In a petition filed with the Texas Supreme Court on Thursday, Judge Sharon Keller challenges the constitutionality of the sanction she received two weeks ago from the State Commission on Judicial Conduct. The commission sanctioned the presiding judge of the Court of Criminal Appeals for failing to keep her office open past 5 pm on the day Michael Wayne Richard, a death row inmate, was scheduled to die.
Keller says the commission “acted in a lawless, unconstitutional manner” because, among other reasons, the “public warning” it gave her does not fall within the sanctions it can issue under the Texas Constitution. According to the petition, the Commission only has the authority to dismiss all charges, to issue an order of public censure, or to recommend the removal or retirement of a judge — none of which include a “public warning.” Keller charges that instead, the Commission followed a procedural rule from the Texas Supreme Court that conflicts with both the constitution and the government code. (Download Keller's full petition above).
A recent article in Texas Lawyer, mentioned in Keller’s petition, highlights the potential inconsistency. In it, Seana Willing, the commission’s director, questions the agency’s action toward Keller. Here’s an excerpt:
Willing ... argues the commission based its order on a rule that provides a larger range of possible sanctions than the constitution does. As proof that the rule does not comport with constitutional requirements, she points to a disparity between it and a constitutional provision regarding the number of commission votes needed to form a majority
The rule allows removal, retirement, censure and dismissal but also reprimand, warning or admonition. A censure is the highest sanction that the commission can issue, short of recommending a judge's removal or retirement; a public reprimand is a higher sanction than a public warning; a public warning is a midlevel sanction; and an admonition is the lowest public sanction.
The Supreme Court has requested a response from the commission on Keller’s petition by Aug. 6.