The Texas Judiciary is in a Terrible State and Texas Gov. Greg Abbott Likes it That Way

Complaints against Texas judges are piling up – and so are complaints against the agency tasked with handling them

Originally Published: 4 October, 2019 ; update by LIT; 22 Dec., 2019

For over a decade, the Texas State Commission on Judicial Conduct has refused to cooperate with the state in a routine process for assessing the effectiveness of state agencies.

Lawmakers passed a bill earlier this year requiring the agency to be more transparent, but Gov. Greg Abbott vetoed the measure, insisting that the commission could choose to be more transparent if it wanted to be.

The agency was created in the 1960s to enforce rules against judicial misconduct.

Now the backlog of complaints about the conduct of Texas judges is exploding, driven in part by a population boom, which has led to the creation of new courts and election of new, inexperienced judges to fill those benches.

Some individuals say those complaints are falling into a bureaucratic dead zone.

Records show that the number of pending cases jumped almost 75 percent between 2016 and 2018, from 477 to 827.

“A year ago, we filed a complaint on a judge, and if we hadn’t taken a screenshot of that complaint when we filed it, there would have been no way to know that it had ever been filed,”

Emily Gerrick, a staff attorney for the Texas Fair Defense Project, told the House Committee on Judiciary and Civil Jurisprudence during a March hearing on the bill.

The bill would have required the agency to update complainants on the status of their complaints at least once a quarter. It also would have required the agency to report annually on the number of unresolved complaints more than a year old.

“The caseload has grown to 300 cases a meeting, I am told,” said El Paso lawyer Steve Fischer, referring to the number of complaints that the commission is expected to rule on.

Fischer is a new appointee to the 13-member commission, one of two members appointed by the state bar association. Six other members are appointed by the state Supreme Court and five by the governor.

Fischer, who will attend his first board meeting in December, said he’s already hearing from lawyers eager to air their gripes about judges.

“I have started these Facebook pages, lawyers only, and we have 20,000 lawyers in the groups, which is a fifth of all the attorneys in the state,” Fischer said.

Among the messages he sees, he said, are beefs about judges.

“I could not believe this avalanche of messages,” he said.

Fischer said that opening up the process would help the public understand it better and would benefit the accused in cases of spurious complaints.

“The commission should not be a private meeting and many of the complaints should be fully public,” he said. The governor’s veto, Fischer added, has not helped in gaining the public’s faith that its judges are acting appropriately.

The commission is not subject to the state’s open meetings and public records laws. Its website does not provide meeting dates.

The vetoed bill had been a victory of sorts for Sen. Judith Zaffirini, D-Laredo, who has for years crusaded for more transparency by the commission.

A similar bill in 2017 failed to get out of committee, but a successful 2015 measure required the commission to report the types of misconduct that resulted in penalties.

In an email, Zaffirini said the vetoed bill was “a first step to implement simple changes that would increase transparency and SCJC’s responsiveness to complainants and judges. SCJC could implement the provisions in this bill independently, but they have consistently declined to do so, much to my dismay.”

The measure had merit, said Bob Bennett, a Houston attorney who represents attorneys and judges who face complaints.

“The system is not working as it should,” Bennett said. He has no gripes with the length of time to complete a case. But the lack of responsiveness of the commission is troubling, he said.

“I’ve filed a complaint about a judge and never heard anything,” Bennett said. “It’s a blank wall; it’s nonresponsive. So anything that would make this commission more accountable and transparent is a positive.”

Jacqueline Habersham, interim executive director of the commission, did not respond to an interview request.

The veto, Bennett said, “is strange, given the support for that bill.” Abbott did not respond to an email seeking comment.

Go here for a list of Gov. Abbott’s vetoes this year.

AUTHOR’S / SPONSOR’S STATEMENT OF INTENT

The State Commission on Judicial Conduct (SCJC) closely protects the confidentiality of complaints. This not only makes the extent of fairness and efficiency in SCJC’s disciplinary process difficult to determine by the public, but also causes frustration for the complainants participating in this process.

What’s more, currently the main instrument for the legislature to examine the extent of fairness and efficiency in SCJC’s disciplinary process is through the Sunset review process, which happens only once every decade.

