the development of judicial ethics in texas

THE DEVELOPMENT OF JUDICIAL ETHICS IN TEXAS

KEVIN DUBOSE Alexander Dubose & Townsend, LLP

1844 Harvard Street Houston, Texas 77008

(713) 523-2358 (713) 522-4553 (fax)

[email protected]

State Bar of Texas THE HISTORY OF

TEXAS SUPREME COURT JURISPRUDENCE April 11, 2013

Austin

CHAPTER 13

mailto:[email protected]

KEVIN DUBOSE ALEXANDER DUBOSE & TOWNSEND LLP

1844 Harvard Street Houston, Texas 77008

(713) 523-2358CTelephone [email protected]

EDUCATION Rice University (BA English, 1976) University of Texas School of Law (JD 1979) EMPLOYMENT

Alexander Dubose & Townsend LLP (2003-present) Hogan Dubose & Townsend, L.L.P. (1994-2003) Perdue, Turner & Berry; Perdue & Todesco; Jim Perdue & Associates

(of counsel 1987–1994) Solo Practitioner (1985–1987) Ryan & Marshall (partner 1984–1985; associate 1979–1984) University of Houston Law Center

Director of Appellate Advocacy (1990–1994) Adjunct Professor of Appellate Advocacy (2005-10) Director of Legal Research and Writing (1987–1991) Adjunct Professor of Legal Writing (1982, 1983, 1986, 1987) PROFESSIONAL ACTIVITIES AND HONORS

Chief Justice Jack Pope Professionalism Award – Texas Center for Legal Ethics (2012) Fellow, American Academy of Appellate Lawyers (2006-present)

Texas Super Lawyers: Top 100 Lawyers in Texas (2007, 2009-11); Top 100 Lawyers in Houston (2006-present); Civil Appellate Law (2003-present) Listed in Best Lawyers in America in Appellate Law (2004-present) Listed in Chambers USA Client’s Guide in Appellate Law (2005-present) Law Dragon 3000 (list of Top 3,000 lawyers in U.S.) (2010) Chair, Appellate Practice and Advocacy Section, State Bar of Texas (1995-96) Chair, Appellate Practice Section, Houston Bar Association (1992-93) Board Certified in Civil Appellate Law and Personal Injury Trial Law

PUBLICATIONS & PRESENTATIONS: Author/speaker at over 75 Continuing Legal Education courses; author of three legal

periodical articles, and chapters in three professional treatises PERSONAL

Married to Glenda Owen, DDS, 32 years; father of two grown sons; active in St Mark’s UMC; Board member of Houston Urban Debate League (President elect), Main Street Theater (President 2011-present)

The Development of Judicial Ethics in Texas Chapter 13

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................................................. 1

II. SOURCES OF JUDICIAL ETHICS LAW........................................................................................................ 1 A. Texas Constitution, Article V, §11. ...................................................................................................... 1 B. Texas Government Code §21.005; Code of Criminal Procedure art. 30.01 et seq. .............................. 1 C. The Texas Code of Judicial Conduct .................................................................................................... 1 D. State Commission on Judicial Conduct ................................................................................................ 1 E. Texas Rules of Civil Procedure 18a (Recusal and Disqualification of Judges), and 18b (Grounds for

Recusal and Disqualification for Judges) .............................................................................................. 1 F. Texas Rule of Appellate Procedure 16 (Disqualification or Recusal of Appellate Judges) .................. 1 G. Rules for Removal or Retirement of Judges ......................................................................................... 1 H. Judicial Campaign Fairness Act ............................................................................................................ 1

III. HISTORY OF CURRENT TEXAS CODE OF JUDICIAL CONDUCT (1992-97) AND THE ABA MODEL CODE IT IS BASED ON (1924-90) .................................................................................................................. 1 A. History of the ABA Model Code of Judicial Conduct. ......................................................................... 1 B. History of the Texas Code of Judicial Conduct (1992-97). .................................................................. 2

IV. SUPREME COURT JUDICIAL CAMPAIGN FINANCE STUDY COMMITTEE (1999) ............................. 3

V. COMMITTEE TO MAKE RECOMMENDATIONS CONCERNING PORTIONS OF THE CODE OF JUDICIAL CONDUCT (2002) .......................................................................................................................... 5

VI. TEXAS SUPREME COURT TASK FORCE ON THE CODE OF JUDICIAL CONDUCT (2005) ............... 5

VII. TEXAS SUPREME COURT ADVISORY COMMITTEE AND THE AMENDMENT OF TRCP RULES 18A AND 18B (2009-11) .................................................................................................................................. 6

VIII. EFFECT ON TEXAS JUDICIAL ETHICS RULES OF RECENT U.S. SUPREME COURT DECISIONS (WHITE, CAPERTON, AND CITIZENS UNITED). .......................................................................................... 7 A. Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ............................................................ 7 B. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009) ............................................................. 7 C. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ............................................... 8

IX. TEXAS CASES AFFECTING AND REFLECTING THE DEVELOPMENT OF JUDICIAL ETHICS LAW. ................................................................................................................................................................. 8 A. Cases involving campaign matters. ....................................................................................................... 8 B. Other cases involving recusal, disqualifications, and sanctions of judges. ......................................... 10


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THE DEVELOPMENT OF JUDICIAL ETHICS IN TEXAS I. INTRODUCTION The laws, rules, and guidelines for assuring an independent, fair, and competent judiciary can be found sprinkled over several codes, statutes, constitutional provisions, and procedural rules. This patchwork of provisions covers general platitudes about avoiding the appearance of impropriety, procedures and standards for the disqualification and recusal of judges, and specific rules for conducting judicial election campaigns and fundraising. This paper will discuss the development and changes in each of these areas, primarily over the past 20 years. II. SOURCES OF JUDICIAL ETHICS LAW A. Texas Constitution, Article V, §11. The Constitution of 1876 stated the constitutional grounds for judicial disqualification, and with minor changes to reflect changes in the court structure and gender-neutral pronouns, these remain the standards for disqualification today. B. Texas Government Code §21.005; Code of

