Federal Law

Judge James Oakley of Burnet County; Roped In Twice and Escapes Again

Texas Judicial Ethics Guide : We condone everything and welcome Judges to do, and say, whatever they want. Especially repeat offenders.

Strike I; April 2018, Public Admonition

Hon. James Oakley SCJC Page (2018)

Strike II; October 2019, Public Admonition

Listed in SCJC Opinions Page 

Texas Judge Sanctioned for a Second Time in Short Succession, this time for Endorsing Candidate—for Electric Cooperative Seat where He is a Board Member

A constitutional county court judge in Central Texas was sanctioned for publicly endorsing a candidate, even though the candidate wasn’t running for a “public office,” because the jurist still lent the prestige of his office to advance the candidate’s private interests.

In the midst of election season, a new court ruling reminds Texas judges that ethical rules prohibit them from endorsing other candidates—no matter what office these candidates seek.

A special court of review has publicly admonished Burnet County Judge James Oakley for endorsing a candidate running for the Pedernales Electric Cooperative. Although that position doesn’t actually count as a “public office,” which the state’s ethics rules prohibit judges from endorsing, Oakley’s sanction came from another rule violation for lending the prestige of his judicial title to serve the private interests of the other candidate.

“I don’t believe that the judicial conduct commission should have the ability to take away my constitutional right of free speech, or anyone’s, for that matter,” said Oakley, a nonlawyer whose duties are mainly administrative to preside over Burnet County’s commissioner’s court.

But as a constitutional county judge, he also has some judicial duties to preside over uncontested probate and guardianship proceedings, explained the Oct. 25 ruling by special court Justice Greg Perkes of the 13th Court of Appeals, joined by Justices Meagan Hassan of the 14th Court of Appeals and Robbie Partida-Kipness of the Fifth Court of Appeals.

Oakley is also a board member of the Pedernales Electric Cooperative, a nonprofit utility company.

He publicly endorsed the campaign of Donna Holland Wilcox to run for the same board, and she used the judge’s name, title and photo on her campaign materials. If she had won, the position would have paid a $36,000 stipend annually. But she lost.

Serving on the Pedernales Electric Cooperative’s board wouldn’t count as a “public office” under the Texas Code of Judicial Conduct, the ruling noted.

That’s an important distinction, since Canon 5(2) prohibits a judge from allowing “another candidate for any public office” to use his name or likeness as an endorsement.

Yet the commission charged Oakley with violating another rule that says a judge can’t “lend the prestige of judicial office to advance the private interests of the judge or others.”

Oakley argued that Wilcox didn’t stand to gain any “private interests,” because if elected to the PEC board, she wouldn’t have gotten any secret or confidential benefits.

The special court determined that the meaning of “private interests” in the rule was broader. Wilcox stood to benefit individually from her election, and so it did constitute a private interest, the opinion said.

Also, he argued that her $36,000 annual stipend counted as compensation paid to an elected official, and not a private interest, which is a precedent set in In re Hecht in 2006. In that case, then-Texas Supreme Court Justice Nathan Hecht, who is now chief justice, was sanctioned for publicly supporting Harriet Miers as a nominee to the U.S. Supreme Court. The sanction was overturned by a special court of review, which found that a Supreme Court justice’s lifetime tenure and salary safeguard the judiciary’s independence, so the benefits serve the public’s interest.

In Oakley’s case, Hecht did not apply, the opinion said. The Pedernales Electric Cooperative board isn’t a public office, and Wilcox getting a stipend to serve there did not serve a greater public interest, said the ruling.

“Instead, it constituted a ‘private interest’ as the term is commonly understood in the context of Canon 2B,” the opinion said.

The court determined that a public admonition was the appropriate sanction for the misconduct.

Oakley said he disagrees with the ruling.

“In Justice Hecht’s case back then in 2006, if a Texas Supreme Court justice is found to be OK to endorse a candidate for the United States Supreme Court, then certainly a county judge in Texas—a constitutional county judge—should be able to endorse somebody for an electric cooperative seat,” he said.

