CAUSE NOS.

997 & 1061

THE STATE OF TEXAS IN THE 51" DISTRI\ :
v. COURT OF "0
.r.
WARREN STEED JEFFS COUNTY, TEXAS
AMENDED MOTION FOR RE-HEARINGIRE-CONSIDERATION OF
DEFENDANT'S AMENDED MOTION TO RECUSE TRIAL JUDGE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES WARREN STEED JEFFS, Defendant by and through his
attorney, EMILY MUNOZ DETOTO, and respectfully files this Amended Motion for
Re-HearinglRe-Consideration of Defendant's First Amended Motion to Recuse Trial
Judge, in the above referenced and styled cases.
I.
PROCEDURAL mSTORY
On Monday, June 13, 2011, the parties appeared for a hearing on Defendant's
First Amended Motion to Recuse Trial Judge. Defendant's First Amended Motion to
Recuse Trial Judge, alleged, among other things, that the Court's non-verbal conduct
during previous trials of FLDS Church members indicated that the Court had a severe
personal bias against the FLDS Church and its members and because of such severe
personal bias, any member of.the FLDS will never receive a fair trial in front of Judge
Barbara Walther. The Honorable John Hyde presided over said hearing. After testimony
from 8 witnesses and arguments from Counsel, the Honorable John Hyde denied
Defendant's Amended Motion to Recuse Trial Judge, on June 14, 20011. (See attached
written opinion from The Honorable Judge Hyde, heretofore marked as Exhibit 1).
II.
This motion is based on the following:
During the recusal hearing held on June 13,2011, Defendant, Mr. Warren Steed
Jeffs sought to have the trial Judge, Barbara Walther recused from presiding over the
above referenced cases because said Judge had a personal bias or prejudice against the
Defendant and the FLDS, however, there exists crucial facts andlor pertinent questions
that are left un-answered as to Judge Walther's ability to sit as a neutral and detached
jurist in the above referenced cases. Defendant asks this Court to re-consider her
decision to not recuse herself, or alternatively asks the Honorable Judge Hyde to
reconsider and re-hear Defendant's Amended Motion to Recuse Trial Judge. Defendant
submits that there remains strong grounds for recusal that were not thoroughly developed
during the first recusal hearing that, had they been developed, would have exposed Judge
Walther's bias against Mr. Jeffs and the FLDS. Said issues of concerns andlor actions
taken by Judge Walther, and or grounds for recusal that yet need to be developed include.
but are not limited to the following:
1. In June of 2008, after Judge Walther authorized the raid of the YFZ Ranch,
her home was under guard after Utah and Arizona authorities warned of
"enforcers" from the alleged sect. See USA Today, June 11, 2008. It goes
without saying that if the Judge felt it was necessary to be guarded by law
enforcement from members of the FLDS, there must remain a question as to
whether Judge Walther harbors any bias, prejudice, or even fear of Mr. Jeffs,
and members of the FLDS that will affect her ability to be a neutral and
detached jurist, or if said experience was of such a nature as to engender bias
andlor prejudice against Mr. Jeffs and the FLDS although the FLDS and Mr.
Jeffs have no history, at all, of violence, but to the contrary have been the
victims of persecuting zeal of both religious and political ;bias since the
restoratioJ} of the Gospel of Jesus Christ as revealed through Joseph Smith,
Jr.
2. In June of 2008, Judge Walther herself authorized, by signing the warrant
that was used as the basis for raiding the YFZ Ranch. Hence, Judge Walther
possessed knowledge of the alleged facts and circumstances surrounding the
above cases and the other cases that came before her. By authorizing the
warrant, Judge Walther, in essence, made a judgment as to the truthfulness
and veracity of the person who called in to report the alleged offense. and
made a judgment as to whether or not probable cause existed. The fact that
Judge Walther was the judge who authorized the issuance of the warrant that
caused the YFZ Ranch to be searched, coupled with the fact that the
Defendant has filed a motion seeking to suppress the proceeds of the raid on
the YFZ Ranch, creates an almost impossible situation for Defendant and
makes it more likely than not, that the Defendant does not have any
meaningful chances in prevailing on said Motion to Suppress Evidence and
Defendant submits that this certainly gives an appearance of partiality and
bias on the part of Judge Walther. Litekey v. United States, 510 U.S. 540
(1994).
3. Judge Walther, in granting the Motion to Change Venue, moved Mr. Jeffs'
case from to Tom Green County, Texas. It is interesting to note that there are
several counties that surround Schleicher County, yet Judge Walthers chose
to move Mr. Jeffs' case to Tom Green, a county where she currently resides,
and a county where a jury recently convicted and sentenced a member of the
FLDS to 75 years in prison. Based upon change of venue to Tom Green
County. it cannot be said that Judge Walthers does not appear to harbor bias
or prejudice against Mr. Jeffs and the FLDS.
4. Judge Walther issued the order authorizing the removal of over 400 children
from tl1e YFZ Ranch, but said decision was overturned by the Third Court of
Appeals and the Texas Supreme Court, and it was determined that Judge
Walther abused her discretion in issuing said order.
The Memorandum Opinion dated May 22, 2008. stated, in pertinent part:
The evidence adduced at the hearing held April 1718, 2008, was
legally and factually insufficient to support the findings required
by section 262.201 to maintain custody ofRelators' children with
the Department. Consequently, the district court abused its
discretion in/ailing to return the Relators I children]3 10 the
Relators. (See attached opinions from the Third Court of Appeals
and the Texas Supreme Court, heretofore attached as Exhibits
2&3).
However, despite this fact, Judge Walther continued to interject herself
and her wishes into retum.agreements between CPS and the parents of the
children who were forcibly removed from the YFZ Ranch, which delayed the
reunion between the children and their parents un-necessarily. The Judge's un
willingness to follow the Supreme Court's ruling, and instead attempt to impose
extra return-conditions surely gives the appearance that Judge Walther harbors a
bias or prejudice against Mr. Jeffs and the FLDS.
5. Debra Brown, head ofTom Green County CASA stated in an article
published in the San Angelo Standard Times on March 29,2009, that she
received a call from Judge Barbara Walther on April 3, 2008 (prior to the
execution of the search warrant on the YFZ Ranch) wherein Walther
stated, "There has been a report of child abuse at the compound," Brown
said Walther told her, "I've signed a warrant for CPS and law enforcement.
They're going to check on some young ladies. There may be possible
removals." This pre-emptive and extra-judicial call to the local women's
shelter indicating that there might be removals from the YFZ Ranch shows
a pre-disposition to believing the allegations are true, and therefore, is
favoritism towards the State and a bias and prejudice against the
Defendant and the FLDS, thus creating more than the appearance that
Judge Walther was no longer acting as a neutral and detached Judge. (See
article printed in the San Angelo Standard Times. March 28, 2009, "Texas
Child Advocates Believe System Failed After FLDS Raid," heretofore
attached as Exhibit 4).
6. On April 15, 2008, Diane Wilson, the District Attorney Investigator for Tom
Green County issued a memorandum to unknown individuals which included
dossiers of at least 5 so-called "Enforcers" profiled as potentially dangerous,
. which she received from Utah and Arizona Authorities. Sheriff Doran was
obtaining color photographs of the individuals named in the memorandum and
said photos and dossiers were to be delivered to individuals "ASAP." (See
attached Exhibit 5).
7. On April 5, 2008, FLDS members Lyle Jeffs, Merril Jessop, and Isaac Jeffs
filed emergency motions to stay the illegal search and desecration of the
Temple at the YFZ Ranch. In the emergency motion, the parties identified to
Judge Walther the Sacred and important nature of the Temple. The motion
specifically stated in pertinent part:
"The temple is one ofthe holiest sites in the community to the religious
denomination living there. Members... consider it a desecration ofone of
their holiest sites for a non-member to enter the temple. Similar to the
concept ofun-ringing a bell, how would law enforcement propose to un
desecrate the temple in a community should the search later be found to
have been illegal"
However, on April 5, 2008, Barbara Walther refused to stay the search of the
Temple, and consequently on April 6, 2008, at approximately 6:00 p.m., a
helicopter hovered over the Temple, and by approximately 7:30 p.m., armed
snipers and an armored personnel carrier surrounded the Temple. Within 30
minutes, officers entered the Temple site, and desecrated the Temple, against the
fervent protests and pleas of the FLDS men.
On April 9, 2008, Judge Walther held a Pre-trial Hearing for Cause No. M08-001
S and Cause No. M08-002-S to consider the Emergency Motion to Stay, but the
search and desecration of the Temple had already occurred, rendering many of the
most vital points contained in the motion moot.
1
ill.
ARGUMENT AND AUTHORITIES
Both the Texas and United States Constitutions guarantee a party an impartial and
disinterested tribunal. Metzger v. Sebek, 892 S.W.2d 20, 37-38 (Tex.App.-Houston [1
st
Dist. Writ denied). In both civil and criminal cases, motions to recuse are governed by
18a and 18b of the Texas Rules of Civil Procedure. Arnold v. State, 853 S.W.2d 543,
544 (Tex.Crim.App. 1993). Pursuant to Rule 18b, "A Judge shall recuse himself in any
proceeding, in which: (a) his impartiality might reasonably be questioned; [or] (b) he has
a personal bias or prejudice concerning the subject matter or a party, or personal
knowledge of disputed evidentiary facts concerning the proceedings " TEX. R
CIV. PROC. 18(b)(2). (emphasis added).
Partiality, bias, and prejudice are inherent in due process, which requires that a
judge be neutral and detached. Abdygapparova v. State, 243 S.W.3d 191, 208
(Tex.App.-San Antonio 2008, pet. refd); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1983).
