Former Liberty County (TX) judge indicted for fraud, tied to trust dispute

Former Liberty Co. judge, others indicted
January 28, 2011
KTRK-TV Houston
http://abclocal.go.com/ktrk/story?section=news/13_undercover&id=7925062

HOUSTON (KTRK) — A former Liberty County Judge and Commissioner and a local businessman have all been indicted in a hurricane fraud scheme, US Attorney John M. Bales announced on Friday.

John “Phil” Fitzgerald, 51, of Liberty, Texas, Herman “Lee” Groce, 62, of Cleveland, Texas, and Mark Wayne Miksch, 52, of LaVernia, Texas, were named in a 25-count indictment returned by a federal grand jury on Jan. 26, 2011. The defendants have been summoned and will make their initial appearances on Feb. 1, 2011 before U.S. Magistrate Judge Earl S. Hines.

[ READ THE FULL INDICTMENT ]

The indictment alleges that following Hurricane Ike’s landfall on Sep. 13, 2008, Fitzgerald, the Liberty County Judge, and Groce, the Liberty County Precinct 2 Commissioner, used their elected positions to fraudulently influence and award debris removal contracts to a company in return for sub-contracts being awarded to Fitzgerald’s brother-in-law and businessman, Miksch. As part of the scheme, Fitzgerald is alleged to have received approximately $611,000 in kickbacks disguised as legitimate business transactions.

Additionally, Fitzgerald is charged with the unauthorized use of a 155 kilowatt generator which was purchased by and for the benefit of Liberty County and then reimbursed by FEMA. Instead, Fitzgerald is alleged to have commandeered and used the generator to power Fitzpak, a convenience store and gas station in Moss Hill, which Fitzgerald owned and operated.

As a result of the conspiracy, approximately $3,269,456 in debris removal contracts were fraudulently awarded by Fitzgerald and Groce in violation of state and federal laws, according to Bales.

Fitzgerald and Groce both lost their bids for re-election in November 2010, concluding their positions with Liberty County on December 31, 2010.

A criminal probe was sparked after a joint investigation by 13 Undercover and the Cleveland Advocate. Our hidden cameras showed trucks owned by the then-county judge were used in the Hurricane Ike cleanup in his own county. We have worked on this story in cooperation with The Cleveland Advocate, our Houston Community Newspaper partner.

Fitzgerald’s attorney Joseph Hawthorn issued a statement which read in part: “Judge Fitzgerald has fully cooperated with the investigation, has nothing to hide and has committed no crime. … Had the Government allowed us the opportunity to present our side of the story before seeking an indictment, we are confident there would be no indictment. However, because of their refusal, we will now have to have a trial in this case, at considerable expense to Judge Fitzgerald and the taxpayers, in order for us to tell our side of the story.”

If convicted, the defendants face up to five years in federal prison for the conspiracy charge. Additional charges range from five to 30 years in federal prison.

Judicial Commission admonishes actions of former county judge
Vanesa Brashier
January 12, 2011
The Dayton News
http://www.yourhoustonnews.com/dayton/news/article_4a62ea8c-cbf4-5158-9af9-07ec267cfdff.html

The State Commission on Judicial Conduct has ruled that former Liberty County Judge Phil Fitzgerald acted in violation of the Texas Code of Judicial Conduct regarding the Jessica Vickery Irrevocable Trust and has issued a public admonition against him. The trust was set up back in 1987 by the parents of Jessica Vickery — Glenn Vickery and Helen Green.

In 2001, while serving as Liberty County Pct. 3 Justice of the Peace, Fitzgerald was appointed by the parents to serve as a trustee over their daughter’s estate. That arrangement stood until 2009 after questions arose about the dismissal of a DWI case pending against Glenn Vickery, which was dismissed by Fitzgerald in his capacity as Liberty County Judge, a position to which he was elected in 2006.

The DWI dismissal was later rescinded and the case against Vickery was reinstated. A visiting judge was appointed to hear the case and it was settled with a sentence of deferred adjudication.

When questions of Fitzgerald’s management of her estate arose, Jessica Vickery, who is a legal adult, requested that Fitzgerald step down as trustee. When he refused, a lawsuit was filed demanding that he step down.

