The 105th

BROWNSVILLE VOICE

2008-07-16T11:37:00.000-07:00

The law, which is relevant provides strict oversight by the judge.

"(l) Proceedings commenced under this chapter may not proceed to hearing unless the judge who is to conduct the hearing is satisfied that this article has been complied with and that the attorney representing the state will introduce into evidence at the hearing any answer received from an inquiry required by Subsections (c)-(h) of this article. "

Judge Banales like every other trained judicial monkey proved he would sign his own death warrant. Judge Banales’ willingness to sign anything without insuring strict compliance with the law is a major cause for the corruption which has Cameron County by the short hairs. It is time Governor Perry rethink Judge Banales’ appointment and demand his resignation. Oh, that is right, Governor Perry is in a permanent state of holding is knees at the command of Dannenbaum.

The law required that the BND be given notice of the lawsuit, and in fact served a copy of the lawsuit.

"Furthermore, Arambula didn't mind that District Attorney Armando Villalobos did not give BND notice of the intended forfeiture of $1 million from Dannenbaum's firm, perhaps stripping BND's right to claim the money for itself."

http://www.brownsvilleherald.com/news/bnd_86143___article.html/board_bridge.html

"This is cover-up Brownsville style - "we are so confident we can get away with it, we are going to announce it publicly." Any BND Board Member unwilling to demand a criminal investigation into how DA Villalobos secured the forfeiture without being able to name the source of the money, is not fit for public office. In my opinion a deal was cut to protect Dannenbaum from further exposure in exchange for 1 million dollars.

The State responded that it had no such evidence in its custody or control. ....yeah right, I guess the tape evidence is contrary to Huberts..........

2008-05-05T02:40:00.000-07:00

agenda. Control and custody of that tape would reveal John Hubert for the petty prevaricator he is.

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NUMBER 13-02-169-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

WILLIAM RAY GEARHART, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Kleberg County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo

The State indicted William Ray Gearhart, appellant, as a repeat felony offender for assaulting a public servant. Footnote On March 5, 2002, a jury convicted Gearhart and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Gearhart's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

Gearhart filed a pro se notice of appeal on March 8, 2002. In the notice, Gearhart complained about his trial counsel's representation. He asked the trial court to appoint appellate counsel to represent him. The trial court appointed new counsel for him on appeal. Gearhart's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. APPLICABLE APPELLATE RULES

The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gearhart's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on December 10, 2003 that includes the trial court's certification that Gearhart has the right of appeal. We now turn to the merits.

III. DISPOSITION

A. Anders Brief

Gearhart's original court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel certifies: (1) he diligently reviewed the record for reversible error; (2) he was unable to find any error that would arguably require reversal of the trial court's judgment; (3) in his opinion, the appeal is without merit; (4) he served a copy of the brief on Gearhart; and (5) he informed Gearhart of his right to review a complete copy of the appellate record and file a pro se brief on his own behalf. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the indictment, pre-trial motions, voir dire, opening statements, sufficiency of the evidence, jury charge, closing argument, and punishment phase. Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See id. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the “conclusory statement” decried by Anders. See id.

In response to counsel's brief, Gearhart filed a pro se brief. Gearhart's original appointed counsel withdrew while this appeal was pending. The trial court appointed substitute appellate counsel.

B. Pro Se Brief

Gearhart asserts he was falsely accused of assaulting a public servant, a police officer with the Kingsville Police Department. He maintains that after he filed an internal affairs complaint regarding the incident, he was retaliated against when the State arrested him again for filing a false report and charged him with aggravated perjury. Generally, Gearhart challenges the sufficiency of the evidence to support his conviction. He claims he was attacked, without provocation, by two Kingsville police officers. He denies he attacked one of the officers first. He cites to purported inconsistencies in the testimony at trial in support of his position. Gearhart also claims that the State did not present evidence of his prior conviction for assault on a public servant to support his conviction and resulting enhanced punishment as a repeat felony offender.

Gearhart also complains his trial counsel was ineffective. He argues that his trial counsel did not subpoena the videotape from the arresting officer's squad car or the audiotapes of an emergency call made by a witness, a clerk at the convenience store where the altercation took place. The tapes, Gearhart asserts, would have substantiated his version of events. Gearhart also alleges his counsel was ineffective by not objecting to the jury. He claims that jurors who indicated in voir dire they knew the prosecutor or his family ended up on the jury and that his trial counsel permitted venire members to remain on the jury despite Gearhart's instructions to the contrary. Further, Gearhart alleges his trial counsel was ineffective by not delivering a closing argument that challenged the testimony of the officer about an injury that the officer had not included in his original report of the incident. Finally, Gearhart complains that his trial counsel made an inappropriate remark to the prosecutor, after the jury retired to deliberate, reflecting counsel's belief that the jury would find Gearhart guilty.

C. Independent Review of the Record

Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christ 2002, no pet.).

1. The Indictment

The indictment properly alleges the offense of assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b), (d) (Vernon 2003). It also properly alleges three prior offenses as repeat felony offender enhancement. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gearhart did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). We find no arguable error in the indictment.

2. Pre-Trial Motions

The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.

3. Voir Dire

A review of the voir dire examination shows that sixteen venire members knew the prosecutor, a long-time resident of Kingsville, or his family. They all indicated they would consider the facts of the case and not base their decision on their knowledge of the prosecutor or his family. Neither the State nor Gearhart raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App.–Waco 2001, pet. ref'd). Further, the trial court did not limit Gearhart's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). We find no arguable error in voir dire.

4. Opening Statements

As a general rule, to preserve error for appellate review, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Each side presented opening statements. Neither side objected to the other's. Gearhart thus waived any error in the prosecution's opening statement. See Limas v. State, 941 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996, pet. ref'd) (finding waiver for failure to object to prosecutor's closing argument). We find no arguable error in the prosecution's opening statement.

5. Sufficiency of the Evidence

a. Standards of Review

(1) Legal Sufficiency

A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).

In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

(2) Factual Sufficiency

We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.

We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). If the accused did not have the burden of proof at trial, then the first or "manifestly unjust" standard applies. Id. If the accused had the burden of proof at trial, then the second or "against the great weight and preponderance" standard applies. Id.

In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

b. Sufficiency Analysis

(1) Legal Sufficiency

Viewing the evidence in the light most favorable to the prosecution and measuring it against a hypothetically correct jury charge, we find that the arresting officer testified to each of the elements of the offense of assault of a public servant. Gearhart struck the uniformed officer while the officer was in the process of detaining him in response to a public-disturbance complaint. Gearhart's assault bruised the officer and chipped his tooth. The convenience store clerk corroborated the officer's testimony. Gearhart stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Viewing the relevant evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime, including the repeat felony offender allegation. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.

(2) Factual Sufficiency

We view all the evidence neutrally, favoring neither the State nor Gearhart, and measure it against a hypothetically correct jury charge. Johnson, 23 S.W.3d at 6-7; Adi, 94 S.W.3d at 131. In addition to the arresting officer and convenience store clerk's testimony, Gearhart testified in his own defense. He admitted he had been drinking and had gotten into a disagreement with the clerk about getting free matches from the store. He admitted he had marijuana in his pocket. He denied assaulting the officer, however. Rather, he said the officer who testified and a second officer assaulted him without provocation. Finally, Gearhart admitted he had been convicted before for assaulting a public servant, although he stressed that the public servant he assaulted that time was a corrections officer, not a police officer. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gearhart, and with appropriate deference to the jury's credibility determinations, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 6-7.

Accordingly, we find no arguable legal or factual insufficiency of the evidence. 6. The Charge

Gearhart did not object to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh'g). We find no arguable egregious error in the charge. 7. Closing Argument

Neither party objected to the other's closing argument. Thus, Gearhart waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Limas, 941 S.W.2d at 203. We find no arguable error in the prosecutor's jury argument.

8. Punishment Phase

The record shows that Gearhart stipulated to the prior felony assault of a public servant in the culpability phase of the trial, which evidence supported his enhanced punishment as a repeat felony offender. To preserve any error in the punishment phase, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Gearhart did not object at sentencing on any basis. We find that he waived any challenge to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.

9. Ineffective Assistance of Counsel

The record contains no evidentiary support for Gearhart's claims of ineffective assistance of counsel. When the alleged ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex. Crim. App. 1994).

Accordingly, our independent review of the record finds that Gearhart's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App.–Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gearhart on appeal. We hereby order counsel to advise Gearhart promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.

ERRLINDA CASTILLO

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 11th day of December 2003.

A judge shall be patient, dignified and courteous to litigants,

2008-04-29T05:41:00.000-07:00

Local
Bañales shifts bond funds to husband's office
Couple: County must provide space for judge

By Dan Kelley (Contact)
Originally published 03:46 a.m., April 29, 2008
Updated 03:46 a.m., April 29, 2008
Bañales' vote, involvement do not appear to be conflict of interest, attorney says.
Bañales' vote, involvement do not appear to be conflict of interest, attorney says.

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Nueces County Commissioner Peggy Bañales voted to take $118,000 for roadwork in her precinct and spend it inside the courthouse instead -- on a new office for her husband, Judge J. Manuel Bañales.

The judge, who presides over the 105th District Court, had been appointed recently to the additional duty of presiding judge of the 5th Judicial District. In those two capacities, he now maintains two offices in the courthouse.

The Bañaleses said the county was obligated to provide an office for the presiding judge, and that the money would have had to come from somewhere.

"No matter where the money came from, the county would have to do it," Commissioner Bañales said.

The transfer occurred June 13 after Commissioner Bañales abstained from two other votes related to the renovation, one on March 21 and another April 17. She said she wanted to avoid the appearance of conflict of interest.

Behind the scenes however, she worked to secure funding.

And on June 13, when a vote to shift the money for the project came up, she was the second of two commissioners who called to bring the transfer to a vote.

Her vote and involvement do not appear to be a potential conflict of interest, according to the county attorney. Commissioner Bañales also said she voted for the transfer because it contained increased funding for other projects, such as the Richard M. Borchard Regional Fairgrounds.

Of the $165,000 used to renovate the judge's offices, about $118,000, came from 2004 bond funds earmarked to rehabilitate County Road 52 in Precinct 1, which is represented by Commissioner Bañales. Commissioner Betty Jean Longoria contributed about $40,000 from funds she controlled.

Each commissioner maintains a portion of the bond funds to be used in his or her district and each has control over that portion of the funds. Some have more than $1 million dollars left since the county issued the certificates of obligation.

When asked why he needed the second office, Judge Bañales said the county was obligated to provide an office for the presiding judge, and that the money would have had to come from somewhere.

Judge Bañales said he uses the office to have regular meetings with judges from across the region. He also uses the office for a committee that issues credentials for lawyers working in death penalty cases.

Commissioner Bañales said she used money slated for County Road 52 because another bond issue, from 2007, also included money for that road. She said other options to pay for the renovation included using money from the general reserve and taking money away from some other project.

"There was money available," she said. "It seemed that was the best solution."

Judge Bañales said he isn't the first presiding judge to have two offices -- two others who held the post in Edinburg and Brownsville also did.

"You have to keep in mind that the county is obligated to provide those funds, if it was for me or another individual," Judge Bañales said.

The judge estimated that he spends 20 percent to 30 percent of his time serving as presiding judge. Duties of that post include assigning cases to other judges in situations where another judge is ill or incapacitated, and presiding over situations in which a party in a lawsuit has asked a judge to step aside or recuse himself or herself from a case.

Judge Bañales also sits on the bench for civil and criminal trials in both Nueces and Kleberg counties.

The office has a kitchen, bathroom, and a large conference room where judges from several counties meet regularly.

Commissioner Bañales' vote likely is not a conflict of interest under Texas law. County officials generally are prohibited from voting on matters in which their close relatives have a financial or business interest, and this situation likely doesn't add up to a financial or business interest, County Attorney Laura Garza Jimenez said.

Bañales was appointed to a four-year term as presiding judge in January 2007.

He is the first judge from Nueces County to hold that post in more than 20 years.

Initially, Judge Bañales asked to house his new offices on the 10th floor of the courthouse, where the 13th Court of Appeals meets. He wanted to use office space the court of appeals wasn't using.

The Court of Appeals had other ideas.

A letter signed by six justices complained that locating Bañales on the 10th floor could allow visitors to his office to overhear the court's deliberations. It also would have ejected some of the court of appeals' staff.

By March, Judge Bañales had agreed to offices on the fifth floor.

Contact Dan Kelley at 886-4316 or kelleyd@caller.com.

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A judge shall be patient, dignified and courteous to litigants,

2008-04-17T14:54:00.000-07:00

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Code of Judicial Conduct
Office of Court Administration

Judicial Ethics | Judicial Conduct | Judicial Office | Judicial Ethics Opinions | Texas Ethics Commission

* Canon 1 A Judge Should Uphold the Integrity and Independence of the Judiciary.
* Canon 2 A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
* Canon 3 A Judge Should Perform the Duties of Office Impartially and Diligently.
* Canon 4 A Judge May Conduct the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.
* Canon 5 A Judge Should Refrain From Inappropriate Political Activity.
* Canon 6 A Judge Shall Comply with the Code of Judicial Conduct.
* Canon 7 Effective Date of Compliance
* Canon 8 Construction and Terminology of the Code.

Preamble

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges.They should also be governed in their judicial and personal conduct by general ethical standards.The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
CANON 1
Upholding the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.The provisions of this Code are to be construed and applied to further that objective.
CANON 2
Avoiding Impropriety and the Appearance of Impropriety In All of the Judge's Activities

A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow any relationship to influence judicial conduct or judgment A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

CANON 3
Performing the Duties of Judicial Office Impartially and Diligently

A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. Judicial duties include all the duties of the judge's office prescribed by law.In the performance of these duties, the following standards apply:

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.

(2) A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(3) A judge shall require order and decorum in proceedings before the judge.

(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.

(5) A judge shall perform judicial duties without bias or prejudice.

(6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

(7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others.This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control.This subsection does not prohibit:

(a) communications concerning uncontested administrative or uncontested procedural matters;

(b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties;

(c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;

(d) consulting with other judges or with court personnel;

(e) considering an ex parte communication expressly authorized by law.

(9) A judge should dispose of all judicial matters promptly, efficiently and fairly.

(10) A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected. A judge shall require similar abstention on the part of court personnel subject to the judge's direction and control.This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.This section does not apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity.

(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project.

C. Administrative Responsibilities.

(1) A judge should diligently and promptly discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(2) A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

(5) A judge shall not fail to comply with Rule 12 of the Rules of Judicial Administration, knowing that the failure to comply is in violation of the rule.

D. Disciplinary Responsibilities.

(1) A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.

(2) A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.

CANON 4
Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations

A. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or

(2) interfere with the proper performance of judicial duties.

B. Activities to Improve the Law. A judge may:

(1) speak, write, lecture, teach and participate in extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code; and,

(2) serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities.He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system and the administration of justice.

C. Civic or Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the profit of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly or frequently engaged in adversary proceedings in any court.

(2) A judge shall not solicit funds for any educational, religious, charitable, fraternal or civic organization, but may be listed as an officer, director, delegate, or trustee of such an organization, and may be a speaker or a guest of honor at an organization's fund raising events.

(3) A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

D. Financial Activities.

(1) A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.

(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business. A judge shall not be an officer, director or manager of a publicly owned business.For purposes of this Canon, a "publicly owned business" is a business having more than ten owners who are not related to the judge by consanguinity or affinity within the third degree of relationship.

(3) A judge should manage any investments and other economic interests to minimize the number of cases in which the judge is disqualified.As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other economic interests that might require frequent disqualification. A judge shall be informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to be informed about the personal economic interests of any family member residing in the judge's household.

(4) Neither a judge nor a family member residing in the judge's household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a family member residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

E. Fiduciary Activities.

(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties.

(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

F. Service as Arbitrator or Mediator. An active full-time judge shall not act as an arbitrator or mediator for compensation outside the judicial system, but a judge may encourage settlement in the performance of official duties.

G. Practice of Law. A judge shall not practice law except as permitted by statute or this Code. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.

H. Extra-Judicial Appointments. Except as otherwise provided by constitution and statute, a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.

I. Compensation, Reimbursement and Reporting.

(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's family.Any payment in excess of such an amount is compensation.

(2) Public Reports. A judge shall file financial and other reports as required by law.

CANON 5
Refraining From Inappropriate Political Activity

(1) A judge or judicial candidate shall not:

(i) make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;

(ii) knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or

(iii) make a statement that would violate Canon 3B(10).

(2) A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).

(3) A judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office.

(4) A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 253.155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.

COMMENT

A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge's impartiality to be reasonably questioned in the context of a particular case and may result in recusal.
CANON 6
Compliance with the Code of Judicial Conduct

A. The following persons shall comply with all provisions of this Code:

(1) An active, full-time justice or judge of one of the following courts:

(a) the Supreme Court,

(b) the Court of Criminal Appeals,

(c) courts of appeals,

(d) district courts,

(e) criminal district courts, and

(f) statutory county courts.

(2) A full-time commissioner, master, magistrate, or referee of a court listed in (1) above.

B. A County Judge who performs judicial functions shall comply with all provisions of this Code except the judge is not required to comply:

(1) when engaged in duties which relate to the judge's role in the administration of the county;

(2) with Canons 4D(2), 4D(3), or 4H;

(3) with Canon 4G, except practicing law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.

(4) with Canon 5(3).

C. Justices of the Peace and Municipal Court Judges.

(1) A justice of the peace or municipal court judge shall comply with all provisions of this Code, except the judge is not required to comply:

(a) with Canon 3B(8) pertaining to ex parte communications; in lieu thereof a justice of the peace or municipal court judge shall comply with 6C(2) below;

(b) with Canons 4D(2), 4D(3), 4E, or 4H;

(c) with Canon 4F, unless the court on which the judge serves may have jurisdiction of the matter or parties involved in the arbitration or mediation; or

(d) if an attorney, with Canon 4G, except practicing law in the court on which he or she serves, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.

(e) with Canons 5(3).

(2) A justice of the peace or a municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding.This subsection does not prohibit communications concerning:

(a) uncontested administrative matters,

(b) uncontested procedural matters,

(c) magistrate duties and functions,

(d) determining where jurisdiction of an impending claim or dispute may lie,

(e) determining whether a claim or dispute might more appropriately be resolved in some other judicial or non-judicial forum,

(f) mitigating circumstances following a plea of nolo contendere or guilty for a fine-only offense, or

(g) any other matters where ex parte communications are contemplated or authorized by law.

D. A Part-time commissioner, master, magistrate, or referee of a court listed in 6A(1) above:

(1) shall comply with all provisions of this Code, except he or she is not required to comply with Canons 4D(2), 4E, 4F, 4G or 4H, and

(2) should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a commissioner, master, magistrate, or referee, or in any other proceeding related thereto.

E. A Judge Pro Tempore, while acting as such:

(1) shall comply with all provisions of this Code applicable to the court on which he or she is serving, except he or she is not required to comply with Canons 4D(2), 4D(3), 4E, 4F,4G or 4H, and

(2) after serving as a judge pro tempore, should not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.

F. A Senior Judge, or a former appellate or district judge, or a retired or former statutory county court judge who has consented to be subject to assignment as a judicial officer:

(1) shall comply with all the provisions of this Code except he or she is not required to comply with Canon 4D(2),4E, 4F,4G, or 4H, but

(2) should refrain from judicial service during the period of an extra-judicial appointment not permitted by Canon 4H.

G. Candidates for Judicial Office.

(1) Any person seeking elective judicial office listed in Canon 6A(1) shall be subject to the same standards of Canon 5 that are required of members of the judiciary.

(2) Any judge who violates this Code shall be subject to sanctions by the State Commission on Judicial Conduct.

(3) Any lawyer who is a candidate seeking judicial office who violates Canon 5 or other relevant provisions of this Code is subject to disciplinary action by the State Bar of Texas.

(4) The conduct of any other candidate for elective judicial office, not subject to paragraphs (2) and (3) of this section, who violates Canon 5 or other relevant provisions of the Code is subject to review by the Secretary of State, the Attorney General, or the local District Attorney for appropriate action.

H. Attorneys.

Any lawyer who contributes to the violation of Canons 3B(7), 3B(10), 4D(4), 5, or 6C(2), or other relevant provisions of this Code, is subject to disciplinary action by the State Bar of Texas.

CANON 7
Effective Date of Compliance

A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it.
CANON 8
Construction and Terminology of the Code

A. Construction.

The Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges.It consists of specific rules set forth in Sections under broad captions called Canons.

The Sections are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct.It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.

B. Terminology.

(1) "Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action.

(2) "Should" or "should not" relates to aspirational goals and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.

(3) "May" denotes permissible discretion or, depending on the context, refers to action that is not covered by specific proscriptions.

(4) "De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.

(5) "Economic interest" denotes ownership of a more than de minimis legal or equitable interest,or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor or other active participant, in an educational, religious, charitable, fraternal, or civic organization or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; and

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

(6) "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.

(7) "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(8) "Law" denotes court rules as well as statutes, constitutional provisions and decisional law.

(9) "Member of the judge's (or the candidate's) family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship.

(10) "Family member residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides at the judge's household.

(11) "Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason.The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control.

(12) "Third degree of relationship."The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.

(13) "Retired Judge" means a person who receives from the Texas Judicial Retirement System, Plan One or Plan Two, an annuity based on service that was credited to the system.(Secs. 831.001 and 836.001,V.T.C.A. Government Code [Ch. 179, Sec. 1, 71st Legislature (1989)]

(14) "Senior Judge" means a retired appellate or district judge who has consented to be subject to assignment pursuant to Section 75.001, Government Code. [Ch. 359, 69th Legislature, Reg. Session (1985)]

(15) "Statutory County Court Judge" means the judge of a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, statutory probate courts, county criminal courts, county criminal courts of appeals, and county civil courts at law. (Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])

(16) "County Judge" means the judge of the county court created in each county by Article V, Section 15, of the Texas Constitution.(Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])

(17) "Part-time" means service on a continuing or periodic basis, but with permission by law to devote time to some other profession or occupation and for which the compensation for that reason is less than that for full-time service.

(18) "Judge Pro Tempore" means a person who is appointed to act temporarily as a judge.

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Updated: 30-Jan-2007

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http://www.courts.state.tx.us/Judethics/canons.asp

Rule 1.06 notes that "[i]f the lawyer's own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advi

2008-03-17T03:57:00.000-07:00

REFERENCES
PROCEDURAL & CONDUCT RULES
TEXAS PROFESSIONAL ETHICS OPINIONS

Texas Professional Ethics Opinions OPINION 571

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS

May 2006

QUESTION PRESENTED

Under the Texas Disciplinary Rules of Professional Conduct, may a prosecutor require as part of a plea agreement that a criminal defendant waive post-conviction appeals based on prosecutorial misconduct and ineffective assistance of counsel?

Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a criminal defendant's lawyer to advise the defendant regarding such an agreement, and if agreed to by the defendant, to sign the plea agreement along with the defendant?

STATEMENT OF FACTS

In the context of negotiating a plea agreement with a criminal defendant, and as a condition to the prosecutor's acceptance of the plea agreement, the prosecutor requires the criminal defendant to execute an agreement waiving post-conviction rights to appeal based on prosecutorial misconduct and ineffective assistance of counsel. Additionally, the prosecutor requires the criminal defendant's lawyer to sign the plea agreement containing these waivers of post-conviction rights to appeal.

