Harris County Criminal Lawyers Association

HCCLA 12th Annual Reading: Declaration of Independence

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Houston, Texas – July 1, 2021 – In celebration of Independence Day, the Harris County Criminal Lawyers Association (HCCLA) is holding its 12th Annual Reading of the Declaration of Independence on Friday, July 2 at 12:00 pm outside the courthouse in person at 1115 Congress Street, Houston, Texas.

Members of the Texas Criminal Defense Lawyers Association (TCDLA) will also be holding readings in front of courtrooms across the state. “We are proud to emphasize the patriotism associated with Independence Day,” said TCDLA President Grant Scheiner of Houston. “TCDLA recognizes the Declaration of Independence as a bedrock document that not only liberated the colonies but eventually led to the United States Constitution, the Bill of Rights and the American rule of law—concepts criminal defense lawyers use every day to protect individual liberties in courthouses across the land.”

HCCLA President Joe Vinas said, “HCCLA is honored to continue, for the 12th consecutive year, its annual reading of the Declaration of Independence at the Harris County courthouse. It serves as a reminder to all about the sacred rights our founders fought and died for when establishing this great nation. Because of HCCLA leaders like Robb Fickman, this honored tradition has spread to all 254 counties in Texas, across the nation, and in some foreign countries around the world.”

The Reading of the Declaration of Independence by criminal defense lawyers is an annual tradition started by past president Robert Fickman. “We read the Declaration annually as a reminder that the fight against tyranny is a never-ending battle. We must always fight those who would rob us of our liberty,” said Fickman.

The Declaration of Independence is the founding document of the United States, and contains within its text the fundamental truths and unalienable rights that typify and embody the American way of life: …that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Please join us in honoring our nation’s most sacred document in the spirit of independence:

When:     Friday, July 2, 2021
Where:    Harris County Family Law Center
1115 Congress Street, Houston, Texas 77002
(southwest lawn of the courthouse)
Time:      12:00 PM

 

The Harris County Criminal Lawyers Association is the largest local criminal defense bar in the United States with more than 700 active members.

Click here for more information about the history of the Readings and photos 

 

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Memorial Day Tribute

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Memorial Day 2021

This article is dedicated to the families and friends of all soldiers, sailors and Marines who did not survive war and those who did survive but suffered with battle fatigue Shell Shock, or Post Traumatic Stress Disorder (PTSD). 

By Robert Pelton
Past President, HCCLA
Ethics Chairman, HCCLA/TCDLA
Lawyer, Pelton Law Offices
and Sharon Bass
Paralegal, Pelton Law Offices

Virgil Poe and RC Pelton

As a teenager, Virgil Poe, a 95 year old WWII veteran served in 3rd Army and 4th Army in Field Artillery Units in Europe (France, Belgium Luxemburg, and Germany). He recently was awarded the French Legion of Honor for his WWII service. Authorized by the President of France, it is the highest Military Medal in France. After the war in Germany concluded, he was sent to Fort Hood Texas to be reequipped for the invasion of Japan. But Japan surrendered before he was shipped to the Pacific. He still calls Houston home.

 

Ernest Lowell Pelton

My Uncle Ernest Lowell Pelton was there with Virgil during the battle serving as a Medic in Tank Battalion led by General Gorge Patton. During the battle he was wounded while tending to 2 fellow soldiers. When found they were both dead and Lowell was thought dead but still barely alive. He ended up in a hospital in France where he recovered over an 8-month period. He then asked to go back to war which he did. Lowell was offered a battlefield commission, but declined saying, I do not want to lead men into death. In Anson Texas he was called Major since all the small-town residents had heard of his heroism. He suffered greatly after the war mentally and physically and ended dying in Anson Texas at age 52, living with my Grand Mother Pelton. She received a letter from President Lyndon Johnson in recognition of Lowell’s service to our country.

Robert Paul Robbins and Frank Dunlevy were 2 friends of mine who were both in 101st Airborne during Viet Nam. They both served in Tiger Force which was an elite group of soldiers. Robbie received 2 bronze stars and several purple hearts and was greatly affected by what he had seen and done Robbie recently died partly as a result of the
war. Frank is still going strong and a Vice President at Cowen and Co. The war affected them differently.

