In re Sharp, 12–0003.

• Decision Date: 13 March 2013
• Docket Number: No. 12–0003.,12–0003.
• Citation: 480 S.W.3d 829
• Parties: In re Honorable James Patrick "Jim" SHARP, Jr.
• Court: Texas Special Court of Review

480 S.W.3d 829

In re Honorable James Patrick "Jim" SHARP, Jr.

No. 12–0003.

Special Court of Review Appointed by the Supreme Court.

March 13, 2013.

OPINION

I. INTRODUCTION

Justice MEIER delivered the opinion of the Multidistrict Litigation Panel, in which Justice BRIDGES and Justice MYERS joined.

Over the course of several hours during the evening of January 17, 2012, Petitioner Honorable James Patrick "Jim" Sharp, Jr., a justice on the First Court of Appeals in Houston, contacted or spoke to three individuals associated with the Brazoria County Juvenile Detention Center, a local District Judge, and a Brazoria County Commissioner in an effort to secure the release of an acquaintance's daughter, who was being held at the Juvenile Center overnight.¹ [Exs. 3, 4, 5, 11: 076, 12: 12–42] In light of Justice Sharp's conduct that night, the Brazoria County District Attorney filed a complaint with the State Commission on Judicial Conduct, which performed an investigation, acquired Justice Sharp's written response to a letter of inquiry, and conducted an informal hearing at which Justice Sharp testified. [Exs. 8, 11, 12] On August 30, 2012, the Commission publicly reprimanded Justice Sharp for violating Canons 2B, 4A(1), and 4A(2) of the Texas Code of Judicial Conduct and article V, section 1–a(6) A of the Constitution of the State of Texas. See Tex. Const. art. V, § 1–a (6)A; Tex.Code Jud. Conduct, Canons 2B, 4A(1), 4A(2), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. B (West 2005 & Supp.2012). [Ex. 13]

Thereafter, Justice Sharp initiated a review of the Commission's decision; the Chief Justice of the Supreme Court of Texas appointed this Special Court of Review; and the Commission's Examiners charged Justice Sharp with violating Code of Judicial Conduct Canons 2B, 3B(4), 4A(1), and 4A(2) and article V, section 1–a(6) A of the Texas constitution.² See Tex. Gov't Code Ann. § 33.034(a) –(d) (West Supp.2012); Tex.R. Rem'l/Ret Judges. 9(a)–(b). This Special Court of Review convened a trial de novo on January 14, 2013—Justice Sharp stipulated to the admission of the Examiners' exhibits, including the transcript of the informal hearing previously conducted by the Commission, and Stephen A. Tew, M.D. and Justice Sharp testified. See Tex. Gov't Code Ann. § 33.034(e), (h) ; Tex.R. Rem'l/Ret. Judges 9(c). [1/14 Trial: 6, 13, 36, 74] Having considered the pleadings, all of the evidence, the arguments of counsel, and the post-trial briefs, the Special Court of Review timely issues this decision and directs its publication. See Tex. Gov't Code Ann. § 33.034(h) ; Tex.R. Rem'l/Ret. Judges 9(d), (e)(2).

II. RELEVANT STANDARDS AND BURDEN OF PROOF

The Texas constitution provides that a judge may be disciplined for a willful violation of the Code of Judicial Conduct or for willful or persistent conduct that is clearly inconsistent with the proper performance of his or her duties or that casts public discredit upon the judiciary or administration of justice. Tex. Const. art. V, § 1–a (6)A. For purposes of article V, section 1–a, "willful or persistent conduct that is clearly inconsistent with the proper performance of" a judge's duties includes a willful violation of a provision of the Code of Judicial Conduct. Tex. Gov't Code Ann. § 33.001(b)(2) (West Supp.2012).

Willful conduct requires a showing of intentional or grossly indifferent misuse of judicial office, involving more than an error of judgment or lack of diligence. In re Davis, 82 S.W.3d 140, 148 (Tex.Spec.Ct.Rev.2002) ; In re Bell, 894 S.W.2d 119, 126 (Tex.Spec.Ct.Rev.1995). A judge need not have specifically intended to violate the Code of Judicial Conduct; a willful violation occurs if the judge intended to engage in the conduct for which he or she is disciplined. Davis, 82 S.W.3d at 148 ; In re Barr, 13 S.W.3d 525, 539 (Tex.Rev.Trib.1998).

As this review is governed to the extent practicable by the rules of law, evidence, and procedure that apply to the trial of a civil action, the Examiners had the burden to prove the charges against Justice Sharp by a preponderance of the evidence. See Tex. Gov't Code Ann. § 33.034(f) ; In re Hecht, 213 S.W.3d 547, 560 (Tex.Spec.Ct.Rev.2006) ; Davis, 82 S.W.3d at 142.

