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The Dallas Court of Appeals yesterday GRANTED two writs of habeas corpus that I filed on behalf of a Dallas family law client in a contempt/enforcement case on temporary orders.  The Dallas Family Court judge confined the client for alleged violations of several court orders to pay various amounts of money, even after payment was made.  The contempt orders failed to run the punishment on each separate count concurrently to all of the other counts, which violated the sacred right to a jury trial.  The client's trial lawyer demanded a jury trial and paid the required fee, but the Judge denied him that right.

The right to a jury trial in the United States remains inviolate.  A party is entitled to a jury trial in a criminal or quasi-criminal case (such as a contempt proceeding, even in a civil court) when the possible punishment could exceed a total for all counts of 6 months in jail and a total of $500 fine on all counts.  When a case will have a period of confinement of less than 6 months and fine of less than $500 it is considered a "petty" offense, for which a jury trial is not an option.  However, when the punishment exceeds that limited amount, the allegations are considered "serious" and invokes the right to jury trial.

The Dallas Court of Appeals stated, "The orders signed by the trial court did not clearly state that the jail terms imposed by the court were to be served concurrently.  Accordingly, relator was sentenced to more than 6 months in jail and was entitled to a trial by jury".  As a result the Dallas Court of Appeals granted the writs of habeas corpus in favor of relator, released him from confinement (he has been out on bond), and vacated the orders made the basis of the commitment.  This decision by the Court of Appeals attaches jeopardy, which is a legal concept that prohibits retrying a person for alleged violations where the court of appeals finds the law was violated in the first trial.

Read the full opinion at Legale.

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Kendall Gray wrong in his blog The Appellate Record that "appellate lawyers are the chess club of the law world."  The most common function of an appellate lawyer is to bring issues of legal error to an appellate court after a trial.  An appellate lawyer keeps his "law focus" to every issue of a trial.  It is never too soon, says Gray, to consult an appellate lawyer.

A great trial lawyer once said, if you can't tell your story in one Big Red Indian Chief Tablet with a number two pencil, then you're sunk.  The appellate lawyer can help with the filter that reduces the room full of documents to the Big Red Indian Chief Tablet -- based on the law in the law library.

As with other areas of law, the family law appellate lawyer can help get a case ready for trial.  The family law appellate lawyer can handle disputes over legal issues so the trial lawyer can focus on the fact issues.  The family law appellate lawyer can draft motions, briefs, or even the jury charge to fine-tune the really important legal issues.  The family law appellate lawyer can advise the trial lawyer as to what parts of the case really matter, and what can be left on the editing room floor.

Not all cases can justify the expense of a family law appellate lawyer, but in the right case, she can be an invaluable part of the team.

Hat Tip to Kendall Gray for his post Appellate Lawyers:  Why We're in the Library.

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Lawyer Fined $100 for Getting a Case Citation Wrong
From the ABA Law Journal
By Debra Cassens Weiss

A Wisconsin lawyer has been fined $100 for getting a citation wrong in a brief submitted to the Wisconsin Court of Appeals.

The appeals court expressed its frustration in a footnote to an unpublished opinion, Espitia v. Fouche, Legal Blog Watch reports. The court imposed the penalty and explained the reason for it in a footnote to a 2008 unpublished opinion, Espitia v. Fouche. Here is the entire footnote:

Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce." The cite provided is "Buellesbach v. Roob, 2005 AP 160 (Ct.App.Dist.I)." Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding photographer. Also, "2005 AP 160" is the docket number, which we discovered only after reaching a dead end at 2005 WI App 160, 285 Wis.2d 472, 702 N.W.2d 433. At last we located the unpublished case that addresses the subject matter for which counsel cited Buellesbach: Stansfield Vending, Inc. v. Osseo Truck Travel Plaza, LLC, 2003 WI App 201, 267 Wis.2d 280, 670 N.W.2d 558. Different name, different citation, different district (District IV) but, as promised, unpublished. It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate. A $100 penalty is imposed against Espitia's counsel. See Hagen v. Gulrud, 151 Wis.2d 1, 8, 442 N.W.2d 570 (Ct.App.1989).
The lawyer cited an unpublished case that supposedly upheld a stipulated damages clause in a vending machines contract. But a search for the case based on the name provided by the lawyer turned up a misrepresentation case brought by newlyweds against a wedding photographer.

The cite wasn’t helpful, either. It was listed as “2005 AP 160,” which sent the appeals court to 2005 WI App 160 and another “dead end,” the footnote said. When the court finally found the real case—which had an entirely different name—it learned “2005 AP 160” was the docket number.

“Different name, different citation, different district (District IV) but, as promised, unpublished,” the court said in the footnote.

The lawyer who will have to pay the fine wasn’t identified.

