Sunday, December 23, 2018


IS SENIOR JUDGE BANALES SUBJECT TO OBJECTION AS A FORMER JUDGE? YES

The rule came as a surprise to Chief Justice Nathen Hecht in my brother's case.  I want to be clear about my view on the appointment of former judges as visiting judges.  I do not object to the option, because I know there are some who are better  than most of the judges we have in Cameron County.  But every former judge should be subject to objection upon assignment.  They are not accountable to the people, and go against the very essence of our democracy.  But again I want my readers to know some are a lot better than most of our elected judges.

The rules can get complex.  One reason is the con created by the Texas Supreme Court in conjunction with the legislature.  A judge voted out of office by the people can gain credits towards senior judge status by acting as a visiting judge.  This becomes a highly unethical way to give unelected judges the right to retirement after they work as a visiting judge long enough.  The rule spits in the face of the electorates' voice on election day.

The state lists Judge Bañales as a senior judge, thereby making most attorneys to believe he cannot be objected to as a visiting judge after the lawyer already objected to another senior judge.  Lawyers you need to learn how the visiting judge obtained their title before you  agree to let them sit in your case.  If you know they are a good judge, keep them.  Unethical conduct can and does lead to great jurists being thrown from office on election day.  This happens because the Commission for Judicial Conduct has no use for judicial ethics.  If they were to do their job, good judges would not lose in contested races because of unethical conduct by their opponent.

The wife of Filamon Vela ran a Willy Horton ad against then Justice Frederico Hinojosa.  The racist ad cost Justice Hinojosa the election.  She should have been sanctioned to include loss of her judicial credentials.  

THE RULE WHICH CONFUSES ATTORNEYS, AND THE CHIEF JUSTICE OF THE TEXAS SURREME COURT

§17.053 D OF THE GOVERNMENT CODE

"(d) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice."

Judge  Bañales lost in the last election in which he was a candidate. Click  Most attorneys believe subsection "b" protects former judges who lost their election, but as "d" clearly states it does not.  In my brother's case Chief Justice Hecht immediately reversed his assignment of a senior judge who lost in her last election, seemingly unaware of the Rule.

"(b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case.  Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case."

NOW THE UNINFORMED WILL SAY AN ATTORNEY CAN INDEFINITELY DELAY A CASE THROUGH ENDLESS OBJECTIONS - WRONG

"(e) An active judge assigned under this chapter is not subject to an objection."  

By law, in election contests, a sitting judge cannot hear the case, so my solution does not work.  I actually have a mandamus against a then Dallas sitting judge for issuing an injunction from my client taking office.  One as a sitting Dallas County Judge he could not rule in the case.  Two the law clearly provides no injunction can issue in such a case.  I was nice to the judge and went to him after advising opposing counsel of my intent to ask him to void his order.  He threaten me with contempt.  I told him I was going upstairs with my mandamus in hand and he would removed.  I made it clear to him I was not impressed with his illegal threat of holding me in contempt for exercising my client's rights.  In the press he blamed everyone except himself.  Had he just allowed me to show him where in the lawsuit it said he may not rule in the case he never would have been subject to a mandamus.

My view is simple, the assignment of former judges should be limited to absolute necessity.  I can tell you Judge Euresti just removed himself from a case.  There was no evidence of even an impression of a possible problem.  He did it out of trying to just do the right thing.

Now while I believe the former judge assigned to the case is perfect for the case, under "e" Judge Euresti could have changed cases with another locally elected judge.  In the old days before this con costing the taxpayers a fortune this is how it was done.  In federal court you rarely see a former judge assigned after recusal.  The federal judge just swaps out the case with another judge.  No additional expense to the taxpayers.

 A locally elected judge could have politicized the case, [with no intent to do same] and that is not good for the image of the judiciary.  The reason Judge Euresti removed himself is not important.  And for the record he did it without any motion asking him to do so. But the case does need someone whose decision will not be questioned, and that is important.  He may dismiss the case or he may not, but we can be assured he will follow the law.  And yes, sometimes even the best judges get it wrong, but there is no ill intent.

But in this case especially before answer is when the elected judges should just ask another judge to swap cases so as to avoid the taxpayers picking up the tab for the visiting judge.

I write this piece because the voters need to know our elected judges instead of swapping cases when they self recuse, they are using a system which is needlessly costing the taxpayers a lot of money.  And no swapping cases do not inconvenience the parties.  You typically take a new case where no answer has been filed yet.  

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