Jacqueline Habersham, interim executive director of the judicial conduct commission, declined to comment.

Who is Donna Holland Wilcox?

According to her LinkedIn profile, she runs a PR & Marketing Company but the website is redirected to a splash page for a domain registrar. However, you can see a link to this website here. She appears more of a political person, having been the Chairwoman of the Burnet County Republican Party for 3 terms until she was unseated in 2018 as a result of Judge Oakley’s endorsement.

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Burnet County Republican chair Wilcox steps down; Chasteen appointed to serve remainder of term

After wrapping up her responsibilities for the November 2018 general election, Donna Holland Wilcox stepped down as chairwoman of the Burnet County Republican Party after being elected to three terms since 2014.

“It has been an honor and a pleasure to serve my community in this capacity,” said Wilcox. “My commitment when elected in 2014 was to bring cohesiveness to the Burnet County Republican Party, increase awareness, and implement programs to get more people involved. I’m proud of the official work that the executive committee has done and of the amazing volunteers and activist who have successfully supported conservative candidates and causes across Burnet County and the Central Texas region.”

At a special meeting called by the Burnet County Republican Party executive committee, its members unanimously appointed Kara Chasteen to serve out the remainder of Wilcox’s two-year term, ending in June 2020. Chasteen previously served as chair of Precinct 15 and a member of the Burnet County Republican Party Executive Committee.

“Kara will do a great job of picking up where I left off as well as bringing in some new ideas to increase conservative voter turnout and involvement among our youth. I look forward to supporting her in every way possible,” said Wilcox….

State judicial board reprimands James Oakley for ‘tree and a rope comment’ Dailytrib.com

On Nov. 21, 2016, after authorities arrested Otis Tyrone McKane, an African-American man, and charged him with the murder of San Antonio Police Department Det. Benjamin Marconi, Oakley posted that it was “time for a tree and a rope” under the suspect’s photo.

Judge’s reply; “There was never anything racial about my comment,” Oakley said.

So What’s the “Special Court of Review” 3-Panel Opinion of the KKK Judge? (Strike II)

See TEX. GOV’T CODE ANN. § 33.034. We agree with the Commission that Judge Oakley violated Canon 2B and that a public admonition is the appropriate sanction.

FACTS [2]

The facts in this case are straightforward. Judge Oakley is the constitutional county judge of Burnet County, Texas. He performs judicial functions by presiding over uncontested probate and guardianship proceedings.

Judge Oakley also serves on the Board of Directors of the Pedernales Electric Cooperative (PEC), a member-owned, nonprofit corporation formed under the Texas Electric Cooperative Corporation Act (TECCA). The PEC’s primary purpose is to provide electricity to its members. It is the largest electric cooperative in the country and nearly all of the residents living in the service area are members.

The board manages the PEC on the members’ behalf. Each director is elected by the members to a three-year term. Only members are eligible to serve as directors.

Donna Holland Wilcox, a social acquaintance of Judge Oakley, asked him to publicly endorse her candidacy to serve as Director [1].

Judge Oakley agreed and permitted Wilcox to use his name, likeness, and judicial title as “The Honorable James Oakley, Burnet County Judge” in her campaign materials.

Some of these materials were mailed directly to the approximately 35,000 members in the district represented by Director 1; other campaign advertisements bearing Judge Oakley’s name and/or likeness were available on various social media platforms.

Wilcox’s campaign was ultimately unsuccessful, but had she been elected, she would have received a $36,000 annual stipend.


2 The following is taken from the evidence presented by the parties during a hearing conducted on August 26, 2019, including twelve admitted exhibits tendered by the Commission without objection and the testimony of Judge Oakley, the only witness called by either party.

It is undisputed that serving as a PEC director is not a public office. In fact, Judge Oakley believed his public endorsement of Wilcox was permissible under the Code of Judicial Conduct because the election did not concern a public office. See TEX. CODE JUD. CONDUCT, Canon 5(2) (“A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party.”).

