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

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

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 Chapter 13

THE DEVELOPMENT OF JUDICIAL E. Texas Rules of Civil Procedure 18a (Recusal and Disqualification of Judges), and 18b ETHICS IN TEXAS (Grounds for Recusal and Disqualification for

Judges) I. INTRODUCTION The titles are self-explanatory. The rule The laws, rules, and guidelines for assuring an describing procedures (18a) was promulgated first, independent, fair, and competent judiciary can be becoming effective in 1982, and was re-written in found sprinkled over several codes, statutes, 2011. The rule addressing grounds for disqualification constitutional provisions, and procedural rules. This and recusal became effective in 1988, and also was re- patchwork of provisions covers general platitudes written (without substantive changes) in 2011. These about avoiding the appearance of impropriety, rules apply to “any trial court other than a statutory procedures and standards for the disqualification and probate court or justice court.” recusal of judges, and specific rules for conducting judicial election campaigns and fundraising. F. Texas Rule of Appellate Procedure 16 This paper will discuss the development and (Disqualification or Recusal of Appellate changes in each of these areas, primarily over the past Judges) 20 years. Originally included in Texas Rule of Civil

Procedure 18b, added by Order effective in 1983, the II. SOURCES OF JUDICIAL ETHICS LAW rule pertaining to justices of the court of appeals and A. Texas Constitution, Article V, §11. Texas Supreme Court and judges of the Texas Court of The Constitution of 1876 stated the constitutional Criminal Appeals was moved to the appellate rules in grounds for judicial disqualification, and with minor 1986, and recodified in their current form in 1997. changes to reflect changes in the court structure and gender-neutral pronouns, these remain the standards G. Rules for Removal or Retirement of Judges for disqualification today. This somewhat obscure body of rules governs the procedure to follow when a judge’s perceived ethical B. Texas Government Code §21.005; Code of problems go beyond recusal in a particular case, and Criminal Procedure art. 30.01 et seq. warrant sanctions, censure, or removal from office. These are statutory codifications on the civil side Most of these procedures apply to the proceedings of and criminal side, respectively, of the constitutional the State Commission on Judicial Conduct, and the grounds for disqualification. appeal of that decision to tribunals appointed by the

Texas Supreme Court. These rules were adopted in C. The Texas Code of Judicial Conduct 1992. Although Texas has had a Code of Judicial

Conduct since 1974, the current version of the Code H. Judicial Campaign Fairness Act became effective in 1994. It was a response to the This 1995 legislation primarily limited the amount latest version of the ABA Model Code of Judicial of campaign contributions for individuals ($5,000 for Conduct, last significantly modified in 1990. The Code statewide races), and aggregate amounts for law firms has a preamble and 8 cannons, and has been seen only and PACs, on a sliding scale based on the size of the minor modifications since becoming effective in 1994. electoral area. This legislation represented a

compromise between those who considered it a D. State Commission on Judicial Conduct necessary starting point on the road toward The SCJC was created by a 1965 amendment to comprehensive judicial selection reform, and those the Texas Constitution (Art. 5, §1-a). It originally who considered it the final necessary step of campaign consisted of 9 members, and was called the State finance reform. The Judicial Campaign Fairness Act Judicial Qualifications Commission. In 1977 the name was codified in various sections of Chapter 253 of the was changed and the number of members was Texas Election Code. increased to 11 (and later increased to 13). The

Commission is governed by Chapter 33 of the Texas III. HISTORY OF CURRENT TEXAS CODE OF Government Code. It is responsible for investigating JUDICIAL CONDUCT (1992-97) AND THE allegations of judicial misconduct or judicial disability, ABA MODEL CODE IT IS BASED ON (1924- and for disciplining judges. It also issues judicial ethics 90) opinions in response to written questions requesting A. History of the ABA Model Code of Judicial interpretations of the Code of Judicial Conduct. Conduct.

