Informal Proceedings Before the Commission

(a) Applicability. Except where otherwise specified, this rule and Rule 5 apply to misconduct complaints, including complaints involving felonies and official-misconduct misdemeanors, substance abuse complaints, physical incapacity complaints, and mental incapacity complaints. Additional procedures for felonies and official-misconduct misdemeanors are provided in Rule 10. If a complaint involves allegations of substance abuse, physical incapacity, or mental incapacity, the specific requirements and deadlines for substance abuse or incapacity complaints govern over the more general to the extent the rules conflict.

(b) Preliminary Investigation.

(1) Misconduct Complaints. As soon as practicable after a complaint is filed with the Commission alleging misconduct of a judge or judicial candidate, staff:

(A) must conduct a preliminary investigation of the filed complaint;

(B) must draft recommendations for Commission action; and

(C) may, if staff determine that deficiencies in the complaint preclude further investigation, dismiss the complaint without Commission action.

(2) Substance Abuse and Incapacity Complaints. Within 30 days after a complaint alleging substance abuse, physical incapacity, or mental incapacity is filed, staff:

(A) must conduct a preliminary investigation of the filed complaint;

(B) must present in writing to each member of the Commission the results of the investigation; and

(C) may, if staff determine that deficiencies in the complaint preclude further investigation, dismiss the complaint without Commission action.

(3) Deficient Complaint. A deficient complaint includes conduct alleged that, if true, does not constitute misconduct by a judge or judicial candidate.

(c) Staff Report. At least 10 days before a scheduled Commission meeting, staff must provide each member of the Commission a staff report containing:

(1) a list of dismissed complaints under paragraphs (b)(1)(C) and (b)(2)(C);

(2) a list of complaints for which staff have conducted a preliminary investigation under paragraph (b) but the Commission has not issued a Commission report under paragraph (g); and

(3) for each complaint in paragraph (2):

(A) the results of the staff’s preliminary investigation, including whether staff have commenced a full investigation under paragraph (f)(2);

(B) the staff’s recommendations for Commission action regarding each complaint; and

(C) the deadline for the Commission report under paragraph (g).

(d) Staff Recommendations.

(1) Misconduct Complaints. In making recommendations under paragraph (c)(3)(B), staff must recommend dismissal of a misconduct complaint if staff determine that:

(A) the complaint is unfounded or frivolous; or

(B) the deadline for filing the complaint under Rule 3(d) has passed and no good cause exists for a full investigation.

(2) Substance Abuse and Incapacity Complaints. In making recommendations under paragraph (c)(3)(B), staff must recommend dismissal of a substance abuse, physical incapacity, or mental incapacity complaint if staff determine that the complaint is unfounded, is frivolous, or does not bring into question the judge or judicial candidate’s ability to perform the official duties of a judge.

(e) Commission Action on Staff Report.

(1) Misconduct Complaints.

(A) The Commission must dismiss a misconduct complaint without full investigation if it determines from the staff report that:

(i) the complaint is unfounded or frivolous; or

(ii) the complaint is late-filed and there is no good cause for a full investigation.

(B) The Commission must conduct a full investigation of a misconduct complaint under paragraph (f) if the Commission determines from the staff report that:

(i) the complaint is not unfounded or frivolous; and

(ii) good cause exists for a full investigation.

(2) Substance Abuse and Incapacity Complaints.

(A) The Commission must dismiss a substance abuse, physical incapacity, or mental incapacity complaint without full investigation if it determines from the staff report that:

(i) the complaint is unfounded or frivolous; or

(ii) the complaint does not bring into question the judge or judicial candidate’s ability to perform the official duties of a judge.

(B) If the Commission determines that the complaint brings into question the judge or judicial candidate’s ability to perform the official duties of a judge and that it is not unfounded or frivolous, the Commission must provide written notice of the complaint—by mail and email—to the judge or judicial candidate and must subpoena the judge or judicial candidate to appear before the Commission at its next regularly scheduled meeting. Paragraph (f)(4) governs this appearance. Following the judge’s or judicial candidate’s appearance, the Commission must either dismiss the complaint or conduct a full investigation under paragraph (f).

(f) Full Investigation.

(1) In General. In conducting a full investigation, the Commission may:

(A) order the judge or judicial candidate to submit a written response to the complaint;

(B) request that the judge or judicial candidate to appear informally before the Commission under paragraph (4);

(C) allow the complainant to appear informally before the Commission under paragraph (4);

(D) order the deposition of any person under paragraph (5); or

(E) any combination of the above.

(2) When Authorized. When authorized by the Commission, staff may conduct a full investigation before filing the staff report, if based on the preliminary investigation, a full investigation is necessary before the next Commission meeting.

