*1 525 Casida, we’d have her and to name Mr. argument from the other side.
the same supported
The trial court’s comments are during the hear- the evidence adduced of time-
ing. possible than the lack Other returning inventory
liness list of
claims, contain the record does not evi- “misapplied or embez- Carolyn
dence that
zled, misapply about to [s]he [wa]s or embezzle, any part proper- all or care;”
ty she h[er] committed gross guilty “gross misconduct or performance
mismanagement” 149C(a). See
her Point of er- duties.
ror is overruled. seven
We affirm the order of the trial court part
part, and reverse said order court for
remand this cause trial proceedings
further consistent our (1) that,
holdings property located at Drive, Parkway Magnolia,
81927 Texas exempt
to be set aside as property (2) estate; Roy right
decedent’s has no occupation occupy,
continue to or resume
of, Drive; at Parkway house
(3) hearing inventory ap- new light
praisement must be conducted Parkway property Drive be-
ing exempt property to be found
estate. PART;
AFFIRMED IN REVERSED
IN PART AND REMANDED. BARR, Judge,
In re L. “Jim” James Judicial District Court of
337th
Texas.
No. 67. Tribunal, Appointed
Review of Texas.
Supreme Court
Feb. Rehearing Overruling
Opinion
March *5 Flowers, Zimmerman,
Robert David Austin, Petitioner, Attorneys State *6 Commission on Judicial Conduct. Parnham, Odon, George J. Wendell A. Jr., Houston, Attorneys Respondent, James L. “Jim” Barr.
OPINION BARAJAS, Chief Justice RICHARD delivered of opinion the Review Tribunal in which Chief Justices CORNELIUS, DAVIS, RAMEY and STOVER, Justice join.1 This action from results the recommen- by dation the State Commission on Judi- cial Respondent, Conduct that L. James Barr, “Jim” Judge be removed as of the 337th Judicial Court of the District State Texas, further, of that prohibit- he be Justice, Waco; composed Appeals, 1. The Review of Tribunal of Hon. Tenth Court Hon. Cornelius, Justice, Justice, Holman, William J. Chief Sixth Dixon W. Second Court of Texarkana, Appeals, designated Court of Pre- Worth; Appeals, Justice, Carolyn Wright, Fort Hon. Justice; Jr., siding Ramey, B. Hon. Tom Chief Dallas; Appeals, Fifth Court of Hon. Justice, Appeals, Tyler; Twelfth Court of Chief Stover, Justice, Appeals, Earl Ninth Court of Eighth Barajas, Justice Richard District Court Beaumont. Paso; Davis, Appeals, El Rex Hon. Chief ’ attempt to in to an reset response office in fu- himself holding ed from fur- rejected Special The Master ture.2 Barr has the find- a criminal case. Judge Barr, conclusions, Judge throughout ings, recommendations ther found that Commission, bench, in response, periodically chal- has his tenure on the attorneys lenges findings and ultimate recom- who referred to assistant district removed office. mendation that he be are female “babes.” findings We affirm Commission’s Special The further found that Master part, part, reverse in and affirm the ulti- that a Judge willfully Barr ordered writ of mate of removal. recommendation bring a sheriffs attachment issued be a time that deputy him at neither before OF THE EVIDENCE SUMMARY I. requested had nor defense prosecution comprehensive The record the instant nor filed an that such a be issued writ case reflects that the State Commission deputy was affidavit that the sheriffs adopted findings Judicial Conduct case. The material in a criminal witness fact a Special which were entered Mas- Judge that Barr Special also found Master Special Judge ter. The Master found that willfully verbally instructed that engaged James L. Barr in willful or “Jim” custody taken into deputy sheriffs persistent conduct that is inconsis- having without reviewed benefit proper performance tent with the of his subpoena recitations contained both Const, duties, of Tex. art. violation attachment; and, that and writ of such l-a(6)A (1993), further, Judge contrary provi- to established actiоn willfully provisions Barr violated various Constitution and sions United States See the Texas Code of Judicial Conduct. the constitution of the State Texas. (1998), reprinted Tex.Code Jud. Conduct Judge Special Barr Master found Ann., tit. app. Tex.Gov’t Code subtit. G willfully deputy set the sheriffs bail for (Vernon 1997). B Among other things, the $50,000 the deputy with the intent Special specifically Master found spend jail time in in the absence receiv- Judge Ban*, through sexual comments deputy’s ing as to the financial evidence gestures, violated the constitution Master condition. The found State Texas and the Texas Code willfully Barr the sheriffs excluded Conduct, motioning an assis- being present with deputy’s counsel from bench, attorney, tant district from the being his client as his client was addressed *7 as if crooking finger his index he wanted Judge the the bench. her, stating just her to “I approach, and others, among findings, The above if I could make you wanted to see come will be detailed in supporting the evidence orgasm] with one in finger;” [reach an is- the discussion of each telling attorney assistant district who an presented for sues review. sought jury to her office a return while deliberated that are so to look “[Y]ou nice HISTORY II. PROCEDURAL at, leave, you if all I’ll have to at all look dicks;” swinging in The in the instant case estab- telling afternoon are record 1996, 19, attorney Judge lishes that December assistant district she must on Barr, Respondent, reasoning that James L. was period, on her “Jim” “[W]omen purse Proceedings. Formal always carry around their served with Notice of when 1997, and, January 28, upon request they’re period;” stating their in On on Commission, Court attorney Supreme ap- a could Texas “go certain screw 23, 1997, Supreme cial office the future. action 2. On Court October brought in Const, with Tex art. appointed accordance a Review Tribunal review (1993) Judges, § 1-a of the State Commission on recommendation Tex.R.Rem’l/Ret. (1993), promulgated by the Judge Barr 56 Tex.B.J. 823 Conduct that be removed 22,May Supreme holding judi- Texas Court on prohibited from from office and pointed points jurisdiction, the Honorable Noah Kennedy respective within their Special if beyond. Master to hear evidence on judiciary Members charges report Texas, thereon to the of the municipal Com- State of whether a 1997, Stockton, mission. In March a formal hearing judge justice in Fort on the peace County, merits was conducted before the Cameron the county Special Master College at the South Texas court at law Liberty County, a Law, Houston, 14, Ozona, April Texas. On state district justice on 1997, Special Master filed Appeals, Texarkana, his initial the Sixth Court of findings of fact with Commission in the Chief Supreme Justice of Texas Court, which he a preponderance concluded thаt all guidon serve as collective Judge the evidence showed Barr to the banner representing fairness and im- misconduct, engaged judicial alleged. partiality It our state. is for that rea- 2, May 1997, son, On others, request- plus judiciary the Commission must Special ed that the Master make findings respect nurture and maintain for their de- cisions, concerning the “willfulness” of as well as the of the State Barr’s conduct. The Commission jurist also re- Texas as a whole. The Texas quested that the must Special highest Master conduct a be held to the standards of hearing conduct, findings integrity to make much concerning addi- ethical more tional alleged which so than the to which misconduct was said standards members of 22,1997. legislative to have April occurred on executive and branches are Subse- held quent hearing, Consequently, to the accountable. the ulti- initial the Commis- mate sion amended standard for conduct in the original its Notice of Formal State of Texas must be more than effort- Proceedings. September On 11 and law, rather, less obedience but must evidentiary hearing second be conduct constantly which reaffirms 19, 1997, conducted. September On high responsibilities one’s fitness for the Special Master findings made additional judicial office fact, continuously supplemental findings Septem- maintains, furthers, if not the belief 9, 1997, ber 1997. On October an independent judiciary protect exists to agreed Commission affirmed the government the citizen from both over- findings Master’s of fact. On Oc- reaching self-help. and individual 13, 1997, tober petitioned the Commission the Supreme appointment Court of a the instant ad- Review panel Tribunal and this was an- why vances six this reasons Review Tri- Thereafter, nounced on October bunal findings should reverse the on October the State Commission Special ultimately Master and the State on Judicial its findings Conduct filed Commission on Judicial and re- conclusions with this Review Tribunal ject the Commission’s recommendation seeking review of its recommendation that Specifically, that he be removed.3 Re- office, be removed from and spondent suggests that the evidence in- *8 further, that prohibited he be from holding sufficient to a showing establish of “will- judicial office in future. ful” violations of the constitution of the State of Texas and Texas Code of
III. DISCUSSION Conduct; Judicial the Commission In society, a civilized members of unconstitutionally incorrectly and inter- significant public preted are “willful” figures finding Texas law in its of whose authority necessarily against Respondent; violations reaches all Two, address-Respondent’s Reject Challenges; We No. Reasons to Constitutional Point of Three, points subpoints as of error with where neces- Error No. Judicial Behavior: Recom- Prohibited; sary. The issues are framed follows: Point mended versus and Point of Er- One, Four, Sufficiency Challenges Error No. of Evidence to ror No. to Removal Recom- Violations; Establish "Willful” Point of mendation. Error
533 Thoma, 485; at own. 873 S.W.2d ter as its of the Texas Code Judi- application 10(j). The Judges, un- Rule law cial to Conduct Tex.R.Rem’l/Ret. master, adopted overbreadth findings special constitutional for reasons of of the Commission, the Commission vagueness; are tantamount by the violations of the Texas Code of Ju- in a found a trial by fact filed findings of behavior, result, dicial for recommended Conduct we jury, a and as a trial without behavior; Thoma, that the prohibited rather than light. in that findings review such Respon- findings violate Commission’s in this case The record 873 at 485. S.W.2d right speech to freedom of and ex- dent’s on Judi- that the State Commission shows and, that the recommendation pression; Ob- cial overruled Conduct inappropriate. removal is of Fact filed with jections Findings 7, 1997, on October the Commission A. Standards Procedural Fact Findings adopted and affirmed proceedings conduct Master, including Spe- of the constitu in accordance brought Sep- letter supplemental cial Master’s tion of the State of Texas established 23,1997, entirety. in their tember for the removal or retirement rules case record the instant The extensive regulato judges, are neither criminal nor Consequent record. reporter’s includes Their ry, rather are civil nature. but findings of adopted ly, the Commission’s necessarily punish, but to purpose is factual legal fact are reviewable judi dignity honor of the maintain the them support evidence to sufficiency of the and to ciary of the entire State of Texas in review applied same standards justice uphold the administration of for the sufficiency of the and factual ing legal of all re Tho benefit its citizens. See In findings in a civil supporting evidence (Tex.Rev. ma, 873 S.W.2d 484-85 Id., jury. by a trial court or either Trib.1994). the Ex upon The burden was Trust v. Texas Ctr. Bank & (citing Cullen aminer for the State Commission on Judi Bank, 116, 121 841 S.W.2d Commerce establish, Spe cial Conduct to before 1992, writ (Tex.App. [14th Dist.] Master, allegations against Judge cial — Houston denied); v. Acceptance, Inc. Green Tree preponder Barr civil by the standard of Holmes, (Tex.App.— 461 803 S.W.2d Thoma, 873 S.W.2d ance evidence. denied)). Fort writ Worth Brown, 485; In at see also re 512 S.W.2d (Tex.1974). regard, In that 319-20 re insufficiency point A factual the extent that do not conflict with examine all of the evidence quires us to the Rules For Removal ORRetiRement of finding ques determining whether the Judges, procedure, civil rules both great weight against tion is so appellate, applicable. trial and Tex.R. evidence as to be preponderance (1993), Judges, 823 Tex.B.J. Rem’l/Ret. Id., (citing generally unjust. manifestly 12(e) 10(d), Moreover, (g). dur Rules Estate, 662, 244 Tex. King’s re any ing hearing the course of conducted (1951)). civil appeals As S.W.2d proceedings, of formal the furtherance matters, cannot sub this Review Tribunal or the special before a master whether findings for those of the Com its stitute Commission, only evidence is to be legal competent If there is sufficient 485; mission. Thoma, received.4 873 S.W.2d support 10(e). probative force evidence of Judges, Rule Ab Tex.R.Rem’l/Ret. recommendation, they must findings and objections to the re sent statement Id., v. Am *9 master, (citing Oechsner be sustained. port special of the Commission N.A., Texas, 136 840 S.W.2d special mas- eritrust may adopt findings proper preserva- requirements only legal requirement other 4. Inherent received, procedural stan- Tribunal. is the review a Review evidence be tion of error for requiring timely objections as well as dard denied)). (Tex.App. Paso writ relying upon segment a of the definition of — El It province is not within the of this Review “willful” as contained in Thoma. We dis- Tribunal to interfere with the Commis agree. sion’s resolution of conflicts the evidence “willful,” The term in the con or pass weight on the credibility or text of removal of members of the Texas the witnesses’ testimony. Where there is misconduct, judiciary for has been defined conflicting evidence, the findings of the as follows: Commission on such matters will be re “willful,” term applied [T]he in Tex. garded as conclusive. Id. Const, V, § l-a(6)A, art. is the improper In considering a “no evidence” le or wrongful use of power of his gal insufficiency point, only we consider office by judge acting a intentionally, or the evidence that tends support gross indifference to his conduct. findings Commission’s and disregard all Thoma, 873 S.W.2d 489-90. As noted evidence and inferences contrary. to the Thoma, willfulness involves more than Id., Alviar, (citing Garza v. 395 S.W.2d an error of judgment or a mere lack of (Tex.1965)). If there is more than a diligence. By way of exposition, further scintilla of support evidence to ques the Thoma Review additionally Tribunal finding, tioned the “no point evidence” noted that necessarily “willfulness” encom-
fails.5 Id. at 486. passes involving conduct turpitude, moral office, dishonesty, corruption, misuse of B. Issues Presented for Review generally, bad faith whatever the motive. Sufficiency 1. of the Evidence to Es- A specific intent to powers use the tablish “Willful”Violations judicial office accomplish purpose a Judge Barr contends that the State which knew or should have Commission on Judicial improper- Conduct known beyond legitimate exercise ly found “willfully” that he violated the of his authority may in and of itself consti- provisions of the Texas Code of Judicial tute bad faith. Id. A judge acts intention- “off-color,” Conduct because his lewd and ally, intent, or with when the act is done sexually explicit remarks cannot be “will- objective with the conscious of causing the ful” because were not made in bad acting result or of in the manner defined in faith but rather were made a context pertinent rule of conduct. See In re applicable standards; and, absent that his Schenck, Conduct 318 Or. 870 P.2d relating actions to the issuance to his or- (1994). 185, 189 Gross indifference is in- “willful,” ders cannot be as that term is difference that flagrant, is shameful and legally pertains defined and as it beyond all measure and allowance. It is Constitution, Texas since his actions were conduct, such particularly by members of lawful.6 the judiciary, that is not to be A excused. Respondent maintains that the Special subject discipline for “willful” erred, Commission, Master as did the any judicial violation of canon of conduct Respondent, citing authority, persuasive no Respondent, citing Eichelberger v. Eichelber otherwise, (Tex.1979), suggests ger, that this S.W.2d 395 Review Tribu- contends that his actions could not be "willful” nal should since the recognized abandon the standards power has the inherent to issue or legal of review of sufficiency and factual necessary legal ders and take action in order adopt the evidence and "just instead responsibilities imposed to fulfill proper” determining standard in the merits of upon judge by the Constitutions of the Unit removal from office. We ed States and the State of Texas. Additional adopt decline invitation to such ly, Respondent any maintains that orders standard, vague cloudy electing instead legal, which he issued were hence not viola- jurists higher, to hold Texas to a more tive of the Texas Code of Judicial Conduct as defined, uniform standard. a matter of law.
