Tag Archives: Texas Law

Steve Stockman Still Sits in Slammer

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Former Republican Congressman Stephen E. Stockman (TP -Texas) has been denied compassionate release by U.S. Dist. Court Judge Lee Rosenthal. Stockman will be serving the rest of his well-deserved 10-year sentence at FCI Beaumont Low where he has been locked up for almost 2 years. Stockman also asked to have his sentence reduced to time served based on the high number of COVID-19 infections at federal slammer located in the East Texas district that the disgraced former representative used to serve. As Judge Rosenthal noted, Stockman’s case was not helped by the fact that he had already caught the virus and recovered from it after filing his motion.

“Courts have found that an increased risk of COVID-19 infection or severe symptoms or effects because of an inmate’s underlying conditions shows the ‘extraordinary and compelling reasons’ necessary for a sentencing reduction under § 3582(c)(1)(A). But when, as here, an inmate is infected and recovers, courts have found that those risks change and diminish.”

For those who don’t remember or would like to forget – the former political darling of the Tea Party was a firebrand staunch, law and order conservative. But Stockman was convicted in April 2018 by a federal jury of using charitable contributions to fund his political campaign and pay for personal expenses. He was sentenced to 10 years in prison after the jury found he fraudulently solicited about $1.25 million in supposedly charitable contributions.  In Trump’s America that makes him a very modest grifter.

Prosperity Gospel Promoter Not So Prosperous Anymore

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Red has long railed against the “Beggar Christians” that populate some religious TV networks with Pat Robertson’s CBN being the worst offender.  There are radio beggars out there too. Red fondly remembers listening to “Brother Al – that’s A L”) as a boy and being amused by his schtick.  At least the beggars are somewhat honest in that they plead for your money so they can stay on the air and continue to spread their version of the gospel which generally holds that if you are a true believer God will reward you with riches and prosperity in this lifetime.  Red is unaware of the Biblical underpinnings of that claim.

But William Neil “Doc” Gallagher, was not technically a “radio preacher” – he just used them to promote his Christian financial wizardry.  Gallagher advertised and promoted his money management firm Gallagher Financial Group, Inc. on Christian radio.  Gallagher, the author of “Jesus Christ, Money Master” (and yes, you read that correctly) received high praise from some far-right preachers as Robert Jeffress, the senior pastor of First Baptist Dallas,  and regular Fox News contributor called the book “required reading for anyone who is looking for a highly practical and thoroughly biblical guide to financial success.”

Red wonders how Jeffress feels now as Gallagher has been found liable for U.S. Securities and Exchange Commission charges related to a $29 million Ponzi scheme that targeted the elderly.   Gallagher, who referred to himself as “The Money Doctor,” promoted his retirement-planning services on a weekly radio show that combined his bullshit investment advise with Christian talking points.  According to the SEC, “Gallagher makes frequent religious references on his shows, seeking to appeal to a Christian audience.”  When broadcasting on Saturday he signed off with, “See you in church tomorrow.”

GFG claimed to pay equal attention to the spiritual life of their clients and their finances.   As the now removed website stated:

“Our mission is to be a vehicle of God’s peace and comfort to as many people as possible, helping first with their financial peace of mind, then also with their spiritual, emotional, and family well-being.”

But in 2019, it became clear that Gallagher was running a Ponzi scheme using new money to pay off older investors and using his investors’ money to buy additional airtime to recruit new suckers and support his lifestyle.

In addition to his SEC troubles, Gallagher has already pleaded guilty to multiple felony counts in Texas state court and been sentenced to 25 years and required to pay over $10 million in restitution.   He should have run for office as a Republican.  He certainly has the qualifications.

Shake Shake Shake – Shake Your Booty – But not During Mediation

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Chief U.S. District Judge Lee Rosenthal  of the Southern District of Texas expressly rued having to use the term “butt shaking” in an  opinion arising out of alleged attorney misconduct.  The Judge was writing in response to a motion to sanction  former BakerHostetler attorney Dennis Duffy for shaking his groovy thing  and insinuating that opposing counsel was gay because he has a ponytail during  a mediation in which Duffy represented his client Chevron Phillips Chemical Co. in an employment discrimination case.  The Judge called the behavior “clearly outside professional bounds,” but determined that sanctioning Duffy was not needed.

“One of the sentences a judge does not imagine — much less welcome — writing includes the words ‘butt shaking’ in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.

Duffy’s professional reputation, and the closely related ability to attract new business, will no doubt suffer, and they should.”

Duffy did suffer consequences as he was forced to withdraw from the case and is no longer employed by BakerHostetler.

In the interest of full disclosure, Red had some past interactions with Duffy when he was General Counsel for a prominent Texas university located in a large city.  In his humble opinion, Red found Duffy to be pompous and insufferable but he never got to see Duffy engage in  some righteous butt shaking – an opportunity missed.

