BROWNSVILLE VOICE

BROWNSVILLE VOICE

The law, which is relevant provides strict oversight by the judge.

"(l) Proceedings commenced under this chapter may not proceed to hearing unless the judge who is to conduct the hearing is satisfied that this article has been complied with and that the attorney representing the state will introduce into evidence at the hearing any answer received from an inquiry required by Subsections (c)-(h) of this article. "

Judge Banales like every other trained judicial monkey proved he would sign his own death warrant. Judge Banales’ willingness to sign anything without insuring strict compliance with the law is a major cause for the corruption which has Cameron County by the short hairs. It is time Governor Perry rethink Judge Banales’ appointment and demand his resignation. Oh, that is right, Governor Perry is in a permanent state of holding is knees at the command of Dannenbaum.

The law required that the BND be given notice of the lawsuit, and in fact served a copy of the lawsuit.

"Furthermore, Arambula didn't mind that District Attorney Armando Villalobos did not give BND notice of the intended forfeiture of $1 million from Dannenbaum's firm, perhaps stripping BND's right to claim the money for itself."

http://www.brownsvilleherald.com/news/bnd_86143___article.html/board_bridge.html

"This is cover-up Brownsville style - "we are so confident we can get away with it, we are going to announce it publicly." Any BND Board Member unwilling to demand a criminal investigation into how DA Villalobos secured the forfeiture without being able to name the source of the money, is not fit for public office. In my opinion a deal was cut to protect Dannenbaum from further exposure in exchange for 1 million dollars.

The State responded that it had no such evidence in its custody or control. ....yeah right, I guess the tape evidence is contrary to Huberts..........

agenda. Control and custody of that tape would reveal John Hubert for the petty prevaricator he is.






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NUMBER 13-02-169-CR

COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG



WILLIAM RAY GEARHART, Appellant,

v.

THE STATE OF TEXAS, Appellee.



On appeal from the 105th District Court

of Kleberg County, Texas.



O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo



The State indicted William Ray Gearhart, appellant, as a repeat felony offender for assaulting a public servant. Footnote On March 5, 2002, a jury convicted Gearhart and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Gearhart's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

Gearhart filed a pro se notice of appeal on March 8, 2002. In the notice, Gearhart complained about his trial counsel's representation. He asked the trial court to appoint appellate counsel to represent him. The trial court appointed new counsel for him on appeal. Gearhart's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. APPLICABLE APPELLATE RULES

The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gearhart's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on December 10, 2003 that includes the trial court's certification that Gearhart has the right of appeal. We now turn to the merits.

III. DISPOSITION

A. Anders Brief

Gearhart's original court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel certifies: (1) he diligently reviewed the record for reversible error; (2) he was unable to find any error that would arguably require reversal of the trial court's judgment; (3) in his opinion, the appeal is without merit; (4) he served a copy of the brief on Gearhart; and (5) he informed Gearhart of his right to review a complete copy of the appellate record and file a pro se brief on his own behalf. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the indictment, pre-trial motions, voir dire, opening statements, sufficiency of the evidence, jury charge, closing argument, and punishment phase. Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See id. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the “conclusory statement” decried by Anders. See id.

In response to counsel's brief, Gearhart filed a pro se brief. Gearhart's original appointed counsel withdrew while this appeal was pending. The trial court appointed substitute appellate counsel.

B. Pro Se Brief

Gearhart asserts he was falsely accused of assaulting a public servant, a police officer with the Kingsville Police Department. He maintains that after he filed an internal affairs complaint regarding the incident, he was retaliated against when the State arrested him again for filing a false report and charged him with aggravated perjury. Generally, Gearhart challenges the sufficiency of the evidence to support his conviction. He claims he was attacked, without provocation, by two Kingsville police officers. He denies he attacked one of the officers first. He cites to purported inconsistencies in the testimony at trial in support of his position. Gearhart also claims that the State did not present evidence of his prior conviction for assault on a public servant to support his conviction and resulting enhanced punishment as a repeat felony offender.

