Tex. Disciplinary R. Judges & Jud. Candidates 4

(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 para graph (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 Commis sion

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 ex tension. The additional extension must not exceed 90 days

after the date on which the extension under paragraph (i) expires.