Before the Presiding Judges of the Administrative Judicial Regions

Opinion Regarding Petitions for Access to

Records Regarding Assigned Judges

DATE: October 21, 2004

SPECIAL COMMITTEE: Judge John Ovard, Judge Olen Underwood, Judge B. B. Schraub, Judge David Peeples, Judge Darrell Hester, Judge Stephen B. Ables, Judge Dean Rucker, Judge Jeff Walker, Judge Kelly G. Moore

Rule 12.9 of the Rules of Judicial Administration provides that a person who is denied access to a judicial record may appeal the denial by filing a petition for review with the administrative director of the Office of Court Administration (“OCA”). OCA recently has received numerous requests that judicial officers be compelled to produce oaths of office, anti-bribery statements, and commissions for judges assigned pursuant to Chapter 74 of the Texas Government Code. The requests allege that the requested documents are mandated by the provisions of Article XVI, Section 1 of the Texas Constitution.

Generally, an active district, county, or appellate judge files the anti-bribery statement and the oath of office with the Secretary of State, who maintains those documents in that office. The Secretary of State then issues a commission to the judge, but does not keep a copy of the commission.

The status of the documents maintained by or for assigned judges is different. The Secretary of State does not issue commissions for assigned judges, so no such documents exist. The Secretary of State does not file oaths of office for assigned judges, so any oaths of office of assigned judges are maintained by the presiding judge in whose region the assigned judge is listed. The Secretary of State does maintain any anti-bribery statements executed by assigned judges.

Before 1999, many assigned judges did not execute a new anti-bribery statement or oath of office upon electing to serve on assignment. Thus, neither the Secretary of State nor the presiding judge making the assignment nor the assigned judge would have copies of anti-bribery statements, oaths of office, or commissions for these judges, because the documents do not exist.

In 1999, in Prieto Bail Bonds v. El Paso, 994 S.W.2d 316 (Tex.Ct.App.—El Paso 1999), the court held that assigned judges were required to take new oaths upon assuming their duties as assigned judge. After the Prieto decision, most assigned judges did make the anti-bribery statement and file it with the Secretary of State, and took the oath of office and filed it with the assigning presiding judge. However, some courts have disagreed with the Prieto decision and have stated that assigned judges are not required to take the oaths applicable to elected and appointed officials, because the oaths they took during their terms as active judges satisfy the constitutional requirements. Delamora v. State, 128 S.W.3d 344 (Tex.Ct.App.—Austin 2004); Hennington v. State, No. 11-97-00240-CR (Tex.Ct.App.—Eastland 2004 (not designated for publication)).

The petitions for review which OCA has received on this issue are asking the special committee to do things it cannot do. It cannot compel judicial officers to produce records that do not exist or are not in their possession. It also does not have the power under Rule 12 to compel a judicial officer to respond to a request for records.

We direct the administrative director of OCA to proceed as follows when that office receives a petition for review regarding oaths of office, anti-bribery statements or commissions of assigned judges. OCA shall forward the petition for review to the presiding judge in whose region the assigned judge is listed, and request that he or she respond to the petitioner if a response has not been sent. A copy of OCA's letter to the presiding judge shall be sent to the petitioner, with a copy of this opinion, and also to the other presiding judges. OCA shall take no further action on the matter, unless any of the presiding judges determines that the petitioner has shown that access to judicial records has been denied. In that case, OCA and the committee will proceed in accordance with Rule 12.9(d)-(m).