Gearhart also complains his trial counsel was ineffective. He argues that his trial counsel did not subpoena the videotape from the arresting officer's squad car or the audiotapes of an emergency call made by a witness, a clerk at the convenience store where the altercation took place. The tapes, Gearhart asserts, would have substantiated his version of events. Gearhart also alleges his counsel was ineffective by not objecting to the jury. He claims that jurors who indicated in voir dire they knew the prosecutor or his family ended up on the jury and that his trial counsel permitted venire members to remain on the jury despite Gearhart's instructions to the contrary. Further, Gearhart alleges his trial counsel was ineffective by not delivering a closing argument that challenged the testimony of the officer about an injury that the officer had not included in his original report of the incident. Finally, Gearhart complains that his trial counsel made an inappropriate remark to the prosecutor, after the jury retired to deliberate, reflecting counsel's belief that the jury would find Gearhart guilty.

C. Independent Review of the Record

Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christ 2002, no pet.).

1. The Indictment

The indictment properly alleges the offense of assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b), (d) (Vernon 2003). It also properly alleges three prior offenses as repeat felony offender enhancement. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gearhart did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). We find no arguable error in the indictment.

2. Pre-Trial Motions

The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.

3. Voir Dire

A review of the voir dire examination shows that sixteen venire members knew the prosecutor, a long-time resident of Kingsville, or his family. They all indicated they would consider the facts of the case and not base their decision on their knowledge of the prosecutor or his family. Neither the State nor Gearhart raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App.–Waco 2001, pet. ref'd). Further, the trial court did not limit Gearhart's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). We find no arguable error in voir dire.

4. Opening Statements

As a general rule, to preserve error for appellate review, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Each side presented opening statements. Neither side objected to the other's. Gearhart thus waived any error in the prosecution's opening statement. See Limas v. State, 941 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996, pet. ref'd) (finding waiver for failure to object to prosecutor's closing argument). We find no arguable error in the prosecution's opening statement.

5. Sufficiency of the Evidence

a. Standards of Review

(1) Legal Sufficiency

A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).

In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

(2) Factual Sufficiency

We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.

We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). If the accused did not have the burden of proof at trial, then the first or "manifestly unjust" standard applies. Id. If the accused had the burden of proof at trial, then the second or "against the great weight and preponderance" standard applies. Id.

In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

b. Sufficiency Analysis

(1) Legal Sufficiency

Viewing the evidence in the light most favorable to the prosecution and measuring it against a hypothetically correct jury charge, we find that the arresting officer testified to each of the elements of the offense of assault of a public servant. Gearhart struck the uniformed officer while the officer was in the process of detaining him in response to a public-disturbance complaint. Gearhart's assault bruised the officer and chipped his tooth. The convenience store clerk corroborated the officer's testimony. Gearhart stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Viewing the relevant evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime, including the repeat felony offender allegation. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.

(2) Factual Sufficiency

We view all the evidence neutrally, favoring neither the State nor Gearhart, and measure it against a hypothetically correct jury charge. Johnson, 23 S.W.3d at 6-7; Adi, 94 S.W.3d at 131. In addition to the arresting officer and convenience store clerk's testimony, Gearhart testified in his own defense. He admitted he had been drinking and had gotten into a disagreement with the clerk about getting free matches from the store. He admitted he had marijuana in his pocket. He denied assaulting the officer, however. Rather, he said the officer who testified and a second officer assaulted him without provocation. Finally, Gearhart admitted he had been convicted before for assaulting a public servant, although he stressed that the public servant he assaulted that time was a corrections officer, not a police officer. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gearhart, and with appropriate deference to the jury's credibility determinations, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 6-7.

Accordingly, we find no arguable legal or factual insufficiency of the evidence. 6. The Charge

Gearhart did not object to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh'g). We find no arguable egregious error in the charge. 7. Closing Argument

Neither party objected to the other's closing argument. Thus, Gearhart waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Limas, 941 S.W.2d at 203. We find no arguable error in the prosecutor's jury argument.

8. Punishment Phase

The record shows that Gearhart stipulated to the prior felony assault of a public servant in the culpability phase of the trial, which evidence supported his enhanced punishment as a repeat felony offender. To preserve any error in the punishment phase, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Gearhart did not object at sentencing on any basis. We find that he waived any challenge to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.

9. Ineffective Assistance of Counsel

The record contains no evidentiary support for Gearhart's claims of ineffective assistance of counsel. When the alleged ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex. Crim. App. 1994).

Accordingly, our independent review of the record finds that Gearhart's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App.–Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gearhart on appeal. We hereby order counsel to advise Gearhart promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.

