Thoma, In re

Citation873 S.W.2d 477
Decision Date15 March 1994
Docket NumberG,No. 1,No. 62,1,62
PartiesIn re John M. THOMA, Judge, County Court at Lawalveston County, Texas, Respondent. Review Tribunal, Appointed by the Supreme Court
CourtSupreme Court of Texas

BARAJAS, Chief Justice, delivered the opinion of the Review Tribunal, in which BOYD, Presiding Justice, BROOKSHIRE, FARRIS, SMITH, LEE and HOLCOMB, Justices, join. 1

This action results from the recommendation by the State Commission on Judicial Conduct that Respondent, John N. Thoma, be removed as Judge of the County Court at Law No. One of Galveston County, Texas, and further, that he be prohibited from holding judicial office in the future. 2 Respondent has rejected the findings, conclusions, and recommendations of the Commission, and in 28 points of error, challenges the findings and ultimate recommendation that he be removed from office. We affirm the Commission's recommendation.


The comprehensive record in the instant case reflects that the State Commission on Judicial Conduct adopted the findings of fact which were entered by a Special Master. The Special Master found 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 further that Respondent willfully violated various provisions of the Texas Code of Judicial Conduct. See TEXAS SUPREME COURT, CODE OF JUDICIAL CONDUCT, Amended to April 1, 1988, reprinted at TEX.GOV'T CODE ANN., title 2, Subt. G, Appendix B (Vernon 1988). Specifically, the Special Master found that Respondent entered into a conspiracy to extort money from a party in an action over which he exercised judicial authority. The Special Master further found that Respondent engaged in ex parte communications with criminal defendants relating to their then-pending criminal proceedings to waive fees, fines, court costs, and attorney's fees, and conducted ex parte proceedings in making a misleading docket entry, in granting a criminal defendant's application for restricted driver's license, in granting a criminal defendant a new trial, in reducing criminal defendants' sentences and terminating their probation, in waiving requirements of class attendance for D.W.I. defendants, in granting criminal defendants credit for "jail time served" in excess of time actually served, and in waiving and/or reducing fees, fines, and court costs and attorney's fees for criminal defendants. The above findings and the supporting evidence will be detailed in the discussion of each of Respondent's points of error.


As this is the first formal removal proceeding instituted under TEX. CONST. art. V, § 1-a, discussion of the procedural aspects of the process is essential to a full and complete understanding of the action below.

Generally, a complaint is received in writing alleging misconduct on the part of a Texas jurist. Alternatively, a complaint may be initiated on the Commission's own motion. RULES FOR THE REMOVAL OR RETIREMENT OF JUDGES, 56 Tex.B.J. 823 (1993), Rule 3. An evaluation and/or preliminary investigation is conducted to determine whether the complaint is within the jurisdiction of the Commission and is of potential merit. Id., Rule 3. If found to be within the Commission's jurisdiction and to be of merit, a full investigation is commenced with notice being given to the judge. Id., Rule 4. A response from the judge is requested. Id., Rule 4(c). Subsequent to a full investigation, a decision is made to place the matter on the Commission's regular agenda. Materials are prepared for the Commission and the matter presented for its consideration at an informal hearing at which time the judge may be afforded an opportunity to make an appearance. Id., Rule 6(a). The Commission, after considering all materials presented, including comments from the judge under review if such comments have been requested and received, renders its decision to dismiss the complaint, issue an appropriate informal sanction, 3 or institute formal proceedings. If informal sanctions are imposed, the judge and the complainant are notified. The judge may request review of the informal sanction by a special court of review. 4 RULES FOR THE REMOVAL OR RETIREMENT OF JUDGES, Rule 9(a).

