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 i 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