Civil Rights

Just and Fair was not afforded to the average Joe the plum only landlords slumb. in a civil court and the kids in jail cant comment~ write?

2008-10-31T01:15:00.000-07:00

County Court-at-Law No. 5 Judge Carl E. Lewis dies at 56

By Mike Baird (Contact)
Originally published 02:41 p.m., October 25, 2008
Updated 12:30 a.m., October 26, 2008

Carl Lewis

CORPUS CHRISTI — County Court-at-Law No. 5 Judge Carl Eric Lewis died Saturday morning from complications of respiratory distress, family members said. He was 56.

The jazzman and juvenile and family court judge called 911 Thursday night with abdominal pain, his brother David Lewis said. He and other family members were at the judge's side Saturday when he died at Christus Spohn Hospital Shoreline.

Services are pending.

"Our private upbringing gave us the responsibility that Carl exhibited in his public action," his brother said. "He felt so much for the people of Corpus Christi and was so proud to represent their best interest, from legal responsibility to their entertainment. Carl was happy to share his morals and talent with the community, and he has always been deeply gratified by the reception he received from people of all walks of life."

Lewis was elected Nueces County attorney in 1992 and fought for the juvenile system to be separated from the criminal court for more appropriate treatment of youth offenders. He served eight years before being appointed in 1999 to the new juvenile court, and all youth-related cases from eight courts were shifted to his bench.

In the first weeks after being appointed, Lewis was hospitalized with ulcerative colitis, a stress-related problem that nagged him. In November 1999, he was elected to the position with 61 percent of the vote and had held the judgeship since.

In 2005, an aortic aneurysm burst Sept. 19 during a high-profile case regarding the medical treatment of 13-year-old Katie Wernecke, whose parents were refusing prescribed treatment for her cancer.

"I was about to give my decision when pain shot through my chest and back," Lewis said in a 2005 interview. "I stood up and told the courtroom I would be right back."

He later signed his order from his hospital bed.

Lewis returned to the bench five weeks later and 25 pounds lighter after open-heart surgery.

His compassion for first-time young offenders and understanding of family while deciding the placement of children made him a powerful first offense in the justice system, said 117th District Judge Sandra Watts.

"He cared for the people who came into his court, and that's what made him such a phenomenal judge," Watts said. "He understood the struggles of those families and combined a firmness for the law with a compassion of that understanding, a remarkable combination.

"We can all know the law, but it's knowing the community that made him such a successful judge."

Judges will meet Monday to determine how to cover his caseload.

Childhood influences

Lewis' childhood in Corpus Christi helped shape the way he conducted his court.

He grew up second youngest of six siblings, born Jan. 29, 1952, in a three-bedroom home in a middle-class neighborhood. Lewis played summer Little League in an open field where the juvenile detention center is now.

Frank Gallardo, 57, a retired truck driver, played baseball at age 13 with Lewis, who even then as a second baseman for the Elks displayed many of the qualities for which he would be known through his career.

"We won the championship that year," Gallardo said. "He was always a hustler. He took his team values into the world, after leaving a positive impression on a lot of us kids. He was the best candidate for any position on the field, and throughout his life he's been the best candidate for anything he ran for."

Lewis has said that his family history, with the early loss of his father, contributed to his understanding the value of family unity. He learned as a young teen that he was the great-great-grandson of a Louisiana plantation slave after his father, James, traced genealogy. His father, a helicopter repairman at Naval Air Station Corpus Christi, died from a heart attack when Lewis was 15. It forced Lewis and his siblings to work in fields picking cotton to help support the family.

Lewis was among the first students at Moody High School, which opened in the fall of 1967, and scored the new school's first touchdown on Sept. 9 of that year against Houston Westchester. Lewis was a 150-pound sophomore.

After being recognized in 1970 at Moody as an outstanding English and French student, Lewis was selected by the National Achievement Scholarship Program of Outstanding Negro Students for a scholarship to Cornell University. He turned it down because he wanted to attend the U.S. Military Academy at West Point, but a crooked index finger from a football injury kept him out. He was accepted at Yale University and graduated in 1974 with a bachelor's degree in English before returning to Corpus Christi.

His first work back home showed him the city's poverty at street level as he worked for the city's Human Resources Department to help at HIALCO, the Hillcrest, Ayers, Leathers and Coles neighborhoods' industrial opportunity center, which offered job training for low-income people.

"Carl had a big thing for low-income, minority children," said Gloria Scott, vice president of the Black Chamber of Commerce and co-chair of Juneteenth Coalition.

"He was always trying to show others how to do the right thing. He made significant civil rights strides for this community. The one word for Carl Lewis would be 'tremendous.' "

Lewis attended University of Texas School of Law, graduating in 1979.

He first worked as an assistant city attorney and later as an assistant county attorney before leaving public service for eight years as a criminal defense attorney.

Community work

Lewis became as much a icon outside the courtroom as he was on the bench. He served in numerous civic service organizations, on community boards and as a mentor to youths. His band, Carl Lewis & the Deadbeats, formed in 1994 to raise money for the Women's Shelter of South Texas. Since then, the group has performed to benefit other area organizations and has raised millions of dollars in more than 250 performances.

Attorney David Bright, a close friend and guitarist in the band, said Lewis' charisma drew people to the judge.

"I don't believe I know anyone in the world who is more beloved than Carl Lewis," Bright said.

Well-respected

The band was scheduled to play Saturday for the Rotary Club at the Town Club.

Longtime guitarist and friend Tyner Little, a spokesman for Nueces County, said he talked with Lewis on Friday, who told him from the hospital to play without him.

"Carl would say the show must go on," Little said Saturday.

"But all the band members know there's no way we can pick up an instrument without our frontman. He loved the band so much that he was concerned about missing the gig.

"Carl was so respected by other races because he was one of everybody," Little said. "He didn't live a color, to him it wasn't about the color of your skin; it was about the color of your soul. I've never met somebody so humble, intelligent and caring as my friend Carl.

"While band members may play in some form or fashion, we've never played without him, and Carl Lewis & the Deadbeats will never play again."

On Saturday, that extended family of bandmates, colleagues and friends sought to console Lewis' family at his mother June Lewis' home.

"Mother is a tough woman," said Victor Lewis, the oldest surviving sibling. "We deal with death our own way and have always been private, despite Carl being such a public figure. There's nothing we can do except thank all of the people who have expressed their condolences."

Lewis' children, Hayden Summer, who works in Houston, and Benjamin David, a student at Howard University in Washington, D.C., were en route to Corpus Christi on Saturday.

Lewis is survived by his mother, his children and four brothers, Victor, 63, James, 61, David, 60, and Michael, 55.

Contact Mike Baird at 886-3774 or bairdm@caller.com

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(74) User Comments:

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Posted by 701079 on October 25, 2008 at 3:01 p.m.

This is a great loss to the children of this community. Judge Lewis did an outstanding job of trying to do what was best for children involved in CPS cases and juveniles who had come before him. There will be so many mourning the loss.

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Posted by 715189 on October 25, 2008 at 3:10 p.m.

May God bring comfort to his family and friends. He was a great asset to our community and Justice system.

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Posted by 364856 on October 25, 2008 at 3:12 p.m.

What a loss!!! He was a very fair and honest judge - a truly class act in every respect!!!

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Posted by 277671 on October 25, 2008 at 3:16 p.m.

So sad. 56 isn't really that old. R.I.P.

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Posted by 235089 on October 25, 2008 at 3:18 p.m.

We have lost a real honorable man at such a young age. Bless his famly. We all will miss him and the great work that he did in his lifetime.

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Posted by 710372 on October 25, 2008 at 3:19 p.m.

May God bless his children/family...and may he rest in peace. Judge Lewis you will be missed.

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Posted by 699733 on October 25, 2008 at 3:19 p.m.

in response to 701079

I agree with you Judge Carl Lewis death is a great loss to our community. He was a very nice man. May he rest in peace.

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Posted by 715210 on October 25, 2008 at 3:22 p.m.

Judge Lewis worked so diligently for the children in our community, for their safety and well being. My prayers go out to his family..

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Posted by 411153 on October 25, 2008 at 3:26 p.m.

Carl was a wonderful and gifted man. We will miss him immensely.

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Posted by 715167 on October 25, 2008 at 3:27 p.m.

My deepest regards to the family. A lost to you and many,many others

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Posted by 292564 on October 25, 2008 at 3:30 p.m.

Wow, I am in shock. This is a terrible loss for our community.

Carl Lewis was a great guy. I will mourn his loss and my sincere condolances go out to his family.

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Posted by 257671 on October 25, 2008 at 3:41 p.m.

My prayers are with the Lewis family. The judge was a great man, he aslo made my daughter and Son-in-law wedding very memorable . May he rest in peace.

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Posted by 234600 on October 25, 2008 at 3:41 p.m.

Judge Lewis was a wonderful man. He will be missed by all.

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Posted by 700308 on October 25, 2008 at 3:48 p.m.