DISCUSSION

The questions presented relate to numerous legal issues that may be involved in the enforceability and effect of waivers contained in plea agreements but that are not within the jurisdiction of the Committee. Because of the limited jurisdiction of the Committee, this opinion is necessarily limited to consideration of the applicability of the Texas Disciplinary Rules of Professional Conduct to the circumstances presented.

Prosecutor

Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct sets forth certain ethical standards for prosecutors in criminal cases. Rule 3.09(c) states that the prosecutor in a criminal case shall "not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights" (emphasis added). By its terms, Rule 3.09(c) prohibits a prosecutor from attempting to obtain a waiver of post-conviction rights from a criminal defendant who is not represented by counsel. In contrast, the criminal defendant in the circumstances here considered is and has been represented by counsel. In these circumstances, Rule 3.09 does not prohibit a prosecutor from requesting in a plea agreement a waiver of appeals based on prosecutorial misconduct or ineffective assistance of counsel.

Paragraphs (a) and (d) of Rule 3.09 provide that a prosecutor shall:

A violation of these requirements can constitute prosecutorial misconduct. While Rule 3.09 does not prohibit a prosecutor from including in a plea agreement a waiver of post-conviction appeals based on claims of prosecutorial misconduct or ineffective assistance of counsel, obtaining such a waiver in a plea agreement does not relieve the prosecutor from complying with the requirements of Rule 3.09. Further, the waiver does not exempt the prosecutor from disciplinary action for misconduct that violates the Texas Disciplinary Rules of Professional Conduct.

Defense Counsel

The Texas Disciplinary Rules of Professional Conduct impose on defense counsel no special constraints with respect to representation of a criminal defendant concerning a proposed plea agreement containing a waiver of appeals based on claims of misconduct by the prosecutor. However, with respect to a proposed waiver of appeals based on claims of ineffective assistance of the defendant's counsel, the requirements of Rule 1.08(g) and Rules 1.06(b) and 1.06(c) as applied to defense counsel must be considered.

Rule 1.08(g) provides in pertinent part that "[a] lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement . . . ." A plea agreement waiving post-conviction appeals based on ineffective assistance of counsel does not expressly limit the defense counsel's liability to the defendant for malpractice. Rather, the waiver is directed at arguments that might be made, on direct appeal, by habeas corpus or otherwise, in an effort by the criminal defendant to set aside the plea agreement and thus the conviction. Nevertheless, depending on the precise language of the plea agreement and the specific facts of a particular case, an attempt could be made to use or interpret the plea agreement waiver of rights to appeal based on a claim of ineffective assistance of counsel as an agreed limitation on defense counsel's liability for malpractice. In this opinion, the Committee assumes that in a malpractice dispute, upon a consideration of the relevant public policy concerns arising from the circumstances surrounding plea agreements and the nature of the relationship between a criminal defendant and criminal defense counsel, a court or other authority would not allow a waiver in the plea agreement to be used or interpreted as an agreement limiting a defendant's malpractice claim. Consequently, the Committee finds that Rule 1.08(g) does not prohibit a lawyer from advising a defendant regarding a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel. However, if such a plea agreement waiver were interpreted to be an agreement limiting a criminal defense lawyer's liability to the defendant for malpractice, Rule 1.08(g) would require that the criminal defendant be represented by separate counsel, at least with respect to considering and entering into the waiver relating to ineffective assistance of counsel.

Advising a defendant about a plea agreement that waives post-conviction appeals based on claims that the criminal defendant's lawyer rendered ineffective assistance would normally present for the lawyer conflict of interest issues that are governed by Rules 1.06(b) and 1.06(c). These Rules provide in pertinent part:

Depending upon the facts involved in each case, a criminal defense lawyer may or may not have a conflict of interest with respect to advising the defendant about a plea agreement containing a waiver of claims of ineffective assistance of counsel. In some cases, the defense lawyer may have no cause for any reasonable concern as to his effectiveness in representing the defendant. In such cases, the representation of the defendant as to the waiver would not reasonably appear to be adversely limited by the lawyer's interests; consequently, Rule 1.06(b)(2) would not prohibit the lawyer's representation of the defendant as to the waiver.

In other cases, if the lawyer has a reasonable basis for concern that he may have rendered ineffective assistance to the defendant, the lawyer's representation of the defendant as to the proposed plea agreement waiver may reasonably appear to be limited by the lawyer's own interest in not being found to have rendered ineffective assistance. Rule 1.06(b)(2) would then prohibit the lawyer's representation as to the waiver unless the requirements of Rule 1.06(c) can be met. In that circumstance, the lawyer would have to apply Rule 1.06(c)(1) and determine whether he reasonably believes that the representation of the defendant with respect to the plea agreement and waiver would not be adversely affected by the lawyer's own interests. In this regard, Comment 5 to Rule 1.06 notes that "[i]f the lawyer's own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advice." In some instances, a disinterested lawyer would conclude that the defendant should not agree to the lawyer's representation with respect to the proposed plea agreement waiver, in which case the lawyer should not ask for the defendant's consent to continue the representation as to the waiver. See Comment 7 to Rule 1.06.

In other circumstances, following a determination that the requirements of Rule 1.06(c) apply, the lawyer may reasonably believe after examination of the issue that the representation of the defendant as to the proposed plea agreement waiver will not be materially affected by the lawyer's own interests. In that case, Rule 1.06(c)(2) requires the lawyer to seek the consent of the defendant for the lawyer's representation concerning the waiver after full disclosure to the defendant of the facts and issues involved. In disclosure on this matter and in communications with the defendant generally, the lawyer is required under Rule 1.03(b) to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." In some cases, although the lawyer reasonably believes under Rule 1.06(c)(1) that the representation of the defendant will not be materially affected, it may be impossible to make the required full disclosure or to obtain informed consent from the defendant. For example, a lawyer may not be able to make the necessary disclosure because of duties owed to other clients, or the defendant may for some reason be unable to consider appropriately the question of giving consent after the lawyer's disclosure. In cases where consent after full disclosure is required but for whatever reason cannot be obtained, defense counsel may not advise the defendant as to a plea agreement waiver of appeals based on claims of ineffective assistance of counsel.

In summary, a criminal defense lawyer must consider the application of Rule 1.06 in each case involving a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel. In some cases, the criminal defense lawyer will be able to determine that there is no concern on the part of the lawyer as to the effectiveness of the lawyer's assistance to the defendant that would create a conflict of interest for the lawyer under Rule 1.06(b)(2). In that event, the lawyer may represent the defendant with respect to the plea agreement waiver. In other cases, the representation will be permitted after the lawyer's evaluation under Rule 1.06(c)(1) and disclosure and consent under Rule 1.06(c)(2). In other cases, a conflict of interest will exist within the scope of Rule 1.06(b)(2) and it will not be possible for the lawyer to meet the requirements of Rule 1.06(c). In that event, the defendant must be advised by separate counsel concerning the proposed waiver of post-conviction appeals based on claims of ineffective assistance of counsel.

CONCLUSION

The Texas Disciplinary Rules of Professional Conduct do not prohibit a prosecutor from including in a plea agreement a waiver of post-conviction appeals based on claims of prosecutorial misconduct or ineffective assistance of counsel. However, obtaining such a waiver does not relieve the prosecutor from complying with the requirements of Rule 3.09 and does not preclude discipline for misconduct that violates the Texas Disciplinary Rules.

Assuming that a waiver of claims of ineffective assistance of counsel in a plea agreement is not treated as an agreed limitation on possible future malpractice claims by the defendant against the lawyer, the Texas Disciplinary Rules of Professional Conduct do not prohibit a criminal defense lawyer from advising a defendant with respect to a plea agreement that contains a waiver of post-conviction appeals based on prosecutorial misconduct or ineffective assistance of counsel or from signing the plea agreement along with the defendant, provided that in the particular case the defense lawyer fully complies with the applicable requirements of Rules 1.06(b) and 1.06(c) with respect to any conflict of interest arising from the waiver of post-conviction appeals based on ineffective assistance of counsel.

Nueces Democrats: Hegemony: Power, Culture & Ideology: Lencho Rendon: The Pimping Out Of The President & Hillary

2008-03-03T10:35:00.000-08:00

Nueces Democrats: Hegemony: Power, Culture & Ideology: Lencho Rendon: The Pimping Out Of The President & Hillary:

"It is a simple choice, vote for Joe or vote for the Solomonista."

Community $upervi$ion $tatute$ Amended & MORE DOLLAR DOLLAR BILL$ for a CA$H COW!! Moooooooooooooo COW! …………..Moooooooooooooo COW!

2008-02-07T23:14:00.000-08:00

Art. 42.12	amended	HB 1634	3
Art. 42.12	amended	SB 1054	1
Art. 42.12 sec. 5	amended	HB 1634	1
Art. 42.12 sec. 8(a)	amended	HB 1180	1
Art. 42.12 sec. 9(l)	repealed	SB 1054	5
Art. 42.12 sec. 9(m)	repealed	SB 1054	5
Art. 42.12 sec. 11	amended	SB 1054	2
Art. 42.12 sec. 11(d)	amended	SB 1057	4
Art. 42.12 sec. 13(a)	amended	HB 3506	3
Art. 42.12 sec. 13(g)	amended	HB 3506	3
Art. 42.12 sec. 13B	amended	SB 1054	3
Art. 42.12 sec. 13B(a)	amended	SB 1054	3
Art. 42.12 sec. 14	amended	SB 1054	4
Art. 42.12 sec. 14(b)	repealed	SB 1054	6
Art. 42.12 sec. 14(e)	amended	HB 2424	63
Art. 42.12 sec. 15(a)	amended	HB 2668	1
Art. 42.12 sec. 15(c)	amended	HB 2668	1
Art. 42.12 sec. 19	amended	SB 146	1
Art. 42.12 sec. 19(f)	amended	HB 2424	64
Art. 42.12 sec. 19(g)	amended	SB 146	1
Art. 42.12 sec. 21	amended	HB 1634	2

Maybe the pervs should "get stoned"?

2008-01-01T03:00:00.000-08:00

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Published on Monday, May 28, 2001 in the San Francisco Chronicle
'Perv Onboard'
There is a Reason Why the Practice of Branding Criminals was Abandoned Centuries Ago
by Harley Sorensen

Why are all the best ideas coming out of Texas these days?

Ten days ago, a brilliant judge in Corpus Christi called about 55 registered sex offenders before him and abruptly changed the terms of their probation. He ordered 21 of them to put signs in their yards that read: "Danger! Registered Sex Offender Lives Here."

District Judge J. Manuel Banales also ordered the group to put bumper stickers on their cars reading: "Danger! Registered Sex Offender in Vehicle."

Wow! An updated version of the "scarlet letter." How novel. How progressive. Judge Banales's treatment ought to cut down sex crimes even more than registration of known sex offenders did. Or various Megan's Laws. Or Three Strikes laws.

But did the judge go far enough? Most sex offenders work. Shouldn't they also have signs placed at their workplace: "Caution. Sex offender washing dishes here"?

And they are notoriously religious. How about signs in front of their churches? "Take heed! Sex offender worshipping herein."

The gaps in Judge Banales's order are obvious.

Wouldn't it help of all sex offenders were required to wear distinctive clothing? My first instinct is to put the really weird ones in long, black, flowing robes, but that outfit has already been taken. How about pink bunny rabbit suits with Dr. Suess hats?

This is such a good idea it should be extended.

It doesn't seem fair to the rest of us that burglars aren't identified by warning signs. Wouldn't you be more careful about locking all your doors and windows and setting the alarm if you knew a burglar lived next door? Burglars need yard signs.

How about bad check writers? Is it fair to anyone trusting enough to take a check to not have the scam artist plainly identified in advance? Perhaps they should have c-h-e-k f-o-r-g-e-r tattooed across their knuckles.

Knowing the scourge of drugs in our communities (in spite of our government's valiant efforts in Peru to eradicate them), drug offenders' homes also should be clearly identified, lest an unsuspecting passer-by be stricken by an escaping puff of marijuana smoke, thus rendering him simultaneously silly and hungry.

By all means the homes of convicted prostitutes should be clearly marked, perhaps by means of a red light, so that staunch upright citizens (like myself, for instance) would know to walk on the other side of the street to avoid being lured unsuspectingly into unwanted and costly debauchery.

Ah, that Judge Banales is a genius. If only he would have taken the next step.

I have given this subject deep and prayerful consideration, and it seems to me that the yard-sign warnings should not be restricted to the homes of convicted criminals.

People in a civilized society should be given some clue, for instance, when they are approaching the presence of a registered politician. Or a district court judge of the caliber of J. Manuel Banales.

This is on the plus side, mind you. If you and I knew where politicians lived, if their homes were properly marked, we might be able to visit with them without first making sizable campaign contributions.

Police officers also should have their homes properly identified. What if there's a crime? To whom should you run for help, the cop up the block or the widow across the alley?

The cop, of course. But how can you, if you don't know he or she is there?

When it comes down to it, everybody should be identified by yard sign, uniform, tattoo, or whatever it takes. Wouldn't life be less complicated if, as you walked down the street, you could tell who lived in every house? Student. Hooker. Plumber. Retiree. Millionaire. Ne'er-do-well. Sex offender. Bank guard. Editor. Venture capitalist. Lawyer. Bus driver. Chronic liar. Politician.

Now I'm repeating myself.

SERIOUSLY, FOLKS ... in the off chance that Judge Banales is genuinely trying to protect children rather than make political hay, his order is of the type that seems good at first glance but has hidden negative consequences.

Most importantly, it will encourage vigilantism. Sex offenders are easy marks to begin with. Who likes them? They're quite often timid. Forcing these pathetic souls to humiliate themselves is sadistic and certainly invites trouble.

There is a reason why the practice of branding criminals was abandoned centuries ago.

In this case, the yard sign will hurt everybody who lives in the house, not just the convicted sex offender. And we can only imagine what it will do to real estate values. Would you buy a house next door to one with a sex-offender sign in front?

Contrary to popular belief, most convicted sex offenders are not of the compulsive type and do not repeat their crimes. If they did, our prisons would be jam-packed with sex offenders of advanced age. They are not.

The compulsive type should, if properly convicted, be locked up and given serious treatment. Unfortunately, our society hasn't shown any inclination that it really wants to "cure" compulsive sex offenders.

We either lock them up with no treatment at all or we put them in two-bit programs that are almost guaranteed to fail.

Our real concern is with child molesters, who are usually weak personalities who don't deal well with adults. Making them the objects of continued public ridicule and scorn helps no one.

The real danger with Judge Banales's order is that it might encourage the next molester to kill his victim to avoid the humiliation of getting caught. Polly Klass would probably be alive today if the man who kidnapped and killed her, Richard Allen Davis, wasn't terrified of getting caught and being returned to prison as a "baby raper."

We should never tolerate child molesters in our communities, but we should remember that, in the long run, draconian remedies create draconian criminals.

Our goal should be a safer society. Bullying weak men doesn't achieve that goal.

Harley Sorensen is a longtime journalist and iconoclast. His column appears Mondays.

©2001 SF Gate

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Nueces Democrats: EL Defenzor.net: Nueces Democrats: We dont know that Joe Benavides will make a better Commissioner than the incumbent

2007-12-30T23:55:00.000-08:00

EL Defenzor.net: We at the Defenzor wish to commend Joe Benavides for the efforts he has made over several years

EL Defenzor.net: Nueces Democrats: We dont know that Joe Benavides will make a better Commissioner than the incumbent

2007-12-30T23:32:00.000-08:00

EL Defenzor.net: Nueces Democrats: We dont know that Joe Benavides will make a better Commissioner than the incumbent

Sunday, December 30, 2007

JOE BENAVIDES

Joe Benavides a Retired Marine and Teacher Fighting for Our Children

Many in our community know Joe Benavides as not only a retired Marine and combat veteran, but a nonstop community volunteer. For the past several years Benavides has worked tirelessly helping our elderly by coordinating children (many of them court-ordered) to cut lawns, remove debris and help the elderly by taking away some of the burdens they face.

Now Benavides, is helping children by intervening through becoming a teacher. Benavides has done a remarkable job at the Adult Learning Center by helping children obtain their education. He has also worked with many community leaders and business owners such as Pete’s Chicken and More, Flint Hills, Valero, Greenwood Doors and many, many other leaders to provide support in saving our children. The drop out rate has nearly doubled over the last two decades in Texas. Many programs that were previously there to aid our children have been underfunded and the educational system is in crisis. Private citizens like Benavides have risen to the challenge and not only gotten children and parents involved in striving to complete their high school degree, but also to have the potential and financial wherewithal to attend college.

Education is Our Freedom is a well-recognized program spearheaded by Judge Joe A. Gonzalez and Joe Benavides. The program has aided over a hundred children who many in our community had given up on obtain not only their high school education but also attend college. The program has been such a success that funding and success rates have doubled each year since it inception. “We must help our children and pay for programs upfront. Whether you or a conservative or a liberal it is important to pay for preventative programs such as Education is Our Freedom in order to create a workforce that not only has education as a goal but that prepares today’s youth for the workforce tomorrow” said Benavides.

We at the Defenzor wish to commend Mr. Benavides for the efforts he has made over several years and also his sacrifices for his country. His eldest son has followed in his father’s footsteps and has answered the call to duty and is a two year Marine Corps veteran and is soon to be deployed to Iraq. Joe Benavides is a man that has never stopped sacrificing and never stopped serving our country. In this New Year we extend our warmest wishes to Joe Benavides and the efforts he is making with at-risk teens. IF ANYONE IN THE COMMUNITY WISHES TO HELP OUR YOUTH IN THESE PROGRAMS CONTACT JOE BENAVIDES AT 361-633-9308.

Posted by HOMERO VILLARREAL

Nueces Democrats: We dont know that Joe Benavides will make a better Commissioner than the incumbent

With this precinct I have not a vote however, the County Commissioners are engaged towards progress for our community as a whole.

Dannoynted1:

"Our Large Family attended the "Annual Feast of Sharing" event held at the Bayfront Plaza.

Joe Benavides was one of our servers (i believe he was a soft drink server), and Mrs.Banales also was there with her husband.

I will not talk about the burnt tamale(only I got) but lets just say the mashed potatoes were the best my man says the rolls were the best.

Considering it is election time, I am surprised most politicians were absent. But with the way they rushed you out after you ate, You certainly did not have any time to "network".

The candidates that did attend, I apologize for not mentioning you as I was there only a small window of time..."

It was so different from the last time I went, which with regret, was not last year.

I must say the food was better at the events that cost money."

JK:

We dont know that Joe Benavides will make a better Commissioner than the incumbent but I do know Joe was working and he volunteered out of his commitment to the community. Joe has over the years volunteered and donated his services diligently. One might argue he is only volunteering his time and services because he wants to "get elected".

I dont believe this is the case. I have known Joe for a little over two years and I know his father. In the past, Joe Benavides has run a couple of times for office but, he volunteers regardless of whether he is running or not.

Will Joe Benavides continue to volunteer if he wins?

We can only know after we vote for him.

We do know his incumbent opponent was not volunteering at the Feast of Sharing.

We do know Joe Benavides' incumbent opponent was parading around with her hubby in tow. Was she making a statement? The message IMO was she is not worried about her challenger, she does not take him serious and she is not going to change her routine ways for her constituents. We do not know how she represents her constituency but we do know she is not going to change it.

All we can do is allow Joe Benavides to tell us how is going to represent his constituents.

We can ask him questions and hear his answers.

With Joe Benavides' incumbent opponent we dont have to ask her anything because we have her record to refer to.

The only thing I remember is that, "She could work harder" if she gave herself a pay raise.

I also know she was walking around when she should have been working.

As far as the Family name and integrity, we might should ask the ME about the trangressions.

Ask her about the real reason she decided to run.

South Texas Judicial Watch Dog Authority: A Bill for the Creation of a Robstown Nueces County Constitutional Judge?

2007-11-15T00:15:00.000-08:00

Now, Dick Cheney can shoot who he pleases and whenever he chooses to; after all was not Bo Hubert (John John's Consanguinity) one of the ones who covered the incident up for the inebriated Dick ?

South Texas Judicial Watch Dog Authority: I submit the legislation to be illegal, unconstitutional and in violation of election codes, government codes and a circumvention of trickery to spite the failed legislation that attempted (and failed) to create a new Judicial district in Kleberg & Kenedy Counties.

Sen Bill 1951 of the 80th Leg: 1 District Court with 2 District Attorneys no where else but the 105
Posted on November 14, 2007 at 11:52:34 PM by Jaime Kenedeno

Isn't that like having 2 Attorney Generals for the same state.

Can a County elect 2 County Attorneys

Can a County have 2 County Attorneys for the same county.

ADA's & ACA's are not elected nor are they appointed to serve by the Governor.

I submit the legislation to be illegal, unconstitutional and in violation of election codes, government codes and a circumvention of trickery to spite the failed legislation that attempted to create a new district in Kleberg & Kenedy Counties.

The legislation that created the New District Attorney Position in Kleberg & Kenedy County must be challenged.

There is only one district.

There can only exist 1 District Attorney per District.

"Anything else, would be uncivilized"

Senate Bill 1951 of the 80th Legislature

Political Bigomy After All Karl Rove is From Utah
Posted on November 15, 2007 at 00:41:33 AM by Jaime Kenedeno

Is it not illegal for two to be espoused to one?

Think we can legislate another Congressional Rep for the 27th Cong Dist to help Solomon with the "backlog" of legislation in the applicable counties.

The precedent has been created get busy and start exploiting it.

A Robstown Nueces County Constitutional Judge?

Create a County Constitutional Judge's office for both Robstown & Calallen/Annavile, and get Gov. Rick Perry to give the nod to Patti or Randolph Boothe or Sam Keech as first County Constitutional Judge of Robstown & Calallen/Annaville.

Political Bigomy After All Karl Rove is From Utah
Posted on November 15, 2007 at 00:41:33 AM by Jaime Kenedeno

Is it not illegal for two to be espoused to one?

Think we can legislate another Congressional Rep for the 27th Cong Dist to help Solomon with the "backlog" of legislation in the applicable counties.

The precedent has been created get busy and start exploiting it.

A Robstown Nueces County Constitutional Judge?

Create a County Constitutional Judge's office for both Robstown & Calallen/Annavile, and get Gov. Rick Perry to give the nod to Patti or Randolph Boothe or Sam Keech as first County Constitutional Judge of Robstown & Calallen/Annaville.

Potential Juror 26........
Posted on November 15, 2007 at 00:59:29 AM by d1

was told "Just trying to stay out of trouble"....LIAR...because If you were "you lied"!

Go back to Iraq where they need your kind of prosecution......I forgot your Farsi/Arabic sucks.

"Your Honor, I'm gonna have to spend the rest of the summer in the library"

More like the rest of your life......Your hate is well documented as you can READ English, do you understand/comprehend English?

TLR/Totally Live Recognition........Now, Dick Cheney can shoot who he pleases and whenever he choices to.

With you in his pocket....no need to utilize Jaime Powell.

WATT is the Number of the Judicial District for this so called District Attorney
Posted on November 15, 2007 at 01:21:39 AM by Jaime Kenedeno

Sec. 43.182. DISTRICT ATTORNEY FOR KLEBERG AND KENEDY
COUNTIES. (a) The voters of Kleberg and Kenedy Counties elect a
district attorney. The district attorney has the same powers and
duties as other district attorneys and serves the district courts
of Kleberg and Kenedy Counties.
(b) The district attorney shall attend each term and session
of the district courts of Kleberg and Kenedy Counties and shall
represent the state in criminal cases pending in those courts. The
district attorney has control of any case heard on petition of writ
of habeas corpus before any district or inferior court in the
district.
(c) The commissioners courts of the counties comprising the
district may supplement the state salary of the district attorney.
The amount of the supplement may not exceed $12,000 a year. The
supplemental salary must be paid proportionately by the
commissioners court of each county according to the population of
the county. The supplemental salary may be paid from the officers'
salary fund of a county. If that fund is inadequate, the
commissioners court may transfer the necessary funds from the
general fund of the county.

