Photo: Jason Doiy/ALM

The Texas Commission on Judicial Conduct has deleted from its website public sanctions it issued against 11 Houston-area current and past judges for their bail bond practices.

Houston attorney Nicole DeBorde Hochglaube, who represents the 11 judges, said that shortly after the commission sent out the public admonitions in a news release Aug. 29, commission interim executive director Jackie Habersham called her to say the commission was withdrawing the sanctions.

'They took it back'

The withdrawal is just becoming public because it's been hidden by the agency's strict confidentiality requirements.

"No information about it should be public, because theoretically, there is no longer this public admonition. They took it back," said Hochglaube, partner in Hochglaube & DeBorde in Houston. "It didn't even happen, from a legal standpoint."

Hochglaube said the commission's confidentiality requirements bind her from divulging much information about the cases. The same secrecy provisions also prevented Texas Lawyer from confirming the withdrawal of the sanctions.

"Due to the agency's strict confidentiality rules, I'm not able to comment at this time on the issue," said an email by Habersham.

It's unprecedented for the commission to issue public sanctions and then delete them with no explanation, according to two Texas judicial conduct experts.

"A public admonition that's actually published—I haven't heard of that—and then withdrawn. This doesn't compute for me," said Chuck Herring, partner in Herring & Panzer in Austin, who authors an annual book on lawyer ethics with a chapter devoted to judicial ethics.

Austin solo practitioner Lillian Hardwick, who practices judicial ethics law, also said it's unprecedented.

"I've never seen them do that before," Hardwick said.

In the past, sanctions disappeared from the commission's website when a judge appealed a sanction, which results in a superseding ruling from a special court of review, she noted.

But none of these judges have appealed, according to Texas Supreme Court Deputy Chief Clerk Claudia Jenks, who wrote in an email that none of the 11 judges have appealed their sanctions.

Hardwick added that she's seen situations where the commission issued a sanction but later reviewed it again and issued an amended sanction. In one of these cases, a judge's original and amended sanction both still appear on the commission's site. In another situation, only the judge's amended sanction appeared; the original may have been private, Hardwick guessed.

Misconception?

The judges' attorney told Law.com affiliate Texas Lawyer she is not expecting to see amended sanctions here.

"I can tell you: I believe the matter to be concluded," Hochglaube said. "In my opinion, this has created a difficult situation for us, because of how this happened."

Hardwick said that procedurally, if the commission wanted to withdraw the 11 judges' sanctions, it could re-review the allegations against them and then determine the matters should be administratively dismissed, rather than issuing amended sanctions. With any administrative dismissal, the person who originally filed the complaint receives a dismissal notice, and has one chance to seek a review of the decision, she added.

The 11 Houston judges' original public admonitions, which were nearly identical, said that the judges gave instructions to Harris County criminal law hearing officers to deny all personal recognizance bonds, because the judges wanted to determine bond for defendants in their own courts. Even after the county's bail practices changed in 2017, many of the sanctioned judges told hearing officers to keep following a bond schedule, said the admonitions. Among other things, the commission found that the judges failed to comply with the law and maintain competence in the law because these bond practices violated hearing officers' legal authority to make decisions on bond.

Hochglaube previously told Texas Lawyer that the public admonitions contained misconceptions about what Texas law says about district judges and felony bail bond practices. It's incorrect that these judges violated the law, she said, adding that she thinks the commission is not a court designed to answer such questions of law. She also said that magistrates in Harris County specifically asked for judges' guidance for bonding situations, and the guidance was provided in a memorandum by the courts' administrative office and legal department.