state commission on judicial conduct report

8/2/2019 State Commission on Judicial Conduct Report

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SunSet AdviSory

CommiSSion

StAff report

with heAring mAteriAl

State Com m ission on

Judicia l Con du ct

April 2012


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Su n set Ad v isory Com m iss ion

Repres enta t ive Denn is Bonn en

Chair

Senator Robert Nichols

Vice Chair

RepresentativeRafaelAnchia SenatorBrianBirdwell

RepresentativeByronCook SenatorJoanHuffman

RepresentativeHaroldV.Dutton,Jr. SenatorDanPatrick

RepresentativeFourPrice SenatorJohnWhitmire

AppointmentPending AppointmentPending

Ken Lev ine

Dir ector

Cover photo: The Texas Capitol is a marvel of craftsmanship down to the smallest details. The beautifully carved

wood door frames are emphasized with elaborate, custom-designed bronze hinges and hardware produced especially

for the building by Sargent and Co. of New Haven, Connecticut, in the late 1880s. The eight inch by eight inch hinges

are inscribed with the words Texas Capitol, decorated with incised designs of geometric and stylized oral motifs, and

weigh over seven pounds each.


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STATE COMMISSIONON

JUDICIAL CONDUCT

SUNSET STAFF REPORTWITH HEARING MATERIAL

APRIL 2012


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Tis document is intended to compile all recommendations and action taken by the Sunset AdvisoryCommission or an agency under Sunset review. Te ollowing explains how the document is expandedand reissued to include responses rom agency staf and the public.

l Sunset Staf Report, March 2012 Sunset staf develops a separate report on each individualagency, or on a group o related agencies. Each report contains both statutory and managementrecommendations developed ater the staf s extensive evaluation o the agency.

l Sunset Staf Report with Hearing Material, April 2012 Adds responses rom agency staf and the

public to Sunset staf recommendations, as well as new issues raised or consideration by the SunsetCommission at its public hearing.


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TABLEOF CONTENTS

PAGE

SUMMARY

.................................................................................................................................. 1

AGENCYATA GLANCE

.................................................................................................................................. 5

ISSUES/ RECOMMENDATIONS

1 Te exas Constitution Limits the Commissions Options to HearMajor Cases in Open Proceedings ............................................................................ 7

Responses to Issue 1 (page 10a)

2 Inconsistencies Between Its Statute and Rules Create the Potential orLitigation and Ineciencies in the Commissions Operation ................................... 11

Responses to Issue 2 (page 14a)

3 Lack o Access to Key Meetings and Records Limits Sunsets Ability

to Fully Assess the Commissions Oversight o Judges ............................................. 15 Responses to Issue 3 (page 20a)

NEW ISSUES

.................................................................................................................................. 21

APPENDICES

Appendix A Court Structure o exas ................................................................. 23

Appendix B Complaint Process ........................................................................... 25

Appendix C Complaints Filed/Disciplinary Actions by ype o Judge ............... 27

Appendix D Enorcement Process ....................................................................... 29

Appendix E Sanctions FY 2011 ........................................................................ 31

Appendix F Results o Sunset Survey o Complainants and Judges .................... 33

Appendix G Staf Review Activities .................................................................... 35


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SUMMARY


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State Commission on Judicial Conduct Staff Report with Hearing Material

Summary

Sunset Advisory Commission April 2012

SUMMARY

Th e Com m issions structureposes on goin g ob stacle s to

im plem enting chan ges to the

oversight of judg es in Texas.

In many ways, the State Commission on Judicial Conduct is unique. As

a judicial branch agency, the Commissions structure, enabling laws, rules,condentiality, and oversight difer considerably rom that o other stateagencies. Tese diferences impeded Sunsets ability to evaluate and makerecommendations to improve this agency, and pose ongoing obstaclesto implementing changes or reorms to exas approach to overseeing theconduct o judges.

A major impediment to change stems rom how the Commissions structureand operations are prescribed in great detail in the exas Constitution everything rom the make-up o the Commission to its investigatoryand disciplinary processes. Other constitutionally-created state agencies have broad authorization in the

constitution and rely on statute to provide more detaileddirection. Te Commissions detailed constitutionalprovisions make it challenging or the Legislature toenact statutory changes, as such laws must stay withinthe constitutions bounds or require voter approval toamend the constitution, not something easily done.

For example, a 2005 change to the Commissions composition and residencyrequirements necessitated a voter-approved constitutional amendment,

whereas the Legislature makes such changes through state law or most otheragencies. As Sunset oten recommends improving an agencys operations

through changes to state law, the constitutional constriction impacts Sunsetsability to efect changes to the Commission.

Another challenge involves the shared oversight o the Commission by theexas Supreme Court and the Legislature. Te Supreme Court promulgatesthe Code o Judicial Conduct the Commission enorces and the proceduralrules that guide the Commissions operations. Unlike rules an agency adopts,the procedural rules possess the same authority and efect as statute, asexplained in Issue 2. Because statute and procedural rules have the sameauthority, i the Legislature were to adopt a change in statute that difersrom the procedural rules, the change would bring into question whichtakes precedence. Te potential or conicts between the two leaves the

Commission open to legal challenges. Te arrangement between statute andthe procedural rules also limited Sunsets ability to recommend changes tostate law, or concern over creating urther conusion or the Commissionbetween directives rom the Legislature and Supreme Court.

Lastly, unlike most state agencies that must operate openly and transparently,the Commission operates largely behind closed doors to protect thecondentiality o the judges it oversees, most o whom are elected ocials.As a judicial branch agency, the Commission is not subject to the Open


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Summary2

April 2012 Sunset Advisory Commission

Meetings, Administrative Procedure, or Public Inormation acts. While Sunset recognizes the need toprotect judges rom public disclosure o unair or unwarranted complaints stemming rom individualsunhappy with the outcome o a case or rom political opponents, this must be balanced against thepublics right to know that the process is working airly and efectively when judges misuse or abuse thesubstantial authority they have been granted.

Te major diferences between the Commission and other state agencies its law largely xed inthe constitution, potential conicts between statute and the procedural rules, and the high level ocondentiality all worked to make this review especially challenging. Sunset staf concluded thatrecommendations to change the overall structure o this judicial branch agency exceeded the scopeo this review. Instead, Sunset staf ocused on assessing the Commissions primary unction theinvestigation o complaints against judges and the disciplining o judges guilty o judicial misconduct.

Unortunately, even this more limited approach also hit a major roadblock. Te Commission, based onits interpretation o condentiality requirements tied to the oversight o judges, reused to give Sunsetstaf ull access to its meetings and key documents used in its enorcement process. Tis decisionimpeded Sunset staf s ability to conduct a complete and thorough review, and thus, staf could notreach an overall conclusion regarding the eciency, efectiveness, or impartiality o the Commissionsoversight o judges.

As a judicial branch agency, any signicant changes to the Commissions structure, laws, canons, andrules would require action by the Legislature and Supreme Court and, most likely, voter approval tomodiy the constitution. In the meantime, the Commissions current structure makes the need or anobjective outside evaluation even more critical to overseeing the Commission. Sunset staf can conductsuch a review, i given ull access. Tis review would provide a check on the Commissions work,ensuring to the public the processs integrity while maintaining the necessary condentiality o judgessubject to disciplinary action.