Criminal Procedure art. 30.01 et seq. These are statutory codifications on the civil side and criminal side, respectively, of the constitutional grounds for disqualification. C. The Texas Code of Judicial Conduct Although Texas has had a Code of Judicial Conduct since 1974, the current version of the Code became effective in 1994. It was a response to the latest version of the ABA Model Code of Judicial Conduct, last significantly modified in 1990. The Code has a preamble and 8 cannons, and has been seen only minor modifications since becoming effective in 1994. D. State Commission on Judicial Conduct The SCJC was created by a 1965 amendment to the Texas Constitution (Art. 5, §1-a). It originally consisted of 9 members, and was called the State Judicial Qualifications Commission. In 1977 the name was changed and the number of members was increased to 11 (and later increased to 13). The Commission is governed by Chapter 33 of the Texas Government Code. It is responsible for investigating allegations of judicial misconduct or judicial disability, and for disciplining judges. It also issues judicial ethics opinions in response to written questions requesting interpretations of the Code of Judicial Conduct.

E. Texas Rules of Civil Procedure 18a (Recusal and Disqualification of Judges), and 18b (Grounds for Recusal and Disqualification for Judges)

The titles are self-explanatory. The rule describing procedures (18a) was promulgated first, becoming effective in 1982, and was re-written in 2011. The rule addressing grounds for disqualification and recusal became effective in 1988, and also was re-written (without substantive changes) in 2011. These rules apply to “any trial court other than a statutory probate court or justice court.” F. Texas Rule of Appellate Procedure 16

(Disqualification or Recusal of Appellate Judges)

Originally included in Texas Rule of Civil Procedure 18b, added by Order effective in 1983, the rule pertaining to justices of the court of appeals and Texas Supreme Court and judges of the Texas Court of Criminal Appeals was moved to the appellate rules in 1986, and recodified in their current form in 1997. G. Rules for Removal or Retirement of Judges This somewhat obscure body of rules governs the procedure to follow when a judge’s perceived ethical problems go beyond recusal in a particular case, and warrant sanctions, censure, or removal from office. Most of these procedures apply to the proceedings of the State Commission on Judicial Conduct, and the appeal of that decision to tribunals appointed by the Texas Supreme Court. These rules were adopted in 1992. H. Judicial Campaign Fairness Act This 1995 legislation primarily limited the amount of campaign contributions for individuals ($5,000 for statewide races), and aggregate amounts for law firms and PACs, on a sliding scale based on the size of the electoral area. This legislation represented a compromise between those who considered it a necessary starting point on the road toward comprehensive judicial selection reform, and those who considered it the final necessary step of campaign finance reform. The Judicial Campaign Fairness Act was codified in various sections of Chapter 253 of the Texas Election Code. III. HISTORY OF CURRENT TEXAS CODE OF

JUDICIAL CONDUCT (1992-97) AND THE ABA MODEL CODE IT IS BASED ON (1924-90)

A. History of the ABA Model Code of Judicial Conduct.

The Texas Code of Judicial Conduct is derived from the ABA Model Code of Judicial Conduct, which


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was first promulgated in 1972. That Code is a direct descendent of the Cannons of Judicial Ethics, which were drafted by an ABA Committee in 1924. They were drafted as a response to an incident involving the 1919 Chicago “Black Sox” gambling scandal that tarnished the image of major league baseball in the early 1920s. To help restore its image, baseball appointed as its first Commissioner Federal District Court Judge Keenesaw Mountain Landis of the Northern District of Illinois. Judge Landis spent about a year and a half simultaneously occupying both positions, helping to restore the image of baseball, but arguably damaging the integrity of the judiciary. The ABA considered Judge Landis’s dual roles to be a conflict of interest, and voted to censure him. Judge Landis then retired from the judiciary, and remained Commissioner of Baseball until his death in 1944. But because of the arguable uncertainty of his ability to be a judge and hold down another high-profile position, the ABA convened a committee in 1924, chaired by Chief Justice William Howard Taft, to draft the Cannons of Judicial Ethics as a means of providing guidance for judges about expected and appropriate behavior. The Canons were a step in the right direction, but were considered by many to be too weak and vague to be enforced. They eventually were replaced by the Model Code of Judicial Conduct in 1972 after another public controversy involving a federal judge brought to light the need for more precise standards. In 1969, President Nixon nominated federal Fourth Circuit Judge Clement Haynsworth as a candidate for the United States Supreme Court. The Senate rejected Haynsworth’s nomination, for a variety of reasons, but one of the sticking points in his confirmation hearing was his failure to recuse himself from some cases before him on the Fourth Circuit where he allegedly owned stock or some other ownership interest in one of the parties. The Canons of Judicial Ethics in effect at the time arguably were not clear about whether recusal or disqualification were required in that situation. The ABA Model Code of Judicial Conduct that was drafted in 1972 carried forward many of the principles of the Canons, but is more specific and more strongly worded. The Model Code was revised in 1990, and revisions or additions have been made in 1999, 2003, and 2007. B. History of the Texas Code of Judicial Conduct

(1992-97). The current version of the Texas Code of Judicial Conduct was a response to the 1990 version of the ABA Model Code of Judicial Conduct. Its birth was not without complications, as indicated by this time-line:

• March 1992: Texas Supreme Court creates Task Force on Judicial Ethics (TFJE) to study revisions to the Texas Code of Judicial Conduct (TCJC), consistent with the 1990 Model Code. Justice Doggett is designated as chair.