God Bless his family, and friends, we truly lost a great man. Carl Lewis was the best and a fair judge. I will mourn his loss and my condolences go out to his family.

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Posted by 699945 on October 25, 2008 at 4:19 p.m.

:( May God bless him and his family.

I had the pleasure of going before him to adopt my children and he was a very kind man. Stayed around afgter court to pose for pictures with the new family and clowning around with the kids. Even saying let me come down to there level to get some shots with them.

As my son says that is his JUDGE, to anyone that will listen.

Judge Lewis THANK YOU for your kindness, your patients, understaning, and most of all being a CHAMPION for the children of South Texas.
\
You will be missee.
Rest In Peace.

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Posted by 700343 on October 25, 2008 at 4:20 p.m.

As former CASA volunteers in Corpus Christi, we had the honor to know Judge Lewis.
He was truly a Judge who loved and cared for the Youth.
Our condolences to his family and your community for that loss.
Vancouver/WA

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Posted by 233517 on October 25, 2008 at 4:24 p.m.

What a tragic loss for our community. I always liked him and sometimes I would run into him and he always had a smile on his face. If I'm not mistaken, he had a band that he played in and played very well.
God bless Judge Lewis' family and may he rest in peace.

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Posted by 323897 on October 25, 2008 at 4:31 p.m.

I am in complete shock! Although many didn't agree with all his rulings, he was a great representative in the juvenile justice system. I will miss interacting with him and will miss seeing his great smile from behind the bench.....

My prayers are with the family.

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Posted by 245928 on October 25, 2008 at 4:32 p.m.

Carl Lewis and the Deadbeats - what a band! Much love and many blessings to all whose lives he touched.

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Posted by 357501 on October 25, 2008 at 4:55 p.m.

This is an unimaginable loss for the community...my thoughts and prayers go out to his family.

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Posted by 238312 on October 25, 2008 at 5:17 p.m.

Carl Lewis was a very generous person who REALLY cared about the children and the families he worked with. The Deadbeats are an all time fav for many of us. They so generously played for us, for free, for ACS Relay for Life for many years. What a beautiful gift. Thanks again, Carl. We will miss your beautiful smile.

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Posted by 304565 on October 25, 2008 at 5:23 p.m.

We were fortunate to have someone of his caliber on the bench here in Corpus Christi. Rest in peace Judge Lewis and my deepest condolences to the Lewis Family.

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Posted by 272663 on October 25, 2008 at 5:47 p.m.

I am sadden at the news as I open the caller time online this evening, I had the honor of sitting in his courtroom several times as a local social worker. Last week I was in the audience as he spoke to a group of social workers at the United Methodist Church, I always enjoyed listening to him speak. This is a great loss for the entire community especially the children and elderly that he served as their number one advocate. My prayers are with the Lewis family during their time of need. God Bless you all.
With Respect, A CC Social Worker

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Posted by 710237 on October 25, 2008 at 5:51 p.m.

Like everyone else, I am in shock.

I got to meet him during my stint with Leadership Corpus Christi and thought he was bright with a great sense of humor.

My prayers and condolences to his entire family and to those who will mourn him. I know he's in heaven. May he rest in peace with God and God's angels where he will give praise to the Almighty in perpetuity.

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Posted by 360222 on October 25, 2008 at 6:19 p.m.

This is such a terrible loss. Carl is as great a friend, role model, and bandmate as you could ever hope for. In all the years of playing together, I never heard a negative word out of his mouth. The band is in shock.

Dave

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Posted by 273890 on October 25, 2008 at 6:21 p.m.

The Honorable Judge Carl E. Lewis will be missed. The community has lost a strong advocate for children; heaven has gained one. God bless Judge Lewis and may God be with your family during this time.

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Posted by 309961 on October 25, 2008 at 6:41 p.m.

We'll miss you, Judge Lewis! Can you sing the blues in Heaven?

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Posted by 700294 on October 25, 2008 at 7:25 p.m.

Billy Joel said/sang it best "Only the Good Die Young"

This Judge was a class act and a nice guy. He was an unbelievable example to all kids that come from meager backgrounds. Look what he accomplished in his short life. He will be missed. I will pray for his family.

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Posted by 233106 on October 25, 2008 at 8:06 p.m.

We as a community have all suffered a terrible blow.

He was an excellent man and I mourn his loss.

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Posted by 714342 on October 25, 2008 at 8:18 p.m.

This is devastating news, Carl Lewis was an honorable, knowledgeable, just, fair and caring person who will be sorely missed. My condolences to his family.

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Posted by 298842 on October 25, 2008 at 8:43 p.m.

Prayers for his family.
I am so very sorry to hear of his passing.
The community has lost a great man.

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Posted by 250098 on October 25, 2008 at 9:37 p.m.

This is a terrible loss to the community.
It is nice to see all coming together to mourn this loss.
My prayers are with the family and the community.

G. Orwell

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Posted by 713027 on October 25, 2008 at 10 p.m.

God Bless Judge Lewis and family

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Posted by 253755 on October 25, 2008 at 11:04 p.m.

I am so sorry to hear he has passed away. Prayers for his family.

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Posted by 700159 on October 26, 2008 at 12:28 a.m.

My prayers for his family. I know how tough it is to lose someone you love. God Bless.

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Posted by 277971 on October 26, 2008 at 1:15 a.m.

Judge Lewis never let his position go to his head. He was compassionate and respectful. He looked for the good in people and tried to make them better. His family should know that he truly was a great man. It will be impossible to replace such a decent human being. He stayed the consumate gentleman even in the toughest of cases before him. He was what a judge should be.

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Posted by 712812 on October 26, 2008 at 1:26 a.m.

my condolences to the family of Judge Lewis. may God help you in your time of need.

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Posted by 401467 on October 26, 2008 at 4:31 a.m.

All the judges in Nueces County should have the temperament of Judge Lewis. He respected all people in his court. I had a civil case in his court representing a Mexican American in a dispute against a black woman. Color was not an issue. He was fair to both and the result was justice. Great man.

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Posted by 239291 on October 26, 2008 at 6:20 a.m.

This is a huge blow to our CC family; especially for the at-risk youth of our community who were looked at by Judge Lewis as never being beyond salvageability.

Carl Lewis was one of the kindest men I have ever known and never wore his position on his sleeve like so many other elected officials. In short, he was a beautifully humble human being who always looked for the good in everyone.

Condolences to all of his family and close friends from the entire membership of the Bikers For Christ Southwest Texas Chapter. May you all have peace at this time knowing that Carl is now, and forever more, in the presence of "The Lord."

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Posted by 382445 on October 26, 2008 at 8:44 a.m.

As a young prosecutor he gave me a break. Its been 26 years and I have never even come close to breaking the law again. RIP Carl Lewis, and thank you for what you did for me!

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Posted by 287001 on October 26, 2008 at 8:46 a.m.

Bye Carl. You will be missed.

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Posted by 705090 on October 26, 2008 at 9:22 a.m.

This is a crushing loss for Judge Lewis' family, and for the citizens of Corpus Christi. In a judicial system fraught with problems, Judge Lewis was a bastion of fairness, logic and sound judgment.

Our hearts are with the sweet soul of Judge Lewis and his loved ones. May his life and accomplishments be celebrated and emulated!

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Posted by 245928 on October 26, 2008 at 9:25 a.m.

in response to 360222

Hi Dave ... you guys are burning CDs for everyone, right? The turn-out is gonna be HUGE. God bless.

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Posted by 713008 on October 26, 2008 at 9:43 a.m.

Dear Carl...I will miss you..Lori

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Posted by 237538 on October 26, 2008 at 10:39 a.m.

This mornings news about Carl's death was a shock. I moved away from Corpus sometime ago but Carl was the one you knew was Corpus Christi! A man that you knew was honorable, sincere, and a true gentleman.
Because I worked in a field that was either dealing with Carl as a prosecutor, as a defense attorney, or later as a judge..you knew that he was honest and fair and expected the same from you. He did bring the best out of people.
God Bless him; God speed Carl...and God Bless his family.

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Posted by 321999 on October 26, 2008 at 11:20 a.m.

i had the honor of being in his court room, one of them was for my son,whom he recommended time in juvenile,in which judge lewis was fair, on the other i was back in his court room for my grandsons, in which he awarded me custody, two totally different cases yet he always was fair and honest and very caring,i know that whomever takes his caseload will never ever be able to compare to judge lewis but i do hope that his spirit will always be with the people of the community .HE WILL BE MISSED DEARLY!!!!!!!!!!!!!!!!!!!!!!!!!!!!! I PRAY FOR THE FAMILY IN THIER TIME OF NEED

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Posted by 351545 on October 26, 2008 at 11:56 a.m.

There are no words that can express the loss of a "Honorable & Hearted' gentleman who has not only set an example to what a
"Great Humanitarian Judge" should be to any community on this Earth.

