Texas Court System's Adaptation to and Beaumont's Ninth Court of Appeals's Closing for Tropical Storm Harvey

Texas's Supreme Court and Court of Criminal Appeals have encouraged state courts to be lenient with people suffering delays because of Harvey-- more than a few people are trapped in their homes and won't be able to get out for days.  Beaumont's Ninth Court of Appeals's appears to have closed Friday, August 25, 2017 at five PM and will not open until further notice.

Retired Ninth Supreme Judicial District Appeals Justice Dies

The honorable James Donald McNicholas, former associate justice of the Beaumont's Ninth Count of Appeals, died Thursday, October 13, 2016 at Harbor Hospice- apparently at one of their Beaumont locations. He had been the municipal judge of Beaumont for approximately the last ten years, continuing until just before he died. He served as on the Court of Appeals only from 1983-1984.

McNicholas was born in Marinisco, a tiny logging village on the Upper Peninsula of Michigan, a tiny village near the Wisconsin border on April 23, 1918. He got his undergraduate degree and law degree from the University of Michigan. Before his last year of law school, he served as a Captain in the Third Army during World War Two and served under George Patton. He received his law degree in 1948. He was admitted to the Michigan bar in 1948 and the Texas bar in 1949. McNicholas was admitted to practice in all Texas state courts and the United States District Court for the Eastern District of Texas as well as the United States Court of Appeals for the Fifth Circuit. He is a member and past president of the Jefferson County Bar Association, as well as a member of the Texas Association of Defense Counsel.

Judge McNicholas practiced law in Beaumont for sixty years. Most recently he was of counsel at Germer, PLLC. He was Mayor of the City of Beaumont from 1968-1970 and was a Board Member of Jefferson County Drainage District Six at his death. 

Funeral services will be held at 11:00 a.m. on Monday, October 17, 2016, at St. Andrew’s Presbyterian Church, 23rd and Gladys, Beaumont, Texas. Our condolences go to his family.

No Springtime in Race Relations in Jefferson County This Year: a Tale of the Ninth Court of Appeals

No blog that purports to keep up with the Ninth Court of Appeals can fail to discuss the biggest publicity case of the spring: l'affaire Beaumont Independent School District. The reporting of Dan Wallach of the Beaumont Enterprise has been insightful and enlightening. The School District is governed by a board elected from seven single-member districts. The history of the present Beaumont ISD reflects tension between blacks and whites over more than a century. My high school girlfriend was a white West Brook High School student, like most of the students then, but West Brook is a grittier, majority-black school now. Like every U.S. governmental entity governed by representatives from geographical districts, BISD had to realign its districts to comport with the results of the 2010 census. Like every governmental entity redistricting where the rights of minorities have been abrogated in the past, the federal justice department must approve proposed changes before they are implemented to make sure they are not racist. This is called preclearance. The new districts were submitted for preclearance so that the regular election could take place on May 11. The terms are for four years and are staggered. Three trustees, each black-- Zenobia Bush, Woodrow Reece, and Terry Williams-- won their seats in 2011. Lawyers Michael Getz, Michael J. Truncale, and David Vann de Cordova, Jr. reviewed Texas Education Code sec. 11.052. It appeared to require all trustees to run for reelection after redistricting. They advised their client sitting white trustee Michael Scott Neil-- who also had been elected in 2011-- and their other clients, nontrustees Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore-- one black, one white and one Hispanic-- to quietly file for election by March 1. They did. Bush, Reece, and Williams did not. That's when the lawyers, along with lawyer Hubert Oxford IV, and the nontrustee candidates sprung the trap by seeking and gaining a mandamus order from the Beaumont Court of Appeals requiring BISD to hold an election without Bush, Reece and Williams's being candidates on March 18, 2013. BISD tried to stay the order but the appeals court justices held firm on March 27, 2013. Neil got an order from the Beaumont Court of Appeals forcing BISD to put him on the ballot for May 11. The federal department of justice got a federal district court to issue a temporary restraining order abeying the election until a three-judge panel can consider a temporary injunction there, and possibly abeying the election until the DOJ can finish its preclearing decision. This means there'll be no election May 11 unless the DOJ makes its decision much faster than observers would expect. BISD has cancelled the May 11 election.
No springtime for race relations in Jefferson County this year.
In re Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore, No. 09-13-00115-CV, (Tex. App.--Beaumont, Mar. 18, 2013) (orig. proceeding).
In re Michael Scott Neil, No. 09-13-00144-CV, (Tex. App.--Beaumont, March 28, 2013) (orig. proceeding).

Beaumont's Ninth Court of Appeals Rejects State's Retrial Objection

Justice Hollis Horton, writing for a panel of Beaumont's Ninth Court of Appeals including Chief Justice Steve McKeithen and Justice Charles Kreger, affirmed District Judge John Stevens's granting of a motion for new trial in the case of James Cody Guedry.
In August 2007, a City of Beaumont patrolman sees a car fail to yield the right-of-way to another car at a controlled intersection. In the stopped car, two men were in the front.  One was  in the back.  After the stop, other officers arrive to prevent the driver of the car and the front-seat passenger, D.N., from interfering with the arrest of the back-seat passenger, who had an outstanding warrant. A fight started when Guedry tried to pat D.N. down.  An officer near Guedry, David Todd Burke, began hitting D.N. with his baton. Guedry then tased D.N. twice.
The State charged Guedry and Burke with official oppression, a Class A misdemeanor, and they were indicted. Burke was tried first. At Guedry's trial, he used the same lawyer that Burke had, and the same expert witness (He waived his lawyer's conflict of interest in also his also representing Burke.). Guedry's field training officer testified that Beaumont officers should provide a subject with an opportunity to avoid the taser's use if feasible before discharging the taser. D.N. said that he had made a rude comment when Guedry patted him down, but denied resisting the search by grabbing Guedry's hand. Guedry contradicted D.N., and offered the testimony of the expert who testified that if D.N. resisted, Guedry's use of a taser was reasonable.
Guedry was convicted, and filed a motion for new trial, which he amended the day before the hearing (more than 30 days after sentencing). The trial court granted the new trial in the interest of justice on the ground that Guedry had been denied effective assistance of counsel. The State appealed because:

• the court should not have held a hearing on a motion for new trial where it was not sworn and there were no affidavits and because relief should not have been granted on a new trial motion amended more than 30 days after sentencing; and
• Guedry did not prove ineffective assistance of counsel.

The Appeals Court held that new trial motions that do not assert newly discovered evidence need not be sworn nor have affidavits. It also held that the amended motion added no new legal grounds to the motion, implying that any error from the amended motion was harmless. Lastly, the Court of Appeals said that ineffective assistance had been proved. Guedry's being stuck with Burke's expert was incompetent.
The D.A.'s office was willing to set its face against Guedry and Burke and so was the police hierarchy, but the bench is not.
Thanks to KIII-TV, channel 3, in Corpus Christi, Texas  for bringing this story to my attention. I don't have any reason to think that the story made it into Beaumont media, but Corpus is all over it.
State of Texas v. James Cody Guedry, No. 09-11-00185-CR, (Tex. App.--Beaumont, Sept. 5, 2012, no pet. h.).