• April 1993: TFJE sends unanimous report to Supreme Court proposing an extensive revision to the TCJC.

• June 1993: The Supreme Court unanimously approved the proposed Code revisions, to be effective January 1, 2004. The Supreme Court also asked that the TFJE do more work on Canon 5 regarding fundraising restrictions in judicial campaigns.

• October 1993: The TFJE reports back to the Supreme Court. Justice Doggett later characterized the response as the TFJE rejecting the proposed changes to Canon 5. The Supreme Court characterized the report as requesting additional time to study Canon 5.

• November 2003: The Supreme Court issues and order postponing the effective date of the new TCJC from January 1, 1993 to March 1, 2004 (thereby making the changes inapplicable to the 1994 election cycle). See Texas Supreme Court Misc. Docket No. 93-0233.

Justice Doggett files a 10-page “Dissenting Opinion to Supreme Court Order,” objecting to the postponement of the effective date of the previously approved modifications to the TCJC. In it, he refers to the Task Force’s public hearings on changes to Canon 5 proposed by Chief Justice Phillips, and says that “all those who testified . . . agreed that precipitous changes in Canon 5 would do more harm than good.” Id. at 4 (Doggett, J., dissenting). He also states that “the majority has offered absolutely no justification for suspending enforcement of the newly revised and unanimously endorsed Code of Judicial Conduct.” Id. at 9. “The only reason this Code is being suspended is the complete unwillingness of the majority, meeting here in private, to accept answers offered to judicial campaign issues from the bipartisan Texas Ethics Commission, the Texas Senate, the Texas House Elections Committee, the Supreme Court Ethics Task Force, and the public interest citizens organizations.” Id. at 9-10. Finally, he concludes, “Today the majority vacates more than an order; it vacates the very precept that the Texas Code of Judicial Conduct should be a neutral


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statement of principles designed to ensure public respect for judicial integrity.” Id. at 10.

• December 1994: The Supreme Court meets with the TFJE, and agrees to reinstate its adoption of the newly revised TCJC, absent the proposed changes to Canon 5. The effective date of the new TCJC remains March 1, 2004, and the Court agreed to seek further comment on the proposed changes to Canon 5, primarily involving time limits on judicial fundraising, at four regional judicial conferences.

• July 1994: The TFJE (non-unanimously) reports to the Supreme Court that proposals regarding time limits for the acceptance of judicial campaign contributions should be considered only in the context of comprehensive campaign finance reform enacted by the Legislature.

• September 1994; The Supreme Court adopts revisions to canon 5 and canon 6 of the TCJC, effective January 1, 1995. See Texas Supreme Court Misc. Docket No. 94-9141.

Justice Doggett again files a “Dissenting Opinion to Supreme Court Order,” he complains that imposing time limits has a disproportionate effect on minority candidates, non-incumbents, and those without access to “so-called ‘independent’ committees.” Id. at 3 (Doggett, J. dissenting). He concludes, “Today’s amendment represents . . . only an attempt to gain political advantage and avoid a real solution.” Id. at 5.

Justice Enoch files a “Concurring Opinion to Supreme Court Order,” explaining that “the intemperate writing of my colleague, Justice Doggett, compels a reply in the interest of fairness.” Id. at 1 (Enoch, J., concurring). Justice Enoch explained that the latest amendments to the TCJC are “part of an ongoing process by the Court to make the rules for appropriate judicial behavior fair, balanced, and current.” Id. He explained that the amendment follows the ABA Model Code, and is “neither novel nor radical,” and has been adopted by a majority of the states where judges stand for election or reelection. Id. at 2. He noted that the amendments were consistent with recommendations of the Texas Ethics Commission in 1993, and that even though the TFJE did not endorse these proposals, another Texas Supreme Court Task Force, one on Judicial Appointments, had endorsed these changes. Id. at 3-5. He

rejected the suggestion to wait for more comprehensive legislative action because, “We should not forego the good we can do out of hope that someone else may do something better.” Id. at 6.

• October 1997: Canons 4, 5, and 6 of the TCJC was amended again with considerably less fanfare or acrimony, this time accompanied only by an explanatory per curiam opinion. See Texas Supreme Court Misc. Orders 97-9188. These changes involved a requirement that a judge resign from judicial office upon becoming a candidate for a non-judicial elected office.

IV. SUPREME COURT JUDICIAL CAMPAIGN

FINANCE STUDY COMMITTEE (1999) This 11-member Committee was appointed by the Texas Supreme Court in 1998. It was fairly balanced between trial judges and appellate judges, plaintiffs’ lawyers and defense lawyers, big firm lawyers and small firm lawyers. It was instructed to consider the 1998 ABA Task Force Report on Lawyer’s Political Contributions, the 1997 Report of the Texas Commission on Judicial Efficiency. And a 1993 Report of the Texas Ethics Commission. This committee’s report refers frequently to a 1998 telephone survey of 1200 Texans conducted by the State Justice Institute, referred to as the “Public Trust and Confidence in the Courts and Legal Profession in Texas.” That study revealed:

• 43% felt that campaign contributions have a “very significant” influence on the decisions judges make in the courtroom; another 40% felt that campaign contributions have a “somewhat significant” influence.

• 52% had a favorable impression of the Texas Court system; only 27% unfavorable.

• 82% are satisfied with the process and judges they have observed in the Texas Courts.

• 71% rate Texas judges as “very” or “somewhat” honest and ethical (compared to 40% for lawyers, 39% to auto mechanics, 26% for politicians).

• 70% believe judges should be elected by the people.

