Hon. Ronald R. Pope and Hon. James H. Shoemake
- 328th Judicial
District Court
An Outline for Practicing in the
328th District Court and Representing Children
I.
Practice in the 328th
A.
Timeliness - Our docket is called
at 8:30 a.m.
1.
Call by 8:15 a.m. if you are going
to be late (281-341-4406)
2.
Have your client advise us if
you are going to be late or the lawyer on the other side or another lawyer who is there.
3.
At 9:00 a.m., your case is subject
to default or being passed or dismissed if you have not contacted us.
B.
If custody of children is in issue,
you must mediate first on both temporary and final hearings; seldom, if ever, do we waive mediation.
C.
Read our Local Rules.
1.
Read ARE YOU READY FOR FINAL
TRIAL?
2.
On the Fort
Bend County web site under the
328th District Court, we have some of our rules posted.
3.
Under District Courts on the web
site, we also have additional rules which are more detailed and involve a variety of procedural matters.
a.
READ Rule 4 under the Local Rules for all of the District Courts.
b.
A set of Rules for both Family
Courts are also included at that site.
4.
Everyone is charged with knowledge
of the Local Rules.
a.
Examples:
(1)
How many of you know there are
specific rules on bringing children to the courthouse?
(2)
How many of you know that F.I.S.
and Inventories are required to be filed and exchanged at least 10 days prior to final trial?
(3)
How many of you know that you
are required to exchange proposed child support findings and proposed property divisions 10 days prior to trial and file same
with the Court, including working copies, on the commencement of the trial?
(4)
How many of you are aware that
if children are involved, the parties must attend a parent education course prior to final trial even if there is an
agreement on all issues?
5.
There are numerous lawyers that
have become familiar with the Local Rules and are using them to their clients’ advantage, such as moving to exclude
the other sides property values, extraordinary child expenses, etc. because the inventory was not timely filed or updated
and filed or the Financial Information Statement was not timely filed.
a.
Embarrassing and possibly costly
to have to tell your client that you failed to follow the local rules and all of the work you and your client did on the Saturday
and/or Sunday before the Monday trial could not be used.
6.
Make sure your staff is also familiar
with the Local Rules.
D.
Trial Setting Request
1.
Fill out our “new”
Trial Setting Request form you can get from our office.
a.
Will be on the county web site soon.
2.
Note: You must (1) get a date from Sue Anne, (2) notify the other attorneys, pro
se’s, etc. of the trial date and (3) be able to prove notice to the other side more than 45 days prior to the
trial date, if it is the first setting.
E.
Motions to Substitute; Motions
to Withdraw; Motions to Transfer; etc.
1.
We have more problems and wasted
time dealing with these matters.
2.
Motions to Substitute and Motions
to Withdraw need to have the client, the new lawyer and the other side’s lawyer, or pro se, sign the Order or
set it for a hearing and give everyone notice.
3.
Motions to Transfer
a.
Read §155.204 Family Code.
(1)
You must have filed an initial
pleading or are responding to a citation.
(2)
Service of both the lawsuit and
the Motion to Transfer is necessary.
(3)
If no timely controverting affidavit
or if a waiver of the Motion to Transfer is filed, then I will sign the Order of Transfer assuming you had grounds to begin
with.
b.
San Antonio example: both parties
in San Antonio; both have lawyers; took about 8 months or so to get transferred; no lawsuit other than Motion to Transfer;
no service; no answer; no waiver; no waiver of transfer; the 2 lawyers signed an Order without a pending case, then without
an answer/appearance by Respondent represented by this lawyer, etc. READ
AND UNDERSTAND requirements of §155.204.
F.
Uncontested Cases
1.
Parenting classes
2.
You, client, other atty, and/or
pro se sign all documents, i.e. Decree, WHO, QDRO, and Medical WHO.
3.
Have parties sign: “Approved
and Consented to as to both Form and Substance”
4.
Name changes outside the divorce
- READ Chapter 45 of the Family Code - you do not want to lose a name change because the pleadings are wrong; no fingerprint
card; order is wrong; etc.
a.
If a child’s name is being
changed (1) both parents must be present; or a waiver by one not there; and (2) if the child is ten (10) or older,
a consent by the child must be signed or given in open Court. READ Family Code § 45.002 and 45.004.
b.
For adults, READ Family
Code § 45.102 and include all elements. Remember, you must state in the pleadings
(1) if registration under Chapter 62 Code of Criminal Procedure is required, (2) if they have an FBI number, state identification
number, or any other reference number in a criminal record system.
5.
Adoptions
a.
Check file before you bring your
client to Court - social study? Fingerprint cards/criminal record? (Cards are often returned because fingerprints cannot be checked due to smudging, etc.)
b.
Determine if it is a step-parent
adoption and if an ad litem is required, and, if so, has been appointed and knows to be present.
II Representing Children
A.
In the 328th, we have a “new” application for being appointed to represent children as well
as indigent parents in termination and enforcement cases - the Application is in our office.
A.
READ Chapter 107, Sub-chapters A and B of the Family Code.
A.
READ the A.B.A. Standards of Practice for lawyers who represent children in abuse and neglect cases.
1.
Go on the web to www.abanet.org/child for a lot of information.
2.
Specifically, go to www.abanet.org/child/childrep.html and you can download the Standards of practice
mentioned above (it is a 24 page document)
A.