"Partiality," refers to favoritism that is ''wrongful or inappropriate." Liteky v. United
States, 510 U.S. 540,552 (1994). "Bias" and "prejudice" have been construed to connote
a favorable or unfavorable disposition or opinion that is somehow wrongful or
inappropriate, either because it is undeserved ....or because it is excessive in degree." Id.,
I See Reporters Record of Pretrial Hearing for Cause No. M 08-001 S and 002, Dated April 9, 2008.
- ....
510 U.S. at 552. The inquiry into whether recusal is appropriate centers on objective
criteria using a "reasonable person" standard. Abdygapparova. 243 S.W.3d at 198.
~ ' T o require recusal, a judge's bias must be extrajudicial and not based upon in
court rulings." Girderv. Boston Co., 773 S.W.2d 338,346 (Tex.App.-Dallas 1989, writ
denied) (citing United States v. Grinnel Corp., 384 U.S. 563, 583 (1966. Opinions
fonned by the judge on the basis of facts introduced or events occurring during
proceedings do not constitute a basis for a recusal motion unless they display a deep
seated favoritism or antagonism that would make fair judgment impossible. Ludlow v.
DeBerry, 959 S.W.2d 265, 271 (Tex.App.-Houston [14th Dist.] 1997, no pet) (citing
Litekey v. United States, 510 U.S. 540 (1994); see also Kniatt v. State, 239 S.W.3d 910,
920 (Tex. App. -Waco 2007, no pet).
A movant need not prove that a judge is actually partial or biased to merit recusal;
rather it is the "appearance" that matters. Liteky, 510 U.S. at 558. Indeed, due process
requires recusal when "there is a serious risk of actual bias based on objective and
reasonable perceptions." Caperton v. A.T. Massey Coal Co. Inc., 129 S.Ct. 2252,2263
(2009).
In this case, the denial of Defendant's Amended Motion to Recuse Trial Judge
and therefore allowing Judge Walther to preside over Defendant's upcoming jury trial,
will deprive Defendant or a fair trial in violation ofTexas Rule of Civil Procedure 18b for
the following reasons:
A. Judge Walther's Impartiality Might Be Reasonably Questioned.
In detennining whether Judge Walther's impartiality may be questioned, the question
becomes, whether a reasonable member of the public, knowing all the circumstances
involved, would harbor doubts as to the impartiality of Judge Walther with respect to the
FLDS and Mr. Warren Jeffs. TEX. R. CIV.P. 18B(2)(a); Kemp v. State, 239 S.W.2d 910
(Tex.App. Houston [14th dist.] 2007). In this case, the answer is YES. Based upon the
actions of Judge Walther it is clear that she has repeatedly displayed a prejudice against
Mr. Warren Jeffs and the FLDS.
B. Public Policy Requires the Judge Walther Be Removed:
The integrity of a court is called into question when a judge is partial, biased,
prejudiced, or creates a reasonable perception of such. "Public policy demands that a
Judge act with absolute impartiality." CNA Ins. Co. v. Sheffey, 828 S.W.2d 785, 792
(Tex.App.-Texarkana 1992, writ denied). "Judicial decisions rendered under
circumstances that suggest bias or prejudice or favoritism undermine the integrity of the
courts, breed skepticism and mistrust, and thwart the principles on which the judicial
system is based." Id.
Judge Walther's actions have demonstrated bias and partiality and based upon the
above referenced actions, as well as the fact that Judge Walther has presided over the
following proceedings:
1. The 14 Day Hearing;
2. Prior Suppression Hearings for various FLDS defendants;
3. The Raymond Jessop Trial;
4. The Alan Keate Trial;
5. The Michael Emack Trial;
6. The Merril Leroy Jessop Trial;
7. The Lehi Jeffs Trial;
8. The Abram Jeffs Trial; and; (see attached affidavit from Ms. Stephanie Goodman,
counsel for Mr. Abram Jeffs, heretofore marked as Exhibit 6).
9. The Keith Dutson! Jr. Trial,
Defendant submits it is abundantly clear that Judge Walther has lost her objectivity in all
cases involving FLDS and Mr. Jeffs, and not only "appears" biased and impartial, but
actual is.
THEREFORE, the Defendant respectfully requests that the Judge of this Court Re
consider its ruling on Defendant's Amended Motion to Recuse Trial Judge, and set this
matter for a hearing so that the issues as stated above can be considered and new
evidence can be heard.
Attorney at Law
T.B.C. NO. 0079876
770 South Post Oak Lane, Suite 620
Houston, Texas 77056
(713) 227-2244
Fax (713) 552-0746
CO-COUNSEL FOR DEFENDANT
WARREN STEED JEFFS
CERTIFICATE OF SERVICE
I, the undersigned attorney, hereby certify that a true and correct copy of the
above and foregoing delivered to Eric Nichols via email delivery on this the 15th day of
July, 2011.
EMILY MUNOZ DETOTO
VERIFICATION
STATE OF TEXAS
SCHLEICHER COUNTY
Before me, the undersigned notary, on this day personally appeared Emily Munoz
Detoto, the affiant, a person whose identity is known to me. After I administered an oath
to affiant, affiant testified:
"My name is Emily Munoz Detoto. I am capable of making this verification. I
have read Defendant's Amended Motion for Re-HearinglRe-Consideration of
Defendant's Amended Motion to Recuse Trial Judge and based upon: my interviews
with members of the FLDS, interviews with attorneys involved in the 14 day hearings,
newspaper reports regarding the raid at the YFZ Ranch, my review ofthe transcript ofthe
recusal hearing, and other court documents, the facts stated in this motion are true and
correct to the best ofmy knowledge."
Sworn to and subscribed before me by Emily Munoz Detoto on this the of
July, 2011.

EDMUND LORIN BARLOW SR
Notary Public in and for e State of TEXAS
Notary Public. Stlte of
My Commission Expires
o.c.mber 03, 2013
My Commission Expires:
12---?J-/?
,)
CAUSE NOS. 997 & 1061
THE STATE OF TEXAS IN THE SlIt DISTRICT
v.
COURT OF SCHLEICHER
WARREN STEED JEFFS COUNTY, TEXAS
ORDER
Defendant's Amended Motion for Re-HearinglRe-Consideration of Defendant's
Amended Motion to Recuse Trial Judge is hereby:
__GRANTED, said motion is set for a hearing on the ___day of
___,2011.
DENIED
SIGNED on ___________...........;, 2011.
Judge, 51 st District Court
CAUSE NOS. 990,997 & 1017,1061
THE STATE OF TEXAS IN THE 51
sT
DISTRICT COURT
v.
WARREN STEED JEFFS SCHLEICHER COUNTY, TX
NOTICE OF PRESENTMENT
PLEASE TAKE NOTICE: That the defendant Warren Steed Jeffs hereby files this
Amended Motion for Re-Hearing/Reconsideration of Defendant's First Amended Motion
to Recuse Trial Judge and related papers with the Court seeking an order recusing Judge
Barbara Walthers.
PLEASE TAKE FURTHER NOTICE: That this Motion will be heard on
Monday, July 18, 2011 at 9:00 o'c:lock a.m. at the Schleicher County Courthouse, in
Attorn .at Law
TBe No. 0079876
770 South Post Oak e, Suite 629
Houston, TX 77056
713-227-2244
Fax: 713-552- 0756
Co-Counsel for Defendant,
Warren Steed Jeffs
July 15,2011
Exhibit 1
6)
JOHNG.HvoE
238
TH
DISTRICT COURT
MIDLAND COUNTY COURTHOUSE (432) 688-4380
(432) 6884933 - Fax
500 NORTH LORAINE. SUITE 800
MIDLAND, TExAS 79701
June 14,2011
Mr. Jeff Kearney
Attorney at Law
One Museum Place
3100 West 7th Street, Suite 420
Fort Worth, Texas 76107
Mr. Eric Nichols
Attorney at Law
515 Congress, Suite 1750
Austin,Texas 78701
Re: State of Texas v. Warren Steed Jeffs, No. 997 and 1061
Dear Counsel:
This letter sets out the decision of the Court denying the Oefendanfs motion
to recuse Judge Barbara Walther and outlining findings made from the evidence
presented during the recusal hearing on June 13.
The motions ftled in each pending cause (No. 997 and No. 1061) are
identical, each containing the same allegations addressed in this letter .
.,NON-VERBAL CONDUCT OF JUOGE
The motions allege that Judge Walther's "non-verbal conduct during
previous trials of FLOS Church members indicates the Court has a sever personal
bias against the FLOS Church and its members."
The only testimony offered in support of this allegation came from three
defense attorneys whose clients, members of FLOS, were convicted and assessed
prison terms by juries in trials over which Judge Walther presided.
.,'..
Mr. Eric Nichols
Mr. JeffKeamey
Page 2
June 14.2011
The testimony characterized Judge Walther generally as a strict judge,
always in control of court proceedings and demanding of attorneys before her.
The testimony described the judge's demeanor as impatient, sarcastic and
condescending toward defense counsel in previous FLDS trials, punctuated by
body language conveying her displeasure towards the defense.
No evidence was presented that Judge Walther was ill-disposed toward
defense counsel on the basis of any extra-judicial source.
In Uteky v. U.S., 114 S. Ct. 1147 (1994) the Supreme Court held that a
judge's impatience, formed from evidence heard during a trial, does not suffice for
recusal unless it is so sever as to deny a defendant a fair trial.
The reasonable person test of recusal is not fairly evaluated through the
eyes of advocacy but more properly through the eyes of a neutral objective
obseIVer. Testimony of Department of Human Resources workers extolling the
even-handed wisdom of the judge could not overcome the objective perception of
one who had no stake in the outcome. The evidence fails under the standard of a
reasonable person, knowing all the circumstances.