ERRLINDA CASTILLO

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 11th day of December 2003.

A judge shall be patient, dignified and courteous to litigants,

Local
Bañales shifts bond funds to husband's office
Couple: County must provide space for judge

By Dan Kelley (Contact)
Originally published 03:46 a.m., April 29, 2008
Updated 03:46 a.m., April 29, 2008
Bañales' vote, involvement do not appear to be conflict of interest, attorney says.
Bañales' vote, involvement do not appear to be conflict of interest, attorney says.

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Nueces County Commissioner Peggy Bañales voted to take $118,000 for roadwork in her precinct and spend it inside the courthouse instead -- on a new office for her husband, Judge J. Manuel Bañales.

The judge, who presides over the 105th District Court, had been appointed recently to the additional duty of presiding judge of the 5th Judicial District. In those two capacities, he now maintains two offices in the courthouse.

The Bañaleses said the county was obligated to provide an office for the presiding judge, and that the money would have had to come from somewhere.

"No matter where the money came from, the county would have to do it," Commissioner Bañales said.

The transfer occurred June 13 after Commissioner Bañales abstained from two other votes related to the renovation, one on March 21 and another April 17. She said she wanted to avoid the appearance of conflict of interest.

Behind the scenes however, she worked to secure funding.

And on June 13, when a vote to shift the money for the project came up, she was the second of two commissioners who called to bring the transfer to a vote.

Her vote and involvement do not appear to be a potential conflict of interest, according to the county attorney. Commissioner Bañales also said she voted for the transfer because it contained increased funding for other projects, such as the Richard M. Borchard Regional Fairgrounds.

Of the $165,000 used to renovate the judge's offices, about $118,000, came from 2004 bond funds earmarked to rehabilitate County Road 52 in Precinct 1, which is represented by Commissioner Bañales. Commissioner Betty Jean Longoria contributed about $40,000 from funds she controlled.

Each commissioner maintains a portion of the bond funds to be used in his or her district and each has control over that portion of the funds. Some have more than $1 million dollars left since the county issued the certificates of obligation.

When asked why he needed the second office, Judge Bañales said the county was obligated to provide an office for the presiding judge, and that the money would have had to come from somewhere.

Judge Bañales said he uses the office to have regular meetings with judges from across the region. He also uses the office for a committee that issues credentials for lawyers working in death penalty cases.

Commissioner Bañales said she used money slated for County Road 52 because another bond issue, from 2007, also included money for that road. She said other options to pay for the renovation included using money from the general reserve and taking money away from some other project.

"There was money available," she said. "It seemed that was the best solution."

Judge Bañales said he isn't the first presiding judge to have two offices -- two others who held the post in Edinburg and Brownsville also did.

"You have to keep in mind that the county is obligated to provide those funds, if it was for me or another individual," Judge Bañales said.

The judge estimated that he spends 20 percent to 30 percent of his time serving as presiding judge. Duties of that post include assigning cases to other judges in situations where another judge is ill or incapacitated, and presiding over situations in which a party in a lawsuit has asked a judge to step aside or recuse himself or herself from a case.

Judge Bañales also sits on the bench for civil and criminal trials in both Nueces and Kleberg counties.

The office has a kitchen, bathroom, and a large conference room where judges from several counties meet regularly.

Commissioner Bañales' vote likely is not a conflict of interest under Texas law. County officials generally are prohibited from voting on matters in which their close relatives have a financial or business interest, and this situation likely doesn't add up to a financial or business interest, County Attorney Laura Garza Jimenez said.

Bañales was appointed to a four-year term as presiding judge in January 2007.

He is the first judge from Nueces County to hold that post in more than 20 years.

Initially, Judge Bañales asked to house his new offices on the 10th floor of the courthouse, where the 13th Court of Appeals meets. He wanted to use office space the court of appeals wasn't using.

The Court of Appeals had other ideas.

A letter signed by six justices complained that locating Bañales on the 10th floor could allow visitors to his office to overhear the court's deliberations. It also would have ejected some of the court of appeals' staff.

By March, Judge Bañales had agreed to offices on the fifth floor.

Contact Dan Kelley at 886-4316 or kelleyd@caller.com.