When my family members joined the army in WWII, they signed up for the duration of the war, not for two years or three years. They went over the pond as my uncle used to say and did not come back for over four years. When Lawyer Richard “Racehorse” Haynes was dodging bullets on Iwo Jima he was just trying to stay alive. My Abilene
friend William Ervin Sims, who recently died at age 92, carried a BAR, a browning automatic rifle, weighing 16 pounds up the hills of Iwo Jima. Those two men and many others fought 35 days without rest and managed to survive.

Memorial Day has traditionally been a day of observance for the men and women who died in the sacrifice of the cause they were fighting for. This day is different from Veterans Day in that Veteran’s Day is set aside to honor all Veterans. Since many in the WWII and Korean War generation are growing older, I felt it incumbent on me to honor
all Veterans by putting forth a short statement honoring those both living and dead who have served this great country. The soldiers mentioned here had war time wounds that indirectly led to their deaths.

John Saur is another Houston lawyer who froze for months when in Korea serving his country. John Saur was in the middle of the fighting and came back, finished college and law school and was a lawyer over 50 years. John recently passed away holding his 1st Cavalry hat in his lap.

Memorial Day is a federal holiday originally enacted to honor fallen Union soldiers after the Civil War. It was originally known as Decoration Day. Decorating the graves of their fallen soldiers was commonplace by Confederates even before the Civil War had ended, by southern ladies of Richmond and southern schoolchildren. The catastrophic
number of dead soldiers from North and South alike meant that burial and memorialization was very important after the war. Townspeople, mostly the women, buried the dead and decorated graves during the war. The oldest national cemetery was created in 1862. After Abraham Lincoln’s death, many events to commemorate the war began. The first such event was in Charleston, South Carolina on May 1, 1865. Union soldiers who died there were buried in unmarked graves. Freed slaves knew of this and decided to honor these soldiers. They cleaned up and landscaped the burial ground. On that day, nearly 10,000 people gathered to honor the dead and 3,000 school children and others brought flowers to lie on the burial field. Historians said this was the first Memorial Day. African Americans invented Memorial Day in Charleston. Black Americans, freed from slavery brought flowers and sang songs about the war.

Speeches on Memorial Day were a time for veterans, politicians, and ministers to commemorate the war. People of all religious beliefs joined together, and the point was made that immigrant soldiers had become true Americans because they had shed so much blood in battle. By 1870, much of the anger was gone and speeches praised the
brave soldiers of blue and gray. By 1950, the theme of Memorial Day was to uphold freedom in the world. Today, Memorial Day extends to honor all Americans who have died in all wars.

Tennessee was a divided state during the Civil War. Some of the families that served in the Union Army had family members joining the Confederates. My maternal great-grandfather Abraham George Washington Cox and great-great-grandfather Abraham Cox enlisted with the Confederate Army on the same day. Abraham George
Washington Cox was 15 and his father Abraham was 51. They served in the Tennessee Calvary. After the war, Abraham George Washington Cox rode a mule from Tennessee to Cooke County, Texas, got married, and had 12 children and named them after Confederate heroes. My grandfather was named Robert E. Lee Cox. Abraham George
Washington established the Mt. Zion School, Church, and Cemetery. Each year in May, our family meets there to attend “Graveyard Working” like the old customs that started Memorial Day. My paternal great-great-grandfather Joseph Washington Mathis fought with the 1st Alabama Infantry. He was captured at Island Tennessee on 4/8/1862,
escaped capture at Port Hudson, Louisiana on 7/9/1863 and was captured again in Nashville, Tennessee on 12/16/1864. He was held prisoner until the end of war. His children came to Jones County, Texas in 1899.

My son, who coincidentally was born on July 4, called me from the recruiting station when he turned 17. He said the recruiter would not let him join without my permission and would not let him be a military police officer. I got the recruiter on the phone and he laughed and said you will have to get permission from the Pentagon. I was in Ted Poe’s
court that morning and told him. He, himself a Veteran, made some phone calls and at 4pm that day a major at the recruiting station said, “Please don’t make any more phone calls, meet me here at 5pm and your son will be sworn in.” My son went to the US Army and was trained at Fort Anniston, Alabama as a military police officer. He served there and got out but was recalled after 9/11. He served again and left the Army as an E-5 with an Honorable Discharge.