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

1 The Development of Judicial Ethics in Texas Chapter 13 was first promulgated in 1972. That Code is a direct • March 1992: Texas Supreme Court creates descendent of the Cannons of Judicial Ethics, which Task Force on Judicial Ethics (TFJE) to were drafted by an ABA Committee in 1924. They study revisions to the Texas Code of Judicial were drafted as a response to an incident involving the Conduct (TCJC), consistent with the 1990 1919 Chicago “Black Sox” gambling scandal that Model Code. Justice Doggett is designated as tarnished the image of major league baseball in the chair. early 1920s. To help restore its image, baseball • April 1993: TFJE sends unanimous report to appointed as its first Commissioner Federal District Supreme Court proposing an extensive Court Judge Keenesaw Mountain Landis of the revision to the TCJC. Northern District of Illinois. Judge Landis spent about • June 1993: The Supreme Court unanimously a year and a half simultaneously occupying both approved the proposed Code revisions, to be positions, helping to restore the image of baseball, but effective January 1, 2004. The Supreme arguably damaging the integrity of the judiciary. The Court also asked that the TFJE do more work ABA considered Judge Landis’s dual roles to be a on Canon 5 regarding fundraising restrictions conflict of interest, and voted to censure him. Judge in judicial campaigns. Landis then retired from the judiciary, and remained • October 1993: The TFJE reports back to the Commissioner of Baseball until his death in 1944. But Supreme Court. Justice Doggett later because of the arguable uncertainty of his ability to be characterized the response as the TFJE a judge and hold down another high-profile position, rejecting the proposed changes to Canon 5. the ABA convened a committee in 1924, chaired by The Supreme Court characterized the report Chief Justice William Howard Taft, to draft the as requesting additional time to study Canon Cannons of Judicial Ethics as a means of providing 5. guidance for judges about expected and appropriate • November 2003: The Supreme Court issues behavior. and order postponing the effective date of the The Canons were a step in the right direction, but new TCJC from January 1, 1993 to March 1, were considered by many to be too weak and vague to 2004 (thereby making the changes be enforced. They eventually were replaced by the inapplicable to the 1994 election cycle). See Model Code of Judicial Conduct in 1972 after another Texas Supreme Court Misc. Docket No. 93- public controversy involving a federal judge brought to 0233. light the need for more precise standards. In 1969, Justice Doggett files a 10-page “Dissenting President Nixon nominated federal Fourth Circuit Opinion to Supreme Court Order,” objecting Judge Clement Haynsworth as a candidate for the to the postponement of the effective date of United States Supreme Court. The Senate rejected the previously approved modifications to the Haynsworth’s nomination, for a variety of reasons, but TCJC. In it, he refers to the Task Force’s one of the sticking points in his confirmation hearing public hearings on changes to Canon 5 was his failure to recuse himself from some cases proposed by Chief Justice Phillips, and says before him on the Fourth Circuit where he allegedly that “all those who testified . . . agreed that owned stock or some other ownership interest in one of precipitous changes in Canon 5 would do the parties. The Canons of Judicial Ethics in effect at more harm than good.” Id. at 4 (Doggett, J., the time arguably were not clear about whether recusal dissenting). He also states that “the majority or disqualification were required in that situation. has offered absolutely no justification for The ABA Model Code of Judicial Conduct that suspending enforcement of the newly revised was drafted in 1972 carried forward many of the and unanimously endorsed Code of Judicial principles of the Canons, but is more specific and more Conduct.” Id. at 9. “The only reason this strongly worded. The Model Code was revised in Code is being suspended is the complete 1990, and revisions or additions have been made in unwillingness of the majority, meeting here 1999, 2003, and 2007. in private, to accept answers offered to judicial campaign issues from the bipartisan B. History of the Texas Code of Judicial Conduct Texas Ethics Commission, the Texas Senate, (1992-97). the Texas House Elections Committee, the The current version of the Texas Code of Judicial Supreme Court Ethics Task Force, and the Conduct was a response to the 1990 version of the public interest citizens organizations.” Id. at ABA Model Code of Judicial Conduct. Its birth was 9-10. Finally, he concludes, “Today the not without complications, as indicated by this time- majority vacates more than an order; it line: vacates the very precept that the Texas Code of Judicial Conduct should be a neutral 2 The Development of Judicial Ethics in Texas Chapter 13

statement of principles designed to ensure rejected the suggestion to wait for more public respect for judicial integrity.” Id. at comprehensive legislative action because, 10. “We should not forego the good we can do • December 1994: The Supreme Court meets out of hope that someone else may do with the TFJE, and agrees to reinstate its something better.” Id. at 6. adoption of the newly revised TCJC, absent • October 1997: Canons 4, 5, and 6 of the the proposed changes to Canon 5. The TCJC was amended again with considerably effective date of the new TCJC remains less fanfare or acrimony, this time March 1, 2004, and the Court agreed to seek accompanied only by an explanatory per further comment on the proposed changes to curiam opinion. See Texas Supreme Court Canon 5, primarily involving time limits on Misc. Orders 97-9188. These changes judicial fundraising, at four regional judicial involved a requirement that a judge resign conferences. from judicial office upon becoming a • July 1994: The TFJE (non-unanimously) candidate for a non-judicial elected office. reports to the Supreme Court that proposals regarding time limits for the acceptance of IV. SUPREME COURT JUDICIAL CAMPAIGN judicial campaign contributions should be FINANCE STUDY COMMITTEE (1999) considered only in the context of This 11-member Committee was appointed by the comprehensive campaign finance reform Texas Supreme Court in 1998. It was fairly balanced enacted by the Legislature. between trial judges and appellate judges, plaintiffs’ • September 1994; The Supreme Court adopts lawyers and defense lawyers, big firm lawyers and revisions to canon 5 and canon 6 of the small firm lawyers. It was instructed to consider the TCJC, effective January 1, 1995. See Texas 1998 ABA Task Force Report on Lawyer’s Political Supreme Court Misc. Docket No. 94-9141. Contributions, the 1997 Report of the Texas Justice Doggett again files a “Dissenting Commission on Judicial Efficiency. And a 1993 Report Opinion to Supreme Court Order,” he of the Texas Ethics Commission. complains that imposing time limits has a This committee’s report refers frequently to a disproportionate effect on minority 1998 telephone survey of 1200 Texans conducted by candidates, non-incumbents, and those the State Justice Institute, referred to as the “Public without access to “so-called ‘independent’ Trust and Confidence in the Courts and Legal committees.” Id. at 3 (Doggett, J. dissenting). Profession in Texas.” That study revealed: He concludes, “Today’s amendment represents . . . only an attempt to gain • 43% felt that campaign contributions have a political advantage and avoid a real “very significant” influence on the decisions solution.” Id. at 5. judges make in the courtroom; another 40% Justice Enoch files a “Concurring Opinion to felt that campaign contributions have a Supreme Court Order,” explaining that “the “somewhat significant” influence. intemperate writing of my colleague, Justice • 52% had a favorable impression of the Texas Doggett, compels a reply in the interest of Court system; only 27% unfavorable. fairness.” Id. at 1 (Enoch, J., concurring). • 82% are satisfied with the process and judges Justice Enoch explained that the latest they have observed in the Texas Courts. amendments to the TCJC are “part of an • 71% rate Texas judges as “very” or ongoing process by the Court to make the “somewhat” honest and ethical (compared to rules for appropriate judicial behavior fair, 40% for lawyers, 39% to auto mechanics, balanced, and current.” Id. He explained 26% for politicians). that the amendment follows the ABA Model • 70% believe judges should be elected by the Code, and is “neither novel nor radical,” and people. has been adopted by a majority of the states where judges stand for election or reelection. In other words, a majority of Texans believe that Id. at 2. He noted that the amendments were campaign contributions influence decisions made in consistent with recommendations of the the courtroom, yet they are “favorably impressed” Texas Ethics Commission in 1993, and that and/or “satisfied” with the judges who make those even though the TFJE did not endorse these decisions and the system that condones them, feels proposals, another Texas Supreme Court that judges are honest and ethical despite this Task Force, one on Judicial Appointments, influence, and want to continue to elect judges. This had endorsed these changes. Id. at 3-5. He