535 Jeffrey al., in See M. Shaman long engage as she or he intends to et (2d ed.1995). disciplined, Ethics, conduct for she or he is 10.28 and Conduct in- specific whether or not she or he has reasons, this Re For the above tent to violate the canon. See In re Flana- to maintain the view Tribunal has chosen (1997). gan, 240 Conn. A.2d 865 690 by complainants various anonymity of the a) Sexually Offensive Comments initials, despite the referring only to their and Gestures Judge Barr charges against fact that the specific We must note that the matters privacy of public have become and the they before this Review Tribunal as relate complainants of the has been shat each Judge sexually Barr’s offensive com- Charges judicial misconduct are tered. gestures ments and are not whether his in for ordinarily when found made constituted behavior “sexual harassment” brought by Texas Ju proceedings mal Likewise, as such. we do not address dicial The Texas Conduct Commission. ges- whether Barr’s comments and followed con Judicial Conduct Commission tures were un- expressions inadvertent ventional and used the full names practice juvenile prejudices conscious or the result complainants of each of the its notice of of an ingrained pattern speech. We ultimately in proceedings, formal its hesitation, acknowledge, without that while future, petition removal. we all legal forms of behavior that cross the disciplinary urge involving cases threshold of sexual harassment would con- through of the office sexual abuse judicial misconduct, many stitute forms of harassment, or other activities serve interpersonal offensive behavior degrade to humiliate or those with whom a would otherwise violate the Texas Code of contact, preserve into should comes may Judicial Conduct legal not meet the anonymity alleged of the victim. The definition of sexual harassment. Nonethe- purpose practice protect behind that is to less, while we address the issues of wheth- report privacy encourage the victim’s er Judge Barr’s lewd offensive com- Seaman, ing of such offenses. See gestures ments and violated the Texas A.2d at 110. Code of Judicial we note that the charges against of misconduct him do Many findings of the which form equate to a form of sexual harassment. general background to the events that
Gender in general, bias and sexual subject complaint against are the particular, harassment personally is of Respondent are not controverted nor ma fensive, invasive, extraordinarily psycho in terially disputed.7 record logically damaging, deeply embarrass establishes, stant case ing to the intended victim. See In the concedes, following finding Spe Seaman, Matter 133 N. A.2d J. ultimately cial Master and the Commis (1993). insulting, belittling, It is sion: inappropriate exchange in an between Throughout Judge Barr’s tenure on the attorney and is to be con bench, periodically has addressed the he simple demned for the reason that it is Attorneys District female Assistant wrong. Sexual harassment in adminis “babes.” court as justice harmful tration of and offensive society, In a it is irrelevant permissive a lack of conduct which indicates victim, and, judge’s speech conduct or is no respect judge’s for the whether extension, “ordinary per- from that of the respect reasonable a lack of for different son,” may large. improper the citizens of the of Texas at since conduct which State acknowledges apologized Respondent openly inap- he has He further notes that propriateness "regardless whether of the contents of those matters women involved gestures. were offended” his remarks. made basis of comments *11 536 et, al„ overlooked when committed by the ordi M. Shaman Judiсial Conduct (2d ed.1995).
nary person, § attorney, even an 3.09 Ethics, cannot be by overlooked when committed a member case, Judge the instant Barr does not judiciary. Texas See Cincinnati finding contest factual nor finding Heitzler, 214, Bar Ass’n v. 32 Ohio St.2d willfulness, that throughout his tenure (1972), denied, 291 N.E.2d 482 cert. bench, on the which dates to he has 411 U.S. 36 S.Ct. L.Ed.2d 687 periodically addressed the female Assis (1973). By seeking accepting the re Attorneys tant District in his court as sponsibilities of the office judge, regard “babes.” While we need not define “babe” office, less the level of a judge under sense,9 its derogatory most and sexist takes to conduct herself or himself both minimum, we note that at a it connotes officially personally in accordance with young girl a naive and inexperi and/or highest standards that the citizens of person. enced Merriam Webster’s Colle Texas can expect. See id. giate Dictionary (10th ed.1997). Given above, we Judge find Barr’s sexist 12, 1991, On June the Supreme Court of in addressing manner female Assistant Texas entered an creating order a task Attorneys District in his court as “babes” force to study gender bias in the Texas inappropriate to be it undermines because legal system. The formation of the Gen- an attorney’s by role in the process der Bias Task Force of prompt- Texas was indicating that she is not to be taken seri by ed increasing national concern over the ously jeopardizes and thus proper ad courts, treatment of women in our nation’s justice by ministration of hindering the litigants both as legal professionals. from, attorney properly female represent Texas, GendeR Bias Task Force Final client, ing her in this the State of (1994). at 1 RepoRT, Women in the courts Texas. We find that Judge Barr’s admit in any capacity may find themselves sub- ted actions in addressing prosecu female jected inappropriate, overly familiar and tors as “babes” were willful conduct that demeaning address, forms of comments clearly inconsistent with the proper appearance, their clothing, their and their performance duties, of his cast dis bodies, sexist jokes, remarks and and un- credit upon judiciary the State welcome and physical verbal advances.8 Texas, as well as on the administration of (C.H. 15.04[1] Lefc- justice, V, and thus are In The violative Article Womes Law ed., Jeffrey 1988); l-a(6)A ourt # July Release Section of the Texas Constitution10 Supreme 8. The Court of Texas Gender Bias taken strides to abandon such references reported Task Force that two-thirds of the which were once tolerated and are female members of the State Bar of Texas demeaning clearly now considered offen reported discriminatory who behaviors re- sive. See Supreme Texas Cоurt Guidelines ported problems judges, primarily male Misc. Procedures, Gender-Neutral Courtroom inappropriate (Tex.1996). terms of forms of address. Docket No. 96-9276 reported One out of they three felt that they respect judges received less be- V, l-a(6)A provides per- 10.Article Section cause are women. Gender Bias Task part as follows: tinent at Texas, Report, Force of Final Any Justice or of the courts established only casually One need search the Internet Legisla- this Constitution or created through engines, utilizing its various provided search ture as in Section Article "babes,” Constitution, query to discover may, subject with conster this to the other pandemic hereof, offending nation the provisions use of the be removed from office for sexually explicit word in vile persistent its most promul- willful or violation of rules Yahoo!, Texas, Netfind, See Lycos, gated by Supreme sense. AOL Court of incom- Info- Seek, Hotbot, office, petence performing and V/ebCrawler. A sensitized the duties of the enlightened Texas has come to willful violation of the Code of Judicial Con- duct, derogatory realize that such forms of persistent address or willful or conduct that is unjust, seriously irrational and proper perfor- and has inconsistent with the (6)13 3B(3),11(4),12 and Canons party by for the virtue of official her Texas Code of Judicial Conduct. relationship court. with the The record in the instant case estab- Shortly party, after the Christmas *12 lishes, concedes, and Judge Barr the addi- January during a break in a crimi- tional findings Master and Respondent presid- nal trial over which ultimately the Commission: ed, Respondent yet motioned to another In November while presiding over S.R., Attorney, by Assistant District Ms. trial, a criminal Respondent was apr crooking finger his index as if he wanted proached by an Assistant District Attor- approach. Upon her to approaching, L.D., ney, Ms. to be allowed to return to her, just Respondent stated to “I wanted her office jury while the was deliberat- if you to see I could make come [reach ing. Respondent, in replying to her re- sexual orgasm] finger,” with one stated, quest, at, “You are so nice to look laughed. then leave, if you all I’ll have at all to look
afternoon swinging again, Barr, dicks.” Once we note Judge has inappropriateness In 1995 conceded the Respondent hosted a Christmas each of the party for his court above loathsome and wretched personnel. The par- comments, ty place including took at his willfulness of voic- Respondent’s residence. party, ing comments, At the Respondent such purportedly motioned to has victims, an apologized Assistant District to his Attorney, K.A., “regardless Ms. by crooking his index if finger he whether or not were by offended” his wanted her to approach. Upon ap- Judge remarks. Barr’s statements each proaching, Respondent her, stated to “I of the judicial above accounts confound just wanted to if you see I could make judicial reason and antithesis of come sexual orgasm] [reach with one discretion. greater Of concern is the fact finger.”14 The Assistant District Attor- that on each of the four occasions shown ney present at Respondent’s above, resi- the victims of his comments were dence for party by virtue of her appear women who had to in his courtroom official relationship with the court. or were otherwise under supervision. his At the same party Christmas Re- Comments made to Assistant District At- spondent approached an torneys Assistant Dis- during L.D. and S.R. were made trict Attorney, Ms. L.D. and asked her if judicial i.e., proceedings, course dur- leaving she was party. ing When Ms. course of criminal trial while replied L.D. negative, break, taking jury and while a was delib- stated, “Well, you then must your be on erating citizen’s freedom. It is not mate- period. always carry Women around rial to the issues raised the instant case purses their they’re peri- when Judge their whether disgusting Barr’s and re- od.” The Assistant District Attorney pulsive comments a misguided reflect present humor, insecurity, inability residence sense of an 11. "A yers Jud. Canon duct, manee of his upon tice- courteous to an official proceedings "A and others with whom the judge Tex. judiciary capacity....” shall Canon litigants, jurors, shall be duties or casts Const, subd. before the require or administration of B(4)(1993). art. subd. patient, order and decorum Tex.Code judge.” B(3)(1993). witnesses, l-a(6)A dignified Con- Jud. Tex.Code discredit deals in (1993). law- jus- 13. "A judicial bias or Tex.Code bias or tions with one B(6)(l 993). ster’s ed.1997). word or ous, but tasteless crude sexual reference with a double entendre. A "double entendre” is a judge prejudice, including duties, Collegiate prejudice expression capable Jud. shall usually risque. Conduct, comment above is an obvi- not, words or conduct based Dictionary upon Canon but not limited to of two performance Merriam Web- ... interpreta- sex....” manifest subd. (10th acceptable represented by to relate on an basis with a local attorney, indi- Mr. sex, opposite viduals of the or some other The case had been K.S.S. set for hear- maladjustment. It is not material that we occasion, ings on more than one and on feel a sense of and appreciate sadness particular in point, date Mr. K.S.S. tragic consequences of lack of social court, appear did not but instead sent judicial graces, propriety re- attempt one of his associates to to reset only straint. Barr’s conduct not the ease. After a discussion at dignity, public’s diminishes his but also the bench, the associate related a remark respect for the State court, made Mr. K.S.S. about the Texas as a whole. in Judge This flaw replied, from the *13 Barr’s is temperament inconsistent bench, go can “[Mr. K.S.S.] screw him- jurist with service as a in the State of ...” self. comment was Texas. quoted appearing an article in the Lawyer. Texas Judge
We find that Barr’s actions shown above constituted intentional and willful above, reviewing the Special Mas- conduct, as admitted. The actions of found, adopted ter and the Commission Barr, Judge together, taken were violative findings, Respondent such violated (6) 3B(3),(4), of Canons and of the Texas 3B(3) (4). earlier, Canons and noted As Code of in- Judicial were 3B(3) (4) provided pertinent Canons and proper performance consistent with the of part as follows: duties, upon his cast discredit Adjudicative Responsibilities. B. judiciary of the State of Texas as well as justice on the administration of and thus
are likewise violative of Article Section (3) A shall judge require order and de- l-a(6)A of the Texas Constitution. corum in before proceedings judge. found, Finally, Master (4) judge patient, A shall be dignified ultimately adopted and the Commission and litigants, jurors, courteous to wit- following findings: two nesses, lawyers with and others whom In January during the trial of a deals in judge capaci- an official criminal an Assistant District At- ty.... S.R., torney, questioned Ms. a witness asking any whether he had seen evi-