My Brother Joe Pelton was a graduate of U S ARMY officer candidate school and was commissioned a second Lieutenant at age 20..My grandson Sam Pelton turned 18 in April and joined Army in June. He is now in training at Ft. Huachuca, Arizona and has been selected to go to Air Assault school and train and be a member of the 160th
Infantry NIGHT STALKERS. Ron McCoy’s grandson, Blue McCoy just finished jump school and now serving with 101st Airborne unit.

Remembering, Robbie Robbins and Frank Dunlevy and their service during the Viet Nam War 1966-68. Both Volunteered for Military Service and the Airborne, both served in the 1st Brigade , 1st/327th Battalion ,101st Airborne, made Famous as “The Band Of Brothers” and Commanded by Col David Hackworth (America’s most decorated Soldier of the Viet Nam War).

Robert Robbins

Robbie was awarded 2 Purple Hearts, and the Bronze Star and Frank was also wounded 3 times. Robby served in the Battalion Recon Platoon (The Tiger Force) this single Platoon had two members awarded the Congressional Medal of Honor, an Army Unit record that stands to this day. Frank served in C Company, and the Cobra Recon Team, first as the RTO and then as the Team Leader. Their two units worked in close proximity to each other on multiple operations and were both involved in the Raid on the “Tuy Hoa Prison Compound” in late 1966, that freed 15 South Vietnamese Government and Military Officials from an NVA Prison Camp, with both Units being Awarded the Vietnamese Cross of Gallantry for this action. Frank later served with the 82nd Airborne.

Frank Dunlevey

In June of this year, Frank will be Honored as “A Distinguished Member of the Regiment” in a ceremony being held at Ft Campbell Ky (Home of the 101st Air Assault Division) for his service in Viet Nam and his more recent Service in the Last Administration at the Department of State as Chief Banking Officer and Senior Advisor. He intends to specifically recall his High School Classmate “Robbie Robbins” in his acceptance speech.

From my friend Frank Dunlevy after talking with Kathleen Robbins, Robbie’s wife:
“Your comments on Robbie and his Bravery are so true. In addition, as the 101st Airborne, and the Tiger Force especially, were full of Brave Men, his courage and steadfastness stood out even within that small Fraternity.”

I am glad you still have his many medals as they reflect an extraordinary Military Career of heroism and service. One that you will probably find is the “Combat Infantry Badge” (That is the Silver Rifle, on the Blue rectangle Background, surrounded by the Silver Wreath) , this is the most highly coveted Award of all , as it is reserved only for Men who Served in a real Combat Unit and engaged directly with the Enemy.

On each Memorial Day, I read to my family the names of the 51 men in my Unit who did not return, and I always include Robbie’s name along with several others that I served with. In addition I read this short Poem by a Helicopter Pilot named MAJ Michael O’Donnell:

If you are able
save them a place inside you,
and save one backward glance when you are leaving
for the places they can no longer go.
Be not ashamed to say you loved them,
though you may not have always.
Take what they have left, and what they have taught you
with their dying, and keep it as your own.
And in that time when men decide, and feel safe, to call the war
Insane, take one moment to embrace these gentle heroes
You left behind.

Three months after penning this Poem, MAJ O’Donnell was killed attempting to rescue a LRRP Team that was under attack along the Cambodian Border.

Gentle Heroes All. My thoughts and prayers are with you and Robbie’s family this Memorial Day weekend.

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie,
In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields — John McCrae

…We cherish too, the poppy red That grows on fields where valor led, It seems to signal
to the skies That blood of heroes never dies… – Moina Michael

We all complain about high taxes, traffic, bad government, bad judges, bad prosecutors, bad presidents, and bad everything. The list is long on things we complain about. In America we have the right to complain. Try that in some foreign country and your life will be ended. We live in a free country where opportunity exists for all people. People from all over the world want to come to the United States of America.

Members of TCDLA and HCCLA and their family members who have served, or are serving, will be listed at the end of this article. They all need to be recognized for their sacrifices, be it large or small. Some of us were in the military reserve and some were in the middle of battle and saw their comrades dying around them.