Te ollowing material summarizes Sunset staf s recommendations regarding the State Commissionon Judicial Conduct.

Issues and Recommendations

Is su e 1

The Te xas Cons t i tut ion Limits the Com m issions Opt ion s to Hear Major Case s

in Open Proceedings .

Te Commission investigates complaints against judges and conducts either inormal or ormal

proceedings to decide whether or not to take action against a judge. Once the Commission institutesa ormal proceeding, it can only dismiss the complaint, issue a censure, or make a recommendation onremoval or retirement. Te Commission may not issue any o the lesser, more remedial sanctions it hasavailable ollowing an inormal proceeding.

Sunset staf ound the Commissions limited range o penalties available ollowing a ormal proceedingcould deter it rom pursuing cases o public import in open proceedings. Allowing the Commissionto issue any o its lesser sanctions in addition to a public censure or recommendation or removalor retirement would equip the Commission with all the necessary tools it needs and remove anydisincentive to taking a case to an open, ormal proceeding when warranted.


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Summary


Key Recommendations

lConstitutionally authorize the Commission to use its ull range o sanctions ollowing ormalproceedings.

l Statutorily authorize a Court o Review to hear appeals o sanctions ollowing ormal proceedings,in the same manner as it hears appeals o censures.

Is su e 2

Incon sis ten cies Betwe en It s Statute an d Rules Create the Potent ia l for Lit igat ion

an d Ine ff iciencies in th e Com m issions Oper at ion.

Te exas Constitution directs the Supreme Court to promulgate rules or proceedings beorethe Commission and beore an appellate body hearing an appeal o a Commission decision. Teconstitution also authorizes the Legislature to provide additional direction to the Commission on itsoperations in statute. Sunset ound the Commissions procedural rules being on an equal legal ooting

with state law creates the potential or conicts and legal challenges. Further, since the Supreme Courthas not updated the Commissions procedural rules in many years, the Commission now has severaldiscrepancies between its statute and its rules.

Requiring the Commission to study its procedural rules or needed updates and to report these ndingsto the Supreme Court would help to enable the Supreme Court to more regularly update the rules tostay current and prevent conicts that muddle the Commissions process and provide potential odderor legal challenges.

Key Recommendation

lRequire the Commission on Judicial Conduct to report to the Supreme Court as needed onsuggested changes to update its procedural rules.

Is su e 3

Lack of Access to Key Meet ings an d Records Limits Sun set s Abi li ty to Ful ly

Assess the Comm iss ions Overs ight of Judges .

Te Sunset Act requires state agencies to assist the Sunset Commission and authorizes Sunset stafto inspect the records, documents, and les o an agency. Te Sunset Act also protects an agencyscondential records by providing that Sunset staf must maintain the condentiality o any suchinormation obtained during the course o a review. However, the Commission would not allowSunset staf to attend its largely closed meetings to observe its enorcement process and barred staf

rom viewing the memoranda the Commissions legal counsel provides to Commission members orormulating rulings on cases. As a result, staf could not assess the Commissions primary duty.

Requiring the Commission to provide Sunset staf with access to observe its closed meetings andreview its condential records would ensure a complete and thorough evaluation o the Commissionsactivities. Sunset would continue to maintain condentiality o the inormation. In addition, reviewingthe Commission in six years, rather than the standard 12-year period, would allow the Commissiontime to implement changes recommended as a result o this review and enable Sunset to more ullyevaluate the Commissions disciplinary process.


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Summary4


Key Recommendations

l Require the Commission to provide Sunset staf with access to observe its closed meetings andreview its condential records to ensure a complete and thorough evaluation o the Commissionsactivities.

lReview the Commission in six years, rather than the standard 12-year period.

Fiscal Implication Summary

Tese recommendations should have no scal impact to the State, except or the States one-timepublication costs o $104,813 or placing a constitutional amendment on the ballot.


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AGENCYATA GLANCE

MARCH 2012


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Agency at a Glance


AGENCYATA GLANCE

Te State Commission on Judicial Conducts mission is to protect the public rom judicial misconductor incapacity by ensuring judges comply with standards o conduct established in the exas Constitutionand by the Supreme Court. Originally created in 1965, the Commission operates as a judicial branchagency, and the constitution spells out all o the Commissions key duties and responsibilities, as ollows.

l Investigating complaints against exas judges.

l Issuing private and public sanctions to judges ound to have committed judicial misconduct.

l Making recommendations or the removal orretirement o a judge based on misconduct orincapacity.

Te Supreme Court promulgates the Code o JudicialConduct that the Commission enorces, and theprocedural rules that guide the Commissions actions.

Te constitution also authorizes the Legislature topromulgate laws to urther the judicial oversightsystem established in the constitution.

Te Commission oversees over 3,900 judges and thetable, Texas Judiciary, details the type and numbero judges under the Commissions jurisdiction.Appendix A provides a ow chart detailing the

jurisdictions o the various courts in exas.

Key Facts

l Commission Members. Te 13-member Commission is a judicial body that hears and decidescases o judicial misconduct. Members serve staggered six-year terms and meet six times a year.

Te constitution sets out the requirements or appointment. Te Supreme Court appoints sixjudges, including one justice o a court o appeals, one district judge, one justice o the peace,one municipal court judge, one judge o a county court at law, and one judge o a constitutionalcounty court. In addition, the Governor appoints ve citizen members, and the State Bar o exasappoints two attorneys. All appointees must be conrmed by the Senate.

l Funding and Stang. Funded entirely rom General Revenue, the Commission operated on$996,626 in scal year 2011, with more than 80 percent covering staf. Te Commission employs14 ull-time staf an executive director, ve attorneys, three investigators, a legal assistant, a stafservices ocer, and three administrative assistants.

l Complaint Investigations. Te Commission relies on complaints rom the public, attorneys, andmembers o the judiciary to start an investigation o a judge or alleged misconduct. Many complaintsare dismissed as they relate to a judges rulings in a case, which is not within the jurisdiction o the

Texas Judiciary

Type of Judge

Number

in 2012Supreme Court Justice 9

Judge of the Court of Criminal Appeals 9

Appellate Court Justice 80

District Court Judge 456

Associate Judge 177

County Judge 254

Statutory County Judge 236

Statutory Probate Judge 18

Justice of the Peace 815

Municipal Judge 1,553

Retired/Senior Judge 303

Total 3,910


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Agency at a Glance6


Commission. In scal year 2011, the Commission received 1,119 complaints and dismissed 607complaints or ailing to allege misconduct. Appendix B illustrates the Commissions complaintprocess and Appendix C provides details on the complaints made and sanctions issued against eachtype o judge.

l Sanctions. I the Commission nds a violation, the Commission can issue an order o additional

education or a private or public sanction, reer a judge or drug or alcohol dependency counseling,or accept a judges resignation in lieu o discipline. In addition, the Commission can issue orders osuspension, pending either a criminal conviction or a Commission determination o a violation othe Code. Appendix D details the Commissions enorcement process.