I had the priviledge to be part of the actor's of the harbor play house in 1997 to where our Honorable Judge Mr. Carl Lewis
was part of the "Grid Iron Show", the play "The Whole Damn Story" where Mr. Lewis had a part as I played several parts and It was a true experience to see Mr. Lewis on stage where a sell out crowd saw & heard Mr. Lewis. That was the last time I had the special encounter with Mr lewis.

When you met Mr. Lewis he always had that unique smile and that twinkle in his eye's with a warm hand shake that wasn't a fake but
true. This world has lost a "Great Man" who is the "Mentor Of Men" and I know that he'll be hard to replace period. May God & Jesus Bless him and his family. Thank You Mr. Lewis for sharing. caring, & teaching us your "Gift" to life on this Earth!

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Posted by 246926 on October 26, 2008 at 12:05 p.m.

I was stunned and shocked to hear the news. Unbelievable because of his energy and dedication.

My deepest sympathies for the kids and Mom and brothers and sisters, and others in the family. So sad for you all and your tremendous loss.

God bless him, and you all, and our dear city. What a loss for us all.

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Posted by 231171 on October 26, 2008 at 12:41 p.m.

God Bless the wonderful Judge Lewis and his family. He was an amazing person. What a shock, what a loss! RIP, sir.

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Posted by 263283 on October 26, 2008 at 12:53 p.m.

I was stunned, what a loss, this was a wonderful man and a kind person. I worked with him in 1990, and I have so much respect for him.

Rest well Brother

Sgt. Lee

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Posted by 234095 on October 26, 2008 at 1:19 p.m.