SEARCH AND ARREST WARRANTS
The motions allege Judge Walther issued "a Search and Arrest Warrant
authorizing the search of the entire YFZ Ranch", court orders "reversed by the
Court of Appeals in Austin."
No evidence was offered to support an inference that the appellate court
decision engendered any animosity in Judge Walther toward defense counselor
their clients.
PERSONAL KNOWLEDGE OF JUDGE WALTHER
The motions allege that Judge Walther "has personal knowledge of disputed
evidentiary facts concerning this criminal case which were gained from her
participation in several family law cases in which Defendant [WARREN STEED
JEFFSJ was not a party ..."
Knowledge gained by a judge during judicial proceedings does not constitute
personal knowledge on which recusal may be based.
Mr. Eric Nichols
Mr. JeffKeamey
Page 3
June 14,2011
SCHEDULING OF SUPPRESSION MOTION
The motions allege the scheduling of the Defendant's motion to suppress [on
July 26 after jury selection on July 25J indicates that "the Court has already
concluded it will overrule any motion to suppress filed by the defense."
No evidence was offered in support of this allegation. Texas law permits
such scheduling. Even so, court rulings are addressed by an appeal, not by
preemptive recusal in anticipation of a court's ruling
UNUSUAL AMOUNT OF SECURITY
The motions allege that the extraordinary and unusual amount of security
during the trial of Raymond Merrill Jessop, an FLDS Church member, led to
"rumor and speculation that the reason for the increased security was that the
Court (Judge Walther) believed a member of FLDS Church had attempted to run
her off the road as she drove home from court one night" during an FLDS Church
related case.
Five law enforcement officers testified that there was heightened security;
that extra precautions were taken for Judge Walther, including surveillance of her
home and a DPS escort to and from El Dorado each day of trial.
There was no evidence of who was responsible for the near collision on the
highway and no investigation surfaced to link the driver to FLDS.
Defendant relies on U.S. v. Greenspan, 26 F.3d 1001 (10
th
circuit, 1994) in
support of recusal. The Greenspan case involved a direct threat on a U.S. District
Judge stemming from a defendant the judge was to sentence. In response to the
threat on his life the judge expedited the sentencing despite the request for a
conference by defense counsel appointed only two days earlier. Under such
circumstances the appellate court held that recusal was necessary.
The Court in Greenspan also pointed out that recusal would not have been
warranted if the threats were made only in an attempt to obtain a different judge,
to delay the proceedings, to harass, or for other vexatious or frivolous purposes (p.
1006).
In Texas a defendant can elect to have the jury assess punishment, unlike
the federal system where the judge alone assesses punishment.
Mr. Eric Nichols
Mr. JefTKeamey
Page 4
June 14,2011
In the case of Mr. Jeffs and the FLDS, there was no persuasive evidence that
the heightened security measures were initiated by Judge Walther or that she
participated in security briefmgs or that she demonstrated any bias toward FLDS
Church members on the basis of the highway incident. The speculation by Mr.
Jeffs of Judge Walther's bias is misplaced.
The motions for recusal are found to be without merit and are denied by the
court.
Si
JGH/ch
Exhibit 2
Page 1
LexisNexis
1 of I DOCUMENT
In re Sara Steed, et aL
NO. 03-08-00235-CV
COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN
2008 Tex. App. LEX1S 3652
May 22. 2ooS. Filed
SUBSEQUENT mSTORY: Related proceeding at In re
Bradshaw. 2008 TeX. App. LEXlS 3746 (lex. App. Austin.
May 22. 2008)
Writ of mandamus denied In re Tex. Dep't of Family &
Protective Servs., 255 S. W.3d 613,2008 Tex. LEXIS 510
(lex. May 29, 2(08)
PRiORmSTORY: [1]
ORIGINAL PROCEEDING FROM SCHLEICHER
COUNTY.
COUNSEL: For RELATOR: Mr.' Robert W. Doggett.
TEXAS RIO GRANDE LEGAL AID, Austin, TX.
For REAL PARTY IN iNTEREST: Mr. Gary L. Banks,
TEXAS DEPARTMENT of PROTECTIVE &
REGULATORY SERVICES, San Angelo, TX; Mr. Duke
E. Hooten, Mr. Michael C. Shulman, Mr. Tervor A.
Woodruff, OFFICE of GENERAL COUNSEL, TEXAS
DEPARTMENT FAMILY & PROTECTIVE
SERVICES, Austin, Tx.
JUDGES: Before Chief Justice Law, Justices Pemberton
and Waldrop.
OPINION
MEMORANDUM QPINION
PER CURIAM
This original mandamus proceeding involves the
temporary custody of a number of children who were
removed from their homes on an emergency basis from
the Yearning For Zion ranch outside of Eldomdo, Texas.
I The ranch is associated with the Fundamentalist Church
of Jesus Christ of Latter-Day Saints (FLDS), and a
number of families live there. Relators are thirty-eight
women who were living at the ranch and had children
taken into custody on an emergency basis by the Texas
Department of Family and Protective Services based on
allegations by the Department that there was immediate
danger to the physical health or safety ofthe children.
The Department over 450 children
from their homes on the Yearning For Zion ranch
over the course of three days. This proceeding
does not involve parents .of all of the children
removed.
Relators seek a writ of mandamus requiring the
district court to vacate its tempomy orders 2 in which it
named the Department the temllOrary sole managing
conservator of their children. 3 complain that the
Department failed to [2J meet iUi burden under section
262.201 ofthe Texas Family Code!to demonstrate (1) that
there was a danger to the physical health or safety of their
children, (2) that there was an urgent need for protection
ofthe children that required the immediate removal ofthe
children from their parents, or (3) that the Department
made reasonable efforts to eliminate or prevent the
children's removal from their parents. Tex. Fsm. Code
Ann. 262.20] (West Supp. 2007). Without such proof,
2008 Tex. App. LEXIS 3652, *2
Relators argue, the district court was required to return
the children to their parents and abused its discretion by
failing to do so.
2 The temporary orders reviewed in this
proceeding were issued following the hearing held
April 17-18. 2008. and were signed the week of
April 21, 2008.
3 Because temporary orders in a suit affecting a
parent-child relationship are not subject to
interlocutory appeal under the family code,
mandamus review is appropriate. Dancy v.
Daggett, 815 S. W.2d 548, 549 (I'ex. 1991); In re
Vernor, 94 S. W.3d 201, 210 (I'ex. App.-Austin
2002. or/g. p ~ .
Removing children from their homes and parents on
an emergency basis before fully litigating the issue of
whether the parents should continue [*3] to have custody
ofthe children is an extreme measure. It is. unfortunately,
sometimes necessary for the protection of the children
involved. However, it is a step that the legislature has
provided may be taken only when the circumstances
indicate danger to the physical health and welfare of the
children and the need for protection of the children is so
urgent that immediate removal of the children from the
home is necessary. See kl. 4 Section 262.201 further
requires the Department, when it has taken children into
custody on an emergency basis, to make a showing of
specific circumstances that justifY keeping the children in
the Departments temporary custody pending full
litigation of the question of permanent custody. Unless
there is sufficient evidence to demonstrate the existence
of each of the requirements of section 262.201 (b), the
court is required to return the children to the custody of
their parents. Tex. Fam. Code Ann. 262.201 (b).
4 Section 262.201 provides, in relevant part, as
fonows:
(a) Unless the child has already
been returned to the parent,
managing conservator, possessory
conservator, guardian, caretaker, or
custodian entitled to possession
and the temporary order, [*4) if
any, has been dissolved, a full
adversary hearing shall be held not
later than the 14th day after the
date the child was taken into
Page 2
possession by the governmental
entity.
(b) At the conclusion of the
full adversary hearing, the court
shall order the return ofthe child to
the parent, managing conservator,
possessory conservator, guardian,
caretaker, or custodian entitled to
possession unless the court finds
sufficient evidence to satisfy a
person of ordinary prudence and
caution that:
(1) there was a
danger to the
physical health or
safety of the child
which was caused
by an act Of failure
to act of the person
entitled to
possession and for
the child to remain
in the home is
contrary tb the
welfare of the child;
(2) the urgent
need for protection
required the
immediate removal
of the child and
reasonable efforts,
consistent with the
circumstances and
providing for the
safety of the child,
were made to
eliminate or prevent
the child's removal;
and
(3) reasonable
efforts havt been
made to enable the
child to return
home, but th,ere is a
substantial risk of a
continuing danger if
Page 3
2008 Tex. App. LEXIS 3652, *4
the child is returned
home.
(d) In detennining whether
there is a continuing danger to the
physical health [*5] or safety of
the child, the court may consider
whether the household to which
the child would be returned
includes a person who;
(1) has abused or
neglected another
child in a manner
that caused serious
injury to or the
death of the other
child; or
(2) has sexually
abused another
child.
Tex. Fam. Code Ann. 262.201 (West Supp.
2007).
In this case, the Department relied on the following
evidence with respect to the children taken into custody
from the Yearning For Zion ranch to satisfy the
requirements of section 262.201:
9 Interviews with investigators revealed
a pattern of girls reporting that "there was
no age too young for girls to be married";
o Twenty females living at the ranch
had become pregnant between the ages of
thirteen and seventeen;
o Five of the twenty females
identified as having become pregnant
between the ages of thirteen and seventeen
are alleged to be minors, the other fifteen
are now adults;
o Of the five minors who became
pregnant, four are seventeen and one is
sixteen. and all five are alleged to have
become pregnant at the age of fifteen or
sixteen; 5
o The Department's lead investigator
was of the opinion that due to the
"pervasive belief system" of the FLDS,
[*6] the male children are groomed to be
perpetrators of sexual abuse and the girls
are raised'to be victims ofsexual abuse;
o All 468 children 6, were removed
from the ranch under the theory that the
ranch community was uSSeI1tially one
household comprised of extended family
subgroups" with a single, common belief
system and there was reason to believe
that a child had been sexually abused in
the ranch "household"; and
o Department witnesses expressed the
opinion that there is a "pervasive belief
system" among the residents of the ranch
that it is acceptable for girls to marry;
engage in sex, and bear children as soon as
they reach puberty, and that this
"pervasive belief system" poses a danger
to the children.