In scal year 2011, the Commission issued 34 sanctions and three orders o suspension, and acceptedve resignations in lieu o sanction. Te Commission keeps private sanctions entirely condentialbut provides summaries o these cases on its website. For public sanctions, the Commissionpublishes the sanction and can make the entire record available upon request. Whether thesanction is private or public, the Commission always inorms the complainant o the action taken.Appendix E provides additional inormation on the sanctions issued in scal year 2011.

l Public Censure, Removal or Involuntary Retirement of a Judge. Ater a ormal hearing, theCommission can issue a public censure or recommend the removal or involuntary retirement oa judge to a seven-judge Review ribunal, comprised o appellate judges the Chie Justice o theSupreme Court chooses by lot. In scal year 2011, the Commission did not issue a public censureor recommend the removal or retirement o a judge.

l Appeals. A judge may appeal the decision o the Commission to issue an order o education, aprivate or public sanction, or a censure to a Court o Review comprised o three appellate judgeschosen by lot by the Chie Justice o the Supreme Court. Te decision o the Court o Review isnal. In scal year 2011, no cases were appealed to a Court o Review.

A judge may object to the Commissions recommendation or removal or involuntary retirementto the Review ribunal reviewing the Commissions recommendation. Te ribunal can reject theCommissions recommendation, order a public censure, or order the retirement or removal o a

judge. A judge can appeal the decision o the ribunal to the Supreme Court. Te decision o theSupreme Court is nal.

l Continuing Judicial Education. Te Commission works with judicial schools to provide judgeswith instruction on judicial ethics. Statute provides the continuing education requirements or eachtype o judge in exas. By law, the schools must report judges who ail to meet their continuingeducation requirements, and the Commission can issue sanctions to judges or ailure to comply

with the law. In scal year 2011, schools reported 18 judges or ailing to meeting their continuingeducation requirements.


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ISSUES


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Issue 1


ISSUE 1

Th e T exas Constitution Lim its the Com m issions Options to Hear

Ma jor Ca ses in Open Proceedin gs.

Background

Te State Commission on Judicial Conduct investigates complaints led against judges and conductseither inormal or ormal proceedings to decide whether or not to take action against a judge. Teconstitution and statute provide that inormal proceedings are closed to the public and ormalproceedings are open.

lClosed, Informal Proceedings. Most commonly, the Commission conducts closed, inormalproceedings. Based on the ndings o these inormal proceedings, the exas Constitutionauthorizes the Commission to issue private or public admonitions, warnings, reprimands, or ordersor additional training or education or judicial misconduct.1 Te Commissions procedural rules,promulgated by the exas Supreme Court, describe these punishments as sanctions and state thatthey are remedial in nature and meant to deter similar misconduct by a judge or judges in theuture.2

While most cases result in private sanctions, the Commission may also issue a public sanctionollowing a closed, inormal hearing. Tese include public admonitions and warnings or lesser

violations that warrant inorming the public about the violation and require putting the judiciaryon notice that the actions identied in the violation are improper. Te Commission can also issuepublic reprimands or more serious violations. A public reprimand has the additional consequenceo barring constitutional county, statutory county, district and appellate judges rom serving as

visiting judges when they retire rom the bench, a lucrative position. Te pie chart, CommissionSanctions, details the number and type o sanctions the Commission issued in scal year 2011.

Sanction Number Percent

Private Admonition 8 24%

Private Warning 3 9%

Private Reprimand 3 9%

Private Order for

Education

1 3%

Private Sanction

with an Order for

Education

12 35%

Sanction Number Percent

Public Admonition 3 9%

Public Warning 2 6%

Public Reprimand 1 3%

Public Order for

Education

0 0%

Public Sanction

with an Order for

Education

1 3%

Commission Sanctions FY 2011

Total: 34

Public 7

(21%)

Private 27

(79%)


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Issue 18


lOpen, Formal Proceedings. Te exas Constitution also authorizes the Commission to holdopen, ormal proceedings when a complaint alleges egregious misconduct. Based on the ndingso an open, ormal proceeding, the constitution authorizes three options: dismissal, public censure,or recommendation to a Review ribunal or the removal or retirement o a judge.3 Censure is theormal condemnation o a judges actions and is the strongest penalty that the Commission itselcan hand down. Te Commission considers censure to be punitive while sanctions are viewed tobe more remedial in nature. Over the last 10 years, the Commission has conducted 12 ormalproceedings and issued two censures. Te Commission has also made three recommendations orthe orced retirement o a judge, all o which were accepted by the Review ribunal.

lAppeals. Judges can appeal sanctions to a Court o Review, comprised o three appellate justiceschosen by lot by the Chie Justice o the Supreme Court to conduct a trial de novo. Judges can alsoappeal a censure to a Court o Review, which perorms a review o the record. Te judgment o theCourt o Review is nal.

A Commission recommendation or removal or retirement is automatically sent to a Reviewribunal, comprised o seven justices or judges o the courts o appeals chosen by lot by the Chie

Justice o the Supreme Court. Te Review ribunal can wholly adopt or reject the Commissionsrecommendation or order the censure o the judge. Judges can appeal the decision o the Reviewribunal to the Supreme Court. Te accompanying table,Appeals o Commission Decisions, shows acomparison o the diferent appeals processes.

Appeals of Commission Decisions

Type of

Proceeding

Commission

Action

Appellate

Body

Type of

Review

Further

Review?

Informal Private or Public

Sanction

Court of Review Trial de Novo No

Formal Public Censure Court of Review Review of the

Record

No

Formal Recommend

Removal or

Retirement

Review Tribunal, as

part of its review of

the Commissions

recommendation

Review of the

Record

Appeal to the

Supreme Court

under the substantial

evidence rule

Findings

The constitution and resulting case law unnecessarily limit the

Commissions punishment options.

A recent Court o Review decision ound that the Commission does nothave the authority to issue a public sanction ollowing a ormal proceeding.In 2010, the Commission, ollowing an open, ormal hearing, issued a public

warning to a judge or closing the Court o Criminal Appeals when a requestor a stay o execution was scheduled to arrive.4 On appeal to the Courto Review, the judge successully argued that, although the Commissionsprocedural rules allow or the Commission to issue a public warning ollowing


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Issue 1


a ormal proceeding, statute and the constitution do not allow the issuance oa warning ollowing a ormal proceeding.5, 6

Te Court o Review ruled that the rules o statutory construction requirea reading o the statute and constitution that sanctions can only be issuedollowing inormal proceedings, and that once the Commission institutes a

ormal proceeding, it can only dismiss the complaint, issue a censure, or makea recommendation on removal or retirement. Tus, the court overturned theCommissions public warning in this case and the judge received no sanction.

Tis decision means that, once it opts to hear a case in an open, publicproceeding, the Commission cannot issue any o the lesser, more remedialsanctions it has available ollowing an inormal proceeding.

The Commissions limited range of penalties available following

a formal proceeding could deter the Commission from pursuing

cases of public import in open proceedings.

