PLAINTIFF’s RESPONSE TO NON-PARTY NORMA THIEME’s OBJECTION TO SUBPOENA, ETC.
Originally Published: Mar 8, 2023 | Republished: Mar. 8, 2023
On March 2, 2023, Plaintiff received a copy of the above filing pertaining to the served witness subpoena for court reporter Norma Thieme aka Norma Duarte (Ms Thieme). The Plaintiff submitted a Motion to Strike the filing on the same day, image no. 106860500 and Notice of Submission, image no. 106866194, set for Monday, March 13, 2023.
The Plaintiff separately responds to the arguments made by Ms Thieme for consideration, should the court be considering denying the Motion to Strike or in advance of any hearing requested;
Plaintiff seeks Ms Thieme’s testimony at the upcoming hearing on March 20, 2023 as she was the attending court reporter for the January 9 hearing. Plaintiff contacted Ms Thieme to obtain a copy of the transcript of that hearing. Plaintiff paid Ms Thieme her private fee for the report (consideration) and timely received the report in response to the contract consummated by email.
As discussed in prior pleadings and responses, Plaintiff seeks to question Ms. Thieme, to reaffirm her email responses confirming there was ex-parte conversations held between counsel and the Judge at the end of the hearing, to which Plaintiff was not a party as he did not attend and as noticed to the court. Plaintiff will question her about that incident.
See; EXHIBIT “EMAIL THREAD BETWEEN MARK BURKE AND NORMA DUARTE, COURT REPORTER, DATED JAN 17, 2023”, incorrectly labeled on the docket as EXHIBIT H, image no. 106462258, Feb 9, 2023.
In response, the County, acting on behalf of privately paid court reporter Ms. Thieme “seeks to Quash the Subpoena for personal appearance and testimony, and to produce documents and audio tapes should be quashed because the testimony and information sought is privileged, neither material nor relevant and because compliance would be unreasonable.”.
Additionally, the County, acting on behalf of privately paid court reporter Ms. Thieme “seeks an Order of Protection against compelling her personal appearance to provide testimony and to produce any files, recordings or any other information pursuant to the Subpoena, for good cause shown…”.
Alternatively, the County, acting on behalf of privately paid court reporter Ms. Thieme “Requests a Hearing on her objections and motion to quash and for protection.”.
ARGUMENT AND AUTHORITIES
Plaintiff’s ‘Motion to Strike’ Argument
The sole purpose of the motion is to strike the pleading for lack of standing insofar as the County representing a private citizen, Ms Thieme in this civil matter and the County Attorney’s Office representing Ms. Thieme is an insurmountable “conflict of interest”.
Plaintiff’s ‘No Immunity for a Court Reporter’ Argument
As stated in the Plaintiff’s Motion to Strike, there is a case specific to this proceeding, where the County Attorney in Dallas sued the court reporter for her private services as a court reporter and who also claimed immunity, which was denied.
See Dallas Cty. v. Halsey, 87 S.W.3d 552, 553 (Tex. 2002)
(“Dallas County sued respondent Sandra Halsey, a certified court reporter, to recover funds it paid her to prepare a reporter’s record of a trial. Halsey moved for summary judgment, asserting the defense of judicial immunity, as derived from her role as the official court reporter… We disagree with the court of appeals and hold that because court reporters do not engage in a discretionary function or exercise judgment comparable to that of a judge while preparing a reporter’s record, they are not entitled to derived judicial immunity for that function.”).
Responding to the County’s Motion for Ms Thieme
In the County’s response on behalf of Ms Thieme, they cited to In re Daugherty, 558 S.W.3d 272 (Tex. App. 2018) an appellate opinion by Justice Schenck, which they hang their cowboy hat on.
However, to do so is legal err;
Ex parte Communications includes the Judge
Plaintiff notes in the opinion cited to by the County on behalf of Ms. Thieme states, in relevant part at 277;
“Given that the statements made before the hearing and while the call was muted were not heard by the judge, they could not possibly serve as the basis for any decisions he made. Accordingly, they are not, and should not be, considered part of the official record of the hearing.”
Here, the ex parte communications directly involved the judge.
Additionally, the County Attorney for Ms Thieme’s motion at ’12.’ cites to cases, including In re Daugherty which they allege are relevant as it could cause;
“the reporter to violate his or her professional ethics because the audio backup tape may contain inadvertent comments, off-the-record discussions, or attorney-client privileged communications that should not be released or disclosed.”.
That does not apply in the current circumstances and the case(s) cited are inappropriate to the facts at hand, namely ex-parte communications between the judge and opposing counsel, which is neither protected nor privileged. See; Thoma, in re, 873 S.W.2d 477, 496 (Tex. 1994)
(“Ex parte communications are “those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter. They are barred in order to ensure that `every person who is legally interested in a proceeding [is given the] full right to be heard according to law.'””).
In Thoma, ex parte conversations by the judge, including those in court chambers were recorded, submitted as evidence, and relied upon to sanction the judge by affirming his removal from judicial office. The same relief is warranted here and the testimony of Ms Thieme, along with the requested documents and evidence, including any audio tapes, backups or digital media, should be granted to determine the facts in Plaintiff’s search for the truth. See also; Guynn v. Corpus Christi Bank & Trust, 589 S.W.2d 764, 773 (Tex. Civ. App. 1979).