3 The Development of Judicial Ethics in Texas Chapter 13 reflects a satisfaction with business as usual, despite its The Supreme Court did not disagree imperfections. with this suggestion in principle, but noted that A non-unanimous majority of the committee the 76th Legislature had passed two bills that expressed the opinion that public disillusionment with required that campaign disclosure information judicial campaign finance practices is “an inevitable be filed with the Texas Ethics Commission and by-product of the fact that Texas judges are chosen in posted on the internet, so that the information contested elections.” The financial pressures of is accessible in one place by any citizen with judicial campaigns are exacerbated by the fact that internet access. voters tend to be ill-informed about judicial elections, 2. Extend and strengthen the contribution limits thus increasing the need to educate them by of the Judicial Campaign Fairness Act. The advertising, and the rising cost of advertising. The Judicial Campaign Fairness Act of 1995 committee noted that the Supreme Court had instructed establishes limits for individual and aggregate the committee not to consider changes in the Texas limits for law firms in the amount of campaign judicial selection process. Nevertheless, a majority of contributions, with factors tied to the size and the committee urged the next session of the Legislature population of the electoral area. The “to revisit whether Texas’s current elective system of Committee noted that these limits do not have judicial selection should be changed.” (update: No an enforcement mechanism other than civil significant changes to the system of selecting judges and criminal penalties. Most disturbing, have been made.) nothing required judges who have received The committee identified four particular concerns contributions in excess of the Act to recuse about financial campaign practices in Texas: themselves from cases where the contributors are parties of lawyers. The committee made • Judicial candidates receiving/soliciting several specific suggestions regarding the campaign contributions from lawyers or procedure and mechanism for recusal. litigants who are likely to appear, or are The Supreme Court accepted this currently appearing, before them in court. recommendation, and referred the matter to the • Judicial candidates receiving/soliciting Supreme Court Advisory Committee to draft campaign contributions from persons who appropriate amendments to Rule 18a and 18b they have, or will, appoint as ad litems, of the Civil Rules, and Rule 16 of the masters, or other fee-generating positions. Appellate Rules. (Update: Rules 18a and 18b • Judges receiving/soliciting large were amended in 2011, but no substantive contributions at a time when they are not additions were made to the grounds for actively facing an opposed race. recusal.) • Judicial candidates being required to make 3. Promulgate rules to limit the aggregation of contributions to political parties in exchange campaign war chests. The committee for endorsements or inclusion on a slate of suggested regulating the practice of stockpiling judicial candidates. campaign funds when not immediately necessary to finance a contested race, often to To address these, and other concerns, the Committee deter future opponents. Specifically, the made several recommendations. Some were accepted committee suggested limiting such accounts to by the Supreme Court, other were not. Those no more than one-half the ceiling limit of the recommendations were: Texas election Code, but in no event any more than $150,000, and that the candidate have six 1. Enhance public access to information about months after the election to divest herself of campaign contributions and direct campaign excess funds by depositing them in the State expenditures. The committee recommended Treasury, or returning them to one or more that judicial candidates be required to file their persons from whom contributions were campaign disclosure reports with the Office of received, or donating the funds to the Texas Court Administration (OCA), and that similar Equal Access to Justice Foundation. requirements be extended to persons required The Supreme Court responded that it to file reports of direct expenditure reports felt like these changes could best be addressed (expenditures made by others that directly through the legislative process, and asked the benefit a candidate’s campaign without the Texas legislative Council to review whether money flowing through the candidate’s legislation in this area would be appropriate. campaign. 4. Limit the ability of political organizations to use judges as a fund-raising tool. In some