The Legislation Failed but if you notice the language is the same
Posted on November 15, 2007 at 01:26:39 AM by Jaime Kenedeno

Sec.i24.567.ii423RD JUDICIAL DISTRICT (KENEDY AND KLEBERG COUNTIES). (a) The 423rd Judicial District is composed of Kenedy and Kleberg Counties.

(b)iiThe 423rd District Court shall give preference to criminal cases.

(c)iiIn addition to other jurisdiction provided by law, the 423rd District Court has concurrent jurisdiction with the county courts in Kenedy and Kleberg Counties and the statutory county court in Kleberg County over all matters of civil and criminal

3832 79th Legislature — Regular Session 79th Day

jurisdiction, original and appellate, in cases over which a county court has jurisdiction under the constitution and laws of this state. Matters and proceedings in the concurrent jurisdiction of the 423rd District Court and the county court or county court at law may be filed in either court and all cases of concurrent jurisdiction may be transferred between the 423rd District Court, the county court, and the county court at law. However, a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred, and a case may not be transferred unless it is within the jurisdiction of the court to which it is transferred.

(b)iiSection 24.207, Government Code, is amended to read as follows:

Sec.i24.207.ii105TH JUDICIAL DISTRICT ([KENEDY, KLEBERG, AND] NUECES COUNTY [COUNTIES]). (a) The 105th Judicial District is composed of [Kenedy, Kleberg, and] Nueces County [counties]. The court shall give preference to criminal cases.

(b)iiThe terms of the 105th District Court begin[:

[(1)iiin Kenedy County on the first Mondays in June and December;

[(2)iiin Kleberg County on the first Mondays in April and October; and

[(3)iiin Nueces County] on the first Mondays in February and August.

(c)iiThe judge, with the approval of the commissioners court, may appoint an official interpreter of the court [in Nueces County] who serves at the will of the judge. The official interpreter shall take both the constitutional oath of office and an oath that he will faithfully interpret all testimony in the district court as official interpreter. The oath is sufficient for his service as official interpreter in all cases in the court [in Nueces County] during the interpreter's term of office. The judge may also assign the official interpreter to assist the court's probation officer in the discharge of the probation officer's duties.

(c)iiThe heading to Section 43.148, Government Code, is amended to read as follows:

Sec.i43.148.iiKENEDY, KLEBERG, AND NUECES COUNTIES [105TH JUDICIAL DISTRICT].

(d)iiSubsections (a) and (c), Section 43.148, Government Code, are amended to read as follows:

(a)iiThe voters of Kenedy, Kleberg, and Nueces counties [the 105th Judicial District] elect a district attorney. The district attorney has the same powers and duties as other district attorneys and serves all the district, county, and justice courts of Nueces County and the district courts of Kleberg and Kenedy counties.

(c)iiThe commissioners courts of Kenedy, Kleberg, and Nueces [the] counties [comprising the district] may supplement the state salary of the district attorney. The amount of the supplement may not exceed $12,000 a year. The supplemental salary must be paid proportionately by the commissioners court of each county according to the population of the county. The supplemental salary may be paid from the officers' salary fund of a county. If that fund is inadequate, the commissioners court may transfer the necessary funds from the general fund of the county.

(e)iiThe local administrative district judge shall transfer all cases from Kenedy and Kleberg Counties that are pending in the 105th District Court on September 1, 2005, to the 423rd District Court.

Thursday, May 26, 2005 SENATE JOURNAL 3833

(f)iiWhen a case is transferred as provided by Subsection (e) of this section, all processes, writs, bonds, recognizances, or other obligations issued from the 105th District Court are returnable to the 423rd District Court as if originally issued by that court. The obligees on all bonds and recognizances taken in and for the 105th District Court and all witnesses summoned to appear in the 105th District Court are required to appear before the 423rd District Court as if originally required to appear before that court.

(g)iiThe 423rd Judicial District is created September 1, 2005.

SECTIONi7.ii(a)iiEffective January 1, 2007, Subchapter C, Chapter 24, Government Code, is amended by adding Section 24.569 to read as follows:

Failed Creation of the 423rd District

Why did they try to create the 423rd Judcial District?
Posted on November 15, 2007 at 01:36:58 AM by Jaime Kenedeno

Sounds like how Hitler thought

Did they think they needed a new Judicial District to create the new District Attorney position?

We have here in this situation a District Attorney without a Judicial District.

Tell me I am wrong and back it up, any takers?

when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others......

2007-10-31T02:41:00.000-07:00

This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity, my only event of today, to speak briefly to you about the mindless menace of violence in America which again stains our land and every one of our lives. It is not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one - no matter where he lives or what he does - can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on and on in this country of ours. Why? What has violence ever accomplished? What has it ever created? No martyr's cause has ever been stilled by an assassin's bullet. No wrongs have ever been righted by riots and civil disorders. A sniper is only a coward, not a hero; and an uncontrolled, uncontrollable mob is only the voice of madness, not the voice of reason. Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded. "Among free men," said Abraham Lincoln, "there can be no successful appeal from the ballot to the bullet; and those who take such appeal are sure to lose their cause and pay the costs." Yet we seemingly tolerate a rising level of violence that ignores our common humanity and our claims to civilization alike. We calmly accept newspaper reports of civilian slaughter in far-off lands. We glorify killing on movie and television screens and call it entertainment. We make it easy for men of all shades of sanity to acquire whatever weapons and ammunition they desire. Too often we honor swagger and bluster and wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of others. Some Americans who preach non-violence abroad fail to practice it here at home. Some who accuse others of inciting riots have by their own conduct invited them. Some look for scapegoats, others look for conspiracies, but this much is clear: violence breeds violence, repression brings retaliation, and only a cleansing of our whole society can remove this sickness from our soul. For there is another kind of violence, slower but just as deadly destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is the slow destruction of a child by hunger, and schools without books and homes without heat in the winter. This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all. I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies, to be met not with cooperation but with conquest; to be subjugated and mastered. We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community; men bound to us in common dwelling, but not in common effort. We learn to share only a common fear, only a common desire to retreat from each other, only a common impulse to meet disagreement with force. For all this, there are no final answers. Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of humane purpose that will recognize the terrible truths of our existence. We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of others. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge. Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanquish it with a program, nor with a resolution. But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment they can. Surely, this bond of common faith, this bond of common goal, can begin to teach us something. Surely, we can learn, at least, to look at those around us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.

Romeo Lomas said that technicians from the manufacturer of the voting machines, Election Systems and Software Inc. in Omaha, Neb., visited

2007-10-18T01:06:00.000-07:00

Friday, March 31, 2000
Kleberg to post revised race results after vote-count error

By Mary Lee Grant
Caller-Times

Candidates who thought they were winners and those who thought they had lost in April's primary elections will gather at the Kleberg County Clerk's office at 9 a.m. today to see the revised results.
Kleberg County officials said on Wednesday that they had discovered that 1,343 more ballots were counted than cast in the county's Democratic primary.
The discrepancy could affect the results of six local races including county commissioner races in precincts 1 and 3, constable races in precinct 1, 2 and 4 and the race for sheriff. Of the county's 30 precincts, 21 had ballot numbers that did not match.
Visiting Judge Darryl Hester issued a court order Thursday allowing for a recount of the ballots. District Judge J. Manuel Banales withdrew himself because he was on the ballot for the 13th Court of Appeals.
Kleberg County officials are still unsure how the ballots cast on March 14 were overcounted.
County Commissioner Romeo Lomas said that technicians from the manufacturer of the voting machines, Election Systems and Software Inc. in Omaha, Neb., visited Kingsville on Thursday and said that the over-count was due to human error.
"They said that someone entered the information more than once,'' Lomas said.
Lomas said he isn't ruling out the possibility of foul play.
Alicia Gamez, chief deputy for the county clerk's office, helped operate the machines election night and said she thinks the error occurred because the county didn't have the proper software to run the computers.
"There is an election reporting system that will prevent overstacking of the votes,'' Gamez said. "If you save it in a disc and reinsert the disc it prevents this from happening. They should have known we needed that software.''
But Todd Urosevich, vice president of customer services for Elections Systems and Software, Inc. said the overcount probably resulted from a procedural error.
"There was an incorrectly loaded disc moved from one scanner to the other,'' he said. "The equipment did what it was supposed to do, but proper procedures weren't followed.''
Urosevich said that on-site contract personnel who help counties use the computers were probably responsible for the mistake.
"In the county's defense, they were probably guided in the wrong direction by the person who was on site,'' he said.
Additional software
Urosevich said the approximately $12,599 software reporting package isn't required, but that most counties with multiple scanners have it.
The problem will be avoided in the recount because county personnel will use a single scanner, Urosevich said. He said similar mistakes have happened occasionally.
Lomas said that when the county purchased the machines, commissioners weren't told about the additional software.
"We thought we were buying the Cadillac of election machines, and we weren't told we needed additional software to safeguard them,'' Lomas said. "If we do need more software, we will buy it. We just aren't sure exactly what happened yet."
Recount results
On election night, two electronic scanners counted ballots at the county clerk's office. Ballots were fed into the two machines, which count at a rate of about 70 or 80 ballots a minute. The scanners read the ballots in four batches. First, they counted the early votes, and then counted the votes 10 precincts at a time.
Roberto Moreno, the county chair of the Democratic Party, has said it's unlikely that the recount will affect who comes out on top in the county's two runoff elections for county commissioner Precinct 1 and constable Precinct 2. But the second- and third-place candidates of those races could change, putting different candidates in the runoff on April 11. A change could leave a candidate with less than two weeks to campaign before voting begins.
Campaigning
The error was discovered by Melissa Trevino De La Garza, the tax-assessor collector and voter registrar, whose duties include comparing a list of those who voted to the number of ballots counted.
"Whoever brought this error to light should be commended,'' said Jane Dees, spokeswoman for the Texas Secretary of State's Office in Austin. "These sorts of things happen, but this was a little later than they usually happen. They did the noble and right thing. They are following correct procedure."
Dees said that the judge who granted the order has the authority to postpone the runoff election, but the county will still have to hold an election for the U.S. Senate race in April.
"If the recount changes the outcome, some candidates may not feel that two weeks is long enough to campaign," Dees said.
She said that election mistakes by humans and machines are common, but they are usually discovered within a few days of the election.
Gamez said there has been no trouble with the machines in the past.
Costly changes
Former Democratic Party Chairman Horacio "Hoss" Castillo, who helped oversee the election, said he was leery of the vote tallies election night, but not suspicious enough to question them.
"I was sort of surprised at the numbers, but I didn't really think anything was wrong,'' Castillo said.
He said the Democratic Party had the runoff ballots printed on Thursday, even though the party isn't certain who the candidates in the runoff will be.
"We had to do it,'' Castillo said. "Early voting starts Monday. I don't know what we will do if they are wrong.''
A change could cost thousands of dollars if new ballots need to be printed. If another countywide race, such as sheriff, has to be added to the ballot, it would cost about $4,000, party officials said.
County Commissioner Dewey Hubert said he had felt fairly secure going into the runoff with 57 percent of the vote in the primary. But now he isn't so sure.
"Who knows how it will affect the ballot?'' he said. "I'll just have to wait and see what happens. I don't like it, but there is nothing I can do about it."

If you must know.....ask Dave Chappelle,The writ will issue only if the trial court fails to comply. God when will UR "writ issue"?

2007-09-28T22:55:00.000-07:00

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NUMBER 13-07-405-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: CHRISTUS SPOHN HOSPITAL KLEBERG, ET AL.

On Petition for Writ of Mandamus

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Benavides

Memorandum Opinion by Justice Benavides

Relator, Christus Spohn Hospital Kleberg and Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Kleberg (collectively "Spohn"), has filed a petition for writ of mandamus asking this Court to compel the trial court to allow it to de-designate its expert witness, Nurse Kendra Menzies, and quash the deposition of Sandra Northcutt, the hospital's internal investigator. Based on the record and proceedings herein, we conclude that the trial court abused its discretion in refusing to allow Spohn to de-designate Menzies, but it did not abuse its discretion in failing to quash Northcutt's deposition. Accordingly, we conditionally grant, in part, and deny, in part, Spohn's petition for writ of mandamus.

Background

In the underlying medical malpractice lawsuit, Spohn mistakenly provided an internal investigative report written by employee Northcutt to its designated testifying expert witness, Menzies. The trial court did not allow Spohn to "snap-back" the document. Spohn contested this ruling through a petition for writ of mandamus with this Court, which was denied, and a further petition for writ of mandamus with the Texas Supreme Court. The Texas Supreme Court also denied the writ, holding that:

[T]he inadvertent nature of the production in this case preserved the privilege under Rule 193.3(d) and entitled the hospital to recover the documents upon realizing its mistake, provided the hospital's designated expert does not testify at trial. The hospital has not attempted to name another testifying expert, instead indicating an intent to rely upon the expert to whom the documents were disclosed. So long as the hospital stands upon its testifying expert designation, Rule 192's plain language and purpose and the policy considerations that surrounded its amendment compel the conclusion that the documents may not be snapped back. Accordingly, we deny the hospital's petition for writ of mandamus without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents.

* * *

We are sympathetic to the Hospital's concerns over losing valuable work-product protections when documents are produced to a testifying expert by mistake. But the producing party in such a situation is not without a remedy. An attorney who discovers that privileged documents have been inadvertently provided to a testifying expert may presumably withdraw the expert's designation and name another. Although such a course may entail additional expense and perhaps delay, these concerns do not outweigh countervailing concerns that require full disclosure from an expert who will testify. If leave of court is necessary for an alternative designation -- when, for example, the expert designation deadline has passed -- courts should carefully weigh the alternatives available to prevent what may be akin to a death-penalty sanction for the party forced to trial without a necessary expert. The Hospital did not pursue such a course in this case, however, and we voice no opinion on the trial court's discretion in that regard.

Finally, the Hospital contends that, even if discoverable for purposes of deposing Menzies, the Northcutt documents should otherwise retain their privilege and not be used for other purposes or at trial. Since Menzies has already been questioned about the documents, the Hospital argues, their discovery should be confined to that context. Specifically, the Hospital seeks to quash Sandra Northcutt's deposition, which has been postponed pursuant to the parties' agreement pending the outcome of this mandamus proceeding. We decline to opine on the potential admissibility of the Northcutt documents at trial, as that issue is premature. And in light of Rule 192.5(c)'s provision that information discoverable under Rule 192.3 "is not work product protected from discovery," we cannot say that the trial court abused its discretion in denying the Hospital's motion to quash Sandra Northcutt's deposition.

In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 435, 445 (Tex. 2007) (internal citation omitted). The supreme court issued its opinion on April 27, 2007, denying the petition without prejudice to any right the hospital might have to designate another testimony expert and recover the privileged documents. Id.

On May 8, Spohn filed a de-designation of Menzies and a motion to quash the deposition of Northcutt. On June 6, the trial court held a hearing on Spohn's motion to quash. After hearing argument, the trial court refused to allow the de-designation of Menzies, denied the motion to quash, and set a new docket control order under which discovery closed July 20, 2007, a pretrial hearing was set for August 23, and the case was set for trial on September 4.

Relator filed its petition for writ of mandamus on June 26. On June 27, this Court granted Spohn's motion for emergency stay and stayed all proceedings in the trial court, including the deposition of Northcutt, pending further order of this Court or until the case is finally decided. See Tex. R. App. P. 52.10(b).

Standard of Review

A writ of mandamus will issue to correct a trial court's clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). "[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion . . . ." Id. at 840. In addition to showing an abuse of discretion, the relator must show he has no other adequate remedy at law. Id. When an order requires the disclosure of information excepted from discovery, mandamus is appropriate because the remedy by appeal is inadequate. In re State Farm Mut. Auto. Ins. Co., 100 S.W.3d 338, 340 (Tex. App.-San Antonio 2002, orig. proceeding); Castellanos v. Littlejohn, 945 S.W.2d 236, 241 (Tex. App.-San Antonio1997, orig. proceeding).

The trial court is imbued with discretion to rule on matters related to discovery. Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998); Jampole v. Touchy, 673 S.W.2d 569, 574-75 (Tex. 1984). In matters committed to a trial court's discretion, the test is whether the trial court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Lopez v. Martin, 10 S.W.3d 790, 794 (Tex. App.-Corpus Christi 2000, pet. denied).

Applicable Law

"Texas Law permits a testifying expert to be 'de-designated' so long as it is not part of 'a bargain between adversaries to suppress testimony' or for some other improper purpose." Castellanos, 945 S.W.2d at 240; see In re State Farm Mut. Auto. Ins. Co., 100 S.W.3d at 340; Lopez, 10 S.W.3d at 794; In re Doctors' Hosp., 2 S.W.3d 504, 506 (Tex. App.-San Antonio 1999, orig. proceeding).

The policy underlying the discovery rules is to seek the truth so that disputes may be decided by facts that are revealed rather than concealed. Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 560 (Tex. 1990) (orig. proceeding); Rendon v. Avance, 67 S.W.3d 303, 309 (Tex. App.-Fort Worth 2001, orig. proceeding). A de-designation is ineffective where it violates the policy underlying the rules of discovery. McIlhany, 798 S.W.2d at 560. The protection afforded by the consulting expert privilege is intended to be only a shield to prevent a litigant from taking undue advantage of his adversary's industry and effort, not a sword to be used to thwart justice or to defeat the salutary objects of discovery. Id.

Analysis

In the instant case, the record before us is devoid of evidence that Spohn's attempted de-designation was part of "a bargain between adversaries to suppress testimony" or was made for some other "improper" purpose. See Castellanos, 945 S.W.2d at 240. And as previously discussed, the Texas Supreme Court denied Spohn's previous mandamus "without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents." In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 435. With this directive and without additional evidence, we must conclude that the trial court abused its discretion in failing to allow the de-designation of Menzies. See id.

We reach a different conclusion, however, with regard to the trial court's refusal to quash Northcutt's deposition. The Texas Supreme Court considered and addressed this issue in its opinion and concluded that "[I]n light of Rule 192.5(c)'s provision that information discoverable under Rule 192.3 'is not work product protected from discovery,' we cannot say that the trial court abused its discretion in denying the Hospital's motion to quash Sandra Northcutt's deposition." See id. at 445. We reach the same conclusion herein.

Conclusion

The petition for writ of mandamus is conditionally granted, in part, and denied, in part, as described herein. We direct the trial court to vacate its order denying the de-designation of Menzies. The writ will issue only if the trial court fails to comply.

___________________________

GINA M. BENAVIDES

Justice

Memorandum Opinion delivered and

filed this the 26th day of September, 2007.

Thomas Callaghan.........