(3) Notice to Judge or Judicial Candidate. Within 7 days after commencing a full investigation, the Commission must send—by mail and email—the judge or judicial candidate:

(A) notice of the full investigation’s commencement;

(B) notice of the nature of the complaint being investigated;

(C) a copy of the complaint and supporting documentation;

(D) notice of the judge’s or judicial candidate’s right to respond within 30 days, to request an informal hearing, and attend, including through counsel, each future Commission meeting at which the complaint is included in the staff report;

(E) a request that the judge or judicial candidate provide an email address for use during the investigation; and

(F) notice of the Commission’s deadline for issuing its report and the earliest potential date the complaint will be submitted for Commission action.

(4) Informal Appearance.

(A) The Commission must notify the judge or judicial candidate of a request for an informal appearance at least 30 days before the date the appearance is scheduled.

(B) The judge or judicial candidate’s testimony may be proffered during the informal appearance and documentary evidence received. No other testimony may be taken.

(C) If proffered, the judge or judicial candidate’s testimony must be under oath and recorded.

(D) The informal appearance of a judge or judicial candidate before the Commission is a closed proceeding, except the judge or judicial candidate may elect to have the appearance open to the public or to persons designated by the judge or judicial candidate. The right to an open appearance does not preclude placing of witnesses under the rule as provided by Texas Rule of Civil Procedure 267.

(E) The judge or judicial candidate may request to appear informally in the judge or judicial candidate’s response.

(F) The Commission must not allow an informal appearance by a complainant without notice to the judge or judicial candidate and an opportunity for the judge or judicial candidate to be heard at the complaint’s informal appearance. Any testimony proffered at the complainant’s informal appearance must be under oath and recorded.

(G) The Commission must furnish a transcribed copy of recorded testimony to the judge or judicial candidate on request within 10 days after the request.

(5) Deposition.

(A) If the Commission orders a deposition, the Commission must serve the order on the person who is the subject of the deposition and the judge or judicial candidate who is the subject of the full investigation. The Commission must serve the deposition order a reasonable time before the deposition.

(B) The order must notify the witness of the date, time, and the place of the deposition or the intent to take the deposition by electronic means. Depositions are governed by Texas Rules of Civil Procedure 190.2 and 199, except that the proceeding is confidential before the filing of formal charges.

(C) The judge or judicial candidate or the witness may object to the deposition in writing. The objection must be presented to the Commission before the time specified for compliance.

(D) The Commission may file an application in a district court to enforce the deposition order.

(g) Commission Report; Disposition of Full Investigation. Except as provided in paragraph (h), the Commission must issue a report and determine any action to be taken regarding the complaint within 120 days after the date of the first Commission meeting at which the complaint was included in the staff report. Each member of the Commission must certify the report by signing the report. The signature may be electronic. The Commission may take the following actions after a full investigation:

(1) dismiss the complaint;

(2) issue a private education order, which may be issued in combination with another sanction or censure;

(3) issue a private admonition;

(4) issue a private warning;

(5) issue a private reprimand;

(6) issue a private censure;

(7) if the subject of the investigation is a judge:

(A) accept the judge’s resignation in lieu of discipline;

(B) upon a finding of good cause, initiate formal proceedings under Rule 5 to publicly sanction, publicly censure, suspend, remove, or retire the judge or prohibit future service as a judge; or

(C) suspend the judge, if the complaint involves a felony or official-misconduct misdemeanor; or

(8) if the subject of the investigation is a judicial candidate and upon a finding of good cause, initiate formal proceedings under Rule 5 to publicly sanction or publicly censure the judicial candidate.

(h) Notice of Commission Decision.

(1) To Judge or Judicial Candidate. The Commission must notify the judge or judicial candidate in writing of:

(A) a dismissal under paragraph (b)(1)(C) or (b)(2)(C) within 5 business days of the dismissal;

(B) dismissal before full investigation under paragraph (e) within 5 business days after the Commission meeting where the Commission dismisses the complaint;

(C) dismissal after full investigation under paragraph (g)(1) within 5 business days after the Commission meeting where the Commission dismisses the complaint;

(D) initiation of a formal proceeding under paragraph (g)(7)(B) or (g)(8) within 5 business days after the Commission meeting where the Commission initiates formal proceedings; or

(E) any other action after full investigation under (g) within 7 business days after the Commission meeting where the Commission determines to take the action.

(2) To Public. As appropriate, the Commission must publish notice of the Commission’s action on the internet. If the Commission plans to publish under this paragraph, the Commission must notify the judge or judicial candidate in the notice provided under paragraph (1). The judge or judicial candidate may object in writing. The Commission must wait at least 5 business days after the notice provided under paragraph (1) to publish.

(i) Extension for Extenuating Circumstances. If extenuating circumstances cause the Commission to fail to timely issue a report and determine the action to be taken regarding the complaint, the Commission may order an extension. The extension must not exceed 240 days from the date of the first Commission meeting at which the complaint was included in the staff report.

(j) Additional Extension for Multiple Misconduct Complaints. If a complaint against a judge or judicial candidate alleges multiple instances of misconduct or the Commission determines multiple misconduct complaints have been submitted against the judge or judicial candidate, the Commission may order an additional extension. The additional extension must not exceed 90 days after the date on which the extension under paragraph (i) expires.