The Law and Legislature Confirms Plaintiff is Correct
Plaintiff notes in the In re Daugherty opinion cited to by the County on behalf of Ms. Thieme, the court reporter in that case was not represented by the sister Dallas County Attorney’s Office, despite her position. Rather, the court reporter is shown as “Wendy Schreiber, Dallas TX, pro se (emphasis added)” in the Opinion. This is important for two reasons.
First, this solidifies Plaintiff’s Motion to Strike the Harris County Attorney’s Office from representing Ms Thieme. The County is legally and legislatively barred from representing Ms Thieme when reading Opinion No. GA-0155, Opinion No. GA-0155 (Ops. Tex. Atty. Gen. Feb. 24, 2004). In the Texas Attorney’s Opinion, they confirm, in relevant parts;
“…you ask whether the county violates article III, section 53 by paying a court reporter both a salary and a fee for preparing a transcript.”.
“…as a threshold matter, we consider whether a court reporter is a “county officer””.
“…we conclude that a court reporter is not (emphasis added) a “district, county or precinct officer””.
“…we believe that the salary authorized by sections 52.051 of the Government Code and 152.011 of the Local Government Code represents compensation for the employment duties performed in service to the court reporter’s assigned court, not for the performance of any additional work performed upon request of parties in the litigation, in effect work constituting “other employment (emphasis added).”.
“And finally, when the county is paying a court reporter a salary pursuant either to sections 52.051 of the Government Code or 152.011 of the Local Government Code, it is acting in the role of employer. When, by way of contrast, it is paying a court reporter for certain additional services, such as the preparation of a transcript or a deposition, it is acting in the role of a party to the litigation (emphasis added).
No provision in the Government Code nor the Local Government Code supports the proposition that the legislature intended that counties, when requesting transcripts in the role of parties to litigation, should be treated differently than other nongovernmental parties requesting transcripts.
In such an instance, the additional compensation received by the court reporter is not “extra compensation” for services or work already performed in the role as an employee of the county; rather, it is additional work performed at the request of a litigating party.” (emphasis added).
See also; Garza v. Berlanga, 575 S.W.2d 639, 640-41 (Tex. Civ. App. 1978).
Second, Plaintiff questions the interpretation of the opinion cited by the County on behalf of Ms. Thieme in support of their Motion to Quash at point 11 of their motion. In re Daugherty, 558 S.W.3d 272, 277 (Tex. App. 2018) states quite clearly;
“Audiotapes that back up the court reporter’s stenographic record are not judicial records, and thus parties have no right to access them, unless some reason is shown to distrust the accuracy of the completed stenographic transcript. ” (emphasis added).
This critical element of the opinion was omitted from the County’s motion.
Plaintiff has Handsomely Addressed Materiality and Relevance
See; In re Rose, 144 S.W.3d 661, 694 n.21 (Tex. 2004) (“Canon 3(B)(1) provides, “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or is appropriate.” TEX. CODE JUD. CONDUCT, Canon 3(B)(1).”).
Here, Plaintiff questions the judge’s decision-making including Plaintiff’s Request for Findings of Fact and Conclusions of Law, image no. 105963896, Jan. 12, 2023, Notice of Past Due Findings of Fact and Conclusions of Law, image no. 106331668, Feb. 2, 2023 and subsequent ORDER SIGNED DENYING FINDINGS OF FACTS/CONCLUSIONS OF LAW, image no. 106399717, Feb. 6, 2023., despite Plaintiff citing to precedent that he was entitled ‘not to have to guess’ her reasoning.
See, in relevant part; In re A.Z.F., No. 04-20-00553-CV, at *1 (Tex. App. Apr. 6, 2022) (“The record affirmatively demonstrates that appellant was not required to guess the reason for the trial court’s ruling.”).
Plaintiff requested the findings of fact and conclusions of law in anticipation of both the upcoming sanctions hearing, and for reference and/or citation while examining the five witnesses commanded to appear on the stand, pertaining to the in-person hearing on January 9, 2023;
The judge’s association with opposing counsel, who contributed substantially to her 2022 judicial reelection campaign. Whilst legally allowed, what concerns Plaintiff is the fact that opposing counsel, Serpe Andrews, PLLC’s $2,500 donation was the ONLY donation to any sitting Harris County District Court Judge in 2022.
This was not the only contribution, however, there were donations by other Serpe Andrews, PLLC attorneys’ and partners in 2022.
See; First Amended Motion for Sanctions, to Disqualify Serpe Andrews PLLC, Nicole G. Andrews and Madison J. Addicks and Order Release of Video Surveillance Footage to Plaintiff, image no. 105718258, docketed on Dec. 27, 2023, with relevant exhibits;  Exhibit: “John Serpe $250 Donation to Judge Lauren Reeder (2022)“;  Exhibit: “Margaret Louie & Layrisson $2,326 Donation to Judge Lauren Reeder (2022)“;  Exhibit:”Serpe Andrews, PLLC, $2,500 Donation to Judge Lauren Reeder (2022)“;  Exhibit: “Louie Layrisson $500 Donation to Judge Lauren Reeder (2022)“.