5 One woman is alleged to have become
pregnant at the age of thirteen. She is now
twenty-two years old.
6 This number has fluctuated. It will likely
continue to fluctuate as disputes
regarding the age of certain persons taken into
custody are resolved.
In addition, the record demonstrates the following
facts. which are undisputed by the Department:
o The only danger to male children
or the female children who had not
reached puberty identified by the
Department was the [*7] Department's
assertion that the "pervasive belief
system" of the FLDS comzQunity groomed
the males to be perpetrators of sexual
abuse later in life and tau3ht the girls to
submit to sexual abuse after reaching
-----_..._- - - -_._-_.
Page 4
2008 Tex. App. LEXIS 3652, *7
puberty;
o There was no evidence that the male
children or the female children who bad
not reached puberty, were victims of
se:!(.ua} or other physical abuse or in danger
of being victims of sexual or other
physical abuse;
o While there was evidence that
twenty females bad become pregnant
between the ages of thirteen and
seventeen, there was no evidence
regarding the marital status of these girls
when they became pregnant or the
circumstances under which they became
pregnant other than the general allegation
that the girls were living in an FLDS
community with a belief system that
condoned underage maniage and sex; 7
o There was no evidence that any of
the female children other than the five
identified as having become pregnant
between the ages of fifteen and seventeen
were victims or potential victims of sexual
or other physical abuse;
, 0 With the exception of the five
female children identified as having
become pregnant between the ages of
fifteen and seventeen, there was no
evidence [*8] of any physical abuse or
harm to any other child;
o The Relators have identified their
children among the 468 taken into custody
by the Department, and none of the
Relators' children are among the five the
Department has identified as being
pregnantnrlnors;and
o The Department conceded at the
hearing that teenage pregnancy, by itself,
is not a reason to remove children from
their home and parents. but took the
position that immediate removal was
necessary in this case because "there is a
mindset that even the young girls report
that they will marry at whatever age, and
~ t it's the highest blessing they can have
to have children."
7 Under Texas law, it is not sexual assault to
have consensual sexual intercourse with a minor
spouse to whom one is leg8lly married. Tex. Penal
Code Ann. 22.011 (a), (cj(l), (2) (West Supp.
2007). Texas law allows minors to marry-as
young as age sixteen with parental consent and
younger than sixteen if pursuant to court order.
Tex. Pam. Code Ann. 2.101 (West 2006),
2.102-.103 (West Supp. 2qQ7). A person may not
be legally married to more than one person. Tex.
Penal Code Ann. 25.01 (West Supp. 2007).
The Department argues that the fact that there [9]
are five minor females living in the ranch community
who became pregnant at ages fifteen and sixteen together
with the FLDS belief system. condoning underage
marriage and pregnancy indicates that there is a danger to
all of the children that warrants tI:teir immediate removal
from their homes and parents, and that the need for
protection of the children is urgent. 8 The Department
also argues that the "household":to which the children
would be returned includes persdns who have sexually
abused another child, because the entire Yearning For
Zion ranch community is a "household." See id.
262.201 (d) (2).
8 The Department'!! position was stated
succinctly by its lead investigator at the hearing.
In response to an inquiry as to why the infants
needed to be removed funn their mothers, the
investigator responded, H[\\']OOt I have found is
that they're living under anrumbrella of belief that
having children at a y o ~ g age is a blessing
therefore any child in that environment would not
be safe."
The Department failed to carry its burden with
respect to the requirements ot section 262.201(b}.
Pursuant to section 262.201(b}(l},ithe danger must be to
the physical health or safety of :the child. The [10]
Department did not present any evidence of danger to the
physical health or safety of any male children or ZUly
female children who had not reachd puberty. Nor did the
Department offer any evidence ~ t any of Relators'
pubescent female children were mi physical danger other
than that those children live at the: ranch among a group
of people who have a "pervasive ~ t e m of belief' that
Page 5
2008 Tex. App. LEXIS 3652, *10
condon\lS polygamous maniage and underage females
having children.
9
The existence of the FLDS belief
system as described by the Department's witnesses, by
itself, does not put children of FLDS parents in physical
danger. It is the imposition of certain alleged tenets of
that system on specific individuals that may put them in
physical danger. The Department failed to offer any
evidence that any of the pubescent female children of the
Relators were in such physical danger. The record is
silent as to whether the Relators or anyone in their
households are likely to subject their pubescent female
children to underage maniage or sex. The record is also
silent as to how many of Relators' children are pubescent
females and whether there is any risk to them other than
that they live in a community where there ["'11] is a
"pervasive belief system" that condones maniage and
child-rearing as soon as females reach puberty.
9 The Department's witnesses conceded that
there are differences of opinion among the FLDS
community as to what is an appropriate age to
marry. how many spouses to have, and when to
start having children-much as there are
differences of opinion regarding the details of
religious doctrine among other religious groups.
The Department also failed to establish that the need
for protection of the Relators' children was urgent and
required immediate removal of the children. As
previously noted, none of the identified minors who are
or have been pregnant are children of Relators. There is
no evidence that any of the five pregnant minors live in
the same household as .the Relators' children. 10 There is
no evidence that Relators have allowed or are going to
allow any of their minor female children to be subjected
to any sexual or pbysical abuse. There is simply no
evidence specific to Relators' children at all except that
they exist, they were taken into custody at the Yearning
For Zion ranch, and they are living with people who
share a "pervasive belief system" that condones underage
marriage [*12J and underage pregnancy. Even if one
views the. FLDS belief system as creating a danger of
sexual . abuse by grooming boys to be pexpetrators of
sexual abuse and raising girls to be victims of sexual
abuse as the Department contends. 11 there is no evidence
that this danger is "immediate" or "urgent" as
contemplated by section 262.201 with respect to every
child in the community. The legislature has required that
there be evidence to support a finding that there is a
danger to the physical health or safety of the children in
question and that the need for protection is urgent and
warrants immedIate removal. [d. 262.201 (b). Evidence
that children raised in this partidular environment may
someday have their physical health and safety threatened
is not evidence that the danger is imminent enough to
warrant invoking the extreme measure of immediate
removal prior to full litigation of the issue as required by
section 262.201.
10 The notion that the entire ranch community
constitutes a "household" as contemplated by
sectJon 262.201 and justifies removing all
children from the ranch community if there even
is one incident of suspected child sexual abuse is
contrary to the evidence. The Department's [*13]
witnesses acknowledged that the ranch
community was divided. into separate family
groups and separate households. While there was
evidence that the living on the ranch
are more communal : than most typical
neighborhoods, the evidence was not legally or
factually sufficient to support a theory that the
entire ranch community W$ a "household" under
section 262.201.
11 The simple met, conce<ted by the Department,
that not all FJIDS familil; are polygamous or
allow their female children to marry as minors
demonstrates the danger of removing children
from their homes based on the broad-brush
ascription of every aspect of a belief system to
every person living among followers of the belief
system or professing to follow the belief system.
Finally, there was no evidencie that the Department
made reasonable efforts to elinlinate or prevent the
removal of any of Relators' childreh. The evidence is that
the Department went to the Yearning For Zion ranch to
investigate a distress call from a sixteen year.:oId girl. 12
After interviewing a number of chjldren, they concluded
that there were five minors who were or had been
pregnant and that the belief of the community
allowed minor [$14] females to mlmy and bear children.
They then removed all of the cbilqren in the community
(including infants) from their homes and ultimately
separated the children from their parents. This record
does not refleet any reasonable effort on the part of the
Department to ascertain ifsome short of removal
and/or separation from parents have eliminated the
risk the Department perceived witl). respect to any of the
children ofRelators.
Page 6
2008 Tex. App. LEXIS 3652, *14
12 The authenticity of this call is in doubt.
Department investigators did not locate the caller
on the ranch.
We find that the Department did not carry its burden
of proof under section 262.201. The evidence adduced at
the hearing held April 17-18, 2008, was legally and
factually insufficient to support the findings required by
section 262.201 to maintain custody of Relators' children
with the Department. Consequently, the district court
abused its discretion in failing to return the Relators'
children 13 to the Relators. The Relators' Petition for Writ
of Mandamus is conditionally granted. The district court
is directed to vacate its temporary orders granting sole
managing conservatorship of the children of the Relators
to the Department. The [*] 5] writ will issue only if the
district court fails to comply with this opinion.
13 The children ref'erre4 to are those children
reflected on Appendix I to Relators' reply brief
and who are still in the custody of the
Department.
Before Chief Justice Law, Justices Pemberton and
Waldrop
Filed: May 22, 2008
Exhibit 3
Page 1
"
.LexisNexis
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
RELATOR
No. 08-0391
SUPREME COURT OF TEXAS
255 S.W.3d 613; 2008 Tex. LEXIS 510; 51 Tex. Sup. J. 967
May 29, 2008, Opinion Delivered
May 29, 2008, Opinion Issued
SUBSEQUENT HISTORY: Released for Publication
July 17, 2008.
PRIOR HISTORY: Schleicher County; 3rd district
(03[#x2011)08[#x2011]00235[#x2011JCV, _ SW3d
_,05[#x2011]22[#x20l1)08)
In re Steed, 1008 Tex. App. LEXIS 3652 (Tex. App.