In other words, a majority of Texans believe that campaign contributions influence decisions made in the courtroom, yet they are “favorably impressed” and/or “satisfied” with the judges who make those decisions and the system that condones them, feels that judges are honest and ethical despite this influence, and want to continue to elect judges. This


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reflects a satisfaction with business as usual, despite its imperfections. A non-unanimous majority of the committee expressed the opinion that public disillusionment with judicial campaign finance practices is “an inevitable by-product of the fact that Texas judges are chosen in contested elections.” The financial pressures of judicial campaigns are exacerbated by the fact that voters tend to be ill-informed about judicial elections, thus increasing the need to educate them by advertising, and the rising cost of advertising. The committee noted that the Supreme Court had instructed the committee not to consider changes in the Texas judicial selection process. Nevertheless, a majority of the committee urged the next session of the Legislature “to revisit whether Texas’s current elective system of judicial selection should be changed.” (update: No significant changes to the system of selecting judges have been made.) The committee identified four particular concerns about financial campaign practices in Texas:

• Judicial candidates receiving/soliciting campaign contributions from lawyers or litigants who are likely to appear, or are currently appearing, before them in court.

• Judicial candidates receiving/soliciting campaign contributions from persons who they have, or will, appoint as ad litems, masters, or other fee-generating positions.

• Judges receiving/soliciting large contributions at a time when they are not actively facing an opposed race.

• Judicial candidates being required to make contributions to political parties in exchange for endorsements or inclusion on a slate of judicial candidates.

To address these, and other concerns, the Committee made several recommendations. Some were accepted by the Supreme Court, other were not. Those recommendations were:

1. Enhance public access to information about campaign contributions and direct campaign expenditures. The committee recommended that judicial candidates be required to file their campaign disclosure reports with the Office of Court Administration (OCA), and that similar requirements be extended to persons required to file reports of direct expenditure reports (expenditures made by others that directly benefit a candidate’s campaign without the money flowing through the candidate’s campaign.

The Supreme Court did not disagree with this suggestion in principle, but noted that the 76th Legislature had passed two bills that required that campaign disclosure information be filed with the Texas Ethics Commission and posted on the internet, so that the information is accessible in one place by any citizen with internet access.

2. Extend and strengthen the contribution limits of the Judicial Campaign Fairness Act. The Judicial Campaign Fairness Act of 1995 establishes limits for individual and aggregate limits for law firms in the amount of campaign contributions, with factors tied to the size and population of the electoral area. The Committee noted that these limits do not have an enforcement mechanism other than civil and criminal penalties. Most disturbing, nothing required judges who have received contributions in excess of the Act to recuse themselves from cases where the contributors are parties of lawyers. The committee made several specific suggestions regarding the procedure and mechanism for recusal. The Supreme Court accepted this recommendation, and referred the matter to the Supreme Court Advisory Committee to draft appropriate amendments to Rule 18a and 18b of the Civil Rules, and Rule 16 of the Appellate Rules. (Update: Rules 18a and 18b were amended in 2011, but no substantive additions were made to the grounds for recusal.)

3. Promulgate rules to limit the aggregation of campaign war chests. The committee suggested regulating the practice of stockpiling campaign funds when not immediately necessary to finance a contested race, often to deter future opponents. Specifically, the committee suggested limiting such accounts to no more than one-half the ceiling limit of the Texas election Code, but in no event any more than $150,000, and that the candidate have six months after the election to divest herself of excess funds by depositing them in the State Treasury, or returning them to one or more persons from whom contributions were received, or donating the funds to the Texas Equal Access to Justice Foundation. The Supreme Court responded that it felt like these changes could best be addressed through the legislative process, and asked the Texas legislative Council to review whether legislation in this area would be appropriate.

4. Limit the ability of political organizations to use judges as a fund-raising tool. In some


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localities judicial candidates are strongly encouraged to contribute to political organizations (including the local political party), which is perceived as a required tribute to be paid for the privilege of receiving endorsements or being included on slates of candidates. The ABA Model Code prohibits this practice, but the Texas version does not. Again, the Supreme Court responded that it felt like these changes could best be addressed through the legislative process, and asked the Texas legislative Council to review whether legislation in this area would be appropriate.

5. Limit judicial appointments of excessive campaign contributors and repetitious appointments. The committee recommended that judges be banned from appointing lawyers who have made campaign contributions to the judge as ad litems or masters or other fee-generating positions. The recommendation also included an admonition that judges should refrain from reappointing the same lawyers to fee-paying positions. Both of these recommendations included an exception for small communities where enforcing the rule would prevent the judge from appointing the only lawyers willing to handle such an appointment. The Supreme Court announced that it would defer consideration of such a rule until after the Supreme Court Advisory Committee completed its review of the recusal process.

6. Encouragement of the State Bar and Secretary of State to continue efforts to develop and disseminate voter’s guides. This is a self-explanatory effort to increase voter education. The Supreme Court referred this suggestion to the Texas Judicial Council for further study.