Some were brave men who did extraordinary things in battle to fight for our country. One member at a recent seminar in Plano said, “I was only in the Naval Reserve.” I reminded him of the phrase by John Milton, “Those also serve who stand and wait.” Even those who were, or are standing in wait, are serving. As we have seen from recent
history, many of those who were standing and waiting were called to active duty and sent to foreign lands to serve and fight if needed. Many of those who were standing and waiting went overseas and never came back.

The problems facing Veterans have gained some attention and in many counties there is now a Veteran’s Court. They recognize that Veterans have special needs. Too many times, when representing a Veteran, I try to point out to the prosecutor that this person served our country and may have suffered some disability or some change that affected
the Veteran’s behavior. Too often I have heard the prosecutor say, “Well, everybody has some kind of excuse.” No, I point out everybody did not go through what the Veteran did. This attitude prevails in every court room across the state. Most of these people never served in anything, not even Cub Scouts. Few judges in the Harris County courts were in the military. The exceptions were Judge Mike McSpadden and Judge Ted Poe.

As lawyers representing Veterans, we need to get the military records and prepare a mitigation motion or motion to dismiss the case. We need to be vigilant in our fight for the Veteran client. If there is a Veteran’s Court, try to get the case transferred there. If there is no Veteran’s Court then try to get other Veterans to help you do your best for
the client. Get all the people from the VFW or American Legion to come to court and see what happens. Even bring the members of the Veteran’s motorcycle clubs, the Patriot Guard, and Rolling Thunder. Go to military.com to get a list of Veteran groups. If the Veteran has alcohol or dug problem, bring the AA or NA group too. It has proven to
be very effective.

Famous wartime quotes:
A good battle plan that you can act on today can be better than a perfect one tomorrow.
-General George Patton
Freedom is the right to be wrong, not the right to do wrong.
-John Riefenbaker
Never trust a private with a loaded weapon, or an officer with a map and compass.
-A Murphy’s Law of Combat
You don’t win a war by dying for your country. You win a war by making the other son-of-a-bitch die for his.
-General George Patton

Richard Grenier said, as George Orwell pointed out:
“PEOPLE SLEEP PEACEABLY IN THEIR BEDS AT NIGHT ONLY BECAUSE ROUGH MEN STAND READY TO DO VIOLENCE ON THEIR BEHALF.”

