In Re Barr

¶1OPINION ON REHEARING

¶2We grant Respondent James L. “Jim” Barr’s Motion for Rehearing in order to address constitutional concerns and other matters properly preserved for review.

¶3A. Procedural History on Rehearing

¶4On March 2, 1998, Respondent filed his Motion for Rehearing of the Review Tribunal’s Findings and his Motion to Supplement the Record. A Motion for Rehearing may be filed within fifteen (15) days of the date of judgment unless the Review Tribunal directs in its judgment that such a motion will not be entertained. See Tex.R. Rem’l/Ret. Judg., 56 Tex.B.J. 823 (1993), Rule 14. Respondent asserted that he did not waive the constitutional challenges, as they were properly raised before the Special Master during a proceeding on March 10, 1997. Respondent sought to supplement the record with the transcript of that March 10th proceeding. The Examiner filed its response to both motions on March 13, 1998 and did not oppose Respondent’s Motion to Supplement the Record. However, the Examiner did oppose Respondent’s Motion for Rehearing on the ground that the supplementation of the record in no way affected the Review Tribunal’s analysis and conclusion regarding preservation of his constitutional arguments.

¶5On April 3, 1998, Respondent filed his First Amended Motion for Rehearing and Request for Remand to make Conclusions of Law. Respondent argued that Rule 16 of the Texas Rules for the Removal or Retirement of Judges required the Commission to make both findings of fact and conclusions of law with respect to the issues of fact and law in the proceedings. Tex.R. Rem’l/Ret. Judg., Rule 16. On April 22, 1998, the Review Tribunal issued an order requesting a response to the aforementioned motion. On May 6, 1998, the Examiner filed its Response to Respondent’s First Amended Motion for Rehearing and Request for Remand to make Conclusions of Law. The Examiner argued that the Commission in fact made Conclusions of Law, that Respondent failed to preserve the constitutional claims for review, and that supplementing the record with the transcript did not cure Respondent’s failure to preserve error. The Examiner also asserted that no basis for remand existed since no precedent supported it and “good cause” had not been shown as required by Tex.R. Rem’l/Ret. Judg., Rule 12(f).1

¶6On May 28, 1998, Respondent filed his Reply to Examiner’s Response to Respondent’s First Amended Motion for Rehearing and Request for Remand to make Conclusions of Law. Respondent argued that the recent opinion In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib. 1998, pet.de*563nied) specifically reserved the right to a remand if necessary. Respondent also argued that the Rules of Appellate Procedure, under which the Review Tribunal operated, clearly allow a remand. See Tex.R.App.P. 48.3(a). As discussed in the original opinion, the civil rules of procedure, both trial and appellate, are applicable, to the extent that they do not conflict with the Rules FOR Removal OR RetiREment of Judges. Tex.R. Rem’l/Ret. Judg., Rules 10(d)(1), 12(e), and (g). On July 29, 1998, the Review Tribunal took the following action:

1. Granted Respondent’s Motion to Supplement the Record;

2. Granted Respondent’s Motion for Rehearing on the constitutional issues, including the question of the applicability of the “Forgiveness Doctrine;”

3. Granted the Examiner’s unopposed Motion to Supplement the Record;

4. Abated and remanded the matter to the Commission for consideration of the constitutional issues raised by the supplemental record;

5. Ordered that no action be taken on the Respondent’s Motion for Continuance insofar as the matter had been abated and remanded to the Commission;

6. Ordered that the Commission’s conclusions of law as to the constitutional issues raised in the supplemental record, including the question of the applicability of the “Forgiveness Doctrine,” be filed with the Review Tribunal on or before October 30, 1998, so as to fully afford the Commission sufficient opportunity to schedule and hear oral argument and otherwise comply with due process.

¶7The Commission filed its Supplemental Conclusions of Law on August 6,1998. On August 27, 1998, Respondent filed his Objections to the Supplemental Conclusions of Law (along with his Response to the Examiner’s Response to Respondent’s Request for Oral Argument and Opportunity to Brief Issues of Constitutional Dimensions). On September 2, 1998, the Review Tribunal issued an order overruling Respondent’s requests to rebrief and to orally argue before the Commission and ordered the parties to brief the issues regarding the Commission’s Supplemental Conclusions of Law. Finally, on September 21, 1998, Respondent filed his brief and on October 1, 1998, the Commission filed its Reply Brief.

