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Greg Abbott Supports Big Business over Rape Victim

Sep 07 2014
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Most everyone living in a major media market in Texas has seen State Senator Wendy Davis’s first statewide campaign ad released during the first week of August claiming that Texas Attorney General and gubernatorial candidate Gregg Abbott sided with a company who hired a sexual predator and against a sexual assault victim. The best way to understand this case is to begin with the cast of characters.

  • First, there is the Scott Fetzer Company which, in 1992, was doing business in Texas as Kirby Vacuum.
  • Second, there is the San Antonio-based Sena Kirby Company which, in 1992, was a Kirby distributor owned by Leonard Sena.
  • Third, there is a sex-offender named Mickey Carter who was recruited by the Sena to be a Kirby dealer (salesperson).
  • Finally, there is Kristi Read, a married mother with children.

The Kirby Company (Kirby) is a manufacturer of vacuum cleaners and other accessories based in Cleveland, Ohio. It is a division of the Scott Fetzer Company which is owned by Warren Buffett’s Berkshire Hathaway, a multinational conglomerate holding company. For most of the past century, Kirby products have been sold door-to-door through in-home demonstrations. These products are exclusively marketed by independent distributors who operated pursuant to a “Kirby Independent Distributor Agreement.” These independent distributors are required to recruit salespeople known as “dealers” who go door-to-door to conduct the in-home demonstrations and installation of any products manufactured by the Kirby Company.

In a December 31, 1998 decision, the Texas Supreme Court described Mickey Carter’s relationship as that of “an independent contractor subject to a ‘Kirby Independent Dealer Agreement.’” The Sena Kirby Company (Sena) did not conduct any kind of background check on Carter prior to hiring him, and according to a May 1, 1997 decision by the Third Court of Appeals of Texas, Kirby did not “require its distributors to conduct background checks on prospective dealers.”

In his employment application with Sena, Carter listed three references and three prior places of employment. The Supreme Court pointed out that had Sena checked, it “would have found that women at Carter’s previous places of employment had complained of Carter’s sexually inappropriate behavior. Sena also would have found that Carter had been arrested and received deferred adjudication on a charge of indecency with a child, and that one of the previous employer’s records indicated that Carter had been fired because of that incident.”

Further, the Court of Appeals pointed out that this particular employer’s file contained a copy of a confession Carter had given to the police after his arrest on the child sex offense. The confession stated:

“First I want you to know I have a problem. I need help. I was in [a] psychiatric ward when I was in the Army. I have this thing in my mind that controls me at times. I can’t help what I do. Like I go outside naked. I expose myself. I do things that I do not have control of … I know I need help. I want someone to help me. Please, have them get me some help.”

Undeniably, Carter had psychological problems with sexuality, and his sexual proclivities were well known in his immediate community. Carter and his wife had been evicted from a number of apartments because of what the Court of Appeals called “sexually inappropriate conduct.” People living in the apartment complex where Carter lived at the time he was hired by Sena were aware that he had exposed himself to two young girls living in that complex. In fact, one of the references Carter placed on the Sena employment application was aware of these incidents and other examples of Carter’s inappropriate sexual conduct.

Sena did not contact this reference prior to hiring Carter.

In March 1993, Carter scheduled an “in-home demonstration” with Kristi Read, the mother of two children. For reasons not explained in either opinion by the Supreme Court or Court of Appeals, Carter had several contacts with Read. One morning he brought donuts to the Read residence after which he followed the mother to a playground where he played with the mother’s daughter. That afternoon Carter returned to the residence where he sexually assaulted her while her children were taking an afternoon nap.

Read and her husband sued Kirby, Sena, and Carter for negligence and gross negligence. The claims against Carter were “non-suited” before the trial began. A jury ultimately returned a verdict awarding the Reads $200,000 in actual damages and $1,500,000 in exemplary (punitive) damages. The jury found Kirby 80 percent negligent and Sena and Read 10 percent negligent, respectively. It can reasonably be assumed that Read’s negligence was based on her having non-sales contact and conversations with Carter. In any event, the trial court reduced the actual damages to $160,000 and the exemplary damages to $800,000. Kirby appealed these damage awards to the Court of Appeals. The appeals court upheld the actual damages award and reversed the exemplary damages award.

Between 1920 and 1993, there had been three sexual assaults by Kirby dealers during “in-home demonstrations.” The Kirby Company was aware of these assaults, and thus had some foreseeable risk—albeit minimal—that sexual assaults could occur during its in-home demonstrations. The Court of Appeals put it this way: Kirby had “knowledge of the peculiar risk of sending persons of unknown backgrounds into private homes, a knowledge arising in part from Kirby’s specific awareness of prior assaults by Kirby dealers.”

The Read lawsuit presented the claim that while Kirby did not have a duty to screen, train and supervise its dealers, the company had a duty inherent in its “direct contractual relationship with its distributors,” to take “reasonable precautions” in the manner in which the distributors hired dealers. Underlying this duty was whether Kirby had control over Sena sufficient to be what’s called “vicariously liable” for any injury caused by the independent contractor.

The Court of Appeals said this inquiry rested on who had specific control over the safety and security of the Read residence rather than on who had general right of control over the in-home demonstrations at the residence.