The duties of the amicus attorney and attorney ad litem for children are found in §§107.003, 107.004 and 107.005.
1.
Know these duties and follow them.
2.
§107.009 is the immunity section.
a.
You are not immune from civil
liability if your actions, recommendations or opinions are “grossly negligent or willfully wrong”
(1)
Read a recent case where the Court
of Appeals in Fort Worth states, “we are appalled that any attorney, much less one appointed to represent the interest
of vulnerable children, could fail to meet with his clients, not to mention fail to ascertain his clients’ trial objectives,
until such trial was well underway.” In the Interest of T.N. and M.N.,
Children, 142 S.W. 3d 522 (Ct. App.-Fort Worth), 2004.
(a)
Do you think this A.A.L. in a
C.P.S. case may be “grossly negligent”? Certainly a question I would
not want to be the A.A.L. who is being asked.
(b)
Could this be the basis for a
grievance?
(2)
Know the duties you are charged
with!
III
Fundamentals of Evidence Introduction
A.
Pre-mark your exhibits.
B.
Hand to witness for identification
only, not testimony, i.e.
1.
I’m handing you what has
been marked P-1. Without telling me its contents, can you identify it?
2.
Again, without telling me what
it says, what is it?
C.
Ask any prove-up questions.
1.
Pictures, does this/these picture(s)
accurately depict and graphically portray the subject matter now (or on such and such date); or
2.
Financial Information Statement
- are the categories and dollar amounts a true and accurate summary of your expenses after you have looked at your checkbook,
bank records, credit card accounts, budget, etc?
D.
Hand the exhibit to opposing counsel
and wait for reply regarding objection or lack there.
E.
Be prepared to give your reason
why the exhibit is admissible.
F.
Hand a copy of the admitted exhibit
to the Judge and the original to your client.
G.
Highlight the important entries
with your client by asking how the information was gleaned or why the subject matter is important.
Please!! Go over the exhibits and the process with your client in advance
of the hearing so they will be familiar with how it is done, know how to identify it (the more they stumble, the more likely
your opponent will work to keep it out), not start testifying from it until it is admitted, and know why the figures or pictures
are there.
IV
Civility Between Counsel/Opposing Client
A.
Observe common courtesy toward opposing counsel.
1.
Do not over-talk. A courtroom is not a sports talk show where speaking in louder tones or longer syllables pronunciation
in louder decibels.
2.
Do not interrupt court, counsel,
client or witness, except to object.
3.
Do not object to counsel’s
statements - wait your turn and remind the Court they are not testimony but merely conjecture or posturing.
4.
Do not accuse counsel of fraud,
theft, lying, or deceit, unless you have brought your checkbook with you or you are packing plenty of cash.
5.
Do not infringe on the Court’s,
counsel’s or opposing client’s personal space.
6.
Do not use sidebar comments to
infuriate counsel, opposing party or, particularly, the Court.
7.
Do not apologize or beg excuse
for being too friendly with counsel.
8.
Do not curse out counsel, opposing
client or other folks (i.e. f-bombs or other smaller ammunition) unless you are ready to be fined.
9.
Tell your client that (8) above
applies to him or her too (only no checks).
V
Contacting the Court
H.
You may contact the Court via
whatever method is easiest for you and your staff. Sue Anne has no preference. If you get her voice mail, rest assured that she will return your call as soon as
possible. Be patient.
3.
Phone is (281) 341-4406;
4.
E-mail at pitcosue@co.fort-bend.tx.us
ARE YOU READY FOR FINAL TRIAL?
(BETTER CHECK THE RULES TO MAKE SURE)
If you are set for final trial, please refer to (1) Rules of Practice in the 328th
District Court, (2) the Local Rules of District Courts of Fort Bend County, and (3) Rules of the 328th
and 387th District Courts of Fort Bend County, Texas, to make sure that you have complied.
Checklist:
9
Have you mediated? Having mediated for temporary orders is not sufficient.
9 Have Financial Information Statements,
tax returns for two (2) years and the last three (3) pay stubs been filed and exchanged in all matters involving support?
This should be done at least ten (10) days prior to trial.
9
Have inventories and proposed property divisions been filed and exchanged? This should
be done at least ten (10) days prior to trial. The inventory should be in proper form, including property with current
value; debts; characterization of property and debts. Please refer to Rule 4.3, Inventory, of the Rules of the 328th
and 387th District Courts of Fort Bend County. The Inventory and Appraisement form in the Texas Family Law Practice
Manual will provide most, if not all, of the information required under Rule 4.3.
9
Have you filed and exchanged suggested findings regarding child support and a proposed
division of the property? This should be done at least ten (10) days prior to trial.
9
If children are involved in the proceeding, does the inventory contain sufficient information
so the Court may render a medical child support order for health insurance for the children?
9
On the day of trial, make sure the Court has copies of your most recent pleadings, Financial
Information Statements, Inventories, suggested findings regarding child support, and proposed property division.
9
Has your client taken the Parent Education course? Has the Certificate been filed?
9
Have you complied with all the rules? Please review them to make sure.
If you can’t check off each of these items, then you are not ready for trial and your case will
be reset. However, if the other party has substantially complied and you have not, the Court may go forward with the
trial and use the values, etc. of the party who is in substantial compliance.
To get copies of the Rules, go to www.co.fort-bend.tx.us to download them; or, you can obtain copies from the Court
and the District Clerk. Note: These rules also apply to pro se litigants.