At the trial, part of the testimony came from a logger, Paul Palmer, who said that he had been asked by Fitzgerald to falsify documents on lumber that was to be harvested from the Vickery Trust. The logger said that Fitzgerald wanted him to list a different address than the one being harvested for timber.

Palmer, owner of a local logging company in Rye, testified that after Hurricane Rita struck the area, he was asked by Fitzgerald to perform logging on the Vickery’s property. Palmer said that when he began to discuss billing, the deal started to go “haywire.”

“He wanted it to show that it came off of my tracts instead of his tracts,” said Palmer. “I walked away. I didn’t want to have anything to do with it. In my line of work, you just don’t do things like that.”

Ron Krist, attorney for the Jessica Vickery Irrevocable Trust, also cited as evidence against Fitzgerald an investigation being conducted by the Department of Homeland Security, which oversees the Federal Emergency Management Agency (FEMA).

Krist then questioned Fitzgerald about him receiving money from FEMA for hurricane cleanup after Hurricane Ike.

“My company did not contract with the county,” said Fitzgerald. “I leased my equipment to my brother-in-law.”

Fitzgerald said that FEMA did not pay his brother-in-law, admitting that his brother-in-law instead received money from Moss Hill-based C&C Lumber, one of two companies in Pct. 2 to be awarded debris removal contracts after Ike.

Krist asked Fitzgerald how much money he made in 2009 from leasing equipment. Fitzgerald replied that it was approximately $70,000, but after expenses was approximately $30,000. Krist asked if the amount that he made was actually closer to $1.2 million and Fitzgerald replied no.

“Were you fulfilling your fiduciary duties for the county?” asked Krist, inquiring about making a profit from the hurricane debris clean-up.

“Sure,” said Fitzgerald.

The case ended with Fitzgerald being forced to step down by then-75th District Court Judge C.T. “Rusty” Hight.

The Texas Code of Judicial Conduct prohibits all judges, with the exception of justices of the peace, from serving as a trustee for a non-family member estate. In this case, Fitzgerald claimed to the Judicial Commission “that he thought of Jessica Vickery as a daughter” and that he “enjoyed a close familial relationship with members of the Vickery family.” However, the Judicial Commission found in its investigation that “maintaining a close relationship and having paternal feelings toward someone else’s child, standing alone, does not satisfy the ‘close familial relationship’ standard as articulated by the Judicial Canons.

The Commission’s conclusion, which was released on Jan. 10, 2011, said that “Fitzgerald’s failure to voluntarily remove himself as Trustee, even after the legal action was taken against him, constituted a willful and/or persistent violation of Canon 4E(1) of the Texas Code of Judicial Conduct.

The Commission also concluded that “Fitzgerald cast public discredit upon the integrity and impartiality of the judiciary and the proper administration of justice when he dismissed the DWI case pending against Vickery, his close personal friend. Fitzgerald’s actions in this regard constituted a willful violation” of the Texas Constitution.

This past year, Fitzgerald sought a second term as county judge, but he was beaten by challenger Ken Morrison, who subsequently defeated by Republican challenger Craig McNair. McNair was sworn in as Liberty County Judge on Jan. 4.

HCN Reporter Melecio Franco contributed to this report.

County judge removed from Vickery trust
Melecio Franco/Alex Wukman
October 20, 2009
The Dayton News
http://www.yourhoustonnews.com/dayton/news/article_b4fba3e3-ada9-55cf-a08c-63cd6227618e.html

At Monday’s hearing regarding the Jessica Vickery Irrevocable Trust, 75th District Court Judge, the Honorable C.T. “Rusty” Hight, removed Liberty County Judge Phil Fitzgerald as trustee.

Fitzgerald had sought to remain as trustee even though the beneficiary of the trust, Jessica Vickery, the daughter of Glenn Vickery and Helen Green, had asked for his removal. The young woman’s parents were split on who should act as trustee of the estate. Glenn Vickery was in support of Phil Fitzgerald and Green and her daughter had asked that First Liberty National Bank be appointed the trustee.

As he announced his ruling, Hight admitted that he could not remove Glenn Vickery’s ability to name a trustee; however, he ruled that Glenn Vickery and Green must jointly name another trustee. If an agreement cannot be reached, First Liberty National Bank will be appointed.

