The rulings of Texas’ criminal court judges are above reproach — unless, of course, defendants have the time and money to appeal those decisions to a higher court that typically doesn’t reverse them.
Protections for criminal judges go far beyond favorable appellate rulings. Our magazine’s ongoing investigation of potential misconduct by several active and visiting retired Tarrant County judges has uncovered a statewide system that works to shield them from meaningful scrutiny or accountability.
Judge David Evans erroneously assigned one longtime misdemeanor criminal judge to several dozen criminal cases that included felony charges between 2015 and June 2022. Though Judge Daryl Coffey presided as a senior judge, he is only a visiting retired judge, not a senior judge — a title that can be bestowed only by Texas Chief Justice Nathan Hecht or by the Texas Supreme Court through petition. Hecht’s spokesperson confirmed that Coffey never sought senior judge status.
Administrative judges, who each oversee one of 11 judicial regions in the state, maintain lists of eligible visiting retired judges, who, if they wish to be assigned to criminal cases, must elect to become a type of judicial officer known as a senior judge. They can do this by sending the state chief justice, Hecht, a letter requesting that status within 90 days after retiring. Based on court documents, Coffey never completed the steps required to preside over any cases after his retirement, and Evans has ignored that reality for the past seven years.
Evans, who oversees the Eighth Administrative Judicial Region that includes Tarrant County, has also ignored our requests for comment.
The public deserves answers to another potential scandal we are uncovering. Several visiting retired judges in Tarrant County appointed on a case-by-case basis by Evans have neglected to take their oath of office on the first day of each trial as they are supposed to. The oath empowers judges to deprive defendants of liberty and property, and judges who fail to take that oath have had their rulings overturned. The concerted effort of visiting retired judges in Tarrant County and across the state to skirt this obligation connotes coordination among them and a mentality that “if everyone does it, then none of us can be held accountable.”
While active judges take their oaths at the beginning of their term of office and renew them with each reelection, retired judges do not have a home court, so they must take the oath on the first day of each new assignment. Visiting retired judges here and across the Lone Star State routinely dodge this constitutional requirement even though an oft-cited 1999 case from the Texas Court of Criminal Appeals, Prieto Bail Bonds v. State, reversed the ruling of a retired visiting retired judge because he had failed to renew his oath of office before presiding over the case.
“We can see no logic whereby a senior judge’s oath would survive an expired term of office,” the court’s final ruling read.
Since felony-level criminal judges, as opposed to misdemeanor criminal judges, must maintain an active law license, we reached out to the State Bar of Texas with questions about what disciplinary actions can be taken against active and visiting retired judges who commit unethical or potentially illegal acts. A spokesperson said the Bar does not comment on matters tied to judges because the Bar deals only with certifying and disciplining attorneys. The Bar referred us to the State Commission on Judicial Conduct, the only state agency focused on investigating and disciplining judges. The Texas Constitution created the commission in 1876 as a 13-member panel that proactively investigates judicial misconduct throughout the state. A spokesperson with the commission told us that answering questions about judicial misconduct would amount to giving legal advice, a service the commission does not provide.
One of our reporters also unsuccessfully attempted to ask the commission basic questions about Coffey’s apparently false senior title. Every question was met politely but firmly with a response that the commission does not give legal advice.
The commission rarely takes disciplinary action against judges. Although the commission has the authority to request the Supreme Court of Texas to suspend a judge from office, that step is also exceedingly rare. The vast majority of suspensions result from criminal indictments or convictions. Public sanctions — another way to discipline judges — are just slaps on the wrist. The commission issues an average of two per month. The names of judges given private sanctions are never publicly disclosed.
A spokesperson for Texas Chief Justice Hecht also declined to comment on our findings, saying that commenting would constitute giving “legal analysis.”
On two occasions, Judge Evans issued our magazine a long letter in which he scolded us for making inquiries into judicial misconduct.
“Compliance with the nineteen requests you have sent between March 8 and April 20 has substantially and unreasonably impeded the routine operations of the Eighth Administrative Judicial Region and will continue to do so,” Evans wrote.
Evans then went on to write that the records we are requesting are considered “closed and stored in bulk.”