V. COMMITTEE TO MAKE RECOMMENDATIONS CONCERNING PORTIONS OF THE CODE OF JUDICIAL CONDUCT (2002)

On June 27, 2002, the United States Supreme Court decided Republican Party of Minnesota v. White, 536 U.S. 765 (2002), declaring unconstitutional a section of the Minnesota Code of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal and political issues that might come before the court for which they were campaigning. Less than a month later, the Texas Supreme Court recognized that the “announcement” clause in the Texas Code of Judicial Conduct was not significantly different from the Minnesota Code

provision declared unconstitutional in White. Recognizing that the State was in the midst of the 2004 election cycle, and wanting to avoid elections being subsequently declared void, the Court hurriedly appointed an advisory committee on July 24, 2004, to draft amendments to the TCJC that would pass constitutional muster. See Misc. Docket No. 02-9026. While the committee was doing its work, then-Texas Supreme Court candidate Steven Wayne Smith filed suit in the Western District of Texas challenging the constitutionality of Canon 5 of the TCJC. On August 6, 2004, Judge Jim Nowlin declared the current version of Canon 5 unconstitutional. The committee made recommendations for amendments to Canons 3 and 5, which were adopted by the Supreme Court on August 22, 2004. See Misc. Docket No. 02-9167. The amendments deleted the former sub-section (1) of Canon 5 prohibiting judges from announcing their opinions on issues that might be subject to judicial interpretation by the court for which the speaker is a candidate, but retained former subdivision (2) prohibiting the making of pledges or promises of conduct in office regarding pending or impending cases or classes of cases, which would cause a reasonable person to believe that the speaker is predisposed to a probable decision. The amendment also added a clause prohibiting statements that would violate Canon 3B(10), which prohibits public comment about pending or impending cases, and extended the scope of that provision to include judicial candidates as well as sitting judges. The court also added a comment to Canon 5 stating that regardless of whether statements made in a judicial campaign are prohibited by the new version of Canon 5, they may raise doubts about a judge’s impartiality in a particular case, and may provide grounds for recusal. Justice Hecht issued a concurring opinion indicating that the advisory committee was divided about whether the retained portions of Canons 3 and 5 also violate the First Amendment. He voted in favor of the proposed amendments because an election was in progress and some immediate guidance was necessary, but indicated that he remained in doubt about whether the revisions were sufficient to comply with the First Amendment. After taking care of this matter expeditiously, the Court announced that it would soon appoint another committee to “continue to examine the extent to which these or other changes to the Texas Code of Judicial Conduct are required. Id. VI. TEXAS SUPREME COURT TASK FORCE

ON THE CODE OF JUDICIAL CONDUCT (2005)

In August 2003, the Court made good on its


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earlier promise to appoint a committee to undertake a more deliberate and in-depth study of the Texas Code of Judicial Conduct, which would be the first thorough review in almost a decade. See Misc. Docket No. 02-9148. The court appointed a 35-person task force, chaired by attorney Chip Babcock, with Chief Justice Jefferson being the Court’s liaison. The task force included judges from the court of criminal appeals, courts of appeals, district courts, county courts, a justice of the peace court, and a municipal judge. It included 5 law school professors (3 of which were deans), practicing lawyers, and members of the public. The task force divided into separate sub-committees to carefully study each of the Canons in the Code. After over 16 months of diligent work, the task force issued a report in January 2005, which was published in the June 2005 Texas Bar Journal. The report was extensive and thorough, recommending amendments to every Canon, ranging from words and phrases inserted here and there to the addition or deletion of entire paragraphs and blocks of text. According to the Texas Supreme Court website, these proposed changes remain “under study” by the court. None of these proposed revisions have been adopted by the court. VII. TEXAS SUPREME COURT ADVISORY

COMMITTEE AND THE AMENDMENT OF TRCP RULES 18A AND 18B (2009-11)

In June 2009, less than a week after the U.S. Supreme Court issued its opinion in Caperton v. A.T. Massey Coal Co., Texas Supreme Court Justice Nathan Hecht (the court’s liaison to the Advisory Committee) wrote to Chip Babcock (chair of the Advisory Committee), and asked the Advisory Committee to consider whether procedural rules needed to be amended in light of that opinion. Over the next two years, the Advisory Committee met, researched, discussed and contemplated Rules 18a and 18b of the Texas Rules of Appellate Procedure pertaining to the disqualification and recusal of trial judges. After considering input from the Advisory Committee, the Court adopted re-written versions of both Rules 18a and 18b on July 5, 2011. Rule 18a, which concerns the procedures for disqualification, was substantially rewritten and contains numerous changes (though much of the substance of the old rule remains). Rule 18b, concerning the grounds for disqualification and recusal, was slightly re-written, but the amendments to Rule 18b “were not intended to be substantive.” The Caperton opinion, which addresses circumstances under which campaign contributions might be grounds for refusal, appeared to have no effect on the amended versions of Rule 18a and 18b, even though the Caperton decision is what

originally motivated the effort to consider amendments to those rules. A pivotal role in the recusal process is played by the regional presiding judges of the nine judicial districts in Texas. If a motion for disqualification or recusal is filed against a trial judge, he must, within three days, either grant the motion or refer the motion to the regional presiding judge. See Tex. R. Civ. P. 18(f). These presiding judges were represented on the Advisory Committee by Judge David Peeples of San Antonio. Judge Peeples sent a memorandum to the Committee expressing the views of the presiding judges about Rules 18a and 18b. Four of the five suggestions made by the presiding judges regarding amendments to 18a, and the suggestion to do nothing to change the grounds for recusal under 18b in light of Caperton, appeared in the final draft of the rules approved by the Supreme Court. Because that is a remarkable bating average in the game of rule amendments, those suggestions provide a god lens through which to view the changes in Rule 18a. Require that the motion state detailed reasons for recusal/disqualification, not just general allegations that impartiality might be questioned. The amended Rule 18a requires that the motion state facts “with detail and particularity.” Id. at 18a(a)(4). The previous version required that facts be stated “with particularity,” but the amendment added “with detail.” Provide that recusal not be based on rulings in the case. The amended version has a new provision stating that a motion “must not be based solely on the judge’s rulings in the case.” Id. at 18a(a)(3). Allow the presiding judge to deny an untimely or legally sufficient motion without a hearing. The amended version of the rule provides that a motion to recuse “that does not comply with this rule may be denied without an oral hearing.” The rule also provides that the nature of the non-compliance must be stated in the order. Make the presiding judge “bulletproof,” i.e. not subject to recusal. This was the only suggestion of the presiding judges not accepted, as litigants can still file a motion to recuse the presiding judge hearing the first motion to recuse. Id. at 18a(g)(1). However, in that instance, the presiding judge still has the power to appoint a judge to hear the first recusal motion. Id. Strengthen the sanctions provision. The amended rule provides that a party filing a motion to recuse can be sanctioned if the motion was “clearly brought for unnecessary delay and without sufficient cause,” (this clause was in the prior version of the rule), or if the


