In Re James Barr
| Decision Date | 13 February 1998 |
| Docket Number | No. 67,67 |
| Citation | 13 S.W.3d 525 |
| Parties | (Tex.Rev.Trib. 1998) In re James L. "Jim" BARR, Judge, 337th Judicial District Court of Texas Inquiry |
| Court | Texas Supreme Court |
Chief Justice Richard Barajas, delivered the opinion of the Review Tribunal in which Chief Justices Cornelius, Ramey and Davis, and Justice Stover, join. 1.
This action results from the recommendation by the State Commission on Judicial Conduct that Respondent, James L. "Jim" Barr, be removed as Judge of the 337th Judicial District Court of the State of Texas, and further, that he be prohibited from holding judicial office in the future. 2 Judge Barr 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. We affirm the Commission's findings in part, reverse in part, and affirm the ultimate recommendation of removal.
The comprehensive record in the instant case reflects that the State Commission on Judicial Conduct adopted the findings of fact which were entered by a Special Master. The Special Master found that Judge James L. "Jim" Barr engaged in willful or persistent conduct that is clearly inconsistent with the proper performance of his duties, in violation of TEX. CONST. art. V, 1-a(6)A (1993), and further, that Judge Barr willfully violated various provisions of the Texas Code of Judicial Conduct. See TEX. CODE JUD. CONDUCT (1993), reprinted in TEX.GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 1997). Among other things, the Special Master specifically found that Judge Barr, through sexual comments and gestures, violated the constitution of the State of Texas and the Texas Code of Judicial Conduct, in motioning to an assistant district attorney, from the bench, by crooking his index finger as if he wanted her to approach, and stating to her, "I just wanted to see if I could make you come [reach an orgasm] with one finger;" in telling an assistant district attorney who sought to return to her office while a jury deliberated that "You are so nice to look at, if you leave, all I'll have to look at all afternoon are swinging dicks;" in telling an assistant district attorney that she must be on her period, reasoning that "Women always carry around their purse when they're on their period;" and, in stating that a certain attorney could "go screw himself" in response to an attempt to reset a criminal case. The Special Master further found that Judge Barr, throughout his tenure on the bench, has periodically referred to assistant district attorneys who are female as "babes."
The Special Master further found that Judge Barr willfully ordered that a writ of attachment be issued to bring a sheriff's deputy before him at a time that neither the prosecution nor defense had requested that such a writ be issued nor filed an affidavit that the sheriff's deputy was a material witness in a criminal case. The Special Master also found that Judge Barr willfully and verbally instructed that the sheriff's deputy be taken into custody without the benefit of having reviewed the recitations contained in both the subpoena and writ of attachment; and, that such action was contrary to established provisions of the United States Constitution and the constitution of the State of Texas. The Special Master found that Judge Barr willfully set bail for the sheriff's deputy at $ 50,000 with the intent that the deputy spend time in jail in the absence of receiving evidence as to the deputy's financial condition. The Special Master found that Judge Barr willfully excluded the sheriff's deputy's counsel from being present with his client as his client was being addressed by the Judge from the bench.
The above findings, among others, and the supporting evidence will be detailed in the discussion of each of Respondent's issues presented for review.
