WHAT EVERY JUDGE SHOULD KNOW ABOUT COMPLAINTS TO THE COMMISSION FOR JUDICIAL CONDUCT (OFFICIAL ACTION OR NOT )

The State Commission on Judicial Conduct is governed by Article 5 Sec. 1-a of the Texas Constitution, Chapter 33 of the Texas Government Code, and the Procedural Rules for the Removal or Retirement of Judges. As part of the judiciary and as an entity having its own constitutional and statutory provisions regarding the confidentiality of papers, records and proceedings, the Commission is not governed by the Texas Public Information Act, the Open Meetings Act, or the Texas Administrative Procedures Act.

The State Commission is the agency for investigating complaints of judicial misconduct and the disciplining of judges. It has jurisdiction over all judges in Texas: justices of the peace, municipal judges, magistrates, county courts at law judges, statutory probate judges, district judges, appellate judges, retired and former judges, associate judges and masters and Title IV-D masters. The Commission does not have authority over administrative hearing offices for state agencies of the State Office of Administrative Hearings, private mediators or arbitrators, or federal magistrates and judges.

In FY 2001, 1123 cases were filed. Of these, 831 were dismissed. There were 80 disciplinary actions total. Out of these 80 actions, there were 4 orders of suspension and 12 instances of formal proceedings. 3 judges resigned with investigations pending. Additionally, there were no judges removed or public censures issued. In FY 2000, there were 4 instances where formal proceedings were voted, no judges were removed, and there were 3 public censures issued. The two years prior to that, FY 1998 and 1999, there 15 were judges removed by order of the Review Tribunal.

The Commission, established by the Texas Constitution, is made up of eleven (11) members, who serve six-year staggered terms. The members include 5 judges appointed by the Supreme court of Texas, with the advice and consent of the Senate, (one judge from each court level: appellate, district, count court at law, justice of the peace, and municipal); as well as two attorneys (who are not judges, who have each practiced as members of the State Bar for over ten consecutive years) appointed by the State Bar, and four citizen members (over the age of 30, who are neither lawyers nor judges, nor hold any salaried public office or employment), who are appointed by the governor. While the justice of the peace, the municipal judge and the county court as law judge may be selected at large, no other member may reside in or hold a judgeship in the same Supreme Judicial District as another member of the Commission. The Commissioners receive no compensation; and the operating expenses of the Commission are paid by the Legislature. A quorum consists of six (6) members and proceedings are by majority vote of those present, except that recommendations for retirement, censure, suspension, or removal of any judge requires an affirmative vote of at least six (6) members.

The misconduct investigated could be a violation of the Texas Constitution, Texas Penal Code, Texas Code of Judicial Conduct or other rules promulgated by the Supreme Court of Texas. The misconduct can occur either “on the bench” or consist of out-of-court conduct. Examples include inappropriate or demeaning courtroom conduct, such as yelling, profanity, gender bias, or racial slurs, improper ex parte communications in a case, public comment on a pending case, failure to disqualify, thefts, sexual harassment, official oppression or driving while intoxicated.

Initial complaints and investigations are held confidential by the Commission. However, because of their public position, complaints against judges have been known to be “leaked” to the media by individuals outside of the Commission.

During the informal investigation of a complaint against a judge, the investigation usually includes an inquiry letter from the Commission to the judge, as well as interviews with witnesses and the complainant, and an informal hearing.

The Commission then makes a recommendation either for dismissal of the complaint, order of education, suspension (under Rule 15(a)) (after notice and opportunity to be heard, recommendation to the Supreme Court that the individual be suspended from office, with or without pay, pending final disposition of the charge), private sanction, public sanction or formal proceedings. The sanction may consist of private admonition, warning, or reprimand; or public admonition, warning or reprimand, and may be combined with an order of education. Reprimand is the most severe sanction, unless the Commission votes formal proceedings. The process through the recommendation of a private sanction is confidential, albeit the prior caveat regarding public media leaks. A public sanction is obviously not confidential. Once a recommendation for formal proceeding is made, the remaining process is no longer confidential.

The Commission’s recommendation for order of education, private or public sanction is may be appealed within 30 days by written request filed with the Chief Justice of the Supreme Court of Texas, which then appoints three appellate justices to act as a Special Court of Review. The Special Court of Review is a non-jury, de novo trial review, which follows the Texas Rules of Civil Procedure. The Special Court of Review can dismiss the complaint, affirm the Commission’s decision, impose a greater or lesser sanction, or order formal proceedings. The decision of the Special Court of Review is final.

There is no appeal of a decision to move to Formal Proceedings, whether it the decision is made by the Commission at the initial informal stage or by the Special Court of Review. 