dence of being capa- another individual recognize great pride We take ethnic, ble lying. Respondent cultural, of fabrication or acknowledging the racial objection sustained defense gender diversity among which is found question. Ms. S.R. then asked the wit- judiciary. members the Texas Given following question: your ness the “In diversity, proper administration of knowledge treatment of her and the justice personal imprint must allow for the you family, of her have and her life judges place on court facilities which you developed opinion as to her recognize oversee. While we that a being Respon- character for truthful.” judge require shall order and decorum in immediately dent asked counsel to ap- court, proceedings before the and shall be proach the bench at which time he patient, dignified and courteous to liti- leaned forward toward the Assistant witnesses, jurors, gants, lawyers and oth- stated, “I Attorney District can’t ers with whom the deals in an offi- you just I question. believe asked that capacity, cial we are ever mindful that coming feel like across the bench and judicial accountability require not does slapping you.” crap out of judges pre- be mere robots or be of preside cisely precisely had occasion to over with same character parties personal in which qualities case one of the same and attitudes. always judicia- intentionally, There by judge acting must be room the office Texas, ry gross with indifference to conduct. State which serves a pluralistic society, in judi- for differences Thoma, 873 S.W.2d 489-90. Since cial style. There must be room always underlying Barr has admitted the the colorful as the well more conduct, we need determine whether judge. style conventional Differences intentionally, he intent. acted or with Re- personality do not sug- of themselves effectively spondent has admitted that the gest misconduct. To the end that a court- acts, i.e., comments, spoken were truly justice room may be a temple objective attempting conscious personal not the domain of the woman or rebuke District Attorney. happens
man who presiding, any to be “willful” susceptible discipline for vio- style always 3B(3) (4) differences must result in lations of Canons justice according administered to law and long instant case as he intended to must inbe accord with minimum standards he engage in conduct for which is disci- Ross, propriety. See In the Matter plined, spe- or not he whether formed (Me.1981). 428 A.2d Canons cific intent violate those canons. See In 3B(3) (4) Texas Code re A.2d Flanagan, 690 at 865. *14 Conduct seek to set minimum those stan- the judiciary Members of have been dis- Barr Judge
dards. has short. fallen ciplined engaging in for discourteous con- attorneys. duct toward The discourteous circumstances, In each the final of two be categorized, analytic conduct for may underlying concedes the facts (1) (2) purposes, primarily impatient, as which form the complaint. basis of this (4) (3) vindictive, undignified, and sarcas- Moreover, review, Respondent specifi- on JeffRey al., tic. M. Shaman et cally regrets that he the language *15 challenge dence fails as to all of the above by a possessed tasteless flaw member of findings complaint and his overruled. judiciary of Judge the the State of Texas. coupled flaw Furthermore, Barr’s intensifies when we examined all 15, 1994, September the fact that on he the in whether the determining evidence openly admitted to the State Commission questioned findings of as to Re- willfulness Conduct to his use of profane, Judicial spondent’s gestures sexual comments and vulgar, demeaning language and as a great are so against weight pre- and keeping means of or getting attention to mani- ponderance of the evidence as Commission, in evidence, of certain individuals. The festly in unjust. par- Given noting that such language admissions, the bench ticular we find that there is engender respect judiciary for the sufficient, does abundantly competent evidence justice, the administration of privately probative support force to Commis- Judge use profane warned Barr that his sion’s to each We findings allegation. appropriate vulgar words was not sufficiency overrule factual open in court. bench claim. extraordinarily Judges have little inter b) Improper Exercise Process Judicial vile, insulting, in the use degrading, est One, public inter In Point of Error Re language, and sexist while No. judicial impartiality spondent in and is contends the evidence is dignity est Thus, factually in to legally the instant both and insufficient correspondingly high. support Findings, insult Judge right to and de Master’s Barr’s necessarily outweighed by ultimately Findings is the Commission’s mean "I don’t want We note in addition to the sexual release from confinement that 15. above, gestures only comments and discussed Re- big to be a asshole. I want to be small alleged attorneys to spondent is to have stated in that re- asshole.” conduct Deputy County for Harris Sheriffs Paul Ren- gard fully opinion. discussed more in this don, attempt Deputy’s their to secure after Const, willMly he violated Tex. power art. V, to issue orders and necessary take l-a(6)A (1998), and Tex.Code legal action in order fulfill to its Jud. Con- duct, 3B(4) 3B(3), 2A Canon result, Canons responsibilities, any as a orders 3B(8)(1993). Specifically, Respondent legal subject which he issued are and not contends that the judiciary has disciplinary inherent review.16 Respondent challenges bail], 16. legal quiring and factu- excessive and with Articles sufficiency 17.15, 24.24, al support of evidence to the fol- and 24.25 of the Texas Code of lowing findings: Procedure). Criminal 4.Judge Charge January Barr’s action on or about Item 1: $50,000 setting in Judge 1. witness bail in Barr’s January action on or about 17, 1996, Deputy connection with his ordering attachment of in that a Writ of Attach- Rendon, Paul was willful bring Deputy ment be issued conduct that violat- Paul Rendon Conduct, ed the Code of before his Court Canon under the circumstances ex- 3B(4), time, isting provides, pertinent part, which in "A case at the was Overturf judge patient, dignified shall be willful conduct and courteous clearly that was inconsistent litigants, jurors, lawyers duties, proper performance with the others with of his V, l-a(6)A capaci- whom deals in an and violated Article official Section of the ty....” Texas Constitution. 1, Charge Item Judge 2. 3: Barr’s January action on or about 17, 1996, Judge 1. 17, 1996, ordering January Barr's action on or about that a Writ of Attach- instructing Deputy bring ment be issued Paul Ren- Deputy Paul Rendon custody, having don be taken into before his Court without under the circumstances ex- personally isting time, legal in the reviewed the factual ade- case Overturf quacy "Subpoena” of the recitations in willful conduct that upon cast discredit and the Writ of or the Attachment issued to justice, secure administration of V, Deputy presence, l-a(6)A Rendon’s violated Article was willful con- Section duct Texas that was Constitution. inconsistent with the duties, proper performance Judge of his Barr’s action and violat- January on or about 17, 1996, l-a(6)A ed Article ordering Section that a of the Texas Writ of Attach- bring ment be Constitution. Deputy issued to Paul Rendon January before his Barr’s action on Court under the or about ex- circumstances 17, 1996, isting time, instructing Deputy Paul Ren- case at the Overturf custody, don be having willful taken into conduct that without violated the Code of Judi- 3B(4), personally legal cial reviewed the factual Canon ade- provides, pertinent quacy part, "Subpoena” “A recitations in the patient, dig- shall be nified, and and the Writ of litigants, Attachment issued to jurors, courteous to secure wit- nesses, Deputy presence, lawyers Rendon's was willful con- and others with whom the *16 judge public duct that upon judi- deals cast discredit capacity....” in an official the 1, ciary or Charge justice, Item the administration of V, l-a(6)A Judge 1. violated Article Barr’s action Section of the Tex- January on or about 17, 1996, $50,000 setting as Constitution. in a witness bail in Judge 3. January connection with Barr's action on or about Deputy his attachment of Rendon, 17, 1996, instructing Deputy Paul in willful Paul Ren- conduct that was custody, having inconsistent don be taken into proper perfor- with the without duties, V, personally mance of his legal reviewed the factual violated Article ade- l-a(6)A quacy Section "Subpoena” the of the recitations in Texas Constitution. the Judge 2. Barr’s and the January action on or about Writ of Attachment issued to secure 17, 1996, $50,000 setting in Deputy presence, a witness Rendon’s bail in was willful con- connection Deputy with his attachment of duct that violated the Code of Judicial Con- Rendon, duct, 2A, Paul was willful conduct that cast provides, pertinent Canon which in public upon discredit the part, judge or the ad- comply “A shall with the law....” V, justice, ministration of and violated Judge Article 4. January Barr’s action on or about l-a(6)A 17, 1996, Section of the Texas Constitution. instructing Deputy in Paul Ren- Judge 3. Barr’s action January on or about custody, don be taken having into without 17, 1996, $50,000 setting in a personally witness bail in legal reviewed the factual and ade- connection Deputy with his quacy attachment of "Subpoena” of the recitations in the Rendon, Paul was willful conduct that violat- and the Writ of Attachment issued to secure Conduct, 2A, ed the Code of Judicial Deputy presence, Canon Rendon’s was willful con- provides, pertinent which part, judge in "A duct that violated the Code of Judicial Con- duct, comply 3B(8), shall with (specifically, the law....” provides, perti- Canon which in 1, by failing comply to with Article part, judge Section 13 nent "A every shall accord to [prohibiting Texas Constitution person legal proceed- the re- who has a interest in a day. following Deputy the Rendon failed The facts instant found adopted by pursuant Master and the personally appear the to to the sub- Conduct, on es- State Commission Judicial day, That same poena, as directed.17 De- 1995, 2, tablish that on November Brenton 1995, 19, for the attorneys cember State Overturf, Ray was indicted for the offense agreement entered into an defense The aggravated robbery. matter was 17, January to resetting the case Overturf to the District assigned 337th Judicial 1996. record that while The establishes to Judge preside. Court where Barr was attorneys agreed resetting the 15, 1995, pretrial setting On a November case, Judge personal Barr no had for to be was established the case heard agreement to knowledge of reset. Be- Court De- the 337th Judicial District on 19, tween the dates of December 1995 and 5, 1995. a cember On December was not January evidence for subpoena defense was issued Harris produced, requested. County Deputy Sheriff Paul Rendon to 17, 1996, January Respondent called On in the 337th District appear Judicial Court At case heard. to be produce 1995 and to December Overturf sought approval hearing, defense counsel specified subpoena did photographs. and a corre- discovery of motion for signature of the Harris Coun- bear discovery requested, clerk, sponding order which ty deputy any District Clerk or of among things, previously copy A other judge magistrate. the sub- sought-after pur- were poena Deputy photographs which was furnished Rendon bench, right ing, person’s lawyer, Deputy was willful con- or that to be from according upon judi- to law.” heard duct cast discredit 1, Charge 4 justice, Item ciary administration Judge January on or about l-a(6)A 1. 17, Barr’s conduct Tex- violated Article Section stating Deputy Paul Rendon’s as Constitution. Aman, Stacey Mooring attorney, W. and Paul action, January Judge 3. Barr’s on or about that, asshole, big only want "I don’t to be I 18, 1996, excluding Deputy Paul Rendon’s ...,” be a willful want to small asshole Aman, being present attorney, Paul with from conduct that Conduct, the the Code of Judicial violated Deputy Judge when Barr Rendon addressed 3B(3), provides, "A Canon which bench, Deputy from the was willful con- judge require shall order decorum in duct violated Code of Judicial Con- judge.” proceedings before the duct, 3B(4), perti- provides, in Canon which Judge January Barr's conduct on or about dignified, judge patient, part, nent "A shall be 17, 1996, Deputy Paul stating Rendon’s witnesses, litigants, jurors, courteous Mooring attorneys, Stacey W. and Paul Aman lawyers others whom the that, asshple, big only don’t want “I to be I capacity....” deals official in an ...," want to be a small asshole was willful action, January Judge Barr’s on or about that violated the Cоde conduct 18, 1996, excluding Deputy Rendon’s attor- 3B(4), provides per- Canon Aman, ney, being present with Paul patient, part, digni- “A shall be tinent Deputy when Barr addressed Rendon fied, litigants, jurors, and courteous to wit- *17 bench, willful Deputy the the was con- from nesses, lawyers and others with whom duct violated the Code of Judicial Con- capacity....” an deals in official duct, 3B(8), perti- provides, in Canon 1, Charge 5 Item part, every nent to "A shall accord action, January Judge Barr’s on or about 1. 18, 1996, person legal proceed- has a interest in a who Deputy excluding Paul Rendon’s ing, person’s right lawyer, the or that to be Aman, being present attorney, with Paul from according to law.” heard Judge Barr Deputy Rendon when addressed bench, Deputy was from the willful con- had, Deputy Rendon testified that he 17. inconsistent with the duct that fact, in to the 337th District Court on called duties, proper performance violat- of his call” placed 19th and was "on December l-a(6)A of ed Article Section the Texas member, staff law enforcement Constitution. Special Deputy Phillips. James Sheriff’s action, Judge January about Barr’s on or however, Master, the evidence in 1996, found that excluding Paul Deputy Rendon’s Deputy Aman, support case did not Ren- being present instant attorney, with Paul Judge on this issue. Deputy don’s assertions Rendon when Barr addressed portedly custody to Deputy’s post and control of financial condition Deputy required Upon being Rendon. advised that witness bond. had photographs produced not been The record further that at ap- shows pursuant on December to a de- p.m. January 1:30 on proximately tecum, subpoena Judge fense duces Barr attorneys Stacey Mooring and Paul W. clerk, advised his court as well as his Rendon, Aman, Deputy both representing server, to
process
issue a
of attach-
writ
appeared
pur-
before
Rendon,
ment for Deputy
with a witness
pose
discussing
Deputy’s
confine-
bond for the law enforcement officer set at ment,
attachment,
the writ
and the wit-
$50,000.18 Neither the
nor
defendant
Judge
ness bond.
