Bates, Matter of

• Court: Texas Supreme Court
• Writing for the Court: GREENHILL; The Judicial Qualifications Commission of Texas instituted this proceeding and has recommended the removal of Garth C. Bates; Bates; Bates; Bates; Bates; Bates; Bates; Bates; Bates; Bates; Bates; In his final contest regarding the legality
• Citation: Bates, Matter of, 555 S.W.2d 420 (Tex. 1977)
• Decision Date: 11 July 1977
• Docket Number: No. B-6451,B-6451
• Parties: In the Matter of Garth C. BATES, Judge, 174th Judicial District Court.

Page 420

555 S.W.2d 420

In the Matter of Garth C. BATES, Judge, 174th Judicial District Court.

No. B-6451.

Supreme Court of Texas.

July 11, 1977.

John L. Hill, Atty. Gen., Max Flusche, Asst. Atty. Gen., Austin, for Judicial Qualifications Commission.

Wade, Rasmus & Washington, Craig Washington, Houston, for Garth C. Bates.

GREENHILL, Chief Justice.

The Judicial Qualifications Commission of Texas instituted this proceeding and has recommended the removal of Garth C. Bates, Judge of the 174th District Court of Harris County. The proceedings were instituted following the arrest of Judge Bates and his subsequent indictment on criminal charges of bribery.

Section 1-a(6) of Art. V of the Texas Constitution provides for the censure or removal of any judge for these reasons:

" . . . willful or persistent conduct, which is clearly inconsistent with the proper performance of his said duties or casts public discredit upon the judiciary or administration of justice; . . .."

We agree with the recommendation of the Judicial Qualifications Commission that Judge Bates should be removed under the foregoing provision of our constitution; and he is hereby removed.

The testimony in this case is lengthy. It is contained in ten (10) volumes of testimony, in depositions, and upon tapes which were admitted by the Master appointed by this Court to receive the evidence. Only the essence of the testimony may be set out herein. The Master, the Honorable Walter E. Jordan, Judge of the 48th District (Ft. Worth, Tarrant County), made a summary in his Master's Report. The entire record has been fully considered by this Court. One of Judge Bates' points here is that there is no evidence, or insufficient evidence, to support the findings and conclusions of the Commission. We disagree. The matters set out below from the Master's Report are, in our opinion, fully supported by the record.

It should be noted at the outset that Judge Bates did not file an answer to the Commission's charges, and he never appeared in person while the Master was receiving evidence during a 10-day period in his home city of Houston. His counsel made several preliminary motions, but Judge Bates made no denial; and he did not testify. He appeared through very able counsel, ¹ and his grounds for rejection of the Commission's findings and recommendations include points alleging that he was not given due process and that certain portions of the evidence should not have been admitted. These points will be discussed below.

After having heard the evidence and having read the evidentiary record, the Master's Report states in part that Judge Bates was charged by the Commission,

"with acceptance of a pecuniary bribe from one Nukie Fontenot, in return for a commitment by the Judge that Fontenot would not serve any prison term for the crime of theft and aggravated robbery, with which Fontenot was charged in Judge Bates' Court."

Judge Bates was entitled to receive, and did receive, notice as to these particular charges; but the grounds for his removal are set out in the Constitution, "willful or persistent conduct . . . which is clearly inconsistent with the proper performance of his said duties, or (conduct which) casts public discredit upon the Judiciary or (the) administration of justice. . . . " The criminal charges against Judge Bates are the subject of a separate criminal proceeding, now upon appeal.

The Master's Report, which we adopt for these purposes, sets out the pertinent facts:

"Nukie Fontenot, Manager of the Northwest Jewelry and Loans, a pawn shop at 1434 Atkins in the city of Houston, Texas, was originally, sometime in 1975, charged with receiving and concealing stolen goods, and later was re-indicted for theft and aggravated robbery arising out of the same transaction, the robbery of a private home owned by people by the name of Mize. Some time in late 1975, October or November of that year, Fontenot was introduced to one Ed Riklin, by one Jerry Kottwitz, a Fontenot friend. The evidence very clearly shows throughout that Riklin was a professional gambler, whose reputation at best was questionable, and who was a close personal friend of Judge Garth C. Bates.

"During the period between late 1975 and July 16th, 1976, Fontenot had many meetings and conversations with Riklin, who during most if not all of these conversations indicated and represented to Fontenot that he could, for the proper amount of money, secure and obtain from the offices of Judge Garth C. Bates a deal whereby Fontenot would not serve any time on any criminal charges arising out of the Mize robbery. According to the evidence, Riklin represented to Fontenot that he was close to Judge Bates, that the relationship with Judge Bates was like father and son, and that he could help Fontenot out of his troubles by getting Judge Bates, in whose Court the charges against Fontenot were filed, to be lenient with Fontenot. Between March 4th and July 16th, 1976, Fontenot had some twenty (20) or twenty-five (25) different telephone conversations with Ed Riklin, all dealing with the proposition that for the proper payment Fontenot could obtain the required assistance from Judge Bates.