The other terms of the ruling are that Vickery must pay his daughter’s trust in the amount of $75,000 for lease payments that were never made and $38,000 in back taxes. Vickery was, however, given a $25,000 credit for lease payments due to the money he spent on a drainage project, which was performed by Fitzgerald’s Hard Rock Construction Company.

The judge also ordered Fitzgerald and Glenn Vickery to pay $110,000 in legal fees to the trust.

As he made his ruling, Hight said he was doing so because Fitzgerald “had breached his fiduciary duty.”

The judge also went on to say, “Now to the issue concerning canons of judicial ethics. I believe that on January 1, 2007, Judge Fitzgerald should have resigned. I don’t have authority to do anything to Judge Fitzgerald. That’s going to be up to someone else.”

Fitzgerald was served with the suit in April 2009 after information regarding his dismissal of a DWI charge against Glenn Vickery, Jessica’s father, came to light.

Subpoenas issued

Motions for the trial began two weeks ago when Fitzgerald’s attorneys subpoenaed all of the notes and documents written by Cleveland Advocate and Dayton News Editor Vanesa Brashier, and Allen Youngblood, owner of a news website in Liberty.

The subpoena also asked for all tapes, audio and video recordings and other electronic or digital recordings in Brashier’s possession concerning Fitzgerald, and asked that the Cleveland Advocate identify the author of every web comment posted on the Advocate’s website “including, but not limited to the name, address and IP address of each author.”

When attorney’s for Brashier filed a motion to quash, Fitzgerald’s attorneys abruptly withdrew the subpoena. The subpoena was expected to be rejected due to Texas’ Free Flow of Information Act, also known as the Journalist Shield Law, which protects the records and sources of journalists.

Testimony begins

The trial officially began on October 12 with attorneys for Jessica Vickery alleging that Fitzgerald should be removed from the trustee position based on the Texas Code of Judicial Conduct, Canon 4, E (1), which states “A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.”

Fitzgerald served as county judge while acting as trustee.

However in opening arguments, Fitzgerald’s attorney, Steven Watkins, cited Canon 8, A, which states that the code “is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.”

Glenn Vickery’s attorney, Jim Hartnett, accused Jessica and her mother, Helen Green, of simply trying to gain access to the money in the trust before the trust expired.

“It’s not about whether Phil Fitzgerald has done anything wrong. It’s not about whether Glenn Vickery has done anything wrong. It’s that they want to get the money,” said Hartnett.

Hartnett continued on by citing the terms of the trust, which give the trustee, in this case Fitzgerald, the discretion to enter into contracts with whomever he chooses without needing approval from anyone else.

Watkins argued that the financial performance of the trust proved that Fitzgerald had not violated the trust because its value had increased significantly over approximately nine years. Watkins stated that on Dec. 1, 2000, the trust was valued at $1,188,000 and as of June 3, 2009, the trust was valued at $2,827,000. The trust grew by $1,639,000 which is an increase of 138 percent.

County Judge questioned about perceived conflicts of interest
The trial revealed that Fitzgerald had used his company, Hard Rock Construction Company, to make improvements to the Vickery trust property while being paid by Glen Vickery.

“Did you not imagine a conflict of interest when you, as trustee, did work on the property?” asked Ron Krist, attorney for the trust.

Fitzgerald indicated that he did not see it as a problem, despite the fact that Glenn Vickery was paying for the work and Fitzgerald was applying the funds that Vickery paid him to the ever-increasing rent he owed to the trust.

According to the terms of the trust, Glenn Vickery was renting 200 acres from the trust at a cost of approximately $8,000 per year for five years. However, after those five years were up, his rent increased each year.

Fitzgerald stated that Vickery told him the rent had “gotten out of control” and that he agreed with him.

Fitzgerald stated that he would offer Vickery a credit to reduce his rent if Vickery paid to have some improvements done to the property.

However, Fitzgerald never made any record of the agreement, something that Krist picked up on.

“Your company did work on the property, and you credited it to Glenn Vickery, and you used that credit in lieu of rent and you didn’t see a need to write it down?” asked Krist.

Fitzgerald answered that he did not.

Logger claims he was asked by Fitzgerald to falsify documents

Several revelations were made during the second day of the trial, which included a witness accusing Fitzgerald of asking him to falsify documents on lumber that would be harvested on the Vickery trust property but that he should say that the timber came from elsewhere. Fitzgerald also answered questions under oath relating to the money that he made after Hurricane Ike by leasing trucks to his brother-in-law.

