LIT COMMENTARY
Dec. 8, 2019
Laws In Texas wrote about the sanctions of these judges earlier this year. You can read the article here. Now we have this breaking news that the sanctions of 11 judges have been completely removed from the public facing website at scjc.texas.gov and without comment. This is illegal when none (zero) of these eleven sacntioned judges appealed their discipline. Interestingly on Dec. 3, 2019, LIT released an article about one of the eleven, Judge McSpadden, titled;
11 Houston Judges Were Sanctioned. What Happened Next is a Mystery
Eleven Houston-area judges were sanctioned in August for their bail bond practices, but the Texas Commission on Judicial Conduct has deleted their public admonitions from its website. The judges’ lawyer said the sanctions were withdrawn, and the matter is concluded. But judicial ethics experts say that would be unprecedented.
Dec. 6, 2019
The Texas Commission on Judicial Conduct has deleted from its website public sanctions it issued against 11 Houston-area current and past judges for their bail bond practices.
Houston attorney Nicole DeBorde Hochglaube, who represents the 11 jurists, said that shortly after the commission sent out the public admonitions in a news release Aug. 29, commission interim executive director Jackie Habersham called her to say the commission was withdrawing the sanctions.
‘They took it back’
The withdrawal is just becoming public because it’s been hidden by the agency’s strict confidentiality requirements.
“No information about it should be public, because theoretically, there is no longer this public admonition. They took it back,” said Hochglaube, partner in Hochglaube & DeBorde in Houston. ”It didn’t even happen, from a legal standpoint.”
Hochglaube said the commission’s confidentiality requirements bind her from divulging much information about the cases. The same secrecy provisions also prevented Texas Lawyer from confirming the withdrawal of the sanctions.
“Due to the agency’s strict confidentiality rules, I’m not able to comment at this time on the issue,” said an email by Habersham.
It’s unprecedented for the commission to issue public sanctions and then delete them with no explanation, according to two Texas judicial conduct experts.
“A public admonition that’s actually published—I haven’t heard of that—and then withdrawn. This doesn’t compute for me,” said Chuck Herring, partner in Herring & Panzer in Austin, who authors an annual book on lawyer ethics with a chapter devoted to judicial ethics.
Austin solo practitioner Lillian Hardwick, who practices judicial ethics law, also said it’s unprecedented.
“I’ve never seen them do that before,” Hardwick said.
In the past, sanctions disappeared from the commission’s website when a judge appealed a sanction, which results in a superseding ruling from a special court of review, she noted.
But none of these judges have appealed, according to Texas Supreme Court Deputy Chief Clerk Claudia Jenks, who wrote in an email that none of the 11 judges have appealed their sanctions.
Hardwick added that she’s seen situations where the commission issued a sanction but later reviewed it again and issued an amended sanction. In one of these cases, a judge’s original and amended sanction both still appear on the commission’s site. In another situation, only the judge’s amended sanction appeared; the original may have been private, Hardwick guessed.
Misconception?
The judges’ attorney told Texas Lawyer she is not expecting to see amended sanctions here.
“I can tell you: I believe the matter to be concluded,” Hochglaube said. “In my opinion, this has created a difficult situation for us, because of how this happened.”
Hardwick said that procedurally, if the commission wanted to withdraw the 11 judges’ sanctions, it could re-review the allegations against them and then determine the matters should be administratively dismissed, rather than issuing amended sanctions. With any administrative dismissal, the person who originally filed the complaint receives a dismissal notice, and has one chance to seek a review of the decision, she added.
The 11 Houston judges’ original public admonitions, which were nearly identical, said that the judges gave instructions to Harris County criminal law hearing officers to deny all personal recognizance bonds, because the judges wanted to determine bond for defendants in their own courts.
Even after the county’s bail practices changed in 2017, many of the sanctioned judges told hearing officers to keep following a bond schedule, said the admonitions.
Among other things, the commission found that the judges failed to comply with the law and maintain competence in the law because these bond practices violated hearing officers’ legal authority to make decisions on bond.
Hochglaube previously told Texas Lawyer that the public admonitions contained misconceptions about what Texas law says about district judges and felony bail bond practices.
It’s incorrect that these judges violated the law, she said, adding that she thinks the commission is not a court designed to answer such questions of law.
