II. Introduction
In 1929 the Texas Legislature created a privileged political perquisite that only is bestowed upon lawmakers who practice law. Invoking this “legislative-continuance” perk, a lawmaker who is an attorney of record in a Texas court case can postpone case proceedings during a legislative session. In fact, lawmaker-lawyers can stay these legal proceedings for more than six months—from 30 days before a legislative session until 30 days after it ends.
This perk’s defenders argue that, since lawyer-lawmakers cannot adequately devote themselves to clients during legislative sessions, they should not be penalized for serving in Texas’ part-time legislature. Critics counter that this perk—once created—bred abuse. It is one thing if a lawmaker hired for his or her legal expertise invokes a continuance. It is quite another when a client hires a lawyer-lawmaker with no relevant experience to stall a case. Delay is a legal tactic that has been deployed, for example, by wealthy defendants seeking to outlive plaintiffs with scarce resources. Texas’ legislative-continuance law lacked effective safeguards to stop lawmakers from brokering their continuance powers to parties seeking court delays. Continuance abuses long have frustrated Texas judges, at least one of whom complained that the high volume of continuance trafficking effectively established a market price for them.1
For years each biennial, regular legislative session has spawned new media reports of possible continuance abuses. The Texas Observer reported in 1999 that Sen. Chris Harris (R-Arlington) obtained continuances on behalf of two nursing homes defending themselves from resident-abuse lawsuits.2 The Observer reported that case records revealed very modest participation by Sen. Harris. Apart from delaying proceedings, his main contribution was to back the defense’s disingenuous—and ultimately failed—argument that the legislature did not intend for state regulatory reports to be used as evidence in nursing-home lawsuits.3
Then-Rep. Juan ‘Chuy’ Hinojosa (D-McAllen) was 2001’s continuance poster boy. He filed continuances on behalf of defendants in two lawsuits involving victims of Ford-Firestone rollovers. Firestone hired this lawmaker just before the trials were scheduled to begin.4 In denying that Firestone hired him solely as a delay tactic, the lawmaker acknowledged the existence of a legislative-continuance market. Hinojosa said he turned down offers from two other clients that just wanted to use him to delay litigation.5 Later that session, the defense in yet another Ford-Firestone death case hired Rep. Terry Keel (R-Austin) on the eve of trial. Keel is an established criminal attorney who lacked experience litigating product-liability cases.
In 2001 Texans For Public Justice (TPJ) filed Texas Public Information Act (TPIA) requests asking the 62 lawmakers who then were members of the Texas Bar (34 percent of the legislature) to disclose all the legislative continuances that they had filed since 1998. Just 14 members (23 percent) responded positively by disclosing continuances or saying that they had not sought any. The other 48 lawyer-lawmakers (77 percent) either did not respond (37 percent) or failed to provide responsive information (40 percent). Most respondents who refused the disclosure request used variants of a sentence that insiders said was drafted by the Office of the Legislative Counsel. That sentence said, “There are no records in this office that meet your request.”
TPJ believed that TPIA governed legislative continuances, regardless of where they were produced or physically stored. TPJ believed that TPIA applied because legislative continuances are an ex-officio perk that is only available to attorneys serving in the legislature. To set a continuance-disclosure precedent, TPJ filed a lawsuit in state district court in Austin in February 2002. That lawsuit singled out then-Rep. Rick Green (R-Dripping Springs), whose TPIA response said, “After consulting the services of the Office of the Attorney General, it is my understanding that I am under no requirement to comply.” No other lawmaker had cited the attorney general. If the attorney general had formulated an opinion on continuance disclosure, TPJ wanted to disclose that, too.
Rep. Green’s selection as TPJ’s test-case defendant was serendipitous. Rep. Green quickly settled TPJ’s lawsuit by agreeing to disclose his continuances—including a wonderfully self-serving one. Rep. Green had obtained a continuance a year earlier in Rick and Judy Neill v. Rick and Kara Green. After the Neill family bought a leaky home built by a Rick Green company, they filed suit to recover $23,000 in damages from this lawmaker. Representing himself in court, Rep. Green secured a continuance to stall a lawsuit that named him personally. As a pro se attorney, Rep. Green illustrated the need for continuance disclosure. But his legal settlement left TPJ in need of a new defendant to establish a disclosure precedent. Meanwhile Rep. Green failed to obtain a different kind of “legislative continuance”—when voters threw him out of office in November 2002.