4 The Development of Judicial Ethics in Texas Chapter 13

localities judicial candidates are strongly provision declared unconstitutional in White. encouraged to contribute to political Recognizing that the State was in the midst of the 2004 organizations (including the local political election cycle, and wanting to avoid elections being party), which is perceived as a required tribute subsequently declared void, the Court hurriedly to be paid for the privilege of receiving appointed an advisory committee on July 24, 2004, to endorsements or being included on slates of draft amendments to the TCJC that would pass candidates. The ABA Model Code prohibits constitutional muster. See Misc. Docket No. 02-9026. this practice, but the Texas version does not. While the committee was doing its work, then- Again, the Supreme Court responded Texas Supreme Court candidate Steven Wayne Smith that it felt like these changes could best be filed suit in the Western District of Texas challenging addressed through the legislative process, and the constitutionality of Canon 5 of the TCJC. On asked the Texas legislative Council to review August 6, 2004, Judge Jim Nowlin declared the current whether legislation in this area would be version of Canon 5 unconstitutional. appropriate. The committee made recommendations for 5. Limit judicial appointments of excessive amendments to Canons 3 and 5, which were adopted campaign contributors and repetitious by the Supreme Court on August 22, 2004. See Misc. appointments. The committee recommended Docket No. 02-9167. The amendments deleted the that judges be banned from appointing lawyers former sub-section (1) of Canon 5 prohibiting judges who have made campaign contributions to the from announcing their opinions on issues that might be judge as ad litems or masters or other fee- subject to judicial interpretation by the court for which generating positions. The recommendation also the speaker is a candidate, but retained former included an admonition that judges should subdivision (2) prohibiting the making of pledges or refrain from reappointing the same lawyers to promises of conduct in office regarding pending or fee-paying positions. Both of these impending cases or classes of cases, which would recommendations included an exception for cause a reasonable person to believe that the speaker is small communities where enforcing the rule predisposed to a probable decision. would prevent the judge from appointing the The amendment also added a clause prohibiting only lawyers willing to handle such an statements that would violate Canon 3B(10), which appointment. prohibits public comment about pending or impending The Supreme Court announced that it cases, and extended the scope of that provision to would defer consideration of such a rule until include judicial candidates as well as sitting judges. after the Supreme Court Advisory Committee The court also added a comment to Canon 5 completed its review of the recusal process. stating that regardless of whether statements made in a 6. Encouragement of the State Bar and Secretary judicial campaign are prohibited by the new version of of State to continue efforts to develop and Canon 5, they may raise doubts about a judge’s disseminate voter’s guides. This is a self- impartiality in a particular case, and may provide explanatory effort to increase voter education. grounds for recusal. The Supreme Court referred this Justice Hecht issued a concurring opinion suggestion to the Texas Judicial Council for indicating that the advisory committee was divided further study. about whether the retained portions of Canons 3 and 5 also violate the First Amendment. He voted in favor of V. COMMITTEE TO MAKE the proposed amendments because an election was in RECOMMENDATIONS CONCERNING progress and some immediate guidance was necessary, PORTIONS OF THE CODE OF JUDICIAL but indicated that he remained in doubt about whether CONDUCT (2002) the revisions were sufficient to comply with the First On June 27, 2002, the United States Supreme Amendment. Court decided Republican Party of Minnesota v. White, After taking care of this matter expeditiously, the 536 U.S. 765 (2002), declaring unconstitutional a Court announced that it would soon appoint another section of the Minnesota Code of Judicial Conduct committee to “continue to examine the extent to which prohibiting judicial candidates from announcing their these or other changes to the Texas Code of Judicial views on disputed legal and political issues that might Conduct are required. Id. come before the court for which they were campaigning. Less than a month later, the Texas VI. TEXAS SUPREME COURT TASK FORCE Supreme Court recognized that the “announcement” ON THE CODE OF JUDICIAL CONDUCT clause in the Texas Code of Judicial Conduct was not (2005) significantly different from the Minnesota Code In August 2003, the Court made good on its