She also said that magistrates in Harris County specifically asked for judges’ guidance for bonding situations, and the guidance was provided in a memorandum by the courts’ administrative office and legal department.
Judge Michael McSpadden
Judge Herb Richie
Judge George Powell
Judicial Commission Sanctions 11 Houston District Judges Over Bail Bond Practices
“They’ve essentially said these judges somehow violated the law. That is wholly, 100% incorrect,” said the judges’ lawyer, Nicole DeBorde.
Aug. 30, 2019
-Judge Susan Brown, formerly of the 185th District Court, issued instructions to deny all PR bond requests from Nov. 20, 2009 to 2013, the commission found.
In her responses, Brown said she changed those orders in 2013 and again in 2016, when she told hearing officers to grant PR bonds for defendants only in cases when the charge involved possession of a controlled substance of less than one gram and as long as the defendant had no prior convictions and was not homeless. ( Brown last year was appointed presiding judge of the Eleventh Judicial Region of Texas.)
-Judge Denise Collins, formerly of the 208th District Court: The commission found Collins violated laws and judicial cannons by instructing hearing officers to deny all PR bonds beginning in 2009 until Oct. 14, 2014, when she allowed the hearing officers to issue those no-cost bonds only for “non-violent state jail and third degree felonies with no prior felony convictions.”
Four current and seven former district judges in Houston plan to appeal sanctions by the Texas Commission on Judicial Conduct that claimed their bail bond practices failed to comply with Texas law and cast public discredit on the judiciary.
Harris County’s justice system has been in hot water for years over bail bond practices that lead to lengthy incarcerations of indigent defendants. The county lost a major lawsuit that alleged constitutional violations in its misdemeanor courts and recently entered a settlement to reform its bail bond practices.
The 11 nearly identical public admonitions explained that Texas law created criminal law hearing officers in Harris County who determine probable cause, conduct magistrations, handle warrants and more. The law says the hearing officers must give defendants time to consult with lawyers and must grant bail within 24 hours of arrest, if it’s allowed by the law.
The public admonitions noted that Texas law gives magistrates the authority and discretion to release a defendant on personal bond. The court where a case is pending is the only one that’s supposed to set the amount of bail and decide if a defendant should get a personal bond. The law requires a judge to make that decision based on a host of factors, such as the nature of an offense, the safety of a victim and the community and the ability of a defendant to pay bail.
However, the sanctioned district judges gave instructions to the criminal law hearing officers to deny all personal recognizance bonds.
Responding to the judicial commission, the judges all said they wanted to determine bond for defendants in their own courts.
In March 2017, Harris County district judges modified their standard bail practices so that personal bonds would follow the law, and low-risk defendants would be favored for personal bonds. Even after the county’s bail practices changed, many of the sanctioned judges told hearing officers to keep following a bond schedule, though amounts were often lowered, depending on the circumstances of cases, said the admonitions.
The commission found that the judges failed to comply with the law and maintain competence in the law when they told hearing officers not to issue personal release bonds on the cases in their courts, and when they told the hearing officers to strictly follow a bail schedule that violated the hearing officers’ authority under Texas law. The judges’ instructions counted as willful and persistent conduct, which wasn’t consistent with their duties as judges, and it cast public discredit on the judiciary, the public admonitions said.
“It’s certainly being made to look, based on what the commission printed on the website, that the district court judges gave some kind of order to the magistrates. That is not correct,” said DeBorde, a partner at Hochglaube & DeBorde in Houston. ”What happened is the magistrates actually asked for guidance on how to handle a variety of bonding situations.”
She said the county’s judicial administrative office and legal department, on behalf of all of the district judges at the time, crafted responses to the magistrate judges’ questions. She questioned why these 11 judges were sanctioned and not others.
Since the sanctions came out, the commission has deleted them from its website. DeBorde said they were withdrawn and the matter is concluded.
Read an example of the nearly identical public admonitions.
