In re Canales, 84.

• Decision Date: 04 September 2003
• Docket Number: No. 84.,84.
• Citation: 113 S.W.3d 56
• Parties: In re Terry A. CANALES, Judge, 79th Judicial District Court of Texas.
• Court: Texas Supreme Court

113 S.W.3d 56

In re Terry A. CANALES, Judge, 79th Judicial District Court of Texas.

No. 84.

Review Tribunal, Appointed by Supreme Court of Texas.

September 4, 2003.

Seana Willing and Jacqueline R. Habersham, State Commission on Judicial Conduct, Austin, David Horton, Neel & Horton, L.L.P., Kirk Mills, Law Offices of Kirk Mills, P.C., South Padre Island, for Petitioner, State Commission on Judicial Conduct.

Augustin Rivera, Jr., Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C., Darrell L. Barger, Hartline, Dacus, Barger, Dreyer & Kern, L.L.P., Corpus Christi, Jack Paul Leon, Law Offices of Jack Paul Leon, San Antonio, Gabriela S. Canales, Law Offices of Gabriela S. Canales, Alice, for Respondent, Terry A. Canales.

OPINION

Chief Justice RICHARD BARAJAS, delivered the opinion of the Review Tribunal in which Justices DAY, O'NEILL, ROSS, NUCHIA, GUZMAN, and MARION, join.¹

This is an appeal from the recommendation of the Texas State Commission on Judicial Conduct that Respondent, Terry A. Canales, be removed as Judge of the 79th Judicial District Court of the State of Texas, and further, that he be forever barred from holding judicial office in this State.² The Commission found that Respondent, while in his judicial capacity, and at times in his chambers, engaged in inappropriate, unsolicited, sexually suggestive conduct which included sexual assault and battery, i.e., forcefully kissing and fondling three young women. The women included his twenty-seven-year-old court secretary, an eighteen-year-old part-time employee with the Brooks County District Attorney's Office, and the twenty-one-year-old pregnant daughter of his court bailiff. Respondent has rejected the findings, conclusions, and recommendations of the Commission and in response, challenges the findings and ultimate recommendation that he be removed from office.

I. SUMMARY OF THE EVIDENCE

The State Commission on Judicial Conduct, in adopting its findings of fact, found that Judge Terry A. Canales relentlessly engaged in willful and persistent conduct clearly inconsistent with the proper performance of his duties, and further, that his willful and persistent conduct cast public discredit upon the judiciary or the administration of justice. The Commission found his action to be in violation of TEX. CONST. art. V, § 1-a(6)A of the Texas Constitution. As noted above, the Commission found that Respondent, while in his judicial capacity, and at times in his chambers, engaged in inappropriate, unsolicited, sexually suggestive conduct with three young women.³

The voluminous record in the instant case shows, and the Commission found, that on or about August 1996, Judge Terry A. Canales engaged in the inappropriate physical touching and kissing of "L.B.," his twenty-seven-year-old court secretary at the time. The unsolicited and unwelcome touching took place in Respondent's chambers located in Alice, Jim Wells County, Texas, during regular court hours. The record shows that "L.B." entered Respondent's chambers to conduct routine business and pick up signed notices. "L.B." testified that upon her entering the chambers, "he got up and walked around his desk and just grabbed me and started kissing me." "L.B." further testified that she did not consent to the grabbing and kissing, but rather pushed him away and immediately left the chambers.

The Texas State Commission on Judicial Conduct found that Respondent's actions in engaging in the inappropriate physical touching of "L.B.," while in his judicial chambers constituted willful or persistent conduct in violation of Article V, § 1-a(6) of the Texas Constitution,⁴ and Canon 2A of the Texas Code of Judicial Conduct,⁵ and thus, was willful conduct that was clearly inconsistent with the proper performance of his judicial duties and further served to cast public discredit upon the judiciary or the administration of justice.

The record further shows that on or about February 5, 2000, Respondent made an unsolicited telephone call to "R.H.," an eighteen-year-old part-time employee with the Brooks County District Attorney's office, during which time he made sexually suggestive comments. The record shows that "R.H." came to know Respondent during her employment. During the course of time, Respondent offered to find her full-time employment with his daughter's law firm. "R.H." testified that she never gave Respondent either her cellular phone number nor her home phone number, but that nonetheless, he acquired her telephone numbers and began calling her. She testified that Respondent would make late night calls to both her cell and home phones which had no substantive content, something she found discomforting. On the occasion at hand, Respondent made a morning call to "R.H." while she was getting ready to go to school. She testified that she told him she was going to take a shower and he responded in a sexually suggestive manner. "R.H." testified that:

[he wanted me] to think about him in the shower while I'm in the shower rubbing myself. To think about him touching me.