Barr advised counsel
requested
State ever
that the writ of at-
that he would not withdraw the writ and
Deputy
tachment be issued
release the
from confinement nor
nor that
witness
would he
lower
amount
the witness
Deputy
bond be set for
Rendon. More-
over,
Additionally,
bond.
Barr
Judge
advised
neither the State nor defense filed
counsel that
the writ of attachment and
application
an
for a writ of attachment or
being imposed
bond were
for the purpose
stating
other affidavit
Deputy
Rendon
of making
Deputy
an example of
Rendon
was a material witness
to move
about
out
to both
Harris County
Sheriffs De-
County,
of Harris
Texas. The Overturf
partment
City
and the
of Houston Policе
case was
reset
January
then
to
Department.
greater
Of
significance, how-
attachment,
The writ
pursuant
issued
ever,
were
comments
to
order,
Judge
signed by
Barr’s
if they
counsel that
would not contest the
individual who was not
County
the Harris
writ
Deputy
of attachment and
Rendon
District
It required
Clerk.
that Deputy
jail overnight,
remained in
he would with-
Rendon
appear
the 337th Judicial Court
draw the writ of attachment and release
17, 1996;
9:00
January
however,
a.m. on
jail
day.
him from
the following
On the
signed
the writ was not
until an hour
hand,
after
if
attorneys
other
decided to
he was to appear.
attachment,
The writ of attachment
contest
the writ
he would
refers to Deputy
immediately,
Rendon
set the
as the “defen-
case
or con-
Overturf
dant,”
tinue
writ
imposition
rather than a
and bond
witness. At approxi-
until January
1996. The
mately
conference
mid-morning
January 17, 1996,
Mooring
Aman concluded with
Deputy
court,
appeared
Rendon
escort-
Respondent callously telling counsel that
ed
Deputy
Sheriffs
A. Phillips,
James
Deputy
he
wanted
Rendon
“smell the
Respondent’s process
Although
server.
smells”
“feel
what it is like to
Judge Barr had not
or
any
reviewed made
jail,” that
didn’t
Deputy
he
want to fine
determination
legal
of the factual or
ade-
him in contempt,
Rendon or hold
“I
stating
quacy of either the
subpoena
writ of
asshole,
big
don’t want to be a
I want to be
attachment, Judge Barr then instructed
asshole,”
a small
and that his desire was to
Deputy
immediately
Rendon be
taken
“rub
department’s
[Deputy
Ren-
custody.
into
hearing,
No
formal or other-
in it
get
message
don’s] nose
wise,
why
was conducted to determine
across.”
Deputy Rendon was not in attendance on
19, 1995
December
subpoenaed,
establishes,
The record
good
why
found,
not produce
show
cause
he did
Master
Barr
would not
*18
requested
Moreover,
photographs.
no change his mind
the action
regarding
tak-
hearing
against Deputy Rendon,
was conducted to
en
determine the
that he knew
immediately
18. The
suggested
Respondent
record shows that
after
State
to
that the de-
subpoenaed
wrong person
ordered that a
ofwrit
attachment
fense had
to
Rendon,
Deputy
be
bring
requested photographs
issued for
bench
a
confer-
and that he
place
simply
ence took
between
the first law
enforcement officer
report.
counsel for both the
State.
defense and
The
named in the offense
$50,000
unreasonable,
judicial
high
personal
standards of
that
bond
Consequently,
that he
to hold a bond reduc-
a
but
refused
conduct. Id.
we note that
hearing
day
tion
as he wanted
same
truly
judge is
independent
one who is able
jail
Deputy Rendon to remain
until
rule
he
appropri-
to
as she or
determines
time he
following day at which
would cоn-
ate,
any
political
fear of
without
retaliation
reduction,
finally,
a bond
sider
that
disciplinary reprisals.
or
he
Judge Barr admitted that
had not re-
legal
mere
error
should
While
writs
regarding
the law
of attach-
searched
appellate
this
best
left
courts of
bonds,
accept
or
but
ment
witness
would
State,
than to the disciplinary pro
rather
consequences
conduct.
of his
cess,
mean
legal
that does not
error
above, Respondent
noted
As
contends
judicial
can never constitute
misconduct.
judiciary
power
that the
has inherent
to
Generally, there are
circumstances
three
necessary legal
orders and take
ac-
issue
may
legal
in which
error
be found violative
judicial
responsi-
tion
order to fulfill its
of one or
These
more
Canons.
bilities,
result, any
and as a
orders which
circumstances are:
legal
subject
he issued
and not
to
are
1)
error;
egregious
Thus,
legal
commission of
disciplinary review.
this
case
an issue of
im-
squarely presents
first
2)
a continuing pat-
commission of
Texas, i.e.,
under what cir-
pression
error; or,
tern
legal
by
error
may legal
cumstances
a
3)
which is
legal
commission of
error
finding
grounds
judi-
constitute
for a
founded on
faith.
bad
cial misconduct.
Quirk,
In re
see
(La. 1997);
545 spect judicial disciplinary We are ever of to proceedings, mindful the may specific powers a to legal fact decisions be intent use the made judicial office to a accomplish purpose where the is arguably law thereunder judge which the knew or should have ambiguous, unclear or and under those beyond legitimate known was exer- circumstances, judicial disciplinary pro judicial cise of authority constitutes “bad ceedings discouraged, are to be if not faith” as a matter of law. condemned, a frontal as attack on the in dependence the judiciary. of It is for In can the instant there be no that reason that we hold that a member judge doubt in- that a is vested with the judiciary may of Texas be found to power herent to issue orders and take l-a(6)A § violated Article necessary action in legal order to fulfill Texas by Constitution a legal ruling or judicial Likewise, responsibilities. there contrary action made to clear and deter can be the proper no doubt under mined law which circumstances, about there is no confu a writ of may attachment or question interpretation sion as to its be issued to secure the attendance of a where complained-of legal judicial proceeding. error witness at a Concerns however, egregious, part pattern made a raised of as to the manner in error, practice legal procedural devices were or of made in utilized or bad overt, Quirk, importantly, and more articulat- faith. See 705 at So.2d 177-78. ed motive in such extreme pursuing reme- long judicial rulings So are made in dies. faith, good an effort to follow the it,
law as the judge understands the usu The record that the establishes defense against safeguard judicial al error sought inspection case Overturf overreaching lies appropriate appellate of certain photographs. No motion for review. See JEFFREY M. al., discovery initially seeking was filed et Shaman (2d Ethics, 2.02 a sub- designated rather, photographs, but Conduct ed.1995). We further poena duces tecum was hold that with re- sought and issued However, judicial charge duct. against advising the time the ac her of the her or her taken, counsel, tions clearly illegal right were guilty pleas, were of her to to coerce existing example, under Sanchez, law. comply statutory For in In re to fail to record- 844, 78, Cal.Rptr. 9 Cal.3d keeping requirements. 109 512 In See also the Matter (1973), LaBelle, 350, 970, Supreme P.2d 302 the California N.Y.2d 79 N.Y.S.2d 582 (1992) judicial Court found it was judicial misconduct for a 591 it N.E.2d 1156 where was
judge to allow a
judge
repeatedly
bondsman to determine the
a
misconduct for
to
fail to
amount
required
to be fixed
recognizance
by
bail
on blank orders
order
bail as
given
judge.
plain
reading
bondsman
In In
of two
statutes
admitted to
illegal
judge
stipulation
Matter
Sardino v.
State Com’n on Judi
be
in his
286,
cial
N.Y.2d
King,
58
461 N.Y.S.2d
facts
In In
before
Commission.
re
229,
(1983),
(1991),
judicial
448
83
N.E.2d
was
it
409 Mass.
for a Harris Sheriffs entered evidence, was failure appear custodian of a witness for to and against was not the defense, conditional; by the was noted the is a testify, judgment never talked to witness, being wrong person the to citation issued to the the discretion, des- subpoenaed, and who nonetheless why court’s to show cause the The of the ignated purpose Id., as “material.” fined. art. witness should not be discovery for is to the court above, motion As the subpoena 24.07. noted State, during the before or order either fatally instant defective in the case trial, produce permit inspection to the signature that it did not the of the bear case, evidence, photographs in this the any County Harris District Clerk or of possession, are in question which the clerk, judge magistrate, or re- deputy custody any or the of its control of State or Id., by art. quired law. 24.07. County the agencies, including Harris a An the hand is “attachment” on other order of dis- Department. Sheriffs The under by writ issued a clerk a court time, the covery specify place shall seal, by any magistrate, or or the fore- manner of the making inspection. Tex. grand jury, any man of a criminal action (Vernon art. 39.14 Code Crim.Proc.Ann. commanding officer proceeding peace or a 1997). provided for the dis- Sanctions bring a body to take of witness and any discovery such order. obedience of a grand jury him the court or on before sought subpoena (cid:127)The defense instead a named, forthwith, day testify or to on be- De- Deputy duces for Rendon for tecum The half of or defendant. State 19, appear. Rendon to cember failed writ of attachment shall be dated hearing January pretrial At the 1996 issuing it. signed officially by the officer Overburf, party complained of for neither Id., a re- art. 24.11. When witness who appear Rendon’s to at the Decem- failure prosecution has county sides hearing; contrary, to ber 1995 duly ap- with a to subpoena been served sought appropriate defense counsel any action or pear testify criminal i.e., a procedural remedy, motion dis- for appear, to so the State proceeding fails of discov- covery corresponding order have an the defendant be entitled to shall did to have ery. defense not seek condi- attachment for such witness issued subpoenaed for the Janu- Deputy Rendon is upon showing tioned a such witness ary great- 1996 and of pre-trial hearing material and about to move out of is sought never to have the significance, er Id., 24.12, county. 24.14. Given that art. directly jailed.20 Deputy attached authorizes a an attachment “seizure” Texas, meaning the Fourth In the it axiomatic witness within the State of is subpoena may an individual Amendment to the United States Constitu- that a summon I, testify § in a and art. 9 of the Texas Constitu- a court to tion appear to before tion, a capias, like an warrant specified day. on a arrest criminal action Tex. (Vernon only upon art. of attachment should issue 24.01 writ Crim.Proc.Ann. Code 1997). justi- obey that the is showing If seizure a witness refuses Dawson, 41 may at the fined fied. See Ddc & subpoena, the witness Texas PRactice (1995). tes- court; § An affidavit or sworn the instant 27.45 discretion timony by reciting defendant what five hundred dollars. a fine to exceed subpoenaed Deputy Ren- We was contin defense must have note that the case Overturf agreement of again. obligation ued from December 1995 is no don There automatic knowledgе of Re parties without day appear subpoena under a continued, Deputy spondent. If a case State, Gentry a case See is reset. v. subpoena is obligation under the Rendon's 1988); see (Tex.Crim.App. S.W.2d 785-86 If the defense in terminated. Overturf Dix & 41 Texas 27.42 also Dawson, Practice obligate Deputy wished Rendon case (1995). January hearing, the appear at testify would witness to is a minimum re- the courtroom. There is no evidence *21 State, quirement. Hardin v. 471 S.W.2d Deputy requested presence the of Rendon (Tex.Crim.App.1971). which Any bail is the bench in the case. counsel at instant judge magistrate set the should be by a legal noted that We have error such as to se- reasonable amount grounds finding constitute for a judge may cure the attendance of the witness. if judicial of misconduct the commission of In the instant case the of attach- writ legal error is founded on bad faith. We ment, pursuant or- issued to have further found that the term “bad der, sloppy at writ was best. The was deter- faith” as used connection with the signed individual who was the engaged the had mination County District required Harris Clerk. It faith, unjudicial by acting conduct in bad that Deputy appear Rendon in the 337th specific powers entails a intent to use the Court at January 9:00 a.m. on pur- of office to accomplish 1996; however, signed the writ was not pose which knew or should have hour after until an he appear. was to The beyond legitimate known was exercise Deputy writ of attachment refers to Ren- judicial authority. of “defendant,” don as the rather a wit- than The instant as it relates Moreover, ness. Judge Barr admitted which Judge manner in Barr purportedly that prior taking to step depriving power, exercised inherent is with freedom, charged his citizen of individual he had elements of bad faith. The motive not researched the regarding law writs of Judge summarily Depu- Barr depriving attachment witness bonds. ty Rendon of his freedom to is clear: Judge Barr’s actions above “will- were law impress upon enforcement in Harris ful,” in that they intentionally, were done Texas, County, Depart- both its Sheriffs gross or with indifference to conduct. his City ment as well as the Police Houston clearly He intended to in conduct engage Department re- should be more for he disciplined, whether or not sponsive the trial to needs of criminal de- specific he had intent at the to time violate Deputy merely a fendants. Rendon was the Texas Code of Judicial Conduct. His pawn struggle in a between the court actions were done with the conscious ob- auxiliary the court’s own law enforcement jective causing the ultimate confinement agencies. It was an improper imposition of Deputy Paul legal Rendon that the judicial power harsh for a unre- reason shortcomings shameful, were flagrant, purpose lated to the the court. beyond allowance, all measure given his lack of knowledge admitted in the area sought Barr to Deputy have Ren- of writs attachment. His none- conduct motion, jailed don attached on his own clearly legal theless amounted to error. requi- without the benefit of affidavits or a showing