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motion is “groundless and filed in bad faith or for the purpose of harassment.” Id. at 18a(h) (a new addition). However, the amended rule only provides for the recovery of attorney’s fees as sanctions, while the former rule authorized any sanctions recoverable under Rule 215(2)(b). VIII. EFFECT ON TEXAS JUDICIAL ETHICS

RULES OF RECENT U.S. SUPREME COURT DECISIONS (WHITE, CAPERTON, AND CITIZENS UNITED).

Since the turn of the century, three U.S. Supreme Court decisions involving judicial ethics in other states or the federal system have raised questions about Texas Judicial Ethics law. White resulted in an immediate amendment of the Code of Judicial Conduct; Caperton resulted in a re-examination of the grounds for recusal in Rule 18b, with no change being made; and Citizens United has resulted in a Texas Ethics Commission opinion holding that certain provisions of the Texas Elections Code cannot be enforced constitutionally. A. Republican Party of Minnesota v. White, 536

U.S. 765 (2002) In this case the United States Supreme Court declared unconstitutional a provision in the Minnesota Code of Judicial Conduct that prohibited judicial candidates from announcing their views on disputed legal or political issues. The court fractured, with two concurring opinions and two dissenting opinions. The majority applied the strict scrutiny test because the restriction prohibited speech based on content, and found that the State could not prove that the restriction was narrowly tailored to serve a compelling state interest (making distinctions between party bias and subject mater bias, and between campaign speech and pre- or post-campaign speech, as well as judicial opinions in books, articles, and written court opinions. Realizing that the subject provision of the Minnesota Code of Judicial Conduct was almost identical to its Texas counterpart in Texas Code of Judicial Conduct, the Texas Supreme Court acted quickly, appointing an advisory committee and adopting its recommended changes to the Code of Judicial Conduct in less than a month. Misc. Docket No. 02-9167. The amendments deleted the former sub-section of Canon 5 prohibiting judges from announcing opinion on an issue that might be subject to judicial interpretation by the court for which they are running, but retained the subdivision prohibiting the making of pledges or promises of conduct in office regarding pending or impending cases or classes of cases, which would cause a reasonable person to believe that the speaker is predisposed to a probable decision.

Justice Hecht issued a concurring opinion questioning whether the retained portion of Canon 5 also violated the First Amendment. He may have been influenced by the dissenting opinion in White written by Justice Ginsberg and joined by three other justices, which expressed their view that the prohibition against pledging to rule in a certain way (which was not directly at issue in White) was indistinguishable from the prohibition against announcing a position. In any event, Justice Hecht stated that he remained in doubt about whether the hastily-prepared revisions were sufficient to comply with the First Amendment. A new Task Force on the Code of Judicial Conduct was assembled in 2005, but that Task Force, after carefully studying White, did not recommend deleting the restriction on pledges or promises of conduct in office. In fact, the Task Force recommended the addition of an introductory section of Canon 5 that sought voluntary compliance with standards of dignity, impartiality, integrity, and independence. (That recommendation has never been acted upon.) The 2002 amendments also included a comment to Canon 5 suggesting that while campaign speech enjoyed some First Amendment protection, it also could cause a judge’s impartiality to be questioned, and could result in recusal. Yet the 2011 amendments to TRCP 18b, articulating the grounds for recusal, did not add anything about statements made by judges in campaigning for judicial elections. B. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S.

868 (2009) This case arose from a jury verdict in favor of Caperton and against Massey for $50 million for fraudulent misrepresentation and tortuous interference with existing contracts. After the verdict, but before appeal to the West Virginia Supreme Court, Massey’s CEO, Blankenship, supported the candidacy of Brent Benjamin for the West Virginia Supreme Court. Although a West Virginia statute limited individual campaign contributions to $1,000, an organization called “And For the Sake of the Kids” contributed heavily to Benjamin’s campaign, and Blankenship donated $2.5 million to that organization. Blankenship also spent $500,000 to pay for direct mailings, solicitation letters, and media ads supporting Benjamin, for a total of over $3 million in indirect contributions to Benjamin’s campaign, outspending Benjamin’s own campaign committee by more than 3 to 1. When the Caperton case reached the West Virginia Supreme Court, Benjamin was part of a 3-2 majority voting to reverse the judgment against Massey. The U.S. Supreme Court reversed and remanded with instructions for the West Virginia Supreme Court to re-hear the case without Justice Benjamin sitting.