A result of Texas Judicial Council recommendations, S.B. 467 would require SCJC to include in its annual report to the legislature the number of complaints on which SCJC has not issued a decision for more than a year since filing, as well as those referred to law enforcement and deferred pending a criminal investigation;

-notify a complainant of a change in a complaint’s status within the investigative process unless notice would jeopardize an undercover investigation;

-provide online access to an index of pending complaint investigations, searchable by complaint number, that includes the date the complaint is received by SCJC and the status of the investigation or review;

-publish the guidelines it uses to ensure that a sanction is proportional to the misconduct;

-and promulgate deadlines by which SCJC has to take action on a complaint, with exceptions for extenuating circumstances.

These changes would enhance SCJC’s transparency, efficiency, and consistency and increase not only the public’s, but also the judiciary’s trust in SCJC’s work and determinations.

(Original Author’s/Sponsor’s Statement of Intent) S.B. 467 amends current law relating to the procedures of the State Commission on Judicial Conduct.

Robert S. Bennett
Attorney
405 Main Street
Suite 310
Houston, TX 77002
Phone: 713-225-6000
Fax: 713-225-6001

Throughout Bob Bennett’s lengthy career, he has amassed an impressive resume encompassing a variety of areas of legal practice. He served as a legislative assistant for Congressman Patrick Caffery; he interned in the Harris County District Attorney’s Office and served three years with the United States Attorney’s Office in San Antonio, Texas; he spent two years as a litigator for the Interstate Commerce Commission (ICC) and three years working for United States Attorney John Clark; he served as general counsel for Coca-Cola Bottling Company in Guatemala; and as a private practitioner, he has represented clients throughout Texas and many parts of the United States in a variety of civil and criminal matters. For the last decade, he has focused his practice on defending professionals of various types in disciplinary proceedings including barratry. His clients include lawyers, judges, doctors, professional students and other professionals.

Attorney disciplinary issues
Medical disciplinary issues
Professional disciplinary issues
Law license denials
Medical license denials
White collar crime

Admitted

Texas, 1974

Education

J.D., University of Houston Law Center, 1974
Order of Barristers
Moot Court Team
M.A., George Washington University, 1975
Honors Program
B.A., George Washington University, 1971
Dean’s List

Honors

AV® Preeminent™ Peer Review Rated by Martindale-Hubbell®

Community involvement

Member, International Board of Directors, Amigos de las Americas,
President, University of Houston Law Center Alumni Association
Coach, little league baseball and youth hockey
Competitor, USA Masters Swimming competition
Competitor, Senior Olympics Swimming

Seminars

How Not to Lose Your Bar Card: New Barratry Laws, Law Week, 2012
Legal Issues with Social Media, AMA Speaker Series, 2010
How to Ethically and Without Committing a Grievance: Market Your Law Practice on the Internet, Houston Intellectual Property Law Association, 2009
Marketing Law Firms, Harris County Municipal Justice Bar Association, 2009
Changes in Legal Marketing and Ethics, Houston Mexican American Bar, 2007
Changes in the Texas Grievance System, Denton County Bar, 2007
Ethical Issues — Corporate Counsel Liability, Corporate Counsel Institute, 2007
Understanding the Role of the TSBME Discipline Process and How to Avoid It, Texas Medical Association, 2004
Further Ethical Considerations for Attorneys Taking and Defending Depositions, 2003
Deposition Tips and Practical Considerations, 2003
Legislative Changes in the Texas Grievance Process, 2003

Articles

Legal Talk — A Case Study Before the Texas State Board of Medical Examiners: What We Can Learn from What Happened?, DocTalk, 2004
First the Accountants, Then the Executives, Next the Lawyers — Criminal Exposure for Dealings with Enron, 2002
Mandatory Arbitration Hits Home, Texas Lawyer, 2002
BOLE Doesn’t Appreciate Haste or a Bad Memory, Texas Lawyer, 2002
A Debate Over How Lawyers Have to Operate, Texas Lawyer, 2000
Just What Is Barratry, Anyway?, Texas Lawyer, 1999
DA, Bar Counsel Spar Over Dropped Barratry Charters, Texas Lawyer, 1998
The Small Firm and Strategic Alliances, Houston Lawyer, 1996