The Master found that before of materiality. site Respondent Rendon Deputy could leave to take wholly failed into account the defi- courtroom, documents, i.e., immediately after release the underlying his ciencies in confinement, Respondent from him subpoena called and attachment. defi- Those amplified to given the bench. record shows ciencies are the fact Deputy attorney and his approached the writ of attachment was issued bench, Respondent Respondent Deputy counsel own instructed motion. ordered away to step summarily the bench. When the without Rendon incarcerated stated, attorney Judge, hearing. “But I’m his law- of a A bond the benefit “witness” Respondent yer,” replied Deputy that the enforcement set in this law officer was lawyer $50,000, need a did not since was not amount of penal he even account- with then charged anything. Respondent ing for the fact that was officer Deputy’s attorney County, instructed leave resident of Harris Re- Texas. Deputy’s proper perfor- inconsistent spondent refused consider $50,- duties, ability post required mance of his and cast dis- financial bond, upon re- credit or the although adminis- justice, tration of all in violation of Deputy to release the if he Article quired l-a(6)A the Constitution Section give security upon such bail. unable Texas. the State of acknowledged the bond it, but to lower was unreasonable refused only We examined the evi requested, and instead threatened *22 tends the support dence that Commis attorneys a Deputy’s with continuation findings of in each the sion’s willfulness they intended to the writ and bond if in Item charges and listed paragraphs pursu- pursue rights Deputy afforded the disregarded and in and have all evidence ant to the United States and Texas Consti- applying the contrary. ferences to the in- attorneys tutions. The likewise were standard, evidence we find that above no by if did not Respondent formed that more than of evidence to there is a scintilla issue, the would be Deputy contest the in questioned findings the each of support following day. Respondent released the exception the paragraphs, the above with acknowledged the motive be- openly that in allegations Paragraph found incarcerating Rendon was not Deputy hind Four, Charge Respondent’s Item no a witness to to secure the attendance of challenge to all of evidence fails as example testify, but rather make an findings and complaint his overruled above County Rendon both the Harris Deputy except to each save and paragraph, Department and the Houston Sheriffs Four, Paragraph Charge 5 of Item which City Department. Police The incarcera- the evidence is le Although is sustained. openly penal Respon- tion was in nature. insufficient, hold that the gally we absence purpose motives to accomplish dent’s cause, could it of evidence did not nor be he knew or have known was should caused, reasonably to have calculated legitimate judi- beyond the exercise of recommendation, anof improper rendition authority cial all the clearer and made facts of case. Tex. given the the instant Deputy by conclusive his desire to have R.App.P. No. One 44.1.21 Point of Error and “feel Rendon to “smell the smells” overruled, except Respondent’s save and in jail,” what it is like to be that he did challenge finding that Commission’s Deputy him in want to fine Rendon or hold willfully Deputy Rendon’s at he excluded “I contempt, stating big want to be a don’t heard, torney present and being from asshole, asshole,” I be and want to a small which is sustained. depart- was that his desire to “rub the Furthermore, examined all we have get in it to [Deputy ment’s nose Rendon’s] determining whether the evidence mo- message across.” findings in each of the remain- questioned knowing tives and actions were furthered ing paragraphs charges listed Item and admission, had not his own he against weight great 1 are so the law writs of at- regarding researched as to preponderance of the evidence be or witness tachment bonds. evidence, unjust. manifestly Given we sufficient, abundantly Barr’s there is Accordingly, Judge we find that find conduct, probative force to competent as found Master evidence of ultimately by support findings as to Commission Commission’s State Conduct, remaining charges para- was conduct each of Judicial willful Conduct, except listed save and graphs violated the Code of Judicial Item Four, 3B(3), 3B(8), 2A, 3B(4), Paragraph Charge 5 of Item for Canons Tex.R.App.P. 81(b)(1). Supreme September previous 21. Effective from rule Court amended renumbered this 3B(3) which we have found no evidence. We Canons Code Jud. 3B(4)(1993).22 sufficiency overrule factual claim. case record instant shows on 22, 1997, April Rainey acquit- Daimon
c) Behavior Toward Those Whom by jury ted in the 337th Court of Judge Interacts a Judicial aggravated the offense of sexual assault. Capacity Respondent over the trial. Rai- presided Respondent next contends that ney adjacent was escorted to an holdover legally factually evidence is both immediately cell outside the courtroom. support insufficient to the Special Master’s Respondent Rainey, having ordered Findings, ultimately the Commission’s acquitted, custody. been released Findings that he willfully violated Tex. The fact Rainey’s ordered Const, l-a(6)A (1998), art. dispute. and Tex. release is not challenges legal April and factu- 1. 1997, Barr’s action on or about *23 sufficiency support al of evidence to the fol- attempting personally physically in and findings: lowing to Rainey enforce his order that Mr. Daimon 3, Charge immediately Item 1: custody, by be released from 22, Judge 1. April Barr’s actions about grasping Rainey’s on or Mr. the arm with intention 1997, loudly, angrily, in publicly insisting and freeing custody Deputies of him from the of Deputies that Phillips James David and Clin- Phillips Clingan, James and David was willful gan County Department violate Harris Sheriff clearly conduct was that inconsistent with the policy concerning the release of individuals in duties, proper performance of his and violat- custody Department, the of the was willful V, l-a(6)A ed of the Article Section Texas conduct that was inconsistent with the Constitution. duties, proper performance of and his violat- 22, Judge April 2. action on Barr’s or about V, l-a(6)A ed Article Section of the Texas 1997, attempting personally in physically and Constitution. Rainey to enforce order his that Mr. Daimon 22, Judge 2. April Barr’s actions on or about immediately custody, be released from 1997, loudly, angrily, publicly insisting in and grasping Rainey’s Mr. arm with the intention Deputies that Phillips James and David Clin- freeing custody Deputies of him from the of gan County Department violate Harris Sheriff Phillips and Clingan, James David was willful policy concerning the release of individuals in public upon conduct that cast discredit custody Department, of the was willful judiciary justice, or the administration and upon conduct cast that discredit V, l-a(6)A violated Article Section of the Tex- justice, or the administration and as Constitution. l-a(6)A violated Article Section of the Tex- 22, Judge April 3. Barr’s action on or about as Constitution. 1997, attempting personally physically and Judge 3. April Barr's actions on or about to Rainey enforce his order that Mr. Daimon loudly, angrily, publicly insisting and immediately custody, by be released from Deputies Phillips that gan James David and Clin- grasping Rainey’s arm Mr. with intention County Department violate Harris Sheriff freeing custody Deputies from him policy concerning the release of individuals in Phillips Clingan, James and David was willful custody Department, of the was willful conduct that violated the Code conduct violated the Code of Judicial Conduct, 3B(3), provides, Canon "A which Conduct, 3B(3), provides, Canon which "A judge require shall order decorum in and judge require shall order and decorum in рroceedings judge.” before proceedings judge.” before the Judge April Barr’s action on or about April Barr’s actions on or about attempting personally physically and loudly, angrily, publicly insisting Rainey to enforce order that Daimon his Mr. Deputies Phillips James David Clin- immediately custody, by released gan from County Department violate Harris Sheriff Rainey’s grasping policy concerning Mr. arm with the intention the release of individuals in freeing custody Deputies from him custody Department, was willful Phillips Clingan, James and David conduct was willful that violated the Code of Judicial 3B(4), conduct Conduct, per- that violated the Code of Judicial provides Canon which 3B(4), provides, part, judge patient, digni- tinent "A Canon shall be "A fied, patient, judge dignified, litigants, jurors, to shall be and courte- courteous wit- nesses, witnesses, litigants, jurors, lawyers, lawyers with ous to others whom the capacity....” deals in official others in an with whom deals offi- 3, Charge 2 capacity....” Item cial server, County process and within day question, ty Phillips, Harris
On face, in- Deputy Phillips approximately A. foot from his Sheriff’s James he was quired Deputy to ser- whether assigned process as his Rainey’s im- countermanding his order for Deputy Phillips comply to ver. refused testimony shows order, mediate release. The citing poli- oral Respondent’s not ex- that while voice was County Depart- the Harris cies of Sheriff’s loud, ceptionally enough it was loud prohibits immediate re- ment which in the area could people immediate directly lease of an individual from Deputy Phillips hear it. noted that Re- courtroom, to but rather directs officers angry, quiver- in a spondent speaking holding the individual a separate escort breaking, At this ing, high-pitched voice. of the build- area located basement on Rai- point, Respondent placed his hand ing. purportedly Individuals are released arm, it, ney’s right holding began Deputy from that location.23 Sheriffs Deputy him lead toward the elevator. Phillips judgment testified after the response, Rainey’s Phillips, in took hold acquittal, proceeded Rainey he to lead moment, Deputy arm. At that David left an elevator in order escort him across bailiff, returned Clingan, B. County Inmate the street Harris jury physically from the re- room Processing Center deprocessing Réspondent’s Rainey’s moved hand they passed main en- release. As Deputy testified that right Phillips arm. door, Rainey trance to the courtroom contempt to which Respondent threatened over to his and mother and walked fiancée would replied his bailiff *24 them Respondent ap- embraced both. contempt they to find them in since have if Rainey them and he proached asked going Rainey processed to take to be were family. like to Rai- would leave with his out. that he ney Deputy Phillips stated would. time, Respondent ap- that at the Bailiff,
testified Deputy Clingan, Court Sheriffs Deputy Phillips frustrated. fur- peared Respondent that he testified too advised that Rai- Respondent ther testified advised Rainey that could release due ney he was a and that he that free man County Department the Harris Sheriff’s take the with his could elevator leave inmates released policy that were not be him family. Deputy Phillips further told directly from the courtroom. He testified floor, if left the be either upset agitated that he he that would testimony during rearrested or detained. The the discussion. He further testified discussions, Depu- during the Respondent approached shows again shootings judicial 23. We note once fact that Re- notice of that the recent courthouse Counties, and, spondent issued an the release oral order for of in Tarrant and Dallas Rainey accepting judgment after the course, bombing building in of the federal acquittal dispute. is not in Neither is State, City. v. 921 S.W.2d Oklahoma Gibson Instead, validity what is of the oral order. (Tex.App. orig. proceed 747 Paso Williams, — El disputed is the conflict between ing) citing parte Ex 870 S.W.2d policy immediately re- order and the not to ref'd); (Tex.App. pet. Worth — Fort upon prisoner acquittal. We are not lease a State, 74, 75-76 McCulloch v. 740 S.W.2d conflict, consequently, asked to resolve that ref'd)(court (Tex.App. pet. Worth — Fort opinion, expressed we render no either may appeals judicial notice of facts take implied validity We do em- on the of either. notorious, known, easily as that are well however, proper phasize court- need for judicially in certainable even if not noticed security, particularly an room after individu- State, court); 674 S.W.2d the trial v. Lewis emotionally packed al’s such acquittal^ ref’d). (Tex.App. pet. — Dallas Perhaps charge aggravated sexual assault. upon recent violence innocent em visited practice might to remove and the better in, working ployees and innocent visitors parties the court- separate all interested can, buildings originate with and does setting and courtroom of all room sanitize the criminally victims of crimes accused and security is a emotions. Courthouse sudden take importance. issue of We alike. current utmost doors, grabbed Rainey fairly voice, telling Captain reached out and told loud go him that could he down the elevator he Doehring Deputies did not want Finally, with him. Deputy Clingan testi- Phillips Clingan or back in courtroom. his immediately grabbed fied that he Respon- contrast, Respondent contends that dent’s with right wrist his hand and suggests that he remained on evidence Rainey left, grabbеd and pulled his immediately jury the bench after the ver- them apart from one another. Rainey’s dict and while on ordered release Boswell, County Ms. Beth Harris Assis- bench; point at the time that tant Attorney, District testified that she jury jury was escorted to the room prosecutor styled: ease Deputy Clingan, Rainey was seated at n State v. Rainey. Texas Daimon After table; that at one other counsel’s least judgment acquittal, saw Respon- she County Harris District orders the dent and his “bailiffs” [Deputies Phillips immediate who release individuals Clingan] heading down the hall toward acquitted by jury been incarcerated but i.e., where standing, she was immediately County and that the Harris De- Sheriffs outside the door between the back hall and partment policies light are irrelevant Ms. courtroom. Boswell testified that order; legality very she quickly went inside the courtroom that Respondent’s during tone of voice situation, to distance herself from the dispute angry;” than was less “loud it knowing that did not her person- involve Rainey’s counsel was mistaken his ally. she Finally, noted that there very belief that client had the choice of definitely dispute awas the indi- between being permitted to follow or- viduals. der immediately and be or return released County Sergeant Harris Ricky Sheriffs Processing the Inmate Center at the Davis testified that he a telephone received County Department Harris Sheriffs as a call from Deputy Phillips asking that he deputies “favor” to the term and that come to the 337th Judicial District Court. “angrily,” describing Respondent’s arrival, He upon stated that the Deputies *25 speech inaccurate; during dispute is explained him judge to that the had or- that contrary testimony Deputy to dered directly the inmate’s release from Clingan Respondent grabbed Rainey, that the courtroom which against policy. was Respondent’s portrayal that that he Sergeant Davis further that they stated inaccurate; Rainey “grasped” is that Re- Rainey’s talked to attorney, explained to spondent, although recalling not asking him the problem, attorney to which the Deputy you my “are Phillips defying or- stated that he objections had no to the der,” deny it, saying doesn’t that he but procedure. Rainey himself that he stated shout; did that no there is evidence the policy understood and did not have a “shouting that was in a Respondent loud problem with it. Sergeant Davis noted voice;” angry finally, there that they attorney even offered the no testimony Respondent shouted opportunity go they with them when a loud in spoke angry in voice and/or Rainey took over to make sure were County Harris conversing with Sheriffs process expediting the himget released. Deputy Doehring. Dan The attorney declined and that he stated Sergeant trusted them matter. 3B of the Code of Canon Texas Captain Davis testified once Dan provides part Judicial in pertinent Conduct courtroom, Doehring came as sum- as follows: moned, that he remained outside while Captain Doehring Respondent’s was in Adjudicative Responsibilities. B. outside, He stated chambers. that while Respondent through he could hear closed
552
(3) de- as we have judge require A shall order and of Judicial Conduct and defined in proceedings corum before the “proceedings” above. Tex.Code Jud. Con- 3B(3)(1993).
