervise and support the GAL, might then becomeliable for the GAL recommendations and opinions.

Wisdom of AppointmentEven considering everything said so far, a judge might stillwell ask whether it would be a good idea to be able to appointa CASA volunteer as a GAL in a private custody case. Ajudge might well ask why the Family Code provides aguardian ad litem—whether a CASA volunteer or someoneelse—as a general rule in every CPS case, but does notprovide a GAL as a general rule in private custody litigation,and why CASA should not fulfill that role at least in theexceptional case. The answer is because of the difference in



Ethics Opinion Number 276

Judge Presenting CLE at PrivateLaw Firm

May a judge speak at an in-house CLEevent sponsored by a law firm? Theaudience will consist solely of employeesof the law firm.

No. It is the belief of the committee thatthe presentation by the judge of a CLEprogram for a private law firm violates 2Bof the Code of Judicial Conduct. Section2B prohibits a judge from lending theprestige of judicial office to advance theprivate interests of others. It alsoprohibits the judge from allowing anyoneto convey an impression that they are ina special position to influence the judge.

If the law firm allows any lawyer notaffiliated with the firm who wishes toattend the CLE event to do so withoutcharge, but does not publicize the event,change the answer?

No. The same reasoning as aboveapplies. With no invitations the CLEremains private.

A judge is invited by a local barassociation to speak at a CLE eventsponsored by the bar association. Memberscan attend at a reduced price from non-members. The judge is not receiving anymoney from the entry fee. By speaking atan event whose entry fee schedule

encourages membership in a barassociation, is the judge promoting theprivate interests of that group?

A judge may speak at such an event. Theevent is open to all lawyers and thereforeno one group of lawyers is benefittingfrom the event.

A judge is invited to speak at a CLE eventsponsored by a law school. The law schoolhopes to make money for their scholarshipfund by virtue of the quality speakers theyhave recruited for the event. The judgeknows this. By speaking at such an eventis the judge lending the prestige of office tothe private interests of the law school?

The judge may speak at the law schoolevent. Canon 4B allows a judge to speakand participate in activities concerningthe law. Canon 4C(2) allows a judge to bea speaker at an educationalorganization’s fund raising event.


May a Judge Sign an AffidavitCertifying an Attorney�s Legal Proficiency?

May a judge sign an affidavit attesting tothe competency of an attorney whopractices before the judge to be used in agrievance proceeding against the lawyer?

No. Canon 2B prohibits the lending of theprestige of judicial office to advance the

private interests of another and convey toothers the impression that the attorney isin a special position to influence thejudge. In addition, a judge is specificallyprohibited from voluntarily testifying as acharacter witness. The judge could testifyat the grievance hearing if subpoenaed.


May a Judge Accept anHonorarium from the JusticeDepartment for Reviewing Grant Applications?

A judge has been asked by the JusticeDepartment to review grant applications(VAWA, violence against women). TheJustice Department indicated they usejudges for this all the time and want topay the judge an honorarium. May thejudge take the honorarium?

No. Canon 4(B)(2) allows a judge to“make recommendations to public andprivate fund-granting agencies onprojects and programs concerning thelaw, the legal system, and theadministration of justice.” Canon 4(D)(4)prohibits a judge from accepting a gift,bequest, favor, or loan unless it is fromrelative or friend on a special occasion, itis not excessive and the donor has nointerest that might come before the Courtand there is no reasonable perception ofan intention to influence the judge. PenalCode Section 36.07 Acceptance ofHonorarium states that a public servant

ethics ooppiinniioonnss

Questions & Answers


commits an offense if he/she agrees toaccept an honorarium in consideration forservice that the public official would nothave been requested to provide but for thepublic servant’s official duties or position.

See Opinions 20, 86, & 215.


Judge Serving on Community Associations

May a judge serve as an officer of a non-profit neighborhood association? Thepurpose of the organization is to promotethe well-being of the neighborhood byrepresenting the interest of its residents inmatters of civic involvement, communityinteraction, security, and physicalimprovements of its environment. Servicewould not involve fund-raising. Theorganization has never been involved inlitigation.

Yes. A judge is permitted to serve as anofficer of a civic organization notconducted for profit provided the judgemay not use the prestige of judicialoffice to advance the private interest ofthe organization.

See Opinions 108, 144, & 152.

May a judge serve on a homeowner’scondominium board to help manage thebuilding where the judge owns acondominium?

Yes. For the same reasons as above.


May a Judge Serve in theDARE Organization?

1. May a judge serve as president of DARE(drug educational awareness orgs.)?

2. May the judge’s name be used on theletterhead used in fund raisingsolicitation so long as the judge is notactively involved in the fund raising?

