The Gary Polland / Alicia Franklin Scandal is now an Even Bigger Devon Anderson Scandal and Embarrassment

by Greg EnosApril 2015

My Tea Party and Republican friends agree with me that our government should be efficient andtransparent and should use tax dollars wisely. Liberals, like me, and arch-conservatives all believe that"insider" power brokers should not be allowed to manipulate or profit from government and that criminallaws should be enforced equally on the average citizen as well as well-connected big shots. Folks whoscream at each other over same-sex marriage can agree that our criminal justice system must BE fair andAPPEAR fair to the public it serves and protects. Everyone wants abused and neglected children to beproperly protected by dedicated professionals who perform their duties imposed by law and who do notimmorally profit from the CPS system.

All of these universal principles, which virtually all citizens agree on, explain why a local scandalinvolving a few judges who appoint a handful of politically connected attorneys over and over torepresent children and parents in CPS cases is a big really big deal. At least it should be a big deal, butthe lawyers who are literally making millions from this system are too powerful and our DistrictAttorney refuses to investigate or recuse herself, even though she has an enormous conflict ofinterest. Our local Republican elected officials, who are almost all people of good faith andintegrity, should be embarrassed and a little worried that the focus of this scandal is shiftingtoward District Attorney Devon Anderson.

Devon Anderson should do what the Republican District Attorney of Collin County recently didregarding his friend Attorney General Ken Paxton and recuse herself “to avoid any potential appearanceof impropriety arising from [her] business and personal relationship” with Gary Polland. I attach to thispaper a copy of the motion filed this month by Collin County District Attorney Greg Willis to recusehimself because he was personal friends with Ken Paxton and had a business relationship with him. TheD.A. there did the right thing and asked for a special prosecutor (in Texas called a “prosecutor pro tem”)to be appointed to investigate whether Attorney General Paxton violated State securities laws.

I am now writing the individual grand juries currently sitting in Harris County and sending themmy information and documents in hopes that they will take action when our District Attorney willnot.

I have tried for nine months to bring public attention to this scandal, just as I did to the misbehavior ofFamily District Court Judge Denise Pratt, who was forced to resign because of information I uncovered. I also was one of the attorneys who opposed Judge Christopher Dupuy in Galveston County, who wasindicted and convicted of criminal charges I brought and that judge also resigned. I am working withpeople of goodwill from both political parties to reform our family courts. My crusading lawyernewsletter, The Mongoose, uncovered a real scandal concerning abused children, millions of taxpayerdollars and possible criminal behavior. Almost all lawyers and judges (except those involved in the dirtydealing) agree that I have pointed out an embarrassing and really serious problem.

Most of our Republican judges in Harris County are honest, hardworking and are not involved in this

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sordid mess. A few judges have changed their policies because of stories my lawyer newsletter haspublished. However, two of our juvenile judges continue to work in secrecy and enrich just a fewlawyers, while the District Attorney fails to do her job and appears to be protecting powerfulRepublicans she will need to win her primary election next year. A newly elected Republican FamilyCourt Judge, Alicia Franklin York, is also involved in this scandal and the District Attorney is notinvestigating her either.

The Problem

Childrens Protective Services files lawsuits to protect children from abuse and neglect. The law requiresjudges to appoint attorneys to represent the children and also sometimes to represent the parents if theycannot afford their own attorney. In Harris County, most CPS cases are handled in the three JuvenileDistrict Courts, where no court records are public and it is very hard for outsiders to document what ishappening there. However, records from the County Auditor show that Harris County paid Gary Polland$2,091,190.19 between January 1, 2010 and December 31, 2014, for court appointments, primarily inCPS cases (although his fees include some criminal and civil appointments). Alicia Franklin, before shewas appointed judge to replace the disgraced Denise Pratt, made $822,854 in CPS appointments fromtax payers during a four and a half year period. In total, Harris County paid $176.53 million in courtappointments to lawyers in the last five years (2010 - 2014).

Gary Polland is the former Chair of the Harris County Republican Party. Polland has enormous politicalinfluence in Harris County Republican primaries, especially with judges, because he is one of the "BigThree" endorsers. It is virtually impossible to win a Harris County GOP judicial primary, even for anincumbent, without at least two of three endorsements from Steven Hotze, Terry Lowry or Gary Polland. Unlike Hotze or Lowry, Polland is an attorney.

