When court cases get held up by Legislature
Session again to grapple with ethics of continuancesMonday, March 5, 2007
By KAREN BROOKS / The Dallas Morning News
AUSTIN – Nearly two years after Tab Dotson died in a pipeline explosion in Wise County, the negligence case his relatives filed against the energy company that owns the pipeline has yet to go to court. And they'll have to wait even longer because they're up against an attorney who happens to be a state representative.
A month before the March 20 trial date, Rep. Phil King, R-Weatherford – hired to defend EnCana from the lawsuit in February – used a much-debated legislative privilege to delay it until the summer.
Attorneys for the family say Mr. King is using his political office to keep his clients out of court. Mr. King counters that the delay was necessary for other reasons and that the plaintiffs are putting political pressure on him so he will persuade the Canadian energy company to settle.
The case crystallizes the debate over "legislative continuances" used by lawyer-legislators to delay cases while they're in session. For more than 75 years, Texas law has required judges to allow a legislator to delay proceedings in which the lawmaker represents one of the parties, if the Legislature is in session. Not all of them use the delay, but it's available to the estimated one-third of lawmakers who are also lawyers.
Critics say it leads to abuse by corporations who hire lawmakers simply for the built-in trial delays. In 2003, the state began requiring lawmakers to disclose these continuances to ethics officials.
Dripping Springs Democrat Patrick Rose, a House committee chairman and practicing lawyer, said he filed a bill to kill the practice after years of stories surfacing over its misuse.
Supporters, though, say the practice is necessary because legislators, who make just $7,200 a year, need to be able to make a living outside Austin.
Curtailing the continuances would restrict the client's ability to hire the attorney he or she wants, said Jay Harvey, president of the Texas Trial Lawyers Association.
And some lawmakers are looking to expand the privilege beyond lawyer-legislators. A bill by Rep. Ryan Guillen, D-Rio Grande City, would allow lawmakers to delay court appearances in lawsuits until after a session, even if the lawmaker isn't an attorney.
Advocacy groups say judges should be given authority to deny continuances based on how long the lawmaker's been on the case, whether he or she is the only attorney in the case, and whether the lawmaker has background on the issue.
Tighter rules may have stopped former Rep. Gabi Canales, a Democrat from Alice, from delaying lawsuits against the maker of a diet drug who hired her immediately after her election – but before her first legislative session – in spite of her lack of history in such cases, said Craig McDonald, executive director of Texans for Public Justice, a watchdog group that sued Ms. Canales over the continuances.
The story made national headlines, and she lost her bid for re-election after one term.
From September 2003 to May 2006 – the first 2 ½ years of disclosure of the practice – 32 lawmakers filed 431 continuances. The high number is partly because lawmakers spent so much time in Austin in special sessions and had to postpone their cases more frequently, advocates and lawmakers say.
As of last month, 16 lawmakers had filed a few dozen legislative continuances in connection with this session – and the ones with the highest number appear to be dealing with traffic tickets or divorce cases or representing plaintiffs in years-long class-action suits.
"If you're a sole practitioner and you do 'street law,' that's OK," Mr. McDonald said. "If you are a hired gun that a corporation or special interest comes in to stop a proceeding against them, that looks like it could be abuse."
Jason Stephens, the attorney representing the Dotson family, says that's exactly what the energy company is doing.
Mr. King, the lawmaker, joined the case in mid-February, shortly after the defendants brought in a Houston law firm in January. A few days later, he obtained the 90-day delay.
Mr. King was "never even mentioned" in connection with the case until the family's attorneys declined to settle the case or go along with the delay request, Mr. Stephens said.
The lawmaker said he filed the delay because the opposing attorneys had asked a judge to disqualify him and he couldn't attend the hearing on that motion.
The case probably would have gotten a delay without him, Mr. King said, because EnCana had changed law firms in January and would have been given more time to prepare for the trial. The Houston firm hired Mr. King because he had done work for them in the past and needed a local attorney, he said.