III. CHARGE I—CANON 2B

The Examiners charged Justice Sharp in Charge 1 with violating the following parts of Canon 2B: "A judge shall not allow any relationship to influence judicial conduct or judgment, A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." Tex.Code Jud. Conduct, Canon 2B. [Ex. 14]

A. Lending Prestige of Judicial Office

The evidence demonstrates that an acquaintance of Justice Sharp contacted him sometime between 7:00 and 7:30 p.m. on the evening of January 17, 2012, told him that her daughter had been arrested for shoplifting several items from a department store, and expressed concern that her daughter was being held overnight at the Juvenile Center. [Exs. 11: 076, 12: 15, 17] Justice Sharp called the Juvenile Center multiple times over the course of several hours that same night and spoke to Corey Davis and Rene Munoz, Juvenile Center employees, and to Chad Ward, the Assistant Director of Juvenile Probation. [Exs. 3, 4, 5, 11: 77–78, 12: 17] Davis, Munoz, and Ward all recounted that Justice Sharp identified himself as a judge on the court of appeals and either demanded that the juvenile be released or inquired about what needed to be done to secure her release. [Exs. 3, 4, 5] According to Davis, after he informed Justice Sharp that the juvenile could not be released that night because she had been arrested on a Class B theft charge, Justice Sharp stated in an angry tone, "[D]o you know who your [sic] talking to, you better release her tonight!" [Ex. 4] According to Munoz, he received a phone call from a person "claiming to be Justice John [sic] Sharp from the Court of Appeals." [Ex. 5] Munoz recounted in his statement that Justice Sharp explained "his role in the judicial organizational chart, stating he was over 10 counties." [Ex. 5] Likewise, according to Ward, who also notified Justice Sharp that the juvenile would not be released until the morning, Justice Sharp told him, "I am a judge in the Court of Appeals. I have authority over your judges along with every judge in ten other counties in this area." [Ex. 3] Ward also recalled that Justice Sharp had told him that he had messaged Brazoria County Commissioner Donald "Dude" Payne and proclaimed, "You'll have picked the wrong little girl that has friends in high places to mess with." [Ex. 3]

At some point between conversations with the Juvenile Center, Justice Sharp left a voicemail with and sent a text message to Commissioner Payne. [Ex. 12; 29–36] In the voicemail, Justice Sharp identified himself, said that his friend's daughter "got popped" for shoplifting, and asked for Commissioner Payne's help because he "probably know[s] who to call to make the keys go open." [1/14 Trial: 100–01] Justice Sharp explained to Commissioner Payne, "There's just really no sense in having a 15–year–old girl in jail tonight in the Brazoria Juvi lockup." [1/14 Trial: 101] In his text message to Commissioner Payne, Justice Sharp stated, "You don't release 15 y[ear] olds accused of simple shoplifting ... on the request of an Appeals Ct justice? Serious problems there, Dude." [Ex. 2]

At some point the same night, Justice Sharp also left a voicemail with and sent text messages to District Court Judge Ben Hardin. [Ex. 12: 35–39] Justice Sharp said that his friend's fifteen-year-old daughter had been arrested and was at the Juvenile Center and that he was "hoping it's just as easy for you to make a call and say 'Let the gal loose.[']" [1/14 Trial: 102] Justice Sharp said, "So if you can—on your—your verbal authority, get that done, I would, you know—you know, there's a lot of things I'll do, and none of those things are wrong." [1/14 Trial: 102] In a text message to Judge Hardin, Justice Sharp wrote, "Brazoria County Juvie folks are n[o]t just arrogant but ignorant. When an Appeals Court Justice calls and identifies himself and they then refer to me as "Mr" Sharp, it bespeaks a fundamental misunderstanding of respect and pecking order!" [Exs. 6, 12: 37–38]

Justice Sharp acknowledged at trial that he repeatedly invoked his judicial title in his communications over the course of the evening and confirmed on several occasions that his goal was to secure the juvenile's release that night. [1/14 Trial: 82, 88; Exs. 11: 78–79, 12: 76] Although he explained that he invoked his judicial title to ensure that the person he was speaking with knew that he was part of the justice system and not some "Joe Schmo down the street," Justice Sharp conceded that his conduct could have been interpreted differently. [1/14 Trial: 82–83] Justice Sharp testified that he did not intend to lend the prestige of his judicial office to advance the private interest of his acquaintance, but this alone is not dispositive of our inquiry; the evidence shows that Justice Sharp intended to engage in the communications detailed above. See Davis, 82 S.W.3d at 148 ; Barr, 13 S.W.3d at 539.

Accordingly, we find that the Examiners established by a preponderance of the evidence that Justice Sharp willfully violated Canon 2B by lending the prestige of his judicial office during his effort to secure the release of his acquaintance's daughter from the Juvenile Center. See Tex.Code Jud. Conduct, Canon 2B.

B. Allowing Relationship to Influence Judicial Conduct

Justice Sharp mentioned in both voicemails that the daughter of his "friend" had been arrested. [1/14 Trial: 100–01] He explained that he had met the juvenile's mother because of her involvement in Brazoria County politics and that he knew the juvenile's grandmother, who was the chairman of the Brazoria County Democratic Party. [1/14 Trial: 92–93] Justice Sharp offered to go to the Juvenile Center to act as the magistrate for his acquaintance's daughter, but ...