Fort Worth Weekly, another Evans letter read, “still sends requests that do not reasonably identify the documents sought or which require clarification.”
One of many clearly worded requests from us reads, “Please find by this email my request under Rule 12 for copies of all sworn oaths filed by Judge Coffey with your office between Jan. 1, 2018, and March 8, 2022.”
Releases of documents from Evans’ office through what is known as Rule 12 requests have slowed. Multiple requests have been answered with large bills. Evans appears to be delaying and possibly denying our media requests even though the documents we seek should be readily accessible. If they are not easy to access, that may be by design. With few exceptions, each Rule 12 release from Evans’ office has only further entangled the Eighth Administrative Region in definitely questionable and potentially unethical dealings.
Our readers have learned from the scant documents that have been released so far that there is a loophole in the system of randomly assigning visiting retired judges to felony cases. Felony-level judges are assigned randomly in Tarrant County, but a little-known form that we discovered via Rule 12 shows that active judges can personally request visiting retired judges to cover cases for any number of reasons. Defendants would be horrified to learn that, based on our findings, many judges choose their replacements for personal reasons.
On Jan. 31, County Judge Chuck Vanover requested that he be replaced by Coffey for a mid-February two-day misdemeanor case. Vanover and Coffey are known to be friends. The documents released by Evans do not disclose what the charges were or the verdict. Judges are expected to miss court dates only for emergencies or mandatory continuing education courses. Vanover wrote on the Request for Assignment form that he would be “speaking at a police officer’s 25th-anniversary memorial,” a personal choice that does not qualify as a reason for requesting to be replaced by a visiting retired judge who is paid upwards of $500 a day by the county.
Coffey’s false title of senior judge raises serious questions about whether he was statutorily qualified to be assigned by Evans to cases that likely led to dozens of criminal convictions. The absence of any oath of office filed by Coffey since his retirement in 2015 raises doubts about his constitutional qualification to rule in court cases since then. Coffey, who is far from the only retired judge who routinely fails to file oaths, did file an oath as part of his choice to continue serving as a visiting retired judge, but that sworn statement simply verified that he met the requirements to be considered for approval as a senior judge.
Judges are unforgiving when it comes to enforcing paperwork for appeals and other legal actions. A missed filing deadline or improperly submitted form can mean a lost opportunity to overturn a wrongful conviction. These same judges, though, give great leeway to colleagues who file botched judicial paperwork.
Sloppy, incomplete, and missing legal documents abound in the Eighth Administrative Region. In February, based on court documents, Judge David Hagerman, citing an upcoming judicial conference, requested to be replaced by a retired judge who is not eligible for assignment. Judge Lena Levario is not on the public list of eligible judges which Hagerman clearly ignored or forgot about. The assignment was later canceled.
There’s also Judge Robert Brotherton, who has filed only one of two constitutionally required oaths, the anti-bribery one, since 2018, the scope of our request with the Texas Secretary of State’s office. Missing from Brotherton’s filings is the required oath of office that all visiting retired judges must sign and file as part of their choice to be a visiting retired judge. Brotherton also failed to follow Chapter 75 of the Texas Government Code by requesting senior status while still serving as an active judge. Retiring judges have a 90-day window after retirement to request senior status from Chief Justice Hecht, who may have disregarded state law when awarding Brotherton the title of senior judge regardless. Brotherton recently presided over the case of James Floyd Jr., a Black Fort Worthian subsequently sentenced to life in prison by a jury for aggravated robbery.
The legal and moral implications for the men and women who placed trust in a criminal justice system that willingly assigns disqualified judges to dozens of cases cannot be overstated. Evans owes answers to the public and every defendant he has assigned Coffey to since 2015. We asked a spokesperson at the district attorney’s office about the potential ramifications for the cases Coffey has overseen since 2015 and whether prosecutors knew about his false title and lack of oaths. Our questions were ignored.
This column reflects the opinions of the editorial board and not the Fort Worth Weekly. To submit a column, please email Editor Anthony Mariani at Anthony@FWWeekly.com. Submissions will be edited for factuality, clarity, and concision.
