Jimenez, In re

• Citation: 841 S.W.2d 572
• Parties: In re Honorable Tony JIMENEZ, Judge of County Court at Law Number Seven of Bexar County.
• Decision Date: 16 November 1992
• Court: Special Court of Review

Page 572

841 S.W.2d 572

In re Honorable Tony JIMENEZ, Judge of County Court at Law Number Seven of Bexar County.

Special Court of Review Appointed by the Supreme Court.

Nov. 16, 1992.

Mark Stevens, Stephanie L. Barclay, San Antonio, for Judge Tony jiminez.

Robert C. Flowers, Ravelle Neary, William E. Hornung, Austin, for State Com'n on Judicial Conduct.

OPINION

COHEN, Justice.

When a police officer called a judge's decision "chickenshit," ¹ it launched a remarkable series of events resulting in a police officer being accused of unprofessional conduct, perjury, and racial discrimination; a judge being admonished for violating rules of ethics; and ultimately, this appeal. This special court of review was appointed pursuant to TEX.GOV'T CODE ANN. § 33.034 (Vernon 1988) to conduct a trial de novo of the Texas Commission on Judicial Conduct's charges against the Honorable Tony Jimenez, Judge of County Court at Law Number Seven of Bexar County. The Commission privately admonished Judge Jimenez for violating Canon 2 B of the Code of Judicial Conduct, which provides, "A judge should not lend the prestige of his ... office to advance private interests of himself...." TEXAS SUPREME COURT CODE OF JUDICIAL CONDUCT, Canon 2, subd. B (1974) [hereinafter TEX.CODE OF JUDICIAL CODE]. The Commission found Judge Jimenez had "a private interest in retaliating" against San Antonio Police Officer Michael Heim because Heim called one of the judge's decisions "chickenshit" and that Judge Jimenez used his judicial office "to bring notoriety to (his) opinion about Officer Heim," in violation of Canon 2 B.

We find that Judge Jimenez's statements accusing Heim of perjury and selective prosecution were allowed by Canon 4 B of the Code. TEX.CODE OF JUDICIAL CONDUCT, Canon 4, subd. B (1974). Moreover, the Commission has not convinced us that any of Judge Jimenez's statements were motivated primarily by a private interest in retaliating against Heim for his criticism. Thus, we find Judge Jimenez not guilty of the charges against him.

PROCEDURAL MATTERS

The Commission issued its sanction on July 10, 1992, and Judge Jimenez timely appealed. TEX.GOV'T CODE ANN. § 33.034(b). On August 10, Texas Supreme Court Chief Justice Phillips appointed us to preside. TEX.GOV'T CODE ANN. § 33.034(c).

By agreement, the Commission filed its charging document on August 31, 1992. TEX.GOV'T CODE ANN. § 33.034(d). That document included a new charge against Judge Jimenez, one that had not been heard by the Commission. The new charge alleged the judge had violated TEX.PENAL CODE ANN. § 36.06 (Vernon 1989) by threatening Suzanne Hildebrand with retaliation because of her service as a witness, prospective witness, or informant. Ms. Hildebrand swore that the judge "alluded to the fact that I should mind my own business and stay out of the Heim affair because my husband could lose a lot of court appointments if I didn't." The Commission received Ms. Hildebrand's charge on June 9, 1992, only three days before Judge Jimenez's appearance there. The Commission did not hold a hearing on Ms. Hildebrand's allegations then because Judge Jimenez had not had time to respond.

We set the case for trial de novo on September 18, in compliance with the requirement that the case be tried within 30 days of the date the charging document was filed. TEX.GOV'T CODE ANN. § 33.034(h).

Judge Jimenez moved to strike the new allegation. He asserted two reasons: 1) Hearing the new allegation in the special court of review would deprive him of his valuable statutory right to be heard before the Commission on those charges; and 2) the new allegations constituted a new ground of recovery that was not pleaded before the Commission, a procedure specifically prohibited by TEX.R.CIV.P. 574a. We granted the motion to strike on both grounds. We hold that, although the new allegation was factually connected with the controversy heard before the Commission, it was sufficiently different in its facts, its timing, its witnesses, and its legal basis that it constituted new matter, in violation of TEX.R.CIV.P. 574a. ² In addition, we hold that hearing the new allegation before the special court of review would deprive Judge Jimenez of his valuable statutory right to have the new matter adjudicated in the first instance by the Commission. We express no opinion whatever on the merits of Ms. Hildebrand's allegation, and nothing in this opinion prejudices the Commission's right to proceed against Judge Jimenez on that allegation.

