Houston federal judge allows state judge to be sued
HOUSTON - Southern District Chief Justice Lee H. Rosenthal recently
issued a landmark ruling allowing a wrongful death lawsuit against a
Houston probate judge to proceed in an adult guardianship claim.
Sherry Johnston sued Harris County Probate Judge Christine Butts in
2016, alleging that her elderly mother Willie Jo Mills suffered broken
bones and a rapid, preventable decline, which contributed to
malnutrition and death when Mills was a ward of the State of Texas under
A ward is typically a senior citizen experiencing cognitive
decline or a younger adult with physical or developmental disabilities.
“Construing the allegations in the light most favorable to
Johnston, she has alleged a plausible claim against Judge Butts’s bond
under § 1201.003,” Judge Rosenthanl states in her May 15, 2018 Decision.
Issued by Texas Bonding Company and Harris County, Judge Butt’s
public official bond is valued at $500,000, according to court records.
Judge Rosenthal’s ruling comes at a time when the adult
guardianship system in Texas is under fire, according to a press
Bexar County Probate Judge Kelly Cross was admonished this month by
the State Commission on Judicial Conduct for labeling a proposed ward
in another case "Mr. Maggot" and "Maggot Man” while the Spectrum
Institute’s Legal Director Tom Coleman has requested records from Texas
Supreme Court Chief Justice Nathan Hecht to determine whether a self
evaluation of the state's guardianship system is underway. On April 18,
the Texas Judicial Council’s David Slayton announced to Congress in
Washington, D.C. that nearly half of adult guardianship cases in the
state are out of compliance with reporting requirements.
“Johnston does not allege that Judge Butts failed to conduct the
annual examination,” wrote Judge Rosenthal in her May 15, 2018
Memorandum and Opinion. “But she does allege that Judge Butts ignored
requests for emergency relief, including a request made two days before
Mills died. The context and timing of these requests are enough to state
a claim that Judge Butts did not exercise reasonable diligence to
determine whether Dexel and Lott were performing their duties as Mills’s
guardian. The claim is limited to the amount of Judge Butts’s bond.”
According to court records, successor guardian Ginger Lott settled with Johnston in April 2018.
Judge Rosenthal dismissed claims against Harris County and guardian
ad litem Clarinda Comstock however claims against Judge Butts and David
Dexel will continue with a status conference on May 29, 2018 at
Section 1201.003 of the Texas Estates Code (TEC) specifically
states that a judge is liable on a Judge's bond to those damaged if
damage or loss results to a guardianship or ward because of the gross
neglect of the judge to use reasonable diligence in the performance of
the judge's duty under this subchapter.
“It creates a limited waiver of judicial immunity, allowing
recovery for losses directly tied to the judge’s duties under the
subchapter,” wrote Rosenthal in her decision.
Johnston sued David Dexel for breaches of his fiduciary duty based
on allegations that he improperly billed and received attorney’s fees at
$300 per hour in many instances instead of billing at a Guardian’s rate
of $100 per hour.
According to Judge Rosenthal’s order, claims against Dexel include
discontinuing physical therapy for Johnston’s mother, which Johnston
alleges made her mother’s muscle problems worse.
“The allegations as to Dexel’s conduct as Mills’ guardian and the
allegations as to his conduct in the probate-court proceedings support
one claim for breach of fiduciary duty,” Judge Rosenthal’s order states.