I am a young CPS worker here in Nueces County. I have had the honor of working with Judge Lewis on numerous occasions in my career, and I am deeply saddened by this news. I can only hope, and pray, that whomever is to take over his caseload try their absolute best to be as fair, understanding, and hopeful as Carl was in his orders. I had no idea I would be so impacted by his death, mostly because I never thought of it happening. Judge Lewis, I make this promise to you: from this moment on I will strive to be the very BEST caseworker that I can, I will strive to be fair and just to people from ALL walks of life, and I can only hope to one day measure up to half the CHAMPION that you have been for children. God Bless you and thank you for your service to our community.

~~~

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Posted by 712918 on October 26, 2008 at 2:10 p.m.

My condolences to the Lewis Family. Worked with Judge Carl Lewis on a frequent basis and he had a great sense of humor. He was a very talented man and I loved to hear him sing-especially the lullaby he said his father sang to him. If anyone knows the name of the song, could you please post it. He will be missed, but he is in a much better place. May God Bless him and his family.

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Posted by 708526 on October 26, 2008 at 2:57 p.m.

Reading this headline on the Caller-Times' front page has thrown my day into a serious funk.

I had the privilege of playing bass for the Carl Lewis & The Deadbeats for a few years, and it was always a lot of fun, thanks to Carl's antics. Many times practices would get sidelined as we held deep conversations on Dave's back porch.

I think I'll bust out the old Wilson Pickett records in Carl's honor. Maybe that will cheer me up.

My condolences to the Lewis family. The entire city of Corpus Christi shares your grief.

JLB

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Posted by 714247 on October 26, 2008 at 4:17 p.m.

Judge Lewis was a great man. He was tough on the scumbag youth...you know the "babies having babies" types who did a p-poor job of taking care of their children. He was tough on juveniles who broke the law and didn't go to school and follow the rules. He was tough on parents who wouldn't or couldn't control their deliquent teenagers.

God help this city now that he is gone. May he rest in peace and God bless his family.

God help Corpus Christi, Texas, that the next judge to sit at his heavily burdened bench protects the innocent, punishes the guilty and sees through any and all lies of the teenage, drug addict scum who make promises they won't keep just to get out of jail.

Judge Lewis you will be truly truly missed.

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Posted by 246278 on October 26, 2008 at 4:29 p.m.

Major, major loss. Judge Carl Lewis was one of the best judges to ever sit in Nueces County. In the field of juvenile law, he was a master. He was especially good at untangling the most complex human situations frequently presented in the cases that came before him. He had a natural ability to sense the best course of action that would benefit both the child and society. He was fair and evenhanded. He permitted the parties to fully present their cases. He had no agenda except to the make the right decision in each case.

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Posted by 714706 on October 26, 2008 at 5:30 p.m.

Whoever takes over for him will have a mighty big pair of shoes to fill. My great respect for Judge Lewis, and prayers for the family and friends.

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Posted by 703142 on October 26, 2008 at 6:09 p.m.

I too, am a CC social worker who had the honor of meeting Mr. Lewis. What a generous and compassionate man whose love for the community was well known throughout the City of Corpus Christi.
You will be truly missed and to the family of Mr. Lewis: Be assured this man is an angel in heaven.
God Bless!

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Posted by 273452 on October 26, 2008 at 6:30 p.m.

Carl Lewis Blvd., Carl Lewis High School, Carl Lewis Bldg., Carl Lewis Juvenile Bldg. Pls post your suggestion. This great man consistently championed for the people, genuinely caring, honest, dedicated, fair and impartial, never condescending. Many of us were touched by this gentleman's presence and actions. May his philosophy never be forgotten, an inspiration to this entire area. Condolences to his family. Rest in Peace, sir.

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Posted by 233198 on October 26, 2008 at 7:25 p.m.

Judge Lewis was an awesome man with great character and honor. He will truly be missed and truly impacted all of those around him.

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Posted by 257518 on October 26, 2008 at 7:52 p.m.

If the CCISD proposition 1 passes, why not have a Carl Lewis Elementary? That way, his legacy will live on with children.

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Posted by 291718 on October 26, 2008 at 9:39 p.m.

I just hope he made it into heaven,if he believed in Christ Jesus and followed his commandments than heaven is for him and family members who do the same will see him again...For we all must die and our real life begans where there are two homes,,one of peace and one of weeping ...let us choose the one of peace. This is a true saying.

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Posted by 233517 on October 26, 2008 at 10:18 p.m.

I like the idea of the Carl Lewis Juvenile Center, but also Carl Lewis Elementary would be a great tribute as well.
He was truly a good man.

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Posted by 233750 on October 26, 2008 at 10:26 p.m.

My condolences to the family. I just got back in from out of town and heard of Carl's passing on the 10 p.m. news. What a great loss to us all.

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Posted by 709429 on October 27, 2008 at 12:16 a.m.

My condolences to this wonderful man's family, we were just in his court room trying to get my sister's child a few days earlier the same week he passed on , and he did grant the child be returned to her mother ( my sister ) God Bless him, this is something we will never in our life forget that he made a wish and dream for this child to happen, God bless him and have him by his side up in heaven where Judge Lewis will still keep an eye out for the children of our city, Rest in Peace Judge, we will miss you down here on earth.

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Posted by 699733 on October 27, 2008 at 7:39 a.m.

in response to 273452

Beautifully said. I could have not said it any better. His family must have been very proud of him as he touched so many hearts. He lived down the street from me and everytime I was outside and if would pass by, he would always wave. It would be nice to have something named after him. A school, the juvenile center, a street, something in his name. He would have liked that. May he rest in peace.

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Posted by 285062 on October 27, 2008 at 8:19 a.m.

My prayers go out to the family of Judge Carl Lewis. May God's mercy and grace help substain his family during this time of loss. May his soul rest in peace.

I worked with him in 1972 and 1973 when he worked for HIALCO. Even then he was working to help minority people.

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Posted by 285062 on October 27, 2008 at 8:27 a.m.

Corpus Christi Caller Times, you are always true to form. Tell me why the doctor's, who is being charged with Medicaid fraud, article was so much more than the article written for Judge Carl E. Lewis??

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Posted by 250459 on October 27, 2008 at 8:33 a.m.

Judge Lewis was a remarkable man who made a significant contribution to mankind. His departure from this world will leave a significant void that will be difficult to fill.

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Posted by 254647 on October 27, 2008 at 9:25 a.m.

Indeed! The community suffered a big blow b/c of Judge Lewis' passing. It was interesting to see his natural intuition of seeing into the lives of the at-risk youth. Sometimes he'd make a decision and it wasn't until later when you realized why he did it. The man was awesome.

Peace out your Honor!

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Posted by 436131 on October 27, 2008 at 10:19 a.m.

in response to 714706

I agree with you. Who ever runs for this seat, will always be in Judge Lewis' shadow and will be watched like a hawk. I hope they will be prepared. God Bless his family and friends. May he rest in peace.

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Posted by 714079 on October 27, 2008 at 12:30 p.m.

Carl Lewis was a wonderful person on and off the bench. Thank You for having trust and believing in our children.GOD BLESS YOU NAD YOUR FAMILY.....

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Posted by 715239 on October 27, 2008 at 4:31 p.m.

GOD BLESS HIS FAMILY AND MAY HIS LOVING ARMS BE AROUND HIS FAMILY DURING THIS TIME OF LOST.
HE WAS A GREAT JUDGE AND I AM SURE HE WAS A GREAT PERSON ALL AROUND.

SINCERELY,

THE VILLAGRANS OF VICTORIA, TX

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Posted by 715257 on October 28, 2008 at 10:10 a.m.

In 1972 and 1973, I had the great honor of playing behind Carl as he starred at cornerback at Yale, at a meager 145 lbs.
His teammates loved him deeply and voted him our MVP his senior year. What one remembers about him is not his exploits on the field, although great, but his quiet confidence, discipline, and the honorable way he carried himself. We all admired him greatly and strove to emulate him. I lost track of Carl over the years, but heard he was doing well. Learning more now, I continue to be in awe of him and what Judge Lewis achieved in his career and in the community. My best to his family, he was an inspiration to me.

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Posted by 249612 on October 30, 2008 at 1:42 a.m.

Truly honorable man. May his legacy live on. I will truly miss him. He was honorable in whatever role he carried. It is rare to meet a man of this caliber in Corpus Christi, especially a black man. Judge Lewis rest in peace. Many thanks for all that you have done for our youth.

United States Constitution~ Ever heard of it? I wonder has CCISD? Try teaching it.......

2008-03-12T22:03:00.000-07:00

Main article: United States Bill of Rights

Wikisource has original text related to this article:

United States Bill of Rights

United States Bill of Rights currently housed in the National Archives.

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were adopted between 1789 and 1791, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights became part of the Constitution.

It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the first amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

“

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

”

The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792, during that commonwealth's first month of statehood.

First Amendment: addresses the rights of freedom of religion (prohibiting Congressional establishment of a religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.

Second Amendment: declares "a well regulated militia" as "necessary to the security of a free State", and as explanation for prohibiting infringement of "the right of the People to keep and bear arms."

Third Amendment: prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The only existing case law regarding this amendment is a lower court decision in the case of Engblom v. Carey. ^[19]

Fourth Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.

Fifth Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against themself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment. It also prohibits government from taking private property without "just compensation," the basis of eminent domain in the United States.

Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.

Seventh Amendment: assures trial by jury in civil cases.
Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment.
Ninth Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.
Tenth Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the states from exercising, are "reserved to the States respectively, or to the people."

in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare....

2008-01-21T23:47:00.000-08:00

Constitution of the United States of America

