Now that incumbent Harris County Family Court Judge Denise Pratt is in a runoff, we thought it would be a good time for another look at Pratt's bizarre gag order of January 2013.
It appears to be a blanket order barring any party or attorney with such a pending case from talking to the media, or even discussing the case via "Twitter, Facebook, personal blogs, YouTube, Flickr, email or other social media." Anyone violating the order could be found in contempt of court, and wind up jailed and/or fined. We have never seen anything like it.
It's a curious document of unclear provenance. It doesn't resemble a traditional court order prohibiting extrajudicial statements. For one thing, it's headlined "'GAG' ORDER," which is a lay, not legal, term.
It also doesn't cite a specific case, either by cause number or party names. Instead, it states: "The Court, on its own motion, hereby makes the following order in all SAPCR [suits affecting parent-child relationship] cases."
The confusion could have been avoided if Pratt, or a representative of her court, responded to our requests for clarification when we first wrote about the order. But Pratt never responded to those requests.
Attorney Greg Enos -- Pratt's most vocal critic -- tells us via email that "attorneys were given the blanket gag order in her court and told it applied to ALL cases with kids in her court."
In his February 2013 newsletter, Enos wrote that when he first got a copy of the gag order, he couldn't get any clarification from Pratt's court.
"The problem is that no one knows if the gag order is in effect or, if it is, why the First Amendment has been suspended," he wrote, adding later, "It seems that the 'gag' order has been applied to Judge Pratt's staff because no one in her court will talk to me about the order or explain which cases it applies to or whether it is in effect. I have e-mailed Judge Pratt directly, but I have not received any reply, so apparently she is also gagged by her own order."
But Pratt's attorney, Terry Yates, says it only pertained to one case -- one involving a "local football star" -- and that both parties agreed to the order. He just doesn't know which football star. (Texans wide receiver Andre Johnson was sued by his ex-girlfriend in August 2012, but Harris County District Clerk Spokesman Bill Murphy tells us that the Johnson case was sealed by an unrelated order).
Yates explained in an email that "It clearly wasn't drafted or intended to be [a] standing order or applied to every SAPCR case in her court. To indicate otherwise would be disingenuous."
The language about "all" custody cases is irrelevant, according to Yates, who explains that "regardless of what the top of [the order] says, the controlling writing in the body of the order specifically references 'this case' -- meaning the specific case it was written to control. If it was written to control all cases, it would say 'in any and all cases,' and it doesn't say that.'"
This order is especially troublesome given that Pratt's courtroom appears plagued with record-keeping problems. In 2013, Enos and other family law attorneys accused her of backdating records. The Harris County District Attorney's Office investigated and a grand jury no-billed. But a February 2014 Chron article suggests Pratt may again be under investigation. (The story states that the DA's Office could not confirm or deny the existence of an investigation). Pratt was also admonished by a higher court for allowing a custody case to linger. And according to Enos, that wasn't an isolated case. Yet if any of those parents expressed their frustrations in a Tweet, in a Facebook thread with friends, or in an interview with a sympathetic radio talk show host -- as Pratt did with KTRH's Matt Patrick in February -- they could have faced contempt charges.
In May 2013, a three-judge panel of the 14th Court of Appeals issued a partial writ of mandamus, chastising Pratt for not ruling on a parent's visitation motion for over ten months. The judges wrote that "a parent's right to access his child is a fundamental liberty interest more precious than property rights."
The appellate judges didn't tell Pratt how to rule, they just told her to rule.
We sought an opinion from Houston defense attorney Brian Wice, whose successful nixing of a gag order in a highly publicized criminal case in 2007 resulted in an appellate decision with an in-depth exploration of state and federal case law regarding gag orders and freedom of speech. (The defendant was Ashley Benton, a 16-year-old charged with stabbing a 15-year-old boy to death. In 2009, after a mistrial, she pleaded guilty to aggravated assault with a deadly weapon and was given five years' deferred adjudication).
"Did this gag order come from Gag Orders R US?" asks Wice, who also suggests that the order "has more holes than Kim Kardashian's head."
He adds, "This purported gag order may be the most poorly drafted I've seen....And whether it applies to one case, or whether it applies to a thousand is, to me, of little moment." (He also explains that the proper legal term for a gag order is "order restricting extrajudicial statements.")
We asked Wice specifically about the line "makes the following order in all" custody cases. Could that just pertain to an individual case?
"Sometimes I have trouble with English as a second language, but I don't think this is one of them," he says.
Still, Yates shrugs off the gag order as old, insignificant news.
He told us in an email that, "You can try to create a story here but there really isn't one."
But there is.
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There are parents with cases before Pratt who are afraid to talk because of that gag order, and neither the judge who issued the order, nor her defense attorney, can say what case -- if any -- it applies or applied to or how long it is in effect. Is this order on standby -- is it something Pratt can whip out if another parent complains about a case languishing for ten months?
Yates tells us, "I sincerely doubt anyone is going to stick their neck out and say that that order was enforced in all SAPCR cases in the 311th [court] because it wasn't."
We know he's right on at least one count: what parent would be willing to risk upsetting the judge who can decide how often that parent can see their child? What parent would "stick their neck out," as Yates says.
Which, it appears, is precisely the point.