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A resolution to the dilemma over whether private firms can pay — or promise to pay — bonuses to law clerks at the Texas Supreme Court twice has eluded the Texas Ethics Commission. After discussing the issue for more than three hours on Oct. 12, the commission tabled an opinion drafted by its staff until its next meeting, tentatively scheduled for Nov. 9. Is the problem the commission’s reluctance to deal with a controversial issue or the refusal by members of the Supreme Court to accept the answer that the commission can give? Whatever is causing the delay, it’s time for a resolution. The commission has been tossing around the political hot potato since June 2001, and it’s been an issue of debate for more than a year. “We’ve been asked to issue an opinion that gives me a huge heartburn,” commission member Wales Madden III of Amarillo said at the Oct. 12 meeting. Texas Ethics Commission Chairman Lem B. Allen Sr. of Seguin said the panel has been asked to do something that he’s not sure it has the authority to do. Allen said that if the Legislature adopts a “bright line,” he’s afraid it would be stepping on the Legislature’s prerogative to decide the law and the court’s prerogative to set rules for its employees. “I think you’re the only game in town,” said Supreme Court Chief Justice Tom Phillips, who urged commission members to keep trying to find a solution. But Allen said the commission may not be able to give the Supreme Court the answer it wants. At issue is whether a firm can pay a bonus of up to $35,000 to future associates who have agreed to work at the Supreme Court for a year before they join the firm. The watchdog group Texans for Public Justice argues that the bonuses could give the firms that pay them too much influence over cases before the court — a contention disputed by Phillips. TPJ staff attorney Cris Feldman says, “Private subsidies from law firms with pending cases to court employees is a flagrant violation of basic integrity provisions in the penal code, enhancing the appearance of impropriety at the high court.” Lynne Liberato, former president of the State Bar of Texas and a partner in Haynes and Boone in Houston, requested the opinion to put to rest the controversy that began more than a year ago when Travis County Attorney Ken Oden questioned the legality of the bonuses. Under �36.08 of the penal code, state employees are barred from accepting a benefit from an outside interest for their public service. “I’ve tried to make it clear that I think [the bonuses] are prohibited; they’ve always been prohibited,” Oden says. “I think the indication from the [Texas] Ethics Commission is that prohibition will be continued.” Under the draft opinion tabled by the commission, it would be up to a judge or jury to decide if a bonus violates the penal code. Phillips voiced dissatisfaction with the proposal. He preferred an earlier draft of the opinion, which some thought gave the commission’s blessings to the bonuses. But Karen Lundquist, the commission’s general counsel, says the first opinion was misinterpreted. Oden says he will prosecute if improper payments are made to the clerks. Don’t look for anyone to be charged, however, because Oden says firms have suspended the bonuses. According to Phillips, the Supreme Court has rules that prohibit law clerks from accepting any benefit from a firm while working at the court. New rules being considered by the court would require the names of the clerks and the firms where they have agreed to work to be published on the Internet, he said. Although the Texas Ethics Commission asked to see the proposed rules, it isn’t likely to be swayed by them. “You can’t override a penal statute with a policy,” Lundquist said. The Legislature refused to modify the penal code to make the bonuses legal and, instead, passed a bill that would impose new restrictions on the law clerks — including requiring them to publicly recuse themselves from cases that posed conflicts with future employers. Gov. Rick Perry vetoed the measure. Phillips said if further restrictions are placed on law clerks, the clerkship program should be scrapped because the Supreme Court will be unable to compete with federal courts for top law school graduates. Federal rules leave it up to judges to determine the policies for their clerks, many of whom receive bonuses from firms. U.S. District Judge Sam Sparks of Austin bars his clerks from applying for jobs in the private sector until the final two months of their clerkships. Sparks says his policy hasn’t stopped the flow of applications to his court. Says Sparks, “The truth of the matter is, it’s never going to dry up in Austin; it’s a place where people want to go.”

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