In the alternative, the Commission may institute formal proceedings in which case notice of formal proceedings are served on the judge in question. Id., Rule 10(a). A verified answer is due by the judge to the Commission within 15 days from the date of service. Id., Rule 10(b). The Commission sets a time and place for its formal hearing, giving notice to the judge and the Texas Supreme Court at least 20 days prior to the scheduled date of the formal hearing. Id., Rule 10(c)(1). The Commission may direct that the formal hearing be before it or before a special master. Id., Rule 10(c)(1). If the Commission directs that the hearing shall be before a special master, it shall make a written request to the Supreme Court to appoint such a special master. Id., Rule 10(c)(2). The Supreme Court is to appoint a special master within 10 days from such a request. Id., Rule 10(c)(2). If a formal hearing is conducted before a special master, the master is to furnish the Commission and the judge its findings and recommendation. Id., Rule 10(h)(1). Objections, if any, to the report of the special master are due within 15 days with additional hearings, if any, to be held on 10 days' notice. RULES FOR THE REMOVAL OR RETIREMENT OF JUDGES, Rule 10(i) and (j). Subsequent to the conclusion of all hearings, the Commission renders its decision to dismiss the complaint, publicly censure the judge, or recommend the removal or the retirement of the judge. Id., Rule 10(m). Upon making a determination to recommend the removal or retirement of a judge, the Commission is to request the Chief Justice of The Texas Supreme Court to appoint a review tribunal, composed of seven justices, selected by lot from the courts of appeals of our state. Id., Rules 1(h); 11; 12(a). Within 90 days from the date the record is filed with the review tribunal, it shall order public censure, retirement, or removal, as it finds just and proper, or wholly reject the recommendation. Id., Rule 12(h). A judge may appeal a decision of the review tribunal to the Texas Supreme Court under the substantial evidence rule. Id., Rule 13.

The record in the instant case establishes that on October 6, 1992, Respondent was notified in writing that an investigation was being commenced regarding his alleged acts of judicial misconduct. On November 6, 1992, an informal hearing was conducted at which time Respondent testified in his own behalf. On December 16, 1992, Notice of Formal Proceedings was served on the judge. On January 12, 1993, upon request of the Commission, the Texas Supreme Court appointed the Honorable Oliver S. Kitzman, Senior District Judge, as Special Master to hear evidence on the charges and report thereon to the Commission. Following discovery and additional investigation, the judge was served with the Commission's First Amended Notice of Formal Proceedings which alleged wrongdoing in 14 additional cases then pending before the judge. On June 1-4, 1993, a formal hearing on the merits was conducted before the Special Master at the Galveston County Courthouse, Galveston, Texas. On January 13, 1976, the Special Master filed his findings with the Commission in which he concluded that a preponderance of the evidence showed Respondent to have engaged in judicial misconduct, as alleged in the Commission's First Amended Notice of Formal Proceedings. On December 17, 1993, the Commission agreed with and affirmed the Special Master's findings of fact. Thereafter, on December 17, 1993, the State Commission on Judicial Conduct filed its findings and conclusions with this Review Tribunal seeking review of its recommendation that Respondent be removed from office, and further, that he be prohibited from holding judicial office in the future.

A. Burden of Proof Before Special Master

In In re Brown, the Supreme Court of Texas held that judicial disciplinary proceedings are not criminal proceedings, since the function of the Judicial Qualifications Commission, the predecessor of the current State Commission on Judicial Conduct, is not to punish but to maintain the high quality of the judiciary. In re Brown, 512 S.W.2d 317, 319 (Tex.1974), citing In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954); McDaniel v. State, 9 S.W.2d 478 (Tex.Civ.App.--Texarkana 1928, writ ref'd). While the Texas Code of Judicial Conduct and the Rules for the Removal or Retirement of Judges have both undergone numerous changes since Brown, we nonetheless adhere to the above holding and reaffirm the principle that judicial conduct proceedings are not criminal in nature, not simply because their purpose is not necessarily to punish, but also to maintain the honor and dignity of the judiciary and to uphold the administration of justice for the benefit of the citizens of Texas. See generally In re Brown, 512 S.W.2d at 319; In re Coruzzi, 95 N.J. 557, 472 A.2d 546 (N.J.1984), appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed.2d 8 (1984); In re Diener, 268 Md. 659, 304 A.2d 587 (Md.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974); Sharpe v. State, 448 P.2d 301 (Okla.Jud.Ct.1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1011, 22 L.Ed.2d 216 (1969). In that regard, the burden was upon the Examiner for the Texas Commission on Judicial Conduct to establish, before the Special Master, the allegations against Respondent by a preponderance of the evidence. In re Brown, 512 S.W.2d at 319-20; see also In re King,...

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