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| 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.
Full Article & Source:
First Court of Appeals justice in Houston serving with Alzheimer’s disease, records show