3. May a judge handling criminal casesserve as DARE president when some fundsare used to help the local policedepartment or make civic speechesdescribing how DARE helps local DAREofficers?

No, to all the questions above. Service asa DARE official would reflect adverselyon the judge’s impartiality since part ofthe organizations purpose is to supportthe police and provide DARE officerswith funds.


May a Judge Serve of the Boardof the Houston VolunteerLawyers Program?

May a judge serve on the Board of theHouston Volunteer Lawyers Program, anorganization whose staff and volunteerattorneys appear as advocates in thejudge’s court? May a judge serve on theAdvisory Board in an ex officio advisorycapacity, not involved in decision orpolicy-making?

No, as to both questions. See Opinion270. Service in any capacity in anorganization whose staff appears in thejudges court violates Canon 2. Canon 2requires a judge to act at all times in away that promotes the public confidencein the judge’s impartiality. Canon 2further prohibits lending the prestige of

office to advance the private interest ofothers or to convey that others are in aspecial position to influence the judge.


May a Judge Participate in aConference Hosted by the TexasAssociation of DomesticRelations Officers?

May a family court judge speak and/orparticipate in an annual conferencehosted by the Texas Association ofDomestic Relations Officers?

Yes. Canon 4 allows a judge to speak orparticipate in activities concerning thelaw, the legal system, and theadministration of justice so long as suchparticipation does not cast doubt on thejudge’s capacity to decide any issue thatmay come before the court or interferewith the proper performance of judicialduties.


May an Appellate Court StaffAttorney Perform Pro BonoAppellate Work?

May an attorney employed at a stateintermediate appellate court perform probono work on a federal appeal when theissue appealed involves only a federalissue and no state, Texas or otherwise, hasconcurrent jurisdiction? May the sameattorney perform pro bono work on anappeal in another state?

No, to both questions. Canon 3 B (6), (8),(10) and 3C (2) require that appellantcourt staff attorneys are subject to the

Ethics Opinions continued on page 12

felony or of theft.” I chided him in my mind—until the recess when I ranupstairs to my chambers and pulled upWestlaw to find that there really isprecedent for that instruction, even ifit’s not statutory. I thought my lessonfrom the experience had been achievedand went back downstairs for theseating of the panel. When the bailiffcalled my name, I jerked.

For the next three and a half days, I satin the jury box and played musical chairswith another juror since after we hadsettled into “our” seats, she took mine. Atbreaks,I’d run upstairs, sign orders, andput out fires. Once, on the first day, I waslate returning to the jury room. After the42nd bailiff called mine who sent me

packing, the chuckles in the jury roomfinally broke the ice, and we began totalk other than in whispers. For the mostpart, the trial moved at an easy, efficientpace. Two problems arose, one over atape recording the defense introduced.The attorney set his handheld micro-cassette recorder on the rail and punched“play.” Besides an inadequate speakerfor that room, the condition of the tapemade hearing it totally impossible. Itseemed to have been stored near amagnet; on every trip around the reel, aninstant had been erased. With renewedobjections from the prosecution, JudgeWeeks sent us out. The ten minutesbecame thirty, then grew longer,eventually resulting in our being senthome for the evening. The next day, a

court reporter read maybe 40 lines fromthe whole 30 minute tape into the recordand we moved on.

The other lengthy break came whenJudge Weeks broke from his formalmanner at a cue from the D.A. and said,“I’m going to send you out. I need toargue with these guys for a while.” Again,the break stretched into hours bysegments, terminating in the testimony ofthe hairdresser who met the complainingwitness for the first time two days beforetrial, eighteen months after the offense.She identified the defendant andrecounted his conversational confessionalmost a year earlier.

I heard no complaints about the delaysas they occurred, but the bitternessobviously mounted in some jurors. Soonbefore the trial ended, one jurorcomplained of the lawyers’ making $200an hour while she couldn’t get her workdone waiting for them to get busy.

I recommend to you the experience ofjury service should it become available toyou. Until then, three nuggets gained willimprove my handling of juries. I’ll passthem on for your consideration:

! Jurors do understand what you find itnecessary to reiterate, but don’t catchwhat you assume they’ll retain fromrunning through the instructions.Repetition by the judge, by lawyers, orthrough witnesses, grows old quickly.Once something is said emphatically, ithas been received. The proscribedinstructions and explanations at the firstof the trial overwhelm, and those shouldbe restated once when appropriate. Theinstruction on Monday morning not toread coverage and the televised referenceto the conviction before punishmentbegan were not connected by the jurors.