¶8B. Discussion on Rehearing

¶9Having properly supplemented the record to accurately reflect the proceedings before the Special Master, Respondent, on Rehearing, properly presents the following issues:

1. Respondent objects to the Commission’s Supplemental Conclusion of Law No. One because the constitutional provisions do not give proper notice and fair warning to those to whom they are directed. Respondent further objects that the provisions contain vague and indefinite phrases that deny due process of law;

2. In response to the Commission’s Supplemental Conclusions of Law Nos. Five and Six, Respondent contends that the Forgiveness Doctrine applies;

3. Respondent objects to the Commission’s Supplemental Conclusion of Law No. Seven. Respondent maintains that the Texas Government Code requires the Commission to publish its annual report; and

4. Respondent objects to the Commission’s Supplemental Conclusion of Law No. Eight, complaining that his due process rights have been violated since he was denied the opportunity to make an oral argument before the Commission regarding the constitutional issues.

¶10*5641.Challenges of “Vague and Overbroad”

¶11In Point of Error No. One on Rehearing, Respondent objects to the Commission’s Supplemental Conclusion of Law No. One because the constitutional provisions do not give proper notice and fair warning to those to whom they are directed. Respondent further contends that the constitutional provisions contain vague and indefinite phrases that deny due process of law.

¶12The Commission’s Supplemental Conclusion of Law No. One .stated as follows:

The following provisions of the Texas Constitution and of the Code of Judicial Conduct are not unconstitutionally vague or overbroad, either on their face or as applied to Judge Barr’s conduct:

1. Article V, Section l-a(6)A of the Texas Constitution.

2. Code of Judicial Conduct, Canon 2A.

3. Code of Judicial Conduct, Canon 3B(3).

4. Code of Judicial Conduct, Canon 3B(4).

5. Code of Judicial Conduct, Canon 3B(6).

6.Code of Judicial Conduct, Canon 3B(8).2

¶13While vagueness and overbreadth doctrines are generally used to challenge the validity of laws defining criminal conduct, the prohibitions against vagueness and overbreadth also extend to regulations affecting conditions of government employment. In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib. 1998, pet.denied) (citing In the Matter of Seraphim, 97 Wis.2d 485, 294 N.W.2d 485, 492 (1980)). It appears from the cases which have addressed the question of unconstitutional vagueness in this context that a greater degree of flexibility is permitted with respect to judicial discipline than is allowed in criminal statutes. Id.(citing In the Matter of Seraphim, 294 N.W.2d at 492). The constitutionality of necessarily broad standards of professional conduct has long been recognized. Id.(citing In re Gillard, 271 N.W.2d 785, 809 (Minn.1978)).

¶14A statute may be successfully challenged as vague if it does not clearly define the conduct regulated, and thus does not afford an individual fair warning of what conduct is prohibited. Halleck v. Berliner, 427 F.Supp. 1225, 1240 (D.D.C.1977). Moreover, a statute which clearly *565defines the conduct regulated may be unconstitutionally overbroad if it includes protected conduct ■within its prohibitions. Id.A statute is not necessarily invalid as vague or overbroad merely because it is difficult to determine whether marginal conduct falls within the statutory language. Id.

¶15Arguments in other jurisdictions that constitutional and statutory provisions for the discipline of judges were vague or overbroad have been consistently rejected on the ground that the Code of Judicial Conduct furnished sufficient specification of the judicial conduct which warrants disciplinary action. Id.Statutes and constitutional provisions which define in similarly broad terms the grounds for removal of judges from office have been upheld in In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib. 1998, petdenied); Napolitano v. Ward, 317 F.Supp. 79 (N.D.Ill.1970) (“for cause”); Keiser v. Bell, 332 F.Supp. 608 (E.D.Pa.1971); Halleck v. Berliner, 427 F.Supp. 1225 (D.D.C.1977); In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977); Nicholson v. Judicial Retirement and Removal Comm., 562 S.W.2d 306 (Ky.1978); and In re Gillard, 271 N.W.2d 785 (Minn.1978).

