Sheppard, In re

• Decision Date: 14 May 1991
• Docket Number: No. 04-91-00085-CV,04-91-00085-CV
• Citation: 815 S.W.2d 917
• Parties: In re George B. SHEPPARD, Judicial Disciplinary Proceeding.
• Court: Texas Special Court of Review

Page 917

815 S.W.2d 917

In re George B. SHEPPARD, Judicial Disciplinary Proceeding.

No. 04-91-00085-CV.

Special Court of Review,

Appointed by the Supreme Court.

May 14, 1991.

Before J. CURTISS BROWN, C.J., 14th Court of Appeals and CHAPA and GARCIA, JJ., 4th Court of Appeals.

GARCIA, Justice.

This is a case involving the disciplinary action taken by the State Commission on Judicial Conduct against respondent, the Honorable George B. Sheppard. At the time of the incident giving rise to the Commission's investigation and public reprimand of respondent, he was a sitting county court-at-law judge in Dallas County. However, when the order issuing the public reprimand was issued by the Commission on January 16, 1991, he was no longer a sitting judge. Thus, respondent raises two issues for our review: jurisdiction and the sufficiency of the evidence to find any violation warranting a sanction.

Pursuant to article 5, section 1-a of the Constitution of the State of Texas and the enabling statute, section 33.034 of the Government Code, the Supreme Court of Texas appointed three intermediate appellate justices to sit as Special Court of Review to hear evidence from the Commission and respondent. The trial proceeded on a trial de novo basis as that term is used in the appeals of cases from justice courts to county courts. TEX.GOV'T CODE ANN. § 33.034(e) (Vernon 1988). Thus, the findings and conclusions of law and the order of the Commission are unnecessary for a proper review of the case against respondent. A judgment of the justice court is neither affirmed or reversed, but an appeal is taken to county court on a trial de novo basis. Likewise, respondent's appeal and the review of that appeal is not bound to the Commission's findings, conclusions, or order. See Hall v. McKee, 179 S.W.2d 590 (Tex.Civ.App.--Fort Worth 1944, no writ).

The Special Court of Review conducted and concluded its trial de novo hearing on March 21, 1991. Respondent contends that the Commission lacked the jurisdiction to enter the January 16, 1991, order because respondent was no longer sitting as a judge. Both parties rely on a removal proceeding from the State of Michigan to establish or defeat jurisdiction over a proceeding involving a judge who has left the bench. The question before the Michigan Supreme Court was almost identical to the question raised by respondent. See In re Probert, 411 Mich. 210, 308 N.W.2d 773 (1981). The majority of the Michigan court held that the departure of a judge from the bench does not preclude continued proceedings against a former judge. The dissenting opinion stated that the majority was exceeding its constitutional authority by allowing continued proceedings against any former judge. However, the Michigan constitutional provision relating to the judicial tenure commission and removal proceedings, which include suspension and censure, does not address the issue of conduct by retired or former judges. See MICH. CONST., art. VI, §§ 30(1) and 30(2). ¹

The Texas Constitution, however, provides:

(6) A. Any Justice or Judge of the courts established by this Constitution or created by the Legislature as provided in Section I, Article V, of 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. Any person holding such office may be disciplined or censured, in lieu of removal from office, as provided by this section. Any person holding an office specified in this subsection may be suspended from office with or without pay by the Commission immediately on being indicted by a State or Federal grand jury for a felony offense or charged with a misdemeanor involving official misconduct. On the filing of a sworn complaint charging a person holding such office with 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 and persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit on the judiciary or on the administration of justice, the Commission, after giving the person notice and an opportunity to appear and be heard before the Commission, may recommend to the Supreme Court the suspension of such person from office. The Supreme Court, after considering the record of such appearance and the recommendation of the Commission, may suspend the person from office with or without pay, pending final disposition of the charge.

* * * * * *

C. The law relating to the removal, discipline, suspension, or censure of a Justice or Judge of the courts established by this Constitution or created by the Legislature as provided in this Constitution applies to a master or magistrate appointed as provided by law to serve a trial court of this State and to a retired or former Judge who continues as a judicial officer subject to an assignment to sit on a court of this State. Under the law relating to the removal of an active Justice or Judge, the Commission and the review tribunal may prohibit a retired or former Judge from holding judicial office in the future or from sitting on a court of this State by assignment.

TEX. CONST., art. V, § 1-a(6).

Respondent did not renounce his ability to further serve as a retired or former judge assigned to sit in the future. Thus, the Commission continues its jurisdiction over respondent. If the Commission can impose a prohibition against further service by precluding respondent from holding office or from being assigned to hear a case after leaving office, the Commission can continue to maintain jurisdiction over respondent when he has not indicated his future intent on judicial service. Clearly, the Commission maintains jurisdiction over retired and former judges and may discipline such judges in lieu of removing them from office.

Moreover, the Legislature has defined the term "judge." The Government Code provides the following:

(a) In this chapter:

(1) "Commission" means the State Commission on Judicial Conduct.

(2) "Judge" means a justice, judge, master, magistrate, or retired or former judge who is the subject of an investigation or proceeding under Article V, Section 1-a, of the Texas Constitution.

(3) "Special master" means a master appointed by the supreme court under Article V, Section 1-a, of the Texas Constitution.

(b) For purposes of Article V, Section 1-a, of the Texas Constitution, "wilful or persistent conduct that is clearly inconsistent with the proper performance of a judge's duties" includes:

(1) wilful, persistent, and unjustifiable failure to timely execute the business of the court, considering the quantity and complexity of the business;

(2) wilful violation of a provision of the Texas penal statutes or the Code of Judicial Conduct;

(3) persistent or wilful violation of the rules promulgated by the supreme court; or

(4) incompetence in the performance of the duties of the office.

(c) The definition provided by Subsection (b) is not exclusive.

TEX.GOV'T CODE ANN. § 33.001 (Vernon 1988). The Texas Constitution also provides:

(14) The Legislature may promulgate laws in furtherance of the Section that are not inconsistent with its provisions.

TEX. CONST., art. V, § 1-a(14).

"When given the power to implement constitutional provisions, the Legislature may define terms which are not defined in the constitution itself, provided its definitions constitute reasonable interpretations of the constitutional language and do not do violence to the plain meaning and intent of the constitutional framers." 12 TEX.JUR.3d ...