Tribute to Judge James Martin, presiding Dallas family court judge

Judge James Martin, 254th District Court and Presiding Judge of Dallas County Family Courts

Judge James Martin, 254th District Court and Presiding Judge of Dallas County Family Courts

On Sunday, April 19, 2015, the Dallas Family Courts lost one of their own. Presiding Judge James Martin lost his battle with lymphoma, leaving behind a legacy of advocacy for children. Judge Martin was elected to the Dallas Family Court bench in 2010, almost immediately garnering the respect and admiration of attorneys and litigants alike. He was reelected in 2014. Despite his illness, Judge Martin remained active on the bench until about a month ago, when he took a turn for the worse.

You can read the Dallas Morning News’ article about Judge Martin here:

Judge Martin’s passing leaves the 254th bench open at this time. Former Judge Carmen Rivera-Worley is sitting as a visiting judge until the seat is filled.  The seat will be most likely filled by Governor Greg Abbott by appointment, which is expected during the summer. Then, a special election will be held in the next cycle (2016) to fill the unexpired term. The winner of that election will sit for reelection in 2018 as well.


Historic day for marriage equality

Justices_smI believe that we will look back on today’s arguments before the US Supreme Court as one of the landmark historic days for civil rights in of our time. Today, the Court will hear arguments in the case named Obergefell v. Hodges — the combined six cases pending on various aspects of the marriage equality questions. Arguments will center around two primary questions.  One, whether it is unconstitutional for states to ban same-sex marriage, or stated another way, whether there is a constitutional right to marry by same-sex couples that overrides the states that wish to ban such marriages. Then, if there is not a constitutional-level right to marry and states may pass laws banning such marriages if they choose, then must states recognize marriages lawfully performed in other states that do recognize same-sex marriage?

Speculation will abound today about what might happen. Lawyers and media folks will look for clues in the questions asked during the argument, the tone of voice, pregnant pauses, and even questions not asked — maybe something will signal the outcome. Of course, none of that is reliable or even predictive of the actual outcome. Yet, we almost can’t help but speculate.

Windsor case signals outcome

The Windsor case from two years ago gives some clues as to the possible outcome. In that case, the US Supreme Court held section three of the federal Defense of Marriage Act unconstitutional, thus extending federal benefits to same-sex couples. The Court extended the Constitutional Due Process of equal protection to same sex couples in handing down this ruling. That part of Windsor is what signals clues to the ruling in today’s Obergefell case. The same arguments for equal protection in Windsor should apply to Obergefell and apply to strike down the state bans on same-sex marriage.

Justices leanings signals outcome

Another signal as to the likely outcome of the Obergefell case is the split of the Justices from Windsor and the known or usual leanings of those Justices.  Typically, Justices Ginsberg, Breyer, Sotomayor, and Kagan lean to the liberal side and are expected to hold the marriage bans unconstitutional (so, yes and yes to the questions presented). On the other side, Justices Scalia, Thomas, and Alito are the conservatives and are expected to vote as they did in Windsor, upholding state’s rights to pass laws banning same-sex marriage without acknowledging the laws of states that recognize same-sex marriages (so, no and no to the questions presented).

Justices Kennedy and Roberts are the crucial swing votes in this case who will actually decide how the case comes out. Justice Kennedy, the Court’s most moderate Justice, voted with the liberal wing in Windsor and authored the majority’s opinion.  Kennedy wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Justice Kennedy’s legacy will show his favor for gay rights starting as early as 1996 when he wrote the Court’s opinion in Romer v. Evans invalidating a Colorado law against homosexual rights. He also authored the Court’s opinion in this historic Lawrence v. Texas case, which extended Due Process to homosexual people and banned laws criminalizing homosexual conduct. However, Justice Kennedy is also a state’s rights advocate. So, here, where state’s rights to pass laws is at direct odds with the Due Process rights of same-sex couples, Justice Kennedy could be conflicted. This may be the reason the questions are presented in two-parts, where an affirmative answer to the second question compromises the ability to acknowledge state’s rights but also the rights of same-sex couples.