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Code of Judicial Conduct
Office of Court Administration

Judicial Ethics | Judicial Conduct | Judicial Office | Judicial Ethics Opinions | Texas Ethics Commission

* Canon 1 A Judge Should Uphold the Integrity and Independence of the Judiciary.
* Canon 2 A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
* Canon 3 A Judge Should Perform the Duties of Office Impartially and Diligently.
* Canon 4 A Judge May Conduct the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.
* Canon 5 A Judge Should Refrain From Inappropriate Political Activity.
* Canon 6 A Judge Shall Comply with the Code of Judicial Conduct.
* Canon 7 Effective Date of Compliance
* Canon 8 Construction and Terminology of the Code.

Preamble

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges.They should also be governed in their judicial and personal conduct by general ethical standards.The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
CANON 1
Upholding the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.The provisions of this Code are to be construed and applied to further that objective.
CANON 2
Avoiding Impropriety and the Appearance of Impropriety In All of the Judge's Activities

A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow any relationship to influence judicial conduct or judgment A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

CANON 3
Performing the Duties of Judicial Office Impartially and Diligently

A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. Judicial duties include all the duties of the judge's office prescribed by law.In the performance of these duties, the following standards apply:

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.

(2) A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(3) A judge shall require order and decorum in proceedings before the judge.

(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.

(5) A judge shall perform judicial duties without bias or prejudice.

(6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

(7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others.This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control.This subsection does not prohibit:

(a) communications concerning uncontested administrative or uncontested procedural matters;

(b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties;

(c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;

(d) consulting with other judges or with court personnel;

(e) considering an ex parte communication expressly authorized by law.

(9) A judge should dispose of all judicial matters promptly, efficiently and fairly.

(10) A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected. A judge shall require similar abstention on the part of court personnel subject to the judge's direction and control.This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.This section does not apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity.

(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project.

C. Administrative Responsibilities.

(1) A judge should diligently and promptly discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(2) A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

(5) A judge shall not fail to comply with Rule 12 of the Rules of Judicial Administration, knowing that the failure to comply is in violation of the rule.

D. Disciplinary Responsibilities.

(1) A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.

(2) A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.

CANON 4
Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations

A. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or

(2) interfere with the proper performance of judicial duties.

B. Activities to Improve the Law. A judge may:

(1) speak, write, lecture, teach and participate in extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code; and,

(2) serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities.He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system and the administration of justice.

C. Civic or Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the profit of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly or frequently engaged in adversary proceedings in any court.

(2) A judge shall not solicit funds for any educational, religious, charitable, fraternal or civic organization, but may be listed as an officer, director, delegate, or trustee of such an organization, and may be a speaker or a guest of honor at an organization's fund raising events.

(3) A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

D. Financial Activities.

(1) A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.

(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business. A judge shall not be an officer, director or manager of a publicly owned business.For purposes of this Canon, a "publicly owned business" is a business having more than ten owners who are not related to the judge by consanguinity or affinity within the third degree of relationship.

(3) A judge should manage any investments and other economic interests to minimize the number of cases in which the judge is disqualified.As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other economic interests that might require frequent disqualification. A judge shall be informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to be informed about the personal economic interests of any family member residing in the judge's household.

(4) Neither a judge nor a family member residing in the judge's household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a family member residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

E. Fiduciary Activities.

(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties.

(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

F. Service as Arbitrator or Mediator. An active full-time judge shall not act as an arbitrator or mediator for compensation outside the judicial system, but a judge may encourage settlement in the performance of official duties.

G. Practice of Law. A judge shall not practice law except as permitted by statute or this Code. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.

H. Extra-Judicial Appointments. Except as otherwise provided by constitution and statute, a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.

I. Compensation, Reimbursement and Reporting.

(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's family.Any payment in excess of such an amount is compensation.

(2) Public Reports. A judge shall file financial and other reports as required by law.

CANON 5
Refraining From Inappropriate Political Activity

(1) A judge or judicial candidate shall not:

(i) make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;

(ii) knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or

(iii) make a statement that would violate Canon 3B(10).

(2) A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).

(3) A judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office.

(4) A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 253.155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.