 

The Year of the Woman (Judge that is)

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Red was a bit perplexed by the utter dominance of the female judicial candidates in the Democratic primary earlier this month.  If you were a male running for judge in one of the major urban counties and faced a female opponent, you were very likely out of luck and not going to be on the ballot in November cruising to victory.  That women were winning was not a particular surprise, but the margins of victory in many of these races were astounding.  In your typical judicial race (where maybe 1% of the voters have some clue about the qualifications of the candidates) some of the female candidates were winning by up to 40 points.  Red can understand the woman candidate winning based on demographics and turnout but a 40 point margin in a race between two unknowns is almost bizarre.

In the process, Texas lost some very good male judges.  That is not to say that the new judges will not be as good, but booting out those with a proven track record for the unknown is somewhat disturbing.   Fortunately Off the Kuff has some analysis that may keep Red from going off the deep end.

Trouble in Corny Dog Paradise

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One of the true treats of attending the Texas State Fair in Dallas is the chance to chomp on a freshly fried Fletcher’s Corny Dog.  Careful not to burn the roof of your mouth.  But there is trouble brewing and a full-fledged corny dog war is about to break out it would seem.  Various wings of the Fletcher family are now fighting over the trademark name.

In a lawsuit filed Thursday in Texas federal court, Fletcher’s Original State Fair Corny Dogs have sued mother and daughter Victoria Fletcher and Jace Christensen for selling corny dogs under the name “Fletch” to confuse consumers into buying their products. FOSFCD claim that Victoria and Jace are “estranged members” of the Fletcher family and are planning to open a “Fletch” restaurant right before the Texas State Fair begins next week to capitalize on the confusion.  .

FOSFCD dates back to 1942 when two brothers who had previously worked as vaudeville performers began selling corny dogs at the Texas State Fair.  Victoria Fletcher is divorced from the grandson of one of the original founders and neither she nor her daughter have any ownership interest in the family business according to the complaint.  But since February Victoria and Jace have been selling Fletch Corny Dog at various events, causing “a substantial amount of actual confusion”  as to whether the two brands are related.   However, Fletch is not selling corny dogs at the State Fair, so the likelihood of confusion seems limited at that venue.

And for the record, Red loves a good corn dog.

 

Chocolate Penis Spells Trouble in Waco

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The Waco Tribune-Herald reports that Thomas Gourneau of Cedar Hill has been charged with criminal harassment after sending a penis-shaped chocolate candy bar to a McLennan County Sheriff’s employee.  The prank, which targeted Tracy Chance who formerly worked for the Sheriff and is now a jailer, was based on a romantic rivalry between the two men over Gourneau dating Chance’s ex-wife.

The posting of the problematic pecker has been turned into a criminal case by an overzealous prosecutor likely because the target worked in law enforcement.  Even though there are allegations of long-standing animosity between Gourneau and Chance, it is hard to imagine that a local DA would be interested in such antics if the target of the prank had not been working for the Sheriff.  The chocolate cock was sent anonymously, so it required actual detective work investigating Gourneau’s bank and credit card records.  Red is glad to see that the McLennan County Sheriff and DA are doing God’s work after completely botching the prosecution of bikers in the wake of the fatal Twin Peaks shootout.  But it’s no laughing matter for Gourneau who faces up so six months in jail and a $2000 fine for his actions in sending the delicious dick to Chance.

Gourneau’s attorney, Cody Cleveland, questions the motives behind prosecution for sending a phony phallus. In his interview with the Tribune-Herald, Cleveland expressed his dismay with a complaint over a  succulent schlong.

“I question whether if I or somebody not involved in law enforcement had called 911 and said we had a matter that needed to be investigated and told them I had received a chocolate candy bar in the shape of a penis, how long I would be sitting before they arrived at my office or my house to investigate that crime,” Cleveland said. “I wonder whether or not there would be any kind of follow-up as far as a warrant issued or an arrest made.  I just think because this guy works for the sheriff’s office and it got delivered to him at the sheriff’s office that it was easy for him to walk across the hall and get a detective to look into the case. That’s the reason they went forward.”

Well, Waco has never been known as the most tolerant of Texas towns.  So if you are thinking of sending any edible genitalia (vanilla vagina?) in that direction, be forewarned.

 

Today in Texas History – April 15

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From the Annals of the Supreme Court – In1869, the U.S. Supreme Court handed down its decision in Texas v. White which essentially eviscerated the argument of individual state sovereignty apart from the Union.  The SCt ruled that Texas still had the right to sue in the federal courts despite having seceded in 1861.  Texas has sued for an injunction prohibiting George W. White and others from transferring U.S. issued bonds they purchased from the secession-era Texas State Military Board during the Civil War.  The bonds had been issued to Texas as part of the Compromise of 1850, but at the time of the Civil War not all such bonds had been issued.  Texas sold the bonds to raise funds durng the war.  After the war, the US Treasury refused to redeem the war-issued bonds.  Texas sued to reclaim the bonds from the purchasers.  Under Article III, section 2 of the US Constitution, which provides original jurisdiction in the Supreme Court in cases where the State is a party, Texas sued directly in the U.S. Supreme Court   At the SCt, the issue turned on whether Texas, having seceded and not having completed Reconstruction, had status in the Union and therefore the right to sue as a federal court.  Texas argued that the Union was indestructible and Texas’ status as a state remained unchanged by the war.  White argued that Texas, by seceding from the Union and waging war against the United States, had lost the status of a state in the Union and therefore had no right to sue in the SCt. In a five-to-three decision authored by Chief Justice S. P. Chase, the court held the Union to be indestructible and thus not dissoluble by any act of a state, the government, or the people.

