Formal Proceedings Before the Commission

(a) Docket Entry. If the Commission, upon a finding of good cause, initiates a formal proceeding under Rule 4 (g)(7)(B) or (g)(8), the Commission must docket the formal proceeding as: “Before the State Commission on Judicial Conduct Inquiry Concerning a Judge or Judicial Candidate, No. ”.

(b) Notice Contents. The Commission’s notice of a formal proceeding required under Rule 4(h)(1)(D) must state:

(1) the charges against the judge or judicial candidate;

(2) the alleged facts upon which such charges are based;

(3) if the charges are based on the judge’s persistent or willful violation of Article 17.15 of the Code of Criminal Procedure, that the Commission will, within 21 days, recommend to the Supreme Court that the judge be suspended from office;

(4) the specific standards the Commission contends the judge or judicial candidate violated;

(5) that the judge or judicial candidate has the right to file a written answer to the charges within 15 days after service of the notice; and

(6) instructions for how to file an answer, including the name and contact information of the clerk.

(c) Service of Notice.

(1) General Rule. The notice must be served on the judge or judicial candidate by personal service by a person designated by the Chairperson.

(2) Service by Mail. The Chairperson may permit service by registered or certified mail if the designated person made reasonable unsuccessful efforts to effectuate service over a period of 10 days and submits a sworn statement explaining those efforts. Service by mail must be addressed to the judge or judicial candidate’s last known residence and, if a judge, to the judge’s chambers. The envelope must be marked “personal and confidential.” Service by mail is complete upon deposit of the notice in the mail.

(3) Notice to Clerk. The designated person must promptly notify the clerk of the date of personal service or, when permitted, the date of mailing.

(d) Answer. The judge or judicial candidate may file with the Commission an answer to the charges. The answer must be filed within 15 days after service of the notice of formal proceedings. Upon filing an answer to the charges, the judge or judicial candidate must designate an email address for subsequent notices.

(e) Medical Examination for Substance Abuse or Incapacity Complaints.

(1) Medical Examination Permitted. If the Commission initiates a formal proceeding involving a substance abuse, physical incapacity, or mental incapacity complaint, the Commission may require the judge or judicial candidate to submit to a medical examination upon a finding of good cause for a medical examination.

(2) Time; Suspension with Pay. If the Commission requires a medical examination under paragraph (1), the Commission must:

(A) order the judge or judicial candidate to submit to a physical or mental examination by one or more qualified physicians or psychologists selected and paid for by the Commission;

(B) notify the judge or judicial candidate of the examination at least 10 days before the date of the examination; and

(C) if the subject of the complaint is a judge:

(i) suspend the judge from office with pay for a period not to exceed 90 days; and

(ii) notify the judge of the suspension.

(3) Contents of Medical Examination Notice. The examination notice provided under paragraph (2) must include the examining physician’s or psychologist’s name and the date, time, and place of the examination.

(4) Medical Report; Testimony. Each examining physician or psychologist must file a written report of the examination with the Commission. The report will be received as evidence without further formality. The examining physician or psychologist must provide the judge or judicial candidate a copy of the report when it is provided to the Commission. On its own initiative, the Commission may require an examining physician or psychologist to provide oral or deposition testimony. On the judge or judicial candidate’s written request, the Commission must require an examining physician or psychologist to provide oral or deposition testimony.

(5) Suspension. If the Commission determines that a judge is unable to perform official duties because of substance abuse or physical or mental incapacity, the Commission must:

(A) recommend that the Supreme Court suspend the judge from office under Rule 7; or

(B) enter into a voluntary agreement with the judge for suspension with pay until the Commission determines that the judge is physically and mentally competent to resume official duties.

(6) Refusal to Comply. If the judge or judicial candidate refuses to submit to a physical or mental examination ordered by the Commission, the Commission may:

(A) petition a district court for an order compelling the judge or judicial candidate to submit to a physical or mental examination, demonstrating good cause for such an examination; and

(B) recommend that the Supreme Court suspend the judge from office under Rule 7, if the district court finds good cause and orders the judge or judicial candidate to comply.

(f) Setting Formal Hearing; Request for Special Master. Upon the filing of an answer or the expiration of the time for its filing, the Commission may set a time and place for a formal hearing by the Commission or file a request with the Clerk of the Supreme Court to appoint a special master.

(g) Appointment of Special Master. Within 20 days after receipt of the Commission’s request to appoint a special master, the Supreme Court must appoint an active or retired judge of a district or appellate court to hear and take evidence in the matter. The special master must set a time and place for the formal hearing. The special master has the power of a district judge in the enforcement of orders pertaining to witnesses, evidence, and procedure.

(h) Formal Hearing.

(1) Notice. The Commission or the special master must notify the judge or judicial candidate of the formal hearing at least 20 days before the hearing date.

(2) Open to the Public. The formal hearing is open to the public.

(3) Record. A record of the formal hearing must be made by a court reporter or court recorder.

