SCOTX Justice John Devine’s oversight of trust raises ethics concerns

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In January 2022, Elvie Kingston’s dementia took a turn for the worse. The 76-year-old millionaire and longtime conservative activist was declared by a doctor to be partially incapacitated, after which she signed legal documents that removed her family’s right to make decisions about her health and finances.

Two years later, those powers remain almost entirely in the hands of a state Supreme Court justice and his wife.

Justice John Devine has said Kingston is essentially family. In public political appearances, he’s described their relationship as loving — like mother and son — and said he and others helped rescue Kingston “from a really dire situation.”

But legal experts say Devine’s control of Kingston’s trust is a clear violation of Texas ethics rules that prohibit judges from overseeing the trust or estates of non-family.

At the same time, his wife Nubia, serves as Kingston’s legal guardian. The arrangement gives the Devines broad control over Kingston’s personal, financial and medical decisions — despite objections from Kingston’s niece and three of her friends, who say she was once close with the Devines but, in the years before her mental health declined, made it clear that she didn’t like or trust them.

“She didn’t want anything to do with them,” said Dorothea Hosmer, who said she has been Kingston’s close friend for 25 years. “So when I found out John Devine basically has control of her, I was dumbfounded.”

Devine didn’t respond to requests for comment for this story. But publicly he has shared pictures of him and his family eating meals with Kingston, dancing and traveling together and brushing her hair.

“My commitment to [Kingston] was (that) as long as she could enjoy life, we would protect her and keep her,” he said of him and his wife.

In August 2022, Kingston’s niece, Michelle Hartman, filed a complaint against John Devine with the State Commission on Judicial Conduct, accusing him of flagrantly violating the judicial ethics code and using her aunt’s trust for his own financial benefit. The commission declined to comment on the complaint or confirm any related investigation.

In court filings, however, Nubia Devine accused Hartman of trying to exploit her aunt’s finances. She said, under Hartman’s watch, Kingston was living in squalid conditions that posed an “imminent danger” to her health and necessitated that Nubia Devine step in.

John Devine said through an attorney that he has fully complied with all disclosure requirements as set out in the trust and under Texas law. Nubia Devine and her attorney did not respond to requests for interviews or a detailed list of questions.

A spokesperson for the Texas Supreme Court said “the court is aware of the claims involving Justice Devine and has no comment on the matter.” The court did not respond to a follow-up question about whether any exemption was granted to Devine that would allow him to continue serving in that role.

The Texas Code of Judicial Conduct states that “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.”

Devine has for years faced questions about his ethics as a judge. He is one of three Republicans on the all-GOP Supreme Court who is up for reelection this year, running against Harris County District Court Judge Christine Weems.

Ethics concerns

Earlier this year, Devine was confronted by a private media firm working for his GOP primary opponent about his relationship with Kingston. He denied that he was violating ethics rules because they considered each other family. “She’s held me out to be her son for 30 years,” he said, according to a video of the exchange.

Legal and judicial ethics experts disagree. “The rules are pretty clear,” said Heather Zirke, director of the Miller Becker Center for Professional Responsibility at the University of Akron School of Law. “A judge can serve in that capacity for their own family. But serving as a trustee or administrator for a non-family member still creates the potential for a conflict of interest and serving as a trustee or administrator for a non-family member is prohibited by the Code of Judicial Conduct.”

It’s unclear what compensation John and Nubia Devine may derive from their roles with Kingston’s affairs, but as of 2007, they were not listed as beneficiaries of her trust, court records show. The trust dictates that if Kingston were declared incapacitated, her care would be funded from the trust, at the discretion of the trustee. Since 2022 — the year Kingston moved in with the Devines — Nubia Devine’s occupation has been listed as “caretaker” on her husband’s personal financial disclosures.

Zirke and two other legal experts said Devine’s oversight of Kingston’s trust raises a litany of other concerns about conflicts of interest they said could undermine the broader credibility of the courts.

Texas’ judicial code explicitly demands that judges avoid even the appearance of impropriety. But as a justice, experts said, Devine could end up ruling on cases that affect trust law or the tens of thousands of dollars in monthly oil royalties included in the trust.

“The judiciary runs on public confidence,” said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts, a nonprofit that focuses on improving the judiciary. “Any time you have a judge in a situation where they are interacting with the legal or financial world, it makes you wonder if their title and their power force others to pull punches.”

The Kingston case marks the latest questions about John Devine’s judicial ethics dating back to his time as a Harris County district judge in the 1990s, when he was sanctioned by the State Commission on Judicial Conduct for hosting a campaign event in his chambers. In 2002, Devine also had to correct eight years of financial disclosures after the Texas Ethics Commission found that he had failed to note his position as the president of a real estate company.