The following members of TCDLA or HCCLA (or their family members or investigators) served in the military and we honor them all:
*Reiffert Riley Evans
*Alan Schein
Richard “Racehorse” Haynes
Robert Scardino, Sr.
John Saur
Andrew Lannie
Victor Blaine
G. Wesley Urquhart
John Urquhart
Lucio Martinez
Bobby Mims
Bernie Trichter
Herman “Hymie” Trichter
Lucille Trichter
Albert Fickman
Philip Fickman
Albert Schein
Max NewDelman
Jack Zimmermann
Terri Zimmermann
Kyle Sampson
Abraham Cox
Abraham George Washington Cox
Ernest L. Pelton
Wilmer M. Pelton
Joe L. Pelton
Robert C. Pelton
Robert O. Pelton
Joseph Washington Mathis
BF Harless
WD Harless
Cullen Harless
SL Hardcastle
Charles Hardcastle
Norman Harless
Robert W. Kelly
Jack Kelly
Marcel Kelly
Charles Dirnbauer
Mark Dirnbauer
Katie Dirnbauer
Rod Schuh
Rod Schuh, Jr.
Will Gray
John Morgan
Warren Burnett
Buck Files
Jim Brown
Rodney Williams
Pat Williams
Dr. Phillip Lewis
Maricia Brooks
Max Scott
Stan Weinberg
William Flynn
Mike McCollum
Charles Wetherbee
Terence Russell
Jesus Garza
Don Davidson
Charles Mabry
Richard Mabry
Zachary Curtis
Steven Green
Dorsie Ray Green
James Matthew Ratekin
Matthew Brent Ratekin
Donald Hoover
Don Bailey
John Hunter Smith
Eliseo Morin
Charles Easterling
Bill Torrey
Frederick Ullrich
Dale Ullrich
Louis Ullrich
Michael Finger
John David Leggington
Harry Belden
Louie Greco
Raymond Zimmerman
Charles W. Tessmer
George Miner Jr.
Bill Torrey
Louis Greco
Lorton E. Trent
Oscar Trent
Olen Poole
Max Basket
Bill Baskett
Arthur Leslie Kagan
Harry Belden
Gerald Rogen
Jesse Pruett
Max Scott
James Story Sr.
James Story II
Santiago Salinas
Tom Berg
Tom Moran
Pat McCann
Bennie Ray
Mark Vinson
Tony Chavez
John Patrick Callahan
David Patrick Callahan
Donald Hoover
Don BaileyJohn Hunter Smith
Eliseo Morin
George E. Renneburg
Jeffrey Brashear
Steven Green
Lanhon Odom
John M. Economidy
Byron G, Economidy
John “Bud” Ritenour
Larry Sauer
Forrest Penney
Frederick Forlano
Daniel Moreno
Abel Palomo
Michael Moreno
Joseph Moreno
Randi Ray
Steve Green
Jeusu JD Garza
Jerry Parr
Jefferson Moore
Leonard Martinez
Stephen Ferraro
John Convery
Julie Hasdorff
Benjamin Thomas Hudson Jr.
Ebb Mobley
Louis Akin
Sergio Tristan
John Youngblood
Charles Wetherbee
Dr. William Flynn
Alfred Dane
Alvie Dane
Charles Russell
Terence Russell
David Randall
Tanner Yeats
Herman “Hank” Lankford
Robert Harold Jackson
Arlan J Broussard
Richard Trevathan
Jim Skelton
George Parnham
James Barlow
David Black
J.C. Castillo
Logan Dietz
Ralph L. Gonzalez
Connie Williams
Hal Hudson
Guy Womack
Charles W. Lanehart
Matthew Daniel
Lonzo McDonald
Patrick McDonald
Warren McDonald
Ron McLaurin
Herbert Wolf
Theodore A. (Tip) Hargrove, III
Buddy Balagia
Travis E. Kitchens
Zachary A. Garcia
Jeff King
Patrick McLain
Cullen Elrod
DaSean Jones
Joe Varela
Bob Heath
Hank Johnson
David Zimmerman
Todd Lehn
Thomas Kelton Kennedy
David G. Ritchie, Jr.
Anne K. Ritchie
Bobby Mims
Bob Estrada

The following are friends who served in the U S Military:
Ronald Joe McCoy
Mike Latimer
Frank Dunlevy
Robert Paul Robbins
Danny Morris
Kirk Holder
Bubba Jordan
Neil Elliott
Mike Peters
Mike Murphy
Donnie Martin
J. T. Hatteway
Larry Moody
Billy Huddleston
Larry Moody
Arnold Slessinger
Mike Davis
Ed Mallett
Wayne Turnbow
Brandon Bess
Joe Haralson
Denis Jones
Larry Atkins
Butch Peterson (Killed in Action)
John Bottoms
Jerry Mace
Mike Rhea
John Miller
Charles Walker
Allan Simpson
Mike McCoy
Stephen Greenly
Mac Cobb
Richard Valdez
Milton Wright

My Grandson Private Sam Pelton, serving in the U S Army. Private Pelton is now at Drone School at Fort Huachuca, Arizona. In August he will be going to Fort Campbell, Kentucky for more training. Sam has been selected to be in the 160th infantry NIGHT STALKERS.

 

 

 

 

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TYLA Voter Information

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voteamericaToday, every adult American citizen regardless of race, gender, religion or socio-economic background has the opportunity to vote. The dreams of our founding fathers, propounded by action, gave us the right to change, the right to be heard, and the right to vote. However, this was not always so. To remind us of our civic duty, Vote America! educates students about the heroic efforts made for equality and democracy; the struggles of the civil rights era, passage of the 1965 Voting Rights Act, and the 15th, 19th, and 26th amendments to the U.S. Constitution are all chronicled in this historical video.

Vote America: Court the Vote continues the Texas Young Lawyers Association’s long-standing commitment to producing quality, law-focused education programming for the citizens of Texas and beyond.