Paul Palmer, owner of a local logging company in Rye, testified that after Hurricane Rita struck the area, he was asked by Fitzgerald to perform logging on the Vickery’s property. Palmer said that when he began to discuss billing, the deal started to go “haywire.”

Palmer stated that Fitzgerald wanted him to document that the work was performed on a different tract of land than the one he was actually going to do the work on.

“He wanted it to show that it came off of my tracts instead of his tracts,” said Palmer. “I walked away. I didn’t want to have anything to do with it. In my line of work, you just don’t do things like that.”

When Fitzgerald later testified again, he contradicted Palmer’s claims and denied that the conversation ever took place. He said that he had no idea why Palmer would say what he did.

Krist later questioned Fitzgerald about his decision to use his own company, Hard Rock Construction, to perform renovation work on the Vickery trust rental properties.

“Is it your custom to have them do work for people you have fiduciary duties for?” asked Krist.

“I guess so,” replied Fitzgerald.

Krist then questioned Fitzgerald about him receiving money from the Federal Emergency Management Agency for hurricane cleanup after Hurricane Ike.

“My company did not contract with the county,” said Fitzgerald. “I leased my equipment to my brother-in-law.”

Fitzgerald said that FEMA did not pay his brother-in-law, admitting that his brother-in-law instead received money from Moss Hill-based C&C Lumber, one of two companies in Pct. 2 to be awarded debris removal contracts after Ike.

Krist asked Fitzgerald how much money he made in 2009 from leasing equipment. Fitzgerald replied that it was approximately $70,000, but after expenses was approximately $30,000. Krist asked if the amount that he made was actually closer to $1.2 million and Fitzgerald replied no.

“Were you fulfilling your fiduciary duties for the county?” asked Krist, inquiring about making a profit from the hurricane debris clean-up.

“Sure,” said Fitzgerald.

When Krist suggested that Fitzgerald was still under investigation by federal agents, Krist began by saying to the county judge, “Isn’t it true that that rooster hasn’t lit?”

Fitzgerald, who appeared to be denying any investigation, chuckled and replied, “I think that rooster has already lit and flown away.”

Glenn Vickery, father of Jessica Vickery, also testified. He said that he did not have regrets setting up the trust for his daughter even though she seldom speaks to him and that she was suing him. He said that the trust was set up so that she would have assets to use when she became an adult.

Krist accused Vickery of creating the trust, not because he wanted to create assets for his daughter that she could use when she became an adult, but to protect his assets from a possible malpractice lawsuit.

Next, Krist discussed the attempted dismissal of Vickery’s DWI case in December 2008. He asked Vickery if he had conferred with Fitzgerald about the dismissal and Vickery said no. He stated that he did not know why Fitzgerald dismissed it.

Krist asked Vickery about the terms of the lease for the property, which was $8,527 a year. After Vickery leased the property for five years, he exercised his option to lease it again for another five years. At the end of that time period, Vickery claimed that he entered into a new lease arrangement with Fitzgerald that was created orally and which began in 2005.

The written lease called for annual cash payments but Vickery claims that the lease was terminated when he went into the new month-to-month tenancy.

Vickery said that he didn’t continue paying the previous amount of money in rent due to the new oral agreement and because he considered the work that he paid to clean up the property after Hurricane Rita struck as a tradeoff.

Vickery said that, according to the new oral lease agreement, he did not have to pay the previous rental amount because he was in charge of maintaining, taking care of and protecting the trust property.

Krist pointed out that maintaining and protecting the property are the same duties that a fee simple owner would be expected to do and that Vickery was doing no more than he would if he owned the property outright.

As the trial was drawing to a close, Hight asked Vickery if after he paid Fitzgerald’s company for the work performed on the property if he listed it as an expense on his income taxes. Vickery replied yes.

Jubilation from some, silence from others

Following the verdict, Glenn Vickery did not offer comment.

Krist explained that by having Fitzgerald removed as trustee, Vickery will have to move off of the trust property.

“Glenn has had his tenancy forfeited,” he said. “He will have to remove himself from the ranch and vacate immediately.”

Krist said that he was pleased with the decision.

