In Re Lowery, 71

Citation999 S.W.2d 639
Decision Date13 February 1998
Docket NumberNo. 71,71
CourtSupreme Court of Texas


Presiding Justice Ann Crawford McClure delivered the opinion of the Review Tribunal in which Justices Donald Ross, Bob Dickenson, Woodie Jones, Bill Vance, and Roby Hadden join.

Justice Don Burgess filed a concurring and dissenting opinion.

Judge Bill R. Lowery, Justice of the Peace, Precinct 2, Place 2, Irving, Dallas County, Texas, petitions the Review Tribunal1 to reject the recommendation of the State Commission on Judicial Conduct for his removal and prohibition from holding judicial office in the future.


On April 3, 1997, Respondent was served with a Notice of Formal Proceedings. The Supreme Court appointed the Honorable F. B. (Bob) McGregor, Jr., Judge of the 66th District Court of Hill County, as Special Master on June 5, 1997, to hear evidence on the charges and to report to the Commission. A formal hearing on the merits was held before the Special Master on July 15-16, 1997, at the George Allen Courts Building, Dallas, Texas.

On September 8, 1997, the Special Master filed his report with the Commission in which he concluded that a preponderance of the evidence showed Respondent to have engaged in judicial misconduct. Specifically, he concluded that Respondent 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 that Respondent had willfully violated various provisions of the Texas Code of Judicial Conduct. See TEX.CODE JUD.CONDUCT, reprinted in TEX.GOV'T CODE ANN., tit. 2, Subt. G, App. B (Vernon 1988).

Respondent filed written objections to the report of the Special Master on September 25, 1997. The Examiner filed a response on October 3, 1997. On October 8, 1997, Respondent filed a motion to present additional evidence which included character references. The same day, the Commission overruled Respondent's objections and adopted and affirmed in their entirety the findings of fact filed by the Special Master. It then recommended that the Supreme Court appoint a Review Tribunal pursuant to TEX.CONST. art. V. 1-a(8); that Respondent be removed from office by order of the Review Tribunal; and that the Review Tribunal issue an order prohibiting Respondent from holding judicial office in the future.


As we have referenced, the State Commission on Judicial Conduct adopted the findings, conclusions and recommendations entered by the Special Master. These findings involve five incidents referred to throughout the record as "Items." The following factual recitation is specifically derived from the formal findings of the Special Master.

Item 1:

The Grupe Incident

During May and June of 1995, Paul Fredrick Grupe and Marian Dana Grupe were litigants in a divorce proceeding in the 255th District Court of Dallas County, Texas. No court action involving Paul or Dana Grupe was pending in the Precinct 2, Place 2, Justice Court or Small Claims Court of Respondent. On behalf of Pat Patrick, the step-father of Mrs. Grupe, Respondent telephoned Mr. Grupe and told him that he needed to come to Respondent's office at the Justice Court by noon the following day to transfer the title of a vehicle to Mrs. Grupe. Mr. Grupe advised Respondent that a divorce was pending, that the community property had not yet been divided by the court, and that he needed to check with his attorney. Respondent asked Mr. Grupe if he knew what a Constable's car looked like, causing Mr. Grupe to believe he might be arrested if he failed to comply.

Mr. Grupe called his divorce attorney, Lisa McKnight, who in turn contacted Respondent. McKnight asked him the purpose of his instructions to her client. Respondent told McKnight that Mrs. Grupe's father had bought the vehicle for her and that Mr. Grupe needed to come to Respondent's court to transfer title to that vehicle to Mrs. Grupe by noon the next day. Respondent admitted he had no authority to order Mr. Grupe to appear, but left every impression that he would secure that authority. Respondent's language and intonation toward Mr. Grupe and McKnight, both members of the public, were perceived by them as threatening and intimidating. The Special Master specifically found that Respondent's actions in telephoning Mr. Grupe, his statements to McKnight, and his use of profane and rude language [including his references to arrest] constituted willful conduct.

Item 2:

The Judge Forman Incident

On February 16, 1996, the Commission imposed sanctions on Respondent for his actions in the Grupe incident, directed Respondent to complete eight hours of judicial training2, and directed him to contact Roger Rountree, Director of the Justice Court Training Center, no later than March 15, 1996 in order to have a mentor judge appointed. The Commission expressed its desire that the instruction be completed within ninety days of the date Respondent contacted Rountree. The Commission further requested that Respondent notify the Commission in writing upon his completion of the training.