If the Commission votes “formal proceedings,” either the Commission holds the proceeding or a request is made that the Supreme Court of Texas appoint a Special Master, who is a sitting or retired district or appellate judge. The Special Master conducts the proceeding and reports findings of fact to the Commission. A public hearing is then held by the Commission to consider the report of the Special Master. The Commission then either adopts the Special Master’s findings in whole or in part, or rejects them and enters its own finding.

General Timeline of Events Leading up to Formal Proceedings:
· Judge is served with notice of the institution of formal proceedings.
· Judge has 15 days to file an answer.
· Once the 15 days have passed, the Commission must set a time and a place for the hearing and give at least 20 days notice by mail to the judge.
· If the Commission decides that the hearing should be before a Special Master, they must request the Supreme Court, at the time the hearing is set, to appoint a special master. The Supreme Court has 10 days to do this after they receive the Commission’s request.
· The judge can file a motion for summary judgment after the hearing has been set. The Commission, not the special master, must respond to this. (The special master can only make findings of fact, not legal conclusions)

In essence, a formal proceeding is indistinguishable from a civil trial because it provides a judge with due process of law as a person whose property rights are at risk. The 2001 Annual Report by the Commission indicates that they feel that formal proceedings are a step more severe than a public reprimand and therefore would be the most serious result of an informal hearing. After voting to go forward with formal proceedings and serving the judge with notice, the Commission has two options: they can hold the hearing themselves, or they can seek the appointment of a Special Master (a sitting or retired district or appellate judge) by the Supreme Court. Both of these proceedings are open to the public. In the case of a Special Master, the Special Master makes findings of fact, on the basis of which the Commission issues a public censure, dismisses the complaint, requests additional evidence, or makes and forwards a recommendation for removal after a second hearing which is held in front of the Commission. (Thus with the Special Master the judge potentially winds up with two fact-finding proceedings.) During the second hearing, the Commission may adopt the findings of fact by the Special Master in whole or in part, or totally reject them and enter its own findings; only the Commission can make conclusions of law. If the Commission issues a public censure, it is a final action and is not appealable. The Commission can also recommend that the Review Tribunal enter an order prohibiting the judge from ever again holding judicial office. If the Commission recommends removal, the Supreme Court appoints by lot seven justices from the state’s appellate court to serve as a tribunal. Any appeal from the tribunal is directly to the Supreme Court, which considers the case pursuant to the substantial evidence rule. A statement made in the 2001 Annual Report (which tracks the provision in the Constitution) suggests that as a practical matter, the Commission does not consider a public reprimand, warning, and admonition as options following a formal proceeding. 

Judges in other states have been criticized for a number of actions, including a State Supreme Court Justice, who wrote a dissent in seven quatrains and one footnote; while another state level judge (different state) recently came under fire for making remarks about racial diversity at a state university while at a public hearing organized by a caucus of black state legislators. In the first instance, critics claimed that “an opinion that expresses itself in rhyme reflects poorly on the Supreme Court” in question. In the second instance, while the judge claimed infringement upon his freedom of speech, critics commented that it was not what the judge said, but the fact that the judge spoke “before a legislative body” and was not “discussing the law or personal matters.” An expert in judicial ethics stated that in this particular instance the judge’s comments, was made to an informal group of legislators, mixed fact and opinion, and fell into a gray area. 

Tex. Const. Art. V, § 1-a (8) provides: “If, after a formal hearing, or after considering the record and report of a Master, the Commission finds good cause therefore, it shall issue an order of public censure or it shall recommend to a review tribunal the removal or retirement, as the case may be, of the person in question holding an office or position specified in Subsection (6) of the Section and shall thereupon file with the tribunal the entire record before the Commission.”
This provision conflicts with Rule 10(m) of the Texas Rules for the Removal or Retirement of a Judge. That provision provides: “If, after hearing, upon considering the record and the report of the special master, the commission finds good cause therefore, by affirmative vote of six of its members, it shall recommend to the review tribunal the removal, or retirement, as the case may be; or in the alternative, the commission may dismiss the case or publicly order a censure, reprimand, warning, or admonition. Six votes are required for a recommendation of removal or retirement.” 

Reference Materials:

Videotapes Used During Judge's Trial, by Janet Elliott ( Houston Chronicle Austin Bureau )

Therapist:  Zepeda's Problem Anger, Not Racism,  by Michael Wright ( July 16, 2003 ) 

Zepeda Trial Begins in Austin ( Staff Reports, July 16, 2003 )

Attorney:  Race is DA's Motive, by Michael Wright ( Brazoria County, July 17, 2003 )

Zepeda Proceeding Concludes, by Billy Liggett ( Reporter News, July 23, 2003 ) 

Link To:  Texas State Commission on Judicial Conduct