Area Attorney Nominated for Texas Legal Award

BY JERRIE WHITELEY

HERALD DEMOCRAT May 19, 2009

Sherman Attorney Donald Johnston's habit of helping people with legal problems earned him a nod from the State Bar of Texas Legal Services to the Poor in Civil Matters Committee. The group nominated Johnston as a recipient of the Frank J. Scurlock Award.

Jan Kearney of Legal Aide of Northwest Texas said she nominated Johnston because of his dedication to the local legal aid clinic and because of his pursuit of a case that could affect the cost of representation for legal aid clients throughout the state.

Kearney said her organization has named him the Pro Bono Lawyer of the Year a number of times. His dedication to the volunteer clinic the group holds once a month is nearly legendary.

"He is there at every clinic almost without fail," she said, noting that Johnston is, "a true believer in equal justice for all regardless of their ability to pay."

In pursuit of that belief, Johnston even took on the way things were done at the Grayson County District Clerk's Office.

Johnston said that effort and its implications are the only reason he can think of that anyone would have nominated him for the Scurlock Award.

The case began when one of Johnston's clients filed a case to help collect child support from the father of her child on Aug. 18, 2006. At the same time, the client filed an affidavit of inability to pay costs that showed the amount of income she received and her costs of living. She also filed paperwork showing that Johnston was handling the case pro bono. Cindy Mathis Spencer, the district clerk at the time, put the case on the docket and issued a citation against the child's father without charge.

Then Tracy Powers was elected as Grayson County District Clerk and the case went to court on Jan. 11, 2008. Johnston's client won back child support, and child support to be paid from that point forward. The support, according to the order, was to be paid in monthly installments beginning Feb. 1, 2008.

Johnston sent a letter to Powers' office asking that the office deliver a certified copy of the order of withholding to the employer. The letter also reminded Powers that because Johnston's client had filed an affidavit of inability to pay, Powers should not charge any fees on the filing.

Shortly after, Johnston's office learned that Powers didn't intend to issue the certified copy until the fees were paid.

Speaking about the case this week, Powers said the she refused the request because she understood Texas Rules of Civil Procedure Rule 145 to mean that the affidavit covers the costs of an original action. "A request for a copy of the Order to Withhold Child Support is typically after judgment and is not covered by the Affidavit of Indigency," Powers said. "Furthermore, the $15 fee is a 'service' fee not a 'filing' fee; there is a cost to the county to mail documents by certified mail as well as the time and effort for a deputy in my office to prepare the documents, certify them and then mail them by certified mail; thus the 'service' fee."

Johnston sued Powers to get her to issue the certified copy in order to enforce the child support order Johnston's client had received. Visiting Judge Richard Beacom issued a declaratory judgment saying Powers should not charge the fee.

Johnston said, "We have been told by counsel for the Office of Court Administration that the court's ruling will be incorporated into the District Clerk Procedure Manual, which will affect all 254 district clerks in the state."

Kearney said the fact that Johnston took his client's interest so to heart was one reason she nominated him for the award. "He is just simply a very genuine warm, wonderful volunteer," she said.