“It was a Liberty County mess cleaned up by a Liberty County judge,” he said. “The rule of law still prevails in Liberty County.”

Fitzgerald stated that he is considering appealing the decision.

Helen Green, was pleased with the trial’s outcome for her daughter.

“I want to thank God, Judge Hight and our wonderful attorneys,” she said.

To view the Judge Hight’s comments at the close of the trial, click here: http://www.hcnonline.com/media/pdf/KMBT20020091020110242.pdf

Liberty County judge stripped of role overseeing trust
Cindy Horswell
October 19, 2009
Houston Chronicle
http://www.chron.com/disp/story.mpl/metropolitan/6675461.html

Liberty County Judge Phil Fitzgerald, who’s under state and federal investigation for allegations of showing favoritism to prominent personal injury lawyer Glenn Vickery, was stripped Monday of his role overseeing the $2.8 million trust for that attorney’s daughter.

After a three-day hearing at the Liberty County courthouse, State District Judge C.T. “Rusty” Hight ruled that Fitzgerald had recklessly breached his fiduciary duty to the daughter, Jessica Vickery, now 26. Hight said Fitzgerald, who had earned $39,000 during the eight years he served as trustee, had improperly allowed Jessica’s father to use 900 acres from the trust without paying the trust any rent or taxes after 2004.

Hight said the trust did not permit Fitzgerald to be held responsible for any losses, but he ordered Glenn Vickery to repay the trust $81,044 for back taxes and rent.

Hight said Fitzgerald did not have the technical background needed to manage such an estate and, at any rate, should have resigned from the post after being elected county judge in 2007. The state judicial commission’s ethics code strictly forbids a judge from becoming executor of a trust unless it belongs to a family member.

During the hearing, Jessica Vickery’s attorney, Ronald Krist of League City, accused Fitzgerald of conspiring with Glenn Vickery to defraud the trust.

The Texas Attorney General and the Federal Emergency Management Agency are investigating whether Fitzgerald violated the Texas government code when he failed to “timely disclose” that he had leased 16 trucks from his Hardrock Construction Co. to his brother-in-law for a $3.2 million contract to clean up hurricane debris for the county.

In addition, Fitzgerald is being investigated for dismissing a drunk driving charge against Glenn Vickery. The charge, now set for trial in November, was reinstated by County Court-at-law Judge Don Taylor who said Fitzgerald did not have the authority to transfer the case from Taylor’s court. Fitzgerald testified he had an oral agreement with Glenn Vickery which modified the original trust document, permitting Vickery to stop paying taxes and rent after 2004 in exchange for making improvements to the property.

Glenn Vickery’s ex-wife, Helen Vickery, however, testified she believed no improvements were ever made to the land.

But Fitzgerald’s attorney, Steven Watkins, argued his client had done an excellent management job, noting the trust’s value had increased by 138 percent during his tenure.

County judge drops demand for news entities’ notes
Cindy Horswell
October 13, 2009
Houston Chronicle
http://www.chron.com/disp/story.mpl/metropolitan/6666263.html

Liberty County Judge Phil Fitzgerald, under pressure for months from a probe into misconduct allegations, has withdrawn a demand that two local news entities turn over all information gathered about him as new revelations continued to surface.

The subpoenas, which were issued Oct. 6 to Vanesa Brashier, Cleveland Advocate editor, and Allen Youngblood, who maintains a community news Web site, not only sought interview notes and e-mails but ordered them to turn over identities of readers making anonymous comments to online stories.

However, after attorneys for Brashier and Youngblood filed motions stating such requests would have a chilling effect on journalism and violate the state’s new law on the free flow of information, Fitzgerald’s attorneys abruptly withdrew the requests three days after they’d been filed without comment.

“We had a lot of readers upset that Fitzgerald was going after their names, wondering whether he was making an enemy ‘hit list,’ ” Youngblood said. “It was a witch hunt.”

Revelations in trial

Fitzgerald’s attorney, Barbara Norwood, said neither she nor her client would have any comment since Fitzgerald was the defendant in a civil trial that began at the Liberty County courthouse Monday.

In that trial — which has brought out new revelations — Fitzgerald is being sued by Jessica Vickery, who wants him removed as executor over her $2.8 million trust. It was established years ago by the 27-year-old Vickery’s parents, Glenn and Helen, who have since divorced.