COMMENT

A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge's impartiality to be reasonably questioned in the context of a particular case and may result in recusal.
CANON 6
Compliance with the Code of Judicial Conduct

A. The following persons shall comply with all provisions of this Code:

(1) An active, full-time justice or judge of one of the following courts:

(a) the Supreme Court,

(b) the Court of Criminal Appeals,

(c) courts of appeals,

(d) district courts,

(e) criminal district courts, and

(f) statutory county courts.

(2) A full-time commissioner, master, magistrate, or referee of a court listed in (1) above.

B. A County Judge who performs judicial functions shall comply with all provisions of this Code except the judge is not required to comply:

(1) when engaged in duties which relate to the judge's role in the administration of the county;

(2) with Canons 4D(2), 4D(3), or 4H;

(3) with Canon 4G, except practicing law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.

(4) with Canon 5(3).

C. Justices of the Peace and Municipal Court Judges.

(1) A justice of the peace or municipal court judge shall comply with all provisions of this Code, except the judge is not required to comply:

(a) with Canon 3B(8) pertaining to ex parte communications; in lieu thereof a justice of the peace or municipal court judge shall comply with 6C(2) below;

(b) with Canons 4D(2), 4D(3), 4E, or 4H;

(c) with Canon 4F, unless the court on which the judge serves may have jurisdiction of the matter or parties involved in the arbitration or mediation; or

(d) if an attorney, with Canon 4G, except practicing law in the court on which he or she serves, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.

(e) with Canons 5(3).

(2) A justice of the peace or a municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding.This subsection does not prohibit communications concerning:

(a) uncontested administrative matters,

(b) uncontested procedural matters,

(c) magistrate duties and functions,

(d) determining where jurisdiction of an impending claim or dispute may lie,

(e) determining whether a claim or dispute might more appropriately be resolved in some other judicial or non-judicial forum,

(f) mitigating circumstances following a plea of nolo contendere or guilty for a fine-only offense, or

(g) any other matters where ex parte communications are contemplated or authorized by law.

D. A Part-time commissioner, master, magistrate, or referee of a court listed in 6A(1) above:

(1) shall comply with all provisions of this Code, except he or she is not required to comply with Canons 4D(2), 4E, 4F, 4G or 4H, and

(2) should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a commissioner, master, magistrate, or referee, or in any other proceeding related thereto.

E. A Judge Pro Tempore, while acting as such:

(1) shall comply with all provisions of this Code applicable to the court on which he or she is serving, except he or she is not required to comply with Canons 4D(2), 4D(3), 4E, 4F,4G or 4H, and

(2) after serving as a judge pro tempore, should not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.

F. A Senior Judge, or a former appellate or district judge, or a retired or former statutory county court judge who has consented to be subject to assignment as a judicial officer:

(1) shall comply with all the provisions of this Code except he or she is not required to comply with Canon 4D(2),4E, 4F,4G, or 4H, but

(2) should refrain from judicial service during the period of an extra-judicial appointment not permitted by Canon 4H.

G. Candidates for Judicial Office.

(1) Any person seeking elective judicial office listed in Canon 6A(1) shall be subject to the same standards of Canon 5 that are required of members of the judiciary.

(2) Any judge who violates this Code shall be subject to sanctions by the State Commission on Judicial Conduct.

(3) Any lawyer who is a candidate seeking judicial office who violates Canon 5 or other relevant provisions of this Code is subject to disciplinary action by the State Bar of Texas.

(4) The conduct of any other candidate for elective judicial office, not subject to paragraphs (2) and (3) of this section, who violates Canon 5 or other relevant provisions of the Code is subject to review by the Secretary of State, the Attorney General, or the local District Attorney for appropriate action.

H. Attorneys.

Any lawyer who contributes to the violation of Canons 3B(7), 3B(10), 4D(4), 5, or 6C(2), or other relevant provisions of this Code, is subject to disciplinary action by the State Bar of Texas.

CANON 7
Effective Date of Compliance

A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it.
CANON 8
Construction and Terminology of the Code

A. Construction.

The Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges.It consists of specific rules set forth in Sections under broad captions called Canons.

The Sections are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct.It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.

B. Terminology.

(1) "Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action.

(2) "Should" or "should not" relates to aspirational goals and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.

(3) "May" denotes permissible discretion or, depending on the context, refers to action that is not covered by specific proscriptions.

(4) "De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.

(5) "Economic interest" denotes ownership of a more than de minimis legal or equitable interest,or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor or other active participant, in an educational, religious, charitable, fraternal, or civic organization or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; and

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

(6) "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.

