Skip to Navigation Skip to Main Content

Other Voices: Open up state’s Catch-22 agency

It could well be that the delegates to the 1876 Constitutional Convention agreed that the state’s judges — who they said should be elected — were entitled to a shield of secrecy when answering complaints of misconduct. It could well be that the framers of the Texas Constitution intended to create an agency that didn’t have to disclose its workings to anyone.

Because we don’t presume to read the minds of men long since dead, we can’t say for sure that delegates didn’t have secrecy as an agenda item. What we can say is that such a cloak isn’t appropriate in today’s Texas, despite the claim by the State Commission on Judicial Conduct to the contrary.

The judicial commission’s claim was upheld in an opinion issued recently by Attorney General Greg Abbott. As the Austin American-Statesman’s Eric Dexheimer reported, Abbott ruled that strict confidentiality rules written into the Texas Constitution shield the commission from scrutiny — whether by the public or by state auditors responsible for evaluating the efficiency of state bureaucracies.

Abbott’s ruling caps, for now, a controversy that developed when Sunset Advisory Commission auditors were denied access to the judicial commission’s meetings and records.

The 13-member State Commission on Judicial Conduct is appointed by the governor and hears complaints brought against the state’s judges behind closed doors. Sunset auditors asked to sit in on commission meetings and were denied access. When sunset commission staffers asked to see memorandums about disciplinary rulings, the answer was still “no.” Attorney-client privilege, the judicial commission staff said.

It is a setup the late Joseph Heller wrote about in his classic Catch-22: You can’t sit in on the meetings because they’re secret. Why are they secret? We can’t tell you that. Why not? Because it’s secret.

All right then, the state’s elected judges, who are bound to hold trials in the open, are entitled to have complaints filed against them heard in secret. The resemblance to the Star Chamber is spooky, but concern that unfounded complaints could hamper a judge’s political career is in play. Again, this special protection is denied ordinary citizens who might be wrongfully accused of a crime.

“While Sunset recognizes the need to protect judges from public disclosure of unfair or unwarranted complaints stemming from individuals unhappy with the outcome of a case or from political opponents, this must be balanced against the public’s right to know that the process is working fairly and effectively when judges misuse or abuse the substantial authority they have been granted,” concluded a sunset commission report filed in March.

Exactly right. Judicial authority over individual liberty and fortune and general well-being is extensive. Framers of the Texas Constitution used the ballot as a brake on that power, but the secretive nature of the judicial commission denies the public the right to judge judges.

As an American-Statesman investigation published in April 2012 reported, the agency’s secrecy was an invitation to inconsistent disciplinary standards. If the inference strikes you as unfair, the absence of documents makes a fully informed evaluation impossible. All the public has is the commission’s word that it treats complaints impartially.

Abbott’s ruling noted that the Legislature can eliminate the secrecy by carving exceptions to constitutional secrecy. It should do that with no hesitation. If the framers indeed wanted to shield a specific class of politician from public scrutiny, the justification for it has long since expired.

Austin American-Statesman