The record in the instant case establishes that on December 19, 1996, Judge James L. "Jim" Barr, Respondent, was served with Notice of Formal Proceedings. On January 28, 1997, upon request of the Commission, the Texas Supreme Court appointed the Honorable Noah Kennedy as Special Master to hear evidence on the charges and report thereon to the Commission. In March 1997, a formal hearing on the merits was conducted before the Special Master at the South Texas College of Law, Houston, Texas. On April 14, 1997, the Special Master filed his initial findings of fact with the Commission in which he concluded that a preponderance of the evidence showed Judge Barr to have engaged in judicial misconduct, as alleged. On May 2, 1997, the Commission requested that the Special Master make findings concerning the "willfulness" of Judge Barr's conduct. The Commission also requested that the Special Master conduct a hearing to make findings concerning additional alleged misconduct which was said to have occurred on April 22, 1997. Subsequent to the initial hearing, the Commission amended its original Notice of Formal Proceedings. On September 11 and 12, 1997, a second evidentiary hearing was conducted. On September 19, 1997, the Special Master made additionalfindings of fact, and supplemental findings on September 23, 1997. On October 9, 1997, the Commission agreed with and affirmed the Special Master's findings of fact. On October 13, 1997, the Commission petitioned the Supreme Court for appointment of a Review Tribunal and this panel was announced on October 23, 1997. Thereafter, on October 24, 1997, the State Commission on Judicial Conduct filed its findings and conclusions with this Review Tribunal seeking review of its recommendation that Respondent be removed from office, and further, that he be prohibited from holding judicial office in the future.
In a civilized society, members of the judiciary are significant public figures whose authority necessarily reaches all points within their respective jurisdiction, if not beyond. Members of the judiciary of the State of Texas, whether a municipal judge in Fort Stockton, a justice of the peace in Cameron County, the county court at law judge in Liberty County, a state district judge in Ozona, a justice on the Sixth Court of Appeals, Texarkana, or the Chief Justice of the Texas Supreme Court, all serve as the collective guidon of the banner representing fairness and impartiality in our state. It is for that reason, plus others, that the judiciary must nurture and maintain respect for their decisions, as well as the judiciary of the State of Texas as a whole. The Texas jurist must be held to the highest standards of integrity and ethical conduct, much more so than the standards to which members of the executive and legislative branches are held accountable. Consequently, the ultimate standard for judicial conduct in the State of Texas must be more than effortless obedience to the law, but rather, must be conduct which constantly reaffirms one's fitness for the high responsibilities of judicial office and which continuously maintains, if not furthers, the belief that an independent judiciary exists to protect the citizen from both government overreaching and individual self-help.
In the instant case, Respondent advances six reasons why this Review Tribunal should reverse the findings of the Special Master and ultimately the State Commission on Judicial Conduct, and reject the Commission's recommendation that he be removed. 3 Specifically, Respondent suggests that the evidence is insufficient to establish a showing of "willful" violations of the constitution of the State of Texas and the Texas Code of Judicial Conduct; that the Commission unconstitutionally and incorrectly interpreted Texas law in its finding of "willful" violations against the Respondent; that the application of the Texas Code of Judicial Conduct and law to Respondent is unconstitutional for reasons of overbreadth and vagueness; that the Commission found violations of the Texas Code of Judicial Conduct for recommended behavior, rather than prohibited behavior; that the Commission's findings violate Respondent's right to freedom of speech and expression; and, that the recommendation of removal is inappropriate.
Judicial conduct proceedings brought in accordance with the constitution of the State of Texas and established rules for the removal or retirement of judges, are neither criminal nor regulatory, but rather are civil in nature. Their purpose is not necessarily to punish, but to maintain the honor and dignity of the judiciary of the entire State of Texas and to uphold the administration of justice for the benefit of all its citizens. See In re Thoma, 873 S.W.2d 477, 484-85 (Tex.Rev.Trib. 1994). The burden was upon the Examiner for the State Commission on Judicial Conduct to establish, before the Special Master, the allegations against Judge Barr by the civil standard of preponderance of the evidence. Thoma, 873 S.W.2d at 485; see also In re Brown, 512 S.W.2d 317, 319-20 (Tex. 1974). In that regard, to the extent that they do not conflict with the RULES FOR REMOVAL OR RETIREMENT OF JUDGES, the civil rules of procedure, both trial and appellate, are applicable. TEX. R. REM'L/RET. JUDGES, 56 Tex.B.J. 823 (1993), Rules 10(d), 12(e) and (g). Moreover, during the course of any hearing conducted in the furtherance of formal proceedings, whether before a special master or the Commission, only legal evidence is to be received. 4 Thoma, 873 S.W.2d at 485; TEX....
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