An agencys range o sanctions should not be based on whether a proceedingis inormal or ormal, open or closed. Agencies should have a ull range osanctions available, and the available sanctions should not vary based on whattype o proceeding is selected. Formal proceedings are useul in that theyallow the Commission to conduct a ull evidentiary hearing when a case iseither complex and the acts warrant an extensive investigation, or to openlyhear cases that are important to the public.

Under the limits imposed by current case law, the Commission may choosenot to hear a case o clear public import in an open, ormal proceedingsince its options would be limited to a punitive sanction or dismissal, withno option or a more remedial sanction i warranted once the ull actso the case are in evidence. Tis reading o the law could seriously limitthe Commissions options i aced with a situation where a high-proleincident comes to its attention that may not warrant a ull public censureor removal. Te Commissions only two options would be to hold a closed,inormal proceeding to issue an appropriate sanction; or hold an open, ormalproceeding so that the public is able to see that action is being taken, butultimately have to dismiss the case i censure or removal is not warranted.

Te Commission has an interest in ensuring public condence in the judiciarythrough the holding o public hearings on cases o clear public import. TeCommissions mission statement includes promoting public condence in the

integrity, independence, competence, and impartiality o the judiciary. Tepublic cannot be condent in the integrity o the judiciary or the Commissioni high-prole cases are not addressed in a public orum.

Th e Com m ission

cannot issuean y of its lesser

sanctions

follow in g for m al

proceedin gs.

Confidence in the

integrity of the

ju dicia ry rest s

on h igh profile

cases being

heard openly.


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Issue 110


Recommendations

Constitutional Amendment

1.1 Authorize the Commission to use its full range of sanctions following formal

proceedings.

Tis recommendation would allow the Commission to issue a public admonition, warning, reprimand,or order o education ollowing a ormal proceeding, in addition to issuing a public censure orrecommending removal or retirement to the Review ribunal. o enact a change to the constitution,this recommendation would require the Legislature to pass a joint resolution containing this sanctionauthority and exas voters to approve an amendment to the State Constitution. I approved by voters,the Legislature should enact legislation to conorm statute to the constitutional changes.

Change in Statute

1.2 Authorize a Court of Review to hear appeals of sanctions following formal

proceedings, in the same manner as it hears appeals of censures.

Tis recommendation would allow the Court o Review to hear appeals o public sanctions issuedollowing a ormal hearing in the same manner as public censures. Under current law, the Court oReview hears the appeals o sanctions issued in inormal, closed proceedings by trial de novo. However,as sanctions issued ollowing a ormal proceeding will have a ull record and the judge will have beenaforded ull due process, there is no need or a trial de novo. Te Court o Review would conducta review o the record o the ormal proceeding and would allow new evidence only with good causeshown, as is currently done or censures. Te decision o the Court o Review would be nal and notappealable.

Fiscal Implication

Tese recommendations should have no scal impact to the State, except or the States one-time$104,813 publication cost or placing the constitutional amendment on the ballot.7

1 Section 1-a(8), Article V, exas Constitution.

2 State Commission on Judicial Conduct, Procedural Rules or the Removal or Retirement o Judges as promulgated by the exas SupremeCourt, Rule 1(e).

3 Section 1-a(8), Article V, exas Constitution.

4 State Commission on Judicial Conduct, Commission Order Inquiry Concerning Honorable Sharon Keller Judge No. 96, accessed January 24,2012, http://www.scjc.state.tx.us/pd/skeller/CommissionOrder.pd.

5 State Commission on Judicial Conduct, Procedural Rules or the Removal or Retirement o Judges as promulgated by the exas SupremeCourt, Rule 10(m).

6 State Commission on Judicial Conduct, Special Court o Review Final Opinion In Re Keller, accessed January 24, 2012, p. 31, http://www.scjc.state.tx.us/pd/skeller2/FinalOpinion.pd.

7 exas Secretary o State, Operating Budget or Fiscal Year 2012 (Austin, exas, December 2011, accessed January 23, 2012, p. 7, http://www.sos.state.tx.us/about/publications/operating-budget-y2012.pd.


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Issue 1


RESPONSESTO ISSUE 1

Recommendation 1.1A u thor iz e the Com m iss ion to u se its fu ll range of sa nct ion s follow in g for m al

proceedin gs.

Agency Response to 1.1

In general, the State Commission on Judicial Conduct supports a recommendation that wouldallow it to use its ull range o sanctions ollowing ormal proceedings. However, the agencyexpresses concern about the costs o additional ormal proceedings, both on the agency andon the respondent judge. (Seana Willing, Executive Director State Commission on JudicialConduct)

Staf Comment: Recommendation 1.1 does not specically require the Commission to holdmore ormal proceedings, but i it does, the Legislature has provided the Commission a separateund designated solely or the purpose o paying or ormal proceedings. In years past, theseunds have routinely exceeded the need and rolled over to uture years. I the Commissiondiscovers that its needs exceed this existing und, it may request additional unding throughthe appropriations process.

For 1.1

Earl Musick, President Harris County Criminal Lawyers Association, Houston

Against 1.1

None received.

Recommendation 1.2

A u thor iz e a Court of Review to h ear appeals of sa n ct ion s follow in g for m al

proceedin gs, in the sa m e m ann er as it h ears appea ls of censu res.


None received.

For 1.2Earl Musick, President Harris County Criminal Lawyers Association, Houston

Against 1.2

None received.


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Issue 11 0 b



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Issue 2


ISSUE 2

A ju dge ca n

challeng e a

Com m ission

sanction if rules

and statute

conflict.

In con sist en cies Betw een Its Sta tu te an d Ru les Cr eate th e Poten tia l for

Lit iga tion an d Inef f icien cies in th e Com m ission s Operation .

Background

Te exas Constitution directs the Supreme Court to promulgate rules or proceedings beore the StateCommission on Judicial Conduct and beore an appellate body hearing an appeal o a Commissiondecision.1 Te Supreme Court rst promulgated procedural rules or the Commission in 1967 andlast updated them in 1994.2 Te rules detail the Commissions processes or preliminary investigations,inormal proceedings, ormal proceedings, and appeals; as well as notice and ling deadlines, proceduraland evidentiary rules, and procedural rights o judges.

Te exas Constitution also authorizes the Legislature to provide additional direction to the Commissionon its operations in statute.3 Over the years, the Legislature has enacted numerous changes to theCommissions enabling statute, including changes to make the process more open to the public and toprovide a special court to hear judicial appeals o disciplinary actions issued by the Commission.

Findings

The Commissions unique structure places the Supreme Courts

procedural rules on an equal footing with state law, creating the

potential for conicts and legal challenges.

Most state agencies are authorized by statute to promulgate their own rules.

Te rules set orth the procedure that the agency will operate under and havethe orce and efect o law so long as the rules do not exceed the authorityprovided by statute. I a rule conicts with statute, then the rule is invalid andcannot be enorced.

