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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26811
Experience:  Began practicing law in 1992
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I am currently in a guardianship battle in Texas which has

Resolved Question:

I am currently in a guardianship battle in Texas which has been hindered by defamation. I am now going pro se because no attorney wants to deal with this case after speaking to the ad litem (which is why I say defamation). She refuses to speak to me. The judge refuses to speak to me. I requested a written statement of evidence that substantiates his decisions but he has not responded even to my second request. He will talk to the attorneys who have been on this case, he talks to the ad litem, and he even spoke with my brother and sister. Is it legal for him to do this to me?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

Did you have an attorney earlier in the case?

JD 1992 :

Also, when you state " I requested a written statement of evidence that substantiates his decisions" exactly how did you do that and at what stage of the proceeding?

Customer:

Yes, I had 2 attorneys. they withheld just as much info from me as anyone else.

Customer:

I sent a letter to the judge, then a second request several weeks later. This was in aug/sept of last year. At what stage? we had a hearing in july '12.

JD 1992 :

Were you represented at the time you sent the letter? Also, was it a letter or a motion, with a copy sent to everyone else invovled?

Customer:

not attorney at that time. was a letter. i don't remember if I sent a copy to the ad litem, but I did let her know that I did it. One of his 'clerks' sent a response about not accepting letters without letting everyone else know (can't think of the legal name right now) but I responded to her saying I'm not trying to influence him - just want a statement substantiating his decision.

JD 1992 :

What they likely told you was it was an ex parte communication, which are expressly forbidden.

Customer:

right, but i didn't consider that to be ex parte since the ad litem knew about it.

Customer:

i have tried to include both in any communication.

JD 1992 :

That's an incorrect assumption. Are there additional parties besides the ad litem?

Customer:

if you mean attorneys, no.

JD 1992 :

Any other parties whether representing themselves, appearing through an attorney, etc.

Customer:

the state school ??

JD 1992 :

Who is representing them?

Customer:

basically, the ad litem.

Customer:

according to her statement, she has been counselling them on what they can and can't do per the judge's instructions.

JD 1992 :

The Ad Litem should only be representing the proposed ward. If the state school is a party they must have an attorney to be in the case. If they don't have an attorney then they are nor a party.

JD 1992 :

She is probably approaching the line where she is in a conflict of interest.

Customer:

I sincerely XXXXX XXXXX

JD 1992 :

Her duty is to the ward and the court. Absolutely no duty to the school.

Customer:

exactly my point.

JD 1992 :

If you are going to represent yourself you are held to the same standard as an attorney. That means you must be familiar with the Rules of Civil Procedure and the Probate Code.

JD 1992 :

Hold on just a sec and I'll get you links to those.

Customer:

there was an attorney from DADS in our last teleconference, but that is the first I heard of her. there was also one in the second hearing, but it seemed he was acting in coordination with the ad litem.

JD 1992 :

You need to figure out who they were and see if they have entered an appearance. if not, you woudl object tot hem being a part of it without entering an appearance/

Customer:

what about my request for hearing? is he allowed to sit on it for all this time while he's "studying the case"?

JD 1992 :

The Rules of Civil Procedure are at http://www.supreme.courts.state.tx.us/rules/trcphome.asp

JD 1992 :

Yes, there is nothing in the rules that mandate a judge sets a hearing in a specific time period.

Customer:

I would really like to get them both off this case. If I appeal the recusal, where would I file?

JD 1992 :

Also, as to your letter requesting his basis, in the Rules of Civil Procedure there is a section about a Request for Findings of Fact and Conclusions of Law. However, that is generally only available after a final hearing on the case and it is primarily used to establish the basis for the ruling for an appeal.

JD 1992 :

In the court of appeals for your area. Each court goes to a specific court of appeals, although occasionally a court can go to either of two of them.

JD 1992 :

Have you done any case law research on how to recuse a judge?

Customer:

OK, I'll start there after I read the codes. I've done a little research but not any case law. Should I start looking there too? If I had known that I was going to treated like a convicted felon, I would have gone to law school 5 years ago.

JD 1992 :

Yes, you absolutely must do everything a lawyer would do. If you don't know something for sure look it up. There is a good, inexpensive e-book on legal research at http://www.lessonsinlaw.com/the-guerrilla-guides-to-the-law/ . It tells you how to do the research, explains the basics, and also provides a link to a website that has a legal search engine and is free. It is part of Google but hardly anybody knows it is there and it has things that you can't find in the regular google search.

Customer:

Court reporter - I know for a fact that the transcripts have been editted. I don't know if it can be proved technologically. Where should I start there? I have contacted many different groups with no satisfactory answer. I sent an email to Curtis Stuckey just the other day asking if he would have any interest in the defamation lawsuit.

JD 1992 :

Usually a court proceeding is recorded on a tape as well as transcribed. You could get those or ask that they be sent up on appeal as well if you end up having to appeal. Curtis doesn't take a lot of cases any more and usually they were civil rights cases. It is almost impossible to find a lawyer to take a defamation case in Texas unless you are willing to pay $10k up front. They are too hard to prove damages on and then too hard to collect if you do prove them.

Customer:

I have so much proof of them putting false statement in their records, the latest lie they concocted was that someone saw me trying to take pics of my niece's records (which I can get copies of anytime), and that one was made up by the second-in-command at the school! Guess I'll have to file it myslef. I have copies of the transcripts which is how I know they were altered. "Ms. Osburn, you will not go to the media again, or you might be held in contempt of this court" was reworded. There are omissions in the 2nd transcript, and I'm waiting for the 3rd to come any day now. I can't believe courts can get away with this stuff.

Customer:

thanks for talking. I'll start reading and you will probably be hearing from me again.

JD 1992 :

Best wishes to you on this. If you need me on another question just start it with FOR JD 1992 and I will pick up as soon as I see it. I am online for at least a few minutes every day.

Customer:

thanks. have a good weekend.

JD 1992 :

Also, please don't forget to leave a Positive Rating, of course I'd suggest Excellent, so I get credit for my work.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26811
Experience: Began practicing law in 1992
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