Federal judge to decide whether to remand case against Harris County judge back to state court

By Gabriel Neves | Feb 6, 2019

HOUSTON – As the U.S. Senate considers the Guardianship Accountability Act, a federal judge in Houston is considering the responses to an order for supplemental briefing in a case against a Harris County judge over the 2014 death of a woman in a nursing home.

U.S. District Judge Lee H. Rosenthal, on the bench of the U.S. District Court for the Southern District of Texas, issued the briefing on Jan. 14 in the lawsuit filed by Sherry Johnston against Harris County Probate Judge Christine Butts and David Dexel.

The order stated that the case presented some state-law issues that were unresolved.

“Dexel and Johnston were involved in guardianship proceedings before Judge Butts in the Harris County Probate Court," Rosenthal said. "Under Texas law, Johnston was an interested person in that proceeding.” 

The judge ordered both parties to explain whether the case should be remanded to the 253rd Judicial District Court for Liberty County in regards to the state-law issues by Jan. 28.

Both parties responded within the set deadline.

Johnston's attorney stated in a pleading that “the court’s identification of the questions at stake here and acknowledgment that federal court is not the best forum to decide them on behalf of the State of Texas is further argument for remand to the 253rd District Court of Liberty County, Texas from which the case was removed.”

As previously reported by the SE Texas Record, Johnston sued Butts in 2016 over allegations that her elderly mother, Willie Jo Mills, suffered broken bones and a rapid, preventable decline, which contributed to malnutrition and her death in a nursing home when Mills was a ward of the state under guardianship.

"A ward is typically a senior citizen experiencing cognitive decline or a younger adult with physical or developmental disabilities," the SE Texas Record previously reported.

Rosenthal allowed Johnston to proceed in federal court against Butts in the adult guardianship claim.

The press release stated that "before her death, Johnston’s mother, Ms. Mills, was among the estimated 48,468 Texans conscripted to live under the thumb of a court-appointed guardian in 254 counties, according to the Office of Court Administration, and once appointed by a probate judge, guardians are empowered to sedate the guardianized citizen with physician-prescribed psychotropic drugs, to deny the citizen choice of food, health insurance, medical care and even visits with friends, disability advocates, adult children and other concerned loved ones by imposing visitation costs and residency in locked care centers."

While the case is being considered, the Senate Finance Committee in Washington, D.C. is evaluating the proposed Guardianship Accountability Act before making a final decision regarding the financial impacts of the law, that could, per the release, "impact the 98 million Americans nationwide that are expected to reach age 65 and older by 2060."

The Guardianship Accountability Act was introduced by U.S. Sen. Susan Collins of Maine on Nov. 28, 2018.

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