judge. Canon duct, 3B(3)(1993). Canon Conduct, Tex.Code Jud. We turn next to above, is in con- As noted the evidence bench, in particular, conduct off the his respects. particular, in various In flict words and conduct toward his law enforce evidence is conflict as to whether staff and their ment members insistence dispute question between depart following on internal sheriffs members and his law enforcement staff policy ment of a lawful court violation during proceedings, required occurred Texas, patient, In a judge order. shall be 3B(3) of the Texas Code Canon jurors, litigants, dignified and courteous to language Conduct. The clear Judicial witnesses, lawyers others with whom 3B(3) during distinguishes conduct Canon capacity, deals an official proceedings other conduct. While lawyers, require conduct of should similar guidance no this we find in the case law of staff, others and of court officials and sub state, matter, any other state for that judge’s and control. ject direction precise language we hold that the of Can- 3B(4)(1993). Canon Tex.Code Jud. 3B(3), “proceedings,” on as it relates to judges can generally accepted It is place contemplates conduct which takes for being rude or discourteous disciplined court, open while the is on justice system personnel. toward other bench, fulfilling an function. adjudicative Qualifi v. Geiler Commission on In applying the definition cations, Cal.Rptr. 10 Cal.3d 110 above, as set we note “proceedings” forth 1 to court em (1973)(referring 515 P.2d is a that there conflict in evidence. Sur Broome, obscenities); with In re ployees that he prisingly, contends (1980)(using 245 Ga. S.E.2d in fact bench at the time derogatory language toward another record, order of release issued. The judge); Murtagh Maglio, v. 9 A.D.2d hand, is testimo replete on the other the ex (1960)(belittling N.Y.S.2d 900 various this ny as to the locations where injuries of a enforcement offi tent of law continued, started, is said to dispute cer). applying the Texas Code Judi above, and concluded. As further noted 3B(4) Conduct, Canon to the instant cial Tribunal its this Review cannot substitute situation, legality focus we not on the those of If findings for the Commission. illegality order release competent there is sufficient evidence assume, par rather Rainey, but as did *26 findings, to probative support force the ties, that order was valid. Thoma, must be sustained. Instead, of we focus on the conduct Re Moreover, at if there is con S.W.2d in law spondent, relation to his enforce case, evidence, find as in this the flicting members, in manner ment staff his such mat ings Special on Master personally in at language choice of Commission, ters, adopted will as the outside the tempting to enforce his order in In the regarded as conclusive. Id. be courtroom. case, Special found that stant the Master Texas, recognizing judge as In that in a already “had left the bench Respondent patient, dignified was to the court be and courteous to Deputy Phillips returning shall room, hold whom placing Rainey judge after those with the deals Mr. capacity, con we are not unmindful of Consequently, cell.” we find as official over clusive, finding judges merely fact that are human.' the factual the Master’s Certainly, pressures was course of the occasioned dispute that the not in the of nature as envi both the volume and the proceedings judge, before the 3B(3) business, well administrative the Texas Code as as the by Canon of sioned go along anarchy. frustrations that busi- It is that conduct reason that ness which comes a trial part judge before court on of a that from departs of onmay established, the State Texas occasion cause recognized, otherwise and ac- patient judge even most to use intem- procedures for the cepted enforcement of language perate tempted to resort be and judgments, orders constitutes lawless “self-help” to in the enforcement of court’s personal conduct which advances a brand orders, personnel court to when refuse justice judge a law becomes Ross, comply with such See orders. unto herself or himself. We find such A.2d at use of intemperate 866. While the judicial to lawless conduct be as threaten- circumstances, under language, certain is concept government as is ing to condoned, though understandable we judicial independence. loss of Id. We against judge’s caution retreat from her clearly, absolutely, unequivocally, and adjudicative pur- or his responsibilities unanimously self-help condemn use of intervention, personal “self-help,” suit of personal part or other intervention on the judicial the enforcement of orders. judicial of a an effort to enforce a judicial order when remedies established case, In the instant there can no available. We also hold pa- doubt that was less than department’s policy, sheriffs however tient and courteous Deputies Phillips to be, may “reasonable” it allowed cannot be Clingan, two law enforcement officers to override the law or lawful order. court assigned to his subject court and thus to However, his direction and control. The evidence in the instant demon- case carefully reviewing record, we note an early attempt part strates intemperate was, language judi- personally enforce vile, no obscene or language abusive however, cial order. We note that Re- Nonetheless, used. we note with caution spondent attempt his brief at abandoned language danger- comes reason, such self-help, for whatever ously degrading close to and diminishing judicial Al- proper retreated to his role. law, himself, the State though the order release prisoner particular Texas. Of concern is the fact lawful was a order that should have been that Respondent’s dispute and obeyed, we do not focus on whether the of such a nature possibly convey policy County the Harris De- Sheriffs earshot, jus- those individuals within partment pro- runs afoul constitutional failing tice is proper and its administration just tections afforded who have individuals only through personal achievable Instead, acquitted been of a crime. we intervention self-help judges them- properly focus on whether established selves. procedures recognized for the enforcement aspect Respon-
We turn next to the pur- of a order properly have been attempt self-help dent’s in the enforce- we sued. this find the evidence Rainey ment of his order that be released lacking. custody upon being acquitted ag- only We examined the evidence gravated sexual assault. support tends to the Commission’s *27 3, 1, findings Charge of in above, willfulness Item
As indepen noted Four, through Paragraphs One and Item dynamic judiciary dent and is critical if the 3, 2, Charge through Paragraphs One rights protected. of are An citizens to Four, disregarded and have all evidence infringement independence on the the of contrary. apply- and to the is an inferences In immediate threat to the concept government ing the above no evidence standard we find fundamental of under Ross, of evi- law. 428 A.2d at true that there is more than scintilla 860. Absent a judicial questioned findings in accountability, support sense of conduct dence to unfettered, 3, One, Two, 1, that Charge Paragraphs remains leads to Item Four, 3, 2, Charge requiring publication and Para- which mandate and Item One, Two, Respondent’s report, and Four. of its annual that the Texas graphs Code as to challenge prohibited no evidence fails the above of sets forth Judicial Conduct findings complaint vague and overruled to cоntain and his actions which indefinite Respondent’s extent. that Finding that he phrases; has been denied his occur complained-of during actions did not First to freedom right Amendment of took proceedings, place court but rather speech expression; his removal proceedings courtroom con- after had voters, from office would disenfranchise cluded, hallway elevator lob- given and/or the constitutional scheme under chambers, by, Respondent’s we sustain elected; judges are that the appli- no challenge only evidence cation of the Texas Code of Judicial Con- 3, questioned findings as to Item him pertinent duct and law as to is uncon- 1, Three, 3, and Item Charge Paragraph stitutional for reasons of overbreadth and Charge Paragraph Three. and, vagueness; the State Commis- unconstitutionally sion on Conduct Judicial Furthermore, we have examined all of incorrectly interpreted state law. determining the evidence whether the remaining questioned findings Item above, As to extent that noted against 1 and 2 Charges great are so do not conflict with the Rules FORRemoval weight preponderance of the evidence Judges, the civil rules of ORRetirement of unjust. manifestly to be Given the as trial procedure, appellate, both evidence, we find there is insufficient Judges, applicable. Tex.R.Rem’l/Ret. to competent probative evidence of force 12(e) (1993), 10(d), Rules Tex.B.J. to support findings Commission’s rules (g). established of Consistent One, Two, Charge Paragraphs Item procedure, Respondent, having after been Four, Charge Para- and Item of pendency served with notice for- One, Two, Four. graphs We sustain him, proceedings against required mal in that regard. contentions file, file original and did verified Respondent’s Point of Error No. One is 83; answer. Tex. Tex.R.Civ.P. overruled, portion except 10(b). save and Judges, Rule addi- R.Rem’l/Ret'. point of “Be- error which addressed tion, hearing once a been conducted has havior Toward Those with Whom a master, special as in the instant in a Capacity,” Interacts which is report special and the master has legal- evidence Although sustained. Commission, the been filed -with the Re- factually ly regard, insufficient this objec- spondent may file a statement that the we hold absence evidence did report. tions to such Tex.R.Rem’l/Ret. cause, nor it calcu- reasonably could be 10(i). Judges, Rule This Statement Ob- caused, of an lated to rendition Master, jections Report Special anal- recommendation, given facts improper answer, ogous original may set forth to an Tex.R.App.P. of the instant case. 44.1.24 all to the all objections report and reasons in opposition findings as sufficient Challenges 2. Constitutional grounds for removal or retirement. Id. answer, Respondent, very original for the first The well as State- review, Objections Report ment time on has advanced various con bar, Master, arguments. Specifically, may Re contain matters de- stitutional fense, avoidance, as in the case con- asserts that State Commis spondent protections has the violations sion on Judicial Conduct failed stitutional and/or provisions provisions. of constitutional comply with constitutional Tex.R.App.P. 1, 1997, 81(b)(1). September Supreme previous 24. Effective *28 amended and renumbered this rule Court
555 Two, Bar Journal Respondent Point of Error No. lished the Texas was the Report publish contends that the of the 1993 that was application Texas Commission review, May Respondent Code of Judicial is uncon- ed in 1994. On Conduct law question stitutional for reasons of overbreadth and does not whether State Com vagueness. complied mission on has Specifically, Respondent Judicial Conduct maintains in all statutory provisions that the Texas Code of Judicial other vagueness However, respects. Respondent Conduct is void for because ac- has failed n tocite proper any authority support tions that are inconsistent with the his asser performance authority in judge’s support of a duties and con- tions. Failure to cite duct that upon point appeal cast discredit a of error on waives the D.W., justice, complaint. or the administration of In the Matter 933 definition, by 353, vague (Tex.App contain and indefinite S.W.2d 357 . —Beaumont phrases deny person 1996, denied); Parkhill, would due v. writ Romero Respondent process additionally Inc., 522, law. Cooper, Smith & 881 S.W.2d 529 claims that the Commission failed to denied); make (Tex.App writ Paso . —El report required by its annual law. Baker, Corp. Owens-Corning Fiberglas v. (Tex.App S.W.2d . —Texar Title Chapter 33.005 the Texas Tex.R.App.P. writ); kana no see Government pertains judges Code 38.1(h).25 subject while Additionally, on State Commission Judicial Conduct. briefly discussed counsel before Chapter provides 33.005 as follows: Master, Special the record does not (a) Not later than December 1 of each Respondent ruling show that secured a on year, the shall commission submit to the subject the Special matter from Mas legislature report for the preceding ter, Commission, or later the on the issues 31.(b) year August fiscal ending The re- Therefore, immediately discussed above. (1) port must an explanation include: Respondent any complaint has waived on (2) commission; the role of the annual appeal. See Friendswood De Roberts v. statistical information and examples of (Tex. Co., velopment 886 S.W.2d proper judicial conduct; improper App. writ de [1st Dist.] (3) explanation — Houston сommission’s nied). above, set For the reasons forth we (4) processes; changes the commis- find that has failed to proper necessary sion considers its rules for ly result, preserve error and as issue applicable statutes constitutional submitted is before properly this Tri (c) provisions, commission The shall dis- Accordingly, bunal for Respon review. report governor, tribute the lieu- dent’s Two Point of Error No. is overruled governor, speaker tenant entirety. its house of representatives and shall cause report printed be the Texas We have reviewed record Journal, (d) Bar legislature shall in particular instant for matters appropriate for preparation funds bar, defense or as those mat avoidance report. and distribution of the might guaran ters relate to constitutional (Vernon’s 33.005 Tex. Gov’t Code Ann. tees, wholly and find that has Supp.1997). present any failed to such matters to ei Citing absolutely legal authority, Re- ther the no Master Commission for spondent proper adjudication. maintains State Com- Predicates com plaints preserved appeal mission on Judicial Conduct has faded to at the must motion, comply statutory trial court requisite provi- exception, with the level ob Tex.R.App. jection, report pub- sions because the that was or some other vehicle. last 1, 1997, Tex.R.App.P. September Supreme 74(f). 25. Effective previous Court amended and renumbered this rule *29 556 Products, preserve 33;26 Respondent
P. Far has failed to error PGP Gas Inc. v. iss, (Tex.1981). 559, 560 As this of denial of freedom of eomplaint 620 S.W.2d on applied an speech present action remove further failed to all and has office, from Respondent the Commis remaining complaints constitutional to the sion, Examiner, through its are restricted ultimately the Special Master or Commis- appeal on to the issues theories on adjudication preserva- proper sion Special which case was tried before the tion for as these review. Insofar issues to the presented Master and Commission evidence, unsupported by argument Conduct, on and the Tri Judicial Review they are appeal. Accordingly, on waived error, bunal, fundamental absent is Point of Error Respondent’s we overrule theory authorized to consider issue or entirety. No. Two in its that the trial was not before court. Gulf Int'l, Murphy, Consol. Inc. v. 658 S.W.2d 3. Judicial Behavior: Recommended (Tex.1983).