5 The Development of Judicial Ethics in Texas Chapter 13 earlier promise to appoint a committee to undertake a originally motivated the effort to consider amendments more deliberate and in-depth study of the Texas Code to those rules. of Judicial Conduct, which would be the first thorough A pivotal role in the recusal process is played by review in almost a decade. See Misc. Docket No. 02- the regional presiding judges of the nine judicial 9148. The court appointed a 35-person task force, districts in Texas. If a motion for disqualification or chaired by attorney Chip Babcock, with Chief Justice recusal is filed against a trial judge, he must, within Jefferson being the Court’s liaison. The task force three days, either grant the motion or refer the motion included judges from the court of criminal appeals, to the regional presiding judge. See Tex. R. Civ. P. courts of appeals, district courts, county courts, a 18(f). These presiding judges were represented on the justice of the peace court, and a municipal judge. It Advisory Committee by Judge David Peeples of San included 5 law school professors (3 of which were Antonio. Judge Peeples sent a memorandum to the deans), practicing lawyers, and members of the public. Committee expressing the views of the presiding The task force divided into separate sub- judges about Rules 18a and 18b. Four of the five committees to carefully study each of the Canons in the suggestions made by the presiding judges regarding Code. After over 16 months of diligent work, the task amendments to 18a, and the suggestion to do nothing force issued a report in January 2005, which was to change the grounds for recusal under 18b in light of published in the June 2005 Texas Bar Journal. The Caperton, appeared in the final draft of the rules report was extensive and thorough, recommending approved by the Supreme Court. Because that is a amendments to every Canon, ranging from words and remarkable bating average in the game of rule phrases inserted here and there to the addition or amendments, those suggestions provide a god lens deletion of entire paragraphs and blocks of text. through which to view the changes in Rule 18a. According to the Texas Supreme Court website, these proposed changes remain “under study” by the Require that the motion state detailed reasons for court. None of these proposed revisions have been recusal/disqualification, not just general allegations adopted by the court. that impartiality might be questioned. The amended Rule 18a requires that the motion state facts “with VII. TEXAS SUPREME COURT ADVISORY detail and particularity.” Id. at 18a(a)(4). The COMMITTEE AND THE AMENDMENT OF previous version required that facts be stated “with TRCP RULES 18A AND 18B (2009-11) particularity,” but the amendment added “with detail.” In June 2009, less than a week after the U.S. Supreme Court issued its opinion in Caperton v. A.T. Provide that recusal not be based on rulings in the case. Massey Coal Co., Texas Supreme Court Justice Nathan The amended version has a new provision stating that a Hecht (the court’s liaison to the Advisory Committee) motion “must not be based solely on the judge’s wrote to Chip Babcock (chair of the Advisory rulings in the case.” Id. at 18a(a)(3). Committee), and asked the Advisory Committee to consider whether procedural rules needed to be Allow the presiding judge to deny an untimely or amended in light of that opinion. legally sufficient motion without a hearing. The Over the next two years, the Advisory Committee amended version of the rule provides that a motion to met, researched, discussed and contemplated Rules 18a recuse “that does not comply with this rule may be and 18b of the Texas Rules of Appellate Procedure denied without an oral hearing.” The rule also pertaining to the disqualification and recusal of trial provides that the nature of the non-compliance must be judges. After considering input from the Advisory stated in the order. Committee, the Court adopted re-written versions of both Rules 18a and 18b on July 5, 2011. Rule 18a, Make the presiding judge “bulletproof,” i.e. not subject which concerns the procedures for disqualification, to recusal. This was the only suggestion of the was substantially rewritten and contains numerous presiding judges not accepted, as litigants can still file changes (though much of the substance of the old rule a motion to recuse the presiding judge hearing the first remains). Rule 18b, concerning the grounds for motion to recuse. Id. at 18a(g)(1). However, in that disqualification and recusal, was slightly re-written, instance, the presiding judge still has the power to but the amendments to Rule 18b “were not intended to appoint a judge to hear the first recusal motion. Id. be substantive.” The Caperton opinion, which addresses circumstances under which campaign Strengthen the sanctions provision. The amended rule contributions might be grounds for refusal, appeared to provides that a party filing a motion to recuse can be have no effect on the amended versions of Rule 18a sanctioned if the motion was “clearly brought for and 18b, even though the Caperton decision is what unnecessary delay and without sufficient cause,” (this clause was in the prior version of the rule), or if the

