Fifth Circuit affirms dismissal of suit against Harris County probate judge

By Staff reports

HOUSTON -  The U.S. Court of Appeals for the Fifth Circuit recently affirmed the dismissal of a lawsuit brought against Judge Michael Newman, justice of the Probate Court of Harris County. 

The lawsuit was brought by Sheila Owens Collins, who accused Judge Newman of intentional infliction of emotional distress, intentional and negligent interference with prospective economic advantage, and 14th Amendment violations. 

Court records show that in October 2017 Harris County Probate Court Number 1 presided over a guardianship proceeding relating to the adult Hattie Lester Balfour Owens. Following an investigation and medical examinations, the court determined that Owens was incapacitated. A nonparty judge presided over the proceedings, and appointed a temporary guardian, guardian ad litem, and an attorney ad litem to represent Owens in her opposition to the guardianship. 

On Jan. 1, 2019, Owens passed away at 90. The guardianship case was reassigned to Judge Newman in Probate Court Number 2 on Feb. 6, 2019, court records state. Judge Newman ruled on applications to award attorney’s fees before the guardianship closed in June 2019. Between February 2019 and October 2020, Judge Newman presided over the probate estate of the late Owens.

Court records show that on Feb. 5, 2021, Collins amended her complaint against Judge Newman to assert violations of: the Due Process Clauses of the Fifth and Fourteenth Amendments; Cannons 1 and 2 of the Texas Code of Judicial Conduct; and the Racketeering Influenced and Corrupt Organizations Act.

Collins alleges the attorneys appointed in the probate case conspired with her family members and Judge Newman to hasten Owens’ death and deplete her assets, court records state. Collins further accuses Judge Newman of colluding with the attorneys and her family members by failing to supervise them and ordering the estate to pay fees that she personally believes are excessive.  

Court records show the trial court granted Judge Newman’s motion to dismiss. Collins appealed the decision. 

In his appellate brief, Judge Newman states that not one of Collins’ complaints state a valid legal claim sufficient to overcome his immunity. 

On Dec. 2, the Fifth Circuit found Collins “fails to present any non-frivolous arguments on appeal,” affirming the judgment of the trial court. 

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Fifth Circuit affirms dismissal of suit against Harris County probate judge

Federal judge sends suit against probate judge and guardian to state court

HOUSTON - U.S. District Judge Lee H. Rosenthal remanded plaintiff Sherry Johnston's breach of fiduciary duty claim against court appointed guardian David Dexel to the 253rd Judicial District of Liberty County, all while letting Harris County Probate Judge Christine Butts off the hook.

“Unlike the claim against Judge Butts, the claim against Dexel raises unsettled issues of Texas law,” wrote Judge Rosenthal on Mar. 14 in a 40-page ruling from the bench of the U.S. District Court for the Southern District of Texas in Houston.

Johnston sued Judge Butts and Dexel in 2016, alleging that her elderly mother Willie Jo Mills suffered broken bones and a rapid, preventable decline, which contributed to malnutrition and her death when she was a ward of the state residing in a care center under guardianship, according to a press release.

“Because the action would be remanded, not dismissed, Johnston’s claims are not at risk of being time-barred,” noted Judge Rosenthal in her Memorandum and Opinion.

A ward of the state who has a court appointed guardian is typically a younger adult with physical or developmental disabilities. However, the Texas probate guardianship program along with the probate guardianship programs in other states are being confronted with allegations of neglect and malfeasance as they increasingly constrict the elderly who are experiencing cognitive decline.

The cries of elder abuse around probate guardianship programs gained national attention last year when U.S. Sen. Susan Collins of Maine introduced the Guardianship Accountability Act on Nov. 28, 2018.

As previously reported by the SE Texas Record, once appointed by a probate judge, guardians are empowered to sedate the elderly individual with physician-prescribed psychotropic drugs, to deny choice of meals, choice of health insurance, medical care and even visits with friends, disability advocates, adult children and other concerned loved ones by imposing visitation costs and residency in locked care centers.

The Senate Judiciary Committee in Washington, D.C. is currently evaluating the proposed Guardianship Accountability Act, which could, per the release, "impact 98 million Americans nationwide that are expected to reach age 65 and older by 2060.”

Johnston’s breach of fiduciary duty claim alleges that the court-appointed Dexel billed her mother Ms. Mills at his attorney rate of $300 an hour for non-legal services instead of billing at a guardian’s rate of $100 per hour.

“Dexel often charged his attorney rate to arrange payments to and from Mills’ trust, a service which does not appear legal in nature,” wrote Judge Rosenthal in her decision. “Because the court has found at least one factual dispute material to deciding if Dexel breached a fiduciary duty owing to Mills, summary judgment cannot be granted for Dexel on this record.”

Before her death, Ms. Johnston’s mother, Mills, was among the estimated 48,468 Texans conscripted to live under the thumb of a court-appointed guardian in 254 counties, according to Office of Court Administration data.

“The defense presents unsettled Texas- law questions that touch on family relationships, estate management, the Texas probate system, and the care of some of the most vulnerable members of our community,” Judge Rosenthal stated. “They are questions that the Texas courts are better positioned to answer.”

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Federal judge sends suit against probate judge and guardian to state court