Austin. May 22. 2008)
COUNSEL: For Texas Department of Family and
Protective Services, RELATOR: Trevor Allen Woodruff,
Duke Elton Hooten, Michael C. Shulman, and Carey D.
Cockerell.
For Sara Steed, REAL PARTY IN INTEREST: Amy
Wan, Robert W. Doggett, Julie Michele Balovich,
Amanda Jane Chisholm, and Douglas W. Alexander.
For Steven J. Wingard, PERSON INTEREST IN CASE:
Steven James Wingard.
For Deborah Keenum, PERSON INTEREST IN CASE:
Deborah Ann Keenum.
For David Samuel Brown. PERSON INTEREST IN
CASE: David Samuel Brown.
For American Civil Liberties Union, AMICUS CURIE:
Lisa Shawn Graybill.
For Jeanette Burney Sullivan, AMICUS CURIE: Jeanette
Burney Sullivan.
For Barbara J. Elias-Perciful, AMIPJS CURIE: Barbara
1. Elias-Perciful
JUDGES: ["""I] JUSTICE O'NEILL filed an opinion
concurring in part and dissenting in Part. in which
JUSTICE JOHNSON and JUSTICE WILLETT joined.
OPINION
[*613) ON PETITION FOR MANDAMUS
PER CURIAM
JUSTICE O'NEILL filed an opinion concurring in
part and dissenting in part. in which JUSTICE
JOHNSON and JUSTICE WILLETT joined.
The Yearning for Zion Ranch is aI,700-acre
complex near Eldorado, Texas, that is home to a large
community associated with the Fundamentalist Church of
Jesus Christ of Latter Day Saints. On March 29, 2008, the
Texas Department of Family Protective Services received
a telephone call reporting that a sixteen-year-old girl
named Sarah was being physically and sexually abused at
the Ranch. On April 3, about 9:00 p.m., Department
investigators and law enforcement officials entered the
Ranch, and throughout the night they interviewed adults
and children and searched for documents. Concerned that
Page 2
255 S.W.3d613, *613; 2008 Tex. LEXIS 510, **1;
51 Tex. Sup. 1. 967
the community had a culture of polygamy and of
directing girls younger than eighteen to enter spiritual
unions with older men and have children, the Department
took possession of all 468 children at the [*614] Ranch
without a court order. 1 The Department calls this "the
largest child protection case documented in the [**2]
histruy of the United States." It never located the girl
Sarah who was the subject of the March 29 call.
I See TEX FAM. CODE 262.104(a) ("Ifthere
is no time to obtain a temporary restraining order
or attachment before taking possession of a child
consistent with the health and safety of that child,
an authorized representative of the Department of
Family and Protective Services ... may take
possession of a child without a court order under
the following conditions, only; (1) on personal
knowledge of facts that would lead a person of
ordiruu'y prudence and caution to believe that
there is an immediate danger to the physical
health or safety of the child; (2) on information
furnished by another that has been corroborated
by personal knowledge of facts and all of which
taken together would lead a person of ordinary
prudence and caution to believe that there is an
immediate danger to the physical health or safety
of the child; (3) on personal knowledge of facts
that would lead a person ofordinary prudence and
caution to believe that the child has been the
victim of sexual abuse; (4) on information
furnished by another that has been corroborated
by personal knowledge of facts and all [**3] of
which taken together would lead a person of
ordiruu'y prudence and caution to believe that the
child has been the victim of sexual abuse ....It)
The Department then filed several suits affecting the
parent-child relationship ("SAPCRs") 2 requesting
emergency orders removing the children from their
parents and limiting the parents' access to the children.
The Department also requested appointment as temporary
sole managing conservator of the children, genetic
testing, and permanent relief. On April 17-18, the district
court conducted the adversary hearing required by sectio1l
262.201(a) of the Texas Family Code. 3 Subsections (b)
and (c) state in relevant part:
(b) At the conclusion of the full
adversary hearing. the court shall order the
return of the child to the parent ... entitled
to possession unless the court finds
sufficient evidence to satisfY a person of
ordinary prudence and caution that:
(1) there was a danger to
the physical health or safety
of the child which was
caused by an act or failure
to act of the person entitled
to possession and for the
child to remain in the home
is contrary to the welfare of
the child;
(2) the orgent need for
protection the
immediate [**4]
of the child and rea$oD8ble
efforts, consistent with the
circumstances and
providing for the safety of
the child, were lllJlde to
eliminate or prevdIlt the
child's removal; and .
(3) reasonable efforts
have been made to enable
the child to return. home,
but there is a
risk of a continuing danger
if the child is returned
home.
(c) If the court finds sufficient
evidence to satisfY a person of ordinary
prudence and caution that there is a
continuing danger to the physical health or
safety of the child and for the child to
remain in the home is contrary to the
[*615] welfare of the child, ,the court shalJ
issue an appropriate temporary order
under Chapter 105.
The hearing was attended by scords of attorneys for the
parties, attorneys ad litem, guardians ad litem, Texas
Court Appointed Special Advocates (CASA), and many
others. The hearing was conducted in the courtroom in
San Angelo with overflow participants in the city
auditorium. At the conclusion of the hearing, the district
Page 3
255 S.W.3d 613, *; 2008 Tex. LEXIS 5lO, **4;
51 Tex. Sup. 1. 967
court issued temporary orders continuing the
Department's custody of the children and allowing for
visitation by the parents only with the Department's
agreement.
2 See TEX. FAM. CODE 262. 105(a) ("When a
child ["5] is taken into possession without a
court order, the person taking the child into
possession, without unnecessary delay, shall: (1)
file a suit affecting the parent-child relationship;
(2) request the court to appoint an attorney ad
litem for the child; and (3) request an initial
hearing to be held by no later than the first
working day after the date the child is taken into
possession.If).
3 Section 262.20/(a) provides: "Unless the child
has already been returned to the parent, managing
conservator, possessory conservator, guardian,
caretaker, or custodian entitled to possession and
the temporary order, if any, has been dissolved, a
full adversary hearing shall be held not later than
the 14th day after the date the child was taken into
possession by the governmental entity."
Thirty-eight mothers petitioned the court of appeals
for review by mandamus, seeking return of their 126
children. The record reflects that at least 117 of the
children are under 13 and that two boys are 13 and n.
The ages of the other seven, at least two of whom are
boys, are not shown. Concluding that the Department had
failed to meet its burden of proof under section
261.201(b)(1), the court of appeals directed [**6] the
district to vacate its temporary orders granting the
Department custody. In re Steed. S. w'3d 2008 Tex.
App. LEXlS 3652 (Tex. App.-Austin 2008).
The Department petitioned this Court for review by
mandamus. Having carefully examined the testimony at
the adversary hearing and the other evidence before us,
we are not inclined to disturb the court of appeals'
decision. On the record before us, removal of the children
was not warranted. The Department argues without
explanation that the court of appeals' decision leaves the
Department unable to protect the children's safety, but the
Family Code gives the district court broad authority to
protect children short of separating them from their
parents and placing them in foster care. The court may
make and modify temporary orders "for the safety and
welfare of the child", 4 including an order "restraining a
party from removing the child beyond a geographical
area identified by the court". S The court may also order
the removal of an alleged perpetrator from the child's
home 6 and may issue orders to assist the Department in
its investigation. 7 The Code prohibits interference with
an investigation, 8 and a person who relocates a residence
or conceals a child [**7] with the intent to interfere with
an investigation commits an offense. 9
4 TEX. FAM. CODE 105.001(a); see id.
262.205.
5 Id. 105.001(a)(4).
6 Id. 262.1015.
7 Id. 261.303(b)-(c).
8 Id. 261.303(0).
9 Id. 261.3032.
While the district court must vacate the current
temporary custody orders as directed by the court of
appeals, it need not do so without granting other
appropriate relief to protect the children, as the mothers
involved in this proceeding concede in response to the
Department's motion for emergency relief. The court of
appeals' decision does not conclude the SAPCR
proceedings.
Although the SAPCRs tovolve important,
fundamental issues concerning parental rights and the
State's interest in protecting children, it is premature for
us to address those issues. The Department's petition for
mandamus is denied.
Opinion issued: May 29, 2008
CONCUR BY: Harriet O'Neill (In Part)
DISSENT BY: Harriet O'NeiU (In Part)
DISSENT
[*616] JUSTICE O'NEILL joined by JUSTICE
JOHNSON and JUSTICE WILLETT, concurring in part
and dissenting in part.
In this case, the Department ofFamily and Protective
Services presented evidence that "there was a danger to
the physical health or safety" of pubescent girls on the
Yearning for Zion (YFZ) Ranch [ * ~ 8 ] from a pattern or
practice of sexual abuse. that "the urgent need for
protection required the immediate removal" of those
girls, and that the Department made reasonable efforts,
considering the obstacles to informiwon-gathering that
Page 4
255 S.W.3d 613, *616; 2008 Tex. LEXIS 510, **8;
51 Tex. Sup. J. 967
were presented, to prevent removal and return those
children home. TEX FAM. CODE
As to this endangered population, I do not agree with the
Court that the trial court abused its discretion in allowing
the Department to retain temponuy conservatorship until
such time as a permanency plan designed to ensure each
girl's physical health and safety could be approved. See
id. 263.101-.102. On this record. however, I agree that
there was no evidence of imminent "danger to the
physical health or safety" ofboys and girls
to justify their removal from the YFZ Ranch, and to this
extent I join the Court's opinion.ld. 262.20J(b)(1).