2007-09-28T00:07:00.000-07:00

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Page 1
NO. 04-0914
_____________________________________________
IN THE
SUPREME COURT OF TEXAS
____________________________________________
IN RE: CHRISTUS SPOHN HOSPITAL KLEBERG, CHRISTUS SPOHN
HEALTH SYSTEM CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL
KLEBERG
____________________________________________
On Petition for Writ of Mandamus from the 105th Judicial District Court
Kleberg County, Texas
Cause No. 03-053-D
____________________________________________
REAL PARTIES IN INTEREST’S BRIEF ON THE MERITS
____________________________________________
Todd Taylor, TBA #00785087
Mike Johanson, TBA#10670400
Chris M. Volf, TBA #24033299
J
OHANSON
& F
AIRLESS
, L.L.P.
1456 First Colony Boulevard
Sugar Land, TX 77479
281-313-5000 Main/281-340-5100 Fax
COUNSEL FOR REAL PARTIES IN INTEREST
Page 2
ii
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons have an
interest in the outcome of this case. These representations are made in order that the Justices
of this Court may evaluate any possible disqualifications or necessary recusals.
1.
Christus Spohn Hospital Kleberg,
Christus Spohn Health System Corporation d/b/a
Christus Spohn Hospital Kleberg . . . . . . . . . . . . . . . . . . . . Relators/Defendants
Counsel for Relators
F. EDWARD BARKER, TBA#01741000
STEPHEN J. CHAPMAN, TBA#24001870
B
ARKER
, L
EON
, F
ANCHER
& M
ATTYS
, L.L.P.
555 North Carancahua, Tower II-Suite 1200
Corpus Christi, Texas 78478
(361)-881-9217; Fax (361)-882-9437
DEBORAH R. SUNDERMANN, TBA#19511900
711 N. Carancahua, Suite 512
Corpus Christi, Texas 78475
(361)-882-0101; Fax (361)-882-0111
2.
Dr. Benjamin Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant
Counsel for Defendant
DOUGLAS M. KENNEDY, TBA#11284600
SIMON B. PURNELL, TBA#24003889
B
RIN
& B
RIN
, P.C.
1202 Third Street
Corpus Christi, Texas 78404
(361)-881-9643; Fax (361)-883-0506
Page 3
iii
3.
The Honorable J. Manuel Banales . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
THE HONORABLE J. MANUEL BANALES
c/o Ms. Martha Soliz, District Clerk
105th Judicial District Court of Kleberg County, Texas
Kleberg County Courthouse
P.O. Box 132
Kingsville, Texas 78364
(361)-595-8561; Fax (361)-595-8525
4.
Mona L. Palmer, Individually, and as Surviving Parent,
and on behalf of the Estate of Brandi Lee Palmer, Deceased
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Real Parties In Interest/Plaintiffs
Counsel for Real Parties In Interest
TODD TAYLOR, TBA #00785087
MIKE JOHANSON, TBA #10670400
CHRIS M. VOLF, TBA #24033299
J
OHANSON
& F
AIRLESS
, L.L.P.
1456 First Colony Blvd.
Sugar Land, Texas 77479
(281)-313-5000; Fax (281)-340-5100
Page 4
iv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.
THE TRIAL COURT’S DECISION THAT RELATORS WAIVED
ANY AND ALL PRIVILEGES TO THE DOCUMENTS IN
QUESTION IS CORRECT UNDER ALL RELEVANT
AUTHORITIES AND PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.
The Plain Language Of The Texas Rules Of Civil Procedure
Dictates That Relators Waived Any And All Privileges
Pertaining To The Documents In Question When The
Documents Were Provided To, Reviewed By, Or Prepared By
Or For Relators’ Testifying Expert . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B.
The Trial Court’s Decision Is Consistent With The Established
Precedents Of Other Jurisdictions Faced With Similar
Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C.
The Trial Court’s Decision Is Consistent With The Majority Of
Authorities Analyzing This Issue Under The Federal Rules of
Civil Procedure And Is Supported By Strong Public Policy
Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Page 5
v
D.
Any Objections Pertaining To The Documents In Question,
Which Were Provided To, Reviewed By, Or Prepared By Or For
Relators’ Testifying Expert, Should Be Limited To Objections
Regarding Admissibility At Trial, And Such Objections Are
Premature And Not Before This Court . . . . . . . . . . . . . . . . . . . . . . 30
E.
Relators’ Reliance Upon Rule 193.3(d) Of The Texas Rules Of
Civil Is Misplaced Under The Facts And Circumstances Of This
Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
F.
Relators Failed To Satisfy Their Burden To Avoid Discovery Of
The Alleged Confidential And Privileged Documents. . . . . . . . . . 33
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
APPENDICES:
Appendix “1”:
State ex rel. Tracy v. Dandurand,
30 S.W.3d 831 (Mo. banc 2000) . . . . . . . . . . . . . . . . 1
Appendix “2”:
Gall v. Jamison,
44 P.3d 233 (Col. 2002) . . . . . . . . . . . . . . . . . . . . . . . 2
Appendix “3”:
T
EX
. R. C
IV
. P. 192.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Appendix “4”:
T
EX
. R. C
IV
. P. 192.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Page 6
vi
INDEX OF AUTHORITIES
Texas Supreme Court Cases:
Page(s)
Axelson, Inc. v. McIlhany,
798 S.W.2d 550 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Jordan v. Fourth Court of Appeals,
701 S.W.2d 644 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Lindsey v. O’Neill,
689 S.W.2d 400 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
State v. Lowry,
802 S.W.2d 669 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18, 33
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Weisel Enterprises, Inc. v. Curry,
718 S.W.2d 56 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Texas Courts of Appeal Cases:
Aetna Cas. & Sur. Co. v. Blackmon,
810 S.W.2d 438 (Tex. App.–Corpus Christi 1991, orig. proceeding) . . . 11, 34, 35
In re Bell Helicopter Textron, Inc.,
87 S.W.3d 139 (Tex. App.–Forth Worth 2002, orig. proceeding) . . . . . . . . . . . . 29
In re Family Hospice, Ltd.,
62 S.W.3d 313 (Tex. App.–El Paso 2001, orig. proceeding) . . . . . . . . . . . 9, 10, 12
Page 7
vii
INDEX OF AUTHORITIES (Cont.)
Page(s)
Texas Rules of Civil Procedure:
T
EX
. R. C
IV
. P. 166b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
T
EX
. R. C
IV
. P. 192.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
T
EX
. R. C
IV
. P. 192.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
T
EX
. R. C
IV
. P. 193.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
T
EX
. R. C
IV
. P. 194.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 30, 32
T
EX
. R. C
IV
. P. 194.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
T
EX
. R. C
IV
. P. 203.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30
Other State Cases:
Gall v. Jamison,
44 P.3d 233 (Col. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
State ex rel. Am. Econ. Ins. Co. v. Crawford,
75 S.W.3d 244 (Mo. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
State ex rel. Tracy v. Dandurand,
30 S.W.3d 831 (Mo. banc 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Stearrett v. Newcomb,
521 A.2d 636 (Del. Super. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Page 8
viii
INDEX OF AUTHORITIES (Cont.)
Page(s)
Federal Cases:
Boring v. Keller,
97 F.R.D. 404 (D. Colo. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Davis v. Alaska,
415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Federal Rules of Civil Procedure:
F
ED
. R. C
IV
. P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 27
Secondary Authority:
C
HARLES
P
ANATI
,
Words To Live By 28 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
S
TEPHEN
D. E
ASTON
,
A
MMUNITION FOR THE
S
HOOT
-O
UT WITH THE
H
IRED
G
UN
’
S
H
IRED
G
UN
: A P
ROPOSAL
FOR
F
ULL
E
XPERT
W
ITNESS
D
ISCLOSURE
,
32 Ariz. St. L. J. 465 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Page 9
ix
STATEMENT OF THE CASE
Nature of the Case:
This is a wrongful death and survival lawsuit that was brought by Real Parties In
Interest against Dr. Benjamin Moore and Relators following the untimely,
unnecessary, and tragic death of a 17 year old child (i.e., Brandi Lee Palmer).
By their lawsuit, Real Parties In Interest assert various claims for negligence and
gross negligence in connection with the medical and nursing treatment, or lack
thereof, surrounding Brandi Lee Palmer.
Trial Court:
The Honorable J. Manuel Banales, 105th Judicial District Court of Kleberg County,
Texas.
Trial Court’s Disposition:
On August 31, 2004, the Honorable J. Manuel Banales held that Relators waived any
and all privileges that might have applied to certain documents that were provided to,
reviewed by, or prepared by or for one of Relators’ testifying experts in anticipation
of the expert’s deposition testimony and/or in preparation of the expert’s report.
As such, the Honorable J. Manuel Banales OVERRULED Relators’ Objection and
Assertion of Privilege Pursuant to TRCP 193.3(d). (Relators’ Record [“R.R.”] at 0.)
Parties in the Court of Appeals:
Same as here.
Court of Appeals:
Court of Appeals for the Thirteenth District of Texas, Corpus Christi; Chief Justice
Valdez, joined by Justice Rodriquez and Justice Wittig, authored an unpublished, per
curiam memorandum opinion covering the mandamus. (R.R. at S.)
Court of Appeals’ Disposition:
Page 10
x
DENIED. On September 27, 2004, the Court of Appeals for the Thirteenth District
of Texas denied the Verified Petition for Writ of Mandamus and lifted the stay
associated with same.
ISSUE PRESENTED
I.
In Texas, a party is obligated to disclose and/or produce all documents, reports, or
tangible items “provided to, reviewed by, or prepared by or for the expert in
anticipation of a testifying expert’s testimony.” The trial court held that Relators
waived any and all privileges that might have applied to documents that were
provided to, reviewed by, or prepared by or for one of Relators’ testifying experts.
Did the trial court correctly determine that Relators waived their claims, if any, of
attorney-client, work product, anticipation of litigation, and/or other privileges when
certain documents were provided to, reviewed by, or prepared by or for one of
Relators’ testifying experts in anticipation of the expert’s deposition testimony and/or
in preparation of the expert’s report?
Page 11
-1-
STATEMENT OF FACTS
This is a wrongful death and survival lawsuit that was brought by Real Parties In
Interest against Dr. Benjamin Moore and Relators following the untimely, unnecessary, and
tragic death of a 17 year old child (i.e., Brandi Lee Palmer [“Brandi”]). By their lawsuit,
Real Parties In Interest assert various claims for negligence and gross negligence in
connection with the medical and nursing treatment, or lack thereof, surrounding Brandi.
(R.R. at A, B.) Specifically, Real Parties In Interest contend that Dr. Benjamin Moore and
Relators deviated from the appropriate standards of care in their treatment, or lack thereof,
of Brandi, which lead, ultimately, to her tragic death, and caused Real Parties In Interest to
suffer life’s greatest loss; the loss of a child. (Id.)
After Dr. Benjamin Moore and Relators were served and appeared in this case, and,
over the course of the next year and a half, the parties conducted detailed discovery,
including, but not limited to, numerous depositions regarding both liability and damages.
Then, on August 16, 2004, Real Parties In Interest noticed the deposition of Kendra Menzies,
RN, MS, CCRN, CNRN (“Nurse Menzies”) (i.e., one of Relators’ testifying experts), and,
along with the notice of deposition, served a subpoena duces tecum on Relators. (R.R. at F.)
In the subpoena duces tecum, Real Parties In Interest requested production of, among other
things, “[a]ll letters, correspondence, records, documents, reports, investigative material,
Page 12
-2-
depositions, pleadings, photographs or any other form of written document furnished to
[Nurse Menzies] in connection with [her] consultation in this lawsuit.” (Id.) Additionally,
Real Parties In Interest requested production of “[a]ll letters, correspondence, records,
documents, reports, investigative material, depositions, pleadings, photographs or any other
form of written document reviewed by[Nurse Menzies] in connection with [her]consultation
in this lawsuit.” (Id.) (emphasis added). Further, Real Parties In Interest requested
production of “[a]ll records and/or documents which form a basis, either in whole or in part,
of any opinions, impressions, conclusions or findings that [Nurse Menzies] [has] made in
connection with [her] consultation herein.” (Id.) (emphasis added).
Prior to the beginning of Nurse Menzies’ deposition, Relators produced various
documents responsive to the subpoena duces tecum without objection or generation of a
privilege log. (R.R. at W.) To the surprise and disappointment of Real Parties In Interest,
and, despite previous completion of extensive discovery, numerous documents, including,
but not limited to, (1) Relators’ policies and procedures regarding the treatment of patients
with symptoms similar to those of Brandi, (2) Relators’ triage policies and guidelines for its
nurses, (3) personnel files of several key witnesses, including, but not limited to, Relators’
treating nurse, Nurse May Alonzo, (4) investigative reports, and (5) correspondence, which
included the identities of several other, previously unidentified persons with knowledge of
relevant facts, surfaced, for the first time, at the deposition of Nurse Menzies. (Id.) In fact,
at least one of the documents reveals that Relators intentionally withheld from Real Parties
Page 13
-3-
In Interest important documents so that Real Parties In Interest would not have the benefit
of same during key depositions surrounding this case. (Id.) (document indicating that
Relators were being “lax” in producing certain documents to counsel for Real Parties In
Interest before key depositions). Ironically, with the exception that Relators are now
claiming privileges to some of the documents that were produced, Relators offer no excuse
for their offensive conduct; indeed, there is no excuse. Nevertheless, in an effort to “snatch
back” the documents, Relators filed an Objection and Assertion of Privilege Pursuant to
TRCP 193.3(d). (R.R. at I.) Thereafter, Real Parties In Interest filed their Response to
Relators’ Objection and Assertion of Privilege Pursuant to TRCP 193.3(d). (R.R. at N.)
On Tuesday, August 31, 2004, at the hearing related to the above-referenced issues,
the Honorable J. Manuel Banales held that Relators waived any and all privileges that might
have applied to certain documents that were provided to, reviewed by, or prepared by or for
Relators’ testifying expert in anticipation of the expert’s deposition testimony and/or in
preparation of the expert’s report. (R.R. at O.) As such, with respect to those certain
documents, the Honorable J. Manuel Banales OVERRULED Relators’ Objection and
Assertion of Privilege Pursuant to TRCP 193.3(d). (Id.)
Thereafter, Relators filed a Verified Petition for Writ of Mandamus with Thirteenth
Court of Appeals in Corpus Christi, Texas. (R.R. at P.) On September 27, 2004, after Real
Parties In Interest filed their Response to the Verified Petition for Writ of Mandamus,
Chief Justice Valdez, joined by Justice Rodriquez and Justice Wittig, authored an
Page 14
-4-
unpublished, per curiam memorandum opinion, wherebyRelators’ Verified Petition for Writ
of Mandamus was DENIED and the stay associated with same was lifted. This Petition for
Writ of Mandamus followed.
SUMMARY OF THE ARGUMENT
Discovery is the “linchpin of the search for the truth, as it makes a ‘trial less of a game
of blind man’s bluff and more a fair contest with the issues and facts disclosed to the fullest
practicable extent.’” State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). Importantly, the
documents provided to or reviewed by Relators’ testifying expert in this case contain
information and facts that fly directly in the face of that expert’s opinions, as well as
Relators’ arguments and defenses throughout this lawsuit. Perhaps not surprisingly, and,
despite a fact issue as to whether or not Relators’ expert considered such documents, Relators
are attempting now to thwart the search for the truth by hiding or “snap[ping] back” the
documents in question. Simply put, they are attempting to “unring the bell.” Recognizing
the problems and injustice surrounding Relators’ arguments, the trial court correctly
determined that Relators waived any and all privileges that might have applied to documents
that were provided to, reviewed by, or prepared by or for Relators’ testifying expert.
In determining that Relators waived any and all privileges that might have applied to
documents that were provided to, reviewed by, or prepared by or for one of Relators’
Page 15
-5-
testifying experts, the trial court followed the plain language of the Texas Rules of Civil
Procedure. After all, it is well settled, under Rule 192.3(e) of the Texas Rules of Civil
Procedure, that party is obligated to disclose, among other things, the facts known by an
expert that relate to or form the basis of the expert’s opinion, an expert’s mental impressions
and opinions in connection with the case and any methods used to derive those impressions
and opinions, and all documents, reports, or tangible items “provided to, reviewed by, or
prepared by or for the expert in anticipation of a testifying expert’s testimony.” T
EX
. R. C
IV
.
P. 192.3(e)(3), (4), (6) (emphasis added). Importantly, “[e]ven if made or prepared in
anticipation of litigation or for trial, the following is not work product protected from
discovery: (1) information discoverable under Rule 192.3 concerning experts . . . .”
T
EX
. R. C
IV
. P. 192.5(c)(1) (emphasis added).
Moreover, a careful review of all relevant authorities and principles reveals that
Relators’ arguments regarding the so-called “snap back provision” of the Texas Rules of
Civil Procedure are too narrow. In fact, contrary to Relators’ arguments, the trial court’s
decision is consistent with the established precedents of other jurisdictions faced with similar
controversies. Further, the trial court’s decision is consistent with the majority of courts that
have analyzed this issue (i.e., discovery of experts) under the Federal Rules of Civil
Procedure. Perhaps equally as important, the trial court’s decision is supported by strong
public policy considerations, including efficiency, fairness, and the truth seeking process.
Page 16
-6-
Because all relevant authorities and principles expressly provide that Relators waived
any and all privileges that might have otherwise applied to the documents in question, any
objections pertaining to the documents in question should be limited to objections regarding
admissibility at trial, and such objections are premature and not before this Court.
Moreover, because the so-called “snap back” provision of the Texas Rules of CivilProcedure
does not apply to information discoverable under Rule 192.3 of the Texas Rules of Civil
Procedure concerning experts, the trial court’s decision is correct. To hold otherwise would
necessitate a strained, and, perhaps more importantly, incorrect reading of the Texas Rules
of Civil Procedure and the interpretive case law on this issue.
Finally, even assuming,for arguments sake, that the trial court misapplied the relevant
law concerning discovery of experts, the evidence reveals that Relators failed to satisfy their
burden to avoid discoveryof the documents in question. Stated differently, although Relators
referred the trial court to certain documents or evidence to support their contention that none
of the documents in question were “relied” upon by their expert, Relators did so in a
conclusory manner and did not segregate the documents as to the various subjects which
would or would not form the basis of their expert’s opinions. To that end, Relators made it
virtually impossible and/or at least impracticable for the trial court to determine whether or
not Relators had satisfied their burden of proving no waiver.
ARGUMENT
Page 17
-7-
I.
THE TRIAL COURT’S DECISION THAT RELATORS WAIVED ANY AND
ALL PRIVILEGES TO THE DOCUMENTS IN QUESTION IS CORRECT
UNDER ALL RELEVANT AUTHORITIES AND PRINCIPLES.
The trial court correctly determined that Relators waived any and all privileges that
might have otherwise applied to the documents that were provided to, reviewed by, or
prepared by or for one of Relators’ testifying experts (i.e., Nurse Menzies) in anticipation of
the expert’s deposition testimony and/or in preparation of the expert’s report. As aptly noted
by our first President, “[t]ruth will ultimately prevail where there is pains to bring it to light.”
C
HARLES
P
ANATI
, Words To Live By 28 (1999) (quoting G
EORGE
W
ASHINGTON
). In one of
many efforts to ensure that the truth regarding their acts and/or omissions (an issue best left
in the hands of a jury) never sees the light of day, Relators argue, in their Petition for Writ
of Mandamus, that certain documents were inadvertently produced to Nurse Menzies
(i.e., one of Relators’ testifying experts), and, subsequently, inadvertently produced to Real
Parties In Interest at the deposition of Nurse Menzies. (Petition for Writ of Mandamus at 2-
13.) As such, pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure, Relators ask
this Court to rule that such documents are privileged and/or to allow Relators to “snatch
back” such documents. (Id. at 8-13.) Although Relators (and/or their counsel) claim now
that they did not have an opportunity to review the documents in question prior to providing
their testifying expert with same, the deposition testimony of their testifying expert reveals
that Relators met with Nurse Menzies for several hours before her deposition (i.e., both by
phone and on the way to the deposition). (Id.) Regardless, Relators argue that waiver
Page 18
-8-
extends only to those documents or material “that the expert actually relied [upon] in arriving
at mental impressions or opinions.” (Id. at 11.) Stated differently, Relators contend that the
question is not whether their expert “saw,” or glanced at the documents in question,
but “[t]he question is whether she used them and relied upon them in arriving at her
opinions.” (Id. at 14.)
In applying all relevant authorities and principles to the facts and circumstances of this
case, it will become obvious that Relators’ arguments and authorities are misplaced.
To be sure, in reaching its decision, the trial court followed the plain language of the Texas
Rules of Civil Procedure. Further, the trial court’s ruling is consistent with the established
precedents of other jurisdictions faced with similar controversies. Moreover, the trial court’s
decision is consistent with the majority of courts that have analyzed this issue under the
Federal Rules of Civil Procedure, and the trial court’s decision is supported by strong public
policy considerations. To that end, any objections pertaining to the documents in question
should be limited to objections regarding admissibility at trial, and such objections are
premature and not before this Court. Perhaps equally as important, contrary to Relators’
arguments, the “snap back” provision of the Texas Rules of Civil Procedure does not apply
to information discoverable under Rule 192.3 of the Texas Rules of Civil Procedure
concerning experts. To hold otherwise would necessitate a strained, and, perhaps more
importantly, incorrect reading of the Texas Rules of Civil Procedure and the interpretive case
law on this issue. Finally, even assuming, for arguments sake, that the trial court misapplied
Page 19
-9-
the relevant law concerning discovery of experts, the evidence reveals that Relators failed
to satisfy their burden to avoid discovery of the documents in question.
A.
The Plain Language Of The Texas Rules Of Civil Procedure
Dictates That Relators Waived Any And All Privileges Pertaining
To The Documents In Question When The Documents Were
Provided To, Reviewed By, Or Prepared By Or For Relators’
Testifying Expert.
Because the documents in question were provided to, reviewed by, or prepared by or
for Relators’ testifying expert in anticipation of her deposition testimony and/or in
preparation of her expert report, Relators waived any and all privileges that might have
otherwise applied to such documents. It is well settled, under Rule 192.3(e) of the Texas
Rules of Civil Procedure, that a party is obligated to disclose, among other things, the facts
known by an expert that relate to or form the basis of the expert’s opinion, an expert’s mental
impressions and opinions in connection with the case and any methods used to derive those
impressions and opinions, and all documents, reports, or tangible items “provided to,
reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s
testimony.” T
EX
. R. C
IV
. P. 192.3(e)(3), (4), (6) (emphasis added); see also T
EX
. R. C
IV
. P.
194.2(f)(4)(A). Importantly, “[e]ven if made or prepared in anticipation of litigation or for
trial, the following is not work product protected from discovery: (1) information
discoverable under Rule 192.3 concerning experts . . . .” T
EX
. R. C
IV
. P. 192.5(c)(1)
(emphasis added). Further, a response to request for disclosures made in accordance with
Rule 194 of the Texas Rules of Civil Procedure may not include an assertion that the
Page 20
-10-
information or material to be disclosed to testifying experts constitutes work product.
T
EX
. R. C
IV
. P. 194.5 (emphasis added). In analyzing the relationship between the work
product privileges (and other privileges) afforded trial preparation materials and the rule
concerning the discoverability of expert information, this Court is need look no further than
the plain language of the current Texas Rules of Civil Procedure.
An instructive case is In re Family Hospice, Ltd., 62 S.W.3d 313 (Tex. App.–El Paso
2001, orig. proceeding). In that case, during the course of the wrongful death litigation
arising out of the negligent care of a nursing home patient, the plaintiffs designated a
registered nurse as their testifying expert. Id. at 315. After the plaintiffs noticed their
testifying expert’s deposition, the defendants issued a cross-notice of deposition with a
subpoena duces tecum. Id. During the testifying expert’s deposition, the defendants learned
that documents that were responsive to their request for disclosure were being withheld. Id.
The plaintiffs argued that the documents in question were privileged. Id. The defendants
filed a motion to compel requesting that the trial court order the plaintiffs to produce the
alleged privileged documents. Id. After a hearing, the trial court held that some of the
documents were protected by, among other things, the work product privilege. Id.
On writ of mandamus, the defendants argued that all of the documents were
discoverable and/or that the plaintiffs had waived their right to assert an objection to the
subpoena duces tecum. Id. In holding that the trial court clearly abused its discretion by
refusing to grant the defendants’ motion to compel in its entirety, the In re Family Hospice,
Page 21
1
To support their position, Relators direct this Court’s attention to Aetna Cas. & Sur.
Co. v. Blackmon, 810 S.W.2d 438 (Tex. App.–Corpus Christi 1991, orig. proceeding).
Blackmon was decided, however, under the old Texas Rules of Civil Procedure.
While Relators attempt to minimize or ignore the differences between the old Rules and the
current Rules, there are distinct and important differences between the two. In fact, it
appears that Relators went to great lengths to avoid any references to and/or to ignore the
“provided to” language in the current Rules, and, instead, chose to focus on the “relied upon”
theory addressed under the old Rules. Regardless, the fact remains that such language is not
a distinction without a difference.
For example, under the old Texas Rules of Civil Procedure, Rule 166b(2)(e)(2)
provided, in pertinent part, that “[a] party may also obtain discovery of documents . . .
prepared by an expert or for an expert in anticipation of the expert’s trial and deposition
-11-
Ltd. court relied upon Rule 192.3(e) of the Texas Rules of Civil Procedure. Id. at 315
S
16.
Specifically, the In re Family Hospice, Ltd. court noted that “[b]ecause the documents in
question are the product and/or documentation of the mental impressions of a testifying
expert and because the Texas Rules of Civil Procedure provide that any information
regarding a testifying expert’s mental impressions or opinions are discoverable regardless
of when and how the information was acquired, we hold that the ruling of the trial court
constitutes a clear abuse of discretion.” Id. at 316 (emphasis added). While it is true, as
alluded to by Relators, that the In re Family Hospice, Ltd. court based its holding, at least in
part, on the fact that the documents in question were the product of the mental impressions
of the plaintiffs’ testifying expert, the precise issue before this Court was not raised.
Stated differently, the question of whether or not documents “provided to” an expert, and,
at a minimum, considered by the expert for the purpose of determining whether or not to rely
upon same in forming his opinions are discoverable was left unanswered .
1
Page 22
testimony . . . .” T
EX
. R. C
IV
. P. 166b(2)(e)(2). Importantly, unlike Rule 192.3(e)(6) of the
current Texas Rules of Civil Procedure, Rule 166(2)(e)(2) did not speak to documents
“provided to” or “reviewed by” an expert in anticipation of the expert’s testimony. Id.
It necessarily follows that the current version of the Texas Rules of Civil Procedure is much
broader than the old version when it comes to discovery relating to experts.
-12-
In this case, although Relators contend that the documents in question included
privileged documents, the plain language of the current Texas Rules of Civil Procedure
obligated Relators to produce all such documents because it is undisputed that such
documents were “provided to, reviewed by, or prepared by or for [Nurse Menzies] in
anticipation of [her] testimony.” T
EX
. R. C
IV
. P. 192.3(e)(6) (emphasis added). Perhaps
more importantly, Relators are precluded, by the express language of the current Texas Rules
of Civil Procedure, from asserting that such documents are protected work product
(or asserting other privileges) “[e]ven if [the documents were] made or prepared in
anticipation of litigation or for trial . . . .” T
EX
. R. C
IV
. P. 192.5(c)(1) (information
discoverable under Rule 192.3 concerning experts is not protected from discovery). It cannot
be reasonably disputed that the documents in question were “provided to” and/or that a fact
issue exists as to whether or not the documents were “reviewed by” Nurse Menzies in
anticipation of her deposition testimony and/or in preparation of her expert report. (R.R. at
I-4; see also id. at H at p. 18, l. 1-6, p. 78, l. 21–p. 79, l. 24, p. 87, l. 16–p. 89, l. 4.)
Under the express, plain language of the Texas Rules of Civil Procedure, that alone is
sufficient to constitute waiver on the part of Relators. T
EX
. R. C
IV
. P. 192.3(e)(6),
192.5(c)(1); see also In re Family Hospice, Ltd., 62 S.W.3d at 316.
Page 23
2
Again, the issue of whether or not Relators’ expert considered, used, etc. the
documents in question is heavily disputed and contradicted by the evidence. In fact, the trial
court’s decision was “based not only on the delivery of the material to the expert nurse, but
also . . . [because] [i]t is unclear that she did not see certain specified documents.” (R.R. at
O at p. 68, l. 22–p. 69, l. 4.) To that end, there is an “appreciable difference” between the
hypothetical arguments advanced by Relators and the facts of this case.
-13-
Again, contrary to Relators’ arguments and the Affidavit of Nurse Menzies, whereby
theycontend that Nurse Menzies did not form her opinions and/or her report from the alleged
privileged documents, Nurse Menzies, admitted in her deposition, that she reviewed all of
the documents that she brought with her to her deposition, and took at a look at all of the
materials in the box provided to her by Relators. (R.R. at H at p. 18, l. 1-6, p. 78, l. 21–p. 79,
l. 24, p. 87, l. 16–p. 89, l. 4.) Conveniently, towards the end of her deposition, and, now,
Nurse Menzies contends that the alleged privileged documents were not reviewed and/or
considered by her for purposes of her testimony and/or expert report . Because Nurse
2
Menzies’ deposition testimony and Nurse Menzies’ Affidavit contain, at the very least,
contradicting statements, a fact issue exists with respect to same. Further, as set forth in
more detail below, the fact that Nurse Menzies allegedly did not “rely upon” such documents
in forming her opinions is not dispositive of the issue at hand.
One of the most insightful analyses, which addressed the inherent problems and
chilling effects of Relators’ narrow interpretation of the relevant law was set forth, in detail,
by S
TEPHEN
D. E
ASTON
, A
MMUNITION FOR THE
S
HOOT
-O
UT WITH THE
H
IRED
G
UN
’
S
H
IRED
G
UN
: A P
ROPOSAL FOR
F
ULL
E
XPERT
W
ITNESS
D
ISCLOSURE
, 32 Ariz. St. L. J. 465, 556
S
69
Page 24
-14-
(2000). In that article, in discussing an expert’s ability to hide information under the “relied
upon” doctrine, it was noted that “[a]doption of the [full disclosure] proposal would end the
artificial, information-hiding, and perniciously malleable notion of requiring disclosure only
of information that an expert witness identifies as information that she relied upon in forming
opinions.” Id. at 556. In an analysis with striking similarity to the analysis in Tracy
(i.e., addressed below), the article’s author added, in pertinent part, as follows:
[E]ven for the most honest of experts, a declaration that she did not “rely
upon” a certain piece of information is not one that should be accepted at face
value. After all, how can any human being say that she considered and is
aware of a certain piece of information, but that piece of information plays no
part whatsoever in her analysis of the set of facts that included that piece of
information? Any trial attorney who has sat through a “limiting” instruction
telling the jury to ignore a certain piece of information (on either one, some,
or all issues) knows that one can never completely “unring” a bell and expect
jurors to totally disregard this evidence. . . . One suspects that the expert who
lists the information that she relied upon or, in another phrase, information that
is the basis for her opinion is not actually saying that she is not relying to any
extent upon other information. Instead, what she probably means is “I am
prepared to try to defend my opinion without this data” or “I am ignoring this
data, because it runs counter to my conclusion.” In either event, the opposing
attorney’s interest in the data is not eliminated (or, usually, diminished) and
may, in some instances, be increased by the fact that the expert is trying to
pretend that the data does not exist.
Id. at 557
S
58. It logically follows that the survival of our adversary system depends, in great
part, “upon cross-examination to expose problems with witnesses and the testimony they
present, so that jurors will be enlightened in their search for the truth.” Id. at 569.
In the end, because all of the documents in question were, at a minimum,
“provided to” and/or a fact issue exists as to whether or not Nurse Menzies “reviewed” same
Page 25
-15-
in anticipation of her expert deposition testimony and/or in preparation of her expert report,
the express language of the current Texas Rules of Civil Procedure mandates that Relators
have waived any and all privileges that might have otherwise applied to such documents.
T
EX
.R.C
IV
.P. 192.3(e)(6), 192.5(c)(1). Further, regardless of whether or not the production
of such documents was “inadvertent” and/or a “mistake,” any and all privileges were waived
when the documents were “provided to, reviewed by, or prepared by or for [Nurse Menzies]
in anticipation of [her] testimony.” Id. (emphasis added). As such, this Court should
DENY, in all parts, Relators’ Petition for Writ of Mandamus.
B.
The Trial Court’s Decision Is Consistent With The Established
Precedents Of Other Jurisdictions Faced With Similar
Controversies.
Contrary to Relators’ argument, the trial court’s decision is consistent with the
established precedents of other jurisdictions faced with similar controversies.
Again, Relators argue that any waiver of privilege extends only to those documents or
material “that the expert actually relied [upon] in arriving at mental impressions or
opinions.” (Petition for Writ of Mandamus at 11) (emphasis added). The inherent injustice
in Relators’ argument is magnified by a brief overview of the established precedents from
other jurisdictions faced with similar controversies.
An analogous case to the case at bar is State ex rel. Tracy v. Dandurand, 30 S.W.3d
831 (Mo. banc 2000). In Tracy, the Supreme Court of Missouri was asked, as an issue of
first impression, to determine whether a party continues to have an attorney-client privilege
Page 26
-16-
as to documents that the party has “provided” to its retained expert witness who is designated
to testify. Id. at 832. The underlying dispute was brought by the plaintiff against her insurer
for exposing her to liability in excess of her policy coverage limits while defending her in a
wrongful death claim. Id. at 833. During the course of the bad faith lawsuit, the plaintiff
requested the production of her insurer’s entire claim file. Id. Although the insurer produced
some responsive documents, other documents were withheld as privileged. Id.
Eventually, the insurer designated a testifying expert, and “inadvertently” produced
to its expert some of the documents that were listed on the privilege log. Id. (emphasis
added). At the testifying expert’s deposition, the expert produced his file to the plaintiff,
which included the alleged privileged documents, and testified that he had reviewed his
entire file. Id. Shortly thereafter, the insurer filed a motion for protective order and/or
motion in limine asking the trial court to order the plaintiff to return the documents to the
insurer and the trial court enter an order preventing use of the documents or reference to the
documents at trial. Id. Although the trial court denied the insurer’s motion for protective
order, allowing the plaintiff to keep the documents, the trial court sustained the insurer’s
motion in limine to exclude use of the documents and prohibited the plaintiff from
questioning any witnesses about the documents. Id. at 833
S
34. The plaintiff filed a
prohibition (i.e., mandamus) action against the trial court. Id. at 834.
On writ of prohibition, the Supreme Court of Missouri noted that, in Missouri, “[t]he
discovery of facts known and opinions held by an expert are, until the expert is designated
Page 27
-17-
for trial, the work product of the attorney retaining the expert.” Id. However, “[o]nce the
retaining attorney decides to use the expert at trial and discloses him or her as a witness, the
expert is subject to discovery.” Id. Further, the Supreme Court of Missouri noted that the
Missouri rules allow for opposing counsel to probe a testifying expert on, among other
things, the expert’s qualifications, knowledge of the subject, and information the expert has
been provided. Id. at 835.
In applying those rules and principles to the issue at hand, the Supreme Court of