RELEVANT STANDARDS & BURDEN OF PROOF

The Code of Judicial Conduct establishes the basic standards that govern judicial conduct. TEX. CODE JUD. CONDUCT, Preamble. Article V of the Texas Constitution provides that a judge may be disciplined for a “willful violation of the Code of Judicial Conduct.” TEX. CONST. art. V, § 1–a(6)(A).

“Willful conduct requires a showing of intentional or grossly indifferent misuse of judicial office, involving more than an error of judgment or lack of diligence.” In re Sharp, 480 S.W.3d 829, 833 (Tex. Spec. Ct. Rev. 2013) (citing In re Davis, 82 S.W.3d 140, 148 (Tex. Spec. Ct. Rev. 2002)).

The relevant inquiry is not whether the judge specifically intended to violate the Code of Judicial Conduct; rather, a willful violation occurs if the judge intended to engage in the conduct for which he or she is disciplined. In re Slaughter, 480 S.W.3d 842, 848 (Tex. Spec. Ct. Rev. 2015) (citing Davis, 82 S.W.3d at 148).

When, as here, a sanction is issued through an informal proceeding, our review “is by trial de novo as that term is used in the appeal of cases from justice to county court.” TEX. GOV’T CODE ANN. § 33.034(e)(2). The Commission bears the burden of proving its charges by a preponderance of the evidence. See TEX. GOV’T CODE ANN. § 33.034(f); Slaughter, 480 S.W.3d at 845.

 

ANALYSIS

Judge Oakley was charged by the Commission with violating Canon 2B by lending the prestige of his office to advance Wilcox’s private interests. See TEX. CODE JUD. CONDUCT, Canon 2B (“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .”).

Judge Oakley did not dispute that his conduct was willful; he readily admits that he knowingly authorized Wilcox to use his name, likeness, and judicial title to endorse her in campaign materials. See Slaughter, 408 S.W.3d at 848.

Instead, he contends that Wilcox’s election to the PEC Board of Directors would not have advanced her “private” interests because the position “provides no secret or clandestine benefits.”

Additionally, Judge Oakley relies heavily on In re Hecht for the proposition that compensation paid to an elected official does not constitute a private interest under Canon 2B. See 213 S.W.3d 547, 577 (Tex. Spec. Ct. Rev. 2006). We address each argument in turn.

A.           The Ordinary Meaning of Canon 2B

The Code of Judicial Conduct is interpreted in accordance with the rules of statutory construction. Id. at 564–65; see also O’Quinn v. State Bar of Tex., 763 S.W.2d 397, 399 (Tex. 1988) (“[O]ur disciplinary rules should be treated like statutes.”).

Statutory construction is a question of law. Hecht, 213 S.W.3d at 564; In re Caballero, 272 S.W.3d 595, 599 (Tex. 2008) (citing State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)).

Our role is to give effect to the drafters’ intent. Hecht, 213 S.W.3d at 564 (citing Crown Life Ins. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000)).

We read words and phrases in context and construe them according to the rules of grammar and common usage. TEX. GOV’T CODE ANN. § 311.011(a).

Words are given their ordinary meaning and we may consult legal or other well-accepted dictionaries to aid our inquiry. Hecht, 213 S.W.3d at 565.

We start, of course, with the language itself:

Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities

A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the

B. A judge shall not allow any relationship to influence judicial conduct or A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by

TEX. CODE JUD. CONDUCT, Canon 2.

Judge Oakley correctly notes that the Code of Judicial Conduct does not define the term “private interests.” See TEX. CODE JUD. CONDUCT, Canon 8B (defining other terms in the code). He focuses on the word “private” and asks us to adopt one of three alternative meanings of the word provided in Black’s Law Dictionary: “Confidential; secret.” Private, BLACK’S LAW DICTIONARY (11th ed. 2019).