For more information on this project, please visit tyla.org/Vote-America

Texas Young Lawyers Association
1414 Colorado Street, Suite 502
Austin, Texas 78701-2487
(800) 204-2222 ext. 1529




Judicial Misconduct Complaint

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P R E S S   R E L E A S E TCDLA - Texas Criminal Defense Lawyers Association on Lawyer Legion
FOR IMMEDIATE RELEASE

CONTACT:
Mark Thiessen, HCCLA President
(713) 864-9000 or email: Mark Thiessen

or Grant Scheiner, TCDLA President
(713) 783-8998 or email: Grant Scheiner

HCCLA and TCDLA Jointly File Judicial Misconduct Complaint on Harris County Judge Ramona Franklin, 338th District Court

HOUSTON, TX — The Harris County Criminal Lawyers Association (“HCCLA”) is the largest local criminal defense bar in the United States, with more than 700 active members engaged in the defense of citizens accused of criminal acts. HCCLA has, for over 50 years, stood for criminal justice, criminal justice reform, and against government and judicial overreach.

The Texas Criminal Defense Lawyers Association (“TCDLA”) is the largest state association for criminal defense attorneys in the nation with over 3,200 members. TCDLA’s purpose is to protect and ensure by rule of law and protect those individual rights guaranteed by the Texas and federal Constitutions in criminal cases; to resist the constant efforts which are now being made to curtail such rights; to encourage cooperation between lawyers engaged in the furtherance of such objectives though educational programs and other assistance; and through such co-operation, education, and assistance, to promote justice and the common good.

Today, HCCLA and TCDLA jointly filed a formal complaint with the Texas State Commission on Judicial Conduct against Judge Ramona Franklin, Judge of the 338th District Court of Harris County, Texas for violating the Canons of the Texas Code of Judicial Conduct. More specifically, Judge Franklin has repeatedly and illegally revoked defendants’ bonds right after they were released from custody and, worse, illegally denied them bail in violation of the United States and Texas Constitutions.

While many judges have been criticized for their decisions to release defendants on bail — individuals who are presumed innocent and legally entitled to bail — Judge Franklin has operated beyond the opposite end of the law, acting in a repeated, unlawful manner by revoking defendants’ bonds for no valid, legal reason. These individuals and their families spent their hard-earned money to secure their release so that they may fight their charges. Then, only making things worse, she then illegally ordered that they are to be held indefinitely without bail.

One individual sat in the Harris County Jail for 269 days after Judge Franklin illegally revoked his bond and put him back in custody back in November of last year. A little over two weeks ago, an appellate court found that Judge Franklin violated the law by doing so and ordered his immediate release. Despite this ruling, Judge Franklin continued to act in violation of the law by revoking other defendants’ bonds and denying them bail altogether.

The Commission on Judicial Conduct, pursuant to their lawful authority, will investigate the complaint and decide whether to take appropriate disciplinary action, including issuing sanctions, censures, suspensions, or recommendations for removal from office.

In the meantime, HCCLA and TCDLA will continue to monitor Judge Franklin’s actions, as well as other judges who decide to violate their obligations to comply with and be faithful to the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

For further inquiries and interviews, contact Mark Thiessen at (713) 864-9000 or Grant Scheiner at (713) 783-8998.

View or Download Formal Complaint:

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The Impact of COVID-19 on the Global Economy

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Written By : Kim Borwick  

Americans are taking necessary precautions for their health and the health of others within their communities, adapting their behaviors in an attempt to flatten the curve. Second only to health concerns are Americans’ worries over their individual finances — including job security, health care costs and retirement savings — and fear for the national economy.

The $2 trillion CARES Act has enacted policy to mitigate the crisis to a degree, but experts predict that it will be months before the economy is back on track.

The immediate impact of COVID-19 has been swift and crippling to the economy.

With 41 states and Washington, D.C., having already issued shelter-in-place orders, governors of states in the Midwest and the South have dug in their heels, refusing to issue statewide orders for fear of devastating their economies.

The dilemma facing leaders is the paradox of taking measures to contain the virus as a way to sustain the economy.

If, as Dr. Anthony Fauci has urged, the federal government imposes a nationwide stay-at-home order to prevent further spread of the coronavirus, the pause will have an immediate effect on the economy. And if Dr. Fauci’s and other health experts’ advice is dismissed, we will likely see thousands more cases of COVID-19.