Missouri rejected the suggestion that “materials given to an expert can be withheld from
disclosure if the expert did not rely upon them.” Id. In support, the Supreme Court of
Missouri noted, in pertinent part, as follows:
To hold otherwise would allow the expert witness or the party
retaining the expert witness to select which documents to
produce after the expert has reviewed the documents in
preparation for the expert’s testimony. It is appropriate, at
deposition or trial, to cross-examine an expert witness as to
information provided to the expert that may contradict or
weaken the bases for his or her opinion regardless of whether
the expert relied upon or considered the information.
Id. (emphasis added). Further, even though the insurer’s disclosure was alleged to be
inadvertent, the Supreme Court of Missouri held that the privilege “has indeed been waived.”
Id. Of course, the Supreme Court of Missouri was quick to note also that “[i]f the party’s
attorney, in preparing the expert for deposition, finds that privileged documents have been
mistakenly provided to the expert, the attorneypresumably has the option of withdrawing the
expert’s designation prior to the deposition.” Id. at 835
S
36 (emphasis added). Nevertheless,
Page 28
-18-
because the insurer’s expert had been “provided the materials, was designated to testify,
ha[d] had his deposition taken, and ha[d] provided opposing counsel with the documents that
the insurer gave to him,” the Supreme Court of Missouri held that it was too late to withdraw
the experts designation “in order to make the documents secret again.” Id. at 836.
“The bell has been rung and cannot be unrung.” Id. (emphasis added); see also State ex
rel. Am. Econ. Ins. Co. v. Crawford, 75 S.W.3d 244, 246 (Mo. 2002) (holding that
designation of an expert as a trial witness begins a process of waiving privilege);
Stearrett v. Newcomb, 521 A.2d 636, 638 (Del. Super. 1986) (holding that where an attorney
forwards letters and memoranda to an expert who is expected to testify at trial, any claim of
privilege or work product is waived no matter what is contained in the documents).
Ultimately, the Supreme Court of Missouri concluded that “[a]ll material given to a testifying
expert must, if requested, be disclosed.” Tracy, 30 S.W.3d at 836 (emphasis added).
In this case, like Tracy, the mere fact that Nurze Menzies and Relators contend that
Nurse Menzies did not “rely” upon the alleged confidential and privileged documents to form
her opinions and/or expert report is of absolutely no consequence to the issue at hand.
As alluded to in Tracy, it is a fundamental concept, in cross-examining experts, that counsel
may cross-examine experts as to what changes of conditions and/or facts would effect the
experts’ opinions. Id. at 835. In fact, as recognized by the Supreme Court of the United
States, “[c]ross examination is the principal means by which the believability of a witness
and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).
Page 29
-19-
By ignoring the real facts and/or evidence in question, Relators are attempting to thwart the
jury’s and the parties’ search for the truth, which is a fundamental purpose for conducting
a trial and for allowing discovery. See, e.g., Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555
(Tex. 1990) (noting that the purpose of discovery is to seek the truth, so that disputes may
be decided by what the facts reveal, not by what facts are concealed); Lowry, 802 S.W.2d at
671 (noting that discovery is the “linchpin of the search for the truth, as it makes a ‘trial less
of a game of blind man’s bluff and more a fair contest with the issues and facts disclosed to
the fullest practicable extent.”) In light of the fact that the alleged confidential and privileged
documents in question contain facts and evidence directly contrary to the opinions of
Nurse Menzies and the position taken by Relators throughout this lawsuit, Real Parties
Interest should not be deprived of their right to a fair trial and the citizens of the State of
Texas should not be deprived of the “truth.”
Notwithstanding the foregoing, Relators contend, in their Brief on the Merits, that
Tracy is “fully distinguishable” from the case at bar. (Relators’ Brief on the Merits at 25.)
First, Relators argue that, unlike this case (i.e., an issue heavily disputed by Real Parties In
Interest), “the expert in Tracy testified to having ‘reviewed’ the documents.” (Id.)
Second, Relators argue that “the Tracy opinion does not discuss how the documents came
to be in the expert’s possession,” and “[t]he court appears to assume that they were
intentionally provided to the expert for purposes of preparing the expert’s trial testimony.”
(Id.) Third, Relators argue that “[t]he Tracy court expresslyacknowledged that a trial court,
Page 30
-20-
in a case with different facts (like ours) could order the return of inadvertently disclosed
privileged documents.” (Id.) Fourth, Relators argue that, “[w]hile [Real Parties In Interest]
asserted at page 15 of its Response that [Relators] failed to avail [themselves] of the
opportunity to withdraw the testifying expert designation of Nurse Menzies, that statement
assumes contrary to the evidence that [Relators] [were] aware of the contents of Nurse
Menzies’ file before the deposition began.” (Id. at 26.) Finally, Relators argue that “[t]he
Tracy court expressly reserved the issue as to whether the materials would be admissible for
other purposes, particularly for trial.” (Id.) Because Real Parties In Interest have already
deposed Nurse Menzies, Relators contend that Real Parties In Interest should be prevented
from using the documents in question for “other purposes, specifically in deposing other
witnesses.” (Id.)
As regards Relators’ first argument, while it is true that the expert in Tracy testified
that he reviewed his entire file, the Supreme Court of Missouri’s opinion did not rise or fall
on that issue. Tracy, 30 S.W.3d at 833
S
35. In fact, in the end, the Supreme Court of
Missouri concluded that “[a]ll material given to a testifying expert must, if requested, be
disclosed.” Id. at 836 (emphasis added). Perhaps equally as important, in this case, contrary
to Relators’ creative belief and argument that the “uncontroverted evidence shows that Nurse
Menzies did not read, review, or use [the documents in question] in arriving at her mental
impressions and opinions,” the actual evidence suggests and proves the exact opposite.
Stated differently, despite Relators’ effort to “split hairs” between the words glanced,
Page 31
-21-
reviewed, used, etc., a fair reading of the evidence reveals, at a minimum, that the documents
in question were “provided to” and/or that a fact issue exists as to whether or not the
documents were “reviewed by” Nurse Menzies in anticipation of her deposition testimony
and/or in preparation of her expert report. (R.R. at I-4; see also id. at H at p. 18, l. 1-6, p. 78,
l. 21–p. 79, l. 24, p. 87, l. 16–p. 89, l. 4.) Again, Nurse Menzies admitted, in her deposition,
that she reviewed all of the documents that she brought with her to her deposition, and took
at a look at all of the materials in the box provided to her by Relators. (R.R. at H at p. 18,
l. 1-6, p. 78, l. 21–p. 79, l. 24, p. 87, l. 16–p. 89, l. 4.) Conveniently, towards the end of her
deposition, and, now, Nurse Menzies contends that the alleged privileged documents were
not reviewed and/or considered by her for purposes of her testimony and/or expert report.
Because Nurse Menzies’ deposition testimony and Nurse Menzies’ Affidavit contain, at the
very least, contradicting statements, a fact issue exists with respect to same, and Relators
should not be allowed to suppress the truth through a creative play on words.
As regards Relators’ second argument regarding Tracy (i.e., that “the Tracy opinion
does not discuss how the documents came to be in the expert’s possession,” and “[t]he court
appears to assume that they were intentionally provided to the expert for purposes of
preparing the expert’s trial testimony.”), such argument is wrong. To be sure, long before
addressing the merits of the case, the Supreme Court of Missouri noted that the insurer
designated a testifying expert, and “inadvertently” produced to its expert some of the
documents that were listed on the privilege log. Tracy, 30 S.W.3d at 833. Stated differently,
Page 32
-22-
the Supreme Court of Missouri never “assume[d],” as argued by Relators, that the documents
were “intentionally” provided to the expert. Id.
Moreover, while Relators correctly point out (i.e., in their third argument) that the
Supreme Court of Missouri acknowledged a trial court’s discretion to order the return of
inadvertently disclosed documents under a different set of facts, the Supreme Court of
Missouri expressly announced that those different set of facts did not apply to an expert
witness. Id. at 835. Because the Tracy court was dealing with an expert witness,
“[e]ven though the disclosure of the documents was alleged to be inadvertent, [the Supreme
Court of Missouri] believe[d] the privilege [had] indeed been waived.” Id. On the other
hand, if the documents in question had been produced or disclosed in written discovery, then,
upon satisfying the burden that the documents were privileged, the Supreme Court of
Missouri may have upheld the trial court’s decision to order the return of the documents. Id.
Again, though, the above example did not fit the facts of Tracy and does not fit the facts and
circumstances before this Court and/or those before the trial court in this case.
Despite Relators’ argument regarding the fact that theywere not aware of the contents
of Nurse Menzies’ file before the deposition began (i.e., their fourth argument), such
argument does not impact the outcome in this case. As noted in Tracy, if Relators, in
preparing Nurse Menzies for her deposition, found that privileged documents had been
inadvertently provided to Nurse Menzies, then Relators had the option to withdraw her
designation prior to her deposition. See Tracy, 30 S.W.3d at 835
S
36. Even assuming, for
Page 33
-23-
arguments sake, that Relators did not become aware of the contents of Nurse Menzies’ file
until after the deposition began, Relators had an opportunity to review the documents before
the deposition,especiallyconsidering the fact Nurse Menzies admitted,in her deposition, that
she met with counsel for Relators for several hours before her deposition, and on several
occasions over the telephone. (R.R. at p. 18, l.-14–p. 19, l. 12.) Likewise, common sense
suggests that Relators had an opportunity to review the documents during the deposition of
Nurse Menzies. As it turns out, Relators either reviewed the documents and simply were not
happy with the results stemming from the deposition testimony or Relators chose not to
review same until after Nurse Menzies’ deposition. Either way, as set forth herein, Relators
waived any and all privileges that might have otherwise pertained to the documents in
question, and same does not effect the outcome of this case or the opinion in Tracy.
As regards Relators’ final argument regarding the issue of whether or not the materials
would be admissible for “other purposes,” including deposing “other witnesses,” Relators
misconstrue, once again, the Supreme Court of Missouri’s opinion in Tracy. In fact, contrary
to Relators’ interpretation of Tracy, the Supreme Court of Missouri did not reserve “the issue
as to whether the materials would be admissible for other purposes, particularly for trial.”
Id. Instead, the Supreme Court of Missouri noted that “[i]t is appropriate, at deposition or
trial, to cross-examine an expert witness as to information provided to the expert that may
contradict or weaken the bases for his or her opinion regardless of whether the expert relied
upon or considered the information.” Id. at 835 (emphasis added). Perhaps equally as
Page 34
3
In Texas, the use of depositions is governed by Rule 203.6 of the Texas Rules of Civil
Procedure. T
EX
. R. C
IV
. P. 203.6. It is well settled that “[a]ll or part of a deposition may be
used for any purpose in the same proceeding in which it was taken.” T
EX
.R.C
IV
.P.203.6(b)
(emphasis added).
-24-
important, the Supreme Court of Missouri announced that, “[o]nce the expert’s deposition
is taken, the deposition is available for use by any party, subject to [the rule regarding use of
depositions]. ” Id. at 836.
3
The bottom-line is that the “bright-line” rule announced in Tracy is applicable to the
facts and circumstances before this Court. In fact, contrary to Relators’ arguments, the facts
and circumstances in Tracy are virtually identical to the facts and circumstances at issue in
this case. Likewise, the rules of procedure that were analyzed in Tracy are virtually identical
to the Texas Rules of Civil Procedure. Accordingly, this Court should DENY, in all parts,
Relators’ Petition for Writ of Mandamus.
C.
The Trial Court’s Decision Is Consistent With The
Majority Of Authorities Analyzing This Issue Under
The Federal Rules Of Civil Procedure And Is
Supported By Strong Public Policy Considerations.
Not onlyis the trialcourt’s decision consistent with the established precedents of other
jurisdictions faced with similar controversies, but the trial court’s decision is consistent with
the majority of opinions addressing this issue under the Federal Rules of Civil Procedure and
is supported by strong public policy. After jumping to the heavily disputed conclusion that
the materials at issue have no relevancy to the opinions of Nurse Menzies and/or played no
part in her opinion, Relators’ contend that “no legitimate purpose is served” by stripping
Page 35
-25-
them of their alleged privileges. (Relators’ Brief on the Merits at 18-21.) As set forth below,
though, the trial court’s interpretation of the Texas Rules of Civil Procedure is consistent
with the Federal Rules of Civil Procedure, and the strong public policy favoring full
disclosure of experts outweighs and/or does not circumvent the policy behind protecting
privileged documents and/or opinions.
An instructive case is Gall v. Jamison, 44 P.3d 233 (Col. 2002). In Gall, a medical
malpractice action, one of the defendants served a notice of deposition duces tecum on one
of the plaintiffs’ testifying experts. Id. at 234. In the duces tecum, the defendant requested
that the testifying expert produce “‘all correspondence to/from plaintiffs’ counsel or anyone
else relating to this case.’” Id. In one of the letters that was requested by the defendant, there
was a discussion of deposition testimony considered important by the plaintiffs’ counsel, an
assessment of how defendants’ actions may have fallen below the standard of care, and
citation to medical journals that the plaintiffs’ counsel considered important. Id. As such,
the plaintiffs claimed that such correspondence was protected from discovery as work
product. Id. The defendant claimed, on the other hand, that any information provided to a
testifying expert was discoverable and outside the work product doctrine. Id. The trial court
agreed with the defendant, and ordered the plaintiffs to produce the correspondence. Id.
The trial court “reasoned that ‘Defendants are entitled to know whether [the plaintiffs’
expert] has in any way ‘shaped’ her testimony in response to impressions communicated by
plaintiffs’ counsel’ so that defendants could adequately impeach [the plaintiffs’ expert].” Id.
Page 36
-26-
On mandamus, the Gall court began its analysis by comparing and contrasting the
Colorado Rules of Civil Procedure with the Federal Rules of Civil Procedure as same
pertained to expert witnesses. Id. at 234
S
35. After determining that the Colorado Rules of
Civil Procedure and the Federal Rules of Civil Procedure were “substantially similar,” the
Gall court noted, at the outset, that Rule 26(a)(2) of the Federal Rules of Civil Procedure
required a testifying expert “to produce before trial a written report or summary of her
testimony which includes ‘a complete statement of all opinions to be expressed and basis and
reasons therefor [and] the data or other information considered by the witness in forming the
opinions.’” Id. at 235. It then noted that “[t]he rule of disclosure embodied in Rule 26(a)(2)
shared “an uneasy coexistence with the attorney work product doctrine . . . .” Id. (citing F
ED
.
R. C
IV
. P. 26(b)(3)). Stated differently, the Gall court recognized that Rule 26(b)(3)
generallysubjected to discoverythose documents and tangible things prepared in anticipation
of litigation “only if the opposing party demonstrates a ‘substantial need’ for the materials
and cannot obtain the substantial equivalent without undue hardship.”
Id.
Despite recognizing that general rule, the Gall court was quick to note that “[t]he general
protection from discovery that Rule 26(b)(3) affords work product, however, is tempered by
the provisions of Rule 26(b)(4), to which Rule 26(b)(3) is subject.” Id. at 236.
In addressing the “uneasy coexistence” and/or the conflict surrounding the rule of
disclosure pertaining to experts and the protections afforded an attorney’s work product, the
Gall court looked, first, to a pre-amendment case. Id. at 236
S
37 (citing Boring v. Keller, 97
Page 37
-27-
F.R.D. 404, 407-08 (D. Colo. 1983) (holding that letters containing an attorney’s work
product that were shared with the attorney’s expert were discoverable because (1) the work
product privilege is waived when otherwise protected materials are used to influence and
shape testimony, and (2) the adverse party must be permitted to inspect the shared documents
in order to effectively cross-examine the expert witness). Id. The Gall court looked, next,
to the Federal Rule’s advisory committee’s comments regarding the changes to the discovery
of experts. Id. at 237. In doing so, the Gall court found that “the advisory committee
criticized the practice of shielding from discovery the work product given by attorneys to
experts.” Id. It found also that the advisory committee “concluded that claims of work
product protection should not thwart discovery of materials provided to an expert witness,
stating that in light of the ‘obligation of disclosure, litigants should no longer be able to argue
that materials furnished to their experts to be used in forming their opinions - whether or not
ultimately relied upon by the expert - are privileged or otherwise protected from disclosure
when such persons are testifying or being deposed.” Id.
After addressing the “uneasy coexistence” and/or the conflict surrounding the rule of
disclosure pertaining to experts and the protections afforded an attorney’s work product, the
Gall court noted that “Rule 26(b)(3) concerning protection of opinion work product is
‘subject to’ Rule 26(b)(4), indicating that the work product doctrine does not protect the
materials informing the expert’s report or opinion.” Id. at 238. Based on the unambiguous
language of the commentary, the Gall court concluded that “opinion work product that is
Page 38
-28-
reviewed or considered byan expert in preparation for testimonyat trial is discoverable under
Rules 26(a)(2)(B) and 26(b)(4)(A).” Id. at 239.
From the standpoint of public policy, the Gall court noted that “[s]trong public policy”
supported a construction of broad disclosure. Id. In support thereof, the Gall added, in
pertinent part, as follows:
A bright-line rule promotes efficiency, fairness, and the truth seeking process.
Requiring trial courts to review every expert communication in camera to
determine the appropriate degree of disclosure, on the other hand, simply
foments needless discovery battles, undercuts the truth seeking principles of
the rules of civil procedure, and wastes scarce judicial resources. . . . A bright-
line rule preserves judicial economy by obviating the need for a judge to
consider whether counsel’s communications to retained experts contain work
product. It also frees trial courts from the burdensome task of sifting through
volumes of documents to separate ‘factual work product’ from ‘opinion work
product’ . . . . A bright-line approach also gives parties notice of precisely
which materials will be discoverable in every case, thereby reducing the
number of discovery disputes. . . . Perhaps most importantly, a bright-line
disclosure rule advances the truth seeking function of the discovery rules.
Id. at 239
S
40 (emphasis added). Additionally, the Gall court noted that, without access to
the documents or materials that an expert was provided, “the opposing party will be unable
to conduct a full and fair cross-examination of the expert.” Id. at 240. Moreover, “[a] bright-
line rule’s promotion of the truth seeking function of discovery does not compromise the
strong policies underlying the work product doctrine.” Id.
In denying the plaintiffs’ mandamus relief, the Gall court emphasized that “a
communication is discoverable even if the expert did not rely on it in forming her opinion;
she need only consider the communication in developing her opinion.” Id. (emphasis added).
Page 39
-29-
To that end, where an expert has “‘read or reviewed the privileged materials before or in
connection with formulating his or her opinion, the expert will be deemed to have
‘considered’ those materials for purposes of Rule 26(a)(2)(B).’” Id. at 241. After all,
“‘documents considered but rejected bythe expert trial witness could be even more important
for cross-examination than those actually relied upon by him.’” Id.
In this case, like Gall, after comparing and contrasting the Texas Rules of Civil
Procedure with the Federal Rules of Civil Procedure, it becomes apparent that the Texas
Rules of Civil Procedure and the Federal Rules of Civil Procedure are virtually the same.
To be sure, similar to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, Rule 192.3(e)
of the Texas Rules of Civil Procedure provides for discovery of, among other things, “the
facts known by the expert that relate to or form the basis of the expert’s mental impressions
and opinions . . . regardless of when and how the factual information was acquired, and “all
documents, tangible things, reports, models, or data compilations that have been provided
to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony.”
T
EX
. R. C
IV
. P. 192.3(e)(3), (6). Further, similar to Rule 26(b)(3) of the Federal Rules of
CivilProcedure, Rule 192.5(b) of the Texas Rules of CivilProcedure generallysubjects work
product to discovery only upon a showing of “substantial need” and “undue hardship” to
obtain same by some other means. T
EX
. R. C
IV
. P. 192.5(b)(2). Moreover, just as Rule
26(b)(3) of the Federal Rules of Civil Procedure is “subject to” Rule 26(b)(4)(A) of the
Federal Rules of Civil Procedure, “indicating that the work product doctrine does not protect
Page 40
4
To support their position that, even under the amended Texas Rules of Civil
Procedure, experts must “truly rely” on documents before waiving any privileges, Relators
direct this Court’s attention to In re Bell Helicopter Textron, Inc., 87 S.W.3d 139
(Tex. App.–Forth Worth 2002, orig. proceeding). (Relators’ Brief on the Merits at 23-24.)
Although the In re Bell Helicopter court did apply the amended Texas Rules of Civil
Procedure regarding experts to the facts of that case, it did not apply same to facts remotely
similar to the facts before this Court. Id. at 149. Instead, the In re Helicopter court was
faced with the issue of whether information acquired by an expert in a prior proceeding was
discoverable in a new proceeding. Id. Of course, the In re Helicopter court held that
-30-
the materials informing the expert’s report or opinion,” Rule 192.5(b)(2) of the Texas Rules
of Civil Procedure is “subject to” Rule 192.5(c) of the Texas Rules of Civil Procedure.
T
EX
. R. C
IV
. P. 192.5(b)(2) (expressly excluding from work product “information
discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and
contentions”).
Because the Federal Rules of Civil Procedure and the Texas Rules of Civil Procedure
regarding discovery of experts are virtually identical, there is no reason to depart from the
rationale set forth in Gall and the majority of jurisdictions addressing the issue before this
Court. In fact, the rationale set forth by the Federal Rule’s advisory committee and addressed
in Gall should apply equally under the Texas Rules of Civil Procedure. Stated differently,
“claims of work product protection should not thwart discovery of materials provided to an
expert witness, [and] in light of the ‘obligation of disclosure, litigants should no longer be
able to argue that materials furnished to their experts to be used in forming their opinions -
whether or not ultimately relied upon by the expert - are privileged or otherwise protected
from disclosure when such persons are testifying or being deposed. ” Gall, 44 P.3d at 237.
4
Page 41
“the testifying expert’s mental impressions and opinions concerning the case, and the facts
known by the expert that relate to or form the basis of the expert’s mental impressions and
opinions formed or made in connection with the case in which discovery is sought, are
discoverable. Id. (emphasis original). To that end, contrary to Relators’ argument, such
opinion is not beneficial to this Court’s analysis in this case.
-31-
Further, as referenced in Tracy, the rationale should applyregardless of whether the materials
furnished to the expert were furnished intentionally or inadvertently. Tracy, 30 S.W.3d at
835
S
36. Accordingly, this Court should DENY, in all parts, Relators’ Petition for Writ of
Mandamus.
D.
Any Objections Pertaining To The Documents In Question, Which
Were Provided To, Reviewed By, Or Prepared By Or For Relators’
Testifying Expert, Should Be Limited To Objections Regarding
Admissibility At Trial, And Such Objections Are Premature And
Not Before This Court.
Because all relevant authorities and principles expressly provide that Relators waived
any and all privileges that might have otherwise applied to the documents in question, the
only possible objections left are those objections pertaining to the admissibility of such
documents at trial, and such objections are premature. Stated differently, the issue of
whether or not the documents in question were discoverable and/or privileged became a moot
issue the minute that the documents were “provided to, reviewed by, or prepared by or for
[Nurse Menzies] in anticipation of [her] testimony.” T
EX
. R. C
IV
. P. 192.3(e)(6)
(emphasis added); see also T
EX
. R.C
IV
.P. 194.2(f)(4)(A). Further, because it is well settled
that “[a]ll or part of a deposition may be used for any purpose in the same proceeding in
which it was taken,” any objections to the continued use of the deposition and evidence in
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question are premature, and serve only one purpose; to deny the parties and citizens of the
State of Texas the truth. See T
EX
. R. C
IV
. P. 203.6(b) (emphasis added). After all, and,
perhaps ironically, the very information and facts that Relators’ expert contends now was not
important or relevant to her opinions is information and are facts that fly directly in the face
of the defenses set forth throughout this lawsuit by Relators. Perhaps the truth lies in that
information and facts, or perhaps it does not; either way, Real Parties In Interest and citizens
of the State of Texas are entitled to search for, and, ultimately, learn the truth.
Although Relators may arguably have objections to the admissibility of such documents at
the time of trial, a determination along those lines is premature and not before this Court.
As such, this Court should DENY, in all parts, Relators’ Petition for Writ of Mandamus.
E.
Relators’ Reliance Upon Rule 193.3(d) Of The Texas Rules Of Civil
Procedure Is Misplaced Under The Facts And Circumstances Of
This Case.
Contrary to Relators’ arguments, Rule 193.3(d) of the Texas Rules of Civil Procedure
does not apply to the facts and circumstances before this Court and/or those before the trial
court. As a general rule, it is true that “[a] party who produces materials or information
without intending to waive a claim of privilege does not waive that claim . . . .” T
EX
. R. C
IV
.
P. 193.3(d). In fact, once a party discovers that privileged documents have been
inadvertently produced, the party has ten (10) days to amend their response and identify the
material or information produced and stating the privilege asserted. Id. However, Rule
193.3(d) of the Texas Rules of Civil Procedure (i.e., the so-called “snap back” provision)
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does not apply to information discoverable under Rule 192.3 of the Texas Rules of Civil
Procedure concerning experts. T
EX
. R. C
IV
. P. 192.5(c)(1) (information discoverable under
Rule 192.3 concerning experts is not protected from discovery as work product).
In this case, Relators’ arguments surrounding Rule 193.3(d) of the Texas Rules of
Civil Procedure lack merit. To be sure, on their face, the documents in question cannot be
considered privileged. As noted previously, once the documents in question were
“provided to, reviewed by, or prepared by or for [Nurse Menzies] in anticipation of [her]
testimony,” the documents became discoverable and any and all privileges were waived.
T
EX
. R. C
IV
. P. 192.3(e)(6) (emphasis added); see also T
EX
. R. C
IV
. P. 192.5(c)(1),
194.2(f)(4)(A). Perhaps equally as important, it bears noting that the so-called “snap back
provision” is found under the main title, “Written Discovery . . . .,” which, at a bare
minimum, implies that such provision is not applicable to the discovery of experts. T
EX
. R.
C
IV
. P. 193. For example, if the documents in question had been produced to Real Parties
In Interest by Relators in response to Real Parties In Interest’ Request for Production, then
Relators might have an argument, upon satisfying their burden of proof, that the documents
in question were privileged, but only so long as the documents were not “provided to,
reviewed by, or prepared by or for [Nurse Menzies] in anticipation of [her] testimony.” Id.
Unfortunatelyfor Relators, the above example does not fit the facts and circumstances before
this Court and/or before the trial court. Perhaps more importantly, the express language of
the current Texas Rules of Civil Procedure and the above-referenced case law on the issue
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facing this Court is clear, concise, and to the point; that is to say that, regardless of whether
the documents were “inadvertently” or “mistakenly” “provided to, reviewed by, or prepared
byor for [Nurse Menzies] in anticipation of [her] testimony,” the documents are discoverable
and any and all privileges are waived. T
EX
.R.C
IV
.P. 192.3(e)(6) (emphasis added); see also
T
EX
. R. C
IV
. P. 194.2(f)(4)(A). Any ruling to the contrary ignores the well established
precedents of this State and the majority of other jurisdictions. Accordingly, this Court
should DENY, in all parts, Relators’ Petition for Writ of Mandamus.
F.
Relators Failed To Satisfy Their Burden To Avoid Discovery Of
The Alleged Confidential And Privileged Documents.
Even assuming, for arguments sake, that this Court determines that the trial court, in
determining that Relators’ waived any and all alleged privileges pertaining to the documents
in question, incorrectly applied the Texas Rules of Civil Procedure as same pertain to
discovery of experts, as well as the interpretive case law, the evidence reveals that Relators
failed to satisfy their burden to avoid discovery of such documents. It is well settled that the
burden is on the party seeking to avoid discovery to plead the basis for exemption or
immunity and to produce evidence supporting that claim. Lowry, 802 S.W.2d at 671.
The purpose of placing the burden on the party resisting discovery is to insure that the trial
court has sufficient information before it to make an intelligent decision whether a privilege
applies. Id. Significantly, if the matter for which a privilege is sought has been disclosed to
a third party, thus raising the question of waiver of the privilege, the party asserting the
Page 45
-35-
privilege has the burden of proving that no waiver has occurred. Jordan v. Fourth Court of
Appeals, 701 S.W.2d 644, 649 (Tex. 1985).
Importantly, a trial judge, who denies discovery in the absence of evidence
substantiating the claim of privilege, abuses his discretion. Lindsey v. O’Neill, 689 S.W.2d
400 (Tex. 1985). Further, with respect to the resolution of factual issues or matters
committed to the trial court’s discretion, a reviewing court may not substitute its judgment
for that of the trial court unless the trial court could reasonably have reached only one
decision and the trial court’s decision is shown to be arbitrary and unreasonable. Walker v.
Packer, 827 S.W.2d 833, 839
S
40 (Tex. 1992).
As noted previously, the Blackmon court, which Relators rely upon, addressed, under
the old, narrow Texas Rules of Civil Procedure, circumstances similar to the circumstances
of this case. Blackmon, 810 S.W.2d 438. The Blackmon court held that “[t]o the extent that
[the expert of the party asserting the privileges] would testify concerning these [privileged]
matters as an expert witness, disclosure by him would have the same effect as disclosure to
a third party, and would result in waiver of the privilege.” Id. As such, the Blackmon court
held that the party asserting the privileges had the burden to provide a reasonable means of
segregating the documents which may form the basis of its expert’s testimony or which the
expert may rely upon in testifying as an expert. Id.
In applying those rules and/or principles to the facts before it, the Blackmon court
noted that the party asserting the privileges produced over 914 documents for in camera
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inspection that covered several different subject matters, including, but not limited to,
attorney’s fees, evaluation of potential witnesses and discussion of trial strategy. Id.
Although the party asserting the privileges asserted general privileges to those documents,
the Blackmon court noted that the party asserting the privileges did not segregate those
documents as to the various subjects which would or would not form the basis of its expert’s
testimony. Id. “[T]he burden was on [the party asserting the privileges] to segregate the
documents not only as to privilege asserted, but as to subject matters involving privilege.”
Id. at 441 (emphasis added). Ultimately, the Blackmon court held that the trial court did not
abuse its discretion in overruling the motion for protection filed by the party asserting the
privileges. Id. To that end, any and all privileges were waived. Id.; see also Weisel
Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (holding that summary listing of
documents under the heading “Attorney-Client/Attorney Work-Product” was no evidence of
privilege, but merely an “unverified, global allegation that the list of documents was
protected by one or both privileges.”)
In this case,like Blackmon and Curry, Relators onlyasserted general privileges and/or
made global allegations of privilege to the documents in question. (R.R. at L.)
Although Relators referred the trial court to the deposition testimony of Nurse Menzies and
the Affidavit of Nurse Menzies to support their contention that none of the alleged
confidential and privileged documents were relied upon byNurse Menzies in the formulation
of her opinions and/or expert report, Relators did so in a conclusory manner and did not
Page 47
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segregate the documents as to the various subjects which would or would not form the basis
of Nurse Menzies’ expert testimony. (Id.) Further, the Affidavit of Nurse Menzies and the
deposition testimony relied upon by Relators directly contradicts previous sworn testimony
given by Nurse Menzies in her deposition. (Id. at H at p. 18, l. 1-6, p. 78, l. 21–p. 79, l. 24,
p. 87, l. 16–p. 89, l. 4.) In fact, in light of the broad scope of Nurse Menzies’ deposition
testimonyand anticipated trial testimony, Relators made itvirtuallyimpossible and/or at least
impractical for the trial court to determine whether or not Relators had satisfied their burden
of proving that no waiver occurred. Because Relators fell short of satisfying their burden,
the trial court correctly determined that Relators waived any and all privileges to the
documents in question. Again, notwithstanding the trial court’s correct ruling, the trial court
is always free to consider Relators’ objections, if any, pertaining to the admissibility of such
documents at the time of trial, including, but not limited to, relevance, etc. The issue of
admissibility is not, however, before this Court and was not before the trial court.
Accordingly, this Court should DENY, in all parts, Relators’ Petition for Writ of Mandamus.
PRAYER
Based on the foregoing, Real Parties In Interest, Mona L. Palmer, Individually, and
as Surviving Parent, and on behalf of the Estate of Brandi Lee Palmer, Deceased, respectfully
pray that this Court DENY, in all parts, the Petition for Writ of Mandamus, and for such
other and further relief to which Real Parties In Interest may be entitled.
Respectfully submitted,
Page 48
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JOHANSON & FAIRLESS, L.L.P.
TODD TAYLOR, TBA#00785087
MIKE JOHANSON, TBA#10670400
CHRIS M. VOLF, TBA#24033299
1456 First Colony Boulevard
Sugar Land, Texas 77479
(281) 313-5000
Fax: (281) 340-5100
ATTORNEYS FOR REAL PARTIES IN INTEREST
VERIFICATION
THE STATE OF TEXAS
§
§
COUNTY OF FORT BEND
§
BEFORE ME, the undersigned authority, personally appeared TODD TAYLOR,
known to me and first being duly sworn according to law upon his oath deposed and said:
“My name is Todd Taylor. I am over 18 years of age, I have never been
convicted of a felony, and I am fully competent to make this Affidavit.
I am counsel of record for Real Parties In Interest the above numbered and
entitled case. I have read the attached Brief on the Merits, and, except for
those statements verified by the affidavits of others and/or through exhibits
included in the mandamus record, I have personal knowledge of the facts
stated therein, and they are true and correct. Further, the documents contained
within the Appendices attached hereto are true and correct copies of pleadings,
motions, exhibits, and/or other documents filed with the trial court in the
underlying action.”
Page 49
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Further, affiant sayeth not.
______________________________
TODD TAYLOR
SUBSCRIBED AND SWORN TO BEFORE ME on the ____ day of February , 2005,
to certify which witness my hand and official seal.
______________________________
Notary Public in and for
Fort Bend County, Texas
Commission Expires: ________
CERTIFICATE OF SERVICE
I hereby certify that on this 7 day of February, 2005, a true and correct copy of Real
th
Parties In Interest’s Brief on the Merits was served upon all counsel of record by telecopier
and/or certified mail, return receipt requested.
_____________________
TODD TAYLOR