Glenn Vickery, a prominent personal injury attorney, plays a crucial role in an ongoing probe of Fitzgerald by the Texas attorney general. The state and the Federal Emergency Management Agency have been investigating allegations that Fitzgerald, among other things, may have improperly profited from cleanup after Hurricane Ike by leasing 16 trucks to his brother-in-law that were used in a $3.2 million contract with Liberty County to remove storm debris. The judge, who insists that he did not vote on the contract and was not the direct contractor, is also accused of illegally dismissing drunken driving charges against Glenn Vickery and others.

Fitzgerald, who presides over the county Commissioner‘s Court and handles minor criminal cases, said he had the authority to move Vickery’s case from County Court-at-Law Judge Don Taylor’s court without a transfer order from Taylor.

Ethics code cited

The Glenn Vickery case was dismissed by Fitzgerald for insufficient evidence, noting there were “no lab tests.”

But Ricard Skarpa, Liberty’s acting police chief, said Vickery’s tests — showing high levels of prescription medications — were sitting in his office.

Judge Taylor, meanwhile, said Fitzgerald never had the authority and voided the transfers. An appointed judge, Patrice McDonald, has ordered Vickery to stand trial on the charge in November.

Critics question how Fitzgerald could take any action on Vickery, suggesting a conflict of interest since he receives a monthly stipend as executor over Vickery’s daughter’s trust.

In the trial over the trust that began Monday, Fitzgerald has testified that he also has a document giving him power of attorney for Glenn Vickery himself. Meanwhile, Jessica Vickery’s attorneys question Fitzgerald’s eligibility to act as her executor, noting the state’s ethics code prohibits judges from holding such fiduciary positions unless the trust is for an immediate family member. Fitzgerald has been her executor since 2001, while also serving as a justice of the peace or county judge.

The ethics issue led Jessica and her mother to examine the trust, which they now contend has been improperly managed.

County judge refuses to step down from managing trust
Vanesa Brashier
May 18, 2009
The Cleveland Advocate
http://www.yourhoustonnews.com/cleveland/news/article_7234e6d9-0a88-5341-8606-3a9c083e5fe1.html

Liberty County Judge Phil Fitzgerald, through his attorney Steven J. Watkins with the Houston-based law firm McGinnis, Lochridge and Kilgore LLP, has filed an answer to the petition to have him removed as trustee of the Jessica Vickery Trust. For now, it appears he won’t be stepping down as trustee.

In his answer, Fitzgerald denies “all charges and allegations contained in plaintiff’s original petition” and challenges the plaintiff “to prove her charges and allegations by a preponderance of the evidence.”

Furthermore, Fitzgerald denies that his appointment as trustee of the trust account has violated any provision of the Texas Code of Judicial Conduct.

“Defendant denies that the Texas Code [of Judicial Conduct, Canon 4E (1) prevents him from serving as trustee of the Jessica Vickery Irrevocable Trust. Further in alternative, defendant denies that a violation of Texas Code [of Judicial] Conduct … can serve as the basis for the removal of defendant as trustee,” a section of the answer reads.

But Canon 4E (1) clearly states what appears to be an opposing opinion regarding fiduciary activities of a judge. The canon reads, “A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.”

As the daughter of a close friend of Fitzgerald, Jessica Vickery, 26, does not meet the criteria listed in the canon in order for the judge to serve lawfully on the trust. The terms of her trust say that she is to receive 50 percent of the estate at age 30 and the other 50 percent at age 35, so she will require the service of a trustee for several years to come.

Vickery’s attorneys, Ron Krist and Dick Morrison, are asking the court to appoint First Liberty National Bank as the trustee of the estate. Vickery petitioned the removal of Fitzgerald as trustee, in part, based on the belief that the estate has been mismanaged.

Fitzgerald answered that charge in the papers. The statement goes, “Defendant denies that he has materially violated or attempted to violate the terms of the trust, and further denies that he has caused a material financial loss to the trust.”

Instead, he claims to have increased the value of the estate since the time he was appointed.

“…the trust has at least increased from an approximate value of $1,188,272.13 as of December 31, 2000, to an approximate value of $2,736,222.97 as of December 31, 2008, an increase in value of approximately $1,547,950.84.” The proof of that assertion remains to be seen.