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The majority opinion cited precedent that the Due Process clause requires recusal when a state court judge has “a direct, personal, substantial, pecuniary interest in the case,” or where a judge “has a financial interest in the outcome of the case.” The court avoided the question of whether Justice Benjamin had actual bias, but instead applied an objective standard that did not require proof of actual bias: “whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgement that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” The majority concluded that there was a serious risk of actual bias “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds . . . while the case was pending or imminent.” The opinion ultimately concluded that, “On these extreme facts, the probability of actual bias rises to an unconstitutional level.” (Note: On remand to the West Virginia Supreme Court, with a new justice replacing Justice Benjamin, the West Virginia Supreme Court again reversed, and remanded for entry of a take-nothing judgment.) In response to Caperton, the Texas Supreme Court promptly asked the Supreme Court Advisory Committee to study Texas Rule of Civil Procedure 18b on the grounds for recusal to determine whether the rule should be amended in light of Caperton. After a two-year process, the Supreme Court re-wrote Rule 18b slightly, but announced that it did not intend through this amendment to make any substantive change to Rule 18b. C. Citizens United v. Federal Election Commission,

558 U.S. 310 (2010) In this case a PAC challenged the Federal Election Commission’s enforcement of federal campaign statutes that prohibited “independent expenditures” by corporations. This term was defined as “an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate and that is not made in concert or cooperation with or at the request or suggestion of such candidate . . . or its agents.” The Court found that this prohibition violated the First Amendment. Three months (to the day) after the Citizens United opinion, the Texas Ethics Commission issued Ethics Advisory Opinion No. 489, analyzing the effect of Citizens United on several sections of the Texas Election Code. Although the Texas Election Code does not use the same “independent expenditures” language as the Federal election statutes, it uses the term “direct campaign expenditure,” which is defined in a manner that is substantially similar to the federal

term. Because of the similarity, and the clear holding in Citizen’s United, the Commission concluded, “[W]e cannot enforce sections 253.094 or 253.002 of the Election Code to prohibit a corporation or labor organization from making a direct campaign expenditure or enforce section 253.002 of the Election Code to prohibit any other person from making a direct campaign expenditure.” The Ethics Commission Opinion also stated that the Citizens United opinion cited several opinions upholding federal prohibitions of direct contributions to candidates or officeholders, without commenting on the constitutionality of those restrictions. Accordingly, the Commission declared that it would continue to enforce restrictions prohibiting corporations and labor organizations from making political contributions to candidates or officeholders. The Commission also explained that it would continue to enforce requirements under Chapter 255 of the Election Code that political advertisements require disclosure statements about the source of funding for those advertisements. Finally, even though the Election Code previously prohibited corporations and labor organizations from making direct campaign contributions, because Citizens United permits those contributions, the Commission expressed the view that corporations and labor organizations should be subject to the same disclosure requirements that previously applied only to individuals. IX. TEXAS CASES AFFECTING AND

REFLECTING THE DEVELOPMENT OF JUDICIAL ETHICS LAW.

A. Cases involving campaign matters. Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995). The problem with a vague standard like “impartiality might be reasonably questioned” is that questionable impartiality lies in the eyes of the beholder, and never were two beholders farther apart than in the two opinions issued in this matter. Because of a campaign video sponsored by TEX-PAC (the political action committee of the Texas Medical Association), a motion was filed to recuse four justices in this medical malpractice case. Justice Gammage, who was not named in the motion to recuse, and only fleetingly referred to in the video, wrote an opinion explaining why he was voluntarily recusing himself. Justice Enoch, who was one of the candidates supported in the video, and was one of the subjects of the motion to recuse, wrote an opinion explaining why he was not recusing himself. The 19-minute video, broadcast during the 1992 elections, was a Star Wars parody, analogizing the Texas Trial Lawyers to Darth Vader, and the TMA and other aligned groups as Luke Skywalker. The video


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expressly supported the 1992 election campaigns of three Republican candidates for the Supreme Court, including Justice Enoch. It also quickly flashed TEX-PAC’s 1988 and 1990 slate cards, which included Justice Gammage as one of the endorsed names on one of those cards. Additionally, the video includes a description of a particular medical malpractice case and the devastating effect that an unjust result would have on that doctor, reinforced by a statement on the video from the doctor. The doctor who is featured in the video is the defendant in this case pending before the Texas Supreme Court. Justice Gammage wrote an opinion that he labeled, “Declaration of Recusal.” In it, he emphasized that the defendant in this case was featured prominently in the video, and that he, Justice Gammage, and other sitting justices were mentioned in the video by name. He cites Rule 18b requiring reversal if a judge’s impartiality might be reasonably questioned, and notes that the rule “does not require that the judge must have engaged in any biased or prejudicial conduct.” He ultimately concludes, “I believe a reasonable member of the public at large, knowing all the facts in the public domain, would doubt that the judges portrayed favorably in the TEX-PAC video are actually impartial.” Id. at 875. Justice Enoch also filed an opinion, “responding to declaration of recusal.” He notes that no grounds for constitutional or rule-based disqualification have been raised, and asserts that Justice Gammage has not cited any conduct by himself or other justices that implicates recusal. He then points out that judges have an obligation to decide matters brought before them unless there are grounds for recusal or disqualification, suggesting that Justice Gammage is not only erroneously recusing, but shirking his duties under the Code of Judicial Conduct. Id. at 879. Justice Enoch arrives at a standard of review very similar to what Justice Gammage advocated: “I would ask whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judges conduct, would have a reasonable doubt that the judge is actually impartial.” But his application of that standard varies significantly from Justice Gammage. First, Justice Enoch attributes considerably more knowledge about the realities of the Texas judicial selection process to the reasonable member of the public at large than does Justice Gammage. Id. at 882-83. Second, Justice Enoch feels like a judge who personally engaged in no inappropriate campaign behavior should not be required to recuse because a third part chose to exercise free campaign speech. Id. (Justice Enoch describes the video as “campaigning of the most raw sort, but it is, after all, campaigning,” and “merely the rough and tumble of the campaign process.” Id. at

