Sunset Advisory Commission issues oversight report on judicial conduct (TX)


The Texas Sunset Advisory Commission has issued a staff report on the State Commission on Judicial Conduct.  Listed below are issues and recommendations:

Issue 1

The Texas Constitution Limits the Commission’s Options to Hear Major Cases in Open Proceedings.

The Commission investigates complaints against judges and conducts either informal or formal proceedings to decide whether or not to take action against a judge.  Once the Commission institutes a formal proceeding, it can only dismiss the complaint, issue a censure, or make a recommendation on removal or retirement.  The Commission may not issue any of the lesser,more remedial sanctions it has available following an informal proceeding.

Sunset staff found the Commission’s limited range of penalties available following a formal proceeding could deter it from pursuing cases of public import in open proceedings.  Allowing the Commission to issue any of its lesser sanctions — in addition to a public censure or recommendation for removal or retirement — would equip the Commission with all the necessary tools it needs and remove any disincentive to taking a case to an open, formal proceeding when warranted.

Key Recommendations

  • Constitutionally authorize the Commission to use its full range of sanctions following formal proceedings.
  • Statutorily authorize a Court of Review to hear appeals of sanctions following formal proceedings, in the same manner as it hears appeals of censures.

Issue 2

Inconsistencies Between Its Statute and Rules Create the Potential for Litigation and Inefficiencies in the Commission’s Operation.

The Texas Constitution directs the Supreme Court to promulgate rules for proceedings before the Commission and before an appellate body hearing an appeal of a Commission decision. The constitution also authorizes the Legislature to provide additional direction to the Commission on its operations in statute. Sunset found the Commission’s procedural rules being on an equal legal footing with state law creates the potential for conflicts and legal challenges. Further,since the Supreme Court has not updated the Commission’s procedural rules in many years, the Commission now has several discrepancies between its statute and its rules.

Requiring the Commission to study its procedural rules for needed updates and to report these findings to the Supreme Court would help to enable the Supreme Court to more regularly update the rules to stay current and prevent conflicts that muddle the Commission’s process and provide potential fodder for legal challenges.

Key Recommendation

  • Require the Commission on Judicial Conduct to report to the Supreme Court as needed on suggested changes to update its procedural rules.

Issue 3

Lack of Access to Key Meetings and Records Limits Sunset’s Ability to Fully
Assess the Commission’s Oversight of Judges.

The Sunset Act requires state agencies to assist the Sunset Commission and authorizes Sunset staff to inspect the records, documents, and files of an agency. The Sunset Act also protects an agency’s confidential records by providing that Sunset staff must maintain the confidentiality of any such information obtained during the course of a review. However, the Commission would not allow Sunset staff to attend its largely closed meetings to observe its enforcement process and barred staff from viewing the memoranda the Commission’s legal counsel provides to Commission members for formulating rulings on cases.  As a result, staff could not assess the Commission’s primary duty.

Requiring the Commission to provide Sunset staff with access to observe its closed meetings and review its confidential records would ensure a complete and thorough evaluation of the Commission’s activities. Sunset would continue to maintain confidentiality of the information. In addition, reviewing the Commission in six years, rather than the standard 12-year period, would allow the Commission time to implement changes recommended as a result of this review and enable Sunset to more fully evaluate the Commission’s disciplinary process.

Key Recommendations

  • Require the Commission to provide Sunset staff with access to observe its closed meetings and review its confidential records to ensure a complete and thorough evaluation of the Commission’s activities.
  • Review the Commission in six years, rather than the standard 12-year period.

Fiscal Implication Summary

These recommendations should have no fiscal impact to the State, except for the State’s one-time publication costs of $104,813 for placing a constitutional amendment on the ballot.

Estate of Denial® found the third issue of greatest interest.  How can an oversight committee perform its function when not allowed access to key meetings and files?  We’ll answer our own question.  With the legal industry (lawyers, judges and other court-associated personnel), rules and other norms by which average taxpayers function are routinely disallowed, disaffirmed, rejected, refuted, shrugged off, slighted, negated and/or nixed.  You get our point.  The rules don’t apply.

Our cynical view seems also reflected in the report section on Results of Sunset Survey of Complainants and Judges (p. 31-32).  Note the differential between complainant and judicial responses.

One final note, it appears that public testimony on this report will be taken Tuesday, April 12.