When asked to comment on Fitzgerald’s unwillingness to step down from the trust, Ron Krist said, “As is very clear by the reading of the petition, we disagree entirely relative to the law and facts of this case. Resolution of divergent opinions is what courts are for.”

The case has been assigned to the 75th District Courtroom of the Honorable C.T. “Rusty” Hight. The date of the hearing has not been set at this time.

Liberty County judge sued
Wayne Dolcefino
May 1, 2009
KTRK-TV Houston
http://abclocal.go.com/ktrk/story?section=news/13_undercover&id=6790387

HOUSTON (KTRK) — The Liberty County Courthouse is abuzz again, and that spells new trouble for embattled Liberty County Judge Phil Fitzgerald. Cell phone records and a lawsuit are raising the ante. 13 Undercover has the latest on our joint investigation with the Cleveland Advocate newspaper.

Judge Fitzgerald’s long friendship with retired lawyer Glen Vickery isn’t news in Liberty County, but when the judge chose to dismiss Vickery’s DWI case he opened a Pandora’s box of trouble.

“Sure there’s a long friendship. Every case I hear in this court I usually have some prior knowledge or friendship with one side or the other,” said Judge Fitzgerald.

The dismissal has been voided by another judge and a new trial ordered, but an ethics investigation is underway. As a county judge, Fitzgerald apparently had no legal authority to hear the case in the first place. KTRK’s legal analyst says that could run afoul of two criminal statutes.

“That is an impersonation of another type of public service. He could be charged with tampering with a record. He signed the record,” said KTRK Legal Analyst Joel Androphy.

The canon of ethics says you can’t be a judge and also executor of an estate outside your family. Last month, we told you Fitzgerald was running the estate of Glen Vickery’s daughter when he threw out Glen Vickery’s criminal case.

“Until the governor gets us to secede from the union, we’re still under laws of the United States. We don’t have fiefdoms in the United States and he’s acting like we do,” said Ron Krist, lawyer for Jessica Vickery.

Fitzgerald sees no conflict, but that’s not what’s prompting this lawsuit. Vickery’s daughter now wants to know where all her money is.

“We’re talking about 900 acres to a thousand acres of property in north Liberty County. You’re talking about several apartments. You’re talking about an annuity. It’s an estate clearly worth over a million dollars,” said Krist.

Jessica Vickery’s lawsuit accuses Fitzgerald of mismanaging her estate for the past seven years.

“He’s done no accounting, never acknowledged any of his activities. He shouldn’t be serving,” said Krist.

The lawsuit claims Fitzgerald is conspiring with Glen Vickery.

“If it is shown there is a misapplication of funds in his fiduciary capacity, of course, that would constitute a crime,” said Krist.

Jessica Vickery’s other lawyer, Richard Morrison, said, “It’s a breach of trust not only to the beneficiary of this trust, our client, as well as the people of Liberty.”

While the Krist Law Firm looks for the money, we’ve been taking a closer look at Judge Fitzgerald’s cell phone records. On New Year’s Eve, the day the judge dismissed Vickery’s criminal case, guess who he called? Glen Vickery.

“The government loves phone records to put people together at a certain place and time,” said Androphy.

“I’m not surprised, but it is not very sophisticated,” said Krist.

In early March, the Liberty watchdog blog i-dineout.com began raising questions about the DWIcase. The judge made longer call to Vickery then. Just after we interviewed Fitzgerald about Glen Vickery on March 10, he called him at least twice and again the following morning.

Our legal analyst said the damage has already been done.

“The public has been damaged. They’ve seen favoritism. That’s not something that plays very well in the community,” said Androphy.

Judge Fitzgerald better hope the i-dineout.com poll is skewed since 85% of those voting want the judge to resign.

The cell phone records also raise new questions about the judge’s involvement in the hurricane cleanup in Liberty County, now subjects of state and federal investigations.

Did judge help out in DWI case?
Wayne Dolcefino
March 16, 2009
KTRK-TV Houston
http://abclocal.go.com/ktrk/story?section=news/13_undercover&id=6713400

LIBERTY COUNTY, TX (KTRK) — New questions are surfacing about justice and allegations of special treatment for a suspected drunk driver and again it’s the Liberty County Judge in the middle of the story.

Sunday night 13 Undercover reported the Liberty County Judge and his family made money off his own town’s hurricane disaster. Now it’s a curious case at the courthouse.