6 The Development of Judicial Ethics in Texas Chapter 13 motion is “groundless and filed in bad faith or for the Justice Hecht issued a concurring opinion purpose of harassment.” Id. at 18a(h) (a new addition). questioning whether the retained portion of Canon 5 However, the amended rule only provides for the also violated the First Amendment. He may have been recovery of attorney’s fees as sanctions, while the influenced by the dissenting opinion in White written former rule authorized any sanctions recoverable under by Justice Ginsberg and joined by three other justices, Rule 215(2)(b). which expressed their view that the prohibition against pledging to rule in a certain way (which was not VIII. EFFECT ON TEXAS JUDICIAL ETHICS directly at issue in White) was indistinguishable from RULES OF RECENT U.S. SUPREME the prohibition against announcing a position. In any COURT DECISIONS (WHITE, event, Justice Hecht stated that he remained in doubt CAPERTON, AND CITIZENS UNITED). about whether the hastily-prepared revisions were Since the turn of the century, three U.S. sufficient to comply with the First Amendment. A new Supreme Court decisions involving judicial ethics in Task Force on the Code of Judicial Conduct was other states or the federal system have raised questions assembled in 2005, but that Task Force, after carefully about Texas Judicial Ethics law. White resulted in an studying White, did not recommend deleting the immediate amendment of the Code of Judicial restriction on pledges or promises of conduct in office. Conduct; Caperton resulted in a re-examination of the In fact, the Task Force recommended the addition of an grounds for recusal in Rule 18b, with no change being introductory section of Canon 5 that sought voluntary made; and Citizens United has resulted in a Texas compliance with standards of dignity, impartiality, Ethics Commission opinion holding that certain integrity, and independence. (That recommendation provisions of the Texas Elections Code cannot be has never been acted upon.) enforced constitutionally. The 2002 amendments also included a comment to Canon 5 suggesting that while campaign speech A. Republican Party of Minnesota v. White, 536 enjoyed some First Amendment protection, it also U.S. 765 (2002) could cause a judge’s impartiality to be questioned, and In this case the United States Supreme Court could result in recusal. Yet the 2011 amendments to declared unconstitutional a provision in the Minnesota TRCP 18b, articulating the grounds for recusal, did not Code of Judicial Conduct that prohibited judicial add anything about statements made by judges in candidates from announcing their views on disputed campaigning for judicial elections. legal or political issues. The court fractured, with two concurring opinions and two dissenting opinions. The B. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. majority applied the strict scrutiny test because the 868 (2009) restriction prohibited speech based on content, and This case arose from a jury verdict in favor of found that the State could not prove that the restriction Caperton and against Massey for $50 million for was narrowly tailored to serve a compelling state fraudulent misrepresentation and tortuous interference interest (making distinctions between party bias and with existing contracts. After the verdict, but before subject mater bias, and between campaign speech and appeal to the West Virginia Supreme Court, Massey’s pre- or post-campaign speech, as well as judicial CEO, Blankenship, supported the candidacy of Brent opinions in books, articles, and written court opinions. Benjamin for the West Virginia Supreme Court. Realizing that the subject provision of the Although a West Virginia statute limited individual Minnesota Code of Judicial Conduct was almost campaign contributions to $1,000, an organization identical to its Texas counterpart in Texas Code of called “And For the Sake of the Kids” contributed Judicial Conduct, the Texas Supreme Court acted heavily to Benjamin’s campaign, and Blankenship quickly, appointing an advisory committee and donated $2.5 million to that organization. Blankenship adopting its recommended changes to the Code of also spent $500,000 to pay for direct mailings, Judicial Conduct in less than a month. Misc. Docket solicitation letters, and media ads supporting No. 02-9167. The amendments deleted the former sub- Benjamin, for a total of over $3 million in indirect section of Canon 5 prohibiting judges from announcing contributions to Benjamin’s campaign, outspending opinion on an issue that might be subject to judicial Benjamin’s own campaign committee by more than 3 interpretation by the court for which they are running, to 1. When the Caperton case reached the West but retained the subdivision prohibiting the making of Virginia Supreme Court, Benjamin was part of a 3-2 pledges or promises of conduct in office regarding majority voting to reverse the judgment against pending or impending cases or classes of cases, which Massey. would cause a reasonable person to believe that the The U.S. Supreme Court reversed and remanded speaker is predisposed to a probable decision. with instructions for the West Virginia Supreme Court to re-hear the case without Justice Benjamin sitting.