However, the Supreme Court has held that procedural rules adopted bythe Court have the same orce and efect as statute.4 Additionally, theconstitution requires the Supreme Court to promulgate the Commissionsprocedural rules, but the constitution merely permits the Legislature to adoptstatute. Consequently, the Commissions rules are placed on equal ooting

with statute, as the constitution does not require that the rules conorm to

statute.Tis structure, unortunately, can result in conicts between state law and theCommissions procedural rules. Having procedural rules that conict withstatute creates the potential or litigation ollowing Commission action. Ithe procedural rules and statute were to directly conict, the Commission

would have to choose between ollowing statute and ollowing its proceduralrules. Whichever governing law it chooses to ollow, a judge could potentiallychallenge the action or not ollowing the process laid out in the other law.


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Issue 212


While such litigation has yet to occur, the Commissions unique structurecreates the possibility or uture conicts, as the Legislature continues toprovide additional statutory direction to the Commission each session.

As the Supreme Court has not updated the Commissions

procedural rules in many years, the Commission now hasseveral discrepancies between its statute and its rules.

Te Supreme Court last updated the Commissions procedural rules 18 yearsago in 1994. Since then, the Legislature has changed the Commissions statutenumerous times, making changes to almost every provision. Tese changeshave expanded the Commissions authority and provided additional rightsto judges, but the rules have not been updated to provide the Commissionprocedures or implementing the statutory changes. Te table, ConictsBetween State Law and the Commissions Procedural Rules, highlights some othese statutory changes.

Beyond these conicts, as an agencys operations evolve, agency rules mayoten need updating to allow the agency to operate more eciently. Forexample, the Commission has out-o-date or insucient rules that requiresending out certied notice when regular notice would do, do not provide clearprocedures or post-suspension hearings, and do not allow the Commissionto take actions that would allow judges to seek reconsideration instead oling a ormal appeal.

Other state agencies that the Supreme Court promulgates rules

for provide suggested rule updates to the Court as needed.

Te Supreme Court promulgates rules or the State Bar o exas and theexas Board o Law Examiners, much as they do or the Commission. Botho these agencies can and do inorm the Supreme Court when changes areneeded and provide suggested updates and revisions. Tis process ensures thatthe Court is timely made aware o needed changes and helps the Court byproviding the initial research on needed changes. However, the Commissiondoes not currently propose needed rule changes to the Court.

Conicts Between State Law and the Commissions Procedural Rules

Government

Code Rule Conict

33.024 5 Statute authorizes a judge of the Court of Review to

issue a subpoena, but rule does not.

33.034(e)(1) 9 Statute allows for an appeal of a censure, but rule does

not provide a process for such an appeal.

33.034(h) 9(c) Statute provides for a continuance, but rule does not.

33.034 17 Statute makes proceedings public when the Commission

les charges, but rule does not.

The Suprem e

Court last

updated the

Com m issions

procedural ru les

18 years ago.


23/5313


Issue 2


Recommendation

Change in Statute

2.1 Require the Commission on Judicial Conduct to report to the Supreme Court as

needed on suggested changes to update its procedural rules.

Tis recommendation would require the Commission to study its procedural rules or neededupdates to reect changes in case law, statute and the constitution, and to report these ndings tothe Supreme Court on an as-needed basis. Te Commission should also assess needed updates toimprove Commission operations or increase Commission eciency. While the statute should requirethe Commission to make its rst recommendations to the Court no later than December 31, 2013, theCommission should consider assessing and reporting on needed changes sooner than this date.

Fiscal Implication

Tis recommendation would have no scal impact to the State.

1 Section 1-a (11), Article V, exas Constitution.

2 Shuwerk and Hardwick, Handbook o Texas Lawyer and Judicial Ethics; Judicial Ethics Standards Recusal and Disqualication o Judges (West, 2010-2011), p. 12.

3 Section 1-a (14), Article V, exas Constitution.

4 In re City o Georgetown, 53 S.W.3d 328, 332 (ex. 2001).


24/53


Issue 214



25/531 4


Issue 2


RESPONSESTO ISSUE 2

Recommendation 2.1Requ ire the Com m iss ion on Judicia l Con du ct to repor t to the Su prem e Court as

needed on suggested changes to up date its procedura l rules.


Te State Commission on Judicial Conduct disagrees with this recommendation, stating thatthere is no need or a law that mandates the Commission to report this inormation to theSupreme Court. Te agency states it would be a waste o time and resources or the Legislatureto mandate what the Commission is already doing and is vitally interested in doing in theuture. (Seana Willing, Executive Director State Commission on Judicial Conduct)

Affected Agency Response to 2.1

Te Supreme Court o exas supports this recommendation and concurs that a comprehensivereview o the rules is needed. Te Court can then make appropriate rules changes to improvethe eciency, efectiveness and airness o the Commissions proceedings. Te Court statesthat it is not uncommon or other entities, such as the State Bar o exas and the Board o LawExaminers, or which the Court is responsible or promulgating rules, to make suggestions tomodiy their rules. (Chie Justice Wallace B. Jeferson and Justice Dale Wainwright, Liaison tothe State Commission on Judicial Conduct Te Supreme Court o exas)

For 2.1


Against 2.1

None received.


26/53


Issue 21 4 b



27/5315


Issue 3


ISSUE 3

La ck of A ccess to Key Meetin gs an d Records Lim its Su n sets A bility to

Fu lly A ssess th e Com m issions Oversigh t of Ju dg es.

Background

Te State Commission on Judicial Conduct, as a judicial branch agency set up in the Constitution, is notsubject to automatic abolishment under the Sunset Act. However, the Commission is subject to a ullSunset review every 12 years.1 Te Sunset process creates a unique opportunity or the Legislature toassess an agencys perormance and make undamental changes to its operations i needed. o conducta ull review, Sunset staf uses criteria established by the Legislature to evaluate key components o anagency, such as an agencys success in achieving its goals and objectives, and the agencys eciency andefectiveness in perorming its unctions.

Te primary purpose o the Commission on Judicial Conduct is to protect the public rom judicialmisconduct or incapacity. Tus, Sunset staf s review o the Commission ocused on evaluating theCommissions oversight o the judiciary. Tis involved evaluating how eciently and efectively theCommission protects the public rom judicial misconduct and whether the Commissions disciplinaryprocesses are clearly dened, open and responsive to public complaints, and airly and consistentlyapplied in practice.

o ensure the assistance o and access to state agencies under review, the Sunset Act requires stateagencies and ocers, upon request, to assist the Sunset Commission and authorizes Sunset staf toinspect the records, documents, and les o an agency.2 Te Sunset Act also protects an agencyscondential records by providing that, i the Sunset Commission receives a condential record in

connection with the perormance o its duties, the record remains condential and exempt rom publicdisclosure.3 In addition, the exas Attorney General has issued an opinion holding that Sunset workingpapers, including all documentary or other inormation, prepared or maintained by Sunset staf duringthe course o an agency review are condential and not subject to disclosure.4

Findings

The Commissions largely closed process makes it difcult

for the public to know if the Commission is appropriately

responding to citizen complaints against judges.

As a quasi-court, quasi-administrative judicial branch agency with authority

over judges, who are mostly elected ocials, the Commission operates understronger condentiality requirements than most other state agencies. Te

exas Constitution provides or the condentiality o all papers led withand proceedings beore the Commission, unless otherwise provided by law.State law provides two primary exemptions rom this condentiality thatall ormal proceedings be open and that the records o a case resulting in apublic sanction be made public. In addition, as a judicial branch agency, theCommission is not subject to the Open Meetings, Administrative Procedure,or Public Inormation acts.5, 6, 7

Th e Com m ission

operates

under stronger

confidentiality

requirem ents

than m ost other

state agen cies.