However, we must construe “private” in the context of Cannon 2B, see TEX. GOV’T CODE ANN. § 311.011(a), where it modifies the noun “interests.” See TEX. CODE JUD. CONDUCT, Canon 2B.

When we place Judge Oakley’s proffered definition into context, the result is nonsensical.

See TEX. CODE JUD. CONDUCT, Canon 8A (stating that the Code of Judicial Conduct sections are “rules of reason”); City of Rockwall v. Hughes, 246 S.W.3d 621, 632 (Tex. 2008) (Willet, J., dissenting) (considering language in context “is rooted in common sense”).

Under Judge Oakley’s construction, a judge would only violate Canon 2B by lending the prestige of their office to advance the “confidential” or “secret” interests of the judge or others.

He concludes that because a director’s compensation is publicly available information (i.e., not “confidential” or “secret”) and the PEC provides electricity to the vast majority of the community it serves, Wilcox’s potential compensation did not constitute a “private” interest.

We find Judge Oakley’s narrow construction to be inconsistent with the stated objective of Canon 2 as expressed in its title: “Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities.”

See TEX. CODE JUD. CONDUCT, Canon 2; see also Hecht, 213 S.W.3d at 564–65 (explaining that in addition to the statute’s language, courts should consider “the objective sought, and the consequences that would flow from alternative constructions.” (citing Casteel, 22 S.W.3d at 383));  Ad Villarai, LLC Pak, 519 S.W.3d 132, 138 (Tex. 2017) (per curiam) (explaining that titles and headings are “permissible indicators of meaning.” (quoting Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 221 (2012))).

If we followed Judge Oakley’s construction to its natural conclusion, any impropriety or appearance of impropriety would be permissible as long as it occurred openly.

But violations take many forms; some are committed surreptitiously, see, e.g., In re Thoma, 873 S.W.2d 477, 490– 95 (Tex. Rev. Trib. 1994, no appeal) (conspiring to extort money from a party), while others take place in plain view. See, e.g., In re Roach, No. SCR 18-0006, at 4–12 (Tex. Spec. Ct. Rev., July 24, 2018) (publishing a book in conjunction with operating a referral service and advertising both through various mediums).

Thus, we find Judge Oakley’s construction to be inconsistent with the Code’s broad objectives of maintaining public trust and confidence in a fair and impartial judiciary. See TEX. CODE JUD. CONDUCT, Preamble, Canon 2A; Hecht, 213 S.W.3d at 564–65 (citing Casteel, 22 S.W.3d at 383).

Instead, we find the following definition of “private” in Black’s Law Dictionary to be consistent with the context of Canon 2B: “Of, relating to, or involving an individual, as opposed to the public or the government.” Private, BLACK’S LAW DICTIONARY (11th ed. 2019).

Thus, a judge violates Canon 2B by lending the prestige of the judge’s office to advance the “individual” interests of the judge or others.

See TEX. CODE JUD. CONDUCT, Canon 2B. The Hecht panel reached the same conclusion:

“We conclude that a private interest pursuant to Canon 2B is a personal or individual advantage or benefit gained by use of judicial office.” Hecht, 213 S.W.3d at 577.

This construction is consistent with Canon 2’s overall goal of avoiding impropriety or the appearance of impropriety, regardless of whether the violation is clandestine or overt. See TEX. CODE JUD. CONDUCT, Canon 2; Hecht, 213 S.W.3d at 564–65 (citing Casteel, 22 S.W.3d at 383).

When we apply the plain meaning of Canon 2B to the facts of this case, it becomes clear that Judge Oakley used the prestige of his office to advance Wilcox’s private interests.

The compensation Wilcox would have received—$108,000 over her three-year term—constituted a private interest because it would have benefited her individually. See TEX. CODE JUD. CONDUCT, Canon 2B; Hecht, 213 S.W.3d at 577; Private, BLACK’S LAW DICTIONARY (11th ed. 2019).