Justice Roberts’ vote may also be on the table in Obergefell. In Windsor, Justice Roberts refused to sign off on the dissenting opinion and wrote his own dissent. He did not go so far as to agree with the conservative wing on the breadth of state’s rights, and seemed to leave a window open for the Constitution to trump state’s rights given the right set of facts before the Court. As Chief Justice, this Court will bear his name — known in history as the “Roberts Court”. So, his namesake and legacy will be known, at least in part, for this landmark decision. With the tide of public opinion so overwhelmingly changing on the issue of marriage equality, many doubt that Justice Roberts will want history to mark him as opposed to marriage equality, which may sway him to vote with the majority. On the other hand, as a state’s rights advocate, he may not go so far as to find a Constitutional deprivation of Due Process sufficient to override the state’s rights to pass laws. So, question two, requiring acknowledgement of other state’s lawful marriages — in other words, granting full faith and credit under the Constitution to lawful marriages — could be his compromise.


The ruling on Obergefell is expected in late June, but before the end of the US Supreme Court’s term.

Admission of text messages into evidence, predicate

Divorce text message

Text messages are becoming a more frequent piece of evidence in Texas divorce cases. Dallas family lawyers and those around the state must offer a predicate to authenticate a text message before it will be accepted into evidence. This means the document must be shown to be the actual (or copy) document and not be altered. It must also be shown to be an exception to the hearsay rule which prohibits out of court statements being offered in court as the truth.

The Texas Court of Criminal Appeals today announced a ruling regarding the proper predicate for admission of text messages. Butler v. State opinion is here.

In that case, certain text messages from the defendant to the victim were offered by the State to show threats of retaliation for reporting the crime. The State laid the following predicate:

Q. What is [Appellant’s] phone number?

A. 361-215-3899.

Q. Does that number appear on all the pages of the exhibit?

A. Yes.

Q. How do you know that that is [Appellant’s] telephone number?

A. Because that’s where he called me from and that’s what’s on the

same exhibit in front of me.

Q. You’ve read the text messages in the exhibit?

A. Yes.

Q. Who sen[t] you those text messages?

A. He did.

Q. How do you know that it was him?

A. Because he was the one texting me back and forth and he had

even called in between the conversations talking mess.

The Texas Court of Criminal Appeals, the highest criminal court in Texas, points to a liberal standard for showing a document is authentic. Specifically, to be authentic, the proponent must show that the document is what the proponent claims it to be. The Court says it isn’t enough to show as a predicate for admission of a text message that it is sent from the cell phone of a particular person — because “cell phones may be purloined” by another. However, the proponent of the evidence may use direct or circumstantial evidence to say that the person was the sender, even based on the content or inference of the message.

So how did the victim in Butler know the texts were from him? Because he texted her from that number, the content of the conversation inferred it was him, and he called in the middle of the texts, talking “mess”. So, the distinctive characteristics of the conversation showed it was Butler. The Court of Criminal Appeals held that the predicate laid was sufficient to allow the jury to find the document authentic, so admission of the evidence was proper.

Preserve Error and Don’t Get Sued

I was fortunate enough to be asked to give a TED-style talk at a lawyer education seminar about preservation of error.  Here’s the link to the podcast of the presentation:

I really enjoyed the TED-style talk and hope these catch on across the lawyer education forum.

Texas Divorce Statistics January 2015

This from the Office of Court Administration, divorce filings in Texas account for 89% of all cases filed in the District Courts. In the fiscal year 2014, there were 111,409 divorces filed in Texas district courts out of a total of 125,588. Overall, the divorce rate per 1,000 people was 4.7 (meaning 4 or 5 people out of 1,000 got divorced in 2014). This statistic is down 30% over 1995 statistics, which showed 6.7 out of 1,000 people got divorced.

The Office of Court Administration is doing some good work with the memes on various court-related statistics.  See more at their website.