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article. I.
Section. 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article. II.
Section. 1.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, "the," being interlined between the seventh and eighth Lines of the first Page, the Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page.

Attest William Jackson Secretary

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

[Names of signers]

THE FIRST 10 AMENDMENTS TO THE CONSTITUTION AS RATIFIED BY THE STATES
(The Bill of Rights)

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not
be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the
common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.

Amendments 11-27

Amendment XI

Passed by Congress March 4, 1794. Ratified February 7, 1795.

Note: Article III, section 2, of the Constitution was modified by amendment 11.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Amendment XII

Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the
highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

*Superseded by section 3 of the 20th amendment.

Amendment XIII

Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this article by appropriate legislation.

Amendment XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

Amendment XV

Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.

Amendment XVI

Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Amendment XVII

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Amendment XVIII

Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1.
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XIX

Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment XX

Passed by Congress March 2, 1932. Ratified January 23, 1933.

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

Section 1.
The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.
Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Amendment XXI

Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XXII

Passed by Congress March 21, 1947. Ratified February 27, 1951.

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment XXIII

Passed by Congress June 16, 1960. Ratified March 29, 1961.

Section 1.
The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXIV

Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXV

Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the
President shall resume the powers and duties of his office.

Amendment XXVI

Passed by Congress March 23, 1971. Ratified July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXVII

Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Exploring Constitutional Conflicts

Kind of like the doctrine for legally trained animals bury court’s ability/ prerogative to assess ~~what is "genuine"?

2007-11-12T22:56:00.000-08:00

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December 2003
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The Sham Affidavit Doctrine in Texas

By Judge Randy Wilson
Illustration by Gilberto Sauceda

You are defending a lawsuit and have just finished deposing the plaintiff. You feel smug because the plaintiff made a fatal admission to his case during the deposition. You immediately begin preparing your motion for summary judgment and confidently advise your client that, because of your brilliant deposition, summary judgment for defendant is all but assured. After you file the summary judgment motion, you put it out of your mind because victory seems certain. Imagine your surprise when, a week before the summary judgment hearing, the plaintiff files his response and includes an affidavit recanting his prior position at his deposition and swearing, for the first time, to completely new and different facts. What can you do about a summary judgment affidavit that contradicts previous deposition testimony?

Texas courts have wrestled for some years with the question of whether a fact issue is presented by submitting an affidavit that conflicts with previous deposition testimony. Unfortunately, there is a split in the cases, not only among the various courts of appeals, but also between some of the courts of appeals and the Texas Supreme Court.

The Texas Supreme Court Standard
The Texas Supreme Court first confronted the issue of a conflict between a deposition and an affidavit in 1962 in Gaines v. Hamman.(1) There, the plaintiff first testified in deposition that he had no express contract with the defendant. Later, in response to a motion for summary judgment, the plaintiff swore that such a contract existed. Of course, at the summary judgment stage, the issue is whether “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”(2) The court in Gaines held that “there is no basis for giving controlling effect to a deposition as compared to an affidavit.”(3) So long as the affidavit meets the usual requirements of personal knowledge and is not conclusory, then the mere fact that a deposition is more detailed than an affidavit does not “vest it with dominant authority.”(4)

Most recently, in 1988, the Supreme Court reaffirmed Gaines in Randall v. Dallas Power & Light Co.(5) The court once again held that “if conflicting inferences may be drawn from a deposition and from an affidavit filed by the same party in opposition to a motion for summary judgment, a fact issue is presented”(6) and summary judgment should be denied.

The Sham Affidavit Doctrine In Federal Court and Elsewhere
Shortly after the Texas Supreme Court opinion in Gaines, the federal courts began considering the issue of conflicts between an affidavit and the affiant’s deposition.(7) The sham affidavit doctrine is usually traced to the Second Circuit opinion in Perma Research & Dev. Co. v. Singer Co.(8) There the Second Circuit held that the trial court was permitted to disregard an affidavit that conflicted with prior deposition testimony:

If there is any dispute as to the material facts, it is only because of inconsistent statements made by Perrino the deponent and Perrino the affiant. … If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”(9)

The last four words of the opinion thus gave birth to what has come to be known as the sham affidavit doctrine, i.e., a trial court can disregard an affidavit that offsets the affiant’s prior deposition testimony where the contradiction is unexplained and unqualified by the affiant. Following Perma Research, the federal circuits that have considered the sham affidavit doctrine have adopted it in one form or another.(10)

An offsetting affidavit should not be ignored in all circumstances, however. At least two exceptions have developed. First, a party is permitted to introduce an offsetting affidavit if he can demonstrate he was confused by the questions during the deposition.(11) For example, in Ramos v. Geddes,(12) plaintiff’s expert testified in deposition that someone did not violate the standard of care, but there was confusion as to the identify of the person referred to. Subsequently, the expert provided an arguably contrary affidavit concerning the standard of care. On these facts, Judge Kazen concluded that legitimate confusion existed and permitted the affidavit.(13)

The second exception arises when the affiant discovers new evidence that was not available during the deposition.(14) This exception is generally well acknowledged and recognized.(15)

Additionally, the sham affidavit doctrine is generally well recognized in most states.(16) Some states, however, hold, as the Texas Supreme Court held in Randall, that a trial court is obliged to consider all evidence in opposition to a motion for summary judgment, including an affidavit that contradicts a prior deposition.(17)

Sham Affidavits in Texas
The First Court of Appeals in Houston was the first court in Texas to adopt the sham affidavit doctrine. In Farroux v. Denny’s Restaurants, Inc.,(18) the plaintiff alleged that he got food poisoning from eating a Grand Slam breakfast from Denny’s. In deposition, the plaintiff admitted that his personal physician told him that there were too many possibilities to determine whether the Denny’s food caused his illness and that no physician ever told him that the Denny’s breakfast caused any of his health problems. In response to Denny’s’ motion for summary judgment, the plaintiff submitted an affidavit stating that his physician told him his food poisoning was the result of the Denny’s meal.

Confronted with such conflicting evidence, the First Court of Appeals concluded that the affidavit was a sham and could be disregarded.(19) Specifically, the Court held:

A party cannot file an affidavit to contradict his own deposition testimony without any explanation for the change in the testimony, for the purpose of creating a fact issue to avoid summary judgment. If a party’s own affidavit contradicts his earlier testimony, the affidavit must explain the reason for the change. Without an explanation of the change in the testimony, we assume the sole purpose of the affidavit was to avoid summary judgment. As such, it presents merely a “sham” fact issue.(20)

The court noted the two often-cited exceptions to the sham affidavit rule, i.e., “an affiant could explain that he was confused in a deposition, or that he discovered additional, relevant materials after the deposition.”(21)

Significantly, the Farroux court cited only one federal court decision to support its opinion(22) and failed even to mention the Texas Supreme Court decisions of Gaines and Randall that are directly on point and contrary to Farroux.

Following the Farroux decision, many of the courts of appeals have similarly adopted the sham affidavit doctrine. Thus far, the courts of appeals of El Paso,(23) Amarillo(24) Austin(25) Texarkana(26) and Houston (14th District)(27) have cited Farroux with approval and adopted the sham affidavit doctrine.

The San Antonio Court of Appeals surveyed the various decisions including the Supreme Court decision in Randall, which it characterized as “the most tolerant view of conflicting statements between the same witness’s testimony in a deposition and affidavit.”(28) After contrasting Randall with Farroux, the court observed “most differences between a witness’s affidavit and deposition are more a matter of degree and details than direct contradiction. This reflects human inaccuracy more than fraud.”(29) After reviewing the different lines of cases, the court held:

We conclude that a court must examine the nature and extent of the differences in the facts asserted in the deposition and the affidavit. If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances of detail, this is grounds for impeachment, and not a vitiation of the later filed document. If, on the other hand, the subsequent affidavit clearly contradicts the witness’s earlier testimony involving the suit’s material points, without explanation, the affidavit must be disregarded and will not defeat the motion for summary judgment.(30)

After reviewing the record, the court concluded that any differences between the affidavit and the deposition were minor and could not be characterized as a sham.(31)

In contrast to Farroux and the courts that have followed that decision, the Waco(32) and Corpus Christi(33) courts have flatly rejected the doctrine and have adhered to the Supreme Court’s decision in Randall. Similarly, both the Dallas and Fort Worth Courts of Appeals appear to follow Randall.(34) In Thompson v. City of Corsicana Housing Auth.,(35) the Waco court criticized Farroux for relying on federal authorities for creating the sham affidavit doctrine in Texas, noting that the Supreme Court has expressly disavowed the application of federal procedural standards to summary judgment motions filed under Rule 166a.(36) The court determined it would adhere to its previous position(37) and ruled, “if a party provides inconsistent or conflicting summary judgment proof, that party has created a fact issue for the trier of fact to resolve.”(38) As a result, if the resolution of a summary judgment depends on the credibility of affiants or deponents, then “the motion should not be granted.”(39) The court recognized that its ruling could permit an unscrupulous party to create a sham fact question to defeat summary judgment by filing false affidavits. However, the court should rely on the attorneys as officers of the court to be candid with the court.(40) If an attorney fails to observe his ethical obligations, then sanctions can be imposed on the attorney(41) or the party.(42) The Corpus Christi Court of Appeals followed Thompson and concluded, “any inconsistency or conflict between a party’s deposition and affidavit is not a reason to exclude that evidence in a summary judgment proceeding.”(43) As a result, if a trial court excludes an affidavit based on an alleged inconsistency with a deposition, the court ruled that the trial court abuses its discretion.(44)