B. In re Hecht is Inapplicable

Judge Oakley insists, however, that this issue was already resolved in his favor by In re Hecht. See 213 S.W.3d at 577. Judge Oakley’s reliance on In re Hecht is misplaced; a key distinction in that case actually supports our determination that Judge Oakley violated Canon 2B. See id.

Then-Justice Nathan L. Hecht was charged by the Commission with violating Canon 2B after he publicly supported the nomination of his close friend Harriet Miers to the United States Supreme Court. Id. at 552–58.

The Commission argued that Miers’ private interests were advanced because serving as a Supreme Court Justice is a powerful and prestigious position with a guaranteed lifetime salary. Id. at 577.

In rejecting the Commission’s argument, the special court of review concluded that those benefits ultimately served the public’s interest because “[l]ifetime tenure and guaranteed salary safeguard the judiciary from interference from the other branches of government and promote judicial independence.” Id. In other words, those benefits were ancillary to the public office and its role in serving the public’s interest. Id.

Obviously, none of those concerns are present here. As Judge Oakley repeatedly acknowledged, serving on the PEC Board of Directors is not a public office. Therefore, the compensation Wilcox would have received was not ancillary to some greater public interest. See id. Instead, it constituted a “private interest” as the term is commonly understood in the context of Canon 2B. See TEX. CODE JUD. CONDUCT, Canon 2B.

 

C.           The Appropriate Sanction

After an informal proceeding, the Commission may sanction a judge by issuing a private or public admonition, warning, or reprimand, and ordering additional education. TEX. CONST.  art.  V,  § 1–a(8);  TEX. GOV’T  CODE  ANN.  § 33.001(a)(10).   There  are six ascending levels of sanctions, starting with a private admonition and ending with a public reprimand.   See TEX. CONST.  art.  V, § 1–a(8);  TEX. GOV’T CODE  ANN. § 33.001(a)(10).

Other than the private or public designation, only a public reprimand adversely affects a judge’s substantive rights. See TEX. GOV’T CODE ANN. § 74.055(c)(4)(A) (prohibiting a former or retired judge from sitting by assignment after public reprimand). In this case, the Commission issued Judge Oakley a public admonition, the lowest public sanction available, but higher than the three private sanctions.

Sanctions should be determined on a case-by-case basis. In re Canales, 113 S.W.3d 56, 73 (Tex. Rev. Trib. 2003, pet. denied). “The function of the Commission is not to punish; instead, its purpose is to maintain the honor and dignity of the judiciary and to uphold the administration of justice for the benefit of the citizens of Texas.” In re Lowery, 999 S.W.2d 639, 648 (Tex. Rev. Trib. 1998, pet. denied) (citing Thoma, 873 S.W.2d at 484–85).

In assessing the appropriate sanction, factors we should consider include “the seriousness of the transgression, whether there is a pattern of improper activity[,] and the effect of the improper activity on others or on the judicial system.” TEX. CODE JUD. CONDUCT, Canon 8A.

Previous courts have also considered:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;

(b) the nature, extent and frequency of occurrence of the acts of misconduct;

(c) whether the misconduct occurred in or out of the courtroom;

(d) whether the misconduct occurred in the judge’s official capacity or in his private life;

(e) whether the judge has acknowledged or recognized that the acts occurred;

(f) whether the judge has evidenced an effort to change or modify his conduct;

(g) the length of service on the bench;

(h) whether there have been prior complaints about this judge;

(i) the effect the misconduct has upon the integrity of and respect for the judiciary;

and (j) the extent to which the judge exploited his position to satisfy his personal desires.

In re Deming, 736 P.2d 639, 659 (Wash. 1987) (en banc); see also Sharp, 480 S.W.3d at 839 (referring to Deming factors); In re Rose, 144 S.W.3d 661, 733 (Tex. Rev. Trib. 2004, no appeal) (same).