On April 11, 1996, Respondent was informed by Rountree that Judge Robert A. Forman had been appointed as his mentor judge. At Respondent's request, he was granted an extension for completion of the training to July 31, 1996. By letter dated November 15, 1996, Respondent was informed by the Commission that it had no record of his completing the training and that his failure to complete the ordered education was set to be reviewed by the Commission during its regularly scheduled December meeting. The Commission requested that Respondent provide no later than November 30, 1996 the date of completion or the reasons for failure to accomplish the training. During the week of November 25, Respondent contacted Judge Forman about the judicial education and learned that Judge Forman could not meet with him before the Commission's December meeting. Respondent then requested that Judge Forman report to the Commission that the training had been completed, even though this was untrue. Judge Forman refused to do so. Respondent failed to obtain the eight hours of additional education by the Commission's meeting on December 13, 1996; nor had he completed the training by the meeting of February 13-14, 1997, nearly one year after the original sanctions were imposed. His failure to comply with the Commission's order of February 16, 1996 requiring him to receive eight hours of additional judicial education was found by the Special Master to constitute willful conduct.

The Special Master made the following specific findings regarding the solicitation of the false report:

As to Item 2, Number 7, the Special Master finds that during the week of November 25, 1996, [Respondent] did in fact, contact Judge Robert A. Foreman [sic] regarding his need to complete the needed hours of judicial education. When [Respondent] was informed that Judge Foreman [sic] would not be able to meet with [Respondent] to complete the order for additional education before the Commission's meeting in December, [Respondent] asked Judge Foreman [sic] 'well, why don't you fudge it -- why can't we fudge on it,' that Judge Foreman [sic] asked [Respondent] what he meant by 'fudging' and the clear understanding of both men was that what was meant would be to advise the Commission that the work had been completed, when it had not, and that Judge Foreman [sic] responded 'I think you've misjudged me considerably, that I would not do that.' Judge Foreman [sic] did, in fact, refuse to inform the Commission that the 8 hours of education had been completed. Therefore, based on a preponderance of the evidence, the Special Master finds that [Respondent] willfully asked a fellow Justice of the Peace to submit a false report to the Commission. That portion of this Number is found to be TRUE. This being a civil proceeding, the Special Master will not make a finding of a violation of a criminal statute as requested to be found in terms of violation of Article 37.10 of the Penal Code, tampering with a governmental record. However, the Special Master does find that [Respondent] willfully made the request of Judge Foreman [sic] to submit a false report to the Commission.

Item 3:

The Parking Attendant Incident

On May 3, 1996, Respondent parked his vehicle in the parking lot west of the Dallas County Administration Building at 411 Elm Street, Dallas, Texas. The parking lot was managed by the Dallas County Historical Foundation, doing business as the Sixth Floor Museum. Respondent was approached by Aaron Thomas, the parking attendant, who informed Respondent that there was a $ 3.00 fee for parking in the lot. Respondent refused to pay, displayed an identification badge, and stated that he was a judge and that he had not paid a parking fee in the past. Thomas informed Respondent that the parking lot was under new management and that Respondent would no longer be entitled to free parking. Respondent replied that he would move his car to the county employee reserve parking space, which Thomas advised him could result in his car being towed by the county. Noting that Thomas was of African-American descent, the Special Master found by a preponderance of the evidence that when Thomas asked Respondent his name, Respondent answered by stating, "Can't you read, black mother-f er?" or "Nigger, can't you f ing read?" Respondent and Thomas then proceeded to the administrative offices of the museum, where Respondent admitted referring to Thomas as a "nigger." Pedro Gonzalez, a security guard,...

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    • United States
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    • October 20, 2006 the Code of Judicial Conduct both on and off the bench in order to maintain the integrity of the judiciary. In re Lowery, 999 S.W.2d 639, 657 (Tex. Rev.Trib.1998, pet.denied). Though today I strike down the enforcement of portions of the Code, the aspirations live on. Judicial accountabi......
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