¶16In light of these decisions, we find no merit in Respondent’s contention that the standards he was found to have violated are unconstitutionally vague. While the Canons challenged in this matter may proscribe some speech and conduct which, for other persons in other circumstances, could not be constitutionally proscribed, Respondent’s contention that they are unconstitutionally overbroad must be and is rejected. It is well established that judges, in company with other public servants, must suffer from time to time such limits on these rights as are appropriate to the exercise in given situations of their official duties or functions. In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib. 1998, petdenied). The limitations imposed by the rules are made necessary by the very nature of the task which a judge seeks to perform. The citizens of the State of Texas ask nothing more, and expect nothing less. Respondent’s Point of Error No. One on Rehearing is overruled.

¶172.Applicability of Forgiveness Doctrine

¶18In Point of Error No. Two on Rehearing, Respondent contends that the Forgiveness Doctrine is applicable. Given our discussion and disposition of Respondent’s identical arguments on original submission, we overrule Respondent’s Point of Error No. Two on Rehearing.3

¶193. Commission’s Failure to Publish Its Annual Report

¶20In Point of Error No. Three on Rehearing, Respondent contends that the Texas Government Code requires the Commission to publish its annual report. Once again, given our discussion and disposition of Respondent’s identical arguments on original submission, we overrule Respondent’s Point of Error No. Three on Rehearing.

¶214. Denial of Opportunity to Make Oral Argument Before Commission

¶22In Point of Error No. Four on Rehearing, Respondent contends that his due process rights have been violated since he was denied the opportunity to make an oral argument before the Commission regarding the constitutional issues addressed above. We disagree.

¶23Absent a statement of objections to the report of the Special Master, the Commis*566sion may adopt the findings of fact of the Special Master as its own. In re Thoma, 873 S.W.2d 477, 485 (Tex.Rev.Trib.1994, no appeal); Tex.R. Rem’l/Ret. Judg., Rule 10(j). The findings of the Special Master, as adopted by the Commission, are tantamount to findings of fact filed by a trial judge in a trial without a jury, and as a result, are reviewed in that light. Thoma, 873 S.W.2d at 485. In the instant ease, Respondent did in fact file objections to that report. If a statement of objections is filed, the Commission shall give the judge and the examiner the opportunity to be heard orally before the Commission. Tex.R. Rem’l/Ret. Judg., Rule 10(j) (emphasis supplied).

¶24The record in the instant case demonstrates that upon proper supplementation, this Review Tribunal abated and remanded the cause to the Commission for entry of supplemental findings of fact and conclusions of law. No findings of fact were made by the Special Master or the Commission as to the constitutional issue complained of on review, nor were any requested. The Commission did however make its Supplemental Conclusion of Law No. Eight, noting that “Judge Barr has been accorded due process of law under the United States and Texas Constitutions, Chapter 33 of the Texas Government Code, and the Procedural Rules for the Removal or Retirement of Judges.”

¶25The extensive record in the instant ease includes a reporter’s record, both on original submission and on supplementation. As noted, we review the Commission’s adopted findings of fact for legal and factual sufficiency of the evidence to support them by the same standards applied in reviewing the legal and factual sufficiency of the evidence supporting findings in a civil case, either by a trial court or by a jury. Thoma, 873 S.W.2d at 485. If the Commission’s adopted findings of fact are supported by the evidence, given the standards set forth above, they are binding on this Review Tribunal. See County of El Paso v. Ortega, 847 S.W.2d 436, 441 (Tex.App.—El Paso 1993, no writ). On the other hand, this Review Tribunal’s review of the Commission’s Conclusions of Law are reviewable de novo. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.).

¶26We have once again reviewed the entire record in the instant case, both on original submission and on subsequent supplementation, and find that Respondent was not entitled to present oral argument before the Commission regarding the constitutional issues presented, since no findings of fact were made by the Special Master as to the complained-of issue, or later by the Commission. Respondent’s complaint is, in actuality, directed to the Commission’s Supplemental Conclusion of Law No. Eight, which is reviewable de novo by this Review Tribunal in any event. Given our disposition of Respondent’s constitutional issues, Respondent’s Point of Error No. Four on Rehearing is overruled.

¶27Respondent’s Motion for Rehearing is overruled in its entirety.