Texas Judges May Wear Black Robes But They Cloak Darker Secrets

In 2008, a Texas judge found an out-of-town attorney in contempt of court. But, the judge added, there was a way the lawyer could avoid jail: He could donate “large sums of money” to several charitable organizations, one of which the judge happened to have a close connection to.

Want to know more about the judge and his charity? You can’t. It’s confidential.

Nor can you find out any more details about the judge who, in 2003, “while traveling on a state highway at nighttime with his family, chased, stopped, and arrested another motorist based on his perception that the motorist had committed a traffic offense. … During the incident, the judge displayed a handgun for which he did not have a license to possess,” according to available public records.

Both judges had their cases heard by the state’s Commission on Judicial Conduct, the agency charged with disciplining Texas’ approximately 3,900 judges, from justices of the peace to state Supreme Court justices. Yet strict rules written into the state’s constitution severely limit how much of the agency’s proceedings and records are open to public scrutiny.

While some judges may receive a relatively harsh public sanction, with details of their cases made available for public consumption, most of the reprimands meted out by the commission in a given year, including those given to the judge with the charities and the judge with the illegal gun, are kept private, with only the rough outlines of the case made public. No identifying information about the judge or his or her jurisdiction is released, and the penalty has no real impact beyond a notation in the commission’s records and the judge’s conscience.

The commission says the protections are necessary to shield judges from spurious and political attacks and to protect complainants from judicial retribution. Defense lawyers, those who have filed complaints and even some judges counter that such secrecy raises questions about how the agency is policing some of the state’s most powerful public officials.

An American-Statesman review of a decade’s worth of publicly available disciplinary records — several hundred case summaries — suggests that in some instances there is at least the appearance of uneven sanctions — cases in which judges found to have committed relatively minor infractions were punished more severely than those who committed more serious violations — or differing punishments for similar violations.

“They’re very arbitrary and capricious; they just do what they want to do,” said Henry Ackels, who represented Texas Supreme Court Justice Nathan Hecht in 2006. Hecht was accused of using his office to promote Harriet Miers’ U.S. Supreme Court candidacy. The commission voted to publicly admonish Hecht, but the punishment was later thrown out when he appealed.

The agency’s secrecy has even frustrated state auditors.

The Sunset Advisory Commission is charged by the Legislature to review the performance of state agencies to determine if taxpayers should continue funding an agency and, if so, what changes might be made to improve its efficiency. But when sunset auditors examined the judicial conduct commission earlier this year, they essentially threw up their hands after the commission refused to turn over records of its deliberations or permit sunset employees to sit in on hearings, which the agency said were closed to all but judicial conduct commissioners and staff.

“Staff could not assess the commission’s primary duty,” the audit agency concluded. “By preventing a full review, the Commission on Judicial Conduct seriously limits the ability of the Sunset Commission and the Legislature to assess the oversight of judges in Texas, as required by law.”

The commission said the agency did not have the authority to review its decisions because it is a judicial body whose rulings are not subject to legislative oversight. Many legal proceedings — grand jury hearings, for example — are also conducted behind closed doors.

It was the second time the commission’s inner workings have provoked public frustration recently. In July 2010, the agency issued a public warning to Presiding Judge of the Court of Criminal Appeals Sharon Keller for not keeping her court clerk’s office open past business hours on Sept. 25, 2007, to accept a last-minute death sentence appeal.

But three months later, a special court of review threw out the commission’s decision, ruling it had ignored its own rules by giving Keller too light a penalty. Because of the error, the case against her was dismissed.“So much for the public’s confidence in the integrity of the judicial system,” Jim Harrington of the Texas Civil Rights Project, who had filed a complaint against Keller, said at the time. “It says that judges protect their own.”

Few judges disciplined

The Texas Commission on Judicial Conduct receives about 1,200 complaints filed against judges each year. The vast majority are dismissed in private commission meetings either as unfounded, lacking evidence or unrelated to the agency’s charge to oversee the behavior — not the bench rulings — of the state’s 3,900 jurists. Typically, about 6 percent result in any kind of discipline.

With four attorneys and three investigators among its 14 employees, the commission’s staff is small compared to its counterparts in some other, similar-size states. The New York State Commission on Judicial Conduct, which oversees about the same number of judges as Texas, has 49 employees, including 18 staff attorneys and nine investigators. California’s commission has 16 attorneys.

Executive Director Seana Willing said that despite her small staff, every complaint is thoroughly investigated. But Tom Cunningham, a Houston attorney who is the commission’s current chairman, said, “There isn’t any question but that we need more staff.”