Prompted by media reports that three lawmakers had obtained at least six continuances on behalf of corporations that marketed dangerous drugs, TPJ again invoked TPIA in February 2003, asking these three lawmakers to disclose all of their continuances. Reps. Ruben Hope (R-Conroe) and Aaron Pena (D-Edinburg) complied. But then-Rep. Gabi Canales (D-Alice) responded with the magic words: “There are no records in this office that meet your request.” TPJ filed suit six weeks later to compel this lawmaker to disclose all of her legislative continuances.
Newly elected Canales reportedly had obtained at least three continuances for Fen-Phen defendant Wyeth.6 Indeed, Rep. Canales—who had nil experience with complex drug litigation— actually got the drug giant two delays in one case. Hiring Rep. Canales allowed Wyeth to successfully petition for the recusal of District Judge Terry Canales on the grounds that he should not hear a case litigated by his daughter.7 Rep. Canales later invoked this legal clout in an effort to discourage TPJ’s lawsuit. Her attorney told TPJ’s counsel that Rep. Canales would seek a venue change to her home turf, where TPJ’s lawsuit would be found frivolous and TPJ would be forced to pay the defense’s legal costs. 8
During pretrial discovery, TPJ established that Rep. Canales’ distinction between her legislative office and her law office was a nebulous one. Rep. Canales acknowledged to TPJ that her legislative district office and her law office shared the same address at 1600 E. Main in Alice, Texas. Two of the three workers employed in Rep. Canales’ law office also received payments from her political campaign for “canvassing” and other services. Yet Rep. Canales still argued that the legislative continuances produced by her law office were off limits to her legislative office.
During pre-trial preparations, Governor Perry signed into law a 2003 reform bill (HB1606) that explicitly requires lawmakers to publicly disclose legislative continuances. Having effectively won a two-year disclosure battle, TPJ offered to drop its lawsuit. Instead, Rep. Canales continued to pursue a counterclaim against TPJ, claiming that its lawsuit was “groundless” and filed for “harassment.” Her attorney said she only would dismiss her counterclaim if TPJ paid all legal costs and publicly stated that the lawmaker never had an obligation to disclose her continuances. As the reform that would clarify this disclosure obligation awaited the governor’s signature, a state trooper pulled over Rep. Canales on the night of June 7 for speeding through her beloved Jim Wells County with a defective headlight. The officer arrested the lawmaker after finding open bottles of Johnny Walker and Crown Royal whiskey in her car. Voters removed Rep. Canales from office five months later.
1. In a 1999 concurring opinion (988 S.W.2d 808) involving a legislative continuance obtained by Rep. Rene Oliveria, then-San Antonio appeals Judge Tom Rickhoff wrote, “I must confess that I am predisposed to be against this legislative perk, for reasons completely outside this record. In Bexar County during the 1970s legislative continuances were so common they enjoyed a set price.”
2. "Senator Harris for the Defense,” Texas Observer, April 16, 1999.
3. “The Defense Rests,” Texas Observer, May 14, 1999.
4. “Lawyers Allege Legislative Continuances Used To Delay Tire Trials,” Texas Lawyer, January 29, 2001.
6. “Last-minute Legislative Continuance Frustrates Plaintiffs’ Lawyers,” Texas Lawyer, December 16, 2002.
8. Canales’ attorney, Will Pierson of Royston, Rayzor, Vickery & Williams, brought up his client’s father when he informed TPJ’s counsel that he would seek a venue change from Austin to Alice. “I don’t want to threaten you,” Pierson said, “but Gabi Canales and her father are very powerful people in Jim Wells County.” Pierson then warned that a court in that county would force TPJ to pay the defense’s legal costs for a frivolous lawsuit.