In March, he narrowly survived a Republican primary in which his opponent attacked him for, among other things, missing more than half of oral arguments before the court last year as he campaigned for reelection, and recently auctioning off tours of his chambers for a GOP fundraiser.

Earlier this year, The Texas Tribune reported that Devine did not recuse himself from a high-profile lawsuit against Southern Baptist leader Paul Pressler and his former law partner Jared Woodfill despite working for their firm at the same time that the plaintiff in the suit alleged he was molested by Pressler while also an employee of the firm.

In February, the Tribune also reported on leaked audio in which Devine accused his “brainwashed” colleagues of caring more about legal procedures than “fidelity to the Constitution.” And in April, Devine was criticized by Democrats for a 2023 speech in which he said they would cheat in this year’s presidential election.

Devine has for decades been a fixture of Texas’ conservative Christian legal movement. He has called church-state separation a “myth,” once fought to have the Ten Commandments posted in his courtroom and, in his 2011 bid for the Texas Supreme Court, claimed to have been arrested 37 times at anti-abortion protests before becoming a judge.

“Things got sour”

Kingston was for decades a staple of the Houston-area GOP. In 1993, she co-founded the Texas Tea Party Republican Women, and spent 30 years guiding the organization as it aimed to restore “the country to its Godly heritage” and “Judeo-Christian principles.”

Kingston was friends for years with Devine, who was similarly well known in Harris County conservative circles for his time as a district judge and frequent candidate for elected office.

In 2007, according to court records, Kingston and her husband amended their trust to name John Devine as the sole trustee once they both died or became incapacitated — unless he was disqualified, in which case the Kingstons’ niece, Hartman, would become trustee. After Kingston’s death, Hartman and her brother were also set to be the main beneficiaries of the trust, along with a local church.

Speaking to the group that Kingston co-founded in 2023, John Devine said he had no idea that he was named as trustee of Kingston’s trust until 2022.

Kingston’s friends said Devine’s six kids called Kingston “G-ma,” and that the Devines were often at her house. Kingston, who has no children and has been a widow since 2010, liked the children’s affection and felt important for knowing a sitting Supreme Court justice, her friends said.

But around 2016, three of Kingston’s friends separately told the Tribune that they recalled a dramatic shift in how she spoke about the Devines.

“Things got sour,” said Mary May, who said she’s been Kingston’s close friend for roughly 30 years. “She was so sideways with him in the end – to the point where if I asked her about him, she’d become very agitated and holler, ‘I don’t want to talk about him. Don’t talk about him or his family – ever.’”

The other two friends similarly recalled Kingston expressing a distrust of the Devines because she believed they had a history of financial problems. (Court records show that around 2010, John Devine was sued for tens of thousands of dollars in credit card debt).

“They were always asking her for things,” said another one of Kingston’s close friends and neighbors, who also asked not to be named for fear of retaliation. “Elvie told me they always lived beyond their means.”

Kingston felt the opposite about her niece, and made it clear that she expected her to eventually handle Kingston’s affairs, according to the three friends, who were connected to the Tribune by Hartman. Hartman was previously Kingston’s power of attorney.

“She was very fond of her niece,” Hosmer said of Kingston.

Documents provided by Hartman show that, in 2018, Kingston met with her longtime estate attorney to draft changes that apparently would have given full control of her will, estate and trust to Hartman and Hartman’s daughter in the event of her death — and supplanted Devine as successor trustee. Kingston paid the firm $3,250 for a consultation, but was refunded after deciding not to move forward with the changes, according to a note on the invoice. Kingston’s attorney did not respond to an interview request, and it’s unclear why she did not proceed with the plan.

Around 2019, Kingston’s friends said they started noticing signs of her mental decline. She’d repeat stories, weep at random, and started demanding to carry a purse full of blank checks, credit cards and wads of cash — a troubling sign, her friends said, given her reputation for frugality. At Kingston’s house, May said, mail continued to pile up.

In the months leading up to the COVID-19 pandemic, May said she began helping Kingston organize her mail to make things easier for Hartman once she inevitably had to take more control of her aunt’s life. As they sifted through the piles, May said she’d take notes on envelopes so that Hartman would know what to keep and throw away.

She said she still vividly remembers asking Kingston what to do with a card that the Devines sent her in 2017. “You can burn it,” she recalled Kingston saying.

Instead, May said she separated it into the pile that could be discarded after adding a note for Hartman: “Not on good terms with him.”

Kingston’s dementia severely worsened over the next two years, Hartman and her friends said. Hosmer recalled one incident in 2021, after she and Kingston spoke at length on the phone. Minutes after they hung up, Hosmer said, Kingston dialed her back to see if she’d like to talk.

