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Many Houston-area attorneys are mad at how new Harris County District Clerk Marilyn Burgess is running her office.

Some say the office an “insane mess,” and “complete nightmare,” and its ineptitude is making lawyers' jobs harder as they spend hours of their time—which amounts to their clients' money—fixing the office's errors. Burgess has faced the firestorm from lawyers on the office's Facebook group, “Harris County District Clerk's Legal Community Connection.”

But Burgess said while the Facebook page has become a landing ground for attorneys to complain, its members represent a small subset of the attorneys her office serves.

Harris County District Clerk Marilyn Burgess. Courtesy photo.

“I think it's very partisan,” said Burgess, who ousted former Republican District Clerk Chris Daniel in the November 2018 Democratic sweep, and took office in January. “I think they are a very small percentage of the people we serve on a daily basis. When I am out in the community talking to people, I get nothing but praise for our clerks.”

But lawyers say the clerk's office is rejecting e-filings at high rates for silly reasons, and the issuance of citations is sometimes delayed for weeks, which impacts court proceedings. Lawyers also criticized Burgess for sending invoices to attorneys and firms for long-past-due court costs and fees.

For example, Andrew Bayley, lead attorney for the Bayley Law Firm in Houston, said he received five or six invoices from the clerk's office that totaled about $1,000.

“I can't very well go and expect my client to pay that,” Bayley noted, adding that four of the cases are five or six years old, and another spans back to 2011.

Burgess said she decided to put a pause on billing attorneys directly for past cases, as she consults with other county offices about whether she's allowed to collect from lawyers.

“We heard the attorneys' complaints. We understand their position, that if the case is completed and closed, and they no longer have a relationship with that client, it's hard to go back to them and ask them to pay,” Burgess explained. “We will make the case the attorneys aren't supposed to be the responsible party. It's the client.”

Serious Errors

There are also some complaints about oddball clerk errors—some very serious.

For example, Houston solo practitioner Rob Clark said that a clerk dismissed his case for want of prosecution without notifying either party. His opposing counsel's legal assistant was on the phone for two hours trying to figure it out.

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“The clerk was absolutely a pain in the ass and said it's not her problem; she doesn't know what to tell me; you are going to have to deal with it,” Clark said. “It's just ludicrous.”

Andrea Chan, an attorney at Olson & Olson in Houston, said she represents a government agency in a case against a pro se litigant. A clerk entered Texas Supreme Court Chief Justice Nathan Hecht's bar card number into the case, making it appear that Hecht represented the pro se litigant and had scheduled a hearing on Chan's client's motion for summary judgment. Chan's paralegal spent time calling various courts to figure out what happened.

“Nobody had any explanation for it,” said Chan, who felt frustrated.

Burgess admitted the two examples were clerk errors.

“There are going to be mistakes. We acknowledge that when we make a mistake, we own it. We work on our training and talk to the people who made the mistake. People get written up for these things,” Burgess said.

Attorneys say when Burgess came into office, she eliminated long-time clerks, and that new staff members make errors because they lack training to do their jobs well.

Burgess said in total, 37 people did not continue in their jobs once she assumed office. Among those cuts, Burgess eliminated between 12 and 15 middle-management positions because the office was “top heavy” with “too many bosses.” For the rest, she then met with managers and supervisors to identify low-performing staff, who were replaced by promoting other clerks to higher positions, and then hiring new staff for resulting vacancies. She said she's working to boost on-the-job training for new clerks.

E-Filings and Citations

Lawyers are frustrated at having to waste time to fix e-filings that the office has rejected.

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“The default mode in Harris County prior to the turn of the year seemed to be, 'Let's look for a way to accept documents to keep the system moving,'” said Bellaire solo practitioner Scott Rothenberg, who spent six hours over three days dealing with one rejection. “The default mode has turned into, 'Let's find a way to reject this document.'”

Burgess said her office rejects 6.5% of e-filings, which represents a 1% increase since she took office. It's because she began enforcing a state guideline to reject e-filings that contain hyperlinks, and instructed clerks to reject filings in which an attorney asked for a fee waiver, but is not entitled to it.

“Overall, we are right up there with the top 10 counties for rejection rates,” Burgess said. “We are working on making sure we have better comments when a file is returned.”

Some attorneys have posted on Facebook that it's taken up to 11 days for the office to issue citations, and by then, the deadline for temporary orders hearings has passed.

Burgess said whenever citation takes longer than five days, an attorney should call her office. Citations usually take three to five business days, and she's created a goal for her office to cut the time to three days. There's high staff turnover in the citations department and a backlog, and staff are working on Saturdays to catch up.

“There is a learning curve going on,” she said.

$80 Million Past-Due

Burgess said she's “bound and determined” to collect past-due bills. She earned an accounting degree at Louisiana State University and was a certified public accountant for 30 years.

“The state determines the fees we are to collect. The government says I am responsible for collecting them as district clerk. I don't know why past administrations chose not to do that, but as a CPA, I'm very cognizant of my fiduciary duties to the citizens of Harris County.”

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When she came into office, she said she was appalled to realize previous district clerks hadn't collected all the fees and costs that were due, totaling $80 million. Most of that was for fees to modify a divorce or modify child support, case transfer fees, severance fees and a $5 judicial training fee that the office accidentally did not bill between September and December 2017.

Former District Clerk Daniel didn't return a call seeking comment before deadline.

Burgess said her office sent out about 22,700 invoices for past-due amounts and 75% went to individuals while 25% went to attorneys. The billings totaled $4.07 million and Burgess said she's collected nearly $600,000.

“I've taken a lot of heat from the attorneys, but the citizens of Harris County are very happy,” she said. “No matter what you do, you are not going to please everyone.”