! Some people really have difficulty


From Another Chair continued from page 3

Thank You,Texas CourtReporters Association

Sponsored by the Texas Court Reporters Association, the 2001 JudicialSection Annual Conference’s Silent Auction raised $10,000 for the TexasCenter for the Judiciary. Representing the Texas Court Reporters

Association, Ms. Judy Miller (far left) presents the auction proceeds check toHon. Mark D. Atkinson, 2001–2002 Judicial Section and Texas Center Chair,and Ms. Mari Kay Bickett, Executive Director of the Texas Center for theJudiciary. Thank you, Texas Court Reporters Association. "


Since it’s creation in 1851 to it’srenovation in 1997, the Texas StateCemetery has established itself as

one of the premier historical sites in thestate. Among those buried at theCemetery are Stephen F. Austin, RalphYarborough, Albert Sidney Johnston,Allan Shivers, John Connally, andBarbara Jordan.

Those wishing for internment need tomeet one of four requirements: (1) Be anelected official in the State of Texas; (2)Spend at least 12 years serving in aGovernor-appointed position; (3) Receivea Governor or Legislative proclamation;or (4) “Make a significant contribution tothe history of Texas.”

The Cemetery was founded in 1851when Andrew Jackson Hamilton, aRepresentative for the Republic of Texas,donated land in East Austin so that his

friend, Edward Burleson, could have anappropriate final resting-place. TheCemetery slowly increased in popularityin the coming years as heroes of the Warof Texas Independence and the Civil Warpassed on, including Abner Lipscomb,former Justice of the Texas SupremeCourt, Ben McCulloch, and WilliamHardeman. Hundreds of Confederateveterans—most of them former residentsat the Confederate Men’s Home—arealso buried here.

However, through the years, theCemetery fell into disrepair, and by the1990s, it was in need of extensive work.So, under the leadership of formerLieutenant Governor Bob Bullock, theCemetery underwent a major renovationfrom 1994–1997. Virtually everyheadstone on the grounds was cleaned,offices were built, and the Cemetery was

transformed into one of the finesthistorical sites in the state.

Now, the Cemetery is striving tobecome even greater. It recentlycelebrated its 150th anniversary and anew building will be finished in Marchthat will serve as a reception area forfamilies during funerals. The Cemetery isthe only site of its kind in the UnitedStates and will continue to make surethat it is among the most popularhistorical places of any kind. "

Texas State Cemetery

Many judges, including Abner Lipscomb and RoyalWheeler, members of the first Supreme Court of

Texas, are buried at the Texas State Cemetery.

making decisions. We, whose career isdeciding, forget the agony of making suchdrastic choices for some. The same jurorswho had difficulty with guilt, agonized onpunishment, wanting to rethink the firstdecision in making the second. Thesepeople need whatever support we cangive them in light of our placing them insuch a situation. Instructing them not todiscuss it with their support system,while necessary, substantially increasesthat burden.

! It’s tough to have “special knowledgeor information” and not pass it along.When we have a nurse on a panel dealingwith medical issues, a carpenter on oneaddressing negligent construction, or anelectrical engineer dealing with wiring,we should not only stress the instruction

to that person, but also point out to theother jurors it’s not appropriate to ask forthe assistance. I found a great manyissues dangling, inviting an education onthe judicial system. For these jurors, Icould not provide answers. For those inmy courtroom Monday, I intend to.

I’d often wondered about the reactionto formalistic questions such as, “Do youknow her reputation in the community fortruth and veracity?” Nobody mentionedit, even after hearing it repeated severaltimes with the curt answer and withoutfollow-up. They did, though, pick upnuances such as those that I’d oftenassumed to be lost on the jurors.

Once upon a time, each of us wasnaive, unaware of the evil around us,especially in our own communities.

Many, like me, remained ignorant of thedepravities possible among our neighborsuntil we began practicing law. By thetime we reach the bench, we may still beoffended by crime, but we’re no longersurprised by it. I’m aware in those trials,where the behavior nudges the edges ofmy own horror, to be aware the jurors mayjust be confronting their own naivete.Henceforth, I will be more completelyaware of that possibility in trials that feelmore mundane to me.

When a citizen sits in the jury box inour courtrooms, that person isperforming a significant service. Weshould stand in awe, not only of thesystem, but also of the individual jurorsthat make the system work. Theirsignificant role demands our respect. "

same ethical standards as the judge forwhom they work. Cannon 4G prohibits ajudge from practicing law except aspermitted by statute or this Code. Probono appellate work in a federal or sister-state requires the practice of law. NoCode sections provide an exception to theprohibition against practicing law underthe circumstances presented here.