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Texas Family Code requirement of filing a Statement of Points in a government termination case within 15-days of the signing of the final order is unconstitutional as applied when it bars parents from raising an ineffective assistance of counsel claim. In Re J.O.A., ___ S.W.3d ___, 2009 WL 1165303, 52 Tex. Sup. Ct. J. 714 (Tex. 2009) (5/1/09)

Facts: Mother, with one child already, gave birth to twins in 2005. At that time, mother and children tested positive for cocaine. Court appointed TDFPS as SMC of all three children. TDFPS created a service plan that parents did not adequately follow. In 2/07, case proceeded to bench trial. Trial court terminated both parents’ rights to the twins and appointed mother’s mother as SMC of older child. On 2/21/27, mother’s counsel filed notice of appeal and motion to withdraw. On 2/22/07 father’s counsel did same. Neither filed a statement of points as required by TFC § 263.405. Trial court appointed replacement counsel after the fifteen day deadline set out in TFC § 263.405(b). Parents appealed, claiming ineffective assistance of counsel and insufficiency of the evidence. Appellate court reversed and remanded on the termination of father’s parental rights, declaring TFC § 263.405 unconstitutional for blocking consideration of parent’s ineffective assistance claims. TDFPS appealed appellate court’s ruling.

Held: Modified and remanded to trial court.

Texas Supreme Court Opinion: TEXAS FAMILY CODE § 107.013(a)(1) grants a right to counsel in parental termination cases. The right to counsel is the right to effective counsel. Trial counsel’s failure to preserve error is examined under the procedural due process standard. Matthews v. Eldridge, 424 US 319, 335 (1976). The court weighs 1) private interests; 2) governmental interests and; 3) the risk of erroneous deprivation of parental rights. The court then balances the result against a presumption of constitutionality. Pursuant to In re M.S., 115 S.W.3d 534, this analysis heavily favors allowing review in parental termination cases. Due process consideration prohibit waiver of a complaint due to error by counsel. Since father’s counsel’s failure to file a statement of points fell below an objective standard of reasonableness, and since TEXAS FAMILY CODE § 263.405(i) requires waiver as a result of counsel’s error, TEXAS FAMILY CODE § 263.405(i) is unconstitutional.

Concurrence (Willett, J.): Trial courts should take steps to prevent intentional ineffective assistance of counsel. Possible steps include 1) issuing unambiguous instructions after trial setting out steps to preserve appeal; 2) reminding trial counsel that they still have duties after trial and; 3) punishing attorneys who commit ineffective assistance of counsel.

Dallas family lawyer are aware that the constitutionality of the statement of points requirement in government termination cases has been questioned thoroughly over the past couple of years. The courts of appeals have conflicting determinations on the issue. The Texas Supreme Court has multiple cases pending on the issue as well. JOA does nothing to resolve the issue with any permanency. JOA declares the statement of points statute unconstitutional as applied in this case. Here father’s trial attorney failed to timely file the statement of points and since father actually had a meritorious appellate issue on insufficiency of the evidence to support termination of his rights, the trial attorney was found to be ineffective for the failure, thus causing reversal of the termination. An ineffective assistance of counsel claim has two prongs, not only that the attorney failed in some duty owed, but also that the underlying claim would have been meritorious but for the attorney’s failure.

Texas Lawyer reporter John Council interviews Michelle May O’Neil regarding the Texas Supreme Court’s recent opinion in J.O.A. case.
 

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Today I was interviewed by Katie Award winning reporter John Council with Texas Lawyer Magazine about the In re JOA opinion issued recently by the Texas Supreme Court for the Video Blog Reversed and Remanded.  Seriously, you should go look at the video -- CLICK HERE.  (I wish I had worn a different shirt!)

The Texas Supreme Court declared Texas Family Code section 263.405(b) unconstitutional as applied in this case. 

263.405 requires a parent appealing the termination of his parental rights by the government (Family Protective Services) to file within 15 days of the signing of the termination order a Statement of Points detailing exactly the issues to be addressed in an appeal. What happens when the lawyer for the parent fails to timely do so?  The law says the parent cannot appeal.

In re JOA holds that, where the trial court lawyer fails to file the statement of points, the appellate court is not precluded by the statute from considering whether the trial court lawyer's failure rises to the level of ineffective assistance of counsel requiring reversal of the termination. To prove a claim for ineffective assistance of counsel, the party must show, not only that the lawyer's actions were deficient (example, failing to file the Statement of Points) but also that the failure was somehow harmful (example, if the lawyer had filed the SOP, the appeal would have been meritorious).  Where, as in JOA, the claim for ineffective assistance of counsel was well-founded, 263.405's prohibition against the trial court from hearing the appeal violates the terminated parent's constitutional right of due process.

This has been a controversial issue in family law appeals since the law was passed.  The various courts of appeals in the state have disagreed over the intersection of the Statement of Points requirement with the United States Constitution.  Now, we have a decision, at least as to these facts.

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