Louisiana jail services company, LCS Corrections Services Inc. in an ongoing public corruption investigation

2007-09-09T00:24:00.000-07:00

Premier's benefits didn't stop in Bexar
Web Posted: 09/09/2007 12:41 AM CDT
Todd Bensman
Express-News KINGSVILLE — Bexar County Sheriff Ralph Lopez and some of his friends weren't the only ones in South Texas who enjoyed the benefits of helping Premier Management Enterprises secure lucrative jail commissary contracts, according to interviews and records examined by the San Antonio Express-News.

Like Lopez, the sheriffs of two other counties awarded contracts to the Louisiana jail services company, and either they or their associates reaped financial benefits.

Those sheriffs, now out of office, also boasted to their staffs about going on a golf and fishing trip to Costa Rica with Premier officials, the same trip that last week forced Lopez to resign.

Here in Kleberg County, then-Sheriff Tony Gonzalez, a close friend of Lopez, gave Premier a contract to run his jail commissary when he was in office in 2004 and has been paid by the company for consulting work of an unknown nature.

"I've done some consulting for them here and there," Gonzalez told the Express-News during a brief interview at his ranch-style home on the outskirts of Kingsville, declining to elaborate. "I'm just down here keeping my nose clean."

In Nueces County, one associate of former Sheriff Larry Olivarez, another Lopez friend, reaped rewards after helping Premier win a jail commissary contract there in 2005.

The associate, a commercial real estate broker who was appointed by the sheriff to an ad hoc committee that awarded the contract, later earned a commission from the sale of 56 acres where LCS Corrections Services Inc., another company owned in part by Premier's principals, is building a private detention center, the Express-News has learned.

In addition, the former sheriff's chief deputy won political backing from LCS when he ran as a candidate to replace Olivarez, who had stepped down to run for county judge.

Premier, which has come up repeatedly in an ongoing public corruption investigation in Bexar County for doing favors for influential people in a position to help the company, has denied any wrongdoing.

That investigation, so far, has narrowly targeted only individuals in Bexar County, such as Lopez and his longtime campaign manager, John Reynolds, and Reynolds' financial relationship with the sheriff's wife. Lopez, Reynolds and at least one of their associates helped Premier land the local jail food commissary contract in 2005.

As part of an immunity deal with Bexar County District Attorney Susan Reed, the sheriff resigned, effective Sept. 19, and pleaded no contest Tuesday to three misdemeanor charges, two of which were related to the Costa Rica golf outing he accepted from Premier.

The deal protected him from further state prosecution; his wife wasn't indicted.

Reynolds, who played a key role in awarding the contract to Premier, is suspected by Reed of bribery, extortion, theft, money laundering and campaign finance violations. He also went on the Costa Rica trip and received checks totaling more than $30,000 from Premier and one of its owners for consulting and donations to fake charities Reynolds set up.

An associate of both Reynolds and the sheriff, John E. Curran, voted with Reynolds on a jail board to give Premier the commissary contract, then won a contract himself from Premier to provide temporary workers for the operation.

Largely unexamined is the broader picture of how Premier, its owners, Patrick and Michael LeBlanc, and LCS conducted a business expansion with local government partners throughout South Texas.

A closer look at some of those operations reveals similarities in conduct with local officials that have drawn none of the law enforcement or media scrutiny seen in Bexar County.

Nueces County Sheriff Jim Kaelin, who succeeded Olivarez, is among those who have been watching the news from San Antonio with keen interest because LCS is about to open an 800-bed prison in his county.

So far, no law enforcement agency has contacted him, Kaelin said.

Close relationships

LeBlanc-run companies Premier and LCS operate jail-related businesses in five South Texas counties. The first started in Brooks County in 2000. They have embarked on an aggressive expansion in recent years that has capitalized on tighter federal immigration control policies.

In addition to the work at Bexar County Jail, the companies also operate jails, commissaries or full-scale prisons in Brooks, Kleberg, Hidalgo and Nueces counties. They also run four jails in the LeBlancs' home state of Louisiana and one in Alabama.

Current Texas law makes sheriffs key gatekeepers for contracts such as those sought by Premier and to a certain extent by the prison-building LCS.

Under current law, Texas sheriffs have almost unchecked authority to contract management of their commissaries with no competitive bidding. County commissioners must approve deals to build private prisons but often keep their sheriffs closely in the loop as resident overseers and advisers.

Premier, LCS or sometimes both arrived in counties served by sheriffs who maintained close personal relationships with one another and with Bexar County's Lopez, according to interviews with personnel in several offices.

Lopez's office calendar for the past few years shows he often traveled to visit Kleberg's Gonzalez on weekends for golfing and that Gonzalez traveled to San Antonio. The calendar also shows a number of trips to visit Olivarez in Corpus Christi, where he still lives in a house near a golf course.

At the Kleberg County Sheriff's Office, Gonzalez's former staffers say the three were often joined in golfing and hunting outings by other sheriffs and elected officials in counties where Premier or LCS are doing business today. Among them was Balde Lozano of Brooks County, who did not return three calls for this story.

"He kept a close-knit circle of friends," said Yvonne Barbour, Gonzalez's former office administrator. "I know Tony was a big golfer."

Those relationships would later prove mutually beneficial for the Louisiana companies and the sheriffs or their friends.