Every two years, Polland makes a lot of money from his business, Conservative Media Properties, LLC,doing business as the Texas Conservative Review, which endorses candidates in Republican primaries. Candidates give Polland money to pay for his mailers and local judicial candidates almost have to payPolland because voters simply cannot know which of the dozens of judicial candidates are qualified. In election season, judges usually ask attorneys for political donations, except for Polland. Unlike otherattorneys, Polland is able to go to the judges and ask the judges for money and they almost pay himbecause they have to. No individual judge is able to raise enough money to effectively advertise in ahuge and expensive media market like Houston. However, the “Big 3” endorsers are able to reach mostRepublican voters repeatedly in the primary season because they pool money from many candidates.

Polland also has a television show on politics on the local Public Broadcast channel 8 on Sundays. Polland is in a truly unique and powerful position and most local judges are, frankly, scared of him.

There is some irony for me personally in seeking a criminal investigation of Gary Polland. Polland isthe most “liberal” of the “Big Three” Republican endorsers in Harris County and the loss of Polland inthe Harris County Republican primary process would skew the system even more in favor of thosefanatic about abortion and discrimination against same sex couples to the exclusion of all other issues. Polland is mostly a traditional Republican conservative concerned about fiscal policies and Israel andnot as interested in imposing a fanatical version of Christianity on the nation. Hotze and Lowry are far

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less pragmatic that Polland, but they are not attorneys who get business from the judges they endorse.

Here are a few shocking samples of what I uncovered after I paid hundreds of dollars to get pay vouchersfrom the County Auditor and then analyzed them day by day (something no one else has apparently everdone):

! On October 1, 2013, Polland billed the County for 30 hours of legal work plus one courtappearance. The hours Polland billed for CPS home visits are shown in one column and all other"out of court" hours he billed for that day are in the next column. Appointed attorneys are paidflat rates for court appearances and, on this day, Polland only had one court appearance.

! Another example occurred on August 10, 2013, when Polland billed for four home visits totaling19 hours. In CPS cases, the law requires the attorney ad litem appointed to represent the childto personally visit the child at home before each court appearance. Polland almost always billedexactly 5.0 hours for "travel to and conduct home visit; draft report with pictures," which is itselfhighly suspicious. These invoices submitted by Polland clearly make it look like Polland did allof this work and certainly do not mention any associate or social worker conducting these homevisits. It is clearly not possible for one attorney to conduct four or five home visits or to honestlybill 19 hours in one day. Did Polland visit a child at home at 3:00 a.m.? It is also very odd thatPolland almost always bills exactly 5.0 hours for these home visits, regardless of where the childlives. I have now seen hundreds of CPS pay vouchers, and most attorneys bill from 2.0 to 3.5hours for home visits and the number of hours they claim always varies because, of course, thetime they spend in travel and visiting the child varies every time.

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! Below is an e-mail from an attorney casting doubt on the number of hours Polland billed for ahome visit on August 29, 2014 and the invoice Polland submitted for that day.

! On March 20, 2013, attorney Alicia Franklin (before she was appointed judge) billed HarrisCounty, as well as the parents in a private amicus case, for the following all on one blessed day:

28.5 out-of-court hours in CPS cases3.75 hours on a private amicus case1 CPS trial appearance4 non-trial CPS court appearances

! I heard from a parent in a private child custody case where Judge Denise Pratt appointed lawyerAlicia Franklin as amicus attorney to represent the children. Here is what this parent wrote me:

Alicia was appointed as the amicus by Judge Pratt. Both families were billed over $118,000 totalby Alicia. As an investigator for the court and the two children involved, Alicia Franklin nevercontacted a single family member or friend of my husband's to confirm his relationship with hischildren. The only thing that was consistent were the outrageous bills that appeared each monthwith nothing more than "communication" listed as the explanation. When my husband and I weresitting at a child visitation with one of Alicia's assistants, my husband asked how families wereable to afford these types of cases, Alicia's assistant replied, "most of our cases are paid by the

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state", paused then stated, "but that's good because we can bill them millions of hours". Myhusband and I couldn't believe what we were hearing. We felt like from the very beginning it wasabout the money. Alicia never seemed to know what we were referencing when we would ask herabout faxes we sent and told us on more than one occasion "I'm sorry, I have another case that'svery similar to yours and I have a hard time keeping them straight".