“ … Kirby retained the right to control precisely where and how its products were to be sold—through personal in-home demonstrations,” the court said. “After retaining this control in the present case, Kirby failed to take any precautions regarding Sena’s activity on recruiting dealers to perform such demonstrations. Because Kirby retained the right to control where and by what method its distributors and dealers sold Kirby products, and because it was this aspect of the marketing process that gave rise to the risk of harm to homeowners, we conclude Kirby had a duty of care toward Read …”

This reasoning formed the basis for the Court of Appeals’ finding that Kirby acted negligently and, therefore, Read was entitled to actual damages. The court, however, said this negligence did not amount to gross negligence, and thus, Read was not entitled to exemplary damages. The court’s decision was unanimous. Six justices on the Texas Supreme Court agreed with the finding by the appeals court. Three justices, including Abbott, did not.

Justice Nathan L. Hecht, joined by Justice Priscilla Owen, wrote a more extensive dissent than the court’s majority opinion, calling it an “aberrational and therefore not of much concern.” Abbott’s dissent, also joined by Justice Owen, was less detailed. His dissent was summed up in its opening paragraph:

“Kirby retained control over where the work was to be performed, not over who was to perform that work. Failure to require background checks of potential dealers relates to who the dealer is, not where the dealer works. As a result, the requisite relation between the control retained and the alleged injury is missing. Because the court holds to the contrary, I dissent.”

In response to the Davis ad, Abbott supporters have said the attorney general’s dissent was based on the law. Nine justices disagreed with him. We believe, however, that Abbott’s dissent was strictly a “pro-business” ruling. Despite being a significant beneficiary of tort litigation, Abbott has a legal history, with the use of so-called “tort reform,” to deny other injured victims the right to sue and collect damages from companies who caused their harm.

The Davis ad has been criticized by opponents and supporters alike for being a “negative attack ad.” We disagree. Political fact-checkers have said the ad is an accurate depiction of the facts. Nine judges said the Kirby Company acted negligently. Abbott said it did not. In fact, Abbott specifically said “… Kirby owed no duty to Ms. Read under the circumstances of this case.” The simple truth is that Kirby was aware of the risk involved in requiring dealers hired by its distributors to go door-to-door to sell its products through “in-home demonstrations.” There had been prior sexual assaults by Kirby products dealers, thus the risk of sending dealers who had not been background checked into unsuspecting customer homes was foreseeable. Kirby controlled every aspect of the “in-home demonstrations,” including the prohibition of any other method being employed to sell its products and services. At a minimum, Kirby had a duty to require its distributors to conduct background checks on their dealers before allowing them to enter private homes to sell the company’s wares.

The fact that Greg Abbot did not believe Kirby owed this duty to the sexual assault victim in this case creates both a legitimate and responsible opportunity for Sen. Davis to inform the public about the attorney’s “pro-business” stand over consumer protection, even in a case where the consumer was the victim of a violent sexual assault.

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  • Avatar Joffre Cross II (Jeff) ★★★★★ 2 years ago
    Although I am not a client, John Floyd contacted me the same day I sent an email requesting advice, answered my questions and even when further to assist with my issue and communicated … More with me the next day. A true credit to his profession and I can only imagine how well he provides services to his actual clients!
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    I give Mr. Floyd 10 Stars if they were available so I'm giving him five that's all that's available. The first time I left a message for him it was on a Friday after … More 5 p.m. and within 15 minutes he called me back I told him I needed to buy a lotto ticket because that has never happened. I knew from our chat and him calling me back that he was different from any attorney I've tried to talk to left messages never got called back they didn't even know what I needed and neither did Mr. Floyd but he did call me back. I was very interested in meeting with mr. Floyd about my case because I felt he was very transparent honest and genuine. If you've ever dealt with attorneys they don't have those traits but Mr. Floyd does. He was very honest with me told me what I could and could not do with my case. He is not egotistical he's very compassionate and he actually reads the documents you sent him unbelievable that's never happened. He will be the only lawyer I refer to anyone that needs his expertise. If you're in need of a criminal defense attorney please give John T Floyd a call you will not be disappointed.
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    Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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    John Floyd Law Firm is highly recommended for your legal needs. He and his staff are highly professional in every aspect. Easy and comfortable feeling talking with him, and he understands … More your needs and explains your legal advice in a way you can understand. Enough just cant be said. Thank You Sir.Positive
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    John was kind enough to assist me with legal advise on my firearm gun rights restoration. I highly recommend him and his firm. Very professional and knowledgeable. If I need assistance … More in the future I will definitely go back to him.
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    What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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    John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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    I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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    Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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    Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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    Very helpful highly recommended for any Question / case will definitely keep he's name and number for any other legal advice
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    Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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    One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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    Im impressed. This guy was polite and professional and most important...he listened.
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    Good experience and very good lawyer
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    It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
  • Avatar Andrew Vo ★★★★★ 3 years ago
    John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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    One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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    I had the opportunity to read an article that Mr. Floyd wrote and it was very interesting. I called him about the article and advice concerning a similar situation. He not only gave … More me excellent advice, he pointed out not just what I wanted to hear but what I needed to hear concerning my situation. The Good, The Bad and The ugly in a manner or speaking. He spoke with an open and honest heart with information to help me and not just to get a client.
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    If you are in trouble and need a lawyer, contact the John T. Floyd law firm. Some of the best lawyers in Texas work there! Understanding and helpful lawyers and staff that will do all … More they can to help you 😊
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    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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    He was very truthful and honest with us very great man I would recommend him and we would use him again
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    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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    He explained my case better then any other lawyerPositive
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    Very informative
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    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
    Responsiveness, Professionalism …More
  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
    Responsiveness, Professionalism, Value …More
  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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