Justice

 County Attorney Escamilla Wants to
Close the Courtroom, Seal Records

‘The Austin Bulldog’ intervenes to oppose
this unusual action to deny public access

by Ken Martin
© The Austin Bulldog 2017
Part 7 in a Series
Posted Friday February 25, 2017 12:21am
Updated Tuesday February 28, 2017 5:02pm to clarify Escamilla's statements (see underlined text)

To keep a Deferred Prosecution Agreement (DPA) from being obtained by a victim of domestic violence — and ensure that it isn’t widely disseminated — Travis County Attorney David Escamilla has taken the extraordinary step of requesting that a hearing be held in a closed courtroom and that the related exhibits, motions, and responses to be argued in court be sealed because they might make reference to the DPA.

The Austin Bulldog filed a petition February 21, 2016, to intervene and oppose the County Attorney’s petition.

Courts are rarely closed, except in some family law cases involving child custody. Honoring this principle provides transparency and accountability. It avoids courts being thought of pejoratively as a Star Chamber, the ancient English tribunal “established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes.”

If the County Attorney’s petition is granted it would deny public access to courts, which is a cornerstone of our system of justice that is grounded in Texas law and the First Amendment, although this right is not absolute. Courts are sometimes closed to prevent dissemination of sensitive information to the public, such as matters dealing with attorney-client privilege, trade secrets, and matters of national security.

The Austin Bulldog’s motion states that the County Attorney’s petition to seal records fails to articulate — or to provide any evidence at all — of any “specific, serious and substantial interest which clearly outweighs” the presumption of openness of court records.

Attorney Bill Aleshire represents the Bulldog in this matter, citing in the motion Texas Rules of Civil Procedure 76a(3), which allows non-parties who pay a filing fee to intervene as a matter of right for the limited purpose or participating in proceedings.

“Trust in any governmental activity is enhanced with transparency,” said Aleshire, a former Travis County judge and before that tax assessor-collector. “And that trust is diminished with secrecy.  Why should any deals a prosecutor makes with any defendant be concealed from the public?  Is secrecy about prosecutor deals really in the public interest?  In this day of enhanced concerns about equal justice (e.g., Black Lives Matter) does secrecy about who gets what deal from a prosecutor enhance or diminish trust and respect for the criminal justice system?”

A hearing on the matter was originally scheduled for February 22. The hearing was rescheduled for March 8 after the County Attorney learned through The Austin Bulldog’s motion and Aleshire’s e-mails to him that the county had failed to comply with the requirement to post notice with the Clerk of the Supreme Court of Texas.

Why intervene?

Boards of Examiners Ripped for Backlogs

 Sunset Review rough for boards that license and regulate
professionals who play key roles in child-custody cases

by Ken Martin
© The Austin Bulldog 2016
Part 6 in a Series
Posted Friday December 16, 2016 10:39am

The Austin Bulldog’s investigation of problems in family law courts involving child-custody cases includes a review of complaints against some of the professionals appointed by courts to provide related services. Specific complaints will be detailed in later installments of this ongoing series. An overarching question is why does it take two or three years to resolve complaints against these practitioners? The answer was revealed in the biennial exercise known as Sunset in Texas, which is now underway.
 
Sunset in Texas is not the romantic experience the name might imply. It’s not a time for kicking back, sipping a beer, and watching the sun dip into the chilly waters of Lake Travis. Sunset in Texas is a time for a deep and probing examination of a good portion of the 130-odd Texas governmental agencies to learn how well they are performing. It’s a time for determining whether the sun should set on their work and deciding if these agencies should fade into history.
 
Although the Sunset process for the 2016-2017 cycle is scrutinizing 25 separate agencies, this story will focus solely on the four professions whose services are utilized to varying degrees in family law cases involving child custody: Professional Counselors, Psychologists, Social Workers, and Marriage and Family Therapists.
 
Practitioners in each of these professions are licensed and regulated by a separate Texas State Boards of Examiners. Each of these boards will be abolished unless lawmakers reauthorize them in the 85th Session of the Texas Legislature that convenes January 20.
 
As with all agencies now under review, if these four are reauthorized they could be radically reformed. They could also be moved under the umbrella of a different state agency.
 