7 The Development of Judicial Ethics in Texas Chapter 13

The majority opinion cited precedent that the Due term. Because of the similarity, and the clear holding Process clause requires recusal when a state court in Citizen’s United, the Commission concluded, “[W]e judge has “a direct, personal, substantial, pecuniary cannot enforce sections 253.094 or 253.002 of the interest in the case,” or where a judge “has a financial Election Code to prohibit a corporation or labor interest in the outcome of the case.” The court avoided organization from making a direct campaign the question of whether Justice Benjamin had actual expenditure or enforce section 253.002 of the Election bias, but instead applied an objective standard that did Code to prohibit any other person from making a direct not require proof of actual bias: “whether, under a campaign expenditure.” realistic appraisal of psychological tendencies and The Ethics Commission Opinion also stated that human weakness, the interest poses such a risk of the Citizens United opinion cited several opinions actual bias or prejudgement that the practice must be upholding federal prohibitions of direct contributions forbidden if the guarantee of due process is to be to candidates or officeholders, without commenting on adequately implemented.” The majority concluded that the constitutionality of those restrictions. Accordingly, there was a serious risk of actual bias “when a person the Commission declared that it would continue to with a personal stake in a particular case had a enforce restrictions prohibiting corporations and labor significant and disproportionate influence in placing organizations from making political contributions to the judge on the case by raising funds . . . while the candidates or officeholders. case was pending or imminent.” The opinion The Commission also explained that it would ultimately concluded that, “On these extreme facts, the continue to enforce requirements under Chapter 255 of probability of actual bias rises to an unconstitutional the Election Code that political advertisements require level.” (Note: On remand to the West Virginia disclosure statements about the source of funding for Supreme Court, with a new justice replacing Justice those advertisements. Benjamin, the West Virginia Supreme Court again Finally, even though the Election Code previously reversed, and remanded for entry of a take-nothing prohibited corporations and labor organizations from judgment.) making direct campaign contributions, because In response to Caperton, the Texas Supreme Citizens United permits those contributions, the Court promptly asked the Supreme Court Advisory Commission expressed the view that corporations and Committee to study Texas Rule of Civil Procedure 18b labor organizations should be subject to the same on the grounds for recusal to determine whether the disclosure requirements that previously applied only to rule should be amended in light of Caperton. After a individuals. two-year process, the Supreme Court re-wrote Rule 18b slightly, but announced that it did not intend IX. TEXAS CASES AFFECTING AND through this amendment to make any substantive REFLECTING THE DEVELOPMENT OF change to Rule 18b. JUDICIAL ETHICS LAW. A. Cases involving campaign matters. C. Citizens United v. Federal Election Commission, Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995). The 558 U.S. 310 (2010) problem with a vague standard like “impartiality might In this case a PAC challenged the Federal Election be reasonably questioned” is that questionable Commission’s enforcement of federal campaign impartiality lies in the eyes of the beholder, and never statutes that prohibited “independent expenditures” by were two beholders farther apart than in the two corporations. This term was defined as “an opinions issued in this matter. Because of a campaign expenditure by a person expressly advocating the video sponsored by TEX-PAC (the political action election or defeat of a clearly identified candidate and committee of the Texas Medical Association), a that is not made in concert or cooperation with or at the motion was filed to recuse four justices in this medical request or suggestion of such candidate . . . or its malpractice case. Justice Gammage, who was not agents.” The Court found that this prohibition violated named in the motion to recuse, and only fleetingly the First Amendment. referred to in the video, wrote an opinion explaining Three months (to the day) after the Citizens why he was voluntarily recusing himself. Justice United opinion, the Texas Ethics Commission issued Enoch, who was one of the candidates supported in the Ethics Advisory Opinion No. 489, analyzing the effect video, and was one of the subjects of the motion to of Citizens United on several sections of the Texas recuse, wrote an opinion explaining why he was not Election Code. Although the Texas Election Code recusing himself. does not use the same “independent expenditures” The 19-minute video, broadcast during the 1992 language as the Federal election statutes, it uses the elections, was a Star Wars parody, analogizing the term “direct campaign expenditure,” which is defined Texas Trial Lawyers to Darth Vader, and the TMA and in a manner that is substantially similar to the federal other aligned groups as Luke Skywalker. The video

8 The Development of Judicial Ethics in Texas Chapter 13 expressly supported the 1992 election campaigns of 882.) Finally, Justice Enoch notes that all nine sitting three Republican candidates for the Supreme Court, judges have either been opposed or endorsed by TEX- including Justice Enoch. It also quickly flashed TEX- PAC, and under Justice Gammage’s logic, all nine PAC’s 1988 and 1990 slate cards, which included would have to recuse, which “would totally disrupt the Justice Gammage as one of the endorsed names on one administration of justice in Texas. of those cards. Additionally, the video includes a Justice Enoch closes with a personal indictment of description of a particular medical malpractice case the Texas system of electing justices in partisan and the devastating effect that an unjust result would elections, and says that the members of the court have have on that doctor, reinforced by a statement on the “unanimously supported efforts to reform judicial video from the doctor. The doctor who is featured in elections in Texas.” Id. at 884. But, faced with the the video is the defendant in this case pending before realities of the system we have, he does not feel like the Texas Supreme Court. the circumstance before the court warrants recusal. Justice Gammage wrote an opinion that he labeled, “Declaration of Recusal.” In it, he emphasized Hansen v. J.P. Morgan Chase Bank, N.A., 346 that the defendant in this case was featured S.W.3d 769, Tex. App.—Dallas 2011, no pet.): Held prominently in the video, and that he, Justice that the mere fact that one of the lawyers in the case Gammage, and other sitting justices were mentioned in was the campaign treasurer of the judge is not grounds the video by name. He cites Rule 18b requiring for recusal. Id. at 779. reversal if a judge’s impartiality might be reasonably questioned, and notes that the rule “does not require Williams v. Viswanathan, 65 S.W.3d 685 (Tex. App. that the judge must have engaged in any biased or —Amarillo 2001, no pet.) The fact that a litigant’s prejudicial conduct.” He ultimately concludes, “I attorney unsuccessfully ran against one of court of believe a reasonable member of the public at large, appeals justices in previous election, and the litigant knowing all the facts in the public domain, would supported the opponent of the appellate justice, did not doubt that the judges portrayed favorably in the TEX- provide grounds for recusing the justice. PAC video are actually impartial.” Id. at 875. Justice Enoch also filed an opinion, “responding Apex Towing Co. v. Tolin, 997 S.W.2d 903 (Tex. to declaration of recusal.” He notes that no grounds for App.—Beaumont 1999), rev’d on other grounds, 41 constitutional or rule-based disqualification have been S.W.3d 118 (Tex. 2001): Trial judge did not err for raised, and asserts that Justice Gammage has not cited failing to recuse on the basis of having received any conduct by himself or other justices that implicates campaign contributions from one of the attorneys for recusal. He then points out that judges have an one of the parties. Id. at 907 (citing Aguilar v. obligation to decide matters brought before them Anderson, 855 S.W.2d 799, 802 (Tex. App.—El Paso unless there are grounds for recusal or disqualification, 1993, writ denied)). suggesting that Justice Gammage is not only erroneously recusing, but shirking his duties under the Leug v. Leug, 976 S.W.2d 308 (Tex. App.—Corpus Code of Judicial Conduct. Id. at 879. Christi 1998, pet. denied). Husband’s attorney was Justice Enoch arrives at a standard of review very representing judge in an ongoing but unrelated civil similar to what Justice Gammage advocated: “I would suit, and was judge’s former campaign manager. The ask whether a reasonable member of the public at court expressed concern about the representation, but large, knowing all the facts in the public domain because there was no information in the record about concerning the judges conduct, would have a the nature of that relationship, and “there are an infinite reasonable doubt that the judge is actually impartial.” number of circumstances that affect the determination But his application of that standard varies significantly of whether the judge’s impartiality might reasonably be from Justice Gammage. First, Justice Enoch attributes questioned,” the appellate court could not conclude on considerably more knowledge about the realities of the the record before it that recusal was mandated. Id. at Texas judicial selection process to the reasonable 311. The court took a similar approach to the member of the public at large than does Justice campaign manager issue, declining to reverse on an Gammage. Id. at 882-83. Second, Justice Enoch feels inadequate record, but also noted that “Texas courts like a judge who personally engaged in no have repeatedly rejected the notion that accepting inappropriate campaign behavior should not be campaign contributions from lawyers creates bias required to recuse because a third part chose to necessitating recusal, or even an appearance of exercise free campaign speech. Id. (Justice Enoch impropriety.” Id. (citing Aguilar v. Anderson, 855 describes the video as “campaigning of the most raw S.W.2d 799, 802 (Tex. App.—El Paso 1993, writ sort, but it is, after all, campaigning,” and “merely the denied)). rough and tumble of the campaign process.” Id. at