There were several mitigating factors in this case:

(1) there was no evidence presented that Judge Oakley has engaged in this particular type of conduct before;

(2) the conduct occurred outside the courtroom;

(3) although he disputed whether it constituted a violation, Judge Oakley fully acknowledged his conduct; and

(4) there was no direct benefit to Judge Oakley or his family—he supported Wilcox because he believed she “would be a good person [for the position].” See TEX. CODE JUD. CONDUCT, Canon 8A; Sharp, 480 S.W.3d at 839.

On the other hand, there were several aggravating factors:

(1) Wilcox’s campaign materials were widely disseminated and publicly available on social media, resulting in seven separate complaints against Judge Oakley;

(2) Judge Oakley failed to consult any available resources before making his decision to publicly endorse Wilcox; and

(3) Judge Oakley was previously sanctioned by the Commission in 2018 for casting reasonable doubt on his capacity to act impartially in the performance of his duties in violation of Canon 4A(1). See TEX. CODE JUD. CONDUCT, Canon 8A; Sharp, 480 S.W.3d at 839; see generally TEX. CODE JUD. CONDUCT, Canon 4(A)(1).  As a result of that previous sanction, he was issued a Public Reprimand and Order of Additional Education.

Judge Oakley has not argued for a less severe sanction; he prayed only that “the finding of the commission be dismissed.” Nevertheless, after independently weighing these relevant factors and considering the purpose of issuing a sanction, we agree with the Commission that a public admonition strikes the appropriate balance in this case.

CONCLUSION

Judge Oakley willfully violated Canon 2B as alleged in Charge I by lending the prestige of his office to further the private interests of Wilcox. The appropriate sanction for his conduct is a public admonition.

GREGORY T. PERKES, Justice

Panel consists of Justices Perkes, Hassan, and Partida-Kipness. PUBLISH — TEX. RULES REM’L /RET. JUDG. R. 9(e)

 

Judgment and Public Admonition Issued October 25, 2019.

DOCKET NO. SCR 19-0002 SPECIAL COURT OF REVIEW

IN RE INQUIRY CONCERNING HONORABLE JAMES OAKLEY CJS NOS. 18-1214, 18-1227, 18-1283, 18-1329,

18-1331, 18-1344, and 18-1613 

JUDGMENT AND PUBLIC ADMONITION

The Special Court of Review has considered the pleadings, the evidence, and the arguments of counsel and finds that the Honorable James Oakley willfully violated Canon 2B of the Code of Judicial Conduct as alleged in Charge I by lending the prestige of his office to further the private interests of another person. The appropriate sanction for this conduct is a Public Admonition.

SPECIAL COURT OF REVIEW [1]

1 See TEX. GOV’T CODE ANN. § 33.034(c). This Special Court of Review consists of The Honorable Greg Perkes, Justice of the Thirteenth Court of Appeals at Corpus Christi-Edinburg, presiding by appointment; The Honorable Meagan Hassan, Justice of the Fourteenth Court of Appeals at Houston, participating by appointment; and The Honorable Robbie Partida-Kipness, Justice of the Fifth Court of Appeals at Dallas, participating by appointment.

Who is Justice Perkes?

A Corpus Christi attorney has been tapped by Gov. Greg Abbott to serve on the Thirteenth Court of Appeals.

Abbott announced in a news release that he had appointed Greg Perkes to the appellate court for a term that ends on Dec. 31, 2020. Perkes has previously served as a justice on the Thirteenth Court of Appeals — from 2011-16 — and is the owner of Corpus Christi-based Perkes Law Firm P.C.

Perkes would be filling the Place 6 seat vacated by Justice Dori Contreras, who was elected Chief Justice of the appellate court. His appointment to the Thirteenth Court of Appeals is subject to confirmation from the state Senate, according to the release.

Perkes also owns development firm Perkes Works, also based in Corpus Christi, which has been spearheading efforts to redevelop part of the downtown area into a project called SEATown. The idea is to convert land that will remain once the Harbor Bridge is demolished in 2021 into an area similar to San Antonio’s Riverwalk destination, complete with a canal.