Today in Texas History – November 30

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From the Annals of the Governing Documents – In 1869, Texas voters approved a new state constitution. The 1869 Constitution was adopted during Reconstruction in compliance with Congressional mandates.  The preface of the bill of rights in the new constitution reflected strong sentiment against the previous unpleasantness of secession and the horrors of the Civil War.  The Constitution of the United States was declared to be the supreme law.  Slavery was outlawed and the equality of all persons before the law was recognized.  This was intended to protect the rights of freedmen.  The 1869 Constitution was short-lived.  As Reconstruction ended, the very racist southern Democrats of the time called for a new constitution which was adopted in 1876 and provided strict limits on governmental powers.  That document is still the basis for Texas governance today – even though heavily amended subsequent years.

Will the Beaver Eat the Gator? Buc-ee’s claims Choke Creek’s logo is too similar

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Mega-roadside store chain Buc-ee’s has sued its much smaller competitor Choke Creek claiming that CC’s cowboy hat wearing alligator logo is too similar to Buc-ee’s baseball cap wearing beaver.   The trademark infringement suit was filed in December of 2015, but is being tried this week in U.S. District Judge Keith Ellison’s court in Houston.

Red for one has never confused a baseball cap with a cowboy hat or a beaver for an alligator – especially an alligator sporting some awesome “guns.”  Just saying.

Supreme Court Finds Texas Uses Obsolete Standard for Mental Illness in Capital Cases

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On Tuesday, the U.S. Supreme Court held that Texas has been using an obsolete standard in determining whether persons convicted of capital crimes have the requisite mental capacity to deserve execution for their actions.  In a  5-to-3 decision,  the Court determined that  Bobby James Moore, who killed a store clerk in in Houston in 1980 during a botched robbery, had not been judged by a correct standard for his decided mental deficiencies.  Guilt  was not an issue; nor was the fact that Moore had extremely limited  mental abilities. In fact, prosecution’s expert witness had testified  that Moore “suffers from borderline intellectual functioning.”  The case now goes back to the Texas Court of Criminal Appeals – a court notoriously favorable to upholding death penalty convictions.  The state must come up with a new method to determine if a convicted inmate is intellectually disabled and therefore ineligible for execution.   Texas can no longer rely on decades-old medical standards and a controversial set of factors.   The Texas Tribune has more.

 Moore was convicted of capital murder and sentenced to death in July 1980, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to Texas’ brief to the high court.

In 2014, a Texas state court used current medical standards, which looks for deficits in intellectual and adaptive functioning that began as a child, to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.

The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 — which claims intellectual and adaptive functioning must be “related,” meaning Moore’s poor adaptive skills could be traced to something else, like an abusive childhood. The test also uses several other nonclinical factors (the Briseno factors) to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on its test, that Moore doesn’t legally have the disability.

Included in the Briseno factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie, a childlike character who didn’t intend to kill a woman but simply didn’t understand his strength, should be exempt from execution. The state has argued the reference was an “aside.” Critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.

In the opinion, Ginsburg faults Texas for using current medical standards in other criminal cases, but not with the death penalty.

“Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake,” she wrote.

The Texas Court of Criminal Appeals ruled Moore was not intellectually disabled by looking at both intellectual and adaptive deficits. But the high court knocked down the ruling not only on adaptive functioning  — how he can learn new skills, etc. — but also on intellectual functioning as well. Previous court rulings have stated that when intellectual functioning is “borderline,” with an IQ at or around 70, the state must look into adaptive behavior. Moore’s IQ, 74, led the high court to rule that this was necessary, which is what triggered Roberts’ dissent.

Roberts agreed that the nonclinical Briseno factors are an “unacceptable method” of determining adaptive deficits but said the Texas Court of Criminal Appeals still performed its due diligence in determining Moore’s intellectual functioning.

“The Court overturns the CCA’s conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering ‘objective indicia of society’s standards’ reflected in the practices among the States,” Roberts wrote. “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”

Moore’s case was the third time since 2002 that the high court considered the death penalty and the intellectually disabled. That year, justices ruled that executing people with intellectual disabilities is unconstitutional, but it left it up to the states to legally determine the condition. In 2014, the court weighed in on borderline cases, ruling that states can’t use an IQ below 70 as the sole way to define the disability.