“They need help to adequately investigate cases,” added Tom Lawrence, a Harris County justice of the peace who served on the commission from 1992 to 1998, and again in 2006 and 2007. “There have been times they’ve been worried even about the travel budget. If you can’t even go out to speak to the parties involved, it’s difficult to conduct a thorough investigation.”

The Texas commission also is comparatively reactive. Although it has the power to bring complaints against judges itself, the commission almost never does; last year, it filed four. New York’s commission initiated 55 complaints in 2011.

Texas’ unpaid commissioners — six judges, five citizens appointed by the governor and two lawyers appointed by the State Bar of Texas — also work hard. While New York’s commission employs a referee to hear cases against judges, Texas commissioners listen to and decide on every case. Current and former commissioners describe the work as grueling.

“We met three days a week every other month, and on that third day you’re pretty exhausted,” said R.C. Allen III, a Corpus Christi businessman who served a six-year term that ended in 2005. By the end, “I was not thinking as clearly and rationally on weeks we had tough stuff.”

When it considers a case, the commission can invite the accused judge or witnesses to come to Austin to testify, or not. The fact that the commission has many trappings of a judicial body, but is not bound by courtroom rules of procedure, has frustrated participants.

“I know from personal experience that the commission considers secret evidence that a judge does not even know about until after a public sanction is issued,” said Rick Davis, a former Brazoria County district judge who launched thetexasinquisition.com (the site is no longer live) after he was publicly sanctioned in 2002 for his part in a public spat with local prosecutors. “Due process requires that a judge be told about the evidence being considered against him before or at the very least during a hearing so that he can have the opportunity to rebut it and prove that evidence is not true.”

While only the state Supreme Court can remove a sitting judge, the commission can suspend judges in limited circumstances, such as when a judge has been criminally charged. It has suspended 17 judges since 2008, including three last year.

After the daughter of Aransas County Court-at-Law Judge William Adams posted an online video of him hitting her with a belt, the commission had to ask the Supreme Court to suspend Adams with pay until a complaint against him was resolved.

In even rarer instances, the commission can order formal, public proceedings when a judge has been accused of especially egregious misconduct. That occurs an average of about once a year, most recently in 2010, when Keller’s case was heard publicly.

Most commonly, however, commissioners decide in private sessions to dismiss a complaint or punish the judge with one of a half-dozen lesser penalties. The more severe sanctions are issued publicly, with the judge’s name and details of the cases described on the commission’s website and often reported in the media. In addition to embarrassment, the most severe public sanctions — a reprimand or censure — carry a financial penalty: Once out of office, the judge is barred from working as a visiting judge, a source of income for many jurists.

High frustration

Most judicial sanctions, however, are kept confidential. Of the 190 sanctions the commission has issued in the past four years, nearly two-thirds remain under wraps. Last year, it issued seven public sanctions — and 27 private reprimands.

Judges also may resign rather than face disciplinary action; 18 have done so since 2008. Although the commission releases their names, details of their cases remain private.

Because the hearings themselves are secret, why one judge is reprimanded more lightly or severely than another isn’t always clear, although certain behavior — repeat offenses, for example — seem to contribute to stiffer discipline. The commission is charged with maintaining the public’s confidence in judges, so prior media attention to an incident also is noted. Lawrence said a judge’s demeanor and apparent contrition are important considerations.

Supporters say the strong privacy protections are necessary to shield judges from malicious or retaliatory complaints. “You’d be surprised how many people blame the judge for their predicament,” said Gilbert Martinez, an Austin businessman whose commission term ended in 2005.

Judges make easy targets for politically motivated complaints, as well. “A judge can be a sitting duck for criticism,” said Robert Tembeckjian, administrator of New York’s Commission on Judicial Conduct. Texas is one of only 13 states in the country to hold partisan judicial elections, which can be particularly contentious.

Yet detractors say the secrecy is troubling. “There’s a fraud on the good citizens of this state,” said Robert Fickman, a Houston defense attorney. “They’re told that they’re being protected from abusive judges, but that’s not occurring.”

Unlike many other state-regulated professions, the commission’s online disciplinary reports allow no obvious way for the public to learn if a particular judge has been disciplined, a shortcoming critics say thwarts voters who want to research judicial candidates.

“I represent lawyers, doctors, teachers (before other occupational boards), and it’s all public,” said Earl Musick, president of the Harris County Criminal Lawyers Association, which has argued for more transparency in the judicial discipline process. “But with the judicial conduct commission, the process is too protected. The public has no faith in the system anymore.”