28/53


Issue 316


However, because ormal proceedings and public sanctions constitute asmall portion o the Commissions activities, very little o the Commissionsprocess is visible to the public. For example, in scal year 2011, only seveno the Commissions 34 disciplinary actions involved a public sanction. Tatsame year, the Commission met six times to hear cases o alleged judicialmisconduct, but held no meetings open to the public. In act, over the lastten years, the Commission has held a ormal proceeding, which is open tothe public, only 12 times. As the Open Meetings Act does not apply to theCommission, even these meetings, while open, do not have to be posted.

A survey of members of the public and judges that have

gone through the Commissions complaint process

indicates pronounced differences regarding the fairness and

effectiveness of the process.

Unable to observe the process directly, Sunset staf designed a survey to obtaininput rom individuals who have been a part o the judicial discipline process.

In October 2011, staf sent a survey to each o the 493 individuals who leda complaint against a judge that warranted an ocial investigation in scal

years 2008, 2009, and 2010. Staf also sent the same survey to the 382 judgesagainst whom the complaints were led i they were still in oce. Sunsetreceived 224 responses 115 rom complainants and 109 rom judges representing a response rate o about 26 percent. For additional inormationon the results o the survey, see Appendix F.

Te responses indicated a clear diference o opinion between complainantsand judges, with complainants expressing an overwhelmingly negative viewo the Commission and judges indicating nearly the exact opposite. For

example, a clear majority o complainants, 78 percent, rated the airness othe complaint process overall as unsatisactory. In contrast, only 14 percento judges rated the process airness as unsatisactory. While some diferencesare not unexpected, the sharp contrast in these participants view o theprocess raised concerns and would normally necessitate staf observing theprocess directly and reviewing relevant documents to make an independentevaluation.

The Commissions refusal to give Sunset staff full access to

its meetings and records prevents Sunset from performing a

thorough review of the agency and its disciplinary processes.

Based on its constitutional and statutory condentiality provisions, theCommission argues that its meetings are closed to everyone, including theSunset Commission and its staf. Te Commission interprets its authority ascivil in nature, not administrative. Commission members view themselves asexercising judicial authority in taking action to address judicial misconduct,not administrative actions as with executive branch licensing agencies thatoversee other proessions, such as doctors or accountants. Te Commission

In the last

10 y ears, the

Com m ission

ha s held only

12 m eetings

that w ere open

to the p ublic.

Seventy-

eight percent

of surveyed

com plainan ts

rated the fairness

of the com plaint

process as

unsatisfactory.


29/531


Issue 3


states that this level o condentiality is necessary to protect the condentialityo the judges involved and to preserve the integrity o the Commissionsinormal proceedings.

Consequently, the Commission would not allow Sunset staf to attend itsmeetings to observe its process and its interactions with judges, complainants,

and witnesses. In addition, by invoking attorney-client privilege, theCommission barred staf rom viewing the memoranda the Commissionslegal counsel provides to Commission members or ormulating rulings oncases. Tus, Sunset staf were denied access to a key document providinganalysis or the Commission and were unable to observe the Commissionsapproach to deciding when and i a complaint o judicial misconduct is valid and i so, what level o disciplinary action is appropriate. As a result, stafcould not assess the Commissions primary duty.

Sunset staf acknowledges that the Commission was very cooperative withother requests involving aspects o the Commission not deemed condential.

Staf had access to all members o the Commission and Commission staf.Te Commission provided les and recordings o portions o public andprivate sanction cases, though not Commission deliberations, ater redactingthe identities o complainants and judges. Te Commission staf also suppliedstatistical summaries o disciplinary data. In addition, the Commission

was open and responsive to several suggestions or material improvements.For example, during the course o the review, Commission staf worked toimplement several signicant changes to the Commissions website and Iprocesses.

However, without access to key components o the Commissions disciplinaryprocesses, staf could not make a determination o their eciency, efectiveness,or airness. By preventing a ull review, the Commission on Judicial Conductseriously limits the ability o the Sunset Commission and the Legislature toassess the oversight o judges in exas, as required by law.

Despite the Commissions place in the judicial branch o state government,the condentiality o these meetings and records are no diferent than thoseo other state agencies. I given access, Sunset staf would have maintainedthe same level o condentiality that statute requires o the staf o theCommission on Judicial Conduct and would have been subject to the samepenalties or disclosure.

For more than 30 years, Sunset staff has routinely accessedcondential meetings and documents as part of its job

reviewing state agencies, and has consistently maintained the

condentiality of this information, as required by law.

Sunset has a long history o accessing sensitive condential inormation. Inreviewing agencies such as the Medical Board, various health and humanservice agencies, the Railroad Commission, the Division o WorkersCompensation, and the State Bar, to name a ew, Sunset has had access

Withou t a ccessto m eetings,

Sunset staff could

not observe the

Com m issions

interactions

with judges and

com plainan ts.

Sun set staff could

not assess the

Com m issions

efficiency,

effectiveness, or

fairn ess due to

lack of access.


30/53


Issue 318


to very sensitive inormation, such as detailed disciplinary case les andcondential health records. Te purpose o observing such inormation isto gather a complete picture to assess how an agency perorms its unctions.Sunset uses this inormation to help shape its recommendations to theLegislature, but does not reveal or include in its reports any inormationdeemed condential.

The inability of Sunset staff to conduct a complete review of

the Commission this cycle makes it inadvisable to wait a full 12

years before the agencys next Sunset review.

Te Sunset Commission is a key component o the legislative check on aprocess whose oversight o judges takes place largely within the connes othe judicial branch and largely behind closed doors. While the constitutionand state law appear to support the need or condentiality to saeguard the

judiciary, the Legislature also clearly intended that this lack o transparencybe counter-balanced by allowing the Legislature, through the Sunset

process, to periodically conduct an outside and objective evaluation o theCommission and its oversight o judges.

Assuming the Legislature enacts changes to address Sunsets ability toconduct a more thorough review o the Commission in the uture, thelimited access provided this cycle would indicate a need to review theCommission within a shorter timerame than the standard 12-year cyclecurrently provided or in law.

The Commissions one reporting requirement serves a useful

purpose and should be maintained.

In 2011, the Legislature directed Sunset to evaluate the reporting requirementstied to each agency under review and to recommend to the Legislature

whether to keep or discontinue each requirement.8 Te Commission onJudicial Conduct has only one reporting requirement to annually report tothe Governor and the Legislature on statistical inormation and examples oimproper judicial conduct and changes the Commission considers necessaryin its rules, law, or the constitution. Statute also requires distribution o thereport to the Texas Bar Journal, to periodically publish inormation on whatconstitutes misconduct and sanctions resulting rom misconduct.9

Required since 1983, the Commission uses the report to explain its

narrow, and rather nuanced, authority and jurisdiction, a requent sourceo misunderstanding. Te Commission elaborates on what constitutes

judicial misconduct, its disciplinary process, and sanctions taken in theprior year. Since 2001, the Commission has posted each annual report onits website, making the reports easily accessible to the public. In addition,publicizing this inormation through the Bar Journalreminds judges o theCommissions role, helping to deter similar behavior by other judges. At lessthan $280 in expenditures or printing, the report presents no undue cost tothe Commission and appears to serve a useul purpose.

