First Court of Appeals justice in Houston serving with Alzheimer’s disease, records show

1910 Harris County Courthouse, photographed Wednesday, July 24, 2019, in Houston.

by Samantha Ketterer

An appeals court justice serving Southeast Texas continues to sit on the bench as she suffers from Alzheimer’s disease, all while facing familial discord over the control of her $8 million estate, court records show.

Her sons launched an effort this month to become her legal guardians, alleging that Justice Laura Carter Higley, 72, is continuing with her daily routine in a manner contrary to the path of her failing cognitive health. That includes driving herself to work downtown and serving in her capacity on the First Court of Appeals based in Houston, said sons Garrett C. Higley and Robert Carter Higley.

“Due to the recent (and rapid) progression of her Alzheimer’s disease, Justice Higley’s mental state has deteriorated to the point that she is no longer able to care for her own physical health or manage her own financial affairs,” the Higley brothers said in the filing for guardianship.

Laura Carter Higley became the subject of the guardianship case in mid-October, just a week after receiving an official diagnosis of Alzheimer’s disease, according to documents filed in Harris County Probate Court No. 2. Her wellness issues began more than a year earlier with a diagnosis of an unspecified mild neurocognitive disorder, the sons said in their attempt to pull decisions regarding Higley’s care away from her husband, West University Place Mayor Bob Higley.

Several calls to the judge’s office were not returned Tuesday, and on Wednesday, the court’s receptionist said that Higley was unavailable. When questioned why, she clarified that she works in a “big building” and hadn’t actually seen the justice. She confirmed that Higley was receiving the Houston Chronicle’s messages, however.

The court’s chief justice, Sherry Radack, declined to confirm Higley’s mental state, or whether she and the other justices on the bench were aware of the situation.

“You know I can’t comment on that,” Radack said.

It’s unknown whether Higley has been on the receiving end of any official complaints. Those would be brought to the State Commission on Judicial Conduct, the oversight group for judges, interim executive director Jacqueline Habersham said.

But under the Texas Constitution, a judge can be removed from office because of a disability that interferes with their duties, which is or is likely to become permanent in nature.

Alzheimer’s disease is a form of dementia that is progressive in nature, meaning it can begin with mild memory loss and become more severe, possibly causing the person to lose the ability to respond to their environment, according to the Centers for Disease Control and Prevention. It can affect the ability to complete daily activities, the agency said, and there is no known cure.

Through the guardianship filing, the Higley sons referenced previous efforts to have the justice removed from her post, but it is unclear whether those efforts come from family members, coworkers or elsewhere. The brothers’ attorneys did not return several requests for comment.

The sons called Laura Higley’s condition “in the moment” only, meaning she can carry on brief conversations with people but can’t engage in anything substantive. She struggles to remember information relayed to her or people she spoke with just a day before, according to the court filing.

Higley can’t do her job or manage her personal and financial affairs without complete assistance and supervision, meaning she’s a legally “incapacitated” person, the sons said.

The justice, a Republican, has held Place 5 on the state’s First Court of Appeals since 2002. She was re-elected in 2008 and 2014, and her term ends December 2020.

Prior to being a judge, she was an attorney at Baker Botts, L.L.P., and before that, the mayor of West University Place.

The judge began experiencing mild neurocognitive issues as early as November 2017, according to her sons’ filing. The unspecified disorder progressed to a mild neurocognitive disorder stemming from possible Alzheimer’s disease in March, which again worsened to a diagnosis of Alzheimer’s disease on Oct. 9, court records show.

The justice’s name is not listed next to any decisions made on appeals cases since her diagnosis earlier this month, according to the First Court of Appeals website. But she has been involved in hundreds of decisions on civil and criminal cases since March.

Higley is one of nine justices on the court, which serves Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller and Washington counties. The judges mostly hear appeals on cases decided in lower district and county courts in their jurisdiction.

Lillian Hardwick, a Texas attorney who wrote the “Handbook of Texas Lawyer and Judicial Ethics,” said that judges may be fearful of leaving their bench too early while facing an illness. They might enjoy the work, be hesitant to cut off retirement benefits or may not know the scope of their problem.

On the other hand, a justice might feel they’re having issues remembering certain things at home, but “by golly, she can tell you the family law code backwards and forwards,” Hardwick said. Only in the event their disability impedes the ability to perform their duties would they be violating constitutional requirements.

“They should either be retired by somebody or they should be removed,” she said. “That judge is not able to be a judge, it’s pretty simple.”

The justice’s colleagues might be in the best position to notify the commission of a potential unfitness for office, said Jonathan Smaby, the executive director at the Texas Center for Legal Ethics.

The Texas Code of Judicial Conduct requires judges to be competent and diligent, he said, although the justice might not be aware of their own lack of competence.

“It’s not always obvious to the person when they’re suffering from age-related decline,” Smaby said. “To say it’s an ethics violation makes it sound like it’s intentional.”

The state commission has the ability to launch investigations into justices after receiving notifications of misconduct or disability that interferes with the performance of their duties, according to state procedural rules for the removal or retirement of judges.

That person could then be put through a formal process which could result in the commission’s recommendation for removal or retirement, or a publicly ordered censure, reprimand, warning or admonition, the rules state. After, the commission could ask a tribunal appointed through the Texas Supreme Court to make the final order.

 

Sons vs. father

In seeking to be their mother’s guardian, the brothers additionally aim to wrest decision-making powers away from their father, the mayor, according to the probate court documents.

Bob and Laura Carter Higley are still married and live together. Their sons voiced concerns, however, that their father would financially exploit and abuse their mother as he serves as her attorney-in-fact.

“Bob Higley has acted as a malevolent enabler in that he has encouraged Justice Higley not to resign or retire from serving as Justice in the First Court of Appeals and has personally opposed efforts to have Justice Higley removed.”

Bob Higley declined to speak on the allegations when reached at his office, and his attorney did not return a request for comment.

The justice made her husband her power of attorney and medical power of attorney in March.

Her eldest son, Garrett, 45, of Austin, wants to care for her instead. The younger son, 40-year-old Robert, of Jackson, Wyoming, seeks to manage her estate, which surpasses an estimated $8 million.

Already, the two feel their father’s actions to date have been “inconsistent” with their mother’s best interest and wishes, they claim, saying that his conduct has “exacerbated the present situation.”

Bob Higley encourages and allows his wife to drive herself from their West University home to the downtown courthouse, despite how she is becoming increasingly disoriented and lost while driving alone, the sons alleged in the court documents. In the late summer this year, the mayor had his sister take his wife to get her driver’s license renewed, Garrett and Robert said, even though a doctor had told the justice and her husband that she should refrain from driving.

Some of Bob Higley’s decisions are worrisome to Laura Higley’s well-being, their sons say.

“Justice Higley’s personal and financial safety are paramount, as is the protection of her reputation and preservation of her legacy as an appellate justice,” the brothers said. “Bob Higley refuses to acknowledge that Justice Higley’s recent, abnormal behavior endangers both herself and others, and Bob Higley has ignored clear indicators and explicit warnings that Justice Higley is no longer capable of serving as a Justice on the First Court of Appeals and/or managing her own personal and financial affairs.”

A probate court hearing is scheduled for 10 a.m. Monday in the guardianship case.

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First Court of Appeals justice in Houston serving with Alzheimer’s disease, records show