Perkes on Monday said his appointment to the Thirteenth Court of Appeals will have no effect on his involvement with the SEATown initiative. He said the SEATown proposal was an investment project, and he still planned to advocate for it in the future.

The KKK Posting ‘Public Admonition’ (2018)

PUBLIC REPRIMAND AND

AMENDED ORDER OF ADDITIONAL EDUCATION

HONORABLE JAMES OAKLEY COUNTY JUDGE

BURNET, BURNET COUNTY, TEXAS

 

During its meeting on April 5-6, 2017, the State Commission on Judicial Conduct concluded a review of the allegations against the Honorable James Oakley, County Judge for Burnet County, Texas. Judge Oakley was advised by letter of the Commission’s concerns, provided a written response to same, and appeared before the Commission to refute the allegations against him. After considering the evidence before it, the Commission entered the following Findings and Conclusion:

FINDINGS OF FACT

At all times relevant hereto, the Honorable James Oakley was the County Judge for Burnet County, Texas.

On November 21, 2016, the San Antonio Police Department (“SAPD”) posted to its Facebook page a mugshot of Otis Tyrone McKane, an African-American man arrested and charged with capital murder in the killing of a San Antonio police officer, with the following statement:

“Today at 1545 hrs. Otis Tyrone McKane was taken in custody for the capital murder of SAPD Det. Benjamin Marconi. The arrest was made by SAPD in a joint effort with multiple law enforcement agencies. The arrest was made without incident. The San Antonio Police Department would like to thank everyone who assisted in locating the suspect.”

In response, Judge Oakley posted to the SAPD Facebook page the comment,

“Time for a tree and a rope … ”

His comment, along with the post, appeared on his own Facebook page (the “Facebook Post”).

The former editor of a local newspaper took a screen shot of the Facebook Post and disseminated it to the news media.

Judge Oakley removed the Facebook Post and issued a public apology, describing his comment as “harsh,” “off-the-cuff’ and “curt,” but denying it had anything to do with race.

Judge Oakley and the Facebook Post became the subject of local, national and international negative media attention.

To date, the Commission has received eighteen written complaints in response to the Facebook Post. These Complainants have expressed numerous concerns about the Facebook Post including, without limitation:

– the call for vigilante justice;

– the apparent disregard for due process of law;

– the influence the comment could have on the potential jury pool; and

– the racial insensitivity of the Facebook

Multiple Complainants also questioned Judge Oakley’s suitability for judicial office, and expressed doubts that he could perform his judicial duties impartially.

Asked by the Commission to explain the intent and context of the Facebook Post, Judge Oakley responded,

“My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty. In my mind the race/gender of the admitted cop killer was not relevant.”

Judge Oakley explained that a “tree and a rope” was a reference to the humorous advertising campaign for Pace Picante Sauce salsa from the 1980’s.

Judge Oakley does not believe his conduct cast discredit on the judiciary because the “media stories were promoted as a political attack,” and his words were twisted into “phrases [and] headlines that were not accurate.”

At his appearance before the Commission on April 5, 2017, Judge Oakley testified that while he handled uncontested probate and guardianship matters as a judicial officer, he had not attended the training offered by the Texas Association of Counties for new judges.

During the appearance, Judge Oakley made certain statements that indicated to the Commission that he could benefit from racial sensitivity training with a mentoring judge.

 

RELEVANT STANDARDS

l . Canon 4A(l) of the Texas Code of Judicial Conduct provides in relevant part that a judge “shall conduct all of the judge’s extracurricular activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

2. Article V, §1-a(6)A of the Texas Constitution provides, in relevant part, that a judge shall not engage in “willful or persistent conduct” that “casts public discredit upon the judiciary or administration of ”

CONCLUSION

The Commission concludes from the facts and evidence presented that by posting the Facebook Post, Judge Oakley cast reasonable doubt on his capacity to act impartially in the performance of his duties, in violation of Canon 4A(l), and engaged in willful conduct that cast public discredit on the judiciary and the administration of justice, in violation of Article V, §l-a(6)A of the Texas Constitution.

