Photo: Hermosawave

In the midst of election season, a new court ruling reminds Texas judges that ethical rules prohibit them from endorsing other candidates—no matter what office these candidates seek.

A special court of review has publicly admonished Burnet County Judge James Oakley for endorsing a candidate running for the Pedernales Electric Cooperative. Although that position doesn't actually count as a "public office," which the state's ethics rules prohibit judges from endorsing, Oakley's sanction came from another rule violation for lending the prestige of his judicial title to serve the private interests of the other candidate.

"I don't believe that the judicial conduct commission should have the ability to take away my constitutional right of free speech, or anyone's, for that matter," said Oakley, a nonlawyer whose duties are mainly administrative to preside over Burnet County's commissioner's court.

But as a constitutional county judge, he also has some judicial duties to preside over uncontested probate and guardianship proceedings, explained the Oct. 25 ruling by special court Justice Greg Perkes of the 13th Court of Appeals, joined by Justices Meagan Hassan of the 14th Court of Appeals and Robbie Partida-Kipness of the Fifth Court of Appeals.

Oakley is also a board member of the Pedernales Electric Cooperative, a nonprofit utility company. He publicly endorsed the campaign of Donna Holland Wilcox to run for the same board, and she used the judge's name, title and photo on her campaign materials. If she had won, the position would have paid a $36,000 stipend annually. But she lost.

Serving on the Pedernales Electric Cooperative's board wouldn't count as a "public office" under the Texas Code of Judicial Conduct, the ruling noted. That's an important distinction, since Canon 5(2) prohibits a judge from allowing "another candidate for any public office" to use his name or likeness as an endorsement.

Yet the commission charged Oakley with violating another rule that says a judge can't "lend the prestige of judicial office to advance the private interests of the judge or others."

Oakley argued that Wilcox didn't stand to gain any "private interests," because if elected to the PEC board, she wouldn't have gotten any secret or confidential benefits. The special court determined that the meaning of "private interests" in the rule was broader. Wilcox stood to benefit individually from her election, and so it did constitute a private interest, the opinion said.

Also, he argued that her $36,000 annual stipend counted as compensation paid to an elected official, and not a private interest, which is a precedent set in In re Hecht in 2006. In that case, then-Texas Supreme Court Justice Nathan Hecht, who is now chief justice, was sanctioned for publicly supporting Harriet Miers as a nominee to the U.S. Supreme Court. The sanction was overturned by a special court of review, which found that a Supreme Court justice's lifetime tenure and salary safeguard the judiciary's independence, so the benefits serve the public's interest.

In Oakley's case, Hecht did not apply, the opinion said. The Pedernales Electric Cooperative board isn't a public office, and Wilcox getting a stipend to serve there did not serve a greater public interest, said the ruling.

"Instead, it constituted a 'private interest' as the term is commonly understood in the context of Canon 2B," the opinion said.

The court determined that a public admonition was the appropriate sanction for the misconduct.

Oakley said he disagrees with the ruling.

"In Justice Hecht's case back then in 2006, if a Texas Supreme Court justice is found to be OK to endorse a candidate for the United States Supreme Court, then certainly a county judge in Texas—a constitutional county judge—should be able to endorse somebody for an electric cooperative seat," he said.

Jacqueline Habersham, interim executive director of the judicial conduct commission, declined to comment.

Read the opinion: