In re Rose

• Decision Date: 10 June 2004
• Docket Number: No. 87.,87.
• Parties: In re Charles Ronald ROSE, Justice of the Peace, Precinct 1-A, Dallas County, Texas.
• Court: Texas Supreme Court

144 S.W.3d 661

In re Charles Ronald ROSE, Justice of the Peace, Precinct 1-A, Dallas County, Texas.

No. 87.

Review Tribunal Appointed by the Supreme Court.¹

June 10, 2004.

Rehearing Overruled July 15, 2004.

Affirmed Nonember 5, 2004.

Henry Ackels, Ackels & Ackels, L.L.P., Dallas, for petitioner.

John J. McKetta, III, Jennifer Piskun Johnson, Graves, Dougherty, Hearon & Moody, P.C., Austin, for respondent.

Sitting: NELDA RODRIGUEZ, Justice, Chair, TOM GRAY, Justice, SAM GRIFFITH, Justice, STEVE McKEITHEN, Justice, TERRY McCALL, Justice, BRIAN P. QUINN, Justice, JOSH R. MORRISS, III, Justice.

OPINION

Opinion by TOM GRAY, Justice.

This proceeding concerns the recommendations of the State Commission on Judicial Conduct ("the Commission") that Petitioner, the Honorable Charles Ronald Rose, Justice of the Peace, Precinct 1-A, Dallas County, Texas, be removed from that office and that this Review Tribunal prohibit him from holding judicial office in the future.² Judge Rose petitions the Tribunal to reject the Commission's recommendations. The Examiner responds on behalf of the Commission through special counsel.³ We will deny Judge Rose's petition, will order his removal from office, and will order that he be prohibited from holding judicial office in the future.

Judge Rose's case has received international, national, regional, and extensive local attention.⁴

LEGAL BACKGROUND

In general, judicial discipline proceedings have "four important objectives: to deter injudicious conduct; to provide a means by which judges can be disciplined in appropriate cases; to vindicate by an independent report a judge who has been unfairly criticized; and, most important of all, to enable aggrieved litigants or others to air their complaints."⁵ DAVID PANNICK, JUDGES 97 (1987). In the Texas Constitution, in particular, "[t]he general purpose of the judicial conduct provisions was to encourage judicial accountability and trustworthiness...." JANICE C. MAY, THE TEXAS STATE CONSTITUTION: A REFERENCE GUIDE 207 (1996). Their purpose "is not necessarily to punish, but to maintain, if not enhance, 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." In re Canales, 113 S.W.3d 56, 64 (Tex.Rev.Trib.2003, pet.denied);⁶ In re Barr, 13 S.W.3d 525, 533 (Tex.Rev.Trib.1998, pet.denied) (op. on orig. submission); accord In re Thoma, 873 S.W.2d 477, 484-85 (Tex.Rev.Trib.1994, no pet.).

Accordingly, the Texas Constitution provides a mechanism for the removal of judges. See Tex. Const. art. V, § 1-a(6)-(14). The Constitution provides, in relevant part:

Any Justice or Judge of the courts established by this Constitution... may, subject to the other provisions hereof, be removed from office for willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of the office, willful violation of the Code of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.

Id. § 1-a(6)(A).⁷ "[T]he electorate itself has approved this limitation on its ability to elect the judge of its choosing." In re Lowery, 999 S.W.2d 639, 662 (Tex.Rev.Trib.1998, pet.denied).

In that connection, the Constitution establishes Texas's State Commission on Judicial Conduct. See Tex. Const. art. V, § 1-a(2); Tex. Gov't Code Ann. § 33.002(a) (Vernon 2004); see also id. § 33.001(a)(4) (Vernon 2004). The Constitution provides that "[t]he Legislature may promulgate laws in furtherance of" Section 1-a "that are not inconsistent with its provisions." Tex. Const. art. V, § 1-a(14). The Legislature has done so in Texas Government Code Chapter 33, which governs proceedings before the Commission. See generally Tex. Gov't Code Ann. §§ 33.001-33.051 (Vernon 2004).⁸ The Constitution also provides that "[t]he Supreme Court shall by rule provide for the procedure before the Commission...." Tex. Const. art. V, § 1-a(11). The Court has done so in promulgating the Texas Rules for Removal or Retirement of Judges.⁹ See Tex.R. Rem'l/Ret. Judg. (West 2004). The Legislature has further mandated that the Commission publish an annual report including "an explanation of the commission's processes." Tex. Gov't Code Ann. § 33.005(a), (b)(3); e.g., State Comm'n Jud. Conduct Ann. Rep. (2003), http:// www.scjc.state.tx.us/ANNUAL — REPORT — 2003.pdf (Nov. 17, 2003). Because "the Commission is in the best position to describe the judicial disciplinary process," its reports are considered authoritative. 48 Robert P. Schuwerk & Lillian B. Hardwick, Texas Practice: Handbook of Texas Lawyer and Judicial Ethics ch. 33 introd. at 1133 (2003); see Lowery, 999 S.W.2d at 652 n. 4.