May a Judge�s Spouse Host aFund-Raiser for a JudicialCandidate in the Judge�s Home?

May a judge’s spouse host a fund-raiser fora judicial candidate in the judge’s home?

No. A judge may not host, sponsor or givea fund-raiser in the judge’s home for ajudicial candidate. Canon 5 (3) statesthat a judge shall not authorize thepublic use of his or her name endorsinganother candidate for any public office.Canon 2 (B) prohibits lending theprestige of judicial office to others or toconvey the impression that someone is inthe special position to influence thejudge. A fund raiser for a judicialcandidate held in a judge’s home violatesall of these provisions.

While the Committee has long beencognizant of the independent nature ofspouses of judicial members, the hostingof the event at the Judge’s residencecrosses the line of permissible conduct.The public perception would be that theevent is being sponsored by the judge.

It would be permissible for the spouseof the judge to sponsor the event atanother location provided no reference tothe judge is made or implied.May a person who believes s/he may later

be appointed to a judicial position sponsora fund-raiser for a judicial candidate?

Yes, such a person could sponsor a fund-raiser for a judicial candidate. The Codeof Judicial Conduct only applies to sittingjudges or official judicial candidates.

See Opinions 73, 130, & 259.


May a Judge Contact the DistrictAttorney to Discuss the Conductof an Assistant District AttorneyAppearing in the Judge�s Court?

A judge is hearing a case in which anassistant district attorney is representingthe state interests in a case involvingChild Protective Services. Individualattorneys are representing the parents.May the judge hearing the case, after or

during temporary hearings or after thefinal hearing contact the district attorneyto advise him of the failure of the assistantdistrict attorney to properly prepare orhandle the court proceedings?

Yes, but only under limitedcircumstances. Canon 3B(8) providesthat a judge shall not initiate or permit exparte communications concerning themerits of a pending or impendingjudicial proceeding. Conversationbetween the Judge and the DistrictAttorney is permitted if it is confined toconduct of the assistant district attorney.If the conversation involves specifics of acase, it may only be done after the caseis final. "

To ask an ethics question, contact Judge SuzanneStovall, Past Chair of the Judicial SectionCommittee on Judicial Ethics, by telephone: 936-539-7808 or fax: 936-788-8364.

Registeronline!


Ethics Opinions continued from page 9

www.yourhonor.com

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CPS abuse cases and private custodycases in both kind and degree.

The cases are different in kind becauseof the different issues at stake. If a child’sparents are married, the law vests theparents with full authority to speak andplan for their child. If a child’s parentsare divorcing, and cannot agree withregard to their child, by necessity, ajudge must decide between theirrespective positions, but generallyspeaking, the law still vests in theparents the authority to speak and planfor their child. Thus, it is not appropriateto appoint a guardian ad litem merelybecause parents are divorcing.

In contrast, in a CPS case, the state isaccusing parents of abusing andneglecting a child, thereby losing theirpresumed right to speak and plan for thechild. Moreover, the child may well comeinto the care of the state, and in reality,the child may need protection from thestate as much as from the parents. Thus,the law provides a guardian ad litem toevery child in a CPS case.

Private custody cases and CPS casesare also different in degree. Generally,regardless how contentious and difficultcustody litigation becomes, the issues arenot as serious for the child in a CPS case.Sometimes, however, custody litigationwill be very serious and look much like aCPS case. In those exceptional cases, ajudge may appropriately appoint aguardian ad litem for the child. In such acase, however, a CASA volunteer is notthe right choice.

When a private child custody case is sodifficult and complex that it justifies theappointment of a GAL, then it is far toodifficult and complex to expect acommunity volunteer to effectivelyfunction as the GAL. Consistent with its

mission, CASA trains its volunteers toserve as child advocates in abuse andneglect cases brought by CPS, but doesnot train them to serve as GAL’s inprivate custody litigation. Indeed, CASAsupervisors and program directors haveno training for such a role either.

Training and experience are importantbecause the differences between servingas a child advocate in a CPS case andserving as a GAL in a private custodycase are considerable. The actors aredifferent with different roles. Theavailable community resources to helpthe family are often different in terms ofwhom, when, and how. Moreover, in aCPS case, the CPS caseworker and thedistrict attorney are generally helpful andhonest with the CASA, even if the CASAis not fully in agreement with the state. Incontrast, in a private custody case, theCASA volunteer has to function alone ina complex role for which the volunteer isuntrained and inexperienced.