********************************

In condemnation of the conduct described above that violated Canon 4A(l) of the Texas Code of Judicial Conduct and Article V, §1-a(6)A of the Texas Constitution, it is the Commission’s decision to issue a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION to the Honorable James Oakley, County Judge, Burnet County, Texas .

Pursuant to this order, Judge Oakley, in addition to completing his annual required judicial education, must obtain a total of 30 hours of formal judicial training on or before July 31, 2018, as follows:

  • Eighteen hours of mentor education with mentors to be assigned by the Commission through the Texas Association of Counties (“TAC”);
  • Twelve additional hours of formal judicial education presented by TAC, at his

In addition, Judge Oakley must participate in four hours of instruction in the area of racial sensitivity with a mentor to be chosen by the Commission.

Upon completion of thirty total hours of formal judicial training and the four hours of mentoring, described above, Judge Oakley shall sign and return the Respondent Judge Survey indicating compliance with this Order. Failure to complete, or report the completion, of the required additional education in a timely manner may result in further Commission action.

Pursuant to the authority contained in Article V, §l-a(8) of the Texas Constitution, it is ordered that the actions described above be made the subject of a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION by the Commission.

The Commission has taken this action in a continuing effort to protect the public confidence in the judicial system and to assist the state’ s judiciary in its efforts to embody the principles and values set forth in the Texas Constitution and the Texas Code of Judicial Conduct.

Issued this 5th day of April, 2018.

Honorable Douglas S. Lang, Chair
State Commission on Judicial Conduct (SCJC)

Who is (former) Hon. D. Lang?

Douglas Lang was a judge on the Texas Fifth District Court of Appeals, representing Place 11. Governor Rick Perry (R) appointed Lang to this position in 2002. Lang left office on December 31, 2018. Lang was a 2018 candidate for the position of chief justice on the Texas Fifth District Court of Appeals.

His belief in these principles often translated into specific actions targeted at improving ethics and civility among members of the legal profession.

To name only a few examples, as Chair of the prestigious Bar-related Texas Center for Legal Ethics, Doug and his colleagues worked to instill a strong sense of ethics and civility in the everyday conduct of lawyers as well as in their representation of clients.

Then, as a former president of the Dallas Bar Association, Doug continued that bellwether work by playing a leading role in establishing the Dallas Bar Association’s Transition to Law Practice Program that provides mentoring opportunities for young lawyers.

Recently, Doug served as chair of the State Commission on Judicial Conduct. That commission is responsible for considering complaints regarding the conduct of judges.

In short, his career has been characterized by an unflagging devotion to Taking the High Road—a fundamental precept that Doug exemplifies on a daily basis.

The International law firm of Dorsey & Whitney LLP is pleased to announce that Douglas S. Lang, Of Counsel in the Dallas, Texas office, has been named a 2019 Texas Trailblazer by the Texas Lawyer magazine.

Doug is the author of “Deeds, Not Words—Mentors as Guiding Lights of Integrity in the Legal Profession,” a compilation of mentoring experiences recounted to him by a variety of judges, bar leaders, and successful attorneys.

Among the many law review articles Doug has authored, one, entitled “The Role of Law Professors: A Critical Force in Shaping Integrity and Professionalism,” stands out.

In that article, Doug advocates that law professors make special, concentrated efforts to instruct students about the necessity of civil and ethical conduct in the practice of law.

His goal in each of these writings was to reinforce the message he has conveyed throughout his career: Always act with dignity, civility, professionalism and respect for all with whom you deal.

Doug has been, and continues to be a frequent speaker at continuing education seminars around the country on substantive legal topics as well as on the topics of legal ethics and civility. He is a true Trailblazer.

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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