(7) "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(8) "Law" denotes court rules as well as statutes, constitutional provisions and decisional law.

(9) "Member of the judge's (or the candidate's) family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship.

(10) "Family member residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides at the judge's household.

(11) "Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason.The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control.

(12) "Third degree of relationship."The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.

(13) "Retired Judge" means a person who receives from the Texas Judicial Retirement System, Plan One or Plan Two, an annuity based on service that was credited to the system.(Secs. 831.001 and 836.001,V.T.C.A. Government Code [Ch. 179, Sec. 1, 71st Legislature (1989)]

(14) "Senior Judge" means a retired appellate or district judge who has consented to be subject to assignment pursuant to Section 75.001, Government Code. [Ch. 359, 69th Legislature, Reg. Session (1985)]

(15) "Statutory County Court Judge" means the judge of a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, statutory probate courts, county criminal courts, county criminal courts of appeals, and county civil courts at law. (Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])

(16) "County Judge" means the judge of the county court created in each county by Article V, Section 15, of the Texas Constitution.(Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])

(17) "Part-time" means service on a continuing or periodic basis, but with permission by law to devote time to some other profession or occupation and for which the compensation for that reason is less than that for full-time service.

(18) "Judge Pro Tempore" means a person who is appointed to act temporarily as a judge.

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Rule 1.06 notes that "[i]f the lawyer's own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advi