A survey of judges and complainants administered by the sunset agency last year hinted at frustration. When asked about the commission’s effectiveness and transparency, about 80 percent of the judges polled said the process worked well. By comparison, 8 of 10 complainants surveyed expressed dissatisfaction with the body’s workings and decisions.

In some instances, the secrecy is not just an abstraction. After the commission issued a public warning to Keller, the judge appealed. But when her attorney, Chip Babcock, asked for a record of which commissioners had voted for and against the sanction in the private hearing, he was told no such record existed — only commissioners’ attendance was noted.

“I don’t know of any government body that can ruin the reputation of an elected public servant and do it without even having a record of how they voted and who voted,” he said. “Secret government is a dangerous thing.”

Cunningham said he would support more open proceedings against accused judges, although, he added, that would require the commission’s rules to be rewritten. He also cautions that a more public process resembling a formal trial would be expensive.

Even so, added Martinez, the former commissioner, “It would be nice if they could come up with a balance between protecting the judges and the public’s right to know.”

Uneven punishment

The judicial commission’s secrecy rules prevent direct comparisons between disciplinary cases to see if measures taken against judges for similar offenses are equivalent — a gap noted by sunset officials at a contentious legislative hearing Tuesday. And speaking of the cases, “Regardless of how it may appear on paper, no two are ever the same,” said Lawrence, the former commissioner, so decisions are bound to vary.

Not everyone agrees. “There should be an agency we’re responsible to,” said George Boyett, a Brazos County justice of the peace who has been disciplined by the commission three times. “But I don’t feel they’re consistent in what they do.”

A review of available case information can leave that impression. In 2010, Bexar County Court-at-Law Judge Monica Guerrero was publicly admonished for “accepting a valuable gift from a person whose interests did, and were likely to come before her court, when she attended San Antonio Spurs basketball games as the guest of an attorney/bail bondsman who practiced before her court,” the commission ruled.

Five years earlier, however, an unnamed district judge received a private admonition after accepting “free use of a limousine on two occasions from parties or persons whose interests frequently came before him,” according to commission records. Several other judges received similar private sanctions for entering into business relationships with attorneys who appeared in front of them, commission records show.

Judges have received seemingly disparate sanctions for trying to improperly use their office, as well. In 2004, the commission publicly admonished Jim Wells County Justice of the Peace Alonzo Villarreal for calling a neighboring municipal court judge to ask him to consider deferred adjudication for a citizen charged with a traffic violation.

Yet in 2000, another justice of the peace received only a private admonition for a similar-sounding infraction: “Judge A wrote a letter on official court stationery to Judge B asking Judge B to allow Judge A’s son to take a driving safety course in lieu of fine.” In 2008, when a municipal judge ordered his own nephew released from jail, rescinding a bond set by another magistrate, he received only a private warning.

That same year, District Court Judge Hal Miner of Potter County earned a public rebuke when he reportedly slapped a female attorney’s buttocks at a Christmas party — even though the woman herself said she wasn’t offended. But the commission kept private a 2003 case against a county judge who “made inappropriate comments toward a county employee who worked under his direct supervision causing that employee to file a sexual harassment claim against the judge,” records show.

Judges attempting to use their title to influence law enforcement also have fared differently in front of the commission. Webb County Justice of the Peace Hector Liendo was publicly admonished in 2008 after he was pulled over on suspicion of driving while intoxicated and “repeatedly referred to his official position in an effort to dissuade the officer from arresting him.”

Three years earlier, an unnamed justice of the peace was privately ordered to take additional education classes after he responded to being issued a verbal warning by school district police officers during a traffic stop by later writing a letter “threatening to hold the school district police department in contempt of court.”

Former and current commissioners said there are often spirited disagreements among commissioners over deciding the correct sanction.

“There was a judge that should’ve been put in the electric chair, and he only had his hand slapped,” recalled former Commissioner Allen. “He was just a horrible man.”

Martinez said that taken as a whole, the body generally makes sound decisions. But not always. The private penalty given to the justice of the peace who pulled the unlicensed gun on a citizen “really stuck in my craw.”

“The commission voted it down (for a public sanction), and I was just flabbergasted,” he said.

Cunningham, the commission’s chairman, said the appearance of uneven punishment “is a matter of legitimate concern.”

“I think we try hard” to be consistent, he said. “But I’d be the first to admit it’s a hard thing to do.”