Gonzalez, for instance, used his relationships in Nueces County to help Premier and LCS gain entrance there. Assistant Deputy Chief Peter B. Peralta, who worked in the office when LSC first began courting county business, remembered that it was Gonzalez who made the introductions.

Later, Gonzalez approved giving Premier a food commissary contract for his jail during his final weeks in office. At some point either before or after Gonzalez left office in late 2004, he accepted private consulting work from Premier's owners, he and a company official acknowledged.

When Gonzalez transferred the commissary contract to Premier, two lifelong Kingsville residents, brothers who run a small local grocery, felt the pain. Betos Community Grocery had held the contract since the 1970s and had come to rely on the modest commissary revenue as competition from large grocery stores cut into Betos' bottom line. They were told they should only bid for the contract if they had a sophisticated computer system.

"We didn't even get one computer until last year," said Juan Garza, who co-owns the grocery with his brother Albert and supported Gonzalez's last failed re-election bid. "It hurt."

It remains unclear what kind of consulting work Gonzalez did for the company or when it started.

But former five-term Brooks County Judge Joe B. Garcia recalled one occasion — after Gonzalez lost his election — that he came calling, apparently after hearing that Garcia had begun agitating for Brooks County to renegotiate better terms from its LCS detention center contract. It was during this time that Gonzalez phoned Garcia wanting to meet for lunch and talk about local LCS operations.

"I've known Tony for a while. But I didn't want to talk to him about my contract with LCS," Garcia said.

Garcia remembered another story he found disturbing, when Michael LeBlanc himself showed up at his office, accompanied by the man Garcia had just beaten in the election.

That LeBlanc would travel to South Texas was not unusual; he often has personally tended to his business affairs. But Garcia said what he heard made him feel uncomfortable.

"They said if I had a campaign debt, they would contribute to my campaign," Garcia said.

He said he told them he had no campaign debt to pay off and wouldn't have accepted the offer even if he did.

"A lot of people try to do those type of things," Garcia said. "I've always been the type who, hey, I've worked hard for my education. I don't have fancy cars, no ranches."

Attorneys for LCS and Premier have declined all requests for interviews regarding the ongoing investigation in Bexar County or for this report. Last year, the LeBlancs sued the Express-News, alleging they were libeled in articles the paper published in late 2005. The lawsuit is pending.

But Chris Burch, chief executive officer of Premier, acknowledged that Gonzalez had done some consulting work for the company under an arrangement with a predecessor, Ian Williamson, who is no longer with the company. Burch said he was not privy to any details about that work.

Gonzalez still may be working for the company as a paid consultant, Burch said. "I do know he has done some consulting work, but I'm not the one who put this together."

Benefits and campaign

Like Gonzalez, then-Nueces County Sheriff Olivarez helped Premier land a commissary deal in his jail during his final days in office in late 2005. He then quit, as required, to run for county judge.

During his time as sheriff, LCS had a "pass through" contract with Nueces to refer federal prisoners to its other Texas facilities, and it advanced a proposal to build the 800-bed detention center, now nearing completion. The project is expected to generate $800,000 for the county in inmate transfer payments, plus $350,000 to $400,000 in taxes.

The Express-News has learned an ally of Olivarez benefited financially from LCS' effort to build the detention center — after helping the sheriff give the jail commissary contract to Premier. Corpus Christi commercial real estate broker and developer Tim Clower served in late 2005 on an ad hoc selection committee the sheriff appointed to examine bids for the commissary management job, according to the office of Kaelin, the current sheriff.

In February 2006, several months after Clower voted for the commissary contract, he brokered a real estate purchase of 56.6 acres on behalf of LCS for the $20 million detention center. The property's seller, Patricia Ann Bernsen, said Clower's company approached her and brokered the purchase of her farmland for $4,000 an acre, or $225,000.

"He did get a commission, that's for sure," Bernsen said, declining to say how much. "It was a good commission."

On average, commercial real estate agents earn between 6 percent and 10 percent, according to one South Texas commercial real estate broker.

At the time of the sale, the 2006 sheriff's primary race was heating up. Clower co-signed for a $20,000 campaign loan to Olivarez's former chief deputy, Jimmy Rodriguez, whose opponent at the time was publicly criticizing him for helping bring LCS to town. LCS went to Rodriguez's aid by lambasting his opponent.

At one point in the campaign, LCS went public with a threat to halt construction of its detention center if Rodriguez did not win the Democratic primary.

"We're not going to work with or for someone who doesn't respect our company," Michael LeBlanc was quoted in the Corpus Christi Caller-Times as saying about Rodriguez's opponent. "If Mr. (Pete) Alvarez wins, we're out of Nueces County — plain and simple," LeBlanc said.

Rodriguez won the primary but lost the general election. Last week, he insisted that he was paying off the $20,000 bank loan he said Clower co-signed.

"He's been a friend for a long time," Olivarez's former chief deputy said of Clower. "He had a long history with the department before we even got there."

Clower did not return repeated calls seeking comment about the loan or his commission on the LCS land purchase.

Traveling together

The Express-News could not substantiate or refute comments from those in the Sheriff's Office that Olivarez, while he was sheriff, went on the same Costa Rica trip in August 2005 with Lopez, Reynolds and Premier officials.

Olivarez did not return numerous phone calls or respond to a message left during a visit to his home.

Kaelin said Olivarez boasted of the Costa Rica trip and a separate hunting trip to employees who remain on staff.

Kleberg's Gonzalez, while in office, also told some of his staff of going on the same Costa Rica trip, said Kleberg Sheriff Ed Mata, who beat Gonzalez in the 2004 election. Mata conceded that he can't prove the story, but he wondered why no one has investigated as in Bexar County.

Gonzalez, during the recent interview at his home near Kingsville, was asked several times if he would deny going on the trip. He declined each time.

The Costa Rica trip was not the only reputed benefit Kaelin heard about in regard to Olivarez. Shortly after taking office, Kaelin said, a staff person phoned him to report that Olivarez had appeared with a small group of businesspeople seeking to tour the detention center project. Kaelin said he was told that Olivarez had represented himself as an "unpaid spokesperson for LCS."

Kaelin called LCS officials to inquire as to whether Olivarez might have been hired to run the detention center, a prospect Kaelin worried would undermine his office's working relationship with it. But he was told Olivarez had no known connection to the company or employment prospects.

Bexar Sheriff Lopez's office calendar indicates he planned to attend the detention center groundbreaking with Olivarez on Feb. 23, 2006, after Olivarez had left office to run, unsuccessfully it turned out, for judge.

Today, Olivarez works as a manager for the Corpus Christi branch of CGT Law Group International, according to a woman who answered the phone there.

Richard Harbison, a vice president in charge of LCS' Texas operations, is certain that Olivarez has had no financial relationship with LCS. As he was preparing to take his own vacation to Costa Rica, Harbison also said by phone that he was unaware of any paid trips involving sheriffs in Texas and the LeBlancs.

Burch, of Premier, said he was not working for the company at the time of the August 2005 trip.

In Bexar County, where the public corruption investigation has been in high gear lately, District Attorney Susan Reed has said she is mainly interested in prosecuting local individuals such as Reynolds, whom she called "rotten fruit." None of Premier's San Antonio offices have been searched, Reed acknowledged.

"I'm not finished, so I'm not ready to make any definitive determination yet" about Premier, she said.

The FBI and Texas Rangers, which have been involved in the Bexar County investigation, aren't commenting.

Patrick LeBlanc, who last week formally became a candidate for the Louisiana Legislature, is running in part on a message that he will fight against political corruption that "robs us of our confidence in government."

Last week, he told the Lafayette Advocate that he has been cooperating with investigators in Bexar County but couldn't elaborate.

"We haven't done anything wrong," he told the newspaper. "I would never, ever risk my integrity over selling candy bars and potato chips."

tbensman@express-news.net

News Researcher Julie Domel contributed to this report.

City of Kingsville Paid Lawsuit From Hubert's Abuse of Power & Malicious Prosecution & Fed Element

2007-09-08T01:01:00.000-07:00

Google Yourself Corpus Christi: setexasrec: If you disagree, I got 4 brand spankin new ones to put on your family vehicle; oh yeah & one spare just in

2007-08-05T01:27:00.000-07:00

Google Yourself Corpus Christi: setexasrec: If you disagree, I got 4 brand spankin new ones to put on your family vehicle; oh yeah & one spare just in case you survive the blow out.

So WATT does this mean for Texas?

Who is the author?

After reading this article i got to believe the author is not familiar with the adversarial process or the article is pure prevarication. Who wants to buy a vehicle without laminated windows. I don't, but in Mikal's argument it was just mental re-enforcement for the jury and he is representing his client with zeal. .In layman terms Laminated glass, which is two layers of plate glass with plastic laminate in between, is used on automotive windshields. It has been used for decades to keep objects from easily getting through the windshield and entering the vehicle. The negative is it prevent easy exit should one need to break the glass in order to escape in a submerged situation or something of that nature.

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

KENEDENO: "I say hot damn we got ourselves a fighter, and advocate. Now there's an attribute money cant buy, a game mentality moving unencumbered through legal birds nests and over hurdles to accomplish results.

"Like a Pitbull in the Middle of a Bunch of Poodles upon Capitol Hill.

The bottom line is the tire is faulty but it is cheaper to pay the injured and dead than it is to replace all of the tires on all of the brand new vehicles. Well, at least that was the word according bean counters (Actuarial Analysts). I bet they dont work there anymore, eh? When an automaker knows there is a faulty product that will "cause a death or two" and they acquiesce, or continue to produce the vehicle with the defective product and they dont recall the defective product for WATT ever reason they need to pay.

Watt if you or your family member purchased a brand new Explorer or Expedition or Excursion. You plan a vacation and plot out your trip planning to stop for the young ones at the rest areas and to stretch the legs and maybe even swap drivers. Everybody has their pillow and their reading material or headphones and music, for the kids you had the video screen and dvd systenm installed and you even went the extra mile and installed a Playstation III for the kids and the kids at heart.

So we are cruising and everyone is commenting on the comfort, the neat features, the enhanced entertainment, and the overall "On The Road" experience the new vehicle provides.

The last thing on their mind is breaking down, needing to check the fluids every few miles, or rolling down the window because the air conditioning dont work. The passengers and the driver feel secure and safe; maybe they dont even buckle up.

The next thing we know the vehicle has become impaired and unstable. The resulting tumbling, sliding, shattering of glass, screaming, and bending of metal that happens in less than a minute (but feels like a lifetime) comes to a rest and there is a eerie silence for a moment. Then the lucky ones can moan in their pain and the silent ones Vaya Con DIOS. How long before the Halo FLight? How long before rescue?

And you come to find out you have lost 1 or 2 or 5 of your loved ones because of something that makes no sense at all.

I am not talking about the Blowout people, I am talking about the decision made by the automaker that your loved ones were just another number, a casualty in the name of profits.

Would you want an advocate fighting for your interests like Mikal Watts fights the giant automakers?

If you disagree, I got 4 brand spankin new ones to put on your family vehicle; oh yeah and one spare just in case you survive the blow out.

@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@

Mikal Watts' arguments
http://www.setexasrecord.com/arguments/198814-mikal-watts-arguments

8/4/2007 10:58 AM

Three college girls are driving cross-country pulling a U-Haul trailer while simultaneously sharing a bag of marijuana. About 20 hours into the voyage, the driver brakes hard on a hill and loses control, sending the car off the side of the road.

They weren't wearing seat belts.

Was she high? Fatigued? Did she forget that breaking hard on a downslope while pulling a fully-stuffed U-Haul is a big no-no?

Whatever. Represented by Corpus Christi plaintiff's lawyer Mikal Watts in a suburban Houston courtroom, she demanded millions in damages over the accident-- from a tire maker.

No matter that Texas state investigators blamed the wreck on driver error and speeding, concluding the tires remained intact after the crash and worked just fine. Still, Watts argued they were wrong, that it wasn't her fault. He even demanded the judge declare a mistrial when the defense had the nerve to raise the girl's driving-while-pot smoking in court.

Is this the kind of guy-- one who would make such a specious, if self-serving, argument with a straight face-- that we want representing Texas in the U.S. Senate?

Mr. Watts, a 39-year-old mega-millionaire and judge's son who flies private, is traveling the state this summer, raising money and straining to re-define himself as a populist "everyman" in preparation for the Spring 2008 Democrat primary election.

He made his bones making arguments like the aforementioned, suing automakers and other businesses. But suffice to say, he won't be bragging on the campaign trail about the "marijuana mistrial" or his lawsuit blaming Ford for an accident in which the driver was speeding, had been drinking and wasn't wearing a seat belt.

The automaker was at fault because, according to Watts, it didn't laminate its side windows.

Watts will also remain mum about the embarrassing hiccup in that Ford case-- when it was revealed mid-trial that one of his associate lawyers was dating one of the jurors. She had even helped him "recruit" two of the plaintiffs for Watts, evidence showed.

Apparently under no ethical obligation to tell the court about this, Watts remained quiet and steadfast. It paid off-- he won a $31 million verdict.

"Mikal Watts has spent his entire career fighting on behalf of average, working Texans," promised his spokesman in a recent interview.

Don't believe it just because he says so.

The Kenedy Pasture Company: "Mr. Benitez is one of those instructors who are there for students," Camacho said. "I have never seen him turn a student

2007-08-03T08:17:00.000-07:00

The Kenedy Pasture Company: "Mr. Benitez is one of those instructors who are there for students," Camacho said. "I have never seen him turn a student away."

Judge comes to defense of press

2007-07-30T23:46:00.000-07:00

Judge comes to defense of press

Thorns and Roses: 04.06.07

April 6, 2007

Judge comes to defense of press

District Judge J. Manuel Banales of Corpus Christi struck a blow for First Amendment rights on Thursday by quashing subpoenas for the two top editors of The Monitor in McAllen.

Editor Steve Fagan and Managing Editor Marcia Caltabiano-Ponce had been summoned to court over an editorial that called for a judge to recuse himself from a case against another judge. The subpoenas, which represented an implied threat to free expression, had been issued by prosecutors who are charging District Judge Rudy Delgado with misusing official information and of evading arrest.

Give a ROSE to Banales for dismissing an attempt to drag free expression into a court of law.

The fact that patients are still persecuted, is evidence of our failure of democracy.

2007-07-18T04:15:00.000-07:00

Cannabis fought Diebold .... guess who won??!
by Reb Kaplan
Mon Jul 16, 2007 at 06:36:52 PM PDT

Cannabis fought Diebold, and Cannabis Won!

In a local election in Berkeley, CA, a Measure was on the ballot, in support of wider availability of medical marijuana dispensaries. According to elections officials, the measure lost by a very very small margin.

The advocates of the measure sought a re-count, but the re-count could not be conducted, because the records could not be properly retrieved from the Diebold Machines!
{more fun below...)
* Reb Kaplan's diary :: ::
*

But, the great kicker is, that a judge has now issued a public ruling, which shows that County voting officials have been sending data back to Diebold, rather than holding it locally. And, it appears this may be a nation-wide problem -- a private, republican-sponsoring corporation, apparently not only takes back its hardware after the elections, it also retains the only back-up copy of the actual vote records...

See Chron story:

An Alameda County judge said Friday she may void election results for a failed 2004 Berkeley medical marijuana measure and order it returned to the ballot because county election officials failed to hand over data from voting machines.

Superior Court Judge Winifred Smith also indicated that she may force county officials to pay attorneys' fees and reimburse a medical marijuana group more than $22,000 for the costs it incurred during a disputed recount shortly after the November 2004 election.

Smith accused county officials of coming up with a "shaggy dog story" and of having "stonewalled for a very long time" on why they failed to retrieve backup data from electronic voting machines, logs of activity on the machines and other records.

Most of that information was destroyed when the county returned the devices to their manufacturer, Diebold Election Systems, after the measure's advocates had sued the county seeking access to the data.

link

I find it fascinating and compelling that medical marijuana advocates have managed to shine a light on the problem, in real practice, with these voting machines. Medical marijuana advocates, like people speaking out about climate change until very recently, have been ignored or laughed at -- even when they were demonstrably right on the facts.

Also, it makes the link clear between medical marijuana and democracy. Which is a crucial link -- after all, numerous States have voted, often by wide margins, to legalize medical marijuana. While this is not the only time the Administration has ignored a vote of the people -- it is demonstrative of a wider principle. If we were really living in a democracy, then medical marijuana would be legal here. The fact that patients are still persecuted, is evidence of our failure of democracy. The fact that a local measure was blocked by problems with Diebold is also demonstrative of a problem that is going on in many more places.

Tags: Diebold, election fraud, medical marijuana, California, election integrity, Rescued (all tags)

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2007-07-15T01:56:00.001-07:00

The Door: "I forgot to tell you, I'm locked"~Alice in Wonderland (Disney)

2007-04-07T00:46:00.000-07:00

Political Pulse: 03.18.07

March 18, 2007

Work before play as Banales' supporters try to celebrate post

Brenda Baker, a supporter of District Judge J. Manuel Banales, stepped out of the County Courthouse's elevator on Friday decked out in sequins and beads. Baker looked around for county commissioners, saying it was her job to herd them to a limousine waiting to take them to a party celebrating Banales' swearing in as presiding judge of the Fifth Judicial Administrative District.

When it was explained to her that they were in closed session regarding a lawsuit against the county, she said, "Don't they know there's a party going on?"

Judge comes to defense of press

2007-04-06T05:14:00.000-07:00

Corpus Christi- Nueces County Courthouse

2007-03-18T02:24:00.000-07:00

Saturday, March 17, 2007

Corpus Christi- Nueces County Courthouse, Fridays at 5 o'clock are usually quiet but not so for March 16, 2007. Today it was jumping with local attorneys and lined up with two white limos and one black in front of the Lipan street entrance.

A swearing in Ceremonial and party kick-off occasion on behalf of the husband of Nueces County Commissioner Peggy Banales. Her husband, The Honorable J. Manuel Banales, 105th Judicial District Judge, "officially" sworn in as Presiding Judge of the Fifth Judicial Administrative District.

A party was to be held "somewhere" in Robstown directly after the ceremony.

This was not paid for by the county was it?

and if so who is writing this expense off ?

Saturday, February 17, 2007

This appointment is subject to senate confirmation.

2007-02-07T02:03:00.000-08:00

Contact the Press Office
Appointments Division

Jan. 05, 2007
Gov. Perry Appoints Banales As Presiding Judge of the Fifth Judicial Administrative District

AUSTIN – Gov. Rick Perry has announced the appointment of J. Manuel Banales of Corpus Christi to serve as the presiding judge of the Fifth Judicial Administrative District. He will serve a term to expire four years from the date that he is sworn into office. The Fifth Judicial Administrative District serves Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim Wells, Kenedy, Kleberg, Nueces, Starr and Willacy counties.

Banales is currently judge of the 105th Judicial District Court that serves Nueces, Kleberg and Kenedy counties. He is a member of the judicial and Hispanic issues sections of the State Bar of Texas and the Texas Center for the Judiciary, Inc., where he previously served on the board of directors. Banales is also a member of Tuloso Midway High School and Middle School Parent Teacher organizations and served as a past president of the South Texas Substance Abuse Recovery Services, Inc.

Banales earned a bachelor’s degree from the University of Texas at El Paso and his law degree from Bates College of Law at the University of Houston.

This appointment is subject to senate confirmation.

He garnered national attention in 2001 after he ordered 21 .................

2007-01-08T01:07:00.000-08:00

Banales named presiding judge

By Jaime Powell Caller-Times
January 6, 2007

For more than a year, 105th District Judge J. Manuel Banales has been in the running to serve as presiding judge of the Fifth Judicial Administrative District.

Banales' appointment by Gov. Rick Perry on Friday marks the first time the position has been held by a judge outside of the Rio Grande Valley in more than 20 years. It's also the first time in more than two decades that a Hispanic judge has been tapped for the job.

The seat has been vacant since December 2005, when long-time Cameron County administrative judge, Darrell Hester, died. There were several judges from the Valley vying against Banales for the position, which has jurisdiction over Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim Wells, Kenedy, Kleberg, Nueces, Starr and Willacy counties.

About Bañales

J. Manuel Bañales is currently judge of the 105th Judicial District Court that serves Nueces, Kleberg and Kenedy counties.

He is a member of the judicial and Hispanic issues sections of the State Bar of Texas and the Texas Center for the Judiciary, Inc., where he previously served on the board of directors. Bañales is also a member of Tuloso Midway High School and Middle School Parent Teacher organizations and served as a past president of the South Texas Substance Abuse Recovery Services, Inc.

Bañales earned a bachelor’s degree from the University of Texas at El Paso and his law degree from Bates College of Law at the University of Houston.
"I was optimistic after almost a year of waiting," Banales said. "I was hopeful and I never lost confidence about getting the appointment. I had support from friends in good places."

As administrative judge, Banales, 56, will retain the 105th District Judge's bench and will take on a broad range of new duties. He will be responsible for the assignment of judges when a regular judge is unavailable because of sickness, vacation or recusal. If a recusal is granted, he is also responsible for assigning judges to hear cases. He will conduct meetings with fellow judges at the regional level and serve on a state committee made up of eight fellow administrative judges, Texas Supreme Court Chief Justice, the presiding Judge of the Court of Criminal Appeals and two lawyers, which is responsible for court administration statewide.

"I expect to perform my judicial duties as usual; however whenever the need arises there's a pool of judges available to fill in for me," Banales said.

He will serve a four-year term and be eligible for reappointment.

First elected in 1986, Banales is one of the state's longest serving and most experienced district judges, fellow judges said. He garnered national attention in 2001 after he ordered 21 registered sex offenders to places signs in their yards and bumper stickers on their cars identifying them as a danger.

Banales is also one of the hardest working and most qualified judges, according to former District Judge and former nominee to the U.S. Fifth Circuit Court of Appeals Jorge Rangel.

"Less than 10 percent of judges have served as long as he has," Rangel said. "He is one of the few judges in the state who is board certified (criminal law). He is also one of the hardest working trial judges based on the number of jury trials he presides over. We are fortunate to have someone with his experience, judgment and wisdom willing to take on this very important position."

District Judge Sandra Watts said the appointment is not only an honor for Banales, but also for Nueces County.

"It goes to the fact that a good judge is not necessarily determined by whether they have a D or an R in front of their name," Watts said. "You have Judge Banales, a Democrat being nominated by the Chief Justice of the Supreme Court Wallace Jefferson, a Republican. And the governor, who is a Republican, is naming a Democrat."

Justice is not partisan, said Robert Black, a spokesman for Gov. Perry.

"The governor felt that Judge Banales was superbly qualified and the best person for that court to serve Texans in those counties," Black said. "He is an exemplary judge and will do a great job."