Polland and Franklin apparently admit that they used associate attorneys or social workers to bill forthem on the same days, which makes such billing totals possible. The problem with that defense is that,unlike other areas of law, a lawyer appointed by a judge as an ad litem cannot and should not bill forwork done by other attorneys (except in unusual circumstances and then only after informing the court).

This is what one Texas Court of Appeals said:

When a guardian ad litem is appointed, the trial court intends that appointed attorney topersonally protect the minor's interests and to act as an officer of the court. Accordingly, it isgenerally not anticipated or reasonable for a guardian ad litem to delegate his ad litemresponsibilities to other attorneys. ....We hold that a guardian ad litem may not becompensated for time expended by other attorneys, unless the trial court has made a specificfinding that the other attorney's services were reasonable and necessary under a particularextenuating circumstance.

Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574, 588 (Tex. App. - San Antonio2004, no pet.)(citations omitted)(emphasis added).

Texas Family Code Section 107.015(d) says the voucher submitted to the county for payment by the adlitem on a CPS case shall list, "...the fees charged and hours worked by the guardian ad litem or attorneyad litem." The statute does not say the voucher can include hours charged or worked by, "the attorneyad litem or her associate or designated representative."

Harris County Presiding Family Judge David Farr (a Republican and one of the most respected judgesin the State) told the Houston Chronicle on September 12, 2014:

Judge David Farr, the administrative judge of the county's nine family courts, said hebelieves the law is clear that only the lawyer appointed to a case may be paid.

So for years, a few politically connected attorneys, made hundreds of thousands of dollars by submittingquestionable bills that the judges who appointed them approved and no one cared or knew about theproblem - until now. In response to articles in my legal newsletter, several family judges and onejuvenile judge, Judge Schneider, adopted new stringent rules for random selection of attorneys ad litemand strict rules for billing - including a prohibition on submitting bills for others not appointed in thecase. All nine of the family court judges adopted a rule that required ad litem attorneys to clearly letjudges know if their bills include charges for others. Since my newsletter published its articles aboutthis scandal, the family district judges have basically stopped appointing Gary Polland in CPS cases andnow a lot of other attorneys are getting their fair share of appointments.

Unfortunately, two of the juvenile judges, Judges Devlin and Judge Phillips, are still appointing Gary

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Polland regularly and have not cracked down on his billing practices.

The real problem is that no one has any incentive to change or closely monitor the CPS pay system. Afew judges are picking their pals for the appointments and therefore they obviously want the attorneysto make money. The attorneys do not want their vouchers audited either. They have figured out thatthey can make a lot of money by submitting almost any hours they can make up and no one is ever goingto care or catch them.

Submitting False Billing for CPS Appointments is a Crime

Texas Penal Code Sec. 37.10 states in part:

37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he: (1)knowingly makes a false entry in, or false alteration of, a governmental record; (2) makes, presents, oruses any record, document, or thing with knowledge of its falsity and with intent that it be taken as agenuine governmental record;....

Sec. 37.01(2) defines a "government record" to mean:

(A) anything belonging to, received by, or kept by government for information, including a court record; This is the law former Judge Denise Pratt is alleged to have violated when she apparently back-datedcourt orders. Recently, a San Antonio lawyer was sentenced to 10 years in prison for submitting falsepay vouchers to Bexar County for appointed criminal defense work.

Tampering with a government record is a Class A misdemeanor,"unless the actor's intent is to defraudor harm another, in which event the offense is a state jail felony." Sec. 37.10(c).

An attorney appointed in a CPS case who knowingly submits a false pay voucher that over bills or whichbills for something the attorney did not do is arguably,"knowingly mak[ing] a false entry in ... agovernmental record" and "mak[ing], present[ing], or use[ing] any record, document, or thing withknowledge of its falsity and with intent that it be taken as a genuine governmental record..." Theattorney is also committing theft from the county. Each fraudulent pay voucher would be a separatefelony.