The Texas Constitution provides that "[t]he judicial power of the State shall be vested" in part "in Courts of Justices of the Peace." Tex. Const. art. V, § 1; see id. § 19. The Section 1-a removal procedure thus applies to justices of the peace. Id. § 1-a(6); Lowery, 999 S.W.2d at 650.

Section 1-a mandates that "[t]he Commission shall keep itself informed as fully as may be of the circumstances relating to the misconduct ... of particular persons" subject to removal under the section. Tex. Const. art. V, § 1-a(7). The Commission must "receive complaints or reports, formal or informal, from any source in this behalf." Id.; see Tex. Gov't Code Ann. § 33.0211 (written complaints); Thoma, 873 S.W.2d at 483. The Commission may act "upon receipt of a verified statement, upon its own motion, or otherwise." Tex.R. Rem'l/Ret. Judg. 3(a).

Upon receipt of information relating to misconduct, the Commission must "make such preliminary investigations as it may determine." Tex. Const. art. V, § 1-a(7). "The commission may conduct a preliminary investigation of the circumstances surrounding an allegation or appearance of misconduct ... of a judge to determine if the allegation or appearance is unfounded or frivolous." Tex. Gov't Code Ann. § 33.022(a); see Tex.R. Rem'l/Ret. Judg 3(a); Thoma, 873 S.W.2d at 483. This preliminary investigation must be "as is appropriate to the circumstances." Tex.R. Rem'l/Ret. Judg. 3(a).

After an initial screening, an allegation or appearance of misconduct is "dismissed administratively when a complainant's writing or claim fails to state an allegation of judicial misconduct, or the Commission has no jurisdiction over the judge." STATE COMM'N JUD. CONDUCT ANN. REP. 10 (2003); see id. at 14; SCHUWERK & HARDWICK, HANDBOOK OF TEXAS LAWYER AND JUDICIAL ETHICS § 35.01, at 1154. "For example, the Commission lacks jurisdiction if a complaint concerns a federal judge or someone who is not a judge, such as a police officer." SCHUWERK & HARDWICK § 35.02, at 1162 n.23.

"If, after conducting a preliminary investigation ..., the commission determines that an allegation or appearance of misconduct ... is unfounded or frivolous, the commission" must "terminate the investigation." Tex. Gov't Code Ann. § 33.022(b); see Tex.R. Rem'l/Ret. Judg. 3(b). "The Commission may dismiss a case after conducting an investigation and review of the allegations." State Comm'n Jud. Conduct Ann. Rep. 10 (2003). "Reasons for these dismissals include insufficient or no evidence of misconduct," that "the judge was acting within his or her discretion," or that "the allegation is an issue for appellate review." Id. The standard of sufficiency of the evidence for purposes of dismissal is "much lower" than the preponderance of the evidence. Schuwerk & Hardwick, Handbook of Texas Lawyer and Judicial Ethics § 35.02, at 1162 n.25.

If the Commission does not determine that the allegation or appearance of misconduct is unfounded or frivolous, then the Commission must "conduct a full investigation of the circumstances surrounding the allegation or appearance of misconduct." Tex. Gov't Code Ann. § 33.022(c)(1)(A); see Tex.R. Rem'l/Ret. Judg. 4(a). Likewise, if the Commission determines that "sufficient cause exists to warrant full inquiry into the facts and circumstances indicating that a judge may be guilty of willful or persistent conduct which is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or the administration of justice," the Commission must "conduct a full investigation into the matter." Tex.R. Rem'l/Ret. Judg. 4(a). Upon commencement of a full investigation, the Commission may order the judge to "submit a written response to the allegation or appearance of misconduct." Tex. Gov't Code Ann. § 33.022(c)(2)(A)(i); see Tex.R. Rem'l/Ret. Judg. 4(c). The Commission may also order the judge to "appear informally before the commission." Tex. Gov't Code Ann. § 33.022(c)(2)(A)(ii); see Tex.R. Rem'l/Ret. Judg. 6. "To the extent that they do not conflict with the Rules for Removal or Retirement of Judges, the civil rules of procedure" govern proceedings before the Commission. Canales, 113 S.W.3d at 66; accord Barr, 13 S.W.3d at 533 (op. on orig. submission); see Tex. Gov't Code Ann. §§ 33.022(j), 33.027; Tex.R. Rem'l/Ret. Judg. 10(d)(1).

"After such investigation as it deems necessary, the Commission may in its discretion issue a private or public admonition, warning, reprimand, or requirement that the" judge "obtain additional training or education." Tex. Const. art. V, § 1-a(8); see Tex. Gov't Code Ann. § 33.001(a)(10). Such "[a] sanction is remedial in nature." Tex.R. Rem'l/Ret. Judg. 1(e). "It is issued prior to the institution of formal proceedings to deter similar misconduct by a judge or judges in the future, to promote proper administration of justice, and to reassure the public that the judicial system of this state neither permits nor condones misconduct." Id.

"All papers filed with and proceedings before the Commission" are "confidential, unless otherwise provided by law." Tex. Const. art. V, § 1-a(10)...