Texas divorce statistics 2014

Same Sex Marriage in Texas… Yes, Then No

Last week was a crazy time in Texas for proponents of same sex marriage.  Here’s a timeline of the events that occurred last week:

  • On Tuesday morning, a probate judge in Travis County declared the Texas definition of marriage unconstitutional in a private probate proceeding.

probate court order

So, as of now, two ladies in a same sex got legally married in Travis County. The LGBT advocates rejoiced. AG Paxton filed to invalidate their marriage. The Texas Supreme Court pushed the pause button and said WHOA wait a minute here… let’s sort this out. And, everyone remains in limbo. STAY TUNED!

Michelle O’Neil authority on Texas’ same sex marriage rulings

I participated in several media interviews pertaining to the events between Tuesday Feburary 17 and Thursday February 19, 2015 on Texas first legal same sex marriage between a lesbian couple in Travis County, Texas. Here are the links to my interviews that aired on Tuesday, Thursday and Friday:

Channel 11 Probate Judge Rules Texas Ban On Same-Sex Marriage Unconstitutional. (Tuesday February 17, 2015)

Fox 4 News interview with Steve Eagar and Michelle O’Neil regarding Texas first same sex marriage: Attorney talks state’s first legal same-sex marriage (Thursday February 19, 2015)

Channel 8 WFAA’s Attorney speaks about first legal gay marriage in Texas. (Thursday February 19, 2015)

Channel 11 North Texans React To 1st Legal Gay Marriage In The State (Thursday February 19, 2015)

KCEN TV in Waco Texas AG Says Travis County Same-Sex Marriage Void (Thursday February 19, 2015)

KRLD Interview regard Texas Same Sex Marriage Rulings (Friday February 20, 2015)



Travis County Rules Same Sex Marriage Ban Unconsitutional, Part 2

I reported yesterday on the Travis County Probate Judge’s ruling that Texas’ ban on same sex marriage is unconstitutional.  See Travis County Probate Judge Declares Same Sex Marriage Ban Unconstitutional.  Andrea Lucia @CBS11Andrea interviewed me regarding the ruling as part of her report on KTVT CBS 11.  See the video of the report here.  Let me know what you think is the effect of the ruling? Do you have a guess as to when the 5th Circuit’s ruling may come down?



Travis County Probate Judge Declares Same Sex Marriage Ban Unconstitutional

Today Judge Guy Herman of Travis County Probate Court Number 1 ruled that Texas ban on same sex marriage is unconstitutional. See the Order here. This ruling comes from a probate matter pending after one same sex spouse, Stella Powell, passed away from colon cancer without a will.  Her spouse, Sonemaly Phrasavath, sought to have their relationship recognized as a common law or informal marriage under the laws of the State of Texas.  On the other side, Powell’s siblings sought to inherit Powell’s property because they allege that Powell and Phrasavath were not legally married in Texas.

orderTexas Family Code section 2.401 provides that an informal marriage between a man and a woman may be proven by evidence that the man and woman:

  • agreed to be married;
  • after the agreement, lived together in Texas as husband and wife; and,
  • represented to others that they were married.

The Travis County Probate Judge declared those portions regarding man and woman and husband and wife of the Texas Family Code unconstitutional.

The battle of the siblings versus the surviving spouse comes before the probate court because Powell died without leaving a will.  If she had left a will, she herself could have determined who was to inherit her property.  But, without a will, Texas Estate Code section 201.001 dictates who inherits her property. If there is a legally recognized marriage between Powell and Phrasavath, then Phrasavath as the surviving spouse, would inherit all of Powell’s belongings.  If the marriage is not recognized as legal, then the siblings would be in line to inherit.

Ultimately, the ruling is very important to the spouse fighting to keep the property of her wife.  However, it has little effect on the legality of same sex marriage statewide.  The reason for this is because the Travis County Judge’s ruling merely declared the Texas law unconstitutional.  The federal ban on same sex marriage recognition stands.  So, Texas is not in the clear yet to grant same sex marriage applications based solely on this ruling.