(4) Failure to Appear. The Commission or special master must hold the formal hearing even if the judge or judicial candidate has not filed an answer or does not appear for the hearing. The failure of the judge or judicial candidate to answer or appear is not evidence of the truth of the facts alleged.

(5) Rules of Procedure and Evidence. The Commission or special master must adhere to the rules of procedure governing the trial of civil actions, but a judge or judicial candidate is not entitled to a jury trial. The admission of evidence is governed by the rules of evidence for civil actions.

(6) Discovery. The Commission must expedite discovery on request. The judge or judicial candidate must not request discovery of:

(A) the discussions, thought processes, or individual votes of Commission members; or

(B) the discussions or thought processes of employees of the Commission, including special counsel for the Commission.

(7) Judge or Judicial Candidate Rights. The judge or judicial candidate has:

(A) the right to discovery and to introduce evidence;

(B) the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter;

(C) the right to examine and cross-examine witnesses;

(D) the right to confront the judge’s or judicial candidate’s accusers;

(E) the right to a transcript of the testimony prepared at the expense of the Commission; and

(F) the right to appointment of and representation by a guardian ad litem, if the judge or judicial candidate is adjudged insane or incompetent, or if it appears to the Commission at any time during the proceedings that the judge or judicial candidate is not competent.

(8) Guardian Ad Litem. In the appointment of a guardian ad litem under paragraph (7)(F), preference must be given, so far as practicable, to members of the judge’s or judicial candidate’s immediate family. The guardian or guardian ad litem may claim and exercise any right and privilege and make any defense for the judge or judicial candidate with the same force and effect as if claimed, exercised, or made by the judge or judicial candidate, if competent.

(9) Commission Rulings.

(A) In a hearing before the Commission, the following will preside over the formal hearing:

(i) the Chairperson, when present;

(ii) the Vice-Chairperson, in the absence of the Chairperson; or

(iii) a judicial member of the Commission designated by the Chairperson, in the absence of both.

(B) Procedural and other interlocutory rulings must be made by the person presiding. Rulings are deemed consented to by the other members unless one or more calls for a vote. If a vote is called, rulings are made by majority vote under Rule 15(a)(2).

(i) Special Master Report.

(1) Report. After a formal hearing by a special master, the special master must promptly send the Supreme Court, the Commission, and the judge or judicial candidate a report that contains:

(A) a brief statement of steps taken by the special master, including the formal hearing;

(B) the special master’s findings of fact, which must be based on a preponderance of the evidence; and

(C) a transcript of the formal hearing.

(2) Statement of Objections. Within 15 days after the special master submits the report to the Supreme Court, the Commission, and the judge or judicial candidate, the examiner or the judge or judicial candidate may file with the clerk a statement of objections to the report, setting forth all objections to the report and all reasons in opposition to the findings as grounds for censure, suspension, removal, or retirement. The examiner must send the statement of objections to the judge or judicial candidate.

(j) Commission Review.

(1) Additional Hearing. If a statement of objections is filed, or if the Commission in the absence of such a statement proposes to modify or reject the special master’s findings, the Commission must give the judge or judicial candidate and the examiner an opportunity to be heard at a hearing before the Commission. The Commission must send notice of the time and place of such hearing at least 10 days before the hearing.

(2) Commission Decision. After the formal hearing and an additional hearing under paragraph (1), if any, the Commission may:

(A) dismiss the complaint;

(B) issue an education order, which may be issued in combination with another sanction or censure;

(C) issue an admonition;

(D) issue a warning;

(E) issue a reprimand;

(F) issue a censure; or

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

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

(ii) recommend to the Review Tribunal the removal or retirement of a judge under Rule 8;

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

(iv) recommend to the Supreme Court the suspension of the judge with or without pay under Rule 7, if the complaint involves certain incompetence or certain willful or persistent conduct as provided in Article V, Section 1-a(6) of the Texas Constitution and Section 33.001 of the Government Code; or

(H) if the judge is a retired or former judge, recommend that the Review Tribunal prohibit the judge from future judicial service, including holding judicial office or sitting as a judge by assignment.

(k) 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 (j)(2) within 5 business days after the Commission meeting where the Commission dismisses the complaint; or

(B) any other action under (j) within 7 business days after the Commission meeting where the Commission determines to take the action.

(l) Amendments to Notice or Answer. The special master or the Commission may allow amendments to the notice of formal proceedings and the answer within a reasonable time before commencement of the formal hearing. After the formal hearing has commenced, the notice may be amended to conform to proof adduced at the hearing. If an amendment is made, the judge or judicial candidate must be given reasonable time to answer the amendment and to prepare and present a defense. A judge or judicial candidate must not be disciplined for a charge or facts not included in the notice.

(m) Extension of Time. The Chairperson may extend for periods not to exceed 30 days in the aggregate the time for filing an answer, for the commencement of a hearing before the Commission, and for filing a statement of objections to the special master’s report. The special master may similarly extend the time for the commencement of a hearing before the special master.