Contact Jaime Powell at 886-3716 or powellj@ caller.com

Judge is often found at heart of contention

2006-12-29T08:42:00.000-08:00

[ Email this Page] Sunday, June 3, 2001
The mind behind the sex controversy
Judge is often found at heart of contention
By Jeremy SchwartzCaller-Times
Paul Iverson/Caller-Times
Judge J. Manuel Banales defends his decision to order some convicted sex offenders to post signs in their yards and on their cars as an effort to promote neighborhood safety.In the past week, his mustachioed face has been beamed across televisions from Maine to California and his image has been reproduced in newspapers in London and Santiago, Chile.
He has become known nationwide as the judge who ordered the signs, the man who set off a chain reaction of controversy when he forced more than a dozen sex offenders to place warning signs in their yards and on their cars.
Outside the Nueces County Courthouse, little else is known about 105th District Judge J. Manuel Bañales, the product of a close-knit barrio in El Paso and the social justice movements of the 1960s and 1970s.
In 25 years of practicing law, and 14 presiding from the bench in Corpus Christi, Bañales has developed a reputation as someone unusually thoughtful about his legal deliberations, but something of a maverick when it comes to handing out sentences.
Douglas Tinker, a local attorney who has known Bañales since the judge was a greenhorn lawyer, said he was not surprised that, of eight Nueces County district judges, Bañales was the one who ordered the signs.
"He likes to try different methods, new things," Tinker said. "He doesn't mind the limelight. I think he has political ambitions, not that there's anything wrong with that."
Read all about the controversiesRead Caller-Times coverage of the sex offender signs stories, and the no-sex before marriage order.An activist streak
Since becoming district judge in 1986, Bañales, who is married and the father of five children, hasn't shied away from using his position to bring about changes, an activist streak that dates back to protests and sit-ins at the University of Texas at El Paso.
Shortly after moving to Corpus Christi after attending law school at the University of Houston, Bañales, then a defense lawyer, organized a demonstration against the light sentence given to three Houston police officers charged in the death of a Hispanic man.
A decade later, after finally winning election, Bañales became active in trying to stiffen drunk driving laws, drafting legislation that ultimately became the basis for today's punishments.
Retired District Judge Robert Pate said Bañales has never been just a clerk, moving cases along. "He's a person exercising independent judgment and discretion to make a difference," Pate said.
Safer neighborhoods
Mike Westergren, a retired district judge who defeated Bañales in the 1980 county attorney election, said Bañales has been an innovator on the bench for as long as he can remember.
"He's usually on the cutting edge, taking new approaches to things," he said. "He was the first to do a lot of things around here."
"I hope people don't remember me just for (the signs)," Bañales said.
But despite his hopes, Bañales' career could very well be defined by his May 18 order, something he says he can live with if people recognize why he did it.
Bañales has told news organizations across the country that his order was designed to protect the community. In a recent interview the judge gave more insight into his ruling, suggesting that he hopes the signs help in returning neighborhoods to the places he remembers from his El Paso childhood.
'Live with each other'
"I hope (the order) makes neighborhoods tighter, makes neighbors closer," he said. "By watching out for each other, we can learn to live with each other."
Bañales, 50, says many of his beliefs come from his childhood on the south side of El Paso, growing up in a one-story house a long football throw from the Rio Grande with eight siblings.
His father fed the furnace at the local smelting plant while his mother, born in Mexico, was a seamstress. He didn't learn English until first grade, and lived in an insulated world of Spanish speaking neighbors, baseball games and pranks at the railroad yard near his house. It was a neighborhood, he remembers fondly, where neighbors trusted each other enough to leave their doors unlocked.
When he was 8, Bañales joined the local Little League. "That first year I had the makings of a judge because I sat on the bench all season long," he joked.
But the baseball team, coached by a group of police officers, would prove influential on the rest of his life.
"What those officers taught us was respect for the law," he said. "We learned to play by the rules. In order to enjoy life you have to play by the rules."
Bañales remained on the south side until his family moved to the more Anglo central El Paso after his neighborhood was returned to Mexico as part of a government deal. He attended a majority Anglo high school, a big adjustment for Bañales.
Junior LULAC president
In 1965 Bañales attended his first Junior LULAC meeting with his older brother. He was immediately attracted to the order and organization of the group. "These were kids who were arguing in a civilized way. It was organized, controlled and I liked that," he said.
Three years later he became national president of Junior LULAC, a position that allowed him to travel around the country and meet influential people, most of whom were lawyers and sparked his interest in joining the legal profession. That year he enrolled in the University of Texas at El Paso, just as the movement for Chicano rights was catching fire.
He soon switched from engineering to pre-law and joined several Hispanic organizations. Most of the protests were attempts to bring more Hispanic professors and administrators to the university.
At one point, Bañales was among a group of students planning to take over the student union and get themselves arrested to draw attention to their cause. On the day of the sit-in Bañales rushed to bring his mother lunch and return to school. "I went back and it was all over, everyone was in jail," he said. "So much for my protest. I had a guilt trip for the longest time."
After graduating from the University of Houston law school in 1974, Bañales joined La Raza Unida party leader Ramsey Muñiz, who was starting a practice in Corpus Christi. Muñiz later went to prison on drug charges and Bañales moved on, working in various law firms before striking out on his own in 1981.
"He had a reputation for being very hard working and being very knowledgeable," said local attorney Jorge Rangel of Bañales, who specialized in criminal defense law.
"He was a good lawyer, not exceptional," said former District Judge Joaquin Villarreal, before whom Banales practiced before joining the bench.
Tinker remembers Bañales as a capable and well-prepared attorney, but not one who particularly stood out. "No question he was very bright," he said.
'I liked the action'
Bañales made a couple of unsuccessful forays into politics before winning election in 1986. In 1980 he ran against Westergren for county attorney, in 1982 he ran for the 148th District Court and the next year tried for the newly created 347th District Court.
"Public service was an attraction for me," Bañales said. "I loved the courtroom, I liked the action. I felt I could make a difference as a judge."
In his 14 years on the bench, Bañales has been no stranger to controversy. Two years after his election, he became entangled with then District Judge Max Bennett, who fought to have his retaliation and official misconduct charges moved from Bañales' court. Bennett accused Bañales of harboring personal animosity toward him and the case - which was eventually dismissed - was reassigned from Bañales' court.
In 1990 Bañales became the first district judge to allow television and newspaper cameras in the courtroom, a move that riled some of his colleagues.
Effect of other rulings
Two years later, Bañales entered the complex world of Corpus Christi Independent School District politics, ruling that the school board must post the names of superintendent candidates they were interviewing. That ruling returned to the news recently when CCISD officials attempted to conceal the names of candidates to replace Abelardo Saavedra.
Also in 1992, Bañales set defense attorneys' teeth on edge when he sentenced a drug smuggler caught with 54 pounds of marijuana to 54 years in prison.
Pablo Diaz had been offered a plea agreement by the prosecutor for 10 years' probation but couldn't come up with $2,000 cash of the $5,400 fine that would have accompanied it.
Bañales said at the time his goal was that would-be drug traffickers realize the consequences of their crimes. That ruling was overturned on appeal.
'He runs a tight ship'
And in 1997, Bañales, whose district includes Kleberg and Kenedy counties, was sued by Kleberg County over having to pay for the salary of a roving court reporter.
Bañales has drawn generally favorable reviews from attorneys in his court. "I like trying a case in his court," Tinker said. "He knows what he's doing and that's important. He runs a tight ship."
Bañales has been known to upset attorneys by setting dozens of cases for the morning.
David Diaz, a local attorney and former district judge, said Bañales can be too set in his ways. "He's highly opinionated," said Diaz, who has known Bañales since the 1970s. "He sticks to his guns, right or wrong."
Several colleagues and friends agreed that a distinguishing characteristic of Judge Bañales is the thought he gives to each ruling.
"I guarantee he grieved over (the sign decision) a long time," said Bañales' former partner Dan Alfaro.
Despite the backlash from his ruling, Bañales says he's going to stick by his guns once again. He has denied several motions to rescind his order and unless an appeals court overturns his ruling, the signs will remain up across the city.
"I'm comfortable with it," the judge said. "I can sleep at night."

Judge's career includes landmark sex offender case

2006-05-27T02:19:00.000-07:00

Judge's career includes landmark sex offender case
State Judge- Manuel Banales

By Kara Perez
CorpusBeat Magazine

Manuel Banales knew he wanted to practice law from the beginning of his undergraduate schooling. As the State 105th District Court judge, Banales has nearly 20 years in the legal profession. He was one of the first judges to have sex offenders place warning signs outside their residences, and also the first judge in Corpus Christi to allow cameras in the courtroom. Banales hopes to capture a sixth term in the 2006 election.
CAREER PROFILE: MANUEL BANALES
CorpusBeat: How would you, very briefly, describe what you do? Manuel Banales: I hear all kinds of cases, civil and criminal. The criminal side includes accusations of violations of state penal laws and determines, for the most part, whether the person is guilty or not guilty. Often times a person likes to have a jury decide the issue, and I make sure that the case is tried according to the rules. Most of the criminal cases wind up guilty pleas from the defendant because the state does get the right person. Even if the person knows he or she is guilty, they still have the right to a jury trial and may force the state to prove them guilty. On the civil side, I hear disputes between parties, such as who pays whom for what and how much and that raises complex issues. If a case goes to trial in January it will take anywhere from four-to-five weeks, which is rather long. Most other civil cases for the most part settle (out of court), and don’t involve such complex issues. We have your typical car accident cases and I also hear family law issues. Some have said that the role of a judge is that of an umpire or referee. However, I see a judge as more of a person who is called upon to decide questions of fact and of law. A referee or umpire makes decisions unilaterally without being asked to do so. But for a judge, often times a judge will not make decisions unless the judge is asked to make the decision. Even if the judge sees that something is being done wrong, unless it is so egregiously wrong, the judge does not step in to resolve the issue. The judge has to wait for a trial or a hearing for a request to make a decision. CB: Who makes the request?MB: Criminal cases are set for trial whether the accused or the state requests a trial. Civil cases are usually set when the attorneys or the parties request a trial setting.CB: How long do criminal trials usually last?MB: The length of any trial depends on the complexity of the case. I have had criminal trials that were done in one day. The longest has taken six days.CB: What requirements are necessary for a state district judge? MB: In Texas, a state district judge must be a lawyer who is licensed in the state of Texas, licensed for at least four years, a resident of Texas, and a United States citizen. Most who become judges have been a lawyer for at least 10 years, a substantial amount of time.If you want to be an appellate judge, that is a judge who reviews decisions made by a judge of a lower court, the requirements are essentially the same except that a lawyer must have been licensed for at least 10 years. It’s a higher level of judge, because that judge reviews decisions of lower court judges; they need that much more courtroom experience. If you are a JP (Justice of the Peace), the judge does not have to be a lawyer or can be anyone who is 18 and an eligible voter. CB: Who do the state district judges report to? MB: We report to the law. There is no one that we report to on the outcome of cases other than, of course, the physical purposes an agency allows them to see how many cases were disposed of in a court and what kinds of cases. Criminal cases, different civil cases, and family law cases we report through the county clerk’s office, including the numbers and kinds of cases that are disposed of. We also have to report the numbers of cases that are pending, so the bureaucrats in Austin can see what we are doing. Last year I tried 46 jury cases, while some of my colleagues tried less than 10. There are all sorts of factors and we have to remember that we are human beings and we hear cases involving human beings and there’s all sort of things at play. There are times when we just can’t predict the length of a trial.CB:What are your major tasks and responsibilities? MB: In addition to deciding cases in court, we also have administrative duties and responsibilities. In Texas we supervise several departments. The adult probation department supervises persons who are found guilty or who have entered a plea of guilty and don’t go to prison but remain on probation under good behavior. We also supervise a juvenile department for kids up to 17 and hire directors for those two departments and hire the county auditor. A county auditor is a person who supervises the county financial affairs and is required to see to it that the county is within its budget every year. We also appoint the county purchasing agent along with county commissioners and essentially supervise those departments. We have duties in a courtroom that require us to address petitions and complaints and other matters outside the courtroom. The district judges have to meet on a regular basis to conduct matters that pertain to the judiciaries here in Nueces County. I also serve two other counties, Kleberg and Kenedy counties, and there I am the only district judge and I run the judicial department all by myself without having to deal with anybody else. CB: Does this bring upon any additional challenges? MB: It depends. The bigger counties, for the most part, don’t have other counties that one or more other judges serve. Mine is kind of rare in the sense that I have a big metropolitan county, Nueces County, a population of about 250,000. On the other hand I’ve got two small counties, one of 28,000 and the third one of about 400 people. That does not mix. The courts that have two or more counties usually are of the same size. It’s unique and an attractive element to this court because I’m in a different county each month. The way we do things over there is different than the way things are done over here (Nueces County). Things are a little bit more fast-paced over here, whereas over in the other counties it’s a little bit more laid back. CB: How many districts are there in Corpus Christi? MB: In Nueces County we have eight district courts. In Texas, there are 1,215. CB: What types of cases go through your court? MB: Criminal cases, murder cases, drug and robbery cases, and what we now call intoxication manslaughter, and that is a driving while intoxicated (DWI), a driver who has an accident and kills somebody else either in his own car, a pedestrian or somebody in another car. That is a second-degree felony and carries serious punishment; up to 20 years in prison. We also hear a lot of methamphetamine (drug that affects the nervous system) cases. CB: During your career, you ordered 21 sex offenders to post signs in front of their houses that read, “Danger: registered sex offender lives here.” What inspired you to do this? MB: Whenever I was asked to speak to various groups I would ask, "How many of you have seen a registration of a sex offender in a newspaper?" Rarely would a hand go up that they had seen that notice in the newspaper. I concluded that was not enough, and because of that I ordered the sign on those offenders. After an examination with a psychiatrist or psychologist, those who were believed to be a danger to the public, non-compliant, or if substance abuse had been a part of the offense, then I would order the condition (posting the sign) for them. Other factors that came into play, then (the result would be that) those sex offenders would have a sign in front of the residence and a smaller one on their car. CB: What were the offender’s reactions? MB: They were surprised and they obviously didn’t like it, but they had to do it in order to stay on probation. They challenged me. For example, they claimed vigilante action against them. That never happened, although one said that he did not have any witnesses to prove that had occurred. There were some that said, “This is victimizing my family, my wife and children.” They said it would reduce or lower their property value. I’ve got to protect the children. They gave me all sorts of reasons and I rejected all of them. CB: How did the public react? MB: (They were) very supportive. It was amazing. For the longest time, wherever I went, people would stop me. Strangers at H-E-B, the mall, even out of town people would recognize me. Even to this day, the people like what I did. CB: What was the outcome? MB: I appeared on the "Today Show" with Katie Couric, and on one of the stations here, Channel 6. Also, there was Ted Koppel, Bryant Gumbel with "The Morning Show", Wall Street Journal, Time Magazine, and USA Today. CB: What are some of your most memorable cases? MB: We had one case that convinced me to do more than just put sex offenders on probation. We had a little girl, about 8 or 9 years old, on her way to school. A sex offender that I had sent to prison for maximum 10 years, got out on parole in early 1990s, rented a house, and he lured this little girl into his house using a live rabbit. The reports were that nothing happened to her other than the scare and the fright of what could have happened. He was eventually tried and convicted under a new law, which says that when a sex offender commits a second sex offense, the only punishment that person can receive is life in prison, which is 30 years, day for day. I did not try the case the second time, only the first one. The other case involved a defendant who molested a girl from about the age of 8 or 9 years old until she passed age 14; he was convicted of five counts of indecency with a child and charged with almost 10 counts of either aggravated sexual assault of a child, or sexual assault of a child. I stacked his sentences so that he would be in prison for about over 300 years and he would not be eligible for parole until about 110 years. In other words, you know where he’s going to die. CB: Do you handle many high-profile cases? MB: Yes, I was the first person in this county that allowed cameras in the courtroom. Until about the early 1980s, judges were not allowed to have cameras in the courtroom, and then the Texas Supreme Court changed the rules.I believe that the media should have access to the courtroom because the courtrooms belong to the people. I allow the media to go in under certain rules and conditions.For example, you can’t go around following the witness or put the camera to the chair of the witness. The rule that I imposed was I am going to put you in a spot, and you stay there and don’t move. They cooperate because they want to be in. CB: What affect did this decision have on the courtroom?MB: Allowing cameras in the courtroom provides the public the opportunity to see what goes on in their courts. In essence, it opens up the courts to the public.CB: How many years have you been involved in the legal profession? MB: I’ve been here for 30 years. I was a lawyer 11 years and I’ve been a judge 19 years now. CB: What do you feel has been your greatest accomplishments? MB: In the early 1990s I made the Corpus Christi Independent School Board (CCISD) obey the open meetings law. The school boards that existed back then had conducted some meetings that were, in my opinion, in violation of the open meetings act, and that occurred during a time when they were conducting a search for a new superintendent. I nullified whatever decisions they had made that were leading to the selection of the superintendent and told them to start all over again, but this time in compliance of the open meetings act, which required them to conduct their meetings out in the open instead of in private clubs, going out of town, or away from the general public. They then conducted their meetings in compliance with the law and made their selection. I tried a capital murder case (The State of Texas v. Richard Brimage, Jr.) where the defendant killed a young woman who the year before had been high school queen in Kingsville. It took us two and a half days to pick a jury and less than five trial days to try the case. Most judges have taken from three-to-four weeks to as long three-to-four months just to pick a jury, and I did all of that in less than two weeks. The jury found him guilty and eventually he was executed. CB: What practices or initiatives do you think set your court above the rest? MB: The dockets are always moving on the criminal case side. I have half a dozen or a dozen or more cases and cannot always try all of them so I try all that I can. Those that are not reached are put on the docket for next month. Then I take on the next caseload. The civil side relies a lot on mediation. I try very few cases to a jury and use a lot of techniques for parties to settle or talk with each other, or eventually turn to a jury. CB: How are dockets moved throughout the courts? MB: In Nueces County, and in most counties in this state, each court has a court manager or court coordinator who manages and dockets the cases for hearing or trial. It is the job of the court manager to see that cases are promptly set for hearing within the time requirements set by law. CB: What challenges do you see over the next five years? MB: Trying to stay ahead of the criminal docket. Crime has come up and is always a constant challenge. It’s hard to stop crime. Texas is not light on drug abuse and as a result, takes up a lot of our time. I would prefer taking on more serious cases. CB: How can high schools or colleges better prepare young people for your profession? MB: The best way is by continuing their education, reading a lot, read at every opportunity. Also doing a lot of writing, not just by the use of a computer, but pen and paper writing. If they want to be a courtroom attorney, take a lot of public speaking courses, such as debate. CB: Looking at your career field, do you see any differences in young people coming into the profession today versus when you started? MB: They have improved the practice of law and resources to the judiciary. Some law schools are now going to provide laptops to their students. We’ve come to the point where we really do not need books. Whenever I need a case while on the bench, I turn to the computer and there I have it. Lawyers will be at a disadvantage if they do not know how to utilize their computer skills and learn how to use the resources on the Internet. CB: What do you feel are the top three qualities that make a good employee? MB: Understanding his or her duties and responsibilities, readily able to adapt to changes that always occur, and a willingness to take direction. CB: Outside the workplace, what are some of the ways you volunteer or “give back” to the community? MB: I go to schools and talk to students as young as first grade. I’ve gone to Del Mar College and have been asked about various things. The State Commission of Judicial Conduct (SCJC) imposes some kind of rules on work outside the office. For instance, we cannot raise money for Boy Scouts, or ask other attorneys for money for a certain cause. CB: Have you won any awards? MB: Community organizations recognize judges from time to time. I’ve been recognized by a local LULAC (League of United Latin American Citizens) organization and Hispanics Network within the last five years. I believe both did so, in part, because of my decision protecting children and other victims from sex offenders. (When) I required that probationers who were sex offenders place in front of their residences a sign stating that they were sex offenders. Doing so would give the public the opportunity to take adequate measures to protect themselves and their children.CB: Please describe any person from high school or college that helped direct you to this career. MB: About 35-to-40 years ago, when I was in college, I chose engineering and law during a career day, because engineering was a hot topic at the time. The engineer who spoke to us at career day was kind of boring. When the lawyer came in, he was much more exciting. He told us you could make $40 an hour. We were wowed. Someone today can make as much as $400 an hour. I saw a lawyer as having the most impact, both inside and outside an organization and locally, as well as nationally. CB: What was the first job in your career, how long ago was that, and how did it lead you to your current position? MB: After college, it was in 1975, I became a general practice lawyer. I worked for a lawyer who had a storefront office and then I became a trial court lawyer. CB: Do you have any advice for high school or college students who might be interested in this field as a career? MB: Continue your education and hit the books. When I was an undergraduate, I studied about 10-to-12 hours a week. Then, when I went to law school, I was studying 10-to-12 hours a day and there were many thick books I had to read. CB: Your wife, Peggy Banales, is a county commissioner. What is it like being married to another county official? MB: It’s interesting. We both work in the same building, although we don’t commute together. Her schedule requires her to leave the courthouse regularly and meet with a lot of people outside of the office while I stay in the courtroom throughout the day. She has many after-five engagements but she enjoys it and I enjoy that she enjoys it. CB: Outside the office, what do you do to mentally unwind? MB: I like being outdoors. I enjoy the yard work at my home. It gives me time to think about things and rehash arguments from the day or week before. Home is important. CB: What music or performer do you like?MB: I like classical music. I played the cello in high school. I also like to hear cello music. CB: What good book have you read lately?MB: I read a lot of fiction. Lately, I mainly read law books, biographies. One book I read and I like was “Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey” by Linda Greenhouse. He was a Supreme Court Justice from the early 1990s. You learn a lot from biographies. I’ve picked up a couple of pointers as a lawyer through the principal and approach that guided me in a case in 2001 and 2002, helped me a lot. CB: What anecdote or story can you share—funny or serious—that relates to your work or choosing your career?MB: When I was in Junior LULAC, a lawyer (in LULAC)I knew, through his skills as a lawyer, was able to pull mostly everybody together over an issue which may have had something to do with housing, and resolved it essentially along his ideas and his own proposals. He had the group together to disregard the issue at hand. What impressed me was simply his initiative to do it though it was very difficult to accomplish, and yet he got it done. This encouraged me to consider law. SOURCES: Banales, Manuel. Personal interview. 22 Nov 2005.
VITAL STATS

Name: Manuel Banales
Age: 55
Occupation title: State judge
Education: Bachelor in Arts of political science, University of Texas at El Paso; doctorate of juris prudence, University of Houston
First job: Working as a runner for lawyers in El Paso
Best job: His current one
Career Path: 1980 at a storefront law office, 1986 ran for office, 1987 judgeSalary in 20's: $20,000
Biggest challenge: Maintaining a good balance between job and family

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Don’t mess with the judge!

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By Vanessa Perez - In a routine case in the 105th District Court Monday, Judge Manuel Banales demonstrated that he is, in fact, a force to be reckoned with, when two Jim Hogg County Sheriff’s deputies who were subpoenaed as witnesses, did not appear as instructed. According to Assistant District Attorney Robert Flynn, the two did show up as instructed to a previous trial, but instructions for the men to appear Monday, sent to Jim Hogg County by the district attorney’s office, received no response. The trial was briefly put on hold as Kleberg County DA’s office secretaries attempted to reach the men or their superior. “Tell them either they get here or I’ll have an order sent to pick them up and hold them in jail here overnight so they’ll be safe and sound until (court) tomorrow morning,” Banales said very seriously. Once their superior was reached, Flynn told Banales that the men were working an undercover operation about 75 miles out, and would be able to appear at 8:30 a.m. Tuesday. Banales agreed, and the trial began. However, it recessed early in the afternoon, until the men appeared to testify Tuesday. Flynn attempted to prove that the defendant, Veronica Soto of the Rio Grande Valley, had knowledge of 83 pounds of vacuum-packed marijuana that United States Border Patrol agents found inside the gas tank of a truck in which she was a passenger in mid-July 2005. Flynn called the Jim Hogg County officers to testify because they were involved in a Jim Hogg County case in which Soto previously pleaded guilty to the same judgment. Their testimony, however, was not enough for the DA’s office to meet its burden of proof, and a jury found Soto not guilty on 2nd degree felony charges of possession of marijuana.

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