Three of these Boards of Examiners—for Professional Counselors, Social Workers, and Marriage and Family Therapists, which collectively oversee some 50,000 licensees—currently receive administrative support from the Texas Department of State Health Services (DSHS).
 
It’s apparent these three boards will not be left to continue floundering as they have been, based on the scathing review of their performance aired during a December 8 hearing of the Sunset Advisory Commission. Under the current operating procedures and with insufficient staff support from DSHS, they have not kept up with the workload. The backlog of unresolved complaints against the professionals they regulate has grown exponentially in recent years.

During Fiscal Years 2000 through 2006, the average length of time for these three boards to resolve complaints rarely exceeded 200 days. But since FY 2007 the length of time needed to resolve complaints has been rising steadily and now stands at 2.3 years for marriage and family therapists, 2.9 years for professional counselors, and 3 years for social workers.
 
These delays fail to protect the health and safety of Texans—many of whom are struggling with litigation and mental stress. The delays also soil the reputation of practitioners who may have been wrongfully accused of misconduct and would like a timely opportunity to clear their names.
 
The Sunset Advisory Commission Staff Report recommended that the Board of Examiners of Professional Counselors, Social Workers, and Marriage and Family Therapists all be transferred to the Texas Department of Licensing and Regulation (TDLR) by August 31, 2018.
 
In addition the staff report recommended that the boards’ complaints and ethics committees be abolished, that board members not be involved in investigating complaints, and that TDLR develops a policy for prioritizing complaints and updates enforcement plans. In addition the report calls for throwing a wider net when checking the backgrounds for licensure applicants to include fingerprints and checks for disciplinary actions taken in other states. 

Psychologist examiners board excels

 A Troubled Father’s Last Chance

A mother fears he has not kicked
his addictions or changed his ways

By Ken Martin
© The Austin Bulldog 2016
Part 5 in a Series
Posted Wednesday October 26, 2016 2:23pm

This is a story about one of the 5,615 divorce cases filed in Williamson County involving children under the age of 18 during the five-year period ending December 31, 2015. It started with a divorce in 2011, involved three separate lawsuits, and culminated last month with a final order.

Jack Walton Lumus, 43, might be less than a perfect father to his five children. Four of the children were born to three women. He adopted the fifth child (his third wife’s daughter) when she was 10. Four of the children now range in age from 19 to 22. For more than two years he did not see his youngest son, now 11 (and who will not be named in this story due to his age).

From the time he was a young man Lumus led a troubled life. This story will detail many of his transgressions including multiple occasions of abusing his wife and children. His third ex-wife and two of his older children, while emotionally distraught and fearful of reprisal, testified in court to the abuses they suffered and witnessed. Yet Lumus denied these allegations in his own testimony. Was he in denial and trying to evade responsibility, or were his ex-wife and children lying, as he testified?

Today the overarching questions are whether Lumus has overcome his admitted drug and alcohol dependency, whether he is faithfully taking the medication prescribed for his bipolar disorder (also known as manic-depressive disorder), and whether he is equipped to provide love and guidance in the upbringing of the one child he has not alienated.

This story cannot provide a definitive answer as to whether Lumus is today a suitable parent. The effort is hobbled by the fact that, through his lawyer, Lumus declined to be interviewed. The many questions prepared for him will go unanswered.

“My client is not going to call you back. We will do what we did in the courtroom, which is where it should be handled,” said attorney Charles Sullivan of Jones Sullivan PLLC, based in Canyon Lake.

“Get your facts straight,” Sullivan warned. “I have sued the Austin American-Statesman and New Braunfels Herald-Zeitung. (Neither newspaper could recall having been sued by Sullivan, who was licensed to practice law in May 2007.)

This story is based on police reports, criminal history files, more than 70 court records including transcripts and affidavits, and interviews with an ex-wife who says she has done what’s needed to protect her son. Given the boy’s age and that Lumus is allowed unsupervised visitations, this will remain her chief concern.

There are red flags. But only Jack Lumus knows if he is playing by the rules or he is deceiving others to get what he wants and not what’s best for the boy.