Authority of Courts to Disregard Offsetting Affidavits
Courts that disagree with the sham affidavit doctrine usually argue that a court is precluded under the summary judgment rules from making a determination of the credibility of the witnesses. Specifically, both the federal and Texas rules preclude a court from weighing a witness’ credibility at the summary judgment stage.(45) “The trial court’s duty is to determine if there are any fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits.”(46) Thus, the argument goes, if a court gives preference to a deposition and disregards a conflicting affidavit, the court is necessarily making an impermissible credibility determination.(47)

Courts that have approved the sham affidavit doctrine, however, have concluded that sham affidavits do not truly raise issues of credibility because the affidavit is precluded from the witnesses’ previous unambiguous admissions.(48) The court is not weighing the credibility of two different witnesses. Rather, the court is ignoring an impermissible affidavit because it was fraudulently filed.

Ironically, both opponents and proponents of the sham affidavit doctrine point to Rule 166a of the Texas Rules of Civil Procedure to support their respective positions. Opponents of the doctrine argue that Rule 166a(h) only empowers a court to impose sanctions for filing an affidavit “in bad faith or solely for the purposes of delay.”(49) The San Antonio Court of Appeals noted:

While this section [166a] provides penalties for the making of affidavits in bad faith, the striking of the offending affidavit or pleading is not made one of them. We think it rather apparent that the trial judge was of the opinion that appellants were evasive and equivocal of statement and were trifling with the court by raising frivolous and groundless defenses. But such conclusions necessarily involve fact questions relating to the credibility of witnesses, which under our system of jurisprudence must be determined by a jury (when demanded) in actions to determine civil liability.(50)

Proponents of the sham affidavit doctrine, however, also point to the language of Rule 166a to support their argument that a court is empowered to ignore an affidavit submitted in bad faith. By its very terms, Rule 166a(c) authorizes a summary judgment when “there is no genuine issue of material fact.”(51) By ignoring an affidavit submitted in bad faith, the court is making a determination that the fact dispute is not genuine, a determination that is expressly permitted by the rule. Commenting on the virtually identical federal rule, the Seventh Circuit observed:

Federal Rule of Civil Procedure 56 empowers a court to make a threshold determination of whether a factual issue is “genuine.” This power does not emanate from the court’s role as a fact-finder, a role which lays dormant during the summary judgment process. Rather, this power emanates from a court’s ability to make an initial assessment of any evidence. A district court exercises its prerogative to assess evidence at trial by determining whether any evidence is admissible. The court is not acting as a fact-finder when it makes such determinations. A district court also exercises its prerogative to assess evidence at the summary judgment stage by determining whether an alleged factual conflict is “genuine.”(52)

Where Do We Go From Here?

The Texas courts of appeals have gotten ahead of the Supreme Court on the issue of conflicts between summary judgment affidavits and depositions. More than 15 years have elapsed since the Texas Supreme Court has addressed the question of the so-called sham affidavit. Since that time, the federal courts have fully developed the sham affidavit doctrine and many of the Texas intermediate courts have followed suit. However, a strange split of authority has developed within the Texas state court decisions. Not only are the various Texas courts of appeals split on sham affidavits, but at least six of the courts of appeals seem to conflict with prior Supreme Court authority. The Supreme Court needs to weigh in and clarify the issue.

Summary judgments are intended to provide a useful tool to narrow issues and screen cases that have no merit as a matter of law. If legitimate summary judgments can be defeated by simply filing an affidavit, regardless of the truth of the facts contained in the affidavit, the summary judgment rules in Texas would be thwarted. Trial courts in Texas need to have the ability to disregard an affidavit submitted in bad faith solely for the purpose of defeating a motion for summary judgment.
Notes

1. 163 Tex. 618, 358 S.W.2d 557 (1962).

2. Tex. R. Civ. P. 166a(c).

3. 358 S.W.2d at 562.

4. Id.

5. 752 S.W.2d 4 (Tex. 1988).

6. Id. at 5.

7. The history of the sham affidavit cases is fully explored in Collin J. Fox, Reconsidering the Sham Affidavit Doctrine, 50 Duke L.J. (2000).

8. 410 F.2d 572 (2d Cir. 1969).

9. Id. at 578.

10. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994); Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984); Reid v. Sears Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986); Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir. 1994); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir. 1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986); Van T. Junkins & Assocs. v. U.S. Indus. Inc., 736 F.2d 656, 657-59 (11th Cir. 1984); Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed. Cir. 1992), cert. denied, 508 U.S. 912 (1993).

11. Kennett-Murry Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980). See also RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399 (8th Cir. 1995).

12. 137 F.R.D. 11 (S.D. Tex. 1991).

13. Id. at 12.

14. Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 520 (7th Cir. 1988).

15. 50 Duke L.J. at 288.

16. See Shelcusky v. Algarjulio, 172 N.J. 185, 797 A.2d 138 (2002), for a detailed discussion of the states that recognize the doctrine. See Robinson v. Hank Roberts, Inc., 514 So.2d 958, 961 (Ala. 1987); Wright v. Hills, 161 Ariz. 583, 780 P.2d 416, 420-21 (Ariz. Ct. App. 1989), abrogated on other grounds, James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing and Fire Prot., 177 Ariz. 316, 868 P.2d 329 (Ariz. Ct. App. 1994); Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586, 589-90 (1995); Nutt v. A.C. & S. Co., 517 A.2d 690, 693 (Del. Super. Ct. 1986); Hancock v. Bureau of Nat’l Affairs, Inc., 645 A.2d 588, 590-91 (D.C. App. 1994); Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069, 1070 (Fla.Dist.Ct.App. 1977); Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210, 211 (1981); Tolmie Farms, Inc. v. J.R. Simplot Co., 124 Idaho 607, 862 P.2d 299, 302 (1993); Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 71 Ill.App.3d 562, 28 Ill. Dec. 78, 390 N.E.2d 60, 64 (1979); Gaboury v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind. 1983); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 352 (1983); Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 735- 736 (Ky. 2000); Guenard v. Burke, 387 Mass. 802, 443 N.E.2d 892, 898 (1982); Zip Lube, Inc. v. Coastal Sav. Bank, 709 A.2d 733, 735 (Me. 1998); Gamet v. Jenks, 38 Mich. App. 719, 197 N.W.2d 160, 164 (1972); Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 541 n. 4 (Minn. 2001); Wright v. State, 577 So.2d 387, 390 (Miss. 1991); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 388 (Mo. 1993); Rivera v. Trujillo, 128 N.M. 106, 990 P.2d 219, 221-22 (N.M. Ct. App.), cert. denied, 128 N.M. 148, 990 P.2d 822 (1999); Greene v. Osterhoudt, 251 A.D.2d 786, 673 N.Y.S.2d 272, 274 (N.Y. App. Div. 1998); Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 732-33 (1978), aff’d, 297 N.C. 696, 256 S.E.2d 688 (1979); Delzer v. United Bank of Bismarck, 484 N.W.2d 502, 508 (N.D. 1992); Buckeye Federal Sav. and Loan Assoc. v. Cole, 1986 WL 13274 at *2 (Ohio Ct. App. Nov. 24, 1986); Henderson-Rubio v. May Dep’t Stores Co., 53 Or. App. 575, 632 P.2d 1289, 1294-95 (1981); Price v. Becker, 812 S.W.2d 597, 598 (Tenn. Ct. App.), appeal denied (Tenn. 1991); Webster v. Sill, 675 P.2d 1170, 1172-73 (Utah 1983); Marshall v. AC & S, Inc., 56 Wash. App. 181, 782 P.2d 1107, 1109-10 (1989); Yahnke v. Carson, 236 Wis.2d 257, 613 N.W.2d 102, 108-09 (2000); Morris v. Smith, 837 P.2d 679, 684-85 (Wyo. 1992).

17. See Junkins v. Slender Woman, Inc., 386 N.E.2d 789, 790 (Mass. App. Ct. 1979); Stefan v. White, 257 N.E.2d 206, 208-09 (Mich. App. Ct. 1977); Delzer v. United Bank, 484 N.W.2d 502, 508 (N.D. 1992).

18. 962 S.W.2d 108 (Tex. App. — Houston [1st Dist.] 1997, no pet.).

19. Id. at 111.

20. Id.

21. Id. at 111 n. 1.

22. Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7th Cir. 1996).

23. Morgan v. Straub, 2001 WL 925760 (Tex. App. — El Paso 2001).

24. Trostle v. Trostle, 77 S.W.3d 908 (Tex. App. — Amarillo 2002, no pet.).

25. Elson Thermoplastics v. Dynamic Systems, 49 S.W.3d 891 (Tex. App. — Austin 2001, no pet.).

26. Burkett v. Welborn, 42 S.W.3d 282 (Tex. App. — Texarkana 2001, no pet.).

27. Blan v. Ali, 7 S.W.3d 741, 746 n.3 (Tex. App. — Houston [14th Dist.] 1999, no pet.)(“while we agree that Farroux [cite] precludes the trial court from considering an affidavit that contradicts deposition testimony without an explanation for the change in testimony, the supplemental affidavit does not contradict Dr. Reisbord’s deposition testimony”).

28. Cantu v. Preacher, 53 S.W.3d 5, 9 (Tex. App. — San Antonio, 2001, pet. denied)

29. Id. at 10.

30. Id.

31. Id. at 11.

32. Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547 (Tex. App. — Waco 2001, no pet.).

33. Larson v. Family Violence & Sexual Assault Prevention Center of South Texas, 64 S.W.3d 506, 513 (Tex. App. — Corpus Christi 2001, pet. denied).

34. Belmonte v. Baxter Healthcare Corp., 2002 WL 560996, *2 (Tex. App. — Dallas April 16, 2002) (NO. 05-00-01579-CV)(not designated for publication); Sigler v. Durbec, 2001 WL 432620, *4 (Tex. App. — Dallas April 30, 2001) (not designated for publication); Hale v. Pena, 991 S.W.2d 942, 947 (Tex. App. — Fort Worth 1999, no pet.).

35. 57 S.W.3d at 557.

36. Id., citing Casso v. Brand, 776 S.W.2d 551, 555 (Tex. 1989); City of Lancaster v. Chambers, 883 S.W.2d 650, 657 (Tex. 1994), Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 698 n.5 (Tex. App. — San Antonio 1997, no pet.).

37. Sosebee v. Hillcrest Baptist Med. Center, 8 S.W.3d 427 (Tex. App. — Waco, 1999, pet. Denied); see also Toliver v. Bergman, 297 S.W.2d 208 (Tex. Civ. App. — San Antonio 1956, no writ).

38. 57 S.W.3d at 557.

39. Id.

40. Id. at 558.

41. Id., citing Tex. R. Disciplinary P. 1.06(Q)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (Vernon 1998)

42. Tex. R. Civ. P. 166a(h).

43. Larson v. Family Violence & Sexual Assault Prevention Center of South Texas, 64 S.W.3d 506, 513 (Tex. App. — Corpus Christi 2001, pet. denied); See also Smith v. Mosbacker, 94 S.W.3d 292 (Tex. App. — Corpus Christi 2002, no pet.); Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex.App. — Corpus Christi 1997).

44. Id.

45. Green v. Unauthorized Practice of Law Committee, 883 S.W.2d 293 (Tex. App. — Dallas 1994).

46. Id. at 297. See also Dibidale of Louisiana, Inc. v. American Bank & Trust Co., 916 F.2d 300, 307-08 (5th Cir. 1990)(“[c]redibility assessments are not fit grist for the summary judgment mill”).

47. See Junkins v. Slender Woman, Inc., 386 N.E.2d 789 (Mass. App. Ct. 1979)(“[I]t is sufficient that the plaintiff’s later affidavit, if believed, indicated that the contrary is true. [cite] The conflict presents a question of credibility, which is not to be resolved by the judge on a motion for summary judgment”).

48. See 50 Duke L.J. at 279. See also Babrocky v. Jewel Food Co., 773 F.2d 857, 857 (7th Cir. 1985)(“Plaintiffs confuse credibility issues with the district court’s duty to ignore sham issues in determining the appropriateness of summary judgment. … Otherwise, the very purpose of the summary judgment motion — to weed out unfounded claims, specious denials, and sham defenses — would be severely undercut”).

49. Tex. R. Civ. P. 166a(h).

50. Toliver v. Bergmann, 297 S.W.2d 208, 210 (Tex. Civ. App. — San Antonio 1956, no writ). See also Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547, 557 (Tex. App. — Waco 2001); De Los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 755 (Tex. App. — San Antonio 1990, no writ).

51. Tex. R. Civ. P. 166a(c).

52. Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1212 (7th Cir. 1993).