9 The Development of Judicial Ethics in Texas Chapter 13

Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. individual, and participated in or used corporal App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). punishment in truancy matters before the court. Fact that attorney for one party contributed $10,000 to judge’s campaign fund and served on judge’s In re Canales, 113 S.W.3d 56 (Tex. Rev. Trib. 2003) campaign steering committee after case filed and Review Tribunal affirmed the order of the Texas State assigned to judge’s court did not mandate recusal. Commission on Judicial Conduct removing a district court judge from office and ordering that he never be B. Other cases involving recusal, disqualifications, allowed to hold judicial office in Texas again. The and sanctions of judges. judge violated the Code of Judicial Conduct by Esquivel v. El Paso Healthcare Systems, Ltd., 225 engaging in inappropriate, unsolicited and sexually S.W.3d 83 (Tex. App.—El Paso 2005, no pet.): suggestive conduct, including forcibly kissing and Plaintiffs argued that because Hospital’s attorney’s law fondling two young women, including an 18-yr.-old firm was representing the judge in an unrelated civil part-time employee of the district attorney’s office and matter, judge should have voluntarily recused because the 21-yr.-old pregnant daughter of the court’s bailiff. this representation could cause the judge’s impartiality to be reasonably questioned. No motion to recuse was In re Davis, 82 S.W.3d 40 (Special Court of Review filed, and this argument was first raised in a motion for 2002): Judge publicly reprimanded for violating the new trial. Court of appeals notes that while Code of Judicial Conduct by publicly characterizing constitutional disqualification can be raised at any prosecutor in his court as “sneaky and surreptitious” time, recusal must be raised by timely motion (10 days and alleging that she was guilty of “gross misconduct”; before hearing in question), and the grounds for recusal wrote several letters rebuking those who criticized him, are waived if not timely asserted. including one to the district attorney comparing a prosecutor to a prison guard at Auschwitz, comparing Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007). the district attorney’s criticism of the judge to County Court judge filed federal 1983 action against fornicating with his assistant, and suggesting that the the Texas Commission on Judicial Conduct, judge had biblical authority for his decision-making. complaining of a censure order issued by that body. The Commission censured Jenevein for holding a press In re Lowery, 999 S.W.2d 639 (Tex. Rev. Trib. conference in his courtroom, during business hours, 1998): Upheld order of the Texas State Commission on wearing judicial robes, in which he came out from Judicial Conduct removing a justice of the peace from behind the bench to read a prepared statements about office and ordering that he never be allowed to hold lawyers in a pending case that he believed were judicial office in Texas again. Justice of the peace who abusing the judicial process. The Fifth Circuit held had a personal legal dispute over car repairs and went that the censure order implicated First Amendment to the car repair shop and commenced an impromptu rights to free speech because it was content-based, and hearing in an attempt to enforce his earlier order. He was not narrowly tailored to a compelling state interest. also failed to complete the eight hours of additional However, the order did survive strict scrutiny to the judicial education as part of his original sanction, and extent that it was directed at the judge’s use of the asked a judicial mentor to mis-state the number of trappings of judicial office, because the state had a hours of education he had completed. He also invoked compelling interest in preserving the integrity of the his judicial office to berate a parking attendant, courtroom and judicial use of the robe. The case was including the use of a racial epithet. This was taken remanded for the Commission to re-draft its censure into consideration, though alone it would not have order so that it was limited to the improper use of the warranted sanctions. 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

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