It was December 30, 2008 at the Liberty County courthouse and Criminal Judge Don Taylor had cleared his criminal docket for the year and went home. But the next day, cases were dismissed in Taylor’s court without his knowledge.

“Did I ask him,” asked Liberty County Judge Phil Fitzgerald. “No he wasn’t here.”

So why did Liberty County Judge Phil Fitzgerald decide to play criminal judge for a day?

“I guess because I was here,” he replied.

Our legal analyst has seen a lot, but he says what happened next is off the smell meter.

“I’ve never seen it before and I’ve seen a lot of funky deals going on but this is the most funky in terms of the relationships there,” KTRK analyst Joel Androphy said.

The county judge dismissed nine criminal cases that weren’t even set for a hearing that day.

“It’s bizarre that a case gets resolved when it’s not on the docket,” Androphy added.

One of them was a DWI case against a prominent lawyer named Glen Vickery. Vickery had been busted in downtown Liberty. A blood test was taken. So why the sudden rush to dismiss the case when Judge Taylor was not even there?

“I was approached by the county attorney’s office and acted on their request,” Fitzgerald said. “It is as simple as that.”

The motion to dismiss was filed by assistant county attorney Tommy Chambers. I asked him if he thought the case should have been dismissed.

“I really can’t comment on that, it’s under investigation and I filed the motion,” he responded.

I asked him if he was told to dismiss this case.

“Wayne, I don’t really want to comment on an ongoing investigation,” he responded.

Here’s the motion, it says the case was dismissed in part because of no lab test.

“Cases don’t get dismissed because there’s no test,” Androphy said. “If that were the case nobody would blow.”

I asked Chambers the definition of lost and defined it as you couldn’t find it.

“Right,” he said. “I couldn’t find it.”

Chambers claims he called both Liberty police and the Department of Public Safety laboratory.

“Nobody had it…well that’s not exactly accurate&ahh&Look I really don’t even want to get into it,” he said. “I need to look into it and we’re going to try and acquire the lab test.”

The Liberty Police Department is just blocks from the courthouse. They told us they have the test. They had it since last October. That’s not lost.

“The judge should have informed the county attorney about what you discovered,” Androphy said.

And not just that Judge Fitzgerald and lawyer Vickery are old friends.

“I don’t see a conflict,” Fitzgerald said.

But we’ve learned Judge Fitzgerald is executor of Jessica Vickery’s trust. She’s Glen Vickery’s daughter.

I asked the county judge if he knew of the canon of ethics.

“Well I know of it,” he responded. “I can’t quote every canon.”

Well one of the canons says Fitzgerald can’t be a judge and financially responsible for a trust fund that doesn’t belong to one of his relatives and Vickery is not a relative. Of course there’s also that little ethics rule about appearances.

“The bottom line is, judges should not be involved in cases where their impartiality is questioned,” Androphy said. “The fact that he stayed on this case makes this case even more foul smelling.”

This on the heels of reporting the county judge made money off his own town’s disaster. He was involved in the renting of trucks as part of a $3 million county debris contract. Oh, his brother-in-law was in charge of the daily cleanup.

Neither the judge, nor the county contractor has filed affidavits declaring their relationship. And the judge won’t tell us and you how much he made.

“I think you’re crossing the line and getting into my personal finances,” the judge told us.

We’ve also found evidence Liberty County failed to maintain some of the records it would need to ensure taxpayers weren’t being ripped off in the hurricane cleanup.

You can read more about this investigation in our Houston Community Newspaper partner the Cleveland Advocate.

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  • Patriotdad2004

    At least he didn’t abuse children like Judge William Adams. Let’s see if the Texas Judicial Review Committee sweeps this under the rug like they did the many and varied complaints against William Adams in Rockport, Texas. Here is one documented a year before the viral video of Adams prolonged beating his own MS afflicted daughter without mercy. Of course, with transcripts provided, the judges on the Judicial Review Committee, secretly judging other judges, found the judge committed no breach of public trust and no harm to the public’s opinion of the judiciary. That says a lot about how low the public views the judiciary if Adams can’t fall below that level. http://thepatriotdad.wordpress.com/2011/11/04/judge-adams-homicidal-hullucinating-psychotic-babysitter-is-ok/