Broken relationships, bad conduct

In September 1990 at age 17 Jack Lumus enlisted in the U.S. Marine Corps Reserve, according to public records obtained from the National Personnel Records Center. A year later he went on active duty in Houston, went through boot camp in San Diego and was then transferred to Camp Pendleton, California.

Fewer than eight months into his active duty service, in April 1992, Lumus married Kimberly A. Cooley in Harris County when they were both 18, according to records maintained by the Harris County Clerk and the Texas Department of State Health Services (DSHS). (No record of their divorce was found.)

 Custody Dispute Ends in Mistrial

Care of twin boys unchanged after
week-long trial in Travis County case

by Ken Martin
© The Austin Bulldog
Part 4 in a Series
Posted Tuesday May 24, 2016 2:14pm

Which parent should have the exclusive right to determine the primary residence of twin boys born to a never-married couple?

That was the only question for a Travis County jury of seven men and five women. The decision was to be based solely upon what the evidence indicated would be in the best interests of the children. The boys, who were a year old when the couple separated, recently turned seven. One of them is autistic.

In this case, the jury was asked to determine whether the circumstances had materially changed since the court order of November 12, 2010, which gave the mother primary custody. The trial was initiated by the boys’ father, who pushed this case back into court in an effort to win that right.

If the jury favored the father’s request, it would then be up to the judge to decide all related matters, such as how the children’s school and medical care should be decided, how visitation rights for the non-primary parent would be handled, and how and when the children will be exchanged.

The proceedings ended in a mistrial because a sufficient number of jurors were unable to agree on a verdict. Thus, the status quo was preserved. The mother, who has been the primary custodian of the boys care for more than five years, will continue.

In this type of civil case, at least 10 of the 12 jurors must agree on a verdict. The jury was impaneled on Monday May 2, then sat through more than three days of testimony, and deliberated for a total of about eight hours, starting the morning of Friday May 6 and resumed Monday May 9. Ultimately they informed the judge that they were hopelessly deadlocked.

Judge Stephen Yelenosky of the 425th District Court declared a mistrial late Monday morning.

While this particular case involved only one set of parents and children, the themes played out in the trial—the allegations of each other’s wrongdoing—are nearly universal given the highly emotional custody battles that are fought daily in the courts of not only Travis County but also the state and nation.

In 2013, the latest year for which statewide statistics were available, there were 76,423 divorces in Texas involving 59,135 children under the age of 18. Many of these children will be pawns in litigation that plays out over many years and leaves it to the family courts to determine what is in their best interests.

Opening statements

 Commissioners Respond to ‘Extortion’ Complaints

But discuss only cost of Williamson County Domestic
Relations Office, and claim need for judges to buy in

by Ken Martin
© The Austin Bulldog 2016
Part 3 in a Series
Posted Tuesday April 26, 2016 4:03pm

After months of hearing from parents who claim they are being ripped off by racketeering in the family courts of Williamson County, Precinct 1 Commissioner Lisa Birkman briefed the Commissioners Court about research she had done to explore the possibility of establishing a Domestic Relations Office (DRO). That is a goal advocated by the Texas Association for Children and Families (TACF).

Birkman described the duties of the professionals who are appointed by courts to assist in making decisions about child custody. The person appointed will interview the children, parents, and others and report to the judge, she said. In Williamson and most other Texas counties the person appointed would be an attorney or other licensed professional in private practice.

She noted that the Family Code allows the Commissioners Court to establish a DRO, such as the one operated by Travis County. Among other services provided by the Travis County DRO, it has employees qualified to be appointed as guardian ad litem to advise the court on the best interests of children.

“There's only a few counties that do it that way and it's expensive,” Birkman said. (Actually there are eight such counties in Texas, per the Texas Association of Domestic Relations Offices.)

Birkman cited cost figures for three DROs:

• Harris County (Houston) has 42 employees and a $3.3 million annual budget.

• Tarrant County (Fort Worth) has 83 employees and a $7.2 million budget.

• Travis County (Austin) has 51 employees and a $3.6 million budget.

“The way we do it in Williamson County, and most counties in Texas, is the parents bear the cost,” Birkman said.

Judges not yet responsive