One Partial Solution: Transparency and Open, Electronic Records

Most parts of local government operate efficiently using modern technology and that is what tax payersexpect. Virtually every aspect of the work in our family and juvenile courts is done via computer andthe Internet. Lawyers do not file papers with the court, they scan and submit their pleadingselectronically. Judges do not look through paper files when they hear a case, they look at the courtdocuments on a computer screen. Judges now even sign court orders electronically. The finances ofHarris County are extremely computerized and highly scrutinized. The County Auditor’s public website allows me to search payees by name and see how much the county has paid a particular person orcompany.

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And yet, Harris County is allowing its family and juvenile judges to approve handwritten paper vouchersfor the work claimed to have been done by attorneys and there are simply no checks or balances. UntilI began my investigation, the county auditor had apparently never audited the CPS payment vouchersand instead always automatically paid them if a judge had approved the fees. Busy judges, who are handed stacks of handwritten pay vouchers every day, have no way to see what a lawyer billed in thatcourt or other courts on the same day. The clerks in the juvenile courts do not even enter the lawyer’snames into the computer system (as is done in civil and family courts), so it is not possible to search theDistrict Clerk’s public records to see how may cases each lawyer has in the juvenile courts. The simple solution is to go to an all electronic reporting system, like the State makes candidates use forreporting campaign contributions. Candidates must enter their information into a database program thatautomatically uploads the data to the State database that we can all search.

The county should make ALL billing and pay information for appointed attorneys viewable on line byeveryone, including judges and reporters. This would allow a judge to call up a lawyer’s other billselectronically to see what he or she was charging other judges for work done the same day and thiswould hopefully discourage and end most of the abuse. Such a system would make it easier for theCounty Auditor to actually do her job and audit these invoices. However, the County Auditor is hired,fired and managed by the district judges of Harris County. How enthusiastic will the auditor be to auditthe CPS invoices her bosses have already approved unless she gets very clear instructions from herbosses?

An electronic system for submitting and approving attorney fee requests would allow Harris County toproperly safeguard taxpayer money.

Our family and juvenile judges should demand that all court appointments and all fees for appointedattorneys be reported in documents accessible to the public, even in the juvenile courts. A 1997 TexasSupreme Court order (made in response to a much earlier lawyer appointment scandal in Harris County)requires the District Clerk to submit a monthly report on fees for court appointments in civil cases, butthe clerk can only tabulate what is reported. No order or rule requires attorneys to report eitherappointments or fees, so the vast majority of court appointment fees are not being reported. I was ableto see a small slice of court appointment fees reported by the County Auditor only because those feeswere paid by the county. An even larger amount of money is paid to lawyers for court appointments byprivate parties in family law cases and almost all of those fees are not being reported.

Criminal Laws Should Be Enforced Equally and the District Attorney Should Do Her Job

A Harris County grand jury just indicted two Sheriff Sergeants for tampering with a government recordbecause they falsified jail inspection reports. Those two law officers did not personally profit from theirfalse reports and their real crime was allowing a mentally disabled prisoner to rot in his own filth forweeks. If the District Attorney can go after those two law men, why can’t the D.A. investigate politicallypowerful fellow Republicans who made small fortunes from what they did at the expense of tax payers? I cannot say if the crime of tampering with a government record was for sure committed by Gary Pollandor Alicia Franklin, but I have provided documents they signed which certainly create the suspicion thattheir billing for tax payer dollars could not possibly have been accurate. Polland and Franklin may havebeen merely sleazy instead of criminal and there may be very good reasons why vague aspects of the law

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on CPS appointments and the wording of the county pay vouchers might prevent criminal charges. However, the matter should at least be investigated.

I know that the District Attorney is not doingher job and investigating my criminalcomplaints. If the District Attorney’s officewas interested, shouldn’t I have beencontacted in the many months since I filedcriminal complaints against Alicia Franklinand Gary Polland? I wrote the DistrictAttorney about Alicia Franklin in November2014 and the hundreds of invoices that Iobtained on Franklin’s fees still sit in a boxin my office because the D.A. never askedfor them.

