Brown, In re, B--4229

Decision Date27 June 1974
Docket NumberNo. B--4229,B--4229
Citation512 S.W.2d 317
PartiesIn the Matter of David H. BROWN, District Judge.
CourtTexas Supreme Court

John L. Hill, Atty. Gen., Max P. Flusche, Jr., and Jay Floyd, Asst. Attys. Gen., Austin, for relator.

Jewell E. Abernathy, Roland Boyd, McKinney, Joe A. Keith, Paul Brown, Ralph Elliott, Sherman, for respondent.


Section 1--a of Article V of the Texas Constitution provides for the removal or censure of any judge for '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; . . .' 1 Pursuant to this constitutional directive, the State Judicial Qualifications Commission has recommended to this court the removal from office of David H. Brown, Judge of the 29th Judicial District. Although we have concluded after a full examination of the record that there is evidence of censurable judicial misconduct on the part of Judge Brown, we do not consider this behavior to be so improper as to warrant the removal of Judge Brown from office as recommended by the Commission.

On May 6, 1971, the State Judicial Qualifications Commission instituted a formal investigation of Judge Brown's conduct in office. Pursuant to Rule 4 of the Rules for Removal or Retirement of the Judges, 2 the Commission issued a formal notice of proceedings to Judge Brown and requested this court to appoint a master to take evidence on the charges, as provided by Section 1--a(8) of the Texas Constitution. We appointed a retired district judge.

A hearing was held before the master and his findings of fact were presented to the Commission. By a preponderance of the evidence, the master found that Judge Brown had engaged in no conduct clearly inconsistent with the proper performance of his judicial duties or casting discredit on the state judiciary.

Dissatisifed with these findings, the Commission ordered the 'examiner' 3 to file objections to the master's report as required by Rule 13. The Commission heard oral argument and, following consideration of the record and the report of the master, entered unanimous findings of fact and conclusions of law, finding Judge Brown guilty of misconduct on eight of the ten charges brought for the Commission's consideration by the examiner. The Commission also added a ninth charge in its findings. By the unanimous vote of its sitting members, 4 the Commission recommended to this court that Judge Brown be removed from his office as district judge.


As this is the first removal proceeding instituted under Section 1--a of Article V of the Texas Constitution, the procedural aspects of the process should be clarified.


After making an investigation of charges brought against a judge, the Commission has four alternatives. 5 First, the Commission may reject the accusations made against the judge. Second, the Commission may issue a private reprimand. The third alternative open to the Commission is public censure. In this instance, the Commission removes the veil of privacy from the incidents under investigation and publicly announces its disapproval of the judge's misconduct by an order of public censure. Finally, upon the vote of at least five members, the Commission may recommend removal or retirement 6 by filing such recommendation in this court. 7 Such action does not of itself remove or retire the judge, but it is the necessary charge or accusation by which this court acquires jurisdiction of this final phase of the matter.


Once the Supreme Court obtains jurisdiction over the proceedings by virtue of the Commission's recommendation, it also has four alternatives. 8 The first alternative is the total rejection of the Commission's recommendation. Second, the Supreme Court may order the judge's retirement, in some instances. The third alternative is an order of public censure. The fourth is an order removing the judge from office.


This is not a criminal proceeding, since the function of the Judicial Qualifications Commission is not to punish but to maintain the high quality of the judiciary. In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954); McDaniel v. State, 9 S.W.2d 478 (Tex.Civ.App.1928, writ ref'd). Consequently, the charges against Judge Brown need not be established by proof beyond a reasonable doubt. Moreover, the decision is not one which is grounded upon substantial evidence which supports the Commission's recommendation. The burden to establish the charges against Judge Brown was upon the examiner, and those charges had to be established by a preponderance of the evidence. See Geiler v. Commission on Judicial Qualification, 10 Cal.3d 270, 515 P.2d 1, 110 Cal.Rptr. 201 (1973); Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141 (1941); Cahill v. Mockett, 143 Neb. 730, 10 N.W.2d 679 (1943); Rea v. Rea, 195 Or. 252, 245 P.2d 884 (1952).

We also need to determine the force and effect of the findings made by the master as well as the findings made by the Judicial Qualifications Commission. Section 1--a(8), Article V, Texas Constitution, settles this problem. It empowers the Commission to 'recommend to the Supreme Court the removal, or retirement, as the case may be, of the person in question . . ..' It is the Supreme Court which makes the ultimate decision. The master can hear, take evidence and make a report to the Commission. The findings of the master as well as those of the Commission lead to a recommendation by the Commission, but the term 'recommend' manifests an intent to leave the court unfettered in its adjudication. This court's constitutional responsibility cannot be abandoned by the delegation of the fact finding power to an administrative agency or the master. This court must make its own independent evaluation of the evidence adduced below. Geiler v. Commission on Judicial Qualification, Supra.

Rule 21(d) authorizes this court, for good cause shown, to permit the introduction of additional evidence. 9 That rule does not mean, however, that matters may be informally added to the record by letters and memoranda addressed to the clerk or the court. In this proceeding there has been no motion that additional evidence should be adduced and there has been no showing of good cause. Some unsolicited items have been submitted for inclusion within the record, but our deliberations have been based solely on the record developed before and submitted by the master and the Commission, the briefs and oral arguments.


Judge Brown raises several objections to the proceedings as a whole which require discussion. First, petitioner says that his re-election to his office after the commission of the things for which he was charged operates as a complete defense to any disciplinary action. He relies upon Article 5986, Vernon's Ann.T.C.S., which says:

No officer in this State shall be removed from office for any act he may have committed prior to his election to office.

Article XV, Section 7, of the Texas Constitution authorizes the Legislature to provide for the removal of officers for whom the modes of removal are not provided in the Constitution. This proceeding is authorized by the Constitution, and for that reason Article 5986 is not applicable. However, the spirit of that statute was applied to a proceeding to remove a judge pursuant to Article XV, Section 6, of the Texas Constitution in the case of In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, 808 (1954). The rule was there stated:

'Neither may removal (of judges) be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C.S.'

The rationale for the doctrine is the sound reason that the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official. Reeves v. State, 114 Tex. 296, 267 S.W. 666 (1924). The underlying basis for the principle is that the public can knowingly return one to office in spite of charges of misconduct. Public access to full information was the basis for this court's approval of the rule in Laughlin, supra, as appears from the portion quoted above. Matters of public record or matters which are otherwise known to the electors may be forgiven, says the opinion.

The measure of open disclosure to the public which is contemplated by Laughlin, supra, may be severely limited in the case of investigations of judicial misconduct, prior to the time the Judicial Qualifications Commission files a proceeding in the Supreme Court. 10 Up to that time, unless the acts complained of have otherwise become a matter of public record or known to the public, the Constitution preserves the confidentiality of the information. It was during this stage of the investigation that Judge Brown's re-election occurred. The master who was conducting hearings in this matter in 1972, admonished Judge Brown's opponent to respect the confidentiality of the charges against Judge Brown or risk a contempt citation. Hence, a question arises as to whether the voters were sufficient aware of Judge Brown's misdeeds for the Laughlin rule to be invoked. However, in view of our decision not to remove Judge Brown, it is unnecessary for us to decide whether or not the acts complained of were so well known to the public, prior to institution of this proceeding, that the prior-term doctrine does or does not apply in this instance. It is enough for us in this case to hold that the doctrine does not apply with reference to a censure of a judge for an act committed during a prior term,...

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