REFERENCES PROCEDURAL & CONDUCT RULES TEXAS PROFESSIONAL ETHICS OPINIONS	MEMBERSHIP CONTACT US SITEMAP ABOUT THE CENTER COURSES & EVENTS REFERENCES RESOURCES BOOKSTORE MEMBERS ONLY Texas Professional Ethics Opinions Type in a specific opinion number or search for specific keywords. OPINION 571 THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS May 2006 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may a prosecutor require as part of a plea agreement that a criminal defendant waive post-conviction appeals based on prosecutorial misconduct and ineffective assistance of counsel? Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a criminal defendant's lawyer to advise the defendant regarding such an agreement, and if agreed to by the defendant, to sign the plea agreement along with the defendant? STATEMENT OF FACTS In the context of negotiating a plea agreement with a criminal defendant, and as a condition to the prosecutor's acceptance of the plea agreement, the prosecutor requires the criminal defendant to execute an agreement waiving post-conviction rights to appeal based on prosecutorial misconduct and ineffective assistance of counsel. Additionally, the prosecutor requires the criminal defendant's lawyer to sign the plea agreement containing these waivers of post-conviction rights to appeal. DISCUSSION The questions presented relate to numerous legal issues that may be involved in the enforceability and effect of waivers contained in plea agreements but that are not within the jurisdiction of the Committee. Because of the limited jurisdiction of the Committee, this opinion is necessarily limited to consideration of the applicability of the Texas Disciplinary Rules of Professional Conduct to the circumstances presented. Prosecutor Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct sets forth certain ethical standards for prosecutors in criminal cases. Rule 3.09(c) states that the prosecutor in a criminal case shall "not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights" (emphasis added). By its terms, Rule 3.09(c) prohibits a prosecutor from attempting to obtain a waiver of post-conviction rights from a criminal defendant who is not represented by counsel. In contrast, the criminal defendant in the circumstances here considered is and has been represented by counsel. In these circumstances, Rule 3.09 does not prohibit a prosecutor from requesting in a plea agreement a waiver of appeals based on prosecutorial misconduct or ineffective assistance of counsel. Paragraphs (a) and (d) of Rule 3.09 provide that a prosecutor shall: "(a) refrain from prosecuting . . . a charge that the prosecutor knows is not supported by probable cause; . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; . . . ." A violation of these requirements can constitute prosecutorial misconduct. While Rule 3.09 does not prohibit a prosecutor from including in a plea agreement a waiver of post-conviction appeals based on claims of prosecutorial misconduct or ineffective assistance of counsel, obtaining such a waiver in a plea agreement does not relieve the prosecutor from complying with the requirements of Rule 3.09. Further, the waiver does not exempt the prosecutor from disciplinary action for misconduct that violates the Texas Disciplinary Rules of Professional Conduct. Defense Counsel The Texas Disciplinary Rules of Professional Conduct impose on defense counsel no special constraints with respect to representation of a criminal defendant concerning a proposed plea agreement containing a waiver of appeals based on claims of misconduct by the prosecutor. However, with respect to a proposed waiver of appeals based on claims of ineffective assistance of the defendant's counsel, the requirements of Rule 1.08(g) and Rules 1.06(b) and 1.06(c) as applied to defense counsel must be considered. Rule 1.08(g) provides in pertinent part that "[a] lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement . . . ." A plea agreement waiving post-conviction appeals based on ineffective assistance of counsel does not expressly limit the defense counsel's liability to the defendant for malpractice. Rather, the waiver is directed at arguments that might be made, on direct appeal, by habeas corpus or otherwise, in an effort by the criminal defendant to set aside the plea agreement and thus the conviction. Nevertheless, depending on the precise language of the plea agreement and the specific facts of a particular case, an attempt could be made to use or interpret the plea agreement waiver of rights to appeal based on a claim of ineffective assistance of counsel as an agreed limitation on defense counsel's liability for malpractice. In this opinion, the Committee assumes that in a malpractice dispute, upon a consideration of the relevant public policy concerns arising from the circumstances surrounding plea agreements and the nature of the relationship between a criminal defendant and criminal defense counsel, a court or other authority would not allow a waiver in the plea agreement to be used or interpreted as an agreement limiting a defendant's malpractice claim. Consequently, the Committee finds that Rule 1.08(g) does not prohibit a lawyer from advising a defendant regarding a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel. However, if such a plea agreement waiver were interpreted to be an agreement limiting a criminal defense lawyer's liability to the defendant for malpractice, Rule 1.08(g) would require that the criminal defendant be represented by separate counsel, at least with respect to considering and entering into the waiver relating to ineffective assistance of counsel. Advising a defendant about a plea agreement that waives post-conviction appeals based on claims that the criminal defendant's lawyer rendered ineffective assistance would normally present for the lawyer conflict of interest issues that are governed by Rules 1.06(b) and 1.06(c). These Rules provide in pertinent part: "(b) . . . except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: . . . (2) reasonably appears to be or become adversely limited . . . by the lawyer's or law firm's own interests. (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any." Depending upon the facts involved in each case, a criminal defense lawyer may or may not have a conflict of interest with respect to advising the defendant about a plea agreement containing a waiver of claims of ineffective assistance of counsel. In some cases, the defense lawyer may have no cause for any reasonable concern as to his effectiveness in representing the defendant. In such cases, the representation of the defendant as to the waiver would not reasonably appear to be adversely limited by the lawyer's interests; consequently, Rule 1.06(b)(2) would not prohibit the lawyer's representation of the defendant as to the waiver. In other cases, if the lawyer has a reasonable basis for concern that he may have rendered ineffective assistance to the defendant, the lawyer's representation of the defendant as to the proposed plea agreement waiver may reasonably appear to be limited by the lawyer's own interest in not being found to have rendered ineffective assistance. Rule 1.06(b)(2) would then prohibit the lawyer's representation as to the waiver unless the requirements of Rule 1.06(c) can be met. In that circumstance, the lawyer would have to apply Rule 1.06(c)(1) and determine whether he reasonably believes that the representation of the defendant with respect to the plea agreement and waiver would not be adversely affected by the lawyer's own interests. In this regard, Comment 5 to Rule 1.06 notes that "[i]f the lawyer's own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advice." In some instances, a disinterested lawyer would conclude that the defendant should not agree to the lawyer's representation with respect to the proposed plea agreement waiver, in which case the lawyer should not ask for the defendant's consent to continue the representation as to the waiver. See Comment 7 to Rule 1.06. In other circumstances, following a determination that the requirements of Rule 1.06(c) apply, the lawyer may reasonably believe after examination of the issue that the representation of the defendant as to the proposed plea agreement waiver will not be materially affected by the lawyer's own interests. In that case, Rule 1.06(c)(2) requires the lawyer to seek the consent of the defendant for the lawyer's representation concerning the waiver after full disclosure to the defendant of the facts and issues involved. In disclosure on this matter and in communications with the defendant generally, the lawyer is required under Rule 1.03(b) to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." In some cases, although the lawyer reasonably believes under Rule 1.06(c)(1) that the representation of the defendant will not be materially affected, it may be impossible to make the required full disclosure or to obtain informed consent from the defendant. For example, a lawyer may not be able to make the necessary disclosure because of duties owed to other clients, or the defendant may for some reason be unable to consider appropriately the question of giving consent after the lawyer's disclosure. In cases where consent after full disclosure is required but for whatever reason cannot be obtained, defense counsel may not advise the defendant as to a plea agreement waiver of appeals based on claims of ineffective assistance of counsel. In summary, a criminal defense lawyer must consider the application of Rule 1.06 in each case involving a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel. In some cases, the criminal defense lawyer will be able to determine that there is no concern on the part of the lawyer as to the effectiveness of the lawyer's assistance to the defendant that would create a conflict of interest for the lawyer under Rule 1.06(b)(2). In that event, the lawyer may represent the defendant with respect to the plea agreement waiver. In other cases, the representation will be permitted after the lawyer's evaluation under Rule 1.06(c)(1) and disclosure and consent under Rule 1.06(c)(2). In other cases, a conflict of interest will exist within the scope of Rule 1.06(b)(2) and it will not be possible for the lawyer to meet the requirements of Rule 1.06(c). In that event, the defendant must be advised by separate counsel concerning the proposed waiver of post-conviction appeals based on claims of ineffective assistance of counsel. CONCLUSION The Texas Disciplinary Rules of Professional Conduct do not prohibit a prosecutor from including in a plea agreement a waiver of post-conviction appeals based on claims of prosecutorial misconduct or ineffective assistance of counsel. However, obtaining such a waiver does not relieve the prosecutor from complying with the requirements of Rule 3.09 and does not preclude discipline for misconduct that violates the Texas Disciplinary Rules. Assuming that a waiver of claims of ineffective assistance of counsel in a plea agreement is not treated as an agreed limitation on possible future malpractice claims by the defendant against the lawyer, the Texas Disciplinary Rules of Professional Conduct do not prohibit a criminal defense lawyer from advising a defendant with respect to a plea agreement that contains a waiver of post-conviction appeals based on prosecutorial misconduct or ineffective assistance of counsel or from signing the plea agreement along with the defendant, provided that in the particular case the defense lawyer fully complies with the applicable requirements of Rules 1.06(b) and 1.06(c) with respect to any conflict of interest arising from the waiver of post-conviction appeals based on ineffective assistance of counsel.
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Nueces Democrats: Hegemony: Power, Culture & Ideology: Lencho Rendon: The Pimping Out Of The President & Hillary