Judge Franklin now calls herself Judge Franklin York, because she just married lawyer Doug York, whohimself is a power political endorser in Republican primaries. York (a former cop) helps run the “Police,Inc.” organization that purports to endorse political candidates on behalf of law officers. D.A. Andersonwill certainly want the support of “Police, Inc.” to win her Republican primary next year.

I provided the District Attorney’s office with the name and contact information for a lawyer (a staunchRepublican incidentally) whose client supposedly can prove (with a recording) that Gary Polland visitedher for a CPS home visit that the mother claims lasted less than 30 minutes but Polland billed the county4.2 hours. Yet, the District Attorney has never contacted that lawyer or her client or asked for herrecording of Polland.

District Attorney Devon Anderson is likely to face a Republican primary opponent next year and she isgoing to count on Polland to endorse her next year. That should be reason alone for Anderson to recuseherself from investigating Polland.

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Polland, while supposedly under investigation by Anderson's office, has already started singing Ms.Anderson's praises in his political newsletter, something the DA will need to fend off a primarychallenger.

Devon Anderson’s campaign finance reports shows that she pays Gary Polland to advertise in hispolitical mailers.

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Shouldn’t the District Attorney recuse herself in a case involving someone she does business with?

The National District Attorneys Association “National Prosecution Standards - Third Edition” states inrule 1-3.1:

A prosecutor should not hold an interest or engage in activities, financial or otherwise, thatconflict, have a significant potential to conflict, or are likely to create a reasonable appearanceof conflict with the duties and responsibilities of the prosecutor’s office.

Rule 1-3.3(d) says:

The prosecutor should excuse himself or herself from any investigation, prosecution, or othermatter where personal interests of the prosecutor would cause a fair-minded, objective observerto conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in anobjective manner may be compromised.

Ironically, in 2013, Devon Anderson’s then husband, Mike Anderson, recused the Harris County DistrictAttorney’s office from investigating or prosecuting three police officers because his wife, attorneyDevon Anderson, had once represented a cop who was a witness in the case. The Houston Chroniclereported on February 13, 2013:

The recently elected [Mike] Anderson decided the office should not participate in the prosecutionbecause his wife, a defense lawyer, represented an officer who was involved in the March 24,2010, incident but not charged with a crime, said Julian Ramirez, the chief of the districtattorney's division that investigates and prosecutes wrongdoing by police officers.

"It's a no-win situation," Ramirez said after Wednesday's hearing. If the cases end with guiltyverdicts, defense lawyers could claim prosecutors knew something because Devon Anderson,the district attorney's wife, was involved in the defense, he said. If juries acquit the officers,critics could say prosecutors were not motivated because the elected district attorney's wife hada vested interest in the case.

Devon Anderson should do what the Republican District Attorney of Collin County recently didregarding his friend Attorney General Ken Paxton and recuse herself “to avoid any potentialappearance of impropriety arising from [her] business and personal relationship” with GaryPolland. I attach to this paper a copy of the motion filed this month by Collin County District AttorneyGreg Willis to recuse himself because he was personal friends with Ken Paxton and had a businessrelationship with him. The D.A. there did the right thing and asked for a special prosecutor (in Texascalled a “prosecutor pro tem”) to be appointed to investigate whether Attorney General Paxton violatedState securities laws.

This Scandal Is a Problem The Republicans Should Do Something About

Many local Harris County Republican elected officials are scared of Gary Polland, but they should standup for what is right against Polland and D.A. Anderson if they truly believe in these Republicanprinciples:

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! Our government should be efficient and transparent and should use tax dollars wisely.

! "Insider" power brokers should not be allowed to manipulate or profit from government.

! Criminal laws should be enforced equally on the average citizen as well as well-connected bigshots.

! Our criminal justice system must BE fair and APPEAR fair to the public it serves and protects.

! Abused and neglected children should be properly protected by dedicated professionals whoperform their duties imposed by law and who do not immorally profit from the CPS system.

There will soon come a time when changing demographics makes Harris County politically competitiveand the corrosive effect of a power broker like Gary Polland who actually profits from his politicalinfluence will be a political liability for Republicans.

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