Again, to make this vivid, considerwhether you would appoint a juvenileprobation officer to serve as a GAL in aprivate custody case. A JPO knows agreat deal about children, families, andcourts, but you have not trained yourJPOs to function as GALs in a privatecustody cases. CASAs are even lessprepared than JPOs. CASAs are not theright choice.

Options to CASAIf appointing CASA is not appropriate inprivate custody litigation, what is a judgeto do? First, for the philosophical reasonsexplained above, a judge needs to thinklong and hard about whether the childshould really have a GAL. Certainly, ajudge should not appoint a GAL merelybecause the custody decision is going tobe difficult and the judge wants some

other neutral person to decide. In somecases, though, the judge may need aneutral person to investigate andevaluate which parent should havecustody; in such a case, the judge canappoint an expert to make a custodyevaluation and testify without appointingthe expert as a GAL.

If after careful reflection, though, thejudge concludes that the child does needa GAL, then pursuant to §107.001(d), thejudge can appoint an attorney/guardianad litem trained and experienced infamily law. Pursuant to §107.015, thejudge can require the parties to pay theattorney, or if the case is one fortermination of parental rights, and theparents are indigent, the court canrequire the county to pay the attorney, orthe judge can ask the attorney to servepro bono (which is after all what a CASAwould be doing).

Another option is the professionalGAL. Chapter 203 of the Family Codeallows a county to establish a DomesticRelations Office to provide services tofamilies. Family Code §203.004(a)(6)expressly allows a DRO to serve as aGAL for a child in a custody case. Acounty can fund a DRO from fees andcharges as set out in the Family Code orfrom general revenue. A county does nothave to provide the full array of service,but can provide those services it chooses.

Some small counties may have aspecial resource problem. There may befew, if any, family mental health expertsto appoint for custody evaluations, andfew, if any, lawyers to appoint as A/GAL.There may be little or no money for aprofessional GAL. So, if CASA ismeeting the needs of all the CPS childrenin that small county, then why shouldCASA not branch out into serving as





in mmeemmoorriiaamm

Honorable Gene AterSenior District Judge70th District Court,Troup

Honorable Eva BarnesSenior District Judge322nd District Court, Fort Worth

Honorable Peter Michael CurrySenior District Judge & Former Presiding Judge166th District Court & 4th Region, San Antonio

Honorable H.F.�Hippo� GarciaSenior District JudgeWestern District of Texas, San Antonio144th District Court, San Antonio

Honorable John Ray Harrison, Sr.Senior District Judge113th District Court, Pasadena

Honorable Vernon HarvilleSenior District Judge105th District Court, Corpus Christi

Honorable Frank G. McDonaldChief Justice (Retired)10th Court of Appeals,Waco

Honorable Neil McKay Retired JudgeCounty Criminal Court at Law #5, Houston

Honorable Robert MurrayJustice (Retired)4th Court of Appeals, Fredericksburg

For Those Who Served Our State CourtsAAss ooff MMaarrcchh 1155,, 22000022

GAL in private custody cases? As notedabove, the problems with CASA inprivate custody cases is not just aresource issue. Regardless of resources,appointing a CASA in a private custodycase may be inappropriate as aphilosophical matter. Moreover, there arethe training, supervision, experience,and liability issues discussed.Fortunately, even small counties haveother options.

For example, even a very small countymight establish a DRO that consists ofnothing more than one person with amasters in social work or counseling

(even someone from out of town) whoserves as GAL in troublesome custodycases under a contract with the county.The county could pay the cost of such alimited DRO with the fees set out in§203.005(a). If one county does not haveenough cases for its own DRO, it mightjoin with several small counties toestablish a regional DRO. Withinnovative thinking, in those exceptionalcases where a GAL is needed, a countycan provide a professional GAL.

ConclusionWhile you may think that your localCASA program is happy to serve as GAL

in private custody cases, some localprograms report that they want to say“no” but are afraid to declineappointment for fear of disappointingtheir local judge who they very muchwant to support. While I know that judgeswant to do their best for all the childrenbefore the court, and while I appreciatethose local CASAs who want to supporttheir judge, I hope this article hasexplained the problems with CASAsserving as GALs in private custodylitigation and suggested better options.We need to keep CASA on taskadvocating for abused and neglectedchildren in CPS cases. "



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2002Family Violence ConferenceApril 14�16, 2002Dallas

Texas College for Judicial StudiesMay 19�24, 2002Austin

Advanced ComputersJune 3�4, 2002Midland

Professional Development ProgramJune 10�14, 2002Huntsville

Joint Ethics ProgramJuly 15�17, 2002San Antonio

Judicial Section Annual ConferenceAugust 25�28, 2002San Antonio

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