Periodic review

by Sun set helps to

coun ter balancethe Com m issions

lack of

transparency.

Th e Com m issions

annual report

helps p ub liciz e

its sanctions.


31/5319


Issue 3


Recommendations

Change in Statute

3.1 Require the Commission to provide Sunset staff with access to observe its closed

meetings and review its condential records to ensure a complete and thorough

evaluation of the Commissions activities.Clariy in the Commissions statute that its condentiality and privilege provisions do not bar theCommission rom being subject to a ull Sunset review. Clariy in statute that Sunset staf mustmaintain the same level o condentiality as the staf o the Commission and, as a result, is entitledto access whatever components o the Commissions process Sunset deems necessary. Tis statutorychange should make clear that the sharing o condential agency documents prepared by Commissionstaf attorneys to aid the Commission in reaching a decision does not constitute a violation o attorney-client privilege.

3.2 Review the Commission in six years, rather than the standard 12 year period.

While not subject to abolishment, the Commissions statute requires a Sunset review every 12 years.Tis recommendation would make a one-time change to provide or the next review to occur insix years, 2019. Tis shorter Sunset date would allow the Commission time to implement changesrecommended as a result o this review and enable Sunset to more ully evaluate the Commissionsdisciplinary process with the broader authority envisioned above. Ater 2019, the Commission wouldrevert back to a periodic Sunset review every 12th year.

3.3 Maintain in law the requirement for the Commission to distribute an annual report

on its activities to protect the public from judicial misconduct.

Tis recommendation would simply maintain the requirement in the Commissions statute to annuallyreport on its activities and sanctions. o comply with a recent change in law, the report and notice that

the report is available should be provided to the Legislature in an electronic ormat only.10

Fiscal Implication

Tese recommendations would not have a scal impact to the State.

1 Section 33.003, exas Government Code.



4 Op. ex. Atty Gen. No. OR2011-01970.

5 Section 551.001(3), exas Government Code.

6 Section 2001.003(7), exas Government Code.


8 Sections 325.0075, 325.011 (13), and 325.012 (a)(4), exas Government Code.


10 S.B. 1618, 82nd Legislature, Regular Session, 2011.


32/53


Issue 320



33/532 0


Issue 3


RESPONSESTO ISSUE 3

Recommendation 3.1Requ ire th e Com m iss ion to p rov ide Su n se t st af f w ith access to obse rve its close d

m eeting s and rev iew its confidential records to ensure a com plete an d thorou gh

eva lu ation of the Com m ission s activities.


Te State Commission on Judicial Conduct rejects this recommendation, stating that the typeo inormation the staf o the Sunset Advisory Commission seeks and the purpose or whichthey intend to use it is an improper intrusion into the thoughts, deliberations, and decision-making process o the Commission while perorming its adjudicatory unction. (Seana Willing,

Executive Director State Commission on Judicial Conduct)

For 3.1


David Sibley, Attorney At Law Gregory

Against 3.1

None received.

Recommendation 3.2

Review the Com m iss ion in six years, ra th er th an th e stan dard 12 year period.


None received.

For 3.2


Against 3.2

None received.


34/53


Issue 32 0 b


Recommendation 3.3

Ma in ta in in law the requ irem en t for th e Com m ission to d ist ribu te an an n ual

report on its activities to protect th e p ub lic from jud icial m iscond uct.


None received.

For 3.3


Against 3.3

None received.


35/53

NEW ISSUES


36/532


New Issues


NEW ISSUES

Te ollowing issues were raised in addition to the issues in the staf report. Tese issues are numbered

sequentially to ollow the stafs recommendations. Several o these new issues could require aconstitutional amendment to enact, as many o the details o the Commissions duties are prescribed inthe exas Constitution.

4. Dissolve the State Commission on Judicial Conduct, and authorize the Governor, Lt. Governor,and State Attorney General to assemble a task orce to hold accountable government agenciesthat the legislature has no direct governing power over. ( Joshua Panneck, Coppell)

5. Disband the current Commission and create a new commission responsible or investigatingjudicial misconduct, with the authority in extreme cases to review the decisions o judgesor abuse. Te new agency should be stafed by non-judges with term limits. (David Sibley,

Attorney At Law Gregory)

6. Give the State Commission on Judicial Conduct more authority in law to remove unethicaljudges. ( Joshua Lussier, La Marque)

7. Authorize the State Commission on Judicial Conduct to review and overrule a judicial decisionwhile maintaining appellate courts as the nal arbiters o law. (David Sibley, Attorney At Law Gregory)

8. Provide a process by which individuals whose complaints about judicial misconduct have beendismissed by the State Commission on Judicial Conduct can receive an impartial review o therejection o their complaints. (David Sibley, Attorney At Law Gregory)

9. Amend statute and the Procedural Rules or the Removal or Retirement o Judges to allow acomplainant to present oral testimony and to rebut a judges response to a complaint i a ullinvestigation is warranted, and to be represented by counsel at an inormal hearing beorethe Commission. (Earl Musick, President Harris County Criminal Lawyers Association,Houston)

Staf Comment: Te procedural rules are promulgated by the exas Supreme Court, so or theSunset Commission to act on the part o this recommendation related to the rules, it wouldhave to make a request o the Supreme Court to consider such a change.

10. Amend statute to require the Commission to notiy a complainant about its ull investigation

and the date and time o the inormal hearing, and to give the complainant an opportunity totestiy beore the Commission. (Earl Musick, President Harris County Criminal LawyersAssociation, Houston)

11. Amend statute to clariy that grounds or removal, censure, or discipline o a judge include ajudges willul violation o a provision o the exas penal statutes, Code o Criminal Procedure,the Code o Judicial Conduct, or other law. (Earl Musick, President Harris County CriminalLawyers Association, Houston)


37/53


New Issues22


12. Require all State Commission on Judicial Conduct disciplinary actions be reported to theOce o the Chie Disciplinary Counsel o the State Bar o exas and regularly reported in the

exas Bar Journal. (Earl Musick, President Harris County Criminal Lawyers Association,Houston)


38/53

APPENDICES


39/5323


Appendix A


APPENDIX A

Court Structure of Texas

Statewide Jurisdiction Statewide Jurisdiction

Supreme Court

1 Court 9 Justices

Court of Criminal Appeals

1 Court 9 Judges

Regional Jurisdiction

Court of Appeals

14 Courts 80 Justices

359 Districts Within One County and 97 Districts

Containing More than One County

Statewide Jurisdiction

District Courts

456 Courts 456 Judges

Constitutional County Courts (254)

One Court in Each County

County-Level Courts


Statutory Probate Courts (18)

Established in 10 Counties

Statutory County Courts (236)

Established in 88 Counties

Established in Precincts Within Each County

Justice Courts


Municipal Courts

926 Cities 1,553 Judges

p

Civil Appeals Criminal Appeals

Appealsof

Death

Sentences

State Highest

Appellate Courts

State Intermediate

Appellate Courts

State Trial Courts of

General and

Special Jurisdiction

County Trial Courts

of Limited

Jurisdiction

Local Trial Courts

of Limited

Jurisdiction

p

p

p

p p

w

w

w

w

w

p

Source: Oce o Court Administration, Court Structures o Texas, accessed January 17, 2012, http://www.courts.state.tx.us/oca/pd/Court_Structure_Chart.pd.