See; Prendergass v. Beale, 59 Tex. 446 – 1883, and cited to; — “noting that judge in case was only judge who received campaign contributions from a party to case and his attorney gave sufficient grounds to raise suspicion regarding fairness and integrity of court”, Lawyers Married to Judges: A Dilemma Facing State Judiciaries-A Case Study MM Brandsdorfer – Geo. J. Legal Ethics, 1992.
The appearance of bias is clear and obvious and now we have ex-parte communications witnessed by the Court Reporter which Plaintiff seeks to investigate as further evidence.
“While recusal requires a certain degree of procedural “tip-toeing,” not so with disqualification. Disqualification may be raised at any time.” Gulf Maritime Warehouse v. Towers, 858 S.W.2d 556, 560 (Tex. App. 1993).
There is reason for disqualification here, but Plaintiff has decided to collect evidence and examine witnesses – in this instance, Ms Thieme. For the record, Plaintiff avers there is still a clear and obvious conflict of interest which is insurmountable as applied to the facts here; See; Infinger v. Harris County, Texas (4:21-cv-02506), District Court, S.D. Texas (2021), wherein 26 Harris County Judges were represented by Harris County Attorney’s Office and the same Office is representing non-party Ms Thieme. With the subject matter pertaining to ex parte communications, this only increases the conflict, as the County Attorney is effectively representing both the court reporter and the judge.
Discovery is the ‘legal’ term used to facilitate such a search for the truth in a court of law. See; Walker v. Packer, 827 S.W.2d 833, 847 (Tex. 1992) (“”[Discovery should provide] the fullest knowledge of the facts and issues prior to trial. . . [T]he ultimate purpose of discovery . . . is to seek the truth. . . .””).
Plaintiff is merely asserting his legal and Constitutional rights to do so. See; Chicago Fraternal Life Ins. v. Herring, 104 S.W.2d 901, 903 (Tex. Civ. App. 1937) (“A person is responsible for what he represents to be true whether he knows the same to be false or not.”).
Plaintiff also paid for a transcript report prepared as “additional work performed at the request of a litigating party” by Ms Thieme, and now requests Ms Thieme’s mandated presence, with appearance fee paid, at the forthcoming hearing before the court as a witness.
See; Opinion No. GA-0155, Opinion No. GA-0155, at *1 (Ops. Tex. Atty. Gen. Feb. 24, 2004).
The Motion for Protection is Frivolous
Based on the above and asserting the following authorities, the Motion for Protection should be DENIED. One only needs to review; Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987), and; Masinga v. Whittington, 792 S.W.2d 940, 942-43 (Tex. 1990).
In short, there is no legal immunity, privilege, or protection available to Ms Thieme for the work performed and paid for by Plaintiff, and which she performed on her own time. See; Antoine v. Byers Anderson, Inc., 508 U.S. 429 (1993) (“Because their job requires no discretionary judgment, court reporters are not entitled to immunity as part of the judicial function. See Imbler v. Pachtman, 424 U.S. 409, 423, n. 20. Pp. 432-438.”); Dallas Cty. v. Halsey, 87 S.W.3d 552, 557 (Tex. 2002).
First, Plaintiff reiterates the gravamen of his Motion to Strike, namely Harris County Attorney’s Office representing Ms Thieme is unconscionable and glaring conflict of interest. That separate motion should be GRANTED.
Alternatively, the Plaintiff has provided more than sufficient argument with cited authorities to support Ms Thieme’s attendance, with documents and audio in hand, at the scheduled hearing on March 20, 2023.
As such, the Court should DENY Non-Party Norma Thieme’s Objections to Subpoena, Motion to Quash Subpoena, and Motion for Protection.
RESPECTFULLY submitted this 8th day of March, 2023.
As the Harris County Attorney, Christian D. Menefee is the chief civil lawyer for the largest county in Texas. He manages an office of 250+ attorneys and staff who represent the county, its 60 elected officials, and its 18,000+ employees in all civil matters and lawsuits. Elected at 32 years old, he is the youngest person and the first African-American to serve as Harris County Attorney.
Prior to taking office, Christian practiced at Kirkland & Ellis LLP, focusing on complex commercial litigation and bankruptcy matters in federal court, and representing clients in matters involving the US Department of Justice, the US Securities and Exchange Commission (SEC), and other government agencies. Christian began his career at Norton Rose Fulbright, where he focused on business litigation in federal and state courts, investigations under the Foreign Corrupt Practices Act, and other matters involving the SEC.
In private practice, Christian also focused heavily on pro bono work, including advising the NAACP Legal Defense Fund, advising immigrants and their families at Bush Intercontinental Airport during the “Muslim ban,” and working with Texas Appleseed on expanding alternatives to involuntary commitment for the mentally ill.
The son of two veterans, Christian attended public schools in Harris County and was the first in his family to attend college. He is a graduate of The University of Texas at San Antonio, and Washington University St. Louis School of Law.