565, Respondent If a rais 566 Prohibited versus review, time es an issue for the first on no presented properly error has been Three, In Point of Error No. Review Tribunal. See Golden Nurs Villa Respondent, absolutely authority, no citing Home, Smith, ing Inc. v. 674 343 S.W.2d contends Commission on that State 1984,writ (Tex.App. [14th Dist.] Conduct, sustaining allega in — Houston Judicial n.r.e.). 'd ref 3, 1, 2, Charges in improp tions Item erly found violations of the Texas Code of arguments Even constitutional not as aspi Judicial Conduct for conduct is serted in the trial court are waived on rational, prohibited. than Specifi rather Peca, appeal. Osterberg v. 952 S.W.2d that a cally, contends 121, 1997, no (Tex.App. 124-26 Paso — El cannot be for violations of “rec disciplined Greene, writ), citing Dreyer v. 871 S.W.2d ommended” behavior. 697, (Tex.1993); Employees 698 Walker v. Texas, 796, 753 Sys. Retirement S.W.2d above, As the State Commission noted 1988, denied); 798 (Tex.App. writ — Austin that Respon- on found Judicial Conduct also, Randle, Armstrong see v. 881 S.W.2d 17, 1996, January dent’s action on or about 1994, (Tex.App. writ 58 — Texarkana $50,000 in setting bail in witness connec- denied). review, among oth Our role on Deputy Paul tion his attachment ers, is to determine whether the Rendon, conduct that willful violated making on findings Master erred based Conduct, the Texas Code Judicial Canon it. Great Am. record before North appli- 2A.27 contends Stationers, Inc., Ball, v. 770 S.W.2d cation of 2A of the Code to this fact Canon dism’d); 634 error (Tex.App. — Dallas rules situation prohibited also, Progressive Ragsdale see v. Voters disagree. Code itself. We League, (Tex.App.— 790 S.W.2d Canon 2 the Texas Code of Judicial 1990), part and rev’d Dallas aff'd provides pertinent part as fol- Conduct part grounds, other on S.W.2d (Tex.1990). lows: 1, 1997, September Supreme Canon Commission likewise found 2A. The Effective day, amended and renumbered this rule same Court action that 52(a). previous Tex.R.App.P. Deputy instructing Paul Rendon be taken having custody, personally re- into without Conduct The State Commission Judicial legal adequacy viewed the factual and about action on or found January "Subpoena” and the Writ of recitations $50,000 setting a witness Deputy Attachment issued to secure Rendon’s connection with his attachment of bail in presence, willful conduct that like- was also Rendon, Deputy Paul willful conduct wise violated Canon 2A. Code of violated the Texas
557
Avoiding Impropriety
Ap-
2.
has held that
Supreme
Court
the statute
of
to
pearance
Impropriety in All of the
does not
the office of district
apply
Carrillo,
judge.
re
542
105
Judge’s Activities
See
S.W.2d
Brown,
(Tex.1976); In re
512
at
S.W.2d
judge
comply
A. A
shall
the law
with
317;
Laughlin,
re
265
and In
153 Tex.
should
act at all times
a
(1954);
Bates,
see,
but
In re
S.W.2d 805
promotes
manner that
confi-
public
(Tex.1977)(reserving
420
for
555 S.W.2d
impartial-
the integrity
dence
of
applicability
future consideration the
of the
ity
judiciary.
forgiveness statute
to
actions
removal
1-a).
Const,
brought
§
art.
under
V
Tex.
(1993)
2A
Canon
Conduct,
Tex.Code
Jud.
Likewise, majority
reject
a
of courts have
[emphasis added].
doctrine,
that a
forgiveness
holding
ed the
review, Respondent
On
suggests
immune from
for
judge
discipline
is not
since
2
“Avoiding Impro-
Canon
is titled
prior
merely
acts committed
term
priety
Appearance
Imрropriety
of
judge
reap
because the
was reelected or
Judge’s Activities,”
in All
of
and Canon
See,
pointed to
new term.
In re
e.g.,
3 is titled
of
“Performing the Duties
Judi-
Broccolino,
Diener and
268 Md.
304
Impartially
cial
Diligently,”
Office
(1973); In Greenberg,
A.2d
re
442 Pa.
of Respondent’s
the crux
ethical violations 411,
(1971);
5. Conclusion Conduct, any portions sion on Judicial findings conclusions, The Rules OR this any such FOR the Removal Judges provide may reject that subse Review the recom Tribunal Retirement hearings, quent to conclusion of all the mendation of the Commission that sane- underlying pur- obligated to consider If the recommendation imposed. tions be pro- judicial discipline, which is accepted, pose deserving are that sanctions govern- third only order tect not branch this Review Tribunal must censure, ment, sovereign re- which it applicable], or also the [if retirement but Id., 12(h). i.e., serves, A Review Tribu- citizens of the State of moval. Rule nal, Supreme Texas, judicial Court unacceptable convened the Texas behavior. reviewing judicial purpose pur- for the measure and adopting the above a recom- disciplinary action which includes imposition for the disci- pose office, of removal from mendation is to the fact that .we are not oblivious pline, specific recommendations of bound for the may a standard be set on the State Commission “ordinary” of this State citizens few although specific recommendations A who serves as a up can live to. citizen deference when based le- given great judiciary of the State of member A evidence. gally factually sufficient long- few who no among Texas is chosen vested with discretion Review Tribunal is “ordinary” of an citizen. enjoys er the role available, to fashion a sanction which reason, others, that a among It is for just proper. it finds of fairness judge who is a standard-bearer longer society in our is no impartiality Review Tribunal whole This Ms., Mrs., Mr., but rather addressed reasoning and lan heartedly adopts *33 Honor.” as “Your Supreme Court of guage advanced review, we find thаt the After careful Kneifl, Nebraska in In re the State of factually legally evidence is and sufficient purpose discussed the wherein that Court every paragraph, each and support judicial imposing for miscon of sanctions findings and of the and conclu- charge item duct: sions of the State Commission in cases of purpose of sanctions portions of except and those save in- judicial discipline preserve is to No. Point of Error One judicia- of tegrity independence counsel, from pertain preventing which public restore and reaffirm ry and to bench, pertain approaching jus- in the administration confidence a to “Behavior Toward Those with Whom must be discipline impose tice. The we Capacity.” Interacts a Judicial Judge recog- our designed publicly to announce which we As to all other contentions misconduct; it there has nition that been overruled, Respondent that has we find respondent to deter must be sufficient 3B(4) 3B(8) 2A, 3B(3), violated Canons conduct; again engaging such of Judicial Conduct of the Texas Code en- discourage it others from and must l-a(6)A V, § of the Constitution Article in the future. gaging in similar conduct Although we have of Texas. State Thus, pur- discipline a not for we to the Respondent’s challenge sustained retribution, but poses vengeance con- findings persistent as to Commission’s judges, our- public and all instruct harmless, duct, note that such error is we included, of the importance of the selves fact that the Texas Constitution given the free by judges a performed function in the instant case authorizes removal to reas- society. discipline We violation persistent either willful or judicial misconduct sure the Conduct. Texas Code of Judicial Tex. nor condoned. permitted neither l-a(6)A (1993) Const, [emphasis art. Kneifl, 217 Neb. In re 351 N.W.2d conduct to be have found his We added]. (1984). judi- dealing with When instances, defined, willful, some misconduct, or sanctions the sanction cial in bad faith. done determining the should fit the offense. Respon- portions those sustain impose for We level of sanction appropriate Error No. One which relate misconduct, Point of Tribunal is dent’s the Review judge’s argu- to “Behavior Toward with Whom or and temperament. Those When oral Judge Capacity,” Interacts a Judicial presented ment of this case preventing and to his ap- Tribunal, counsel from that particular conduct was al- proaching the bench. further We sustain harassment, luded to a charac- as sexual portion Point Er- Respondent terization that not disa- did ror No. Respon- Four which relates to However, opinion vow. the Tribunal’s conduct, persistent dent’s alleged. We question makes clear of whether any find error harmless. We overrule all legal thе conduct meets a definition Respondent’s remaining contentions on us, sexual harassment is not before for the review, and affirm the recommendation of simply behavior violates Texas Code the State Commission on Judicial Conduct (3), (4), Judicial Conduct Canons 3B be sanctioned. ac-We (6). cept Respondent, recommendation that Respondent’s willfulness in that conduct James L. Barr “Jim” be removed as specified complaint the times of the 337th Judicial District Court of the found the Commission to have occurred Texas, however, reject State of we displayed gross indifference to whether portion of the recommendation which women, any litigation whose would forever ban Respondent from hold- subject rulings, thought to his his behavior judicial ing office. intimidating.