40/53


Appendix A24



41/5325


Appendix B


APPENDIX B

Complaint Process

Case led

p

p

p

Case screened

No jurisdiction No allegationJurisdiction and

allegation

Case not

opened

Administrative

Dismissal Docket

Investigation

Investigator

Dismissal Docket

Dismissal

DocketAgenda

Docket

Commission Action

p p

pp

p

p p p

p

p


42/53


Appendix B26



43/532


Appendix C


APPENDIX C

Complaints Filed by Type of Judge

FY 2011

Associate56 (5%)

District492 (44%)

Appellate36 (3%)

Constitutional County33 (3%)

County Court at Law/Probate 99(9%)

Justice of the Peace218 (19%)

Municipal98 (9%)

Senior/Retired87 (8%)

Total Complaints:1,119

Disciplinary Actions by Type of Judge

FY 2011

Constitutional County*4 (10%)

Senior/Retired1 (2%)

County Court at Law/Probate1 (2%)

Municipal*10 (24%)

District3 (7%)

Justice of the Peace*23 (55%)

Total Disciplinary Actions: 42

*Justices of the peace, municipal judges, and constitutional county judges are not required to be attorneys. Non attorney

judges make up 44% of Texas judiciary, and in fiscal year 2011 half of all judges sanctioned were non attorney judges.


44/53


Appendix C28



45/53


46/53


Appendix D30



47/533


Appendix E


APPENDIX E

Sanctions FY 2011

Type of Sanction Explanation Number

Order of Additional When a judge shows a lack of knowledge in a particular area of the law, 1

Education or needs help maintaining proper judicial temperament, the Commission

will order additional legal training or mentoring. Education may be

public or private and can be combined with other sanctions.

Private Admonition Used for minor infractions committed by less experienced judges where 8

the Commission has determined that the public can be adequately

protected without public disclosure of the misconduct. This sanction is

often combined with an order of additional education for judges who

failed to meet their continuing education requirements.

Private Warning More serious than an admonition, this sanction is used for less 3

serious infractions, especially when a judge has enough experience to

have known that the conduct is prohibited, and the Commission has

determined that the public can be adequately protected without public

disclosure of the misconduct.

Private Reprimand More serious than a warning, this sanction is used for infractions where 3

the Commission has determined that the public can be adequately

protected without public disclosure of the misconduct, but a strong

message needs to be sent to the judge that the conduct is prohibited.

Order of Additional An order of education can be combined with a private sanction. 12

Education with

Private Sanction

Public Admonition Used for lesser violations that warrant letting the public know about the 3

infraction. This places the judge and other judges on notice that the

conduct is prohibited.

Public Warning More serious than an admonition, this sanction is used for more serious 2

violations that warrant letting the public know about the infraction,

while placing the judge and other judges on notice that the conduct is

prohibited.

Public Reprimand More serious than a warning, this sanction is reserved for more 1

egregious violations that warrant letting the public know about the

infraction, while placing the judge and other judges on notice that the

conduct is prohibited. This sanction has the additional consequence ofbarring certain judges from serving as visiting judges when they retire

from the bench or lose an election.

Order of Additional An order of education can be combined with a public sanction when 1

Education with the Commission determines that the public should be aware of the

Public Sanction additional training requirements imposed on the judge.

Total 34


48/53


49/5333


Appendix F


APPENDIX F

Results of Sunset Survey of Complainants and Judges

As part o this review, Sunset staf designed a survey to obtain input rom judges and complainants who havebeen through the Commissions complaint process. In October 2011, Sunset staf sent this survey to 875individuals who had been through the complaint process during the last three scal years, 493 complainantsand 382 judges. Sunset staf received 115 responses rom complainants and 109 responses rom judges.

Survey 115 Complainants 109 Judges

Please rate how well SCJC makes information about its 8.3% excellent 20% excellent

functions easily accessible to the public: 35.7% satisfactory 68% satisfactory

56% unsatisfactory 12% unsatisfactory

Please rate how well SCJC makes information about its 9.2% excellent 26.2% excellent

functions easy to understand: 40.3% satisfactory 57.3% satisfactory

50.5% unsatisfactory 16.5% unsatisfactory

Does the Commissions complaint process make it easy 42.7% said yes 94.7% said yes

for members of the public to le a complaint? 57.3% said no 5.3% said no

Please rate the content and ease of use of the 7.2% excellent 20% excellent

Commissions website: 53% satisfactory 70.6% satisfactory


Please rate the fairness of the Commissions complaint 3.6% excellent 29.7% excellent

process overall: 18.2% satisfactory 56.4% satisfactory78.2% unsatisfactory 13.9% unsatisfactory

Please rate the thoroughness of a Commission complaint 2.8% excellent 38.1% excellent

investigation: 19.6% satisfactory 51.6% satisfactory


Please rate the timeliness of the Commissions handling 2.7% excellent 10% excellent

of complaints: 20% satisfactory 67% satisfactory

77.3% unsatisfactory 23% unsatisfactory

Please rate how well the Commission keeps 4.6% excellent 18.9% excellent

complainants and respondents informed of their case 23% satisfactory 65.3% satisfactorystatus: 72.4% unsatisfactory 15.8% unsatisfactory

Please rate how well the Commission protects the 26.3% excellent 40.4% excellent

condentiality of judges and people who le complaints: 39% satisfactory 12.1% satisfactory


Are there any situations where condentiality 62% said yes 7.8% said yes

requirements hinder the Commission from carrying out its 38% said no 92.2% said nofunctions?


50/53


Appendix F34


Appendix F

Results of Sunset Survey of Complaintans and Judges

Survey 115 Complainants 109 Judges

Please rate how well the Commissions sanctions address 2.8% excellent 29.5% excellent

judges misconduct: 11.1% satisfactory 60% satisfactory86.1% unsatisfactory 10.5% unsatisfactory

Does the Commission appropriately publicize actions 13.1% said yes 91.3% said yes

taken against judges? 86.9% said no 8.7% said no


51/53


52/53


Appendix G36



53/53

Sunset Staff Review of the

State Com m ission on Ju dicial Condu ct

Erick Fajardo, Project Mana ger

Steven Ogle

Dawn Roberson

Ginny McKay, Supervisor

Ken LevineDir ector

Report Prepared By

Sunset Advisory Commission

Location MailRobert E. Johnson Bldg., 6th Floor PO Box 13066

1501 North Congress Avenue Austin, TX 78711Austin, TX 78701

Website Emailwww.sunset.state.tx.us [email protected]

state commission on judicial conduct report

Documents