882.) Finally, Justice Enoch notes that all nine sitting judges have either been opposed or endorsed by TEX-PAC, and under Justice Gammage’s logic, all nine would have to recuse, which “would totally disrupt the administration of justice in Texas. Justice Enoch closes with a personal indictment of the Texas system of electing justices in partisan elections, and says that the members of the court have “unanimously supported efforts to reform judicial elections in Texas.” Id. at 884. But, faced with the realities of the system we have, he does not feel like the circumstance before the court warrants recusal. Hansen v. J.P. Morgan Chase Bank, N.A., 346 S.W.3d 769, Tex. App.—Dallas 2011, no pet.): Held that the mere fact that one of the lawyers in the case was the campaign treasurer of the judge is not grounds for recusal. Id. at 779. Williams v. Viswanathan, 65 S.W.3d 685 (Tex. App. —Amarillo 2001, no pet.) The fact that a litigant’s attorney unsuccessfully ran against one of court of appeals justices in previous election, and the litigant supported the opponent of the appellate justice, did not provide grounds for recusing the justice. Apex Towing Co. v. Tolin, 997 S.W.2d 903 (Tex. App.—Beaumont 1999), rev’d on other grounds, 41 S.W.3d 118 (Tex. 2001): Trial judge did not err for failing to recuse on the basis of having received campaign contributions from one of the attorneys for one of the parties. Id. at 907 (citing Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App.—El Paso 1993, writ denied)). Leug v. Leug, 976 S.W.2d 308 (Tex. App.—Corpus Christi 1998, pet. denied). Husband’s attorney was representing judge in an ongoing but unrelated civil suit, and was judge’s former campaign manager. The court expressed concern about the representation, but because there was no information in the record about the nature of that relationship, and “there are an infinite number of circumstances that affect the determination of whether the judge’s impartiality might reasonably be questioned,” the appellate court could not conclude on the record before it that recusal was mandated. Id. at 311. The court took a similar approach to the campaign manager issue, declining to reverse on an inadequate record, but also noted that “Texas courts have repeatedly rejected the notion that accepting campaign contributions from lawyers creates bias necessitating recusal, or even an appearance of impropriety.” Id. (citing Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App.—El Paso 1993, writ denied)).


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Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). Fact that attorney for one party contributed $10,000 to judge’s campaign fund and served on judge’s campaign steering committee after case filed and assigned to judge’s court did not mandate recusal. B. Other cases involving recusal, disqualifications,

and sanctions of judges. Esquivel v. El Paso Healthcare Systems, Ltd., 225 S.W.3d 83 (Tex. App.—El Paso 2005, no pet.): Plaintiffs argued that because Hospital’s attorney’s law firm was representing the judge in an unrelated civil matter, judge should have voluntarily recused because this representation could cause the judge’s impartiality to be reasonably questioned. No motion to recuse was filed, and this argument was first raised in a motion for new trial. Court of appeals notes that while constitutional disqualification can be raised at any time, recusal must be raised by timely motion (10 days before hearing in question), and the grounds for recusal are waived if not timely asserted. Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007). County Court judge filed federal 1983 action against the Texas Commission on Judicial Conduct, complaining of a censure order issued by that body. The Commission censured Jenevein for holding a press conference in his courtroom, during business hours, wearing judicial robes, in which he came out from behind the bench to read a prepared statements about lawyers in a pending case that he believed were abusing the judicial process. The Fifth Circuit held that the censure order implicated First Amendment rights to free speech because it was content-based, and was not narrowly tailored to a compelling state interest. However, the order did survive strict scrutiny to the extent that it was directed at the judge’s use of the trappings of judicial office, because the state had a compelling interest in preserving the integrity of the courtroom and judicial use of the robe. The case was remanded for the Commission to re-draft its censure order so that it was limited to the improper use of the robe and the courtroom, but not for the content of his speech. In re Bartie, 138 S.W.3d 81 (Tex. Rev. Trib. 2004): A tribunal appointed by the Supreme Court affirmed an order of the Texas State Commission on Judicial Conduct removing a justice of the peace from office and ordering that he never be allowed to hold judicial office in Texas again. The allegations included frequent use of obscene language in the courtroom, failed to follow the law, exhibited incompetence in the law, attempted to interfere with the arrest of an

individual, and participated in or used corporal punishment in truancy matters before the court. In re Canales, 113 S.W.3d 56 (Tex. Rev. Trib. 2003) Review Tribunal affirmed the order of the Texas State Commission on Judicial Conduct removing a district court judge from office and ordering that he never be allowed to hold judicial office in Texas again. The judge violated the Code of Judicial Conduct by engaging in inappropriate, unsolicited and sexually suggestive conduct, including forcibly kissing and fondling two young women, including an 18-yr.-old part-time employee of the district attorney’s office and the 21-yr.-old pregnant daughter of the court’s bailiff. In re Davis, 82 S.W.3d 40 (Special Court of Review 2002): Judge publicly reprimanded for violating the Code of Judicial Conduct by publicly characterizing prosecutor in his court as “sneaky and surreptitious” and alleging that she was guilty of “gross misconduct”; wrote several letters rebuking those who criticized him, including one to the district attorney comparing a prosecutor to a prison guard at Auschwitz, comparing the district attorney’s criticism of the judge to fornicating with his assistant, and suggesting that the judge had biblical authority for his decision-making. In re Lowery, 999 S.W.2d 639 (Tex. Rev. Trib. 1998): Upheld order of the Texas State Commission on Judicial Conduct removing a justice of the peace from office and ordering that he never be allowed to hold judicial office in Texas again. Justice of the peace who had a personal legal dispute over car repairs and went to the car repair shop and commenced an impromptu hearing in an attempt to enforce his earlier order. He also failed to complete the eight hours of additional judicial education as part of his original sanction, and asked a judicial mentor to mis-state the number of hours of education he had completed. He also invoked his judicial office to berate a parking attendant, including the use of a racial epithet. This was taken into consideration, though alone it would not have warranted sanctions.

the development of judicial ethics in texas

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