Evidence presented in the trial court indicated that
the Department began its investigation ofthe YFZ Ranch
on March 29th, when it received a report of sexual abuse
of a girl on the property. On April 3rd,
the . Department entered the Ranch along with
law-enforcement personnel and [9] conducted
nineteen interviews of girls aged seventeen or under, as
well as fifteen to twenty interviews of adults. In the
course of these interviews, the Department learned there
were many polygamist families living on the Ranch; a
number of girls under the age of eighteen living on the
Ranch were pregnant or had given birth; both interviewed
girls and adults considered no age too young for a girl to
be "spiritually" married; and the Ranch's religious leader,
"Uncle Merrill," had the unilateral power to decide when
and to whom they would be married. Additionally, in the
trial court, the Department presented "Bishop's
Records"-documents seized from the Ranch-indicating
the presence of several extremely young mothers or
pregnant "wives" 1 on the Ranch: a
"wife" with a child, a pregnant "wife,"
two pregnant "wives," and a
who had conceived a child. The
testimony of Dr. William John Walsh, the families' expert
witness, confirmed that the Fundamentalist Church of
Jesus Christ of Latter Day Saints accepts the age of
"physical development" (that is, first menstruation) as the
age of eligibility for "marriage." Finally, ["10] child
psychologist Dr. Bruce Duncan Perry testified that the
pregnancy of the underage children on the Ranch was the
result of sexual abuse because children of the age of
fourteen, fifteen, or sixteen arc not sufficiently
emotionally mature to enter a healthy consensual sexual
relationship or a "mani.age."
1 Although referred to as "wives" in the Bishop's
Records, these underage girls are not legally
married; rather, the girls are "spiritually" married
to their husbands, typically in polygamous
households with multiple other "spiritual" wives.
Subject to limited defenses, a person who
"engages in sexual contact" with a child younger
than seventeen who is not his legal spouse is
guilty of a sexual offense under the Texas Penal
Code. See TEX. PENAL. CODE 21.11
Those who promote or assist such sexual contact,
see id. 7.02(a)(2), or cause the child to engage
in sexual contact, see id. 21.11(a)(1), may also
be criminally liable.
Evidence presented thus indicated a pattern or
practice of sexual abuse of pubescent [617] girls, and
the condoning of such sexual abuse, on the Ranch
2--evidence sufficient to satisfy a "person of ordinary
prudence and caution" that other such girls were [11]
at risk of sexual abuse as well. III 262. 201 (b). This
evidence supports the trial court's finding that "there was
a danger to the physical health or safety" of pubescent
girls on the Ranch. Id. 262.201(b)(1); see id. 10].009
('''Danger to the physical health or safety of a child'
includes exposure of the child to loss or injury that
jeopardizes the physical health or safety of the child
without regard to whether there has been an actual prior
injury to the child."); cf. Tex. Dep't of Human Servs. v.
Boyd. 727 S. W.2d 531. 533 (Tex. 1987) (affIrming the
termination of parental rights for "endanger[ing] ... the
physical well-being of [a.] child," and holding: "While we
agree that 'endanger' means more than a threat of
metaphysical injury or the possible ill effects of a
less-than-ideal family environment, it is not necessary
that the conduct be directed at the child or that the child
actually suffers injury. Rather, 'endanger' means to
expose to loss or injury; to jeopardize. It). Thus, the trial
court did not abuse its discretion in finding that the
Department met section 262.201 (b)(1)'s requirements.
The Family Code defines to include "sexual
conduct harmful to a child's [**12] inental, emotional, or
physical welfare"-including offenses under section 21.11
of the Penal Code--as well as 'failure to make a
reasonable effort to prevent sexual conduct harmful to a.
child." TEX. FAM. CODE In
determining whether there is a "continuing danger to the
health or safety" of a child, the Family Code explicitly
permits a court to consider "whether the household to
which the child would be returned includes a person who
... has sexually abused another child." ld. 262.201(d).
Page 5
255 S.W.3d 613, "'617; 2008 Tex. LEXIS 510, .... 12;
51 Tex. Sup. J. 967
Notwithstanding this evidence of a pattern or practice of
sexual. abuse of pubescent girls on the Ranch, the court of
appeals held-and the Court agrees today-that the trial
court abused its discretion in . awarding temporary
conservatorship to the Department because the
Department failed to attempt legal steps, short of taking
custody, to protect the children. Based on the language of
section 262.201 of the Family Code, I disagree.
Subsections (b)(2) and (b)(3) of section 262.201 require
the Department to demonstrate that "reasonable efforts,
consistent with the circumstances and providing for the
safety of the child. were made to eliminate or prevent the
child's removal," [*"'13] TEX. FAM. CODE
262.201(b)(2), and that "reasonable efforts have been
made to enable the child to return home," id.
262.201(b)(3). The Court suggests, consistent with the
mothers' arguments in the court ofappea1s below, that the
Department failed to adequately justifY its failure to seek
less-intrusive alternatives to taking custody of the
children: namely, seeking restraining orders against
alleged perpetrators under section 262.1015 ofthe Family
Code, or other temporary orders under section 105.001 of
the Family Code. Id. 262.1015,105.001.
However, the Family Code requires 'only that the
Department make "reasonable efforts, consistent with the
circumstances" to avoid taking custody of endangered
children. ld. 262.201 (b)(2). Evidence presented in the
trial court indicated that the actions of the children and
mothers precluded the Department from pursuing other
legal options. When the Department arrived at the YFZ
Ranch, it was treated cordially and allowed access to
children, but those children repeatedly pled "the Fifth" in
response to questions about their identity, would not
identify their birth-dates or parentage, refused to answer
questions about who lived in their homes, [ .... 14] and
lied about their names-sometimes several times.
Answers from parents ["618] were similarly
inconsistent: one mother first claimed that four children
were hers, and then later avowed that they were not.
Furthermore, the Department arrived to discover that a
shredder had been used to destroy documents just before
its arrival.
Thwarted by the resistant behavior of both children
and parents on the Ranch, the Department had limited
options. Without knowing the identities of family
members or of particular alleged perpetrators, the
Department could not have soupt restraining orders
under section 262.1015 as it did not know whom to
restrain. See id, 262.1015. Likewise. it could not have
barred any family member from access to a child without
filing a verified pleading or affidavit, which must identifY
clearly the parent and the child to be separated. See id.
105.001(c)(3) ("Except on a verified pleading or an
affidavit ... an order may not be rendered ... excluding
a parent from possession of or . access to a child. H).
Furthermore, the trial court heard evidence that the
mothers themselves believed that the practice ofunderage
"marriage" and procreation was npt harmful for young
girls; [**IS] the Department's W;itnesses testified that
although the Department "always !,vants kids to be with
their parents," they will only reunlfy children with their
parents after "it's determined that [their parents] know
and can express what it was in theflrst place that caused
harm to their children." This is sqme evidence that the
Department could not have sought to maintain
custody with the mothers. Thus, eviidence presented to the
trial court demonstrated that the Department took
reasonable efforts, consistent !with extraordinarily
difficult circumstances, to protect the children without
taking them into custody. ld.
The record demonstrates that there was evidence to
support the trial court's order as it relates to pubescent
female children. Although I agree with the Court that the
trial court abused its discretion by awarding custody of
male children and pre-pubescent children to the
Department as temporary conservator, I would hold that
the trial court did not abuse its; discretion as to the
demonstrably endangered populatitn of pubescent girls,
and to this extent would grant tbeDepartment's petition
for mandamus. Because the Court does not, I respectfully
dissent.
[**16] Harriet O'Neill
Justice
OPINION DELIVERED: May 29,2008
Exhibit 4
..
Texas child advocates believe system
failed after FLDS raid
The San Angelo Standard-Times/March 28, 2009
By Paul A. Anthony
San Angelo, Texas - A potholder, sand art and the hug of a child: One year later, they are the
simple tokens the three women seated around a conference room table carry with them.
They are reminders of the children for whom they were asked to advocate - and whom they
believe the system failed.
Paulette Schell, a staff member for the Children's Advocacy Center of Tom Green County, still
has the potholder, given to her by a precocious girl who she remembers did not actually like to
cook.
The girl, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, was
returned to her parents in June, and like 437 others, her case has been dismissed by the state's
Child Protective Services agency.
Schell shakes her head.
"She was abrasive," she smiles, gesturing to her colleague, Shirley Davis, and her boss,
advocacy center Executive Director Debra Brown, "just like us."
"You just wonder," she continues. "Will that stay with her?"
The three women make up half the full-time staff of the agency that runs the Court ApPOinted
Special Advocates program for the Tom Green County state district courts. They are the third
party observers appOinted by judges to determine the merit of claims made by CPS and advise
the court on whether children should remain in state care or be returned to their parents.
With all but one child dismissed from the mammoth child-custody case that began with an April
3 raid of the polygamous sect's YFZ Ranch in Schleicher County, the court-aPPointed guardians
finally are free to discuss what they found as they worked with mothers and children at Fort
Concho and the San Angelo Coliseum.
Ripping into CPS for what they described as an inexplicable desire to drop the case as quickly as
pOSSible, Brown and her employees said the agency underestimated in its final assessment the
amount of abuse that took place at the ranch. As well, they said CPS nonsuited children without
adequately determining whether they were truly safe from the prospect of forced underage
marriages.
It's a characterization with which the agency obviously disagrees - but which seems obvious to
Brown.
"At some pOint, CPS decided to tum a corner and just get out," Brown said. "That's when
everybody stopped getting looked at. II
Check on some young ladies
All stories have a beginning, and Debra Brown's naturally begins the afternoon of April 3
t
as CPS
and state law enforcement prepared to drive the 45 miles from San Angelo south to Eldorado.