"Sometime in early March, 1976, Detectives Nuccia and Musick of the Houston Police Department contacted Fontenot, telling him in a recorded conversation that they, the Houston Police Department and the Harris County District Attorney's Office, knew what was going on between him Ed Riklin and Judge Bates, and that the only way Fontenot could be helped with respect to the criminal charges pending against him was for him, Fontenot, to assist the police and District Attorney in the investigation and prosecution of Judge Bates. Fontenot agreed to assist the authorities, and accordingly all conversations between Fontenot and Riklin, and two (2) conversations between Fontenot and Judge Bates, were recorded on tape, and some of them were played into evidence at this hearing.

"Mr. Fontenot's testimony is very lengthy, and must be read for the full significance thereof. Only the highlights of his testimony are set forth herein. His testimony may be found in Volumes Two, Three and Four of the Statement of Facts, beginning on Page 175 and ending on Page 506.

"The negotiations with respect to the transaction between Fontenot and Riklin went on, with the full knowledge and consent of representatives of the Houston Police Department and the Harris County District Attorney's Office until Friday, July 16th, 1976. The testimony of Detective Musick, Special Investigator D. I. Baker, and former Assistant District Attorney Robert C. Bennett, Jr., as well as that of Fontenot, and others, reflect this fact.

"On July 15th, 1976, the evidence shows without dispute that the Harris County District Attorney's Office, through Robert C. Bennett, Jr., arranged for a temporary loan in the amount of $60,000.00 from a Houston bank, . . .. This sum was obtained on July 15th, 1976, by Mr. Bennett, and was by him deposited in a safe in the Special Crimes Bureau of the District Attorney's Office on the afternoon or early evening of July 15th, 1976 * * * (T)he Record shows that before the $60,000.00 (in $100 bills) was placed in the safe, every bill was Xeroxed, and the Xeroxed copies of the bills, as well as the serial number on each bill was retained by the District Attorney's Office and later admitted into this Record as Examiner's Exhibit No. 11.

"In the early morning of July 16th, 1976, Mr. Baker deposited $59,000.00 of this sum of $60,000.00 in a safety deposit box belonging to Nukie Fontenot at the Northwest National Bank, Northwest Mall, Houston, Texas. The evidence shows that only $59,000.00 was deposited in Fontenot's safety deposit box for the simple reason that $1,000.00 of the total $60,000.00 was inadvertently left in the Xerox machine the evening before, on July 15th, 1976, when the entire $60,000.00 was Xeroxed.

"Sometime around 9:00 o'clock, on the morning of July 16th, 1976, Nukie Fontenot came to the Northwest National Bank, got the money from his safety deposit box and gave it to Ed Riklin, who put it in his own briefcase. The evidence shows that at this time when Fontenot was present at this bank, present also was Riklin, Judge Garth Bates and one James H. Brown, a long time friend of Judge Bates, who served the Judge as his accountant and Adult Probation Officer. Also present in the vicinity in different cars, in addition to the ones mentioned above, were Detective Earl Musick and Special Investigator D. I. Baker.

"The officers attempted to follow Mr. Riklin, Judge Bates and Mr. James H. Brown, who were all in separate cars. The officers, however, lost the subjects and didn't see any of them again until later in the day. The Record reflects that Officers Nuccia, Musick, Baker, Vasquez, Rogers, and perhaps others, were at Ed Riklin's apartment at 2320 McCue Street in the city of Houston in the early afternoon of July 16th, 1976, and that at about 2:30 p. m. on that afternoon these officers arrested Ed Riklin in front of his apartment. The evidence shows that Riklin came running out of his apartment with a chrome plated sawed off shotgun, which he was waving around, and the officer disarmed and arrested him.

"Immediately after Riklin was arrested by the officers, Judge Bates drove up in his Cadillac, and all the officers involved in the arrest of Riklin, saw the Judge pull up in his car. Judge Bates apparently, according to Investigator Baker and Officer Musick, observed what was going on and immediately started to back up in an attempt to leave the area. However, he was surrounded by all of the officers there present, and was stopped and ordered out of the car. Detective Earl Musick was the one who actually ordered the Judge out of his car and placed the Judge under arrest. He told the Judge not to reach in his pocket because, 'you may have a pistol and I have to handle this in the usual manner.' Judge Bates did have a...