The federal 5th Circuit Court of Appeals, which covers the State of Texas, is expected to issue a ruling any day on the appeal out of the San Antonio federal court which declared the federal and state laws banning same sex marriage.  ARgument was heard in January on the appeals pending before the 5th Circuit from federal courts in Texas, Louisiana, and Mississippi on the constitutionality of same sex marriage.  See Gay Marriage Bans To Be Heard In Federal Court. When that ruling is handed down, Texas will have more clear definition on whether same sex marriages can begin to go forward.

Substituted Service Through Facebook

service by social media

Service by Social Media

When a new lawsuit is filed, whether it is a divorce in Dallas County, Texas or any other type of suit, the responding or defending party has a right under the Constitution to be personally service with citation. Also called “service of process”, this means that the party who filed for divorce must request the clerk of the court to issue citation upon the responding party and it must be served by an authorized neutral third party (such as a constable or process server). If a temporary hearing is scheduled, notice of hearing must also be served on the responding party.

But, what happens if the responding party dodges service or for some reason cannot be served easily? Under that scenario, the filing party must file a motion and obtain an order authorizing substituted service. This substituted service must be authorized in a manner that is likely to actually give the responding party notice of the lawsuit. Most often this involves posting the citation on the front door of his or her house. In the day and age of electronic communication, folks are starting to request service by electronic means. Maybe the responding party is travelling but always checks email. The Court might authorize service via email.

One issue that has arisen lately is whether it is permissible to serve someone through social media channels. Zachary Ludens with Carlton Fields Jorden and Burt in Miami Florida wrote a blog post called “Where is the ‘Serve’ Button?” about this topic. Ludens points to some recent federal and state court decisions that have opened the door to service of process via Facebook and LinkedIn messaging. This began as a method of serving foreign individuals under the federal rules of civil procedure, Ludens expects it could expand to cover folks living in the United States.

“Between March 2013 and February 2014, two federal courts allowed foreign defendants to be served via social media. In both cases, the courts initially determined whether the defendant’s resident nation had affirmatively disallowed service via social media in an agreement with the United States. When that question was answered negatively, the courts—the Southern District of New York in FTC v. PCCare247 Inc. and the Eastern District of Virginia in Whoshere, Inc. v. Orun—examined whether service via social media was “reasonably calculated under the circumstances” to provide notice, in accordance with due process standards. In both cases, the courts allowed service via social media—but required that it be supplemented with service via email.

“Then, in September 2014, a family court in Staten Island, New York, allowed a defendant to be served via Facebook when the traditional methods of service proved inadequate. Determining that the defendant had been actively using her Facebook account, the court concluded that Facebook provided “the best chance of the [defendant] getting actual notice of these proceedings.” Nevertheless, the court also required mailing of service to the defendant’s last known address.”

These cases indicate a willingness among some judges to permit social media service, when coupled with other means of notifying the responding party. This means we are one step away from social media service being the only method of substituted service when personal service isn’t available.

But, what happens if the message via Facebook goes to the person’s “other” inbox. Some don’t know that the “other” inbox exists much less how to access it. What if the person gets a notification from LinkedIn that he or she has a message but doesn’t check it? (I know I don’t check my LinkedIn messages all that often.) Or, what if the person thinks the Twitter pm was a scam or junk and ignores it? This is likely the reason for the secondary method of coupling the social media notice with email. When personal service is not available, other methods of service are imperfect, but should be designed to reasonable give the responding party actual notice of the suit.

And, who does the service via social media come from? A process server unknown to the party but still a “neutral”? Or someone known to the party?

How do you know that you served the right person when there are multiple parties registered to the same name and maybe even in the same location when the name is common?

Process servers use all sorts of means to locate a party, including social media resources. But, even process servers are injecting discontent with the idea of service by social media. See “Getting Serious About Service of Process by Social Media” by Stephanie Irvine. That article points to a survey of over 300 process servers that says less than 2% have served documents through social media. One of the main problems as reported by the process servers seems to be getting a verification of receipt.

What do you think about social media service? Is it a good idea? Have you had experience with using it? Let us know!