Nueces Democrats: Hegemony: Power, Culture & Ideology: Lencho Rendon: The Pimping Out Of The President & Hillary:

"It is a simple choice, vote for Joe or vote for the Solomonista."

Community $upervi$ion $tatute$ Amended & MORE DOLLAR DOLLAR BILL$ for a CA$H COW!! Moooooooooooooo COW! …………..Moooooooooooooo COW!

Art. 42.12	amended	HB 1634	3
Art. 42.12	amended	SB 1054	1
Art. 42.12 sec. 5	amended	HB 1634	1
Art. 42.12 sec. 8(a)	amended	HB 1180	1
Art. 42.12 sec. 9(l)	repealed	SB 1054	5
Art. 42.12 sec. 9(m)	repealed	SB 1054	5
Art. 42.12 sec. 11	amended	SB 1054	2
Art. 42.12 sec. 11(d)	amended	SB 1057	4
Art. 42.12 sec. 13(a)	amended	HB 3506	3
Art. 42.12 sec. 13(g)	amended	HB 3506	3
Art. 42.12 sec. 13B	amended	SB 1054	3
Art. 42.12 sec. 13B(a)	amended	SB 1054	3
Art. 42.12 sec. 14	amended	SB 1054	4
Art. 42.12 sec. 14(b)	repealed	SB 1054	6
Art. 42.12 sec. 14(e)	amended	HB 2424	63
Art. 42.12 sec. 15(a)	amended	HB 2668	1
Art. 42.12 sec. 15(c)	amended	HB 2668	1
Art. 42.12 sec. 19	amended	SB 146	1
Art. 42.12 sec. 19(f)	amended	HB 2424	64
Art. 42.12 sec. 19(g)	amended	SB 146	1
Art. 42.12 sec. 21	amended	HB 1634	2