This will only prolong the economic fallout caused by the virus, a point Bill Gates argued in The Washington Post.

“Until the case numbers start to go down across America — which could take 10 weeks or more — no one can continue business as usual or relax the shutdown. Any confusion about this point will only extend the economic pain, raise the odds that the virus will return, and cause more deaths,” Gates wrote on March 31, 2020.

Criminal Court Reopening and Public Health in the COVID-19 Era

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FOR IMMEDIATE RELEASE
CONTACT:
Mark Thiessen, HCCLA President
(713) 864-9000 or email: Mark Thiessen

 

July 13, 2020 – Houston, Texas – In an effort to provide solutions to this unprecedented Pandemic, we wanted to draw your attention to the June 2020 Statement of Principles and Report by the National Association of Criminal Defense Lawyers (NACDL) entitled Criminal Court Reopening and Public Health in the COVID-19 Era.  

Please let this letter suffice as HCCLA’s formal adoption of this report. We urge you to take the time to read the core principles for reopening criminal courts which specifically affect us all. 

 

Thank you for your attention and time. Please feel free to contact me any time to discuss how we can move forward while keeping the safety of all of us as the upmost of importance.

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COLD TEXTING; The New Wave of Barratry

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By Ed McClees and Mark Thiessen

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds.  This bond paperwork then becomes public record.  In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer.  It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world.  Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents.

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.”  It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry.  Tex. Pen. Code § 38.12(b)(1-2).   The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].”  Tex. Pen. Code § 38.12(b)(3).[1]

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.”  Tex. Pen. Code § 38.12(i).

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.”  Tex. Disc. R. of Prof. Cond. 7.03, com. 1.  The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.”  Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact … seek professional employment concerning a matter arising out of a particular occurrence or event … from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…”

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.”  Tex. Disc. R. of Prof. Cond. 7.03(f).  Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note, the Bar will never give a lawyer clearance over the phone.  All advertisements must be submitted in writing and if approved will be approved by letter with a green stamp on it.  Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved.  Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs.  See Tex. Disc. R. of Prof. Cond. 7.05.  The font, color, material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years.  However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text or direct phone call.  The same rule that governs mail outs also governs electronic or digital solicitations.  Id.

We are aware of a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message, and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.”  Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code.  Tex. Occ. Code § 952.101.  Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity.  Tex. Occ. Code § 952.102.

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals.  Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message.  Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was send for emergency purposes.  While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

 

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime in order to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number that has not contacted you first or asked you through some sort of submission, to contact you.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry.  Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text was to mimic the requirements established in the Rules, would it be ethical?  As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability.

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit.  This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers.

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

  1. Direct Mail Outs don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even land lines.  Many subscribers must pay for call minutes or data used for texting.  Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers.  The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
  2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
  3. A person’s cell phone is a greater invasion of privacy than a land line. In the past municipalities provided phone books which gave specific addresses or names for landline numbers.  Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address.  Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy.  Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
  4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Disc. R. of Prof. Cond. 7.03, comm. 1.  An unsolicited text message can reach a prospective client literally the minute after they get out of jail, when that client is particularly vulnerable.
  5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases.  See Penal Code § 38.12(d)(2)(A).  Shouldn’t people accused of crimes, with all of the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar.  This article is not intended to encourage grievances, prosecution, or civil lawsuits;  rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients.  Technology may be evolving, but the basics of law remain the same.  Remember, pigs get fat, hogs get slaughtered.  If you have a new way to market, get it approved.  The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

 

[1] Lawyers should be weary of lawyer referral services, which is discussed in more detail in another section.

NRG Plan

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FOR IMMEDIATE RELEASE
CONTACT:
Mark Thiessen, HCCLA President
(713) 864-9000 or Mark Thiessen

NRG Plan to Resume Jury Trials

June 29, 2020 – Houston, Texas – HCCLA sent the following letter to Hon. Judge Susan Brown, Presiding Judge, 11th Judicial Administrative Region regarding the plan to implement jury trials at the NRG Stadium.

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Harris County Criminal Lawyers Association
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