Texas Divorce News

Several humorists have said that if you like sausage or the law, you shouldn’t watch either one being made.

As I write this, the legislature is debating changes to the law regarding Trials by Special Judge, which is the law that allows me to bring a retired judge to my office and do prove-up hearings in my office instead of taking my clients to the courthouse.

The prove-up hearing is the last step in getting divorced if you have an agreement. If you didn’t have an agreement, you’d have a trial in front of the judge and the judge would tell you the terms of your divorce. But, if you’ve got an agreement, one of you goes before the judge and gives very brief testimony to allow the judge to sign the Decree. The questions are things like, “state your name” and “do you believe the division of the community property estate is a just and right division?” Aside from names, almost all of the questions are answered with “yes” or “no”, and the entire hearing takes about a minute and a half.

But, to get in front of the judge for a minute and a half, you have to fight rush-hour traffic to get to the courthouse, find the right courthouse building, find a parking place, go through security, find your lawyer, go find a courtroom where a judge will be hearing proveups, get your case in line, wait for the judge to take the bench (you hope he didn’t have a dentist appointment and will be an hour late), and then wait for your case to be called. Because of the traffic and hassles when I have to prove up a divorce in downtown Dallas, I leave my home at 6:30 a.m. and will usually be back in my office by 10:00.

Decades ago, when mediation was a new thing in Texas, the legislature passed the Trial by Special Judge legislation at the same time as the mediation legislation. People in California call it “Rent a Judge”, and they use it extensively for celebrity divorces and corporate litigation involving trade secrets, because they appreciate the privacy of doing the trial away from the public eye.

The procedure is that all parties to a lawsuit agree to use a retired judge, then they submit an agreed order to the elected judge, and ask the elected judge to refer the case to the retired judge they’ve agreed on.

The problem is that some judges won’t sign the order of referral, and most don’t give a reason why. So, it doesn’t save my clients much money if I can do some proveups in my office, but I still have to go to the courthouse for other proveups (and I could have done all my Dallas proveups when I went to Dallas for the one that wasn’t approved for an office proveup).

This was frustrating, as I knew I was on to something that my clients absolutely love, but we can’t get the judge to allow it, and we don’t even get a reason why.

State Representative Will Hartnett from Dallas introduced a bill into the legislature this last session that would require the elected judge to refer the case to a special judge if that’s what all the parties agreed to.

I went down and testified before the House Judiciary Committee in Austin, and told them the Special Judge Statute was the greatest thing since sliced bread, that my clients love it, it takes a burden off of the elected judge, and doesn’t cost the public a dime. Nobody testified against the bill, and the committee unanimously voted to send the bill to the house floor for the “local and consent calendar”, which means they didn’t think anybody would vote against it.
When the bill hit the house floor however, there was loud debate against the bill, and it simply shocked me.

A little background on the dispute. As you may know, for most of the last couple of decades, most (almost all) of the Dallas judges were Republicans. This last November, however, Dallas suddenly became Democratic, and every Dallas Republican judge who had an opponent was replaced with a Democratic judge. Still not seeing the connection? Well, neither was I. So read on.

Well, it turns out that the new Democratic judges were having their share of problems, mostly stemming from the fact that they were new. There’s a learning curve to any job. And, they were catching their share of flack from Republicans for not doing the smooth job that their experienced predecessors were doing.

Because Rep. Hartnett, the sponsor of the bill, was from Dallas and was a Republican, many of the new Dallas Democratic judges assumed that the bill was an attack on them, to call them incompetent, and to say that folks would rather pay money to use a retired judge than use the Democratic judge the people of Dallas County had elected.

Wow. I was shocked. I suppose you can find a conspiracy wherever you want to look for it. But, I’ve used the Special Judge statute more than any attorney in the State of Texas, and I can honestly say that I don’t care whether the judge is Republican, Democratic, Libertarian, Independent, or Mugwump. And, for the purposes of the Special Judge statute, I don’t care whether the judge has been in office 30 days or 30 years. And, frankly, I had about the same percentage of Dallas County Republican judges turning me down for office proveups as I now have of Dallas County Democratic judges turning me down.

Rep. Hartnett offered a floor amendment to his own bill, to overcome the objections, which said that the referral to a special judge was only mandatory if it was for a proveup, and not for an actual trial. Nonetheless, there was acrimonious floor debate accusing Rep. Hartnett of trying to circumvent the judges elected by the citizenry.

At any rate, the bill passed the House of Representatives by a good margin (over 90%), and it’s on to the Senate. I just hope some of my past clients who have used office proveups (or who wish they could have) will take the time to tell their Senator that this is really good for the people of the State of Texas, and is not about avoiding judges of any particular experience or political stripe.