There they would use a search warrant to gain access to the nearby YFZ Ranch and investigate
telephoned allegations of physical and sexual abuse from a girl calling herself Sarah Jessop.
Brown received a phone call from 51st District Judge Barbara Walther, who had just signed the
warrant.
"There has been a report of child abuse" at the compound
t
Brown said Walther told her. "I've
signed a warrant for CPS and law enforcement. They're going to check on some young ladies.
There may be possible removals."
Brown said they were ready.
The next day, Brown
t
in San Antonio, received periodic updates from Walther, the number of
children increasing with each phone call.
Could Brown's CASA staff handle a dozen children, if necessary, the judge asked initially. Then
the number grew to 35. Then 80 to 100.
Over the weekend, that number kept growing and growing," Brown said.
By Saturday afternoon, April 5, the number was 200.
The advocacy center
l
then sporting a full-time staff of just four and already handling 268
children, scrambled, asking inactive volunteers to come in and help with paperwork and
interviewing the children and parents. Fifty answered the call, and 35 new volunteers were
sworn in.
State and national CASA organizations arrived to provide help and advice about increased
security as staffers received threats over their perceived role in the removal.
Meanwhile, the local guardians crammed the books.
"We're having to learn an entire new culture and religion," Schetl said. "We're reading, talking to
people, asking questions. The amount of research was tremendous."
How do you file this stuff?
Ultimately, CPS removed 468 people - 439 children and 29 women believed at the time to be
children. The 468 people, Davis said, had just 18 last names between them.
Attempting to determine familial relationships proved difficult, as women and children gave
conflicting answers and uniformly refused to say who the children's fathers were.
Siblings also gave different responses about parentage. In part, that was because some had
been reassigned by sect leader Warren Jeffs to different families and, depending on their ages,
different siblings considered different people to be their parents.
"How do you file this stuff?" Brown said. "The Jessops and Jeffs are in three cabinets. Everyone
else is in one.
nThe children had been told, warned, coached not to say who their father was. It took us quite a
while to figure out."
Additionally, CPS allowed the mothers of the removed children to remain
l
an unusual step for
the agency and one the CASA workers said backfired when the mothers began to inhibit efforts
to elicit truthful answers from their children.
"We really wanted the children separate from the mothers and from the older children," Brown
said. "There's a real pecking order there."
"When you tried to talk to one," Davis added, "you were immediately surrounded, and there was
a spokesman."
The guardians pressed CPS and the court to remove the mothers, something that eventually
occurred April 14, leading to a series of tearful media interviews.
Yet when Davis watched news footage of the outraged mothers on television, she noticed
something strange, she said: They weren't the same women with whom she had been working
over the previous week.
"Most of that was just staged," Davis said. "There were some very good mothers, but they
weren't the ones on TV. II
The lack of information and conflicting answers made returning the children to their proper
parents impossible - even if that had been the appropriate course of action
l
Brown said.
On April 18, to end the second day of a marathon hearing on whether the children should
remain in temporary state custody, Brown stood and delivered her recommendation to Walther
with hundreds of FLDS members and attorneys watching in two courtrooms.
The children should stay in custody, Brown said.
The recommendation was exactly what CPS was seeking. But that was a function of parallel
investigations reaching the same conclusions, Davis said, not a rubber-stamping of the agency's
Wishes.
"It happened to be in line with CPS," she said. "Having the information we had, we would never
have recommended that a child go back under those circumstances."
Tensions are high
While the court decisions were going CPS' way, public opinion seemed to be turning against the
agency, fueled by a series of reports filed by staffers with the Hill Country Mental Health/Mental
Retardation center that described poor treatment of women and children at the hands of CPS
caseworkers.
Though not explicitly questioning the truthfulness of the claims, the CASA workers said they saw
none of the alleged inCidents detailed in the reports.
"You've got families in crisis, and tensions are high," Schell said. "I never saw CPS being mean
(or) rude.
"Children are confused and parents are mad, and you had a whole lot in one place."
If CPS failed in its investigation of alleged abuse at the ranch, the women said, it was by caring
too much about public opinion - to the point that the agency, they said, began dismissing cases
indiscriminately.
"What the media says and what the public thinks is a zero in the equation," Brown said. "It
should be what is in the best interests of the child.
"Who cares what Willie (Jessop) says? Who cares what Nancy Grace says? Who cares what
anyone says?"
CPS ultimately said it found 12 girls who were married between the ages of 12 and 15, and that
more than half the families at the ranch had abused or neglected their children.
..
"I thought it was lOw," Brown said of the number of alleged underage brides, adding that CASA
and CPS had identified about 40 families for further Investigation before lead CPS attorney
Charles Childress unexpectedly left the department.
"If (local CPS) had been doing this case, it would have been done completely different," Brown
said, "but it went to Austin, to the bureaucrats.
"The whole about-face was kind of weird."
Davis agreed, adding the departure of another CPS attorney, Jeff Schmidt.
Childress "left, then Jeff left, then so did the plan," she said.
CPS spokesman Patrick Crimmins disagreed.
"Nonsuits occurred only after CPS determined that the parents or other family members took
appropriate action to protect the children from future abuse or neglect," he said.
One year later
Eleven months and 26 days have passed since Walther called Brown, since CPS investigators
drove down a mile-long gravel road in the middle of the West Texas night, since the first girls
answered the first questions about who was their father, who was their husband, whose was
their baby.
The children have been returned, most to the YFZ Ranch, living a lifestyle their court-appointed
guardians are convinced is unhealthy for many of them.
"There were definitely some of the cases where the children shouldn't have been removed and
should have been returned quickly," Davis said. But, she continued, "These are children who
were removed for a reason."
The calls that sparked the raid are now believed to be a hoax. The "Sarah Jessop" who called a
San Angelo battered-women's shelter has never been found. Authorities instead suspect a 33
year-old Colorado woman who has never been charged in the case.
The story may have been false, Brown and her staff say, but it had basis in truth.
"I could give you 20 different girls off the top of my head where that scenario fits," Brown said.
"The only things that have changed from before this happened are the children have been
exposed to the outside world a little bit. The mothers and daughters have been educated in the
law.
"Are they safe?" she continued. "WeB, I don't know. I still have doubts about that."
To see more documents/articles regarding this group/organization/subject click here.
0,:>1.) lallllC r
-
...
I
Exhibit 5
~
HtTH JUDICIAL DmTRK:'T S'ST.IJOICW. DISTRICT

',.
cootm'
IRION ccx.tm' RUNNELS COI1HTY
SCJiI.ICHfR C()UWY TOM GREEN COONT'f
SWtlIHG OOUHTY
TOM GREEN c;ouN1Y
DIANE WILSON
DtSTRICT ATTORNEY INVESTIGATOR
TOM GReEN COlJNTY COURTHOUSE
124 W. BEAUREGARD. SUiTe B
SAN ANGeLO. TEXAS 16903

4-15-08
The following persons were in San Angelo this week to confer about the FLDS cases:
I) Gary Engels, Investigator
Mohave County Attorney
590 S. Central
Colorado City _ AZ
928-8758462 - Colorado City
92853()..()250 - ceIl
928..753-0719 - Kingman
92W7S-848J - Fax
gary.engels@co.mohave.az..us
Mailing Address:
POBox 7000
Kingman, AZ 86402-7000
2) Tuuothy P. Linnins
Assl Attorney General
Criminal Prosecuti.ons Section
1275 W. Washington
Phoenix. AZ 85007
602..542-8421
602542-5991- Fax
timothy,linnins@azag.gQY
They 1a1ked with Asst. DA. ClairNoelke, and advisedt.hallhe following FLDS members
are considered the This means they win probably be the ones who might
intimatG kids and other witnesses, watch foster bomes where kids are placed, bribe
people. appear at court hearings.. and make attempts to contact FLDS children:
Lyle S. Jeffs dob {H-171960
,.
i.
WiUiam Edson Jessop dob
William Roy Jessop dob 10-121968
David S. Allred dob 07()4.1971
Nephi Steed Jeffs dob 969
Sheriff Doran is getting color photos of these people, and Jwill distribute them to you
ASAP,
,
Exhibit 6
'C
~ I t , .....
,
,..... ,..
, ~ .
~
i
. ce in. the areas of
.
.
Ranch and their parsQ.ts'
ofthese peoples
AFFIDAVIT
STATE OF TEXAS

COUNTY OF TOM GREEN
BEFORE ME that undersigned authority on this day perso y appeared STEPHANIE
GOODMAN, who, after being duly sworn did state on his oath as :fi
"I. Stephanie Goodman, have been licensed to practice law' eState ofTexas since
November 1996. My office addmss is 228 West Harris Avenue, S cio, Texas, 76903; my
office telephone number is (325) 6552640. I have concentrated m
criminal and family law. 1was employed with the 51ill and 119
1lt
Ju
Office for approximately 10 years. October 1997 through February 2 07. before I opened my
own practice. I have had many cases in Judge Walthers court on a .
1997. I have had several jury trials as a prosecutor with Judge Wal
that typically she had been more difficult OD the prosecution and rul
the defense. I maintained this beliefunti1 I became involved with th
removal ofchildren from the YFZ Ranch and 1he criminal cases that
men from the FLOS Church in Schleicher County. Texas.
While the raid on the YFZ Ranch was occwnng on Apri14, 8, Judge Walther
summoned as many female attorneys from Torn Green County over t
us that she was signing an Order removing many children from the
custody and she would need to appoint attorney ad litems for these
meeting is there was any information that she knew of where I might
customs, religious practices and culture because I was Dot familiar w ~
d me concern to
was located at the Coliseum in San Angelo, Texas and was being co
children that were under the Order ofRemoval signed by Judge Wal . Her mother had
documentation, a certified copy oCher birth certificate from Nevada.;
years old. After verbally being denied access by the Attorney Ad Li
.Carmen Dusek:, I filed a motion to gain access to the young lady to .
would want me to represent her. During the hearing regarding my tion, [ explained to Judge
I
Walther that this is a typical situation when an individual is in and a fumily member
comes into my office or any other attorney's office seelcing represen . on for a family member.