offensive or behavior Such JAMES L. “JIM” BARR HEREBY IS by judge, sym- holder of a office
REMOVED AS THE JUDGE OF justice, bolic of honor any debases 337™ JUDICIAL DISTRICT courtroom proceeding where the conduct COURT OF THE STATE OF TEX- occurs. concedes that he also AS. vulgar made attorneys remarks to female during a social event outside of court. HOLMAN, Justice, concurring and *34 judge’s And whenever and wherever a dissenting. public demeanor includes instances of vul- I concur in the opinion Tribunal’s and gar complained behavior like that of in this judgment ordering Respondent’s removal only offending it tarnishes not judicial from office. I respectfully dissent judge, effectively it public casts discredit only to the extent opinion that and upon judiciary and administration judgment do not preclude Respon- also justice. of More two ago, than decades dent’s judicial eventual return to office. Supreme acknowledged the Texas Court The record in persuasively this case com- that disrespect judicial for office pels judgment only that not removes may and the in general be caused Respondent judicial from office now but by judge’s persistent intemper- willful or prohibits also him holding judicial from personal ate conduct whether on or off office in the future sitting and from as a Carrillo, bench. See Matter 542 S.W.2d on a court of assign- this State (Tex.1976). 105, 111 Const, 5, ment. See Tex. art. 1-a (6)(C). portrays Respondent Unrefuted evidence Respon- longer asserts that he no presiding open dent court on vulgar demeaning the occa- makes and remarks or specified sions complaint against gestures attorneys to female in court or at him, acting in a manner inconsis- social events out of court and that he will dignified tent with a decorous perfor- not act inway the future. Neverthe- judicial less, mance of duties he willfully during arguments oral this before lewd, Tribunal, made vulgar, demeaning re- Respondent conceded and the gestures marks attorneys. parties to female stipulated that the instant case is Plainly, style complaint conduct has been a not the first time a been has Respondent’s judicial hallmark of demean- filed at him for against the Commission using language proceeding. in March 10th The Examiner vulgar presiding while on open response An case that was its to both motions court. earlier filed 13, not Re- complaints Respon- oppose about March 1998 and did grounded upon profane spondent’s Supplement remarks Motion to the Rec- vulgar pro- dent’s However, court, oppose Examiner did appearing in his ended ord. bationers Rehearing for on the Respon- Respondent’s 1994 when the issued Motion Commission Warning ground supplementation dent a that “words of Private way not in no affected Review Tri- profanity vulgarity appropriate record open analysis regarding for the bench in court.” The evi- bunal’s and conclusion preservation argu- current constitutional dence case demonstrates Respondent warning. did not heed the ments. 3, 1998, Respondent filed his April On Accordingly, respectfully I submit that Rehearing First Amended Motion judgment the Tribunal’s in this case should for Remand make Conclusions Request only removal from order Respondent argued that Rule 16 Law. office, prohibit it also him should for the Removal or the Texas Rules in the holding judicial from office future Judges required the Com- Retirement as a sitting assignment findings to make of fact mission both on a this court of State. respect the is- conclusions of law with proceedings. fact WRIGHT, J., sues of and law joins in this concurrence Judg., On Rule 16. and dissent. Tex.R. Rem’l/Ret. April Review Tribunal issued response requesting a order ON OPINION REHEARING On May aforementioned motion. BARAJAS, J. Chief Response its to Re- Examiner filed grant L. Respondent We James “Jim” spondent’s First for Re- Amended Motion Rehearing Barr’s Motion for order make hearing Request for Remand to address constitutional concerns and other argued Conclusions Law. Examiner properly preserved matters for review. in fact that the Commission made Conclu- Law, failed to
sions History Rehearing for re- A. Procedural preserve the constitutional claims view, supplementing and that the record On March filed his *35 Respon- not cure transcript the did Rehearing Motion Review Tribu- for of the The Ex- preserve failure error. dent’s Findings Supple- nal’s and Motion to no for re- also asserted that basis aminer Rehearing ment the A for Record. Motion supported precedent mand existed since no (15) days the may be filed within fifteen “good it had not been shown cause” judgment date of the Review unless Tribu- Judg., Rule by Tex.R. required Rem’l/Ret. that judgment nal directs its such 12(f).1 motion will not be entertained. See Tex.R. (1993), 28, 1998, May Respondent filed his Judg., 56 Tex.B.J. On Rem’l/Ret. Response Respon- 14. to Examiner’s Respondent Reply Rule asserted he did First Amended Motion for Rehear- challenges, not waive the constitutional dent’s ing Request Remand to make Con- they Spe- before the properly were raised proceeding Respondent argued of Law. during cial Master March clusions opinion Lowery, In re Respondent sought supple- 1997. recent (Tex.Rev.Trib. 1998, pet.de- transcript of that S.W.2d 639 ment record with the 12(f) provides introduced before Master 1. Rule Review Tri- "[t]he bunal, may, good part in its discretion and for of the Commission and be filed as shown, permit addi- cause the introduction of in the court.” record evidence, may tional direct that the same nied) specifically right quest Argument Opportunity reserved the to a for Oral necessary. remand if Respondent also ar- to Brief Issues of Constitutional Dimen- sions). gued 2, 1998, Appellate Rules of Proce- September On Review dure, under which the Review Tribunal overruling issued an order Re- Tribunal operated, clearly allow a remand. See orally spondent’s requests to rebrief and to 48.3(a). As Tex.R.App.P. discussed argue before Commission and ordered original opinion, the civil proce- rules of parties regarding to brief the issues dure, appellate, applica- both trial and Supplemental Commission’s Conclu- ble, they to the extent that do not conflict Finally, sions of Law. on September with the Rules 1998, Respondent filed his brief and on FOR Removal OR RetiRE- Judges. Judg., 1, 1998, the filed October Commission its ment of Tex.R. Rem’l/Ret. 10(d)(1), 12(e), (g). July Rules On Reply Brief. 1998, the Review Tribunal took the follow-
ing action: Rehearing B. Discussion on 1. Granted Motion to Having properly supplemented the rec- Record;
Supplement the accurately ord to proceedings reflect the 2. Granted Motion for Special Master, before the Respondent, on Rehearing on the constitutional is- Rehearing, properly presents following sues, including question issues: applicability “Forgiveness
Doctrine;” objects 1. to the Commis- 3. Granted the unopposed Examiner’s Supplemental sion’s Conclusion of Record; Supplement Motion to Law No. One because the constitu- 4. Abated and remanded the matter to provisions give tional do not proper
the Commission for consideration of notice and fair warning to those to the constitutional issues raised Respon- whom are directed. record; supplemental objects dent further provi- that the 5. vague Ordered that no action sions contain be taken on and indefinite
the Respondent’s phrases Motion for that deny process Contin- due law; uance insofar as the matter had been abated and remanded to the In response to the Commission’s Commission; Supplemental Conclusions of Law
6. Ordered that the Commission’s con- Six, Nos. Five аnd Respondent con- clusions of law as to the constitution- Forgiveness tends that the Doctrine al issues supplemental raised in the applies; record, including the question of the Respondent objects Commis-
applicability of the “Forgiveness sion’s Supplemental Conclusion of Doctrine,” be filed with the Review Law No. Seven. main- on or Tribunal before October tains Texas Government fully so as to afford the Com- *36 requires Code the Commission to mission sufficient opportunity to publish report; its annual schedule and hear argument oral comply and otherwise with pro- due objects Respondent 4. to the Commis- cess. Supplemental sion’s Conclusion of Supplemental The Commission filed Eight, its Law No. complaining his 6,1998. Conclusions of Law on August process rights On due violat- been 27, 1998, August Respondent opportu- filed his Ob- ed since he was denied the jections Supplemental to the an nity argument Conclusions to make oral be- (along of Law with Response fore regarding the Commission Response Respondent’s Examiner’s Re- constitutional issues.
564 Conduct,
1.Challenges
of
“Vague
6.Code
Judicial
Canon
of
3B(8).2
and Overbroad”
vagueness and
While
overbreadth
In Point of Error No.
on
One
doctrines are generally used to challenge
Rehearing, Respondent objects to the
validity of
defining
laws
criminal con
Supplemental
Commission’s
Conclusion
duct,
prohibitions against
vagueness
Law No.
One because
constitutional
regulations
and overbreadth also extend to
provisions do not give proper notice and
affecting
government
conditions of
employ
fair warning
to those to whom
are
(Tex.
Lowery,
ment.
In re
565
(Tex.Rev.Trib. 1998,
regulated may
defines the conduct
un
be
Arguments
jurisdictions
in other
statutory provisions
constitutional and
for
2.Applicability
Forgiveness
discipline
judges
vague
were
Doctrine
consistently rejected
overbroad
been
In Point of Error No. Two on Rehear-
ground
on the
that the Code of Judicial
ing, Respondent contends that
the For-
Conduct furnished
specification
sufficient
giveness
applicable.
Doctrine is
Given our
of the
conduct which warrants dis
disposition Respondent’s
disсussion and
action.
ciplinary
Id. Statutes and constitu
arguments
identical
on original submis-
provisions
tional
similarly
define in
sion, we overrule Respondent’s Point of
grounds
broad terms the
for removal of
on Rehearing.3
Error No. Two
judges from
upheld
office have been
in In
(Tex.Rev.Trib.
Lowery,
re
standards he was found to have violated
are unconstitutionally vague. While the Opportunity Denial to Make challenged Canons may this matter pro- Argument Oral Before which, speech scribe some and conduct Commission circumstances, other persons in other In Point of Error No. Four on could not constitutionally be proscribed, Rehearing, contends that his contention that are un- process due rights have been violated since constitutionally overbroad must and is he was opportunity denied the to make an rejected. It is well established argument oral before the Commission re judges, company with other public ser- garding the constitutional issues addressed vants, must suffer from time to time such disagree. above. We rights limits on these as are appropriate to in given objections the exercise situations of their a statement Absent Master, official Lowery, report duties functions. In re the Commis- original preserved 3. We of course note on submis- fact raised and for review. Accord- sion, we found that claim as to ingly, portion we withdraw that of the Tribu- Forgiveness being Doctrine was raised for original opinion per- nal’s as it submission However, appeal. the first time on noted "Applicability tains to his waiver of the ” earlier, granted supplementation we have 'Forgiveness Statute.' the record and now note that the issue was in *38 566 may adopt findings reviewing legal sufficiency
sion of fact of the and factual Thoma, in Special supporting findings Master as its own. In re of the evidence (Tex.Rev.Trib.1994, case, by by 873 S.W.2d 485 no civil either a trial court or Thoma, Rule appeal); jury. at 485. If S.W.2d Judg., Tex.R. Rem’l/Ret. Master, 10(j). findings Special adopted findings of fact are Commission’s Commission, evidence, by the are tanta- adopted supported by given the stan above, findings by fact filed a trial binding mount dards set forth are on jury, County in a trial without a and as a this Review Tribunal. See El Thoma, (Tex. result, in that light. Ortega, reviewed Paso v. 847 S.W.2d writ). ease, App. 873 S.W.2d the instant Paso no On — El objections hand, Respondent did fact file to other this Review Tribunal’s review report. objections If a statement of is of the Conclusions of Law Commission’s filed, the Commission shall give v. are reviewable de novo. Mercer Blud worth, opportunity and the examiner the (Tex.App.— 715 S.W.2d n.r.e.). orally heard before the Commission. Houston writ ref'd [1st Dist.] (em- 10(j) Rule Judg., Tex.R. Rem’l/Ret. again have once reviewed the entire We phasis supplied). original record in the both on instant The record in case demon- the instant subsequent supplemen- submission and on upon proper supplementation, strates that tation, and find that Respondent was not this Review Tribunal abated and remanded present argument entitled to oral before entry the cause to the Commission for regarding the Commission the constitu- supplemental findings of fact and conclu- presented, findings tional issues since no findings sions of law. No of fact were by Special fact made Master were by made Master or the Com- issue, complained-of or later mission as to the constitutional issue com- is, Respondent’s complaint Commission. review, plained any of on nor were re- actuality, directed the Commission’s quested. The Commission did however Supplemental Conclusion of Law No. Supplemental Law make its Conclusion of Eight, by this which is reviewable de novo Eight, noting “Judge No. Barr has any our Review Tribunal event. Given process been accorded due of law under disposition constitutional Constitutions, the United States and Texas issues, Respondent’s Point of Error No. Chapter 33 of the Texas Government Rehearing Four on is overruled. Code, and the Procedural Rules for the Rehearing Motion Judges.” Removal or Retirement of entirety. overruled its The extensive record the instant ease record, reporter’s origi- both on includes supplementation.
nal submission noted,
As we review Commission’s legal
adopted findings of fact for and factu- sufficiency support
al of the evidence to applied
them the same standards notes (2d ed.1995). Ethics, 3.03 Conduct and used and at least with respect to the com- ments to the made Assistant District At- In the instant the record shows torneys, has acknowledged he that the in- that Barr’s to Judge comment Assistant personally dividuals were offended and has Attorney during District S.R. the occurred However, apologized. Respondent does course of a criminal trial at a confer- bench finding contest the of “willfulness” in each hearing jury. ence the outside the of The circumstances, of two the final and asks Attorney previously Assistant had District this Review Tribunal to his excuse conduct objec- to question asked a which a defense given the circumstances within which the tion had sustained. record been indi- comments were made. Attorney cates that Assistant the District proceeded question, to ask the same albeit respect January With incident form, in a different that was likewise im- Judge wherein Barr leaned forward proper. judges enjoy While do inherent Attorney Assistant toward the District power the to issue orders and take neces- stated, “I believe you just can’t asked that sary legal action order to fulfill question. coming I feel like across the responsibilities, power authority that slapping you,” bench and the out crap comment, is not unbridled. Respondent suggests that the remarks you “I just ques- can’t asked that believe merely disagree. were a rebuke. We tion. I the coming feel like across bench above, “willful,” As term noted crap and slapping you,” displays out of context of removal members the Tex- impatience disrespect to a member of misconduct, judiciary as for has been de- bar, greater poten- significance and of fined as follows: tially chilling attorney’s has a effect an representation may of her or client and his “willful,” applied term in Tex. [T]he Const, V, § l-a(6)A, right improper attorney’s art. interfere with to be is according use heard to law. decline to wrongful power his We judge’s power public dignity. extend a inherent to this interest to demand His under each of Judge and find Barr’s comments comments the above circum extreme stances constituted intentional and willful both intentional and willful. be conduct that was inconsistent with i.e., incident, respect With to the final duties, performance of his cast proper Judge Barr’s bench comment upon discredit himself,” go can screw “[Mr. K.S.S.] well as State of Texas as on the adminis that the remark Respondent suggests justice tration of and thus his conduct is any way, not meant to offensive in but l-a(6)A violative of Article Section jest. rather a made in noted statement As 3B(3), the Texas Constitution and Canons above,1Respondent susceptible is to disci- (6) (4), of Judi Texas Code and/or pline for “willful” violations the Texas cial Conduct as discussed relative to so he long Code Judicial Conduct above instances.15 engage intended in conduct which he he disciplined, whether or not formed We only have examined the evidence specific to violate those canons. support intent tends to the Commission’s Judge may It is immaterial Barr findings of willfulness as to conduct as perceived gestures, offensive low-hu- sexual and have comments horseplay. Barr Judge disregarded mored has admit- all evidence and inferences transgression. Accordingly, contrary. ted the verbal no applying the above standard, find his we conduct to be both intentional we there is evidence find and willful. support more than a scintilla of evidence questioned findings in each of Each of comments uttered above paragraphs. Respondent’s above no evi- undignified Barr represents