Public Admonitions
182nd District Judge Jeannine Barr
174th District Judge Hazel Jones
351st District Judge George Powell
337th District Judge Herb Ritchie
Former 185th District Judge Susan Brown, who now serves as presiding judge of the 11th Administrative Judicial Region
Former 248th District Judge Katherine Cabaniss
Former 208th District Judge Denise Collins
Former 351st District Judge Mark Ellis
Former 180th District Judge Catherine Evans
Former 209th District Judge Michael McSpadden
Former 263rd District Judge Jim Wallace
–Judge Mark Ellis, formerly of the 351st District Court: The commission found that Ellis had issued instructions to deny all defendants’ so-called PR bonds from Nov. 20, 2009 to Dec. 16, 2016.
–Judge Catherine Evans, formerly of the 180th District Court: The commission found Evans issued instructions to hearing officers to deny all personal recognizance bond requests from Oct. 14, 2014 to February 2017.
–Judge Jim Wallace, former 263rd District Court Judge, issued standing orders to deny PR bonds between November 2009 and Feb. 1, 2017.
-Judge Jeannine Barr, formerly of the 182nd District Court, told the commission she “wanted to determine” herself whether to grant a PR bond rather than allow hearing officers to do so for each defendant assigned to her court, according to a disciplinary order.
-Judge Katherine Cabaniss, formerly of the 248th District Court: told the commission that she considered that she as an elected judge had the legal authority to “personally determine” whether a PR bond was appropriate for each defendant, even though hearing officers are designated to initially review defendants’ cases in Harris County.
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Brent Liedtke
December 28, 2019 at 12:41 pm
Judge George Powell was sanctioned by the Judicial Conduct Commission for not only not knowing the law, but also, for violating the law. The Judge told other duly appointed judges NOT to follow the law and do the job they were assigned to do. That was illegal. So he started breaking the law as soon as he took the job. He cared less about his oath and the law. Now he seeks re-election! To no one’s surprise, he violated election law. He did not know what the filing fee was,and he paid the wrong amount. He is now blaming an UNNAMED election official for his own ignorance. So, all in all, the Judge is seeking a job he is too stupid to apply for. But, Judge Powell claims he has a good reputation for assuring justice is done.
Commission Judges charged with monitoring judicial ethics who reviewed Powell’s violation of PR bond law in Harris County do not agree. They found he broke the law on bail, and the victims of that crime were poor detainees. Worse yet, while these law violations and ethical violations were occurring, Judge Powell started yet another Go Fund Me page to cover campaign expenses. What campaign expenses? The only expense would be his lawyer’s fee for filing a lawsuit to cover the Judge’s failing to even get on the ballot? And if he is not on the ballot how can he be running a political campaign? Who does he report these donations to when received? How can he meet campaign reporting requirements when there is no campaign? What campaign costs are being paid if there is no campaign? What has he done with the money collected so far? When he set up the Go Fund Me page did Judge Powell notify his donors that he was too stupid to get on the ballot? Can a candidate, even a Judge, collect donations before he is even on the ballot? Is it fraud to gather campaign donations from people who were not told there is no campaign? Is Judge Powell simply breaking the law again, per his habit? I have had the occasion to see Judge Powell presiding in the 351st District Court. He is as incompetent while on the bench as he appears to be here.
I am not a lawyer, and I have not appeared in front of Judge Powell. But I have been present while lawyers who had just appeared before Judge Powell in a case on his docket pledged they would do whatever they could to make sure he was never elected again. On his many social media sites I have yet to see anyone claim he has a good reputation for justice and fairness. There is one candidate on the ballot in the Democratic Primary. She did not have to ask someone what the filing fee was. She found out herself and paid it. She has never been found to have broken the law or done anything unethical. She can be seen and heard by simply making a Google search for Judge Powell.
She is qualified. She got on the ballot by herself. She did not have to hire a lawyer to try to undo anyone’s ignorance, like the Judge had to do recently. She actually has a campaign. She did not set up a Go Fund Me page. Most importantly, she has been a dedicated public lawyer, helping people, trying to fix the system Judge Powell treats as his own toy. Rather than being sanctioned by Judges whose job is to monitor other judges’ ethics, like George, she was accepted by the Ninth Circuit Court of Appeals as a law clerk, a prestigious position only the best of the best are offered. She has dedicated her career to treating the law with honor and respect. Judge Powell is not even curious what the law says, even when it is the foundation of the very career his Go Fund Me page is intended.