“She had no clue that we’d just talked for about 45 minutes,” Hosmer said.

A fast decline

As Kingston’s health precipitously declined, an acrimonious dispute over her care played out — complete with accusations of negligence and exploitation from parties on both sides. Ethics experts say that the subsequent legal drama shows precisely why judges should not be involved in such disputes, a sentiment shared by Hartman and others who said they feel that John Devine’s status as a sitting Supreme Court justice has tipped the scales in his favor.

In November 2021, Kingston contracted a severe case of COVID-19 that required hospitalization and, eventually, for her to be placed in a long-term care facility, according to court records. Hartman said the illness quickly sped up Kingston’s deteriorating mental health.

“She has psychosis very severe,” the head of long-term care facility wrote to Hartman in January 2022 while telling her that Kingston would need to find another home. “She requires a lock down facility or another home that can deal with all her behaviors.”

Kingston was moved to a new facility soon after, emails from Hartman show. Three weeks later, Kingston left with two friends to get dinner. Hartman reminded one of the friends that Kingston could only be gone for four hours at a time because of her condition, according to text messages Hartman provided. Nearly 24 hours later, Kingston had not returned to the facility as Hartman begged the women to get her back there so she could receive medication, according to the text messages.

Instead, Kingston and the friends went to an attorney, where she signed documents that removed her niece’s power to make legal, medical and financial decisions on her behalf. In court affidavits, the friends accused Hartman of having “locked down” Kingston and “intentionally isolating” her in a “filthy” psychiatric ward. They also alleged Kingston was physically abused by workers there — though it’s unclear if they filed any reports with authorities. Hartman provided emails showing that she was trying to get Kingston into a nicer residence around that time — a process made more difficult by her aunt’s documented behavioral problems, she said.

A day later, the attorney had Kingston examined via a webcam by a doctor who said she was “partially incapacitated” and incapable of doing many basic tasks, including managing a bank account, or bathing or using the bathroom without assistance. But, the doctor reported, Kingston was adamant about barring Hartman from handling her affairs, according to a copy of the medical examination and other court records.

At the time, Nubia Devine was campaigning for a Texas House seat. Two weeks after losing in the March 2022 primary, court records show that she applied to be Kingston’s guardian and to have almost full control over her finances. The attorney representing Nubia Devine is the same one who helped Kingston remove her niece’s power over her medical and other decisions weeks prior.

Nubia Devine was granted temporary guardianship of Kingston, who was then relocated from the Houston area to the Devine’s home in Travis County. In July 2022, Kingston was declared fully incapacitated, according to medical records that show she believed the year was 1992.

Nubia Devine later applied to be the permanent guardian of Kingston. That request was opposed by Kingston’s guardian ad litem, a person appointed by the court to represent Kingston’s best interests, and who argued that Nubia Devine was not a “suitable” candidate to be her guardian and that the court should find a “neutral” third party.

In an email provided by Hartman, another court-appointed attorney told her that she had recently spoke to Kingston, and said that she believed Nubia Devine was “ taking very good care of her,” calling her “extremely patient.”

The attorney also said that she and another person involved in the guardianship case were trying to get John Devine to resign as trustee of the trust. “We prefer that there be a corporate trustee serving for everyone’s protection,” she wrote.

Neither the guardian ad litem, nor the court appointed attorney, responded to requests for interviews.

Nubia Devine was named Kingston’s permanent guardian in September 2022, a few months after John Devine was confirmed as her trustee after filing an emergency application with the court.

During his 2023 speech to the group that Kingston co-founded, John Devine showed photos of Kingston and his family on trips together, at restaurants and other activities.

Kingston was not there for John Devine’s speech, he said, because “to see you all would be very difficult for her as she reflects on what she can and cannot do any longer.”

“She has taught us a lot of things about commitment and the old biblical testimony that we should be taking care of the innocent, and the widows and the orphans,” he said, adding that his wife was “truly the angel” for the care she provided Kingston.

Nubia Devine said in court records last year that Kingston was doing well, and often attended church, concerts and political events with their family.

Last month, however, Nubia Devine alerted the court that Kingston’s “need for physical care increased significantly, including bathing, dressing and other daily activities” and that Kingson had been moved to a facility in Williamson County in August.

The move was a surprise to Hartman and some of Kingston’s friends, who say they have been unable to see or contact her for more than a year. The guardianship agreement gives Nubia Devine broad control over who visits Kingston.

“Nobody can reach her,” Hosmer said. “I was at the hospital with her when her husband passed away. We were close friends. And for them to basically shut out me or anybody else who was a part of her life — to me, that raises red flags.”