Randy Wilson was appointed judge of the 157th District Court in Harris County in April 2003. He received his law degree from the University of Houston, summa cum laude, in 1977. He was previously a partner at Susman Godfrey from 1980 to 2003. Judge Wilson has been board certified in civil trial law since 1988.

table of contents

How to Reduce Prosecutorial Misconduct

2007-09-19T23:19:00.000-07:00

Copyright © 1998 by Carl E. Person

How to Reduce Prosecutorial Misconduct

Prosecutorial Misconduct Can Be Reduced, by Recognizing and Dealing with the Causes of Prosecutorial Misconduct

The apparent reasons for prosecutorial misconduct and abuse are set forth in another website article, Article Explaining Causes of Prosecutorial Misconduct.

One cause seems to be the increased concentration of the economy, which reduces political power of most citizens, and permits the wealthy to control government institutions, including the prosecutor's office. Decreasing concentration of the economy no longer seems possible with existing political institutions, which for the most part have been captured (purchased) by the wealthy.

Another cause is the lack of judicial or other oversight of the prosecutor's office. Inasmuch as the courts have failed to stop prosecutorial misconduct for reasons set forth in such other article, it would seem that some type of extra-judicial oversight could be tried, such as

* complaints to the local grievance committee, with all complaints to be heard publicly, to punish and discourage prosecutorial misconduct;
* complaints to a national body (perhaps a panel of judges or magistrate judges) to hear and resolve complaints against any federal prosecutor, to be handled by persons outside of the District and State in which the accused prosecutor has his/her office;
* automatic assignment of proceedings alleging prosecutorial misconduct to a district court in another state, more than 100 miles away;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to a legislative oversight committee of Congress;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to the American Civil Liberties Union or similar organization.
* Legislation eliminating grand jury secrecy requirements to accomodate the "sunshine" requirements set forth above.
* Use of this website as a meeting point for persons complaining about or interest in prosecutorial misconduct and prosecutorial abuse.
* Use of mailing list on internet and responsible bulk e-mail to inform the citizenry about prosecutorial abuse as it occurs, and how it such abuse is being dealt with by established institutions, such as the local judiciary.
* Obtain an e-mail list of all members of the Senate and House of Representatives and e mail your complaint to them, for their legislative assistants to consider; try to generate a congressional hearing in the Judiciary Committee of both houses to investigate the ongoing prosecutorial abuses, with the idea of writing and enacting curative legislation; [a problem exists in that various ISP's may not permit your mail to go through because such mailing would be called "spamming" or "spam", thereby giving these corporate dominators of internet the self-proclaimed right to stop your messages asking for help.
* Complain to the Department of Justice that its employees are failing to abide by the Standards of Conduct in the Department of Justice or the Model Code of Professional Responsibility which governs all attorneys in the United States.

Copyright © 1998 by Carl E. Person

How to Reduce Prosecutorial Misconduct

2007-09-19T23:16:00.000-07:00

If This application is dismissed as an abuse of the writ~then why a " Do Not Publish"?

2007-08-30T22:30:00.000-07:00

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-27,818-05

EX PARTE DAROYCE LAMONT MOSLEY

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 21,932-B FROM THE

124^TH DISTRICT COURT OF GREGG COUNTY

Per Curiam. keasler, j., not participating.

ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is actually innocent of the capital murder for which he was convicted and sentenced to death.

Applicant was convicted of capital murder on October 17, 1995. We affirmed the conviction and sentence on direct appeal. Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). On October 9, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. While that application was pending in the convicting court he filed an untimely supplement on December 14, 1998. We denied relief on his initial application and dismissed the untimely supplement as an abuse of the writ. Ex parte Mosley WR-27,818-02 & 27,818-03 (Tex. Crim. App. June 30, 1999). On August 20, 2007, applicant filed a second subsequent application, we again dismissed as an abuse of the writ. Ex parte Mosley, WR-27,818-04 (Tex. Crim. App. August 21, 2007).

At trial, on appeal, in his initial application and in his subsequent application for writ of habeas corpus, applicant raised the issue of his actual innocence; the claim was rejected each time. Applicant again raises the same issue, that he did not shoot any of the four victims who died or the fifth victim who survived. We have reviewed this application and find that it does not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5(a). This application is dismissed as an abuse of the writ; the motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 28^TH DAY OF AUGUST, 2007.

Do Not Publish

"We do know that children of incarcerated parents are five times more likely to be incarcerated themselves than their peers.

2007-07-31T00:46:00.000-07:00

Money Can Be Saved on Prisons Without Diminishing Public Safety, ACLU of Texas Tells Lawmakers (2/25/2003)

FOR IMMEDIATE RELEASE

AUSTIN, TX--In testimony today before the Texas House Corrections Committee, the American Civil Liberties Union of Texas said that the state's prisons have become too expensive because the system incarcerates too many non-violent offenders who should be home supporting their families.

"In recent years, Texas prison spending grew faster than spending on either healthcare or education," said Will Harrell, Executive Director of the ACLU of Texas.

"Today, one out of every 100 Texas adults is incarcerated in a state or local facility, and one in 20 is under some type of supervision of the criminal justice system," he added. "That's a higher ratio than any other state and most Third World countries, but it hasn't made us safer. Our crime rate has not declined as much as states that incarcerate significantly fewer people. We need to find a better way."

Harrell said that the revolving penitentiary door has been closed for violent criminals--and rightly so -- but now the pendulum has swung too far in the other direction.

Texas prisons are projected to overflow as early as next month. As lawmakers scramble to address this immediate crisis, few people are taking a step back to consider long-term solutions, the ACLU said.

In his testimony today, Harrell noted that Texas protects the public safety of its citizens when it incarcerates violent offenders, but with non-violent offenders, "we reach a point of diminishing returns when too many people are incarcerated; we continue to throw money at the situation by incarcerating the offender while no longer affecting public safety one way or the other."

Texas today faces its gravest budget crisis in decades, and some lawmakers are looking to Texas prisons for budget savings. If budget cuts must be made, 70 percent of Texans said in a recent poll that prisons should be cut before other priorities like healthcare, education and transportation.

"But clearly the cuts cannot come out of programs, like drug treatment and education, which actually help reduce crime over the long term," said Harrell. "Short-sighted approaches will quickly backfire."

Harrell said that few experts have examined the impact on families of incarcerating non-violent offenders. "We do know that children of incarcerated parents are five times more likely to be incarcerated themselves than their peers. Something must be done to break this cycle."

Many other states like Louisiana, Oklahoma, Kentucky, California, and Michigan recently reduced some drug-related and other non-violent prison sentences and saved money in their state budgets. Harrell said the budget crisis should compel legislators to look closely at how those other states went about saving money without jeopardizing public safety.

The ACLU believes that a considerable amount of money can be saved by reducing sentences for petty non-violent crimes. Texas should focus more on a fair and just system, alternatives to incarceration, and implementing family-focused probation requirements for non-violent offenders.

"When money is tight, we need to be not just tough, but tough and smart about how we deal with crime and punishment," said Harrell. "Texas cannot afford to pay for incarceration when there is no longer a corresponding improvement in public safety."

Public Policy run by WIA funding ~TYC contractors housing inmates have lost contracts,No changed their name......

2007-07-29T02:38:00.000-07:00

TYC contractors housing inmates have lost contracts, closed doors elsewhere

12:44 AM CDT on Sunday, July 29, 2007

By HOLLY BECKA and JENNIFER LaFLEUR / The Dallas Morning News
hbecka@dallasnews.com; jlafleur@dallasnews.com

Robert Schulze was scared. He threatened to harm himself unless he was moved to another youth prison location. He lost 23 pounds in two months.
[Click image for a larger version] LARA SOLT / DMN
LARA SOLT / DMN
Joanna Garza, 15, plays with her baby Arionna at WINGS for Life, a TYC mother-baby program run my a nonprofit that has faced multiple lawsuits nationwide.

None of that raised concerns at the Coke County Juvenile Justice Center, a sprawling private youth prison in West Texas run by the GEO Group Inc. Nurses there never gave Robert his prescribed antidepressants, and prison officials never put the 19-year-old inmate on suicide watch.

Ten days later, he hanged himself from the top bunk of his solitary cell.

Texas Youth Commission investigators presented a grim report on the prison's failings to Gov. Rick Perry and other state officials in February. They could have discovered even more disturbing details had they looked beyond Texas' borders.

A three-month Dallas Morning News investigation found that private contractors housing juvenile inmates in Texas repeatedly have lost contracts or shuttered operations in other states after investigators uncovered mismanagement, neglect and physical and sexual abuse.

In Colorado, a suicide finally prompted state officials to close a private youth prison that investigators said was plagued by violence and sexual abuse. In Arkansas, former employees of a private juvenile facility said inmates were shackled and left naked on the ground in sleeping bags. And in Michigan, a private contractor was sued for allegedly allowing mentally ill inmates to languish in solitary confinement.
Also Online

Texas' youth jail operators have troubled histories

GEO Group's facilities were closed in Louisiana, Michigan

Nonprofit is no stranger to scrutiny

Firm's leaders linked to problems

Resources:

Read the state auditor general's March 2007 report on TYC: Overall conclusion | Full report (.pdf)

GEO Group Inc.'s answers to The News' questions (.pdf)

Interactive graphic: Mistreatments at TYC contract facilities

Interactive graphic: Texas private contracts around the nation

Archive: Complete coverage of the Texas Youth Commission scandal

Last year, TYC spent nearly $17 million of its $249 million budget to do business with these and other private contractors. The agency houses about 450 young inmates with 13 private operators.

Legislative reforms passed in the wake of the TYC sex abuse scandal largely overlooked private contractors and focused instead on agency-run prisons.

"They are a much under-examined problem in the TYC system," said Scott Medlock, a prisoners' rights attorney for the Texas Civil Rights Project, which has filed a class-action lawsuit against TYC alleging widespread inmate abuse.

The News focused its investigation on three private contractors with the largest number of TYC inmates and high numbers of complaints – GEO Group, Cornerstone Programs Corp. and Associated Marine Institutes.

Those contractors have been dogged by problems in Texas strikingly similar to what led officials in other states to take action. Such problems include difficulties in attracting qualified employees, high turnover rates and inadequate care for inmates – sometimes with tragic consequences.

