By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Before the court date, Lily Matheson, policy director for the Office of Child Support Enforcement at the U.S. Department of Health and Human Services, appeared to side with O'Donnell in a March 1, 2004, e-mail to her boss, Commissioner Sherri Heller. "It is a state law issue to resolve whether a Court can order payments to go through the GAL without the custodial parent being given an option not to have payments go through the GAL," she wrote. "As long as the payments must first be sent to the SDU, we would not dictate what is permissible for court activity in this regard." Heller declined to comment to the Dallas Observer.
The case of O'Donnell v. Abbott was wrapped up in a one-day bench trial on November 12, 2004, but it would take more than a year for Judge Lee Yeakel to render a decision. In the meantime, state Representative Ken Paxton, a big supporter of the GAL program in Collin County (and the beneficiary of $8,500 in campaign contributions from O'Donnell from 2003 to 2008) worked with Heller and other legislators to craft two House bills that would resolve the conflict over the consent issue between the OAG and O'Donnell and enable GAL to continue to receive payments from the SDU. While HB 1238 allowed signatures on divorce degrees to constitute written consent, HB 2668 enabled private entities such as GAL to operate as local registries capable of receiving child support payments if appointed by a court.
Although the OAG attempted to amend language in HB 2668 and questioned whether HB 1238 violated federal law, both bills passed the House and Senate in May 2005 without opposition and were signed into law by Governor Rick Perry. But none of that mattered—not after Judge Yeakel ruled against O'Donnell in September 2005, holding that divorce degrees don't amount to consent because the parties "were, in practical terms, ordered to accept the arrangement." Yeakel also held Paxton's legislation was of no consequence since the bills were not retroactive. O'Donnell appealed but got no help from the 5th U.S. Circuit Court of Appeals.
The bad news had only begun for O'Donnell. Margot Bean, who had replaced Heller on the federal level, sent a February 16, 2006, letter to Alicia Key, who had replaced Bryant on the state level, and wanted to know whether Paxton's bills complied with federal law. Despite previous statements from Heller and Matheson leaving the issue in the hands of the state, Bean said the bills in fact violated federal law.
Paxton sent letters to federal officials and marshaled a parade of powerful politicos to urge Bean to change her mind. "...[This] decision has the effect of decreasing competition and potentially decreases the likelihood that the custodial parent will receive their child support payment," wrote Governor Rick Perry in a letter to Bean's superior, Secretary Michael Leavitt.
Bean heard from State Senator John Carona from Dallas and six state representatives who together wrote that GAL was more efficient than any state government in the country and applauded it for not using tax dollars. "To say we are impressed would be an understatement."
Abbott even appeared to take Paxton's side: "We would appreciate your very serious consideration of [Paxton's] request and look forward to learning whether your decision in the matter has changed based on the further information provided with respect to the action of the Texas Legislature and the Governor."
But O'Donnell thinks Abbott's letter, which was short on substance and less supportive than others, was simply a ploy, and believes Abbott's subsequent actions belie his apparent support for the legislation. "At that point in our situation, he wasn't sure which way the tide was going to turn, and he just wanted to make sure that he had plausible deniability," he says.
On February 15, 2008, the OAG sent O'Donnell a letter instructing him to obtain consent forms in the many thousands of cases without them, citing the federal court ruling. O'Donnell says the OAG then began intercepting his clients, sending them letters with little explanation other than stating their payments would now come from the state as opposed to the guardian.
"I'm angry through this thing, and you can sense it in every meeting," O'Donnell says. "The water-cooler talk was, 'This guy's a prick,' and yeah, I'm a prick. I'm being attacked by my government."
Ten days later, Dallas County family court Judge Lynn Cherry signed a temporary restraining order blocking the OAG's effort to divert cases from GAL and issued the TRO despite the OAG's argument that the continuing use of GAL would jeopardize more than $300 million in federal funding. Cherry, a supporter of the program, refused multiple interview requests.
Her TRO caused the OAG to file a writ of mandamus against the seven Dallas and Collin County judges who still used GAL to force them to stop using the program immediately. The higher courts denied the mandamus, but on June 27, the Texas Supreme Court told Cherry to withdraw her TRO.
In May 2008, amid the flurry of state court litigation, Paxton and six other state reps tossed up one final Hail Mary, hoping to enlist U.S. Representative Ralph Hall from Rockwall to sponsor federal legislation to resolve the guardianship issue. Their letter cited "numerous bureaucratic roadblocks" by the OAG and federal child support enforcement officials. "To be perfectly honest, we are puzzled and frustrated by the OAG staff's repeated efforts to undermine GAL services (and the lives of thousands of children)," Paxton and his colleagues wrote.