According to "R.H.," this was his last call and no contact was made until the following month in March within his chambers.

The record shows that on or about March 20, 2000, during regular court hours, Respondent engaged in inappropriate non-consensual physical touching of "R.H." while the two were meeting in his chambers in Falfurrias, Brooks County, Texas. "R.H." testified that she was visiting the judge's secretary, Sandra Barrera, and Barrera asked "R.H." to "grab the Judge a soda." Barrera's phone then rang, so "R.H." handed the soda to Respondent in his chambers. As "R.H." was walking toward Respondent to deliver the soda, Respondent walked towards the door and shut it, making it difficult for her to leave. "R.H." further testified that Respondent told her about a county commissioner who was considering making her job with the District Attorney's Office full-time, rather than part-time, with benefits. According to "R.H.," she stated that she "better go" and the conversation shifted to Respondent asking for a hug. Believing Respondent was joking, she said, "No." "R.H." testified that Respondent stated, "No, come on, give me a hug." "R.H." kept saying "no" and he kept asking. "R.H." stated that she finally "just put my arms out to let him hug me." According to "R.H.," she agreed to give him a hug hoping she would then be able to leave. "R.H." testified that while she did agree to hug Respondent, she did not consent to being fondled and related Respondent's actions as follows:

[h]e hugged me underneath my arms. And he touched my butt, put his hands on my butt and tried lifting my dress. I was wiggling and holding my hands up at his chest and—[sic] just keep him away.

"R.H." testified that soon after, Respondent asked her to sit down on his couch to continue their discussion. She sat down at which time Respondent put his hand inside her sleeveless dress and pulled out her bra strap. "R.H." testified that:

And he said, `Oh, I like black.' And then he put his hand on my knee and tried lifting my dress and said, `Now let's see if these are matching.'

Finally, "R.H." testified that she stood up and pulled her dress down and walked towards the door, but that Respondent put one hand on the door, the other hand around her waist, pushed himself against her, moaned as he kissed her ear and cheek, and would not otherwise release her. "R.H." believed that she was able to leave the judge's chambers when Respondent heard people approaching.

The Texas State Commission on Judicial Conduct found that Respondent's actions on February 5, 2000, in making sexually suggestive comments to "R.H." during an unsolicited telephone conversation, and his actions of March 28, 2000, in engaging in the inappropriate physical touching of "R.H.," while in his judicial chambers constituted willful or persistent conduct in violation of Article V, § 1-a(6) of the Texas Constitution, and Canon 2A of the Texas Code of Judicial Conduct, and thus, was willful conduct that was clearly inconsistent with the proper performance of his judicial duties and further served to cast public discredit upon the judiciary or the administration of justice.

Finally, the record shows that on or about April 20, 2000, Respondent, during regular court hours and at a meeting in his chambers, engaged in making sexually suggestive comments to "F.D.," the twenty-one-year-old pregnant daughter of his court bailiff,⁶ and further at that same time and place, engaged in the inappropriate nonconsensual physical touching of "F.D."

"F.D." testified that she was introduced to Respondent by her father Juan Delgado, his court bailiff, when she was nine years old, and that she had maintained an amicable relationship with Respondent and his family. Respondent had extended his relationship with "F.D." by securing her employment in both his office and at the juvenile probation office. In addition, on one occasion, he paid one semester of her college tuition. "F.D." stated that in April 2000 she was unemployed and went to visit Respondent at the courthouse in reference to finding a job. She further told Respondent about her pregnancy and her boyfriend. According to "F.D.," Respondent agreed to help, and asked her to return in a week. She stated that she returned a week later, as directed, and met with Respondent in his chambers where he received her with a cordial greeting, asked her to sit down, and sat next to her on his couch. "F.D." testified that she and Respondent conversed about her pregnancy, all the while he had his eyes fixated on her breasts which made her feel uncomfortable. She further testified that she struggled with arranging her dress, while Respondent shifted the conversation by commenting on her physical appearance. In describing the moment, "F.D." stated:

And he asked me, `Are you insecure?' And I said, `No I'm not.' And he said, `Well you shouldn't be. You've grown up into a very beautiful...