However, Judge Walther commented that she believed it bordered or
The court room was full ofindividuals I know personally and with
daily basis. My beliefwas that this was a personal attack on my ch
. At the time Sarah
licitation of business.
FillS. One attorney said just read "Under the Banner of Heaven
book and you willieam all you need to know about them." Judge
might be some sources ofinformation and did not persuade othe
SOW'CCS of information about the FLDS, but merely foons ofp r o p ~
meeting seemed to indicate to me that Judge Walther had already m
. hysteria and pnUndice regarding this group ofpeople rather than on
developing during those early days ofthe raid on the YFZ Ranch. D
ofFamily and Protective Services cases involving the removal of
Ranch, I observed, learned or was subjected to seveml incidents th
believe that Judge Walther may not be able to be fair and impartial t
with the FLDS Church. One incident involved me attempting to
Sarah Jessop, whose mother bad come into hire me on beha1f of her
e adecisioil based on
true account ofthe facts
. g the Texas Department
access to a young lady.
.
In reflection that
hich verified she was 18
the Order ofJudge
restriction placed on a defendant's indictment restricting them from
geogmphicallocatiollS. Judge Walther had knowledge that the FLD
might have family in Nevada and. Arizona and that SOtne
7
as in the e ofAbram Harker Jeffs,
were truckers as a fonn ofoccupation. It is my beUefthat these res
men m.erely as a punitive measure and not as any kind of measure to ssure their appearance in
court. Several time I had to obtain penn.ission to allow Abram Jeff's travel outside of Texas. I
was required to give a detailed travel log with the roads and highwa to be traveled and all
denied access to the individual I was attempting to confer with about representation. I
young lady. Shortly after this incident, I was representing one of
and was repeatedly dmrled access to the coliseum v,..here the parent
According to the law enforcement surrounding the Coliseum it
Walther that no one, no1 even attorneys representing parents were
Also before we finished presenting evidence in the 14 Day Heann
parking lot (that is now Julio's Burritos) that had 10 or more tour b
were the same ones that were ultimately used in removing children
that a decision had already been made by Judge Walther to appoint
Family and Protective Services Temporary Managing Conservators
Ranch before the close of the 14 Day Hearing.
I was hired by Abnun Harker Jeffs to represent him in the S
Harker Jeffs. I immediately noticed something different about the
Jeffs' cases as well as the other FLDS men's indictments. Judge W
restriction ofno travel outside the State ofTexas. In all my years 0
Walther as a prosecutor and a defense attorney on criminal matters.
as staying with. their child.
s parked in it. These buses
m the coliseum, indicating
e Texas Department of
fthe children fi:tnn the YFZ
nd conditions on Abram
ther had attached a
'ce under Judge
e not ever seen a
men under indictment
cial District I have never
men were associated with
ce in Schleicher COUllty
.
i
persons Abram Jeffs was to have contact with must be listed with
the State ofTexas. Additionally. Abram. Jeffs was required to call as Ranger Nick Hanna,.
Texas Ranger Brooks Long or Schleicher County Sheriff David D
Texas and upon returning. In all my years of practice in the 51st Ju
known ofa defendant that had to endure such a restrictive proced as a bond oondition, again it
is my belief that this was app1ied as a punitive measure because th
the FLDS Church.
I was aware that on one ofthe previous trials ofan FLDS m
Harker Jeffs, there was an over abundance of law enforcement p
while the trial was being held. I decided as counsel for Abram Jeffs to file a Motion
Requiring a Reduction in Police Presence because I felt that the ov dance oflaw
enforcement presence had a negative effect and statement regarding y client The motion was
denied by Judge Walther without any argument from counsel. Ab Harker Jeffs had never
been convicted ofany criminal offense nor had be ever been charge 'th failure 10 appear in
court,. in fact Judge Walther had knowledge at the time that Abram. xer JeffS returned to the
f
State ofTexas immediately upon learning be had been indicted.
.
While representing Abram Harker Jeffs, it became apparent me that Judge Walther's
rulings were inconsistent with the facts on several occasions. Her t:
stem and aggressive when addressing me or my cO-<XRlnsel; Brando
that the attorneys for the State of Texas were addressed in the same
I
or manner. I never
witnessed Judge Walther to have that tone or to be aggressive with
occasion, I objected to some testimony that the State ofTexas was a: pting to develop as
being in violation of one ofthe defense's Motions In Limine. Judge alther very rudely asked
of voice was consistently
I
motion,l attempted to
a very rude manner, this
oir dire portion ofAbram.
. me to produce a copy ofthe motion. I attempted to comply with h
to make noises and display disSatisfaCti0r with her body language.
behavior by Judge Walther was in front rthe jury. After I found
approach her with the motion and she waved me offwith her hand
also was in front ofthe jury. There were numerous times during th
Jeffs' trial that Judge Walther rolled her eyes or displayed disdain
questioning potential jurors. Also during the voir dire Judge Walth
questioning potentialjurom would oontirlually say "let me see if!
poisoning tho juror'. minds by leading ~ e m to believe that the deli
questions. I objected on the record. but Judge Walther disagreed
1imes during the trial the prosecutors representing the State ofTe
Judge knows where I am going with this'" indicating at least in my .on that there may have
been some form of ex parte oommunication between the State of Te and the judiciary. Only
once did Judge Walther inquire further to attempt to clear up any erstanding that could
have been construed from that statement, 'she never instructed the S
the statement.
After the jury read their decision as to punishment for Ab
enforcement present in the courtroom, the attorneys for the State of as and Judge Walther
were dissatisfied with the jury's decision. We, Brandon Hudson and
congratulated our client and he seemed pleased as well. Immediatel Udge Walther got offthe
i
bench and went to her chambers. It is my beliefthat she was so dis ' isfied with the verdict on
Sberiffhad to bring
ofTexas to quit making
I agreed. with a signing ofa wairer ofconflict by Keith
co-counsel for The State ofTexas v. Keith Dutson, Jr. hmnediate
behavior from Judge Walther that I thought to be unfair,. the same
expressions towards the defense that wa1 not equally applied to th
I
I
Hudson and I filed a Motioo to Change ye:nue after Judge Walther
Green County just a few days before the trial began in The State 0
Judge Walther forced the defense to conduct the hearing after she
Mr. Dutson's case in Tom Green County. During the trial Judge
facial expressions and demeaning tone towards the defense for K.e'
the trial Judge Walther became noticeably upset with me after an a
of one ofthe State of T.... witneosos'1ebecca Musser. an cx-FL
~ second appearance of Ms. Musser on the witness stand. Ms. M
that she had gone to a party at the District Attorney's residence and
while in town with law enforcement members and that she had rece
asked Ms. Musser oftb.e inappropriate relationship with law enforc
The State ofTexas became enraged and Judge Walther seemed to
all took place before the jury was sent out ofthe court room. I was
Walther outside the presence ofthe jury w11at infonnation I had that
that nature, after I supplied my answers Judge Walther immediately
not come back for approximately 30 minutes. I felt that there was
because ofmy valid questioning ofMs. Musser to expose any bias s
the church ofwhich he is associated .
lit Jr. to represent and be
t venue ofthe case in Tom
sive cross-cxaminatioo
member. This was during
r had previously testified
t she had dined often
y divorced her husband. I
ent had led. to her divorce.
e to explain to Judge
uld support a question of
..~
the voir dire process in
e pressure put upon me
I
Before the jury was done deliberBting in State of Texas v.
Walther forced me to represent Abram Jeffs in a Motion F
filed pro se. I bappen to be in Schleicher County a coupJe of week rior, when the same motion
was set for a hearing and :\1r. Jeffs was unrepresented by cotmBel,
Texas did not appear, but it was noted on the record they bad recei
Judge Walther simply re-set the bearing stating to Mr. Jeffs that th tate of had become
confused about the setting. Judge Walther re-set the hearing for th
Dutson, Jr.'s pre-trial hearings in Tom Green County. Again Mr. J
counsel, I stayed in the court room only to observe as my interest
representation of Mr. Jeffs. The State of Texas requested that rbe inted to represent Abram
Jeffs and Judge Walther complied. At the time Judge Walther 1m t I was co-counselon
Keith Dutson's tria) and would not have time to give Mr. Jeffs case e attention it needed. After
repeated objections and a request for a continuance oftwo days b on statements that due to
Mr. Dutson's trial I had no time to prepare, Judge Walther made m
Motion For Free Record bearing while the jury was out deliberating
punishment. The hearing for Mr. Jeff's had to be postponed at one . nt because the jury had a
question on Mr. Dutson's case.
Based on my experience oflitigating criminal cases for 15 y it has become 8pplll"ent
to me that. Judge Walther bas abandoned her role as an independent
advocate for the zealous prosecution ofthe cases involving member
believe that Abram Harker Jeffs and Keith Dutson. Jr. were both de
impartiality displayed by Judge Walther.and after practicing before the last 15 years I have
e time as one ofKeith
sparlc.ed from my previous
esent Mr.leffs in his
a fair trial by the
e e
'th Dutson. Jr . Judge
d notice ofthe bearing.
,


'l" .....
BEFORE ME this """':&=411-- day of July 2011.
I
never seen her display this impartiality during other defendant's tri
the FLDS Church.
I
I
SUBSCRIBED AND SWORN ~