States that hire contractors with poor performance records "obviously have a very low regard for our children," said Isabelle Zehnder, director of the Coalition Against Institutionalized Child Abuse, a child advocacy organization in Washington state. "They're letting money or circumstances stand above children."
[Click image for a larger version] LARA SOLT / DMN
LARA SOLT / DMN
An inmate folds his clothes in his cell at Garza County Regional Juvenile Center in West Texas. The facility is operated by Cornerstone Programs Corp., which closed a Montana facility in 2006 after violations including neglect and failure to report child abuse were reported.

Many states use private companies to run adult and juvenile prisons. Contractors argue they are more innovative and can do the job cheaper. Texas' three largest private contractors acknowledge having some problems in the past, but insist they run good programs that help juvenile inmates. "No correctional facility, public or private, is immune to incidents that are inherent in the management of offender populations," said GEO spokesman Pablo Paez.

But Michele Deitch, an expert on prison privatization at the University of Texas at Austin, said research showed that privatization did not save money and that "private facilities tend to have many more problems in performance, such as higher levels of assaults, escapes, idleness."

TYC officials said they were reviewing the agency's policies on contractors but could not comment about changes under consideration. However, just days after detailed questioning by The News, TYC canceled bid requests for new contract facilities. Bidders included contractors currently operating facilities in Texas that had a history of problems in other states.
The vetting process

TYC first turned to contractors in 1974 to relieve overcrowding. Contract care facilities vary from group homes to large prisons, and over the years contractors have come to provide specialized services not available at TYC prisons, such as care for pregnant inmates.

TYC's executive director makes the final decision to hire a private contractor after a five-phase review process that includes checks on the contractor's ability to provide adequate medical care and educational and behavioral treatment.

Companies with contracts terminated in the last year "for deficiencies in performance" anywhere in the country are ineligible to bid. And, under a new policy enacted in March as the TYC sex abuse scandal unfolded, the agency reserved the right to declare ineligible bidders with canceled contracts in the last three years.

"We ask for contracts [canceled] within 36 months, because this provides us with additional information that might be important – [such as] funding, or lack of funding," said Mark Higdon, TYC's business manager for contract programs. "It might not be performance. It might be something else, and we can look at that also."

While a contract cancellation would clearly be a red flag for TYC, there are many loopholes through which worrisome contractors can pass.

Arkansas officials, for example, let an agreement with Associated Marine Institutes expire after an audit found the contractor had mismanaged its billing and failed to provide proper services to young inmates. Elsewhere, companies have negotiated deals allowing them to withdraw from their contracts, or simply shut down after states have removed youth from their facilities.

Neither of these would constitute a terminated contract as defined by Texas.

Critics say that TYC requires private contractors to provide less background information when bidding than it should. For example, TYC does not request major incident reports or disclosure of lawsuits against contractors, nor does it do any independent research.

In Florida, by contrast, companies must list and explain any "correctional facility disturbances" – major incidents, such as escapes or deaths – in any of the company's prisons. Such disturbances may be the result of inadequate staffing, poor training or other factors and raise warnings about a company's practices.

TYC should require contractors to provide all incident reports, said Ms. Deitch, a lawyer with 20 years' experience in criminal justice policy issues.

"It is absolutely important that the contracting agency has this kind of background info," she said. "If problems occur, there can be liability concerns for the state agency, and the costs of dealing with the problems can far exceed any savings from going with a low-cost contractor."

Elizabeth Lee, the new acting coordinator for TYC contract care, acknowledged the agency has no "established process for collecting information" on how its contractors performed in other states. The important thing to consider, she said, is what they're doing in Texas "and what we're doing to monitor the care of our kids."

Correcting contractors

TYC regularly reviews contract facilities. It checks program areas, such as staffing and security, at least once a year. It also uses statistical information, such as rates of confirmed mistreatment and the number of escapes, to evaluate operators. TYC quality assurance monitors also make at least two unannounced visits per year.

If a facility has significant problems, it is put on a corrective action plan, which outlines improvements and deadlines for them.

The Coke County youth prison, for example, was placed on a corrective action plan in February after Robert Schulze's suicide. The plan required Coke to improve staffing and procedures in solitary confinement. Records show that Coke was also placed on a corrective action plan in July 2006 for deficiencies in case management, which includes inmate monitoring and record keeping.

Earlier this month, TYC monitors visited WINGS for Life in Marion, just outside San Antonio, which houses female inmates and their babies, to follow up on a corrective action plan necessitated by deficiencies in staff training and documentation.

"If a facility fails any critical measure, we have to come back and check it," said Jim Humphrey, the TYC quality assurance supervisor for WINGS.

TYC has the authority to fine contractors for problems, but it has never done so in 33 years of outsourcing, officials said.

"If it comes to that, we would just stop the contract," said Paula Morelock, who recently retired after 17 years as TYC's contract care coordinator.

But it rarely does that.

The News could find only a few instances of TYC not renewing contracts because of poor performance. TYC is required to retain contractor records for only a few years, so a full review of the program was not possible.

In 2001, TYC terminated its contract with FIRST Program of Texas in Longview after repeated problems. One young woman said that when she was at FIRST, it had chronic staff shortages.

"A lot of stuff took place that shouldn't have," said Michelle, a 22-year-old who asked that only her first name be used. "There were lots of problems ... like staff having sex with the youth there and improper restraints and lack of supervision."

In 2004, TYC removed its youth from the Hemphill County Juvenile Facility, then run by Correctional Services Corp., a former state contractor, because of "grave concerns for the safety of youth."

The move followed a December 2003 complaint signed by about 30 inmates. Still, an agency review conducted shortly after the letter was sent gave the facility "above average" scores on all performance measures.

The facility was later placed on a corrective action plan. A February 2004 update from TYC staff to Ms. Morelock said: "Although they have not completed all items, the team does believe that youth are safe and that the program is stable."

But staffing shortages followed, and in June 2004, TYC removed its youth from the facility.

"We feel like we do a lot of good monitoring and do our very best to ensure that the youth receive quality services," Ms. Morelock said.

When contracts expire, TYC determines whether the facility met the terms of its agreement. The contractor completes a renewal packet, and then youth commission officials visit the facility to determine whether to extend the contract for another two years.

More often than not, Ms. Morelock said, contracts are renewed.

Critics say that TYC needs to change its policy and open the process to outside bidders each time a contract comes up for renewal.

A question of oversight

TYC already has come under fire for lax employment guidelines that allowed contractors to hire convicted felons or even sex offenders. A Texas state auditor report in March urged TYC to ban contractors from hiring employees with convictions and to require background checks of applicants.

Even with background checks, some workers with criminal records have slipped through.

A registered sex offender employed by the GEO-run Coke County Juvenile Justice Center was fired in March. Ms. Morelock said the facility told TYC that it ran a background check on the worker, but his criminal records did not turn up. GEO said the correctional officer's prior record was not uncovered because juvenile records in Texas are sealed. [See dallasnews.com for further GEO comment.]

The Texas Juvenile Probation Commission, which licenses county facilities, found the Garza County Regional Juvenile Center in Post out of compliance last year because it failed to do criminal background checks on employees before they were hired.

In a unique arrangement, TYC contracts with the county, which in turn hired a private operator, Colorado-based Cornerstone Programs, to run the Garza facility.

TYC relied on the county to vet the contractor's background, Ms. Morelock said. A Garza County official said he did not know what, if any, backgrounding of Cornerstone had been done.

It's impossible to know whether other employees of private contract facilities have criminal records because, unlike workers at state-run facilities, their names are not public information.

"The fact that [these] facilities are private simply adds one more layer of opaqueness to the process," said Ms. Deitch, the UT adjunct professor.

A few of the TYC legislative reforms will carry over to private operators. Their guards' training hours must match that of TYC employees, their younger inmates must be separated from older ones, and contractors must now conduct fingerprint background checks on all employees and volunteers in contact with youth.

"Some of the contractors were already doing that [fingerprinting], but just as a safeguard we're putting it in the contract that they all have to do it now," said the TYC's Ms. Lee.

TYC officials say the most valuable part of the agency's monitoring is staff visits to facilities.

"They're looking at grievances, they're talking to kids, they're talking to staff and they're reviewing incident reports," Ms. Lee said.

In general, though, TYC relies heavily on its contractors to police themselves.

Contractors are required to forward inmate abuse allegations, although agency monitors have raised concerns that not all make it to TYC.

Contractors also must report serious incidents to local law enforcement, but TYC reviews found facilities that failed to do so.

Critics of privatized juvenile care think more state oversight is necessary.

"Child welfare and juvenile justice systems have both a legal and moral obligation to protect kids from harm, which means they have a responsibility to exercise due diligence when it comes to placing youths in psychologist frequently hired by the Illinois Department of Children and Family Services to review juvenile care.

"Whether we look at this situation in terms of public policy or simple morality, the question we have to ask is whether our society ought to be in the business of funding gulags for children."

Roland Garza, civil rights chairman of the Felix Longoria chapter of the American GI Forum

2006-09-23T02:58:00.000-07:00

United Way pawn
Roland Garza, civil rights chairman of the Felix Longoria chapter of the American GI Forum, showed up at City Hall this week demanding that the city deduct a portion of workers' paychecks so they can have a union.
It's debatable whether the lot of city workers would improve with a union, but Garza certainly had the right to press the point. But he gets a THORN for threatening to use deductions for the United Way of the Coastal Bend as a pawn if he and his supporters did not get their way.
The payroll deductions,agreed to by city workers, support services for the needy and for children. They fund an array of services that in many cases the recipient agencies couldn't provide otherwise.
Garza can debate the union issue with the city, but he and his supporters should refrain from using vulnerable fellow citizens who depend on United Way-funded agencies as a bargaining chip.