FACTS

On October 2, 1991, Judge Jimenez heard the defendant's motion to suppress evidence in County Criminal Court at Law Number Seven of Bexar County, in The State of Texas v. John A. Ramos, no. 482359. Ramos was charged with driving while intoxicated. The main State's witness at the hearing was San Antonio Police Department Officer Michael Heim, the arresting officer. Heim left before Judge Jimenez announced his ruling. Ramos contended that evidence was seized in an illegal arrest. Judge Jimenez granted the motion to suppress. The case was dismissed.

That afternoon, Officer Heim phoned Abel Trevino, who was the coordinator of court number seven and a social acquaintance of Officer Heim. During their conversation, Trevino told Heim the case had been dismissed. Heim stated that was a "chickenshit" decision. Heim said nothing else about the case or about Judge Jimenez, and after that comment, Heim and Trevino "just talked about some general matters."

On October 3, Trevino told Judge Jimenez of Heim's statement. Judge Jimenez had Mr. Trevino testify under oath in open court under cause no. 482359 about the phone conversation. The judge stated he would write the Chief of Police, asking that the department "do something with respect to (Heim's) commentary." Assistant District Attorney Robert Lipo was in the courtroom and asked that Judge Jimenez furnish the District Attorney's office a copy of the letter.

On October 10, 1991, Judge Jimenez wrote to the chief of police and sent a copy to the District Attorney. In the letter (attached as Appendix 1), Judge Jimenez stated:

I take particular offense to this comment and find that this raises a question as to the professionalism of Officer Heim. This court has always treated law enforcement with the utmost in courtesy and professionalism and I will not allow this comment to go unchallenged. I would hope that after you review the enclosed transcript your office will take the appropriate personnel actions as may be required under San Antonio Police Department policy. Please advise me as to your decision in this matter.

Judge Jimenez received no response. On October 29, he wrote again to the chief of police. (Appendix 2) Judge Jimenez informed the chief that he had instructed the District Attorney's office to transfer from his docket any cases involving Officer Heim as the arresting officer. In addition, he accused Heim of giving false testimony under oath in court and of racial discrimination by selectively prosecuting Hispanic males for DWI. He stated:

Officer Heim has lost credibility with this court. I found his comment on a prior ruling of this court to be inappropriate and objectionable. I have found that his testimony in every DWI case contains the same factual circumstances, leading me to believe that he is not being honest in his responses to questions propounded to him. Further, and even more troubling, is the fact that his initial stops appear to be selectively directed against minorities, specifically Hispanic males, who are arrested under the same or similar circumstances.

Judge Jimenez sent a copy to the District Attorney.

On December 5, a television news report in San Antonio featured the controversy between Judge Jimenez and Officer Heim. On December 7, a newspaper article appeared concerning Judge Jimenez's accusations against Officer Heim in the letters. Someone had delivered the letters to the media.

After these reports, rumors circulated that attorneys would subpoena Judge Jimenez to testify for the defense in DWI cases in which Officer Heim testified for the prosecution. On March 4, 1992, Judge Jimenez was subpoenaed by defense attorneys in a driving while intoxicated case in County Court at Law Number Nine of Bexar County, cause no. 505296, styled The State of Texas v. Steve O. Delavega. Officer Heim testified for the prosecution. Judge Jimenez testified as a character witness that Heim had a bad reputation for truthfulness and veracity and stated his opinion about Officer Heim's DWI enforcement. The State did not move to quash the subpoena and did not contest the judge's right to testify.

Judge Jimenez was interviewed that day on television about his testimony. He stated, "I did not place a high regard for his veracity and truthfulness; therefore, I was biased against the officer." On March 5, Judge Jimenez was interviewed on radio about his testimony and Heim's DWI enforcement.

It is important to note that the Commission has never alleged that Judge Jimenez's accusations against Heim were false in any respect. In fact, evidence showed it was common knowledge that some Bexar County judges and prosecutors believed Heim was committing perjury. Lt. Manuel Longoria, commander of the Internal Affairs Division of the San Antonio Police Department, was assigned to investigate Judge Jimenez's accusations against Officer Heim. He and his investigator talked to all county court judges in Bexar County about Heim. The judges would only speak in confidence, refusing to go "on the record" against Heim because they "didn't want the problems" Judge Jimenez faced after he accused Heim. Specifically, they did not want to be sanctioned by the Commission. Lt. Longoria interviewed judges, clerks, and prosecutors who had the same concerns Judge Jimenez had about Heim's credibility. Judge Jimenez, however, was the only one who was willing to come forward. The refusal of all the prosecutors and all the other judges to...